Issuu on Google+

The Arkansas A publication of the

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When Good Stress Turns Bad

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Arkansas BarAssociation

Vol. 37, No.2, Spring 2002 online at www.arkbar.com

Healthy Lifes!yles for Today's Lawyer

Rethinkingyour Investment Strategies

ArLAP helps Lawyers fight addictions, depression and other impairments

Can you live longer and still feel like a Warrior by using Mediation?


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."

...


PUBLISHER AmtlSQS &r Assodstwn

Phone,

(501)3~

F"" (SOl )3754901 Homepage: www.arkbar.rom E路Mail: p;ones@arkbar.rom EDITOR PQI Jonn GRAPHIC DESIGN

SDra LA"dis EDITORIAL BOARD Stuart P. Miller, Chair Wiley A. Branton Morton Gitelman James C. Graves J. Leon Holmes Jacqueline Johnston/Cravens Lucinda McDaniel David H. Williams Jacqueline S. Wright

Contents VOLUME 37,

UMBER 2

Features 8

OFFICERS President Sandra Cherry

Lawyers Battle Addictions, Depression and Other Impairments with ArLAP

President-Elect Murray Oaycomb

by Lynn Foster

lmmediate Past President Ron O. Ha.nison Secretary路Treasurer Willia.m A. MMtin Parliamentarian Jeannelle Denham

Board of Governors Chair David Va.ndergriff

14 Rethinking Your 401 (k) and orner Personal Investment Strategies

by Allyson Lewis

Young Lawyers Section Chair lim Cullen Executive Director Don Hollingsworth Associate Executive Director Judith Gray

BOARD OF GOVERNORS Judge Wiley Branton,. Jr. F. lhomas Curry lhomas A. Daily Elizabeth Danielson Kay West Forrest Lance B. Gamer Dave Wisdom Harrod Robert "Skip" Henry Gwendolyn Hodge Jill Jaroway Philip E. Kaplan Edwin N. McClure Lance R. Miller Marie-Bemarde Miller James M. Simpson, Jr. James D. Sprott Danny Thrailkill Teresa Wmeland Robert E. Young

20 Live Longer and Still Feel Like a Warrior: Why One Lawyer Chooses Mediation

by Robert Trammell

24 When Good Stress Turns Bad

by Mike Holloman

LIAISON MEMBERS Tom Overbey Judge David Burnett Carolyn B. Witherspoon WilHam Wright ntt Ark-UUl' uwyn (USPS 546-040) is published qI.WiCrly by IfJt AIbnY$ s.r A!lM:K:btion. Period..il::m post. ~id at Utt'e Rod:. Arlcansas. POSTMASTER: ROO addreJ cha.ngu to 11It ArbllUis uwyn-, 400 West Marldlam, Little Rock. Arlr:.tnsas 12201. Su.blcription priC'l! 10 non-members of the Arkansas Bar Association $25.00 per ~ar. Any opUUon ~ herein is thai of the authol;. _nd not ~rily that of the Arkansu Bat Association Of 11Ie Arbn.tlu ulluytr. ContributiOl15 to Tlrll ArbllSlII unoyu ~ wekome and shoukl be senl in two copies to mOOR,. Tht Ark....ws Lnuyu, 400 West Markham. Little Rock. Arkansas 7l201. All inquiries regarding advertising shouklbeter'lltoEdihx, TMArb.u.u Uwytl; _I theabow ~dl'tS5. Copyright 2002. ArkansM Bar AJlIOCi.arion. All rights~

Contents Continued on Page 2


Contents VOLUME 37, NUMBER 2

In This Issue 3

30

Presidenr's Report,

CLE Calendar

by Sandra Wilson Cherry

32

5

Judicial Advisory Opinions

Executive Directors' Report,

34

by Don Hollingsworth

Lawyer Disciplinary Actions

18

42

CLE Program Planners and Speakers for 2001

In Memoriam

23

48

YLS Section Report, by Tim Culfen

Classified AdvertisinglIndex to Advertisers

29 Sustaining Members of the Arkansas Bar Association

400 W. Markham Lint. Rock, Arkansas 72201

HOUSE OF DELEGATES Delegate District I-SE: Ray Allen Goodwin Delegate District 2-5E: Mark R. Johnson, Katharine C. Wilson Delegate District ]-5E: Michael E. Mullally. Paul D. Waddell, Dennis Zopler Delegate District 4·5E: Bill E. Bracey. Jr. Delegate District 5-5E: James Bradley Delegate District 6-5E: Chris Morledge Delegate District 7-SEt Donald E. K~ Delegate District 8-SE: Howard L. Martin Delegate District 9-SE: James P:H Flowers Delegate District 10-SE: William Kirby Mouser, David Sims Delegate District II-SE: Paul W. Keith Delegate District 12-5E: James Hamilton Delegate District 13-SE: Steve R. Crane, Brian H. Ratcliff, Robin Carroll Delegate District 14·SE: Frank A. PoEf, ChriStie Adams Delegate District 15-SE: Barry D. Barber, Todd M. Turner Delegate District 16-SE: Ronald D. Kelsay, John T. Vines Delegate District 17-SE: James Jackson Delegate District I-NW: Edwin N. McClure, Glenn E. Kelley, Hardy W. Croxton, Jr., George R. Spence Delegate District 2-NW: Ernest B. Cate, Boyce R. Davis, April M. Rye, Shannon L. Fant, Raymond L. Niblock, Steven S. Zega, Tim Snively, Man Durrett, Chris Reed Delegate District )·NW: Niki Cung, Claude S. Hawkins, Jr., Wyman R. Wade, Jr., Eddie H. Walker, Jr., Shannon L. Blan, Timothy C. Sharum. Jason Martina Delegate District 4-NW: Daniel B. Thrailkill Delegate District 5-NW: Gordon Webb Delegate District 6-NW: John T. TaNm, David L. Eddy Delegate District 7·NW: Danny M. Rasmussen, Rhonda Wood Delegate District 8·NW: Ted Sanders Delegate District I·e: Brad Hendricks, Gwendolyn D. Hodge, Ron A. Hope. Philip E. Kaplan, Harry A. Light, Stark Ligon, Charles C. Owen, Harold Evans, Charles L. Schlumbcrger, Don K. Barnes. Fli:z.aberh A. Thomas, Marshall S. Ney, Melva J. Harmon, John C. Wade, Jeff Broadwater. Marcella J. Taylor, Reed R. Edwards, M. Stephen Bingham, John Wyvill, Causler Edwards, David Sterling, Patrick Harris, Brenda Stallings, Mark Nlison, David Raupp, Rick Ramsey, Patrick D. Wilson Law Student Representatives: Valerie Glover, Universiry of Arkansas School of Law; Jason Lee, UALR William H. Bowen School of Law

2 The Arkansas l.;Jwyer W'MV.ar1<1Jar.aJm


Prc<,idcnL's Rcporl

Vision in Action Brings Progress Sandra Wilson Cherry It has been a year of looking forward, not backward, of recognizing our suengths and the heritage from which they come, and of recognizing the challenges we face, brought about by awesome change, and finding advantages in these challenges. Our ehallenges this year bring to mind rhe Longfellow poem, A Psalm of Life, which tells us our destined end or way is neither enjoymenr or sorrow. Rather, it is But to nct, thnt taeb tomorrow

Fiads It is with overwhelming gratitude mat I begin this last column as President. I must tell eaeh of you of my heattfelr appreciation for giving me opportunity to serve this ouÂŁsranding organization. A President's dreams and plans for continuing success and growth of our organization can only be accomplished by our experienced and supponive Staff and the many member volunteers who take rime from their busy lives and practices to strengthen OUf organization and enrich our profession. Thank you all for making this wonderful pasr year possible fot me and for providing the skill and wisdom to advance the cause of our organization and our profession. The pase year for the Association mirrors in many ways the path taken by OUf nation when on September Ii, and in the weeks which followed, we shared in the overwhelming grief felt by the entire country. We realized then, as did our fellow cirizens through our rhe land , that somehow we would never be quite the same again. Yet, like our magnificent nation, in the monchs since the tragedy, we have cominued to build and move ahead.

me

me

,ts firther

thoa todoy

We have acted co foster professionalism in order that the practice of law remain a livelihood dedic."ed to high principle and service. One important goal has been the development of the Arkansas Professional Practicum, a mandacory course for newly admitted atcorneys with its goals of enhancing the quality of legal services provided ro the public. This goal will soon be realized when we petition the Supreme Court co initiate this program. Additionally, our law schools. with the suppOrt of our Task force on Professionalism, will begin to incorporate professionalism orientation in their freshman offerings this fall. Through effortS such as thex we seek to preserve the traditions of law practice mOSt worthy of our great profession in the face of enormous and fasr paced change. This does not mean, however, we seek to avoid change for we are actually embracing it in ways which wiIl enrich and enhance the profession. To that end, we will, in the near furure, offer free Internet legal research to all our members. Our ] nternet presence will be even further heightened by new offerings, and by

building up present member services on our website like Arkansasfindalawyer. We have acted to insure our members can look forward co a newly refurbished Bar Cenret, StiLi locared on the banks of the Arkansas River where the first law firm in Arkansas scood, and co offering a revitalized place for our members to meet, work and relax; - a professional home whieh symbolizes, as ir has fot the last 29 years, the strength and continuity of our organization. A capital fund drive will begin soon to enable us to provide our members throughout the state a greatly improved facility, offering a wide range of services designed to further the practice of law and make available new technologies ro our membership. Our efforts continue to bring more people of color not only into the mainstream of our organization, but also the practice of law in Arkansas. As we strive to make our Association and the Arkansas legal profession more diverse and inclusive, we find we reap enormous benefits from fresh and innovative leadership. It has been a great privilege to work with you on these initiatives and many others to strengthen our profession's leadership role and IIlcrease the effectiveness of our Association. Jack joins me in thanking you for a wonderful year - for friendships enriched and friendships made, for the honor of nor only representing Arkansas in the nation's legal community but also in being itS hosts, - and for rhe memories.

Vol. 37 No. 2/Spring 2002

TI,e Arkansas La")'er

3


w


Executive Directors' Report

New Overdraft Notification Rule bV Don Hollingsworth email: dhollingsworth@arkbar.com Beginning July I, 2002, Arkansas will join many orner states in requiring Ilocificarion by financial institutions of any overdraft in diem trust aCCQums maincained by attorneys. Attorneys are encouraged to read the new rule wh.ich can be found in the December 20. 200 I per curiam opinion by the Supreme Court of Arkansas. To access the opinion e1ectronicaJly, go co www.arkbar.com and click on "New and Noteworthy. " There will be an overdraft nocificacion agreemenr between the Supreme Court, through its Office of Professional Conduct, and financial insrirutions throughout the stare. Since the per curiam makes atcorney consem to the reporting and production requirements a condition of the privilege [Q practice law 111 Arkansas. financial institucions will not have a separate agreement with the attorneys who have client trust accOlwtS with them. An important element of the new rule is mat financial institutions will automatically notify the Office of Professional Conduct of all overdrafts. Thus, the financial institution is not being asked to evaluate circumstances of an overdraft. Instead, the Office of Professional Conduct is responsible for determining whether further action is necessary. For example, if the overdraft was caused by an accounting error, verification ofsuch can be supplied to the Office. The Office of Professional Conduct will contact the attorney or law firm to request an explanation of an overdraft notification. If there is not a legitimate reason for the overdraft, the Office may take other action, including an audit of the client trust account. If a financial institution in Arkansas does not agree to the overd.raft notification, no attorney or law firm trust accounr can be maintained with said financial institution. The Office of Professional Conduct will post on the Supreme Court's website a current list of approved financial

institutions. Attorneys need to take note of a new record keeping requirement which the Supreme Court adopted in conjunction with the new rule. "Every lawyer engaged in the practjce of law... shall maintain and preserve for a period of at least five years, after final dispositjon of the underlying matter. the records of the accounrs, including check books, canceled checks, check stubs ... or other statements of disbursements rendered to clients or other parties with regard to trust funds or similar equivalent records clearly and expressly reAecting the date, amount, source, and explanation for all receipts, withdrawals, deliveries and disbursements of the funds or other property of a client." Section 28.G., Procedures Regulating Professional Conduct of Attorneys. Some financial institutions have experience with the overdraft notification since they operate in states which already require the notification. The Office of Professional Conduct, through its Executive Director Stark Ligon, has been contacting Arkansas financial institutions about implementation of the notification agreements. If you have questions about the new rule, you should contact Stark Ligon at 501-3760313 or stark.ligon@mail.state.ar.us. Some attorneys new to private practice may have questions about establishing or maintaining client trust accounts. Susie Pointer, the Execucive Director of the Arkansas IOLTA Foundation, is a resource on these operational aspects of trust accounts, you may contact her at 501-3761801 or spoinrer@aristorle.net. The Arkansas overdraft rule is based generally on Rule 29 of the Model Rules for Lawyer Disciplinary Enforcemenr (1996) of the American Bar Association. One of the reasons for enactment of the rule in Arkansas and other states is the faCt that operations of client trust accounts is a

primary source of disciplinary problems. Even though the vast majority of Arkansas attorneys operate client truSt accounts properly, there are instances of attorneys misusing the accounts or not paying close attention to the rules governing them.

Update on Website Later this year your Association's website at www.arkbar.com will be redesigned to better serve the needs of members and the general public. Among the new products on the website for Association members will be an online member directory and a legal

career

center.

Also

being

planned is a new legal research benefit for members. A new product already on the website is the index to The Arkansas Lawyer. Just click on "Arkansas Lawyer" on the home page, and at the bottom of this back page is Search Back Issues, which is a service of the Law library at the UALR Bowen School of Law. The index covers all issues of The Arkansos Lowyer back to its beginnings in 1967, and it is searchable by author, title, subject and words in titles. Also provided on this page are selected portions of recent issues of The Arkonsas Lawyer.

vol. 37 No. 21Spring 2002

TIle Ark.nsa, L.wyer

5


The POWER of

Practice Handbooks HatJ~ it

Your Way! Cuslomiu }'our Library ofAssociation Handbooks to Suit Your Pmonal Styk

Select from among prim offerings including the Arkansas Form Book, Domescic Relations, DebcoclCredicoc, Probate

Law. Handling Appeals or Real Estare litle Standards in Askansas.

arkansasfindalawyer.com

Did you know? Monthly Hits have t<ached 39.000 on askansasfindalawyer.com and 200,000 on arkbar.com.

OR Choose the Arkansas Form Book, DC'bror/Credicoc or

Probate Law Handbooks in word processing format. OR Opt for the simplicity of a CD ROM containing anyone or any combination of the following: Askansas Fotm Book. Debtor/Creditor. Probate Law. Handling Appeals in Askansas Ot Real Estate litle Standasds in Askansas. Watch for details on the latest technology offering when a new Arkansas Bar Association member benefit will make the Practice Handbooks available on the Imerner through Lexis Publishing. To order call 501-375-4606 or 800-609-5668 or email dgerald@arkbar.com. Or visit our website at www.arkbarcom for further information.

Hundreds of websites in Arkansas and around the United States have

links

to arkansasfindalawyer.com and arkbar.com.

Every day your Association's office receives 25 or more calls from persons wanting the name of an anorney to hire. The office refers the caJIers to arkansasfindalawyer.com, the Association's on-line attorney directory. Association members who wish to participate should contact

Barbara Tarkington for more information: 501-375-4606; 800609-5668; btarkingron@arkbar.com.


r

au r Membershi p arkansasfindalawyer® An on-line anorney direcrory for Association members only. Review the directory by going ro

Call Rebsamen Insurance at 501-664-8791 or 888-272-6656 for

Association discounts on: www.arkansasfindalawyer.com

• Professional Liability • Group Term Life Insurance

• Provides Association members a con-effective, new source

of diems with an accur:He listing - in over 50 areas of pracrict. • Free Link to firm's website.

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from Lexis-Nexis is

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Ltgislar;v(! Summary from thi! Hill

for members.

· · ·

Th~

Arkamm

Lawy~r Magazint!

Tht NtWJbu/ktin

Guidi! to Arkansas Statute of Limitations The Arkansas lAw Review

Advisory Ethics Opinions

Delivery Service Call UPS at 800-325-7000 and identify yourself as a

It's not always black and whi,e.

member of the Arkansas Bar Association, or use account

In the practice of Jaw, there's a lot of gray, Your Association's

#CP29000 1685.

Professional Ethics and Grievance Committee can

skills. The Arkansas Bar

help. Within specific

Retirement Plan

comprehensive statewide

ABA Members Retirement

CLE program, and members

Program. Call 800-826-8901

pay reduced tuition!

or visit the website at www.abaretirement,com.

Credit Card Program The MBNA Platinum Plus MasterCard includes

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Annual Meeting of the

Call 800-847-7378

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a card with the Arkansas Bar Association logo, no annual fee, miles plus

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guidelines, the Committee wiU issue an opinion on the member's proposed conduct. There is an administrative

charge of $50.

mended by 1,000 Arkansas atcorneys and hundreds of family members.

discounted Visit www.lexis.com or call

800-356-6548.

Section Web Pages The Sections of the Arkansas Bar Association now have their own web pages at www,arkbar.com. Click on "Committees and Sections," and then click on

the "Sec,ions(s)" ro which you belong.

Mailing Labels To purchase mailing labels of members at a discount, contact Barbara Tarkington

at 501-375-4606 or btarkington@arkbar.coffi.

Professional Networking The Arkansas Bar Association is the best opportunity in Arkansas for attorney interaction through the Association's public service projects, sections and committees. The

On-line legal research

The VALR Law Review

up-to-date information and Association provides the most

Lexis-Nexis

·•

Booklets & Guides

Conference Room

Consumer Law Handbook

Association members can utilize the conference room at the Arkansas Bar Center for client meetjngs, depositions and similar matters. Contact the Association

Senior Citizens/Caregivers

Gllide Small Claims Booklet • ,

· Handbook

Arkansas Veterans

Call 501-375-4606 ro order or download from www.arkbar.com

office at 501-375-4606 or 800-609-5668. The room has seating for 12 to 14 persons. The Bar Center is located across the streer from the Pulaski County Courthouse.


IIL\l.IIIY l.Ir I.S [) I.rs rOR IODM'S 1.,\\\ Y[R

Lawyers Battle Addictions, Depression and other Impairments with ArLAP It is estimated that one in five lawyers suffers from alcohol or drug abuse and related disorders. Do you have such a person for a colleague? Or are you struggling with these problems yourself?

By Lynn Foster

Some of us have special problems. We may drink so much in rhe evening that we "black our" and the next day we can't remember whar happened. We may arrive at the office late every morning because depression makes the simple acr of gccring our of bed a serious challenge. We may depend on Xanax to get us through the day, and "up our dosage" on parricularly srressfuJ days. A few of us emer a downward spiral exacerbated by chemicals or addictive behaviors or depression that ends in the Joss of our marriages. or licenses, or lives. Statistics show that approximately one in ten adult Americans suffers from chese rypes of problems. But for us lawyers. impairmem is twice this rate. It is estimated that one in five lawyers suffer from alcohol or drug abuse and related disorders. i Do you have such a person for a colleague? Or are you struggling with these problems yourself? Arkansas now offers a program to help lawyers recognize and identify their problems and find solutions within a confidential, supportive ne[Work. As I write this, Ms. Gail Harber is opening an office at 2 Van Circle in Linle Rock. She is the new direaor of the Arkansas 13wyer Assistance Program (ArLAP). This article will discuss the scope of the Arkansas program, how it works, and whether you, or someone you know, can benefit from ArLAP.

About the Author

BACKGROUND In the last few decades, our society's recognition of the COSts of substance abuse, depression and similar impairments has grown, and more resources have been devoted to assisting people with these problems. In 1988, the American Bar Association created the Commission on 13wyer Assistance Programs (CoLAP). Co LAP's mission is to advance the legal community's knowledge of impairments facing lawyers, and to support state and local bar association lawyer assistance programs. l All 50 states now have such programs. Lawyer assistance programs offer lawyers in trouble a chance to change their lives. Persons in the program receive treatment and continuing assistance over time, working with trained professional care providers and attOrney volunteers who have had similar problems. The mOSt common impairments arc alcohol and

8 TI,e Arkansas Lawyer

WNoN

df1<bar com

Lynn Foster is currently the Associate Dean for External Affairs at the University of Arkansas at Lirtle Rock William H. Bowen School of Law. A

member of the Arkansas Bar Association's Lawyer Assistance Committee, she volunteered to write this article our of gratitude to Alanon and Alcoholics Anonymous for having changed her and her family's lives.


subsrance abuse and depression. A significanr percenrage of anorneys refer themselves. Colleagues, family members, or disciplinary agencies refer omers. In Arkansas, the impetus for ArLAr began with attorneys in the Pulaski County Bar Associarion and rhe Arkansas Bar Association. Both associations formed lawyer assistance comminees, which worked for the esrablishment ofa starewide program under the jurisdicrion of the Supreme Coun. The Supreme Courr laid down the framework of the program in a per curiam order issued December 7,2000. 2 In March of 2001 the Arkansas Supreme Court creared the Arkansas Lawyers Assisrance Program Commicree, which was charged wim esrablishing policies and procedures for the program. 3 In a per curiam order issued September 20, 2001, the Supreme Court published the procedure manual of ArLAr.4 There are many more people who deserve recognirion for the esrablishmenr of ArLAP than can be named in this article, but some of the "prime movers" behind ArLAP include Jim Smirh, the current chair of the Arkansas Bar Association commicree, Judge Wayne Gruber, ex-Presidenr of the Pulaski County Bar Association, Ron Harrison, President of the Arkansas Bar Association during 2000-2001, Janet James Robb, currenr chair of the Supreme Coun comminee, and past and presenr members of the Supreme Court and Arkansas Bar Association committees.

SCOPE OF ARLAP ArlAP is intended to help lawyers and judges who suffer from physical or mental disabilities that result from: disease, substance abuse, disorder, trauma, or age, and that impair their ability ro pracrice or serve. S This article will refer ro all of these qualifying conditions as "impairmenrs." Some behaviors and disorders rhar could qualify as impairments include depression, anxiety disorder, bi-polar disorder, gambling addiction, sex addiction, and Alzheimer's Syndrome. Harber describes ArLAr as a "broad brush program," emphasizing thar its scope: is inclusive. ArLAP will use a wide array of services as well, ranging from advice ro anorney mentors to professional referrals ro structured intervenrions ro early idenrificarion training. Rehabilitation support is also available. Harber emphasizes the flexibiliry of the various trearmenrs and

possibilities available.

PRINCIPLES ARLAP

AND

GOALS

OF

Today we know that alcohol abuse, subsrance abuse, and depression are treatable condicions. Oftentimes, similar impairments like those broughr on by age or trauma are as treatable as well. Impaired lawyers are obligared to seek help and cooperate in treatment in order to regain their full effectiveness. Every lawyer and judge bears a responsibility to be aware of the signs and symptoms of alcohol or subscance abuse, and other impairments, and ro assisr colleagues in getting treatmem. ArLAP's goals are ro assist lawyers and judges in overcoming rheir impairments, in rebuilding their families. and in returning to legal practice or the bench. In addition, ArLAP also exiscs to educate the legal community about these impajnnents, and about imervention, rreatmem and suPPOrt programs. 6

ASSISTANCE How will ArLAr help' People can come to ArLAP by several different routes. Lawyers who suspect or know that they need help can comact ArlAP direcrly. Irs office in Little Rock is purposefully located far from bar associations and courts. Lawyers can ralk ro a staff member who will listen to mar lawyer's particular situation. explore possibilities, and help craft a plan of action. This may involve meeting with an attorney memor who has had the same types of problems, or gerting help from a docror or other professional. ArLAP will make referrals and assist the attOrney in finding the appropriate agency. Spouses, family members, colleagues, or anyone who has first-hand information indic3ring that a la\.vyer is impaired can conracr ArLAP as well. While many impairments are diseases, they are unlike physical diseases in rhis respect: many impaired individuals are deep in denial, and will go co great lengths to avoid admitting to themselves, let alone anyone else, thar they have a problem. The diseases affect thought processes; there is no such thing as an alcoholic who is reasonable about his or her alcoholism. In some cases, ArLAP will recommend a "srructured inrervemion," where family, friends and colleagues sit down wirh an individual in a professionally

lcd, supportive, nonjudgmenral envlronmem and try to morivare rhe individual to seek help. Finally, ArLAr will accept referrals from the Arkansas Professional Conducr Committee, the Arkansas Judicial Discipline and Disability Commission, or any agency with similar disciplinary authority. The Committee will nOt accept anonymous referrals. Once 3 referral is received, the Committee will invesrigare ro determine whether impairmenr exisrs. If impairment is confirmed, the Director will arrange for a meeting with the attorney or judge. The individual can sign a contract to participate in a treatmem plan of action, in which case his or her identiry will remain anonymous. Or rhe individual can refuse, in which case it is possible that the arrorney or judge may be reported to the appropriate disciplinary comlTiinee. The comracr can require emering imo an assessment, treatment cenrer, treatment program, or hospiral; absrenrion from using alcohol or chemicals or destructive behaviors; compliance with all 3sseSSmenr and treatment program recommendations and rhose of me Direcmrj and paymenr of all expenses. The care provider would men carry out trcarmenr or assessment. The Committee will monitor providers and programs to make sure they conform ro accepted standards of carc. Once treatmenr is completed, the recovery process begins. The recovering lawyer or judge will be asked ro sign a recovery contracr, which setS forth rerms that the individual will follow for at least three years. Recovery plans can include contacting the Direcror upon release from rreatlllenr; random drug screening; documentation of participation in twelvestep meetings, such as Alcoholics Anonymous or arcotics Anonymous; and quarterly meetings with the DirectOr. In addition, ArLAP provides inrervention counseling for family, friends and colleagues in cases where a structured. formal Volunreer intervention is conducred. attorney mentors will assist in inrerventions, serve as liaisons berween ArLAP and COUfrs and bar asSOCiations, and provide compliance Illoniroring. Harber trained the firsr group of menrors in March. If you are interested in volunteering, contaCt her.

Vol. 37 No. 21Spring 2002

n,e Arkansas LAwyer

9


These typical signs and symptoms may indicate that you have a problem: Do you drink or use drugs [0 improve your job performance or deal with difficult people or situations? Do you miss appointments, depositions or coun appearances? Do you fail to return phone caBs? Do you drink or use drugs when you are

alone? Do you miss deadlines or neglect work; and is the overall quality of your work

declining? Do you have increased discord in your marriage or family? Do you make excuses or lie about rhe frequency or quantity of drinking or

using drugs? Has your life become unmanageable because you cannOt comrol your drinking or drug use?

These typical signs and symptoms may indicate that you are an "enabler"-someone whose behavior is actually hindering a sick person from seeking help: Do you protect a lawyer from the consequences of his or her own behavior by making excuses? • Do you join in the lawyer's denial and refuse ro acknowledge any problems? • Do you assume that simply using willpower or reason or acquiring more moral integrity can solve the problem?

CONFIDENTIALITY Confidentiality is essential to the success of ArLAl~ It is particularly importam in a small state with a small bench and bar. Harber plans (Q follow the strictest confidentiality, not even revealing the names of ArLAP participanrs to the Comminee, but identifYing each with a number. The Model Rules of Professional Conduct and the Canons of Judicial Conduct have been amended to keep information received by ArLAP and irs volunteers completely confidential, except for cases where the attorney receiving treatment is continuing to break the law or is breaching the terms of the treatment contract.

EDUCATION

1·800·275·8903 www.amfs.com medlca/experts@amfs.com

AMFS· _ _ - . 1 _ _. . . . . .

What do you know about alcoholism, subsrance abuse and depression? Some common fictions are: He's not an alcoholic-he doesn't drink every day. She's got such a wonderful career and family-alcoholics are homeless and unemployed. He can't be addicted because he only takes prescription drugs. She can get over her depression if she just exerts a little will power. Usually, alcoholics and addicts can quit by themselves, withour treatment'? "[A]ddiction treatment specialists typically use the words "addict" and "alcoholic" inrerchangeably because a person who is addicted to one substance is susceptible to addiction to all other psychoactive drugs."8 Thus, a cOlllmon pattern for a person who is nOt in treatment is to quit one drug bur take up another. It is possible for addicts and alcoholics to abstain, hut "they cannot sustain their abstinence without others' help."9 Therein


lies the importance of the community and conract of a detoxification facility, or twelvestep groups, or a menror. Twelve-step groups date baek to the I930s, when a small group of people experimenred with a variety of techniques and formulated the "Twelve Steps," a series of beliefs and actions forming the foundation of AJcoholics Anonymous, AJanon, and similar organizations. IO Alcoholics and addicts like to believe that they are social drinkers and users, but this is not true. Without treatment, their prognosis is bleak. The good news is mat help is available rhrough ArLAP.

CLIENT SUPPORT SERVICES Moore Stephens Frost, an affiliate of MSF Financial Group, is the largest Arkansas-based accountingnrm. The diversity ofour clients and the resources we possess mean that we can dedicate a team ofprofessionals on any project in a timely and results-assured manner. Ln filct, our strategic services go fur beyond what traditional accounting nrmsofJer. Our goal is to support you as you,' turn, support your clients_ In the areas of Business Valuations and Ltigation Support, we offer a number of fOcused services designed to meet specific objectives.

Contact Information Arkansas Lawyer Assistance (ArLAP) Ms. Gail Harbn; Director 2 l-1zn Circle, Suite 7

Program

BUSINESS VALUATIONS arital Dissolutions· Estate and Gift Ma

rs

haritable Contributions' Spin-offS and Reorga ization

Littk Rock, AR 72207 501-907-2529· bttp://www.arlnp.org

Business Dissolutions· Buy·SeIi Agreements Sales or Mer ers· Bankruptcy and R organization

ArLAP Committee Members

Employee Stock Ownership Plans

Janer James Robb, Lirtle Rock, Chair Dr. Phil Barling, Fort Smirh Judge Kathleen BeU, West Helena Gary R. Burbank, EI Dorado Gail Harber, Lirtle Rock Judge David Laser, Jonesboro Dr. Joseph ManindaJe, Benron James E. Smith, Jr., Lirtle Rock Christopher Thomas, Lirtle Rock 1. George Edward Bailly, Impairment, the Profession, and Your Law Partner, Me. B.]., Apr. 2000, at 96.

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10. Id at 168.

6. ld. Vol. 37 No. 21Spring 2002

The Arkansas Lawyer

II


Investment advice from Financial Engines is now available to ABA Members Retirement Program participants. We've taken a good thing, and made it better with online investment advice. The only retirement program created specifically for law firms offers personalized online investment planning from Financial Engines. Program participants benefit from detailed allocation and diversification recommendations in addition to assistance with the creation of individual strategies geared towards specific retirement goals. This further enhances the Program's investment lineup of eight core funds, three structured portfolio services, and an integrated brokerage option. With over $3,5 billion under management we provide flexible plan services with comprehensive management tools that minimize your fInancial administrative time. engineS' Your firm is eligible to participate if you or one of your partners or shareholders is a member of the Arkansas Bar Association or American Bar Association. And because the Program has no minimum investment requirements it's just as easy for small firms to get started as large. That's flexible investments and full service, delivered to your firm regardless of its size. And it's nO'N enhanced with online investment advice. The ABA Members Retirement Program does more than ever to help your participants make the green.

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I Hj\UIIY LIlT:,1H,ES I-...'R IOD;\'y'S L;\WYrR

Rethinking your 401 (K) and Other Personal Investment Strategies If the 90's made us all think we were investment

By Allyson Lewis

geniuses and that planning for retirement was as simple as putting your money in the stock market and leaving it alone, the last two years have made many investors rethink that investment strategy. From January I, 1991 through December 31, 2001, the S&P 500 generated an average annual return of 12.93% and the NASDAQ posted 12.77%. Conversely, if you look at the three year period from January I, 1999 through December 31, 200 I, the S&P 500 generated an average annual return of -1.03% and the NASDAQ posted a dismal -3.83%. Many investors are asking, "Why is my 401 (k) wonh ilie same amounc it was at the end of 1998' What happened to the last thtee years?" Let'S

first look at the math. Just

[Q

make life easy assume you had accumulated

$ I00,000 in your 40 I (k) by the end of 1998 and that you were inveSting in the S & P 500 Index. 1998 year-end value $100,000 1999 +21.04%year-end value $ I21 ,040 2000 -9.10% year-end value $109,998 200 I -I 1.88% yeat-end value $ 96,930 Investing in the S&P 500 was kind of a best-case scenario for long-term stock investors. However, many of you reading this article may have had a healthy portion of your 401(k) held in growth mutual funds that more closely mirrored the NASDAQ Composite Index. For comparison, using the same information as above illustration, the following shows how a $100,000 invesnnem in the NASDAQ Composite would have performed over the last three years: 1998 year-end value $100,000 1999 +85.59%year-end value $185,590 2000 -39.29% year-end value $ 112,672 2001 -21.05% year-end value $ 88,955 The last three years have taught us many things: Risk exists. The pain of losing money has taken many invescors by surprise. From the beginning of tbe bull market in 1982, most people thought they could invest in the

me

14 TI,e Arkansas lawyer VMW.arkbar.com

About the Author ,---.....,,-,----, AJlyson Lewis is a Senior Vice Presidem, Financial Advisor for Morgan Stanley in the Jonesboro. Arkansas office. She is also a Cercified Financial PlannerTM. You can reach Allyson 3r 870972-0002 or allyson.lewis@morgansrnnley.com


stock market and juSt wait for the money to come pouring in. From January 31, 1979 to January 31, 1998, rhe S&P 500 compounded at an average annual rate of return of over 17% per year! With the exceprion of rhe 22% decline on Black Monday in 1987, the corrections were fairly limited and considerably short in their duration. Investors used the dowmurns to add to their positions and they were rewarded time and time again. For the most part, the last 20 years caused investors to lose sight of the underlying risk of investing.

The importance of diversification. Diversification emphasizes the importance of utilizing proper asset allocation strategies. Asset allocation is a fancy term describing how investors choose to allocate their financial assets between the basic asset classes of Cash. Bonds, and Stocks. The key question you may wam to ask yourself now is: "Is my 401 (k) properly allocated imo the correct blend of cash investments. bond investmems and srock Investments?" And further. "Within the srock category, am 1 investing in the appropriare rypes of growrh assers for my age and risk tolerance?"

Begin with quality. Qualiry invesrments should build rhe foundation of all investment strategies. This is true whether you are talking about building your personal portfolio or your 401(k) plan.

Compound Interest - time is on your side. The best time to start investing is with your very first paycheck. If you can begin to save 100/0 of yoar pre-tax income from the beginning of your career. you should be able to accumulate a large enough nest egg to help plan for your financial furure. This again takes us back to one of the most significanr benefirs of your 401 (k) planthe faCt that once you have signed up. your money is automatically withdrawn from your paycheck and placed into an investmenr account that is designed to be lefr alone until you are ar least 59.

The final responsibility is yours. The last three years have caused many long-term investors to rethink their investmenr strategies. In the future, it may no longer be as simple as putting your retirement dollars into a retirement plan without thoroughly understanding all of

your available II1vestmem options. EDUCATION will playa much larger role in many people's investment strategy. Raising the bar on your own personal understanding of your investment options could dramatically impact the future performance of your retirement plans. The question then becomes what do I do now? STEP 1

Reassess your personal risk tolerance level. Defining your personal risk rolerance level will allow you to build a portfolio rhat is the most suited to help you reach your future financial goals while allowing you to invest within your comfort wne. This short questionnaire may offer some insight into your personal feelings toward risk. It will also rank some of the common facmrs that determine your ability to take on risk. These factors include age, income. current savings and general investment knowledge. 1. What is your age? 1. 65 and over 3. 36-64 5. 35 and under 2. What is your investment time horiwn for this money? 1. 1 year 2. 2-5 yeatS 3. 5-IOyears 4. 10-20 years 5. 20 years or longer 3. What is your primary objective for this money? I. Safery of Principal 2. Current Income 3. Growth and Income 4. Conservative Growth 5. Aggressive Growth 4. Regarding your income. do you expect it to: 1. Decrease dramatically in the furure 2. Decrease a slight amounr in the future 3. Stay about rhe same 4. Increase with the pace of inflation 5. Increase dramatically 5. What amount of money do you have set aside for emergencies? I. None 3. Enough to cover three months of expenses 5. Enough to cover six or more months of expenses

6. Which statement best describes your personal investment experience? 1. I have never been responsible for investing any money. 2. I am relatively new investor. 3. I have invested some of my money through IRAs and through employer sponsored retirement plans (401 (k)) for quite some time. bur now I am ready to develop additional investment strategies. 4. I have invested for quire some time and am fairly confident in my ability to make prudent lIlvestmenr decisions. 5. I have invested money for years and have a definite knowledge of how the various stock and bond markets work. 7. Regarding your view of risk. which investment would you be more comfortable making? 1. I am comfortable investing in savings accowlts and CDs that are FDIC Insured. 2. I invest in savings accounrs and CDs, but I also own various incomeproducing bonds and/or bond mutual funds. 3. I have invested in a broad array of stocks and bonds and mutual funds. but only the highest qualiry. 4. I have invested primarily in growth stocks and growth stock mutual funds. 5. I like to pick out new and emerging growth companies and aggressive growrh stock mutual funds. 8. To understand your risk tolerance level more clearly, which investment would you be more likely to invest in: This investmem has a 20-year average annual rerum of 6%. It has achieved those returns with infrequent and very slight downrurns. This investment has never experienced a negative return. Thjs investmem has a 20-year average annual return of 9%. It has achieved those returns with a few moderate downturns where the decline lasted less than six months and then began to recover. It has experienced more than one-year of negative rerurns. This investment has a 20-year average annual return of 14%. It has achieved those returns while cycling through several periods of above average returns and several periods of substantially negative returns.

Vol. 37 No. 2/Spring 2002

TI,e Ark.ns.s l.wyer

15


What's Your Score? To score the risk colerance (est simply add up me points. You will receive one

Ultra Conservative

10

8

37%

â&#x20AC;˘

CUll 18"-

"

..... ,,,.

Fairly Conservative

3. Moderate Cash Bonds Stocks

Bonds

22

24

no

__

Casb

Bonds 57,.

";.I

7% 93%

20

Step 2 Understanding your basic investment options

Ultraconservative

Stocks:

18

Ultra-aggressive

rolerance levels:

2. Fairly Conservative Cash: 12% Bonds: 51 % Stocb 37%

16

Stocb snlo

The following is a list of some sample asset allocations based on five basic risk

67% 15%

14

Bonds Srocks

risk rolerallce level.

"~OC"

12

I

5. Ultra Aggressive Cash 0%

These questions and this scoring scale is meant [Q be used only as a guide your actual investment plan may vary based on additional information that was not asked in [his questionnaire. But, after you have scored your risk tolerance level, the next step will be (0 ereare a porrfolio of investments that matches your asset allocarion to your

1. Ultra Conservative 18%

Fairly Aggressive

I

me risk cole ranee scale at right.

Cash Bonds Stocks

For this article, we will define a cash investmem as anything that carries a maturity date of less than 12 mOlHhs. Therefore the most common cash investments would include: Checking accounts Savings accounts Money market aCCOlllHS And shorr-rcrm CDs The advanrage of Cash invcsrmems IS their safety and their liquidity. The disadvantage is theif low return.

Bo/uis Bonds are also known as fixed income invesrmenrs. Bonds give you the opportunity to pur a specific amount of money inca an investment, receive a specific and usually dependable return, and then get your original invesrmenr back on a specific

fucure date. 5% 38% 57%

......

;J

Bonda3lt'llo

Ultra Aggressive

Fairly Conservative

point for each number that you circled. For example. if you circled 3 1, you receive one point. If you circled a 4, you receive four points. Please count the number of poincs you circled and place

a nar on

Moderate

c.h5~oderate

There are several bond strategies available fot a 40 I (k) investor: ",. Short-term strategy - shon-cerm bonds will mature in less than five years. They catry the lowest yields and the smallest amount of principal Aucru3rion. Risk averse

invcstOrs may

want

co buy high qualiry

shon-term bonds. 4. Fairly Aggressive c.nK Intermediate strategy - imermediare Cash 3% bonds offer maturities from five to ten years â&#x20AC;˘ Bonds 21 % Bonds 21% 10 lengrh. These bonds should give you a Equiry 76% somewhat higher yield that a similar shorr~78" [eTm hond, bur because of their extended . Fairly Aggressive maturiry dates, they have more volatile price fluctuations.

Long.term strategy - long-term bonds vary in length from 10 ro 30 years. They

16 The Arkansas L"''Yer 'MWI.8I1<bar com

26

28

30

32

34

36

38

40

often pay an even higher rate of rerurn man an imermediare bond, but because of their length. iliey have the most price volatiliry. Stocks

Stocks have hisfOricaJly been the favored asset class for long-term investors who have the time and the appropriate risk colerance level ro ride our the volatiliry inherem in the Stock marker. Bur, as the marker place has become more and more sophisticated, an ever-longer list of choices may have been added ro yout 40 I (k) plan. Hete ate some of the more common growth invesrmem options. Standard and Poor's 500 J/ock inda It is one of the most widely followed scock benchmarks. This index dates back CO 1923 and currently includes 500 stocks from 83 indusrries. Ir is often thoughr of as rhe "if you can't be3r 'em, join 'em" invesrmenr straregy. Larg< Cap Growtb Stocks Also known as large caps. Some investmem analysts consider a company with a market capitalization of over $2 billion to be a large cap stock. These companies are often well known srocks and arc referred ro as blue chip stocks. These srocks are growth oriented and are often in the faStest-growing industries. Industries might include rechnology, health care, telecommunications and some financials. Larg< Cap Vatu< Stocks Are known as large caps as well, but they are very different from the growth Stocks we just described. These companies are very large and well known bur they tend ro come from the older, "boring" industries like, transportation, energy, uriliries and consumer cydicals. It is importanr to understand the vasr difference berween growth stocks and value Stocks. They can both playa role in helping you reach your future financial goals, but they often rOt3te in and out of favor. For example, when growth srocks are in vogue, vaJue stocks may underperform and then growth may move inro a period of


underperformance while the old-time value stocks reclaim the limelight. Unfortunately, many investors will get caught in the trap of trying to chase the hor investment of the moment and they will see that growth stocks have been outperforming for the last two years. so they will sell off all of cheir value stocks and move that money into the growth sector only to find that now growth is beginning to fizzle OUt and value is coming back into favor. Economists and analysts will fight until the end of time trying to tell you exactly what you should be buying. A better strategy may be to buy some of both growth and value stocks and let the cycles rotate over time. Mid Cap Growth and Value Stocks Mid cap stocks refer to companies with a market capitalization from $500 million to $2 billion. These companies are usually not as well known but may offer a more aggressive growth porential. Please be aware that mid cap growth stocks and mid cap value stocks also act in very different manners and will perform differently under certain economic conditions. Small Cap Growth and Value Stocks SmaJl cap stocks refer to companies with a market capitalization of less than $500 million. They are even less likely to be known by the average invesmr, but hismry has shown that this asset class has generated the largest returns since 1926, albeit with a higher degree of risk. Balanced Funds A balanced investment seeks to invest in all three major asset categories - cash, bonds, and stocks. Different managers use

differenr strategies for achieving adequate returns while attempting to reduce risk by having some exposure to less risky assets like cash and bonds. International Funds The world is a very large place with investment opportunities at every corner. If you limit yourself to stocks in the United States, you are missing out on over 50 percent of investment opportunities. International investing can also serve as a hedge against difficult periods in the US srock markets. Risk of the various indexes as measured by standard deviation. The higher the dcviation, the higher the risk. It's time to quit hoping for a quick recovery in the stock market, which mayor may not happen in time to help rebuild your retirement plan. and it is time to develop an investment strategy. You need "A PROCESS" for achieving your goals and dreams that is less reliant on the probability of an unknown rc[Urn in a specific market,

and one that is more related to answering some very basic qucstions and then designing a WRITTEN FINANCIAL PLAN co cake you there. The bottom line is that you need ro fully understand your own risk tolerance level and then design a long-term asset alJocation strategy chat will allow you to think longterm. Understanding your personal investment options could be one of the keys to your success. Portions of this article were excerpted with

penllission from the author. Tbe Millioll Dollar Car aud (Dearborn. 2000).

$250.000

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EXAMINATION CONSULTANTS 1765 John Bryant Dr. - Conway, AR 72034 (501)450-6361 Retired from the Arkansas State Crime Laboratory

Vol. 37 No. 2/Spring 2002

n,e Arkansas La")'cr

17


Thank You to the CLE Program Planners and Speakers for 200 I Christie Gunter Adams

Thomas A. Daily

Amhony A. Hilliard

Betsy Meacham

james E. Smith

Katherine Adams

John A. (Zan) Dayis IV

Mark W. Hodge

Lance R. MiUer

Scott E. Smith

Stanley E. Adelman

John Gary Davis

Denise R. Hoggard

Marie-Bernarde Miller

Judge James Sparks

Sheila Alexander

Oscar E. Davis, j r.

AJice L. Holcomb

Stuart

I~

Miller

Brenda N. Stallings

Philip S. Anderson

Betty j. Demory

Leon Holmes

Chalk S. Mitchell, Sr.

james W. Stanley

Judge Ga')' M. Arnold

Rebecca J. Denison

Robert Hudgins

Judge james G. Mixon

Leslie W Steen

Judge Richard S. Arnold

John M.A. DiPippa

Eugene Hum

Sandra B. Moll

jean D. Stockburger

Jess L. Askew III

Kenneth P. Dougherty

Justice Annabelle C. Imber

Judge James M. Moody

Tim Tarvin

Joyce B. Babin

Thomas K. Dougherty

james Ralph jackson

Harry Truman Moore

Richard D. Taylor

James A. Badami

James F. Dowden

jim jackson

James Lee Moore III

Sammye E. Taylor Mary Ellen Ternes

James C. Baker

Richard C. Downing

jill R. jacoway

Charles A. Morgan

W Christopher Barrier

Winslow Drummond

judge Leon N. jamison

David E. Morris

Mark Bennen III

Paul F. Dumas

David C. Jones

James

Garland W. Binns, Jr.

Vernon Dunon

judge Edward P. jones

Rosalind M. Mouser

Wayne Timmons

Sam N. Bird

Davis Duty

Judge Henry L. jones, Jr.

Michael W Mullane

Charles W Tucker

Judge David B. Bogard

William A. Eckert III

Stephen W Jones

Morrell E. Mullins

Cynthia L. Uhrynowya

Will Bond

Jeffrey Ellis

1: Craig Jones

Stephen B. Niswanger

David B. Vandergriff

Raymond E. Bornhofr

Michael G. Epley

Donald judges

Lindlee B. Norvell

William A. Waddell, Jr.

Lawrence J. Brady

judge Audrey R. Evans

Philip E. Kaplan

Alan j.

John C. Wade

Judge Ellen B. Bramley

janee Flaccus

judge Edwin A. Keaton

Michael C. O'Malley

Danyelle j. Walker

Judge Wiley A. Bramon

jim Pat Flowers

Kevin P. Keech

Charles C. Owen

Bill H. Walmsley

David R. Bridgforth

Glenn Pasvogel

Judge joyce Williams Warren

c. Keisling

c. Moser, j r.

ussbaum

AJbert j. Thomas III Justice Ray Thornton

Judge Har')' A. Foln

Trent

Howard W. Brill

Lyle D. Foster

judge Tom J. Keith

G. AJan Perkins

John J. Watkins

Jennifer S. Brown

James M. Ga')'

Christopher Kelley

John V. Phelps

Steve \'qeaver

Justice Robert L Brown

AJlan Gates

Valerie L. Kelly

Kathryn E. Platt

Coleman Westbrook. Jr.

J. Carl Bush

Katherine C. Gay

Lee Kuykendall

Susie Pointer

Edward L. White

William Jackson Bun II

Melinda R. Gilbert

Lynda Barr Langford

James M. Prarr, Jr.

Robert W. White

Thomas M. Carpenter

Greg R. Giles

Stark Ligon

Troy A. Price

Judge Phil1ip T Whiteaker

Robin J. Carroll

John P. Gill

Mark Lindsay

Judge Willard Procror, j r.

J. Camille Williams

Beth Carson

james D. Gingerich

Catherine Magruder

Steven W. Quattlebaum

Judge Ralph E. W;lson, Jr.

Richard M. Carson

Judge Robert Gladwin

Judge David J. Manley

Michael R. Rainwater

Carolyn B. Witherspoon

Judge Jerry W. Cavaneau

Judge Don E. Glover

Thomas A. Mars

Phillip A. Raley

Tom D. Womack

Sandra Wilson Cherry

Judge James H. Gunter,jr.

D. Price Marshall, Jr.

Warren Readnour

Carol L. Worley

Cathy Clark

Russell A. Gumer

William A. Martin

judge Stephen M. Reasoner

M. Keith Wren

Constance G. Clark

Harold W Hamlin

Judge Michael H. Mashburn

Olan W. Reeves. Jr.

Judge Susan Webber Wright

W. Brooks Clower

Judge james R. Hannah

Judge Robin L. Mays

Richard Roderick

William G. Wright

Cathleen V. Compron

Regina Haralson

Sidney H. McCollum

Judge Floyd G. Rogers

Terry F. Wynne

Pat Jackson Compton

Ron D. Harrison

Bobby McDaniel

Roger Rowe

Judge Charles Yeargan

Christina Comstock

Richard F. Hatfield

Lucinda McDaniel

John L. Rush

Judge H. David Young

Barry E. Coplin

judge Jimm L. Hendren

Judge Mary S. McGowan

Charles L. Schlumberger

R. SCOtt Zuerker

Natc Coulter

Brad L. Hendricks

Kelly Murphy McQueen

john R. SCOtt

James E. Crouch

Judy S. Hen')'

Colli C. McKiever

Judge Bobby E. Shepherd

Gregory L. Crow

Mark Murphey Henry

judge Karen H. McKinney

Charles W. Shipley

Makolm Culpepper

Daniel L. Herrington

Phyllis M. McKenzie

Judge Barry A Sims

judge Don E. Curdie

Randy L. Hill

Jack A. McNulty

Judge Hamilton H. Singleton

18 n,e Arkansas Lawyer WMNarkbarcom


NOTIFICATION OF PHILLIPS UNNERSITY'S CONTINUED EXISTENCE (October 2001)

Phillips University, Inc. is pleased to announce that it successfully concluded its Chapter 11 bankruptcy proceeding and fully paid all allowed claims against it, with interest. While Phillips University's bankruptcy and the circumstances leading to it led to significant changes, Phillips University remains a validly existing Oklahoma corporation with 501(c)(3) status under the Internal Revenue Code and continues to fulfill an educational mission. To fulfill this mission, Phillips University will endeavor to operate in the tradition of the university as it existed on April 1, 1998, and to engage in such educational activities as the university is authorized to engage under applicable state and federal law. Without limiting the scope of the activities in which Phillips University may engage to fulfill its educational purpose, Phillips University is expressly authorized by its articles of incorporation to make scholarships and / or grants available to: (1) individuals pursuing a liberal arts curriculum and attending a private college or university; and (2) faculty and staff of private, liberal arts colleges or universities pursuing advanced educational studies. Phillips University offered one-time educational grants of $250 for the academic year 2001-2002 for students who were enrolled during the university's last two years (1996-97 and 1997-98), but did not graduate from the university. This grant program was established in recognition of the sacrifice of those students who remained at the University during these difficult years. Phillips University can be contacted by: writing to P.O. Box 2127, Enid, OK 73702-2127; faxing (580) 548-2213; e-mailingtoadmin@phillips.edu;ortelephoning(580)237-4433.Phillips University's website address is www.phillips.edu

Phillips University Alumni and Friends Association Organizes a Legacy Foundation

The Phillips University Alumni and Friends Association (PUAFA), a 501(c)(3) organization, which serves as the collective voice of Phillips University's alumni and friends, recently organized the Phillips University Legacy Foundation (PULF). The Phillips University Legacy Foundation is a 501(c)(3) organization that will be awarding: (1) undergraduate scholarships for students attending private colleges or universities affiliated with the Christian Church (Disciples of Christ); (2) scholarships for Christian Church (Disciples of Christ) college and university faculty members who are pursuing continuing professional education; and (3) undergraduate and graduate scholarships to former full-time Phillips University faculty and staff employed during the period of September 1992 through August 1998. Ultimately, the Phillips University Legacy Foundation may fulfill its educational mission through pursuit of additional educational activities as authorized by its articles and bylaws. The Phillips University Alumni and Friends Association can be contacted by: writing to Connie Cravens at P.O. Box 331, Enid, OK 73702-0331, or telephoning (580) 237-4433. The Phillips University Alumni and Friends Association's website address is www.puafa.org The Phillips University Legacy Foundation can be contacted by: writing to Gene Challenner at p.o. Box 2127, Enid, OK 73702-2127, or telephoning (580) 237-4433.


IIE.t\lTIIY L11 [..)T) U:S lOR [OD;W'S L.AWYf R.

How to Live Longer and Still Feel Like a Warrior Why One Lawyer Chooses Mediation If you really ask most parties they only want their case completed fairly and are not concerned with the method used to complete it.

By Robert Trammell

INTRODUCTION In our earliest days at law school, we are trained as combaranrs. Rules of Evidence are a weapon to "keep out" evidence, even information relevant to a dispute. Rules of Procedure are reviewed every time a pleading is filed for the possibiliry of "striking" or "dismissing" the pleading or even the entire action. The uncertainties are bothersome co lawyer and client, to say the lease Add co that all the delays and you, my friend, have a date with frustration. Imagine that your judge has cancelled your trial for a third time, agreeing the surprised defendant is cmirled to further discovery, or that a criminal case bumps your civil maner, which is already in year three. Trying [0 keep your c1iem informed, you couJd explain that the court system is overburdened and under-funded, that judges often cannot afford to take the time to discipline abusive lawyers, or that the imperfect civil justice system is still a good alternative to duels or a good 01' Sevier County taiJ-kickin'. The truth is I sometimes think litigants might be better off with one of those quick resolutions when we consider the vat of stirred molasses we call the litigation process. As Phillip McMath recently observed, the litigation process is, after all, only about "what you proved" and very linle about what is tfuth. So within that context there is now a growing industry: mediation and "new wave" (translated "affordable") arbitration. Most cases could be resolved by one or the other, and as time passes that will be the case in Arkansas. Logic and economics demand it, and when the public catches on, our clients will too.

WHAT IS MEDIATION? Simply put, this is an informal and non-adversarial process whereby a neutral third person acts to encourage and Facilitate the resolution of a dispute without dictating what it should be. A good mediator probably can help reduce obstacles to communication about the dispute, identify issues and even explore alternative resolutions. The decision, of course, remains solely with the parries. Who should access an alternative resolution? Obviously, criminal cases are not candidates. A recalcitrant (Webster's definition: "to kick against anything") defendant does not seek a resolution and neither does the gun-slinging plaintiff. But if you reaUy ask most parries, they only want their case completed fairly, and

20 TI,e Arkansas lawyer IWNIsr1<bar.com

Robert "Bob" Trammell has tried a variety of cases big and small, plaintiff and defendant, civil and criminal, over 21 years. He successfully answered the "wake up call" of a serious illness. His primary aspiration today is to be mayor of fictitious Denny Valley, in Ferndale, Arbnsas, horse country. where all is in harmony bur the demand for legal services flourishes.


are nor concerned with the method used (Q complete ir. The late Randy Warner, formerly a respected litigaror-rurned chief executive officer, once told a meeting of defense lawyers at Red Apple Inn that he would gladly pay a fee premium to end a legal dispure early in rhe process.

NEGATIVES OF LITIGATION There are several factors militating against the current litigation system permitted by the courts, where a complainranswer is followed by the application of overdone procedures, which result in skirmishes, battles and finally the war. These are: Cost in Time. Eighteen months of preparation and three days to three weeks away from your home and work place is not arypical. Cost in Petsonal Well Being. The tension of carrying around a legal controversy through trial and appeal is harmful to the human systems of lawyer and client. Repeated hits of adrenaline in the daily "fight Ot Aight" of litigation strain the human machine. Is there any wonder litigation is called a "young man's game?" Cost in Dollars. If anybody reading this article needs to be enlightened about the cost of prosecuting or defending any case to conclusion, please drive your Mercedes over to my office for a reality check. There Must Be a Winner and a Loser. By definition. The Public Forum. Does the corporate defendanr in an intellectual property lawsuit really want the public to read the daily newspaper's account of how it lost a case due to the treatment of a Mother Teresa-type plaintiff who came to the company with a great idea? ImpersonaJ. No one really feels good leaving intimate marters like the welfare of your kids or your own future to a decision of the court system. No one says at the end of the day, "Man, am I glad Igor ro be a litigant!"

POSITIVES OF MEDIATION Cost in Time. Mediating a case would substantially reduce the time ro completion. Cost in DoUars. Mediation is relatively . . lIlexpenslve. No Winners. No Losers. Mediation limits the wounds of the adversarial process and provides emotional release. The confidenrial nature of mediation eliminates or drastically reduces the risk of public

embarrassmenr and allows the parties (Q thrash out issues. It eliminates the risk of having in-courr commenrs quored later. Simply relling your side of the story, in any fOfum, can be magical. A simple <'I'm sorry" can take the hurtful feelings and combativeness our of the process. PersonaJ. The parties involved fashion a resolution to their dispute. There can be cooperation instead of antagonism.

MEDIATION IN ARKANSAS There may be 20-30 unregulated, uncertified mediators statewide compared (Q the 6,500 certified mediators in Florida, the nation's leader in the area. While courtmandated mediation is ingrained in Florida's civil and family law process, Arkansas has little regulation and no sratutory guidance for the mediation process. Anyone, regardless of training or education, can insrantly be a mediator in Arkansas. In the future, mediators in Arkansas wil1 have to be certified by way of education combined with specific training. They will be regulated by a commission of the state or of the Supreme Court. They will have a Code of Conduct and a Code of Ethics. One day, good lawyers will not only be trained in the classic litigation style where settlement is only thought about after a lengthy war of artrition (meaning "wearing down" or "grief from feelings of shame"). They will know to do their case evaluation with thoughts of how the controversy can be resolved. We have a duty as professionals and humans to show the client how they might avoid that vat of molasses. When that day comes, lawyers will live longer and feel as good about ourselves as we might when we have been the consummate warrior.

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Vol. 37 No. 2/Spring 2002

n,e Arkans"s lawyer

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It's Within Your Reach. Roster of Attorneys. Field of Practice Section. Listings of County, State and Federal Officials. Easy-to-access products and services in the Classified Section. Professional and Biographical Section for Participating Attorneys. A Comprehensive Court Section Including Contact Information.

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Young L1v:yers Section Report

2001¡2002 AYear to Remember Arkansas Bar Association 104th Annual Meeting June 12-15, 2002 ATTENTION YOUNG LAWYERS (Lawyers under 35 or admitted less than 5 years)

Plan to Grab a Bite in the Exhibit Hall and Meet at 12:45 p.m. in the Mercury Tower (3rd Floor) to elect Section Officers. YOUNG LAWYERS & LAWYERS YOUNG AT HEART Chill out with Big Phil and the Chills. 8:00 - ? in the Arlington Hotel Lobby

bV Tim Cullen Bridging the Gap, Law Week, handbook revisions, literacy programs, CLE sponsorship, disaster relief legal serVices, and participation in bar leadership and committees are just a few of the programs and services Young Lawyers have provided this year. But these programs and services don't JUSt happen. They require valuable time and energy from dedicated volunteer young lawyers. As my term as chair winds down, 1 want to take this moment to salute the young lawyer volunteers that made it all happen. First, Dustin McDaniel and Chris Gardner rook our Association guides for the public to a new level when they teamed up to produce a Spanish language version of the Consumer Law Handbook. Next, Michelle Cauley has served to keep the YLS In Brief running as a valuable resource for young lawyers. Elizabeth Smith is working diligently with many other young lawyer volunteers and with members of the Arkansas Association of Women Lawyers to put on the best law week program in memory by putting young lawyer volunteers in local classrooms to teach a law-oriented curriculum to ninth graders. Contact Elizabeth or a member of her committee if you want ro bring this project to your local classrooms. In addjtion to his duties as secretary and treasurer of the Young Lawyers Section, Mark Hodge has spearheaded a tutoring program in Little Rock schools where lawyers volunteer to help students with their reading skills. Mark is one of the many young lawyers who is quietly making a difference in his community. David Johnson has led a team of

volunteers in revising the Statute of Limications Handbook. Watch for ir this summer, and thank David for all of his work on this imporralH resource. David Sterling is traveling the country on behalfof Arkansas young lawyers in his position as district representative [0 the American Bar Association. Thanks to David for his energy and emhusiasm in this important job. Paul Dumas is organizing CLE for the annual meeting ro train volunteers for when disaster strikes and the Disaster Relief Legal Assistance plan goes into action. Please sign up and get trained so you can help the bar respond when the next namral disaster rumbles through our State.

Cindy Thyee is preparing to cake the reins at the annual meeting in June and lead the Young Lawyers Seccion next year. I wish Cindy all the best as she continues the important projects of the section and embarks on new ones. The best part of being active in the Young Lawyers Section is the chance to interact with some of the best of young lawyers (and some not-so-young la\'.'Yers, too) who choose to give of their time and energy to the association and their communities. Because of the hard work and vision of past young lawyer leaders, like Price MarshaU, Baxter Sharp, SCOtt Morgan, Gwen Hodge, and Scott Zuerker, the section wiU always have a firm foundation of quality service projects. The challenge for the future is to broaden our participation among members, while refining our goals to make a meaningful contribution to the association and our local communities.

Vol. 37 No. 2/Spring 2002

TI,e Arkansas Lawyer

23


I 1[;\1.11 IY L.II rSTH.r:s

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LAWYER

When Good Stress Turns Bad Recognition of what stress is and ways of preventing the over-reaction to stress are important to maintaining a healthy lifestyle.

By Dr. Michael Hollomon

The way our bodies respond ro stress is an age~old. deeply ingrained physiologic response that has been helpful for survival. We react co Stress whether it is a good stress, such as bringing a newborn home from the hospiÂŁaj, or bad stress, such as not having the finances to make ends meet. Recognition of what stress is and ways of preventing the over-reaction co stress afC important ro maintaining a healthy

lifestyle. Ir is helpful ro learn how to use the stress response in a positive way instead of Icning it use you in a negative way. First, what is it that we are calling the stress reaction? In my mind the stress reaction is part of the autonomic nervous system. It is the "fight or Right" response. During times of stress your heartbeat and blood pressure usually increase. your blood sugar rises and body hormones such as adrenaJin will surge. These physical responses have been very helpful in an evolutionary sense because they benefited survival. Pre-historic humans might have been confronted by a mastodon or a saber-toothed tiger, and these were needed physical responses that would enable them to fight the intruder or to flee the intruder. The physical reactions to the internal physiologic changes helped to discharge the body changes and then were followed by relaxation. The "ahhh" momelH or sigh of relief is another way of desctibing this. The stressors that are confronted today come in quite a different form. The mastodon has been replaced by other "monsters" including perhaps the "paperwork monster". We typically do not have the physical response to the stressor that was common in earlier rimes and thereby no easy way of discharging those body changes that build up. We don't always take rime to do the relaxing thar would normally resolve such a problem. The srressors in modern life thar are most prevalent are financial worries, overcommitting in job or sociaJ acriviries, marital problems, job performance, health concerns or changes in family composition. Any major life change, even rhe pleasant ones, bring stress. What are the indicators thar srress may be causing you problems? Some of the common ones are irritabiJity, moodiness, difficulty sleeping, difficuJry focusing and increased muscle rension. Ir is possible to have any of these physical symptoms of

24 TI,e Arkansas law)'cr

VMW ar\<bar.com

is Associate MedicaJ Director at Ozark Guidance in Springdale. He earned his medical degree from the University of Texas Medical School 111 San Antonio. He received graduare training at Duke University and Downstate University in New York. Hollomon has had extensive experience in general and emergency medicine. He then re-specialized in psychiatry while completing a residency at Southwesrern Medical School in Dallas, Texas, where he was chief resident.


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2001-2002 BOARD OF

DIRECTORS

LETTER FROM THE PRESIDE T

OFFICERS

A ID EXECUTIVE DIRECTOR

Hon. Thomas Ray PRESIDENT Little Rock Sherry P. Bartley VICE PRESIDENT Little Rock Anna Via SECRETARY Dardanelle James D. Gingerich TREASURER Conway DIRECTORS Vandell Bland, Sr. West Helena Jim Jansen Pocahontas louis B. (Bucky) Jones, Jr. Fayetteville larry Kircher Bald Knob Freeman McKindra Little Rock Glenn Nishimura Little Rock James A. Ross Monticello Carolyn Witherspoon Little Rock EX OFFICIO Don Hollingsworth Executive Director Arkansas Bar Association

Dear Colleagues, The Arkansas IOLTA program traces its existence to 1984 when it was created by a Per Curiam Order of the Arkansas Supreme Court. Under Rule 1.15 of Arkansas' Rules of Professional Conduct, lawyers certify their compliance with proper trust account practices. This rule, which provides the guidelines for safekeeping the property of others, requires all Arkansas lawyers who hold client trust funds that are short-term or nominal in nature to place these funds in pooled IOLTA accounts. The interest from IOLTA trust accounts is paid to the Foundation. The Foundation then awards grants from these funds to programs that provide civil legal representation to poor Arkansans, for law school scholarships and for projects that aid in the administration of justice. In 2001 the Foundation awarded $800,000 in grants in these three categories. Over 260 banks offer IOLTA accounts and most do so without charging fees. This enables the Foundation to maximize the amount of funds that are available for grants for law-related community activities. The Foundation sincerely appreciates this support from the Arkansas banking community. A Bank Honor Roll appears on the last page of this Annual Report. Unlike past years, this year's Honor Roll is based on interest paid only through August of 2001. This seems the only fair course of action as most banks were paying interest of 2% or higher prior to the tragic events of September 11, but were unable to continue to do so due to economic events following that sad date. We urge Arkansas lawyers to thank their Arkansas bankers for supporting the IOLTA program. Please take a few minutes to review this report--especially the case vignettes that exemplify the good work done by Arkansas lawyers. We appreciate the positive response and leadership of the legal community in Arkansas. With the efforts of each of you, real people with real legal problems are able to access justice even though they are too poor to pay for civil legal services. Your work does make a difference daily in the lives of people who need legal help.

STAFF Susie Pointer Executive Director Dawn West Administrative Assistant

Thomas Ray President, 2001-2002

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Susie Pointer Executive Director

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UNIVERSITY OF ARKANSAS SCHOOL OF LAW, FAymEVlllE The following law students at the University of Arkansas School of Law, Fayetteville, received IOLTA scholarships for fall of 2001 : Kavin Burnell received the Arkansas Bankers Association IOLTA Scholarship. He is a graduate of Pine Bluff High School, and his mother, Ms. Loretta Burnett, resides in Pine Bluff. Mr. Burnett earned a degree in Political Science from the University of Arkansas at Pine Bluff in 2001.

Jessica Middleton received the Arkansas League of Savings Institutions IOLTA Scholarship. Ms. Middleton was raised in the Delta of Northeast Arkansas, and her mother, Ms. Angie Middleton, resides in Blytheville. Ms. Middleton obtained her undergraduate degree in Journalism/Public Relations at Arkansas State University in 2000. Johnnie l. Miller received the Arkansas Bar Association IOLTA Scholarship. She attended Marvell High School, and her mother, Ms. Mary Miller, resides in Marvell. Ms. Miller graduated with a B.S. from the University of Arkansas at Pine Bluff in 1995 and obtained a Master of Public Health from Tulane School of Public Health and Tropical Medicine in 2000. Ashley Mills is the recipient of the Walter R. Niblock IOLTA Foundation Scholarship. Her parents, Mr. Tony Mills and Ms.

Vickie Mills, reside in Van Buren. Ms. Mills is a 2000 graduate of the University of Central Arkansas with a B.S. in Biology. Recipients of Arkansas IOLTA Foundation Scholarships are Dawn Stidd and Caley B. Vo. Ms. Stidd received her undergraduate degree in Psychology from Southern Arkansas University in Magnolia. She is a long-time resident of EI Dorado. Ms. Va's father, Mr. Binh Va, resides in Rogers. Ms. Va is a 2001 graduate of the University of Arkansas with a B.A. in Political Science. UNIVERSITY OF ARKANSAS AT LITTLE ROCK SCHOOL OF LAW The following law students at the University of Arkansas at Little Rock School of law received IOlTA scholarships for fall 2001: David L. Jones received the Arkansas Bankers Association IOLTA Scholarship. He graduated from Bradley High School, and his father, Mr. Cecil H. Jones, Sr., still resides in Bradley. Mr. Jones is a 1999 graduate of lyon College where he earned a B.A. in Politics. He continues to reside in Batesville while attending law school. Laura O'Bryan received the Arkansas League of Savings Institutions IOLTA Scholarship. She graduated from Little Rock Parkview Magnet School and is a 1999 Summa Cum laude graduate of the University of Central Arkansas with a B.A. (double major) in History and Spanish. Leeland D. Jones received the Arkansas Bar Association IOLTA Scholarship. He was born in Little Rock, and his parents, Mr. and Mrs. Clifford D. Jones, Jr., reside there. Mr. Jones is a 2000 graduate of the University of Arkansas at Little Rock with a B.A. (double major) in History and Anthropology. Mindy D. Loveday is the recipient of the Waller R. Niblock IOLTA Foundation Scholarship. She was born in Hot Springs and attended lakeside High School. Ms. Loveday is a 2001 Summa Cum laude graduate of the University of Central Arkansas, earning a B.B.A. in Accounting. Recipients of Arkansas IOLTA Foundation Scholarships are Lori Burrows and Amy J. Dunn. Ms. Burrows was born in Little Rock and attended Bryant High School. She is a 1997 graduate of the University of Central Arkansas with a B.A. in Speech Communication. Ms. Dunn was born in little Rock and attended Southside High School in Fort Smith. She is a 1996 graduate of Hendrix College with a B.A. in Psychology.

UNIVERSITY OF ARKANSAS SCHOOL OF LAW - FAYETfEVlLLE I wish tD txprtJS my apprrriallon fir tIN Arklf1lJ4J IOLTA FounJim'on srhtJkmhip thol / havr rtetil/td 41 thr Univmlty ofA,ka1lSilS SrhDol of LAw. &rlfuJt ofyour gmm/Slty. I will ht htrtcr IIblt to ronrrntrllU 0" tIN stu4y of !lfw. I wilJ not haw 10 worry IlJ murh aboul II /Ark of mont] to pll] txpmsn whi/r hrrr. 111m a first ]tar law tllldnll. I hopt 10 join Ihr Publir Inttmt /.Aw FtJundalion IlJ wtlJ as partiripau in thr /Aw (linlcs our KhooJ ojfcrJ. M, /Mlllrr lO'lh arr to pnuTiu in ArkilnJllS lind poSSibly pursue a [,T'UJualt law tktrrt. Thank you vrry muchjor your hrlp.

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UNIVERSITY OF ARKANSAS AT UTILE ROCK SCHOOL OF LAW As 11K IRw Snulml rhDsm tD rtrnw Ifn Arklf111JlS IOLTA Foun4aMn 5mDlttrsJ,ip fir lix 2()()()..2QOl arlUinnir7'ar,

I want tD txpms my Ffltwk fir ]Our tmmJSiry. Your wilJinr.nm to sllppon!lfw SnulmfS in pUNult ofaJD IS a Intamnll to yourrommitmt1lt 10 justirt and lIN pursuit ofhighn rduration. 11 is a" ho"or to hallf! btl" rhou" from IImong my ptm to rrprnmt yourfOundation. J would liltt to ulJ]Ou about my tarr" plans. as wrlJ as myM/f I am ont'",,/ly from Bryant., whrrr 1 hvttluntil 1993. whm I brgan rollq,r at'M Un;wnity ofu"tral Arkansas in Conway. I r;radUilud Wit}, Q B.A. in Spt«h CommunicatIon in MIrJ of 1997. For rwo ]tilrJ tlfin' puluation, III.'Orlt«1 with Ar!a/I,WlISfiw Drug Frrt Youth, a statrww fUm-profit drllt pmJtntion tlgtnry. AJttr Ittlllint ADFY. I II.'IIS fOrru""u 10 rrpmrnt thr U"iud Slatts as a Volun~rr 111 thr hart Corpt. srrvi"t in thi Ftdnaud Statts ofMimmnill. M, as tl youth dnKl6pmrnt IIOlu"urr thn-r J()fjJjfUd my inttrr1fS in mtrnumtJ""llInd IN"",n rilhlS dn.'tl6pmrnt. AJttr rDmpktinl 171' JD al lhi WilJillm H. BoWt1l &boolof/.Aw, I p!lfn tD rontln,", WtJ,*ing on khalfofpmcns lilling in rkwloping rounm"ts. Somr lifttimt drtlfms ofmint haw brm ro work with thr Umi«1 Nmions Dtvrlopmrnl Programmt lind with Amnnl) Inttrmttio""l I truly tk tnj<r} publi( snvirr and IDok fOrward to ronti"uin: it as my lifrj 4n4 ttlrr" rhoirr. Thr thingJ in my hft I 1Id/,", most tJrr"" famIly, ""{nnuis lind IN firttiom tD t1Ip! thr man, opporrunitin thaI htl~'t pmrnud thnnstlws in 171' lift. TIMnk lOU fir providin: Illlditio",,1 suppon 10 fNlp brint my tOllIs to fruition.

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2001 rrOLTA JBA KHO JORROLL Since 199B, lhe Foundation has published a Bank Honor Roll based on average interest rates paid by each bank during that year. Due to the tragic events of September 11 and the resulling decline in the economy, the 2001 Honor Roll is based on average interest rates paid by each bank through September. While interest rates declined immediately after September 11, the interest paid in September was

earned in August at interest rates prevailing then. The Arkansas IOLTA Foundation gives special recognition and thanks to the following financial institutions (or paying an average interest

rate of 2.0% or higher AND waiving service charges on attorney lOl.TA accounts:

Alliance Bank, Hot Springs American Stale Bank, Jonesboro American State Bank, Osceola American Slale Bank, Paragould Arkansas Slate Bank, Siloam Springs Arvest Central Bank & Trust, Little Rock BancorpSouth, Camden Bank of Augusta

Bank of Oeljgh~ Nmda County, Prescott Bank of Holly Grove Bank of lake Village Bank of Uttle Rode Bank of Mountain View Bank of Rogers Bank of Star City

Citizens State Bank, Bald Knob Commercial National Bank, TeurUna Community Bank, Filyettevil~ OKatur State Bank Delta Trust, Hamburg Diamond State Bank, Murfreesboro Diamond State Bank, Nashville Farmers Bank, Greenwood Farmers Bank, Hamburg Farmers & Merchants Bank, Stuttgart Fidelity National Bank, West Memphis First Banle of Montgomery County, ML Ida First Community Bank. Batesville First Financial Bank, EI Dorado First National Bank, DeWitt

first National Bank, Hope First National Bank, McGehee Firsl National Bank, Mena First National Bank, Paragould First National Bank, Wynne First Slale Bank, Crossett First State Bank, Huntsville First State Bank, Warren forTest City Bank Helena National Bank Heritage Bank, Jonesboro Madison Bank & Trust, Kingston MartedT"" Bank McGehee Bank Merchants & ptanters Bank, Clarendon

_

Metropolitan National Bank, little Rock Newport ~ral Savings Bank OneBank, little Rock Pinnacle Bank, little Rock Portland Bank, Monticello Simmons First Bank, Dumas Southern State Bank, Malvern Summitt Bank, Malvern The Capital Bank, little Rock Unico Bank, Paragould Union Bank & Trust, Monticello Union Bank of Mena Union Planters of Central Arkansas, Clinton Warren Bank & Trust

A special thank you to the following financial institutions for paying interest AND waiving service charges on attorney IOLTA accounts:_ Arkansas Diamond Bank, Glenwood Arkansas National Bank, Bentonville BanCorpSouIh, Alma BanCorpSouIh, Fl. Smilh BanCorpSouth, Magnolia BanCorpSouth, Melboume BanCorpSouth, Stuttgart Bank of Cave City Bank of Dardanelle Bank of Englan<l Bank of Eureka Springs Bank of Fayetteville Bank of Harrisburg Bank of Pocahontas Bank of Prescott Bank of Salem Bank of the Ozarles, Ozark Bank ofTrumann Bank of Waldron Bank of Yellville Chart Bank, Perryville Citizens ~nk, Batesville Citizens Bank, Booneville Citizens Bank & Trus~ Van Buren Cleburne County Bank, Heber Springs Commercial Bank & Trus~ Monticello Community Bank of Cabot Community First Bank, Eureka Springs Community First Bank, Harrison Eudora Bank Farmers Bank & Trus~ Blytheville

Filnners Bank & Trust, Clarksville Filnners Bank & Trust, Magnolia fi"t Arkansas Bank & Trus~ Jacksonville First Arvest Bank, Siloam Springs First Bank of South Arkansas, umden First Community Banle, Conway First Community Bank, lonesboro First Community Bank, Pocahontas First Delta Bank, Marked Tree First Federal Bank of Arkansas, Harrison First National Bank, Ashdown First National Bank, Berryville Firsl National Bank, Crossell First National Bank, DeQueen First National Bank, El Oorado First National Bank, FL Smith First National Bank, Helena First National Bank, ~rianna First National Bank, Mtn. Home First National Bank, Springdale First National Bank of Eastern Arkansas, forrest City First National Bank of lilwrence County, Walnut Ridge First National Bank of Puis First Security Bank, Searcy First Service Bank, Clinton First State Bank, Conway First State Bank, lonoke First State Bank of OeQueen First Western Bank, Rogers

Firslar Bank, Morrilton Firstlr ~nk, North little Rod: feny lake Bank, Heber Springs Heartland Community Bani, Camden Heber Springs State Bank Malvern National ~nk Merchants & farmers, Dumas Merchants & Planters, Newport MidSouth Bank, Jonesboro National Bank of Arkansas, North lillie Rock National ~nk of Commerct, Memphis, TN Peoples Bank, Paragould Petit jean State ~nk Piggott State Bani Pine Bluff National Bank Pulaski Bank & Trust, little Rock Regions Bank, Batesville Regions Bank, Benton Regions Bank, Clarksville Regions Bank, Clinton Regions Bank, Conway Regions Ban~ EI Dorado Regions Bank, Harrison Regions Bank, Hoi Springs Regions ~nk, Jonesboro Regions Bank, Little Rock Regions Bank, Memphis, TN Regions Bank, Morrilton Regions Bank, Nashville

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Regions Bank, Osceola Regions Bank, Rogers Regions Bank, Russellville Regions Banlc. Searcy Regions Bank, Texarkana River Valley Bank, Russellville Simmons First Bank, Jonesboro Simmons First Bank, lilke Village Simmons first Bank, lincoln Simmons First ~nk, Searcy Simmons First Bank of Arkansas, Russellville Simmons First Bank of El Dorado Simmons First Bank of Northwest Arkansas, Springdale Simmons first Natiooal Bank, Pine Bluff Smackover Stale Bank SouthBan~ Manila Springdale Bank & Trust Superior Federal Bank, Fort Smith The ~nk of jonesboro TrustBank, Min. Home Twin City Bank, North little Rock Union Bank of Benton Union Planters Bank, Forrest City Union Planters ~nk, Marshall Union Planters Bank, Osceola Union Planters Bank, West Memphis Union Planters Bank of Northeast Arkansas, Jonesboro

Thank you to these other participating tOtTA banks for paying interest in 2001: BanCorpSouth. Hope BanCorpSouth, Toxanana Bank of America, Stlouis, MO Bank of Arkansas, Tulsa, OK Bank of Bentonville

Bank of McCr<l<)' Chambers Bank, Danville Cross County Bank, Wynne Delta Trust & Bank, little Rock Elk Horn Bank & Trust, Arkadelphia

farmers & Merchants Bank, Prairie Grove First ArkartQs Valley Bank, Dardanelle First National Bank, Ash Flat first National Bank, Blytheville First National Bank, Rogers

_ Hibernia National Bank, New Orleans, LA Mcilroy Bank & Trust, Fayetteville Peoples Bank & Trus~ Min. Home

This listing is based on interest rates on active attorney lOlTA accounts as reported to the Foundation by individual banks in 2001.


headaches, elevated blood pressure or elevated blood sugars. There are a number of mings that we can do co help prevent stress from overwhelming us. First and foremoS[ we should look co the physical, this tefers to the basic "how to take care of yourselr. There is an old Spanish proverb thac states "a man tOO busy co take care of himself is like a mechanic who is coo busy [0 take care of his rools". You have to take cate of the basic machinery of the body. This includes getting a sufficient amount of sleep. This also means managing your nutrition intake. It is important [0 eat in a conscious fashion. There are many different dietary philosophies that ate available. If you eat a healthy balanced djet in a conscious fashion, you will know what you are putting in your body and eat in such a way mat you are actively caring for yourself I feel mat this will address many of these stress related concerns. Obviously, you need to consult your physician if you have specific health problems. Exercise is also another very important faccor. Recalling the evolutionary response [0 stress, we all need that opporrunity to exercise and improve our body functioning. A5 we build up stress going through daily

living, we need to find opportunities to engage in vigorous exercise in which breathing is stimulated, muscle [One is improved and hormonal changes can be discharged. This also stimulates the body's own endogenous opiate hormones which offer a soothing aspect. It is also good common sense to manage your alcohol, caffeine and sugar imake. Caffeine. nicotine and sugar all have stimulatOry properties that will only increase the body's stress reactions. Getting suppOrt from friends and family is also important. No one knows whar stressors are causing you the most concern unless you share these. Many professionals feel that the less they external ize the stress the better they can handle it; however. they are instead inrernalizing the stress which only further stimulates the stress response. If you are able to share the difficulties that you are undergoing, you may find support and even some different ways of managing the stress that have not occurred to you. Decide what is important ro you and make it a priority. Every individual has his own goals. These may be making the most money. writing the most articles. having the busiest ptactice or having the best relationship with

your family. Whatever ir is make it important and work for it. Self-talk remains as one of the primary but unacknowledged ways that we give ourselves reinforcing messages. As you read this, you might be saying to yourself, "That's stupid. I never do that". Thar makes my point. One technique is to actually work on the messages that we give ourselves so they are positive. not negative, and certainly not catastrophic. Prayer and meditation are other ways to quiet rhe soul and find peace. Deep breathing is a natural relaxation technique that is easily learned and can be easily employed. This is not a narural thing for adults but is more natural to babies. It involves using the diaphragm, the area beneath the chest rathet than the chest itself. When you use more abdominal muscles in your breathing. more oxygen is taken in and the blood is forced to go through the system quicker so there is more oxygen to the brain and organs. It can relieve headaches. backaches, stomachaches. and sleeplessness and helps release the endorphins into the system. Blood pressure can go down. which is obviously good for the heart. It can help with emotional release. To practice deep breathing, sit comfortably in loose clothing

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The Arkansas lawyer

25


and breathe through your nostrils using your lower abdomen to bring in the air and hold the breath to a coum of five and then slowly let it out, doing this deep breathing for rwo or more minutes. You can gradually lengthen the amount of time that you breath, hold, and breath OUt, thereby increasing your relaxation. Properly managing your time can make even the most over-whelming "paperwork monsters'" disappear. Often we get to the place where things seem 5. of such magnitude that there is no way to complete all the tasks that we need to do. At these times of life it is good to remember the old adage about how one would eat an elephant. The answer is you would eat it one bite at a time. This means taking on manageable tasks and continue in a disciplined fashion to completion. The benefits of simply starting the process can be very helpful. Often we feel frozen in one spot and unable to take that first step. The first step is always the most difficult and arrer that all you have to do is take another step. There have been studies indicating that, 111 animals, JUSt making a physical movement or step in a fearful situation changes the brain's chemical balance.

Making adequate use of leisure time is another technique that is useful in reducing stress. When I talk about leisure time, it should truly be time off when there are no responsibilities other than relaxation. It does not help if you take work with you. This can be a weekend away with a loved one. It can be a simple evening away from work. Another useful exercise is, at the end of the day, choosing and describing one special event that has happened to you. It could be the ted flush of a cardinal in flight Ot the way the douds look when the sun shines through them. It can be an especially insightful statement that you have made or something witty said. Remember, describing and sharing that event helps put more of a positive spin on a day that might not have been there before. If you do not have someone special that you can share this with, think about sharing it with someone that should always be special, yourself. This can be through a journal where you record your feelings to help you to remember the positive pares of the day rather than JUSt the negative. Seeing trouble as opportunity is another way of handling Stress. There is a Chinese symbol for a crisis, which also means

"opportunity". Sometimes the stress can be an opponunity fot growth if viewed from the right direC[ion. Always take the time to look at the problem from many different angles to see if there is some way that you can benefit immediately or maybe more long term. There may be many times when stress goes beyond the normal limics that you can deal with by yourself. Some of the danget signs that would indicate the need to seek professional help would be extreme emotional liability, increased startle response, recurrene intrusive thoughts. Tearfulness to the point of not being able to control it, suicidal thoughts, abuse of alcohol or drugs, being unable ro do normal daily activities. Cognitive behavior therapy is one way that professionals can deal with this withour urilizing medications. This is a very effective way of helping with abnormal thought patterns. Research indicates that successful cognitive therapy brings about the same brain metabolism changes as successful medication therapy for anxiety disorders. There is a book written for me layperson on cognitive behavior therapy called Feeling Good - Th, N,w Mood T/urapy by Dt. David Burns. This book might be helpful for


people with mood problems or anxiety problems. There are sometimes instances when you or someone you love are in perceived danger of serious injury or loss of life. These episodes sometimes precipitate a condition called post-traumatic stress disorder

recreate all chat is bright and wonderful about this gift that has been given alJ of us. I encourage you to take this to heart and try to live each day well because we have no promise of another day and no way of changing what is past.

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(PTSD). Professionals can be at increased risk for chis as chey deal wich unstable clients. Early treatment can help shonen long-term incidents. In summation, Stress is a normal part of our lives that we will all have to deal with from time to time. The nature of stress has changed over time and has become more of an internal rather than an external mechanism. Therefore, it is important to try to take care of things in a more active way than what might be expected. It has been shown if you can change the way you think you can change the way you feel. One of the ways that the Navajo have of opening a day is a sunrise prayer, which they direct to the four geographic directions. They then say a simple morning prayer, "Today 1 will live well". This is a positive affirmation of life. It is also a way of living in the moment, of tiling each day as a gift, as a chance to

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Sustaining Members of the Arkansas Bar Association for 200 I Charles Greg Alagood H. William Allen Overton S. Anderson Philip S. Anderson KeimArman Ben F. Arnold Laura Archley Kennem B. Bairn Barry D. Barber W. Chriscopher Barrier Anmony W Barrels Sherry P. Banley R. T. Beard III Paul B. Benham III Evans Bemon Donald E. Bishop James B. Blair C. Tad Bohannon Ted Boswell William H. Bowen Robert B. Branch Debbie D. Branson William C. Brazil William C. Bridgform Fred E. Briner Jeff Broadwater

,

Edward W. Brockman Jr. John A. Buckley Jr. William B. BuergJer Richard K. Burke Julie M. Cabe Robert D. Cabe John C. Calhoun Jr. Jerry L Canfield Douglas M. Carson Daniel R. Carter Robert M. Cearley Jr. Jack S. Cherry Jr. Sandra Wilson Cherry William M. Clark Jr. H. Murray Claycomb John R. Clayton Ralph M. Cinar Jr. Randy Coleman Robert C. Compton Barry E. Coplin Ben Core Nate CouJcer Steve R. Crane Hugh E. Crisp Michael A. Crockett

James E. Crouch F. Thomas Curry James D. Cypert Thomas A. Daily John A. Davis III T. Martin Davis Robert T. Dawson J. C. Deacon Jack W Dickerson Michelle H. Dillard Philip E. Dixon Darrell D. Dover Winslow Drummond Davis Dury B. Michael Easley John D. Eldridge Don R. ElliOrt Jr. George D. Ellis John R. Elrod Srephen Engscrom Mike Everett Oscar Fendler Viccor A. Fleming Jim Par Flowers John A. Fogleman Robert M. Ford Kay West Forrest

G. Spence Fricke Lance B. Garner Pamela B. Gibson Sam E. Gibson W Dent Girchel Roger A. Glasgow David M. Glover Ray A. Goodwin Albert Graves Sr. John C. Gregg Ronald L Griggs David K. Gunn Michael E. Hale Donis B. Hamilton Frank S. Hamlin David M. Hargis David K. Harp Kennem A. Harper Ron D. Harrison Dave Wisdom Harrod Richard F. Harfield William D. Haughr Brad L Hendricks Sam T. Heuer

Curtis E. Hogue Alice L Holcomb W. R. Holland Cyril Hollingsworth Don Hollingsworth Ron A. Hope Robert E. Hornberger Eugene Hunt

Annabelle Clinton Imber Michael E. Irwin AJston Jennings Alston Jennings Jr. Bradley D. Jesson Glenn W Jones Jr. Louis B. Jones Jr. Robert L Jones III Philip E. Kaplan William H. Kennedy III Charles M. Kester Judson C. Kidd Warren O. Kimbrough Mike Kinard Perer G. Kumpe David N. Laser Sam Laser John T. Lavey Ike Allen Laws Jr. Stanley A. Leasure Robert O. Levi John G. Lile III D. Price Marshall Jr. William A. Martin David R. Marthc\vs Gail Marthc\vs Srephen A. MarmC\VS Ronald A. May S. Hubert Mayes Jr. Herbert H. McAdams 11 Edwin N. McClure Bobby McDaniel James H. McKenzie Toney D. McMillan JackA. Mc ulry Russ Meeks H. Maurice Mirchell Michael W. Mirchell Sandra B. Moll Margarer E.W Molleston T. Ark Monroe James M. Moody Harry Truman Moore

Richard N. Moore Jr. Rosalind M. Mouser William Kirby Mouser Charlorte B. Murphy Ralph C. Murray Tunomy J. Myers E. Sheffield Nelson George H. Niblock Raymond L Niblock Johnny L Nichols R. Gary Nurter Debby Therford Nye Bobby Lee adorn Conrad T. adorn Hugh R. Overholr Charles C. Owen Charles R. Padgham Nicholas H. Parton Richard L Peel B. Jeffery Pence Edward M. Penick Donna C. Petrus E. Lamar Perrus John V. Phelps orwood Phillips John B. Plegge Frank A. Poff Jr. David M. Powell William I. Prewert Thomas B. Pryor Donald C. Pullen Janer L Pulliam John I. Purtle Louis L Ramsay Jr. Richard L Ramsay Brian H. R.1tcliff Gordon S. Ramer Jr. Thomas Ray Elron A. Rieves III Charles B. Roscopf Charles D. Roscopf Kent J. Rubens John L Rush Donald S. Ryan Charles L Schlumberger Don M. Schnipper Isaac A. Scort Jr. John S. Selig Frank B. Sewall Dennis L Shackleford Stephen M. Sharum

J. L Shaver. Jr. James Marlon Simpson. Jr. H. Edward Skinner Ted C. Skokos Douglas O. Smim Jr. Laura H. Smim Robert D. Smim III David Solomon James D. Sprorr Thomas S. Stone John F. Scroud Jr. William H. Surroll Rex M. Terry William L Terry Robert F. Thompson Danny Thrailkill John R. Tisdale Fred S. Ursery James R. Van Dover David B. Vandergriff John C. Wade Wyman R. Wade Jr. Bill H. Walmsley Bill Walrers G. Chris Walmall John D. Warson Timomy F. Warson Sr. Bud B. Whetstone David H. Williams Robert H. \V"illiarns W Jack Williams Jr. J. Gaston Williamson Mike Wilson Willian, R. Wdson Jr. Teresa M. Wineland Carolyn B. Wimerspoon Tom D. Womack Marsha C. Woodruff Henry Woods Robert R. Wrighr 111 Damon Young Paul B. Young Robert E. Young

Vol. 37 No. 21Spring 2002

TI,e Arbnsas La"Yer

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Vol. 37 No. 21Spring 2002

The Arkansas la'ryer

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Judicial Advisory Opinions February 21, 2002

William W. Bemon F. Wilson Bynum, jr. james L. Williams, II james L. Hall RE: Advisory Opinion # 2002-03 Gentlemen: This committee has been asked whether a judicial candidate for Circuit Judge may describe himself in his campaign materials, advertisements and publjc statemenrs as "judge". when he has served for the past six years as a parr time city judge. The position of city judge is an appointive. rather than elective position. The Code of judicial Conduct views a city judge as a Continuing Parr-time Judge. who is required to comply with most provisions of the Code. See AppLication Section (B). The Code bars a judicial candjd3rc from knowingly misrepresenting "the idemiry. qualifications, presem position or other faCtS concerning the candidate or an opponent." Canon 5(A)(3)(d)(iii). Regardless of whether the candidate is appointed or elected. fuJI time or parr time, he is a judge. Accordingly, we condude mat the Code does nor bar him from describing himself as a "City judge" or a "judge" in the campaign. The term does not misrepresent his present position. It does nor suggest he is an incumbent; it does nOt urge his reelection. We are aware of Ark. Code Ann. 7-7-305 which states mat a person may use me preftx "judge" in an election for a judgeship only if the person is currently serving in a judicial position to which the person has been elected. However, that statute prescribes the name that will be used on the election ballot. The st3[ure does not purport to concrol campaign advertising by judicial candidates. We understand the potential elective disadvantage to other judicial candidates who may have been judges in the past, perhaps even to elective positions. But because they are nOt presently serving as a judge. the Code bars them from calling

32 The Arkansas Lm'Yer

WMN 00<bar ron

themselves "judge." However, the Code permits them to list their prior positions and their qualiftcations. The Supreme Court could amend the language of the Code or the comments to it. Likewise, the Supreme Court could provide consistency by amending the Code provisions on campaign advertising to correspond to the statute on ballot names. But it has not yet done so. As we have stated in prior opinions, our task is not to rewrite the Code, but to interpret its clear language. We conclude that under the language of the Code it is not misleading for a city judge to describe himself or herself as "judge" in his campaign advertising.

February 21. 2002

Carla D. Fuller, Esq. RE: Advisory Opinion # 2002-02 Dear Ms. Fuller: You stated in your request for an Advisory Opinion dated january 15. 2002 that you were an announced candidate for Circuit judge. You stated that "Pursuant to Act 1789" of an undisclosed year [which we interpret to be Arkansas Code Annotated 710-103(c)-Alternative Ballot Access) you would achieve having your name placed on the ballot by petition of registered voters. You asked, "whether it would violate Canon 5 of the Arkansas Code of judicial Conduct for me to personally solicit signatures for this petition." Canon 5C2 states: "(2) A candidate shall not personally solicit or accept campaign comributions or personally solicit publicly stated support. Your asking persons on an individual basis and not as a group such as an social gathering, assembly, club or any other organization, whether organized formally or otherwise, to sign your petition does not constitute soliciting publicly stated support. The key is approaching people on an individual basis to ask them to sign the petition. Reference to our Advisory Opinion No. 95-04 mjght be helpful ro you.

March 15, 2002 The Arkansas judicial Ethics Advisory Commirree issued an advisory opinion to Doug Norwood, of Rogers, Arkansas, Special judge for Centerton Ciry Court. He requested the opinion on behalf of a number of special judges in the atea. judge Norwood, and the other attorneys are serving as part-time judges in the absence of judge Rodney Owens. since judge Owens has volumarily recused from hearing cases, pending the outcome of his trial on felony charges. The attorneys are concerned that they may have a conflict based on judicial Ethics Advisory Opinion No. 98-02. The opinion states that while the Committee recognizes the exigency of the circumstances outlined in Judge orwood's letter. they find nothing in the Code of judicial Conduct or relevam case law distinguishing continuing pan-time judges from part-time judges serving temporarily, albeit indefinitely. Nor do they believe the appearance of impropriety may be CUted by w3..lver. The Committee referred to Advisory Opinion o. 98-02 which notes that the concurrent practice of law and judicial service are prohibited under Canon 4G, but that exception is made for continuing parttime judges under Section B of the Application section of the Code. The Committee pointed Out mat while the Code stOpS short of an outright ban on the practice of law by part-time judges, dearly restraint and caution are called for. In that context, the Committee cited Canon 2 and concluded: [Aln individual who accepts the position of a continuing part-time judge places the judicial office first in service and priority, and certain restrictions must follow. It is, the Committee believes, self evident that a municipal judge who is engaged in an adversarial role opposing a prosecuting attorney in a criminal case brought by the State and who presid over proceedings involving that same prosecuting attorney is in an unrenable position, however principled that individual may be. Acting as both


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judge and jury, rhe municipal judge has significant discretion in dealing with the prosecuting anomey. To oppose that same anomer in another matter creates an appearance of impropriery. The Committee concludes, as have a majority of other jurisdictions. that license must yield to ethic, where, in the perception of reasonable minds, the ability of municipal judges to carry out their responsibilities with inrcgriry, competence and impartiality could be impaired. It follows that the initial responsibilicy rests on the municipal judge to decline the personal representation of a criminal defendant in any circuit within which the prosecuting attorney has jurisdiction.

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to call upon its friends and associates and ask that they make a pledge or donation to the UNCE It is nor a politicaJ event and he would not be identified as a candidate for Circuit Judge. and there would be no solicitation of voting by the UNCE The opinion states that Mr. Johnson is not prohibired under the Code from parriciparing in the evem. The fund-raising activities he described are expressly

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Vol. 37 No. 21Spring 2002

TI,e Arkansas Lawyer

33


Lawyer Disciplinary Actions The lAwyer Disciplinary Action Summaries are written aruJ provided by the Supreme Court of Arkansas' Committee on Professional Conduct. The complete opilliom since July 27, 2001 are available on tbe Inunlet at: http://courts.state. flr. mlcourts/cpc_decisiolls .html. Full-text paper copi" ofall attorney disciplinary decisions are availablefrom the Office of the Ckrk of the Courts, Justice BuiUJillg, 625 Marshall Street, Littk Rock, 72201, at a fcc of50 cmts per page.

SUSPENSION: RANDALL WAYNE DIXON, Bar No. 83052, Dardanelle, Arkansas, epe No. 2001-147, was placed on immediate interim suspension by Committee Order filed December 28, 200 I, on allegations of serious misconduct involving alleged tiilure to properly represenr clients, failure to appear in coun, failure to communicate a senlemenr offer, and multiple violations of provisions relating to his attorney trust account and accounting for client funds. Model Rules implicated are: 1.1, 1.2(a), 1.3, 1.4(a), 1.4(b), 1.15(a), 3.4(c), 8.4(a), 8.4(b), and 8.4(d).

Benton, Arkansas, epe o. 2001-040. The complaint from Special Prosecuting Attorney Lona McCasdain alleged attorney represented William Hill in a DWl case in Bryant Municipal Court. After a "no contest" plea. Hill had Baxter file a notice of appeal and the proceedings were certified for filing in circuit court. The record was filed three days toO late in circuit court. and the prosecuting attorney's office successfully moved to have the appeal dismissed as being untimely filed. Reprimand ovember 13,2001, for violating Model Rule 1.3. o. JAN ROSE CROMWELL, Bar 75024, Fort Smith, Arkansas, epe o. 2001-095. Judge Jim Spears filed a complaint alleging anorney failed ro appear for a scheduled court hearing, and then offered an unusual explanation for her absence when brought to court later by his bailiff. Attorney responded that she must have been confused due to lack of sleep from case preparation when she gave her explanation to the court, and she apologized to the court and the Comminee. Her conduct was found to have been prejudicial to the admininracion of justice by causing delay in the resolution of her court matter. Reprimand February 25, 2002, for violating Model Rules 1.3 and 8.4(d). Attorney's concurrent petition for voluntary transfer to inactive stams was approved by the Committee.

J. D. Moon, an attorney. and his counsel Steven Jackson. complained that respondent auorney agreed to collect delinquent accounts of Moon on a contingency fee arrangement bm never reduced the fee agreemenr to writing. as she said she would. They claim attorney did not provide status reports, return files or provide a full accounting of funds collected, as requested by the clienr and later by his counsel. Attorney dispUted many of the assertions of complainants. Reprimand February 19, 2002, for violaring Model Rules 1.4(a), 1.5(c), 1.15(b), and 1.16(d). DONNY GENE GlLLESPIE, Bar No. 61010, EI Dorado, Arkansas, epe No. 2001-080. According to a Per Curiam of May 10, 2001, attorney was counsel of record for Dennis Burnett on a criminal appeal. The notice of appeal was timely filed, but attorney failed to perfect the appeal by bringing up the remainder of the record necessary for the appeal, even after being directed to by the Cout(. Attorney failed to get an extension of time to file the record beyond the initial ninety (90) day limit, failed to file a motion for belated appeal as directed by the Court, and caused delay in the orderly processing of his client's appeal. Attorney failed to respond to the Commirree's complaint. Reprimand January 16, 2002, for violating Model Rules 1.3, 3.4(c), and 8.4(d).

REPRIMAND: ANN C. DONOVAN, Bar No. 78043, Fayetteville, Arkansas, epe No. 2001-057.

M. JOE GRIDER. Bar No. 96109, PocahOntas, Arkansas, epe No. 2001-020. The complaint arose from information made available from criminal matters in Accountant/Economic Analysis federal coun in United State v. George " iek" Wilson et al. in 2000. Mr. Grider • Business Valuations was a new attOrney, practicing with his • Personal Injury Damage Analysis father, and paid with public funds for • Divorce (Property & Child Support Issues) work allegedly done for the srate child support enforcement agency. He was charged with conspiracy to commit mail Court-Appointed. Regular Court Appearances fraud in the criminal case, but reached a 11510 Fairview Road, Suite 100 pre-trial diversion agreement by which all Richard L. Schwartz Little Rock, AR 72212-2445 charges wete dropped, he testified, and he Certified Public Accountant Phone: (501) 221-9900 became liable for an amount of loss Certified Business Appraiser Fax: (501) 221-9292 attributable to his actions in the matter. Certified Fraud Examiner email: schwartz@busvalu.com Attorney responded that he prepa.red L.. ....J billing statements on instructions from

JIMMY RAY BAXTER, Bar No. 78012,

34 TI,e Arkansas Lawycr

WNNaMJar.com


Lawyer Disciplinary Actions his father. Attorney offered to consent to discipline, admitted his conduce in submitting false time sheets to the Office of Child Suppore Enforcement violared Model Rule 8.4(c) and accepted a Reptimand with twenty-four (24) months probation, which Order was filed November I, 200 I.

JAMES

PROCTOR MASSIE, Bar No. 75084, Little Rock, CPC No. 2001-082. A complaint from Circuit Judge John Plegge alleged arrorney failed to appear for a scheduled jury rrial in June 2001 in a criminal case. Anomer consemed to discipline. and accepred a Reprimand filed February 25, 2002, for violaring Model Rule 8.4(d). Attorney's concurrent petition for voluntary transfer to inactive status was approved by the Commircee.

OSCAR STILLEY, Bar No. 91096, Fore Smith, Arkansas, CPC No. 2001-060. A Per Curiam issued March 22, 2001, referred this matter to the Comminee, on allegations attorney had proceeded in a certain civil appeal (Hubbs) after a decision, in another of his appeals (Henson), of the same court four months before on the same eype suit against his position, a frivolous position to take. Anomer responded mat the court had still not answered the central question he raised in the second suit. Reprimand November 13, 2001, for violating Model Rules 3.1, 3.4(c) and 8.4(d).

not provided for by law and engaged in frivolous tactics designed [0 cause delay in the probate proceedings. Attorney is alleged ro have failed to properly and timely comply with court orders regarding accounting for reoc funds he received from estate property. Anorney disputed the allegations, and asserted he vigorously represented his client. The Committee found anorney filed moeions and asserted positions with no basis in law for support; that his tactics were dilatory and designed to unnecessarily frustrate the opposing party; that he disobeyed a COUf[ order by failing to timely deposit estate funds in the court registry; that he failed to timely respond [0 discovery; and that his conduct caused unnecessary delay to the administration of justice. Reprimand February 27, 2002, for violating Model Rules 3.1, 3.2, 3.4(c), 3.4(d), and 8.4(d). PATTY ANN LUEKEN, Bar No. 89161, Little Rock, Arkansas, CPC No. 2001-019. Attorney advertised brieRy on her law firm website that she was "the only boardcertified family law specialist in the state of Arkansas," and "1998 - Certification in Family Law (only Board Certified Family Law Specialist in the state of Arkansas." Attorney is certified in family law by the Narional Board of Trial Advocacy, but Arkansas does not recognize a famjJy law specialization under the current Arkansas Plan of Specialization. Caution January 16, 2002, for violating Model Rule 7.4(c).

CAUTION: MARQUIS E. JONES, Bar No. 74089, Little Rock, Arkansas, CPC No. 2001-113. The complaint of Courtney Walls alleged attorney filed a petition for probate administration with will annexed on behalf of an illegitimate daughter of complainant's father. Compla.inant later filed [0 probate a will that did not acknowledge the illegitimate daughter or provide for her. Attorney failed to file a required inventory in his probate proceeding and failed to respond to discovery requests in the proceeding filed by complainant. The court later admitted the second will, finding it revoked the one filed by attorney. The attorney thereafter allegedly filed pleadings

REGINALD SHElJDN MCCULWUGH, Bar No. 85102, Little Rock, CPC No.

-

2001-073. A Per Curiam order of July 9, 2001, granted a motion for rule on the clerk for Mark Latta, attorney's client, for whom attorney admitted responsibility for failing to timely file one of two criminal appeals. Attorney accepted responsibility before the Comminee. Caurion January 25, 2001, for violating Model Rules 1.3 and 8.4(d).

KIRBY

RIFFEL, Bar No. 71 065, Pocahontas, Arkansas. CPC No. 2001-002. In late 1999 complainant Harvey Beasley wi th attorney possible discussed representation on an appeal from circuit court of a DWl-2 jury conviction. A sum of money, characterized either as a fee or as a retainer for anorney to review the rue and transcript to see if representation would be undertaken, was paid, the transcript ordered and reviewed by the attorney. Notice of appeal was filed by the original trial counsel in the circuit court, not respondent attorney. Respondent attorney eventuaIly decided not to handle the appeal, but did not return the transcript and notify Mr. Beasley of this decision not to accept employment until several days after the time for lodging the record in the appellate court had expired. Attorney asserted he had no responsibility, as he never was counsel of record. Caution December 27, 200 I, for violating Model Rule 8.4(d). STUART CARL VESS, Bar No. 73124, North Little Rock, Arkansas, CPC No. 2001-078. A Per Curiam issued Ocrober 4, 200 I, stated attorney filed a timely notice ofappeal for his criminal client but failed to

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Lawyer Disciplinary Actions perfect the appeal. Attorney responded by

stating his c1iem was incUgenr. could nor pay for the transcript, and char the transcript was prepared once the diem was found indigent. However, 3cwrney was not notified by the clerk that the record was

complete until the filing deadline had passed. The court directed atrorney to get the record filed. Attorney admitted to the Commince if was his responsibiliry, as counsel of record, ro get the record timely

lodged. Caurion Februaty 27, 2002, for violaring Model Rules 1.3, 3.2, 3.4(c), and 8.4(d).

DANIEL E. WREN, Bar No. 90096, Little Rock. CPC No. 200 I-I 16. A complaint by Phillip Wilson alleged attorney sent a solicitation letter [Q a workers' compensation cl.iem of Wilson, indicating the recipienr received the lener because the firm sent them "co nearly all persons who have recem open Workers' Compensation claims. The Comminee found the lener failed co properly disclose how the attorney obtained the information that the recipient had a case at me Workers' Compensation Commission. Cauejon February 25. 2002. for violating Model Rule 7.3(d).

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PROTECTING YOUR PERSONAL RELATIONSHIPS By Standish McCleary Reprinted by permission of the American Bar Associarion from GP Solo, July/August 200 I, Volume 18, Number 5

Making the transition between work and home can be an interesting proposition. We pleased co have her husband finally listen are certainly prepared to analyze, sort our, and show some understanding. He replied and give the benefit of our analysis to chat he chought he always had understood whatever problem we see presemed for her, at least intellectually. and that perhaps solution. Bur suppose our significant other they expressed their feelings of is more interested in first talking about feelings, being understood emotionally, or understanding and caring differendy. Indeed, they did have different having some unconditional empathy and communication styles. and they struggled to support. Can we discern the difference? Are reach each other despite their many we willing ro do it and restrain our urge to differences. not the least of which were assess, solve, advise, and conclude? If we gender and profession. He was a lawyer. and wish to respond empachetica1ly and talk she was not. Neither was crazy or wrong, about our own feelings, are we able to do it bur bom were handicapped by their stylistic appropriately? If we are part of the issue, can constraints and hun by misunderstood we get past feeling defensive and launching intentions. They were ultimately able to a poinr-by-point defense? I recall, many years ago in marital merapy accept these differences. make adjustments without taking or casting inappropriate with my (rhen and present) wife, insisring blame, and create a satisfying, close that my poim of view was much more relationship. It could just as easily have reasonable and valid than hers. It didn't seem to me to be simply a matter of my ended quite sadly. Achieving closeness with Others is nOt feelings; I insisted mar any 12 people ofT the only a wonderful aspect of life's richness, it street would agree with me, as if that should also provides relief from excessive stress and somehow settle it. I wanted objective burnout. Lawyers, however, can unwittingly validation for my views. Things improved undermine close relationships if they bring greacly only when I realized that I didn't live home with them an adversarial turn of with any of my imagined juries and judges, mind, especially the desire to dominate and, thus, they really didn't matter. How can we learn to leave our information and never acknowledge error or intellectual, emotionally distant professional uncertainty. Our intellectual, focused, hard-driving, style in the office? How can we exchange our emotionally distam work style can be highly focused, if not rigid, work style for counterproductive and even resented at one suitable for communicating with the home or in a significant relationship. We people we love? ratchet ourselves down to stay on task and meet our responsibilities, and we are taught life Is Not a Cross-Examination Suppose you have spent the better part of to keep our minds unclouded by emotion in order to do our jobs. Such emotional a hypothecical day dealing with an distance can become excessive, even destructive, far more easily than we realize. Continued on Page 46 When she stopped crying. she explained that she was acruaJly very touched and

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PUBLIC NOTICE APPOINTMENT OF U.S. BANKRUPTCY JUDGE The United States Court of Appeals for the Eighth Circuit seeks applications from all highly qualified candidates for a fourteen-year appointment as United States Bankruptcy Judge for the Eastern and Western Districts of Arkansas. The position is headquartered in Fayetteville, Arkansas. The vacancy will occur on January 1, 2003. The basic jurisdiction of a United States Bankruptcy Judge is specified in Titles 11 and 28, United States Code, and amendments thereto. To be qualified for appointment, an applicant must: (1) Be a member in good standing of the bar of the highest court of at least one state, the District of Columbia, or the commonwealth of Puerto Rico, and a member in good standing of any other bar of which they are members. (2) Have been engaged in the active practice of law for a period of at least five years (some substitutes authorized); (3) Possess, and have a reputation for, integrity and good character; possess, and have demonstrated, a commitment to equal justice under the law; possess, and have demonstrated, outstanding legal ability and competence; be of sound mental and physical health sufficient to perform the essential duties of the office; and indicate by demeanor, character, and personality that the applicant would exhibit judicial temperament if appointed; and (4) Not be related by blood or marriage to a judge of the Eighth Circuit Court of Appeals, a member of the Eighth Circuit Judicial Council, or to a judge of the district court to be served, within the degrees specified in 28 U.s.c. 458, at the time of the initial appointment. A Merit Selection Panel will review all applications and recommend to the United States Court of Appeals for the Eighth Circuit, in confidence, persons considered to be best qualified. Appointment follows an FBI and IRS investigation of the candidate chosen by the court of appeals. The current annual salary is $138,000. Applicants shall be considered without regard to race, color, age, gender, religion, national origin or disability. Application forms may be obtained from the Clerk of the U.S. District Court in Fort Smith and Little Rock, Arkansas; the Clerk of the u.s. Bankruptcy Court in Little Rock, Arkansas; and from the Circuit Executive's Office in St. Louis, Missouri (314-244-2600). Applications should be submitted only by the applicant personally and should indicate the applicant's willingness to serve if selected. Applications should be submitted to Ms. Millie B. Adams, Circuit Executive, 111 South 10th Street, Suite 26.325, St. Louis, Missouri 63102-1116, and must be received by May 30, 2002. The U.S. Courts are equal opportunity employers.


In MClllort.l1ll J.S. Brooks Jr. J.5. Brooks Jr., 87, of EI Dorado, died Thursday, January 31. He graduared from the University of Arkansas Law School in 1937 and practiced law in EI Dorado beginning that year. He was a member of the Union County and American Bar Associations and was a U.S. Magistrate in U.S. District Court, Western District of

Arkansas, EI Dorado Division from 1971 to 1987. He served as a Special Justice ro the Arkansas Supreme Court on three separate

County. "College-educated lawyers were rare" when Mr. Gant entered the profession. according [0 his son, Paul Cant. also a lawyer. Many lawyers "rook some courses

and took a test." He sold eggs for spending money before graduating from the University of Arkansas Law School in Fayetteville. He practiced for 40 years at the Gant and Gam Law Office in downtown Van Buren, was a former Chancery Judge

and a 50 year member of the Arkansas Bar

occasions. As a member of the Arkansas Bar

Association. He was a member of the Judicial ominations Comminec: and the

Association. he served on the American

Committee on the Mentally Disabled.

Citizenship

His career began as a practicing attorney and deputy prosecuting anorney for the

Committee,

the

Group

Insurance Plans Committee and on the Creditors Righcs Comminee.

Mr. Brooks was a member of the EI Dorado City Council for

twO

ternu and

president of the E1 Dorado School Board. He was also president of the EI Dorado Golf and Countty Club and the EI Dorado Kiwanis lub. He was an officer, director and anomey for First Financial Bank, which his father helped organize. Survivors are his wife. Bess Sample

Brooks of EI Dorado; a son, John Samuel Brooks 111 of Hollywood, California; twO daughters, Elizabeth Brooks of Memphis, Tennessee and Meredith Brooks of Fayetteville; and one stepdaughrer. Dr. Susan Mercer of Little Rock.

George P. Collier Jr. George P. Collier Jr., 73, of Germantown. Tennessee, died December 8. He was a member of the Arkansas. Tennessee,

county.

During World War II, he was

appointed an anomey with the War Relocation Authority in Washington. Later serving as a gunnery officer in the U.S. Navy, he retired from the aval Reserve as a lieutenant commander. From 1947 to

1973, Mr. Gant worked as a field attorney for the Veterans Administration.

He was

appointed Chancety Judge for the 15th Judicial District in 1973. In 1976 to 1991, he served as Master-in-Chancery for the

12th Judicial Disrrict, which formerly included the 15th District. "For the last quarter of his life, people JUSt called him Judge Zed. He was oldschool in many ways," his son said. "He believed in helping the down and out. He had a tremendous sense of duty .. _Those who didn't know he was a lawyer just called

him that guy from the Baptist church."

Memphis and Shelby County Bar Associations and was a SpeciaJ Judge for the Shelby County Probare Court. He served

He is survived by his wife, Imogene; a daugher Linda Beth Harwood of Fort Smith; one son, seven grandchildren and 13 great grandchildren.

on the Arkansas Bar Association's Group Insurance Plans Committee and was

Earl Wayne Krug

honored in 2001 for 50 years of service to the Association. Survivors include his wife, atherine S. Collier; three daughters, Catherine Collier Stallings, Emarie Collier Spradlin and Joan Collier Barham, all of Memphis. Tennessee; one son, George P. Collier 111 of Memphis; and six grandchildren. H. Zed Gant H. Zed Gant, 87, orVan Buren, entered inco rest January 13. He was among the first universiry-trained lawyers in Crawford

42 The Arkansas Lalryer VWIIWG짜I<bar ron

Springdale. Mr. Krug is survived by his parents. Frank and Christel Reiner Krug, of Bella Vista; his wife. Jeannie R. Mick Krug; two daughters. Jessica and Christine all of Springdale; and by a brorher, Patrick Krug. of Fort Worth, Texas. Richard S. Paden Richard S. Paden passed away on November 3 at the age of 55. He received his law degree from the University of Missouri-Columbia and was a member of the Arkansas and Baxter County Bar Associations, the Arkansas Trial Lawyers Association and the American Trial Lawyers Association. Mr. Paden worked for the

Attorney General's Office in 1976. urvivors include his wife, Dawn, of Mountain Home; a son, Sean Paden of California; a daughter, icole Paden of California; a brother, Jon Paden and sisterin-law, Marie, of Ohio; a sister, Jill Paden of New Mexico; nieces and nephews.

Judge Charles A. Walls, Jr. Judge Charles A. Walls, Jr. died December 17, 2001. He was a member of the Arkansas Bar Association recognized

with the Distinguished Lawyer Award for 50 years of practice, and serving on the Desk

Book {now Form Book),Maritime Law and Constitutional Reform Committees. He was a Special Justice of the Arkansas Supreme Court and former city anomey for Lonoke. He was appointed Circuit

Chancery Judge for the newly formed 17th Judicial District West.

Judge Walls was a descend"H of an Arkansas pioneer famiy dating back to the Revolutionary War. He served as an officer

Earl Wayne Krug, 41, passed away December 30 at his home in Springdale,

in the U.S. Army and the O.S.S. during World War II and in the Judge Advocare General Corps representing the U.S. Army

Arkansas. He was a pamer in the law firm

in the Italian war criminal trials.

of Harrington, Miller, Neihouse & Krug and City Attorney for the City of Elm

He sat on the Lonoke County Quorum Court and the Lonoke School Board. He

Springs. Mr. Krug was admined to practice

was a member of the Lonoke Baptist

in Arkansas and Oklahoma and belonged to the Arkansas and Oklahoma Bar

Church where he raught Sunday School for

Associations. He was past president of the Comanche County Bar Association. He graduated from the University of Oklahoma

School of Law in 1986, practiced in Oklahoma for 10 years before rdocating to

more than 40 years and was a 32nd degree Mason.


In MCIllori31ll Th< Arkansas Bar Foundation acknowkdg<J with grat<fUl appr<ciation th< r<aipt ofth< following m<moria~ honorarium and scholarship concributions r<aiv<d during til< p<riod ofD<c<mb<r 20, 2001 through March 31, 2002: IN MEMORY OF J. S. BROOKS, JR.

Dennis and Jane Shackleford IN MEMORY OF JUOGE H. ZED GANT

Ledberter, Cogbill, Arnold & Harrison, LLP IN MEMORY OF JAMES MCKENZIE

Donis HamiltonWinslow and Kate Drummond'" Mr. and Mrs. John Gill* Mr. and Mrs. Jack C. Deacon* Judi<h Gray' Don and Leslie Hollingswor<h Jim and Sally Mclarty Ann Dixon Pyle" Barbara Tarkington* Phil and Diane Carroll" Justice Annabelle Clinton Imber" Judge James Moody' Judge John and Marietra Suoud* Dr. Roberr R. Wrighr Judge Susan Webber Wright 路Designated to the Horace H. McKenzie and James H. McKenzie Scholarship Fund, administered by me Arkansas Bar Foundation.

William R. Overeon Inn of Coun. Pulaski Coun ty Dr. Robert R. Wright Judge Susan Webber Wrighr Mr. and Mrs. Paul B. Young *designated to <he Judge Henry Woods Scholarship Fund, administered by <he Arkansas Bar Foundation. IN MEMORY OP JAMES B. SHARP

BIRTHDAY, ANNIVERSARY OR RETIREMENT CELEBRATION? REMEMBER, THE ARKANSAS BAR FOUNDATION... The Arkansas Bar Foundation receives

Phil and Diane Carroll

contributions in honor of individuals on a regular basis. To make a donation,

IN MEMORY OF BONNIE SHAVER

the donor makes <he check payable to

Charles B. Roscopf Judi<h H. Gray

the Arkansas Bar Foundation and notes on the memo line or cover letter the

IN MEMORY OF ROXANNE WILSON

details of the honorarium ("in honor of

Buzz and Cissie May

_ _ _" along with <he address for the honoree). In cum, the Foundation will acknowledge receipt. A letter will

IN HONOR OF THE A.R!<ANSAS BAR AsSOCIATION

be sent co the honoree advising him or

Rebsamen Insurance Foundation

her of the contribution and who gave the donation in his or her honor. Also,

IN HONOR OF JUDGE MARy DAVIES SCOTI FOR HER YEARS OF SERVICE AS A FEDERAL

a letter of thanks along with a receipt for the donation will be mailed to the

BANKRUPTCY JUDGE

donor.

Judge Elsijane Trimble Roy

These contributions co the

Arkansas IN MEMORY OF GORDON REYNOLDS SAYLOR

IN HONOR OF PHIL AND RUTHE KAPLAN

Patti Marks

Mr. and Mrs. Byron M. Eiseman IN MEMORY OF JUDGE HENRY WOODS

H. David and Suzanne Blair* Phil and Diane Carroll Mr. and Mrs. Murray Claycomb Judi<h Gray* Judge Robert and Ann Dawson Jack c. Deacon* Winslow and Katherine Drummond* Judge John and Annis Fogleman Don and Leslie Hollingsworth Justice Annabelle Clinton Imber" Virginia Mitchell路 Judge James Moody' Hoyte and Ann Pyle* Jackson T. Stephens* Judge John and Marietta Stroud

SCHOLARSHIP CONTRIBUTIONS The Arkansas Bar Foundation administers forty (40) named scholarship endowments. The Foundation expresses appreciation co the foHowing donors whose designated gifts CO various scholarship endowments assist law students in Arkansas with their

legal education: Marcin and Betty Gilberc Judith Gray Judge James M. Moody David Solomon Wilson & Associares, PUc.

Foundation

are

tax

deductible as a charitable gift for federal income tax purposes. Honorariums are

Donis B. Hamilton IN MEMORY OF RANDOLPH WARNER, JR.

Bar

listed quarterly in The Arkansas Lawyer and the donor's name will be listed in the annual report of the Foundation which is available in June of each year.

CONTRIBUTIONS MAY BE MAILED TO: ARKANSAS BAR FOUNDATION 400 WEST MARKHAM

LITTLE ROCK, ARKANSAS 72201

For questions or further hifonnation,

call Ann Pyk at til< FoundAtion at (501) 375-4606 or (800) 609-5668.

Vol. 37 No. 2/Spring 2002

The Arkansas la,')'er

43


In Memoriam TRIBUTES IN MEMORY OF JAMES jim McKmzi~ wns truly a knight in shining armor; noble. courageous, faithful lJflliallt, and compassionate. H~ has b~en a bkssing to hisfamily. community. our proftssion. and the clients he served so well. jim showed us how to live, love. firce ndvmity. and kttp tht jaith. If we art ,uise, we will thank Godfor him and learn fom his lift. Wendell Gtiffen EVf1l though he was younger in years, jim McKenzie wns always a role modelfor m~. H~ did with eas~ what I strain~d to do accomplish. H~ lIS a great golfer, a t;"at lawyer, a great husband and fizther, and ~veryon~'s b~st friends. I will sorely miss him. - U.S. District Court Judge James M. Moody "\\'I'to should wish for every young Imuyer Ibn! he or

she could have a Jim McKenzie in their lift. A prince among lIS, he exemplified what aIL lawyers should seek to be in their proftsSional and pmonal lives. we lolJ(d him lUell - rok motkl katkr, but most ofa14 fiend. " - Sandra Wilson Cherry ... That Jim McKenzie honored our profession with his presence should be a point ofpride for all ofus. That Ul( now adopt his standards a/honor. tkcency and friendship should bt his kgary." - John C. Evererr "All aspects of Jim McKenzie's lift were so

completely distinguished by excel/mce that once, in nominating him for a bar association award. I tkscribed Jim as "knight in shining annoT" lind thllt is precisely how I wilL always remember him. OfJim's many talentJ. perhaps the greatest WIlS his unique ability to !Lad by example and, in Ming so, impire those around him to wmlt to be more like him. All ofus fortunt1le mough to hav~ bun his

frimd will missJim grwry. " - Tom Ray

"Charaetn; integriry, acellence in all thingr. qui~t demeanor, spiritual. studied, resp~ctfu/, courteous,

afriend, "ptcially. a frimd -Jorll" H. McKmzie bl~sud us by his ~xample. jim was my inspirational model for the professional and ptT!onal goals voiced by Vince Foster in his law school address. And paraphrasing Vince, jim would wish for all oflIS. a Betty.'~ Mac Glover

'Jim McKmzi( was a picture book lau;yer and gentlemaN ns was his &tddy before him. His d~nth is a t~rrible loss to hisftmily. hisfiends, and to tb~ kgal pro/mioll. "- Bill Wilson

jim McKenzj~s~t high standardsfor us toftllow in the arens of family, faith. profession and community. He was a genuine gentleman and a sup"b frimd - fred U=ry

H. MCKENZIE

Jim McKenzie. He will b~ sorely missed, persoJll/11y and professionally - Martin Gilbert I will neverforget jim McKenzie walking into my office at the Pulnski County Courthouse before the Bar Association's annual meeting in june, /99J. At that meeting, jim would assume the presidency of the Association and, not surprisingly. had aLready decided on th~ /Imne of the J992 joim meeting ofthe Arkan.sa.s Bar Association and the ArkamllS judicial Cou11S~/: Th~ Promotion of Ethics in th~ l1gal Profession. And, when he nsk~d me to serve lIS program chairfor the joint m~eting, how could I refilS~ such a kind and honorable ,,"m? &CIlUs~ ofjim's commitmmt and vision, his y~ar lIS presid~1lt of the Arkansas Bar Association challeng~d all Oftts, the &nch and th~ Bar, to focus on our ethical accoumability. I join th~ many friends and colleagues who are gratefid for th~ honor and integrity brought to Ollr profession by jim McKenzi~. - Juseice Annabelle Climon Imber

He was an outstlmding InIUJ~r. He brought honor to hisfamily and his profession. It WIIS myprivilege to know him and to call him Frimd I tried clISes with him, against him, and as a judge. H~ was a wllrrior bllt a mlln who Iov~d p~ople. After a long do)路 in court, he would simply smile lind say"! will see you in the morning." just as Jim preparedfor his cases. h~ prepared for the filtur~, Pridoy he didn't di(, I will s~~ bim soon, so Jim. I simply say "nt see you in th~ morning. .. - W. H. "Dub"

As my IBw parm" for 30 y~ars Jim hm been a fiiend. a mentor and example for m~ to follow, both professionally and p~rsollally. His wisdom, understanding and imegrity eamed him the respect of ali with whom he d~alt. He was truly a

"Lnwy"; Ln,vy"': who wns highly rtgardtd by both the Bench and Bar. Our Profession and Community will miss his leadership and cOtlns~1 greatly - Glenn Vasser

Arnold, Chief Justice Arkansas Supreme Coure

John E Stroud, Jr., ChiefJustice Arkansas Court

I made an effort to come up with som~thing appropriate. but after Martin Gilbert's comments at tb~ urviu and the tvonder/ttl turnout for the fimeral ofjim and Betty's friends. anything that I say would b~ wholly inadequate, but as I ptlttS~ at this sad time to ufkct on the good works ofmy friend, jim McKenzie, I believ~ his love and caring concern fOr oth~rs would cause him to say

of Appeals

with Ilpliftingjoy:

"Jim McKmzje was one ofthefinest tmvyers I have ron known, but more importantly. he WIlS one of the finest men Tbe ArkllllsllS Bar Association hIlS bad many aceLlent presidents, but I think be stood ju.st a little taller tban the rest of UJ. jim's emhusiasm and I~adership will be sorely missed -

jim McK~nzje and I were like brothers, having grown up tog~ther in Prescott during th~ 1940's and J"O} and remaining close over the ensuing y~ars. In addition to being II rremuredfriend-lIS he was to me and many others - jim WIlS th~ lawyer that ~ach and every one oftts should aspire to be. jim was proud that he W/IS a !4wyer, like his

jat"'r and grandjath" bifort hilll. He held "lawyering" in high esteem, and he brought great credit to our profession. He caused othtT! /0 mise th~ir opinions of lnwym in gen~raL. U1wym everywhere - and particulnrly w~ Arkansas

Ictlvym - how btlltJi{{eJgrwly from tht lift 0/

If I should ever leave you whom I love To go along the Silent Way, grieve not, Nor Speak co me with tcars,

Bur laugh and 'alk

or me as if I were beside you there. Excerpt from poem "To Those I Love", - lsla Paschal Richardson for Dennis Shackleford


In MCnloriJnl TRIBUTES IN MEMORY OF JUDGE HENRY WOODS «Henry Woods" story about a time the Judge assisted her or him. No one loved the annual bar meeting more than Henry Woods. He missed only a handful during his sixty-plus years at the bar - and his presence there became a foregone conclusion. He was an institution unto himself. The disenfranchised always had an advocate in Henry Woods. A signal example is his leadership role in the major civil rights battles of the 50s, when it was nOt only unpopular, but physically dangerous, to oppose the forces of racism

and hate. In 1989, as a federal judge, he UEvery man owes some of his rime to the

upbuilding of the profession to which he belongs," - Theodore Roosevelt If any Arkansas lawyer ever honored this charge, it was Henry Woods. He was

the law and to the Arkansas Bar Association, serving with distinction as its presidem for the 1972-73 bar year. Thar devoted

to

struck down Amendment 44 to the Arkansas Constitution - the so-called "Interposition Amendment" sponsored by segregationists in 1958.

In the 1970s, when the &jual Rights Amendment was being hotly debated, prominent male supporters were often hard to find. Henry Woods, however, again stepped front and center. He wrote and spoke in favor of the ERA; and once

debated Phyllis SchlaAy, a well-known

year, the Bar had one of the most ambitious

national opponenr of the ERA. before the

legislative programs in irs history.

Arkansas General Assembly.

One of the most important proposals

provided for the funding of a first-class law library for the law school in Litde Rock. In hindsight, it might seem that his legislation should have sailed through the General Assembly, but at that time, it took all hands and the cook to secure its passage. Henry Woods, as Bar President, pounded the

marble at the Stare Capitol day after day umil this pet project of his passed both the House and the Senate. He hand-carried the bill to then-Governor Dale Bumpers Without question. for signamre.

establishing the library fund played a critical pan in the success of this fine law school. Over the years, Judge Woods was ever available as a speaker and moderator for Bar programs; and, despite an extremely busy trial practice, then a heavy court docket, he always seemed to find time [Q counsel young lawyers. He relished instructing neophytes in the art of trial practice. There is hardly a trial lawyer in Arkansas who doesn't have at least one

He was a

stalwart in the cause of women's rights, and a great friend to women in the law. "You have no enemies, you say. AJas, my friend, the boast is poor. Those that mingle in the fray That the brave endure, Must have made foes. If you have none, Small is the work mat you have done. You've smote no traitor on the hip; You've dashed no cup from perjured lip. You've never changed a wrong to right You, my friend, have been a coward in me fight."

- Author Unknown Henry Woods was, in fine, a champion

in the fight. By Beth Deere and Bill Wilson

"'There were giants in the land in those days."

Hmry WOod!- was a giant in the courtroom as a trial Inwyer. H, was a giant on th, b"uh as a judge. He was conversant with the philosophers ofancient Grtece. the legal scholars ofancient Rom' and th, Common Law ofEnglnnd and h"progroy. A stlldent ofhistory, h, was k,roly aware and sensitive to the cause and the purpose of the American &volution and the central importane' ofth, InngUdg' in th, Prtambk to th, COnstitlitiOIl ofth, Ulliud Statts: "We the People of the United States in order to form a more perfect union establish justice ..."

Henry believed that justice was what the United Sttltes ofAmerica was aI/about. He understood that the purpose of the law was justic' and that th, qUdlity ofjustie' detronill" th, qllAlity ofth, so<i,ty ill which lilt liv,. It was Hrorys pit to b, a Inwya alld a scholnr of the low. He is now a legend leaving an lIlIJllrpasstd kgal kgary ill th, history of Ollr stllte. - Governor Sidney S. McMath

III jlldg' Hrory Wood, death ollr stalt alld ollr prof"'ioll mlly loS/ a giant. His robllS/lov, of th, Inw, and pmetiu of it, fOllollltd by his remarkable tenure on the federal bench, ""mpliji'd fOr ail of lIS th, tro, mtallillg of prof"'i01U1lism. Sandra Wilson Cherry Arkansas Bar Association President

On, ofth, highlights ofmy prof"'i01U11 lift was "suffering" the aCCUSlltWn in the press of b'illg a crollY of jndg' Hrory Woodr. Th, "accusation" ctlme upon my selection as a United SlAttS Magistralt jlldg' and my tlSSociation with Judge WOod!- was suggestedas the pn·mary reason that I was "katd (Tht p"'" was eom:a in their suggestion!) ~bsters Dictionary tkfines a crony as an "intimate companion" and I can snftly SAy that O,It ofth, grtat bkssings in my lift was hting a crollY ofjndg' Woodr. jlldg' Woods' =narkabk ust fOr lift was COlllAgiOUS. His IIl1iqllt! bknd of illltika alld common sense is rarely found in people. The character trait which I most admired in him was that ht lrtaud ailpropk with 'qUdI rnpm. His door was always open fOr a visit and some encollmgffl1£flt. regardless ofthe visitors position or status. Obviously, he was a mentor and model to me in discharging judicial responsibilities. bllt mort than that I klltw him as a loyal alld rocollmgillgfrimd U.S. Magistrate Judge David Young

Vol. 37 No. 2/Spring 2002

The Arkansas UI\')'er

45


Continued from page 38

We need to stop and ask ourselves what exactly we have to lose if we accept what we are being told as essentially valid, relevant emotional information. Perhaps it is important and worth suspending defensiveness to hear. It's easy to get defensive, but once we do, we essentially shut down emotionally, interfering with any genuine understanding. -o~ ,

I

46 TI,e Arkansas lawyer

'

vwvw ar14Jar ':XJfT1

opponent's expert witness. Looking at how you do mis provides one of the starker cOntrasts berween the discipline of doubt, which you need for your work. and the ability to suspend judgmenr, which you need to nurture your relationships. The expert's views are an "admissible" form of subjective opinion in the legal world. Indeed, it is one of me few occasions where opinion means much at all, and even then the opinion is couched as factually and objectively as possible. There are specific rules that govern the entire encoumer. So on this hypothetical day, you have thus asked no open-ended quescions. nor any questions to which you did nor already know the answer. You asked nothing unless you had a statement, document, or incontrovertible fact with which to discredit the expert if you didn't gee the specifically desired answer. You extracted concessions to your poinr of view; jumped on any inconsistencies or contradictions; and anacked limits inherenr in the person's experience, qualifications, preparation, or bias. You filtered what you were told through a well-considered objective analysis of what was normal or reasonable, given the case's particular objectives. You were dogged and persistenr. You were great! You could also be a bit scary for anyone else venturing into your line of fire with mere personal subjectivity, such as a spouse, child, or loved one who may wam co talk with you now that the day is finished. We can easily develop limitations in OUf ability co listen uncritically and em pathetically to the loosely wrapped personal opinions, feelings, and musings of the regular people we find when we go home. This is particularly so if we manage co discern. in our Fatigued state, that someone seems co have some kind of problem with...us. Ar this point, lisrening openly becomes especially challenging. We need to stop and ask ourselves what exactly we have to lose if we accept what we are being told as essentially valid, relevam emotional information. Perhaps it is important and worth suspending defensiveness to hear. It's easy to get defensive. bur once we do. we essentially shut down emotionally, interfering with any genuine understanding.

Do You Usten? Listening in order to understand is much more subjective and narrative in oriemation than the more customary listening we do to get factual information and sort it imo useful. abstract categories. Plausibility, the full developmenr of the particulars of personal experience in the story, individual meaning. and inrerpretation are the appropriate considerations in a personal conversation. In the back of our minds, though, we may wonder if this is perhaps, ah ... fluff. In our more honest moments. we may realize that personal listening is perhaps one of the most neglected parts of our lives. We forger ro lisren fully to our children and others whom we love and, thus. fail to let them in. Unless we listen, they can become wizened in our presence, or mere caricatures of themselves. We may know the facts. but we won't know them. People who have grasped this and changed their listening behavior reporr astonishment at the new richness and texture of their relationships. They grow quieter, less critical. and more comprehending. They come to know and appreciate more deeply those they had thoughr they already knew. They speak of how much more love and how much less stress there is in their lives. When it is your rum in a personal conversation. do you allow your true self to be known. or have you been trained not to speak personally? You might do benee seeing yourself as telling a story, your story, rather than framing an argument. Perhaps you will find that speaking subjectively doesn't really diminish your point. Like hearsay rules. your personal feelings are nor being offered to prove the objective truth of an assertion so much as for an indication of your state of mind. This assumes that your state of mind. your emotional well-being, is a relevant matter of consequence to the other person in a close personal relationship. If it isn't, why bother? For many lawyers, it takes a paradigmatic leap to reaJize that feelings 3re valid even though "merely" subjective, and perhaps inconvenient, and that they really do not require justification or defense. That realization alone will change the tone of your conversation. Lawyers have the Continued on page 47


Continued from page 46 imeUeccual prowess and stam.ina to talk endJessly about aJl manner of things in personal relationships. except feelings. We should also have enough good sense to perceive, even in an utterly mystified way. that we somehow are not really communicating meaningfully to our parmers, or perhaps even ro ourselves.

Paying the Price

Every individual should be considered the world's

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or her own point of view, thoughts, beliefs, and

The problem is not just legal training. We live in a culture where long-standing feelings. In a personal auchoritarian. hierarchical styles of parenting and teaching give us few models discussion, this for empathizing and expressing our thoughtS and feelings subjectively. Perhaps, like many others, you gOt the idea from information is various people you have encountered since birth that anger, fear, sadness, uncertainty. indispensable. But we weakness, and orner messy or inconvenient feelings were undesirable and unacceptable. may have difficulty Perhaps you long ago sacrificed concern with that level of personal self in order to respecting and seeking to please others or meet some prescribed agenda. understand it. Every individual should be considered the world's foremost authority on hjs or her own point of view, thoughts. beliefs, and feelings. In a personal discussion, this information is indispensable. But we may have difficulty respecting and seeking to understand it. It may seem safer to intellectualize very personal matters and reframe the discussion into how things "should" be; what most people do; what's normal, reasonable, or legally or morally right. mystery to be experienced, accepted, As with any other refuge, we pay a price grieved, and passed through. Keeping it all when it comes to our personal relatjonships. abstract and conceptual is one way to avoid Afrer many years of such habits, we are getting roo personally involved. unable to feel. lisren, or speak subjectively But if you wish to be more intimately when appropriate. All of these skills must be connected and supported in a close relearned. Ir may seem quire risky and relationship, this tendency to remain uninviring ro get roo personal and abstract and removed is an obvious barrier. subjective. pan.icularly if we do not trust the One thing that can make it easier to respect validity of our own feelings. both your own and your loved one's Even if the feelings in question are subjective world is to be clear about how someone else's, we may find ourselves you feel, what you value, and what you preferring to go immedjately to a practical want. You will find the rewards arc more stance. We may prefer to somehow solve the than worth the effort. situation and advise upon it. rather than first personally embrace it and provide Standis" McCleary was an attorneyfor 16 empathy. We may prefer to see personal years before earning a Pb.D. in suffering as nearly always an avoidable psyc"ou.gy. He is a licensed psychologist in problem, rather than something of a private practice i" Portland, Oregon.

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The Arkansas Lawyer Spring 2002