The Arkansas Lawyer Summer 2015

The Arkansas

Lawyer A publication of the Arkansas Bar Association

2015-2016 Arkansas Bar Association President Eddie H. Walker, Jr.

Vol. 50, No. 3, Summer 2015 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 Jim L. Julian, Chair Haley Heath Burks Judge Brandon J. Harrison Ashley Welch Hudson Anton Leo Janik, Jr. Philip E. Kaplan Tory Hodges Lewis Drake Mann Gordon S. Rather, Jr. Tasha C. Taylor David H. Williams OFFICERS President Eddie H. Walker, Jr. Board of Governors Chair R. Scott Zuerker President-Elect Denise Reid Hoggard Immediate Past President Brian H. Ratcliff Secretary F. Thomas Curry Treasurer Shaneen K. Sloan Parliamentarian Leon Jones, Jr. Young Lawyers Section Chair Matthew L. Fryar BOARD OF GOVERNORS Arkie Byrd Thomas M. Carpenter Sterling Taylor Chaney Suzanne G. Clark Don R. Elliott, Jr. Frances S. Fendler Buck C. Gibson Amy L. Grimes Paul W. Keith Leslie J. Ligon Jeffrey Ellis McKinley Jerald Cliff McKinney II Wade T. Naramore Laura E. Partlow Kristin L. Pawlik Brant Perkins Robert M. Sexton Derrick W. Smith Brian A. Vandiver Danyelle J. Walker Andrea Grimes Woods LIAISON MEMBERS

Brian M. Clary Judge Mary S. McGowan

Judge James O. Cox Jack A. McNulty

Stephen A. Hester Richard L. Ramsay

Karen K. Hutchins Judge Chaney Taylor

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 2015, Arkansas Bar Association.

All rights reserved.

The Arkansas

Lawyer Vol. 50, No. 3

features

10 2015-2016 Arkansas Bar Association President Eddie H. Walker, Jr.

By Anna Hubbard

Cover photo by Steven Vech - www.thinkdero.com 14 Review of Handling Appeals in Arkansas, 2015 edition

By Cathy Underwood 16 Legislative Update: A Report on the Regular and First Extraordinary Sessions of the 90th General Assembly

By Jack A. McNulty 20 Language Matters

By Mara Simmons 30 The Article 9 Individual Debtor Name Rules in Arkansas

By Richard E. Ulmer 36 Legal Responses to Human Trafficking in Arkansas

By Annie B. Smith 44 Edward Cross: Supreme Court Judge, Congressman, Supreme Court Justice and Railroad President

By Judge J.W. Looney

Contents Continued on Page 2

Lawyer The Arkansas Vol. 50, No. 3

in this issue ArkBar News

4

Arkansas Foundation New President

14

2015 ArkBar Annual Meeting

26

ArkBar Governance Report

46

Disciplinary Actions

50

Arkansas Bar Foundation Memorials and Honoraria

54

In Memoriam

55

Classified Advertising

56

columns President’s Report

7

Eddie H. Walker, Jr.

Young Lawyers Section Report

9

Matthew L. Fryar

The Arkansas

Lawyer A publication of the Arkansas Bar Association

Vol. 50, No. 1, February 2015 online at www.arkbar.com

For information on submitting articles for publication, go to http://tinyurl.com/ thearkansaslawyermag or email ahubbard@arkbar.com

Inside: ArkBar Lawyer Legislators Tort Reform Retirement Planning Same Sex Marriage

Arkansas Bar Association

2224 Cottondale Lane, Little Rock, Arkansas 72202

HOUSE OF DELEGATES Delegate District A-1: Jon B. Comstock, Andrew T. Curry, Angelia Esparza Muldoon, Ryan Scott, Vicki S. Vasser Delegate District A-2: William Fitzgerald Clark, Bob Estes, Matthew L. Fryar, Michael Scott Hall, Jason M. Hatfield, Brian C. Hogue, Leon Jones, Jr., 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, Kenya Gordon Davenport, 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 III, Patrick W. McAlpine, Kathleen Marie McDonald, Jeremy M. McNabb, Chad W. Pekron, John Pesek, John Rainwater, Robin L Sullivan, W. Carson Tucker, Jonathan Q. Warren, J. Adam Wells, David H. Williams, Thomas G. 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, Jason Mark Milne Delegate District C-4: Kara Lynn Byars Delegate District C-5: Matthew Coe, Sara Rogers, Albert J. Thomas III Delegate District C-6: Michael L. Murphy Delegate District C-7: Jimmy D. Taylor Delegate District C-8: Kandice A. Bell, Brent J. Eubanks, John P. Talbot Delegate District C-9: Chase Adam Carmichael, Jenny Denise Chambers-Lemoine, Lee Douglas Curry Delegate District C-10: George M. Matteson Delegate District C-11: Sterling Taylor Chaney, Taylor Andrew King Delegate District C-12: Kurt J. Meredith, Michelle M. Strause Delegate District C-13: Brian M. Clary, John Andrew Ellis, Law Student Representatives: David Trent Harrison, University of Arkansas School of Law; Eruore O. Oboh, UALR William H. Bowen School of Law

2

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Vol. 50 No. 3/Summer 2015 The Arkansas Lawyer

3

ArkBar NEWS

2015 Leadership Academy Graduates

ArkBar 2015-2016 Committee Chairs President Eddie H. Walker, Jr., appointed the following members to serve as committee chairs. Thank you to all committee members who volunteer their time, talent and expertise to the Association.

Congratulations to the 2014-2015 graduating class: pictured l to r: Brice R. White, Media Wilkins, Kandi Hughes, Guy Benjamin Barham, Sarah R. Tacker, Kendra Khrystal Pruitt, Amy M. Pritchard, Dusti Standridge, Caleb Peter Garcia, Joshua Reed Thane. Not pictured Marcus N. Bozeman, Ryan J. Caststeel.

Photos by Steven Vech - www.thinkdero.com Applications for the 2016-2017 Leadership Academy will open in the Fall of 2016.

800-Year Anniversary of the Magna Carta Nearly 800 years ago, on June 15, 1215, the Magna Carta was sealed by King John of England placing limits on the royal power for the first time. The Magna Carta is considered the basis for many of the principles that form the Constitution and Bill of Rights.

Save the Date for the Mid-Year Meeting January 27-29, 2016 • Little Rock 4

The Arkansas Lawyer

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Annual Meeting: Aaron L. Squyres Arkansas Bar Commission on Diversity: Caleb Peter Garcia and Jo Ellen Carson Arkansas Bar PAC: Bob Estes Audit: Vicki S. Vasser Continuing Legal Education: Brian M. Clary Editorial Advisory Board - The Arkansas Lawyer: Jim Julian Editorial Board for Handbooks: Caroline Curry Lewis and Judge David M. (Mac) Glover Finance: Shaneen K. Sloan Governance: Fred S. Ursery Investment: Tom D. Womack Judiciary: Richard F. Hatfield and Judge John F. Stroud Jurisprudence and Law Reform: Brandon K. Moffitt Law Related Education: Beverly I. Brister Law School: Harry A. Light Lawyers Assisting Military Personnel: Brenda Sue Simpson Lawyers Helping Lawyers: C. Michael Daily Leadership Academy: Anthony A. Hilliard Legal Forms: Carrie E. Bumgardner Legislation: Kristin L. Pawlik Member Benefits: Christopher W. Burks Mock Trial: Barrett Moore Past Presidents: Charles L. Harwell Personnel: Mark W. Hodge Professional Ethics: Brad L. Hendricks Social Media: Matthew Kezhaya Underwriting: Rosalind M. Mouser Uniform Laws: Brant Perkins and Elisa M. White Website/Technology: Patrick Lewis Women in the Profession: Misty W. Borkowski and Ginger M. Stuart

ArkBar NEWS

Oyez! Oyez!

Filing Petitions Due October 31, 2015 For 2017-2018 ArkBar President

Accolades The American Board of Trial Advocates presented its highest honor, the ABOTA Lifetime Achievement Award, to Gordon S. Rather, Jr. of Wright, Lindsey & Jennings LLP. Arkansas Business selected the following members for inclusion in the 2015 “Forty Under 40” class: Lori L. Burrows, Arkansas Electric Cooperatives; Chad Causey, Arkansas Aerospace & Defense Alliance/Noble Strategies; Anthony C. Johnson, American Injury Attorney Group; Nicole Lovell, Mitchell Williams Selig Gates & Woodyard PLLC; Kathleen M. McDonald, Beacon Legal Group PLLC; Clarke Tucker, Quattlebaum, Grooms & Tull PLLC

Appointments and Elections Lieutenant Colonel Charles Jason Carter was appointed as State Judge Advocate for the Arkansas National Guard. Eric F. Walker has been named the new Assistant Dean for Career Services at UALR Bowen School of Law. The Rose Law Firm announced that Craig S. Lair is the new chief executive officer. Douglas M. Carson of Daily & Woods, PLLC in Fort Smith, was selected to be a brief grader for the American Bar Association’s National Moot Court Competition finals. The Arkansas Society of Association Executives elected Karen K. Hutchins as vice president and she will assume the office of president in July 2016.

Word About Town The Arkansas Department of Education announced that Anthony Owen has been selected as the new coordinator of computer science. Brian Vandiver joined the law firm of Cox, Sterling, McClure & Vandiver, PLLC in Little Rock. Barber Law Firm PLLC recently hired Michael W. Langley, former Director of Arkansas Alcoholic Beverage Control, as of counsel.

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

ArkBar Staff Anniversaries Two Arkansas Bar Association staff members celebrated milestone anniversaries this summer. Executive Administrative Assistant Michele Glasgow celebrated her 15-year anniversary and Publications Director Anna Hubbard celebrated her 10-year anniversary with the Association.

“Michele is the go-to person in the Association for volunteer and staff alike to find information on Association history Glasgow and Hubbard and governance,” said Executive Director Karen Hutchins. “She keeps a watchful eye on the Association’s leadership providing assistance in planning their busy meeting and travel schedules.”

“Anna works gracefully with authors to keep our publications on target with timely legal articles,” Hutchins said. “She continuously seeks out new ways to keep our readers interested in the Association’s publications.”

The President-elect of the Arkansas Bar Association is elected by the vote of the entire membership of the Association.

The position is rotated each year among the three state Bar districts. The next president-elect will come from Bar District C. Nominating petitions must be filed with the secretary at the Association’s office no later than October 31, 2015.

The petitions must be signed by at least 75 Association members. The petition signers must include at least 25 signatures from Association members residing in each of the three state Bar districts of the Association.

The member elected this fall will assume the office of president-elect at the June 2016 Annual Meeting in Hot Springs and will become the Association president in June of 2017.

ArkBar 2015-2016 Section Chairs Alternative Dispute Resolution: Jon B. Comstock Civil Rights: Brent J. Eubanks Construction: Richard C. Downing Criminal: Pamela E. Panasiuk Debtor/Creditor: Philip R. Principe Elder: Aaron David Heller Environmental: Lorielle Blackwell Gutting Family: Jocelyn A. Stotts Financial: William Lance Owens Health: Amber Wilson Bagley International & Immigration: Misty W. Borkowski Natural Resources: C. Michael Daily Probate & Trust: Lori Holzwarth Real Estate: J. Cliff McKinney II Section of Taxation: Jeremiah D. Wood Solo, Small Firm & Practice Management: William Phillips Allison Tort: Robert Lamb Beard Workers’ Compensation: Steven R. McNeely

Vol. 50 No. 3/Summer 2015 The Arkansas Lawyer

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news

Meet the 2015-2016 Arkansas Bar Association Officers The Arkansas Bar Association began its 2015-2016 Bar year on July 1, 2015.

President Eddie H. Walker, Jr., along with the new officers, welcome you and thank you for your membership.

President

President-Elect

Board of Governors Chair

Treasurer

Eddie H. Walker, Jr. Walker, Shock & Harp, PLLC Fort Smith

Denise Reid Hoggard Rainwater Holt & Sexton Little Rock

R. Scott Zuerker Ledbetter, Cogbill, Arnold & Harrison, LLP Fort Smith

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

Secretary

Young Lawyers Section Chair

Parliamentarian

Tom Curry McMillan, McCorkle, Curry & Bennington, LLP Arkadelphia

Matthew L. Fryar Cypert, Crouch, Clark & Harwell PLLC Springdale

Leon Jones, Jr. Director, Arkansas Department of Labor Little Rock

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The Arkansas Lawyer

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PRESIDENT’S REPORT

Unity Has Value!

By Eddie H. Walker, Jr.

I am excited about the opportunity to serve as the President of this Association and again thank you for this honor. One of my goals is to persuade you that the value of membership in the Arkansas Bar Association greatly exceeds the cost of dues.

Value, much like success, means different things to different people. However, hopefully we can all agree that assisting lawyers in achieving objectives that they have sworn are important to them is valuable.

When Arkansas lawyers are admitted to practice law, we solemnly swear or affirm: I will, to the best of my ability, abide by the Arkansas Rules of Professional Conduct and any other standards of ethics proclaimed by the courts, and in doubtful cases I will attempt to abide by the spirit of those ethical rules and precepts of honor and fair play.

The preamble to the Arkansas Rules of Professional Conduct addresses a lawyer’s responsibilities: A lawyer, as a member of the legal profession, is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice.

As a representative of clients, a lawyer performs various functions. As advisor, a lawyer provides a client with an informed understanding of the client’s legal

rights and obligations and explains their practical implications.

As advocate, a lawyer zealously asserts the client’s position under the rules of the adversary system.

As negotiator, a lawyer seeks a result advantageous to the client but consistent with requirements of honest dealing with others. As an evaluator, a lawyer acts by examining a client’s legal affairs and reporting about them to the client or to others.

The Association provides its members benefits that enable them to better fulfill the responsibilities that are inherent in accepting the privilege of being licensed to practice law. Unity of purpose is important to the legal profession. The energy and momentum created by lawyers of varied backgrounds, age, gender, race and geographic location will enable the Association to serve lawyers in a way that is not possible without the unity that occurs when a group focuses on common objectives. We are more than the sum of our parts.

Lawyers ultimately pledge to serve the public. The Association serves lawyers. Therefore, any member benefit that helps lawyers better serve clients in particular and the public in general has value.

The Association has benefits such as Fastcase and weekly case summaries, either of which is worth more than the cost of membership. It also has SoFi which is extremely valuable to lawyers who have student loan debt because consolidation of that debt can save lawyers thousands of dollars

during the repayment period.

While the tangible member benefits are worth more to a member than the cost of dues, the intangible value of membership is what has caused me to be a member of this Association for more than 35 years. That intangible value is relationships!

There is no legitimate reason not to share our talents and resources. We, as lawyers, are the guardians of justice. However, if we feel we can’t have a great impact, we may do nothing at all.

We may not engage. The support and encouragement that one experiences as a member of this Association causes one to want to do better. The Association helps new lawyers become good lawyers and helps seasoned lawyers become better lawyers.

We sometimes make poor choices because we do not have an awareness of all of the options.

The Association constantly strives to identify methods and opportunities that will expand the options available to its members. By increasing its member base, the Association will be better able to continue its ongoing endeavors to evaluate existing member benefits to determine whether they are still relevant and to identify and create new opportunities for its members that further encourage and enable lawyers to fully develop their potential.

As lawyers we must remember that our achievements are the product of many factors, not just our own hard work, our own courage, our own intelligence.

Thus, we should not be reluctant

Eddie H. Walker, Jr., is the president of the Arkansas Bar Association. He is a partner with Walker, Shock & Harp, PLLC in Fort Smith.

to share our good fortune with others.

Many of you have told me that you would like to help in making this a successful bar year. So here are some things that I would like for you to do: 1. Recruit at least one new member. If you will explain to them how the value of membership greatly exceeds the cost of dues, recruitment should not be difficult.

2. Contact a lawyer with whom you do not ordinarily associate and who is different than you regarding age, gender, or race and invite him or her to lunch or to some face-to-face social activity and discover the value of expanding your human experience. If you cannot come up with a better explanation for the contact, simply tell them that the President of the Arkansas Bar Association asked you to please do it.

Membership in this Association has provided me unimagined opportunities and has allowed me to develop friendships with people who I otherwise probably would not have ever met. It can do the same for you if you will become actively involved in the Association.

Help the Bar help you! Be a member! Recruit a member! 

Vol. 50 No. 3/Summer 2015 The Arkansas Lawyer

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The Arkansas Lawyer

www.arkbar.com

Heather Larkin, JD, CPA President and CEO

YLS REPORT

The Wonder of a New Year

By Matthew L. Fryar

As many of you know, I have two young daughters—Katie is five, and Anna is four. I have learned many interesting things from my children. First, girls are just as messy, and just as loud, as boys are. Second, Barbies are much easier to dress than Polly Pockets. Maybe most importantly of all, though, the world around us is absolutely fascinating! My children find wonder and enjoyment in the most mundane of things, and I love watching them explore.

My daughters have taught me, in the purest sense, the meaning of a word which is oft used but rarely appreciated: wonderful.

As I begin this year of service to YLS, I am trying to maintain this outlook on life which comes so naturally to my girls. It is too easy to become bogged down by the routine of our lives and activities, but if we were able to see the world through the filters which my children wear, we would find a renewed excitement about what we do, who we do it with, and how we go about it. I encourage each of you, as you embark on another year as members of the Arkansas Bar Association, to take a second look at your families, your friends, your jobs and co-workers, and your involvement in the Bar Association and YLS; try to find that wonder and innocence with which my children perceive the world.

It is an exciting time to be a

Matthew L. Fryar is the Chair of the Young Lawyers Section. He is a partner with Cypert, Crouch, Clark & Harwell, PLLC in Springdale. young lawyer in Arkansas! I am thrilled to be the chair of YLS this year, and I hope that all of the “young” lawyers in the association will find an opportunity to be engaged in the activities of YLS. Remember, if you are 36 or younger or have been licensed for five years or less, you are a “young” lawyer, and your membership in YLS is automatic when you join the association. I invite each of you to personally reach out to me. If you want to find a way to get involved in YLS, I promise to you that I will find you the right place to serve. Below are a few of the projects on which YLS will be focusing over the next year: Wills for Heroes One of the projects which YLS has historically been involved in is the Wills for Heroes program, in which young lawyers provide pro bono estate planning to members of the law enforcement and first responder communities. My goal is to hold at least three of these events over the next 12 months, each in a different part of the state. I hope that all of you will dedicate a few hours to volunteer for these events when they are held in your area!

Domestic Violence Handbook Another project that I am very excited about moving forward is a new Domestic Violence Handbook, which will be the result of

a partnership between YLS and the Administrative Office of the Courts. Once it is written, YLS will utilize a $2,000 grant from the American Bar Association to fund the handbook’s publication and its distribution to domestic violence shelters and circuit clerk’s offices across the state.

Debt Counseling As law students become lawyers, one of the heaviest burdens faced is the student loan debt accumulated during both college and law school. I plan for YLS to institute a series of debt counseling programs at both of the law schools to help tomorrow’s attorneys prepare for this challenge.

Legislation Every two years, the House of Delegates considers suggested legislative reforms for inclusion in the association’s legislative packet for the General Assembly’s session. This year, I intend to propose legislative reforms concerning the use of restraints on juvenile defendants appearing in court, extension of medical leave rights under state law, and development of a student loan forgiveness program for young lawyers who agree to practice in underserved rural areas of the state.

Local Social Events This year, we will be holding small local social events through-

out the state so that all YLS members will hopefully have a gathering close enough to where they live and work that they can spend a couple of hours in fellowship with other young lawyers.

Keep an eye on your ACE and Facebook feeds to learn when and where these events will be held.

American Bar Association I am very pleased that Little Rock will be the host city for the American Bar Association Young Lawyers Division Fall Conference in October 2015.

There will be hundreds of young lawyers from across the country in our beautiful state! Please consider this a personal invitation for each and every one of you to attend this conference, meet your peers from other states, and help us show our visitors why Arkansas is the best place in the country.

In closing, I thank you for the opportunity to serve as your YLS chair, and I invite you to join me in looking at our involvement in the association, our unique position as young lawyers, and our obligation to the world around us and to one another through a fresh set of wonder-filled eyes! 

Vol. 50 No. 3/Summer 2015 The Arkansas Lawyer

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Eddie H. Walker, Jr. 2015-2016 Arkansas Bar Association President Article by Anna Hubbard, Photo by Steven Veach, www.thinkdero.com

“There are two kinds of people. Those who think they can, and those who think they can’t.

They are both right.”

Eddie H. Walker, Jr., acknowledged Henry Ford’s classic quote during his swearing-in speech in which he clearly showed himself to be in the first category of can-do people.

Eddie was sworn in as the 118th, and first black, president of the Arkansas Bar Association on June 12, 2015. Arkansas Supreme Court Justice Paul E. Danielson administered the oath during the swearing-in ceremony at the Association’s annual meeting in Hot Springs.

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“Unfortunately a lot of lawyers sometimes think that civility and effectiveness don’t go hand in hand, when in actuality they do. When you look at the most successful lawyers, typically they are going to be the lawyers who understand the importance of civility.”

Eddie remarked on the importance of inclusivity in preserving justice during his speech: This country was founded on the idea that we the people are entitled to life, liberty and the pursuit of happiness. Justice is the process that provides us a fair shot at these ideals. Lawyers are the guardians of justice.

We help maintain civility in society because we recognize the importance of tradition, but we are also the agents of change in society because we understand the transformative power of the law. We are accustomed to solving problems that we didn’t create, we are trained to be objective thinkers and we can anticipate things that for other people would be unintended consequences. Lawyers are awesome. And I’m glad to be one.

However, we fall short of our true potential when we fail to realize that unity matters. The tapestry of ideas and the varied gifts and talents that are available when inclusivity is interwoven into our daily activities create a stronger more effective legal community.

Shaping Values Raised in a single-parent home in Gethsemane, Arkansas, a small farming community in Jefferson County, Eddie and his two sisters thrived under his mother Jammie’s care. Despite growing up in “very modest circumstances” his mother maintained a positive attitude that helped Eddie to cultivate optimism as well.

“My mother understood the importance of being able to get along with people,” Eddie said. “One of the valuable things that she taught me was to basically be nice to folks.

There is value in ‘please,’ ‘thank you’ and ‘excuse me.’ Those things don’t cost you anything. You can’t be any worse off by being nice to people. It’s a no-lose proposition.”

Eddie’s small-town roots provide him with a unique perspective and sensitivity to the need for considering a multitude of factors before making a decision.

“Having come from a small town, it causes me to be sensitive to the fact that there are a lot

of people who consider themselves outsiders when you look at the mainstream of society.

People from small towns typically don’t consider themselves part of the decision-making process. A lot of times when people engage in the decision making process they don’t consider the impact of that decision as much as they should. When you live a somewhat insulated life, you have the tendency to forget about the far-reaching effects of your decisions. So being from a small town has sensitized me to that to some extent and I think that is good.”

Eddie’s mother also understood the value of education. Eddie and his two sisters were firstgeneration college graduates. He went to elementary school in Gethsemane and graduated high school from Wabbaseka, a slightly larger town nearby. He attended the University of Arkansas from 1967 until 1971. Eddie was active in student government, was a counselor in the residence hall and was selected by his classmates to Who’s Who. After a break, he went to the University of Arkansas Law School and graduated in 1978. He decided that he wanted to go to law school while in college. “I am not one of those people who knew what I wanted to do from childhood,” he said.

Good leaders are good listeners. Immediate Past President Brian H. Ratcliff spoke to Eddie’s good listening traits in an article in the High Profile section of the Arkansas Democrat-Gazette: “I think Eddie Walker will make an excellent president,” says Ratcliff.

“He’s well-spoken, and one thing about Eddie, he will listen before he talks—and that’s not always easy to do.”

Eddie said he probably developed that trait as a result of being from a small town. “It was quite a culture shock for me when I moved to Fayetteville. Most of the kids had gone to schools much larger than the school that I went to and I figured out pretty quickly that if I would listen, I could learn before I spoke and embarrassed myself. That has served me well through the years.”

Shaping a Career Eddie is a partner in the law firm Walker, Shock and Harp, PLLC in Fort Smith where he primarily focuses on workers’ compensation. His focus in this area of law started soon after the start of his career. He remembers

getting a call early on, when he had been with the Western Arkansas Legal Services in Fort Smith for less than a year, from a colleague encouraging him to apply for an opening at the Workers’ Compensation Commission.

“I said I don’t know anything about workers’ compensation, and he said you never know what might happen,” Eddie recalled.

“So I came down to Little Rock and did the interview, and got hired. During the process of working there for several years, I felt like there was a niche that could probably be better served by someone who primarily focused on workers comp, so I left the commission, hung up my shingle, and the rest is history.”

Family Values Eddie and his wife of 27 years, Gwen, have three children: a son Jammie who is 25 and two daughters, Johannah, 22, and Janelle, 20. The children grew up attending the Association’s annual meeting in Hot Springs with their parents.

“We used to bring our kids to the bar meetings all the time,” Eddie said. “Rosalind Mouser used to bring her son and we would call our kids the ‘bar babies’ because they were always there.”

Past President Rosalind Mouser said that seeing Eddie with his family at the bar meeting was encouraging to her.

“Almost 30 years ago, I began to observe Eddie Walker as a Bar Association leader,” Rosalind said. “Then and now, he embodies the characteristics of a strong, effective leader. He invites all members of the group to the table. He effectively listens to all points of view. He makes wise decisions when the group is not unanimous. And, one of the most special skills?—he included his wife and children at all of the annual meetings. It was clear—they were a team! As a young, then-single, female attorney, this last skill was not lost on me. Eddie proved to me we could all be good attorneys, effective Bar Association leaders, and good family members.”

Growing up in a single-parent family, Eddie said he promised himself that he would be a dedicated father if he had children. When his kids were growing up, he did not take time for any hobbies of his own. He made sure he

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left photo: Johannah, Eddie, Gwen, Jammie and Janelle on a family vacation; right photo: Johannah, Jammie, Janelle and Eddie at the 2004 Annual Meeting attended all of their activities including ball games, piano recitals and dance recitals.

“If my kids had something going on, I figured out a way to be there,” he said. “So I didn’t have a lot of leisure time. I’ve always kind of thought I would like to be a musician but I never got around to taking lessons. So I let my kids do it. All of my kids took piano. I think we have a set of drums, a flute, a violin, a piano and a saxophone at my house. So all I need to do is learn how to play that stuff and I can have my own band!”

Scott Zuerker, Eddie’s longtime friend, colleague and current Board of Governor’s Chair, reflects on Eddie’s decisive commitment to family: “I can recall, early in my career and while I happened to be working for Eddie, he came in one day and explained to Bill Kropp and me that he and Gwen had been presented with an opportunity to adopt a child and that they were considering doing so,” Scott said. “My recollection is that this conversation occurred around the same time that Bill was considering buying a car. Well, the following morning Eddie came into the office and informed us that he and Gwen had in fact made the decision to adopt and would soon be the proud parents of three children. Bill and I were amazed. Bill or I one blurted out that it didn’t take Eddie as long to make such an important decision as adopting a child as it took Bill to pick out a car. That’s what you get with Eddie Walker. He is not afraid to make an important decision, and he is not afraid to do what he thinks is right. Our Association is lucky to have a leader who will not hesitate to make the right decision as well as a man who follows his moral compass. I fully expect Eddie to be every bit as dedicated to the stewardship of our Association as he is to his family and friends.”

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Unity The disconnect between lawyers needing work and people needing legal assistance is one of the biggest challenges facing the legal profession today, Eddie believes.

“There’s got to be some way to close that gap. One of those things that might help close that gap is the existence and use of technology.

If lawyers can become more efficient at what we do, overhead goes down. So if cost goes down then we should be able to serve people at a price point that is a little lower than we might otherwise expect.”

“If you are open-minded sometimes opportunities come up, and if you accept the challenge, typically you end up benefitting more than the people whom you served,” Eddie said.

“One of the things that I have found among lawyers is a sense of dedication to community.

Most lawyers whom I know are doing some kind of free public service. They are on some kind of board, on some kind of community level committee or providing some kind of legal advice to some charitable organization.”

Eddie has a long history of sharing his talents and resources with his community. He has served as president of the Sebastian County Bar Association, served on the board of the Western Arkansas Legal Services and the board of Western Arkansas Ballet. He is a former board member of the Fort Smith United Way. He is an active member of the First United Methodist Church in Fort Smith, where he has served on the Administrative Board and as a youth program leader. He continues to be a Sunday school teacher there. His service as a board member and president of the Western Arkansas Ballet developed during the course of his son Jammie’s involvement with the ballet. He said it was an unlikely involvement for someone coming from a small country town

who had never been exposed to ballet.

Eddie’s daughter Johannah is going to law school this fall at the University of Michigan in Ann Arbor. She said that growing up going to the Bar Association meetings helped cultivate her desire to go into the legal field. “I think being inundated with that culture helped me to realize the vast possibilities that are available in the legal profession.”

She said that one of the important things that Eddie taught her was the importance of “showing up.”

“He always told me that the most important thing that you can do to set yourself apart is to just show up,” Johannah said. “If you show up and do what you are supposed to do at a quality level, you will be recognized and noticed, which may lead to a possible mentorship. You never know what opportunities are available if you don’t show up.”

Value of Relationships Finding ways for lawyers to interact with each other is another major challenge facing the legal profession, Eddie believes. This is especially true for the relationships between the older and younger lawyers.

“We have an aging lawyer population.

Unless we somehow figure out how to get older and younger lawyers to form relationships, at some point we are going to have a bunch of older lawyers who are dying or retiring and we don’t have anyone to come in and take over their practices. It’s really a relationship that needs to be cultivated, and I’m not sure that a lot of people are identifying the value of such a relationship.”

Eddie said that younger lawyers could be good for older lawyers because of their knowledge of and ability to use technology. Older lawyers can be beneficial to younger lawyers

left photo: Eddie and Gwen Walker, Justice Paul Danielson during swearing-in ceremony; right photo: Eddie giving swearing-in speech because of their experience and because of their ability to help them to learn that you can be civil and still be an effective lawyer.

“Unfortunately a lot of lawyers sometimes think that civility and effectiveness don’t go hand in hand, when in actuality they do.

When you look at the most successful lawyers, typically they are going to be the lawyers who understand the importance of civility.”

“Television legal programs may influence how some younger attorneys view the legal profession and provide an unrealistic concept of what success means,” Eddie said. “People see TV lawyers and they think that’s what practicing law is all about—the glamour and the glitz,” Eddie said. “And that’s really not true.

Most of lawyering is rolling up your sleeves and doing the work and it’s helping people.”

“Certainly you can be successful as a lawyer financially and you can be successful as a lawyer in terms of doing good for society and those two things are not mutually exclusive,” he added. “I think that if you do a good job for your clients, then financial reward is going to be, to some extent, a result of that. But you have to also recognize that that’s not the whole picture. That’s one of the reasons that I believe our code of professional conduct makes such a big deal out of lawyers needing to make a conscious effort to provide pro bono work.

And that’s why the oath that we swear to when we are admitted to the bar talks about helping the defenseless and helping the needy.

Unfortunately, I think some people have a tendency to look at the practice of law like it’s a commercial enterprise just like going out and selling goods. I happen to think that it’s more than that.”

“The value of relationships in the legal community has far-reaching benefits and cannot be overemphasized,” Eddie said. “As far as

lawyers are concerned, the Bar Association is the best instrument for creating opportunities for relationships.”

“An organization such as the Bar Association is set up in such a way that it can channel your energies and provide you with opportunities that will help you develop your potential that might otherwise take a long time to develop and it might even go unnoticed. Because a lot of times what might happen is that some seasoned lawyer happens to see what you are doing and happens to recognize that you’ve got potential that you didn’t realize that you had. Then because that person recognizes that potential, he or she encourages you to do things that will develop that potential. You might not even realize that is what is happening. So it’s a very meaningful experience in my opinion.”

“If I were not a member of the Arkansas Bar Association there are a lot of things that have happened during the course of my career that just wouldn’t have happened,” Eddie said.

Former Associate Director Judith Gray was very instrumental in getting Eddie involved in section and committee work and speaking at CLE programs, he said.

“She always encouraged me to do those things. It’s kind of amazing, encouragement from someone who you feel like knows what’s going on, what that does for you. And that’s another benefit of being in the Bar Association—for young lawyers to be encouraged by successful people, helping to benefit them in their legal career and developing their personality.”

Eddie has been an active member of the Association for more than 35 years. During that time he has served on the House of Delegates, the Executive Council, and numerous committees including the Judicial

Nominations Committee and the Committee on Professionalism. He has chaired the Board of Governors and the Workers’ Compensation Section. Eddie is a Fellow of the Arkansas Bar Foundation and a recipient of the C.E. Ransick Award of Excellence. Additionally, he has chaired the Arkansas Supreme Court Committee on Professional Conduct.

Past President Fred Ursury appointed Eddie as Board of Governors Chair in 2004 and said he is proud that Eddie is now president.

“I have known Eddie for a long time through the Bar Association and through the practice of law,” Fred said. “I was impressed with him from the beginning. When I became bar president a number of years ago the first thing I did was convince Eddie to become the chair of the Board of Governors. That appointment was probably the best thing I did as president.

Eddie showed great leadership ability. After that a number of us tried over the years to convince Eddie to run for Bar president because we knew he would be a great leader for our Association. Fortunately, he finally agreed to run. I know he will serve us well because he sets an example of excellence in the practice of law and service to the profession. I am proud that he is our president.”

Value of Membership “My overall objective is to try to impress upon lawyers that we’re a special breed, and if we would communicate with each other and share our gifts and talents with each other we could be even more special. I think that’s really what my focus is going to be—trying to get people to understand the value of being a part of a group such as the Arkansas Bar Association. I think if people understand the value of it, then it’s really a no-brainer to become a member.” 

Vol. 50 No. 3/Summer 2015 The Arkansas Lawyer

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Judge James O. Cox Elected Arkansas Bar Foundation President

Handling Appeals in Arkansas 2015 Edition Review by Cathy Underwood

Judge James O. Cox, of Fort Smith, began his term as President of the Arkansas Bar Foundation Board of Directors on July 1, 2015. Since 2009, Judge Cox continues to serve as Circuit Judge for the Twelfth Judicial District, Division VI. Prior to that time, he was in private practice in Sebastian County for more than 30 years, with the firms of Davis and Cox for 18 years and then Walker, Shock, Cox and Harp.

He has been a Fellow of the Arkansas Bar Foundation since 1997 and is a Sustaining Fellow. Judge Cox has served the Foundation as a member on the Board of Directors, as Secretary-Treasurer and Vice President, and on the Trust and Audit Committees.

He is a tenured delegate of the Arkansas Bar Association House of Delegates and received the Arkansas Bar Foundation and Arkansas Bar Association Outstanding Lawyer-Citizen Award in 1994.

Judge Cox has been active in his community as a past president of the Sebastian County Bar Association, Greenwood School District Board of Directors, and Greenwood Chamber of Commerce. He currently serves as president of the University of Arkansas at Fort Smith Board of Visitors, a member of the Board of Directors of the Arkansas Judicial Council, and a member of the Hendrix College Alumni Board of Governors. He and his wife, Patti, reside in Greenwood.

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Handling Appeals in Arkansas remains a practical guide for the novice and the experienced practitioner alike. Here you will find ready answers to procedural questions, guidance where further research is needed, and a feel for the lay of the appellate landscape. This manual covers all the major steps in a civil or criminal appeal and includes citations to the governing rules and case law, together with practical advice. The appendices contain useful forms, model briefs, and other resources. (From the Introduction) It has been my privilege to work on Arkansas Bar Association handbooks for over 30 years.

During the course of that time I have worked with some extraordinary lawyers. But there are none more professional, dedicated and excited about their work than the lawyers who wrote Handling Appeals in Arkansas. They set the bar, so to speak, for ArkBar Handbooks.

This book was first published in 1997 under the direction of Price Marshall and Leon Holmes. Every year since then, it has been reviewed and supplemented; each year the committee produced a cumulative annual supplement that replaced the previous year’s supplement. It was revised significantly in 2007 under the leadership of Judge Price Marshall and Rob Shafer, and the cumulative supplements began anew. Now, in 2015, under the direction of Judge Brandon James Harrison and Brett Watson, we have a new edition that not only provides excellent advice for attorneys pursuing appeals, but also incorporates some cuttingedge technology—something no other handbook committee has done.

If you purchase the electronic version of this book, you can take advantage of this technology. Exhibit 1 shows you how it works. Scan the table of contents and find the chapter you want. Click on that chapter heading in the table of contents and it links directly to the chapter. While reading the chapter, if you find a case you are interested in, you can click on the name of that case and it links directly to the case itself. All cases are included on the same electronic medium as the handbook, so there is no need to be linked to a legal research database; it’s all at your fingertips.

If you choose the hard copy format instead of the electronic, it comes in a 3-ring binder, so you can insert the yearly cumulative supplements at the back with ease. Both versions are available on the ArkBar website: https://www.arkbar.com/pages/practice_handbooks.aspx.

Cathy Underwood is an attorney/legal editor in Little Rock, Arkansas, and is the lead instructor in the paralegal program at Pulaski Technical College.

Exhibit I—demonstrates the new electronic features of hyperlinked cases. You can easily link to the chapter from the Table of Contents and then link from the case citation in the chapter to the actual case.

Create Your Power Practice with ArkBar Practice Handbooks

Our sincere thanks to the many contributors who made Handling Appeals in Arkansas, 2015 edition, an excellent resource for Arkansas attorneys: Leah Lanford R. Christopher Lawson Tory H. Lewis Judge D. P. Marshall Jr. Tabitha McNulty Rodney P. Moore Troy A. Price David R. Raupp Roger D. Rowe Robert S. Shafer John P. (Jack) Talbot Tasha Taylor Kelly S. Terry Brett D. Watson Thomas H. Wyatt Heather Goodson Zachary

2015 Handling Appeals Practice Handbook

Jess Askew III Martha Tucker Ayres James C. Baker Coleen M. Barger Brian G. Brooks Julia L. Busfield George Carder E.B. (Chip) Chiles IV Keith Chrestman Andrew H. Dallas Max Deitchler Joseph R. Falasco Grant E. Fortson Julie DeWoody Greathouse Christian Harris Judge Brandon James Harrison Kathryn Henry

• • • •

• Arkansas Bankruptcy Handbook • Arkansas Debtor/Creditor Handbook • Arkansas Domestic Relations Handbook • Arkansas Probate Handbook • Arkansas Elder Law Handbook • Business Associations Handbook • Handling Appeals in Arkansas Revocable Trust Handbook for Arkansas Practitioners Standards for Examination of Real Estate Titles in Arkansas Statute of Limitations Workers’ Compensation Desk Book

Order Online at arkbar.com/pages/practice_handbooks.aspx

Vol. 50 No. 3/Summer 2015 The Arkansas Lawyer

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Legislative Update:

A Report on the Regular and First Extraordinary Sessions of the 90th General Assembly

By Jack A. McNulty

An article reporting on the results of the 89th General Assembly appeared in the Summer 2013 issue of The Arkansas Lawyer. Since then, the members of the 90th General Assembly have been elected, the regular session commenced on January 12, 2015, and adjourned sine die on April 22, 2015, and a session called by the governor (extraordinary session) commenced on May 26 and adjourned sine die on May 28, 2015.

During the regular session, 2052 bills were introduced. Eventually, after any amendments and review by the governor, 1,289 (62.8%) of them were enacted. Additionally, 43 joint resolutions proposing amendments to the Arkansas Constitution were introduced. Three of them were referred to a vote of the people at the time of the next general election.

All bills and proposed constitutional amendments introduced were reviewed by your Association’s Legislative Committee1 and lobbyist.

Bills which might be of interest to Association members because of their law practice were reported in the Association’s electronic newsletter.

Some bills were referred to Association sections or committees for comment or for information. The Legislation Committee, as provided by the Association’s governing documents, took positions on behalf of the Association on many bills and proposed constitutional amendments.

Jack A. McNulty is the lobbyist for the Arkansas Bar Association.

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The positions taken on behalf of the Association through the Legislation Committee were almost unanimously successful. All bills supported by the Association passed. All bills and proposed constitutional amendments opposed by the Association failed or were sufficiently modified to satisfy the concerns of the Legislation Committee.

The sole limitation was that one of the proposed constitutional amendments which was supported2 was not chosen as one of the three referred to a vote of the people.

The Bar Association’s Legislative Package After review and analysis by the Jurisprudence and Law Reform Committee3 and adoption by the House of Delegates, the Association had six bills in its Legislative Package for the regular session. With the support and leadership of members of the Association who are also legislators, four of the bills were passed by the General Assembly and signed by the governor. The purposes of the other two bills were achieved administratively as described below.

Uniform Partition of Heirs Property Act—Act 107 (HB1245): The problem addressed by this legislation is the loss of real property, sometimes for less than fair market value, in partition suits involving heirs who have become tenants in common through inheritance. A tenant in common may convey his or her interest to others without consent of the other cotenants. A tenant in common may also file a lawsuit to partition real property which likely will result in sale of the land at public auction without an appraisal, whether the family members who are cotenants like it or not. As a result of these mechanics, some families, especially low-income families, have found themselves in a situation

where they are forced to give up real property which may have been in the family for years.

If the land is sold at public auction without an appraisal the result is often a below market value return. Act 107 attempts to improve the process where “heirs property” is involved. If the threshold is met for the land to be “heirs property”4 the court where the partition action is filed will determine fair market value, usually after an appraisal. After fair market value is determined, cotenants who did not request partition by sale may buy all the interests of the cotenants that requested partition by sale.

The price to be paid by a purchasing cotenant is based on the court-determined market value and the cotenant’s fractional ownership of the entire parcel divided by the total fractional ownership of all cotenants electing to buy. If a sale of the land is eventually ordered by the court, it must usually be through a real estate broker on the open market. House Bill 1248, which eventually became Act 107, was sponsored by Representative Matthew Shepherd and Representative Warwick Sabin and by Senator Jeremy Hutchinson, Senator David Burnett, Senator Joyce Elliott, Senator Stephanie Flowers and Senator David Johnson. The act applies to partition actions filed on or after January 1, 2016.

Venue—Act 830 (HB1252): The provisions governing where various causes of civil actions are to be filed have been scattered throughout the Code. Moreover, there have been conflicting, unclear and outdated venue provisions.

For example, Section 16 of Act 649 of 2003, part of the Civil Justice Reform Act of 2003, established a new default venue provision, but its relationship to other venue provisions existing at that time became uncertain. Over time the Arkansas Supreme Court has attempted to deal with the resulting confusion.5 House Bill 1252, which became Act 830, brought together the state’s principal venue statutes for civil cases in one place and organized them in an understandable manner. It also revised the statutes to reflect the apparent intent of the General Assembly in enacting the default venue statute in 2003 and repealed an outdated provision enacted in 1868 concerning venue in actions against turnpike road companies. House Bill 1252 was sponsored by Representative Mary Broadaway, Representative Bob Ballinger and Representative John Vines and by Senator Jeremy Hutchinson and Senator David Johnson. The Act became effective July 22, 2015.

2017 Legislative Package Deadline for Submission February 1, 2016 Members, sections, and committees of the Association are encouraged to participate in the development of the Association’s Legislative Package. Proposed legislation should be submitted in bill form and address issues concerning matters of jurisprudence and procedure including reforms of the substantive law and improvement in practice and in administration of the courts.

The Association’s By-Laws charge the Jurisprudence and Law Reform Committee with reviewing these proposed bills and reporting their findings to the House of Delegates. The Association’s package for the 2017 Session of the Arkansas General Assembly will be adopted at the June 2016 House of Delegates. Once the package is adopted by the House the Association’s Legislation Committee works with the Association’s Lobbyist to usher the bills through the legislative process to enactment.

The Association’s By-Laws provide: Article X. Preparation of the Legislative Package Section l. Composition of Package The Legislative package of Bills to be presented by the Association to the Legislature shall not consist of more than 10 separate bills.

Section 2. Adoption of Bills Before a bill is allowed to become a part of the package it must receive an affirmative vote of two-thirds of the members of the House of Delegates present and voting on the proposed legislation, either at a regular session of the House or a Special Session called for that purpose.

Section 3. Additional Bills If the exigency of the circumstances requires it, an affirmative vote of three fourths of the members of the House of Delegates present and voting may add not more than three additional bills to the 10-bill package.

Section 4. Position on Other Bills Legislation proposed by committees, sections or members of this Association that do not receive a two-thirds vote allowing it to be a part of the Legislative package to be sponsored by the Association but that does receive approving vote of 51% of those voting, may be reported by the Lobbyist as approved by the Association and the Legislation Committee cannot reverse that approval.

Submissions should be mailed to: Arkansas Bar Association Attn: Karen Hutchins 2224 Cottondale Lane Little Rock, AR 72202 Questions? Contact Karen Hutchins at (501) 375-4606 or khutchins@arkbar.com

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Unlawful Distribution of Sexual Images or Recordings for Revenge—Act 304 (SB156): In today’s technological world, a new problem which first emerged in other states has started to arise in Arkansas—that is distribution, especially over the internet, of sexual images or recordings of a spouse or former lover in order to seek revenge or coerce. Act 304 attempts to address the problem by making it unlawful to distribute sexual images or recordings with the purpose to harass, frighten, intimidate, threaten or abuse a family or household member of the actor or another person with whom the actor is in a current or former dating relationship. The terms used to describe the unlawful action are carefully defined in Arkansas Code § 5-26-302. Act 304 was sponsored by Senator Bart Hester and by Representative Douglas House and Representative Marshall Wright.6 It became effective July 22, 2015.7 Limited Immunity for Minors in Medical Emergency Situations—Act 381 (SB161): Under Section 3-3-203 of the Arkansas Code, it is unlawful for a person under 21 years of age to purchase or have in his or her possession any intoxicating liquor, wine, or beer. There are many instances of anecdotal evidence, in Arkansas and in other states, that when a person in unlawful possession of liquor observes a medical emergency, he or she has often fled rather than risk being arrested for unlawful possession. Act 381 provides a person in unlawful possession immunity from criminal prosecution for unlawful possession only if the person in unlawful possession (1) requested emergency medical assistance in response to a medical emergency of another person, (2) remained on the scene until the emergency medical assistance arrived and (3) cooperated with emergency medical assistance providers and law enforcement personnel during the medical emergency. Act 381 became effective July 22, 2015. It was sponsored by Senator Jeremy Hutchinson and Senator Stephanie Flowers and by Representative David Whitaker.

Access to the Arkansas Code: As new laws are enacted, they are incorporated into the Arkansas Code by the Arkansas Code Revision Commission. The work to get the acts from a session in a form to be incorporated into the Code is performed by the Legislative Research Bureau, much of it under contract with LexisNexis. A link to the Arkansas Code is published on the legislative website (www.arkleg.ar.state.us), but the provisions of the Code 18

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are viewed only on the website of LexisNexis.

In order to go from the legislative website link to the LexisNexis website to review Code provisions, one must agree to certain “Terms and Conditions” which can only be viewed through another link. The “Terms and Conditions” as they existed until the Association addressed the issue consisted of five pages of small font, some of which posed possible liability for certain uses of the information gleaned from reviewing the Code. The Association pushed for legislation which would allow unrestricted access to and use of the Arkansas Code on the legislative website.8 Through the efforts and cooperation of the Legislative Research Bureau, Senator David Johnson, Representative Matthew Shepherd, LexisNexis, the Bar Association and others, the number of pages of the Terms and Conditions was trimmed to two pages of readable font and the most onerous provisions were deleted so that attorneys and the Bar Association should be able to use the Code published through the legislative website for the practice of law and Bar Association purposes without fear of liability. Also, forms which had been enacted in legislation were blocked from view on the LexisNexis website. It appeared that this was an oversight caused by blocking annotation material from view of the website. LexisNexis corrected the problem in due course.

Exemption of Attorneys from Certain Insurance Department Requirements: Attorneys who engage in title insurance work as part of their practice are subject to the requirements of regulations promulgated by the Arkansas Insurance Department as well as the requirements imposed by the Arkansas Supreme Court. Senate Bill 172, which was introduced by Senator Jeremy Hutchinson,9 proposed to exempt licensed attorneys in good standing with the Arkansas Supreme Court from all provisions of the Arkansas Title Insurance Act, including continuing education requirements and testing requirements. The bill passed the Senate with an amendment which would separate regulation of title insurance agents from the Insurance Department.

The bill did not come up for a vote in the House of Representatives in order to give attorneys, title agents and the new insurance commissioner an opportunity to work together to attempt to resolve the issues administratively.

Whether the issues can be resolved administratively or whether legislative solutions will have to be attempted in the next regular session remains to be seen.

Proposed Constitutional Amendments The Arkansas Constitution permits each legislative regular session to refer up to three amendments to the Constitution for a vote of the people. Proposals for amendments to be considered by the legislature for referral are introduced in the Senate as Senate Joint Resolutions (SJR) and in the House of Representatives as House Joint Resolutions (HJR). During this last session, there were 16 Senate Joint Resolutions and 27 House Joint Resolutions introduced.

The final result of the debates on proposed amendments to the Arkansas Constitution was that the following three proposed constitutional amendments were referred by the legislature for a vote of the people at the time of the November 2016 general election: Proposed amendment to allow the Governor to retain his or her powers and duties when absent from the state (SJR 3): Under current constitutional provisions, if the Governor leaves the state, his powers and duties devolve to a line of succession while he or she is out of the state. If adopted at the November 2016 general election, the governor would retain his or her powers and duties when absent from the state.

Proposed amendment concerning the terms, election, and eligibility of elected officials (HJR 1027): This proposed amendment provides for four-year terms of office for certain county officials who are presently elected for two-year terms. It also provides that certain county officers shall not be appointed or elected to a civil office during their elected term. The proposed amendment allows a candidate for an office to be certified as elected without appearing on the ballot when he or she is the only candidate for the office at the election. Finally, the proposed amendment defines the term “infamous crime” for the purpose of determining the eligibility of elected officials to hold office.

Proposed amendment to encourage job creation, job expansion, and economic development (HJR 16): This proposed amendment, if adopted, will remove the limitation on the principal amount of general obligation bonds that may be issued under Amendment 82 of the Arkansas Constitution to attract large economic development projects. It authorizes a city, county, town, or other municipal corporation to obtain or appropriate money for any

corporation, association, institution, or individual to finance economic development projects and to provide economic development services. It authorizes the issuance of bonds under Amendment 62 of the Arkansas Constitution for economic development projects. It authorizes the taxes that may be pledged to retire bonds issued under Amendment 62 of the Arkansas Constitution for economic development projects. It removes the requirement of a public sale for bonds issued under Amendment 62 of the Arkansas Constitution for economic development projects. It authorizes compacts for economic development projects among cities of the first and second class, incorporated towns, school districts, and counties.

Locating New Laws of Interest As previously mentioned, 1,289 acts were enacted during the last session. Some of those acts were appropriations and some of the others did not obviously relate to the practice of law or the administration of justice. One can review the summary of each substantive bill and then the bill itself in detail on the legislative website—http://www.arkleg.state.ar.us.10 The Association’s Legislative Program and Your Involvement Your Association successfully monitored bills and advocated on behalf of its members during the regular and first extraordinary sessions of the General Assembly earlier this year. Interim committee meetings and the 140 interim study proposals currently being studied by the legislature are being monitored. If there are any additional extraordinary sessions called by the governor, your Association will be present and active.

The General Assembly is scheduled to meet in fiscal session beginning April 13, 2016.

Although it is supposed to deal with only budgetary matters, your Association will be monitoring all bills for proposed substantive changes.

The next regular session of the General Assembly will commence in January 2017.

The deadline for members, sections or Committees to submit proposed legislation to the Jurisprudence and Law Reform Committee to be considered for being included in the Association’s Legislative Package for the 2017 session will be at the end of January 2016—less than six months from now. This submission is an important threshold in the Association’s legislative program to facilitate members being able to have an impact on making or changing public policy involving the administration of justice or the practice of law.

As has been observed in previous articles on this subject, establishing the Association’s Legislative Package and representing the interests of the profession at the legislature are important functions your Bar Association performs for its members. There are many ways available for a member to be involved in influencing public policy through the Association: suggest legislation, participate on the Jurisprudence and Law Reform Committee, participate in the House of Delegates, participate on a Section’s Legislative Review Subcommittee, participate on the Legislation Committee or make a financial contribution to the Political Action Committee (PAC). Do you want a more direct path to influence public policy? Think about running for the legislature yourself, encouraging others to run or supporting someone else who is willing to serve.

Endnotes: 1. Members of the 2014-2015 Legislation Committee were Teresa Wineland (Chair), Justin Allen, Sterling Taylor Chaney, Tom Curry, Bob Estes, Denise Hoggard, Cliff McKinney, Kristin Pawlik, Brian Ratcliff, Aaron Squyres and Eddie Walker.

2. The Legislation Committee unanimously voted to support House Joint Resolution 1005 which was introduced by Representative Matthew Shepherd. The proposed constitutional amendment provided for the appointment of Supreme Court Judges from among three nominees submitted to the governor by a Judicial Nominating Commission of 15 members. Under the proposed constitutional amendment, six of the Commission’s members, including at least one from each congressional district, would be members of the Arkansas Bar Association who have been elected by the other active members of the Association.

3. The Jurisprudence and Law Reform Committee consisted of Tom Curry (Chair), Brian Wade Albright, Charles Tad Bohannon, Jason J. Campbell, Suzanne G. Clark, Karen Talbot Gean, Paul W. Keith, Robert B. Leflar, Joshua D. McFadden, Cliff McKinney, Brandon Moffitt, Brian H. Ratcliff, James V. Scurlock, Robert M. Sexton, Logan S. Stafford, and Elisa White.

4. “Heirs property” is defined in Ark. Code Ann. § 10-60-1002(5) as real property held in tenancy in common in which, as of the date of the filing of a partition action, either 20 percent or more of the interests in the land are held by cotenants who are relatives or 20

percent or more of the interests are held by an individual who acquired title from a relative, whether living or deceased, or 20 percent or more of the cotenants are relatives. Also, to fit the definition of “heirs property,” the land must not be the subject of an agreement in a record binding all the cotenants which governs the partition of the property and one or more of the cotenants must have acquired title from a relative, whether living or deceased.

5. See, e.g. Hurt-Hoover Investments, LLC v.

Fulmer, 2014 Ark. 461, 448 S.W.3d 696; Dotson v. City of Lowell, 375 Ark. 89, 289 S.W.3d 55 (2008) and Wright v. Centerpoint Energy Resources Corp., 372 Ark. 330, 276 S.W.3d 253 (2008).

6. The bill was drafted by Professor John Watkins who also provided advice, analysis and testimony.

7. Acts that do not contain an emergency clause or a specified effective date become effective on the 91st day following the date that the General Assembly adjourns sine die the session at which they were enacted.

According to the method of calculation stated in Ark. Atty. Gen. Op. 2015-044 (April 29, 2015), the effective date for acts of the 90th General Assembly that do not contain an emergency clause or a specified effective date was July 22, 2015.

8. Senate Bill 838 was introduced by Senator David Johnson and House Bill 1720 was introduced by Representative Matthew Shepherd as “shell bills.” They did not move forward because the problem was resolved through the described administrative solution.

9. Senator Stephanie Flowers, Representative Marshall Wright and Representative Camille Bennett were also sponsors of Senate Bill 172.

10. On the Internet, go to the home page of the legislative website - http://www.arkleg.state.ar.us. Then, in the right margin, under the heading “Documents - 2015 Regular Session” select “Summary of General Legislation” which is the third subcategory under “Documents – 2015 Regular Session.”

That will display the Summary. If you wish to review individual acts, on the homepage of the legislative website (http://www.arkleg.state. ar.us), in the left margin select “Search Acts.”

Note: Much of the material in this article is taken from the Summary of General Legislation prepared by the Bureau of Legislative Research. 

Vol. 50 No. 3/Summer 2015 The Arkansas Lawyer

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Language Matters

By Mara Simmons

A young man named José is arrested and taken to the police station for questioning. José speaks no English, and the police department finds a bilingual individual through a telephonic interpreting agency to assist in communication. The following is an English translation of the actual transcription of the unqualified bilingual person’s “interpretation” of the Miranda warning: “Do you know that you have the right to talk the question with your attorney that you answer the questions? This is the second continuation of the third question that he gave you before.

You know that you have the right if you can’t get an attorney they can give you one to talk for you. You have the right to make the answers if you want at any time if that is the right that you have.”

When non-certified or unqualified interpreters are used in the judiciary process, such as in the above example, everyone involved in the criminal procedure is affected, confessions become inadmissible, and court hearings are delayed, wasting the state’s resources. Unfortunately this has been and continues to be problematic. The importance of an interpreter is not to merely speak the target language, but to convey the meaning properly, without omitting or changing any details.

Mara Simmons is the Court Interpreter Services Director for the Administrative Office of the Courts.

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The Issue In the two decades between 1990 and 2010 Arkansas saw a record increase in numbers of Limited English Proficiency (LEP) individuals. In a mere 10 years, from 2000 to 2010, the Hispanic population in Washington County grew 143%, and in Benton County 155%. Still more remarkable was the staggering 309% increase of Hispanic individuals in Independence County. In fact, all counties in Arkansas experienced double-digit increases in their Spanish-speaking population. Other LEP communities also began moving or continued to move into Arkansas. Aside from Spanish speakers, the largest LEP growth consisted of Vietnamese, Lao and Marshallese speakers in Crawford, Sebastian, and Washington counties.1 Currently, the largest Marshallese population outside of the Marshall Islands is found in Springdale, Arkansas.

As more and more individuals throughout the state could not understand or converse in English, the need for bilingual professionals grew exponentially. During the early years of the population growth, courts scrambled to find bilingual people to interpret for LEP defendants and witnesses. It was not unusual for courts to rely on people from the local Mexican or Chinese restaurant or a high school language teacher. Today this sounds ludicrous, but for many reasons the courts had no way to be certain that their messages were even comprehensible to the LEP individual. Although bilingual individuals were and still are a vital asset for businesses, the medical field, schools, and many other areas of life, they are not trained interpreters and thus constitute a proverbial ticking time bomb in a court of law. Many people find it hard to believe that a person who claims to be fluent in two languages cannot interpret; in reality the fact that a person is bilingual does not in any way qualify him or her to interpret or translate and certainly not in a courtroom.

During an interpreter outreach program in Miami, Florida, one of the most bilingual cities in the United States, proctors administering Spanish interpreting tests found that the majority of the Spanish speakers who tested spoke “kitchen Spanish,” a term coined to describe a person who has learned Spanish while sitting around the kitchen table with the family but who has little to no formal education in the language. In fact, most of the candidates were barely literate in their native language and had very limited vocabulary. Unfortunately, “kitchen Spanish” is very common, and the individuals who speak it identify themselves as bilingual because

of their heritage; however, their linguistic abilities are so poor that many substitute English words when speaking their native language because they cannot remember or never learned the correct words while sitting around the kitchen table. As a result, they cannot interpret for LEP individuals because the LEP individual would either only receive the words that the “kitchen-table” speaker knows or a mix of words in their native language and English. It is alarming to think of a kitchen-table speaker interpreting

An accused’s right to presence at the trial is of little value if he or she cannot understand the proceedings. If a person with limited or nonexistent skills in the English language is to have a fair trial, or a fair re-sentencing procedure, great care must be taken in the direct translation process.5 Even today, few attorneys are as aware as Justice Newbern was of what is expected of court interpreters or the many possible legal

“Many people find it hard to believe that a person who claims to be fluent in two languages cannot interpret; in reality the fact that a person is bilingual does not in any way qualify him or her to interpret or translate and certainly not in a courtroom.” court proceedings. Unfortunately, though, for many years, judges and attorneys have had to depend on such speakers because they either did not know that certified interpreters were available, or because they did not realize there was a difference between a certified interpreter and a bilingual individual.

Some, however, were able to make this distinction between a professional interpreter and a mere bilingual person. In 1997, the case of Rafael Camargo v. State of Arkansas,2 came up for appeal to the Arkansas Supreme Court. This was a capital murder case and was appealed on several grounds. Despite the fact that Mr. Camargo did not speak or understand English and a non-qualified interpreter was used to interpret the proceedings, the appeal was not based on the lack of a qualified interpreter. The court upheld the conviction but vacated the death sentence Camargo received and ordered a new sentencing. The language barrier was not a factor in the decision but concern was noted in the opinion that Camargo “be provided opportunity to understand the proceedings by means of assistance of persons having competent skills in interpreting language.”3 Justice David Newbern wrote a separate opinion in which he addressed his concern based on a transcript of the proceedings, about “whether Mr. Camargo’s testimony was accurately stimulated by the questions asked of him and accurately recorded through the interpreter.”4

pitfalls that arise when a bilingual person who is not a court-qualified interpreter is used to interpret. His concerns are as valid and applicable today in appeals based on similar interpretation issues as they were when he wrote his opinion.

The untrained bilingual individual is not qualified to interpret in court or any legal proceeding. He or she not only makes performance-based mistakes, but, as mentioned before, usually possesses subpar language skills. This has led to “services” as well as regular ethical violations that are counterproductive and a hindrance to due process, and which had previously remained unchecked due to a lack of language proficiency testing.

Take for example the Miranda rights, the cornerstone of due process. When the Miranda rights are not properly conveyed, the entire criminal procedure is in jeopardy.

When non-certified or qualified interpreters have been used to interpret Miranda rights, and transcripts reveal the lack of comprehensible language in the interpretation, almost everyone involved in the criminal procedure is affected, confessions become inadmissible and court hearings are delayed, wasting the state’s resources. Unfortunately this has been and continues to be an issue. The following excerpt that was quoted in the introduction is from a transcript translated from Spanish into English by the AOC. It transcribes an actual “interpretation” of the Miranda rights to an LEP person by a bilingual individual who is

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not a qualified interpreter.

Do you know that you have the right to talk the question with your attorney that you answer the questions? This is the second continuation of the third question that he gave you before. You know that you have the right if you can’t get an attorney they can give you one to talk for you. You have the right to make the answers if you want at any time if that is the right that you have.

Little meaning can be derived from the above passage and interpretation mistakes such as these are not uncommon. The importance of an interpreter is not to speak the target language, but to convey the meaning properly, without omitting or changing any details. In fact, Ark. Code Ann. § 16-81-117, Interpreters for deaf persons who are arrested, states: “(b) If a qualified interpreter is not present when a deaf person makes a statement while in custody for an arrest, the statement is not admissible in court.”

The Solution Ahead of its time, in 1981 the Arkansas General Assembly passed Act 477 which 22

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states that in proceedings involving deaf individuals all courts shall use the services of a certified interpreter. To further implement Act 477, the 73rd General Assembly passed Act 721 which established within the Judicial Department the position of Interpreter for the Deaf. Arkansas was the first state in the nation to have such a position and high standards were set from the beginning. A Specialist Certificate: Legal was made mandatory. Shirley Herald, living in Florida at the time, was one of only 59 interpreters across the country with such prestigious certification.

Ms. Herald was selected and hired on August 21, 1981, to fill the position with the Arkansas Supreme Court, a position which she held until her death in 2006.

Camargo prompted the Arkansas Supreme Court to act and on September 30, 1999, the Arkansas Supreme Court delivered a Per Curiam order.

All persons, whether or not able to understand or communicate adequately in the English language, must be afforded rights when they appear in court. See Ark. Code Ann. §16-64111, §16-89-104, §16-10-102 and

§25-15-101. It is the intent of this Per Curiam Order to provide for the certification, appointment and use of interpreters for non-English speaking parties or witnesses in all state and local court proceedings.6 In 2013 the Arkansas legislature revamped interpreter statutes to reflect the Per Curiam order and passed Act 237.7 The same year, the legislature passed a licensing law for sign language interpreters. Ark. Code Ann. § 20-14-801 requires any sign language interpreter who works in the state of Arkansas to be licensed. People hiring or working as an unlicensed interpreter are subject to penalties.

A Multi-State Effort Minnesota, Oregon, New Jersey, and Washington were also dealing with a lack of trained individuals to act as interpreters in state courts. As a result, with help from the National Center for State Courts (NCSC), a Consortium for Foreign Language Interpreter Certification (later renamed Consortium for Language Access in the Courts) was created and Arkansas became the 19th member.

The Consortium’s main contribution was the development of oral language exams for certification. It began with Spanish, and it now offers exams in 22 languages, a resource which additional states across the country joined forces to develop. In addition to testing, the Consortium also provided guidelines to states for court interpreter ethics and training for the courts using the interpreters. The member states granted reciprocity to and were able to use one another’s interpreters.

Membership in the Consortium gave Arkansas access to resources such as the written English exam as a screening tool, and the Oral Exams for Certification which measure the ability of an individual to transfer meaning from the source language to the target language in a courtroom setting. The court interpreter must interpret without changing, adding or paraphrasing, maintaining the completeness and accuracy of the message.

The Consortium became an important resource, and in 2012 became the Language Access Division at the National Center for State Courts, today assisting all 50 states and U.S. territories with language access in the courts.

The Program The Administrative Office of the Courts (AOC) implemented a Foreign Language Interpreter Certification Program and has developed and oversees the certification pro-

gram requirements and policies for court interpreters. The AOC’s Court Interpreter Services (CIS) has become a one-stop interpreter service for state courts, assisting courts with all their interpreter needs. It maintains close communication with the courts in order to identify any need that may arise and create better ways to provide interpreter services.

The AOC’s CIS employs as full-time staff interpreters the only two federally certified Spanish interpreters in the state: Jason Daniel in Little Rock and Anne Yancey in Lowell.

Cheryl Thomas is the only sign language interpreter with Special Certificate: Legal in the state of Arkansas. These highly skilled individuals provide interpreter services to all state courts as well as develop curriculum and provide training to candidates for certification.

Individuals wanting to become interpreters are first screened for language proficiency with an English multiple-choice test. The foreign language is assessed through the Oral Proficiency Interview (OPI) developed by Language Testing International. The candidate must achieve a passing score on both tests before beginning training as an interpreter. Of the 30 to 45 persons tested in a given year, approximately 10 percent will pass both tests.

Of those three or four people, only one or two will typically pass the certification exam. Sign language interpreters must first be certified by the Registry of Interpreters for the Deaf (RID) and then comply with several additional steps.

The main goal of this certification process is to provide certified/qualified court interpreters to all state courts. If a language need is identified and a local interpreter is not available, one is found in another state and he or she is vetted to assure that the interpreter meets the high standard set by the Supreme Court for Arkansas court interpreters. Depending on the location of the interpreter, interpreter services may be provided via telephone for short, non-evidentiary hearings. For longer, more complex cases, the interpreter is flown in. Over 42 different languages were requested in 2013, such as Arabic, Chinese Mandarin, Farsi, Korean, and Hmong; some as rare as Bambara, Chuukese and Pohnpeian.

To be able to provide better service for some of these languages of lesser diffusion, or even common languages using out-ofstate interpreters, CIS is currently working with a grant from the National Center for State Courts for Video Remote Interpreting capability. The grant primarily focuses on a needs-assessment for Arkansas state courts.

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CIS maintains a registry of the certified interpreters who have met the high standards set for court interpreters in our state. The interpreters are freelance and are eligible to be contracted by law enforcement, attorneys, and other users. The registry of interpreters has grown from only three certified Spanish interpreters in 2002 to 20 in 2015, in addition to five sign language interpreters. Arkansas has the only certified Marshallese interpreter in the country, Ms. Melisa Laelan, who alone interpreted for more than 1300 Marshallese individuals in 2013. She is also contracted by and travels to other states that need Marshallese interpreting services.

The registry is available on our website: https://courts.arkansas.gov/directories/courtinterpreters-registry.

The Profession Court interpreters are professionals who chose a career in interpreting. The majority have bachelor’s degrees, many have master’s, and it is not unusual for them to hold doctoral degrees. Currently, the RID requires a four-year degree for those persons who want to become certified as sign language interpret-

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ers. The Continuing Education requirement for sign language interpreters is 80 hours in a four-year period. Those who do not fulfill the requirement lose their certification.

The professional interpreter also signs an oath to abide by Administrative Order #11, Code of Responsibility for Interpreters in the Judiciary, a strict code of ethics defining the role and responsibility of the interpreter.

Canons include accuracy, confidentiality and neutrality.

Accept No Imitations Law enforcement, judges and attorneys are unable to monitor bilingual individuals who call themselves interpreters unless they themselves speak the foreign language at the same level required for court interpreters.

Certification is an essential first step for court interpreters; after certification they continue to study the art of interpreting as if it were a science. Spanish is spoken in approximately 24 countries. The idea that people from these countries speak different “dialects” of Spanish is a fallacy put forward by individuals whose Spanish is not at a level to be able to understand a different accent or different colloquialisms. For example, someone who is

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learning English in the United States may not be able to understand a British or Australian speaker, but the differing word usage and accent do not constitute a dialect. Unqualified sign language interpreters are also common; when we see an individual move his hands, many of us assume he knows what he is doing.

We all witnessed the fiasco in South Africa of the “interpreter” signing for President Obama at Nelson Mandela’s funeral. This individual had no credentials, but most of us assumed he was doing his job correctly. The deaf community was appalled and called it to the world’s attention that this individual was signing gibberish, and because he was allowed to “interpret” deaf people were unable to understand the president’s remarks. Additionally, in a court of law it is imperative that the person speaking or signing through an interpreter be given the opportunity to be heard. Equally important is that the court be heard accurately. The Constitution of the United States provides that every person has a right to hear and be heard at his or her own trial. Without language access, due process is not carried out.

The certified interpreter’s professional obligation to accurately transfer meaning is what makes it imperative to use only qualified court interpreters in all legal settings. The interpret-

er’s responsibility is to put the LEP individual on an equal footing with an English-speaking person with the same education level, without giving an advantage or a disadvantage. If the LEP person were an English-hearing person he or she should be hearing or seeing (for sign language) the exact same thing. Think of the court interpreter as a clear, strong glass tube—as the words travel through this crystal tube they are not contaminated with anything from the outside and nothing leaks out; when the words are delivered into the target language the message is complete and accurate.

It is important to note that when using an interpreter, it is the attorney’s responsibility to explain the law and judicial process to the client, not the interpreter’s. The court interpreter does not explain the law, give advice, or offer opinions. The interpreter is a completely neutral officer of the court whose only responsibility is to transfer the message as precisely as possible. He or she follows a strict code of ethics that prohibits him or her from participating in any other way. It is not the responsibility of the court interpreter if the person does or does not comprehend the complex legal system.

Court interpreters are professionals whose skill is the specialization of transferring a

message completely and accurately from one language to another.8 The Rules of Evidence recognized that confidential communications shared in the presence of an interpreter are privileged. Admin. #11, Arkansas Code of Professional Responsibility for Interpreters in the Judiciary, Canon 3, “Interpreters shall be impartial and unbiased and shall refrain from conduct that may give an appearance of bias. ... The interpreter serves as an officer of the court ... .” Interpreters are bound by statute and professional responsibility. They provide an important part of the legal process and allow the judiciary to function without unnecessary and costly delays.

CIS is committed to its mission to provide Arkansas courts with qualified interpreters.

Endnotes: 1. 2010 U.S. Census.

2. Camargo v. State, 327 Ark. 631 (1997).

3. Id. at 647.

4. Id. at 646.

5. Id. 6. In Re.: Certification for Foreign Language Interpreters in Arkansas Courts, 338 Ark. Appx.

827 (1999).

7. Ark. Code Ann. § 16-10-1101.

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HOT SPRINGS CONVENTION CENTER

The Annual

The Arkansas Bar Association held its 117th Annual Meeting and Joint Meeting with the Arkansas Judicial Council at the Hot Springs Convention Center June 10 13, 2015. More than 1,100 attorneys, judges and guests attended the four-day meeting that was complete with CLE seminars, receptions and award ceremonies.

See the complete photo gallery online at ace.arkbar.com/AnnualMeeting/ photogallery

ArkBar

2015 JUNE 10-13th

2014-2015 Association President Brian Ratcliff and his wife Karen.

Golden Ticket winner Kenneth Burleson and Annual Meeting Chair Paul Keith

Judge James Cox, David Harp and 20152016 Association President Eddie Walker, Jr.

Bob Edwards, Robin Smith, Matthew Hass

Guy Wade, J. Shepherd Russell III, Ryan Bowman

Bob Sexton, Denise Hoggard, Mike Rainwater

Anthony A. Hilliard, Brian Ratcliff, Jessica Yarbrough

Circuit Judges John Scott, Kenneth Johnson, Hamilton Singleton, Barbara Halsey

Justice Paul Danielson led the lawyers attending the swearing-in ceremony with a renewal of their Oath of Admission.

The Oath was revised in 2012 to include a pledge of civility.

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2015 Annual Sponsors

Arkansas Judicial Council President Judge Gary M. Arnold, Brian and Karen Ratcliff, Charles and Ann Roscopf

50-year members Judge Billy Roy Wilson, Alex G. Street, Sidney H. McCollum, Judge Robert T. Dawson, Kenneth B. Baim, Judge John C. Ward, Ralph C. Williams

New members of the Board of Governors, House of Delegates and Committee Chairs attended a Leadership Orientation

Association Past Presidents and their spouses posed for a group photo before the Past Presidents’ Dinner

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Vol. 50 No. 3/Summer 2015 The Arkansas Lawyer

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The Annual

ArkBar

2014 - 2015 Arkansas Bar Association Award Recipients 2014 - 2015 Association President Brian H. Ratcliff selected the following members as award recipients for their outstanding work and service to the Association.

Clary

Curry

Harris

Hodge

Hoggard

Janik

Keith

McDonald

McKinney

Moore

Noland

Schnuerle

Squyres

Stroud

Wineland

Brian M. Clary, Saline County Deputy Prosecuting Attorney: Frank Elcan II Award

Kathleen McDonald, Beacon Legal Group, Little Rock: Golden Gavel Award

Tom Curry, McMillian, McCorkle, Curry & Bennington, LLP, Arkadelphia: Golden Gavel Award

J. Cliff McKinney, Quattlebaum, Grooms & Tull PLLC, Little Rock: Golden Gavel Award

Melissa Grisham and John Rainwater received the Young Lawyers Section Awards of Excellence.

Outstanding Local Bar Associations: •Pulaski County Bar Association •Sebastian County Bar Association

Friday, Eldredge & Clark LLP law firm in Little Rock: Presidential Award of Excellence

Brooke Moore, Arkansas Virtual Lawyer, Little Rock: Judith Ryan Gray Outstanding Young Lawyer Award

Sandra Young Harris, Pine Bluff: Lawyer Community Legacy Award

Ross Noland, McMath Woods, P.A., Little Rock: CLE Award of Excellence

Benjamin R. McCorkle received the award in the best legal writing category.

Mark Hodge, Chisenhall, Nestrud & Julian, P.A., Little Rock: Golden Gavel Award

Angela Galvis Schnuerle, Immigration Law Center, LLP, Little Rock: Lawyer Community Legacy Award

Melaine J. Strigel and Tom Overbey received the award in the best general writing category.

Denise R. Hoggard, Rainwater, Holt & Sexton, Little Rock: Golden Gavel Award Anton L. Janik, Jr., Mitchell Williams, Little Rock: Maurice Cathey Award Paul W. Keith, Gibson & Keith, PLLC, Monticello: Golden Gavel Award

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Aaron L. Squyres, Wilson & Associates, PLLC, Little Rock: Golden Gavel Award Judge John F. Stroud, Jr., Texarkana: Presidential Award of Excellence Teresa M. Wineland, Kutak Rock, LLP, Little Rock: Golden Gavel Award

Arkansas Bar Foundation Writing Awards:

The Annual

ArkBar

Arkansas Bar Foundation and Arkansas Bar Association 2014 - 2015 Annual Joint Award Recipients

Outstanding Lawyer Award

John W. Walker Attorney at Law, Little Rock, in recognition of excellence in the practice of law and outstanding contributions to the profession.

C.E. Ransick Award of Excellence

Equal Justice Distinguished Service Award

Jordan Tinsley of Tinsley, Tinsley & Youngdahl, PLLC, Little Rock, in recognition of outstanding participation in and for excellent performance of civic responsibilities and for demonstrating high standards of professional competence and conduct.

Dustin A. Duke of Center for Arkansas Legal Services, Little Rock, in recognition of his commitment to and participation in equal justice programs, including pro bono efforts through legal services programs.

Barry E. Coplin of Coplin & Hardy, PLLC, Little Rock in recognition of sustained excellence through integrity, character and leadership to the profession and the community.

50-YEAR MEMBERS The following 50-year members were honored with a luncheon and reception at the Annual Meeting.

Jerry L. Canfield of Daily & Woods, P.L.L.C., Fort Smith, in recognition of outstanding contributions to the profession.

Outstanding LawyerCitizen Award

James H. McKenzie Professionalism Award

CONGRATULATIONS

Outstanding Jurist Award

Judge John R. Scott Circuit Judge, 19th West Judicial District, Bentonville, in recognition of his exceptional competency, efficiency and integrity on the Bench and exemplary service to the administration of justice.

Friday Eldredge & Clark LLP received the Presidential Award for hosting the Thursday afternoon reception at the Annual Meeting for over 50 years.

SAVE THE DATE JUNE 15-18, 2016

Vol. 50 No. 3/Summer 2015 The Arkansas Lawyer

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The Article 9 Individual Debtor Name Rules in Arkansas

By Richard E. Ulmer

Richard E. Ulmer is an Arkansas attorney and bank consultant who resides in El Dorado, Arkansas.

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The Article 9 debtor name rules have undergone two significant changes over the past 14 years. This article explores the evolution, during that time frame, of the rules pertaining to debtors who are individuals. The 1998 amendments to Article 9, enacted effective July 1, 2001,1 required that the “individual name”2 of the debtor be used with no explanation of the meaning of “individual name.”3 The standard UCC forms and instructions instructed filers to use the debtor’s “exact full legal name,” with no guidance as to what constitutes that name.4 It seems that determining the debtor’s exact full legal name proved problematic, although oftentimes the fault resulted from typographical errors or using nicknames.5 A few states amended their Article 9 to allow the use of the name on the debtor’s driver’s license.

Around the same time, IACA (The International Association of Commercial Administrators) was contemplating changing some of the UCC forms. Given these developments, the governing bodies of the UCC (the American Law Institute and the Uniform Law Commission) appointed a joint review committee (“JRC”) to see what changes might be helpful. The JRC could not reach a consensus and, as a result, came up with “Alternative A” (adopted by Arkansas and the vast majority of other states) and “Alternative B.” Alternative A provides that, if the debtor has an unexpired driver’s license from the governing state, the name on such driver’s license is the name to be used in the UCCs. Under Alternative A, if the debtor does not hold an unexpired driver’s license from the governing state, the secured party can use either the individual name (i.e. the exact full legal name) of the debtor or the surname and first personal name of the debtor. Alternative B provides that the name to be used in the UCCs could be one of three options: (1) the individual name of the debtor; (2) the sur-

name and first personal name of the debtor; or (3) if the debtor has an unexpired driver’s license from the governing state, the name on such driver’s license.6 The 2010 amendments became effective in Arkansas on July 1, 2013,7 and Arkansas adopted Alternative A.8 The term “individual”9 comprises: (1) living human beings; (2) sole proprietorship dbas; and (3) decedents whose collateral is being administered by a personal representative of the decedent.10 The governing law for all three of these categories, as to most collateral,11 is the state where such individual has his or her principal residence12 (or in the case of a decedent, “had” his or her principal residence).13 Assuming that Arkansas law applies (which it generally will if the debtor’s principal residence is in Arkansas),14 the secured party needs to examine the driver’s license of the debtor, to determine the exact name on the license, to make sure that it was issued by Arkansas, and that it has not expired. The secured party should put the exact name from the unexpired Arkansas driver’s license in item 1b of the UCC1.15 What if the name on the Arkansas driver’s license contains an error? For example, suppose the name on the unexpired Arkansas driver’s license is “John Quincey Adams” rather than the correct name “John Quincy Adams”? Even though the name on the driver’s license is incorrect, the secured party should put the incorrect name of the debtor in item 1b of the UCC1.16 This is a prime example of a situation where the author would also put, in an additional debtor box (e.g. item 2b of the UCC1), the correct name of the debtor, because the debtor at some point in time (and likely unbeknownst to the secured party) may obtain a corrected driver’s license.

Obtaining a corrected driver’s license would trigger the name change rules, which require the secured party, within four months of such name change, to file an amendment reflecting the amended name of the debtor.17 Filing on the front end on both the incorrect name and the correct name allows the secured party to remain perfected without the need to amend its initial filing if the debtor corrects his name with the DMV. Regardless of the fact pattern, filing not only on the driver’s license name but all potential name variations in the initial UCC filing is a prudent practice.18 For example, suppose the debtor’s driver’s license name is “John Quincy Adams.” The author would put “John Quincy

Adams” in item 1b of the UCC1, “John Adams” in item 2b of the UCC1, and “John Q. Adams” in item 10b of the UCC1Ad. The cost for filing on multiple names is nominal, as the number of names required to be indexed does not affect the amount of the fee, making filing on every potential name cheap insurance.19 The UCC1AP is also available if the secured party needs additional debtor name boxes.

By filing initially on all potential names, if Mr. Adams lets his driver’s license expire20 or renews his driver’s license with a slightly different name21 (both of which events trigger the name change rules), the secured party should be covered, without the need to file an amendment.

What if Arkansas law governs and Arkansas has issued more than one driver’s license to the debtor? The name on the most recently issued license is the name that should be used.22 Again, filing on every potential name seems prudent.

What if, for example, Arkansas law governs, but the only driver’s license that debtor has is a Louisiana driver’s license? Since the debtor does not have an unexpired driver’s license issued by the state of Arkansas, the secured party has the option of using either the individual name of the debtor or the surname and first personal name of the debtor.23 Thus, if the Arkansas debtor with the Louisiana driver’s license is John Quincy Adams, the secured party would have the option of filing on either “John Quincy Adams” or “John Adams.”

What if Arkansas law governs but the Arkansas driver’s license has been suspended by the state of Arkansas? Since the debtor’s driver’s license has not expired, the author believes that the name on the suspended driver’s license is the name to use; however, it would seem prudent to also file on every potential name variant.

What if the debtor (John Quincy Adams) legally changes his name to “Winston Churchill” via court order while he holds an unexpired Arkansas driver’s license, but does not change the name on his driver’s license?

Even after the court order, the name on the driver’s license is the name to use on the UCC1.24 What if the debtor, Janet Shirley Jones, gets married to John Robert Smith, takes the last name of her spouse but does not obtain a new driver’s license? Suppose the secured party has filed on “Janet S. Jones,”

the name on her unexpired Arkansas driver’s license. The secured party’s filing remains sufficient, because the secured party has filed on the name listed on her unexpired driver’s license.25 If Ms. Smith decides to get a new driver’s license listing her name as “Janet S. Smith,” the secured party has four months to amend its UCC1 to reflect her new name as “Janet S. Smith” or else lose any collateral acquired more than four months after the name change.26 A good starting point is to always ask the following question, “Does the debtor hold an unexpired driver’s license from the governing state?” If so, the driver’s license name is the name to be used.27 If not, the secured party has the option of using either the individual name of the debtor or the surname and first personal name.28 Sole Proprietorship DBAs With sole proprietorship dbas, secured parties sometimes make one or both of the following mistakes: putting the name of the sole proprietorship dba as an “organization” (i.e. in item 1a of the UCC1) and/or adding the dba verbiage to the name. Either one of these mistakes will result in an insufficient name.29 Estates The debtor name to be provided on the UCC1 when the collateral is being administered by a decedent’s personal representative is the name of the decedent30 as listed in the order appointing the personal representative.31 If the order contains more than one name for the decedent (i.e. name variations), the author recommends listing the name as first used in the order in item 1b of the UCC1 and then listing any variations of that name in additional debtor boxes.32 It is important to note that, even if the name is perfect in item 1b, failure to check the second box in item 5 will result in a name that is insufficient.33 Please note that it is the decedent’s principal residence that controls (and not the principal residence of the personal representative) and that death does not change the debtor’s “location.”34 For example, if the debtor has a principal residence in Arkansas, dies, and is buried in Florida, Arkansas law continues to govern regardless of where the debtor may be buried.35 The Transition Rules In making the transition from the old rule

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(exact full legal name) to the current rule (driver’s license name), it is important to note that a name that is sufficient pre 7-1-13 will be good until its normal expiration date even if that name is insufficient under the post 7-1-13 rules.36 Rather than amending all of its pre 7-1-13 filings that don’t conform with the post 7-1-13 rules all at once, the secured party can wait until the time for continuation (during the applicable window period) and amend and continue at that time.37 Some states will not allow a secured party to accomplish both functions on the same UCC3.38 Also, the UCC3 gives a secured party the option of changing the name or adding a name.39 In those states that will not allow a secured party to both amend and continue on the same UCC3, the secured party should file in the following sequence: the UCC3 as to the name amendment followed by the UCC3 as to the continuation.

What Is A Sufficient Name?

The test for sufficiency of the debtor’s name is found at Ark. Code Ann. § 4-9-506(c) (Repl. 2001), which provides that: If a search of the records of the filing office under the debtor’s correct name, using the filing office’s standard search logic, if any, would disclose a financing statement that fails sufficiently to provide the name of the debtor in accordance with § 4-9-503(a), the name provided does not make the financing statement seriously misleading.

Stated another way, if a search, using the filing office’s standard search logic, of the correct name discloses the imperfect name, the imperfect name is legally sufficient. Since the sufficiency of a name depends on the standard search logic of the filing office, where does one go to determine the search logic of the Arkansas Secretary of State? The Uniform Commercial Code Filing Office Rules of the Arkansas Secretary of State, dated June 12, 2014 (hereinafter “filing office rules”) are promulgated under Ark. Code Ann. § 4-9-526 (Repl. 2001) and, thus, are a part of Article 9. The filing office rules set out the standard search logic in Rule 13.05.1. The search logic rules for individuals are considerably more forgiving than those for organizations.40 The search logic rules for individuals are found at Filing Office Rule 13.05.1(h) as follows: 32

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For first personal names and additional name(s)/initial(s), of individual debtor names, initials are treated as the logical equivalent of all names that begin with such initials, and first personal name and no additional name(s)/initial(s) is equated with all additional name(s)/ initial(s). For example, a search request for ‘John A. Smith’ would cause the search to retrieve all filings against all individual debtors with ‘John’ or the initial ‘J’ as the first personal name, ‘Smith’ as the surname, and with the initial ‘A’ or any name beginning with ‘A’ in the additional name(s)/initial(s) field. If the search request were for ‘John Smith’ (first personal and surnames with no designation in the additional name(s)/initial(s) name field), the search would retrieve all filings against individual debtors with ‘John’ or the initial J as the first personal name, ‘Smith’ as the surname and with any name or initial or no name or initial in the additional name(s)/ initial(s) field.

Mortgage Filed As Fixture Filing; As-Extracted Collateral Filing; Timber To Be Cut Filing A mortgage can also operate as a fixture filing, as-extracted collateral filing, and timber to be cut filing.41 Unlike what one would expect the rule to be, the 7-1-13 rules require that, when using a mortgage as a fixture filing, as-extracted collateral filing, or timber to be cut filing, the secured party has the option of using either the individual name of the debtor or the surname and first personal name.42 The rationale for this unexpected rule is that it is likely that such filings will be made by real property attorneys who might not be aware of Alternative A’s driver’s license requirement.43 Suppose record title to the real property is in “John Q. Adams,” and the mortgage (as it should) is in that same name. It appears that such mortgage cannot be used as a fixture filing, as-extracted collateral filing, or timber to be cut filing, since it is neither in the individual name or surname and first personal name.

Perhaps the mortgage could indicate that the mortgagor is, for example, “also known as” John Quincy Adams (or aka John Adams) and still meet the name requirements; however, in a situation like this, the author would recommend also making a UCC1 land records filing if the fixtures, as-extracted collateral, or timber

to be cut add significant value.

Searching During The Transition Period Can a secured party safely limit its search only to exact matches of the individual debtor’s driver’s license during the transition period (i.e. through 6-30-18)? Although the search logic rules provide considerable protection, it would be risky to rely on just exact matches, even in Alternative A states, because filed UCCs may provide a name variation for the debtor but still be effective, since a name that is sufficient pre 7-1-13 will remain good until its normal expiration date.44 Using the above example of a debtor whose driver’s license name is John Q. Adams, the safest practice, at least until the transition period ends, would be to search on John Q. Adams, John Quincy Adams, and John Adams.

Conclusion While the Joint Review Committee was forced to react, the new rules add considerable complexity and non-uniformity (with the two alternatives). Hopefully this article and the authorities cited herein will be helpful in determining the correct name of the individual debtor.

Endnotes: 1. See Ark. Code Ann. § 4-9-701 (Repl.

2001).

2. See Ark. Code Ann. § 4-9-503(a)(4)(A) (Repl. 2001).

3. See Richard H. Nowka, Twenty Questions About an Individual Debtor’s Name Under Amended Article 9 Section 9-503(a)(4) Alternative A, 3 Wm. & Mary Bus. L. Rev. 139, 142 (2012); Austin Morris, The 2010 Amendments To U.C.C. § 9-503: Sufficiency Of An Individual Debtor’s Name, 4 Elon L. Rev. 115, 121, 131-32 (2012); Harry C. Sigman, Improvements (?) to the UCC Article 9 Filing System, 46 Gonz. L. Rev. 457, 458 (2011) at.

4. See Morris, supra note 3 at 121.

5. See Sigman, supra note 3 at 459; Morris, supra note 3 at 123, 128-30; Nowka, supra note 3 148.

6. See Nowka, supra note 3 at 139, 143-44; Morris, supra note 3 at 115-16, 135-37; Sigman, supra note 3 at 457-460.

7. See Ark. Code Ann. § 4-9-801 (Supp.

2013).

8. See Ark. Code Ann. § 4-9-503(a)(4) and (a)(5) (Supp. 2013).

9. The term “individual” is not defined in

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PRESERVE Vol. 50 No. 3/Summer 2015 The Arkansas Lawyer 33

THE JURY TRIAL

Article 9.

10. See IACA UCC1 Form (Rev. 4-20-11) item 1b instructions.

11. See U.C.C. § 9-301 cmt. 5 for the eight exceptions to the general rule.

12. See Ark. Code Ann. § 4-9-301(1) (Supp. 2013) and Ark. Code Ann. § 4-9307(b)(1) (Supp. 2013).

13. See Ark. Code Ann. § 4-9-307(d) (Supp. 2013).

14. See supra note 12.

15. See Ark. Code Ann. § 4-9-503(a)(4) (Supp. 2013).

16. Id.; see Nowka, supra note 3 at 160; Morris, supra note 3 at 136; and Sigman, supra note 3 at 461.

17. See Ark. Code Ann. § 4-9-507(c) (Supp. 2013).

18. Filing on multiple names is permitted under Ark. Code Ann. § 4-9-503(e) (Supp. 2013). The UCC1Ad and UCC1AP are available if the secured party needs to file on more than two debtor names.

19. See Ark. Code Ann. § 4-9-525(c) (Supp. 2013).

20. See Nowka, supra note 3 at 166-67.

21. Id. at 167-68.

22. See Ark. Code Ann. § 4-9-503(g) (Supp. 2013).

23. See Ark. Code Ann. § 4-9-503(a)(5) (Supp. 2013); Nowka, supra note 3 at 159.

24. See Ark. Code Ann. § 4-9-503(a)(4) (Supp. 2013); Nowka, supra note 3 at 16869.

25. See Ark. Code Ann. § 4-9-503(a) (Supp. 2013); Nowka, supra note 3 at 17071.

26. See Nowka, supra note 3 at 170-71.

27. See Ark. Code Ann. § 4-9-503(a)(4) (Supp. 2013).

28. See Ark. Code Ann. § 4-9-503(a)(5) (Supp. 2013).

29. See Ark. Code Ann. § 4-9-503(a)(4) (Supp. 2013); IACA UCC1 Form (Rev. 4-20-11) item 1b instructions.

30. See Ark. Code Ann. § 4-9-503(a)(2) (Supp. 2013); Rule 11.05 of the Ark. Sec. of State Filing Office Rules, June 12, 2014.

31. See Ark. Code Ann. § 4-9-503(f) (Supp. 2013).

32. See U.C.C § 9-503 cmt. 2c.

33. See Ark. Code Ann. § 4-9-503(a)(2) (Supp. 2013); U.C.C. § 9-503 cmt. 2c.

34. See Ark. Code Ann. § 4-9-307(d) (Supp. 2013).

35. See Ark. Code Ann. § 4-9-301(1) (Supp. 2013) and Ark. Code Ann. § 4-9307(d) (Supp. 2013).

36. See Ark. Code Ann. § 4-9-805(b)(1) (Supp. 2013). If the financing statement is filed in another jurisdiction, that filing is effective until the earlier of its normal expiration date under the law of that jurisdiction or June 30, 2018, per Ark. Code Ann. § 4-9-805(b)(2) (Supp. 2013); See Nowka, supra note 3 at 178.

37. See Nowka, supra note 3 at 179.

38. For example, the Ark. Sec. of State UCC website under “Hot Filing Tips” says to “Mark only one (1) action per UCC-3 form submitted with the proper filing fee.”

39. See IACA UCC3 Form (rev. 4-20-11) item 5 and instructions.

40. See Rule 13.05.1 of the Ark. Sec. of State Filing Office Rules.

41. See Ark. Code Ann. § 4-9-502(c) (Supp. 2013).

42. See Ark. Code Ann. § 4-9-502(c)(3) (B) (Supp. 2013); Sigman, supra note 3 at 463.

43. See Sigman, supra note 3 at 463.

44. See note 36 supra; Corporation Service Company, “The 2010 Amendments To UCC Article 9 FAQs,” updated July 1, 2013, prepared by Paul Hodnefield, Associate General Counsel. 

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Legal Responses to Human Trafficking in Arkansas

By Annie B. Smith

Human trafficking occurs when someone is exploited for profit and not free to leave.

Human trafficking exists throughout the United States, and Arkansas is no exception. While it can take many forms, human trafficking occurs when someone is exploited for profit and not free to leave.

Annie B. Smith is an Assistant Professor of Law at the University of Arkansas School of Law and is the Director of the Civil Litigation & Advocacy Clinic.

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Human Trafficking in Arkansas Reports of human trafficking peppered newspaper headlines this spring. In March, a former Razorbacks player was arrested and charged with human trafficking.1 He and another man were accused of providing a minor for commercial sex acts.2 A week later, a Fayetteville man was sentenced to 25 years in federal prison for the sex trafficking of a child.3 In late April, a woman was arrested at a Little Rock motel for human trafficking in another case involving minors.4 Our court dockets also contain troubling tales of human trafficking. A group of guestworkers who lawfully entered the United States on temporary work visas were brought to Arkansas to plant pine saplings.5 The workplace abuses they experienced eventually escalated to human trafficking.6 In a lawsuit brought by the guestworkers against their former employer, the court held that “threatening [guest]workers with serious immigration consequences in order to prevent them from leaving employment� can constitute human trafficking.7

As these examples illustrate, there are two forms of human trafficking: sex and labor.

Both are prohibited by international, federal, and state law. Sex trafficking tends to be better publicized and more frequently prosecuted. However, labor trafficking is also a recognized form of what some refer to as modern day slavery. A recent study reported that labor trafficking occurs most commonly in agriculture, domestic service, construction, and hospitality.8 Estimates of the number of trafficked individuals are notoriously unreliable.9 However, in 2014, the National Human Trafficking Resource Center (NHTRC) received 102 calls regarding suspected human trafficking in Arkansas.10 Of those, 17 potential instances of human trafficking were identified; 14 involved sex trafficking and three involved labor trafficking. Many more instances of human trafficking go unnoticed and unreported. Trafficked individuals rarely identify their situations as human trafficking and, in some instances, may even deny that they are being victimized.

The human trafficking reported to NHTRC was concentrated in Fort Smith, Little Rock, Hot Springs, Jonesboro, and near Memphis.11 Law enforcement officials believe that Route I-40 is a common path for traffickers between the human trafficking hubs of Memphis and Tulsa.

Common Misconceptions Numerous misconceptions regarding human trafficking persist.12 Despite its name, human trafficking does not require movement of any kind. Physical force or restraint is not required either; the coercion exerted by a trafficker may be solely psychological. Trafficked individuals can be native born or immigrants, lawfully present in the United States or not, and any age, gender, race, or ethnicity. Traffickers and their victims may be strangers or closely related.

Situations that do not start as human trafficking, such as a voluntary employment relationship, may evolve into trafficking if the employee is later coerced to work against his or her will. Finally, while illegal, not all commercial sex acts constitute human trafficking. As described in greater detail below, only commercial sex acts by minors are per se human trafficking.

Despite the presence of human trafficking in our region, interest in the issue, and recent improvements to our laws, there have

Recognizing the Signs of Human Trafficking The presence of the red flags below are an indication that further assessment may be necessary to identify a potential human trafficking situation. This list is not exhaustive and represents only a selection of possible indicators. The red flags may not be present in all trafficking cases and are not cumulative.

Common Work and Living Conditions • Is not free to leave or come and go as he/she wishes • Is in the commercial sex industry and has a pimp / manager • Is unpaid, paid very little, or paid only through tips • Works excessively long and/or unusual hours • Is not allowed breaks or suffers under unusual restrictions at work • Owes a large debt and is unable to pay it off • Was recruited through false promises concerning the nature and conditions of his/her work • High security measures exist in the work and/or living locations (e.g. opaque windows, boarded up windows, bars on windows, barbed wire, security cameras, etc.)

Poor Mental Health or Abnormal Behavior • Is fearful, anxious, depressed, submissive, tense, or nervous/paranoid • Exhibits unusually fearful or anxious behavior after bringing up law enforcement • Avoids eye contact

•

•

Is not in control of his/her own identification documents (ID or passport) Is not allowed or able to speak for him or her self (a third party may insist on being present and/or translating)

Other • Claims of just visiting and inability to clarify where he/she is staying/ address • Lack of knowledge of whereabouts and/or of what city he/she is in • Loss of sense of time • Has numerous inconsistencies in his/her story Note: According to state and federal law, any minor under the age of 18 engaging in commercial sex is a victim of sex trafficking, regardless of the presence of force, fraud, or coercion.

Call the National Human Trafficking Resource Center (NHTRC) toll-free hotline at (888) 373-7888, 24 hours a day, 7 days a week, to report potential human trafficking. All reports are confidential and you may remain anonymous. Interpreters are available.

Source: National Human Resource Trafficking Center:66 http://www.traffickingresourcecenter.org/ what-human-trafficking/recognizing-signs

Additional Resources • Polaris Project

http://www.polarisproject.org Poor Physical Health • Human Trafficking Pro Bono • Lacks medical care and/or is denied Resource Center medical services by employer http://www.htprobono.org • Appears malnourished or shows • Human Trafficking and the State signs of repeated exposure to harmCourts Collaborative ful chemicals http://www.htcourts.org • Shows signs of physical and/or sex• Arkansas State Task Force for the ual abuse, physical restraint, conPrevention of Human Trafficking finement, or torture http://arkansasag.gov/programs/ criminal-justice/human-traffickingLack of Control task-force • Has few or no personal possessions • Department of State Trafficking in • Is not in control of his/her own Persons Report money, no financial records, or bank http://www.state.gov/j/tip/rls/ tiprpt/index.htm account

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been relatively few criminal prosecutions and virtually no civil suits against traffickers in Arkansas courts. Indeed, trafficking victims are sometimes prosecuted for coerced activities that occurred as a result of their trafficking. Greater knowledge of the signs of human trafficking and laws related to it will help Arkansas attorneys and judges better identify and respond to human trafficking.

The Legal Framework International, federal, and state law all address human trafficking.13 Laws explicitly addressing human trafficking and passed since 2000 supplemented existing prohibitions on slavery, forced labor, commercial sex, and other forms of exploitation.

International Anti-Trafficking Law The Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime (commonly referred to as the “Palermo Protocol”), was adopted by the United Nations in 200014 and ratified by the United States in 2005.15 The Palermo Protocol defines trafficking in persons and sets out requirements for the criminalization and prosecution of traffickers, protection and care for trafficked persons, and monitoring and coordinated prevention of trafficking.

Federal Anti-Trafficking Law Congress enacted the Trafficking Victims Protection Act (“TVPA”)16 in 2000.

Subsequent amendments and reauthorizations have largely expanded and strengthened the federal statute’s protections.17 The TVPA takes a three-prong approach to trafficking: prevention, protection, and prosecution. The TVPA prohibits a variety of human trafficking-related activities, including forced labor,18 sex trafficking of children and sex trafficking by force, fraud or coercion,19 trafficking with respect to peonage, slavery, involuntary servitude or forced labor,20 and unlawful conduct with regard to government identification and immigration documents.21 The TVPA applies extraterritorially; so long as the trafficker is a U.S. citizen, lawful permanent resident, or present in the United States, he or she can be held liable for acts that occurred abroad.22 Arkansas Anti-Trafficking Laws In recent years, the Arkansas legislature has 38

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made efforts to improve the state’s response to human trafficking. In 2013, it enacted the Arkansas Human Trafficking Act and two related acts.23 Like the federal law, Arkansas law also seeks to prevent trafficking, protect survivors, and prosecute traffickers.24 Prevention strategies include posting requirements for certain establishments25 and creation of a state human trafficking task force.26 Protection strategies include a civil remedy for trafficked persons,27 creation of a state plan to provide assistance to trafficking victims and sexually exploited children,28 and a Safe Harbor Fund for Sexually Exploited Children.29 In addition, a person convicted of prostitution may now file a petition to seal the conviction if it was obtained as a result of being a victim of human trafficking.30 Arkansas law criminalizes trafficking in persons, authorizes forfeiture of conveyances used in the commission or attempt of trafficking in persons,31 and requires payments to the Safe Harbor Fund by individuals convicted of trafficking in persons, prostitution, or solicitation of services.32 Arkansas law also provides for training of law enforcement and prosecutors and creation of an interim study on the problem of child sex trafficking and the commercial sexual exploitation of children in Arkansas.33 In recognition of the state’s 2013 legislative activity, the national advocacy organization Polaris Project named Arkansas the most improved state in anti-human trafficking laws.34 However, Polaris Project still recommends that Arkansas adopt stronger legislation to vacate convictions of trafficking victims.35 There continues to be considerable interest in human trafficking-related legislation. During the 2015 legislative session, at least 11 bills were introduced related to the issue.36 Under Arkansas law, a person engages in trafficking in persons if he or she knowingly: “(1) recruits, harbors, transports, obtains, entices, solicits, isolates, provides, or maintains a person knowing that the person will be subjected to involuntary servitude; (2) benefits financially or benefits by receiving anything of value from participation in a venture [under subdivision (1)]; (3) subjects a person to involuntary servitude; or (4) recruits, entices, solicits, isolates, harbors, transports, provides, maintains, or obtains a minor for commercial sexual activity.”37 Involuntary servitude is broadly defined to include the

inducement or compulsion of a person to engage in labor, services, or commercial sexual activity by means of: a scheme, plan, or pattern of behavior with a purpose to cause a person to believe that if he or she does not engage in labor, services, or commercial sexual activity, he or she or another person will suffer serious physical injury or physical restraint; abuse or threatened abuse of the legal process; the causing of or the threat to cause serious harm to a person; physically restraining or threatening to physically restrain another person; the kidnapping of or threat to kidnap a person; the taking of another person’s personal property or real property; the knowing destruction, concealment, removal, confiscation, or possession of an actual or purported passport, other immigration document, or other actual or purported government identification document of another person; extortion or blackmail; deception or fraud; coercion, duress, or menace; debt bondage; peonage; or the facilitation or control of a victim’s access to an addictive controlled substance.38 Last summer, the Arkansas Attorney General’s Human Trafficking State Task Force for the Prevention of Human Trafficking issued a report that included a series of detailed recommendations regarding how to best combat trafficking in Arkansas.39 Several of the recommendations were targeted at improving services for trafficking survivors, such as licensing and regulating agencies that hold themselves out as providing services to trafficking victims and requiring all medical facilities to adopt policies regarding care and services for trafficking victims. The Task Force recommended funding human trafficking training programs for judges, public defenders, law enforcement, and other state service providers. It also recommended creating an Arkansas Prevention of Human Trafficking Board and hiring staff at the Attorney General’s office to serve as a clearinghouse and to maintain traffickingrelated records and statistics. Among the Task Force’s other recommendations were increased posting requirements, continued use of the national hotline to report trafficking, and mandates for law enforcement to cooperate with immigrant trafficking victims.

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Missing and Unknown Heirs Located No Expense to the Estate Domestic and International Service for: Courts Lawyers Trust Officers Administrators/Executors 1345 Wiley Road Suite 121, Schaumburg, IL 60173 Telephone: 800-844-6778 Fax: 800-946-6990 www.landexresearch.com Civil Remedies for Trafficking Survivors Under the federal TVPA, trafficked individuals can sue their traffickers and any other person or entity that knowingly benefitted from the trafficking.40 Since 2013, Arkansas law also provides a private right of action.41 Trafficked persons can recover actual, compensatory, and punitive damages, and seek injunctive and other appropriate relief, as well as attorneys’ fees and costs.42 When the trafficker’s conduct was willful and malicious, treble damages are mandatory.43 Claims under the TVPA must be brought within 10 years.44 The statute of limitations is not specified in the Arkansas statute.45 The statute of limitations for claims under Arkansas law does not begin to run until the trafficked individual “discovers the human trafficking incident occurred and that the defendant caused, was responsible for, or profited” from it.46 The limitations period for minor victims does not begin until they are 18 and there are additional protections for plaintiffs who are under disability or subject to threats, manipulation, fraud, or other conduct by the trafficker intended to delay the filing.47 A civil lawsuit that includes claims under the TVPA may be stayed pending a criminal prosecution.48 The stay is not automatic, but may be requested by the prosecutor.

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Depending on the circumstances, trafficking survivors may bring additional claims related to the exploitation. For example, in cases involving labor trafficking, claims for unpaid minimum or overtime wages can be brought under the Fair Labor Standards Act and Arkansas Minimum Wage Act.49 Tort, contract, and other common law claims as well as civil Racketeer Influenced and Corrupt Organizations Act (RICO) claims may be appropriate in cases involving either sex or labor trafficking.50 Prosecution of Trafficking-Related Crimes In 2014, the Department of Justice prosecuted 174 traffickers nationally in cases involving forced labor, sex trafficking of adults, and sex trafficking of children.51 Of those prosecutions, 113 involved predominantly sex trafficking and 25 involved predominantly labor trafficking.52 Restitution is mandatory under the TVPA and requires recovery of the greater of the gross income or value to the defendant of the victim’s services or labor or the value of the labor as guaranteed under the Fair Labor Standards Act.53 Despite this requirement, a recent study found that restitution was awarded in only 36 percent of cases nationally.54

Immigration Relief for Trafficking Survivors Foreign citizens who are victims of a severe form of human trafficking may be eligible for immigration relief, including continued presence and a T-visa.

Traffickers tend to prey on the most vulnerable populations, including those who have a tenuous immigration status. For example, foreign citizens who lawfully enter the United States with a temporary work visa are no longer lawfully present if their employment ends for any reason—even if their employer breaks the law. Others may be unlawfully present in the United States or working without authorization. For example, women who were recruited to work cleaning hotels and do not have authorization to work may instead be forced to strip in nightclubs when they arrive in the United States. Such individuals are highly vulnerable to human trafficking.

To ensure they are willing to step forward and help prosecute traffickers, victims need some assurance that they will be safe and have a lawful means to support themselves and those who rely on them.

Continued Presence Law enforcement officials may request continued presence for trafficked individuals.55 Continued presence is an important law enforcement tool. It permits the individual to temporarily remain in the United States so that he or she can assist law enforcement with investigation and prosecution of human trafficking-related crimes.56 Because trafficked individuals may initially be too frightened or traumatized to assist law enforcement, eligibility only requires that the individual be a potential witness; cooperation is not required.

Once granted, continued presence may be extended to permit the individual to resolve a civil lawsuit filed under the TVPA.57 The T-Visa Victims of a severe form of human trafficking may also be eligible for more permanent relief in the form of a T-visa. Applicants for a T-visa must comply with reasonable requests from law enforcement to assist in the investigation or prosecution of the trafficker, unless the applicant is under the age of 18 or unable to cooperate due to physical or psychological trauma.58 In the absence of an investigation or prosecution, the trafficked individual can still be eligible for the T-visa. To be eligible, the trafficked individual must be physically present in the United States as a result of the trafficking and face extreme hardship involv-

ing severe harm should he or she be removed from the United States.59 While only 5,000 T-visas may be issued annually, less than 500 have ever been issued in a single year.60 Continued presence and the T-visa both trigger eligibility for work authorization and temporary federal benefits so that the trafficked person can sustain himself or herself during the pendency of the investigation and any resulting prosecution.61 While not specifically designed for human trafficking, the U-visa, S-visa, asylum, Violence Against Women Act self-petition, and Special Juvenile Immigrant Status offer additional options for some survivors.62 Overcoming Barriers The Attorney General’s Task Force identified a variety of barriers law enforcement and social service providers face when investigating human trafficking and serving survivors.63 Among the barriers are: fears of arrest and deportation, language and cultural differences, insufficient training and other resources, and lack of public awareness.64 Lawyers also face barriers when representing survivors of trafficking and prosecuting traffickers. Bringing cases involving human trafficking requires skill and sensitivity.65 Particularly in cases involving psychological coercion rather than physical restraint, use of experts may be necessary to educate the jury about why an individual did not feel free to leave.

Trafficking frequently involves a violation of a trust relationship, so survivors may struggle to trust their attorney, law enforcement, and prosecutors. Care should be taken to prevent the survivor from feeling coerced, controlled, or manipulated as these are the characteristics of a human trafficking relationship and may result in further harm to the individual and hamper the prosecution or representation. While it may be tempting to “rescue” trafficked persons, this approach risks inadvertently deepening a survivor’s sense of powerlessness. Instead, whenever possible, they should be encouraged to make decisions and take action for themselves.

Many trafficked individuals have experienced trauma and, as a result, may have difficulty remembering details related to the human trafficking. Even if they can remember, they may be reluctant to share everything that happened and may never share every detail. In these cases, jurors may need help understanding the neurological impacts of trauma and why a survivor’s story is incomplete or has changed over time. It may

also be useful to partner with qualified and experienced counselors, therapists, and case managers to provide appropriate support— particularly around potentially stressful events such as depositions and trials.

Properly trained and skilled interpreters should always be used in litigation and immigration matters involving clients with limited English proficiency. This is especially true in cases involving human trafficking.

Heightened caution is required to protect the trafficked individual by ensuring the interpreter does not have a conflict of interest, accurately interprets everything that is said, and maintains strict confidentiality. [Editor’s note: See article on page 20 for more information on interpreters.]

Role for the Arkansas Bar Knowledge of human trafficking and the laws related to it will help attorneys and judges to identify trafficked individuals and ensure they receive the relief to which they are entitled. It will also help hold human traffickers accountable for their abuse of our most vulnerable populations. Diligent representation of trafficked persons and prosecution of traffickers coupled with efforts to address the roots of trafficked persons’ vulnerability will go a long way towards combatting human trafficking in Arkansas.

Endnotes: 1. Former Razorback charged with human trafficking, THV11 (Mar. 30, 2015), http://www. thv11.com/story/news/crime/2015/03/30/ former-razorback-charged-with-human-trafficking/70673996/.

2. Id. 3. Two Men Sentenced to a Total of 55 Years in Prison for Unrelated Sexual Crimes Involving Minors, FBI (Mar. 26, 2015), http://www.fbi. gov/littlerock/press-releases/2015/two-mensentenced-to-a-total-of-55-years-in-prison-forunrelated-sexual-crimes-involving-minors.

4. Erin Hawley, Arrest made in Arkansas human trafficking operation, children rescued, KATV (May 4, 2015), http://www.katv.com/ story/28972424/arrest-made-in-arkansashuman-trafficking-operation-four-childrenrescued.

5. Ramos-Madrigal v. Mendiola Forestry Service, LLC, 799 F. Supp. 2d 958 (W.D. Ark. 2011).

6. Id. 7. Id. 8. Colleen Owens et al., Understanding the Organization, Operation, and Victimization Process of Labor Trafficking in the United States, Urban Institute (last visited June 9, 2015),

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

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available at: http://www.urban.org/sites/ default/files/alfresco/publication-pdfs/413249Understanding-the-Organization-Operationand-Victimization-Process-of-Labor-Trafficking-in-the-United-States.PDF. 9. Fact Sheet, U.S. Department of State Office to Monitor and Combat Trafficking in Person (June 20, 2014), http://www.state.gov/j/tip/rls/fs/2014/235141. htm.

10. National Human Trafficking Resource Center (NHTRC) Data Breakdown: Arkansas State Report, National Human Trafficking Resource Center (last visited June 8, 2015), available at: http://www.traffickingresourcecenter.org/sites/default/files/NHTRC%20 2014%20Arkansas%20State%20Report%20 -%20AR%20-%2001.01.14%20-%20 12.31.14_0.pdf.

11. Id. 12. For more information, see: Myths & Misconceptions, National Human Trafficking Resource Center (last visited June 8, 2015), available at: http://www. traffickingresourcecenter.org/what-humantrafficking/myths-misconceptions.

13. A database of human trafficking lawsuits is available here: Human Trafficking Database, Michigan Law (last visited June 8, 2015), available at: https://www.law.umich.edu/clinical/HuTrafficCases/Pages/searchdatabase.aspx.

14. United Nations Convention against Transnational Organized Crime and the Protocols Thereto, United Nations Office on Drugs and Crime (last visited June 8, 2015), available at: http://www.unodc.org/ unodc/en/treaties/CTOC/index.html.

15. Chapter XVIII: Final Matters, United Nations Treaty Collection (last visited June 8, 2015), available at: https:// treaties.un.org/Pages/ViewDetails. aspx?src=TREATY&mtdsg_no=XVIII12&chapter=18&lang=en.

16. Victims of Trafficking and Violence Protection Act of 2000, Pub. L. No. 106–386, 114 Stat. 1464.

17. Id. 18. 18 U.S.C. § 1589.

19. 18 U.S.C. § 1591.

20. 18 U.S.C. § 1590.

21. 18 U.S.C. §§ 1592 and 1597.

22. 18 U.S.C. § 1596.

23. Human Trafficking Protection Act of 2013, Ark. Code Ann. § 5-18-101 (2013), available at: http://www.arkleg.state.ar.us/ assembly/2013/2013R/Bills/HB1203.pdf.

24. Id. 25. Ark. Code Ann. § 12-19-102.

26. Ark. Code Ann. § 12-19-101.

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27. Ark. Code Ann. § 16-118-109.

28. Ark. Code Ann. § 16-90-1116; A.C.A. § 9-27-323.

29. Ark. Code Ann. § 19-5-1252.

30. Ark. Code Ann. § 16-90-123.

31. Ark. Code Ann. § 5-5-202.

32. Ark. Code Ann. §§ 5-18-103(d); 5-70102; 5-70-103.

33. Ark. Code Ann. § 12-18-1202.

34. See 2013 State Ratings on Human Trafficking Laws, Polaris (last visited June 8, 2015), available at: http://www.polarisproject.org/what-we-do/policy-advocacy/ national-policy/state-ratings-on-humantrafficking-laws/2013-state-ratings-on-humantrafficking-laws. The Arkansas state report is available here: Arkansas State Report State Ratings 2013, Polaris Project (last visited June 8, 2015), http://www.polarisproject. org/storage/documents/Arkansas_State_ Report_2013_08_01_16_51_32_564.pdf.

35. Arkansas State Report State Ratings 2014, Polaris (last visited June 8, 2015), available at: http://www.polarisproject.org/storage/ documents/2014_State_Reports/Arkansas_ State_Report.pdf.

36. See, e.g., S.B. 1012, 90th Gen. Assemb.

Reg. Sess. (Ark. 2015); S.B. 120, 90th Gen. Assemb. Reg. Sess. (Ark. 2015); H.B. 1530, 90th Gen. Assemb. Reg. Sess. (Ark. 2015); H.B. 1594, 90th Gen. Assemb. Reg. Sess.

(Ark. 2015); H.B. 1767, 90th Gen. Assemb.

Reg. Sess. (Ark. 2015); S.B. 55, 90th Gen. Assemb. Reg. Sess. (Ark. 2015); H.B. 1673, 90th Gen. Assemb. Reg. Sess. (Ark. 2015); H.B. 1765, 90th Gen. Assemb. Reg. Sess.

(Ark. 2015); S.B.811, 90th Gen. Assemb.

Reg. Sess. (Ark. 2015); S.B.867, 90th Gen. Assemb. Reg. Sess. (Ark. 2015); and H.B.1562, 90th Gen. Assemb. Reg. Sess.

(Ark. 2015).

37. Ark. Code Ann. § 5-18-103(a).

38. Ark. Code Ann. § 5-18-102.

39. Report of the Arkansas Task Force for the Prevention of Human Trafficking, Arkansas Attorney General’s State Task Force for the Prevention of Human Trafficking (Aug. 2014), available at: https://static.ark.org/eeuploads/ag/ HumanTraffickingTaskForceReport.pdf.

40. Human Trafficking Protection Act of 2013, Ark. Code Ann. 5-18-101 (2013).

41. Ark. Code Ann. § 16-118-109.

42. Id. 43. Id. 44. Id. 45. Id. 46. Ark. Code Ann. § 16-118-109(f)(1).

47. Ark. Code Ann. §§ 16-118-109(f)(2)-(5).

48. 18 U.S.C. § 1595(b).

49. 29 U.S.C. § 203; Ark. Code Ann. § 11-4-203.

50. For a complete review of possible causes of action, see Civil Litigation on Behalf of Victims of Human Trafficking, Southern Poverty Law Center Dec. 2008), available at http:// www.splcenter.org/get-informed/publications/ civil-litigation-on-behalf-of-victims-of-humantrafficking.

51. Trafficking in Persons Report 2014, United States Department of State (2015), available at http://www.state.gov/documents/organization/226849.pdf.

52. Id. 53. 18 U.S.C. § 1593.

54. Alexandra F. Levy & Martina E. Vandenberg, When “Mandatory” Does Not Mean Mandatory: Failure to Obtain Criminal Restitution in Federal Prosecution of Human Trafficking Cases in the United States, The Human Trafficking Pro Bono Legal Center (last visited June 8, 2015), available at: https://www.wilmerhale.com/ uploadedFiles/Shared_Content/Editorial/ Publications/Documents/Human-TraffickingWhen-Mandatory-Does-Not-MeanMandatory-2014.pdf.

55. 22 U.S.C. § 7105(c)(3).

56. Id. 57. 22 U.S.C. § 7105 (3)(A)(c)(iii).

58. 8 U.S.C. § 1101(a)(15)(T).

59. Id. 60. 8 U.S.C. § 1255(l)(4)(B).

61. Victims of Human Trafficking: T Nonimmigrant Status, U.S. Citizenship and Immigration Services (last visited June 8, 2015), available at: http://www.uscis.gov/ humanitarian/victims-human-traffickingother-crimes/victims-human-trafficking-tnonimmigrant-status.

62. 8 U.S.C. § 1101(a)(15)(U) (U-visa); 8 U.S.C. § 1101(a)(15)(S) (S-visa); 8 U.S.C. § 1101(a)(42) (asylum); 8 U.S.C. § 1101(a) (27)(J) (SJIS); 42 U.S.C. § 13701 (VAWA).

63. Report of the Arkansas Task Force for the Prevention of Human Trafficking, supra note 39 at 8.

64. Report of the Arkansas Task Force for the Prevention of Human Trafficking, supra note 39 at Appendix E. 65. See Civil Litigation on Behalf of Victims of Human Trafficking, Southern Poverty Law Center (Dec. 2008), available at: http:// www.splcenter.org/get-informed/publications/ civil-litigation-on-behalf-of-victims-of-humantrafficking. 

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arkansas supreme court historical society

Edward Cross Superior Court Judge, Congressman, Supreme Court Justice and Railroad President

By Judge J.W. Looney

Edward Cross had an interesting career as an Arkansas public servant. His varied service was due, in part, to the connections he established as a young lawyer in Arkansas. Cross was born in Hawkins County, Tennessee, near the Virginia border on November 11, 1798, but his family apparently moved to Kentucky soon thereafter. As a young man he moved to Overton County, Tennessee, and read law with Adam Huntsman, a political opponent of Davy Crockett. He became a member of the bar and practiced law a few years before moving to Arkansas in 1826 and settling in the Marlbrook community in Hempstead County. There he formed a law partnership with Daniel Ringo, future Chief Justice of the Arkansas Supreme Court. He acquired a plantation in Hempstead County, along with other business interests, and had land claims in other parts of the state. In 1831 he married Laura Frances Elliott, the sister of Mary Elliott, wife of Chester Ashley, who was not only one of the leading figures in Arkansas political life but one of the state’s wealthiest landowners. Ashley and Cross were involved in land speculation together.

Cross was appointed to the Territorial Superior Court bench by President Andrew Jackson in 1830 and served until statehood in that role. He was then state surveyor until elected to Congress in 1838, where he served three terms. He apparently tired of being away from home and decided not to seek a fourth term, although he had been elected by a wide margin in each previous race. For example, in the 1840 race he barely campaigned, making only one speech in Little Rock, yet handily defeated the Whig candidate, Absolam Fowler.

A vacancy was created on the Supreme Court in mid-1845 by the resignation of Justice Thomas Lacy. Cross agreed to accept the appointment to fill the remainder of the term and served only through 1846. (A number of 44

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biographers incorrectly list his service as being longer, but official records do not bear this out.)

Cross was respected for his “sound sense” as a lawyer and judge although not considered to be great as either a lawyer or politician.

Archibald Yell in a letter to James K. Polk, discussing Cross, spoke well of Cross but said he was a “poor electioneerer.” Cross’ service on neither the Superior Court nor the Supreme Court was especially noteworthy. His bestknown opinion on the territorial bench was Grande v. Foy,1 which dealt with the adoption of the common law in Arkansas territory. Judge Morris Arnold acknowledged this contribution to the development of the law but refers to the opinion as being “discursive and somewhat incoherent.” On the Supreme Court his limited service includes Pendleton v.

State,2 an opinion on the constitutionality of a statute that restricted movement of free blacks into the state. Otherwise, most of his opinions were relatively routine matters relating to debt and probate. Interestingly, one case heard by the court during this period was Cross Ex Parte,3 in which Cross petitioned the court to stay a judgment issued in Hempstead Circuit Court alleging that service was insufficient in that the return of the sheriff did not state that the complaint was served on a white member of the household at the family residence. The court agreed.

Following service on the court Cross looked after his interests and neither sought nor held any future public office until after Reconstruction when Governor Augustus Garland may have asked him to serve as the state’s Attorney General for a short while.

Cross was a supporter of internal improvements and was particularly interested in railroads for the state. He and a group of investors had acquired a New Madrid claim on land at Fulton as had a competing holder of a preemption claim. The Cross group laid

Edward Cross Courtesy of Arkansas History Commission

out a town and developed a long-range goal for selling lots as the town would grow. This growth was anticipated in connection with the movement to build a railroad line from Illinois to Texas though Arkansas. The Cairo and Fulton Railroad was created to this end and, prior to the Civil War, was one of the companies competing for funds and investors. Cross became president of the railroad in 1855 and served until the outbreak of the Civil War. No tracks had been put down at that time. After the war this company merged with another to become the Iron Mountain, St. Louis and Southern, but Cross was no longer active in management.

Cross was referred to as “kind and hospitable” and created a comfortable living situation in Hempstead County. Among his visitors was G.W. Featherstonhaugh who wrote of his travels in Arkansas. He described the Cross home as having “a rare rug on the floor; a warm fireplace and—surprise—a piano.”

Cross died on April 6, 1887, and was interred in Marlbrook Cemetery in Hempstead County.

Endnotes: 1. 10 Fed. Cas. (Hempstead 105) 954 (Sup. Ct. Terr. Ark. 1831).

2. 6 Ark. 509 (1846).

3. 7 Ark. 44 (1846).

J. W. Looney is Polk County District Judge; Circuit Judge (Retired) for the 18W Judicial Circuit; and Distinguished Professor, Emeritus, University of Arkansas School of Law. This article is provided by the Arkansas Supreme Court Historical Society, Inc. For more information on the Society, contact Rod Miller, rod.miller@arkansas. gov; Phone: 501 682 6879. 

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Report from June 2015 House of Delegates Meeting

By Karen K. Hutchins

Brian H. Ratcliff passes the President’s Gavel to Eddie H. Walker, Jr., during the June 13 House of Delegates Meeting.

President Brian Ratcliff presided over the Association’s House of Delegates meeting during the 117th Annual Meeting held at the Hot Springs Convention Center on June 13, 2015. President Ratcliff updated the House members on several member benefit improvements for Association members. One is the development of the mobile version of the Association’s weekly e-Bulletin making the newsletter easier to read via a smart phone.

Another is the continued expansion of the ArkBar Docs library with 45 new probate forms. Member subscribers can access upto-date intelligent legal templates, anytime, anywhere and from any device, now including both Macs and PCs. These templates enable subscribers to create complex legal documents quickly and accurately by guiding users through a simple interview process, then automatically generating customized documents based on the answers provided. Efforts will continue to add as many forms as possible from the Association’s previous Formbook in the coming months.

President-Elect Eddie H. Walker, Jr., advised the House members of two new committees that were approved at the April Board of Governors meeting, the Lawyer2-Lawyer Committee and the Social Media Committee. The purpose of the Lawyer-2Lawyer Committee is to assist in recruiting mentors in the three state bar districts when new attorneys request a mentor. The purpose of the Social Media Committee is to 46

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help the Association by expanding its social media outreach with efforts such as re-tweeting information the Association is sending out through social media channels. This will allow us to reach more attorneys through social media. Members interested in joining either of these committees should contact Association Executive Director Karen Hutchins.

President-Elect Walker encouraged delegates to watch for their membership form.

New on this year’s form is the request for demographic information from our members.

Walker explained that the Association hopes to collect this information from our members so it can better evaluate the effectiveness of our programs. Responses are voluntary and will not be displayed in your individual profile.

We hope to collectively use this information to better serve the Association’s members.

The Board of Governors and the House of Delegates has in previous years approved the recommendation of the Dues Task Force to review the Association’s dues structure every three to five years. The task force will be appointed to review the current dues structure and make recommendations if any changes are needed since it has been four years since the previous review of the dues structure.

Retired Justice Annabelle Tuck updated the House of Delegates on the activities that are the result of the recommendation of the previous Joint Task Force on Judicial Elections.

An Instant Response Team is planned to be established as a separate 501(c)(3) corporation to address false campaign claims as they arise in judicial elections.

President Ratcliff reported that he and President-Elect Eddie Walker attended ABA Day in Washington in April where they met with each member of Arkansas’ congressional delegation. It proved to be a great opportunity to discuss issues affecting the Arkansas legal community.

The Association’s Leadership Academy has again provided great opportunities for participants to learn about the legal, judicial and legislative communities. It has proven to be of great benefit to many young attorneys. Twelve

participants graduated in this year’s class and were recognized at the awards luncheon held during Annual Meeting. President Ratcliff recognized the efforts of these future leaders and congratulated them on their completion of this program.

Angela Galvis Schnuerle with the Immigration Law Center, LLP in Little Rock and Sandra Young Harris of Pine Bluff were selected at the May Board of Governors meeting to receive this year’s Lawyer Community Legacy Award. The award is presented to attorneys and judges who have performed volunteer public services out of a sense of duty, professionalism, and a genuine desire to give back to the community. Both attorneys were recognized during the awards ceremony at the Annual Meeting for their contributions to their community.

Outgoing President Brian Ratcliff presented incoming President Eddie Walker, Jr., with his President’s Pin and passed the gavel to him. 2015-2016 President Walker announced his appointments of Scott Zuerker as Chair of the Board of Governors, Leon Jones, Jr., as Parliamentarian, and Aaron Squyres as Annual Meeting Chair. Denise Hoggard assumed the position of President-Elect at the end of this year’s Annual Meeting.

The January 2016 House of Delegates meeting is scheduled for Friday afternoon, January 29, 2016, at the Marriott Hotel in Little Rock, AR. President Walker thanked Kathleen McDonald for agreeing to plan this year’s Mid-Year event. The June 2016 House of Delegates is scheduled for Friday, June 17th and will remain at the Hot Springs Convention Center. 

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

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DISCIPLINARY ACTIONS Judicial Discipline & Disability Commission Actions

Attorney Disciplinary Actions

On May 15, 2015, the Arkansas Judicial Discipline and Disability Commission announced that an agreed Letter of Reprimand was issued to Thirteenth Judicial District Circuit Court Judge Edwin A. Keaton in Commission Case #13-302.

Final actions from April 1 - June 30, 2015, by the Committee on Professional Conduct.

Summaries prepared by the Office of Professional Conduct (OPC). Full text documents are available on-line either at http://courts.arkansas.gov and by entering the attorney’s name in the attorney locater feature under the “Directories” link on the home page, or also on the Judiciary home page by checking under “Opinions and Disciplinary Decisions.”

[The “Model” Rules of Professional Conduct are for conduct prior to May 1, 2005. The “Arkansas” Rules are in effect from May 1, 2005.]

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

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COLSON, DONALD W., Bar No. 2005166, of Saline County, Arkansas, petitioned to surrender his Arkansas law license on April 15, 2015, in lieu of disbarment proceedings a committee panel had directed in Case No. CPC 2014-041

Email: ahubbard@arkbar.com or call 501-375-4606

on a complaint brought by Sharon Cornice regarding Colson’s representation of her son on a criminal post-conviction matter, based on the panel’s findings of violations of Arkansas Rules 1.3, 1.4(a)(3), 1.16(a)(1), 3.2, 5.5(a), and 8.4(d) and consideration of Colson’s prior disciplinary record. The Arkansas Supreme Court accepted Colson’s surrender by Per Curiam issued April 30, 2015, in Case No. D-15-317.

MAGGIO, MICHAEL A., Bar No. 90015, of Conway, Arkansas, a former circuit judge, petitioned the Supreme Court in Case No. D-15-240 to surrender his law license as a result of his guilty plea on January 9, 2015, in United States District Court Case No. 15-cr-001 to a felony bribery offense arising from his action in significantly reducing the amount of damages awarded by a jury in a civil case over which he presided. The Court accepted his surrender on April 16, 2015.

MERRITT, FARRIS E., Bar No. 2001133, of Centerton, Benton County, Arkansas, petitioned the Supreme Court in Case No. D-15-308 to surrender his law license as a

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Contact us by phone (501) 660-4049, email at emipeacemakers@sbcglobal.net or go to www.ElderMediationInc.com for more information.

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DISCIPLINARY ACTIONS result of his convictions on April 1, 2015, of two felony offenses, battery and aggravated assault, in Benton County Circuit Court, for which he was sentenced to a term of 12 years imprisonment. The Court accepted his surrender on April 30, 2015.

PACE, JAMES ROBIN, Bar No. 85123, of Bentonville, Arkansas. On November 21, 2014, Committee Panel A voted that disbarment proceedings be initiated by the Executive Director in Case No. CPC 2014015 on a complaint brought by Benton County Circuit Judge Brad Karren and the Arkansas Securities Department based on Pace’s alleged fraudulent involvement in matters that were part of a civil regulatory suit brought by the Department against Pace and others, including a firm named Nick Lynn Technologies, Inc., and the panel’s findings of violations of AR Rules 1.1 and 8.4(c). In lieu of filing the disbarment suit, Pace petitioned the Supreme Court to surrender his law license, as Case No. D-141110, acknowledging he had engaged in serious misconduct. The Court accepted his surrender on April 23, 2015.

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REPRIMAND: CLOUETTE, JAMES P., Bar No. 74025, of Little Rock, Arkansas, in Committee Case No. CPC 2014-052, on May 15, 2015, was reprimanded and ordered to pay $370.50 restitution on a complaint by Janice Flowers for violations of Arkansas Rules 1.1, 1.2(a), 1.3, 1.4(b), 1.16(d), and 8.4(d). In 2009, Clouette began representing James Flowers, convicted of capital murder and serving a life without parole sentence, in a post-conviction matter, where the Rule 37 petition was denied and Clouette filed a notice of appeal and timely lodged the record. Clouette then asked Mrs. Flowers for $3,500 more to pursue the appeal, which she was unable to pay. Ms. Flowers gave him her check for $205.50 for his use in paying for the circuit clerk’s record to be used in her husband’s appeal. She also gave Clouette $165.00 in cash for his use in paying the appellate filing fee. No such fee was charged or paid to lodge the Flowers Rule 37 appeal.

Clouette failed to account to Ms. Flowers for the $165.00 or refund it to her.

Clouette then abandoned the appeal of his client Flowers, without notice to Ms.

Charles Harrison

Will Bond

Environmental, wrongful death, injury and defective product attorneys www.McMathLaw.com | 711 West 3rd, Little Rock, AR 72201 | 501.396.5400 www.facebook.com/McMathWoods, www.twitter.com/McMathWoods www.linkedin.com/company/mcmath-woods-p-a-

Flowers or her husband, by failing to file a brief or a response to the State’s motion to dismiss. He failed to file to withdraw as attorney for Flowers in his Rule 37 appeal or to obtain permission to withdraw, leaving Flowers without counsel at a critical stage in his Rule 37 appeal. The Attorney General’s

office filed a motion to dismiss the Flowers appeal, and Clouette filed no response. By per curiam issued October 10, 2013, the Court granted the motion to dismiss. As a result of this dismissal, Flowers may now be procedurally barred from seeking further court relief. For her imprisoned husband’s

Vol. 50 No. 3/Summer 2015 The Arkansas Lawyer

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DISCIPLINARY ACTIONS but admitted that five of the applications had not been signed prior to filing. Judge Barry had Cordes appear at a show cause hearing on September 24, 2013, and found Cordes in violation of the Federal Rules of Bankruptcy Procedure, the U.S. Code, and the Arkansas Rules of Professional Conduct. Judge Barry placed Cordes on a six-month probationary period with the bankruptcy court, ordered him to pay a fine of $750.00, and to complete the Multistate Professional Responsibility Examination.

CAUTION:

use, Ms. Flowers has requested a copy of the record or transcript Clouette obtained from the circuit clerk with her $205.50, but he did not provide her these case file documents.

CORDES, VAUGHN-MICHAEL H., Bar No. 2004192, of Rogers, Arkansas, entered into consent to discipline approved June 22, 2015, for a reprimand and costs for his violation of Rule 3.4(c) in No. CPC 2014050, based on a self-report of his conduct in the United States Bankruptcy Court for the Western District of Arkansas. Cordes filed 23 cases in bankruptcy court and filed applications to pay filing fees in installments in 19 of those cases despite having received payment in those cases. Judge Ben Barry ordered Cordes to appear before his court and provide the original application to pay filing fees and receipts for payment made by each of the clients. Though required to maintain records for three years after the case is closed, Cordes did not provide the court with all the documentation that was requested by the court’s deadline. Cordes was able to provide 10 original applications 52

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KEARNEY, JACK R., Bar No. 77194, of Little Rock, Arkansas, in Committee Case No. CPC 2015-012, by Findings and Order filed June 22, 2015, was cautioned for violations of Arkansas Rules 1.3, 1.4(a) (3), and 8.4(d), for his conduct in the representation of Abigail Ransom in Ransom and Harvey vs. Arkansas Dept. Of Human Services, No. CV-14-1013. In October 2014, Kearney entered his appearance on behalf of Ms. Ransom in the termination of parental rights proceeding in circuit court to supplement the record in the lower court case. The trial court denied his request. On October 23, 2014, the court issued an order terminating Ms. Ransom’s parental rights to her minor child. No timely notice of appeal was filed. On November 25, 2014, Ms. Ransom filed a pro se Motion to File Belated Appeal, alleging she was never notified by Kearney of the termination of her parental rights. The Supreme Court denied Ms. Ransom’s motion without prejudice and remanded the matter back to the trial court for determination of attorney fault.

By order on December 22, 2014, the trial court found Kearney had petitioned the court to be relieved as attorney of record for Ms. Ransom, that request was denied, that Kearney was still the attorney of record for Ms. Ransom as of October 23, 2014, and that he was notified of the substitution of counsel and entry of the order terminating Ms. Ransom’s parental rights by email from the court staff on October 23, 2014.

Kearney admitted to receiving the email. He stated that he was entering an appearance on behalf of the mother for the limited purpose of supplementing the record; however, the trial court found that his substitution was not predicated on the court’s allowing

additional testimony or information. The court was not aware that Kearney did not wish to represent Ms. Ransom until he filed a Motion to Be Relieved after close of business on November 12, 2014.

The trial court found Kearney’s motion deficient in notification to Ms. Ransom as she was not listed on the certificate of service accompanying the motion, and there was nothing from Ms. Ransom indicating she agreed with the motion. The court ruled that Kearney received timely notice that he had been substituted as attorney for Ms. Ransom, the substitution was unconditional and unequivocal, he had received timely notice of the termination of Ms. Ransom’s parental rights, and he was found responsible, as attorney of record, to notify his client of the termination of her parental rights and to file a Notice of Appeal on her behalf. On January 6, 2015, Kearney filed a Motion to be Relieved as Attorney of Record on Appeal, to Determine Indigency Status of Appellant, and to Appoint Appellate Counsel for Appellant.

The Supreme Court issued its Per Curiam accepting the trial court’s finding that Kearney was at fault for not filing a timely Notice of Appeal and granted Ms. Ransom’s Motion to File Belated Appeal. Kearney was relieved as counsel for Ms. Ransom, the Arkansas Public Defender Commission was appointed to represent her, and a copy of the Per Curiam was sent to the Committee on Professional Conduct.

MUKE, IRIS L., Bar No. 2003119, of Clarksville, Arkansas, in Case No. CPC 2015-010, by consent findings and order filed on April 20, 2015, on a complaint generated from an appellate file, was cautioned for violation of Arkansas Rules 1.3 and 8.4(d). Ms. Muke represented clients in a boundary line dispute in Johnson County Circuit Court CV-2013-29, and filed a timely notice of appeal and designation of record. The deadline for filing the record on appeal was October 27, 2014, and Ms. Muke tendered the record on October 28, 2014. Ms. Muke filed a Motion for Rule on Clerk stating she miscalculated the due date, causing her to tender the record one day late. The Arkansas Supreme Court denied the Motion for Rule on Clerk and her clients lost their opportunity for appeal of an adverse trial outcome. 

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Arkansas Bar Foundation 2224 Cottondale Lane, Little Rock, Arkansas 72202 www.arkansasbarfoundation.com • 501.375.4606

Memorials and Honoraria

New Fellows

The Arkansas Bar Foundation acknowledges with grateful appreciation the receipt of the following memorial, honoraria and scholarship contributions received during the period May 1, 2015, through July 20, 2015.

The Arkansas Bar Foundation welcomes the following new Fellows:

In Memory of Eugene G. Sayre C. C. “Cliff ” Gibson III In Memory of Lloyd A. Henry, Jr. B. Jeffery Pence In Memory of Ron Naramore B. Jeffery Pence In Memory of William H. “Buddy” Sutton Patti and Charles Coleman Charles Frierson III Gibson & Keith, PLLC Sally and Jim McLarty Hayden and Gordon Rather Roscopf & Roscopf, P.A. Mary Ann and Don Schnipper Marietta and Judge John Stroud Mike Wilson Honoraria, Scholarship Contributions and Gifts Arkansas Association of Women Lawyers Scholarship Fund Arkansas Association of Women Lawyers Arkansas Bar Foundation Randolph C. Jackson David Potter James H. Larrison, Jr. Scholarship M. Diane Allen In Honor of David Solomon’s Birthday Designated to the David Solomon Scholarship Fund Gill Ragon Owen, P.A. 54

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Paul James of Little Rock Amy Dunn Johnson of Little Rock 2015 - 2016 Officers President Judge James O. Cox Vice President Jeffrey Ellis McKinley Secretary-Treasurer Judge John N. Fogleman Memorial Gifts Please remember the Arkansas Bar Foundation when you choose to make a memorial gift honoring a family member, a colleague or a friend of the profession. Gifts to the Foundation are tax deductible for federal income tax purposes and support the Foundation’s charitable work.

Save the Date Foundation Mid-Year Scholarship Dinner Friday, January 29, 2016

IN MEMORIAM Roy E. Danuser Roy E. Danuser of Mountain Home died June 5, 2015, at the age of 97. He graduated from the University of Arkansas Law School in 1942. During World War II he served in the Army Air Corps and was a “hump pilot,” flying missions over the Himalayas in India, Burma, and China. After the war he returned to Malvern, Arkansas, to practice law and was appointed Circuit Judge for Hot Springs County by Governor Sid McMath. He practiced law and had title companies in Benton and Little Rock. He practiced law in Mountain Home until last year, when he retired at the age of 96. He was a member of the Arkansas Bar Association and a Fellow of the Arkansas Bar Foundation.

Joe Edward Griffin Judge Joe Edward Griffin of Texarkana died May 10, 2015, at the age of 65. He was a former city attorney for Texarkana, municipal judge and retired 8th Judicial District Circuit Judge.

He helped found the Miller County Drug Court. He was a member of the Arkansas Bar Association. He was a Veteran of the United States Army.

George Williford Boyce Haley George Williford Boyce Haley, formerly of Pine Bluff, died on May 13, 2015, at the age 89.

He was a distinguished attorney, diplomat and policy expert who served in seven presidential administrations, including being appointed U.S. Ambassador to The Gambia in West Africa by President Clinton. One of two younger brothers of Pulitzer prize-winning author Alex Haley, Ambassador Haley once resided in Pine Bluff before entering Morehouse College in Atlanta, where he was a classmate and contemporary of Martin Luther King, Jr. As the second African-American to receive a Law degree from the University of Arkansas, Haley worked with attorney Thurgood Marshall on the landmark case Brown v. Topeka, Kansas,

Board of Education, which challenged the separate-but-equal ruling of the U.S. Supreme Court in Plessy v. Ferguson. He was a member of the Arkansas Bar Association.

Aaron “Scott” Hill Aaron “Scott” Hill of Monticello died April 25, 2015, at the age of 41. Scott had two degrees in Psychology from the College of the Ozarks, a Mechanical Engineering degree from the University of Missouri and obtained a Judicial Doctorate of Law degree from the University of Arkansas Law School in Fayetteville. He practiced family law and estate planning.

Lynn Lisk Lynn Lisk of Fort Smith died May 3, 2015, at the age of 54. He was the Director for the Paralegal Studies Program at the University of Arkansas Fort Smith. Previously, Lisk was a practicing attorney in the Little Rock area. He also served as a law clerk for both the Arkansas Supreme Court and the Arkansas Workers Compensation Commission. He served on the Arkansas Supreme Court’s Committee on Continuing Legal Education and was the former Chairman of the Arkansas Supreme Court’s Ethics Committee. He graduated with a Bachelor of Arts from Ouachita Baptist University. He also held a Juris Doctorate from the University of Arkansas at Little Rock’s William H. Bowen School of Law. He was a member of the Arkansas Bar association where he served on the Mock Trial, Paralegal and Law Related Education Committees.

Ron Naramore Ron Naramore, formerly of Hot Springs, died June 20, 2015, at the age of 68. Ron attended the University of Oklahoma and earned Bachelor’s and Master’s degrees in Anthropology. After conducting research in Austria, he earned his Ph.D in Anthropology from the University of Oklahoma. He was

a graduate of the University of Arkansas at Little Rock William H. Bowen School of Law, where he earned his Juris Doctorate and was a member of the Law Review. He was a pioneer faculty member at the newly opened Garland County Community College (now National Park College) in Hot Springs, Arkansas, where he was the first chair of the Social Science Division. He had a long and successful private practice as a litigation attorney, and also served as a deputy prosecutor and juvenile judge in Garland County. He was a member of the Arkansas Bar Association where he served on the House of Delegates and the Civil Procedure Committee. He was a Fellow of the Arkansas Bar Foundation.

William H. “Buddy” Sutton William H. “Buddy” Sutton of Little Rock, died July 2, 2015, at the age of 84. He was a long time practicing attorney in Little Rock with the Friday, Eldredge & Clark law firm. He was a graduate of Hope High School (1949), the University of Arkansas School of Business (1953) and the University of Arkansas School of Law (1959). He participated in athletics in high school and college and was selected as co-captain of the Razorback Football team in 1952. He was inducted into the Arkansas Sports Hall of Fame in 2001 and the U. of A. Hall of Honor in 2013. He served two years in the USAF before joining the law firm, with whom he practiced from 1959 to 2005 in full time service and thereafter, of counsel. He was a member of the Arkansas Bar Association and a Fellow of the Arkansas Bar Foundation, where he was awarded the Outstanding Lawyer of the Year Award in 1991. He was a member of the American College of Trial Lawyers. Upon the death of Hershel Friday in 1994, Sutton was elected Chairman of the Management Committee of Friday, Eldredge & Clark and served as Managing Partner until his retirement from active practice. He served as General Attorney, Arkansas for Union Pacific Railroad from 1994-2005.

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

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Watch for the 2015 Fall Desk Catalog in the mail soon

September 24: Assets in Unity: Marriage, Divorce and Planning Ahead October 1: Ethics: Marketing, Social Media or Online Presence October 2: Hot Legal Topics October 8: Article 9: What It Is, How to Use It and Updates on the New Rules October 23: Privacy Law October 29: Rock & Roll CLE October 30: Gun Trusts November 12: Human Trafficking November 13: Government Practice November 20: Fall Legal December 3: Defending DWI December 4: Elder Law