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(l1996 W",t 1'\.obI,!h""9 6-9.!85-8/5-96 16365971 1-230-979-4

Editor's Report


Getting Credit for Giving a Damn

Arkansas Bar Association Phone: (501) 375-4606 Fax: (501) 375-4901 Homepage: E-Mail arkbar®

ARKANSAS BAR ASSOCIATION 400 W. Markham little Rock, Arkansas 72201 EDITOR


Sara Lalldis EDITORIAL BOARD Thomas M. Carpenter Susan Goldner Sarah James

AI Schay

OFFICERS President Ha.rry Truman Moore President-Elect Jack A. McNulty Immediate Past President Carolyn Witherspoon Secretary ·Treasurer Daniel R. Carter Executive Council Chair J. Thomas Ray Young Lawyers' Section Chair Denzil P. Marshall, Jr. Executive Director William A. Martin Assistant Executive Director Judith Gray

EXECUTIVE COUNCIL Ray Baxter A. Glenn Vasser R. Scott Morgan Steve Shults Charles L. Carpenter, Jr. Stanley D. Rauls Tom Ledbetter Robert R. Estes

Louis B. Jones, Jr. Tom Donaldson Mike Everett Michael E. Irwin Lynn Manning Flynn Mark Cambiano Lynn Williams TIIt~ Arkansas Lawyer (USPS~) is published quarter~ Iy by the Ark..1.ns."lS Bar Association. Periooicals postage paid at Little Rock. Arkan!>.l::'. POSTMASTER: send address changes to Tile ArkallStlS Ltlwyer, 400 West Markham. Lillie Rock, Arkansas 72201. Subscription price to I\on·membcrs of the Arkansas 13M Association $15.00 per year and to members $10.00 per included in annual dues. Any opinion expressed herein is tholt of th€> author. and not necessarily thai of the Ark.lns,ls Bar Association or TIlt' Arkmlsas Lawyer. Contributions to TIll' ArkanSllS L.awyer are welcome and should be sent in two ropiL>S to EDITOR. n,l' Ark(/llsas Ltlwyl'r, -400 Wesl Markham, Little Rock, Arkansas 72201. All inquiric:.. regarding adwrtising should be sent to 1111' ArknnSlts Lawyer al the .lb<)\'e address. Copyright 1996, Ark.1TlSo.1S Bar Association. All rights rt'SCrwd.

By Stacey DeWitt

A new Jearure appears in this issue. Henceforth we will be highlighting the good works, accomplishments and activities oj local bars around the state. Our first kudos goes to the Cr{1H10rd/Sebastian County BQI: With David Vandergriff as their leader, fifty lawyers formed a volunteer legal service operation to help victims of the April tornado. Theirs is a sincere effort to help the community. Th.ey didn't do it to get recognition; but, as it turned out good publicity was a welcorned by-product. It seems the selfless concerns oj a few did the image of many a lot of good. As some oj )'ou know, th.e mention of attorney image sends me grabbing for the soap box. Certainly, there has been much on the topic in this column. But, I can't resist the opporl!lIlity to encourage others to emulare the example oj our Northwest Arkansas colleagues. Any good trial attorney knows slick presentation will Jail without substantive preparation. Such is also true with the case Jar attorneys. Even the most brilliant ad campaign can't save our reputation. In Jact, it might do more harm than good. Rathel; the image problem will be cured substantively, one on one with good attorneys. As Randy Shock so eloquently put it "we do give a damn." It's time we got credit for it. Our new president Jrom northeast Arkansas, Harry Truman Moore, is on board and he lives his advice to be involved in service. The cover article in this issue is devoted to his upcoming term. Take note of the title "Leading By Example." The idea is one we should all embrace.





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by Roy Wbitehead On the Cover: Arkansas Bar Association President for 1996-97, Harry Truman Moore and his wife, Linda Lou.



by Steve Weaver



by Sara Landis



by Stacey DeWitt



by Walter G. Wright, Jr. and Albert J. Thomas, III

In Every Issue by Stacey DeWitt by William A. Martin LAW OFFICE TECHNOLOGIES, by Claudia Driver LAW, LITERATURE AND LAUGHTER, by Vic Fleming PRESIDENT'S REPORT, by Harry Truman Moore ON ApPEAL, by D. P. Marshall, Jr. CLE DIRECTOR'S REPORT, by Charlotte Morrison Greer

45 46








4 6 8


Executive Director's Report

Within the Bounds of Law, Truth and Ethics by Willial/1 A. Martill When I was the senior lawyer in various Air Force legal offices new lawyers and members of the commander's staff would discuss the role of a defense counsel with me. The lawyers sought to reconcile being a military officer with resisting prosecutions and discharge actions brought in

the name of the

nited States. Lay senior officers had dif-

ficulty understanding how an officer could vigorously defend someone the commander seemed to want to put in jailor fire. My basic response was that when a lawyer is assigned to defend an individual then that Judge Advocates duty to the Air Force is to make the system work by providing the best defense possible within (he bounds of law. truth and ethics. Personally I found no conflict between the profession of law and the profession of arms. These comments about lawyers acting "within the bounds of law. truth and ethics" were my paraphrase of the ideals expressed in Canons 5 and 15 of the American Bar Association Canons of Professional Ethics (6 Ark. L. Rev. 404 (1952)) which existed when I was in law school. Cannon 15 uses the phrase "within....the bounds of the law." The term is repeated several times in the next code (Ethical Consideration Cannon 7 of the Arkansas Code of Professional Responsibility, 33 Ark. L. Rev. 610. 686 (1979)). It disappears in the Model Rules of Professional Responsibility, effective January I. 1986. (Rules Volume, A.C.A. Page 919). but the Preamble contains the comments: A lawyer's conduct should conform to the requirements of the law.. :' and: "virtually all difficult ethical problems arise from connict between a lawyer's responsibilities to clients. to the legal system and to the lawyer's own interest in remaining an upright person while earning a satisfactory living:' Woven throughout all these canons and codes is the requirement lawyers be truthful and candid. These are minimum obligations. Being licensed professionals requires us. as Michael Josephson. a speaker at our 1992 and 1996 Annual Meetings, tells us, to practice ethics beyond the code. While each of the terms--Iaw, truth. ethics--encompass somewhat different concepts. they are intertwined and in thinking about them I see a natural progression with each requiring adherence to ever higher standards. --And the combination is but a threshold which all of us should scrupulously observe. Law and truth are more capable of being measured objectively than is ethics. An action or statement may be lawful and truthful and not be ethical. Josephson reminded us: "Ethics requires us to give up the idea that an act is proper simply because it is permissible or that something is ethical so long as it is legal:' Sol Linowitz in his excellent book. Tlte Betrayed Profession. quotes Elihu Root as


\,~al\lj l.all)I"

Summrr 1996

telling a client: "The law lets you do it. but don·t...I(s a rotten thing to do." We must abhor the rotten. take seriously our permissible advisor duty under Rule 2.1 to refer ·'... 10 other considerations such as moral. economic. social and political factors. that may be relevant to the client's situation:' and in our lawyer role be. as Shakespeare in Hamlet had Polonius advising his son: '"This above all: to thine own self be true," If we are to be the type lawyers and the type human beings we ought to be, our ethical antenna must always be alluned to distinguish what is or is not moral, proper. fair and honorable. As lawyers we arc not called on to do unethical things to advance our client's cause. They are seeking a win,


"We represent clients,' we advise clients; we do not belong to clients. Zealous repre-

an advantage, not necessarily the jllst or ethical result. We represent clients; we advise clients; we do not belong to sentation is not license clients. Zealous representation is not license to do what is wrong. what is to do what is wrong..." unethical, what is dishonorable. Josephson in his slides at the 1996 Annual Meeting had a multitude of statements about ethics being beyond something than can be specifically required by any code or law. Among the many thoughts worth commilling to memory were: "Ethics is about actions--It is about what we do:' "Ethics is about doing what is right," "An ethical person often chooses to do more than the law requires and less than the law allows:' "Ethics is often about self-restraint: Not doing what you have the POWER to do: ot doing what you have the RIGHT to do: NOl doing what you WANT to do:· ··Ethics is about right and wrong and how an honorable person should behave:' "Ethics is about character and courage and how we meet the challenge when doing the right thing will cost marc than we want to pay:' "The real test of our ethical integrity comes when we believe that doing the right thing is not in our self interest:' On renection fony years after I first aniculmed my thoughts about the role of a defense counsel I believe more than ever: Always as lawyers we l11ust make sure everything we do is well within the bounds of law, truth and ethics. --And the most demanding of these is ethics,


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I AR0214 I

Law Office Technology

Report from the Electronic Data Network Committee by Claudia Driver The Electronic Data Network (ED ) Comminee met in Hot Springs on June t 4 and made two recommendations described below. This column will recap the work of the comminee during the past year, and describe the recommendations made to the House of Delegates during

the Annual Meeting in June. Arkansas Bar Association Webpage Over the past year, the Arkansas Bar Association has established a homepage on the World Wide Web. Bar Association information is now available in electronic

format through the webpage, which is located at hnp:// and has been provided to the Association without

cost by Kyle Parker and LOIS. Webpages are always evolving, and the Bar will continue to look for ways to

make the best use of this technology for members. Suggestions may be e-mailed to the ABA via the webpage, or given to any member of the committee.

appointed from a list of three names submitted by the Arkansas Bar Association. UALRIPulaski County Law Library

Committee has assisted with three tech-

Director Lynn Foster was selected and

tributed three columns for The Ark111Jsas

has gone on to chair the board. Lynn reported in Hot Springs that the board

Recommendations - Citation Refoml

would soon submit Requests for Proposals to various service providers. and is moving forward to put Arkansas governmental information online.

With Lynn Foster as the Arkansas Bar Association's representative on the INA

board. the committee feels that the information needs of the Bar will be best addressed through that venue. rather than having the Bar Association attempt to

establish a system apart from the official state network. Association information will be made available via the Arkansas Bar Association webpage. Governmental

information will be the focus of the

bership package with a provider in the

the state. The Arkansas Supreme Court

Providers (lSP路s). With the explosion of

posts a weekly summary of proceedings to this list. Other discussions have been slowly picking up. although the list is fairly quiet to date. To subscribe to ArkLawyers. send a message to with no subject line. The texl should read

legal information available on the internet, we looked for a provider willing to service all Arkansas lawyers. whether urban or rural. The company selected is intellinet. which now provides a discount-

ACI 1139 of 1995 established the Information Network of Arkansas (INA). The Act provides for a board appointed by the Governor, to include one member

proposal. The ABA Special Committee recommends a reform in the method of Cilalion to caselaw that would eliminate depen-


evolving marketplace of Internet Service

ing instructions on how to post messages, how to unsubscribe. and where lO direct questions. Save this message for future reference. Information Network of Arkansas

The Committee voted to support recommendations contained in the Final Report of the American Bar Association Special Committee on Citation issues. Committee member Lynn Foster has worked in this area for three years within the American Association of Law Libraries and provided the committee with an overview of the issues. While the committee was not unanimous on this. lhe vote was overwhelmingly in favor of the

allowing increased competition and innovation in electronic publishing as well as more precise pinpoint citation to authorities. If adopted. the new citation method would utilize sequential case numbering

matters of interest to the practicing bar in

Do not include a signature line. You


Information Network of Arkansas.

jects this past year was to obtain a mem-

will receive a confirmation message giv-

nology related CLE programs and con-

Internet Services for ABA Members One of the Committees primary pro-

Ark-Lawyers Listserv An Ark-Lawyers listserv has been set up and publicized for anomeys to discuss

subscribe Ark-Lawyers youmame

and through CLE programming. The

ed service package for Arkansas Bar Association members. The ISP market is volatile to say the least. and we are seeing Arkansas lawyers board the information

highway through several companies. In the year past the number of providers has grown by multiples and prices have continued to drop. For information about the

ABA package available from intellinet. contact the company at (Sal) 376-7676. Continuing Legal Education Another means by which the Committee has sought to encourage development of electronic resources for lawyers is by educating our members through columns in The Arkansas Lawyer


copyrighted page l1umbering.

and paragraph numbers. Both would be available for citation to any publishers product. Parallel cites would no longer be necessary. The proposed citation for-

mat is equally useful for paper (book) and electronic formats.

For details on this proposal. see the Final Report of the Special Committee. The report is available from either law

school library. Recommendations - Renaming of the Committee The Committee voted to recommend that the name of the committee be changed to the Electronic Information Committee. renecting a broader current mission. The original name. Electronic Data Network Committee. was assigned when an electronic bulletin board system was under consideration and pertained to that project. Time constraints prevented Continued

discussion of a new mission statement. but all agreed to continue the subject on the Arkbar-edn listserv. which has been used during the past year for e-mail discussion, and through other communications. Where We Arc The influence of new communications technology is being felt in Arkansas. and Bar members are at varied levels of ease with new technologies. This Committee will focus efforts on promoting improved access to vital information using network and communicaLions technology, and on educating members on the use and benefits of electronic technology in both communications and information access. Chairing the group this year will be Margaret ewton, who contributed generously during the past year as a committee member. Another notable contributor has been Bill Manin, who has proven beyond any doubt that law related use of cyberspace is not just a club for recent law graduates.

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Law Laughter & Literature

Toward Balance Through Healthy Humor Copyright /996 It's no secret that I undertake many activities. I practice a Lot of Law. I write Humor columns, both weekly (some might say weakly) and quarterly. I speak, occasionally (some might say incessantly). For the past three years I coached 4th-6th-graders in creative problem-solving competitions ("Odyssey of the Mind"). Diversity, I believe, is the key to Balance. Balance is good. Balance is needed. And Balance is inextricably bound up with Humor. True Humor from the Real World It's important to be able to spot and utilize True Humor in the Real World. For reasons that I still ponder, many tind this a difficult task. People laugh at True Humor, especially when it sneaks up on them. To test this proposition, approach someone nearby. Don't say. ""m gonna make you laugh." Say, ''I'm gonna read from actual legal case testimony": Q. Please state the nature of your relationship to Johnny Darrell Bai ley. A. I'm his mother. Q. And you have been all his life?

Q. When was the last time you saw Walter? A. At his funeral. Q. Did he make any comments to you at that time? Q. So. you were unconscious and they pulled you from the bucket. What happened then? A. Mr. Sistruck gave me artificial insemination. You know, mouth to mouth.

Q. Doctor. as a result of your examination of the plaintiff. is the young lady pregnant? A. The young lady is pregnant. But not as a result of my examination. These are actual excerpts from transcripts and depositions. I've used such excerpts in speeches for years. watching adults fall from chairs in healthy, hearty, infectious laughter. Phenomena at Work Several phenomena are at work in this Laughter Experience. Courtroom dialogue is not expected to be funny. So. when it is, the giggle box flips rather violently. Laughter rushes in and provokes an unexpected release of tension. Endorphins run wild. popping adrenaline into spots that were ready for slumber. or at least a rest. This makes people feel good and they like it. II energizes them in a positive way.

Thr Irk"''' tall.lrr



by Vic Fleming

The above quotes would not be funny if they were jokes. Their beauty lies in their Truth, proving: "Beauty's more than skin-deep (oh, yeah!)." True Humor usually has its most marked effects on those who need it most. Overly-serious, narcissistic and humorless people react with the most uproarious laughter, often lingering to regale the orator with compliments. But unless they make a concerted effort to begin incorporating True Humor into their own lives. they revert to their old ways. Administrative Law Riot: A Historical Digression An incident from my third year of law school illustrates this phenomenon. Administrative Law was taught by a wonderful gentleman, who'd been house counsel to a governmental agency in a Prior Existence. A grandfatherly scholar. Ihis man exuded a serious type of seriousness, which was neither uncommon nor unexpected by law students. And he was an excellent instructor. Toward the end of the semester we came to State Employees' Retirement System v. Industrial Accident Comm'n. 217 P.2d 292 (Cal. App. 1950), a case in which the widow of a game warden (a Mr. Lund) won workers' comp benefits despite unusual circumstances surrounding his death. Reading the case, I was moved by the Poetry Muse (whose name I can never remember). The next day I greeted the prof. saying I'd be glad to recite the Lund case. Half-way through the hour. I was called upon. I stood and dead-panned my "brief': A certai n game warden out west Worked one night with an interesting guest. But in order to make it, he tirst had to fake it And put his wife's understanding to test. ''Tonight I will be working late," He said to his gullible mate. "My assistant and I will be lurking to spy On some hunters we need to set straight." He lOok his girlfriend on duty instead In a state car that made into a bed. Rather scantily dressed the warden and guesl Were found there the next day quite dead. His widow claimed due compensation Despite the alleged deviation.

"He was oul on the job;' she said with a sob. "Now he's dead. I demand reparation." The case was a source of annoyment Because of the corpus conjoinment. The heirs were squirming while the court was affirming: Death occurred in the course of employment. There was a game warden named Lund Who was prone on the job to have fun, But in the course of employment intercourse for enjoyment Caused his death when he let the engine run. This law teacher laughed as he had never laughed before, removing his glasses and wiping tears from his eyes, As did my classmates. some of whom feared the professor might expire from hilarity. When order was restored, class was dismissed: to have regrouped for serious discussion would have been impossible. I was called upon by the professor to remain after class. Friends feared for my future in the legal world. For surely a student who would limerick a case brief would be subjected to discipline of the highest order. Or at least told to get his act together for the sake of the Bar. But the professor thanked me for the humor, saying thm i[ was a needed respite on that day. He asked both for a copy of the poem and permission to read it aloud to future classes. I granted him license in perpetuity [0 do so. We became friends, a relationship was built, and a little bit of magic popped all around us. How to Make a Difference From that day in 1977 forward I have tried to be attuned to ways in which True Humor can, and does. Make a Difference in the lives of people who need that Difference. In 1984. althe behest of Ruth Williams, then-editor of this magazine, I look the risk of taking Humor to the Bar in print. Since OClOber of that year, this column that has run (some might say ambled). In 1993 my other column, "I Swear," which appears in papers in more than two cities, achieved weekly status (though not without my assistance). Comments lead me to believe that a Legitimate Purpose is being served by my treatment of the Lighter Side of Law. I've tried to display. to Bar and non-Bar communities, the need for a healthy Balance between the Sense of Humor and the Humor of Sense. In recent years I have taken that message vocal. with speeches in over 27 Zip Codes. It is one thing to write columns that people comment favorably upon and 10 make occasional keynotes. It is another 10 take this Ministry of Humor 10 the proverbial Next Level. But I've accepted a New Challenge. A

ew Gauntlet has been laid down. I've created a workshop. Sometimes it has a catchy tille, like "Gone With the Win" or "The Wizard of Ah's" or "The Briefest History of Time," It is an interactive seminar, stressing the need 10 have an appropriate Sense of Humor in Life as We Know It, alk/a The Real World. Results are guaranteed. Participants do learn the imponance of Balance and the function of Humor in bringing about Balance. They are shown ways in which to increase their "Level of Humor." They are given "Commandments," or "Canons;' of Humor, which they can work on, via "home play" assignments. They are taught the difference between toxic and healthy humor. They are given tools for identifying and isolating the Sense of Humor and suggestions on how it should interface with the Humor of Sense, so as to increase self-esteem, enhance productivityand build relationships - objectives few people oppose. It works. I'm on the verge of taking it "on the road," to law schools everywhere, where it just mighl be most needed. I invite comments from all who have an opinion as to how this Traveling Humor Workshop mighl mosl effectively serve the Bench and Bar of the Western World.

Vic Flemi"g practices i" LillIe Rock. COli/act him at 3801 TeBY Tower, Lillie Rock AR 7220/; 101l1ree 888-SIVEAR88; email; FAX 50/-372-3359.

"decisive distinctions between capital and ordinary expenditures are those of degree and not of kind", and a careful evaluation

The IRS Plows New Ground in the Tax Treatment of Environmental Cleanup Costs by Roy Whitehead

of the facts of each case is required.3 In determining whether current deduction or capitalization is the appropriate tax treatm~nl fur any particular expenditure, it is important 10 consider the extent to which the expenditure will produce a significant future benefit 4


Roy Whitehead, 11:. received his J. D. and LL.M degrees from Ihe University of Arkansas, Fayelleville, He practiced as 1I trial llllomey for /5 years and has taught BlIsil/ess Law at UCA for /0 years.

INTRODUCTION Owners of real property are often required to remove hazardous waste from their property because of environmental laws or because of a healthy desire to maintain a clean environment. Further, it

nated by the taxpayer. t In stark contrast. however. two recent Technical Advice Memorandums have again raised the issue of deductibility of remediation costs when the property had been acquired by the taxpayer in a contaminated condition.

is desirable thal public policy. as reOected by the Internal Revenue Service's inter-

prclalion of the lax code. at least encourage, if not actively provide an incentive to rcmcdiate environmental problems. One

of the issues, that until recently was unsettled, is whether environmental cleanup costs are currently deductible as

ordinary and necessary repair expenses under ยง 162 of the Internal Revenue Code or whether the costs must be treated as a capital expenditure that must be capitalized under ยง263 of the Code. There are currently few court decisions thal provide specific judicial guidance concerning the tax treatment of cleanup costs. After procrastinating for several years the Internal Revenue Service has, however, finally issued a definitive Revenue Ruling concerning the treatment of cleanup costs associated with removal of hazardous wastes from property that was contami-

10 Thr


Su.mrr 1996

CAPITAL EXPENDITURE OR ORDINARY AND NECESSARY EXPENSE The distinction between a capital expenditure and one that can be currently deducted is often difficult and must be based on the facts of each particular situation. Section I62(a) of the Internal Revenue Code allows deductions of: All the ordinary and necessary expenses paid or incurred during the taxable year in carrying out any trade or business. Even though a particular taxpayer may incur an expense only once in the lifetime of its business, the expense may be justified as ordinary and necessary if it is appropriate in carrying on the business, is commonly incurred, and is not a capital expenditure. 2 Moreover, as the Supreme Court has specifically recognized. the

In contrast, ยง263 of the Code allows no deduction for a capital expenditure an "amount paid out for new buildings or for permanent improvements or betterments made to increase the value of any property or estate." The primary effect of characterizing a payment as either a business expense or a capital expenditure concerns the timing of the taxpayer's cost recovery. While business expenses are currently deductible, a capital expenditure usually is amortized and depreciated over the life of the relevant asset. or. where no specific asset or useful life can be ascertained. is deducted upon dissolution of the enterprise. Section 1.162-4 of the Regulations dealing with the repairs, states: The cost of incidental repairs which neither materially add to the value of property nor appreciably prolong its life but keep it in ordinary efficient operating condition, may be deducted as an expense... Repairs in the nature of replacements. to the extent that they arrest deterioration or appreciably prolong the life of the property. shall be capitalized and depreciated.... Thus. it appears that the two key issues raised by the regulations that must be examined in connection with any expenditures for cleanup costs are whether the property's life is appreciably prolonged, or whether the value of the property has materially increased as a result of the expenditure. If neither of these conditions is present, and if the expenditure merely reSlOres the property or keeps it in an efficient operating condition, it is a maintenance or repair expense and is therefore deductible. 5 On the issue of whether an expenditure adds to or increases the value of property. the tax court has ruled that the proper test is to compare the value after the repair has been completed with the value prior 10 the existence of the condition necessitating the repairs. and not

with the value immediately prior to the making of the repair. Concerning the second issue or requirement for an expenditure to be cap-

italized as whether it appreciably or substantially prolongs the useful life of the propeny. the Tenth Circuit has indicated that there is no absolute rule requiring the automatic capitalization of every expenditure providing the taxpayer with a benefit

enduring for a period in excess of one (I) year6

TAMs. In order to fully understand the implications of Rev. Rul: 94-38 and the IRS's ignificant depanure from its previous position on deductibility of clean-up costs. the specific facts of the TAMs and the basis for the IRS's holdings are discussed below. Some of the problems with the IRS's rationale in the TAMs is also presented. Finally. Rev. RuJ. 94-38 is summarized.

Relying on the IlldofJcO case. the Internal Revenue Service released two

THE IRS AND CLEANUP COSTS As previously indicated. there appear

Technical Advice Memorandums (TAMs). the first concerning the costs to

to be few cases or rulings directly involving real property cleanup costs. On

remove and replace asbestos insulation in manufacturing equipment and the second on land cleanup costs. IO While the first

February 26. 1992. however. the U.S. Supreme Coun decided a case that the IRS adopted as analogous to a land cleanup case. In II/dopco. Illc. v.

Commissioner? the court held that a raxpayer has the burden of showing that costs for investment banking fees and expenses incurred during a friendly acquisition are not capital in nature and deductible as ordinary and necessary business expenses. Citing Commissioner l'. Lincoln Savings and Loan Association 8. the Court set out a five part

test to qualify for a deduction under ยง 162(a) of the Code. The Coun stated "an item must (I) 'be paid or incurred during the taxable year: (2) 'be for carrying on any trade or business: (3) 'be an expense: (4) 'be a necessary expense: (5) 'be an ordinary expense:" The Coun stated that the term "necessary" imposes "only the minimum requirement thal the

expense be appropriate and helpful for the development of the taxpayer's business:' 9

Prior to June. 1994. the IRS issued two Technical Advice Memorandums

(TAMs) on specific clean-up COSIS that were disappointing to most taxpayers.

While the TAMs did not address the broad issue of environmental cleanup

costs. they did provide the rationale the IRS initially adopted in determining capitalization versus current deductibility

issues. On June 2. 1994. the IRS issued Rev. RuJ. 94-38 relating to the tax treatment of certain hazardous waste land

cleanup costs. The IRS's position outlined in the revenue ruling represents a complete reversal on some of the issues

from the IRS's previous holdings in the

TAM did not specifically address environmental land cleanup costs. it did state that

company and the EPA then reached an agreement that requires the company to initiate a clean-up program.

In the TAM. the costs anticipated being incurred by the company (relevant to this anicle) include the following: J. Soil and groundwater assessment to detennine the level and location of PCB contaminated sites: and 2. Soil remediation that includes the excavation and transportation of PCB-

contaminated soil and backfilling. The cleanup program is expected to take several years and cost millions of dollars. In addition, although the specific figure is not known. the total projected e1ean-up costs represented a significant percentage

of the book cost of the taxpayer's system. The taxpayer argued that all of the environmentaJ cleanup costs are

the cost of removal and replacement of asbestos in equipment was in the nature

deductible as ordinary and necessary business expenses under ยง 162 and fall

of a capital expenditure because. by eliminating the human health risks. the expen-

company also argued that the costs are

ditures increased the value of the taxpayer's equipment and made the property more marketable.

In the second TAM released in February 1993. the IRS revisited the capitalization of remediation costs in the con-

text of the cleanup of land. tl Although the TAMs do not specifically address the broad issue of environmental cleanup

costs for all situations. they eenainly provide the taxpayer with the rationale the Service had adopted in determining capitalization versus current deductibility issues.

In the second TAM the taxpayer used a synthetic lubricant in some of its equip-

ment before 1972 which contained PCBs. The taxpayer was nOlified of the PCB contamination in 1972 by the manufactur-

er and ceased to use the lubricant. The company. however. was faced with the task of disposing of the waste generated from the routine maintenance of the equipment. The waste was placed into numerous earthen pits and trenches on its

propeny. Subsequently. consistent with its reg-

ulatory authority. the EPA required the company to perform tests to determine the extent to which soil near the pits were contaminated with PCBs. During this process. it was revealed that the soil was contaminated and the EPA filed a com-

plaint alleging that PCBs had been illegally disposed of by the taxpayer. The

under the definition of "repairs." The not for the acquisition of an asset and only provide needed information about contaminated sites in order to undertake remedial actions. Finally, the taxpayer reasoned that because the costs were incurred to correct activities undertaken in the past, rather than provide a future

benefit, the amounts should be deducted currently. The IRS rejected the company's position that the cleanup costs were ordinary and necessary business expenses under

ยง 162. Specifically_ the IRS outlined the four conditions that must be met under ยง 1.162-4 for a repair cost to be taken as a deduction. The fOUf conditions include

that I) the repair is incidental; 2) the repair does not materially add to the value of the propeny: 3) the repair does nOl appreciably prolong the useful life of the propeny: and 4) the purpose of the expenditure is to keep the propeny in ordinarily efficient operating condition.

The IR concluded that the taxpayer failed to meet conditions one. two. and

four. Relying on Wolfsell Lalld & Caule. Co. v. Commissioller l2 . the IRS stated

that the "costs of the clean-up project are more appropriately classified as capital expenditures than as maintenance or repair charges:" In Wolfsell, the taxpayer incurred the costs of draglining ditches in a farm irrigation system to clear them of sediment in order to keep the ditches



lrhom L'"JIr



functioning (Le., water flowing). The ditches were cleaned out every 10 years rather than every year. The court held that draglining the ditches constituted a systematic plan that had a significant impact on the value of the irrigation system and thus, should be capitalized. In other words, the draglining materially increased the value of the property. In the TAM, the IRS found the taxpayer's situation to be similar lO Wolfsen, in three ways. First, the taxpayer chose to do an extensive cleanup project rather than annual waste idemificmion and disposal. The fact that the company was unaware that its method of disposal would require clean-up in the future was considered irrelevant to the proper characterizarion of the clean-up costs. Second, in both Wolfsen and the present TAM, the costs were undertaken as part of a systematic plan. Third, based on Wolfsen, the taxpayer's property will be more valuable in its business after the clean-up of the PCB residues. As in the first TAM issued in 1992. the IRS rejected the test used by the Tax Court for determining whether an expenditure increased the value of the property. In Plainfield-Union Water Co. v.

Commissioner I3, the tax court devised a test for determining whether an expenditure increases the value of the property thus triggering a requirement to capitalize clean-up costs. The court stated that the property's value after the expenditure must be cOl1lpan:~J tu its value prior to the existence of the condition necessitating the ex.penditure in order to determine if its value was enhanced. The IRS distinguished the PlainfieldUnion test by concluding that the cleanup operations were non-essential repairs; that the cleanup operations did materially add to the value of the property; and that the purpose of the expenditures was not to keep the property in ordinary efficient operating condition, but to effectuate a general restoration of the property which should be treated as an addition to the capital investment.

INGENIOUS BUT INAPPROPRIATE The reliance on the Illt/opeo and Wolfsen cases was ingenious but inappropriate for several reasons. First, recall that the tax court in Plainfield-Union, held that the proper test is to compare the value after the repair has been completed


n, Irkllllll,l!!yrr

Summit 119&

with the value prior to the existence of conditions necessitating the repairs, not with the value immediately prior to the making of the repair. Cleanup costs for hazardous wastes, one should contend, restore the land to its condition and value prior to the existence of the condition necessitating the repairs and not to the value immediately prior to commencing the cleanup. In other words, the cleanup merely restores the land to its original value prior to its contamination. Unlike manufacturing equipment in the first TAM, the value of land prior to its contamination and its value after cleanup can be objectively determined by real estate appraisals. Second, concerning the issue of whether the cleanup appreciably or substantially prolongs the useful life of the property; there is no absolute rule requiring the automatic capitalization of every expenditure providing the taxpayer with a benefit enduring for a period in excess of one year. Given that the cleanup only restores the property to its original condition it follows that the taxpayer has not actually received a benefit enduring for a period in excess of one year because the property owner only has regained the asset he originally possessed. Finally, even if the cleanup is considered to be a benefit prolonging the life of the property, the Wehrli case indicates that there is no absolute rule requiring an automatic capitalization of every expenditure providing the taxpayer with a benefit enduring for a period in excess of one year and that the question is one of fact for the court. The one year rule discussion in the case was merely a guidepost rather than an absolute rule. Third, from a public policy perspective. the Internal Revenue Service's position creates a very practical disincentive that will resuh in the avoidance or delay of the cleanup of property. Given the position of the current national administration on environmental policy, business owners can expect greater opportunities to make contributions in the area of cleanup costs and should be encouraged to make those contributions voluntarily. Fourth. the IRS position that the property is somehow made more valuable because of the cleanup cannot be objectively supported. The more rational position is that the property is no more valuable than it would have been had not the

hazardous waste condition occurred. The logical test. supported by the Ploinfield Union case, is to compare the value after the cleanup with the value prior to the existence of the condition necessitating the cleanup. Fifth, the costs associated with cleanup should be considered as "ordinary and necessary expenses," deductible under ยง I62(a) because they are necessitated by governmental and environmental policy. The purpose of the cost is to properly utilize the land and protect the public rather than to create a more valuable asset. Sixth, the cleanup costs should be capitalized only if they produce a new and distinct stream of income that could not have been generated by the real estate in its condition prior to the existence of the condition necessitating the clean-up. Finally, there is a striking analogy between environmental cleanup costs and the tax treatment of land reclamation costs in the mining context. Cost.s incurred to reclaim mining land are clearly deductible under tax court decisions. 14 After all the cleanup is a mere mending of the property rather than an addition to its value for its highest and best use. 15

THE IRS PLOWS NEW GROUND There were numerous flaws in the IRS's arguments that supported its position concerning capitalization of clean-up costs. It appears that the IRS has, at least in part, conected its approach to land cleanup costs in Rev. Rul. 94-38 16 The fuCIS outlined in Rev. Rul. 94-38 are very similar to the facts present in the second TAM. The taxpayer was faced with the need to conduct a soil and groundwater assessment and conduct soil remediation including ex.cavation and removal of contaminated soil. In Rev. Rul. 94-38, the taxpayer was an accrual basis corporation that operated a manufacturing plant purchased in 1970. Due to manufacturing operations, hazardous waste was discharged, and the taxpayer buried the waste on potions of its land. In 1993 to comply with Federal. state, and local environmental requirements. the taxpayer undertook soil and groundwater remediation procedures and established a system for the continued monitoring of the groundwater to ensure the remediation had removed all hazardous waste. The taxpayer also began

constructing groundwater treatment facilities to extract. treat, and monitor contaminated groundwater. An important fact stipulated in the revenue ruling is that "the effect of the soil remediation and groundwater treatment will be to restore [the taxpayer's] land to essentially the same physical condition that existed prior to the contamination:' This was the exact situation outlined in the second TAM where the IRS concluded that the costs should be capitalized. The IRS's holding in the revenue ruling, however, is completely opposite, and appears to remove the economic disincentives of the previous position. Based on the circumstances presented in the revenue ruling, the IRS concluded that the costs incurred to cleanup land and to treat groundwater that a taxpayer contaminated with hazardous waste from its business are deductible by the taxpayer as ordinary and necessary business expenses under IRC Sec. 162. The costs attributable to the construction of groundwater treatment facilities are capital expenditures under IRC Sec. 263A. In the revenue ruling. the IRS first stated that the IRC "generally endeavors to match expenses with the revenues of the taxable period to which the expenses are properly attributable, thereby resulting in a more accurate calculation of net income for tax purposes." In addition, relying on Indopco. the IRS acknowledged that in determining whether expenditures may be currently deductible or capitalized, it is important to consider the extent to which the expenditure will produce significant future benefits. Applying the above points to the taxpayer's situation, the IRS held that the soil remediation expenditures and ongoing groundwater treatment expenditures "do not produce permanent improvements to Ithe taxpayer's] land within the scope of IRC Sec. 263(a)( I) or otherwise provide significant future benefits." Furthermore. the ruling concluded that the appropriate test for determining whether the expenditures increase the value of property is the test outlined in Plainfield-Union. In evaluating the potential increase in value to the taxpayer's land due to the soil remediation costs, the IRS concluded that the taxpayer "merely restored its soil and groundwater to their approximate condition before they were contaminated by fits] manufac-

turing operations:' In the ruling, the IRS also supports the current deduction for the soil remediation expenditures and ongoing groundwater treallnent expenditures by indicating the costs are not subject to capitalization under IRC Sec. 263(a)(2)because the contamination was not present when the property was acquired. Deductions were also justified because the land was not subject to an allowance for depreciation. amortization. or depletion. Finally, the IRS concluded that the expendilUres (other than the costs attributable to the construction of facilities) are "appropriate and helpful in carrying on [the taxpayer's] business and are commonly and frequently required in [the taxpayer'sl type of business." As expected. the IRS concluded that the groundwater treatment facilities constructed by the taxpayer have a useful life beyond the taxable year in which they are constructed. Consequently, these costs are capital expenditures under IRe Sec. 263(a). In addition, the taxpayer is required to capitalize the direct costs and a proper share of allocable indirect costs of constructing these facilities under IRe Sec. 263A.

Iy increase in relation to its value when acquired in a contaminated condition. Interestingly, the IRS, in response to a request for reconsideration. has withdrawn the holding but not the philosophy of TAM 9S-41 DOS. The withdrawal letter at the writing of this article has not been officially released. Surprisingly, and of concern 10 taxpayers, the withdrawal was based solely on a reconsideration of the facts of the case. The taxpayer was able to convince the Service that there was not an actual break in the ownership of the property and that the lax payer did own the property when it was contaminated. The taxpayer owned and contaminated the property, sold it to a subsidiary, who donated the property to a county, who discovered the contamination and conveyed it back to the subsidiary. The IRS' reliance on the facts, rather than disavowing the philosophy expressed in the TAM, leads to a strong inference that the nondeductibility philosophy for pre-contaminated property expressed in TAM 9S-41 OOS will be followed in the future. Obviously. individuals involved in the acquisition of property must carefully consider the possible tax treatment of their liability for cleanup costs.

PRE-CONTAMINATED PROPERTY (BUYER BEWARE) The IRS has recently signaled that the rationale of Rev. Rut. 94-38 on the deductibility of cleanup costs will likely be limited to situations where a taxpayer contaminates its own property. So what happens when a taxpayer acquires by purchase or merger pre-contaminated property? In Technical Advice Memorandum 9S-4100S,issued September 27, 1995, the IRS dealt with a situation where the taxpayer was thought to have purchased land in a contaminated condition. The Service carefully distinguished Rev. Rut. 94-38 by contending it only applied to situations where the taxpayer first purchased or owned property in a clean condition and then contaminated the property. The Service contended that the cleanup costs for property acquired in a contaminated condition are not deductible because the cleanup produced a more valuable asset rather than merely restoring or mending the property to its original condition. The cleanup costs, said the Service, failed the Plaillfield Union test because the value of the property, when restored, will material路

CONCLUSION The change in position expressed by the IRS in Rev. Rut. 94-38 on cleanup costs when the taxpayer has contaminated its own property has corrected the economic disincentive present in its former position. Taxpayers (at least taxpayers in similar circumstances discussed in this article) who voluntarily comply with environmental laws may now currently deduct their expenses. The IRS' decision to correct the economic disincentives created by its position in the previous TAM is good public policy for both the taxpayers involved and the general public. The IRS's recent contention, however, that cleanup costs should only be deducted when property is purchased in a uncontaminated condition, then contaminated. and only then cleaned up. is logically inexplicable. If the purpose is to protect the environment, and the public, what difference does it make, when a taxpayer is acting in good faith, whether or not property has been acquired in a contaminated condition. The Service's position can only lead to an increase in purchase costs, a concern about predictability, and Il n~ I,tuml,,"W

Sunr, IIII

frankly, in some cases, an avoidance in dealing with environmental concerns. This article is a revisioll of all article in

48 OKUI. L. REV. 4/7 (/995). ENDNOTES I. Rev. Rul. 94-3R, 1994-1 C.S. 35 (Jun 2. 1994). 2. Commissioner v. Tellier. 383 U.S. 687 (1966). Even when, as in this case, the ordinary and necessary expenses was the cost of hiring a lawyer to represent the defendant against mail fraud charges, the court quoted language from the 1913 Senate debate on the first income tax bill

Ihat. "[T]he objeci of this bill is to tax a man's net income; that is to say, what he had at the end of the year after deducting from his receipts his expenditures or losses:'

3. Welch v. Helvering, 240 U.S. 111,114 (1933). The court decided that payment of debts without legal obligation to heighten one's reputation is, rather than being ordinary, to a degree extraordinary. and disallowed a deduction. 4. Indopco, Inc. v. Commissioner. 112 S.

Ct. 1039, 1044 (1992). 5. Plainfield Union Water Co. v.

Commissioner. 39 TC. 333 (1962). 6. U.S. v. Wehrli, 400 F. 2d 686 (10th Cir. 1968). where thc court stated, "[T]his concept lthe one-year rule] has received rather wide acceptance. and we are urged to make arbitrary application of it here. We think, however. that it was il1l.ended to serve as a mere guideposr for the resolution of the ultimate issue. not as an absolute rule requiring the automatic

capitalization of every expenditure providing the taxpayer with a benefit enduring for a period in excess of one year. Certainly, the expense incurred in the replacement of a broken windowpane, a damaged lock. or a door. or even a periodic repainting of the entire structure, may well be treated as a deductible repair expenditure even though the benefits endure quite beyond the current

year:' Emphasis added. 7. 112 S. Ct. 1039. The IRS used the case for two propositions. First. that deductions are exceptions to the norm of capitalization, and second that the determination of whether an expenditure is capital requires an inquiry into the duration and extent of the benefits resulting from the expenditure.

8. 403 U.S. 345, holding that the creation of a separate and distinct asset may be a sufficient condition for classification as a capital expenditure. not thal it is an absolute prerequisile to such classification. Further. the case does not prohibit reliance on future benefits as a means of distinguishing an ordinary and necessary business expense from a capital expenditure.

9. I 12 S. Ct. at 1043. The court wem on to say that Lil1coln Savings stands for the simple proposition that a taxpayers expenditure that "serves to create or enhance a separate and distiller asset should be capitalized:'

10. Tech. Adv. Mem. 92-40004 (JUIl. 29. 1992): Tech. Adv. Mem. 93-15004 (Dec. 17. 1992). II. Tech. Adv. Mem. 93-15004 (Dec. 17.

1992). 12. 72 TC. 1 (1979). 13. 39 TC. 333. III Plainfield-Union the court decided that the expenditures to clean and restore a water main to its orig~ inal waleI' carrying capacity merely restored the asset to its original condition and did not create a new or separate

asset, 33 TC. at 337. 14. Ohio River Collieries Co. v.

Commissioner. 77 TC. 1369 (1981 ). allowed a deduction for the costs of reclamation of land that had been stripmined relying in part on the fact that government regulations required the expenditure.

15. U.S. v. Wehrli. 400 F. 2d 686. (1968). characterizes n "repair" as an expenditure to restore to a sound state or mend one which keeps the property in an ordinary efficient operating condition and does not add to the value of the property nor appreciably prolong ils life. The court also states that whether the life of the asset is prolonged is a question of fact.

16. The ruling specifically stated that the expenditures incurred by the taxpayer represented necessary and ordinary expenses within the scope of § 162 of the code. The clean-up of the land did not produce permanent benefits to the tax-

payer within the scope of §263 of the code. The ruling cites. and appears to adopt. the holding of Plailzfield-U/1ioll at least to the extent that the cleanup did not increase the value of the land when compared to its value in its original condition.

John E. McAllister, P.E. Graduate Electrical Engineer, 34 Years Industrial Experience. Specialist in Industrial Machine Guarding and Safety. I'

Born 1921. B. Sc. in Electrical Engineering 1947. 14 Years experience with General Electric Co. in engineering and indnstrial sales. 11 Years President o( company involved with repair and rewinding of electric motors and the manufacture, ales, 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 o( safety equipment for industry with major emphasis on metal forming and stamping. • Registered Professional Engineer in 3 stales. ... Curriculum vitae and references on request.

• • •

John E. McAllister, 9 Sierra Lane, Hot Springs Village, AR 71909·3214 Phone; (501) 922·1709 Fax; (501) 922·4177

President's Report

On Getting One's Legs by Harry TrulIlall Moore Something is missing frol1llhis President's Page and will be for the next three issues of The Arka"sas Lawyer - a photo of

the President. If you don't know what your new President looks like, look elsewhere in this issue. Now you are probably morc appreciative of the decision to share with you some of my favorite photographs in lieu of a mug shot. Casey's Colt is this month's feature. Casey's Colt and your new President have something in common - they're trying to "get their legs." Casey's Colt has a real advantage. In the course of nature, a colt gets its legs within a number of days. Some Bar Presidents never get theirs. The decision to seek this job was made without campaign promises or agenda. That's fortunate. Why? - Because your past and current Bar Leadership already had in place important projects which could not . '. have been completed within one Bar year. . ' .... ',' Bobby Jones surveyed the membership and found a genuine concern about the pub. lic's perception of lawyers and the effects of lawyer advertising. A well balanced committee of lawyers with different views on the issue. headed first by Henry Hodges and now by Donis Hamilton, is formulating a report that may (or may not) recommend proposed changes to our Model Rules of Professional Conduct. The committee is also addressing and referring to other bar commitlees problems regarding "runners" and the unauthorized practice of law. Carolyn Witherspoon recognized the lack of a concentrated efforr to address the issues of Domestic Violence. Her work in this field preceded the OJ. Simpson trial. The Domestic Violence Conference in April brought to Arkansas both national experts and an array of Arkansawyers from many disciplines to discuss the issue and what we. as a state, should do about it. After sponsoring and coordinating this effort, should the Bar now say "We've done our job:' No! To do so would be an abdication of our responsibility to the men. women and children of this state affected by this problem. The support of the new Domestic Violence Task Force will be a priority. Colts are usually trained after their birrh for the racing course which may best suit them. Bar President's don't have that good fortune. They have to run on a track created by events of the day. Your new President will also have to work through a legislative session year in a political climate which no one would have expected at the time of his election in November, 1994, With the alllicipated implementation of term limits, and the unexpect-





ed change in state political leadership, the upcoming legislative session will require an incredible amount of time from Bar leadership, and staff. at all levels. Your new President will not be the only one seeking his "legs" this year. Because of Bill Martin's announced retirement. we'll have a new colt or filly as Executive Director. Your new President looks forward to working through this time of transition. Don't get the idea that your new President has no goals, He is committed to working with Membership Chairs, Bob Cearley and Baxter Sharp, to inform you, and the lawyers in this state who aren't members of this association, why "membership has its privileges." The relationship between the Bar Association and Bar Foundation is also imponant at a time when the two organizations are separating their professionaJ leadership. Russ Meeks. Foundation President. has been promised a continuation of our his, , torically excellent working relationship. ..... Your new President is commined to . , working with all specialty bars toward our : mutual best interests. and he is dedicated to : ..•. working with the Judicial Council toward better benchlbar relations. The continued efforts to curtail, or abolish, legal service programs will require our leadership's allention and the renective consideration by all members of this association of our individual responsibility to the public. Thank you, Maurice Mitchell, for your agreeing to head this important Task Force. Your new President looks forward to working with his NEARK counterpart, Price Marshall. in finding ways to increase Young Lawyer participation in the Bar. He also will call upon many "old war horses" to recapture their "strut" and start planning the Centennial of the Arkansas Bar Association. Louis Ramsay will lead the field racing toward this celebration. By the time this is printed, Casey's Colt will be weaned, He's high spirited. He'll be kicking up his heels. Casey will be a great trainer for his colt. Your new President also will have a great trainer - Tom Ray, who will Chair this year's Executive Council. He will also benefit from a Bar staff which always isn't satisfied with a "place" or "show" finish. Your new President hopes he has half the energy of Casey's Colt. He'll need it. More importantly, he'll need your help and support.

1. ..




·····'<'1 L.; .·;>1

(footllote) Special thanks TO Harold C. "Casey" Hornet; President of Homer Motor Company in Paragould for sharing his first col' ';after a string affilly's" with liS. Ii Tbr IrlmlllJ"lrr

Summrr 1l9i

Toleration of ambivalence is an essential ingredient of intellectual. emotional, and political maturity. -James Boyd White I According to Lon Fuller. Caligula honored the Roman tradition that laws should be written and posted in a public place: he ordered, however. that his edicts should be written in such fine print and posted so high that the people could not read let alone understand them 2 Without Caligula's perversity. the modern regulatory state has bred similar results. Legislatures, courts. and administrarive agencies have created, with the best of intentions, a process that scrupulollsly abides by due process but generates a body of law that utterly confounds the vast majority of the general public. As Fuller noted in the I960·s. "Most of the world's injustices are intlicted, not with the fists, but with the elbows:' 3 The 1990's version of this truism is potently stated by Phillip Howard in The Dealh oj Common Sense: How Law Is Suffocating America. 4 Howard's thesis is that law has become so voluminous. arcane. and inaccessible that only a select "handful of Mandarins" can navigate its complexities. As an example. Howard consistently points to the encyclopedic body of environmental law as often missing the point of pollution or forcing environmentally irresponsible consequences. 5 Howard's diatribe against bureaucratic myopia immediately struck home. Within weeks of its release in 1994. both President Clinton and Senator Dole were tripping over each other to be seen holding up the dust cover of The Dealh oj Comma" Sense on camera. Florida Governor Lawton Chiles ordered the book by the case for distribution to his state agency heads. Howard became a talk show celebrity and "common sense" became a synonym for the latest wave of regulatory reform proposals from the

Ii Hr



Su••1t 1191

Democrats and Republicans. In the political festivities of the midI99O·s. however. the message of The Dem" of Common Sense has been lost. With the Democratic Administration and the Republican Congress coopting the teml for their respective agendas. the concept of "common sense" is stripped of any useful meaning. Proponents of the "Contract With America". for instance. invoked "common sense" in tandem with characterizing the Environmental Protection Agency [EPA I as the "Gestapo of U.S. government." This rhetoric served as the vehicle for launching the most concerted attack on environmental regulation in its twenty-five year history. despite the fact that environmental preservation remains a popular public goal and that environmental regulation has been demonstrably successful in improving the quality of the nation's air and water. All of this epic absurdity would be

fine entertainment if it were confined to the Beltway. Concerted efforts by wellfunded interests. however. have brought the same contrived wrestling match to the state legislatures where gridlock is not so much of a problem. Regulatory rollback has become a national obsession. threatening to tum some states into laboratories of pollution rather than democracy. The banality of the backlash should not obscure the fact that environmental regulation has some growing up to do. While precociously successful during its first twenty-five yems. environmental regulation has reached its painful adolescence. As described by Justice Breyer in Breaki"g the Vicious Circle. environmental regulation has collided with "the problem of the final I0%:' the point of diminishing returns where categorical "command and control" rulemaking does not yield the SHme success that was achieved when rivers were nammable and smog

lethal.6 The challenge today is how to deal with the small polluting businesses that do not have the resources to track the Federal Register or attend every state rulemaking session that may affect their interests. Also, the retreat from "command and control" strategies may force the regulators and the regulated to finally face the public's evolving environmental conscience as a legitimate democratic impulse rather than an inconvenient irritant. This article examines what has created the unwieldy body of environmental law and suggests some guides for distinguishing genuine from disingenuous reforms. THE RULE OF LAW RUN AMOK The architeclUre of environmental law is, to a large extent, a symptom of a unique period in American legal history. Roscoe Pound observed in the first quarter of this century that law evolves in cycles that alternately exalt bright-line rules or Oexible discretion 7 By 1923, Pound was decrying the lingering Nineteenth Ccntury tcndency "to make courts judicial slot machines;' and praising the trcnd toward empowering administrative agencies to individualize the application of the law. 8 Seventy years later. Philip Howard describes how far the pendulum has swung: "All tough choices. indeed all choices, must be predetermined. As citizens and officials, we are allowed to argue during the law-making stage. but. day to day. we are precluded from making sense of the problems before us.'路9 In other words. the basic complaint of The Demh oj Common Sense is that the modern obsession with rulemaking has turned administrative agencies into latter day versions of Pound's slot machines: "We ... have this egotistical belief that we can make government operate like a Swiss watch. tolerating no exception or uncertainty:'IO In examining how modern law came to this juncture, both Howard and Morton Horwitz in The TrallsJormmioll oj AmericlIll Law hisrorically trace the proliferation of administrative rules to {he conservative reaction to the New Deal. I I The explosion of the administrative state under Roosevelt was not accompanied by a nood of rules. but a sense of relentless and activist experimentation captured by historian Arthur Schlesinger: The problems are indeed complex.

The answers are not in the back of anyone's books...... 1t is common sense to take a method and try it." FDR said. If it fails. admit it frankly and try another. But above all try something. t2 In 1940 President Roosevelt vetoed an attempt to saddle his New Deal agencies with what he saw as crippling procedural strictures. After Roosevelt's death, New Deal critics regrouped and forced the passage of the Administrative Procedure Act (APA) in 1946. During this period, conservatives were inspired by the writings of Friedrich von Hayek. who offered a legal framework for combating the worldwide threat of totalitarianism and collectivism. His vision was a "rule of law" in which "government in all its actions is bound by rules fixed and announced beforehand." t3 Howard concedes that such motives are unassailable in the abstract. The problem is, the "rule of law" system inevitably became centralized beyond von Hayek's wildest nightmares once the public began demanding government's intervention to solve social problems: Our regulatory systcm has become an instruction manual. It tells us and bureaucrats exactly what to do and how to do it. Detailed rule after detailed rule addresses every eventuality, or at least every situation lawmakers and bureaucrats can think of14 By the 1970路s. when modern environmental law was born, the couns were adjusting the "rule of law" concept to fit the demands of a newly activist Congress. The federal statutes themselves were quite prescriptive and often set unreasonable schedules for more detailed rulemaking by EPA. Also during this period. the D.C. Circuit Court of Appeals took special interest in environmental issues, exacting a degree of administrative scrutiny in rulemaking that was previously unheard of. See Vermont Yankee Nuclear Power Corp. V. Natural Resources Defellse COllllcil. 439 U.S. 961 (1978). The result was layer upon layer of regulations that often had more to do with the balance of political power during a particular session of Congress than any definitive understanding of environmental hazards. For a good example of where Boolean logic meets Rube Goldberg legal precision. see 40 C.F.R. Parl261, "Identification and Listing of Hazardous

Wastes:' Whether under Republican or Democratic administrations. the volume of environmental regulations has exploded the last twenty years. and EPA still lags far behind the expectations of Congress and the courts. The law produced by this system of regulating may be inefficient and incomprehensible, but even more disturbing is the effect of excruciating rulemaking on the process of environmental decision-making. From its inception. environmental law has been marked by exhaustive opportunities for public scrutiny and comment. In Who Will Tell The People, William Greider describes how this process. which on paper is as egalitarian as possible, has been turned into a closed-door session by brute economics: "If fact-filled arguments and expensive expertise are the only route to influencing government decisions, then by definition most citizens will have no access. This is the functional reality. It cannot fairly be called democracy'"15 Thus, populist critics can charge, with some validity, that the environmental integrity of a common citizen's homestead is reduced to an acronym NIMBY ("Not In My Backyard") - so that it can be deftly discarded while the public and private sector experts ply their trade. According to Greider, privatized science - not power. money, political clout. or graft - has become the currency of environmental decision-making, yet all but the most organized and well-funded stakeholders are priced out of the discussion. The losers in this rule-bound version of administrative decision-making are not just populist instincts. In The Limits of w\t'.16 Peter Yeager details how "command and control" environmental regulation favors big business over small business. A large company or trade group can muster professional cunning in the rulemaking process, where legal terms are parsed and scientific concepts are hedged until the outcome coincides with big business's ability and inclination to comply. Small businesses do not have this luxury. and often find themselves on the muddy end of a "level playing field" constructed by their better financed competitors. Even branded environmentalists like Vice President AI Gore and Barry Commoner have admitted thaI the ruleladen "command and control" strategy

1i nr Irtaolll LIII}rr

Suntmr, 1991

has peaked as an effective tool of environmental protection. A replacement philosophy is not yet fully formed, but in 1995 the Clinton Administration released "Reinventing Environmental Regulation", a blueprint for a regulatory regime based upon flexibility with accountability. Unfonunately, this promising approach is being eclipsed by the clamor for other dubious reforms. RETROGRADE REFORMS As noted above, environmental protection remains one of the most popular governmental functions. Conservative Republicans have recently learned that direct assaults on environmental programs are politically self-destructive. Now, the focus has shifted to these three so-called reforms. All three are advanced as pleasant generalities, propositions no reasonable person could dispme. The intended effect, however, is to hobble agencies' ability to address environmental problems without directly aaacking politically popular programs. Property Rights Vber Alles During the Reagan Administration, Attorney General Ed Meese and his staff of eager young conservatives hatched a project that then Solicitor General Charles Fried considered quite radical: ..... to use the takings clause of the Fifth Amendment as a severe brake upon federal and state regulation of business and property."I? Finding only limited success in the courts, the alumni of this new school of takings law have turned their well-financed attention to the Republican Congress and the state legislatures. Through their efforts, a novel conception of takings law is being peddled to legislators as the true faith of the founding fathers and the salvation of free enterprise. The intellectual headpiece of the modern takings movement is Richard Epstein, the eminent torts scholar from the Chicago School of Law. In 1985, Epstein published Takings, on the first page of which he admits that he is not a constitutional law scholar. 18 Still, Epstein amends John Locke's political philosophy of property rights to fit the predilections of the Chicago School of Economics. Using his improvements on Locke's conception of property, Epstein rewires two hundred years of jurisprudence to reach the conclusion that practically all of twentieth-century legislation designed to ameliorate the rough edges of

IS Thr lrhnSiS L," irr

Summrr 1996

the Industrial Revolution (e.g., workers' compensation, minimum wage and maximum hour laws, social security, and income tax) constitutes an unconstitutional taking 19 Actually, the historical precedent for the modern takings movement is not the Founding Fathers, but the legalistic rationalizations for the Gilded Age when, according to Horwitz, "The courts came closest to holding that a property owner had a constitutional right to an unchanging world."20 Jurisprudence aside, the marketability of Epstein's version of the law is self-evident. Epstein's view of when the government owes compensation for a taking has spurred such conservative organizations as the "Defenders of Property Rights' and the "American Legislative Exchange Council" to tout model neo~takings legislation designed to stem the tide of "extreme environmentalism." There are two versions of neo-takings legislation currently being considered. The milder proposal requires a written "takings assessment" before government can act, yet another procedural hurdle that, according to a letter by Attorney General Winston Bryant and 32 other state attorneys general to the members of Congress, "would do nothing to reduce the likelihood of unconstitutional takings." The more radical proposal requires government to compensate landowners when property values have been reduced by a certain percentage because of a regulatory program. Two bills currently pending in Congress adopt this approach: H.R. 925, already passed by the House as part of the "Contract With America", would require compensation for reduction in property values stemming from government efforts to protect wetlands and endangered species; S.B. 605, sponsored by Senator Dole, would require compensation for a 30% reduction in property values caused by any federal regulatory program. In the states, twenty-two have passed some version of takings legislation. Most of these states have passed "assessment" statutes. In 1995, Texas and Florida passed broad compensation statutes, while Mississippi and Louisiana enactments require compensation only for regulatory takings affecting forestry or agricultural land. The most notable state developments were in Arizona, which passed an assess路 ment law, and Washington. which enacted

one of the most stringent compensation statutes considered. In both of these states, these laws were submitted for popular vote through referendum. In both states, the takings measures were rejected by the voters in landslide margins. As testimony to the influence and persistence of the interests promoting the neo-takings trend, legislators in both states vowed to bring back some form of regulatory takings legislation even after a decisive rebuke by the voters. Cost/Benefit Analyses and Risk Assessments As Industry Trump Cards Admittedly, reducing the COStS and benefits of any governmental decision to a "<1>" equation is a practical decision~ making tool, and a methodical approach to comparing the relative risks of different kinds of economic activities is a necessary function of setting regulatory priorities. But in today's political climate, accepting these first premises surrenders the fate of the environment to the contrived world view of opportunistic conservative think tanks and their corporate sponsors. Recent proposals in Congress would mandate extensive cost/benefit analyses and risk assessments for myriad regulato路 ry actions, and would make these exercises subject to judicial review. As a practical matter, these proposals would add more paper shuffling to an already burdensome process and create more opportunities for litigation in a process already mired in the courts. Making speculative exercises such as these procedural mandates covers up their fundamental shortcomings when analyzing environmental issues. For instance, the environment is at an immediate disadvantage in the cost/benefit context. While costs are relatively easy to calculate, environmental benefits are notoriously difficult to reduce to dollar values. The whole exercise begs the question as (0 why economic theories should drive social policy any more than other human values like altruism, aesthetics, or husbandry. As James Boyd White points out in JUSTice as Translation, any attempt to reduce social issues to equations with dollars as the currency of judgment is itself a moral choice that is far from universally accepted: Economics has the greatest difficulty in reflecting the reality of human community and the value of communal institutions. Its necessary lenden-

cy seems to be to destroy the idea of public action. indeed the idea of community itself. 21 A similar naw lies at the core of ri k assessment as a mandatory gatekeeper for the government regulatory decision process. 0 doubt, risk assessment is a valuable tool for discussing priorities in government regulation. Yet preoccupation with immediate human health is not the only measure of environmental stewardship. What is lost in this exercise is the undeniable public perception that what is bad for the biosphere (e.g., fish kills, acid rain. global warming) is bad for us in ways that we may not yet understand. Also, the risk assessment approach ignores the political choices, made in the 1970's and never popularly rejected. that protection of the environment is an end in itself, not one necessarily tied to immediate human comfort. It is now understood that whatever inconveniences the existence of rain forests or wetlands may impose on entrepreneurial instincts has importance beyond immediate economic desires. Still. these methodologies do provide valuable information and should be used whenever resources permit. Done correctly, however, cost/benefit analyses and risk assessments are grueling exercises combining technical information that is difficult to compile and sophisticated models that can only be interpreted by specialists in the dismal sciences. With this in mind. there is a simple, objective. and foolproof test for determining whether a so-called reform package touting costlbenefit analysis or risk assessment is a sincere effon to improve the decision-making process or a back-door assault on a politically popular regulatory program - check the appropriations bill. If proposed legislation increases the tasks government must perform to make a decision without an

accompanying increase in appropriations for staff or resources. the intended effect is regulatory inertia, not efficiency. Consider then that the proposals pending in Congress that would require EPA to prepare resource-intensive risk assessments and costlbenefit analyses were advanced in tandem with a cut in EPA's budget of 20% 10 33%. Devolution to (and in) the States Currently, a bipartisan movement is gathering at the national level to transfer more autonomy to the states for setting environmental priori lies. From the state's perspective, this is a welcome development. Admittedly, a strong Federal pres-

plaints to the state environmental agency. In Texas. recent enactments concerning takings, immunity for performing environmental audits, and resLrictions on the public's slanding to challenge the state agency's decisions have led EPA 10 question delegation of federal programs to that state. Legislation in several states either discourages or prohibits environmental agencies from applying more stringent protection sl3ndards than the bare minimum required by federal law. In other words, as the trend at the federal level is 10 put more trust in Ihe states, some states - al the behesl of regulated interests - appear to be proving that such trust mighl not wellplaced. So far in Arkansas, devolutionary trends have been absorbed, but blunted. In 1993 legislation, the costlbenefit craze was addressed by requirements more attuned to the state's resources See A.CA. 8-1203(b). Also in 1993, restrictions on citizens' standing to challenge PC&E permitting actions were enacted, but in tandem with very liberal public notice requirements See A.c.A. 8-4-203. In 1995. Arkansas balked at passing the most stringent neo-takings law in the nation; a Governor's Task Force is currently studying whether such legislation is needed in Arkansas.

ence was necessary in the 1970's because the states had failed to develop Ihe regulatory infrastructure necessary to deal with environmental issues. By the 1990's. however. most states have established regulatory programs that are more attuned to local environmental issues than the federal regulators in the regional offices or in Washington D.C. Generally. regulated interests support effons at the national level to grant more regulatory autonomy to the States. But look al what some are doing at Lhe state level. A committee of the Kentucky House of Representatives recently approved legislation Ihal would drastically roll back water quality standards and penalize private citizens who make com-

"CERTAINTY GENERALLY IS ILLUSION, AND REPOSE IS NOT THE DESTINY OF MAN." -OUYER WENDALL HOLMES In a speech delivered when he was Chief Counsel for the Senate Judiciary Committee, Justice Stephen Breyer noted Ihal the first proposal for regulatory reform at the national level was probably launched in 1881. simply because the first modem regulatory agency (the Interstate Commerce Commission) was founded in 1880 22 In the environmental debates of the mid-1990's, few seem to realize that similar regulatory reform themes have been debated for as long as administrative agencies have existed, and the philosophical issues at stake have hardly changed

Il Tb' IrlllltlllU"r



since Roscoe Pound squared off against "mechanical jurisprudence" at the turn of the century. Lost in all the rhetoric about "common sense" environmental regulation is the prescription offered by the man who coined the term as a political icon. In a September 1995 int.erview for Washington MOllthly, Howard disavowed many of the current trends in the States and Congress. The remedy for regulatory overkiU is not more regulations, Howard said: similarly, regulatory inflexibility can not be cured by placing more feuers on t.he regulators. 23 These principles are especially applicable to environmental regulation, which must calculate social policy at the fringes of scientific knowledge. The uncenainty inherent in environmental protection cannot be cured by legal fiat. In fact, as Lon Fuller observes, an appropriate sense of humility may be the most important first step toward mature environmental policy: Sometimes the best way to achieve clarity is to lake advantage of, and to incorporate into the law, common sense standards of judgment that have grown up in the ordinary life lived outside legislative halls.... [We cannot be more exact than the nature of the subject mattcr with which we are dealing admits. A specious clarity can be more damaging than an honest open-ended vagueness.]24 Similarly, Howard reminds us t.hat while the world and human nature are much more complicated than the "specious clarity" promised by volumes of regulations. this not necessarily reason for despair: "Uncenainty, the ultimate evil that modern law seeks to eradicate, generally fosters cooperation, not t.he opposite:' In The Death ofCommo" Sellse. 25 Howard's prescription for reform of environmental regulation is simple. practical. and only superficially radical: "Relaxing a lillIe and letting regulators use their judgment is the only way to liberate our judgmenl...lllf there is no flexibility for the regulator, there is no flexibility for us:'26 As discussed above, allowing the pendulum to swing back toward more discretion for administrative agcncies has historical precedent and may be the only alternative to adding another aisle in the law library for the Code of Federal Regulations. The most promising developments in ~o

Tbr \r~m'll.'l\!rr

Sunlnlrr 199&

environmental regulation are not pending rules, but innovations in implementing the broad principles of environmentaJ protection. At the national level, EPA's Common Sense Initiative focuses upon breaking specific industries out of the one-size-fils路all regulatory regime and tailoring regulatory standards to meet plantspecific potentials for pollution reduction. Programs such as Project XL and Performance Partnerships seek a refined federalism attuned to the realities of environmental regulation at t.he state and local levels. And through development of "environmental indicators:' EPA is finally looking beyond bean-counting permits and enforcement actions to the real world of environmental improvements. PC&E is developing nonadversarial ways to address compliance problems faced by small businesses or other people not otherwise privy to the arcane dialogue that created the body of environmental rules. New resources within PC&E, such as the Ombudsman and the Customer Service Division, try to help ordinary citizens to comprehend and meaningfully communicate their concerns within the regulatory process. And in the actual enforcement of environmental regulations, PC&E is increasingly focusing on whether real environmental improvement is being achieved, rather than whether a facility has been correctly filed under the appropriate regulatory acronym. None of these innovations require excruciating rulemaking. Instead. such mechanisms as strategic exercise of enforcement discretion. efficiently mustering already available government resources. or just basic education and technical assistance effons are the linchpin for achieving common sense results. These flexible approaches to environmental protection would not be possible under a regime that ties up agency resources with perfunctory takings and costlbenefit analyses or insists that the agency cannot act without reference to a detailed rule. The Death of Common Sense calls for agency discretion that is accountable for its accomplishments and failures through judicial review, political oversight, and traditional civil service principles. The goal is to release the expertise of agency staff to actually practice their professions, and to allow regulated entities the latitude to discover innovations in production as well as pollution control. As environmental regulation stumbles toward maturity.

hopefully the law books will find room for conscientious people in the public and private sectors to think for themselves. ( ote: The author is currently serving as Policy Advisor to the Director of the Arkansas Department of Pollution Control & Ecology. The opinions expressed in this article, however, are solely those of the author, and do not represelll official positions of the Department of Pollution Control & Ecology)

*Wem'er is OIl affomey for the Arkansas Department of Pollution Control & Ecology Endnotes I. James Boyd While. Justice As Translation: All Essay ill ellllUral alld Legal Criticism

33 (Uni\'. of Chicago Press 1990). 2. Lon Fuller, The Morality of Lalli 93 (Yale Univ. Press. Revised Edition, 1969) 3. ld. at 159. 4. Philip K. Howard, The Death of Common Sense: flow U1IV Is Suffocatillg America (Random House 1994). 5. Id. at 7-8.100-101. 6. Stephen Breyer, Breaking the Vicious Circle: Toward Effective Risk Regulation Continued on Page 44


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"What I discovered after a morning full of stories on a myriad of subjects was a guy with an office so wired for sound you would think Manhattan Transfer, Roberta Flack and Willie Nelson were performing live and in person right smack in the middle of a brand new office building in Paragould, Arkansas."



EXAMPLE by Sara Landis

Photography by Thomas A. Moore It's not a bad drive 10 Paragould. It allows one lime to reneet 011 past experiences and ponder future

ones. I found myself pondering what J Iilollfiill I already knew about Harry Truman Moore as I drove along.

Bowlies... cooking... l11usic... pholOgra-

LEFT: H.T. has been


hiS new offtce in Paragould since July 31, 1995. This is a corner of the library. RIGHT: HT believes in staying In touch with his fflends and clients, no

phy... Dcmocrat...hr11lTIm-dul] guy.

matter where he IS.

What I discovered after a morning full of stories on a myriad of subjects was a guy with an office so wired for sound you would think Mallha1l31l

Taken on the Main Street of Killarney under the sign post of The

elson were per-

Laurel's Singing Pub.

forming live and in person right smack in the middle

which was located

Transfer, Roberta Flack and Willie

of a brand new office building in Paragould. Arkansas. Someone who grills gourmet and collects

under the guidance of Wayne Boyce H.T. was calling him to let him

aprons. And a guy with a lot of bow-ties that match

know he had Indeed his vibrant. eclectic personality. So much for pre-conceived notions.

., Thr


1..\\).,. S,mmer 1996

located Wayne's favorite spot




1iIlrllllil uMlrr S•••rr 1m

Now about that name... "My Jarher's name was

011 Trul1JCl11

July 31. They met as slUdents at

Arkansas State. Wanting to be in close

Moore and my family have always been

proximity to their parents, they picked

yellml' dog Democrats."

Paragould as the plaee they wanted to

Moore was born in Lawrence County Arkansas in 1947. He attended Arkansas


,; I had the opportuJlity to look at com-

State University in Jonesboro and the

IIllmities all over the lSI Dislrict and all

Memphis State University Law Sehool,

over Northeast Arkansas and there were a

and the UALR Law sehool before gradu-

lot oj things abollt Paragollid I liked."

ating from the University of Arkansas

He's been there 21 ycars and has no plans

Law Sehool in Fayetteville. He was for-

to leave.


during his years


ASU to have a

Moore collects a lot of Harry Truman

job as Student Spons Information

memorabilia. He talks about Truman with

Director that allowed him to travel a 101

a twinkle in his eye and a rather melan-

more than the average college student.

choly grin - as if talking about an old col-

Even through all the traveling. he still

lege buddy.

retained a strong tie to his community and the people he grew up with.

"Myfirsl job out of college - I went to

"/ thillk one of the things I like


about him is he was always so straight fOlward with evel)lthillg he did. He also

lI'OrkJor Lambda Chi A IpllllJratel'llir.\'. I

had a real affinity for Ihe C011lmOll lila1/.

Il'orked the Mid West regio" the first

He also was a personallol'er of the

semester alld then I packed my bags and

arls... a IOl'er of politics in a different H'ay

wellT 10 the west coast for ten weeks.

jivm a lot of olher people.

which was a real experience. So / gOi to see all that part of the country." He left that job and went LO the east

"/fyo/I look back


the Presidellls -

here \I'as a person who. 10 fhis day. nel'er had his professional integrity or personal

coast - Washington in pal1icular. to join

life quesfioned. Yeah - occasiollolly he

Represemativc Bill Alexander's sHIrr.

u'o/ild C/ISS like a sailor - picked Ihm up

After a rew years law school beckoned.

in the miliwry of course - occasionally he

He was admiucd to the American

let his feelings be (l

University Sehool of Law. but waited a

lot more public Ihan

year and returned home.

they probably should

Shown on this page displaying the many "I got fO see a lot. but / always felT I H'allied to come back. "


Th' IrLanm I,a"!,r

Somm,r 1996

have been. bUI he had a fierce loyalty

He and his wife, Linda Lou, were

for his family and he

married on Moore's binhday 25 years ago

had a fierce loyalty

photographs he has taken over the years. Photography is one of H.T.'s favorite pasttimes

LEFT: Grilling is another favorite hobby. Shown here with his latest culinary creation and one of many colorful aprons. BELOW: Linda Lou and H.T. in the doorway of their home.

ABOVE: H.T. plays a private concert for his wife, Linda Lou, at his 1933 Wurlitzer Baby Grand Piano. RIGHT: H.T. and President Bill Clinton with the Harry Truman bust in the White House. for his job. he had a fierce loyalty for his COl/lIlly.

people can give back to the bar. "Trumall a/ways believed in public

He wasil', ashamed oj allY oj

After serving as PresidelH of the

Paragould-Greene County Chamber of

those things. He wa.m'1 ashamelllO fell

service and believed public service was

Commerce. Moore served two rare con-

people about it.

lhe high callil/g." Moore believes there

secutive terms as Chair of the Chamber's

about where he stood 011 an issue. And he

are many different ways people can do

lndustrial Committee.

had a real deep belief in the commO/1 man

public service.


and the ability of lite

/lever had a question


COl1l11l01l mall [0

He had coordinated the acquisition of

considered for a I/I//nber of differ-

over 700 acres of industrial properties, but

ent reasons n polilicnl career and lhe pos-

faced a real challenge when the

sibility of pllblic sen/ice tllere. I made a

Chamber's Executive Director resigned in

wardness and his affinity for the common

COJlscious decision a Jew years ago lhm I

the midst of negotiations with

man are some of the values Moore trys lO

did nol

industrial prospects. Through his period

accomplish things." Truman's directness and straightfor-

Irant 10

do lhat."

He decided instead to put his efforls

emulate in his own life. One of the things



of leadership, Paragould added over 1000

Moore has always been interested in. for

into community service first in Paragould

jobs with

lry to

and later in service to the Bar. Believing

sions by several existing industries.

get a broader perspective of the people of

both of those to be important. he has tried

Capital investment by these industries

the state about bar activities and the


things the bar can give them. He also

and the constituency he is now serving.

example, is bar work. He wants to

feels there are a lot of things those same

give something back to his community

Both have benefited from his efforts.


new facilities and expan-

totaled over 36.5 million dollars. Because of his efforts,Moore was

named the 1995 Volunteer of the Year by ~,




Summer 1996


Thl' \r~aml tlll)'r

SUUlmPl 1l9i

the Industrial Developers of Arkansas, becoming the first lawyer to win the


"He was a person who always led by

committee work. Bar work was simply something a member of that firm was

award in its 17 year history. He was also

example. And Ihat is one lhing people

honored for his work by the Southern

don't realize. He became Caprain Harry

Industrial Developers Council last

of his bara{{ion oul of Kansas City by

October aI its 50th Anniversary celebra-

being elected. At that time the praCTice


was to elect officers. And even though

way to the Bar Presidency, to which he

there were people with far superior physi-

was elected without opposition in

a term as Chairman of the Arkansas

cal abilities, he was the persoll who was

November, 1994. As a young lawyer he

Science and Technology Authority and as

elected and he was elected for his leader-

used his journalism background as a con-

President of the ASU Alumni

ship abilities."

tributor and editor of previous editions of

His community service also includes

Moore stems from a father who was


going to do. Fortunately, bar work was something

Moore enjoyed. He has touched all the bases on his

both the Senior Citizens Handbook and

very active in church and community and

Statute of Limitations guide. During his

ership in the Democratic Party of

always held positions of leadership there.

year as YLS Chair, Arkansas won two

Arkansas, including a term as Treasurer.

So from a very young age Moore and his

national awards from the ABA for special

He has served the First Presbyterian

siblings were used to being involved in

project and overall achievement.

Church of Paragould as an Elder, Sunday

something. From high school days in

School teacher, musician and choir mem-

student government to college days in

Section, and was the Editor and a contrib-


publications and fraternity, Moore has

utor to the recent revision of Volume I of

always participated. He was taught at

the Family Law system. He has chaired

to Truman because of the problems he

home that if you are going to participate

and served on numerous other bar com-

had as a "be-spectacled" person and the

in something, you need to give something


trials and tribulations that caused him as


He has held several positions of lead-

Moore says he has feelings of identity

a frustrated young athlete and the prob-

When Moore went lO work for his

He has chaired the Family Law

He has served on the Supreme Court

Child Support Chart and CLE

lems of trying to wear glasses in a pre-

law firm, one of the things the firm was

Committees. A frequent presenter on

contact lens stage. Truman had those

involved in was bar activities. Maurice

Family Law issues, he has been honored

same problems as he tried to work his

Cathey was a former President of the

with five "Best of CLE" awards.

way up in the military. One of Truman's

Arkansas Bar Association (1966-67) and

biggest fears was being in a combat situa-

a member of the House of Delegates

lic image of lawyers is terribly important.

tion and losing his

when it was first organized. Gerald

It hurts him to read negative articles in

glasses - which

Brown, a former partner of the firm. was

the papers about lawyers.

aClUally ended up

the first delegate from that bar district.

happening to him.

Senior firm partner Ray A. Goodwin and

about good things lawyers do, tuzyt;me

Moore admires

fonner firm partner Donis Hamilton are,

lawyers do sometlll'ng they should /lot

Truman's leadership

with H.T.. Golden Gavel winners for bar

have, llnytime lawyers make a mistake -

OPPOSITE PAGE: H.T. shares a laugh with visitors in the library of his

Moore says that the issue of the pub-


For every short story alld every blip

new office. ti l'hr .\rkanm I,lll}rr

Summrr 1996

this is what makes from page news and I don't think we have done a good enough job talkil/g abow the good things lawyers do. The things lawyers do not ollly for their diems bw for their cOllll1l1mities." According to Moore. he is very interested in what the Arkansas Bar Association is doing for its members. He plans to meet directly with as many local bar associations as possible. He hopes to continue dealing with a lot of issues that are out on the table right now... lawyer advertising...the delivery of legal services... bringing back to the membership the percentage of lawyers that once were members. Moore says he enjoys lawyering. There are times when he thinks it would have been fun to give himself to public

office, but when he sees what happens to people who give themselves to public office. he knows he's not missing out on anything. There are times he still likes to sit down and write and times he likes to take out his camera and shoot pictures. Lawyers do not always get to utilize their creative sides. But Moore says he enjoys

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helping people through their situations and is doing what he has always wanted to do.

And now being the new bar president. he'll be able to do as his mentor did and lead by example.



\r~maj I.ltl)rr

Sunlnlrr IlY6

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performs medical record reviews which include a chronology, standards of care and a research-based analysis. Settlement brochures and other discovery assistance services are also offered. Let us focus on the medical aspects of your case so you can focus on practicing law.

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Did Ihe Burger [ourl roll bock Ihe Warren [ourl's conslilutionol revolulion? Or was il actually 01 octivisl os its predecessor? Ihis conference will examine Ihe cour/'s jurisprudence and its place in Ihe low and life of Ihe notion.


october 1-3, 1996 1he University of 1ulso College of Low

HhlURtD ~PfAKfR~ Shirley Abrahamson Finn Backer Derrick Bell Martin H. Belsky Robert F. Drinan, S.J. David J. Garrow John J. Gibbons Lino Graglia Robert Henry Anthony Lewis Tony Mauro Joseph M. McLaughlin Alan Morrison Burt Neuborne Stewart G. Pollock Bernard Schwartz Stephanie Seymour Mark Tushnet

• CLE credit applied for in Arkansas • Special fees for professors, students • For additional information, call

Vicki Jordan atTU at (918) 631-2430; E-mail to, or visit our web site at hltp:/ Patron Sponsors Charles and Lynn Schusterman Family Foundation Pray, Walker, Jackman, Williamson & Marlar Sponsor Conner & Winters Associate Sponsors Doerner, Saunders, Daniel & Anderson James, Potts & Wullers McGivern, ScolI, Gilliard, Curthoys & Robinson Riggs, Abney, Neal, Turpen, Qrbison & Lewis Secrest Hill & Folluo The Williams Companies, Inc The University of Tulsa IS an EO/AA institution.


Legal Aide For Tornado Victims Spins Better Image for Arkansas Attorneys by Stacey DeWitt Photography by Kaia Larsen/Press Argus Courier "Most attorney's don "I bite:" jokes

County Bar put together an assistance


apparently not.

David Vandergriff. President of the


Sebastian County Bar. The general

and with the help of the Young Lawyers

publics fear of lawyer:;. even when they

Division of the Arkansas and American

tioned handout. Cathie Porter. the TLSP

are trying to help, is something

Bar Association. the Federal Emergency Management Agency (FEMA) and the

coordinator. says that many times people

Crawford/Sebastian Volunteer Attorney

lawyer. They will tell Porter their prob-

Vandergriff has experienced personally. ow. he is leading an effort that may help

area auomeys volunteered

Due to attorney's image problem. citi路 zens are tentative about the well-inten-

hang up when she suggests they talk to a

at least the Fan Smith public overcome

Project. Tornado Legal Services Project

lems. but fear a lawsuit beckons when an

its suspicions of well-inlcntioned bar

(TLSP) was formed. Who better than a

attorney gets involved. After some reas-

members. After a devastating tornado deposited millions in destruction in


Arkansas. Vandergriff and the Sebastian

lO no

\r~lIllS I.all)'t

Su"." 1995

lawyer to help victims unravel the red

surance and nudging. the ones who stay

tape of an out of state insurance compa-

on the line find just talking with an altor-

ny? Especially if its free! Surely victims

ney may help solve eviction problems.

arc standing in line for the service. But.

disputes with contractors or simplify the

KFSM-TV broadcast a story on the

effort as did the

Southwest Ti mes Record. Vandergriff

has been quoted as saying things like,

People Deserving a Special Mention... CATHIE PORTER is currently working with a victim who was in the hospital for 40 days. She was blown by the tornado from her rent house (which was destroyed) and landed in an adjoining field. She had quite a bit of debris imbedded in her leg, and when she was just about ready to be released from the hospital, she suffered a staph infection, all of which necessitated

40 consecutive days in the hospital. Cathie is trying to find someone who can assist her with a number of problems

caused by the tornado and has agreed to do

Volunteer lawyers

all of this on a volunteer basis.

are prohibited from

â&#x20AC;˘ GARY UOOUJ (Warner & Smith) paid $1,000 out of his own pocket to bring in Ina DeLong, who is the leader of an organization called United Policyholders. She

charging anyone who

calls the TLSP referral hotline and most s:-.I!!!'!_~

attorneys attended a training session organized by Vandergriff so that real help was available when vic-

tims called. The Crawford/Sebastian Bar efforts could be a public relations coup. The one to one contact can often convert a tentative victim into a cheerleader for the legal

profession or at least for the individual attorney who helped.

Vandergriff has effectively used the free media so that the multitudes will know about the individual efforts.

gave seminars and answered questions

"People need to understand that we're

about policyholders' rights in a disaster.

here to work for them." Others who are

Gary contacted bar associations in other area where disasters struck and obtained a

working with the project are spreading

the message that lawyers do a lot of free

great deal of information that helped to set up the Sebastian/Crawford County pro-

legal work, but don't usually get credit


for it.

The TLSP is a substantive bar effort that will put any slick advertising cam-

paign to shame. It's good people doing good works and getting credit for it. It

would be hard to find a beller spin than that.

a property claims supervisor for the Trinity Companies in Alexandria, Louisiana, flew commercially

â&#x20AC;˘ BODny WALLACE,

(at his company's expense) to Fort Smith for the training and coordination session at

Westark Community College on May 8, 1996. Bobby had laryngitis and could barely speak, but he provided copies of a number of policy forms and imparted valuable information concerning the various

coverages under different types of policies. BILL RAHN, Director of The Resource Coordination & Training Unit for Arkansas Legal Services Program, put together an 8-page summary of landlord/tenant issues and drove from Little Rock to Fort Smith to speak at the training and coordination session.

SHELLY MOORE, a lawyer with the Arkansas Attorney General's office Consumer Affairs Division, drove from

Lillie Rock to speak at the training and coordination session. Please call or write with any local bar news and/or happenings so that it can be included in this new column. 501/375-

4606, 800/609-5668 or 400 W. Markham, ~I



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Waterlilies/Monet 1914

A Checklist of Arkansas Common Law and State Government Controls Applicable to its Use I. I TROD eTION Unlike coal. natuTal gas, or oil, water is a nalural resource that is often taken for granted. We sometimes fail to recognize that an adequate supply of quality water is needed 10 support agricultural and industrial operations along \Vilh residential water users. Wildlife and many recreational activities are also dependent on water. The availability of quality water for these and other uses is often overlooked.

Some areas of the slale currently. or may in the future, find themselves with inadequate supplies of water of sufficient quality to support certain desired uses. Even in areas generally perceived to have sufficient water supplies. individual properties or facilities may have deficiencies. The existence of an adequate supply may not be the only issue. Also relevant may be the accessibility of this resource. The accessibility issue C~]Il have two aspects. Whether a propeny or facility has the physical

II Tit \ru'IilIJ~)/f

S...ff Illi

capability to transport or has access to water is important. However. the question of whether there is a legal right to a given quantity of water is equally imponanl. The absence. availability, access to or presence of water can therefore be an important attribute of some properties or facilities. Whether this is a positive or negative depends of course on the circumstances. For example, a property adjacent to a large stream may enjoy the benefits of access to water for industrial. agricultural or recreational purposes. In contrast. a facility that is nOI contiguous to surface or groundwater may be deemed disadvantaged because of its dependence on a water source over which it has no control. Of course. the movement of water such as wet weather nows across a propeny may in some instances constitute an operational expense or liability. Water related issues are accordingly a key concern for aLlorneys advising clients in relation to a variety of transactions and projects. Determining

the respective rights and obligations related (Q water can require the identification and analysis of some often subtle legal issues. These issues range from a facility's ability to divert and lise water (Q a clarification of access or property rights related to a non-navigable stream. A collection of common law decisions. statutes, and regulations alone or in combination must be reviewed to address these and a variety of other issues. Concerns about the availability of water in some areas of the state has resulted in the enactment of limited state governmental controls. These statutory or regulatory controls could be expanded in the future and should be considered in evaluating those projects or transactions in which water use or management will playa key role. Also potentially relevant are programs enacted by the Arkansas legislature that provide incentives for certain types of water resource facilities. These programs might playa positive role in some projects. The goal of this article is to list and briefly summarize the key common law decisions. statutes. and regulations that affect the use or management of surface water and groundwater. The interaction of these judicial decisions and governmental controls, along with their potential impact on properties and facilities, is also briefly addressed. This anicle will not address the various federal and state pollution control statutes and regulations that protect groundwater and surface water quality. Please note that this article is not intended to be an in-depth survey of the subject. For a comprehensive analysis of Arkansas water law including detailed discussions of the various public policy issues, the reader is referred to the excellent series of articles by Professor l.W. Looney of the University of Arkansas School of Law1 II. USE AND AVAILABILITY OF WATER A.GENERAL Available water exists in two forms: surface water and groundwater. Surface water is found in lakes, rivers, streams. bogs, and marshes 2 Groundwater occurs in aquifers and Inay be defined as water in the saturated zone that is under a pressure equal to or greater than allnospheric pressure. 3 An aquifer is a waterbearing layer of rock that will yield water

in useable quantity to a well or spring. 4 Though a limited resource, water is needed by many. Economies are dependent on it, as industry and agriculture cannot survive without it. Some industries evaluating various sites for a facility will consider the availability of quality water just as they do other factors such as energy costs. Cities and individuals demand it for drinking and other domestic purposes. Water is also in demand for its recreational and aesthetic value. As fishing, boating, and other water-related activities become more popular, many people desire to live or vacation on lakes and rivers. Additionally, wildlife and vegetation are dependent on water for their existence. Though in some areas water is abundant. others have a limited amount which may not be able to satisfy multiple or inconsistent uses. In determining which of these competing uses have priority, the water's quality, quantity, and availability must be considered. When faced with a proposed use, the first concern is the availability of water for that use. Even if the area is one with large amounts of water, the costs of gaining access to the supply may sometimes be prohibitive. If the water is in an aquifer, it must be pumped through a well, or if it is located off of a tract of land, the water must be transpoJ1ed. Storage is sometimes a necessary component of the system, panicularly in the case of surface water. Such alternatives may not be economically or technologically feasible in some instances. Even if access to the water is possible, the actual quantity or quality of the available water may be inadequate. Substances found naturally in a particular body of surface or groundwater may impair certain uses. For example, the Arkansas River contains high levels of chloride due to naLUrally occurring saltbearing rocks in Oklahoma. S Of course, pollutants generated by various human activities Illay also diminish the usefulness of some water bodies: a stream receiving an excessive amount of organic effluent from manufacturing facilities may not support a cold-water fishery because of the reduction in oxygen levels. Similarly. a groundwmer aquifer could be threatened by contaminants generated by a variety of activities. 6 In addition to quality and availability, the quantity of available water must also

be considered. The source of the water may be one that will be quickly depleted and slowly recharged. Additionally, the supply may not be a constant one, but may vary with the seasons. For example, during the hot summer Illonths a decrease in quantity may resull from evaporation losses or from increases in demand by irrigators or other users. This may be a key consideration since some uses require access to a minimum quantity of water over the entire year. B. ARKANSAS Arkansas has abundant amounts of both ground and surface water. 7 However, the resource sometimes has to be allocated among multiple competing uses, including agricultural, industrial, and municipal demands. 8 This human activity has a substantia] impact on both the quantity and quality of Arkansas' water9 When these quantity and quality issues are combined with the availability and location problems, Arkansas' supply of useful water does not appear as plentiful. The Arkansas Soil and Water Conservation Commission ("ASWCC") and the Arkansas Depanment of Pollution Control & Ecology should be considered two key sources of informmion about Arkansas water resources. Arkansas uses approximately 4.76 million gallons of water per day, and this use is expected to increase by 140% as additional cropland is put under irrigation. 1O Eighty percent of this demand is supplied by ground watern The majority of these ground water withdrawals are used for irrigation purposes. 12 Though Arkansas receives sufficient precipitation to recharge its ground and surface water supply, excessive withdrawals may be depleting ground water sources in some areas of the state .13 For example, the pumping rate of the alluvial aquifer of eastern Arkansas exceeds the rate of recharge by as much as 17%14 If this overdraft continues, well yields may fall, and ultimately, the aquifer may be a lost source. IS Inseparable from these quantity issues is the quality of water. The aquifer overdrafts are critical not only because the source is being depleted, but also because they may degrade the quality of the water. The large withdrawals may increase the salt uses. 16 Additionally, industrial discharges. as well as human and animal wastes, can, if excessive,

II Hr .Irlllm 1,1.!rr

Summrr 199&

harm water quality ,17 The use of water to irrigate may in some instances, increase the sediment levels .18 Both Arkansas and federal programs exist whose goal is the protection of surface Waler quality through the attainment of water quality standards. 19 Water quality standards are provisions of federal or state law that list or determine the use or uses of a certain segment of a waler body. The level of water quality that will be necessary to support the designated uses is determined by these standards. 20 Arkansas, like other states. has set designated uses for most water body segments. 21 Anyone considering the use of a given water body may want to review its designated uses. Unlike surface water, neither the federal government nor Arkansas has a comprehensive program in place whose purpose is to maintain groundwaler quality. Specifically, there are no mandatory groundwater quality standards nor any permitting program. Instead, groundwater quality is somewhat haphazardly protected by diverse stale and federal programs thal regulate specific activities that may generate potential contaminants. Those include. for example, sanitary landfill standards, underground storage tank requirements and pesticide use and disposal requirements. 22 While Arkansas has a shortage of groundwater in some areas, the state does have excess surface water. 23 There has and continues 10 be interest in encouraging a greater use of surface water. The dilemma has been the facl that utilization of surface water is sometimes more expensive. The Arkansas legislalure has therefore enacted a program that seeks to encourage greater use of surface water. II is intended 10 mitigate somewhal the cost of building the storage and collection infrastructure necessary to utilize surface water.

III. APPLICABLE LEGAL REQUIREMENTS Water is clearly a resource necessary to all and subject to conflicting demands. As a result. questions involving ownership and the priority of various uses of water can arise in many situations. For instance. an allorney advising a client about the acquisition of property or a facilily may need to determine whal rights exist, if any, to any contiguous surface or groundwater. The importance of

16 Th' Irhnl'l!',"),r

Summrr 1996

this issue would be driven by the proposed use of the property or facility and the corresponding WaleI' demand. The question might become more complicated if the proposed source of water is not contiguous to the property or is localed in :I different watershed. Research in this area begins with the common law. Various key principles still govern many issues. Various Arkansas statutes and regulations supplement, and in some cases supersede, this body of case law. While they apply potential restrictions in limited instances, they also provide an opportunity for clarifying or quantifying available water rights.



I. Right to se Water. In the United States C' .5."), the use and allocation of surface water is generally governed by one of two common law doctrines: the prior appropriation doctrine or the riparian rights doctrine. The basic premise of the prior appropriation doctrine is that those who lise the water first have a legal right to the continued use of that water, The main limitation is that the water be put to Hbeneficial use." This approach is followed by the majority of states in the western U.S., where the resource tends (Q be more scarce. The riparian righls doctrine, on the other hand, is followed by most of those states, including Arkansas, which are considered to have a more abundant supply of water. 24 Under this doctrine. Ihe right to use water exists by virtue of the ownership of riparian land. Because all owners of land abutting the water course have equal rights to the water, each riparian is limited in terms of quantity and purpose to "reasonable use" of the water. This test gives due regard to the rights of the other riparian owners and prohibits one riparian from using the water in a way thaI will cause "unreasonable damage to other riparian O\vners:,25 In adopting the reasonable use theory. the Arkansas Supreme Court clarified the doctrine. 26 Fishing. swimming, irrigation. and recreation are all considered lawful uses. Among the lawful uses, the right to use water for domeslic purposes. such as for household use. is superior to any other use; behind domestic use, however. all other lawful uses are equal. When one lawful use of water interferes with another, the reasonable use inquiry will be applied to the facts of that particu-

lar situation to determine if the interfering use should be enjoined or an equitable adjustment made. The reasonable use test will not allow one lawful use to destroy another lawful use. Under the common law, riparian owners were prohibited from transferring water to an off-tract use. 27 In HarrellI'. City of Conway. the city impounded water by constructing a dam across Cadron Creek. The City of Conway wanted 10 use that water as its municipal supply, and thus sought to enjoin rice farmers from taking water from the creek whenever the water depth fell below 6 feet. Wi thou I specifically adopting the reasonable use theory of riparian rights. the court noted the city's plan to remove the water from the watershed and sell it commercially would not pass the reasonableness test. 28 Though such transfer restrictions were intended to protect riparians. they also have the potential to discourage investment and economic developmcm, and prevent maximum beneficial use of the water. Accordingly, the prohibitions on water Iransfers were slowly relaxed,29 and presently, Arkansas, like Illany states, has statutory and regulatory provisions that may, to a certain extent, supersede these common law restrictions. 30 Consistent with its approach to surface water, the Arkansas Supreme Court has also adopted the reasonable use rule for ground water. 31 Landowners can make reasonable usc of underground water. As demonstrated in Jones v. 0:.Ark-Val POLlltry Co.. this doctrine prevents one landowner from unreasonably harming other landowners. In that case. the Arkansas Supreme Court found that a poultry processing plant's use of subterranean water was unreasonable where it caused the defendanl's well to run dry. The uncertainty and expense associated with groundwater modeling has probably limited the number of disputes to this point. Though the reasonable use approach to surface and groundwater appears fair. the doctrine arguably sacrifices predictability. The reasonableness test is a subjective balancing of particular facts 011 a case-by-case basis.3 2 As a result. a riparian owner's rights are difficult to quantify. When a riparian tract is sold and the water put to a different use. the rights of the neighboring riparians may have to

change to accommodate that new use so long as it is reasonable. Even if the circumstances enable one to reliably quantify Ihe available water rights at a given point of time, circumstances can change. Events beyond the control of the landowner could change the components used in the calculation. Such events might include the arrival of additional users of the water body. Likewise a drought or other event might reduce the amount of water deemed available under the reasonable use theory. Because of this difficulty in quantifying water rights, advising a client who requires access to a specified volume of water cannot be done with certainty in some instances. 2. Access and Ownership Issues. Though a riparian owner does not own a property interest in the water itself, ownership of the land underlying a body of water is an issue. The answer to this queslion turns on whelher Ihe body of water is considered "navigable". The test for navigability is whether the body of water is potentially useful for commercial purposes, not whether it has actually been commercial purposes in the past. 33 The previously cited definition was expanded in State v. MelII'oy, which involved the Mulberry River. The Arkansas Supreme Court held that the recreational value, as well as the commercial value of a water body, can be considered in determining navigability. 34 Moreover, a body of water does not have to be floatable year round. Rather, a water body is deemed navigable if it is capable of transporting materials for part of the year35 With a non-navigable stream, the common-law presumption is that a riparian landowner's property extends to the thread, or center, of the stream. 36 To rebut this presumption. a grantor must expressly reserve rights to the stream in the deed; describing the property as running "to the bank" of the stream is not enough to indicate such an intent. 37 The riparian owner of a navigable stream has rights only to the high-water mark. 38 which demarks Ihe bed from the bank. 39 The stale holds the ownership interest in the bed. 40 The high-water mark is indicated by the existence of vegetation and the state of the soi1. 41 Thus, a riparian's rights include the right to free ingress and egress from his property to

the water. However, unlike a landowner along a non-navigable body of water, a riparian owner on a navigable stream may not have the righl to keep others out of the water in front of the riparian property or even the right to prevent others from using the shore between the high-water mark and the water's edge, as long as that use does not unreasonably interfere with the riparian owner's use. 42 An interesting issue that has not been squarely addressed by the Arkansas courts is whether and under what circumstances the public may gain access to a non-navigable water body through a prescriptive easement. In addition to considering the issue of who owns the bed, the determination of navigability may also answer the question of who may use the surface of the water. Because the bed of a navigable water body belongs to Ihe state, the public has a right to use the surface. 43 A riparian owner may not prevent anyone from such use unless that use unreasonably interferes with the property owner's use. Unlike a navigable water body, the private ownership of a nonnavigable water body bed limits the use of the surface to riparian owners. However, Ihe method in which such use is allocated among those owners is unclear. Wilh regard to nonnavigable lakes, some jurisdictions follow the rule lhat all riparian owners own to Ihe center of the lake in a pie-shaped fashion and all possess equal rights

to the enjoyment of the lake. However, some jurisdictions have recognized an exception for lakes which provides that when the deed describes property along easily identifiable boundaries, such as land lines or metes and bounds, the party owns the bed along those lines and may exclude others from the portion of the lake lying upon the landowner's land. Arkansas case law does not definitively address this issue. 3. Drainage Management. Water and its movement sometimes poses a problem for landowners. This is particularly true for wet-weather flows. A common dispute is the ability of a landowner to prevent surface water from flowing across his land. Because of the costs sometimes related to run-off, landowners sometimes view water in this form as an unwanted expense. The law of surface water run-off in Arkansas gives a landowner the right to prevent surface water from coming onto

li Thr ,Irkanm talt},.

S,mmrr 1996

his property, as long as he does not unnecessarily damage any neighboring land. 44 In Pirrle v. Opeo. Inc., a rice farmer constructed a road thaI prevented rUIl-off from flowing across his fields. This obstruction caused the plainliff's land to flood and made it unfit for natural use. Referring to other, less injurious alternatives, the court found that the dam did unnecessarily damage the neighbor's property. The defendant was ordered to provide for the natural drainage of the water from Ihe plaintiff's land. Though a landowner may defend his property against surface run-off to a reasonable extent, he has no right to obstruct the flow of water within a natural walercourse. 45 In Boyd v. Greene Coullly, a farmer caused the flooding of a county road when he built a levee to divert runoff. Greene County brought suit, claiming thaI the run-off water was actually a watercourse, and the farmer, therefore. had no right to obstruct the flow without paying for the resulting damage. Staling that a natural watercourse has a definitive channel with a bed and banks, the court concluded Ihat the evidence at trial indicated that the flow at issue was nothing more than surface run-off. The court, therefore, remanded the case for a determination as to whether the defendant could have chosen a less damaging way 10 defend against the run-off waleI'. B. ARKANSAS STATUTORY/ REGULATORY PROGRAMS 1. Governmental Controls. The state of Arkansas has had in place limited statutory authority over waleI' use since Ihe 19505. These authorities have been expanded somewhat in the last ten years. The ASWCC is the agency that administers the key water use authorities. It has promulgated several sets of regulations to implement these statutory authorities. (a) The General Use and Allocation of Water Resources: Ark. Code Ann. ยง 1522-20 I er seq. (1994) and Ark. Code Ann. ยง18-15-702 er seq. Ark. Code Ann. ยง 15-22-20 I er seq. (1994) establishes the power of the ASWCC to issue permits for the construction of dams, issue certificates of registration for waleI' diverted from streams, allocate water from streams during times of shortage, and conduct hearings and issue orders related to these other powers. Ark. Code Ann. ยง 15-22~S

Thrlrkanm tall.ltr Summrr 1995


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205. A pennit issued by the ASWCC is

Another set of ASWCC regulations

neces ary for the construction of a dam which impounds more than 50 acre-feet

relevant to water resources projects are

of water or which is morc than lwemyfive feet high. Before granting a permit for a dam. the ASWCC must give notice and allow imerested pan ics to make their opinions known concerning the construction of the dam. 46 Other statutes

addressing the erection of dams can be

found at Ark. Code Ann. § 18-15-702 el seq. Anyone who owns the land on either side of a non-navigable stream may erect a dum across the stream. Ark. Code Ann.

§ 18-15-703. However. if the dam is likely to cause overflow of the stream to property owned by others. the builder must first file a peLition in circuit court.

and the judge may then issue an order providing for the erection of the dam. or. in his discretion. may consult a jury to get its opinion.

Ark. Code Ann. § 15-22-20 I el seq. requires any person diverting water from a stream. lake. or pond to register that

diversion with the ASWCC. The statute also gives the ASWCC the power to allocate water in periods of shortage, laking into consideration the priorities of sus-

taining life. maintaining health. and increasing wealth.

The ASWCC is also provided the authority to allow transfer of surface

water (0 a non-riparian under specified conditions. The ASWCC Illusl consider whether excess surface water is available for transfer to non-riparians in light of the future water needs of the basin of origin. A key issue is. therefore. what constitutes "excess surface water." This is defined by

the ASWCC regulations. The Title III regulations provide the procedures for operating these programs and further delineate a variety of key terms. It addresses water diversion. registration allocation during shortages. and

permits for intrabasin and interbasin transfers to non-riparians. Affected water users should recognize the need to main-

tain compliance with the relevant procedures. For example. a failure to register a covered diversion may jeopardize water rights during a shortage. Further. the procedural requisites for transfers to nonriparians should be carefully considered. This authority may provide the opportunity to avoid the common law uncertainty related to transfer to Ilon-riparians.

found in Title VI (Rules for Water Development Project Compliance with the Arkansas Water Plan). An example of a mailer recently before the ASWCC pursuant to the Title VI rules is III The Maffer

Or Benton COli"')' Rural

DeI'elopmellt Authority. Area ··B:· WPC #950727-375 (Final DeterminationArkansas Water Plan Compliance). It involved a review of an application by a water authority 10 determine compliance with the Arkansas Water Plan for a proposal to serve an area that includes the proposed regional airport in northwest

Arkansas. (b) Arkansas Groundwater Protection and Management Act. Ark. Code Ann. § 15-22-90 I el seq. (1994). The Arkansas Groundwater Protection

and Management Act. Ark. Code Ann. § 15-22-901 et seq. (1994). gives the ASWCC the power to develop "a com-

CGWA 1995-1. 2. Governmental Incentives and Related Programs.

(a) Water Resource Conservation and Development Incentives Act. Ark.

Code Ann. § 26-51-1001 elseq. This program was enacted by the Arkansas legislature to provide income tax credits 10 farmers and other users of groundwater to encourage them to use surface water when available and to use all water more efficiently. An important distinction to keep in mind when review-

ing this stalule is whether the particular water-conservation project is located within a "critical groundwater area." which is defined as "those areas that are

designated by the ASWCC pursuant to the Arkansas Groundwater Protection and

Management Act, § 15-22-90 I:· Al'ailable ({Lf credits. The available tax credits fall in three general categories: (i) Wmer impolllldmell1s. Sections 26-51-

prehensive groundwater protection pro-

1005 and -1006 provide an income tax credit equal to 50% of the cost of con-

gram:· Ark. Code Ann. § 15-22-906. This statute allows the ASWCC to designate

structure of 20 feel or higher to be used

certain areas as "critical groundwater areas" and to require that a property owner have special '·water rights'· before he can withdraw groundwater from the

property. If the ASWCC designates an area as a critical groundwater area, property owners who already regularly take water from

wells in that area may apply for a water right from the ASWCC and receive the right to withdraw water equal to the average quamity of water withdrawn over the past three years. For property owners who do not already take water from wells in an area designated as critical but who apply for water rights within the area. the

ASWCC has broad discretion in determining whether any new water rights

should be issued. The statute does not empower the ASWCC to regulate the withdrawal of groundwater from any well with a maximum flow rate of less than

50.000 gallons a day or for individual household wells used exclusively for

structing and installing an impoundment for storing water for agricultural irrigatioll or industrial processing. Key points include: Limits all the credit. The credit cannot exceed in one year the lesser of the total

income tax due or 59.000. Carry-Ol'er. The tax credit. if unused. can be carried over for up 10 nine years following the year in which it originated. ote that unlike other sections of this

statute. the credit is worth 50% of the cost of construction regardless of whether the water impoundment project is located in a "critical area·' or nol. (ii) Swface water COlll'ersioll. Sections

26-51-1007 and -1008 provide income tax credits for costs involved in implementing projects which reduce use of groundwater and substitute the use of groundwater. in industrial. agricultural. and recreational settings. Key points

include: The credit is worth 50'i!- of the cost of the project if the project is in a ··critical area:'

domestic use. An example of the

The credit is worth 10% of the cost of the

ASWCCs work in addressing the critical

project if the project is not in a critical area. Carry-over. The tax credit. if unused. may be carried over for a maximum of two years after the year in which it originated. Limits on t!le credi/. The credit cannot exceed in one year the lesser of the total

groundwater area issue is found in the

January 1996 Record of the Designation Process I" Re: The Desig"lIfion of the Sparta Aquifer Within Bradley. Calhoun Columbia, Ouachita and Union COl/llties As A Critical GroufldwlIfer Area No.

income tax due or $9.000. Seclion 26-5 I-I 009 (iii) Lal/d levelil/g. provides income tax credits for costs involved in leveling agricultural land in order to conserve irrigation water. The credit is wonh 10% of the costs associated with leveling the land. Umits 011 the credit. The credit cannot exceed in one year the lesser of the Iota I income tax due or $9,000. Carf)'·ol'er. The tax credit. jf unused, may

be carried over for a maximum of two years after the year in which it originated. In order to obtain the tax credit under this statute. the taxpayer must obtain a certification from Ihe ASWCC. If Ihe ASWCC

approves the lax credit. the taxpayer must file the cenification with his/her lax return the first year in which helshe claims the credit The water impoundment. surface water conversion. or land leveling project must he completed within three years after the ASWCC issues the certification or the tax credit will have to be repaid to the state Revenue

Department. Costs associated with running the water project incurred after the initial issuance of the certification may be claimed for the tax credit. subject to the other limitations mentioned above. (b) Arkansas Private WeIland and Riparian Zone Creation and Restoration Incentives Act. Ark. Code Ann. § 26-5 11501 el seq. (Supp. 1995). The Arkansas Private WeIland and Riparian Zone Creation and Restoration Incentives Act. Ark. Code Ann. § 2651 150 I el seq. (Supp. 1995). provides incentives to any taxpayer who develops projects to restore or protect wetlands and areas along the banks of rivers and streams. "Wetland" is a term defined by Section 404 of the Federal Water Pollulion Control Act ("FWPCA"). 33 U.S.c. § 1404. The provisions of this program are similar in many respects to the terms of the Water Resource Conservation and Development Incentives Act. Any taxpayer who spends money developing or protecting wetlands or riparian areas is entitled to a credit in the amount of money spent. Ark. Code Ann. § 26-511505(b)( I). The annual credit may not exceed the lesser of the amount of corporate or individual income tax owed or $5,000. In order to obtain the credit, the taxpayer must first obtain approval from the ASWCC and. when the tax return is filed,

it must include with it a certificate of tax credit approval. If a taxpayer claims this credit, the conservation project must be functioning within three years of obtaining approval from the ASWCC and must be maintained for len years. (c) The Arkansas Wetlands Mitigation Bank Act. Ark. Code Ann. § 15-22- 1001 el seq. (Supp. 1995). In order to promote the restoration and conservation of wetlands in Arkansas. the Arkansas Wetlands Mitigation Bank Act. Ark. Code Ann. § 15-22-1001 et seq. (Supp. 1995). creates "mitigalion banks:' or publicly owned and managed weIland areas to offset losses to wetlands caused by activities which olherwise comply with state and federal law. Under this statute, when a permittee, operating under a permit issued pursuant to Section 404 of the FWPCA. is required 10 mitigale damages caused by dlcdging or filling in a wetlands areas. the permiuee may fulfill his obligation to mitigate through the purchase of credits issued by Ihe ASWCC. Ark. Code Ann. §§ 15-22-1002 - 1004. The credits are Ihen 10 be used by Ihe ASWCC to restore and maintain the publicly owned miligalion banks. Id. at § 1522-1004. (d) Regional Water Distribution Act. Ark. Code Ann. § 14-116-102 el seq. (1987). The Regional Water Distribution Act. Ark. Code Ann. § 14-116-102 el seq. (1987). passed by Ihe Arkansas legislature in 1957. provides for the crealion of public. nonprofit regional water distribution districts for the purposes of acquiring. purifying and treating. lransponing. and distributing water resources. Ark. Code Ann. § 14-116-102. The Arkansas Supreme Court in Lyon \'. White Rh'erGrand Prairie Irr. Dist. clarified that besides municipal and industrial uses. the statute included the establishment of water districts for agricultural purposes. 47 To establish a water district. one hundred or more qualified voters living or owning propeny within Ihe boundaries of a proposed district must petition the circuit court in the county in which the proposed district is located. The petition must include a statement demonstrating the need for the water district, the location of the district, and the expected benefilS of Ihe dislrict. The circuit clerk must send the petition to the ASWCC who will review the petition and make findings as to whether

the water district can achieve its purposes and whelher il would promole Ihe general welfare and aims of this statute. The ASWCC is then required to send its findings to the circuit court. which will give notice in the newspaper to residents of the district and will detennine. after a public hearing. whether the water district should be established. Ark. Code Ann. § 14- 116-205. Before or after the circuil court issues an order approving a proposed district. any propeny owner may petition the circuit court to have his property excluded from the district for agricultural irrigation purposes. Under the lerms of Ihe slat ute. a regional water district is governed by a board of no fewer Ihan Ihree directors. each of whom is a registered voter residing within the district. Ark. Code Ann. § 14-116-301. After it is created and the board established, the water district has the power to acquire. store. and sell water: to construct facilities to store water; to acquire property for use in distributing water: to borrow money and issue bonds: and to exercise the right of eminent domain. (e) Arkansas Water Resources Development ACI of 1981, §§ 15-22-60 I el seq. (1987). The Arkansas Water Resources Developmenl Act of 198. §§ 15-22-60 I et seq. gives the ASWCC broad powers 10 develop and regulate water resources projects and provides for the issuance of bonds to finance its projects. Ark. Code Ann. §§ 15-22-606-605. To issue the bonds. the ASWCC must first submil a plan to the Governor detailing how the revenue from the bonds would be used. After consulting with the Arkansas Legislative Council. the governor then has discretion as to whether to order that bonds be issued. The bonds are payable from Ihe general revenue of the state as defined by the Revenue Stabilizalion Act. Ark. Code Ann. § 19-5-101 el seq. Ark. Code Ann. § 15-22-616. Thcse bonds are exempt from state income. inheritance. and property taxes. IV. CONCLUSION An examination of water right issues should involve a review of both Arkansas common law along with relevant state statutes and regulations. These issues may be relevant to transactions involving facilities or properties where the use or man-

agement of water will be important The newly created programs intended 10 reward certain types of water resource projects should also be of interest

Walter G. Wright, if; is a member and Albert 1. Thomas, III is an associare of the LillIe Rock law finn of Mitchell, Williams, Selig, Gates & Woodyard, PL.L.c. They are members of the finn's Environmental and Natural Resources Practice Group. Wright also serves as all adjuncI professor 01 Ihe UALR School of Law. Also assisting in the preparation of this article were Robert F. Thompson, 11/, and Holly Larkin, bOlh of wholll are 3rd-year law students at the University ofArkansas and Vanderbilt University respectively. Endnotes I. See, Enhancing the Role oj Water Districts ill Groundwater Manageme1l1 and SurJace Water Utiliz.ation in Arkamas, 48 Ark. L. Rev. 643 (1995); An Updale on Arkansas Water Law: Is the Riparian Rights Doctrine Dead? 43 Ark. L. Rev. 573 (1990); Modification oj Arkansas Water Law: Issues Gild Alternatives, 38 Ark. L. Rev. 221 (1984). 2. Charles J. Meyers & A. Dan Tarlock, Water Resource Manageme1l1, 7 (2d Ed. 1980). 3. Heath, Basic Groundwater Hydmlogy ii (U.S. GPO 1983). 4. Id. 5. Arkansas Soil and Water Conservation Commission, Arkansas Water Plan: Executive Summary 9 (1990) [hereinafter Arkansas Water Plan]. 6. Activities potentially causing groundwater pollution are numerous and diverse. They range from defective landfills and surface impoundmel1ls to leaking underground slorage tanks. See Wright, In Storage Tanks We Trust: An Analysis oJ Their Role {ll Protecting The Environmelll and Small Business, 13 U. Ark. Little Rock L.J. 417 (1991) (discussion of underground storage tank issues). 7. Arkansas Water Plan, supra note 5, at 2. 8. Id. 9. Id. at 9,12. 10. Id. at 15. II. Arkansas Water Plan, supra note 5, at 15. 12. Id. 13. Id. at 21-22. 14. Id. at 12. 15. Arkansas Water Plan, supra note 5, at

17. 16. Id. at 12. 17. Id. 18. Id. 19. Clean Water Act, 33 U.S.c. ยง 1251 el seq.; Arkansas Water and Air Pollution Control Aet. Aet 472 of 1949 (as amended. eodifled at Ark. Code Ann. ยง8-4-1 0 I. eI seq.) Any facilily discharging a pollutant through a point source into a navigable body of water must have a National Pollution Diseharge System ("NPDES") permit. See 33 U.S.c. ยง 1301. The terms "pollutant" and ';poinl source" are broadly defined. Arkansas administers this program pursuant to ADPC&E Regulation No.6. A permit's effiuent limitations are based initially on categorical technological controls. However, where necessary for the relevant segment of the water body to achieve specified water quality standards, the permit may contain more stringent effluent limitations. 20. See generally Clean Water Act 33 U.S.c. ยง 1303 el seq. 21. See ADPC&E Regulation No.2. 22. See ADPC&E Regulation No. 22 (sanitary landfill standards), ADPC&E Regulation No. 12 (underground storage tank standards), Federal Insecticide Fungicide and Rodentieide Aet 7 U.S.c. ยง 136 et seq. (pesticide use and disposal statutory requirement). 23. Arkansas Water Plan, supra note 5, at 22. 24. See Harris v. Brooks, 225 Ark. 436 (1955). 25. Id. at 442. 26. Id. 27. See Harrell v. City of COl/way, 224 Ark. 100 (1954). 28. Id. at 104. 29. See Lingo v. City of Jaeksol/ville, 258

Ark. 63 (1975) (indicating that a transfer of groundwater would be permissible if no harm resulted to the overlying landowners); see also Miller II. United States, 492 F. Supp. 956 (ED. Ark. 1980) (suggesting that an interbasin water transfer can take place when a surplus exists). 30. See Seetion III (8) of this article. 31. Jones v. Oz-Ark-Val Poultry Co., 228 Ark. 76 (1957). 32. See Harris v. Brooks, supra note 24. 33. Barbaro v. Boyle, 119 Ark. 377 (1915). 34. Stale v. Mcilroy, 268 Ark. 227 (1980). A recent Arkansas Attorney General's opinion addressing various issues related to lake ownership is found at Gp. Att'y Gen. No. 95-226 (1995). 35. Id. 36. Nilsson v. Latimer, 281 Ark. 325 (1984). 37. Id. at 327. 38. Barbaro v. Boyle, 119 Ark. 377, 380 (1915). 39. Anderson II, Reames, 204 Ark. 216 (1942). 40. Barbaro, supra note 38, at 380. 41. Anderson, sl/pra note 39. 42. Id. 43. State v. Mcilroy, supra nOle 34. 44. Pirtle v. Opco, Inc., 269 Ark. 862 (App. 1980). 45. Boyd v. Greel/e County, 7 Ark. App. 110 (1983). An interesting decision addressing the scope of a flowage easement and Lake Catherine is Carsin v. Arkansas Power & Light Co., 14 F. 2d 399 (8th Cir. 1993). 46. An interesting case involving a dam dispute between differem property owners involving the ASWCC is Styers v. Johnson, 119 Ark. App. 312, 720 S. W.2d 334 (1986). 47. 281 Ark. 286, 664 S.W.2d 441 (1984).

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Summrr 199i

10-19 (Harvard Univ. Press 1993). 7. Roscoe Pound, All IlIIrodllction to tlie Philosophy of UIW 70-71 (Yale Univ. Press 1922). 8. Roscoe Pound, Law and Morals 75 (Rothman 1924). 9. Howard. supra at 185. 10. Huward. slIpra at 51. II. Howard. supra at 24-29: Morton Horwilz. The Tran!-'fomullioll of AmericllII Law 1870- I 960: The Crisis of Legal Orthodoxy 230-246 (Oxford Univ. Press 1992). 12. Quoted in Howard. supra at 184. 13. Howard. supra at 229. 14. Howard, sllpra at 10-11. 15. William Greider. Who Will TelJ The People: The Betra.val of Americall Democracy 46 (Simon & Schuster 1992). 16. Peter C. Yeager, The Limits of Law: The Public Regulation of Private Pollution 284-292 (Cambridge Univ. Press 1991). 17. Charles Fried, Order and Un,,: Arguing the Reagan Revollition 183 (Simon & Schuster 1991). 18. Richard Epstein. Takings vii (Harvard Univ. Press 1985). 19. {d. at 284 20. Horwitz. supra at 151. 21. White. supra at 84. 22. Stephen Breyer. "The Lessons of Airline Deregulation," Reforming Regulation 93 (American Enterprise Institute 1980). 23. "Regulalory Reform: The Case for Common Sense (An Interview with Philip K. Howard)" The Washington MomMy. September 1995 at 23. 24. Fuller. supra at 64. 25. Howard, supra at 179. 26. Howard. supra al 180.

On Appeal

Amicus Curiae by D.P. Marshall, Jr. One of your best cliems is the local newspaper. You learn. from a lawyer friend in another part of the state. that another newspaper has filed a notice of appeal from a libel verdict. The case involves allegedly defamatory material in an editorial; it will clarify the law in an imponam way. You tell your client. the local publisher. about the appeal. "Is

there anything we can do," she asks. "other than just waiting for the appeal to be decided?" Yes there is: consider an amicus curiae brief. Our Supreme Court's Rules provide for "amicus curiae aLtorneys:" The Rules provide. that is, for friends of the court 10 file additional briefs. ASCTR 4-6. As a maller of serving our clients. we need to keep this option in mind. An amicus curiae brief can provide, in our newspaper case for example. a way of getting your client's views heard by the Coun. Looking out from inside the case, counsel for appellant or appellee should also welcome another voice in support of the right result. What are the logistics? Arkansas Supreme Court Rule 4-6 and a handful of cases light the way. Amicus curiae status is not a matter of right. You must move the court for permission to file the brief. Despite some loose language in the annotation for Yares v. SllIrgis, 312 Ark. 397. 849 S.w'2d 523 (1993), your amicus brief is not due when you move the Court for permission to file it. The brief is due when the main brief of the party you are supporting is due. If it remains "neutral" in Rule 4-6's word, taking no position on the merits, the amicus brief is due when appellant's brief is due. Amicus in Arkansas may not participate in oral argument. ASCTR 4-6. Beware one timing trap. Our Supreme Court's Rules tie the due date for an amicLis brief to the parties' due dates. Coordinating an agreed filing date is therefore essential. If you are an appellant with an amicus in the wings, for example. do not file your brief without confirming a date with the amicus. The same goes for appellees. An unannounced filing of one of the main briefs risks rendering the amicus brief untimely. Arkansas appellate advocates have been understandably shy about filing amicus briefs. Our shyness stems from Fergmall v. Brick. 279 Ark 168,649 S.w'2d 397 (1983). In that decade-old per curiam decision, our Supreme Court seemed to frown on amicus briefs. The Court traced the decent of amicus briefs from helpful friendships. to unabashed advocacy. and on to mere lobbying. Ferguson, 279 Ark. at 169-73. Concerned that the Court not appear susceptible to political pressure. the Court announced a new attitude toward amici: "1 H lenceforth. we will deny perm is-

sian to file a brief when the purpose is nothing more than to make a political endorsement of the basic brief:' Ferguson. 169 Ark. at 173. As well-founded as the Ferguso1l Court's concerns were, they are no bar to effective appellate advocacy as amicus curiae. The traditional role of amici - aiding the Court in its search for the right to result - remains intact. Ferguson. 279 Ark. at 169. "Beware of one timing Support one party or the other. as trap, Our Supreme Rule 4-6 contemplates. but do not merely parrot a party's arguments, or Court's Rules tie the attempt to stand in for one of the parties. Gmlllo,.s v. Employers Natio1lal due date for an amicus Insurance COllJOHJtio1l, 318 Ark. 171. brief to the parties' due 172, 884 S. W,2d 591 (1994). Take the issues as you find them. Like the dates, Coordinating an Court, amicus may not expand the agreed filing date is points raised on appeal by the parties. Mears \~ Lil1le Rock School District. therefore essential," 268 Ark. 30, 34, 593 S.W.2d 42 (1980). Strike out instead for the essential legal principles involved in the case. Explore the policy choices animating those principles. And. most importantly. show the Court the many ways in which this decision will affecl your client and others. The last point is, I believe, the difference between an amicus brief that will be filed and read. and one that will be rejected. E.g.. Arkansas Department of Hilman Services v. Couch. 36 Ark. App. 241, 242-243, 821 S. W.2d 67 (1991) (motion to file amicus brief denied where movants were interested only in the outcome of the case at bar). Put yourself in the appellate judge's place. In addition to handling motions, writing opinions. and oral argument. most every week you face a stack of fifteen or twenty briefs. Great, you think. this case has an extra brief. But the amicus brief turns out to be worth (he read. II is shaft. It is incisive. cuning to the main issue and laying it open. A bit detached from the particulars of this dispute. it emphasizes the effect of this decision on future cases. It talks policy without being political. Here. then. is a true friend of the Coun, and an effective advocate for your client.

(D.? (Price) Marsh"II. 11:. is Ch"iro!rhe YOllng Lawyers Section of 'he Arkansas Bar Association.)

\; Tbr Irlanm L311yrr

Summrr 1996

CLE Director's Report

An Organization Is Only As Strong As the Commitment, Contribution and Participation of its Individual Members... by Char/aile Greer

As we bid farewell to another CLE reponing year. it is fitting to renect upon the imponant role that our members play in providing high quality education to Arkansas lawyers. We. the Bar Association staff. are proud of the timely seminars and publications produced by the hundreds of volunteer Section and Commiuee members. speakers. program planners. editors and authors. I would like to thank our many members that gave generously of their time and talents over the past year. We appreciate their contribution and realize without their efforts the CLE Division of this organization would cease to exist. CLE is essentially members of the bar educating each other and sharing practical tips on how to better serve their clients. We all know that an organization is only as strong as the commitment. contribution and participation of its individual mcm路 bers. So, I need your help to ensure the continued vitality of Arkansas Bar Association CLE. In addition to the usual solicitation of panicipation through committee and section involvement. I'd like your candid input all a broader issue: is OUf current CLE programming working for you? As bar executives we know that CLE seminars can out-grow or out-live their original purpose. Do we have any seminars like that? Conversely. are there other needs that could be met through new CLE seminars? I'm interested in your preference regarding content and delivery of continuing legal education. as well as your need for specific technology based serviccs. products and education. Please share your ideas. compliments or complaints. The resulLs will play an imponant role in the kinds of programming we develop as well as the ways we deliver information and services. We can only be successful when we are fulfilling your educational needs. Thank you for your continuing suppon of your Association's educational efforts. We look forward 10 your comments.



I'd like to share these ideas with the Bar regarding CLE.


Arkansas Bar Association Continuing Legal Education Send to ABA by fax at (501) 375-3961 or mail to 400 W. Markham. Suite 600. Little Rock. AR 7220 I

Congratulations 10 Virginia Hardgra\'e. CL拢 Secretary, for celebrming 15 years with the Arkansas Bar Association.

Summary of Seminar Registration Fees Approl'ed by the 拢rel:U1i1'e Council

Basic Registration Fee for Members Basic Registration Fee for on-Members (Including Non-Lawyen;)

Regular Fee路 Regular Fee Plus a Surcharge

Discounts Provided Only To: Law Students

Senior Allomeys (Over 70 or admilled

Meal and course material charge only

10% Discount 10

practice 40 years)

10% Discount Newly Admilled Auomeys (Admitted to practice within 2 years of seminar) Program Chairs and Facully

Name (oplional): L

_ _

No Charge

'Normal Charge is $20 per CLE hour. Other rates may apply to certain programs including the Annual Meeting, Best of CLE, Bridging-the-Gap. CNA. District Trial Praclice. and Co-sponsored Seminars.

disciplinary actions Kenneth L. Edwards A letter of caution was issued to Kenneth L. Edwards for violation of Model Rules 1.2 (a) and 1.4 (a) upon the complaint of Matthew S. Dame. These rules state, in part, that a lawyer shall abide by a client's decisions concerning the objectives of representation and shall consult with the client as to the means by which they are to be pursued. In a criminal case, the lawyer shall abide by the client's decision. after consultation with the lawyer. as to a plea to be entered, whether to waive jury trial and whether the client will testify; and, shall keep a

unable to speak with his client for his approval. Edwards decided to emer a

Don Trimble Upon the complaint of Linda

conditional plea of guilty on his behalf

Williams, Don Trimble was issued a letter of caution for violation of Model Rules 1.8 (e) and 1.8 U). These rules state, in part that, a lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation; and. a lawyer shall not acquire a proprietary imerest in the cause of action or subject matter of litigation the lawyer is conducting for a client.

and sent a letter advising him of the negotiation. When Edwards received no response, he wrote again. Thereafter, Edwards was advised that new counsel

had been retained. Edwards concluded by stating that the course to be pursued was explained to his client and, at that

time, all parties were satisfied. He added that his attempts to communicate with his client and his father were unsuccessful.

Donald F, Seay

client reasonably informed about the sta-

A letter of caution was issued to

tus of a matter and promptly comply with

Donald F. Seay for violation of Model Rules 1.1 and 8.4 (d) upon the complaint of Wilma M. Hogue Brand. These rules

reasonable requests for infonnation.

In his affidavit, Dame stated that in ovember 1993. he was issued a citation for Underage Driving Under the Influence and retained Edwards to represent him. He explained the facls and cir-

cumstances to Edwards and left with the understanding the case would be contin-

ued until sometime in March 1994. Dame stated that Edwards was confident that a negotiation could



out and he believed that Edwards would

portion of her medical expense to her

shall not engage in conduct that is preju-

doctor. The complainant averred that the

dicial to the administration of justice.

monies advanced were to be deducted by Trimble from any settlement she might obtain from her legal matter. For his response Trimble stated that Williams came to him one day and

In her affidavit, Mrs. (Hogue) Brand stated that her husband had a daughter, Shirley Renae, by a previous marriage.

Shirley Renae went to prison shortly after the birth of her son. With her permission and consent, Mr. and Mrs. Hogue adopted the son. Subsequently, Mrs. Hogue divorced Mr. Hogue and was awarded

Dame attempted to contact Edwards on

custody of their adopted son. Shirley

seven occasions. When Edwards failed to respond Dame's father sent him a letter. Having received no response, the elder Dame contacted the Court and learned that three weeks earlier Edwards entered

Consent and Annul the Adoption based on the fact that the consent did not comply with Arkansas law in that it failed to state that she had ten (10) days within

Renae then filed a Petition To Revoke

a guilty plea on behalf of his son. The

which to withdraw her consem. As a

judge suspended his license and assessed a fine and costs. This was done without

result of Seays failure to include the

Edward's client's knowledge, consent or

the date of entry of the judgment. For Edwards response, he stated that since he was retained a few days before the court date he attempted to get the matter postponed to allow time to investi-

gate and, perhaps. negotiate with the prosecutor. The case was put off until

early February. Edwards stated that his client initially advised him that he did not want his parents to know about this citation. Therefore, he did not believe it permissible to discuss the matter with his

father. At the time of the court date Edwards had worked out a deal, but was

from Trimble with which to pay her rent. She stated that Trimble also advanced a

state. in part, that a lawyer shall provide competent representation to a client: and,

contact him when a plea bargain had been negotiated. Following the discussion.

authorization. Finally, Edwards sent a letter to Dame wherein he asserted that expungement is available one year from

Ms. Williams stated that Trimble was retained to represent her in legal matters arising from a car accident. Williams was also under the jurisdiction of the bankruptcy court. She continued experiencing financial difficulties and received a loan

required statutory language in the con-

sent, Mrs. Brand stated that she had been forced into lenghthy and expensive legal battles to retain custody of her son causing a financial burden and a great deal of stress. For his response, Seay stated that [he entire family came to his office desiring

to do what was best for the minor child. Seay avers that Shirley Renae had her rights fully explained to her including that she would have ten (10) days to withdraw her written consent. Seay admitted. however, that the written consent did not contain the ten (10) day withdrawal

notice. Seay asserted his belief that the allegations should be denied due to the passage of time and, in any evem, he denied the allegations of misconduct.

advised that she and her child would "be put out" of their home unless she paid the rent on that day. Bel.ieving her to be in great need Trimble advanced the money to her. Trimble also stated that he paid the doctor a consultation fee since Williams was unable to do so, because he needed the doctor's opinion to evaluate the case for settlement and/or trial.

John Frank Gihson, Jr, A letter of reprimand was issued to

John Frank Gibson, Jr. for violation of Model Rules 1.1, 1.3 and 8.4 (d) upon the complaint of Charles B. Patton. These Rules state, in part, that a lawyer shall provide competent representation to a

client; a lawyer shall act with reasonable diligence and promptness in representing a client; and, a lawyer shall not engage in conduct that is prejudicial to the administration of justice. Charles Panon was Gibson's client in two separate criminal trials in Bradley County, Arkansas. In one of the maners,

Gibson was retained by Patton and in the other Judge Stark Ligon appointed him. Following the first trial in which Gibson represented Patton, he was required to file his own Notice of Appeal to preserve his

appellate rights because Gibson would Ii TIt

Ir~lI111 LIW)lr

S.lIlr Illi

disciplinary actions not do so on his behalf. In correspondence to Patton, Judge Ligon explained to him that Gibson was responsible for the appeal unless he was relieved by the appellate court. Again in his Order denying Patton's Rule 37 petition, Judge Ligon pointed out that Gibson was still responsible for the appeal. Because of Judge Ligon's statements and because no motion to be relieved was ever presented to the appellate court, Patton believed his appeal was proceeding. After Gibson filed a Motion for Extension of Time lO File the Brief, he was notified that the brief was due August 3, 1994. Gibson failed to file a brief on that date. Honorable Leslie Steen wrote Gibson on January 10, 1995 explaining that he needed lO take some action. Gibson took no action and the appeal was dismissed. The second criminal maHer in which Gibson represented Patton was concluded by conviction on January 5, 1994. Gibson next filed an affidavit for compensation but not a Notice of Appeal. Patton once again filed his own Notice of Appeal. The first action that Patton was aware of having been taken care of by Gibson was on March 9, 1995 when Gibson filed a Motion for Rule on the Clerk. The Supreme Court's Per Curiam on this Motion explained that Gibson impermissably merged Panon's two cases on appeal in his motion. Gibson's next pleading was a Motion for Reconsideration which was denied by Per Curiam with the court again explaining what Gibson needed to do to have his motion granted. At the time of Patlon's execution of formal complaint, Gibson had taken no action. The Executive Director wrote to Gibson about Patton's concerns in an attempt to handle the matter informally but Gibson lOok no action pursuant to that correspondence. In responding, Gibson explained first of all that Patton had not made him aware of all his criminal charges when he hired him. Gibson asserted that Patton was informed of his right to appeal. Gibson averred that he never refused lO file a Notice of Appeal but rather that he explained to Patton that someone else would have to represent him if he chose to appeal. Gibson also acknowledged that Patton filed his own Notice of Appeal from his second criminal maller in which Gibson represented him. Gibson pointed

IS fbI


S.lllr 1191

out that until the date of his affidavit of response he was operating under the impression that the transcript his secretary filed in March of 1994 was the transcript of the second trial. He was totally unaware that the transcript for the first proceeding had been filed. Gibson also stated that he was totally confused and bafned by the language in the Supreme Court's Per Curiam. Even after contacting the Clerk's office, he was unable to learn that the other transcript had been filed. In concluding his response, he stated that after ransacking old files in his office he was able to determine what had happened. Gibson also stated he was filing the appropriate motions in both appeals. Subsequent to his response, Gibson sent a supplemental response in which he acknowledged the only mistakes in the matter were his.

Q. Byrum Hurst, Jr. Upon the complaint of Ruthie Robinson, Q. Byrum Hurst, Jr. was issued a letter of reprimand for violation of Model Rules 1.3, 1.4 (a) and 1.16 (d). These Rules state, in part, that a lawyer shall act with reasonable diligence and promptness in representing a client; and, a lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information; and. upon termination of representation, an attorney shall take steps to the extent reasonable practicable to protect the client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advanced payment of fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by other law. In her affidavit, Ms. Robinson stated that she met with Hurst in April 1992 to discuss representation of her husband, James W. Robinson, an inmate at the Arkansas Department of Correction. Mr. Robinson, sentenced to life imprisonment without parole for two counts of murder, was seeking transfer within the Department of Correction or having the sentence reduced or vacated. In a letter following the meeting, Hurst indicated the matter could be completed within six to nine months and quoted a fee of

$3,500. In May 1993, Hurst was retained by Ms. Robinson, acting on behalf of Mr. Robinson, when she paid one half of the retainer. In December 1993, HUTSl mel with Ms. Robinson to discuss the matter. Following receipt of letters from Ms. Robinson, Hurst wrote and apologized for not responding sooner but assured her that he was in the process of drawing up a writ of Habeas Corpus and that it would be filed within the near future. In December 1994, Ms. Robinson wrote to inquire of the status of the matter. In March 1995 Hurst met with Ms. Robinson and advised her that the Petition would be filed immediately. On November 21, 1995, Hurst met with Ms. Robinson to discuss the matter and Ms. Robinson informed him of her decision to terminate his representation. He indicated that he would refund most of the retainer and it would be mailed right away. Hurst also represented that he would deliver the case file to Ms. Robinson by November 30, 1995. In December 1995 Ms. Robinson wrote a letter requesting the file and refund by January I, 1996. It was not returned and neither was the partial refund. Hurst was provided a copy of Ms. Robinson's complaint on February 6, 1996, and submitted a response on March 7, 1996. For his response, Hurst stated that Ms. Robinson's affidavit was substantially t:urrec( in all aspects but that there were extenuating circumstances that should be considered in regard to the matter. Hurst stated that he was reluctant to take the case because Habeas Corpus matters and civil actions under 28 USC 2255, involving the setting aside of convictions or sentences for constitutional infirmities, are very time consuming and very expensive. Hurst stated that it was decided the best, most reasonable relief to obtain with success would be to try to find a way to make Mr. Robinson's life more comfortable. In his affidavit he indicated he then discovered that Mr. Robinson had been convicted twice of capital murder, that the first conviction had been reversed, a new trial ordered, and that he was again convicted at the new trial. Hurst stated he then contacted prison authorities concerning what type of "jobs" Mr. Robinson could have and found that, due to Mr. Robinson's sentence, reassignment might be unlikely.

disciplinary actions Hurst stated that it was his normal policy to

request payment in full before work begins but that he did agree to draw up a writ of

Habeas Corpus because he was thinking with his heart instead of whether or not Ms.

Robinson could pay the balance of the retainer. Specifically. in regard to Rule 1.3, he stated that since Ms. Robinson had not

paid the initial retainer of $3,500 that there was no time frame in which to pursue the

remedies available and that the best thing to do was to wait for an opportune time to get the relief requested. In regard to 1.4 (a) Hurst stated that he felt as if Ms. Robinson was kept reasonably informed. In regard to 1.16 (d) Hurst stated that Ms. Robinson

H. Pattison. These rules state, in part, that in representing a client, a lawyer shall not communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so; and, in representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtain-

ing evidence that violate the legal rights of such a person. Mr. William H. Pattison, Jr. is an attorney practicing in Maryland. He represents Anna M. Marsh in proceedings relating to the

is evidenced by his statements concerning how much Pattison's client would have to

pay for legal services while Venable, Jr. would receive full legal service.

Sparks asserted that Venable, Jr. approached him during September 1995 to advise him in regard to a probate situation.

Venable, Jr. explained to Sparks his reasons to believe there had been undue influence or

additional wrongdoing by Mr. Pattison's client in regard to his father's estate.

Venable, Jr. also explained that his initially retained counsel had failed to present the additional evidence of wrongdoing to

Panison. Sparks also asserted that he explained he could not represent Venable, Jr.

requested that he surrender Mr. Robinson's

Estate of Thomas S. Venable, Sr. Pattison's

in Maryland because he was not licensed

file to her but he told her that he needed

client and Thomas Venable, Jr. were named as Co-Beneficiaries and Co-Personal

there. Because Venable, Jr.'s belief that if Panison and his client were both apprised of

Representatives in the Estate. Sparks began

his evidence of wrongdoing they would con-

to represent Venable after Pattison's client

sider settlement, Sparks agreed to write both Pattison and his client simultaneously. Sparks pointed out that at no time did he

some time to review the file and arrange it in proper order. Hurst stated that he volunteered to deliver the file to Ms. Robinson's

home in Little Rock but he had not had time to do so. Ms. Robinson received her refund

and files in March 1996.

a.c. "Rusty" Sparks A lener of reprimand was issued to O.c. "Rusty" Sparks for violation of Model Rules 4.2 and 4.4 upon the complaint of William

had filed the Will and petitioned for judicial probate. On October 25, 1995, Pattison received a copy of a letter Sparks wrote

ever attempt to contact Pattison's client by

telephone or any other manner. Sparks

directly to his client. His letter to Pattison's client deals specifically with the distribulion of the estate. Sparks did not have Pattison's

asserted that he gave direct consideration to

consent to contact his client. The delay and

Pattison's client did not violate the purpose

burdensome intent of Sparks correspondence

of the Rule. It is also Spark's assertion that

Rule 4.2 and determined that writing

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disciplinary actions his actions in writing the letter as he did

involved in a motor vehicle accident on July

should not be considered as violating Rule 4.4.

18, 1994. A gentleman, Tim Mason,

Carole Diane Sexton A letter of caution was issued to Carole

Diane Sexton for violation of Model Rule 4.2 upon the complaint of Tom Floyd. This Rule states, in part, that in representing a client, a lawyer shall not communicate about

approached her at the scene, inquired about her injuries and if she intended to seek med-

ical treatment. He then stated that he had overheard the driver of the other vehicle say that he resided outside the state and was

leaving Arkansas that night. Mason told Conley that if she would authorize him to do so, he would gather information from the

since Morris and Mason were unavailable for service of subpoena to testify at the hearing.

In any event, Mays conceded that Conley's employment contract undoubtedly showed up in his oHioes no later than July 19, 1994. since Conley received a letter of that date from Mays firm regarding the initiation of work on her case. However, no one was able to recount specifically how or when the agreement was received by his firm. Mays also stated in his response and testified at the evidentiary hearing that his case

the subject of the representation with a party the lawyer knows to be represented by anoth-

other driver. He presented an "Agreement"

er lawyer in the matter, unless the lawyer has the consent of the other lawyer or is autho-

investigative services. He also gave her a

business card, told Conley to call the num-

was handled according to office procedure. Specifically, Mays testified that an attorney

rized by law to do so. Tom Floyd was the opposing party in a

ber, speak with Catherine Stevens and she would recommend a doctor. When she made

a case but not having brought this file to the

divorce action in which Sexton represented

the call, Conley learned that the "agreement"

hearing he was unable to say which attorney

the defendant. During the pendency of this action, Sexton approached Floyd as he was on his way from the parking lot to his attor-

was, in fact, a contract for legal services with

accepted this case. Mays testified that his

the Mays and Crutcher Law Offices. Stevens did make a doctor's appointment for Conley and told her that although Mays was her

trained support staff is monitored and supervised by an attorney who coordinates this

ney's office. At that time Sexton attempted

to discuss with Mr. Floyd various property matters which directly related to the divorce settlement. Sexton also advised Floyd that he could contact her anytime to discuss this

pending matter. Floyd's attorney had never given her his consent to discuss any of the pending matters with his client. Further,

Sexton has never consulted with Mr. Floyd's attorney about such contact.

Sexton's response began by questioning the delay in the affidavit being initiated. However, closer inspection may have demonstrated to her that it was initiated months prior to service. The delay in service resulted from Sexton's not having receipted her

which Conley signed, thinking it was for

attorney, she should expect to communicate with Stevens. Stevens testified that she is the

Claims Manager for Mays office and her duties include the interviewing of witnesses, negotiation of claims and various other duties as instructed by the attorneys in the firm. In that connection she began corresponding with the insurance company wherein she referred to Conley as "my client." Eventually, a settlement was negotiated, but

she did not recall such contact with Floyd. Further, she questioned why Floyd and his attorney failed to bring this matter up before the Court at the time of the divorce hearing.

her efforts to do so. In fact, she saw Mays

Conley alleged in her affidavit of complaint and her testimony at the evidentiary

hearing of January 19, 1996, that she was ~O

Tbr "'klllil IJ"yrr SUIi.rr 1991

tified to his recent attempts to contact Conley in an effort "to become a person with her."

Court. appellant Dinzel E. Norman. These rules state, in part, that a lawyer shall abide

Mays firm. At that point in time Conley had

of Vanessa Conley. These Rules state, in part, a lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation; and, shall not assist a person who is not a member of the bar in the performance of activity that constitutes the unauthorized practice of law.

out with her. Mays dropped his lien and tes-

tional medical attention. Immediately thereafter. communication broke down causing Conley to terminate her relationship with never met nor conversed with Mays. despite

A letter of reprimand was issued to

rized his staff to accept an offer later rejected by the client. Subsequent timing and circumstances precluded him from personally meeting with Conley in an effort to work this

Conley had not authorized a senlement and rejected the offer on belief she needed addi-

mail. In responding to the substantive alle-

Richard L. Mays for violation of Model Rules 1.4 (b) and 5.5 (b) upon the complaint

entire process. Accordingly, Mays autho-

George J. Stone George J. Stone was issued a lener of reprimand for violation of Model Rules 1.2 (a), 1.3, 1.4 (a), and 8.4 (d) as a result of a

gations of the complaint, Sexton averred that

Richard L. Mays

at the firm always decides whether to accept

for the first time at the hearing on January

19. Following dissolution of the anomeyclient relationship, Mays put an attorney's lien on the settlement.

Mays denied knowing or being acquainted with Tim Mason. According to affidavits

and testimony offered in support of Mays response, Jimmy Morris, formerly employed by Mays firm at the time of Conley's accident, purportedly had an employment contract in his possession for delivery to a per-

son in Pine Bluff who had requested legal representation. Morris supposedly was a friend of Mason, and it was averred that Morris had given the contract to Mason for

Per Curiam from the Arkansas Supreme

by a client's decision concerning the objectives or representation; that an attorney shall act with reasonable diligence and promptness in representing a client; that a lawyer shall

keep a client reasonably informed about the status of a malter and promptly comply with reasonable requests for information; and. shall not engage in conduct that is prejudicial to the administration of justice.

On September 6, 1994, Dinzel Earl Norman was found guilty of conspiracy to manufacture a controlled substance. methamphetamine, and manufacturing a controlled

substance. Stone filed a Notice of Appeal on September 27, 1994. On December 13, 1994, the Circuit Court of Newton County extended the time for filing the record until

delivery to the Pine Bluff client as a courtesy

March 27, 1995. The record was tendered to the Clerk's office after the extended time for

since Mason was going there anyway. There was no evidence adduced as to how Mason happened to come into contact with Conley

filing had lapsed. A Motion For Rule On The Clerk was filed 011 April 6, 1995, asserting failure of the Newton County Clerk's

disciplinary actions office to deliver a copy of the lranscript lO Stone or lO file the lranscripts with the Clerk of the Court as grounds for the MOlion. A per curiam opinion was entered April 24,

1995. denying the MOlion unless Slone provided a Motion and Affidavit accepting full responsibility for nOl limely filing the lranscripts. Slone did not respond to the Coun's requesl in the 30 day period. Norman was nOlified by Sue ewberry, Criminal Juslice Coordinator. that the Motion was denied. orman filed a grievance with the

Committee on Professional Conduct. A copy of the complaint was sent by cenified mail, restricted delivery on ovember 6, 1995. to Stone's address. Stone received his copy of the complaint on ovember 8. 1995. and filed a response to the complaint on ovember 30, 1995. In his response, he assened lhat he did file a MOlion For Rule On The Clerk on April 6, 1995. Slone's motion was denied on April 24, 1995. In his MOlion For Rule On The Clerk, hc slaled: (I) the Circuit Coun of Newlon Counly extended the lime for filing lranscripts to March 27. 1995; (2) the Newlon County Clerk's office had possession of the transcripts until March 28, 1995; (3) the Newton Counly Clerk's office failed

Purifoy. Following the probable cause deler-

and results. In his explanation, Honey also

mination in the criminal matter Honey made an unsolicited visit to Judge Purifoy's home. During this visit Honey attempted to discuss the pending criminal maner with Judge

pointed out lhal the families had the suppon of the evada Counly Judge, the evada County Coroner and several Quorum Court

Purifoy, including the underlying facts

members but nOl the evada County Sheriff. Honey also discussed how the community

involved in the charges. Honey even went so far as to suggest certain pretrial actions

was divided on the issue of having a grand jury convened and that strong feelings exist-

Judge Purifoy could lake in the case. All of

ed on both sides. Honey also assened lhat it

this information about the visit and conversa-

was about this time when the sheriff obtained a statement from an alleged victim making

tion was provided by Judge Purifoy in sworn testimony on multiple occasions. Judge Purifoy's first recorded interview about this incident occurred four days after the inci-

charges of sexual misconduct againsl him. In ovember 1993, Honey was aware of the

dent. According to Judge Purifoy Honey brought up Slalements of all alleged victims of the criminal charges taken by Arkansas Stale Police Invesligators which Honey asserted were old and not true. Then Honey started talking about facts in the case and provided Judge Purifoy Wilh his version of the alleged criminal conduct. In discussing pretrial matters, Honey suggested that if Judge Purifoy held a hearing on the stale-

Judge Purifoy and Prosecutor Brent Hallom to discuss the possibilily of empaneling a

accusations again t him and he met with

grand jury to examine the allegations. Then

on ovember 15. 1993. Judge Purifoy advised Honey's son there would be no grand jury. That afternoon Judge Purifoy held the probable cause hearing in Honey's criminal matter and the following day Honey was arresled and charged with the crime of rape. Honey also pointed out that aboul the

ments of other witnesses and suppressed them then he could recuse and another judge

same time a petition demanding a grand jury homicide investigation was completed. He

funher assened that since he knew Judge

them Wilh the Clerk of the Coun; and (4) he could nOl meet the deadline of March 27, 1995. Stone also stated in his response thal the only way lO gel the Coun lo granl his motion would be to admit responsibility for the failure lO file the transcripl and that would be in his opinion a falsity and an

would be assigned. Honey explained lO Judge Purifoy thal he could lhen successfully allack the credibililY of the alleged viclims, and the successor judge would have lo dismiss the case. A he was leaving he told Judge Purifoy lhis matter needed lO be dealt with quickly. In addilion, Honey expressed to Judge Purifoy that if these lhings could be accomplished, he fell assured he could conlact the individuals requesting the grand jury in regard lO the matter discussed below, and


convince them a grand jury was not needed.

his case. In concluding his response. Honey

also stated lhal he regrelted Judge Purifoy

Charles L. Honey

Judge Purifoy also provided this information in teslimony before Honorable Tom

to turn the transcripts over to him or to file

A letter of reprimand was issued to Charles L. Honey for violation of Model

Rules 3.5 (a) and 8.4 (d) upon the complainl of Charles E. Black. Thcse rules Slate. in pan. lhat a lawyer shall nOl seek to influence a judge. juror, prospective juror or other official by means

prohibited by law: and, thal a lawyer shall not engage in conduct that is prejudicial to the administration of justice.

Smitherman pursuant to a Motion in Limine

Honey acknowledged discussing hi case with Judge Purifoy but said he was talking to him as an old friend and nOl as the Judge in

misunderstood his intentions and the purpose of his visit to his home.

mony about Honey's visit to his home in

open coun proceedings. Honey's response began by reference lo several suspicious deaths in recent years in

Nevada Counly. for which no criminal charges resulted. Honey funher explained lhal lhere have been approximately 13 deaths

under Rule 8.3 (a), Model Rules of Professional Conduct. Black WHS H trial attorney in a criminal matter in which Honey

tion. Some of the families had discussed with him the possibilily of gelling a grand

was the accused. The Judgc initially assigned to the case was Judge Phillip

jury empaneled since [hey were extremely dissatisfied with the criminal investigations

Attorney for Miller County, Arkansas initiated this complaint pursuant to his obligation

was wrong in certain of his testimony.

and lhereafter Judge Purifoy provided testi-

which were ruled either murder. suicide or accidental and no arrests had been made in [he cases determined to be murder. Based upon client and family connections, Honey and his law firm were very close to the situa-

Charles Black, Deputy Prosecuting

Purifoy was going to recuse from his crimi-

nal case, he didn't feel it was a problem to informally deli vcr the petition for a grand jury to him and that doing so was Honey's purpose for going lO his home. In his response Honey also avers that Judge Purifoy

Upon their verified petitions for voluntary transfer to inactive status, the following named attorneys were placed on voluntary

inactive slalliS by the Committee during March 1996: Davis G. Fitzhugh, and Kerry Layne Kilpatrick.

In Memorium Neva Bennett Talley-Morris

A. Haynes Richardson, III

N e v a Bennell TalleyMorris died in June of Alzheimer's disease. The former Lillie Rock lawyer was 86. She achieved a milestone in 1969 by being elected chair of the Arkansas Bar Association's family law section - the first time a woman was elected chair of one of the association's sections. Talley-Morris was president of the ational Association of Women Lawyers in 1956-57 and received that association's national achievement award. She was a Fellow in the Arkansas Bar Foundation and received a Special Award from the Foundation in 1970 and the Outstanding Lawyer-Citizen Award in 1978. While married to her second husband, Cecil C. Talley, a lawyer. she apprenticed in his law oftlce and became knowledgeable enough 10 pass the Arkansas bar exam. She was licensed to practice law in all U.S. and Arkansas district courts in 1947 and before the U.S. Supreme Court in 1950. Later, she received a doctorate in law at the University of Heidelberg in Germany. Talley-Morris remained active in law until Alzheimer's disease began taking over. She then moved to Judsonia to live in a nursing home closer 10 her brother.

A. Haynes Richardson. III, 74, of Lillie Rock, died in April. He was a graduate of Little Rock High School and received his law degree from t.he UALR Law School in 1949. He was an allorney for the U.S. Brewers Association for 33 years before retiring in 1982. He was a charler member of the Arkansas Society of Association Executives and member of the Arkansas Bar Association and the American Bar Association. He is survived by his wife of 44 years, Dorothy Padgett Richardson: one son, Robert Preston Richardson; one daughter, Patti Lea Boccarossa; two sisters: one brother: three granddaughters; and one grandson.

Chester Leonard Chester P. Leonard, 82, of Fayetteville, died in May at his home. Leonard received an LL.B. and Juris Doctorate degree frolll the University of Arkansas and was a member of the ArkHnsas Bar Associatioll. the Gravette United


Methodist Church and the American Quarter Horse Association. He owned and trained registered quarter horses. He is survived by his wife, Cleo aneta Leonard; one son, James M. Leonard of Fayetteville; two brothers: and two grandchildren.

Robert Vann (Bob) Light Robert Vann Light of Little Rock died in May. Mr. Light was a senior member of Friday, Eldredge and Clark law Firm since 1955. He was a member of the Pulaski County Bar Association, Arkansas Bar Association. American Bar Association, Executive Council. Fellow International Society of Barristers, and a Fellow in the Arkansas Bar FOlll1dalion. He is a graduate of the University of Arkansas-Fayetteville and the University of Arkansas Law School with an LLB in 1955. He is survived by his wife, Cherry Harkey Light and one son, Louis (Whit) Light. both of Little Rock.



+ John "Jack" Fitzhugh John H. "Jack" Fitzhugh, 83, of Fort Smith died in February in a Fort Smith He was an attorney retired from Bryan & Fitzhugh Atlorneys, a member of S1. John's Episcopal Church. Noon Civic Club and the Arkansas and American Bar Associations. He was honored by the Sebastian County Bar Association for 50 years of service and was admitted to practice before the federal courts, the Eighth U.S. Circuit Court of Appeals and the U.S. Supreme Court. He is survived by One daughter. Susan Fitzhugh of Conway; one step daughter, Robbie Foster of Oklahoma City: one stcpson, Jim Blackard of Carrollton. Tcxas. two nieces: four stepgrandchildren and four stepgreat-grandchildren.



FAX (50l) 376-9200


'What's in it for my firm?' a managing partner might rightly ask. Why theCNA acquisition of Continental Insurance

The CNA Insurance Companies became one of the largest writers of lawyers professional liability insurance in the nation earlier this year with their acquisition of Continental Insurance Co. The CNA member companies now insure over 50,000 attorneys in 49 states. The Merger makes the CNA more valuable both to the firms we now insure and to those that are considering our coverage. · Com bi ned u nderwriti ng ex pertise enables us to price policies more flexible for small as well as large firms.

is important

· Greater underwriting resources make it possible for us to offer coverage for higher-risk practice specialties.

to attorneys

· Enhanced resources will improve responsiveness and service.

· Highly focused loss-control services for a broad variety of specialties will continue to be offered and enhanced.

Firms currently insured by CNA can now expect even more value for their premium dollar. For firms not insured with CNA, we can demonstrate how we will perform for you.

Call Rebsamen for more information. Telephone (SOl) 664-8791 Fax (501) 664-9487

The Arkansas Bar Association endorsed Professional Liability Program is underwritten by Continental Casualty Company, one of the CNA Insurance Companies.

CNA is a registered service mark of the CNA Financial Corporation, CNA Plaza, Chicago, lL 60685.

VOL.31_NO.1_JULY 1996  

LillRARIESTM ALSO AVAILABLE ON WEST CD.ROM LIBRARIES: ~ Arkansas Cases'" and West's· Arkansas Code ~ West's· Eighth Circuit Reporter'" ~ Wes...

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