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VOLUME 33, NUMBER 4 PUBLISHER Arkallsos Bar Association

Phone: (SOl) 375-4606 Fax: (SOl) 375-4901 Homcpage: www.arkbar.oom E-Mail arkbar@ipa.net ARKA,"S~S

on en s

BAR ASSOCIATIO,"

-l00 \\ \larkham little Rock, \rkansas 72101 EDITOR Adritfllle H. Brietw ASSOCIATE EDITOR Sam l.Jmdis EDITORJAlBOARD

David H. Williams, Chair Wiley A. Branton Thomas M. Carpenter Morton Gitelman James C. Gran's Thomas H. McGowan AI Schay Jacqueline S. Wright

Philip S. Anderson - A Tribute

OFFICERS President Robert M. Cearley, Jr. President-Elect

Louis B. Jones, Jr. Immediate Past President Jack A. McNulty Secretary -Treasurer H. Murray Claycomb Executive Council Chair Philip E. Kaplan Young Lawyers' Section Chair Gwendolyn D. Hodge Executive Director Don Hollingsworth Associate Executive Director Judith Gray EXECUTIVE COUNCIL

J. Ray Baxter Robert M. Cearley, Jr. William M. Clark, Jr. H. Murray Claycomb F. Thomas Curry Thomas A. Daily Thomas F. Donaldson, Jr. Lynn M. Flynn Ron D. Harrison Dave Wisdom Harrod Gwendolyn D. Hodge Alice L. Holcomb Don Hollingsworth

Louis B. Jones. Jr. Philip E. Kaplan Knox B. Kinney Thomas D. Ledbetter Jack A. McNulty Marie-Bcmarde Miller Michael W. Mitchell Harry Truman Moore Charles C. Owen Brian H. Ratcliff Sleven T. Shults James D. Sprott Carolyn B. Witherspoon Tht Arkalls.u um.ry" (Usrs 546-040) is publiShed quarterly by the Arkansas B.1r Association. Periodicals postage paid at Litlle Rock, Arkansas. POSTlIoIASTER: send addll'$S changes 10 1'111 A,hllsl1s laW楼", 400 Wl$l MilrkMm, Uttle Rock, Arkansas 72201. Subscription price to noo-members Or the Arkans,lS 8M Association $25.00 per year. Anyopmion expressed herein is that or the author, and not necessari路 Iy that of the Arkansas Bar Association or 111.. Ark...,slIs UllVyu. Contributions to 'fll.. ""kll/rSIIS l.lIwy"" are welcome and should be sent in two copies to EDITOR. nre A,kllllS/IS l.awy..', 400 West Markham, Little Rock, Arkansas 722Ql. All inquiries regarding Mlvertising should be sent to Editor. Thl' A,kllnslIs Lllwytr at the above address.

Copyright \998, Arkansas Bar Association. All rights reserved.

by Richard S. Ama"l On the Cover: American Bar Association President Philip S. Anderson at his office in Little Rock. Photograph by Dixie Knight Photography.

8

Supper, Elephanls and Phil's Plan

by D.P. Marshall, it:

12

JUVENILE JUSTICE The GaleKeeper: A Juvenile Justice Role

18

by Judge Gary Isbell

Juvenile Offenders in Arkansas

22

by Paul Kelly

A Road Map to Juvenile Court

by Gerard F. GIYIIII

28

My Client is a Child!

by J. LeOIl JOhllSOIl

30

Can You Be A Good Lawyer When Your Client Needs a Social Worker?

by Marcia Mcivor

32

PRESIDENT路S REPORT, by Rabert M. Cearley, JT.

2

EXECUTIVE DIRECTOR'S REPORT, by Dall Hollillgsworth

3

LAW OFFICE TECHNOLOGY,

by J. Michael Jimmesoll

4

JUDICIAL ADVISORY OPINIONS

39

JUDICIAL DISCIPLINARY ACTIONS

40

LAWYER DISCIPLINARY ACTIONS

41

IN MEMORIAM

54-55

CLE CALENDAR

54

CLASSIFIED ADVERTISINGIINDEX TO ADVERTISERS

56

"I'I'sidl'lIt's Rl'plll't

Racial and Gender Bias Leading by Example

by Robert M. Cearley, Jr.

In 1962 an African-American man was

Arkl1flSllS Lawyer in the spring of 1992. In

convicted of comcmpr for refusing (Q sit in the section of the courtroom "reserved for Negroes." The conviction was reversed by the U.S. Supreme Coun in a per curiam opinion. Johnson v. Virginia, 373 U.S. 61 (J 963). The next year an African-American female witness was held in contempt for

1997 the Associarion, again through the Commirree, commissioned a study to determine how women and minoricy lawyers were perceived by the public at large. Sheila Campbell and Supreme Court Associate Justice Roben L. Brown, co-chairs of the Commirtee, presenred the results of rhe study in The Arkansas Lawyer in the fall of 1997. The results are discomfiring. The studies confirm that vestiges of racial discrimination linger in our courrs and our profession and that women have yet w achieve equaliry in our legal sysrem. This reaJiry is reflected in the public's perceprion of us, our judges and our courrs.

refusi ng to answer questions from a prose-

cutor because he called her by her first name. The U.S. Supreme Court reversed the conviction without opinion. Hamilton v.

A/abama, 376 U.S. 650 (I964). Enactment of the Civil Rights Act of 1964, the Equal Employmcm Opponuniry Acts of 1972 and 1974, a multitude of stare and local ami-dis-

crimination measures combined with political, economic, and social pressures in ensuing years wroughr a sea of change in anirudes, yer gender bias and racial discriminarion remain a blighr on our sociecy and a barrier w equal rrearmem in our legal sysrem. In 1986 rhe U.S. Supreme Courr declared thar rhe Equal Prorecrion Clause prohibirs rhe sysremaric exclusion of jurors based solely upon race. Bllfson v. Kentucky, 476 U.S. 79 (1986). Vet it was another rwelve years before Batson's rarionale was exrended w prohibir discriminarion in jury selection based solely upon gender. IE.B. v.

Alnbama ex ref. T.B., 511 U.S. 127 (1994). \Xlithin our own profession women and minorities still struggle for equal rreatmenr.

Dozens of reports over the last two decades by special commirrces of srare and local bars, federal courrs, and the American Bar Association rell us rhar we have nOt eliminated discriminarion in our own ranks. In 199) rhe Arkansas Bar Associarion, through irs Comminee on Opporrunities for Women and Minorities in the L1W, instirurcd a comprehensive survey ro determine how women and minorities were perceived within rhe legal profession. The results were discussed by rhen Execurive Direcwr \Xlilliam A. Marrin in two issues of The

Thr Irlmall,a\\!rr

101. ~~ 10. Ifrall199S

At

the

recommendation

of

rhe

Comminee, the House of Delegates of the Arkansas Bar Association in June of this year vorcd ro petirion rhe Arkansas Supreme Coun ro establish an ad hoc task force to assess the need for either (1) rule changes in the Model Rules of Professional Conduct and rhe Code ofJudicial Conducr to address the problems of fairness within the legal sysrem, or (2) a Supreme Courr Commirrce on Race and Gender Fairness ro address any lack of fairness, both inside and oll[side of the legal community. The petition asks rhar the task force repon ro the Coun within six monrhs.

The objective of [his effon is ro enhance awareness that gender and raciaJ equaliry are important goals and that rhose who serve our legal system should strive ro ensure rhar all persons are treared equally in our profession as well as in our courts. The American Bar Association, rhrough irs Standing Commirree on Ethics and Professional Responsibiliry, has proposed revision of Rule 8.4 of the Model Rules of Professional Conducr ro expand the definition of "unprofessional conduct" to include manifesring "by words or conduct, bias or prejudice based upon race, sex, religion, national origin ... " and orher similar factors. The

Code of Judicial Conduct already prohibits such conduct on the parr of the judiciary.

Canon 3B(5) and (6), Arkansas Code of Judicial Conduct.

Recently, I heard a friend, an AfricanAmerican female lawyer, relate how in 1996 she was rumed away from a judge's chambers in south Arkansas by a coun bailiff who told her, "Defendants are not allowed in chambers." Arriving in court on anorher occasion to try a case, she was asked ro display her business card before being recognized as a licensed lawyer. The law can erase blatanr patterns of racial and gender discrimination in [he legaJ system, but unconsciously held stereotypes and unthinking expression of unconscious bias and prejudice establish barriers and limit opporrunity as surely as a "whites only" or "men only" sign on the door. Real eqllalicy will only come about through increased awareness and change in arritlldes. We can neither afford nor rolerare vesriges of discrimination in our COUfrs or in our profession. I am hopeful that rhe Arkansas Supreme Coun will gram the Association's Petition and lend its Stature to this exercise of self-srudy and self-improvement and encourage all members of the bench and the bar ro lead by example.â&#x20AC;˘:.

Editor'; Note: On October 7 the Supreme Court of Arkamm granud the Petition of the Arkansas Bar &ocinrion and appointed a Supreme Court Task Force on Rna and Gmder Fairness. The mrmben are Bmdlty jmoll. Hon. joya \\7I1"m. Hon. Don Gloller, Margaret Woolfolk. alld Katherine Gay. The pll1-pOU ofthe Msk Force is to examine thr need for rule changes ill the Arkansas Model Rilles of Professional Conduct and Code of judicial Conduct.

E\I'l'Ilt i\l' Ilil'l'ft Ol''s IIl'pOl't

Some Misperceptions by

During my first (Wo years as your Association's Executive Director, I have encountered a number of misperceptions about our Association and the legal profession. Many misperceptions relate to the voluntary nature of the Arkansas Bar Association, and they could be the subjecr of multiple columns. I share the following three because of their timeliness.

MOST LEGISLATORS ARE ATTORNEYS Soon after I became Executive Director a public relations friend inquired about the Arkansas Bar Association and our work with the Legislature. A comment was made about our Association working with the many attorney members of the Legislature. I asked my friend, who has represented clients in the Legislature, how many legislators are attorneys. Her response was that about 50% are anorneys. This is similar to estimates I have heard from fellow attorneys.

In the las, (1997) legislative session ,he percentage of atwrney legislators was 21 %.

Out of 100 House members, there were 14 atcorneys. In the 35 person Senate, there were 16 anorneys. This is no differem from the trend in other states - fewer and fewer attorneys are running for and serving in legislative bodies.

We must do a bener job of recognizing and supporting our attorney legislacors. As importantly, we need to encourage more attorneys to run for public office.

o

LY MEMBERS IN THE WESTERN BAR DISTRICT VOTE IN THE UPCOMING ELECTION FOR PRESIDENT-ELECT This misperception is common among younger attorneys, especially since the Arkansas Bar Association may nor have a contested election for President-Elect for several years running. But we are assured of such a contest this fall with at least two can-

Don Hollingswonh

didares: Mike Crawford from Hot Springs and Ron Harrison from Fr. Smith. The closing dare for nominating petitions is November 16.

All Association members will receive a ballot for this important election. (Law S[Udents who belong to the Law Student Section of our Association do not vore in these elections.) The significance of the Western Bar District is that undet our Constitution, it is the rotation turn for the next President-Elect to be from this District.

We have five bar districts: western, northern, eastern, southern and central.

THE ARKANSAS BAR ASSOCIATION IS A PULASKI COUNTY DOMINATED BAR ASSOCIATION This perception will likely be with us for eterniry. It arises naturally from the concentration of Association members in Pulaski Counry and the location of the Arkansas Bar Center in Little Rock. The Bar Center is the home of both our Association and the Arkansas Bar Foundation, our sister organization.

At the end of the 1997-98 bar yea" there were 1597 members of our Association in Pulaski Counry. (The central bar district is comptised solely of Pulaski County.) This represenrs 43% of our instate membership for 97-98. The next three counties ranked as to membership were Washington with 376 members. Sebastian with 215, and Bemon with 152.

Based upon personal observations I can attest ro the efforts by President Bob Cearley and his predecessors [Q involve more members outside cenrral Arkansas in Association leadership positions, projects, committees and other activities. I n response to the travel distances for some members ro attend meetings in Little Rock, we have been improving rhe coordination of meeting times and dares for members, and when appropriate, we are conferencing members

via relephone. Little Rock remains the prime choice for most Association activities because mOSt members outside central Arkansas favor it as the most convenienr location.

A little known fact is that the composition ofour tWO governing bodies, the House of Delegates and the Executive Council, is weigh red against Pulaski Counry to provide adequate representation to the membership throughour the state. In orher words, Pulaski County does not have 43% of the House of Delegates or the Executive Council. The same is true with standing committees such as Jurisprudence and Law Reform, and the Legislation Committee.

We are working on new effons to increase geographical diversity, especially in CLE. Next fall (1999) the Arkansas Bat Association will reestablish the Fall Legal Instirute in northwest Arkansas. Our officers have decided to conrinue the midyear meeting in Memphis. The Annual Meeting will continue to be held in Hot Springs, and both governing bodies conrinue to meet around the state. \Y/e welcome your opinions on how our Association can be more responsive to all members. \Y/e encourage the parricipation of attorneys throughout Arkansas. -:.

v'It Out: :"1\\' 1;11' \kmhcl"': IF\IS-:\F\IS III "'"111ill~ \\""""h' lllt'mht'r, of tilt路 :\rkan,a..

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Developing Your Case With Electronic Notes

by J. Michael Jimmeson The difference bcrween a good litigator and a great one is preparation, bur roo onen we learn this lesson in the school of hard knocks. The same reasoning applies to technology usage in your litigation practice.

Managing and developing your case by using technology can prove the difference between winning and losing.

repository set aside for the case. Consider requesting copies of any pleading filed by the other side in electronic form. You can accomplish this by offering to do the same.

If interrogatiories and answers are filed, mese should be converted to electronic form for easy retrieval and cross-referencing.

CASE MANAGEMENT CASE EVALUATIO

When you begin researching the law, using either automated legal research (AiR) or the Internet, you can quickly determine if there arc any holes in your case and check for expert witnesses that you might consulr.

Also, you can check for similar cases or faCt slruanons to your case. If your research locates any useful information, capture this data in electronic form. Doing so will allow you to quickly retrieve that information without pawing through sheaves of legal pads and random nores. Too often, we capture critical details on a yellow pad or PostIt nore, throw it in the file (hopefully) and promptly forget ir. If you organize the case and its information from the ourset, you will have inseam access to anything bearing on [he case.

If you are not using a document management program, you will have to make do using a system of file directories (folders) and file-naming conventions. Create a central directory for all your documents (e.g.

C:\Data). Then create a subd.irectory for each of your clients (e.g. C:IDataISmith). If yOll have more than one matter for anyone client, create additional subdirectories. This system will make it easy for you (or your secretary or paralegal) to find client documents quickly. In the event that the folder gets too large, consider creating separate subfolders for pleadings, deposition transcripts, memos, etc.

Windows 95/NT users can take advantage of long file names when creating documents. A file named "Smith Complaint -First Amended.doc" is certainly easier to locate and recognize than one named "smithcmpl.doc." \Vindows 95 also provides the ability to find documents by file name or conrems across your hard disk. You have the tools - use them.

Some specific software tools can prove invaluable in handling a hefty docket. Case management software can track the entjre course of the case, apprise you of impoHant deadlines, and organize random notes and key issues. The calendaring system in these programs often provides reason enough for purchase. Malpractice carriers have even begun requiring electronic docketing and calendaring systems.

PLEADINGS

DISCOVERY

Narurally, you will use a word processor ro draft the complaint (or answer) as well as any motions. Take the time to collect these pleadings in electronic form in a central

The discovery process is the ideal environment for using technology. Never leave a completed deposition withom ordering a copy or the transcript on a diskette. The

You can begin ro apply technology rools at the inceprion of every case. Before you rake on a new case, of course, you investigate rhe facts and determine rhe applicable law. During your investigation, create an "electronic note" that derails the facts of the case. These early notes can serve as rhe basis

for your trial notebook, derailing rhe

avail~

able factS and those requiring further development. Some litigarors begin preparing their closing argumenr and presenratjon at the very inception of the case, honing and refining them up until the momenr of trial.

RESEARCH

COSt of an electronic transcript is minimal and can be quickly recouped when searching for critical information. Rather than spending hours pouring over a deposition for a ceHain bit of testimony, search me transcript in seconds using your computer.

Your client will appreciate the cost-savings.

Also, in certain situations, you will need the transcript on a short turnaround. Many court repoHers are using real-time transcription to create transcriptions as the deposition proceeds. If you are linked to the COUH reponer's computer, you can see the questions and answers as they are given. At the end of the deposition, the courr reponer gives you a diskerre that you can immediately use for the next day's deposition hearing or trial. Taking advantage of these timesaving methods can provide a winning advantage. If the other side is not using these tools, you have gained the edge in preparation. If the other side is using rhe latest technology, you may be committing malpractice if you are nor.

DATABASES In more complex cases, you may need to create documenr or image databases or use litigation suppOrt tools. You must decide early if this technology is appropriate in rhe case at hand. You should always err on the side of caution. Better to be over-prepared than to be caught shorr just before trial. If you suddenly have to organize hundreds of thousands of documents just before trial, you will nor be able to do 50 adequately if you wait till the last minute. Deciding when ro use technology is JUSt like applying any other resource to the litigarion process.

The key question is wherher the COSt of the resource (technology) can be jusrjfied to the c1ienr as necessary in pursuit of the claim.

DAMAGES

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101.11 Xo. 1/1'a1l1Y98

During pre-trial, you can contlllUC to apply technology mols to the case. Evaluate the damages using a simple spreadsheet program. This is an effective way ÂŁ0 summarize the various elements of the damages claim

and to make updates right up to the day of trial. In cases involving structured settlements, a spreadsheet can help evaluate various "what-if" scenarios.

ELECTRO IC TRIAL NOTEBOOK By this stage, you should have assembled an electronic file of the pertinent precedents and authorities. This information will prove invaluable as you prepare your electronic trial nO[ebook that setS forth the elements of the case that must be proven in order to prevail. Missing an element of proof is a recipe for disaster, but an electronic checklist or outline can prevent such a grievious error.

Case authorities are also valuable in preparing non-standard jury instructions. Cases are often won or lost on the instructions and tOO often lawyers wait until the last moment to prepare them.

PRESENTATION SOFTWARE DURING TRIAL During the trial, you will have several opportunities to apply technology when presenting your case. Presemation software is extremely useful in outlining your points as you develop your argument. However, you must be comfortable using the technol-

ogy and you should always have fall-back position if things go awry (remember Murphy's L1W). AJways check the courtroom facilities in advance of trial and get the judge's permission before using any rechnology in the courtroom. If possible, have an assistant with you to run the computer while you are presenting to the jury. If you

are a solo, this could be your secretary, legal assistant or law derk. If you attempt to do everything at once during trial, you will like-

Iy fail ro do anything well. Only an accomplished litigator who is extremely comfort-

able with technology and the tools would attempt to do a trial without an assistant.

And even the experienced person would

probably still Opt for help.

CO CLUSIO If you have a litigation practice, you must begin preparing your case at the very outset

using technology rools. This method will give you complete mastery over all aspects of the case and keep you organized at every step along the way. If lawyers make one mistake using tedmolgy, it is that they Start

too late. So don't delay - get going! .:.

"

â&#x20AC;˘

I ar"

at the Arkansas Bar Association Annual Meeting June 10, 1999 Arlington Hotel, Hot Springs Michael E. Tigar is a rare and gifted teacher and trial lawyer whose uncompromising passion for justice has led him to the counsel tables of such notable clients as Angela Davis; The Chicago Seven; former Texas Governor John Connally; accused Nazi War Criminal, John Demjanjuk; and Oklahoma City bombing conspirator, Terry Nichols.

The cases he has tried, and their verdicts, have had a profound impact upon the modem body of American law.

Mark your Calendar! Plan to Attend.

Michael Jimmeson is a technology consult with AJtman Wei!.

fil.ll St. IIFIII 19!8

fhe lrklllll LI~lrr

~

ER OF YOUR MEMBERSHIP •• • ••• ••

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.

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

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

Call Rebsamen at 501-664-8791 for professional liability (5% discow1t for members) and member group rates for accident, disability and term life.

IN THE ARKANSAS BAR ASSOCIATION MEMBERS RECEIVE A SPECIAL DISCOU T

Ten practice handbooks on CD-ROM from LOIS and in print and disk from this Association. The 1998 version of the Arkansas Form Book is now available. To order, call the Association at 501-375-4606 for print or disk versions or call LOIS at 1-800-364-2512 for CORaM.

UPS gives Arkansas Bar Association members discounts and quick response time. Call 800325-7000 and identify yourself as a member of the Arkansas Bar Association, or use accowlt #50000700360.

•

The MBNA Platinum Plus MasterCard includes a card with the Arkansas Bar Association logo, no annual fee, miles plus option, a low APR, and travel services. Call 800-847-7378.

• TI,e NewsBlIlletill • The Arkansas LawJler • Legislative SlImmary From the Hill • Guide to Arkansas Statute of Limitations • Annual MemQership Directory • The Arkansas Law Review • TI,e UALR Law JOllrnal Brochures on Law-Related Topics are available for members to share with clients or civic groups.

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

The Arkansas Bar Association has historically worked to secure adequate funding of the court system, to revise outdated laws, and to provide needed legal information to the public.

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

NEW! This Association has endorsed the American Bar Association's program. It offers options, stabili ty, and comprehensive services.

Call 800-826-8901 or visit the website at http://abra.ris.ssga.com

In coming weeks members of the Arkansas

Bar Association will be seeing information about the Lexis-Nexis online legal research benefits, which will be provided to Association members at a discount.

PHILIP S. ANDERSON -ATRIBUTE To write 300m Philip S. Anderson is a (ask both easy and pleasalll. I should begin, however, with full disclosure: Phil Anderson is my friend, in fila one of my best friends, and has been for almost 35 years. So you may think that what I have to say is biased in his favor. Bias, in fact, I will readily admit; but that the bias has affected my judgment about Phil Anderson, I do nor con路 cede.

His record of service

(0

the public as a

member of the bar and as an exemplar of what lawyers should be is of such manifest distinction that no one can deny it.

The immediate reason for these comments, of course, is Phil's investiture as President of the American Bar Association last August 3 at the annual meeting of the Bar in Teromo. Here I have to digress (0 express a linle pride in the Smte of Arkansas. She is a small scarc, as the saying goes (son 00, but there arc (hose who love her, and I coum myselfamong th:n number. \Vle have many reasons (0 be proud of our Stare, and Phil

BY RICHARD S, ARNOLD S Tbr Irlaosal "all)/[

101. n .\0. IlFall199S

Anderson is exhibit A. I have nOt taken the trouble to run down the roSter of presidents of the American Bar, but I venture to say mar no State has had more presidents per capita than Arkansas. From Uriah M. Rose to Edward L. Wright (of whom more later) to Philip S. Anderson, there is much of which we can be proud. And I was proud [Q be in Toronto for Phil's ascendancy.

As the reader wjll already have seen, these remarks will be highly personal in nature. But how could they be otherwise, given the fact that I am writing about someone who has been my dose friend for such a long time? Perhaps the readers can pardon the personaJ pride that I feel in my friend's achievement, and read on for a little bit, at least, in order to learn some of the reasons.

In the first place. Phil is the model of what a lawyer ought [Q be. He represents his diems. He knows whose side he is on. He makes every argument reasonably available within rhe bounds of ethics co defend his client's cause. He loves to try cases, especially before juries. He knows how to ralk to juries, and does so without condescension.

He loves complicated subjects, like securities law and ami trust law, bur knows how to communicate them to juries, and, yes, even [Q judges, who know very linle about them. And in doing all of this, he does not deviate, even by a jOt or a tittle, from the truth. That is the calling of the triaJ lawyer, and Phil Anderson is at the top of this calling.

At the same time, he knows that a lawyer is nOt simply the pawn of the diem. The lawyer has an independenr, a civic, function co perform. In that phrase which lawyers srill love to use, a lawyer is an "officer of the COUrt." The phrase is intended to convey. however imperfecrly, that lawyers are not simply mouthpieces for private causes, though on occasion they are that. But they are more than char:. They are, or should be, proponents of civic virtue. They explain to the public thc workings of government, the importance of citizenship, the necessity of reverence for law. In all of these ways, as well as in his private conduct in the representation dients, Phil Anderson has been a lawyer par excellencc. He has shown in his own personal life how lawyers (though this is not easy) can represent their diems' privatc causes with zeal, and still promote the public cause of reverence for law as an ideal.

Each presidenc of the American Bar Association, within the short year of his or her tenure, has a right to select a theme, or themes, for emphasis. It is selfish of me, I am sure, bur I

Left: Phil and Missy on a lrip to France.

or

~

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~ ~

-...... ~ 101. U,10. Ilf'ali 1995 Thp ,Irhosal LallW

9

take parricular comforr in the fact that Phil Anderson has selected as one of his themes the independence of the judiciary, federal and state.

To take the federal side as an example, because I'm more familiar with it, il is a commonplace of our constitutional system lhat federal judges are appointed during their good behavior (which usually means for life), and thal they may be removed only for such causes as would justify impeachment - as the Constitution says, "Treason, Bribery, or other high Crimes and Misdemeanors." It was early established, at the impeachment trial ofjustice Samuel Chase of the Supreme COlin of the United States before the Senate, that deciding cases in a way considered ro be wrong by a majority of the Congress, or of the people, is not among those "high Crimes and Misdemeanors" that the Framers had in mind. If you don't believe me, rake a look ar a book called Gr.lnd Inquests by Chief JuStice William H. Rehnquisr. The book is composed of rwo chapters, one about rhe impeachment of jusrice Chase, and the mher aboul the impeachment of Presidenl Andrew Johnson.

In the trial of Justice Chase, a targer of virulelU ami-judicial propaganda by some of Presidem Jefferson's more extreme supporrers, rhis principle emerged: judges can he wrong, even terribly wrong, in their decisions in individual cases, but simply being wrong isn't a good enough reason ro turn them OUt of office.

Otherwise, judges' decisions would be, in effect, subject to veto by majority VOte. Such a result would be tOtally inconsistem with the existence of a written Constitution, a constinuion intend路 cd to secure the rightS of minorities, of the unpopular, of all of those who, for whatever rea路 son, are Out of filvor. Such a constitution has no meaning unless there is an institution to enforce it, and under our system that institution is the Judicial Branch.

Phil Anderson's inaugural address in TOTOmo faced this issue squarely. He warned lhat those who attack judges for being "activist," whatever that means, arc really attacking them because lhey disagree with their decisions. Every American, of course, has a righl to disagree with the decision of any judge, and to say so Out loud w enever he or she pleases. That principle is nOt at issue here. What is at issue perhaps came into rather sharp relief during the presidential campaign of 1996. A judge of the Sourhern District of ew York happened to grant a motion by a criminal defendant in a drug case to suppress cer路 rain evidence that the government sought to introduce against him. Maybe you read about the decision. To say the least, it wasn't popular.

The presidential candidate of one major party called for [he judge's impeachment. The press secretary of the presidential candidate of the other major party said that the judge should con路 sider resigning ifhe didn't change his mind.

The uproar that followed ar leasr had one good effect: it called the attention of the public to the necessity for judicial independence. The remed)' for an incorrect decision by a judge (if indeed that particular decision was incorrect) is not to impeach [he judge, bur ro appeal from [he judgment. The Coun of Appeals, not a court of impeachment, is the proper forum in which (0 argue the correctness of the judge's decision. I am most grateful that Phil Anderson, as one of the principal themes of his presidency, has chosen to defend this imponant precept of American government. Wi[hour it, we are open to the tyranny of the majority, to the proposition tha[ every lawsuit should be decided, not according [0 written law and objective criteria applied by impartial judges, but according to the opinion of whatever shifting majority exists from time to time in matters of public controversy. I say all citizens owe a debt of gratitude to Phil Anderson, and others like him, who defend the right of judges under our system to make unpopular decisions, even those decisions that they themselves might think were wrong. In a democracy which values nOt only majority rule but also the rights of the minority, defense of an independent judiciary is vital. The American Bar Association has always stood in the vanguard of that defense, and under Phil's presidency, the organized bar will strengthen its stand in this regard.

I have spoken of Philip Anderson rhe lawyer

Pictured are from left to right: Kate Anderson Askew, Missy Anderson, Wright Anderson and Sidney Kenyon and the public man. A few other things need w be said. First of all, Phil Anderson is a man of books. He loves books, old and new - perhaps especially the old ones. He collecrs books. He is an expert on the lircrary and cuJrural hiswry of Britain since the late 19th Cemury. If you wam to talk aOOur Max BeerOOhm or oel Annan or Rupert Hart-Davies, Phil's your man. If you want to know where the best bookshops are in

"",PHIL ANDERSON HAS BEEN A

Washington or Philadelphia or New York, ask Phil. If you happen to be at a meeting of the Council of the American L'lw Illsrirmc, which Phil faithfully attends, and you look up one afternoon and !lmice that his sear is vacanr, look for the nearest antiquarian bookstore. A book is a friend that never changes. and Phil Anderson has many such friends. If you don't believe me, take a look around his house. It may seem as though the books are gradually crowding om the people.

Phil Anderson is also a gardener.

Probably nOthing so exemplifies the c1assical ideal of order, of growth contained within rarionallimirs, than a formal garden. Make your way through the books in Phil's house, go ou[ the back door, and rhere you will see a magnificent formal garden, with flowers and flowering bushes and herbs of all sons. Ir is a place for a cultivated gentleman to work and read and sir and think, and that is exactly what happens rhere.

1 have mentioned the law, me books, and the garden, bur the best is yet to come.

The best is Phil's family, his wife, Missy, his children and grandchildren. If anyone has ever successfully combined the public life of a lawyer and the private life of a family man, it is Phil Anderson, and rhe key co this success is his wife, Missy Wright Anderson, a model of wit, learning, and charm. (You may be guessing that Missy is

LAmR PAR EXCELLENCE. HE HAS SHOWN IN HIS OWN PERSONAL LIFE HOW LAmRS (THOUGH

THIS IS NOT EASY) CAN REPRESE T THEIR CLIENTS' PRIVATE CAU ES WITH ZEAL, AND STILL PROMOTE

a friend of mine, as well, and you'll be right.) At a dinner at the Supreme Coun earlier this year, ar which Missy and Phil were guests, the Chief Justice gave a talk in which he remarked upon rhe portraits of his various predecessors on the walls of rhe room where we had dined. There were, among others, Edward Douglas \'Vhire, Harlan Fiske Stone, William Howard Taft, and Charles Evans Hughes. \'<'hen the rime came for me [0 say a few words, I rook advantage of rhe opening that the Chief had creared. I took speciaJ pleasure in noting the presence in rhe room of Missy \'(fright Anderson, only the second woman in hiswry to be both the wife and the daughter of a President of the American Bar Associarion. The firsr such woman was Elizabeth Hughes Gassert, daughter of Chief Justice Charles Evans Hughes and wife of William T. Gossett. How Missy has endured being around all of those lawyers aJl of those years, I am not sure, but she has done more than endured - she has prevailed, and, I make bold ro say, acrually appears ro be enjoying it.

Maybe you think this encomium has been roo fulsome. Please forgive me for showing my true feelings about Missy and Phil Anderson. Missy is the star of Phil's life, and Phil is the Star of American lawyers. I am proud w be their friend, and proud to be a member of rhe American Bar Associarion at rhis high painr in irs hiswry.â&#x20AC;˘:.

THE PUBLIC CAUSE OF REVERENCE FOR LAW AS AN IDEAL,"

Judge Richard S. Arnold is a United States Circuir Judge for the Eighth Circuit.

\01. U.10. Ilflll 1995 Tbe .lrlulall,I\\!rr

II

SUPPER, ELEPHANTS, AND PHIL'S PLAN

by D. P. Marshall, Jr. When a fellow lawyer asks you (Q share a meal, say yes. You never know where the

fellowship mighr lead.

L1sr summer, I anended the Eighth

Circuit Judicial Conference in Minneapolis.

Knee deep in writing a brief for the Arkansas Supreme Court, I carried the file with me planning co work in the evenings. Friday night of the conference found me reading cases on jury misconduct and outlining my brief. The telephone rang. It was Phil Anderson. He asked me (Q supper, bur I said no, pleading that I needed to keepworking. \Y/e hung up, and as I tried (Q get my mind back around the brief. I realized I'd made a mistake. The work could wait. So I called him back, and, always rhe gendeman, Phil accepted my change of heart graciously.

An hour later we were enjoying a good meal. Phil was six momhs away trom assuming rhe Presidency ot rhe American Bar Associarion. The conversarion dritred, and I asked him whar he mosr wamed [Q accomplish during his term. Phil answered withom hesitarion: he wamed [Q find ways [Q res[Qre and srrengthen public rrust in our justice system.

Phil dreams big, and that is one ot the reasons we rs 15 ~rs tp. a was it that said, ... can eat an elephant if I

lakc small

bilcs~'

Phil undcmands thaI

notion, but. didn't reali~ he intended to order his tirst course of elephant that night in Minneapolis.

Phil had been mulling over rhe problem for the last tew weeks.

It

Thr .Irkanm La\\)rr

vas rhe

Inl.ll.\n. Iffall UlS

answer, he said. Following Madison another leader undaumed by challenges Phil said he wanred [Q have a series at national meerings. Yes, rhe usual suspecrs would be involved: Bar leaders, judges, and law professors. Bur rhe audience had ro be bigger; the ABA should reach out co citizens in all walks of lite - teachers, business peopie, and ochers. Ail of rhose people, Phil said, needed [Q learn abom, consider, and evaluate our scate and tederal systems of jus-

rice.

constiwrional srrucrure and the necessity of an independent and accounrable judjciary ro secure rhar srructure, the gap between rhose high-coned ideas and the jusrice sysrem as seen and experienced by non-lawyers, and how to close that gap by educaring and lisrening co the public. I was rhere, bur I was more of an observer rhan a participant: I saw a lawyer-sraresman ot rhe old school on rhe verge ot pursuing noching less rhan a new birch ot justice tor our legal systems.

The fullness of time has broughr Phil's

Phil envisioned three gatherings. The sketch co life. The first conterence firsr conterence would be hiscorica1: It Bulwarks Ot The Republic: Judicial would explore how Americans came to sep- Independence And Accountability In The ar.tte their state and federal judiciaries from American Systems Of Jusrice - will conrhe ocher rwo branches of governmenr, and vene in Philadelphia in December; rhe secrbe enduring rension berween keeping ond conference- on public perceptions judges borb independenr and accoumable. will tallow a few monrhs later; and next Once rhar biscory lesson - including some Spring the ABA, rhe Conference of Chief recent history about problems in judicial Jusrices, and the League of Women Vmers elections and discipline - had been taught, will host a narional meeting ro plm a strate~ there would be a second conference. Ir gy for achieving Phil's goal: restoring and would look ourward insread of inward, strengthening confidence in our Justice sysexploring how rhe public perceived our jus- rem. rice sysrems. The rhird conference would \Vhen a fellow lawyer asks you co supper, marry rhe public's perceprions witb rhe say yes. I did nor, bur rhe fares smiled and lessons of hisrory, and create a plan - a let me change my mind. My brief waired narional straregy for strengrhening public for me; I filed ir on time (and ended up los~ truSt in ow we secure Justice un er law fo"r-~I~n-g"I"LIi-ercase-~an-ywa---y"""'.""""e-n~yo--u--a-cce=p':'I""I""-a'"'l all cirizens. inviration, you may be privileged - as I was As rhe meal came and went, Phil thought - ro witness something great and fine in our loud about these gatherings. The con- the making. <0versarion warmed us barh, and seemed ro spark Phil's thinking. His enthusiasm was contagious, and long inca rhe evening we D.P. Marshall, Jr., is a partner in the ralked about rhe genius of our republican Jonesboro law firm of Barretr & Deacon.

Congratulations Mr. President Congratulations to Oll distinguished attorney, member of Oll board of directors and friend, Phillip S. Anderson, on serving as President of the American Bar Association.

Arkansas Democrat

ArkansaS~Newspaper

Q5azette

IAWYERS MAKE IT HAPPEN...

Lawyers are 100 oftell the ll1Jslmg heroes ill mallY of the communities ill Arkansas. As par' oj our Celllellllial Celebrlllioll, the Arkansas Bar Association has imp/emellled a project. "'00 Hours for 100 Years. .. to gh'e the public a more realistic image ofau,. legal com",,,,,;,)' ami their COIIs;slelll \'olunteerism. Bll1ll"e Jleed your help. By participating ill the .. 100 HOllrs for 100

}eafS"

project this year. all of liS call take pan ;11 recognition of au,. profession S c01J1ribu-

I;OIlS 10 Ollr communities lind our sUIte. \Ve H'mlt 10 show that 1101 Dilly Clln lau'yers make

it happen路 bw they're been

making ;1 happen for years.

THE TRADITIO Jim F. Akins Brian W. Albright H. William Allen Blair Amold E. LeRoy Autrey Joyce Bradley Babin James A. Badami Palricia Maidt Baggett Gary P. Barket Marcia Barnes Anthony Bartels Paul B. Benhm11. 111 Paula Berridge Mark Binns Arllhony W. Black Jnnet L. Bledsoe C. Tad Bohannon Clifton Bond Dan R. Bowers Henry H. Boyce Robert Branch William C. Bridgforth Robin Brown Thomas E. Brown Lisa Reeves Butler William Jackson Butt. " Joe D. Calhoun Craig A. Campbell Thomas M. Carpenter Phillip Carroll Daniel R. Carter William M. Clark. Jr. H. Murray Claycomb Pat Jackson Complon Vicki S. Cook Barry E. Coplin M. Gayle Corley James O. Cox Michael H. Crawford J:u11es E. Crouch Don Curdie James D. Cypert Carol Cannedy Dalby Boyce R. Davis T. Martin Davis Jack Deacon Michael J. Dennis Terri A. DeS io Jeffrey H. Dixon Melissa R. Dorn Annumary Dougherty

William F. Douglass Richard C. Downing John C. Echols W. W. Elrod. II Alan D. Epley Lewis E. Epley. Jr. Audrey R. Evans Janie M. Evins Ann P. Failz Roger H. Fitzgibbon. Jr. Victor A. Fleming Kay West Forrest Andrew Fulkerson C. Alan Gauldin Lisa G. George Diane A. Gibson Melinda R. Gilbert John P. Gill Gerard F. Glynn Ray A. Goodwin Charlotte L. Greer Todd A. Greer James E. Gresham Wendell L. Griffen Dennis B. Haase Rita R. Hale Don F. Hamilton David K. Harp James E. Harris Charles L. Harwell Sharif Hassan William A. Hill. Jr. Alice L. Holcomb John T. Holleman Don Hollingsworth P.A. Hollingsworth Eugene Hunt Blaine A. Jackson William O. James. Jr. Mark R. Johnson Louis B. Jones. Jr. Robert L. Jones. Jr. Jim L. Julian Philip E. Kaplan Charles M. Kester Deborah A. Knox Stanley R. Langley Hugh R. Laws Ike Allen Laws. Jf. Ike Allen Laws. III RObel1 B. Lenar

CONTINUES Harry A. Light Martin E. Lilly Mark Lindsay Hugh E. Longino. Jr. Patty W. Lueken James M. Luffman Diane S. Mackey Barbara A. Maim JeFFrey G. Maim Howard L. Martin David R. Matthews Stephen A. Matthews Michael L. McCauley Mary S. McGowan Thomas H. McGowan Phyllis M. McKenzie Toney D. McMillan D. Malcolm McNair. Jr. Judy P. McNeil Jack A. McNulty Brandy M. McShane Henry N. Means. III Russ Meeks H. Maurice Mitchell Harry Truman 100re R. Scott Morgan Rosalind M. Mouser Tim W. Murdoch Charles R. Nestrud Wyck 'isbet. Jr. Alan J. ussbaum R. Gary utter Bobby Lee Odom Richard P. Osborne Laura E. Partlow William L. Patton. Jr. Donna C. Pettus E. Lamar Pellus Randy F. Philhours Jesse E. Porter. Jr. David J. Potter Kimberly S. Pulley Heartsill Ragon Louis L. Ramsay. Jr. Brian H. Ratcliff Ken Reeves Bill D. Reynolds Byron Cole Rhodes Lee Richardson Chet A. Roberts Kathryn W. Roberts

Mark Roberts Wm. S. Robinson Judith Rogers Brian M. Rosenthal John L. Rush April M. Rye Isaac A. Scott. Jr. Jay F. Shell Scott M. Simmons William R. Simpson. Jr. Susan M. Skinner Howard L Slinkard Gregory G. Smith H. Vann Smith J. Timothy Smith Rodney K. Smith enrla G. Spainhour Jim D. Spears Janis C. Speed 1. William Spivey. 111 James D. Sprott Paula J. Storeygard Joseph A. Strode John F. Stroud. Jr. William H. Sutton Gregory D. Taylor Larry J. Thompson C. Tab Turner Fred S. Ursery A. Glenn Vasser Larry D. Vaught Joe Volpe Guy Alton Wade Wyman R. Wade. Jr. Douglas Wallace Henry G. Watkins. III John D. Watson Ann West Charles N. Williams W. Jack Williams. Jr. Wade Allan Williams listy J. Wilson Russell B. Winburn Carolyn Witherspoon Keith . Wood Marsha Choate Woodruff Ronald G. WoodrufF Robert R. Wright. III W. Kelvin Wyrick (as of 10/2/98)

100 HOURS FOR

100 YEARS

l?

~

Complete this form and ,路ea,,.,. it to the Arkamas Bar Association whell you have completed 100 hours ofcommunity service during the past 12 months.

This project is part of 0"" Celltellnial Celebration and you will receive recognition.

1898-1998

~JVd OO[

Arkansas Bar Association路 400 West Markham路 Little Rock, AR 72201 路501-375-4606 or 800-609-5668

Hours 1.

Church, Synagogue or Mosque Work (ocher than regular anendallce)

2.

Service on national, state, or local government board, commission, committee or task force (no compensation was paid)

3.

Civic Projects, including nonprofit boards and committees (other than 3nendance at service club meetings)

4.

Free Legal Assistance (through organized pro bono programs or individually with up from pro bono commitment)

5.

State or Local Bar Association Outreach Efforts Disaster Relief, Lawyers for Literacy. Mock Trial, Law Day Activities, etc.

6.

Other (specify)

_

TOTAL HOURS SERVED DURING PAST 12 MONTHS

NUMBER OF THESE HOURS BENEFITTING CHILDREN

Please Describe Three Primary Activities from Above:

_

(for additiona.l com menu, please' use back of form)

I certify that J have perfonlled J 00 bours of community service for which no compensation wns received.

Name

City

_

(Please Print)

Signature

Date

_

16

Thl' .\rkmil.II,i1I1TI'I'

1'01. ~~ No, 1/1';1111998

101. i1 Vo. I/f'oIl199! ~

nt, IrkllnIOII,oll)rr

Ii ---J

The role of rhe juvenile judge differs dramatically from [he role "judge" as it often is perceived. The expected role of being a judge is rhe impanial arbiter of facts and law as in the dererminarion of proof beyond a reasonable doubt or preponderance of the evidence in rhe criminal, civil, and chancery arenas. However, rhe juvenile judge has increasingly assumed the role of gatekeeper because of the juvenile code philosophy of decision making in the "best interest of the juvenile."

That criteria ofbesr interest is the demarcation line of judicial philosophy and a personal perception of the dury ro be performed. The achievcmcnr of a juvenile

or

judge is in defining rhe

mOSt

productive

That Ianee premise was already becoming evident because rhe criminaJ response of detention or Deparement of Youth Services training school and/or lock-up was dedicated to an ineffective and costly adult criminal justice system of punishment and deterrence. Deterrence is reliant upon a thought process of, what'S going ro happen if I get caught? That thought process simply does not occur to mOSt juveniles when presented with the thrill or emotion of the moment.

Fureher. the impact on the juvenile of going ro these criminal facilities was all tOO often one measured in road maps, telephone directories, and recipe books. Coming from the relatively naive rural district to a distant prison-like facility they found criminal soul

cycle of dysfunction or poor parenting where the offspring repe:H the behavior of their parems. I have often stated that the social health of a community may well be measured by the number of three-generation families in the juvenile COlift system.

The numbers of teen parents, rhe condonation of alcohol or drug abuse, the repetitive behavior of physical or sexual abuse, the disdain or lack of commitment ro education or JUSt the demands of a hand路to-momh economic existence which gives rise ro neglect, lack of supervision, and permissive behavior were all symptomatic of the problem.

However, most striking was the isolation or alienation educationally of so many juveniles. Local schools often operated on the

"Eight years ago the dilemma was what to do, how to begin, and what to be satisfied with recognizing that the juvenile pop-

THE GATEKEEPER:

ulation and, concomitantly, the number of juveniles being referred into court was not getting smaller, was becoming increasingly isolated from the mainstream, and there was no real local best interest being selVed."

lIy Judge Gar)1 Isbell interests, and in pursuing the best of those interests for the juvenile and the family.

Eighr years ago rhe dilemma was what to do, how ro begin, and what to be satisfied with recogniz.ing that the juvenile population and, concomitantly, the number of juveniles being referred into coure was not gerring smaller. was becoming increasingly isolated from the mainstream, and there was no real local best interest being served. After following blindly along rhe prior parh of inadequacy a cooperative decision was made to stare something--almost anything--ro allay the feelings of failure and ro fulfill the role that the eyes of the parems and their chil路 dren in my court expected; an answer, a solution, an effort. The decision to start was premised upon a basic recognition that in this huge rural, basically poor economically area, these were our children, they would be our next local generation, and it was our responsibility and duty to find local solutions ro their (and our) needs. Essentially, the premise became that we invest now or we pay later.

AJUVENILE JUSTICE ROLE

IS Tit

Ir~lllll

LIII)tr

111.11 II.

11'11l1~~\

mares rhey \Yould have never met. they acquired potentiaJ sanctuary in places they would have never visited, and they discovered crimes, schemes, and drugs they might have never otherwise found. And they weren't any "better" when they recumed.

Today, rhe national statistics of the Office of Juvenile Justice and Delinquency Prevenrion (OJJDP) reAecr rhat rhe adulrlike incarceration of juveniles leads to a 7678% recidivism rare whereas the use of local programs leads [Q a 38% recidivism rare.

In our area rhe closest detention facility was 100 miles away and the cost was berween $85 and $\ 00 per day. So rhe expense of time, travel, and hOllsing was a huge burden on the 10c.11 community.

Likewise we were guided by rhe local history of multi-generational conduct, rhe

understandable premise that we have limited resources, limited rime, and limited space. and if you can't conform your conduct, learning style, or expectations then we can't let you disrupt the opportunity of rhe majority. The results were that school attendance rules were nor rigorously adhered ro, that discipline for repeat behavior was increasingly our-of-school oriented. and that social promotion was commonly accepted. It is understandable because the schools have had so much obfigarion placed on them withoUt additional resources, because human nature dictates that it is easier to teach the quick and the bright, and because there simply gets to be a frustration factor when the same name or face constantly appears in conjunction with disturbance and disrespect.

The local results were an increasing number of juveniles on the srreets or congregat路 ing at specific locations during the day, an increasing number of juveniles entreating others from the schools or coming OntO school properC)'. an increasing number of juvenile crimes, and an increasing mutual schoollparenrljuvenile friction that stood in rhe way of fmure successful re-integration.

The law enforcemenr community was unhappy with policing om-of-school juveniles, many merchants were unhappy with rhe daytime congregating with attitudes roward cuStomers, shoplifring, skateboarding on sidewalks and parking lors, and interference with trade. The parents, if involved, were upser and complaining, and school officials were at wits-end, but obdurare.

However, if education or the lack of it is the number one forecaster of poverty. crime. and continued family dysfunction, as well as the number one cause associated with the cosr ofsocial welfare, criminal justice. industrial retraining, and loss of tax revenue, rhen some orher response must be found.

As a result of these realiries. and rhe original premise of dury and responsibility, we began efforrs to find local solurions.

Unbeknownst to us at the time. these efforts became forged inro what is now called the "balanced approach" where equal considerarion and equal resources are given to each juvenile in the juvenile justice system in the areas of public safeC)', accountability and competency. So the decision ar the time of initial contact as well as the disposition of the Coun (in sentencing) are dedicated to preserving the public safety, to making the juvenile and his parents accountable ro the vicdm or rhe local community, and ro finding some way to develop. supplant, or encourage the juvenile s comperency so he will nor recommir rhe same act.

We knew we musr forge local relationships and build a consonium of interested and commined individuals and agencies in order to be successful because no single judge wirh his limired staff of intake and probarion officers could accomplish the rask of creating. running. and being daily anuned to the demands of such services.

The first project was to create hosr homes, a series of private homes rrained and willing to take children into their homes when the child could not or should not go home, when their behavior was nor predictably dangerous, and when, with effon, the current problem could be alleviated so they could return home. The premise was a

shorr stay in an appropriate settmg to ger over a crisis withour losing lhe benefit of the local support services. \Y!e funded our first project through grant monies. and cominued to do so, usually from more than one source. \Y!e modified the foster home training program, we recruited and trained, initially two-parenr families that were willing, and investigated {hem, we arranged travel and contract agreements, we set up supporr services, and we hired a part-rime person (Q oversee the development. The program has been a great success in dealing with runaway behavior, in dealing with parem/child explosive crisis, in dealing with perty criminal behavior, and in providing respire for warring reens and their parents.

The local effon was to find homes in rhe community of the juvenile so they - though living our of their home - would not lose their connecrions with school, wirh family or extended family, with local mental and medical heaJth providers, and so the parent and child and system could pursue some solurion to the current problem by counsel路 ing, by a renewed parenring role, by a diversion conrracr, by earned responsibility, and by example. The host home is ofren the only place many of these juveniles see a normal household of parenrs communicating, of murual family panicipation in problem solving or the division of chores. household obligations and recreations. The host home parenrs. though ever vigilant, set down rules, responsibilities. and expectations for these strangers rhe same as they would for their own children while maintaining a reporring obligarion to lhe juvenile service staff and to the child's parenrs. The program operates on a per diem of $15.00, plus transportation and our-of-pocket expenses. and has resulted in many successes with the establishmem of long-term relationships, l11enror access. crisis management. and a personal knowledge of how homes can funccion. \Y/e ha,'e had run-a-ways, some perry theft, and olher failures, bur after five (5) years of operation the evaluation is definitely positive. The host home program. roo, has helped to weld relationships locally togerher with counseling services. with school officials, with reen parem groups, wirh alcohol and drug abuse treatmenr programs, with the Health Departmenr services. with law enforcemem, and even with some employers in the area.

The program exacts a roll on rhe best of hosr home families, and although a cadre of homes remain for years as a reliable resource,

there is a constant search for more homes. and rhe liability fears of the program paramerers and the host home families is a constant. The program fills a void in loca.I services that no other program does and withour rhe srigma or expectation of foster care through a srate agency. The program avoids rhe unnecessary use of in-patient services at clinical programs with their expense, disrance and isolarion, avoids rhe referral of juveniles into the Depanmenr of Human Services or detention facilities. and avoids rhe problem of forcing parenrs and kids back rogether when neirher side is amenable. The program serves all of the purposes of public safety, accountability and competency.

The next program we sought to address was the lack of availability of appropriate parenti ng classes. Agai n th rough grant funding we sought a local solution.

Initially, the referral of parents to parenting classes was a hit or miss proposition whether there were any locally, whether rhey were at a rime or place available to the parent(s), and whether they were appropriate for the need of the parent(s). So we created a program of trained parent reachers ro be held at mulriple locarions and designed ro be age appropriate. In the pasr, the idea of parem classes was a 6 ro 8 week, one night per week class for parenting all children, 018 years. The frustration of parents with reenagers to sit through weeks of infant and pre-adolescent rraining was palpable - JUSt as ir was for parents of roddlers to sit through hours of teen parenting. The parent classes created were divided according to 0-4, 4-12, and 12-18 age groups and locared in the three (3) most geographically conveniem sires for rhis rural area. This meam that for every parent coming into cOllrr rhar needed this resource there were options - locarion and ages - and the programs were designed so thar you could do the classes wirhout regard to when a service starred or stopped. bur ),ou could overlap rhe last 4 here and the first 2 there for example. In addition rhe program provided on路site child care ro avoid the mosr common excuse for poor attendance.

Contrary to COmmon belief, parenting classes are nor ordered by this Coun, at leasr for the sole purpose of learning how to parem. This Coun orders parent classes so rhe parent finds our rhar: (a) rhey are nor alone in their srruggle to raise children; (b) their struggles are nor unique; and (c) they can rerake control of their children when the)'

101.1110. ItralllYYI

Tbr

Ir~an\lll.l\\)pr

IY

feared they had lost or given up comrol.

Most parems wam (0 be good paren [5, bur they allow their circumstances of work, dating, frustf3tion, rebellion, and seeming lack of results to cause them to lose their focus.

In addition (0 the goals of the Coun in ordering parents to 3rrend the parenting program there are other gains that effect the full spectrum of the balanced approach, that help to StOP the cycle of multi-generational dysfunction, and that help (0 identify furure siblings or family problems ("hat can be addressed in a preventive way.

The parent classes, together with anger management classes, teen substance abuse classes, and public forulll classes, are now under the umbrella of the Family Resource Center. The Family Resource Center operates for the dissemination of information, a community center without the stigma of coun, and a multi-disciplinary approach to family issues with programs for children of all ages and their parents from public meetings, instructional classes, and a library of written information as well as audio-visual programs. There are guest speakers, regularly scheduled classes for parenrs and teens, special fun events for children, participation in drug awareness, association with many agencies and specific child orienred groups.

It is also the local coordinator for the Arkansas Promise activities centered around mentoring, protecting, nurturing. teaching, and serving the youth of Arkansas.

The development of these programs has been through the concentrated efforts of a few who have recruited others and performed so well as to attract the attention of others. The programs have grown and been successful because they have relied upon an unselfish - to the point of self-effacement commitment to a goal, and the result is an enormous community involvement from the Quorum Court, the COUllty Judge, the City Mayors, the local public schools, law enforcemenr, community groups and agencies, ,he local colleges, local indus,ry and business groups, and concerned citizens.

No single program, though, seems to have the joint collaborative commitment more so than the development of the Alternative Learning Environment.

Although it is locally known as the Baxter County Alternative School (BCAS), it is an institution created out of need by the Juvenile Service Deparrmenr. The school itself is operated out of the Juvenile Services Building with an administrator and six (6) teachers, but it serves kids ages 12 to 18

to

TIp

Ir~aRSll

Law)Pr

\01.11,10. Ilfall199S

frol11 five or six differenr school districts, and ofTers three (3) <racks of study.

It was initially created to deal with those kids that were suspended or expelled from one of ,he three (3) local high schools, but has grown to also deal with the kids seeking a G.E.D. (ages 16 and 17) and mose kids that are so far behind academically that without intensive effort cannOt reasonably graduate.

The school operates on multi-source funding including the pass through of pub· lic school monies per student per day, one or more grant sources, local contributions, and in-kind services and assistance, as well as Counry funding. The school offers a curriculum according co the needs of the individual student after assessment, conferellce with the school and counselor the student is exiting, and demonstrated abilities. The ratio of teacher to srudenr is always I to 10 or less so that individualized instruction is the goal. Behavior modification is stressed and peer mediation and aggression replacement training (A.R.T) are mandatory curriculum.

Access ro the school is by referral, consent and wrirren contract. The studenr and the studenr's parenr must sign a contract setring forth their specific obligations and cOnlmitmenrs ro the school as a partner, including attendance, participation, extracurricular involvement, transportation, and adherence to eight (8) basic rules. The srudent population grows from about 20 in September to near 60 by May of ,he school year serving about 100 students toral during that period. There is a vocational annex for the school with woodworking, a tC3chermentor program in car body and mechanics, an association with the local college for computer labs, an association with the County library for resource assistance, inschool counseling with the local care provider, a volunteer mentor program of about 40 people, an individual tutor pro· gram through Adult Literacy, and near total commitment from many other sectors.

The school meets all of the criteria for the balanced approach and has over the last nearly three (3) years an enviable record of 82% of students reintegrating successfully in public school, 100% pass rate of ,he G.E.D., and nearly 60% have scored high enough ro be scholarship eligible at either of the two local community colleges. The school, roo, has maim3ined a summer school for remediation the last two years.

At present in the district there is an active

truancy prevention program with most of the 14 local school districts participating, and a new program in one county for early childhood development ,hrough ,he public schools for grades kindergarten through third to avoid or ameliorate the common causes for early non-success in school.

There are plans and applications for another AJternative School and a peer jury sysrem for minor juvenile delinquency cases, as well as perpetuarion of the other programs.

The direct result of these local programs has been a renewed community focus on our kids. We seldom as a court system are forced to look at the prospect of removing a juvenile from the community, and do so only in extreme circumstances and only after all local efforts have been unsuccessful.

The solutions to juvenile delinquency. fam· ilies in need of services, and dependencyneglect are nor in our grasp, but a meaningful local response by 3 com mined and diverse association of individuals and groups is becoming more of a reality. We still must comend in some cases with the sense of futility that comes from the reliance on persons and programs that are distant, of limited accessibility, expensive, and regularly non-productive, bur it is less frequem than before the decision and justification to do so locally.

Of necessity, there is no real opportunity to describe these several programs in detail, nor {Q describe some programs at all, nor to give identity or recognition to the people who deserve it most, nor ro describe all of the events thar gave rise to the program creations. I can't even guarantee that these programs are ultimately successful, for the measure of success will depend upon the future and these kids' share of the future.

Bur I can say withom reservarion that there are no uniform answers nor statewide programs nor regional protocols that will deal as effectively either resource-wise or outcome·wise as will a locally designed and operated program that is dedicated to the improvemenr and performance of its local young citizenry.

The gatekeeper is in the best vantage point to see the needs. {Q encourage those willing to fill the need, and to participate in making sure the solution realized is the best for the individual and the family intereSts.•:.

Judge Gary lshell is a Circuit Chancery Judge for ,he 14,h Judicial DiStrict and has served in that capacity since 1991.

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By Paul Kelly Following the Jonesboro killings and the news reports on me conditions in juvenile correctional facilities across our state.

Arkansas can expect another wave of proposed reforms to the juvenile justice system.

It is right for citizens to expect our leaders to react with vigor to the horror of mass killings and the abuse ofchildren within our institutions.

Unfortunately, Arkansas' attention to juvenile crime and violence adheres to a cycle of intense examination of the problems of juvenile crime in reaction to tragic events, followed by extended periods of public detachment and disregard for the ongoing operation of the juvenile justice system. This pattern of reaction and inaction doesn't produce thoughtful, reasoned, or effective solutions to the problems of juvenile crime and violence. This cycle of failure makes it easy for the naysayer to conclude that there are no solutions, when this is not true. To build any hope of bsting and effective solutions to rout juvenile crime from our own communities, we must closely examine what has been happening in our own s[ate, right before our eyes. Many bold and sweeping changes have occurred since 1989 when our juvenile court system was restructured. Since 1990, during a series of legislative sessions, decisive action was taken in response co public fear of juvenile crime in Arkansas. Harsh and punitive laws made it easier ro place children in adult courts.

Increased penalties for common youthful offenses sem a clear mcssnge that crime was nor co be tolerated. Youth were being held

;;

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101.1110. I/FIII199S

accountable for their heinous acts.

The legislature and administration stand ready to take bold and determined acrion once again. The public and their policy makers are poised, ready to react. However, an appropriate response will come only if the general public better understands the full impact of their past actions, and only if our policy makers and officers of the judicial syslem c.1n illustrate what has worked or nor worked. What have our new laws, changed policie, and increased [ax expenditures already done [0 impact juvenile crime and violence? \Vithout such an assessmenr, our p.mern of episodic reactions will bring self defeat, not solutions.

The series of articles on juvenile justice presenred in this journal cannot address all the difficult and continual questions that emerge around the difficult issue of juvenile crime and violence. However, it is importam that we understand more about this persistent problem, and [here is much to learn by evaluating the impact of decisions already made, lest we repeat our mistakes or overlook the consequences of our policies.

Such an effort was made by Arkansas Advocates for Children and Families (AACF) in a report published in 1998 enrided Juvmi!e Offilldm ill Arkansas 1990 19% A Trend Analysis. This report contains a comprehensive display of juvenile offender data and some interesting findings based 011 the information collected for the six years 1990 rhrough 1995. It also includes a projeCtion analysis done by the National Cenrer

on Crime and Delinquency (NCCD) to determine likely juvenile offender trends in Arkansas through 20 I O. The report also makes several recommendations for how to proceed as we address this critical public policy issue.

THE NEED FOR A STUDY The revised Juvenile Code adopted in 1989 gave [he prosecuting attorney discretion to charge a child (between the ages of 14 and 15 at the time of the alleged act) as an adult for six felony crimes. During the 1991, 1993. and 1995 general legislative sessions. and the 1994 special session, a great deal of focus was placed on increasing the penalties and consequences of juvenile crime. Fifty more crimes were added to the list of offenses for which children could be charged as adults. This "get rough" approach was sweeping the COuntrYl and Arkansas lawmakers were right in step.

Throughout its tweney-year history, Arkansas Advocates for Children and Families (AACF) has asked tough questions. measured the impact of legislation, and looked more closely to see if new laws and policies were addressing the problems as were intended. Given these numerous changes in juvenile justice, AACF was predictably concerned about the need ro determine the impact of these significant changes. Conducting a feasibility srudy in late) 995, AACF round a major challenge in crying ro combine and compare data from state agencies collecting information on

youth involved in the Justice system. In Arkansas five separate state agencies collect and compile criminal data. Law enforcement collects data on arrests, the court system collects data on court proceedings, and three separate agencies colleer data on juveniles sem to them after sentencing. Each collects informuion in different ways, for different reasons, and with different resuhs.

Individually, each of these data sources is an important piece of the puzzle, but the data is presemed ro the stare's policy makers withOut any cooperative or collective analysis.

Despite the hundreds of thousands of tax dollars spem each year collecring and compiling data on our justice system, the result is a large amount of unrelated, piecemeal information that does little to clarify the broader debate about public safety and juvenile crime. Despite the problems, AACF believed that juvenile offender trends could be identified and the consequences of this "get tOugh" could be revealed.

Agencies providing data for this srudy include: the Administrative Office of the Courts, the Arkansas Crime Information Center, the Arkansas Department of Community Punishment, the Department of Human Services, Division of Youth Services, the Arkansas Department of Corrections, and the State Data Center, a unit of the Arkansas Innitute for Economic Advancement at the University of Arkansas at Little Rock. Data was collected and analyzed for rhe six-year period 1990 through 1995.

MAJOR FINDINGS There were five major findings of this srudy.

First, the study found a significant increase in the number of juveniles entering all segments of the justice system from 1990 through 1995. This included a 33% increase in juvenile arrests, a 69% increase in the number of juveniles held in all jails, a 55% increase in diversion programs, a 42% increase in filings in juvenile court, a 31 % increase in the number of juveniles committed to the Division of Youth Services, a 99% increase in the number of juvenile cases filed in adult court, an 85% increase in the number of juveniles placed in the Arkansas Department of Community Punishment, and a 44% increase in (he number of juveniles admitted ro the Arkansas Department of Correcrion. The significance of these increases is particularly noteworthy given the fact that the increase in the number of

Juveniles Entering Justice System Number of Juvenile Arrests

1990 14,886

1991 16,037

1992 16,587

1993 17,392

1994 1995 18,737 19,789

Number of juveniles Held in Jail

4,746

5,785

6,594

7,172

7,495

8,034

Number of Juvenile Di\'ersion Cases

1,275

1,363

2,936

2,874

2,079

1,971

Number of Filings in Juvenile Court

9,369

9,571

10,886

11,934

12,973 13,291

Number of Juvenile Filings in Criminal Court

802

1,214

1,344

1,456

1,777

1,599

Number of Juvenile Commitments to Division of Youth Services

N/A'

N/A

739

705

677

971

Number of Juvenile Cases in Community Punishment

203

267

263

248

356

376

Number of juveniles Admitted 10 Department of Corrections

267

327

381

313

363

385

• Not A~'ailable

Arkansas yourh 10 to 17 years of age over this six-year period was only .6%.

The second finding was that nonwhite juvenile offenders are significantly over-represented in most components of the justice system, particularly in those segments with the highest sanctions. Nonwhite juveniles constitute 23% of the stare's juvenile population and 43% of all juvenile arreSts.

Nonwhites represent 69% of those admitted to the Department of Correction, 63% of (hose committed to the Division of Youth Services, 58% of filings in adult criminal courr, and 50% of those entering the Department of Community Punishment.

On the other hand, nonwhites only represented 28% of those juveniles placed in diversion programs.

Representation of Juveniles in Justice System While Nonwhite Tolal Population, 10-17 years Juvenile Arrests SrYo Filings in Juvenile Court Juveniles Plated in Jails Juveniles in Diversion 72% Juveniles in Adult Court

77% 23% 43% 61% 39% 51% 49% 28% 42% 58% juveniles in DYS' 37% 63% Juveniles in Department of Community Punjshme t Juveniles in AOC* 31% 69'Yo

50%

50%

TOYS - Division of Yourh Services ADC - Arkansas Department of Corrections

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The l\rkaom l,a11}er

tl

The rhird finding, also relared to racial disparities, was rhe significam differences in the sancrions imposed on nonwhite and white juveniles for all six years. The overall average length of scay and the percentage of rime served for nonwhites were generally higher rhan that of whites. This trend held rrue across all segments of the justice system. This trend was mosr evident in rhe juvenile jail population.

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Sanctions Imposed On Juveniles All Years

1990

1991

1992

1993

1994

1995

123.2 237.8

119.9 191.0

131.4 237.6

119.6 246.7

117.2 226.6

116.8 258.2

133.5 246.6

While Nonwhite

Average Number of Days juveniles are Committed 10DYS

N/A

N/A

N/A

119 131

89 95

57 67

45 55

White Nonwhite

Average Number of Days Juveniles are Sentenced to OCr*--

1,518 1,5% 1,156

1,499 1,551 1.278

1,491 1,530 959

1,545 1,611 2,100

1,516 1,682 0

1,442

%3

1,614 1.705 1;lO3

While Black Other

Average umber of Months Juveniles are Sentenced to AOC

N/A

123 193

82 148

118 166

107 149

105 131

102 145

While Nonwhite

Average Number of Hours juveniles are Held in Jails

1,471

OCP - Department of Community Punishment Finding four illustrates the impacr of large number of juveniles entering the justice sysrem when, during 1995. there was a decrease from previous years in the average length of stay for juveniles in most sections of the system. This included juveniles committed to the Division of Yomh Services. those placed in juvenile diversion programs. and yomh admirted to the Department of Correcrion, as well as juveniles receiving other sanctions imposed by the juvenile COllft systcm. In addirion, the average length of commitment days imposed by juvenile court for all offenses varied significantly across the six years, from a high of 104.5 days in 1992 and to a low of 38.6 days in1995. Also, the average length of COIllmitmenr for the top rwenty offenses was a high of 145 days in 1992 and a low of 35.8 days in 1995. 'k.'

Len2th of Juveniles' Stay in Justice System 1990 1991 1992 1993 Average Length of Commitment in Days Imposed by 60.4 57.2 1045 82.0 Juvenile Court fot All Offenses

1994

1995

60.4

38.6

53.0

145.1

86.6

56.7

35.8

Average Length of Commitment in Days to DYS for 20 Most Frequent Offenses

N/A

124

128

98

65

50

5.32

5.23

4.42

4.07

4.44

429

175

133

154

134

123

127

The fifth and final conclusion drawn from this study found rhar the plethora of new laws enacted in 1993 and 1994 may have been merely an endorsement of significant changes that were already occurring in the juvenile justice system. For example. the biggest jump in

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A\'erage Length of Di\'ersion in Months

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juvenile arrests occurred between 1990 and 1991. The most significant increase in the average length of stay for juveniles in jails occurred between 1990 and 1992. The average length of time for juveniles in diversion programs dropped significanrly between 1990 and 1993. And finally, the average length of sentences imposed by juvenile CourtS peaked in 1992. This indicates that the initial get rough responses to rising crime were already raking place prior ro the enactment of ncw laws by the state legislature.

The projection analysis conducted by the National Council on Crime and Delinquency (NCCD) as a part of this study confirmed the need to look closely at the racial disparities existing within the Arkansas juvenile justice system. NCCD projected that overall juvenile populations in the state will increasc minimally at some points. and even decline modesrly at other points, with-

in the state's justice system between now and 20 I O. However, these changes will not be shared equally by racial groups. Their projections have also shown that nonwhite juveniles will: (1) make up larger proportions of future offender populations; and (2) that their over-representation will be greatest at the higher sanctioning levels. For example, NCCD has projected by 20 I0 that nonwhite juveniles will make up: 45 percent of juveniles arrested; 52 percent of juveniles in community punishment; 69 percent of juveniles in DYS cusrody; 62 percent of juveniles in jails; and 60 percent of juveniles in prisons.

In summary, these findings indicate that recent responses to juvenile crime severely impact minority youth and that this dispari~ ty is likely to increase under current trends.

It also appears that legislative reactions to

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Thr Irkilllm l,il\l)I'1'

\'01.

n No. 111'illll!198

juvenile crime may be less relevant or effective in dealing with rising crime than the actions of local law enforcement and courtS that respond to public fear and concern by using options already available under current law. The findings do not explain why these disparities exist. That is a subject for another study. However, until this and tile other questions raised by this report can be answered, any sweeping policy changes must be pursued with all due caution.

STUDY RECOMMENDATIONS In addition ro the findings of the report, the way juvenile and criminal data is gathered in Arkansas is woefully inadequate for those seeking to make informed decisions about juvenile justice policy. Under current methods, Arkansas cannot track an individual offender through either the juvenile system or the criminal justice system, much less track their movement across these t\....o systems. This capacity to track offenders between systems is becoming more urgent given the likely implementation of blended sentences during the next legislative session.

The state agencies must make a concerted effort to work together to improve the uniformity, lIsefulness, and comprehensiveness of dara available for analysis.

Many laws dealing with crime are passionate responses to very troubling events.

Policy makers must evaluate the impact of such laws, determine the COSt benefit, and determine the effectiveness of laws designed to mitigate crime. They cannot do so given the serious limitations of the information being gathered. The data collection agencies and legislators must determine the policy questions that are to be asked. What do the general public and policy makers need to know to determine the impact of laws and policies intended to improve the justice system? Are the same juveniles entering and re~ entering the justice system? As this study reveals, currenr data is collected in response to panial inqu.iries. The result is a large amount of unrelated, piecemeal information that does little to clarify the broader debate about public safety and juvenile crime. A special task force is needed ro streamline data collection to enable policy makers to answer policy questions that permeate all segments of the justice system. Most state agencies are collecting offender data in response to l1lall~ dares established by the legislature. It is time ro review rhese mandates or establish sunset provisions to re-evaluate the need for such

data gathering.

Given rhe over-representation of minority groups in the justice system and the trend toward more severe sanctions for minority offenders, all components of the justice system should evaluate their current policies and practices to dctermine how they are conrributing to this phenomenon. This does not ignore the multitude of factors that may contribute co thesc disparities; it merely acknowledges the presenr reality. Further examination might provide additional explanations about why somc of these dis~ parities exist. Similar studies should be made of subsequent years in order to capitalize on the efforts made by this project to understand trends in the juvenilc justice system.

Reducing youth violence, ensuring that statc agencies arc holding children safe, and deciding how best to handle juvenile offenders is no easy task. The real solutions, those with signiflcant and enduring impact, canflm be conceived or implemcnted without coordinating the multiplicity of local and state agencics engaged in providing public safety. It is imperative that Arkansas institute procedures to ensurc that criminal justice data is collected, analyzed, and coordinated in a way that aJlows us to use this information for determining a good ovcrall public policy. Without good data and a way co evaluate the outcomes, it is naive to expect our proposcd solutions to bring about the changes we want. We are asking our leaders to make well-informed decisions without bcing very well-informed. We can ill afford to conduct the business of public safety by merely reacting [Q one crisis after another, when so many young lives are held in the balance.•:.

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v"It Out: www.arkbar.com 101.1110. 1/I'aIl199S

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ti

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Juvenile Court

By Gerard F. Glynn Although many lawyers are apprehensive aoom appearing in juvenile coun, it is nor a foreign cOllnrey. Juvenile proceedings use the rules of evidence, civil and criminal procedure. They are coures of record where testimony and arguments are held. Lawyers familiar with Arkansas coun procedures should feel comfortable in any juvenile court in the scare.

This is nor 3 tcrritory in which social workers rule. Juvenile Coun is a court of

equity, hue the proceedings arc controlled by lawyers. Any lawyer familiar with the complicated concept of "best imercsr of the child" which dominates custody decisions in divorce proceedings should be able to quickly become competenr in juvenile coun.

There 3rc three basic rypes of juvenile cases: delinquency, dependency/neglect and family in need of services (FI S). Many pans of the juvenile code apply to all three proceedings including the requirements of a petition and the rules of procedure. Parents

i8 Thr "rkanJa! tallyrr

\'01. 3180. ,l/fall199S

and custodians are also defendams in all juvenile proceedings and subject to coun ordered services. supervision and sanctions.

There are three basic hearings in juvenile courr: adjudication. disposition and review hearing. In an adjudication hearing, the court must decide whether the petition has been proven by the necessary standard of proof.

If the petitioner succeeds in proving the petition. a disposition hearing will be necessary to decide who will have custody of the children who are the subject of the proceedings and what services will be provided the children and family. In many courtS the disposition hearing follows immediately after the adjudication even though it can be continued to allow for the collection of additional information.

A lawyer plays a critical role in a d.isposition hearing. A lawyer would not handle a divorce by telling a c1iem that he or she will only handle the issue of who gets the divorce

and leave the issue of custody to other professionals. Likewise a lawyer would not handle a personal injury case by telling a client that he or she will only handle the issue of liabiliry and leave the issue of damages up to other professionals. Lawyers must competently litigate all matters in juvenile court including dispositions as they would any issue of remedies in any other legal proceedings. To prepare for chis critical stage of any juvenile proceeding. a lawyer should familiarize himself or herself with services needed by the family and available in the state.

Finally, juvenile courtS hold review hearings to moniror the progress of a case.

Federal and stare law mandate review hearings in cases in which children are removed from their family due ro abuse, ahandonmem or neglect, bur many couns also hold review hearings in delinquency and family in need of services cases also. For example. if a child is given a disposition of [Wo years

1997-1998 AN

UAL REpORT

Dear Fellows of the Arkansas Bar Foundation: As attorneys, we have pledged to maintain certain professional standards to protect individual rights, to improve the justice system and advance the rule of law. By your participation as a Fellow of this Foundation you have helped to foster these ideas.

In 1997-98, with the income afforded by our trust investments the Foundation has funded special project grants in excess of $40,000.00 to include significant funding for the Centennial celebtation for the Arkansas Bar Association and support for a number of other worthy legally related projects.

In the area of legal education the Foundation awarded 24 scholarships to deserving law students at the University of Arkansas School of Law in Fayetteville and 25 scholarships to students at the University of Arkansas Little Rock School of Law. The scholarship recipients were recognized at our annual Mid-year Dinner at the Pleasant Valley Country Club held in conjunction with the Arkansas Bar Association's First Annual Trial Ptactice Institute. Dr. John A. White, Chancellor at the Univetsity of Arkansas, addressed the scholarship tecipients, Fellows and guests.

During this year, we have also observed the establishment of a new endowed Foundation scholarship at the University of Arkansas Law School in Fayetteville in the memory of the late Horace McKenzie of Prescotr.

The Foundation has manifested its support of our two law schools with sponsorship of and funding for two professorships, one at the University of Arkansas Law School in Fayetteville to Professot John Watkins and the other to Professor Dent Gitchel at the University of Arkansas Law School in Little Rock.

We have increased our membership strength which at present stands at 542 Fellows and we now have 178 Sustaining Members.

Consistent with previous recommendations, revisions to our existing Constitution and By-laws have been accomplished subject to approval of the Members to convert our Foundation to be governed under the Arkansas Nonprofit Act of 1993. The adoption of these amendments and this conversion will facilitate the functioning of the Foundation in the future.

Finally, through the efforts of the Joint Advisory Planning Committee, your Foundation has decided to retain its ownership of the Arkansas Bar Center building. In anticipation of retiring its mortgage on the building in 1999, the Foundation looks fotward to continuing its partnership with the Bar Association while expanding its operating budget to allow the accomplishment of more goals and programs of the Foundation in the future. We will also embark on an improvement project for the Bar Center in 1999.

It has indeed been an honor and priviledge for me to serve as President of the Arkansas Bar Foundation during the 1997-98 year and I trust that the Foundation has fulfilled its commitment to improve the administration ofjustice.

The accomplishment of this goal has been possible only through the dedicated efforts of the Fellows of the Foundation and the energy and talents of our outstanding Executive Director, Ann Pyle. As my term as President of the Foundation concludes, it is my hope that the past 40 years of growth and development have paved the way for a bright future for our Foundation. With the expanded economic abilities, the Foundation will be able to continue its growth and development in the years ahead.

Sincerely,

6)~~

A. Glenn Vasser President, Arkansas Bar Foundation

The Arkansas Bar Foundation was established in 1958 ro suppon effons at improving me administration of justice. The Arkansas Bar Foundation, which is classified as a tax exempt organization under Section 50 I (c) (3) of me Internal Revenue Code, is a charitable organization with a mission ro promote educational, literary, scientific and charitable purposes by applying funds ro the Arkansas Bar Association and other corporations, trusts, foundations, funds and organizations which promote mese purposes.

FOUNDATION OBJECTIVES: I.

To improve me adminisrrarion of justice through legal study and research, diffusion of knowledge of the law and continuing education of lawyers.

2. To publish and distribute addresses, reporrs, rrearises and other literary works on legal subjects.

3. To acquire, preserve and exhibit rare books and documents, objects of an and items of hisrorical interest having legal significance or bearing on adminisrration of justice.

The Arkansas Bar Foundation funded me building of the Arkansas Law Center, located at 400 West Markham, Little Rock, Arkansas, which has been the location of the Foundation and the Association since 1974. The building is wholly owned by me Foundation, but space is rented by UALR and other offices. The Law Center has a formal conference room which is frequently used by lawyers from around me state for deposirions and meetings. The open lobby area is a perfect sire for receptions and larger meetings.

The Foundation is governed by an eighteen-member Board of Direcrors. The Board is composed of mree lawyers elected by the Foundation members from each of the five bar districts plus the Arkansas Bar Association President, the Immediate Past President of me Foundation and the Chair of me Trust Committee. The Officers of the Foundation are the President, Vice President, and Secretary-Treasurer, who are elected by me Board for one-year terms.

Members of the Board are elected at the annual Foundation membership meetmg.

The seventeen-member Trust Committee is composed of experienced lawyers who serve six-year terms. Two are appointed by each President and confirmed by the Board. Orner members are me Foundarion Officers and the Deans of the two Arkansas law schools. The Trust Commirree manages the Trust Fund ro generate income for the good works of me Foundation. Only interest earned on the Trust Account is used. A separate operating account pays the cost of running the Foundation.

For fiscal year 1997-98, the Arkansas Bar Foundation approved granrs, scholarships and program allotments of benefit to the profession and the public.

Scholarships and projecrs of the Arkansas Bar Foundation are financed through investmenr income from the trust fund which has been built by contributions and Fellows' pledges and is used solely for the good works of the Foundation. This illustration reAeers allocations for the 1997-98 year. *

Awards/Recognition

Law-Related Education Programs

Foundation Ment Scholarships and Foundation Protessorships

Special Projects Grants

Endowed Scholarships

'The Arkansas Bar Foundation's fiscal year begins on July 1 of each year and ends on June 30.

The Foundation contributes support to the two Arkansas law schools. In addition to the many endowed named law school scholarships and the Arkansas Bar Foundation Merit Scholarships awarded to deserving students at each school, the Foundation also approved funding in the rotal amounr of $21,350 in the 199798 trust budget for the following: Arkansas Bar Foundation Professotships; Law Student Moot Coun Competition; and, Law Review and Law Journal writing awards.

The Arkansas Bar Foundation has established an Arkansas Bar Foundation Professorship at the University of Arkansas School of Law and the UAlR School of Law. One outstanding faculty member from each school is selected to hold this designation of ''Arkansas Bar Foundation Professor of Law" and receives a salary supplemenr upon this designation. The criteria for selection is excellence in teaching; excellence in scholarship in Arkansas Law; and, significant contributions to serving the Bench and Bar of Arkansas.

ARKANSAS BAR FOUNDATION PROFESSORS OF LAW Professor W Dent Gitchel, UALR School of Law Professor John J. Watkins, University of Arkansas School of Law Other program allocations include funding appropriated for the Arkansas Bar Association and Arkansas Bar Foundation Annual Awards. The Arkansas Bar Foundation Trust Committee, which administers an endowmenr fund for the Conrinuing Legal Education (CLE) Departmenr, approved funding in the amount of $9,000 ro be utilized to off-set costs for two programs sponsored by the Arkansas Bar Association Conrinuing Legal Education (CLE) Departmenr the Bridging the Gap Semi nat and a Commuter Computer Training Course.

Each year, the Arkansas Bar Foundarion awards approximately 35 endowed law school scholarships to students at the University of Arkansas School of Law and the UALR School of Law. In addition, the faculty of each of the fwO law schools are allotted three scholatships for students who show potential and who are deserving of financial award. These Arkansas Bar Foundation Merit Scholarships are funded by rhe Foundation in the total amount of $7,500 and have produced fine lawyers who otherwise may not have been able to afford the COStS of law school without the Foundation's assistance.

Scholarship recipients are honored at the Arkansas Bar Foundation Mid-Year Scholarship Dinner. The Foundation was honored to have Dr. John A. White, Chancellor, University of Arkansas as the guest speaker for this year's scholarship program which was held on Februaty 13, 1998 at the Pleasant Valley Country Club in Little Rock.

SCHOLARSHIP AWARDED

RECIPIENT

Arkansas Bar Foundation (In honor ofSebastian Counry Bar. U.M. Rose. Mike Gotman & Edward L. Wright) Guy Amsler. Jr.

Jonarhan Bell Paul Stark

Arkansas Association of Women Lawyers

(in honor of Ruth Huskey Brunson) Joe C Barretl Bogle-Sharp R.A. Eilbotl. Jr. Judge John A. Fogleman Vincenr W. Foster, Jr.

Friday, Eldredge & Clark Judge J. Smith Henley Justice J. Frank Holr Edward Lester Judge John E, Miller Col. CE. Ransick Rather. Beyer & Harper Smith, Stroud, MeClerkin,

Erin Oestreich Royston JoAnn Adcock Robert George Erica Hayes Joel Hillygus Laura Foster

Cristelle Hodges Maureen Hazinski Shane Raley Julie Redmon Thayla Painrer Wendy Dinning Krystal Taylor

Dunn & Nurrer

Manhew Wade IGmmei

M. Jeff Starling' CR. Warner

Brent Gasper

Harry P. Warner Bernard & Bud Whetstone

Judge Henry Woods Arkansas Bar Foundation (Merit Scholarship)

Cynthia Wood Jason Martinez

Lisa Baker Bruce Anible Michael Johnson Charlone Scorr

路WiU be awarded in [he spring

SCHOLARSHIP AWARDED Arkansas Bar Foundation (In honor of Sebastian Counry Bar. U.M, Rose, Mike Gorman & Edward L. Wright)

Catherine Brancon

Arkansas Association of Women Lawyers

(in honor of Ruth Huskey Brunson) Lesley Hager Bogle-Sharp Lacy Jerome Kennedy John H. and Ruth H. Brunson Monica Mason Michelle "Mimi" Miller Robin Rhodes Phillip Wilson Melissa Whitehead Krebs Heather Eason Phoebe Roaf E, Charles Eichenbaum Cathy Underwood Jesse Gibson Michael J. Leicht R.A. Eilbotl. Jr. Laura Hodges Friday, Eldredge & Clark Kimberly Withmpoon James H. Larrison, Jr. Hearher Turnbull Edward Lester Gina Cothern Brian MacMillan A. Heath Ahshure Judge William R. Overton

Col, CE. Ransick Rather, Beyer & Harper Rose Law Firm U.M. Rose The Shackleford Scholarship

William Pusch

Melissa A. Mcjunkins Stephanie M. O'Brien

Lesley Hager Terry Askew Robin Rhodes

Justice George Rose Smith

Sondra K. Boone

Judge Thomas Clark Trimble CR. Warner

Rhonda Wood Joseph Ghormley Michael J. Leicht

Harry P: Warner Bernard & Bud Whetstone Roxanne Tomhave Wilson

Judge Henry Woods Arkansas Bar Foundation .. Awarded in [he spring to an outstanding young trial lawyer

RECIPIENT

(Merit Scholarship)

Michael J. Lamoureux

Carhy Underwood Michael J. Leicht Joseph Ghormley Deana M. Graves

Melissa Whitehead Krebs

The Arkansas Bar Foundation provided special projects grants totaling more than $40,000 to eight otganizations or programs during the 1997-98 year. Funding for the following legally-relared projects represents the Foundation's commitment to its educational and charitable mission to improve the administration of justice.

ADVANCE DIRECTIVES HANDBOOK FOR PERSONS WITH MENTAL ILLNESS UALR SCHOOL OF LAw LEGAL CLINIC AND ADvOCAcr SERVICES, INC. Funding in the amount of $3,400 was awarded to the UALR School of Law Legal Clinic and Advocacy Services, Inc. for this joint effort to print an Advance Directives Handbook for Persons with Mental Illness. The development and dissemination of this information will greatly assist professionals, consumers, family members and advocates by filling a void in education as it relates to psychiatric advance directives.

THE FAMILY LAW GUIDE ARKANSAS VOLUNTEER LAWYERS FOR THE ELDERLY (AVLE) AND VOLUNTEERS' ORGANIZATION, CENTER FOR ARKANSAS LEGAL SERVICES (VOCALS) $4,000 was granted to AVLE and VOCALS for the publication of 10,000 educational brochures entitled "The Family Law Guide." This booklet, which outlines information on various family law issues such as divorce, domestic abuse, and child custody and support, will be disseminated to senior citizens, aging network agencies, local bar associations and other interested parties throughout the state.

GUIDE TO MEDIATION ARKANSAS ALTERNATIVE DISPUTE RESOLUTION (ADR) COMMISSION The purpose of the Arkansas Alternative Dispute Resolution (ADR) Commission is to encourage, promote and develop voluntary alternative processes through rhe state to resolve disputes, cases, and controversies of all kinds. Funding in the amount of $3,150 will enable the ADR Commission to print a brochure which explains the mediation process, the current Arkansas laws regarding mediation and current guidelines of mediation conduct and qualifications.

CONFLICT RESOLUTION SKILLS -AN INTEGRATIVE CURRICULUM ARKANSAS ALTERNATIVE DISPUTE RESOLUTION (ADR) COMMISSION The Arkansas Alternative Dispute Resolution (ADR) Commission received a grant in the amount of $1 ,815 for this project. The goal of this educational project is to further the use of conflict resolution skills in Arkansas schools by providing an annotated bibliography along with suggested conflict resolution activities and lesson plans to help teachers incorporate the teaching of conflict resolution skills into their current curriculum.

CENTENNIAL OF THE ARKANSAS BAR ASSOCIATION COMMIITEE TO CELEBRATE ARKANSAS BAR AssoclATIO 100TH ANNIVERSARY The Arkansas Bar Association received a grant in the amount of $25,000 for its "Celebrating One Hundred Years" year-long project. Foundation funding will be used for purposes promoting educational, hisrorical and administration of justice issues such as educational programs and panels during annual meeting, compilation of the Arkansas Bar Association's hisrory, and programs about the role of the law designed for students.

ARKANSAS JUSTICE: THE FIRST 200 YEARS ARKANSAS BAR AsSOCIATION, PUBLIC INFORMATION COMMITTEE A grant in the amount of $3,000 was awarded ro the Public Information Committee ro preserve and provide additional copies of the one-hour documentary entitled ''Arkansas Justice: The First 200 Years." This program, which was produced during the United States Bicentennial Celebration in 1976, is a ropqualiry hisrorical document that traces the srory of Arkansas Justice from Terrirorial times ro the mid-1970s. Once this 16mm celluloid film has been transferred ro videotape, it will be utilized during the Arkan as Bar Association's Centennial Celebration in 1998.

TEEN HANDBOOK ARKANSAS ADVOCATES FOR CHILDREN AND FAMILIES This mission of Arkansas Advocates for Children and Families is ro protect and promote through research, education and advocacy the rights and well-being of Arkansas children and their families. Agrant in the amount of$1,500 was awarded ro this organizarion for printing and distribution of the Teen Handbook which will be designed for teen parents because of the specific issues and rules unique ro this population.

ABOGACIA PARA LA COMUNIDAD CENTRO HISPANO Centro Hispano is a non-profit organization with a mission ro serve the special needs of Spanish-speaking people in Arkansas. The Abogacia para la Comunidad project is one which seeks ro improve the administration of justice by providing assistance that will fill the gap in legal services for Arkansas' growing Hispanic population. The Arkansas Bar Foundation awarded Centro Hispano $1,500 ro be used specifically for the Citizenship Preparation Materials parr of this project which includes printing and distribution of citizenship information.

OWS OF THE ARKANSAS BAR FOUNDATION Outstanding lawyers in the State of Arkansas are invited to become Fellows of me Foundation.

Upon invitation, a Fellow must contribute or pledge to contribute an amount designated by the Foundation Board. The current financial requirement to become a Fellow is a pledge of $1,500, which is payable over a three or five year period. Upon receipt of the pledge and initial payment, me anomey is designated a Fellow. After me pledged contribution has been paid in full, the Fellow's picture will be displayed in the Hall of Fellows in me Arkansas Law Center.

This list represents me current 542 Fellows of the Foundation as of April 30, 1998. Those Fellows whose names are highlighted in bold are recognized as newly designated Fellows for me 1997-98 year.

SUSTAINI 'G MEMBERS

Pledge payments, scholarship contributions and omer gifts are deposited into me Trust Fund.

While investment income from me Trust Fund principal funds me charitable and educational purposes of me Foundation, a separate operating account pays for me day to day costs associated with administering the Foundation. In addition to rent from tenants in the Arkansas Law Center, a primary source of operating funds is through Sustaining Memberships. Any Fellow of the Foundation who contributes $50 annually may become a Sustaining Member. We appreciate me support of our 178 Sustaining Members. ames marked with a "*" represent Fellows who were also Sustaining Members as of April 30, 1998.

Julius C. Acchione Rich...d B. Adkisson Charl.. Grtg Alagood • Edwin B. Ald"",n, Jr. • H. William Allen R. Bc:n AlI,n • Guy Amsl". Jr.

E M. And,... n · ·

•

•

Overton S. Anderson Philip S. Anderson R. Keith Arman Morris S. Arnold WH. "Dub" Arnold J'" L Mow, III Virginia Atkinson E l.<Roy Au,"}' Lawrtnct H. A\'C'rilJ, Jr. Don~d H. Baron Carlton Bailey Frank H. Bailey Nancy H. Bailey Kenneth B. Bairn Charl.. W. Bak" J=.. P. Bak<r. Jr. Roy L Bak". J,.

EJ. ~I William K. B~I Don K. Barnes Ralph C. Barnhart • W. ChristOpher Barrier EXn T. Barry Sh,rey P. Bani,), David F. Barron Roben BauDO S2JT1ud R. Baxr" R. T. Bc:..-d, III Jobn R. &.osl')' Mik,8c:<b< Jo< D. Bc:II Paul B. Bc:nham. III Joe Eknson

• · ·

•

· · · · · •

· • • ·

Sanford L Beshear, Jr. Edgar E. Bc:,hdl S2JT1 . Bird Eric W. Bishop H. David Blair James 8. Blair lim 8Ol: Paul R. Bosson Tod Boswdl William H. Bowen Edward Boyce Wayne Boyce Comer Boyen. Jr. Thomas M. Bramh~1 Ell.. B. B",,,I')' Willi= C. Bndgfonh Bill W Bristow Edward W. Brockman, Jr. Charles A. Brown Gerald Brown Robert L. Brown Thomas E. Brown C. Brantley Buck C. Douglas Buford, Jr. Tom A. Burord Dale L Bumpers Dan M. Burge Larry W. Bu,ks Kevin R. Burns Eldtidg, J. Bud" Richard C. Bud", J'.

James A. Buury E Wilson Bynum, Jr. John R. Byrd Richard J. Bym' Rob<n D. Cab< John C. ~houn. J'.

Worth Camp, Jr. G<o'gc E. Carnpb<1I Claude Carpenter, Jr. Thomas M. Carpenter

Phillip Carroll Daniel R. Camr J= T. Can" • Paula J. Cas')' • Rob<n M. C<arl')', Jr. John S. Ch"ry, Jr. Sand... Wilson Ch'rey la_nIX E Chi"nh~l, Jr. Bill S. Clark William M. Clark, Jr. W. Dane Clay H. Murray Claycomb Hillary Rodhml Gimon Ralph M. Ooar. Jr. H. Howard Cn<knll FJdon E Coffman Charles T. Coleman Rolxn C. Compton Barry E Coplin Ben Core Nate Coulter Kenneth W. Cowan J=.. O. Cox • Miclud H. C...wiord Jan R. Cmmwdl • Jam.. D. Cyp<n Roy E. DanUStr Jim Darr, Jr. Walter W Davidson • John A. D"is, III Sidney P. Davis, Jr. · Rolxn T. Dawson · j.c. Dacon G~d L Ddung Rob<n L O<rp<r. J'.

Jay W. Dicl«y, Jr. Edward B. Dillon. J'.

• WG. Dinning, Jr. · Philip E. Dixon Robert E. Dodson Rob<n P. Dough'rey

Darrell D. Dover James F. Dowden Tod N. Drak, • Winslow Drummond • limOlhy O. Dudl')' Phillip J. Duncan Winford L Dunn James Trester Dyke B. Michad £asl')' John C. Echols William A. Eckert Ch...l.. H. Eddy

G. Thomas Ei"I, Byron M. Eisc:man, Jr. • John D. Eldtidg< • Don R. FJlion, Jr. · George D. FJlis • John R. El,od WW EllOd. II · William H. Enfield • Stephen Engstrom l.<wis E £pI')'. J,.

Rob<n R. Esr.. · Guy L Eubanks Audr<y R. Evans · Mike Everen Lindsc:y J. Faiel')' PhiUip B. Farris Jackson F1rrow, Jr. · Oscar Fendler William l..tt Fergus J. Michad Finhugh Vietor A. Fleming • Jobn A. FogI,man • Julian B. FogI,man Dan Fo,d John F. Forster, Jr. limothy Davis Fox Charles Frierson, III Rob<n F. Fu",11 W Dale Garren

M. Morrell Gathright }Gllherine C. Gay Marrin G. Gilbc:n • John P. Gill Marion S. Gill Charles J. Giroir, Jr. W Oem GilChel Monon Gitelman Roger A. GI"gow David M. Glover Ch"b S. Goldberger Ray A. Goodwin Nathan G. Gordon Alben Gr:wes., Jr. Alben Gn\>tS. Sr. John R. Gn\'es K2thlyn Gro...es • J. W Green, Jr. • John C. Gregg Richard E. Griffin Ron.Jd L Griggs Mark W Crobmyer Wayne Gruber Michael E. Hale Mil" H. H,Ie, III John T. H,ley, Jr. O. Wendell H,II, Jr. Don F. Hamilton Donis B. Hamilton Herman L Hamilton, Jr. W. P. Hamilton Fr.mk S. Hamlin Jeffrey E. Hance Swan W Hankins John T. Hardin P.H. Hardin David M. Hargis John N. Harkey · David K. Harp Searcy W. Harrell, Jr. Eugene S. Harris James E. Harris S. Reid Harrod, Jr. · John T. H"kins • Richard Hatfield William D. Haughl Claude S. Hawkins. Jr. M. Stede Hays Lo..-ber Hendricks DoruJd H. Henry Roben W. H<nry E. H. Herrod Sam Hilburn E. Kent Hinch Ridurd W Hobbs William H. Hodge David A- Hodges Henry Hodges Kaneasler Hodges, Jr. Cunis E. Hogue Cyril Hollingswonh Don Hollingsy.'onh Bill R. HolI"",y • Jack W Hoh, Jr. • Roben M. Honea · Jenniffer M. Honn Mauhew Horan Roben E. Hornberger Phillip D. Hout Dorolhy Y. Howard EJ. Howell, Jr. W Max Howell D. Michael Huckabay Clint Huey Annabc:lle Clinton Imber Randall W. Ishmael

• • · • •

· ·

·

Hermann h'ester Donald T. Jack, Jr. John H. Jackson Randolph C. J'dkson AlslOn Jennings, Jr. A1slOn Jennings Bradley D. Jcsson John M. Jewell W Horace Jewtll Glenn W Jones, Jr. M. Samuel Jones, III Roben L Jones, Jr. Roben L Jones, III W Wilson Jones Jim L Julian Eugene Kelley Willi", H. Kennedy, III J.L Kidd. Jr. Judson C. Kidd Mima C. Kilgort John N. Killough Joseph E. K;Jp"riek. Jr. Warre:n O. Kimbrough Milam Mike Kinard Don.Jd K. King H'rold L King Knox B. Kinney John S. Kirrerman Peter C. Kumpe H. Baker Kurrus Stanley R. Langley David N. I...aser Sam Laser John T. Lavey Ike Allen Laws. Jr. Leland E Leatherman Charles R. Ledbeuer Thomas D. Ledbetter Roben B Lenar Markham Lester Slark Ligon G,ry F. Ules R"h Undsey W Kirby l.ockh,n Floyd J. Lofron J. Hugh Lookadoo, Jr. Edwin L Lowther. Jr. POlity W Lueken James M. Luffman Diane S. Mackey Anhur R. Macom Edward S. M,ddox Phil M.Jcom Howard L Martin Richard L Marrin William A. Marrin Michael H. Mashburn Terry L M,thews Charles D. Manhews David R. Mauhnvs SIC:phC'n A. Mauhews Ronald A May S. Huben M,yes, Jr. Richard L M,l' Robin L Mays Eugene J. Mmami H.JI McAd,ms, III Herben H. McAd,ms, II A. D. McAllister, Jr. Auslin McCaskill James E. McClain, Jr. Ha)'es C. McClerkin Sidney H. McCollum Ed W. McCorkle Bobby McDaniel Lucinda McDaniel

Harry E. McDermoll, Jr. Robert McHenry Marcia Mcivor • James H. McKen:z.ie • J,mes A. McLarry, III James Bruce McMath Phillip H. McM"h Sidney S. McMath Toney D. McMillan · Jack A. Me 'ulq' D. L McRae

• • •

M~(B.Mead$

Russ Meeks David E Menz William S. Miller. Jr. H. Maurice Mitchell Mich,eI W. MilCheil MukA. Moll Edward O. Moody J,mes M. Moody Charles Mooney Dewey Moore, Jr. Harry Truman Moort J,mes L Moor<, III James W. Moore John B. Moore, Jr. Mitchell D. Moore: Rich,rd N. Moor<, Jr. Charles A. Morgan Stephen E. Morley Kennelh R. Mounon Rosalind M. Mouser Wm. Kirby Mouser Lee J. Muldrow Ban G. Mullis Walter A. Murray Richard S. Muse Ronald G. Nar.lmort William Nash Oily Neal E. Sheffield Nelson Charles R. Nestrud David Newbern G<orge H. Niblock Raymond L Niblock Walttr R. Niblock Wyek Nisber, Jr. R. Cary Nutler Mike A. O'Brien Bobby Lee Odom ConOId T. Odom Richard P. Osborne Thomas L Overbey Ch,rles C. A." William L OwC'n Michael O. Parker Gerlmd P. P~n('n icholas H. Panon William L Panon, Jr. Riclr.lrd L Peel Edward M. Penick Bill Penix Samuel A. Pc:rroni Donna C. Pettus E. Lamar Peuus Norwood Phillips G<orgc E. Pike, Jr. John M. Pitrman Charles E. Plunkeu OdellPolI"d David M. Powell Donald E. PrcvaJlC't William l. Prcwetl David H. PI)'or Thomas B. Pryor Donald C. Pullen

•

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Steven W Quaulebaum John W. Raines Michael R. Rainwater Louis L Ramsay, Jr. Richard L Ramsay C. E. Ransick Brian H. Ralcliff Gordon . Rather. Jr. J. Thomas Ray Slephen M. Rrasol1l:r David Rees Rieh,rd A. Reid J,mes R. Rhodes, III Ben E. Rice Bton A. Rieves, III Richard W Roachell John B. Robbins Marl< Robens Susanne: RobertS Thomas E. RobertSOn H. Clay Robinson Roben L Robinson. Jr. Spencer F. Robinson Judilh Rogers Charles B. Roscopf Ch"les D. Roscopf Louis Rosen Jeff M. Rosenzweig Roben O. Ross Roben R. Ross Beverly A. Rowlen flsijanc: T. Roy Ken! J. Rubens Herbert C. Rule, III Donald S. Ryan

·

J.E. Sande~ Alex G. Sanderson Daniel K. SchiC'ffier Eugene L. Schiciller Don M. Schnipper Isaac A. Scon. Jr. Leonard L on Mary Davies Scorl Frank B. Sewall Dennis L Shackleford John M. Shackleford, Jr. John K. Sh"'burger • J"'es B. Sh,rp H'rold Sha<p< · Srephen M. SIwum • J.LSh'm,Jr. J. Michael Slr.lw Kenneth R. Shemin William E Sherman ScOtty Shivdy Robert Shults Sln'en T. Shults H'rold H. Simpson. II James Marlon Simpson. Jr. Jack Sims Ted C. Skokos Rodney E. Sialer Howard L Slinkard Berl A. Smith Berl S. Smith Donald H. Smilh Douglas O. Smith. Jr. Griffin Smith Laura H. Smith Ray S. Smirh.Jr. Robert D. Smilh, III Rodney K. Smith William J. Smith Frank Snellgrove. Jr. David Solomon Thomas E. Sparks

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James V. Sptncer, III James D. Spron Roy E. Stanley Wilton E. Stttd Galc: B. Siewan Jean D. Stockburger William M. Siocks Thomas S. Stone O.H. Storey, III Thomas S. Streetman Leonard P. Strickman Joseph A. Strode John EStroud, Jr. Paul Sullins William H. Sulton 1imolhy R. Tarvin Rex M. Terry William L Terry Lee Thalhc:imc:r Maryin D. Thaxton Ho}, Thomas Robert F. Thompson lUy Thornton Thomas P. Thrash Joh n R. Tisdale Win A. Trafford Roben D. Tnmmell William H. Trice, III N. W.Jls Trimbl, Otis H. Turner Edgar J. Tyler Fred S. Ursery David B. Vandergriff A. Glenn Vasser Robert C. Viltitow Eddie H. Walker, Jr. w.J. Walker James R. Wallace Larry C. Wallace G. Chris W,lrh,lI c.R. Warner, Jr. John J. Walkins Frank L Walson, Jr. John ~wey WalSOn 1imothy E Warson. Sr. Royce Weisenberger, Sr. James E. Wesl Bernard WhC:l5lonc: Bud B. WheulOne Frank B. Whitber:k Frank L Whitber:k Chris E. Williams Richard A. Williams Roben H. Williams W. Jack Williams, Jr. J. Gaslon Williamson R.Jph E. Wilson Roben M. Wilson, Jr. William R. Wilson. Jr. RuSSC'1I B. Winburn Teresa M. Wineland Carolyn B. Wilhmpoon Tom D. Womack Henry Woods Joe D. Woodward Richard H, Wootlon Roben R. Wtight, III Susan Webber Wright Terry F. Wynne W. Kelvin Wyrick Damon Young H. David Young Paul B. Young Robert E. Young

9

The Arkansas Bar Foundation acknowledges with grateful appreciation the receipt of memorial gifts, scholarship contributions, honorariums and other donations to the Foundation during the 1997-98 year. This list represents gifts, not including pledge payments, received from July 1, 1997 through April 30, 1998. We thank you for your support.

Nancy H. Bailey

Ledbetter & Associates LTD

W Christopher Barrier

Faculty and Staff of Lynch Dtive Elementary

Pat and Buddy Blass

Ronald A. May

Comer Boyett, Jr.

Judge Robin L. Mays

Adrienne Brietzke

James H. McKenzie

Carhi Compton

Judge James M. Moody

Bettye L. Curris

Walter R Niblock

Philip E. Dixon

James D. Sprott

Judge John and Annis Fogleman

Barbara Tarkington

Mr. and Mrs. Julian B. Fogleman

Mary Holt Truemper

Judith Gray

Mr. and Mrs. Jack M. Wtlhelm

Fred H. Harrison

Judge William R. WIlson, Jt.

Don Hollingsworth

Judge Henry Woods

Judge Jack and Jane Holt

Dr. Robert R. and Judge Susan Webber Wright

Catherine L. Hughes

1998 ANNuAL AWARDS These awards are given jointly by the Arkansas Bar Foundation and Arkansas Bar Association and presented at the Arkansas Bar Foundation Fellow's Dinner during the annual bar meeting in Hot Springs.

OUTSTANDING LAWYER AWARD JAMES H. MCKENZIE, PRESCOTT

Given in recognition of excellence in the practice of law and outstanding contributions ro the profession.

OUTSTANDI G LAWYER-CITIZEN AWARD CHARLES B. ROSCOPF, HELENA

For recognition of outStanding participation in and excellent performance of civic responsibilities, and for demonstrating high standards of professional competence and conduct.

C. E. RANSICK AWARD OF EXCELLENCE JOHN P. GILL, LITTLE ROCK Given in recognition of extraordinary service ro the legal profession.

OUTSTANDING LAWYER-HUMANITARIAN AWARD BUD B. WHETSTONE, LITTLE ROCK

To recognize outstanding humanitarian service.

OUTSTANDING LOCAL BAR ASSOCIATION PULASKI COUNTY BAR AsSOCIATION SEBASTIAN COUNTY BAR AsSOCIATIO

Recognizing outStanding activities which enhance the position and standing of the legal profession.

ARKANSAS BAR FOUNDATION WRITING AWARDS GENERAL WRITING TODD A. GREER "January I, 2000: Just Another Day at the Office?"

Winter, 1998 issue, Tht Arkamas Lawytr magazine

LEGAL WRITING FRANCES FE DLER ROSE ZWEIG

"Shielding Volunteers from Ton Liability" Fall, 1997 issue, Tht Arkansas Lawytr magazine 7/'e comel/ts of tillS report reflect aall'ltifs ofthe Arkamas B,lr FO/lndation from j/lry I, 1997thro/lgh Apn130, 1998.

1997-98 BOARD OF DIRECTORS OFFICERS PRESIDENT A. Glenn Vasser, Prescort

VICE PRESIDENT James D. Sprott, Harrison SECRETARy-TREASURER Bradley D. Jesson, Fort Smith EASTERI\ BAR DISTRICT 1998 Donis Hamilcol1, Paragould 1999 Bobby McDaniel, Jonesboro 2000 Lucinda McDaniel, Jonesboro WESTERN BAR DISTRICT 1998

Martha Miller Harriman, Van Buren

1999 David K. Harp, Fort Smith 2000 Bradley D. Jesson, Fort Smith CENTRAL BAR DISTRICT 1998 Richard A. Williams, Little Rock 1999 Thomas L. Overbey, Little Rock 2000 Nate Coulter, Little Rock SOUTHERN BAR DISTRICT 1998 Worth Camp, EI Dorado 1999 Ed McCorkle, Arkadelphia 2000 A. Glenn Vasser, Prescott NORTHERN BAR DISTRICT 1998 James D. Sprott, Harrison 1999 David Matthews, Rogers 2000 Timothy R. Tarvin, Fayetteville EX-OFFICIO Russ Meeks, Immediate Past President, Arkansas Bar Foundation Paul B. Young, Chair, Trust Commirtce Jack A. McNulty, President, Arkansas Bar Association ARKANSAS BAR FOUNDATION COMMIHEE CHAJRS TRUST

BUILDING

Paul B. Young

Russ Meeks

INVESTMENT

SPECIAL PROJEct'S Stephen M. Sharum

James B. Sharp AUDIT Thomas L. Overbey

WRITING AWARDS

AWARDS A. Glenn Vasser

ABF/ABA JOINT PlANNING ADVISORY J. Thomas Ray and Richard A. Williams

FOUNDATION STAFF Ann Dixon Pyle. Execurive Director Joyce Bobbin, Administrative Assistant

Victor A. Fleming

probation, the courr may review his or her compliance wirh a hearing every rhree months.

DELINQUENCY PROCEEDINGS A delinquenr acr is an acr commined by a child who is between the ages of ren and eighteen thar would be a crime if com mined by an adult. \\then a child commits a delinquem act, he or she faces a delinquency proceeding in juvenile court that looks and feels a lot like a criminal proceeding.

Children are nor tried by juries, bur do have the right to an attorney, the right ro have the state prove their case beyond a reasonable doubt, the right to cross examine witnesses and rhe riglH (Q presem a case on (heir own behalf. Although delinquency proceedings are basically civil proceedings in which the rules of civil procedure apply, the rules of criminal procedure also apply.

Delinquency dispositions are dramatically differem from adult sentences. Unlike adults who are given a semence with a definite term of years, children who are adjudicated delinquem are often given indeterminate senrences.

The goal of a delinquency disposition is rehabilitation. While the severity of the offense is a factor considered in juvenile dispositions, the court has authority to order whatever services permitted under that sratute that would lead to rehabilitation and prevent a child from further delinquent acts.

Parems can also be given sanctions or ordered to partici pate in rehabilitative services.

Although commitment to the Department of Human Services Division of Youth Services is often considered the most

severe disposition, many juvenile practitioners know rhat a juvenile probation disposition with restrictions of liberty and lengthy treatmem orders can be more difficult than a DYS commitment.

parental righrs only when there is an alternative permanent placement for the children which usually means making the children available for adoption.

FAMILY IN NEED OF SERVICES DEPENDENCY/NEGLECT PROCEEDINGS A dependency/neglect proceeding involves an allegation of abuse, abandonment or neglect of a child or children by a custodian.

Generally, these proceedings begin with a Department of Human Services petition although anyone can file a petition of dependency/neglect. If the allegations are proven, the court must decide in a disposition hearing where the children will Iive and what services will be provided to the family. The overall goals of (hese proceedings are (Q protect children and rehabilitate natural families if at all possible.

If the abuse or neglect is severe, the parent is incarcerated for a substantial period of time, the patent is convicted of murdering or felony assault of one of their children, the parent has abandoned the child for a year, or services have been provided for over a year and the family has not been rehabilitated, the state or an anomey ad litem can move to terminate parental rights. Due to the severity of the disposition, many Constiturional requirements apply, including a standard of proof by clear and convincing evidence, right [Q an attorney and right [Q an appeal.

The COllft must decide whether specific statutory grounds to terminate have been met and whether it is in the best inrerest of [he children to terminate their relationship with their parents. The COUft may terminate

When a child is running away from home, skipping school, commirring delinquent acts under the age of ten or beyond control of his or her custodian, a petition seeking an adjudication that this child belongs to a family in need of services can be filed. Nthough the name would suggesr that these are cases involving parental misconduct, an adjudication in these cases focuses on the child's conduct. If the allegations in the petirion are proven, then the court can proceed to a disposition hearing and order services for the whole family.

Although juvenile courts need lawyers who have specialized in these ofren complicated marters of childhood and family, rhere are nOt enough lawyers willing to adventure into these proceedings. The children of our stare need lawyers willing to rake these cases from rime to time who will spend the time reading rhe juvenile code, familiarizing themselves with services and childhood developmenr issues and preparing for the proceedings. In a child's eyes, a juvenile disposition can mean the loss of his family or his childhood. There are no greater losses to a child.

Gerard Glynn is an Assistant Professor of Law and Director of Legal Clinic at the University of Arkansas at Little Rock School of Law. He specializes in juvenile law.

1'01. 11,10. mall 1l9S The .Irkmas Lawipr II

My Client Is a Child!

When I decided to enter private practice, I knew what one of my areas of concentration would be. AJI my life it has been my desire to work with children and what berrer way than ro be an advocate. However, I was not quite prepared for all the ethical dilcmmas I would face when representing children. In rhis article I hope briefly to discuss the lawyer's role and ethical considerations when representing children in delinquency maners. I am mindful that juvenile law consisrs of other areas and that there are Other ethical considerations; however, I primarily represent children in delinquency marters.

I undersrood Rule 1.2 of the Model Rules of Professional Conducr and vowed to keep it etched in my brain. Rule 1.2 states in pertinent part "rhat a lawyer shall abide by rhe client's decision concerning the objectives of reprcsentation. . ." I would often find myself saying, "My client is a child and why would I abide by the wishes of a child?" I soon learned thar representing the child was not the problem; nOthing prepared me for one of the biggest ethical dilemmas in juvenile proceedings: THE PARENT The parent pays the legal bill, chooses rhe lawyer, and attempts to guide the direcrion of the representation. In my pracrice I try to emphasize to the parents that they may be paying rhe legal bill; however, my obligation is to the child-client. The three examples below should help explain what I mean.

Mrs. 0 calls ro make an appointment because the Court has informed her that she does not qualify for a public defender. Afrer the appointment she assured me that she understood that her children were my clients. Throughout the proceedings ir became clear to me that Mrs. 0 did nor understand; she would ask me to force the kids to plead guilty and even question my morals because I chose to listen to my clients who denied any involvement in the alleged crime. Mrs. 0 asked if she could fire me. but I tOld her that she did nOt owe me any more money and I was from now on representing the children free.

I have represented Mr. and Mrs. E's children in the past. One child gets into trouble again and the parents call for my services. I inform the parenrs that the child would be better off with anOther arrorney; the child agreed. The parents wanted to select the

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attorney for the child; however, I felt that I could not represent the child if he did not feel comfortable with me.

The Court appoints me to represenr Mr. and Mrs. F's child who the State has charged with a misdemeanor. The child is in a group home, insurance has expired, and the only way the child can continue in rhe group home is through court supervision. By rhe time I enter the case the matrer is set for trial; however, the State is nOt prepared to go forward. I inform my client and his parents that I will ask for this matter to be dismissed; however, the child after talking wirh his parenrs agrees to a continuance so the child can stay in the group home. The new trial dare comes around and again the State is not prepared to go forward. After telling my client I would ask for a dismissal, my client admits rhe allegations after conferring with his parents. Eventually the child violates his probation and is committed ro the custody of the Department of Human Services.

In each example I was never prepared ro deal with such dilemmas. I read and understood the rules, but nothing quite prepared me for the baptism. The parent side of me agreed with Me. and Mrs. F; however, I was the atrorney, nor the parent, and myobligation was ro my client. The duty of independent and zealous representation outweighs the lawyer's personal assessment of a child client's situation. 1 In 1967 the Unired States Supreme Court decided in In re Gal/tt 2 that a child in delinquency cases was enrirled to certain rights. includ.ing the right to counsel. The Court emphasized the role of counsel when it stated that counsel should help rhe juvenile to "cope with problems of law, to make skilled inquiry into the faCtS, to insist upon regularity of the proceedings, and to ascertain whether rhe client has a defense and to prepare and submit it,"3 Some scholars agree that rhe role of the arrorney after /11 re Gal/Lt is ro advocate for his clients' wishes and anything shorr of that might violate the rule of professional conduct. 4 In 1996. Bruce A. Green and Bernardine Dohrn reviewed the recommendations of a group of lawyers, judges, legal scholars, and represen ratives of Other professions studying the ethic.,1 issues in the legal representation of children. S One theme embraced by the

By]. Leon]ohnson

worlUng group was that lawyers serve children besr when they serve in the role as arrorney, not as guardian ad litem. 6 Afrer reading rhe article, it appeared to me that rhey (lawyers, judges, er al.) found rhe task of defining the role of the counsel for children ro be difficult'?

As the article seems to state, rhe attorney is forever in a quandary because "representing children differs from representing other c1ients."8 I find that I have to check my role constantly; at the beginning I am the advocate, but at some point I may be called upon to look our for the best interest of the child.

If evidence shows that they should nor return the child home but the child wishes to go back home, what am I to do?

Model Rules of Professional Conducr Rule 1.14 states in part that if the client is unable to acr in his or her own best interest the arrorney may ask for a guardian.

Nevertheless, by asking for a guardian am I violaring the confidences of my client? This rule is easy to apply when the child is very young or is slightly impaired mentally; however, the rule is hard to apply if your client is a healthy, football playing, srraighr A, sixteen-year-old.

The lawyer must determine if the child can make sound judgments, and if the child cannot make sound judgments the only alternative is to follow Rule 1.14. However, when the lawyer determines rhat the child is capable of making sound judgmencs, the lawyer is bound to follow the goals ser by the child. The arrorney may advise and counsel, but the decision is ultimately the client's.

The attorney's proper role is to represent the client, leaving the Court to do what is best for rhe child.

I do not advocate excluding the parents from the decision making process. I believe the lawyer has an obligation to explain to the child and the parents the different services that are available. The parents have trusted me with their child and I have become a pan of their family; however, the rules of conduct still bind me. Nor do I suggest that an attorney ignore his common sense and compassion because the lawyer will soon find out that most children will seek the goals ser by their parents.

When you represent a child I advise that you first find out if the juvenile is comfortable with you as his or her atromey. Next

find aU< if [he child undemands [he delinquency process and can make sound decisions. Lastly, I wouJd advise that you understand your role as an anomer. Remember that your obligation is to your diem. \'Vhen dealing with the parenrs, juSt explain to them that everyone involved is going CO the same place but you all arc raking differenr roures to get there.

Most imporramly. nore that if you talk co the child with the parems present, you may waive any claim of confidentiality. As my good friend and colleague, Gerard Glynn, reminds me, the parent-child privilege does not CXISr.

Again, [he e[hica1 dilemmas you face as an attorney representing children will vary in dependency proceedings and family in need of services proceedings. but the child is nill in need of an advocate who knows that the

child is their c1iem.

EndNotes I. Linda L. Long, "When [he Clienr Is a Child: Dilemmas in [he Lawyer's Role," 21 J. Fam. L. 607, 621 (I 982).

2. 387 U.S. 1 (1967).

3. Id. ar 36.

4. Lisa A. Srranger, "ConAicrs Berween Arrorneys and Social Workers Represenring Juveniles in Delinquency Proceedings," 65

Fordham L. Rev. I 123, 1137 (I996), and Samuel Davis, "The Role of rhe Arrorney in Child Advocacy," 32 J. Fam. L. 8 I 7 83 I (I 983-84).

5. "Recommendarions of the Conference on Ethical Issues in the Legal Representarion of Children," 64 Fordham L. Rev. 1280 (1996).

6. Id. a[ 1294.

7. Id.ar 1297.

8. !d. a[ 1289.

9. Davis, supra, ar 831.

J. Leon Johnson is a solo pracrlfloner 111 North Little Rock who focuses his pracrice primarily on Jllvenile Law.

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Can You Be A Good Lawyer When Your Client Needs A Social Worker?

by Marcia McIvor

o you took this case and your client is a kid. A kid with appealing eyes who looks up at you and you want to help her... or a surly adolescem who won't make eye contact or answer responsively. It doesn't take much faCt invesdgadon to get the idea that this kid needs help in a lot of ways, some far beyond anything they taught you in law school. You know how to deal with the underlying aJlegations when they are that your client committed criminal acts or that your client is the victim of neglect or abuse. It's far less clear how to get the best outcome for your client from a pending COUrt action. The often used phrase, "the best interesrs of the child" is familiar, but does that tell you what to advocate for this client? What are this kid's interests, anyway?

Or, what would it be in her interest for the court to do? How can you find om? And, does "best interest" mean selecting me interests most essential to the client, such as health, education, and welfare? Are your duties as a lawyer any different when your client is a minor?

5

THE LAWYER-CLIENT RELATIONSHIP A minor is legally under the disability of minority. Even so, under the Arkansas

12 TIp ,Irkaosasl,lll!pr I"ol.ll No.lffaIl199!

Rules of Professional Conduce, Rule 1.14(a), the attorney's obligation to a client under a disability is ro "as f.'lr as reasonably possible, maintain a normaJ c1iem-lawyer relationship with the client."

The commcmary to that rule poinrs om that the normal relationship is based on the assumption that the client, when properly advised and assisted, is capable of making decisions about important matters. The commentary also notes that the law increasingly recognizes intermediate degrees of competence.

Children as young as five or six years of age have opinions entitled co weight in legal proceedings about their custody. A disabiliry does not diminish the lawyer's obligation fO treat the client with attention and respeCt, particularly in maintaining communlcauon.

The ma.ndate of this rule is ro implicate all the Other rules applicable to how an anomey represems a client competently and diligently, helping the client identifY her objectives and cffcctiveJy advising so that the client can make decisions ahom the matter. Involving a minor client in decisionmaking is like involving any other client who may have diminished capacity in making legal decisions. I['s the anomey's role ro explain the process, from investigation through court hearings. The attorney also

explains the decisions that are the c1iem's and assists the client in arriving at those decisions. To provide this kind of legaJ counsel to a child you will need to understand the client's level of comprehension, and gear your explanation to that level.

Both your abiliry to communicate with your client and your advocacy for her require you to investigate aspects of your client's lifeinvestigation and fact-finding nOt tOO differem from that in a personal injury or disability case. It is important for you to know the c1iem's medical history and functionaJ Status, education and abilities, and relationships with others in the client's environment.

Health Issues: Find out the young child's health history, including birth trauma. Is she on any medications, including over-thecoumer medications? They can alter behaviors that could affect the young person's performance in school or in residemiaJ placemenrs. \Vhat was prescribed when, for what symproms, with what effects on behavior?

Is the child under any current medical care or does she have medical needs that should be followed? Are immuni7.ations and dental care up to date?

Mental Health Issues: Is the child currently in any therapy or counseling? Has any been recommended? Do teachers, par-

ents or relatives identify any behavioral problems or emotional needs mat signal the need for therapy or counseling? If the client is in therapy, what are the qualifications of the neating professionals? What is the frequency and length of treatment sessions?

What are the objectives of the treatment and what progress has been made?

Family and Environment Issues: What is the family composition and history~ What are the relationships between your cliem and siblings, and extended family?

Look for strengths of the family and your diem as well as problems such as paremal disabilities or domestic violence. Substance abuse by parems can produce many problems, such as fetal alcohol syndrome, that can result in physical and central nervous system defeers, behavioral disorders, inappropriate sexual behaviors and difficulties understanding cause and effecr. If there has been abuse by a parent figure or other adult relative to your client, look closely at the relationship of the child to the non-abusing parent before concluding that your client will be safe with that parent. Be alert to red Aags such as role reversal, where the child has assumed a protective relationship with the parent.

Education [ssues: How well does the young person function in school~ Is she performing at grade level or below in basic skills such as reading and math~ Is she struggling in cerrain subjects~ Have there been serious discipline issues or disruptive behavior at school or home? Has she ever been suspended or expelled? Is she even in school, or has the legal matter affected her school standing? Has she been idenrified as having an educational disability, or been tested for learning disabilities, attention deficit disorder, emocional disturbance, or some similar educational problem? If so, is there an IEP (Individual Education Plan) in place and is it being followed? IDEA, the Individuals with Disabilities Education Aer, p.L. 10S-17, guarantees children with disabilities a free public education, including related supponive services. The State has an affirmative obligation ro identify and assess children suspected of having an educational disabiliry. This law requires States ro provide services ro children who have been sllspended or expelled from school. However, recent changes allow states ro decide not ro provide services [Q children in adult correctional facilities if they were not identified as having disabilities before their 1I1carceratlon.

Obviously, for a young person wirh a dis-

abiliry interfering with the ability ro learn, the sooner this disability is diagnosed and appropriate educationaJ plans developed, the more likely she is to function at her optimum level.

COMMUNICATION WITH YOUR CLIENT In the first interview it is important ro establish the attorney-client relationship and explain how that role will work, since the young person may suddenly have a number of strangers taking new roles in her life. You must explain confidentiality and any limits to confidentialiry. If a child believes what she says will be kept secret, she can feel betrayed if it is revealed, and her willingness to communicate will shut down. The requirement of Arkansas Rules of Professional Conduct, Rule 1.6, is that the lawyer muSt maintain confidentiality of information about a c1ienr unless disclosure is authorized by the client.

The exception in Rule 1.6(b)(l) allows the lawyer to reveal information to prevent the client from committing a criminal act.

The lawyer should explain the criminality of what the client expresses an intention to do and the possible consequences, trying to persuade the client to act within the law.

Commentary to this rule emphasizes that disclosure of confidences should be no greater than what the lawyer reasonably believes necessary to the purpose of preventing the criminal conduct.

In dependenr-neglect cases, the statutory obligations of an attorney ad litem may be a limitation ro confidentiality or a barrier to frank communication with the child, because the Statute requires each ~I.[[orney ad litem to communicate the juvenile's wishes to the couf[ if those wishes differ from the attorney's determination of the child's best

inrerests (A.C.A. § 9-27-315 (f). If rhe attorney seriously considers all the needs of the client, and if the client has been appropriately advised and assisted in decisionmaking, the two may not diverge, bur the possibility of a difference between the rwo views should be considered at the ourser.

An attorney ad litem can explain ro the defendant juvenile client in a dependency neglect case that parr of the anorney's dury is to help the juvenile express ro the judge the child's wishes and concerns and the attOrney's concerns for the child as well. If the two views diverge, the attorney ad litem should consider petitioning the court [Q appoint an attorney to advocare for the minor's express objectives.

It can be troubling to have the child client disclose information about abuse by someone such as a parenr, if this information is expressed in confidence to the lawyer.

Unlike doctors, nurses, teachers, school counselors, social workers, mental health professionals, law enforcement officials and others who are required ro make reports when they have reasonable cause to suspect child maltreatment, attorneys are nOt required reporters under the Arkansas Child Abuse Reporring Act, A.C.A. § 12-12-507.

The disclosure of information about abuse should be treated as any other disclosure by a client; it should nOt be revealed unless the client consents after consultation.

PREPARING THE CHILD FOR COURT If your young client is to be a witness, it will be imporram to prepare the client for the experience with goals of reducing the srressfulness of the experience and easing anxieties the client will feel. Preparation, of course, should not mean coaching about facts. Great care should be taken to avoid

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even subtle reactions that will suggest co a child what the answer co a question should be. or that an answer is wrong, or right.

Explain the court process in terms the child can understand. With children under ten, abstract ideas will be difficult co grasp, but a simple chronology of whar will hap~ pen can be given. The child needs co know where she will be and with whom, who else will be there, especially people she knows, and the jobs of those she doesn't know. such as the judge, the court reporter, and other attorneys. Explain rules of the courtroom

SIDEBAR 1 In J995 tlu American Bar Association released 'It Cali for JllStice: An assesrmellt of Access to CounseL and Quality ofRepresentation in Delinquency Procudings." Some ofthe findings ofthis comprehensive assessment include:

"The assessment raised serious concerns that the interests of many young people in juvenile court are significantly compromised and that many children are literally left defenseless. "

that apply to the child, such as speaking when it is her rum, and talking imo the microphone, not just shaking her head.

Connect the unfamiliar (Q what she is famil~ iar with, such as school.

The child should know the difference between a lie and the truth, and what it means ro take the oath. The child witness should be assured that she won't be yelled at in court; the judge and bailiff are there to keep things safe. As with adult witnesses, encourage your client to say so if she doesn't understand a question, nor JUSt to guess at

TOXICOLOGIST/ FORENSIC SCIENCE

"One of the most disturbing findings of the assessment is [hat large numbers of youth across the country appear in juvenile couct without lawyers: for example. 34% of the public defender offices surveyed reported that some percentage of youth in the juvenile coures in which they work 'waive' their right to counsel at the detention hearing.

Reports by appointed counsel are very similar. Waivers of counsel by young people are sometimes induced by suggestions that lawyers aTe not needed bec.1use no serious dispositional consequences are anticipated or by parental concerns thar they will have to pay for any counsel that is appointed. These circumstances raise the possibility - perhaps the likelihood - - that a substantial number of juvenile waivers are nor 'knowing and intelligent.'''

"Children represemed by overworked attorneys receive the clear impression that their arrorneys do nO[ care about them and are not going to make any effort on their behalf.

One youngster said that his hearing 'went like a conveyer belt.,,, "An alarming aspect of juveni.le defense is the infrequency with which appeals are taken."

ROBERT W. FLOURNOY Ph.D., R.E.P., D.A.F.B.E. • Diplomate, Ametican Board of Forensic Examiners

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Inl. ii ,1n.llf'aIl199!

answers. Help your diem to undersrand gi\-ing answers wirh all the details she can remember.

Some sreps that are helpful to prepare a child to testify in court are also fraught with possible interpretation as coaching in cases involving abuse. Allowing a child to go see the courtroom before a hearing can ease apprehension and increase the child's ability to focus on answering, but it could be characteriz.ed as rehearsing. In visiting the courr~ room the child can sit in the wirness box and answer questions unrelated to the facts at issue. The attorney can audiotape the experience to have proof that the child was not coached, or have a neutral observer present who could be called to describe what occurred in the preparation.

ADVOCACY AT ALL STAGES OF THE PROCEEDI GS The disposition hearing is the aspect of juvenile court most distinct from the rest of the justice system. It may be your last and mOSt important opportunity to protect your diem's interests. At this hearing, studies or reports that have been ordered may be admitted into evidence, so you will need to obtain any such repons for advance review.

Prepared with adequate information about your client's needs, resources that can address those needs, and your c1iem's concurrence, you can advocate for a reasonable individualized disposition plan for your client. Counsel should caB witnesses such as reachers and relatives and present other evidence of the individual needs of your client,

and how [hose are met by the placement you propose. You should aJso obtain information on the process and timetable for placing your dient. Don't wait or just react (Q what is presented by the attorney for [he S[ate, or a probation officer, but ask and negotiate in advance. Consider making available information you have found on your diem to the person who will be making recommendations ro [he coun. The disposition hearing offers a great many opportunities to inAuence the Outcome of your diem's case, and indeed, of her life.

Knowing the resources that can assist in evaluating and addressing your diem's needs may be a complex and rapidly changing landscape if the attorney doesn't practice in this field regularly, but like knowing the tax consequences of probate proceedings, if you don't, you have an obligation to get information from those who do, such as regional memal health centers, social workers, probation officers, or a CASA (Court Appointed Special Advocate).

Review hearing, though often perfunctory, need not be. In each case in which a juvenile has been placed out of her home, the juvenile court is required by A.C.A. 搂 927-337 to have a review hearing every six months and determine compliance with the case plan. A review report should be provided seven business days prior ro the hearing. Six months is a long time in the life of a child, and there may be changes that call for a different plan, or the services caJled for in the plan may not have been provided.

The currenr coumer-reformation of juvenile justice is toward treating children who violate laws more like adults, imposing more punitive consequences on them; their deci-

sion malcing is given more weight. If sociery increasingly regards them as competent to know what is unlawful, and 35 able to conrrol their own behavior, then rhey muSt be entitled to legal defense as zealous as anyone else charged wirh criminaJ acts, if not more so. Any adjudication of a child has serious implication for that child, but the consequences of being adjudicated as delinquent are becoming increasingly grave.

Delinquent offenses can no longer be considered mere youthful indiscretions that will

have no permanent impact on the youth's future. Instead there is more likelihood that a delinquency adjudication may be considered and counted against the young person if there are subsequent charges of criminal acts. The need for vigorous advocacy when your diem is a kid has never been greater.

Professor Marcia Mcivor is the Director of Clinical Programs, and of the Yomh Law Resources Center at [he University of Arkansas School of L1W.

SIDEBAR 2 Resource Guide American Academy of Child & Adolescenr Psychiarry (AACAP), 3615 Wisconsin Ave., N.W, Washington, D.C. 20016-3007. Website: http://www.aacap.org/

American Bar Association Center on Children and the L1.w, 740 15th St., N.W., Washingron, D.C. 20005-1009.

Memory find ustimoll] in the Child Witness, Edited by Maria S. Zaragoza, ct aI., Sage Publications.

Symposium 011 Child Abu", Pacific Law Journal, Fall, 1996.

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Last Call DO YOU HAVE ANY MEMORABILIA? For the Centenniallssue of The Arkansas Lawyer, we're looking back over 100 years of lawyering. We're looking for photographs, old documents, programs, any momento of the past that can be photographed. If you have name tags from an old annual meeting, or any other unusual piece of trivia, we'd love to hear from you by FAX immediately, 501-375-4901, or if you have any items, please call Cathy Underwood at the Arkansas Bar Association, 501-375-4606 or 1-800-609-5668.

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lol.ll 10. I rill IUS

.Iudiriill .\d\'islII} Opinions The Honorable Richard E. Gardner, Jr. Chancery Judge Fifth Judicial District

R£: Advisory Opinion 98-04 Dear Judge Gardner:

In your request for an advisory OpinIOn dated Augusr 11, 1998, you srated that you have consistently recused in all cases wherein your first cousin, Stephen C. Gardner, participates unless all of rile parties involved sign a waiver. You have asked if your recusal is necessary. OUf response is that you must cominue [0 reclise.

PATERNITY CASE?

You pointed our that rhe definicion sec-

tion of the Code of Judicial Conduct provided as follows:

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affinity, or shall have been of counsel withour the consenr of the parties." (Emphasis

supplied) Arkansas Code Annotated § 28-9-212 sets forth the law in the state of Arkansas for

computing degrees of consanguinity and under this statute a first cousin would be within the third degree of relationship. See also, Article 7, § 20 of the Arkansas Constitution and Morton v. The Bemon PlIblishingCompany, Inc., 291 Ark. 620, 727 S.W.2d 824 (1987). We also consider that under these circumstances the judge's impartiality might reasonably be questioned under Canon 3E( I).

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.llIdiriillllisriplinill') \l't ions The Judicial Disciplinary· Acrions are written lIIId pf'O\'ided by rhe Judicial Discipline lind Disabiliry Co",,,,issio,,.

The Arkansas Judicial Discipline and Disabiliry Commission has announced the imposition of sanctions on twO (2) judges.

An informal adjustment was issued to Judge Gayle Ford of Momgomery County for F..iJing to tell all parries of a cominuing landlordltenant relationship he had with the artorney for one of the lirigams. A lener of admonishment was issued ro Camden Municipal Court Judge Edwin Keaton for failing to decide a pending case for more ,han ,wo (2) years.

CIRCUIT/CHANCERY JUDGE GAYLE FORD Judge Ford and his wife own a commercial building in Mounr Ida, and lease office space in that building to attorney Bill McKimm.

In April 1996. judge Ford presided at rhe trial of lItm Sumwyk lJ. Black.

Atlorney Bill McKimm represenred one of the litigants. Judge Ford did nor disclose the landlordlrenanr relationship between himself and anorney Bill McKimm to the other attorney. uch a relationship and the failure to disclose thar relationship are violations of the Code of Judicial ConducL During the hearing before the Judicial Discipline and Disabiliry Commission, judge Ford agreed to disclose rhe landlordltenant relationship bet\'1een himself and McKimm in aJl future cases in which anorney Bill McKimm appears. judge Ford also agreed ,ha, he will (recuse) step aside if, in any case, one of the notified litigants or attorneys objects.

presided in the case of Roy Woynt" Ross v.

Kt"1lnt"lb Crain. After the trial, Judge Keaton took the maner under advisement. Counsel for one (I) of the parties sent leners to the judge on four (4) separate occasions requesting that a decision be made in that case.

After the triaJ. Judge Keaton misplaced the case file and his trial notes. He did nor tell the litigants or their anorney that the case file was misplaced. In january 1998.

Judge Keaton located the case file, and on january 29. 1998. decided ,he case.

The Commission found Judge Keaton's delay in deciding the Ross v. Crain case to be unreasonable, and a failure to promptly dispose of the business of the court in violation of the Code of Judicial Conduct.

CAMDEN MUNICIPAL COURT JUDGE EDWI KEATON On January 25, 1996. judge KeatOn

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Sincerely,

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til\\ )'1 11' The ulIl'yer Disciplinary Acl;o"s are uT;ue" wul /Jrol,jl!ed by the Supreme Court of Arkansas' Committee 011 Professional Co"duct.

MR. ANDREW L. CLARK L1TILE ROCK, AR A IClIcr of reprimand was issued

(0

Mr.

Andrew L. Clark for the violation of Arkansas Model Rules of Professional Conduci 1.3 and 8.4(d) based upon [he Per uriarn complaim of the Arkansas Supreme Coun. The ICHer was

fill-d May 20, 1998. These Rules State that a la\'\'')'cr shall act with reasonable diligence and promprness in represeming ;} diem and that a lawyer shall not engage in conduct that is prejudicial to the administration of justice.

The record was opened with introduction of (he I)er Curiam opinion delivered by the Supreme Coun of the Sr:uc of Arkansas on OClober 30, 1997. The ref Curiam opinion grnnted Don Mallett's Pro Se Morion for Belated Appeal of Judgment. II was explained that the oun would nm ell[ ofT a defendant's right to appeal when his counsel had failed to follow mandatory appellate rules. Clark was Mr. Malleu's retained counsel during his trial on me charge of rheft of properly by deception held in Baxter County. According to Ihe Per Curiam, Clark filed a Nmice of Appeal after Mr. Mallen was found guilty by a jury on July 16, 1996, but prior to the filing of the Judgment on August 26, 1996. Subsequent to Mr. Mallen's filing of the pro se Motion, me Coun requesled an affidavit from Clark in response to the allegations made by Mr. Mallen. Clark first explained that he believed the otice of Appeal was timely filed. His srared rcason for nor perfecling the appeal was his cliem's failure to produce the $1,600 (a pay the court reporrer to begin work on the transcripr. In the Per Curiam, the Coun nored Ihar Clark had never been relieved as counsel for Mr. Mallen by the Itial coun. It was also clear from the record that he knew Mr. Mallen wanted to pursue an appeal of his conviction. Based upon these twO ~Cts, Clark was obligated to lodge a panial record in Ihe appellate Court since his client was unable to pay the COSt of an appeal. Once he had lodged a panial record, he could have filed a motion requesting that his c1iem be declared indigent and thereafter be appointed as his coun~ scI. or, in the alternati"e, file a motion to be relieved ifhis client was not indigent at mat time.

The Coun specifically explained that at no rime mayan attorney abandon an appeal because his client has nor paid for rhe trnnscript when he is aware of the client's desire to pursue an appeal.

The Coun also determined thar Mr. Mallen was indigent and appointed Clark to represent him in the appeal of his convicrion.

Following imroduClion of the Per Curiam

Ilisriplinill') \d inns

into the record of me disciplinary proceeding, his counsel, Jeff Rosenzweig, briefly addressed the Commirree on his behalf. Mr. Rosenzweig explained that his response to the Committee was an admission of fault and that he was in no way attempting to evade responsibility for rhe con~ duct as alleged. According to Mr. Rosenzweig, Clark neglecred (Q familiarize himself with Rule 16 of the Rules of Appelbte Procedure. He was unaware thar filing a partial record on Mr. Mallen's behalf was an oplion available to him.

However. he now understands that is the law.

After his counsel addressed rhe Committee, Clark did so on his own behal( He acknowledged that rhe Per Curiam opinion aceur.uely sums up whar happened in connection with Mr. Mallen's appeal. He admitted that he did not prepare the necessary research ro properly pursue Mr. Mallen's appeal when he first learned that he could nO[ pay for preparation of the lranscript of his criminal proceedings. His lestimony to the Comminee was thar after receiving the Per Curiam, he read all the procedurnl Rul and case law dealing with this type of situation. He admit~ red frnnkly that he did nOI realize that retained counsel could do whal the appclbte rules allow.

In mitigation, he offered 10 the Comminee proof thai he had filed a brief on Mr. Mallen's behalf and his appellate proceeding is progressing forward.

The Comminee based the determination rh:u

bOlh Model Rule 1.3 and Model Rule BA(d) had been violated on the same finding of faCt. The finding was th2t C1ark's failure to file the record on Mr. Mallen's behalf demonsrrared a failure of his duty to act with diligence in representing his client and also resulted in prejudice to the administr:uion of justice.

MR. DAVID P. HENRY L1TILE ROCK, AR A ICHer of reprimand was issued to Mr. David I~ Henry for the viol:uion of Arkansas Model

Rules of Professional Conduct 1.8(a) and 1.15(a) based on rhe complaint filed by Karhleen A. Holcomb Jackson. The lener was filed May 20, 1998. These Rules state, in peninent part, that a lawyer shall not emer into a business trans..1ction with a client or knowingly acquire an ownership, possessor)', security or other pecuniary interest adverse to a dient unless: the transaction and terms on which the lawyer acquires the interest are fair and reasonable to the c1iem and are fully disclosed and transmined in writing to the diem in a manner which can be understood by the client; the client is given a reasonable opporruniry 10 seek the advice of independent counsel in the transacrion, and (he cliem consents in writing thereto; and, a lawyer shall hold property of clients or third persons that is in a lawyer's pos~

session in connection with a representation sepa~ rate from the lawyer's own property, in a separate accoum maintained in Ihe State where the lawyer's office is situated, and complete records of such account funds shall be kept by rhe lawyer and shall be preserved for a period of five years after terminarion of the represenlarion.

Ms. Jackson averred that Henry was hired during February of 1993 (0 assisr her and her sisters in maners relative ro the probare of their father's estate. One of the matters associared with the Estate was an Individual Retirement Account (I RA) ro which Ms. Jackson's form('r stcpmother claimed an interest. Following settlement of the issues surrounding the distribution of the IRA, Ms. Jackson received a portion of those funds JUSt as her sisters, former stepsister and former stepmother did. The proceeds of the IRA were deposited inro Henry's trUSt account with dis~ bursements therefrom being made to Ms. Jackson and the other beneficiaries. Shortly after he disbursed Ms. Jackson's share of the proceeds to her, he requested that she loan him 52,500 for 30 days. Ms. Jackson's tcstimony was that he advised her that although he would be receiving a large settlement within a very shorr rime he was currently in need of some cash umil the seHle~ menl was received. Ms. Jackson testified that he would not have been aware that she had rhe funds available ro make a loan ro him had he not been her aHorney and rhar she wrote him a check for 52,500 on the same day he requested the loan. She explained that rhere were no prior discussions about a loan 10 him. The onl), discussion was the one the)' had with one another on the day the loan was requested and ultimatel)' made to him by his client, Ms. Jackson.

In addressing the issue of rhe loan made to him by his client, Henry asserted first in his wril~ ten response thai he did not violate Model Rule 1.8(a) because the loan was a personal loan and did nOl involve a business relationship Wilh a client. Henry asserted that Ms. Jackson worked for a law firm and had ample rime to seek advice before the personal loan was made. However, she began her employment with the law firm three months after the loan was made. Henry testified thai during one of the many cordial conversations he had with Ms. Jackson during rhe representation, he expressed his need for a short term loan. According to him. Ms. Jackson quickly vol~ unreered. He also a ned that the loan was dis~ cussed many times and many times Ms. Jackson offered (Q loan the mane)' to him. Only after SC\'. eral conversations about the loan did Henry finally agree 10 accept the loan from Ms. Jackson which he adminedly repaid.

As ser Ollt previously. Ihe Commiuee unanimously found Henry viobted Model Rule 1.8(a).

The Committee's finding of facts upon which their decision was based was that Ms. Jackson was given no opportunity (Q seek the advice of

Ill.ll II. I ra1l199!

Tbr

Ir~amll.a\\)rr

II

till' ).1 11' independent counsel about the rransaction.

Henry's trust account records for the period of time from July 199 through April 1995 were made a part of the record during his d~ 110VO hear· ing. These records included the monthly summary statements, all cancelled checks, and all deposit slips for that period of time. From infor· mation arising OUt of Ms. Jackson's affidavit of complaint and from information comained in the file associated with the Estate proceeding, it was determined that certain funds owing to cred· itors of the Estate and to the Estare were nor present in Henry's trust account.

Henry testified that his rrust account was OUt of balance for close to an entire year. The deposi. tion of his former secretary, Jean Austin, was made part of the record of the proceedings. She tesrified that she was responsible for balancing the trust accoum but had become overwhelmed and had allowed the accoum to get our of bal~ ance. Henry acknowledged that he was ulrimate· ly responsible for the truSt account and for compliance wirh the Model Rules addressing rrust accounts. Initially, he testified that a portion of the Estate funds were present in his rrust accoum ar all times from deposit umil final distribution to Ms. Jackson. However, in larer testimony Henry acknowledged that his statement to that

IIiSriplillill')\rt inns

effect could not be true during those times when thete were negarive balances in his trUSt account.

He also admitted rhat rhere were instances of commingling his own funds with funds belonging to dients during the reflected time period.

When presented with a payroll check which had been written OUt of his trust account, he admitted that a payroll check should not have been wrinen from his trust account.

Henry also acknowledged that he maintained no ledger sheet nor other record in his office for the funds held on behalf of the Estate of Ms. Jackson's father.

The Committee unanimously found that Henry violated Model RuJe 1.15(a), based upon the testimony, evidence and his admissions. By his own admissions and the evidence presented to the Committee, it was determined that he did nOt hold the property of the Estate and creditors of the Estate which was in his possession in connection with his representation separate from his own properry. The funds belonging to the Estare and credirors of the Estate were not maintained in his trust account until disbursed. Further, he deposited funds belonging to him or his law firm into the account designated as his {(ust account.

The propeny of the Estate was not identified as such and appropriately safeguarded. In addition, he did not keep complete records of such

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I'ol.ll II. IIf'a1l199S

account funds.

In mitigation, at the commencement of the d~ 110110 hearing, Henry's counsel explained that he had agteed to address twO issues which Ms. Jackson wished to ha"e addressed in the Esrnte proceeding. First, he agreed to provide Ms. Jackson S156.95 still owed to the Estate. This amount had not previously been remined to the Estate by him because of a bookkeeping error.

Second, he agreed to provide Ms. Jackson a signed statement acknowledging that he teceived Estate properry valued at approximately 52,000 as partial payment of his fees for services provid· ed in connection with the Estate. It was Ms. Jackson's desire to presem such proof to the Probate Judge and finally close the Estate of her father.

MR. DONNY GE E GILLASPIE EL DORADO, AR The formal charges of misconduct arose from the Arkansas Supreme Coun case of CI~otis \'(/illis v. Slate ofArkansas, CR 95·1218. Donny Gene Gillaspie, Anorney at Law, EI Dorado, Arkansas, represented Cleotis Willis through trial in Union County Circuit Coun. Mr. Willis was found guilry of first-degree batrery and sentenced to thirry.rwo years in the Arkansas Department of Correction. Mr. Gillaspie filed a notice of appeal on behalf of Mr. Willis. The record was not filed timely with the upreme Coun Clerk and Mr. Gillaspie's Motion for Rule on the Clerk was granted. Additionally, the anorney moved for remand to the trial court for completion of the record. That motion was granted also and the record was subsequently lodged with the Clerk.

The Supreme Coun Clerk issued a scheduling order which set February I, 1997, as the date for Mr. Willis' abstract and brief to be filed. Mr. Gillaspie failed [0 file the documents on or before that date. The Supreme Coun Clerk sem a lener to Mr. Gillaspie advising him that he had ten days to file the documents or the marrer would be brought to the anemion of the Coun. Again, no response was received from Mr. Gillaspie. On March 10, 1997. the Anorney General of Arkansas filed with the Clerk a Morion to Dismiss Appeal. Mr. Gillaspie responded to the motion on March 19, 1997. with a Motion for Permission to File a Belated Brie( In his motion, Mr. Gillaspie stated that he was physically unable to prepare the abstract and brief because he was suffering from an acute, severe episode of clinical depression. On April 14, 1997, the Arkansas Supreme Court denied the Attorney General's mmion and granted Mr. Gillaspie's motion to file a belated brief. The Coun extended the time for Mr. Gillaspie fa file the brief to May 12, 1997.

Mr. Gillaspie failed to file the abstract and brief on or before May 12. On May 12, Mr. Gillaspie filed a Mmion for Additional Brief Time due to

tim}ll!, the acute, severe episode of clinical depression

from which he was suffering. The Supreme Court granted the motion and extended the time for filing rhe abstract and brief (0 May 19. Again, Mr. Gillaspie failed to file the abstract or brief by the Coun's deadline. On May 19, Mr. Gillaspie filed a second Motion for Additional Brief Time based upon the acute. severe episode of clinical depression. The Supreme Court denied Mr.

Gillaspie's request 011 May 27, 1997. On June 12, 1997, rhe Attorney General filed a Motion (0 Dismiss Appeal. The Attorney General's mOtion was granted by the Supreme Coun on July 14,

1997.

Mr. \'(Iillis filed a pro se Motion for Belated Appeal on February 3, 1998. In his morion, Mr. Willis srated that he was convicted in 1995, that he waTHed ro pursue an appeal, that Mr. Gillaspie had not filed an appeal on his behalf, that Mr. Gillaspie had nO( responded to his requests for information, and that he requested Mr. Gillaspie be relieved as counsel. On March 5, 1998, the Supreme Court granred Mr. \'(Iillis' motion, relieved Mr. Gillaspie as counsel, and appoinred substitute counsel. Mr. Gillaspie was directed to return the record of the proceedings to the Coun within seven days. Mr. Gillaspie returned only one volume within the seven day period of time.

The second volume of the record was returned following a reminder lener from the Clerk of rhe Courr.

The Comminee on Professional Conduct finds: I. That Mr. Gillaspie's conduct violated Model Rule 1.3 by failing to file an abstract and brief on behalf of Mr. Willis on three separate occasions: on or before the original due date of February I, 1997; on or before the rescheduled date of May 12, 1997; and, on or before the final date of May 19,1997. Model Rule 1.3 requires that a lawyer act with reasonable diligence and promplness in represenring a c1ienr.

2. That Mr. Gillaspie's conduct violated Model Rule 1.4(a) by failing to respond ro Mr. Willis' requests for information about the status of his appeal. Model Rule 1.4(01) requires that a lawyer keep a client reasonably informed aoom the Sta路 (Us of a matter and promptly comply with rea路 sonable requests fOl" infol"mation.

3. That Mr. Gillaspie's condUCt violated Model Rule 1.16(01)(2) by his failure to withdraw as counsel at three different stages in the appeal process: on or before March 19, 1997, when he filed a Motion for Permission to File a Belated Brief asserting that he was suffering from a physical or mental condition which prevenred him from representing his diem; on or before May 12,1997, when he filed a Motion for Additional Brief Time assening that he was suffering from a physical or mental condition which prevented him from representing his c1iem; and, on or before May 19, 1997, when he filed a Motion for

IIisl'ipliDill}\rtions

Additional Brief Time asserting that he was suffering from a physical or mental condition which prevented him from representing his client.

Model Rule 1.16(01)(2) requires that an attorney shall not represenr a c1iem or, where representation has commenced, shall withdraw from the representation of a client if the la\'Jyer's physical or memal condition materially impairs the lawyer's ability to represent the c1iem.

4. That Mr. Gillaspie's conduct violated Model Rule 3.4(c) by his failure {Q file an abstract and brief on Mr. Willis' behalf on or before February I, 1997, as was required by the Supreme Coun's briefing schedule; by his failure to file an abstract and brief on Mr. Willis' behalf on or before May 12, 1997, as was required by the Supreme Courr's extension; by his failure to file an abstract and brief on or before May 19, 1997, as was required by the Supreme Court's second extension; and by his failure to return the complete record to rhe Clerk of the Court within 7 days of the Coun's March 5, 1998, Per Curiam Order. Model Rule 3.4(c) requires that a lawyer shall not disobey an oblilr-ltion under the rules of a tribunal.

5. That Mr. Gillaspie's conduct violated Model Rule 8A(d) by his failure to file an abstract and brief on behalf of Mr. Willis on three separate occasions: on or before the original due date of February I, 1997; on or before the rescheduled date of May 12, 1997; and, on or before the final date of May 19. 1997. Further, Mr. Gillaspie's failures resulted in dismissal of the appeal. A pro se motion by Mr. Willis was necessary to reinstate his appeal. Following the reinsratement of the appeal, Mr. Gillaspie failed to rerurn a complete record of proceedings as ordered by the Supreme Court. Mr. Gillaspie's actions from December 1996 to March 1998, coUectively and singularly, caused a delay on Mr. \'(Iillis' appeal in the Arkansas Supreme CoUrt. Model Rule 8.4(d) states that it is professional misconduct for a lawyer to engage in conduct thaI is prejudicial to the administration of justice.

In his response to the allegations of misconduct, Mr. Gillaspie stared that he would have no objection to a requirement for treatmem, periodic reporrs to the Commirree, and immediate

JOHN

T.

BATES,

notification to the Committee of any disqualifying episodes of his acute, episodic depressive ill~ ness, should the Committee so direct. The Procedures of the Arkansas Supreme Coun Regulating Professional Conduct of Attorneys at Law, specificaUy Section 7E(7), permit the Comminee on Professional Conduct to impose probationary conditions for a period nOt to exceed twO (2) years.

WHEREFORE, it is the decision and order of rhe Arkansas Supreme Court Committee on Professional Conduct that DO Y GENE

GILlASPIE, fu"kansas Ba< No. 61010, be, and hereby is, REPRIMANDED for his conduct in this marrero Further, it is found that Mr. Gillaspie consented in his response to a requirement for treatmenr and periodic reports of his treatment by a mental health care provider. Mr. Gillaspie is therefore ordered, as a probationary condition of his reprimand, to obtain the services of a mental health care provider for a minimum period of six (6) momhs and fO direct his mental health care provider to submit to the Executive Director's office monthly reportS during the six-momh period of treatment. Failure to comply with this condition may result in further disciplinary or other action.

Dated: June I, 1998

MR. ED WEBB LITTLE ROCK, AR A letter of reprimand was issued to Mr. Ed Webb for the violation of Arkansas Model Rules of Pcofessional Conduct 1. 15(a)( I), 1.15(b) and 8.4(c) based upon the complaint filed by Vera McDonald. The letter was filed June 12, 1998.

These Rules state, in pan, that a lawyer shall hold property of diems or third persons that is in a lawyer's possession in connection with a represemation separate from the la,V)'er's own proper路 ty, in a separate account maintained in the state where the lawyer's office is situated, or elsewhere with the consent of the c1iem or third person; upon receiving funds or other property in which a diem or third person has an interest, a lawyer

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shall promptly nOtify the c1iem or third person, shall promptly deliver to the c1iem or third person any funds or other property that the dient or third person is entitled to receive; and, a lawyer shall nOt engage in conduct involving dishonesty, fraud, deceit or misrepresentation.

Mrs. McDonald teponed that during larch of 1997, she retained \'({ebb 10 provide legal services for her daughter, Melissa Michelle Hamm, in connection with a maner im'olving missing funds at Melissa's place of employment, Twin Cit)' Motors. Mrs. 1cDonaid was told that upon pa}'ment of 55,000, Webb and Gordon Humphrey, who was at thai time licensed to practice law in Arkansas, would be able to keep Melissa from going to jail. Had Twin City Motors pursued criminal charges against Melissa., she faced the possibility of up to thirt)' rears in prison.

Part of the money paid by Mrs. McDonald would be for Amazing Grace Ministries, an organiz..uion in which Webb was involved. BCCluse she was afraid for her daughter, Mrs. McDonald paid him 55,000 as requested.

A Promissory Note was prepared by Webb for Melissa 10 execure in favor of her mother, Mrs. McDonald. Ten days after Mrs. McDonald paid him $5,000, Webb and Melissa met with her at her place of employment. During that meeting, Webb advised Mrs. McDonald that he and Mr. Humphrey had reached an agreement with a rep~ resenrative of Twin City Morors. The agreement required payment of 54,500 restitmion (Q l\vin Ciry Motors. After such payment, Twin Ciry Motors would not pursue any orher action against Melissa. Mrs. McDonald provided a check to Webb in the amount of 4500 to pay the restitution. The markings on the back of the 4,500 check demonstrate th:u the check was cashed. nor deposited into a client truSt account to be held until payment was delivered to -I\vin Cit)' Motors. When Mrs. McDonald conraaed Twin City Motors on April 8, 1997. she learned that restitution had nor yet been made. Because she had pledged her home ro obtain the funds necessary to take care of this matter. Mrs. McDonald was very concerned when she learned restitution had not b«n made. According to Mrs. McDonald when she contaaed \Vebb about restitution nOI having been made. he attempted to secure more money from her. Following that conversation with Mrs. McDonald, he fired her daughter. Mrs. McDonald has had no subse· quem convers.uions with him.

Webb began his response by explaining that he was initially contacted by Melissa Michelle Hamm about her legal problems. He explained that Melissa and Mrs. McDonald were both advised by him Ihat rcstiturion to Twin City MOlOrs would be necessary to avoid prosecution of Melissa. According to \'Vebb, this advice was given during the initial meeting with rhe cwo of rhem. He asserted his belief that rehabilitation

II

Tbr

Ir~an\all,all)rr

Inl. n 10. Ill'a1l199!

attempts should aJso be made with Melissa. In an attempt to assist Melissa with rehabilitation, he employed her and paid her a salary. He assumed thar during her rime of employment Melissa. was replying her mother pursuant to the promissory note. Webb acknowledged that he cashed the 54,500 check written for restitution and only deposited 54.300 into his trUSt account. \Xlebb sent the check for restitution to Twin Cit}' Motors on April 21, 1997. He was surprised when the trUSt account check to Twin City Motors was returned because of insufficient funds in his rrU5r account. He blamed this incident on an accounting problem. He averred that the check 10 Twin Cit)' Motors did clear [he sec· ond time. Charges were ne\'er filed against Melissa by Twin City Motors. Webb asserted that in hindsight he realized that the check for rcstitution should have been deposited imo his Irust account. Although the delay in delivering funds to l\vin Cit)' Motors was not intentional, Webb accepled full responsibility for such delay.

Finally, he included an adamant denial in his response to the allegation that he engaged in conduer involving dishonesty. fraud, deceit or misrepresentation.

After reviewing his response, the Executive Director requested additional information from him. The information was requcsted so that the Committee could make an informed decision in connection with these formal charges of misconduct. \Xlebb promptly complied with che request.

In response to the request. he provided proof th:u he now maintains three separate accountS: (I) Webb Law Firm, PA, Client I:ee Trust Account; (21 AR IOLTA Founda.ion TR ACer. of Webb Law Firm PA; and, (3) Ed \Vebb and Associates Law Firm. \'<Iebb also provided the monthly statements on his TrU5t Account for the period March 1997 through January 30, 1998. These records assisted the Committtt in the decision making process related to the formal complaint filed by Mrs. McDonald.

MR. CHARLES E. DAVIS SPRJ COALE, AR The formal charges of misconduct arose from a Per Curiam Order of the Arkansas Supreme Coun in the case of 10mmy j. Davis v. Stau of Arka1lSns, CR 98·127. Charles E. Davis, Attorney at Law, Springdale. Arkansas, represented Tommy J. Davis in an appeal from the Carroll County Circuit Coun to the Arkansas Coun of Appeals. On September 17, 1997, Mr. Charlcs Davis filed a Notice of Appeal and Designation of Record :lnd thereafter requested an extension of time for the completion of the transcript. The request was gramed by Judge David Clinger.

Carroll County Circuit Judge, on December 12, 1997, extending the rime for filing the record

wirh the Clerk of the Arkansas Supreme Coun.

The signed order, however, was not filed of record with the Carroll CoUnty Chancer)' Circuit Clerk's office until December 17. 1997. \Vhen the record was lodged with the Supreme Coun Clerk on January 30. 1998. Mr. Davis was notified that the transcript was one day late and the record would nOt be filed. Mr. Davis then filed a Motion for Rule on the Clerk on February 4, 1998. to accepl the belated record. In his Motion. Mr. Davis adminoo responsibility for the f.ailure to file the extension order with the Circuit Clerk's office in a timely manner. The Committee made the following findings after consideration of the formal charges of miscon· dua and Mr. Davis' response thereto.

It is the finding of the Committee on Professional Conduct that Mr. Davis' conduct in failing to obtain a file-marked order within the time permitted by Ihe Arkansas Rules of Appellate Procedurc resulted in a violation of the Model Rules of Professional Condua, specificalI)', Model Rules 1.3 and 8.4(d). Model Rule 1.3 requires a lawyer to act with reasonable diligence and promptness in represenring a client. Model Rule 8.4(d) states thar it is professional miscon· duct for a lawyer to engage in conduct that is prejudicial to the administration of justice. Mr. Davis is hereby cautioned for his conduct.

Dated: June 16, 1998

MR.JAYERMU DHOCCARD EL DORADO, AR A letter of suspension was issued to Mr. Jay Ermund Hoggard for the violation of Model Rules 1.3, 1.4(.). 1.15(.), 1.I5(b) and 8.4(c) based upon the Complaint Before the Committee filed against him. The lener was filed.

July 20. 1998. These Rules stare. in part. thai a lawyer shall act with reasonable diligence and promprn in representing a client; a lawyer shall keep a client reasonably informed. about the statuS of a matter and promptly comply with reasonable requests for information; a lawyer shall hold property of clients or third persons that is in a la\\'yer's possession in connection with a representation separate from the law}'er's own property; upon receiving funds in which a dient or third person has an interest, a lawyer shall promptly notify the dient or third person and shall promptly deliver to the client or ['hird person any funds that the dient or third person is emitled to receive; and, upon requcst by the client or third person, shaJi promptly render a full accounting regarding such property; and, a lawyer shall nor engage in conduct involving dishonesty, Fraud, deceit or misrepresencation.

The Complaint was prepared from informacion arising out of a lawsuit filed against Hoggard by eighr of his former dicms. The lawsuit was

I,a\\~'rl' IIisl'iplinill'~' .\rtinns filed in the Chancery Coun of Union Counry.

The initial Complaim for Replevin and for

Accounting was filed against Haggnrd on April 22. 1996. He had previously been hired 1'0 pursue collection of debts owed (0 the diems who sucd him. Americ.. n L1wyers Quarterly (ALQ), Olle of his diems, had forwarded in excess of twO

hundred thousand dollars worth of claims

to

Hoggard for collection action. Prior to initiation

of the lawsuit, he failed ro rerum ALQ's files; failed to account for

COStS

forwarded to him;

failed to account for funds received by him through collection effort; and, failed

[0

remit all

funds calleered, less his fee. Five claims were forwarded to him for collection by the Columbia

Lise Hoggard failed

[0

return the files on the five

claims when requested to do so by his client; failed to account for expenses; and, fitiled to account for any money received on the five claims. Commercial Bar was anorher diem of his for whom he was ro pursue collection on past due accounrs. The claims upon which he was to pursue collection on Commercial Bar's behalf totalled in excess of $100,000. Again, Hoggard failed ro rerum files to this dient; t.1iled to account for advance payment of COStS; and, failed ro account for money received on the various claims sent ro him by Commercial Bar. Four other clients for whom Hoggard was ro pursue collection efforts were the Forwarders List, International Lawyers Company, the National List and WriglH Holmes Law List. JUSt as with [he other c1iems listed herein, he failed to rerum files (Q these clients and failed ro account for both advanced costs and money collecred on rhe diems' claims. The General Bar forwarded ro him in excess of $500,000 in claims upon which he was ro pursue collection. In connection with his representation of the General Bar, Hoggard failed ro rerurn files and failed ro provide informarion ro which his client was entirled and also needed. This was also a client for whom he railed to account for costS and monies collected. The Complaint filed in Chancery Coun was served upon Hoggard on April 27, 1996. Based upon his failure to answer the Complaint, A.rkansas Law deemed the allegations contained therein as being admined. A Partial Default Judgment was entered against him for amounts which were able ro be discerned had been collected by him on behalf of rwo c1iems witham access to the records he may have had but would nOt supply to his c1iems. At no rime has Hoggard ever responded ro the Chancellor abollt the lawsuit. Kendall Black, the anomey who filed suit on behalf of Hoggard's clients, provided an affidavit which was made an ex.hibit ro the Complaint Before the Comminee. Mr. Black provided information relaring ra his conducr in connecrion with his clients. Revealed in thar affidavir is evidence of his lack of diligence; fitilure to provide dients with staniS repons; failure ro rake requested

action on behalf of his cliems; and, fitilure to deliver funds owed [Q his clients.

His response began with an admission rhar a certain lawsuit had been filed against him in the Chancery Coun of Union County. He denied rhat he was ever served with the Complaint. He also denied any knowledge that a Judgment had been entered against him umil he received the Complaint Before the Comminee. He averred that he learned in late August or early September 1996 rhar an Order had been entered which directed him ro turn certain boxes of files over ro the Union County Sheriff's Departmenl.

Agents of the Sheriff's Depanmem took posses路 sion of the boxed files. He expressed rhat it was interesting to nore rhat he was found ro be indebted ro only rwo of his cliems in the Panial Judgment for amoums less than those amountS memioned in the Complainr. He also found it ilHeresring thar the additional diems were awarded nothing. Furrher, he acknowledged meeting Kendall Black and discussing these various cliems with him. According to Hoggard, his last meer~ ing with Mr. Black was on May 12, 1996, at his home. He averred that Mr. Black would have been speaking with Hoggard's atrorney if he had known he had filed a Complaim againsr him on April 22, 1996. Hoggard wholly denied that he ever raid Mr. Black rhat he commingled his own funds with those of his cliems. He also denied having rold Mr. Black thar he ulrimately converrcd client funds ro his own use. He asserted that he had never been notified of any losses suffered by his c1iems and had never been notified in which files he had failed ro be diligem nor in which files he had failed ro keep his c1iem or c1iems reasonably informed. Hoggard also explained that he had nor been provided specific information as to whar conduct may have vio-

lated Model Rule 1.15(a), Model Rule 1.15(b) or Model Rule 8.4(c).

MR. MARK STEVEN CAMBIANO MORRILTON, AR MARK STEVEN CAMBIANO, Arkansas Bar ID #80021, an anorney prncticing law pri. marily in Morrilron, Arkansas, emered a pica of guilty, in the United States District Court for rhe Eastern District of Arkansas on June 26, 1998, to the criminal offense of Aiding and Abetting rhe Causing of a Financial Institution to File a False Currency Transacrion Repon, Case Number:

4,97CR00045-001, a felony. On June 30,1998, a Judgment in a Criminal Case was filed of record in the aforesaid criminal maner, a file marked copy of which is appended herero.

The Arkansas Supreme Court Commirree on Professional Conduct (Commirree), with one member absem, and rwo members abstaining upon presentation of a file marked copy of the

judgment appended hereto found rhat Mr. Cambiano had been convicted of a felony and, wirh all voring members concurring, directed that disbarmem acrion be institured pursuant to the mandate of Section 6B( 1), Procedures of the Arkansas Supreme Court Regulating Professional Conducr of Atrorneys at Law (Procedures), and that an imerim suspension of Mr. Cambiano's privilege ro practice law under the authority of his Arkansas law license be imposed pursuant to

Seerion 7E(3)(a) and (b), and 8B(I)(a) and (b) of the Procedures.

It is therefore ORDERED rhar MARK

STEVEN CAMBlANO be, and he hereby is, SUSPENDED from the pracrice of law within this jurisdiction immediately upon the filing of this Order with the Clerk of the Arkansas Supreme Court.

MR. DANIEL HOWARD HARMON, IV BENTON,AR DANIEL

HOWARD

HARMO ,

IV,

Arkansas Bar ID #73051, an attorney practicing law primarily in Benton, Arkansas, was convicted, in rhe United States District COllrt for the Eastern Districr of Arkansas, of onc coum of Rackerering Acrs (RICO) and eleven (11) counts of Interference Wirh Commerce By Threats of Violencc, Case Number: 4:97CR00007-001, each one a felony. On May 29, 1998, a Judgment in a CriminaJ Case was filed of record in the aforesaid criminal matter, a file marked copy of which is appended hereto.

The Arkansas Supreme Court Committee on Professional Conducr (Committee), Wilh one member absem, upon presemation of a file marked copy of the judgmem appended herctO found that Mr. Harmon had been convicred of a felony and, with all members concurring, directed that disbarment action be instituted pursuant to the mandate of Section 6B( I), Procedutes of rhe Arkansas Supreme Court Regulating Professional Conduct of Attorneys at Law (Procedures), and rhat an interim suspension of Mr. Harmon's privilege to practice law under the authority of his Arkansas'law license be imposed pursuant to Section 7E(3)(a) and (b), and

8B(I)(a) and (b) of [he Procedures.

It is therefore ORDERED rhar DANIEL HOWARD HARMON, IV be, and he hereby ;s, SUSPENDED from rhe practice of law within rhis jurisdiction immediately upon the filing of this Order with the Clerk of rhe Arkans:ls Supreme COUff.

MR. WILLIAM ARTHUR MURPHY SHERIDAN, AR WILLIAM ARTHUR MURPHY, Arkansas

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l,il\\JPI' Bar 10 #76086, an anomer practicing law primarily in Sheridan, Arkansas, entered a plea of guilry, in the the United Srares DistricT COlin for the Eastern District of Arkansas on April 17.

1998, to four (4) COlllUS of the criminal offense of Suborning Perjury, Case Number:

4mCROOI96-002"

felony. On Apci120, 1998,

a Judgment in a Criminal Case was filed of record in rhe aforesaid criminaJ marrer, a file marked copy of which is appended herclO. The Arkansas Supreme Coun Committee on Professional Conduct (Committee), with one member ahsem, upon presentation of a file marked copy of the judgment appended herem found that Mr. Murphy had been convicted of a felony and, with all members concurring, direclcd that disbarmenr action be insritU(ed pursuant to the mandate of Section 6B(1), Procedures of the Arkansas Supreme Coure Regulating Professional Conduct of Anorneys at Law (Procedures), and that an interim suspension of Mr. Murphy's privilege to practice law under the authority of his Arkansas law license be imposed pursuant to Sections 7ÂŁ(3)(a) and (b), and

8B(I)(,) ,nd (b) of [he Procedures.

It is therefore ORDERED thar \XtILLlAM ARTHUR MURPHY be, ,nd he hmby is, SUSPE OED from the practice of law within this jurisdiction immediately upon the filing of this Order with the Clerk of rhe Arkansas Supreme Coure.

MR. NOLEN MICHAEL YARBROUGH FORT SMITH, AR Attorney Nolen Michael Yarbrough, 2508 South "L" Street, Fore Smith, Arkansas, Bar 1.0. #81172 has been suspended from the pracrice of law within the jurisdiction of this Stare for viola~ tion of the Arkansas Model Rules. The Commirrcc on Professional Conduct suspended the Arkansas Attorney's License of Nolen Michael Yarbrough for a period of one (I) year effective on Augusr 6, 1998.

Please be advised that a suspended attorney shall not be reinstated to the practice of Jaw in this Stare until the Arkansas Supreme Coun has received an affirmative vote by a majority of the Committee. If, and at such time as the Commirree may reinstate the anorney, he will be provided notice of the reinstatement and the effeaive date thereof.

NOTICE OF REINSTATEMENT OF ATTORNEY'S PRIVlLEGE TO PRACfICE LAW MR. GEORGE JAMES STONE The Arkansas Supreme Coun Com mince on

Itisl'ipliDiIl} .\l't inns

Professional Candua has carefully considered Mr. Stone's petition for reinstatement to the practice of law following his suspension from law practice imposed on November 17, 1997. It is the decision of the Committee to grant Mr. Stone's petition.

Therefore, Mr. Stone's period of sllspension from the practice oflaw is hereby terminated and he is entitled to engage in the practice of law within the Srare of Arkansas effective July 20,

1998.

MR. PHILLIP JACK TAYLOR FORT SMITH, AR The formal charges of misconduct upon which this Order is based arose OU( of information provided by Shane Perry, an anorney practicing in North Little Rock, Arkansas. On March 19, 1997, Phillip Jack Taylor, an attorney practicing in Fon Smith, Arkansas, filed suit on behalf of Forrest Construction, Inc. against the City of Greenwood, the mayor and the city council members, aU in their official capacity, and others. Mr. Taylor's c1iem sought relief from the city council's action in regard ro land use issues affecting certain subdivision property within the jurisdiction of the City of Greenwood. Mt. Taylor's client, adversely affected by the defendants' anions, alleged, among other things, that certain of the defendants engaged in conspiratorial and collusive conduct among themselves and with othets to achieve the decision giving rise to the litigation. By order of the Sebastian County Circuit Court entered on July 2, 1997, Shane Perry was substituted as counsel for the city council members and the mayor, Leon Hicks.

Mt. Taylor was aware of Mr. Perry's entry into the lawsuit and from August 6 through December 3, 1997, various pleadings and corte~ spondence passed between Mr. Taylor and Mr. Perry on behalf of their respective dients. On December 3, 1997, some five days prior to the trial of the marrer, Mr. Taylor, pursuant to statutOfy aurhority, served a subpoena and subpoena duces tecum on defendant Leon Hicks at the mayor's office. The subpoena directed the mayor to appear at trial and bring a lerrer authored by the mayor wherein he had vetoed an earlier action taken by the city council in regard to the matter in controversy. The affidavit of Leon Hicks avers that Mr. Taylor asked him, "Did you have help in making up your mind to veto the decision the council made?" While acknowledging some limited communication with the mayor, Mr. Taylor disputes the extent of the conversation as rdated by the mayor. However, there is no dispute that Mr. Perry was not present at the encounter or that he had not consented to such a convetsation between his c1iem and Mr. Taylor.

Mr. Taylor conrends that constitutional law and Rule 4.2 of the Arkansas Model Rules of Professional Conduct (Model Rules) authorizes him "to communicate with a governmental official about a matler involving a govcrnmelll agency." Mr. Taylor's reliance on those twO authoritative sources is misplaced. Constitutional rights of freedom of expression or to communi~ care with and inreract with public officials have no application to the circumstances and factual setting of the complaim before this Committee.

Model Rule 4.2 does not ptohibit all communications between an attorney and a parry opponent known to be represented by counsel. It, howevet, does clearly and specifically proscribe such communications "abom the subject of the representation" without consent of opposing counsel or the authority of law. Mr. Taylor's inquiry, as asserted by Mayor Hicks, amply demonstrates a direct connection to the matters in controversy alleged in the lawsuit brought by Mr. Taylor's dient.

Upon consideration of the formal complaint and the response submitted herein, the Committee finds, rhat on or about December 3, 1997, Mr. Taylor, in violation of Model Rule 4.2, in his representative capacity, knowing the person to be represented by counsel and without oppos~ ing counsel's consent or proper legal atl[horiry, engaged Mayor Leon Hicks in conversation relating to the subject matter of litigation to which Mr. Hicks was a parry opponent. Model Rule 4.2 requires that a lawyet, in representing adient, shall not communicate about the subject of rhe represenration with a pany the lawyer knows to be represented by another lawyer in the maner, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.

WHEREFORE, it is rhe decision and order of the Arkansas Supreme Court Committee on Professional Conduct that PHILLJP JACK TAY~ LOR, Arkansas Bar No. 73121, be, and hereby is, CAUTIONED for his conduct in this matter.

Dated: August 25, 1998

MR. JAMES O. CLAWSON LITTLE ROCK, AR

The formal charges of misconduct upon which this Order is based arose out of information referred ro the Committee by Honorable Mary Davies Scott, United States Bankruptcy Judge. The infonnation referred arose Ollt of James O. Clawson's representation of debtor, Brit K. Taylor, in a bankruptcy proceeding in Judge SCOtt'S COUrt. On January 31, 1997, Mr. Clawson, an attorney practicing in Little Rock, Arkansas, filed a Voluntary Petition for bankruptcy pursuant to Chapter 7 of the Bankruptcy Code. Both Mr. Clawson and his client signed

tim}(II' the Petition. Various schedules compleled by Mr. Clawson and signed by him or his client were attached and incorporated within the bankruptcy petition. Although Mr. Taylor held an equitable interesl in his mariral residence, Schedule A reflects thai hc had no interesl in any real property. Al the time the bankruptcy petition was filed, Mr. Clawson held funds in his trust accoum in which Mr. Taylor claimed an imerest.

There was no disclosure al the (ime of filing mat Mr. Clawson was holding money for, or on behaJf of, Mr. Taylor. Subsequem 10 filing for bankruplCY relief for Mr. Ta),lor, Mr. Clawson wrote at least four (4) checks ou( of his trust account for Mr. Taylor or on his behalf. Mr. Clawson failed to disclose these disbursemems to (he Bankruptcy Court or the Trustee at the lime (hey were made. Forty-l"\vo (42) days prior to fil~ ing for bankruprcy relief, Mr. Clawson had oblained a 520.000 senlemem from State Farm Insurance ompany in payment of a claim by Mr. Taylor. This settlement was concealed from the bankruptcy courr at (he (ime of the filing. By allowing Mr. Taylor 10 sign the Declarations containing f':llse statements and concealments, Mr. Clawson subjected his client to pQ[enrial criminal liability. Not until rhe first meeting of creditors did Mr. Taylor finally disclose rhat he had senled a personal injury claim. After Mr. Taylor's disclosure, Mr. Clawson advised the Trustee about the monies he held in trUSt for his client and how (he same were disbursed. None of the disbursemems made subsequem to Ihe filing of Ihe bankruplC)' petilion had been approved by the Court. In faCt, Mr. Clawson never sought CoUrt approval for those disburscmems. During (he course of Mr. Taylor's bankruplCY procealing, an Adversary Petition was filed against Mr. Taylor by his ex-wife. Mr. Clawson was given notice of the hearing but failed to appear. Although Mr. Clawson had been relieved in the case-in-chief, he had not been relieved in (he adversary proceeding. It was Judge SCOtt'S finding at the dose of the hearing in (he adversary proceeding (hat Mr. Clawson's diem signed (he schedules and statements with a "false oath." Judge SCOtt aJso explained (hat (here were "nol only inaccuracies but failures 10 list assets and a true statement regarding (Mr. Taylor's) financial affairs."

Upon consideralion of the formaJ complaint and response thereto, the Committee on Professional Conduct finds: I. That Mr. Clawson's conduct violated

Model Rule 1.2(d), Arkansas Model Rules of Professional Conduct, in Ihat, with knowledge of the true circumstance, he prepared, permitted and assisted his client in dle execution of, and flied a Bankruptcy Perition that fraudulemly concealed his c1iem's imcrcst in certain real properry; he failed 10 disclose Ihat he held money in trust on behalf of his diem obtained from a selr1emelH in the amOunt of 520,000, some

IS

Thr Irkmasl,aw!rr

101.11,10. Iff'11I199S

IliSrillliDiIl} .\l't ions

forry-l"\vo (42) days prior ro filing for bankruplCY relief; and, he Failed to disclose that, immediately prior 10 preparation of (he Petition, he had disbursed such funds from his trust account ro Mr. Taylor, on behalf of Mr. Ta),lor, and ro himself.

Modd Rule 1.2(d) requires, in pertinent parr, thai a la"'')'er shall nO( counsel a client to engage, or assisr a c1iem, in conduct that a lawyer knows is criminaJ or fraudulent.

2. Thai Mr. Clawson's conduct violared

Model Rule 3.3(a)(2), Arkansas Model Rules of Professional Conduct, by failing to advise the Bankruplc), Coun thai his client held an interest in real property; by failing ro advise the Bankruptcy Coun that he was holding funds in his attorney HUSt account on behalf of his client;

by F.tiling to advise the Bankruptcy Court that his client had received a 520,000 settlement from Stale Farm Insurance Company forty~{\vo days prior ro commenccment of the bankruptcy pro路 ceeding; and, by failing to advise the Bankruprcy COLIrt (hat immediately prior to commencing the bankruptcy proceeding, he made disbursements from his anorney trust account to Mr. Taylor, on Mr. Taylor's behalf, and to himself. Model Rule 3.3(a)(2) requires that a lawyer shall not knowingly fail to disclose a material fael to a tribunal when disclosure is nccessary ro avoid assisting a criminal or fraudulent act by the client.

3. That Mr. Clawson's conduct violated

Model Rule 3.3(a)(4), Arkansas Model Rules of Professional Conduct. by Failing 10 take remedial measures 10 apprise the BankruplCY Courr that Ihe evidence offered in the Pelilion mat Mr. Taylor owned no intcrest in real propcrry was false; by failing to rake remedial action to apprise Ihe BankruplCY Coun (hat his dient had cash a\'3ilable 10 him which was being held in Mr. Oawson's truSt account at the time of [he commencemCnt of the bankruptcy proceeding; by F.tiling 10 make Ihe Bankruptcy Court aware (hat forty.lwo (42) days prior 10 filing Ihe Bankruptcy Petition his dicm received a senlemel1l of 520.000 from Sute Farm Insurance Company; and. by failing 10 take any remedial measures ro apprise (he Bankruptcy Coun that immediately prior to filing the pe(irion he had disrribmed such funds to his client, on behalf of his client,

and

(0

h;msclf. Model Rule 3.3(a)(4) requ;res

[hal a lawyer shall not knowingly offer evidence that the lawyer knows to be false and shall rake remedial measures if (he lawyer has offered material evidence and comes to know of its Falsiry.

4. That Mr. Clawson's conduci violated

Farm Insurance Company forty-two days prior to filing the petition; and, (iii) no disclosure that disbursements our of his .morney trUSt accoum had been made to his client, on his cliem's behaJf, and 10 himself immediatd)' prior to the commencement of the bankruplCY proceeding; and, by his added failure 10 obtain court approvaJ for Ihe disbursements he made from his attorney trust account subsequent to the filing of his client's bankruplCY acrion. Model Role 3.4(c) requires thai a lawyer shall nm knowingly disobey an obligation under the ruJes of a tribunal except for an open refusal based on an assertion that no valid obligation exists.

5. Thai Mr. Clawson's conduct violated

Model Rule 8.4(c), Arkansas Model Rules of Professional Conduct, whcn he failed 10 disclose thc Bankruptcy Court that he hdd funds belonging (0 his cliem in his trust accoum al (he (ime of commencement of (he bankruplCY filing and when he failed to disclose that his client had received a senlement of 520,000 from Stale Farm Insurance Company forty-fWo (42) days prior to filing the petition. Model Rule SA(c) requires that a lawyer shall nOt engage in conduct involving dishonesty. fraud, deceit or misrepresentation.

6. That Mr. Clawson's conduct violated 10

Model Rule 8.4(d), Arkansas Model Rules of Professional Conduct, when in the Bankruptcy Petition he prepared, caused (0 be executed, and filed on his cliem's behalf, he sought to have dis~ charged debts owing to his client's ex-wife and debts he was ordered to pay in his Divorce Decree resulting in his client's ex-wife havinq to file an Adversary Petition in the Bankruptcy pro~ ceeding which causW the Bankruptcy Court to schedule and conduct a hearing; and. when he failed l'O appear before the Bankruptcy Court at the scheduled time, although he was provided notice of the hearing on the Adversary Pe(ition, he caused the Court 10 have ro make a determination in the adversary proceeding wilhout any information from him. Model Rule SA(d) requires thai a lawyer shall nO( engage in conduct that is prejudicial to the administration ofjustice.

WHEREFORE, il is (he decision and order of Ihe Arkansas Supreme Coun Committee on Professional Conduct thai JAMES O. CLAWSON, Arkansas Bar No. 90219, be, and hereby is, REPRIMA DED for his conduc( in this mat~ ter.

Dared August 26, 1998

Model Rule 3.4(e), Arkansas Model Rules of

be execured and filing a Bankruptcy Petition

MR. WILLlAM ARTHUR MURPHY SHERIDAN, AR

wherein [here is: (i) no disclosure that he was holding certain cash in his trusr account on behalf of his client, despite the requiremem of full disclosure; (ii) no disclosure that his client had received a settlement of $20,000 from Srate

Bar ID #76086, an attorney practicing law primarily in Sheridan. Arkansas, entered a plea of guilty, in the the Unired Stales District Court for

Professional Conduct, by preparing, causing ro

WILLIAM ARTHUR MURPHY, Arkansas

Lim}l'I' the Eastern District of Arkansas on April 17, 1998, to one (1) count of the criminal offense of

Suborning

Perjury,

Case

Number:

4,97CROO 196- 002, a felony. On Ap,;J 20, 1998, a Judgmcm in a Criminal Case was filed of record in the aforesaid criminal maner, a file marked copy of which is appended herem.

The Arkansas Supreme Court Comminee on ProFessional Conduct (Committee), with one member absent, upon presentation of a file marked copy of the judgmcnr appended herero found that Mr. Murphy had been convicted of a felony and, with all members concurring, directed that disbarment action be instituted pursuant (0 the mandate of SeClion 6B(I), Procedures of the Arkansas Supreme Coun Regulating Professional Conduct of Attorneys at Law (Procedures), and that an inrcrim suspension of Mr. Murphy's privilege ro practice law under the alllhoriry of his Arkansas law license be imposed pursuant to Sections 7ÂŁ(3)(a) and (b), and 8B(I)(a) and (b) of the Procedures.

It is rherefore ORDERED that WlLLlAM ARTHUR MURPHY be, and he h"eby is, SUSPENDED from rhe practice of law within this jurisdiction immediately upon rhe filing of rhis Order with rhe Clerk of rhe Arkansas Supreme Coun.

The following disciplinary decisions since March 1997 were Ilor printed in the previolls issues of Tbe Arkansas Lawyer. These omissions resulted from a communications error bet\veen the Supreme Court Committee on Professional Conduct and this office.

MR. NOLEN MICHAEL YARBROUGH VAN BUREN, AR A lencr of camion was issued 10 Mr. Nolcll Michael Yarbrough for Ihe violalion of Arkansas Model Rules of Professional Conduct 1.3, 1.16(d) and 8A(d) upon Ihe complaim of Donald C. Donner. The lener was flied March 5. 1997. These Rules stale, in p:lfl, thai a lawyer shall act wilh reasonable diligence and prompmw in rep-rtselHing :l. client; upon lermin:l.fion of reprtsenf:l.tion, an :l.Horncy shall lake Sleps ro the cxlem reasonably practicable 10 prOleCI the client's interestS, such as giving reasonable nOlice to Ihe client, allowing lime for employmem ofother counsel. surrendering papers and property to which the diem is emilled and refunding any advanced paymenl of fcc thaI has nOl been earned; and, a lawyer shall nOI engage in conduct lila! is prejudicial 10 Ihe adminislration of juslice.

Mr. Donner represenred Genene Ray. a formerclienl of Yarbrough's. in a malpraclice against Y:Hbrough. The malpr;lCIice aClion involved his representation of Ms. Ray. An Answer and Coulllerciaim was filed on her behalf.

Yarbrough did so as an associale of Ihe McKinnon Law Firm. Following the notice of lrial being scm, Yarbrough filed a Motion 10 Withdraw as anorncy of record. The trial was held withoul Yarbrough's mOlion being heard and wilhout anyone appearing on Ms. Ray's behalf. Judgment was elw:rcd againsl Ms. Ray. Yarbrough provided nOlle of this informal ion to Ms. Ray. During the malpraclice action, an :l.1lS\Ver was filed on Yarbrough's behalf, wherein it was admilled thai Yarbrough agreed to represelll Ms.

IIiSl'ipIiDill} .\('tillns

Ray. Yarbrough settled Ihe malpractice action. Following scnlemcm, Yarbrough sent Mr. Donner a very caustic piece of corresl>ondence.

Yarbrough's response begins by seuing OUI thai this is th~ Ihird lime lhat he has been required 10 respond to lhese alleg:uions. Yubrough also eJlpresscd his bc.lief Ihat Mr. Donncr is obsessed wilh this situation. Yarbrough "cknowledged lhal Genene Ray discussed her legal maner with him while he was employed at me McKinnon Law Firm.

According 10 Yarbrough. Ms. Ray never paid any rerainer fee. Further, Yarbrough denied filing Ihe Answer "nd Counterclaim for Ms. Ray in Municipal Court. Yarbrough did acknowledge filing the Motion to Withdraw. Also, Yarbrough adrniued lim it was poorly drafted. He averred that when Ms. Ray initially colllacled him, he used his legal knowledge to advisc her that she had no defensc 10 lhe municipal coun maner.

MR. ORVIN FOSTER MENA,AR A leHer of caution was issued 10 Mr. Orvin Foster for the violation of Arkansas Model Rule of Professional Conduct 1.7{a) Ul>on the complain! of Mr. Davi<1 Lewis Clark. The leiter was filed March 5, 1997. This Rule Slates, in part, Ihal a lawyer shall not represent" c1ienl if the reprcsem"Jlion of mat c1ienl will be direclly adverse 10 anOlher client, unless: (I) me lawyer reasonably believes the represelllation will not ad\'erscly "ffeci the relalionship with the Olher c1iem; and (2) each c1iem conscntS afler consultation.

011 May 31. 1995, a Pelilion for Registralion of Foreign Judgmel1l and Request for Emergency Relief was filed on behalf of Mr. and Mrs. Jock Joseph Smith in Polk County Probale Courl. On June 13, 1995, FOSler filed a response on behalf of lhe defendants, Mr. and Mrs. Gary Howard. On June 26, 1995. a hearing was held wherein FOSler represc:med bOlh Mr. and Mrs. Howard. The Trial CAun elllcred an order which was lhc.n appealled to lhe Arkansas Court of Appeals. FOSler remained Ihe Anorncy of record for Ihe Howards on appeal.

On OClober 16, 1995, FOSler filed in the Polk County Chancery Coun a Complaint for Divorce on behalf of Gloria Howard against Gary Howard. A hearing was scheduled for January 23, 1996. FOSler """as asked on two occasions to withdraw as anorney of record in both Ihe probale and chancery cases due to the appearance of a conflicl. On January 29, 1996, the Polk Coullly Chancery/Probate Judge enlered an Order disqualifying FOSler from representing any of Ihe panics.

On March 7.1996. the appeal oflhe Probate Coun dccision was dismissed.

For foSler's response, he admilled Ihal he was retained in June 1995, 10 represc:nl Gloria and Gary Howard in Ihe attempt 10 register a foreign judgmem. In October 1995.

FOSler Staled that Gloria Howard contacred his office and requesled Ihal he file a divorce action against her husband.

Gary. Gloria Howard soughl custody of the panics' minor child. FOSler asseTled lhat he did nOI perceive any conflict of infereSI. On Janu:lT)' 26, FOSler stated Ihal he received by facsimile lransmission a MOlion to Disqualify, and that on January 29 he received a lener requcsting he wilhdraw from represenration. Foster staled Ihat he made no effoT! 10 contcst the MOl ion as he perceived rhal under the circumsrances that he could not continue to represem Gloria Howard any funher.

MR. ORVIN FOSTE.R MENA,AR A lencr of r~pril1land was issued to Mr. Orvin FOSler for the violation of Arkansas Model Rules of Professional Conduci 4.I(a), 4.2, 4.4, 8.4(c) and 8.4(d) upon the com* plaint of Katy Victoria Smilh. The leller was filed March

5, 1997. These Rules Stale, in pan. that in lhe coursc of representing a dient a lawyer shall not knowingly make a false statement of malerial r.'Ct or law to a third person; in reprcscming a diem, a lawyer shall not communicale abom Ihe subjecl of lhe represelHdtion with a party the lawyer knows 10 be reprcscllled by anomer lawyer in Ihe maller, unless Ihe lawyer has the COllscnr of the OIher law)'er or is aUlhorized by law 10 do so; in represc:nting a cliem, a lawyer shall nOI usc mC;l.ns Ihat have no substamial purpose other than to embarrass, delay, or burden a Ihird person. or usc methods of obtaining evidence that violate the legal rights of such a person: a lawyer shall nOI engage in conduct involving dishonesty, fraud. deceit or misrepresc:nration; and. a lawyer shall nOI engage in conduct Ihat is prej* udicial to the administration of justice.

Mrs. Smith was raken into custody and had her grandson raken from her in Polk County, Arkansas. while she was visiting her mother. According to Mrs. Smirh. Foster was prCSC'm while Mrs. Smilh was being held at Ihe Sheriff's office. Whcn Mrs. Smith was being esconed imo Ihe Sheriff's office, FOSler advised her thaI there was a Court Order 10 remO\'e h~r grandson from h~r, bUl he refused to show il to Mrs. Smith. Mrs. Smith laler learned [here was no such order. While she was at Ihe Sheriff's office, FOSler Heared Mrs. Smith in a very threalening manner. Laler, FOSler also wId Mrs. Smilh's Oklahoma counsel Ihat there was an Arkansas Coun Order which required Mrs. Smith 10 relinquish custody of her grandson. FOSler lold her this C\'en lhough Ihere was no custody proceeding pending al the time Mrs. Srnilh's grandson was removed from her. However, Fost~r admined 10 the Judge in :I hearing held on June 14, 1995, wherein he rcprescrued i\'lrs.

Smith's son and daughler-in-Iaw, thai there was no Order when Mrs. Smith was raken inro custody.

Foster began his response by providing cenain infor* mation about lhe binh of Mrs. Smith's grandson.

According 10 Foster, it W;lS the law enforcement personnel who summoned him about rhe situalion on April 25.

1995, after Mrs. Smith was taken inro custody. FOSler asserted that he did not have knowledge of Ihe Okbhoma court proceedings al that lime nor did he reprCSC'1l1 the child's binh parents at Ihat lime. Additionally. according 10 him, he was only anempling 10 assiSi law enforcemelll officials when he spoke with the female atlorncy from Oklahom:l. Funher, FOSler denied telling her Ihat lhere was an Order of custody in effect in Arkansas at the lime.

Foster did recall being asked about one and saying he would check. FOSler ;'lvured lhat he did nOl inrelllionally mislead anyone. In closing, he specifically denied violalillg any of the Model Rules as alleged.

MR. JOHN RILEY HENRY ARKANSAS BAR 10 ;67023 PER CURJA,.\1 On recommelldalion of the Supreme Coun Commiuc.e on Professional Conduct, we hereby accepl lhe surrender of the license ofJohn Riley Henry, of Harrisburg, PoinseH County, ArkanS,lS, 10 praClice law in the Stale of Arkansas, and direct Ihal Mr. Henry's nallle be removed from the lisl of altorneys authorized ro practice law in this srate. Daled: April 14, 1997

MR. MARK W. MCBETH GRAVETTE, AR A lem:r of suspension was issued to Mr. Mark W. McBeth for the violalion of Arkansas Modd Rules of Professional Conduct 1.1, 1.3. 1.4(a) and 8.4{d) upon lhe complailll of I~ Kelly W;ll1ace. This letler was filed April4.

1997. These Rules Slate, ill parl. that a lawyer shall pro\'ide compclelll represemarioll 10 a diem; a lawyer sh,,11 :lCI wilh reasonable diligence and promplness in reprcscming a

lol.ll.lo. I/f'a1l199S

Thr

Ir~aOSall,o\l!rr

19

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~ Arkansas Bar ~ Association

ta\\}(I!, dknt; a 1:.1\\')'cl' s.hall kttp :.II c1ienl ~asonablr informed the SUIUS of a malfer 2nd promptly comply with rea-

:looU[

sonable r«!ucsu for information: and. a lawyer shall nO[ engage in conduct that is prcjudici:al to ,he adminismltion of justice.

Mr. & Mrs. Wall:l.cc's affidavit :lnd their testimony :u ,ht' h~ring indicated ,hat they went 10 McBeth's oRice on or 200UI March S. 1996. with copies of;ill laW5uil which

had b«n served on them and he agr«d 10 rC'p~nt them.

McBeth filed an Answer on their Ix-h.alf March 19. 1996.:.11 copy ofwhK:h Mrs. \X'.t.Ilxc picknt up from his offtce:.ll f~ da}'S 121er. According 10 ,he \'(I.t.Ibccs', they nat heard from

ltisl'iplillill} \,,{ions

ten fashion constiluted a violation of Modd RuIC' 1.3.

That his failurC' to advisc his diems of the IKndt'ncy of thC' R.coqUeslS for Admission; his failurt to advise his c1it'nts of the IKndt'ncy of the Motion for Summary judgmC'lll: and his failurC' to advise: his diC'1l1S of thC' emry of MOlion for Summ:ary judgmt'nt constituled a violation of Model Rult' lA{a).

TIut his conduct colkcti\'dy and as particularized abo\'e. was prejudicial to mC' adminiSlration of jwrice in violation of Model Rule BA(d).

McBeth on or about May 23, 1996. when hc call«t Mrs. W"llacc at her job and fOld her rh:n he had JUSt rnci with the judge and pbimilf's anomt)'. It YOU his advict' 10 them

MS. KAREN KING JOHNSON

that rhty conr;lct the plaimiff as soon as possible and try to scule the l:awsuil. Mrs. Wallace tcstiflc:d to her frustration at hearing thai suggestion since it was because of their inability 10 work OUt a solution that Ihc:y hirc:d Mclkth.

Apparendy. what Mclkth faile'd to tdl Mrs. W;tllace was that me' "meeting" was aCfU;tlly a hearing on a MOlion for Summary judgment :and the motion was gr.tnted. The nat day. Mr. Waltace. a deputy sheriff. ~'2J: se:n.-ed on the job with the Summary Judgment which thc:y immediardy paid. HowC\·er. il wa.sn·t until rhc:y read the Summ:ary judgment that they discO\·C'ted m:at Mclkth failed to respond to RcquC'Su for Admissions. In f.act. :aIlC't obt:a1ning:a copy of thC' dockel shee:t. thc:y :also lC'arned ofhi.s f.J,i1ure to rcspond 10 Ihe MOl ion for Summary Judgment. The Wall:aces Icstifled that the m~gcs thc:y Idt for Mclkrh at 1C'lSt once ("\IC'ry fWO wC'des were n("\ler returned.

According 10 the Wallaces, his failure to communic:ate and failure to diligently :atrC'nd 10 thC'ir legal m:al'tC'r caused them 10 suffer :addition:al monC'llIry losses including COUrt cosa :l.IId attornc:y fccs not 10 mendon h:aving losl thdr vehicle :and the right to defend Ihem.sdvcs.

Mclkth Icslified mal he:l.Ild his SC'CTetary made:a numIxr of auemplS to conlacl the Wallaecs but wC're unablC' to spnk with either pany. Mr.s. W:alI:ICC' worked days :at thC' local hospital and Mr. W.1I1:aCe' worked night shifts. Mclkth anributed the difficulty in communication to thC' work and the slttping p.llttC'rns of his diC'nlS. Contrary to rhe Wall:accs' testimony. Mclklh asscrred Ihar messagcs were lC'ft rcoqucsting Ihe W.1l1acC's 10 COnt:aCI him. Ahhough the cliems dcniC'd rC'cdving it and he had no record of its return 10 his office. he prcRnrc:d a copy of a lener dated April 5.

1996, which hC' st.ned was SCnt to The Wallaccs notifying them of IhC' IKndency of the Rt:qucslS For Admi.ssions.

Mclkm later dise:o\'ered IhC' lC'ltds mailing addrcss was incorrect in thai il omined me fim digit of thC' W:allaccs' POST Office Box numlxr. Hcweo,·er. McBem did not.s«k:an alC'nsion of timC' in which ro aJUwC'r thC' Requests.. He' aplained that decision by suring Th:ar he did. nor think :an atC'nsion would do any good in vicow of his inability ro conuct his dienu. Wilhoul any concrete aplanation by him, McBeTh failed to respond 10 Ihe Motion for Summary Judgmt'nt and, furthC'r, admiued thai he did nOI argue a{?insl C'ntry of Summary judgmC'nt :at the hearing. As thC' Wallace'S atcorJIC'Y of record, McBeth failC'd 10 objcct to opposing counscl's stated illtC'nt to scrve his cliC'nts wilh the Summ:ary Judgmelll rath('r Ih.m dirccl il to McBeth. their counsel.

Following the Commintt's dclilxrations :and the pronounCC'fllC'1ll of its decision. mC' Chairm:l.Il :l.IIoounced mc following Findings of f.Kt: Thar McBerh's failurC' co respond to Rcoquen for Admissions ofFao: or requesT:an alension of rime-; his failurt to respond to MOlion for Summary judgmC'nt and Brid' in Suppon: hi.s f.J,ilurt 10 arguC' the Motion and Britt and, his f.l.ilur(' to objC'et 10 servicC' of thC' judgmelll on his c1ienlS all cOlmitutt'S:a violation of /I.·lodd Rul(' 1.1.

That his f.J,ilure to Tt'Spond to Request for Admi.ssions; his 10Tal f.J,ilufe 10 rcoquC5t :an extension and his fililure 10 respond ro tht' MOlion for Summary judgmt'nt in any writ-

PERCURJAM

UTILE ROCK, AR

On rt'conullC'ndarion of the Suprenlt' COUrt Commi([C'e on Professional Conduct, we hertby acct'pt the surrender of the license of Karen King Johnson. of LitllC' Rock. Puluki County. Arkansas. ro praclicC' law in thC' Statt' of Arkansas. and dirccT that Ms. johnson's n:ame be removed from rhe lisr of :artornt'}'S authorized to practi« law in mis SlarC'. D;lted: June 9. 1997

MR. PAUL DICKERSON ARKANSAS BAR ID 186051

PERCURJAM On rt'commendation of thC' SuprC'me Court Commiuee on Professional Conducr, we hereby accC'pr the su rrendt'r of the license of Paul Dickerson, a resident of the Srare ofTaas. to practice l:aw in Ihe SI<lte of Arkansas and dirm mat Mr. DickC'non's name Ix remO\'ed from the lisl of :artorncys authorized 10 practicC' I;lw in this statt'.

Datc:d: October 2. 1997

MR. REGINALD HELTON MCCUUO GH UTILE ROCK, AR A lC'tler of rcprim:and was i.ssued 10 Mr. Rcogin:ald Shelton McCullough for The violation of Modd Rules 1.1, 1.3, 3.4(c) and BA(d) upon tht' Per Curiam Complaint of Reginald Dunahue. AplKll<lnl. This Iwer wu flied Dcct'mber 4. 1997. These Rules state, in pari, thar alawycr sh:all provide competent fepresemarion 10 :a client, CompeTt'nt reprcscnution requires the legal knowledge, sbn, thoroughness and prC'p:aration reasonably ncccs.wy fOr mC' rtprt'$t'm:ation: :a laW)~r sh:all act: wilh tC'asOn:able diligence and promplness in reprc:scnting:a diem; :alawycr sh:all nOI knowingly disobey :an obligation under rht' rules of:a uibun:al CXCC'»I for:an 0lKn rdUsal basN on :l.II usertion thar no \';IIK! obligarion aislS: and. a laW)~r shall not t'ng:agt' in conduct rhat is prejudicial to tht' administration ofjwtice.

The Arkansas Courl of AplKals rt'ft'lred thi.s maner to tht' Proft'uional Conduct Commillee as :a result of McCullough's conduct as set out bdow. Following his cliem's conviction. he timely filed a nOticC' of appeal.

Recognizing his inability to timdy file the brief he rcoqUC!Ied :l.IId was gr:anrcd an atC'nsion of timC' to June 8. 1996. wilhin which 10 do so. Subsequently. rhe Clerk of Ihe Court inquired by kncr d:ued July 9 about his continued failure to fik the brief. Anomcr monm p:l.S5oed and hC' had still nor filed thC' bric-f. ThC' Clerk again mailed him a letter asking him to respond within 5C'Ven (7) days. On NO\1:mlxr 6. 1996. the Attorney General filed :a Motion TO Dismi.ss the Appeal. ThC' motion was dt'nied. but he was ordC'red to filC' the brit'f by Dcct'mber 10 or a Show Cause Order would be enle'red. In f:acT, on Dt'cember 23, :a Show Causc Ordt'r i.ssued and a hearing was SCI. The Show Cause hearing was held on January 22. 1997. McCullough appeared and :l.dmitted his failure to comply with tht' dirC'C-

ti\'es of rhC' CoUrt. He told me court of somC' non-specific pc.rsonal problems :and addcd mat he had had problC'ms with hi.s office compurC't s}'srC'm. HC' did howC\'C'r rC'ndC'r rhC' brief on behalf of his dielll.

Although J\'lcCullough failed 10 submiT a rcsponsc to the compl:a11ll after being dul}' SC'rvt'd. hC' timely rC'quesrc-d a tb nOIJ(J hC':l.Iing pursu:anr to Scct.ion 5E(3), Procedures of thC' Arkansas Suprt'mC' Courr Rt'gulating Professional ConduCt of Auorneys :l.l Uw. Ar Ihe horing McCullough testified and prc:scnted evidencC' of Ihe many problems h(' had had with the post office. Initi:ally beaux of Ihe size of his post offiCe' box. he signed thC' green cards which were detached from IhC'ir ell\'dopes :l.IId lruned thC' postal emplO)'CCS TO gi\'e him mC' mail to which thc:y ~~rC' prC\'iowly auached. Ht' rC'Slified 10 IhC' \'olumcs of mail he rccC'i\'cd and naled Ih:at he' once had sC\'en (7) of tht' plastic postal bins behind Ihe counter to pick up. Additionally. ht' pl'CSC'nted ("\Iidellce of having failed ro rC'cC'i\'t' mail in a timdy fashion beau.sc: of incorrC'Cr :addrc.sscs on The t'n\·elope. Finally. ht' pJ'C'SC'ntcd evidC'nct of having rccC'ipred other allorncys' mail. Once he becamC' aware of the aTen! of Ihe problem in approxim.ltdy june of 1997 he got a IargC'r box.

Wilh regard 10 his f.J,ilure 10 respond to this complaint. he stated thaT he did nOT intenTionally ignore the Committee:. rather he did not recei\'e thC' complaint. His testimony was that hC' failed to respond to thC' complailll before tht' Commince bcc:aUSC', although ht' signc-d the green card indicating his rcct'ipt of the complaint. he did not rccC'i\·C' thC' C.nvel01K and ilS COlllenrs. HC' presented tesrimony about the \'olumC' of uses rhar hC' managC'd adding rhat hC' had acquired a lap-lOp COlllputC'r 10 ('nhance both his time managemenT as wdl as his calendaring/Tickler system. Further remedial action taun included changes within thC' offiCe' to ensure propc.r and timdy case managcmC'nt.

In put actions and during rhC' course: of thC' instant disciplinary action. difficulties were encounlC'red reg:arding his rt'CC'ipr of Committee: mail Kill ro him. By way ofexplanaTion of his non-rcccipt :and lhe murn of somC' correspondC'nCt' ditC'C1ed 10 him. hC' relaled problems thou hC' had wim rhC' post officC' and arrribured the bulk of the problems 10 an undC'f$ized post offict' box which disrupTed mC' poslal employccs' normal handling of mail. He Slated Thol.[ he h:ad obl1linc-d a new and l:argC'r pon office box which should alleviate the pasl problems. Ho.....ever, Ihe Commiuee aprcsscd ilS eonet'rn about his non-rC'Ct'ipt of ct'rtain correspondence beca.use: somC' cC'niflC'd, rcstricted deli\'C'ry mail selll from the Committee: to his ncow poST office addrcss had been returned "Unclaimed: In continuation of the mail difficulties bctwun him and the Commiuee: hC' prcscllled a copy of:a le1[c.r ro IhC' officC' of thC' ExC'Cuti\'C' DirC'Ctor dared NO\'C'mlxr 3.1997. bur which had nor been rccei\·ed by rh:at office as of NO\'embc-t 15. 1997.

MS. HEATHER PATRICE HOGROBROOKS FORREST CITY, AR A leiter of reprimand wu issued ro Ms, Heatht'r Patrice Hogrobroolcs for Ihe violalion of Arlunsas Modd Rulcs of Profcs.sion:al Conduci 1.1 :l.IId 8A(d) ba.scd upon the Complaint Before Ihe Commillee. This lel1er was filed DecC'mbcr 4, 1997. ThC' Committee found that Hogobrooks failed to properly :abstl':l.Cl the rC'Cord in Albn It !?4uum. n al.• No. CA96-692. in accordance wilh the appdl<lte rules. and thar the Arlunsas Courr of Appe:als affirmed me tri:al court judgmC'nT from which her c1iC'1ll :appe:aled beausc of hC'r noncomplianct' with Suprtme Court Rule 4-2{:a)(G). These Rules Slate that a laW)'C'r shall provide' comlKrC'nr rC'prcscnt:arion 10 a c1ienl. ComlKtent rC'prc:scnration requires the legal knowledge. skill, thoroughnC'SS and prt'pararion reasonably nC'CCSsary for the reprcscnTalionj :and. a lawyC'r shall nor C'ngage in conduct Ihat is prejudici:alto the administration of JUSTice.

hUlJ•. I Fill IllS

il

tim}I'I' The Arkanw COUrt of Appeals referred this matter to the Professional Conduct Cornmincc for Hogrobrooks' persislC~nt failure to comply with the: abstracting requiremems. The Per Curiam opinion cited three (3) orner of her casts in which the judgments from which she appealed wc~ affirmed Ixcau~ of deficient abSll'llClS. At oral argument before: the Court Hogrobrooks set forth her bdief that Ihe: abstracting rcquircmcm is an unfair imposition on poor liliVnts and is unnecessary for resolution of the sub$Iantl\'c issues. The court responded to her argument by characterizing it as Qbasdess" and as "demonslr:ning a blatant disregard for the purpose served by ,he abstracting requirement."

For her response Hogrobrooks stated lbat in each of these decisions, the abstract and record were more than sufficiem to permit a decision by the appellau: court. She also averred that the abstracting rule is ~vague and ambiguous."

She StlUed that she did not remember a bar exam question relating 10 abstracting and the COUrt, in violation of the ~principle of nOlice,~ has punished her c1iems by denying them review of their cases. &veral witnesses ll~Slified on her bthalf at the hearing. Anorney Alvin Simes testified that Hogrobrooks is an aggressive and unyielding anorney.

Anorney Tom Young averrffi that she is very capable. Judge ally Neal of the Arkansas Court of Appeals testified to his familiarity with the abstracting requirements and that abstracting is a very large problem. He averred that the word choice used to characterize the quality of the abstract e.g. ~deficiem, flagrantly deficient, sometimes depends on who authored the opinion adding that he docs not make referrals to the Professional Conduct Commincc. Judge Neal did acknowledge that the ultimate responsibility to abSlract is the anorney's. Finally, without reference 10 any specific reason Judge Neal testified that he tecuses for all of her appeals. Hogrobrooks testified at the hearing that she went to law school in Texas and a course on abstracting was nor offered. Further, she averred that since the abstracting rules arc not "crystal clear" she obtained a sample from the clerk which she has followed. Hogrobrooks stated that it is illogical that she would intentionally jeopardize her clients' cases. In conclusion she offerffi her assurance that it won't happen again.

MR. REGINALD SHELTON MCCULLOUGH LriTLE ROCK, AR A letter of reprimand was issued to Mr. Reginald Shelron McCullough for Ihe violation of Model Rules 1.1, 1.3, 3.4(c) and 8.4(d) based upon the Per Curiam Complaint of Merike Manley, Appdl:mL This letter was filed Decembc:r 4, 1997. These Rules state, in part, that a lawyer shall provide competem represemation to a cliem.

Competem representation requires the legal knowledge, skill, rhoroughness and preparation reasonably necessary for the represcmation; a lawyer shall act with reasonable diligence and prompmess in represeming a c1ienr; a lawyer shall nOl knowingly disobc:y an obligation under the rules of a tribunal except for an open refusal based on an assertion that no V2lid obligation exists; and, a lawyer shaH not engage in conduct that is prejudicial to the administr:uion of justice.

The Arkansas Court of Appeals referred this matter to the Professional Conduct Committee as a result of McCullough's conduct as set out bc:low. On behalf of his client he filed on August 20, 19%, a Motion To Continue and extend the brief lime to Septembc:r 30, 1996.

Apparently, the brief was never filed because on November 6, 1996, the Artorney General filed a Motion To Dismiss the appeal on behalf of the State. On November 27, 1996, by way of Per Curiam Opinion McCullough was ordered to file the brief by December 16, 1996, lest a Show Cause order issue direcring him to explain his failure to follow the directions of the CoUrt. In faCt, on December 23, a Show Cause Order issued and a he;lring was set. The Show Cause

The ,Irkmas La\\rer

1'01. llilo. ·l/fall 1995

UisfipliRill} .\l't ions

hearing was held on January 22, 1997. McCullough appeared and admitted his failure to comply with the directives of the Court. He told the court of some non-specific personal problems adding that he had had problems with his office computer systcm. He did however tender the brief on behalf of his client.

Although he failed to submit a response ro the com· plaint aner being duly served, he timely requested a tk novo hearing pursuant to Section 5E(3), Procedures of the Arkansas Supreme Court Regulating Professional Conduct of Anorneys at Law. AI the hearing McCullough testified and presented evidence of the many problems he has had with the POSt office. lnirially because of the size of his POSt office box, he signed the gr«n c;lrds which were detached from their envelopes and truSted the postal employees to give him the ma.illO which they were previously attached. He testified to Ihe volume of mail he received staring that he once had .seven (7) of the plastic postal bins behind the counter to pic.k up. Additionally. he presenred evidence of having failed to receive mail in a timely fashion because of incor· rca a.ddresses on Ihe e;nvelo~. Finally. he presented evi· dence of having receipre;d other a.lIorneys· mail. Once he became aware of the extent of the problem in June of 1997 he gOt a large;r box.

With regard to his failure to respond to this complaint, he stated that he did not intentionally ignore the Committee, rather he did nOI receive the complaint. His testimony was that he failed to respond to the complaint btfore the Committcc because, although he signed the gr«n card indicaling his receipt of the complainr. he did not receive the: envdo~ and its comenrs. He presented testimony about the volume of ca.ses that he manages adding tha.t he has acquired a lap-top computer to enhance his time managemelll as wdl as his calendaring/tickler system.

Further remedial action taken included changes within the office to ensure proper and timely case management.

MS. HEATHER PRJCE HOGROBROOKS FORREST CITY, AR A letter of reprimand was issued 10 Ms. Heather Price Hogrobrooks for the violalion of Arkansas Model Rules of Professional Conduct 1.1, 1.3,3.2. 3.4(c) and 8.4(d) based upon the Complaint Before the Committee. The Iwer was filed Decembtr 4. 1997.

Following a show cause hearing before the Arkansas Supreme CoUrt on Seprembtr 23, 1996, the Court found Hogrobrooks in conre;mpt for her failure ro attend scheduled oral argumelll before the Coun and imposed a fine of $500. Because of the pattern of conduct exhibited by her at the appellate level and in the underlying trial COUrt pro-ceeding, the Supreme Court referred the matter to the Committcc. Sec Per Curiam issued September 30, 1996, and FJormrr. rt III ~ lityior, 326 Ark 177 (1996).

Hogrobrooks was trial counsd for FJo,.,nu rt Ill. II. "TaJ/lor, plaintiffs/appellants in a civil matter in Lee Counry, Arkansas. The first trial date of this case was continued by the judge on his own motion as a result of her absence. The .second trial selling was continued on her motion. A third trial dale was sel. The day bc:fore trial Hogrobrooks filed a Motion for Continuance. Apparently, she was advised Ihat opposing counsel objected to the continuance and, therefore. Ihe motion would nor be granted without both parties before the coun. The judge further advised that a con· ference call would suffice. However, a conference call did not rake place. The following day opposing counsel appeared with his client a.nd ;I venire pand was present.

Neither Hogrobrooks nor her clientS appeared. Upon proper motion the case was dismissed with prejudice. She appealed the dismissal 10 rhe Arkansas Sup~me Court. At her request oral argument was scheduled. However, she failed to appear before the Coun for oral argument. At her

show cause hearing she ellle;red a guilry plea to rhe contempt charge and was ordered 10 pay a $500 fine.

Hogrobrooks' Response to the Complaint srated her position that without established standards for the bases of rhe disciplinary allegations she was unable 10 respond and/or defend her actions. However, she responded to the allegation that she disobeyed an obligation of a tribunal by averring that she ~had no obligation by the Supreme Coun or any legislative enactment to attend oral argument on behalf of a client. That the obligation which she F.liled 10 adhere to was one that she made of [her} own accord."

Several witnesses testified at her hearing on her behalf.

Attorney Alvin Simes testified ro his opinion rhat she is an "aggressive, effective, unyielding and thought out~ attorney. He provided testimony regarding the practical considerations oflaw practice in the First Judicial District and the conflicts arising from having cases set in different counties on the same day. He te~$lified that a number of trials may be scheduled for any given day in both Lee and St. Francis coumy. Mr. Simes recognized the necessity of obtaining a ruling on any motion for conrinuance and cl1at a I3wyer cannot assumc rhe mOlion will be granted. ArtOrney Tom Young also testified Ihal she is a "very capable" anorney in his opinion. Judge ally Neal of thc Arkansas COUrt of Appeals lestified on her behalf. Hc testified that he first made her acquaintance in 1992 and that he gave her her first job in Arkansas as an attorney when he hired her as a deputy prosecutor. He testified that he;r "writing was ade· quare at thai time~ and when asked whether he had an opinion about her competency he restified. "she is." Judge Neal also testified that her failure to a[[end oral argument caused him concerns. During her testimony she offered some explanations for her actions. With respect to her having failed to get opposing counsel before the court in order to obtain a ruling on her motion for a continuance, Hogrobrooks testified that when she called opposing coun· sel had left for the day and "that was the end of it." She added that she had another obligarion in SI. Francis County so she wen! there instead. Later that morning when she learned of the dismissal with prejudice she consulted "thc rules" and filed an ap~al. However, Hogrobrooks admitted that she had no direct authorization excusing her from trial in Lce County. With regard ro her failure to attend the oral argument before the Supreme Court she offered an explanation involving her decision 10 attend a trial lawyers' course of study in Wyoming. She drove 10 Wyoming and began the approximately monrh long course. She had requcsted continuances on behalf of her clients in pending matters because she believed Ihat "being elsewhere would bt more beneficial to her pool of c1ients.~ She finally admitted, however, that she was in fact back in Arbn$2S on the date on which oral argument was set, having decided not to complete the course in Wyoming. As to why, then, she was nOt before the Supreme Court for oral argument as scheduled she explained that, having filed a brief on bc:half of her civil appdlant (whose case had been dismissed with prejudice at the trial level for her failure ro appear even though she believed their case had merit) she believed that she had fulfilled her legal obligation to that client. Hence her Statement, "I guess they'll affirm this one without me. n Therefore, she believed her duty was to be with clients 10 whom her legal obligations were nOt yet complered.

The Committcc made the following specific findings about Hogrobrooks' conduct in this matter; Her F.lilure to obtain a ruling on her Motion for Cominuance and her failure 10 appear for oral argument or otherwise be excused constitutes a violation of Model Rulcs 1.1 and 1.3 which state a lawyer shall provide competent representation to a client. Competent represenTation requires the legal knowledge, skill, thoroughness 3nd prepararion reasonably necessary for the representation.

Model Rule 1.3 states that a lawyer shall act with reason· able diligence and promplness in representing a client.

tim}l'I' Her allowing her clients' case (0 be dismis~d Wilh prejudice is a violation of Model Rule 3.2 which SUits a lawyer shall nuke reasonable effons 10 expedite litigation consislent with the interests of the client.

Her fJilurc to appear for oral argumenl before the Arkansas Supremc Coun is vio1:nivc of Modd Rule 3.4(c) which sr:lICS a lawyer shall not knowingly disobey an ohlig:lIion under theo rules of a tribunal except for an open refusal based on an a5Sconion lhal no V3lid obligation existS. The cumulative effect on her clientS

;1;5

a result of tht'

fJclors enumerated above constitutes a violation of Model Rule 8.4(d).

Further, it was the decision of a majority of the Commiutt lila{ she be, and she is hereby. reprimanded for

this con<luct. The Committee shall advise the Coun in writing of the specific disciplinary aClion taken.

MR. ALBERT WAYNE DAVIS L1n-LE ROCK, AR

IIisl'ipliDill} .ld ions

lion. A notice- of appeal was filed, bUI the record was tendered I:ue due to a mistake on Davis's parr. He admitted error in his motion, the motion was granted and a copy of the opinion was selll to the Professional Conduct Comminee.

Davis appeared before- the Commiuee and admiued violating the Model Rules as alleged. He testified thai his initial f.l.ilure to respond 10 Ihe Commiuee should nOI be viewed as :11I\ affront to Ihe Commiuee- because his MOlion for Rule- on Ihe Clerk in Mr. Hale's appeal admitted the record was tendered laiC due to a mistake on his part. He averred that his response to the Committee would have contained no additional information.

During the hearing, he was questioned about his failure to respond and whcther such failure demonslrated a pattern. He denied that his conduc' constiruted a paltern despite his history of f.l.iling to respond and artend before OOlh the Comminee and me CoUrt. The only assurance the Commiuee \\W provided thaI such failures would nOI recur was Ihat he ~should be able to bro" from this very embarrassing" situation of having to personally appear before Ihe Committee. He did ultimatdy accept responsibiliry for te-ndering the record late, apologized to the- Committee, and asked thaI any sanction be reasonable, rational, f:,ir and not excessive.

M

A letter of suspension was issued to Mr. Allxrt Wayne Davis for the violalion of Arkansas Modd Rules of Professional Conduct 1.3 and 8.4(d) based on the Per Curiam Complaint of Sherry Marie Hale forwarded to the Committct by the Supreme Court of Arkansas. The lener was filed January 20, 1998. These Rules state Ihat a lawyer shall act with rusonable diligence and promprneu in reprcscming a dient; and, a lawyer shaH not engage in conduCI that is prejudicial to the administration of justice.

The faclS herein arise out of a rer Curiam opinion granting a Motion For Rule On The Clerk. Davis's dient, Sherry Marie Hale, desired to appeal her criminal convicdon. A notio: of appeal was filed, but the record was len¡ dered late due to a mistake on Davis's parr. He- admitted error in his motion, the motion was granted and a copy of the opinion was sent to the Professional ConduCl Committee.

He appeared before the Committee and admitted violating the Model Rules as alleged. He testified that his initial fdilure 10 respond 10 the Committee should nOI be viewed as an affront to me Comminee because his Motion for Rule on Ihe Clerk in Mrs. Hale's appeal admiucd me record was tende-red late due 10 a misrake on his parr. Davis averred thaI his response to the Committee would have contained no additional information.

During the hearing, Davis was (luC5tioned about his failure to respond and whether such failure demonsuatcd a pattern. Davis denied that his conduct constituted a pattern despite his hislOry of failing to respond and attend before bolh the Comminee and the Courl. The only assurance the Committee- was provided th:1I such failures would not recur was that Davis ~should be able to learn~ from Ihis ~very embarrassing~ simalion of having to personally appear before [he Comminee. He did ultimately accept responsibility for tendering the- record la\(, apologizW to the Comrninee, and asked that any sanction be reasonable, f'dtiona], fAir and not excessive-.

MR. ALBERT WAYNE DAVIS LITTLE ROCK, AR A lcttcr of suspension was issued 10 Mr. Albert \Vayne Davis for Ihe violation of Arkansas Model Rules of Professional Conduct 1.3 and 8.4(d) based upon the Per Curiam Complaint of Kevin Wayne Hale forwarded to Ihe Committee by the Supreme- Courr of Arkansas. The leuer was filed January 20. 1998. These Rule-s state thai a lawyer shall act with reasonable dilige-nce and promptness in representing:l diem; and, a Iawycr shall not engage in conduct that is prejudicial to the administration of juslice-.

The- faCtS herein arise OUt of a Per Curiam opinion granring a Motion For Rule On The Clerk. D<t\'is5 dient.

Kevin Wayne Hale, desired to appeal his criminal convic-

MR. LARRY E. KUCA ARKANSAS BAR 10 #80081 PER CURIAM On recommend.uion of Ihe Supreme Courr Committee on ProfCS5ional Conduct, we hereby accept the surre-nder of the license of Larry E. Kuca, of Little Rock, Arkansas to practice law in Ihe Sr-dte of Arkansas. Mr. Kuca's name shall be removed from the registry of licensed attorneys and he is permanently barred from engaging in the unlicensed practice- of law in this srate.

Dated: March 5, 1998

MS. HEATHER PATRICE HOCROBROOKS WEST MEMPHIS, AR A lener of suspension was issued to Ms. He-alher Patrice Hogrobrooks for the violation of Model Rules 1.1, 3.4(c) and 8ACd) based upon the refe-rral from the Arkansas Court of APPC;lls in the criminal appeal of her client,

Carlos Dee-re. The lenet was filed May 11, 1998. The-se Rules Slate, in pari. a lawyer shall provide competent re,,rese-mation 10 a cliellt. Competenl repre-sentation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation; a lawyer sllall nOI knowingly disobey an obligation under the rules of a uibunal excepl for an open refusal based. on an assenion mat no valid obligation exiSts; and, a law),er sh:lll nOI engage- in conduct ,hat is pre-judicial to the administration of justice-.

The- Court of App~als referred this matter to the Comminee on Professional Conduct because of a flagrantly deficient abstracr. The COUrt noted tim Hogrobrooks had been previously notified about abStracting deficicncies.

Following a hearing, Mr. De-e-re had his suspended imposition of sentence revoked and he was selllenced 10 the Arkansas Departmel1l of Correction. Mr. Deere appealed from the trial court's action and Hogrobrooks, as his counsd, sel forth eighl poinl$ for reversal on appc;11. Although me firsr four poinu: 011 appeal rdated to me- iuuance and cxccurion of the search warralll, neither the search warranr nor the affidavit with exhibiu which supported the issuance of the search warrant were abstracted.

Hogrobrooks also challenged the denial of her motion asserting that the presiding judge should recuse; howeve-r, she did nOt abStraCI thc motion to recuse nor the hearing on the motion. Further. she asserted that her client's punishment was excessive-, an abuse of discretion and the- result of prejudice. Her aburaci omitled the original conditions of sllspension and Ihe judgme-llt and commitment order.

The appellate coun action resuhed in the affirmance of Mr. Deere-'s judgment and .scnre-nce.

It was asserted in the- Complaint Before The Commiue-e that all of the above- teferenced omissions evidence-d a lack of thoroughness :l.nd preparation reasonabl}' necessary 10 the representation of Mr. Deete. Also. her consistem refusal 10 comply with the abstracling rule demonstraled a knowing disobedience of the rules of the Court.

Finally, the cumulative effect of her actions as set out above was prejudicial to the administration of justice.

For her response and through her teslimony she acknowledged the absrracring deficie-ncies and a\'erred that she auempted in good faith to com pI)' with the requiremenlS. She testified ,h:l.t, of rwd\'e appeals, five have- had deficient abstracu. but that she now understands whal theCoun requires in the abstraCl and that previous abstracts submitted by her have been skdetal in form and comcnt.

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ovember 19, 1998

December 4, 1998

WlLLlAM NASH William

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Mr. Nash graduared from Little Rock High School, now Little Rock Cemral High School, in 1924. Ar his morher's urg-

working as a secrerary for me Price Shofner Law Firm, Mr. Nash realized rhe law appealed to him as an "acriviry rhar would inreresr him rhe resr of his life," Mr. Nash began attending nighr classes ar rhe Arkansas Law School in Linle Rock. He larer srudied law ar rhe Universiey of Chicago. Mr. Nash was elected a Rhodes Scholar and Iaeer ar Oxford Universicy in England received a half-blue varsity award for fencing, a spore he rook up when seeking an athleeic endeavor.

After graduaring from Oxford in 1931 with a bachelor's degree in civil law and in jurisprudence, Mr. Nash rerumed ro Lietle Rock and was employed by the Rose L,w Firm. He raughe 3r ehe Arkansas L1W School from 1931 until 1967 and was dean of the school from 1951 until 1967. He was a legal advisor to the Little Rock SeilOO) Board in the lare 1940s and early 1950s, and he helped drafr a reform program for educarion in ehe 19505.

III lh'IllOI'iillll MAX (BUDDY) COOPER Max (Buddy) Cooper, 70, of Rogers died July II, 1998. at his home. Mr. Cooper was a Navy veteran of the Korean War. He

3[(ended the University of Arkansas and the VA Law School, where he received a law degree in 1957. He was a former FBI agent and an adjuster for Travelers Insurance Co. for 10 years. He moved to Rogers in 1968 from Fort Smith and operated a private law practice for 30 years. He was a former deputy prosecuting anomey for Benton County.

Survivors include his children, Carol Cooper Kalamarides of Anchorage. Alaska;

Dale Ellis Cooper and Claire Cooper, both of Rogers; his wife, Susan C. Severin Cooper; one stepson, John Elbrechr of Washburn, Mo.; one stepdaughter,

serving on committees including the Supreme Court Ad Hoc Committee on Foster Care and Adoption Assessmem, the

Associarion of Counsel for Children, and Advocates for Children and Families.

At the 100th Annual Meeting of the Arkansas Bar Association held in June, it was announced mat the Arkansas Conflict Resolution Association had established the Judieth P: BaJentine Award for Merirorious Comriburion to the Field of Alternate Dispute Resolution in the State of Arkansas which will be awarded ro persons exhibiting outstanding performance in the field of mediation.

Judie is survived by her daughter and son-in-law, Dr. Jennifer Balentine and Brian Fin of Denver; step-son, SCOtt Balemine, of

he entered the Little Rock Public School sys-

Department of Human Services as an assistant regional attorney, later becoming super-

visor of the staff child welfare lawyers. In 1992 Judie became interested in mediation.

After training she became certified by the

American Bar Association and opened a private law practice in Little Rock.

Throughout her career, Judie donated hundreds of hours to children's welfare programs by participating in organizations and

bet of the Pulaski and North Pulaski Bar Associations and the American Bar Associarion.

He is survived by his wife, Margie Hendricks; a daughter, Karol Anne McNurr of St. Louis; three sons, Mike Hendricks of

Nebraska, Brad Hendricks of Little Rock, and Bryan Hendticks of Oklahoma.

JUDGE LOWBER HENDRJCKS

He was born June 28, 1923, in Little Rock, the son of Lowber Henricks, Sr. and Eulalia Hendricks, who were musicians working in Vaudeville at the time. From age 3 until age of 6, Judge Hendricks was a featured drummer in a specialiry Vaudeville act. At age 6

Judieth P. Balentine, 55, of Little Rock, passed away July 19, 1998, in Denver, at the home of her daughter and son-ill-law, after a long barrie with cancer. Judie, a devoted lawyer and family mediarof, graduated from UALR School of Law with a J.D. degree in 1978. She began her career with the

He was a member of the Arkansas Bar Association and the Association of Trial La\vyers of America. He was a former mem-

P. K. HOLMES, JR.

Judge Lowber Hendricks, age 75, of Little Rock died Friday, September 4, 1998.

JUDIETH P. BALENTINE

Hendricks Law Fitm, P.A.

Key West, FL; and sister, Betty Ashley of Augusta, GA.

Charlotte Smedley of Garfield; one brother, Dale Hoyt Cooper of Haughton, La; and four grandchildren.

Court for a four-year term serving Pulaski and Perry Counties. He was re-e1ecred to a second four-year term but at the end of the fifrh year he resigned the bench to return to the private practice of law. At the time of his dearh, he was president of the Lowber

tem and his farner sold his drums and would never let him play again, as he did nm approve of the lifesryle of musicians.

Judge Henricks attended the Universiry of Arkansas at Fayetteville and welH for active dury in the Navy. He participated in the D-Day assault on Omaha Beach in

P. K. Holmes, Jr., of Newport, Arkansas, died in early August. Mr. Holmes practiced law in ewport before entering the army in 1942, where he earned twO Purple Hearts.

After the wat, he returned to Newport and operated family businesses unril he retired in 1983. Mr. Holmes was very active in the communiry, serving such organizations as the Newport Chamber of Commerce, the Boy ScoutS of America, Rmary, and the Universiry of Arkansas AJumni Association.

He was a State Representative in the

Arkansas Legislature from 1970 to 1972, and served as a delegate to and vice president of the 1980 Arkansas Constitutional Convention.

Mr. Holmes is survived by his wife, Virginia Holmes Brown; two children, U.S.

Following the war, Judge

Attorney Paul K. Holmes, III, of Fott

Hendricks returned to the University of Arkansas, where he was a member of Sigma Alpha Epsilon fraterniry where he lettered in

Smith, Arkansas, and Virginia Holmes Brown of Dallas. Texas; a brother, Douglas P: Holmes of Newport; and four grandchildren.

ormandy.

1947 and 1948. He was a shortstop on the Arkansas Razorbacks baseball team.

He received his law degree in 1949 from the Universiry of Arkansas. For the next 14 years he worked as an insurance adjuster and claims manager for several companies. In addition to Arkansas, he lived in several other states. In 1963 he returned to Little Rock and entered imo the practice of law where he specialized as a rrialla\vyer in the

personal injury field. In 1978 he was elected Circuit Judge in rhe 5th Division Circuit

Please send obituaries to: The Arkansas

La"'yer. 400 West Markham, Little Rock.

AR 7220 I 501/375-4606 or 800/609-5668 or fax correspondence

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501-375-4901.

The editors resente the right 10 edit copy for length and c01ltinllity. If a photo is available, please send {lIId indicate whether it is 10

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The Arkansas Bar FOllndation acknowledges with grateful appreciation the receipt oj memorial gifts and scholarship c01Ilribwions given ill memory of the following individuals jimJl JUlie 19, /998, ,hrollgh Septelllber 24, /998: IN MEMORY OF JULIA FORSTER

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The Merger makes the CNA more valuable both to the firms we now insure and to those that are considering our coverage. · Com bi ned u nderwriti ng ex pertise enables us to price policies more flexible for small as well as large firms.

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

to attorneys

· Enhanced resources will improve responsiveness and service.

•

•

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

Firms currently insured by CNA can now expect even more value for their premium dollar.

For firms not insured with CNA, we can demonstrate how we will perform for you.

Call Reb amen for more information.

Telephone (501) 664-8791 Fax (501) 664-9487

The Arkansas Bar Association endorsed Professional Liability Program is underwri[(en 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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