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PUBLISHER Arkansas Bar Association Phone: (501) 375-4606 Fax: (501) 375-4901 EDITOR Anna K. Hubbard EXECUTIVE DIRECTOR Karen K. Hutchins EDITORIAL BOARD Jim L. Julian, Chair Judge Wiley A. Branton, Jr. Clark J. Brown Keith L. Chrestman Judge Brandon J. Harrison Anton Leo Janik, Jr. Philip E. Kaplan Drake Mann Gordon S. Rather, Jr. David H. Williams Teresa M. Wineland OFFICERS President Jim Simpson Board of Governors Chair Marie-Bernarde Miller President-Elect Brian H. Ratcliff Immediate Past President Charles L. Harwell President-Elect Designee Eddie H. Walker, Jr. Secretary F. Thomas Curry Treasurer Shaneen K. Sloan Parliamentarian Leon Jones, Jr. Young Lawyers Section Chair Cliff McKinney BOARD OF GOVERNORS Seth T. Bickett Earl Buddy Chadick, Jr. Suzanne G. Clark Frances S. Fendler Amy Freedman Buck C. Gibson Amy L. Grimes Denise Reid Hoggard Don Hollingsworth Jeffrey Ellis McKinley Wade T. Naramore Laura E. Partlow Jerry D. Patterson Brant Perkins Troy A. Price John C. Riedel Brian M. Rosenthal Jerry L. “Jay” Shue, Jr. Shaneen K. Sloan Brian A. Vandiver Danyelle J. Walker LIAISON MEMBERS Judge Gary M. Arnold Harry Truman Moore Karen K. Hutchins Judge Mark A. Pate Paul W. Keith Richard L. Ramsay Jack A. McNulty Laura H. Smith The Arkansas Lawyer (USPS 546-040) is published quarterly by the Arkansas Bar Association. Periodicals postage paid at Little Rock, Arkansas. POSTMASTER: send address changes to The Arkansas Lawyer, 2224 Cottondale Lane, Little Rock, Arkansas 72202. Subscription price to non-members of the Arkansas Bar Association $35.00 per year. Any opinion expressed herein is that of the author, and not necessarily that of the Arkansas Bar Association or The Arkansas Lawyer. Contributions to The Arkansas Lawyer are welcome and should be sent to Anna Hubbard, Editor, All inquiries regarding advertising should be sent to Editor, The Arkansas Lawyer, at the above address. Copyright 2014, Arkansas Bar Association. All rights reserved.

The Arkansas

Lawyer Vol. 49, No. 1


12 What Do You Do When Nothing Seems to Work: An Evaluation and Suggested Approach to Addressing the Diversity Issue in the Legal Profession Dean Michael Hunter Schwartz and JB Smiley Jr. 16 Increasing Diversity in Arkansas’s Law Schools and Our Profession Dean Stacy Leeds 18 Diversity in the Legal Profession—A Time of Challenge Transcript from a Panel Discussion 36 Book Review of Private Placements and Limited Offerings of Securities: A Guide for the Arkansas Practitioner A. Heath Abshure 38 Legislative and Case Law Ties That Bind Act 649 of 2003 with Act 1116 of 2013 Brian G. Brooks 39 The Uniform Contribution Among Tortfeasor’s Act As Amended by Act 1116 of 2013: Civil Justice and Apportionment Part II— Time to Trust the Jury Scott M. Strauss 43 The Empty Chair Act—A Critique of Act 1116 Benjamin McCorkle 46 The Aging Lawyer: Dealing with Cognitive Impairment in Arkansas’s Legal Community Sarah Cearley 48 Thomas J. Lacey: Superior Court Judge and Supreme Court Justice of Arkansas Judge J.W. Looney Cover photo of the Martin Luther King Jr. memorial: credit to BIGSTOCK, by RUSSW Contents Continued on Page 2

Lawyer The Arkansas

in this issue

Vol. 49, No. 1

Association News


A Call to Leadership


2013-2014 Board of Governors


Member Spotlight-Members in the Military


CLE Calendar


Judicial Discipline & Disability Commission Actions


Attorney Discipline Actions


In Memoriam


Arkansas Bar Foundation Memorials and Honorarium


Classified Advertising


columns President’s Report


Jim Simpson

Young Lawyers Section Report


J. Cliff McKinney

Your Name in Print The Arkansas


A publication of the

Arkansas Bar Association

Vol. 48, No. 1,Winter 2013 online at

For information on submitting articles for publication, go to thearkansaslawyermag or email

Inside: ArkBar Judges & Lawyer Legislators Trial by Jury Generations of Attorneys

Arkansas Bar Association

2224 Cottondale Lane Little Rock, Arkansas 72202

HOUSE OF DELEGATES Delegate District A-1: Jon B. Comstock, Andrew T. Curry, Angelia Esparza Muldoon, Kristin L. Pawlik, Vicki S. Vasser Delegate District A-2: Chad L. Atwell, Suzanne G. Clark, William Fitzgerald Clark, Casey D. Copeland, Boyce R. Davis, Amy M. Driver, Bob Estes, Matthew L. Fryar, Leon Jones, Jr., Joshua D. McFadden, Curtis L. Nebben Delegate District A-3: Aubrey L. Barr, C. Michael Daily, Lisa-Marie France Norris, Colby T. Roe, Samuel M. Terry Delegate District A-4: Erik P. Danielson Delegate District A-5: Wade A. Williams Delegate District A-6: Jonathan E. Kelley Delegate District A-7: Samuel J. Pasthing Delegate District B: John T. Adams, Amber Wilson Bagley, Eric Scott Bell, Bart W. Calhoun, Frankianne E. Coulter, Grant M. Cox, Jason W. Earley, Edie Ervin, Kenya J. Gordon, Stephanie M. Harris, Jeffrey W. Hatfield, James E. Hathaway III, Christopher Heil, Matthew R. House, Amy Dunn Johnson, Jamie Huffman Jones, Paula Juels Jones, William C. Mann III, Patrick W. McAlpine, J. Cliff McKinney, Chad W. Pekron, Gwendolyn Rucker, Shaneen K. Sloan, Jonathan Q. Warren, J. Adam Wells, David H. Williams, Thomas G. Williams, George R. Wise, Jr., Shana R. Woodard, Kim Dickerson Young Delegate District C-1: Roger U. Colbert Delegate District C-2: Michelle C. Huff Delegate District C-3: Keith L. Chrestman, Roger McNeil, Jason Milne Delegate District C-4: Jobi J. Teague Delegate District C-5: Matthew Coe, Albert J. Thomas III, William “Zac” White Delegate District C-6: Michael L. Murphy, Andrea Woods Delegate District C-7: Jimmy D. Taylor Delegate District C-8: Brent J. Eubanks, Jackie Bernard Harris, Jessica S. Yarbrough Delegate District C-9: John R. Byrd, Jr., Jenny Denise Chambers-Lemoine, Leslie J. Ligon Delegate District C-10: Clark D. Arnold, George M. Matteson Delegate District C-11: J. Philip McCorkle, Rodney P. Moore Delegate District C-12: J. Joshua Drake, Michelle M. Strause Delegate District C-13: Cecilia L. Ashcraft, Brian M. Clary Law Student Representatives: Chris Brown, University of Arkansas School of Law; Dominique King, UALR William H. Bowen School of Law


The Arkansas Lawyer

We’ve spent the past 50 years planning for retirement. When did you start planning?

Planning for retirement requires forethought, perception, and a little patience. That’s why the American Bar Association created the aba retirement funds program – a comprehensive and affordable retirement plan built exclusively to address the unique needs of the legal community. Call an ABA Retirement Funds Program Regional Representative today! (866) 812-1510 I I

The Program is available through the Arkansas Bar Association as a member benefit. This communication shall not constitute an offer to sell or the solicitation of an offer to buy, or a request of the recipient to indicate an interest in, and is not a recommendation of any security. Securities offered through ING Financial Advisers, LLC (Member SIPC). The ABA Retirement Funds Program and ING Financial Advisers, LLC, are separate, unaffiliated companies and are not responsible for one another’s products and services. Vol. 49 No. 1/Winter 2014 The Arkansas Lawyer 3 CN0311-8585-0415

Association News

Thank You 2013 Volunteer CLE Speakers & Planners

Robert Alexander Mark H. Allison William P. Allison Margaret Alsbrook Michelle Ator LaTonya Laird Austin Joyce Bradley Babin David Allen Bailey Kristine G. Baker Tim Baland J. Grant Ballard Jill Barham Steve Barnes Melody Peacock Barnett Ben T. Barry J. Travis Baxter Mike Beebe Arthur Watson Bell Travis R. Berry Seth T. Bickett Anthony W. Black Will Bond Stanley V. Bond Glenn E. Borkowski Misty W. Borkowski Talmage Boston Lara Elizabeth Bowles Wiley A. Branton Toney Baker Brasuell S. Renee Brida Margaret (Mardi) Long Blissard

Mary Lile Broadaway Chad Joseph Brown Jason T. Browning Porter Brownlee Jessie Wallace Burchfield Julia L. Busfield Jason J. Campbell Thomas M. Carpenter Joel B. Carter C. Jason Carter R. Davy Carter Christopher Chad Causey Sarah Cearley Hilary M. Chaney Vera M. Chenault Mark E. Churchwell Jennie Clark Brian M. Clary Charles T. Coleman John C. Collins Jon B. Comstock

Christina Comstock Don Lloyd Cook Junius Bracy Cross Niki T. Cung Thomas A. Daily Russ Darbyshire Charles (Skip) D. Davidson Amber Davis-Tanner Beth M. Deere Milton A. DeJesus Jim R. Dewbre Joel DiPippa Michael B. Dougan J. Charles Dougherty James F. Dowden Richard C. Downing Melissa McJunkins Duke Jack East Sharon E. Echols Khayyam Eddings William H. Edwards Misty Bowen Eubanks Audrey R. Evans Jamie Leigh Ewing Jennifer Williams Flinn John N. Fogleman Lynn Foster G. Spence Fricke Martha A. Garrity Bobby Don Gifford Stephen R. Giles Nancie Givens James F. Goodhart T. Daniel Goodwin David Allen Grace Chad M. Green Omar F. Greene Lorielle Blackwell Gutting Kelly Anne Halstead Lauren White Hamilton Joel G. Hargis Michael E. Harmon Melva Harmon Morril H. Harriman J. Christopher Harris Bilenda Harris-Ritter Amy Hart Raymon B. Harvey Keith Harvey Richard F. Hatfield Teri Hays Christopher Heil Vincent C. Henderson Barron K. Henley Robert L. Henry Judy Simmons Henry

David G. Henry Daniel Lee Herrington Robert L. Herzfeld Samuel S. High Anthony A. Hilliard Hadley Marie Hindmarsh James F. Hollander Cyril Hollingsworth Robert M. Honea Mariam T. Hopkins Christine Horwart Roy Douglas House Curt Huckaby William Asa Hutchinson Jeremy Y. Hutchinson Gail Inman-Campbell William Owen James David Edward Johnson Anthony C. Johnson Amy Dunn Johnson Bonnie J. Johnson Kirk D. Johnson Robert S. Jones Phyllis M. Jones Leon Jones Kendra Akin Jones David L. Jones Colin Jorgenson Jeb H. Joyce Patti R. Julian Anthony W. Juneau Kevin P. Keech Benjamin Adam Kent Shane E. Khoury Fred Kirkpatrick Shelly Hogan Koehler Joseph F. Kolb Cynthia Worthing Kolb Bruce Kramer Robert J. Kressell Michael J. Lamoureux Scott L. Larson David N. Laser Michael V. Lauro Kevin M. Lemley Joi Leonard Harry A. Light R. Stark Ligon J. Nicholas Livers Rita S. Looney Eva C. Madison Bruce Maloch David J. Manley Teresa Marks R. J. Martino Monica L. Mason

David R. Matthews Benjamin R. McCorkle Dustin B. McDaniel Cliff McKinney Karen H. McKinney Matthew Bauer Miller Alicia D. Mitchell James G. Mixon Brandon K. Moffitt Jonathan Brad Moore Jeffrey H. Moore Collier Moore Harry Truman Moore Charles L. Moulton Cynthia E. Nance Wade T. Naramore Christy Neal Charles R. Nestrud J. Richard Newland Michael T. Newman Sherrill Nicolosi Ross A. Noland Gregory J. Northen Phillip Norvell Alan J. Nussbaum Kelly Browe Olson Kevin Jay Orr Ryan W. Owsley P. Delanna Padilla Christian N. Parks Jon Pascoe Annabelle L. Patterson Chad William Pekron Jennifer Peper G. Alan Perkins Brant Perkins Laurie H. Peterson Michael B. Phillips Vicki McNatt Pickering Patt Pine Anthony J. Pirani Harrison M. Pittman Steven R. Porch David M. Powell Troy A. Price Kathryn A. Pryor Jeffrey W. Puryear Steven W. Quattlebaum Heartsill Ragon Jonathan Rapping Lynne T. Ravellette Warren Readnour Deborah Reheard Gina Reynolds George R. Rhoads Scott P. Richardson

Robert Riley Bonnie Lee Robertson J. Mark Robinette Jeff Rosenzweig Edward E. Rundell Melissa Sawyer J. (Gerry) G. Schulze John R. Scott Matthew J. Shepherd Cheryl F. Shuffield Stephen C. Sipes Graham F. Sloan James E. Smith Gary Speed Steven A. Springer James D. Sprott Jocelyn A. Stotts Walter L. Sutton Edward C. Swaim Jess Sweere Clyde Tate Richard D. Taylor Andrew M. Taylor Jenny Holt Teeter Robert S. Tschiemer Annabelle Imber Tuck Kimberly Wood Tucker Casey R. Tucker John E. Tull Richard Edwin Ulmer Cathy Underwood Fritzie M. Vammen Vicki S. Vasser Patricia H. Virnig Joe J. Volpe William A. Waddell John Dewey Watson Frederick S. Wetzel David J. Whitaker Elisa M. White Michael Scott Willhite Todd Williams Faye A. Williams David H. Williams Brad J. Williams Darrin L. Williams Ralph Edwin Wilson Meredith Wineland Jeff Wood Andrea Grimes Woods Victor D. Wright Marshall A. Wright Tod David Yeslow Kim Dickerson Young J. Randy Young Steven S. Zega

It is only through their generous contributions of time, energy, talent and experience that Association seminars can be a success. We deeply appreciate their work. 4

The Arkansas Lawyer

Association News Deadline for submission of Annual Award Nominations due Friday, March 14, 2014

Oyez! Oyez! Appointments and Elections Amber Bagley was appointed to the Arkansas Commission for the Newborn Umbilical Cord Blood Initiative. Harold Evans was reappointed to the Information Network of Arkansas. Judge Leanne Johnson of Beaumont, Texas has been appointed as justice of the Ninth Court of Appeals of Texas. Mary Hatfield Lowe, of Northwest Arkansas Community College, was elected to the Board of Directors for the American Association for Paralegal Education. Jerry C. Jones of Acxiom Corp. has been elected to an at-large position of the board of directors of Heifer International of Little Rock.

Word About Town Quattlebaum, Grooms, Tull & Burrow PLLC announced that Daniel J. Beck has joined the firm as an associate. Worley, Wood & Parrish, P.A. has moved their offices to 1318 S. Main St., Suite 200 in Little Rock, as of November 8, 2013. The firm also announces that Drew Bacon Benham has joined the firm as an associate. To reflect its current roster list of members, Perkins & Trotter, PLLC has changed its name to PPGMR Law, PLLC. Dennis Hansen is the new chief administrative law judge and chief of staff at the Arkansas Public Service Commission. Conner & Winters, LLP has named Amber J. Prince as a partner at the firm. Cypert, Crouch, Clark & Harwell, PLLC, in Springdale, AR has named Matthew L. Fryar a partner at the firm. Kutak Rock LLP announced that Jess L. Askew and Teresa M. Wineland have joined the firm as of counsel and Andrew P. King as an associate in its Little Rock office. The firm also recently promoted Tameron C. Bishop, Stuart C. Hindmarsh, Kyle T. Unser, Jennie A. Clark, L. Keith Harvey and C. David McDaniel to partners. We encourage you to submit information for publication in Oyez! Oyez! Please send to

Lawyer Community Legacy Award Nominations Due February 28, 2014 Do you know an unsung hero or heroine? Submit nomination online at under the “Awards Nominations” tab in your member portal.

It is time to nominate deserving candidates for this year’s Arkansas Bar Foundation and Arkansas Bar Association Annual Awards. The awards open for nomination are: • Outstanding Lawyer • Outstanding Lawyer-Citizen • C.E. Ransick Award of Excellence • James H. McKenzie Professionalism Award • Equal Justice Distinguished Service Award • Outstanding Jurist Award • Outstanding Local Bar Association These awards will be presented at the Annual Meeting in Hot Springs in June. You are encouraged to nominate Arkansas lawyers, judges and local bar associations who deserve recognition. Nomination forms may be submitted by any Association member. Forms are available at under the “Whats New” tab or by calling Ann Pyle at the Arkansas Bar Foundation at 501-375-4606.

The Arkansas Bar Association has equipped me with the tools to really grow my practice and enhance my involvement in the legal community. The wide variety of available continuing education programs helps me to stay on top of legal trends, while the networking events offer tremendous opportunities to meet great people who share a passion for the law and justice. I am honored to be a member of Leadership Academy class of 2014 and look forward to continuing my commitment to advance the legal profession in Arkansas.” —Misty Wilson Borkowski Cross, Gunter, Witherspoon & Galchus, P.C.

Vol. 49 No. 1/Winter 2014 The Arkansas Lawyer


The Arkansas Bar Association Annual Meeting returns to Hot Springs, June 11-14, 2014. This is the largest legal event of the year! Over four days, attorneys will come together for continuing legal education, receptions, award ceremonies, and entertainment. From traditional social events to cutting edge CLE, the ArkBar Annual Meeting is the place to be in June.

6 The Arkansas Lawyer

President’s Report

What would you like to know about the workings of your Arkansas Bar Association? Word limitations and holding your attention will not allow for a listing of everything the Arkansas Bar Association is doing right now, so let me take a shot at some highlights: We are not too far away from the annual meeting in Hot Springs: This has been appropriately described as the most successful Bar Association meeting in the country. Annual Meeting Chair David Fuqua has the meeting completely planned at this point, and if you know David that is no surprise. Mark O’Mara, the defense lawyer for George Zimmerman, will be our keynote speaker and will also participate in a panel discussion regarding how to talk about race. On the criminal side, both Arkansas U.S. Attorneys and an F.B.I. agent will talk about cyber-crime and Will Jones from the Attorney General’s office will speak on cyber-porn investigations and prosecutions. The trial demonstration done by the American Board of Trial Advocates is back, along with cutting edge sessions on social media and e-discovery. We have just come from a successful program at the Mid-Year Bar Meeting in Memphis. Preliminary reports tell us that the CLE in Memphis planned by Brandon and Regan Moffitt was very successful. The party at the Rendezvous was off the charts! Attendance was wonderful, of course the food was great, and our sponsors really stepped up to help us revive this traditional event. We have big plans for next year’s Mid Year Meeting. For the first time in many years, we will meet in Little Rock at the Capital Hotel in mid February 2015 for new traditions and events. Stay tuned for details to unfold. Because of snow and ice in December, we jammed together a Board of Governors meeting in Little Rock and a House of Delegates meeting in Memphis. The Board of Governors and House of Delegates both

by Jim Simpson

What would you like to know about the workings of your Arkansas Bar Association? Return of the Rendezvous at Mid Year

House of Delegates Meeting at Mid Year

passed resolutions completely supporting the Arkansas Courts and Community Initiative of the Arkansas Supreme Court. The director for that program, Sam Kauffman, is off and running with the project. Please consider volunteering to be on the speaker’s bureau to present to any civic organization of adults. Sam tells me (and I think he is right) that sadly only one in five adults can name the three branches of government. The Court’s presentation is already scripted and has an accompanying Power Point. All we have to do is volunteer, show up and present these much needed educational materials. Future bar leaders have already assembled for the next class of the Leadership Academy. Past graduates enthusiastically have wholeheartedly been approved to become a Section of the Arkansas Bar Association—a section of Alums of the Leadership Academy. Hopefully next month we will be able to

roll out electronic legal forms called ArkBar Docs. Since so many new Arkansas attorneys are starting their own practices, we have a new member benefit called “SNAP” (Starting a New Arkansas Practice). The resources are available on the Arkansas Bar website under Law Practice Management. Staying updated on new appellate decisions has become easier: our website has weekly case summaries of appellate decisions and mini-case summaries provided the same week as the new decision. The appellate summaries for the entire year of 2013 are now searchable by logging into ACE from your member portal on In consultation with the Arkansas Supreme Court, a pilot program that included law students being able to seek assistance from the Judges and Lawyers Assistance Program has gone from a pilot to a regular benefit. Many of the programs and benefits for this Bar year were “brainstormed” in a retreat at Judge John Stroud’s lakehouse on Lake Greeson last Summer. Lastly, I am very excited for the Association that Brian Ratcliff and Eddie Walker have stepped into the Presidency track. Both have been very active in the Bar Association for a number of years and have the experience that we all need to best serve you. ■

Vol. 49 No. 1/Winter 2014 The Arkansas Lawyer


Sign up. Ship. Save. Arkansas Bar members save big on select FedEx® services ArkBar members now have access to special members-only savings on their shipping and business needs. Enroll in the FedEx Advantage® program and start saving today. Up to 26%* off FedEx Express® U.S. services Get important documents delivered sooner, be more competitive, and save money. ArkBar members save up to 26% off FedEx Express U.S. services.

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Discounts include an additional 5% when shipping labels are created online with FedEx Ship Manager® at or with another approved electronic shipping solution. FedEx shipping discounts are off standard list rates and cannot be combined with other offers or discounts. Discounts are exclusive of any FedEx surcharges, premiums, minimums, accessorial charges, or special handling fees. Eligible services and discounts subject to change. For eligible FedEx services and rates, contact your association. See the FedEx Service Guide for terms and conditions of service offerings and money-back guarantee programs. Black & white copy discounts apply to 8-1/2" x 11", 8-1/2" x 14", and 11" x 17" prints and copies on 20-lb. white bond paper. Color copy discounts apply to 8-1/2" x 11", 8-1/2" x 14", and 11" x 17" prints and copies on 28-lb. laser paper. Discount does not apply to outsourced products or services, office supplies, shipping services, inkjet cartridges, videoconferencing services, equipment rental, conference-room rental, high-speed wireless access, Sony® PictureStation™ purchases, gift certificates, custom calendars, holiday promotion greeting cards, or postage. This discount cannot be used in combination with volume pricing, custom-bid orders, sale items, coupons, or other discount offers. Discounts and availability are subject to change. Not valid for services provided at FedEx Office locations in hotels, convention centers, and other non-retail locations. Products, services, and hours vary by location. © 2013 FedEx. All rights reserved.

8 The Arkansas Lawyer

Young Lawyers Section Report

The Young Lawyers Section is continuing this year's theme of fulfilling the ideal that those who have been given much have an obligation to do more and give more in return. Many have stepped up to volunteer their time and talent to help their fellow Arkansans. However, more help is needed. According to the 2010 Census, 550,000 Arkansans—19% of the state's population— meet the threshold to receive legal aid. Each year, Arkansas's legal aid programs receive approximately 30,000 calls for help. The Arkansas Access to Justice Commission, Legal Aid of Arkansas and the Center for Arkansas Legal Services do amazing work to meet these needs. Unfortunately, though, half of all qualified families are turned away due to lack of resources. In addition to the individuals seeking legal aid, according to the National Center for Charitable Statistics, there are approximately 3,000 active charitable nonprofits in Arkansas. Many of these nonprofits do not have the resources to pay for legal support. Furthermore, there are many other unmet needs in Arkansas such as resources to assist disaster victims and legislation to help better protect vulnerable populations such as children and young adults. The Young Lawyers Section is working on numerous projects to meet these needs and encourage volunteerism through the Arkansas Bar Association and Arkansas's legal aid programs. As Chair of the Young Lawyers Section, I am taking this opportunity to challenge every member of the Arkansas Bar Association to find a way to volunteer and give back. Of course, the Young Lawyers Section would love to have your help with one of our numerous projects (regardless of your age), but, if you cannot do that, then please

by J. Cliff McKinney

find some other way to get involved and help those in need, such as volunteering to assist one of the legal aid programs. Opportunities for service through the Young Lawyers Section include: 1. Assisting the Disaster Relief Committee to help with a handbook being developed to provide answers to lawyers assisting disaster victims. 2. Volunteering to help with estate planning through the new Build A Will program. The Build A Will program is a partnership with Habitat for Humanity of Pulaski County, Arkansas Access to Justice and the Center for Arkansas Legal Services to provide estate planning services to the people that Habitat for Humanity serves. 3. Helping to update one of the Young Lawyers Section's handbooks, such as 18 and Life to Go, which is a legal reference manual for young adults. 4. Contributing to the efforts of the Citizenship Education Committee, which is developing possible legislation to improve the lives and legal protections of young adults. 5. Participating in one of the Young Lawyers Section’s pro bono outreach programs. Several events are currently being planned, with a focus on the Wills For Heroes program for emergency responders. This is just a partial list of the programs the Young Lawyers Section has available. There are also other opportunities for involvement, including: 1. Assisting the Minority Outreach Committee in its initiative to encourage people of diverse backgrounds to enter, and excel in, the legal profession.

2. Providing articles for the Young Lawyers Section award-winning newsletter, InBrief. There is a particular need for volunteers to help write articles for a new segment called "Hot Topics." Hot Topics is a collection of articles from practitioners in many legal

We have been given much and must give back much in return.

fields aimed at keeping readers informed about the latest developments in the law. 3. Participating in one of the social events. The Young Lawyers Section hosts several social events every year. Make a point to attend at least one event to learn more about ways to get involved. 4. Helping with the mentoring videos series. The Young Lawyers Section is developing a series of videos aimed at giving pointers to young lawyers. This is an especially good opportunity for the not-so-young lawyers to get involved and help. Every attorney has a responsibility to do something to give back to society. We have been given much and must give back much in return. We all have a responsibility to give part of our time and talent to help others. The Young Lawyers Section is one of the best ways to find a way to give back and help others. Please find a way to join with us and help make a difference through the Young Lawyers Section. ■

Vol. 49 No. 1/Winter 2014 The Arkansas Lawyer


A Call to Leadership in the Arkansas Bar Association The petitions, current members of both bodies and district maps are listed on the Association’s website at “Board of Governors” and “House of Delegates” links are located on the “Home” tabs. Questions? Contact the Association at 501-375-4606.

Board of Governors

House of Delegates

District County(ies) 1 Governor to be elected 3-BG Arkansas, Ashley, Chicot, Cleveland, Crittenden, Cross, Desha, Lee, Lincoln, Monroe, Phillips, Poinsett, Prairie, St. Francis, Union 5-BG Dallas, Garland, Grant, Hot Spring, Saline 6-BG Benton 7-BG Washington 15-BG Pulaski 16-BG Pulaski

District County(ies) No. of Delegates to be elected

All are Three-Year Terms Qualifications for Board of Governors The attorney must reside in the geographical area for the Governor’s position and must have served one year in the House of Delegates or must have been an Association member for seven years by the time of joining the Board of Governors in June. Election Process for Governors and Delegates For both governors & delegates, a nomination petition, signed by three current members of the Association who reside in the geographical area of election, must be filed with the Secretary at the Arkansas Bar Association, 2224 Cottondale Lane, Little Rock, AR 72202, no later than March 31, 2014.

Nominating petitions due by March 31, 2014

Chair-Elect, Secretary/Treasurer & District Representatives The Secretary/Treasurer and District Representatives shall be elected by the majority of those present and voting at the Annual Meeting of the Young Lawyers Section, which will occur during the Association’s June Annual Meeting. Chair-Elect elected from District A (one-year term) Secretary/Treasurer elected from any District (one-year term) Representative District A (three-year term) Representative District B (three-year term)

A-1 Benton 1 Delegates A-2 Washington 4 Delegates A-3 Crawford, Franklin, 2 Delegates Johnson, Sebastian A-4 Conway, Logan, Perry, Polk, 1 Delegate Scott, Yell A-5 Boone, Carroll, Madison, Newton 1 Delegate B Pulaski 10 Delegates C-3 Craighead 1 Delegate C-5 Cleburne, Crittenden, Cross, 1 Delegate St. Francis, White, Woodruff C-7 Lonoke, Monroe, Prairie 1 Delegate C-8 Arkansas, Grant, Jefferson, Lincoln, 1 Delegate Phillips, Lee C-9 Ashley, Bradley, Calhoun, Chicot, 1 Delegate Cleveland, Columbia, Dallas, Desha, Drew, Ouachita, Union C-11 Clark, Hempstead, Howard, Lafayette, Little River, Montgomery, Nevada, Pike, Sevier 1 Delegate C-12 Garland 1 Delegate C-13 Hot Spring, Saline 1 Delegate All are Three-Year Terms Qualifications for House of Delegates The attorney must be an Association member residing within the Delegate District as defined by Article XVI Section 2 of the Association’s Constitution.

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

American Bar Association Delegate One of the two ABA Delegate positions is open for election for a two-year term. The Delegate from this Association to the House of Delegates of the American Bar Association shall be nominated by petition signed by at least 75 Association members with at least 25 voting members from each of the three state bar districts. The nominating petitions must be filed with the Secretary at the Arkansas Bar Association, 2224 Cottondale Lane, Little Rock, AR 72202, no later than March 31, 2014.

Nominating Petitions Due by March 31, 2014 10

The Arkansas Lawyer

Association News Arkansas Bar Association 2013-2014 Board of Governors

Front Row (l to r): Eddie H. Walker, Jr., Brian H. Ratcliff, Jim Simpson, Charles L. Harwell, Marie-Bernarde Miller; Second Row: F. Thomas Curry, Denise Reid Hoggard, Laura E. Partlow, Danyelle J. Walker, Amy L. Grimes, Karen K. Hutchins, Jeffrey Ellis McKinley, Cliff McKinney II; Third Row: Brian M. Rosenthal, Judge Gary Arnold, Troy A. Price, Paul W. Keith, Amy Freedman, Laura Hensley Smith, Earl Buddy Chadick, Jr.; Top Row: Brant Perkins, Brian Vandiver, Buck C. Gibson, Jack A. McNulty, Don Hollingsworth, Jerry D. Patterson, Suzanne G. Clark This photo was taken at the Capital Hotel in Little Rock by KES Photos during the January 2014 Board of Governors meeting. OFFICERS


Wade T. Naramore


President, Jim Simpson

Seth T. Bickett

Laura E. Partlow

Judge Gary M. Arnold

Board of Governors Chair, Marie-Bernarde Miller

Earl Buddy Chadick, Jr.

Jerry D. Patterson

Harry Truman Moore

President-Elect, Brian H. Ratcliff

Suzanne G. Clark

Brant Perkins

Karen K. Hutchins

Immediate Past President, Charles L. Harwell

Frances S. Fendler

Troy A. Price

Judge Mark A. Pate

Secretary, F. Thomas Curry

Amy Freedman

John C. Riedel

Treasurer, Shaneen K. Sloan

Buck C. Gibson

Brian M. Rosenthal

Parliamentarian, Leon Jones, Jr.

Amy L. Grimes

Jerry L. “Jay” Shue, Jr.

Young Lawyers Section Chair, Cliff McKinney II

Denise Reid Hoggard

Shaneen K. Sloan

President-Elect Designee, Eddie H. Walker, Jr.

Don Hollingsworth

Brian A. Vandiver

Jeffrey Ellis McKinley

Danyelle J. Walker

Paul W. Keith Richard L. Ramsay Jack A. McNulty Laura Hensley Smith

Vol. 49 No. 1/Winter 2014 The Arkansas Lawyer


What Do You Do When Nothing Seems to Work: An Evaluation and Suggested Approach to Addressing the Diversity Issue in the Legal Profession By Dean Michael Hunter Schwartz* & JB Smiley Jr. According to a frequently-told story,1 many years ago, a general was attending a conference on military strategy at a large hotel. The hotel was also hosting a very different conference. Delayed over lunch, the general arrived late to the first afternoon session. He rushed in and sat down. After a few moments, the general realized he had walked into the wrong conference room. He quickly determined it would be rude to leave. He decided to listen to the discussion and leave when it ended. The discussion concerned radiation as a treatment for cancer. The doctors were expressing frustration because, although radiation was proving very effective at killing cancer cells, it was equally effective in killing the healthy cells through which the radiation needed to pass to get to the cancerous cells. After a few moments, the general sheepishly raised his hand. He explained that he was in the wrong room and that he was supposed to be in the military strategy conference across the hall. He also stated that, many years ago, the military had struggled with a similar problem. He explained that most fortresses are surrounded by mines. If an army were to attack such a fortress in full force from one direction, the army would trigger the mines and many lives would be lost. Armies therefore had to develop a different approach; they began to attack fortresses from all sides and in small groups, which would allow the forces to avoid the mines. The general suggested that a similar approach might work for an attack on cancerous cells. According to the legend, this insight led the oncologists to decide to beam lighter doses of radiation at cancer cells from many different directions at once, an approach that to this day has enabled oncologists to minimize the harm to healthy cells. The new approach—which ultimately led to the solution—constituted a paradigm shift. Similar to the oncologists’ radiation issue, the legal profession’s diversity issue has plagued the profession for many years. There have been several programs that have attempted to remedy the legal profession’s diversity issue; however, the number of minorities within the legal profession is significantly disproportionate in comparison to the nation’s minority population.2 To remedy this long-lasting problem, legal education needs a paradigm shift. The United States minority population is on the rise.3 However, the legal profession is not following suit.4 Addressing this issue requires a skeptical look into the nation’s law schools and at the programs developed to bolster diversity within the profession. The programs we have in place tend to skip over the individuals who truly need help.5 Unsurprisingly, this hurdle is not the only one that must be overcome. Minority students—accepted into law school—underperform in comparison to their white peers.6 Despite the overall inadequate results, there have been successes that if continued on a larger scale will help effectuate the goal—helping students from underrepresented populations succeed in law school and diversifying the legal profession. Those other efforts, both at the law 12

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school and the undergraduate levels, show great promise. The rest of the article details two such efforts and suggests the best of both become the new model for recruiting and retaining minority law students. I. The Council on Legal Education Opportunity The Council on Legal Education Opportunity (CLEO) “is committed to diversifying the legal profession by expanding legal education opportunities to minority, low-income and disadvantaged groups.”7 This commitment includes preparing students for the process—applying to law school, taking the LSAT, completing law school, passing the bar exam, and subsequently finding or creating jobs within the legal profession. Thousands of students who have participated in CLEO’s programs have been successful at each stage of the process and are now members of the legal profession.8 How does CLEO achieve success? CLEO’s core program, its Summer Institutes, consists of several different components, including peer mentors, law school success skills, visits to courts, legal institutions, and law firms, first-year courses, and a software/program designed to improve writing skills called “Core Grammar for Lawyers.”9 In addition, before the students arrive on site, CLEO’s Academic Curriculum Consultant, Professor Rory Bahadur, offers teaching methods training to the faculty at the host law schools.10 The students participating in the CLEO program are assigned to groups that consist of four to six students and a trained, upper-division student mentor.11 The student mentors go through an extensive training process where they learn active learning and teaching methodologies Dean Michael Hunter Schwartz is the Dean and a Professor at the University of Arkansas at Little Rock, William H. Bowen School of Law. He served as the Academic Curriculum Consultant for the Council on Legal Education Opportunity.

J B Smiley Jr. is a student at the University of Arkansas at Little Rock, William H. Bowen School of Law, J.D. expected May 2015. He is the current Vice President of the Black Law Students Association.

with an emphasis on cooperative learning.12 The students also attend workshops taught by CLEO faculty. The workshops not only give students an opportunity to experience law school Socratic-style instruction first hand, but also teach them to be expert self-regulated learners.13 Additionally, the workshops focus on teaching students how to most effectively read cases, take notes, perform legal analysis, and outline their courses.14 The student mentors help facilitate learning in the small group setting. At the conclusion of each Summer Institute, each student disperses to whichever law school that admitted her or him.15 The groups end with the conclusion of the Summer Institutes. CLEO reports that its alums “are represented in every area of society, including: private law firms and corporations, law schools, federal and state judiciaries, and legislatures across the country.”16 The results are significant; however, evidence is lacking that will support a conclusion that CLEO alums succeed at a greater rate than like peers who do not participate in the CLEO program or that CLEO alums use the techniques they learned during the CLEO program once they get to law school. Some relevant data does exist for a similar program known as the Posse Foundation, Inc. (POSSE) program, which was designed for undergraduate students with diverse backgrounds. II. POSSE Since its inception in 1989, POSSE has been motivated by three goals, which are: 1. To expand the pool from which top colleges and universities can recruit outstanding young leaders from diverse backgrounds. 2. To help these institutions build more interactive campus environments so that they can be more welcoming for people from all backgrounds. 3. To ensure that Posse Scholars persist in their academic studies and graduate so they can take on leadership positions in the workforce.17 In a concerted effort to achieve its goals, POSSE has sent 4,848 students with diverse backgrounds to college, and the students did not go empty handed.18 POSSE has received $577 million in scholarship assistance from partner universities, and has awarded the scholarships to the POSSE scholars.19 The students gained more than just money; they also gained skills to succeed. POSSE’s program consists of four components: (1) recruitment and selection, (2) pre-college training, (3) full scholarships, (4) campus and career support.20 The selection process

is focused on identifying groups of 10 students with positive attitudes who are motivated, have leadership potential, and a drive to learn.21 Once the students are selected, POSSE devotes its efforts to their success. POSSE scholars meet with POSSE personnel for two hours each week during the students’ senior year to receive training in four areas: (1) “Team building and group support,” (2) “cross-cultural communication,” (3) leadership and becoming an agent of change, and (4) academic success.22 POSSE scholars are given a four-year scholarship, which covers their entire tuition.23 Once a POSSE arrives on a university’s campus, the university provides a faculty mentor for the POSSE.24 The faculty mentor meets with the POSSE once a week and with each POSSE scholar individually every two weeks during the first two years.25 POSSE personnel visit the campus four times throughout the year and, interestingly, facilitate an annual retreat among the POSSE, other members of the student body, and members of the university faculty and administration; the group meets to discuss and address a campus issue raised by the POSSE.26 Also, the POSSE program makes summer internships available to the POSSE scholars; for the most part the internships include opportunities to develop their career-relevant skills.27 POSSE has an impressive graduation rate of 90%,28 which exceeds the national undergraduate graduation rate for all students of approximately 60%.29 Considering the remarkable success of the POSSE program, implementing a law school-focused version is a promising idea. III. The Vision A hybrid fusing of the best aspects of the CLEO and POSSE programs could be the blueprint for the future. In a more in-depth article forthcoming in the Valparaiso Law Review, Dean Schwartz details this vision.30 The vision combines the model Dean Schwartz created for CLEO with the following key elements from the POSSE Program: small groups that stay together, careful monitoring, scholarships, summer jobs, collaboration skills training, institutional input, and selection process.31 This new model, of course, can only be deemed a success if it has a transformative effect on the students it serves. Law schools, however, may need to take a few preliminary steps to prepare their communities for the program and convince minority students to participate. First, at many law schools, minority stu-

Reception to Welcome Dean Schwartz l to r: Furonda Brasfield, Aarika Kilgore, April Rhéaume

2013 Welcome Week

dents report that they are treated differently, sometimes even with suspicion, and may even be asked, on occasion, to speak as if they were representatives of everyone who has a similar racial background.32 Law schools may well need to develop and implement a program of cross-cultural training for faculty, staff, and existing students to avoid these problems. Second, law schools will need to bolster interest in the legal profession among students with diverse backgrounds and make these students aware of programs like the proposed model, which removes the financial burdens of law school. The national decline in minority law school enrollment33 is a significant hurdle. Law schools may need to create partnerships with school districts by which the law schools offer mock trial or moot court experiences that would help get underrepresented populations excited about the possibility of law school. The hybrid model will help students from underrepresented populations succeed in law school and successfully diversify the legal profession. However, every new idea, even the ones that are grounded in educational research and sound hypotheses like this one, require a pilot program. Therefore, two or three law schools should pilot the idea. An adhoc committee at the UALR Bowen School of Law (“Bowen”), consisting of faculty, students, the law school’s student services dean, and the law school’s admissions dean, are considering whether Bowen should pilot

Vol. 49 No. 1/Winter 2014 The Arkansas Lawyer


this idea. If Bowen implements the idea, the law school will collect data from the pilot program and use it as evidence of the effectiveness of the new model. Once law schools demonstrate that the model works, expansion efforts can begin. Endnotes: *Michael Schwartz thanks his research assistants at Washburn University School of Law, Kelsey Fowler and Scott Abbott, his colleague at the Bowen law school, Melissa Serfass, and Bowen student Bill Godbold, for assistance with this article. All errors belong exclusively to the authors. 1. It may well be that the story is untrue. Instead, the story appears to be a variation on a tool used to assess analogical thinking. See CogModels/duncker.html. While the story may not be true, the authors have chosen to include it because, by analogy, it speaks powerfully to the need to look outside legal education for solutions to the challenges currently confronting legal education, including diversifying the profession. 2. See Terry Votel, Diversity in the Legal Profession: The Challenge Remains!, Bench & B. Minn. 7 (Jan. 2011). 3. Id. 4. Id. 5. Eli Wald, A Primer on Diversity, Discrimination, and Equality in the Legal Profession or Who Is Responsible for Pursuing Diversity and Why, 24 Geo. J. Legal Ethics 1079, 1081 (2011). 14

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6. See Jesse Rothstein & Albert H. Yoon, Affirmative Action: What Do Racial Preferences Do?, 75 U. Chicago L. Rev. 649, 688–90 (2008) (comparing first-year class rank with percentile score and graduation rate with percentile score of black and white students). See also Dorothy A. Brown, Taking Grutter Seriously: Getting Beyond the Numbers, 43 Houston L. Rev. 1, 19 n.141 (2006) (citing Expert Report of Patricia Gurin for University of Michigan app. B, Gratz v. Bollinger, 539 U.S. 244 (2003) (No. 02-516) & Grutter v. Bollinger, 539 U.S. 306 (2003) (No. 02-241, available at http://www.umich. edu/~ urel/admissions/legal/expert/gurinapb. html). 7. CLEO, cfm?fuseaction=Page.viewPage&pageId=482 (last visited Sept. 25, 2013). 8. Id. 9. August 17, 2013, Interview with Professor Rory Bahadur, CLEO Academic Curriculum Consultant. Notes on file with author Michael Hunter Schwartz. 10. Id. 11. Id. 12. Id. 13. Michael Hunter Schwartz, Teaching Law Students to be Self-Regulated Learners, 2003 Mich. St. Dcl L. Rev. 447, 474 (2003). 14. August 17, 2013 Interview with Professor Rory Bahadur, CLEO Academic Curriculum Consultant. Notes on file with author Michael Hunter Schwartz. See generally, Michael Hunter Schwartz, Expert Learning for Law Students (Carolina Academic Press

2008). 15. August 17, 2013 Interview with Professor Rory Bahadur, CLEO Academic Curriculum Consultant. Notes on file with author Michael Hunter Schwartz. 16. See supra note 10. 17. Mission + History + Goals, http://www. (last visited Sept. 29, 2013). 18. Mission + History + Goals, supra note 20. 19. Mission + History + Goals, supra note 20. 20. Program Components, The Posse Foundation, Inc. http://www.possefoundation. org/about-posse/program-components (last visited November 7, 2013). 21. Recruitment, The Posse Foundation, Inc. (last visited November 7, 2013). 22. Pre-collegiate Training, The Posse Foundation, Inc. http://www.possefoundation. org/about-posse/program-components/precollegiate-training (last visited November 7, 2013). The academic success training appears to be analogous, if not identical, to the selfregulated learning instruction provided by CLEO. 23. Nomination Process, The Posse Foundation, Inc. http://www.possefoundation. org/about-posse/program-components/recruitment/nomination-process (last visited Sept. 29, 2013). 24. Campus Program, The Posse Foundation, Inc. http://www.possefoundation. org/about-posse/program-components/campus-program (last visited November 7, 2013). 25. See supra note 27. 26. See supra note 27. 27. Career Program, The Posse Foundation, Inc. (last visited November 7, 2013). 28. Mission + History + Goals, supra note 12. 29. Jonathan D. Glater, In Search of Standouts Who May Not Stand Out Enough, N.Y. Times (May 24, 2006), http://www. html?pagewanted=all&_r=1&. 30. Michael Hunter Schwartz, 50 More Years of CLEO Scholars: The Past, the Present and a Vision for the Future, ___ Valparaiso L. Rev. ___ (2013). 31. Id. at ___. 32. See Meera E. Deo et al., Struggles & Support: Diversity in U.S. Law Schools, 23 Nat’l Black L.J. 71, 73 (2010). 33. Jodie G. Roure, Achieving Educational Equity and Access for Underrepresented Students in the Legal Profession, 19 Temp. Pol. & Civ. Rts. L. Rev. 31 (2009). ■

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Talk about good! Contact Vice President of Development Kim Evans today at or 501-372-1116.

Kim Evans, JD Vice President of Development and Client Services Vol. 49 No. 1/Winter 2014 The Arkansas Lawyer


Increasing Diversity in Arkansas’s Law Schools and Our Profession

By Dean Stacy Leeds One of the most publicized national trends in legal education today is the dramatic decline in student applications to law schools and the corresponding decline in law school enrollment throughout the United States. If this trend continues, there are implications for the legal profession as a whole, particularly within Arkansas. From 2010 to 2012, total enrollment in U.S. law schools dropped by 7,000 students. A more troublesome and often overlooked phenomenon within the overall reduced applicant pool is a sharp decline in both applicants and matriculants from underrepresented communities. In the past three years, there were 1,000 fewer African American law school applicants than in prior years. As a result of the overall declining applicant pool, law schools throughout the country, including the Arkansas law schools, have admitted slightly smaller entering classes as competition for law students intensifies. The likelihood that some of Arkansas’s top law school candidates, as measured by performance on the law school admission test and undergraduate grade point average, will be successfully recruited by out-of-state law schools offering lucrative scholarship opportunities has never been so pronounced. When these market forces are at play, Arkansas’s concerns over brain drain are highlighted. With declining enrollments, it follows that ensuring a diverse student body and ultimately a diverse legal profession is becoming a tougher proposition. A very positive development for Arkansas, and consequently the legal profession within our state, is the recognition that our state law schools are providing quality education at an affordable price. Arkansas law graduates move into practice with student loan debt much lower than the national average and they face a job market in our region that produces more JD required and JD preferred employment 16

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2013 PLUS Prelaw Undergraduate Scholars

2012 Trial Competition l to r: Jon Brown, Judge Doug Schrantz, Judge Mary Ann Gunn, Judge Jim Spears, and Donavon Sawyer

opportunities than other areas across the United States. In the most recent national law school best value rankings, both of our state law schools performed well, each delivering a unique experience for its students at a remarkable value. But even with these national accolades, the declining applicant pool at our state’s law schools signals potential changes that we must be proactive in addressing. The state of Arkansas is fortunate to have a long history of welcoming underrepresented groups into the study of law. In 1948, the University of Arkansas School of Law (and, by association, the entire University) became the first college in the South to admit an African American student since Reconstruction. The admissions building of the University of Arkansas is named in honor of that student, Silas Hunt. Five trailblazing African American students

followed Silas Hunt and enrolled in the School of Law in the next few years. Those men—Wiley Branton, George Haley, George Howard, Christopher Mercer, and Jackie Shropshire—are honored along with Silas Hunt in the Six Pioneers Room in our Leflar Law Center. When one considers the impactful legacy of their careers and how their individual success translated into tangible positive outcomes for the communities they served, a simple proposition rings true: community empowerment starts with meaningful access to legal education. Of the first five African American law school graduates within the state of Arkansas, one became a United States Ambassador (to Gambia), one became a Law School Dean (at Howard), one served as a Federal Court Judge, and two enjoyed successful careers in the public and private practice of law, which included countless hours of pro bono service in the most important issues of their time, including the integration of the Little Rock schools. The commitment to diversity and inclusion continues to this day, a legacy that our two state law schools share and prioritize. This coming summer will be the sixth year in a row that an Arkansas law school has hosted a summer pipeline program geared at increasing the overall diversity in law Dean Stacy Leeds is the dean of the University of Arkansas School of Law. She has focused her teaching and extensive research on property, natural resources, and American Indian law. A citizen of the Cherokee Nation, she is the first American Indian woman to serve as dean of a law school.

schools, and ultimately, the profession. The pipeline programs were originally funded by the Law School Admissions Council. The Prelaw Undergraduate Scholars (PLUS) programs recruit rising college sophomores and juniors who attend colleges or universities with historical or significant populations of African American, Asian American, Latino, and American Indian students; who are the first generation in their family to attend college; who experience significant financial challenges; and are members of student populations which are historically underrepresented in law school. The William H. Bowen School of Law hosted this diversity pipeline program from 2009-2011, and the University of Arkansas School of Law will welcome its third PLUS class to Fayetteville this coming summer. Both law schools have now matriculated students who are products of these programs. While the Bowen School of Law and the University of Arkansas School of Law are doing their part to open the door to a legal education to diverse populations, the new challenge is ensuring that all communities throughout Arkansas have access to justice through legal representation. When states are compared for the number of lawyers per capita, several sources now rank the state of Arkansas last, with a lower lawyer-to-citizen ratio than all the other states in the union and Puerto Rico. It is a jarring statistic that every lawyer and friend of justice in our state would do well to remember each time the rhetoric about there being “too many lawyers in Arkansas” is advanced. We have a rising population within our state with inadequate access to lawyers, courts and justice. Most of our law graduates who choose to remain within Arkansas to begin their careers as lawyers, business leaders, and professionals are eager to take advantage of employment opportunities in Northwest Arkansas and Little Rock, while dozens of small town firms have difficulty persuading new lawyers to join their practice. It is important that our next generation of lawyers be prepared to meet the legal representation needs that will be magnified in some communities following the imminent retirements of community leaders who have been the perfect models of “lawyer as community leader.” These community-minded

We are pleased to announce that Ariel J. Snyder has become an associate of the firm. Tom D. Womack John V. Phelps Paul McNeill Richard Lusby

Jeffrey W. Puryear Mark Mayfield Roger McNeil

lawyers are crucial to the long-term viability and economic sustainability of all our communities, those that are traditionally well represented and those that have been underserved. To address this emerging problem, and to encourage more of our students to consider practice in the socially, ethnically, economically, and geographically diverse communities across our state, the Public Interest and Rural Community Sustainability Fund has been created at the University of Arkansas School of Law to create incentives and new opportunities for law students to consider pursuing public interest or private practice in underserved communities. When this fund is financially realized, law students who are otherwise limited in summer clerk-

Chuck Gschwend Ryan M. Wilson B. Wade Bowen Ariel J. Snyder

ship options to traditional law firm experiences will have the flexibility to explore work in diverse community settings. As law schools, we must renew our commitment of energies to recruiting and ensuring the success of students from all communities, and know that a tough market will require more tenacity than ever. As Arkansans who champion a strong and diverse legal profession, we need to be mindful in encouraging our future leaders to pursue legal education. If our law schools struggle to enroll students from diverse ethnic backgrounds, of limited economic means, or from underserved areas of our state, Arkansas’s challenges around access to justice will be that much more difficult to address. ■

Vol. 49 No. 1/Winter 2014 The Arkansas Lawyer


Diversity in the Legal Profession—A Time of Challenge Transcript from a Panel Discussion The Editorial Advisory Board of the Arkansas Bar Association hosted a panel discussion on diversity on October 8, 2013, at the Arkansas Bar Center. The purpose of the panel was to provide insight from several perspectives on the current state of diversity in the legal profession. The transcript from the discussion is provided in this article. Special thanks to Bushman Court Reporting. Transcript provided by Cris M. Brasuell, CCR, Bushman Court Reporting. Mr. Kaplan: Welcome, everybody. I’m glad that we’re able to have this session dealing with diversity which will then be published in The Arkansas Lawyer Winter Edition this February or so. When I began practicing law in Arkansas, I had already been practicing for five years for the government. This was in 1968, then I began here. There were very few African-American lawyers, none that I can recall outside of Little Rock and North Little Rock. Women, there were a few women lawyers, they were essentially relegated to family law. I can’t remember that, at that time, there was any woman who was practicing outside of family law, doing divorces, adoptions, custody matters such as that. And I don’t recall that we had any Hispanic lawyers, at least not in Pulaski County, so there’s been a remarkable change in terms of numbers. But there may not have been changes, I hope



there have been many changes, in the way each of you encounters the practice. And so I’d like to begin by asking each of you to tell me when you began practicing law and the environment in which you practice, and that is solo practitioner, small firm, large firm, and essentially the nature of your practice. And Cory, we can begin with you.

Mr. Childs: Yes, sir. All corporate law, all transactional. Anything non-litigation related, I can handle.

Mr. Childs: Okay. Thank you, Mr. Kaplan. My name is Cory Childs. I practice at Mitchell Williams Law Firm here in Little Rock, which is, I’m sure, considered a large law firm by Arkansas standards. I began practicing law in 2008. I clerked for Justice Lavenski Smith for a year and then started at Mitchell Williams.

Mr. Kaplan: All right. Harold Evans.

Mr. Kaplan: Okay. And are you practicing in a particular area at Mitchell Williams?


Hoggard •

Orta 18

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• • • • • • • •

Mr. Kaplan: You’re one of those sit-down lawyers? Mr. Childs: That’s right.

Mr. Evans: I’m Harold Evans. I began practicing in 1978. And I actually began as a lawyer with the solicitor’s office of the Department of Interior in Washington D.C. representing the various components of the Interior Department. I did that for a few years then I came back to Little Rock to be a law clerk for the late Richard Arnold, and I was a law clerk for him for two years. Then,



Cory Childs, Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C. Milton DeJesus, Immigration Law Center LLLP Harold Evans, Williams & Anderson PLC Denise Hoggard, Rainwater, Holt & Sexton Phil Kaplan, Moderator, Williams & Anderson PLC Marie-Bernarde Miller, Williams & Anderson PLC Lawrence Orta, Orta Law Firm, PLLC Emily Runyon, Arkansas Supreme Court Angela Schnuerle, Immigration Law Center LLLP

I moved back to Washington D.C. and I was with the Washington office of a New York firm, Kaye Scholer. I did that for three years, primarily in international trade and the beginnings of an intellectual property practice. Then, I moved back to Little Rock to join the general counsel’s office of the University of Arkansas where I basically was the, and it’s a long title, the associate vicepresident for—I’m trying to remember the title again. It’s the associate vice-president for legal affairs—research and technology. Essentially, I was the university’s in-house intellectual property attorney. I did that for 17 years. And then after that, I joined the law firm of Williams and Anderson where I am now a partner and I head up the intellectual property practice. And I’d say I am the intellectual property practice at the firm. I’ve got a fairly unique practice, even though there are other attorneys in this field, in professional terms. But I do that exclusively and I work closely still with the University of Arkansas handling their intellectual property matters, trademarks, copyrights, and technology licensing. And one of the things I do is I represent the Razorback trademark which is almost a full-time job. Mr. Kaplan: Okay. Emily? Ms. Runyon: Hello. I’m Emily Runyon and I work at the Arkansas Supreme Court. I clerk for Justice Paul Danielson. I began practice in 2005 and I basically just work on anything and everything that comes before the court. So sometimes it’s civil issues of first impression. Mr. Kaplan: Emily, has your practice since ‘05 been exclusively in government? Ms. Runyon: It has. Mr. Kaplan: Okay. And how long have you been at the Supreme Court? Ms. Runyon: Since 2005. Mr. Kaplan: Since 2005? Ms. Runyon: Yes. Mr. Kaplan: Okay. Well, I know, Denise, that you’ve had a varie professional life, too. Ms. Hoggard: I have. I started practicing in 1983 and I began practice with Janet Pulliam who trained me and taught me employment

law. And I’ve done both plaintiff and defense in employment issues and discrimination and particularly addressing issues important to our topic here today since 1983. Just recently, I joined the law firm of Rainwater, Holt and Sexton. And so I’m in, I guess, l to r: Kaplan, Hoggard, Runyon, Evans and Childs a mid-sized law firm now by Arkansas standards. Mitchell Williams is a large one, but I suppose we’re “Diversity is something a midsize. Mr. Kaplan: Okay. And Marie? There are three of us from Williams and Anderson. I don’t know how that happened, but perhaps we are very diverse. Ms. Miller: My name is Marie-Bernarde Miller. I’ve been practicing since 1984. I started out as an original Heber Smith fellow at the legal aid office in Central Arkansas Legal Aid down in Pine Bluff. And within a year, I had received an offer to join John Walker’s law firm where I was a brief writer and I worked with him and another attorney there who was sort of a writing mentor, Tom Sizemore. I stayed with John for about three years and then started my own practice, solo practice, in 1986. I practiced solo for two years before I became a deputy prosecuting attorney for Pulaski County and Perry County. I did that for about 13 months and set out into the ocean to sink or swim by Judge Piazza who was my prosecutor at the time and did about 13 jury trials in that time period. So that was lots of felonies as well as some bench trials. And then I was offered a position at the attorney general’s office as an assistant in the Medicare fraud unit, fraud control unit, where I was there as an assistant for about a year and a half or so. And when Winston Bryant was elected attorney general, I was appointed as deputy attorney general for the Medicaid fraud control unit where I stayed for four years. After I left there, I went back to solo practice. I believe at that earlier solo practice, Milton and I shared office space for a while. And in the second solo practice, I did that for about three years and then I was hired by Gill Elrod Ragon Owen and Sherman, which is now Gill Ragon

that we have to want. We have to choose it and then we have to be proactive about achieving it. So if diversity is a value in a law firm, then I think that we have to actually set about achieving it.”

Owen law firm, to do litigation work there. And I stayed there for almost 11 years and in 2008, I joined Williams and Anderson law firm and have been there since as of counsel. So that’s my professional career so far. Mr. Kaplan: Milton, you and I have known each other for a long time. Mr. DeJesus: We have. It’s been great, Phil, and good morning to my colleagues. I’m from Minnesota. Actually, I’m a real southern boy because I was born in Puerto Rico. So from there, I went to Minnesota, grew up there, and went to a small liberal arts college which was, I think, a very avant-garde school named Macalester College. And then I went to the University of Minnesota Law School, practiced in Minneapolis-St. Paul for about five years, and then I relocated to Little Rock essentially to get my parents out of the cold. I wanted them to retire in a warmer climate. I practiced law pretty much as a solo practitioner and I currently now practice with a really great lawyer. We developed a partnership a couple of years ago or at least seven or eight months ago, but we began talking about that many years ago. There is an anecdote I just wanted to tell. When I started law school, there were very few females. I graduated in 1976, very few females.

Vol. 49 No. 1/Winter 2014 The Arkansas Lawyer


l to r: Schnuerle, DeJesus, Miller, Evans, Childs, and Orta

“Start off, admit that there is bias. Maybe it didn’t come from your house, but it’s bias that exists that we have to fight through.” Mr. Kaplan: 1970? Mr. DeJesus: 1976, I graduated from law school. We were still in the very old building on the University of Minnesota campus and there were an increasing number of female students admitted into our classes. It was discovered that there weren’t enough facilities for the females so they converted one of the male bathrooms to a female bathroom and it still wasn’t enough. I don’t know which committee came up with the idea of building a brand new bathroom for the females, but the problem is the one place they were going to put it was in the student lounge because the plumbing was on the other side of that wall and it just seemed to be the best place to put this. And the women just went into an uproar because their position was, every time we go in and out of the bathroom we’ve got everybody watching us, you know, which was horrible. I think there was great support against that by the student body because we thought it was kind of not a nice thing to do. I graduated and I don’t know what ever happened to that, but within about ten years, there was a new law school building. I think the University of Minnesota has more female students in the law school than males currently. But at any rate, that’s one of the things that I’ve been thinking about. I practiced with Virginia Atkinson. And for prosperity, she is probably one of the real pioneers in law and she taught me a great deal. She taught me how to love people, taught me how to swear better than I knew how to do. One thing I told 20

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Virginia Atkinson, I had mentioned to one of her nemeses who found out that I was practicing with her, he asked if I had put up a wall between her office and mine. And I said, no, I’m going to tell you what, she’s a real sweetheart. And he used some expletives to express his displeasure with her, but I went back and told her. I said, I ran into so-and-so and I told them that you’re a real sweetheart and she was very mad at me. She said you’re ruining my reputation. I won’t be talking about diversity probably in my view, the racial diversity. I think that as a result of that experience with Ginger and law school and having grandchildren who are females, I really think that we’ve moved a long way. We’ve got a long way to go, but in terms of diversity, I think we’ve made great strides with regard to the gender issue. I think we’re falling behind in some other areas. Mr. Kaplan: Angela? Ms. Schnuerle: I’m Angela Galvis Schnuerle, first-tier immigrant born in Colombia. My mom Colombian, my dad with Mexican roots. I went to the University of Houston for undergraduate school. I worked, had my own contracting company for many years. I took advantage of the minority contracting aid programs for federal work and I did fairly well, and then decided to go to law school. It seemed like my life was better organized at that time. I went to law school in Arkansas, I suspect as a diversity drive of the University of Arkansas, I was awarded a scholarship to come here. After my first year of law school, I started work for Senator Blanche Lincoln without much knowledge about Arkansas politics, but when I met her and fell in love with her personally. My job was related to Hispanic issues, and to better serve the growing Hispanic population. We look for federal programs and moneys that we could bring to

Arkansas that could assist the integration of Hispanics in Arkansas. I have an L.L.M. in agricultural law as a result of anticipated need for expertise in immigrant labor to Arkansas’s agricultural sector, and by that time Senator Lincoln was the chairman of the USDA and I received a fellowship. Arkansas is an agricultural state, immigrants come, go but farmers don’t have enough labor to pick the crops. When Senator Lincoln lost her senate seat, I truly began practicing law. Milton and I have formed this partnership, it’s called The Immigration Law Center and my focus is immigrant issues. If you are an immigrant, there are issues related to the practice of all areas of the law; whether we realize it or not, getting married, getting a divorce, buying some property, if you’re an immigrant you have issues that you have to take into consideration. If your family is in Mexico and you buy property here, if you divorce and you have a home in Mexico and a home here, many, many issues are related to immigrants. I came to the United States via Texas and I am happy to be in Arkansas and to have witnessed the demographic changes and progress that have been made in the areas of diversity in the state. Mr. Kaplan: Lawrence, what we’ve been doing is explaining who we are and when we began practicing and the nature of our practice since our admission to the Bar and what we’re doing now in particular. Mr. Orta: I’m from Texarkana now. I started my practice my birthday, actually, September 30th, so it’s been a week after a full year. It’s been crazy. I’m licensed in Texas and Arkansas and I went where my clients were. I previously worked with Leo Monterrey and that’s where I learned immigration. I ended up taking a lot of clients that were in the Texarkana area, so most of my cases involved six-hour drives there and back.

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Eventually, when I decided to go off on my own, I decided that would probably be the best area to start up and it’s been pretty crazy since then. I’m the only Spanish-speaking or even just Hispanic attorney in that area for at least a good 100-mile radius. I also serve Texas and Arkansas. So right now, I’m getting a lot of clients coming from Hope, DeQueen, and also on the Texas side. There’s a large area that’s underserved there as well. It’s just been more of a rapid growth in just this first year alone. I’ve gone from working here in Little Rock before I found office space in December, and by February 14th, have it actually opened, and then it just started picking up from there. So by July 30th, I had my first associate, and by August 15th, I had a paralegal and a law clerk and we’re still trying to keep up. The growth and the need is so—there is such a huge need in that area that the minute someone finds out, they tell other people and it’s just been growing exponentially because of that. It’s been, really, just trying to keep up. And having your own practice in one year, I really don’t know if this is normal or not normal. I have nothing to base it on, but the hardest part for me is just trying to serve the needs of that community, still be able to take on cases that I feel passion-

ate about, while trying to serve the clients I already have, and trying to find that balance. Do I want to take on a case that I know will involve a lot of time but someone needs to speak out for this particular person. And so now, that’s where I am right now. Mr. Kaplan: Thank you so much for driving all the way up from Texarkana. I’m glad to have you here. When I began practicing in Arkansas, there was no doubt that AfricanAmericans and women did not find an easy time in the practice. It was difficult in terms of the way they were treated in court frequently and the way they were treated by other members of the Bar. So it’s nice that we have a group where some of you are in practice less than ten years and some that have been in practice almost as long as I have. Would you tell me from your perspective— and we don’t have to go around the table, just speak out. From your perspective, did you encounter discrimination, different kind of treatment because of who you are? And for those particularly who have been practicing just for a little while, how you view those that have gone before you, and do you see a different climate in the practice here in Arkansas? Who wants to tackle that first?

Ms. Runyon: I think Denise probably has more history as far as how things used to be. I, for one, have a lot of respect for the women who have gone before me, because I do think we have come a long, long way. Having said that, there are still issues that face women today. I know that it’s been eight years since I interviewed with local firms, but I, myself, in two different interviews at two different mid-size firms, I won’t name names, but I was specifically asked—I had just gotten married, and I was specifically asked what my plans were for family. I found myself having to defend the fact that I had worked very hard to graduate and that I was ready to do the job they were asking me to do. Although I was sure I would someday have a family, I wasn’t ready to tackle that right then and figure out how that was going to balance, but I assured them I would figure out how to balance. Sometimes that answer seemed respected and sometimes it was pretty obvious that the people in the room were skeptical. Mr. Kaplan: How did you feel when you were asked that? I mean, it’s clearly something that shouldn’t have even been asked. Ms. Runyon: Right. I think my first reaction

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was shock, and then when I had a moment for it to sink in, I got angry. But I didn’t feel like, obviously, in an interview was the best situation to be angry, so I tried to just process the question and answer the best I could. But obviously, it felt extremely unfair. I have a husband who had just gone through an interview process and never had he said, hey, I was just asked about when we were going to have kids. So it felt demeaning in a way.

Mr. Kaplan: And were you extended an offer at any of the firms where you interviewed?

Mr. Kaplan: Sure. And as president of the Association of Women Lawyers, do young women tell you, lawyers who are embarking on a career in the last couple of years, do they tell you that the same thing is occurring?

Mr. Kaplan: Yeah. Okay. Anybody else? I’d like to hear from everybody.

Ms. Runyon: Yes, they do. Mr. Kaplan: Really? Ms. Runyon: Uh-huh. Everybody is always shocked to hear that because there are laws that have been in place for decades now that those types of questions are really for, as far as equal employment opportunity goes, those types of questions are really supposed to be off the table.

Ms. Runyon: No. One of those places, it was down between me and a male. We had done three different interviews and the final interview was when this came up. It was between me and another male law student that had just graduated, and he was extended the offer.

experience those same issues. It was good when I was in school to have someone like Harold that I could go talk to about working in firms in Little Rock. Now, I’m happy to be that and do it for young law students and be able to talk to them. So in that way, it’s changing. A few of us are out there that they can come to and say is this okay, how is it working here, whereas before, that probably didn’t exist. Mr. Kaplan: You are president of the Flowers Law Society? Mr. Childs: Yes.

Mr. Childs: I’d like to piggyback on what Emily says. Just as an anecdote, in one of my first law school interviews for clerking, I went to clerk at one of these mid-sized firms. Actually, I went to interview for a position, and the first thing was, well, we don’t do any criminal law or civil rights. And that assumption that that’s all, either all I can do or all I would care to do is something that we have to fight through. Obviously, I am as far away from criminal law as you can get, probably, as a securities lawyer and a real estate lawyer, but you have to find that. And in talking to law school students who are still in school, they

Mr. Kaplan: Do the young AfricanAmerican lawyers, both students and new graduates, tell you that they encounter the same kind of reaction that you encountered? Mr. Childs: Definitely, definitely. I mean, I get that all the time where they—some of it is intuitive. It’s a feeling. You feel out of place when you’re interviewing. You can just sense that you’re probably not what they’re looking for, for whatever reason, and then you make your assumptions on what those reasons are. But some of it is

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more blatantly the anecdote that I stated, so, yes, it definitely still goes on. I think the only way that’s going to change is to increase diversity, unfortunately. Mr. Kaplan: So it’s apparent, at least to you and to Emily, that law firms are not doing enough and are still enmeshed in this old conventional wisdom about what the role of African-Americans are and what the role ought to be. It’s a little distressing. Mr. Childs: Yes, I agree with that. I think firms, for the most part, and this is not just an Arkansas problem, obviously, aren’t recognizing the problem, which I think is the first step. In any twelve-step program, it’s to recognize the problem, and I don’t think firms are doing that. They’re just ignoring it and, I guess, assuming it will go away, but obviously it’s not. You have to first say, look, we have a serious problem with diversity here, and that’s the first step. Maybe you don’t have an answer, but to recognize that there is an issue inside—law firms I’m speaking, really explicitly to, because that’s all I’ve dealt with. I don’t think they’re recognizing the problem by and large.


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Mr. Kaplan: Denise, how about from the perspective of somebody who’s been in practice for a while? Ms. Hoggard: Well, I can tell you that when I first began, I believed that I was competitive in getting a position. I believed that the employee decision-maker had told me that I would have the position. I went to study for the bar, and when I showed up to start work, there was a man sitting in the chair that had been pointed out as mine. So that started my career. In the interim, of course, I had bought a house and acquired a mortgage, so I did not dwell on those small details, and instead, went and found a job. Carolyn Witherspoon, I had been a law clerk for her at the City of Little Rock and she was instrumental in helping me locate work with Janet Pulliam. And again, when I started, there were only a handful of us women out there practicing that were established, so it was an easier way to get into the door to get started when I first started. Now, over the course of my career, I felt as though I could move freely to other law firms. I went to a law firm my second year out of practice that was all male lawyers and I was the first woman. Bless their hearts, they didn’t really know what to do with me.

And when we had a partnership meeting and it was all men, they decided to just invite me in. It seemed like, otherwise, they would be excluding the only woman in the firm so from day one, I started sitting as though I were a partner. But it was different in terms of dealing with clients, as well. We stood out as being different, the women in firms in my early years of practice. Some of the clients just frankly did not want to trust a woman lawyer to answer their questions. That’s been true throughout my career. There have been clients who have been hesitant to hear me speak and trust what I had to say. I relate some of those instances to gender. I can give you an example. I was sitting in a conference room with a board that we represented. I was the lead lawyer representing them in this matter and I had brought a brand new associate to a meeting with me. He had maybe practiced law a month. I gave the board my opinion direction advice and counsel, which I thought was wise and stellar. They looked at him and said, “What’s your opinion?” Mr. Kaplan: And this is recently? Ms. Hoggard: Well, that’s been within the last three years, four years, yes.

Mr. Kaplan: Do other women who have been in practice for a fairly long period of time tell you the same thing? Do they recount similar incidents in their practice? Ms. Hoggard: Yes. I remember, through the Association of Women Lawyers Judge Audrey Evans came and spoke to us shortly after she took the bench as a U.S. bankruptcy judge. She related a story about having been in a similar situation with a client where she was clearly the lead lawyer and had the facts and the law well versed. And somehow, the client looked to the younger, male attorney that was in the room. It is not a unique situation. Particularly when we get into areas that relate to business, finance, economics, those nonstereotypical areas for women lawyers. It’s harder to get the business clients to trust that we understand business because of our gender. Mr. Kaplan: Marie, you’ve practiced for a fair amount of time now. Do you think that there are still stereotypical areas for women practitioners? And have you encounter the same kind of phenomenon? Ms. Miller: Yes. I think that it still exists. I think that one of the things, this has to do

with race, where Cory was mentioning about someone immediately assumes that because you’re black you must be doing criminal law. This has only happened to me once, but I was kind of shocked because of how it was said to me. I was introducing myself to someone as a lawyer and the person immediately says, “And you practice criminal law?” And I said, “No, I don’t.” The assumption was that that’s obviously what I practiced. Now, I think the same experience that Denise has mentioned, I’ve had other women lawyers say the same thing. That they’re in a room with another attorney who’s a male and the woman may be the principal person who knows the law in that area and the male is there mainly as a support. And the male clients turn to the male and ask, and actually talk to the male as opposed to her. And it’s almost a body thing, it’s she does not exist in the room, the male is the person that they’re talking to. I’ve heard that as well. I think another point is that recently, I had a young, black woman lawyer ask me if I would have lunch with her, and I said sure. We went to lunch and her question to me was, “I just want to ask you, how do I get to where you are?” The question had never been asked of me. She perceived, and of course it’s a fact, when I was at Gill Elrod

Ragon, I was a partner in the law firm and I was one of two black women partners in a corporate law firm in the state of Arkansas. The other person, and I can not remember her name at the moment, but she was at Wright, Lindsey and Jennings and I was at Gill. Only two. I’m not sure about today, I don’t know. At Mitchell, do you have a [black] woman partner? Mr. Childs: No, ma’am. Ms. Miller: Okay. And so when she was talking to me, she thought I was a partner at Williams and Anderson, but I’m of counsel at Williams and Anderson. But she says, “I think you’re the only one, the only black woman who is a partner in a large law firm in the state of Arkansas, mid-size, large law firm in the state of Arkansas.” It kind of hit me in the gut that that’s probably true. Now, how is that possible? And then, she’s asking me, “How do I get to where you are?” Because she is in a very small practice with, probably, two lawyers, and she wants to know, “How do I get into a business law firm?” Mr. Kaplan: So Marie, are there steps that firms can take, that law schools can take, that

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will ameliorate some of these problems and maybe even that lawyers of my vintage and a bit younger can take? You know, I practiced with women for the last 30 years and particularly very strong women, so I don’t have that same sense of where we are. Because, for one thing, more people took Joann’s word than they took mine, which may have been good sense on their part. But what can be done?

Anderson? What has deterred them? And this person I was talking to was saying there’s just kind of a fear of taking that step.

this negative light, go through with it and prove them wrong. That’s really the only way to do it.

Mr. Kaplan: Fear on the part of the firm?

Mr. Kaplan: So, Cory, do you have to be better?

Ms. Miller: Concern about how they’re going to be accepted in the firm. Mr. Kaplan: By the lawyer?

Ms. Miller: You know, after talking with this young lady, I was thinking diversity is something that we have to want. We have to choose it and then we have to be proactive about achieving it. So if diversity is a value in a law firm, then I think that we have to actually set about achieving it. When we’re looking to enhance the numbers in our firm and we say that we value diversity, then I think we have to look for those persons. If it’s women, if it’s Hispanics, if it’s African-Americans, you have to actually say, okay, we’re going to look for those persons and make a concerted effort to act on that value. Otherwise, when I look and I think about some of the black women lawyers that are out here in solo practices, why are they not in larger firms? Why have they not applied for positions in a firm like Mitchell or Wright or Williams and


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Ms. Miller: By the lawyer. How they’re going to be accepted, even at the process of being interviewed and how they’re going to be accepted. If they were accepted into the firm, hired into the firm, would they fit? Would they be able to be a part of that firm? I think there’s just—and I don’t know, Cory, if you’ve had anyone who’s said the same thing. But it’s just a concern that it’s just not going to work. Mr. Childs: Definitely. I’ve had that concern or I’ve heard that concern. And my response is, well, you’re going to be stereotyped. You’re going to be considered, thought of as someone who’s not going to come to work early and be one that leaves late. So now that you know that you’re going to be considered in

Mr. Childs: Well, I tell my 16-year-old daughter that you have to be four times better than everybody you’ve ever met. My phrase is, “You have to be the Michael Jordan to whatever you do.” You just have to be the best, that’s all there is to it. And so once you’re the best, you have to make it extremely obvious that the reason you didn’t get chosen is discrimination. You have to. It can not be close. You have to be way better. Mr. Kaplan: Milton, what’s been your experience? Mr. DeJesus: Well, I’m pondering a lot of things. I appreciate that you started out with Cory, because I think he’s probably laid it out in a way that a lot of us can relate to. I was just thinking though, you know, we don’t come out of law school, any of us, knowing anything about anything. We don’t know anything more about criminal law than we

would about patents, so it’s obvious that we get pigeonholed pretty quickly. I was just going to mention that when I started practicing in Arkansas in 1982, does anybody, recognizing that some of us were really young back in 1982, does anybody know what the state of immigration law was like in Arkansas in 1982? Mr. Kaplan: As I recall, there was one woman in Lonoke who practiced some immigration law, but I don’t recall anybody else doing it. Mr. DeJesus: Yeah. That was Cathy Goss. And Cathy Goss, I think, started practicing immigration law in 1984. In 1982, I don’t think Arkansas could even spell the word “immigration” properly. I started out practicing immigration law and I was essentially self taught. I had to figure out how to practice an area that nobody else was in because everybody else was doing the other law. We were all fighting over—I remember one of the judges in town, his name will come to me. When he was in private practice, he said, “We’re all laboring in the vineyard of the whiplash.” This was in the ‘70s and ‘80s where, you know, there’s a concentration of

personal injury. Because that was one area that the majority of lawyers, and particularly, probably minority lawyers, were going to make a living. The point I’m making about what Cory said is, if somebody would have given me a chance to become a patent attorney back in 1982, I would have been as good a patent attorney as I think I am an immigration lawyer. And I think that’s probably true for everybody in this room. If perhaps people don’t get pigeonholed, I think they can rise to the occasion. Because obviously, if we learned an area like immigration law now, and when I started practicing immigration law, people would think that’s nothing but administrative law. Well, right now, it’s been recognized every bit as difficult as tax law and patent law, an extremely complicated area of the law. Those immigration practitioners who really are good at it will tell you they’re always confused. Mr. Kaplan: Did you feel any particular hostility to you as a Hispanic lawyer? And really, when you started, probably the only Hispanic lawyer in Pulaski County, maybe in the state. Mr. DeJesus: Well, I’m not sure that I felt hostility, but I was certainly an outsider. I

knew that I was an outsider. People couldn’t pronounce my name, couldn’t spell it. I’d introduce myself to somebody and they just have this weird name that they have to kind of digest. Mr. Kaplan: Milton? Mr. DeJesus: Yeah, Milton. That combination made it even worse. But as a matter of fact, I recall my very first jury trial and this was probably 1982 or 1983. I’m thinking to myself, how am I going to deal with a jury in Arkansas, and I had only been here, maybe six months. I’m not sure I could understand what everybody was saying to me. And I recall that Ivan DeJesus played shortstop for the Cardinals, and I knew enough to know that if you love sports in Arkansas, you’re in. If you love the Razorbacks and you love the Cardinals, you’re in. So when I introduced myself to the jury, I said, “My name is Milton DeJesus, now, I’m not related to Ivan DeJesus.” Everybody, you could see that whole jury just change. All-of a-sudden, they’re smiling, I’m one of them because of this connection of somebody that they knew who had won the Golden Glove that year. A tremendous shortstop. So all of the sudden,

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I’m not this Milton DeJesus that nobody knows, I’m this other Milton DeJesus that people can relate to. I think once that happened, it opened up. I had a decent experience there and that just came to my mind. I’m not so sure that people were necessarily prejudiced against me. I think they just didn’t know me. They didn’t know who I was or what I represented. So I think that if lawyers can come out of law school and are given the opportunity to practice patent law, they can do patent law. It’s very complicated. Mr. Kaplan: A good lawyer is a good lawyer. Mr. DeJesus: A good lawyer is a good lawyer and they don’t get stereotyped. I mean, if we get pushed into all we do is criminal law, we might get really good at it, but you know what, we could be a great copyright, patent attorney. So that’s kind of my view. Ms. Miller: Just to follow up with Milton on that as well, that’s sort of my point. There may be African-American lawyers out there who may not have all the experience in a certain area of practice, but if a firm values diversity and wants to have a diverse firm, they’ll bring those people in and train them to be what you want them to be or need them to be. That’s the point. If you look at your firm and it is 99 percent white male and you say we value diversity, then I think you might then sit down and say, hey, we need to look like we value diversity. So let’s go out and look for women, black women, white women, Hispanics, black males, who we think will fit in our firm and enhance our firm. Actually going to do it, look for them. Don’t settle for the easy. I think that’s what

usually happens, is that they don’t come walking in the door, then okay, well, nobody came in and so we don’t need to make the choice of diversity because no one walked in our door to apply. Ms. Runyon: I think that’s a very good point. Because I think in this day and age, especially in gender when you’ve got a lot of women graduating, just a lot of diversity in the school, doesn’t mean you’re seeing it in the firm. I didn’t do these numbers for anything but gender, but just looking at four of the largest, I won’t say they are the four largest, but four of the largest firms here locally, there’s 163 partners and 30 are women. Mr. Kaplan: Thirty women? Ms. Runyon: Thirty women, so about 18 percent. So just because we have this 50/50 ratio coming out of law school doesn’t mean we’re seeing that come to play in practice, in positions of power anyway. Ms. Schnuerle: I kind of have a different story because I am a beneficiary of diversity. I came to law school in Arkansas and I was accepted in other law schools but later in life after a successful career as a contractor. I think I got this scholarship because the law school was losing points on a national level due to diversity. Now, I had something to overcome that Lawrence didn’t and Milton didn’t, and that is English as a second language and my accent. That was really, really hard. Because a judge would ask me, “I can’t understand you.” Or since English is truly my second language, it was very hard for me. It didn’t come because the Holy Spirit

illuminated me, it was really a lot of work to write in English at the levels that we need as lawyers. And the L.L.M, of course, finished me off, that was finishing school for legal writing and legal thinking and everything else. But I remember and I feel I’m beneficiary although my accent doesn’t coordinate with my skin. I remember when I got my scholarship and people looked at me for the first time, it was like, “Oh, my God, we gave the scholarship to the wrong person,” until I spoke. Because I don’t look Hispanic, although I am. But either way, I benefited because I went through school on a scholarship and I went and did my L.L.M. on a fellowship. Obviously, I had to work hard to do those things, but I did. I recall when I got out of my L.L.M., I received offers from all over the state. And I recall this particular law firm in the Northwest-Arkansas area that would just beg me to go work for them. And I said, “Well, I want a lot of money to work for you and I don’t know anything about law.” And, “Just how much, just how much?” I said, “$150,000,” because it just came to me. And they said, “Fine, but you’ve got to realize you’ll be our only Hispanic in our law firm,” which told me I was going to be the token Hispanic that they were going to carry around and show around, maybe to get other contracts. Mr. Kaplan: Well, 150 grand for a token ain’t so bad. You might be able to live with that. Ms. Schnuerle: But I had offers. I literally turned down many offers. Not because I would feel bad to be the token Hispanic. After all, I was one of three Hispanics in the U.S. Senate at the time. I was a woman contrac-


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tor, Hispanic woman contractor in Houston, Texas. So obviously, I’m sure to have it, and I have a business background. But I did not accept for those reasons, there were personal reasons. I did not like Northwest Arkansas. Everyone there is a Republican, so I wasn’t going to live there. Mr. Kaplan: I know there are Democrats there. Ms. Schnuerle: But I was at the receiving end of diversity. This was between 2003 and 2006 and I was aware of the changing population in Arkansas, the changing markets in Arkansas. Walmart came out with, if your firm doesn’t have diversity, show me, we won’t give you contracts. So all those efforts prompted an opportunity that I didn’t take, but it was there for me. But I did go to work for two years with a great firm, but it was so hard for them to adjust. They hired me because they wanted the market, their market share of the Hispanic community. They recognized the language was a tremendous barrier, but it was so hard to adjust. For example, I started bringing in more cash than I think they had ever seen in their lives. Because my clients come with $3,000, $4,000, $5,000 in cash and put it on the table, so it was hard to manage. Accounting was hard to manage. Billing by the hour to somebody who makes $15 an hour or $10 an hour was a disconnect. They would rather give me $5,000 up front than be billed by the hour. So with this diversity, although they wanted that market, it was so hard to adjust. It was extremely difficult and maybe the commitment wasn’t there. I think my clients were treated differently. Often, you see Hispanic clients being

treated different by firms than non-Hispanic clients because their lack of language skills, the lack of orientation. Put in a complaint, they don’t know how to do it and they get ripped off all the time. The opportunities were there for me and I’m grateful, because otherwise, I wouldn’t be here in Arkansas. I would have probably stayed in Texas. But it’s been a hard road. Mr. Kaplan: Lawrence, I saw this week’s edition of the Daily Record, the Pulaski County newspaper of legal records, so to speak. There was a picture about LULAC students meeting with the governor. These aren’t law students necessarily, these are just college students. So as a new graduate, let me ask you two questions. One, are there Hispanic students who are aspiring to be lawyers and want to be lawyers? And secondly, the three Hispanic lawyers we have here are all centered around, their practice is centered around immigration, so is it something that you felt as a Hispanic lawyer a need to do? That is, is it more a mission, something that you think you need to do for your people, for the people that you represent? Or would you just as soon have gone and become a transactional lawyer as Cory has? Mr. Orta: I think, when I graduated from law school, I was more interested in criminal law and property law, real estate. But I knew that there was still that underlying need for Spanish-speaking attorneys, because this market is so underserved. I actually was hesitant to go into immigration law, although anyone I talked to said I should do it. You know, I needed to focus on that. I wasn’t really interested in it at first. I was clerking for Judge

Ingram my first year and I liked what I was doing and I thought this would be something I’d be interested in doing. But anyone else you would run into would say you need to go into this field. And I really sort of just backed into it. Because after that, I was working for an insurance defense firm in Texarkana and I really did not like it. It just seemed like that part of the company or group that would need that much of a defense, it wasn’t for me. But I did learn a lot, and there was actually the immigration firm here, Monterrey and Tellez, that approached me about coming to work for them, because they were growing faster than they could manage. I thought it was a great opportunity. Not necessarily for the immigration but actually the criminal aspect of it. I thought that was interesting, criminal defense. But once I got there, the need for immigration is so overwhelming that it’s really inescapable. Every criminal defense client I had also had an immigration case. I think, in the entire time I was there, there might have been five clients that were there that were actually citizens. The rest were undocumented and a dozen or so were actual OPRs. So I ended up having to learn immigration because if not, I couldn’t really counsel my clients on what the best options were on the criminal side. Because there are certain things that you can’t plead guilty to without it triggering what’s called mandatory detention and losing any opportunity for adjusting your status or even acquiring status in the U.S. afterward. So I ended up having to learn both just so I could practice criminal law. And because of that, it sort of grew on me because it became—you start to realize how complicated it is, because it’s not administrative law. Administrative law was really dull.

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Vol. 49 No. 1/Winter 2014 The Arkansas Lawyer


I just didn’t want to touch it, but it’s not anything like that. You always feel like you’re on your toes just trying to handle something because you just never know what’s going to happen at any hearing. Mr. Kaplan: How about the cohort Hispanic students who have either, in law school or have an aspiration toward being lawyers, is it a growing number? Does it manifest itself in law school? Mr. Orta: Not in law school. I see it more now, especially with deferred action. You come across people that are interested first in going to college. And they’re interested in law, they’re interested in actually getting a degree and doing something more with it. But as far as in law school, it seems like the people that I’ve come across that are interested in immigration law are actually non-Spanish speaking or non-Hispanic students. But they’re just interested because they’ve either did a year abroad or a summer abroad at some point in college and have been exposed to LatinAmerican culture and become fascinated with it. It’s usually those law students that contact me about wanting to learn immigration. As far as someone who’s actually Hispanic or

Spanish-speaking, I think right now, there are two that are going to be graduating. And I’m not sure how many are 2-Ls, but it seemed like when I was there was probably the height of Hispanic law students and now it’s just dwindled back down to two or one. I think when I was there, there might have been almost 10. Mr. Kaplan: Were you in Fayetteville or here? Mr. Orta: Here. Fayetteville, I have not heard of—I think there was one my 3-L year. Mr. Kaplan: Is there an impediment to young Hispanic students after college to go through to law school? Mr. Orta: I think for me, my experience was I wouldn’t have thought of coming to Arkansas. I mean, if you go across, right into Texas, there’s so many of them. It’s almost a dime a dozen. My older brothers were attorneys. They graduated from law school, UT Law. And when they were starting, you know, that was in 1980-something, there were just a handful. Now, at least a good 20, 30 percent of any class in Texas is Hispanic students. It’s just like once you’ve crossed into Arkansas or Oklahoma, it’s almost nonexistent. It’s just

that no one wants to pass that border to get outside of Texas. Ms. Schnuerle: I was the founder of the Hispanic Law Student Association. And when I was there, it was only myself and then two sympathetic persons and Goldner pushing it, we’ve got to have something, we’ve got to have something, so we did. And then behind me came Leo and Crissy and Robert. And I think the school is probably doing a good job trying to recruit Hispanics. But what we’re not doing a good job is, in retaining them. People come from other states to Arkansas to school because we have a very reasonable tuition. But after they graduate, there are no job offers or they don’t stay. So we educated maybe 10 or 15 Hispanic kids, but out of those, maybe one stay. So we’re not retaining them very well. Mr. Orta: A lot of them, at least from my class, went back to Texas after they were done. That’s what they wanted to do. Mr. Kaplan: How unfortunate for them. Mr. DeJesus: If I could add something. I see that we also have, in terms of diversity, we

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have diversity in terms of graduation. I mean, because we have attorneys who probably have practiced five years, maybe 10. And then, I guess you and I are probably the early ones of this group. I was thinking something. Again, I think Cory and Marie, what they talked about is really resonating in my mind, but I want to tell you my very best. The University of Minnesota Law School, those schools up there are very competitive and very difficult and not sympathetic at all to the students. Plus, it’s very cold up here. And plus, you’ve got to walk a long way from the place you park your car to go to law school, to the building. So there were a lot of impediments for people staying in law school. But interestingly enough, my very best class, there’s one class I think I excelled in, was trust and estates. You know, I don’t know where that came from, I don’t know why I had been to that and could see it and could deal with it. But when I came out of law school, I’m not sure where I could have gone to apply for a job as a trust and estate lawyer. You know, there’s no outreach, there’s no place that if I could have excelled in that area in the law practice, I wouldn’t even know where to go and apply. Again, it goes back to getting pigeonholed. And unfortunately, the law is a situation where nobody’s going to hold

your hand. You know, some law firms talk about, you eat what you kill, right? And so you come out of law school and you’ve got to start making money. You’re not going to be able to go to a law firm and probably get carried for more than a couple of months, maybe a year, where you generally have to essentially bring in your own salary and then money for the firm. So it’s a very difficult area. And then all of the sudden, you may have skills in this particular area but that’s not where you make money. You make money doing these other things, which you may not like, which you may not be particularly good at, which you may not be serving your clients the very best of your ability or even to something that’s good for the client. You know, I think we’re all hurt by that. Mr. Evans: One thing, I’d like to jump in at this point, is that, you know, I think the downturn in the economy has adversely impacted the recruitment of minority attorneys. One thing that Angela mentioned is something that had been building up over the years. The outside pressure put on corporate law firms to hire minorities and women. Walmart was one of the pioneers in the nation and other national firms had taken the same position. They all signed this agreement several years ago where

they would hire firms with diverse personnel. Well, the economy has changed to some extent. That outside pressure is not as great as it was, and so that’s another factor in terms of the hiring and recruitment of women and minorities. The firms, all those law firms that have clients that are national firms, are not getting all that pressure from those firms as much as they used to, and I think that’s a factor. Mr. Kaplan: Harold, I’ve got a question for you. But, Milton, I need to tell you that the University of Minnesota is not any colder than Ann Arbor, Michigan. In my class, I graduated in 1962. And in my class of well over 300, there were five women. One of whom was black and later served on the Second Circuit Court of Appeals, so she is an exceptional individual and would have been an exceptional individual any place she practiced. But women just didn’t go to law school then for any number of reasons. Harold, you have been an administrative lawyer, been a government lawyer, been in private practice. Did you see any, in your various practices, did you see any effort toward diversity then? And did you see and feel any difference as a black lawyer in a white legal world? Mr. Evans: Well, with me, as you can prob-

Small Firm.

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Missing and Unknown Heirs Located No Expense to the Estate Domestic and International Service for: Courts Lawyers Trust Officers Administrators/Executors 1345 Wiley Road Suite 121, Schaumburg, IL 60173 Telephone: 800-844-6778 Fax: 800-946-6990 ably tell, I have a speech impediment. So when I got out of law school, sometimes I didn’t know which was the obstacle in terms of hiring. I graduated from the University of California Berkeley and I was a Harvard undergraduate. There were law firms all over the country that were interviewing at Berkeley, and I interviewed with quite a few of them. You know, I didn’t get that many offers and I never knew which was the reason. Was it my race or my speech, and that was one of the reasons I went with the federal government, initially. You know, they were more accepting at the time of people from diverse backgrounds and with disabilities. So that was one of the things I had to contend with at the time, that I wasn’t sure which was the reason I was not being hired. But over the years though, and that was during the period of where there was more pressure being put on law firms, to hire attorneys from diverse backgrounds. I think I was a beneficiary of that to some extent. Also, clerking for Judge Richard Arnold, I was in a better position, so I did receive offers from several national law firms after my clerkship and I ended up working for a firm in D.C. at the time. But within that firm, you could tell that there were certain differences. It wasn’t with my firm at the time, but one of the firms with whom I had interviewed. A lot of the interviewers were saying that, “Well, we hired a black lawyer a 32

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few years ago and that didn’t work out and we were sort of reluctant to do it again.” As, “We hired this Italian lawyer or this Jewish lawyer, that didn’t work out, we didn’t hire any of them anymore.” So the thing is, there was a double standard. And some firms at the time saw it more of experimentation, let’s see how things would work out. And if they didn’t work out with that one particular black lawyer, then it’s sort of like, we’re not going to do that again anytime soon unless the person is truly exceptional. You do have to contend with those sorts of attitudes. There was a period of time again before the economy took a downturn, that there was more of an effort to diversify the ranks of major law firms and that was coming from that outside pressure. Mr. Kaplan: Do you and the others here have a feeling that you’re being looked at in a different way because you’re black or Hispanic or a woman? I guess you can’t say it would be different if you were a man. Well, I guess you can say that. Do you think that that’s so? That still, even 2013, close to 2014, that that’s still a phenomenon that’s still the real world? Denise, do you think it’s still the real world? Ms. Hoggard: I come from a background of employment discrimination law. And for almost 30 years now, dealing with women who believe that to be the case. Now, in

proving discrimination, we don’t always have success of being able to show that gender is in fact what motivated it. Just like in that conference room, I can’t be sure that board member was looking to the man because they just didn’t think my opinion was very astute or they disagreed with it and were looking for another option. Same way for me now in viewing how others perceive me. Is it because I’m a woman that they view me differently or is it because I’m out there advocating on behalf of women’s rights and have been so closely aligned with that for 30 years. Perhaps they don’t appreciate that perspective or of being reminded of that issue. Mr. Kaplan: Denise, before we officially began, you were telling me about things that the American Bar Association, programs reaching out to women lawyers because there are special needs, recognized. Would you talk about that? What kinds of needs? It’s hard for me to understand. I’m an old guy, you know, and I’m coming from an old school. I’m just not sure that I’m fully aware. I think these same kinds of things exist for Hispanic lawyers and black lawyers. Ms. Hoggard: In looking at the Diana Blair study in conjunction with the Clinton School of Public Service from 2012, one of the things that they found was that southern men, 25.5 percent of them, have a bias against women. It is their belief system that women are somehow less than men. So I come to the table knowing that, according to the statistics, 25 percent, one out of every four, is going to perceive me as being less because of my gender. So when we look at going in front of a jury and trying to be persuasive on behalf of our clients, if I’ve got a jury of 12, I start counting off how many of those are men. And they are going to be naturally inclined not to believe what I’m saying because they think of me in a lesser way. So the American Bar Association has prepared a tool kit for the state bar associations to be able to use to help us deliver services to the women lawyers in our state. And that’s one of the things that I’m working with Karen Hutchins and with the Women in the Profession Committee and hopefully partnering with the Association of Women Lawyers to do. In addition to the perception of juries, it’s also that perception of clients towards women. It is additionally the genetics, the way that women come to the table having the issue of childbirth and those child-rearing duties that, from a socialization perspective and from a biological perspective, fall perhaps more heavily on a woman

in our profession. Women have to make their peace or deal with those issues as they go into practice. So it requires helping encourage and equip them and to provide support to them to be able to make those decisions and get those life-balance issues that we talked about addressed in a way that allows them to succeed in their profession and reach their full potential.

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Mr. Kaplan: Cory, is there a similar kind of thing with young black lawyers? Mr. Childs: Definitely. I love what Ms. Hoggard said about the stereotypes. I don’t have the statistics like she had but there are definitely stereotypes, negative stereotypes that exist in this country regarding AfricanAmericans. And a lot of firms, legal departments, corporations, have to recognize that. You just have to admit it. Start off, admit that there is bias. Maybe it didn’t come from your house, but it’s bias that exists that we have to fight through. Like Ms. Miller is saying, you have to be committed to diversity. But also, you have to be honest in recruiting. Are all the members and partners and associates in your firm top ten percent of their class? Were all of them on Law Review? The answer is probably no. So why then, when you seek out an African-American, they have to be that? Why do they have to be the superstar from the law school? I think that’s inherently unfair and it’s biased, it’s discriminatory. And you correct that by finding other ways to recruit African-Americans, Hispanic-Americans, women. Were they leaders in their respective organizations, letters of recommendation from the professors? Instead of just saying, oh, not top ten, not Law Review, that resume goes in the trash, when you, yourself, the recruiter or other members of your recruiting committee, probably were not that. Ms. Miller: Cory, I’m going to follow up with you, because I think that there are a lot of law firms that do not believe that they are biased. And if you said they were biased, they’d say, no, we’re not biased, we always choose the best candidate, whoever is the best candidate. Therefore, what you’re saying is maybe that black attorney, woman attorney, Hispanic attorney, wasn’t in the top ten percent of the class. What’s to say they are not still the best candidate because they bring something else to the table. There are other intangibles that people bring to the table that will add or enhance your firm. And you can train the person for these other aspects that you’re looking for. And that’s the thing. Sometimes,

Personal Injury Product Liability Medical Negligence Nursing Home Cases 1001 La Harpe Blvd., Little Rock, AR 72201 501-224-7400 1-888-4GARY GREEN (442-7947) students who graduate from law school may not have the background and the experiences that other students have, so they’re ahead of them on that. It’s not that they can not do the work, it’s that they just have not been in the environment to actually acclimate to that kind of particular area of practice or whatever. That should not be a deterrent in considering them, seriously considering them, and even hiring those applicants. I do see that as a problem. We’re not biased, we chose the top people. And if the black person or the woman who applied or the Hispanic applies, is the top person, they’ll get the job.

country has never been a meritocracy. Hiring decisions have quite often been based on those kind of connections that exist. I know firms that make those decisions all the time. And it’s more in the terms, both connections and what they think that person can bring to the firm. They’re the son of the CEO of X-bank, so if we hire them, there’s a greater chance we’ll get business from X-bank. I mean, those decisions are made all the time. They’re affirmative action.

Mr. Evans: The thing is that they won’t admit that. There’s a form of affirmative action that has existed over the decades that has always been in favor of white males. Where the firms have selected people that have connections, certain kinds of connection that most women and African-Americans do not have. They are the son of –

Mr. Evans: Sure it is. But I was basically saying though that people need to admit to that. That those are not decisions based purely on merit.

Ms. Miller: The banker. Mr. Evans: Or the managing partner’s roommate at college. You know, there are various kinds of, both collegiate connections, family connections, fraternity connections, church connections. That hiring is actually based on that reason and not necessarily based—this

Mr. Kaplan: That may be harder to do away with than creating it, an atmosphere.

Mr. Kaplan: We’ve been going for a little over an hour and I’ve learned a lot. I’m hopeful that when we get this transcript printed in The Arkansas Lawyer that the lawyers who read this will have learned a lot and that attitudes can change because of it. We could go on for a long time about this, and I’m hopeful that we can do this kind of thing again. Either at The Arkansas Lawyer or in another forum where we’ll have even more benefit to the legal community. We’re a better community here at the table. ■

Vol. 49 No. 1/Winter 2014 The Arkansas Lawyer


Special Member Spotlight

Members who have served in the military This list is a supplement to the feature published in the Fall 2013 issue of The Arkansas Lawyer magazine. The list is not inclusive and was compiled from member contributions. Special thank you to all members who have served our country.

USS Denver (LPD-9)



Fines F. Batchelor, Jr., in the Army Air Force Reserve, March 10, 1944 to May 25, 1945. Enlisted active duty in the Army Air Force from May 25, 1945 to December 12, 1945. Army Air Force Reserve and U.S. Air Force Reserve from December 13, 1945 until March 1, 1951. U.S. Air Force active duty from March 2, 1951 until November 28, 1951. Commissioned June 1951 a Second Lieutenant in U.S. Air Force Reserve with the OSI and transferred to JAG in 1962 and to the Air Force Academy Program in 1978, with a 28 year retirement as Lt. Col. in 1979 and retirement in 1987. Served dual, enlisted active duty and Reserve Commissioned service from June 1951 from November 28, 1951. Ronny J. Bell, Staff Sergeant in U.S. Air Force, Security Service, 1965-1969.





Jennifer Carlisle, Major (Ret.), 189th Airlift Wing, Arkansas Air National Guard. She enlisted on December 6, 1990, and was commissioned in July 1996 and retired in July 2011.

McKay 34

The Arkansas Lawyer

Sam N. Bird entered Air Force Officer Training School November 9, 1962, and was commissioned a Second Lieutenant February 4, 1963. Following nine months of training and being designated a graduate with honors from Intelligence Communication Officer’s School at Goodfellow AFB, TX, he was assigned to the Air Force Security Service’s Special Security Office (SSO) in Ankara, Turkey, in January 1964, was promoted to 1st Lt. August 1964, and to the position of OIC of SSO Ankara in January 1965. Upon completion of his tour of duty in Turkey in July 1966, he was assigned to Air Force Security Service Headquarters, Kelly AFB, TX, was promoted to Captain in March 1967, and remained at Kelly AFB until his honorable discharge from active duty on August 31, 1967, to attend UA-Fayetteville School of Law. Thereafter, he remained in the Air Force Reserve until discharge on November 8, 1968.

Judge David F. Guthrie, Lieutenant Colonel (Ret.) U.S. Army Reserves 1971-1999, active duty in Saudi Arabia during Persian Gulf War 1990-1991. Garrett Ham, First Lieutenant, 1 year, currently Trial Counsel for the 77th Aviation Brigade, Arkansas Army National Guard. Dave Wisdom Harrod, Captain U.S. Air Force Pilot (1965-1979), 62nd Tactical Airlift Squadron, Aircraft Commander; 64th Tactical Airlift Wing Headquarters Squadron, Squadron Commander. Arkansas Air National Guard: 154th Tactical Reconnaissance Squadron, Executive Officer; 189th Tactical Reconnaissance Group, Air Operations/Air Intelligence Officer. U.S.A.F.R.: 9006th Air Reserve Squadron, Disaster Preparedness Officer. William D. Haught, Captain, U.S. Army Judge Advocate General’s Corp from 19641968; served initially in the Eighth Army Support Command at Seoul, Korea, and subsequently in the Office of the Judge Advocate General (in the International Affairs Division in Washington, D.C. Robert L. “Skip” Henry, Capt, U.S. Marine Corp Reserve, Infantry and Military Police,1967-1972; Major, United States Army Reserve, JAG, 1973-1989, serving in 431st Civil Affairs Company and then the 32d JAG Detachment until retirement in 1989. James W. Hyden, U.S. Naval Officer Candidate School, Newport, RI, commissioned Ensign, US Naval Reserve, 1967. Served in the Pacific Fleet 1967-70 and onboard USS DENVER (LPD-9) as part of the commissioning crew (“plank owner”). He was an unrestricted line officer and a division officer and department head aboard DENVER, an amphibious landing ship. The ship carried, landed and supported a reinforced US Marine combat

battalion—about 1000 troops. After graduating law school, he stayed in the Naval Reserve, serving in units in Fayetteville, Norfolk, VA, Pine Bluff and Little Rock, serving until 1986, completing 20 years of service, retiring with the rank of Lieutenant Commander. He currently serves as the President of the USS DENVER Association, Inc., an Ohio non-profit corporation for war veterans. The USS DENVER (currently the longest serving active US Navy ship) will be decommissioned and transferred to the “mothball fleet” near San Francisco in September 2014. John C. Lessel, commissioned Ensign, United States Navy, December 1970. Completed aviation training and awarded wings at Meridian, MS in September 1972. Assigned to VA-127 (A-4 replacement air group), NAS Lemoore, CA from September 1972 to August 1973. Selected for and attended University of San Diego School of Law on Navy program from September 1973 through May 1976. Redesignated from line to staff as member of Judge Advocate General Corps during law school. Served at Naval Legal Service Office, San Diego, May 1976 through July 1979. Attained rank of LCDR, JAGC, USNR. Chester C. Lowe, Jr., Captain, U.S. Army Reserves; served two years active duty, 19621964, as an infantry officer, including service with the 1st Cavalry Division in Korea. Joseph P. McKay, Captain, United States Army 1988-1994, Artillery Platoon Leader Persian Gulf War 1990-1991, United States Military Academy Class of 1988. J. R. Nash, U.S. Air Force, 1960-1966. Served at Indiana University, then as Russian translator in Bering Strait, followed by tour at Command Headquarters, Security Service (military arm of National Security Agency). Donald E. Prevallet, U.S. Air Force, Colonel, 1959-1989. Eugene L. Schieffler, U.S. Air Force, Judge Advocate.

Conflict 1953-1954; Helicopter Pilot, Air Rescue Service. Charles R. Singleton, served four years in U.S. Navy 1968-1972, which included four campaigns in Vietnam. Served 28 years in Arkansas Army National Guard; Judge Advocate General Corps 1981-2009, serving nine years as State Judge Advocate. Retired in September 2009 at the rank of Colonel. Damon C. Singleton, currently serving as a Staff Judge Advocate Officer in Arkansas Army National Guard Judge Advocate General Corps in rank of Captain.

Singleton, C.

Singleton, D.

Thomas, C.E.






Corey E. Thomas, Major, U.S. Army National Guard, 2009-Present; U.S. Navy, Seaman, 1988-1989; U.S. Marine Corps, Supply and Acquisitions Officer, 1993-2003; 16 years of service. F. Mattison Thomas, III, E-3 (Private First Class) U.S. Army; active duty 1991 to 1993; served as a military Police Officer, Seirra Army Depot, Herlong California. Richard E. “Rick” Ulmer, U.S. Army 19691971 at Firebase Bronco with 523rd Signal Battalion, Americal Infantry Division. Judge Joe Volpe, Lieutenant Colonel: 1991 to Present - Judge Advocate General’s Corps Arkansas Army National Guard and US Army Reserves; 1988-1991 U.S. Army Field Artillery, Ft. Sill, OK, Corlu, Republic of Turkey, Ft. Carson, CO. John C. Wade, LCDR, USN, graduate of U.S. Naval Academy, Class of 1985, Surface Warfare Officer, served as Anti-Submarine Warfare Officer in USS Hayler (DD-997), two tours in Baltic Sea and one tour in North Sea tracking Soviet submarines during Cold War era. Stan L. Warrick is a 1977 graduate of the US Military Academy (West Point) and served 20 years in the military before retiring in 1997. He is a Gulf War Veteran and served 9 of 20 years overseas.

Dennis Shackleford, graduate of U.S. Air Force Pilot Training School in 1953; Korean The next member spotlight will feature attorneys who are foster parents, who have adopted children from foreign countries, and who serve as volunteers in a family law capacity such as Big Brothers or CASA. Please email to particpate.

USS Hayler (DD-997)

Vol. 49 No. 1/Winter 2014 The Arkansas Lawyer


Book Review

Private Placements and Limited Offerings of Securities: A Guide for the Arkansas Practitioner Francis S. Fendler (Arkansas Bar Association, 2011) Two Volumes

Book Review By A. Heath Abshure

Frances S. Fendler, Professor of Law at the University of Arkansas at Little Rock William H. Bowen School of Law, has written an indispensable tool for transactional attorneys, litigators, and all lawyers who may ever represent a client in forming, funding, buying, or selling a business or business interest. Private Placements and Limited Offerings of Securities provides the basics needed to identify when a security exists, discern how securities can be sold in compliance with Arkansas and federal law, and determine the various mistakes that can be made by failing to comply with applicable securities law. In the Preface, Professor Fendler sums up the thrust of her book as follows: Any person (whether an individual or a business or other entity) who offers or sells securities without registration and without satisfying an exemption from registration at both the federal and state levels has violated the securities laws. At a minimum, that violation will enable purchasers of the securities to rescind and get their money back. In addition, any person who offers or sells securities by deceptive means is potentially subject to liability—civil and perhaps criminal—regardless of whether the offering was registered or exempt from registration. The remainder of the book and the various supplements describe adeptly and concisely the various factual and legal issues that are contemplated by these three sentences. The Arkansas Securities Department encounters many issues resulting from sellers (and unfortunately, their lawyers) unaware that a transaction or series of transactions involve the issuance of a security, and that all sales of securities must be registered or 36

The Arkansas Lawyer

exempt from the registration requirements at both the state and federal level. Professor Fendler notes that failing to register or secure an exemption, at a minimum, will give rise to a private cause of action for rescission plus interest. It could also result in an enforcement action by the Securities and Exchange Commission or the Arkansas Securities Department. After introducing the practitioner to the Arkansas and federal securities laws, Professor Fendler moves on to answer the question: What is a security? This seemingly simple question is actually quite complex. There are distinctions between the Arkansas tests and federal tests for determining whether a security exists, and Arkansas courts can be imprecise in applying the various tests. Further, recent federal precedent contradicts older Arkansas cases and the Arkansas courts have yet to address these contradictions. Professor Fendler does an outstanding job of navigating these issues and providing much needed guidance for buyers, sellers, counsel, and others involved in securities transactions. She covers the Arkansas and federal tests applicable to investment contracts, stock, notes and other debt instruments, general partnerships, limited partnerships, limited liability partnerships, limited liability limited partnerships, limited liability companies, real estate interests, oil and gas interests, and other types of securities. She describes the differences between federal and Arkansas law, illuminating how these differences might trip up even an experienced lawyer. She also summarizes relevant factors that should be considered when confronted by a novel instrument, a case of first impression, or a conflict between federal and state law. Professor Fendler then examines another critical question: How does a seller sell

securities in compliance with Arkansas and federal law? All securities transactions must be registered or exempt from registration at the state and federal level. Registration is an expensive and time-consuming process, and generally appropriate for larger companies. Most lawyers involved in a securities transaction will want to make sure that either the security or the transaction meets the requirements of an exemption from registration. Professor Fendler describes succinctly the various ways that issuers may raise capital by selling securities without the cost of registration. She points out the distinctions between exempt securities and exempt transactions and lays out the requirements for the most common exemptions of both types. Most securities transactions will not involve exempt securities, but potentially exempt transactions. Professor Fendler describes thoroughly the Arkansas and federal transactional exemptions. Her analysis includes the most common transactional exemption, Rule 506 of Regulation D under the Securities Act of 1933. She notes that a proper Rule 506 offering, which will involve a notice filing and payment of a fee in states in which sales occur, is treated as a “covered security.” Accordingly, transactions in Rule 506 securities are subject to certain state law preemptive provisions contained in the National Securities Markets Improvement Act of 1996. Many lawyers are unaware that all sales of securities must be registered or exempt, including resales by passive investors. Professor Fendler devotes a chapter of her book to resales under federal law, noting that most resales of private company securities are conducted between private buyers and sellers. She discusses one of the most important resale exemptions, the so-called

“Section 4(1½) Exemption.” Her analysis is especially valuable as this exemption does not really exist under federal law but is an implied exemption that permits private resales of restricted or control securities. For the securities litigators, Professor Fendler gives a beneficial overview of the causes of action, defenses, and remedies under Arkansas and federal law that may be applicable to issuers, sellers, buyers, agents, brokers, control persons, and others. Not only does she detail civil actions, defenses, and remedies, she also describes the various administrative and judicial actions that may be brought by the Securities and Exchange Commission or the Arkansas Securities Department. Litigators will appreciate Professor Fendler’s summary of the somewhat complex interplay between Arkansas and federal law that will inevitably influence the determination of a proper cause of action, defenses, pleading standards, jurisdiction, and venue. Her discussion of the Private Securities Litigation Reform Act of 1995 and the Securities Litigation Uniform Standards Act of 1998 is very instructive for attorneys filing or defending a class action proceeding

Discount for ArkBar members

for violation of securities laws. Securities laws and rules change frequently. Professor Fendler provides periodic supplements covering new developments relevant to the book. These are published periodically on the Arkansas Bar Association’s website, where the book is available for ordering. Since publication in 2010, there have been two cumulative supplements and a new chapter 7A covering private placements and limited offerings after the Jumpstart Our Business Startups Act of 2012. This new chapter will be especially useful as it details drastic changes to the offering requirements

under Rule 506. Also the JOBS Act provisions establishing the federal crowdfunding exemption, which has received much press coverage and congressional attention, is covered in some length. An update to chapter 7A addressing the SEC’s recently released proposed crowdfunding rules is published on the Arkansas Bar Association’s website. Certainly, Professor Fendler has accomplished her goals with this book. It will serve as a very valuable addition to any law library. ■ A. Heath Abshure is the Commissioner of the Arkansas Securities Department.

ArkBar Handbooks are your shortcut to fast answers for your clients! Whether it is a substantive law question or a procedural issue, let ArkBar Handbooks be your guide. Learn from local leading lawyers in the following fields: Handling Appeals, Revocable Trusts, Probate, Domestic Relations, Bankruptcy, Real Estate Title Standards, Statute of Limitations, Debtor/Creditor, Workers Compensation, and Elder Law.” —Matthew L. Fryar Cypert, Crouch, Clark & Harwell, PLLC Co-Chair of the Editorial Board for Handbooks

More handbooks coming soon! For more information go to under the “For Attorneys” link or contact Michele Glasgow at 501-375-4606 or

Vol. 49 No. 1/Winter 2014 The Arkansas Lawyer


Editor’s Note In re Special Task Force on Practice and Procedure in Civil Cases, 2013 Ark. 303 (per curiam) On August 2, 2013, the Arkansas Supreme Court appointed a task force to address concerns arising from the 2013 Legislative session, including an effort to strip the Court of its exclusive rule making authority. In re Special Task Force on Practice and Procedure in Civil Cases, 2013 Ark. 303 (per curiam). The Court noted that the debate arose even though no “recommendations had been submitted to the Court for changes to rules of pleading, practice and procedure that were implicated in the debate, namely those “concerning ‘damages and/or liability in civil litigation.’” Id. at 2. The Special Task Force was appointed by the Court to “insure thorough examination of the concerns” raised in the legislative debate. Id. The Special Task Force issued its Interim Report at the end of December 2013. In re Special Task Force on Practice and Procedure in Civil Cases, 2014 Ark. 5 (per curiam). One topic addressed by the Task Force was allocation of fault and the interplay between Act 649 of 2003 and Act 1116 of 2013. The report was published, and as of this writing, the Court is seeking comment on the proposed rule changes. The Editors hope that the articles in this edition assist the Bench and the Bar in meeting the Court’s request for comments, which must be submitted by March 14, 2014. The opinion is found online at the below link: http://opinions.aoc.arkansas. gov/WebLink8/0/doc/319836/ Electronic.aspx


The Arkansas Lawyer

Legislative and Case Law Ties That Bind Act 649 of 2003 with Act 1116 of 2013

By Brian G. Brooks Section 1 of Act 649 of 2003 abrogated the common law doctrine of joint and several liability in “any action for personal injury, medical injury, property damage, or wrongful death … .”1 It replaced it with separate proportional liability, called “several” liability by the Act, an historical misnomer as discussed in St. Vincent Infirmary Medical Center v. Shelton.2 This abrogation created a right in each defendant sued to a judgment in which he or she is liable for no more than his or her proportional share of damages.3 Under the common law doctrine of joint and several liability, each joint tortfeasor was liable to the plaintiff for the entirety of the plaintiff’s indivisible injury. This was so even if the plaintiff sued and recovered from only one of many joint tortfeasors who combined to cause the entirety of the plaintiff’s injuries. Any joint tortfeasor who paid the judgment, or more than his or her share of the judgment, could then seek “contribution” from other tortfeasors to offset any overpayment of his or her equitable share.4 Act 649’s change in the common law required a procedural device to implement it. Section 2 of Act 649 was that device, directing that “the fact finder shall consider the fault of all persons or entities who contributed to the alleged injury or death or damage to property, tangible or intangible, regardless of whether that person was, or could have been, named as a party to the suit.”5 Section 2 then set out a procedure under which a defendant would give notice that he or she intended to seek an allocation of fault to a party not sued, or a party sued who had settled before trial. That non-party would then be placed on the verdict form and his or her “fault” would be assessed along with the defendant’s. This assessment would reduce the defendant’s proportional share of liability. This procedural device was declared unconstitutional by Johnson v. Rockwell Automation, Inc.6 Johnson did not replace that procedural device with something else; thus defendants in cases where absent tortfeasors could be held responsible for some of the plaintiff’s injuries looked to a contribution action to accomplish essentially the same result as section 2 of Act 649: a mathematical allocation of fault to every tortfeasor whether or not that tortfeasor was a party to the case from whom the plaintiff sought a money judgment at the time of the verdict. Plaintiffs advanced an instruction that informed the jury that it could not assess against the defendant in the case more than his or her separate proportional share of liability even if it was less than the plaintiff’s full damages. ProAssurance Indemnity Co., Inc. v. Metheny7 and Shelton, supra, dealt with that debate. Both of these cases involved tortfeasors who were initially sued by the plaintiffs but who settled. The Court held that Act 649 contained no right to allocation and that a contribution action seeking only an allocation of fault was not cognizable due to the language of the contribution statute. The jury instruction approach adequately instructed the jury as to the law Brian G. Brooks and was affirmed. is a solo The legislature enacted Act 1116 of 2013 practitioner who soon after the Shelton decision.8 Act 1116 focuses on alters the contribution statute in significant appellate practice ways in a clear effort to remedy the two flaws and complex indentified by Metheny and Shelton: want of legal research, a “right” to allocation and lack of a cogniwriting and zable cause of action for contribution solely advocacy for the to allocate fault. Two of its provisions are plaintiff’s bar. directed toward these points. The first is the

new definition of “joint tortfeasor.” It reads, “Joint tortfeasor” means two (2) or more persons or entities who may have joint liability or several liability in tort for the same injury to person or property, whether or not judgment has been recovered against all or some of them.9 The second is the alteration to the statutorily created right to contribution in which Act 1116 creates a right to allocation. Section 3(c) reads, The right of contribution is not limited to money damages but also includes the right to an allocation of fault as among all joint tortfeasors and the rights provided for in § 16-61-204.10 And that is the status of the governing law at this point in time. Joint and several liability has been abrogated in large measure, and the legislature has created a substantive right to allocation of fault through Act 1116. It allows defendants to advance that right by way of a cause of action for contribution, but in order to do so, defendants must, in all likelihood, use either Rule 13 or Rule 14 of the Rules of Civil Procedure to assert the claim against a non-party and thereby make that non-party a party to the case for purposes of allocation. Endnotes: 1. 2003 Ark. Acts No. 649 § 1(a). 2. 2013 Ark. 38. 3. Id. § 1(b). 4. This description is a vast over-simplification. For detailed discussion of the doctrine of joint and several liability that is not necessary for this report see Prosser, Joint Torts and Several Liability, 25 Cal. L. Rev. 413, 414 (1937); Wright, The Logic and Fairness of Joint and Several Liability, 23 Mem. St. U. L. Rev. 45 (1993). 5. Id. § 2(a). 6. 2009 Ark. 241, 308 S.W.3d 135. 7. 2012 Ark. 461. 8. 2013 Ark. Acts No. 1116 § 2(1). Presumably due to Shelton’s highlighting of the historical misnomer contained within Act 649, Act 1116 defines “several liability” to be separate proportional liability. 2013 Ark. Acts No. 1116 § 2(2). 9. Id. § 3(c). 10. The rights provided for in § 16-61-204 are a pro rata reduction of the judgment or set-off against all other tortfeasors based on a settlement and an allocation of fault to a settling defendant (which is redundant). ■

The Uniform Contribution Among Tortfeasor’s Act As Amended by Act 1116 of 2013: Civil Justice and Apportionment Part II —Time To Trust The Jury* By Scott M. Strauss The Civil Justice Reform Act, Act 649 of 2003,1 provides in part that the liability of any defendant for “compensatory or punitive damages shall be several only and shall not be joint.” The Act also created a mechanism for the apportionment of fault between parties and non-parties.2 However, in Johnson v. Rockwell Automation, Inc.,3 the Arkansas Supreme Court held the non-party mechanism constituted an unconstitutional intrusion on the judiciary’s exclusive right to craft procedure. Yet, in the same opinion, the Court stated: Clearly the law modifying joint and several liability, Ark. Code Ann. § 16-55-201, defines the right of a party, a defendant, and is substantive.4 In the years following the Johnson decision, many courts struggled with the means by which to implement this new, substantive, right to several liability.5 Historical Context for Apportionment or Contribution Arkansas courts have long struggled with the issue of multiple tortfeasors, comparative fault, contribution, and a way to coalesce these concepts in an effort to achieve a “fair” result. An illustration of this struggle may be found in the Court’s decision in Walton v. Tull,6 in which the jury apportioned liability as 10% to the plaintiff and 10%, 20% and 60% to the defendants.7 The Court held that the 10% defendant was jointly liable for the entire judgment, despite having fault no greater than the plaintiff's.8 Fairness One assumes it was this sort of inequity that led to enactment of the Arkansas Civil Justice Reform Act, Act 649 of 2003 [ACJRA], declaring a substantive shift in the law from “joint and several” to “several” liability. One further assumes the aim of any system of justice is “fairness.” Indeed, the term “just” is defined as “guided by truth, reason, justice and fairness.”9 Surely it was that sense of justice and fairness that led the legislators drafting the ACJRA to see that each person or entity was held to account for his own fault, his own negligence, but no more. On the other hand, some take a different view, describing the General Assembly’s effort as merely an attempt to “diminish recoveries for victims of tortious personal injury through a variety of mechanisms.”10 However, they Scott M. Strauss must also acknowledge “target defendants” leads the Barber are likely to pay more than their apporLaw Firm’s tioned or “fair” share in the absence of a Insurance 11 mechanism for apportionment. This leads Coverage one to the inescapable conclusion that those Practice Group. opposed to apportionment must be willing to subordinate “fairness” to the greater goal of maximizing “recoveries” without regard to the actual fault or liability of the paying defendant. Vol. 49 No. 1/Winter 2014 The Arkansas Lawyer


Tortfeasors Act reads in part as follows:

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The Gap Must Be Filled As noted by the Court in Sewer Improvement District v. Delinquent Lands: “A right without a remedy to declare it is not a valuable right.”12 One can only assume that both the General Assembly and the Supreme Court intended the right to several liability to be a “valuable right.” How then does the “valuable right” to several liability take form? Act 1116 of 2013 is the Answer and Survives Constitutional Challenge When considering a constitutional challenge: It is well settled that there is a presumption of validity attending every consideration of a statute’s constitutionality; every act carries a strong presumption of constitutionality, and before an act will be held unconstitutional, the incompatibility between it and the constitution must be clear. . . . Any doubt as to the constitutionality of a statute must be resolved in favor of its constitutionality. [Johnson.13] In its amended form the Arkansas iteration of the Uniform Contribution Among 40

The Arkansas Lawyer

§16-61-201. Definitions. As used in this subchapter: (1) “Joint tortfeasor” means two (2) or more persons or entities who may have joint liability or several liability in tort for the same person or property, whether or not judgment has been recovered against all or some of them; and (2) “Several liability” means that each person or entity is liable only for the amount of damages allocated to that defendant in direct proportion to the defendant’s percentage of fault. § 16-61-202. Right of contribution – accrual – prorata share. (a) The right of contribution exists among joint tortfeasors. ... (c) The right of contribution is not limited to money damages but also includes the rights and allocation of fault as among all joint tortfeasors and the rights provided for in § 16-61-204. ... §16-61-204. Release – effect on injured person’s claim and on right of contribution. (d) When the injured person releases a joint tortfeasor, the remaining defendants are entitled to a determination by the finder of fact of the released joint tortfeasor’s prorata share of responsibility for the injured person’s damages. Attention is also drawn to Section 1 of Act 1116: It is the intent of the General Assembly that the rights afforded to joint tortfeasors by this Act apply with equal force after modification of joint and several liability as provided in § 16-55-201, and that none of the rights granted to tortfeasors by this Act, including allocation of fault and credits for settlement entered into by other joint tortfeasors, shall be denied to joint tortfeasors.14 It is clear from the language in both the legislation and the statute the General Assembly intended for the allocation of fault by a fact finder to be a right, not a procedure. Consequently and as noted by the Court in Roy v. Farmers & Merchants Insurance Company, the judiciary must “give effect to

the intent of the General Assembly.”15 Though the amended UCATA (Act 1116) creates a substantive right to an allocation as to all “joint tortfeasors,” the judiciary is free to craft the procedure by which this right is exercised. While it seems the easiest and best method is to simply send a single verdict interrogatory asking the jury to apportion fault as to all “joint tortfeasors,” the court is free to conduct bifurcated “allocation” proceedings or any other procedure which gives effect to the substantive right of fact finder apportionment as between all “joint tortfeasors.”16 The Challenges to Act 1116 Make No Sense The typical challenge17 to the constitutionality of Act 1116 argues the non-party provisions of the AJCRA18 are unconstitutional and again argue this determination was reaffirmed in subsequent decisions.19 It appears those on opposite sides of this issue have at last found common ground. The constitutional challenge to the non-party fault procedure set forth in Ark. Code Ann. § 16-55-202 was sustained because of the constitutional “separation of powers” doctrine. Unless and until the framers of a constitutional amendment revisit that issue, it is decided. On the other hand, the Court in Johnson20 did not hold the procedure or mechanism in the statute was itself suspect. Rather the court held that any attempt to create procedure, good or bad, by the General Assembly was constitutionally prohibited.21 Those opposed to the shift from “joint and several” to “several” liability frequently make the argument that under ancient law “joint and several” has the same meaning as “joint.”22 We are not required to engage in those sorts of linguistic gymnastics. Just as the Court in Johnson held that the attempt to create procedure by the General Assembly (the inclusion of non-parties on verdict forms) was constitutionally infirm, the Court stated the modification of the then prevailing law of “joint and several” liability to “several” liability was substantive, and consistent with the Arkansas Constitution,23 solely within the purview of the General Assembly. The next argument typically advanced by those challenging Act 1116 centers on those portions of the Act which state: (c) The right of contribution is not limited to money damages but also includes the right to an allocation of fault as among all joint tortfeasors and the rights provided for in § 16-61-204.24

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Vol. 49 No. 1/Winter 2014 The Arkansas Lawyer



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Cell: 479-244-6582 FAX: 970-987-5100 e-mail: See CV: and (d) When the injured person releases a joint tortfeasor, the remaining defendants are entitled to a determination by the finder of fact of the released joint tortfeasor’s prorata share of responsibility for the injured person’s damages.25

It is apparently this right to a determination by the “finder of fact” which causes the most angst among those challenging Act 1116. By way of example and as noted in a brief to a trial court, one plaintiff stated: Following 16-61-204(d) as it is written requires trial courts to submit a charge seeking allocation to the jury rather than use other procedures such as jury instructions, post-verdict findings, or other procedures to recognize the claimed right to contribution.26 It appears what really concerns those opposed to Act 1116 is the right to a decision by a jury on the issue of the allocation of fault.27 So, is an allocation of fault, by a jury, a substantive right or merely a procedural issue? As discussed supra, the General Assembly, in the language of Act 1116, stated that allocation of fault as between all joint tortfeasors by the fact finder is a right. Likewise, the Seventh Amendment to the United States Constitution guarantees the right to a jury trial in federal civil proceedings (as do the courts of Arkansas) and there is no quibbling as to whether this right is substantive or procedural.28 Consequently, one is left to wonder if the true motive of those opposed to Act 1116 is to avoid full disclosure to the jury? Conclusion Trust the jury . . . but, only, with all the facts. Not only is apportionment “fair,” following Act 1116, it is the law. 42

The Arkansas Lawyer

Endnotes * My thanks are extended to my law partner, Gail Gaines, for her help in editing this article. 1. Codified at Ark. Code Ann. § 16-55201 et seq. 2. Ark. Code Ann. § 16-55-202. 3. 2009 Ark. 241, 2009 Ark. LEXIS 274. 4. 2009 Ark. 241, at 6, 2009 Ark. LEXIS 274, at 8. 5. Montgomery v. A. W. Chesterton Co., Case No. CV2010-209, Crawford Circuit; Reed v. Malone’s Mechanical, Inc., W.D. Ark. Fort Smith Division Judge Dawson; Reed v. Malone’s Mechanical, Inc., Case No. 2:11cv-02135, W.D. Ark. Fort Smith Division Judge P. K. Holmes; Robinson v. Power Equipment Company, Case No. CV2010108-6, Ouachita Circuit; ProAssurance Indemnity Company v. Metheny, 2012 Ark. 461, 2012 Ark. LEXIS 499; St. Vincent Infirmary Medical Center v. Shelton, 2013 Ark. 38, 2013 Ark. LEXIS 51; Robbins v. English, Case No. CV2010-736-2, Garland Circuit; Hubner v. Thompson Const. Co., Case No. 60 CV 2011-2415, Pulaski Circuit. 6. 234 Ark. 882, 356 S.W.2d 20 (1962). 7. Id. at 891. 8. Id. at 894-95. It is unclear from the Court’s opinion in Walton v. Tull which of the defendants paid what amount. However, it is crystal clear the 10% defendant was exposed to the entire verdict despite having fault no greater than the plaintiff. 9. The Random House Dictionary of the English Language Second Edition Unabridged, P. 1040. 10. James Bruce McMath, Arkansas Civil Reform Act of 2003 and Johnson v. Rockwell Automation, Inc., The Arkansas Lawyer (Fall 2011). 11. Id.

12. 188 Ark. 738, 749, 68 S.W.2d 86 (1934). 13. 2009 Ark. 241, at 4, 2009 Ark. LEXIS 274, at 5. 14. Act 1116 of 2013, § 1. 15. Roy v. Farmers & Merchants Ins. Co., 307 Ark. 213, 216, 819 S.W.2d 2, 4 (1991). 16. Thanks and acknowledgment are given to Michael Shannon and Michael Heister of Quattlebaum, Grooms, Tull & Burrow, PLLC from whom the inspiration and much of the language of the several preceding paragraphs was “borrowed.” 17. See, i.e., Shearer v. American Honda Motor Co., Case No. CV-2012-172-4, Cleburne Circuit. 18. Ark. Code Ann. § 16-55-202. 19. St. Vincent Infirmary Medical Center v. Shelton, 2013 Ark. 38, 2013 Ark. LEXIS 51, and ProAssurance Indemnity Company v. Metheny, 2012 Ark. 461, 2012 Ark. LEXIS 499. 20. 2009 Ark. 241, 2009 Ark. LEXIS 274. 21. Id. 22. See, i.e., Arkansas Civil Reform Act of 2003 and James Bruce McMath, Arkansas Civil Reform Act of 2003 and Johnson v. Rockwell Automation, Inc., The Arkansas Lawyer (Fall 2011). 23. Article 4, Section 2 and Amendment 80, Section 3. 24. Act 1116 § 3, codified as Ark. Code Ann. § 16-61-202(c). 25. Act 1116 § 5(d), codified as Ark. Code Ann. § 16-61-204(d). 26. Plaintiffs’ Reply Brief, Shearer v. American Honda Motor Co., Case No. CV 2014-172-4, Cleburne Circuit. 27. This is somewhat ironic in light of the following language found on the Arkansas Trial Lawyers Association’s web site: “Our members are attorneys dedicated to protecting the health and safety of Arkansas families … and to preserving each and every citizens’ right to a trial by jury … .” 28. See also Ashley v. Little Rock, 56 Ark. 391, 19 S.W.2d 1058 (1892), for a discussion of the right to a decision by a jury in Arkansas in civil cases. ■

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The Empty Chair Act— A Critique of Act 1116 By Benjamin McCorkle Act 1116 is a Legislative attempt to solve a court rule-making problem. Act 649 of 2003 created a “procedure” for allocating “fault” to all possible tortfeasors including non-parties. The Johnson Court declared that procedure unconstitutional.1 An attempted remedy, a “contribution” cause of action, was held not to exist in Shelton because Act 649 eliminated joint tortfeasors as defined in the Uniform Contribution Among Tortfeasors Act (UCATA).2 The Legislature enacted Act 1116 in an attempt to fill the void identified by Shelton. However, it is fraught with constitutional problems and drafting issues. A. Act 1116 Unconstitutionally Creates a Procedure Governing the Practice of Law. Act 1116, ultimately, suffers the same defect as Act 649. It legislatively creates a constitutionally impermissible procedure. In the 2009 Rockwell case, the Supreme Court held that the section permitting jury allocation of fault to a non-party violated the separation of powers under article 4, § 2 and amendment 80, § 3 of the Arkansas Constitution. Subsequently, in Metheny & Shelton, the Arkansas Supreme Court struck down efforts to place non-parties on the jury ballot under UCATA.3 Act 1116 also creates a procedure to place a non-party before the jury for allocation of fault. Moving the procedure from one statute to another does not cure its constitutional problems.4 B. Retroactive Application of Act 1116 Unconstitutionally Impairs Vested Rights. Section 8 of Act 1116 applies the Act retroactively to March 25, 2003. While the General Assembly can create a remedial act with retroactive application, it has no power to divest contractual, legal, or equitable rights previously vested.5 Any tort decision handed down over the past 10 years could be challenged retroactively under Act 1116. Each decision created one or more vested legal rights, and settlement contracts also created vested rights. It is difficult to conceive of any circumstances under which a retroactive application of this Act would not deprive someone of a vested right.6 C. Act 1116 is Ambiguous and Confusing

Act 1116 tries to create a method for allocating fault through a contrived cause of action for contribution after Act 649’s procedure was struck down. In other words, the legislature was trying to fill a procedural round hole with a substantive square peg, resulting in an ambiguous and confusing statute. The rules governing the practice of law are adopted by the Arkansas Supreme Court upon the recommendation of the Rules Committee after the proposed rule had been vetted by the bar. Our rule-making process allows a thorough discussion of the proposed rule and an examination of its intended (and unintended) impact before it is adopted. This is in stark contrast to Act 1116’s attempt to force a procedural rule into an existing statutory structure. We begin with the definition of “a” (singular, although the definition is plural) joint tortfeasor as “two (2) or more persons or entities who may have joint liability or several liability in tort for the same injury. . . .”7 This definition can be interpreted broadly to include nearly anyone. The joint tortfeasor need not have any actual liability; it is only necessary that he “may” have some liability, no matter how remote. On the other hand, it may be interpreted to significantly limit potential joint tortfeasors. Liability can only be established in court. The Act 1116 definition excludes many tortfeasors such as immune (for example, those who are immune under the Workers Compensation Act, the situation in the Rockwell case) or unidentified actors, employers, and actors not subject to personal jurisdiction. “Several liability” has a well-accepted definition in American jurisprudence—where multiple tortfeasors are responsible for an indivisible injury, each may be held liable for the entire injury.8 Act 1116, section 2(2), in an effort to make it fit within the UCATA, defines “several liability” to mean exactly the opposite, “that each person or entity is liable only for the amount of damages allocated to that defendant in direct proportion to that defendant’s percentage of fault.” Section 2 of Act 1116 expands the concept of contribution to include allocation of fault in addition to monetary contribution, and, ironically, it appears to allow allocation of fault

without any monetary contribution to the defendants or recovery by the plaintiff. The original UCATA only allowed an action in contribution against a joint tortfeasor that did not pay his fair share. Section 5 includes the real meat of the Act. It appears to limit jury allocation of fault to a tortfeasor that was a defendant, but was released. The Act makes no differentiation between a defendant who was released as a result of a settlement and a defendant released because he was improperly named or had no actual liability. Either can be placed before the jury for allocation of fault. Suppose you have a “joint tortfeasor” who settled before the case was filed. Section 5(d) states: When the injured person releases a joint tortfeasor, the remaining defendants are entitled to a determination by the finder of fact of the released joint tortsfeasor’s pro rata share of responsibility for the injured person’s damages. [Emphasis added.] If the tortfeasor was never named as a defendant, then he cannot be said to have been released from the case, and the named defendants are not “remaining defendants;” they are the only defendants. The Act is, at best, ambiguous as to whether or not a nondefendant (non-party) to the legal action can be put before the jury for allocation of fault.9 Section 5’s drafting creates even more problems. Assume plaintiff sues D1 and D2. D1 settles for $100. The jury awards plaintiff $300 attributing 50% fault each to D1 and D2. D2’s liability is $150. Plaintiff gets a total of $250. Plaintiff is short $50, but that’s life. D2 pays Benjamin McCorkle is cofounder of the Beacon Legal Group, a general service law firm emphasizing Internet law.

Vol. 49 No. 1/Winter 2014 The Arkansas Lawyer


To All The Opposing Attorneys We’ve Loved Before Keep us in mind when your friends must be sent out your door. We’ll be glad they came along. We’ll celebrate you in a song. We’ll make their cases’ values soar (or try our best).

tortfeasor must be joined before the jury can consider his fault allocation? If so, he must be served and allowed to answer and defend. Act 1116 also failed to repeal section 16-61209 that mandates that Arkansas’s UCATA be construed “to make uniform the law of those states that enact it.” D. Act 1116 Lacks Procedural Safeguards If a non-party is to be added to the jury form for allocation of fault, you would expect a requirement both of notice and of a sufficient time for the plaintiff to properly prepare his case in light of the new party. However, Act 1116 contains no such procedural safeguards. The ability to add, without notice, an eleventhhour party to the jury ballot leads to the extreme prejudice of the plaintiff. E. Conclusion – Let the Rules Committee Draft the Rules, not the Legislature So what is the simple solution that should have been sought out instead of Act 1116? Certainly, a plaintiff should be wholly compensated for his injuries, no more, no less, and a defendant should pay his fair share, no more, no less. The solution is that the Court, the body charged with enacting Rules of Pleading, Practice and Procedure, should act to fill the void. And it has. It has appointed a task force that is hard at work filling the void with fair, sensible, logical Rules. In the meantime, we should at least remove the word “Uniform” from the title, because Act 1116 makes this code section absolutely unique to Arkansas.

Carter C. Stein

Sam Ledbetter

Ross Noland

James Bruce McMath Phillip H. McMath

Neil Chamberlin

Charles Harrison

Will Bond

Loving it since 1953 | 711 West 3rd, Little Rock, AR 72201 | 501.396.5400,

only his share, and D1 made a good settlement. D1 had the opportunity to settle his case, pay to not have to worry about continued litigation and end his involvement, and he took it. Plaintiff accepted the money in hope that he too made a good settlement. That is fine. However, section 5 seems to call for another reduction. Section 5(c)(1) states that D2 gets his judgment reduced by the amount of the 44

The Arkansas Lawyer

settlement or the pro rata share of the settlement, whichever is greater. So, D2’s judgment is reduced by $100 (settlement), and P only recovers $50 from D2, in spite of the jury’s award. That is a double dip, exposing Act 1116 to an Article V, section 32 challenge. Section 16-61-207 (third party practice, etc.) is unchanged except for the deletion of paragraph five. Does this mean that a non-party

Endnotes *The author thanks Brian Brooks and Gerry Schulze for assistance with this article. 1. Johnson v. Rockwell Automation, Inc., 2009 Ark. 241, at 8. 2. St. Vincent Infirmary Medical Center and Catholic Health Initiatives v. Shelton, 2013 Ark. 38. 3. Proassurance Indemnity Company, Inc. v. Metheny, 2012 Ark. 461. 4. One circuit court has held Act 1116 invades the Supreme Court’s rule-making authority. 5. Pyle v. Webb, 253 Ark. 940, 489 S.W.2d 796 (1973); Ark. Const. art. 2, § 17; U.S. Const., art. 1, § 10. 6. Two circuit courts have held the retroactive provisions unconstitutional. 7. Act 1116 of 2013, section 2(1) (emphasis added). 8. Black’s Law Dictionary 1374 (6th Ed 1990). 9. Based on argument before a circuit court and currently on appeal. ■

Vol. 49 No. 1/Winter 2014 The Arkansas Lawyer


The Aging Lawyer: Dealing with Cognitive Impairment in Arkansas’s Legal Community By Sarah Cearley, PhD, LCSW The lawyer told me this was not a call he wanted to make. Just talking to me about his older, but respected and distinguished, partner in this way caused him tremendous anxiety and guilt. But the call was made in desperation. The senior attorney was beginning to make mistakes in the courtroom, with her clients, and in her writing. The frantic questions were, “What are we really seeing? What do we do? How do we talk to her?” This scenario is being played out in lawyer assistance program (LAP) offices across the nation. For the past 13 years, Arkansas Judges and Lawyers Assistance Program (JLAP) has been helping lawyers and judges with problems related to substance abuse, mental health disorders, disability, trauma, and aging. The first few years saw referrals mostly for substance abuse. In the past 10 years, there has been a steady climb in referrals about mental health issues. Since 2011, referrals about older lawyers and their diminished capacity to practice law have begun to come to us. The first wave of baby boomers hit age 65 two years ago and the tsunami of aging lawyers is just beginning, as many of them are continuing to practice longer than earlier generations. The number of adults over 65 in the U.S. will double in the next 25 years, from 35 million to 70 million, and the proportion of older adults will increase from about 13% to 20% of the population.1 The fact is with growing numbers in the aging population, there are and will be plenty of lawyers in their 80s and 90s who still have intact mental abilities along with the emotional maturity and wisdom that comes with experience. JLAP is reaching out to those who will experience or those whose colleagues will experience cognitive loss to the point that they either need to change how they are practicing or no longer practice law. We have seen a lawyer’s threatened identity as a lawyer, financial setbacks from the recent recession, and the lack of being prepared financially for retirement as causes for continuing law practice beyond one’s mental capacity to do so. It is to these lawyers and judges and those who work with and care about them that we offer guidelines and support to help them retire, without embarrassment or admonishment. 46

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A definition of a cognitive impairment in the legal profession suggested by the ABA Commission on Lawyer Assistance Programs (CoLAP) is the inability to practice law with the skill required to insure the safety and protection of the public. Normal Age-Related Cognitive Decline Until about the age of 80, 90% of the population will not be cognitively impaired. In fact, decades of research have shown that the brain can and does change and grow throughout life. Our brains continue to create new brain cells and new neural connections and pathways in response to new experiences and learning. However, they do this more slowly and fewer neurotransmitters are produced than in earlier years. This normal decline in cognitive function happens to us all: our processing speed is slower, especially of new or novel things; retrieval of long-term information takes longer; learning new information is more challenging; it becomes more difficult to maintain concentration and tune out distractions; “senior moments” become more common; and multitasking is significantly affected. On the other hand, scientists agree that while the efficiency of our working memory storage declines, we can and do rely on past experiences and learned wisdom in decisionmaking. Research indicates that people who have a “cognitive reserve” as a result of high I.Q., lengthy and challenging education, a high level of verbal resources, and good health habits, i.e., not smoking, healthy diet, and exercise—all representative of a typical lawyer’s profile—can withstand damage to the brain for longer than those without this “reserve.”2 Cognitive Impairment Damage to a person’s cognitive functioning can occur in as many as 70 different ways. Medical issues that can cause cognitive impairment include thyroid disorder; some vitamin deficiencies; rheumatoid disorders; cancer; head trauma; addiction to substances; mood disorders; accidents; infections; and drug reactions. If the decline from some of these sources is found soon enough, it can be reversed or

diminished by addressing the cause. A medical assessment is absolutely necessary if the lawyer is to know this and discover what she can do to get healthy again. On the other hand, the decline may not be reversible. In this case, a medical assessment is again absolutely necessary to best understand the problem and to mitigate harm to the lawyer, her clients, and her firm. The potential of decline in cognitive functioning grows as one ages. Eighty percent of people with moderate cognitive impairment develop dementia within eight years. Dementia is the result of organic deterioration of the brain’s mental processes, with the addition of the impaired ability to think abstractly and systematically, impaired judgment, and personality change. The most common types of dementia are Alzheimer’s disease, vascular dementia, alcoholic dementia, and Lewy body dementia. Age, genetics, lifestyle, medical conditions, and accidents are the most common risk factors for all types of dementia. As in other well-researched diseases, evidence suggests that diet and exercise (especially exercise) can reduce the risk of dementia. A study of 18,766 female nurses found that those with the highest level of exercise had a 20% lower chance of being cognitively impaired on tests of memory and general intelligence.3

Sarah Cearley, PhD, LCSW, is the Executive Director of Arkansas Judges and Lawyers Assistance Program.

What This Means to Arkansas Lawyers A definition of a cognitive impairment in the legal profession suggested by the ABA Commission on Lawyer Assistance Programs (CoLAP) is “the inability to practice law with the skill required to insure the safety and protection of the public.” Arkansas lawyers should be aware of the signs of a colleague’s cognitive impairment: missed appointments; missed deadlines; repeatedly making mistakes; confusion; problems with comprehension and verbal expression; forgetfulness; disheveled appearance and poor hygiene; irritability; failure to communicate with clients, other counsel, or the courts; irregular office hours; disciplinary problems; family member’s concerns; and upset or angry office staff. Some large and midsized firms in Arkansas, but not all, have policies in place on how to accommodate their aging lawyers, with mandatory retirement requirements in place. This generally is not the case for smaller firms, office-sharing arrangements, and solo practitioners, many of whom are in rural Arkansas with few resources to provide a safety net. Getting assistance requires the courage and caring to take the steps to ask, confront, refer and engage support factors. Once the lawyers in the firm recognize the signs of cognitive impairment (as opposed to normal cognitive decline), they are faced with having a difficult conversation with their friend, mentor, partner, or boss. Susan Stone, JD, MD, writes that it is a common myth that talking about these kinds of behavioral changes might increase the emotional damage or cause a rupture in a friendship. The literature shows that this is not the case; most individuals with psychiatric illness are relieved to be asked. While it seems easier to deny and “work around” a colleague with cognitive impairment, it can be career- and sometimes life-saving to take the difficult step raising the issues and expressing your concern.4 The next step is to help the senior lawyer understand what you are seeing and to have in hand referrals for treatment. Friends and family members are invaluable resources for engaging the lawyer in the appropriate forms of care. And JLAP can provide you with referrals and treatment. Scott Mote, director of Ohio Lawyers Assistance Program, suggests that the point at which an attorney needs to make changes or retire depends upon how much decline he is experiencing. Regardless of the issues facing the attorney, it is essential that those involved with him create a positive environment and good rapport to uphold the dignity of the individual. We must respect how much one’s self-worth, self-esteem, and self-confidence are all connect-

ed to his identity of being a lawyer. This difficult life transition can be made more tolerable if we allow the aging lawyer as much control and input as possible during this process. Options should be discussed with him: assessment, treatment, limiting of practice, co-counsel, and many other avenues that could assist him.5 The JLAP website,, has a Cognitive Impairment Worksheet6 and Guidelines for Intervening with the Lawyer Exhibiting Impairment.7 We suggest that you download these helpful guides and call us at 501-907-2529 or email us at confidential@ Our clinical staff is available to help you with the process. Endnotes: 1. Administration on Aging ( 2. Gunderson, Doris, MD. Aging Attorneys. Grey Matters: Perspectives on Aging Lawyers and Cognitive Impairment. Webinar. (August

21, 2013). 3. Badger, M. & Long, M. Putting the brakes on Age-Related Cognitive Decline. In Sight for Oregon Lawyers and Judges. (Dec. 2012). 4. Stone, Susan, JD, MD. Identifying and assisting lawyers and judges with cognitive impairments. National Council for Lawyer Assistance Programs. (October 9, 2012). 5. Mote, Scott. Dealing with aging lawyers. Grey Matters: Perspectives on Aging Lawyers and Cognitive Impairment. Webinar (August 21, 2013). 6. Adapted from the Capacity Worksheet for Lawyers, Assessment of older adults with diminished capacity: A handbook for lawyers, by the ABA Commission on Law and Aging and the American Psychological Association (2005). 7. Adapted from the Texas lawyer Assistance Program’s The senior lawyer in decline: Transitions with dignity—ABCs of helping the senior lawyer in need. ■

Vol. 49 No. 1/Winter 2014 The Arkansas Lawyer


Arkansas Supreme Court Historical Society

Thomas J. Lacy Superior Court Judge and Supreme Court Justice of Arkansas

by J.W. Looney Thomas J. Lacy was one of two men, the other being Edward Cross, who served both as an Arkansas Territorial Superior Court Judge and as a Justice on the Arkansas Supreme Court—the first by appointment by President Andrew Jackson; the second by election of the Arkansas legislature. Lacy was born in Rockingham County, North Carolina, about 1806, the son of Batie Locke Lacy and Elizabeth Overton. His mother was a cousin to Judge John Overton of Nashville, Tennessee, a close friend of Andrew Jackson. After studying at Chapel Hill College in North Carolina, graduating in 1825, Lacy read law in the office of John Pope, in Springfield, Kentucky. Pope, too, was close to Andrew Jackson and was to later serve as governor of the Arkansas Territory. At some point Lacy moved to Nashville and from there he came to Arkansas as a Territorial Superior Court Judge in 1834. He settled in Monroe County and was elected as a delegate to the constitutional convention to create the new state government. Under the new constitution, the legislature was to elect justices to the Arkansas Supreme Court. Lacy, Daniel Ringo and Townsend Dickinson were elected. By lot Lacy drew an initial four-year term and stood for re-election in 1840 when, after some controversy, he was re-elected to a full eight-year term. Justice Lacy was described as tall and slender, with black hair and eyes, with an apparent gift in speaking with “graceful and pleasing diction” and was generally considered the most popular justice of the three. Albert Pike, who practiced before Lacy in the Superior Court in Chicot and Phillips county, and was a principal in the banking controversy which was before the Supreme Court during Lacy’s service, referred to Lacy as contributing “effervescence and elan” to the court. He suggested Lacy had “broad and enlightened views” which neutralized the “literalism and stunted verbal interpretations of Ringo” and gave “breadth and fullness” to the conclusions of Dickinson. Pike relates that he was initially admitted to practice law by Judge Lacy after the judge “perfunctorily” quizzed him, com48

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menting that, unlike a doctor, a lawyer could take no one’s life. A good example of Lacy’s approach could be seen in Old State House Hawkins v. The Governor1 Courtesy Old State House Museum where a writ of mandamus had Artist Ken Oberste been sought to compel the governor to issue a commission to In spite of this controversy, Justice Lacy a public official—the Commissioner of Public was re-elected to the court in 1840 and stood Buildings. (The controversy was between the in high regard with the bar for his integrity legislature, which had selected a Commissioner, and fairness. Unfortunately, his long term and the Governor who had appointed a differill health began to worsen so he resigned ent person.) Lacy, citing Marbury v. Madison, from the court June 7, 1845. Interestingly, concluded that a court had no constitutional Judge Edward Cross, who had served on the power to compel the executive to perform legal Territorial Superior Court with Lacy, was or constitutional duties. appointed to complete Lacy’s term. Lacy Lacy’s most influential opinion, according moved to New Orleans where he successfully to Professor Robert Wright, was Moody v. practiced law until his premature death from Walker2 which set out basic interpretations cholera on January 11, 1849. in property law. Among other conclusions, the court stated that the intention to create Endnotes: only a life estate in a devise must be clear and 1. 1 Ark. 570 (1839). explicit. Language creating an absolute right, 2. 3 Ark. 147 (1840). even if followed by a subsequent attempt at 3. Ex parte Conway, 4 Ark. 302 (1842). limitation, will be in favor of the vested right. 4. Id. at 406-408. In this opinion Lacy described the common law concepts of future interests, such as the Further Reading: estate tail, contingent remainders and the rule 1. John Hallum, Biographical and Pictorial against perpetuities. History of Arkansas (Albany: Weed, Parson’s The most controversial of Lacy’s opinions and Company, 1887). dealt with banking issues. In particular, he 2. Dallas Tabor Herndon, Centennial History and Dickinson upheld the validity of assignof Arkansas, Vol. I (Chicago and Little Rock: ment of assets of the Real Estate Bank to S.J. Clarke Publishing Co., 1922). trustees under an arrangement drafted by Albert Pike which was, in reality, a fight for Judge J.W. Looney is a Circuit Judge, 18-W control of the bank.3 This detailed decision Judicial Circuit (Polk and Montgomery caused a stir in the legislature with discussion Counties) and Distinguished Professor, of impeachment of Lacy. This was quashed Emeritus, University of Arkansas School when Pike obtained opinions that the transfer of Law. was valid from two of the countries leading legal authorities—Chancellor James Kent of This article is provided by the Arkansas New York and Judge Joseph Story of the Supreme Court Historical Society, Inc. United States Supreme Court. Governor For more information on the Society conArchibald Yell requested the court to rehear tact Rod Miller, Arkansas Supreme Court the case but reconsideration was denied. A Historical Society, Justice Building, Email: tactful reply to the governor suggested that; Phone: 501-682the powers of the judiciary should not be 6879. usurped by the executive.4



Go online to see all of the CLE offerings at

THE NEW SPRING CLE PASS Everyone wants choices – and now the ArkBar allows you to pick and choose your in-person CLE programming for one low price. Try the Spring CLE Pass.* The Spring CLE Pass* allows you to register for up to 12 hours of CLE between January 1 – June 30, 2014 for the price of $375, with over 94 hours to choose from. Simply purchase the pass for $375 and register online or by mail for up to 12 hours of live CLE this spring. We make it easy. You select your seminars up front or throughout the spring. The choice is yours! *The Spring CLE Pass can be used by any member for any in-person event, excluding CNA, Annual Meeting, Mid-Year Meeting, Best of CLE sessions, webinars and any seminar over 12 hours. CLE Passes are used for the entire event, not individual hours. CLE Pass will be debited the number of hours of the event, not by hours of attendance. The Spring CLE Pass must be used by June 30, 2014. Credits will not be issued for the unused balance of the CLE pass. At-the-Door Registration is welcomed with the Spring CLE Pass. Pre-registration is required to guarantee a meal when lunch is served. When purchasing the CLE pass online, you must complete the purchase BEFORE selecting individual events.

Vol. 49 No. 1/Winter 2014 The Arkansas Lawyer


Judicial Discipline & Disability Commission and Attorney Disciplinary Actions Judicial Discipline & Disability Commission Actions

Attorney Disciplinary Actions

On November 15, 2013, the Arkansas Judicial Discipline and Disability Commission announced that an agreed Letter of Informal Adjustment had been issued to Judge Phillip Smith of the Third Judicial Circuit Court, Second Division in case #13-173 and #13-204. Copies of the press release can be found online at press_releases.html.

Final actions from October 1 - December 31, 2013, by the Committee on Professional Conduct. Summaries prepared by the Office of Professional Conduct (OPC). Full text documents are available on-line either at 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.] DISBARMENT PROCEEDINGS TO BE INITIATED & INTERIM SUSPENSION:

ROBERT BRENT CREWS, Bar No. If you need someone to talk to, 91237, of Jonesboro, AR, was placed on call or email us today interim suspension and Panel B directed that (501) 907-2529 disbarment proceedings be initiated by the Director 1410974 ADR Ar Lawyer Winter 2014:ADR Executive Ad 1/3/14 2:01inPMaction Pageon1 December


19, 2013, in Case Nos. CPC 2013-017 (complaint by Paula Rondell), CPC 2013108 (complaint by James Houston), CPC 2013-019 (complaint by Warren Graddy), CPC 2013-023 (complaint by Georgia McCabe), and CPC 2013-029 (complaint by Thomas Ashcraft, Jr.) KENNETH ALAN HARPER, Bar No. 89022, formerly of Monticello and now Star City, AR, in CPC No. 2013-054, was placed on interim suspension and Panel B directed that disbarment proceedings be initiated by the Executive Director in action on December 17, 2013, based on a complaint brought by Simitrio Saldivar. SUSPENSION: KENNETH ALAN HARPER, Bar No. 89022, formerly of Monticello and now Star City, AR, had his law license suspended for a period of 36 months in CPC No. 2013-32, was ordered to pay restitution of $1,680 and costs in the amount of $50, by a Findings and Order filed November 26, 2013, on a complaint by Stephanie Jones. Mr. Harper


Welcomes Pine Drewyor Pine Drewyor is certified by the Arkansas Alternative Dispute Resolution Commission as a mediator for Arkansas’ Circuit Courts. He joins our other certified mediators and arbitrators with decades of legal and judicial experience. He is a member of the Benton County, Arkansas and Oklahoma Bar Associations, Arkansas Trial Lawyers Association, Oklahoma Association for Justice and the American Association for Justice. He graduated from the University of Arkansas at Fayetteville with a B.S.B.A in International Finance and minors in Chemical Engineering and Accounting. He then attended the University of Arkansas School Of Law, graduating in 2000. Pine began his legal career in Fayetteville, handling family and criminal cases in a solo firm. A year later, he moved to Tulsa, Oklahoma and worked for the Tulsa County District Attorney's Office. He began work in private practice in 2002 with a medium-sized firm where his practice consisted primarily of insurance defense, medical malpractice defense, trucking and automobile insurance defense, banking and business litigation. Of his extensive case work, over 115 cases were resolved prior to trial via alternate dispute resolution, including mediation and arbitration. In 2007, he moved back to Northwest Arkansas and opened his own firm. He changed the main focus from the defense side of cases to the plaintiff's side. He handled cases ranging from construction and heavy machinery injuries and fatalities to business disputes to family and criminal cases. He chose to leverage his extensive insurance defense background to assist plaintiffs in their personal injury cases as the majority of his practice today. For more information about Pine and how ADR, Inc.’s experienced, professional and reasonably priced mediators can help you, or to book a mediation, call our main office in Little Rock.

Contact us at (501) 376-2121 or go to for more information. Prospect Building • 1501 N. University Avenue, Suite 630 • Little Rock, AR 72207


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Attorney Disciplinary Actions failed to act in furtherance of the interests of his client, failed to provide a response to requests for information on behalf of his client, failed to hold property of his client separate from his own, and failed to return any unearned fees after termination of representation. Mr. Harper was found to have violated AR Rules 1.3 (diligence), 1.4(a)(3) (communication), 1.15(a)(1) (safekeeping property and trust accounts), and 1.16(d) (declining or terminating representation). KENNETH ALAN HARPER, Bar No. 89022, formerly of Monticello and now Star City, AR, had his law license suspended for a period of 36 months in CPC No. 2013-033, was ordered to pay restitution in the amount of $650 and costs in the amount of $50, by a Findings and Order filed November 26, 2013, on a complaint by Jason L. Ward. Mr. Harper was unable to be located during the period of representation, failed to respond to requests for information by his client, and, despite receiving fees for representation, failed to take any action towards the representation. Mr. Harper was found to have violated AR Rules 1.1 (competence), 1.4(a)(3) (communication), and 8.4(c) (misconduct). KENNETH ALAN HARPER, Bar No. 89022, formerly of Monticello and now Star City, AR, had his law license suspended for a period of 36 months in CPC No. 2013-034, was ordered to pay restitution of $500 and costs in the amount of $50, by a Findings

and Order filed November 26, 2013, on a complaint by Christopher and Delano Agpaoa. Mr. Harper was unable to be located during the period of representation of his client, failed to respond to requests for information about the status of his client’s legal matter, and failed to return any unearned fees after termination of representation. Mr. Harper was found to have violated AR Rules 1.1 (competence), 1.4(a) (communication), and 1.16(d) (declining or terminating representation). KENNETH ALAN HARPER, Bar No. 89022, formerly of Monticello and now Star City, AR, had his law license suspended for a period of 36 months in CPC No. 2013-035, was ordered to pay restitution of $750 and costs in the amount of $50, by a Findings and Order filed November 26, 2013, on a complaint by Cody Daniel. Mr. Harper

was unable to be located during a period of representation of his client, failed to respond to requests for information about the status of his client’s legal matter, failed to keep his client informed about the status of the legal matter, and failed to return any unearned fees after termination of representation. Mr. Harper was found to have violated AR Rules 1.1 (competence), 1.3 (diligence), 1.4(a)(3) (communication), and 1.16(d) (declining or terminating representation). KENNETH ALAN HARPER, Bar No. 89022, formerly of Monticello and now Star City, AR, had his law license suspended for a period of 36 months in CPC No. 2013-036, was ordered to pay restitution in the amount of $1,500 and costs in the amount of $50, by a Findings and Order filed November 26, 2013, on a complaint by Patrick Lee Miller. Mr. Harper was unable to be located

BART F. VIRDEN NOW REPRESENTING LAWYERS 14 years on the Arkansas Supreme Court Committee on Professional Conduct

105 So. Moose Street Morrilton, Arkansas 72110 501.354.0125

Your mother told you there were places you shouldn’t go alone. listen to your mother. Vol. 49 No. 1/Winter 2014 The Arkansas Lawyer


Attorney Disciplinary Actions law license was ordered suspended for one year and he was ordered to make $42,500 restitution to the client. The Tennessee Board found Harp’s funds were deposited into Lyon’s client trust account for safekeeping, were transferred by Lyon to Lyon’s operating account, and the funds were not available when Harp requested the funds. CAUTION:

during the period of representation, failed to keep his client informed about the status of his legal matter, and failed to return any unearned fees after termination of representation. Mr. Harper was found to have violated AR Rules 1.1 (competence), 1.4(a)(3) (communication), and 1.16(d) (declining or terminating representation). JONATHAN B. HUBER, Bar No. 2008037, of Arkadelphia, AR, had his law license suspended for 12 months, was fined $2,500, and was assessed costs of $3,956.24 in CPC No. 2012-003, after a hearing, by Committee Hearing Findings & Order filed December 17, 2013, on a complaint by Circuit Judge Robert McCallum, for violations of AR Rules 8.4(b) and 8.4(c). Huber entered a plea to a misdemeanor charge of sexual solicitation in Arkadelphia district court in October 2011 (8.4(b) criminal conduct), and created and operated

a FaceBook profile using a fictitious name to make contact with women, including the woman involved in the district court case (8.4(c) - conduct involving dishonesty, fraud, deceit, or misrepresentation). Huber waived his right to appeal and accepted the suspension, which began on January 1, 2014. PHILIP K. LYON, Bar No. 67036, of Nashville, TN and Jasper, AR, had his Arkansas law license suspended for 12 months in CPC No. 2013-044 on October 8, 2013, by Committee Order Approving Reciprocal License Suspension, based on earlier action in Tennessee that was effective there on March 22, 2013. Lyon self-reported and Tennessee reported his Tennessee license suspension. In the Tennessee proceeding, Lyon was found to have violated Rules 1.15(b) and (d) (safekeeping property and funds) and 8.4(a), (b), and (c) (misconduct), involving client David Harp’s funds, Lyon’s Tennessee

JONATHAN B. HUBER, Bar No. 2008037, of Arkadelphia, AR, was cautioned in CPC No. 2013-045 by Committee Findings & Order filed December 20, 2013, on a Complaint arising from a civil appeal in No. CA 12-255, Huber Rental Properties, LLC v. Allen, (2012 Ark. App. 642) for violations of AR Rules 3.3(a) (misleading and false statements in Huber’s brief), 8.4(c) (misleading abstracting of trial testimony, omissions from the abstract, and distortions and inaccuracies in the abstract), and 8.4(d) (conduct prejudicial to the administration of justice). DENNIS R. MOLOCK, Bar No. 79211, of Stuttgart, AR, was cautioned in CPC No. 2013-059 by Consent Findings and Order filed December 13, 2013, on a Complaint arising from a criminal appeal in the case of State of Arkansas v. Demarlon Coakes, Arkansas Supreme Court Case No. CR2013-672, for failing to lodge the record with the clerk of the court within seven months of the entry of the sentencing order and for delay in the administration of appellate proceedings, violation of AR Rules 1.3 (diligence) and 8.4(d) (misconduct). ■

Robert E. Hornberger Attorney/Mediator


479-783-1776 Resume


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Certified by the Arkansas Alternative Dispute Resolution Commission

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


LEGAL BRIEFING Handling all your briefing needs Robert Tschiemer is the author of the Arkansas Bar Weekly Case Summaries, available at For a complete list of decisions see

Robert S. Tschiemer

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

Vol. 49 No. 1/Winter 2014 The Arkansas Lawyer


In Memoriam Sam Harvey Boyce, Sr. of Newport died December 13, 2013, at the age of 81. He attended the University of Arkansas in the 50s where he earned his Bachelor of Arts and Juris Doctor degrees. Between college Boyce and law school he entered the US Army in 1954 and was stationed in Germany for two years. After the military and law school he began his professional career in earnest by pursuing his interest in politics. In 1964 he was elected Prosecuting Attorney of the Third Judicial District and served for two years. In the next 45 years Boyce would build a law practice and continue his interest in politics. He was joined by his son, Henry, in his law practice in 1990. He was member of the Arkansas Bar Foundation and served on the House of Delegates, Social Security Law Committee and Legislation Committee. Eddie Christian Sr. of Fort Smith died on December 16, 2013, at the age of 72. Remembered as an outstanding trial lawyer, he practiced law in Fort Smith for over 45 years, including over 22 with Christian his son, Eddie Christian Jr. Eddie graduated from the University of Arkansas School of Law in 1967, and achieved the honor of being named a fellow with the American College of Trial Lawyers. Eddie was named as a Special Justice with the Arkansas Supreme Court in 1989. He was a member of the Arkansas Bar Association where he served on the Continuing Legal Education and Women in the Profession Committees. Searcy W. Harrell, Jr. of Camden died November 1, 2013, at the age of 72. Searcy was an avid golfer, scuba diver and private pilot and loved to travel. He was a graduate of the University of Arkansas (1962) and the University Harrell of Arkansas School of Law (1964) and was named Outstanding Alumnus of the University of Arkansas Law School in 1988. He practiced law in Prescott early in his career and for the last 42 years was in private practice in Camden, AR. He 54

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represented International Paper Company and Ouachita Electric Cooperative Corporation for over 30 years and served as attorney for the Camden Airport Commission for over 40 years. He served as Circuit Judge for the 13th Judicial District from November 2011 until December 31, 2012. He also served on the Arkansas Supreme Court Office of Professional Conduct. He was a member of the Arkansas Bar Association and a Sustaining Fellow of the Arkansas Bar Foundation. The Arkansas Bar Association will posthumously honor Searcy for celebrating 50 years of the practice of law at the June Annual Meeting. John Harris Jones of Pine Bluff died November 8, 2013, at the age of 91. Jones practiced law at Pine Bluff 1947-2006. He graduated from Arkansas State Teachers College (UCA) in 1941. He Jones graduated from George Washington University Law School in 1942, ranking first in his class. In July 1942, Jones enlisted in the Army Reserve for training as an aviation cadet. He flew as a navigator on B-26 bombers with the 397th Bomb Group including two missions on D-Day, the invasion of Normandy. He received the Air Medal with cluster and Purple Heart with cluster. He survived two crash landings upon returning to England after bomber raids and a forced landing on the beachhead in Normandy. Remaining in the Army Reserve he retired as a lieutenant colonel, army intelligence. After graduation from Yale Law School in 1947 he came to Pine Bluff to practice, first with the firm which became Bridges, Bridges, Young & Jones, later in solo practice and in partnership with Wayne Matthews, Robert Tolson, Jr., and Melvin Petty. He served two terms on the State Board of Law Examiners and was a Special Chief Justice of the Arkansas Supreme Court in 1997. He was a member of the Arkansas Bar Association.


James Stephen Holt of Little Rock died January 28, 2014, at the age of 46. Stephen was diagnosed with both ALS and Lyme disease this past July. He graduated from Arkansas State University in 1989 with a business degree. Settling

in Jonesboro, Stephen started his new career as a young banker. 

Unexpectedly, during a term of circuit court jury service, Stephenthe-banker felt the call to become Stephenthe-lawyer. He was chairman of the Moot Court Board, a semifinalist in the National Trial Team Competition, Editor of the UALR Law Review, and graduated from the UALR Bowen School of Law with honors in 1996. During law school, Stephen met fellow law student Bob Sexton and was employed by lawyers Mike Rainwater and Phillip Duncan as a student law clerk. After law school, Stephen joined the law firm of Duncan & Rainwater, P.A., where he was joined a few years later by Bob Sexton. Later, Mike and Stephen and Bob founded Rainwater, Holt & Sexton, P.A., which is now the largest plaintiff personal injury law firm in the state. He was a member of the Arkansas Bar Association where he served on the Public Sector Law Committee. Diane Stoakes Mackey of Little Rock died December 15, 2013, at the age of 76. Diane graduated first in her class from Northwestern University in 1958. After 14 years of raising children and volunteering Mackey in the community, she returned to school to follow her dream of becoming a lawyer, attended UALR Law School, and graduated first in her class in 1978. Diane served as a law clerk to U.S. District Judge G. Thomas Eisele and continued her public service as Assistant United States Attorney for the Eastern District of Arkansas from 1980 to 1983. She joined Friday, Eldredge & Clark in 1983, rose to become partner, and retired from the firm in 2006. During her tenure at the Friday firm, she also served as Adjunct Professor at UALR School of Law from 1996-2004. She founded and was Director of the dual degree JD/ MPH Program at UAMS College of Public Health and UALR School of Law. She served as Special Justice of the Arkansas Supreme Court and was a member of the American Law Institute. She was a member of the Arkansas Bar Association where she served on numerous committees including the Judicial Nominations Task Force. She was a Fellow of the Arkansas Bar Foundation. The information included in “In Memoriam” is provided by the members’ obituaries. ■

Arkansas Bar Foundation Memorials and Honorarium The Arkansas Bar Foundation acknowledges with grateful appreciation the receipt of the following memorial, honorarium and scholarship contributions received during the period October 1, 2013, through December 31, 2013: In Memory of Sam H. Boyce, Sr. Judge John B. Plegge Mike Wilson In Memory of Eddie N. Christian, Sr. Mr. and Mrs. Charles Potter Mike Wilson In Memory of Robert C. Compton Judy and Glenn Vasser In Memory of Searcy W. Harrell, Jr. Pat and John Lile Judy and Glenn Vasser In Memory of Gene Harrelson, Jr. Judy and Glenn Vasser In Memory of James E. Harris Judy and Glenn Vasser In Memory of Judge F. J. Howell, Jr. Judge John B. Plegge Mike Wilson

In Memory of Kermit Tracy Hayden and Gordon Rather In Memory of Roxanne Tomhave Wilson, Designated to the Roxanne Tomhave Wilson Scholarship Fund Judge James M. Moody In Memory of Judge Henry Woods Designated to the Judge Henry Woods Scholarship Fund Judge James M. Moody

Honorariums and Scholarship Contributions Vincent W. Foster, Jr. Scholarship Fund Judge Kristine and John Baker In Honor of Judge Robert F. Fussell Judge James M. Moody McKinley Family Scholarship Fund Jeffrey and Lester McKinley

In Memory of John Neil Killough Judge John M. Pittman In Memory of Carolyn Gray LeMaster Hayden and Gordon Rather In Memory of Diane S. Mackey Mike Wilson

The Arkansas Bar Foundation is grateful to the Craighead County Community Foundation for its contribution to the Arkansas Bar Foundation designated to assist in supporting the 2014 Arkansas Mock Trial Competition.

In Memory of William F. Magee Judy and Glenn Vasser In Memory of James H. McKenzie, Designated to the Horace H. and James H. McKenzie Scholarship Fund Judge James M. Moody In Memory of Claudine Mimms Hayden and Gordon Rather In Memory of Judge William R. Overton, Designated to the Judge William R. Overton Scholarship Fund Judge James M. Moody

Memorial Gifts Please remember the Arkansas Bar Foundation when you choose to make a memorial gift honoring a family member, a colleague or a friend of the profession. Gifts to the Foundation are tax deductible for federal income tax purposes and support the Foundation’s charitable work. Contributions may be sent directly to: Arkansas Bar Foundation 2224 Cottondale Lane Little Rock, Arkansas 72202

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