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nsas awer Louis B. Jones, Jr. A New President for

1999-2000

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WEST GROUP


VOLUME 34, NUMBER 3 PUBLISHER

Arkansas Bar Association Phone: (SOl) 375-4606 F.,e (501) 375-4901

on en s

Homepage: www.arkbar.com E-Mail: cunderwood@arkbar.com

ARKANSAS BAR ASSOCIAnON 400 W. \larkham lJltle Rock, Arkansas 72201 EDITOR CAlhy Undmuood ASSOClATE EDITOR,

GRAPtUC DESIGN Sara umdis EDITORIAL BOARD David H. Williams, Chair Wiley A. Branton Thomas M. Carpenter Morton Gitelman James C. Graves

"HopefUlly we will modernize, streamline and depoliticize our judicial system. "

Jacqueline J. Johnston Lucinda McDaniel Thomas H. McCowan Jacqueline S. Wright

Loltis B. "Bltcky"jones, jr.

OFFICERS President

Louis B. mucky) Jones, Jr. President-Elect

Ron D. Harrison Immediate Past President

Robert M. Cearley, Jr. Secretary -Treasurer H. Murray Claycomb Executive Council Chair

Christopher Barrier Parliamentarian

Marie-Bernard... Miller Young Lawyers Section Chair Baxter Sharp

Executive Director Don Hollingsworth Associate Executive Director

Judith Cray

Laying the Gtoundwork for Change

On Ihe Cover: The caricature of Bucky was designed by Little Rock cartoonist George Fisher. Can you find 'Snooky"?

by Sara Landis

24

GOVERNMENT PRACTICE From the Government Practice Section Chair

by Jeff Broadwa"r

10

Why Bother Wi,h Bonds? by M. Jall< Dickey

12

EXECUTIVE COU Cil William M. Clark, Jr. F. Thomas Curry Thomas A. Daily Kay West Forrest Lance B. Gamer Ron D. Harrison Dave Wisdom Harrod Knox B. Kinney Edwin N. McClure Lance R. Miller Michael W. Mitchell Charles C. Owen Brian H. Ratcliff James D. Sprott Danny Thrailkill R. Scott Zuerker

"Too Plain to Be Misunderstood:" Sovereign Immuniry in Arkansas

by Jeff Broadwater

16

Supreme Court Approves New L.1.wyer Advertising Rules

20

Receor Developmencs in SexuaJ Harassmenr Law "How <he Rules of the Game Have Changed"

In This Issue

EXECUTIVE COUNCIL LIAISON MEMBERS Alice Holcomb Bradley D. Jesson Harry Truman Moore Judge Bentley F. Story Carolyn B. Witherspoon The Arbnsas Lawya (USPS 546-0W) is published quarterly by the Arkansas Bar Association. Periodicals postage paid at Uttle Rock. Arkansas. POSTMASTER: send address changes to The ArblllSQS LiIwytr, 400 West Markham-lillie Rock, Arkansas 72201. Subscription price 10 non-members of the Arkansas Bar Association $25.00 pet" yNr. Anyopinion expressed herein is that of the author, and not necessarily thai of lhc Ark.,nsas Bar Association or The Arkansas Lawyl'1'. Contributions to The ArkllllSQ$ lAwyer are welcome and should be sent in two copies 10 EDITOR,. The

ArlrJlllS4U Lawyer, 400 West Markham, UttJe Rock. Arkansas 72201. All inquirit5 regarding advertising should be sent to Editor, The Arka/lS,lIs tllwyer at the above address. Copyright 1999, Arkan<>as Bar Association. All rights

"""""'.

30

by Shawn D. Twing

ASSOCIATION ACTIVITIES

2 3 4

MEMBER BENEFITS

6

by LOllis B. "DlIcky" Jones, JI: DIRECtOR'S REPORT, by Don Hollingsworth

PRESIDENT'S REPORT, EXECUTIVE

LAW OFFICE TECHNOLOGY CLE CALENDAR

8 14

YOUNG LAWYERS SECTION REPORT

29

JUDICIAL ADVISORY OPINIONS

38

LAWYER DISCIPLINARY ACTIONS IN MEMORIAM CLASSIFIED ADVERTISING/INDEX TO ADVERTISERS

39 47 48


l'I'I'sidl'nt's IIl'plll't

The 4 P's by Louis B. "Bucky" Jones, Jr.

'This past year's efforts were focused sharply on improving and enhancing our professional compete1lcies, ethics, integrity, and the justice system. Dur;,'g the coming year we will continue the fine work ofthe Task Forces on Lawyer Admission and Discipline and Unauthorized Practice ofLaw ably chaired by Bill Bridgforth and Brad He1ldricks. "

fbe ,Irkma.! La~!1r

fol. Hlo. I/Solmer 1919

As we move toward the end of this cenrury and the beginning of a new millennium. you have entrusted to me the honor and privilege of leading our Association at this critical and historic time. In reflecting on my career(s) in private practice, legal services and higher education that have brought me to this point. I realized the "common thread" throughout my professional life has been my membership and participation In the Arkansas Bar Association. I am proud of the history and tradition of this organization. During our centenniaJ year we recognized and celebrated onc hundred years of professionalism. This past year's efforts were focuscd sharply on improving and enhancing our professional competencies. ethics, integrity. and the justice system. During the coming year we will continue the fine work of the Task Forces on Lawyer Admission and Discipline and Unauthorized Practice of Law ably chaired by Bill Bridgforth and Brad Hendricks. We will also begin the important work of educating and motivating our membership as well as the public concerning the details of the proposed Judicial Article amendment to our state constitution. Legislative approval and referral of the Judicial Article was achieved during the recent legislative session under the able and dedicated leadership of Judge John Stroud. We can all take pride in this achievement as well as the development of the most effective network of Bar Association members and staff. legislators and judges in many years. The task in the coming year will be to lay the groundwork for voter approval of the Judicial Article in the general election of November 2000 by involving every member in this effon.

We will also be discussing and voting on a proposal to reorganize and redistrict our association to make it efficient, responsive. and representative of our membership. This effon is capably chaired by the inimitable Harry Truman Moore, the past president named for a past President. We will also be looking at how we appoint, organize. and assign committees, task forces, etc. in an effon to "prune the bush" of our organization and make it more responsive. An applicable quote at this time in history is "the only conStant is change." The changes we have all experienced in our personal and professional lives are sometimes difficult to comprehend. much less accept. As we move into the new century and millennium, my hope and goal is to honor the past while embracing the future. My "theme" will be Pride, Professionalism, Persistence, and Preparation-the 4 P's! To assist and "counsel" me during the year I have asked and thank in advance Chris Barrier. who has graciously agreed to serve as Executive Council Chair. Thanks also to my lovely wife of twenty-nine (29!) years, Anita, and our sons, Cliff and Carrer, and my colleagues at Webster University for your encouragement and suppon. Last bur most important I ask for your personal involvement and support, This is your Arkansas Bar Association and I look forward to meeting the challenges of the year ahead as your servant-leader. 9


E\I'l'lItiw lIil'I'l'tlll'\ Hf'plll'l

How Our Association Handles Endorsements by Don Hollingsworth e-mail: dhollingsworth@arkbar.com

The Arkansas Bar Association has endorsed a number of produces and services for its members. ranging from legal research

co insurance. Currently there arc potencial new endorsements pending as well as the potential renewal ofseveral. Since members wil1 sometimes ask how and why these endorsements are made by the Association, this column will attempt to summarize the basics of Association endorsements.

The ultimate authoricy for endorsements is me House of Delegares, which has delegated at times final action on endorsements to the Executive Councilor a specific Association commince. A proposed endorsement will have been studied by a committee which makes a recommendation [0

the House of Delegates. Three commit-

tees which have been active in the endorse-

ment area recently are rhe Croup Insurance Committee, Member Benefits Committee and rhe Task Force on Legal Research, Publications and Technology.

The primary criteria for any endorsement is the benefit to Association members. bom as ro rhe qualiry of me producr or ser-

vice and ies COSt. The availability of a discounted price for members is always a consideration. Most of our endorsements generate little or no income to the Association through royalties or otherwise. When the Association does derive income from any endorsement agreemenes. it wil1 usually be paymem for Association assistance in marketing the products and services. Any income from endorsemenes is important as a means of keeping our annual membership dues at a lower level. A relevant issue in regard to most endorsement decisions is whether or not the endorsement is exclusive. Some companies will only entertain Association endorsemenr

agreements if they are exclusive. Other companies may consider non-exclusive endorsements, but the terms are less favorable to our members and our Association. The longest and most expansive endorsemenr arrangement of our Association is with Rebsamen Insurance Company. This relationship spans over 50 years, and ir was recently formalized in a new endorsement agreement approved by the House of Delegates and Executive Council. There are eighr insurance produces now endorsed by the Arkansas Bar Association, each of which comes with a 5% discount for Association members. (Other premium discounes to members are given by Rebsamen and C A for professional liabiliry insurance based

upon attendance at the C A loss control seminars.) There are times when a new or renewed endorsement is the subject of intense scrutiny by the Arkansas Bar Association. For example, me CNA professional liabiliry

insurance product was the subject of a lengthy review by our Group insurance Committee and House of Delegates several years ago, including an independent review by an impartial expert. The bottom line conclusion was that CNA and Rebsamen continued to give our members the best quality producr and service, including continuing availability of professional liability insurance coverage regardless of market conditions. Unlike some insurance companies. there is no cherry picking among Arkansas attorneys. Another recent example of intense scrutiny concerns legal research productS for our members. We currencly have member benehrs provided by LOIS and Lexis-Nexis.

These benefits will be reviewed again larer this year based upon the responses to

request for proposals which are being sem to these twO companies as well as others. It is always important to have me opinions of members about various produces and services. The resulrs of rhe 1998 Membership Survey have been helpful in

this regard. The survey rcsules are published in rhe Wimer 1999 issue of The ArkamllS

Lawyer. There are some products and services which are definitely desi.red by our members but which are nor feasible. Due to marker conditions, our Association does not currencly have an endorsement of a group health insurance plan or a long-distance telephone service. But the relevant Association committees are always willing to review marker conditions, and this is especially true of the Group Insurance Commirree in regard to health insurance. At the time this column was written in May, our Association was beginning an examination of a proposed endorsemenr which would give members steep discounes on the purchase of office supplies, equipmem and a variety of other produces, both job and leisure related. Such a new endorsement will be communicated to all members, and it will be immediately posted on the Association's Website: www.arkbar.com. The list of our current member benefits, inclucling endorsemenrs, can be found at www.arkbarcom. We welcome your commenes on these products and services as well as suggestions for new ones. The 1999-2000 chairs of rhe three above

comminees are: Larry Burks, Group Insurance omminee; Lamar Perrus. Membership Benefits Committee; and Srark Ligon, Task Force on Legal Research, Publicarions & Technology.~

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CELEBRATE

Shown abovt a~ Sara Luppm and A"d~w Ytmcq. from Iht winning Cmtral High School /tam.

ARKANSAS MOCK

TRJAL

COM PETITO The Arkansas Bar Association annually sponsors a statewide Mock Trial Program for Arkansas students. What is a Mock Trial Competition? It is much like a real coun trial. Team members, "anorneys" and "wirnesses," prepare a case for trial before a judge. All competing teams prepare the same case. Local Teams in a district compete and advance to the regional competition. Those winners then vic for the state championship. and the state champion then has the option of competing nationally. For the past four years the Arkansas winning team has competed at the national level. With the help of anorney and teacher coaches, teams prepare for competition according to established rules governing trial procedures, which are modified from those of formal trials. Team members learn the trial rules, rehearse their own roles in a trial, prepare strategy, and must be able to think quickly during competition. Teams are judged on their ability to follow procedures and present a plausible case. This pasr year 52 reams of junior high and high school students from around the state signed up to participate. Over 75 lawyers and judges volunteered to work with the teams as coaches, or served as judges or in other capacities to help the teams. The stare champions for rhe 1999 Mock Trial were from Central High School.

Arkal/sas yout", grtUks 9-12 or ag" 14-19. an ~ligibk to comp~u. Em:b Uom must bove n teacher spOllSor ond should hove Oil attorl1t!J coach. N~xt year when yOIl are asked to participate ill the Mock Trial Comp~tition. be pr~pared to sign 011 and support this program.

OUR

FREEDOM:

1999 LAw

DAY ACTMTIES

The Young Lawyers Section of the Arkansas Bar Association joined forces with the Arkansas Association of Legal Assistants and the Associarion for Arkansas Legal Support Professionals for the 1999 Law Day Poster COntest and Essay Comesr. For the Poster Contest, the YLS and the Arkansas Association of Legal Assistants (AALA) sent information packets to all public schools and all 5rh grade studenrs and encouraged them to submit an entry on his/her interpretation of the Law Week theme, .. e1ebrate Our Freedom." Over 600 posters were received by county bar associations. Local attorneys judged the posters and chose the top three posters from each county. Overall judging was held April 29rh ar the Arkansas Bar Center. The judges were from every level of rhe legal sysrem. They included a third year law student, a United States District Court Judge, legislarors, legal assistants, and attorneys. After the winners were chosen, a ceremony was held May 5th ar the Srate Capitol. All the winners, their families, teachers, and principals attended the ceremony. The winners received a roral of $1,100.00 in U.S. Savings Bonds, certificates or ribbons, and had their picture made with Arkansas' First Lady Janet Huckabee. The posters were on display at the Capitol during the entire week of May 3-7, 1999. Special thanks to the law firms which donated funding for this massive project;

and no more than 1,000 words, were judged on clarity of writing, reasoning and understanding of subject matter. The essay topic: Why do we have laws? The top ten essays were selected by member> of the MLS and the Young Lawers Section, and were then reviewed by the justices of the Arkansas Supreme Court to select the winning essay. The winner, M. E. Keisha Brusstar of Ramsay Junior High School in Fayeneville. Arkansas, was presented with a $500 savings bond which was pardy funded by rhe Arkansas Bar Association. and was honored before the Arkansas Supreme Coun on Thursday, May 6, 1999...

CiJism"ali. Nesrrud & julian, PA.; CroIS. Cunur, Witlmspoon & Cau"us, Pc.; Friday. Eldrtdg< & Clark, PA.; and Mite".LI, Williams, S.lig, Caus & Woodyard, PL.L.c.

For the full text of the winning essay, visit the Arkansas Bar Association website at www.arkbar.com.

Both tlu Arkansas Association of Legal Assistaltts. Iltc. (AALA), altd AALS tI" Association for Arkansas L~gal Support Professionals (form~rly the Arkallsas Association of Legal &cretari~s) are 110nprofit. stauwid~ associatiollS for legal support professionals. Both groups support th~ir mnllbers ill cOluinuing th~ir kglll education through stminllrs lind n~wskturs. voluntary nlltiollal certification programs lind local study groups. and n~tworking opportuniti~s. For additional illfonnation rtgardiug AALA. pleas~ coutact Paula A"dersol/. ClAS (50t) 975-3000. For additional infonllation regarding AALS. puns< cOl/tact Kim Cooksty. PIS (870) 935-2220.

Special thanks to (he attorneys across the state. mainly from one-or-rwo-attorney firms, who went to the schools, picked up rhe posters, judged rhem and rhen gor rhem to Little Rock. Special thanks. also, to the Judges: jl/dg< William R. Wilson, j" MauriÂŤ

Mitd"ll, Esq.; Mark McCarty. Esq.; jim julian, Esq.; R. Marga'" Dobson; Paula AI/tinson. ClAS; RrpmmtatilN! St"" Nap!'"; and David Surling, Esq. This is the third yeas thar rhe YLS and the Associarion for Arkansas Legal Support Professionals (AALS) have sponsored an essay contest for 7th graders enrolled in an accredited statewide school system. The essays, which were to be no less than 500

kfi 10 rig/H. a~ Dr. L. urry Brussl4r, M.E. Ktishn BrusSl4r, ClJiifJustict WH. "Dub" Arnold, D~annn W Siria. Kayla ShtlJon, and David SI"ling.

Abov~. from


Retirement Programs

The ABA Members Retirement Program was designed by lawyers, for lawyers. That' why it provides the options that tOOay's law firms need. The Program features a wide selection of investment offerings and plan options, including the new SIMPLE 401 (k) plan, plus comprehensive services lhat can eliminate administrative headaches and free up valuable, billable time. These are just a few of the reasons why we currently service over 5,000 plans in the ABA Members Retirement Program.

The Program offers comprehensive services and features including: • Core Funds • Structured Ponfolios 'Self-Managed Brokerage Accounts • Plan Sponsor Services And Assistance • Participant Services If you're interested in a retirement program designed around your firm's requirements, call: 1-800-826-8901.

AB~

,IIIEMBER'. . RETIREM::iNT

OFFICIALLY ENDORSED BY THE ARKANSAS BAR ASSOCIATION

PHOC;".AM

.Iu ohtllin a Prosl:leCtus ahout the Progro1l1. learn nhoul ChllrgC$ llnd eXp('nIW!l or s-I>cuk willJ II Plil/l Con!>ultllllt. ('/111 ]-800-826-8901. Bead the prospeCIIl!l ('urefully lX'fore you forwaru or in\t':>t funds. The AHA Members l(etirel11cnt I>rognllll is offered through Slate Slrt't>t Hllnk lind Tnl:,l Cump/IIlY· AHA MelllUers Herirernclll Progrum • PO !lo.: 2236 • Hoston. MA 02107 Visil our web site

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I Ullrlulll Li"Jlr

l'el.llll.lISelllr 1m


Ill'udllll \1'11 S LEXIS®-NEXIS® Member Benefit Program Provides S% Discount to Arkansas Bar Association Members Members of the Arkansas Bar Association are eligible for a five percent discount off monthly Rat-ratc subscription charges when they begin a new subscription ('0 the LEXI 5- EXJ S services. Through the LEXIS-NEXIS program, bar association members receive a five percent discount ro any subscription services that indude Matthew Bender«' online, SHEPARD'S", public records, EXIS business. financial and legislative information. as well as

jurisdictional and specialty libraries. .. We feel strongly that LEXlSNEXlS offers many advantages to mem hers of the legal profession.

and consequendy are offering a discount when they begin a subscription to our services," said Renee Circra, Midwestern region sales director for LEXIS- EXIS. LEXIS-NEXIS subscribers pay a fixed monthly rare for JUSt the part of the LEXIS-NEXIS services they need. Only LEXIS-NEXIS provides researchers free access [Q virrually any case, law review, article and code omside their LEXlSNEXl fixed rate subscription when they know the cite or statute. One of the principal advantages of subscribing to the LEXJS services is access to the new SHEPARD'S Citations Service, which provides researche.rs with the following advantages: • Incorporation of the Auto-Citee service and LEXClTE~ feature into SHEPARD'S, vastly increasing access to published and unpublished decisions and making available the full LEXIS casdaw database for citations research An innovative FO US1loI feature, which for the first time applies the powerful

search engine of the LEXIS-NEXIS services to a citations product Integration of parallel citations into a single search, as well as improved system navlgauon SHEPARD'S will be exclusive on LEXIS-NEXIS beginning on July 2, 1999. In addition to SHEPARD'S, subscribers to LEXIS-NEXIS receive: Free, unlimited training, and the expert advice of the attorneys, paralegals and other experienced rep resen tati ves. Customer service re prese n ta tI ves arc available to provide assistance 24 hours a day, seven days a week. New features that make the LEXIS- EXIS services easier to use than ever. including LEXIS Case Law Signal, Core Terms, Selected Text and Legislative Linking. • The choice of the LEXIS- EXIS services using proprietary software, and/or via the web through the LEXIS-NEXIS Xchangel'M service at www.1exis.com. To learn more abour the LEXIS-NEXIS Member Benefit Program, call 800-3566548 and mention the Arkansas Bar Association. Discount applies to allY size law finn. Discount does not apply if tbe finn has mbscribed to tIN LEXlS-N£XJS services witbin the last 6 mOllths. Frre IUCt!SS applies only whell searcb is peif'onned from witbin tbe subscriptioll. LEXlS a,uJ NEXIS art! regist""d trademarks alld Xcbange is a tratkmark of Rud Eun;ier Properties bu., used ullder lunue. Mattbew Bender is n registered tradmlork of Mattbew Bemler & Co. SHEPARD'S is 0 regisured trademark of SHEPARD'S Company.

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7


tilll

Offirr Trrhnolog)

A Lawyer's Use of E-mail by Stan Rauls

"Although the opinion specifically notes that usage ofe-mail is consistent with a lawyer's ditty u"der Model Rule J. 6 to use reasonable means to maintain the confidmtiality ofclient il1fonnatioll the committee diluted the opinion with the following concluding remarks... " J

T

he American Bar Association recently issued Formal Opinion No. 99-413 regarding the use of unencrypted e-mail. The opinion states that a la\vyer may send client informacion by unencrypted e-mail over the Internet without violating the Model Rules of Professional Conducr (1998) because e-mail affords a reasonable expectation of privacy both from a technological and a legal standpoint. The Sranding Committee on Ethics and Professional Responsibility relied heavily upon a perceived similarity in privacy accorded mail, land-line telephones and facsimiles as compared with sratutes applicable to communicarion through the internet. Alrhough the opinion specifically nores that usage of e-mail is consistent with a lawyer's duty under Model Rule 1.6 ro use reasonable means to maintain the confidentiality of client information, the committee diluted the opinion with the following concluding remarks: Even so, when the lawyer reasonably believes that confidential client information being rransmitted is so highly

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senSl(lVC that extraordinary measures [0 protect the transmission are warranted, the lawyer should consult the diem as ro whether anomer mode of transmission, such as special messenger delivery. is warranted. To rhe exrenr that any meaningful significance of the opinion survives its concluding caveat, the opinion may comfort an anomer hoping ro escape blame for an unauthorilCd disclosure. However, lawyers seeking (0 prevem rather than justify improper disclosures are best advised [Q implement security measures when communicating through rhe imerner. Criminal sr3CU[es (though intended [Q have a dererrenr eff"ecc) do nor justify an expectation that the offending condua will not occur. AJthough crime is not contained by geographical boundaries, those who wish to test their faith in the deterrent effect of criminal statutes need only walk alone at night in an undesirable neighborhood. Criminal sratutes are likely to have a maximum deterrent effea upon people not otherwise likely to commit a ctime. For the remainder of the population, such laws serve merely to punish those criminals actually caughr and processed through the judicial system. Reliance upon criminal laws to punish officious intermeddlers on the "information superhighway" overlooks the statistical improbability that wrongful interception of electronic communication will even be detected. At any rate, the disclosed information cannot be retrieved regardless of whether punishment is imposed. The opinion notes that there are risks inherent in any form of communicationmail can be stolen or misdirected, for example, and relephones can be rapped. Thar analogy, however, is Aawed. Both the theft of mail and the tapping of telephones carry a stigma in our society which usually derers all but those who are criminally inclined,

incurably stupid or soon to be divorced. Computers. on the other hand, have spawned what seems to be a sizeable subculture that considers theft ofelectronic data to be a form of entertainment or test of technological skill popularly dubbed "hacking." More importandy, mail and telephone communication are typically point-to-point transmissions, but internet communication travels through 3 multitude of computers, some of which are the elearonic equivalent of thar undesirable neighborhood and all of which are monitored or maintained by "techies"-the very segment of society where "hackers" happen to be concentrated. (It might be fair to note that nor all "techies" are "hackers," but it would seem accurate to assert that all "hackers" are~ to some degree, "techies.") It is not only a technical subcultUTe that places electronic data at risk. People, in general. view electronic information differendy from its printed or spoken counterparts. As the committee noted, mail can be misrouted. Bur mail typically enjoys the added security of an envelope while e-mail is the electronic equivalent of a postcard which may be viewed, copied or altered with little opportunity for detection. And although the rechnicaJ expertise of computer users continues to increase, the margin for electronic error is still far greater than with conventional mail. Mail and telephone communications are routed through large organizarions with internal safeguards far beyond those attempted through criminal statutcs. The internet, on the other hand, is a largely unregulated network of computers, each of which relics upon "the kindness of strangers." AJthough internet users may have a reasonable expectation of efficiency when communicating through rhat medium, an expecration of privacy is misplaced .â&#x20AC;˘


The

Intem~ent New

Hire

Save Money on Expensive Individual Firm Announcements. Place Your Announcement in The Arkansas Lawyer.

O

Fortunately for the weary. overworked

nce upon a time. there waS a very busy low office. "Deary me. we are so

overworked," cried the weary associates. "If

laW office. the most intelligent new hire knew just what to do! A Firm Announcement in _--.L.~

only we hod more associates to

The Arkansas LmIC)'er would cer-

assist us in our tasks!"

tainly be the most cost effective

AlaS. their cries were heard. "I know,"

way to reach the majority of the

thought the ever-on-top-of-

legal community (much less expensive than

things manager type. "I'll hire a

mailing individual announcements)! And that is how it came to be that a

new associate to assist the weary. overworked associates we

snappy-dressing. efficient assistant WaS

already have!"

given the task to purchase on announcement

And so it waS done.

But how to get the word out to

in The Arkansas Lawyer informing the legal

their peers about this most intelligent new

community of the weary. overworked

hire left the law office in quite a quandary and

law office's very forward thinking

led to many high-powered

business acumen which resulted in the

meetings to discuss just

acquisition of the intelligent new hire. thus

which course of action to

making the majority of the legal community

follow.

green with envy!

It's easy to place your Firm Announcement (a

501-375-4606 or 800-609-5668. and Cathy

new associate. a new portner. a chan~e of address. etc,) in The Arkansas Lawyer. Call

or Sara will send you all you need to make Uoo'!:-;:;:...{

your

collea~ues ~reen

with envy!

fll. II XI. I/SlllIIr I. III

TIl lrtmn LI~Ilr


OPENNESS, ETHICS & PROFESSIONAliSM IN GOVERNMENT PRACfICE

Government Practice Section

A Seminar sponsored by the NEW Government Practice Section of the Atkansas Bar Association

"lAwyers in govenl1lltllt practice

6. 75 CLE Hours' Oc,ob.,. /5, /999 UALR Scbool of Law Litlle Rock, Arkallsas

constituu a large and important

segme1Jt oftbe legal profession. and the new sectioll is intended to belp tlJe Association serve them

• The FOI, The Arrorney-Clienc Privilege, and me Work Product Doctrine in the Public Secror: Federn1 and State Perspectives

more effictive/y.

planning a continuing

legal education program for October /5 ,bar will

The Government Law Office: Roles & Responsibilities

focus uclu.sively Oil issues ofCOllurll to lawy~

Ethical Issues for Governmem Lawyers

• Professional

Problems

Governmenr Practice: from me Bench

representing public agencies..,

In

A View

Public Meetings and me FOI • Lawyers. Judges and Reponers: Handling me High-Profile Case

JOIN! JOIN! JOIN! FaD KickoffFun for the Government Practice Section following the seminar

II He ,'rkmlll.l~]er

we are currently

I'll. II NI. I/S.ller Ill!

his issue of Th~ ArkomaJ Lawyn- is dedicated co governmem practice, and especially to those lawyers who work for federal, State and local governments. It is a joim vemure of the edimrial board and Staff of Arkansas Lawy" and the Arkansas Bar Association's new Governmem Practice Section. The successor to the Associuion's Public SectOr Law Committee, the new section represems a renewed commitmem by the Association ro meet the needs of lawyers in the public sector and CO encourage their membership and active participation in the Association.

T

n,

The new section was approved by the House of Delegates in October 1998 and held its first organizational meeting during this year's annual Association meeting in Hot Springs. The section has about fifty members already, twice the size of the old Public Sector Law Committee, bur we want more. Lawyers in governmem practice constitute a large and important segmem of the legal profession, and the new section is imended to help the Association serve them more effectively. We are currently planning a cominuing legal education program for October 15 that will focus exclusively on issues of concern to lawyers representing public agencies. This issue of Th~ Arkansas LAwyrr has rwo articles aimed at lawyers who represent or practice before government bodies. Jane Dickey discusses the selection of counsel for a public bond issue. My article surveys the law of sovereign immunity in Arkansas. Finally, the work of mose who made the Government Practice Section and this issue possible-Jack McNulty, Bob Ceatley, Bucky Jones, Sandra Cherry, Don Hollingsworth, David Williams, Judith Gray, Camy Underwood, Larry Jegley and many others should be acknowledged. Their work shows that this Association does care abollt the public lawyer.9 Jeff Broadwater


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WHY BOTHER WITH BONDS? By M. Jane Dickey

YOII donI. have to bt " dty nttOnlty to nud to know something abou.t municipal bonds.

What do these clients have in common? A cicy that needs a new fire truck or water system improvements A developer who needs to construct streets and sidewalks in a subdivision or (Q build or acquire an apartment complex A hospital mat needs a new cr scanner

A college that needs a new dormitory An industry that needs to expand Answer: They may all be candidares for municipal bond financing. WHY USE BONDS? While it is true that using municipal bonds ro finance capital Improvements IS morc complicated and involves higher from-end COSts than conventional financing with a bank or ocher insriruejonal lender, there are several reasons your client should consider bonds. If the diem is the State or a local government, the reason is clear-it is the only way it can legally borrow money for longer than a year. A cicy cannot JUSt go to the bank and get a 36-monrh loan to buy a fire truck. l If the c1iem is a for-profit company or a non-profit organization, it might utilize bond financing for one of these reasons: Low Interest Rates. If they are issued on a tax-exempt basis, rhe imerest rate on municipal bonds can be lower than any other type of financing available because the imeresr is excluded from the gross income of the bondholders for federal income tax purposes. Even if the interest on the bonds is nor exempt from federal income taxation, it is exempt from Arkansas income taxes. Access to Capital. A company with limited capiral or a short operating history can gain access to capital marketS otherwise closed to it if the bonds are guaranreed by the Arkansas Development Finance Authoriry ("AD FA") or Department of

It

Ur "r~lIlll L1MW 111.11 X,.IIS,••rr 1m

Economic Developmenr ("OED"). secured by a bank lener of credir, or insured by a bond insurance company. Ad Valorem Tax Abatemem. A company that uses a cicy or councy to issue bonds to finance its new industrial facilities has the opporruniry to ask mar issuer for a waiver of some or all of the ad valorem property taxes on rhe facilities. The agreement between the city or county and the company is referred to as a PI LOT, for Paymem in Lieu ofTaxes. 2 A company or organization will work through a state agency, city or county, or local facilities board for the issuance of bonds. The bonds are repaid solely by the private beneficiary and not from the resources of the issuer. The issuer serves as a conduit for the private beneficiary, which is the ultimate obligor on the honds. LEGAL CONSIDERATIONS The use of municipal bonds as a means of raising capiraJ requires investigation imo thtee major areas of law: • State Law. The Arkansas Constitution and statutes must authorize (and musr nor prohibit) the bonds for the imended purpose. • Federal Tax Law. If the imerest on the bonds is to be excluded from the gross income of the bondholders, the Internal Revenue Code and the I. R.S. regulations must be complied with. Securities Laws. Municipal bonds are securiries. When publicly offered. federal and scate securities laws as they rdate to lhe municipal securities market must be consulted. These include antifraud provisions, available exemptions from registralion, and ocher regulacory provisions which have me effect of requiring adequate disclosure when the bonds are originally issued and continuing disclosure of cerrain information and events throughour rhe life of the bonds. In large measure, these cluee areas of the law must be analyzed separardy. Bonds may be authorized under Arkansas law for which no federal tax exemption is available; conversely, the Internal Revenue Code may allow tax-exemption for a rype of bonds that are nOt authorized under Arkansas law. Recently announced increased enforcement activities of the Internal Revenue Service and the Securities and Exchange Commission in the municipal finance area serve to emphasize the imporunce of competent bond counsel.

STATE LAW Bonds may be amhorized by legislative action when they are to be repaid by rentS, user fees, charges, or other revenues. Examples of revenue sources a city might have include itS municipally-owned water, sewer, and electric utilities. parking meters and garages, itS airport. and utility franchise fees. Cities and counties must obtain vorer approval to issue bonds secured by ad valorem taxes. sales and use raxes. or hotel and rescauranr raxes. and me State is likewise conscrained in pledging tax receipts. Amendmem 65 to the Arkansas Constitution amhorizes the issuance of revenue bonds for capital improvementS of a public nature, facilities for the securing and developing of industry or agriculture, and other public purposes aurhorized by the General Assembly. If a private business user is involved, however, these purposes are prohibited: shopping centers or other establishmentS engaged in the sale of food or goods at retail; and these purposes are prohibited unless the issuance of the bonds has been approved at an election: hotels or motels, remal or professional office buildings, or facilities for recreation or entertainment. There are over 100 different statutory memods for issuing bonds in Arkansas, but only a few of these are of interest to private companies and charitable organizations seeking conduit bond financing: Revenue or special assessment bonds under the Property Owners' Improvemem District Law3 or the Municipal Pro perry Owners' Improvement Disuict Law4 for real estate deveiopmem facilities such as waterworks, sewer systems, Street improvements, recreational facilities, sidewalks, gas pipelines. relephone lines. and rural fire departmentS; • Revenue bonds under the Public Facilities Boards Act5 for a variery of capital improvement facilities. including those for health care, residential housing, off-street parking. recreation and the touriSt industry, waterworks, sewers. energy, education, emergency medical health care, and hydroelectric power; Industrial development revenue bonds under the Municipalities and Counties Industrial Development Revenue Bond Law (also known as "An 9")6 or the Economic and Industrial Development Revenue Bond Law of 19857 for securing and developing industry; • Revenue bonds for tourism projecrs 8 (bur


nOte the restrictions in Amendment 65)9; Revenue bonds for the elimination of urban blight and decay and provision of modernization and general improvement of properties within a central business improvement disrrict lO (but note the restrictjons in Amendment 65); and • Revenue bonds under the Arkansas Development Finance Authority Act ll for a variety of purposes including agricultural businesses, capital improvements. health care. and industrial enterprises. A common thread in almost all of the Arkansas statutes authorizing the issuance of conduit bonds is that they authorize the issuance of bonds for the purpose of financing capital improvements. but not working capitaJ.I2 Cities and coumies must obtain voter approval before they can pledge ad valorem taxes, sales and use taxes, or horel and restaurant taxes to the repayment of bonds, but in most cases only local legislative action is required if the bonds arc to be repaid with revenues.

WHAT DOES BOND COUNSEL DO? The primary role of bond counsel in a transaction is to render an expert and objective legal opinion that the bonds are valid and enforceable and (usually) that the interest on the bonds is excluded from gross income for federal income tax purposes. Although bond counsel's opinion is delivered at the close of a completed transaction, it is of the utmost importance to involve bond counsel in the planning stages of the financing in order to forestall costly, timeconsuming, and even "fatal" errors. Bond counsel's client is usually-but not always-the issuer of the bonds. It is helpful to have a written engagement letter to form a clear understanding of which party bond counsel represents. who pays bond counsel's fees, and bond counsel's role in the transaction. Bond counsel typically acts as the director and prime mover of a municipal bond transaction, starring with the identification of relevant legal issues, preparation of most of the documentation, negotiation of the terms of the transaction. and supervision of an orderly closing. Bond counsel also can prepare election proceedings, assist in obtaining necessary governmental approvals and exemptions. supervise publication of notices and ordinances, consult with the client about the stfUcrure of the bond issue. pre-

pare portions of the public offering document (called an "official statement"), assist in presentations to rating agencies and bond insurance companies. review the bond purchase agreemenr. and occasionally draft legislation. Other lawyers are often involved in the financing, representing other parries. such as special tax counsel, underwriter's counsel, issuer's counsel, disclosure counsel, trustee's counsel. and counsel to the conduit beneficiary.

ARKANSAS PROFESSIONAL SERVICES PROCUREMENT STATUTES The State of Arkansas and its political subdivisions are prohibited from using competitive bidding for the procuremenr oflegal and other professional services. Instead, the issuer "may encourage firms ... to submit a.nnual statements of qualifications and performance data . . . or may request such information as needed for a particular public project."13 Firms are evaluated according to mandated criteria and negotiations are then undertaken with the best-qualified firm. 14 The key elements set out in the statute are experience and technical competence. service delivery capabilities, past record of performance. and proximity to and familiarity with the area in which the project is located. These criteria are equally appropriate when bond counsel is selected by a conduit beneficiary rather than the state or local government. tn either case, more subjective measures of a firm's abilities and quality of work should also be considered, such as thoroughness. creativity. integrity, motivation, service, timeliness. ability to work with Others, response to pressure, and other intangibles. A special commirree of National Association of Bond Lawyers has prepared The Selection and Evaluation of Bond Counsel to provide guidance to issuers in the selection of bond counsel and evaluation of their services. This publication includes examples of questions to include in a request for qualifications. Copies of the 1998 edition may be obtained from NABL at a cost of $20 for nonmembers (J 761 South Naperville Road, Whearon, IL 60187, telephone (630) 690-1135, fax (630) 6901685, email nabl@ntsource.com). Endnotes 1. A proposed amendment to the Arkansas Constirurion ro permit shorr· term borrow. ing by cities and counties on a more busi-

nesslike basis will be on the November 2000 general election ballot. 1999 H.J.R. 1012. 2. S(t Pulaski County

3. 4. 5. 6. 7. 8.

II.

jacuzzi Bros. Div., 332

Ark. 91, 964 S. W.2d 788 (1998). § 14-93-124 " "q. § 14-94-123 ""q. § 14-137-115 ""q. § 14-164-206" "q. § 14-164-507 ""q. § 14-170-206" "q.

9. Butsu Purvis

II.

Lit& Rock, 669 S.W2d 900

(1984). 10. § 14-184-205 tI "q. II. §15-5-301et"q. 12. ADFA may issue bonds ro finance working capital for hospita.ls. Ark. Code Ann. § 15·

5-103(1 I)(B) (Rep!. 1998). 13. Ark. Code Ann. § 19-11-802(a) (Rep!. 1998). 14. Ark. Code Ann. § 19-11-803, -804 (Rep!. 1998). M. Jane Dickey practices with the Rose Law Finn in Little Rock and focuses her practice on Municipal Finance. She is a past president of the National Association of Bond Lawyers.

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SOVEREIGN IMMUNITY IN ARKANSAS "The framers ofthe constitution certainly knew that instances ofhardship would result from the prohibition ofsuits against the State, but they nevertheless elected to write that immunity into the constitution. The language is too plain to be misunderstood, and it is our duty to give effict to it. " George Rose Smith in Bryant v. Arkansns State Highway Commission, 233 Ark. 41, 44, 342 S.W.2d 415, 417 (I 961). By Jeff Broadwater

T

he doctrine of sovereign immunicy was a staple of the common law, but Arkansas is onc of only a few states that has included it in its constitution. Article 5. ยง 20 of the Arkansas Constitution provides that "[t]he State of Arkansas shall never be made a defendant in any of her courts." The words may be coo plain to be misunderstood, but they have been at issue in dozens of reponed cases, and the Arkansas Supreme Court is caBed upon to interpret them at virtually every tcrm of courr. The language of the constirurion is as broad as it is plain, and the language of some of the cases is almost as sweeping. I Sometimes the Court has gone so far as to say "all suits against the state were expressly forbidden" by the constitution, and to claim that "[tJhe only exception to tOtal and complete sovereign immunity from claims which has been recognized by this court occurs when the state is the moving parey seeking specific relief."2 Injured parties whose claims are subject to sovereign immuniey may seek the State Claims redress before Commission} The doctrine of sovereign immunity has been widely criticized throughour the twentieth century as the growth of government has increased the occasions on which scate anion may injure individuals. The modern trend, at least in those states in which immunity is a creature of statute or com~ mon law, as opposed to the state constitution, has been to relax or abolish it:l: Despite the emphatic language of the constitution and some of the cases, the Arkansas Supreme Court has recognized numerous exceptions to sovereign immunity, and recent decisions suggest that the court has no particular interest in expanding me doctrine. Nevertheless, the court, while it has refused to invoke sovereign immunity in a handful of intriguing recent cases, has

16

Thr Jlrkans;lll,!II!rr

fol.ll,lo.lISumollir 1999

retained ilie core of the immunity defense as it has evolved in this century. Sovereign immunity originated in the common law maxim iliat the king could do no wrong. Bur more modern arguments have been made in its defense, especially when it is extended to public employees and officials who might otherwise be held individually liable for their conduct. Judge Learned Hand and the treatise writer William L. Prosser believed it allowed public employees to discharge their duties free from the fear of retaliation for unpopular decisions. Others have argued it helps government to attract skilled employees because their potential liability would not otherwise be commensurate with their relatively low compens3tion. 5 Under Ark. Code Ann. ยง 21-9-203(a), however, the Stare will indemnifY state employees for actual damages assessed against them for injuries caused while they were acting in good faith wilhin the scope of their employmenr. Although ilie Arkansas Supreme Court has rarely offered an extensive rationale for the principle of sovereign immunity, it is the possible impact on public finances, or "tapping the State's treasury" that may be the mOSt important consideration underlying the scate's immunity from suit. 6 Perhaps the mOSt compelling justification for the doctrine of sovereign immunity today is the argument that public funds, to the extent practicable, should be appropriated by the legislature through the political process, not by the courts. Article 5, ยง 20 immunity should not be confused with other types of immunity sometimes available to public agencies and employees. States enjoy immunity under the Eleventh Amendment to the United Stares Constitution to suits in federal court. 7 Federal law recognizes a "qualified immunity" for public officials sued under

42 USC ยง 1983: state officials are protected from personal liability if their actions, though unlawful, are nevertheless objectively teasonable in light of the clearly established law at ilie time of the events in question. 8 The Arkansas General Assembly has by statute conferred immunity on political subdivisions of the state. 9 Officers and employees of the state are immune from civil liability for non-malicious conduct occurring wiiliin the scope of their employment, except to the extent they may carry liability insurance. to Many of the applications of the sovereign immunity doctrine are predictable: it most clearly bars a suit for money damages Moreover, under against the state. J J Arkansas case law, where a suit is brought against a state officer or agency over a matter in which the defendant effectively represents the state, the state will be treated as the real party in imerest if 3 judgment for ilie plaintiff will operate to control the action of the state or subject it to liabiliry.12 Other applications of the doctrine may seem more problematic. Sovereign immunity has been held to prevent enforcement of an indemnity clause against the state in a lease agreement with a private lessee. It may limit the amount of a defendant's counterclaim in a suit brought by a smte agency to the amount sought by the state. A garnishee may nor seek to recover, in a suit against a state agency, wages garnished for child support paymenrs that were wrongfully collected and expended by the state on behalf of the dependent child. A state agency may not be subject to a fine or restitution to a victim for the actions of a delinquent juvenile in its custody, although a private citizen acting as custodian would be. A state court generally will not hold a state agency liable for court costs or attorney's fees. A landowner may not try to obtain damages


for properry raken

by rhe

Highway

Commission by seeking an injunction or a writ of mandamus compelling the Commission [0 initiate a condemnation proceeding. 13 Exceptions co sovereign immunity are virtually as numerous as the cases in which it has been applied. If a suit for money damages against the state is the classic case for the invocation of the defense, the case in which the state is the moving parry is the classic exception. The Highway Commission may be enjoined from raJcing property until an amount of money sufficient to cover the landowner's damages has been deposited in court, and when the state seeks an injunction to compel compliance with a costly regulation. the landowner may seek compensation for the loss in the same proceeding. 14 In fact, sovereign immunity has been held inapplicable to suits to enjoin ultra vires, arbitrary or unconstitutional actions by state officials,15 or to actions for declaratory relief. 16 Arkansas courts have recognized the power to punish criminal contempt as an inherent judicial power and have recognized, at least in dicta, criminal contempt as an exception to the sovereign immunity doctrine. 17 Despite language in older cases to the contrary, the legislature can waive the state's Arricle 5, § 20 immuniry and authorize by statute suits against the state in specific

cases. For example, Ark. Code Ann. § 2618-507(e)(3) permirs a raxpayer ro sue rhe state after a claim for a refund has been filed and denied or not acted upon. Immunity is nor necessarily available to the defendant who. although retained by the state. is nor a state official or employee. An independem contractor may be held liable for negligence or i.ntentional [OrlS even when acting under the direction of a state agency that is itself immune from SUic. 18 In several recent decisions of varying

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seemed reluctant to expand the doctrine of sovereign immunity.19 In Newton v. Etoch. 20 the plaintiff sued a state police officer and a deputy prosecuting attorney for false imprisonment in violation of Section 1983 and state law. The couer ruled that the plaintiff's allegations of malice-that, inter alia. the

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immune from suit because they were acting within the scope of their duties as state officers. The state law was not a valid defense to a Section 1983 claim for deprivation of civil rights by a person operating under color of state law.

Ozarks UnLimited Resources Cooperative, Inc. v. DanieLr21 involved a landlord's suit against an educational cooperative for

breach of a lease agreement. AJthough me cooperative was organized pursuant to state law and funded by the state, the court concluded that it was "more closely analogous" ro a school district than ro a state agency and refused ro allow it to claim immunity. The court nared the cooperatives were organized by school districts, and their employees were hired and terminated using the

same procedures. Perhaps more significant was Carson lJ. Weiss,22 which reaffirmed a 1983 decision 23 mat Atticle 16. ยง 13 of the Arkansas Constitution, authorizing citizens' suits for illegal exactions, controlled the more general sovereign immunity provision. But the court in Carson went on to hold that a taxpayer who had not complied with the requirement under Ark. Code Ann. ยง 2618-507 that a taxpayer seeking a refund first file an amended return with the Department of Finance and Administration could nevermeless represent a class of similarly situated taxpayers. The chancellor had denied class certification under State lJ. Staton,24 in which the court had held that each taxpayer seeking a refund had to comply with me statutory requirements before sovereign immunity would be waived. The Supreme Court brushed Staton aside by holding simply that Section 26-18-507 did not apply to illegal exaction suits challenging a tax as unconstitutional on its face, nored that the illegal exaction provision was self-execllting,25 and remanded the case to chancery court. Most interesting of the recent cases is

Jacoby v. Arkamas Department of Edllcation,26 which reversed a circuir courr

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judgment mat the state could not be subject to a claim in state court under the federal Fair Labor Standards Act ("FLSA"). The Supreme Court recognized that under the U.S. Supreme Court's decision in Seminolt Tribt lJ. Florida, supra, the Eleventh Amendmem would prevent enforcemem of FLSA claims against a state in federal coun. The Arkansas court, however, quored that section of the FLSA which provides that actions "may be maimained against any employer (including a public agency) in any Federal or State court of competent jurisdiction[.J"27 Despite a number of appellate decisions from other states to the contrary, the Arkansas coun concluded that HiLton v.

South Carolina Public Railways Commission,28 holding that a state agency could be sued in state court on a Federal Employers' Liability Act claim, and Howlett lJ. RoSt,29 holding that a local school board could not rajse state sovereign immunity as a defense to a Section 1983 claim, supported reversal of the circuit court. Justice Robert L. Brown, in a thoughtful opinion for a unanimous court, reasoned that similar cases decided before HiLton, supra, and HowLett, rupra, retained little utility and heJd that the state could not, consistenr wirh the


supremacy clause [0 the federa.l Constitution, refuse to subject itself to the FLSA in its own courts. The Maine Supreme Judicial

CoUrt

reached the opposite conclusion in a similar case. and in a 5-<0-4 decision handed down

this summer, the U.S. Supreme Court upheld its ruling that a state could not be sued in state coun under the FLSA. The high coun's opinion seems to have effectively overruled}acolry. While ir is impossible

7. 8.

<0

prediCt the future course of any coun, the FLSA cases clearly suggest that the Arkansas

Supreme Coun today is less sympathetic to the idea of sovereign immunity than is the U.S. Supreme Coun. 30 The constitutionaJ provision roo plain to be misunderstood seems likely [0 generate litigation for years to come.O

9. 10. II.

12. Endnotes I. SU gmually, Stau Offic~ of Child Support Enftrummr v. MireluU, 330 Ark. 338. 34546.954 S.W2d 907. 911 (1997). 2. Fi"mans fnsurnnct Co. II, Arkansas Stau Claims Commission, 301 Ark. 451, 455, 784 S.W2d 771. 773-74 (1990). 3. On the Claims Commission, su, Ark. Code Ann. § 19-10-201 "rcq. The Claims Commission as an alternative to a judicial remedy has survived due process and equal protecrion challenges. Su, Austin v. Arkan.sas Stau Highway Commission, 320 Ark. 292. 895 S.W2d 941 (1995). The appellants in AUftin, who were challenging the Highway Commission's construction of a guard rail that blocked access to their property, raisal on appeal a separ.ation of powers challenge to the Claims Commission's authority that the court did not decide. Su also, James A. Ross, Jr., "State Immunity llnd the Arkansas Claims Commission," 21 Ark. L &v. 180. 4. SmoJla, "Politics and Due Process Don't Mix: Should the State Claims Commission Be Abolished~," 1986 Ark. L Nom 43; Ross, "State Immunity and me Arkansas Claims Commission," fUpra, at 180-81; Waterman, "One Hundred Years of a State's Immunity From Suit," 2 Ark. L Rrv. 353; Eckert, "Another Decade ofState Immunity to Sui" 1937-1947," 2 Ark. L Rrv.375. Congress waived the United States Government's immunity from suit in 1946 with the Federal Tofts Claim Act. &~, 28 U.S.c. § 921. 5. Su. &aulieu v. Cmy, 288 Ark. 395. 705 S.W2d 880 (1986). 6. NeWlon v. Eloch, 332 Ark. 325. 332. 965

13.

S.W.2d 96 (1995); sec also. Stare v. Swon, 325 Ark. 341, 942 S.W.2d 804 (1996). For more on the historical and philosophical basis of sovereign immunity, su, Smolla, "Politics and Due Process," fUpra at 44--46. Semino" Tribe of Florida v. Florida. 517 U.S. 44 (1996). Rogen v. Uterer, 133 F.3d 1114 (8th Cic. 1998). States and stare officers sued in their official capacity are not persons for purposes of Section 1983. Norfleet v. Arkansas D~partmmt o/Human S~rvices, 796 F. Supp. 1194 (ED. Ack. 1992), ajf'd 989 F.2d 289 (8th Cic. 1993). Ark. Code Ann. § 21-9-30 I. Ack. Code Ann. § 19- 10-305. 5«, Cron v. Arkansas LilJatoek a"d Poultry UtmmisIion. 328 Ark. 255. 943 S.W2d 230 (1997). Page v. McKitdq. 196 Ark. 331. 118 S. W.2d 235 (1938). Thus. the effect of Section 21-9-203, requiring the state to indemnify a state employee for damages causal by good faith, employment related conduct, makes the state the real party in inrerest in a suit against the employee and can invoke sovereign immunity. B~aufi~tI v. Gmy, supra. £quikas~ Corporation v. U"iud Staus Fidelity and Cuacanty Ut.• 262 Ark. 689. 565 S.W2d 125 (1978) (indemnification denioi whe...e state sought no recovery agajnst claimant); Arkamas D~partmmt of Utrm:rivm v. 254 Ark. 102. 491 S. W.2d 602 (1973) (counrerclaim could not exceed amount sought by state); Stau Office of Child Support Enforcemmt v. Miteh~/l, supra (suit to collect wrongfully garnished child support payments barroi); Arkamas D~partmmt of Huma" Snvices II. Srare. 312 Ark. 481. 850 S. W2d 847 (I993) (StaTe could not be made to pay fine and make restiTution); Rob~rts v. Pri~st, 335 Ark. 137.979 S.W.2d 453 (1998) (se«crary of state nOT liable for special master's fees); Arkansas 5lau Highway Commission v. Floke. 254 Ark. 624, 495 S.W.2d 855 (1973) (complaint seeking to enjoin state to commena- condemnation suit "deficient"); Bryam v. Arkansas Stau Highway CommisIion. 233 Ark. 41. 342 S. W.2d 415 (1961) (Highway Commission not subject to writ of mandamus). Fosta v. Arkansas StllU Highway UtmmisIion, 258 Ark. 176,527 S.W2d 601 (I 975); Flak~ v. Arkansas 5rau Highway Commission. 251 Ark. 1084.476 S.W.2d 801 (J 972); Arkamas Stau Highway Commission v. Parrain, 192 Ark. 127, 90

Day".

14.

S.W2d 968 (1936). 15. Arkamas Gam~ and Fish Commission II. Lindsty. 292 Ark. 314. 730 S.w:2d 474 (1987); Utrnmack v. Chalnt",. 284 Ark. 161,680 S.W2d 689 (1984). 16. Commission on Judicial Disciplin~ & Disability v. Digby. 303 Ack. 24. 792 S. W.2d 594 (1990). 17. Arkansas D~parrmmt of Human 5uvicn v. Stau, supra at 488. 18. Tri-B Adv~rlising COmp""} I"c. v. Arkamas Srau Highway Commission, 260 Ark. 227, 539 S. W.2d 430 (1976). 19. To be sure. the court invoked sovereign immunity in Brown v. Arkamas Stau Hrating. Vmrilation, Air Conditi01ling and Rqrig~ratioll Licmsing Board, 336 Ark. 34, _ S.W2d _ (1999), which involved a suit under the Arkansas Civil Rights Act, Ark. Code Ann. § 16-123-101, er "q.. against the state board that had imposal a fine on the plaintiff and revoked his license. But mis was not a close case. The civil rights suit was dearly one against me state, which triggered sovereign immunity and which was also impermissible under civil rights jurisprudence generally. Moreover, the plaintiff appeared ro have an adequate remedy by way of appeal of the board's order. 20. Supm. 21. 333 Ark. 214.969 S.W.2d 169 (1998). 22. 333 Ark. 561, 972 S.W2d 933 (1998). 23. Smighr v. Raglond. 280 Ack. 206, 655 S.W2d 459 (1983). 24. 325 Ark. 341. 942 S. W.2d 804 (1996). 25. s.e. City of Lirele Rock v. Cash, 277 Ark. 494.644 S.w:2d 229 (1982). 26. 331 Ark. 508, 962 S. W2d 773 (1998). 27. 29 USC § 216(b). 28. 502 U.S. 197 (1991). 29. 496 U.S. 356 (1990). 30. See, Aldm v. Main,. U.S. Sup. Cr. No. 98436, June 23. 1999.

Jeff Broadwater IS Senior Counsel for Enrergy Services, Inc. In Lirrle Rock, Arkansas, where he works primarily in public urility regularion. He received his J.D.

from the University of Arkansas and also has a Ph.D. from

Vanderbilt University.


SUPREME COURT ApPROVES NEW LAWYER ADVERTISING RULES

The Supreme Courr of Arkansas has approved, with modifications, changes in the lawyer adverrising rules recommended by the Arkansas Bar Association. Because of the importance of these changes, the new rules are printed below in their entirery.

The new advenising rules were issued by the Supreme Courr on May 6th in a per curiam order. On the same date, the Court approved, with modifications, the petition of the Arkansas Bar Association in regard to the sale of a law practice. There are three per curiam orders involved with the sale of a law practice since (he coun amended Rule 5.4 and Rule 5.6 of the Arkansas Model Rules of Professional Conduct, and added new Rule 1.17. The amendments to lawyer adverrising are to rules 7.1,7.2 and 7.3 of the Arkansas Model Rules of Professional Conduct. The changes in lawyer advertising and the new rules on the sale of a law practice can be found on the Arkansas Judiciary Website: h [(p:l/cOuTts.sta te.ar. uslo pi n= ionsI19990506.htm.

RULE 7.1 COMMUNICATIONS CONCERNING A LAWYER'S SERVICES A lawyer shall nor make a false or misleading communication about the lawyer or the lawyer's services. A communication is false or misleading if it: (a) contains a material misrepresentation of fact or law, or omits a fact necessary to make the sratement considered as a whole

not materially misleading;

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nl .lr~lI111 Ll~}lr III. II SI.lfSllllr Ill!

(b) is likely to create an unjustified expectation abour the results the lawyer can achieve, or states or implies that the lawyer can achieve results by means that violate the rules of professional conduct or other law; (c) compares the lawyer's services with other lawyers' services, unless the comparison can be faccually substantiated; or (d) comains a testimonial or endorsememo Comment: This Rule governs all communications about a lawyer's services, including advertising permitted by Rule 7.2. Whatever means are used to make known a lawyer's services, statements about them should be trmhfuL The prohibirion in paragraph (b) of statements that may create "unjustified expectations" would ordinarily preclude advertisements about the results obtained on behalf of a c1iem, such as the amount of a damage award or the lawyer's record in obtaining favorable verdicts, and advertisements containing client endorsements. Such information may create the unjustified expectation that similar results can be obtained for others without reference to the specific factual and legal circumstances. RULE 7.2 ADVERTISING (a) Subject to the requirements of Rules 7.1 and 7.3, a lawyer may advertise services through public media, such as a telephone directory, legal directory, newspaper or other periodical, outdoor advertising, radio or television, or through written communication.

(b) A copy or recording of an advertisement or communication shall be kept for five years after its last dissemination along with a record of when and where it was used, (c) A lawyer shall nor give anything of value to a person for recommending the lawyer's services, except that a lawyer may pay the reasonable cost of advertisements or communications permitted by this rule and may pay the usual charges for not-for-profir lawyer referral service or other legal service organi1..arion; and may pay for a law practice in accordance with Rule 1.17. (d) Any communication made pursuant to this Rule shall include the name ofat least one lawyer who is licensed in Arkansas and who is responsible for its content, and shall disclose the geographic location of the office or offices of the attorney or the firm in which the lawyer or lawyers who actually perform the services advertised principally

practice law. (e) Adverrisements may include photographs, voices or images of the lawyers who are members of the firm who will actually perform the services. If advertisements utilize actors or other individuals, those persons shall be clearly and conspicuously identified by name and relationship to the advertising lawyer or law firm and shall not mislead or create an unreasonable expectation about the results the lawyer may be able ro obtain. Clients or former c1iems shall not be used in any manner whatsoever in advertisements. Dramatization in any advertisement is prohibited. Comment: To assist the public in obtaining legal services, lawyers should be allowed to make known their services not only through reputation but also through organized information campaigns in the form of advertising. Advertising involves an active quest for clientS, contrary to the tradition that a lawyer should not seek clientele. However, the public's need to know about legal services can be fulfilled in part through advertising. This need is particularly acute in the case of persons of moderate means who have nor made extensive use of legal services. The interest in expanding public information about legal services ought to prevail over considerarions of tradition. evertheless, advertising by lawyers entails the risk of praaices that are misleading, overreaching, or unduly intrusive. This Rule permitS public dissemination of information concerning a lawyer's name or firm name, address and [e1ephone numbers; the kinds of services the lawyer will undertake; the basis on which the lawyer's fees are determined, including prices for specific services and payment and credit arrangements; a lawyer's foreign language ability; names of references and, with their consent, names of clients regularly represented; and other information that might invite the attention of those seeking legal aSSIstance. Questions of effectiveness and taste in advertising are matters of speculation and subjective judgment. Some jurisdictions have had extensive prohibitions against television advertising, against advertising going beyond specified facts about a lawyer, or against "undignified" advertising. Television is now one of the mOSt powerful media for getting information to the public, particularly persons of low and moderate income; prohibiting television advertising, therefore,


would impede the flow of informacion about legal services to many sectors of the public. Limiting the information that may be advertised has a similar effect and assumes that the bar can accurately forecast the kind of information that the public would regard as relevanr. Neither this Rule nor Rule 7.3 prohibits communications authorized by law, such as notice to members of a class in class action litigation. Record of Adverrising Paragraph (b) requires mar a record of ,he coment and use of advertising be kept in order to facilitate enforcement of this Rule. It does not require that advertising be subject to review prior to dissemination. Such a requirement would be burdensome and expensive relative to its possible benefits, and may be of doubtful constitutionality. Paying Others to Recommend a Lavvyer A lavvyer is allowed to pay for advertising permitted by this Rule, and for the purchase of a law practice in accorda.nce with Rule 1.17, but otherwise is not permitted to pay another person for channeling professional work. This restriction does not prevenr an organization or person other than me lawyer from advertising or recommending the lawyer's services. Thus, a legal aid agency or prepaid legal services plan may pay ro advertise legal services provided under its auspices. Likewise, a lawyer may participate in not-far-profit lawyer referral programs and pay the usual fees charged by such programs. Paragraph (c) does no' prohibi, paying reguJar compensation to an assistanr, such as a secretary, to prepare communications permined by ,his Rule. Paragraph (e) of this Rule is designed to ensure that the advertising is nOt misleading and does not create unreasonable or unrealistic expectations about the results the lawyer may be able to obtain in any particular case, and to encourage a focus on providing useful information to the public abour legal righrs and needs and me availabiliry and ,erms of legal services. Thus, ,he Rule allows all lawyer advertisements in which the lawyer personally appears to explain a legal right, the services the lavvyer is available to perform, and the lawyer's background and experience. Regardless of medium, a lawyer's advertisement shouJd provide only useful, factual information presenred in a nonsensational manner.

RULE 7.3 DIRECT CONTACT WITH PROSPECTIVE CLIENTS (a) A lawyer shalJ no' solici" by any form of direct contact, in-person or otherwise, professional employment from a prospective diem with whom the lawyer has no family or prior professional relationship when a significa.nt motive for the lawyer's doing so is the lavvyer's pecuniary gain. (b) No,wi,hsranding ,he prohibi,ions described in Paragraph (a), a lawyer may solicit professional employment from a prospective client known to be in need of legal services in a particular matter by written communication. Such written communication shall: (1) include on the bottom left hand corner of the face of me envelope the word "Advertisement" in red ink, with type twice as large as that used for the nanle of the addressee; (2) only be sen< by regular mail; (3) no, have ,he appearance of legal pleadings or omer official documents; (4) plainly sra'e in capi,al leners "ADVERTISEMENT" on each page of ,he written communication; (5) begin wim ,he sra,emen< ,hat "If you have already retained a lawyer, please disregard this letter"; (6) include the following statement in capi,al lerrers: "ANY COMPLAJNTS ABOUT THIS LETTER OR THE REPRESENTATION OF ANY LAWYER MAY BE DIRECTED TO THE SUPREME COURT COMMITTEE ON PROFESSIONAL CONDUCT, C/O CLERK, ARKANSAS SUPREME COURT, 625 MARSHALL STREET, LITTLE ROCK, ARKANSAS 7220 I"; and, (7) shall comply wim all applicable rules governing lawyer advertising. (c) In death claims, me written commu-

nica,ion permitted by paragraph (b) shall not be sent until 30 days after the accident. (d) Any written communication prompted by a specific occurrence involving or affecting me intended recipient of the communication or a family member shall disclose how me lawyer obtained the information prompting the communication. (e) Even when otherwise permitted by this rule, a lawyer shall not solicit professional employment from a prospective client by written or recorded communication or by in-person or telephone contact if: (1) the prospective client has made known to the lawyer a desire not to be solicited by the lawyer; (2) the solicitation involves coercion, duress, harassment, fraud, overreaching, intimidation, or undue inAuence; or (3) the prospective client is known to me lawyer to be represenred in connection with the matter concerning the solicitation by counsel, except where the prospective c1ienr has initiated me contaCt with the lawyer. (f) Notwithstanding the prohibitions in paragraph (a), a lawyer may participate with a prepaid group legal service plan operated by an organization not owned or directed by the lawyer which uses in-person or telephone contact to solicit memberships or subscriptions for the plan from persons who are not known to need legal services in a particular matter covered by the plan. Comment:

There is a potential for abuse inherent in direct in-person or live telephone contact by a lawyer with a prospective c1iem known to need legal services. These forms of contact between a lawyer and a prospective client subject the layperson to the private importuning of the trained advocate in a direct interpersonal encounrer. The prospective

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This porendal for abuse inherent in direct in-person or live telephone solicitation of prospective clients justifies its prohibition. particularly since lawyer advertising and written communication permitted under Rule 7.2 offer alternative means of conveying necessary information [Q those who may be in need of legal services. Advenising and written communications which may be maiJed make it possible for a prospective client co be informed about the need for legal services, and abom the qualifications of available lawyers and law firms, withom subjecting the prospective cliem ro direct inperson or telephone persuasion thar may overwhelm the client's judgment. The use of general advertising and written communications to uansmit information from lawyer to prospective client, rather than direct in-person or live telephone contact, will help to assure that the information flows cleanly as well as freely. The comenrs of advertisements and communications permitted under Rule 7.2 are permanencly recorded so that they cannot be disputed and may be shared with orners who know the lawyer. This potential for informal review is itself li.kely to help guard against statements and claims that might constitute false and misleading communications, in violation of Rule 7.1. The contents of direct in-person or live telephone conversations benyeen a lawyer to a prospective client can be disputed and are nor subjecr ro thirdparty scrutiny. Consequencly, they are much more likely ro approach (and occasionally cross) the dividing line between accurate representations and those that are false and misleading. There is fur less likelihood that a lawyer would engage in abusive practices against an individual with whom the lawyer has a prior personal or professional relationship or where the lawyer is motivated by considerations other than the lawyer's pecuniary gain. Consequently, the general prohibition in Rule 7.3(a) and rhe requirements of Rule 7.3(b) are not applicable in those situations. But even permitted forms of solicitation can be abused. Thus, any solicitation which comains information which is false or misleading within the meaning of Rule 7.1, which involves coercion, duress, harassment, fraud, overreaching, intimidation, or undue influence within the meaning of Rule 7.3{e)(2), or which involves contact wirh a prospective client who has made known to Advertising Rules Continued. on Page 48


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Laying the Groundwork for Change Louis B. "Bucky"Jones, Jr., took office as President ofthe Arkansas Bar Association June 12, 1999. Now he plans to continue the work others have begun, as well as lay the groundwork for some changes.

â&#x20AC;˘ by Sara Landis â&#x20AC;˘

F

or five months, Sucky Jones has been

helping srudems and working adults in

'/Is the membership ofthe Arkansas Bar Association grows and diversifies, we should focus like a laser beam on ethics and professionalism. "

business and professional fields achieve their goal of anaining a Masters Degree cluough a program which enables the student {O attend

classes at night. and fulfill mher obligations during the daytime hours. Jones is the Director of the Fayetteville Regional Campus of Webster University, a school whose home campus is in St. Louis, but which has a network of more than 70 campuses throughout the United Stares,

Bermuda, Europe, China and Thailand. Webster is onc of the most respected

Universirjes offering M.B.A.s and M.A.s in business studies on extension campuses. We were curio liS about this self-described "legitimate baby boomer," so on a recent stormy Tuesday my editor, my photographer

and myself laughed in rhe face of an impend.ing tornado and traveled the new

scenic Highway 540 to Fayetteville in order to spend an afternoon with the man [ have repeatedly heard described as "caring."

"All my life, I've enjoyed helping people. I like people. I enjoyed helping people when I was in law practice, whether it was a civil matter, or a criminal matter. And what better way to help people than to help them advance their education?" We began our interview in Jones' office, which is tucked in the corner of the spanking clean, newly renovated space that Webster occupies. fu the skies grew increasingly darker, Jones kept up his easy bamer and freely shared humorous anecdOtes abom family and friends. Jones was born in Memphis, Tennessee, on August 12, 1946. He grew up in Forrest City, Arkansas, where his father, a farmer, grew everything from cotton and soybeans to strawberries. That farm, though reflected

I'ol.ll No.l/Somm~f 1999

The ,Irkaosas I,all}!'f

25


uft: Blleky and his wift, Anita, and their two 'om, Carter (kft) 21, and Cliff (/itr right) 24, arc pielllrcd here in jones' office. hue/: Bucky and Anita at tlu Barristers' Ball held in November 1998.

SIDE BAR In a moment of quiet contemplation, a certain irony scruck me.

Upon reading an article wrirten in 1995 abou, Jones, 1discovered cha' in

1972, the year that Jones

received his law degree and entered the private practice of law, laws wefe being broken by

Pr~ident

Richard Nixon. "Watergate shook a 10' of people's faich in govemmem, bur it proved that everyone is accountable, mat this is a nation of Jaws, not of men," said Jones. How

odd cha' he should, 27 years la,er, be entering his presidency of the Arkansas Bar Association at a time

when yet another United States President has lied to the nation. How does Jones feel abo", cha,? "The syscem wo,ked in boch cases! We may agree or disagree with the outcome, but the procedures in

place:

to

resolve these: types of situ-

ations worked."

11

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upen fondly, played a big pan in Jones' decision to become a lawyer. "I worked enough on that farm to know that I didn't want to farm for a living: he laughed. At a young age, he became interested in public affairs, which made him a "weird kid." Going to law school seemed to be a logical extension of that interest. So, after graduating from Hendrix College where he had scudied hiscory and poli'ical science, Jones enrolled at the University of Arkansas at Fayetteville to srudy law. He received his juris dono' degree in 1972. Jones was a private practicing anomey fcom 1972 co 1987 in Forrest City. He spent five years at the smaJl firm of Buder, Hicky and Jones, and then another ten years in general private practice as Louis B. Jones, Jr., Attorney at Law. From 1987 uncil 1990, Jones worked as ,he Senior Staff Atrorney for East Arkansas Legal Services. It was during this time that he served as President of the Sr. Francis County Bar Association, an Association that, under his leadership, in 1990 was given ,he Outstanding Local Bar Association Award by the Arkansas Bar Association. The Benton County Bar Association was also given that distinction when he ~rved as P,esidem in 1995. Perhaps now is the time to glance at Jones' resume and highligh' o,her achievemenrs of his legal career. In 1985 he served as a Special Associate Justice on the Arkansas Supreme Coure. He was appointed by the Governor and served on the Arkansas Crime

Lab Board fcom 1978-1987 and fcom 19931995 served another appointment by the Governor on che Commission for Arkansas Future. He served the Arkansas Bar Associacion as a member of its Executive Council from 1995-1998 while serving as a membe, of ,he House of Delega'es. The "caring" word came up again when Jones' wife, Anita, was asked to sum up her husband. "'Caring. interested in community ... his family and particularly in higher education," she said. "He also has a great sense of humor." It was while serving as board attorney at East Arkansas Community College in Forrest City that this caring man saw firsthand what a college meant co an economically depressed community. "It's like a bea-


Left: At the Ribbon Cutting Ceremony fOr the opening ofthe webster University Campus. Pictured in the crowd next to

Bucky are Marcella Dill, Vice-President fOr Extended Campus Administration at webster University in St. Louis, andJerry Peters, Director ofthe LittLe Rock Metropolitan Campus ofWebster University.

con on a hill. It allows people to bring themselves up by their boot straps," Jones said. "If a community colJege meant that much in a depressed area, how much more meaning and value could a community college have in an area that is growing?"

And so in 1990, Jones left East Arkansas Legal Services to take a job as Assistant to the President of the newly established Northwest Arkansas Community College. He moved to Rogers with his wife of nearly 30 years, who serves as Division Chairperson for Communications and ArtS at Northwest Arkansas Community

College, and his two sons, Cliff, 24, who is working on his Masters in Public Administration at the University of

Arkansas and Caner, 21, also at the University majoring in Transportation and Logistics. He refers to his family as his «greatest accomplishment." What advice would he impart to his sons? "To let their heads and their hearts lead them to do what they really want to do," Jones said. "Doing something you enjoy is the key to being

happy," he said. And what advice did his father, who passed away in Jan uary, impart to him? "He had twO favorites." Jones said, his eyes lit up with sentiment. "One was

Lou Holtz's famous 'Do Right' tule, and the other was Micah 6:8, the Bible verse that man, what is says 'He hath showed thee,

a

good; and what doth the LORiO tequire of thee, but to do justly, and to love mercy, and

to walk humbly with thy God?'" We were abruptly brought from the past to the present by an urgi ng from the National Weather Service to take shelter immediately. Since

Oklahoma City had been violently hit by a tornado only the day before, no one quibbled as we were led [Q the women's restroom of Webster University, Jones' current employer. I'm pleased to say we lived to tell you about this current phase in Jones' educational career as well as his new role as President of the Arkansas Bar Association.

Photo by Dixie Knight Photography

This picture, hanging in Jones' office. is an original watercolor by artist Kathi Spencer. and was taken

from coloc photOgtaphs of a "pick your own" strawberry patch located on the Graham Farm near Madison (St. Francis County) Arkansas. Several of the scenes feature Jones' late father, Louis B. Jones. People came from allover East Arkansas

and the Mid South to enjoy the "fruit of fellowship" of the strawberry patch.

strawberry patch were sold in the

Department Associate, and

mid 1980's.

Sigrid Long (right),

.-.

~L....• • •-"","

The farm and the

Left: Bucky is piceured with his staff. Kim Richardson (left),

~-':"'-=--

Community Relations

---.J Coordinator.

fol. II NI. I/SuII1er 19!9 Tbe Irkml! Llwyer l1


"Bucky has always had his hands in a lot ofdifferent things and has held a lot of positions ofleadership. He is always willing to give of his time for the benefit ofothers. " - Harry Tn/man Moore

As Direccor of Webster, Jones is responsible for the overall operation of the campus, from hiring facuhy, scheduling classes, and management of the campus to making presentations to various groups. Accepting the position with Webster offered Jones an opportunity to take his experience in law, education and life to a higher level; it gave him an opportunity to advance in his chosen field. "Ir's an opporrunity to create, on the graduate level, a program that is as successful as the program r had been involved with on the undergraduate level," Jones said. "And it's another higher education option for people in Northwest Arkansas."

r wondered how Webster felt about their newly acquired Director undcnaking the huge responsibilities that go along with being President of the Arkansas Bar Association at the same time he is starting up a new school for them. "My Staff here makes it possible for me to do this [be President] along with the folks in Sr. Louis. They are very supportive." The excellent staff ro whom Jones refers are Kim Richardson, Department Associate. and Sigrid Long, Community Relations Coordinator. One of Jones' goals for his year as President includes continuing initiatives already begun by Roberr M. Cearley, Jr. "1

Above are the treasured political cartoons adorning one wall in Jones' office. Among others, he has four cartoons signed by President Bill Clinton during various points in his political career and several drawn by George Fisher, a famous Arkansas political cartoonist. Fisher provided the artwork for the cover of this issue of The Arkansas Lawyer.

18

Ue ,lrkllSiJ I,l~]er

101. II II. liS Iller 1!99

would like to continue Bob's initiatives on ethics and professionalism," Jones said. "r want to promote professionalism and high ethical standards for all lawyers, whether they are engaged in business, private practice, government service, education-whatever. As the membership of the Arkansas Bar Association grows and diversifies, we should focus like a laser beam on ethics and professionalism." Another goal has to do with the proposed Judicial Article which was recently passed in the 1999 Legislative Session. In referring to it, Jones said, "I would like CO lay che groundwork for approval by the voters in 2000. Rarely do you have a chance co make such a far-reaching positive change. We need to prepare the membership of the Bar and the public for that change. Hopefully we will modern.ize, streanlline and depoliticize our judicial system," Jones said. "I want to lay the groundwork for mac." Jones is humbled and honored by the confidence the membership has placed in him, and hopes he will be able ro add ro the proud tradition that is the Arkansas Bar Association. In typical Bucky fashion he shrugs his shoulders and laughs as he says, "Hey, I don't expect to change the world chis year-but I hope co make it a little better." I'm sure he will. +


\onn~ tilll )I'I'S

,

Slid ion 1I,'pol't go

F.;lvoriles

Help

Get Involved ~

by Baxter Sharp

Slop

@J

f:;j

RelTesh

Home

w.arkbar.com/publicjnfo.html

1 would like to start om

by manking Gwen

for her year of service, and by congratulating her also for the Golden Gavel Award received by Tim and Paul. Certainly the Chair deserves some recognition for pursuing the project, and

appointing the right people for the task. I expect to continue many of the same projects that our Section has successfully done in the past, such as Disaster Relief,

OUI

newslencr,

Bridging the Gap, the swearing in ceremony, etc. Talso hope to add some new projects which will

August. In particular, I would like to see a team of approximately 20 lawyers working with the juveniles at the Alexander DYS facility. I foresee menroring and mock trials as part of our service there. I have discussed this project this past year, but have not received sufficient volunreers to implement the project. I would like to encourage all of the members of our section [Q find out about the good works that we do, the fun that we have, and get involved. 0)

be discussed at our Executive Council Retreat in

Thanks by Gwendolyn Hodge

Visit the Arkansas Bar Association at

www.arkbar.com and get the NEW Senior Citizens/Caregivers Guide Thanks. Baxter. for sharing your column and giving me an opportunity to say thank you. To say thank you to everyone who made this year

the success that it was. To say thank you to the Executive Council of the YLS: Tim Cullen, Thomas Smith, Charles Kester, Eric Hughes, David Sterling, Scott Zuerker, Paul Dumas, Chris Thyer, Cindy Thyer, Robert Thompson, III, Todd Greer, Jeff Harrelson and Baxter. To say thank you to the committee chairs/co-chairs: Paul Dumas and Baxter Sharp, Disaster Relief; Cindy Thyer and Jason Hendren, YlS Newsletter; Ed Slaughter and Colette Honorable, Membership; David Sterling, Law Week; Tim Cullen and Paul Dumas, Caregivers/Senior Citizens Handbook; John Meyers and Todd Wooten, Btidging the Gap Seminar; Ainsley Lang and Betsy Meacham, Annual Meeting Tennis Tournament; Thomas

Smith and Robert Thompson, Annual Meeting Social Event; Eric Hughes and Rodney Moore, Swearing In Ceremony; and their committee members. Thanks for the opportunity to say congratulations on winning (he Golden Gavel Award to Tim Cullen and Paul Dumas, co-chairs of our showcase project, the CareGivers/Senior Citizens Handbook. Thank you! It has been great fun working with each of you this year. Congratulations to Tim and Paul on winning the Golden Gavel Award for the Caregivers/Senior Citizens Handbook. A job well done. For those of you who do not have a copy, be sure and get a copy. Baxter, I look forward to working with you this year. I know that your year as Chair of the Young Lawyers Section will be productive and

fun. Again, a sincere thank you

to

each of you.

0)

ALSO: The latest in CLE • The Table of Contents for Handbooks and Systems

• Pamphlets available to the public

• What's New and Noteworthy in your Association

• Member Benefits and coming in August arkansasfindalawyer

101. H!o.l/Sommer 1999

The ,Irkansas LaWler

29


RECENT DEVELOPMENTS IN SEXUAL HARASSMENT

LAw

"How THE

RULES OF

THE GAME HAVE CHANGED'" by Shawn D. Twing'

"In Faragl"r and Eller/h, lh, Supmn' Court ~mphllJiud thnr th~ primary objutiv~ of7itk VII is to prtvmt discrimination from occumOng and that Ih~ stntul'e is tksign~d to ~ncourllg~ the CTfotioll of I1nti-hnrllJIment policia and t/fietiVl grironnu mechanisms. .. Justice Benavides of the Fifth Circuit Court of Appeals, quoted from Williamson v. lh, City0fHouslon, 148 F.3d 462, 466 (5th Cir. 1998). I. Introduction The year 1998 will, without a doubt, be recognized as one of the most significant years for sexual harassment law since such claims were first recognized by the United States Supreme Court in 1986. 2 It is interesting co nore that, while district and appellate court decisions deciding various legal issues governing sexuaJ harassment cases fill volumes of federal and state reporters. Supreme Coun has issued relatively few decisions defining with any specificiry- exaC[Iy what sexual harassment is and what the legal rules ofliabiliry are.' In fujrness ro me CoUrt, the absence of "hard and lilSt" rules exiS[ in the law, at least in part, by virtue of the nature of sexual harassment for which there has never been a nacional consensus. onetheless, the Coun has hiS[orically issued opinions mat established broad legal principles that left the "details" of what sexual harassment is and when it is actionable to lower courrs. However, in 1993 the Court issued its opinion in Harris v. Forklift Sysums. Inc.,4 in which it set out specific factors to be used in determining whether conduel rising to the level of actionable discrimination had occurred. 5 This past year, the Court went fi.Jrther and issued three opinions that specifically address and resolve, in some detail. issues concerning both the scope of sexual harassment claims and when liabiliry will attach. Taken

me

~o

fbe ,Irlmlll.a"lrr

lotll !o.l/Sommer 1999

together, these and other opinions have substantially changed not only the "rules of me game: but they also clarified who the "players"are. In order to fully appreciate the impact of the Court'S recent decisions, one must view them in the context of the "big picture" of sexual harassment law which has developed, much like a chain nove.!, over the past two decades. As will be illustrated below, some principles have been radically altered while others remain unchanged. The purpose of this Article is see these new decisions in context of me "big picrure" so that employers who will be impacted by them can better assess how the changes in this area of the law affecrs them and what steps they should take to limit their legalliabiliry. II. The Players

A. E1IIployers- Who May be Sued for Sexual Harassment! Title VII of the ivil Rights Act of 1964 ("1itle VII") was enacted to eradicate certain forms of discrimination with respect to both employment related decisions affeC[ing employees, as well as the conduct that affects the work environment of employees. To this end, section 2000e-2(a)(I) of Title VII provides that: (a) Employment Practices It shall be an unlawful employment practice for an ~mploy~r(1) to fail or refuse to hire or to discharge any individual, or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race. color, religion, sex or national origin ... (emphasis added). Given the plain language of me Act and its acknowledged purpose, one would expect that the prohibitions and remedies applicable in these cases would apply solely to "employers," i.~. persons or emities mat engage another person to perform services pursuam ro a comract of hire in exchange for the payment of wages. 6 However, secrion 2000e(b) defines "employer" to mean: a person engaged in an industry affecting commerce who has fifteen (t 5) or more employees for each working day in each of twenty or more calendar weeks in the current or preced.ing year and any agent of such person ... The phrase "any agenr of such person [meaning 'employer']" has caused a split

among federal courtS as to whether individual managers and supervisors and other decision makers who, by their acrs and/or omissions violate Tide VII, can be held personally liable. The Supreme Court has not directly addressed this issue; however, me majority view is that Tide VII dO~J not impose individual liability upon supervisors or managers who violate the Act by rneir action or inaction} For example, the Fifth Circuit Court of Appeals has held mat the term "employer" does not include supervisory or management personnel; rather, the term only applies to those "who possess traditional righrs of employers such as hiring and firing." &~ Gram v. Lon~ Slar Co., supra, and Garcia v. Elf A'och'm N. Am~rica. 8 Consequendy, unless the individual manager herself or himself employs fifteen (J 5) or more employees and possesses me aurnoriry to hire and fire the plaintiff. s/he will not meet the starutory definition of employer; hence, no lide VlI liabiliry will attach to them individually. The Eighth Circuit Court of Appeals has not completely followed the majoriry rule respecting individual liability. In Hall v. Gus Construction Co. ,9 the court held that a foreman was personally liable because he knew of the harassing incidents but failed to investigate or otherwise take remedial action. The courr's holding in Hall represenes a broader more liberal construction of the definition of employer. According to me court in Bak~r v. Suwarr Broadcasting Co. ,10 a liberal construction to the term should be given in order to effectuate the policies of lide Vll. Whether me Eighth Circuit will continue to impose or broaden individual liabiliry- remains to be seen. However, the weight of authority in other circuits is clearly going the orner direction, which could cause the court to reconsider irs previous holdings. Of course, conduct which constitutes a violation of Tide VII, especially sexual harassmem, will violate other laws such as state anti-discrimination statutes and state common law prohibiting assault, banery, invasion of privacy, imenrional infliction of emotional distress and defamation for which a manager or supervisor can be held individually liable. Moreover, a manager or supervisor may also be liable in some states for their negligence in hiring or retaining another employee who violates the Act and causes the plaintiff/employee harm. Assuming that the purporred employer is "engaged in an industry affecting com-


mere<," ir will nor be liable under Tide VII unless ir employed fifteen (15) or more employees for the requisite number of weeks. 11 The issue then becomes how do courts count number of employees for derermining whether Tide VII applies co a particular employer. This issue was resolved by the Supreme Court in Walurs v.

me

MtlTopolitan Educational Emtrprisa. Inc. 12 In Waltn>, the Coure adopted rhe "payroll method" of calculating the number of employees an employer has during any specific work week. In using the payroll method. a coure merely asks whether an employment relationship existed between the employer and employee during the specific work day in question. 13 As opposed co "campe-osacioo" method to calculating an employer's number of employees, when using the payroU method it dots not manee whether the employee actually performed any work or received compensation in reference co the particular workday. Rather, a court will simply look to see if che individual was listed on the employer's "payroll" records, which were accepted by the Court as a readily available means of determining whether an employment relationship berween the person and che company existed. 14 As a practical matter. the WaLters opinion will have limited application as to whecher an employer will be covered by Tide VII. However, small employers should keep a close eye on their payrolls, especially those employers who are engaged in seasonal business, to avoid being inadvertently brought within the Act's reach. The long range implication of the WaLttrs opinion for most employers involves the Civil Rights Act of 1964. 15 This Act allows plaintiffs who sue under Title VII to recover compensacory. and in some cases, punitive damages in addition to back pay and other traditional elements of recovery. However, the Act limits the total amounr of compensatory and punitive damages that may be awarded by virtue of Statutory "caps" on those elements of recovery. The caps are progressive in chat the amount of the cap is determined by the number ofemployees che employer has in its employ.16 The caps increase in increments of $50,000 and $100,000. The Supreme Court will undoubtedly adopt the Waltn> payroll method of calculating an employer's number of employees for determining not only Tide VII coverage, but also to determine the applicable staturory cap. Consequently, employers who maintain

me

"stale" payroll records could unwittingly increase their exposure to liability should suit be filed against chern. B. Employ...- Ino is Entitkd to Sue for SeXUllI Harasnnent! In order to bring a TItle Vll action for sexual harassment, the complainant must be an employee of the defendant. Though extremely unhelpful in irs description, Tide VlI defines the term "employee" to mean, "an individual employed by an employer [except certain elected and nominated public officials]."17 On its face. the statutory language does not include third parties such as vendors, customers and other members of the public. Not surprisingly, the Supreme Court has adopted an approach to Title VI I that extends its protection only to persons who have either sought, possessed or currently possess an employment relationship with the employer. Su '.g., Robimon v. Sh.1I Oil Co., 117 S. Cr. at pp. 846-47. However, an employer's relationship with so-called "independent contractors" is a liability pitfall because the faCtual circumstances surrounding the engagement and performance of a contractor relationship with a third parry may result in a finding by either the EEOC or a trial court that an employment relationship exists with that parry for purposes oflitle VII coverage and liability. To assist employers in determining whether a person working for them is an "employee," the EEOC has adopted a list ofsixteen noninconclusive or conclusive factors ro consider. 18 The EEOC's guidance on this issue stresses the faCt mat determinations of whether an "employment" relationship exists will be made on a case-by-case basis and that none of the preceding factors is controlling. Consequently, simply having a person who provides services co the employer sign a COntracc as an independent contractor will not be conclusive or prevent further analysis. Moreover, the EEOC has also caken me position thac, even though the employmenr relacjonship is reviewed on a case-by-case basis, a firm who hires contract workers "typically qualifies as an employer of the remporary employee during the job assignment, along with the placement ageney."19 Finally, the most recent development in sexual harassment law in reference to who may bring a Title VII claim againsc an employer was the Supreme Coun's adoption of so-called "same sex" sexual harassmenr claims. In Onca/t v. Sundowfur Offihort

Snvica, Inc.,20 me Court addressed the issue of whether an employee who is allegedly sexually harassed by a manager of the same gender can bring a claim againsc the employer under Tide VII. Before Oncale, same-sex cases created a variery of conflicting decisions within the lower federal circuits. For example, the Fifth Circuit, where the Oncale case had originared, had held that same sex cases were not actionable under Tide VII. Garcia v. ELF Atodmn N. Am. 21 Other circuits had held that such cases were actionable only if the plaintiff could prove the purported harasser was homosexuaJ. Sf!( Mc Williams v. Fairfax County Board of SuptrvisOrr,22 compart with, Wrightson v. Pizzo Hut ofAJ1I"ica. 2J Conversely, other circuits held thac same sex cases were actionable like any other sexual harassment case: brought under Tide VII. Do. v. &lleville. 24 However, in deciding che issue. che CoUrt observed that: If our precedents leave any doubt on the question, we hold today that nothing in Title VII necessarily bars a claim of discrimination [i.e. unlawful harassment] "because of . . . sex" merely because the plaintiff and defendant (or the person charged with acting on behalf of the defendant) are of the same sex. 2S Interestingly, in reaching its decision, the Supreme Court expressly adopted an approach to the interpretation of litle VlI which expands the scope of the Act significantly beyond Congressional intent in passing the statute. Specifically, the Coure observed: We see no justification in the statutory language or our precedents for a cacegorical rule excluding same-sex harassment claims from the coverage ofTide VI I. As some courts have observed, male-on-maJe sexuaJ harassment in the workplace was assuredly nOt the principle evil Congress was concerned with when it enacted TItle VII. But statucory prohibitions often go beyond the principle evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed. 26

To some, this language may be viewed as nothing more than an esoteric exercise in the jurisprudencial method used by the Court to interpret Statutes when it decides cases, which presumptively is of little concern to non-lawyers. However, this passage

liL II b.l/S'111t 1m Ue IrlmlJ Liwjlr II


is a key elemem in understanding the future of Tide VII litigation. Having shirked the limitations, if any, of Congressional iment, the Court has freed itself to expand the scope of Title VII to virtually any noxious conduct in the workplace, so long as the conduct in question is a "reasonably comparable evil." As a result, harassmenr on the basis of characteristics such as sexual orientation may eventually state claims under the Act. See e.g., Price Waterhouse v. Hopkins27 and Doe by Doe v. City of Belleville, !II. 28 (discrimination and harassment based upon the employee's expression of femininity and masculinity). C. Purported Harassers- U7ho Can Get an Employer Sued? Courts have unanimously held that employers have a duty to protect their employees from unlawful harassment whether the purported harasser is a coemployee or non-employee. See e.g., Jarman v. City ofNorth Laki1. 9 (the environment in which an employee works can be rendered offensive in an equal degree by the acts of supervisors, co~workers or even strangers to the work place). Stated simply, non-employees can subject an employer to Title VII lia-

Law Offices

of Gary Green announces the association

of Vicki Fewell and Scott Scholl

biliry for sexual harassment the same as their employees. This is referred to as "third-party" sexual harassment. Thirdparty sexual harassment occurs when a third party non-employee is the alleged harasser. Such persons include customers, clients, independent contractors, vendors, or other members of the public. On this issue, the EEOC has taken the position that: An employer may also be responsible for the acts of non-employees with respect to sexual harassment of employees in the work place, where the employer (or its agents or supervisor employees) knows or should have known of the conduct and fails to take immediate and appropriate corrective action. 29 C.ER. § 1604.11(a). Examples of third-party harassment include: l. Harassing conduct precipitated by a residenr of a home for individuals with developmental disabilities. Crist v. Focus Homes, [nc., 122 E3d 1107 (8th Cir. 1997) (the resident harassed employees of home by pulling their clothing, looking down female employee's shirts, grabbing the private body parts of both male and

Ms. Fewell, formerly with the Arkansas Attorney General's office, will handle administrative proceedings, nursing home, family law, medical negligence and personal injury litigation.

Mr. Scholl earned his J.D. at the University of Nebraska in Lincoln,

female employees and committing other physical assaults on them). In Crist, the employees complained of the resident's behavior but management rook no action on meir behalf. 2. A female employee who was harassed by customers and other members of the public when required to wear a revealing "bi-centennial uniform" while working in me lobby of the employer's office building. While wearing the uniform, plaintiff was subjected to repeated propositions and endured lewd comments and gestures. EEOC v. Sage Realty Corp., 507 E Supp. 599 (S.D.N.¥. 1981). 3. A female black-jack dealer subjected to incidents of verbal abuse and lewd comments by male patrons at casino. Employee complained of the incidents, but employer took no remedjal action upon her behalf. Powell v. Las Vegas Hilton Corp., 841 E Supp. 1024 (D. Nev. 1992). 4. Employee of City subjected ro sexual harassment by City Alderman. Jarman v. City ofNorth Lake, supra. City delayed five months before responding to the employee's complaints. Court ruled the employer took toO long to respond so as to avoid Tide VII liability.

Finally, an employer may be held liable for gender discrimination when an employee is denied a job opportunity or benefit as a result of preferential treatment given by a manager or supervisor to another employee who submits to the sexual advances of the employer and/or its agent. On this point, the EEOC guidelines say that: Where employment opportunities or benefits are granted because of an individual's submission to the employer's sexual advances or requests for sexual favors, the employer may be held liable for unlawful sex discrimination against other persons who were qualified for but denied that employment opportunity or benefit.

and served on the Board of Directors

for the Nebraska Chapter of the ACLU. He will handle personal injury and medical negligence litigation, and family law.

l1 The ,Irkansas Lawler

fn!. l·I,Yn. l/Snmmer 1999

29 C.ER. §1604.II(g)(l998). Further, giving preferential treatment to those who submit to their sexual advances creates a hostile work environment that adversely affects the motivation and work performance of other employees who find the conduct offensive. However, in 1990 the EEOC issued a policy statement which outlines a general rule which states that preferential treatment based upon a consensual


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romamic relationship is not prohibited by Title VII. 5.. also, Taken v. Oklahoma Corporation Commission 30 (a supervisor's promotion of his paramour solely because of their romantic relationship does not violate Title VII because with respect to this individual plaintiffs/he was in the same position as omer men and women due to their lack of a special relationship with the supervisor).

Ill. Tbe Rules

A. Basu: Definition ofSexual Harassment Remains the Same The basic definition ofsexual harassment, as articulated by the EEOC, and universally adopted by federal and state courts, has not changed. According to the EEOC, [u]nwelcome sexual advances, requests for sexual favors, and omer verbal or physical conduct of a sexual nature constitutes sexual harassment when: (I) submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment, (2) submission to or rejection of such conduct by an individual is used as me basis for employment decisions affecting such individual, or (3) such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an imimidating, hostile or offensive working environment. 29 C.ER. ยง 1604.1 1(a)(1996). The basic element involved in any sexual harassmem claim is that the conduct complained of is "unwelcome." However, the faCt that sexrelated conduct was voluntary in the sense mat me complainant was not forced to participate against his/her will is not necessarily a defense ro a sexual harassment suit. "Th~ co~ct il1quiry is wluthu th~ complnil1ant by hu conduct indicaltd that th~ alkg~d somal advanca ~r~ un~kom~, not whuh" h" participation in saual [activity} was voluntary. .. M~ritor Sav. Bank, FSB v. Vinson) I In determining whether sexual harassment is unwelcome, courts consider whether the employee solicited or incited the conduct and whethet the employee regarded the conducr as undesirable or offensive. For example, in Gross v. Burgra./f Construction Co.,32 the plaintiff contended that she was subjeaed to sexual harassment by her male supervisors who used vulgar language and made demeaning remarks about her at work. Upon reviewing the evidence, which included proof of her active participation in such

II

Ue ,Irkmll Li~]rr

111.11 NI.l/S.II/r 1199

conduct, the court found that the plaintiff did not view the supervisors' conduct as unwelcome. 33 B. Sexual Harassment Can Be Labekd As

Being One

Of Two Forms

From the forgoing definition of sexual harassment, one may discern the two basic types of actionable sexual harassment which have been applied by courts, namely the socalled quid pro quo harassment' claim and hostile work environment harassment claim. Su Jonn v. Climoll. 34 Quid pro quo is a Larin phrase which translates "what for what." The phrase denotes mutual consideration of a bargain such as something given in exchange for something else. As the name implies, quid pro quo sexual harassment occurs when: [slubmission to or rejection of ... [sexual] conduct by an individual is used as a basis for employm~nt decisions affecting such individuals. 29 C.ER. ยง 1604.11 (a)(2). Basically, the conduct sought to be prohibited is an employee with discretionary authority making acquiescence to his/her sexual advances a term and condition of employment, or making an individual's refusal to acquiesce a basis for an employment decision. The elements to a quid pro quo claim are: I. The employee was 3 member of a protected class; 2. The employee was subj<cted 10 unwelcome sexual harassment in the form of sexual advances or requests for sexual favors; and 3. Either the employee's submission ro the unwelcome advances was an express or implied condition of receiving job benefits or the employee's refusal co submit to a supervisor's sexual demands resulted in a tangible job detriment. In the typical qllid pro qllo sexual harassment case, supervisors rdy upon their apparent or acยฃual authority to extort sexual consideration from the employee. Ewald v. \~rn.k Family Food Corp., 878 S.W.2d 653 (Tex. App. - Corpus Christi 1994). The objectionable character of quid pro quo sexual harassment is the abuse of authority on the pan of the employer and/or itS supervisors. On this point, the court in Ewald observed that: In [quid pro quo] cases, supervisors use the means available to them to accomplish the prohibitive purpose-their actual or apparent authority to hire, fire, discipline, or promote. Because supervisors act within ar least the

apparent scope of authority entrusted to them by the employer when they make employment decisions, their conduct can fairly be imputed to the source of that authority, the company. For this reason. in such cases, the employer may be held strictly liable for the conduct of supervisory employees having actual or apparent authority over hiring, advancement, dismissal and discipline under the theory of respondear superior. Id.; JU also, Burlington IndllSrrits, Inc. v. Elkrrh, infra. "Hostile environmenr" sexual harassmenr involves no tangible job benefit or detriment. In this instance, sexual harassment occurs when an employer subjects an employee to sexual innuendos, remarks and/or physical acts which are unwelcome and so offensive as to "alter the conditions of the employee's employment and create an abusive work environment." This form of sexual harassment was first recognized as sex discrimination actionable under lide VII in a case involving a bank. Mmtor Sav. Bank, FSB v. Vinson, supra. In M~rjtor, the Supreme Court concluded that: Sexual misconduct constitutes [prohibited] "sexual harassment" whether or not it is directly linked to the grant or denial of any economic quid pro quo, where such cOl1duct has tlJe purpou or 4fict ofunrMsol1abiy inurfiring with 0.11 individua/i work pnfonnanct or crttiling an intimidaril1g, hostik or offinsiv~ worldl1g tnvironmtnt. Sexual harassment based upon the exisrence of a hostile work environment includes five elements: I. Plaintiff belongs to a protected class; 2. The Plaintiff was subjected to unwelcome sexual harassment; 3. The harassment complained of was based upon sex; 4. The harassment complained of affected a term, condition or privilege of employment; and 5. The existence of respondeat superior liability. Su Crist v. Focus Homes, Inc. 35 0 area of sexual harassment law has created more confusion than the issue of what constitutes a hostile work environment. This confusion is compounded by the fuCI that neither courts nor the governing agencies have developed a dear-cur definition of whar kind of behavior creates a hostile work environment and what degree of severity is necessary to make the work cnvironmenr


unlawful. In Harris v. Forklift SystffllS, Inc., supra, the Supreme Court observed that a hostile work environmem is nm created by mere unerances ofepithets which engender offensive feelings in an employee. On the other hand, the work environmenr does not have to he so abusive or hostile so as [0 "seriously affect the plaintiff's psychological well-being or leave him/her to suffer injury" before liability will arise. Therefore, the line between liability and non-liability lays somewhere in the middle. In Harris, the Court established a [Wostep process for evaJuating a claim of sexuaJ harassmenr on the basis of hostile work environment. First, the complaining employee must su.bj~ctivdJpN'Uiv~ the work environment as being abusive or hostile. Second, the conduct must he severe or persuasive enough so as (0 create an obj~ctjv~1y hostile or abusive work environment, which is co sayan environmem that a reasonable person would find hostile or abusive. Factors in making this determination include: 1. The frequency of discriminatory conduct; 2. Its severity; 3. Whether ir is physically threarening or humiliating; 4. Whether it unreasonably imerferes with the employee's work performance. 36 While the effecr on the employee's psychological welJ-being is relevant, a finding thar an employee's psychological wellbeing did not sustain any injury will nOt preclude the finding of a hostile work environmem. The conduct complained of in Harris involved the behavior of the company's presidem and is instructive as to what conduct rises to the level of actionable sexual harassmemo According ro the Court's opinion, the president engaged in the following behavior: I. Told the plaintiff (who was a woman) on several occasions in the presence of other employees "you are a woman, what do you know" and "we need a man as the ren tal manager" and at least on one occasion called her a "dumb ass woman." 2. On one occasion, the president suggested in from of other employees that he and the plaintiff "go to the Holiday Inn and negotiate [her] raise." 3. The president occasionally asked the women employees to remove coins

from his front pocket and threw items on the floor and directed the women employees to pick them up. 4. The president often engaged in comments containing sexual innuendos and made comments concerning his female employees' clothing. The "final straw" occurred when 5. the president, who was commencing on the plaintiff's success in arranging a deal with a cuStomer, stared in from of orner employees "what did you do, promise the guy ... some [sex] Saturday night?"37 In a hostile environmenr case, the conduct at issue is evaluated as a whole in the context of all relevant circumstances. However, the conduct does not have to be explicitly sexual in nature if it is sufficiently abusive so as to place members of one sex at a disadvantage in the workplace.3 8 As a result, in a hostile environment claim, a plaintiff may be required to show that a "pattan or practiu" of harassment existed. Set t.g.. Winsor v. Hinckky Dodgt, Inc.,3' in which plaintiff was constantly harassed by co-workers who subjected her to physical assaults, lewd nicknames, vulgar notes/drawings and the spreading of rumors, which were true, that she had an affair with the sales manager of the srore. The absence of tangible job detriment requires a commensurately higher showing that the sexually harassing conduct was pavasive and destructive to the working environmem. Two types of cases fail to meet this standard. The first class involves the socalled single incident case. 40 An example of this type of claim is illustrated in Jones v. Clinton, supra. In jonts, the plaintiff, who was a state employee, alleged that then Governor of Arkansas Bill Clinton invited her to a hotel room whereupon he allegedly opened his pants and invited her to engage in oral sex. She refused and later sued when her name appeared in an expose of Mr. Clinton describing the hotel incident. In rejecting her claim, the district court ruled that, even though such conduct is boorish and offensive. this single incident was not so severe and pervasive as to alter the terms and conditions of her employment, nor was it one of those "exceptional cases" in which a single incidem of sexual harassment, such as an assault, is deemed sufficient. See e.g., Crisonino v. New York City Homing Auth. 41 (plaintiff's supervisor called her a "dumb bitch" and shoved her to the floor causing her to sustain physical injuries); Creamer v. Laidlaw Transit, Inc. 42 (plaintiff was physi-

cally grabbed by the wrist and forcibly pinned to a pool table by a co-worker); Tompka v. S,akr Corp.43 (plaintiff was subjected to a rape in addition to vulgar and abusive language and offensive remarks concerning her body); Campbt" v. Kansas Stolt Ulliversiry44 (plaintiff was struck on the buttocks with a hoard by supervisor who also told her sexually explicit jokes). Except for those extreme cases involving physical assaults, employees who have experienced nothing more than sporadic boorish or offensive behavior will not be entitled to pursue a sexual harassment claim pursuant to Tide V1I because such conduct cannot reasonably be expected to alter the terms or conditions of the employee's employment. On this point, the Supreme Couer has stated specifically that the "conduct must be extreme to amount to a change in the terms or conditions of employment." Faragher v. City of Boca Raton, supra. Given this high legal standard. some lower courts have raised the amount of proof necessary to state a sexual harassment claim. The following cases provide an example of this trend: 1. Plaintiff's sexual harassment claim based upon five separate incidents over a 16 month period was rejected even though the conduct included requests by her co-worker for plaintiff to undo her tOP blouse button, his looking down her shirt and making comments about "that time of the momh." The Court found that the conduct was boorish bur not actionable. Sprague v. Thorn Amaicas, Inc., 129 F.3d 1355 (10th Cir. 1997). 2. Plaintiff's proof of 8 to 10 sexually explicit drawings coupled with jokes of a sexual nature and conversations at work concerning a strip club was held to be insufficient to rise ro the level of actionable sexual harassment. Skouby v. Prudmtiallns. Co. ofAm"ica, 75 EE.P. 748 (7th Cir. 1997). 3. Female plaintiff who was given a Bible "booklet" titled "Spirit of Jezeble" by her supervisor after she went around him and reported a problem to her supervisor's superior was found not to have stated a sexual harassment claim even though she may have been offended by the publication. Wtlkr v. Citation Oil 6Gas Corp., 84 F.3d 191 (5th Cir. 1996). 4. A supervisor's comments that female customers were "bitchy" and "dumb," as well as his gawking at female co-workers was deemed inappropriate bur not severe and pervasive enough to

fol. II SI. 1/81mler 1199 He ,Irkusll LIWW 15


rise

[0

the level of sexual harassment.

G'~ason II.

Mesirow Financial Ins., 118

F.3d J 134 (7th Cir. 1997). IV. Required Adjustments to the New Game

A.

The

Two

Theories

of Sexual

Harassment Have Merged It is in the application and interaction bet\veen these twO legal theories of recovery that the most signiflcam changes in sexual harassment law were forged by the Supreme Court in Faragher v. City o/Boca Raton45 and Burlington Industries, Inc. v. Ellerth. 46 In those cases, the Court expressly defined for the first time the legal rules governing employer liability for unlawful harassment committed by a manageriaJ or supervisory employee. The Court in Ellmh held that an employee subjected [0 quid pro quo sexual harassment in the form of threats [0 deny her job benefitS for refusing her supervisor's advances couJd pursue a Title VII claim even though she did not suffer any job detrimenr. In reaching its decision, the Court did not discard the "quid pro quo-hostile work environmenr" distinction; rather it adopted these labels as legal guideposts in determining threshold issues raised in any particuJar case involving allegations of sexual harassmenr discrimination. "We do not suggest that the terms ... are irrelevant to Title VII litigation. To the extenr that they iUusuate the distinction bem'een cases involving a threat that is carried out and offensive conduct in general, the terms are relevant when there is a threshold Iquestion ofliability]."47 However, the terms are not controlling for determining liability for supervisory harassment. According to the Court, if a supervisor engages in quid pro quo harassment and the employee suffers job detriment, strict liability will apply. Id. at 14. However, if no job detriment is suffered, the plaintiff can still recover if the supervisor's conduct created a hostile work environment. In Faragher. the plaintiff was a life guard for the city of Boca Raton who was subjected to continuous harassment from her male supervisors. She described her working conditions as a "sexually hostile work environment" which included physical touching, lewd commentS and requests for sex and threats from her supervisors. In this case, the Court determined that employers are vicariously liable for the sexual harassment committed by supervisory employees. Specifically, the Court held that. "an

16

Tbr ,Irkansas L1IITrr

lol.llllo.l/Sommer 1999

employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee." The Court also adopted an affirmative defense for employers. This defense is discussed more fully below; however. the central feature of the defense is a requirement that employers take steps to prevent, as well as remedy, unlawful harassmenr. 48 At minimum, this requires employers to implement anriharassmenr policies and design effective reporting procedures. 49 Failure to take these minimum steps will result in liability without the benefit of any defense. For example, in Faragher, me city had implemented an anti-harassment policy and reporting procedure; however, the proof revealed that the life guard employees were nOt informed of or given a copy of the policy. Moreover, the Court observed that in addition ro its failure to disseminate itS policy, the city also failed to monitor itS supervisors and itS reporting procedure did not include any assurance that the harassing supervisors could be bypassed. Consequently, the Court found as a matter of law that the city did not act reasonably in taking steps to prevent sexual harassment; hence it could not take advantage of the affirmative defense. so B. Levels of Liability In light of the Supreme Court's opinions in Faragher and El'~rth there are four "levels" of employer liability. The distinctions are based upon: (1) the type of hatassment at issue and (2) the status of the purported harasser. The following chart summarizes the new liability rules governing sexual harassment cases: I.Quid Pro Quo Harassment .. Supervisor/Management Participation ... Adverse AqioD !lnd/or s\lb!J)is~iQn by employee = Strict Liability 2.Quid Pro Quo Harassmem (Which rises to rhe level of a hostile work environmem) ... Supervisor/Management Participation ... NQ advnK agio" and/or submiMioo .. Vicarious Liability 3. Hoslile Work Environment + SUlX'rvjsorlManagemeOl Pmicjp:ujon .. Vicarious Liabiliry 4. Hostile Work Environment + Co.Employtts and/or Thjrd Pauics .. Prompt Remedial Action

Unlike cases involving managerial sexual harassment, cases involving harassment committed by co-workers and presumably third parry non-employees are still governed by the previous "knew or should have known standard." Williamson v. City of

HOltSlOn. 51 In Williamson, the employee was being harassed by a co-worker; however, a management employee knew of the harassment and did noming to StOP or repon it. The coun held mat the manager's knowledge of the harassment was imputed to the Ciry even though the manager had no direct supervisory control over the plaintiff or the purported harasser. However, because the harassing conduct was committed by a coworker, vicarious liability did noc apply. C. New Defense to Vicarious Liability The Supreme Court's opinions III Faragher and Ellerth not only established vicarious liability for sexual harassment committed by supervisory employees, bur they also provided a limited defense to employers in such cases. To take advantage of this defense. employers must plead and prove the following t\yo elementS: I. The employer exercises reasonable care to prevent and promptly correct any sexually harassing behavior; and 2. The employee unreasonably wls to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. There are two parts of this defense: (l) the steps to prevent and (2) the steps to "cure." These partS can be broken down as follows: Reasollablelless ofthe employer's conduct. I. To prevent harassing conduct in the work place. I. Adopt policy prohibiting work place harassment II. Implement a reporting procedure iii. Communicate both to all employees (training, notices, etc.) IV. Manager's conduct in the workplace v. Attitude of management towards policy and reponing procedures vi. Track record of policy enforcement vii. Record Keeping 2. To "cure" incidents of harassmenr. i. Prompt action ii. Investigation iii. Compliance with policy and procedure iv. Effective remedial action v. Reasonable follow-up vi. Proper documentation vii. Respect confidentialiry


Reasonableness oftbe employee's conduct. i. Compliance with company pol-

'CY Compliance with reporting procedure iii. Cooperation with employer iv. Assistance in investigation v. Compliance with remedial measures vi. Personal conduct at work vii. Mitigate harm/damages In light of the new defense granted ro employers by the Supreme Court, an interesting line of cases is developing at the district COUft level. See e.g., {ndest v. Freeman Decorating, Inc., 164 F.3d 25 (5th Cir. 1999) (employer who promptly and effectively responds to sexual harassment complaint not liable vicariously). In response to the Faragher and El/"th decisions, some district courtS have placed what can be viewed as a higher burden upon employees ro use their employers' anti-harassment policy enforcement and reporting procedures before pursuing a Title VII lawsuit. Specifically, employees who know of the employer's anti-discrimination policy and reporting procedure, bur fail ro avail themselves of their benefits, may be barred from pursuing a Title VlI claim as a matter oflaw. See e.g., Sconce v. Tandy Corp., 9 F. Supp. 2d 773 (WD. Ky. 1998) (plaintiff's case dismissed where the proof showed that she knew the reporting procedure bur failed ro use it and did not provide any proof that the procedure was inadequate). Moreover, these COUftS have held that generalized fear of retaliation or threats, without more, will not excuse the employee from Failing to report the harassing conduct. {d.; Fierro v. Saks Fifth Avenue, 13 F. Supp. 2d 48\ (S.D.N.¥. 11.

1998); see also, Jones v. USA Petroleum Corp., 20 F. Supp. 2d (S.D. Ga. 1998); but see, Wow v. Kroger Co., 1999 WL 147382 (March 17, 1999); Greene v. Dalton, 164 F.3d 671 (D.C. Cir. 1999).

D. Prompt Remedial Action After an investigation into a complaint of sexual harassment. the employer will have to make a decision as to what, if any, action will be taken on a complaint. Under most circumstances. whether or not an employer is liable for sexual harassment committed by the complaining party's co-workers and/or third panies is determined by its response to unlawfuJ behavior once it receives notice of it. If conduct constituting sexual harassment is discovered, the law requires that an

employer must take "prompt and effective remedial action." To avoid liability for valid sexual harassment claims for harassment committed by co-employees or third-parties, the employer must be able to offer evidence that it undertook prompt rem~dial

action 011 behalf of th. complailling party which was r~asol1ably caicu/aud to end the harassing conduct, upon learning or otherwise r~ctiving notice of the conduct. Su Domheck~r v. Malibu Grand Prix Corp.52 Though relevant to the inquiry, the remedial action requested or demanded by the charging party need not be taken by the employer in order to avoid liability so long as the remedial action taken meets the legal standard. However. if the charging party makes a reasonable demand, heavy weight should be placed on that demand if it will avoid a charge being brought with the EEOC and/or a subsequent lawsuit. Termination of the alleged harasser may constitute prompt remedial action. but termination is not always required. I. In EEOC v. Gurney IIlCorp., 914 F.2d 1195 (7th Cir. 1990), the court found that the employer's termination of a harasser was not sufficient to avoid liabiliry in an instance where the employer had prior knowledge of the harassing conduct but failed to take action unril the employee filed a charge of discrimination with the EEOC. 2. In Barrett v. Omaha National Bank, 726 F.2d 424, 427 (8th Cir. 1984), the Eighth Circuit found that discipline was appropriate where one harasser was reprimanded a.nd placed on probation and the other was warned that future occurrences would result in discharge. The employer's remedial action was sufficient even though neither harasser was terminated. Other actions which may be parr of an employer's response to a verified complajnt of sexual harassment include: 1. Oral reprimands; 2. Written reprimands; 3. Written apology to the complaining party; 4. Transfer of the employee (0 a different department (extreme caution must be taken if reorganization is part of the prompt remedial action so that the complaining party does not view action taken with respect to his/her job as being retaliation or action taken with respect to the purported harasser to be a promotion); S. Suspension;

6. Sensitivity training. Once action has been taken on behalf of the complaining party, the employer has the responsibiliry of following up (0 ensure that the remedial action has been effective. If it is determined that a problem still exists, ad.ditional action will be required.

E. BriefNote

011

Retaliation

Title VlI prorects employees from retaliation for engaging in activities protected by the Act. See e.g., Doll;' v. Reuben. 53 Such activities include filing a charge, malcing a complaint, participating in an investigation or participating in an administrative or judicial proceeding. S" 42 U.S.c. § 2000e-3(a) (West 1998). In Robi",oll v. Shell Oil Co.,54 the Supreme Court expanded the Title VlI protection against retaJiation ro include finner as well as current employees. In Robinson, the plainriff alleged that he was discharged because of his race. After being d.ischarged, he filed a Charge with the EEOC. While his Charge was pending, he applied for a job with another company and received a negative reference from Shell Oil. He amended his Charge to include a claim for retaliation claiming that h is negative reference was given in retaliation for his filing a charge of race discrimination. On appeal. the employer argued that Title VlI only applies to "employees" and that this term was necessarily limited to persons with whom the employer currently has an employment relationship. The Court rejected this argument and found that the term "employees" included former employees who engaged in conduct prOtected by Title VlI. In support of its decision. the Court accepted the plaintiff's argument that to bar former employees from bringing retaliation claims would effectively vitiate much of the protection afforded by Title Vll. Further, the Court accepted the EEOC's position that the antiretaliation provisions of Title VlI would be virtually destroyed if former employees cannOt bring such claims because an employer wouJd be able to retaliate with impuniry against an entire class of persons exercising their rights under Title VlI, ~.g.• complaints regarding discriminatory termination or failure ro hire. 55 The practical effect of the Robinson opinion is that, now more than ever, post-separation conduce respecting a former employee couJd form the basis of a retaliation claim. Many employers have already instiSexual Harrassment Continued on Page 45

fol. II NI. I/Sulmer 1999 TIe ,Irkams Lawrer

Ii


.Iudil'ial .\d\·isOl·~· Opinions The Judicial Advisory Opinions are wyllie" and provided by the Arkansas Judicial Ethics Advisory Committee

Hono,able Ralph C. Ohm Hot Springs, AR Advisory Opinion 99-02 Ap,;] 9, 1999 Your letter informs the comminee that for six years you have served as the civil anorney for Garland Couney. In chis capacity, you handle all civiJ marters in which Garland County needs represemalion or advi~. In particular. you defend all civil litigation in which Garland County is named as a parry, you provide advice and opinions to County employees and e1ecred officials, and you anend all Quorum CoUrt meetings to answer questions by various members of the Quorum Court. Lastly, you assist in drafting some of the ordinances and/or reviewing ordinances on behalf of members of the Quorum Court.

In addition to that on·going position, you have recently been elected (Q serve as a municipal judge. Nk. Code Ann. §16-17-108(ww) permits the Quorum Court of Garland Counry and the Board of Directors of the Ciry of Hot Springs to create two judgeships for the Hot Springs Municipal Court. You ask whether the Code of Judicial Conduct permits you to serve as the Municipal Judge (Division II) and, in your capacity as a private anorney, as the civiJ attorney for Garland County. You have also stated that you have entered into an agreement, that you will preside over city cases, and that the other judge (Division I) will handle all cases involving county ordinance, county officials, the Garland County sheriff's department, and the Arkansas state police. (We are unable to comment on whether this is a fair or equitable distribution for the workload.) However, despite your arrangement, the Committee remains troubled by this situation. Canon 1 requires judges to uphold the independence of the judiciary. Threats to your judicial independence are nOt merely theoretical. For example, the Statute sers forth 2 salary range for the municipal judge, with the governing bodies of the city and council seuing the salary. In theory you might be advising the quorum court on the salary to set for yourself. Conversdy, a legislative body upset with your judicial rulings might tue action 2ga.inSt you in your role as county anomey. Canon 2 requires judges to avoid even the appearance of impropriety. In light of the close relationship necessary berween a county anomey and county officials, the Starus of a judge who is compensated by the county and simultaneously is employed by the county as a private anorney can certainly appear improper in the eye of the public. We cannOt locate any controUing or even helpful authorities. Arkansas Anorney General Opinion 87·469 found no conflict in an

lS

Tie ,Irkllsas LI"11r

101. II !I. l/Slller 1999

Attorney serving as a city attorney and a municipal judge at the same time, but that opinion involved an anorney who was a city anorney in one county and a municipal judge in another county. One treatise emphasizes the danger of a parHime judge maintaining a concurrent law practice; "Keeping the functions of a judge disas· sociated from those of an attorney requires an abundance of caution." Shaman, Lubet and AJfini,j"dicial Cond"" and £,hi" (2nd ed. 1995) Section 4.16. In light of the lack of clear guidance, the proliferation of continuing parHime judges in Arkansas, and your obvious attempts to avoid possible conflicts, we cannot prohibit your holding both positions, However, we conclude that holding such dual roles in the same county is bom unwise and imprudent. Our advice would be mat you step down as the county anorney, Should you decide (0 continue in that position, you should be parricularly alert (0 potential conAicts, with the resulting need to recuse as a judge or to refrain from acting as the county attorney in particular maners, Honorable Rice Van Ausdall Harrisburg, AR Advisory Opinion #99·04 Apdl 20, 1999 You have asked the Committee whether, as Circuit/Chancery judge, it is permissible for you to maintain membership in me American Trial Lawyers Association and in the Arkansas Trial Lawyers Association, both of which were extended to you on a complimentary basis, that is, wim~ out the yearly membership fee of $1 00, Canon 2A provides in part: A. A judge shall respea and comply wim the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary, Canon 4A provides: AjUDGE SHALL SO CONDUCfTHE JUDGE'S EXTRA-JUDICIAL ACIlVITIES AS TO MINIMIZE THE RISK OF CONFLiCf WlTH JUDICIAL OBLiGATIO S A, Extra-judicial Activities in General. A judge shall conduct all of the judge's extrajudicial activities so that they do not: (I) cast reasonable doubt on the judge's capacity to act impartially as a judge; (2) demean the judicial office; or (3) interfere with the proper performance of judicial duties. In the opinion of the Committee, membership in professional organizations which are dedicated to promoting the interests of either the plaintiffs' bar or the defendants' bar and its clientele gives an appearance of impropriety by calling

into question the judge's ability to preside in certain cases with unquestion2ble impartiality. We note that in other jurisdictions (Arizona, Georgia, Florida, and Louisiana) judicial advisory committees have reached me same conclusions. For reasons stated, the Committee believes it would be inappropriate for you to maintain memberships in these associations during your judicial tenure. Honorable Steven G. Peer Van Buren, AR Advisory Opinion # 99-05 May 7,1999 Your letter of April 13, 1999 states that 111 your position as Van Buren Municipal Judge, you are authorized ro appoint me Municipal Court Clerk. A candidate for the position is the wife of your first cousin. Canon 3(C)(4) of the Arkansas Code of Judicial Conduct provides: "A judge shall nOt make unnecessary appointmems, A judge should exercise his power of appointment only on the basis of merit, avoiding nepotism and favoritism, No judge shall employ a spouse or other relative unless it has been affirm2tivdy demonstrated to me Arkansas Judicial Discipline and Disability Commission that it is impossible for the judge to hire any other qualified person to fill the position , ," The commentary to that Canon states: ", , , Nepotism is the appointing of relatives within the third degree of relationship by affinity or consanguinity. , ." The terminology section of the Code defines "third degree of relationship" as "The following persons are relatives within the mird degree of relationship: great.grandparem, grandparent, uncle, aunt, brother, sister, child, grandchild, great-grandchild, nephew or niece." We nOte that this definition does not include first cousins. In addicion, while the Code 3(E)(J)(d) seaion on disqualification expressly covers spouses, the 3(C)(4) provision on nepotism does not. In COntrast, Ark. Code Ann. §28-9·212 counrs first cousins as falling wimin the second degree of relationship, See Monon v. Bmton P"bliJhing Company, Inc., 291 Nk. 620, 727 S.W.2d 824 (1987) (disqualification was manadatory where one of the parties involved was the husband of the judge's first cousin despite lack of comact or closeness). In addition, the Arkansas statutes disqualify the judge if a relative within the fourth degree of cons2nguiniry or affinity is a pany. See Ark. Code Ann. §§16-13-214, 16-13312, 16-14-103, 16-15-111, and 16-19-206. Our advisory opinion 98-04 notes the difference between the Code method of determining re!aJudicial Advisory Opinions Continued on Page 45


Lim}l'I'

IIiSripIiDiIl} .\I't ions

rhe Lawyer Disciplinary Actions are wriuen alld provided by the Supreme Court ofArkansas' Commiuee on Professional Conducl. OTICE OF SUSPENSION OF LICENSE

Neil V. Pennick HOI

Springs, AR

March 18, 1999

me

The formal charges of miscondua arose from Complaint of Anhur and Vida Singleton. Mr. and Mrs. Singleton were involved in a motor vehicle accident in 1995 whettin [he responsible party for me accident was killm. As membc:n of the Unitm Auto Workers Union (UAW), me Singletons conuaed the UAW legal &rvices Plan to obrnn me names of coopct:lting :mornqs in tht:ir ara. The UAW l.Lg:lI &rvices Plan provided the inglC'rons with the name of dl V. Pennick, Anorney :u Law, HOI Springs, Arkansas. Mr. Pennick was men employed by the Singletons in D«:tm~r 1995 to rep~nt them in aU claims arising out of the malOr vchicle accidenr. The SingletOns specifically requested al the tim~ Mr. P~nnick was employed mat he f1I~ a claim againsl m~ Es(lU~ of Roy Erikson, th~ responsible paJt)'. From D~c~mb~r 1995 to August 1996, the Singletons ammpled to discuss the St:uus of [h~ir matter with Mr. Pennick bUI were unable ro do so exc~pt for one occa· sion in F~bruary 1996. As th~ Singl~tOns had not h~ard from Mr. Pennick at any oth~r tim~, they contacted me Cli~nt Services Depanmenl for th~ UAW ~gal $crvices Plan. A Client Services representativ~ mailed a letter to Mr. P~nnick dated April 17, 1996, advising him mat the Singlerons wished to learn of me Status of mdr c:asc:. Th~~ was no resporue ITom Mr. Pennick to this mjuest. The next contact the Singletons had wim Mr. Ptnnick was in August 1996 when he telephoned th~ Singl~lons and informed them that he had received sen..l~menl checks from Mr. Erikson's insurance com· pany and mat h~ would mail me checks to th~m for their endorsement as he was rndy to dOK the tik From August 1996 to March 1997, the Singletons had no funh~r contact with Mr. Pennick. On March 12, 1997, Mr. Pennick Id~phoned the Singl...tons and informed them that the sen..lem~nt checks had ~n sem to them for their endorsc=:menl. The Singletons Stated thaI the checks ....~~ nevu received by mml. Th~ Singletons th~n called Mr. Erikson's insurance car· ri~r and were lold thaI the checks had bttn mailed to Mr. P~nnick in May 1996. The Singletons informed th~ Cli~nt Services Department of th~ UAW l...egal Services Plan of the 5CllUS of their maner. A Oient Services representative wrol~ Mr. Ptnnick and mjuest· ed mat he provid~ an accounting of all fees and costs men due bim. The Cli...m Services Represenrativ~ then called the insurance carrier and mjuested that they issu~ two (2) seJnrale checks-on~ for the Singletons and one for Mr. P~nnick. The Singl~{Qns mereaftt:r employed new counsel ro r~prcsem them in concluding rhis maner. It was shorLly thereafter thai the SingletOns discovered that Mr. Pennick had not tiled a claim againsl the Erikson estate, that the estate was closed, and that Ihdr claims against the esral~ w~~ now barred. Mr. Pennick personally sign~d for th~ formal complaint on Nov~mber 16, 1998. Mr. P~nnick fail~d to respond. His failure to r~spond timely to Ih~ Compl:lint constitutes admission of th~ £:tCtual allega-

tions contained in the Complaint pursuant to Section 51(4), Procedures of the Ark.ans2s Suprem~ Court Regulating Professional Conduct of Anomeys .11 Law (Procedures), as m>ised J:lnu:lry 15, 1998. Upon coMider;nion of m~ formal complaim henin, the Commincc on Professional Conduct finds: I. Th:lt Mr. Ptnnick's conduo in this man~r violated Modd Rule 1.2(a), Arkansas Modd Rules of Professional Conduo, whe:n h~ f.t.iled to file a claim on behalf of the Single:tons against th~ Estat~ of Roy Erickson and wht'n he f.t.iled to pursue recovery against Ihe Singl~lons' underinsur~d motorist cov~rage, although both daims ~u to be includ«l as part ofhis ~prcsentation of th~ Singl~tons. Model Rule 1.2(a) requires, in pertin~nt part, that a l:lwy~r shall :lbide by a diem's decisions concerning the obj«:tives of ~pr~· sentation and shall COIUUIt with the client as to me means by which they are to be pursuro. 2. That Mr. Pe:nnick's conduo in this maner violated Modd Rul~ 1.3, Arkansas Model Rules of Professional Conduct, when h~ £:tiled 10 aCI wilh rea· sonabl~ dilig~nce and promprness in representing the Singl~(Qns in concluding th~ir case from May 1996 when h~ received Ihe insuranct' procttds for the bene· fit of Arthur ..nd Vida Singleton [0 June 1997 when h~ waived any interest in thos~ proceeds. Model Rul~ 1.3 requires that a lawyer sh..11 aCI with reasonable dilig~nc~ :lnd promptness in representing a c1i~nt. 3. That Mr. Pennick's conduct in this matter violated Model Rule 1.4(a), Ark:lnsas Model Rules of Professional Conducr, wh~n h~ £:tilro to keep th~ Singl~lons informed ..boUl th~ starns of their ma[t~r following mdr r..-queslS for inform:llion; wh~n h~ failed 10 respond to the first It'tt~r from me UAW UgaI Services Plan-Cli~nt Sc:rvices Department on behalf of the SingletOns; and, when he failed to rc:spond to th~ subs..-quem le[(~r from rhe UAW Legal Services Plan-Client Services Department on behalf of the Singletons. Modd Rule 1.4(a) requires m:lt :l lawyer shall keep :l di~nr reasonably informed abour me StatUS of a matt~r and promptly comply with reasonabl~ requests for information. 4. That Mr. P~nnick's conduct in mis m:ln~r violated Modd Rule 8.4(d), Arkansas Model Rules of Professional Conduct. wh~n h~ £:tilro to tak~ steps 10ward concluding Ih~ m:ll1~r fOI the Singl~tons; when h~ £:tiled to file a claim on behalf of th~ SingletoM apinst the Estate of Ray Erikson which resulted in any por~ntial claim being fom>~r barred; and, wh~n h~ failed to til~ a claim on behalf of the: SingJ~ons against their own underinsured mOlorut coverage for any injuries which exceeded th~ :lmount of Erikson's insur· ance policy. Model Rul~ 8.4(d) requires that a laW)'t'r shall not ~ngage in conduct thaI is p~;udicial to th~ administT:uion ofjustic~. WHEREFORE, it is th~ decision and ord~r of th~ Arkansas Supreme Court Commincc on Professional Conduct rhal NEIL V. PENNICK, Arkansas Bar ID 182124, be, and hereby is, SUSPENDED ITom th~ practice of law for his conducl in this maner. Mr. Pennick's suspension shall be for a period of six (6) months and shall becom~ dfective as of the date of the filing of this Order.

NOTICE OF REPRIMANDS Bobby Kr.noe:th Scou Rogers, AR March 4. 1999 Th~ formal charges of misconduo arost' ITom me Affitbvit of Donna M. Rozwalb. Bobby K~nn~th ScOtt, an attorney praoicing in Rogers, Arkansas, was retained to represenr Ms. Rozwalka on all claims arising out of injuries sh~ suff~red as :l result of an accid~nt at th~ Rogen Bowling AJley. Ms. Rozwalb's recoU«tion is that Mr. Scon agrttd to represent h~r on :l contingem fcc basis, a £:to disputed by Mr. Scon. According ro Mr. Scon, he never intended to charge h~r for me ~presenration becaUM she was a disabled widow on Medicare. MVt' (5) months after Mr. Scon had und~rtak~n to represent Ms. Rozwalka, she learned from her doctor thar th~ insurance company for the bowling alley was nor going to mak~ any mor~ medical paymt'nts on her behalf. Afte:r learning this, Ms. Rozwalka W~nt ro Mr. Scon's office 10 discuss her options. During their con· versation, th~ pursuit of a lawsuit was discU$S(:d. Ms. ROl.walka believed Mr. Scon would file a lawsuit on her behalf. Two (2) months after Iheir consultation, Ms. Rol.w:llka cot1l:lctecl Mr. Scott b~c:luse she had heard nothing from him. Wh~n she rea.ched Mr. Scon, she was informed that no lawsuit had been fi1~d on h~r behalf. As they discussed h~r 1~ga1 man~r, Mr. Scott advised her to hir... oth~r counsc:l. Ms. Rol.walka agreed to do so. In connection therewith, she requested a copy ofh~r fil~ so she could presenl it to oth~r anorneys wirh whom sh~ spok~. Mr. Scott ~fus.ed to provid~ h~r th~ cont~nts of th~ fi1~ to which sh~ was ~ntided, ~~n aft~r receiving a len~r from m~ Commincc's Executive Director advising him that Ms. Rozwalka wanted copies of information and docum~nt:ltion. Since the anomeys with whom Ms. Rozwalka spoke W:lJltro to see h~r file contents befo~ making a determinacion about ~presenting h~r, sh~ has bttn unabl~ to retain th~ services of another attorney to assist h~r in h~r Itgal matter. Upon coMidetation of m~ formal complaint and response h~rdn, the Commiutt on Professional Conduo finds: 1. That Mr. Scou's failu~ to take any action on behalf of Ms. Rol.waIka for a period of twO months from Sept~mber 1997 to Nov~mber 1997 viol:lted Modd Rul~ 1.3, Arbnsas Model Rules of Professional Conduo. Model Rule 1.3 mjuires that a lawye.r shall :lct with reasonable dilig~nce and promptness in represc:nting a client. 2. That Mr. Scon's conduct violated Model Rul~ 1.5(c), Arkansas Model Rules of Professional Conduct, when h~ did nOl place rh~ fcc agreem~nt in wrint'n form a1rhough h~ ..greed to ~presem Ms. ROl.wa1k:l for:l fet: thaI was conting~nt on th~ outcome of th~ m:ltl~r for which h~ was hired to r~presenr h~r. Model Rule: 1.5(c) r..-quires, in penin~nt part, m:lt :l contingenl fee agreement shall be in writing. 3. That Mr. Scon's conduct violaled Model Rule 1.16(d), Arkansas Model Rules of Professional Conduct, by f:ailing 10 lak~ :lny SI~pS on beh:llf of his form~r c1icnt to assist her in proteet:ing her int~rests in th~ legal mattt'r involving Ih~ bowling :lUcy although

1'.1. 1·1 II. I/SuII/r I9!I

The Jlrkma

La~y/r

19


Lil\\}PI' Ms. Rozwalka has ~qucS[ed he:: do so on numerous occasions, and, by failing to surrender Ms. Rozwalka's file to her so thai she may obtain other counsel to assist her in her legal malter. Model Rule 1.16(d) requires. in peninem part, that upon termination of rcprescmation, a lawyer shall take steps to me eXII~OI reasonably practicable [0 protect a diem's interests, such as sur· rendering papers and property to which the client is entitled. That Mr. Scon's conduct violated Modd 4. Rule 8.4{d), Ark:msas Model Rules of Professional Conduct, [0 wit: He has failed to cooperate with Ms. Rozwalka in her attempts 10 obtain information from her file so that she may seck other counsel, apprise them of the efforts taken on her behalf, and pursue her available legal remedies. Model Rule 8.4(d) requires that a lawyer shall not engage in conduci lhat is preju· diciallO the administration of justice. WHEREFORE, it is the decision and order of lhe Arkansas Supreme Coun Comminee on Professional Conduct that BOBBY KEN ETH SCOlT, Arhnsas Bar ID 858027, be, and herdly is, REPRIMANDED for his condua in this matter.

Alvin L Simes Wen Helena, AR March 4, 1999 The formal charges of misconducl arose from the Complaim of William L. Wharton, an anorney for the Arkansas Slate Highway and Transponalion Depamnenl. Alvin L. Simes, Anorney al Law, Wesl Helena, Arkansas, represemed Larry CrumplOn in a civil case in the United States DiSlrict Court for the Eastern Districl of Arkansas against an Arkansas Highway Police Officer for damages alleged to have occurred following Mr. CrumplOn's arrest. Following initiarion of the lawsuil, Mr. CrumplOn was deposed on December 29, 1993. Presem during the deposition were Mr. Crumpton, his anorney Alvin Simes, and defense counsel. In the deposition, Mr. Crumpton was asked the '1ueslion, "Have you ever bttn convicted of any crimes?~ Mr. Crumpton's response 10 the question was ~ 0." Mr. Crumplon was then asked, ~You have no criminal hislory at all?" Mr. Crumpton responded to the question by stating "No, sir." The record d()(:S nor reflect any other statement from Mr. Crumplon or Mr. Simes regarding Mr. Crumpton's criminal history. Trial in the civil case was held in Augusr 1997. During the course of the trial, Mr. Crumpton was called ro testify by Mr. Simes. During cross-examination, Mr. Crumpton was asked the question, "Have you ever bttn convicled of scrond degree murder?" Mr. Crumpton answered, "Yes, sir." Mr. Crumpton was then asked about the answers he ~ve in his 1993 deposidon ro the questions of whether he h.ad bttn convicted of any crimes and whether he h.ad a criminal history. Mr. Crumpton staled, ~I was rold, I had a conference with my lawyer. He had kind of influenced or advised me thai anything over ten YOts roily didn't maner. So I must have gOt tripped up on that deposi(ion. 1 wu thinking along (he terms that by it being so far back ... " Mr. Crumpton was then asked, ~You were under oach when Ihis deposition was taken, were you not?" "I was under oath," replied Mr. Crumplon. Mr. Crumpton then was asked about convictions of first·

,10 111 ,Irkulil LiW!rr

fa!.ll ~,.I/S' ••lr 1m

DisripliRill} .\ft ions

degree assault, third-degree battery, disorderly conduct, second degree forgery, resisting arrest, second degree: assault and third degree battery. Mr. Crumpmn admit· u:d thai each of the convictions had occurred and that one of the convictions, third degree banery, had occurred within len (10) years prior to his deposition. The '1uestions abom Ih~ convictions were IXrmissible on cross-o:amination because Mr. Simes allowed his client 10 be untruthful during his deposition aboul whether he had prior convictions. Mr. Simes responded (Q the Complaint and slaled Ihat he never advised Mr. Crumpton that a criminal conviction which was more than ten (10) years old did nOl maner. Mr. Crumpton was under a duty to testify lruthfully and, therefore, according 10 Mr. Simes, he did not violate Model Rule 1.1. Mr. Simes averred that he was unaware of the criminal hisrory of Mr. Crumpton. According to him, Mr. Crumpton did not [ell him of his criminal history. Mr. Simes stated that he instructed Mr. Crumpton to testify [ruthfully dur· ing his deposition and, without Mr. Simes's knowledge, Mr. Crumpton either testified falsely or failed 10 under· stand rhe questions asked of him .11 his deposition. As Mr. Crumpton was under a duty to restify rruthfully and Mr. Simes did nOt know of the prior convictions, Mr. Simes assened that he could not have aided or assisted Mr. Crumpron in testifying falsely. Mr. Simes therefore denied violaling Model Rules 1.2(d), 3.3(,)(2), 3A(b) ,nd SA(d). According to records from the Phillips County Circui[ Court provided by Mr. Wharton in rebuttal 10 Mr. Simes's response, Mr. CrumplOn had bttn found guilty of Resisting Arres[ and Disorderly Condua in Helena Municipal Coun and had appe.aled the convictions to the Phillips County Circuil Coun. A Notice of Appeal, in both cases, was signed by Mr. Simes and was filed with the Circuit Court Clerk on February 3, 1993. The appeals in each case were dismissed by the Circuit Court on December 6, 1993, rwenty-three (23) da)'s before Mr. Crumpton's deposition occurred. Upon consideral'ion of the formal complaint, the response herein and the rebuttal information, the Comminee on Professional Conduci finds: 1. That Mr. Simes's conduct violated Model Rule 1.1, Arkansas Model Rules of Professional Conduct, by his failure to take any action when Mr. Crumpton umru[hfully testified in his Dectmber 29, 1993 deposition; by his failure to advise counsel fol· lowing the deposition that Mr. Crumpton had bttn convic[ed of crimes, including Second Degree Murder; and by his failure 10 ProlXrly advise his client concern· ing issues of prior convictions, thereby allowing Mr. Crumpton's prior convictions to become subject to crms examination and an issue ro be presented to the jury. Model Rule 1.1 requires that a lawyer shall provide compelem representation to a c1iem. ComlXtem representation requires the legal knowledge, skill, thoroughness and preparalion reasonably necessary for the representation. 2. That Mr. Simes's conduct violated Model Rule 1.2(d), Arkansas Model Rules of Professional Conduct, by his failure [0 advise Mr. Crumpton to tesdfy truthfully regarding his prior convictions at the 1993 deposition; by his advice mat any prior criminal conviction which occurred more than ten (10) years prior did nor really matter which gave Me. Crumpton Ihe impression that it was okay to deny any prior criminal conviction; and by his failure to counsel Mr.

Crumpton about any remedial measures when he testified untruthfully in his sworn deposition. Model Rule 1.2(d) re'luites that a lawyer shall nOt counsel a c1iem 10 engage, or assisl a c1iem, in conduct that the lawyer knows is criminal or frnudulem, but a lawyer may djs· cuss the legal consequences of any proposed course of conduc[ with a client and may counse.1 or assist a client to make a good faith effort to determine the validity, scolX, meaning or application of the law. 3. That Mr. Simes's conduct violated Model Rule 3.3(.1)(2), Arkansas Model Rules of Professional Condua, by his failure [0 disclose 10 the Court a[ or ncar the time of the deposition that his c1iem, Mr. Crumpton, had been unlruthful in his deposition; and, by his failure to advise the Court of his client's untruthful sratement despite having knowledge of his client's criminal history. Model Rule 3.3(a)(2) requires that .a lawyer shall not fail to disclose a material fact to a tribunal when disclosure is necessary 10 avoid assisting a criminal or fraudulent act by the client. 4. That Mr. Simes's conduct violated Model Rule 3.4(b), Arkansas Model Rules of Professional Conduct, by his failure to take action to prevent his client, Mr. Crumpton. from lestifying untruthfully; by his counseling Mr. Crumpton that any prior criminal conviaion which was more than ten (10) years old did nm matter; and, by his failure to take any remedial measure to correct the untruthful statement made by his client. Model Rule 3.4(b) requires, in peninent pan, that a lawyer shall nOI counsel or assist a wirness to [estify falsely. S. That Mr. Simes's conduct violaled Model Rule 8.4(d), Arkansas Model Rules of Professional Conduc[, by his ac[ of remaining silen[ 2t Mr. Crumpron's deposition in 1993 when he testified untruthfully about his criminal history while under oath. Model Rule 8.4(d) requires that a lawyer shall nOI engage in conduct that is prejudicial 10 the administration of justice. WHEREFORE, it is the decision and order of the Arkansas Supreme Coun Committee on Professional Conduct that ALVIN L. SIMES, Arkansas Bar 10 #89188, be, and hereby is, REPRJMANDED for his condua in this maner.

Shuon Ddana Ru.ssell Nonh Linle Rock, AR March 4, 1999 The formal charges of misconduct arose from the Arkansas Supreme Coun case of Ci/bl'rto RAmos v. StaU of ArkllmflJ, CR 98-730. Sharon Delana Russell, an anomey prncticing law in Arkansas, was held in can· tempt of the Supreme Coun of Arkansas, for her con· duct in the abovementioned matter. The Contempl Order was based upon Ms. Russell's conduct in failing 10 perfect Mr. Ramos' appeal. On August 22, 1997. Ms. Russell filed a timely Notice of Appeal on behalf of her client. Ms. Russell had bttn retained by Mr. Ramos to represe.nt him a[ the trial court level and was thereafter never relieved as counsel. After filing Ihe Notice of Appeal, Ms. Russell took no other action to perfect Mr. Ramos' appeal. On June 16, 1998, Mr. Ramos filed a Pro Se Motion for Belated Appeal in an effort ro proceed wilh his appeal. Ms. Russell acknowledges that she filed the Notice of Appeal bur explains she did so only to allow Mr. Ramos


Lil\\}PI' and his f2mily additional riml"

handle the .appeal,

[Q

locate an attorney to

btta~

IIisl'iplinal} .\('fions

Ricky A..hlock

she had advised them that she would nOi ~ interested in handling me appeal Ms. Russdl also explains m.:n she orderro me tr:lJ1SCripr

Conway, AR March 10, 1999

after Mr. Ramos' family brought her $1,000 to do so. AlTer their aw~mpts to hire anomer anomer wen=:

The formal charges of misconduct arose from the Complaint of Ray Gorcyca. Ricky Ashlock, Attorney at Law, Conway, Arlunsas, was TC'uined to TC'present Mr. Corcyca's company, Sunbeh Business Brokers (Sunbelt), in an ill(~rplead~r action in which Sunbeh claimed an inter~t in money hdd by Faulkner County Title Company. Mr. Ashlock received $1,000 on OCtober 2, 1997, wilh an additional $500 to be paid in ov~mber, to represent Sunbeh. If there was an appeal, Mr. Ashlock would receive 25% of any funds collected. The only writing evid~ncing th~ agr~mem was found on the back of Mr. Ashlock's business card. When no pleading had been filed by Mr. Ashlock by October 31, 1997, Mr. Corcyca terminated the TC'presenution and requ~ted th~ return of the TC'tainer. After Mr. Ashlock's employment was t~rminated and another anorney was employed, a timdy answer was filed. Mr. Ashlock assened that he had researched the issue bur his representation ofSunbeh ended prior to the deadline for filing an answer. Mr. Ashlock admitted that he had nOI TC'turned any of the fees paid by Mr. Corcya and that Mr. Corcya had obtained judgment against him in the Small Claims Coun of Pulaski County for the amount offees paid. Upon consideration of the formal complaint and response herein, the Commitlee on Professional Conduct finds: I. That Mr. Ashlock &iled to put his entire contingent fet agreem~nc in writing thereby fulling to set forth the method by which the fee was to be deter~ mined; the perc~ntage accruing to him in the event of seruement, trial or appeal; and whether openses were to be deducted. Said &ilure was a violation of Model Rule l.s(c), Arkansas Model Rul~ of Professional Conduct. Model Rule I.S(c) requir~, in pertinent pari, that a contingent fee agreement shall be in writing and shall sute th~ method by which the fa is to be determined, including the percentage or percentages that shall accru~ to the lawyer in the n-ent of settlement, trial or appal, litigation and other openses to be deducted from the recovery, and whether such expens-~ are to be deducted before or after the contingent fee is calculat'ed. 2. That Mr. Ashlock &.i1ed to return any portion of the rewner paid which violated Modd Rule 1.16(d), Arkansas Model Rules of Professional Conduct. Model Rule 1.16(d) requires, in pertinent parr, that upon termination of representation, a la~r shall take Sleps to the atent reasonably practicable to protect the client's interests, such as refunding any advanced payment of fee that has nOt betn earned. 3. That Mr. Ashlock's conduct violated Model Rull' 8.4(d), Arkansas Modd Rules of Professional Conduct, in thai, his &.ilurl' to honor his agreement with Mr. Corcyca and file a response to the intl'rpleader necessitated the hiring of another artornl'Y to represent Mr. Corcyca's legal interests, and, the filing of a lawsuit against Mr. Ashlock for the recovery of funds paid. Modd Rull' 8.4(d) requires that a lawyer shall not engagl' in conduct that is prejudicial to the adminiStration of justice. WHEREFORE, it is the decision and order of the Arkansas Supreme Court Committee 011 Professional Conduct that RICKY ASHLOCK, Arkansas Bar 1D

unsuccessfUl. Ms. RUSSC'IJ advises that she informÂŤl. Mr. Ramos' family that she would procero with the appeal after they brought her an additional S 1,000. Since she hear anything e:I~ from Mr. Ramos or his family. she assumed they had abandoned pursuing me appeal or that they had hired anomer attorney. In itS Per Curiam, thl:' Coun found mat Ms. Russell had abandoned her client on appal, and the' Coun also noted that sinct 1996 she h:l.d not paid the' professional dues which anorneys al'(: required to rt'mil to the Clerk annually. As a resulr of this F.tilurt', Ms. Russell had represenced Mr. Ramos in the trial coun: proettdings at a time when she was nor in good standing as a r~ult of the unpaid professional fee. Ms. Russell avers that she sent her 1997 bar du~ and lale fee to the Clerk prior to her representation of Mr. Ramos in Circuit Coun. However, she offered no documentation to ver~ ify this averment. Upon consideration of the formal complaint and response herein, the Committee on Professional Conduct finds: I. That Ms. Russell's F.tilure to exhibit any thoroughness or preparation in perfocting her client's appeal subsequent to filing a Notice of Appeal on AuguSt 22, 1997, violated Model Rulc 1.1, Arkansas Model Rules of Professional Conduct. Modd Rule 1.1 requir~, in pertinent part, that a lawyer shall provide competent representation ro a client, including the thoroughness and preparation reasonably necessary for the TC'presentation. 2. That Ms. Russell's conduct violated Model Rule 1.3, Arkansas Model Rules of Professional Conduct, by &i1ing to rake any action on behalf of Cilbert Ramos, Jr., in pursuit of his appellate rights from August 22, 1997, through June 25, 1998. Model Rule 1.3 requir~ that a lawyer shall act with reasonable diligence and promptness in representing a client. 3. That Ms. Russell's conduct violated Model Rule 8A(d), Arlunsas Model Rules of Professional Conduct, to wit: (i) Her f-ailuTC' to take any action to preserve Mr. Ramos' rights to an appeal, following filing the Notice ofAppeal, caused an atreme delay in his appellate proceedings; (ii) Her f.t.ilure to take any action on Mr. Ramos' behalf, as well as her TC'presenta.tion of Mr. Ramos while her privilege to practice law was sus-pended, caused the Arkansas Supreme Coun: to have to schedule and conduct a show cause hearing; (iii) The orderly and timely administr:uion and resolution of appellate proceedings were delayed by her abandonment of her client; and, (iv) Her &.i1ure to make any effort to have Mr. Ramos' appellale rights preserved required the CoUrt ro apend additional time and effort which would not have been necessary otherwise. Model Rule 8.4(d) requires that a lawyer shall not engage in conduct that is prejudicial to the administration of justice. WHEREFORE, it is the decision and order of the Arkansas Supreme Court Committee on Professional Conducl that SHARON DELANA RUSSELL, Arkansas Bar ID #90207, be, and hereby is, REPRIMANDED for her conduct in this maner. did

nOl

694124, be, and hereby is, REPRIMANDED for his conduct in this man~r.

Ricky A..hlock Conway, AR March 10, 1999 The formal charges of misconduct aro~ from the Complaint of Frances Walker. Ricky Ashlock, Anorner at Law, Conway, Arkansas, was employed to represent Ms. Walker in a sland~r suit. Mr. Ashlock filed suit on behalf of Ms. Walker in December 1995 and a Temporary Restraining Order was obtained. Bur for a Motion for Panial Summary Judgment filed on July 23, 1996, no furth~r action has been taken by Mr. Ashlock since an Answer was filed by the opposing party. Ms. Walker made numerous calls to Mt. Ashlock's last known telephone number and wrote leners to seek information about her case. There was no response from Mr. Ashlock to Ms. Walker's telephone calls or letters. As of the date the formal complaint was sent to Mr. Ashlock, th~ case was still pending on the docket of lhe Faulkner County Chancery Court. Mr. Ashlock admits that he did not keep in contact with Ms. Walker but asserts he never stopped representing Ms. Walker. Upon consideration of the formal complaint and response h~rein, the Committce on Professional Conduct finds: I. That Mr. Ashlock's conduct violated Model Rule 1.3, Arkansas Model Rules of Professional Conduct, by failing to rake any action from January II, 1996, when the lawsuit was filed, to July 23, 1996, when a Motion for Partial Summary Judgment was filed and by failing to tak~ any action on Ms. Walker's behalf after the July 23, 1996, Motion for Summary Judgment was filed. Model Rul~ 1.3 requires that a lawyer shall act with rcasenable diligence and promptness in rl'presenting a client. 2. That Mr. Ashlock's conduct violated Model Rule 1.4(a), Arkansas Model Rules of Professional Conduct, in that, although Ms. Walker has made anempts to discuss her case with him by writing ll"ners, he has failed to respond; and, despite Ms. Walker's repeated telephone calls made to him in an effort to requesl information, he &.i1ed to TC'turn her telephone calls abom the maner. Model Rule 1.4(a) requires a lawyer to keep a client reasonably informed about the status of a maner and promptly comply with reasonable requ~ts for information. 3. That Mr. Ashlock's conduct violated Model Rule 8A(d), Arkansas Model Rules of Professional Conduct, 10 wit: His fiailure to take any timely action on behalf of Ms. Walker has caused delay in the orderly and timely administration and resolution of Ms. Walker's case by the Faulkner County Chanc~ry Coun, since her case has been on the docket since December 1995 with no action having betn taken by him on behalf of Ms. Walker since July 1996; and, has prejudiced Ms. Walker from having her matter heard in a timely manner. Modd Rule 8.4(d) requires that a lawyer shall nor engage in conduct that is prl'judicial to the administration of justice. WHEREFORE, it is the decision and order of the Arkansas Supreme Coun Committee on Professional Conduct lhal RICKY ASHLOCK, Arkansas Bar ID #94124, be, and hereby is, REPRIMANDED for his conduct in this maHer.

1'01. 11,10,

I/Sumlrr 1999 fhe ,Irkmll Ll"yer

H


La\\JPI' Disl'ipliDill} .\dions Charles Richard Lippard

Boon,ville, AR March 10, 1999 The formal charges of misconduC[ arose from the Arkansas Supreme Court case of Gary Sly v. Srau of

Arkansas, CR

98~595.

Charles Richard Lippard, an

anorney practicing in Booneville, was held in contempt of the Supreme Court of Arkansas, for his conduct in the abovementioned maner. The Contempt Order was based upon Mr. Lippard's failure [0 protect Mr. Bly's appeal and for representing Me. Bly while not in good standing. On May 23, 1997. Mr. Lippard represented Gary Bly at his jury trial wherein he was found guilty of burglary. The Amended Judgment reflecting Mr. Bly's conviction and his sentence of 120 months imprisonment was emered of record on AUgUSI 22, 1997. Following his appointment [Q represent Mr. Bly at the trial coun level, Mr. Lippard was never relieved as counsel. Mr. Lippard did not file a Notice ofAppeal on Mr. Bly's behalf following entry of the Amended judgment. According to Mr. Lippard, Mr. Bly never notified him of his desire to pursue an appeal from the judgment. Nine (9) months after entry of the Amended judgment, Mr. Bly filed a Pro Se Motion for Belated Appeal with the Supreme Court of Arkansas. Although Mr. Lippard was sent requests to submit a responsive affidavit on three (3) occasions, such an affidavit was nOt received. The Pro Se Motion was submined for the Coun's action without a responsive affidavit from the anorney. At the Show Cause hearing, Mr. Lippard explained that he had prepared a responsive affidavit and forwarded it to the Supreme CourL He admitted that his office had received the subsequent requests putting him on notice that the Court Clerk had nO! received a responsive affidavit. However, he was nO!

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aware of them at the time his office staff received them, because they were placed in the dosed file. He only learned of the additional requests subsequent to the Show Cause Order delivered by the Supreme Coun on September 17, 1998. In the Show Cause Order, rhe Supreme Court also took judicial notice that Mr. Lippard had nm paid his professional dues for the years 1997 and 1998 until june 4, 1998. Based upon this faCt, Mr. Lippard was not in good standing when he represented Mr. Bly in 1997. Mr. Lippard explained that his fa..ilure to pay his professional dues in a timely manner was simply an error on his part. The explanations offered in response to the Complaint Before the Committee were also offered as mitigation to the Supreme Court at the Show Cause hearing wherein Mr. Lippard entered a plea of guilty to the contempt citation. After consideration of all the facts, the Supreme COUrt issued a Comempt Order and fined Mr. Lippard $250 for his conduC[. Upon consideration of the formal complaim and response herein, the Committee on Professional Conduct finds: I. That Mr. Lippard's conduct violated Model Rule 1.3, Arkansas Model Rules of Professional Conduct, by failing to file a Notice ofAppeal on behalf of his dient, Mr. Bly; and, by failing to respond to the two follow-up requests concerning the requested Affidavit addressing his client's Pro Se Motion for Belated Appeal, thereby delaying consideration of the Morion. Model Rule 1.3 requires that a lawyer shall act with reasonable diligence and prompmess in representing a diem. 2. That Mr. Lippard's appearance and representation of Mr. Bly at the trial at a time when his license to practice law was suspended based upon his failure to pay his annual license fee violated Model Rule 5.5(a), Arkansas Model Rules of Professional Conduct. Model Rule 5.5(a) requires that a lawyer shall not practice law in a jurisdiction where doing so violates the regulation of the legal professional in that jurisdiction. 3. That Mr. Lippard's conduct violated Model Rule 8.4(d), Arkansas Model Rules of Professional Conduct, to wit: 0) His failure to file a Notice of Appeal on behalf of his dient along with his failure to file a responsive affidavit addressing the Pro Se Motion for Belated Appeal and his representation of Mr. Bly while not in good standing caused the Arkansas Supreme Court to have to schedule a show cause hearing; (ii) The orderly and timely administration and resolution of appellate proceeding were delayed by his failure to file a Notice of Appeal on behalf of his client, Gary Bly; and, (iii) His fa..ilure to file a Notice of Appeal on behalf of his client required the Coun to expend additional time and effort which would not have been necessary otherwise. Model Rule 8.4(d) requires that a lawyer shall not engage in conduct that is prejudicial to the administration of justice. WHEREFORE, it is the decision and order of the Arkansas Supreme Coun Commirtee on Professional Conduct that CHARLES RICHARD LIPPARD, Arkansas Bar 10 #70041, be, and hereby is, REPRIMANDED for his conduct in this matter.

John Wdliam Patton, IV Lewisville, AR March 26, 1999 The formal charges of misconduct arose from the complaint of Howard W. Huckabee and Dorothy Huckabee Havard. both residents of Louisiana. Mr. Huckabee and Ms. Havard had inherited an undivided 10/ 13ths of certain real property located in Hempstead County, Arkansas, comprising approximately 72 acres of unimproved land. The remaining 3/13ths of the property was held by nine relatives of the complainants. Mr. Huckabee and Ms. Havard desired to divest themselves of ownership in the property. Upon referral by an attorney in Louisiana, the com~ plainants comacted john W Panon, IV, an attorney practicing law in Lewisville, Lafayette County. Arkansas. Following an earlier telephone conversation with Mr. Patton, the complainants met with him at his office in late Mayor early june, 1992. According to the complainants, they informed Mr. Patton of their desire to sell their interest in the realty, that timber had not been cut on the property for 30 or more years, and their belief that coal existed on the premises. Partition of the realty was not discussed and Mr. Patton advised that it would be in the complainant's best interest to attempt to sell their undivided interest in the property and that he would undertake solicitation of bids for the sale of this interest. To that end, it appears the attorney contacted three or four local individuals who he knew to be in the business of occasionally purchasing undivided interests in timber and/or real propeny. Mr. Patton also undertook to obtain and review the abstract of the Hempstead County property. The latter part of June 1992, Mr. Huckabee and Ms. Havard received correspondence from Mr. Panon informing them that he had received three bids and requesting that the clients contact him to discuss the bids. Shortly thereafter, they consulted with Mr. Patton in his office. The lawyer advised that he had received three bids for the purchase of the 10/ 13ths interest and that the highest bid was submitted by an individual named jerry Owens. Mr. Owens was in the business of buying and selling timber and pulp wood. At that meeting, the diems again inquired about the potential value of the mineral rights associated with the property. Mr. Patton told the complainants that there were not enough minerals to merit attention. As Mr. Owens' bid was the highest bid obtained by their attorney, Mr. Huckabee and Ms. Havard decided to accept it. Thereafter, on August 12, 1992, the panies met in Mr. Patton's office at which time the complainants executed a warranty deed in favor of Mr. Owens, received the agreed purchase price. and paid the attorney $1 ,000 for his services. At some point closely contemporaneous with the property transfer of August 12, 1992, jerry Owens had undettaken negotiations with one of the owners of the remaining 3/13ths interest who resided in the general locality. The purpose of the discussions was a contemplated transaction by which the party would attempt to acquire the out'S[anding ownership interests of his relatives and, upon acquisition of all of the outstanding interests in the property, Mr. Owens would convey his title to the party in exchange for a timber deed to the whole of the property. On September 9, 1992, by a written fee agreement, Mr. Patton had been engaged by Mr. Owens to provide


tit\\ "rl' IIisriplillill} .\d ions amin I~ 2rvices and other assisr:rnce in Mr. Ov.'t:ns'

quest

acquire rhe ourscmding property interests in the 72 acres., (Q include ptqY.lf':nion of Itgal documents and institution of suit. if n~ry. Mr. Pauon. by dll~ terms of the fee agrument pn=pamf by him, was [0 r~ive for his ~rvices a contingC'nr fee of one~third of

NOTICE OF CAlJfJONS

10

the nel proceeds received by Mr. Owens for any subse·

quem sale of his interest in the tract of land. Furth('f, Mr. Owens was to convq the mineral imeresu in the land to Mr. Panon prior 10 any future conveyance by Mr. Owens. Therafter, by the filing of convey2nces on OC(Q~r

23 and 25. 1992. a relative of the com·

plainanu was vested wirh title to the entire

tr.lCt subj~

a timlxr dttd in bvor of Mr. Owens and thC' ~r· anee and convqance of minem tighes to Mr. Panon. In Novemlxr 1992. Mr. Owens sold his tide to the standing timlxr to a third party for a value significant(Q

ly higher than the purch~ pri« hC' had paid. Following 21l cvidC'ntiary hearing at which Mr. Patton ap~ bd"orC'" thC' CommittC'C'", and in KCOgOilion of and considC'r.J.tion of thC' markedly contr.J.dicta. ry and convolUlC'd nalUrC' of mC' evidC'ncC' bC'.forc me CommittC'C'". thC' respondC'OI attornC')' and mC' Executive Director undC'rtook discussions which haVe' resu.lrC'd in Mr. Patton's agf"C'C'mC'nt to disciplinC' by consent pur· suant to Section 8C. ProcC'dures of the Arkansas Supre'mC' Court Regulating Professional Conduct of AttornC'ys at Law. Upon considC'ration of the formal complaint, thC' anorney's response, thC' mattC'rs presentC'd in thC' evidC'miary hC'aring. and the tC'rms of the proposed consem to disciplinC' hC'rcinanC'r St:uC'd. the CommittC'C' on Professional Conduct finds: 1. On occasion, prior to and on August 12, 1992, Mr. Panon advised his thC'n cliC'nts mat mC'rc was no apprC'Ciable valuC' in thC' minC'n.! rights of«min rca! property for which Mr. Patton had undC'rtakC'"rt to effect a we for the benefit of his clients. His clients' intC'rest in the rca!ty was convC'")'td on August 12, 1992, with no panicular part of me purch~ pritt anributC'd to me mineral rights. On September 9. 1992. approxim:udy one month mC'r the sale of the clients' property imer· ests. the attomC')' C'ntetC'd into a ftt agtC'C'ment with thC' purchaser to provide legal services in connection with the property and for which a portion of thC' attornC')"s fC'C'" was to be a conveyance of thC' minC'ral rights in thC' property to the attornC')'. The conscience and deliberate acquisition by Mr. Patton of his former c1icnts' prior mineral interests in such close proximity to the time of thC'ir diVC'Stiture of that inletC'st beliC's thC' lawyer's state· mC'nts and rcpresenrations to thC'm that the mineral rights did not merit anention. II must appear obvious that thC' laW)'C'r placed somC' indC'pendC'nt value on mC' potential of the miner:.tl rights or else he would nO[ have gonc through me drom for the SC'VC'rance and acquisinon of those rights. 2. Mr. Panon's conduct as descrilKd above violates Model RulC' 8A(c). Arbnsas Model Rules of Professional Conduct. Rulc 8.4(c) States. in pertinent part, that it is professional misconduct for a lawyC'r to engagco in conduct involving dC'CC'it or mistC'presentation. WHEREFORE, in accordance with the consent to disciplinC' presentC'd by Mr. Patton and the ExecutivC' DirC'Ctor, it is the decision and order of the Arlunsas Supreme Court Committe'e on Professional Conduct thai JOHN WILLIAM PATrON, IV, Arkansas Bar 10 #84119, be, and hereby is, REPRIMANDED for his conduct in mis matter.

Willard Proctor, Jr. LirdC' Rock, AR March 19. 1999 The formal charges of misconduct aro~ from the Complaint of Dcxter Roscby. Willard Proctor, Jr.• AnotnC')' at Law, LittlC' Rock, Arbnsas, was employC'd in January 1996 to represent Mr. Roscby in a criminal procC'C'ding. Mr. Roscby was charged with capital murder in the shooting death of Ltt Byrd, a crime for which he was later convictC'd. Mr. Proctor acknowlC'dges that he was initially conDetcod by members of Mr. Roseby's family about the criminal charge and thetC'after was rcwnC'd to dC'fC'nd Mr. Roscby. During one of their initial men.iogs, Mr. Roseby provided Mr. Proctor wim the names of witnesses who cou.ld offer testimony as to his whereabouts on the day me deceased was shot. In addition. Mr. RosC'by providC'd Mr. Proctor with the locarion of rwo gas stations whetC' he had bC'C'n on the day the victim was shot. It was Mr, Roseby's belief that me gas Stations might have him recorded on the tapes from the security cameras. ThefC' 'wetC' also twO codC'fendants chargC'd with Mr. RoSC'by in the capital murder. Both of the co-defendants gave statements when arrested implicadng Mr. Roseby. Although Mr. Procror had this information available to him. he did not contact the potential witnesses nor did he contact the gas stations to tC'ViC'W the tapes from the SC"Curity camera. Further, despite: being served wim a Motion for Discovery by the prosecution, Mr. PrOctor never provided the names of any possible defeltS(: wimcsses in respoRSC' thereto. Mt. Proctor admits his understand· ing that Mr. Rosd>y might want to call alibi witnesses but Mr. Proctor had hopC'd to bC' able to show that me ScatC' EUIC'd to meet its burden without 21ly testimony from the defense being nC'CC'SSary. In addition. ane'r in,·c;nigation. Mr. Proctor determinC'd mat any alibi wimesses would only have pUt his client in a place other than me crime scenC' ",-coU bC'fotC' or aftC'r the murdC'r but nOt at mC' timC' the shooting occurred. HC' also made the samC' decision about what the' security came'r.J. tapes would be ablC' ro demonstrate. At the dose of the State's evide'nce in Mr. RoSC'by's jury trial. Mr. Proctor made a Motion for Directed Verdict, The Motion was nOt made with the necessary thoroughness and specificity. Ai> a result of his fililure to be thorough and specific, on appC':l.l the Arkansas Supreme Court rulC'd that thC')' wetC' prevenrC'd from tC'"ViC'Wing the sufficiency of the evidencC' presenrC'd by thC' State in Mr. Roseby's capital murder trial. Upon considef:uion of the formal complaint and response herC'in, the Committee on Professional Conduct finds: I. That Mr. Proctor's conduct violatC'd Model Rule I. I. Arkansas Model Rules of Professional Conduct, when he f.t.i1C'd (Q contxt any of me various aI ibi witnesses, during his preparation for trial; when he fa.ilC'd to contact the service stations to review me security camera tapes made the day of the shooting; when he f.t.i1C'd to provide the names of possible defense wit· nt'SSeS to the State in response to me Motion for Discovery; when he failed 10 subpoena any witnesses on his client's behalf even though he was facing the charge of capital murder; and, when he failed to be thorough and specific in his motion for dirC'Cted verdict at the dose of the Stare's evidence thereby prcve'ming the

Arkansas Supreme Court from reviC'Wing the sufficiency of the cvidC'"rttt presented by the State in Mr. Roseby's capital murdC'r trial. Model Rule 1.1 rcquires. in pertinent part. that a laW)'C'r shall provide competent representation [Q a client. including the thoroughm:ss and preparation reasonably necessary for the representation. 2. That, from January 1996 through October 1996. when Mr. Proctor failed to COnt'3ct any of the potential alibi witnC$SCS and did not atte'mpt ro conract anyone to obtain copies of thC' tapes made with the security video cameras. and. when he failed. from May 1996 through October 1996. to advise the proSttUting attorneys of the names and addresses of possible defC'f1SC': witnesses. he violated Model Rule 1.3, Arkansas Model Rulc:s of Professional Conduct. Model Rule 1.3 rcquires that a lawyc'r shall act with tC'a5OnablC' diligC'nce and promptness in tCptC':SC'nting a client. WHEREFORE, it is the dC'Cision and order of mC' Arbnsas SuptC'me CoUrt ComminC'C' on Professional Conduct that Willard Proctor. Jr., Arlunsas Bar 10 187136, be. and here-by is. CAUTIONED for his con· duct in this manC'f.

WUJard Proctor, Jr. Little Rock. AR March 19, 1999 The formal chargc:s of misconduct arose from an advertisement placed on the internet by Willard Proctor, Jr., Attorney at Law, Litde Rock. Arkansas. The advertisemenr containC'd the following: ~WLllard Proctor, Jr. & Associate'S. Specializ..ing in Personal Injury, Criminal. and Bankruptcy. ~ The Arkansas Suprcme Court has not rC'Cognited a plan of specializa-

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til\\}PI' tion for any of thl:' :tros ml:'ntioned. Mr. Proemr admits the condun but St:l.les th:tt he did not intend to mislead the public imo believing thai he was a specialist in the areas ofbankruprcy. criminal law. or pcorsonal injury cases. By using the words ~specializ.ing~ and "specializes," Mr. Procmr imended only ro givc porcnrial diems a benet idea of the rypes ofcases thai he handl<d. Upon considerarion of the formal complaint and responsc herein, the Committee on Professional Conduct finds: I. That Mr. Proctor's conduct in this maner violated Modd Rule 7.4(c), Arkansas Model Rules of Professional Conduct, whcn he placed an advertiSC'~ mcm on the imcrnet which contained the words "spc'~ ciaJizing" and "specializes" in pc'rsonal injury, criminal, and b:mkruprcy maners even though Arbnsas Supre:ffic Court has not recognittd a plan of speeializ.a· tion in any of the atelS listed in his advertisement. Model Rule 7.4(c) requires, in pertinent part, that a lawyer s.hall not state or imply thai the lawyer is a specialist except when he or she has betn m:ognized as a speeialisl under the Arkansas Plan of Speeializ.alion approved by the Arkansas Supreme Coun. WHEREFORE, it is the decision and order of the Arkansas Supreme CoUrt Commin~ on Professional Conduct thai Willard Proctor, Jr., Arkansas Bar 10 #87136, be, and hereby is, CAUTIONED for his con· duct in this maner.

me

Gregory E. Bryant Litlle Rock, AR March 26, 1999 The formal charges of misconduct arose from the Arkansas Supreme Coun case of AltridAI Muhammad v. SrAU ofArkA1U4S. CR97·t048, and, from information provided by Aloicia Muhammad. Ms. Muhammad hired Gregory Bryant, an attorney practicing in Little Rock, to represent her after she was charged with Possession of a Conuolled Substance, Crack Cocaine, a

Disriplillill')' .\l't ions

Class C Felony. Mr. Bryam represented Ms. Muhammad through the jury (rial wherein she was found guilty. Mr. Bryant admits repr~ming Ms. Muhammad but explains that she was previously represented by other counsel with whom she was upset b«:ause of that counsel's failure to prepare a bona fide defense to her charges. There is no dispme that following the jury verdict an appeal bond of $25,000 was set, which Ms. Muhammad posted. Ms. Muhammad averred that the dar following the jury verdicl, Mr. Bryant informed here that he would not pay the cost of the transcript h«2use she did not pay Ihe $2,000 balance of his fee. MI. Bryanl has no recollection of this. Statement, but he does admit that it is his praCtice to tell clients that it is the client's obligation to pay the COSts of all trial transcripts. Assuming that Ms. Muhammad could and would pay the transcript costs, Mr. Bryant filed a time· Iy orice of Appeal and ordered the transcript. Although Ms. Muhammad advised that she informed. Mr. Bryant on severaJ occasions that she was trying to come up with the money to pay for the transcript, Mr. BI)':l.nt explains that Ms. Muhammad made no effort to pa)' for the transcript. A Hule over rwo (2) months from the filing of the Notice of Appeal, Mr. Bryant filed with the trial court a Motion for Declaration of Indigency or in the Alternative Motion [0 Be Relieved as Counsel. Both requests for relief were denied the day after the Motion was filed. Mr. Bryam admits that he tOld Ms. Muhammad that her appeal was over because the Judge had denied the request for indigent stams. Mr. Bryant explains that this was not an intentional misrepresentation but was caused by his f.lilure to adequately review the appellate rules. Ms. Muhammad was also advised to !Urn herself in, which she did. After much research about what remedies were available to her, Ms. Muhammad filed a Pro Se Motion for Rule on the Clerk to Procttd with Belated Appeal. The Arkansas Supreme Coun gramed the Motion in a Per Curiam Opinion wherein the Court also directed Mr. Bryant to appear before them to show cause why he

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should nOt be held in contempt for his f.lilure ro perfect Ms. Muhammad's appeal. Mr. Bryam appeared and entered a guilty plea to contempt for failing to perfect the 2PpeaJ. Mr. Bryant was fined $250 as a result of his contempt. Upon considerarion of the formal complaint and response herein, the Committee on Professional Conduct finds: 1. ThaI Mr. Bryant's conduct violated. Model Rule 1.1, Arkansas Model Rules of Professional Conduct, in that, his. failure to file the ~Motion For Declaration of Indigency Or In The Alternative, Motion To Be Relieved As Counsel" in the coun of proper jurisdiction. i.e. the appellate court, demonstrated a lack of thoroughness in h21ldling Ms. Muhammad's appeal. Model Rule 1.1 requires, in pertinent part, thaI a lawyer shall provide competent represcnt:llion to a client, including the thoroughness reasonably necessary for the representation. 2. That Mr. Bryant's conduct violated Model Rule 1.3, Arkansas Model Rules of Professional ConduCt, by fiailing to timely file any motions and/or pleadings in a court of proper jurisdiction necessary to perfect Ms. Muh2mmad's criminal appeal. Model Rule 1.3 requires that a lawyer shall act with reasonable diligence and promptness in representing a cHen!. 3. That Mr. Bryant's conduct violated Model Rule 3.4(c), Arkansas Model Rules. of Professional Conduct, because he fuiled to perfect a criminal appeal for Ms. Muhammad despite the requirement of Rule 16 of the Rules. of Appellate Procedur~riminal [hat trial counsel, whelher retained or COUrt appointed, shall continue to represent a conviCted defendant throughout any appeal to the Arkansas Supreme Coun, unless permitted by the Arkansas Supreme Coun to withdraw after filing of notice of appeal. Model Rule 3.4(c) requires, in pertinent part, that a lawyer shall not disobey an obligation of a tribunal. 4. Thai Mr. Bryant's conduCt violated Model Rule 8.4(d), Arkansas Model Rules. of Professional Conduct, to wit: (i) The orderly and rimely administrarion and resolution of appellate proceedings were delayed by his filing of the "Motion for Declaration of Indigency Or In The Alternative, Motion To Be Relic:ved As Counsel" in the improper court; by his fuilure to perfect an appeal on his clic:nt"s behalf; by his assertion to his cliem ,hat her appeal was over causing her to begin Pro Se reprc:sentation; and, by the necessity of an order 10 appear and show cause and subsequent comcmpt finding following his appearance and admission of full responsibility to the Court; and, (ii) The Court was required to expend additional time in conducting a show cause hearing which would not have otherwise been necessary, exCC'pt for his F.i.ilure to comply with appellate rules. Model Rule 8.4(d) requires that a lawyer shall not engagt: in conduct lhat is prejudicial to the administration of justice. WHEREFORE, it is the decision and order of the Arkansas Supreme Coun Commiuet: on Professional Conduct that GREGORY E. BRYANT, Arkansas Bar 10 #82024, be, and hereby is, CAUTIO ED for his conduct in this matter.'O


Judicial Advisory Opinions Continued From Pa.ge 38

Sexual Harrassment Continued From Page 37

tionship and the Statutory method. But that opinion involved judicial disqualification in chancery court. Most imponanuy, the statutes do not cover nepotism. The Code of Judicial Conduct is the basis for the restriction on nepotism, and it does not incorporate the natutory method of determining rd2.tionship, but conta.ins irs own definition. In light of the specific language and definition in the Code of Judicial Conduct, we conclude that you may consider the spouse of your fim cousin for appointment without the need to seek the approval of the Judkial Discipline and Disability Commission.

tuted procedures for curtailing the amoum and type of information given to inquiring firms respecting former employees for fear of state tort claims such as defamation. However, conduct which could lead to a retaliation claim is broader than those state claims. For example, an employer who merely communicates the faCt thar a former employee has filed a charge of discrimination may be forced to answer a retaliation claim even though the statement is true. Consequently, employers need to continue their efforts to limit the amount of informarion provided to prospective employers. Of course, other forms of overt harassment should also be avoided, e,g" (I) unreason-

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V Conclusion The area of sexual harassmenr law is an

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ing knowledge of the changes discussed above will substantially assist them in such an endeavor.~ 4, Endnotes I. Some may question my charaaerization of any lega.l process as being a "ga.me." Though I am always o~ to any alternative label, "game" is as an accurately descriptive

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term as any other. To playa game, one must first know who the players are and second, know the rules by which it is played. Once the game is afOOt, participants mUSt be prepared to adjust to rule changes and unfolding factual circumstances and 10 develop and re-define strategies that will, hopefully, carry them to a successful conclusion. Of cou~, in law, panicipanrs define "success" in a myriad of ways beyond simply obtaining a jury verdict. This faa weighs heavily upon a parricipam's strategy and expectations from specific legal proceedjngs, as well as from the legal system in general. Stt Mtritor Sav. Bank, FSB l.'. Vinson, 477 U,S, 57 (1986), In Mmtor, [he Supreme Coun recogniud. for the first time a cause of action under TItle VII of the Civil RighlS Act of 1964 ("To de VlI") for "sexual h...ssment'" as a form of gender discrimination. Su Muitor Sal.'. Bank, FSB, supra; Harris v. Forklift ,!,mns, Int" 510 U,S, 17 (1993); Landgraf v. USI Film Products. - U.S. -, 114 S, Cr. 1483 (1994); antal, v, Sundow!Jtr Offihort Strvicrs, Inc., 523 U.S. -,118 S, Cl. 998 (1998); Famgh" v. City of Boca fIR/Oil, - U,S, -, 118 S, C" 2275 (1998); Burlington Jndustri~s Inc. l.'. Elkrth, - U,S, -, 118 S, C" 2257 (1998); also, Gtbstr l.'. Lngo Vista hukp. School Disl.• U,S, -, 118 S, C" 1989 (1998) (addressing the issue of sexual hal1l.ssmenr as a violation of TItle IX of the Civil Rights Act which prohibits sex discrimination in public educarion); JOllt.r v. eHmon, - E Supp -. 1998 WL 148370 (April I, 1998, E,D, Ark,) (imeresting discussion of lower coun opinions which have inferred from Supreme Court decisions that sexual harassmem committed under color of state law violates the Federal Constitution's 14th Amendmenl Equal Proreaion Clause). 510 U,S, 17, Stt discussion infra. For a discwsion of the general legislative and cultural c1imare, as well as the C"'enlS SauaJ Harrassment Continued on Page 46

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Sexual Harrassment Continued Fwm Page 45

7.

8. 9. 10. 11.

12. 13. 14. 15. 16.

18. These factors are as follows:

leading to the passage of the 1964 Civil RighLS Aa, su gma-a/ly, H.D. Graham, Th~ Civil Rights Era (Oxford University Press 1990) pp. 125-254. Su Miller v. Maxwdl's 1m'l, Inc., 991 F.2d 583, 588 (9th Ci" 1993), em. dmicd, 117 S. Ct. 1109 (individuaJs cannot be held liable for damages under lide VII); Grant v. Londta, Co., 21 F.3d 649 (5th Ci,. 1994), cert. dmi~d, 513 U.S. 1015; HaJ~s v. WiUiams, 88 F.3d 898 (10th Ci" 1996); su also, Wathm v. Gma-al Ekcrric Co., 115 F.3d 400, 405 (6th Cit. 1997) (individual employee/supervisor who is not otherwise an "employer" is not liable under TItle VlI); Williams v. Banning, 72 F.3d 552, 555 (7th Cir. 1995) (no individual liability under Title VII); Bonomolo-Hagm v. CIn} CmtralEva-Iy Community School Dist., 121 F.3d 446, 447 (8th Ci,. 1997) (supeevisms cannot be held individuaJly liable under Title VlI); Gary v. Long, 59 F.3d 1391, 1399 (D.C. Ci,.), em. tknicd, 116 S. Ct. 569 (I995) (individuaJ supervisors are not individually liable under Title VII). 28 F.3d 446, 451 n2 (5th Cit. 1994), overruled on oth~r grounds. 842 F.2d 1010 (8th Ci,. 1988). 560 F.2d 389, 391 (8th Ci,. 1977). Section 2000e(b) provides that: "the term 'employer' means a person engaged in an industry affecting commerce who has 15 or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar yeas." 519 U.S. 202,117 S. Ct. 660 (1997). Su discussion infra. 519 U.S. -, 117 S. Ct. at pp. 664-65. 42 U.S.c. ยง 1981a (West 1998). 42 U.S.c. ยง 198Ia(b) (West 1998). Subsection (b)(3) of the Act provides the following statutory limitations: (A) (B) (0 (D)

Employers with Employers with Employers with Employen with

15 ro 100 employteS - S5O,000 101 to 200 employ=l' 5100,000 201 10500 employca - $200,000 SOl Of more employ=l- 5300,000

17. 42 U.S.c. ยง 2000e(f) (West 1998).

(I) Whether and the atent the employer has the "right of con[JOl~ over the person, ~.t. when, where and how the work is perfonncd; (2) Whether or nOt the work performed by the person requires high IcvdJ of $kiIl; (3) Whether the employer fumisheli Ihe rools, materiab and equipment necessary to perform the person's job; (4) Whether the job i$ performed on the employer'$ premisc:s; (5) Whether there i$ a continuing relationship betwttn the person and the employer, (6) Whether the employer ha.s the right 10 assign additional projccu 10 the worker; (7) Whether the employer KU the hours of work and me duration of the job; (8) Intent of the employer and pc:.rson providing $C'rvica; (9) Whether the work performed by the person i$ pan of the employer's regular bwiness; (0) Whether the person ha5' any role in me hiring, firing and/or paying of assistants; (I I) Whether the person is a business entiry, r.g. partnc:rship, limited liability company, etc; (2) When is pel'$On paid; (13) How is the pel'$On paid; (14) Whelher the person is en~ged in his or her own distinct occupation or bwiness; (5) Whether the employer is a distinct business; and (16) Whether the employer ha5' the right to fire the person perfonning the job and/or WI person'$ assisunu.

19. 20. 21. 22. 23. 24. 25. 26.

27.

28.

767 F.3d 745 (4,h Cir. 1996). - U.S. -, 118 S. Ct. 998 (1998). 28 F.3d 446 (5th Cir. 1994). 72 F.3d 1191 (4,h Cir. 1996). 99 F.3d 138 (4th Ci" 1996), cited in Gnaci<, 118 S. Ct. at p. 100 I. 119 F.3d 563 (7th Cit. 1997). - U.S. -, 118 S. Ct. at pp. 1001-2. It!. at p. 1002. 490 U.S. 228, 109 S. Cr. 1775 (1989). Female employtt, who was told she needed to act and dress more feminine, among other things, was denied a promotion to partnership status and sued for sex discrim~ ination. In its decision, the Supreme Court made it dear that Title VII does not permit an employee to be treated adversely because he/she does not fit a particular gender stereotype. 119 F.3d 563 (7th Cit. 1997) (COUrt ruled that a man harassed because of his high voice, earring, long hair and other charac~ teristics that did not mttt his co~workers' ideal for masculinity stated a claim under

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29. 30. 31. 32. 33.

34. 35. 36.

37.

38.

39. 40.

Tide VII). 950 F. Supp. 1375 (N.D. III. 1997). 125 F.3d 1366 (lOth Cir. 1997). 477 U.S. 57 (1986). 53 F.3d 1531 (10th Cit. 1995). Id. 1998 WL 148370 (Aptil I, 1998, ED. Ark.). 122 F.3d 1107 (8th Cit. 1997). Hathaway v. Runyon, 132 F.3d. 1214 (8th Cit. 1997). Compare the facrs of HarriJ with the allegations in Kimuy v. Wal-Mart Slam, Inc.โ€ข 107 F.3d 568 (8th Ci,. 1997). In Kimuy, the plaintiff aJleged that her supervisor and manager engaged in abusive and offensive conduct such as kicking her legs, referring to her and orner workers as "mother-f-ers," "lazy sons of a bitches" and referring to female employees' "tight~ass jeans" when they wauld bend aver. !d. at pp. 571-72. Gil/ming v. Simmons /ndwtrin, 91 F.3d 1168 (8th Cit. 1996), citing, Kopp v. Samaritan Health Sys. Inc., 13 F.3d 264, 269 (8th Cir. 1993). 79 F.3d 996 (10th Cir. 1996). Hathaway v. Runyon, 132 F.3d 1214 (8th Cir. 1997) (a single offensive utterance or exposure to distastefUl conduct does not rise to the level of a litle VII violation). 985 F. Supp. 385 (S.D.N.Y. 1997). 86 F.3d 167 (10th Ci" 1996). 66 F.3d 1295 (2d Cit. 1995). 780 F. Supp. 755 (D. Kan. 1991). - U.S. -,118 S. Ct. 2275 (1998). - U.S. -,118 S. Ct. 2257 (1998). Elkrth, 1998 WL 336326 at p. 8.

41. 42. 43. 44. 45. 46. 47. 48. S~~ ~.g.. Williamson v. City O/Howlon. supra. 49. Id. 50. Id. at pp. 20-21. 51. 148 F.3d 462 (5th Cit. 1998). 52. 828 F.2d 307, 309 (5th Ci,. 1987). 53. 77 F.3d 777 (5th Cir. 1995). 54. 519 U.S. 337,117 S. Ct. 843 (1997). 55. Robinson, 117 S. Ct. at p. 848-49.

Shawn Twing graduated with honors from the Universiry of Arkansas Law School in 1993. He practices in the area of labor and employment law with an emphasis on civil litigation and is associated with the Amarillo, Texas, law fitm af Sprouse, Smith & Rowley, l~ C.


III \1l'llllH' iilIlI Jon Coleman

Jonesboro. Arkansas Jon Coleman, 52, of Jonesboro, died recently at his home. Born in Hattiesburg. Mississippi, he lived in Jackson, Mississippi. before moving [Q Jonesboro in 1954. He was a partner in Bradley-Coleman Law Firm in Jonesboro, served 7 1/2 years in the Arkansas National Guard and was a member of Southwest Church of Chrisr. He was a graduate of Jonesboro High

School and attended Freed-Hardeman Universio/ in Henderson, Tennessee. before uansferring to Harding University, where he received an undergraduate degree. He earned a law degree from the University of Arkansas and a master's degree from University of Memphis. A member of the Board of Directors of Arkansas Glass Container Corporation of

me

Jonesboro. he was a member of the Arkansas Bar Association, the Craighead

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VOL.34_NO.3_SUMMER 1999