VOL.28_NO.3_SUMMER 1994

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ARKANSAS CASES'" AND WEST'S ARKANSAS CODE Cl1994 WEST PUBLISHING

The Arkansas

Lawyer

Spousal Abuse: What to Do? The recent murders of Nicole Brown Simpson and Ronald Goldman have stirred the controversy surround Ihe justice system's treatment of domestic abuse. Hence, in this poll, we are seeking to exptore Arkansas lawyers' views on the subject.

9. Have you used the Domestic Abuse Act?

1. Have you handled spousal abuse cases?

10. Do you think the Domestic Abuse Act is a good tool?

__ yes

__ yes

no

2. Were any of these male clients who were being physically abused by their female spouse? __ yes

__ yes

no

3. If you have represented an abused spouse, how long has the abuse gone on? (If you have represented more than one, check all that apply) __ Only abused once

__ Abused up to 6 mos.

__ Abused 6 mos.-l year

__ Abused 1-5 years

__ Abused 5-10 years

__ Abused over 10 years

4. What action, if any, do you take when you know your client is being abused but refuses to prosecute?

no

no

11. Are you in favor of the proposed federal legislation, Violence Against Women Act, which would: 1) Create a nationally advertised 800 number with information for battered spouses; 2) Make orders of protection issued in one state valid in all others; 3) Create federal penalties for persons who travel across state lines with intent to injure a spouse; and 4) Require judicial education programs on domestic abuse? __ yes no 12. The New York State legislature, as of June 23,1994, adopted legislation which includes mandatory arrest of violators who commit a felony assault or violate orders of protection, and requires police and prosecutors be trained to deal with domestic abuse. Should Arkansas adopt similar legislation? __ yes

no

13. Do you think the way our justice system treats domestic abuse should be changed? __ yes

5. 00 you think the police are properly trained to deal with domestic

no

abuse? __ yes

In what way(s)?

no

6. Do you think the prosecutor's office usually fails to adequately prosecute alleged spousal abuse charges? __ yes

no

7. Do you think the courts have tied the hands of the police and prosecutors to the point where there are no adequate remedies? __ yes

I

I

I

no

w.

w.

".iend .nly 5 "."....s I./h. Spring 1994 FAX P.II, chos. n.'

I. prinl Ih. re.ults. Wilh Ih. re.d.rship curronlly numb.rlng .ppro.'m./B,y

4,200, ,ren ou, usu,' respons,," of 58-75 is obviously ntli In '"UfI"

no

8. Do you think negotiating a reduction or dismissal of abuse charges to get your client a better divorce settlement is an acceptable practice? __ yes

Results of the Spring 1994 FAX POll As

"rurv.,..1 /h. re.d.rshlp .nd is n.' inl.nd.d I. repre••nl such. Th. FAX P.II •• to pro.id• • I.rm.' I.r re.d.rs I. vole. /h.'r opini....nd I. open discussion on Issu" which may III explored furth" In ,rtlel" Dr ....,.In Ih. m.guln.. lI.ny re.d.r w.uld like I. c.mm.nt .n /h. iau.. disc d h." In Ih. I.rm.'.n ....y.r .rtlel., pl......nd to Edll.r, Alt L.wyer M.guin., 4fJ(J W. M.lth.m. Lml. Roell, AR 72201.

,.1s

FAX this completed sheet to:

The Arkansas lawyer at 375-4901 or mail 10 400 W. Markham, litlle Rock, Arkansas 72201

I

Got any Good News?

By Paige Markman

My sister, Blair and I sat watching TV on the evening of Friday, June 17th when the phone rang. My mother told Blair to turn to Channel 11 and hung up quickly.

She did, and we got our first glimpse of the white Bronco traveling down an interstate with a dozen police cars following - not chasing, but seemingly just following. It was, of course, O.j.

Simpson, allegedly sitting in the back with a gun to his temple as his friend A.C. drove the car. For two hours we watched, glued to the TV, afraid to go to the kitchen for a snack or even to the bathroom. We just couldn't believe that we were watching, LNE, a police chase of one of America's favorite sports figures making some sort of getaway to escape charges that he brutally murdered his wife and her friend. After a while, it dawned on me what we, and millions of other people, were doing. We w~re waiting to watch someone blow their brains out on national TV. We didn't want him to - but if he was going to - by God we weren't going to miss it. I know this sounds horrible, but when you get down and get real honest with yourself, weren't you doing it too? And why? Why have we all developed this weird fascination with bad news?

I've thought about this a great deal. I know there have been all kinds of studies that say that people - all peoplehave an innate interest in morbidity. But how have we gotten to the point where we will forego almost anything to delve into this fascination? I keep coming back to one answer: the Media has engaged the public in bad news and sensational stories for so long that there is no longer any limit. I'm not blaming them alone though. We, as a public, have continued to buy and watch their news. The more drama, the dirtier the story, the more it will sell. Examples abound of late.

Whitewater has become a household 4 ARKANSAS LAWYER

SUMMER 1994

word for political corruption - what ever happened to rafting? With each new charge of sexual misconduct on behalf of our President, the American public has eagerly devoured the latest story on HardCopy and bought out issues of The National Enquirer. Even The New York Times has capitaUzed on the stories, and we here in Arkansas have felt the sting of the editorial freedoms taken by The Wall Street Journal. (And "Who is The Wall Street Journal?") I have watched as Jay Lena and David Letterman make fun of our President and my state, I have read along as Time Magazine and Newsweek put lunatics like David Koresh on their covers. It was with the same disgust that I watched then President George Bush throw up on international television!

So what do we do? Not watch TV? Quit buying newspapers and magazines? ot likely. I thought I had found a smaU solution when I sat down to talk with a reporter from out of state about a month ago. I told him before I agreed to meet with him that I had no knowledge about Whitewater or the Rose Law Firm or Hillary Clinton's commodities trading. He said that was fine, he was doing more of a background story on Arkansas lawyers in general. So I spent an hour answering his questions - which seemed to always drift back to one of the many "scandals" going on at the time. I went into the meeting thinking"You know, this is a real opportunity, just as the other press inquiries have been." He asked about my dealings with the press since Clinton took office and I told him, "It has been great. We've really gotten to establish ourselves as a well-prepared, reliable source of information for the media; and, we've gotten to highlight some of the really good work lawyers in Arkansas do." I didn't just say this because it is my job to make Arkansas lawyers look

good - I really believe it. I have reporters now that will call us first when they need technical information. We make sure the information is correct and complete and give it to them quickly - a practice I believe can only help the image of lawyers in Arkansas and elsewhere. I told him of the work we were doing in the state dealing with lawyer ethics and discipline, the CLE courses including ethics programs, the law schools dealing with the issue more than ever. I felt great about the interview - like I had finaUy made some little contribution to debunking the myth that all Arkansas lawyers were scoundrels with their hands in each other's pockets. As he was leaving 1 gave him my card and asked him to mail me a copy of the story.

Guess what? I never got anything. To my knowledge, there was no story. What a shocker.

So again, what do we do? I say we continue to tell the good news - push the positive story. And just as importantly let the media know when they've gone too far - that they are distorting the public's view of the justice system and directly contributing to the negative image of lawyers. Write letters, make phone calls, and if you feel strongly enough -don't buy their product. I know several lawyers who will not drink Miller Lite beer since the commercials featuring the 'lawyer rodeo' began to air.

That's a positive step. (And where is that commercial? I haven't seen it lately!)

Don't go by the old adage "If you don't have anything good to say, don't say anything at all." FIND SOMETHING positive to say. Eventually, we might win. I look forward to seeing more happy endings every once in a while on the evening news after a long day of dealing with the problems of my world don't you?

-PBM

VOLUME 28. NUMBER 3 PUBLISHER

Arkansas Bar Association EDITOR & ART DIRECTOR

Paige Markman Director ofCommunications ARKANSAS BAR ASSOCIATION 400 \X!.I\.Lukham [ntle ROl.:k. Arkansas ""2201

EDITORIAL ADVISORY BOARD Mnry L. Broadaway Thomas M. Carpenter Wendell L. Griffen Miltthew Horan Brian H. Ratcliff Robert D. Trammell Ruth Ann Wisener

OFFICERS President Robert L. Jones III President-Elect Carolyn B. Witherspoon Immediate Past President E. Lamar Pettus Secretary -Treasurer Frank B. Sewell Execu ti ve Council Chair Robert M. Cearley, Jr. Young Lawyers' Section Chair Steven W. Quattlebaum Executive Director William A. Martin Associate Executive Director Judith Gray

EXECUTIVE COUNCIL Joe Benson Mark Cambiano Charles L. Carpenter, Jr. Michael H. Crawford Robert R. Estes Wendell L. Griffen David K. Harp Dave W. Harrod Charles L. Harwell Don Hollingsworth Henry C. Kinslow Harry Truman Moore Donald P. Raney A. Glenn Vasser Teresa M. Wineland T1,e ArkJUlsaS Lawyer (USPS 546-040) is published quarterly by the Arkansas Bar Association.

Second class postage paid al Little Rock, Arkansas. POSTMASTER: send address changes to Ti,e Arkansas Lawyer, 400 West Markham, little Rock, Arkansas mOl. Subscription price to non-members of the Arkansas Bar Association $15.00 per year and to members 510.00 per year included in annual dues. Any opinion expressed herein is that of the author, and not necessarily that of the Arkansas Bar Association or The Arkallsas LAwyer. Contributions to The Arkansas Lawyer are welcome and should be scnt in two copies to EDITOR, The Arkansas Lawyer, 400 West Markham, little Rock, Arkansas 72201. All inquiries regarding advertising should be sent to T1,e Arhnsas LAwyer at the above address.

.Arkansas Lawyer In This Issue: 4 Letter from the Editor 7 Letters to the Editor 8 The Developing Law:

By Paige Markman

Ida M. Sonans and Her Solitary Ignoramus: How Standard is Your Tille?

By W Christopher Barrier

11 14 23

By Robert L. Jones III

President's Message Disciplinary Actions/ Advisory Opinions General Practitioners' Primer Post Conviction Remedies in Arkansas: What's a Lawyer to Do?

28

ROBERT L. JONES III The Interview

34

Callell & Yancey, Moscow Office: The Establishment of a Small American Law Firm in Russia

By Doug Ward

By Paige Markman

By Gregory E. Padgham

43 45 48

A Viewing of "Legally Speaking"

By Paige Markman

YOllng Lawyers' Section Column

By Steven W Quattlebaum

50

Book Reviews

51

On Its Anniversary: A Look Back at Brown

53

By William A. Martin

Executive Director's Report

II.

Board of Education

By Robert R. Wright

Special Reports: Just Solutions Conference Summit on Racial & Ethnic Bias in Criminal Justice System

58

Law, Literature & Laughter

60

Law Office Technology Column

62

By Stanley D. Rauls

In Memoriam 5 ARKANSAS LAWYER

SUMMER 1994

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Arkansas CaseBase contains AR Supreme Court Reports from 1925 to present, AR Court of Appeals Reports from 1979 to present, AR Code and Acts, AR Court Rules, AR Judicial Ethics Opinions, AR Constitution and U.S. Constitution. All on CD-ROM. All updated quarterly. And all ready for instant access on your desktop PC. So, if you're getting tired of the same old runaround, get Arkansas Case Base. And get the results you've been looking for.

For more information, on CaseBase or any of our CD-ROM prOducts, including ALR" LawDes~ USCS'路 LawDesk and CFR LawDesk, call 1-800路828-&573.

lilt lawyers Cooperative Publishing More Power for lbw'Mansa< ""'dice.

I enjoyed the article on term limits written by Jim Argue, Jr. which was published in the Spring 1994 issue of The Arkansas Lawyer. I think it is terrific when The Arkansas Lawyer addresses such timely issues. Notwithstanding this delight, I was disappointed that there was not counterpoint of the view.

Generally, an article on a controversial subject such as this would be su.re to have both sides of the issue presented. It would have been easy to find someone to write a counterpoint on the subject and this would have given you balanced treatment of the issue.

Thank you for your consideration and interest and work on this important publication.

Asa Hutchinson

Fort Smith

I tremendously enjoyed Mr. Horan's article "Shaw v. Rello" in the Spring 1994 edition. I have been a member of the Arkansas Bar since 1979 and the Louisiana Bar since 1984. Mr. Horan's article shows that both states are facing the same problem in the drawing districts.

Louisiana has two "minority-majority" congressional districts. One is centered in New Orleans and meets any fair test for determining its boundaries. The other runs along the Mississippi River from approximately the Arkansas-Louisiana border to South of Baton Rouge. It shoots West along 1-20 almost to Texas, and again shoots orthwest from Baton Rouge halfway across the state to Alexandria, and also meanders both East from Baton Rouge and West to Lafayette.

That district has been compared to a "squashed lizard."

My own upbringing makes me suspicious of any claim of "racial" discrimination. I graduated from Sylvan Hills High School in Pulaski County.

Sylvan Hills opened in 1956, a year weUremembered in Arkansas history and the history of the civil rights movement.

However, Sylvan Hills opened without fanfare with an integrated faculty and student body. It opened integrated under any criteria (race, sex, religion) save one: money. 1 grew up "separate but equal."

We were "separate" because we were from what is now euphemistically calJed "moderate'; income households, and "equal" among ourselves for the same

reason. I graduated from that Arkansas High School and went on to attend an Ivy League university, nationally known law school, and graduated with honors from all schools J attended [sound familiar?!.

I agree with Mr. Horan that the jurisprudence in the area is, at best, nonsensical. However, I disagree with his analysis as to the root cause. In my opinion, the first bad decision was Plessy v. Fergusoll in 1896, a case coming out of Louisiana. That was the first time the Supreme Court ducked the issue. I believe Plessy correctly held that the Constitution permits "separate but equal" treatment. However, the public facilities, railroad cars and waiting stations, were obviously not "equal" as the facts of that case amply demonstrated. The Supreme Court, however, failed to confront the facts shOWing the lack of any equality.

I believe we would have progressed much farther if the Court had told the State "If you want to provide 'separate' public institutions, that's fine. But, now prove they're 'equa!.' And by that we mean starting with the funding." Even the most strident follower of the KKK will soon lose his enthusiasm when he realizes that his tax dollars must be provided at least equally, if not more so, to maintain "separate" institutions for minorities. After a while, even those people catch on that the important color is the color of money and not the color of skin.

While reading Mr. Horan's article, I recalled a recent article by Mr. Clarence Page about the effects of BrowlI v. Board of Educatiofl after 40 years. Mr. Page noted that in 1954 Black Americans were called "colored people." Today, they are called "people of color." He opined "Is that progress, or what?"

Because of the refusal of the courts to confront claims of discrimination as factual issues, we continue to see opinions which either say everything about nothing or nothing about everything. Meanwhile, race remains the elephant on the table the courts and elected officials try to pretend is not there. The results are predictable.

In Louisiana we have an interesting example, well known to Louisiana attorneys. But in a State facing deficits, it is not especially funny. There are four law schools in Louisiana. Two are private. The two State-supported law schools are in Baton Rouge. Louisiana

has nearly the highest number of attorneys per capita in the U. S. and the highest number of law students per capita. One of the State-supported law schools is at a "traditionally" minority university. Its graduates have a lower passing rate on the bar examination than do students from out-of路state "common law" schools who come to Louisiana and attempt to learn Louisiana's "civilian" law and terminology. Further, a large percentage of that school's graduates who do pass the bar exam are not members of any minority. The other State-supported law school has the highest passing rate on the bar examination. Its graduates are recruited from firms throughout Louisiana and other states. But it only has about 6% "minority" students. Any proposal to combine the schools is met with cries of "racism" from supporters of the former school, and "lowering of standards" by supporters of the other. Lost in all this is any attempt to address a number of issues such as: How many attorneys does Louisiana really need?; Does it make sense to have two State-supported law schools in one city in a time of huge deficits?; and Where is the money to upgrade the education provided at the first school or provide scholarships to attract minority students at the other?

Since I doubt that there is any realistic chance that the Supreme Court will ever address discrimination claims based on their facts, I see only one possible way of avoiding the trick-bag presented by civil rights claims challenging districting decisions. The solution is cumulative voting. Applied to voting rights cases, however, it is so radical that it is endorsed by President Clinton's friend from Yale (and ill-fated nominee to head the Civil Rights Division of the U. S. Department of Justice). I suspect, however, that cumulative voting will not be considered. After all, it is a solution which might work. And it might also allow voters to elect representatives they support for whatever reason. Moreover, cumulative voting would remove the power of bureaucrats in Washington, D.C. to dictate to voters in the hinterlands, like Arkansas and Louisiana, who they should elect.

I do, however, agree with Mr. Horan's central premise. It hurts to much to cry, so we may as well laugh.

William F. Ridlon II Baton Rouge, Louisiana 7 ARKANSAS LAWYER

SUMMER 1994

standards could be developed that could be adopted by the Arkansas Bar Association, setting a standard of

If you put an experienced forensic surveyor on the stand, he is apt to back up his testimony by referring to a rather comprehensive book of "principles" which guide the work of the profession, compiled by a fellow named Brown.!

A title lawyer needs to be welJversed in the law of boundary lines, prescription, bankruptcy, probate, taxation, domestic relations, and land use, just for starters. And all he or she has to lean on are the 1962 effort by Sandlin and Cathey' and Prof. Simes' model guidelines.2 The problem may be compounded by the pervasive perception, among laymen and non-title lawyers, that this dearth of standards is no big deal.

After all, title questions generally have simple and obvious answers.

Right? Wrong, wrong, wrong. (See sidebar.)

A matter of belief...

The flip side of this perception frequently has been excessive or inconsistent caution on the part of lawyers passing on title for buyers or title companies.

This mindset is typified by the buyer's lawyer who held up a closing (although it delayed his weekly

8 ARKANSAS LAWYER

SUMMER 1994

care in this area. Then-President Lamar bowling match) by insisting on a release of dower by the wives of partners selling partnership real estate, saying: "Yes, I'm aware of that Uniform Partnership Act-but, I've just never much believed in it!"

More seriously, this sort of inconsistency and excess creates unnecessary expense for clients, and reinforces public impatience with, and distrust of, the law generally and lawyers in particular. It is especially burdensome for "landmen:' those people who sign up landowners for mineral leases-they have to make on the spot determinations as to title, with little guidance.

Two hats. One mission...

It was his experience, both as a

land man and as a lawyer, that impressed Jim O'Hem of Fort Smith with the need for uniform title examination standards in Arkansas.

After a couple of years preparing his case for presentation to the

atural

Resources Section, Jim was appointed to chair a subcommittee charged with developing standards in cooperation with the Real Estate Committee.

Bob Avery of Lake Village came on

Pettus released Association funds to assist the group with their expenses.

A draft was presented at the Annual Meeting this year, to introduce the proposal to the bar at large and to begin a year of discussions and refinements, with a goal of Association endorsement at the 1995 Annual Meeting.

Thirty years later...

The drafting group started with the 1962 law review article, the Simes treatise, and standards developed in other states, especially Oklahoma.

However, the proposed standards are not in any sense mineral-interest specific-the questions of ownership are precisely the same for land men, home-buyers and commercial lenders.

The product (which continues to evolve) consists of twenty-two exhaustive chapters, dealing with issues such as what should go in an abstractor's certificate; when to require a death certificate; and when correction deeds are and are not permissible or appropriate.

None of the proposed standards change the law or provide answers to

board for the Committee. Jim and Bob

previously unanswered questions.

gathered a core drafting group-J.H.

They merely put the questions and

Evans, Gerald DeLung, Dorsey Ryan,

those answers dictated by the best

Tom Daily-the six of them

practice in the field in the same place,

devoting many nights and weekends

including some suggestions for

to the project. Their hope has been that

curative steps.

POP QUIZI (Test Your Title IQ!) 1. Husband and wife sign a deed to a vacant lot, but the drafter forgets to include relinquishment of dower and curtesy. Is curative work required?

2. ABC Corporation conveys its headquarters to XYZ Partnership, but only ABC's executive vice president signs, with no attestation. Any special requirements or proof of authority needed?

3. John Jones, who is married to Marilyn Jones, receives title to a parcel as "John Jones, Trustee," with no other references or explanation. Six months later, he and Marilyn convey away the property with no references or explanations. Any problems?

4. Mr. Jones is a developer, who owns all of Happy Valley Subdivision, including Block 30, which has 40 lots. His deed to "Lot 13, Block 30" in favor of George Smith is recorded, although Lot 31 was intended. He signs and records a new correction deed. Does that take care of things?

5. Actually, he also needs to deal with Frank's Bank, which has an original mortgage on the entire development, followed by six annual "renewal" mortgages, none of which have been released except the last one. Should Mr. Smith insist on releases of the first five?

6. While Mr. Smith is pondering, Mr. Jones falls on hard times and deeds all his unsold lots back to Frank's Bank, which has a mortgage on them. When Frank's Bank re-sells them, must it release its mortgage?

7. Actually, Frank's Bank's original mortgage was recorded a week before Mr. Jones actually closed his purchase of the tract. Was the mortgage insurable?

8. Further, the conveyance was to "Jon Jones and Maralynn Jones, his wife," who later conveyed using the correct spellings. Any problem? (Hint: Ask Ida.) 9. Some of the lots were conveyed by Sam T. Shamm, pursuant to a power of attorney executed by the Joneses and recorded, but it failed to mention release of dower or curtesy. Did it need to?

10. Sam passes away with considerable real estate assets of his own, which he leaves to John and Marilyn, naming Mr. Smith as his executor. Mr. Smith obtains an order reciting that none of the real estate is required for the estate's debts or expenses and ordering its distribution to the Joneses. However, he forgets to actually deed it to them before closing the estate. What result?

EXTRA CREDIT QUESTIONS: 11. When (and where) can the quest for absolute certainty convert a title examiner into a solitary ignoramus?

12. When does seven years actually mean 30 years? And why?

Answers (from the proposed title examination standards, of course) in the next issue of The Arkansas Lawyer!

9

ARKANSAS LAWYER

SUMMER 1994

An ongoing process...

Further, they set forth those questions, answers and suggestions in

Contents of the Proposed Standards

a clear, sensible and accessible format.

And they are intended to be continually and regularly refined and indefinitely updated.

Ch.l - Gen. Principles & The Tille Examiner Ch. 2 - Abstracts

Lawyers who want to review the draft for possible comments are urged

Ch. 3 - Use of the Record

to do so, as a vital part of the process.

Ch. 4 - Conveyances

Copies may be obtained by sending $15.00 to jim O'Hern, P. O. Drawer

Ch. 5 - Mortgages

1903, Fort Smith, Arkansas 72902, and

Ch. 6 - Name Variances

comments should also go to jim.

Assuming final adoption

Ch. 7 - Marital Status

or endorsement of the standards next

Ch. 8 - Co-tenancy

year, they will very likely be available

in an inexpenSive booklet format, similar to the YLS's excellent 1991 handbook on the statutes of

Ch. 9 - Encumbrances Other Than Mortgages Ch. 10 - Mechanics' Liens

limitations. Again, a major purpose for the project is to make the law in

Ch.11 - Affidavits and Recitals

this area more useful and usable, by lawyers and their clients alike, for the benefit of both.

This purpose is entirely consistent

Ch. 12 - Probate Proceedings Ch. 13 - Other Judicial Proceedings

CHRIS BARRIER hns beell nil Associntioll officer, committee chair, seminar planner, speaker olld alit/lor, primarily ill the areas of real estate, banki1lg, boud law, usury, alld ellVirOllmelltal issues, which his practice emphasizes at Mitchell, Williams, Selig, Gates & Woodynrd ill Little Rock. He hns beell included i/1 tile real estate section ofeacll issue of Tile Best Lnwyers i/1 America. He recently co路afltllOred two articles ill Tire Arka"sas Lawyer all third-party legal opinions.

Extra Income 1994 Earn $200 - $500 weekly mailing 1994 Travel brochures.

For more information send a self-addressed stamped envelope to:

Travel Inc. P.O. Box 612530 Miami, Florida 33161

with the two-year charge of the Real Estate Committe<', which will seek to identify at least some of those areas in real estate law (such as tax forfeitures and adverse possession) whose current functioning (or the public perception thereof) reflects poorly on

Ch. 14 - Judgment and Execution Ch. 15 - Soldiers' and Sailors' Civil Relief Act Ch. 16 - Priority of Federal Tax Liens

the law and lawyers, and to propose solutions. [n this regard, the example set by jim O'Hern and his group clearly exemplifies lawyer problem-solving at its best.

ENDNOTES 1. 16 Arkansas L. Rev. 376-399 (1962) 2. Simes & Taylor, Model Title Standards Report (Univ. of Mich. Law School,1960).

Ch. 17 - Bankruptcy Ch. 18 - State Administrative Proceed ings Ch. 19 - Curative Acts Ch. 20 - Severed Mineral Interests Ch. 21 - Boundaries Ch. 22 - Miscellaneous

10

ARKANSAS LAWYER

SUMMER 1994

forensic tape services

PRESIDENT'S

MESSAGE

Addressing Issues for Arkansas Lawyers

By Robert l. Jones III

This being my first report, I want to thank the members of the Arkansas Bar Association for allowing me to serve as your President this year. We have been hard at work and are anticipating a great Bar year. Robert M. Cearley, Jr. of Little Rock has agreed to serve as Chair of the Executive Council.

Lucinda McDaniel of Jonesboro is our new parliamentarian. Professor Dent Gitchel has agreed to Chair our Annual Meeting which is to be held at the Arlington Hotel June 14-17, 1995. We have already lined up some outstanding speakers: Joe Jamail of Houston (he has obtained over 100 million dollar verdicts) and United States Supreme Court Justice Antonin Scalia to name two.

As [ was thinking about what to write, one of my first thoughts was about the problems facing the legal profession and our bar association.

In my opinion, our image problem has grown to proportions that make it no longer possible to ignore. It can't just be blamed on the "ad versa rial nature" of the profession. I think that what we need to do is look inward and decide what we can do to improve the image one day and one client at a time.

Why do people shop at Neiman Marcus and Dillard's? They want

good customer service.

All the studies show that clients expect a lawyer to be a professional just like a passenger on an airplane expects the pilot to be a professional. That's a given. However, you choose which airline yOll fly based on which one gives yOll good customer service.

Clients are choosing lawyers who will communicate with them and provide them good customer service. They expect all of us to be professionals.

Satisfying our client (that is, providing good customer service) will go a long way towards improving our image. Some of the things we can do are so simple. For example, clients' number one complaint against lawyers is that we do not promptly return phone calls. The following suggestions are offered: 1. Promptly return all phone caUs. 2. Listen to your client.

3. Be available to your client.

4. Meet deadlines.

5. Furnish a written fee agreement.

6. Bill periodically and promptly.

7. Keep your client advised.

8. Show that you care about your client as a person.

9. Show an interest in your client's business.

We can improve our public image with our clients one day at a time, one

In an effort to improve our image and contribute to a worthy cause, Arkansas lawyers will soon be asked to team up with Nolan Richardson and the ational Champion Arkansas Razorbacks and fight cancer. The Young Lawyers' Section, chaired by Steve Quattlebaum, has agreed to take on the 3-Point Attack on Cancer Program as their major project for the year. The program is designed to raise money for the American Cancer Society and cancer research.

Each lawyer will be asked to contribute 5~, 25~, one dollar or more for each three point shot made by the Razorbacks next season. Last year the Razorbacks made about 300 three point baskets during the regular season. Accordingly, a 5~ pledge would only cost a member $15.00; a 25~ pledge - $75.00; a one dollar pledge - $300.00. We anticipate this high profile program will produce good publicity for the lawyers of this state. Other projects to help the public and increase awareness of positive actions by lawyers are also in the development stages and will be reported on as the year progresses.

client at a time.

specialty bars, committee and section

We need more communication

and cooperation between local and

11

ARKANSAS LAWYER

SUMMER 1994

chairs and the Arkansas Bar Association. The Association should be an organization for all of our state's lawyers whether they represent a plaintiff or defendant, a small firm or large firm, and regardless of geographical location. I want to reach out to our local and specialty bars to determine what we can do for them and what they can do for us. Accordingly, we are having a meeting at the Bar Center on July 22, 1994, to address these issues. The Presidents of all local and specialty bars will be invited.

All committee and section chairs of the Arkansas Bar Association will attend. We plan to listen to these bar leaders' ideas and concerns and discuss the opportunities facing the legal profession. We hope it will be a good brainstorming session.

On another note, our Bar Center is undergoing a facelift. We will be installing new curtains, furniture and a new computer system.

We anticipate the Bar Center being more comfortable for the lawyers who use it and the staff who work there.

Also, it should be more efficient in serving the needs of the Arkansas lawyer. Please remember that any member of the Association may use the Bar Center for depositions,

meetings, or other gatherings. All you need to do is call and reserve the space you need. I encourage you to take advantage of the Bar Center.

If you have any questions or suggestions concerning the Arkansas Bar Association, feel free to give me a call or drop me a note or FAX. You should also communicate with our Bar staff: Bill Martin, Executive Director; Judith Gray, Assistant Executive Director; Deb Garrison, Continuing Legal Education Director; or Paige Markman, Director of Communications/Editor, The Arkallsas Lawyer. We want to do our best to serve the members of this Association and the citizens of the State of Arkansas.

- Robert L. Jones ill 12 ARKANSAS LAWYER

SUMMER 1994

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DISCIPLINARY ROY FINCH, JR. Roy Finch, Jr., Lillie Rock, was issued a letter of reprimanu fur a violation of Model Rule 8.4(d) as a result of a complaint filed

by Diana M. Mcintyre. Mr. Finch received the reprimand following a public hearing held on July 10, 1993.

In her affidavit of complaint and testimony, Ms. Diana McIntyre stated that in June, 1992, she received a letter from Mr. Finch accompanied by a "Motion To Abate Child Support" filed on behalf of her former husband. The letter also advised Ms. Mcintyre that Mr. Finch had learned that the Child Support Enforcement Unit (CSEU) was no longer representing her. Ms. Mcintyre averred that she telephoned CSEU and spoke with Steve Cobb, a CSEU staff allorney, who confirmed that CSEU no longer represented her.

The motion aLleged that a court order of November 7,1991, provided that Mr. Finch's client pay child support for a daughter and a son until the age of majority or until they graduated from high school if in continuous attendance. It was further alleged that the daughter had graduated from school and had reached the age of majority and that the son, Scott, would become 18 years of age on September 6, 1992, but had not graduated from high school due to his expulsion from school in the first nine weeks of the 1991-92 school year for carrying a weapon. The motion sought abatement of child support payments upon Scott's eighteenth birthday.

Ms. Mcintyre engaged private counsel who filed a Response, Request for Production and Counter-petition on June 30,1992, serving Mr. Finch with a copy of each. On July 6, 1992, Mr. Finch directed Requests for Admissions to Ms. Mcintyre and showed service on "both attorney's for plaintiff".. On July 14,1992, Mr. Finch sent a letter along with a copy of an Agreed Order entered on July 10 to Ms. McIntyre's private counsel, Mr. Kizer. The letter stated that CSEU was the plaintiff's allorney of record at that time and the Agreed Order abating child support as of September 6, 1992, was approved by CSEU attorney Cobb on behalf of the plaintiff, Ms. Mcintyre. Ms. McIntyre had no prior knowledge of the agreed order and had not assented to its entry. She conclllded that Mr. Finch, knowing of her contest of the motion by way of Mr. Kizer's response, had in some way persuaded Mr. Cobb to enter into the agreed order on her behalf. Ms. Mcintyre's private counsel filed a motion to set aside the agreed order, and that motion was heard in January 1993.

14 ARKANSAS LAWYER

SUMMER 1994

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At the hearing Mr. Finch presented two employees of CSEU as witnesses.

Adam Walloch, a CSEU administration employee, recalled a telephone inquiry from Ms. Mdntyre as to whether or not CSEU represented her. While he wasn't certain, he thought he told her that the CSEU file was closed and to re-open it required the completion of an application which he did mail to her.

Mr. Cobb testified that he did not recall ever speaking with Ms. Mcintyre, but that it was entirely possible that he did. He testified that following his receipt of a proposed agreed order supplied by Mr. Finch, he made some changes and forwarded it back to Mr. Finch for approval. Mr. Finch, in turn, sent it back to Mr. Cobb with instructions to have it filed, which he did. Mr. Cobb testified that in similar fact situations where one's entitlement, or lack of it, to child support is clear, this procedure is not unusual.

Mr. Finch testified that both attorneys seemed to represent Ms. McIntyre. Mr. Kizer had filed documents but had never entered an appearance.

The Chancery Clerk's office still showed CSEU as attorney of record. Mr. Finch offered as an exhibit the April 12, 1993, Order following the court's hearing the Motion to Set Aside the July 10, 1992, Agreed Order. All parties appeared at the hearing and all parties were represented by counsel. The Court stated that, in this case, the only way to set aside the consent judgment was for the Court to find that the judgment was obtained by fraud, which it declined to do. The Court did, however, reinstate child support to Ms. Mcintyre since her son returned to her home and was enrolled in high school finding that the intent of a previous order was for chiJd support to be paid through high school graduation.

OPINIONS

Mr. Finch appealed the tetter of reprimand to the Arkansas Supreme Court. The Court affirmed the Committee's action on April 11, 1994. Roy A. F;'JCh, Jr. v. Jim Neal, Executive Director, Arkansas Supreme Court Committee 011 Professional Conduct. 873 S.W 2d 519, 316 Ark 530 (1994).

SIMMONS S. SMITH Simmons S. Smith, Little Rock, was issued a letter of caution for violation of Model Rule 7.3(c) as a result of a complaint filed by Mr. Robert Sharp.

In his affidavit of complaint, Mr. Sharp stated that he received a solicitation letter from Mr. Smith which did not include the words" Advertising Material" on the outside of the envelope. Mr. Sharp indicates that he has no family or prior professional relationship with Mr. Smith.

In his affidavit of response, Mr. Smith stated that his office does mail letters of solicitation to prospective clients who have been involved in automobile accidents. He stated that his office attempted to comply with the Model Rules of Professional conduct and that the letter mailed to Mr. Sharp mistakenly omitted the words "Advertising MateriaL" Mr. Smith indicated that the mistake was made by an employee in direct violation of his instructions. Mr. Smith concluded by stating that the problem was an isolated event which has been corrected.

JAMES E. SMEDLEY James E. Smedley, Little Rock, was suspended from the practice of law for a period of one year for violations of Model Rules 1.2(a), 3.3(a)(1), 3.4(d) and 8.4(c) foHowing a public hearing held on March 19, 1994. This action was taken as a resuJt

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DISCIPLINARY of a complaint filed by Mr. Kenneth J. Hunt.

The allegations and testimony of Mr. Hunt involved his employment at Southwestern Bell Telephone Company (SWBT). During the period of his employment, Mr. Hunt believed that he received unfair job appraisals, and the union, Communication Workers of America (CWA), failed to adequately represent his interests in this regard. Mr. Hunt consulted Mr. Smedley, and a complaint was filed against SWBT and CWA. Subsequently, Mr. Hunt was terminated from SWBT. He decided to pursue any available remedies for the termination through the Equal Employment Opportunity Commission (EEOC) and informed Mr. Smedley of the fact, including specific instructions not to amend the complaint to add allegations of unjust termination. Mr. Hunt sent Mr. Smedley a letter documenting that fact.

However, Mr. Smedley did file an amended complaint contrary to the wishes of Mr. Hunt. As a result, the EEOC ended their investigation. Eventually, Mr. Hunt was successful in getting the EEOC claim reinstated. Some months later, Mr. Smedley filed a "Motion to Withdraw as Attorney of Record" which averred, among other things, that Mr. Smedley was unable to get Mr. Hunt to cooperate in the giving of a deposition. Mr. Hunt asserted that such a statement was false and that he never received any notice from Mr. Smedley regarding depositions. He added that, had he known of any scheduled depositions, he would have been there. Mr. Hunt stated that when he asked Mr. Smedley why that statement was in the motion, he replied that there was a legal reason to put the statement in the motion which would further his case. Mr. Smedley had previously informed opposing counsel that he could not be at the deposition because of a dental appointment. Later, the Court entered an order administratively terminating the lawsuit and stating that if the case were reopened by any party Mr. Hunt could be sanctioned for willful failure to comply with discovery. Mr. Hunt was subjected to potential sanctions as a result of Mr. Smedley's averments in the Motion To Withdraw as Attorney of Record while he maintained that he had no knowledge of attempts to depose him.

Mr. Smedley's testimony at the hearing was that, without adding the allegation of unjust termination to the complaint, Mr. Hunt would not prevail in his lawsuit. Mr. Smedley testified that the two of them discussed this issue on numerous occa ions and that Mr. Hunt had

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various responses, ranging from agreeing with his advice to amend the complaint, to firing him. Based on his belief that an amendment was in Mr. Hunt's best interest, Mr. Smedley amended the complaint.

With respect to the depositions, it was Mr. Smedley's testimony that M.r. Hunt was advised of the time and place, but refused to have his deposition taken even though he had previously been deposed twice. Mr. Smedley had no letters to Mr. Hunt in support of that testimony because, he stated, Mr. Hunt was frequently in his office which alleviated the need for written correspondence. Finally, Mr. Smedley testified that on many occasions Mr. Hunt told him that he was hiring another attorney and that made it difficult for Mr. Smedley to work on his behalf.

The Committee declined to stay Mr. Smedley's suspension pending his right of and election to appeal to the Arkansas Supreme Court. Mr. Smedley did not file notice of appeal.

James E. Smedley, Little Rock, was issued a letter of reprimand for violations of Model Rules 1.3 and 1.4(a) following a public hearing held on March 17, 1994. This action was the result of a complaint filed by Carole M.Johnson.

Ms. Johnson stated in her affidavit of complaint that she was injured in an automobile accident on March 4, 1992, and hired Mr. Smedley to represent her in April of 1992. Ms. Johnson remembers signing a contingency fee contract in which Mr. Smedley would receive one third of any monies collected; however, Ms. Johnson was not given a copy of the contract. Ms. Johnson testified that throughout 1992, she tried unsuccessfully to contact Mr. SmedJey. In March of 1993, Ms. Johnson decided to terminate his services; however, Mr. Smedley's secretary convinced her to give Mr. SmedJey one more chance. On April 5, 1993, Ms. Johnson stated that she was finally able to speak to Mr. Smedley, but he did not remember her or her case. Ms. Johnson stated that he then told her to call the next day and arrange an appointment.

An appointment was scheduJed for April 8, 1993. On that day, Ms. Johnson was informed that Mr. Smedley had left the office and was not returning for the remainder of the day. Ms. Johnson then terminated his services and picked up her file on April 16, 1993.

Mr. Smedley testified that Ms. Johnson had previously hired him on another matter. He stated that he did have discussions with Ms. Johnson and informed

OPINIONS

her that there was a problem with liability in her case.

WOODSON D, WALKER Woodson D. Walker of Little Rock was issued a letter of caution following a public hearing held on March 19, 1994 for violation of Model Rule 5.5(b). This action was a result of a complaint filed by Angelia Pickens.

Mrs. Pickens's affidavit of complaint and testimony indicated that she was injured in an automobile accident. Upon receiving treatment, the claims clerk in the doctor's office referred her to Mr. Marvin Delph, who was represented to be an attorney. Mrs. Pickens stated that she called Mr. Delph, and he came to her home and obtained information about the wreck. Mr. Delph had Mrs. Pickens sign a contingency fee contract on a standard form used by Walker, Roaf, Campbell, Ivory and Dunklin, Attorneys at Law. Mr. Delph began negotiating with USAA, the insurance carrier, and Mr. Delph obtained a settlement on the damaged car. Mrs. Pickens stated she began receiving harassing phone calls from the medical providers. Mr. Delph sent letters to the medical providers guaranteeing payment.

In that regard, there was an agreement, signed by Mr. Delph as attorney at law, guaranteeing payment to Service Finance Corporation upon settlement. Mrs. Pickens indicated that she was unaware of any correspondence between Mr. Walker and Service Finance Company correcting the mistaken impression concerning Mr. Delph.

Ms. Pickens became somewhat dissatisfied with Mr. Delph's services and decided to check with other firms. Mr. Delph informed her that he would not release her case based on the contract she had signed. Mr. Delph continued settlement negotiations and finally recommended a structured settlement. Mrs. Pickens did not like the proposal and wanted to go to trial. Mr. Delph then advised that he had done an asset check on the defendant and that there were no assets to be obtained. Mr. Delph again recommended the structured settlement. Mr. Delph's initials appear on the settlement form as the person settling the claim. The insurance draft was made payable to Mr. Pickens, John Pickens, her husband, and attorney Marvin Delph. Mr. Pickens never signed the draft, and Mrs. Pickens alleged that she did not give authorization to anyone to endorse her husband's name. Mrs. Pickens received her 15

ARKANSAS LAWYER

SUMMER 1994

DISCIPLINARY portion of the settlement and later learned that Mr. Delph endorsed her husband's name. Upon learning that the structured settlement did not cover all of her medical bills, Mr. Pickens contracted Mr. Walker's law firm and scheduled a meeting with Mr. Walker. At the meeting Mr. Walker informed Mrs. Pickens that she had chosen that settlement and that nothing more could be done. Mrs. Pickens alleged that she did not learn that Mr. Delph was not an attorney until she filed her complaint with this Committee.

Mr. Walker's affidavit of response and testimony indicated that no one in his firm represented his clients or provided legal advice to them but himself or another

licensed attorney. Paraprofessionals such as Mr. Delph, work under Mr. Walker's supervision. Mr. Delph was a Claims Assistant and his exclusive responsibility was to assist on personal injury cases. Mr. Walker stated that he supervised the handling of all cases at all stages and conducted weekly staff meeting to discuss the progress of cases, and that no claim was settled without his review and approval. Mr. Walker testified that he did

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review Mrs. Pickens' settlement and initialed the settlement statement. He indicated the he maintained direct, regular contact with his clients and he specifically recalled several occasions when he spoke with Mr. Delph concerning Mrs. Pickens' case. Mr. Walker, in his professional opinion, thought the amount offered Mrs. Pickens was fair and consistent with settlements customarily secured in Pulaski County.

Mr. Delph's affidavit and testimony indicated that the claims clerk in the doctor's office contacted him concerning Mrs. Pickens. Mr. Delph then went to the doctor's office and spoke with Mrs. Pickens and informed her that he was a claims representative. Mr. Delph stated that he explicitly told Mrs. Pickens that he was not an attorney and that Mr. Walker would be her attorney. Mr. Delph explained the firm's fee arrangement with Mrs. Pickens and had her sign the contract for legal services, which at that time was unexecuted by Mr. Walker. Mr. Delph indicated that at no time did he represent himself as an attorney to the medical providers or to the insurance company.

OPINIONS

Mr. Delph indicated that he signed the form agreement with the collection agency as a routine task, compatible ,""ith other routine tasks done to assist the supervising attorney. Mr. Delph testified that Mrs. Pickens authorized him to endorse her husband's name to the settlement check and that the mistaken notation that he was an attorney on the settlement check was not corrected because Mrs. Pickens was in a hurry to receive her portion of the settlement proceeds.

ROBERT A.

EWCOMB

Mr. Robert A. ewcomb, Little Rock, was issued a letter of caution for violation of Model Rules 1.1 and 1.3 as a result of a complaint filed by Ms. Sharon R. Griggs.

Ms. Griggs stated in her affidavit of complaint that she hired Mr. Newcomb in April of 1991 to file a lawsuit against her former employer. A complaint was filed on November 12, 1991, and an answer was subsequently filed. Interrogatories were filed and depositions taken. The defendants filed a Motion For Summary

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SUMMER 1994

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Judgment on June 2, 1992. Mr. Newcomb did not file a response or a request for an extension within the twenty day time limit.

On June 29, 1992, by letter to the court, Mr. ewcomb requested until July 13, 1992, to respond. The defendants asked the court to deny his request as untimely. Without a ruling on the request, Mr. ewcomb filed a response on July 30, 1992. The defendants then filed a motion to strike. On August 13, 1992, the Motion For Summary Judgment was granted without a hearing. On ovember 3, 1992, Mr. Newcomb filed a Motion to Modify requesting the Order be set a ide and the matter set for hearing. On December 10, 1992, the court entered an Amended Order to clarify the basis for its decision. The court indicated that even considering all the evidence, summary judgment for the defendant was warranted. Mr. Newcomb then appealed that decision to the Arkansas Supreme Court. The appeal was dismissed on November 8, 1993, the court finding that the appeal from the summary judgment was not timely.

In his affidavit of response, Me. Newcomb admitted that he did not file a response to the Motion For Summary Judgment, nor did he request an extension within the twenty day limit. Mr. ewcomb admitted that he did not handle this case in a diligent manner and that by overlooking certain Rules of Civil Procedure, he violated Rule 1.1. Mr. ewcomb apologized and indicated that he had taken steps to correct his office practice so this will not reoccur.

ROBERT B. LESLIE Robert B. Leslie, Little Rock, was issued a letter of caution for violation of Model Rule 1.3 as a result of a complaint filed by Linda Fae Spencer.

Ms. Spencer stated in her affidavit of complaint that she was injured in an automobile accident on April 5, 1986, in which she sustained injuries and medical bills of approximately $10,000.00. Ms. Spencer hired Mr. Leslie in October of 1987, to begin settlement negotiations. In correspondence from the insurance adjuster which erroneously Listed the date of the accident as April 1], Mr. Leslie inadvertently picked up and started using the wrong date of the accident. On April 7, 1989, the adjuster denied Ms. Spencer's claim based on the expiration of the statute of limitations. Mr. Leslie filed the

complaint on April 10, 1989, with an amendment to the complaint filed on April 11, 1989, anticipating the statute of limitations defense. When Ms. Spencer became aware of the problem, she contacted attorney R.L. Wommack to pursue the matter against Mr. Leslie. In the meantime, the defendant filed a Motion to Dismiss based on the statute of limitations.

At a hearing on the motion, the complaint was allowed to stand. Ms. Spencer then terminated Mr. Leslie and hired Mr. Wommack to pursue the case. Mr. Wommack turned the case over to Kenneth L. Edwards. Mr. Edwards negotiated with the defense that Ms. Spencer would take a $25,000.00 judgment and that the defendant would be allowed to appeal; however, this was never done and the case languished. On May 13, 1991, Mr. Edwards was notified that the case was subject to dismissal for failure to prosecute unless cause was shown within 30 days. The case was dismissed on August 20, 1990. Mr. Edwards left the practice of law in November, and Mr. Wommac.k took over the case. The case subsequently was dismissed on appeal on other grounds and without decision in regard to the statute of limitations issue.

Mr. Leslie responded that he felt the insurance company intentionally misled him and, in effect, committed fraud. He indicated that if the complaint had been dismissed, and that ruling stood after appeal. Mr. Leslie would feel responsible and would make reasonable restitution. He pointed out that the complaint was allowed to stand and that another issue, totally unrelated to Mr. Leslie or any of his actions, intervened and resulted in Ms. Spencer's loss of her cause of action. Mr. Leslie maintained that since negotiations had been ongoing and encouraging. he did not believe it was unreasonable to wait until four days before the deadline to start filing proced ures.

RICHARD L. WOMMACK Richard L. Wommack, Fayetteville, was issued a letter of reprimand for violation of Model Rules 1.1, 1.3 and 8.4(d) as a result of a complaint filed by Linda Fae Spencer Ms. Spencer stated in her affidavit of complaint that she was injured in an automobile accident on April 5, 1986, in which she sustained injuries and medical bills of approximately $10,000.00. Ms.

Spencer hired attorney Bob Leslie in October of 1987, who began settlement negotiations. In correspondence with the insurance adjuster, Mr. Leslie inadvertently pic.ked up the wrong date of the accident. On April 7, 1989, the adjuster denied Ms. Spencer's claim based on the expiration of the statute of limitations. Mr. Leslie filed the complaint on April 10, 1989, with an amendment to the complaint filed on April 11, 1989, anticipating the statute of limitations defense. When Ms. Spencer became aware of the problem, she contacted Mr. Wommack to pursue the matter against Mr. Leslie. In the meantime, the defendant filed a Motion To Dismiss based on the statute of limitations. At a hearing on the motion, the complaint was allowed to stand. Ms. Spencer then terminated Mr. Leslie and hired Mr. Wommack to pursue the case. Mr. Wommack turned the case over to Kenneth L. Edwards, an associate in his law firm. Mr. Edwards negotiated with the defense so that Ms. Spencer would take a $25,000.00 judgment and that the defendant would be allowed to appeal; however, this was never done and the case languished. On May 13, 1991, Mr. Edwards was notified that the case was subject to dismissal for failure to prosecute unless cause was shown within 30 days.

The case was dismissed on August 20, 1990. Ms. Spencer was under the impression that Mr. Edwards left the practice of law around November, and Mr. Wommack took over the case.

On January 16, 1992, Mr. Wommack filed a motion to reopen the case which was granted and judgment was entered in Ms. Spencer's favor. The defendant then appealed. The Court of Appeals reversed and dismissed holding that the trial court was without authority to reopen the case more that 90 days after the dismissal for want of prosecution. Mr. Wommack then notified Ms. Spencer of the court's decision; however, the letter indicated that the court's decision was based on the statute of limitations problem.

Mr. Wommack responded that he was hired in the spring of 1989 to research Ms. Spencer's statute of limitations problem. His research indicated that the statute had run in Ms. Spencer's case. Mr. Wommack indicated that he personally told Ms. Spencer that his firm did not sue lawyers for malpractice, but that he would try to help her work something out. Mr. Wommack stated that Ms. Spencer's file was turned over to his associate, Me. Ken 17

ARKANSAS LAWYER

SUMMER 1994

DISCIPLINARY Edwards, who negotiated an arrangement

with the insurance company to consent to a $25,000.00 judgment to be appealed. On May 13, 1991, Mr. Edwards was notified of the impending dismissal for want of

prosecution. On August 20, 1991, the case was dismissed. Mr. Edwards left the practice of law in October of 199], and Mr. Wommack took over the case. Upon

learning of the dismissal, Mr. Wommack notified the court and, with the consent of opposing counsel, the case was reopened.

The order reopening the case was appealed on the grounds of the three year statute of limitations and Rule 60 ARCP.

Appeal briefs were submitted and, as they were being considered, the court decided

Wnre v. cnmer. 309 Ark. 148, 827 S.W. 2d 657 (1992) wherein it held that a trial court lacks jurisdiction to vacate an order dismissing an action for failure to prosecute more that 90 days after the order of dismissal is entered. Relying on the Ware case, the Court of Appeals reversed and dismissed. Mr. Wommack stated that the letter to Ms. Spencer was drafted while he was involved in a very complicated trial and he obviously read the decision too rapidly and misreported to Ms. Spencer what the decision held. Mr. Wommack pointed out that a copy of the decision was enclosed and there was no fraud intended.

ROBERT 1. SCULL III Robert L. Scull, III, Little Rock, was issued a letter of caution for violation of Model Rules 1.3, 1.4(a), 1.5(a) and 1.16(d) as a result of a complaint filed by Calray Smith.

In August of 1985, Mr. Calray Smith purchased a 1985 Volvo from Jones Toyota Volvo. The car had a thirty-six (36) month warranty. The car had every problem imaginable, and Mr. Smith repeatedly took it to Jones for service. After two (2) years, jones terminated the warranty. Upset that the warranty was terminated, Mr. Smith went to the law office of Darrell Brown and Associates and spoke with Mr. Scull about his problems. Mr. Smith avers that he paid Mr. Scull $100.00 in return for which he was to write jones a letter. A couple of months later, Mr. Smith paid Mr. Scull another $100.00 to write another letter since the problem was not resolved.

Mr. Scull was successful in getting the 18 ARKANSAS LAWYER

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warranty reinstated. However, two (2) months later, jones had still not corrected Mr. Smith's problems, so he returned to Mr. Scull in May of 1988. Mr. Scull advised that he would file suit for a $1,500.00 fee.

When Mr. Smith returned to Mr. Scull's office, he was told to give jones another week and then he would file suit. Later, Mr. Scull left the office of Darrell Brown and opened his own law office and after that, Mr. Smith states that he saw Mr. Scull only once in approximately August, 1990.

Mr. Smith asserts that, at that time, Mr. Scull advised that there was still time to file a lawsuit, but that when he left Brown and Associates, Mr. Smith's file could not be found. Since that time, Me. Smith states that he was unable to contact Mr. Scull.

For his response, Mr. Scull agreed that letters were written to jones Toyota Volvo and added that phone calls were also made. Mr. Scull felt that out of court negotiations would resolve the matter, and he contacted Mr. Smith occasionally to monitor the progress of his situation. Me. Scull stated that when he left Brown and Associates he left all documents pertaining to Mr. Smith in that office. Approximately four (4) months later and after opening his own firm, Mr. Smith came to his office and paid Mr. Scull $1,500.00 to represent him in connection with the warranty. Mr. Scull averred that litigation was mentioned only as a last resort. He began negotiations and ultimately believed that the matter was corrected. Mr. Scull stated that he next heard from Mr. Smith by way of the Professional Conduct Committee.

THOMAS J. HIVELY Thomas j. Hively, Batesville, was issued a letter of caution for violation of Model Rules 1.3, 1.4(a) and 8.4(d) as a result of a complaint filed by Rayburne Adams.

In his affidavit of complaint, Mr. Adams stated that he hired Mr. Hively to represent him in a divorce in March of 1988. On March 22, 1988, Interrogatories were propounded to his client, but Mr. Adams alleged that Mr. Hively never informed him that the lnterrogatories had been filed. On August 24, 1988, a Motion To Compel was filed and on September 8, 1988, an Order to compel was entered.

Again, Mr. Adams alleged that Mr. Hively

OPINIONS

did not inform him of the Motion or Order.

Subsequently, Mr. Hively agreed with opposing counsel to have the Interrogatories answered by November 28, 1988. On January 4, ]989, Requests For Admissions were filed. Again, Mr. Adams alleged he was not informed. On March 2, 1989, with no Responses to the Interrogatories or Requests For Admissions, a Motion For Sanctions And Finding Of Fact was filed. Mr. Adams stated that it was only at this time that he was made aware of the situation. On April 3, 1989, Answers were filed to the Interrogatories and Requests For Admissions. Mr. Adams was then assessed $150.00 attorney's fees as a sanction for faiJure to file timely responses.

Mr. Hively responded that when Mr. Adams first came to his office, he discussed his assets and circumstances surrounding those assets. Specifically discussed was Mr. Adam's pension plan.

During the initial discussion, it was discovered that there was no objection to the basis for the grounds for divorce and that all of the personal property had been divided several years earlier. Concerning the pension, Mr. Hively stated that Mr. Adams took a hard and fast line that the

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DISCIPLINARY

f

I.

pension was something that he had worked for. Mr. Hively indicated that he advised Mr. Adams that pensions accrued during the time the husband and wife were married were to be shared equally.

Mr. Hively pointed out that Mr. Adams was so adamant about the fact of his wife not receiving any of his benefits that he would not even apply for his benefits although eligible since 1984. Mr. Hively stated there was no question that the Interrogatories and various motions and orders were served on him; however, he strongly denied that Mr. Adams was not advised of the pleadings being filed. Mr. Hively stated that Mr. Adams was informed numerous times that the

discovery documents had been filed and needed to be answered. Mr. Hively responded that Mr. Adams would not agree to release or give any information whatsoever concerning his pension plan.

Mr. Hively stated that he advised Mr. Adams that if he did not voluntarily release the information, that the judge would issue an order compelling a reply at some point and that there would be sanctions issued against him for failure to comply. On March 2. 1989, when the Motion For Sanctions was filed, Mr. Hively advised Mr. Adams that if he did not comply, that Mr. Hively would withdraw as his attorney. Mr. Adams reluctantly agreed to comply and answer.

JA ET L. THOR TON Janet L. Thornton, EI Dorado, was issued a letter of caution for violation of Model Rules 1.3 and 8.4(d) as a result of a Per Curiam opinion granting a Motion for Rule on the Clerk issued by the Arkansas Supreme Court.

Ms. Thornton responded that she is a sole practitioner with a contract with the Union County Quorum Court to provide all criminal indigent defense. The municipal and juvenile courts criminal indigent defense work is contracted to another attorney. Ms. Thornton stated that the failure to timely lodge the record was due to an oversight on her part. The record was due to be filed by October 31, 1993.

The first attempt to file the transcript was on December 7, 1993.

ACTIONS

/

ADVISORY

MICHAEL DENNIS BOOKER Michael D. Booker. Little Rock, was issued a letter of reprimand for violation of Model Rules 3.4(c) and 8.4(d) as a result of a complaint filed by Chief Justice Jack Holt, Jr. Following receipt of a letter signed

by Chief Justice Jack Holt, Jr. and pursuant to the Rules of the Court Regulating Professional Conduct of Attorneys at Law, Section 5(A). it was learned that Mr. Booker, on various dates, checked out three transcripts from the Records Supervisor for the Office of the Clerk of the Supreme Court. The first was checked out on September 3, 1992; the second on March 18,1993; and the third on May 3, 1993.

Beginning ovember 2, 1993, notices were sent to Mr. Booker reminding him that transcripts may be checked out to attorneys for not more than thirty (30) days and requested return of the transcripts within seven (7) days. Finally, on October 26, 1993, a demand notice was sent. As a result of Mr. Booker's failure to respond a per curiam opinion was delivered on ovember 19. 1993, commanding return of the transcripts forthwith lest a show cause order issue.

Subsequently, the transcripts were returned alleviating the need for a show cause order.

JOH

L. KEARNEY

John L. Kearney, Pine Bluff, was issued a letter of caution for violation of Model Rules 1.3 and 8.4(d) following a public hearing on May 11, 1994. The complaint was a result of a per curiam opinion granting an amended Motion For Rule On The Clerk.

On July 28, 1993. a Motion To File Belated Appeal in a criminal case was filed

by Mr. Kearney on the appellant's behalf.

It was averred in the motion that the failure to timely file the transcript was due to a misunderstanding between Mr. Kearney and the appellant. However, the motion was denied on September 20, 1993, for failure to state good cause for granting the motion. Subsequently, an Amended Motion For Ru Ie On The Clerk was filed which more specifically set out the cause for the belated transcript and admitted error on Mr. Kearney's part. The amended motion was granted on October 18, 1993 Mr. Kearney testified at the hearing that he did receive the Committee's

OPINIONS

complaint, but did not submit a response because he thought that the information and grounds set out in the Motion and Amended Motion For Rule On The Clerk would suffice as a response. Mr. Kearney apologized for failing to submit an affidavit of response directly to the Committee. His testimony and exhibits further reflected that. subsequent to filing the otice Of Appeal, Mr. Kearney notified the appellant that only about thirty days remained in which to lodge the transcript. The appellant was also advised that arrangements should be made with the court reporter if the appellant intended for Mr. Kearney to continue the appeal.

Mr. Kearney stated that, unbeknownst to him, appellant had previously paid the transcript costs directly to the reporter and preparation had begun. Apparently, by the time Mr. Kearney learned of the completion of the transcript the time for filing the record with the Supreme Court Clerk had already expired.

CHRISTOPHER C. MERCER, JR. Christopher C. Mercer, Jr., Little Rock, following a public hearing on May 11, 1994, was issued a letter of reprimand for violation of Model Rules 1.3 and 84.(d) as a result of a complaint filed by Roosevelt Watson.

In his affidavit, Mr. Watson stated that he hired Mr. Mercer to represent him to appeal a criminal conviction. The alice Of Appeal And Designation Of Record was filed and a brief schedule set. Mr. Watson's brief was due on April 13, 1992, but Mr. Mercer failed to file the brief. On April 17, however, Mr. Mercer requested and was granted an extension until June 4, 1992. No brief was filed, and on September 11,1992, a Motion to Dismiss was granted.

Mr. Watson stated that Mr. Mercer never advised him of the dismissal and that he made this discovery through the newspaper where he saw his picture in a section featuring individuals with outstanding warrants. Mr. Watson hired another attorney who had the appeal reinstated.

Mr. Mercer's response and testimony before the Committee included the amount of time and effort he expended on this case. He stated that he ordered the transcript, did extensive research and prepared a brief, but missed the filing 19

ARKANSAS LAWYER

SUMMER 1994

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DISCIPLINARY deadline due to Mr. Mercer's campaign for Circuit Judge. Additionally, when Mr. Watson came to his office to make weekly payments he generally wanted to discuss his case with Mr. Mercer taking anywhere from thirty minutes to one hour in this regard. Having failed to file the brief, the appeal was dismissed. Mr. Mercer averred, contrary to the statement of Mr. Watson, that he did advise rum of the dismissal.

Mr. Mercer testified at the hearing of the steps taken by him to avoid future mishaps including the hiring of an experienced secretary who is also a trained paralegal; the addition of a full time associate; and his commitment to not accepting more cases than the office can adequately handle.

Finally, Mr. Mercer presented a number of letters from local attorneys on his behalf.

GARY E. JOHNSON Upon recommendation of the Supreme Court Committee on Professional Conduct, on March 7, 1994, the Arkansas Supreme Court accepted the surrender of the license of Cary E. Johnson of Pulaski County, Arkansas, to practice law in the State of Arkansas.

MEREDITH WI ELA D Meredith Wineland, Benton, was issued a letter of reprimand for violation of Model Rule 1.4(a) as a result of a complaint filed by Bobby W. Outlaw.

Mr. Outlaw stated in his affidavit of complaint that he began negotiating with his workers' compensation insurance carrier, Crum and Forster, concerning an on-the-job injury which he sustained in September of 1991. Mr. Outlaw received an offer of settlement of $26,713.28 in June of 1993. Mr. Outlaw stated that he hired Ms. Wineland to possibly obtain a larger settlement. Mr. Outlaw indicated that despite numerous attempts to contact Ms. Wineland between July and September, he

ACTIONS

/

ADVISORY

was unable to speak with her. Contact with the insurance company revealed that Ms. Wineland had not contacted them. In early October of 1993 Ms. Wineland informed Mr. Outlaw of an offer of $23,589.74 plus attorney's fees, an amount $3,286.76 less than the original amount offered. Mr. Outlaw requested that Ms. Wineland continue to negotiate. Mr. Outlaw alleged that his letters to Ms. Wineland requesting an update went unanswered. The insurance company indicated that their messages to her were unanswered also.

Mr. Outlaw then terminated Ms. Wineland's representation.

Ms. Wineland responded that Mr. Outlaw initially contacted her in December of 1991, and she sent him a medical authorization form which was never returned. Ms. Wineland stated that Mr. Outlaw requested advice from her over a two year period, all of the advice taking place over the phone with no request for compensation. Ms. Wineland ind.icated this was done in anticipation that she would receive the case when and if Mr. Outlaw hired an attorney. On June 19, 1993, Ms. Wineland was officially hired by Mr. Outlaw for the workers' compensation case. She stated that she was unaware that Mr. Outlaw had been offered $26,713.28.

Ms. Wineland ind.icated that the insurance contact person was difficult to deal with and was difficult to contact. She stated that when she was finally able to contact the insurance company, she was informed that it was Mr. Outlaw who was difficult to deal with. Ms. Wineland indicated that she did not consider four months to be unreasonable.

JOH I. PURTLE In the Autumn 1993 issue of Tile Arkansas Lawyer, there was a listing the John I. Purtle was issued a letter of reprimand. Mr. Purtle appealed that case and the Supreme Court recently reversed the Committee on Professional Conduct's action and dismissed the case against Mr. Purtle.

OPINIONS

Arkansas Bar Association Ethics Advisory Opinion The following is a summary of an advisory opinion given by the Professional Ethics & Grievances Committee of the Arkansas Bar Association. If you would like a complete copy of the opinion, please contact the Association office at 375-4605 or (BOO) 482-

9406.

Advisory Opinion 94-01 (Arkansas Bar Association, April 14, 1994): Attorney Contact with Represented Adverse Party.

The Professional Ethics & Grievances Committee of the Arkansas Bar Association issued an advisory opinion discussing direct attorney contact with an adverse party who is an attorney and who is represented by an attorney. Under Rule 4.2 of the Arkansas Rules of Professional Conduct such communication about the subject of the representation is improper unless the lawyer has the consent of the other lawyer.

Under federal bankruptcy law, the United States Trustee appoints practicing attorneys as trustees. Those trustees frequently hire attorneys to represent the trustee and those attorneys may commence proceedings against an adverse party.

Although the trustees are lawyers, they have elected to employ counsel.

Accordingly, the trustee becomes the client and is entitled to the protection of retained counsel. The attorney for the adverse party should not communicate directly with the trustee and the trustee should not initiate direct communications with the attorney for the adverse party.

Rule 4.2 does not prohibit direct communications between adverse parties.

U the trustee wishes direct contact with the adverse party's attorney, the trustee, when retaining the trustee's attorney, may notify hat attorney the trustee retains the power to communicate directly with the adverse party's attorney. In such situations the adverse party's attorney should obtain written consent from the trustee's attorney before communicating directly with the trustee.

21

ARKANSAS LAWYER

SUMMER 1994

Ted Boswell NAMED OUTSTANDING LAWYER OF 1994

BY THE ARKANSAS BAR ASSOCIATION AND THE ARKANSAS BAR FOUNDATION

•

•

ON AN HONOR WELL DESERVED

~ affo/atv d Boswell, Tucker & Brewster

Attorneys:

Support Staff:

W. Lee Tucker Clark S. Brewster D. Derrell Davis Roben A. Ginnaven III Dennis J. Davis John T. Holleman Yolanda Dreher David E. Dawson

Donna Holloway, CPU. Manha Cox. CPU Kathy Crank Sandra Jenkins Jeannie Ottens Lee K. Tompkins Julie 0 Holloway

Mm;,.,SlffJIQr

Jamie Curry

Waylon Sheffield

Bryolll Celller, Post Office Box 798, Br)'olll, Arkonsos 72089-0798 Telephone - little Rock ond Bryont (501) 847-3031

Benton: (501) 77&-2573

Fax: (501) 847-4354

Tire followillg fictiollal aceOllllt illtroduces issues which commonly arise ;n criminal post conviction proceedings ill ArkallSl1s. The

summary which follolUs is offered as a practical guide for ntforlleys,

others.

iI/mates,

and

Post (onVicfion R~DI~di~s in Arliansas: What's a lawy~r to Do?

Despite my limited experience, I felt obliged to accept the criminal appointment when Judge Lawson called. After all, Lawson described it as a simple robbery case, and the other local lawyers seemed to shoulder mOTe than their share of the criminal appointments. I took the case, visiting the county jail to meet my client, Randal Ross. En route to Randa1's cell, the sheriff informed me that the charge was actually aggravated robbery, not robbery, and Randal's first question was how his three prior convictions, one of which he received while a teenager in Oklahoma, would affect this charge. I was impressed by Randal's command of the issues, and he was not impressed with my steady note taking coupled with a promise to "check into that and get back to you."

I was prepared by the time trial arrived, though the filing of the amended information only hours before trial caught me off guard. The penalties were significantly stiffer after Randal was charged as an habitual offender. Still, Randal declined the prosecutor's offer of a thirty-year sentence for a guilty plea, relying on the alibi defense at trial. The jury did not buy the alibi, either because Randal didn't testify to avoid the

prior convictions coming to light or because Randal's girlfriend and aunt weren't convincing in placing him at the roller rink at the critical time. The prior convictions no doubt influenced the jury to impose the (arty-year sentence.

On appeal, the Arkansas Supreme Court found no error with Judge Lawson's denial o( my motion for continuance due to the eleventh-hour amendment of the information. Also, the Court found the evidence more than sufficient to support Randal's conviction. Exactly one month after the decision by the Arkansas Supreme Court, Randal's letter, with a return address to the Arkansas Department of Correction and a scribbled "LEGAL MAIL" on the envelope, arrived: Dear Attorney Ward, Please help! The writ writer in my barracks and two guys at my work site are telling me I need to do some legal work. The writ writer offered to help. The thing is, they keep telling me different

By Doug Ward

law (Ierlt 10 U.S.

~adislrale

things to do. Do I need to file my legal work in federal or state court? I'm told that I need to get habeas corpus, but I also hear about corum nobis, Rule 37, and declaratory judgment.

When, where, and what do I need to do??? Please write soon. - Randal Ross ADC #93179 Research on behalf of Randal resuJted in a letter addressing his specific problems. For my files, I produced the following genera) summary of Arkansas post conviction remedies.

I. RESULTS OF CHOOSI G THE WRONG ARKANSAS POST CONVICTIO REMEDY It is critical to pursue the proper post conviction remedy in Arkansas for two reasons. The obvious reason is that relief is not available if the inmate is in the wrong forum or raises inappropriate grounds for relief.

The second reason is that failure to pursue the ground in the proper state forum may later bar the inmate from presenting the ground in a federaJ habeas corpus action.

Federal habeas corpus relief may not be pursued until all state court avenues of relief have been exhausted. 28 U.s.c. ยง 2254(b).

A claim for relief in federal court which was not raised in state court will be greeted with one of two responses by the attorney general, who represents the director of the Arkansas Department of Correction (" ADC") in habeas corpus actions.

If there is still time in which

Judde n. DaVid found

23 ARKANSAS LAWYER

SUMMER 1994

to raise the ground in a state forum, the attorney general will seek dismissal of the federal action to allow the inmate to exhaust his available state court remedy.

Since the window for filing post conviction petitions tends to be brief, the more common experience is that the state court remedy is no longer available to the inmate when he advances grounds in attorney general will seek dismissal based upon procedural default, or the requirement that federal claims for relief be thoroughly litigated in state court before being advanced in federal court. Wainwright v. Sykes, 433 U.s. 72 (1977). The procedural default hurdle may be cleared if the inmate explains why he failed to present the grounds in state court and how he was prejudiced from the failure to raise the grounds. fd. This is often referred to as the "cause-andprejudice-test."

There is no comprehensive list of what will amount to an adequate excuse for failing to assert the grounds in state court. Smitl, v. Murray, 477 U.s. S27 (1986).

However, circumstances which satisfy the "cause" prong include ineffective assistance of counsel at trial or on direct appeal.! Also, the failure to raise the ground in state court is excusable if there was an objective factor external to

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24 ARKANSAS LAWYER

SUMMER 1994

the defense which prevented the inmate from complying with the state court procedures for raising post conviction claims. Id. An example of such an external factor is a ground raised in federal court which was so novel that it was not reasonably available at the time it could have otherwise been pursued in state court. Reed v. Ross, 468 U.s. 1 (1984).

Also, the recantation of a key prosecution witness's testimony was deemed an objective factor which excused the inmate's failure to pursue timely state court relief. CoTtrell v. Nix, 953 F.2d 1103 (8th Gr. 1992). It is not sufficient to simply be unaware of available grounds in state court, even if an inmate was without counsel in post conviction proceedings. A pro se inmate's lack of education does not necessarily constitute "cause." Smillie v. Lockhart, 843 F.2d 295 (8th Cir. 1988).

The procedural default hurdle is too high (or the vast majority of inmates who fail to advance grounds in state court, and the merits of defaulted grounds are not reviewed in the federal habeas setting.

The sole exception to the "cause-andprejudice" analysis is that an inmate need not excuse his failure to act in state court if he demonstrates his actual innocence. 2

II. ARKANSAS POST CO VICTIO REMEDIES A. Remedies Available Following the Entry of a Guilty Plea 1. Motion to Withdraw Guilty Plea Relief is available "to correct a manifest injustice" but the motion may be filed with the trial court only after the defendant pleads guilty and before he is sentenced. 3 A manifest injustice occurs if the defendant received ineffective assistance of counsel, did not agree to the entry of the guilty plea, the guilty plea was involuntary or unknowing, or the plea agreement was undermined by the prosecutor or the trial judge. A.R.Cr.P. Rule 26.1(c).

2. Motion Pursuant to Rule 37.1 Relief may be sought within ninety days of the date of entry of judgment by filing a petition with the trial court. A.R.Cr.P. Rule 37.2(c). If successful, the petitioner could be released, receive a new trial, or have his sentence modified.

A.R.Cr.P. Rule 37.1. Relief is warranted for violations of the state or federal Constitution, for imposition of a sentence by a court without jurisdiction, for imposition of a sentence in excess of the maximum allowed by state law, or for

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other "collateral attack." A.R.Cr.P. Rule 37.1 (a)-(d). Although the most fertile ground for attack under this provision is a challenge to the constitutional right to effective assistance of counsel, the likelihood of success is slim since the defendant admitted in open court the act with which he was charged. A.R.Cr.P. Rule 24 t 6; Crockett v. State, 282 Ark. 582, 669 SW.2d 896 (1984).

B. Remedies Available Following Jury or Cou.rt Trial.

Motion Pursuant to Rule 37.1 If a direct appeal was taken, a Rule 37 petition must be filed within sixty days after the mandate is issued by the appellate court. A.R.Cr.P. Rule 37.2(c).

If no appeal was taken, the petition must be filed within ninety days of the entry of judgment. /d. The petition is filed with the trial court. The time constraints demand that a petitioner explore this post conviction option promptly. For example, Randal Ross's hope for reversal on direct appeal should be tempered with reality, and preparation for his Rule 37 petition should be underway even as he awaits the appellate cou.rt's opinion on direct appeal The grounds available are the same as those available when challenging a guilty plea. Although more opportunity for error exists in the wake of a trial than following a guilty plea, relief is still improbable.

A challenge to the assistance rendered by

counsel remains the most popular assertion" and it is the most likely route to relief. A heavy burden falls on the petitioner, as there is no right to counsel at this stage. Hayes v. Lockhart, 288 Ark. 419,706 SW.2d 179 (1986). In addition, there is no right to file a second petition if grounds are omitted from the initial effort. Rlliz v. State, 280 Ark. 190, 655 S.W.2d 441 (1986). A petitioner must request leave of the court to amend the petition, and the petitioner must perfect his appeal from an adverse trial court decision as in other cases. A.R.er.P. Rule 37.2(c). To prevail on appeal, the petitioner must demonstrate that the trial court's decision was clearly erroneous and against the preponderance of the evidence. Pettit v. State, 296 Ark. 423, 758 S.W.2d 1 (1988).

C. Miscellaneous Remedies 1. Writ of Error Coram Nobis 4 This remedy is little used because it is rarely useful It must be filed with the trial court after the trial decision and before a decision is rendered by the appellate court. Edge11lol'l v. State, 292 Ark. 465, 730 S.W.2d 898 (1987).

The sole ground for relief is an error of fact extrinsic to the record (e.g., insanity at the time of trial, a coerced plea of guilty, or material evidence withheld by the prosecutor which might have resulted in a

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different verdict. Peflll v. State, 282 Ark. 571,670 S W.2d 426 (1984); Slmllllin v State, 19 Ark. App. 165,718 S.W.2d 462 (1986).

The mere discovery of new evidence is not a basis for relief unless the evidence discovered is a confession by a third party to the crime. 1d.; Smith v. State, 301 Ark. 376, 784 S.W.2d 595 (1990).

The reward for a successful petition for writ of error coram nobis is a new trial, and a petitioner may seek a writ of certiorari if the petition for writ of error coram nobis is denied. Id. Odds of a successful petition are slim: since the parameters of a petition for writ of error coram nobis were most recently defined in the 1984 case of Pem, v. State, 282 Ark. 571,670 SW.2d 426 (1984), there is only one reported Arkansas case where a petitioner was awarded a new trial. 5 2. Petition for Declaratory Judgment and Writ of Mandamus.

A state inmate who finds fault with the ADC's computation of his term of imprisonment may petition the chancery court of the county in which he is incarcerated to (1) declare the ADC's computation in error, and (2) direct the ADC to correct the error. Sf. John v.

Lockhart, 286 Ark. 234, 691 S.W.2d 148 (1985). The most likely scenario for the use of this remedy is when a petitioner disagrees with the ADC over the number of offenses committed by the petitioner prior to his entry into the ADC. See, e.g.., Schwilldlillg v. SlIIith, 777 F.2d 431 (8th Cir. 1985). A petitioner disagreeing with the calculation of his parole eligibility date may also utilize this remedy. Gilmer v. Massey, 303 Ark. 634,

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ARKANSAS LAWYER

SUMMER 1994

799 S.w.2d 526 (1990). Unlike the petition for writ of error coram nobis, the cases

indicate no time limit for filing such a challenge.

3. Petition for Writ of Habeas Corpus 7 A key to understanding this remedy is an appreciation that "writs of ~tate and federal habeas corpus are two different remedies available in two separate jurisdictions." Wi/SOli v. Lockhart, 949 F.2d 1051,1052 (8th Cir. 1991). Two issues are cognizable in an Arkansas petition for ,,,cit of habeas corpus: (l) is the petitioner in custody pursuant to a valid conviction? and (2) did the convicting court have jurisdiction? Bargo v. Lockhart, 279 Ark. 180, 650 S.W.2d 227 (1983).

Convictions pass muster 59 long as they are not invalid on their face and there is a presumption in favor of jurisdiction of the convicting court. Wallace v. Willock, 301 Ark. 69,781 S.W.2d 484 (1989); Holt v. State, 281 Ark. 210, 662 S.w.2d 882 (1984). Given the narrow scope of the remedy, a petitioner should pursue relief with low expectations. 8 The Arkansas Supreme Court recently cleared up any confusion concerning the proper route to obtain review following a trial court 9 decision denying relief. An appeal, not a petition for writ of certiorari, is the appropriate means for appellate review in habeas corpus proceedings. 111 re Review of Hnbeas Corplls Proceedillgs, 313 Ark. 168, 852 S.W.2d 791 (1993).

4. Petition to Correct an lIlegal Sentence lO This statutory remedy was enacted in 1983 and applies only to sentences imposed following its enactment.

Hedrick v. Stnte, 292 Ark. 411, 730 S.W.2d -188 (1987). A sentence which is illegal on its face may be attacked at any time. Ark. Code Ann. 16-90-III(a). An example of a sentence illegal on its face is one which is greater than the maximum prescribed by statute. See Blallks v. Stnte, 300 Ark. 398, 778 S.w.2d 952 (1989); Finn v. State, 36 Ark. App. 89, 819 S.w.2d 25 (1991). A sentence which was imposed in an illegal manner may be attacked in a petition filed in the trial court within one hundred twenty (120) days after the sentence was imposed, or within one hundred twenty (120) days after receipt by the court of the mandate issued following disposition of the petitioner's appeal. Ark. Code Ann. 1690-III(b)(I). A petitioner who proves his original sentence was illegal or illegally imposed is not entitled to release. The relief awarded by the sentencing court is correction of the sentence. Ark. Code Ann. 16-90-III(a); Ballgs v. Stnte, 310 Ark. 235, 835 S.W.2d 294 (1992). A challenge to the sufficiency of the evidence is not a basis for

26 ARKANSAS LAWYER

SUMMER 1994

relief when raised in a petition to correct an illegal sentence. Guire v. State, 309 Ark. 209,832 S.w.2d 457 (1992).

D. One Huge Caveat For Convictions Occurring From July 1, 1989, to December 31,1990.

The Arkansas Supreme Court, frustrated by the slow disposition of the many post conviction petitions it received, acted to accelerate the post conviction process in 1989. Whitmore v. Stale, 299 Ark. 55,771 S.W.2d 266 (1989). The Court abolished the then- existing Rule 37 of the Rules of Criminal Procedure, and amended Rule 36.4 to provide a means by which a convicted individual could challenge trial counsel's efficacy within thirty days of judgment. For a variety of reasons, the cure proved worse than the illness, and the present version of Rules

36.4 and 37 went into effect on January], 1991. The effect is that a different analysis is required depending upon when judgment was entered. The current Rules of Criminal Procedure control judgments entered after January 1, ]991. During the eighteen months prior to January 1, 1991, the rules announced in Whitmore v. State, 299 Ark. 55, 771 S.W.2d 266 (1989), are applicable. Judgments rendered prior to July 1, 1989, are controlled by Rule 37 as it existed prior to that date. See Publisher's otes to A.R.Cr.P. Rules 36.4 and 37.1. II Ill. SUMMARY An attorney or an inmate with questions about which post conviction route to pursue should look first to A. R. Cr. P. Rule 37.1. An awareness of the other remedies is necessary, especiaUy if the facts

REMEDY

TIME CONSTRAINT

WHERE TO FILE

Motion to Withdraw Guilty Plea

FILE after guilty plea and before sentencing.

Trial Court

Rule 37.1 (Following a guilty plea)

FILE within 90 days of entry of judgment

Trial Court

Rule 37 .1 (Following jury or court trial)

FILE within 60 days after the mandate is issued if an appeal is taken.

FlLE within 90 days of the entry of judgment if no appeal is taken.

Trial Court

Peti tion for Writ of Error Coram obis

Petition for Declaratory Judgment and Writ of Mandamus

Peti tion for Writ of Habeas Corpus Petition to Correct An 1I1egal Sentence

Trial Court

FlLE after the trial decision and before a decision is rendered by the appellate court

Trial Court

FILE at any time \\fhile incarcerated

Chancery Court in the county where petitioner is incarcerated

FILE at any time while incarcerated

Circuit or Chancery Court in the county where incarcerated

FILE at any time to correct a sentence which is illegal on its face.

FILE within 120 days following the mandate on appeal if the claim is that the sentence was imposed in an illegal manner.

Trial Court

Trial Court

are somewhat unusual. The chart below summarizes the various remedies and the time and place for taking action.

ENDNOTES 1. Murray v. Carrier, 477 U.s. 478 (1986).

However, "[al claim of ineffective assistance of counsel must be presented to the state court as an independent claim before it may be used to establish cause for procedural default or denominated as a ground for habeas relief."

Leggills v. Lockhart, 822 F.2d 764, 768 n.5 (8th Cir.1987).

2. Murray v. Carrier, 477 U.S. at 496. A demonstration of actual innocence is not in itself the basis for habeas corpus relief, but is "a

I

gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits." Herrera v.

Collins, U.s. ,1135.0.853 (1992).

3. A.R.Cr.P. Rule 26.1. A motion to withdraw a guilty plea filed after the defendant is sentenced may be construed as a motion for post conviction relief pursuant to A.R.Cr.P. Rule 37.1. Browtl v. State, 290 Ark. 289, 718 S.W.2d 937 (1986).

4. This common law writ has not been codified. See Adler v. State, 35 Ark. 5]7,525 (1880).

5. Stnte v. Scott, 289 Ark. 234, 710 S. W.2d 212 (1986). (Relief was also awarded in Peml v. State, for a grand total of two successful coram nobis petitions.) (Altus "Shorty" Doshier, the mayor of Yellville, Arkansas, was the recipient of coram nobis relief despite failing, by half a century, to file a timely petition and despite failing to advance a cognizable claim for relief. The trial court ordered the record of the

I I

proceedings sealed. As a result, we know only that Mr. Doshier's 1932 convictions for burglary and grand larceny were set aside, and that he was reinvested of rights which were, or could have been, taken from him as a result of the convictions. See Powers v. Bryant, 309 Ark. 568, 832 S.W.2d 232 (1992).

6. Ark. Code Ann. 16-111-101-11 and 16115-101-109.

7. Ark. Code Ann. 16-112-101-123.

8. Waddle v. Sargent, 313 Ark. 539, 866 S. W.2d 919 (1993), is one of the rare cases in which the petitioner prevailed.

9. Some confusion exists about the proper place to seek habeas corpus relief. The pertinent statute, Ark. Code Ann. 16-112-102(a)(1), allows the writ to be issued by"a Justice of the Supreme Court, a judge of the circuit court, or a judge of any chancery court during the sitting of their respective courts or in vacation." However, the authority to issue the writ means little if the issuing court is without the authority to determine if the prisoner should be released.

Therefore, despite the broad scope of the statute, the petitioner should file the petition in the county in which he is incarcerated, see Mackey v.

Lockllnrt, 307 Ark. 321, 819 SW.2d 7Q2 (1991), where the court has the authority to grant the relief a petitioner desires. Although the statute provides that a petitjon may be filed in either the circujt or the chancery court, circuit courts have typically entertained such petitions. See, e.g., Wallace v. Willock, 301 Ark. 69, 781 S. W.2d 484 (1989); George v. 5tnte, 285 Ark. 84, 685 S.W.2d 141 (1985); and Barao v. Lock/tart, 279 Ark. 180, 650 SW.2d 227 (1983).

10. Ark. Code Ann. 16-90--11.

11. Two problems with the amended version of Rule 36.4 were: (1) the brief time

period in which the convicted individual was required to raise his claim of ineffective assistance of counsel. Typically, a petitioner was required to challenge his attorney's trial performance before a transcript of the trial had been prepared; and (2) the rule made no provision for a challenge to ineffective assistance of counsel on direct appeal, even though an accused is constitut路ionally entitled to effective counsel at trial and on direct appeal.

Evitts v. Lucey, 469 U.S. 387 (1985).

VALUATIONS/FAIRNESS OPINIONS Closely-held Businesses. Banks, Professional Practices. For ESOPs, gifts, estate planning, charitable contributions, minority shareholder disputes, divorces.

Economic loss studies (personal/business).

Experience with hundreds of cases and many industries. Court Testimony by creden tialed experts.

MERCER CAPITAL 5860 Ridgeway Center Parkway Suite 410, Memphis. Tennessee 38120

(90 l) 685-2120

ATTORNEY-MEDIATOR SERVICE WINSLOW DRUMMOND 711 West Third Street Post Office Box 1401 Litde Rock, Arkansas 72203 Telephone (501) 376-3021 Telecopier (501) 374-5118

DISPUTE RESOLUTION THROUGH SETTLEMENT PRACTICE LIMITED TO LITIGATED MATTERS 27 ARKANSAS LAWYER

SUMMER 1994

--

ert ones ..,...r-'- -.,..r-

The Interview Theuwyer "The interview" with Robert L. Jones ill takes place on Tuesday, June 7 - three days before he assumes the role of President of the Arlcansas Bar Association. I meet him at the Arlington where he has escaped to concentrate on Bar stuff. Coming off of a two week major trial, he is surprisingly relaxed in shorts and sandals, lounging on the couch in his suite.

The case was a monster - age discrimination against a major retail chain. Jones Ieplesented the employee - a 46 year-old man who had been replaced by a much younger man as manager of one of the stores.

His opposing counseI- big time, big firm Iitigators from LittIe Rock. "Did you win?" "Yes, 1won," he says with a grin that transforms his whole face.

1don't know much about Robert L. 28

ARl<AHSAS LAWYER

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Jones ill (Bob to his colleagues, Bobby to his friends) â&#x20AC;˘ but 1do know from other lawyers and from my limited dealings with him that he is a consummate litigator. Not only is he knowledgeable and always prepared he's quick and can be ruthless when needed. "He even made the court reporter cry m the last deposition," one source remarked. 1want to point out - we're not talking about meanness, we're talking about being so thoroughly confident in your case and your abilities that others cringe when you confront them. 1 think it's a characteristic lawyers would all like to possess But there is another ingredient that makes him all the more formidable as a lawyer - he can be totalIy unreadable. Spilling your guts about your personal life is never something you realIy look forward to, and 1could tell Jones was not real

comfortable with having to answer some of my questions. 1 saw immediately that he is a master at playing his cards close to the vest. I talked with one lawyer from Fort Smith who told me, "You know, I've known Bobby for years, worked with him, and against him. 1guess I consider him a friend, but 1can't really say 1know him like 1know other people. 1 don't think there are a whole lot of people who could say they "know him" like that.

There is a cIose circle of friends that do know him well. One of those is his secretary, Charlotte Pigg. Charlotte started working for Jones in 1970, when he joined Jones, GUbreath, &: Jones in Fort Smith. (The firm is now Jones, Gilbreath, Jackson &: Moll) "I was his first personal secretary when he got out of law school. 1 saw right away that he was a good trial

in the early years of his practice, but lawyer, and an honest has not had that opportunity lately. lawyer, but also that he "I would go and ask him for advice was a real go-getter. I usually on a daily basis at first, but knew the work would be we chose not to make it a 'father~' interesting and deal. 1 was there as a lawyer, not as challenging. It has Bob Jones Jr.'s son." Jones said he did been," Charlotte says have a hard time for the first few laughing. years practicing in the same firm with Unlike most the same name as his father. "People secretaries, Charlotte is would call and ask for Bob Jones and I truly Jones' right arm. would get a call every once in a while She schedules him where they were looking for my personally and father. 1 would ask them if they professionally, handles wanted Bob Jones Jr. or Bob Jones m his correspondence, and they would make cracks about transcribes all his wanting the real Bob Jones or Big Bob dictation - which she says Bob lones and his "right arm" Charlotte Pigg oulside lhe Jones. It really irritated me." As the is plenty - and even offices oflones, Gilbrtath, lackson & Moll in the historic senior Jones is still practicing in the oversees his personal district of Fort Smith. office, Jones to this day answers the bookkeeping. She accompanies him Jones said he liked Fort Smith and phone "Bob Jones Ill." to all of his jury trials to handle the wanted the life the small community could afford him. He went to work at The Man exhibits, find files when they are Jones has two children who he needed, call witnesses and locate any the firm concentrating in the obviously adores. His face is equipment he's using. Anyone who insurance defense area, He has since obviously expressive as he talks about limited that work for the most part has worked with Jones knows that if his adult children both living in you can't find him - find Charlotte. and has been litigating in a variety of Colorado. Michelle is his twentyShe'll always be able to tell you where areas - employment law, toxic tort seven year old daughter, married to he is and can usually answer your litigation, media law and Todd Kooi, a banker. They live in questions. "I guess after 23 years we professional malpractice. He did Englewood, a suburb of Denver, do kind of have a telepathy going. I some litigation work with his father where Michelle is getting can almost always tell what he's her masters degree in thinking or figure out what he's Environmental looking for." Charlotte says her Management. She favorite thing about Jones is that he is works for an always fair. And after some pushing, environmental firm and I finally got her to admit that the is active in thing she likes least about him is that environmental issues in he goes too fast sometimes. "He'll get their community. going so fast in his dictation when Michelle is also an he's under pressure that he'll dictate outdoors person, all kinds of directions without ever including being an avid mentioning the name of the file he's skier. In a infrequent working on." personal aside, Jones I asked Jones if he had any qualms mentions that his son, about joining his father's law firm David Phillip, is named right out of school. "No, I was after a friend of his who offered another job in Little Rock. As Two Presidents - SlJIrU' Family. Robert L.lon拢> III talks u路ith was killed in Vietnam. soon as I knew I didn't have to join his foth", Robert L.lones Ir., w110 served as Presiderrt of the David, twenty-four, lives my dad's firm 1 didn't mind doing it."

Association 25 YfQrs ago.

30

ARKANSAS LAWYER

SUMMER 1994

in Boulder where he works at a gourmet food store while waiting to go back to school this fall at the University of Colorado to pursue a masters in Economics/Political Science. He is a gourmet cook, extreme skier, and a black belt in martial arts. I ask if he wants to be a lawyer. "No, I don't think so. I wouldn't mind if he did, but right now he isn't leaning that way," says Jones, who then tells me the story of David coming into him as a young child crying because he can't be a lawyer. When Jones asks him why, he says 'Because you didn't name me Bob Jones IV: The Jones family does however, boast another lawyer, younger brother Kenny also practices with Jones, Gilbreath, Jackson & Moll.

With three members of the same family in the finn, 1 wonder if things get a little harried at limes. "You know, we all discuss things. Kenny probably works with Dad more than 1 do, but we both ask for his advice.

But you know, things are different everyday in the law. There are new trial techniques, new ways of doing things. Sometimes Dad learns from us too," says Jones.

Although the family obviously spends a good deal of lime together, Jones says they are all busy with their own lives. "Kenny and his wife have a new baby, and I travel almost every week, especially now with my activity in the Bar Association" One thing keeping Jones busy in his personal life is his fiancee, Niki Cung. It is no secret to those who have met Niki that she is much younger than Jones. He points that fact out himself by telling me when 1 ask his children's ages, "Yes, they are both older than Niki:' But before anyone makes any judgments on the situation, 1suggest they meet her.

Niki is the youngest of nine children. doing this year, we don't have lime She and her family moved to the for a wedding," Jones says, laughing, United States from Vietnam when she "But when we do get around to it, she was a mere three years old. They wants a real Vietnamese ceremony, lived in Minnesota briefly before with her family there and the robes moving to the more tolerable climate and all." I tell him quickly that I'd of Fort Smith. She and Jones met like to bring my photographer to that when she worked at his firm while in one. He says I'm not invited. high school. There was no romance Jones does have quite a quick wit. though until she came back to visit One story I uncovered was that he while in college. "Niki worked 40 received a letter from an active bar hours a week to put herse~ through member chastising him for his college at the University of Texas at apparent lack of 'political correctness' Dallas. She took 22 hours a semester in some of his appointments to and finished in three years with a 3.5 committees. Jones fired off a grade point," Jones says with pride. handwritten note and faxed it to the member saying, nGot your letter, read Besides being drop-dead gorgeous, Niki is indeed a very intelligent and well spoken woman. After talking with her, it is apparent that she is in many ways extremely mature for her age. It is when Jones is with her that you see openly his ability to be very caring and gentle. He speaks softly to her, frequently whispering in her ear and always holding her hand or putting his ann around her. And she seems to understand him A picture MY' a thoUSllnd words - Bob Jones and his fiancet, and is likewise tender in Niki Cung, enjoy a quite moment in his garden. her mannerisms with him. While directing the photo shoots I it all. Sounds like you're pissed. Call ' you soon." Needless to say, the I was increasingly aware (and downright envious!) that they appear member got a good laugh, Jones did to be in their own world at limes, just call him soon afterward and reenjoying the fact that they are appointed him to the committee of his together and comfortable with the choice.

I ask Jones what he thinks makes relationship, no matter what others may see or think. him such a good litigator. "I think The two plan to marry sometime I'm well prepared, organized and after Jones' bar year. "Niki just though I work very hard, I've fOWld a finished her first year in law school at good balance between work and the Fayetteville, so between that and all things I do to relax myself,n he says. the traveling that I'm going to be Knowing that he works out six days a 31

ARKANSASLAWYER

SUMMER 1994

politically, he's a liberal, but on the professional side, he's in charge of keeping people from getting the money they are entitled to," said EIrod.

Another of Jones's best friends, his college roommate, Chief Federal Judge Stephen M. Reasoner of Uttle Rock, echoed Cearley's comments, saying that, although he and Jones are opposites, he is really a lot of fun to be with. He describes Jones as a briIIiant and innovative lawyer and a good and loyal friend. "Bobby is one of the most enjoyable people to be around I've ever known. He's just really a fun person - you always have lunes ".,... with his two dJjJdrrn, Midrelle tmd Ddvid, 11/ Tht best quality. "He really a good time with him."

ArlingtOll Holel afIn he tlJhs office. enjoys being alive, he's John EIrod said the thing he Iikes always fun to be around and can make any occasion an about Jones is that he is a week, I ask him what other activities "persevering" friend. When I asked occasion. I think that after his year as keep him balanced as he approaches what he meant, he explained that President, the Bar Association will be his 50th birthday, also in three days. many adults don't work at their different because of that. I think it "I like to snow ski, I try to go every , friendships to keep them gOing. He will be better," says Cearley who year. I also enjoy white water says Jones does - and does a good job described Jones as a '''lawyers' canoeing, though I haven't gotten to of it. The two met while trying a case lawyer' - one you can really respect do much of it recently. I read a lot against each other fifteen years ago. I and admire."

He says Jones is one of and I really like rock-and-roll. I go to ask how a friendship developed out the best friends he has ever had. The concerts all over the country. I'm of an adversarial situation. "Oh, just two met at Hendrix College where going to see the Eagles in a month in common ways of looking at life I Jones attended one year and Cearley Dallas and then in August, I'm going guess, " said Elrod, who no longer attended two before they both to Colorado to see Steely Dan, he transferred to says, smiling with anticipation. One Fayetteville to finish of his favorite past times is reading their undergraduate and everything from legal periodicals to law degrees. I asked fiction and nonfiction bestsellers. He says he isn't able to find as much time Cearley if there was one characteristic that he felt as he'd like to read, but is excited was Jones' strongest. about the book he is currently 0, he's a contradiction working on -"Midnight in the Garden in terms - always. That's of Good and Evil," a true murder one of the things I like story set in Savannah by John about him."

Bemedt. He also tells me that he John Elrod, one of doesn't live the "single lifestyle." He Jones's best friends from goes to work between seven and Siloam Springs also seven-thirty each morning, works brought up the until five or six, goes to the gym and works out, goes home and eats a good contradictions in Jones's personality. "He's full meal, and is in bed by nine-thirty All the lanes men â&#x20AC;˘ Robert L. lones.lr., with his SOlIS, Robert 111 and Kenny. of contradictions most nights. ''I'm really pretty active for a guy my age, I'm in good shape, but I can still enjoy having fun as much as anyone. I started working out and keeping in shape because it makes me feel good and work good, and because I suess I want to live a long ¡ e. tim According to one of Jones's closest friends, Bob Cearley, also a lawyer in UttIe Rock, Jones' zest for life is his H

H

II

32

ARKANSAS LAWYER

WINTER 1994

Getting fat. I mean, getting injured leadership positions are really good leaders. and not being able to exercise and I think the Association just sitting around and getting fat. will get more stable and • Whatlrait do you value most in your friends: stronger during their Honesty. Without a doubt. tenure. Basically, I believe that if you • Who are your heroes: My father, Robert L Jones Jr.; appoint good people Robert E. Lee; and have good Scotty Baldwin, a trial lawyer in leadership, you can trust Marshall, Texas; and that the work will be done and done well.

Joycelyn Elders, United States Surgeon General.

That's whati'm counting on," said Jones.

• What books have you read lately: o major changes?

"Without Remorse" by o agenda? "I don't Tom Clancy want to change the .Il1tg<J1 dtIIrIte? -/tnU!5w NiJcj ..,....,.e oJ! in his yrml. world. I want the "The Celestine Prophecy" by The Ml smd this fDlIS a amrman position tofind them in.

James Redfield.

Association to be strong tries cases against Jones, "Trying and give the members what they • What is your most cases against really good friends is treasured possession: want - that's it." not a good idea." When I ask what he My condominium in Colorado.

Finally, I grilled Jones with the considers to be Jones's dominating questions everyone hates and loves to characteristic, Elrod thinks, then And so we begin a new bar year be asked. "Damn, Paige, these are laughs and says, "Bobby is the with Bob Jones III leading the 4,000 questions you need to ask me after a penultimate practitioner of 'work member Arkansas Bar Association. drink, when I can get really hard, play hard: but he, like me, is philosophical." I think he made a The world may not change - but I about to be worn out by living that think it will be an occasion to good effort on short notice: philosophy." remember.

• What living penon The President do you most What plans does Jones have for his admire: year at the helm of the Arkansas Bar Bill Ointon. I reaDy Association? "I don't really have a respect the guy and master plan or any kind of personal what he's done. agenda. There are two things - first, I • When and where think I've appointed very capable and were you the good lawyers to head our committees happiest in your and I think the bar staff is also very life: capable. I believe that these people Right now. I'm pretty will work hard and do what needs to content right now. be done. And John Elrod, a good • What is your greatest friend of mine, is chairing the CLE accomplishment: Committee. This is an important area I have a new one all for the Association and he has some the time - every time I great ideas - I'm confident he'll do an win a big trial I feel outstanding job. like it is a great "Secondly, I think the people lined accomplishment. up to lead the bar for the next five The clan: standing fro'" left to right: Todd Kooi, Michelle's husband, Marine lones, Robert 1tnU!5, Ir.; • What is your years - Carolyn Witherspoon and seated: Michelle JtnU!5 Kooi, Robert Jones 111, Drwid 1tnU!5. greatest fear. others I've heard will be running for 33

ARI<ANSAS LAWYER

SUMMER 1994

Cadett &Yancey; Moscow The Establishment of a Sm

n October of 1991, I approached Graham Catlett with the idea of opening a Moscow branch of his law firm, Catlett & Stubblefield (now Catlett & Yancey, A Professional Limited Company). My initial impressions of Moscow may sound discouraging to the average reader. But be patient and read on, for Moscow, and indeed Russia, is an incredibly exciting and challenging place with many opportunities. The conditions for doing business continue to improve and many companies worldwide have made a longterm commitment to invest and participate in the restructuring of Russia. I wholeheartedly agree in the soundness of their decision. In addition, Russia is inhabited by a people possessing great warmth and depth of character. I hope my discussion of the business and legal aspects of Russia do not wldermine this fact.

I

34 ARKANSAS LAWYER

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My interest in Russia began at an early age. When 1 was ten years old my mother married my stepfather, a West Fork, Arkansas native and former military translator of Russian language who had lived and worked in West Germany and studied at the Slavic languages program at Indiana University. As a boy I remember him receiving Russian newspapers at OUf Fayetteville home through the mail. He would show my younger brother and me the political cartoons in the papers, read them to us in Russian and then translate them into English. It was delightful for two young boys to hear this exotic language and sometimes our stepfather would read bits and pieces of newspaper articles or even poetry.

After high school I lived and worked with my family on OUf small farm east of West Fork a.nd for the next few years tried

n Law Firm

my hand at dirt farming, raising sheep and cattle and assisting in the management of my parents' various rental properties and small businesses. Later I received my Arkansas hairdresser's license, raced bicycles and for a while even considered myself an artist of sorts.

Having tired of dirt farming and other pursuits, I entered the University of Arkansas at Fayetteville in 1983. There, I majored in history and took every Russian course I could find in the catalogue, including a Russian geography course. I also began formal study of the Russian language.

It was in my first semester of Russian language that I met Jake Looney, who at that time was Dean of the University of Arkansas School of Law at Fayetteville.

When I met Jake I had no idea he was Dean. We quickly became friends and after Russian class would walk across

ffiee: Russia

campus together on our way to other classes or OUf jobs. One day Jake asked me what I planned to do after receiving my Bachelor's degree and I told him I planned to go to law school and then on to live and work overseas. When I asked, "What do you do for a living Jake?" He answered, "I'm dean of the law schooL" After a slight pause, I shook his hand and answered, "It is a pleasure to meet you Dean Looney!"

Jake went on to explain that he occasionally traveled to Russia to advise the Soviets on legal matters associated with agriculture and was interested in studying the language. I remembered this conversation in subsequent years.

From 1988 to 1991 I attended Law school in Fayetteville and upon passing the Arkansas bar exam and being sworn in, I immediately directed my energies toward going to Russia. My roommate at the time, and still one of my closest friends

was Stuart Fulbright, the great-nephew of former Senator J. William Fulbright. Stuart introduced me to the former Senator and his wife, Harriet and through her I received the names of a number of people in Washington who had contact with Russia. I also spoke to Jake Looney again in October, 1991, and it was he who suggested I speak to Graham Callett.

After a telephone caU, Graham agreed to meet with me in person in Little Rock.

During our meeting we discussed the possibility that I move to Moscow initially to manage the Moscow office of Graham's food export company, Quality Products International. Inc., but with the further objective of opening a Moscow branch of the law firm of Catlett & Stubblefield in six months to onc year. Graham and I still joke about the fact that in my enthusiasm I refused his suggestion to take an "exploratory trip" to Moscow rather than immediately move there lock, stock and barrel. In Graham's words it was "the mean streets" and I might question my decision after I arrived. His words were to invade my thoughts many times over the next few months.

On December 28, 1991 I accompanied Graham, the chief financial officer of Quality Products Caroline Elliot, and Little Rock businessman Charlie Vestal to the Little Rock airport for the long flight to Moscow. With us were my suitcases stuffed with all my clothes and eight cases of Idaho potatoes that Graham was bringing to Moscow as extra baggage for the Radisson Hotel, at that time one of the few foreign operated hotels in Russia. It seems the Radisson needed nice big Idaho potatoes in time for the New Year's opening of its new steak restaurant in Moscow. At approximately three o'clock in the afternoon on December 29, the airplane descended and broke through a thick cloud cover to reveal the snowy Russian landscape below. For me it was the realization of a childhood dream and a moment I will never forget. e touched down at gloomy Sheremetivo II International Airport and began to make our way through passport control. A t the customs desk, the officer stood in front of Graham and demanded to know what was in the eight large boxes we were pushing. When I told him we were carrying potatoes he looked at me as if to say, "Yes, and my mother is the Queen of England." With a small knife he cut a hole in one of the boxes and much to his surprise pulled out a large, clean, perfectly shaped Idaho potato. "Crazy Americans," he said, and with a smile

W

waved us through the line.

We were met and ushered to our waiting cars by Marina Boudilina, a street wise Muscovite and a member of the Moscow staff of Quality Products. By now it was nearly five p.m. and already quite dark SO I quickly jumped into a car with a Russian driver and we made our way to the main road leading into the city. I was je- lagged and exhausted but as we drove from the airport to the great Russian capital I endeavored to finally test my university-acquired education by showering the driver with questions about Moscow. We drove to Graham's office on Pushkin Square, dropped off some supplies and made our way through what seemed an endless array of streets to the tiny apartment Charlie Vestal and I were to share for two weeks until we each found better accommodations. The apartment turned out to be located directly across the street from the Iraqi embassy and every morning Charlie and I were greeted by grey clouds, snow and posters of S<,daam Hussein with children seated on his lap. It was hardly inspiring.

What kind of place had I flown into on that snowy December evening?

II. Moscow at the Fall of Communism Moscow is located on the same parallel as the panhandle of Alaska, but with a severe continental climate. The city itself is jammed with humanity of every ethnic makeup. If one takes into account the unregistered individuals who swarmed into the capital from the far reaches of the collapsed Soviet Empire, Moscow has between eleven and twelve million inhabitants at any given time. Only four days before my arrival, on Christmas Day, Mikhail Gorbachov had resigned, thereby terminating the U.s.S.R. and formalizing a declaration to that effect made earlier by the Republics of Russia, Byelorussia and Ukraine. The Russian Federation legally came into existence and eleven former Republics had already signed the agreement to form the Commonwealth of Independent States. In a few days the government of Boris Yeltsin planned to issue a series of decrees freeing state controlled prices for many goods and services, legalizing street trading and paving the way for the initial phase of economic "shock therapy" with its inevitable surge of inflation. Industrial output had begun to crash and continued a headlong plunge. The heady days following the failure of the August coup had given way to skepticism resulting from a rapidly falling standard of living and the rising tide of crime and official corruption. Many persons were ashamed and angered by the collapse and defeat of

35

ARKANSAS lAWYER

SUMMER 1994

their country and no one seemed absolutely sure in whose hands power lay. Privatization and liberalization of prices had not begun and shortages of even basic foodstuffs were acute in all state owned food stores. Winter was setting in and there were whispers of the possibility of social unrest. In the days, weeks and months that folJowed I was to witness the beginning of what for the mass of the Russian people may be called "The Great Russian Depression." well remember the bewilderment on the faces of the common people those fi rst weeks following the collapse of the Soviet Union and the liberalization of prices with its four digit inflation. Due to official misinformation and lack of communication with the rest of the world, many had carried an unyielding belief throughout their lives that theirs was the greatest nation on Earth. They had never been ,,,'ell-off materially, but they had always been provided for and the wealth of the West had been hidden from them.

Conditions had been deteriorating for years but within a matter of weeks their entire world had suddenly changed for the worse. Their nation had literally disintegrated and they had been plunged into abject poverty. The nation had been defeated in the Cold War, which, though economic in nature, had still resulted in material and emotional devastation. The evidence of this was everywhere.

My first problems were to learn where to find food, transportation and a more convenient place to live. The apartment across from Sadaam and the children was very small and rather far from either a subway station or a main street where I could hail a cab. In addition, the only food store nearby was a tiny state-owned place which sold only unrefrigerated meat of questionable quality, canned fish, pickJes and warm milk.

I soon learned that a major source of income for Moscow city dwellers is to lease their apartments to foreigners for "hard currency" and take up residence with another member of their family.

With this in mind I spoke to a Russian I had met and through him was able to rent a good-sized three room apartment at o.

26 Kutuzovsky Prospect, a huge Stalin era building which is the subject of at least one spy novel and the address of some members of the Andropov and Brezhnev families.

Kutuzovsky Prospect is a major thoroughfare and I found a "rynok" or farmers' market nearby which boasted a wide variety and abundant supply of foods, but for much higher prices than in

I

36 ARKANSAS LAWYER

SUMMER 1994

the state stores. This was due primarily to and in poor repair. The majority of the fact that the vendors, most of whom apartments in the building were inhabited bring their produce in from the former by very old pensioners, though a few Soviet republics of Central Asia and apartments were beginning to be leased Transcaucasia, were subject to neither by other foreign companies under state-imposed price controls, nor state arrangements similar to that by which I supply lines. On my way back from the acquired my apartment. rynok I always stopped in one of the The office itself was jammed with better-supplied state shops and bought antique furniture belonging to the owner bread at the state subsidized price of the apartment. We had one computer, a equaling one-half cent per loaf. small dot matrix printer, a fax machine, If I were running late in the mornings, electronic mail and one telephone line I would hail a car and direct the driver to which worked about half the time. Jt was take me to our office on Pushkin Square. I difficult to find even basic office supplies soon learned that one need not necessarily and we relied on Graham to bring items wait for a taxi cab to come by. lnstead, a such as fax paper, file folders and printer person can simply raise an arm and the ribbons on his frequent trips back and driver of any vehide, eager to supplement forth from Little Rock. Counting myself his income, will stop and negotiate a and my assistant, two sales price. I frequently stood in the half lit representatives, the chief accountant and street of early morning dressed in a suit two warehouse workers there were seven and tie with briefcase in hand and ended people who worked out of the office and a up stepping into a ambulance, a delivery good deal of patience was required of van or even a military vehide. If I were everyone. Pol.itical protests in the center of not in a rush I walked four blocks to the town were frequent and on more than one "metro" station and shoved my way into occasion I found it necessary to talk my one of the most elaborate and extensive way through lines of riot police to make it subway systems in the world. Begun in to the office.

I spent my first year in Moscow in the thirties with construction continuing to this day, the metro carries eight million various managerial positions for Quality passengers daily and boasts trains which Products and had an opportunity to run like clockwork the majority of the communicate with many of the time. During rush hour the trains run company's clients. In that time I dealt every fifty seconds. On those morning primarily with foreign/Russian owned walks in the cold dawns of the first weeks joint venture retail food stores and large of 1992 I would pass shabbily dressed hotels which accepled only freely people lined up for half a ----_------. block waiting for the milk store to open so they couJd purchase milk for their families at state-subsidized prices. Many of these people were grandmothers who had been standing in line since six a.m. in subfreezing temperatures.

My workdays began within sight of the Kremlin, in the small office of Quality Products International on Pushkin Square. In those early days the office occupied a single room apartment owned by the daughter of a Russian artist, whose paintings. some of which hang in the Tretyakov Gallery, were arranged throughout the room. The building, constructed before the revolution and Moscow's first "neboscreb" or Au Orthodox Russian priest, skyscraper, was dark, cold

convertible currencies. icknamed "hard currency" stores or hotels, some of them, such as Stockman's, the Helsinki-based retail giant, or the Swiss company SADKO, had been in Russia since Gorbachov's 1987 decree first allowing foreign investment. The food stores were usually managed by foreigners from the home office, with assistant managers and the regular employees being Russian. All the managers I spoke with consistently complained of Moscow's poor systems of communication and transportation, Russian banks, Moscow customs officials, the dismal condition of office and retail space and a chronic shortage of quality goods for their stores. Their complaints were valid.

It was difficult to get more than one telephone line into an apartment, which meant it sometimes took aLI day to call a client or a supplier. When the line was free the reception would often be so bad it was impossible to hear the other party.

This necessitated hanging up and trying again, only to receive another busy signal.

Sending a FAX was no less difficult.

A simple banking transaction, such as a wire transfer might take weeks and could not be undertaken unless every contract and agreement related to the transfer was fully disclosed to the bank.

The confusing array of regulations governing the transfer and sale of freely convertible currencies changed almost on a daily basis and it seemed none of the regulations were applied in a consistent manner.

The Moscow Regional Customs Committee and the State Customs Committee of the Russian Federation were often confused by orders which came from the central government. They seemed to be no less confused regarding their own discretionary authority.

Arbitrariness was the rule of the day. ecause of a lack of competition, the high costs of shipping imported building materials, the reluctance of Western creditors to finance projects in Russia as well a other costs of doing business in Russia, most of the "Western-style" office and retail space went for prices equivalent to those in midtown Manhattan. Some enterprising companies had solved the financing problem by offering leases, but with a substantial portion of the entire lease amount payable in advance. Any retail space had to be constructed by gutting an existing space and starting over from scratch, again at a high cost.

Before Quality Products became established there were no reliable

B

suppliers of imported packaged food items in Moscow. Though a few trading companies occasionally managed to bring in a container or two of goods from Europe, no one had an existing inventory in Moscow and it might be weeks before the next container arrived.

By that time the particular brands or even whole categories of goods which had been on the previous container were long sold out. thereby preventing the establishment of a brand awareness with the consumer. Store shelves often sat empty for lack of goods to sell.

Another complaint was the inefficiency and lack of initiative of the Russian employees.

The majority of Russians had been trained under a system A gatheri1lg oftbe "Black Hlmdred" 011 Red Sqll4re. which made little or no In the background is tbe Stllte Historical Museum, provision for rewarding cOlIStrllcted J 875- J 88/. creativity and hard work. In add.ition, customer service was other business opportunities. Foreign utterl y unknown to many Russians. As a companies were allowed to establish consequence, many Russian employees offices and to form partnerships with were inattentive or even surly to Russian companies. Russian companies too began to spring up on their own, and customers. 1 foreign trade, once only the realm of the HI. Business in Moscow The resources of the former Soviet state, spread within the private sector at a Empi re are huge and the stakes are high. dizzying pace. In addition, the communist At no other time in history has such an system had placed officials and managers immense empire, so long dosed off, been in charge of an extensive infrastructure suddenly opened to the rest of the world. and vast resources. Even before the end of Moscow, being the administrative, communism many of these officials and political and cultural center of this former managers saw the writing on the wall and empire, acts as a hub for communications began positioning themselves to take and commerce and is truly an what they could before the end came. international city. On its streets are With the disarray in the government and persons from the far flung reaches of the the general economic situation, there was former Soviet Union, the Americas, the very little in place to regulate the sale and Middle East, Europe, Asia and AJrica, disposition of the country's resources, each scrambling to carve a niche in the hence; the race to Russia was on.

The sudden flood of business activity new Russia and the former Soviet republics. A short walk on Tverskaya and the breakdown of administrative Street brings the sound of a multitude of control has created a type of "wild west" languages. Business transactions routinely frontier mentality in the country. This was involve dealing with persons from several especially true in the period just prior to and just after the collapse of the Soviet countries.

With the loosening of state control government. This initial period of over economic activity and the breaking entrepreneurism attracted foreign up of state monopolies there emerged adventurers of all types. Many of them were interested only in brokerage-type overnight a huge number of trading and 37

ARKANSAS LAWYER

SUMMER 1994

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transactions, and sometimes only in a single deal which, they hoped, would bring them riches overnight. Upon his first arrival the foreigner was treated like a king and introduced to all types of Russians who had, or claimed to have, connections through ties to the Communist Party. Every possible deal and every manner of promise was thrown on the table to the foreigner. Such transactions were usually between parties who had no experience in dealing with one another and who had very little understanding of one anothers' culture and language. As can be expected, such deals also attracted persons of questionable character. here were also those legitimate companies and individuals which saw Russia as a long term investment opportunity.

Pragmatic and patient, these companjes and individuals did not look to overnjght profits and one-time deals. Long after the get-rich-quick types have thrown up their hands in frustration and gone home or otherwise "disappeared," this second group of adventurers remains in Russia and is doing good business. Their numbers are increasing every day. Even before the injtiation of privatization in late 1992, the number of foreign companies doing business in Russia had swelled to many times the level of the late 1980s. As the business infrastructure has grown, so has the demand for the goods and services needed to support it. In addition, electronic communications have improved immensely and the fledgling Russian banking system is developing rapidly. New investment from Europe, America and the rest of the world has begun to change the face of Moscow.

Russian business people have become more sophisticated and many are amassing substantial capital. A good deal of the mechanisms necessary to the operation of a capitalist economy are in place. It was in light of these conditions that we chose to open the Moscow office of the law firm in December of 1992.

IV. The Law Firm and the Practice of Law in Russia A. The Market Niche In forming the law firm, our first goal was to secure a knowledgeable and experienced Russian attorney. We recognized that there are a number of advantages to having Russian attorneys on the staff, not the least of which is their ability to cope with the nuances of Russian language and culture. In addition, a Russian attorney is more Likely to be familiar with the workings of the

T

bureaucracy and the labyrinth of personal and business relationships so crucial to doing business in Russia.

Lf anyone met our qualifications it was Evgueny Boureiko (Eugene to us), a lawyer and long-time friend of Graham Catlett. Born in the Russian Far East, educated in the Republic of Latvia and an eighteen year resident of Moscow, Eugene has traveled extensively in America and throughout the world and has worked in both the public and private sectors. One of the founding members of the Moscow Rotary Club, his understanding of American business and culture, practical experience, varied contacts and real world view of the politicaJ and business climate in Russia has been invaluable to Graham in his business dealings and to the law firm in advising clients. In addition, Eugene has been involved in a host of business and political events involving Americans and Russians, and in 1987 he worked with Graham and Senator David Pryor on the Pryor's Arkansas Business Leaders Initiative to the USSR, which was attended by Mack McLarty, Don Tyson and Sam Walton.

We also invited another Russian lawyer, Natasha Priezjaya, to join the firm. Natasha's meticulous legal research skills combined with Eugene's contacts and natural business instincts helped form a solid base for the Moscow practice.

Our next objective was to define our client base and services. Because of Graham's activities, the firm already had several years of hard-won practical experience in Russia. Though we would represent a number of Russian companies, our primary client base would be those American companies who were serious about doing business in the former Soviet Union. But more pointedly, our goal was to expand the corporate practice to offer more than traditional legal services. It was our belief that the complex environment in Russia created a need for a special kind of law practice.

Based on our own experiences and those of our associates, we determined that, in many cases, the American corning to Russia is immediately beset with meetings and protocol which run up expenses and often produce no meaningful results. Cultural differences often make for markedly different styles of doing business and can be confusing to Americans. As in any country, unreliable potential business partners sometimes find their way to the unseasoned American. Projects or transactions which are relatively easy to conduct in America, but which in Russia can turn into an administrative and legal nightmare, are

described by potential Russian partners in glowing terms and in the ever present catch路all phrase, "Nyet problem!"

Our market niche lay in our ability to anticipate these situations and to advise our clients as to the viability of a project and the reliability of a partner. Through our business contacts within Russia we often begin an engagement by evaluating a client's already existing projects and performing a due diligence on the client's Russian partners. In many cases we are prepared to source and screen alternative projects and partners and provide the client with access to them. For clients with little or no experience in Russia we arrange for them to speak with potential Russian partners who meet certain criteria for reliability, and who are engaged in the type of business activity in which the client is interested. The client will be better able to focus on one or two projects that seem the most promising and will save money and effort in the long run.

Our Moscow practice involves more traditional legal services as well, such as incorporation and registration of companies, trademarks and commercial and real estate transactions and acquisitions. We also provide back up and support services. These services can include everything from meeting and greeting the client at the airport and arranging for hotels, cars, drivers, interpreters and guides, to providing an office away from home to send and receive communications. There have been numerous times when a member of our firm was the first person to shake the client's hand on arrival in Moscow, and the last person to carry the client's suitcase through customs on departure.

This kind of care and attention is not soon forgotten.

B. Special Problems From the outset there were a number of problems associated with starting and maintaining a Moscow corporate practice.

For me the greatest struggle was learning to adjust to the cultural and societal differences, some of them historical in nature, that made doing business in Russia so different from America.

In Russia, perhaps even more so than in America, personal relationships are of the utmost importance in doing business, and one-on-one contact is often critical to ensuring that a transaction does not fall through. If there is one thing the Russians resent it is the American who comes to Russia to sign a contract, is entertained by his Russian counterparts, and then flies back to America expecting business to proceed from that point through the exchange of facsimile messages and

telephone conversations. Russians can be offended if the foreigner is not wiUing to spend time in their country and meet with them face-to-face on a fairly regular basis to talk business. In negotiations Russians prefer to deal with someone clearly in authority. ussians enjoy meeting with Americans to discuss the possibility of forming a joint venture (a joint-stock company with Russian and foreign ownership) and are quick to give the impression that they hold the key to an easy deal. In the years of Gorbachov's reforms and the period leading up to privatization, Russian companies felt bound to follow rigidly the Soviet custom of drafting endless protocols (the functional equivalent of a letter of intent) in dealing with a potential foreign business partner. Though the standard business practice is changing, there are acca ional instances in which the American will encounter this process, primarily when dealing with a state owned enterprise. 2 The process often begins with a series of meetings, each meeting being followed by written minutes of the topics discussed and which includes a provision that the parties intend to meet again at some time in the future. After weeks or even months of such meetings the Russians may expect the American pa.rty to sign an agreement outlining their goals for mutual cooperation aimed at developing a specific project. The project is often immense in size and scope and the American may leave the negotiating table convinced that he or she has secured a deal that is too good to be true. However, such agreements rarely contain any concrete contractual terms and generally do not create in the parties any binding duties or responsibilities that are enforceable under Russian law. The formation of a binding, enforceable contract creating a legal entity for purposes of joint activity is immeasurably more complex than most Americans are first led to believe.

The political and economic situation in Russia also makes it difficult to finalize an agreement or complete a project. It is common for business negotiations to drag out for weeks or months before a concrete agreement is signed. Soon after the American party leaves for America with the understanding that a deal has been struck the Russian party may suddenly change a material element of the deal.

Many times this is due to fluctuating supplies or the effects of double-digit monthly inflation on the price of goods

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and services that are the subject matter of a contract. However, the change in terms can also be the result of the Russian idea of what is acceptable in business. Some Russians have been known to change suddenly the terms of an agreement to their advantage, even if a contract has already been signed and no other significant business factors are present.

This is particularly true where a Russian factory or other production facility is selling goods to a foreign buyer. If the other party has signed a supply contract for widgets at $10.00 per unit, the Russian reasons that party will surely pay 10% or even 25% more per unit. The rules of business are new to many Russians and verbal or even written commitments often are therefore simply not observed and the idea of pricing oneself into a market is still unknown. fficial corruption can also be a problem. From the traffic cop who waves down foreign make cars for no apparent reason to the upper echelons of the Russian government and their ties to organized crime, it is difficult to operate in Russia without experiencing the effects of official corruption on some level. That Russian government officials expect and even demand payoffs or bribes is accepted as an unquestionable fact, and for the companies of many countries it is treated as a normal cost of doing business in Russia. However, the combination of this unpleasant reality and the restrictions placed on American companies under the foreign Corrupt Practices Act makes it Ilt:l:t:ssary to scrutinize painstakingly every deal involving an American client and a government entity or official. 3 As with official corruption organized crime in some manner effects nearly every aspect of Russian society. A contract, a project, even a banking transaction is potentially subject to interference from criminal elements. Russian newspapers regularly report of employees of banks supplying customer lists and account information to crime groups for purposes of extortion and "protection." To take only Moscow as an example, it is generally accepted that there are several large, loosely organized crime groups in and around the city, some of them being drawn along ethnic lines such as Chechen, Georgian, Azerbaijanian or Russian.

These groups interact with one another and have divided the city and its regions into spheres of influence. In addition, there are further divisions drawn along the types of business activity which fall under the control of a particular group.

O

40 ARKANSAS LAWYER

SUMMER 1994

Not merely drugs and prostitution, but the export of certain natural resources, the extortion of the vast majority of the retail outlets, and even the output from major factories have been divvied up among various crime groups. Needless to say this can pose a problem in advising the American client.

The Soviet bureaucracy and its Russian successor are notorious in the minds of Westerners and Russians alike.

Unanticipated problems and unimaginable, seemingly illogical delays are the rule rather than the exception and often stem from superfluous steps within the system and a lack of computerization.

The result is long lines and gruff, sometimes hostile administrators and clerks, making it extremely useful to have a personal contact within the particular office responsible for your matter who can facilitate the movement of documents. In

economic confusion within the country.

There exists what I call the "overnight delivery syndrome."

The new Russian constitution declares that all laws come into force only upon their official publication. On its face this is comforting because new " u kazi" (decrees), "instruktsii" (instructions) and a host of other letters and orders which effect the corporate client are issued on a daily basis. Unfortunately, they are aU too often retroactive in nature and are handed down overnight or on short notice, sending companies scrambling and creating a situation fraught with headaches for the firm representing corporate clients. For example, in March of this year the Russian government issued a series of substantial new import duties on alcohol and some food items. It had been known that changes were due to take place sometime in March but no

A group ofprotestors during the riots surrounding the coup to rid Russia ofBoris Yeltsin and his followers. addition, the practice of offering and accepting favors, which reached new heights under the Communist regime, is prevalent in every level of the bureaucracy and has bled over into the private sector as well. Do not be surprised when even the teller of a commercial bank expects a "present" to ensure that your wire transfer goes through on time.

It is a respectable task to remain updated in American law. Keeping abreast of Russian law is a serious concern and is especially problematic due to the Soviet tradition of withholding information from public record and the current administrative, political and

indkation was given as to how much the increases would be until the day they came into effect. 4 The result was that customs offices and some retail stores carrying imported goods found it necessary to close for a day until the situation could be assessed.

There is also a lack of instruction from the top. At times a higher state organ hands down a vague and broadly written decree or law and it becomes the responsibility of various subordinate ministries, agencies and committees to write an instruction setting out guidelines for enforcement of the decree or law. In any country this can cause some degree of

delay until the administrative system adjusts to the change. In Russia this can result in near chaos. Subordinate state

bodies often do not know of the rule's existence or are as baffled by its text as the attorney attempting to get information about it. This can create a situation in

which the subordinate body, probably due to confusion, seems to exercise some discretion in the method of enforcement.

In one instance we developed a system of first locating and interpreting the intent of a law, determin.ing if there is an existing letter of instruction or other procedures

and then contacting someone within the subordinate body by telephone and

that temporarily added to the problem of re-registration for some companies. espite what is often heard in the West, there are sources of Russian law at the lawyer's disposal. The main problem lies in a noticeable lack of an extensive and organized reporting system as we know it in America. Surprising to most American lawyers is that Russian language newspapers and journals such as "Rossiskaya Gazeta" (Russian Gazette), "Financovaya Gazeta" (Financial Gazette), "Ekonomika i Zhizn" (Economics and Life), "Kommersant" (Commersant Daily),

D

inquiring: (1) whether they know of the

"Zakon" (Law) and "Nalogi" (Taxes) are

law and of the instruction, and if so; (2) whether the instruction is being enforced in the manner it is written.

A state body sometimes issues law at variance with its own earlier law or with law issued by another state body. This is

considered to be one type of official Russian source of law. They publish full or partial texts of presidential decrees, legislation, major decisions of the Supreme Court and Supreme Arbitration Court, a good portion of the multitude of instructive letters and orders issued by the various ministries and administrative departments as well as commentaries on new legislation. Imagine my curiosity upon first arriving in Moscow to see Russian attorneys and accountants leafing through newspapers and cutting out the texts of laws and court decisions for storage in the file cabinet.

In addition, the Supreme Court and Supreme Arbitration Court of the Russian Federation publish their own official bulletins ("Vestniki") containing decisions and commentaries. There are also compilations such as "The Collected

best explained by the following real world example.

In 1993, in an effort to effect a transition from Soviet era law to new Russian legislation, the Moscow city government required all companies in Moscow with foreign capital and which did not meet certain defined exemptions to re-register with the Moscow Registration Chamber.

The Moscow Registration Chamber then issued its own order outlining requirements for enforcement of the city decree. S This was followed by a separate

order from the State Customs Committee to all Moscow customs offices requiring documentary proof of re-registration as prerequisite to the clearance of any goods imported by a company.6 One of our American clients was importing goods through a Russian company that did meet one of the enumerated exemptions from the re-registration requirement. However, the customs office refused to clear a shipment of goods, even after the exemption was carefully explained. The customs office had its own orders that mentioned nothing about the exemption.

Upon contacting the Moscow Registration Chamber we were told the exemption is indeed valid and that there is absolutely no need to re-register under Russian law.

Another trip to the customs office was met with the same resistance as earlier. We finally convinced the registration chamber to create an exemption from the exemption and re-register the company. They issued us a special letter stating we had applied for re-registration and it was grudgingly accepted by the customs office. Curiously, the offices of the Moscow Registration Chamber were burglarized two days later and all its computers were stolen, an event

Decisions of the President and the Government of the Russian Federation."

Before being abolished after the events of October, 1993, the former Supreme Soviet and the Congress of Peoples' Deputies published a bulletin of decisions, many of which still remain in effect. No similar bulletin based on the new Parliament has yet been issued. There are also several

computer data bases, the best of which are produced in Russia. Unfortunately, they do not include all Soviet law still in effect.

Without a doubt one of the best sources of Russian law is not found in a book or a newspaper. Instead, a well placed telephone call to the proper Russian administrative office wilJ sometimes yield an opinion on the existence or the likelihood of enforcement of a rule with the potential to effect the corporate client.

There also exists an extensive network of friendships and professional relationships from which information or suggestions regarding the source or validity of a law or instruction can be obtained. When all else

fails, pick up the telephone.

This is the first installment of a two-part article. Tlte second part of O,e article will appear ill tlte Fall 1994 ;sslle of Tlte ArkallSils Lawyer. That installment will be a survey of some areas of Russian Law and the conclusion.

The entire text of the Endotes will be included at the end of that article.

Gregory E. Padgham is an associate i" the Little Rock law firm of Catlett & Yallcey, where his practice focuses 011 advising American corporate clients doing business ;'1 the former Soviet U'1io11. The Jiml currently consists of five American and two Russian attomeys. Three attorneys are on a permanent basis ;'1 Moscow tIIId one works primarily in Little Rock. Three of the firm's attorneys travel back and forth between tlte Moscow and Little Rock offices. Special recognition goes to Evgueny BOllreiko and Nataliya Priezjaya of the Moscow office ofCatletl & Yallcey for tlte;r valuable contriblltioll i/1 the preparation of this article.

ENDNOTES 1 This situation has changed much over the last several years as Russians have gained experience working under capitalism and with Western companies. Today many Russians, especially those of the younger generation, are creative and energetic in the work place and have become sophisticated members of the work force. Many of them have developed impressive resumes.

2 I want to stress that today the custom of trading endless letters of intention is, by-andlarge, the exception rather than the rule. Many Russian companjes are experienced in dealing with foreign business partners and foreign transactions and are prepared to begin concrete negotiations immediately upon a first meeting.

However, many state-owned and privatized enterprises are headed by old fashioned

management which still insists on doing business according to Soviet customs.

3 See generally 15 USC Sec. 778 dd, which prohibits an American company or its officers, agents or employees from giving a foreign official anything of value for purposes of influencing any act or decision of that official in his official capacity.

4 Decision of the Government of the Russian Federation o. 196 of March 10, 1994.

Concerning Approving the Rates of Import Customs Duties, Collected Decisions of the President and the Government of the Russian Federation, No. 11, Art. 863 (1994).

5 Decision of the Moscow Government, No. 184, Concerning the Order of Foundation, Registration. Records and Control of Enterprises with Foreign Investments Using Municipal Property, Vesb1.ik of the Office of Mayor, No. 10 (1992); Order of the Moscow Registration Chamber of February 12, 1993, Concerning Conducting Re--Registration of Enterprises with Foreign Investments Based in Moscow.

6 Order of the State Customs Committee of May 20, 1993, Concerning the State Registration of Enterprises with Foreign Investments.

41

ARKANSAS LAWYER

SUMMER 1994

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43

ARKANSAS LAWYER

SUMMER 1994

TED BOSWELL

JAMES

OUTSTANDING LAWYER "Ted Boswell is, in every sense of tile pllrase, an outstanding lawyer." So said the nomination forms extolling Ted Boswell as 1994 Outstanding Lawyer.

"Ted is a lawyer who loves his profession and always seeks to serve the interest of his clients while, at the same time,jollolVing the highest standards ofthe legal profession."

Boswell has been profiled in The Best Ulwyers in America since 1983. He is one of three attorneys in the state listed in both plaintiff and defendant representation in personal injury litigation.

He lias served lIis profession as Chair of the Young Lawyers' Section, member of the House of Delegates and Executive Council of the Arkansas Bar Association and President of the Saline County Bar Association, and in numerous positions in his community.

PHILIP

OUTSTANDI G LAWYERCITIZEN "James Cox's int'Olvement in professional, politicat, and community circles is exemplary by any standard. He does not join organizations simply to provide an impressive resume. He joins to contribute to his community, to effect change where it is needed, to counter the trend of lawyer baSllillg, and to show his children that citizenship is everyone's responsibility," said the nomination of James Cox. Cox IUlS served his community extensively on its school board, as President of the Sebastian County Bar AssociatiOll and President of the Greenwood Lion's Club, Director of the Sebastian County 4-H Foundation and member of the Greenwood United Methodist Church. He is a model lawyer and citizen.

E. DIXON

C. E. RANSICK AWARD OF ExCELLE CE "The 35 years that Philip E. Dixon has practiced law have been a living testament of service and excellence. He is a person who never seeks individual recognition, but is always quietly working behind the scenes on somethillg to better the legal professiOll. .. A headline in the March 1, 1993 edition of Arkansas Business says it all: 'Phil Dixon Gives Profession a Good Name'" These words spoken of Phil Dixon aptly describe the lawyer who wholly deserves being honored for his outstanding cOlltributiOlls to the profession.

O. COX

HERSCHEL H. FRIDAY LAWYER-HUMANITARIAN AWARD The tragic loss of Herschel H. Friday caused tawyers to reflect tlUlt lhis giant of the legal profession was just as much a giant in humanitarian activities. Since 1952, he served Children's Hospital, including being its board president, and guided its dt'l>elopment into an outstaluting healing institution. Constantly he immersed himself in the work of both fund raising and mafUlgelllent of a multitude of charities plus being an extraordinarily generous contributor. A few activities and recognitions demonstrating his int'Olvement include: President of the Arkansas Association of Retarded Children, March of Dimes Citi;:en of the Year, and Easter Seals Arkansan of till! Year, Truly he gave of himself to improve the lot ofhumankind.

OUTSTANDING LOCAL

BAR ASSOCIATIONS

PuLASKI COUNTY BAR ASSOCIATION Tile Pulaski COlmty Bar Association is honored this year for its public service accomplishments for activities beneficial to the legal profession and to the communities in Pulaski County. President of the Putaski County Bar Association for the year was Heury Hodges.

SEBASTIAN COUNTY BAR ASSOCIATION The Sebastian County Bar Association is lIonored again this year for its public service accomplishments for activities beneficial to the tegal profession and to the communities in Sebastian County.

President of the Sebastian County Bar Association for tile year was Wyman R. Wade, Jr..

YOUNG

LAWYERS'

SECTION

COLUMN

The Young Lawyers' Section: We Want You!

By Steven W. Quattlebaum

The most formidable challenge facing the Young Lawyers Section is recruiting active members. Our

Section has approximately 2000 members, but only 100 could be described as active members.

Perhaps this paucity of active members is due to inadequate publication of the activities of the Section. So exactly what does the Young Lawyers Section do that could possibly interest the 1,900 members who are not act.ive?

• The YLS conducts the Bridging the Gap Seminar to assist new lawyers make the difficult transition from law school to the practice of law.

• The YLS co-sponsors with the Young Lawyers division of the W. Harold Flowers Law Society a minority recruitment conference designed to educate high school and college age minorities about the requirements for admission to law school and the opportunities available in our field. This program is in its infancy, but holds great promise and is sure to become one of the best programs of the Section.

• The YLS publishes the Consumer Law Handbook to assist the citizens of the state in obtaining information that may help them avoid deceptive practices, oppressive tenancies, and telemarketing fraud, among other things.

• The YiS publishes the Arkansas

Senior Citizens Handbook which provides information to the senior populace of our state on problems they encounter, including living wills, health care and social security.

• The YLS publishes the statute of limitations handbook which has kept many a lawyer out of a sling.

• The YLS publishes a Disaster Relief Pamphlet which provides information regarding FEMA regulations and the procedures of other organizations during and following natural disasters.

• The YLS proposes resolutions to the Arkansas Bar Association's governing body (House of Delegates) on a variety of issues affecting our practice.

• The Yl.S sponsors Doctor/Lawyer teams for educating school age children on the dangers of drug use.

• The YlS participates in Law Week by coordinating and assisting in mock jury trials conducted by high school students around the state.

• The YLS sponsors the Spring Trial Practice Seminar in Hot Springs, which many of us have enjoyed, and benefited from, for many years.

These are merely some of the projects and programs supported and sponsored by the YLS. During my eight years of involvement in the YiS, I have observed the dedication of former officers which has produced growth in the active membership and an increase in the number of projects

of the YlS. As I succeed Brian Ratcliff,

who has done an outstanding job as chair, I hope we can broaden significantly our base of active members, enhance existing projects and programs and implement three new projects that promise to be rewarding and worthy of participation by all of our members. The new projects are: Young Lawyers as Mentors: This program is designed to link law students and young lawyers. To the extent possible, the law student and young lawyer will be from the same area of the state. As the mentor, the young lawyer can offer basic advice to the law student about law school, summer employment and the transition into practice. Additionally, the mentor will expose the law student to the many opportunities and projects offered by the Arkansas Bar Association. The goal of the program is to help the students through some of the practical difficulties of law school and lead the student to become involved in the bar association. The program is designed to be flexible and the level of interaction between the young lawyer and student will vary with each team. Stuart Miller and Alicia Thorne-Corke are coordinating the program. If you are interested in serving as a mentor, please contact Stuart or Alicia.

Santa Clause Hotline: This is a fund-raising program the proceeds from which will be divided between 45 ARKANSAS LAWYER

SUMMER 1994

the Section and certain charities. The proceeds allocated to the YLS will be used to support the mentor program.

It has been successfully conducted in other associations and involves selling telephone calls from Santa Claus. Young lawyers will make the telephone calls around the week before Christmas.

The 3-Point Attack Against Cancer: The most ambitious program to be initiated this year is the 3-Point Attack Against Cancer. Under this program, lawyers wi thin the entire bar association will pledge 5~, 1O~, 25~ or more per three-point shot made by the Arkansas Razorback basketball team. The pledges will be collected at the end of the year with the total being awarded by the Arkansas Bar Association to the American Cancer Society. This project should receive some publicity favorable to the Bar during the radio and television broadcasts of the games. Coach Richardson and the American Cancer Society have endorsed the program and, with enough work and a little luck, we should be able to generate an impressive total, especially with the sharp shooting of the National Champion Razorback team.

The success of these and other

I

productive projects depends upon broader participation among the young lawyers. The Young Lawyers Section strives to provide greater access to justice, encourage and assist in minority recruitment and foster within

our

profession

more

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Getting involved is easy, just let any YLS officer know you are willing to help.

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ARKANSAS LAWYER

SUMMER 1994

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I Want to go to Law School

By William A. Martin

"I want to go to law school. Where should I go to college and what should I study?" These and similar questions are asked of many of us from time to time.

Recently I responded to a letter from a 15 year-old student, and it occurred to me that my words might be useful as a starting point when you get such questions (and you have my permission to use as much as you wish without attribution.)

Dear Miss Smith: We were glad to get your letter and know you are thinking about your future and about becoming a lawyer.

You asked about universities to attend, and the good news is you are not likely to make a mistake. Your diligence in pursuing an education and your ability will have far more effect on how well you do in pre-law studies, in law school, and as a lawyer than the particular college and law school you attend.

Having said that about schools, I will express some opinions. If you expect to stay in Arkansas or return to Arkansas, there can be some definite benefits to attending college here and getting to know people you will work with throughout your life. My pre law and law school education were at the University of Arkansas. I spent 28 years in the Air Force as a lawyer and found my education was good enough that I was on a par with lawyers from bigger name schools. Now, 39 years out of law school, I would not change a thing about 48 ARKANSAS LAWYER

SUMMER 1994

my education. The law schools at both Fayetteville and Little Rock have excellent programs. I know many fine, very successful lawyers did their pre law work at small colleges in Arkansas.

Likewise, many fine lawyers went out of state for either their pre law studies or law school or both.

The best advice I received on preparation for law school was: "Take lots of English." Lawyers and law students work with our language. Developing your ability to write. both through writing courses and through exposure to literatu.re, will serve you well as a student and a lawyer. Beyond a concentration on English you should seek exposure to a wide variety of courses. Probably the best preparation is liberal arts with enough business courses to have a good understanding of how businesses operate.

You need enough psychology and philosophy to aid you in understanding people. Some history and political science will help you grasp the interrelationship between the judicial system and our political institutions in general. The orderliness of mathematics aids you in developing your powers of logic and in placing a structure on things your learn. Science is necessary for an understanding of the physical world. Almost anything you study has the potential to be useful background for cases you may handle as a lawyer. Vou wiJI find many times you must become an

expert in a very narrow subject to handle a particular legal matter. If you know some basic information about a subject and the terms used in connection with it, that knowledge makes your self-study through reading and talking to experts that much easier.

Law school requires dedication. The work is hard but the knowledge and abilities you gain fully reward you for the work you do. While you are in college and law school, participate in some campus activities. You need the broadening experiences of doing something in addition to studying. Much of what I learned through participation in clubs, publications and campus politics has been just as relevant to some of the work I do as the things I learned in a formal classroom setting.

While I was always headed toward becoming a lawyer there were times I had doubts about that goal, and I seriously thought of pursuing other studies. Vou do not have to decide at age 15 or even at 20 or 25 what your life's work will be.

Circumstances and opportunities may be reasons to change.

Do not change direction lightly, but do not fear making a reasoned change of direction.

Good luck in your pursuit of an education and thank you for the opportunity to express some of my ideas about preparation to be a lawyer.

Sincerely, William A. Martin

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By Kay Collett Goss 253 p.p. Westport, CT Greenwood Press Reviewed by Ted Boswell

"Tile People Mode tile COllstitutiOIl, mId Tile People COli Ullllloke It!" This academic publication, written by Kay Collett Goss and published by Greenwood Press, is an important new addition to the dearth of literature on Arkansas Constitu-tional Government. It is particularly welcome, not only as a resource, but also as a history and a constitutional exploration. The book's foreword was written by the Honorable Wilbur D. Mills, just before his untimely death, and reflects his deep interest in constitutional law and his deep devotion to Arkansas for his entire lifetime of service and study.

Rutgers University of New Brunswick, ew Jersey, is publishing a fifty-volume series on all states' constitutions. This volume on Arkansas is one of the first to be published.

Kay Goss was an inspired choice to write such a volume. She served as Research Assistant to The Arkansas Constitutional Revision Commission in 1967 through 1968, on which I served as

50

ARKANSAS LAWYER

SUMMER 1994

an appointee of then Speaker of The House Sterling Cockrill. She was an academic protege of Arkansas's leading expert on the State Constitution and state government, Professor Henry M. Alexander, founder and Chairman of The Department of Political Science at the University of Arkansas at Fayetteville, 1937 through 1969. In 1968, I made constitutional revision a major issue in the gubernatorial campaign, and Ms. Coss was a researcher and writer in those efforts. Kay Goss also served as Research Assistant for The Constitutional Convention in 1969 and as Seventh Research Director of The Eighth Constitutional Convention in 1979 to 1980.

This book is her third. She coauthored a book with Dr. Alexander, THE CITY MA AGER PLA I ARKA SAS, published by the University of Arkansas and co-authored a book on constitutional revision in the late 1960s, POLITICAL PARADOX, published by the ational Municipal League, New York City. She has been working in Arkansas government and politics for 28 years. She is currently, in her spare time, winding up the research and writing the biography of Wilbur D. Mills, her political mentor and personal friend, and beginning a book on women in Arkansas politics.

The major strength of this book is its Herculean effort to put each section in historical perspective and to explain its significance. The result is a volume that is of great value to students, citizens,

political leaders, and the legal profession in general. As Chief Justice John Marshall wrote in Callens v, Virgil1ia in 1821, "The people made the Constitution, and the people can unmake it! It is the creature of their own will, and lives only by their will. " This book empowers people by giving them a handle to secure a firmer grasp on their state's charter for understanding and for revision.

The book includes a series foreword

by Rutgers University Professor G. Alan Tarr; a personal foreword by Mr. Mills; an introduction by Ms. Coss; a constitutional history of Arkansas; a section-by-section cOl1lm~ntary on each provision in the state constitution and its 73 amendments, as well as a listing of the 169 amendments which have been proposed throughout the years. At the end, there is a lengthy detailed bibliography and a list of court cases referenced in the text, as well as an index.

I keep my copy close by.

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Forty years ago, when the first Brown v. Board of Education I case was decided, I was a graduate student in political science at Duke University. I had the good fortune to be working for the Chairman of the department, who was appointed by President Eisenhower as the first Chairman of the U. S. Civil Rights Commission, despite the fact that he was also Chairman of the State Democratic Party.

Anyone who knew much about this subject could have anticipated the Brown decision. The cases dealing with higher education, such as MclAuritl v. Oklahoma State RegeHts 2 and Sweatt v. Painter,3 made it apparent that when this question arose, the Supreme Court would hold as it did. Moreover, aside from being morally correct, the Brown case was constitutionally correct. Everyone knew, before any of these cases, that the dissent in Plessy v. Ferguson 4 was a correct interpretation.

Despite all of that, I submit to you that the tools or instrumentalities that have been employed since the first Brown case in 1954 have sown the seeds for the failure of desegregation and for the deterioration of the public school system in the United States. And I further submit that unless changes are made, the public schools will continue to deteriorate to the point that we will achieve almost complete economic segregation in this country, in which wealthy and upper middle class whites will be joined by wealthy and upper middle class blacks in the private and parochial schools, while the poor and lower middle class whites and blacks are consigned to the public schools. That is already happening in Little Rock as well as elsewhere. The

private schools do not discriminateexcept on the basis of money - and any child whose parents can afford it is welcome. There being no discriminatory intent or purpose in this arrangement then under Arlillgtoll Heights v. MHDC 5 it is perfectly lawful.

In my view, this has come about, first of all, through efforts of the Supreme Court and the federal court system to implement what it believed to be required by the second Browll case. This is particularly the result of Swann v.

Charlotte-Mecklenburg Board of Educatio1l 6 approving of mathematical quotas and of the use of busing to achieve the mathematical goals, and the second Milliki" vs. Bradley 7 case which opened the way to special requirements being imposed which had the effect of greatly increasing the costs of desegregation. This latter situation, in my view, reached its nadir in Missouri v. Jeukills,8 a decision that I personally regard as contrary to the Constitution.

Today, the desegregation of the Little Rock, North Little Rock and Pulaski County school districts, which my wife oversees with the help of the Office of Desegregation Monitoring, is consumed with these problems which resulted from SwamI 9 and Millikill 11 10_ these being the problems of achieving the required racial balance in the Little Rock public schools, as called for under the plan which the Little Rock schools participated in writing and which the Eighth Circuit subsequently approved. This plan requires such mathematical precision that even minor changes in white enrollment at some of the schools can lead to noncompliance. Much of what the District

Court has to do, in this type of situation, becomes a matter of mathematics that has little to do with what desegregation was intended to accomplish. Moreover, and most important, it has little or nothing to do with quality education. In the process of busing students over substantial areas among the three school systems, more and more families become turned off by the seemingly endless {and to them, pointless} practice of busing, and more and more leave the public schools, further agitating the mathematical problem which forms an essential part of the school plan. There is a belief on the part of many that only \,rhites abhor busing,. but that is not correct. A substantiaJ part of the black community, if not a majority, would prefer neighborhood schools or at least, school choice, to busing. Moreover, as a result of the necessity for obtaining an acceptable racial balance in the Little Rock schools, it is necessary at times to close schools in predominantly black neighborhoods that simply cannot be integrated. The plan requires this. When schools are closed in black neighborhoods, one of the major anchors for the black community has been eliminated. There are three basic anchors- the family, the church and the school. Single-parent families are commonplace today in the black community. Eliminate schools, and you are largely left with only the church as an anchor. The by-product of this disintegration of the black community has been crime. Consequently, J contend that this aspect of desegregation has been at least one of the causative factors for the rise of crime and the organization of gangs in cities throughout the U. S. A second problem, the one that stems from Milliki" J1, 11 is the attitude that if you throw enough money at a problem, it can be solved. Lyndon Johnson believed this; he declared war on poverty and poverty won. It does not surprise me that a Democrat who has devoted his life to public service, Bill Clinton, wants to reform the welfare system. Whether you are a Republican or a Democrat, if you are intelligent, the failure of welfare programs to achieve their goals is too apparent to argue over.

Yet, this is phenomenon that we see in the desegregation process throughout the country. In Kansas City, there has been more public spending on the Kansas City, Mo., public schools than probably on any school system in the history of man. Yet, article after article, including one a couple of years ago in Tlte ABA !ouma/,12 have either reached the clear conclusion that the Kansas City experience has been a 51

ARKANSAS LAWYER

SUMMER 1994

----------

failure or have provided facts that make that conclusion undeniable. Kansas wheat farmers nearby have been the chief beneficiaries through the building of new suburbs across the line in the Tenth Circuit. In Little Rock, there is a set of schools known as "incentive schools" which receive twice the budget allocation of the regular schools or the magnet schools. These schools, however, have been a complete failure, with one possible exception out of the seven such schools.

They are very heavily black; they have not attracted whites; and contrary to the Court orders have so far made no real effort to attract whites (which they are unlikely to do anyway). The State of Arkansas is pouring $130 million into the county desegregation effort, as the result of an agreed-upon, court-approved settlement.

When most of that money runs out, in 1996, the requirements of the desegregation plan will remain, but all three school systems will go bankrupt shortly thereafter. Will the Eighth Circuit and the U. S. Supreme Court mandate increased property millage for the public schools? Maybe so, maybe not. In Arkansas, unlike Missouri, property millage or taxes must be voted on and approved by the public. Will the Supreme Court hold that a property tax may be levied directly on the people for this purpose? Keep in mind that neither the U.s. Constitution nor most state Constitution mandate that a public school system be maintained.

It is my contention that more flexibility is required in order to save the public <;;chools and in order not to destroy them. More of the attitude that prevailed in the cases of OklallOma City Board of Education v. Dowell 13 and in the DeKaib County case 14 in Georgia will be essential if we are to avoid the eventual destruction of public school education as we know it.

Othenvise, it will end up like the confirmed jogger taken to the emergency room of the hospital- he is in perfect condition, except that he is dead.

ENDNOTES; 1. 347 U.S. 483 (1954). Brarun held unconstitutional racial segregation in the public schools in a unanimous opinion of only ten pages written by Chief Justice Earl Warren.

2. Mcumrill v. Ok/ahoma State Regents for Higher Education, 339 U.S. 637 (1950), was also a unanimous opinion written by Chief Justice Fred Vinson. It involved an African-American graduate student who had been admitted to the University of Oklahoma by order of a federal district judge. Mclaurin, however, was thoroughly segregated within the university in class, in the libr<lry, and in the cafeteria. The

52 ARKANSAS LAWYER

SUMMER 1994

Supreme Court declared all of that to be invalid.

3. Srueatt v. Pailller,339 U. s. 629 (1950), decided at the same time as McLAurin, was also unanimous with the opinion by Chief Justice Vinson. Sweatt had been denied admission to the University of Texas Law School because of his race. To avoid admitting him, the State of Texas had csmblished a separale law :.chool for blacks. The Court ordered Sweatt adntitted rejecting "separate but equal" and made it clear that that standard in higher education was not attainable.

4. Plessy v. Ferguson, 163 US. 537 (1896), upheld the constitutionality of a Louisiana statute which required railroads to provide equal but separate accommodations for both races. The case is chiefly notable for the dissent by the first Justice John Marshall Harlan, which formed the basis for later rejection of "separate but equal" in the cases involving education.

Harlan saw the Thirteenth Amendment as not only abolishing slavery, but also as striking all "badgelsl of servitude." Harlan said that the "Constitution is color-blind, and neither knows nor tolerates classes among citizens." 163 U.S. at 559.

5. Arlington Heights v. Metropolitan Housing Development Corporatioll, 429 U.S. 252 (1977), involved an effort by the housing authority to build housing for low and moderate income people in the Chicago suburb of Arlington Heights. (This was interrelated with Hills v.

Gautreaux! 425 U.s. 284 (1976), which required the Chicago Housing Authority and HUD to utilize the entire Chicago metropolitan area, including the suburbs, 10 disperse publicly finance housing throughout the whole area.)

Arlington Heights held that normally a "discriminatory purpose" or intent would be required to invalidate a zoning regulation under Ihe Fourteenth Amendment, and that the argument of "discriminatory effect" was insufficient. Upon remand, however, to determine whether the requirements of the Fair IlousiJlfj Act might require a different standard as to public housing, the Seventh Circuit answered in the affirmative and listed four critical factors which had to be considered in that situation - including the fact that "discriminatory effect" was relevant when it has a greater adverse impact on one racial group than on another or when it serves to perpetuate racial segregation in a community and that some evidence of discriminatory intent was relevant even if inconclusive. 558 F.2d 1283 (7th Cir. 1977). The Supreme Court denied certiorari in 434 U.S. 1025. See generally, Wright, Constitutional Rights and Land Use Planning; The New and the Old Reality, 1977 Duke L.J. 841

(197B).

6.402 U.S. 1 (t97l). SIOOtln was a logical extension of Green v. County School Board of New Ke"t County, 391 U.S. 4-30 (t968). Gree" delivered a major blow to the "freedom of choice" concept in school desegregation plans. Green lay the basis for mathematical quotas with racial composition of schools reflecting the school-age population - and also for busing. It was a unanimous opinion by Justice William J. Brennnn.

7. Milliken v. Bradit'y, 433 U.s. 267 (1977) (generally known as Milliken II) held that federal courts could order previously

segregated school districts to take actions not directly related to racial balance. Educational improvements, such as remedial reading courses, could be required as a part of the remedy.

B. 495 U.s. 33 (1990). Bya vote 015-4, the majority opinion by Justice Byron White approved an mdirect remedy to set aside limits placed by state law on the authority of school districts to increase property taxes. The district judge had ordered a lavish program of expenditures, amounting to more than a halfbillion dollars, in an effort to attract subu.rban whites to the inner-<:ity schools in Kansas City, Missouri, and to pay for it, he had assessed 75% of the costs to the State and 25% to the school district and had ordered the district's property taxes doubled even though they would exceed the cap placed on them by state law. The Supreme Court majority sought to avoid this by ordering an indirect remedy, based on equity, to remove Ihe cap and achieve essentially the same objective. In contrast to the convoluted majority opinion, Justice Anthony Kennedy's opinion for the four dissenters saw this to be a distinction without a difference and stated flatly that a federal court could not impose a state tax. The Arkansas property millage laws, requiring a vole of the people within a school district in order to raise the millage, are different from those of Missouri, and were this issue to arise in Arkansas, the eventual result might differ from the majority opinion in Missouri v. Jenkins.

10.ld., note 7.

11. Id., note 7.

12. E.g., Presser, Broken Dreams, 77 ABA Journal 60 (May, 1991), which points out that after five yenrs and the expenditure of over $375,000,000, the schools as segregated as ever.

(In fact, more recent statistics indicate that they are more segregated than they were when the process began.)

13. Oklalloma City Board of Education v. Dowell, 111

s.Ct. 630 (1991), held that desegregatioll

remedies were intended to be temporary and not last in perpetuity. Once a school district had complied in good faith for a reasonable time and vestiges of former racial discrimination had ceased to the extent reasonable to achieve, it could be declared a unitary system and the remedies would no longer apply. The school district had achieved unitary status in 1m and in 1985, the school district terminated busing for radal balance and reassigned students to neighborhood schools with the result that about half of the elementary schools were more than ninety percent of one race.

14. Freemmr v. Pitts, 112 S.Ct. 1430 (t992), involving the De.Kalb County, Georgia, school system, held that the District Court had the authority 10 relinquish supervision and control over the school district in incremental stages before full compliance had been achieved in every area of operations. 112 S.Ct. at 1445.

Racial balance, said the Court, is not to be achieved for its own sake, but is to be pllrslled only whell there is a causal fillk between all imbalallce and a violation of tile C01lstitlltion. 112 5.0. at 1447.

The opinion was delivered. by Justice Anthony Kennedy. There were two concurring opinions and no dissent.

Members Attend ABA Conferences, Offer Reports Just Solutions: A Public Forum on the Justice System The Just Solutions Conference was called for the purpose of involving the public in crafting solutions to the crisis in the justice system. As Chief Justice Rehnquist said this issue is far to important to leave it just to lawyers and judges.

Reading the pre-conference materials is scary. Some are reproduced in the May 1994 issue of the ABA Journal ("Voices of the People," p.74, eg.) The cries of dissatisfaction with the justice system come from all quarters: minorities, corporations, consumers, small business, local government, and law enforcement.

The lawyers response all too often has been to devote energies to just solutions of the client's particular problems, and not just solutions of the judicial system's problems. In many instances, lawyers have simply not responded to the wakeup call.

When lawyers do act, all too often solutions are superficial and established with little follow through. Since Bar Associations are voluntary associations, there exist few mechanics to propose or implement long-term solutions to the basic problems confronting the legal profession. For example, one suggested solution was day care centers in the court house for children of families appearing in court. This hardly addresses the problem of why the families are in court in the first place. Restructuring the court system to establish a family court is a just solution, but it takes leadership from the Bar, involvement of the public, and commitment of lawyers to accomplish this type of profound change. That change, of course, only goes to efficiently administering the justice system for families, not really solving the problem of why families are in court in the first place.

The state's failure to provide just solutions and the resulting impact on lawyers is no

better stated than Mac Luffman's article in the most recent issue of The Arkansas Lawyer ("Tile Expalldillg Role of the Gllardiall Ad Litelll.... ", p.ll). Simply put, the welfare agency's failure to respond to children in need has caused lawyers to become advocates for children as guardian ad litem; so it is lawyers, not case workers, who are now charged with protecting children in Arkansas. Again, just solutions require adequate motivation of case workers and adequate funding of welfare agencies, or the justice system will continue to be saddled with one more social problem that doesn't belong in the courts.

The major findings of the comprehensive legal needs study published in 1994 by the ABA for the Conference revealed, among other things, that approximately half of aU households surveyed face some situation that raised a legal issue during a one-year survey period. Over half of the low and moderate income persons surveyed either handled the situation by their own initiative or took no action at all. Of those who turned to the civil justice system over haU of the low income and nearly 40% of the moderate income persons were dissatisfied with the system. These appalling statistics can harcUy be ignored by lawyers in the Arkansas Bar Association.

Many "just" solutions now in effect elsewhere in Arkansas leave lawyers out; just a few which were mentioned are: • on-lawyer community advocates representing persons in rent abatement, landlord-tenant, social security and HMO disputes.

• Pro bono mediation.

• Courthouse kiosk for computer generated do-it-yourself legal forms similar to bank ATM machines.

• Pro se modification of child support.

Literally hundreds of solutions were proposed and a number deserve consideration by the Arkansas Bar Association. Several have been discussed from time-to-time by Arkansas lawyers, such as non-partisan judicial elections,

family courts, and alternative dispute resolution. We believe all of these deserve further and more energetic support by the Bar. Other ideas which also merit the Arkansas Bar's attention are Cleveland's Task Force On Violent Crime which resulted in that city dropping from its ranking as America's fifth most violent city; the St. Louis Summer Internship Program which provides an opportunity for at-risk youth to intern in a professional employment setting; law graduates internship; required law school courses in law practice management; and the chief justice as CEO of the judicial system.

After participating long hours (Monday 8:30 a.m. to 8:30 p.m.) for three days, it was extremely gratifying to see that Arkansas is in the forefront of addressing some problems that are just now being addressed at a national leveL We are justifiably proud of the state bar efforts to face the issues. As an example, one law profes or panelist observed that lawyers are not significantly involved in the delivery of pro bono services, whereas Arkansas lawyers have participated to the extent that pro bono services are routine and an AVLE dessert is a regular feature at the Association's annual meeting. More to the point, the Arkansas Bar's Committee for a Modern Judiciary has aLready proposed root cause solutions not trendy, superficial fixes, and Arkansas has already recognized the need to involve the public, because one-half of the Bar Committee are laymen appointed by the Governor and Chief Justice.

To paraphrase Attorney General Reno, the justice system stands at the end of the line after all other institutions have failed and we must discuss justice in the larger sense. While the public must be involved in just solutions (for indeed the public controls Congress), lawyers are the best trained for just solutions. Does the Constitution really prohibit spanking as school discipline? Does the Americans with Disabilities Act really mean that mentally disabled have a right to practice law? We believe bar associations must expend time and resources to carefully 53 ARKANSAS LAWYER

SUMMER 1994

examine "the law" which results in compounding - not solving - the justice system crisis. How the law is interpreted is directly related to just solutions - justice in the larger sense.

A formal report on Just Solutions will be published by the American Bar Association during President Jones' term as President and he is requested to distribute it both to state and local bar leaders.

Respectfully submitted, John P. Gill Arkansas Bar Association Conference Delegate Carolyn Witherspoon President-Elect, Designee 1'.5. By coi"cidellce, both of llS read while

travelillg Arkallsas lawyer Grif Stockley's newest novel Religious COfJviction. As would be expected, Carolyn Ii/lished.

Racial And Ethnic Bias in the Criminal Justice System: A Report On The Summit

By Supreme Court Justice Robert L. Brown Last March, Wendell Griffen and formed the Arkansas dde15ation for a twoday summit in Washington, D.C. on racial and ethnic bias in the justice system. The conference was sponsored by the American Bar Association. A national conference on the subject was apparently a first for the ABA. The catalyst for the conference is best expressed by a poll that was distributed to the attendees. The poll was taken by the National Conference of Christians and Jews and dramatically illustrates the wide gulf in perception between blacks and whites on the subject of the conference.

According to the poll, a whopping 80 percent of blacks saw racial prejudice in the justice system or, to put it differently, that they could not get a fair shake in the courts of this land. Whites on the other hand viewed the system much more favorably. Only 45 percent of whites believed that equal justice was not afforded to blacks under the law.

Tha t was a na tiona I poll. On a more 54

ARKANSAS LAWYER

SUMMER 1994

local level, a survey of Arkansas lawyers to assess perceptions of discrimination against black attorneys in the legal profession in this state was published in the Arkansas Lawyer in 1992. This poll was a project of the Arkansas Bar Association's Commitlee un Opportunities for Women and Minorities in the Law Profession, working in conjunction with Chief Justice Jack Holt of the Arkansas Supreme Court and the Administrative Office of the Courts.

Again, the disparity in point of view between the races was marked. The vast majority of black attorneys who responded to the poll, 73 percent to be exact, believed that white attorneys fared better in the sense of attaining respect and status in the profession while only 45 percent of white attorneys agreed with that view. In a related vein, 80 percent of black attorneys believed that blacks were better off than their white counterparts in law firms while 38 percent of white attorneys agreed.

It is clear that blacks and whites simply do not view their status either in the judicial system or in the law practice in the same light. So how do you bridge this chasm in perception? Bill Ide, the personable President of the ABA who hales from Atlanta, believed that the summit in Washington was one way to sta.rt. And he was right in one respect. The speakers and the panels were excellent.

Luminaries ranging from former Atlanta Mayor Maynard Jackson to Rev. Jesse Jackson to Legal Defense Fund Director Elaine Jones to syndicated columnist Vernon Jarrett to Assistant Attorney General for the Civil Rights Division Deval Patrick were there to talk about the problem. Their subjects ranged from the L.A. riots to the absence of minorities on the federal bench to vehicles to monitor prejudice in the justice system.

While I certainly do not agree that our justice system is discriminatory to the core, I do believe that we need to do more to promote better under-standing in this sensitive area. Six years ago I wrote in a report for the Winthrop Rockefeller Foundation entitled ~I he Second Crisis of Little Rock, A Report on Desegregation Within the Little Rock Public Schools: "The gap must be bridged between the black and white communities to eliminate racial separatism, mistrust, and bitterness in Little Rock. This means attitudinal changes and hard work on the part of both races. It also means the development of leadership for better and more extensive lines of communication between the races .... Fear and a racial camps will only heighten mistrust and suspicions and delay a meaningful confrontation with community and social needs." The issue then is how to eliminate separation and foster more confidence in the justice system.

There appeared to be little difference of opinion among the speakers at the conference on what to do about violent crime. At one point Maynard Jackson said that the [Rodney King] riots "were wrong, period." And Jesse Jackson pronounced that regarding certain homicides, "What's wrong with one strike and you're out?" Of course, that is the law in Arkansas for a capital murder conviction.

On the other hand, several speakers commented on disparity in treatment in the system and cited how they believed that suburban youth (predominately white) arrested for delivery of cocaine were treated differently from inner city youth (predominately black) arrested for dealing crack.

Therein lay part of the problem with the summit. By and large it was long on discussing examples of racial and ethnic discrimination but short on

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advancing solutions. At one point, Legal Defense Fund Director Elaine Jones urged that her panel and the participants at the summit expend their energy on solving the problem of disparity in treatment rather than ferreting out examples of discrimination. Most in attendance, I suspect. silently agreed as a story had been told by three different minority speakers about how they had been mistaken for defendants by different judges while their more disheveled white clients were addressed as the supposed counsel. Those related incidents were entirely demeaning and regrettable, but the energy and focus of conferences now must be on effecting better sensitivity and communication and eliminating mistrust and resentment.

Despite that observation, two ideas worthy of discussion d.id emerge from the conference. The first has been bruited about Arkansas for several years. lt is that a task force or commission be established by the Supreme Court in partnership with the Arkansas Bar Association on racial and ethnic bias in the justice system.

Seventeen states} and the District of Columbia have established commissions, and the National Center for State Courts has published a how-to manual entitled Establishing and Operating a Task Force or Commission on Racial and Ethnic Bias in the Courts. A committee with a charge to explore whether a task force or commission would be an effective tool in eliminating vestiges of bias in the court system, whether perceived or real, and with a mandate to report back to the Supreme Court with recommendations within a fixed period of time would be an appropriate first step. If a permanent commission or task force is deemed to be warranted, those recommendations should include the composition of the recommended entity and its mission.

In this regard, the Supreme Court adopted by per curiam order on July 5, 1993, a revised Code of Judicial Conduct which includes a proscription in Canon 3 against a judge's manifesting bias or prejudice in the courtroom and which requires a judge to stop lawyers from engaging in similar conduct. A question for an exploratory committee would be how a task force or commission on racial bias would improve on what is already in place.

The second proposal of note was a mentor program for young delinquents who are in the juvenile court system and who qualify for such supervision. The 56 ARKANSAS LAWYER

SUMMER 1994

program is styled Reclaim Our Youth and promoted by the Rev. Jesse Jackson and his Rainbow Coalition. Churches and synagogues would sponsor the mentors who would have to be cleared by the police and trained and certified. These mentors would then take on the juvenile as a project and shore up areas where the child's family life is deficient. It is the decision of the trial court whether to recommend this kind of supervision.

The program is not for the violent offender or for the incorrigible offender but is for the juvenile whose future may still be hanging in the balance. Wendell Griffen said it best: ''In Africa there is an expression. It takes a whole village to raise a child." That philosophy stands behind the Reclaim Our Youth program and must take hold on an expansive scale if we are to salvage the next generation of youthful offenders. I am told on this point that former Municipal Judge Jack Holt, Sr. ushered in a similar program in the early 1970's using churches to assist on certain first offender cases involving juveniles.

In one critical respect the summit fell short.

Someone, presumably the American Bar Association staff, did not market it well. I found out about the conference at the eleventh hour and only

by happenstance was able to attend. Only four state supreme court justices attended; I was the only white male. In fact there were very few white males there.

And attendance was low generally. Very few state bar preSidents, prosecutors, public defenders, and trial judges came.

Again, the speakers and panelists were first rate. But it was not lost on them that they were preaching largely to the choir, and several commented on this.

On a more positive note, C-Span televised part of the summit live, and Wendell Griffen, who will chair the Arkansas Bar Committee on Women and Minorities next year, made an impassioned statement that what was needed was action to eliminate racial bias in the justice system and not simply well-meaning bromides from people of good will. The comment was a call to action a nd one of the best of the conference. It received considerable comment and acclaim.

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Are you the Swan Song?

(Yes, I am.)

By Victor A. Fleming

(" Ain't you the humor columnist that used to write for The ArkallSllS Lawyer?")

("Yes, I am. ") For the past ten years I've been fortunate to participate, with the Bar Association and Foundation, in the production of this magazine. Through two editors and executive directors, I have observed its constant effort to be of high quality and readability. It' s been an opportunity and experience hundreds of thousands of lawyers never have. It's a concept that even "LA. Law" never dealt with.

(Am I grateful? Yes, I am.)

In a popular '80s' TV series Dick Van Patton played the role of a family humor columnist for a newspaper (a la Charles Allbri~ht) who, at home, was rearing eight kids (with his lovely wife Abby). To do something like that (the writing thing, not the eight kids thing or the wife named Abby thing) was always part of my dream. And, to fulfill the dream, "LLL" was conceived to be a humor column for the family of Arkansas lawyers.

In 1984 I asked then-editor Ruth WilHams for a shot at writing something witty, local, and unifying for The ArkmEsns Lnwyer. Her response: "Go for it. " She encouraged me mightily in the early years, during which the columns were often satirical and anecdotal. She understood I had no plans to have eight kids.

I look back on some of those pieces now and think, "How weird!" But then, childhood is weird and any repeating unit of literature, being an extension of its human creator, endures a growing process, replete with infancy, 58 ARKANSAS LAWYER

SUMMER 1994

adolescence, etc. LLL reached maturity some years ago and, with this installment, officially retires, steps down, turns in the bel t. Wha tever.

(In last quarter's magazine ten letters to the editor protested, to one degree or another, LLL's shelving its disk. Let it be known that I am truly grateful to the folks who wrote those letters and to others who voiced similar sentiments in the corridors of courthouses, coffee shops, and the Revenue Office while waiting to renew car tags.)

While many episodes in recent years have focused on courtroom and deposition excerpts, that was never intended to be the focus; it was just the area that brought the most contributions from the extended family-like BeeLl and David and Marilyn and Tim and Fred and Peter and Lisa and Charles and Robert...(My goodness, there's more than eight of them out there!). My personal favorites were the columns about experiences only tangentially related to law practice. They were the ones that came from someone's heart: October 1985-"Out of the Mouths of Babes"; An Arkansas lawyer's five yea.rold searches closets, then asks, "Where's the lawsuit you won today, Dad?" July 1986-"An American Lawyer in the USSR": An Arkansas lawyer defies the Moscow militia while snapping photos in front of the Kremlin.

January 1987 - "From Kazakhstan with Love": An Arkansas lawyer eats lamb's face and drinks fermented mare's milk in Alma Ata. July 199Q-"Law Night at Ray Winder Field": An Arkansas lawyer's six year-old

is showered with beer from the press box as a Supreme Court candidate's spouse works the crowd.

April 1992-"A Leg Up on the Cops": An Arkansas lawyer's seven year-old hangs a fake leg from the trunk of his aunt's car, prompting homkide calls to a small town police department.

Autumn 1992-"Moppets Take Manhattan": Loose coverage of the Democratic Convention in New York, including three Arkansas lawyers' 12 year-olds' first rescue by the Secret Service.

Winter 1993-"No Laughter, this Time Only": A eulogy of an Arkansas lawyer's father, which brought more reader communications than all the columns befure it combined.

I have been extremely blessed in my "writing career:' which spans 26 years, including publication in 20 or so periodicals (and the publ.ication of one or more books, depending on how you count). But the fondest memories will always relate to the ten years spent as a columnist with The Arkansas Lawyer.

(And, hey, ten years is longer than "L.A. Law" lasted, although shorter than "Gunsmoke" did.)

TO THE WONDERFUL FAMILY OF LOYAL READERS A D CONTRIBUTORS OUT THERE IN MAGAZINE LAND, LLL WOULD LIKE TO TAKE ITS FINAL BOW AND PROCLA1M: THANK YOU VERY MUCH! FROM THE HEART! (" Are you finished now?" ("Yes, I am. ") Š 1994 by Victor A. Fleming

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Real Problem with Real Time

By Stan Rauls

Computer Services, Inc. is marketing an escrow accounting program known as The ESCROW System for use in trust accounts. The program has many excellent features which are highly useful in administering client funds and maintaining trust records. The program has a remarkably low learning curve, and the relative ease with which the software may be operated will undoubtedly be attractive to one looking to minimize administrative tasks. Unfortunately, there is one major problem - the program is so simple to learn and operate that a Neanderthal could figure out how to steal client funds and conceal the theft long enough to be settled on a south sea island before getting caught!

Too often, lawyers are unskilled in maintaining accounting records and delegate such "menial" tasks to clerical personnel. Even those attorneys who have accounting backgrounds rarely prefer to "hone" their skills while engaged in the practice of law. A system of records which is easily administered with a minimum of involvement by attorneys is desirable for most aU lawyers.

However financial records, whether computerized or maintained manually, must have sufficient safeguards to ensure an adequate accounting of funds especially client funds - and that they are difficult (if not impossible) to steal.

Granted, no method is foolproof, but The ESCROW System provides too great a temptation for unscrupulous employees.

The problem arises with the program's check writing feature and its editing capabilities. Its latest version (The ESCROW'Plus System, release 3.0), contains a check writing function for use with laser printers. Naturally, it is cumbersome to manually write a check only to be required to enter the same 60

ARKANSAS LAWYER

SUMMER 1994

information into a computer for record keeping purposes. The software permits one to input the information and let the computer print the checks. (The system also permits the entry of checks written manually.) This portion of the program works well, and properly allocates the check to the indicated dient and bank account. At that point, the computer maintains an accurate record of funds on hand, both in total and for individual clients, and can print a variety of client, attorney or funds reports.

If one is to rely on the computer to maintain accurate records and account balances, it is critical that the data in the computer match the documents generated (here, the checks and client ledgers). Voided checks and corrected entries are likely to occur in the course of business, and any good accounting package will permit the correction of errors. However, once a check has been printed (and especially signed), some record must be kept to ensure that it is either paid or properly voided. Once allocations have been made to a client ledger, there must be some record of subsequent changes to permit an attorney to understand or explain the reason for any alteration. A program which does not record the alteration of client ledgers or hank balances after checks have been written presents a serious problem for attorneys trying to supervise multiple employees or associates handling a variety of transactions.

With The ESCROW'Plus System client ledgers may be altered at any time prior to bank account reconciliation without any recordation of the reason for the change. The program permits the issuance of excessive and duplicate checks as well as lapping (laking from

one client and covering the theft with proceeds received from another). The ease with which client ledgers may be altered after the issuance of checks readily permits the total obliteration of the original records, and a review of the client ledgers without a detailed comparison after receiving bank statements would not indicate any problem with the account(s). Until checks cleared the bank (or until your formerly friendly banker called to share the news of an overdraft), one would have no indication if something were wrong.

Real-Time states that numerous law firms, some with multiple attorneys and employees, have been using the software without problem. In fact, the ability to write checks without sufficient funds on deposit or to edit entries were revisions requested by many lawyers who had a legitimate need for that flexibility.

A typical example is the real estate attorney who prepares checks for closing.

If the check could not be prepared in advance, the transaction could not be closed; if the entry could not be easily corrected, clients might have to wait for tedious correcting entries to be made. Certainly, that flexibility could be an advantage to an escrow officer or to an attorney who believes life should be so easy, but for those who need the maximum assistance in keeping accurate records and safeguarding funds, the software presents a serious problem.

Unless one writes one's own checks, it is important that the record created match the written documents. If that is not the case or if the original entry can be changed without notation, the computer records lack any degree of reliability.

Although this program does preclude changes to any check after the bank account has been reconciled, an

attorney who waits for bank statements to be returned (or worse yet, who never reconciles statements) is gambling 011 the integrity of every employee who has access to the computer. Even an employee who with good intentions attempts to correct client ledgers can totally destroy the reliability of the records because of error. This would require a time consuming verification or reconstruction of trust account records.

For those who do write their own checks or find this to be no cause to interrupt to a good night's sleep, the program has many excellent features. it will (unless altered) accurately track clients for multiple attorneys using one or more bank accounts and print detailed reports of funds received and disbursed. As discussed, corrections may easily be made, and the input operator is warned by a beep and a prompt if an expenditure will exceed funds on hand for any given client. The warning cautions against but does not prevent an overdraft of a client's funds.

The check writing feature reduces the need to make both manual and computer entries. Attorneys who use window envelopes for checks should note that the program does not print the payee's address for mailing. The program does not permit a single check to be written and charged against multiple clients. This makes transfers to the firm's general

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account for fees or expense reimbursement tedious since multiple checks must be written.

During review, the software was tested on different computers, and the program did not seem to recognize certain color computer cards, i.e. one might see a black and white screen on a color monitor. Additionally, the software lacked the capability of any user to change

screen colors to suit one's individual preference.

The program was written, in part, to accommodate interest allocations for

future versions of the software. The suggested retail price for the basic program is currently $495.00 ($505.00 with check writing capability), and additional

features (e g. archiving, merging, data exporting and additional report writing) may be purchased separately. Toll-free technical support is available. The software is marketed by RealTime Computer Services, Inc., 547 Saw Mill River Road, Ardsley, New York 10502 (914) 693-7000.

clients or IOLTA, but no special entry

screen was added to adjust for bank service or check charges without the creation of a special account. Inactive accounts or clients may be deleted to conserve computer storage space and access time, and the program displays warnings against charges to them. It does not, however, create a record of such attempts for use as an educational tool or audit trail.

The program may be used in an IBM

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SUMMER 1994

Roy FINCH, JR. Roy Finch, Jr., of Little Rock died in April at the age of 63. He received his J. D. from the University of Arkansas at Fayetteville and served as Assistant Attorney General and Chief Assistant Attorney General of Arkansas. He went into private practice in 1960. He was a retired major in the U. S. Army Reserve, a member of the Westwood Masonic Lodge, a Scottish Rite Mason and Scimitar Shriner. Finch was also a member of the United Methodist Church.

He is survived by his wife, Mary Lee Shelton Finch; a daughter, Brenda Thomas; two sons, C. Richard and David R. Finch and four grandchildren.

MURRAY ORVILLE REED Murray Reed, of Little Rock died in April at the age of 95. He was the former Pulaski County chancellor who ordered the Little Rock School Board not to open

Central High School as a desegregated school in 1957.

Reed also ruled in 1966 that Arkansas law prohibiting the teaching of evolution in secondary schools was unconstitutional.

Reed was a member of the American, Arkansas and Pulaski County Bar Associa tions.

JAMES

H. PILKINTON

Judge lames H. Pilkinton, 80, of Hope died in June. He was an attorney, former Arka.nsas state Senator and Judge of the Arkansas Court of Appeals. Pilkinton was an elder of First Presbyterian Church, member, founder and former President of the Pioneer Washington Restoration Foundation, former member of the Board of Directors of Hempstead County Memorial Hospital, former member and president of the Hope Board of Education, former member of the Board of Trustees

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of Henderson State University and a member of the Hempstead County and Arkansas Bar Associations. He was a Navy Veteran.

Pilkinton is survived by his son, James H. Pilkinton Jr.; a daughter, Tena P. Carter; a brother, three sisters and six grandchildren.

JOHN

L. WILSON

Judge John L Wilson, of Hope died in June at the age of 75. He was a retired Municipal Judge, a graduate of the University of Arkansas at Fayetteville School of Law, former mayor of Hope and a member of the Board of Trustees of the University of Arkansas for ten years.

Wilson was Past President of the Hope Lions Club, a member of the First United Methodist Church of Hope and a veteran of World War 11.

He is survived by his wife, Charlie Gillespie Wilson of Hope.

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