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VOLUME 32, NUMBER 4 PUBLISHER

Arkansas Bar Association

on en s

Phone: (501) 375-4606 Fax: (501) 375-4901 Homepage: www.arkbar.com E-Mail ARKBAR@intellinet.com

ASSOCIATE EDITOR

Sara lJJlldis

A Watershed Year for Bankers: Arkansas' 1997 Banking Legislation

by W. Christopher Barrier alld Johll S. Selig

EDITORJAL BOARD Gerard F. Glynn, Chair Wiley A. Branton

Thomas M. Carpenter Stacey A. DeWitt Morton Gitelman James c. Graves Martha L. Londagin Thomas H. McGowan AI Schay

II

Before Central High...

Brewer v. Hoxie School Districl

by Mort Gitelmall alld Bill Pellix

16

Jacqueline S. Wright OFFICERS President Jack A. McNully President-Elect Robert M. Cearley. Jr. Immediate Past President Harry Truman Moore Secretary -Treasurer Daniel R. Cartel' Executive Council Chair Jack Davis Young Lawyers' Section Chair Scotl Morgan Executi ve Director Don Hollingsworth Assistant Executive Director Judith Gray

On the Cover: "Woman with Nurturing Hearts, • Jose Ortega, Inc.

VOCALS 1982-1997: Joint Venture for Justice

by Jean Carter and Mary Ht!l1ry

20

Public Opinion Poll: How lhe Public Views Female and Black Attorneys

by Jllstice Robe,., L. BrowlI alld Sheila Campbell

,

22

Remarks of Judge Andree Layton Roaf

24

by Jlldge Alldree Laytall Roa!

Time For Change 30

by Dialle Schratz Holitik

EXECUTIVE COUNCil

J. Ray Baxter William M. Bridgforth Daniel R. Carter Robert M. Cearley, Jr. Thomas A. Daily John A.~Davis, III Thomas F. Donaldson, Jr. Lynn M. Aynn Dave Wisdom Harrod Michael E. Im'in Louis B. Jones. Jr. Thomas D. Ledbetter Jack A. Mo'Julty Michael W. Mitchell Harry Truman Moore R. Scott Morgan Brian H. Ratcliff Stanley D. Rauls Steven T. Shults James D. Sprott Lynn Williams

Arkanslis Lnwyer (USPS 546-040) is published quarterly by the Arkansas Bar Association.

Periodicals postage paid at Utile Rock, Arkansas.

POSTMASTER: send address changes to The Arkllllsas Lnwyer, 400 West Markham, Little Rock, Arkansas 72201. Subscription price to non-members of the Arkansas Bar Association $25.00 per year and to members $10.00 per year included in annual dues. Any opinion expresSed herein is that of the author, and not necessarily that of the Arkansas Bar Association or TIle Arkmlsas Lawyer.

Contributions to TIle Arkansas Lnwyer are welcome and should be sent in two copies to EDITOR. TIlt Arkansas Lawyer, 400 West Markham. Little Rock, Arkansas mOl. All inquiries regarding advertising should be senllo TIle Arkansas Lnuyer at the above address. Copyright 1997, Arkansas Bar Association. All rights resef'\'ed.

17lfl

Shielding Volunteers from TorI Liability

34

by Frances Fendler Rosenzweig

[aLTA: What is it? What Does it Have To Do Wilh My Clients' Money?

by Lisa Meltall

40

In Every Issue 3 4

by Jack McNulty A LITTLE GOOD NEWS, by Shannon Eversole EXECUTIVE DIRECfOR'S REPORT, by 0011 HollingslVonh LAW OFFICE TECHNOLOGY, by Lynn Faster LAW, LITERATURE & LAUGHTER, by Judge Vic Fleming CLE & ARKANSAS BAR ASSOCIATION CALENDAR YOUNG LAWYERS SECfION REPORT, by SCOII Margan COMMITTEE & SECfION NEWS

39

LAWYER DISCIPLINARY ACfIONS

42

IN MEMORIAM

47 48

PRESIDENT'S REPORT,

CLASSIFIEO ADVERTISING/INOEX TO ADVERTISERS

5 8 9 15 33

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

The Arkansas Bar Association knows how impol1al1l UUSt is in a business relationship. that's why they're always looking for solid, reliable ways to do more for you. Like AT&T Profit By Association. l1lis 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 AT&T Profit call to get through, the AT&T long distance network gives each call Ih ,\ssOCi.1 t ion a choice of up to 134 routes to irs destination. Which is why only Nc!lclln/1I1 (,/ltl/lIl1/I'l'd I 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 reliability and on-time installation, AT&T offers you certainty in an uncel1ain world.

Give yourself the cel1ainty that only AT&T guarantees. Call 1 SOO 722-7756, ext. 1486, to sign up for AT&T Profit By Association toclay.

XIm: For the life of your business." limitations on guarantees' coverage and remedies apply Certarn restrictions apply. Call for details. C1997 AT&T

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President's Report

American Bar Association House of Delegates

by Jack McNulty

As President of the Arkansas Bar Association, I have the pleasure and

responsibility of making hundreds of appointments of our members to Association committees and task

forces.

In the past, on occasion, the

Association's President appoints a member to a State government com-

mittee or commission. I was recenLly

faced with two unexpected appointments.

Traditionally, members of the Arkansas Bar Association have elected one of OUf members lO be OUf delegate in the House of Delegates of the American Bar Association. This dele-

gate position is for a two year ternl. to the Spring of 1996, Professor Robert Wright was elected 10 a two year term

to expire after the ABA meeting in August 1998.

At the Annual Meeting of the

American Bar Association in August 1997, Professor Wright concluded his term as Chair of the American Bar Association's

Seclion

on

General

Practice, Solo and Small Firm Practitioners, and was elected by that Section as its delegate to the House of Delegates of the Association.

Consequently, Professor Wright resigned his position as delegate of the Arkansas Bar Association, resulting in a vacancy in that position.

Under our

Constitution this vacancy is to be filled by appointment of the President of the

the President, with the approval of the House of Delegates, to serve the remainder of the unexpired term which, in this case ends in August

1999.

Faced with the appointment of two of our members to be delegates to the

House of Delegates of the American

the House of

Bar Association, I considered the qualifications of a number of our leaders who were interested in assuming this

Delegates of the American Bar Association. We are, indeed, well represented, both in numbers and person-

responsibility. As far as I could deterwhen the President of the Arkansas Bar

ages.

Advisory Ethics Opinions One of the benefits of membership

Association was called upon to appoint

of our Association which is oflen over-

mine, there had never been a situation

one, much less two, delegates and obviously we have many qualified members who would do a fine job.

After much' consideration, I elected to appoint Harry Truman Moore to fill the unexpired term of the delegate position which had been occupied by Professor Wright, which will expire in August 1998, and Carolyn Witherspoon to fill the unexpired tenn

of the new delegate position, which will expire in August 1999. Both Carolyn and H.T. are past presidents of our Association. In fact, they are our 1110st immediate past presidents. They

have both been outstanding leaders of our Association, and they have both also been active in the American Bar

Association. On October 18th our House of Delegates approved these

Arkansas Bar Association, with the

appointments.

Another member of our Association

approval of the Arkansas House of Delegates, to serve the remainder of the

is Bill Allen, who is also a delegate to the House of Delegates of the

unexpired tenn which ends in August

American Bar Association. This delegate position is one which is elected by

1998.

Thus there are now five of members our Association who serve in prominent roles in

looked

is

the

Advisory

Ethics

Opinions. Under appropriate circumstances, advisory ethics opinions are issued by the Association's Professional Ethics and Grievances Committee, which is chaired by

Professor Howard Brill.

Advisory ethics opinions will only be issued in response to a wriuen request from a licensed allomey who is a member of this Association. At the August meeting of our Executive Council, the issuance of these opinions was restricted to members of the Arkansas Bar Association. This action was taken in response to the argument thai it is unfair for a nonmember to enjoy such a benefit, while not paying membership dues, particularly since

these dues support a variety of public services for the attorneys and citizens of our state.

Requests for advisory opinions must be in writing and must be submitted to the Association's Executive Director,

along with a check for $50.00 to cover basic expenses. There are 4 require-

At the same time this vacancy

the members of the American Bar

occurred, our Association was certified

Association who practice in Arkansas.

There is another Arkansan in this

ments as wel1: I )requests must relate

mix.

by the American Bar Association for a second delegate position, due to an increase in the number of Licensed attorneys in Arkansas.

Thus, our

Association had a second delegate position to be filled by appointment of

to the prospective conduct only;

2)

Phil Anderson is the current

they must contain a complete statement

President-Elect of the American Bar

of all facts upon which the opinion is

Association, and will become ABA President at the end of the ABA House of Delegates meeting in August 1998.

requested as well as a concise question

See "Presidelllt's Report" page 4/

A Little Good News

1997 River Valley Volunteer Law Firm of the Year

by Shalllloll Eversole VAP is a joint venture of Western Mission: Volunteer Allorney Project first firm to be recognized by the is a joi", \'ellfure of Wesrern Arkansas Volunteer Anomey Project. In the past, Arkansas Legal Serviees and the Legal Services Gnd 'lte Sebastian and the award has been presented to indi- Sebastian and Crawford County Bar Cr{1H1ord County Bar Associariolls. vidual attorneys. However, this year, Associations. VAP was established in VA? was established ill /989 (O provide the VAP Advisory Comminee selected 1989 to provide pro bono legal assistance in civil cases to indigent pro bono legal assiswnce in ........- - - - persons living in Sebastian ci\'i1 cases 10 indigem persons ____ and Crawford Counties. living lIJ Sebastian and The project currently has Crawford Coumies.

Member al10rneys handle a 126 volunteer anomeys from maximum of two (2) pro bono the two county area. and cases per year, or contribute began as the 12th Judicial $/50 annually. which is "sed 10 District Volunteer Attorney assist YAP in the represenwProject. serving Sebastian and Crawford Counties.

1ion of poor persons in Because Crawford County Sebastion Cral\1ord ColtJ11ies.

Mr. Robert Bishop accepts has now become the 21 st the "1997 River Valley Judicial District, the VAP Volunteer Law Firm of the Advisory Commillee voted to Year" award on behalf of his Lift to Right: Ray Fulmer, VAP Committee Chllinllflll, Rob"! change the project name to law firm, Daily & Woods of Bishop, aud Mark Moll, President, SttbflS/;mr County Bar River Valley Volunteer Association.

Fort Smith. The award was Attorney Project in order to presented by Ray Fulmer. recognize the panicipation of Chairman of the Volunteer Anomey the Daily & Woods firm 10 be the recip- both judicial districts. VAP has been Project. at the first meeting of the ient of the award because of the signif- coordinated by Shannon Eversole since 1992.•:.

Sebastian County Bar Association. icant amount of pro bono work providThe Daily & Woods Law Fim, is the ed by firm members.

MARIE SCHOENFELDT, Paralegal and Administrative Assistant with the Firm of Evans, Farrar, ReiSt Rowe & Nicolosi of Hot Springs, has received the Award of Excellence from the National

Association of Legal Secretaries for 1997.

Mrs.

Schoenfeld was interv iewed and selected to receive this honor at the Annual Forum of the Association

in Boston on July 27, 1997. This competition is based on years of experience in the legal profession, association achievements. professional activities and legal education.":·

LETTERS WELCOME The Arkansas, Lawyer welcomes reader comments - letters to the editor and

any "good news." Leners should be no long~r than 250 words.

Anonymous lellers will not be published. The editors reserve the right to edit leners for style, length and continuity. Advenising rates and infonnation are available upon request.

Leners, inquiries and advertising may be sent to: '. Adrienne Brietzke, Editor The Arkansas Lawyer

BIRTHIlAY GREETINGS GO TO:

Relired

Chancellor

Royce

Weisenberger, who served in Pulaski,

Jefferson, Garland and Union counties for 20 years, will be celebrating his T~ \rtmlll.l~ltr

rlllilli

90th birthday December 13, 1997. The celebration will take place from noon to 3:00 p.m. at the Western Sizzlin Restauranr in Hope. Arkansas.•:..

400 Wesl Markham Linle Rock, AR 7220 I 501/375-4606 or 800/609-5668 or fax correspondence to

501-375-4901

Executive Director's Report

Membership Dues Structure

by DOli Hollingsworth The structure of our Association's membership dues has evolved over many years. Because of the structure's lack of Fairness to some categories of attorneys as well as the desire to avoid numerous special dues categories, the

House of Delegate established a Task Force to study the dues structure.

The Task Force may make its recom-

the one implemented by the Tennessee Bar Association two years ago. It's central feature is a base dues rate, which

about 70% of their members pay. The remaining 30% of members pay a lesser rate based upon their law-relat.ed income. There are 4 to 5 income ranges with different dues rates, and those members who selecL this method of

olTImcnding a

fair system of dues for our members.

Further, Task Force members seem to Favor a new system which

mendations to the Executive Council at

determining their dues "check off' their

wiLl

the December 6 meeting in Pine Bluff.

The House of Delegates will have to approve any changes since they would amend the Association by-laws. The

corresponding income range. Privacy is

come-neutral

assured with only the Membership

overall. In other words, there wiLl not be

Director and Executive Director having access to an individual member's

House will next meet on January 24 in conjunction with the mid-winter meeting in Memphis.

check-off.

Tennessee has reported that it is pleased with this new system, and they

any intentional increase in the total amount of dues income collected under a new structure. (There is also the possibility that a new structure could decrease dues-income initially, but with the expectation thaL the structure will mean a larger membership for the Association in the future.)

The Task Force is composed of 18

view it as fairer and less complicated.

Association members who are representative of the legal profession in Arkansas, and reflect its diversity.

They have examined the dues structures of other state bar associations and have

They still offer special dues rates for

identified the strengths and weaknesses of our structure. The following are

dues for first year attorneys along with

some examples of the issues

being

studied: I. The cornerstone of the dues structure is the number of years of practice.

Is this still a relevant or fair basis for determination of dues?

2. Are the special dues rates and exemptions still justified?

3. Does the dues structure significanLly impact on membership participation by certain categories of attorneys

(e.g. government attorneys).

4. How should the Association address the problem of the increasing numbers of senior and retired members

who pay little or no dues and the increasing trend of less participation by

such categories as out-oF-state members and retired members.

Our Task Force has preliminarily voted to retain the Association's free some version of a retired member special dues.

Arkansas is somewhat unique in that we have both a senior and

retired category. It appears likely the Task Force wiLl recommend that the Association maintain a special dues rate for out-of-state members, but increase the current rate of $35.

Our current structure has 9 different dues rales. We do not have a special dues rate for government attorneys, which is one of severaJ groups where we have below average participation. If our Association does not adopt a dues structure simi.lar to Tennessee's, consideration may be given to more special dues categories.

Please note lhat the shortcomings of

younger atlomeys?

our dues structure have been recog-

5. Do the dues jumps of the current structure (from $35 to $90 at 4th year, to $150 at 10th year) negatively affect

nized for a number of years. Some of the roadblocks to refornling it have included the difficulty of reconciling

member retention because of the size of

the variety of special circumstances and

the jump, or the perception engen-

the difficulty of maximizing fairness

dered?

Some attorneys have com-

among all members. OF course, there is

plained that their dues increased while

also lhe inherent problem of projecting

their income was the same or lower.

the economic impact of a new structure on the Association's annual income.

The Task Force is committed to rec-

As of mid-OclOber, the Task Force is considering a dues structure similar to

be

in-

Approximately 72% of licensed attorneys residing in Arkansas belong to our Association. While this is a good percentage for a voluntary st.ate bar association, we can and need to do bet-

ter. It is important to the future health of the legal profession in Arkansas that all attorneys in the state participate in professional and public service activities, and by ext.ension, participate in our Association. But to significantly increase the percentage of attorneys who belong to our Association, and

enjoy the many benefits it offers, we must first be able to offer a fair dues requirement and continue to offer everbetter services to our members.•:.

Current Annual Dues Admitted to practice more than 10 years

$150.00

Admitted to practice 4 to 10 years

90.00

Admitted to practice 3 years or less

35.00

Appellate or trial judge

7500

Member residing outside Arkansas

35.00

Member on active duty in U.S. Military

35.00

Retired Status

35.00

Law Student Section

10.00 fall 1l9i The Mlmas 1,"'Jer ;

•• • •••••

UCED COST

The cornerstone of an attorney's professionalism is up-to-date information. The Arkansas Bar Association provides the most comprehensive statewide CLE program, and members pay reduced tuition! Over 20 CLE Seminars are produced annually.

Annual Meeting, Hot Springs - June 1998. For CLE, for spouses, for kids, for friends.

Best of CLE, Little Rock - June 1998.

TIp Irlma! I,alllrr l'a1l199i

LEGI

You are well-represented on legislative issues affecting the profession and legal system. The Association's full time lobbyist represents its members' interests in the Legislature.

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IN THE ARKANSAS BAR ASSOCIATION PUBLIC

• The Arkansas Lawyer • The NewsBulletin • Legislative Summary From the Hill • The Arkansas Law Review • The UALR Law Journal

MEMBERS RECEIVE A SPECIAL DISCOUNT

Ten practice handbooks on CD-ROM from LOIS and in print from this Association. The

Handling Appeals in Arkansas was just pub-

Brochures on Law-Related Topics are available for members to share with clients or civic groups.

lished, and an updated version of the Arkansas Form Book will be available later in 1997. Call the Association at 501-375-4606 for print version or call LOIS at 1-800-364-2512 for CDROM. Statutes of Limitations Handbook (June

CAR

1997) - Free to Members Only

AVIS - for discounts call 800-331-1212 and give them this number, B-314500.

AT .'~:::

An arrangement between the Arkansas Bar Association and AT&T provides members with discounts on long distance, 800 service, fax and

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Call 501-661-5853 or 680-5029 for discounts on services and equipment.

even residential calls.

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UPS gives members discounts and quick response time. Call 800-325-7000.

L 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.

This Association has endorsed the American Bar Association's program. It offers options, stability, and comprehensive services.

Association members do this through the legislative program, Sections/Committees, Mock Trial Program, Juveniles for Justice, Young Lawyers Section's projects, and special studies.

Call 800-826-8901. rlll199i TIe "rholl! Lall}er

Law Office Technology

www.ark.org: The Information Network of Arkansas

by Lynn Fosler

Whal is the Information Network of

users of state information:

county

Arkansas? It is a public instrumentali-

clerks, libraries, anomeys, banks, and

Iy established by the 1995 General Assembly, wilh the charge of providing

accountams. I was the original repreBar sentative of the Arkansas Association on the rNA, but Professor

and improving electronic public access to public state information.

The enabling act was modeled after Ihat of Kansas, whose information network

has been copied by several other Slates, including Nebraska, Indiana, Georgia and Indiana.

The Informal ion Network of Arkansas (INA) board is chaired by Secretary of tate Sharon Priest.

Members are drawn fTom state agencies

and groups thai typically are. heavy

John Watkins of the UAF School of Law lOok my place in early 1997.

Network Manager for INA is Joseph Nemelka, who has a strong computer background and is also an anomey.

The INA appeared on the Intemet on August 22. II is currently working wilh slate agencies such as the Department of Finance and Administration and the Secretary of State to provide heavily used information such as drivers license

corporal ion records and U.CC filing records on the Internet.

Some of this information is already in electronic fann and will be available in records,

the next few momhs. Information that is not electronic must be converted,

which takes time, but rNA is working with agencies 10 gel this process underway.

INA is "fee-funded" and works 10 provide heavily used, "value-added" infom131ion for a nominal charge, to be sel by the Board. However, much of ils information will be available for free.

Agencies will retain ownership and

control of their data, and nOlhing will be made available that would violate the Arkansas Freedom of Infonnation

Act. Some of the legal information that INA would like to make available 10 Ihe TM

public

includes

regulations.

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INA is not a competitor

with vendors such as LOIS, LEXIS or WESTLAW; it does not provide powerful, sophisticated search engines. But it does plan to make available easily accessible, free or low-cost information. In slales with similar agencies, I A's counterparts are becoming involved in the move toward electronic I recommend you visit the site, at

www.ark.org. Right now there are IUlks 10 Arkansas stale agencies (anolher lask of INA is to help agencies develop their Intemel sites). And keep an eye on www.ark.org. It wiU grow into an important infonnation provider

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Lynn Fosler is Ihe Associate Dean for Academic Affairs alld Professor of UIW at Ihe UALR School of Law.

Law, Literature & Laughter

"Dear Judge Fleming" Kids Comment on Campus Court Copyrighr /997 By Judge Vic Fleming "Dear Judge Fleming, Hello, how are you? I am fine. I wanted to write to tell you what I learned from your program," the sixth grader wrote. "I

learned that even if you drink just a little bit (and drive), you can still hurt someone."

The letter was one of over 100 that I received in the wake of implementing a creative and dynamic program earlier

this year. In "Campus COLIn I Critical Choices," I literally take the courtroom into schools for real cases. The cases are then followed by interactive lecture, using video vignettes showing consequences of unwise choices.

"Even a smart kid can make a fool-

ish choice." That's the motto of Troy, Michigan, District Judge Michael A. Martone, who founded the program, christening it "Courts in the School / Critical Life Choices." (My court staff shortened the title to what they believed was a "catchier" title.) Judge Martone was featured on the NBC "Today" show in September 1996.

By and large the sixth through tenth graders to whom this program has been presented in Little Rock are bright, honest and delightful. But they readily admit that they engage in some activities for no particular reason and "withoul thinking," leI alone talking to one

another about potential negative consequences. The main purpose of the program is to get kids to think before they

act and sometime talking causes thinking (you may quote me on that).

"I learned that before you do something wrong, think it over (and) that if someone passes out on the floor because he or she had too many to drink, you take them to the emergency room to get checked out by a doctor," another sixth grader wrote.

Here is how the program works. I select youthful looking defendants in my court who have already been found guilty of an offense that the kids can identify with or about which they need information. The kids all identify with OWl because they hear about it all the time. They all need infomlation about

suspended driver's license and noinsurance charges because these items are seldom discussed.

The chosen defendants are offered the option of being sentenced in front of a school crowd. They are told they will not be dealt with more harshly in that forum. Indeed, they are told that they will be given credit for some degree of community service for their willingness to participate. They report to the school library or auditorium for the sent.encing phase of their case.

Court is opened the same as it is downtown. The audience is told that they will not go to the principal's office if they act out, but rather will be charged with contempt and tried later in the week downtown. And, if found guilty, will have their next couple of weekends planned by my probation staff.

The defendants then make their statements for leniency. They have been encouraged to tell what they have learned from their experience in "t.he system." The defendants are then sentenced, and at least one of them is taken to jail from the school. At that point you can usually hear a pin drop on a carpeted !loor.

A ninth grader's impression of this was expressed like this: uThe reality of seeing someone handcuffed and sent to jail is about as real as it comes and frightening for a young person to think about. Hopefully, the fear will change some people's minds." Another wrote, "It gives you an 'in your face' check on how life really is."

Campus Court is thell recessed and the Critical Choices lecture begins. It is a 30-minute presentation designed to get the kids to teach themselves what they ought to be talking about before embarking on a certain course of conducl. At strategic points in the program I tum on the TV and show video clips.

One is a news story about an Arkansas high school girl being thrown from the truck in which she was a passenger at 3 a.m., her boyfriend having fallen asleep at the wheel while driving

home from the prom. Another capsules a Michigan case in which an intoxicated man drove the wrong wayan an Interstate, killing three young children and their mother and then being convicted of manslaughter and sentenced to 22 years in jail.

Other vignettes also show conse¡ quences of "critical choices": a 22 yearold speaking from a Delaware prison cell, a 14 year-old missing his sister, an 18 year-old maimed and crippled by a drunk drivcr. (As this column goes to print, I am updating our video library to include the North Carolina case where students were convicted of manslaughter after pulling up stop signs alld the LSU student who recently died of aleohoi poisoning.)

By the end of the lecture, the kids are tclling me what risk analysis is and whal topics and concerns they should be discussing among themselves before engaging in many of the activities that their friends are already engaging in.

One ninth grade boy wrote, "I feel you personally reached me because I did not know the consequences for OWl¡ not that I drink! But now I won't even think about it. Just looking at those people gave me a feeling that 1 never want to be in court for anything, so, "Nay ay. no no, You won't see me, Joe!" And a ninth grade girl wrote.

"Though some kids in a year or two may make the decision of drinking and driving, hopefully one person's mind may change because of your presentation."

I am available to any judge in this state to come demonstrate the ease with which this program can be established.

It costs practically nothing and it encroaches on the judge's time for just a few hours per year. I choose to think it is better for the kids to be talking about negative consequences on the front end, as this might lead to less weeping about them on the tail end.

And who knows? Someone's mind might be changed, or someone's life saved as a result of that talking.•:.

1',1I191i nr ,\rt~lslll,aw!rr

WHEN YOU THINK OF THE GREAT ARKANSAS LAWYERS OF THE PAST 100 YEARS ... •:. UM. Rose, the first President of the Arkansas Bar Association .:. General John Patrick Clayborn, the great civil war commander .:. Edward L. Wright, the American Bar President who was responsible for revamping the entire code of judicial responsibility to make it applicable to modern practice and the rights of the client .:. Joe Barrett and his work on the VCC .:. Henry Woods, and comparative fault .:. Harry Meeks, author of the Arkansas Probate Code .:. Ruby Hurley, a lifelong advocate for her clients despite a handicap .:. Robert A. Leflar, the great legal educator .:. Wiley Branton, Sr. and his civil rights contributions, these are some of the names we think of...

WHAT LAWYERS COME TO YOUR MIND? HELP US PLAN.

We need to know who or what you know.

Jot down your stories or names and send them to us for possible inclusion in our 1998 Centennial Celebration.

r------------------------------------------------, IYour suggestions:

L

Please send your suggestions: names to be recognized, stories, anecdotes, and any interesting facts frOIll the last 100 years to Adrienne Brietzke, The Arkansas Lawyer, 400 West Markham, Little Rock, AR 72201 or FAX 501-375-4901 for possible inclusion in our centennial celebration_

~

AWATERSHED YEAR FOR BANKERS: Arkansas' 1997 Banking Legislation

By W. Christopher Barrier and John S. Selig This is the second of two "Arkansas Lawyer" articles oLltlining the major changes in Arkansas banking laws adopted by the 1997 General Assembly. Theftrst article, which appeared ill {he Summer 1997 isslle, dealt with the Arkansas Banking Code of 1997 (Act 89 of 1997).

branching, even if approved after that effective date.

Currenlly, a slate bank may (I) engage in an interstate merger transaction in which it will be the resulting bank afler application and approval by the Banking Board, wilh the concurrence of the Bank Commissioner, and (ii) thereafter, continue to operate branches

Clearly, the Arkansas Banking Code of 1997 (the Code), the subject of our earlier article, is a very big deal for Arkansas

of the merged banks in the other states.

An out-of-slate bank may (i) engage in

bankers. However, the practical impact of companion legislalion--on branching, trust institutions and sales of insurance-

state bank in which the oUl-of-state bank is the resulting bank and (ii) lhereafler, oper-

an interstate merger transaction with a

may be jusl as profound for lheir business and their customers.

ate branches in Arkansas at the same loca-

au t-

tions which the state bank could have operated branches had the merger not

of-stale

BRANCHING OUT Prior lO the end of the 1997 regular session, the Code was amended by ACl 408, lhe Arkansas Interstate Banking and Branching Act ("lhe Branching Act"), which is Arkansas response to the federal

occurred.

interstate branching legislation referred to

generally as the Riegle-Neal Act, which permits bank branching and mergers across state lines.

The Riegle-Neal Act gave every state a choice of four options regarding interstate

branching: I. Opt-Out - Opt out of the Riegle-Neal ACl altogelher and prohibil interstate branching into and out of the state;

2. Merger - Allow interstate branching by mergers of banks located in different Slates;

3. De Novo - Allow interslate branching lhrough newly-formed branches; or 4. Acquisition - Allow interstate branching by acquisilion of existing branches.

The Branching Act penn its interstat.e branching only by merger, the second option. It became effeclive as of June I,

1997. Applications filed before that effective date are subject to prior law governing

A Slale bank may nOl establish a de novo interstate branch or acquire an interstate branch in another state, other than through an interstate merger transactioll.

The same section of the Branching Act also prohibits an out-of-state bank from establishing a de "ovo interstate branch or acquiring an interstate branch in Arkansas, other than through an int.erstat.e merger transaction.

OUl-of-state banks and Arkansas banks which are proposing to engage in interstate merger transactions must give certain notices, file copies of federal applications and meet ot.her applicable requirements of the Code.

OUl-of-stale slale-chartered banks with branches in Arkansas may offer any service which a Slale bank could offer. Slale banks with branches in anot.her state may offer the same services through lhose branches which banks may offer in the other state, subjecl lO the aUlhority of the Commissioner to limit the exercise of any power which is not granled to a state bank by the Code. After an out-of-stale bank has consummated an interstate merger transaction with an Arkansas bank, the

bank is authorized (0 establish new branches or limited purpose offices at any location where the Arkansas bank could have est.ablished branches or limited purpose offices had the merger not occurred. tn addition, the Branching Act modifies the rules with reference to mergers of state banks into national banks, and vice versa, and savings and loans into banks 10 be consistent with the brave new banking

world broughl into being by the RiegleNeal Act. AFTER THE MERGER After the consummation of a merger pursuant 10 an application filed under the Code, whether interstate or intrastate, the survivor bank may establish branches at

any location where any bank which was involved in the merger could have estab-

lished branches had the merger not occurred, with the same branching rights after a merger as the Riegle-Neal Act grants to the resulting bank after an int.erstate merger transaction. Core banking activities (receiving deposits, paying

checks or lending money) must take place al the main office or full service branches.

see "Baflks" page 12

fall199i ne .lrkm311,31l)er II

"Banks" on-core banking activities may be conducted at any location within the state of Arkansas at a limited purpose office.

A state bank may open a limited purpose office. after giving the Commissioner notice of the location. ownership. activi· ties to be conducted. cost and other infor· mation. if any. requested by the Commissioner. The separation of the activities into core banking and non-core banking and the geographic expansion of the non·core banking locations is intended to provide state banks wi(h the same authority which the Comptroller of the Currency has granted 10 national banks through interpretive rulings.

Any state bank may now locate Consumer Bank Communications Terminals ("CB Ts") at any location within the state of Arkansas as well as any location in one or more other states if per· milled by the law of the other states. This revision establishes a regulatory structure.

to the extent possible. for CBCTs operated by state banks and CBCTs in Arkansas operated by out-of-state state-chanered banks consistent with (he additional authority granted to national banks under the Economic Growth and RegulalOry Paperwork Reduction Act of 1996 as enacted by Congress and signed by the President on September 30, 1996.

Banks chartered by other states (whether or not such bank has branches in Arkansas or is otherwise doing business in Arkansas) may also locate CBCTs within the state of Arkansas. upon giving the required notice. Interconnected CBCTs. funds payment systems and computer systems are no longer subject to geographic limitations.

The Commissioner may examine. assess fees. and require repons from outof-state banks with branches in Arkansas. and may share employees, infom13tioll, examinations and other duties with bank supervisors from other stat.es involving

state banks wit.h branches in anot.her state and out-of-state banks with branches in Arkansas. The Commissioner generally has enforcement authority over out-ofstatc banks with branches in Arkansas. as to their Arkansas activities.

The Commissioner, with the approval of the Board. is given authority to issue regulations to implement the provisions of the statutes.

An out·of-state bank which has previously engaged in an interstare merger transaction as a result of which it has branches in Arkansas must give a thiny (30) day notice prior to the consummation of any transaction involving a change in control of the bank or any bank holding company controlling the bank.

Out-of-state banks which are the resulting banks of an interstate merger transac· tion with an Arkansas bank must apply for a cenific3te of authority to do business in

see "Banks" page 13

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"Banks" the state of Arkansas. The out-of-state bank must also make and keep current certain informational filings with the Commissioner.

The 1997 amendments to the RiegleNeal Act make it clear that the Arkansas branches of out-of-stale banks with state charters only will be subject to Arkansas laws, basically to the same extent as if they were branches of national banks.

THE ARKANSAS TRUST INSTITUTIONS ACT The Code basically dealt only with trust activities by banks or their subsidiaries, and deleted any reference to independent trust companies. However, Act 940 of 1997, passed late in the session, (the Arkansas Trust Institutions Act) now expressly authorizes such entities and sets out a comprehensive regulatory framework for trust institutions. (There are in fact two such trust companies acting in Arkansas, and Act 940 directs them to become regular business corporations, banks or the new statutory trust company.)

Actually, there are two kinds of trust companies pennitted under the Arkansas Trust Institutions Act, private and public trust companies. But private trust companies are defined as those which do not engage in the trust business with the general public. To figure out who is not a member of that general public requires that you haul out your tables of consanguinity-your greal aunt adine is probably not included, but your fourth cousin Ralph is-which is probably not worth the trouble for most practitioners, even if private trust companies have the advantage of being largely unregulated private investment vehicles.

Public trust companies, on the other hand, have capital requirements, and general regulations similar to banks. They exercise powers as fiduciaries, powers which, prior to the effective date of the Arkansas Trust Institutions Act, could be exercised only by state trust companies, state and national banks, federal and state savings and loans associations with specific trust authorization, subsidiary trust companies, and duly licensed out-of-state banks and trust companies.

However, remember that these public trust companies are not banks, because they cannot do both a general deposit business and make bank-type loans. They will

also avoid some regulations applicable to banks, such as those federaJ statutes governing bank holding companies and state law restrictions on branching.

They can make loans as investments. A public trust company may merge with a stale bank or with another business entity, to the same extent an Arkansas business corporation can, subject to review and approval by the Arkansas Bank Commissioner.

Along with the traditional fiduciaries listed previously, public trust companies may delegate their investment. management and administrative functions (provided they select that delegate with reasonable care, make their scope of authority clear, and periodically review their activities). The delegate may in some instances be an affiliated entity.

Actually, Act 940 deals with more than just trust companies: after years of unsuccessful effons to adopt the prudent investor rule as part of the Unifonn Probate Code, the rule now is adopted in full in the Arkansas Trust Institutions Act. Act 940 applies, not only 10 trusts and trust relationships created or entered into after its effective date: it applies to decisions or actions made or taken by trustees of existing trusts after its effective date.

Bank authority to sell insurance through路 out its home state and nationwide from branches in places of less than 5,000 people, subject 10 certain restrictions on the location of application processing, COIllmission payment and record keeping operations. The Comptroller allowed sales activities of bank agencies to take place outside the places of less than 5,000 people to the same extent that non-bank agencies may engage in sales activities outside the location listed on their license as their office. The Comptroller also permitted marketing of insurance by telephone and over the Internet.

Acts 900 and 1004 of 1997 clarify the range of possible insurance sales by banks in Arkansas. tn particular, a loan officer cannot sell insurance while he or she is making a loan (except credit life) and cannot use the customer's non-public information as a starting point to size up prospects.

While neither state nor federal law removes the under-5,OOO restriction for sales activities, Act 1004 recognizes the Barnefl decision and the First Union National Bank grant and deletes the restrictions which would have required all the activities related to the sales to take place in thaI size, or smaller, towns.

BANK INSURANCE SALES Historically, banking laws have given banks some limited authority to sell insurance themselves on their premises, but the additional restrictions in insurance licensing laws have made that authority difficult to exercise. Banks specifically have 1101 been able to obtain licenses to sell insurance (other than to sell credit life and similar coverage).

This tension between the banking industry and insurance agents has produced protracted litigation, including two cases recently decided by thc United States Supreme Court. The Court's decision in the VALle case holds that fixed and variable annuity products are not insurance products, when sold by national banks, and, hence, may be sold at any bank location. The Barnell decision announced that state insurance laws (which would include Arkansas and those of many Slates) could not unduly restricI a national bank's ability 10 sell insurance in places of less than 5,000 people.

In November 1996, the Comptroller of the Currency granted First Union National

TURN AND FACE THE CHANGE Like the Arkansas Banking Code of 1997, while sweeping, these changes are still more evolutionary than revolutionary, and hardly represent the culmination of the process. There will be yet more changes in the dual banking system and sources of regulation, as well as some form of relaxation of the traditional Glass-Steagall Act separation of commercial banking and investment banking, changes which will make the law and practice of banking a source of continuing interest. .:.

CHRIS BARRIER and JOHN SELIG are members of rhe Little Rock*!Jased firm of Mirchell.

Williams. Selig. Gares & Woodyard, PLLC. Barrier has sen'ed as chair of rhe Arkallsas Bar Associarion s Fillancial Insriwrions Law Secrion and also irs predecessor. the Banking Law Commilfee.

Selig served Oil the Gaven/or's Task Force to Revise ,he Banking Laws, chairing its Bank Powers Committee.

Endnoles: I. NarionsBank of North Carolina. NA. v.

Variable Af/Nuit)' Life If/s. Co., 5 J 3 U.S. 251.

130 L. Ed. 2d 740 (1995).

2. Bamen Bank of Marion Coumy I'. Nelsoll.

517 U.S. _,134 L. Ed. 2d 237 (1996).

1',11 1997 nr ,lrkmas I,aw!rr Il

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BEFORE CENTRAL HIGH...

BREWER V. HOXIE SCHOOL DISTRICT

by Mort Gitelman and Bill Penix

I

n the fall of 1997. the fortieth anniversary of the integration of

Central High School in Little Rock continued to focus world anention

on that episode in Arkans<1S history.

A photograph of the "Little Rock inc" appeared on the cover of Newsweek

"What was so unusual in the Hoxie

magazine and President Clinton attended a ceremony marking the anniversary.

case was that the plain-

Although the whole world recognizes the Central High integration episode, few peo-

tiff was the school board

ple know about the first case in Arkansas

which dealt with school desegregation.

That case, Brewer v. /-Ioxie School District,

of Hoxie School District

was one of the first federal cases in the

and the defendants were

period following the

.S. Supreme Court

handing down the mandate in the case of

Brown v. Board of Education. The /-Ioxie case was so unusual that the decision was

noted in both the Yale and Harvard Law Reviews, with the Eighth Circuit decision featured in a leading casebook on Constitutional Law. What made the case unusual was that the plaintiff was the

school board of Hoxie chool District and the defendants were an array of segregationist organizations, including the White

Citizens Council of Arkansas and White America. Inc., and a number of prominent segregation activists including Amis

an array of segregationist organizations, including the White Citizens Council of Arkansas and White America, Inc., and a number of prominent

Guthridge, "Justice Jim" Johnson, and Curt Copeland. The plaintiffs sued in fed-

segregation activists

eral court for an injunction to prevent the defendants from interfering with the

including Amis

peaceful desegregation of the Hoxie schools.

Bill Penix of Jonesboro, along with his late father and his late wife were the attorneys in that case. Bill Penix, now retired. recalls the litigation: "The superintendent and the five board members of the Hoxie

Guthridge, 'Justice Jim' Johnson, and Curt Copeland."

tricts to proceed with desegregation with

all deliberate spced.

"The Hoxie School Board concluded that the time was at hand for such action at

apparent that the situation at Hoxie was getting Oul of hand as segregationists from all over the south came to Hoxie. There

were threats, serious hostilities, and every

problem to be imagined. The Hoxie schools closed.

"The Hoxie board decided to seek legal assistance. I agreed (0 meet with them at a board member's home and agreed that my two partners (my father and my wife) would take part in the case along with attorneys James Sloan of Walnut Ridge and Edwin Dunaway of Little Rock.

"An early setback came as a resull of a long telephone conversation with Thurgood Marshall and several of his associates in the N.A.A.C.P. who were

knowledgeable in the area of law applicable to the Hoxie situation. We were told we must first find one or more black par-

ents to bring the suit on behalf of their child. and that we should solicit such plaintiffs. However. the Hoxie School Board and we, as its attorneys, unanimously agreed that we would make no effort to pursue such a strategy.

"Our position was that if the Federal couns could order Hoxie to cease having a racially segregated school system, then our government had a legal duty to support Hoxie officials in carrying out their federal duties.

"The complaint was filed in the federal district court in Little Rock on October 13, 1955. and was assigned to Judge Thomas C. Trimble. He issued a temporary restraining order the next day and set a hearing on the motion for preliminary

School Districi were aware of the two

decisions of the Supreme Court of the United States in Browll v. Board of Educatiou. rendered in May 1954 and May 1955. The latter decision told the dis-

be observed.) A period of 18 days passed without a suggestion of trouble. Suddenly. a nationally circulated magazine appeared featuring photographs of black and white children in class and at play. It \Va soon

Hoxie [there were about 1,000 white studems and 25 black students in the Hoxie schools]. Consequently, classes were

injunction for October 20. On the 20th, defendant Guthridge, represented by M. V. Moody and W. H. Gregory of Little Rock,

desegregated June 7,1955. (In those days the schools in Hoxie began in early sum-

filed a motion to dismiss the complaint alleging it failed to state a cause of action and that the court did not have jurisdiction.

mer so that a recess for fall harvest could

Briefs were filed and, quickly, Judge

Trimble filed an opinion on October 31 overruling the motion to dismiss. In his opinion on the motion, reported at 135 F. Supp. 296 (1955), Judge Trimble reiterated the essence of the complaint: '[T]he defendants by threats and efforts to intimidate the Board of Directors, by the circulation of propaganda literature and by intlammarory speeches. as well as by trespassing upon school property under jurisdiction of the plaintiffs. and by threatening to set up a picket line to obstruct ingress of children to the school, and by attempting

Hoxie, and that the segregationist agitators disavowed violence, yet the utterances disclosed by the evidence showed that the words used, and the very nature of the speeches, would have and did have the

Law Journal by Professor Wesley Newcomb Hohfeld [23 Yale LJ. 16 (1913) and 26 Yale LJ. 710 (1917)]. She had been interested in Dr. Hohfeld and his scheme of jural opposites/jural relations

effect to not only encourage violence but to intimidate those who were charged with the responsibility of integrating the races.

Judge Reeves also stated as a conclusion of law Ihal the defendants were conspirators and the acts of each conspirator were

with jural correlatives. Her argument was that if Hoxie's officials had a legal duty 10 desegregate then they had Hohfeld's correlative right to be protected

by Ihe federal courts.

"It was scary to read in the Yale Law

binding upon all the others.

"The defendants appealed the ruling

Journal of April 1956 [while the appeal was pending] that "...since the Hoxie

to persuade children's parents to withdraw them from the schools, are endeavoring to

aim ost immediateIy, and the case drew some national

hinder, obstruct and defeat plaintiffs attempt to comply with federal law with regard to the operation of the school.'

attention. For appellate purposes, the plaintiffs' legal

"Accepting the allegations of the com-

central theory to the appel-

plaint as true, Judge Trimble went on to

lants argumenl of lack of jurisdiction, the basic con-

note that: 'The case so presented is almost the exact opposite of cases that have been considered by both state and federal courts in the nation. Other courts have had under consideration the question whether or not Boards of Directors can be compelled to open their schools to Negro children where they are prohibited by state law to attend such schools. Here, however, the complaint alleges that the Board of Directors have determined that the schools should be opened to egro pupils, but that the defendants are undertaking 10 prevent them from doing so.'

Then, in overruling

the motion to dismiss, the judge stated: 'I shall not disclose what my own personal feelings are WiOl respect to whether or not

it would be wise or desirable that segregation of the races in the public schools of this state be enforced as provided by state laws that have been effective since 1875; however, it must be stated that there are now no valid segregation laws of the State

of Arkansas, for they have, in effect, been declared unconstitutional and void by the Supreme Court.' The case was then

assigned to Judge Albert L. Reeves for trial. W.H. Gregory dropped out as defense counsel and Jim Johnson stepped in as both a defendant and attorney, along with M. V. Moody. On January 9, 1956, Judge Reeves made the preliminary injunction permanent; his decision is

reported at 137 F. Supp. 364 (1956).

Judge Reeves made specific findings of fact, including that the order of the school board to integrate the schools was acceptable and agreeable to an overwhelming majority of the patrons and residents of

;;;:;::;:=:::::;;;;;;:::;:;:;;;;;;~;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;~

team decided to use as ils

cept of legal rights and

1I1i~~~

duties."

As Bill Penix recalls: "My wife and partner, Marian,

while

she

University

was of

at

the

Arkansas

School of Law, had become acquainted with two articles in the Yole

see "Hoxie" page 18

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"Hoxie" School Board rather lhan a sludent sued for injunction, the District Court's holding that it had jurisdiclion is questionable.

The same result may be oblained as long as a suit is initially broughl on behalf of an aggrieved student.

Comment. Legal Sanctions to Enforce Desegregation in the Public Schools: The COll1empt Power and Ihe CiI'il Righls ACls. 65 Yale L.J. 630.

637, n. 27 (1956). The Anomey General of Georgia filed an amicus brief in support of the segregationists. and the Department of Justice filed an amicus brief in support of the Hoxie school directors.

"On OClober 25. 1956. the .S. Court of Appeals for the Eighth Circuit affinned our district court victory. The court held thaI Dr. Hohfeld's jural relations were lhe law: 'The existence of a conslitulional duty presupposes a correlalive constitutional right in the person for whol11 the dUly is to be exercised.' [238 F.2d 91. 1001 The court also held lhat lhe school board stood in loco parell1;s with the students, and could represent Ihe students' interest in desegregaled schools.

The Hoxie case was the subject of a casenOle in 70 Harv. L. Rev. 1299 (1957).

On lhe issue of whelher the school board could seek injunctive relief. Ihe note writer concluded: "If relief cannot constitutionally be granted to a school board ... a school district which is ordered to desegregate is entitled 10 greater federal protection than one which voluntarily desegregates, since a federal coul1 may vindicate its authority by reslraining privat.e individuals from inlerfering with school officials who are endeavoring 10 comply with a

judicial decree."

Virtually every school desegregation case in lhe federal reporls since 1954 has had students as plaintiffs 'md the school, or the districl, or lhe state as defendants. The Hoxie case stands as a fascinating monument to creative lawyering in crafting and applying constitulional theory. In a leading constitutional law casebook in the 1960·s. by Professors Freund. Sutherland.

Howe and Brown (all of Harvard Law School). the Eighlh Circuit opinion in the Hoxie case is the only non-U.S. Supreme Court opinion in the enlire book.

If lhe lesson of the Hoxie case had been taken to heart by Arkansas politicians in 1957. the Cenlral High School episode might never have happened. And instead of celebraling lhe fortieth anniversary of inlegralion at Central High, we would be celebrating lhe forty-second anniversary of integnuion in the Hoxie schools.·:·

Congratulations to the New Members of the Arkansas Bar Association Who Recently Passed the Bar Exam!

George A. Anaya

Marcus A. Davis

Elizabeth A. Andreoli

Deborah S. Denton

Michelle L. Baker

Grant C. lXProw

Jonathan W Beach

Michelle H. Dill.rd

Kevin G. Beckham

Jennifer c. Donaldson

Katherine E. Blackmon can C. Bles

Amy M. Driver

Stephanie D. Bohanan

P.ul A. Efurd

Glenn E. Borkowslci

Stephen G. Fallon

Shannon L. Boy

Shannon L. Fant

Mich.e1 W. Boyd

Fara Elizabeth Faubus

Robert Dale Brandon

David C. Ferguson

Warmond M. Brown

Leslie Plowman Fisken

Stephen T. Brown III

Mort Citelmcw is a law professor CI1 the Ullivers;ty of Arkallsos School af Law olld Bill Penix lias retired /i'om the practice of law after 40 years.

Sherry D. Burnett

Ch.rI",

th T. Ford

Bruce K. Burton

Andrew V. Francis

David Roy c',nnon

John K. Fulweiler

joel E. C.pe

Buck C. Gibson

David R. Cason

Todd A. Gibson

NOTICE

Stuart Arnold Cearley

Eddie Mac Golden

The Local Rules for the Eastern and Western pistricts of Arkansas have

Adam J. Chandler

Tonia S. Goolsby

Courtney M. Cheney

Stephanie D. Gordon

Thomas B. Chilton

Connie L. Grace

recently been amended and renumbered.

Most amendments were limited to technical changes such as new telephone numbers or addresses. Copies of the new amended Local Rules are available in the Clerk's Office (hardcopy or diskette) and an electronic version has been added to OUT web site - www.are.uscourts.gov.

Jennifer B. Compton

D.vid C. G<>bam, j'-

C. Thomas Corbin

James F. Gramling, Jr.

joseph C. Cunninglum

William L. Griggs, IV

Amy unningham

G,ny Gunderman

<Jwia ~in D.idm,j,

Mae E. Haney

DAILY, WEST, CORE, COFFMAN & CANFIELD P.L.L.C. announces that the name of the law firm has been returned to daily & woods which was the name of the law firm between its founding in 1919

by Harry P. Daily and John P. Woods and 1970, when it became Daily, West, Core & Coffman It is now AProfessional limited liability Company The Law Firm Continues to Practice Law from Offices Located at 623 Garrison Avenue, Suite 600, Fort Smith, Artlansas 72901 Telephone: (501) 782·0361 Facsimile: (501) 782·6160 The Principals of the firm are: Ben Core Wyman R. Wade, Jr. Jerry L. Canfield Stanley A. Leasure Thomas A. Dally Douglas M. Carson Robert W. Bishop Associate: Todd P. Lewis Of Counsel: James E. West IS U,

\r~mlll.l~!,r

fill 1!Ii

. Floyd

Dennis R. Hansen

William C. Plouffe, Jr.

Charles S. Harmon

Edward L. Quinn, Jr.

Jason M. Hatfield

Jennifer A. Rabbe

Cymhia L. Hawkins

Laura C. Ranalli

Philip J. Hayes

Helene N. Rayder

Christopher W. Hays

joseph D. Reece

Jennifer B. Hendren

john C. Riedel

Jason B. Hendren

Sherri Lynn Robinson

Counney Rae Henry

leI[ Rolfe, IV

Mark M. Henry

Richard N. Rosen

Michael K. Herring

Michael E. Sanders

Leslie H. Herrington

Jay Scholcens

Avalon Gayle He"e1

John M. Scon

Curtis W Hin

Stacey L. Seanor

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Jennifer R. Hodges

J.

Hudson Shepard, J"

Michael Scott Hodson

Jeffrey G. Sikes

Diane S. Holitik

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Jeb Hunter Joyce

David W. Sterling

Roy Berh Kelley

Michael D.R. Stevens

joe Harvey Kimmel, III

Jan William Sturner

Ellen Faubus Kreth

Den David Swindle

Jeremy K. Landon

John P. Talbor

William F. Lang, rv

limothy M. Tallach

Elizabeth S. Langston

Camille Steadman

Tom J. Laub

Thompson

Michael A. Lilly

Raben EThompoon, III

Pamela M. Long

Cody D. Thompson

John D. Maddox, II

Stephen M. Trail

Jacqueline w. Major

Christopher L. Travis

Manzer J. Mansour

Casey Rae Tucker

Sara Lynne Marshall

Daniel O. Turner

Winston C. Mathis

Andy Lee Turner

Nancy L. Mathis

Jason H. Wales

Kristi Ann Mattes

David A. Washnock

Melanie J. McClure

limon Jeremy Watson

Patrick C. McDaniel

Rosalyn A. Warts

Mary Efu.beth MeFadyen

Elisa M. White

Supreme Court of Arkansas Modifies Child Support Guidelines n a per curiam opinion delivered September 25, 1997, the Supreme Court of Arkansas issued Administralive Order Number 10 which contains revisions to the child suppor! guidelines. The effective date of this Administrative Order is October I, 1997.

The following are some of Ihe substantive changes in these new child support guidelines: • The Arkansas Family Support Chairt, both weekly and monthly, has been changed as to the chart amounts.

The percentages indicating when the payor's income exceeds Ihe chari have been revised. ·The Affidavit of Financial Means has been abbreviated somewhat.

One of the new provisions inl.he guidelines concerns the awarding of support based on imputed income. "If a payor is unemployed or working below full earn-

I

JOHN

T.

BATES,

ing capacity, Ihe courl may consider the reasons therefor. If earnings are reduced as a mailer of choice and nol for reasonable cause, rhe COurl may anribut e income 10 a payor up to his or her earning capacity, including considenuion of the payor's Iife-slyle. Lncome of al least minimum wage shall be attributed to a payor ordered to pay child support."

Other changes in the child support guidelines modify Ihe written findings when Ihe court deviales from the chart amount, the definilion of income, and allocation of dependents for lax purposes.•:.

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VOCALS 1982-1997: JOINT VENTURE FOR JUSTICE

by Jean Carter and Mary Henry ';Dear Fellow A!torney: We are writing to request your participation ill all organization which is the firsl of its kind:' Thus began the letter dated September 1982 which was mailed to attorneys throughout Pulaski Coumy. The letter went on 10 ask the attorneys to join "VOCALS," Volunteers Organizalion for

bono organization to replace the small pro bono panel of referral attorneys which had operated at CALS since 1977. Attorneys were asked to join VOCALS and agree to either accept up to three pro bono cases a year or contribute annual dues to help fund the program. A special emphasis on legal help to the low income elderly was also an Central Arkansas Legal Services, a joint important component of the program from venture of the Pulaski County Bar the beginning.

Associmion and Central Arkansas Legal At a Capitol Rotunda press conference Services (CALS). just six months after the original recruitThe leiter was signed by W. Russell ment letter, the VOCALS program was Meeks, President of the 1982 Pulaski trumpeting its 300th member: thenCounty Bar Association, along with the Governor Bill Clinton. By April of 1984, three hundred and fifty (350) Pulaski County attorneys belonged to VOCALS, and more than one thousand (1,000) cases had been completed, with $22,000 raised.

And VOCALS had one of the best pro bmw programs in the country. In 1985, the Pulaski County Bar Association was recognized for its effort by the American Bar Association and the Narional Legal Aid and Defenders Association for the "outstanding leadership and support" given the VOCALS Program and was pre/983 Sfflf~ proclnmntion acknowledging VOC.ALS 300lb sented with the Harrison Tweed Award. mnnber, COl/emor Bill Climon. From /¢: LeglllSeroicrJ Much has changed in the past fifteen Board President, Km Gould. VOC4.LS Board members, years. Central Arkansas Legal Services Russ Muks andJane Dickey. Gov. Climon, VOOILS Board merged with Legal Services of Arkansas in members. Mark Lmer and \f/mdell Griffin.

1995 and is now the Center for Arkansas Legal Services. The VOCALS name is VOCALS Board or Directors which shared with the pro bono programs in the included: M. Jane Dickey, Milas H. Hale, other 31 counties served by the Center.

Phillip Carroll, Wendell L. Griffen, Byron Don Hollingsworth, who was so important L. Freeland, Markham Lester and Kaye S. in the fonnation and administration of the Oberlag (McCleod). The VOCALS pro- program, is now the Executive Director of ject was the result of months of hard work the Arkansas Bar Association. by this board and the bar comminces that Fortunately, his commitment is shared by were fonned to address the crisis in feder- the current VOCALS Executive Director, al funding of legal services.

Jean Turner Carter. The current Board of Fifteen years ago, Central Arkansas DireclOrs for VOCALS is: Frank Sewall, Legal Services was facing a $200,000 cut Richard Donovan, Laura Wiltshire, Ed in federal funding from the previous year. Dillon, Win Drummond, Troy Price, Arkie Layoffs had occurred, and staff attorneys Byrd, Audrey Evans, Jeanne Seewald, Carolyn Witherspoon and William M. were only available for emergency cases.

The Pulaski County bar rallied to the Griffin.

Year after year VOCALS has surpassed cause and organized VOCALS as a pro

iO

n, \r~milll.l~l,r rill

1!9i

the goals set by the board both in membership numbers and dues comributed to the program. In 1996-97, over $117,000 was contributed and there are now 785 VOCALS members. The value of the pro bOllo representation to low income people in Pulaski County was placed at over $640.000 last year.

On this fifteenth anniversary. the vision and the wisdom of those first bar committee members and the tremendous hard work of the original VOCALS Board Members is appreciated and remembered.·:· .leall Carrer is lite Execlllive DireclOr alld Mary Henry is the Volunteer Services Coordinator of the Cell1er [or Arkansas Legal Services (VOCALS).

c../t lisa f?T

horne

{f orke Attomey at Law .:.AppeUate advocacy ·:·Legal research ·:·General practice 125 East Township. Suite 3 Fayetteville. Arkansas 72703 (501) 443-2249 Facsimile (501) 443-8016 E-mail alc@iso.net

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HOW THE PUBLIC VIEWS FEMALE AND BLACK ATTORNEYS

by Justice Robert L. Brown & Sheila Campbell

Introductiotl

by JI/stice Robert L. Browll Abo/ll two years ago. Sheila Campbell

Gild I met as co-chairs ofthe Comm;uee all Opportunities for Women and MinoriTies 10 discuss projects for Ihe year.

II was

Sheila's idea 10 condllct a public opinion poll all how women and Africal/-American attorneys are viewed by tile public at large.

Does bias exist? If so. wllm form does it rake? And who are 1110S1 likely lO exhibit prejudice against oflomeys wllo are I/O!

while males.

We illi/iolly rail ;1110 a s11ag because of Ihe absence of any [lIl1ding source for the project. It was 01 1hOl paim {hat Sandra Moll stepped ill alld sllggested that Professor DOl/glas Bllffalo at the Ullh'ersity of Arkansas at Liffle Rock be comocted aboUl doing a slilTey as a dass assignmel11. The idea has borne/ruff. The Arkansas Bar Association made its telephone bank available, and ,he statewide poll was done at minimal e.\JJense in all 75 cOIt11fies with 548 responde11fs.

Wllat follows is Professor Buffalo路s descriptioll of IIis metllodology aud IIis oualysis of tile poll results. Tile first part of tile poll deals witll perceptiolls of male and female attOT!U!)'S and the second wi,h white and black attorneys.

Not surprisingly. the public in the past lias tilred decidedly ill fmw of",IIite males when hiring an ollorney. Nel'ertheless, when asked the gender of the attorney they would hire in certain areas ill the fwure, male andfemale respondews both opted in fOl'or of women as counsel for dil'orce/child custody mailers, sexual harassmew cases. and discrimination law

.... Ut Irlmal La'rtf

Fall Illi

suits. In another area examined. most respondews, who believell there was a preference. thought mole attorneys were taken more seriously by juries thall female a11orl1eys. Howe\'er. the \'ast majority of respollde11fs said thOl judges did not exhibit prejudice in fal'or of a110meys based 011 gender.

Perhaps the most i11friglting re\'elmion frOlll tile geuder pall is tllar tile public views male a110meys os being more likely to ol'ercharge ond do unnecessary work. bllt yet people are still IIIore likely to select mole counsel than female counsel in most areas. The public also sees female 0110rlIeys as horder workers and more solicitous of their cliews but nonetheless most people leon toward male counsel. Why? The allswer is IIl1clew: One suggested explanation is that people are more willing to be o\'ercharged by an eswblished male of/oriley who has experience ill the particular area of the law than a less seasolled female lawyer.

With respect to race. the poll evidenced a decided perceptiou by AfricauAmericans that juries are skewed against them. Whites. 011 the other hand, tended to respond that both white and black allorlIeys were treated in most respects the same by juries alld thm discrimination against black allorneys did II0t exist.

Pollsters reported to Professor Buffalo that both blacks and whites were to/comfortable answering questiolls all race, and rhat white responde11fs did liar wow to be perceh'ed as biased. Judges agoill were viewed more likely tholl juries to befair to black aflorneys.

The Views & Methodology: A sample of 548 lelephone subscribers was drawn from Arkansas' seventy-five counties. The sample was stratified by congressional district so Ihal each congressional district was equally represented.

The random digil dialing mel hod was used

to include all potential numbers inlo the sample. To ensure thai a pattern would not develop, the Waksberg Method was used.

This method selects numbers with legitimate prefixes and adds a random numeral [0

the end of each number that is chosen.

and allows unlisted numbers (0 be incorporated into the sample.

Calls were made by sociology students at the University of Arkansas at Linle Rock between 6:00 p.m. and 9:00 p.m.

Monday Ihrough Saturday starting on April 17 and ending on March 8, 1997.

Students were under the direction of Dr. M.D. Buffalo.

John Knox, a Roberl McNair Scholar, developed lhe initial questionnaire in the summer of 1996. This instrument was lested on approximalely 150 Arkansans.

In addition, in the Spring of 1997. the sociology research class at Ihe University of Arkansas at Little Rock further pretested and refined the questionnaire.

Two issues need to be addressed prior (0

presentation of the survey. While con-

ducting the pretest. at least one unresolved problem was encountered. Respondents indicated significant discomforl with issues of race. This uneasiness was expressed by both black and while respondents and Lhis discomfort continued into the final survey. Among whites the concern was mosl often expressed as a fear of

being perceived as racist. While blacks almost never expressed concern of being perceived as a racist, they often expressed curiosity about the survey and its uses as it relates to race. No similar sensitivity was expressed regarding gender issues.

Related to the concern regarding racial issues is the issue of Usocially desirable responses."

A "socially desirable response" occurs when the respondent alters his or her answers so as to be consistent with what is believed to be the interviewer's opinion. It is often difficult to detennine whether the answers were actually the respondent's opinions or socially desirable responses. Our analysis of a set of polls conducted by CBS and the New York Times (1994) regarding issues related to the OJ. Simpson trial pointed to similar problems.

While respondents often exhibited extreme uneasiness regarding racial issues in the Arkansas Bar Association Sample, no evidence of socially desirable responses was found (based on the race of the interviewer).

GENDER Knowledge and se of Lawyers Most respondents (58.6%) had retained a lawyer at some time in their life. The pattern was not different for men (59.7%) than for women (58.4%).

Have you ever retained a lawyer?

Respondents Yes No 58.6 41.4 Male Respondents No Yes 59.7 40.3 Female Respondents Yes No 58.4 41.6

Total 548

Total 216

Gender of the Lawyer Male Female Both Total Lawyer retained for: Wills/Inheritance Malpractice Divorce/Child Custody Car AccidentfTraffic Business/Corporation Criminal Other

87.3 81.8 79.5 91.5 79.6 95.7 78.4

7.3 18.2 12.5 8.5 14.3 4.3 17.0

55 8.0 6.1 4.5

55 11 88 47 49 23 88

Male Respondent Male Female Both Total Lawyer used for: Wills/Inheritance Malpractice Divorce/Child Custody Car AccidentfTraffic Business/Corporation Criminal Other

688 18.8 889 11.1 74.2 12.9 90.0 10.0 83.3 8.3 100.0 74.4 20.5

125 12.9 8.3 5.1

16 9 31 20 24 13 39

Female Respondenl Male FemaleBoth Total Lawyer retained for: Wills/Inheritance Malpractice Divorce/Child Custody Car AccidentfTraffic Business/Corporation Criminal Other

94.9 50.5 82.5 92.3 76.0 90.0 81.6

2.6 50.5 12.3 7.7 20.2 10.0 14.3

2.6 5.3 4.0 4.1

39 s 2n 57n 26 n 25 n 10 n 49 n

s: SlgnlhCant difference In the two groups n: not enough cases to generalize

Do you know a lawyer personally?

Respondents No Total Yes 520 65.0 350 Male Respondents Yes 69.3 Female Respondents Yes 61.7

No 30.7

Total 202

No 38.3

Total 313 NSD

NSD: not a sign~icant difference between the two groups

Total 327 NSD

N$D: not a significant difference between the two groups

Survey respondents indicated that they had employed men much more frequently than women for every legal specialty that was mentioned. With only one exception, no difference was found between men and women regarding their pattern of preference for male attorneys in past legal cases.

The only exception was that men were slightly more likely than women lO have retained women for legal work involving wills and inheritance.

Almost two oul of three Arkansans surveyed indicated that they knew an attorney personally. This figure was the same for both men and women. Slightly over one in six only knew a male attorney and one in ten knew only a female lawyer. More than one in four knew attorneys of both sexes.

Combining those that knew both male and female attorneys, almost 90% of the respondents knew a male attorney, while slightly less than 25% knew a female attorney. Women were more likely to know a male attorney than a female attorney-the same pattern found among male respondents.

Respondents Male Female Both Total What is the gender of the lawyer you know personally?

61.5

10.3

28.2

340

Male Respondent Male Female Both Total What is the gender of the lawyer you know personally?

62.0

8.5

29.6

142

Female Respondent Male Female Both Total What is the gender of the lawyer you know personally?

61.7

10.9

27.5 193 n

N: nol a significant dltlerence between the two groups

A very different picture emerges when we compare the gender of the attorney that respondents have used for prior legal services and the gender of the attorney that they say they would use if they had a legal problem. A majority said that they would use a female attorney for issues involving divorce and child custody, sexual harassment, and if accused of sexual discrimination. A majority indicated that they would use women attorneys for problems of discrimination. Generally, respondents said that they would choose female attorneys for problems generally associated Wilh "women's issues."

A majority of respondents said they would chose a male attorney for car/traffic accidents. A majority also said they would use male anorneys for wills and inheritance, malpractice. and setting up a business. Except in the case of sexual discrimination, at least one in five said lhal the gender of the attorney did not maner ("Both").

Gender of the Lawyer Male FemaleBoth Total Which lawyer would you hire with a legal problem involving...

Wills/Inheritance Malpractice Divorce/Child Custody Car AccidentfTraffic Setting up a Business Sexual Harassment

45.1 45.5 266 52.2 49.6 21.1

25.9 27.7 53.3 17.4 19.8 62.6

29.1 26.8 20.2 30.4 30.6 16.4

526 519 531 529 530 532

see "Attorneys" I>age 24

rall199i 1'hr ,\rklnm La\\)rr

t~

Male FemaleBoth Tolal

"Attorneys" Gender of the Lawyer Male Female Both Total Which lawyer would you hire with a legal problem involving...

Discrimination 31.7 Accused of Racial Discrimination 37.t Accused 01 Sexual Discrimination 29.8

Does the gender at the lawyer matter to the judge?

Ves 30.8

Which lawyer is taken more seriously by 45.2

35.1 27.8 518 50.2 20.0 530

10.1 44.8 236

Male Respondents Male FemaleBoth Total

44.7 23.5 523 Which lawyer is taken more seriously by

Which lawyer is taken more seriously by

responses significantly differ. In all three

juries?

Male Respondents Ves 27.2 Female Respondents Ves 32.7

51.0

say that they would choose lawyers of their

50: sigMicant tilletence in the two groups

Male Respondents Male FemaleBoth TOlal Which lawyer would you hire with a legal problem

involving...

26.2 52.2 1104 t4.1 61.8 34.8 30.4 50.9

23.8 16.7 27.0 28.2 14.2 24.2 26.6 17.9

206 209 211 213 212 207 207 212

Female Respondents Male FemaleBoth TOlal Which lawyer would you hire with a legal problem involving...

Malpractice Divorce/ChikJ Custody Car AccidentlTraffic Setting up a Business Sexual Harassment Discrimination Accused of Racial Dis. Accused of Sexual Dis.

42.2 23.3 45.4 43.3 18.7 25.2 33.0 28.8

29.2 53.9 21.6 24.0 63.2 5104 37.9 49.5

28.6 22.7 33.0 32.7 18.1 23.3 29. t 21.7

308n 317n 315s 312s 315n 313s 306n 303n

s. 5olgl"llflcana difference Il'l the two groups n: not enough cases 10 generaize

Fairness in the Law Profession Over four in ten respondents indicated that men are taken more seriously by juries than women. One in ten expressed the belief that women are taken more seriously than men. A significant percent (44.8%) noted that there was no difference between men and women as perceived by juries.

Women were marc likely than men to say that men were taken more seriously by juries.

No 67.3

gender being taken more seriously by juries than the other:

Percent Male

Female

75

24

13

33

9

t8

Societal Views/Dominent Gender Compelency!

Education 01 Gender Personal Perception!

Experience of Respondent Identifying with One's Own Gender Other Total (N)

1 2 100 t7t

6 18 '100 33

'total may no! add 10 100 due to rounding

Respondents were further asked if they thought that the judge was innuenced by the gender of the anomey. Respondents

were more likely to indicate thc judge was not inlluenced than to indicate the jury was uninnuenced by the gender of the auomey.

Over two OUI of Ihree responded that the

gender of the attorneys did not mailer to the judge. Male and fcmale respondents were no differclll on this issue.

If jUdge is male - Who has advantage?

Respondents Male Female Totai 79.6 2004 137

Survey responses as to why Arkansans believe that males have an advantage with a male judge are lisled below. based on the

sex of the respondent. The reasons were Male Respondents Male Female 65.3 34.7

not particularly enlightening and for the Total 49

most part simply noted the dominance of men in society and the workplace.

To the judges, justices, and 10 all friends

month, and year after year. It was a grueling

finger of your hand and still have fmgers left

and family mentbers assembled here for this

pace. at times exhausting, and it is matched by only one other supreme court in the nation. I am proud to have been associated with a court with such an outstanding work ethic and dcdication to duty. I know thal my tenure on that court will indeed serve me in good stead on

over. I cried many tears during my first few months as an Arkansan, and not the least of those tears were for

historic occasion--today we witness the Arkansas Court of Appeals assume a full complemenl of Iwelve judges--judges who will

enable this court to better serve the bar and the citizenry by promptly resolving the cases which are presented to us. I am indeed proud to be a part of this new era for the court of appeals.

As I listened to the words today of my fel-

Reasons given for one

If Judge is male, Who has advantage?

Female Respondents Male Female Total 88.4 11.6 86 NSD

Reasons why one gender has an advantage over another gender when the jUdge Is male.

Percent Male Female Societal Views/Dominent Gender 52 30 Competency!

Education of Gender 7 0 Personal Perceplion!

Experience of Respondent 4 10 Identifying with One's

see "Attorneys" page 26

!RJmarkยง OfJudge Jlndree Layton '.RJJafi Jlr/(ansas Court ofJlppeafs Swearing-In Ceremony) January 7) 1997

7.4 41.7 312s

Arkansans who claimed that one sex or the other was favored by juries were asked to explain their answers. The majority (75%) of those who said that men are taken more seriously used phrases such as: "it's a man's world: men are considered the dominant gender; society views men as more serious than women. etc." Those that said that women are taken more seriously noted that women were bettcr educated and more competent.

the judge were asked who they thought had

an advantage if the judge was malc.

Almost eight in ten said that malcs have an advantage.

NSD: nol a SIgnificant difference between the two groups

Respondents who indicated their belief that the gender of the lawyer mauered to

own sex.

Discrimination

Total 195

14.3 49.5 210

Female Respondents Male FemaleBoth Total

cases men were more likely than women to

Accused 01 Racial Dis. Accused of Sexual Dis.

No 72.8

Total 309 NSD N$O: not a Slgl"llficantlifference between the two groups

juries?

\Vhen the responses of men and women are compared we find that in three areas (car/traffic accidents. setting up a business. and discrimination) men and women's

50.0 31.1 61.6 57.7 24.t 41.1 43.0 31.1

Total 509

juries?

36.2

Malpractice Divorce/Child Custody Car AccidentITraffic Setting up a Business Sexual Harassment

No 69.2

the state of

affairs that I

the court of appeals in the months and years to

decision for our children, by returning to his home. I am sure that my experiences in tho e initial months provided the genesis of my desire to become a lawyer.

My history is also profoundly different

from that of the other two women who have been sworn in this week. For I remember all too well that when my husband and I were married in

come.

But, as I listcned to the remarks and the stories of the other new justice and judges, I

1963, my wedding announce-

ment was rejected as unsuit-

low appointees to the court, and to the remarks

could not help but think that there is some-

of the three new Arkansas Supreme Court

thing profoundly different about my history,

Justices just yesterday, I was struck by their many accomplishments, by the variety and breadth of their experiences, both legal and

and consequentty my appointment to the

per...my picture deemed

unfit to occupy even a page of newsprint beside

non-legal, and by lhe very personal stories that they related. But I was most touched to hear words of such humility and selnessness. from

court--something that sets me apart from all the Olhers whose swearing-in ceremonies we have witnessed this week.

For I thought back on when I first came to Arkansas with my husband in

those who have risen to the heights of power and prestige in this state and even the nation,

1969, to his home town of Pine Bluff. 10

here today wilh the other

live there and to raise our family there. I

judges is a testament to

as they pledged to faithfully carry out the responsibilities of this most high office. For it

recalled that in the initial weeks. I set

is indeed an awesome responsibility to deter-

musl be accomplished when changing

mine not only the fortunes and even the liber-

one's residence--obtaining a new driver's license. registering to vote, arranging for ut;lity services. As I visited the various city, county and other offices, to my horror and shock, the only people like me whom I

ty of the parties before us, but also of others 10 come. by the precedents that we set down.

And. as I have learned, it is not a job for the faint of heart or for one lacking in stamina.

Over the past two years as I served on the supreme court, there were times where I devoted nearly every waking hour, week after week, to the work of the court. AI first I could not believe il possible that the members of the

court could maintain such a fonnidable schcdule, to a great extent self-imposed, but they have done so, week after week, month after

able and unacceptable by the local Pine Bluff newspa-

the photographs of other local brides.

So, for me to stand

the progress

chosen home and in my chosen profession. And a I take my place as one of 12 judges--3 women, 3 AfricanAmericans--I also feel a deep

er!tountered had their hands finnly clasped ar und a broom or mop.

sense of humility, but I am very, very proud to serve on a court that so exemplifies true diversity--that indeed

For in 1969, there

were no African Americans in poSitions of responsibility in any of these offices. There was not even a secretary, not even a clerk, never mind judges, in the county courthouse.

we have

made and, I hope, will continue to make in my

about to do all those mundane tasks that

found in

includes us all.

Pine

Thank you.โ ข:.

Bluff

And in the whole of Arkansas, you could

with respect to the status of African Amcricans. My husband and

count the African-American attorneys on the

I questioned whether we had made the right

rill I!!) Til Ir'mil LI~W il

"Attorneys" Reasons why one gender has an advantage over another gender when the judge is male.

Own Gender 34 10 Other 1 30 Total "00 100 (N) 67 10

Reasons why one gender has an advantage over another gender when the jUdge is female.

Male Female Societal Views/Dominent Gender 60 17 Competencyl Education of Gender 15 o ·total may not add to 100 due [0 rounding Personal Perception!

Experience of Respondent 15 8 Those surveyed were also asked if Identifying with One's o 75 either altoflley had an advantage if Ihe Own Gender Other 10 o judge was female. Seven in ten indicated Total 100 100 that a female anorney had an advantage if IN) 20 48 the judge was also female. There was not a significant difference in the way men and women respondents answered this question.

If judge Is female-Who has an advantage?

Respondents Male Female Total 29.8 70.2 121 Male Respondents Male Female Total 25.6 77.4 38 Female Respondents Male Female Total 32.5 67.5 79 NSD NSD: not asignirlcant difference between the two groups

Respondents who said that a female attorney had an advantage if the judge was also female were asked to explain their answer. Responses are not enlightening.

Most of the women who responded said

Ihat a female judge would idenlify with someone of her own sex, Men said that it was a response to male domination.

Finally, respondenls were asked which lawyer (male or female) was judged more by appearance than abilities. Over six in ten said women were. Men and women

surveyed responded basically the same to this question. There was no difference in their responses.

significant

Male FemaleBoth Total Which lawyer is judged more by appearance than abilities?

15.9 62.7 21.4 528 Male Respondents Male FemaleBoth Total Which lawyer is judged more by appearance than abilities?

15.9

62.3 21.7 207

General Attitudes About Law)'ers Respondents were asked a series of questions designed to indicate general anitudes toward the profession and how these

altitudes differ by gender. The following is the summary of these findings: Women attorneys were more likely to be seen in a positive light while men were more likely to be seen in a negative light. A majority of respondents noted Lhat women: 1) work

harder; 2) keep clients well informed; 3) advocate legal reform; 4) become involved in community work and charities; 5) care more about the client Ihan winning; 6) pro-

vide free legal services to the poor; and 7) charge the client the least amount of money. Men on the other hand were more likely 10 be perceived as: I) doing unnecessary work to collect higher fees; 2) vio-

lating ethical rules; and 3) filing unnecessary lawsuits.

Gender of Lawyer Male FemaleBoth Total In your perception, which lawyer...

Works harder Keeps clients well informed Advocates legal reform Involved in community wort<lcharieties Does unnecessary work to collect fees

12.4 56.2 31.5 502 16.3 56.5 272 496 23.5 53.8 22.7 480 176 60.7 21.6 522 63.3

14.7 22.0 482

Female Respondents Male FemaleBoth Total Which lawyer is judged more by appearance than abilities?

16.1

62.7 21.2 316

see "Attorneys" page 27

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

Specialist in Industrial Machine Guarding and Safety.

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

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

• II Years President of company involved with repair and rewinding of ele~tric motors and the manufacture, sales, installation and servicing of electrical control panels for induslry.

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

• Registered Professional Engineer in 3 states.

• Curriculum vitae and references on request.

John E. McAliisler, 9 Sierra Lane, HOI Springs Village, AR 71909·3214 Phone: (501) 922·1709 Fax: (501) 922-4177 ~&

nllrlmlll.all)rr fall 199/

"Attorneys" Gender of Lawyer Male FemaleBoth Total In your perception, which lawyer.., Gives free legal services to the poor Is more likely to violate ethical rules Cares more about the client Files an unnecessary lawsuit Charges the least amount of money

In your perception, which lawyer.., Works harder Keeps clients well informed Advocates legal reform Involved in community wor1<lcharieties Does unnecessary work to collect fees Gives free legal services to the poor Is more likely to violate ethical rules Cares more about the client Files an unnecessary lawsuit Charges the least amount of money

17,2

58,9 23,9 511

70,9

5,4 23,7 481

11.0

61,9 27,1 501

63,3

14,0 22,7 480

15,0 55.4 29,6 500 Male Respondenls Male FemaleBoth Total

11.3

51,2 37.4 203

19,8 528 27.4 197 18.4 579 23.7 190 20,0

57,1 22,9 205

64.4

13,1 22,2 198

16.7 61.1 22.2 198 77.5

4,0 18,5 200

8,7

64,1 27,2 195

66,3

13,3 20.4 196

14,8 57,1 28,1

196

Female Respondents Male FemaleBoth Total In your perceplion, which lawyer.., Works harder Keeps clients well informed Advocates legal reform Involved in community worklcharieties Does unnecessary work to collect fees Gives free legal services to the poor Is more likely to violate ethical rules Cares more about the client Files an unnecessary lawsuit Charges the least amount of money

12.9

60,0 27,1 295n

13,9 26.7

59,2 26,9 294n 51.2 22,1 285n

16,0 628 21.2 312n 62,4

16,1 21.5 279n

17,5

57,8 24,7 308n

66,8

6,5 26.7 277s

Poll," June, 1994, Ann Arbor Michigan: ICPSR CBS/The New York Times, "CBS News/New York Times OJ, Simpson Poll #1," July, t994, Ann Arbor, Michigan: ICPSR, CBS/The ew York Times, "CBS News/New York Times OJ, Simpson Poll #2," July, 1994, Ann Arbor, Michigan: ICPSR,

RACE Knowledge and Use of Lawyers There was not a significant difference bel ween the percent of whites and blacks Ihat had retained an attorney, Slightly over half of both groups said Ihat they had retained an attorney.

Have you ever retained a lawyer?

Respondents Ves No 58,6 41.1 Black Respondents Ves No 48,6 51.4 White Respondents No Ves 59,0 41.0

14,2 23,8 281n

15,3 54.3 30,3 300n

s: significant dJHerence in the two groups n: not enough cases to generalize

References CBS/The New York Times, "CBS News/New York Times 0.1, Simpson

Total 454 NSD

Black Respondent Black White Both Total

o o o 41,7 42,9 60,0 50,0

100 100 75,0 58,3 57,1 40,0 50,0

25,0

2 3 4 12 7 5 10

White Respondent Black White Both Total Lawyer retained for: Wills/Inheritance Malpractice Divorce/Child Custody Car AccidenVfraffic Business/Corporation Criminal Other

8,2 14,3 2.4 8,3 2.7 14.3 5,8

5: signlicim difference In the two groups n: nol enough cases to generalize

Black Respondents Ves No 39,7 60.3 White Respondents Ves No 66,3 33.7

91,8 85.7 96,3 1.2 86,1 5.6 97,3 85.7 91.3 2,9

Tofal 73 Total 427 NSD

NSO: not asignificant difference between the two groups

Whi,e attorneys were more likely to be known by respondents Ihan black attorneys. However, it is clear from the table below that there is a significant difference between black and white respondents regarding the race of the attorney they know, Blacks are more likely to know a black attorney and whites are more likely

see "Attorneys" page 28

If the respondent indicated that s(he had retained an attorney, the race of the attorney was asked, The majority of attorneys retained by respondenls wete white, The sampling number of cases is too small to compare black responses to whites for statistical signifigance.

Lawyer used for: Wills/Inheritance Malpractice Divorce/Child Custody Car AccidenVfraffic Business/Corporation Criminal Other

Do you know a lawyer personally?

Respondents Ves No Total 65,0 35,0 520

Total 74

NSD: not asignificant difference between the two groups

12.6 60,6 26,8 302n 61.9

Total 548

Both respondenl groups were equally likely to know an attorney. Six in ten indicaled that they knew an attorney,

49n 7n 82n 36n 37n 21 n 69n

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"A ttorneys" to know a while anomey. Also of signifigance is that blacks are more likely than whiles to know anomeys of both races.

Respondents Black White Both Total What is the gender of the lawyer you know personally?

10.6

72.9

16.5 340

Black Respondent Black White Both Total What is the gender of the lawyer you know personally?

54.B

11.9 33.3

Race of the Lawyer Black White Both Total

42

White Respondent Black White Both Total What is the gender of the lawyer you know personally?

4.2

they would use a while anomey and Ihose who said thaI either race was acceptable.

Significant differences were found between black and white respondents in their responses. White responses were almost evenly splil bel ween indicaling white attorneys as a preference and indicating that either race was appropriate. Black respondents were more likely than white respondenls to say Ihat a black lawyer was their preference.

Compared to white respondents, black respondents were more likely to indicate an opposite race attorney as a preferen ceo

82.2 13.6 287s

s: a signilicanl difference between the two groups

Respondenls were also asked Iheir racial preference for anorneys based on type of legal service required. Responses were almosl evenly splil bel ween Ihose who said

Which lawyer would you hire with a legal problem involving...

Wills/Inheritance 45.1 Malpractice 45.5 Divorce/Child Custody 26.6 Car AcddenVTraffic 52.2 Setting up a Business 49.6 Sexual Harassment 21.1 Discrimination 25.2 Ace. 01 Racial Disc 31.1 Ace. of Sexual Disc 12.9

25.9 27.7 53.3 17.4 19.8 62.6 34.6 31.1 43.3

29.1 26.8 20.2 30.4 30.6 16.4 40.2 37.3 43.3

1I:l=lB

I PAUL D. MIXON, Ph.D, P.E.

~

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ELECTRICAL ENGINEERING CONSULTANT ELECTRICAL ACCIDENT INVESTIGATION • Reconstruction and Analysis. Property or Equipment Damage • Personal Injury or Death. Stray Voltage REGULATORY CONSULTING • Power Line Siting. EMF Expert. CogenerationiSelf-generation • Electric Utility Deregulation. Regulatory Compliance PAUL D MIXON Ph D PE

o Doctorate in Engineering o Over 12 Years Engineering Experience o Experienced Regulatory Engineer o Experienced Expert Witness o Electric Utility Industry Specialist

f lS l\! .Irillsallnllf

Contact: Dr. Paul Mixon P.O. Box 3338 State University. AR 72467 (501)-972-2088 E-mail: pmixon@navajo.astate.edu

rlU Illi

~

526 519 531 529 530 532 520

517 529

Black Respondent Black White Both Total Which lawyer would you hire with a legal problem involving...

Wills/Inheritance 40.5 Malpractice 29.7 Divorce/Child Custody 37.8 Car AccidenVTraffic 32.4 Setting up a Business 29.2 Sexual Harassment 33.3 Discrimination 55.4 Ace. of Racial Disc 47.3 Ace. 01 Sexual Disc 44.6

23.0 37.8 27.0 33.8 38.9 25.0 17.6 28.4 27.0

36.5 32.4 35.1 33.8 31.9 41.7 27.0 24.3 28.4

74 74 74 74 72 72 74 74 74

White Respondent Black White Both Total Which lawyer would you hire with a legal problem involving...

Willsllnheritance 3.9 53.4 42.7 436s Malpractice 6.9 47.3 45.9 423s Divorce/Child Custody 4.6 48.3 47.1 435s Car AccidenVTraffic 7.2 45.8 47.0 430s Setting up a Business 5.3 46.7 48.0 435s Sexual Harassment 12.1 41.2 46.7 437s Discrimination 19.7 37.6 42.7 426s Ace. 01 Racial Disc 28.1 31.9 40.0 423s Ace. of Sexual Disc 7.8 46.2 46.0 435s s: a significant djtference between the two groups

Fairness in the Law Profession There was a significant difference in the way Ihal black and white respondents perceived anomeys. A majority of black respondents indicated that white attorneys were laken more seriously by juries lhan black attorneys. Over six in len white respondents said that bolh black and white anomeys were laken equally seriously by juries.

Race of the Lawyer Biack White Both Total Which lawyer is taken more seriously by juries?

6.4 33.6 60.0 535 Black Respondents Black White Both Total Which lawyer is taken more seriously by juries?

14.3 51.4 34.3

70

White Respondents Black White Both Total Which lawyer is taken more seriously by juries?

4.9

30.4 64.7 447s

s: significant difference in the two groups

see "Attorneys" page 29

"Attorneys" As in the case of gender issues, the reasons given by respondents for perceptions of bias on the pan of juries was not very useful. Most whites gave answers indicat-

ing that they believe American society gives more acceptance and credit to white attorneys.

Blacks gave a variety of responses with no clear pattern.

If judge is black-who has advantage?

Respondents Total Black White 104 71.2 28.8 Black Respondents Total Black White 42.9 2t 57.1 White Respondents Total Black White 75s 77.3 22.7

in contrast, a majority of whites said that

both races were equally likely to be judged based on appearance.

Race of the lawyer Black White Both Total Which lawyer is judged more by appearance than abilities?

25.3

s: significant difference between the two groups

Reasons why one gender has an advantage over another gender when the jUdge is female.

Percent Male Female Societal ViewslDominent 37 72 Gender Competencyl Education of Gender 26 8 Personal Perception!

Experience of Respondent 21 13 Identifying with One's 11 2 Own Gender Geographical Region of 4 5 Respondent 2 Other 0 '100 Total 100 125 19 IN) 'lOal may 001 add to 100 due to rounding

Judges were much more li.kely than juries to be viewed as fair by respondents.

Both blacks and whites were likely to indicate that the race of the lawyer does not

matter to the judge. Nevenheless, there was a difference between black responses and white. Whites were significantly more

If the judge were white, both black and white respondents were likely to think that attorneys of the same race would have an advantage. While there was agreement between black and white respondents. significantly more blacks than whites

expressed the bel ief that white lawyers had an advantage before a white judge. So few respondents were willing to explain why the race of the judge gave one attorney an advantage over another that their responses were not usable.

23.2 51.4 525

Black Respondents Black White Both Total Which lawyer is jUdged more by appearance than abilities?

41.7

25 33.3

72

White Respondents Black White Both Total Which lawyer is jUdged more by appearance than abilities?

22.7

22.9 54.4 436s

s: signiflC3J11 difference between the two groups

General Attitudes About Lawyers Finally, subjects were asked about their general attitudes toward lawyers and how these altitudes might vary by race. A

If judge is white-Who has an advantage?

Respondents Total White Black 88.7 115 11.3 Black Respondents Total Whrte Black 31 100.0 0.0 White Respondents Total Black White 82s 84.1 15.9

majority of black respondents said that black attorneys: I) work harder; 2) advocate legal reform; 3) are involved in com-

munity work and charities; 4) give free legal aid to the poor; and 5) charge less.

White respondents attributed

positive

qualities to their race less frequelllly and were more likely to indicate that the two

s: significant difference between the two groups

races were no different.

likely than blacks to say that they believed that the race of the attorney has no influ-

ence of the judge.

Does the race of the lawyer matter to the jUdge?

Respondents Yes No Tolal 238 76.2 508 Black Respondents Yes No Total 42.5 57.5 73 White Respondents Yes No Total 21.2 78.8 416s s: significant difference between the two groups

Arkansan survey subjects were next

asked about the appearance of路 attorneys: "Which lawyer is judged more by appearance than ability?" Blacks and whites again differed significantly in their perception of how attorneys are perceived based on race. Blacks were more likely than whites to say that black attorneys are

Race of Lawyer Black White Both Total In your perception, which lawyer...

Works harder Keeps clients well informed Advocates legal reform

judged more by appearance than ability.

35.1

16.0 48.9 481

18.1 35.4

27.0 54.8 485 25.7 38.8 474

see "Attorneys" page 38

Announcing the Association of

Those respondents that indicated that the race of the lawyer matters to the judge

Benson, Robinson &Wood, P,L,C.

were asked which race would have an

Attorneys at Law

advantage if the judge were white or black.

Both black and white repondents said that if the judge were black the black lawyer had an advantage. Whites were more likely than blacks to so indicate.

p.o, Hox 3790

2020 KJoyce Blvd., Ste, 2 ~'ayetteville, AR 72'702-3790 I'all "Ii Ur lrkmll 1,IM)~r tl

TIME FOR CHANGE

by Diane Schratz Holitik he setting was Arkansas, 1957. As the doors to the then segregated Gibbs Elementary School were opening for Joyce Williams, the doors to Little Rock's Central High School were being forced by court order to open for the first nine AfricanAmerican students to attend. Little did Joyce Williams know that twenty years later, the doors of the Arkansas Supreme Court would open willingly for her to be the first African-American law clerk to work al the court.

In 1977, the atmosphere and mechanics

Judge Warren would be the first AfricanAmerican clerk on the coun staff when he hired her. What he did soon realize was that he had hired a 路'dependable, hardworking" attorney. who was also a fine writer. When asked about her participa-

"Justice John Fogelman, who served on the court during this time, recalled that Joyce Williams Warren's coming to work at the court was taken 'as a matter of

of the coun were somewhat different than

course; there was no

now. Although then, as now. seven justices sat on the coun, each justice al that

atmosphere of opposition:

time had only one law clerk and one secretary. Each chamber was separate, and there was lillie interaction between the staffs. This was the system when Joyce Williams Warren came to work at the Arkansas Supreme Court with newly elected Justice Darrell Hickman in January 1977.

Joyce Williams Warren graduated from the University of Arkansas at Little Rock School of Law in 1976. With her husband's encouragement, she applied for a clerking position with Judge Hickman,

Judge Warren never thought

who was still a chancellor at the time. but had been elected to the Arkansas Supreme Court without opposition in November.

Judge Hickman asked Judge Warren, who describes herself as an average to above-average student. to come in for an interview. Justice Hickman described his initial impression of her from the interview: "She impressed me. She had a delightful personality and had good grades." Judge Warren got the job and joined the court staff as his first law clerk,

However, there was some . " confu slOn...

an interim position that would last from January until August of that year.

Justice Hickman did 1101 know that

11 T"lII,hllill.lw!t,

rill Illi

in terms of being the first African-American clerk herself. Once she reached the court, she too found that she did not experience any opposition or controversy.

tion in his transition, Justice Hickman said. "She was a big help to me. Her work made it easier for me. I encouraged her (0 nm for judge herself, and not to wait for an appointment." At a later date, when then Attorney General Bill Clinton asked Justice Hickman for a recommendation of Judge Warren for a job, he guaranteed: "She'll never disappoint you."

When speaking of Judge Warren's writing talents, Justice Hickman related a story about a writing seminar that he had attended in Florida with Justice George Rose Smith around February in his first year on the court. The school asked its participants to send their writings back periodically so that the instructor could monitor their progress and provide comments.

Justice Hickman said that he had a policy of letting his clerks draft an opinion once they had gotten some experience. Once when Judge Warren was coming to the end of her tenure with him at the court, Justice Hickman sent the instructor an opinion that she had drafted instead of one of his own writings. He laughingly recounts how his instructor "sent it back and noted how much I was improving."

Today, Judge Warren still describes her clerking experience as "a dream of a lifetime." She loved her job, and she thought at the time that she would never find a job that she liked as much. Happily, her CUTrenl position has dispelled that fear. Six years after she left the court, Justice Hickman's prediction came at least partially true. Judge Warren was appointed a juvenile mediator in 1983 through the county judges' offices. In 1987, she was appointed to the Juvenile Justice Commission; and, in 1989, Governor Clinton appointed her a chancellor in the new Pulaski County Juvenile Justice Court. Judge Warren was later elected 10 the position without opposition in 1990 and 1994, making her the firsl AfricanAmerican elected to a state level trial court judgeship in Arkansas. While having started as a clerk for ajudge. Judge Warren has come full circle and now has her own law clerk.

Justice John Fogelman, who also served on the Arkansas Supreme Court during this time, recalled that Joyce Williams Warren's coming to work at the Court was taken "as a matter of course; there was no atmosphere of opposition." Judge Warren never thought in tem1S of being the first African-American clerk herself. Once she reached the court, she too found that she did not experience any opposition or con-

tToversy. However, there was some degree of confusion.

People were aware that Justice George Rose Smith had hired Alma Williams, also an African-American, to begin clerking for him in August 1977. Judge Warren relates that this caused a case of mistaken identity because Justice Smith had actually hired the first African-American clerk, although Judge Warren was the first AfricanAmerican 10 start serving as a law clerk.

Unlike Judge Warren, Ms. Alma Williams did not choose the law as an initial career. She allended a Lillie Rock elementary school and graduated from Dunbar High School. She had received her college degree in Alabama, but cume back to Arkansas after graduation. After teaching school for almost eighteen years, she decided to return to school when her children were teenagers in high school.

She had developed a background in civil rights issues and became interested in law school after she and her ex-husband filed a law suit for open housing that went all the way to the United States Supreme COUI1.

She appl ied for and was accepted into law school in 1973 as one of five AfricanAmerican students. She graduated from the University of Arkansas at Little Rock School of Law in May 1977.

"George Rose Smith felt this was his mission; he would take the lead for others to follow," Ms. Williams recalls. Having served on the court for twenty-eight years, Justice Smith knew that he was striking new ground in choosing to hire Alma Williams when he offered her the clerking job in 1976. Ms. Williams recounts that Justice Smith told her, "You will be the first black law clerk." Other law clerks who worked at the court while Alma Williams was there remember that Justice Smith was an exacting and detail-oriented justice. According to Chief Clerk Leslie Steen, Justice George Rose Smith created many of the court'S complex operating procedures, which today enable the coul1 to function better as a whole. He held his own office and the entire court to high standards. Indeed, Justice Smith's clerks were physically located in his office instead of in the anteroom library used by the other justices' clerks. Ms. Williams recalls that Justice Smith told her that he expected thorough research, memoranda, and opinions; however, she went on to elaborate he expected no more of others than he expected of himself.

Attorney Dewey Fitzhugh worked briefly with Alma Williams when he came to work at the court with Justice George Howard in 1978. He recalls seeing her di Iigently working on memoranda, and notes that Justice Smith appeared to have a good relationship with her. At the time, he felt that Justice Smith's confidence in Ms. Williams seemed to make the atmosphere more accepting towards him also. Mr. Fitzhugh recently reminisced, "I don't know that she knows it, but she did a lot for me. I gained some strength and confi-

"Having served on the court for twenty-eight years, Justice Smith knew that he was striking new ground in choosing to hire Alma Williams when he offered her the job in 1976. Ms. Williams recounts that Justice Smith told her, 'You will be the first black law clerk.' Ms. Williams recalls that Justice Smith told her that he expected thorough research, memoranda, and opinions; however, she elaborates that he expected of others no more than he expected of himself."

dence in her presence. It meant a lot to me to see another African-American working at the court at lhat time." He remembers feeling that they were under additional pressures to set a standard because they were the only African-American law clerks at the court.

After her clerking experience, Ms. Williams went to work for Entergy

Corporation, where she served as manager of community relations and special assistant to the vice-chairman of the corporation. Today, she is recently retired after eighteen years with Entergy. But it is hardly a relaxing retirement, since she is currently busy as a partner in a personnel and consulting business with her son. She undertook the responsibility of being the executive coordinator of the fortieth anniversary of the Central High School crisis.

Reflecting on her time at the court, Ms. Williams remembers that a lot of people thought that Justice Smith would not actually hire her, but he told her that "we need to do this."

Although her job with Justice Smith was demanding, Ms. Williams describes her year of clerking for him as "a wonderfu I ex perience."

Lyndon Johnson once noted, "Until justice is blind to color, until education is unaware of race, until opportunity is unconcerned with the color of men's skins, emancipation will be a proclamation but not a fact." It is, perhaps, ironic that it was in Little Rock, the symbolic battleground for school integration, that two outstanding women became the first AfricanAmerican clerks to Arkansas' highest court, without any suggestion that their hiring was out of the ordinary. Indeed, it was not until this article was being prepared that Judge Warren even knew that she held such a place in Arkansas legal history.

Other African-Americans have since served as clerks for the justices of the supreme COUf!, as well as for judges on the Arkansas Court of Appeals. Other distinguished African-Americans Harold Flowers, George Howard, Jr., Andre Roar, Wendall Griffen, Ollie Neal, Perlesta A. "Les" Hollingsworth, Richard Mays have served as justices or judges on these coul1S in the past 20 years. In all of these instances, the doors to the coun have been opened willingly and these appointments have been made without the need for any outside intervention. It is in this vein lhat the Arkansas bar musl continue in a spirit of openness because, as Justice Smith said, "we need to do this...路:路

l'all199i Ur ,lrkma,I,'\\Jrr 31

Official Directory of the Arkansas Bar Association "Your Blue Book of Attorneys - Since 1935" Names, addresses and telephone numbers for virtually all of the legal community

The Table of Contents includes the following: Ant.naa. Bar A.,oelation U S Govemment Executive Branch Legislative Branch U S SeNltor.

U 5 Repr••entatlves Judicial Branch U S Suprema Court U 5 Courts of App"'1

Eighth Circuit (AR, LA, MN. MO. NE. NO, SO) U S Court of Appea', - Federal Circuit

U S Court of Appaa's tor the Armed Forc••

U S DI,trict Courts Jurl,dlctfon.

U S DI.trict Courts

e.-tern District of Mans•• We,tam DI,trict of Artansa.

U S BankNplcy Courtl

E.,tem .. W.,tam Districts AUng O"'e. .

U S Prob.tlon Office

E..tam District of Arkan,..

We,tem District of Arkan,..

U 5 Court of Fadera' Claims U 5 Court of Intamatloll8! Trad, US Tax Court Oepartment of H. .lth &. HUmlin Sarvlc•• Raglon IS Department 01 Interior Bur.au of Indian Afhll,..

Oepartment 01 Justice AttonMiY Ganeral AntItrust Dlvtalon Drug Enforcement AdmlnlatrlltJon New OriNna OM.ton Inwatlgation Fede,..l Bureau Fede,..l Bureau Prlso". South C.ntral Aigion Immlgrlltlon " Nllturallzatlon Servtce East,rn Ftlglon US Attomer.0 U S MIIr.hII • Servtce US Tru.tee'. Offtce, Region 13 Oepartment LAbor Offlce Worker'. Compe".atlon Program.

Occupational Safety end HMIt,.. AdmInistration Department Trea.ury Bureau of Alcohol, Tobacco end Are.rm.

Internal Rewnue Servtce Internal Rewnu. Servtce, Mld.tate. Region Internal Rewnue Service, AR-OK DI.trict U S Customs Servtu, Gult Department ot Vetera". Affairs Social Security Admlnl.tratlon, Reolon e Tlme Zone. and Telephone Area Code. Map Sc:OOol. ot LAw Arkanua State Government executive Offlcers General Asaambly Senator.

House of Repre..ntlltlva.

Stat. Agencle.

Attorney General'. Ottlce Arkan••• Code Revl.lon Comml••lon Oapartment ot Correction.

Taxation Oepartmentll

0'0'

0' 0' 0'

cue

Internal Revenue Service, AR-OK DI.trlct Departmant of Anance & Administration Arkan.a. Public Servtce Commlulon Court Section - Arkan...

Supreme Court Court of Appeal.

Admlnl.tratlv. Offtc. of the Courts Judicial Discipline" olaablllty Comml••lon Circuit Courts Chllnc:ery Courts Juvenll. Courts Probate Courts County Courts Courts of Common Plea.

Municipal Courts Justice. of the Peace County Quorum Courts City Courts ponce Courts Profe.slonal Auoclatlons American A••oelatlon of Law lIbrllrie.

American Bar A••oelallon A.soclatlon of legal Admlnl.tratora As.oclatlon of Reporter. ot Judicial oeel.lons A••oelatlon of Trial Lawyers of America legal A.sl.tIInt Management A••oclatlon legal Secretllrle. International, Inc. National Anoclatlon of Criminal Delen.. Lawyera National As.oclatlon of leoal A••I.tanu:, Inc. National As.oclatlon of leoal Secretarte.

NIItional As.oclatlon of Women LAwye,.

NIItional Court Reporter. As.oclatlon National FederaUon of Parllleoal A.aoclatlona Arkanaa. Aa.oclatlon of lagal Seeretllrl•• Arkanaa. Anoclatlon of Women Lawyars Arkansa. Bar A••oclatlon Executl .... Council Bar District.

Stan Hou.e of oelegala.

Section Omcer.

Standing" Special Commltt.e.

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Young Lawyers Section Report

An Update on YLS

by SCOIf Morgan N TS AND BOLTS Don't miss the annual "Bridging the Gap" seminar which will be held at the ALR Law chool in the Herschel Friday Counroom ovember 13·15, 1997. Come and learn everything you never learned in law school, particular-

Disaster Relief: Baxler Sharp, 870/734-4060; Hospice: Jonann Roosevell, 501/376-2011; Comm· unications: Cindy Grace Thyer, 870/932-4522; Mentor Program: Todd Greer, 501/376-2011 or Kathy Cloud, 501/372-0800.

ly some practical aspecls of practicing law. Those of you licensed to practice Ihe seminar for only $25.

As co-chair for the seminar, Dave Hodges (501/374-2400) and John Myers (501/663-4700) have PUI togeth·

MENTOR PROGRAM The mentor program is having its fall kickoff at Juanita's at 5:00 p.m. on ovember 15. If you are a young lawyer and you would like to volunteer

er an impressive slate of speakers

to be a "mentor" to law students al the

including Federal Court Judge Bill Wilson, Judge Wendell Griffen, H.T.

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for two years or less, may register for

Moore, John Everett, Sam Perrolli and

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One hair of Ihe course will be a sub· sl,antive overview covering areas

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ond half will focus on Ihe procedural aspect of practicing law and will cover

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Approximately 15.5 hours of CLE are available.

The seminar will end with a cocktail pany al Juanita's at 5:00 on November 15. Watch for the "Bridging the Gap" brochure in Ihemail or call the Arkansas Bar Center at (501) 3753957. We'll see you there!

o

THE MOVE Frank Arey, of Conway, Arkansas, was appoinled to the Arkansas Coun of Appeals by Governor Huckabee on May 8, 1997, to finish the lerm of the lale Judge James Cooper.

Judge Arey served as Chief Legal Counsel 10 Governor Mike Huckabee for a year before his appointment, and has been active in the Young Lawyers Section, serving on the

Executive

Council from 1994 to 1997. While a member of the YLS, he panicipated in Law Day, and co-chaired the Bridging Ihe Gap Seminar in 1993 and 1994.

In discussing his appoinlment, Judge Arey said Ihe only drawback 10 joining

WELCOME I EW YO G LAWYERS Congralulations 10 all of Ihe sur·

the court was leaving Governor Huckabee's office. In private practice

vivors of lhe Arkansas Bar Exam!

1110s1 of Arey's appellate experience

Those of you who plan 10 practice in Arkansas are invited to become pan of the Young Lawyers Section of the

was before the 8th Circuit. Of the Arkansas Coun of Appeals, Judge Arey said, "I have been very impressed with how hardworking and helpful all of the judges and their staffs have been."

Judge Arey has spoken publicly about encouraging litiganls to request

Arkansas Bar Association. You are a

"young lawyer" for the first five years of practice or ulllil you lurn 36, whichever is later.

If you would like to become involved in any of Ihe projects sponsored by the Young Lawyers Seclion, contact any of the following committee chairpersons:

in Brinkley, Little Rock, and Conway,

oral arguments before the court.

He

offered this advice to young lawyers considering an appeal: "I would lell young lawyers not to quickly give up

the chance 10 talk 10 the coun about their case. If they know it is not a novel situation, or if the controlling authority is clear, then maybe oral argument is unwise. But otherwise, it is a valuable and under-utilized tactic on appeaL"

HATS OFF To Colli McKiever who staned a general practice in Fayeneville April I, 1997. To Jim Bradbury for his recent pannership at Barren & Deacon in Jonesboro. To James A. Simpson, Jr. for making panner al Lighlle, Beebe, Rainey, Bell & Simpson in July, 1997.

BIRTHS Congratulations 10 AI Thomas, and his wife, Sancy, on the binh of their second child, Alison Anne, born May 6, 1997; and to Ed Siaughler, and his wife, Sherry, on the binh of Iheir first child, Jackson Payne, on April 28, 1997.

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Shielding Volunteers From Tort Liability Congress Expands the Safety Zone

by Frances Fendler Rosenzweig, Professor of Law, University of Arkansas at Little Rock School of Law

omission.

Once upon a time, rhe manager of a Utrle League baseball team in New Jersey reassigned a IO-year-old player from shortslOp 10 the aLIIfield.

While playing ,he outfield. ,he boy was stmek in the eye by a fly ball. The boy's parellls sued the manager on lhe ground thar the manager "failed to recognize that the boy was a born infielder." I Stories such as these prompted the enactment of the Volunteer Protection Act of 1997,2 which President Clinton signed into law on June 18. The new Federal Act

ariously liable, the organization must look to state law for relief,6 including state-law doctrines of charitable immunity7 and governmental immunity.8 Moreover, the

delineates circumstances in which volun-

of value in lieu of compensation. in excess

Even if a volunteer is not immune from

teers of philanthropic or civic or governmental organizations are protected from lort liability. It preempts inconsistent state laws, except for state Jaws that provide greater protection for volunteers}

of 5500 per year..." To be protected by the

liability under section 4,13 if he was acting within the scope of his responsibilities to

Congress' purpose in enacting the Volunteer Protection Act was to encourage

the volunteerism that is essential to the operation of many social service agencies, educational institutions, and other nonprofit organizations and governmental entities. The Arkansas General Assembly was motivated by similar concerns when it enacted analogous statutes protecting volunteers from tort liability--the Arkansas Volunteer Immunity Act4 and the State and Local Government Volunteers Act 5 This article will discuss the new Federal Volunteer Protection Act first and then tum to its effect on Arkansas law.

It is important to note that the new Federal Act and this article focus on the potential tort liability of volunteers. If a volunteer commits a tort which renders the organization for which he was acting vic-

II He lrllllll li"er Fill 1m

Federal Act does not protect volunteers against liability to the organizations which

they serve. 9 The Volunteer Proleclion Act of 1997 The "volunteer" protected by the new

Act is defined as "an individual performing services for a nonprofit organization or a governmental entity who does not receive

(A) compensation...or (B) any other thing

Act, the volunteer must be acting for a "nonprofit organization" or for a "governmental entity." "Nonprofit organization" is defined as any tax-exempt organization

described in section 501(c) (3) of the Internal Revenue Code or, broadly speaking, any other bona fide philanthropic or CIVIC nonprofit organization. to "Governmental entity" is not defined. For the sake of clarity, from now on the ternl "organization" will be used to mean both "nonprofit organization" and "governmen-

tal enlity."

The broad immunity granted by the new Act is found in section 4(a), which provides. with certain exceptions, that "no

volunteer of [an organization] shall be liable for harm caused by an act or omission of the volunteer on behalf of the organization" if the prescribed conditions are met. These conditions are:

(I) The volunteer must have been acting within the scope of his responsibilities in

the organization at the time of his act or

(2) If appropriate or required, the volunteer was properly licensed. certified, or authorized to perform the work he did.

(3) The harm was caused by no more than ordinary negligence. The volunteer is not immune from liability for harm caused "by willful or criminal misconduct, gross negligence, reckless misconduct, or a conscious, flagrant indifference t.o the rights or

safety of the individual harmed by the volunteer." I1 (4) The harm was not caused by the volunteer's operation of a motor vehicle. 12

the organization, the Act restricts the avail-

ability of punitive damages and abolishes joint and several liability for noneconomic losses. Punitive damages are not available against a volunteer unless the plaintiff proves by "clear and convincing evidence"

that the harm was proximately caused by the volunteer's "willful or criminal misconduct, or a conscious, nagrant indiffer-

ence to the rights or safety of the individual harmed."14 With respect to joint and several liability for "noneconomic loss," section 5 pro-

vides that a volunteer defendant "shall be liable only for the amount of noneconomic loss allocated to that defendant in direct proportion to the percemage of responsibility of that defendant...for the harm .. .',t5 The trier of fact is required to detennine

the volunteer defendant's percentage of responsibility for the plaintiff's harm 16 "Noneconomic loss" is defined to include "losses for physical and emotional pain,

suffering, inconvenience, physical impairment, mental anguish, disfigurement, loss of enjoyment of life...and all other nonpecuniary losses of any kind or nature." 17 Noneconomic loss is contrasted to "economic loss," which means pecuniary loss, including lost earnings and other employment benefits, medical expenses, replacement services loss, and loss of business or employment opportunities. t8 The New Federal Act's Effect on Arkansas Law The primary Arkansas statutes concerning volunteer liability--the Arkansas Volunteer Immunity Act l9 and the State and Local Government Volunteers Act 20-set up a peculiar scheme. They grant the volunteer immunity against liability for ordinary negligence, but only if there is no insurance coverage. If there is insurance, the volunteer is liable for his conduct, but his liability is limited to the amount of the insurance coverage. The effect is to permit an injured person to sue the negligent volunteer and, in effect, to recover damage from the insurance company.

For example, the Volunteer Immunity Act provides that a "qualified volunteer" is protected from liability except "[w]here the qualified volunteer is covered by a policy of insurance, in which case liability for ordinary negligence is limited to the amount of the coverage provided..... 21 Under the State and Local Government Volunteers Act, "Volunteers in state service may enjoy the protection of the state's sovereign immunity to the same extent as The "paid staff' are paid staff.',22 "immune from liability and from suit, excepr 10 rhe exreflf rhar rhey may be cov· ered by liability insurance, for damages for acts or omissions, occurring within the course and scope of their employment.,,23 It is likely that these "liable to the extent of insurance" provisions are preempted by the Federal Act. The Federal Act preempts state laws "to the extent that such laws are inconsistent with this Act, except that this Act shall not preempt any State law that provides additional protection from liability relating to vol unleers.. .',24 The Arkansas scheme of denying immunity to volunteers who have insurance is surely inconsistent with the Federal Act's grant of immunity to volunteers without regard to whether they have insurance. Similarly, Arkansas' denial of immunity to insured volunteers does not

provide those volunteers "additional protection from liability." While the Arkansas scheme on its face protects volunteers from liability beyond the amount of their insurance coverage, those who are sued will suffer the inconvenience of being forced to answer and defend the suit, and will likely suffer uncompensated economic losses in the form of time missed from work 25 The Federal Act changes the law relating to volunteer liability in Arkansas in other, less fundamental ways. The more significant of these changes include: (1) Expanding the set of volunteers who are protected against liability;26 (2) Providing immunity against a larger class of potential plaintiffs;27 and (3) Raising the standard of proof for punitive damages to clear and convincing evidence 28 Conclusion The new Federal Act, by preempting much of Arkansas law on the subject, simplifies and broadens the law governing tort liability of volunteers. It answers many questions which the Arkansas statutes leave unanswered--including the question whether a lawyer serving as a director of a nonprofit philanthropic corporation is protected against liability for ordinary negligence to persons harmed by the lawyer's advice to the corporation. 29 Assuming that the new Act passes constitutional muster,30 it should have the effect that Congress intended, to encourage volunteer service.•:.

ENDNOTES I. A Bill Entitled the "Volunteer Protection Act of 1987": Hearings Oil S. 929 Before rhe Subcomm. on. Caurrs and Administrarive Practice of the Senare Comlll. all the Judiciary, 100th Congo 177 (1989) (statement of Dr. Creighton J. Hale, president and chief executive officer of Little League Baseball), microfomled on Sup. Docs. O. Y4.J89/2:5.hrg.1 00-1 074 (Congressional Info. Serv.).

2. Pub. L. No. 105-19, III Stat. 218 (to be codified al 42 V.S.c. §§ 14501-14505).

3. However, the Act pennit states, by enacling specified legislation, to "opt out" of its coverage with respect to any civil action against a volunteer in which all parties are citizens of the state. Jd. § 3(b). In addition, the Act permits states to make see "Shield ing" page 36

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"Shielding" volunteer immunity subject to certain conditions, e.g., requiring that organizations provide a financially secure source of recovery for persons who might be injured by a volunteer's actions. Id. § 4(d).

4. Ark. Code Ann. §§ 16-6-101 to -105 (1994), amellded by 1997 Ark. Acts 276.

5. Ark. Code Ann. §§ 21-13-101 to -III (1996).

Arkansas has a hodge-podge of other statutes granting volunteers immunity from liability in narrowly defined circumstances. E.g., Ark. Code Ann. § 8-7-101 (1993) (granting immunity to volunteers who assist 31 a discharge or clean up of hazardous materials); Ark. Code Ann. § 12-75-128 (1995) (granting immunity to volunteer emergency service workers under the Arkansas Emergency Services Act of 1973): Ark. Code Ann. § 12-83-104 (1995) (granting immunity to emergency services volunteers under the Emergency Volunteer Reserve Act of 1995): Ark. Code Ann. §§ 16-5-101 to -102 (1994) (granting immunity to volunteer fire fighters); Ark. Code Ann. §§ 16-120-101 to104 (Supp. 1995) (granting directors of nonprofit corporations and members of governmental boards and commissions immunity from vicarious liabilily): Ark. Code Ann. § 17-95-101 (1995) (the "Good Samaritan" law). Because these laws are nol designed to encourage volunteerism across a broad spectrum of philanthropic and governmental programs, they are not specifically addressed in this anicle.

6. Volunteer Protection Act § 4(c).

7. See, e.g., Masterson v. Stambuck, 321 Ark. 391,400-03,902 S.W.2d 803, 809-11 (1995); Williams v. Jefferson Hospital Ass'n, 246 Ark. 1231. 442 S.W.2d 243 (1969).

8. See, e.g., Ark. Const. an. 5. § 20 (sov-

ereign immunity of state of Arkansas); Ark. Code Ann. § 21-9-301 (1996) (political subdivisions of state granted immunity from liability except to the extent there is liability insurance coverage); see also Ark. Code Ann. § 23-79-210 (1992) (direct action statute).

9. Volunteer Protection Act § 4(b).

10. Id. § 6(4). To qualify as a "nonprofit organization," the organization cannot "practice any aClion which constitutes a hate crime referred to in subsection (b)(I) of the first section of the Hate Crime Statistics Act (28 .S.c. 534 note)." Id. II. Id. § 4(a)(4).

12. Id. The Federal Act goes on to specifically exempt from its proteclion misconduct (I) that constitutes a crime of violence or act of international lerrorism for which the volunteer has been criminally convicted: (2) that constitutes a "hate crime"; (3) that involve a exual offense for which the volunteer has been criminally convicted: (4) that involves misconduct for which the volunteer has been found to have violaled a Federal or State civil rights law; or (5) where the volunteer was under the innuence of alcohol or drugs at the time of the misconduct. hi. § 4 (f).

13. Volunteers who are not immune from liability are those who were guilty of gross negligence or worse. or who caused damage by driving a motor vehicle, or who were not properly licensed to perform the activity which caused the harm. Repon of the House Comminee on the Judiciary, Volunteer Protection Act of 1997, 105th Cong., 1st Sess., H.R. Rep. No. 105-101, dissenting views <http://frwebgate.access.gpo.gov/cg...;/diskb/wais/data/10530 njLrepons> (hereinafter "House Repon").

14. Volunteer Protection Act § 4(e).

15. Id. § 5 (b) (I).

16. Id. § 5 (b)(2).

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17. Id. § 6 (3).

18. Id. § 6 (I). Economic losses are recoverable only to the extent allowed under applicable state law. Id. 19. Ark. Code Ann. §§ 16-6-101 to -105 (1994), ome"ded by 1997 Ark. Acts 276.

20. Ark.CodeAnn.§§21-13-101 to-III ( 1996).

21. Id. § 16-6-105(1)(1994).

22. Id. § 21-13-108(b).

23. Id. § 19-10-305(a) (1994) (emphasis added). The tonured history lying behind [his statute is described in Lisa B. Tobin.

Ole, Bly v. Young. Beaulieu v. Gray, and Carter v. Bush: The Arkansas State Employee Immlllliry Trilagy, 41 Ark. L. Rev. 893 (1988).

24. Volunteer Protection Act § 3 (a).

25. The Act would, however, permit Arkansas 10 require, as a condition of limiting volunteers liability. that the nonprofit organization or governmental entity provide insurance or some other financially secure source of recovery for persons who are hanned by a volunteer's actions. The point is 10 guarantee that the organization, not the volunteer, will be able to pay for losses. Id. § 4 (d) (4).

26. The Federal Act extends protection to volunteers serving not only non-profit organizalions Ihal are tax exempt under section 501 (c)(3) of the Internal Revenue Code, but also to "any not-for-profit organization which is organized and conducted for public benefit and operated primarily for charitable. civic, educational. religious, welfare or health purposes" and which does nor commit hate crimes. Compare Volumeer Protection Act § 6 (4) (b) wirlt Ark. Code Ann. § 16-6-103 (2) (1994).

The legislative history states. by way of example. that the new Act's protection extends to "trade and professional associations and other business leagues which are exempt from taxation under seclion 501 (c) (6) of the Internal Revenue Code." See House Report, supra note 13.

27. The Arkansas Volunteer Immunity Act restricts the class of potential plaintiffs; the plaintiff against whom protection is granted is "one who is a participant in. or a recipient. consumer, or user of, the services or benefits of a volumeer...'· Ark. Code Ann. § 16-6-105 (I) (1994). The Federal Act contains no such restriction.

By way of illustration, if the plaintiff was walking beside a golf course when a Boy's Club volunteer golf instructor negligently see "Shielding" page 37

"Shielding"

hit a golf ball which struck and injured the plaintiff, the volunteer would not be protected under the Arkansas Act, but ~ now protected by the new Federal Act. 28. See National Bank of Commerce v.

McNeill Trucking Co., 309 Ark. 80, 91-92, 828 S.W.2d 584, 589-90 (1992) (Dudley, J., concurring) (arguing that Arkansas should adopt clear and convincing standard of proof for award of punitive damages.)

29. See Ark. Code Ann. § 16-6-105(4) (1994). Under the Federal Act, the answer is "yes"; the Federal Act grants protection to all volunteers that satisfy the standards for protection, without treating lawyers (or

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any other class of people) differently. See Volunteer Protection Act §§ 4-5, 6 (6).

30. See generally City of Boerne v. Flores, 65 U.S.L.w. 4612 (June 25,1997); United States v. Lopez, 514 U.S. 549 (1995).

Frances Fendler Rosenzweig is a professor of law at the Unl\'ersity ofArkansas ar Lilrle Rock School of Law.

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Committee & Section News "Committee & Section News" is an update report imended 10 inform the members of the Association of current activity. YOllr volunteers are working hard for yOIl and Ihe Association.

Please note: activity reported has /lot necessarily been recommended 10 the Executive Council as yet.

TASK FORCE ON LEGAL RESEARCH, PUBLICATIONS & TECHNOLOGY

by Slark Ligon In June, President-Elecl Jack McNulty appointed this new Task Force and charged it with the responsi-

bility of evaluating the Association's options with regard to its future relationships with companies in the busi-

ness of legal research, publications and technology. The Task Force includes representatives from the Association's Finance Committee, Electronic

Infonnation Committee, and Editorial Board for Systems and Handbooks.

As a substantial and growing publisher itself, through its "Handbooks" and "Systems," the Association must prepare now to meet the future needs of its members in an era of new and rapid-

ly-changing technologies, especially in CD-ROM and Internet products. In mid-1995 the Association entered into a five year agreement with LOIS, Inc. for Ihe exclusive righl for LOlS to publish CD-ROM versions of the Handbooks and Systems. This relationship, along with proposals from other vendors such as LEXJS-NEXIS and the West Group, is being reviewed by the Task Force.

Financial pressures on the Association will continue to increase as the needs for new and expanded services meet the realities of dues and membership growth limits.

Several other stat.e associations have recently restructured their publications in a

manner that has led to substantial increase in income stream and more

and better producI offerings. Their efforts are being studied by your Task Foree.

The Task Force members, Mark Allison, Lynn Foster, William A. Martin, Margaret Newton, Charles C. Owen, Jacqueline Wright, Stanley Rauls, George Plastiras, and Chair Slark Ligon, all of Little Rock, Judge

Leon Jamison of Pine Bluff, Murray Claycomb of Warren, and Association staff Don Hollingsworth, Judith Gray and Adrienne Brietzke have already mel several times. In addition 10

use of legal assistants. It is hoped that implementation of this proposed rule

will help in addressing and controlling Ihe unauthorized practice of law as well as related issues of professional mis-

reviewing vendor proposals and testing products on an individual basis, the

conduct.

Task Force is designing what in effect will be an outline for a request for pro-

Supreme Court for a per curiam order

posals to vendors interest.ed in a rela-

lionship with the Association Ihal will beller meet our members needs. If any Association member has an idea or opinion for the Task Force to consider, please address it to Executive Director

Don Hollingsworth at the Association office.

PUBLIC INFORMATION COMMITIEE

by Dent Gilchel, Chair Our Committee has divided into three

subcommittees,

with

the

goal is

The Committee's ultimate

present the rule to Ihe

10

wilh approval of the House of Delegates. If adopted, Arkansas would join Ihe over 30 slates Ihal have already implemented rules governing the activ-

ities of paralegals/legal assistants.

A copy of the proposed rule can be requested by conlacting Ihe Arkansas Bar Association office al 1-800-6095668 or Jan DeWoody Scussel, Paralegal Committee Char, P.O. Box 8064, Pine Bluff, Arkansas, 1-870-5340667. The Committee welcomes any comments from association members regarding the issues addressed in its proposed rule.â&#x20AC;˘:.

Brochures and Pamphlets subcommitlee chaired by Marcia Mcivor, the Media Relations subcommittee chaired

by Stacey DeWitt, and the Special Projects subcommittee chaired by John Tull.

The Committee, along wilh several olher invited participants, recently held

a three-hour brainstonning session at UALR's Center.

Baum

Decision

Support

From this session there was

developed a prioritized list of recommendations

from

the

Committee,

regarding the Association's public infonnalion and public relations programs.

Our Media Relations Subcommittee

chair Slacey DeWitt has drafled a Media Relalions Plan for the Association. After the plan is reviewed

and approved by the Committee, il will be recommended to the Association.

Adrienne Brietzke PARALEGAL COMMITIEE

by Jan Dewoody Scussel, Chair The Paralegal Commillee has developed a proposed rule relating to the utilization of legal assistants/paralegals.

Highlights of the proposed rule include selling minimum qualifications which

must be met before an individual can be designated as a legal assistant, defining the parameters within which paralegals may be ulilized, and delineating ethical guidelines applicable 10 an attorney's

Adrienne

Brietzke is

the

new

Direclor of Marketing and Special Programs for the Arkansas

Bar

Association as well as Ihe Editor for

The

Arkansas

Lawyer,

The

Newsbllllelin and The Membership Directory. Adrienne fonnerly worked

wilh the Arkansas Trial Lawyers Association.

fall 1997 The Mkmas 1,lwier 19

Rule 1.15 of Arkansas' Model Rules of Professional Conduct (hereafter, MRPC) requires lawyers to hold their

client trust funds in intereSlbearing accounts, either for the benefit of the individual client or the Arkansas IOLTA Foundation.

The Supreme Court of Arkansas created the Arkansas IOLTA program in 1984, In Re IOLTA, 283 Ark. 252, 675 S.W.2d 335 (1984), to provide funds for legal services to the poor, projects that improve the

administration of justice. and legal education. nder the program, interest is paid on nominal or short-term trust

deposits held in a lawyer's or law firm's client trust account,

IOLTA: What is It? What does it have to do with my clients' money?

with the interest remitted directly by the financial institution to the Arkansas IOLTA Foundation.

In October of 1994, the Arkansas Supreme Court modified Arkansas' MRPC 1.15 to make the IOLTA program mandatory for lawyers who handle qualifying funds.

Q: Does Rule 1.15 of Arkansas' MRPC apply 10 all lawyers licensed 10 praclice

law in Arkansas?

A: Yes. IJyou are licensed to practice law in Arkansas, you are required to comply with the Model Rules of Professional Conduct including Rule 1.15. However, that does not mean that all licensed lawyers must have a client trust account.

Some lawyers will be exempt from main-

taining a client trust account by virtue of the nature of their practice, the type of position or public office they hold, or because their law office is physically located in another state.

Q: Who must mai1l1oin a client tntSt accowu?

A: Arkansas lawyers, or their firms, who receive, maintain, or disburse qualifying funds. Qualifying funds are funds belonging to a client or third person that the

lawyer has in her possession in connection with a repre entation. To detemline if the funds should be placed in a client trust account, ask yourself whether you can treat those funds, when received, as your own. If the answer is no, then your obligation is to place them in a client trust account.

Q: What duries do I have wilh respect 10 retemion of cliem funds?

路10 Ue IrulwlJMjrr rail 1m

lawyer from deriving any benefit from clients' property.

Q: Does participation in the program depril'e my cliems of their imerest money?

A: o. The program was not meant to utilize interest money from all client trust deposits only those nominal in amount or to be held for a short period of time. a client is deprived of any practicable income opportunity. If these deposits were placed in separate, interest-bearing accounts, the administrative costs to the law firm and the service charges of the financial institution . coupled with the resulting tax liability to the client - would more than offset any income earned.

Q: Call lawyers slill deposil individual diem funds imo separate illlerest路bearing accounts for Ihe bellefil oflhe clienl?

A: Lawyers can and should continue to establish separate, interest路bearing accounts for individual clients' funds where the Slim is large enough or when the time of the deposit is of sufficient duration to justify the cost of opening, closing and administering the account. Any interest that accrues belongs to the client. Factors to consider include the amount of interest which the funds would earn during the period they are expected to be held, and the predicted cost of establishing and administering a separate account for Lhe funds (including the cost of the law firm's services).

Q: Where should a lawyer draw the line between which funds call be deposi/ed ill a separate 'r"st accoulll for an individual client and which fimds should be deposited ill lite firm's IOLTA accol/III? A: Whether the amount of interest an account will generate justifies the expense of opening and maintaining a separate account for the client is a detennination entirely within the lawyer's discretion.

TI,ere are no established guidelines.

Q: Wltal if my ballk refuses fa opell all IOLTA aCCOl/lIIJor my praclice?

A: Should a lawyer's bank refuse to offer an IOLTA account, then the allomey will need to move his or her trust account to a bank that does offer IOLTA accoulllS. Q: What if my cliem truSf accoum is rarely l/sed alld typically Itas a small balance?

by Lisa Melton A: Arkansas' MRPC require an altomey to hold clients ' funds in an account separate from the altomey's or firm's operating account. Rule 1.15 requires thaI all funds be held at interest, with the interest payable either to the client or to the IOLTA Foundation. To comply with their ethical obligation, lawyers must place clients' funds in the lawyer's client trust account until distribution. For client deposits that are large enough or to be held for a long enough period of time to warrant the cost of administering an individual account, lawyers are obligated to set up a separate interest-bearing account for the benefit of the individual client. Should the client choose not to be paid interest, then the funds should be placed in the IOLTA account discussed below. Generally, however, the deposits are not large enough or held long enough to generate interest that would offset the costs of maintaining a separate account. Consequently, attorneys routinely pool clients' funds in a single client trust account. either the attorney nor the client can receive interest, so the interest is paid to the Arkansas IOLTA Foundation to support law-related, charitble and educational activities.

This account is commonly referred to as the lawyer's IOLTA account.

Q: May I place Illy clielllS' funds ill all interest-bearing aCCOU111 and keep the imerest?

A: No. Arkansas' MRPC 1.15 prohibits a

A: Every lawyer is required to establish his or her c1ien! trust account as an IOLTA account. However, if the account loses money because the interest earned is less than the reasonable fees and charges assessed, then the IOLTA Board may, either in response to a request or on its own, exempt the lawyer from maintaining an IOLTA account. An exemption is subject to periodic review.

Q: Do I have 10 lIotify my eliellls Ihallheir fllllds wil/ be placed ill olllOLTA accolIlII? A: The Arkansas Supreme Court requires that clients be given an opportunity to know about (OLTA. To that end, the Foundation suppl ies each law firm with notice that must be posted in a conspicuous place in your law office.

Q: What do I have 10 do 10 comply wilh Rule 1.15?

A: Contact the Arkansas IOLTA Foundation for the proper form to set up your IOLTA account. Use the account in the manner required by Rule 1.15, and return your executed IOLTA compliance statement along with your annual fees to maintain your Arkansas law license.

Q: Hall' is Iile program ellforced?

A: Arkansas lawyers must certify annually that they have complied with Rule 1.15.

If a lawyer or law firm fails to comply with Rule 1.15. the lawyer will be referred to the Supreme Court Committee on Professional Conduct for whatever action the Committee deems appropriate.·:· Lisa Meltoll is the Execwive Director of IOLTA.

Presidellt's Report Continued from Page 3 of professional ethics; 3) it is also required that a request include a concise memorandum setting forth the requesting individual's own research and conclusions conceming the ethical questions involved; and 4) there must also be a statement in the request that the matter is not the subject of a pending disciplinary proceeding.

All of the advisory ethics opinions issued by the Committee are published in "The Arkansas Lawyer" or other publications of the Arkansas Bar Association.

The two most recent opinions were summarized in the last Association NewsBulletin. The summaries, as well as the opinions themselves, do not disclose the name of the attorney who requested the opinion.

As opinions of the Arkattsas Bar Association, these advisory opinions will provide helpful guidance to our members. However, it must be recognized that the opinions are advisory only and since they are not opinions of the Arkansa Supreme Court, they are not legally binding interpretations of the Arkansas Model Rules of Professional Conduct.

Anyone interested in receiving a copy of the procedures which govern the issuance of the opinions should contact our Executive Direclor, Don Hollingsworth.•:.

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rlllilli fie Irhll1l La~J!f

1\

lawyer disciplinary actions The Lawyer disciplinary actiolls are writ路 ten alld provided by file Supreme Court of Arkansas' Commiuee 0" Professional Condllct.

Mr. Jeffrey H. Kearney Pine Bluff, Arkansas A letter of caution was issued to Jeffrey H. Kearney for lhe violation of Model Rules 1.3, 3.4(c) and 8.4(d) based upon lhe Per Curiam complaint on appellant James Hollis Guss. The letter of caution wa filed with lhe Clerk on July I, 1997. These Rules state. in pan, that a lawyer shall act with reasonable diligence and promptness in representing a client: a lawyer shall not knowingly disobey an obligalion under the rules of a tribunal excepl for an open refusal based on an assertion that no valid obligation exists; and, a lawyer shall not engage in conduct that is prejudicial 10 the administration of justice.

As altorney for Appellant James Hollis Guss, Kearney limely filed a nOlice of appeal from lhe denial of a petition for post-conviction relief pursuant to Rule 37.

On September 16, 1996, a mOl ion for rule on the clerk was granted and he was given until October 26, 1996. 10 file a brief.

Subsequently, an extension to ovember 2, 1996, was given. On December 23, 1996. the appeal wa dismissed for failure 10 file a brief. On December 26, Kearney tendered a brief contemporaneously with the filing of the motion for reconsideration of dismissal and for filing the brief oul of lime. The motion was granted and a show cause order entered. Kearney appeared and entered a guilty plea to the conlempt citation and accepted full responsibility for failure to limely file lhe brief. Kearney presented mitigation evidence and told the Court of his intention to implement correclive action by personally calendaring the deadlines in his law praclice. The Coun fined him $250 for his conducl in this appeal.

Mr. David 1'. Henry Little Rock, Arkansas A letter of reprimand was issued to David P. Henry for the violation of Model Rules 1.4(a), 1.5(c) and 1.15(b) upon the complainl filed by George T. Gray. The

It Hr Irhllil Lllljlr

rail

1!Ii

leller of reprimand was filed with lhe Clerk on July 18. 1997. These Rules stale, in pan, thai a lawyer shall keep a client reasonably informed about the status of a mailer and promptly comply with reasonable requests for information; a contingent fee agreement shall be in wriling and shall stale the mel hod by which lhe fee is 10 be determ ined, and percenlages lhat shall accrue to lhe lawyer, the lawyer shall provide the client with a written statement slaling lhe outcome of the malter and, if there is a recovery, showing the remittance 10 the client and the method of its delermination: and, upon receiving funds in which a client has an interest, a lawyer shall promptly nOlify the clienl and deliver any funds that the client is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such propeny.

Dr. Gray and his wife hired Henry 10 represent them in a lawsuit against Dr. Barbara Holmes. The lawsuit involved a breach of contract in a real estate matter.

He was paid a relainer of $1, 100. The fee agreement was for Henry to receive 40% of any recovery after he relUmed the retainer to Dr. Gray. This agreement was never reduced to written fonn. Following a jury lrial on OClober 4. 1994, Dr. and Mrs. Gray were awarded damages in the amount of $4,786. The wrillen Judgmenl was fi led with the Circuit Clerk on Oclober 24, 1994. On December 12, 1994, Henry mailed Dr. Gray a trust accounl check in the amount of $1,246.40.

From the dale of lhal payment until lhe date of Dr. Gray's affidavit, which was ovember 19, 1996, Henry provided no funher payments to Dr. Gray. Dr. Gray made repeated requesls for Henry to provide him with an accounting of funds received. Henry did not do sO. Dr. Gray retained another attorney to assist him in recovering any funds from Henry. Henry advised Dr. Gray's counsel in June of 1996 that he would provide lhe funds he had received to him along with a letter of explanalion. He did not do so. Dr. Gray also learned that a Satisfaction of Judgmenl had already been filed as to lhis Judgment. The Satisfaclion selS OUI that the Judgment had been paid in full on or before OClober 15, 1995, a full year before Dr. Gray executed his affidavit of com-

plaint.

Henry's response began with an acknowledgment of the facts concerning the trial and entry of judgment as stated in Dr. Gray's affidavil of complaint. Henry explained that he was injured in an automobile accidenl on December 18, 1994, which caused him to be basically inactive for 90 days. The health problem did not resolve itself until after a hospitalization in the fall of 1995. During this time, he assened that he relied heavily on a former secretary/office manager for various office functions. Henry stated Ihal he was not aware that any payments were received on the judgment nor Ihal any funds were due to Dr. Gray. Funher, according 10 Henry. after being contacted by Dr. Gray's new counsel, he became aware thaI Dr. Gray was concerned about other payments on lhe judgment. Subsequent therelo, Henry examined the file and checking accounts and learned lhat there was indeed a problem. He averred that he sent a check to Dr. Gray's new counsel on July 8,1996, in lhe amounl of $2,582.28. He was nol aware that it had not been received until he received Dr. Gray's affidavit of complaint.

He asserted that he had since sent a new check. He expressed his underslanding of the seriousne s of this matter as well as his responsibility for the mailer. He added that there was no wrongful intent or purposeful act involved. He explained and justified the lack of a wrinen fee contract on the grounds that the agreement was not a "pure" contingent fee arrangement.

Mr. David P. Henry Little Rock, Arkansas A leller of caution was issued to Mr. David P. Henry for violation of Model Rules 1.2(a), 1.3, 1.4(a) and 1.4(b) upon the complaint by Richard M. Lincks. The letter of caution was filed with the Clerk on July 18, 1997. These Rules state, in pan, that a lawyer shall abide by a client's decisions concerning the objectives of represemalion, and shall consult wilh the client as 10 the means by which they arc to be pursued; shall act with reasonable diligence and promptness in representing a cI ient; shall keep a cl ient reasonabl y infonned about the status of a matter and promptly comply wilh reasonable requests

lawyer disciplinary actions for infomlalion; and, shall explain a mailer the extent reasonably necessary 10 permit lhe clienl to make informed decisions

10

regarding the representation.

Mr. and Mrs. Lincks were represented

by Henry when a Judgment was filed of record again I lhem in Pulaski County Chancery Coun on May 28, 1996. The Judgment was the result of lwo day of trial. The lrial began in September of 1995 and concluded wilh one day of testimony and evidence in January of 1996. The Court's initial decision was to deny the

claims of his clients and those of the opposing party. However, after posl-trial briefs were filed, the court decided lhat Henry's clients were indebted to the

opposing party. The information and records provided by Mr. and Mrs. Lincks eSlablish thai the precedenl for this Judgment was sent to Henry by opposing counsel on or aboul April 15, 1996. A hearing was set for May 28, 1996, because there was some indication thai he intended to file a leller of objection 10 the Decree.

His signawre does not appear on the Decree so it appears he was nol present at the hearing on May 28, 1996. AJJ of the post-trial activity look place with no notice to Mr. and Mrs. Lincks. They did nOl learn of lhe filed Decree until June 13, 1996. He did nol advise Mr. and Mrs. Lincks of the Decree, rather they were infonned of it through service of a Writ of Garnishment.

On lhe day thai they received lhe Writ, Mr. and Mrs. Lincks lelephoned him, faxed him a copy of the Wril, requested an objection be filed 10 the Writ, and direcled that an appeal be filed. Henry took no immediate action as Mr. and Mrs. Lincks requested. The Olice of Appeal was nol filed by him until afler the garnishmenl was paid and the Satisfaclion of Judgmenl had been enlered of record. Subsequent 10 the Satisfaclion of Judgment being filed, he filed an Applicalion for Stay of Judgment. As the opposing party's counsel pointed out in his response to his

Applicalion, the requeS! was moot.

In his response 10 the Committee,

Henry began by acknowledging representation of Mr. and Mrs. Lincks. He also provided information concerning pre-

judgment mailers. In the information provided by him, lhere is an explanation that the trial

was

not complel.ed during

September of 1995 so the panies were required to return in January of 1996 to complete laking evidence. The Chancellor initially denied the claims of both panies, from the bench. However, following submission of post-trial briefs, the Chancellor changed his decision, and ruled againsl Mr. and Mrs. Lincks, finding them liable for a certain amount. According to Henry, M.T. and Mrs. Lincks' reaction was extreme. He acknowledged thai they wanted 10 appeal. He asserted that he never felt an appeal would be fruitful. It was also his assertion lhal he did nOl have an objeclion to the precedent for Decree, but he did requeS! more time before approving Ihe Decree because his clients were so upset. Henry stated that he did nOI receive a copy of the Decree until after the

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lawyer disciplinary actions savings account had been garnished.

Again. he stated that he counseled Mr. and Mrs. Lincks against pursuing an appeal.

He was not aware that Sati faction of Judgment had been filed the day prior to the Notice of Appeal that he filed. Funher, according to him, everything Mr. and Mrs. Lincks wanted him to do was done with the objectives of representation being accomplished. He also averred that every

action was taken with reasonable dili-

occasions either laid her that he would send her the money or deliver

it

10 her

home. but he has not kept his word.

The complaint was sent by cenified. restricted delivery mail and he received

same on or about September 21. 1996. His response was due October II. 1996: however, he failed to respond.

Mr. Michael A. Belt rani Little Rock, AR

gence. As for his communication with Mr.

and Mrs. Lincks, he stated that they were well informed and he did everything in his power to fully advise and counsel them.

Mr. Michael A. Beltrani lillie Rock, AR A leiter of suspension was issued

(0

Michael A. Beltrani for violation of Model Rules 1.3 and 1.I6(d) upon the complaint of Ida V. Foley. The leller of suspension was filed with the Clerk on August 14, 1997. These Rules state, in pan, that a lawyer shall act with reasonable diligence

A leiter of suspension was issued to

Michael A. Beltrani for violation of Model Rules 1.1, 1.3. 1.16(d) and 8A(d) upon the complaint by Donna Arrowood. The letter of suspension was filed with the Clerk on August 14, 1997. These Rules state, in pan, that a lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge.

behalf.

The complaint was sent by certified, restricted delivery mail and Beltrani received the same on July 3, 1996. His response was due on July 23. 1996. He requested an extension based on the fact that Mrs. Arrowood had civil litigat.ion

pending against him. An extension was granted to September 30, 1996. response was received.

a

Mr. Ronald C. Nichols Little Rock, AR A letter of caution was issued to

Ronald C. Nichols for violation of Model Rules 1.3 and 8A(d) upon the complaint

by Lamont Bowden. The letter of caution was filed with the Clerk on August 18, 1997. These Rules state, in pan, that a lawyer shall aCI with reasonable diligence

skill, thoroughness and preparation rea-

and promptness in representing a client;

sonably necessary for the representation; a

and, a lawyer shall not engage in conduct

lawyer shall aCI wilh reasonable diligence

that is prejudicial 10 the administration of justice.

and promptness in representing a client; upon termination of representation. an

Mr. Bowden is Nichols' c1iem in an appellate mailer pending before the Arkansas Supreme Coun. The appeal is

and promptness in representing a client; and, upon tennination of representation,

aHomey shall take steps to the extent reasonably practicable to protect the client's

an allomey shall take teps to the extent reasonably practicable to protect the

interests, such as giving reasonable notice

from a capital murder conviction.

to the client, allowing time for employ-

the infonnation provided by Mr. Bowden, and discerned from the appellate records, it was determined that Nichols filed the record with the Clerk on December 6, 1995. The brief on Mr. Bowden's behalf was first due on January 15, 1996. Instead of filing the brief on that date, ichols

client's interest, such as giving reasonable

ment of other counsel, surrendering papers

notice to the client, aHowing time for

and propeny to which the client is entitled

employment of other counsel, surrendering papers and propeny to which the client

and refunding any advanced payment of

is entitled and refunding any advanced

shall not engage in conduct that is prejudi-

payment of fee that has not been earned.

cial to the administration of justice.

Mrs. Arrowood averred that she hired Beltrani on or about May 22, 1995, to file

Mrs. Foley slated that on or about

fee that has no! been earned; and, a lawyer

From

requested the first of his four extensions to

Augu t 20, 1995, she hired Beltrani to file for divorce for which he was paid 5500.

Approximately two weeks later he told her that he was taking care of everything. but when she next spoke with him around midSeptember he admiHed having done noth-

a bankruptcy on her behalf. She paid him 5660 for this service. According to Mrs. Arrowood Beltrani never filed anything on her behalf. She did, at his request, complete Bankruptcy Schedule J: however.

ing and offered excuses for his inaction.

MTs. Arrowood stated, since that time

Court i sued a show cause order to him.

By the end of September he told Mrs. Foley that the complaint for divorce had been sent to her husband's office for service. Soon thereafter she advised Beltrani that she wished to withdraw the complaint and reconcile with her husband.

According to Mrs. Foley he said thaI that

Beltrani has done nothing. As a result of his negligence and failure to obtain the protection of Ihe Bankruptcy Coun Mrs.

The Supreme Coun did not find

Arrowood's vehicle was repossessed, as

Nichols filed Mr. Bowden's brief, he filed a Motion to Amend following the Attorney General's request that he be required to comply with Supreme Coun Rule 4-3(h).

TI,e final version of Ihe brief that Nichols filed for Mr. Bowden was filed over ten months after it was initially due to be filed.

In responding to the complain I, Nichols provided a great deal of informa-

was fine and he owed her some money.

She has been trying since OClober of 1995

to obtain this money and has learned that no complaint for divorce was ever filed.

Mrs. Foley averred that he had on several

路11 Tie .lrimllllMjer 1'111 lUi

was her furniture.

Additionally, Mrs.

Arrowood's ability to maintain continuous

employment has been jeopardized as a result of her creditors contacting her at her job. Beltrani has failed to relurn any portion of Mrs. Arrowood's retainer and she has hired another attorney who is pursuing her legal remedies against him on her

file the brief. Mr. Bowden was notified on these extensions by Court personnel, not

by Nichols. The brief was not filed on or before the date of the final extension granted to him. The brief was filed two month after that date and only after Ihe Supreme ichols in

contempt based on extenuating circumstances involving his daughter. Even after

lawyer disciplinary actions tion about the underlying criminal trial which was not pan of the complaint before the Committee. According to ichols, following the verdict of guilty. he spent three hours going over objections wilh Mr. Bowden. He also explained that following the reading of the verdici he asked to be relieved, but Judge LangslOn refused his request. He averred that he was forced to do Mr. Bowden's appeal and pay for it out of his own funds. It was also his assertion that he filed the brief prior to the Coun's Show Cause notice to him.

Mr. William M. Howard Pine Bluff, AR A leuer of caution was issued to M.r.

William M. Howard for violation of Model Rules 1.3. 3.4(c) and 8.4(d) upon the Per Curiam complaint on appellant Damond Sanford. The letter of caution was filed with the Clerk on August 26, 1997. These Rules state, in pan, that a lawyer shall act with reasonable diligence and promptness in representing a client; a lawyer shall not knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists; and, a lawyer shall not engage in conduct that is prejudicial to the administration of justice.

The facls as set out in the Per Curiam opinion referred by the Supreme Coun are that appellant Damond Sanford was convicted by a jury of capital murder and sentenced to dealh. A notice of appeal was filed. Howard received four (4) extensions within which to file a brief. Although the fourth extension was stated to be the "final"' extension, Howard failed 10 file a brief by January 12, 1997, the final day 10 do so. On February 21, 1997, Howard filed a motion for belated appeal, but it was denied since he did not accept responsibility for the failure to timely file the brief. An order to appear and show cause why he should not be held in contempt was issued. On March 3 I, 1997. Howard entered a gui Ity plea. accepted full responsibility for the failure and offered mitigating circumstances. The Court held him in contempt, fined him and gave him ten (10) days to file the brief.

In his response, Howard stated hi belief that the circumstances leading to the

delay were justifiable. Specifically, he averred that he had never had a client sentenced to death and he became obsessed with trying 10 ovenurn his conviction.

During this time some intervening events occurred necessitating the several extensions. He stated that the sudden death of a friend and his diagnosis of a medical condition that required medication to control all added to his difficulties. The brief was completed, but because the coun reponer did not have a complete transcript the Coun issued a Writ of Ceniorari 10 the reporter in order to obtain a complete record. Howard concluded his response by admitting responsibility.

Mr. Gary Green Little Rock, AR A letter of caution was is ued to Mr. Gary Green for violation of Model Rules 5.5(a), 7.1(a) and 7.I(b) upon the complaint of Eugene Stone Forrester, Jr. The letter of caution was filed with the Clerk on August 26,1997. These Rules state, in pan. that a lawyer shall not practice law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction; a lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services, omitting a fact necessary 10 make the statement considered as a whole not materiaUy misleading: and, shall not make a misleading communication that is likely to create an unjustified expeclalion about results the lawyer can achieve, or state or imply that the lawyer can achieve results by means that violate the rules of professional conduct or other law.

Mr. Forrester is an attorney licensed and practicing in Tennessee. He and his wife were involved in an automobile accident in Shelby County, Tennessee, where they reside. Within 30 days of the motor vehicle accident, Mr. Forrester received written communication form Green wherein he attempted to solicit his legal business. This communication violates a Tennessee Disciplinary Rule which prohibits such communication within 30 days of an automobile accident. Green's correspondence offers his assistance. help, and quick. aggressive action in dealing with the situation. His correspondence gives

the impression that he can provide legal services to Mr. Forrester in Tenne see.

No-where in the correspondence did he advise that he was not licen ed 10 practice law in Tennessee.

Green admitted in his response that he is not licensed to practice law in Tennessee. He denied engaging in the practice of law there and funher, denied that he was subject to regulations of the legal profession in Tennessee. He specifically denied that he made any false or misleading communication about his law firm.

He also closed his response by assening that he had ceased direct mail marketing in Tennessee. He also asserted his disbelief that anything in his correspondence was misleading to Mr. Forrester since he is an attorney licensed in Tennessee.

Mr. Richard J. Orinlas Lillie Rock, AR A letter of caution was issued to Mr. Richard J. Orintas for the violation of Model Rule 4.2 upon the complaint of Frank B. Newell. The letter of caution was filed with the clerk on Augu t 26, 1997.

This Rule states that in representing a client, a lawyer shall not communicate about Ihe subject of the representation with a pany the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.

Mr. ewell represented Dean Marvel Construction Company in a Workers Compensation mailer.

Dean Marvel Construction Company was the respondent employer. Orintas represented the claimant employee in that matter. He sent Mr. ewell's client a letter in which he demanded remittance of attorney's fees.

In this same letter, Orintas also threatened a garnishment action if he was not paid by Mr. ewell's client. Mr. Newell was not sent a copy of this letter. After learning of this correspondence, Mr. Newell wrote Orintas and insisted that he cease communication with his client. Despite thi .

Orintas again sent communication directly 10 Mr. ewell's client.

In responding to the affidavit of complaint, Orintas asserted thai he contacted Mr. Newell's client directly only because

flllilli Tl! .Irbml In]ff Ii

lawyer disciplinary actions Mr. ewell had not responded to his earlier letter to him. His letter told Mr. Newell what action would be taken if the issue of attorney fees was not settled. He also asserted that he never received the letter

from Mr. ewell advising him n01 10 contact his client. He averred that his first notice of the lelter was when he received the fannal complaint from the Executive

tingent fee agrecment shall be in writing.

Mr. Thornburgh hired McKinnon during August of 1991 to represent him on a Workers Compensation matter, a Social Security Disability mattcr, and a personal injury matter. McKinnon's client's understanding of the fee arrangement for the personal injury case was that there would not be any attorney's fee unless a recovery

dispute could nOI be settled because the

was had. That is a fee contingent on the

injury claims.路:路

Director. He explained to the Committee that it was his belief that the complaint

outcome of the legal matter. However. Mr.

was personal, not substantive.

Thornburgh did not execute any written

Ms. Laura J. McKinnon Fayelteville, AR A letter of caution was issued to Ms.

Laura J. McKinnon for the violation of Model Rule 1.5(c) upon the complaint of John M. Thornburgh. The letter of caution was filed with the clerk on August 29, 1997. This Rule states, in part, that a con-

agreement was never put in wrinen fonn.

In response to the affidavit, McKinnon

acknowledged that she did not have a writt.en contingency fee contract to present

she could not prove one was ever entered

into relating

10

Mr. Thornburgh's personal

contract or document in regard to the fee arrangement for the personal injury representation.

In June of 1993, Mr. Thornburgh became dissatisfied with McKinnon's services and tenninated her representation of him in the personal

injury matter. Upon being notified of the tennination, she sent notice of an aUorney's lien. A dispute arose about tenns of

her agreement with Mr. Thornburgh. This

RE: Estate of Carmen K. (C.KJ Powell We represent the surviving widow of Carmen K (CK) Powell, a resident of North Little Rock, Arkansas who passed away on July 8, 1994. Anyattorney who was ever contacted by Mr. Powell to prepare a will, drafted a will for Mr. Powell, or who knows of any attorney who may have been contacted by Mr. Powell to draft a will, please call or write our office.

Deininger & Wingfield 1405 Pike Avenue North Little Rock, AR 72114.

(501) 372-3843 or FAX (501) 375-6298. ,II

T~

lrkllw Ll~j/r Fall Illi

(0

the Comminee specifically referring to the personal injury maner. She agreed that

In Memoriam County Municipal Judge in 1977.

Hartje became a circuit court judge in

1979 and immediately won the reputation

As an example of the eternal boy in Tommy, a partner's 10-year-old was

Lewis Hartje; four sons, George Hartje ITI

entrusted for the day. She later reported to

of SI. Louis, Bryan Hartje of Conway, Stephen Hartje of Momgomery, Ala., and Robert Hartje of Little Rock; two stepdaughters, Marsha Gilbertson Lewis of Little Rock and Robin Lewis Johnson of Pittsburgh; a sister, Marilyn Moores of Russellville; and seven grandchildren.

her parents thai she had driven her first automobile - a red sports car - down Tommy's grass airstrip.

Thomas Franklin Meeks, Jr. Thomas Franklin Meeks, Jr., 43, of Little Rock, died October 7, 1997. He is survived by his sister Julia Meeks.

Mr. ance was known in many circles - as an attorney, political representative,

Mr. Meeks was a member of the Arkansas Bar Association and was a part-

After receiving his LL.B. at the University of Arkansas in 1951, he established his law practice. He was a long-

ner in The Trammell Law Finn in Little Rock. He had two passions, the law and

erman.

would laugh as he came by, at hyper-

Criminal

Nominations Committee and several others.

Mr. ance was a past president of the Crittenden County Bar Association, and was also a member of the Arkansas and American Bar Associations, the American

He took great pleasure in l1ying a 1947 Luscombe 8A (the first all-metal single-

He died a bachelor, epitomizing the

George W. Hartje, Jr.

scholar. father. friend and an avid l1y fish-

reduced speed, with his arm out the window, waving as if he were cruising Main Streel. He even chose to reside on an air strip in eastern Pulaski County.

minces and sections and in 1995 was a member of the committee which fannulated the SWlldards for ExamillOlioll of Real Estate Titles in. Arkansas.

She is survived by her sist.er, Kay was predeceased by her fom,er husbands, Paul W. Johns and Neil Laidler.

Cecil Boone Nance Jr., a Marion native

and local attorney for Nance & Nance, died recenlly in Memphis.

engine) in circles al eye-level around Pinnacle Mountain. Hi.kers to the summit

aviation which were even greater than the nonnal zeal he had for life, in general.

She

Cecil Boone Nance, Jr.

time member and supporter of the Arkansas Bar Association, having served on the Executive Committee and in the House of Delegates. He was also a member of numerous sections and committees, including Election Law Revision, Constitutional Reform, Defense of

the fLrst women elected lO the House of Delegates. She served on numerous com-

Walton of Wilmington, Delaware.

ally beaten, he would not have been outprepared.

Hartje is survived by his wife Johnnye

of an innovator.

Regina Whitaker Laidler Regina Whitaker Laidler, 70, of Hot Springs died July 16, 1997, at her home.

Regina Laidler was active in Arkansas Bar Association affairs during her forty year legal career. She was a Fellow of the Arkansas Bar Foundation and was one of

client, making sure that if he was eventu-

Indigents.

the

Judicial

Former judicial district judge and prominent Conway anorney and civic

old legal adage that "the law is a jealous mistress." There was no predictability to

leader George W. Hartje, Jr., died in July.

He was 66.

Mr. Hartje had been a practicing attorney for 40 years. He received his J.D. from the University of Arkansas Law School in 1957.

Judge Hartje was a member of the Bar Association from the time he was admit-

his working hours. Tommy could be at the office comfortably at 9:00 p.m.â&#x20AC;˘ but then might l1y to New Orleans to stroll the

Administration Association.

He is survived by his wife, Harriet

French Quarter, or visit a Tennessee bat-

I.er, Janet Nance of Little Rock; a son, Boone Nance of West Memphis; a sister Dorothy Buchanan of Marion; and one

tlefield on a Wednesday afternoon.

He consumed the law in ravenous fashion. Principal reference books had to be at

Judicative

Society

and

the

Judge

McGee Nance of West Memphis; a daugh-

granddaughter. Anna Leigh

ance.

his fingertips, next to his desk.

restaurant, aircraft hangar, and even the

Willard C. Smith Jr. Willard C. Smith, Jr., 54, of Fort Smith died September 23, 1997, in Fort Smith.

Mr. Smjth received his law degree from the University of Arkansas and had

Liaison

local haberdasher who kept him always

practiced law in the Fort Smith area since

as well as many other com-

looking the crisp, quintessential coun-

1969.

mittees.

He served as prosecuting attorney in the 5th Judicial District and was in private practice, after which he was appointed by

selor.

He was bitten by the challenge of talking to a jury. On the eve of a trial, you

A continuous member of the Bar Association, he was admitled to practice before all courts in the State of Ark~Ulsas:

would find Tommy walking around a small town in Arkansas, talking to his

the Supreme Court of Arkansas, the continued on page 48

ted to practice. He was elected as a mem-

Tommy insisted that anyone hired in

ber of the House of Delegates and served including the Unauthorized Practice of

his law firtn be an "exact fit," and they became his family. He had been "adopted" by many friends: at his favorite

Law, Lnsurance Law, International Law

on numerous sections and committees

and

the

Committee~

Judicial

Council

then Gov. David Pryor as a Faulkner

flassifird .\dwl'tising

In Memoriam continued Federal Courts in the Eastern and Western Districts of Arkansas and the Court of Claims, the Court of Customs and Patent Appeals, the Tax Court, the Federal Bankruptcy Courts of Arkansas and Oklahoma and the Supren;e' Court.

Mr. Smith and his wife, Nancy, have three children: Tripp, Katie and Collier.

He is also survived by his mother, Catherine Hoge Gilman of Fort Smith; and two brothers, Arthur Hoge Smith of Portland, are., and David Rollins Smith of Midland, Texas.

Judge J. Smith Henley Judge J. Smith Henley was born in Sl. Joe, AR on May 18, 1917, to Ben H. and Jessie Genoa (Smith) Henley. He died Saturday, October 18,1997, at his home in Harrison, AR. Judge Henley was appointed United States Circuit Judge for the Eighth Circuit Court of Appeals in March 1975 and took senior judge status in May 1982. He began his career as a judge in October 1958 when he was appointed United States District Judge for the Eastern and Western Districts of Arkansas. He served as Chief Judge of the Eastern District during his entire tenure on the district bench.

Judge Henley received his L.L.B. from the University of Arkansas at Fayetteville in 1941 and engaged in private practice in Harrison, AR with the firms of Moore & Henley and Henley & Henley from 194154. A continuous Bar Association member since 1954, Judge Henley was a former referee in Bankruptcy for the Western District of Arkansas, 1943-45; Associate General Counsel, Federal Com-

munications Commission, 1954-56; and Director of the Office of Administrative Procedure, Department of Justice, 195658. He served as a member of the Judicial Conference Subcommillee on Supporting Personnel, 1975-77, and the Advisory Committee on Appellate Rules, 1978-84.

Judge Henley was a Fellow of the Arkansas Bar Foundation. In 1984, the Judge J. Smith Henley Scholarship was eSlablished in his honor with the Arkansas Bar Foundation.

EXPERT Expen testimony provided which relates to the Administration of programs for persons with mental retardation or developmental disabilities. Panicular emphasis on the propriety of policies. procedures and individual lreatment in institutional and community living settings related to risk management and compliance with state and federal regulations. William A. Lybarger Ph.D., 316-221-6415.

SECURITY NEGLIGENCE Special expenise in premise liability, security training and security procedures. Authored four securilY textbooks. Thiny years combined experience in security and law enforcement.

Contact Ron Vause 1-800-728-0191.

Judge Henley will be remembered as one of this country's great jurists. His decisions helped to desegregate the Lillie Rock schools and refornl the Arkansas prisons.

He is survived by his wife of 59 years, Dorothy Ingram Henley; daughters, Wordna S. (Mrs. Tommy) Deere, and Jane K. Henley; grandsons, Jesse T. Deere and David E. Deere and his wife, Katie.

SKIP TRACINGILOCATOR Need to find someone? Will locate the person or no charge/no minimum fee for basic search. 87% success rate. Nationwide. Confidential. Olher attorney needed searches/records/repons/services in many areas from our extensive database. Tell us what you need. Verify USA. Call roll free 888-2-Verify.

The Arkansas Bar Foundation acknowledges with grateful appreciation the receipt of memorial gifts and scholarship contributions given in memory of the following individuals from July L, 1997, Ihrough OClober 25, 1997:

FOR SALE: Sel of up-to-dale (as of 6-97) Arkansas Code Annotated wilh pocket pans and supplements. Cost new - $950.00. Sale price of $600.00. Call (SOt) 783-1186.

DONALD J. ADAMS SCHOLARSHW FUND, IN MEMORY 0'- DONALD J. ADAMS

Bellye L. Curtis IN MEMORY 0'- MRS. BOYCE DAVIS

Judith Gray Walter R. Niblock

PAGE

IN MEMORY 0'- COREY DENNIS

Judge William R. Wilson, Jr. IN MEMORY 0.- GLENDA HUIE

Judge William R. Wilson, Jr. IN MEMORY 0'- REGINA LAIDLER

Judith Gray IN MEMORY 0'- ROBERT R. LE.-LAR

Ronald A. May IN MEMORY 0'- TRAVIS MATHIS

Comer Boyett, Jr. IN MEMORY 0'- C.B. NANCE, JR.

Justice John A. and Annis Fogelman Mr. and Mrs. Julian B. Fogelman IN MEMORY 0'- SELMA RATLEY

Judge James M. Moody IN MEMORY 0.- ROGER SIMPSON

Judge William R. Wilson, Jr. BERNARD

AND

BUD

WHETSTONE

SCHOLARSHtP FUND, tN MEMORY 0.DALTON WHETSTONE

Judith Gray Adrienne H. Brietzke

AT&T LandTed1 Dala Great Amer~ Insurance David Miller Legal Nurse Consullant D~ly &Woods John T. Bates Molly Ply Investigations AI~a Thorne-Corke LOIS, Inc. McAllister Neblett, Beard, Arsenaull Paul D. Mixon Robinson, Wood P.L.L.C Legal Directories Publishing Medical Research Institute Mike Thompson AccountanVEconomic Analysis ADR,lnc.

Bridges, Young &Matthews Jim Hall Baim, Gunti Professional Mediation/Arbitralion Mark Perdue' â&#x20AC;˘

2 8 12 14 17 18 19 19 20 21 26 27 28 29 32 33 35 36 37 38 41 41

43 48

'What's in it for my firm?'

• a managlng partner might rightly ask.

Why theCNA acquisition of Continental Insurance

The CNA Insurance Companies became one of the largest writers of lawyers professionalliability insurance in the nation earlier this year with their acquisition of Continental Insurance Co. The CNA member companies now insure over 50,000 attorneys in 49 states.

The Merger makes the CNA more valuable both to the firms we now insure and to those that are considering our coverage. · Combined underwriting expertise enables us to price policies more flexible for small as well as large firms.

IS Important

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· Enhanced resources will improve responsiveness and service.

•

•

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For firms not insured with CNA, we can demonstrate how we will perform for you.

Call Rebsamen for more information.

Telephone (501) 664-8791 Fax (501) 664-9487

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

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

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