The Arkansas Lawyer Summer 2016

Lawyer The Arkansas

A publication of the Arkansas Bar Association

Vol. 51, No. 3, Summer 2016 online at www.arkbar.com

2016-2017 Arkansas Bar Association President Denise Reid Hoggard

ArkBar F A L L

2 0 1 6

C L E

September 15-16 Rogers Fall Legal Institute • Legislative Advocacy • FSLA Update: New Overtime Rule • Tech Law • Debtor/Creditor • Intellectual Property • Intellectual Property

September 16

Rogers Statewide Ethics Tour: AttPro Risk Management Sponsored by Stephens Insurance, Inc., LLC

September 23

Little Rock Current State of Healthcare Law in Arkansas

October 7

Little Rock Capital Raising Today: The Alternatives for Small and Closely Held Businesses

October 20

Little Rock & Fayetteville

Construction Law Handbook Review

November 9

October 28

Persuasive Strategies for Trial and Mediation

Little Rock

Jonesboro

17th Annual Government Practice Institute

November 9

October 31

Statewide Ethics Tour: AttPro Risk Management

Little Rock

Scariest Things You Don’t Know: Frighteningly Common Mistakes Lawyers Make

Jonesboro Sponsored by Stephens Insurance, Inc., LLC

November 10 Little Rock

Persuasive Strategies for Trial and Mediation

Watch for your NEW monthly brochures in the mail Register online and view agendas at www.arkbar.com

PUBLISHER Arkansas Bar Association Phone: (501) 375-4606 Fax: (501) 375-4901 www.arkbar.com EDITOR Anna K. Hubbard EXECUTIVE DIRECTOR Karen K. Hutchins EDITORIAL BOARD Anton Leo Janik, Jr., Chair Haley Heath Burks Judge Brandon J. Harrison Ashley Welch Hudson Jim L. Julian Philip E. Kaplan Tory Hodges Lewis Drake Mann Gordon S. Rather, Jr. Tasha C. Taylor David H. Williams OFFICERS President Denise Reid Hoggard Board of Governors Chair Brian M. Rosenthal President-Elect Anthony A. (Tony) Hilliard Immediate Past President Eddie H. Walker, Jr. Secretary F. Thomas Curry Treasurer Shaneen K. Sloan Parliamentarian Aaron Squyres Young Lawyers Section Chair Gregory Northen BOARD OF GOVERNORS James Paul Beachboard Arkie Byrd Thomas M. Carpenter Sterling Taylor Chaney Suzanne G. Clark Grant M. Cox Don R. Elliott Bob Estes Frances S. Fendler Buck C. Gibson Paul W. Keith Leslie J. Ligon Jerald Cliff McKinney Brandon K. Moffitt Wade T. Naramore Laura E. Partlow Kristin L. Pawlik Brant Perkins Colby T. Roe Robert M. Sexton Andrea Grimes Woods

LIAISON MEMBERS Brian M. Clary Karen K. Hutchins Matthew L. Fryar Judge Casey Jones Judge David F. Guthrie Jeffrey Ellis McKinley Stephen A. Hester Richard L. Ramsay Patti Julian

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

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

All rights reserved.

The Arkansas

Lawyer Vol. 51, No. 3

features

10 2016-2017 Arkansas Bar Association President Denise Reid Hoggard

By Anna Hubbard Cover photo by Michael Pirnique 14 Fees & Files Proposed Rule Changes By Stark Ligon 16 Handbook Review: Arkansas Construction Law Manual

By Richard C. Downing 18 Initiated Attack By Kristin L. Pawlik 22 The December 2015 Amendments to the Federal Discovery Rules

By Gary D. Marts, Jr. 26 An Introduction to the False Claims Act By David S. Mitchell, Jr. 34 Brothers-in-Law H. Thomas Johnson and George C. Watkins—The Second and Third Chief Justices of Arkansas By Judge J. W. Looney 36 Are You Subject to HIPAA? By Jenny Holt Teeter 42 Practice Tip: The Arkansas Supreme Court Clarifies the Final-Order Doctrine in Divorce Cases

By Martha Tucker Ayres 44 Book Review: Mass Communication Law in Arkansas

By Kathryn C. Fitzhugh Contents Continued on Page 2

Lawyer The Arkansas Vol. 51, No. 3

in this issue ArkBar News

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Arkansas Bar Foundation New President

15

Board of Governors and House of Delegates Report 20 Arkansas Bar Association Annual Meeting

30

Disciplinary Actions

49

Arkansas Bar Foundation Memorials and Honoraria

54

In Memoriam

55

Classified Advertising

56

columns President’s Report

7

Denise Reid Hoggard

Young Lawyers Section Report

9

Gregory J. Northen

The Arkansas

Lawyer A publication of the Arkansas Bar Association

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

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

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

Arkansas Bar Association

2224 Cottondale Lane, Little Rock, Arkansas 72202

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

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Vol. 51 No. 3/Summer 2016 The Arkansas Lawyer

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ArkBar News ArkBar 2016-2017 Committee Chairs

ArkBar 2016-2017 Section Chairs

President Denise Reid Hoggard 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.

Administrative Law: Drake Mann Agricultural Law: Matthew Vandiver Alternative Dispute Resolution: Cheryl Fisher Anderson Business Law: Grant M. Cox Civil Rights Law: Kat R. Hodge Construction Law: Richard C. Downing Corporate & In-House Counsel: Matthew David Mitchell Criminal Law: Pamela Epperson Panasiuk Debtor/Creditor: Linda C. McCormack Disability Law: Steven R. McNeely Elder Law: M. Gayle Corley Environmental Law: Deanna M. Ray Family Law: Megan Elizabeth Wooster Financial Institutions: William Lance Owens Government Practice: Lynne T. Ravellette Hispanic Lawyers: Nathan Randal Bogart Intellectual Property: Joseph Davidson Calhoun International & Immigration Law: Kathleen Marie McDonald Juvenile Justice & Child Welfare: William S. Robinson Labor & Employment: Mark Mayfield Natural Resources Law: James D. Rankin Probate & Trust: J. Nicholas Livers Real Estate Law: J. Cliff McKinney II Section of Taxation: Tiffany Parker Nutt Solo, Small Firm & Practice Management: William Phillips Allison Tort Law: Geoffrey Thompson Workers’ Compensation Law: Carol Worley

Annual Meeting Committee: Cynthia E. Nance and Abtin Mehdizadegan Arkansas Bar Commission on Diversity: Niki Trang Cung and Lee P. Rudofsky ArkBar PAC: Bob Estes Audit Committee: Joseph F. Kolb Continuing Legal Education Committee: Brian M. Clary Drafting Task Force: Jon B. Comstock Editorial Advisory Board - The Arkansas Lawyer: Anton Leo Janik Editorial Board for Handbooks: Caroline Curry Lewis and Stefan Kane McBride Finance Committee: Shaneen K. Sloan Futures Commission: Judge Audrey Evans Governance Committee: Suzanne G. Clark Investment Committee: Jennifer Wilson-Harvey Judiciary Committee: Richard F. Hatfield Jurisprudence and Law Reform Committee: Chad Pekron Law Related Education Committee: Beverly I. Brister Law School Committee: Harry A. Light Lawyers Assisting Military Personnel: Brenda Sue Simpson Lawyers Helping Lawyers Committee: Michael McCarty Harrison Leadership Academy Committee: Anthony A. Hilliard Legal Forms Committee: Carrie E. Bumgardner and Junius Bracy Cross Legislation Committee: Kristin L. Pawlik Member Benefits Committee: Christopher Wesley Burks Mock Trial Committee: Barrett Moore Past Presidents Committee: Charles L. Harwell Personnel Committee (Arkansas Bar Association): Mark W. Hodge Professional Ethics Committee: Brad L. Hendricks Prosecuting Attorneys Task Force: Larry Jegley and Charles Daniel Shue Social Media Committee: Jonathan Q. Warren Task Force on Dues: J. Cliff McKinney II Task Force on Maintaining a Fair and Impartial Judiciary: Jon B. Comstock Uniform Laws Committee: Brant Perkins and Elisa M. White Website/Technology Committee: Patrick Lewis Women in the Profession Committee: Heather Goodson Zachary Young Lawyers Section: Gregory J. Northen

https://www.arkbar.com/arkbardocs/home

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ArkBar News Oyez! Oyez!

Accolades Denise Reid Hoggard was recently inducted as a Fellow of the College of Labor and Employment Lawyers. Timothy W. Grooms was recently inducted into the National Association of REALTORS® Political Action Committee Hall of Fame.

Appointments and Elections Stacy Leeds has been reappointed for her second five-year term as dean of the University of Arkansas School of Law. Jerry Patterson has been appointed to the Arkansas Public Defender Commission. Robert L. Jones, III, of Conner & Winters, LLP, was recently elected 2016-2017 Secretary-Treasurer of the International Academy of Trial Lawyers. Janet L. Pulliam, of counsel with Mitchell Blackstock Ivers Sneddon & Marshall, has been named chair of the American Bar Association’s Breast Cancer Initiatives Executive Committee for 2016-2017.

Word About Town The law firm of Chisenhall, Nestrud and Julian recently merged with the Barber Law Firm in Little Rock. The Bailey & Oliver Law Firm in Rogers announced that Tyler Humphries has joined the firm as an associate. Madeline Moore has joined the Little Rock office of Cross Gunter Witherspoon & Galchus PC as an associate.

The law firm of Ball Corley PLLC of Little Rock announced that Jennifer E. Glover has joined the firm as an associate. Jean C. Block has joined Little Rock Wastewater as Chief Legal Officer. Conner & Winters, LLP, announced that Michael D. Sutton joined the firm’s Northwest Arkansas office. David S. Mitchell Jr. and Karen “Betsy” Turner have become members of the Rose Law Firm in Little Rock and Cynthia Blankenship and Jim Fowler have joined the firm as of counsel attorneys.

McMath Woods P.A. recently added John Coulter and Carter Stein as partners. The law firm of Robertson, Beasley & Shipley, PLLC announced that Christopher D. Brockett joined the firm.

Filing Petitions Due October 31, 2016 For 2018-2019 ArkBar President 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 designee will come from Bar District A. Nominating petitions must be filed with the secretary at the Association’s office no later than October 31, 2016.

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 2017 Annual Meeting in Hot Springs and will become the Association president in June of 2018.

Mock Trial Committee Releases New Video Lecture Series

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

Save the Date for the ArkBar Mid-Year Meeting February 15-17, 2017

The Arkansas Bar Association’s 2017 Mid-Year Meeting will once again be held at the Marriott Hotel in Little Rock February 15-17, 2017. The House of Delegates will meet on February 17, 2017. Watch arkbar.com/midyearmeeting/home for more details.

The Mock Trial Committee released a five-video lecture series made possible by funding from the Arkansas Chapter of the American Board of Trial Advocates (ABOTA). Teachers and students can use these 20 – 45 minute presentations to learn the Mock Trial Rules of Evidence, Opening Statements & Closing Arguments, Trial Themes, Cross Examinations, and Acting protocols. Visit http://www.arkbar.com/ armocktrial/resources/lectures for more to view the lectures and for information on volunteering.

Vol. 51 No. 3/Summer 2016 The Arkansas Lawyer

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The Arkansas Bar Association Meet the 2016-2017 Arkansas Bar Association Officers The Arkansas Bar Association began its 2016-2017 Bar year on July 1, 2016. President Denise Reid Hoggard and the other new officers welcome you and thank you for your membership.

The voice of the Arkansas lawyer

The Arkansas Bar Association is your statewide professional network—your connection to over 5,000 attorneys across the state.

President

President-Elect

Board of Governors Chair

Immediate Past-President

Denise Reid Hoggard Rainwater Holt & Sexton Little Rock

Anthony “Tony” A. Hilliard Ramsay, Bridgforth, Robinson and Raley LLP, Pine Bluff

Brian M. Rosenthal Rose Law Firm, Little Rock

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

Secretary

Treasurer

Parliamentarian

Young Lawyers Section Chair

Tom Curry McMillan, McCorkle, Curry & Bennington, LLP Arkadelphia 6

The Arkansas Lawyer

Aaron Squyres Shaneen K. Sloan Hyden, Miron & Foster, PLLC Wilson & Associates, PLLC Little Rock Little Rock

www.arkbar.com

Gregory J. Northen Cross, Gunter, Witherspoon & Galchus, P.C., Little Rock

PRESIDENT’S REPORT

Imagine the Possibilities Denise Reid Hoggard

One of my favorite stories from our family history comes from Grandma Estelle Hoggard who, when asked what was her secret to living to 104, replied “well, I guess just not dying.”

Prior to her death in 2003, we got her to talk about the changes she saw during her more than a century well-lived life, spanning two world wars, the Korean conflict, the Vietnam War, the Great Depression, and passage of the Civil Rights Act. The tape of that conversation is a family treasure.

I’ve practiced law since 1984 and although I’m not 104 yet, I have witnessed amazing change to the practice of law during my career. Before the advent of modern technology, we had “opportunity for mature reflection,” borrowing a phrase from U.S. District Judge Billy R. Wilson.

That resulted in an attorney taking time to ponder rather than react. If we were firing off an emotive response to an opposing counsel back in the early 80s, we had to dictate the missive, have it typed using carbon paper for copies, review the draft and correct it, and then place it in the U.S. Mail. It took hours and sometimes days to send off a simple letter. Harsh words rarely made it through the edits.

Our first facsimile machines used dot matrix printer technology, and folks would commonly turn off the annoying machines at 5 p.m. because the business day was over. Not true today. We have instantaneous communica-

tion and responses are as quickly sent as you can speak them into being—often without the opportunity for judgment tempered by the scholarly reflection we learned in school.

Civility is a touchstone of our profession. We have always fostered that collegiality in this small state by meeting regularly at the Arkansas Bar Association Annual and Mid-Year meetings where we learn, relax and share time together. Make sure to mark your calendar for both. The Mid-Year meeting is set for February 15-18, 2017, and the Annual Meeting takes place June 14-17, 2017.

Personal interaction is not only enjoyable, it is also effective. When attorneys are facing discovery disputes, face-to-face meetings frequently facilitate solutions. U.S. District Judge Price Marshall has been known to encourage lawyers to share a meal or sit down together over coffee to try to work out their differences. Past ArkBar President Eddie Walker pointed out to the University of Arkansas School of Law 2016 graduating class at commencement, that “today’s adversary might be tomorrow’s judge.”

The public and clients we serve are affected by technology, too. Attorneys are challenged with adapting their delivery of services in this environment. In his address about the state of the courts at the 2016 ArkBar Annual Meeting Chief Justice Howard Brill pointed out that Walmart is

bringing legal service outlets to its stores, though not yet here in Arkansas.

Amy Johnson, Executive Director of Access to Justice, has spent time in the Pulaski County Courthouse assisting pro se patrons. From that vantage point, it is clear to her that most people are going online to get information when they have legal problems and they are not connecting with lawyers in the process.

Mr. Walker also told the graduating class that their law degrees would open them to amazing and unimaginable opportunities. “Don’t let ‘what is’ cloud your vision of what could be,” he challenged the class. Part of the challenge is to grasp where technology has taken our profession and imagine where the practice of law will be in the coming decades. It takes the kind of imagination and creativity that was celebrated by Dr. Seuss in his book, “Oh the Thinks you can Think.”

It’s that kind of thinking that will come out of the 2020 Futures Commission which we are forming to take us into the next decade prepared to adapt to the pressures of this new landscape.

It will also help further ensure that our Arkansas Bar Association continues to be valuable and effective in serving its membership and fulfilling its role as the voice of the Arkansas lawyer.

We have a long tradition of serving as a trusted leader, advo-

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

cating for justice and providing for professional development.

The House of Delegates recently approved the ArkBar Strategic Plan, 2016-2019 which clearly identifies our five key areas of focus: Advocating Justice, Trusted Leader, Professional Excellence, Practice Viability, and Association Leadership. The revisions were developed by a diverse group of our leadership team.

The complete plan can be found at our website at Arkbar.com under our Governance tab. It is a framework for our Committee and Sections. The Board of Governors will use it to allocate resources to advance the areas of priority. With this tool, we will be better able to equip our members to deal with our changing environment.

It’s going to be a busy bar year and we want you to stay informed. Since technology is best when it brings people together, I hope you will follow me on Twitter at @ArkBar_Prez. Don’t have Twitter? Find us on Facebook and like the ArkBar page to stay connected or contact me via my Facebook page, Denise Reid Hoggard, where you can find a link to the Arkbar website.

We will also be sending updates through the Arkansas Bar Exchange (ACE) community open forum. 

Vol. 51 No. 3/Summer 2016 The Arkansas Lawyer

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YLS REPORT

Summertime Heat and Me

By Gregory J. Northen

I hate summer weather. Despise it. It’s scorching hot, sticky humid, the grass turns dry and crispy (or completely dead in my yard), and the seat belt buckle in my car burns my hand if I fail to grab it just right. Once the temperature gauge ticks into the 80 degrees, you won’t see me enjoying the outdoors (and indoors, at times, depending upon whether my wife or co-workers mess with the thermostat). Come the 90 degrees, I start planning my life activities around the position of the daytime sun, and 100+ degree temperatures make me consider sitting for the Alaska bar exam.

With the annual heat wave in full effect recently, I’ve had some time to plan the upcoming Bar year, and I hope you’ll take a minute to learn about the plans we have in store for the Young Lawyers Section (YLS) this year.

As I have been working on preparations as the new Chair of YLS (with the A/C on full blast), I realize the significance that working together has on reaching common goals. I believe this ideal to be especially true in an association such as ours where we are mostly membership-driven (albeit, only with the support and work of an excellent Bar staff!), and I want to take this opportunity to share some of the goals for YLS in 2016-17. Involvement by YLS members is critical in providing services to Arkansas citizens, fellow attorneys, and ourselves.

These programs and services, in turn, give back to us by providing opportunities to network, serve, and learn with others that we may not otherwise have available.

One theme that I want to encourage our Executive Council and all members of YLS to focus on this year is new programming ideas geared toward improving communication among current Section members. Most young lawyers are being constantly bombarded with 24/7 information, whether work-related emails, constant news cycles (is there an election coming up?), and social media thoughts/opinions/videos (is there an election coming up?) across numerous mobile apps and online platforms. My hope is to find ways to share the numerous opportunities and resources YLS offers its members in ways that will not be lost in all the “noise” transmitted via email today. Essentially, I hope to cut down on receiving the “unsubscribe” treatment that I so frequently submit to other organizations! The focus I want is on better communication—not more communication.

For instance, YLS is already working on creating a new monthly or quarterly Podcast focusing on YLS-centered topics. We also hope to provide YLS-focused resources for young litigants, transactional attorneys, and in-house counsel, including a skills program for taking and defending depositions. Finally, I

hope to work with our Section committees to create a new type of “local practice” handbook that contains not-so-easy-to-find information regarding local rules, court filing procedures, and other tips from experienced litigators around Arkansas. Certainly, other new programs may arise throughout the year, and some of these plans may fail to gain any real traction. If you would be interested in these, please reach out to a current YLS Executive Council member or Bar staff. I hope to provide an update once the new Executive Council has our upcoming annual planning meeting.

To be sure, our Section has had great successes under our past-Chair, Matt Fryar, as well as his predecessors. We have several tried-and-true programs and resources that have been greatly successful, including: •Pro bono opportunities for YLS members, including Wills for Heroes and an upcoming Expungement Clinic, among other opportunities.

•Citizenship education outreach programming, such as “Know Before You Owe” that informs high school students of the importance of managing higher education student loans and other debt counseling.

•Networking events for YLS members to meet other members of our Section as well as other young professional associations.

•A very helpful Domestic Vio-

Gregory J. Northen is the Chair of the Young Lawyers Section. He is an attorney with Cross, Gunter, Witherspoon & Galchus, P.C. in Little Rock.

lence Handbook, both for practicing attorneys and judicial officials, but also for citizens in need of legal guidance and assistance.

•YLS In-Brief, an award-winning publication for YLS members.

This list could undoubtedly go on as YLS’s schedule for 201617 will include several programs around the state. I do believe that we have an opportunity to examine and consider some of our ongoing projects and practices to help maximize the value of YLS to our Section’s membership, and suggestions are always welcome.

There are many benefits to being involved in our association and YLS. With improved communication among our Section, whether about ongoing service programs, new events and opportunities or other practical resources available to YLS members, I encourage us all to work collectively in making this year a successful year. So, whether you have been enjoying the outdoors the past few weeks (for whatever illogical reasons) or, like me, have been running back and forth between air conditioners, it is my sincere hope that you will join us in this effort. Either way, stay cool out there, friends…fall will be here soon. 

Vol. 51 No. 3/Summer 2016 The Arkansas Lawyer

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Denise Reid Hoggard 2016-2017 Arkansas Bar Association President

The Vision Denise Reid Hoggard has a vision for the Arkansas Bar Association and has lined up a stellar team of lawyers to help accomplish her goals for the year. There is no room on the team for those who want to sit on the sidelines.

If you accepted an appointment from Denise, you know that you are expected to give your all—and with a smile—just like she does.

“The job is what we make it,” Denise told Heather Zachary over the phone when asking her to chair the Women in the Profession Committee. “We create that job by having a vision. We have to be the leadership on it.”

While there is room for everyone on the team, Denise is eager to get you in the game.

One of the greatest benefits of being a member of the bar association is the value of the relationships formed by working with other lawyers on committees, sections and governing bodies. Denise recalls being welcomed into the association and coming to feel like part of the group. “The bar association invests in our leadership, but it also cares about Arkansas lawyers who are out there trying in whatever area they are in. The bar association puts an arm around you and brings you in. ” Denise said she believes that personally encouraging someone to volunteer is important. “I have found every time we call and ask someone to do something, they do it. Our profession is a giving profession. We take it seriously that we give back to our community.

That oath we take really means something.

And sometimes we just need to be directed.

Hey, here’s where the need is, and once you ask, our bar members are fantastic about saying yes.”

Heather Zachary appreciates the encouragement and support from Denise. “The thing that makes Denise such an amazing leader is that she has this wonderful ability to inspire people and push them far beyond their normal 10

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Article by Anna Hubbard Photo by Michael Pirnique

Denise Reid Hoggard of Little Rock was sworn in as the 119th president of the Arkansas Bar Association on June 17, 2016. Chief Justice Howard Brill administered the oath during the swearing-in ceremony at the Association’s Annual Meeting in Hot Springs.

comfort zone in search of a common goal,” Heather said. “You may not feel like you are capable of greatness on your own, but after a few minutes with Denise you will not only believe you can do it but you will have a plan for how to make it happen.”

Denise is recognized as one of the leading employment lawyers in Arkansas and for being relentless in pursuit of fair results for her clients. The Arkansas Bar Association will be well served having Denise as its advocate. She is on task to lead the association with as much passion and intention as she served her clients.

Denise is focused on the success and growth of the association and on advancing the goals of the association’s recently revised Strategic Plan for 2016-2019.

“I realize that I am in a position of leadership for the association. It’s not about what I want to do this year; it’s not about me as a president and what my interests are. It’s my year to serve advancing the association’s goals.”

Dr. Casey Rockwell first met Denise when she taught her a Lawyering Skills course at the UALR Law School and considers Denise her mentor. “Denise challenged you to be an advocate for not only your client, but also for the profession. She said that we must all strive to put forth our very best so that our clients know the high regard in which we hold the profession.”

“Denise cannot ever be said to take the easy road, Casey added. “As a plaintiff’s attorney, I have watched her work tirelessly for her clients who, without her, may be denied access to justice. She does this because she is guided by a strong moral compass that always points her in the direction of justice. Now, at the helm of the Arkansas Bar Association, Denise is modeling those very characteristics that I have respected by promoting an agenda of inclusiveness, creativity, and forward thought.”

During Denise’s swearing-in ceremony, she

addressed the importance of strength in unity.

“We are all bound together as officers of the court, and our highest calling is to ensure Arkansans have access to justice in fair and impartial courts.”

“Just like I didn’t get here alone, I cannot accomplish my goals alone,” she added. “I need the help of you all, the bar association members. I need you to recruit others and spread the word about our great resources. You are advocates by trade, so I know you can be advocates for the bar association.”

Supporting the bar association is an important issue during this time of competing CLE and the rising costs of operating the Arkansas Bar Center.

“Be loyal to the Arkansas Bar Association,” she said. “When you spend your CLE budget or purchase your legal malpractice insurance, or legal research tools, be sure you do that through the Arkansas Bar Association. We use the proceeds for your benefit by pouring those funds directly back into our profession and state.”

Advocating for Justice Shortly following the swearing-in ceremony, Denise joined association leaders at the House of Delegates meeting for a highly-debated vote on the report from the Task Force on Maintaining a Fair and Impartial Judiciary.

The task force was formed in January 2016 as part of the association’s mission to advocate for justice by promoting access to a fair and impartial system of justice. 20152016 President Eddie Walker, Jr., appointed the 16-member task force that included two Arkansas Judicial Council members and was chaired by Jon Comstock. The group spent over four months analyzing issues affecting our system of justice and made recommendations for improving the public’s confidence in the judicial process. The House of Delegates voted

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made up of lawyers from diverse walks of life and from diverse practice areas and perspectives. We have an interest as an association in shaping and affecting the laws so that they provide justice for all. That’s our goal—to accomplish justice.”

From top: Denise and Glen; Hank, Hal and Glen Hoggard to approve the task force’s recommendations, which included choosing Supreme Court justices through appointment versus elections and supporting the passage of laws to “mitigate the perceived adverse impact of dark money on the ability of the judiciary to remain fair and impartial, and on the public confidence that its judiciary remains fair and impartial.”

Denise said that she was extremely proud of the task force and the leadership they showed in advocating for justice. “We are leaders in this area,” she said. “We are not always going to agree. We had the best and brightest minds come together to try and find the best answers to advance our main goal of a fair and impartial judiciary that protects the people in the state of Arkansas.”

Staying in line with the bar association’s mission of advocating justice, Denise supports efforts to partner with Arkansas Access to Justice to help meet the needs of the people in Arkansas. The bar association is currently working in collaboration with Access to Justice on new technology that will allow attorneys to provide pro bono services online.

“Access to justice is a very key component of what we do. We have taken an oath to provide services without regard to whether or not folks can pay for them. There aren’t very many other professions that make sure you provide services free of charge. It is part of our responsibility.”

“It is also part of our responsibility to help shape the law,” she added. “Our association is 12

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Professional Excellence One of the bar association’s goals is to provide education and resources to support bar excellence. Denise is excellence driven, a trait she said she learned early on from her father who served in the United States Air Force with tours in Korea and Vietnam.

“I am a product of a military family where I learned firsthand the importance of serving and protecting others. I consider it a privilege to be an attorney and an honor to serve our association.”

Over her 30-plus-year career, Denise has had the opportunity to work with and learn from lawyers who share her goal of excellence. Her first job was at the Little Rock City Attorney’s, clerking for Carolyn Witherspoon, who served as the association’s first female president. Following graduation from law school, Carolyn led her to work with Janet Pulliam, a solo practitioner working in employment and school law cases. While working with Janet, she had the unique opportunity of spending five months in a courtroom in Rockford, Illinois, in a school desegregation case.

“It is difficult to achieve excellence if excellence is not your goal,” Denise said. “I clearly remember the day when Janet said to me that her goal was to be the very best at what she did. That anything less was a failure. Like her, my clients deserve my very best. Just like my association deserves my very best.”

Denise briefly lived in Houston, Texas, where she established a solo practice and received a Texas law license while her husband Glen worked in the petroleum market. During that time, she was forced to take a brief break in her practice when she was ordered on bed rest with her second son Hal. Her oldest son Hank was two at the time. This did not slow her down for long. She moved back to Arkansas and began work with Janet again, who was extremely accommodating to a new nursing mother.

“It wasn’t that long ago that we were still trying to figure out as women in the profession exactly how to merge while having babies and still having an active full-time practice,” Denise said. “Janet was so accommodating that she allowed me to bring Hal to the office. Not very many people would allow you to bring your baby to the office. I was blessed.”

Denise experienced many of the challenges

that can affect women in the profession including moving to follow her husband, medical complications with pregnancy that interrupted her practice, and relocating and coming back to a small practice with young children.

In addition to working with Carolyn Witherspoon, Denise has worked with two more bar presidents during their years of service.

Following her practice with Janet, Denise started a solo practice and began working with Past President Bob Cearley. From there she worked with Past President Jim Julian at Chisenhall, Nestrud and Julian for over a decade.

“Bob Cearley and Jim Julian inspired me in my professional life,” Denise said. “They encouraged me and were true role models. I wanted to be around lawyers who made me better, who inspire me to do better, and I’ve been blessed to do that all the way through my career.”

Jim Julian spoke to Denise’s reputation for excellence. “Denise is a smart, diligent lawyer with a great work ethic. She was a pleasure to work with when we were partners. Denise has a unique approach to problem solving that will serve her well as president of the association.

Denise has been very active in the association for a number of years, including her work on the Personnel Committee. She will do an outstanding job as president of the association.”

The bar association has benefited from Denise’s vast knowledge of employment law.

She regularly presents CLE seminars for the bar association’s Labor and Employment Law section and received a Golden Gavel award for her service as chair of the Personnel Committee for four years. Denise has devoted her time and resources to the bar association by also serving on the Board of Governors, as chair of the Women in the Profession Committee for three years, and as a member of the Judiciary, Law School, Long Range Planning, and Leadership Academy Committees as well as the Committee for a Modern Judiciary.

In additions, she has served as president and board member of the Arkansas Association of Women Lawyers and is a Fellow of the College of Labor and Employment Lawyers.

Denise was selected by Arkansas senators Blanche Lincoln and Mark Pryor for referral to President Obama for nomination as a United States District Judge in 2009. In 2011, President Obama declined any of the three people referred from Arkansas.

Denise, who is the fifth woman president of the association, feels strongly about giving back to all the women who paved the way before her and to the bar leaders who welcomed her and mentored her.

“I received the benefit of the work of the

from left: Denise with her family at the swearing-in ceremony; Denise and Glen Hoggard, Chief Justice Howard Brill at the ceremony women who came before me,” Denise said.

“I was mentored right out of the door starting with Carolyn Witherspoon and then by Janet Pulliam. Those folks opened doors for me, and I always felt like it was my responsibility to do the same for others. It is up to us to make sure that those doors stay open.”

Denise remembers being referred to as a “Girl Friday” in the courtroom and not being trusted on her counsel because she was a woman.

“Members of the legal profession are leaders in getting society to address issues important to working women: the importance of the family unit and childcare, looking at the family unit from the perspective of the individual, and realizing that the definition of a family unit means different things to different people.”

“There is still a socialization process that places women in our society in the primary role of nurturing young children. We can overcome obstacles by working with folks who are supportive of our profession and who are willing to work with us. Throughout my career my male colleagues have treated me as though I am a lawyer first and a women second.

And that is what I hope for everyone: we are lawyers, that’s our common bond, that’s our profession. And the fact that we are women is a secondary issue.”

Denise’s vast experience with discrimination law in the workplace in addition to her own personal experiences make her an expert in understanding issues confronting women in the workplace. She has been involved in cases that have made law in Arkansas. Denise recalls a memorable case that she tried in front of U.S. District Judge Elsijane Roy, who was the first female federal district judge appointed in Arkansas.

“When you get to argue a gender discrimination case in front of the only woman judge at the time, and the first one, then it shapes your career, or your outlook,” Denise said.

Telling the Story Denise decided she wanted to go to law school while working as a reporter for the Arkansas Democrat newspaper after graduating from Arkansas State University with a degree in journalism. Her assignment on the police and court beat took her into courtrooms where she became interested in the law. Her journalism background proved to be helpful in her career.

“From my perspective, one of the things that makes lawyers so valuable in the system of justice is that we are able to tell the story for and speak for our clients,” Denise said.

Denise continued to work as a reporter during law school. She said her editor at the time, John Robert Starr, told her that he was willing to work with her while she went to law school because he knew she would do the work. “In the legal profession people see that we are the ones who will do the work,” Denise said. “We apply ourselves and do the work.”

Denise is an adjunct professor at the UALR Bowen School of Law and taught for over a decade at Webster University in its master’s program where she developed a curriculum on the legal aspects of managing a work force. “I always encourage students to hone their effective communication skills, because it makes us better able to advocate for others,” she said.

Denise and her husband of 34 years, Glen, as well as their two sons, Hank (27) and Hal (23) are proud to call Arkansas their home.

Following graduation from Arkansas State University, Denise attended the University of Arkansas at Fayetteville School of Law and graduated from the University of Arkansas at Little Rock School of Law in 1983. “The people of the state of Arkansas have invested in me and it’s my job now to give it back,” Denise said.

While employment law is still Denise’s specialty, Denise has refocused her practice from

employment law to personal injury law since joining the Rainwater, Holt & Sexton firm in 2013. Being the second-most senior member in the firm, she has the opportunity to be a mentor and leader.

“The firm provides me an opportunity to be that leader for others to look up to,” Denise said. “I mentor and have a role to younger lawyers to help develop them professionally and to help develop them in their acts of service as well.”

Experts In addition to working cooperatively with the courts about the fair administration of justice, the bar association is committed to being a resource to the governor and the legislature.

She has appointed experts from both law schools who will work with the association’s legislation committee and lobbyist to help provide guidance and assistance to the legislature on how to improve the quality of law.

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

Denise also appointed a Futures 2020 Commission, which will look at ways to diversify our revenue sources and further prepare our profession for competing in the current global, tech driven environment.

Denise concluded her swearing-in speech with the following reminder to association members: “We must all be guardians of justice for the people of this great state we serve. Be faithful to your association and be active in advancing its mission. Together we are the voice of the Arkansas lawyer advocating for the state.” 

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Fees & Files Proposed Rule Changes

“I NEED TO SPEAK WITH A LAWYER!”

By Stark Ligon In June the Arkansas Supreme Court put out for comment two proposed rules of professional conduct, dealing with the client file and attorney’s fees, that will impact almost ever practicing lawyer. Both proposals were submitted to the Court by the Committee on Professional Conduct. Comments on both proposals are due to the Supreme Court Clerk by September 1.

By a per curiam issued June 2, at 2016 Ark. 240, a new proposed Rule 1.19 addresses the definition of the client file, file retention and destruction requirements, and the duties and financial obligations of attorney and client or former client related to copying and delivery of the file. This detailed new rule will supplant the current Rule 1.16(d) which gives little guidance in the area. Given a choice between the two most common approaches nationwide to defining the client file, the Court proposes an “end product” approach, which lists and defines certain types of documents the attorney is not normally to be required to provide to the client or former client. This category will generally include attorney notes, document drafts, and legal research materials. Copying costs will generally be borne by the client. The attorney and client may allocate the responsibilities for copy and delivery costs between them by a written agreement made during the representation.

The general rule on file retention will be five years from the conclusion of representation in a matter. There are notice requirements to the client or former client before a file can be destroyed, but these can be addressed in an engagement agreement or termination of representation letter. A new provision would require that a file be kept for the life of the client in criminal matters where the client received a sentence of death, life without parole, or for natural life, but the file could be turned over to a permanent centralfile repository. A new comment to the Rule reminds lawyers that Arkansas has no statute of limitations barring the filing of an attorney 14

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discipline complaint. The rule also cross-references new Ark. R. App. P.–Crim. Rule 19, adopted March 31, 2016, at 2016 Ark. 145, dealing with requests by convicted offenders for appellate case file documents and briefs.

By a per curiam issued June 23, at 2016 Ark. 286, a revised proposed Rule 1.5 addresses and defines attorney’s fees and significantly broadens the circumstances in which a written fee agreement shall be required. Present Rule 1.5(b) only requires a written fee agreement if the fee is contingent. The new rule would require a written fee agreement if the total fee in the matter is likely to exceed $1,000 or the retainer is in excess of $1,000. Frankly, this is an effort to encourage and require wider use of written fee agreements, for the protection of both client and attorney, and to reduce misunderstanding that is often present in complaints to the Office of Professional Conduct and in files before the Committee on Professional Conduct. Many states require written fee agreements along the lines set out here. The proposed definitions are designed to help clarify, educate, and standardize the use of terms such as “retainer,” “advance fee,” “flat fee,” and “nonrefundable retainer” that are often loosely used. There are some new default “presumptions” about the characterization of funds received by lawyers.

This is your chance to have input on rules that will impact your practice almost daily.

It is difficult to get rules where “one size fits all [practices]” right. Let the Court hear from you. 

Stark Ligon is the Director of the Supreme Court Office of Professional Conduct.

Hundreds of calls like this are referred to ARKANSAS FIND A LAWYER each week.

If you are not on the list— you should be. Only $75/ year. Subscribe today at ARKANSASFINDALAWYER.com Connecting clients and lawyers

Jeffrey McKinley Elected Arkansas Bar Foundation President Jeffrey McKinley is President of the Arkansas Bar Foundation Board of Directors for the 2016-17 bar year. A graduate of Cottey College and the University of Arkansas School of Law, Jeffrey practiced in Batesville and in Little Rock with the firm of H. William Allen and the Offices of Chapter 13 Trustees.

Jeffrey’s involvement with bar-related activities is vast. She has been a Fellow of the Arkansas Bar Foundation since 1995 and is a Sustaining Fellow. Jeffrey has served the Foundation as a member on the Board of Directors, as Secretary-Treasurer and Vice President, Chair of the Trust Committee and member of the Special Projects and Investment Committees. She has served the Arkansas Bar Association as Chair of the CLE Committee, Membership Committee, 2007 Annual Meeting, and a member of the Finance Committee, House of Delegates and the Board of Governors.

Active in her community, she is currently Chair of the State Membership Committee of P.E.O. (Philanthropic Educational Organization). She is a Life Member of Junior Auxiliary, previously served on the Phillips County Community College DeWitt Campus Board of Directors, and is a Master Gardener of Pulaski County. She and her husband Lester call Little Rock and DeWitt home.

Jeffrey’s theme for the Foundation this year is “A Celebration of Excellence and Tradition.” You can visit the Foundation’s website at www.arkansasbarfoundation.com.

Also, please like the Foundation on Facebook.

She shares these comments: “It is a privilege to serve as President of the Foundation. Fellows’ contributions enable us to award scholarships and professorships and provide charitable funds for important lawrelated projects of interest to the profession and the community. Supporting the Foundation and such legal projects in our communities sends a positive and empowering message about our system of justice.”

Vol. 51 No. 3/Summer 2016 The Arkansas Lawyer

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handbook review

Arkansas Construction Law Manual 2016 Edition Review by Richard C. Downing For any lawyer handling a construction claim or reviewing or negotiating a construction contract, whether it concerns a home remodel, new home construction or a surety bonded, million-dollar commercial/public building project, this newly published manual will be an essential research book. It is a “must have” for a lawyer’s library—whether in electronic or paper form—at the sale price of $175.00. Eighteen months ago, the Construction Law Section of the Arkansas Bar Association voted to take on the ambitious task of authoring a thorough survey of Arkansas construction law. Seventeen authors and three editors have diligently prepared a manual containing 14 separately titled chapters, each discussing a different construction law topic.

This book will be valuable both to lawyers with limited experience in handling construction matters and to seasoned construction law specialists. Lawyers looking for an introduction to this highly specialized area of practice will benefit from the breadth of coverage given to the fundamentals of both construction law and construction industry customs and practices. They will also be pleased to have advice from Arkansas construction law experts on many practical points. Experienced construction lawyers will be delighted to finally have a resource that discusses in detail the nuances of Arkansas law on such esoteric topics as licensing, bidding, bonds, liens, damages, and public contracts, along with extensive citations and discussions of the Arkansas statutes and cases relating to each of the topics the manual covers.

ArkAnsAs construction LAw mAnuAL 2016 Edition

ArkAnsAs BAr AssociAtion

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Cyril Hollingsworth, in his Introduction, acquaints the reader with different construction terms and concepts, describes the construction industry players, process, and relationships, and ends with an overview of the manual’s topics. As noted

by Mr. Hollingsworth, the book follows the sequence of the construction process from Contractor Licensing Requirements (Chapter 2) through Professional Liability (Chapter 14). Each chapter contains a separate table of contents and numerous case and statutory citations.

Within this sequence, after a discussion of Arkansas contractor licensing in Chapter 2, Chapter 3 describes the construction bidding process followed by a discussion of the law relating to surety bonds in Chapter 4. Chapter 5 gives an important discussion regarding insurance—policies and coverages. The next chapters review the prevalent problems caused by construction change orders and project delays (Chapters 6 and 7), both of which often result in contract claims and damages, the topics of Chapters 8 and 9.

Chapter 10 analyzes Arkansas law regarding mechanic and materialman’s liens. The Chapter succinctly points out the perilous statutory provisions whose procedural intricacies and strict construction often lead to the loss of a lien and dismissal of a claim and navigates the reader past the pitfalls found in the lien statutes, Ark. Code Ann. §§ 18-44-101 through 135, and a very recent Supreme Court decision.

Chapter 11 explains the big differences between the statute of repose and the statute of limitations and the applications of each.

Next, Chapter 12 examines alternative dispute resolution clauses often included in standard construction contracts.

The final two chapters, Public Contracts and Professional Liability (Chapters 13 and

14), provide analysis and insight regarding Arkansas public contracts and the professional responsibilities and liabilities of architects, engineers and construction supervisors. Like all states, Arkansas’ public contracts are, in many respects, creatures of statutes such as Arkansas Highway Department contracts which incorporate numerous standard specifications. The evolving and complex area of professional liability, often discernible only through a close reading of case law and contractual provisions, is explored in depth in Chapter 14.

Again, the cost of the manual, in either electronic or paper form, is $175.00. It is available through the Arkansas Bar Association. The authors, each an expert in the area of construction law, are: Cyril Hollingsworth, Elizabeth Luckadoo, Jack East, David Grace, Don Overton, Ashlea Brown, Jeff Moore, John Scott, Jeff Puryear, Dennis Zolpher, J.B. Cross, David Jones, Allen Dobson, Jeff Swann, Patrick Wilson, Andrea Woods, Professor Carl Circo and David Gershner. The excellent editorial staff, without whose efforts the book would have not been written in such excellent fashion, are David Powell, Dewey Watson and Professor Carl Circo. The unselfish efforts of these individuals made this manual a real resource gem. If you have a construction law issue, you will need this book. I am proud to be a small part of this wonderful collaborative effort and able to present it to you.  Richard C. Downing is an attorney with James, House & Downing in Little Rock and is Chair of the Construction Law Section.

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Vol. 51 No. 3/Summer 2016 The Arkansas Lawyer 17 THE JURY TRIAL

Initiated Attack

By Kristin L. Pawlik

As the trusted leader of the legal profession in Arkansas, your Arkansas Bar Association is actively opposing the proposed Constitutional amendment entitled “An Amendment to Limit Attorney Contingency Fees and Non-Economic Damages in Medical Lawsuits.” This amendment will adversely affect the administration of justice and the practice of law.

The mission statement of the Arkansas Bar Association proclaims that we, as members and the association as a whole, work to Advocate Justice by: • Leading efforts to maintain a fair and impartial judiciary; • Supporting efforts to provide access to justice by persons with limited means; and • Promoting fairness and equality in the application of justice.

With the mission in mind, the members of the Legislation Committee evaluate each piece of legislation proposed to the General Assembly. During the interim we study the various ballot initiatives, including proposed amendments to the Constitution of the State of Arkansas.

The Committee has reviewed and studied the proposed ballot initiative known originally by the popular name, “The Lawsuit Reform Amendment of 2016.” A review of the initiative by Attorney General Leslie Rutledge determined that the popular name was “partisan,” citing case law which identified language as “tinged with partisan coloring” as that which “gives the voter only the impression that the proponents of the proposed amendment wish to convey of the activity represented by the words,”1 and instead substituted “a more suitable, complete and correct popular name.” The proposed measure is now known as “An Amendment to Limit Attorney Contingency Fees and Non-Economic Damages in Medical Lawsuits.”

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Proponents of this Amendment, including Health Care Access for Arkansans—a group whose name is “tinged with partisan color” and funded, for the most part, by a $250,000 contribution from the nursing home industry’s lobbying group—have announced that they’ve obtained the magic number of signatures needed to gain a coveted spot on the November ballot.2 That the leading proponent of the measure is capable and willing to spend millions to try to limit his liability for the negligent treatment of patients in his nursing homes is well-documented,3 as are his failed attempts at convincing our elected legislators to assist him, whether in the backroom or on the floor of the General Assembly.4 Your Bar is an association of 5,600 lawyers statewide who represent individuals, companies, municipalities, and regulatory bodies when they sue or are sued. Our interests are broad and varied in practice, but our mission unites us. Sixteen years ago, your Arkansas Bar Association and its individual members fought hard for Amendment 80, which conferred to the Arkansas Supreme Court the exclusive power to set rules, practices, and procedures for all of the courts and reaffirmed our commitment to preserving the right to trial by jury.5 Efforts to remove this authority, to limit it, or to make it subject to legislative approval have historically failed.6 The House of Delegates is the policymaking body of the Association, and its members are elected from every geographical district in this state. It is comprised of all manner of practitioners: plaintiffs’ lawyers, defense counsel, judges, in-house counsel, government attorneys and private business owners. On June 17, 2016, the House unanimously voted to accept the Legislation Committee’s recommendation that we, as an Association, fight and oppose this initi-

ated measure. This vote is a clear call to the membership that we must engage in vigorous efforts to oppose this measure.

Here’s why: The proposed amendment specifically prohibits the practice of contracting for or charging “excessive” contingency fees by lawyers who represent people seeking damages in an action for medical injury against a health-care provider. Proponents say this measure would keep lawyers from taking advantage of clients. Our Rules of Professional Conduct already require us to charge only reasonable fees.7 Contingency contracts are a tool of fair play, a means to allow those who have little or nothing beyond the damages they’ve suffered as a result of someone else’s conduct or omission to access the judicial system, and our profession demands that those contracts be reasonable. However, “excessive” is defined by this measure as any fee greater than 331/3% of the amount recovered. This limit is the same whether the case results in a settlement, arbitrated agreement, or jury verdict. Lawyers who have prosecuted or defended medical injury cases understand the complexity required in researching, preparing, and trying these difficult actions.

Limiting the contingency fee to 331/3% will restrict the number of qualified attorneys willing to represent the injured. But that’s precisely the point of the measure. Under this amendment, a lawyer would be proKristin L. Pawlik is the Chair of the ArkBar Legislation Committee and is an attorney with Keith, Miller, Butler, Schneider & Pawlik PLLC.

hibited from entering into a contract with a client with a fee greater than 33 1/3% of the recovery. In fact, the measure authorizes the legislature to enact laws to enforce this limit and to provide for consequences and penalties against attorneys who contract for more than 33 1/3% of a recovery.

There is no limit to fees charged by the health care provider’s lawyer. There is no limit to the number of lawyers or law firms the nursing home may hire to defend against the lawsuit.

Removing a lawyer’s ability to contract with the client for a reasonable fee is only one prong of the attack. This Amendment would also restrict non-economic damages—those meant to compensate victims for trauma, disfigurement, and pain and suffering—to $250,000.00. The proposal mandates that the legislature enact a cap on these damages in the 2017 Regular Session. This means that no matter how horrific the injury, no matter how prolonged the suffering, no matter how preventable the death, the health care provider is out at $250,000.00 a pop.

If the injured person is, say, elderly, frail, and dies because of an injury in the nursing home, economic damages don’t factor in.

Similarly, if the injured person is a young child, poor, disabled, a homemaker—the worth of their claim is limited to the cap.

And there’s evidence that these types of limits on damages affect women more than men. The injuries that women suffer—loss or limitation of fertility, complications of pregnancy, reproductive harm—can’t be measured in economic terms.8 Overall, men tend to be awarded a greater total recovery, but juries consistently return verdicts which award more non-economic damages to women than men.9 Further, non-economic damages make up a higher percentage of the total recovery for women than for men. The limit on contingency fees becomes exponentially more restrictive for these folks, as the limited recovery makes it even more difficult for injured people with meritorious cases to convince a lawyer to file. Citizens whose access to justice is already historically limited can expect the courtroom door to slam in their faces if this measure is successful.

The American Bar Association has studied these issues and predicts the same outcome.

The appointed Task Force on Contingencies studied similar provisions to cap attorney fees and damage awards. It found that these provisions were not about making sure there

On June 17, 2016, the House of Delegates unanimously voted to accept the Legislation Committee’s recommendation that we, as an Association, fight and oppose “An Amendment to Limit Attorney Contingency Fees and NonEconomic Damages in Medical Lawsuits.” was justice in the outcome, but rather were about creating an un-level playing field.10 If this Amendment passes, the playing field will be a mountainside, with the nursing home owners a couple hundred feet up, kicking rocks down at the patients below.

Article 2, Section 7 of the Constitution of the State of Arkansas promises that “the right of trial by jury shall remain inviolate, and shall extend to all cases at law, without regard to the amount in controversy.”

Though the proponents have included specific language that “this amendment does not supersede or amend the right to trial by jury,” it most assuredly does.

This proposal will limit the access of injured people of lesser means, women, the elderly and the disabled to the court system and to the right to trial by jury.

Join your trusted leadership, your delegates, and your fellow members as we advocate against this initiated attack on the Arkansas Constitution, our fair system of justice and equal access to the courts.

Endnotes: 1. See Crochet v. Priest, 326 Ark. 338, 347, 931 S.W.2d 128, 133 (1996); Christian Civic Action Committee v. McCuen, 318 Ark. 241, 249, 884 S.W.2d 605, 610 (1994).

2. Andrew DeMillo, Hundreds Paid to Gather Signatures for Arkansas Initiatives, AP (July 3, 2016), available at http://m. apnews.com/ap/db_268748/contentdetail. htm?contentguid=eAiuRz4M. Brian Fanney, As Arkansas Petitions Flow in, 50 Pore Over Names, Ark. DemocratGazette (July 3, 2016), available at http:// www.arkansasonline.com/news/2016/ jul/03/petitions-flow-50-pore-over-names/.

Debra Hale-Shelton, Full Depositions Filed in Effort to Keep Lawsuit against Morton, Baker Alive, Ark. DemocratGazette (June 29, 2016), available at http://www.arkansasonline.com/news/2016/ jun/29/full-depositions-filed-effort-keep-

lawsuit-against/.

Mark Friedman, Nursing Home King Michael Morton Expanding his Empire, Ark. Business (March 16, 2015), available at http://www.arkansasbusiness.com/ article/103945/nursing-home-king-michaelmorton-expanding-his-empire.

Mark Friedman, Nursing Home Magnate Michael Morton Considered a Top Political Donor, Ark. Democrat-Gazette (March 16, 2015), available at http://www.arkansasbusiness.com/article/103947/nursing-homemagnate-michael-morton-considered-a-toppolitical-donor.

4. Debra Hale-Shelton, Checks at Center of Filing in Lawsuit; Lobbyist Admits He Changed Date, Ark. Democrat-Gazette (June 30, 2016), available at http://www. arkansasonline.com/news/2016/jun/30/ checks-at-center-of-filings-in-lawsuit--1/.

5. Ark. Const. amend. 80 § 3.

6. See, e.g., S.J. Res. 5, 89th Gen. Assemb., Reg. Sess. (Ark. 2013); S.J. Res. 6, 89th Gen. Assemb., Reg. Sess. (Ark. 2013); see also Bayer CropScience LP v. Schafer, 2011 Ark. 518, 385 S.W.3d 822 (invalidating Ark. Code Ann. § 16-55-208 under Ark. Const. art. 5 § 32).

7. Ark. R. Prof’l Conduct 1.5.

8. Nora Caplan-Bricker, A Stark Ohio Case Shows How Tort Reform Harms Victims of Sexual Assault, Slate (March 28, 2016), available at http://www.slate.com/articles/ double_x/doublex/2016/03/tort_reform_ harms_victims_of_sexual_assault.html.

9. Lucinda Finley, The Hidden Victims of Tort Reform: Women, Children, and the Elderly, 53 Emory L. J. 1263 (2004), available at http://papers.ssrn.com/sol3/papers. cfm?abstract_id=898863.

10. See American Bar Association Governmental Affairs Office, Understanding the Real Life Issues Underlying Tort Reform Proposals, ABA (2011), available at https:// www.americanbar.org/content/dam/aba/ images/medical_liability/Understanding_ Tort_Reform_Proposals.pdf.

Vol. 51 No. 3/Summer 2016 The Arkansas Lawyer

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Report from the April 2016 Board of Governors Meeting and the June 2016 House of Delegates Meeting

By Karen K. Hutchins The Association’s Board of Governors met April 22 & 23, 2016, in Fort Smith.

The Board approved two recommendations to the House including the 2016– 2019 Strategic Plan and revisions to the Association’s Constitution & By-Laws modifying the tellers/witness process for elections to match current practice with electronic voting. The Board also approved the Association’s budget reflecting a decrease in revenue directly related to the decline in CLE-related income. Outgoing Board Chair Scott Zuerker was recognized for his service as were the governors whose terms had ended.

President Eddie Walker convened the House of Delegates on June 17 during the Association’s Annual Meeting in Hot Springs. President-Elect Denise Reid Hoggard presented to the House the Board’s recommendations that the House adopt the 2016–2019 Strategic Plan and the Constitutional modification to the teller/ witness process for elections. Both recommendations were approved by the House.

The House also approved a bylaw change to add a recusal provision for members of the Legislation Committee to address situations where conflicts of interest could result in the need for a member to recuse from voting.

The Taskforce on Maintaining a Fair and Impartial Judiciary Chair Jon Comstock presented its report and recommended changes to the Arkansas Constitution to provide for the selection of justices to the Supreme Court through a nominating commission/appointment process (commonly referred to as “merit selection”), replacing the current non-partisan election process.

The five resolutions contained in the report provide the guidelines to initiate this process. Resolution No. 3 specifically states, “The House of Delegates directs that a petition be filed on behalf of the Arkansas Bar Association with the Arkansas Supreme Court stating that the attached proposed 20

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amendments to the Rules, Canons and Code, as drafted by the Task Force, are (a) illustrative of amendments appropriate to maintain a fair and impartial judiciary, and (b) appropriate to be considered by the standing committees of the Arkansas Supreme Court that study, address and obtain public comment on such proposed amendments.”

Additionally, Resolution No. 3 states that the legislation and constitutional amendment proposed by the drafting committee shall be considered by the House of Delegates at a regular meeting or special meeting after notice to the membership as required by the Constitution of the Arkansas Bar Association, Article XIV. The last petition filed by the Association, In Re: Arkansas Bar Association Petition to Amend Rules 1.2, 4.2, and 4.3 of the Arkansas Rules of Professional Conduct, was adopted May 12, 2016.

Jurisprudence and Law Reform Committee Chair Brandon Moffitt proposed seven bills for inclusion in the Association’s 2017 Legislative Package.

Ultimately, five bills were approved to be included. They are: An Act to clarify that the County Recorder shall not collect a recording fee for a receipt or affidavit generated from the electronic payment of the real property transfer tax; An Act to define the affirmative defense of lack of criminal responsibility; The Revised Uniform Fiduciary Access to Digital Assets Act; the Uniform Unsworn Foreign Declarations Act; and The Uniform Voidable Transactions Act. Legislation Committee Chair Kristen Pawlik reported on the recommendation of the Legislation Committee that the Association oppose the Ballot Initiative The Lawsuit Reform Amendment of 2016: An Amendment to Limit Contingency Attorney Fees and Non-Economic Damages in Medical Lawsuits. The Legislation Committee further recommended the appointment of a

Ballot Question Committee to start working on options to oppose the initiated act in any litigation, including the filing of an amicus brief on behalf of the Association, and during consideration by the General Assembly. The House voted to support the recommendations of the Legislation Committee.

Each state bar district met during the meeting to elect a representative to the Legislation Committee for a term of three years. Mr. George Rozzell was elected to represent District A; Mr. David H. Williams was elected to represent District B; and Mr. S. Taylor Chaney was elected to represent District C. Each of them took their seat effective July 1, 2016.

State Bar District elections were also held for positions on the House Advisory Committee to the President. Mr. Josh McFadden was elected to represent District A; Mr. James Hathaway was elected to represent District B; and Mr. Brent Eubanks was elected to represent District C. Their seats became effective July 1 as well.

The House of Delegates closed with then President Walker recognizing the outgoing delegates and the YLS Chair. He then passed the gavel to incoming President Denise Reid Hoggard. President Hoggard recognized the service of Immediate Past-President Walker and announced her appointment of Brian Rosenthal as the Chair of the Board of Governors. She also named Dean Cyndi Nance and Abtin Mehdizadegan as cochairs for the 2017 annual meeting. 

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

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Vol. 51 No. 3/Summer 2016 The Arkansas Lawyer

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The December 2015 Amendments to the

Federal Discovery Rules

By Gary D. Marts, Jr.

I

n December 2015, several amendments to the Federal Rules of Civil Procedure took effect. These amendments include substantial changes to the discovery rules, particularly to the scope of discovery, timing of various types of discovery requests, and the handling of electronically-stored information. Understanding these amendments is vital to those of us who practice in the federal courts, so this article provides a brief overview of those new rules.

Scope of Discovery: Proportionality, Not Reasonably Calculated The amendment to Rule 26 substantially changes the scope of discovery. Under the previous version of the rule, the phrase “reasonably calculated to lead to the discovery of admissible evidence” found in Rule 26(b)(1) was used to establish a broad scope for discovery.1 As the Advisory Committee on Federal Rules of Civil Procedure noted in its memorandum explaining the new rules at the time it proposed them, the “reasonably calculated” language “was never intended to have that purpose” and was instead intended to prevent parties from using inadmissibility objections at depositions.2 Efforts to curtail the use of the language to define the scope of discovery failed.3 The Advisory Committee thus removed the language altogether in hopes of eliminating “this incorrect reading of Rule 26(b)(1).”4 Because the change to the rule implementing a new standard is so substantial, here is a blacklined version of the text of Rule 26(b)(1) showing the new and deleted language:

Gary D. Marts, Jr., is a partner at Wright, Lindsey & Jennings LLP, where he focuses his practice on complex litigation, particularly class action, mass tort, and appellate matters.

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(b) Discovery Scope and Limits.

(1) Scope in General. Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.

Information within this scope of discovery need not be admissible in evidence to be discoverable. —including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. All discovery is subject to the limitations imposed by Rule 26(b)(2)(C).

Another important factor in the new discovery rules has been added to Rule 26(c)(1)(B), which now authorizes courts to shift costs between the parties where justified.

The new language incorporates proportionality considerations into the definition of the scope of discovery, requiring parties to consider proportionality in making discovery requests, responses, and objections. The proportionality factors are not entirely new to Rule 26—they were previously found in slightly different form without the new factor “the parties’ relative access to relevant information” in Rule 26(b)(2)(C), and current Rule 26(g)(1)(B)(iii) touches upon them as well. But the new rule makes them an explicit part of the definition of discovery’s scope, thus elevating their importance in the consideration of whether a particular request is within the permissible scope of discovery. Courts should now consider proportionality within the context of the case in deciding all discovery disputes rather than falling back on the blanket declaration that the scope of discovery is broad.

“Any lawyer practicing in federal court must understand and apply these new discovery requirements. Doing so might serve the Advisory Committee’s goals of easing discovery’s burden on parties and the courts, but it will definitely protect lawyers from making unnecessary mistakes and creating unnecessary headaches during the discovery process.”

The new rule gives rise to a number of considerations for attorneys throughout the discovery process: • Consider discovery at the outset of the case when pleading claims and defenses.

Unnecessary claims or defenses might lead to unnecessary and potentially costly discovery, which will weigh on the proportionality analysis.

• Consider proportionality when making requests in discovery, particularly the possible cost of discovery. Excessive cost might be cause for denying the discovery altogether, or the requesting party might end up footing the bill if the court decides to shift costs.

• Keep in mind the burdens and costs imposed by a specific request in responding to it, particularly if it is demonstrable that the same information is available through less burdensome means.

• Be ready to discuss those burdens and costs with the opposing party with more specificity. Simply stating that a particular request is burdensome and potentially costly will likely not suffice. If a discovery dispute comes before a court, those burdens and costs will be important parts of the analysis.

• Remember that this analysis is holistic and requires consideration of all the factors.

Focusing narrowly on individual factors like the amount in controversy, the responding party’s financial resources, or the sheer cost of fulfilling a request should not satisfy the analysis. Consider and apply all the factors listed in the new rule to increase the chances of prevailing in a discovery dispute over scope.

Remembering these considerations might assist in realizing the Advisory Committee’s hopes that the new proportionality standard will “decrease the cost of resolving disputes without sacrificing fairness,”5 which obviously would be laudable. Whether that happens remains to be seen, but the new standard will be the starting point for preparing discovery requests, responding to them, and disputing them for the foreseeable future.

Attorneys must heed those new requirements at every step in the discovery process.

Requests for Production: Changes to Timing and Formal Objection Requirements The 2015 amendments to the Federal Rules of Civil Procedure also change the timing of requests for production, as well as how parties respond to such requests. These changes modify the procedure for serving and responding to requests for production considerably, so attorneys must be conversant with them to avoid mistakes, including the possible waiver of objections.

New language in Rule 26(d)(2) now permits a party to serve requests for production (but not interrogatories) before the Rule 26(f) planning conference but no earlier than 21 days after the party receiving the requests was served with process in the case.

Such requests are deemed to have been served at the first Rule 26(f) conference, meaning that the responding party’s 30-day deadline for responding to the requests begins at that time, not at the time that the requests were originally served. This new requirement marks a substantial change

from the prior version of Rule 26, which generally prohibited any discovery prior to the Rule 26(f) conference.

Rule 34(b)(2) changes the requirements for responding to requests for production.

Because the changes are substantial, the following is a blacklined version of the rule showing the changes: (b) Procedure. *** (2) Responses and Objections.

(A) Time to Respond. The party to whom the request is directed must respond in writing within 30 days after being served or—if the request was delivered under Rule 26(d)(2)— within 30 days after the parties’ first Rule 26(f) conference. A shorter or longer time may be stipulated to under Rule 29 or be ordered by the court.

(B) Responding to Each Item. For each item or category, the response must either state that inspection and related activities will be permitted as requested or state an objection with specificity the grounds for objecting to the request, including the reasons.

The responding party may state that it will produce copies of documents or of electronically stored information instead of permitting inspection. The production must then be completed no later than the time for inspection specified in the request or another reasonable time specified in the response.

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(C) Objections. An objection must state whether any responsive materials are being withheld on the basis of that objection. An objection to part of a request must specify the part and permit inspection of the rest.

Under this new language, parties must provide much greater specificity in their objections to requests for production.

Simply stating, for example, that a request is “vague and ambiguous” will no longer suffice—the objecting party must provide specific explanation as to why the wording of the request is vague and ambiguous.

Whatever the objection, the party making it must provide specifics. In addition to providing such specificity in the objection, a responding party must state whether they are actually withholding documents based on the objection. For documents that are not being withheld, the responding party must state whether it will produce copies or permit inspection of the requested documents and complete that production “no later than the time for inspection specified in the request or another reasonable time specified in the response.”

These new requirements seek to “eliminate three relatively frequent problems in the production of documents and ESI.”6 The first problem is “the use of broad, boilerplate objections that provide little information about the true reason a party is objecting.”7 The second problem derives from “responses that state various objections, produce some information, and do not indicate whether anything else has been withheld from discovery on the basis of the objections.”8 The third problem arises from “responses which state that responsive documents will be produced in due course, without providing any indication of when production will occur and which often are followed by long delays in production.”9 The Advisory Committee believes that these practices lead to discovery disputes and that eliminating them might reduce the incidence of such disputes. As was the case with the proportionality requirement, it is too early to gauge the success of that effort, but attorneys must understand the new requirements to respond correctly and effectively to requests for production.

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Electronically Stored Information: New Standards for Sanctions The Advisory Committee concluded that the former version of Rule 37(e) dealing with electronically stored information (“ESI”), which was adopted in 2006, lacked sufficient detail guiding the handling of sanctions in light of “the explosion of ESI in recent years,” which has “affected all aspects of civil litigation.”10 That lack of detail resulted in a circuit split over handling the loss of ESI that should have been preserved for litigation: “Some circuits hold that adverse inference jury instructions (viewed by most as a serious sanction) can be imposed for the negligent loss of ESI. Others require a showing of bad faith.”11 The resulting confusion led some parties to “over-preserve ESI” out of fear of being sued in a circuit where negligence was the standard, costing parties a lot of money to preserve ESI for litigation that might never occur.11 The new version of Rule 37(e) aims to correct those issues by scrapping the old rule entirely and instituting new requirements.

The following blacklined version of the rule shows the changes: (e) Failure to Provide Preserve Electronically Stored Information.

Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system. If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court: (1) upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice; or (2) only upon finding that the party acted with the intent to deprive another party of the information’s use in the litigation may: (A) presume that the lost information was unfavorable to the party;

(B) instruct the jury that it may or must presume the information was unfavorable to the party; or (C) dismiss the action or enter a default judgment.

Under the new version of Rule 37(e), several requirements must be present before a court considers the imposition of sanctions for the unintentional loss of ESI.13 First, the lost ESI “should have been preserved in the anticipation or conduct of litigation.”14 Second, the party must have failed to take “reasonable steps” to preserve the lost ESI, a requirement that the Advisory Committee says “does not call for perfection” but does mandate consideration of the particular party and its sophistication and experience with regard to litigation.15 Third, the lost ESI must not be subject to restoration or replacement through additional discovery—if the lost ESI “is restored or replaced, no further measures should be taken” with regard to sanctions.16 Fourth, the loss of the ESI must prejudice the other party, a consideration that imposes no burden of showing prejudice or the lack of it on one party or the other, leaving the court discretion to assess prejudice in particular cases.17 If these requirements are met, the new text of the rule provides that the court “may order measures no greater than necessary to cure the prejudice.”

The available range of sanctions is much more severe if the court finds that the party that lost the ESI “acted with the intent to deprive another party of the information’s use in the litigation.” In such instances, the court may presume that the lost ESI was unfavorable to the party losing it, instruct the jury accordingly, or even dismiss the action or enter a default judgment. The intent requirement rejects cases permitting sanctions upon a finding of negligence.

No prejudice is required if the loss was intentional. The Advisory Committee warns that courts should impose these sanctions cautiously, noting that the enumerated sanctions are not justified simply because an intentional loss occurs, particularly where the lost information was not particularly important to the case.18 Any lawyer practicing in federal court must understand and apply these new discovery requirements. Doing so might serve

the Advisory Committee’s goals of easing discovery’s burden on parties and the courts, but it will definitely protect lawyers from making unnecessary mistakes and creating unnecessary headaches during the discovery process.

Endnotes: 1. See, e.g., Rotoworks Int’l Ltd. v.

Grassworks USA, LLC, No. CIV. 07-05009, 2007 WL 1219716, at *2 (W.D. Ark. Apr. 25, 2007) (citing the “reasonably calculated” language in Rule 26(b)(1) to support the conclusion that “the scope of discovery permitted in civil litigation is broad”).

2. Memorandum from Hon. David G. Campbell, Chair, Advisory Comm. on Fed. Rules of Civil Procedure to Jeffrey Sutton, Chair, Standing Comm. on Rules of Practice & Procedure (June 14, 2014), at B-10 (“Advisory Committee Memo”).

3. Id. 4. Id. 5. Advisory Committee Memo, supra n.

1, at B-8.

6. Advisory Committee Memo, supra n.

1, at B-11.

7. Id. 8. Id. 9. Id. 10. Advisory Committee Memo, supra n.

1, at B-14.

11. Id. 12. Id. 13. The rule has no application to other forms of information—it applies only to ESI. 14. The duty to preserve information is of course not new—courts have long imposed requirements on parties to preserve information in circumstances where litigation might result. See, e.g., Lewy v.

Remington Arms Co., 836 F.2d 1104, 1112 (8th Cir. 1988) (stating that “if the corporation knew or should have known that the documents would become material at some point in the future then such documents should have been preserved”).

15. Fed. R. Civ. P. 37 Advisory Committee Notes, 2015 Amendment.

16. Id. 17. Id. 18. Id. 

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Vol. 51 No. 3/Summer 2016 The Arkansas Lawyer

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An Introduction to the False Claims Act

By David S. Mitchell, Jr.

“[A]lthough the FCA is perhaps most frequently employed and has gained the most notoriety in the health care industry, any individual or entity that does business with or receives funds from the government is potentially subject to the FCA.”

I David S. Mitchell, Jr., is an attorney with the Rose Law Firm and concentrates his practice in business and financial services litigation.

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f you have a client who does business with the government

or receives funds from a government agency or program, including, but not limited to, federal health care programs such as Medicare, federally insured loans and mortgages, agricultural programs, military or other governmental contracts, or disaster assistance, it could currently be a defendant in a lawsuit seeking millions of dollars in penalties without either you or your client having any idea whatsoever about its existence.

Furthermore, if your client is unknowingly facing such a suit, it very well may have been initiated by one of your client’s employees or contractors who could still be working for your client and perhaps continuing to gather evidence against your client while the suit remains under seal for months. At some point, your client may learn about the lawsuit when he or she receives a request for information or documents from the government via a Civil Investigative Demand (“CID”), or in some cases, only once the government elects to unseal the complaint. This situation occurs hundreds of times each year to a broad spectrum of businesses ranging from publicly traded, Fortune 500 companies to small, closely held companies or individuals who learn they are a defendant in a lawsuit alleging violations of the False Claims Act. Regardless of the size and sophistication of the defendant, however, any client that learns that it is the defendant in a suit under the False Claims Act likely faces unique challenges and significant exposure. This article provides a brief introduction to the False Claims Act and highlights a few emerging issues and trends in False Claims Act litigation.

History and Significance The False Claims Act, 31 U.S.C. §§ 3729 - 3733 (“FCA”), was originally enacted in 1863 in response to concerns that suppliers to the Union Army were defrauding the government during the Civil War and imposes liability on persons who knowingly present or cause to be presented false or fraudulent claims for payment to the government.1 Although the FCA is now over 150 years old, key amendments to the FCA in the False Claims Amendments Act of 1986,2 the Fraud Enforcement and Recovery Act of 2009,3 and the Patient Protection and Affordable Care Act of 20104 significantly expanded its scope, and, as a result, the FCA has developed into the leading civil enforcement mechanism against government fraud. As recently confirmed by Principal Deputy Assistant Attorney General Benjamin C. Mizer, head of the Civil Division of the Department of Justice, “The False Claims Act has again proven to be the government’s most effective civil tool to ferret out fraud and return billions [of dollars] to taxpayer-funded programs.”5 In the government’s 2015 fiscal year alone, the Department of Justice obtained a staggering $3.58 billion in settlements and judgments from actions brought under the FCA.6 2015 marked the sixth consecutive year that recoveries under the FCA exceeded $3 billion, bringing the total amount recovered since 2009 to over $26.6 billion.7 Consistent with recent years, FCA cases involving federal health care programs, namely Medicare and Medicaid, accounted for the largest share of recoveries. Of the $3.58 billion recovered in 2015, approximately $1.96 billion related to cases involving federal health care programs, and health care related recoveries since 2009 now exceed $16.7 billion.8 In the health care context, FCA actions most commonly involve allegations relating to the medical necessity of services, violations of the Anti-Kickback Statute (generally prohibiting the payment of remuneration for referrals),9 violations of the Stark Law (prohibiting certain physician referrals to entities in which the physician has a financial interest),10 upcoding or overcharging for goods or services provided, and submitting claims for services that were not rendered. In addition to actions involving the health care industry, the government brought notable actions or obtained sizable recoveries in 2015 in cases involving, for example, the improper origination of mortgages insured by the Federal Housing Administration,11 government contractors obtaining reimbursement for excessive charges for software and related services

by concealing commercial pricing information,12 fraudulently issuing insurance policies under the Department of Agriculture’s federal crop insurance program,13 and in a case with Arkansas ties, allegations that a bank’s owner and president made misrepresentations to the U.S. Department of the Treasury to obtain Troubled Asset Relief Program (“TARP”) funds.14 Thus, although the FCA is perhaps most frequently employed and has gained the most notoriety in the health care industry, any individual or entity that does business with or receives funds from the government is potentially subject to the FCA. FCA Basics The FCA generally imposes liability for knowingly presenting a false or fraudulent claim to the government for payment or knowingly making a false record or statement material to a false or fraudulent claim.15 In addition, the FCA imposes liability for what is often referred to as a “reverse false claim” when an individual or company improperly avoids having to pay money back to the government.16 “Claim” is broadly defined under the FCA to include any request for money or property that is presented to the government or to any contractor, grantee, or other recipient if the money is to be spent on the government’s behalf and the government provides any portion of the money requested.17 In effect, any person or business receiving funds that may be traced to the government is potentially subject to FCA liability. Finally, perhaps the most important element of a FCA claim is knowledge; in order for a false claim to give rise to FCA liability, the person must have submitted the claim with the requisite knowledge of its falsity. “Knowingly” is defined as: (i) actual knowledge, (ii) deliberate ignorance of the truth or falsity of the information, or (iii) reckless disregard of the truth or falsity of the information.18 The potential financial exposure for violations of the FCA is enormous. The FCA not only imposes a civil penalty between $5,500 to $11,000 for each false claim submitted, but also imposes mandatory treble damages.19 For health care providers or others that may regularly submit a considerable number of small claims, the civil penalties can easily exceed the actual damages, even when trebled. As a result, the damages that a defendant may face in an FCA case can be astronomical. Furthermore, health care providers faced with potential FCA liability also may be subject to exclusion from participation in federal health care programs by the U.S. Department of Health & Human Services, Office of Inspector General (“HHS OIG”).

FCA claims may be asserted by both the Department of Justice and private individuals.20 FCA claims asserted by private individuals, referred to as relators, are known as qui tam actions. In qui tam cases, relators stand in the shoes of the government and assert claims for FCA violations in the name of and on behalf of the government.21 Procedurally, relators file a complaint under seal and must provide a copy of the complaint as well as “written disclosures of substantially all material evidence and information the [relator] possesses” to the government.22 The Department of Justice then has 60 days to investigate and determine whether to intervene in the case, but extensions to this 60-day deadline may be obtained for “good cause.”23 After the government conducts its investigation, the government has the option to: (i) intervene in the case and assume control over the suit, or (ii) decline to intervene and allow the relator to continue to pursue his or her claims.24 During the time the government is determining whether to intervene, the complaint remains under seal and “shall not be served on the defendant.”25 The potential to obtain extraordinary damages incentivizes private individuals to bring cases under the FCA’s qui tam provisions, and the number of qui tam cases filed each year remains at all-time highs. If the government elects to intervene in a qui tam action, the relator is entitled to receive at least 15% and up to 25% of the recovery.26 In the event the government elects not to intervene, the relator’s reward is between 25% and 30% of the recovery.27 In addition, if the relator prevails, she is entitled to recover her reasonable expenses incurred in bringing the qui tam action, including attorneys’ fees and costs.28 During the government’s 2015 fiscal year, relators filed 632 new qui tam lawsuits and received nearly $598 million as their share of the proceeds from recoveries.29 Notably, $334.6 million of the $598 million received by relators in 2015 was obtained in cases in which the government declined intervention.30 As is evident, FCA qui tam cases can be very lucrative for relators, as well as their attorneys, which will almost certainly continue to fuel future qui tam case filings.

Primary Statutory Defenses Two notable statutory defenses to FCA claims are the public disclosure bar and the first-to-file bar. The public disclosure bar generally provides that a qui tam action must be dismissed if “substantially the same allegations or transactions” as alleged in the qui tam complaint were previously disclosed to the public, unless the relator qualifies as an “original

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source.”31 “Original source”32 is defined as an individual who has “knowledge that is independent of and materially adds to the publicly disclosed allegations or transactions, and who has voluntarily provided the information to the Government before filing an action.”33 The Eighth Circuit has taken a rather broad interpretation of what constitutes a public disclosure and has held that a response to a Freedom of Information Act request, even if not publicly disseminated, constituted a public disclosure.34 Other courts, however, have taken a more narrow view of the public disclosure bar and have required that the disclosure actually have been made public through “some affirmative act of disclosure to the public outside the government.”35 Thus, as with a number of matters involving the FCA, it is important to review jurisdiction-specific precedent in evaluating the public disclosure bar as a potential defense to FCA claims.

In addition to the public disclosure bar, the first-to-file bar provides that “[w]hen a person brings an action . . . no person other than the Government may intervene or bring a related action based on the facts underlying the pending action.”36 Last year, the United States Supreme Court resolved a circuit split involving whether the first-to-file bar applies only where the first-filed action remains open and thus “pending” or whether it continues to apply even after the first-filed action has been dismissed.37 In Kellogg Brown & Root Servs., Inc. v. U.S. ex rel. Carter, the Supreme Court held that “a qui tam suit under the FCA ceases to be ‘pending’ once it is dismissed.”38 Thus, an earlier-filed suit only serves as a defense to a later action under the first-to-file bar until the earlier suit is dismissed.

Developing Issues While a number of developing issues will impact the government’s future enforcement efforts under the FCA, two important subjects that are currently at the forefront of FCA litigation are additional focus on individual liability and the implied certification theory of FCA liability. On September 9, 2015, Sally Quillian Yates, Department of Justice, Deputy Attorney General, issued a memorandum entitled “Individual Accountability for Corporate Wrongdoing,” now commonly known as the “Yates Memo,” that outlines six key steps intended to increase the focus on individual accountability during investigations into corporate misconduct.39 These key steps are: 1. To be eligible for any cooperation credit, corporations must provide to the Department 28

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all relevant facts about the individuals involved in corporate misconduct.

2. Both criminal and civil corporate investigations should focus on individuals from the inception of the investigation.

3. Criminal and civil attorneys handling corporate investigations should be in routine communication with one another.

4. Absent extraordinary circumstances, no corporate resolution will provide protection from criminal or civil liability for any individuals.

5. Corporate cases should not be resolved without a clear plan to resolve related individual cases before the statute of limitations expires and declinations as to individuals in such cases must be memorialized.

6. Civil attorneys should consistently focus on individuals as well as the company and evaluate whether to bring suit against an individual based on considerations beyond that individual’s ability to pay.

The Yates Memo’s clarity with regard to the government’s priority in holding individuals responsible will undoubtedly impact the manner in which FCA cases are pursued by the government. As Deputy Attorney General Yates noted in a May 10, 2016, speech, “[o]ur goal is to get to the bottom of who did what and if there are culpable individuals, hold them accountable.”40 In addition to the increased focus on individual accountability, another important development FCA observers are closely monitoring involves the so-called implied certification theory of FCA liability. Under this theory, a claim may be considered false under the FCA if the defendant submitted claims for payment while in violation of an underlying rule or regulation, even if the rule violation was not an express condition for payment, but was merely a condition for participation in the federal program.

To resolve a circuit split, the United States Supreme Court recently addressed the viability of the implied certification theory of FCA liability in Universal Health Services, Inc. v.

U.S. ex rel. Escobar.41 In Escobar, the Supreme Court held that FCA liability may attach on the basis of the implied certification theory under certain circumstances.42 Specifically, the Court found that the implied certification theory may serve as a basis for FCA liability where: (i) “the claim does not merely request payment, but also makes specific representations about the goods or services provided,” and (ii) “the defendant’s failure to disclose noncompliance with material statutory, regulatory, or contractual requirements

makes those representations misleading halftruths.”43 Application of these requirements will undoubtedly require highly fact intensive inquiries, and as a result of the Court’s decision to not set forth bright-line restrictions on the limits of the implied certification theory, it appears unlikely that Escobar will significantly reduce the scope of FCA liability for companies that do business with the government.

Although Arkansas has seen a relatively small number of FCA lawsuits compared to certain other states, Arkansas businesses are certainly not immune to such actions as evidenced by various recently publicized FCA settlements involving Arkansas companies and individuals. Additional FCA actions targeting businesses in Arkansas should be expected, and companies transacting business with the government should be vigilant in attempting to limit their potential exposure. Among other things, businesses should constantly evaluate their current compliance policies and should ensure their policies and practices are regularly updated to remain current with evolving legal standards. Although there is no completely fail-safe method for avoiding FCA allegations, companies can effectively limit their potential FCA liability by making compliance a top priority.

Endnotes 1. 31 U.S.C. § 3729.

2. False Claims Amendments Act, Pub. L. 99-562, 100 Stat. 3153 (Oct. 27, 1986).

3. Fraud Enforcement and Recovery Act of 2009, Pub. L. 111-21, 123 Stat. 1617 (May 20, 2009).

4. Patient Protection and Affordable Care Act, Pub. L. 111-148, 124 Stat. 119 (March 23, 2010).

5. Press Release, Department of Justice, Justice Department Recovers Over $3.5 Billion From False Claims Act Cases in Fiscal Year 2015 (Dec. 3, 2015) (available at https://www.justice.gov/opa/pr/justicedepartment-recovers-over-35-billion-falseclaims-act-cases-fiscal-year-2015).

6. Department of Justice, Fraud Statistics – Overview (Nov. 23, 2015) (available at https://www.justice.gov/opa/file/796866/ download).

7. Id. 8. Id. 9. 42 U.S.C. § 1320a-7b.

10. 42 U.S.C. § 1395nn.

11. Press Release, Department of Justice, First Tennessee Bank N.A. Agrees to Pay $212.5 Million to Resolve False Claims Act Liability Arising from FHA-Insured Mortgage Lending (June 1, 2015) (avail-

able at https://www.justice.gov/opa/pr/firsttennessee-bank-na-agrees-pay-2125-millionresolve-false-claims-act-liability-arising).

12. Press Release, Department of Justice, VMWare and Carahsoft Agree to Pay $75.5 Million to Settle Claims that they Concealed Commercial Pricing and Overcharged the Government (June 30, 2015) (available at https://www.justice.gov/opa/pr/vmware-andcarahsoft-agree-pay-755-million-settle-claimsthey-concealed-commercial-pricing).

13. Press Release, Department of Justice, Fireman’s Fund Insurance Company to Pay $44 Million to Settle False Claims Act Allegations (March 23, 2015) (available at https://www.justice.gov/opa/pr/firemansfund-insurance-company-pay-44-millionsettle-false-claims-act-allegations).

14. Press Release, Department of Justice, United States Sues Estate and Trusts of Deceased Man for False Claim to U.S. Treasury to Obtain $17.3 Million Investment in Arkansas bank (July 7, 2015) (available at https://www.justice.gov/opa/pr/ united-states-sues-estate-and-trusts-deceasedman-false-claim-us-treasury-obtain-173-million); see also Press Release, Department of Justice, United States Settles False Claims Act Action against Estate and Trusts of Layton

P. Stuart for $4 Million (Oct. 16, 2015) (available at https://www.justice.gov/opa/pr/ united-states-settles-false-claims-act-actionagainst-estate-and-trusts-layton-p-stuart-4).

15. 31 U.S.C. § 3729.

16. 31 U.S.C. § 3729(a)(1)(g).

17. 31 U.S.C. § 3729(b)(2).

18. 31 U.S.C. § 3729(b)(1).

19. 31 U.S.C. § 3729(a)(1).

20. 31 U.S.C. § 3730.

21. Id. 22. 31 U.S.C. § 3730(b).

23. 31 U.S.C. § 3730(b)(3).

24. 31 U.S.C. § 3730(b)(4).

25. 31 U.S.C. § 3730(b)(2).

26. 31 U.S.C. § 3730(d)(1).

27. 31 U.S.C. § 3730(d)(2).

28. 31 U.S.C. § 3730(d)(1) and (2).

29. Department of Justice, Fraud Statistics – Overview (Nov. 23, 2015) (available at https://www.justice.gov/opa/file/796866/ download).

30. Id. 31. 31 U.S.C. § 3730(e)(4).

32. The definition for “original source” was significantly altered by the Patient Protection and Affordable Care Act of 2010 (“PPACA”). For purposes of this article, only the post-PPACA version of the FCA is

discussed.

33. 31 U.S.C. § 3730(e)(4)(B).

34. U.S. ex rel. Kraxberger v. Kansas City Power & Light Co., 756 F.3d 1075, 1078-79 (8th Cir. 2014).

35. U.S. ex rel. Whipple v. ChattanoogaHamilton County Hosp. Auth., 782 F.3d 260, 268 (6th Cir. 2015) (collecting cases).

36. 31 U.S.C. § 3730(b)(5).

37. Kellogg Brown & Root Servs., Inc. v. U.S. ex rel. Carter, 135 S. Ct. 1970, 1979 (2015).

38. Id. 39. Memorandum from Sally Quillian Yates, Deputy Attorney General, Department of Justice, Individual Accountability for Corporate Wrongdoing (Sept. 9, 2015) (available at https://www.justice.gov/dag/ file/769036/download).

40. Sally Quillian Yates, Deputy Attorney General, Department of Justice, Remarks at New York City Bar Association White Collar Crime Conference (May 10, 2016) (available at https://www.justice.gov/opa/speech/ deputy-attorney-general-sally-q-yates-deliversremarks-new-york-city-bar-association).

41. Universal Health Services, Inc. v. U.S. ex rel. Escobar, 136 S. Ct. 1989 (2016).

42. Id. at 2001.

43. Id. 

Pharmacists Optometrists

Vol. 51 No. 3/Summer 2016 The Arkansas Lawyer

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HOT SPRINGS CONVENTION CENTER

The Annual

The Arkansas Bar Association held its 118th Annual Meeting and Joint Meeting with the Arkansas Judicial Council at the Hot Springs Convention Center June 15 18, 2016. More than 1,000 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 http://www.arkbar.com/annualmeeting/ home.

ArkBar

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

2016 JUNE 15-18th

Eddie and Gwen Walker at the Presidents’ Reception

Annual Meeting Chair Aaron Squyres at the TGIF reception

Chris and Molly McNultly and Arkansas Judicial Council President Judge Mary Spencer McGown

2015-2016ArkansasBarFoundation President Judge James Cox and wife Patti at the Presidents’ reception

Chief Justice Howard Brill presented the State of the Judicary

ATLA Director Matthew Haas, Joseph T. Gates and Jim Nickels at the TGIF reception

Stephens Insurance representatives Richard Henry and Bill Cobb presented a door prize to Erica Miller.

J. Shepherd Russell II and Kevin Crass at the Friday Firm reception

Melissa Sawyer chaired this year’s Legal Runaround

Members of the Rainwater, Holt & Sexton law firm: (from left) Jake Logan, John Miller, Matthew Hutsell, Geoff Thompson, Mike Rainwater, Denise Reid Hoggard, Jonathan Warren, Bob Sexton, Jeremy McNabb, Lauren Manatt, Sarah Baber, John Rainwater

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Meeting registrants enjoyed the many opportunities for prizes during the breaks. ArkBar staff led “#ArkBar fit” breaks and gave away YETI tumblers, Fitbits and t-shirts to participants. Gerry Schulze won the Golden Ticket prize, a YETI Tundra 45, and Jonathan Sheets won the Scavenger Hunt with a YETI Hopper 20.

ou

Thank Y

2016 Annual Sponsors

• Alternative Dispute Resolution Section • Arkansas Bar Foundation • Arkansas Bar Patron & Benefactor Members • Arkansas Trial Lawyers Association • AY Magazine • Civil Litigation Section • Clio • Cross, Gunter, Witherspoon & Galchus, P.C. • Daily & Woods, .PL.L.C. • Debtor/Creditor Law Section • Dover Dixon & Horne PLLC • Financial Institutions Law Section • Friday, Eldredge & Clark LLP • Hamlin Dispute Resolution, LLC • Hardin, Jesson, & Terry, PLC • Hare, Wynn, Newell & Newton LLP • Hot Springs Convention Center • Kirby & Rosalind Mouser • Kutak Rock, LLP (Little Rock) • Legal Directories Publishing Co. • LexisNexis • Magna IV Communications • PPGMR Law, PLLC • Quattlebaum, Grooms & Tull PLLC • Rainwater, Holt, & Sexton • Ramsay, Bridgforth, Robinson and Raley LLP • Rose Law Firm • Simmons Bank • Stephens Insurance, LLC • Sunbelt Convention Services Inc. • TCPrint Solutions • William A. Martin • Womack Phelps Puryear Mayfield & McNeil, P.A. • Workers’ Compensation Section • Wright, Lindsey & Jennings LLP • Young Lawyers Section

SAVE THE DATE JUNE 14 - 17, 2017 Mark your calendar for the 2017 Annual Meeting the third week in June in Hot Springs.

Vol. 51 No. 3/Summer 2016 The Arkansas Lawyer

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The Annual

ArkBar

2015 - 2016 Arkansas Bar Association Award Recipients 2015 - 2016 Association President Eddie H. Walker, Jr., selected the following members as award recipients for their outstanding work and service.

Babin

Burks

Comstock

Fryar

Grisham

Hendricks

Henry

Holt

Hudson

Julian

McDonald

McKinney

McNulty

Rainwater

Sloan

Melissa Grisham, Arkansas Insurance Department, received the YLS Award of Excellence.

Brad L. Hendricks, Brad Hendricks Law Firm, received a Golden Gavel award for his work as chair of the Professional Ethics Committee.

Squyres

Stroud

Judy Simmons Henry, Wright, Lindsey & Jennings LLP, received the CLE Award.

Joyce Bradley Babin, Chapter 13 Standing Trustee, Eastern and Western Districts of Arkansas received the CLE Award.

Gary Holt, Gary Holt & Associates, P.A., received the Lawyer Community Legacy Award for his volunteer public services.

Larry W. Burks, Burks ADR, LLC, received a Golden Gavel award for his work as chair of the Task Force on Professional Liability Insurance.

Ashley Welch Hudson, Kutak Rock LLP, received the Maurice Cathey Award for her valued contributions to The Arkansas Lawyer magazine.

Jon B. Comstock, Comstock Conflict Resolution Services, received a Golden Gavel award for his work as chair of the Task Force on Maintaining a Fair and Impartial Judiciary.

Jim L. Julian, Chisenhall, Nestrud & Julian, P.A., received a Golden Gavel award for his work as chair of the Editorial Advisory Board Committee.

Matthew L. Fryar, Cypert, Crouch, Clark & Harwell, PLLC received the Judith Ryan Gray Outstanding Young Lawyer award.

Kathleen M. McDonald, Beacon Legal Group, received a Golden Gavel award for her work as chair of the Mid-Year Meeting.

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J. Cliff McKinney, Quattlebaum, Grooms & Tull PLLC, received a Golden Gavel award for his work as chair of the Task Force on Dues.

Jack A. McNulty received a Presidential Award of Excellence for his work as lobbyist for the Arkansas Bar Association.

John Rainwater, Rainwater, Holt & Sexton, received the YLS Award of Excellence.

Shaneen K. Sloan, Hyden, Miron & Foster, PLLC, received a Golden Gavel award for her work as Association Treasurer.

Aaron L. Squyres, Wilson & Associates, PLLC, received a Golden Gavel award for his work as chair of the Annual Meeting.

Judge John F. Stroud, Jr. of Texarkana, received a Golden Gavel award for his work as co-chair of the Judiciary Committee.

The Annual

ArkBar

Arkansas Bar Foundation and Arkansas Bar Association 2015 - 2016 Annual Joint Award Recipients

Outstanding Lawyer Award

Judge Robert F. “Bobby” Fussell retired U.S. Bankruptcy Judge, Little Rock, in recognition of excellence in the practice of law and outstanding contributions to the profession.

Outstanding LawyerCitizen Award

Sidney H. McCollum Alternative Dispute Resolution, Inc., 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.

James H. McKenzie Professionalism Award

Eugene Hunt Hunt Law Firm, Pine Bluff, in recognition of sustained excellence through integrity, character and leadership to the profession and the community.

C.E. Ransick Award of Excellence

Harry Truman Moore of Goodwin Moore PLLC, Paragould, in recognition of outstanding contributions to the profession.

Equal Justice Distinguished Service Award

Nate Coulter Central Arkansas Library System, Little Rock, in recognition of his commitment to and participation in equal justice programs, including pro bono efforts through legal services programs.

Watch for Joint Annual Award Nomination Information in February 2017 at www.arkbar.com/awards

Members celebrating 50 years of practice were honored at a reception and luncheon at the Arlington Hotel on June 16, 2016.

2015-2016 YLS Chair Matt Fryar passed the gavel to incoming YLS Chair Greg Northen.

ARKANSAS BAR FOUNDATION WRITING AWARDS: Tim Cullen received the general writing category for his article in the Winter 2016 issue of The Arkansas Lawyer magazine: “Judicial Campaign Finance: Can the Independence, Integrity and Impartiality of the Judiciary Survive Unlimited Stealth PAC Expenditures in Judicial Elections?”

Angela Mann and Jack Wagoner received the legal writing category award for their article in the Winter 2016 issue of The Arkansas Lawyer magazine: “Round Pegs and Square Holes: How Same Sex Marriage Does Not Fit Neatly Into Arkansas’ Existing Statutory Framework” OUTSTANDING LOCAL BAR ASSOCIATIONS Pulaski County Bar Association Sebastian County Bar Association Vol. 51 No. 3/Summer 2016 The Arkansas Lawyer

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arkansas supreme court historical society

Brothers-in-Law H. Thomas Johnson and George C. Watkins —The Second and Third Chief Justices of Arkansas

By Judge J. W. Looney Thomas Johnson was the second Chief Justice of the Arkansas Supreme Court, 1845-1853, and was succeeded by his brother-in-law, George C. Watkins, 1854-1855.

Thomas Johnson was born in Salisbury, Wicomico County, Maryland, on December 29, 1808. He came to Arkansas in the early 1830s and settled in Batesville. He married Louisa Crease, daughter of state treasurer John Crease, in 1839. One of Louisa’s sisters, Mary, married George C. Watkins. The Johnsons had four children including twins.

Johnson was not related to the politically powerful Johnson family which controlled Arkansas politics during the period but was supported by them.

Johnson served as prosecuting attorney during the territorial years and was elected circuit judge in 1840. When Chief Justice Daniel Ringo’s term ended, Johnson was elected in his place and commenced service on the court in 1845. He served his entire eight-year term. After he left the court he served for two years (1856-58) as attorney general. Johnson was regarded as a “conscientious public servant” and upon his death the Supreme Court adopted a tribute referring to him as a man with “a high order of intellect, of unexceptional moral character, and eminently correct in all the relations of life . . . .”1 George C. Watkins was born in Shelbyville, Kentucky, on November 25, 1815, and came with his family to Arkansas in 1821.

His half-brother, Robert Watkins, was the state’s first secretary of state and the family achieved early prominence in the state.

Watkins attended law school at the famous Litchfield Law School in Connecticut and graduated in 1833 in one of the last classes of the law school. He joined Chester Ashley in the practice if law. He married Mary Crease, the sister of Louisa Johnson.

Watkins served as prosecuting attorney in the Fifth Judicial Circuit in 1845-1849 and as attorney general. He was persuaded to 34

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run for the Supreme Court by the members of the bar in Little Rock and was elected to replace his brother-in-law, Johnson, as Chief Justice in 1853 but only served two years. He had been a law partner of James Curran, who died in 1854, and Watkins resigned from the court to handle business of the firm. After the death of his first wife Watkins married Sophia Curran, the widow of James and the daughter of Governor William Fulton.

Watkins suffered greatly during the Civil War. He lost a son and was himself charged with treason for his service on the Confederate military court. After the war he was pardoned and practiced law with U.M. Rose as Rose and Watkins, which became one of the state’s best known firms.

The 10 years of the Johnson-Watkins chief justiceships saw the workload of the Arkansas Supreme Court increase dramatically. Johnson was the workhorse of the court during his years of service especially since the other positions on the court were occupied by justices whose service was short until the election of David Walker and Christopher C. Scott in 1848. Watkins was credited with clearing a backlog of cases when he joined the court, but much of the backlog may be attributed to the instability during the Johnson years and Johnson’s inability to bear any greater load than he did.

During the Johnson years the court reported 804 opinions, many which dealt with jurisdictional and procedural questions. The court set high value on the regularity in procedure and would overturn decisions on the slightest technical grounds if irregularity was detected.

Probably the best illustration of the court’s obsession with correct procedure is Johnson’s opinion is Semon v. Hill2 in which the court struggled with the question of whether an “s” added to the name Semon in the court filings invalidated the judgment. It did.

Chief Justice Watkins’ most important

from left: H. Thomas Johnson, George C. Watkins (courtesy of Arkansas State Archives)

opinions may be McConnell v. Hardeman3 and Merrick & Fenno v. Avery, Wayne & Co.4 In McConnell, Watkins urged the legislature to broaden a master’s liability regarding slaves. In Merrick, he analyzed the necessity of exclusive admiralty jurisdiction in the federal courts (long before the federal courts had clarified this issue).

After a career in public service Johnson engaged in farming near Little Rock until his death in March 25, 1878. He is buried in the Mt. Holly cemetery in Little Rock. His brother-in-law, Watkins, continued to practice law after the war but died in St. Louis December 7, 1872, while returning from Virginia or Colorado where he had gone for his health. He, too, is buried in Mt. Holly Cemetery in Little Rock.

For additional information see: •John Hallum, “Biographical and Pictorial History of Arkansas” (1887).

•Richard B. McCaslin, “Reconstructing a Frontier Oligarchy: Andrew Johnson’s Amnesty Proclamation and Arkansas,” 49 Arkansas Historical Quarterly 311 (1990).

•G. B. Rose, “The Arkansas Supreme Court,” 4 The Green Bag (1892).

Endnotes: 1. Tribute to the Memory of Hon. Thomas Johnson, 33 Ark. 898 (1878).

2. 7 Ark. 70 (1846).

3. 15 Ark. 151 (1854).

4. 14 Ark. 370 (1854).

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

Vol. 51 No. 3/Summer 2016 The Arkansas Lawyer

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Are You Subject to HIPAA?

By Jenny Holt Teeter*

I. Introduction In 2016 alone, multiple health care providers, health insurance plans and others have paid millions of dollars in settlement money to the Office of Civil Rights (“OCR”) of the U.S. Department of Health and Human Services (“HHS”) for violating the Health Insurance Portability and Accountability Act (“HIPAA”).1 More than three years after HHS issued final regulations that require additional compliance efforts of covered entities and their business associates, OCR has dramatically increased enforcement of what is collectively known as the “Omnibus Rule.”2 The Omnibus Rule reaches beyond patients and their health plans, healthcare clearinghouses, and certain health care providers, which in HIPAA parlance are collectively known as “covered entities.” The Omnibus Rule also creates more stringent requirements for the business associates of covered entities. The Omnibus Rule defines a business associate as an entity that, on behalf of a covered entity, performs functions, activities, or services involving the use or disclosure of protected health information (“PHI”).3 Significantly, the Omnibus Rule makes certain provisions of HIPAA’s Security Rule and Privacy Rule directly applicable to business associates.4 Thus, business associates must comply with substantially the same HIPAA requirements as covered entities or themselves face fines.

Many businesses and service providers do not realize that they are business associates or recognize obligations related to their status. Many lawyers and accountants serve hospitals, physicians, dentists, and other healthcare providers and occasionally see protected patient information. While the lawyers recognize the importance of keeping such information confidential, they may not realize that, as a business associate of their covered entity client, they also are required to implement office-wide policies and procedures to systematically protect the PHI received from their client. Other service providers may not realize that their assistance with an employer’s self-funded insurance plans may also create a business associate relationship because of the occasional disclosure of employee PHI. The business associate relationship could also extend to IT companies or storage companies who store information for a healthcare provider or company with a self-funded insurance plan, even though those companies never “access” the information. These service providers are required to comply with HIPAA whether or not they recognize themselves as business associates and could incur significant penalties for failing to do so.

Jenny Holt Teeter is a director and shareholder with Gill Ragon Owen, P.A. who regularly assists employers with general employment law compliance issues and healthcare providers and long term care facilities with regulatory registration and compliance.

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“Many lawyers and accountants serve hospitals, physicians, dentists, and other healthcare providers and occasionally see protected patient information.

While the lawyers recognize the importance of keeping such information confidential, they may not realize that, as a business associate of their covered entity client, they also are required to implement office-wide policies and procedures to systematically protect the PHI received from their client.”

A. The Security Rule: Knowing Your Risk 101 Generally, the Security Rule requires covered entities and business associates to (i) ensure confidentiality, integrity, and availability of all electronic PHI (ePHI) they handle; (ii) protect against reasonably anticipated threats to the security and integrity of ePHI; (iii) protect against any uses or disclosures prohibited by the Privacy Rule; and (iv) ensure their workforce members comply with the Security Rule.5 The Security Rule acknowledges that covered entities and business associates range in profiles, and it allows those entities to adopt policies and procedures that most appropriately address their size, technical capabilities, and financial position, giving due consideration to the probability and severity of the risk they posit to ePHI in their control. Lawyers and law firms often function as business associates and must adhere to the same compliance requirements as their clients, whether that client is a business associate or a covered entity.

An essential compliance component of the Security Rule is the requirement that business associates conduct an accurate and detailed risk assessment that evaluates the entity when it comes to confidentiality, integrity, and availability of ePHI.6 Also, the Security Rule requires, among other things, that both covered entities and business associates select a “security official.”7 This Security Rule “guard dog” of sorts should be responsible for a host of tasks, including: developing and implementing the policies and procedures required under the Security Rule; overseeing security training to the workforce; enforcing appropriate screening procedures for the personnel that has access to ePHI; identifying backup technology that will provide an extra layer of protection

in the event of a data breach; and properly encrypting ePHI. It is vital for a business associate or covered entity to adopt security management policies and regularly conduct risk analyses to avoid paying hefty penalties to the OCR. B. The Privacy Rule: Protecting the Patient The Privacy Rule originally only applied to covered entities, but with the inception of the Omnibus Rule in 2013, the Privacy Rule also applies to business associates that come in contact with PHI.8 While the Security Rule addresses the required policies and procedures to protect the confidentiality and integrity of ePHI, the Privacy Rule regulates which disclosures and uses of PHI are permissible or required. Covered entities and business associates may use or disclose PHI only where it is both required by law and required or permitted by its business associate agreement. Under the “permissibility” umbrella, generally, business associates and covered entities must “make reasonable efforts to limit [PHI] to the minimum necessary to accomplish the intended purpose of the use, disclosure, or request.”9 Because business associates are now directly liable under the Privacy Rule, they must ensure proper safeguards are in place that limit the access to PHI by staff and that those safeguards are defined in their respective business associate agreements. For instance, lawyers or law firms acting as business associates must be careful to formulate its requests to covered entities for client PHI so only the minimum necessary disclosure is produced.

II. Lawyers as Business Associates: Are You Prepared?

HIPAA business associates do not come

in one shape or size—business associates can include accountants, IT firms, lawyers, and law firms. A lawyer or firm falls within the definition of a business associate if the lawyer “provides, other than in the capacity of a member of the workforce of such covered entity, legal . . . services to or for such covered entity, or to or for an organized healthcare arrangement in which the covered entity participates, where the provision of the service involves the disclosure of PHI from such covered entity or arrangement, or from another business associate of such covered entity or arrangement, to the person.”10 Under the Omnibus Rule, a subcontractor that creates, receives, maintains, or transmits PHI on behalf of a business associate also falls within the definition of a business associate. As explained in the discussion preceding the Omnibus Rule, “a person becomes a business associate or subcontractor by definition, not by the act of contracting with a covered entity or otherwise.” In other words: • If you or your firm provides professional legal services to a covered entity that involves the disclosure of PHI to you or your firm, then you might be a business associate.

• If you or your firm provides professional legal services to a business associate of a covered entity and you create, receive, maintain or transmit PHI on behalf of the business associate, then you might be a subcontractor of the business associate.11 Due to the expanded definition of a business associate and the direct liability the Omnibus Rule attaches to a business associate, it is crucial for you to ask yourself if you or your firm falls into one of these categories.

One important change is the addition of “subcontractor” to the definition of a business associate. Prior to the Omnibus Rule, a business associate’s (or subcontractor’s) obli-

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gations were born of the contract terms of a business associate agreement entered into with a covered entity (or in the case of a subcontractor, the agreement entered into with a business associate) to not use or disclose PHI in an impermissible way. Now, business associates and subcontractors are not only subject to contractual liability but are also directly liable for noncompliance under HIPAA.12 A business associate must abide by the Security Rule and the Privacy Rule and enter into a business associate agreement (“BAA”) with the subcontractors it hires.13 Unfortunately, the farther removed you are from the covered entity, the less obvious it becomes as to whether or not you fall within the expanded definition of a business associate. Nonetheless, it is a business associate’s obligation, not the covered entity’s, to ensure a business associate and subcontractor enters into a proper business associate agreement. It is important to note two things. First, the lack of a contract between two parties does not prevent “subcontractor designation” by OCR, and, thus, does not prevent liability in the absence of a business associate agreement. Second, lawyers and law firms still must recognize third-party relationships that trigger the need for a business associate agreement no matter how far down the chain the PHI flows because all contractors and subcontractors are business associates if they create, maintain, or transmit PHI.14 III. Enforcement on the Rise—Business Associates Face Penalties Notably, the enforcement provisions of the Omnibus Rule no longer reserve civil money penalties for non-compliant covered entities.15 Under the HIPAA Enforcement Rule, business associates and their subcontractors are directly liable for particular HIPAA violations caused by their own noncompliance as well as violations caused by their respective agents.16 Prior to the inception of the new regulations, covered entities could not be held liable for their business associates’ HIPAA violations if a proper business associate agreement was in place and both did not know of the breach of the agreement or terminated the agreement or reported the breach to HHS if steps to cure the breach were unsuccessful. Covered entities and business associates can now be held liable for the acts or omissions of its business associates or subcontractors that are 38

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acting as “agents,” as determined under the federal common law of agency. Importantly, as mentioned earlier, the mere existence of a business associate agreement will no long indemnify a covered entity or business associate for its respective business associate or subcontractor’s acts or omissions in violation of HIPAA. Penalties are capped at $1.5 million per year for each type of HIPAA violation (from an individual who did not know and by exercising reasonable diligence would not have known that he/she violated HIPAA to an individual who violated HIPAA due to willful neglect that was not promptly corrected), but this amount could substantially increase depending on the number of individuals affected and the number of violations.

Enforcement actions are on the rise and significant monetary penalties have already been imposed this year.

•North Memorial Care of Minnesota agreed to pay a $1,550,000 settlement for failing to enter into a business associate agreement with a major contractor and failing to conduct an adequate risk analysis to evaluate the potential vulnerabilities to its patients’ information, which is required under the Security Rule. Before North Memorial settled, the Attorney General of Minnesota brought allegations against the business associate for its own HIPAA violations. The AG and the business associate eventually settled for over $2 million and the business associate was forced to shut down for two years.

•A North Carolina orthopedic clinic agreed to pay $750,000 to settle charges that it handed over PHI to a potential business partner without executing a business associate agreement. In response, Jocelyn Smith, Director of the HHS, said, “HIPAA’s obligation on covered entities to obtain business associate agreements is more than a mere check-the-box paperwork exercise.”

•Feinstein Institute for Medical Research agreed to pay a whopping $3.9 million dollars, the second-largest HIPAA penalty to date, to settle charges that its security management process was limited in scope, incomplete, and insufficient to address potential risks to the confidentiality of ePHI. OCR’s investigation began after the covered entity filed a breach notification when an employee’s laptop was stolen from his car.

These cases are only the beginning as

OCR has launched Phase Two of its HIPAA audits, which will be conducted randomly to assess a covered entity or business associate’s compliance with the Privacy, Security, and Breach Notification Rules. Even if your organization is not selected for a Phase Two Audit, preparing for one can help improve HIPAA compliance. These audits will likely become a permanent feature of OCR’s investigatory authority, so it is important to determine now if data safeguards and security policies are sufficient to respond to a data breach and if those policies and procedures are appropriately documented in necessary Business Associate Agreements.

IV. What should a business associate agreement include?

A HIPAA BAA is a contract that works to protect PHI in accordance with HIPAA guidelines. HIPAA has always required covered entities to enter into a BAA with their business associates. Now, under the Omnibus Rule, business associates are also required to enter into BAAs with their subcontractors, first degree subcontractors with their subcontractors, and so on down the line.17 Familiarity with HIPAA regulations will help you in executing a thorough and compliant BAA that is tailored to the particularities of the parties’ needs. A general covenant that each party will comply with HIPAA regulations is insufficient to form a satisfactory and enforceable BAA. When it comes to what to include in an agreement, here are a few tips:18 •Be thorough. Prevent disclosure of PHI by defining in the contract how and for what purpose PHI will be used or disclosed.

•Prepare for breaches, security incidents, and cyberattacks. Indicate in the agreement the time frame that business associates are expected to report a security incident, breach, or cyberattack. The quicker the incident is reported, the faster harm can be mitigated.

•Identify what an incident report should contain. A business associate agreement should contain the type of information it should provide in a breach or security incident report. The report should include: • Name of the business associate and its contact information.

• Description of the breach, including the date of the incident and the date

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Vol. 51 No. 3/Summer 2016 The Arkansas Lawyer

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of discovery, if known.

• Description of the type of PHI that was involved in the incident.

• Explanation of how the business associate is investigating the incident and protecting against any further incidents.

•Include an indemnification provision.

Because the Omnibus Rule enforces penalties for noncompliance for business associates based on the acts/omissions of their subcontractors, consideration should be given to including indemnification provisions.

•Conduct workforce training. Ensure the workforce is properly trained on all security policies and procedures, including incident reporting. Provide periodic awareness training in order to keep the workforce up-to-date. Elect an individual to serve as a “security officer” to head up security management policies and procedures and risk assessments.

• Require Cyberliability Insurance.

V. Other Considerations for Law Firms It is important to ensure that your firm’s BAA (for the firm and/or its clients) has been updated to reflect the new compli40

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ance requirements of the Omnibus Rule.

In April of 2016, HHS addressed the most commonly investigated compliance issues: impermissible uses and disclosure of PHI; lack of safeguards of PHI; lack of patient access to their PHI; use or disclosure of more than the minimum necessary PHI; and lack of administrative safeguards of ePHI.19 Covered entities and their business associates continue to suffer hefty consequences for their non-compliance more than three years after the final rule’s inception.

It is also necessary to identify whether your firm is a business associate or subcontractor of a covered entity and identify any of the firm’s potential business associates and subcontractors. If PHI has been obtained by your firm, in addition to having a BAA with the client who gave you the PHI, you might need to execute a BAA with the subcontractors that create, receive, maintain, or transmit PHI on your behalf. Take note that even third-party consultants who serve primarily a clerical purpose, such as record scanning, copying, storage, or destruction companies, could qualify as subcontractors. It is up to you, not the covered entity or business associate you represent or the subcontractor you hire, to orchestrate efforts to identify and record how information enters the firm in order to execute BAAs when necessary.

HIPAA can be a formidable regulatory gauntlet. The days of sluggish enforcement efforts of the OCR have come to an end.

The likelihood that you or your client will face a HIPAA investigation or audit will continue to grow. Lawyers must maintain a good working knowledge of HIPAA compliance requirements to protect their clients and themselves.

Endnotes: *The author would like to thank her law clerk Tess Stewart for assistance with the drafting of this article.

1. HIPAA was passed on August 21, 1996, with the goals of giving more Americans access to health insurance coverage and making the delivery of healthcare more efficient. In response to an evolving technological landscape, Congress mandated that HIPAA implement nationwide security and privacy measures to ensure the confidentiality of patient health information—referred to as the Security Rule and the Privacy Rule. HIPAA also established penalties for entities in violation of these rules—the

Enforcement Rule.

2. In 2009, Congress passed the Health Information Technology for Economic and Clinical Health Act (HITECH) as part of the larger American Recovery and Investment Act. HITECH enforced fines and updated policy to encourage healthcare providers to use Electronic Health Records (EHR). Pursuant to HIPAA and HITECH, HHS issued final rules requiring additional compliance efforts of covered entities and business associates in 2013.

Collectively, those final rules are known as the “Omnibus Rule” due to the large number of topics they cover.

3. See 45 C.F.R. § 160.103.

4. See 45 C.F.R. § 164.306 (stating the Security Rule is applicable to business associates); 45 C.F.R. § 164.502 (stating that the Privacy Rule is applicable to business associates).

5. See 45 C.F.R. § 164.306.

6. See Guidance on Risk Analysis, www. hhs.gov (explaining that conducting periodic risk assessments is the cornerstone of compliance with the Security Rule).

7. See 45 C.F.R. § 164.308(a)(2); see also 45 C.F.R. § 164.530(a)(2) (requiring covered entities and business associates to also designate a “privacy official” to ensure compliance with the Privacy Rule; the security official and the privacy official could be the same individual depending on the needs of the organization).

8. See 45 C.F.R. § 164.502.

9. There are some exceptions to the Minimum Necessary Standard that depend on who the disclosure is made to—the disclosure is made to the individual (the patient in most cases), to a health care provider for treatment, to the Secretary of HHS for investigative purposes, or when it is made according to an authorization. 45 C.F.R. § 164.502(b)(2).

10. See 45 C.F.R. § 160.103.

11. See 45 C.F.R. § 160.103(3)(iii) (“Business associate includes: (iii) a subcontractor that creates, receives, maintains, or transmits protected health information on behalf of the business associate.”).

12. Id.; see also 78 Fed. Reg. 5591 (January 25, 2013).

13. Under the regulatory and statutory changes, a business associate is directly liable: •for impermissible uses and disclosures of protected health information; see 45 C.F.R.

§ 164.502(a)(3).

•for a failure to provide breach notification to the covered entity when unsecured protected health information is lost or inappropriately accessed; see § 164.410.

•for a failure to provide access to a copy of electronic protected health information to either the covered entity, the individual, or the individual’s designee (whichever is specified in the business associate agreement); see § 164.502(a)(4)(ii).

•for a failure to disclose protected health information where required by the Secretary of the Centers for Medicare & Medicaid Services (“CMS”) to investigate or determine the business associate’s compliance with the HIPAA Rules; see § 164.502(a)(4) (i).

•for a failure to make reasonable efforts to limit PHI to the minimum necessary to accomplish the intended purpose of the use, disclosure, or request; see § 164.502(b).

•for a failure to enter into business associate agreements with subcontractors that create or receive PHI on their behalf; see § 164.502(e)(1)(ii).

•for a failure to provide an accounting of disclosures of protected health informa-

tion, and last, but far from least, for a failure to comply with the requirements of the Security Rule; see 76 Fed. Reg. 31426 (May 31, 2011).

•for a failure to comply with the requirements of the Security Rule; see Section 13401 of the HITECH Act (providing that the Security Rule’s administrative, physical, and technical safeguards requirements in §§ 164.308, 164.310, and 164.312, as well as the Rule’s policies and procedures and documentation requirements in § 164.316, apply to business associates).

14. Although the Final Rule recognizes the “conduit exception,” HHS has made clear that the exception is narrow and only applies to those entities providing mere courier services. “[A] conduit transports [PHI] but does not access it other than on a random or infrequent basis as necessary to perform the transportation service or as required by other law.” 78 Fed. Reg 5566.

15. The Omnibus Rule adds “business associate” to the following provisions of HIPAA’s Enforcement Rule: 45 C.F.R. §§ 160.300; 160.304; 160.306(a) and (c); 160.308; 160.310; 160.312; 160.316; 160.401; 160.402; 160.404(b); 160.406;

160.408(c) and (d); and 160.410(a) and (c). This was done to implement those sections of the HITECH Act that impose civil monetary penalties on business associates for certain HIPAA violations.

16. See 45 C.F.R. § 160.402(c)(2) (reading, “A business associate is liable, in accordance with the Federal common law of agency, for a civil money penalty for a violation based on the act or omission of any agent of the business associate, including a workforce member or subcontractor, acting within the scope of the agency.”).

17. See 45 C.F.R. § 164.502(e)(1).

18. Also, sample provisions for a BAA have been published on the HHS website at, http://www.hhs.gov/ocr/privacy/hipaa/ understanding/coveredentities/contractprov. html.

19. See http://www.hhs.gov/hipaa/forprofessionals/compliance-enforcement/data/ enforcement-highlights/index.html. 

Career Opportunity The McDaniel Law Firm in Jonesboro is looking for an associate attorney with three or more years of experience in personal injury and/or medical malpractice experience. Applications welcome from plaintiff and defense lawyers, and all applications will be held in strictest confidence and no references checked without specific approval. Pay structure negotiable for salary and/or salary and percentage of revenue generated.

Resumes should be submitted via e-mail only addressed to brett@mcdaniellawyers.com or bobby@mcdaniellawyers.com.

McDaniel Law Firm, PLC 400 S. Main Street, Jonesboro, AR 1-870-336-4747

Vol. 51 No. 3/Summer 2016 The Arkansas Lawyer

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practice tip

The Arkansas Supreme Court Clarifies the Final-Order Doctrine in Divorce Cases

By Martha Tucker Ayres Finality First. These words should echo in your mind soon after your client in a divorce case receives an adverse property-division decision in circuit court and wants to appeal the division. The “finality first” phrase will remind you to ensure that you have a final, appealable order from the circuit court before you undertake the time and expense associated with an appeal. The main purpose for this practice tip is to alert the bench and bar that the Arkansas Supreme Court has clarified when a circuit court has issued a final order in divorce cases. The court has recently done so in the Davis, Kelly, and Moore decisions.1 A final-order issue has typically arisen when a circuit court gives the divorcing parties a set number of days to agree on a division of property, and if one cannot be reached, then the property is directed to be sold and the proceeds divided.2 The court of appeals had routinely held that this sort of directive in a divorce decree lacked the certainty needed to appeal it because it left “matters undecided between the parties and tasks yet to be performed.”3 This was true even when the division of property was not an issue on appeal.4 The result was a dismissal of the appeal without prejudice. The rub, of course, is that circuit courts and parties intend for these orders (usually divorce decrees) to be final.

While the need for a final order is still one of the pillars supporting appellate jurisdiction, the supreme court turned to a fresh approach when considering the finality of a divorce decree in Davis v. Davis.5 The certified question answered in Davis was whether a divorce decree is final and therefore appealable when it contains language permitting the parties to agree on a division of marital property prior to a sale, or language permitting the parties to agree on the details of a sale.6 The supreme court said yes. In the court’s words, allowing parties “a period to work out their differences” does not automatically destroy the finality of an order.7

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It is enough, for finality purposes, that the divorce decree provide a definitive, judicially enforceable resolution if the parties cannot reach an agreement within a prescribed time.8 Keep in mind that the usual 30-day deadline to appeal starts once a final order has been entered.9 Here are four examples from recent cases where the supreme court found there was a final and appealable order. These examples show how a divorce decree can be a final order for purposes of appeal while still giving the parties flexibility in taking the practical steps needed to divide property under realworld conditions.

Example 1:10 •All marital property is to be sold at public auction within 90 days after the entry of the divorce decree.

•The proceeds are to be applied to debt and remainder to be divided equally between the parties.

•The court “shall honor any agreement as to personal property.”

•Any personal property upon which parties cannot agree will be sold by the court clerk and the proceeds divided.

Example 2:11 •The parties’ home is to be listed for a period of six months and in the event a contract for sale is not entered within the six months, either party may petition the Court to have the residence sold via commissioner’s sale.

Example 3:12 •The parties’ home is listed for sale until a certain date. If the home sells during this listing period, the parties each receive one-half of any net proceeds.

•If the home does not sell by a certain date, then the home will be sold “by auction on the courthouse steps” and the net proceeds divided equally.

Example 4:13 •The marital home will be sold “upon such terms and conditions as to which the parties may agree.”

•If parties cannot agree within 180 days, then either party “is free to petition to the court to have the same sold by the clerk of this court.”

To sum it up, the basic rules about finality still apply to divorce decrees—meaning, primarily, that the order must conclude the parties’ rights and carry out the court’s directive.

But since Davis, Kelly, and Moore, circuitcourt orders that were once deemed non-final for appellate purposes may now be addressed on their merits, sooner rather than later.

Endnotes: 1. Davis v. Davis, 2016 Ark. 64, Kelly v. Kelly, 2016 Ark. 72, and Moore v. Moore, 2016 Ark. 105.

2. See Sherman v. Boeckmann, 2015 Ark. App. 566.

3. Sanders v. Passmore, 2014 Ark. App. 237, at 2.

4. E.g., Graves v. Graves, 2014 Ark. App. 331.

5. Davis v. Davis, 2016 Ark. 64.

6. Davis v. Davis, 2016 Ark. 64, at 3.

7. Id. at 8.

8. Id. at 9.

9. See Ark. R. App. P.–Civil 4(a) (2015).

10. Id. at 6.

11. Kelly v. Kelly, 2011 Ark. 259, at 5, 381 S.W.3d 817, 822.

12. Kelly v. Kelly, 2016 Ark. 72, at 2.

13. Moore v. Moore, 2016 Ark. 105, at 3.

Martha Tucker Ayres is a law clerk for Judge Brandon J. Harrison on the Arkansas Court of Appeals.

APPELLATE NERDS. LEAvE ThE NERDy woRk To uS. Attorneys Andy Taylor and Tasha Taylor are experienced handling appeals before the Arkansas Supreme Court, the Arkansas Court of Appeals, and the Eighth Circuit Court of Appeals.

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Book review

Mass Communication Law In Arkansas

by Stephen D. Ralph and Bruce L. Plopper. New Forums Press, 2016, 216 pages, $36.95.

Book Review by Kathryn C. Fitzhugh The latest edition of Mass Communication Law in Arkansas (2016), now in its ninth edition, would be a useful addition to the bookshelf of any Arkansas attorney seeking a condensed yet comprehensive reference book covering Arkansas media law. It historically covers both statutory and administrative law as well as covering case law in each area. This book provides easily accessible descriptions of state law governing specific sub-areas of mass communication law.

It provides up-to-date statements of Arkansas law and related cases to support practical application in each area of mass communication law. In addition to fully covering the commonly litigated areas of defamation, freedom of information, and access to courts in Arkansas, it also fully covers specialized areas of Arkansas law such as the right to privacy, student First Amendment rights, recording statutes, and commercial speech.

The book’s nine chapters cover the Arkansas Legal System, Freedom of Expression: Theory and Practice, Defamation, Privacy, News-gathering Issues, Freedom of Information, Media and the Courts, Obscenity, and Commercial Speech and Other Business Concerns. Each chapter has subtopics.

Chapter 4 on privacy serves as one example of the structure of each chapter. The chapter begins with a brief review of the roots of the privacy torts in the United States. A brief discussion of the history of Arkansas’s gradual adoption of the privacy torts follows. The authors describe each of the privacy torts, which are as follows: intrusion; publication of private, embarrassing facts; false light; appropriation; and lastly, the right to publicity, which “involves control of one’s fame, and at times, interference with one’s economic ability to make money.” The authors examine major cases of each privacy tort. A discussion of constitutional and statutory provisions follows. At the end of each chapter they provide a list of the references used as authority for the chapter’s text. The other chapters have the same basic structure.

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

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As a reference librarian and advanced legal research professor in a law school and county bar library, one of my tasks includes watching for new Arkansas legal publications that will be useful enough to purchase.

What makes this particular book valuable?

This book accomplishes the traditional role of a secondary source. That is, it is not primary law but instead leads one to primary law. It clarifies primary law as well. It can serve as a learning tool for those who did not take a class in mass communication law, First Amendment law, or related courses. It can serve as a reviewing tool for those who have forgotten what they once knew about the topics covered in the book. It can serve as a reference book for authoritative definitions. In addition, all lawyers should know more than the basics of defamation, the privacy torts, freedom of information law, and the material in the remaining chapters, because they will likely have more than one client who will eventually have to bring or defend a legal action concerning at least one mass communication issue. Knowing how to avoid getting entangled in a negative mass communication issue is useful as well.

I highly recommend Mass Communication Law in Arkansas to Arkansas attorneys for the reasons stated above.  Kathryn C. Fitzhugh, M.S.L.S., J.D., is a Professor of Law Librarianship and Advanced Legal Research at the UALR Bowen School of Law and Reference and Special Collections Librarian at the UALR Pulaski County Law Library.

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DISCIPLINARY ACTIONS Judicial Discipline & Disability Commission Actions On May 9, 2016, the Arkansas Judicial Discipline and Disability Commission announced the resignation and permanent removal from office of Cross County District Court Judge O. Joseph Boeckmann, Jr., effective immediately.

This will conclude JDDC Case Numbers #14-310, #14-312, #14-313, #14-314, #15298, #15-299, #15-311 and #15-353 due to his removal from office.

On July 15, 2016, the Arkansas Judicial Discipline and Disability Commission announced that an agreed Letter of Informal Adjustment has been issued to former judicial candidate, attorney James L. Williams II, of Jefferson County, in Commission case #16-149.

Attorney Disciplinary Actions

Final actions from April 1 - June 30, 2016, by the Committee on Professional Conduct.

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

SURRENDER: JAMES PAUL CLOUETTE, Bar No. 74025, of Little Rock, had his petition to surrender license accepted by the Court on June 23, 2016, in Case No. D-16-530.

As a felon, Clouette surrendered in lieu of disciplinary proceedings for serious misconduct after entering a plea to a felony possession of controlled substance charge in Pulaski County Circuit Court No. 60CR15-1816 arising out of an incident on April

1, 2015. This was Clouette’s second such charge, the previous one resulting in a reprimand issued by a committee panel and affirmed by the Court on a second appeal in Case No. 11-770 on January 26, 2012, at 2012 Ark. 21.

MICHAEL K. Redd, Bar No. 87141, of Fort Smith, had his petition to surrender license accepted by the Court on May 5, 2016, in Case No. D-16-354. In his petition to surrender license, Redd, also licensed in Oklahoma and also a CPA in both states, acknowledged he had wrongfully converted over $100,000 from the law firm where he was the managing partner.

SUSPENSION (STAYED): DANA A. REECE, Bar No. 87142, of Little Rock, Arkansas, in three separate cases that were combined into one order, involving clients Osborn (to obtain a pardon), James (a divorce) and Fair (a divorce), on April 11, 2016, agreed to a three-month license suspension which was stayed during a supervised probation period of 24 months, plus $1,300 in case costs, or violations of Rules 1.3, 1.4(a)(3), and 1.16(d) in Osborn, 1.3, 1.4(a)(3), and 1.4(a)(4) in James, and 1.15(d) and 3.4(c) in Fair. Osborn paid Reece $5,000 in fees and later terminated Reece basically for non-communication. He requested a full fee refund, which was only made after filing of the OPC Complaint and the panel ballot vote decision. After receiving his $1,600 fee, Reece failed to perform legal services for James. He sued her in district court and obtained a $1,600 judgment on which she failed to pay the last $1,100. Reece paid James the $1,100 after she was served with the OPC Complaint.

Fair paid Reece $3,050. When the two met to discuss the upcoming hearing Reece was unprepared. Fair terminated Reece’s services. Reece failed to make a fee refund or deliver her file to Fair. Through counsel, at the start of her hearing Reece made a plea offer (not a consent proposal) by which she would admit certain rule violations and accept a specific sanction, which offer the hearing panel then accepted. A supervising attorney for her probation has been approved by OPC.

REPRIMAND: EDWARD N. COE, JR., Bar No. 98049, of Greenwood, in Committee Case No. CPC 2004-150, by a Consent Findings & Order filed June 17, 2016, for violations of Model Rules 1.4(a), 1.16(d), 3.4(c) and 8.4(d) was sanctioned with a reprimand, $100 costs, and ordered to pay $750 restitution to Linda Taylor, an expert witness he engaged in a case. The Kirkpatricks hired Coe, then of Russellville, in early 2003 to represent them in criminal charges filed in Randolph County Circuit Court and paid him a total of $6,000.00, being a flat fee of $5,000.00 and $1,000.00 for a handwriting expert, if needed. Coe entered his appearance for both on February 28, 2003. After a suppression hearing and an adverse ruling issued June 30, 2003, the Kirkpatricks claimed they had difficulty contacting Coe. From court documents, it appears Coe’s last court appearance for them was around November 4, 2003. Their jury trials were reset for March 1, 2004, and Coe allegedly failed to notify them of this court date and

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DISCIPLINARY ACTIONS Coe failed to appear for court that date. The Kirkpatricks also failed to appear for trial March 1, 2004, and both were later arrested for failure to appear. The court appointed new counsel for each Kirkpatrick. Coe claimed the Kirkpatricks were absconders during this period. Coe retained Conway handwriting expert Linda Taylor for the Kirkpatrick case. She provided services and rendered a report. Her invoice for $600 was not paid. She sued Coe in district court in Conway and obtained a judgment for $698.00, which was never paid. As part of a consent, Coe agreed to pay Taylor $750.00 as restitution for her services and judgment and accept a reprimand. Coe was out of state from about 2005-2015.

BENJAMIN C. LIPSCOMB, Bar No. 88131, of Rogers, in Committee Case No. CPC 2015-105, by Consent Findings & Order filed May 20, 2016, for violations of Rules 1.7(a), 8.4(a), 8.4(b), and 8.4(c), agreed to accept a reprimand and pay a $4,000 fine. Lipscomb served as the elected City Attorney for the City of Rogers, Arkansas, from October 1997, until he resigned on January 30, 2015. Lipscomb resided in and voted in Rogers until early 2011 when he relocated to a residence outside the Rogers city limits, leasing out his Rogers dwelling to tenants. Thereafter Lipscomb illegally voted in more than one election at his former voting precinct inside the city of Rogers and continued to serve as elected city attorney, and was even reelected in 2014 although a city ordinance in effect since at least 2010 required the city attorney to be a resident of the city.

On July 19, 2011, Libscomb executed a Homestead Tax Credit document, under criminal penalty for a false statement, claiming his principal place of residence was 6 Dearhurst Road, Rogers, AR, which location is outside the city limits of the City of Rogers, Arkansas. Even though ineligible to hold his office, Libscomb continued to draw and accept his salary and benefits, approximately $150,000 per year, as Rogers City Attorney after May 2011, until the end of his elected term in December 2014, a period of over three and a half years.

As a result of issues that arose between Lipscomb and other Rogers officials, a 50

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decision was made to redefine the duties and responsibilities of the Rogers City Attorney’s Office. City ordinances which were supported at the time by both the mayor and Lipscomb were enacted by the city council on September 24, 2014. These ordinances did not reduce the salary and benefits of the elected city attorney. On November 5, 2014, Lipscomb filed suit against the Mayor and Council members of the City of Rogers, as No. 14-CV-5338, in the United States District Court for the Western District of Arkansas. Lipscomb alleged the new ordinances were a “Bill of Attainder” in violation of the United States Constitution, and an effort to unlawfully strip him of his full authority as elected city attorney. The City defendants answered, in part, that Lipscomb was not a resident of the city and not legally qualified to hold the office of city attorney.

During late 2014, Lipscomb had a Rogers city employee who worked full-time in his City Attorney office devote office time and resources to preparing documents in his private matters, including pleadings in his federal case against the city. On his own time after hours and from his city office, Lipscomb composed an FOIA request to the city seeking information and copies of communications directly related to his lawsuit against the city. In December 2014, Lipscomb issued a memo related to Rogers District Court announcing henceforth that criminal case plea bargaining basically would cease in that court. For years Lipscomb had been appointed a deputy prosecuting attorney for Benton County to prosecute state misdemeanors in Rogers.

The Benton County Prosecutor-Elect released an announcement that when he took office in January 2015, he would not commission Lipscomb as a deputy prosecuting attorney because of his stated new policy of no plea bargaining.

At a hearing in January 2015, Mayor Hines testified that prior to the enactment of the new ordinances the level of dysfunction in the office of City Attorney “was getting out of control” and the new ordinance was a way of mitigating that dysfunction. On January 23, 2015, the District Court filed an Opinion denying Lipscomb’s Motion for Preliminary Injunction, finding that every

witness at the hearing, including Lipscomb, testified that he advocated the enactment of the ordinances to city council members.

A settlement conference which resulted in an agreement which was approved by the Rogers City Council. An order dismissing the case with prejudice was entered January 29, 2015, and the city issued a check, net of taxes and benefits, for $253,222.49 in full settlement with Lipscomb, which included his salary and benefits as City Attorney through the end of 2016, a “buyout.” Lipscomb then resigned from the office of City Attorney. Lipscomb’s conduct during the past several years led to negative publicity for the legal profession and his client the City of Rogers.

CAUTION: EVERETT O. MARTINDALE, Bar No. 74100, of Little Rock, in Committee Case No. CPC 2016-033, by Consent Findings and Order filed May 20, 2016, for a violation of Rule 8.4(d), was cautioned for his conduct in the representation of appellant Walker in an appeal of a domestic relations matter. Martindale represented Walker in his divorce action, where the trial court terminated Walker’s payment of alimony to his ex-wife, modified his child support, and awarded the ex-wife real property in lieu of the alimony, finding that Walker had purposefully wasted marital assets. Martindale appealed for Walker. The record was due to be filed with the Supreme Court Clerk 90 days from the filing of the first Notice of Appeal on March 11, 2015.

Martindale filed a Motion for Extension of Time to file Appeal as the court reporter needed more time to prepare the record. On March 11, 2015, the court entered its Order granting the extension of an additional 30 days, making the record due to be filed by Friday, April 10, 2015. On Monday, April 13, 2015, Martindale untimely tendered the record to the Clerk. Martindale filed a Motion for Rule on the Clerk, stating he miscalculated the filing date. On May 14, 2015, the Arkansas Supreme Court entered its Formal Order denying the Motion for Rule on the Clerk, ending his client’s right to an appeal.

DISCIPLINARY ACTIONS JOSHUA “JOSH” SANFORD, Bar No. 2001037, of Russellville and Little Rock, in Committee Case No. CPC 2013040, by Consent Findings & Order filed June 17, 2016, for violations of Rules 1.5(a), 1.15(a)(1), 1.15(a)(5), and 1.15(b) (1), was cautioned and fined $1,000. In January 2007, Sanford began representing Henry W. H. Mills (“Henry”), then age 22, who intervened in a child-support action between his parents, Debra Darter and Henry W. Mills (“Mills”). Sanford contracted to represent Henry for an initial fee of $825.00 plus “the first one third of the amount of any judgment obtained, without reduction for costs and expenses incurred.”

This fee arrangement was memorialized in a document entitled “Mixed-Fee Attorney Contract,” which was signed by Henry.

On February 12, 2008, the Circuit Court awarded judgment in favor of Henry against his father Mills for $13,018.80. The court also awarded a statutory attorney’s fee of $1,100.50. Sanford appealed the judgment, arguing that the trial court had improperly calculated the interest on the unpaid child support and that the court’s award of the statutory minimum of 10 percent (for attorney’s fees) was an abuse of discretion. The Court of Appeals held that the trial court had improperly calculated the interest due on Mills’s unpaid child support obligation, and the trial court did not abuse its discretion in awarding the statutory minimum in attorney’s fees.

Sanford argued at the next trial court hearing that his fee agreement with Henry was that Sanford’s fee would be “onethird of the judgment collected,” not the first one-third of the judgment obtained or collected, as Sanford appears to have interpreted and enforced his agreement with Henry. In his appellate submission, Sanford described his fee arrangement with Henry as a contingency fee for one-third of the judgment, never stated as the first onethird of any amount collected. On remand, the trial court awarded judgment in favor of Henry against Mills for $29,481.74. In July 2009, an order was filed directing garnishment of the wages of Mills. The garnishee, Yell County, was directed to pay 55% of Mills’s net pay to attorney Josh Sanford.

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In August 2009, a conflict arose which Sanford believed required him to withdraw from his representation of Henry. On August 24, 2009, Sanford filed a Motion for Withdrawal of Intervenor’s Attorneys stating, “During the course of representation of Intervenor, Mr. Sanford and Sanford

Law Firm, PLLC, acquired a lien over the proceeds of the judgment granted herein in favor of Intervenor.” The motion also stated, “Although Mr. Sanford and Sanford Law Firm, PLLC, are requesting permission to withdraw from representation of Intervenor, the Order should specify that garnishment

Vol. 51 No. 3/Summer 2016 The Arkansas Lawyer

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checks issued herein should continue to come to the Sanford Law Firm, PLLC, and the order should reflect the ongoing validity of the lien.” The motion does not make any reference to a dollar amount for the asserted lien. Sanford never obtained a ruling on the motion. In March 2011, Sanford agreed with Mills that Mills would pay $10,000.00 in exchange for Sanford releasing his lien on the judgment obtained on behalf of Henry.

Mills wrote a check to Sanford Law Firm for $10,000 and wrote “paid in full” on it. A Release and Satisfaction of Judgment Lien, signed by Sanford individually and on behalf of Sanford Law Firm, was filed, purporting to release and forever discharge Mills from the judgment lien in favor of Sanford that was asserted or could have been asserted in the litigation docketed as Debra Darter v. Henry Wayne Mills v. Henry Mills. On March 18, 2011, Sanford filed a Satisfaction of Judgment Lien, which stated that the judgment lien of Sanford had been satisfied in full. A Notice of Termination of Garnishment was filed, purporting to terminate the garnishment against Yell County because the Sanford Law Firm “was

only pursuing the collection of its lien in this case, and the same has been satisfied.”

When the release, satisfaction of lien, and notice of termination of garnishment were filed, Sanford was still the attorney of record for Henry and the judgment awarded to Henry remained unsatisfied.

Sanford understood that Mills believed he was paying Sanford $10,000 to “get him [Sanford] off his back” so that Sanford would quit trying to collect the judgment in favor of Henry. After discovering that the $10,000 had not fully settled the judgment against him, Mills filed a grievance with the Office of Professional Conduct (OPC) against Sanford on November 15, 2012. On January 22, 2013, Henry’s new counsel, Veach, delivered to Sanford a proposed

Complaint in which Henry would sue Sanford. Sanford responded the same day by e-mail and asked Veach to make a monetary demand on Sanford. By his check dated the same day, Sanford paid Veach $12,000.00 to settle Henry’s claim against Sanford and Sanford’s law firm. On March 12, 2013, Sanford wrote a second letter responding to additional OPC inquiries regarding the $10,000 payment by Mills, attaching a copy of a cancelled check, dated January 22, 2013, made to the order of Peel Law Firm Trust Account for $12,000, with the words “settlement of H.W. Mills claim” written on it. An order substituting The Peel Law Firm as counsel for Henry was filed on February 12, 2013. 

YOU ARE THE EXPERTS Contact the Association if you have article ideas for The Arkansas Lawyer magazine.

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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, 2016 through July 15, 2016.

The Arkansas Bar Foundation welcomes the following new Fellows:

In Memory of Anthony Williams Bartels, Jr. Judge Cathi Compton and Judge Bill Wilson Michael R. Gott Sharon and Fred Ursery In Memory of Senator Wayne Dowd John C. Calhoun Judge Cathi Compton and Judge Bill Wilson Mike Wilson In Memory of Judge Curtis L. Huckaby Michael R. Gott In Memory of Randall W. Ishmael Michael R. Gott Hyden, Miron & Foster, PLLC R. Bryant Marshall Tom D. Womack In Memory of Judge Graham Partlow Michael R. Gott Sally and Jim McLarty Sue and Judge John Plegge Roscopf & Roscopf, P.A. In Memory of Elton A. Rieves III Hayden and Gordon Rather Belinda E. Rubens

Randy Hall Jamie Huffman Jones Judge Mary Spencer McGowan

2016 - 2017 Officers President Jeffrey McKinley Vice President Judge John N. Fogleman Secretary-Treasurer Jason B. Hendren

Happy 100th Birthday David Solomon, of Helena, celebrated his 100th Birthday on July 19, 2016.

His family and friends in the community gathered to celebrate with him.

Honoraria, Scholarship Contributions and Gifts

Save the Date In honor of David Solomon’s 100th Birthday Designated to the David Solomon Scholarship Fund David Solomon’s sons and their families In honor of David Solomon’s 100th Birthday Jeffrey and Lester McKinley Other Contributions to the Foundation Judge Robert Dawson Jim Van Dover Frank B. Sewall

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Foundation Scholarship Event A Celebration of Excellence and Tradition Friday, October 28, 2016

IN MEMORIAM Virgil Anthony William Bartels Jr. of Jonesboro died June 7, 2016, at the age of 75. He attended Montrose High School, graduated from Rockhurst University in 1963, and finished the University of Arkansas School of Law in 1967. He practiced law in Jonesboro and found his niche in Social Security Disability Law. He was a member of the Arkansas Bar Association where he served on the House of Delegates and the Member Insurance and Social Security Law Committees. Anthony was a generous contributor of $100,000 to the Arkansas Bar Center Campaign in 2006, helping to make it possible to purchase and renovate the current Arkansas Bar Center.

of the Texarkana Bar Association. He was a member of the Arkansas Bar Association where he was recently honored for practicing law in Arkansas for 50 years.

Judge Curtis Lloyd Huckaby of Jonesboro died June 21, 2016, at the age of 65. Curt was born in Jonesboro and lived most of his life in the Jonesboro area.

Curt earned a Bachelor degree in history from Sacramento State University in Sacramento, California, in 1974; Master degree in history from California State University in Chico, California, in 1977; and a Juris Doctorate from the University of Arkansas at Fayetteville, in 1982. Curt served as a District Judge in Jonesboro until his retirement for medical reasons earlier this year. Among Curt’s many accomplishments were his service on the Bench and his contributions to the successful Arkansas State University Rugby program. He was a member of the Arkansas Bar Association.

Sandra Trawick Berry of Forrest City died April 19, 2016, at the age of 70. She went to Central High School and received her undergraduate degree at Baylor University before completing law school at the University of Arkansas Law School-Little Rock. She Crittenden started her career as an attorney in the Public Defenders Office of Pulaski County. SandraCounty (Evening) Times also proctored the Arkansas Bar Exam in Little West Memphis,AR Rock for many years.

Randall William Ishmael of Jonesboro died April 26, 2016, at the age of 78. He graduated from Arkansas State University and George Washington University Circ. 8021 Law School in 1966. He From Page: Wayne Dowd of received his CPA license 1 Texarkana died June in 1962. He began his law career with the 6/22/2016 16, 2016, at the age of 21107 Barrett, Wheatley, Smith and Deacon firm 74. He graduated from where he was named partner in 1968. He Texarkana High School opened his own firm in 1976. Randy was an in 1959, attended two active member of the Arkansas Bar Association years at Texarkana where he served on the House of Delegates, the College and two years Section of Taxation, Personnel Committee, at Southern State and the Probate Law Section. He was a College in Magnolia, Arkansas, graduating Fellow of the Arkansas Bar Foundation and with a Bachelor of Business Administration served as President of the Foundation. He in January of 1964. Thereafter, he attended was a Fellow American College of Trust and the University of Arkansas Law School in Estate Counsel. He was also a member of Fayetteville, Arkansas, and graduated with an the NEA Bar Association and the Craighead LLB Degree in July of 1966. He served as County Bar Association where he held all State Senator for several counties in Southwest offices including president. Other organizaArkansas from 1978 through 2000. He served tions include NEA Estate Planning Council, as Chairman of the Judiciary Committee, Fellow of American College Trust and Estate Rules Committee, and as President Pro Tem of Council, and Arkansas Society of Certified the Senate 1997-1999. He was a former City Public Accountants. He served his country in Attorney for the City of Texarkana, Arkansas, the U.S. Air Force from 1957-1960 where he former Deputy Prosecuting Attorney for the took classes in preparation to return home to 8th Judicial District and a former President college.

Circuit Judge (retired) Graham Partlow of Blytheville died July 6, 2016, at the age of 84. He graduated from Blytheville High School in 1949 and attended the University of Arkansas, graduating in 1954 with a Juris Doctorate degree. He was commissioned a 2nd Lieutenant in the U.S. Army in 1953 and upon graduation, entered active duty for two years. Upon his release from active duty, Judge Partlow continued serving in the U.S. Army Reserves until he was honorably discharged in 1968. Judge Partlow served as Circuit Judge for the Second Judicial District of Arkansas for 23 years prior to his retirement.

He was a member of the Arkansas Judicial Council and was president of the council from 1997-98. He was appointed to and served on the Arkansas Supreme Court committee that drafted the Judicial Code of Conduct and on committees governing court reporters and the child support enforcement guidelines. Prior to his election to the bench, Judge Partlow served as Blytheville city attorney, deputy prosecuting attorney in Mississippi County, and in private practice with John Mayes. He was a member of the Arkansas Bar Association where he served on the Executive Council and House of Delegates.

Elton A. ‘’Bubba’’ Rieves, III, of Mountain View died June 20, 2016, at the age of 80. He attended Castle Heights Military Academy and Southern Methodist University (B.B.A., 1957).

He graduated from the University of Arkansas Law School in 1960. He was a member of the Arkansas Bar Association where he served on the House of Delegates and the Editorial Board for Handbooks. He was a Fellow of the Arkansas Bar Foundation. He was a member of the Crittenden County and American Bar Associations; American Judicature Society; Federation of Insurance and Corporate Counsel; Association of Insurance Attorneys; Arkansas Association of Defense Counsel (President 1988-1989); and Fellow, American College of Trial Lawyers.

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

Vol. 51 No. 3/Summer 2016 The Arkansas Lawyer

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