VOL.29_NO.3_SUMMER 1995

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EDITOR'S

REPORT

The Good Rap

by Stacey DeWitt

Lawyers get a bad rap.

Often criticized and rarely praised, as a group they are almost never recognized for their volunteer hours of community service. The collective efforts of attorneys has historically shaped government more than any other profession. In every community, attorneys are the outstanding citizens, the ones who give back. Individually they are often recognized and revered. Still, the collective is often despised.

So how does the impeccable reputation of one begin to change the

soiled reputation of many? The Arkansas Bar Association offers an opportunity. Changing the corporate image always takes individual effort. The Bar is our corporation. It offers those respected individuals the opportunity to get involved in good collective causes and provides us with an opportunity to make great changes in the profession and the community that acting alone we could not achieve.

The Bottom Line: Individual service is the best way to change the corporate image. Get Involved. This issue of the Arkansas Lawyer shows you how. Whether your interest is pro bono, legislation, or a particular area of practice, the Arkansas Bar Association offers the potential for an individual to make a difference. The first step is signing up.

In my short time with the Bar, [ have seen dramatic results.

Individuals collectively changing laws, providing services to the poor, and educating the public. In most instances the Bar has offered the group the vehicle to do good. Every profession has its dark side. There are bad doctors, accountants and lawyers. The trick is shifting the spotlight. Only the collective can change the reflection. It will be corporate involvement that determines whether attorneys get the bad rap or good.

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VOLUME 29, NUMBER 3

Arkansas Lawyer

PUBLISHER

Arkansas Bar Association ARKANSAS BAR ASSOCIATION 400 \X'.

~larkham

liule Rock,

Arkan~s

""n01

CONTENTS

EDITOR

Stacey DeWitt ASSOCIATE EDITOR

Sara Landis EDITORIAL ADVISORY BOARD Mary L. Broadaway Thomas M. Carpenter Wendell L. Griffen Matthew Horan Brian H. Ratcliff Robert D. Trammell Ruth Ann Wisener

OFFICERS President

Carolyn Witherspoon President-Elect Harry Truman Moore

Immediate Past President Robert L. Jones 1JI Secretary -Treasurer Frank B. Sewall Executive Council Chair Sandra Cherry Young Lawyers' Section Chair Stuart Miller Executive Director

William A. Martin

In Every Issue: 1 Letter from the Editor 4 President's Report 6 Executive Director's Report 17 Young Lawyers Section Report 18 Law Office Technologies 33 Law, Literature & Laughter 34 CLE Director's Report 40 Disciplinary Actions/ Advisory Opinions 44 In Memoriam

By Stacey DeWitt

By Carolyn Witherspoon

By William A. Martin

By Stuart Miller

By Jacqueline Wright

By Vic Fleming

By Charlotte Morrison

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 The ArklVlS.tZS I.Aw!Jn (USPS 546-040) is published quarterly by the Arkal'\YS Bar Association. Second class postage paid at little Rock.. Arkansas. POSTMASTER send address changes to llre Arkansss Lawyer. 400 West Marl<ham, Little Rock,Arl<ansas 72201. Subsmption pri<e to ~membersof the Arkansas Bar Association $15.00 per year and to members $10.00 per year included in annual dues. Any opinion expressed herein is that of the author. and not necessarily thai of the Arkansas Bar Association or The ArkaHS4S Lawyer. Contributions to The Arkansas Urtvyn' are welcome and should be sent in two copies to

EOnoR. The Arkansas Lawyer, 400 \rYesl Markham. little Rock.. Arkansas 72201. All inquiries regarding advertising should be sent to Thl! Arkansas Lawyer at the above

ad"""'-

Features: 7 MEMBERSHIP SERVICES 8 HAVE WE TOLD YOU WE THANK YOU 12 1995 AWARD RECIPIENTS 15 a & A ON LEGISLATION

20 22

LETTING AN OLD FAMILY SECRET OUT

30 36

FLORIDA BAR V. WENT FOR IT, INC.

By Harry Truman Moore

By Judith Gray

By Jack McNulty

By Sandy Moll

CAROLYN WITHERSPOON

By Stacey DeWitt Carolyn Witherspoon, President of the Arkansas Bar Association for 1995-96, talks with Stacey DeWitt about her priorities for the bar year, her community projects, her family and her hobbies.

LAWYER REFERRAL SERVICE REPORT

By Lucinda McDaniel

By Ann West

PRESIDENT'S

REPORT

Service to Each of You

by Carolyn Witherspoon

The Bar Association is faced with many exciting challenges and issues for the next year. I am looking forward to working with each of you as these opportunities arise and feel fortunate that so many talented people have agreed to assist me.

Sandra Cherry, the new Chair of the Executive Council, is already hard at work. David Matthews, Chair of next year's Annual Meeting, has put together a fine committee and they are lining things up now. Both of these people would welcome any suggestions that you may have.

Service to each of you is of paramount importance. Bob Cearly has agreed to chair the Membership Committee this year. We hope to be able to negotiate We will also be addressing your concerns on lawyer advertising. Henry Hodges is chairing a committee composed of a cross section of lawyers to review the recent U.s. Supreme Court decision on the Florida rules, the Bar's petition on lawyer advertising before the Arkansas Supreme Court, and what the Bar needs to do, if anything. A part of our Bar package in the last legislative session, the nonpartisan election of judges, was not passed. We have asked that the Governor include that legislation if a speCIal session is called. The Bar WIll be takThe Arkansas Lawyer

service on boards and comnlissions, and III all aspects of volunteer work.

We must strive to give something back to our

next year.

communities and to our profession.

Domestic violence affects all of us, not only as members of our profession, but as citizens. I have asked Sandy Moll to investigate the possibility of a statewide conference on family violence. Ideally, this would pull together all of the social and legal entities that deal with this issue daily.

Members of the Bar are closely moni-

I was lucky last year to serve as President-Elect under Robert L. Jones III. I not only gained valuable experience that J hope will help me through this year, I also made a wonderful friend.

Bobby served you all well. He is a hard act to follow.

I am looking forward to working with H.T. Moore, the President-Elect. He is already preparing himself for hi' y"ar and working on the Mid-Winter meeting in January.

Last, but not least, I want to thank my husband, my family, and the attorneys in my firm in advance for their support of me that will allow me to juggle my practice with the Bar work. A special thanks also to my right arm, Judi Dyson.

The Bar Association means a great deal to me. Involvement in the Bar over the years has been fun, challenging, and made me a better person a nd a better lawyer. Now I have the unique opportunity to give something back to my profession and am grateful for that. I invite each of you to contact me with your con-

toring the situation involving Legal

Services. Regardless of our political affiliation, we must commit to deliver legal services to the poor and ensure that they are not cut out of our justice system.

This State and lawyers in general have

some innovative new benefits.

4

ing a leadership role on that issue.

Martha Miller Harriman has agreed to Chair the Legislation Committee for the

Summer 1995

been under intense scrutiny in the last

year. It is important that each of us conduct ourselves in a manner that is not only above reproach, but we must make the extra effort to address the perceptions about our profession. We all do "good" things for our profession, our clients, and our communities daily. The Bar can help in making sure that the positive aspects of what we do are recognized. There is still a lot that we must each do individually, however. We must all get more involved in leadership positions in the commullIty, I1l the legislative process, in

cerns and ideas.

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EXECUTIVE

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DIRECTOR'S

REPORT

Why Be Part of the Organized Bar?

by William A. Martin

To me the quick answer to "Why be part of the organized bar?" has always been "It's a professional obligation. " But, for all of us, the answer is far more complex. A mixture of sense of duty and self interest that different lawyers balance in different ways provides the motivation.

Here in Arkansas, as in 17 other states, membership in the state bar association is voluntary and I like it that way.

A bar association ought to be in circumstances so it has to provide services and ways its members can accomplish their "service to the profession goals" if it is to attract their participation and their dues.

Of course this requirement is always present at the national and local bar associa-

tion levels.

So, UWhat's in it for me?" you may ask. While financial b~nefjLs are a significant consideration, I hope our main motivation is the satisfaction we achieve by contributing to making our profession and our system of justice better through the synergy of the efforts of lawyers working together. Judge Bill Wilson speaks of: "being called to the law." Being a lawyer is just that - a calling, a profession and not a trade. While we cannot ignore sound business principles in operating a law practice, we betray the privileges and responsibilities that come with our law license if we behave as if we are only in a trade to make money. We must be better than merely profit oriented people. Providing a truly valuable service to our clients and to our profession is more important than the dollars on the bottom line.

The most important service a bar association provides to its members is helping them to become better and better

lawyers through continuing legal educa6

The Arkansas Lawyer

tion. I use this CLE term in the broad sense to include not only educational programs which count for credit toward satisfying MCLE requirements, but anything educational that improves our knowledge and our ability as lawyers such as the legal articles in this magazine, the scholarly Arkansas Law Review and the UALR Law Journal that go to each member of the Arkansas Bar Association, and the handbooks, deskbooks and systems that are written by our members for our members who practice in Arkansas. While the users of these services pay a fee which is essential to providing a part of the funds necessary to operate the Association, the prices to members are generally lower than comparable charges for such information anywhere else.

The opportunity to work with other lawyers to improve our system of justice and our profession is vitally important to a vast number of caring lawyers. The bar provides the structure for recommending improvements in laws, court rules and governmental practices. Our lobbying efforts are regarded by many members as a significant and necessary activity - important not only in what we propose and support directly, but also what we modify to help make bills better and some bills our efforts have stopped. While some lawyers might rather not have to comply and may gripe, deep down all of us know the bar's support which led the Supreme Court to adopt minimum continuing legal education requirements and a comprehensive IOLTA program were proper actions to improve our competence and improve the delivery of legal services to the poor.

The structure provided by the

Summer 1995

bar and its coordination are necessary to produce many public educational activities through publications such as the Senior CilizellS Handbook and the ConslIlIler Law Handbook, plus many of the appearances lawyers make before civic groups in speaking roles. These programs aid lay people to know far more about their rights and about our system of government.

Fostering cordial relations among attorneys is one of the bar's purposes. Bar activities are a place where lawyers can come together as friends and as people united to seek common goals.

In such situations lawyers can put aside the battles they fight in the courtroom and at the negotiating table for their clients. ln their bar role, they can look at the bigger picture of what is good for society rather than their every day role of zealously representing each client.

Even those lawyers who are so busy that they find little time for committee work can at least have a legitimate claim on influencing the leadership of the bar as it initiates and supports irll1ovation, change and improvement if they are inside the tent as members rather than on the outside looking in.

From a dollar standpoint the buying power of groups enables us to obtain many commercial services at a discount and to offer lower prices to men1bers than to non members for services the bar pruvides. Often the value of these savings is greater over the course of a year than the amount paid in dues.

To strengthen our profession all of us must share with those who are not Association members Ollf vision of why we are proud to be lawyers and proud to be bar members.

~ennbership

Services

by Harry Truman Moore

One of the major benefits of your Arkansas Bar Association membership is

tees.

made member services one area of her

Members who travel to Little Rock on

primary goals for this bar year. Robert

in your hands.

business or pleasure trips receive special

M. Cearly Jr. is this year's committee

The Arkallsas Lawyer is an award winning publication dedicated to keeping

rates in the city's two finest hotels - The

chair. If you have suggestions or ideas

Capital and The Excelsior. Just tell them

fro the Committee, call Bob, or me, or

you informed about bar activities and

you're an Arkansas Bar Association

send them to the Bar Center.

substantive areas of the law practice. It,

member and watch your rate quote drop.

respond.

and the Newsbulletill come to you free.

These rates are also available for Pulaski

Ours is not the only professional asso-

Since you are an Arkansas Bar member,

County lawyers who may just want a

ciation that recognizes the importance of

we're probably preaching to the choir in

weekend away from their house - and

membership. A recent newsletter from

promoting membership benefits. But so

office.

the Arkansas Society of CPA's recently

you'll know "what we've done for you

Need a rental car? Your membership

lately," and to give you the information

provides you discounts with both Avis

you need in helping us bring more

and Hertz.

lawyers into the fold, read on.

Other "free" publications you receive

noted: "Dollar-conscious consumers often try cutting expenses anyway they can. But

Two major additional benefits are on the horizon.

We are working on an

things you should not cut, experts warn, are your professional association mem-

are the Arkallsas Law Review from the

agreement with LOIS to provide our

berships.

Fayetteville Law School and the UALR

Association books on CD-ROM. The dis-

weight in golden ideas."

Law !ouYlla[ from the Little Rock campus.

count on these, and other LOIS services,

Your discounts in CLE programs almost cover your annual dues.

could almost cover your yearly dues.

The House of Delegates will receive a

Your association participates in group

proposal in September which would

health, disability, major medical and mal-

allow Arkansas Bar members to partici-

practice insurance programs.

pate in the American Bar Members

Our handbooks and systems - both

ABA materials.

finest in the country. They're prepared

without access to a pension plan, this

by Arkansas lawyers for use by Arkansas

could be a real asset in helping guaranty

lawyers. And as a member, you receive a

a secure future.

Your dues help the bar represent you in our state legislature through work of our lobbyist and legislative support commit-

They could be worth their

There, you have it, choir members.

Even if you can't carry a tune, you can sing the praises of your Arkansas Bar Association.

Retirement Program, even if they are not

loose-leaf and on disk - are some of the

discount on all handbooks and systems.

We will

For the practitioner

And our Lawyer Referral Service is being modernized to benefit both you and the consumers who will use it.

President Carolyn Witherspoon has 7

The Arkansas Lawyer

Summer 1995

Have We Told You Lately That We "Thank" You...Well Lawyers We're "Thanking" You Now

by Judith Gray

Arkansas lawyers, are the most generous,

Rights Brochures and the many other pam-

we can. Soon our Association will be the

selfless, dedicated, hard working, unappreci-

phlets distributed to help Arkansans. You

envy of every state bar in the country when it

ated people in the world. Knowing this makes

bring your leadership skills and your dedica-

is learned that we have our publications

the staff your BIGGEST FANS. When I tell

tion

Bar

available on CD-ROM. Let me remind you

you that you are appreciated for all the things

Association and you give your time and your

that these book, are all written by you and

you do, believe it because you are. If I have

talent to making it run successfully as you

that the amazing technology which allows

failed to thank any of you for something

work through its many committees and ec-

you to pull them up on your computer screen

you've done or for any project on which you

tions. You give your most valuable asset,

was invented by one of you. We don't have

have worked, let me do it now. And, let me

your "time",

to

governing

the

Arkansas

118,384 members and 751 staff people like

thank those of you who have quietly worked

We know that we have to share you

the California Bar. nor do we have 60,000

behind the scenes to make things happen in

because so many 路'We need" caBs come to

members and a 280 person staff as the Texas

the legal profession. YOU are the number

you from the couns, the community, civic

Bar. The Arkansas Bar Association does it all

one priority for everybody here at the Bar

organizations, your church and from ordinary

with 13 of us and 3,965 of you.

Center.

citizens who need professional help. Your

If you think I have a pollyanna view of

You are the ones who: plan all the meetings

inevitable response is "How can I help?" We

lawyers, yOll are wrong. (But if yOll think I

.... speak at the seminars ... write the dreaded

salute you for all the PRO BONO work you

see the best in you, you are right).

course material .. author the articles in The

do.

I recently received a letter illustrating the

Arkansas Lowyer , , , research and write the

Year after year Arkansas bar presidents

flip side of the disciplinary proceeding you

many handbooks or systems which serve oth-

start out by worrying about how to compete

read in every issue of The Arkansas Lawyer.

ers of you so well. You panicipate in the High

with the State Bar of Texas or the California

The letter asked me for a "new CLE form" because the original certificate "was not suit-

School Mock Trial programs which are such

Bar.

a fine experience for hundreds of Arkansas

ing other states and marvel at how much this

Repeatedly they come back from visit-

able for submission". It went on to relate

students. You helped more than 200,000

little Association doe~. Each year we Listen as

ethical dilemma, I invite you to read the let-

Arkansans when you prepared the Senior

they discover the Arkansas Bar Association i

ter on Page 43. I was flattered that he shared the experience with me.

an

Citi:;ens Handbook. The Arkansas Consumer

in the forefront on most issues; that The

GLlide which you produced so well was in

Arkansas Lawyer is one of the finest bar jour-

The best part of my job is thanking you. It's

such demand that it caused Channel 7 and

nals in the country and that the Annual

a part of my every day routine. And, it has

this office to hire extra help to handle mail

Meeting is second to no other state bar's

taken me just a little over twenty-eight years

Veterans

meeting. Not all associations can offer quali-

on the job to realize it. Over these many

Handbook. the Small Claims COLlrt and YOLlr

ty handbooks and systems to its members as

years, I've written hundreds of letters to you

volume.

8

You

prepared

The Arkansas Lawyer

the

Slimmer 1995

thanking you for the dedication you bring to the Association in a myriad of ways. You

have made the Arkansas Bar Association the greatest professional organization you will find anywhere.

MAURICE CATHEY from Paragould Arkansas, was a President of the Arkansas Bar Association. During his year he founded The Arkansas Lawyer. Tbe Maurice Cathey Award was established to honor outstanding

children. He watched the hospital grow from IitUe more than a founding home to a facility ranked 6th in the nation.

HARRY E. MEEK was best known by most lawyers for his work in banking law and in drafting of the state's Corporation and

1have known some of the best of you in my twenty-nine years with Lhe Association. I

contributions to the magazine he loved.

know those of you who make the wheels tum and the Arkansas Bar Association work. I

who referred to himself as a "Middle Plow

Inheritance Codes. He was honored with the outstanding lawyer award. He was the

Buster" was a Methodist minister, served as

founder of tbe Pulaski County Humane

would not dare list even the most outstanding

President of the National Bar Association,

contributions you've made. Instead, I have

Society.

BROOKS HAYS, was the only Arkansas

selected twenty-nine lawyers who are no

and was honored by the Arkansas Bar Association and the Arkansas Bar Foundation

longer with us to represent the many lawyers who have brought honor to this Association.

witb a special Lawyer Humanitarian Award.

THOMAS B. TINNON of Mountain

Some of these lawyers lived long and were

Home was a lawyer who served as President

Convention.

recognized for their achievements.

Several

of the Arkansas Wildlife Federation and was

were considered heirs apparent to the

instrumental in presenting some of the state's first water conservation laws.

WILLIS B. SMITH from Texarkana was President of the Arkansas Bar Association and named its Outstanding Lawyer Citizen in 1980.

ROBERT S. LINDSEY was uniquely honored by the Arkansas Bar Association and the Arkansas Bar Foundation as recipient of both the Outstanding Lawyer and the Outstanding Lawyer Citizen Awards. The Robert S. Lindsey Ethics Foundation is one of his legacies to the profession.

ROXANNE TOMHA VE WILSON was a lawyer and a teacher. As a single parent she attended college and law school while working full time. An Arkansas Bar Foundation Scholarship in her name helps deserving law students who attend school under similar cir-

Presidency of the Association but they were taken before their time. Others were so con-

sumed with just being good lawyers that they didn't have time for the things which would have brought public honors. You are the very best. Be proud.

JOE BARREIT served on the National Conference of Commissions and Unifonn State Laws for more that thirty years. He was one of the principal drafters of the Unifoml Commercial Code. This Jonesboro lawyer's

If. HAROW FLOWERS, a "fiery orator"

WILLIAM R. OVERTON gained world attention in 1982 when he struck down the Arkansas "Creation-Science" Law. As a federal judge be held court in the Arkansas prisons believing it was easier in the long run to move only bimself and one or two other court personnel than numerous prison guards and prisoners to the courthouse.

CHARLES L CARPENTER received tbe C.E. RansickAward for outstanding contribu-

congressional delegate not to sign the Southern Manifesto. As a layman he served as

president of tbe Southern

Baptist

recognition as a public servant in internation-

tions to the profession. He pursued his vision

al law was astonishing. He was a President of the Arkansas Bar Association and in 1960

of making the Arkansas Bar Association an instrument in helping the legal profession

received tbe first Arkansas Bar Foundation

achieve its bigbest ideals. The memorial

Outstanding Lawyer Award.

WILLIAM S. MITCHELL , a Past

award named for him honors outstanding contributions made by a member of the

cumstances.

Plesident of the Arkansas Bar Association,

House of Delegates.

was one of tbe founding fathers of the

BOYCE LOVE Chaired the Young Lawyers Section and was a President of the Arkansas Bar Foundation. He is remembered by many of today's most successful Arkansas

served on the Arkansas Supreme Court continuously for 38 years. He was noted for his

Arkansas Bar Foundation and served as its first president. In 1964, he received the

Outstanding Lawyer-Citizen Award. He served as Cbancellor of the Episcopal Diocese of Arkansas.

EDWARD L WRIGHT was one of two Arkansans to serve as President of the

American Bar Association. He chaired the ABA

committee

which

wrote

the

Plofessional Code of Responsibility. He was a P1esident of the Arkansas Bar Association and honored as a recipient of the Outstanding Lawyer Award. In 1965 Pope Paul VI invested him as a Knight of Malta.

lawyers as a generous mentor who encour-

JUSTICE GEORGE ROSE SMITH

opinions, always succinctly written in clear, declarative sentences, which were always

grammatically perfect.

FRANK C. ELCAN chaired the Young

aged and helped tbem in the development of their trial skills.

Lawyers Section. This young lawyer with a

HERSCHEL H. FRIDAY, was a Past Plesident of the Arkansas Bar Association, a long time Delegate to the ABA and a member of its Board of Governors. He was bonored as outstanding lawyer. The light from the

serving as Plesident of the Arkansas Bar Foundation. A memorial award bearing his

tower erected as a monument to him at

Association House of Delegates. His daughter and son also served in the House of

Arkansas Children's Hospital reminds us that for more than 40 year be was a beacon for the

brilliant future still ahead of him died while

name honors outstanding young lawyers.

OLIVER M. CLEGG from Magnolia served as a member of the Arkansas Bar

Delegates.

9

He founded the Oil and Gas

The Arkansas Lawyer

Summer 1995

Section of the Association which is now

1980.

known

Lawyer.

as

the

Natural

Resources

Law

In 1974 he was named Outstanding

Howard University Law School and chief counsel for the black plaintiff in the 1957

E. CHARLES EICHENBAUM was an

Central High School desegregation case told

avid duck hunter, a fisherman and for 56

the story of how he was accepted for mem-

named

years a practitioner of the law he loved. For

bership in the Arkansas Bar Association the

Outstanding Lawyer by his peers. His com-

more than 20 years he chaired the Federal

year he was admitted to practice, but had his

Section.

VINCENT FOSTER epitomized every lawyer's

ideal

lawyer.

He

was

mencement address to the University of

Legislation and Procedures Committee. The

dues check returned by the Association the

Arkansas' 1993 graduation class articulated

extent of his national connections was so

next year at renewal lime.

be and

great that he was inevitably on top of any fed-

J. L. "BEX" SHA VER from Wynne was

erallegislation which would impact Arkansas

Lieutenant Governor of Arkansas. He was

his vision of what lawyers ought to

provides us an insight into his character.

by his peers as

President of the Arkansas Bar Association in

Arkansas Bar Foundation was the financial

outstanding lawyer citizen and the NCCJ as

1953-54 and honored as a recipient of the

genius behind the financing of the Arkansas

Humanitarian of the Year.

WILEY BRANTON, a former Dean of

Outstanding Lawyer award.

EDWARD LESTER, as President of the

Bar Center and the driving force behind the building of the Arkansas Bar Center.

practitioners. He was honored

He

received the Outstanding Lawyer Award.

J.

WILLIAM

FULBRIGHT,

was a

Rhodes scholar, President of the University

CLE Calendar of Events

of Arkansas at age 34, a Congressman. a U.

HEALTH LAW SEMJNAR

S. Senator, Chair of the Foreign Relations

September 8, 1995 UALR School 01 Law, Little Rock

Committee for fifteen years and an Arkansas Razorback football star.

LEGISLATIVE UPDATE

JUDGE GUY AMSLER was a Supreme Court Justice. He was also a Director of the Arkansas Game and Fish

Commis~ion

and he

started the first state wildlife magazine in the nation.

JOHN L. MCCLELLAN was a U.S. Senator whose name was synonymous with

efforts to combat crime and spearheading the project

known

as

the

Arkansas

River

Navigation System. At age 19 he was the youngest licensed lawyer in the country.

WILBUR D. MILLS a distinguished

September 22, 1995 UALR School 01 Law, Little Rock FIRE AND EXPLOSION SEMINAR

September 29-30, 1995 Lyon College, Batesville AMERICAN BOARD OF TRIAL ADVOCATES ARKANSAS CHAPTER

October 6, 1995 Washington County Courthouse

PUBLIC SECfOR LAW

October 27, 1995 UALR School 01 Law, Little Rock

United States Congressman and longtime

BRIDGtNG THE GAP

chair of the powerful Ways and Means Committee was, at the height of his political

November 1-3, 1995 UALR School 01 Law, Little Rock

career, considered by many as the most pow-

CLE AT SEA CRUISE

erful man in Washington.

In the retirement

years of his life he was the epitome of a "lawyer helping lawyers".

FEDERAL TAX INSTITUTE

LA WSON E. GLOVER, the son of a three term Arkansas congressman and brother of Lhree Arkansas lawyers, was a prominent lawyer who extended his community and

church leadership to Baptist Memorial Hospital, Memphis, and Arkansas Enterprises for the Blind, Little Rock.

CARLETON HARRIS was Chief Justice of the Arkansas Supreme Coun from 1957 to 10

The Arkansas Lawyer

November 4-11, 1995 Departs from Ft. Lauderdale

Summer 1995

December 7-8, 1995 Excelsior Hotel, Little Rock ANNUAL MEETING

June 12-15, 1996 Arlington Hotel, Hot Springs MID-YEAR MEETING

January 25-26, 1996 Peabody Hotel, Memphis

John E. McAllister, P.E. Graduate Electrical Engineer, 34 Years Industrial Experience.

Specialist in Industrial Machine Guarding and Safety. ~

~ ~ ~

~ ~

Born 1921. B. Sc. in Electrical Engineering 1947.

14 Years experience with General Electric Co. in engineering and industrial sales.

11 Years President of company involved with repair and rewinding of electric motors and the manufacture, sales, installation and servicing of electrical control panels for industry.

9 Years President of large distributor specialiZing in the sales, manufacture, installation and servicing of all types of safety equipment for industry with major emphasis on metal forming and stamping.

Registered Professional Engineer in 3 states.

Curriculum vitae and references on request.

John E. McAllister, 9 Sierra Lane, Hot Springs Village, AR 71909-3214 Phooe: (50 I) 922-1709 Fax: (50 I) 922-4177

John T. Bates P.E. 1-800-299-5950 Specializing in reconstruction of accidents on highways, streets, railroads, highway construction zones and parking loIs. All types of vehicles.

Computer graphics and video presentations prepared for exhibits.

Over 39 years' experiellce.

TRAFFIC ACCIDENT RECONSTRUCTION AND EVALUATION OF HIGHWAY DESIGN

Setde your business case before court?

David M. Powell Attorney - Mediator • Over 20 years Commercial, Construction, Real Estate and Franchise transaction, litigation and arbitration experience •American Arbitration Association, Panel of Arbitrators - Since 1978 200 West Capitol. Suite 2200 • Graduate - American Arbitration Association Little Rock, Arkansas 72201 (501) 371-0808 Mediator Training Program fax: (501) 376-9442

Arkansas Bar Association Arkansas Bar Foundation

1995 AWARD RECIPIENTS

J. Thomas Ray

Robert T. Dawson

OUTSTANDING LAWYER The Outstanding wwyer Award is given in recognition of excellence in the practice of law and outstanding contributions to the profession.

OUTSTANDING LAWYER-CITIZEN The Outstanding wwyer-Citizen Award is given in recogni路 tion of outstanding participation in and excellent performanc of civic responsibilities, and for demonstrating high standard: of professional competence and conduct.

In the 25 years the Foundation has named an

outstanding lawyer, no one as young as Tom Ray has ever received this recognition. From graduating summa cum laude at L.S.U., editing the law review at Tulane, clerking for U.s.

District Court Judge G. Thomas Eisele, to being named one of the best commercial trial lawyers in the Country, Tom has met each challenge with perseverance, professionalism and excellence. His exceptional legal talent consistently produces results for those he represents.

Whether it is work for the Association, the Foundation, a client or even his tomato garden, Tom Rays presence guarantees a job well done. For these and many other reasons, the Foundation cites Tom Ray for its 1995 Outstanding Lawyer Award.

12

The Arkansas Lawyer

Summer 1995

Bob's civic activities exemplify the good works lawyers do beyond their profession, doing much to rebuild the image of attorneys as helping, caring, concerned, committed citizens. Bob somehow finds the time to start at the worker level in a wide variety of organizations and emerge as an outstanding leader.

While he has been effective as President of the Arkansas Bar Foundation, Sebastian County Bar Association and Arkansas IOLTA Foundation within the legal community, his efforts beyond are worthy of note. He has served very capably as President of the Fort Smith School Board, President of the Arkansas Alumni Association and Chairperson of the Administrative Board of the First United Methodist Church of Fort Smith. His dedicated involvement in making his city and his state a better place for all its citizens reflects great credit upon lawyers everywhere.

James H. McKenzie

Kyle Parker

C.E. RANSICK AWARD OF EXCELLENCE

LAWYER-PIONEER AWARD

This award is given in recognition of extraordinary service to the legal professioll.

Special awards are given on rare occasions for special achievements.

Recognition by peers for service is as high an honor as anyone can achieve. In addition to being one of the absolute best trial advocates in Arkansas, Jim, throughout his years as a lawyer, has worked tirelessly to improve and serve his profession. Within the Arkansas Bar Association, he has, in a most effective manner, performed the duties of a multitude of offices culminating in his exceedingly successful years as Chair of the Executive Council and as President. Most recently he chaired a study which reorganized and improved the organizational structure of the Association. He has long and productively labored at enhancing the quality of the practice of law through support of continuing legal education and the quality of life in our state through guiding Association legislative activity. Jim is truly dedicated to serving others.

THESE AWAlWS WEl~E GIVEN DURING TIlE

Kyle had a vision of how legal research could be better, easier and less expensive. Refusing to be bound by a printed page mentality, he pioneered better methods of putting legal data into electronic form on disks and set about creating and continually improving even better means for lawyers to locate legal information.

He listens to what lawyers tell him they want and then provides it rather than following the more typical path of a vendor specifying what it will provide. After creating Casebase, he sold it and created an even more useful research tool with LOIS and the PITA search vehicle. Knowing the difficulty of introducing technology, he gave away CD ROM disks to show lawyers his superb product and then sold update services at prices which caused other companies to reduce their prices. Kyle has revolutionized legal research throughout America and made it affordable.

1995

AS,\'UAL MEETING OF

TilL AUKANS,IS BAR ASSOCIATION IN HOT SI'IWVGS, AUKI1NSI1S.

13

The Arkansas Lawyer

Summer 1995

have appeared in The Arkansas Lawyer. During the past year, (in which the quality of his job performance resulted in his being named national outstanding municipal attorney) he still fowld time away from his work as Little Rock City Attorney to plan an issue of the magazine during a change of Communications Division personnel.

Other award recipients included Senator C. Wayne Dowd, Outstanding Legislative Service; Representative Mike Wilson, Outstanding Legislative Service; John P. Gill, Special Award; and Golden Gavels were given to Jolm R. Elrod, W. Dent Gitchel, Ann West, Joyce Bradley Babin and Glenn Pasvogel. Lucinda McDaniel received the Frank Elcan Award and Jack McNulty the Charles L. Carpenter Award.

Thomas M. Carpenter MAURICE CATHEY AWARD This award is given on a merited basis to recognize contributions to The Arkansas Lawyer magazine.

The Arkansas Lawyer is a vastly better publication because of Tom's caring interest and involvement. He has long been a valued advisor to a succession of editors of the magazine.

For years Tom has written some of the most literate, accurate and timely legal articles which

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2241 North Green Acres Road, Fayetteville, AR 72703 (501) 521-3172 or 1-800-400-3172 â&#x20AC;˘ FAX (501) 521-5928 For Information Only - Not A Solicitation 14

The Arkansas Lawyer

Summer 1995

By Jack McNulty

How TO

SUBMIT LEGISLATION TO BE INCLUDED IN

THE ARKANSAS BAR ASSOCIATION LEGISLATIVE PACKAGE

1. Wllo may propose legislatioll to be Spo"sored by tile Arkansas Bar Association ("tlle Association"I' All individual members, sections and committees of the Association are strongly encouraged to propose legislation to be included in the package of bills to be presented to the legislature as sponsored by the Association ("the Legislative Package").

2. In wllat form mllst proposed legislatioll be submitted?

All proposed legislation must be submitted on paper in the form in which it is to be presented to the legislature ("bill form"). Additionally, once proposed legislation has been included in the Legislative Package, it must also be submitted to the lobbyist on computer disc in a form suitable to submit to the Bureau of Legislative Affairs to be used by that agency to type the bill which goes to the Legislature.

3. To wllom is proposed legislation to be submitted?

Proposed legislation recommended by substantive committees or sections should be submitted to the Jurisprudence and Law Reform Committee ('1LRC") at the Association's administrative office at 400 West Markham in Little Rock 72201.

Legislation proposed by individual members should be submitted to the appropriate substantive committee or section at the same address.

4. WIlat information must be submitted witll tile proposed legislation in order for it to be considered by tile /LRC? Consideration by the JLRC is the first step for proposed legislation to be included in the Legislative Package after it has been considered by an Association substantive committee or section. In order for the proposed legislation to be considered by the JLRC, at least the following must be submitted: a. The proposed legislation in "bill form";

b. The source of the proposed legislation (ie. who drafted it?) c. A brief description of the proposed legislation; d. An explanation of the need for the proposed legislation, including how present law would be affected; e. A list of groups which might support the proposed legis-

member of the committee which reviewed and/or proposed the legislation who will be the liaison with the lobbyist.

5. WIlell is tile earliest date proposed legis/ation may be submitted?

No date is too early. Proposed legislation submitted to the JLRC by substantive committees or sections prior to January 15, 1996, will be considered first by the JLRC and may have the best chance of making it into the Legislative Package, thereby possibly providing a reward for those who get their work done early. Legislation proposed by individuals is expected to be submitted to the appropriate substantive committee or section, along with the required accompanying information, in sufficient time for the substantive committee to

lation; f. A list of groups

which might oppose the proposed legislatian;

g. A list, including telephone numbers, of committee members and others who would be available to testify before legislative committees in favor of the proposed legislation;

h. The name and telephone number of the Chair or designated

Senator Wayne Dowd, Senator Mike Beebe, Senator Morrill Harriman and Martha Miller Harriman participate in the ABA's Legislative Program during Allllual Meetillg.

15

The Arkansas Lawyer

Summer 1995

review and submit the proposed legislrltion and all required information to the jLRC.

6. Wllell is tlze latest date proposed legislatioll may be submitted alld be guaranteed to be collsidered for illelusioll in tlze Legislative Package? june 15, 1996. Proposed legislation submitted after june 15,1996 will not be considered by the jLRC unless it receives a two-thirds vote to be considered, with only one exception.

7. Wllat is tlze exceptioll?

Proposed legislation submitted to the jLRC between june 11, 1996, and September 1, 1996, will be considered without requiring a two-thirds vote for consideration, only if submitted with the approval of the President of the Association.

8. WllOt will tlze JLRC do witlz proposed legislatiOll properly submitted to it by jalluary 15, 1996?

Proposed legislation properly submitted (with all necessary accompanying information) to the jLRC by january 15, 1996, will be reviewed by the committee during a time when its work load will permit thorough review and for all unanswered questions to be addressed. It is unlikely that such early proposals will not be recolnmended because of unanswered questions. Although early submission is likely to increase the changes for the proposed legislation to be recommended to be included in the Legislative Package, early submis ion is no guarantee of success.

annual meeting a proposal is submitted, the longer the jLRC members will have to study the proposal before this comments session.

11. Wizat will the jLRC do witlz proposed le!?islatioll properly submitted after JUlie 15, 1996, but before September 1, 1996?

If the late submission of proposed legislation is with the approval of the President of the Association, the JLRC will consider it. However, if a late submission does not have approval of the President, two-thirds of the JLRC mem-

9. WllOt will tlze jLRC do with proposed legislatioll properly submitted to it behveell jalluary 15 olld june 15, 1996?

These proposals will also be reviewed by the comntittee. However, since the committee's report and recomn1endations are due to be submitted in August, 1996, for mailing to members of the Executive Council, less time will be available for unanswered question to be addressed.

10. When can Association members have tlzeir input regarding proposals?

Comments or suggestions from members are welcome at any stage of the process.

Also, during the annual meeting in june, 1996, a specific time will be set aside for comments to be made to the members of the JLRC before their final deliberations.

Of course, the more in advance of the 16

The Arkansas Lawyer

Summer 1995

bers must vote favorably to even consider it. Generally, the merits of late submissions must be clear with few unanswered questions, in order to receive a favorable recommendation from the jLRC.

12. Wlzat will tlze jLRC do witlz proposed legislatioll submitted after September 1, 1996? Proposed legislation submitted after September 1, 1996, will not be considered by the jLRC unless two-thirds of the members vote to consider it.

Continued on Page 38

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YOUNG

LAWYERS

SECTION

REPORT

YLS Does Have a Positive Impact

by Stuart Miller

As the new bar year begins, I am continually reminded of the positive impact

The YLS will continue its efforts to

the program.

For the second year, the YLS will sponsor its mentor

had with its programs and resources for

Fayetteville and Little Rock law schools.

attorneys and the citizens of Arkansas.

This year's mentor program is being

It's not too late to join in and help. A

This year promises to be the same.

expanded to allow first and second year

new pamphlet that will include a list of

students to participate.

The primary

all Arkansas judges, case coordinators,

for members to become involved with

purpose of the YLSjLaw School Mentor

law clerks and courtroom deputies is also

the Bar.

One call to me or another

Program is to provide the law students

in the works by the YLS.

Executive Council member is all it takes.

with an opportunity to interact with YLS

Finally, the YLS is currently planning a

Plans have already begun to totally

members and seek their guidance on var-

social outing which will include a limited

revamp the "Bridging the Gap" seminar

ious issues which they are confronted

amount of CLE exclusively geared for

Among the changes

with during law school and as a new

YLS members. A Committee is in place

lawyer.

and more details will be forthcoming.

for new lawyers.

being considered are to rename the semi-

for

both

cations. This year, "The Guide to Statute

the Young Lawyers Section ("YLS") has

The YLS has numerous opportunities

program

update and produce various legal publiof Limitations" will be updated.

nar, reduce the price of attendance, and

The YLS will once again be responsible

Although the active members of the

shorten the length of the program. Also,

for "The Three Point Attack Program"

YLS is limited in numbers, the participa-

new topics such as "Retaining New

which is conducted in conjunction with

tion by new lawyers is steadily growing.

Clients";

the American Cancer Society.

I hope you will join us.

"Meeting

the

Judiciary";

Three

"Basics of Malpractice Insurance"; and

point baskets by both the Razorbacks

"How to Set up a Firm" are just a few of

and Trojans raised in excess of $40,000.00

the new areas receiving consideration for

in Arkansas.

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The Arkansas Lawyer

Summer 1995

LAW

OFFICE

TECHNOLOGY

The InternetResource for Arkansas Lawyers

by Jacqueline Wright

"Internet, why would I want to do that?"

This comment was made by an Arkansas lawyer a few days ago.

My answer was, 'Why Not?" The Internet is a network of computers that are set up so they can share information, and lawyers have information that they need to share. The Internet makes such wonders as electronic mail, file transfers and the ability to search off-site databases possible and affordable.

In the early years of the Internet only government agencies, defense contractors and large educational institutions had access. Commercial access increased when businesses realized that the Internet would give them a window into both the academic and the government environments. Low cost access to the Internet has recently been made available to individuals through commercial providers. Globally, the Internet has more than 50 million users. Sixty countries have full Internet capability and another 137 may connect with e-mail.

Because there are so many different kinds of computers, a number of protocols were developed so that they could share information. The names of these protocols have been used so much that they often are used as verbs. if you hear someone say they "FrP'd," that means they entered commands on their computer that told the computer to connect to a given location (another computer called the host) and capture a file and bring it back so it can be loaded into their computer (called the client). F.T.P. stands 18

The Arkansas Lawyer

for File Transfer Protocol.

If someone "TeLnets" that means they entered commands on their computer that told it to log into another computer and search its files. One would "TeJ"et" to the Library of Congress, for instance, to search their catalog. lf you E-mail you send an electronic message to someone who has an E-mail address. This is somewhat like a fax message but it may be accessed with a computer wherever you maybe.

So, back to the question, 'Why would I want to do that?"

One might want to FrP a copy of a recent court opinion. United States Supreme Court opinions are available within twenty-four hours of the time they are issued. If you hear on the radio on your way to work that an opinion has come down in a case that is of interest, you can usually obtain it within the hour.

I say, usually because it sometimes takes longer. But they are always available by the next day.

Arkansas legal information is also available on the "NET." Computing services at U.A.L.R. is working with the Bureau of Legislative Research to put the Bills of the Arkansas General Assembly on the Internet. The URL (Uniform Resource Locator) is GOPHER:/ /GOPHERUALREDU. The database currently includes only the original bills, no amendments; and it is not "searchable" except by bill number.

But they are just getting started with this and need some encouragement. The law

Sunm1er 1995

smool in Fayetteville is working to put the Arkansas Supreme Court opinions on their system.

In the mean time, you may need information about pending ÂŁederallegislation.

A good source for this is the Congress itself. Gopher to GOPHERHOUSE.GOV or HTIP:/ /WWW.HOUSE.GOV and you will find the Congressional Record, bills, amendments, House and Senate actions, Committee actions and other information current through yesterday.

You may do subject searches to track legislation. The full text of the house bills are available but full text of senate bills are not. The United States Code is on the menu but I have not been able to get in to look at lhal database to see if it is more current than the CD-ROM that is offered through the United States Govenunent Printing Office for under $40.00.

Other pathways to federal information include the following: The White House offers a document service http://whitehouse.gov Capweb contains a guide to the Congress http://policy.net Foreign law sources may be a real problem for the lawyer who has only occasional use for these materials or who practices some distance from a large law library. The Library of Congress has a number of foreign law specialists on staff. This is reflected in its Internetaccessible databases.

Telnet to LOClS.LOC.GOV, or http://thomas.loe-gov The Library of Congress also

has dial-in ports but they have few of

these; therefore it is very difficult to get a line in. But you can tel.net into their system at any time.

Another reason you might want to use the Internet is to communicate with other lawyers. Questions and announcements may be sent to a number of people at one time. An e-mail discus ion list is a good way to handle these communications. A discussion list is available for Arkansas Lawyers. To join, for those of you who already have this capability, send an Email message to: LISTSERV@LAW.UARK.EDU. Do not put anything in the subject line. In the message part put SUBSCRlBE ARKLAWYERS YOUR-INTERNET-ADDRESS. It will be interesting to see what kind of discussion the Ark-Lawyers list generates. From experience with others, you may expect notices of things for sale, such as law books or office equipment and requests for law books wanted; notices of what the courts are doing; requests for recommendations for expert witnesses and support staff; notices of meetings; personnel problems and office economics problems are other topics that may appear for discussion. The Supreme Court Library contributes information to the list by posting the proceedings of the Arkansas Supreme Court and Court of Appeals shortly after they are released to the public.

Substantive law lists are of interest also. The evidence list has really been busy since the Simpson trial began. The address of that list is: LISTSERVEROCHlCAGOKENT.KENTLAW.EDU. To subscribe send the following message: SUBSCRlBE EVIDENCE YOUR NAME AND INSTITUTION To obtain the addresses of other lists that pertain to law "ftp" to FTP.MIDNlGHT.COM and look in the directory /pub/LegaIList. The file "Iegalist.txt" is a document created by Erik Heels that contains that information. The file may be downloaded using the FTP function.

When you subscribe to an e-mail list you will receive a welcome message that will tell you some things that you need to

know about that list, such as how to unsubscribe. Print it and keep it in a convenient place. I keep a small 3-ring notebook in my desk drawer for this sort of thing. At home I keep an address book next to my computer and write down addresses that I may want to use. When you gain a little expertise in operating the Net you may use "bookmarks" to locate your favorite information sources.

Still not convinced? The Internet presents a whole new way of interacting with colleagues. Have you ever sent a brief to a co-counsel then waited for the telephone call telling you they received it? Briefs can be sent over the Internet instantaneously. Have you ever received a brief over a fax machine and wished you could edit it? Briefs sent over the Internet may be loaded into a word processor.

"But it takes so long to learn how to do all that!"

It takes no longer to learn to access the Internet than it takes to learn how to drive a car.

The most important thing about the Internet, at least to those of us who enjoy thinking about possibilities, is that it creates new opportunities for solving problems that concern larger issues. We are not sure yet just what these opportunities are but the child in us can experiment with this new toy; and by playing will be prepared for life in the future. A librarian noted in a recent Internet message that IIthere is a sense of excitement, awe and wonder about this new technology and what it holds for future library.

This is also true for legal services.

Jacqueline S. Wright, B.A., M.L.I.S., J.D., has beell the Librarian at the Arkallsas Supreme Court for more than fifteen years.

She is ill valved in the creatioll and mallagement of information. She was a delegate to the Arkallsas Governor's COllference on Libraries and Illformation Services, and the White House COllferellce all Libraries and Informatioll Services, both in 1991; The National Conference on State Court Libraries, 1992; and The Chicago ConferelTce on the Future of Federal Governmellt Illformatioll in 1993.

VOICE MAIL AND VOICE MESSAGING SERVlCE By recent endorsement from

the

Arkansas Bar Association, Voice-Tel of Little Rock, Inc. has agreed to a red uced rate for association members for subscription to its voice mail and voice mes-

saging service. This service is available to lawyers from any firm who wish to employ a voice mail system in their practice, but do not want to purchase new telephone equipment or add additional phone lines.

It provides a convenient

and time saving method of communicating with other lawyers on the system.

Benefits of Voice-Tel include: Telephones are always answered Messages do not get lost or misinterpreted because they are in the caller's own voice. Messages may also be retained for future reference.

Voice messaging a1J0ws users to conduct business 24-hours a day without both parties being on the line at the same time.

Voice messaging eliminates interruptions, allowing people to concentrate on the task at hand.

Although incoming

telephone calls can ruin even the best of scheduling, Voice-Tel puts the lawyers back in control. When both parties subscribe to Voice-Tel, the person receiving the message can immediately dictate a reply and send it back to the caller.

Messages can also be transferred from one person to another or circulated like memos, with each listener having the ability to append their own comments.

Voice-Tel users can even send the same

message simultaneously to multiple recipients.

For additional information and a demonstration in your office, contact

Voice-Tel at 225-7000.

19

The Arkansas Lawyer

Summer 1995

t"

set Although violence is an old "family secret," perhaps with the publicity surrounding the icole Simpson/Ronald Goldman murders and the attendant focus on domestic violence, the skeleton is finally out of the doset. Arkansas' lawyers and judges have been dealing with the issue of domestic violence for years, but recently there is a growing public awar~ness of the problem. When

Carolyn Witherspoon took over as President of the Arkansas Bar Association this past June she decided to focus on this issue during her tenure.

Carolyn has proposed that in Spring, 1996 the Arkansa Bar Association join forces with judges, prosecutors, victim advocates, educators, court clerks, law

enforcement officers, physicians, defense counsel and legislators to produce a

Statewide Conference on Domestic Violence. I was privileged to have been asked to head up the plans for this program. The idea is to develop a truly multi-disciplinary forum for addressing these problems.

The purpose of the conference is to prOVide a comprehensive educational program and to help improve long term

community response to victims, children

20

The Arkansas Lawyer

Sununer 1995

and batterers. Participants will be from women have been killed in domestic vio- leadership in a community-wide effort.

Finally, good will for our Bar all twenty-four judicial districts across lence situations since 1989. Four thouthe state. Through the leadership of the sand seven hundred and ninety Order of Association as a group. Lawyers are conBar Association working together with Protection petitions were filed in stantly attacked for not having the public the previously named groups, we hope to Arkansas during fiscal year 1993/94. interest at heart. The Conference on produce a conference that no group alone Research findings suggest that domestic Domestic Violence should demonstrate violence results in more injuries that that lawyers are leaders in addressing could succeed in accomplishing as well.

The Spring Conference will be signifi- required medical treatment than rape, social problems and are committed to cant in many respects. First, in its size auto accidents, and muggings combined. public service. It will take enormous conand composition. Handling a conference An FBI investigation reported that tributions of time from many members of for hundreds of participants over two between 30 & 40% of female homicide the legal profession to successfully comdays and working with the large number victims were killed by their (ex) hus- plete this conference. We hope that all of faculty which will be needed for ple- bands or boyfriends. It is estimated that participants will leave with the firm nary and break-out sessions will be no as many as 21 % pregnant women are belief that the Bar is responsible, caring, small task. The conference would be a being battered. Pregnant women who are and hardworking when it comes to the first in Arkansas to bring so many differ- battered suffer twice as many miscar- interests of the public and specifically, ent disciplines together in an educational riages as non-battered women. During those members of the public who are vicarena and at the same table to discuss the 1991, 50% of all children accompanying tims of this crime.

Domestic violence is certainly not a their mothers to domestic violence shelissue of domestic violence. new issue; it is, unfortunately, an old Second, in its continuity. We hope that ters in Arkansas, had been victims of the conference will further and in some physical and/or sexual abuse. Of these story. What is new is the way we are concases help to establish local task forces to children less than 20% had been identi- fronting and dealing with the subject. No address the problem. It is a major goal of fied by Child Protective Services prior to strangers to confrontation, it seems the planners that the conference have a shelter intake. Men who batter their appropriate that we as lawyers should be female partners are 1500% more likely to leaders in addressing this issue. life beyond the Spring.

Third, the issue. Domestic violence is physically and/or sexually abuse their the leading cause of injury to women in children. These are sobering statistics the United States. Over 300 Arkansas that can only be altered in the future by

Professional Mediation-Arbitration Service is pleased to announce that retired Pulaski County Circuit Court Judge Tom F. Digby, a member of the Judiciary for 24 years, has recently become a member of our Arbitrator/Mediator panel, which serves the state of Arkansas.

Professional Mediation-Arbitration Service Union National Plaza' 124 W. Capitol Ave., Suite 1450 Little Rock, AR 72201 â&#x20AC;˘ (501)375-5151 Frank S. Hamlin â&#x20AC;˘ Legal Director, Attorney-Mediator

21

The Arkansas Lawyer

Summer 1995

President's Profile SERVING FROM WITHIN

c a r o 1Yn

witherspoon By

(Above) Caroly" 011 t1,e stairs ;lIside tl,e Arka1lsas State Capitol.

Stacey

DeW

tt

A woman of many firsts, Carolyn Witherspoon embraces change, often propels it. But, her method is subtle.

She promotes activism from the inside looking out rather than complaining about problems as an outsider looking in. It is that belief that has propelled Carolyn Witherspoon into the position as the first woman President of the Arkansas Bar Association and that belief that wiJl most likely underscore her administration.

Witherspoon credits her philosophy to a college professor who once told her, "if you really want to make a change in the community, become a police officer and make a change from within." It was advice that Witherspoon took to heart. An abundance of energy and tenacity have allowed her to make great strides for women in the legal profession. Just glance at the resume. She is past president of the William R. Overton !rUl of Court, past president of the Pulaski County Bar Association, past president of the Arkansas Association of Women Lawyers, past president of the Advocates for Battered Women, for-

AN ABUNDANCE OF ENERGY AND TENACITY HAVE ALLOWE 22

The Arkansas Lawyer

Summer 1995

(Above L to R) Husband lohn". Carolyn, daughter CntIJeri"e Annbrus:-t, stepdaughter Kimberly Witherspoon and stepsotJ Kevin.

HER TO MAKE GREAT STRIDES FOR WOMEN IN THE LEGAL PROFESSION.

23

The Arkansas Lawyer

Summer 1995

mer comnlissioner of the Arkansas Real Estate Commission, and former chair of the Little Rock Housing AuthClrity Board of Commissioners and that is just a smattering of her leadership positions.

Witherspoon began her legal career in ]978 after graduating from the University of Arkansas School of Law with honors. She worked for seven years in the Little Rock City Attorney's office beginning as an assistant city attorney and also assuming the roles of deputy and acting city attorney during her tenure. In ]985, Witherspoon joined the labor section of the House, Wallace and Jewell firm which split in

] 990. The labor group of House, Wallace, and Jewell merged with McGlinchy, Stafford, Lang where Witherspoon is now a parhler spending most of her time representing public and private employers in defending employment related matters, including Title VII litigation. She also does extensive training in the empl . . yment area for employers.

How does she do it all? When asked, Witherspoon admits that at times her personal life gets shorted. But, in this decade, where naysayers have declared the 80's have it all superwoman a myth, Witherspoon seems to bring some truth to the title. As a wife,

(Above) Showillg off a very large salmoll caught 0" a fishillg trip to the Vrem Fishi"8 Camp i" Alaska.

HER WORK IN THE COMMUNITY IS DRIVEN BY A DESIRE TO CONTRIBUTE

ProfIle Birthplace & Date:

a t

Little Rock, AR, March 29, 1950

Best Advice I Ever Received:

Worst Habit:

Glance

a

Get ill valved ill the community.

Working too much alld eatillg too much c/rocolate.

The Best Thing About Being a Lawyer is: 24

The Arkansas Lawyer

Summer ]995

The opportulrity to serve my clients and my commullity.

mother, and grandrnother, her com-

mitment to the profession is paralleled by her commitment to her family and somehow she and her husband seem to squeeze in time for exotic trips and

a Jot of fun. She is married to John Witherspoon, a real estate salesman specializing in farm and hunting prop-

erty. She has one child, Catherine, age 22 and four stepchildren. Witherspoon has been further blessed with a three year old step granddaughter, Bradley, who lives in California. She has served

as a role model for her stepdaughter, Kimberly, who will follow 1I1 Witherspoon's footsteps, starting the University of Arkansas at Little Rock School of Law in the fall.

In fact, role model, comes to mind when searching for a term to describe Witherspoon. She is the kind of person that younger women attempt to emulate. An avid hunter and fisherwoman, she is an invited member of the "men's

club". Witherspoon tells of a recent fishing trip to Alaska where she and her husband encountered a bear. No

forced bravery there. Witherspoon admits she "lost it" and began screaming like a "woman" in distress. Still,

those brushes with danger don't quell her enthusiasm for the wild. Her dad used to take her fishing as a child and she began hunting when she was dating her husband, John. The two love to

(Above) Carolyn's family gathered for a portrn.it shoot ill tile Arlingtoft Hotel dllri1lg Amlllal Meeting.

(Left) On a reeetJt hutJtillg trip to Botswana, Africa, lol", Witherspooll killed tlJis Cape Buffalo.

hunt big game and came home with some of their best ever after a three

week hunt in Botswana.

Witherspoon admits that she would much rather hunt and fish than work.

So, one can't help but ask why sacrifice what could be more time fishing in

Profile

a t

Glance

a

Grea test Fear:

Now - bears

Favorite Junk Food:

Chocolate

Favorite Recreational Activity:

Most Treasured Possession:

Hfill tillg My family, although I don't really "possess" allY of them.

25

The Arkansas Lawyer

Summer 1995

(Left) Pictltred are Frank and Jane LYOII, author Joe Coaga", Carolyn aud Jolll1 Witllerspootl {Iud professiollal 111m fer Harry Selby.

Alaska or hunting in Africa to spend hours as a volunteer. Witherspoon

says "at the risk of sounding corny," her work in the community is driven

by a desire to contribute. "I believe very strongly that every citizen has an obUgation to make their community

and profeSSion better" says Witherspoon. For Witherspoon, achievement through service is a gender neu-

ONE OF HER GOALS IS TO MAKE THE BAR ASSOCIATION MORE REFLECTNE OF THE COMMUNITY AND TO E COURAGE ALL LAWYERS, PARTICULARLY

ORITIES,

tral issue.

When asked if she set out to become the first woman president of the Bar, she replied, "I didn't set out to be the first woman. I just set out to do a cer-

tain job." She will dedicate her year as bar president to the job of making the Arkansas Bar Association better. Witherspoon believes it is important for

TO GET INVOLVED.

people to see the Bar as something more than an "all white men's club."

One of her goals is to make the Bar

26

The Arkansas Lawyer

Summer 1995

(Above) The Pledge ofAllegiance, IlJith United States Supreme Court Justice Antonin Scalia, during Carolyn's swearing in ceremony.

(Right) Tracy \lrem, owner of Vrem's Fishing Camp in Alaska, and Carolyn show off another great clJtch.

Association more reflective of the community and to encourage all lawyers, particularly minorities, to get involved. "For years, people have been saying there are no doors opening for women in leadership positions in the Arkansas Bar Association. That has now changed," says Witherspoon.

"The Bar has started to open doors to people who have been left out."

Witherspoon's priorities reflect her

Profile

a t

goals. At the top of the list is membership services. The new president has an eye on member recruitment and speaks with such enthusiasm about her own volunteer job that it is hard to reject the membership offer. An admitted "bar junkie," Witherspoon says ''being involved is fun." She says Bar committee work helped her to hone her professional and people skills. " I don't look at it as a huge labor, but as

a

Glance

One Word or Phrase to Sum Me Up:

Greatest Accomplishment:

something enriching. I like going to parties and getting a spa bath," says Witherspoon. While she would like to dispel the Bar's reputation as an exclusive all white men's club, Witherspoon hopes to entice lawyers to join the allinclusive Bar with professional and social programs for members.

One such program is the lawyerreferral service. Witherspoon ranks developing that service as among her

Dedicated and commit fed to my family and my professiolJ

Elecfioll as President of fhe Bar

27

The Arkansas Lawyer

Summer 1995

o

E OF WITHERSPOON'S SPECIAL PROJECTS THIS YEAR

WILL FOCUS ON DOMESTIC VIOLENCE.

(Above) Carolyn (Iud friend Nalley Gregory callght hvo large KillE Salmoll_

top priorities. "It is an absolute necessity to serve citizens of the state and it is important for the members to have

an association that helps them in practice," says Witherspoon. Another way to help members is by being active in the legislative process.

"The Legislation omnlittee is critical" says Witherspoon. Among other issues, she plans to focus this year on the critical "non-partisan election of judges" which failed to pass the House during the last general session of the

Legislature.

Witherspoon is vocal about her dissatisfaction with the

Profile

a t

a

Legislature's failure to pass the barsponsored bill and has already urged Governor Tucker to include the measure in the call for the upcoming special session.

One of Witherspoon's special projects this year will focus on Domestic Violence. She calls it a "pet project" that is close to her heart. As a law student, Witherspoon was a telephone volunteer for the rape crisis center.

Out of that experience a task force was

formed which eventually evolved into the Advocates for Battered Women. As one of the founders of that organiza-

Han, Witherspoon is committed to

addressing the escalating problem of Domestic Violence. She has appointed Sandy Moll to begin work on a Domestic Violence Project which will engage lawyers in a leadership role in helping to deter the problem.

Clearly, Witherspoon's agenda is focused on the membership. Her humility is evident when she says "the Bar Association should be member driven. Presidents come and go but

membership is always going to be there."

This President came to serve.

Glance

I Want People to Remember Me: As an hOliest professional alld a friend

28

The Arkansas Lawyer

Summer 1995

(~\I~, It Pays To Belong T? ~he ,<~.~.,.~~: . . ., Arkansas Bar AssocIatIon PUBLICATIONS A D HANDBOOKS Fortify your library with Publications and Handbooks while you Save your time and your money.

TIlanks to volunteer expertise you Can

purchase the following research tools and publications at considerable savings: Arkansas Form Book Arkansas Domestic Relations System Debtor Creditor Handbook Bankruptcy Handbook Arkansas Probate System Arkansas Trial otebook Arkansas Law Office Manual Elder Law Handbook MEMBER $75.00 NON-MEMBER $100

~

SOURCE OF NEW CLIENTS Call the Lawyer Referral Service. 287 people call the Arkansas Bar Center every month looking for legal representation. These people need qualified legal counsel and they are willing to pay for your help. Members are eligible to join the service. Simply call 1-800-4829406 or 375-4606 and visit with Theresa Dixon, Director of LRS. AFFORDABLE CLE The cornerstone of an attorney's professionalism is lip to date information. The

Association is committed to providing quality and comprehensive CLE et reasonable prices.

MEMBER $165 NON-MEMBER $200.00 (for 9 hours of CLE)

MOVE TO THE FAST-TRACK ON THE INFORMATION H,GHWAY The Associa tion a nnounces a new partnership with (LOIS) that " makes the handbooks and systems available on compact disk. You have this crucial resource available in the most upto-date form possible and at a considerable savings.

MEMBER $90.00 NON-MEMBER $150.00

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INSURANCE Rebsamen (formerly Rather, Beyer and Harper) ha.s represented Association members for the past fifty year offering: Lawyers' Professional Liability Major Medical Disability Income Accident Insurance Group Term Life In-Hospital Indemnity Plan CAFETERIA PLAN If pre-tax dollars interest you, investigate the Cafeteria Plan endorsed by the House of Delegates.

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The Arkansas Lawyer

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The Arkansas Law Review UALR Law Journal The NewsBulletin The Legislative Summary

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ANNUAL MEETING 20% of you attend the Annual Meeting

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29

The Arkansas Lawyer

Summer 1995

Florida Bar V. Went For It, Inc. BY

L u c

.

1

n d a

M c 0 a n

.

1

e 1

Saving Ourselves: How Will Arkansas Lawyers Respond To The Advertising Ban Upheld in Florida Bar V. Went For It, Inc.

The United States Supreme Court in Florida Bar V. Went For It, Inc., decided June 21,1995, upheld the Florida Bar's 30 day ban on attorney solicitation of accident victims and their families for two reasons: (1) intrusive unsolicited contact by lawyers within 30 days of an accident invaded the privacy and tranquility of personal injury victims and their loved ones and (2) this unsought invasion upon private grief by lawyers directly eroded the integrity of the legal profession. The decision, then, protects two elements of society - accident victims and lawyers.

He who helps ill Ihe snvillg of olhers, snves hilllself as wel/.

HorlIllOIlI/ POll Aile, c. 1170 - c. 1215 The Florida Bar completed a two year study of the effects of lawyer advertising on public opinion of the legal profession prior to petitioning the Florida Supreme Court to enact the 30 day ban on solicitation. The Florida Bar commissioned sur-

veys, collected public commentary, and conducted hearings regarding direct mail solicitation. The 106 page summary of that two year study culminated in both statistical and anecdotal evidence that the Florida public views direct mail solic-

reflects poorly upon the legal profession.

Floridians told the Florida Bar of being "appalled and angered by the brazen attempt" of a law firm to solicit him by letter shortly after he was injured and his fiancee killed in an auto accident; finding it "despicable and inexcusable" that a lawyer wrote to his mother three days after his father's funeral; being "astounded" and "very angri' when she received a solicitation following a minor accident; and believing it "beyond comprehension" that he would receive a letter the day of his nephew's funeral. Most graphic was the comment by one citizen who wrote, "I consider the unsolicited contact from you after my child's accident to be of the rankest foml of ambulance chasing and in incredibly poor taste. .... 1 cannot begin to express with my limited vocabulary the utter contempt in which I hold you and your kind."

Armed with extensive credible evidence that solicitation of accident victims in the immediate wake of injury caused demonstrable detrimental effect on both the public and the profession, the Florida Supreme Court imposed the 30 day blackout period as petitioned by the Florida Bar.

itations in the immediate wake of accidents as an intrusion on privacy that

30

The Arkansas Lawyer

Summer 1995

The people's good is Ihe highest low.

Cicero, 106-43 B.C.

The Florida Rule was challenged by Went For It, Inc., a lawyer referral service, and its owner G. Stewart McHenry, who alleged the advertising ban was violative of the First and Fourteenth Amendments to the Constitution.

McHenry routinely sent targeted solicitations to accident victims or their survivors within 30 days of their accidents and alleged that he and his lawyer referral service wished to continue doing so in

the future. McHenry

W[lS

disbarred for

reasons not related to this suit (an action suggestive in itself) and John T. Blakely was substituted in his stead.

Both the federal district court and the Court of Appeals for the Eleventh Circuit held for plaintiffs relying on Bates v. State Bar of Arizona, 433 U.s. 350 (1977).

However, the United States Supreme Court reversed, holding that under the particular circumstances presented the Florida Bar Rule did not violate the First and Fourteenth Amendments.

The Supreme Court first pointed out that lawyer advertising is commercial

speed and this is given only limited First Amendment protection. Quoting Central Hudson Gas & Electric Corp. v.

Public Service Commission of N.Y., 447 U.s. 557 (1980), the Supreme ourt explained that a restriction on commercial speech like that in the Florida Bar

Rule is permissible if the government: (1) asserts a substantial interest in support of its regulation; (2) establishes that the restriction directly and materially advances that interest; and (3) demonstrates that the regulation is narrowly drawn.

The Supreme Court found that the Florida Bar had a substantial interest in both protecting the privacy and tranquility of personal injury victims against invasive conduct by lawyers and in preventing the erosion of confidence in the

profession that such repeated invasions caused, thus prong one of the test was met. The Supreme Court further found that the 30 day ban directly prevented the harm to both the public and the profession caused by immediate solicitation of accident victims, thus prong two of the test was met. The Supreme Court finally found that the ban's brief 30 day scope was well tailored to its objectives of protecting the public during its time of grief and protecting the profession from denigration caused by solicitation during that time.

The Court concluded: We believe that the Florida Bar's 30day restriction on targeted direct-mail solicitation of accident victims and their relatives withstands scrutiny under the three-part Central Hudson test that we have devised for this context. The Bar has substantial interest both in protecting injured Aoridians from invasive conduct by lawyers and in preventing the erosion of confidence in the profession that such repeated invasions have engendered.

The Bar's proferred study, unrebulled by respondents below, provides evidence indimting that the harms it targets are far from i1Jusory. The palliative devised by the Bar to address these harms is narrow both in scope and duration.

The Constitution, in our view, requires noth-

ing more.

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A few strollg illstillctS, alld a few plaill rilles.

William Wordsworth,1770-1850

The Supreme Court pointed out that the States have a compelling interest in the practice of professions within their boundaries and that the States must protectthe public through establishing standards for regulating the practice of those professions. Goldfarth v. Virginia State Bar, 421 U.s. 773 (1975). So how shall the State of Arkansas through the Arkansas

little Rock 501-224-1190

Call for more information. or to schedule an initial consultation.

31

Bentonville 501-271-2237

The Arkansas Llwyer

Summer 1995

Bar Association address the finding of the United States Supreme Court that both the public and the profession are harmed by unsolicited contact from lawyers during the immediate aftermath of personal tragedy?

On March 3, 1993, the Arkansas Bar Association and its Professional Ethics and Grievances Committee petitioned the Supreme Court of Arkansas for revision of the Arkansas Rules of Professional Conduct regarding legal advertising and solicitation. One of the proposed changes is the exact 30 day restriction on solicitation imposed by the Florida bar and sanctioned by the United States Supreme Court. The Arkansas Supreme Court has held the petition in abeyance pending the decision of the United States Supreme Court. ow that the United States Supreme Court has ruled that such restriction on commercial speech is permissible under the framework of Central Hudson, supra, the Arkansas Bar will likely revisit their petition to make sure all necessary documentation is in order. Perhaps the surveys, commentaries, and hearings conducted

in Florida will be performed here in order to determine whether Arkansans need and deserve the personal protection

afforded Floridians, and just as importantly, whether Arkansas lawyers need and deserve the professional protection afforded Florida lawyers. If the results of such study are consistent with that of Florida, the Arkansas Bar Association will likely proceed with full speed to see that the proposed amendments to the Arkansas Rules are enacted.

While the 30 day limitation on solicitation is the current focus of attention, other changes to the Arkansas Rules of Professional Conduct has also been proposed by the Arkansas Bar Association and its Professional Ethics and Grievances Committee: 1. Amend Rule 7.1 by adding section (d) to prohibit advertisements that contain an endorsement or testimoniaL 2. Amend Rule 7.2 (a and b) to delete the reference to and approval of recorded telephone advertisements.

3. Amend Rule 7.2 (d) to include a requirement that all advertisements disclosure the geographic location of the attorney who will actually perform the services.

"Please wait for the beep" is the perfect way to run business off.

4. Amend rule 7.2 by adding section (e) forbidding the use of non-lawyers in advertisements.

5. Amend Rule 7.2 by adding section (0 which requires that any lawyer who advertises must have certain written information available to any potential client.

6. Amend Rule 7.3 (b) to establish the requirements under which direct solicitation by written communication may be made.

7. Amend Rule 7.3 (c) to prohibit written communication with a potential personal injury or wrongful death client until 30 days after the accident.

8. Amend Rule 7.3 (d) to prohibit solicitation if the lawyer reasonably should know that the person solicited is in such a physical, emotional, or mental state that the person could not exercise reasonable judgment in employing a lawyer and to prohibit solicitation when the prospective client is known to already be represen ted.

Immediate Past President of the Arkansas Bar Association, Robert L. Jones, appointed a special committee on lawyer advertising. This committee has been closely monitoring the progress of the Florida Bar case through the appellate courts and will immediately set about to evaluate the decision of the United States Supreme Court and determine how its ruling does and should impact on lawyer advertising in Arkansas. The Committee's charge will be to insure that Arkansas lawyers protect the public from inappropriate solicitation and thereby protect themselves.

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Summer 1995

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Spam Slaps Slander Suit on Muppets

by Vic Fleming

In July [ attended the annual convention of the ational Speakers' Association in Minneapolis. There was fabulous entertainment and motivation aplenty.

Best-selling author Harvey MacKay (Swim with the Sharks), TV motivator Les Brown, and a variety of lesser known professional speakers presented speeches and workshops. [n the professional speaking arena, a topic I have added to my "legal humor" presentation is alternate dispute resolution (J call it "creative problem so[ving" for non-lawyers). The Arkansas Dispute Reso[ution Processes Act of 1993 signaled, I believe, a new era of corporate resolve to resolve conflicts outside the courtroom and away from the courthouse steps. [n Minneapolis I encountered as many as two other attorneys speaking on humor and two speaking on ADR. Fortunately for us, there was a fast breaking news story giving us common ground on which to theorize.

Dateline Minneapolis and hot off the Associated Press wire, this story involved SPAM, which, along with Jello, is Minnesota's state food. That's right, SPAM, which is short for "spiced ham."

SPAM is the pork shoulder product that Hormel Foods sells about a zillion cans of every year. The food spread that gets sculpted into various shapes and sizes each year at the SPAM Festival in Austin, Texas, while vendors sell SPAM-spack-

led clothing, coin banks, and clocks.

Also involved in the story were the Muppets. That's right, the Muppets, which includes Miss Piggy, Kermit the Frog, and others. TI,e Muppets are the [arger-than-Iife TV and movie creatures brought to us by Jim Henson Productions, the company bearing the name of the late Muppet creator. And, is it any wonder that the nature of the story was litigation?

Yes, at the time this column goes to print, there is pending in federal district court in New York a suit in which Hormel claims that an upcoming Muppet movie defames SPAM. Please allow for a brief digression.

Seasoned readers of LLL will recall that ten years ago [ wTOte of embarking on the process of explaining lawsuits to my then five year old daughter, who had just searched several clo ets plus my briefcase in search of a couple of suit she heard I had won.

I turned at the time to the news of the day to assist me in my explanation to

this precocious child. And lo! What to my wondering eyes should appear but an article about an injunction case filed

by McDonald's against a smaller company, whose name now escapes me. To eliminate allegedly confusing similarism (or similar confusion ism) to its McMuffins and McNuggets, McDonald's was asking a federal judge to force a name change on a product known as Quickthaw MeStraw.

After carefully listening to my recitation about that case, my wise-woman daughter said, "Nah! You're being silly, Dad!"

I could not but remember that event with my daughter as I sat there in Minneapolis, reading of Henson Productions' predicament. A character in The Muppets Treasure [sland, a movie slated for release in 1996, is called Spa'am. He is king of a tribe of wild boar hogs. He forces romance on Miss Piggy, naming her Queen Boom-Sha-KaLLL COlltillllen 011 Page 39

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The Arkansas Lawyer

Summer 1995

CLE

DIRECTOR'S

REPORT

High Quality CLE

by Charlotte Morrison

It's simple; lawyers want high quality continuing legal education (CLE) at affordable prices. Providing high quality CLE is one of the principal services offered by the Arkansas Bar Association.

We realize you have a choice and we thank you for choosing us.

Many of our members give generously of their time and talents, and the Arkansas Bar Association produces some of the best, most timely CLE available. Those involved in these programs during the past bar year are listed at the end of this article. We would like to thank them all for their contribution to the education of Arkansas attorneys.

While our primary goal in offering CLE is to provide a service to OUT members, CLE is also critical to the financial success of our bar association. Without steady income from CLE seminars, either bar association services would

need to decrease or membership dues would need to increase. Attendance at many of our seminars has declined. This can be attributed to the increased competition the association faces from other providers. Since our primary goal is high quality education, we commend all those who share our common goaL However, we do ask you, OUT members, to be

aware of the fact that the dollars spent on Arkansas Bar Association CLE are critical to the association and come back to

you in the form of other membership services. Therefore, whenever a choice

34

The Arkansas Lawyer

Summer 1995

exists, we ask you to consider our pro-

grams not only because of their quality but also to support the bar association While we believe we are the best CLE providers, we need to rely on our members to bring to our attention where improvement is needed. Please take advantage of the evaluation at the seminars, or call the CLE department with YOUT conlffients.

Our thanks to these persons involved in LE programs during the past year: Program Pla""ers: Frank Arey Steve Bauman William C. Brazil Paula j. Casey Cathleen V. Compton Stacey DeWitt Donna M. Galchus james Goodhart john T. Hardin" Martha Harriman

james W. Hyden Samuel E. Ledbetter Lucinda McDaniel Sandra Moll Charlene Marsh Robert H. Montgomery Glenn Pasvogel Charles C. Price" Troy A. Price Stanley D. Rauls Linda Shepherd

Ruth Ann Wisener .. planned more than one seminar

Speakers: MID-YEAR MEET' G

H. William Allen, Amy Amundsen, Morris S. Arnold, Ellen B. Brantley, Peggy Carroll, Gregory L. Crow, Wm. Scott Davidson, Brent Davis, Hal Ferrell, john . Fogelman, Paul . Ford, Michael Gans, Harris Gilbert, C. Eric Hance, Eileen W. Harrison, Phil Hicky, janice Holder, Linda Holmes, David N. Laser, Lucinda McDaniel, james G. Mixon, jim Neal, David Newbern, George Perkins, Troy A. Price, Val P. Price, Lyn P. Pruitt, Brian H. Ratcliff, David Renfroe, Richard Clint Saxton, Hank Simmons, Rodney E. Slater, Daniel T. Stidham, Griffin j.

Stockley, AI Thomas, Clyde Turner, George R. Wadley, jr., Eddie H. Walker, jr., Rufus E. Wolff 5TH DISTRICf TRIAL PRACfICE SEMINAR

Laurie A. Bridewell, Cathleen V. Compton, john C. Everett, Alan R. Humphries, David Newbern, john II Purtle, Amanda Nixon White, Teena Lynn White AD L'TEM

Ellen B. Brantley, Vicki S. Cook, junius Bracy Cross, jr., Teresa apper Finkelstein, Lance B. Garner, john R. Lineberger, Dr. Glenn Lowitz, Linda Shepherd, Dr. Cheryl Simon, William R. Wisely

BUSINESS LAW

Paul B. Benham, Ill, Howard W. Brill, John Dipippa, John T. Hardin, Joe Madden, Mary Beth Matthews, Charles C. Price, Heartsill Ragon, Ill, Simmons Smith, Kathryn Taylor FAMILY LAW-DIVORCE TAXATIO

MADE

EASY

Terry L. Mathews, Stanley D. Rauls, Richard Schwartz, Craig Westbrook FINANCIAL INSTITUTIONS

Russell D. Berry, Patrick A. Burrow, Milton opeland, J.W. Green, Jr., Robert Koch, Harry A. Light, Robert C. McKinney, Glenn Pasvogel, C. Randall Sims TRIAL PRACTICE

John C. Everett, Connie Lewis Lensing Paul D. M eill, Elizabeth R. Murray, Samuel A. Perroni, Brian H. Ratcliff, Teresa M. Wineland, Federal Practice, Richard S. Arnold, Harry F. Barnes, Paula J. Casey, icholas M. Gess, Roger Haines, J.L. Hendren, P.K. Holmes, IU, Stephen M. Reasoner, Chief Judge H. Franklin Watt, William R. Wilson, Jr., Henry Woods, Susan Webber Wright REAL ESTATE

Robert D. Avery, W. Christopher Barrier, Kraettli Epperson, Donald S. Goodner, Charlene Marsh, Marian M. McMullan ENVIRO MENTAL LAW

Rodney Baker, John Echeverria, Ann P. Faitz, Allan Gates, Rick Killmar, Samuel E. Ledbetter, Charles R. estrud, Tonie B. Patterson, Walter G. Wright, Jr. BANKRUPTCY

Joyce Bradley Babin, Allen W. Bird 1I, Robert F. Fussell, TImothy W. Grooms, Jill R. Jacoway, Robert Laurence, Glenn Pasvogel, Renee S. Williams WORKERS' COMPENSATION

Dr. James R. Arnold, Andrew L. Blood, Julie B. Bowman, Sheila F. Campbell, John A. Zan Davis, IV, Michael J. Dennis, Michael Ellig, Wendell L. Griffen, William M. Griffen, Ill, Dorothy Jackson, Robert L. Jones nI, Pat Lynch, Linda K. Marshall, Michael R. Mayton, Eugene J. Mazzanti, Robert H. Montgomery, Curtis L. ebben, Kenneth A. Olsen, Joseph H. Purvis, Roland Robinson, Gary R. Shelton, Frederick S. Spencer, Robert D. Trammell, Eddie H. Walker, Jr., Robert White LABOR LAW

Robert Acre, Bruce E. Buchanan, Gail Coleman, Robert Connell, Oscar E. Davis, Jr., John D. Davis, Dr. Bradley Diner, John M.A. Dipippa, Gerard Fleischut, Donna M. Galchus, James M.

Gary, Russell A. Gunter, Melva Harmon, Melissa Hatfield, Eugene Hunt, Nancy Kelley, Katherine Kores, John T. Lavey, JoAnn C. Maxey, Thomas H. McGowan, Theodore McMillian, Thomas Pigford, Spencer F. Robinson, Ray Terry, John Truesdale, Ralph Washington TAX AWARENESS Philip E. Dixon, James F. Dowden, R. Ray Fulmer, II, David M. Graf, Basil Hick, Jr., James W. Hyden, Harry Truman Moore, Craig Westbrook, Kimberly Sue Woodyard BEST OF CLE

Joyce Bradley Babin, Steve Bauman, Cathleen V. Compton, Neil Deininger, Howard B. Eisenberg, Stephen Engstrom, Audrey R. Evans, Clay Farrar, Price C. Gardner, Allan Gates, James F. Goodhart, Ham W. Hashem, Robert H. Holmes, Annabelle Clinton Imber, Michael F. Lax, John C. Lessel, Walter E. May, Bobby McDaniel, Sandra B. Moll, James M. Moody, James eal, Michael C. O'Malley, Clenn Pasvogel, John V. Phelps, Charles C. Price, Christopher T. Rogers, Jerry E. Rose, Dr. Pat Stern, Bill Waddell, Jr., Steve Weaver, Renee S. Williams, Rufus E. Wolff

Arey, Lynn Williams ENVIRONMENTAL BEFORE

THE

LAW:

PRACTICI G

ARKA SAS

POLLUTION

CONTROL & ECOLOGY COMMISSION

Ann Bobo, Mark F. Cooper, Martin Eisele, Michael C. O'Malley, Henry G. Watkins IIJ, Steve Weaver, Gregory L. Yeatman, James Goodhart LEGISLATIVE ADVOCACY: STRATEGIES AND TECHNIQUES

Kay Arnold, Mike Beebe, Joe Bell, John Brummett, Wayne Dowd, Robert M. Eubanks III, Ed Fry, Bill Goodman, Morril Harriman, Bobby L. Hogue, Alice Holcomb, Skip Rutherford, Bob Steel, Mike Wilson, Doug Wood, Stacey DeWitt and Martha Miller Harriman Aboul the Author... Charlotte Morrison is the director of the Continuing Legal Education division of the Arkansas Bar Association. She is a graduate of UALR School of Law and was in private practice before coming to the Bar Association.

5TH D,STRICT TRIAL PRACTICE

Hani Hashem, James M. Moody, James A. Neal, Dennis Shackleford, Gordon Webb ESTATE PLAN I G SEMI AR

Steve Bauman, Clay P. Farrar, Jr., James E. Harris, Raymon B. Harvey, Robert H. Holmes, Michael F. Lax, Thomas L. Overbey, George . Plastiras, Jean D. Stockburger CRIMINAL LAW SEMINAR

Howard Eisenberg, Mike Everett, Jack Gillean, Tom Glaze, Lu Hardin, Jack Lessenberry, Leslie Powell, Sandy Moll 1994 FALL LEGAL REVIEW Joseph R. Farris, Eugene Hunt, Stark Ligon, Frederick W. Morris, Steven W. Quattlebaum, Stephen M. Reasoner, Thomas Strong, H. Franklin Waters, David B. Weinstein, William R. Wilson, Jr., Ruth Ann Wisener 1994 Bridging the Gap Seminar Chris Barrier, David Bogard, Ellen Brantley, Bob Compton, Barry Coplin, John A. Davis, Winslow Drummond, Lisa Ferrell, Wendell Griffen, Will Griffin, Bill Haught, Jack Holt, Price Marshall, Bobby McDaniel, H.T. Moore, Sam Perroni, John V. Phelps, Steve Quattlebaum, James M. Simpson, Leslie Steen, Tom Tullos, Kim Kelley Wiedower, Ruth Ann Wisener, Frank

1996 CLE ETHICS REQUIREME T In accordance with the per curiam order

issued by the Arkansas Supreme Court, it is now mandatory that Arkansas

attorneys attend one hour of ethics as part of the existing 12 hour per year CLE requirement.

Attorneys are still

only required to attend 12 hours total, but now one of tho e hours must be ethics. The order gives attorneys from June of 1994 to June of 1996, to acquire the initial hour of ethics.

If you are

unclear on the ethics requirement, the Office of Professional Programs encourages you to call their office for an explanation, 374-1855.

35

The Arkansas Lawyer

Summer 1995

LAWYER

REFERRAL

SERVICE

Benefiting the Public through the LRS

by Ann West

Lawyer Referral Service (LRS) was established by the Arkansas Bar Association in the late 1960s to put consurners of legal services in tOllch with qualified attorneys who pay an annual fee to belong to the service.

Presently 273 attorneys throughout the state belong to LRS. Lawyer Referral Service benefits the public because adequate legal service is made more readily available. The legal profession benefits through improvement of its image, and participating attorneys gain a new source

of clients.

Callers contact LRS for various reasons. Often potential clients are reluctant to contact an attorney because they do not know if they have a genuine legal problem, or are not sure if they can afford the services of an attorney. Frequently callers have no idea how to choose a lawyer. LRS is also contacted for referrals by attorneys and potential clients from all over the United States who need local

250 to 300 calls a week on both its local and toll-free lines from all over Arkansas and the United States. Two-thirds of

Referral Service pay an annual fee in the amount of $50 a year. Ln June, 1995, the House of Delegates approved the imple-

these calls result in referrals.

mentation of a referral fee system which

To use the service a potential client calls the LRS number and is referred to an attorney in the city or county where the caller lives or where a case is scheduled to be heard. Lawyer Referral Service is advertised in the yellow pages of telephone directories throughout the state.

Last year, with the assistance of a Bar Foundation grant, placards with information about LRS were printed and distributed to courthouses and libraries statewide.

To join LRS an attorney must practice

will be put in place at some time in the near future. Under the referral or forwarding fee system attorneys who get the greatest benefits from the service will be asked to contribute the most for its support. Member attorneys will be asked to remit to the Service ten percent of any attorney fee collected in excess of $500.

Referral fees will be used to publicize and generally improve LRS through the use of public service announcements, increased advertising, and the distribution of brochures. Remittance of referral fees would allow LRS to increase its hours of service and hire additional staff to answer calls.

Issues which the Lawyer Referral Service Committee members face in the next few months, in addition to the implementation of a referral fee system, include revision of the LRS application form, updating the areas of practice from which referrals are made, drafting model rules to govern LRS, and the considera-

Jaw full time in ArkanSc:"1s, have certain

vice. This appropriation allowed LRS to hire a full-time director, Theresa Dixon, install a dedicated telephone line, and

minimum qualifications, carry malpractice insurance in the amount of $100,000\5300,000, be in good standing, and not subject to reprimand or disciplinary action. Member attorneys agree to give clients referred by the Service an initial one-half hour consultation for a fee not to exceed $25. Charges for further services are set by agreement between the attorney and the client. Member attorneys choose the area or areas of law in which they wish to receive referrals by checking the appropriate sections of the

com puterize.

application or renewal form.

representation in Arkansas.

In May, 1994, the Arkansas Bar Association appropriated $30,000 in seed money to revamp and revitalize the ser-

Lawyer Referral Service receives from 36

The Arkansas Lawyer

Summer 1995

Attorneys who belong to the Lawyer

tion of alternative dispute resolution as a

means to handle conflicts which might arise.

Returning committee melnbers include

Don Hollingsworth and Drake Mann of

Little Rock, Tarnra Cochran from Rogers, Lamar Pettus and Dick Wommack from Fayetteville, Judy De Simone from Pine Bluff, and Brian Ratcliff from El Dorado.

New committee members are Anne SmHh and Roland Darrow, II. from Little Rock, Steven Davis from North Little Rock, Bryan Reis from Hot Springs, and Joe Wray from Hamburg. Former committee members whose contributions were invaluable to the revitalization of LRS include Michael Crawford, Kirby Mouser, and Steve Quattlebaum. The committee chair is Ann West.

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37

The Arkansas Lawyer

Summer 1995

Legislatioll Q & A COlltilllled frOIll Page 16

Sta ff Profile WHO TO CALL

13. Wllat lIappells 10 tile reCOllllllelldatiollS of

tile JLRC? The recommendations of the JLRC are made to the Executive Council which formulated recommendations to the House of Delegates.

14. Wllell does tile HOllse of Delegates COIIsider tile reCOllllllelldatiollS of Ihe JLRC alld tile Execlltive COllI/cil to illitially select tile proposed legislatioll to be illclllded ill the Legislative Package?

In the Fall of 1996.

15. How lIIallY itellls of proposed legislatioll lIIay 1I0rlllally be illclllded ill tile Legislative Package?

Up to ten.

What vote of tile HOllse of Delegates is reqllired ill order for proposed legislatioll to be part of the Legislative Package?

The bylaws provide that in order for a bill to become part of the package, it must receive an affirmative vote of twothirds of the member of the House of Delegates present and voting at either a 16.

ON?

Legislative Package.

17. May tile Legislative Package colltaill 1II0re tl,ell 10 bills?

Yes. Under limited circumstances up to three additional bills may be added to a ten bill package upon the affirmative vote of three-fourths of the members of the House of Delegates present and voting. lB. If proposed legislatioll is 1I0t illclzlded ill Ille Legislatit'e Package. will it be opposed by Ihe Associatioll? ot necessarily. If proposed legislation receives the affirmative vote of at least a majority but less than two-thirds of the members of the House of Delegates, it will not be included in the Legislative Package, but the lobbyist will report it as approved by the Association.

19.

Why is the 1I11111ber of bills ill tile Associatioll Package lzlllited?

Experience has shown the Lobbyist cannot give the individual, detailed attention needed to more than 10 bills.

regular session or a special session called for the purpose of considering the

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38

The Arkansas Lawyer

Summer 1995

LLL COIl/illlled froll1 Page 33 L:1-Ka-La-Ka. For unspecified reasons,

he sentences Kermit the Frog to an unspecified "terrible fate."

This attitude on Spa'am's part led Hormel to sue for an unspecified amount

of damages. Hormel alleges that Spa'am

February, and Miss Piggy and Kermit could emerge as Hormel spokespersons.

Maybe even they'll parhler up to form a chain of fast food outlets, selling Muppet McSPAMburgers. Thus forcing McDonalds back into the picture.

Am I being silly?

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Vic Fleming is a

lawyer, a mediator, and a professional

speaker from Little Rock. Mail, call or FAX him your true stories about humorous occurances in business, politics, and law - 3801 TCBY Tower, Little Rock, AR 72201; (501) 376-3800 / FAX 372-3359.

is an "unsavory-appearing feral pig,"

"evil in porcine form," the likes of which would certainly bring a terrible fate to SPAM in terms of supermarket sales.

I called my now fifteen year-old and told her that Hormel was asking a federal judge to force a name change on a character in a Muppet movie. This once

naive princess responded, "Do they have a shot at treble damages under the Lanham Act?"

DEFENSE TRIAL LAWYER Mid-sized Northeast Arkansas defense firm is seeking trial lawyer with at least 2 to 5 years experience. Salary commensurate with experience and ability. Jury trial experience is required. Responses strictly confidential. Send resume to NEARK, c/o Arkansas Bar Association, Attn. Sara Landis, 400 West Markham, Little Rock, AR 72201.

Meanwhile, the other professional speaking lawyers and I were brainstorming how this case could illustrate the per-

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DISPUTE RESOLUTION THROUGH SETTLEMENT PRACTICE LIMITED TO LITIGATED MATTERS 39

The Arkansas Lawyer

Summer 1995

â&#x20AC;˘

DISCIPLINARY

ACTIONSI

JOHN SKYLAR TAPP

never responded nor did he ever refile the action.

Through Tapp's affidavit of response and testimony at the hearing, he explained the difficulties encountered in finding a qualified expert to give both an opinion regarding malpractice and testi-

john Skylar Tapp , of Hot Springs, was issued a letter of reprimand for violation

of Model Rules 1.3, 1.4(a) and 1.4(b) as a result of a complaint filed by Vickie I-ledges.

The affidavit of fact supplied by Ms. Hedges involved the circumstances surrounding the death of her twenty (20) year old daughter, Sherry Nicole Medlin, on September 19, 1987. Ms. Medlin was admitted to Hot Spring County Memorial Hospital where she was hospitalized for three (3) days. Following her release on September 17, she was readmitted on September 18 and, pursuant to the orders of her physician, Ms. Medlin was transferred to University Hospital in Little Rock. She died of cardiopulmonary arrest shortly after her arrival.

Ms. Hedges averred that on September 30,1987, she hired Tapp to pursue a malpractice claim against the treating physician. Although she called Tapp's office several times a month, he did not file any pleadings until ovember 22, 1989, when a Petition For Appointment of

ADVISORY

Tapp stated, had been previously explained to both Ms. Hedges and her son. Without having found an expert willing to testify, Tapp filed the complaint on ovember 22, 1989. Tapp testified that the reasons for the delay were the need to gather medical records, the need to secure an expert witness and the

Mrs. Winston with a check in the amount

Motion

For

Summary

judgment. Tapp stated further that neither Ms. Hedges nor her son ever complained to him about the length of time that had passed. In October 1991, the Defendant filed a Motion For Summary judgment and Tapp testified that he did discuss this with Ms. Hedges and the decision to take a non uit was made with

With A ause of Action were filed. The

mer or early fall of 1992, he specifically advised Ms. Hedges' son of this problem, but added that he would refile the law-

that Tapp told her in April of 1991 that everything was fine and it was only a

suit in hopes of obtaining a settlement.

matter of time before a court date would

Tapp denied that he was unable to be reached and that Ms. I ledges did not know the case had been refiled. In fact, Tapp stated that Ms. Hedges knew that if he was unable to find an expert then he would not be able to have the defendant served. Subsequently, on April 2, 1993, the case, Tapp averred, was dismissed and Ms. Hedges was informed of the dismissal. Tapp's testimony, when ques-

be set. Following that, Ms. Hedges experienced difficulties contacting Tapp.

When her son checked the Circuit Clerk's records in August of 1992, Ms. Hedges learned that Tapp had filed a Motion To Dismiss For onsuit which was granted on ovember 13, 1991. She was neither consulted nor informed of this development and was unable to contact Tapp about it. Her son sent Tapp a letter

of Model Rules 1.15(b) and 8.4(d) upon the complaint of Mary Winston.

In january 1992, ationwide Insurance Company provided a settlement check in the amount of $17,000. Upon receipt of the settlement check, jones provided of $5,000 and Mr. Winston with a check in the amount of $869.74. A settlement

a

Administration and a Petition To Proceed Petitions were granted and also stated

Marquis E. jones, of Little Rock, was issued a letter of reprimand for violation

necessity of having evidence sufficient to

testimony. He averred that in late sum-

Letters

MARQUIS E. JONES

overcome

of

Representative,

option of consulting with other counsel.

Finally, he denied all alleged violations of the Model Rules of Professional Conduct.

mony at a trial. The need for an expert,

her knowledge and consent. In the year that followed, Tapp testified that he consulted with at least six (6) physicians who were unable to provide the needed

Personal

OPINIONS

statement was thereafter provided to

Mrs. Winston on March 10, 1992. Thesettlement statement evidenced $7,452.55, having been retained by jones to pay medical expenses as listed on the settlement statement. Mrs. Winston's affidavit

of complaint was executed on December 16, 1993. As of that date, many of the medical bills were still unpaid.

Information provided by Collection Services, Inc., and included in Mrs.

Winston's affidavit, related a $200 payment on the Radiology Associates bill on April 2, 1993, in the form of a check which

was returned

for insufficient

funds. In her testimony on May 19, 1995, Mrs. Winston testified that all medical providers had now been paid the amounts shown on the settlement state-

ment. Mrs. Winston testified that jones had returned to her $1,083.83, the amount owed to Dr. Baker, 51,443, the amount owed to Dr. Hayde, and 5500 to reimburse her the various amowlts she

tioned, was that he never advised his

had to pay the medical providers to prevent being sued. Mrs. Winston testified that the $500 amount and the $1,083.83

inquiring whether he intended to refile

client of his inability to find an expert so

amounl were returned to her in Februnry

within the time limitation, but Tapp

that she was aware that she had the

1994, near to the lime she requested that

~o

The Arkansas Lawyer

Summer 1995

DISCIPLINARY her complaint be withdrawn. Mrs. Winston also testified that she received the $1,443 during May 1994. In addition, Mrs. Winston stated part of these funds were returned to her by check and some in cash.

jones testified that in an effort to negotiate with the medical providers on the amounts owed to them, he was not as

prompt as he should have been in providing payment. Jones admitted error in how this matter was handled. jones also testified that part of the problem was poor bookkeeping methods, but that this problem had been solved because he had implemented a system to avoid the recurrence of this type of situation.

In his testimony, jones offered an apology to the Committee for not promptly delivering information requested by it.

Once again, jones testified that part of

ACTIONS!

ADVISORY

did not appear to be any sequential break in the individual check numbers prior to and for several months subsequent to the burglary. Further, jones was unable to offer a plaUSible explanation for the absence of a bank debit for new checks on back statements subsequent to the burglary. At the close of the evidence, the Chairman informed jones that the bank would be contacted to determine specifically if new or replacement checks were ordered for his bank account after the date of the burglary. At that point jones stated that he had been untruthful with the Committee. jones admitted that his bank records, bank account statements and checks had not been stolen in a burglary.

he found missing were his bank records,

MARQUIS E. JONES

Thereafter, the Committee subpoena

power

and

obtained additional records from his bank. Copies of the additional documents were made availabl to jones by the Committee.

During questioning

Jones averred that new set of replacement checks were ordered frol11 the bank by him following the burglary. jones was unable to satisfactorily explain why there

tional time because Ms. Henderson's

records had been destroyed in a house fire. During the hearing, Ms. Henderson admitted taking the Estate funds. jones also told the Court that Ms. Henderson had provided funds to him to replace the ones she had taken and the Court informed jones that he should have reported the unauthorized withdrawals as soon as he got notice of them. In addi-

check which was written to En1manuel

provision of Section 7B, Proced ures of the Arkansas Supreme Court Regulating Professional Conduct of Attorneys at L.,W. This request was made based upon jones providing false testimony under oath to them at two separate hearings.

its

ing on or before july 14, 1993, but he did not.

At the status hearing, jones informed the Court that he needed addi-

the Committee informed jones that they would seek the have the Supreme Court hold him in contempt pursuant to the

invoked

Court that jones was to file an account-

tion to this infonnation, the COD1mittee

the reason certain information was not

Cornmittee.

first part of 1992. The Court set the matter for a status hearing during july 1993 since the last pleading had been filed on April 9, 1992. It was also directed by the

In addition to the reprimand issued l

forthcoming was based on his checks and cancelled checks having been stolen in a burglary which occurred on September 26, 1993. jones previously had submitted to the Committee a copy of a police report reflecting a burglary of the office building in which he maintained his law office. Jones said that the only property including the checkbooks then in use. At the insistence of the Committee, jones provided copies of certain records and cancelled checks which he obtained from his bank. However, the documents provided did not fully comply with the scope and extent of the request of the

OPINIONS

was informed of a $300 trust account Wright and returned for insufficient funds. During the Court hearing, jones acknowledged that he knew it was wrong to send funds to Emmanual without Court authority but it was an emer-

gency.

In Jones' response, and during his testimony at the hearing on May 19, 1995, jones stated that it was Ms. Henderson who was taking the funds without

authorization. jones also acknowledged that had he been more careful, he would have become aware of this as it happened. jones stated that he would take appropriate steps to avoid anything like

Upon the Complaint By A judicial Officer, Marquis E. Jones, of Little Rock, was suspended for a period of three months for violation of Model Rules 1.2(d), 1.15(b), 8.4(c) and 8.4(d).

The Complaint by a judicial Officer involved the Estate of Barbara j.

drawals, Ms. Henderson began to avoid

Robinson.

him because he advised her that she

Lorene Henderson, sister of

this happening again.

In his written

response, jones asserted that when he learned

of

the

unauthorized

with-

Barbara j. Robinson, was appointed Administratrix of the Estate, on june 19, 1991, based upon the Petition prepared by jones. The only heir of the Estate was

any knowledge of Ms. Henderson's

Ms. Robinson's minor son

action, and, a positive assertion that he

l

En1manuel

would have to inform the Court of her actions.

Both jones' written response,

and his testimony, contained a denial of

Wright. Various matters were settled on

was never involved in taking hinds from

behalf of the Estate during 1991 and the

the Estate.

41

The Arkansas Lawyer

Summer 1995

DISCIPLINARY ADVISORY OPINION 95-01 Date: June 1, 1995

ACTIONSI

ADVISORY

Since July 1, 1975 the Arkansas Bar Association has operated a Lawyer Referral Service. An attorney licensed in Arkansas, who is a member of the Association and who is engaged in the full time private practice of law, may join the service upon payment of an annual fee of $50 and upon promise to abide by the rules of the Service. The attorney is required to carry a specified amount of malpractice insurance. Upon an inquiry from a prospective client, the Bar Association directs the client to a member of the panel, upon a rotating basis, limited solely by the geographical area and any self-designated restrictions upon areas of practice. The attorney agrees to charge the client $25 for a 30 minute initial interview. Subsequent to that interview, any fee arrangements are based entirely on contract negotiations between attorney and client.

The issue presented to this committee is whether the Arkansas Bar Association may, as a part of its regulations and corollary agreement with participating attorneys, require that a portion of the legal fee earned by the attorney be paid to the Lawyer Referral Service of the Arkansas Bar Association.

The governing language is found in two provisions of the Arkansas Rules of Professional Conduct, effective January 1, 1986. Rule 5.4(a) says that a lawyer shall not share legal fees with a nonlawyer, with certain narrow exceptions not applicable here. As the Comment points out, this restriction is to protect the lawyer's professional independence of judgment. A provision more on point is Rule 7.2(c): "A lawyer shall not give anything of value to a person for recommending the lawyer's services, except that a lawyer may pay . . . the usual charge of a non-for-profit lawyer referral service or other legal service organi-

with a nonlawyer are not present when a lawyer pays the usual charges of a lawyer referral service.

However, these rules do not specifically address the issue of whether the usual charge can be a percentage of the fee earned. When the rules were adopted, the usual charge was an annual fee to the Bar Association.

At least one appellate decision discusses Emmolls lJ. Slale Bar of Califomia, 6 Cal. App.3d 565, 86 Cal. Rptr. 367 (1970) concluded it was not improper for a local bar association to charge a panel attorney a one-third referral fee. oting wide differences in motivation, technique and social impact, the court distinguished sharing a portion of a fee with a lawyer referral service and sharing a portion with a nonlawyer. The California court incidentally noted that although that particular local bar association had charged a one-third fee, a fee of 10 percent was more typical in the state.

As early as 1956, the American Bar Association issued Formal Opinion 291 indicating that attorneys participating in a LRS panel could be required to contribute "to the expense of operating it by a reasonable registration charge or by a reasonable percentage of fees collected by them."

The same conclusion has been reached

by Connecticut Bar Association, Informal Opinion 87-9; District of Columbia Bar Opinion 201; Chicago, Illinois Opinion 87-1; Kentucky Bar Association Opinion E-284; Maine 93-133; Maryland Bar Opinion 82-35; Michigan Bar Association Opinion (1989) R1-32; Ohio Opinion 92-1; Tennessee State Bar Opinion 88-F-115; Wisconsin State Bar Formal Opinion E88-8. One estimate is that approximately 40% of the referral services are funded in whole or in part by percentage charges.

See Michael Franck, "Percentage Fee: Available and Ethical", Lawyer Referral etwork of the American Bar Associa tion (Spring 1993).

Based on the above policies and opinions, we conclude that the Lawyer Referral Service of the Bar Association

zation." Both of these provisions were

can require that a participating attorney

adopted by the Supreme Court more than a decade after the Bar Association implemented the Lawyer Referral Service. These rules recognize that the dangers present when sharing a legal fee

pay, as a charge for the service, a percentage of the fees produced by the clients who have been directed to the attorney by the LRS. The increase in revenue produced for the Bar Association will help

SUBJECT: Sharing Fees with Lawyer Referral Service

42

The Arkansas Lawyer

the

Summer 1995

OPINIONS

maintain this public service.

Even assuming that the charge paid to the LRS can be a percentage of the fee earned, other questions remain. Should the percentage be in addition to the annual fee or instead of the annual fee?

What is a fair percentage to be assessed by the LRS? Should the percentage charge become applicable only after the fees exceed a minimum floor? Should there be a maximum amount in dollars that can be charged, either per client or per year?

Should an escalating scale be used so that the percentage to be charged changes as the fee changes? Are the charges that are produced to be used only by the Lawyer Referral Service, or can they be applied to the general purposes of the Bar Association?

This committee has not been asked to address these issues, which are left to the good judgment and discretion of the Lawyer Referral Service Committee. A brief survey of plans adopted by bar associations across the country reveals a variety of responses and approaches to such issues.

However, on one corollary point, the rules, or at least the policy of the rules, do seem clear. A lawyer should not be permitted to charge a client a higher fee simply because a percentage of it will be paid to the Arkansas Bar Association.

Such an increase beyond a reasonable fee is inconsistent with the policy embodied in the rules on sharing fees between law firms. See Ark. R. Prof. Condo 1.5(e). See also State Bar of California Formal Opinion 1983-70; ew York State Bar Association 93-651.

NOTICE "This is all opillioll ollly of Ihe Arknllsas Bar Associatioll which is a voJrmtary assarialioll of attomeys licellsed to practice ill the State of Arkallsas, alld re/iallce Ihereoll is lJOIIlIltary and reliroes any Association member

[r01ll liability for tire colllellt Irereof. This opillioll is illlellded to be tire Associalioll's besl illterpretatioll of lire Model Rilles of Professiollal COlldllct as prollllllgaled by Ihe SlIprellle COllrt of Arkallsas as tlmt code applies to the writ/ell facts presellted to the Committee. "

By Howard W. Brill Reporter for Professional Ethics and Grievances Committee

DISCIPLIN

IONSI

AD

PINIONS

Judith Gray) that was ~;;;tere fr째fm a letter (written to Ass"IS tant Executive Director erence to on Page 9.

oear Judith: would you please send me a "Certificate of Attendance for AttOrneys" so that I maY claim my CLE hours. I messed up my original certificate to the extent it is not suitable for submission.

I came uncomfortablY close to claiming CLE credits for sessions I hadn't attended. I've never done that, but this has been a tough year, and I didn't accumulate as many CLE creditS during the year as I normally do. Rather than attend the "Best of CLE" to make up the difference, I was sorely temPted to claim a few CLE loans from the Arkansas Bar meeting to which I wasn't entitled. I went so far as to fill out the certificate claiming the unearned credits. I don't knoW if I would have actually mailed the certificate, but tWO things happened which reminded me of my obligation and duty.

Firstly, I read the reminder of Rule 8.4 lcl printed toward the bottom of the certificate. I knew that if I claimed the unearned hours, I'd be the only one to know. There would be no way to prove I hadn't attended- it would be an eaSY scam, and a most convenient one at that. Yet I hesitated. I even went SO far as to reRule 8.4 lcl. lyes, I've actually read the model rules, but it sure doesn't hurt to re-r them now and again!) Still, I thought what'S the real read ead and it really would make things easier for me. At this harm, who will be hurt,

point, I think providence stepped in to save me.

As I waS going through my files to double check just hoW many CLE hours I needed, I ran across the info I'd filed for Michael Josephson's Institute on EthicS. As I thumbed throUgh that material, several of the pointS Mr. Josephson had made when he addressed the Annual Meeting returned to me. (When was that-90,91 ?)

"HOW many lies does someone have to tell before he is liar?" Ethical conduct or character _ is doing the right thing even when yOU're the only one whO knows yOU choose right over wrong.Josephson alsO talked about hoW once you choose to do the wrong thing, it becomes easier and easier to do it again .. ' then again ... then again, until yOU've gone from a pattern of ethical conduct to a pattern of unethical conduct.

These pointS made me think about the wonderful commencement address that Vince Foster gave at university of Arkansas at Fayetteville'S LaW School a couple of years ago, in which he talked about ethics. Further reflection led me to consider webb Hubbell and what his thoughtS must have been similar to mine. No one will know but me, whO really getS hurt?, it will make things so much easier for me. etc. I decided I just could not do it - it waS wrong. I knew it waS wrong, Finally, and I'd known it was wrong from the beginning. However. I'd needed a reminder to stand fast.

I write this not to pat myself on the back (though I know it must sound that way). but to give yOU a concrete example of hoW wise it was to cite Rule 8.4 (c) on the certificate and hoW important CLE sessions on ethiCS can be. Maybe you can't "legislate" ethical conduct, but ethicS sessions can (and in this case

did) help thOse who wish to do right, I guess this all goes to demonstrate my support for mandatory Ethics CLE. Also, let'S get Josephson back, preferablY for a full daY's session. I'm proof that frequent reminders of and discussions about one'S ethical obligations payoff.

Thanks again.

43

The Arkansas La wyer

Summer 1995

In

Memoriam

Blade.

During World War II, Smith was First

ARTHUR LAWS SMITH, JR. Arthur Laws Smith, Jr. died in July at his home in West Memphis, AR. Smith was the valedictorian of Siloam Springs High School class of 1935. He then attended the University of Arkansas and the University of Arkansas Law School. At the University he was a member of Sigma Alpha Epsilon, Phi Alpha Delta, Phi Eta Sigma, and Scabbard and

Arkansas

Bar

Assacia tion,

East

Arkansas

Bar

Association, Crittenden County Bar

After the war he became the Captain in

Association, American Trial Lawyers

the Organized Reserve Corps. He served

Association and was a member of the

as the City Attorney of Siloam Springs,

First United Methodist Church of West

AR;

Memphis.

the

Secretary-Treasurer

and

President of the Crittenden County Bar Association; the Deputy City Attorney of West Memphis and the Treasurer of the

JAMES WILEY CALDWELL

Humane Society of Eastern Arkansas.

He was a member of the American Bar

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Caldwell was born December 14, 1923, in Arkadelphia, Arkansas. He attended Ohio State University and Ouachita Baptist University, and was graduated from the latter institution in 1947 with a Bachelor of Arts Degree. Caldwell attended the University of Texas School of Law, and was graduated with the Doctor of Jurisprudence with Honors in 1950, where he was awarded the Order of the Coif.

Cald well was a member of the Houston Bar Association, State Bar of Texas,

American

Bar

Association,

ational Association of Bond Lawyers, Public Securities Association and Phi

Alpha Delta Legal Fraternity.

Caldwell is survived by his wife, Marie,

and

three

children,

Susan,

Carolyn and James Jr., and nine grand-

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Summer 1995

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