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SPECIAL

Focus ON CML RIGHTS

Why We Need Hate-Crime Ugislation in Arkansas: Stopping Bias-Motivated Violence Racial Profiling: A Disgrace at the Intersection of Race and the Criminal Justice System

The Duty to Protect Under the Arkansas Civil Rights Act Book Review: Whiteness of a Different Color


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Arkansas &lr AssociotioFl Phone: (501) 375-4606 Fax: (501) 375-4901 Homepage: www.arkbar.rom E-Mail: pjones@arkbar.rom EDITOR Pal fotles GRAPHIC DESIGN Sara umdis

EDITORIAL BOARD David H. Williams. Chair Wiley A. Branton Thomas M_ Carpenter jacqueline J. Cravens Morton Gitelman James c. Gra\res Lucinda McDaniel Stuart P. Miller Jacqueline S. Wright OFfJCERS President Ron D. Harrison President-Elect

on en s VOLUME 36,

UMBER 2

Features 10 The Duty to Protect Under the Arkansas Civil Rights Act

by Chris Lisle

Sandra Cherry Immediate Past President Louis B. (Rucky) Jones. Jr. Secretary 路T~asurer William A. Martin Frederick S. Ursery

Racial Profiling: A Disgrace at the Intersection of Race and the Criminal Justice System

Parliamentarian Gwendolyn D. Hodge

by Jack Kearney

Board of Governors Chair

Young Lawyers Section Chair R. Scott Zuerker Executive Director Don Hollingsworth

26

Associate Executive Director judith Gray

Searching for the Circuit Judges of Sebastian County

BOARD OF GOVERNORS William M. Clark. Jr. Murray H. Clayromb F. Thomas Curry Thomas A. Daily Elizabeth Danielson Kay West Forrest Lance B. Gamer Dave Wisdom Harrod Philip E. Kaplan Knox B. Kinney Edwin N. McClure l...ance R Miller Marie-Bemarde Miller Charles C. Owen

James M. Simpson, Jr. James D. Sprott Danny Thrailkill

liAISON MEMBERS Alice Holcomb H. William Allen Donis B. Hamilton Judge james H. Gunter. jr. Carolyn B. Wilherspoon jeffery E. Hance TIsr Art",nSltfl..lrwya (USPS ~ is publishl.'d quarterly by the Al'bnsas Bar Assodation. Periodicals postage P'kI at UttJe Rock. Arkansas. I>QSTMASTER: send address changes to TIr" Arbn$ll$~. 芦Xl \AlesI M拢rkham. Uttle Rock. Arkansas 72201. Sub!lcriptioo price to non-members of the Arkansas Bar AS!iOdation moo per year. Anyopinion exp~ ht-rein is that of me author, And not neces&arily that of the Arkansas Bar Association or n,ll Arkllll$IU' t",wl/ll'. Contributions to llrl' ArkRn'II' tRwl/llr are wekome and should be 5l.'I'It in two copies to EDITOR. Tht Arkan.sa. l.JlTVyn, <tOO West Markham. UUIe Rock. Arkansas 72201. Alllnqulrics regardins advertising should be sent to Editor, TIrIl Arka"'slIs tRwytr at the above address. Copyright 2001, Arkansas Bar As5ociation. All rights ~路ed.

20

by Judge Jim Spears

28 Why We Need Hate-Crime Legislation in Arkansas: Stopping Bias-Motivated Violence

by Mark Pryor

34 A Gap in Coverage? An Employer's Liability for on Compensable Job Site Injuries to Employees by Eldon F. Cojfinan and David Schneider

On the Cover: Blind Justice Contents Continued on Page 2


Contents VOLUME 36, NUMBER 2

In This Issue 38 President's Report, by Ronald D. Harrison

Judicial Advisory Opinions

Executive Direcror's Report, by Don Hollingsworth

Judicial Disciplinary Acts

15

41

2000-200 J Sustaining Members

CLE Calendar

17 Book Review

Lawyer Disciplinary Actions

by John DiPippa

18 Law Office Technology, by Jeanette Hamilton

In Memoriam

56 Classified Advertising/ Index ro Advertisers

YLS Section Report,

by Mark Hodge and Paul Dumas ARKANSAS BAR ASSOCIATION 400 W. Markh.m little Rock, Ark.nsas 72201 HOUSE OF DELEGATES

Delegate District I-SE: Ray Allen Goodwin Delegate District 2-5E: Henry H. Boyce. Mark R. Johnson, Katharine C. Wilson Delegate District ]-5E: Cindy Thyer, Michae.l E. Mullally, Paul D. Waddell Delegate District 4-5E: Bill E. Bracq, Jr. Delegate District S-SE: William C. Ayers, James Bradley Delegate District 6-SE: Michad L Ladd Delegate District 7-5E; Donald E. Kce Delegate District 8-SE: Howard L Martin Delegate District 9路SE: Charles E. Halbert. James Pal Flowers Delegate District 10-SE: David R. Bridgfonh, William Kirby Mouser Delegate District II-SE: Paul W. Keith Delegate District 12-SE: Paul D. Selby Delegate District IJ-SE: Walter K. Compton, Steve R. Crane, Brian H. Ratcliff Delegate District 14路SE: Frank A. PofT, Christie Adams Delegate District IS-SE: Barry D. Barber. Todd M. Turner Delegate District 16-SE: Shannon M. Carroll, Ronald D. Kelsay Delegate District 17-SE: Yolanda L. Dreher Delegate District l-NW: Edwin N. McClure, Glenn E. Kelley, Hardy W. Croxton, Jr., George R. Spence Delegate District 2-NW: James M. Graves, Donna C. Penus, Kathryn E. Plan, Ernest B. Care. Boyce R. Davis, April M. Rye. Shannon L r"ant. Raymond L. Niblock, Steven S. Zega Delegate District J-NW: Niki Cung, J. Marvin Honeycutl, Claude S. Hawkins, Jr., Wyman R. Wade, Jr., Eddie H. Walker, Jr., Shannon L Blan, Timothy C. Sharum Delegate District 4-NW: Daniel B. Thrailkill Delegate District S-NW: Gordon Webb Delegate District 6-NW: Hugh R. Laws, John T. Tatum, David L. Eddy Delegate District 7-NW: H.G. Fost'er, Danny M. Rasmussen Delegate District 8-NW: Jerry D. Pam:l'$On Delegate District I路e: Anthony W. G. Black, Shannon L. Boy, Brad Hendricks, William O. James, Jr., James L. Julian, Stuart P. Miller, Todd Wooten, Gwendolyn D. Hodge, Ron A. Hope, Philip E. Kaplan, Harry A. Light, Stark Ligon, William A. Martin, Charles C. Owen, Charles L. Schlumberger, Don K. Barnes, Elizabeth A. Thomas, Marshall S. Ner, Melva J. Harmon, John C. Wade, Jeff Broadwater, Marcella J. Taylor, Reed R. Edwards, M. Stephen Bingham Law Student Representatrves: Valerie Glover, University of Arkansas School of Law; Brandon Meadows, UALR William H. Bowe.n School of Law

t

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"路MlI'.arklar.rol


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.. . And the Dream lives On Ronald D. Harrison <ITalk about a dream, try co make it real." -Bruce Springsteen here did it go? The time. The year. How is it possible that an emire year has passed? There remains much to be done-though you have accomplished so much. I will return to this thought, but first and foremosr Rebecca and I rhank you. Thank you for allowing me CO serve, for

W

permitting us to be the hosts on behalf of the Arkansas Bar Associarion this year. Thank you for the memories and the

friendships made, for the challenges confronted, and for your gracious help and

encouragement. I thank each of you who has tirelessly served our profession through your good works on behalf of rhe Association. I cannQ[ record the names of each of you who could he included, but there are a few I simply must noce: Fred Ursery,

Chairman of the Board of Governors, Presidenr-Elecr Sandra Cherry, Judge Henry Jones, Judge Andre Roaf. Judge John Srroud, Prof. John Warkins, Bill Bridgefor<h, Brian Rarcliff, Prof. Cynthia Nance, Alice Holcomb, Jim Julian, Jim Simpson and Stark Ligon. These are but a few of the volunteers who have made a difference. You already know how I feel abour the scaff who provides dedicated service every day: Don, Judith, Barb,

Virginia. Joyce. Becky, Diane, Rando, Michelle, and now Pat and Vicki. Each represems our Association in exemplary fashion. Rebecca and I will always appreciate what you have done for us and your friendship. This year the Arkansas Bar Association

through its volunteers and staff, and with the help of many others, has seen the

restructure of clle Judicial Anicle of the state constitution by the passage of Amendmem 3 (now officially Amendment 80) which provides for non-partisan

election ofjudges and for the merger of law and equity. A rruly firsr class judges and

lawyer assistance program has been approved and is now in place. AJso on the Petition of the Association the Arkansas Supreme Court has modified our bar examination and provided for changes in our systems for admission and discipline of attorneys in the State. The changes approved for me re-organization of our governance structure have been implemented and another legislative year has been completed (the session has nOt concluded as this article is being wrirren and I would not hazard a guess as to the outcome). We worked on a committee established by the Supreme Court ro draft modifications to rules and new legislation for the implementation of Amendment 3. NI of this and the work of the Association continues, including the day to day demands and a review of new and emerging issues such as the Ethics 2000 report of the American Bar Association, a new "professionar designation labeled the "cognitor" proposed by the AlCPA and others and the continued presence of questions regarding Multi-disciplinary Pracrices(MDP}, ro lisr bur a few. Finally, and to me the mOSt imporcant, we established the Arkansas Bar Commission on Diversity to encourage and advance diversity first within the Arkansas Bar and men within the profession in Arkansas, generally. NOt a bad year. You can and should be quite proud of what you have accomplished this year. In my first President's Report, I spoke of ou r need to have the Arkansas Bar Association look more like America. Some modest progress has been made to that end. We are having a conversation about race in this state. We are also taking action to address racial issues within me state. Our Mid year Meeting program segment on civil rights, jointly sponsored with the W Harold Flowers Law Society at the National Civil Rights Museum In Memphis, wirnessed an audience who

packed the lecture hall. Much, much more will be done. I suggested in my second report that even in the face of the very difficult problems which surround issues of race in America, we are limited in what we can accomplish only by our reluctance at times to believe we can do great things. We are reminded in Hamlet that "(w)e know what we are, but know not what we can be." The challenge continues, and the dream lives on. We have formulated ideals, born of what we believe ... of what we profess. Of such things President John F. Kennedy in a speech given in Germany in 1963 said, "(s)o we are all idealiStS. We are all

visionaries. Let it nor be said of the Atlamic generation that we left ideas and vistas to the past, nor purpose and determination to our adversaries. We have come too far, we have sacrificed tOO much to d.isdain the future now. And we shall ever remember what Goethe told us-that the 'highest wisdom, the best mankind ever knew' was the realization that 'he only earns his freedom and exiStence who daily conquers them anew." The challenge persists, and the dream lives on.

We are, for our Association, taking essentially unprecedented Steps to look and be more like America. It is our renewed beginning and we must "daily conquer ... anew" the challenges and the obstacles which would discourage us-which would diminish our effons. Your caBs, comments, and notes supporting the work of the Association on diversity are appreciated, but more importantly they confirm the goodwill of members of the

Arkansas Bar Association and their dedication to the dream. We can make a d.ifference. Each of us can be an ambassador on See PreIIdInt'llIlllIOI'l Continued on Page S6

I'll. 1I XI. lIS,ri1f tiD I ne ,Irklllll LIMIer

I


Plan to Attend

The 103rd Annual Meeting Arkansas Bar Association The American Boa.rd of Trial Advocates (ABOTA) developed the Masters in Trial program in 1991. Since then, over 100 erial demonstrations have been presented

[Q

audiences around the United States.

You will watch a trial demonstration

presented by six plaintiff trial team members and six defense trial team members. The mock trial is presented before United Stares District Judge James M. Moody. Following examination of witnesses and arguments by members of the trial teams, you'll see and hear the actual jury deliberations, video cast live to the audience.

This semmar will teach by example, with a preemment faculty demonstrating differing styles. You will learn from the nation's finest trial lawyers, all well known leaders in their fields. At the end of the day, you will walk away with many ideas you can use in your own trials; from opening statements through

John V. Phelps President, Arkansas Chapter ABOTA

closing arguments. ABOTA is dedicated to preserving the 7th Amendment right to civil juty trial. Founded in 1957, ABOTA has over 4100 members nationally,

with 62 members in the Arkansas Chapter, almost evenly divided between the James M. Moody,

plaintiff and defense bars.

By imposing high membership standards, ABOTA,

United States

District Judge, Presiding

made up of some of the leading trial lawyers in America, has earned the reputation as the "best of the best. n

Masters in Trial Friday, June 15 • 8:30 a.m. - 5: 15 p.m. 8:30 a.m. Plaintiff, Defense:

OPENING STATEMENT

Patrick C. Simek, Lubbock, TX Lewis R. Sifford, Dallas, TX

9: 15 a.m. ExAMINATION OF PLAINTIFF Direct: Grady F. Tollison, Oxford, MS Cross: Dennis J. Sinclitico, Los Angeles, CA Re-Direct: Grady F. Tollison, Oxford, MS

12:45 p.m. Direct: Cross:

1:30 p.m. Direct: Cross:

2:30 p.m. \0:

\5 a.m.

ExAMINATION OF PU.JNTIFF'S ACCIDENT RECONSTR CfION ExPERT

Direct: J. Craig Lewis, HoustOn, TX Cros", W. Scon Welch, LlI, Jackson, MS Re-Direct: J. Craig Lewis, Houswn, TX 1\:00 a.m.

PANEL DISCUSSION ON STRATEGY AND TECHNIQUE

ExAMINATION OF DEFENOANT

Joel W. Collins, Jr.. Columbia, SC Alice Oliver-Parrott, Houston, TX ExAMINATION OF POLICE OFFICER

Charles W. Salley, Shreveport, LA D. Reece Williams, III, Columbia, SC CLOSING ARGUMENTS

Ron J. Perey, Soarde, WA Richard J. O'Keeffe, While Plains, NY Rebuttal: Ron J. Perey, Soarde, WA Plaintiff. Defense:

3:30 p.m. 3:45 p.m. 4:45 p.m.

J

RY INSTRucnO S

JURY DElIBERATION (LIVE) PANEL DISCUSSION ON STRATEGY AND TECHNIQUES

June 13-16,2001 • Hot Springs, AR


hl'l til ill' llin'llm'" III'pm'\

The Decline of the Lawver Legislator Don Hollingsworth E-mail: dhollingsworth@arkbar.com requently I hear friends and acquaintances remark that lawyers dominate the ranks of the Arkansas asked the Legislature. When percemage of lawyers serving in our state legislature, their responses range from 30% to over 50%. The reality is much different. There are nineteen lawyers serving in the 2001 General Assembly (nine Senators and (en Representatives), Thus, lawyers comprise only 14% of the 135 Senators and Representatives. In the House, only 10% of the Representatives afC lawyers. Twelve lawyer legislators did not return co Arkansas Legislature in 200 I. Since there were only fouf lawyers newly elected to the Legislature this year, there is a nct loss of eight lawyer legislators. (The four new legislators are Senator Alvin Simes and Representatives Marvin Childers. Sam

F me

Ledbener and John VerKamp.) Currendy rhe House Judiciary Commince has only five lawyer members our of20. The Senate Judiciary Committee is composed of seven Senarors, five of whom arc lawyers. If current trends cominue. tcrm limics will further reduce the number oflawyers in the [wo Judiciary Comminees. Arkansas is not alone in the decline of 3norneys serving in state legislatures. In 1995 attorneys comprised 15% of the members in state legislatures nationwide. The percentage in 1976 was 22%. (The National Conference of State Legislarures will have the 2000 figures later this year.) The size of the decrease in lawyer legislators in Arkansas from 1999 to 2001 was impacted by our new tCfm limits. Predictions are that term lim irs will cause another significant reduction in the number of lawyer legislacors in 2003 and 2005. (Among the nineteen states with

term limits for Ic:gislacors, Arkansas has the mOSt draconian version. The lifetime limit for service in the House is three terms for a total of six years. In the Senate, the lifetime limit is two terms for a rotal of eight years.) The decline in the number oflawyers in the Arkansas Legislature will not be reversed overnighr. At a minimum, each of us should provide support for lawyers who consider a race for the Arkansas Legislature, including financial and volunteer assistance during the campaign. Even better, I hope you will encourage lawyers with good lawmaking talents to run for the legislature. _

Congratulations to Herschel Cleveland on his e1eaion as Speaker Designate of the House of Represencatives in 2003.

The Arkansas Bar Association is proud 10 recognize Ihe lawvers in Ihe 2001 General Assemblll Senators (L to R): Mike Beebe John Brown Gunner Delay Hike Everett Cliff Hoofman Jodie Mahony David Malone Alvin Simes

Doyle Webb

Representatives (L to R): Jo Canon Marvin Childers Henchel Cleveland Mike Hathorn Russ Hunt Sam Ledbetter Steve Napper Chaney Taylor John VerKamp Shawn Womack


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The DUll to Protect Under the Arkansas Civil Rights Act BV Chris lisle

Chris Lisle has been doing civil litigation in Springdale, AR with the Lisle Law P.A. for eighr He practices with his father, brother and six orner attorneys.

10

The Arkansas l.allIer

IIlIw.arkhar.cum

he Arkansas Supreme Coun recognizes that irs political subdivisions, and other persons acting under color of law, have a limited duty to protcer one person from the injurious acts of another. See

T

Shepherd v. Washington County, 331 Ark. 4BO, 962 S.W.2d 779 (l99B). There are only two reported decisions in which the Court has discussed the parameters of this

dury under the Arkansas Civil Righrs Acr.

Based on those two cases, it appears that Arkansas is essenrially tracking federal court

decisions interpreting 42 USc. ยง19B3, with one significant difference, the standard of carc. As with all tons, a plaintiff must first prove the existence of a duty and breach of that duty. The consrimtional dmy to protect is limited to [wo situations: (1) when there is a "custodial relationship" and (2) when there is a special relationship


created by the fact that a political subdivision or other person acting under color of law affirmatively places an individual in a position of danger the individual would not have Otherwise faced. See Shepherd supra citing Wells v. Walker, supra. There is no duey to protect members of the public at large. See Wells v. Walker, 852 F.2d 368 (8th Cir. 1988) cited by Shepherd supra, at 494. To understand the duey to protect, it is imponant to understand where it originates. The duty to protect originates in Seerion 12-123-105 of the Civil Rights Aer. That section provides a cause of actjon against any person, acting under color of state law, who subjects or causes to be subjected another person to a deprivation of rights secured by the Arkansas Constitution. The Ace states that "[e]very person . . . or any of its political subdivisions, who subjects or causes to be subjected. any person ... to the deprivation of rights, privileges, or immunities secured by the Arkansas Constitution shall be liable to the parey injured in an action at law. " Seerion 16-123-105. The Arkansas Constitution guarantees each of its citizens "certain inalienable rights" amongst which are the right of "enjoying and defending life." Article 2, ยง2. It also guarantees that no person shall be deprived oflife, liberty or property, without due process of law." Article 2, ยง8. Shepherd is the first case interpreting the duey to protect under the Arkansas Civil Rights Aer. Shepherd was decided on a motion to dismiss for failure to state a cause of action. In Shepherd, it was alleged that an inmate in a couney jail, who demonstrated violent psychotic tendencies, was taken to a private medical clinic for treatment. While at the clinic, the inmate disarmed the lone deputy escorting him and killed him with his own pistol. The inmate then attempted to take a patienc, Mrs. Shepherd, hostage. Mrs. Shepherd's husband intervened and was also shot to death by the inmate. The inmate fled the clinic and was confronted by officets responding to 911 calls. The inmate turned the gun on himself and committed suicide. Mrs. Shepherd brought suit against the Couney Sheriff for failing to protect her under the Arkansas Civil Rights Aer. She claimed that the Sheriff's actions in

transponing the inmate to the clinic and failing to adequately restrain him subjected her, and her husband, to a deprivation of their right to life secured by the Arkansas Civil Rights Act. The trial court dismissed the complaint for failing to state a cause of action finding that the sheriff did nOt have a duty to protect Mrs. Shepherd from the criminal acts of the inmate. The Supreme Court reversed and remanded finding that the facts stated in the complaint were sufficient to support a cause of action for violation of the Arkansas Civil Rights Act. In interpreting the Act for the first time in Shepherd, the Court looked to federal cases interpreting deprivations of life and liberty brought under 42 U.S.c. ยง1983. The Court essentially adopted the federal rule that limits the duey to protect ro two situations: (1) where the State actOr assumes a "special custodial or other relationship" with respect to the individual (perpetratOr), or (2) where the state actor affirmatively places an individual (plaintiff) in a position of danger from third parties that the individual would not have otherwise faced. Shepherd, supra, at 498 (citations omitted). The Coun in Shepherd cited with approval the interpretation of the duty to protect found in the Restatement of Torrs (Second) ยง315, which states: There is no duty to control the conduct ofa third person as to prevent him from causing physical harm to another unless: (a) a special relationship exists between the aCtOr and the third person which imposes a duty upon the actor to control the third person's conduer, or (b) a special relation exists between the actOr and the other which gives ro the other a right ro protection. The Coun in Shepherd found the facts plead a duty based on a "special relationship" and a "custodial environment." The "special relationship" was created when the sheriff transported the dangerous inmate to the same clinic as Mrs. Shepherd without taking necessary precautions to protect her. These acts put Mrs. Shepherd in a position of danger. Shepherd at 500. The "custOdial environment" was created when the inmate was transported from the jail to the clinic for treatmenr, effectively "transferring the

Our Constitution guarantees each of its Citizens "cenain inalienable rights" amongst which are the right of "eDioVing and defending life."

nalso

guarantees that no person shall be deprived of life, libenv or propenv, without due process of law.

1'01. l6 ,Yo. 2/Spriog 200 I The ,Irkaosas I,awler

II


custOdial siruation from the jail to the clinic." Sh<plmd at 50 I. Rudd is rhe only other Arkansas case interpreting the duty to protect under the Atkansas Civil Rights Act. In Rudd, a high school srudenr shOt another srudent to death on a school bus. There was evidence of confromation between the two boys. Funher, there was evidence that the perpetrator had a history of violence in junior high. but that the junior high records did not follow him to high school. The family of the deceased brought suit against the school district under the Atkansas Civil Rights Act, alleging the school district failed to protect their son while he was in their custody. The trial coun dismissed the suit on summary judgmem. The Arkansas Supreme Coun upheld rhe dismissal on appeal. \'(That is the difference berween SlupJurd and Rudd' In Sh<phad, the Coun found there was a duty to protect under either rhe "custOdial environmem" analysis or "special relationship tes[." In Rudd, the Coun found neither. In Rudd, the Court diStinguished Sh<phad finding that "the custOdial rdationship between the inmate and the State imposed a dury upon the rare ro prorect third persons from injury inflicted by the inmate who escaped from custody. A prisoner is subjecr to restraims to prOtect the public, and the failure to maimain such restraints may result in liabiliry for injuries to third persons under the Arkansas Civil Rights Act." Rudd at 799. The Coun distinguished Rudd finding that the relationship of a studem to a school bus driver is not he same as that of a prisoner and his warden ... school officials should not be placed in a position where enforcing physical resrraints takes precedence over their primary purpose of teaching ... " Rudd at 799. Rudd also held thar there was no duty to prOtcct under the special relationship test. The Coun found that therc were no facts that the school district had knowledge rhat the perpetrator had been violent in high school. The Coun, in citing Dorothy v. City of Little Rock School District, 794 F. Supp. 1405 (E.D. Ark. 1992), implicitly rejectcd the view that compulsory school arrendance created a custodial environment for purposes of duty [Q prOtect liability, and that simply purring two sfUdents together

It

Til .Irllllil Li~W

~n.arlllrJI.

does not trigger liability under the special relationship rest. There are significant public policy reasons supporting the conclusion in Rudd. Most of the policy reasons are srated in Doro/hy supra. The recognition that relationship between a wardcn and inmate is difFerem frol11 that of a bus-driver and student, and the conclusion that inmates are restrained to protect the public and srudents are not, are all supporred by Srate statute. In Arkansas, sheriff's have a statutory dury to prevent inmates from escaping from their custody. See Ark. Code Ann. ยง14-14-1301 (a)(5) and Ark. Code Ann. ยง5-54 114. Schools, obviously, do not have such a duey and do nor have a statutory dury to restrain students, As a comment, it will be interesting to see if schools putting school safety officers, police officers, into schools changes the custodial aspec, of Rudd.

1aICIl1l11ll11UTY TD PIlOTICT There is a difference in the standard of care for claims brought under 42 U.S.c. ยง 1983 and those under the Arkansas Civil RightS Act. To prove a breach of the duty to protect under 42 U.S.c. ยง 1983, rhe

plaintiff must prove the defendantS were "deliberately indifferent.... For claims under rhe Arkansas Civil Rights Act, the plaintiff must prove conscious indifference.... Siuphad supra at 505. In order to demonstrate that a defendanr acted with conscious ind.ifference, a plaintiff mllst show that the defendanr knew or ought to have known, in the light of surrounding circumstances, that his conduct would naturally or probably result in injury and that he continued such conduct in the reckless disregard of the consequences from which malice can be inferred. Sh<ph<rd at 505 citations omirred. The significa.nce of this difference remains to be seen. In sum, there are many facets of the duty to protect nor addressed in this article. I tried to give and hope that I have, at least, given a good overview and staning point for the reader. There are many federal cases involving many fact situations that our courr has yet ro address. Watching these cases develop will be an intcrestlng devclopmem of this aspect of the law.โ€ข


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MARTINDALE-HUBBELL" A LEXlS'-NEXlS<.dwpComfW'r


~1I1111路~11111\l'kiinsiis Charles Greg Alagood H. William Allen R. Keith Arman Ben F. Arnold Laura Archley Kenneth B. Bairn Charles W. Baker Barry D. Barber W. Chriscopher Barrier Anthony W Bartels Sherry P. Bardey R. T. Beard, III

Paul B. Benham, III Evans Bemon

James B. Blair L. D. Blair Ted Boswell William H. Bowen Roberr B. Branch

Debbie D. Branson Fred E. Briner Jeff Broadwater Edward W. Brockman, Jr. John A. Buckley, Jr. Richard K Burke Julie M. Cabe Roben D. Cabe John C. Calhoun, Jr. Robert M. Cearley, Jr. Jack S. Cherry, Jr. Sandra Wilson Cherry William M. Clark, Jr. H. Murray Claycomb John R. Clayton Randy Coleman Robert C. Compton Barry E. Coplin Ben Core Steve R. Crane

Hugh E. Crisp Michael A. Crockerr James E. Crouch F. Thomas Curry James D. Cypert Thomas A. Daily John A. Davis, III

T. Marrin Davis Robert T Dawson J. C. Deacon Jack W. Dickerson Michelle H. Dillard Philip E. Dixon Lee Douglass Darrell D. Dover Winslow Drummond Davis Duty B. Michael Easley

1Ii11' \ssoriiltion Sustilining 'him 1)Ill'S

John D. Eldridge Don R. Elliorr, Jr. George D. Ellis John R. Elrod Stephen EngS[rom Mi.ke Everett Oscar Fendler Vicco[ A. Fleming Jim Pat Flowers John A. Fogleman Robert M. Ford Kay West Forrest Lance B. Garner

Pamela B. Gibson Sam E. Gibson W. Denr Gitchel Roger A. Glasgow

David M. Glover Charles L. Gocio

Ray A. Goodwin John C. Gregg Ronald L. Griggs

David K. Cunei Michael E. Hale Donis B. Hamilcoll Frank S. Hamlin David K. Harp Kenneth A. Harper Ron D. Harrison Dave Wisdom Harrod

Richard Hatfield William D. Haughr Kyle W. Havner Brad L. Hendricks Sam T. Heuer

Curtis E. Hogue Alice L. Holcomb Alfred J. Holland W R. Holland Cyril Hollingsworth Don Hollingsworth

Ron A. Hope Robert E. Hornberger Eugene Hum Annabelle Clinron Imber Michael E. Irwin AJston Jennings Glenn W. Jones, Jr. Louis B. "Bucky" Jones, Jr. Robert L. Jones, III Philip E. Kaplan William H. Kennedy, III Charles M. Kester Judson C. Kidd Mike Kinard Peter G. Kumpe David N. Laser

Sam laser John T. Lavey Ike Allen Laws, Jr. Roberr O. Levi John G. Lile, III William A. Martin David R. Matthews Gail Matthews Stephen A. Matthews Ronald A. May S. Huberr Mayes, Jr. Herbert H. McAdams, II Edwin N. McClure Bobby McDaniel James H. McKenzie Jack A. McNulty Russ Meeks H. Maurice Mitchell Michael W. Mitchell Sandra B. Moll T. Ark Monroe James M. Moody Harry Truman Moore Richard N. Moore, Jr. Rosalind M. Mouser William Kirby Mouser Charlone B. Murphy 1~,lph C. Murray Timorhy J. Myers E. Sheffield Nelson George H. Niblock Raymond L. Niblock R. Gary Nutter Debby Thetford ye Bobby Lee Odom Conrad T. Odom Joe D. Olson Hugh R. Overholt Charles . Owen Charles R. Padgham Nicholas H. Patton Richard L. Peel B. Jeffery Pence Edward M. Penick Donna C. Pettus E. Lamar Petrus John V. Phelps Norwood Phillips John B. Plegge Frank A. PofF, Jr. David M. Powell William I. Prewen Donald C. Pullen Janet L. PuJliam John I. Purrle Louis L. Ramsay, Jr. Brian H. Ratcliff

Thomas Ray Elton A. Rieves, III Charles B. Roscopf Charles D. Roscopf Kent J. Rubens Herbert C. Rule, III John L. Rush Donald S. Ryan Charles L. Schlumberger Don M. Schnipper Isaac A. Scott, Jr. John S. Selig Dennis L. Shackleford Stephen M. Sharum J. L. Shaver, J r. James Marlon Simpson, Jr. H. Edward Skinner Ted C. Skokos Laura H. Smith Roberr D. Smith, III David Solomon James D. Sprott Thomas S. Stone John F. Srroud, Jr. William H. Sutton William L. Terry Robert F. Thompson Denver L. Thormon Danny Thrailkill John R. Tisdale Fred S. Ursery James R. Van Dover John C. Wade Lynn F. Wade Bill H. Walmsley C. R. Warner, Jr. John D. Watson Timothy F. Warson, Sr. Bud B. Whetsrone Chris E. Williams David H. Williams Robert H. Williams W. Jack Williams, Jr. J. Gaston Williamson Katharine C. Wilson Mike Wilson William R. Wilson, Jr. Teresa M. Wineland Carolyn B. Wirherspoon Tom D. Womack Marsha C. Woodruff Henry Woods Roben R. Wright, III Damon Young Paul B. Young Robert E. Young

l'ol.l6 Xo.1/Spriog 2001

The ,\rklOlll Law)er

I~


Is }Our Legal Administrator in this Photograph?

Photo compliments of Fred S. Ursery

Association of Legal Administrators Central Arkansas Chapter (I to r) Carolyr. Smith, Gill Elrod Ragon Owen & Sherman, P.A.; Carol Minor, Horne, Hollingsworth & Parker; Shirley Fields, Law Offices ofPeter Miller,. Diane Smith, Anderson, Murphy 6- Hopkins, LLP,. Julie Brown Whetstone, Whetstone Law Firm; Ann Spradlin,

Cross, Gilmer, Witherspoon & Galchlls, P'C; Terri Dickimon, Barber McCaskill jones & Hale; Pat Campbel~ Anderson, Mllrphy & Hopkins, LLP; Rev Eberle, LMer Law Firm PA.,. BOllnie Vickery, Mitchell, Williams, Selig, Gates & ~floodyard, PLLC,. Sharon Evans,

Perroni & james P.A.; Christi"e Wentlmford, Bnrber McCaskill jones & Hale; Nnncy ColI;,lS, Mitchell, Williams, Selig, Gates & \fIoodyard, PLLe,. Becky Bien, Wright, Lindsey 6- }mnings LLP; Kathryn Harris, Rose Law Firm, PA.,. Louan WiLJ, Cross, Gumer,

Witherspoon & Galchlls, P'C; jndy jones Stnfford. Friday, Eldredge & Clnrk

(Members not pictured: Christn Blnck, McMath Law Firm; Kntlry Cngle, Hllckabay, MlllISon, Rowlett & Tilley, P.A.; Vickie Gnrlillgtoll, Mitchell, Williams, Selig, Gates & Woodyard, PLLC; jn"et Herring, Bridges, YOllng, Matthews & Drake PLC; Kim White, Hill Gilstrap P'C)

The Association of Legal Administratots (ALA) was formed in 197\ to provide support to those professionals involved in the management of law fitms, corporate legal departments and government legal agencies. ALA's members, representing employers in more than 27 countries, are Administrators who direct important areas of law firm management, including marketing, technology and finance. Call Kathy Cagle, 370-4604, for more information, or visit our website at www,alanet.org.


Book Review

Whiteness of a Dinerent Color by Matthew Frye Jacobson A publication review by John DiPippa,

Universiry of Arkansas at Little Rock William H. Bowen School of Law acial issues have plagued our

COUntry's laws since 1776 when clte slaveholders who wrote the Declaration of Independence

ironically declared that "all men are created equal." Slavery was the issue that drove many of

the

structural

compromises

at

the

Constitutional

Convention.

Slavery

became the subrcxr of the burgeoning

states' rights movement that greeted the

Supreme Coun's McCulloch v. Maryland decision. And> of course, there was the Civil War and the resulting constitutional amendments

chat

put

the

federal

government in the business of protecting

civil rights. All of these developments occurred in rhe context of black white relationships. We take for granted that race is an objective, quantifiable feature of human beings. In fact, there are more biological differences within so-called racial groups than among them. In Whjtel1~SS of a

Diffirent Color, historian Matthew Frye Jacobson caBs our facile assumptions abom race into question. Jacobson is one of a band of scholars who argue that race is socially constructed. A5 he says, "we tend to think of race as being indisputable,

1790 immigration law passed by the first congress restricted immigration to "free white persons." Whiteness was assumed to be self-evident and an automatic indication of fitness for citizenship. Yet, whiteness proved to be more complex than the members of that first Congress imagined. The wave of Irish immigrants fleeing famine in me 1840's challenged the country's assumptions about racial idenrity. At first, the Irish were depicted as a "race" that resembled white people but was actually different (and inferior). Each subsequent group of European immigranrs had to "earn" their whiteness. Fierce debates raged about whether or not Italians, Polish, Armenians, Jews, etc were white. There was little question about Asians, however. The Supreme Court acknowledged in the Chinese Exclusion

prejudice became pan Americanization bargain.

of

the

The 1924 immigration act had the effect of creating our modern conception of race. In this version, whiteness serves as a proxy for European, precisely the conclusion dictated by the act's quotas. In effect, this quOta system served to define whiteness in the way we recognize it today. There is much to ponder in a book like this. It challenges our normal ways of seeing the world. As I read it, I remembered something from my childhood: as a second generation American of Italian descent I experienced

first 20 years of the 20th century. as did the racialization of immigration law. In 1924, Congress reformed immigration law by setting qUOtas for each national group

my share of bigotry growing up. I was called a lot of names: wap, guinea, dago, grease ball. But I never understood why I was also caJled "Black Trash" until I read

based on its percentage of the population in 1890. Congress did nOt remove the "whiteness" qualification until 1952.

this book. This book has a lot to teach us about how cautious we should be when using

Jacobson provides a number of examples of how slowly these groups gained their whiteness. For example, in

racial terms. They are fluid. They are often used as a proxy and they lack an objective foundation.

1923 an Alabama court reversed the miscegenation conviction of a black man because the state had failed to show that he had married a white woman. His wife was a Sicilian immigrant. Of course, becoming white was a complicated process. Groups, like Jews, might be white for immigration

When we talk about race we are not talking about biology. Our racial vision today is the product of unique historical and social forces. Debates about affirmative action, immigration policy, and civil rights should be framed by the acknowledgment of the tenuousness of

purposes but still subjected to fierce prejudice because of their raciaJ otherness. Whiteness also had a comparative feature.

racial categories and placed in our own historical context. The recent inAux of Spanish speaking immigrants to Arkansas

An Irishman might be white in the coal

forces

fields of Pennsylvania but not in the

assumptions about race. culture. and cidzenship. Sadly, some Arkansans

mountains of Virginia. And becoming

categories - designations coined for the

white was a gradual process. Immigrant groups were granted a kind of provisional

along lines of presumed differences."

came to enjoy whites' privileged legal status. And with that StatuS came the opportunity to use their newly discovered whiteness as a basis to exclude others who were not like them. In other wotds, racial

cases that Asians were not white. European immigration peaked in the

real" But races are simply "invented sake of grouping and separating people

But it had another effect. As each immigrant group became "white" they

Jacobson's particular focus is on the relationship of "whiteness" to the

whiteness. Acceptance depended on becoming like "white people." This probationary status of many

assimilation of European immigrants. The

groups accelerated their Americanization.

us all

re-think our facile

to

concinue to think in 19th cemury terms, urging limitations on Hispanic immigrants because of their supposed "racial" unfitness for self-government. See BoolIII8Vlllw Continued on Page 56

1'01. 16 ,I'D.

21Spring 100I The ,Irkansas LaliTer

Ii


law Dnice TeChnology

ATTORNEY-CLIENT ELECTRONIC COMMUNICAnON: TO ENCRYPT OR NOT TO ENCRYPT:Âť awyers, like everyone else, are increasingly communicating with their diems electronically. This is nOt surprising. The advanrages of this mode of communication speed. low cost, convenience are obvious. Anorneys, like other professionals and business people. are understandably enthusiastic about being able to communicate with diems as efficiently as possible. But for lawyers. there is a potential downside [Q this modern method of staying in touch. Bom e-mail messages and documents sent to clients electronically can expose lawyers and law firms to increased security risks and even legal liability as compared with other more traditional forms of communicmion. While e-mail on internal computer systems is generally subject co sHiet conerols, Ineernet messages, on the other hand, can be monicored and intercepted quite easily. An Internet message will rypically pass through several ineermediate systems on its way from sender to recipient. This is of great concern co lawyers because of their ethical duey to protect the confidentiality of client information. That's where encryption comes into the picture. Encryption technology, which electronically scrambles the information being sent over the Internet, is the mOSt popular method for preventing interception. One of the most highly recommended encryption programs is PCP, which Stands for "pretey good privacy." It is available from ViaCrypt in Phoenix, Arizona, e-mail address viacrypt@acm.org. Another reason lawyers are concerned is rhe very real possibiliry of their clients having e-mails from their internal system being subject to discovery. Many computer users (including lawyers) will,

l

IS Thr '\rkmill Law!rr

www.arkhar.rom

unfortunately, say things in e-mail messages that they wouldn't dteam of purring in a formal letter or memorandum. As most everyone knows by now, these messages are just as discoverable and admissible in court as hard copies of letters or memoranda. Attorneys can assist their clients and protect themselves and their firms by implemeneation of reeo rds-destruction policies to Insure deletion of all potentially embarrassing or problematic messages. Perhaps the riskiest of all for attorneys is sending cOllfidemial client information and documents over the Internet. The PGP technology and other similar systems are available co protect documents conveyed in this manner. These systems are called "public key" encryption technologies. Every PGP user has twO "keys," which are simply strings of characters, that are used to encrypt and decrypt documents. Whether e-mail or other electronic communications should be subject to mandatory encryption for lawyers has been a hody debated issue. Many attorneys believe that the near-absolute protection afforded to both attorney and client by routinely encrypting their communications outweighs any possible expense or Inconvenience. However, many other knowledgeable and concerned arrorneys argue that acrossthe-board encryption IS unnecessary

overkill. Peter R. Krakaur, president of Internet Legal Services and author of several books and arrides on Internet technology and the practice of law, favors a "reasonableness" standard based upon adherence to the language and the spirit of the Model Rules of Professional Conduct. Krakaur argues that there is no reason to single out electronic commulllcations for a mandatory encryption rule given that "all forms of communication can be intercepted or misdirected .... E-mail should be subject to the same level of scruriny - and the same treatment - as other forms of anomey-dient communIcation. The American Bar Association addressed this issue in its Formal Opinion No. 99-413 on March 10, 1999 ("Protecting rhe Confidentiality of Unencrypted E-Mail"). The opinion is lengthy bur can be summarized as ruling that a lawyer sending confidenriaJ dienr information by unencrypted e-mail does


arkansasfindalawyer.com noe violace Model Rule 1.6(a) in choosing that mode of communication "because the mode of transmission affords reasonable expectation of privacy from a technological and legal scandpoinc." Formal Opinion No. 99-413. It seems that this would be the last word on encryption of 3[wrney-c1iem communications. Bur this is nm the case. A front page 3nicle in the October 20. 2000, Wall Street Journal once again brought this issue {Q prominence in the collective mind of ehe legal community. The arcicle deale with concerns about "meradara," which is defined as "data on data." Metaclata is used to enhance documents in a variety of ways, including storing file inforrn3[ion on who created or edited the document and when and where it was saved. The major concern regarding meradar3 is having prying eyes reading information inadvenendy left behind in Word documents. Many lawyers use Word to prepare their court filings, contracts and other critical documents. A good example of the metadata problem is comments inserred when sending a document to a client. As we all know, these comments could reveal secret negotiating tactics or other embarrassing information to the wrong parry. Without going into JUSt how easy it is to uncover meradata, suffice it to say that all lawyers who routinely use Word should educate themselves on possible areas of exposure and implement policies regarding documents distributed outside the firm. A consultation with your computer expert should be high. on your co do lise and will help alleviate concerns about preventing metadata from being read and used by anyone other than the intended recipient of the document or message to which the metadata is attached. _

Jeanette Hamilton IS a 1986 graduaee of UALR Law School. She has been wich. ehe Nonh Linle Rock City Attorney's Office for six years. She is the chair of the Technology Comminee foe 2000-200 I.

How attorneys find other attorneys. For more information, contact Barbara Tarkington at 501-375-4606 or 800-609-5668 btarkin&!on@arkbar.com

1路800路275路8903 www.amfs.com medlcalexperts@amfs.com

A physician managed compa"y

1'01. n SO. t18pring tOO I TIe ,lrkuslsl,lll"!pr

II


RACIAL PROFILING: First there was the "criminal profile, " then the "drug courier profile. " In the words ofone top

A DISGRACE AT THE INTERSECTION OF RACE AND THE

deputy in the Los Angeles Hardcore Gang Division,

CRIMINAL JUSTICE SYSTEM

"To nullify profiling is to

bV JacII Kearney

nullify policing... If some guys are..flashing gang signs and cruising at 5 miles per hour, you know they're gang bangers looking for trouble..so you stop them...and probably save some lives. That's what a profile is. " However, some research points to abuses.

to Thr .Irkanm 1,IIlTrr l\Ww.arkhar.rnm

Picture ir. You and your wife are driving your new car home from a dinner parry in a nice neighborhood. Suddenly, multiple police units appear, force you ro srop your car and train search lights on you. Before an officer approaches your car, you squint to see beyond the glare of the search lights. There. you find a scene which is all roo common in television police dramas: uniformed officers crouched and standing with weapons in firing positions ncar cars in loose formation. In rhis frighrening episode, every single weapon is aimed at you. The scene described above is not mere famasy. It is a facwaJ accounr of what happened to my sister, Janice Kearney, and her husband, Former White House

About the Author Jack Kearney has a private law practice in Litrle Rock, and is a member of the Arkansas Ethics Commission. He is licensed ro practice in Arkansas and Oklahoma. Among his siblings are several arrorneys currently practicing in Arkansas.

Personnel Director Bob Nash. Janice was ordered [Q sir srill in the car and forced co watch as officers threw Bob to the ground at

gunpoint.

Once satisfied that the search

was in vain, officers informed the couple that they were investigating a car theft and looking for a suspect that matched Bob's description. Pressed for a police repoft, Bob later received a repon describing a suspect with whol11 he shared only race and gender. The stolen car resembled theirs only in that both were relatively new SUVs; differenr color, make and model. This cOlHcmporary phenomenon is commonly called "racial profiling" and it

victimizes people of eolor regardless of social, economic or educational status. According [Q one poll, forry-two percenr of aJl African Americans and 72 percenr of African Americ.1n young men ages 18 ro 34 say they've been sropped by police because of their race. Thirty-seven percenr say it happened more than once and fifreen percenr say ir happened more than ten urnes.

A 1999 Gallup poll found 59 percenr of Americans 18 or older agreed racial profiling is widespread and 93 percent agree it exisrs. Eighry-one percent of Americans polled said they disapprove of the practice.


1'01. 16 ~I. 1lSpril! 100I The ,lrkmas La"ler

tI


The American Bar Association has, in fact, weighed in on this problem. It strongly supports legislation which would document the date of police scops over the highways, and has supported such legislation before the House Judiciary Committee. In Arkansas, Representative Jim Lendall filed. and later withdrew under pressure, a measure requiring the Arkansas State Police to gather data on police StopS as has been done in some other states. In testimony on the bill, the Arkansas Stare Police said it does not rolerate racial profiling. How and why does such an unpopular practice begin and persist? Several factors appear to conspire to sustain this phenomenon. Law Enforcement. All professions have tools, models and shortcut solutions to solving recurring problems. A law

With the war on drugs, however, the court may have encouraged the misuse ofprofiling. It granted police authority to apply widespread profiling to detect unknown or potential crimes. Then, it failed to limit the subjective, unsupported criteria police use to target people for investigation.

it Th/ ,Ir~amll.l\f)/r

""".ar~bmDm

enforcemem profile often results from years of research, institutional lore, personal experience and common sense. First there was the "criminal profile," then the "drug courier profile." In the words of one tOP deputy in the Los Angeles Hardcore Gang Division, "To nullify profiling is to nullify policing...If some guys are.. Aashing gang signs and cruising at 5 miles per hour, you know they're gang bangers looking for rrouble..so you stop them...and probably save some lives. That's what a profile is." However, some research poincs to abuses. In a Philadelphia study, African Americans comprise 79% of those se.uched by police and only 42 percent of the population. A Maryland study of StopS by state troopers showed 72.9 percem of those stopped and searched were black while only 17.5% of traffic violations were committed by blacks. It showed whites committed 75.6 percent of Iraffic violations and only 19 percem of those stOpped by Slate troopers were white. An Illinois study showed that in one city where Hispanics comprise less than one percent of the driving population Hispanics were subject to 41 percent of automobile searches by police. The Louisville Courier Journal found that it's police department stopped one in every 75 blacks driving in the city, and only one in 163 whites. Twenty-t\vo percem of drivers were black, but blacks were 76 percent of those stopped. A similar study of the New Jersey Turnpike showed more than 46 percent of the drivers stopped were black. Race. Race nor only affects what we consider to be a problem and what we consider to be the cause, but it also affectS the solutions we consider. \Vhen a juror assesses the harm done by a "stock swindler" as opposed ro a "welfare cheat" or the harm done by a "crack cocaine user" as opposed to one who illegally uses prescription drugs, racial images can be as important as objective evidence. The Media. The media's tole in shaping what Americans do and think cannot be overstated. Its power rests in its ability (0 reflect and establish societal norms. A study called "Crime in Black and White: The Violent, Scary World of Local ews, concluded that news coverage of crime consistently conveyed the nOlion that (I) crime is violent, and (2) the criminals are

non white. So clear was this message, that the study found viewers tended to remember criminal subjec[S as black even when the subject's race was not specified. While viewers tended nor [Q remember the race of white perpetrators, two thirds of viewers remembered the race of the perpetraror if he or she was African American. According to Gilliam, "ninety percent of false recognition involved African Americans and Hispanics." War on Drugs. The profile for drug couriers was reportedly developed in the early 1970's by a Detroir DEA agem working at the Detroit airport. This profile composed solely of behavioral characterisrics soon spread to many other airports. Then, in the 1980's, the War on Drugs led to major changes in criminal justice policy and law enforcemem behavior permitting the use of the drug courier profile. It became a tool used in several kinds of criminal investigations. By 1985, the Drug Enforcemenr Agency trained thousands of state and local police officers to use the "pretext" traffic stOp as a tool to conduct drug-related investigations. "Pretext" is detention of an individual on suspicion of a minor traffic violation. then investigating for drug violations. Also by the mid-80s, the Florida Departmem of Highway Safety issued its Common Characteristics of Drug Couriers including the following: lors ofgold, peopk wbo 'do nor fit ,be

lJehick. ' and ethnic groups associated with the drug trade. Since governmem scudies show that only 13 percent of drug users are black, it seems quire possible that pervasive use of "pretext" traffic srops and tools such as the Common Characteristics of Drug Couriers could be subjecting disproponionate numbers of African Americans to police questioning on stree[S and highways. The CourtS. Despite the Fourth and Fifth Amendments co the Constitution of the United States and the heightened protection of minorities under law, the coun has played a substantial role in the use and acceptance of profiling. The COUft first, and properly, found that "profiling" could serve as a factor co be considered in meeting the "probable cause" necessary for focusing police intrusion upon a particular person.


With the war on drugs, however, the courr may have encouraged the misuse of profiling. It granred police authority to apply widespread profiling to detect unknown or potenrial crimes. Then, it failed ro limit the subjective, unsupporred criteria police use to target people for investigation. Courr decisions also permitted police officers to stop and question people suspected of minor traffic violations, demand information of suspects when sropped whether or nOt they are suspected of a crime, and to question everyone in a vehicle when the driver is sropped. The courr in this circumstance has favored the perceived need to stem crime over the risk of violating the Fourth Amendmenr's promised security unless there exists probable cause that a crime was committed. 1t has given like treatment to the Fifth Amendment's promise of due process and equal protection of the law. The Fourrh Amendmenr provides: "The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated and no warranr shall issue, but upon probably cause, supported by oath or affirmation and parricularly describing the place to be searched and the persons or things to be seized." The Fifth Amendment states: "No person shaH be ...deprived of life, liberty or property, without due process of law." The Fourteenrh Amendment reqUires: that" no state shall deprive any person of life, liberty or property without due process of law, nor deny ro any person within its jurisdiction equal protection of the law." These promises must be kept. The more we understand the facrors which create and sustain racial profiling, the less likely we are to tolerate it. We can be proud that the American Bar Association is on the right side of this matter. For, in the words of The Lare Jusrice Thurgood Marshall on rhe 200th anniversary of the United States Supreme Courr, "{People} are enslaved by law, emancipated by Jaw, disenfranchised and segregated by law and finally have begun co win equally by law...The credit... belongs to those who refused to acquiesce in outdated notions of liberty, justice and equality and who strived to better them." _

ELECTRICAL ACCIDENTS Paul D, Mixon, PhD" FE. Engineering Consultant P.O. Box 3338 State University, AR 7467 (870) 972-2088 (870) 972-3948 FAX pmixon@navajo.astate.edu

Electrical Accident Investigation and Analysis, Contact Cases and Electrocutions, Electrical Injuries, Property and Equipment Damage, Electrical Fires, Safety Codes (NEC, NESC, UL), Expert Witnessing for Plaintiff and Defense Related Cases.

The velY latest...

Handheld, mohlle aeeess 10 vour legislative Inlorrnation - Ani/Where, AnYtime! YOli bet, our ......." is a great information resource for legislative and government affairs professionals. And now you can have access to your ~d bill tracking files, comminee schedules, bill status, bill text, and more from the halls of the Capitol, from your car, from Doe's, from wherever you are - all through a device that fits in the palm of your hand! You can even e-mail your legislator from the gallery! (as well as from almost anywherr rlsr ;n the cOllntry)

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Arkansas Legislative Digest, Inc. 140 I West Sixth Street Little Rock, Arkansas 7220 I (501) 376·2843 FAX (501) 374-9256

Using our custom designed DIIIM'",service and a Palm VII personnel digital device, Digest subscribers are only a wireless internet connection away from our up-to-theminute session information.

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101. ~610.1/Spring 2001

The "rkansos l,ollIPr

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YLS Public Service Programs Make a Omerence r...-.' ........ aa Marl! Hodge and Paul Dumas If you have been looking for an

opporcunity ro make a difference in the life of a child, you need to look no further. Over the past ÂŁ\.\10 years. members of the Young Lawyers' Section have been reading with elementary students in Lirue Rock. Pine Bluff, and a few other cities across the

state. While the students are benefitting from the one-an-one anemian that their "lawyers" provide, the reading tutors have received an even greater benefit by witnessing the progress of the srudems. The i l l wants (Q expand ilS reading tutOr program [0 all parts of the state

during the 2001-02 school year. There are no complicated requirements or training sessions needed to make the program a success. Instead. all that is needed is a commitment of your time on a weekly or bi-weekly basis, and the desire to assist a

child. Each program across the state will be unique, in that the young lawyers in that community will deal with the elementary school down the Street or across tOwn to set up a schedule that is convenient for both

rhe lawyers and the school. The schools are excited about the idea of young professionals coming in and reading with their students, and they have been as accommodating as possible understanding that most young lawyers have demanding and changing schedules. Over 7S young lawyers have taken parr in the tutoring program at two schools (one downtown and one out west) in Little Rock. The program has received tremendous supporr and recognition from the Volunteers in Public Schools office for

the Little Rock

Public School District.

The participating schools provide all the materials (books. paper. pencils, etc.)

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needed for each session. Most tutors participating in the program in Litde Rock take one lunch hour per week to read with either one or two students. Other turors team up with another lawyer or someone else from their office and read with a student on a bi-weekly basis. Each turoring session takes approximately 20 minures and involves reading a couple of books and writing a sentence or shorr paragraph abour one of the stories. In my experience as a reading turor, I have found that Larry (my student this yeat) is excited to see me each week and is disappointed when our reading time is over. Larry is in third grade. bur he read on low-first grade level when the school year starred. Over the course of this year. Larry has progressed steadily. and he now reads on a second grade level. I have enjoyed getting to know Larry and seeing him become a better reader. I know that my 30 minures or so a week with him is not the reason his reading skills have improved. He has an excellent classroom teacher and a reading specialist that also work with him. But, I am confidenr that our time tOgether is well spent. While I may have taught Larry how to sound our a few words. he has taught me JUSt how valuable 30 minures of my time can be.

The YLS would like to help you become involved in a local school as a reading tutOr. It makes no difference whether you are the only young lawyer interested in your community or whether there are several young lawyers who wam to take part. If you are interested in receiving a YLS information packet or have any questions about the rendi"g tutor program, puase contact Mark Hodge at (501) 372-5800 or mhodge@C1IjInw.com.

Free leD8IlS11St1nCe IIlJIPS VIClInIS Recover

rr.Sl_

Following (he recent ice swrms in our stale, Arkansas lawyers once again came to the aid of their neighbors by volunteering their time and services to help fellow Arkansans who had fallen victim to these devastating storms. Although that crisis has passed, we know that the next one may be JUSt around the corner. Accordingly, the Disaster Legal Services Committee of the

Arkansas Bar Association continues (Q train new volunteer lawyers who can provide disaster legal services during these times of need. Each year we strive to increase (he ranks of those attorneys who receive this training and can be available when needed. Preparation is the key (Q providing effective disaster legal services and to be fully prepared we simply need more Arkansas lawyers who are willing to step forward and participate 111 this vital project. We would also like to ta.ke this opportunity to commend those Arkansas lawyers who so graciously devoted their time and services recently to assist those in need of legal services following the December ice Storms. Without their dedication and effort. this project would

not be possible. Mark Hodge has bun doing commercial litigation and transactions tit the Chisenhall,

N"mtd andJulian Inw finn in Little Rock fWO ran. He chain rhe lAwym fOr Literacy project ofthe Young Lawyers &etion ofthe Arkansas Bar Association.

fOr

Paul Dumas practices with the Ytzus 6Dumas Law Office in Morrilton. He chairs the Disaster Legal Assistance Project of the Association s Young Lawyers Section. D''''''IIHII<,\1 A ....'d ... I\'\<1 PHO(,H\\I

I \\\ \I H YO! l " I I H...

Vince Chadick Michael Mullane Jim Dunn Tun Cullen Baxter Sharp Jean L."lllgford Comer Boyett Stuart P. Miller Yolanda Dreher MarshalJ Wood Richard T. Donovan Betty J. Demory TIm Sharum C. Brantley Buck Brian H. Ratdiff

William H.

Kennody, III Ann Fain Ron Hope D.P. Marshall, Jr. Kirby Mouscr Mark Mayfield Gutls Hitr Roben Thompson Cindy Thyer Scott Zuerker Michael Langley Roger Ray


Arkansas Legal Directory The Official Directory Of The

Arkansas Bar Association Nearly 700 pages of information for the Arkansas legal profession. The Table of Contents includes: ArllflSlS Bar AssociIlicNl US GoYerrmenl

Erecuti" Br.nch lip,Ii" Branch US senators

US Rtpr!senllliYes Judicial Branch U S Supreme COlM1 US Cour1s of Appells 8lh CilCuit (AR, lA, MN, MO, NE, ND, SDI US COtJrl of Appeals· Feder.1 Circuit

US Court 01 Appeals lor 1M Amwd Forces U5 District Courts Jurisdictions US District Courts US Bankruptcy CourlS Filing Offices US Probation Ollie. Feder.1 Pub~c Oel.nders US COurl of feder,l Clams US CI)Uf! of 1"',rnllion,1 Trad. US hx Court Alien Terrorist Removal Couri Department of Health & H~ln Servicu Region 6 Department of Interior Buruu ollndilll Affairs Department of Justice AllorNV Gellltal Antitrust Division OnIg EnlorCemet'l1 Acknin New ~ ~ F.defal Bull,., of In\llS~ltion Federll BtJrllll 01 Prisons s.tII e-II R.,.. kmligr.tion & N,IUl'Hlltion Senrite £........ US Allorn.,s US M'lShals Same. US 1Mln's Offic., Region 13 Department of labor, Region 6 Offici 01 Worte,·s CompeIwtion Progr.-ns OCtllp.tioNl smey _ltHldl-...-.....

OrpIrtrNnI of Transportation Department of Treasury BurtIU of Alcohol TobKCO lAd FlrtlmtS Internal Revtnul Semu

Internal R!ftflUl! Smite. Midstatts Rtgion Internal R!YeflllI SeMel. AR·OK District U5 Customs Seme., Gull CMC Department 01 Vellr.ns AIf.s U 5 StcLrities IlId Erch.nlll C~ Social Security AdminiJtr.tJon. R!gion 6 Tine Zens Ind TIt!phonI Atu Codes MIP Schoots 01 L,w Ark.nslS 5t'" GoY!rrment beculin OUie.rs Genet.1 Assembly Sen.lors House of Represent.tMs Stlt. Agencies Allorney Gener.!'s Olli" ArhnslS Code Revision Commission Dep,tlment of Corrections hution Dep.rtlTIInlS Inlernll Rlvenue 5ervic., AR·OK District Deparlmen! of FinaflCe & Administralion Ark.ns.s Public Serviel Commission Court Section· ArkanslS SLIjlreme Court CO\a1 of Appe,ls Admftslr.tM Offici oflhl CO\a1S Judicial Disdpline & DiSlbi6ity CormUsion .Circuit Courts ChanclfY Courts JUYtnill Courts Prob.ll Courts County C«rts Courts of Conmon Plus M~alCourts

Justicn of the PIICI County Ouonm Couru City Cowts

P"CCUU Professiollal Associations Americ:", Associ.tion of L.w Libraries AmIOt'" SIr AlSOCiition AlSOCiition of Ltgal AdminiJtfllots

Association of ReponIfS of Judicial Decisions Association of Trial L.wyers of Asreric. Fe~al81l'

Anociation Assist.nt MIlI.~nt Associ.tion Le~al Setr!taries lntemltional, Inc. NALS... lhe association fot Ie~" prolessionals N.tional Association fot L.w PllCement N.lional Association of CmwIIl OIt-ll'A"fWl Nation,l Assod.tion of Leg.1 Assist.nts. Inc. Nation.1 Assod.tion Women L.wyers Nalion.I B1act AmenCln P".legal Associltion National Court Reporters Associ.tion Nation.l hdmtion 01 P.r.leg.1 Associltions Tr.nslalors 'nd Interpreters Gu~d AALS ... A...... '"' A~ l.... S-t ",.Inti.ol. ArkanslS Assodltion of Women L,wyers ArhnSis Bar Associ.tion Executive Counc~ Bar Districts SI811 House 01 Deleg.les Section Officers Sl8nding & Specill Commiltees Arkansas Bar Found.tion ArklllS's IDLTA FOI.IWl'tion, Inc. Arhnsas VolunlHr L'WYlfs for the Eldtrly Loc.1 & Specillty BII Associ.tions C.lend.r of Ennts Arhnsas PrOSKutinll Auorneys Association AtIlansas Trial L.W'ftis Associ.tion AtIlansas County M.p City·County List AUomey Alphabetical Roster Sl8tewide FmAlph.betical Raster Stltewide AUonwys, Roster by County, City Out of SUit Anomep Med.tors Frelds of Practia Bio;rapNc:a1 UsMos Classifed AdvertisinQ Section Sri; & Trust Olfiurs Le~81

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1'01.16,10. tlSpring tOOl

fbe ,Irknsas I.aw!er

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Pictured above is John Sebastian Little who served as circuit judge in Fort Smith, AR and was also a congressman and governor of Arkansas for a short time.

SEARCHING FOR THE CIRCUIT JUDGES OF SEBASTIAN COUNTY By Judge Jim Spears, Chancery Judge, Third Division, Twelhh Judicial District, Fort Smith 'VJhen I began practicing law back in

W

1973, a gallery of judicial porrrairs in the office of Chancellor Warren Kimbrough

inspired mc. Those faces represented some of the best of the profession to which I had committed myself. They were the chancery judges of Sebastian CoulHy. With each name and face I could open a door to their legal and judiciaJ careers, to their lives and

w the hisrory of my community.

I

wondered who their colleagues were on the circuit courr.

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That question occupied my mind ulHil ten years ago when I began researching the hiscory of the circuit judges of Sebastian Counry, and on February 28, the counry bar association hosted a reception at the FOri Smith Museum of History where the photographs of those outstanding jurists were unveiled. Thus, we establish the first major landmark of a long term project: compiling the judicial history of Sebastian Counry. The research data discovered in this project is the captivating stuff of novels: letters from the Civil War battlefield, stOries about politics and governmenr. The sleuthing necessary to find some judges' photographs would make a good Sherlock Holmes mystery. Records at the Administrative Office of the CourtS helped put the Secretary of State's historical abstracts 111 proper perspective and track the changes in judicial districts over time. This led me to a cache of photographs at the Bemon Counry Courthouse. It turns out Benton and Sebastian Counties were in the same judicial district back in 1861. Staffpersons at Ouachita University and law school classmate Bill Wright are on the trail of a photograph of Judge Henry Boling Sruart from Arkadelphia. In 1862, when Judge Stuart was on the bench, Sebastian County was in a district including Arkadelphia. Techniques like this, and methods as simple as cOlHacting family members have turned up photographs of 43 of the 46 circuit and chancery court judges. The process has taken fa ur years. In addition ro the photo of Judge Henry Boling Stuart, I am still searching for photographs of Judge A. N. Hardgrove who served from 1864 - 1867 and Judge William Walker who became a circuit judge around 1882. Any leads to these photos would be appreciated. You may call me ar 501-7841560 (work) or 501-452-7420 (home) or email me at ispears@co.sebastian.ar.us. Occasionally, people in the community at large have joined the search and come forward with valuable leads. After cxhausting all clues to the whereabouts of a phorograph of Judge John Brizzolara, I regretfully resigned myself ro displaying a phoro from his 1904 high school yearbook, when a telephone caJi came from someone with a phoro of the judge as an older man. In June 2001, following the exhibir at the Fon Smith Museum of History, the collection will be placed in the twO original

chancery and circuit courtrooms in Fort Smith. My generous colleagucs in the Sebastian Counry Bar Association have provided the beautiful frames for each II x 14 photograph in the collection. One of the greatest joys of this project is helping others duplicate it in their areas. In Fayetteville, Judge Maryanne Gunn has set off on a journey that will uncover mystery and intrigue that will educate and inspire futurc generations. To Judge Gunn I say, "Welcome" to others with taste for adventure, I say "Come join us!".

Pictured above is Jim Spears and the Picture of Justice exhibit at the Fort Smith Museum of History.

About the Author The Honorable Jim Spears has been a Chancery Judge in Fort Smith, Division 3, 12th Judicial District of Arkansas since 1993. He is a former Workers Compensation Administrative Law Judge. Judge Spears was an Assistant Federal Public Defender while Cuban refugees were housed at Fort Chaffee.


Wright, Lindsey

&Jennings

LLP

IS PLEASED TO ANNOUNCE

(I to r: Jenniftr S. Brown, Christine j. Daugherty, Ph.D., Kristi M Moody)

KRISTI M. MOODY has become a parmer in our Lircle Rock office. Kristi focuses her practice in Professional & Nursing Home Malpractice, Product Liability & Insurance Defense Litigation, and Fidelity & Surety Law.

JENNIFER S. BROWN has become a member of rhe firm in our Fayerteville office. Jennifer has ten years of experience in Health Law, with parricular emphasis representing hospitals, physicians, and other health care providers in compliance, transactional, and operational issues. Jennifer also has a general legal background in Corporate, Securities, and Banking Law.

CHRISTINE J. DAUGHERTY, Ph.D. has become an associate in our Fayetteville office. Chris holds a Ph.D. in Biology, is licensed to practice before the United Srates Patent and Trademark Office, and focuses her practice in the Intellectual Property area (with emphasis on biotechnology).

200 West Capitol Ave., Ste. 2200 Little Rock, Arkansas 72201-3699 (SOl) 371-0808

www.wlj.com

320 North Rollston, Ste. 102 Fayetteville, Arkansas 72702-1306 (50 I) 575-0808


Why We Need Hate-Crime legislation in Arkansas: Stopping Bias-Motivated Violence hat is a "hate crime"? Why do we need a hate-crime law? Wouldn't this lead to a form of "thought police"? Wouldn't such a law give "special rights" to "special groups"? Don't existing laws already punish hate crimes? Are hate-crime laws constitutional? These are the questions I asked myself when I first began thinking about whether or not Arkansas needed a law addressing crimes that are motivated by hatred. I've never been a victim of a hate crime. which may have led [0 some initial skepticism on my pan. causing me to doubt that a hatecrime law was necessary in Arkansas. However, the more I studied the subject and learned about numerous incidents around our state. even in the past few years, I changed my mind, and I hope this anicle will change yours, too.

W

"Hate crime" is a media-invented phrase, which is largely left undefined. Nonetheless, the term is generally understood to mean any crime that is motivated by a hatred for a specific segment of society. The victim is often chosen simply because he or she is a member or a perceived member of that societal group. So, in a real sense, the crime is committed against an entire group. and not simply against an individual. Some call hate crime "bias-mocivated crime" because the term focuses on the perpetrator's mocivation rather than on an emotional reaction or feelings of enmity. A hate crime is not just about hatred; it is about motive. These crimes are different from crimes of passion or crimes of revenge where victims

WHAT IS A "HATE CRIME"?

About the Author Mark Lunsford Pryor became Arkansas's Attorney General in January of 1999. Ar 38, he is currently the youngest Attorney General in America. Before taking office, he practiced with Wright, Lindsey & Jennings and had a solo practice.

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are specific individuals chosen because of a relationship [0 the perpetrator. They are also different from random crimes, like armed robbery or home burglaries, where the victims are basically interchangeable. Put another way, most crime victims are selected because of who they are or because of what they do. Victims of hate crimes are selected because of what they are. This distinction is important. They are selected because of the color of their skin or because they hold certain religious beliefs or because of their gender. In addition, bias-motivated crimes are committed with the purpose of sending a message to the victim and also to the segment of society associated with the victim. The message is simple - because of your race or your religion or your sexual orientation, you are not welcome here. WHY DO WE NEED A "HATE-CRIME" LAW?

Because hate crime exists. It is that simple. It is impossible to know exactly how many hate crimes are committed nationally each year. The FBI relies on the voluntary reporting of hate crimes by local law enforcement. That, coupled with the fact that many hate-motivated crimes are not reported ro local law enforcement, makes it very likely that hate crimes in this country are vastly under-reponed. StiH, in 1999. the FBI received reports rhat 7,876 hate crimes had occurred. Even though almost every category of crime has trended downward for the last eight years, hate crime is actually trending upward. Still, the national statistics are very difficult to interpret. The same is true for hate crime in Arkansas. Since [his state does not have a crime ro report. virtually none arc reported. So, the statistics are not much help. We need [Q face the fact that mankind has a history of attacking people who seem different. There are certain communities of people traditionally targeted for hate violence. During much of the 20th cemury, African Americans were often targets of lynching when they attempted to vore. Non-majoriry churches and houses of worship are still frequently the targets of hate-motivated vandalism. Gays and lesbians are often attacked for showing

affection to one another or for "looking [00 gay". Forry-four states already have some rype of bias-motivated-crime legislation; Arkansas does not. These states have sent a clear, unequivocal message that crimes motivated by bigotry will not be tolerated; Arkansas has not. I realize that prejudice, like violence. cannot be legislated out of existence. We can, however, take a step [Oward making this scate a better place in

We need to 'ace the 'act that mankind has a

0'

history anacking people who seem dinerent. which ro live and ro raise a family by standing firm against bigotry. Otherwise, we risk having the dubious distinction of becoming [he only state in the nation not to enact this type of legislation.

Wo LDN'T THIS LEAD TO A FORM OF "THOUGHT POLICE"? o. A properly drafted hate-crime law does not punish thought any differently than is currently done in our criminal justice system. Arguably, the culpable mental state is punishing thought. Triers of fact already determine issues of mens rca and motivation. So doing [his with hate crime is nothing new. The best hare-crime law

Continued on Page 30


Sf:-;~If 8111

State of Arkansas A5 Engrossed: SI/18/01 SI/30/01 S2/1/01 83rd General A5sembly A Bill Regnlar Session, 2001 SENATE BILL 35

was pan of the chain of evenr.s leading to the criminal offense.

SECTION 2. A person shall be subject to enhanced criminal penalties if the person purposely selects the victim of a criminal offense because of the victim's actual or perceived: (I) Race;

By: Senators B. Walker, Beebe, Wl1kins, Riggs, P. Malone, Simes, K. Smith, FitchBy: Representatives T. Steele, Broadway, C. Johnson, White, Jones, L Thomas, LeweUen, G055, Clemons

J.

For An Act To Be Entitled AN ACT TO PROVIDE ENHANCED PENALTIES FOR CRIMINAL OFFENSES COMMJTTED BECAUSE OF THE VICTIM'S RACE, COWR, RELIGION, ETHNICITY, ANCESTRY, NATIONAL ORIGIN, SEXUAL ORlENfATIO ,GENDER, OR DISABILITY; AND FOR OTHER PURPOSES. Subtitle AN ACT TO PROVIDE ENHANCED PENALTIES FOR CRIMINAL OFFENSES COMMITTED BECAUSE OF THE VICTIM'S RACE, COWR, RELIGION, ETHNICITY, ANCESTRY, NATIONAL ORIGIN, SEXUAL ORIENTATION, GENDER, OR DISABILITY.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF ARKANSAS: SECTION I. For purposes of this act: (1) "Because or means that: (A) The bias motivation was a cawe in faCt of the criminal offense. regardless of whether other causes also existed; and (B) When multiple concurrent morives existed, the bias motivation was a subsramiaJ facror in the commission of the criminal offense; (2)(A) "Disability" means a physical or menral impairmenr that substantially limits 3 major life function.

(B) "Disability" does not mean: (i) Compulsive gambling; f

3S

(ii) Klepmrnania; (iii) Pyromania; (iv) Currene use of illegal drugs or psychoactive substance use

disorders r"mlring from illegal use of drugs; or (v) Alcoholism;

(2) Color; (3) Religion; (4) Ethnicity; (5) Ancestry; (6) National origin; (7) Sexual orientation; (8) Gender, except for criminal offenses in Chapters 14 and 26

ofTicle 5 of the Arkansas Code; or (9) Disability. SECTION 3. (a) If a person pleads guilty, nolo eomendere, or is found guilty of any criminal offense, and the trier of faer determines beyond a reasonable doubt at the sentencing phase of the bifurcated trial that the person purposely selected the victim of the offense because of the victim's acrual or perceived race, color, religion, cthniciry, ancestry, national origin. sexual orientation. gender, or disability, then the penalty range for the offense shall be increased.

(b)

Upon a finding of guilt or a plea of guilty or nolo

contendere to any felony or misdemeanor. the minimum and maximum penalties for the crime, including the amount of any fine and the length of any term of imprisonmenr or period of probation or suspended imposition of sentence, shall be increased

by twenty percem (20%). The penalty enhancemem shall nOt exceed twenty percem (20%) regardless of rhe number of motives underlying the commission of the crime. (c) To seek the enhanced penalties established by this section, a prosecuting attorney shall file, with the court, written notice in the informacion or indictment indicating that the person, upon a finding of guilt, is subject to the enhanced penalties.

(d) The Arkansas Rules of Evidence shall apply during the penalty phase, at which time the trier of fact shall consider evidence regarding whether the defendant purposely selected the victim of the offense because of the victim's actual or perceived race. color. religion, ethnicity. ancestry, national origin. sexual orientation, gender. or disability. (e) During the penalty phase, the trier of fact must determine beyond a reasonable doubt that the defendant purposely selected the victim of the offense because of the victim's actual or perceived race, color, religion. echnicity. ancestry. national origin. sexual orientation. gender, or disability in order for the defendant to receive an enhanced penalty provided in this section.

(3) "Sexual orientation" means heterosexuality. homosexuality,

or bisexuality; and (4) "Purposely selecr.s the victim" does not mean, and may not

be proved by evidence, that a defendant's mere abstract beliefs or expressions were hostile or contrary to the victim's traits enumerated in Section 2 herein, or thar a defendant is or was associated with a group opposed to the victim's traits enumerated in Section 2 herein, unless such belief. expression. or association

111.l! II. :!is,rill iDOl

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punishes people nOt for what mey think, but for what they do. It is important that our law not abandon recognized criminal justice standards. In presenting this evidence to a jury, the rules of evidence should apply and the biasmotivation should be proven beyond a reasonable doubt. Simply because a crime occurs berween a perpetrator and a victim of different races, the penalty enhancement should not be amomatically triggered. If that were the standard, then I would say that the criminal justice system would be harmed. There must be evidence of bias-mOtivation that can be presented to the jury in the sentencing phase of a trial. All of this depends on the circumstances, but a prosecutor might look to a history of prejudicial statements the perpetrator made or wrOte before com mining me crime. The prosecutor might also look at the crime scene to determine any evidence of bigotry or bias. In fact, evidence that the perpetrator knew the victim would, in many cases, cut against the use of the penalty enhancement because it would make it less likely that the victim had been selected because of race, religion, ethnicity, or other factors. WOUWN'T SUCH A LAW GIVE "SPECIAL RIGHTS" TO uSPEClAL GRO rs"? No. Hatecrime laws set out cerrain criteria as the motivating factor for committing the crime. These should include qualities we all possess - race, color, national origin, ethniciry, gender, religion, and sexual orientation. I want to reiterate that these are characteristic attributes of all individuals. Unfortunately, many people perceive hate-crime laws as only benefiting minorities. This is nOt true but is a persistent misunderstanding. Any person in this state could become the victim of a hate crime - because of race, because of gender, because of a belief system. A hate-crime law should be neutral or generic in its definition and application. The law should not divide us, but unite us. It must protect all citizens equally and it must punish without discrimination. Aren't hate crimes already being punished by existing laws? No. It is true that me underlying crimes are already being punished, but the bias-motivation is not. Let me give two examples of this. If a perpetratOr vandalizes a car by scratching three X's in the paint, then he has

Any penon in this state could become the victim of ahate crime - because of race, because of gender, because of a belief system. committed a crime and should be punished. However, if the perpetrator scratches three K's in the paint of the ca.r and me owner of the vehicle is black or Jewish or Catholic, then most people would agree that the crime is more than JUSt vandalism. Its intent is to send a message of fear and intimidation. Likewise, if a group of high school seniors goes to a commercial building in me wee hoUIS of the night and paints the phrase, "Class of 200 I", on the exterior of the building, they have committed a crime and should be punished. However, if these same seniors go to a synagogue and paint swasrikas on the exterior of the building, that is a different maner. They are sending a message of fear and intimidation that will ripple mroughout me Jewish community. I think the best and most constitutionally sound hate-crime laws are those that provide for penalty enhancements. Most of the forty-four states that have taken action against crimes of bigOtry have taken this approach. The exact amollnr of enhancement varies widely from state to stare. As lawyers, we understand that criminal penalties are enhanced in dozens of omer circumstances. These include crimes committed on or near school property, committing a felony with a firearm, belonging to a criminal gang, being an habitual offender, or killing a police officer. The reason we enhance penalties in this state is for public policy. Certainly, we are punishing the perpetratOr for the underlying crime, but we feel it necessary as a society to add to me penalty due to the circumS[ances of me crime. Many penalty enhancements go back to the motivation for committing the Penalty crime In the first place. enhancemenrs are designed to act as an additional deterrent to committing these types of crimes.

Arguably, criminal penalry enhancements differentiate among victims. By way of example, if one person is selling drugs on the street corner and another person is selJing drugs at the local junior high school, why should we have a harsher penalty in the second case than we do in the first? It's a matter of public policy. In bom cases, a fifteen-year-old could be purchasing marijuana and so, from mat standpoint, the victims look identical. But our public policy is to have drug-free school campuses and to create safe, positive learning environments. It is nOt that the fifteen-year old purchasing drugs on the srreet corner is any less a victim or any less important, but public policy dictates that the perpetrator does not qualify for an enhanced penalty under that circumstance. Ir is true that a hate-crime law looks at the victim, but that is actually not the focus of the law. The true focus is to punish the perpetrator. In America, we are free to think what we want and say what we want, but when our opinions about certain segments of society motivate us to commit criminal acts, then all of us in society are hun.

ARE

HATE CRIME LAWS CONSTITUTIONAJ.1

Yes. On several occasions, the United States Supreme Court has addressed hate-crime laws. There now exists a body of law mat establishes the parameters necessary to have a constitutional hate-crime act. As with many U. S. Supreme Court decisions, there are a number of factors to address, but it is relatively easy to dran a law that passes conS[irutional muster. Two constitutional questions mat are often raised about hate-crime laws are whether they violate me due process clause and whemer they trample on our rights of free speech. If the law is drafred correctly, it will run into problems on neither from. In WiseollSill v. Mitch,lI, 508 U.S. 476


(I 993). the Supreme Court upheld a Wisconsin sratmc that provided for an enhanced penalty where the defendam intentionally selected the victim based on particular characteristics of the victim. The Supreme Coun held that because ilie biasmotivation would have to be connected with a specific act, there was no First Amendment violation. Chief jusrice Rehnquisr wrote the opinion in Miuhtll on behalf of a unanimous COUft. Two themes dominated the opinion. The first is that there is a distinction between illegal conduct and improper poims of view, punishing the prohibited act rather than the expression or viewpoim. The second theme in MitchtlL is that Wisconsin's law did nor create a new crime, but only sought co provide a different sentencing suuCturc for conduct that was already criminal. In this regard. the Chief Justice poims out that motive has ahvays been a legitimate consideration in the sentencing process. In Apprendi v. N<w Jmry. 120 S. Ct. 2348 (2000). the Supreme Courr recencly addressed a due process challenge to the hate-crime penalty enhancement statute from New Jersey. The statue provided for an enhanced penaJty if the trial court judge determined by a preponderance of the evidence that the defendant committed the crime with the purpose to intimidate a person (or group) because of particular characteristics of the victim. The Supreme Court held that the Fourreenth Amendment right to due process and the Sixth Amendment right to a trial by jury, emitle a criminal defendant to a jury determination that he is guilty of every element of the

crime with which he is charged. beyond a reasonable doubt. SENATE BILL 35. During the 200 I General Assembly. I asked the Legislature to pass a hate-crime law here in Arkansas. The lead sponsors were Senator Bill Walker and Represenrarive Tracy Steele. After passing the Senate, it failed in the House Judiciary Committee. The bill was drafted specifically to meet all of the objections previously raised in this arricle. S.B. 35 was modeled after several states' hate-crime Statutes, including Wisconsin. Similar to the Wisconsin natute, the proposed legislation provides for a penalry enhancemem where the defendant purposely selects the person against whom the crime is committed because of the parricular charaaerisrics of the victim. It was also closely tailored to comply with the standard the Supreme Coun provided in

Apprendi. The legislation provided constitutional protections for a criminal defendant because it required that the State provide the defendant with notice that it intended to seek an enhanced penalty and provided that the trier of fact determine beyond a reasonable doubt whether the defendant purposely selected the victim because of the particular characteristics of the victim. In addition, S.B. 35 had one strength not previously addressed. It was communitybased with local control. I think this is important since the nature of hate crime is crime against a segment of the community. If enacted, the law would have permitted communities to stand firm against crimes of bigotry commitred locally. The way the bill

nAnansas becomes one of onlY ahandfUl of states (without a hate-crime law) what message are we sending our Citizens and the rest of the nalion:禄 was structured was to require the community-ejected prosecutor to include "written notice in the information or indictment indicating that the person, upon a finding of guilt. is subject to the enhanced penalties." The prosecutor would have to convince the community-elected judge to aJlow presentation of evidence to the jury. The jury, which is represenrative of the community, then would determine whether to enhance the penalry or nor. S.B. 35 would not strong-arm this enhanced penalty on an unwilling public. bur would leave the decision in the hands of local people. Many opponents of this legislation fear the hate-crime laws will amount to

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prosecuting thought and violating the right to free speech. But we drafted our hatecrime law not to punish speech, bur to punish activity already defined as criminal. As written, our bill created enhanced penalties only for crimes committed as defined under current Arkansas statutes, such as battery, arson, vandalism, etc. Therefore, it wowd nOt apply to teasing or name-calling. It would not en.hance penalties for bigOted ideas, bur for the defendant's actions based upon these ideas. The proposed legislation contained a clear statement that we would not punish "mere abstract beliefs or expressions". The fact that the perpetrator was indeed prejudiced against his victim would not have been sufficient to designate an offense as a "hate crime". The prosecutor would have to show "beyond a reasonable doubt" that the victim was purposely selected due to his race, color, gender, religion, national origin, ethnicity, sexual orientation, or disability. There was a provision that ensured this would nOt be used in rape cases and certain other genderbased crimes. In addition to these safeguards, the final decisions were left in rhe hands of local people. In other words, the elected prosecutor would have ro file for the enhancement, the elected judge would have to allow the evidence to be presented in the senrencing phase, and rhe jury could eirher accept or rejecr the enhancement. Hate-crime legislation cannOt undo the damage caused by bigorry. However, it can be a significant step in the right direction in addressing this serious problem. Ir may begin ro reassure victims of such crimes that rhe communiries in which they live condemn, rarher rhan condone, biasmotivated criminal acts. JUSt as I had many questions to resolve when I first began to carefully look at the issue of bias-motivated crime, I realize thar there may still be some lingering doubts or uncertainries remaining in the mind of the reader. But, in keeping with our public policy of enhancing penalrics for other despicable acts, we also need to find a strong, clear public-policy statement demonstrating mat Arkansas has no room within irs borders for hatred. So I ask one last question: If Arkansas becomes one of only a handful of stares, indeed maybe rhe only stare, nor to take a position against bias 1110tivared crime, whar message are we sending to our citizens and to rhe rest of the narion? •

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II


A GAP IN COVERAGE? FORI WORD By Melva Harmon

I

n 1993, the Arkansas General

An Employer's Liability For Non Compensable Job Site Injuries To Employees

Assembly enacred Act 796, a sweeplllg reform ro the Arkansas

Workers' Compensation Ace The

by Eldon F. Coffman and David Schneider

merits of these changes have been

debated at great lengm. in many different forums since that time.

However, one

side effect of the 1993 changes. that has received

very

little

anention

or

discussion, pOtentially has far reaching effects for employers.

This very real

problem has received so little anemian that many attorneys experienced in bQ[h

workers' compensation and rorr liability, as well as insurance professionals, claims managers, and other business people appear to be unaware of its dangers. In

faCt, a judgment of $100.000.00 was recendy emeeed against one of the scare's largest employers in a court case that would

have

been

a

workers'

compensation claim until Ace 796. Further, there appears to be some question as to whether an employer is covered against such a judgmem by its liability insurance policy. Your insurance committee felt that this is a matrer that you should be made aware of, not only as an attorney but as an employer and, accordingly, sought and obtained the

following article by Eldon Coffman. Chairman, and David Schneider. Legal Advisor of

the Arkansas Workers'

Compensation Commission.

II

The ,Irkaosal Ll~llr

~\I1I路.arkbar.com

The secrion being referred to is Ark. Code Ann. 搂 11-9-1 02 (B) (5) (iii). In essence, that section provides that the definition of compensable injury does nor include injuries which were incurred ar a rime when an employee was not performing employment services or before or after the employmenr relationship was terminated. The purpose here is not to rehash rhese arguments but to discuss what has been, until now, a little explored aspect of rhe narrowing of the definition of compensable IIljunes. The respondents have successfully argued in several cases that, for a claim to be compensable, the employee must be performing an actual employment service ar the time of the injury, even where the claimant was injured on the employer's premises. For example in Beaver v. Benton County Child Support Unit. 66 Ark. App. 153, 991 S. W. 2nd. 618 (1999), a elaimanr who was injured while on a lunch break was denied benefits on the grounds that she was not performing employment services at the time of her injury, even though she was attending an employer sponsored function and was being paid during the lunch hour and was being furnished lunch by the employer. In Harding v. City ofuxarkana. 62 Ark. App. 137. 970 S. W. 2nd 303. (1998). the elaimanr was denied benefits

after she was injured when she tripped on some rolled up carpet in the employer's building while on her way to a smoke break. The Workers' Compensation Commission has followed these Court of Appeals decisions and has denied benefits in a variety of claims involving claimants and breaks. For example In Christian v. Excel Corporation, 2000 AWCC 96. a claimant was denied benefits for injuries sustained when a chair in a break room collapsed, causing him to fall to the floor. The Commission has also denied several cases in which claimants were injured while going to or leaving the restroom area or while on lunch or smoke breaks. Prior to 1993, those 'Ypes of job place injuries would almost certainly have been found to be compensable under either the "close proximity" or "personal comfort" doctrines. Those doctrines provided that injuries incurred by workers while in very close proximity to the place of employment (such as the parking lot). or while undertaking some activity necessary to their comfort and their ability to continue to work (such as restroom breaks, lunch breaks, etc.), would be compensable. However. the Court of Appeals has specifically declared thar the personal comfort doctrine is no longer the law. (See Beaver v. Benton County, supra and Harding

About the Authors Melva Harmon is a practicing attorney in Little Rock and a member of the Association's Group Insurance Committee. Eldon Coffman is Chairman of the Arkansas Workers' Compensation Commission and a member of the Association's Group Insurance Committee. David Schneider is a legal advisor at the Arkansas Workers' Compensation Commission.


v. City ofTrxarkana, supra). only issues raised about At this point, rhe application of the employment services rule is to the area of workers' compensation. However, one last piece of rhe puzzle remains before the issues alluded to above become dear. Arkansas, like other workers' compensation jurisdictions. provides that an injured worker is limited to the benefits he receives pursuant to his workers' compensation claim. This is known as the Exclusivity Doctrine and is codified in Ark. Code Ann. ยง 11-9-1 05. The pertinent part of that section states as follows, "The right and remedies granted to an employee subject to the provisions ofthis chapur. . shall be exclusive of all other rights and remedies of rhe employee... " (Emphasis added). In reliance upon exclusive remedy provisions, most employers have assumed thar all injuries co employees while on me company premises were a maner for workers' compensation and something abour which they need nm be concerned from a premises liability standpoint. However, as outlined above, an employee who is injured because of a slippery resrroom Aoor, or a broken chair, or because steps used on the way to the break room are damaged or slippery may nm have suffered an "injury," as thar term is defined in the Workers' Compensation Act. If that is me case, then such an employee may nm be "an employee subject to provisions of this chapter." Previously, an assumption has been made that even though an employee suffering a non compensable injury at his place of employmenr is not entitled to workers' compensation benefits, the employer would still be prmected by the exclusive remedy doctrine. However, this assumption may nOt be valid. Since the exclusive remedy provision specifically limits itself to those employees which are subject to the provisions of the Workers' Compensation Act, it logically follows that if an employee is injured in an accident nor included in the definition of compensable, then that employee is not subject to the provisions of the Workers' Compensation Act and the exclusive remedy provisions would not apply. This problem was hinted at by rhe Court of Appeals in the Harding decision referred to above. In that opinion, the Court rook the opportunity to state: "It may be true that the interest of both workers and employers would be better served by a more uniform application of an administrative

me

remedy than they would be by Ih~ inh~re1lt

unurtainty ofa tort claim bas~d on premius liobility." (Emphasis added). In Jobr v. Wal-Mart Storrs, Inc., 66 Ark. App. 114, 987 S.E.2d 764 (1999), no benefits were awarded because claimant the definitional failed to satisfy requiremen<s ofยง 11-9-102. Judge Griffen's concurring opinion addressed the implicarions for employers in the event that no remedy exists under the Workers' Compensation Act: ... [Now] that Jobe's claim has been held noncompensable, Wal-Mart cannOt assert the exclusive-remedy proVision of the Workers' Compensation Law as a bar to a civil action in torr. Jobe might assert a torr claim against Wal-Mart based on its statutory duty to provide a safe workplace prescribed by Ark. Code Ann. ยง 11-2-117(a), which reads: Every employer shall furnish employment which is safe for the employees therein and shall furnish and use safety devices and safeguards. He shall adopt and use methods and processes reasonably adequate to render such an employment and place of employment safe and shall do every mher thing reasonably necessary to protecr rhe life. healrh, safety and welfare of the employees. If employees such as Jobe file and pursue tort actions against their employers for gradual-onset injuries that do nor involve rapid repetitive mOtion, it is likely thar the porential exposure facing those employers for defending those claims might be greater than the COSt of providing compensation benefits when one adds the potential recoveries for pain and suffering possible in jury verdicts ... A recell[ example of the problems caused by the present application of rhe employment service rule occurred from a set of facts originally tried before an administrative law judge at the Workers' Compensation Commission. The case was Chris Boudrcau v. Wal-Mart StOrtS, Inc. I The claimant's injury occurred shortly after he purchased a twO wheel dolly ar an employer's sponsored surplus merchandise sale. Afrer completing the purchase, rhe claimant was given permission to take the dolly [Q his personal vehicle. While carrying

me dolly down some steps, the c1aimam slipped and fell, injuring his knee. The litJl irself was captured by a security camera which was monitoring the stairs when rhe fall occurred. The videotape of the incidem clearly shows the c1aimanr's foor slipping from under him on the srairs causing him [Q

In Christian v. Excel Corporation, 2000 AWCC 96, a claimant was denied benefits for injuries sustained when a chair in a break room collapsed, causing him to fall to the floor. fall, rwisting his other leg underncath him. The only factuaJ issue which arose in me case was whether the c1aimanr had been directly ordered to remove the dolly to his vehicle or merely given permission to do so. However, rhe administrative law judge noted that the resolution of this dispute did not even require a finding of credibility in that even the claimant's resrimony did nOt clearly indicate that he was "ordered" to remove the dolly to his vehicle but only that he was advised to move it away from the site of the acrual sale, and rhat he was merely given permission ro take it to his vehicle. The administrative law judge held thar this activity was nor advancing the employer's interest and was neither a primary nor an incidemal acrivity inherently necessary for the performance of the c1aimam's job dudes. For mat reasOn, the administrative law judge found that the claimant was not performing any employment services at the time of his injury and denied and dismissed me claim. That decision was nOt appealed. Alrhough the claimant worked 111 Arkansas. he resided in Missouri and he subsequently filed a lawsuit in rhe United States District Court in Fayctteville alleging that he was injured as a result of rhe respondenr's negligence. That case was tried to a jury and resulted in a verdicr of $100,000.00 against the defendant employer, Wal-Marr, who had been the respondent in the workers' compensation case.

1"01. 16 SO. VSpring 1001.

The ,Irkanm Lalr)er

li


It is interesting to consider the relative values of the District Court case and workers' compensation claim. According to the evidence presented in the court case, me claimant's total medical expenses were approximately $14,000.00. The claimant alleged lost wages in the amoum of $6,000.00 based upon twelve weeks of missed work. For workers' compensation purposes, the lost wages would equate to approximately $3,500.00 (twelve weeks of disability, times the claimant's total disability ra<e of $291.00). Also, an injury of the type suffered by the claimant typically results In 5% to 10% anatomical impairment. Based upon the claimant's partial disability rate of $213.00 per week, it appears that, had the claim been compensable, the claimant would have been entitled to receive something over $2,500.00 in permanent disability benefits. Even without applying the workers' compensation's medical fee schedule to the amount of the claimant's medical expenses, the totaJ value of the workers' compensation claim, if it had been accepted and paid in roral by the employer as a workers' compensation claim, would have involved about $20,000.00. In other words, me verdict in the civil tort claim was approximately five times as much as it would have been In the workers' compensation claim. The Boudreau case is ptesently on appeal before the Eighth Circuit Court of Appeals. N the Boudreau case illustrates, an employer is potentially liable for injury which a claimant suffers at his place of business which is not compensable. That does not mean that an employer will always be liable anyrime an employee is injured on his premises JUSt because the injury is nor compensable. Obviously, an injured employee who is not covered by the \'\Iorkers' Compensation Act would have to show that some negligence by the employer occasioned the injury and convince a jury of the employer's liability. At this point, many employers still would nor be overly concerned. After all, most employers rely upon their premises liability insurance co provide coverage for them in the event that persons are injured on their business property or as a result of their business activity. However, 111 the circumstances we have discussed in this article, premises liability insurance coverage is not a given. Commercial liability insurance policies

me

l6

Til ,lrlamlI.IW)/r

w"":arkhmom

generally follow a standardized format with occasional additions or changes to fit a parricular business. A review of the general commercial liability insurance form reflects thar such policies comain an exclusion from bodily injuries to employees arising out of, or in, the course of employmenr by the insured or while performing duties related to the conduct of the insured's business. It might be argued that an employee is not acting in the course and scope of his employment if he or she is injured while on a break or is not in some other way actually engaging in employment services. However, it should be noted that ptiot to 1993, Arkansas Courts had found that injuries which occur while an employee was on break. or was in close proximity to the business, and in a variety of other circumstances, did sustain injuries which arose our of and in the course and scope of their employment. Arkansas CourtS had essentially held that even though an employee might be performing some act of personal comfort or in some orher way making a minor deviation from his or her employmenr, he or she would still be acting in the course and scope of their employmenr unless the departure was so great that an intent' ro abandon the job could be inferred. 2 It should also be noted that the 1993 changes to the Arkansas Workers' Compensation Act did not change or add to the definition of job activities which "arose out of or in the course and scope of employment." Instead, the Act added a new requirement that, to be compensable, an injury must have occurred while an employee was acmally performing an employment service. Commercial liability carriers will very likely argue that the definition of compensable injury created by the Work~rs' Compensation Act is irrelevant to the insurance contract and the exclusion is only for those activities which arise out of or are in the course and scope of a claimant's employment. Since Courts have traditionally defined this phrase as including claimants who were on break, eating lunch, or making other minor deviations from their regular employment duties, the commercial liability carrier may rely on the exclusion and deny coverage if such employees pursue tort claims in Civil Court. The employmenr services question may create an anomalous situation when the workers' compensation insurance carrier and the commercial liability carrier are the

same company. or where the employer is self insured in both areas. In such cases. there may be times in which the respondent would prefer the limited damages and simplified litigation procedures in the workers' compensation forum to the perils of civil court litigation. Conversely, the claimant might prefer to have his side heard in a traditional court room where potential attorney fees and damages are usually higher. Cons~quently, there is some anecdotal evidence suggesting that workers' compensation claims have been filed in cases where the respondents have accepted a compensability in an attempt by the claimant to have the Commission find that me injury is nOt compensable so that the claimant would be free to pursue a tort claim. We believe ir would be wise for employers to make certain that their workers' compensation and liability insurance policies be written by the same company. Otherwise, the employer could be caught in a situation where each carrier is saying that the loss is the responsibility of the other one. There are many issues that would need to be resolved before it could be flatly said that an employer is liable for a non compensable, job place injury and whether the business's commercial liability coverage would apply. On the other hand, it is clear that a very real potential exists for an employer to be found in me awkward situation of being liable for a worker's injuries and not be able to rely upon either workers' compensation insurance or commercial liability insurance to bear the risk of this liability. These are certainly pitfalls to which employers should give careful consideration. Finally, me faCt that most medical insurance policies exclude benefits for injuries that are work related could be devastating to the claimant, when it is unclear whether or nor he was performing employmenr services at the time of his Il1Jury. At the urging of then Governor Carl Bailey, Arkansas's first Workers' Compensation Act was passed in 1939 because the jury verdicts against employers for on the job injuries were keeping industry from locating here. Now, sixty years later, are we back where we started? â&#x20AC;˘ I.

wee File No. 409708

2.

Co/mum's Bflr-B-Qut, tt. al v. Ful/tr, 262 Ark. 645, 559 S.W. 2nd 714 (1978).


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O;S/)ul, U/'SOllilioll Sf'/'lliru \1'orldwidt


Judicial AdvisOl'Y Opinions The Jlldicial Advisor)' Opinions are wri1fett WId provided by 'he Judicial Discipline and Disability Commission. Mdennan Pamela Redfem Wesl Fork Gry Council 11,. Hon. ainron K. (Cas<y) Jones Wesl Fork Murucipal Judge January 18.2001 Re JEAC Opuuon No. 2000-11

Dar Ms. Redfern and Judge Jones: Prior to me runoff e1eaion for West Fork Municipal Judge, Ms. Redfern requested our opinion as to whether Clinton K (Casey) Jones (then one of the candidates in the runoff) wouJd have a conflict of interest by bejng both a Fayetteville City Pro5eCUlOr and West Fork Municipal Judge. Judge Jones was in fact elected by the voters to the position of Municipal Judge and at the request of the Executive Direcror, Judge Jones responded to Ms. Redfem's lener and provided additional information. Canon 4G of the Code of Judicial Conduct prohibirs the practice of law by a judge in any of the courrs of Ihis State. This provision St:3tes the ideal and were it not for financial and praclical considerations it wouJd be much preferable if Ihis provision applied to all judges including Municipal Judges. Recognizing that many Municipal Judge offices are under Arkansas law classified as part-time judicial offices an exemption appears in Section B of the Applicalion section of the Code from compliance with Canon 4G. The position of West Fork Municipal Judge is a cominuing parr-lime judicial office and accordingly under Arkansas law and the Code the West Fork Municipal Judge may praaice law. As v.-e stated in our Opinion 98-02 " ...while the Code StOpS shon of a caregoncal prohibition of the practice of law by pan-time judges, it is clear that restraint and caucion are called for. Because the guidelines are necessarily indistina, finding the dividing line is problematic." either Arkansas law nor the Code of Judicial Condua prohibirs a person who practices law as an assistant city anomey from one city from being a pan-time municipal judge in another city. That person, however, shouJd be very se.nsitive ro me faa that conflictS can and will occur and shouJd be mindful of numerous provisions of the Code mat would be applicable. \V/e emphasize thai a cominuing part路time municipal judge musr make the judicial office first in service and priority. Honorable Richard E. Gardner, Jr. Chancery Judge January 24, 2001 Re: Advisory Opinion 2000- t 3 Dear Judge Gardner: You have asked this committee to consider whether it is advisable for your wife to take a job which wouJd require her to solicit business for her

employer from various businesses in me area of Russellville. Her solicilalions would be under me name of her employer, which provides accounting and bookkeeping services, as well as advice regarding workers compensation insurance and employer-employee relations, raxes and orner business relaled matters. Such advice wouJd nm be provided by your wife, but mrough her employer, a Florida corporation. You would have no connccrion with rhe business in any manner. Where your wife chooses 10 work is, of course, beyond Ihe aegis of this committee. The Commemary to Canon 4D offers perrinem guidance: "...a judge should discourage members of the judge's family from engaging in dealings mat would reasonably appear to exploil the judge's judicial position. This rule is necessary 10 avoid creating an appearance of exploitation of office or fuvoritism and to minimize the potential for disqualification. " We see no immediate problem in the activities you describe. Whether there are potencial conAicrs between the work your wife is considcring and your judicial duties would depend on circumst:lllccs not now available to us. Problems could conceivably arise involving an appearance of paniality and conflicrs of ilHerest. If, for example, a business solicited by your wife were an expeo:alH or inchoate litigant or, due to the nature of irs elHerprise, were frequcntly involved in cases heard by you, your imparriality may be reasonably questioned. Canon 3E provides that: "a judge should disqualifY himself or herself in a proceeding in which Ihe judge's imparriality might reasonably be questioned, induding instances where (a) the judge has a personal bias or prejudice concerning a pany..: Funhe.r, Canon 2 provides that a judge should avoid the appearance of impropriery in all the judge's activities. However, the mere Faa that a judge may ha\'c a bias or prejudice does nm make the trial judge so biased and prejudiced as (0 require disqualification in future proceedings. Malthcws v. Rodgers, 279 Ark. 328, 651 SW2d 453 (I 983). Bias is a subjective: matter to be confined to rhe conscience of the judge. Id. at 331. Honorable XoUie Duncan Chancery and Proba.te Judge

March 19, 200 t Re JEAC Opuuon No. 200 1-0 I Dear Judge Duncan: You wrote that you have been nominated to the Board of Advisors for Legal Assistanrs at the Northwest Arkansas Community College. You have staled that this is a.n unpaid position; that it docs nOt involve the rendering of any legal

opinions and thai the principal duties of the board are to assist in the selection of curriculum, course material and ICliching scaff. You Slaled that you have advi<ed the College that you would be seeking our opinion pnor to accepting this position. Service by a judge in connection wim educational institutions is mentioned several times in Ihe Code of Judicial Conduct. In me '1erminology" scaion subparagraph (ii) under the definition of "Economic interest" it Slates that service by a judge as an officer, director, advisor or orner active participation in an educational organizarion does not creale an "Economic interesL" Canon 4B Slales, "A judge may speak, write, lecture, teach on and panicipare in orner ao-a judicial aaivities concerning the law, me legal S)'Srem, the adrninisuation of justice and non-lega.I subjeas, subject 10 the requjremems of rnis Code." (Emphasis supplied) The Commenrs under this section Stare in part, "As a judicial officer and person specially learned in the law, a judge is in a unique position to comribute to the improvement of the law, the legal system, and the administralion of justice, including revision of substantive and procedural law and improvemem of criminal and juvenjle justice. To the extent thaI rime permirs, a judge is encouraged to do so, either independently or through a bar association, judjcial conference or other organiz.'Ilion dedicated to the improvement of the law." We undersrand thaI the College is a Slate institution but since your service on the Board of Advisors is in connection with me improvement of the legal sysrem we do not believe that this would violate Canon 4C(2). Canon4C(3) srares, "A judge may serve as an officer, direcror, truStee or non-legal advisor of an organizalion or governmemal agency devoted to the improvement of Ihe law, rhe legal system or the admjniso-acion of juslice or of an eduC:llional, religious, charitable, fraternal or civic organjzation nOI conducted for profiL .... subject to the other requiremems of the Code and cerrain limiclIions mal do not apply here. "Complete separation of a judge from ao-a路 judicial aaiviries is neither possible nor wise; a judge should not become isolaled from the community III which the judge lives." (Commentary to Canon 4A) We are of the pinion Ihar your service on the board as described in your letter will not viol:He the Code ofJudicial Conduct so long as you conduct this and all of your auajudicial aaivities 50S that they do not: (I) cause reasonable doubt on your capacity to act impartially as a judge; (2) demean your judicial office; or (3) interfere with the proper performance of your judicial duties. (Canon 4A)


Judicial Disciplinary Actions The Judicial Disciplinary Actions are wril/en (lnd provided by tile Judicial Discipline and Disability Commission.

Judge John E.Jennings Arkansas Court of Appeals January 23, 2001 Dear Judge Jennings. It was aJleged that during the evening of March 7 2000, on Highway III, near the Pulaski/Saline County line, Arkansas. you were arrested and subsequently charged with driving while intoxicated. You refused born field sobriety and breachalyset tests. On Augus< 3, 2000, you were found guilty of driving while intoxicated, In Bryant MunicipaJ COlin. The Judicial Discipline and Disability Commission found your conducr on March 7, 2000 to be a wilful violation of Canons I and 2A of the Arkansas Code of Judicial Conduce. In view of these circumstances, ir is the judgment of the Judicial Discipline and DisabiJiry Commission that you are hereby admonished.

Honorable Fred D. Davis, III Circuit Court Judge Eleventh Judicial District January 26, 2001 Dear Judge Davis, During the January 19, 2001 meerings the Judicial Discipline and Disability Commission decided to issue a Lener of Admonishmem to you in complaim number 00-129. In that complaim the Commission found you violated the Code Of Judicial Conduct. The complainam. the Arkansas Supreme Court issued a writ of mandamus directing you to emer an order in a pending case. An inmate in the Arkansas Deparrmem of Corrections. Larry Ladwig, filed a petition in August of 1997 seeking post-trial review of his semence. You failed ro rule on the petition until February of 2000, when the Supreme Court issued a writ of mandamus directing you to act. In the opinion dated February 17, 2000, the Supreme Court stated that they were unable to communicate with you. The court sent rwo leners and made telephone calls to your office. Those letters and calls went unanswered. When me Supreme Court was unable to obtain a response to their

communications, the court concluded that there was no good reason for me delay and issued the writ of mandamus directing you to enter an order on Ladwig's petition. At the Probable Cause Hearing on this matter held on January 19, 2001, you provided testimony ro the Commission that you had not been told of the letters from the Supreme Court staff attorney nor had you ever been told of the phone caUs by your case coordinator. And that subsequent to this matter coming to the Commission's attention, you terminated the employment of your case coordinator. The Code of Judicial Conduct requires that a judge dispose of all judicial maners promptly. efficiently and fairly. and that a judge diligently discharge the judge's administrative responsibilities. Your delay in ruling on the Ladwig petition and failure to properly supervise your staff violates the Code. For your conduct in violating these twO provisions of the Code of Judicial Conduct, it is the decision of the Commission that you be admonished. This public admonition constitures adequate discipline and no further action is warranted. This Commission's action is public information. Honorable Bill Ross February 7, 2001 Dear Judge Ross: The purpose of th is letter is to acknowledge receipt of the signed Memorandum of Understanding bef\.veen you and the Judicial Discipline and Disabiliry Commission and to notify you that the Commission has approved that signed Memorandum. That Memorandum acknowledges that while the Commission was investigating allegations of your improper conduct. on December 31, 2000 you completed your term of office as Blytheville Municipal Court Judge and ceased performing judicial functions. You have agreed that you will never again serve as a judge or accept appoimment ro or seek election for judicial office in the State of Arkansas. The Judicial Discipline and Disability Commission has agreed to take no further action in any of the four pending

complaints noted above unless you violate the terms of the Memorandum of Understanding and again serve as a judge. The Commission has insnucted me to give you notice of this final action. This final action is public information. The Honorable Bill Ross MEMORANDUM OF UNDERSTANDING February 1, 2001 This Memorandum of Understanding is made between Bill Ross, former Blytheville Municipal Coun Judge. (hereinafter referred to as Respondent), and the Arkansas Discipline & Disability Judicial Commission (hereinafter referred to as "Commission"). There are presently pending before the Commission Statements of Allegations arising from complaints no.98- 281, 98331, 99 215, and 00-304 against Respondent. In lieu of a hearing on these maners, the parties agree and consent to submit the following Memorandum of Understanding. STATEMENT OF ALLEGATIONS, COMPLAINT NUMBERS 98-281,98331,99-215 AND 00-304 For the limited purpose of resolving these complaints. the Respondent admits to cerraln allegations contained in the complaint. A copy of those portions of the Statement of Allegations is appended to and made a part of this Memorandum of Understanding. One allegation has been withdrawn. Respondent denies the other allegations. The Commission believes that it has evidence which is sufficient to make a finding that Respondent did commit the acts alleged therein. However, in light of the agreed resolutjon of this maner, the parties have agreed that it would be a waste of resources to litigate the issue. Respondent has completed his term of office as Blytheville's Municipal Coun Judge on December 31, 2000 and has ceased performance of judicial functions. See IIIdIcIaI Dlsclplllilry Continued on Page 40

1'01. 16 lID.

l/Spring lOO I The ,\rkmas LaWler

19


JudlclalllllclPllnrv Continued from Page 39

Respondent agrees that he will never again serve as a judge or accept appoinrmem to or seek election for judici31 office in the State of Arkansas. It is agreed between the parties that upon execution of this Memorandum of UnderS[anding and irs approval by the Commission, no further action will be taken by rhe Commission relative to complaints nos.98-281, 98-331, 99-215 and 00-304. The Commission lener announcing the resolution of complaint nos. 98-281, 98331, 99-215 and 00-304 will nOte that while the Commission was investigating aJlegations of improper conduct respondenr completed his term of office and agreed never to serve again as a judge in the State of Arkansas. It is further agreed between rhe parties that if the Respondent violates terms of rhis Memorandum of Understanding and serves as a judge or accepts appointment to or seeks election for judicial office, the Commission may reinstare complaints no.. 98-281, 98-331, 99-215 and 00-304 and shaH proceed In accordance with Amendmenr 66 of the Arkansas Consrirurion, Arkansas Starutes and rhe Procedural Rules of the Commission. The Commission may consider and use this Memorandum of Understanding as evidence in any subsequent consideration of the allegations in complaints no. 98-281, 98-331, 99-215 and 00-304. It is furrher undersrood and agreed between rhe parties that the files relative ro complaint nos. 98-281,98-331,99-215 and 00-304 shall be sealed except for this Memorandum of Understanding and all proceedings, documelHs and pleadings remain confidential as provided for by Arkansas Statutes and the Procedural Rules of the Commission, except in the existence of a valid court order ro rhe conuary. The execution of this Memorandum of Understanding is not intended to be a waiver by Respondent of the confidentiality provisions except as provided for in this Memorandum of Understanding, Arkansas Starutes and the Procedural Rules of the Commission. In rhe event Respondent denies, implies or Otherwise suggests thar the Commission had no probable cause ro proceed against Respondent with regard to these complaints, the Commission is authorized to respond accordingly. However, this shall nOt preclude Respondent from asserting his

me

,10

The Ilrkansas Lallyer

1I\\\f.arkhar.eorn

innocence of any allegation which he has nor admitred. Wirness our signature, this the Isr day of Feb., 2001. STATEMENT OF ALLEGATIONS CASE # 98-2811 98-331, 99-215 It is alleged thar Judge Bill Ross of the Blyrheville Municipal Courr by rhe conducr indicated below is subjecr to a sanction including removal from office pursuanr ro A. CA. 16-1041 0 (b) (3) for the commission of conduct involving dishonesty, fraud, deceit or misrepresentarion; and A.C.A. for 16-10410(b)(4) for the commission of conduct rhar is prejudicial to me adminisrration of justice and A.CA. 16-10-410 (b)(5)for willful violarion of the Code of Judicial Conduct. S. The respondent has presided over criminal cases involving his sister, Linda French. She was arrested on September 1, 1997 and charged with disorderly conduce, public inroxication and refusal to submir to arreSt. Her first appearance was on Seprembet 3, 1997. The respondent presided at rhae firse appearance and has continued the case seven times at least until January 20, 1999. Ihere was no disposition of any of these three charges. 6. The respondenc has presided over

criminal cases involving his nephew, Mark Stevenson. Stevenson was arrested in Blytheville on August 9,1997, and charged with careless driving. The respondenr tOok action on thar case, continuing ir several times unril OctOber 22, 1998. Srcvenson's first appearance was scheduled for August 21, 1997. 7he case was continued by rhe respondent to September 3, 1997, then to September 25, 1997 which is a conflict Court date. On September 25, 1997, Stevenson failed to appear before conflicr Judge Lee Fergus. Judge Fergus set a $250. 00 cash bond. On Ocrober 20, 1997, the case was continucd to December 4, 1997. On Decembet 4, 199 7, Stevenson again failed ro appear and a $250. 00 cash bond was set by conflict Judge Lee Fergus. 7. Stevenson was arrcsred and given anomer court date of January 22, 1998 ro appear before Judge Fergus. Stevenson again failed to appeat and Judge Fetgus set a $500.00 cash bond. On June 26, 1998, Srevenson was arresred and appeared before his uncle, Judge Ross. Judge Ross continued the case uori1 July 22, 1998 which was a conllicr court dare. On July 22, 1998, Judge Ross called from Osceola, Arkansas and told rhe clerk's office ro have Stevenson's case See IIdcIIIllllclPllnrv Continued on Page 52

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Arkansas Bar Association . CLE Calendar

5TH ANNUAL JOINT

LAw CoNFERENCE Arkansas & Oklahoma Bar Associacions May 18-19,2001 Best Western Inn of [he Ozarks Eureka Springs, Arkansas ENvIRONMENTAL

TAX ISSUES FOR

ON-TAX LAWYERS

Thursday, May 24, 2001 Bowen School of Law - UALR Li[t1e Rock, AR ANNUAL MW1NG

JlIl1e 13-16,2001 Arlingron Hotel Hot Springs, Arkansas

BEST OF CLE, plus THE N,w ARKANSAS CoURT SYSTEM June 25-29, 2001 Bowen School of Law - UALR LirtIe Rock, Arkansas

CNA: RISK MANAGEMENT FOR ATTORNEYS Thursday, October 4, 200 I (Location to be announced.)

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Friday, October 26, 200 I Holiday Inn I o"hwes[ Arkansas Springdale, Arkansas

RESCHEDULED THE BA KRUPTCYDEBTOR/CREDITOR LAW INSTITUTE originally scheduled for May 4, 200 I, HAS BEEN RESCHEDULED FOR JULY. THE EXACT DATE WILL BE ANNOUNCED LATER. Watch the Arkansas Bar Association web site for more derails: www.arkbar.com or call 501-375-3957

For mou informacion, contact Virginia Hardgravc. Arkansas Bar Association, 800-609-5668, 501-375-3957, yhatdll"'ye@arkbar.com OR CHECK OUT THE Cll PAGE or www.arkbar,rom

BFST OF Cll, PLUS THE NEW ARKANSAS COURT SYSTEM, PlAYING BY THE NEW RULfS Thc Arkansas Bar Association is proud ro offer the "Best ofCLE, plus the New Arkansas Coun System: Playing by the ew Rules." Again this year, we showcase Arkansas' mon oursunding CLE pr~nrations from our most popular seminars and offer a week-long program Cllled "Best of CLE.... However, we are also offering something new and different. If you practice in state trial coun, the practice of law as you know it will change drastically this year. 2001 will .see a major reorganization of our stare trial coun system under the new Judicial Article, Amendment 80 to the Arkansas Constitution. So, in addition to 27 hours of the best of our CLE programs for the past year, we will offer three hours of the latest information on coun reform: new legislation, amendments (Q the Arkansas Rules of Civil Procedure and how local judicial districts will be reorganized into divisions. This will include "nuts 'n bohs" information about administrative issues such as filing, use of cover sheers, docketing and case tracking, as well as how the merger of chancery and circuit courts will affect the right to jury erial and raising equitable defenses. So, make your choice among a variety of timely legal issues, taught by highly quaJified speakers who were rated among the best of those who taught for us in the past year. You can also hear those in the know, including state triaJ judges, explain how the practice of law will change in state courrs this year. Watch the Arkansas Bar Associacion web sitc for more dctails:

www.arkbar.com or call 501-375-3957

The 103rd Annual Meeting of the Arkansas Bar Association Arlington Hotel, Hot Springs June 13-16, 2001 This is your opportunity to: See ABOTA Masters in Trial present a Trial Demonstration from Opening to Viewing Jury Deliberation

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41


ta\\ )1'1' lIiSl'ipliUiIl') \l't ions The Lawyer Disciplinary ACliolis are writIell and provided by rite Supreme Courl of ArktmSlIs' Comm;lIee 011 Professional CO"dUCI. NOTICE OF RE[NSTATEMENT OF ATTORNEY'S PRIVILEGE TO PRACT[CE LAW WILLIAM WAYNE WATT Little Rock, Arkansas January 3[.2001 The Arkansas Supreme Court Comminee on Professional Conduct has carefully considered William Wayne Wau's petition for reinstatement [0 the prncrice of law following his suspension imposed on January 1, 2001. h is the decision of the Committee {O gram Mr. Wan's petition. Therefore, the suspension of Mr. Wan's ArkanS2S law license imposM by the Commirree is he~by terminate<! and he is entitled (0 engage in the practice of law within the State of Arkansas effective January 31, 2001.

NOTICE OF CAUTION BLAINE JACKSON BeUa Vista, Arkansas January 9. 200 1

The formal charges of misconduct aro.st: from information brought to the Committee's anention. Blaine Jackson, an anorney practicing in Bella Vista, Arkansas. placed advertisement in the 2000-200 I onhwest Arkansas Regional Telephone Directory. The advertisement stated that Mr. Jackson was an Estate Planning Law Specialist certified by the Estate Planning Specialty Board, Inc. Estate Planning Speciality Board, Inc., is not an emity authorized by the Arkansas Supreme CoUrt to recogni7.e an attorney as a specialist under the Arkansas Plan of Specialization. Mr. Jackson stated in his response that he is an attorney licensed to practice law in Arkansas and practices primarily in the areas of probate, wills, trusts, estate planning, estate and gift taxes, and litigation involving those maners. Mr. Jackson, former Chairman of the Arkansas State Bar Association Specializing Comminee, became aware of an estate planning specialist designation offered by the National Association of Estate Planners and Councils (NAEPC). Mr. Jackson determined that the r«(uiremenu for certification under the AEPC plan were quite similar to estate planning specialization plans administered by other nares. Mr. Jackson applied for designation as an Estate Planning Law Specialist under the NAEPC plan and received certificarion as a specialist under the plan on May 14, 1999. Mr. Jackson offered that t\vo United States Supreme Court cases have held that the restrictions

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contained in Rule 704(c) of the Model Rules of Professional Conduct are an unconstitutional limitation on free speech and are not enforceable. The cases, Put v. Aflomq Dixiplinary Commission ofIllinois, 496 U.S. 91 (1990) and Ibaan v. Fwrida. 512 U.S. 136 (1994), were incorporated imo Mr. Jackson's response. Upon consideration of the cases cited to the Committee, the Committee finds that the Put case, a plurnlity decision holding that a state cannot categorically ban an attorney's naremcm about certification, does nm apply in this maner as the prohibition contained within Model Rule 7.4(c) does not rise to a categorical ban and is, therefore, consistent with the holding of Peel. Upon consider:uion of the formal complaint, the response herein, and the Arkansas Model Rules of Professional Conduct, the Committee on Professional Conduct finds: I. That Mr. Jackson's advertisement wherein he stated that he was "an Estat'e Planning Law Specialist certified by the Estate Planning Specialty Board, Inc." violated Model Rule 7.4(c) as Estate Planning Specialty Board, Inc., is not an emity authorized by the Arkansas Supreme Court to recognize an anomey as a specialist under the Arkansas Plan of Specialization. Model Rule 7A(c)requires, in pertineor pan, thai a lawyer not stare or imply thar the lawyer is a specialist ocepi that a lawyer who has been recognized as a specialist under the Arkansas Plan of Specialization approved by the Arkansas Supreme Coun may communicate the fact during the period that he or she is a "Board Recognized Specialist" under the plan. WH EREFORE, it is the decision and order of the Arkansas Supreme Court Committee on Professional Conduct thai Blaine Jackson, Arkansas Bar 10 #79099, be, and hereby is, CAlJT10 ED for his conduct in this matter.

JOANNA BOYLES TAYWR Huntsville, Arkansas January 9, 200 1 The formal charges of misconduct upon which this Order is premised arose from the complaint of Dreena Foy. Joanna Boyles Taylor, an anorney primarily prncticing in HuntsVille, Madison County, Arkansas was employed by Mrs. Foy to pursue an ancillary probate proceeding on her behalf. Mrs. Foy was oecurrix of her husband's probate estate, the esu.te of Douglas Lynn Foy. The probate estate was filed in Texas and Mrs. Foy was required to file an ancillary probate esrate in Madison County, Arkansas, because of some real property located there. After an initial discussion, Ms. Taylor wrote Mrs. Foy'sTexas counsel on March

29, 1997, informing him of the documents necessary for the filing of the Arkansas ancillary probate estate and the amount which would be required for filing fees and anorney's fees. On August 15, 1997, Mrs. Foy, through her Texas counsel, caused the necessary documentS to be mailed to Ms. Taylor. There were no further communicarions between [he panics until March, 1998 when Ms. Taylor informed Mrs. Foy that $600.00 was needed in order ro finalize and file the necessary paperwork. On March 2, 1998, Mrs. Foy forwarded a check for $600.00 to Ms. Taylor. The neX{ communication between Ms. Taylor and Mrs. Foy came vicariously through Mrs. Foy's accountant, Mr. Jack Savage, on September 23, 1998. At that time, Ms. Taylor r«(uested the names and addresses of the decedent's children. Mrs. Foy tendered this information to Ms. Taylor by letter that same dare. The ancillary proceeding was not initiated, despite the receipr of the all the r«(uested information, umil March 25. 1999. Ms. Taylor admitted the delay and explained that the fuilure to pursue the matter for over a year was an isolated incident in her law firm. She explained that she was shocked when she realized that such a delay had occurred. A Final Order was entered in the estate on December 6, 1999. However, as of August 30, 2000, Mrs. Foy had not heard anything further from Ms. Taylor since September 23, 1998, ocepl for a letter sent to her on ovember II, 1999, containing Ms. Taylor's r«(uest for a verified statemem, which Mrs. Foy executed and returned on December 2, 1999. Ms. Taylor admitted that she had not informed Mrs. Foyof her actions taken in the ancillary eSlate proceeding, nor had she provided copies of filings to Mrs. Foy, which caused Mrs. Foy to be unaware thai a Final Order had been emero:l. Upon consideration the formal complaint, response herein, and the ArkanS3S' Model Rules of Professional Conduct, the Committee on Professional Conduct finds: 1. Thar Ms. Taylor's conduct violated Model Rule 1.3 when despite being paid for filing an ancillary proceeding for Mrs. Foy on March 2, 1998, Ms. Taylor fuiled to file the ancillary estate of Douglas Lynn Foy in the Madison County Probate CoUrt until March 25, 1999. Model Rule 1.3 r«(uires that a lawyer aCt with reasonable diligence and promptness in representing a client. 2. That Ms. Taylor's conduct violated Model Rule 1o4(a) when she failed to inform her client, Mrs. Foy, that she had filed the ancillary probate estate; when she failed to advise her client that the Final Order in the ancillary probate estate had been enccred; and when she failed to provide any copies of the documents filed in the


tiln )1 1" IIiSripIiDiIl") \l't ions 1

ancillary probate CS£3tC' to Mrs. Foy. Modd Rule 1.4(3) requires thai a lawyer ko:p a diem reasonably informed about the statUS of a marter and promptly comply with reasonable requests for information. WHEREFORE, it is the decision and order of the Arkansas Supreme oun Committee on Professional Conduct thai JOANNA BOYLES TAYLOR. Arkansas Bar #94044. be and hereby is CAUTIONED for her conduct in this matter. RAYMOND WEBER Shenwood.AIkan~

Januuy 26, 2001 The formal charges of misconduct upon which this Order is premisai arose from complaint of Gail Manhews. an anomey practicing law in Little Rock. Raymond Weber, an attorney practicing law primarily in hcrwood, PuJaski Counry. Arkansas, sem an advertisement fO Doris Thomas, an indjvidual who had been sued by Mr. M:mhews. The complaint reflectS that Mr. Manhews represenrs Charles Green in the mailer of Charla GrulJ v. Doris Thomas, Pulaski County Case No. CIV2000·S544. Shortly after Mr. Manhews served Ms. Thomas wim process, his office received an advertisement from the office of Raymond Weber. The advertisement was obviously intended for Ms. Thomas bm was inadvertently sent to Mr. Marlhews' law office instead. The advertisement offered Ms. Thomas an opporrunity to StOP the garnishment of her paycheck. Funhe.r. it :advised Ms. Thomas mat she might qualify for Chapter 13 Bankruptcy. The advertisement failed to advise Ms. Thomas that if she had any complaints about the letter, she could contact the Committee on Professional Conduct. Further, the letter fails to disclose how Mr. Weber or his agents obtained the information concerning the entry of a judgment and ensuing garnishment. Both of these disclosures are n:quired by the Arkansas Model Rules of Professional Conduct. Following Mr. Weber's receipt of the formal complaint, the respondent attorney and the Acting Executive Director undertook discussions which have resulted in an agreement ro discipline by consent pursuant to Section SC. Procedures of the Arkansas Supreme Court Regulating Professional Conduct of Arrorneys at Law (Procedures). Upon consideration of me formal complaim, admissions herein, me terms of the proposed consem to discipline hereinafter stated. the Alternate Committcc on Professional Conduct's approval thereor, and the Arkansas Model Rules of Professional Conduct. the Comminee on Professional Conduct finds: I. That Mt. Weber's conduct violated Model Rule 7.3(b) when he failed to include the

me

following statement in his advertisement concerning garnishment: "ANY COM· PLAI TS ABOUT THIS LETTER OR THE REPRESE TATIO OF ANY LAWYER MAY BE DIRECTED TO THE SUPREME COURT COMMITTEE PRO· FESSIONAL CO DUCT. C/O CLERK. ARKANSAS SUPREME COURT. 625 MARSHALL STREET. LITTLE ROCK. ARKANSAS 72201. Model Rule 7.3(b) allows. in pertinenr part. that a lawyer may solicit professional employmenr from a prospective client known to be in need of legal ~rvices in a particular maner by written communicuion, with the requirement that the written communication include the following S£atement in capiraJ lerrers, "ANY COMPLAI T ABOUT THI LETTER OR THE REPRESE • TATIO OF ANY LAWYER MAY BE DIRECTED TO THE SUPREME COURT COMMITTEE 0 PROFESSIONAL CONDUCT. C/O CLERK. ARKANSAS SUPREME COURT. 625 MARSHALL TREET. LITTLE ROCK. ARKA SAS 72201." 2. That Mr. Weber's conduct violated Model Rule 7.3(d) when he failed to disclose on the adverri~mefl{ mailed from his office how he or his agentS obrained rhe information concerning the entry of a judgmenr and ensuing garnishment. Model Rule 7.3(d) requires thar any wrinen communication prompted by a specific occurrence involving or :affecting the intended recipiem of the communicarion or a F.unily member disclo~ how the lawyer obrained the information prompting rhe communication. WHEREFORE. in accordance with the consent to discipline presenred by Mr. Weber and the Executive Director of the Office of Profcssional Conducr, it is the decision and order of the Arkansas Supreme Coun Committee 011 Professional Conduct that RAYMOND WEBER. Arkansas Bar ID #77142. be. and hereby is. CAUTIO ED for his conduct in this matter.

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TERRY D. HARPER Fayetteville., Arkansas January 4. 200 I The formal charges of misconduct upon which this Order is premised arose from information thar came to the attenrion of the Comminee through a newspaper article. Terry D. Harper, an attorney primarily practicing in Fayetteville. Washington County. Arkansas, was issued a speedingcitarion by the Arkansas State Police: all February 6, 2000. The citation required him to either pay the fine prior to March 2, 2000 or appear in rhe Huntsville Municipal COllrt at 1:00 p.lll. on March 2,

2000. Mr. Harper did not pay the fine nor appear in COUf( ar the specified rime and date. According to Mr. Harper, he lost the citation and forgot the exact trial date. Judge W.Q. Hall. the Huntsville Municipal Coun Judge. caused a new charge. failure to appear, to be issued against Mr. Harper. On March 6. 2000, Mr. Harper called rhe Huntsville Municipal COLIn Clerk and cmered a plea of not guilty to rhe charges of speeding and failure to appear. Mr. Harper's case was set for trial at 10:00 a.m., on April 13. 2000. Mr. Harper was informed of the new date of April 13th. when he called to enter his ple:a of nor guilty. However. Mr. Harper failed to appear on mat date and time. Mr. Harper advised the Committcc that on or about April 13. 2000. he asked his law parmer. Scon E. Smith, to represent him in the matter before Judge Hall. It was Mr. Harper's recollection that Mr. Smith and Mr. Billy AJlred. the prosecuting anorney for Hunrsville. engaged in plea negotiations on that date. Judge Hall then issued a bench warrant for Mr. Harper's arrest and issued an additional failure to appear charge against Mr. Harper. Subsequently. Mr. Harper surrendered himself to arrcst and posted a $500.00 bend. On July 6. 2000. M,. Harper

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til\\ ~lll' lIisripliRiIl'~ appeared before Judge Hall and changed his plea to guilty to all duee charges. Judge Hall sentenced Mr. Harper to ten days in jail, suspended on the condition he complete flve days of public service. Further. Mr. Harper was ordered to pay a fine of $1 00 and $25.00 in COstS on each of the three charges. Mr. Harper did admit to the Committee that the matter slipped his mind and he did forget to handJe the matter in a timely fashion. Upon consideration the formal complailll, response herein, and the Arkansas Model Rules of Professional Conduct. the Committee 011 Professional Conduct finds: I. That Mr. Harper's conduct violated Model

Rnle 8A(d), to w;t: (;) On March 2, 2000, he failed to appear before the Huntsville Municipal CoUrt to enter his plea to a speeding ticket. This failure to appear caused the Court to issue another charge against Mr. Harper. failure to appear. and made it necessary for the Coun to issue Mr. Harper a not.ice that he failed to appear; and. (ii) On April 13. 2000. he failed to appear before the HUl1tsVille Municipal Coun for trial on a speeding ticket. This failure to appear required the COUrt [0 issue another charge against Mr. Harper for F.Ulure to appear and caused. the Court to issue a bench warrant for Mr. Harper's arrest. WHEREFORE, it is the decision and order of the Arkansas Supreme Coun Committee on Professional Conduct that TERRY D. HARPER, Arkansas Bar #89080. be and hereby is CAUTIONED for his condua in this matter.

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GEORGE ROBERT WISE uttle Rock, Arkansas December 29, 2000 The formal charges of misconduct upon which this Order is premised arose from the Complaint of Shirley Overton Breedlove. George Robert Wise, an anorney prncticing primarily in Linle Rock. Pulaski CoUnty, Arkansas, first came imo contaCt with Mrs. Breedlove during November 1997 while he was an associate of Boswell Law Firm in Bryam. Arkansas. Mrs. Breedlove was contacted by Charles Hicks, another attorney in the firm, at th~ request ofJohn Lewis, an attorney practicing in Hot prings. Mrs. Breedlove had discussed a possible wrongful death lawsuit with Mr. Lewis, who had contacted Mr. Hicks on her behalf. Mr. Hicks assigned the maner to Mr. Wise. Shortly after the initial contaCt, Mr. Hicks opened his own law firm and Mr. Wise continued to work for Mr. Hicks. Mr. Wise continued to assist Mrs. Breedlove with her legal man~r until such time as he was able to determine that he was going to be unable to obtain the testimony of an expert to assist in verifying Mrs. Breedlove's claims concerning the cause of her husband's death. Mr. Wise advised Mrs. Breedlov~ of this fact during March 1999. Although Mr. Wise attempted to locate another anorney to assist Mrs. Breedlove with her legal maner. he was unable to do so and informed Mrs. Breedlove of this fact during May 1999. In the correspondence advising Mrs. BreedJove of this fact, Mr. Wise offered to return the contentS of her file to her. On June 19. 1999. Mrs. Breedlove Cllled Mr. Wise's office and advised that she did indeed wish to have the contents of her file returned 10 her. Despite Mrs. Breedlove's request, Mr. Wise did not return the file contentS

her. Ultimatdy, Mrs. Breedlove was able: I'D locate anomer anorney who was willing to assist legal maner. A5 a result on January her with 13, 2000, Mrs. BreedJove scm Mr. Wise a leucr

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by UPS Next Day Delivery and again reqUl~5[ed the return of her file. No one responded to Mrs. Breedlove's letter. When Mrs. BrecdJove first submirled her grieva.n~ form to Executive

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Director's offi~, she fo~rded a copy to Mr. Wise. Aher receipt of the copy of the grievance form, Mr. Wise responded to Mrs. Breedlove and explajned thal he was unable [0 locate the medical records file or

the plc2dings file in connection with Mrs. BreedJovc's legal mauer. As a result. Mr. Wise was unable to return the contents. With apologies and regrets. Mr. Wise admirted that he failed (0 return the file to Mrs. Breedlove. Mr. Wise also acknowledged that it was his responsibiJity to insure that the file was rerurnoo to Mrs. Breedlove. Mr. Wise explained to the Committee that he has made certain changes in his office to insure that this type of mistake does not occur again. Upon consideration of the formal complailH, the response herein, and the Arkansas Model Rules of Professional Condua. the Comminee on Professional Condua finds: I. That Mr. Wise's condua violated Modd Rule 1.16(d) when he failed to provide Mrs. Breedlove's file to her when he terminated his representation of Mrs. Breedlove. Model Rule I. 16(d) requires. in pertinent pan. upon termination of representation that a lawyer take steps to the extent reasonably necessary to protect a client's interesu such as surrendering papers and property to which t.he client is entitled. WH EREFORE, it is the decision and order of thc Arkansas Supreme Court Committcc on

Pwf",;onal Conduct mat GEORGE ROBERT WISE. Adan,as Bar ID #78171 be. and hereby is. CAUTIONED for his conduct in this matter.

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ParagouJd, Arkansas December 29, 2000 The formal charges of misconduct arose from the Arkansas Supreme Court case of Charks Ray Bolton v. Stn" ofArknnsat, CR 2000-881. Joseph Dewey Hughes. an anomey practicing in Paragould, Arkansas, initially represemed Mr. Bolton in an appeal to the Arkansas Supreme Court in the above-mentioned matter. Mr. Bolton was represented at trial by Mr. Hughes. Aher filing a olice of Appeal, Mr. Hughes was responsible for fiJing the record of the lower COUT( proceedings, absent an extension. within ninety (90) days of the entry of the Judgment and Commitment Order. No motion for extension of time to file lhe record was filed on


tit\\)III' Mr. Bolton's behalf. On July 28, 2000, Me. Hughes filed with the Arkansas Supreme Court a Motion for Rule on the Clerk requesting the Arkansas Supreme Coun allow the filing of the transcript and record beyond the ninery (90) day limit. In the Motion, Mr. Hughes admitted responsibility for rniling to obtain an Order cxrcnding the time for filing the uanscript and record. On September 7, 2000, the Arkansas Supreme Court issued a Per Curiam Opinion granting the Motion and forwarded a copy of the Pcr Curiam to the Arkansas Supreme Coun Committee on Professional Conduct. Upon receipt of the formal complaint, Mr. Hughes responded with a timely answer. In his answer Mr. Hughes admitted that he failed ro timely file the record of the lower coun proceedings with the Arkansas Supreme Coun and failed to timely request an extension of time fa file the record. Mr. Hughes expressed his regret at having made the error and asserted that he will take every possible precaution to ensure that this will not occur again. Upon consideration of the formal complaint, the response herein, and the Arkansas Model Rules of Professional Conduct, the Committee on Professional Conduct finds: I. That Mr. Hughes's conduct violated Model Rule 1.3, when he failed to timely undertake the necessary steps (Q obtain an Order extending the time to file the record on appeal beyond the initial ninety day (90) limir and when he failed (Q file in a timely manner with the Arkansas Supreme Coun the record of the lower court proceedings on behalf of Charles Ray Bolron. Model Rule 1.3 requires that a lawyer act with reasonable diligence and promptness III represeming a client. 2. That Mr. Hughes's conduct violated Model Rule 8.4(d), because his failure to file the record with the Arkansas Supreme Coun in a timely manner resulted in a delay in the orderly and timely resolution of appellate proceedings and because his failure co timely file his c1iem's record with the Arkansas Supreme Court required the Court to expend additional time and effon which would not have been necessary otherwise. Model Rule 8.4(d) requires that a lawyer not engage in conduct that is prejudicial ro the administration of justice. WHEREFORE, it is the decision and order of the Arkansas Supteme Court Committee on Professional Conduct [hat JOSEPH DE\'(ff.Y HUGHES, Arkansas Bar ID #97021, be, and hereby is, CAUTIONED, for his conduct in this matter.

lIisl'iplim\l') \l't inns

MICHAEL R. DAVIS Conwa.y, Arkansas December 15.2000 The formal charges of misconduct arose from the Arka.nsas Supreme Coun case of Billi Jo DodJon, CACR 97-1487. Michael R. Davis, an anorney formerly practicing law in Conway, Faulkner County, Arkansas, was employed to represent Billi Jo Dodson in a criminal case in which she was charged with being an Accomplice to Murder, Second Degree, and Permitting Child Abuse. Following trial, Ms. Dodson expressed to Mr. Davis that she wished to have her convictions appealed. On December 16, 1997, Mr. Davis sent Ms. Dodson a letter informing her that he had filed a Notice of Appeal on her behalf and included a copy of the Notice of Filing which provided the dates in which the brief and reply brief were to be filed with the COlirt. In the letter to Ms. Dodson, Mr. Davis stated that he was not hired to assist her in an appeal ro the Arkansas Supreme Court. Mr. Davis stated in his response that his contract with Ms. Dodson did not include any appeal unless she had paid her anorney's fees and additional appeals COSts. Ms. Dodson had nOt been able ro obtain the necessary funds for payment of the COStS of the rranscript of the trial court proceedings. Rule 16 of the Arkansas Rules of Appellate Procedure - Criminal requires thar trial counsel, whether retained or coun-appointed, shall continue [0 represent a convicted defendant throughour any appeal to the Arkansas Supreme Court unless permitted by the trial court or rhe Arkansas Supreme Court to withdraw in the interest of justice or for other sufficient cause. In his response to the Committee, Mr. Davis admitted that he was unaware that the attorney of record had rhe burden of paying for the trial transcript and record if the client did not, or could not, pay such COStS. A[ no point, however, was Mr. Davis relieved as counsel of record by any COUrt. Ms. Dodson's brief was due [Q bc filed on January 19, 1998. No brief was filed on Ms. Dodson's behalf. Mr. Davis admined that he did nor pursue the appeal on behalf of Ms. Dodson. Ms. Dodson filed a pro se Motion for Extension of Time for Filing Appeal, for Appoinrmcm of CounscJ, for Bail, for Use of Trial Transcript in Preparing Appeal, and to proceed /11 Forma Pauperis. The Court of Appeals issued a Per Curiam Order relieving Mr. Davis as attorney of record on March 3, 1998. Upon consideration of [he formal complaint, the response herein, and the Arkansas Model Rules of Professional Conduct, the Comminee on Professional Conduct finds: 1. That Mr. Davis's conduct violared Model Rule 1.1 when he failed to prepare and file a brief by the January 19, 1998, deadline set by the

Clerk of the Court and when he failed to comply with the duties imposed upon him under the Arkansas Rules of Appellate Procedure Criminal by failing to pursue an appeal on behalf of his client. Model RuJe 1.1 requires, in pertinent pan, thar a lawyer provide compc[ent representation to a c1iem, including the thoroughness and preparation reasonably necessary for the preparation. 2. That Mr. Davis's conduct violated Model Rule 1.3 when he failed to file a brief by the January 19, 1998, deadJine set by the Clerk of the Coun and when he failed (Q take any action in Ms. Dodson's appellate proceeding subsequent to receiving the briefing schedule. Model Rule 1.3 requires that a lawyer act with reasonable diligence and promptness III representing a client. 3. That Mr. Davis's conduct violated Model Rule 3.4(c) when he failed to file a brief by the January 19, 1998, deadline ser Out by the Clerk of me Court and when he failed to comply with the dmies imposed upon him under the Arkansas Rules of Appellate Procedure - Criminal, Rule 16, by failing ro pursue an appeal on behalf of his client. Model Rule 3.4(c) requires, in pertinent part, rhat a lawyer not knowingly disobey an obligation under the rules of a tribunal. 4. That Mr. Davis's conduct violated Model Rule 8.4(d) when he caused delay in the orderly and timely administration and resolution of appellate proceedings by failing ro file a brief on behalf of his diem or raking any other action on her behalf in her appellate proceedings and when his lack of action on behalf of his client, Billi Jo Dodson, c:tused the court ro expend additional time and effort in a criminal matter which would nor have been necessary otherwise. Model Rule8.4(d) requires that a lawyer nor engage in conduct thar is prejudicial to the administration of juslice. WHEREFORE, it is the decision and order of the Arkansas Supreme Court Committee on Professional Conduct that MICHAEL RAY DAVIS, Arkansas Bar 10 #87045. be, and hereby is, CAUTIONED for his conduct in this marrero

JOSEPH DEWEY HUGHES Paragould, Arkansas December 29, 2000 The formal charges of misconduct arose from the Arkansas Supreme Coun case of Chdr/~s Ray Bolton v. Stdte ofArkansas, CR 2000~881. Joseph Dewey Hughes, an a((omey practicing in Paragould, Arkansas, initially represented Mr. Bolton in an appeal to the Arkansas Supreme Coun in the above-mentioned marrero Mr. Bolron was represented at trial by Mr. Hughes. After filing a Notice of Appeal. Mr. Hughes was responsible for filing the record of

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til\\ )111' the lower COUrt proceedings, absent an extension, within ninety (90) days of the entry of the Judgment and Commitment Order. No motion for extension of time to file the record was filed on Mr. Bohon's behal[ On July 28, 2000, Mr. Hughes filed with the Arkansas Supreme Court a

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IIisl'ipliUill') \l't inns

Motion for Rule on the Clerk requesting the Arkansas Supreme Court allow the filing of the transcript and record beyond the ninety (90) day limit. In the Motion, Mr. Hughes admitted responsibility for failing to obtain an Order extending the time for filing the rranscript and

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Museum Center, Suite 10, 500 East Markham Street Little Rock, AR 72201 501-376-2121 1104 South Walton Blvd .. Suite 20, Bentonville, AR 72712 501-271-2237 423 Rogers Avenue, Suite 10 I, Fort Smith, AR 72902 501-783-1776

record. On September 7, 2000, the Arkansas Supreme Coun issued a Per Curiam Opinion grall[ing the Mmion and forwarded a copy of the Per Curi2m to the Arka.nS2S Supreme Coun Committee: on Profession21 Conduct. Upon receipt of the formal complaint, Mr. Hughes responded with a timely 2nswer. In his answer Mr. Hughes admirred thar he failed ro timely file the record of the lower court proceedings with the ArkanS2S Supreme Coun and failed to timely request an extension of time to file the record. Mr. Hughes expressed his regret at having made the error and assened that he will take every possible precaution 10 ensure that this will nOt occur again. Upon consideration of the formal complaint, the respons<: herein, and the Arkansas Model Rules of Professional Conduct, the Committee on Professional Conduct finds: I. That Mr. Hughes's conduct violated Model Rule 1.3, when he F.tiled to timely undertake the necessary Steps to obtain 2n Order extending the time to file the record on appeal beyond the initial ninety day (90) limit and when he F.tiled to file in a timely manner with the Arkansas Supreme Coun the record of the lower coun proceedings on behalf of Ch2rles Ray Bolton. Model Rule 1.3 requires th2t a 12wyer act with reasonable diligence and promptness in representing a client. 2. That Mr. Hughes's conduct violated Model RuJe 8A(d), because his failure to file me record with the Arkansas Supreme Court in a timely manner resulted in a delay in the orderly and timely resolution of appellate proceedings and because his failure to timely file his client's record with the Arkansas Supreme Court required me Coun to expend additional time and effon which would not h2ve betn necessary otherwis<:. Model Rule 8.4(d) requires that a lawyer not engage in conduct mat is prejudicial to the adminisrration of justice. WHEREFORE, it is the decision and order of me Arkansas Supreme Court Committee: on Professional Conducr char JOSEPH DEWEY HUGHES, Arkansas Bar ID #97021, be, and hereby is, CAUTIONED, for his conduct in this maner.

OTICE OF REPRIMAND DAVIS HENRY WFTIN Wen Memphis, Arkansas January 4, 2001 The formal charges of misconduct upon which this Order is premised arose from the Complaint of Clyde Johnson. Davis Henry Loftin, an anorney practicing in Wesl Memphis,


tiln ~lll' Arkansas, rcpresent~ Mr. Johnson in a criminal proettding. Mr. Loftin was the public defender assigned to Mr. johnson's case. On January 31, 1991, Mr. johnson was convicted of aggra.vated robbery in the Circuit Courr of Crinenden Couney. Following his conviction, Mr. johnson made Mr. loftin aware of his desire to appeal his conviction. As a result, on February 28, 1991, Mr. Loftin filed a mice of Appeal on Mr. johnson's behal( Mr. Loftin admitted mat he filed the otice of Appeal. Mr. Johnson believed from that poinr for several years that Mr. Lofrin was pursuing his appeal. He made several tdephone calls (0 Mr. Loftin's office but none of the mes52ges were returned. According to Mr. Loftin, Mr. johnson never called him nor came by the office to see him subsequem to his conviction. In addition, Mr. johnson received no correspondence from Mr. Loftin .after his conviction. During January 1997, Mr. Johnson wrote Sue ewbery, Criminal justice Coordinator of the Arkansas Supreme CoUrt, to inquire 2bom the starus of his appeal. When Mr. Johnson received Ms. Newbery's reply, he learned that Mr. Loftin had never pursued the appeal. At the time of execution of his affidavit before the Committee, Mr. Johnson had never received any reason from Mr. Loftin for his F.Ulure to pursue me .appeal. Mr. Loftin explained th.at he did nOt pursue the appeal because he believed that Mr. johnson did not want him to pursue one. Upon consideration of the formal complaint, the response herein, and the Arkansas Model Rules of Professional ConduCT, the Commiuee on Professional Conduct finds: I. That Mr. Loftin's conduct violated Model Rule I. I when he failed to pursue Mr. Johnson's appellate proceeding to him after he filed the NOlice of Appeal on Mr. Johnson's bchal( Model RuJe 1.1 requires, in pertinent part, that a lawyer provide competent represcnClDon to a c1iem including the thoroughness and preparation reasonably necessary for the representation. 2. That Mr. Loftin's conduct violated Model Rule 1.2(a) because one of the objectives of his representation of Mr. Johnson was to pursue an appeal of Mr. johnson's conviction for aggravated robbery, but he did not do so. Model Rule 1.2(.a) requires, in pertinent part, that a lawyer abide by a cliem's decisions concerning the objectives of representation. 3. Thai Mr. Loftin's conduct violated Model RuJe 1.3 when he did not lodge the record with me Supreme Coun Clerk for Mr. johnson's appeal after he filed the otice of Appeal on Mr. Johnson's behalf and when he took no action in furtherance of Mr. Johnson's appeal after filing the Notice of Appeal on February 28, 1991.

IIisdpIiRill'~

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Modd Rule 1.3 requires that a lawyer act with reason2ble diligence .and promptness in representing a client. 4. That Mr. Loftin's conduct violated Model Rule 1.4(a) when, despite Mr. johnson's numerous requests for information about an appeal on his behalf, Mr. Loftin never responded to him and when he did not 2dvi.se Mr. johnson mat he was nOt pursuing an appeal on Mr.

Johnson's behalf.

Model Rule 1.4(a) requ;res

that a lawyer keep a cliem reasonably informed about the status of a matter and promptly comply with reason.able requests for inform.ation. 5. Th.at Mr. Loftin's conduct violated Model Rule 3.4(c) when he failed to pursue Mr. Johnson's appeal despite being required to do so by Arkansas law since he was Mr. johnson's anomey of record and was never relieved from such representation. Model Rule 3.4(c) requires that a lawyer not knowingly disobey an obligation under the ruJes of a tribunal except for an open refusal based on an assertion that no valid oblig.nion existS. 6. That Mr. Loftin's conduct viol.atcd Model Rule 8.4(d) because Mr. Johnson believed for many years that his appeal was being pursued because Mr. loftin never advised him differently. Model RuJe 8A(d) requires that a lawyer not eng2ge in conduct th2t is prejudicial to the administration of justice. WHEREFORE, it is the decision and order of the Arkansas Supreme Coun Committee on ProFessional Conduct that DAVIS HENRY

LOFfIN,

Arkansas Bar ID #79196 be, and

hereby is, REPRIMANDED for his conduct in this maner.

M1LTON RAY BUNCH Rogers. Arkansas January 22, 2001 The formal charges of misconduct upon which this Order is premised arose from information brought to the anention of the Commincc on Professional Conduct. During rhe course of the divorce proceeding, which occurred in 1996, involving Milton Ray Bunch, an anomey practicing l.aw in Rogers, Arkansas, certain of Mr. Bunch's truSt account records were reviewed. In addition, other discovery was conducted. As part of the discovery, an il1lerview was taken of Mr. Bunch's former c1iem, Charles (Chuck) R. Howard. During the interview, Mr. How.ard revealed that Mr. Howard placed 511,000 in Mr. Bunch's trust accoum to be maintained until such time as a contract for purchase of a resClUr2Ilt w.as completed. From [he time the funds were placed in Mr. Bunch's truSt account lIntil the contract negotiations were complete approximately six (6) months elapsed. Mr. Bunch used a portion of Mr. Howard's funds

for his own ~ndit instead of maintaining them as intended. The :J.U[horiuuon to usc the funds was not prepared umil after Mr. Bunch had used the funds. Ultimately. Mr. Howard did agree 10 Mr. Bunch's usc of the funds. but Mr. Bunch did usc funds belonging to a diem without prior approval and authorization. A unified Public

Accoumam abo r~iewed Mr. Bunch's truSt accoun( records and was able to establish thai Mr. Bunch was using his trust accouni for personal maners and not maintaining it for diem funds as

required by the Arkansas Model Rules of Professional Conduce Fin:llly, while the investigation of his finances was being considered, Mr. Bunch admined that he did not maintain complete records of his ((USt account. Following Mr. Bunch's receipt of the formal complainr, the respondenr anomey and the Acting ExecUfive Direc(Or undenook discussions which have resuhed in an agreement to discipline by consenr pursuam (0 Section 8 ,Procedures of [he Arkansas Supreme Coun Regulating Professional Conduct of Anomeys at Law (Procedures). Upon consideration of the formal complaint, admissions herein, the terms of the proposed consent (0 discipline hereinafter stated, the Ahernale Committee on Professional Conduct's approval thereof, and the Arkansas Model Rules of Professional Conduct, [he Committee on Professional Conduct finds: I. That Mr. Bunch's conduct violated Model Rule 1.15(3) when he allowed his own funds to become comingled with those of his clients in his trust account; when he admitted during 2n investigation of his finances that he did nOt keep complete records of his trust account; and, when he failed to properly maintain huck Howard's funds in his trust account after the $11,000 deposit was made. Modd Rule 1.15(a) requires, in pertinent pan, that all lawyers hold properry of clients or third persons that is in a lawyer's possession in connection with .a represenCltion separate from the lawyer's own properry, with funds of a client being deposited and maintained in one or more identifiable trust accounts in the stare where the lawyer's office is situ2ted and further requires th.at complete records of such .aCCOUnt funds and other properry be kept by the lawyer and be preservo::l for .a period of five years after termination of representation. WHEREFORE, in accordance with the consent to discipline presented by Mr. Bunch and the Office of the Executive DireclOr, it is the decision and order of the Arkansas Supreme Coun Comminee on Professional Conduct that

MILTO RAY BU CH, fukansas Bar ID #79027. be, and hereby is. REPRIMANDED for his conduct in this matter.


tim )fll' IIisriplinill') \l't inns WILLIAM S. ROBINSON Little Rock, Arkansas January 9. 2001 The formal charges of misconduct upon which this Order is premised arose: from the Complaint of Chuck Mitchdl, Presidem of GTO, Inc. During late 1993 and early 1994, Mr. Mitchell's company sold certain products to Allied Fence of Arkansas, Inc. and/or Steve Ashmore, its owner. When the accoum became delinquent, Mr. Mitchell hired William S. Robinson, an anorney praaicing law primarily in Little Rock, Pulaski County, Arkansas, to collect the amount owed. Mr. Robinson was initially contacted by American Credit Indemnity on GTO's behalf. When Mr. Robinson recommended 1'0 American Credit's agents that a lawsuit be filed to collect the delinquency, Mr. Mitchell se:nt payment to Mr. Robinson in the amount of S1,475.00. Thereafter, on July 6, 1994, Mr. Robinson filed a complaint against Mr. Ashmore, individually. as Guarantor of and d/b/a Allied Fence. Mr. Ashmore's Answer to the complaint was filed on AuguSt 22, 1994. One of the defenses to the lawsuit, was an mercion that Mr. Ashmore was not liable on the debt but that his corporation, AJlied Fence of Arkansas, Inc.â&#x20AC;˘ was. Mr. Mitchell was made aware of the defense, however, Mr. Robinson never explained the seriousness of the defense to him or anyone else associated with GTO. At no time did Mr. Robinson advise of the possibility or necessity of joining Allied Fence of Arkansas, Inc. as a codefendant. During early March 1995, Mr. Mitchell discussed the pending litigation with Mr. Robinson at length and then followed up with a lener to Mr. Robinson. Mr. Mitchell did not hear anything from Mr. Robinson for the next two (2) months so he had GTO's general counsel, John C. Cooper, conraa Mr. Robinson. Thereafter, Mr. Cooper confirmed the conversation in a lener. Although Mr. Robinson had Mr. Mitchell's permission to discuss the maner with Mr. Cooper, Mr. Robinson did not respond to Mr. Cooper's lener. Mr. Cooper followed his letter of May 25, 1995, to Mr. Robinson with another one dated June IS, 1995. Prior to the letter of June t 5, 1995, Mr. Ashmore filed a voluntary petition for bankruptcy. The bankruptcy petition was filed on June 2, 1995, but Mr. Robinson did nO( inform Mr, Mitchell nor Mr. Cooper of this faa. GTO was listed as a creditOr in the bankruprcy but all notices were sent to Mr. Robinson's law firm. Thereafter, on August 3. 1995, notice was filed in the pending litigation between GTO and Mr. Ashmore confirming that Mr. Ashmore had filed bankruprcy. Mr. Mitchell was not timely advised of this faCt by Mr. Robinson either. It was nOt until September 1995 rhat Mr. Mitchell and Mr.

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Cooper learned of the bankruptcy proceeding. By that time, the meeting of creditOrs had already taken place and GTO's time for contesting Mr. Ashmore's discharge had passed. On the same dare that the discharge order was signed, Mr. Cooper sent Mr. Robinson a lener te.rminating his representation of GTO. In a follow¡up conversation, Mr. Robinson advised Mr. Cooper that he would notify his professional liability carrier of GTO's claim. However. the carrier never contacted Mr. Cooper and Mr. Robinson never provided the address and telephone number of the carrier. Mr. Robinson was served with the formal complaint by certified, restricted delivery mail, pursuant to Section 5E. Procedures of the Arkansas Supreme Coun Regulating Professional Condua of Attorneys at Law (Procedures) on ptember 21, 2000. Mr. Robinson failed to respond to the formal complaint. His failure to respond timely to the formal complaint constitutes admission of the rnctual allegations contained therein pursuant to Section 51(4) of the Procedures of the Arkansas Supreme Coun Regulating Professional Conduct of Attorneys ar

Law. Upon consideration of the formal complail1t and the Arkansas Model Rules of Professional Conduct, the Comminee on Professional Conduct finds: I. That Mr. Robinson's conduct violated Model Rule 1.3 when he failed to take action on behalf of his client, GTO, after Mr. Ashmore filed for bankruptcy and when he did not timely notify Mr. Mitchell or anyone else associatcd with GTO that Mr. Ashmore had filed for bankruptcy relicf. Model Rule 1.3 requires that a lawyer act with reasonable diligence and promptness in representing a client. 2. That Mr. Robinson's conduct violated Model Rule 1.4(01) when he failed to keep Mr. Mitchell informed about the starus of the lawsuit against Mr. Ashmore as it progressed; when he failed to respond to the requests for information made by Mr. Mitchell and those made on Mr. Mitchell's behalf by John Cooper concerning the lawsuit filed against Mr. Ashmore; when he failed to inform GTO when Mr. Ashmore filed for bankruptcy; when he failed to advise GTO of the date set for the meeting of creditors in Mr. Ashmore's bankruptcy proceeding; and, when he did not provide GTO with the information concerning the deadline for objecting to Mr. Ashmore's discharge in the bankruptcy maner. Model Rule 1.4(a) requires that a lawyer keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information. 3. That Mr. Robinson's conduct violared Model Rule 8.4(d) since his failure to notify

GTO of the bankruptcy proceeding filed by Mr. Ashmore prohibited GTO from pursuing any remedies which might have been available prior to the expiration of the Bankruptcy Coun deadlines. Model Rule 8A(d) requires that a lawyer not engage in condua that is prejudicial to the adminiStration of justice. WHEREFORE, it is the decision and order of the Arkansas Supreme Coun Comm.intt on Professional Conduct that WILLIAM S. ROBIN ON, Arkan"" Bar ID #761081><:, and hereby is, REPRIMANDED for his conduCf in this matter.

JERRY WAYNE STEWART Benton, Arkansas December 21, 2000 The formal charges of misconduct upon which this Order is premised arose from the complaint of Anna Jeanene Sellers. Jerry Wayne Stewart, an anorney practicing primarily in Benton, Saline County, Arkansas, was employed by Ms. Sellers to represent her in a personal injury matter in 1995. Shortly after employing Mr. Stewart to represent her in a pcrsonal injury matter, Ms. Sellers purchased a vehicle from Mr. Stewart for $2800.00. Mr. Srewan explained mar he had entered into a business venture with a used car dealer wherein Mr. Stewart would loan money to purchase vehicles to be sold by the used car dealer. Upon sale of the vehicles, Mr. Stewart would receive the money expended to purchase the vehicle plus a $100.00 commission. According to Mr. Stewart, Ms. Sellers' purchase of a vehicle arose after she asked for assistance in locating a replacement vehicle following her accident. Mter Ms. Sellers purchased her vehicle, she called the used car dealer and Mr. Stewan requesting the title to the vehicle. Mr. Stewart informed Ms. Sellers that titles to vehicles he owned had been stolen from his office, including the title to the vehicle Ms. Sellers purchased. Mr. Stewart believed that the used car dealer removed the file from Mr. Stewart's office. He, thereafter, filed suit against the used car dealer and obtained a judgment. On July 10, 1995, Ms. Sellers discovered that the car she purchased from Mr. Stewart had been stolen from her residence. Ms. lIers reponed the vehicle srolen with the Mayflower, Arkansas Police Department. On July 25, 1995. the vehicle was found on a used car lot in Conway. Arkansas. According to the used car dealer, the vehicle had been stolen from him and resold to Ms. Sellers. Mr. Stewart averred that he advised Ms. Sellers to conmct the prosecming attorney. He, fureher, asserted that he offered Ms. Sellers his assistance in recovering the vehicle from (he used


car dealer. However, Ms. Sellers opted to file suit against Mr. Stewart and others as a result of the entire set of circumstances. Mr. Stewart admitted that a lawsuit was fiJed against him by Ms. Sellers and that he filed a response thereto. After several months, a hearing was scheduled in the legal marrer being pursued by Ms. Sellers. The Court records indicated that Mr. Stewart was notified that a hearing was to be held on June 9,1998 bur failed to appear. According to Mr. Stewart he did not receive notice of the hearing. Following the hearing, a judgment was entered against Mr. Stewart in the amount of $3800.00 on November 2, 1998. The trial court made as part of the judgment a finding thai Mr. Stewart had cornmirred fraud when he sold a vehicle which was nOt his to a client during the course of representation of that client. A5 of the date of Ms. Sellers' affidavit, the judgment remained unpaid. Mr. Stewan asserted that he did not ever receive notice of the judgment prior to the formaJ complaim herein. Upon consideration of the formal complaint, the response herein, and Ihe Arkansas Model Rules of Professional Conduct, the Committee on ProfessionaJ Conduct finds: I. That Mr. Stewart's conduct violated Model Rule 1.8(a) when he was found to have sold a vehicle which was nOt his own to a c1iem during the course of represeming that client in a personal injury maner. Model t .8(a) requires, in pertinent pan, that a lawyer not enter into a business transaction with a client. 2. That Mr. Stewart's conduct violated Model Rule 8.4(c) since he was found by the Faulkner County Circuit Court to have com mined fraud when he sold a vehicle which was nOt his to client during the course of representing the client in a personal injury matter. Model Rule 8.4(c) requires thai a lawyer not engage in conduct involving dishonesty, fraud, deceit or misrepresentation. WH EREFORE, it is the decision and order of the Arkansas Supreme Coun Comminee on Professional Conduct that JERRY STEWART, Arkansas Bar lD #75125, be, and hereby is, REPRIMANDED, for his conduct in this maner.

KENNETH GERALD BRECKENRIDGE Hot Springs, Arkansas January 18, 2001 The formal complaint of misconduct arose from the complaint of Ella Dautanas. Ms. Daurartas employed Kenneth G. Breckenridge, an attorney practicing law primarily in Hot Springs, Arkansas, for the purpose of resolving a property line dispute. Ms. Dautarras wenr to Mr. Breckenridge for legal advice and, on June 10,

1998, Mr. Breckenridge assured Ms. Daurarras thar he would get the Garland County Surveyor to determine where the property line was located. Mr. Breckenridge informed Ms. Dautartas that his fee for assisting her would be $1,000.00. There was no written fee agreement. Ms. Dalltartas paid Mr. Breckenridge $500.00 that day. Mr. Breckenridge arrived at Ms. Daurartas' home on June 17, 1998, looked at the property, and then requested the additional $500.00. Ms. Dautanas indicated that she would have to pay the remainder later. Ms. Dalltarras paid the remaining $500.00 on June 23, 1998. Ms. Dautarras made repeated calls to Mr. Breckenridge's office to check on the Status of the matter, left messages and received no return telephone calls. A5 nothing had occurred by November 1998, Ms. Dautanas and her son went (Q Mr. Breckenridge's office and, during a meeting with Mr. Breckenridge, requested a return of documents in Mr. Breckenridge's possession and the $1,000.00 fee. Mr. Breckenridge apologized for the lack of action on her matter and stated that work would commence soon. According to Ms. Dautarras nothing further was done. In June 1999, Ms. Dauranas sent Mr. Breckenridge a letter by registered mail demanding a rerurn of the fee paid for services not rendered. An employee of Mr. Breckenridge signed for the letter. Ms. Dauranas scated that no response was received from Mr. Breckenridge. Ms. Dauranas went to another anorney in Hot Springs seeking help with Mr. Breckenridge. Mr. Breckenridge informed the attorney that he would send a statement to Ms. Datlt3rtas with the money he owed her. No statement or rerum of money was received by Ms. Dauranas. Ms. Daurartas filed suit against Mr. Breckenridge and obtained a default judgment against him. Ms. Daurarras reponed that Mr. Breckenridge satisfied the judgment. Mr. Breckenridge was served with a copy of the formal complaint on September 21, 2000 by certified mail, restricted delivery. A letter enclosed in the certified mail advised Mr. Breckenridge that he had rwenry (20) days from the date of receipt of the mailing (Q file a response (Q the formaJ complaint. No timely response was received within rhe twenty day period for which to file a response. On Ocrober 30, 2000, Mr. Breckenridge provided an umimely response to the formal complaim. Upon consideration of the formal complaint, the umimely response, and the Arkansas Model Rules of ProfessionaJ Conducl, the Comminee on Professional Conduct finds: I. Thar Mr. Breckenridgc's conduct violatcd Model Rule 1.3 when, following paymem for services by Ms. Dautarras, he failed t'O take any

steps toward concluding the work for which he had been hired. Model Rule 1.3 requires that a lawyer act wit'h reasonable diligence and promptness in represeming a diem. 2. That Mr. Breckenridge's conduct violated Model Rule 1.4(01) when, following payment for services for which he was employed, he failed to rerum telephone calls t'O Ms. Daurartas; failed to provide Ms. Damarras with information about steps he had taken regarding Ms. Dautanas' matter; failed to respond 10 a June 1999 letter wherein Ms. Dautartas requested information about her legaJ matter; and failed t'O provide a statement and check after having informed Ms. Daurarras and her son that he would do so. Model Rule 1A(a) requires that a lawyer keep a client reasonably informed about the starus of a marter and promptly comply with reasonable requests for information. 3. That Mr. Breckcnridgc's conduct violarcd Model Rule 1.5(b) when, not having regularly represented Ms. Daurarras, he failed to provide Ms. Dautarras with a basis or rale of the fee within a reasonable time after June 10, 1998, the date of hire. Model Rule lo5(b) requires that when a lawyer has not regularly represented the diem, the basis or rate of the fce be communicated to the client, preferably III writing, before or within a reasonable time after commencing representation. 4. That Mr. Breckenridge's conduct violated Model Rule 1.I6(d) when, upon receipt of the June 1999, letter from Ms. Dautarras requesting that he rerurn the advance payment of fees, he failed to do so. Model Rule 1.16(d) requires that upon termination of representation, a lawyer take steps to rhe extent reasonably practicable to protect a client's interem, such as refunding any advance payment of fee that has not been earned. 5. Thar Mr. Breckenridge's conduct violated Model Rule 8.4 (c) when he assured Ms. Dautartas thai he would assist her in resolving the property line dispute and took no action toward assisting her in the maner and when he informed the :morney assisting Ms. Dautartas that he would send a Statement of services provided along with a refund of money and then failed to do so. Model Rule 8.4(c) requires that a lawyer not engage in conduct involving dishonesty, fraud, deceit or misrepresentation. 6. That Mr. Breckenridge's conduct violated Model Rule 8A(d) when he caused unnecessary delay to Ms. Dautarras' legaJ matter with his lack of action following commencement of representalion. Model Rule 8.4(d) requires that a lawyer not engage in conduct that is prejudicial to the <ldministration of justice. WHEREFORE, it is the decision and order of the Arkansas Supreme Coun Comminee on Professional Conduct that KENNETH

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til\\ ~1'1' llisriplimll'~\1't ions GERALD BRECKENRIDGE, Arkansas Bar ID #84015, be, and hereby is, REPRIMANDED for his conduct in this matter. For his failure co timely respond to the formal complaint, Mr. Breckenridge is fined the sum of $500.00.

pursuant co Section 51(1) and 8A(2) of the Procedures of the Arkansas Supreme Coun Regulating Professional Conduct of Attorneys at Law. Said fine to be paid within thirty (30) days of the filing of this Order with the Arkansas

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NOTICE OF SUSPENSION WILLIAM JEFFERSON CLINTON State of New York January 19,2001 Anorney William Jefferson Clinton, an anorney residing in the State of New York, Bar ID #730 I9 has been suspended from the pracrice of law within the jurisdiction of this State for violation of Model Rule 8.4(d) of the Arkansas Model Rules of Professional Conduct. The Agreed Order of Discipline filed of record with the Pulaski County Circuit Coun reflecrs that Mr. Clinton admined to giving knowingly evasive and misleading discovery responses concerning his relationship with Monica Lewinsky, in violation of Judge Susan Weber Wright'S discovery orders in the case of Jones v. Clinton, No. LR-C-94-290 (ED. Ark.) The Agreed Order of Discipline also reRects that William Jefferson Clinton's Arkansas Anomey's License has been suspended for a period of five (5) years effective January 19. 2001. Please be advised that a suspended anomey shall not be reinstated co the practice of law in this State until the Arkansas Supreme Coun has received an affirmative vote by a majority of the Comminee. If, and at such time as the Committee may reinstate the anorney, you will be provided notice of the reinstatement and the effective date thereo( WILLIAM W. WATT Little Rock, Arkansas January 2, 200 I The formal charges of misconduct lIpon which this Order is based arose from information thal came to the attention of the Committee. William W. Wan is an anorney primarily practicing in Little Rock. Pulaski County, Arkansas. Berween March 27 and 29.1996, Mr. Wan, under a grant of immunity, testified as a witness at the trial of the U"itrd Slam ofAmrrica Vi. James B. McDougal, Jim Guy Tuclur and Susan McDougal, in the United States District Coun

for the Eastern District of Arkansas, Western Division, Case No. LR-CR-95-173 . In March. 1986, Mr. Wan was elected Linle Rock MunicipaJ Judge. Mr. Wan funneled contributions through his secretary and her daughter, Mary Ann Young and Ellisa Young, to a political campaign. M r. Wan does nor deny that he forwarded money through his secretary and her daughrer to be contributed to a political campaign. He believed that if the ultimate donor was identified, regardless of the source of rhe funds, that the statute was satisfied. He makes


tim )111' IIisl'iplimll') .\I't inns this averment to the: Committee despire the faCt that Arkansas Code Anno[2tcd Section 7-6205(b) and Secrion 7-6-103 prohibirs judges from making such contributions and at the time the contributions were made Mr. Wan was a municipal judge. In ovember, 1986, Mr. Wan creared a false document purporting to be a lener from David Hale of eM absolving Mr. Wan of liahiliry on the SBA nOle. At some point thereafter, a dispm.c arose between Mr. Wan and Mr. Hale as to how and 10 whom the notc was (0 be repaid. Mr. Wan presented the Icm:r (0 Mr. Hale in an effort (0 imimidat(' Mr. Hale. On AuguSt 17. 1995, Mr. Wan. in an interview with the Office of Independent Counsd (010, maintained the forged letter was authentic. Ultimately he recanted that Statement [Q the ole investigators. Mr. Watt acknowledged thai he created the false document, albeit in a fit of anger. Mr. Watt stated that he created the document and presented it to Mr. Hale to exhibit the atent of Mr. Hale's unethical and ilJq;al conduct. Mr. Wan acknowledges that he initially stated the document was authentic in his discussions with the Ole. However, once Mr. Wan became aware of the gravity of the situation, he did in faCt recant the previous statement concerning the authenticity of the document. The Commina: was also made aware of the faCt that Mr. Wan resigned his municipal coun judgeship as a result of the conduct set out herein above. Upon consideration of the formal complaint, the res-pon.st: herein. the testimony at the de novo hearing, and the Arkansas Model Rules of Ptofessional Conduct Model Rules"), the Committee on Professional Conduct finds: I. That Mr. \'Van's conducr violated Model Rule 8.4(c) when, in 1986, he caused twO $1,000 contributions to be made to a polilicaJ campaign in the names of Mary Ann Young and Ellisa Young, his secretary and her daughter, when the funds were actually derived from Mr. Wan; when he created a false document which indicated that David Hale was financially responsible for a S I0,000 SBA loan and used the document in an effon to intimidate Mr. Hale to pay the loan; and, when, during an August 17, 1995, inrervi~ with the Office of Independent Counsel, Mr. \'Van fa.lsely informed the OIC Ihal the November 1986, St:HemCIlI of David Hale was a genuine document. Model RuJe 8.4(c) requires that a lawyer not engage in conduct involving dishonesty, fraud, deceit or misrepresentation. WHEREFORE, it is the decision and order of the Arkansas Supreme Coun Comminee on Professional Conduct that WILLIAM W. \'(fATI: Arkansas Bar 10 #78159, be, and hereby is, SUSPENDED for THIRTY DAYS and fined

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S 1,000.00 for his conduct in this matter. The fine is imposed pursualll to Section 8A(2) of the Procedures of the Arka.nsas Supreme Coun Regulating Professional Conduct of Attorneys al L'lw. The suspension shall become effective as of January I, 2001 and the fine shall be due and payable no later than December 17, 2000. HARLAN A. WEBER December 29. 2000 The formal charges of misconduct upon which this Order is based arose from the guilty plea of Harlan A. Weber. On January 15, 1998, a Judgment and Commitment Order was entered in the United States District CoUrt for the Eastern District of Arkansas. It found that Harlan A. Weber pled guilty to the misdemeanor violation of 18 U.s.e. 205 which regulatcs the activities of officers and employees in claims against and other maners affecting the Government. Mr. Weber was semenced to three years probation, a 53.000 fine and 480 hours of community service. According to the presenrence report. Mr. Weber was an administrative law judge with the Social Security Administration. A complaint was filed against Mr. Weber by the Office of the Inspector General alleging improprieties on the pan of Mr. Weber in regard to the processing of a social security administration appeal, namely Naney J. Weber, wife of Mr. Weber. Mrs. Weber applied for social security benefits on July 25, 1995 due to health problems that caused her 10 leave her employment in 1992. Mrs. Weber's social security claim was denied. on October 25, 1995. On Oaober 30, 1995 Mr. Weber, writing as Mrs. Weber. requested reconsideration of the denial. On the medical records submined Mr. Weber wrote "Pay anemion to grid rules. Pay attention to decision. NW." That reqUe51 was denied on February 12, 1996. Subsequently, Mr. Weber, again writing as Mrs. Weber, submined a request for a hearing to the Offi~ of Hearings and Appeals in Little Rock, the same office where Mr. Weber works. The case was assigned to Scon Dobbs, Senior Staff Attorney Advisor. A discussion was held between the fWO as to which physician Mrs. Weber was to see. For his response Mr. Weber admined to writing on the medical records and making the requests (or reconsideration and setting the maner for hearing. Mr. Weber admitted 10 discussing the .st:lection of a physician with Mr. Dobbs. Ultimately, Mrs. Weber was represented by legal counsel and had a hearing before an Adminisrralive Law Judge from the Dallas Regional Office, lotally unknown 10 Mr. Weber. She was grallled benefits pardy due ro Ihe grid rules referred to by Mr. Weber originally.

Upon consideration the formal complaint, the anorney's failure to respond, and the Arkansas Modd Rules on Professional Conduct herein, the Committee on Professional Conduct finds: I. That Mr. Weber's conduCl violated Model Rule 8.4(b), when in its Judgment and Commitment of January 15, 1998, the United States District Coun for the Eastern District of Arkansas found that Mr. Weber had pled guilty to a misdemeanor violalion of 18 U.s.e. 205, regulating activilies of officers and employecs in claims against and other matters affecting the Government. 2. That Mr. Weber's conduct violated Model Rule 8.4(d) when as an Administrative Law Judge for the Social Security Administration he assisted Mrs. Nancy J. Weber, his wife. with her claim with the Social Security Administration by requesting reconsideralion and hearings in her name when in fact il was him making the requests. Mr. Weber advised. the Social Security Administr:nion on the applicable law on his wife's behal( Mr. Weber had a discussion with a Social Securiry Administration anorney as 10 what physician his wife should see. All these actions were aga.inst federal law and required that an Administrative Law Judge from Dallas, Texas hear the case. WHEREFORE, it is the decision and order of the Arkansas Supreme Coun Commincc on Professional Conducr that HARLAN A. WEBER, Arkansas Bar ID #69081, be, and hereby ;s, SUSPENDED for THREE MONTHS for his conduct in this matter. The suspension shall become effective as of the date of the llIing of this Order with the Clerk of the Arkansas Supreme Court.

OTICE OF DISBARMENT PATRICIA DIANNE JACOBS Washington, D.C. January 18.2001 Patricia Dianne Jacobs, an anorney residing in Washington, D.C., with Arkansas Bar 10 #73152 has been barred from engaging in the practice of law in this St2te. On the Petition of the Arkansas Supreme Coun Committee on Professional Conduct, the Arkansas Supreme COUrt granted Ihe Petition and reciprocally disbarred Ms. Jacobs on January 18. 200 I. The Committee's Petition to Reciprocally Disbar Ms. Jacobs was based upon her previous disbarment by the District of Columbia Coun of Appeals and the Supreme Coun of (he United Stales. The Petition and attached exhibits on file with the Clerk of the Arkansas Sllpreme Coun demonsnale that the District of Columbia Coun

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JudIcIal ~., Continued from Page 51 cominued to August 2 7, 1998 even though Judge Fergus was available to hear the case and the arresting officer had been subpoenaed Stevenson failed to appear for

court on August 27, 1998 and Judge Fergus ser a $ 750. 00 cash bond. On September I, 1998, Judge Ross set aside Judge Fergus cash bond and cominued the case ro October 22, 1998 for trial. On October 22, 1998, the case was continued to December 24, 1998 a conflict court date. As of December 9, 1998, Stevenson had nOt been ro trial.

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II The Arkansas Supreme Court cordially invites the Arkansas Bar to attend the Dedication Ceremony for the Justice Building West Wing Friday, April 27, 200 I 625 Marshall / Justice Building Little Rock, Arkansas at 3:00 in the afternoon Reception Immediately following at the Arkansas Bar Center Hosted by Arkansas Bar Association Tours of West Wing Conducted 1:00 - 2:30 & 4:00 - 5:00 P.M. Day of Dedication Inclement Weather Location: State Capitol Rotunda

II


III Judge Royce Stewart Weisenberg.. Judge: Royce Stewart Weisenberger (retired) died on November 14, 2000 in Hope at age 92. He was born in Harper County, Iowa, graduated from Hope High School in 1924 and was a graduate of the University of Arkansas. Judge Weisenberger anended the University of Arkansas Law School and practiced law in Hope. He

represented Hempstead County in

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Arkansas Legislature and later was Hempstead County Deputy Prosecuring A[[orney for [he Eighm Judicial Disrricr. For more than 20 years, he presided as Chancery and Probate Judge of ten counties in Southwest Arkansas. "He was a lawyer's lawyer," according to Judge Jim Gumer of [he Eigh[h Judicial District. "He knew the law. He was a longserving judge char I consider a mentor and a friend," Judge Gumer concluded in an The imerview with the Hope Star. Hempstead Counry Courthouse annex was officially named In honor of Judge Weisenberger. The Judge served on [he Probate Law Committee of the Arkansas Bar Association for many years, as well as the Lawyers Helping Lawyers Comminee and many others over 40 years as a Bar Association volunteer. Judge Weisenberger was a proud veteran of World War II who served under General Patron in the 6th Armored Division. Judge Weisenberger's first wife, Dorothy, preceded him in death. He is survived by his Hopson Luebkman wife, Imogene Weisenberger and his children, Frances Reed (Charles), Royce S. Weisenberger, Jr. (Gloria), Alber< G. Weisenberger (Giles), a sister and six great grandchildren. Richard Frank Quiggle Richard Frank Quiggle, 58, of Li[rIe Rock passed away on January 7, 2001 in Tulsa, Oklahoma where he was visiting his family. He received his bachelor's degree from the University of Tulsa, and his law degree from the Universiry of Arkansas at Li[rIe Rock School ofL1w. Mr. Quiggle was an attorney in Little Rock, specializing in employment discrimination and civil rights.

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He also taught classes in employment discrimination at the UALR School of Law. He was active in legal organizations. including the Arkansas Bar Association, Arkansas Trial Lawyers Association, American Civil Liberties Union and National Employment Lawyers Association. His friend, Morgan E. "Chip" Welch, called Mr. Quiggle "a lawyer I loved and admired for his courage and for his love of the Constitution. We did civil rights cases together, but Richard was the true believer in every case. He was liberal when liberal wasn't cool." Mr. Quiggle is survived by his wife of 30 years, Anne Quiggle; and son, Anmony Quiggle of Li[de Rock; his mother, Mrs. Jack Quiggle; brother, Gary (Carolyn) of Tulsa; and sister, Julie (Pa[) Carson of Broken Arrow, Oklahoma, and in-laws.

Herrn Arch Northcutt Herrn Arch Northcutt passed away on January 30, 200 I. He was born in Salem (Fulron COli my), Arkansas, mended Arkansas College in Batesville, and graduated from Samford University's Cumberland Law School in Lebanon, Tennessee. He entered private practice with his father. Horace Northcutt, at age 19. He later served as legal counsel for the Arkansas Department of Revenue and Chief Anorney for the Arkansas Employment Securiry Division. He is survived by his wife, Anne; four sons, Herrn Jr. (Margie), John, Arch and Steve; grandchildren and a sister. He was preceded in deam by his parenrs and bromer. Bernard P. Wberstone Bernard P. Whetstone passed away on February 22, 200 I a[ age 88. He was believed to be the youngest lawyer in Arkansas when he was admitted to practice in 1934. He was believed ro be [he oldes[ lawyer practicing in Arkansas when he retired in 1998, according to his son Bud, with whom he practiced law in Little Rock. He was a member of the Arkansas Bar Associadon for more than 30 years continuously and a charter member of the Bar Association's Sustaining Members. He

was a Fellow and a Sustaining Fellow of the Arkansas Bar Foundarion. In 1984, he received the Humanitarian Award presented by the Arkansas Bar Association and the Arkansas Bar Foundation. He won the Association of Trial Lawyers' Amicus Award in 1990. In 1980, he recovered me larges[ jury verdict ever obtained for a single personal injury case in the history of Arkansas, $3.8 million. He established [he Bernard Whe[Srone Legal Enhancement Fund at the Universiry of Arkansas School of Law and UALR School of Law. He also established an endowment through the Lions Club, of which he was a member for more than 40 years. He was a founder and charter member of Sr. James Me[hodist Church in Pleasan[ Valley (Li[rIe Rock). A[ Firs< United Memodist Church in EI Dorado he [aught Men's Bible Class for 25 years and chaired the Evangelism Committee and Greeters Committee. He is survived by his wife, Carolyn and five children: B.K. Smith of Houston, Texas; Becky Gonzalez of San Anronio, Texas; Bud of Little Rock; Martha Whetstone Zanobini, who practices law in Oakland, CaJifornia; and Ruth Whetstone Wagner, a lawyer in private practice in Tampa, Florida. He also leaves grandchildren and great grandchildren to mourn his passing. Ricbard W. Hobbs Richard W. Hobbs, 88, died Thursday, March IS, 200 I. He graduated from Arkansas Law School and was admitted to the Bar in Arkansas in 1942. He was a member of the Bar Association for more than 30 years conseclitiveJy serving on the


Legal Aid, Audiring, Annual Meering, Public Information, Youth Education, Veterans and History of the Bar Association Comminees. He was a Fellow of the Arkansas Bar Foundation. He was a decorated veteran of World War II. Upon his return, he joined the law firm of William G. Bouie, later served as Deputy Prosecuting Attorney and Chief Deputy Prosecuting Attorney. special Chancellor

and special Circuit Judge.

He was a Past

Presidenc of the Garland County Bar Association, a member of the American Trial Lawyers Association, American Society of Law and Medicine and U.S. Supreme Court

HiscoricaJ Society. He was a Senior Warden at Sr. Luke's Episcopal Church and later at St. Chrysostom's Anglican Church. He was

also a Chancellor of the Diocese of the Southwest in the Anglican Church of America. He is survived by his wife, Louise Hobbs; and (wo nieces.

Linle Rock Catholic High School, mended Hendrix College and the University of Arkansas. He graduated from the University of Arkansas School of Law and earned a Masters of Tax designation from Southern Methodist University in Texas. Lee was associated with McEmire and Associates in Oklahoma City. Oklahoma and later with the Girior Law Firm in Litde Rock. He served on {wo committees of the Arkansas Bar Association during his career. He and his business parmer own and operate Powerhouse Gym. He was on the Board of Directors of Ballet Oklahoma and Ballet Arkansas and was a member of Highland Valley Unired Merhodisr Church. Lee was predeceased by his father, Bill Grace. He is survived by his mother, Patsy; his wife, Samantha; sons, William Lee Grace JJI and Thomas Clay Grace; srep daughters, Sydney Perkins and Lauren Elizabeth Perkins; his brother Ted Grace; nieces, nephews, his grandmother, Mabel Ellis; aums, an uncle and cousins.

William B. "Bill" Mosley William B. "Bill" Mosley died January 7, 2001 in Fon Smith, Arkansas. He graduated from Fort Smith High School in 1937, Forr Smirh Junior College in 1939 and the University of Arkansas Law School in 1949. He was rhe founder of Mosley Abstract Company in 1953, a member of the Arkansas Bar Association, the Democratic Parry, the Universiry of Arkansas Alumni Association, and Goddard Unired Merhodisr Church. He was a World War II naval aviator and past member of the Sebastian Counry Selective Service Board, a 32nd Degree Mason, and past presidem of Arkoma Land Tide Association. He is survived by his wife, Sue; three daughters, Nancy Bearden Tillery of Texas, Sally Bondi of Georgia, and Carhy Uohn) of Arkansas; sisters, grandchildren, and great grandchildren. He was preceded in death by his parems, Ben and Bess Mosley, two brothers and a grandson.

William Lee Grace, Jr. William Lee Grace, Jr. passed away on December 30, 2000. He graduated from

â&#x20AC;˘~.â&#x20AC;˘. ;-. ,

,

on the Labor-Management Relations and Tax, Trusts and Estates Committees for several years. He was a member of the American Bar Association, Special Justice of the Arkansas Supreme Court, a guest lecturer at Arkansas Law School, Past President of the Pulaski County Bar Association and a member of the Arkansas Society of CPAs. He was an infantry officer in World War II with combat duty in central Europe during the assault on the Siegfried Line in rhe Bartle of rhe Bulge and in the final advance into Germany. He was awarded the Silver Star, Bronze Star with Oak Leaf Cluster for Valor, Purple Heart, European Theatre Ribbon with three Campaign Stars, American Theatre Ribbon, Combat Infantry Badge, Victory Medal and Presidemial Unic Citation. Mr. Miller was a deacon and Sunday School teacher at Pulaski Heights Baptist Church, Past President of Little Rock Rorary Club, Pasr President of Arkansas Association of the Amateur Athletic Union and Pasr President of rhe Little Rock Boys Club. He is survived by his wifc, Imogene; {wo sons in the legal profession, Gary Miller and Alan Miller of Texas; grandchildren, a sisccr, nieces, nephcws and other extended family.

.

William S. Miller, Jr.

The Arkamas Bar Foundation acknowledges with grateful appreciation the receipt ofmemorial gifts and scholarship cOlJtrib"rionJ givm jn memory of the following individuals from December 20, 2000 rhrough March 20,20010 IN MEMORY OF RAYFITA

William S. Miller, Jr. passed away on December 18, 2000. In his youth, he received the nickname "Lefry" due to his prowess on the baseball field and it stayed with him for the rest of his life. He graduared from Walnut Ridge High School, in 1937, from Mississippi State University in 1943, and Arkansas L,W School in 1949. He was a parmer in Eichenbaum, Scort, Miller, Liles & Heister law firm, where he was a prominent tax and business attorney for more than 50 years; an Arkansas Bar Foundation Fellow; a mcmber of thc Arkansas Bar Association for 30 years cominuously during which time he served

F. GARDNER

Judith Gray IN MEMORY OF CLAUDE BROOKS HAMILTON

Judith Gray Hoyte and Ann Pyle IN MEMORY OF P.H. HARnlN

Donald L. Parker, II, PA. IN MEMORY OF JIM KING. JR. Hyden, Miron & Foster, PLLC IN MEMORY OF GRIFFIN SMITH

Richard F. Hatfield IN MEMORY OF OriS TURNER

William A. Martin

1'01.l6 110. lISpriog 2001

The !\rkaosas I.all)rr

~~


President's Report Continued From Page 3

Book Review Continued From Page 17

behalf of the Association. As we suggested in the last issue of the Arkansas Lawyer, invite new and old acquaintances alike of every gender, race and ethnic background to join us-help them join us. Make every licensed lawyer feel welcome and wanted. The time is now, the effort continues, the challenges persist, and the dream lives on. In what ever way you can, "(t)alk about a dream, ery to make it real." As my term began and as it ends, I still believe it's erue. Right now ... at this time and in this place ... it is an honor ro be a member of this noble profession.•

In the end, lawyers will find much to think about in this book. Lawyers will find especially interesting the chapter on " aturalization and the Courts" which describes the ways in which immigration law helped construct contemporary notions of race. Jacobson writes as a hisrorian and there are times when lawyers might want more precision. For example, he describes court decisions but excludes others that more closely supported his thesis. At other times, he relies on pamphlets and newspaper articles that, even for their time, were extreme. Other books, like Ian F. Haney-Lopez's, Whice by Law (19%), focus only on [he law's role in constructing race. But the vaJue of Jacobson's book lies In its almost encyclopedic scope. By drawing on newspaper accounts, popular and scientific books, political traces, and legislation, he shows just how complicated and pervasive racial thinking has been in immigration questions. Most important, lawyers will see the role the law played in legitimizing and privileging whiteness. And that will ask us co consider the role law plays coday in the continuing construction of race.•

..,a"'.... b..

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56

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The Arkansas Lawyer magazine Spring 2001