VOL.32_NO.2_SPRING 1997

Powered by a state-of-th Folio, this is the integrated leg system lawyers have been aSking ~ Arkansas-specific colleaiOl1'dl8,t mak preparation easier and fasltt lnt~tnal linking takes you instantly from case to from case to statute, or wherever you wish be within this encyclopedic resource. Ext cross-Iinking makes it equally easy to ao;e our vast CD-ROM library, which includ~ dozens of practice essentials such as AIR- and AmJ.". Legal Forms.

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III

~ Publishlog

Features PAGE THE

EW JUSTICE - PAST AND PRESE T:

Is IT DEJA V ALL OVER AGAIN?

by Judge Thomas Glaze

10

On the Cover: Photo by Dixie Knight.

PROFILES: THE NEW JUDGES OF THE ARKA SAS SUPREME COURT AND ApPELLATE COURT PRO/CON PRO: THE CASE FOR KEEpI G OUR Two LAW SCHOOLS

by Dean Leonard Strickman

14

18

CON: THE CASE AGAINST KEEPING OUR Two LAW SCHOOLS

by David Hargis

20

TRUTH I ' LAWYER ADVERTISING

by William A. Martin

22

REFLECTIO S ON RODNEY SLATER

24

by Judge Wendell Griffen and David M. Glover

In Every Issue EXECUTIVE DIRECTORS REI'ORT,

by Don Hollingsworth

1

A LITTLE GOOD EWS PRESIDENT'S REPORT, by Harry Truman Moore LAW OFFICE TECH 'OLOGY, by Michael G. Smith

2 4 6

LAW, LITERATURE & LAUGHTER,

8

by Vic Fleming

CLE CALENDAR

17

ETHICS COR 'ER

26

8TH CIRCUIT OPINIONS

32

You G LAWYERS REPORT, by D.P. Marshall JUDICIAL ADVISORY OPINIONS/JUDICIAL DISCIPLINARY ACTIONS

39 41

LAWYER DISCII'll ARY ACTIONS

42

IN MEMORIAM

48

President's Report

On Flickering Fireflies

by Harry Truman Moore

During Ihe pasl year your bar Presidenl has orten been asked, "Whal's your ravorite photograph?"

It's the one thaI appears with Ihis final column. It has nothing 10 do wilh the law, bUI the circumstances under which it

into the "loop" as quickly as possible.

Some of their major initiatives have been compleled this year. The study by our

was taken can be analogized to many

"blue ribbon" committee on the Uniform

lhings encountered during the swiftness of a bar year.

ted to the legislature prior to the conven-

tion continue. That's why we need some

ing of the 1997 General Assembly.

Randy Ishmael, as committee chair, and

good lawyers from the Nonhern bar dis-

It was taken one July afternoon on the

greens or one or Ireland's most beautiful golr courses. As we drove by, we spotted a wedding party, posing ror pholos.

These two young colleens were standing rorlornly to the side as Ihe bride, and her bridesmaids, dominated the "profession路 al" photographer's attention.

The camera was handy. We slopped Ihe car. The girls were asked ir they would like their piclure taken. They immediately posed in all of their regalia,

ership is important.

many of the bar's major committees for

Bobby Jones and Carolyn Witherspoon look steps early on to bring this writer

Probate Code was compleled and submil-

years and has already hit the ground running. Bob Cearley, who will succeed Jack, did splendid work this past year wilh membership issues and in planning what will be another outstanding annual meeling in June.

II'S essentiallhal this type or coopera-

tricl to step forward now if they are inter路 eSled in serving as President of the

ArBA. It's not a job that one wants to tackle without a modicum of knowledge of our internal and external workings.

Our staff is phenomenal. We have a perfect combination of talent, ingenuily, age, experience and leadership. The tran-

sition from Bill Manin 10 Don Hollingswonh could nol have gone more smoolhly. After observing the staff in

and one shot was taken before they were

operalion for the past IWO years, however, il is obvious that we need to make some changes in our governance 10 better let

summoned by Ihe bride for a group sho!.

The opportunity for Ihis favorile shol happened in an instant. In a snap. Or, as Larry Tucker, past President of the Missouri Bar would say, like the nicker or a fireny.

In his closing column, Larry discussed an ongoing project, and noted: "Like much of what we do in Bar work, it must go on from year-Io-year and presidenl-lOpresident. That is why we presidents are

Professor Lawrence Averril, as committee

like firenies, a brief flickering presence."

reponer, did oUlstanding jobs in fulfilling

That shon quole spoke volumes.

FiTsI, it was a reminder of how fleeting this term as President is. It seems it is almosl over before it begins. [It also was a reminder of something incoming Presidenls are taught at the ABA Bar Leadership Institute--a good bar association with a good professional staff can

their dUlies.

The special commirtee reviewing lawyer advertising issues completed its

the staff do its job and also to allow bel-

Photo by Harry Truman Moore

report, which was acted upon by the

ter financial planning.

Because of the timing of our annual meeting, which would be very difficult to change. and our membership year, we are forcing our staff to deal with IWO of its major labor inlensive activities within the same month. We're also forcing our members 10 make two major financial outlays within the same shon period of

time. Add to this the work 10 be done on Ihe Besl of CLE program in the last week or June and you undersland why June is the month from Hades.

Executive Council in December and the

Our finance committee is faced with

House of Delegates in January. Thanks,

dealing with a budget cycle thaI is overloaded by events in June. II'S impossible to make proper budget adjustments 10 a July I to June 30 fiscal year when two of

Donis Hamilton, for your leadership in

Ihis effon. Hopefully, by the time Ihis

always overcome a year where a bar may

article is printed, our petition to amend

end up wilh a "bad" Presiden!.]

The quote also emphasizes thaI no bar

our Model Rules of Proressional Conduct based on the House's aClions will be filed in Ihe Arkansas Supreme Coun.

occur during the final month of the year.

For the immediate future, continuity in

We also need to address the problems

project, or activity, is "yours." Rarely does the ArBA, or any other association,

begin a projecl that can be completed in one year. That's why continuity in lead-

fir .Ir~lIlall,a\lJrr Spril! 199i

your bar leadership is guaranteed. Jack McNulty has been directly involved in

the major events impacting the budget in

terms or both revenues and expendilures

COI1l;lIl1ed 011 Page 40 See "Fireflies"

Executive Director's Report

A Bargain and A Public Service

by Don Hollingsworth

I am writing this on March 5th, four days afler the tornados ravaged many of our communities. Arkansas attorneys

were in action immediately after the disaster struck, helping neighbors in every way possible. Many were also volunteering to provide free legal assistance 10 disaster victims. \Vithin hours of the slonns, auomeys in

Legislature which could impact the legal

Association

system and profession.

products

Working with the Legislation Commiltee chaired by Jim Julian, Stacey lobbies on these other bills every day of the legislative session as well as the months preceding the session. The

make it possible. At the

Legislation Committee meets once or

tary slatus

twice each week to decide Association

which is

same time we maintain our volun-

our Young Lawyers Section were activating the YLS Disaster Relief Plan in conjunction with FEMA. Local attorneys and bar associations offered their help and expertise as did the Legal Services

positions on these bills not considered by

important to

the House of Delegates. Other commit-

our profes-

tees of the Association assist in the analy-

sion and is a column in itself.

Programs in the affected counties. Even

vices. There are the many publications

inform attorneys of the benefits and ser-

out-of-state associations were calling to

and CLE seminars, which are provided at

vices of membership in the Arkansas Bar

share their expertise.

As you read this in April there will have been hundreds of Arkansas attorneys donating legal help to disaster victims.

The Little Rock office of this Association will have become the nerve center of this effon, with altomeys and other volunteers taking calls from victims over a toll-free hOlline and matching them with a volun-

a reduced cost to members. The mock

Association. If you attend an Association

trial program is conducled in schools throughout the state. We have a commu-

CLE seminar or purchase a Handbook on LOIS CD-ROM or hardback, it is a WIN

nications network utilized daily by mem-

for you and this Association. The same is

teer attorney.

This mobilization of the Association as

sis of the bills in their areas of expenise.

There are other bargains and public ser-

Please take a look at page 37 herein. It is a start by your Association to better

bers and committees, whether conference

true with our two new partners, AT&T

telephone calls, faxes, or mailings.

and MB A Mastercard.

Please take a look at page 28, which

Your Association office is the central contact point for ordinary citizens

illustrates another way for each of us to

throughout the state who have questions

assist our Association. Yes, we need both

or concerns about judicial procedures,

your financial and volunteer contribu-

finding an attorney, disciplinary actions,

tions,

the above nerve center relates diJectly to

etc., etc. Our staff tries to treat each

the topic originally intended for this column. Membership in the Arkansas Bar Association is a BARGAIN as well as a

caller with sympathy and patience, and to

benefits and services, just call us at 375-

refer her or him to the appropriate entity.

Coming from a Legal Services Program, I

4606 or 800-609-5668. I hope you agree that your membership is both a bargain

service to the legal profession and society.

was used to constant calls of this nature.

and a public service.•:.

Yesterday (March 4th) I watched our lobbyist, Stacey DeWilt. do her excellent work for us at a hearing of the House Judiciary Committee. Our bill on state funding of the court system was passed by the Committee. While you probably know we have a legislative package adopted by the Association's House of Delegates, you may not realize thaI there are countless other bills in the Arkansas

But I have been truly amazed at the volume and variety of telephone calls and letters coming into this office.

In most states this information service

would be handled by a unified bar association with the necessary funding. If you are still with me, you realize that this Association is providing a necessary public service without government funding.

Your dues and your purchase of

If you have questions about member

A Little Good News

VOLUME 32, NUMBER 2 PUBLISHER

Arkansas Bar Association Phone: (501) 375-4606 Fax: (SOl) 375-4901 Homepage: www.arkbar.com E-Mail arkbar@pita.com

ARKANSAS BAR ASSOCIATION iOO II \Iarkham Lillie Rock, \rkan", 72201 EDITOR

Stacey DeWitt ASSOCIATE EDITOR, LAYOUT & DESIGN

Sara Lnndis EDITORIAL BOARD Thomas M. Carpenter SUS<'1l1 Goldner

S.:,uah James

Al Schay OFFICERS President Harry 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 Don Hollingsworth Assistant Executive Director Judith Gray

Dear Editor: I am writing in response to your request for "good news" in the Fall Editor's Report.

While'l have the good fonune to work at what I feel is an exemplary law firm at every level, one element that is panicularly impressive is the caring nature of Mitchell, Williams, Selig, Gates & Woodyard's staff, their cominued efforts to "give back" to the community and to lend a hand to those in need.

This holiday season was no exception. Our staff sponsored a food drive within the finn, and collected enough food and contributions from both staff members and attorneys to assemble 10 baskets of food for the Thanksgiving holiday. These baskets consisted of traditional turkey and all the trimmings and were donated to the Centers for Youth and Families.

The giving spirit seemed to gain momentum as the Christmas holiday season arrived. The staff panicipated for the second consecutive year in the Salvation Army's toy drive for children in our community. Members of the staff raised over $3,000.00 for this endeavor. On the evening of December 16, 1996, several staff members and attorneys met at Wai-Mart with their children to play "Santa's Helpers." Each child chose toys and clothes for children in their age group and the adults supplemented needed items. When the shopping spree was over the "Mitchell Elves" had nine shopping carts overflowing with toys and clothes. The staff was also able to purchase six bikes and helmets and a big wheel. Christmas morning was a brighter and happier day in Little Rock thanks to this effort.

The holiday spirit of our staff also reached oullO our feline and canine friends at the Humane Society. Participation in the holiday drive produced blankets, pet beds and toys, and food and treats for our four-legged friends. Efforts were made to help place the animals in good homes by posting pictures and biographies of those animals available for adoption. This was our first year of participation in the project, but certainly not the last. The efforts of the Humane Society touched many hearts at the Finm.

Everyone knows that the staff at Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C enlivens the workplace and keeps things running smoothly and professionally.

I did, however, want to take this opportunity to recognize their outstanding public service efforts and contributions they make to the legal profession and our community on a daily basis. The Fiml and I appreciate the example they set for us and value their civic commitment.

EXECUTIVE COUNCIL

1. Ray Baxter A. Glenn Vasser R. Scott Morgan Steve Shults Charles L. Carpenter, Jr. Stanley D. Rauls Thomas D. Ledbetter Robert R. Estes Louis B路lones, Jr. Tom Donaldson Mike Everett Michael E. Irwin Lynn Manning Rynn Mark Cambiano Lynn Williams The Arkl1nsas Ll1wyer (USP'S 546-040) is published quarterly by the Arkansas Bar Association. Periodicals postage paid at Little Rock, Arkansas. POSTMASTER: send address changes 10 TIf" ArkanSl1s Ll1wyer, 400 West Markham, Little Rock, Arkansas 72201. Subscription price to non-members of the Arkansas Bar Association $15.00 per year and to members 510.00 per year included in annual dues. Any opinion expressed herein is that of the author, and not necessarily that of the Arkansas Bar Association or TI,e Arkmlsas Lawyer. Contributions to TI,e Arkmlsas Lawyer are welcome and should be senl in two copies to EDITOR, TIlt! Arkansas Lawyer, 400 West Markham, Little Rock, Arkansas 72201. All inquiries regarding advertising should be sent to The Arka"sas Lawyer at the above address. Copyright 1996, Arkansas Bar Association. All rights reserved.

Sincerely.

John S. Sel ig Managing Member

Letters Welcome The Arkansas Lawyer welcomes reader comments in the form of letters to the editor as well as "good news." Letters should pertain to recent articles, columns or other letters and should be no longer than 250 words. Anonymous letters will not be published. The editors reserve the right to edit letters for style, length and continuity.

Leners intended for publication should be sent to: Letters, The Arkansas Lawyer, 400 West Markham, Little Rock, AR 7220 i.

HOW TO REACH THE ARKANSAS LAWYER: Write to the editors of The Arkansas Lawyer at 400 West Markham, Little Rock, AR 7220 I or fax correspondence to 501-375-3961.

ADVERTISING: Advertising rates and infonmation are available upon request.

Contact Sara Landis at 501-375-4606 or 800-609-5668. New Advertising must be pre-paid.

This long distance service offer from your association is so reliable that it's guaranteed.

The Arkansas Bar Association knows how imporrant [[Ust is in a business relationship. TI,at's why they're always looking for solid, reliable ways to do more for you. Like AT&T Profit By Association.

This program was designed to benefit you. It offers an additional member-only discount on top of AT&T's already competitive prices. And because you need every call to get through, the AT&T long distance network gives each call a choice of up to 134 routes to irs destination. Which is why only AT&T guarantees that if your outbound long distance service ever goes down, for any reason, it will be back in minutes. Not hours.

With guaranteed long distance network reliabiliry and on-time installation, AT&T offers you certainty in an uncertain world.

Give yourself the certainty that only AT&T guarantees. Call 1 800 722-7756, ext. 1486, to sign up for AT&T Profi[ By Association tocla y.

AI8tl. For the life of your business."

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Law Office Technology

Deposition Management Software Can Make Trial Preparation Easier

by Michael G. SmiTh One of the most lime consuming aspects of trial preparation is the organization of deposition material into a useable foml. In cases where there are as many as ten or

morc depositions, each exceeding one hun路 dred pages. the lask can be overwhelming unless the lawyer is fortunate enough (0 have several paralegals and associates to

assist in the process. Even with such assistance. it is not unusual for deposition "summaries" 10 end up only slightly shoner than the depositions themselves. A fifty-page deposition summary is little comfort in the middle of Irial when you have only a few seconds to find the pertinent testimony, or al midnight before a critical cross examinalion the following day.

One solution 10 this problem which I

have used with success over the past few years is a software program called Ready for Trial! (RFf)1 Developed in 1990 by Slanford Robbins, a Minneapolis trial lawyer who was dissatisfied with existing litigation support software, RFr operates in a way thai corresponds wilh the way lria! lawyers organize cases for lrial. Originally developed for Ihe Apple Macinlosh plalfonn, a version for \Vindows may soon be available. Regardless of whelher RFf is Ihe right choice for you, by looking al how it works you can get an idea of the benefits of using deposition management software, especially for the small firm practitioner.

RFf allows you 10 organize transcript material such as depositions, trial transcripts, and exhibits, so that as you proceed with discovery and eventual trial, you can quickly retrieve, sort, and maintain the testimony for any combination of witnesses, issues. exhibits. dales, or lopic headings you create. Using RFr, for example, you can build a chronology of the events in the case from the testimony of any group of witnesses; maintain a notebook for each witness; create a notebook for each major issue, containing the testimony of every witness on that issue; or retrieve to screen all of the testimony about a particular trial or deposi-

tion exhibit, and then copy pertinent portions of that testimony from RFf and paste those portions into a brief in support of a mOl ion for summary judgment, for example.

Working with Ihe program is easy. To start you simply create a new case file name under which all the lranscripls will be indexed. At the time the deposition is laken, order an ASCII disk of the deposilion from the coun reponer (Ihis only costs a few dollars more). When the disk arrives.

PUI it into yOUf computer and follow some simple steps to transfer and index the deposilion leXI to your RFf program. After you ha\'c completed these steps for each deposition or transcript, you will be able to easily manipulate the data in many different ways.

RFf performs some basic functions which more or less overlap with Ihose of a sophisticated word processing program.

For example, you can create an index of every word in your depositions, with the page numbers on which Ihe word occurs.

You can creale a key word lisl 10 help you move quickly through the transcripts finding occurrences of each key word. And you can perform full lext searches 10 find words or phrases within the context of the transcript. However, while these functions are helpful, they are not whal makes RFf so powerful.

The real strength of the program is its abilily 10 allow a lawyer 10 quickly and easily organize a transcript on one quick reading. Here is how it is done: Once your transcript is indexed into RFT you open it inlO a split screen window. The lOP half of the screen consists of the actual transcript by page and line numbers. The bottom right portion of the screen is the master subjeci section. The bottom left of the screen is blank for entering comments, and there is a separate lopic line. There are also buttons for quick referencing of exhibits and dates.

Before you begin 10 read Ihe transcripl, you prepare a lisl of master subjects which arc numbered and appear in the master subjecI list at Ihe boltom righl of Ihe screen. In

a typical case, the subjects could include "cause of accident/injury," "failure to instruct/warn," "expert qualifications," "extent of injuries/amoll", of damages;' etc. h is up to the lawyer to define these master subjecls. and they can be lailored to the way the individual lawyer views the critical issues in each case. Also. they can be exported to new case files, to avoid reinventing the wheel.

After creating the master subject index. you then commence reading the deposition.

As you run across testimony that fits into one or more of the categories previously established, you simply click a bulton to establish a range, and then click each master subject for testimony that appears within the range. Although establishing a range may sound complicated, it is actually nothing more than isolating a portion of the deposition, for example, from page five line one, to page six line seven.

As you read you can also type in commelliS, and nag references to exhibits or dates. You can also copy crilically important testimony from the deposition window to the comment window. so that only the most significant testimony can be printed in a report.

After Ihe deposilion has been nagged in this manner there are innumerable ways of manipulating it.. You can print reports by subject, by selected exhibit, by chronologi路 cal order if you nag dales. by witness, and a wide variety of other ways. For each report you can print the actual transcript text, the topics, the comments, the subjects, or just one of these items.

For example. in a personal injury case. you could quickly and easily find and prinl every reference 10 defense exhibil one by every witness. Or. for another example, you could quickly find and print Ihe lestimony of every witness on the sufficiency of a warning label at issue. Alternatively, you can limit your search to only selected witnesses or exhibits. The point is that you are

COlltilllled 011 Page 40 See "Depositioll Mallagemellt"

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Law, Literature & Laughter

Mama Loves Me Copyright 1996

The LLL column in the last issue of

by Judge Vic Fleming

lines from the deposition of a very mature

sign."

Anonymous adds, "It's a good thing the borrowers were no! rescinding on the transaction at the same time that the early disclosures were failing to gel signed.

How would you like to conjugate some

woman. About ninety-two years mature,

verbs with that bank officer?"

this magazine has generated a significant

number of contributions from around the state. James Bradbury of Jonesboro (Barrell & Deacon) has sent me a few

•••

Q. I am about done here. I have just got a few more questions.

A. Well, h"rry "I' and get it said.

Q. All right. All right.

A. I'll be glad ta get rid ofyOIl.

Q. I'm sure you will.

I don'rlike rhe look afyoung menthol

Another correspondent, not truly anonymous (but refusing to be cited

authoritatively), submits the following as an alleged excerpt from a trial:

Q. Did you or did you not have insurance on the date of the accident?

A. Well, / was Sllre that / did. Bur when /

thinks they're smarr.

got home and called the insurance

Q. My mama loves me.

agellcy. they told me my policy had col-

A. Hllh?

lapsed. And it had collapsed the week

Q. My mOlher loves me.

before the accident.

A. Do whor?

Q. My

loves me.

A collapsed policy is kind of like an elapsed lung. It just won't work, will it?

•••

Q. Well, I know you are nor.

A. If I was. I might kill yall.

Q. Well, YOII're talking pretty strong, Ler'sjinish up with (his.

Believe it or not, the deposition excerpt sent by James Bradbury has more to it than is quoted above:

A. I jllst said I might.

Q. No. A. OrallY of

ness?

Q. Maybe.

Why did yOIl go with them?

A. / don't know that I did.

Q. You can't remember?

A. No. That'll do for YOllr II/Ilhollse.

Q. Nwhollse?

A. Yes.

Q. Wllat abow the /l1tt/lOllse?

A. Well, you migllt want to put me in the

nwhouse. That's what / think you are

Anonymous (my

mOSI

Deloris or Lavelle? frequent corre-

spondent) has sent me a copy of a letter.

Apparently it is from a bank officer to some borrowers, and it reads as follows:

"Please sign the confinnation which states that more !.han three business days have passed since you signed your documents, and you do no! wish !o rescind on

A. Well, I might have. It's aft'ee cOlllltry.

Or / thought it was.

Q. Do you know what other banks yOll went to?

A. Yes.

Q. Which olles were they?

the transaction. Also, one of your early

A. Tile ones / had money in was all.

disclosures failed to get signed the second time so I have enclosed it for you to

Q. YOII wellt to all of them?

Spril! 199i

Q. Me? A. Yeah.

Q. YOll think I want YOll in the I/uthouse?

A. Well, I dOIl't kllow. What did they want me in there for?

Q. Well, / don't want you ill the nuthOllse.

A. Well, quit asking me unnecessary

Q. Did yOIl go to allY other bOllks with

•••

n! ,lrkmlsl.llIjIr

crime?

fixing to do.

mOl her

A. Well, I don', care. J'm not your moth-

110W,

that any

your busi-

James says:

A.

A. Yeah. Was

questions, then .

Q. All right.

A. Ain't 1I0body's bllsiness

if I've got

money. It's mine. / did,,'t steal it.

Q. I believe yOIl. I'm done.

A. Well, good.

And on that note, LLL is done! Al least for this quarter.•:.

WRIGHT, LINDSEY & JENNINGS ATIORNEYS AT LAW

is pleased to ail/lOll/ICe that

Clockwise, from the back left: M. Sean Hatch, J. Charles Dougherty, M. Todd Wood, Michael D. Barnes, Claire Shows Hancock ClAIRE SHOWS HANCOCK Commercial Litigation and Antitrust

&

MICHAEl D. BAR ES

Civil Litigation (primarily product liability)

Have Become Partl/ers of the Firm

J. CHARLES Do

CHERTY

&

M. SEAN HATCH

Have Become Associated with the Firm

M. TODD WOOD

Has Become Of COl/llselll1 the Fayeffeville Office

1996-97 UTILE ROCK OFFICE 200 West Capitol Avenue, Suite 2200 Little Rock, Arkansas 72201-3699 (501) 371-0808 FAX: (501) 376-9442

FAYETIEVILLE OFFICE 101 West Mountain Street, Suite 206 Fayetteville, Arkansas 72701 (501) 575-0808 FAX: (501) 575-0999

The New Justice 路 Past and Present: Is it Deja Vu All Over Again?

by Associate Justice Tom Glaze

Supreme Court justices. I Excitement and the feeling of expeclalion pemlealed the air; Arkansas, after all, was about to

Congressman, who had also previously served most capably as Arkansas' Anomey General, readied himself to commence a new career as a jurist. And the Lhird novitiate about to ascend to the High Court's chief justice position was a seasoned, legal warrior who had served the public as a workers' compensation commissioner, municipal judge, prosecuting attorney, and general jurisdiction trial judge. Wilh these three well-known and respected public servants, it was not surprising that a standing-roam-only audience was in attendance at this fonnal occasion. It was. indeed, a notable occasion.

receive ils lirst woman member elected to the stale's highest Court. Added to this historic event, a former United States

F

While in the Iradi,iollal sense OUf newest justices will share many of the same experiences fhe {hell-new justices experienced ;11 1967, stark and significoll1 differences exist that bode changes ;11 how lhe Court may operate in the /lIIure.

n Monday. January 6, 1997, many of us crowded inside and outside the courtroom of the State Justice Building to witness the swearing in of three new

O

10 Tl/ Irlalllsl.llll/r S,rillilli

or us more "mature" onlookers, it was difficult 10 suppress memories of thirty

years ago when, on January I. 1967, our Supreme Court experienced a similar change. Then, for the first time in a century, lhe Arkansas Supreme Court seated four new justices, all at once. 2 Questions quietly arose. especially in legal circles, concerning lhe effect the four new juslices might have on the Supreme Court's work. Wilh the able assistance of lhe three incumbent justices, and in particular, Justice George Rose Smith, the four newcomers hit the road running, and the decision-making and opinion-writing process continued unabated. Court observers were quickly reassured that having four new justices on the High Courl would nOl be its downfall. While all fine minds will differ on occasion, it is fair to say that precedent and reason

largely prevailed on the new Court, and appellate business continued as usual.

Perhaps what became most apparent on the 1967 Court was its individual members' different or contrasting writing styles. rather than the results or decisions

Iy related to the tremendous surge in litigation in recent years. As a consequence, a record number of cases are being filed in state trial courts, and the Arkansas Supreme Court now averages annually over 550 majority, wriuen opinions com-

the justices rendered.

pared to the 1967 Court's written decisions of 340. When one translates these

s in 1967, our new justices in 1997 readily availed themselves of the experiences offered by incumbent justices. In particular, Justices Newbern and Brown each lent a helping hand by conducting "skull sessions" with the new jus-

numbers into the expenditure of judicial lime, today's justices musl work a seven-

A

tices, imparting to them a veteran's knowledge. experiences. and suggestions in commencing their new roles as Supreme Coun justices. Whjle Justice

Smith is no longer with us in person

10

give the guidance he rendered the new justices in 1967. our incumbent justices

day week, if they expect to decide and hand down all cases submitted 10 the Court during its annual session. As a point of reference, I emphasize that the yearly submission-decision and disposition goal, with minor deviations, has been achieved by the Court for over a century.

Committee is well aware that the work load of these two committees has been on the rise, necessitating more lime from the

Court in its supervisory capacity. In addition to these two committees, the Court

now shepherds thirteen others. Most of them were formed in the '70's and 'SO's and four more in the 90's. Included are committees responsible for criminal and civil rules of procedure and jury instructions, which require regular studying and revision. In short, leday's Court members must devote time to attending COI11minee meetings and to explaining and

preseming the work product of those commitlees to the Court for its approval.

ther functions our new justices must

O

undertake, that their 1967 counter-

quickly referenced Smith's "A Primer of

parts did not, involve their liaison roles to Supreme Court committees. From its for-

Opinion Writing, For Four New Justices"

mation, the Court has always had to

it continues to be the best explanation on how decision-making and opinion-writing respon~ sibilities are perfomled by members of the Supreme Court 3 Whether the new members have studied hard to prepare for

superintend the admission of lawyers into

to our new colleagues, since

concerning the Court's Board of Law Examiners and Professional Conduct

the bar and fulfill its responsibility in

t might be informalive 10 some readers

I

to point oul that mOSI of the Court's new or additional roles, assumed through its commillees, have been in response to Bar Association petitions and suggestions, spelling out existing voids and needs thai

monitoring lawyers' misconduct. Anyone

the Court has been requested to fill and

having even the least bit of knowledge

remedy. Too, over recent years, the

their new roles as justices or whether they

are simply quick studies, I can honestly and fairly report that they come to conferences prepared and offer valuable input.

The Court's decision and opinion process continues functioning quite well.

W

hile in the traditional sense, our newest justices will share many of the same experiences the then-new justices experienced in 1967, stark and significant differences exist that may bode changes in how the Court may operate in the future. Without overstat.ing Ihe point, I think it is fair 10 say the judicial role thai justices assume today is much more difficult and complex than the one thai confronted a justice thirty years ago.

Although, constitutionally, the Supreme Court has always been vested with the power and responsibility of superintending inferior courts, in 1967, there were

only forty-five law and equity courts. In contrast, today Arkansas has 104 general jurisdiction courts. This figure, I should add, does not include the Court of Appeals which was established in 1979.

Back Row, Left to Right: Judge Margaret Meads, Judge John Mauzy Pittman, Judge John F. StrOUd, Jr., Judge James R. Cooper, Judge Andree L. Roaf, Judge Terry L. Crabtree, Judge Judith Rogers, Front Row, Left to Right: Judge Sam Bird, JUdge John E. Jennings, Chief Judge John B. Robbins, Judge Oily Neal and Judge Wendell L. Griffen

f course, Arkansas' increase in ils number of courts and judges is direct-

O

11 Thdrlmall,all)'r Spril! 199i

Court has responded to General Assembly

& HALEY, P.A.

AR OLD, GROBMYER

requests, and in doing so, has assumed

responsibility in malleTS such as the unau-

ANNOUNCES

thorized practice of law, child support guidelines. alternate dispute resolution.

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and procedural rules required in judicial

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discipline proceedings.

F

inally, the present Court must keep a watchful eye on its business and

administrative side, which grows with every passing year. Today for instance,

the Coun's new justices. by law, will undertake. along with their colleagues, the broad responsibility for the efficienl operation of the judicial branch. To achieve this objective, they will utilize the Adminislralive Office of the Courts. which has more than a $2 million budget and a twenty-eight member staff. In 1967, the Court's administrative staff (I hen c"lIed Ihe Judicial Departmem) h"d a budgel just under $34,000 and only two employees. And while Ihese AOC budgeting cOllcems are enough for the Court to oversee, the Court must also keep a vigilant eye over the monies derived from bar and Iicense-admitlance dues lhal the Court utilizes in underwriting its committee work. In sum, each justice assumes a solemn responsibility to be good stewards of the increasing amounts of monies the Court requests, budgels, and spends towards ensuring an efficient judiciary.

T

oday's Court is obviously differenl in meaningful ways from the Court that oper"ted in 1967, ""d changes will assuredly continue to take place.

T<XIay's new justices join the Court at an exciting time, but also at a time when new issues and projecls are surfacing. For example. in the recelll 1997 Winter Issue of The Arkansas Lawyer, Arkansas Bar Association President Harry Truman Moore flung down the gauntlel, challenging Bar members to develop ways to polish their images. He raised questions on whether Ihe Stale has too many lawyers, and whelher I"wyers should undergo a fitness tesl or b"ckground check before laking the bar exam. He further asked if all new lawyers should be required to complele a Bridging Ihe Gap course before receiving a license, and also mused over the possibility of instituting internship or residency requirements COJllillued on Page /6 See "New Juslice"

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.

Q) '

CO

SUPREME COURT CHIEF JUSTICE

W.H.

"DUB" ARNOLD

·Born in Clark County, Arkansas May 19,1935 'Graduated from Henderson State University and Arkansas Law School in Little Rock ·Married to Earlene Arnold Three children Five grandchildren ·Has served as a Deputy Prosecuting Attorney for Clark County, Prosecuting Attorney for the 8th Judicial District, Chair 01 the Arkansas Workers Compensation Commission, Clark County Municipal Judge, Prosecuting Attorney lor the 9th Judicial District East, and CirCUit-Chancery Judge for the 9th Judicial District East

Q) Q) ~ c:::l....

I~ •

•

cn~

UJ ==1 l..L.

a

S,ril! 1m

E Q) 'Ic~

a:§-

a...cn

Left to Right: Justice Ray Thornton, Justice Annabelle Clinton Imber, Chief Justice William R. Arnold II lIr Irlllllll.lll)rf

Q)

SUPREME COURT ASSOCIATE JUSTICE ANNABELLE CLINTON IMBER

·Born in Heber Springs, Arkansas July 15,1950 'Graduated Irom University 01 Arkansas at Little Rock School 01 Law, The Institute lor Paralegal Training and Smith College, Northampton, Massachusetts ·Married to Ariel Barak Imber One son ·Has served as Chancery and Probate Judge (6th Division) lor Pulaski and Perry Counties, Arkansas; as Circuit Judge (5th Division) for Pulaski and Perry Counties; and as an attorney lor Wright, Lindsey & Jennings Law Firm in Little Rock

ARKANSAS COURT OF ApPEALS

SUPREME COURT ASSOCIATE JUSTICE

ARKANSAS COURT OF ApPEALS JUDGE ANDREE

JUDGE MARGARET MEADS

RAY THORNTON

·Born in Memphis, Tennessee October 14,1949

'Graduated from Sheridan High School, Yale University and University of Arkansas School of Law

·Graduated from Jonesboro High School, Arkansas State University, and University of Arkansas at Little Rock School of Law ·Married to Richard Meads Four children

'Graduated from Muskegon Heights High School in Michigan; Michigan State University with a BS. in Zoology and the University of Arkansas at Little Rock School of Law ·Married to Dr Clifton G. Roaf Four children Three grandchildren

'Has served as Arkansas Attorney General, President of Arkansas State University, President of the University of Arkansas, Member of U.S. Congress· 2nd Congressional District

·Has been a partner in Walker, Roaf, Campbell, Ivory and Dunklin and has also served as an Associate Justice on the Arkansas Supreme Court

ARKANSAS COURT OF ApPEALS JUDGE TERRY

ROAF

·Born in Nashville, Tennessee March 31,1941

·Born in Conway, Arkansas July 16,1928

·Married to Betty Jo Mann Three children Five grandchildren

L.

L.

CRABTREE

·Born in Bentonville, Arkansas July 9,1951 'Graduated from Bentonville High School, University of Arkansas, and University of Arkansas School of Law ·Married to Diane Crabtree Three children ·Has served as a Public Defender, City Attorney, Municipal Judge and Circuit-Chancery Judge

ARKANSAS COURT OF ApPEALS JUDGE SAM BIRD

·Born in EI Dorado, Arkansas January 19, 1940 ·Graduated from Century High School, Century, Florida; Florida State University and University of Arkansas School of Law ·Married to LeAnne McElveen Two children ·Has served as Captain in the U.S. Air Force, an attorney with Williamson, Ball & Bird in Monticello and as a Circuit-Chancery Judge, 10th Judicial District

Ii Thr ,\r~an\lS l,allJPf

Sprin~

1997

COIl/illl/ed/rom Page /2

JONES LAW FIRM

"New Justice"

I

or establishing a statewide mentor program. Moore further posed the issue on

pleased to announce the association of

whether license fees should be increased fund additionaJ resources for the Professional Conduct Committee.

KE DALL

(0

AND IIG TRANG CUNG

I

n addition to the concerns the Bar Association and others might want this Court to address. the justices must and will, I am sure. adopt a sound and reasonable procedure which will assure bar members and litigants that their cases at trial and on appeal will be smoothly and timely handled to disposition. On the appellate level, the Court of Appeals and its added members have done much to

expedite the reduction in thal Court's backlog of cases, but new measures may still be needed to avoid case-disposition delays in the future.

11

(C

lones Law Finn Attorneys at Law Parklane Building, 3200 Rogers, Suite 105 P.O. Box 8070, Fort Smith, AR 72902-8070 Telephone: (501) 783-1887· Fax: (501) 783-4015 E-Mail: loneslawfinn@msn.com Robert L.lones, III Charles R. "Buddy" Garner, Jr. Kendall B. Jones Lynn Manning Flynn R. Scon Zuerker

sum, as the Court with its new jus-

ils members must keep in mind the

Associare jusTice Tom Gla:e siTS on T!le Supreme COUrT of Arkansas.

EndnOl.es I. Chief Justice W. H. Arnold and Associat.e Justices Annabelle Lmber and Ray Thornton officially joined Associales David ewbem. Tom Glaze. Donald Corbin, and Robert Brown on this date.

2. ew Associate Justices Lyle Brown.

John A. Fogleman. J. Fred Jones. and Conley Byrd joined incumbents Chief Justice Carleton Harris and Associate Justices George Rose Smith and Paul Ward on January I. 1967.

3 . Smith, G.R., A Primer 0/ Opinion

WriTing. For FOllr New jusTices, 21 Ark. L. Rev. 197 (1967-68).

NG THI TH V-TRANG)

in the practice of law.

1tices moves forward to the next century, problems, accomplishments, and history Ihal preceded them. But we cannol rely just on the past or the old ways of doing business when new, different, and more difficult challenges are on the judicial horizon. I know our new justices look forward to mceling those challenges.•:.

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CLE & APRIL

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19

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Ii

n, IrlmlllJM)tr

Spril! Illi

PRO/CON

Pro: The Case or Keeping Our Two Law Schools

by Leonard P. 5trickman I have now had the privilege of serving as the dean of the University of Arkansas

School of Law (that's the one in Fayetteville) for nearly six years. During thai time I have experienced the challenges that seem to come with all law school deanships. and an extraordinary number of regards that have come from

the achievements of students, faculty and alumni.

I came to Arkansas in 1991 with the knowledge that during the previous few years. the facilities problems that had plagued the University of Arkansas at lillie Rock School of Law had engendered discussion and debate within the Bar and the legislature about the wisdom

of maintaining two law schools in the state. Afler finn recommendations from a blue ribbon committee of the Arkansas

I! Til

\rbIlilLJ~)"

!,rill Illi

Bar Association in 1985. the University system and the legislature had decided to provide new facilities for UALR and to maintain two law schools.

Other SlaleS have, from lime to time, undertaken consideration of closing one of their state-supported law schools. In Ohio, Illinois, and Kentucky, all of which have at least three state-supported schools, the debate was had, a resolution to maintain exisling schools was reached, and the issue receded from public conlention. I must concede thaI it has been one of the great frustTations of my job thaI the issue seems to sustain an enduring life of its own in Arkansas, notwithstanding Ihat the argumellls of those who would change the status quo by closing one of our two fine law schools have been answered repeatedly. As the editors

of the Arkansas Lawyer have asked for my response 10 David Hargis' proposal without permitling me to see it first, I shall, after asserting the value of legal education to students and universilies, respond to those argumenls which have been made before, and those I have heard in dialogue with lawyers and others across Arkansas during the past six years.

A. TilE VALUE OF A LAW SCIIOOL EDUCATION FOR ITS STUDE TS A

'Âť ITS

UNIVERSITY

Those who have enjoyed or endured three years of legal education will in most cases attest 10 its value. not only for the practice of law, but also for the practice of life. The training in reasoning, analysis, wriling. and advocacy provided by legal education has application well beyond the confines of the practice of

PRO/CON law. It is thus unsurprising that a significant portion of the leadership of the state of Arkansas is provided by those with

prised of Arkansas residents. Still, the two law schools had only 16.5% overlap

clerkship opportunities in unprecedented

in applications for the classes entering in

numbers. Career services directors at

degrees from its two law schools. Not only in the bench and bar, but in business,

1995 and 1996. To close one of our law schools would undoubtedly drive some of

finance and govemmcni can the products

our citizens out of state to attend law

of our two law schools be seen providing leadership crucial to Arkansas' growth

school. There is no reason to believe they

and progress.

There are few great comprehensive slate universities without law schools.

The reason is clear. Universities throughout their many disciplines address impor-

tant issues of public policy. Public policy cannot be considered apart from its relationship with law. OUf law faculties are important to the work of our colleagues in other disciplines.

B. DOES ARKANSAS HAVE TOO MANY L.AWYERS?

There are those who would argue thaI

would not return home (in many cases without as good a legal education as they would have received here) in order to practice law. We would, however, be

depriving many of those who could not afford out of state tuition of effective access to legal education.

C. ARE THERE JOIlS FOR OUR GRADU路 ATES?

Apart from fields in the health sciences, there are probably no units in our universities with stronger placement statistics than our law schools. Once one reads out the nine 1996 graduates of our

one lawyer is one too many. I trust that

two law schools enrolled in LL.M pro-

this view is not substantially represented among the readership of the Arkansas Lawyer.

grams, and the six not seeking employment, our combined placement rate was

Assuming some lawyers are either nec-

essary or useful, how does one know when or whether we are educating too

many of them? One way mighl be to detemline what proportion of our citizens are lawyers compared with similar calcu路 lations in Olher states. The last computation of lawyers per capita per state in the

United States was done by the American Bar Association in 1991 1 Of the 51 "states" (that is 50 slates plus the District of Columbia) Arkansas ranked 48th with one lawyer for each 549 citizens. The states with even fewer lawyers per capita were West Virginia, North Carolina and South Carolina. Interestingly, the states which at that time had no law schools,

Alaska, Rhode Island, and Nevada, ranked respectively 8th, 20th, and 37th in lawyers per capita. Arkansas ranked even lower when the computation was private

practitioners per capita, 50 of 5 I; only North Carolina had Illore citizens for each private practitioner than Arkansas.

I understand (and disagree with) the argument that American society is overlawyered. But if that argument has force

in New York (one lawyer for 195 citizens) or Massachusetts (one lawyer for 2 I7 citizens), it has little weight in Arkansas where large numbers of our citizens go entirely unrepresented.

Eighty percent of the entering classes at both Arkansas law schools are com-

95.5% six months after May graduation for the 88% of our graduating classes we were able to locate.

Employment of law school graduates is rising nationally, but it is higher for our graduates than for those of most law schools in America. A substantial majori-

ty of the graduates of both Arkansas law schools remain in the state. The greater problems experienced elsewhere seem to

be the product of the restructuring of that portion of the legal profession occupied by the megafimls. As some firms have failed and others have merged or downsized, jobs have migrated to other sectors of law practice; new law school graduates have sometimes been caught in the transition with a reduced number of readily identifiable entry level jobs. Arkansas is a state without megafmns. Most gradu-

ates of both law schools tend to find employment in finns with between two and ten lawyers. Those are the finn which continue to predominate the

Arkansas legal landscape.

It should be nOled that the successful placement results of both law schools are achieved with only small numbers of recent graduates entering solo practice.

At last look, about two years ago, only about five percent of the graduates of the two law schools were hanging up a shingle after gaining admission to the Bar.

One other point about placement.

Lawyers in proximity to bOlh law schools

are seeking our students to fill part-tin-:e

both law schools report that there are Illore parHime law student clerkship opportunities in Central Arkansas and Northwest Arkansas than there are avail-

able students to fill them.

D. CAN TIn: STATE AfFORI) TWO LAW

SCHOOLS?

Whether any state can afford a higher education system or any of its component units is uILimat.ely a subjective question of policy. How much do you value state

parks, medical care for the needy or higher educalion? Should the legislature close some of its four-year universities or two-year community colleges because some think that we can't afford as much higher education as we presently have? 1 have outlined why I believe t.he maintenance of two law schools is desirable. If state revenues fall, should t.he state sacrifice one of its law schools, its four-year univcrsities, its prison projects, ctc.?

Other than to say it would not be in the public interest to close a law school, I do not feel competent to suggest the prioritization of expenditures for the state of Arkansas.

That said, there is probably no grealer bargain in higher education for the taxpayers of Arkansas than our two law

schools. Law students pay higher tuition than the other students (including graduate students) at their universities; roughly

30% of our law school budgets come from the Legal Education Fund, which comcs from court costs rather than gcneral revenues; private fund-raising is contributing an increasing portion of law school expenditures. Hence, taxpaycr generated revenues contribute proportionately less to the costs of legal education than they do to most other components of public higher education in the Sl.ate.

CONCLUSION

This state has two fine law schools of which the Bar and the citizenry should be proud. Both have well-qualified students who will find jobs after graduation and serve the state well, both in the practice of law and in other fields. It is time to give this issue a rest. .:.

I. ABA 1991 Lawyer Statistical Report.

Leonard Strickman is fhe Dean of fhe

Universiry of Arkansas School of Law.

19 Tbr ,Irkmas I,a")'"

Sprilg 1991

PRO/CON

Con.' The Case Against Keeping Our Two Law Schools

by David M. Hargis It is proposed. for the good of the State of Arkansas. for the bettennent of legal education in this Slale. for the bettennent

of the legal profession, that our two law schools merge, that neither die, that the

surviving entity - perhaps the Roben A. Leftar School of Law (after the most distinguished legal mind mis state has ever produced), perhaps in conjunction with

would be the inevitable result. Does reason ever defeat provincialism?

About twenty-five years ago, two editor's comments appeared in the Arkansas Law Review opposing the expansion of

legal education in Lillie Rock, one com-

addressed up front. I f it is true lawyers are being. and have been for some time, produced in this stal.e beyond societal needs and absorption rates, then no

change effected today would become apparent for a period of years, probably a decade or more. Discounting the advoca-

cy of a single, publicly-financed law

the William Jefferson Clinton Presidential

ment directly in point, the other indirect-

school as a self-interested practitioner's initiative misses the point. It is believed

Library (where the claim would be obvious for this plum up for grabs) - be cen-

ly. [26 Ark. L. Rev. (4th Vol, 1973); 27 Ark. L. Rev. (1st Vol, 1973).] The battle,

young lawyers might ultimately draw some benefit from the change proposed,

tered for all Juris Doctorate studies in central Arkansas, specifically in and

which could have been won then, was not waged, and the war has since been lost.

The Little Rock institution evolving since that time has secured its own place in legal educalion, and when the question is now considered, the reasoning is the same, but the answer changes.

The ad hominem approach, let it be

their numbers being more manageable. their educations perhaps being more publicly respected, but this writer is no longer in the young lawyer category

around MacAnhur Park, Little Rock. All financial inducements necessary 10 equal

or exceed all quality-of-life considerations would be afforded transferring law professors and staffs, the goal being the loss of none. The history of the first

to

would not be lost: the modem success of the other would continue. A nationally significant law school in the first rank

TbP !rlmas I,lll!,r

Sprio! 199i

(though, perhaps, still in denial of that truth). It is not out of any acrimony this is wrillcn either, as this writer's personal

preference would be the opposite of the

PRO/CO proposal made. True respect for the Fayetteville faculty and loyalty to the

law school deans submitted a data compilation to the Executive Council of the

institution there exist. Both can be moved, neither lost.

This, of course, is not a study, nor does it purport to be. However, at least some of the pertinent data is as follows: Another chart of some pertinence for the only three years infom13tion has been secured is as follows: There are various reasons the data given lacks precision. For instance, Arkansas

Arkansas Bar Association. In each instance, and periodically throughout the intervening years, interest existed in the political arena for closing one school or

the other. In the 1985 study, data was accumulated under circumstances where

objectivity might be challenged, and in lrue adversarial posturing, data suggest-

ing the wisdom of a consolidated law school was dismissed as "myth no. 1,"

Year

Lawyers Ark. Bar Ass'n enrolled Ark. Sup. Members Court

feb.lJuly Bar Examinees VofA VALR Other

1990

5216

3848

79

1991

5478 (up .050)

4005

34 85

1992

5739 (up .048)

4066

1993

5910 (up .030)

1994

Add'llawyers enrolled Ark. Sup. Cl.

25(l6%) 51 (Feb. Data Unk.)

229

2,350,624

40 65

28(27%) 38(20%)

267

2,371,000 (up .009)

52 82

36 84

39(30%) 37(l8%)

275

2,395,000 (up .010)

4139

30 95

24 82

45(45%) 51(22%)

245

2,399,000 (up .002)

6017 (up .020)

4025

53

48(37%) 28 (July Data Unk.)

244

2,453,000 (up .022)

1995

6233 (up .035)

3932

BAR EXAMINATIO DATAUNKNOW

288

2,483,769 (up.012)

1996

6401 (up .030)

4031

BAR EXAMINATIO DATA UNKNOWN

267

Supreme Court registrations include some lawyers who practice elsewhere and some who do not practice Jaw. However, there

Year

1991 1992 1993

"myth no. 2," and so on. Each of these "myths" will be briefly noted, beginning with what is believed to be a major flaw,

Arkansas Bar Exanlinations Passing Total Taking

Failing

290 330 327

27 62 79

may also be some who do not register

with the Arkansas Supreme Court, perhaps some occupying legal positions with

263 268 248

Percentage Passing 91% 81% 75.8%

or itself a myth, in the data used by those who oppose consolidation of legal education.

the federal government, perhaps even some law professors, and pro hac vice enrollment in stale and federal courts located in Arkansas seems increasingly common but is not a compiled statistic,

THE SUPPOSED MYTIl, THAT THERE ARE Too MANY LAWYERS. Central to the sLudy in 1985, and to the data compilation by both deans in 1994, was the

In 1985, the Arkansas Bar Association conducted a study of legal education in this state, and at the end of 1994, the two

(I to 601 in the 1985 study; I to 549 in Lhe 1994 data compilation). It appears in

ratio of lawyers to the general populalion

both instances the ratio was determined

tl

nt IrlulilIJ")tr

Spri.! 19li

Truth in Lawyer Advertising

by William A. Martin "Trulh in Advertising" is the way Donis Hamillon, Chair of the Arkansas Bar Association Lawyer Advertising

Comminee. aptly describes the proposed changes 10 Arkansas' Model Rules of Professional Conduc!. Practicallyeveryone agrees with this objective. The issues arise when we try to son out what is true, what is misleading or polenlially misleading, what is useful or hamlful to consumers, what invades privacy, and then

square proposed rules with the law regarding the First Amendmcl1l and commercial speech.

HOUSE ACTIONS

The House of Delegates al its meeting on January 25, 1997, approved recommending 10 the Arkansas Supreme Court thaI it amend Model Rules of Professional Conducl 7.1. 7.2, and 7.3 (found in the Rules Volume of the Arkansas Code Annotated.) The recommendations add language - nothing is taken away from the present rules.

The House proposals can be fined into

472 U.S. 1004 (1985), prior order ralified,377 .W. 2d 643, (Iowa) dismissed for want of a substantial federal question.475 .S. III rehearing denied, 476 U.S. 1165 (1986) is found to be the law the next time the U.S. Supreme Court considers the issue.)

3. Place time restrictions by limiting the sending of solicitation leuers to fami-

lies of decedents wilhin thirty days of an accidenl causing that death (less reslriclive Ihan the Florida rule upheld in Florida Bar v. Weill For It. Inc.); and 4. Require disclosure of certain infornla-

lion (required disclaimers upheld in Zallderer v. Ohio Office of Disciplinary COllnsel417 U.S. 626 (1985Âť.

Targeted written communications

would be required to clearly stale in large red capital letters on the enve-

lope, "ADVERTISEMENT," include the word "ADVERTISEME T" in capitals on each page, begin with a statement advising the person receiving it to

FfRM WHO WILL ACTUALLY PERFORM THE SERVICES, BUT OT OF CLIENTS. ACTORS OR OTHER I DIVIDUALS. DRAMATLZATIO IN ANY ADVERTISEMENT IS PROHIBITED. The House changed Ihe opening clause of Rule 7.3(b) (Page 793) from: "Apart from the situations described in (a);' to read: (b) OTWITHSTA DI G THE PROHIBITIO S DESCRIBED (a)...

While Ihe Lawyer Advertising Committee report had brackets around the

words "[or recorded]" in Rule 7.2(a) (page 789) the minules of the January II. 1997, meeling of the Executive Council show when Rule 7.2 was considered only a change 10 Rule 7.2(d) was voted on.

At the House meeting the Committee

Chair, in response 10 a queslion, said (d) was the firsl part of Rule 7.2 10 be changed. There was no vote to recom-

four categories, misleading advertise-

disregard it if he or she had already

mend a change to Rule 7.2(a). Removal

ments, content restrictions, time restric-

retained a lawyer in that matter and include an invitation to send any com-

of "or recorded" would have prevented the use of automatic telephone recordings

proposed rules:

plaints to the Supreme Court Commiuee on Professional Conduci

I. Address misleading advertisements, declaring a testimonial to be false or misleading (and therefore prohibited), requiring written communications be sent only by regular mail, and prohibiting Ihem from having Ihe appearance of legal pleadings or other legal documents. "Under Cenrral Hudson IGas & Electric Corp. v. Public Service Comm'lI of N.Y. 447 U.S. 557J, the

with an address. Also. all communications would have to include the name of a lawyer Iicensed in Arkansas who was responsible for the content and dis-

to call polenlial c1ienls. A general prohibition for lelephone recordings was upheld in Van Bergen v. State of Minnesota 59 F.3d 1541 (8th Cir. 1995).

In that case Ihe Court seemed to take

tions, and disclosure requirements. These

government may freely regulate commercial speech that concerns unlawful activity or is misleading:' Florida Bar

v. Weill For It., Inc. 515 U.S. _, 115 S. CI. 2371, 2376 (1995).

2. Restrict Ihe conten I of advertising by limiting photographs, voices or images

to those of the lawyers who will actually perform the advertised services and prohibiting the use of clients, actors, or

other individuals for these purposes plus prohibit any dramatization.

(Probably permitted as 10 lelevision and radio advertising if Committee all Professional Ethics and Conduct v.

Hllmphrey 355 N.W. 2d (Iowa 1984), judgment vacated and remanded [for reconsideration in light of Zanderer).

close the geographic location of Ihe office of Ihe attorneys who would perform the advenised services.

The Commitlee's recommendations are published at 49 Ark. L. Rev. 785 el seq. and are not reprinted here. [The Arkansas

Law Review and The ALR Law Journal are mailed to each Arkansas Bar Associalion member.] Words 10 be added are printed in capital leners in both the Law Review and in this summary. The

House of Delegates adopled the recommendations for change in Rules 7.1 (page 788), 7.2(d) (Page 789), 7.3(a), (c), (d) and (e) (Pages 793 and 794, not the version on 791 and 792), as published.

The House added Ihe words "who are members of Ihe firm" 10 Rule 7.2(e) (page 789). changing it to read: (e) ADVERTISEMENTS MAY INCLUDE PHOTOGRAPHS, VOICES OR IMAGES OF THE LAWYERS WHO ARE MEMBERS OF THE

judicial notice that recorded telephone solicitations are intrusive.

LEGAL CONSIDERATIONS

Lawyer advenising decisions have inspired voluminous commentaries. For the reader who wishes more background and recent thought with an Arkansas

emphasis, Issue

umber 4. Volume 49, of

the Arkansas Law Review, (mailed in

February 1997) slarting at page 669, is devoted to the subjec!. A fine case not on Florida Bar is included at 19 UALR Law Jour. I3 I. Ihe Fall 1996 issue. These articles and case notes provide an extensive review of case law and comment on lawyer advenising and freedom of commercial speech.

Unlil Virginia State Bd. of Pharmacy v.

Virginia Citi:ens Consumer Council. Inc ..

425 U.S. 52 (I 976), commercial speech was nol regarded as protecled by the Firsl Amendment 10 the United States Constitution. There a state statute prevenling price advertising of prescriplion drugs was invalidated. Bates v. State Bar

of Arioollo, 433 U.S. 350 (1977), quickly followed and opened the door for lawyers to advertise. Until Florida Bar most cases that reached the United States Supreme Court invalidated state efforts to restrict lawyer advertising, often in part because the record did not make a case for the restriction.

Since 1980 the basic framework for evaluating commercial speech restrictions has been the Central Hudson test.

Florida Bar described that test for advertising which is neither false nor misleading as having: "[T]hree related prongs: first, the government must assert a substantial interest in support of its regulation; second, the government must demonstrate that the restriction on commercial speech

directly and materially advances that interest; and third, the regulation must be 'narrowly drawn." 115 S. Ct. at 2376. [bold supplied] Three weeks after Florida Bar the Eighth Circuit in Van Bergen observed: "In a recent decision, Florida Bar v.

Blakley [Weill for II, IIlC.J, _ U.S._ (1995) the Supreme Court reaffirmed the Central Hudson test as the appropriate standard to apply to restrictions on COI11mercial speech ..."

While satisfying the Cell/ral Hudsoll tests are currently the most likely route to sustaining lawyer advertising regulation, the U.S. Supreme Court in 44 Liquormart Inc. v. Rhode Island, 517 U.S. _ , 116 S. Ct. 1495 (1996), with all Justices agreeing in the result but no more than four agreeing on the wording of any part of the First Amendment analysis, struck down a Rhode Island law Ihat prevented price advertising of liquor. The opinions seemed to express discomfort with the Cell/ral Hudsoll test and may be moving to treating commercial speech as entitled to prOleclion similar to political speech.

Probably the most likely route to sustain lawyer advertising rules is to have overwhelming evidence that the Cemral Hudson lests are satisfied. In real life evidence is often unclear and subject to varying interpretations.

The April 1996 study of public opinion conducted by the Miller Research Group for the Arkansas Bar Association, together with the Florida Bar opinion and the studies from other states (such studies may be considered in preparing rules, City of Remon r. Playtime Theatres,lnc., 475 U.S. 41, discussed in Florida Bar at 115 S. Ct. 2378) in my opinion provide enough evidence to support a thirty-dayafter-an-accident restriction on direct mail solicitation. The study showed 57% strongly disapproved mail advertising and another 41% slightly disapproved. These figures are greater than the range of 27%

to 45% who reacted in negative ways to direct mail in Florida Bar, 115 S. Ct. al 2377. Follow up questions backed up the negative Arkansas reaction.

Because an interviewer can hold the attention of a respondent for only a limited time, there were no follow up questions to responses showing negative reactions to olher forms of lawyer advertising.

Therefore the study does not contain evidence showing the need for the rules declaring testimonials or endorsements 10 be misleading. Nor does it contain evidence showing the need for the rules where the implied reason for them is to prevent misleading consumers such as the rule prohibiting the use of photographs, voices or images of client, actors or individuals other than lawyers who are members of the fiml who will perform the advertised services; the rule prohibiting dramatization; and the rule requiring identification of mail as advertisements and requiring them to avoid the appearance of legal documents. Other slates have adopted similar rules and we in Arkansas will have to rely on their sludies and what the courts have said about some of those rules and the justification for them unless we conduct more studies or hold hearings. Likewise, the study does not address the need for required disclosures.

Less than "strict scrutiny" appears to be the test in commercial speech cases. The level of scrutiny applied by the five-justice majority of the Supreme Court in Florida Bar was "intemlediate scrutiny," 115 S. Ct. at 2375. In 44 Liquormar/ Justice Stephens, writing for four justices, opined that a "special care" review standard was appropriate in that case's complete ban on price advertising. He observed the 30 day restriction in Florida Bar was upheld: " ...Iargely because it left so many channels of communication open to Florida lawyers." I 16 S.C!. 1495, 1507.

The proposed rules do not place a complete ban on any truthful information, although Lhey limit the time or the manner in which some of it may be presented.

The proposed rules should have a reasonable chance of being upheld in federal court, although forecasting what might happen if they are challenged is risky and difficult. .:.

Col. William A. Martin is now retired. He serl'ed as ÂŁxecmh'e Director for the Arkansas Bar Association for thirteen years.

THE LAW FIRM OF BRIDGES, You G, MATTHEWS & DRAKE

PLe

is pleased to announce

JAMES

C. MOSER, JR.

has become a member of the firm F. G. Bridges (1866-1959) Frank G. Bridges, Jr. (1906-1973) Paul B. Young Stephen A. Matthews Ted N. Drake Joseph A. Strode Jack A. Mc ulty Terry F. Wynne

James L. Moore, rn Michael 1. Dennis David L. Sims R. Scott Morgan Jeffrey H. Dixon Cary E. Young James C. Moser, Jr.

315 East Eighth Ave. P.O. Box 7808 Pine Bluff, AR 71611 (501) 534-5532 tl

l~

Irtll\illuytr

S,ril! 1917

Re ections on Rodney Slater

by Wendell L. Griffen During the summer of 1977 I was attending summer classes following my

on me that I suspect are typical of his

first year of law school. My wife was

impact on most people that meet him.

preparing 10 move to 51. Louis to complete

First of all, he struck me as being a thoroughly engaging person - a smart, courte-

the internship required for her Ph.D. in psychology. Amid the unccnainties of that lime

and

experience,

I mel Rodney Earl

Slater. He drove a Chevrolet Impala, hailed from Marianna, and had attended high school with Dennis Winsron who was

playing football for the Pillsburgh Steelers.

They played football together in high school before going separate ways Winston to the

niversily of Arkansas and

Rodney 10 Eastern Michigan

niversily

where he played running back on the foot-

ball tcam and was a team captain during his senior year. He joined the debate team at EM and was a leading debmer. Now

he had come to Fayelleville to all end law school and become my friend.

Rodney made two dislinci impressions

ous. and cordial fellow who seemed everready 10 make a new friendship or strengthen an existing one. Secondly.

Rodney impressed me as being a man on a mission. He knew who he was, why he was in law school, what he hoped 10 accomplish wilh his legal education. and where his strength was ba ed. This was no shallow firsl year studenl attending classes in a daze or merely viewing law as an avenue to social stalus and relHlive financial security. o. Rodney Simer viewed law as an instrument of social progress and

Rodney and I began building a friendship around what must now be considered

the most unlikely of factors: my cooking.

As pathetic as my cooking was (and remains), Rodney ate it. We shared Pearl Bailey's recipe for fried liver and onions thai Patricia taught me 10 make, and we

talked about what law school meant for our futures and the future of our involvement in society. I'm nol sure that our meals were good for his digestion. but our conversations helped us stay focused on why

we were in law school. Rodney talked over our meals about how he hoped 10 open doors, minds, and build relationships using law as his key. We know from painful and firsthand experiences how law

societal stability. He was going to be a

had been used to prevent people of color, women, and poor people from being full

lawyer so that he could make a beneficial difference in the world.

panicipants in American society, and we hoped 10 make a posilive difference.

Rodney became presi-

dent of the Black American

Law Students Association during his second year in law

school, and he quickly began fulfilling his mission of

building bridges for progressive

change. He had been a popular first year stu-

dent, and his popularity helped create new relalion-

hips between BALSA and the Student Bar Association.

~I

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Rodney's leadership of BALSA was a foretaste of the way that he would lead the W. Harold

Flowers Law Society years later as a lawyer, just as the respect that he earned from the faculty and law students from both races and genders was a preview of the respect that he would later earn in public life.

Near the end of his second year in law school, Rodney met George Haley, one of t.he first black graduates from the law school. They developed an immediate fondness for each other that has grown over the years. George Haley and Rodney Slater share many common attributes. Each is blessed with extraordinary insight into human relations. They are men of superior intellect and friendly dispositions. Although they have accomplished much more than society expected people from their backgrounds to achieve, they are both uncommonly humble and unpretel1lious. George Haley became a mentor to Rodney, and Rodney has respected his wise and sensitive counsel since they met in 1979.

By the time Rodney finished law school, he had already developed strong relationships with members of the W. Harold Flowers Law Society, the Arkansas affi Iiate of the National Bar Association. He quickly gained the respect of our membership and was soon elected president of the Society. In that role, Rodney succeeded at bringing the growing number of black attorneys together, strengthening our presence within the National Bar Association, and forging a cooperative relationship with the Arkansas Bar Association. Working with other forward-thinking young lawyers in the Society such as Jerry Malone and Michael Booker and visionary leaders of the Arkansas Bar such as Vince Foster, Jim McKenzie, Carolyn Witherspoon, Sandra Cherry, Bill Martin, and Mac Glover, Rodney mounted a quiet yet effective effort to increase the involvement of black lawyers in the Arkansas Bar Association.

I will always treasure the memory of one annual meeting of the Society in Hot Springs, when members of the Society participated in a mock trial demonstration that featured U.S. District Judge George Howard, Jr., as trial judge and several of the leading trial lawyers from the Society and the Arkansas Bar Association. I doubt that the twelve members of the inter-raciaJ jury had ever before seen such a rich blend of legal talent, and I suspect

that the lawyers from both groups had not shared in such a program before. Rodney had also persuaded the Society to schedule its annual meeting in conjunction with that of the Arkansas Medical, Dental and Phamlaceutical Association (the organization of leading Arkansas black health professionals). The mock trial demonstration and the joint meeting with AMDPA in Hot Springs are profound and historic examples of Rodney's leadership and vision that J have been blessed to observe for almost twenty years. Even then, I sensed that the best was yet to come.

Another Perspective...

by Mac Glover In the spring of 1989 I was preparing to succeed Phil Dixon as President of the Arkansas Bar Association at our Annual Meeting in June. Before the Annual Meeting, when Association SecretaryTreasurer Sandra Cherry confided she would not seek re-election, we agreed to encourage Rodney Slater to seek the office. Rodney, whom I had then not met, was, among other things, Vice President For Governmental Relations at Arkansas State University, a Commissioner on the Arkansas Highway Commission, and President of the Harold Flowers Law Society.

I immediately sought a meeting with Rodney to discuss "bar politics." Luckily, he was speaking at Henderson State University later in the week. He agreed to meet, but ever cautious, about my motives or a surreptitious "meeting," he declined my suggestion of a private meeting at my law office, opting instead to meet me publicly at a local restaurant here in Malvern on his return to Little Rock from Arkadelphia.

At our initial meeting I observed in Rodney those attributes he had shown Wendell during their law school days twelve years earlier - a thoroughly engaging person and clearly "a man on a mission." With his courteous demeanor and a steady gaze, he stayed focused. Rodney left no doubt his primary interest as a lawyer at that time was to address those areas of concern to the Harold Flowers Law Society. It was easy to commit to

his causes, and I did. Obviously by the end of our meeting, I knew this was a man of integrity. From this circumspect beginning, Rodney and I quickly knew, and understood, each could and would trust and ern brace the other.

Rodney was elected SecretaryTreasurer of the Association in June 1989 handling a budget of over $500,000 for 3800 members. He served us with distinction. Typically, using the raw data given him, Rodney could explain collated financial infonnation, blend the debates from previous meetings into meaningful and useful information, and with his polished delivery, entertain his audience of peers in the process of reporting our finances and actions.

In 1993, he resigned all his Arkansas responsibilities to accept President Clinton's appointment as Federal Highway Administrator and head an agency with a $20 billion budget and 3,500 employees overseeing more than 840,000 miles of roads and bridges. Four years later, in recognition of his demonstrated national leadership, the Presidenl nominated and the U.S. Senate, on February 6, J 997, by a 98-0 vote, confirmed Rodney as Secretary of Transportation. His department's current budget is $38 billion with 100,000 employees encompassing all aspects of the nation's transportation systems, including highways, railways, airways and waterways.

Rodney demonstrates with his daily life that it is possible to be involved in politics and still retain intellectual honesty and moral and ethical behavior. I have been proud to see Rodney make his wife Cassandra and their three-year-old daughter Bridgette an important part of his private and public swearing in ceremomes.

In my opinion, Rodney personifies Arkansas lawyers at our best. .:.

Wendell Griffen is a judge on the Arkansas Court of Appeals.

Mac Glover is an attorney in Malvern and a past president of the Arkansas Bar Association.

~~

Tbe .lrkansas I.3\\yrr

Spring

1m

ETHICS CORNER This article is reprinted with pennission of the author, Joy McLean. It appeared in the Washington State Bar News, Vol. 51 No.1, January 1997.

This article suggests some practical ways to avoid problems wilhfees, and focuses on the formation of rhe altorneyclient relationship.

DETERMINE THE EXTENT OF YOUR CLIENT'S EXPERIENCE WITH LAWYERS

If the client has never been to a lawyer, discuss how lawyers, as business people. operate. Even if the client has never used

legal services before, she or he may have incorrect expectations based on television ads, the experience of a family member, or movies. If the client has previously been 10 a lawyer, you need to understand what that experience was like for the client so that you can either duplicate it or avoid it. Also, if appropriate, differentiate for the client the type of service you may be rendering from the previous experience. For example, if the client's prior lawyer handled a personal injury case, and you are handling a boundary dispute, explain the differences in fees and projected course of the case.

TALK ABOUT FEES WITH CUENTS

Talk to your cI ient about your fees and costs. Do not leave this important aspect of the attorney-client relationship exclusively 10 staff. Clients are ready to hear about fees, and they want to hear about it in person from you, not by letter or from your assistant. Remember, however, that clients often feel uncomfortable in coming 10 a lawyer, and some may find lawyers intimidating and may expect to find you arrogant and lacking empathy.

Disappoint them in these expectations!

Take the lead in talking to your client about fees and putting them at ease. Do not be shy about discussing fees wilh clients. Your discomfort with the subject will be sensed by Ihe clienl who, in tum, will hesitate to raise questions or concerns about fees with you. Most people value what Ihey have to pay for, and they expect to pay for good legal services.

Generally, if clients seek you oul in the fi.rst place, they will not be discouraged

by Ihe reality that you must earn a living.

If that troubles them, you want to know this before you agree to represent them -

t6 Th' ,Irkm'j L",)u

Spring 1m

and likely before you end up performing involuntarily free legal services for them.

Try to standardize your fee agreements and information. The more your fees are set up with fOnTIS and checklists, the more clients sense that all this is "institutionalized" and not personal to or directed at them. It also assures that you cover completely with each prospective client the important aspects of your fees and costs.

The pattern of communication should start with your initial consultation. Thus, the consultation should be in-person, uninterrupted, and with an interpreter if the c1iem has difficulty communicating in English (making sure 10 comply with the confidentiality provisions of RPC 1.6).

At the initial consultation, consider telling the client, "If you ever feel I am not doing a good job, I am charging you too much, my staff or I am not treating you well, or you are bothered by something in my representation of you, I would like to talk about thaI. I cannot tell you I will be able 10 resolve the concern 10 your satisfaction, but I want to have the opportunity to try to do so." This lets the client know that he or she can talk to you and that you welcome him or her doing so. It may also save you from having a disciplinary grievance filed against you by a client whose real intent in doing so is merely to get you 10 pay attention 10 his or her concerns.

DON'l' START WORK WITHOUT A SIGNED FEE AGREEMENT

Establish a procedure 10 make sure that your fee agreement is signed before you begin representing the client. Sometimes in defending against a grievance a lawyer relies upon a fee agreement signed only by the lawyer; this is not always helpful since assent is a basic element of contract law.

Consider asking the client to sign a fee agreement at the initial consultation, even if the client is uncertain whether to start the representation, and perhaps insert a notice above the client's signature line which states the fee agreement is not effective until the client pays the entire advance fee deposit stated in the agreement. If the client is unwilling to sign at that time, or the case involves something other than an advance fee deposit, give the client a copy of the agreement and tell

the client that you will not start representing the client until the copy is signed and returned. This requires you and your staff to diligently insisl that the agreement be returned before you start work.

These procedures are much more effective if: 1. you ask your prospective client to read the fee agreement at the initial consultation; 2. you leave the room to allow him or her to do so without pressure; and 3. you then personally explain the agreement to the client. The prospective client is more likely to trust you if you willingly lalk up fronl about fees and the less attractive aspects of the fee agreement, and if you frankly discuss the benefits and detriments with the client. If you doubt the client's literacy, read and explain the agreement to the client, and make a note of the reading and explanation on the agreement and have the client initial it.

DON'T FORGET TO ADDRESS COSTS

Costs are as important to address in a fee agreement as the basis or rate of the fee. Explaining the difference between fees and costs helps the client understand the lawyer's meaning and use of the tenn "costs" in subsequent bills. A list of typical costs (for example, medical reports, court filing fees, service of process fees, newspaper publication costs, etc.) also helps the client understand the meaning of "costs." A recitation of RPC 1.8(e)'s requirement that the client remains ultimately liable for any advanced costs is recommended. Since whether payments or advances on the bill should be applied to costs or fees is a frequent source of disciplinary inquiry, clarifying this issue in the fee agreement is advisable.

REMEMllER THAT YOUR FEE AGREEMENT WILL BE CONSTRUED AGAINST You

Because fee agreements will generally be construed against you (the author), clauses giving an advantage to you, such as shifting more risk in contingent fee cases to the client, giving you presumptive entitlement to client funds coming into your possession, or providing that a fee is nonrefundable, may be considered unethical without clear evidence of your client's knowing agreement and fairness to your client.â&#x20AC;˘:.

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DR. STEVEN The Arkansas Bar Association held a training session for those volunteering to assist the victims ofthe March tornados. Attorneys, and their stolfi, received special training to help in addressing disaster reliefquestions.

A Special Thank You to the Young Lawyers' Section for the Disaster Legal Assistance project/hotline and to the many attorneys and bar associations participating in the project.

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1996-97

SUSTAINING MEMBERS OF THE ARKANSAS BAR ASSOCIATION

The financial support of our Sustaining Members is important to providing quality professional programs to Association members. We encourage all attorneys to become Sustaining Members by mailing a check for $100 to the Arkansas Bar Association, 400 West Markham, Little Rock, AR 72201 Hubert W. Alexander H. William Allen Philip S. Anderson R. Keith Arman Kenneth B. Bairn Charles W. Baker Marcia Barnes

Anthony Bartels RT. Beard, III Paul B. Benham, 1lI G. Jay Bequette, Jr. Keith I. Billingsley Daniel e. Blaney Ted Boswell William H. Bowen Charles P. Boyd, Jr. Ronald L. Boyer Silas H. Brewer, Jr. Red E. Briner Edward W. Brockman, Jr. John A. Buckley, Jr. Richard K. Burke Richard e. Butler, Sr. Robert D. Cabe John e. Calhoun, Jr. Robert M. Cearley, Jr. John R. Clayton Robert e. Compton Barry E. Coplin Ben Core ate Coulter Steve R. Crane Hugh E. Crisp Willis Cronkhite, !II James D. Cypert John A. Davis, ITl J.e. Deacon Sherry D. DeJanes Judith DeSimone Jack W. Dickerson H. Tyndall Dickinson Philip E. Dixon Darrell D. Dover Winslow Drummond Warren E. Dupwe Davis Duty B. Michael Easley John D. Eldridge Don R. Elliott, Jr. George D. Ellis John R. Elrod II

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Stephen Engstrom John e. Everett Mike Everett Oscar Fendler John A. Fogleman Robert M. Ford Larry Froelich Katherine e. Gay Sam E. Gibson John P. Gill W. Dent Gitchel David M. Glover Albert Graves, Jr. John e. Gregg Steven D. Gunderson David K. Gunti Michael E. Hale David M. Hargis David K. Harp Richard Hatfield William D. Haught Brad L. Hendricks Curtis E. Hogue William R. Holland Cyril Hollingsworth Don Hollingsworth Cliff H. Hoofman Ronald A. Hope Randolph B. Hopkins Robert E. Hornberger D. Michael Huckabay Ann B. Hudson Clint Huey Alan R. Humphries Eugene Hunt Sherry L. Jenkins Alston Jennings Louis B. Jones, Jr. Robert L. Jones, III W. Wilson Jones Philip E. Kaplan Eugene Kelley William H. Kennedy, Lll Judson e. Kidd Warren O. Kimbrough Milam Mike Kinard Peter G. Kumpe David N. Laser Sam Laser John T. Lavey Ike Allen Laws, Jr.

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Donald e. Pullen Janet L. Pulliam John I. Purtle John T. Purtle Louis L. Ramsay, Jr. Stanley D. Rauls J. Thomas Ray Charles B. Roscopf Charles D. Roscopf John L. Rush Donald S. Ryan Don M. Schnipper John R. Scott Frank B. Sewall Dennis L. Shackleford James B. Sharp Stephen M. Sharum Robert Shults Ted e. Skokos J. Timothy Smith Ray S. Smith, Jr. Robert D. Smith, III David Solomon James D. Sprott Thomas S. Stone John F. Stroud, Jr. William H. Sutton Denver L. Thornton Daniel B. Thrailkill Robert D. Trammell Fred S. Ursery James R. VanDover Stevan E. Vowell w.J. Walker Bill H. Walmsley Bernard Whetstone Bud B. Whetstone John W. Whitehead W. Jack Williams, Jr. J. Gaston Williamson Michael K. Wilson Russell B. Winburn Carolyn B. Witherspoon Henry Woods Edward L. Wright, Jr. Robert R. Wright, III Damon Young Robert E. YOWlg

8th Circuit Opinions The following case summaries are provided

by The Rose Law Firm, A Professional Association. Sillee 1820 The Rose Law Firm has a tradition ofservice 10 its diems alld the bar alld now is pleased to provide ,hese Eighth Circuit Case Summaries to the

Arkansas Bar Association alld irs members.

These Ofe summaries. "awerer. and readers should refer to lhe text of the underlying

opinion for a complete explanation of each decision.

LABOR LAW Strike Misconduct. An employee's miscon路 duci during an economic strike may be

grounds for discharge if the conduct reasonably tends 10 coerce or intimidale other employees in the exercise of their protected rights. This case arose out of the discharge of

an economic striker. After effons to reach a collective bargaining agreement failed, the union called an economic strike against the employer. Draper chose to join the strike; Yarborough crossed the picket line and worked throughout the course of the strike.

On the tenlh day of Ihe mike, Draper carried a pickel sign alone of the plant's gates which read, "Who Is Rhonda Sucking Today?"

There was no dispute that the sign was directed at Yarborough. AI the conclusion of Ihe strike. the company offered reinstatemem to all the strikers excepl Draper. She was dis, charged for "misconduct" arising out of her carrying the picket sign. Upon the union's complaint, the LRB found thai the employer violated the ational Labor Relations Act in discharging Druper. The LRB ordered rein, statement.

The Eighlh Circuit panel denied enforce, ment of the LRB's order. The panel noted Draper's statutory right to participate in the economic strike and Yarborough's similar right to cross the picket line and work.

However. the panel stated, not every act in support of or opposition to unionization by an employee is protected by Ihe law. Ciling NLRB precedenl, Ihe panel noted Ihe lest is "whether the misconduct is such that, under the circumstances existing, it [the misconduct] may reasonably lend to coerce or intimidate employees in the exercise of rights protected under the Ac!." This is an objective standard.

Obscenity, especially where designed to "degrade and humiliate" may have no protection whatever under the NLRA. Some obscenities "hurled in the rough and wmble of l~

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an economic strike" may be protected speech.

The panel distinguished "a plelhora" of cases in which the use of vulgar, vicious and insulting language during picket line face-offs was validated. The language at issue in the cited cases could be construed as expressions of opinion verbally directed to others in a loose and figurative way. Here, the statements were more coercive and embarrassing because they were published on a sign that was imended to be seen by everyone at the exit gate and because it was directed to one person. The result may have been different if the offensive words had been pan of a package of verbal barbs thrown out during a picket line exchange "or of a sign,bame message dealing wilh Ihe morals and character of cross,overs generally." The panel concluded Ihat, as a maller of law, Draper's misconduct coerced or intimidated Yarborough in the exercise of her protected righls. The NLRB abused its discre, tion in concluding otherwise. NMC Finishing II. National Labor Relations Board, Nos. 952S76/2806. Filed December 2, 1996.

Opinion by Beam, joined by Magill and Hansen.

BANKRUPTCY Chapler 12. An undersecured lienholder's lien can be "stripped" or limited to the value of its collateral under Chapter 12 of Ihe Bankruptcy Code. The Hannons purchased property under a contract for deed. The contract for deed was deemed a first mortgage. The sec~ ond mongage was held by the Fann Service Agency C路FSA'"). All panies agreed Ihat the firsl lien debl was SI13,800.00. The debt to the FSA was approximately S42S.000.00. The parties stipulated that the land was worth SI6S,OOO.00. Therefore, because of the FSA's second priority position the approximate amounl of the FSA's secured claim up to Ihe value of Ihe collaleral was SSI ,200.00.

In olher words, if Ihe propeny were sold for ils slipulaled value, SI13,800.00 would first be paid to the first lienhoider/contraci vendor, and lhere would only be SSI ,200.00 left remaining 10 pay the second lienholder/FSA. Hannon agreed 10 pay FSA's secured claim as restructured by the plan over a tenn of thirty (30) years.

FSA accepted the plan. Later, Hannon sold the propeny for S730,000.00. FSA's secured claim was paid off from the sales proceeds.

Sales proceeds sufficient to satisfy the resl of the FSA's claim, or its previously unsecured

portion (over S300,OOO.(0), were escrowed pending a declaratory judgmenl aClion filed by the HamlOns to quiet title to the escrowed sales proceeds. The district court granted the HamlOns' quiet title action and did not allow the FSA's lien to "pass through" the bankrupl' cy and attach 10 Ihe proceeds. The FSA appealed.

First, the Eighth Circuit panel noted that Bankruptcy Code seclion S06(a) bifurcates claims of secured creditors into secured and unsecured portions. The secured portion represents the value of the collateral, and the unsecured portion represents the remainder.

Under Chapter 12 of the Bankruplcy Code for fann bankruptcies, when a debtor completes ils payments under Ihe plan, a discharge of all debts provided for by Ihe plan is granled.

Under general bankruptcy law, however, a dis~ charge does not by itself invalidate a creditor's in rem right of foreclosure or right to enforce its lien. Code section 1227(c) provides, how, ever, that except as otherwise provided in the plan, upon confimlation, properly vests in the debtor free and clear of any claim or interest.

The question became whether the plan can provide for invalidating a lien as to the remaining unsecured claim.

The panel cited Ihe Supreme Coun case of Dell'slIlIp \'. Timm, S02 U.S. 410 (1992), where Ihe Coun said thai Ihe phrase "allowed secured claim" in Code section S06(d) does not denote a claim that is fully secured but rdther a claim that is secured and fully allowed, even if part of the claim may be unsecured. Therefore. the panel noted that although Code seclion S06(d) does nOI pro, vide a method for undercutting lien rights as to an unsecured claim. this section does not prohibit such a result.

The panel noted that the weight of authority under Chapter II is that lien stripping is per, missible. Similarly, under Chapter 13, lien stripping is pennissible excepl for a claim secured only by a security interest in real property that is the deblor's principal resi, dence. II U.S.c. Section I322(b)(2).

Bankruplcy Code seclion 122S(a)(5)(B) provides that an allowed secured claimant must retain its lien rights up to the value of its claim. Here, the panel deemed Ihe tcml "allowed secured claim" 10 have a different meaning Ihan under Code section S06(d).

Otherwise, the panel found the result would be unworkable and unfair. If the lien rights under Chapter 12 were allowed to remain in place

8th Ci uit Opinions for the whole claim, the debtor would have to distribute to that creditor a full recovery, even if the collateral was "worthless," The panel noted the legislative history of Chapter 12 stressed its goal was to give family farolers a "fighting chance to reorganize."

The panel stated allowing lienholders to retain liens in excess of the value of fannland would provide an impossible silUation for reorganizmg. oting that Code section 1222(b)(2) permits the plan to modify the rights of secured claimants, Ihe panel found no problem in stripping the lien down to the value of the

secured claim.

The panel was nOI unmindful of the case law that allows liens to pass through bankruptcy unaffected. The panel noted that where no proof of claim is filed relatjng to the lien in a bankruptcy, the lien will not be affected, if the bankruptcy coun never considers the lien.

The panel said that it would save for a later day the issue about which specific liens may ride through a bankruptcy, noting that a secured creditor who files a proof of claim and participates is nol in the same position as "one who remains on the sidelines:' The panel noted it is important for a debtor to address secured claims in a bankruptcy and be specific as to plan treatment in order to specify what lien rights the allowed secured claimant will be retaining under Code section 1225(a)(5)(B)(i). The district coun was affirmed. Harmon. et al. v. United States, Acting through the Farmers Home Administralion, el 01., Nos. 95-3420/3520 S.D., filed December 2, 1996. Opinion by Bowman, joined by Fagg and Hansen.

ERISA Interference With Protected Rights.

Employers offer of extended benefits conditioned upon release of claims does nor constitute interference with protected rights under ERISA Section 510. Ln 1993 Vickers, Lnc. downsized, resulting in a reduction of its work force. William Jefferson, was terminated as pan of this reduction. Jefferson panicipated in the Vickers 401(k) plan which required five years of service in order to vest in employer conrributions. His service fell just shon of the required five years for vesting. Vickers offered to extend Jefferson's severance benefits unril after the vesting date, which would enable him 10 become fully vested. In exchange for this accommodation, however, Vickers required Jefferson's release of any and

all claims against the company.

Jefferson refused to sign the release and filed suit alleging interference with rights prOiected

by Section 510 of ERISA. The district coun found that Vickers had not intentionally interfered with Jefferson's attainment of benefits and entered judgment in favor of Vickers.

Jefferson appealed, arguing that Vickers' proposed settlement requiring him to release claims in exchange for a continuation of benefits violated ERISA Section 510.

The Eighth Circuit affinned. applying the rule of Brandis v. Kaiser Aillminum & Chemical Corp., 47 F.3d 947 (8th Cir. 1995), which held that ERISA Section 510 requires evidence of specific intent to interfere with protected rights in order to overcome an employer's legitimate, nondiscriminatory reasons for its actions. The Eighth Circuit found that Vickers had aniculated a legitimate, nondiscriminatory reason for Jefferson's discharge in thaI Vickers was undergoing a reduction in work force. Furthenllore, Ihe Eighth Circuit found that Jefferson had failed to adduce any evidence of specific intent on the pan of Vickers to interfere with his rights.

First, the requested release alone did nor establish the intent to violate ERISA. Second, the fact that extensions were granted to others without releases was irrelevant to the Court: [T]he plan must be administered according to its terms, [andJ plaintiff cannot complain because he is held to those terms; this is true even if the rules were bent for other individuals." Finally, evidence that Vickers had refused to pay Jefferson other benefits to which he was emitled was not compelling. As the Court stated: "Were this evidence alone enough to state a claim under Section 510, every error in determining entitlement 10 benefits would be actionable under Section 510."

Jefferson v. Vickers. IIIC., Case 0.95-4205, decided December 17, 1996. Opinion by Beam, joined by Fagg and Murphy.

INDIVIDUALS WITH DISABILITIES ED CATION ACT (IDEA) Plaintiff, a 14-year-old student with disabilities, who after an administrative hearing, required special tutoring. The school district furnished almost all of the tutoring and was willing 10 furnish Ihe rest; however, the parents of the child declined. Plaintiff sought $50,000 in damages from the school district alleging that plaintiff had "suffered education路 ally from defendant's actions." The Eighth

Circuit affimlcd the trial court's decision thaI IDEA did not allow an award of general damages for emotional injury or injury 10 a dignitary interesl.

Plaintiff also complained under the Americans with Disabilities Act (ADA) of the school district's failure 10 give the plaintiff her own personal key to an elevator. The school district claimed that it was in the process of establishing criteria for safe and independent access to and operation of Ihe elevator. The elevator was without a top or enclosed sides.

Eventually, the plaintiff was given a key. The Eighth Circuit agreed with the district coun that recovery was barred because there must be a showing of "either bad faith or gross misjudgment." Hoekstra v.lndependent School Dislricl No. 283, 0.96-1785, filed December 23. 1996.

FEDERAL TORT CLAIMS ACT (FTCA) Plaintiff sought damages under the FfCA for a sexual assault by a Bureall of Indian Affairs officer. The officer was driving a white government vehicle with a police light bar on top when he stopped to pick up the plaintiff who was walking along the side of the road after having driven her car into a snowbank in South Dakota. The officer was not on official dUly or on an Indian reservation. He was returning from Arizona from a training session. and was wearing c10lhing that the plaintiff reasonably could have mistaken for a police unifoml. The district court found the officer was not acting within the scope of his employment and denied recovery.

The district court was reversed by the Eighth Circuit which found that the officer's assault was foreseeable. ''[W]hile it is unfortunate and uncommon, sexual misconduct by an officer is in some circumstances reasonably foreseeable. It is no less foreseeable that such an abuse of authority could occur while the officer is not technically all duty, but rather possesses the apparent authority sufficient to cause a person to rely on or fear that authorily and succumb to sexual advances. Cases holding employers liable for sexual assaults or excessive use of force by police officers reason that such conduct is foreseeable because of the unique position of rrust held by such officers."

PrimealO: v. United States ofAmerica, No. 961470, filed Dccember 26, 1996.

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8th Circuit Opinions CONSTITUTIONAL LAW Takings Clause. The enactmem of an ordinance requiring me removal of all billboards

from residential neighborhoods does not consritute a deprivation of property without just compensation when the landowner's "bundle

of rights" previously had not included the right to display the billboards. The City of Burlington, Iowa (Ihe "City"). adopted a zoning ordinance in 1949 requiring a landowner obtain pennission 10 erect any structure other than a residence, school, church or similar building in areas zoned residential. In 1959, the City adopted a zoning ordinance requiring all nonconfonning uses to obtain a certificate within one year. The certificates (0

provided that any change in ownership

INC ALTERNATIVE DISPUTE REsOLUTION

requires recertification.

The plaintiff owned numerous billboards in

MEDIATION

the City, all but one of which was located in residenlial lones.

ARBITRATION

The plaintiff presented no evidence that its billboards were erected before 1949, but the

MINI-TRIALS

billboards. owned al that time by anolher company. were in place in 1959. The plaimiff"s predecessor obtained (he necessary cenificales of nonconforming use for the billboards in 1960. Although the plaintiff knew when it purchased the billboards in 1986 that the billboards were nonconforming uses and were subject 10 recertification, no recertification was obtained.

In 1988. the City enacted a new ordinance prohibiting billboards in any residential neighborhood. The ordinance provided a five-year grace period, or amortization period, and all nonconforming billboards were to be removed five years after the ordinance's enactment without any payment 10 the billboard owners.

The plaintiff and olher CilY residents were notified of the proposed ordinance before its enactment and offered an opportunity to be heard.

After the completion of the five-year period, the City sent the plaintiff a letter demanding the removal of the billboards. The plaintiff then filed an action alleging that the City had deprived it of property without just compensation in violation of the Fifth and Fourteenth Amendments to the United States Constitution. The plaintiff also asserted viola-

tions of the Iowa Code. FOllowing a trial, the district court found no constitutional or statutory violations.

II Hr ,lrliIIillJ*Jrr S,ril! 191i

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8th Circuit Opinions The Eighth Circuit affirmed. First, the panel rejected the plainliff's argument Ihat the City had deprived it of all economically beneficial use of its land and thai the ordinance constitutes a per se taking. The panel explained that "even if a regulation denies a landowner all economically productive use of the land. there is no compensable laking unless the landowner's 'bundle of rights' previously included the righl 10 engage in the restricted aClivity." Applying Ihis slandard, Ihe panel observed that the plaintiff knowingly had purchased propeny thai was subject to a nonconforming use for an extended period of time. The panel concluded Ihat Ihe right to erect the billboards did nOI inure in the plaintiff's litle, and, Ihus, the City need not compensale Ihe plainliff under a per-se-Iaking Iheory.

The panel also declined to adopt Ihe plaintiiT's second argument-Ihal the plaintiff was entitled to compensation under an ordinary taking Iheory, which depends on the circumstances of the case. The panel evaluated the relevant faclors-the economi impact of the regulalion on the plaintiff, the extent 10 which the regulation has interfered with distinct, investment-backed expectations, and the character of the government regulation-and concluded that the ordinance does not amount 10 a laking of conslilutional magnitude.

According to the panel, the plaintiff had the benefit of !.he five-year amonization period during which it enjoyed monopoly Slatus, boughI the billboards al a bargain price and has made a considerable profit from them. In addition. the ordinance allows the plaintiff 10 erect billboards in commercial districlS, which include a subslantial ponion of the City. The panel funher nOled that these same findings prevent the plaintiff from recovering com pen· sat ion under the Iowa Code. Outdoor Graphics, Inc. \I. City of Burlington, Iowa, o.

95-2913, S.D. Iowa, filed Dec. 27,1996.

Opinion by Beam, joined by McMillian and Hansen.

EMPLOYMENT DISCRIMINATION Americans With Disabililies Act. An employer may hold disabled employees to the same standard of law-abiding conduci as all OIher employees. The plainliff was fired from her job as a legal slenographer in the counly allomey's office after she pleaded guilly 10 a shoplifting charge. Four years later, she reapplied for her old job, but when a po ilion

became available, she was not considered because of her criminal record. The plainliff brought a suil under the Americans with Disabilities Act ("ADA''), alleging Ihatthe coumy's refusal to rehire her was discriminatory. The district coun granted summary judgment in favor of the defendanl county.

The Eighth Circuit affirmed, holding that the ADA does not prohibit Ihe counly allorney from using the plaintiff's criminal record to reject her application because her shoplifling was caused by a mental illness. According to the panel, Ihe ADA does nol require employers to overlook infractions of the law.

The panel agreed with other couns of appeal that an employer may hold disabled employees to the same standard of law-abiding conduci as all other employees. In addition, Ihe panel stated thai the record shows that the county allomey's refusal to rehire the plaintiff was based on an office policy against employing individuals with criminal records. The plaintiff failed to present any evidence tending to show the reason given by the county allOfney was a pretext for disability discrimination.

Harris v. Polk County, o. 96-1476, S.D. Iowa. filed Dec. 31,1996. Opinion by Fagg, joined by Lay and Hansen.

BA KRUPTCY Over-Secured Creditor. OIwithstanding contrary governing state law, an oversecured creditor can obtain 3uorneys' fees for protecting ils right if the documenls allow fees. Firsl Western Bank & Trust loaned money to Schriock Construction. Under the governing documents, First Western was to be reimbursed for expenses incurred in any litigation or bankruptcy proceeding. The documents were governed by onll Dakola law.

Schriock filed for bankruplcy. In the bankruplcy proceeding, First Western's claim was discharged fully, based on the liquidalion of its collateral. In facl, the value of the collaleral exceeded the claim such that First Western was deemed an over-secured creditor under II U.S.c. Seclion 506(b). Later, First Western sought reimbursement of its attorneys' fees.

The bankruptcy trustee objected because allorneys" fees are nOI allowed under onh Dakola law, the governing law. The bankruptcy coun agreed with Ihe trustee and denied the fees, and this decision was upheld by Ihe district court.

The Eighlh Circuit panel reviewed this question as an issue of federal law under II

U.S.c. Seclion 506(b) which allows Ihe recovery of fees, costs and charges, if reasonable, and if provided for in the agreement The panel allowed the attorneys' fee claim, noting

a prior draft version of this section required the fees 10 be collectible under "applicable law," but this requirement had been deleted.

The panel also nOled that a majority of couns have similarly interpreled Section 506(b).

The panel found Section 506(b) clearly intended Ihat such fees be reimbursable nOlwilhslanding whelher they would be collectible under stale law. The panel noles that had the securily documents nOl allowed for attorneys' fees, or other fees in the instance of bankruplcy, then the resull would have been different Therefore, the decision of the district court was reversed. First Wesrern Balik & Tmsl v. Drewes. No. 95-4005 (N.D.). Filed January 8,1997. Opinion by Beam,joined

by R. Arnold and McMillian.

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IMPROVING THE LEGAL SYSTEM The Arkansas Bar Association has historically worked to secure adequate funding of the court system, to revise outdated laws, and to provide needed legal information to the public. Association members do this through the legislative program, Sections/Committees, Mock Trial Program, Juveniles for Justice, Lawyer Referral System, Young Lawyers Section's projects, and special studies.

Royalties are paid to the Arkansas Bar Association for some of the above benefits. For more information about member benefits or programs call Barbara Tarkington (501) 375·4606 or 1·800·609·5668.

Continlled from Page 2/ "The Case Agoinst..." been, considered in deriving what ratc is actually comparable.

The data itself, when fairly viewed, demonstrates a large and disproportionate

increase in lawyer saturation rates. An objective study might also consider magnification of marginal changes through increased efficiencies of existing lawyers using computer advancements and para-

legals.

TilE OTIIER SUPPOSED MVTIlS. It was discounted as a myth in the 1985 study

that a legal education is expensive, but the combined law school budgets are around $ 8,000,000.00, up to $10,000,000.00, annually, enough to catch even Don Tyson's attention.

Frankly, the proposal made here would hopefully not result in much "savings,"

cenainly not fifty percent (50%).

Perhaps only a twenty percent (20%) savings would ultimately result from the

economies of scale contemplatedjust one or two million dollars annually.

Another supposed myth is that "one super· law facility is more economical Ihan (Wo smaller ones." The thrust of this argument was that building Cosis would consume the savings. but that was before the expanded facility in Little Rock, and this issue is shan term in any respect.

The issue more directly phrased is whelher one great school is bener than two good schools. Emphasis was placed on other comparable states with two law schools, but studiously ignored was the public-private distinction. The fact is that two public law schools in a state comparable to Arkansas is extremely rare. The argument was raised lhat lhe law school is integral to the college, that the University of Arkansas would be harmed were the law library moved - so give it up, leave it there, and sllldy the circumstance carefully so that, for what is taken, more is given to Fayetteville, such as exclusive doctoral programs, enhancement of the great architectural schooL or something truly integral to the college. A law school member for the student coun is not a good enough reason to dilute resources available for the development of a nationally recognized law schooL Anecdotal, perhaps, but every practicing lawyer in lhis state knows there are

already too many lawyers. Even in the 1985 study, placement rates of sixty-five percent (65%) were noted with pride, but lhat is abysmal. lncreasing bar examination failure rates is not the answer (something like estoppel ill pais), nor is attributing the problem to law school graduates from other states (something about federalism). One lawyer. liked and respected as a lawyer by lhis writer, runs an advertisement" 'The Hammer' _ _:' The subjects are related. Mass product ion of lawyers leads to predictable ends, not beneficial to society. past the point of making legal services generally available. [The lawyer noted is no worse, just more direct, than the whispered·slander campaigns used by some larger fmns to solicit their own business.]

Fonhis writer. and reverting to the first person, I have no conscious selfinterest in this subject, I have had a full plate for what is approaching twenty-five years, although sometimes it has been too full, and I was born for a profession anchored in connicl. Everyone taking a position on this issue might also take a personaJ inventory. I.s legal education in this st'3te the motivation, or is it the preservation of a personal interest? .:.

DGl'id Hargis is a solo practitioner in Liu/e Rock. AR.

Don't . ····~s~····· . be

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Young Lawyers Section Report

First Impressions

by DP Marshall, ir.

It is time for a commercial, some con-

gratulations, and lots of thank yous.

First, here is the commercial. Calling

all young lawyers: come to the Annual Meeting in Hot Springs. June 11-14. Do you still need to get some CLE hours?

Then come to the Annual Meeting for the best selection of CLE at any time during the year at anyone place. Do you want

to get involved with the Young Lawyers Section, and help elect the 1997-98 Executive Council and other Section offi-

state-wide plan for the provision of pro-

those who have "Been there. done that"

bono legal services in the event of state or

and were willing to share their experi-

federally declared natural disasters.

ences with law students deserve commen-

Because of Jackie, our Section received a

dation. Thank you to Stuart Miller, Kala Rogers. and Lester Stuckmeyer for coordinating the mentor program and linking more than 100 law students with a young

$2,000.00 grant from the American Bar Association to publish and distribute the plan, and train young lawyers about how they can become part of the plan.

Congratulations to Gwyn Hodge.

David Hodges, and Dennis Shackleford for pulling together the most successful

lawyer mentor.

Thank you to Scon Morgan, YLS chair elect, and his Law Day commiuee. They gave us lots of good events across the state to commemorate this irnponant date.

and make it a point to atlend the Young

Bridging the Gap seminar ever. More than 170 new lawyers participated.

Thank you to all of the presenters - a

Lawyers Section annual meeting around

combination of young lawyers and expe-

fantastic relreat for the YLS Executive

noon on Thursday. Do you want to have

rienced lawyers. Thank you for caring

some fellowship with some of the best young lawyers from all over the state?

Then come to the Annual Meeting. I hope to see you there.

about young lawyers. and demonstrating

Council.

A special thanks to Kala Rogers, who has done a superb job as YLS secretary, and to all the members of the YLS execu-

The Young Lawyers Section sends

fine Spring Trial Practice Seminar about

to service has made my job easy.

thanks and congratulations to the follow-

handling expert witnesses under the

ing individuals, and to everyone who has given their time and talents to Section

Daubert standard. A special thanks goes to Rosal ind Mouser, fonner chair of the

Thank you Judith Gray, H.T. Moore, Bill Martin. Don Hollingsworth, Sara Landis, Charlone Greer, and all of the

projecls this year.

Section, for coming out of retirement to

members of the Arkansas Bar Association

assist Ed in planning the seminar.

staff. Your support of Young Lawyers has enabled the Section to do good work.

cers? Then come to the Annual Meeting,

Kudos to JOllann Roosevelt and Mike

Shannon for leading the effort to update The Statute of Limitations Handbook.

And thank you to each of the 30 or so young lawyers who helped make that project a success.

your concern by sharing your insights

with the participants.

Kudos to Ed Slaughter for organizing a

Thank you to all of the young lawyers who helped write Handling Appeals in Arkansas, our new appellate practice

in addition to her work on The Statute of

handbook. These individuals - Allison Graves, Chris Lawson, Maggie ewton.

Jess Askew, Lynn Lile Wright. and Craig Lambert - joined hands with the appellate

Limitations Handbook, chaired the

practice committee of the Arkansas Bar

American Cancer Society's 3-PoinL

Association and produced a new tool for appellate advocates in Arkansas.

More kudos to Jonann Roosevelt, who,

Anack project. Carrying on in the tradition of Steve Quanlebaum, Jonann sets the right example of public service for every young lawyer.

Thanks to Baxter Sharp and Jackie

Special thanks to Cindy Grace. chair of the YLS Communication committee. for keeping us all in touch with one another.

Her brainchild, YLS in Brief, the new

Johnston for their work on the Disaster

YLS section newsletter, was a great

Relief Planning project. Because of

cess.

Baxter, the Bar Association now has a

SllC-

Kudos to the YLS mentors. All of

Thank you to David Price. He helped start the year off right by organizing a

tive council. The council's commitment

Your Young Lawyers Section has been

busy this year. Thank you, young lawyers. for giving me the opponunity to

work with all these fine people. I look forward to seeing you at the Annual Meeting.â&#x20AC;˘:.

Continued from Page 4 "Fireflies"

Cominuel/ from Page 6 "Deposition Managemellt"

grail or trial practice, RFT is not the only program which penomls the types of func-

created when members who are delinquent in their dues can continue to receive all of our membership benefits for six months before they are dropped from our rolls.

not locked into any particular way of view-

tions mentioned above. There are other programs on the market, some of which

This is why by-law changes will be proposed to the Executive Council ror recommendation to the House of Delegates to better align our fiscal and membership year to allow our staff to

ing your data,

have strengths that RFT lacks, Regardless

For those of you like me who are wary of relying on a lap lOp computer at trial (computers seem to know exactly when to crash to innict the most pain on their users). the reports RFf generates are meant to be printed out and placed in a notebook.

of the particular program, using a Iranscript management program can make trial preparation much easier, especially when it is

RFT will automatically generate indexes and tabs. The reports are clear and read·

better do its job. Both Jack and Bob have

able, A lap tOP computer can be used as a

been highly involved in these considerations, as it will take a two-year cooperative effort to implement the changes, if approved.

It·s been a pleasure to have served the "nickering" year as bar President. It's been fun to walch the association plan for its long-range future. to see the transition in our staff leadership, to walch committees complete difficult studies, to watch the intelligent and deliberative work of our executive council and house of delegates, to work toward improvement in bar-bench relations, to see us survive a legislative session and obtain the passage of the majority of our bar package. to see new ideas like our "Juveniles for Justice" spring forth and to know that leaders like

backup for full lext searches at Irial.

RFf has significant limitations which make it unsuitable for all practitioners. It is strictly a transcript management tool, and does not pennit documents to be scanned into it as some programs do. The number, name, and summary information regarding

Jack and Bob will be around to see this become a truly statewide program, to see our Young Lawyers accept the challenge of establishing a Disaster Relief Program and to finalize its operation in time for it to be of service to thousands of Arkansans ravaged by stonns and floods, and to have traveled throughout the state to meet with local associations and find out what lawyers who hail from the hinterlands think about your association.

It's also been fun to make lasting friendships with lawyers from our surrounding states and other parts of the country, and to see one of our own, Phil Anderson, nominated as President-Elect of the American Bar Association.

Your bar association is in good hands.

It's in your hands. As it finishes its 99th year, think about what you can do to make its IOOth year, and the next 100 years, even bener. We need your help, even ir you can only be a fireOy and bum brightly for a "nickering presence."·:· MARK YOUR CAli NllARS!

'\"1 \1 \11111'(, Illlll' II-I-l, [l/lC

each exhibit must be entered by the keyboard. While one might wish for an integrated scanning feature, the introduction of scanned material signjticantly increases the amount of memory, hard disk space, and processing power required, nol to mention decreasing reliability. Because RFf uses the fonts already installed in your computer it requires relatively little memory or processing power and is very fast. 2 Document scanning requires huge amounts of memory, hard disk space, and processing power, is usually quite slow, and in the case of

Optical Character Recognition (OCR), can

midnight berore trial and you are rrantically searching through stacks of depositions for that one critical piece of testimony that you know is there. but can't quite put your fmger on.·:·

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Paul, MN 55101-1988, Phone (612) 2241289, 2, The Mac version requires only 2 ME RAM and about 1,5 ME or hard disk space for installation, with each file size ranging

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be very inaccurate. In utilizing computers in trial practice, it is not unusual to reach a point where you are spending more time tweaking the computer program Ihan performing aClual trial preparation. One wag has likened scanning every document in every case into a computer to "gift wrap· ping your garbage." In my practice, if the case is large enough to justify document scanning, I outsource this task to an inde-

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handles CD-ROM inromlation efficiently, RFT also lacks networking capability, a weakness which mayor may not be fatal

depending on one's need to have multiple users on a single case. Obviously, it is not suited for a full scale "litigation team" environment. However, the "lone gunslinger"

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judicial advisory opinions/judicial disciplinary actions JlIllICIAL AOVISORY OI'I:\IO:"S The Arkansas Judicial Ethics Advisory Committee recently issued an advisory opinion to Victor A. Fleming, Lillie Rock Municipal Coun Judge. He requested an opinion concerning financial issues as he was leaving his law firm to assume judicial office.

The opinion states that after selection and prior to assuming the position as a full-time judge, lhe auorney may continue to practice law.

The auorney may be compensated according to a partnership or employment agreement.

The terms of a law partnership agreement may provide for compensation to the attorney regardless of when Ihe work is performed. In the Committee's opinion, a distinction must be drawn between work performed in the firm before the judge departs and work perfonned by members of the finn after departure. The departing attorney may receive compensation for work perfonned by anyone in the finn prior to the depanure. However, no compensation may be paid to the judge for work perfonned after the judge's departure from the finn.

The opinion aJso addresses the question of whether a judge may receive "client attraction funds" from the fonner finn if the judge makes a referral to the finn. The opinion states that once an allomey becomes a judge, he or she should never make a referral to any attorney.

JlInJCIAL DISCII'L1:"ARY ACTlo:"s The Arkansas Judicial Discipline & Disability Commission has annO/weed thaI leuers of admonishmelllS were issued 10 Arkansas COllrl of Appeals Judge Oil)' Neal alld parI-lime Marshall Municipal COllrf Judge Jerry Pauerson!or violatiolls of the Code of Judicial Condllct.

ARKANSAS COURT OF ApPEALS JUDGE OllY NEAL While serving as a circuit judge in the First Judicial District, Judge Neal assumed jurisdiction and presided in a disbarnlent case pending against his fanner client, attomey Jimmie L. Wilson. During the hearing of this matter, Judge eal failed to state that he had been one of the attomeys who had represented attomey \V'~son, and had assisted in Wilson's defense in a federal criminal trial. Judge eal also failed to mention that he also appeared and argued a motion on behalf of Wilson two (2) years later before a federal judge.

In swom testimony before the Judicial

Discipline and Disability Commission, Judge Neal stated he did not remember ever representing Wilson in the federal criminal trial or in the presenting of an oral motion before a federal judge. eal did acknowledge that he and Wilson had been fonner law partners, and that such relationship tenninated on January I, 1989.

The Judicial Discipline and Disability Commission found that Judge Neal's actions in presiding at the Wilson disbarment hearing creal路 ed the appearance of an impropriety. In so doing, his actions failed to promote public confi路 dence in the integrity and impartiality of the judiciary. The Commission also found that his actions also violated the Code of Judicial Conduct, which provide that judges may not preside in any matter or related mailer in which they were involved in their attorney capacity.

MARSHAll

M

'ICIPAL COURT J DGE

JERRY PATIERSON In April 1994, Judge Patterson reviewed an affidavit of Jack Wyatt and then authorized the arrest of a William Tidmore for battery against Wyatt. A few days later in his private attorney

capacity, he began to represent Wyatt in his claim for damages against Tidmore. At the time, anorney Pallerson knew he had acted in his judicial capacity in a related maHer against Tidmore.

Attorney Patterson's representation of Wyan continued through December 1994.

In August 1994, Judge Pallerson presided at a hearing and accepted Tidmore's plea of not guilty to the battery charge. In October, again in his judicial capacity, Judge Patterson signed and directed that a court order be sent to Tidmore.

The order required Tidmore to appear and show cause why he should not be held in contempt for failure to appear in court. before Judge Patterson. on September 28, 1994.

The Judicial Discipline and Disability Commission found thai Judge Patterson's acting as a judge and a private anorney in related mat路 ters, as described above, damaged the public confidence in the judiciary, and was inconsistent with maintaining the high standards of conduct essential in preserving the integrity of the judiciary. His actions also created the appearance of an impropriety and violated provisions of the Code of Judicial Conducl.

lawyer disciplinary actions scheduled. Jones again testified at lhat

affidavit of complaint and his teslimony

hearing that all of his trust account

at the de novo hearing of July 19, 1996

records were stolen in an office burglary.

that he hired an associate in Johnson's

However, in response to further questions

finm to handle a malter for him and his

by the Comminee, Jones admined thaI, in

mother during early June 1995. Johnson

the conduct of Marquis E. Jones in a mal-

facI, lhose records were not stolen and

is the supervising attorney for her law

ter was a violation of Rules 8.I(a) and

that his previous statements to lhe con-

finm. Part of lhe agreement between

8.1 (b) of the Model Rules of Professional

trary were nOl lruthful.

Johnson's associate and Mr. Taylor was

MARQUIS

E.

JONES

LITTLE ROCK, AR (FILED JUNE

14, 1996)

It is the decision of lhe Comminee that

Conduct as amended by lhe Arkansas Supreme Court. He was suspended for

His affidavit of response averred that he

had no defense

10

the allegations.

K.

in connection with a disciplinary matler

KAREN

shall not knowingly make a false slale-

HOT SPRINGS, AR

ment of material facl, and a lawyer in

(!"!LEO JULY

JOHNSON

31,1996)

her associate, Mr. Taylor provided the necessary funds for payment 10 be sent on his behalf. Mr. Taylor's IOtal payments to

Following her hearing, the Committee

these funds were paid in cash except for a

lawful demand for infonnation from dis-

in executive session and by a unanimous

$69.00 check. During November of

ciplinary aUlhority.

vote found that Johnson's conduct in the

1995, Mr. Taylor learned that the check

matter was a violalion of Rules 1.15(a) of

senI by Johnson on his behalf was

arise oul of the testimony Jones offered at

lhe Model Rules of Professional Conducl

returned because of insufficient funds in

a de novo hearing held on May 19, 1995,

as amended by the Arkansas Supreme

lhe account. Additionally, the check,

on lhe complaint of a fonmer client, Mary

Court. She was suspended from the prac-

which was signed by Johnson, was not on

\Vinslon. TIlis testimony contradicted

lice of law for a period of one year for

an IOLTA account but on the account of

prior sworn testimony given by Jones on

lhis conduct.

Legal Ease, L.C. Mr. Taylor's funds were

The facls leading to this complaint

This Rule states, in part, thaI a lawyer

never received by the lending organiza-

on this same maner. Specifically, the

shall hold property of clients or third per-

tion resulting in his loan not being reaf-

Commitlee had directed Jones to provide

sons that is in a lawyer's possession in

finned and ultimately resulting in the loss

trust account records in an effort to final-

connection with a representation separate

of his home. At lhe time of the hearing.

ly resolve the issues raised in the \Vinslon

from lhe lawyer's own property. Funds

Mr. Taylor had nOl had his funds relumed

complaint. Following that and during the

of a client shall be deposited and main-

10 him.

1994 hearing Jones averred lhat his trust

tained in one or more identifiable trust

account records had been stolen in a 1993

accounts in the state where the lawyer's

Taylor's funds were deposiled into her

burglary of his office. The Comminee

office is situated, or elsewhere with the

IOLTA account. As proof thereof

than directed him to obtain these records

consent of the client or lhird person. The

Johnson provided her IOLTA bank state-

from lhe bank. Subsequenlly Jones pro-

lawyer or law finm may nol deposil funds

ment for lhe period of May IS, 1995,

vided some, though not all. of the docu-

belonging

through June 15, 1995. Johnson also pro-

ments requested. Consequenlly, the

any account designated as the trust

vided several olher bank statements.

Committee resorted to its subpoena

account, other than lhe amount necessary

These bank records were not made avail-

power

to cover bank charges, or comply Wilh the

able until the beginning of Johnson's de

failed to provide. Following nOlice of the

minimum balance required for the waiver

novo hearing despite her having been per-

Committee's decision fTom the ballot vote

of bank charges.

sonally served with notice that the

May II, 1994, at an evidentiary hearing

10

obtain the records which Jones

on this complaint, a de novo hearing was I~

her law

Johnson's finm equaled $2,320.89. All of

connect.ion with a disciplinary matter

respond to a

10

finm. Within two days of meeling with

These rules state, in pan, that a lawyer

10

Taylor's loan reaffinnation as soon as M.r.

Taylor provided those funds

one (I) year for lhis conduct.

shall not knowingly fail

that her finn would send payment on Mr.

Tw Irullall.all}rI Sprilf Illi

10

the lawyer or law finm in

Mr. Willie Lee Taylor alleged in his

Johnson teslified that all of Mr.

records were

10

be provided

10

the

lawyer disciplinary actions Executive Director's office ten (10) days

Johnson provided demonstrated that by

KENNETH LAWTON EllWARns, JR.

prior to the hearing. Johnson testified

June 12, 1995, five days after Mr. Taylor

FAYETfEVILLE, ARKANSAS

before the Committee that the records

provided his funds to her law finn, the

were unavailable to her because they

balance in her trust account fell below

were under subpoena and court order in

$2,200. The daily balance remained

COLIrt Committee on Professional

other non-related litigation. Following

below $2,200 until Johnson made a

Conduct, the Supreme Court of Arkansas

that testimony, Johnson was directed by

$25,000 deposit on June 30, 1995. By

accepled the surrender of the license of

the Committee Chair to provide a copy of

July II, 1995, the IOLTA balance ol1ce

Kenneth Lawton Edwards, Jr., of

each subpoena and court order wherein

again fell below $2,200 and has remained

Fayeneville, Arkansas, to practice law in

her bank records were required 10 be

so until July 1996 except for a short span

the State of Arkansas.

turned over to another person or entity.

of time when she deposited funds for

As evidence of having deposited Mr.

another client's divorce settlement. When

Taylor's funds, Johnson directed the

questioned where Mr. Taylor's funds were

NOLEN MICHAEL YARIJROUGH

during this time, Johnson assert.ed that

VAN BUREN, ARKANSAS

Committee's attention

10

her June 8,

On recommendation of the Supreme

1995, deposit. This demonstrated only

she did not know. Further. when asked

$2,000 in cash deposited instead of

why the check

$2,200. Johnson was unable to locate

written on the account of Legal Ease

Conducl carefully considered the com-

where the $69.00 check provided by Mr.

L.C., Johnson reported that it was an

plaint filed against Nolen Michael

Taylor was deposited. The records

accident.

Yarbrough by Amy Marie Rose and his

011

Mr. Taylor's behalf was

The Commillce on Professional

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1m

lawyer disciplinary actions response. He was reprimanded for this con-

Ms. Rose attempted

duct.

about these activities, he told her that he was

in her case. Addilionally, he assened Ihat

busy wilh a $100,000 lawsuit in federal coun

Ms. Rose never indicated any problem with

conduct in this matter was a violation of

so he did not have lime for her $125, 5-

the protracted divorce.

Rules 1.3. 1.4(a) and 8.4(d) of the Model

minute divorce hearing.

It is the decision of the Commiltee that his

Rules of Professional Conducl as amended by the Arkansas Supreme Coun.

These Rules state, in pan, that a lawyer

10

lalk to Yarbrough

Ms. Rose did nOI know what was transpiring

Yarbrough began his response by acknowledging thaI Ms. Rose first contacted his

MR.

office in April about an uncontested divorce.

CARROLLTON, TX

GUY

S. LONG

shall act with reasonable diligence and

According to him. the reason for not filing

promptness in representing a client; a lawyer

the complaint immediately was because Ms.

A lener of caution was issued to Mr. Gu)'

shall keep a client reasonably informed about

Rose could not obtain a definile address for

S. Long for violation of Rules 1.3, 1.4(a) and

the stalus of a malter and promptly comply

her husband. Ultimately. a Warning Order

8.4(d) of the Model Rules of Professional

with reasonable requests for information:

was published. Yarbrough also .ssened thaI

Conducl upon the complaint filed by Linda

and, a lawyer shall not engage in conduct

personal reasons caused the progress of some

Sue Jackson. These Rules state, in pan, thaI

that is prejudicial to the administration of

uncontesled matters

a lawyer shall aCI with reasonable diligence

justice.

his office. He denied that his office was

and promptness in representing a client; a

moved without notice to his clients.

lawyer shall keep a client reasonably

hired Yarbrough during April of 1995 to rep-

Specifically, he pointed oul thaI a recorded

infonned about the status of a matter and

resent her in an uncontested divorce proceed-

message notified callers of the new telephone

promptly comply with rcasonable requesls

ing. For several mOllths after hiring him,

number in Van Buren. It was his assertion

for infomlation; and a lawyer shall not

Ms. Rose did not receive any correspon-

that it was a new policy implemented by the

engage in conduct that is prejudicial to the

dence. During the same time period, she

Southwest Times Record requiring advance

administration of justice.

altempted to contacl Yarbrough with no suc-

payment before publicalion which caused the

cess. Laler. she learned he had moved his

delay in publishing the Warning Order.

1995 to represent her in a divorce action.

office from Fan Smith to Van Buren.

Yarbrough's reason for nOI nOlifying the

She paid his fee of $1 ,085 on June 16, 1995.

Although he was paid in April. Ihe complaint

client of the first scheduled time for her

Ten days later he filed a complaint on her

for divorce was not filed until June 21, 1995.

hearing was because he had a conflict with

behalf and then caused her husband to be

A hearing was initially sel for March 12,

the date. Further. according to him, Ms.

served with the complaint. Following Ihis

1996. Ms. Rose did not know of this dale

Rose was nOlified by his secretary of a possi-

activity, Ms. Jackson received no communi-

unlil she reviewed the file at the Clerk's

ble COnniCI with the April 9th setting. but she

cation from Long. She attempted to call him

office. On one occasion when she contacted

refused

many limes. When she learned he had

his office, his secretary infonned Ms. Rose

ed that his secretary contacted Judge

moved to Texas. she left messages for him al

that her hearing was sel for April 9, 1996.

Kimbrough's office on Ihe day of the hear-

the number there. bUI he returned none of

Ms. Rose was instructed to be at the court-

ing. Addilionally, he assened that his secre-

them

house at 8:55 a.m. She was Ihere and waited

tary went to Judge Kimbrough's counroom

Jackson at Ihe time she filed her affidavit nor

until 10:00 a.m. before she called

to try and locate an anomey to assist Ms.

had Long performed any work for her olher

Yarbrough's office, at which time she was

Rose but was unable

than filing the complaint. Eleven months

As was sel Qui in Ms. Rose's affidavit, she

instructed

request the Judge to granl the

10

10

be slightly delayed in

have il postponed. He also assen-

10

do so. He stated Ihat

Ms. Jackson hired Long during June of

a funds had been relumed to Ms.

he regretted being abrupt with Ms. Rose but

after she hired him, Ms. Jackson was forced

divorce without his presence. Judge

that she had no sympathy for his posilion

to hire another attorney to complete her

Kimbrough refused and then requesled

and explanation that he could not stop a fed-

divorce proceeding for her.

another altorney to assist Ms. Rose. That

eral jury trial just to go to the county court-

attorney had to prepare Ihe Decree and Judge

house and conduct a five minute divorce.

whcn he moved to Texas in the fall of 1995,

Kimbrough provided it

Yarbrough was not aware of any time when

he fully intended to return

10

10

Ms. Rose. When

II n,lrlmalIJMI,r S,ril! 119i

Long's response began by explaining that

10

his private

lawyer disciplinary actions practice in Blytheville to finish pending

deputy prosecuting attomey by filing

the hearing reminded him that Ms.

cases, but he was not able to do so. He

criminal infonnation with the Ashley

Short's certification had not been com-

also infonned the Committee of his on-

County Circuit Clerk. All were signed by

pleted.

going trealment for depression and alco-

Ms. Short as deputy prosecuting allomey.

holism. Over two months after his notice

On May 14, 1996, Ms. Short was lead

Wray denied that he knowingly violated any of the Model Rules of

of suspension was filed with the Arkansas

allomey for the Stale at the trial of Ihe

Professional Conduct. He submitted that

Supreme Court Clerk, Long sent Ms.

case of State ofArkansas v. Floyd Ray

he made a mistake in failing to complete

Jackson notice of the suspension and his

Freeman, Jr. Wray was present during

the required certification of Rule 15, but

inability to continue representing her. At

voir dire and then left Ms. Short to repre-

that the mistake was corrected once it was

this time, Long also sent Ms. Jackson

sent the State of Arkansas in the jury trial.

brought to his attenlion. Further, he

$1,000. According to him, this was all

Ms. Short was qualified as a student

asserted that failure to complete certifica-

done before he knew of Ms. Jackson's

practitioner pursuant to Rule XV on June

tion was not conduct envisioned by Rule

complaint against him.

4, J996.

5.5(b).

For his response, Wray stated that in March 1996, his chief deputy prosecuting MR. JOE DOUGLAS WRAY HAMIlURG,

AR

attorney, and his part-time deputy prose-

MR. NOLAN MICIIAEL YARIlROUGII

cutor resigned leaving vacancies with

VAN BUREN,

AR

upcoming trial and court appearances A letter of caution was issued 10 Joe

Douglas Wray for violation of Rules 5.5(b) and 8.4(d) of the Model Rules of

scheduled. The need for immediate help led to Ms. Short's hiring.

Prior to Ms. Short's employ with his

A reprimand was issued to Nolan

Michael Yarbrough for violation of Rules 1.1 and 5.5(a) of the Model Rules of

Professional Conduct upon the complaint

office, he contacted the Prosecutor

Professional Conduct upon the complaint

filed by David L. Chambers. These Rules

Coordinator's Office and asked questions

of William Mark Bonney. These Rules

stale, in part, that a lawyer shall not assist

whether a law student could represent a

state. in part, a lawyer shall provide com-

a person who is not a member of the bar

government entity. It was dClcmlined

petent representation to a client.

in the performance of activity that consti-

lhat a law sludent could. Ms. Short was

Compelent represel1lalion requires the

tutes the unauthorized practice of law,

then hired.

legal knowledge, skill, thoroughness and

and a lawyer shall

1101

engage in conduct

May 14, 1996, he stated that he was

preparation reasonably necessary for the

thaI is prejudicial to the administration of

present for the trial of Floyd Freeman.

representation. And, a lawyer shall not

justice.

During voir dire, he stated thaI he

practice law in a jurisdiction where doing

received a message that Circuit Judge

so violates the regulation of the legal pro-

on May I, 1996, Wray, as Prosecuting

Don Glover was in ChicOI County and

fession in that jurisdiction.

Allorney for the 10th Judicial District,

was going to conduct revocation hearings.

employed Caryn C. Short as Deputy

As no other prosecutor was available, he

States Bankruptcy Court for Ihe Eastern

Prosecuting Attorney. Ms. Short was, at

requested leave from Judge Pope and

District of Oklahoma. It was through his

the lime, a law student at the University

went to ChicO! County, conducted lhe

employment as such that the facts giving

of Arkansas Little Rock School of Law.

hearings, and returned in time for closing

cause to the complaint arose. From the

She was not licensed by the Arkansas

arguments. Mr. Freeman received his

beginning of Yarbrough's representation

Supreme Court nor was she certified pur-

sentence and a hearing on motion for new

of Barbara Crulchfield in her bankruptcy

suant

trial was held in May 1996 on the basis

proceeding in Oklahoma, there were

that Ms. Short was not a lawyer and was

problems and deficiencies with certain of

not qualified under Rule Xv. The trial

the court fi lings. When he was first noti-

court denied the motion, but he stated that

fied of the deficiencies in the filings, he

Attomey David L. Chambers states that

10

Rule XV of the Rules Goveming

Admission to the Bar. Since her installation on May I, Ms. Short has performed the duties of a

Mr. Bonney is a Trustee in the United

lawyer disciplinary actions wrote the Bankruptcy Judge and also

with Ms. Crutchfield's case. Because of

MR. CUNTON SCOTI CLARK

filed a Motion for Extension of Time

the urgency of the situation, he assened

NOR"'" LITILE ROCK, A R

with the Clerk. None of the allegations

that he prepared the absolute bare essen-

made in his letter to the Judge appear in

tials for a Chapter 13 bankruptcy pro-

his Motion. An Order was entered dis-

ceeding. He averred that he only intend-

caution for violation of Rules 1.2(a). 1.3

missing his client's Chapter 13 on June

ed to initiate the case so Ms. Crutchfield

and 1.4(a) of the Model Rules of

13,1995. Then, on July 25,1995. he

would have the opportunity to hire an

Professional Conduct upon the complaint

filed a second Petition under Chapter 13.

Oklahoma altomey to complete the mat-

of Polly Sue Petersen. These Rules

The Plan he submitted was not in com-

ter for her. Once again, because of the

state, in part, that a lawyer shall abide by

pliance with the Local Rules. He was

time urgency, he asserted that he had his

a client's decisions concerning the objec-

directed to comply by August 18, 1995,

secretary hand-deliver the pelition for fil-

tives of representation, and shall consult

but he did not do so. Based on this fail-

ing. According to his response, as of the

with the client as to the means by which

ure, another Order of Dismissal was

date of filing, he had not received or

they are to be pursued; a lawyer shall act

entered. He advised the Court that he

requested a fee. It was his realization

with reasonable diligence and prompt-

had not received the Order directing

that the Plan would need to be supple-

ness in representing a client; and, a

compliance. so the time for complying

mented but he felt he had to get some-

lawyer shall keep a client reasonably

was extended by the Judge. When noti-

thing filed on her behalf. He stated that

infornled about the status of a mailer and

fied of this extension, he was also direct-

it was because Ms. Crutchfield failed to

promptly comply with reasonable

ed

provide him with the necessary docu-

requests for infonnation.

10

become admitted

10

practice in the

Clinton Scott Clark received a lener of

Eastern District of Oklahoma as is

ments that he was unable to timely sup-

required of all attorneys practicing in

plement the filing. After Ms.

Petersen explained that Clark was hired

that Bankruptcy Court. Prior to that time

Crutchfield's first filing was dismissed,

in April of 1995 to represent her in an

he had taken no action to do so. After

In her affidavit of complaint, Ms.

she requested that Yarbrough continue to

action to collect back child support and

receiving this notification, he attempted

assist her so once again he filed a

medical bills. A Motion to Show Cause

to file a Chapter 13 Plan by facsimile

Chapter 13 Petition for her. It was his

was filed by Clark on Ms. Petersen's

transmission. When advised that the

understanding that Ms. Crutchfield

behalf on May II. 1995. During June of

Clerk would not accept it, he wrote a let-

would obtain Oklahoma counsel and

1995, a hearing was held wherein Ms.

ter explaining his dissatisfaction. He

have thaI person Subslituted for him in

Petersen was granted judgment for child

also explained that his being required to

the proceeding. He also assened that he

SUppoT1 arrearage and medical expenses.

do so was not the way things were done

took lhe proper steps to become admined

The Order was not presented to be

in Arkansas. However. he was appearing

to practice in Oklahoma as directed by

signed until September. Ms. Petersen

in Oklahoma and in order to properly

Judge Cornish in the bankruptcy pro-

began her attempt to contact Clark a

represent his client, he had to comply

ceeding. He stated it was his secretary

month after the hearing because she had

with Oklahoma's rules and procedures,

who sent the facsimile transmission and

not heard anything from him.

which he had not done. He undertook to

that he advised her of her error.

Repeatedly, Ms. Peterson asked him to

represent Ms. Crutchfield in a bankrupt-

Yarbrough admined, because of the lack

formalize the Judgment and Order but he

cy in Oklahoma without being admitted

of time involved in filing Ms.

failed to do so. Based on Ms. Petersen's

to practice before the Court and without

Crutchfield's Petition, he did not acquire

ex-husband facing criminal charges, she

complying with the requirements of the

and digest the local rules. It is his stated

needed the Judgment on record as quick-

local rules.

belief that he did not practice law in vio-

ly as possible. Instead of filing this

Yarbrough began his response with an

lation of the regulations of Oklahoma by

Order right after the hearing, he waited

explanation of how he became involved

being involved in Ms. Crutchfield's case.

until the day before her ex-husband was

lawyer disciplinary actions sentenced for his criminal charges. Even

inquiries concerning the funds and

stated that he miscounted the number of

though he filed the Order in September,

learned that it was not the money of Ms.

days to file the appeal and, as a result, the otice of Appeal was filed one day late.

Ms. Petersen received no notice of it until

Petersen's ex-husband so it was not avail-

several months later. Additionally, Ms.

able for Ms. Petersen to collect. As for

On October 9, 1996, the Arkansas

Peterson direct.ed him to attempt to anach

the Motion to Abate, it was his statement

Supreme Court Clerk issued a per curiam

the cash funds which had been posted for

that he did advise Ms. Petersen of the

opinion in which the Court treated the

her ex-husband's bond. Clark never pro-

Motion prior to her ex-husband's sentenc-

Motion as a belated appeal and granted

vided Ms. Pecersen any infonnation con-

ing. Further, according to Clark, because

the Motion. A copy of the per curiam

cerning auempts to collect these funds for

Ms. Pelersen objected to abaling the child

was then forwarded to the Committee on

her.

support, he attended the hearing at her

Professional Conduct.

0

actions were taken by Clark in

For his response, Loftin stated that he

that regard according to Ms. Petersen's

instruction to voice her objections. Also,

files. Ms. Petersen learned during

he asserted that when Ms. Petersen

did not represent the appellant at trial but

ovember of 1995 that a hearing had

inquired about appealing, he told her that

was approached by the appellant's mother

been held on a Motion to Abate Child

there was no basis for an appeal. Clark's

near the end of the time to file the Notice

Support. Ms. Petersen had not been

response closed by setting out his belief

of Appeal. He then checked the lime for

infonned of this Motion by him. He gave

that he represented her interests in the

filing and detennined the deadline date.

Ms. Peterson no opportunity to advise

spirit of the code as written.

That date fell on a hal iday and the notice was filed

him of her wishes related lO that Motion.

the next business date.

When the record in the case was

Clark told Ms. Petersen that she could appeal the Order, but then he failed to

MR. DAVIS HENRY LOntN

send her the documentation to do so. Ms.

WEST MEMPHIS,

AR

returned after being refused by the Clerk, Loftin slated that his secretary apparently placed the record in the file without alert-

Pet.ersen did not receive her file from

Clark until the end of February 1996.

011

Davis Henry Loftin was reprimanded

ing him. He asserted in his affidavit thai

for his conduct which was in violation of

he relied upon his secretary

tance of Ms. Pelersen asked Clark to

Rules 1.3 and 8.4(d) of the Model Rules

time-sensitive matters and that after this

assist Ms. Petersen. After Ms. Petersen

of Professional Conduct upon a Per

incident staff changes have been made

provided him with the medical bills

Curianl for George Jones, Jr. These

and procedures implemented to insure

involved and the figures on the child sup-

Rules state, in part, that a lawyer shall act

that appeals are handled in a timely man-

port. Clark visited with her by phone

with reasonable diligence and promptness

nero

about these matters as well as her ex-hus-

in representing a client, and it is profes-

band's criminal charges. He explained

sional misconduct for a lawyer to engage

that Ms. Petersen lold him several times

in conduct that is prejudicial to the

of the urgency of obtaining money from

administration of justice.

According to hi respon e. an acquain-

her ex-husband. According to him, there

maintain

On August 28, 1995, Loftin tendered

were several telephone conversations

the record in the case of Jones v. Stale of

between he and Ms. Petersen during

Arkansas. He was then notified on the

August, but they were not about the

same date that the record could not be

Order for child support arrearages but

filed because the notice of appeal was

rather about her ex-husband's court casc.

filed late and that he could file a Motion

Clark asserted that his assurance to Ms.

for Rule on Clerk to correct the problem.

Petersen was that the Order would be

On August 7, 1996, almost one year later,

filed before sentencing. As relates to the

Loftin filed a Motion for Rule on Clerk.

bond money, he asserted that he did make

10

In the Motion for Rule on Clerk, Loftin

ArlOl{'I)

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hll~\..' bOl1lhl''', ,111d n1l,di\..",11.

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Ii U, .lrlam! IJ"tPT S,ri1f I!!i

In Memorium Donald J. Adams Attomey Donald Joe Adams. 55, of Harrison died in early January 1997 at Springfield. Mo. During his more lhan 30-year career. Mr. Adams was involved in several high-profile cases. including numerous murder trials. He helped eSlablish the first Marion Counly Municipal Court. serving as the first Marion County municipal judge and later Boone County municipal judge afler he moved his practice to Harrison. He also sat as a special justice on the Arkansas Supreme Court.

He wa a member of the Boone- ewton County Bar Association, the Arkansas and American Bar Associations, and the Arkansas Trial Lawyers Association. He was a charter member and first president of the Arkansas Board of Trial Advocates.

Mike Skipper Mike Skipper, 51, of Little Rock died in February. He was a member of the

Johnson, Judge Harris began serving as .5.

Dimicl Judge on Feb. 3, 1966. He became Chief Judge of lhe Western District of Arkansas and served on the Executive and Budgel Comminees of the Judicial Conference of lhe Uniled Stales, the goveming body of the federal judiciary.

..The AJkansas Bar Foundation acknowledges with graleful appreciatioo the receipt of memorial gifts and scholarship COIItributioos given in memory of the following individuals from January 1, 1997. through February 28. 1997:

Robert Bynum Gibson, Sr. Robert Bynum Gibson, Sr., 76, of Dermott died in December.

Judge Gibson wa a navy pilot during World War II, serving in lhe Pacific. He fought in lhe banles of the Philipines, Okinawa and Saipan.

After returning from World War II 10 Southeast Arkansas, Judge Gibson organized the first municipal court in ChicOl County and served as the judge. In 1987, Govemor Bill C1inlon appointed him chancery and probale judge for the 10th Judicial District.

He gradualed from the University of Arkansas Law School.

ThurslOO and Catherine Roach Peter G. Kumpe Judith Gray

I. . MEMORY OF JL'DGE BRUCE T. BULLlo.

Arkansas Bar Association and the Arkansas

Trial Lawyers Association. He served his country in the United States Air Force.

Donald Gordon Rogers McDermott Donald Gordon Rogers McDenllott. of Little Rock. died in February.

He was a Chief Attomey with the Veterans Administration for 37 years. having relired in 1982. He attended the University of Arkansas and received a doclorate of Law Degree from Georgetown niversity. He was a member of the Arkansas Bar Association.

U,S. District Judge Oren Harris Judge Oren Harris, age 93, of EI Dorado, a retired U.S. District Judge, died in February.

Judge Harris' career spanned almost 60 years of public service in the executive, legislative and judicial branches of government.

Upon appointment by President Lyndon

J.F. Geister, Jr, John Franklin "Bucky" GeiSler, 89, of Linle Rock, died in October.

Bom in Brinkley. Arkansas, he attended the Linle Rock Public Schools before graduating from the niversity of Arkansas School of Law. He was a practicing anorney for over 50 years. Mr. Geister was a 32 Degree Mason having been a member of the Magnolia Masonic Lodge #60, Sconish Rite Consistory. and a Scimitar Shrine Temple all for over 50 years. He was also a member of the American. Arkansas and Pulaski County Bar Associations for over 50 years.

Mr. Geister was a veteran of World War II serving in the U.S. Army and was a emmber of M.M. Eberts POSl # I of the American Legion. He was a member of the orth Liltle Rock Elks Club and during the days il was in service, he was a member ohe Litlle Rock Athlelic Association, "Boathouse" and the Quapaw Club serving as President and Secrctaryrrreasurer of each. Mr. Geister was also a member of First United Methodist Church.

Mr. Geister, Jr., left the Arkansas Bar Association $500 in his will in memory of his parents Zenobia and John F. Geister, Sr.

1.'1 MEMORY OF J. LEE M

EY

Judge Robin L. Mays IN MEMORY OF JUDGE

ORE.

HARRIS

William A, Martin Do. LD J. AD MS ScHOLARSmp FuND, MEMORY OF DoNALD J. AD MS

1.'1

An endowed scholarship has been established with th~ Arkansas Bar Foundation in memory of Don Adams. Th. Donald J. Adams Scholarship will prol路jde an enduring means of rt'membering an outstanding lawyer as well as pro\'itk an excellent way 10 aid dt'serving 10M' students.

Memorials designatt>d 10 the Donald J. Adams Scholarship Fund may be made to the Arkansas Bar FOllndation. 400 West Markham. Linle Rock.

AR 72201.

Roy J. Baker, Jr. H. David Blair Thomas and Deborah Knox Mr. and Mrs. Tom Milburn James D. Spron Law Firm Walker, Campbell. Campbell, PLC Mark and Sberri Billings Keny L. and Rebecca Cavaness Danny and Mary Hickman James and Fern icbolson Mr. and Mrs. Charles . Oxford Kenneth R. Smith Jack, Mary. Leona Walker and Duane and Karen Knight White-Rodgers Divisioo Emerson Electric Company Judge Judith R. Bearden Michael E. Kelly Frank and Carolyn anarnore, Sr. Lane and Judy Strother Steve. Linda and Jeff Wood Ray and ataIie Bernard J.E., Jr. and Leola Dunlap Dan R. Bowers I !,!ardin. Dawson & Teny Law Firm I Nadine Tipon Mrs. Buddy King Judge Ernie E. Wright Younes Law Finn Burl King Ramona Roe Arkansas Trial Lawyers Association

'What's in it for my firm?'

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

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