VOL.38_NO. 2_SPRING 2003

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PUBLISHER

Arkansas Bar Associatioll Phone: (SOl) 375-4606 Fax: (SOl) 375-4901 Homepage: www.arkbar.com E-Mail: aconaway@arkbar.com

The Arkansas

awer

EDITOR Allllt'

Conaway

GRAPHIC DESIGN SRrQ umdis

EDITORIAL BOARD Stuart P. Miller, Chair Judge Wiley A. Branton, Jr. O. Milton Fine II Morton Gitelman J. Leon Holmes dlristopher Travis Brian Anthony Vandiver David H. Williams Jacqueline S. Wright

Vol. 38. NO.2

features

OFFICERS President H. MUlTay Claycomb

Board of Governors Chair

8

James D. Sprott

Treading the Murky Waters of Arkansas Trade Secret Protection

President-Elect Thomas A. Daily Immediate Past President Sandra Wilson Cherry Secretary-Treasurer William A. Martin

Alan Crone

Parliamentarian Jeannette Denham Young Lawyers Section Chair Cindy Thyer Executive Director Don Hollingsworth Associate Executive Director Judith Gray

15 The Intersection of Intellectual Property and Franchising Law Patrick W. McAlpine

BOARD OF COVERNORS M. Stephen Bingham Anthony W. Black Judge Wiley A. Branton,. Jr. F. Thomas Curry Elizabeth Danielson Boyce R. Davis Lance B. Gamer Dave Wisdom Harrod Robert "Skip" Henry Gwendolyn D. Hodge Jim L. Julian Philip E. Kaplan Sean T. Keith Marie-Bemarde Miller Chalk S. Mitchell W. Frank Morledge Donna C. Pettus Terry M. Poynte.r James M. Simpson,. Jr. Eddie H. Walker, Jr. Robert E. Young

llAlSON MEMBERS Judge Ted Capeheart Don Hollingsworth Jack McNulty

Steve T. Shults Teresa M. Wmeland Carolyn B. Witherspoon

Thr A,kan'ws unuyn (USPS 546-040) is published quarterly by the Arkansas Bar Association. Periodicals postage paid at lillIe Rock. Arkansas. POSTMASTER: send addll'SS changes to Thf ArkAnslU Lllwyer. 400 West Markham, Little Rod:. Arkansas 72201. Subscription price to non-members of the Arkansas Bar Association $25.00 per year. Any opinion expressed herein is that of the author. and not occcssarily thlll of the Arkansas Bar Association or The A,kAns",s Lawye,. Contributions to Thr A,hllsas Lawyer are welcome and should be sent in two copies to EDITOR. The Ark,mslU lAwyer. 400 W'-'$t Markham. Uttle Rock, Arkansas 72201. All inquiries regarding ad ....ertising should be sent to Editor, Tht Ark,mSlls lAwyer; at the abo....e address. Copyright 2003, Arkansas Bar Association. All

rights reserved.

20 How Bankruptcy Can Affect a Client's Intellectual Property Rights Brent Capehart

general Book Review of The Scrivener: A Primer on Legal Writing

38

Beth Deere

Your Board of Governors Anne Conaway Contents Continued on Page 2

28

The Arkansas

awer Vol. 38. o. 2

in this issue CLE Calendar

29

Judicial Advisory Opinions

30

Professionalism Task Force Report

31

Lawyer Disciplinary Actions

32

Sustaining Members

39

In Memoriam

40

Arkansas Bar Foundation Memorials and Honorariums

43

Classified Advertising/Ad Index

44

CED

1m

columns President's Report

3

Murray Claycomb

Executive Director's Report

5

Don Hollingsworth

Arkansas Bar Association

400 W. Ma.rkham Little Rock, Arkansas 72201

HOUSE OF DELEGATES Delegate District I-SE: Ray Allen Goodwin Delegate District 2-SE: Karharine C. Wilson Delegate District 3-SE: Paul D. Waddell, Dennis Zolper, Jeff Puryear Delegate District 4-5E: Bill E. Bracey. Jr. Delegate District 5-5E: Kent J. Rubens Delegate District 6-5E: ChristOpher M. Morledge Delegate District 7-5E: Buck Gibson Delegate District 8-SE: Howard L. Martin Delegate District 9-5E: Jim Pat Flowers Delegate District 10-SE: David L. Sims, Anthony A.Hilliard Delegate District 11-5E: Richard L. Roper Delegate District 12-SE: James A. Hamilton Delegate District 13-SE: Brian H. Ratcliff, Robin J. Carroll

Delegate District 14·SE: Christie Adams, Matthew Kimmel

Delegate District 15-SE: Todd M. Turner, Bryan T. McKinney Delegate District 16-SE: John T. Vines, Janie M. Evins Delegate District 11-SE: James Ralph Jackson Delegate District I-NW: Hardy W. Croxton, Jr., George R. Spe:nce, Edwin . McClurt, Lisa L. Kelley Delegate District 2-NW: Shannon L. Fam, Raymond L. iblock, Steven S. Uga, TIm Snively, Mauhcw R. Durrcu, Chris R. Reed. April M. Rye, Crisli Beaumonl, David J. Whil'2kcr, Michael J. Hodson Delegate District 3-NW: Shannon L. 81m, TImmhy C. Sharum, Niki T. Cung, Jason A. Manina. James O. Cox, Ben H. Shipley Delegate District 4·NW: Daniel B. Thrailkill Delegate District 5·NW: SIC'o'e B. Davis Delegate District 6·NW: David L. Eddy, John T. TalUm II Delegate District 1·NW: Danny M. Rasmussen, Rhonda K. Wood Delegate District 8-NW: Ted Sanders Delegate District I-e: Charles L. Schlumberger, Don K. Barnes, Elizabeth A. Thomas Smilh, Harry A. Light, Melva J. Harmon, John C. Wade, Jeff Broadwater, Marcella J. Taylor, Reed R. Edwards, M. Stephen Bingham, John C. Wyvill, Callsley Edwards, Brad Hendricks, David w. S,erling. Patrick Harris, Brenda N. Stallings, Mark H. Allison, David Raupp, Rick Ramsay. Patrick D. Wilson, Valerie Kelly, Gregory L. Crow, William C. Mann, Lacy Kennedy. Harold J. Evans, Colette D. Honor:lble, C. Tad Bohannon, Jerry Larkowski, Amy Lee Stewart, Danyelle J. Walker Law Student Representatives: Man Lindsey, University of Arkansas School of Law; Joel G. Hargis, UALR William H. Bowen School of Law

2 n,e Arkansas Lawyer

www.arkbar.com

Prcsidcnt's Rcport

What Has Happened?

by Murray Claycomb Already the Annual Meering and the end of the Bar Association year will be here changing of the guard. soon, along with

me

What has transpired during this exceedingly active and busy year? What has your Association accomplished? How has Bar profession benefitted? Here is a brief sum路 mary which is prepared at the risk of overlooking some very valuable and worthy efforts of so many members of the Arkansas Bar Association. My apologies to those who have worked on any projects that have been overlooked. Due to limited space in this anicle. only a few of the projects can be highlighted.

The most visib.le, if cyberspace is visible, thanks especially to Price Marshall, Tom Daily, and Don Hollingsworth, is Arkansas VersusLaw. After I II.l years of planning. study, negotiating, and testing by the Task Force on Future Internet Presence, Arkansas VersusLaw is now on our website at www.arkbar.com.Itis the special Arkansas and nationwide legaJ research resource available only to Association members at no extra cose. This resource can save members and law firms significant expense for legal research, a vitaJ requirement for the law practice. More information about Arkansas Versus Law is provided in Don Hollingsworm's column in this issue of Th~ Arkansas lAwy<T. The Committee on ProfessionaJ Ethics has been busy doing an in-depth srudy of the revisions to the Model Rules of ProfessionaJ Responsibility recently adopced by the American Bar Association. My thanks co John Lile, Chair, and the members of his commirree, with a speciaJ manks co W. A. Marrin, Stark Ligon, and Howard Brill for their extra efforts. When such amendments are made by the American Bar Association from time to time, the Arkansas Bar Association reviews these changes and decides whether the changes are appropriate for Arkansas as written or as we modify

me

them. The approved changes are submitted to me House of Delegates, and if approved, then are sent to the Arkansas Supreme Court for its consideration. The Arkansas Supreme Court will determine if those changes, or a portion of them, should be adopted. The Committee report wil1 be presented to the House of Delegates on June 14,2003.

2003 is a Legislarure Year. A grear deal of time and effort has gone into review of all the bills introduced in the Legislature by the Bar Association Legislation Committee.

The Chair of this Committee, Charles Schlumberger, has done an excellent job, as have the other members of the commictee: Tom Daily, Boyce Davis, Bill Haughr, Dustin McDaniel, Donna Pectus, Cindy Thyer, and Mike Wilson. As Association Presidenr, I aJso serve on the Legislation Commirree, and I can personally testify to the enormous amount of time and effore expended by the commirree. Jack McNulty has served well as the Bar Association's fulltime lobbyist. Various sections and other committees have assisted by studying cerrain bills referred to them and then making recommendations to the Legislation Commicree.

Although this column is written in midMarch while the GeneraJ Assembly is still in session, I can report that our Association, through the Legislation Committee and the help of many of you, have monitored hundreds of bills which impacr the legal system and legaJ profession, including opposing or supporting specific bills. More specific information on our efforts will be available after the session, and members are welcome ro contact me or other members of the Legislation Committee at any time.

The Judicial Article Implementation Task Force has cominued to work on legislation to implement Amendment 80.

Through the efforts of Professor John Watkins and task force members, a 386-

It is risky to make predictions in a column written almost two months before its publication, but our Membership Development Committee, so ably chaired by Mark Hodge, will lead us in breaking last year's membership record of 4633.

page technical corrections bill was prepared for consideration by the Legislature.

The Professional Practicum proposal that would require new lawyers to take a speciaJ program on professionaJism has been submitted ro the Supreme Court. The program was produced by our Arkansas Professional Practicum Committee, chaired by Brian Rosenthal.

The Association's Judicial Council Liaison Committee, that interacts with the Arkansas Judicial Council, undertook a study at the suggestion of some members of the Judicial Council. The purpose was to set up a mechanism co respond on behalf of any judge co unfair cricicism that the judge is unable to answer. The object is to increase the public's understanding and to uphold

Vol. 38 No. 2/Spring 2003

President's Report Continued on page 37 TI,e Arbnsas Lawyer

3

YOU PUT A LOT OF UMMPH IN TOY 0 U R W 0 R 1<.

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Executive Director's Report

More on Arkansas VersusLaw . by Don Hollingsworth email: dhollingsworth@arkbar.com have to srop and pinch myself when reflecting on what your volunreer leaders, including the members of the Task Force 011 Future Internet Presence, Board of Governors and House of Delegates. have accomplished through Arkansas VersusLaw. As S[atc and metropolitan bar associations around the United Stares go, rhe Arkansas Bar Association is onc of the smallest and is voluntary (most sure bar associations are mandatOry.) Yet we now have an online legal library for our members, including an excellent search engine. Initial feedback from many of you confirm what a tremendous accomplishment this is for our emire membership.

(Firms not yet using Arkansas VersusLaw have seen their COStS for online legal research reduced because of Arkansas VersusLaw, and members in governmem agencies which provide online legal research now have free online research outside the office.)

Free Customer Service. This service from the experts at VersusLaw is available at 1-888-377 -8752 (88- VERS USLAW).

Customer service hours are Monday Friday 9:00 a.m. - 7:00 p.m., and Saturday from noon until 7:00 p.m. These experts will answer your questions about Arkansas Versus Law as well as its content.

If you experience problems which cusromer service cannot solve, please contact Rando Hicks at this office: (50 I) 375-4606, (800) 609-5668 or rhicks@arkbar.com.

Help. At the top right of each pagel screen in Arkansas VersusLaw, there is a red "help" link. This takes you to complete information on researching VersusLaw, and they have a printable version of the entire research manual.

Quick Reference Guide. This Guide is available on the second page of Arkansas Versus Law. Further, you may contact this office for a laminated version of the Quick

Reference Guide which is handy for keeping by your computer.

Training. The next training on Arkansas Versus Law will be provided during the Annual Meeting in June. \Vle plan to run the training sessions almost continuously during June II. 12 and 13. Experrs ftom VersusL1w will conduct the training.

Save As / Print. A neat feature is the ease with which one may copy/paste text from a search [Q a workable document. Simply click 011 the save as / print link at the rop of the page. On the "search results" page which lists the different documents found for your specific search, this link is at the top right of the page. On the "dQcument view" page Qn which the entire document is presented, the link is on the left top Qf the page.

E-mailing the research results or document. If you wish ro e-mail the search results page Qr a specific document, click the "File" buttQn on your roQI bar, and then click "send". This gives YQU the option tQ select the e-mail function, and once you click 011 it, your e-mail program will appear with the document in it. [Not sure this is available on all software programs. It is on Microsoft.]

Password system. One may change her/his password on our website. If YQU experience difficulcy in doing so, please conmcr Rando Hicks.

Supreme Court Number. It is essential to remember rhat rhere is nQt a dash (-) in Supreme Court Numbers. If you enter a Supreme Courr Number with a dash or any other extraneous symbols, your IQg in attempt will fail.

Terms and Conditions. At the bottom Qf the Arkansas VersusLaw page, there is a link to rhe tcrms and conditions for utilizing the online library. As an Arkansas Bar A'\socia[iQn member. YQU ignore the condition about payment of a monthly fee since

your fee has been paid by your Association.

Member Directory. This is the Qnly other password-prQtected parr Qf our website. Members may access up-to-dare contact information on individual members as well as see which attorneys in a specific ciry in Arkansas or another state are Associarion members. The directory includes a ~ mail link fQr individual members, thereby enabling one to click on that individual and send him/her an immediate e-mail using your computer's e-mail software.

We welcome any and all quesrions abour Arkansas Versus Law and other fearures on our website.

ARKANSAS

VERSUSLAW TRAINING During the Annual Meering this June in Hot Springs, there will be training sessions throughQut the days of June 11 tho 12th and 13th.

ETHICS ADVISORY OPINION

2003-01

The Professional Ethics Committee of the Arkansas Bar Association has issued an Opinion dealing with compensarion from a trust company to an atrorney for trust services provided to a cliem.

The Qpinion is available at w,vw.arkbar.com, [click PrQfessional ResQurces on the left side menu bar, and then dick Ethics InformatiQn.]

vol. 38 No. 2/Spring 2003

TI,e Arkansas Lawyer

5

The POWER of Arkansas VersusLaw provides a unique online library oflegal materials that is only available as a benefit through your membership in the Arkansas Bar Association. This specialized material includes Arkansas Statutes, Judicial Opinions, Attorney General Opinions, Court Rules, and recent decisions from the U.S. District Courts for the Eastern and Western Districts of Arkansas. Arkansas Judicial Opinions date from 1900. Attorney General Opinions currently go back 1973

to

1991 and will soon include all opinions from

to

the present. Your Association and VersusLaw will be expanding the Arkansas legal products during the remainder of 2003.

Arkansas Versus Law also includes decisions from the U.S. Supreme Court, federal circuits, all state appellate courts, state statutes and a growing number of U.S. District Courts.

Free customer service is available to Association members at 1-888-377-8752 (88-VERSUSLAW). Cuscomer service hours are M-F. 9:00am. - 7p.m .â&#x20AC;˘ and Saturday noon to 7:00 p.m. Customer service representatives will answer your questions about this online research producr.

Arkansas VersusLaw is a joint product ofVerslisLaw and the Arkansas Bar Association, and it is a trade name used with the permission of VersusLaw.

Practice Handbooks Have it Vimr Wayl Cwtomize Ytmr Library ofAssociation Handbooks to Suit }Our Personal Style Select from among nri.uI offerings including the Arkansas Form Book, Domestic Relations, Debtor/Creditor, Probate Law, Handling Appeals or Real Estate Tide Standards in Arkansas.

OR

Legislative Advocacy Network Association Members are encouraged to Participate in this Electronic Network by clicking on Legislative Advocacy Network at www.arkbar.com.

Parricipants will receive AJerts on Pending

Bills which affect the Legal System.

Choose the Arkansas Form Book, Debtor/Creditor or Probate Law Handbooks in word processing formar.

OR Opt for rhe simplicity of a CD ROM cOlHaining anyone or any combination of the following: Arkansas Form Book, Debtor/Creditor, Probate Law, Handling Appeals in Arkansas or Real Estate Title Standards in Arkansas. The handbooks are also available in the Arkansas Secondary Law Menu from LexisNexisTM at www.lexis.com.

Online Member Directory www.arkbar.com Access RestriC[ed to Association Members Most Up-to-date and Accurate Comacr

To order call 501-375-4606 or 800-609-5668, email rhicks@arkbar.com, or visit www.arkbar.com for further information.

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To purchase mailing labels of members at a discount, caU (50 I) 375-4606.

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vol. 38 No. 2/Spring 2003

TI1C

Arbnsas I.lI\rycr

7

~,.-.--:rREADING

THE MURK OF ARKANSAS TRAD

PR -

-

. ''}

M

any businesses are concerned with proteding that information which they consider proprietary.

This information could include customer lists, pricing structures, technological or industrial processes, recipes or formulas, plans for infiltrating certain markets, and many other types of information developed by businesses for the purpose of competing in the marketplace. But what steps can a business take to proted this information, especially from its dissemination by exemployees? In order to answer this question, attorneys need a firm understanding of the Arkansas Trade Secrets Act, A.c.A. §§ 475-601, et seq., and the cases construing and applying the Ad. Unfortunately, the case law does not always seem entirely consistent, which can make it difficult to provide sure guidance to a client.

The Act The Arkansas Trade Secrets Act became effective in 1981 and incorporates many, but not all, of the provisions of the Uniform Trade Secrets Act. The heart of the Ad is found in the definitions sedion, A.c.A. 475-601. This sedion provides that misappropriation means: (A) Acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired by improper means; or (B) Disclosure or use of a trade secret of another without express or implied consent by a person who: (i) Used improper means to acquire knowledge of the trade secret; or (ii) At the time of disclosure or use, knew or had reason to know

that his knowledge of the trade secret was: (a) Derived from or through a person who had utilized improper means to acquire it; (b) Acquired under circumstances giving rise to a duty to maintain its secrecy or limit its use; or (c) Derived from or through a person who owed a duty to the person seeking relief to maintain its secrecy or limit its use; or (iii) Before a material change of his position, knew or had reason to

know that it was a trade secret and that knowledge of it had been acquired by accident or mistake.

A.C.A. 4-75-601(2). Ex-employees would fall under the category of those who, without permission. disclose a trade secret with knowledge that they acquired that secret under circumstances placing them under a duty of non-disclosure.

The Ad defines a trade secret as "information, including a formula, pattern, compilation, program, device, method, technique, or process, that: (A) Derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and (B) Is the subjed of efforts that are reasonable under the circumstances to maintain its secrecy." A.c.A. 4-75-601(4). Thus, under the Act. to qualify as a trade secret, the information must have independent economic value, it must be somewhat difficult to compile or discover, and its owner must have taken reasonable measures to maintain its secrecy.

The Act and Case law Practitioners cannot, however, rely on just the Act when counseling clients on protecting their trade secrets. The Arkansas Supreme Court has expanded on the requirements that must be met for information to qualify as a trade secret. For an excellent and far more in-depth treatment of this issue, see Brandon B. Cate, Case Note, Sa foro & Associates, Inc. " Porocel Corp.: The Failure of the Uniform Trade Secrets Act to Clarify the Doubtful and Confused Status of Common Law Trade Secret Principles, 53 ARK. l. REV. 687 (2000).

In Safora & Associates, Inc. " Porace/, 337 Ark. 553, 991 S.W.2d 117 (1999) the Arkansas Supreme Court adopted six factors

Awn G. Crolle is nil attorney in Memphis, unn. He is tbe Managing Member of Crone 6- Mason, PLC. Mr. Crone's practice is devoted to complex commercial, business and employmem-relaud Iiligalion.

Vol. 38 No. 21Spring 2003

n,e Arkansas lawyer

9

from the Restatement (First) of Torts ยง 757, cmt. b (1939)' See afso Waf-Mart Stores, fnc. v. PO. Market, fnc., 347 Ark. 651, 66 5.W3d 620, 630 (2002). These factors are as follows: (1) [T]he extent to which the information is known outside the business; (2) the extent to which the information is known by employees and others involved in the business; (3) the extent of measures taken ... to guard the secrecy of the information; (4) the value of the information to [the business] and to its competitors; (5) the amount of effort or money expended ... in developing the information; and,

(6)

the ease or difficulty with which the information could be properly acquired or duplicated by others.

Waf-Mart, 66 S.w.3d at 630. Each one of these factors, in addition to the statutory requirements, must be met for information

to be protected as a trade secret. fd. This is important because some of the six factors adopted by the Saforo Court are not readily evident by the statutory requirements.' In particular, the second and fifth factors do not necessarily follow from the Act. Regarding the second factor, while it can certainly be argued that knowledge of certain information by employees of a business sheds light on the extent to which the business has gone to protect its secrets, some information, such as customer lists, needs to be widely known by the employees so that they can use the information to successfully conduct business. This is especially true for small businesses where there are few employees and for businesses where the employees themselves are actively involved in gathering the information or creating the processes that the company wishes to protect.

10

n,C Arkansas La'rycr

www.arkbar.com

Likewise, regarding the fifth factor, while the effort and money spent by a company in developing information can evidence the difficulty facing a competitor in duplicating that information, it does not necessarily follow that aff proprietary information need be arrived at through such effort and expense.

A secret arrived at by pure accident, without great effort and expense, can still have value to its originator and might well not be readily ascertainable to competitors.

Just because Newton was inspired by the lucky accident of a falling apple does nothing to diminish the fact that the theory of gravity was his and that. without that happy accident, it might have been years before anyone developed the theory. Furthermore, it has been argued that, since patents can be issued for chance discoveries, trade secret protection should also be afforded such dis-

coveries. See Cate, supra, at 710-11.

Regardless, all six common-law factors must be met for information to be afforded trade secret status. Reliance on the statute alone is insufficient.

Inconsistent Case law?

Meeting both the statutory and six common-law requirements, though, is by no means an easy task, and practitioners should warn their clients that they should never take for granted that their proprietary information has achieved trade secret status. The seemingly inconsistent results in two Arkansas cases, Cardinaf Freight Carriers, fnc. v. 1.8. Hunt Transport Servs., fnc., 336 Ark. 143,987 S.w2d 642 (1999) and City SlICkers, fnc. v. Dougfas, 73 Ark. App. 64, 40 S.W3d 805 (200n, highlight the uncertainty in this area.

In Cardinal Freight, several employees left J.B. Hunt Transport Services and went to work for a competitor, Cardinal Freight Carriers. Each employee, upon joining Hunt,

had signed a confidentiality agreement which, among other things, recognized the confidential status of much of the information the employees would be privy to and provided that the signing employee would not divulge such information during his employment with Hunt and for a year following the cessation of employment. When the employees left and went to work for Cardinal, Hunt sued to enjoin the employees from divulging, and Cardinal from using, several trade secrets. These alleged trade secrets consisted of information regarding the profit Hunt made on contracts with specific customers; Hunt's margin of profitability used in its pricing model; the long-term buying habits of Hunt's customers; Hunt's business methods, including "its processes, operations, marketing programs, computer programs, and future plans"; and Hunt's strategies for the future and for penetrating certain markets with specific customers.

Cardinal, 987 S.W2d at 644-45.

The Cardinaf Court found that this information constituted trade secrets. The Court noted that trial testimony established that the information had economic value to Hunt and that it also would give an edge to Hunt's competition in the marketplace. The Court also found that the information was not generally known or readily ascertainable to those who would find it of interest and that Hunt took reasonable measures to keep the information secret. It therefore upheld the injunction issued by the lower court.

One would expect a similar result in City Slickers, fnc. v. Douglas, 73 Ark. App. 64, 40 S.w.3d 805 (2001). The information at issue was similar to that in Cardinaf, but the City Slickers court came to a different conclusion regarding its status. In City Slickers, the appellanVpetitioner, City Slickers, Inc., provided on-site, oil-changing services to customers with large fleets of cars, such as automobile rental companies. City Slickers was a Tennessee company that intended to To expand its business into Arkansas. accomplish that end, it hired the appellee/respondent, Joseph Douglas, as a general manager and assigned him the job of developing the Arkansas business.

Douglas signed three different non-disclosure/confidentiality agreements. After approximately six weeks, Douglas resigned from his position with City Slickers and shortly thereafter opened his own competing business in the Little Rock area. City Slickers sued to enjoin Douglas from competing, but the Pulaski County Chancery Court denied

that relief. The appellate court affirmed.

To aid Douglas in his job, City Slickers had provided him with company documents, including copies of its "Executive Summary [and) Business Plan Overview" and a handbook titled "2000 Little Rock Launch."

Douglas was privy to information such as customer lists, priCing information and advertising plans. City Slickers had taken two years to develop its bUSiness plan at a cost of S10,000 to S12,000. City Slickers had presented testimony at trial that the information provided to Douglas would lose its value if it got into the hands of a competitor and that the information would enable a competitor to undermine City Slickers' pricing strudure and anticipate its moves to develop the Little Rock market.

Furthermore, City Slickers had taken steps to protect this information by requiring employees to sign confidentiality agreements and by using control numbers on each copy of its sensitive documents so it could keep track of which employees had a copy.

Despite all this, the appellate court found that City Slickers' documents and information did not rise to the level of protedable trade secrets. Key to this determination was the court's belief that much of the information City Slickers desired to protect was easily ascertainable and the fact that City Slickers had few Little Rock customers: Information in the subject documents can be ascertained without utilizing City Slickers' documents. City Slickers has only one adual customer in Little Rock; the business plan uses statistics from public surveys and studies; its customer profile and competition figures are easily ascertainable from phone books and surveys; its marketing campaign in the business plan does not include the Little Rock market; and the master customer list includes only Memphis bUSinesses.

Id. at Bl0. The court also noted that the advertising plans for the Little Rock market were based on time-slot demographics that were easily available through various media outlets, that City Slickers admitted that anyone with reasonable intelligence could determine which companies would have automotive fleets in need of servicing, and that City Slickers had no proof that Douglas had used any of the allegedly proprietary information in his possession. In addition, the court distinguished the case from Cardinal by pointing out that Cardinal involved employees who had been with the

Just because Newton was inspired by the lucky accident of an apple falling does nothing to diminish the fact that the theory of gravity was his and that, without that happy accident, it might have been years before anyone developed the theory. company for Six years, whereas Douglas had worked only six weeks for City Slickers.

A strong dISsent In the case points out the weaknesses in the majority's reasoning.

While agreeing with the majority that City Slickers' customer list was not a trade secret, the dissent disagreed with the majority's position that "the detailed information specific to City Slickers contained in the Little Rock Launch 2000 marketing plan and in the business plan were not trade secrets."

Id.at812.

Regarding the launch handbook, the dissent pointed out that it involved specific plans for penetrating the Little Rock market, including a comprehensive schedule for advertising in various media, a detailed public relations campaign, and City Slickers' budget for the Little Rock launch. Only four copies existed of the launch handbook, and Douglas had one of those copies, which he never returned.

Regarding the business plan, the dissent argued that the plan included many types of information that was entitled to trade secret protedion. Among the information pointed to by the dissent was City Slickers' detailed discussion of its operations; a declaration of its intent to expand into Little Rock within the neXl 12 months; its long-range marketing plans, pricing information, details regarding overhead, operating expenses and corporate expenses; and explicit corporate financial reports and projedions. Citing Cardinal, the dISsent noted that "[Arkansas'l

supreme court has held that information such as pllce modeling, customer profit margins, logistiCS, future plans, and specific marketing strategies are proteded under the Trade Secrets Ad." Id. at 813. The dissent also believed that this information would pass the six-fador test enunciated in Saforo, specifically arguing that, while some of the information was readily accessible, much of it was not. being far too detailed and being tailored to City Slickers' plans. Additionally, the dissent pointed out that City Slickers went to considerable time and expense to acquire the information, and that City Slickers took proper measures to keep that information secret.

Furthermore, the dissent took issue with the majority's emphasis on the short duration of Doulgas' employment, which the dissent argued was irrelevant. The dissent also dismissed the fact that Douglas had not yet used any of the information, pointing out that the test for determining trade secret status is not a but-for test but rather an inquiry into whether or not the ex-employee's new Job will inevitably lead him to rely on the trade secrets. Finally, the dissent disagreed With the majority's argument that City Slickers had no legitimate business interest in the Little Rock market, pointing to the amount of time and effort expended by City Slickers in preparing to enter that market. The dissent concluded that the information contained 10 the business plan and launch handbook would likely prove to be

Handwriting Experts Linda L. Taylor

Howard (Bear) Chandler

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

Vol. 38 No. 21Spring 2003

n,e Arkansas Lawyer

II

trade secrets.

Applying the Law Given the apparently inconsistent results in Cardinal and City Slickers, what should practitioners tell clients to do to protect confidential information? First of all, the information must meet the statutory requirements. It must have economic value to both the business and its competitors. Generally, the information is going to either be of value or not-little can be done about that. One thing a business can do, however, is to articulate the reasons why that information is valuable and communicate that information to all its employees and executives. This can be accomplished through a carefully constructed confidentiality agreement that explains why the company's secrets are valuable assets to be protected.

To be protected, the information must also be such that it is neither generally known to competitors nor readily ascertainable. Not much can be done if the information is already known by others, but if the information contains easily ascertainable information, it might be protected by infusing it with information not readily available.

For instance, take a client list, which can easily be duplicated by using the phone book.

Including such information as the names and numbers of personal contacts within those client businesses, details of specific and/or special needs of those clients, e-mail addresses, names of people who provided referrals that helped gain access to those clients, references by those clients to other potential clients, and any other information that can only be gained through time and effort can help to protect the list. Of course,

there is always the danger that a court could ignore the confidential aspects of the list and define all the information as non-proprietary, simply because the names themselves can be easily garnered from the phone book. If that occurs, the attorney needs to argue that the confidential Information should be redacted from the list.

Furthermore, a business should take as many precautions as possible to keep its information secret. It should limit the number of employees, including executives, who have access to the secrets; place sensitive material in computer files that are password protected; keep hard copies of information under lock and key; develop strict guidelines regarding copying the information and/or removing it from the premises; code and track sensitive documents; and have employees and executives sign confidentiali路 tyagreements. In addition, if the information is shared with clients or potential clients, develop guidelines for them to follow in guarding the information, and have them sign confidentiality agreements. It is also a good idea to have executives sign an additional confidentiality agreement to the one signed by all employees.

Once the statutory factors are met, then the common-law factors should be addressed. If all the statutory requirements have been satisfied, then factors one, three, four and six have also most likely been met.

Factor two, the extent to which the information is known by employees and others in the business, can be satisfied by limiting, as much as possible, the people who have access to that information. Only those who absolutely need the information to perform their tasks should have access to it. Factor

five, the amount of effort or money expended in developing the information, can more easily be met at trial if the business has kept records documenting its efforts and expenditures.

Finally, the business should definitely have a non-competition agreement with all of its employees and executives who have access to its trade secrets. While such an agreement is not absolutely necessary, see Cardinal, 987 S.W2d at 643-44, in City Slickers, the petitioner did not have a noncompetition agreement, and that almost certainly resulted in closer scrutiny of the trade secrets by the trial court, which found that the confidentiality agreements signed by the employee" constituted an unreasonable and unlawful restraint of trade, and that it was an overly broad covenant not to compete masquerading as a confidentiality and nondisclosure agreement." Also, see ConAgra, Inc. v. Tyson Foods, Inc., 342 Ark. 672, 30 SW.3d 725 (2000), where several executives had not been required to sign a non路compete.

While the ocean of trade secret law can sometimes be murky and turbulent for both businesses and practitioners alike, being mindful of the statutory and common-law requirements can help keep a client's confidential, proprietary information afloat..

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The Intersection of Intellectual Property and Franchising Law

by Patrick W. McAlpine

At the heart of each franchise are registered trademarks or service marks that have significant value in the relevant marketplace...a franchise business is only successful if the mark attracts customers to the goods that it represents.

Franchise law is one area of commercial law that is significantly impacted by intellectual property concepts. While franchise practice in Arkansas is focused mainly on franchisees, there are some Arkansas-based clients interested in franchising their business concepts. Arkansas practitioners should therefore be aware of the framework of franchise law and how the various types of intellectual property impact franchise relationships.

A. Basic Franchise Law

1. The Arkansas Franchise Practices Act The Arkansas Franchise Practices Act, Ark. Code Ann. § 4-72-201 et seq., is applicable to a franchise relationship if, and only if, the franchisee is required to do business in Arkansas.' A" franchise" is defined as "a written or oral agreement for a definite or indefinite period in which a person grants to another person a license to use a trade name, trademark, service mark, or related characteristic within an exclusive or nonexclusive territory or to sell or distribute goods or services within an exclusive or nonexclusive territory at wholesale or retail, by lease agreement, or otherwise.â&#x20AC;˘ 2

(a) Termination Provisions At the heart of the Arkansas Act are its provisions for termination. The Act makes it a violation to terminate, cancel or fail to renew a franchise without "good cause."

Good cause is defined as: (A) failure by a franchisee to substantially comply with nondiscriminatory requirements imposed by a franchisor; (B) failure by a franchisee to act in good faith and in a commercially reasonable manner; (C) voluntary abandonment of the fran-

chise by the franchisee; (0) franchisee's conviction of a felony substantially related to the business conducted pursuant to the franchise; (E) any act by a franchisee that substantially impairs the franchisor's trademarks or trade name; (F) institution of insolvency or bankruptcy proceedings by a franchisee; (G) loss of the right to occupy the premises from which the franchise business is operated; and (H) failure of the franchisee to pay the franchisor within 10 days of any sums owing to the franchisor.'

A franchisee cannot terminate a franchise for (A) or (B) unless the franchisor first gives the franchisee gO-days notice of the proposed termination and a 30-day period to cure the deficiencies. 4 However. the law also provides that if a franchisee has repeated deficiencies over a one-year period, the franchisee's cure period is shortened to 10 days.' (b) Unlawful Practices Of Franchisors Franchisors may not contract for a release from liability under the Act as part of a franchise agreement. They may not prevent free association among franchisees. In general, franchisors must deal with franchisees in a commercially reasonable manner and in good faith' The AMI instruction on unlawful franchisor practices provides a great source for both advising franchisors and litigating franchise disputes if necessary.' (c) Penalties The Act also contains a criminal component. No person may knowingly: (1) employ any device, scheme or artifice to defraud; (2) make any untrue statement of a material fact or omit to state a material fact; or (3) engage in any practice which would operate

as a fraud or deceit upon any person' Violations of this section are Class B felonies.The Act also provides for a private civil cause of action. 10 Any franchisee harmed by a violation of the Act by a franchisor is entitled to recover treble damages in a civil action or obtain injunctive relief and attorneys' fees and costs." The injured franchisee also has the right to demand that the franchisor repurchase the franchisee's goods related to the franchise." Further, the Attorney General can file an injunctive proceeding against any franchisor in the Pulaski County Circuit Court. 13 The most recent version of the Arkansas Model Jury Instructions (Civil 4th) ("AMI") include jury instructions for the Franchise Practices Act." The comments to those instrudions and the instructions themselves are a valuable resource for research about the various sections of the Act. The Arkansas Act is not based on a uniform act. In fact.

is an associtlu at th~ Little Rock law firm of Quattlebaum, Crooms, Tit/I 6- Burrow PLLe H~ is a gradullu oftilt Ufliv~rsity of Arkansas (B.A., summa cum laude, 1996) and the University of Arkamas at Lictle Rock U-D., with high honors. 1999), He served as Editorin-Chiefofthe UALR Low Rrvirw in 19981999 and is a member of the Arkamas Bar Association S Intel/untal Proptrry Surion.

Mr. McAlpin~'s primary ar~as ofpractiu art inullutulll property and frnnchist law, civil and comm~rcial litigation and immigration/ naturnlizn.tion law.

Patrick \V

McAlpin~

Vol. 38 No. 2/Spring 2003

TI,C Arkansas La"Ycr

15

no states have adopted the National Conference of Commissioners on Uniform State Laws' proposed act'S 2, The FTC Rule On Franchising 16 C.F.R. ยง 436.1 is the Federal Trade Commission's rule concerning Disclosure Requirements and Prohibitions Concerning Franchising and Business OpportUnity Ventures.

The FTC rule lists 20 categories of Information that must be provided to a prospective franchisee prior to signing a Franchise Agreement.'. The FTC rule makes it an unfair or deceptive practice under the FTC Act for any franchise to be offered Without a disclosure statement which Includes the 20 categories of informatlon,17 The FTC may impose civil penalties for committing an unfair or deceptive practice within the meaning of the FTC Act.'.

There is no private cause of action under the FTC Act for violation of the franchise disclosure requirements. 19 3. Relationship of the Arkansas Act and the FTC Rule on Franchising By its terms, the Arkansas Franchise Practices Act excludes 'those business relations, actions. transactions, or franchises subject to the provisions of ... the FTC rule .. '20 The FTC rule applies to all franchises advertised, offered, licensed, contracted, sold or other promotion in or affecting commerce, as 'commerce' is defined in the FTC Act." In the FTC Act, commerce is defined

as: Commerce among the several States or With foreign natIons, or in any

Territory of the United States or in the District of Columbia, of between any such Territory and another, or between any such Territory and any State or foreign nation, or between the District of Columbia and any State or Territory or foreign natlon. 22 Therefore, because the FTC Rule applies to all franchISes InvolVing interstate commerce, the Arkansas Act seemingly only applies to those franchise relationships that are wholly within the state of Arkansas. This restrictive view of the applicability of the Arkansas Act has not been fully tested in the courts, although there are several decisions declining to apply the Franchise Practices Act to a dispute with ties to this state."

B. Intersection of Franchising law With Traditional Intellectual Property Concepts

16 n,e Arkansas Lawyer

www.arkbar.com

Franchised businesses typically encounter copyright issues. The most common place where copyrights are a concern

IS

a franchisor's manuals, handbooks and written operations procedures,

1. Trademarks/Service Marks At the heart of each franchise are registered trademarks or service marks that have significant value in the relevant marketplace.

Trademarks represent goods sold by a particular bUSiness. and service marks represent services prOVided by a business. Both types of marks may be registered nationally, stateWide or both. The United States Patent and Trademark Office (the 'USPTO') IS responSible for regIStration of marks on the federal level", while the Arkansas Secretary of State's offICe is responSible for registering marks on the state leveL" In the marks lie the basic value of the franchise because a franchise business is only successful if the mark attracts customers to the goods that it represents.

Commonly, trademarks used in franchising are federally registered, thus entitling the mark to nationwide protection. It is possible, however, to franchise a business within the state of Arkansas using a mark protected only by state registration. For a variety of reasons, this path is not recommended.

Franchisors usually begin franchising their businesses because they are motivated by a

desire to expand their business rapidly.

Expansion is rarely limited to in-state franchisees. Therefore, it is imperative to obtain federal regIStration for all trademarks or service marks that are important to the franchised business at the earliest possible date.

Also, obtaining an Arkansas registration only could be a factor that the Arkansas courts will examine to determine whether the Arkansas Franchise Practices Act covers the relationship entered Into by the parties.

Obviously, a franchisor who has a federal registration IS more likely to be covered by the FTC rule on franchises and thus NOT covered by the Arkansas Act. 2. Trade Dress Trade dress is a very important corollary to the use of trademarks in a franchised business. Trade dress is 'the total image of a product and may Include features such as size, shape, color or color combinations, texture, graphics or even particular sales techniques. '26 Trade dress also includes the shape, style or other recognizable means of identifying the source of goods or services.

The classic example of protectible trade dress is the shape and color of a particular

restaurant chain." It can also include the size or shape of the container in which the company's goods are sold.

Trade dress can be a vital component of protection for franchised businesses. Some of the most successful franchises have trade dress that is more recognizable than their

trademarks or service marks. Franchised businesses often use trade dress in the shape and style of their retail locations, the packaging of their products and especially in their advertising. Attorneys advising franchisors should be aware that trade dress may be protected separate and apart from trademarks or service marks under the Lanham Act." 3. Copyright Copyrights are governed by both common law and federal statutes." In general, copyrights protect "original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.' 30 Works of authorship include the following categories: (A) literary works; (B) musical works, including any accompanying words; (C) dramatic works, including any accompanying music; (D) pantomimes and choreographic works; (E) pictorial, graphic, and sculptural

works; (F) motion pictures and other audiovisual works; (G) sound recordings; and (H) architectural works" In order to register a copyright, the author should deposit two copies of the work with the Library of Congress. The Library of Congress also administers the Copyright Office. The forms, fees and appropriate methods of filing for a copyright are available on the Copyright Office's Internet site. 32 Once a copyright is registered with the Copyright Office, and marked with the copyright mark [Šl, the owner of the copyright may sue infringers in federal court. If successful, the owner can recover statutory damages of $750.00 to $30,000.00. 33 The district court may award attorneys' fees and costs to the prevailing party in its discretion,34 Franchised businesses typically encounter copyright issues. The most common place where copyrights are a concern is a fran-

chisor's manuals, handbooks and written operations procedures. Many franchisors neglect to take the simple steps of marking all such materials with the copyright mark [Š] and the author's name. If the handbook, manuals or other information is original work of the franchisor or its agents, it should be registered with the copyright office. Further, restrictions on use of copyrighted materials by franchisees should be explicitly covered in the Franchise Agreement, Uniform Offering Circular and in the body of the materials themselves. Most franchisors include limited rights to copy handbooks, manuals and training materials as part of the franchise. Each set of materials should be considered separately.

Another growing area of which franchisors and franchisees should be aware is the copyright in computer software used in franchised businesses. Copyrights in sohware are ordinarily owned by third parties.

The standard arrangement is where the third party grants a master license (exclusive or non-exclusive) to the franchisor for use in its franchised stores. The franchisor then has the power to grant sublicenses to use the software to its franchisees. The sohware company may also elect to do separate license agreements with each individual franchisee. If a franchisor develops its own

proprietary sohware, it will likely grant each franchisee a license to the software for a separate fee. If the sohware-licensing fee is separate from the initial franchise fee. it must be disclosed in the Offering Circular."

4, Trade Secrets Arkansas' Trade Secrets Ad defines a trade secret as: "information, including a formula, pattern, compilation, program, device, method, technique, or process, that: (A) Derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and (B) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy... 36 The Supreme Court of Arkansas has published several important trade secret decisions in recent years.3 7 In those decisions, the court has adopted a six-factor test to help determine whether something is a trade secret.38 Trade secrets are a crucial part of franchised businesses and are ohen improperly protected by franchisors. Often, a franchisor's trade secrets are more important than the franchisor's trade marks. Trade secrets are especially important in food serv-

ELECTRICAL ACCIDENTS Paul D. Mixon, Ph,D" P,E. Engineering Consultant P,O, Box 3338 State Un.iversity, AR 72467 (870) 972-2088 (870) 972-3948 FAX pmixon@navajo.astate.edu

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

Vol. 38 No. 2/Spring 2003

TI,e Arkansas La\\yer

17

ice franchises. For example, a franchise could be built around a particular recipe for meatloaf. Assuming that the meatloaf was so tasty that public demand allowed franchise stores to develop, the franchisor's only means of protecting the recipe for the meatloaf would be through trade secrecy.

Franchisors must be advised about the state of trade secret law, especially because

of the numerous Judicial decisions that have been issued in this state in the last two years. Franchisors must be careful to allow only certain key individuals owning the franchised business to know protected trade secrets. Those individuals should also sign confidentiality and non-disclosure agreements, which should extend the confidentiality and non-disclosure provisions post-ter-

mination. 39 This presents special problems in the context of franchises, when many employees who need to know confidential information are short-term, possibly low- or minimum-wage employees. In the meatloaf franchise restaurant example, the persons with the greatest need to know the trade secret may be the cooks, who have high turnover. The franchisee in this situation must be very diligent to ensure that all employees exposed to the trade secret keep it confidential.

5. Internet Domain Names And Web

Sites Persons considering involvement in fran-

I am pleased to announce the formation of Cullen & Co. PLLC at III Main Street, Suite A Little Rock, Arkansas 7220l.

The firm's mailing address is P.O. Box 3255, Little Rock, Arkansas 72203. Our phone number is (501) 370-4800 and the facsimile is (50]) 370-9198. You may reach me bye-mail

at tim@cullenandcompany.com. I will continue to practice primarily in the areas of personal injury litigation (including automobile accidents. medical negligence and products liability). insurance disputes. and general civil litigation. I am also devoting a growing portion of my practice to assisting other attorneys with their Arkansas state court appeals. Please contact me if I can be of service to you or your clients.

~

18 n,e Arkansas Law)'er

Tim Cullen ~ Cullen & Co., PLLC

www.arkbar.com

chises must also be aware of the changing laws and regulations regarding Internet domain names. The United States Congress enacted the Anti-Cybersquatting Consumer Protection Act" (the "ACPA "), in part because of complaints from large franchisors whose domain names had been registered by persons not affiliated with their business.

Franchisors should ensure that domain names similar to their trade name have disclaimers or other indications that they are not affiliated with the franchisor. Moreover, franchisors must maintain strict control over franchisees' use of the domain name and related domains. The ACPA provides a useful vehicle for franchisors to enforce their domain name rights in federal court; howev· er, many persons who use franchised names in a disparaging manner are very difficult to locate and serve with legal process. The best advice for franchisors is to be Internet·savvy and ensure that the franchisor is aware of any unauthorized use of the domains.

Endnotes 1 Ark. Code Ann. § 4-72-203; see also JRT, Inc. v. TCBY Systems, 52 F.3d 734 (8th Cir. 1995).

2 Ark. Code Ann. § 4-72-202(1)(A).

3 Ark. Code Ann. § 4-72-204(a)(1); Ark. Code Ann. § 4-72-202(7).

4 Ark. Code Ann. §4-72-204(d).

5 Ark. Code Ann. § 4-72-204(d).

6 Ark. Code Ann. § 4-72-206(6).

7 Arkansas Model Jury Instructions ("AMI"), AMI 3305.

8 Ark. Code Ann. § 4-72-207(a).

9 Ark. Code Ann. § 4-72-207(b). Class B felonies carry a maximum penalty of twenty years' imprisonment. Ark. Code Ann. § 5-4-401 (a)(3) 10 Ark. Code Ann. § 4-72-208(b).

11 Ark. Code Ann. § 4-72-208(a).

12 Ark. Code Ann. § 4-72-209.

13 14 15

16 17 18 19 20 21 22 23

24 25 26

27 28

29

Ark. Code Ann. § 4-72-208(c).

AMI 3301-AMI 3307.

See National Conference of Commissioners on Uniform State laws' Internet site, http://www. nccusl.org/nccusl/DesktopDefault.asp x (last visited February 12, 2003) and http://www.law.comell.edu/uniform/uniform.htm!. (last visited February 12, 2003).

16 C.F.R. § 436.1(a).

16 C.F.R. § 436.1.

15 USc. §. 45.

15 U.S.c. § 45(a)(2); 45(m) Ark. Code Ann. 4-72-203.

16C.F.R.§436.1.

15 USc. § 44.

See, e.g., JRT, Inc. v TCBY Sys., 52 F.3d 734 (8th Cir. 1995); see also Mary Kay, Inc. v Isbell, 338 Ark. 556, 999 SW2d 669 (1999).

15 U.S.c. § 1051 et seq.

Ark. Code Ann. § 4-71-201 et seq.

Two Pesos, Inc. v Taco Cabana, Inc., 529 U.S 205, 112 S. Ct. 2753 (1992).

Id. The lanham Act is the federal trademark statutes, 15 U.s.c. § 1051 et seq.

17 U.s.c. § 101 et seq. 17 U.S.c. § 201 provides that ownership of a copyright vests originally in the author of the work. This is the codification of the common law copyright. Once the creator of a work commits it to a tangible medium, it is protected.

Even though common law protection applies, all authors

30 31 32 33

34 35 36

37

38

cy of the information; (4) the value of

should consider federally registering their works in order to take advantage of the federal statutory copyright protections.

17 U.s.c. § 102(a).

17 USc. § 102(a)(1)-(8). located at http://www.copyright.gov.

17 U.S.c. § 504(c). If the infringement is found to be willful, the statutory damage range goes up to a maximum of $150,000.00. Id. If the infringement is found to be innocent, the court may, in its discretion lower the amount to $200.00 per infringement. Id. 17 U.s.c. § 505.

16 (F.R. § 4361(10).

Ark. Code Ann. § 4-75-601(4).

See, e.g., Statco Wireless LLC v Southwestern Bell Wireless, LLC, 80 Ark. App. 284, 95 S.w3d 13 (2003); Tyson Foods, Inc. v ConAgra, Inc., 349 Ark. 469, 79 SW3d 326 (2002); Weigh Systems South, Inc. v Mark's Scales & Equipment, Inc., 347 Ark. 868, 68 SW.3d 299 (2002); WalMart Stores, Inc. v PO. Market, Inc., 347 Ark. 651, 66 SW3d 620 (2002);

39

40

the information to plaintiff and its competitors; (5) the amount of effort or money expended by plaintiff in developing the information; and (6) the ease or difficulty with which the information could properly be acquired by others. Id. See Tyson Foods, Inc. v ConAgra, Inc., 349 Ark. 469, 79 S.w3d 326, 329-30 (2002). There, the supreme court held that while a post-employment confidentiality agreement is not an absolute prerequisite to finding a trade secret. it is a significant factor for courts to review in trade secret litigation.

15 U.S.c. § 1125(d); 15 U.S.c. § 1129.

For information about advertising in

The Arkansas Lawyer, please contact Anne Conaway at (501) 375-4606, 800-609-5668 or aconaway@arkbar.com.

and ConAgra, Inc. v Tyson Foods, Inc., 342 Ark. 672, 30 S.w3d 725 (2000).

See Statco Wireless, supra note 37.

The six factors are: (1) the extent to which the information is known outside the business; (2) the extent to which the information is known by employees and others involved in the business; (3) the extent of measures taken by plaintiff to guard the secre-

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a

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~1IIIi!IIIII!II!

Vol. 38 No. VSprlng 2003

TI,e Arkansas lawyer

19

.

A. Introduction Many attorneys believe intellectual property has little application to their practice. intellectual property, however, is very pervasive in today's business society. A client's ability to carry on its day-to-day business can be affected by the many facets of intellectual property. One such facet involves the treatment of intellectual property in a bankruptcy proceeding. Due to the increase of bankruptcy filings over the past few years, it is critical for any attorney who has corporate clients, regardless of size, to understand how intellectual property rights can be affected by a bankruptcy filing.

One aspect of the United States bankruptcy laws that affect intellectual property rights include the rights of licensors and licensees. This article reviews how a licensor

However, in order to receive that protection, the inventor must apply for and diligently pursue the patent, or else the patent rights could be forfeited.

Trademarks and service marks arise under federal, state and common law. A trademark proteds a name, symbol, word or combination thereof used by a person to identify and distinguish his or her goods or services from those provided or manufactured by others. The primary purposes of a trademark or service mark are identifying the origin of the subject goods or services and providing some measure of quality assurance. A mark needs to be distinctive or recognizable in order to serve as an identifi路 er; e.g., Exxon, Wal-Mart, Tyson.

Copyrights are also created and governed by federal law. Copyrights cover "original

or licensee's intellectual property rights could be affected when the other party files for bankruptcy protection.

works of authorship fixed in any tangible medium of expression"; e.g., music, computer programs, books. A copyright owner possesses the exclusive right to (a) reproduce the work, (b) prepare derivative works from the work, (c) distribute copies of the work to the public, (d) publicly perform the work and (e) publicly display the work. An author need not register his copyright to get protectionthe only requirements are originality and fixation in a tangible expression. Nonetheless, to enforce one's rights by bringing an action in Federal Court, (and in order for a secured creditor to properly perfect a security interest in a copyright), the author must register the work with the Copyright Office.

Trade secrets are protected under state law only. Trade secrets are given broad protection; virtually any information qualifies

B. Intellectual Property Intellectual property generally includes the following: (a) patent rights, (b) trademark and service mark rights, (c) copyright rights and (d) trade secrets.

Patent rights are created and governed by U.s. federal law. Generally speaking, patents cover inventions of new and useful machines, processes and improvements thereof; e.g., medical implants, business methods, etc. Patents encourage invention by providing an owner/inventor with a temporary monopoly (generally 20 years) on the invention, which allows the inventor to control the usage and sale of the invention.

for trade secret protection if its limited availability gives it economic value and it is reasonably guarded. Examples of trade secrets are customer lists, prices, costs, processes and formulae.

C. General Overview of Intellectual Property Licenses in Bankruptcy

1. In General When a party has licensed Intellectual property from a licensor who subsequently becomes a debtor in a bankruptcy case, two immediate questions arise: (a) Was the license considered an "executory contract"? and (b) What is the effect of the "rejection" of the debtor? Section 365 of the Bankruptcy Code' generally provides that, subject to certain limitations and qualifications, a trustee "may assume or reject any

executory contract or unexpired lease of the debtor. "2 Executory contracts are those contracts where there is such performance due from each party to the contract that nonperformance by either party would be a material breach of the contract.3 2. Exclusive Intellectual Property Licenses As a general rule, exclusive licenses of

BrentA. Capehart is the principle o[the Tulsabased Capehart Law Firm, PLLC, a law firm devoted to patent, trademark, copyright and other related intellectual property matters. He can be reached at (9 J8) 747-4600 or bcapehart@capehartlaw.com

Vol. 38 No. 2/Spring 2003

The Arkansas Lawyer

21

patents, copyrights and trademarks are treated as "executory contracts" pursuant to the Bankruptcy Code because the licensor has a continuing obligation to refrain from licensing the intellectual property to third parties, and the licensee has a continuing obligation to pay royalties, account to the licensor, etc. 4 A bankruptcy trustee may reject an executory contract, assume an

ment.?

Depending on the type of bankruptcy filing, the trustee mayor may not be required to render a decision to assume or reject an

executory contract within a specific time frame.

In a Chapter 7 liquidation, the trustee must assume or reject executory contracts within 60 days of the bankruptcy petition unless the Bankruptcy Court extends

existed immediately before the commencement of the bankruptcy case. 10 If the licensee elects to retain its rights, the licensor (or trustee, if one has been appointed) is required, to the extent the license so requires, to provide the licensee with any intellectual property in its possession and to allow the licensee to exercise all of its rights under the license for the duration of the

As society's dependence on advanced technology grows, businesses are taking greater care to secure their rights in new discoveries or innovations, thus making it common for the principal assets of any given company to consist of intellectual property. executory contract or assume and assign an executory contract. 5 If the trustee rejects the executory contract, the contract is breached (but generally not automatically terminated) and the non-debtor party has a pre-petition claim for that breach of contract.

If the trustee assumes an executory contract, or assumes and assigns the executory contract, the trustee must: (a) cure, or provide adequate assurance of cure, of any default, (b) compensate the non-debtor party, or provide adequate assurance of compensation, for any actual pecuniary loss for any default, and (c) provide adequate assurance of future performance under the executory contract' Upon assumption of the executory contract, all obligations under the contract become post-petition obligations of the bankruptcy estate. However, if the executory contract is assumed and assigned, the bankruptcy estate is relieved of all obligations accruing after the assign22

TIle Arkansas La\\ycr

www.arkbar.com

that deadline. Otherwise, the executory contract will be deemed rejected' In a Chapter 11 reorganization, there is generally no time limit prior to confirmation of a plan of reorganization for the trustee to assume or reject an executory contract. Yet, any party may seek to have the Bankruptcy Court impose such a deadline or compel the assumption or rejection of the executory contract. 9 If the licensor rejects the license, the rejection is generally treated as a breach of the license as of the date of the bankruptcy filing. Section 365(n) of the Bankruptcy Code provides that if a trustee or debtor in possession rejects "an executory contract under which the debtor is a licensor of a right to intellectual property," the licensee under the contract may elect to retain its rights to the use of the intellectual property (including exclusivity provisions) for the duration of the contract because such rights

license because such rights existed as of the date of the bankruptcy filing (including exclusivity rights, but specifically excluding any other right to specific performance). To retain its rights, the licensee is required to pay all royalties due under the license, and the licensee must waive any setoff rights it may have and any administrative claim it may have in the licensor's bankruptcy case.

If the licensee elects to terminate the license, any claim by the licensee for damages for breach of the contract is treated as a nonpriority general unsecured claim. 11 Section 365(n), however, has several limitations that must be considered when dealing with agreements involving the use of intellectual property.

First, "intellectual property" as defined by the Bankruptcy Code does not include trademarks. If a trademark license is rejected by the licensor, the licensee will lose its rights to use the trademarks under the license. If

Arkansas [OLTA Foundation

tates,

ill

order to fonll a more perfect Ullioll, establisll JlIstice,

Provide for tile COIIW'OIl defellse, prolllote tl'e gelleral Welfare, :U"IJt'bertt) to ollrselves alld ollr posterity, do ordaill alld establisll tllis tates ofAmerica. ·PREAMBLE TO THE U.S. cn.Siii~~ ill

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The Foundationj

mission is to

~,e People of tile Ullited

perfect Ullioll, establislt JlIstice, illsllre dOlllestic Trallqllility,

increase access to , prolllote tl'e gelleral Welfare, alld secllre tile Blessillgs ofLiberty

justice by fUnding

do ordaill alld establisll til is COllstih/tioll for tl'e Ullited States of

programs that target the civil legal

. CONSTITUTION

needs oflow-income

~he People of tlte Ullited States, ill order to

Arkansans and by

establisll J"stice, illsllre domestic Trallqllility, Provide for tl,e

encouraging projects

elleral Welfare, alld seCllre tile Blessillgs of Liberti) to ollrselves alld

that improve the

It tI'is COllstih,tioll for tile Ullited States ofAlllerica. ·PREAMBLE

administration e tl,e People of tI,e Ullited States,

ofjustice. Grant priorities are:

ill

order to fonll a more perfect

re domestic Trallqllility, Provide for tile COIIIIIIOII defellse, alld seclIre tile Blessillgs of Liberty to ollrselves alld Ollr

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to the poor ~. For

student loans

and scholarships ~. Other programs

fOr special projects that improve the administration ofjustice

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2002 Annual Report

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tates ofAmerica. -PREAMBLE TO THE U.S. CONSTITUTION

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-PREAMBLE TO THE U.S. CONSTITUTION

r

2002-2003 IBOARD OF DITRECTORS

•

ILETTER FROM THE IPRESKDENT

•

OFFICERS

D EXECUT1VE IDrrRECTOR

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

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, whjch provides the guidelines for safekeeping the property of others, requires aU Arkansas lawyers who hold c1jent trust funds that are short-term or nommal 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 adrllicistration of justice.

During 2002 the Foundation paid $1,067,136 in grants in these three categories.

Unfortunately, as interest rates plummeted in 2002, so did the Foundation's income. Most Arkansas banks were paying interest of 2% or higher prior to the tragic events of September] 1, 2001, but were unable to continue to do so due to economic events following that sad date. The average interest rate paid on IOLTA accounts during 2002 fell to 1.00%. However, over 240 Arkansas banks offer IOLTA accounts, and most still do so without charging fees. This enables the Foundation to maximize the amount of funds that are available for grants for lawrelated commu.city activities. The Foundation sincerely appreciates this support from the Arkansas banking community.

Please take a few mmutes to review thjs report---especially the case vignettes that exemplify the good work done by Arkansas lawyers. We appreciate the positive response and leadershjp of the legal commumty 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. The interest from your IOLTA account does make a difference daily in the lives of people who need legal help.

Thomas Ray President, 200] -2002

•

Susie Pointer Executive Director

•

W SCHOOL SC OLARS liPS UNIVERSITY OF ARKANSAS SCHOOL OF LAW, FAYETTEVILLE The following law students at the University of Arkansas School of Law, Fayetteville, received IOLTA scholarships for fall of 2002:

Judy S. Barton received the Arkansas Bankers Association IOLTA Scholarship. Ms. Barton, a resident of Fayetteville, earned a BA degree in Psychology with a minor in Social Work from the University of Arkansas. Her mother, Ms. ludy Baldwin, resides in Fayetteville.

Torree M. Dyson received the Arkansas League of Savings Institutions IOLTA Scholarship. Ms. Dyson obtained her SA degree in Psychology and her Masters of Art degree in Communications from the University of Arkansas. Her grandparents, Mr. and Mrs. Booker Jones, reside in North Little Rock.

Walter R. Hellums received the Arkansas Bar Association IOLTA Scholarship. Mr. Hellums graduatee from Lyon College with

a BA degree in English. His parents, Mr. and Mrs. Albert Hellums, reside in Oxford, Arkansas.

Susan K. Weaver is the recipient of the Walter R. Niblock IOLTA Foundation Scholarship. Ms. Weaver is a graduate of the University of Central Arkansas with a BS degree in Speech-Language-Pathology. Her parents, Mr. and Mrs. Ferrell Weaver, reside in Clinton.

Recipients of Arkansas IOLTA Foundation Scholarships are Lajoy Nicole james and Michael jared Medlock. Ms. James received her undergraduate degree in Public Administration from the University of Arkansas. Her parents reside in Forrest City. Mr. Medlock, a native of Mulberry, received his undergraduate degree in Political Science from the University of Arkansas.

UNIVERSITY OF ARKANSAS AT LITTlE ROCK BOWEN SCHOOL OF LAW The following law students at the University of Arkansas at little Rock Bowen School of Law received IOLTA scholarships for fall 2002: KaTona R. Hodge received the Arkansas Bankers Association IOLTA Scholarship. She graduated from Hendrix College. Her parents, Mr. and Mrs. Billy Robinson, live in lillie Rock.

Suzanne L. Kellar received the Arkansas League of Savings Institutions IOLTA Scholarship. She graduated from the University of Arkansas at Little Rock with a SA in Criminal Justice and a minor in Legal Studies. Her parents, Mr. and Mrs. Glen Vantrease, reside in Little Rock.

Lori Burrows received the Arkansas Bar Association IOLTA Scholarship. Ms. Burrows, who is a resident of Maumelle, graduated from the University of Central Arkansas with a SA in Speech Communication.

Tequiero Smith is the recipient of the Walter R. Niblock tOLTA Foundalion Scholarship. She resides in little Rock and is a graduate of Arkansas State University with a degree in Sports Medicine/Athletic Training.

Recipients of Arkansas IOLTA Foundation Scholarships are Leslie ligon and Tasha C. Sossamon. Ms. Ligon graduated from the University of Arkansas with a SA in History. Her parents, Mr. and Mrs. Micky Ligon, reside in Marvell. Ms. Sossamon, who is a resident of Little Rock, graduated summa cum laude from the UniverSity of Central Arkansas with a SA in English and a minor in Computer Information Systems and an emphasis in Spanish. Her parents, Mr. and Mrs. Wesley Sossamon, reside in Marshall.

UNIVERSITY OF ARKANSAS SCHOOL OF LAW FAYETTEVILLE

I haw bttn awartkd an IOLTA scho/anhip in thr tlmount ofS2.000 ptr 1mIt'Sltr through Ilu Arka1lUli" IOLTA roundalion. Inr. I would likt to taltt tlJis opportunity to tell you lJou/ much I apprrriatf thu finantinl assistanu. I hoJK thm SOnltdny I u-NI bt ablr 10 ""Ip nCl'dy srwltnu p"nut I/uir rducation in the 14mt m/llln" as you haw llfSilUd mt ;', /"tarhi"g my goal,.

Sjnrrrrly, SUldn K. Wral/t'r

UNIVERSITY OF ARKANSAS AT LITTLE ROCK SCHOOL OF LAW A-fy IIIm/t is Tasha C. SoSS/llllon. / am a fim yar lawstudmt at thr \'(filltam N. &uttn &11001 of Law and am IH}1/0r,J to br II rrripirllt oftbis yrar's IOLTA Foul/titl/ion &holarship. I wam to rxprrss my sil/rrrr Ilpprtei4lio/1 for your grllrrosisy in prrllliding IIIr will, Ibis scholarship. II il nlu-aYI inspiring to tram OfptOpk ami organizalionl. mrb as IOLTA, thaI arr jnurrsud in hrlpi"g and supporting ot/~. I ani elptrially grauftlfor tht fillllllrinl tfSSistlwCt you haw providtd to IJrIp ftnd my kgal rduralion. Funlurmort. I am inrpirrd by your mission to "inrrran arms to jusrirf~ by 4SfiSling loul im"Jnu popu!JJtio1l1 that arr currtntly unahk to rrrrivr kgal ftT/Iirn. Whist a wondrrfNl objrrtivr! / am MgtT" 10 u'Orlt with you in aehitvint, IIIU goal through partidpalin: in Ihe law JfhoolS ltgal dink and otbtT" 1'Oluntrrr opponunitits in 11KfUtU".

I am thrilkd that 11K IOLTA &holanhip roup/rd with tM Fat value offrrrd i" kgal tJuralion at tlK &UKn SrhfH,1 ofuw will allow mt to gnu/uau witb minimal tkbt. tlKrrjDrr mhanril/g"t] rarrrr options afttT"!JJw Jfhool I u,ill do my hnt to mmt tM gift you haw au:artkd to mt. Onu agail/. thaI/it you for your gtnmJlity to mt and your frirmlsbip 10 UALR \'(Iilliam H. BoU~1I &htJoI ofLnu'.

Sinrtrt/y yours, Tasha C. Sossamon

•

2002IF'li

•

L KNIFORM TK INCOME

$508,459 2,588 20 2,740 28.481 $542,288

IOlTA Accounts Interest earned on operating account Interest earned on unemployment account Interest earned on money market account Interest earned on CD.'s Total Revenue for Period

EXPENSES $ 144,858 1,067,136 $1,211,944

Administrative expenses Grant disbursements Total Expenses for Period

'Audit of the Foundations books will be completed by the end of April. Final audited figures will be available from the Foundation's office after May 15, 2003. If you would like a copy, please call the Foundation office at 376-1801 or 1-800-4496560. The unaudited information presented above is based on the Treasurer's Report for January 1 to December 31, 2002.

•

• GRANT DKSTRKBUTKON [-USTORY • LEGAL AID

.PAJ

LEGAL ED

$900,000 $800,000 $700,000 $650,000 $600,000 $550,000 $500,000 $450,000

$350,000 $300,000 $250,000 $200,000 $150,000

$50,000 $0

LJE:G. \1[, AKD 1"0 THE !POOR,

2002 !Hl G:HlLT GlUTS CENTER FOR ARKANSAS LEGAL SERVtCES (Center) $437,541 Providing qua/lty lega! representation to low-Income Ar/<Bnsans In Arkansas, Ashley. Bradley, Calhoun, Chlcot, Clark, Cleveland, Columbia, Conway, Crawford, Dallas, DeS/la, Drew. Feulkner, Franklin, Garland, Grant, Hempsteod, Hot Spring, Howard, Jefferson, Johnson, LaFayoue, Lincoln, Little River, Logan, Lonoke, Mil/or, Montgomery, Nevada, Ouachita, Perry, Plhe, Polk, Pope, Prairie, Pulaski, saline, Scott, Sebastian, Sevier, Union White and Yell counties. The Center continued 10 operate the HelpLine, a cenlralized telephone intake system to serve clients In the program's 44 counties. The Helpline was staffed by one full-time managing attorney, three lull-time scrooners (support staff), two full-time staff attorneys, and five part-time attorneys taking morning or afternoon shifts. The Helpline operated lor six hours per day live days per week, offering free legal advice and brief services to low-Income Arkansans. The Center continued to oller oul· reach activities to low-income Arkansans In lts service area. The following are a few examples of such activities: -Workshops were held at Senior Centors In Arkadolphla, Murfreesboro, Pike ond Pulaski counties.

-AltOfneys Betsy Hampton and Gr1f Stockley presented workshops on guardianstllps and alternatives 10 the Kinship Caregivers, a provider group jointly sponsored by the Arkansas Department of Human Services and the Centers for Youth & Families. -The Center continued Its partnership with the Centers for Youth & Families in providing education and training to relatives who care for the children of incarcerated parents. -Attorney Jennifer Thornton of the EI Dorado Branch Office represented the Center at community service providers fairs In Union and Columbia counties. -Attorney Ben seey, also of the Et Dorado office, spoke at a Court Appointed Special Advocates (CASAl training about dependency-neglect cases and how attornoys ond guardian ad lItoms represent children In these matters. -The American Association or Retired Persons (AARP) brought their National Legal Training Project to LIttle Rock, where several of the Center's stafl members and private pro bono attorneys were trained in Ihe Substantive Law & Skills and the TraIning of Trainers programs. Participants In the Substantive law program then served as trainers in other parts of the state, educating pro bono attorneys and Legal Services staff in those areas. -The MRP also hosted a symposium In LIttle Rock on building strategIc alliances between non-profit organizations inclUding Legal Services programs. -~WOfds to tho Wlse"-prcventatlve law workshops for the elderly-were hosted throughout the Center's servIce area.•The Center was awarded a grant funded by the Vlolenco Against Women Act ryAWA).

From October 1, 2001, through June 30, 2002, the Center opened 209 cases for victims of domestic violence and closed 90 of those cases successfully. Ms. Jean Turner Carter is Exacul/ve Director of!he Center.

LEGAL AID of ARKANSAS (LAA) $291,694 Providing quality legal representation to low-income Mansans in Baxter, Benton, Boone, CarroI/, Clay, Cleburne, Craighead, Crittenden, Cross, Fulton, Greene, Independence, Izard. Jachson, LBwrence, Lee, Madison, Marion, Mirsissippl, Monroe, Newton, Phillips, Poinsett, Randolph, St. Francis, Searcy, Sharp, Stone, Van Bu~n, Was/llngton, and Woodruff counties. -Sorbara Griffin served as the managing attorney for the Newport office of LAA, Ms. Griffin continued to specialize In housing cases and assisted another attorney with housing classes in West Memphis. She will soon facilitate these classes In the JonesborolNewport area. At her request, she was designated the CommunitY Educatioo Assistant for the Newport office service area. She will worK with the Community Education Coordinator to design and Implement public training on Issues affecting low-income communities. -Margaret Reger. managing attorney In the Harrison office for 20 years, worked as a solo attorney in the office, havlng lost her VAWA attorney when the grant was not renewed. -Renla Robinette, who was hired as an attorney In January of 2002, left lAA in December to return to the Department of Human SeJVlces. She left 60 pending cases, which were transferred to the m.maging otlorney. -Sherrl Stewort, managing attorney or the Mountain View orrlce, wrote e weekly newspaper article sharing legal information. Ms. Stewart is certilied under AOC protocols to represent children and parents In juvenile court proceedings. She also lunctioned as the area's Community Educatlon Assistant. -Donald llppett, who had worked for L.AA in the Jonesboro office, transferred to the FayetteVIlle office. He was then called to active duty in the Middle East lor an indefinite period of time. His cases were assigned either to the Equal Access to Justice Panel or to another staff attorney. -Jeanette Whatley, managlng attomey In the Wost Memphis office, also supervised the Delto Service Corps volunteer working In that office. She served as Director of the Housing Unit of legal Aid of Arkansas. SI1e is certified by the Arkansas Department or Finance & Admlnlstration to teach first-time homebuyers about homeowner issues such as closing, bUdgeting lor maintenance and repairs, etc. Ms. MOM Teague Is Executive Director of Legal Aid of Arkansas.

ARKANSAS VOLUNTEER LAWYERS FOR THE ELDERLY (AVLE) $25,000 AVLE is a joint venture of the Arkansas Bar Association, the states' two Legal Services programs, and the DepBT1ment of Human Services, Division of Aging and Adult Services. AVLE staff works closely with the Legal Services programs and tile Aroll Agenclos on Aging to Insure older Arkansans get the legal reprosrmtation they need. In 2002 over 559 low~incomo elderly Arkansans were assisted wah civil legal problems through the efforts ollhese 609 volunteer attorneys. Several of these attorneys assisted AVLE staff In making presentations to 23 senior citizen groups, Mr. Joet JotInson of FI. Smith received AVlFs Pro Bono Attorney of the Year Aword at the Annual Meeting of the ArKansas Bar AssocIation In Hot Springs. Ms. catherine Edwards is the Director of AVLE

$400,000

$100,000

2002 ARKANS.AS KOLT

l

Ll

EQUAL ACCESS TO JUSTICE PRO BONO PANEL (EAJP/LAA) $58,354 -LAA, Arkansas Volunteer Lawyers for the Elderly (AVlE). and the Whlte Rivor Area Agoncy on Aging joint· iy co-sponsored an event tilled "Legal Awareness for the Elderly" on September 12, 2002. The event was held in Sharp County, which has a large senior population. A similar program, jolntly sponsored with tho East Arkansas Area Agency on Aging, was held on November 19 in Jonesboro. ThaI seminar stressed the Importance of wllls and eslate planning, with emphasis on how these tools can be used to avold land loss. The last program of Ihe year was held in West Memphis In December. -The project held a community education event In Lee County (a historically underserved part of the service area) entitled -Things You Need to Know When Purchasing a Used Car." This seminar was also presented in Helene and was well-attended. A local newspaper covered the ovent. -lAA and Arkansas Volunteer Lawyers for the Elderly (AVLE) undertook a Joint project of community education and outreach to the elderly. AVLE received a seed grant from the American Bar Association lor this project, with the purpose 01 educating the elderly about free legal services for the poor. (An Arkansas legal needs survey found that "85% of low-income Ari<ansans are not aware of free Iega! services to the poor. i A leading Anl.ansas advertising agency will produce free media ads (air time

JT'RE lIPJ(ENT§

must be purchased) based on focus group input from a Journalism class at Arkansas Slate University and modeled after the media campaign developed by the Project lor the Future of Equal Justice. -A pro bono

procedure training was held In Helena In March and In Fayetteville in May.

-eLE training on guardianships,

offered al a reduced rate to private volunteer attorneys, was held in Uttle Rock in April and in Fayetteville and Wast Memphis In May. This training was in conjunction with the Resource Coordlnatlon and Training Unit. Ms. Susan Purtle served as Pro Bono Coordinator of the EAlP.

VOLUNTEERS' ORGANIZATION, CENTER FOR AR LEGAL SERVICES (VOCALS) $45,038 VOCALS won the prestigious Harrison Tweed Award' In 1985. The program was started In 1982 by tfJe Pulashl County Bar Association In an effort to help the Center for Mansas Legal Services meet tfJe legal needs of poor people In Pulaski County. Through a cooperative venture between eight centro! Mansas bar associations, individual attorneys and the Center, over 840 volunteer lawyers now provide free legal assfs~ tance to poor people in the Center's 44-county service area. -Poverty law Manuals were dislributed to all volunleer altorneys In January and February. -In February all pro bono coordinators for the Genter (siX) met together. Regular meotlngs of this group were held to facilitate the mergors with Western Arkansas legal Services and East Texas legal Services and to Increase referrals. -Guardianship training was held for volunteer attorneys In Pine Bluff, Fayetteville and West Memphis. -Mr. Clalbourne Patty was named VOCALS Attorney 01 the Year and he was honored at the annual dinner meeling 01 the Pulaski County Bar Association In May. -Mr. Ray Fulmer was named VOCALS Attorney of the Year for VAP and was honored at a luncheon 01 the sebastian and Crawford County Bar Associations in December. The annual dinner meeting 01 the Jefferson County Bar Association was also held In December In Pine Bluff. Mr. Kyle Havner and Mr. Horace Fikes were recogniZed lor their outstanding service to clients in that area of the state. -VOCALS exceeded both Its fundralslng and membership goals for the 2001-2002 year. Approximately $152,175 was raised In contributions from Puloskl County attorneys. -In July Ms. Mary Henry presented a two-session workshop at the Regional Elder Rights, Advocacy and Care Training sponsored by the Area Agency on Aging Ark~Tex Region In Texarkanna, Texas. She focused on the Center's outreach program ~Words to the Wise. ~ Over 100 Individuals attended, representing both providers and COflsumern. Information on the statewide web sUe and AVlE was distributed during the conference. --Words to the Wise- seminars were held in Glenwood, Hot Springs, Jacksonville, Monticello, Morrilton, Murfreesboro, ond Russellville. -All pro bono coordinators met In August and October as part of tha Statewide Pro Bono Task Force. Tho trlsk force doveloped rI link to the Arkansas Bar Association's web site so that attorneys may join the pro bono progrorn In their area on-line. The program's administrators we~ Ms. Mary Henry, Volunteer Services Coordinator, Ms. Patricia Young, Pro Bono Coordinator, and Ms. Shannon Eversole, VAP Pro Bono Coordinator.

PR JfECI'S TO 1l\1:PROYO; THE ADl1iLlNnSTRATlO,'f OF JUSTICE ARKANSAS BAR ASSOCIATION/ARKANSAS BAR COMMISSION ON DIVERSITY PRESENTS A JOURNEY OF FAITH, CONFIDENCE & EQUALITY ON THE ROAD TO JUSTICE $14,750 This grant, to the Mansas Bar Association, was to assist in efforts to Increase diversity of the Association by expanding the numbel'" and the level of partk:ipation by minority attomeys and judges. The longer-term goal of the project was to increase public conlidence In the justice system through Visibility 01 these minority attorneys and Judges at work in the system. In April the Arkansas Bar Association Commission on Diversity, a group composed of minority end majority attorneys. met to discuss goals and 0 timetable for accomplishing these goals. As part of this project, Mr. Bryan Stevenson, Director of the Equal Justice Initiative of Alabamo, delivered the keynote address at the 104th Annual Meeting of the Arkansas Bar Association. A diversity seminar was held by the Commission in October. Guest speakers included Virginia Grant 01 the Milwaukee-based consuiling firm Altman Weil, Inc., and Ray Carpenter, a partner and tax lIIigator In the Atlanta office of caporate giant Holland & Knight. The seminar was well attended. ABeD sponsored Us first job fair the following day at the UALR Bowen School of Law. ARKANSAS BAA ASSOCIATION, YOUTH EDUCATION, MOCK TRIAL COMPETtTION $18,800 Twelve judges (Including Chlcf Justice W.H. "Dub" Arnold). 36 lawyers, and numerous other volunteers staffed the 2002 mock trial effort with 26 high schools participating. The case concerned an Illegal soarch and seizure. Forrest City High School was the state champion for the second year In a row and went to the national competition in Minneapolis-51. PauL Attorney Phyllls McKenzie served as Chair of the Mock Trial Committee, and Rando Hicks was the Ar1<ansas Bar Association's coordinator for this protect. The participating high schools Included Barton High School, Bentonville High School, Booneville High School, Bradford Public School, Clarendon High School, Conway High School-East, Cutter Morning Star; Forrest City High School, Hamburg High School. Izard County High School, J.A. Fair High School, Jasper High School. Junction City High School, lake Hamilton High School, Molvern High School, Marion High School, Mountainburg High Schoo), Nettleton High SChool, Newport High School, Oak Grove High SChool, Oden High School, Pangburn High School, Parkvlew High School, Rogers High School, Russellvllle High School, and Tuckennan High School.

CENTERS FOR YOUTH AND FAMILIES, SPANISH EDITION OF PARENTAL RIGHTS HANDBOOK FOR INCARCERATED PARENTS $14,773 12,000 copies of the handbook were printed, 8,000 of the English version and 4,000 of the Spanish version.

Following ora some hlghHghts of this project: -Attorneys Clayton Blackstock and Frank Newell provIded tho legal writing for the handbook. Jenny Boshears served as the editor, and Michel Leldermann was the Spanish translator. A professor In the Spanish Department at UALR, Ms. leah Wilkinson, proofed the Sponlsh edition and commented favorably on Its readability. Robin Richards served as layout artist. Judge Joyce Warren permitted the Centers to eXC9!'Pt her booklet on dependency/neglect court procedures, and Legal Services lor Prisoners In San Francisco allowed their policy on Juvenile Immigrant Status to be excerpted for the Arkansas handbook. -The handbook wlll be distf1buted at statewide forums on children of prisoners to be conducted by the Centers. -Notice of availability of the handbooks will be given to state legislators, judges, prosecutors, public defenders, the Department of Corrections, the Arkansas Sheriff's Association, and other entities that work In the criminal justice community. -The handbook will be online through Centers for Youth and Families web site and AETN's new web site for mothers in prison. The Centers will also "market" placement of the handbook on several national web sites, including Family and Corrections Network In Virginia and the Federal Resource Center for Children 01 Prisonern In Washington. D.C.

Legal Services Help People Who Need Help

Volunteer Attorneys Assist Clients IIFor The Puhlic Good" The following legal matters we"e handledfor free by attorneys in p,';vate pmctice '0ho volunteered thei"legal services to p"o bono (meaning 'for the good") programs in the;" c01",,,,mities. While the cases al'e real, the *names al'e fictitious to p,'otect client identity.

GR

Attor1leys f01' the Legal Se,'vices p"ogmms b, A,'kansas haudled the followiug cases, While the cases al'e real, the *names are fictitious to p1'Otect client idetltity. ~

~ A Saline County client; Ms. *Critel; called finntic about ber 11-year-old son, *Marty.

Marty bad been told by bis bigb scbool counselor tbat be could not graduate with bis class in MIlY 2003 unless be attended SlImmer scbool. Due to bis filtber's instability ii, moving around, tbe SO" did not bave enough high school credits. The fnther told the son that he lOllS planning to move again. The son did not want to move and risk not being able to f51'rtduate. Additionally, the ex-busband ofMs. Critel; who had custody ofMarty, lollS refusing to allow the client any summer visitation. Tbe son indicated tbat his fiuher threatened to knock bis teeth down his tbroat if be even talked to his mother. Ms. G'iter WflS referred to a VOC4LS attomey, who immediately filed a petition fOr change ofcustody The eme'gency petition was successful. Marty is now living with his mother and attending summer school. Since livil1g in Saline COUl1ty, Mm'ty has done well il1 school, and a counselor has assisted bim with course selection, so he will be able to graduate. ~ 'OMs. Fraze,; an elderly woman il1 Monroe Cou"ty, whose home repairs hlld not been completed satisftctori/y, was referred to an EAJP volunteer attorney in Monroe County. BecallSe ofthe potentially ftegenerating nature ofthe case, AVLE could not make tbe reftrral. The attorney sued the contractor and got II favorable judgment for Ms. Frazer. ~

'OMs. Bates, a 41-year-old woman in Mississippi County, needed a glladianship over het severely disabled daughter, *janie. A private attomey fOr the EAJP project met with Ms. Bates and obtained a guardiambip fOr this fitl1lily. ~

*Mr. Hicks cOl1tacted the Hot Springs office ofthe Center fOr Arkansas Legal Services becallSe the local sheriffhlldjust served him with a Writ ofExecution 011 his trudl. Mr. Hicks needed the truck to keep his job. The facts ofthe client's collection problems were complex. In 2001, MI: Hicks entered imo a verbal agreemem with his landlord III exchange fOr bis work as apartment manager at tbe complex where he lived, she promised to reduce bis rent by olle-half Several montbs lllter, Mr. Hicks !Vaj hired by the milrOlld and irrfvrmed the landlord that he could no longer pelform the managemem duties. The landlord became angry and sued Mr. Hicks ill small claims court for back rent. The client did not seek legal counsel, and a judgment was entered against bim in the amount of$3,000. Afterward, lhe /andlord told MI: Hicks that she lOllS sorry and wOlild not collect tbe judgmem. Eight months later, Mr. Hicks gave notice to tbe landlord tbat he lollS movillg out. She became angry again and proceeded to execute on her judgment.

Tbe case WflS referred to a Garlalld County VOCALS attorney. Tbe volunteer attorney immediately filed II bankruptcy on bebalfofMr. Hicks, wbicb saved his truck and bis job.

*Alma lollS referred fOr flSsistance with representation in an order ofprotectioll hearing brought against her by her busband, *Tom. Sbe bad been physically beaten by him on ChristmllS Day. Alma sllffered a serious injury to be,. eye and jinctures to ber cheek and skull. She also S1IjJered blurred vision from trauma to the optic nerve. The police were called, and her husband was arrested.

Prior to the arrival ofthe police, Tom took the pllrtiel 16-momb-old child, *David, to his parents' hOllSe, and they would not give the child back to Alma. After Tom !VflS l'eletlsedfi'om jail the following day, be immediately contacted Victim Assistance and obtained a temporary OI't1er ofprotection against his wife and an order giving him cllStody ofbaby David The case WflS assigned to a staff attorney for the Center, who filed for a protective order against Tom. At tbe Court hellril,g, Tom's temporary order was dismissed, and the Cemer successfitlly gained custody ofDavidfOr our cliem, Alma. A divorce IIction is pending. ~

'OTonja, tbe motber ofa nille-year old child, *Maxxie, 10170 wflS receiving 551 and Medicaid bellefits fOr cerebral palsy, was notified by the Social Secllrity Administratioll (SSA) ofa $7,616 overpayment ofbenefits. SSA stated that the overpayment WIlS dlle to the foct tbat tbe motbe,. bad received cbild suppott, SSA planned to collect the ove,.paymentfrom the child's benefit checks.

Tonja sought the Center's help. The case was assiglled to a paralegal who appealed the overpayment. Evidence was presented fit the bearing that the mother had reported the child support to DHS, and tllere lOllS coufllsiol1 cllused by different reporting requirements for state andftderal benefit programs. Tonja lost her job wbile dealing witb tbe stress ofMllxxie's eigbt slllgeries. Tbe cbild lOllS also scheduled/Or additional s"''ge,.y for her eyes. SSA found tbat tbe client, Mllxxie, and 1m' motber weI'e witbout fault and that recovety ofthe overpayment would be a hfll'tlship. Tonja WIIS giveu advice on how to comply with the child support and iucome Ieporting requirements ofSSA and DH5. ~

Ms. *Broum, an unemployed mother ofa three-year-old child, was ,'eceivil1g services in the fOrm ofTEA and Medicaid for the child. She WflS required to Sigrl over rights to child support to the State, wbich is mllndated to establish paternity and collect support from the putative father ofthe child. Afrer being corltacted by the Office ofCbild Support Ellforcement, the putative father immediately cOlltacted Ms. Brown fllld threatened her. Sbe attempted to permade OCSE Ilot to pursue this matter because tbe filtber had a formidable criminal record, whicb included mam1nctz,,'iug and sellil1g drugs, possession offireamls and other assoned criminal activities. FurthemlOre, tbe cbild had been conceived when tbe putative fathe,; theu 27, fOrcibly raped the client when she was only 16 Legal Aid ofArkansas accepted the cllSe to pllrsue a "good cause" waiver fOr tbe client, which would allow her to receive benefits without being coopelntive witb OCSE in obtainillg a fllltemity m'del: Afier investigatioll, LAA acquired the putative father's criminal and police records, wbich were tben sellt to OCSE. Due to Ms. Brown's limited schooling and educatioll, LAA flSsisted bel' with making anotber application al1d witb an interview betweell her and OCSE. The ''good cause" waiver was tben f51'(lllted witbout tbe l1eed fOr litigation.

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The Arkansas IOLTA Foundation gives special recognition and thanks to the following financial institutions for paying an of 1.5% or higher AND waiving service charges on attorney IOLTA accounls:

aver~lge

interest

r~lte

Alliance Bank, Hot Springs Bank of Harrisburg Bank 01 Holly Grove

Bank of little Rock Citizens State Bank, Bald Knob Cross County Bank

First Community Bank, Batesville First Community Bank of Southeast Arkansas, Dermott First Financial Bank, EI Dorado

First National Bank, DeWitt First National Bank, Hope

First State Bank, Huntsville First State Bank, Warren

Forrest City Bank Heritage Bank, ,onesboro

Soulhern Bank of Commerce, Paragould Southern State Bank, Malvern Summitt Bank, Malvern

Merchants & Planters Bank, Clarendon

Unico Bank, Paragould

Union Bank & Trust, Monticello

First National Bank, McGehee First National Bank, Mena First National Bank, Mt. Ida

Diamond State Bank, Nashville Eudora Bank Fidelily National Bank, West Memphis

First National Bank, Paragould

Pinnacle Bank, little Rock

First National Bank, Wynne First State Bank, Crosset!

Simmons First National Bank, Pine Bluff Smackover State Bank

Newport Federal Savings Bank Peoples Bank, Paragould

Union Bank of Mena Warren Bank & Trust

BanCorpSouth, Alma BanCorpSouth, Camden BanCorpSouth, EI Dorado BanCorpSouth, Ft. Smith

BanCorpSouth, lillie Rock BanCorpSouth, Magnolia BanCorpSouth, Melbourne BanCorpSouth, Stuttgart Bank of Augusta Bank of Cave City Bank of Dardanelle

Community Bank 01 Cabot

Greers Ferry lake Bank, Heber Springs Heartland Community Bank, Camden

Regions Bank, Morrilton Regions Bank, Nashville Regions Bank, Osceola Regions Bank, Rogers Regions Bank, Russellville Regions Bank, Searcy Regions Bank, Texarkana River Valley Bank, Russellville Simmons First Bank, Dumas

Farmers Bank & Trust, C[arksville

Heber Springs State Bank

Simmons First Bank, Jonesboro

Farmers Bank & Trust, Magnolia First Arkansas Bank & Trust, Jacksonville

Helena National Bank

Simmons First Bank, lake Village Simmons First Bank, Lincoln

First Bank of South Arkansas, Camden First Community Bank, Conway First Community Bank, Jonesboro First Community Bank, Pocahontas

First State Bank of DeQueen First Western Bank, Rogers Firstar Bank, Morrilton

Firstar Bank, North little Rock

Madison Bank & Trust Malvern National Bank Marked Tree Bank

McGcheellank

Bank of Mountain View Bank of Pocahontas Bank of Prescott

First National Bank, Berryville First National Bank, Blytheville First National Bank, Crossett

Bank of Rogers Bank of Salem Bank of Slar City Bank of the Ozarks

First National Bank, DeQueen

Bank of Trumann Bank of Waldron

First National First National First National First National First National

Bank of Vellville Chart Bank, Perryville Citizens Bank, Batesville Citizens Bank, Booneville Citizens Bank & Trust, Van Buren Cleburne County Bank, Heber Springs Commercial Bank & Trust, Monticello Commercial National Bank, Texarkana

First National Bank, Ash Flat

Firsl National Bank, Dierks First National Bank, El Dorado

First National Bank, FI. Smith Bank, Helena Bank, Marianna Bank, Mtn. Home Bank, Springdale Bank of Eastern Arkansas,

Forresl City First National Bank of lawrence

North little Rock

Arvest Bank BanCorpSouth, Hope Bank of America, Sf. louis, MO Bank of Arkansas, Tulsa, OK Tllis listing is based on inlerest

Bank of McCrory Chambers Bank, Danville Elk Horn Bank & Trust, Arkadelphia Farmers & Merchants Bank, Prairie Grove r~l'es

do orda;" and estabUsl, this COllstitl,tion for the United States of

Simmons First Bank of Arkansas,

Russellville

h this Constitntion fol' the United States ofA'llel'ica, -PREAMBLE e the People of the UI/ited States, ill order to form a more perfect re domestic Tranquility, Provide for tile

COl1W'1Oll

defense, 0111'

to the pOOl"

United Bank, Springdale

Regions Bank, Hot Springs

U5Bank, Cincinnati, OH

~ .For

student loans

and scholarships '" Gthel" programs

Union Planters Bank, Osceola

for special projects that improve the administration Ofjustice

Regions Bank, Memphis, TN _

Mcilroy Bank & Trust, Fayetteville Peoples Bank & Trust,

on active attorney IOLTA accounts as reported to ti,e Foundation by individual banks in 2002.

eneral Welfare, flIld secnte the Blessings of Libertl) to ourselves and

al/d seCllre the Blessillgs of Liberty to om·selves al1d

Union Planters Bank, Forrest City Union Planters Bank, Marshall

Mountain Home

establish Justice, insure domestic Trallquility, Provide for the

ofjustice. Grant

Union Planters Bank, Wesl Memphis Union Planters Bank of Central Arkansas, Clinton Union Planters Bank of Northeast Arkansas, Jonesboro

First Security Bank of Mountain Home Hibernia National Bank, New Orleans, lA

~re People of tile United States, ;', order to

administration

Regions Bank, Benton Regions Bank, Clarksville Regions Bank, Clinton Regions Bank, Conway Regions Bank, EI Dorado Regions Bank, Harrison

First Arkansas Valley Bank, Dardanelle First National Bank, Rogers

. CONSTtTUTlON

that improve the

Simmons First Bank, Searcy

Thank you to these other participating IOLTA banks for paying interest in 2002: Arkansas Slate Bank, Siloam Springs

~he People of the United

encouraging projects

Twin City Bank, Norlh little Rock Union Bank of Benton

Regions Bank, Little Rock

fOl' tile comma" tiefeuse, promote tJregenernl Welfare, and secure the

Arkansa1'lS and by

TrustBank, Mounlain Home

First National Bank of Paris First Security Bank, Searcy

tiomes

needs of low~income

Petit Jean State Bank

Regions Bank, Jonesboro

ill order to form a 1Il0re pelfect Union, \'::::::!~~:;;

target the civil legal

Piggott Stale Bank Pine Bluff National Bank Porlland Bank, Monticello Pulaski lIank & Trust, lillie Rock Regions Bank, Batesville

Counly, Walnut Ridge

Peopl

programs that

... FOI" legal aid

National Bank of Commerce,

«;he

',pl"Omote tIle general Welfate, and secure tI,e Blessings ofLibettl)

Springdale Bank & Trust Superior Federal Bank, Fort Smith The Bank of Jonesboro

First Federal Bank of Arkansas, Harrison First National Bank, Ashdown

·berty to ourselves and our posterity, do otdaill alld establish this

increase access to justice by funding

Memphis, TN Onellank, Little Rock

First Delta Bank, Marked Tree

Provide for the conU1l01l defense, promote the general Welfare,

mission is to

ptiorities are:

Bank of England lIank of Eureka Springs Bank of Fayetteville Bank of lake Village

Bank of Delight, Nevada County

I

tates ofAmerica. -PREAMBLE TO THE U.S. C

Simmons First Bank of EI Dorado Simmons First Bank of Northwest Arkansas, Springdale SouthBank, Manila

Merchants & Farmers, Dumas Merchants & Planters, Newport National Bank of Arkansas,

O~IVO~I

£006-1:00";

tates, in o,'der to f01"11I a 1IIore pelfect Union, establish lustice,

The foundation's

Community Bank of Fayetteville Community First Bank, Eureka Springs Community First Bank, Harrison Corning Savings & loan Farmers and Merchants Bank, Stuttgart Farmers Bank, Greenwood Farmers Bank, Hamburg Farmers Bank & Trust, Blytheville

First Arkansas Valley Bank, Russellville

First Service Bank, Clinton First State Bank, Conway First State Bank, lonoke

Arkansas [OLTA Foundation MllSSllON ~ STA\TEMlENT

A special tllank you to tile following financial institutions for paying interest AND waiving service charges on attorney IOLTA accounls:_

American State Bank, Jonesboro American State Bank, Osceola American State Bank, Paragould Arkansas Diamond Bank, Glenwood Arkansas National Bank, Bentonville

.dIO

The Capital Bank, Little Rock

Metropolitan National Bank, little Rock MidSouth Bank, Jonesboro

Delta Trust, Hamburg Delta Trust & Bank, Little Rock Diamond State Bank, Murfreesboro

gnO~:J<En][][O

•

2002 ]IOJLTA. BANJ[( HONOR ROLJL

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tates ofAlIletica. -PREAMBLE TO THE U.S. CONSTITUTtON

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B ,":K. HOJ. OR ROLL

The Arkansas IOLTA Foundation gives special recognition and thanks to the following financial institutions (or paying an average interest rate o( 1.5% or higher AND waiving service charges on attorney IOLTA accounts:

Alliance Bank, Hot Springs Bank of Harrisburg Bank of Holly Crove Bank of Little Rock Citizens Stile Bank, Bald Knob Cross County Bank Deltl Trus~ Hamburg Deltl Trust & Bank, Little Rock Diamond Slate Bank, Murfreesboro Diamond Slate Bank, ashville Eudora Bank Fidelity National Bank, West Memphis

Fir<t Community Bank, Batesville Fir<l Communily Bank of Southeast Arlcansas, Dermott First Financial Bank, EI Dorado First National Bank, DeWitt Fir<1 National Bank, Hope First ational Bank, McGehee First ational Bank, Mena Fir<t National Bank, Ml. ldo First National Bank, Paragould Fir<t National Bank, Wynne Fir<t Stlte Bank, Crossett

Fir<t State Bank, Huntsville Fir<t Slate Bank, Warren Forresl City Bank Heritlge Bank, Jonesboro Merchants & Planter< Bank, Clarendon Metropolitln ational Bank, Little Rock MidSouth Bank, Jonesboro ewport Federal Savings Bank Proples Bank, Paragould Pinnade Bank, little Rock Simmons Fir<1 National Bank, Pine Bluff Smackover Stlte Bank

Southern Bank of Commerce, Paragould Southern State Bank, Malvern Summitt Bank, Malvern The Capitll Bank, little Rock Unico Bank, Paragould Union Bank & T~ Monticello Union Bank of Mena Warren Bank & Trust

A speciallhank you to the fol/owing financial institutions (or paying interest AND waiving service charges on attorney IOLTA aCCDunts:_ American Stlte Bank, Jonesboro American State Bank, Osceola American Slate Bank, Paragould Arlcansas Diamond Bank, Clenwood Arkansas National Bank, Bentonville BanCorpSouth, Alma BanCorpSouth, Camden BanCorpSouth, EI Dorado BanCorpSouth, Fl. Smith BanCorpSouth, little Rock BanCorpSouth, Magnolia BanCorpSouth, Melbourne BanCorpSouth,Stuttgarl Bank of Augusta Bank of Cave City Bank of Dardanelle Bank of Delight, Nevada County Bank of England Bank of Eureka Springs Bank of Fayetteville Bank of lake Village Bank of Mountain View Bank of Pocahontls Bank of Prescott Bank of Roger< Bank of Salem Bank of Stir Cily Bank of the Ozark< Bank ofTrumann

Bank of Waldron Bank of Yellville o..rt Bank, Perryville Citizens Bank, Batesville Citizens Bank, Booneville Citizens Bank & Trust, Van Buren C1ebume County Bank, Heber Springs Commercial Bank &Trust, Monticello Commercial National Bank, Texarkana

Community Bank of Cibot Community Bank of Fal~tteville Community First Bank, Eureka Springs Community First Bank, Harrison Corning Savings & loan Farmers and Merchants Bank, Stuttgart Farmers Rank, Greenwood

Farmers Bank, Hamburg Farmer< Bank & Trust, Blytheville Farmers Bank & Trust, Clarksville Farmers Bank & Trust, Magnolia First Arkansas Bank & Trust, Jacksonville Fir<t Arkansas Valley Bank, Russellville Fir<t Bank of South Arkansas, Camden First Community Bank, Conway

Fir<t Community Bank, Jonesboro first Community Bank, Pocahontas Fir<l Delta Bank, Marked Tree Fir<t Federal Bank of Arkansas, Harrison first ational Bank, Ashdown Fir<t National Bank, Ash Flat Fir<t National Bank, Berryville Fir<t ational Bank, Blytheville Fir<t National 8ank, Crossett Fir<t alional Bank, DeQueen Fir<t National Bank, Dierks Fir<t National Bank, EI Dorado Fir<t National Bank, Fl. Smith Fir<l ational Bank, Helena First alional Bank, Marianna Fir<l National Bank, Mtn. Home Fir<t alional 8ank, Sp<ingdole Fir<t ational Bank of E.slem Arlcansas, Forrest City Fir<t National Bank of lawrence Counly, Walnut Ridge Fir<t National Bank of Paris Fir<t Security Bank, Searcy

First Service Bank, Ointon First State Bank, Conway Fir<t State Bank, lonoke Fir<1 State Bank of DeQueen First Western Bank, Rogers Firstar Bank, Morrilton Fir<tlr Bank, North little Rock Creer< Ferry lake Bank, Heber Springs Heartland Community Bank, Camden Heber Springs State Bank Helena National Bank Madison Bank & Trust Malvern National Bank Marked Tree Bank McGehee Bank Merchants & Farmers, Dumas Merchants & Planters, Newport National Bank of Arkansas, North little Rock National Bank of Commerce, Memphis, TN OneBank, little Rock Petit Jean Stlte Bank Piggott Stlte Bank Pine Bluff National Bank Portland Bank, Monticello Pulaski Bank & Trust, little Rock Regions Bank, Batesville Regions Bank, Benton Regions Bank, Clarksville Regions Bank, Clinton Regions Bank, Conway Regions Bank, EI Dorado Regions Bank, Harrison Regions Bank, Hot Springs Regions Bank, jonesboro Regions Bank, little Rock Regions Bank, Memphis, TN

Regions Bank, Morrilton Regions Bank, ashville Regions Bank, Osceola Regions 8ank, Roger< Regions Bank, Russellville Regions Bank, Searcy Regions Bank, Texarkana River Valley Bank, Russellville Simmons First Bank, Dumas Simmons First Bank, Jonesboro Simmons Fir<t Bank, lake Village Simmons First Bank, lincoln Simmons First Bank, Searcy Simmons First Bank of Arkansas, Russellville Simmons Fir<t Bank of EI Dorado Simmons First Bank of Northwest Arkansas, Springdale SouthBank, Manila Springdole Bank & Trust Superior Federal Bank, Fort Smith The Bank of Jonesboro TrustBank, Mountlin Home Twin City Bank, North little Rock Union Bank of Benton Union Planter< Bank, Forresl City Union Planter< Bank, Mar<hall Union Planter< Bank, Osceola Union Planter< Bank, West Memph~ Union Planter< Bank of Central Arkansas, Ointon Union Planter< Bank of ortheast Arlcansas, Jonesboro United Bank, Springdole USBank, Cincinnati, OH

Thank you to these other participating IOLTA banks (or paying interest in 2002: Arlcansas State Bank, Siloam Springs Arvest Bank BanCorpSouth, Hope Bank of America, SI. louis, MO Bank of Arkansas, Tulsa, OK

Bank of McCrory Chambers Bank, Danville Elk Horn Bank & Trust, Arkadelphia Farmers & Merchants Bank, Prairie Grove

Fir<t Arkansas Valley Bank, Dardanelle First National Bank, Rogers Fir<1 Security Bank of Mountain Home Hibernia National Bank, New Orleans, LA

_ Mcilroy Bank & Trus~ Fayetteville Peoples 8ank & Trusl, Mountain Home

This listing is based on interest rates on active attorney IOLTA accounts as reported to the Foundation by individual banks in 1001.

April 2003

Counselor: The Arkansas Legal Directory, your Blue Book of Attorneys since 1936, is the Official Directory of the Arkansas Bar Association.

Because of this agreement, you enjoy the following benefits: You can purchase space in the blue biographical pages and have this information put on our new Arkansas Web Site (www.legaldirectories.com) for the following rates: A sole practitioner would pay $240.. .Iess than $5 per week.

A two member firm would pay $288... less than $6 per week.

Additional attorneys would cost $48 each... less than $1 per week.

Field of practice listings in both the Blue Book and the Web Site would be $30 each... less than 60 cents per week.

Place a listing in the Arkansas Blue Book, and you will receive a complimentary directory.

If you are interested, please complete and return the form below to us OR call us at (800) 447-5375 extension 105.

Sincerely,

~

Francis X. Sandweg, Sales Manager Legal Directories Publishing Company P.O. Box 189000 Dallas, TX 75218-9000

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has a nonexclusive license. 12 An example of the different treatment by the courts involves a nonexclusive patent license. Most courts interpreting Section 365(cX1) in the context of a nonexclusive patent license apply a • hypothetical test' for determining whether assumption by a debtor may occur: Whether, under the applicable law, the licensor could refuse performance from "an entity other than the debtor or the debtor-in-possession. -13 Thus, because federal patent law generally makes nonexclusive patent licenses personal, most courts effectively preclude a debtor-licensee from assuming a license without the licensor's consent. 14 A minority of jurisdictions, however, apply a different rule, known as the "actual test,' which requires the court to conduct a • case-by-case inquiry into whether the nondebtor lis) 'forced to accept performance under its executory contract from someone other than the debtor party with whom it actually contracted.'""

D. Perfection of Security Interests in Intellectual Property When counseling clients on the procedures involving security interests, the "file early, file often, file everywhere" advice is usually given. When the collateral involves intellectual property, however, such advice should still be given but may not be all that accurate.

With respect to perfecting a security interest in a patent or trademark, there is no requirement in the Patent Act or the federal trademark law ' • that a security interest be filed in the United States Patent and Trademark Office (PTO). Section 261 of the Patent Act requires the recording of a trans-

fer of fights of ownership, not" mere licenses," and a security interest In a patent that does not involve a transfer of a fight of ownership IS just a license" Nevertheless, It is still a good idea to file a security interest with the PTO. At least one district court found that while the Patent Act did not expressly state that a creditor must file with the PTO in order to perfect its security interest, such a recording would protect the assignee against the claim of a subsequent lien creditor. 18 In contrast, the Copyright Act does specifically provide for the filing of security interests in the Copyright Office, Due to the fact that registration of the copyright is not mandatory, a split in authority has developed. This division centers on the treatment of registered versus unregistered copyrights.

When dealing with a registered copyright, the courts are fairly consistent in requiring that the perfection of a security interest be dependant upon the filing of such in the Copyright Office." When the copyright is unregistered, most courts still hold that the filing of a security interest in the Copyright Office is a requirement for perfection. Some courts, however, have held that a security interest in an unregistered copyright need not be recorded in the Copyright Office. 20 With the splits in authority regarding whether to file a security interest in the PTO or the Copyright Office, the best advice would be to "file early, file often, file everywhere," even though such filing may not be necessary.

Conclusion As society's dependence on advanced technology grows, businesses are taking

Dickerson Law Firm, PA. Seeking Anorneys Dickerson Law Firm, P.A., Arkansas' leading debt relief firm and largest personal

injury/disabiliry firm is seeking artorneys for bankruprcy and personal injury. Excellem salary and benefirs. Opporruniry for growth and aclv3ncemem. Training available.

greater care to secure their rights in new discoveries or innovatIons, thus making it common for the prinCipal assets of any given company to consist of Intellectual property.

The increased Significance of intellectual property assets in bankruptcy cases has started to generate qUite a great deal of case law. However, many scenarios have not been explored In published opinions.

Whether representing licensors or licensees, lawyers are finding new challenges in servicing their clients. Having a firm grasp of the unique positions facing those parties engaging in intellectual property agreements will aid in accomplishing the ultimate goal: providing the best possible protection for your clients.

Endnotes 1 Section 365 of Title 11 of the United States Code.

2 11 U.s,c. § 365(a), 3 Cinico/a v Scharffenberger, 248 F.3d 110, 123 (3d Cir, 2001); Kaler v Craig (In re Craig), 144 F.3d 593, 596 (8th Cir. 1998); In re Helms Construction & Development Co" Inc., 110 F.3d 1470,1472 (9th Cir. 1997).

4 See Encino Bus. Management, Inc. v Prize Frize, Inc. (In re Prize Frize, Inc.), 32 F.3d 426, 428 (9th Cir. 1994); 5 11 U.S.c. § 365.

6 11 U.s.c. § 365(b).

7 11 U.S.c. § 365(k).

8 11 U.s.c. § 365(dX1); University of Connecticut Research & Development Corp. v Germain (In re Biopolymers, Inc.), 136 B.R. 28-29 (Bankr, Conn. 1992) (exclusive patent license 1 Throughout this Paper, the term "trustee" will also refer to the debtor-in·possession in a Chapter 11 reorganization unless expressly stated otherwise. 2 473345v6 rejected by operation of law upon trustee's failure to seek to assume license within 60 days,).

9 11 U.S.c. § 365(d)(2), 10 11 U.s.c. § 365(nX1)(B).

11 11 U.S.c. § 365(nX2).

12 11 U.S.c. § 365(cX1) 13 In re West Electronics Inc., 852 F.2d 79, 82 (3d Cif. 1988) (emphasis in original).

14 See In re Catapult Entertainment Inc., 165 F.3d 747,750 (9th Cir. 1999).

15 Institut Pasteur v Cambridge Biotech

Send resumes to: Gail D. Ashmore, Dickerson L·nv Firm, P.A., 110 Woodbine Intellectual Property Continued on page 37

Hor pring', AR 7190 I, Fax: 501 321-9848 VoL 38 No. 21Spring 2003

TI,e Arkansas Lawyer

2S

,;it www.arkbar.com

W. Seaborn Jones is past presi-

Beth Deere, Williams & Anderson LLP, Chair of the Annual Meeting Committee, announces some of the out-ofstate speakers scheduled to appear at this year's Annual Meeting.

Rodney E. Slater is the former

dent of the National Conference

Secretary of Transportation and

of Bar Presidents and a crusader

the third Arkansan to hold a

for professionalism.

position in a President's Cabinet.

In 2001 he joined Patton Boggs as a partner in its public policy group in Washington, D.C.

John Payton, a partner with

Vic Snyder represents Arkansas'

Wilmer, Cutler & Pickering in

Second District in the United States

Washington, D.C., recently

House of Representatives. From 1991

argued the University of

to 1996 he served as an Arkansas

Michigan's admission policy

State Senator.

before the Supreme Court of the United States.

Stephen A. Saltzburg, a distin-

Graham Thatcher is a renowned

guished professor at George

actor who will brilliantly portray

Washington University, is a lead-

Clarence Darrow and Sir

ing authority on the law of evi-

Thomas More at this year's

dence and in the fields of crimi-

annual meeting.

nal procedure, criminal law and trial advocacy education.

CLE CLE CLE CLE CLE CLE CLE CLE CLE CLE CLE CLE CLE CLE CLE

Arkansas Bar Association ClE Calendar May 2003 16-17 7TH ANNUAL ENVIRONMENTAL LAw CoNFERENCE

Inn of the Ozarks, Eureka Springs

lune 2003 11-14 105TH ANNUAL MEETING

Arlington Hotel, Hot Springs, AR 23 - 27

BEST OF eLE UALR Bowen School of Law

7th Annual Joint Environmental Law Conference

• May 16-17, 2003

• Inn of the Ozarks Eureka Springs, AR 10.5 Hours CLE credit (includes 1.0 ethics hour)

•

Program Chair: Kelly M. McQueen MEETING DATES HOUSE OF DELEGATES June 14, 2003 BOARD OF GOVERNORS August 22-23, 2003

For morc information, contact Virginia Hardgrave, Arkansas Bar Association, 800-609-5668,

501-375-3957, vha<dgrave@arkbar.com OR CHECK OUT THE CLE PAGE ar www.arkbar.com

Vol. 38 No. 21Spring 2003

The Arkansas lawyer

29

Professionalism Task Force Report

RECLAIMING THE CORE VALVES OF THE LEGAL PROFESSION

T

he Arkansas Bar Association's Professionalism Task Force is working on a number of peojeers and ideas [0 improve professionalism among 3norneys in our stare. This column represems jusr one of those projecrs. and the concept is (0 provide Association members with a forum in which to relate experiences and anecdotes mat give a "real-life" spin on the manner in which rhe practice of law should be conducted. OUf belief is that it would carry morc weight as a means of changing me mindser and the behavior of practicing lawyers if they were presemed with examples of siru3tions in which an anomey's actions exemplified professionalism or the lack thereof. It would then aUow us an opportunity [0 learn from the behavior of others and [0 think [0 ourselves, "'If I were in that situation, then I would 3Ct as honorably as he or she did," or alternatively, "'I would never do what he or she did.' The anecdotes would be written for publication without the names of those involved and would be presented as a means of teaching rather than as a means of complaining. The idea is not [0 engage in lawyer bashing, but [0 raise awareness.

The Professional Reform Initiative (PRJ). which includes lawyers, judges and nonlawyer members, is a project of the National Conference of Bar Presidents, and it has adopted the following as its mission statement: "'To increase public trUSt and confidence in the justice system and maintain the rdevance of the legal profession in that system by promoting and nurturing effective professional reform." As its first project, PRl has undertaken ro emphasize truthfulness, honesty and candor as constituting "the core of the core values of the legal profession." This initiative is based on the view that untruthfulness by lawyers-to whatever extent the problem exists-requires the systematic and long-term arrention of the organized bar. Some would say that zealously representing the interest of their clients justifies a certain deviation from the

truth, and others would say that their misstatements are merely acts of puffing or rools in negotiating. As former ABA President Jerome Shestack said in a 200 I Law Day speech entitled Rrfkcrions On Lying and Th< Honm '-awy". "Lying is real--.omething that we encounter daily in our personal lives and in our practice and affects the nature of our profession and our personal character."

If we are going ro change the perception of the public and the practice of some attorneys, then we need to begin with a new commitment to telling the truth.

When the PRJ first presented it's project on truthfulness, honesty and candor, some of the smaller bar associations responded that they did not have any such problems in their states. Other bar associations responded that the problem was tOO big and could not possibly be fLXed. We believe that the problem in our state is closer to the smaller end of the spectrum. Most of the arrorneys that we deal with are honest, trustworthy and professional. However, there are exceptions, and the challenge is to reclaim the core values of the legal profession for all Arkansas attorneys. for this first anicle, the committee solicited stories from the other members of the Professionalism Task Force. We submit the following anecdotes on lying: The Scare Tactic: An Estate I. received a large sum of money from a nursing home lawsuit, and the family members entered into a Family Settlement Agreemenr regarding the diStribution of the proceeds.

Subsequently, the sisrer of the personal r~p足 resentative of the Estare decided thar she was nor happy with the amount of money she received, and she retained an artorney to assist her in her arrempr to obtain more money. Rather than approach.ing the personal representadve with a rational basis for paying his client more money, the arrorn~y prepared and filed a petition. signed by the sisrer, which alleged fraud upon the court, upon the beneficiaries, and upon the Estate, all allegedly perperuated by the personal rep-

resentative. Nor only will the artorney and his client be unable to prove any of the allegarions contained in the perition, bur both he and his client will have losr any credibility they might otherwise have had with the probate judge. and they have completely alienared the personal representative. \Vle can only imagine thar this scorched-earth approach was an artempr to scare the personal representative into offering more money ro the disgruntled sisrer.

2. Changing the Story: In a dispute over the validiry of a Lease Agreement. the parry occupying the premises wrore a lener to the artorney for the landowner and admirred that he did nor have a lease on [h~ property.

Subsequently, in a response to interrogatories in connecrion with lirigarion over the property, the same person responded in a verified response thar "'whar I meant was, I don'r have a new lease on the property, but the old lease is still in effect." This attorney has convinced his client to lie in this case probably to avoid Summary Judgment.

How would an arrorner convince his client to sign a pleading under penalty of perjury when rhe client knows that the responses are lies? The only way that we can see is that the attorney convinced the client rhar it was accepcable, and that "'everybody does it.".

Pkase send any commnlts 011 this articu alld a,,) stories or mlecdota for futun! articles to tlu PrOftSSiOIlAliml Task Force via tlu Arkausa.s Bar Association, 400 W Markbam Strut, Little Rock. Arkallsas

72201.

Vol. 38 No. 2/Spring 2003

TIle Arkansas la,,,,,r

31

WHAT ARE YOU LOOKING FOR •

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Lawyer DisciplinalY Actions not discussed until much lacer. The panics had disagreements as ro whether and when the legal fees wefe paid, and gOt involved in a subsequent problem when the Harpers had a dispute with a local auto deaJer over purchase of a vehkle, and a claim by Nickle that the Harpers used his name without permission in the dispute with the dealership.

The Commirree found Nickle did nO( adequately explain [0 the Harpers the basis for his fees to them, char he was seeking additional fees from them, and would use their non-payment of these additional fees as a basis for withdrawing as Mrs. Harper's attor-

ney.

CAUTIONS: JAMES SCOTT ADAMS, Bar No. 81001, of Morrilton, Arkansas, in No. 2002-144, 011 a referral from the Arkansas Supreme Courr in CR-2002-353, Carl Gene McGhee v. Stau, by Findings and Consent Order filed February 7, 2003, was cautioned for violaring Rules 1.3 and 8.4(d) for failing to perfect his client's appeaJ after timely filing a notice of appeal, and for causing a delay of three years in the resolution of his cliem's appeal.

FREDYE MAC La G ALFORD, Bar No. 76\65, of Texarkana, Texas, in No. 200211\, on a complaint by Elizabeth Millwood,

by Findings and Consent Order filed March 4, 2003, was caurioned, fined $1,000, and assessed COStS of $50 for violating Rules 1.4(b) and 8.4(d). Ms. Long represented Ms. Millwood in a divorce in which Mr. Alford represented Mr. Millwood. Long and AJford became good friends during the short course of the case. Long failed ro disclose this developing social relationship (Long and AJford later married) to Ms. Millwood before Long filed a motion ro withdraw, so Ms. Millwood had no chance to make an informed decision about concinuing her representation by Ms. Long. The manner in which Ms. Long handled her motion to withdraw did not give Ms. Millwood reasonable notice so she could have had the chance to objccr ro the motion, if she so desired.

Clarendon, Arkansas, in No. 2002-092, on a complainr by Keith Grayson, by Findings and Consent Order filed January \7,2003, was cautioned and ordered to pay restitution of $400 for violating Rules 1.6(a), 1.9(a), 1.9(c), 1.16(d), 3.3(a)(1), 3.4(c), 8.4(c), and 8.4(d). Mr. Carruth was hired to represent Mr. Ho on a contingent fee contract in a personal injury case in early 1997. Carruth filed suit for Ho. The comract caJled for a percentage of recovery, but if Carruth was discharged by Ho, then Carrurh would have a lien against any recovery based on his time expended ar $100 per hour. Ho discharged Carrurh in June 2001, and Carrurh filed both a lien claim for $22,366.42 (based on $150 per hour) and filed an intervention in his own client's pending lawsuit, making ceHain disclosures therein that revealed confidential client information. The order entered in August 2001, relieving Carruth as Ho's counsel directed him to deliver a copy of his extensive case fiJe to Mr. Ho for use by Ho and his new counsel, when retained. Mr. Carrurh failed to deliver rhe file copy. Mr. Grayson, Ho's new counsel, had to go to some lengths, over six months, and pay our $400 to ger a partial copy of rhe file, before Carruth allowed Grayson ro take the file and make a full copy in Lirtle Rock. Carruth filed an amended lien claim for $\5,953.92, based on the correct $100 hourly rate, only after the Office of Professional Conduct pointed out his use of the incorrect $150

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MICHAEL W. FREY, Bar No. 96022, of Camden, Arkansas, in No. 2002-140, on a complaint by Yvonne Young, by Findings and Order filed January 30, 2003, was cautioned, fined $1,000, ordered ro pay restitution ro Young of $800, and assessed costs of $50, for violating Rules 1.1, 1.3, 1.4(a), 1.4(b), 3.2, and 8.4(a). Young hired Frey and paid him the $800 fee she said he quored to file a Chaprer 7 bankruprcy for her, which he filed in March 2002. Frey failed to timely file schedules for her and the case was dismissed in June 2002. Young was unable to contact Frey to get information on her case. Frey responded that he quoted a fee of $850 and thar Young failed to provide him certain information needed to complete her paperwork. The Committee found no documentation to suppOrt Frey's claims.

STEPHEN KYLE HUNTER, Bar No. 85077, of Pine Bluff, Arkansas, in No. 2002-097, on a referral by the Arkansas Supreme Courr in No. CR-1994-113, Lenzy McCullough v. State, by Findings and Consenr Order filed March 5, 2003, was cautioned for violaring Rules 1.3 and 3.4(c).

Mr. Humer failed to timely file the record in his client's appeaL ROBERT D. KLOCK, Bar No. 76066, of Lowell, Arkansas, in No. 2002-131, on a

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T. DAVlD CARRUTH, Bar No. 87027, of Vol. 38 No. 21Spring 2003

TIle Arkansas la'ryer

35

President's Report from page 3

\

the judicial independence of the Courts. A repon with a proposed plan has been submirred by the Commirree and will likely be considered by the House of Delegates on June 14th. The Committee has been ably chaired by Elizaberh Danielson.

The Arkansas Bar Commission on Diversity has had an active year. In September, it held its first seminar on diversity and the foUowing day, held a job fair. It is currently studying other ways to improve diversiry in the legal profession and our Association. It is co-chaired by Troy Price and Petcr Kumpe.

The Sustaining Members Commirree. headed by Jack Davis. has done an outstanding job this year. The goal was to have 300 sustaining members which would be a 20 percent increase over the highest previous record. The final rotal achieved is 302.

Our revised website at www.arkbar.com is a product of the Website Oversite Committee whose members did an outstanding job. Special thanks to 2002-03 Chair Karen Halbert and 2001-02 Chair Tim Holthoff who understand the inner workings of the !mernet, etc.

It is risky ro make predictions in a column written almost rwo months before its publication, bue OUf Membership Development Committee, so ably chaired by Mark Hodge. will lead us in breaking last year's membership record of 4633.

Beth Deere. our Annual Meecing program Chair, has been doing an excellent job of organizing the program and recruitjng speakers. The program should be one that our members will find informative, helpful to their practice, and enjoyable. The Arkansas Bar Association Annual Meeting is recognized across the coumry as being one of the most outstanding programs.

LaSt, but certainly not least of those mentioned in this column, is the effort of our Access to justice Working Group chaired by Dean Charles Goldner. Th is new project in Arkansas is designed to create a permanent enriey that works to ensure ongoing funding and resources to meet the need for legal representation for the poor. There arc a number of programs that deal with some aspect of providing such services. There are still many gaps in coverage, and funding from year ro year is uncertain. It is essential that the needs for legal assistance be met to truly provide justice for all - and to assure mat we continue to have our system of laws. A proposal from the Working Group is being

Intellectual Property from page 25 presemed to the Board of Governors and House of Delegates, which may request the Supreme Coun to create the new entity.

At least 15 other committees and task forces have been active on your behalf this bar year. And many sections have been active, including the production of qualiey CLE. Their important work is appreciated. lr has been a very great privilege and a pleasure to know and work with so many members of the Arkansas Bar Association this year. The willingness, the volunteer work and the cooperation of our colleagues is a living testamenr to our profession and to the Association. I especially have appreciated working with the officers, members of the Board of Governors, House of Delegates, committees. task forces, section chairs and their members, and our dedicated and hard working staff. Much more will be accomplished by and for the members of the Bar Association in the future .•

16 17 18

19

20

Corp., 104 F.3d 489, 493 (1st (ir.), cert. denied, 521 U.S. 1120 (1997).

Lanham Act, 15 U.s.c. § 1051, et. seq., See In re Cybernetic Services, Inc., 252 F.3d 1039 (9th Cir. 2001).

See City Bank and Trust Co. ~ Otto Fabric, Inc., 83 8.R. 780, 782 (D. Kan. 1988).

See National Peregrine, Inc. ~ Capitol Federal Savings and loan Ass'n (In re Peregrine Entertainment, ltd.), 116 B.R. 194 (C.D. Cal. 1990).

See Aeraeon Engineering Inc. ~ Silicon Valley Bank (In re World Auxiliary Power Co.). 244 B.R. 149 (Bankr. N.D. Cal. 1999).

FREE TO MEMBERS OF THE ARKANSAS BAR AsSOCIATION Arkansas VersusL1W provides a unique online libtary of legal materials that is only available as a benefit through membership in the Arkansas Bar Association. This specialized material includes Arkansas Statutes, judicial Opinions, Anorney General Opinions, Court Rules, and recent decisions from the U.S. District Courts for the Eastern and Western Districts of Arkansas. Arkansas judiciaJ Opinions date from 1900. Anorney Ceneral Opinions currently go back to 1991 and will soon include all opinions from

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Vol. 38 No. 2/Spring 2003

TI,e Arkansas LalIYer

37

Sustaining Members of the Arkansas Bar Association for 2002-03 Sustaining mmzbns as ofMarch 31.2003.

William Adair Gene D. Adams, Jr. Michael L AJexander H. William Allen Overton S. Anderson Philip S. Ande"",n E1izaberh Andreoli Keith Arman Ben F. Arnold Jess L Askew, II I Virginia Atkinson Brem Baber James R Baber

Donald H. Bacon James A. Badami Nancy H. Bailey Kenneth B. Bairn Charles W Baker Darryl E. Baker Les R. BaJedge Charles A Banks Ban}' D. Barber Gary Bark" Marcia Barnes W. Christopher Barrier Alllhony W. Bartels Sherry P. Barcley Paul B. Benham, III Evans Bemon

M. Stephen Bingham Donald E. Bishop James B. Blair Ted Boswell WIlliam H. Bowen Robert B. Branch Debbie D. Branson William C. Bridgforth Frat E. Briner Edward W. Brockman, Jr. William B. Buergler Richard K. Burke Larry W. Burks William Jackson Butt, 11 Paul Byrd Julie M. Cabe Robert D. Cabe John C. Calhoun, Jr. Jerry L. Canfield Douglas M. C=on Robert M. Cearley, Jr. Mark B. Chadick John S. Cherry, Jr. Sandra Wilson Cherry Robt:n Chowning Wdliam M. Clark, Jr. H. Murray Claycomb John R. Clayton Ralph M. Cloar, Jr. Randy Coleman Robert C. Compton Jonann Coniglio

Barry E. Coplin

BenCo~

ate Coulter

Kevin A. Crass Michael A Croeken James E. Crouch H. E. Cummins F. Thomas Curry James D. Cypert Thomas A. Daily Elizabeth Danielson Charles D. Davidson. Sr. Boyce R. Davis John A. Davis, III Steven B. Davis T Manin Davis Robert T Dawson J. c. Deaoon Jack W Dickerson M. Jane Diekey Michelle H. Dillard Philip E. Dixon David M. Donovan Darrell D. Dover Winslow Drummond Davis Duty B. Michael Easley Don R. Elliott. Jr. George D. Ellis John R. Elrod Stephen Engstrom Women Epes John C. Everett Mike Everett Jimmy L Featherston Oscar Fendler' Victor A. Reming Jim Pat Flowers John A Fogleman Robert M. Ford Kay \Vest Forrest Larry R. Froelich Price C. Gardner Allan Gates C. Alan Gauldin Jeffrey J. Gearhart Pamela B. Gibson Sam E. Gibson \YI. Den< Girchel David M. Glover Charles W. Goldner, Jr. Roy A Goodwin J. Douglas Gr.unling Albert Gr:aves. Jr. Albert Gr:aves, Sr..

John C. Gregg Joseph \YI. Gregory Ronald L. Griggs David K. Gunti Michael E. Hale Donis B. Hamilton Frank S. Hamlin David K. Harp

Kenneth A Harper James E. Hartis Ron D. Harrison Dave WISdom Harrod Charles L Harn~1I Richard F. Hameld William D. Haughl Brad L Hendricks Robert L. Henry, 111 Sam T Heuer Gwendolyn D. Hodge Curtis E. Hogue \X1illiam R. Holland Cyril Hollingsworth Don Hollingsworth RonA Hope Robert E. Hornberger Eugene Hum Annabelle Climon Imber Michael E. Irwin Alston Jennings Bradley D. Jesson Glenn W. Jones, Jr. Louis B. Jones, Jr. Roben: L. Jones, Jr. Roben L Jones, III Jim L. Julian Philip E. Kaplan Sean T Keith TomJ. Keith William H. Kennedy. III Judson C. Kidd Warren O. Kimbrough' Mike Kinard Peter G. Kum~ Jerry Larkowski David . ~r Sam Lasc:r John T. Lavey Ike Allen Laws, Jr. Sranley A. Leasure Samuel E. Ledbener Robert O. Levi Alice F. Lightle John G. Lile, III D. Price Marshall, Jr. WLiliam A. Martin David R. Marrh~ Gail Matthews Stephen A. Manhews RonaldA May S. Hubert Mayes, Jr. Bobby D. MeCall~rer Bobby MdJaniei Phillip H. MeMarh loner D. McMillan Jack A. Me wry Russ Meeks Lance R. Miller Marie-B. Miller Peter A. Miller Chalk S. Mirchell

H. Maurice Mitchell Laun Alchley Mitchell Michael W. Mirchell Ark Monroe James M. Moody Harry Truman Moore Richard . Moore, Jr. W. Frank Morledge Srcphen E. Morley Rosalind M. Mouser William Kirby Mouser Elizabeth R. Murray Ralph C. Murray Timorhy J. Myers E. Sheffield e1son Raymond L. iblock Joh nny L. ichols Wycliff isbet R. Gary Nuner Debby Thetford ye Bobby l.<t Odom Conrad T Odom D. John Ogles Hugh R. Overhoh Charles C. Owen Charles R. Padgham Nicholas H. Panon C1aibourne W. Patty. Jr. Richard L. Peel B. Jeffery Penee Nc:aI R. Pendergraft Edward M. Peniek Donna C. PettUS E. Lamar Petrus John V. Phelps Jim Phillips Norwood Phillips John B. PI<gge Frank A. Poff, Jr. David M. Powell WLiliam I. Prewett Thomas B. Pryor Donald C. Pullen Janet L. Pulliam John I. Purtle Louis L. Ramsay, Jr. Brian H. Ratcliff Gordon S. Rolher, Jr. J. Thomas Ray Ben E. Rice Elton A. RiC"o'es. JJI Gregory . Robinson Charles B. Roscopf Charles D. Roseopf Kent J. Rubens John L Rush Donald . Ryan Ted H. Sanders Charles L. Schllllllberger Don M. Schnipper Isaac A. Scon, Jr. John S. Selig

Frank B. Sewall rknnis L hackleford J. Bmer Sharp III Srephen M. Sharum J. L Shaver, Jr. Steve Shults James Marlon Simpson, Jr. H. Edward Skinner Ted C. Skokos Douglas O. Smith. Jr. James W. Smith Laura H. Smith Robert D. Smith, III David Solomon James D. Sprott Thomas S. Stone William R. StringfeUow John F. Stroud, Jr. \"(Ijlliam H. Sutton W. H. Taylor Rex M. Terry William L Terry Robert F. Thompson Danny Thrailkill Cindy Thyer John R. "r.OOale Fred S. Ursery James R. Van Dover David B. Vandergriff John C. Wade Wyman R. Wade, Jr. Eddie H. Walker, Jr. Bill H. Walmsley Bill Walters Chris Wallhall John D. WatsOn limothy F. WatsOn. Sr. Bud B. Whetstone David H. WLiliarru Robert H. Williams W. Jackson Williams, Jr. J. Gaston \'V'illiamson' Mike Wilson William R. Wilson, Jr. Meredith Wineland Teresa M. \'V'ineland Carolyn B. Witherspoon Tom D. \Vomack Marsha C. Woodruff G. Alan \'(Iooten Roben R. Wrighr, III Truman E. Yancq Damon Young Paul B. Young Robert E. Young Steven S. Zega • d«eased

Vol. 38 No. 2/Spring 2003

n,e Arkansas la,\)'er

To become n SlUlntlltllg member, plen.se contact Bnrbflrn Tarkington at (501) 375-4606 or email blflrkington@llrkbnr.com.

39

In Memoriam Bar Association exemplified her dedication to juvenile justice. She repeatedly chaired

the Juvenile Justice Srandards Committee, receiving the Golden Gavel Award in 1985 for her service. She was also a member of the Association's Execucive Committee and House of Delegates.

She served as Chair of the Arkansas advi-

sory committee to rhe U.S. Commission on Civil Rights and on the board of directors of rhe League of Women Voters of Washingron County, Planned Parenthood of Eastern Oklahoma and Western Arkansas and rhe

Unjrarian Universalist Faycncville.

Fellowship

of

Mcivor was also active with Arkansas Advocates for Children and Families, and she helped start the StateS highly regarded "Race for rhe Cure," which raises money for breasr cancer research and education.

She is survived by her husband, Mort Gite!man of Fayeneville; her mother, Roberta Mcivor of Roanoke, Va.; a daughter, Lynn Ohl of Hot Springs; a son, Bruce Wood of CarbondaJe, Colo.; three stepsons, Neil Gitelman of Laramie, Wyo., Eliot Gire!man of Mendon, Mich., and Ronald Gitelman of New Haven, Conn.; a brother; a sister; and five grandchildren.

EUGENE O'DANIEL Gene O'Daniel, 57, passed away January 1 in his home, the day he was to be sworn in as Ozark city attorney.

A native of WaJdo, the 6'8" O'Daniei graduated with a degree in economics from Hendrix College where he was a four-year letterman on me varsity basketball team.

Later he earned his law degree from the University of Arkansas School of Law. He served as assistant United States attorney for the Eastern District of Arkansas from 1973 to 1978. From 1987 to 1998 he was corporate counsel for Stephens Diversified Leasing.

O'Daniei was a longtime member of the Arkansas Bar Association, serving six years in its House of Delegates. He also served on the Association's Judicial Nominations Commince, the Federal Legislation and Proceedings Committee and the Public Information Committee.

Also a member of the Pulaski County Bar

Association, Q'Daniei was a stalwart in its semiannual "Gridiron" theatre production.

He spent many years practicing law in Little Rock before moving to Ozark last year.

An article in me Arkomas DemOCrdlGazer" quoted O'Daniel's friend Bill Lancaster as saying, "He just moved on a whim to a small town, and when he gOt there, he couldn't believe what he had found. He was so thrilled."

While living in Ozark, he served as grants chairman for Foothills Little Theatre. He was also a member of Ozark First United Methodist Church and church choir, the local Rotary club and the local Kiwanis club.

He is survived by two children, Ginger and Connor.

and as president of the board of directors of Carnegie City Library.

He is survived by his wife, Emily.

ROBERT L. ROBINSON, JR. LEM C.BRYAN Lem C. Bryan, 94, of Fort Smith died Jan. 2 in Fort Smith. A native of Chananooga, Tenn., he received his LL.B. degree from the University of Arkansas in 1938.

Before entering private practice, he served as chief deputy prosecuting attorney for the 13th Judicial District as well as in the Arkansas House of Representatives.

Called to active duty in 1942, he served throughout the war and was discharged with the ran.k of Commander. From 1946 to 1947 he served as attorney for the Civil Aviation Administration for Arkansas.

He returned to law pracrice in Fort Smith, later becoming a partner in Bryan & Finhugh. \Vhile a member of the Arkansas Bar Association he served on a number of commirrees, including serving as Chair of the Professional Ethics and Grievance Commiuee.

He also served as president of the Sebastian County Bar Associarion. He was a member of the American Bar Association, Kappa Sigma Fraternity, the Medical Center Advisory Committee Board of Trustees of the University of Arkansas and the Executive Commitree of the Arkansas Municipal League.

He also served as chairman of the Arkansas State Professional Ethics and Grievance Committee, as senior warden of the vestry of St. John's Episcopal Church,

Robert Lafayette Robinson, Jr., 60, of Little Rock died Jan. 6.

Robinson's long legal career began III 1967 when he graduated from Vanderbilt University Law School with his LL.B. A native of Newport, he served in rhe Arkansas Army National Guard as a first lieutenant in the Judge Advocate General's Corps from 1967 to 1974.

He was senior partner in me Little Rock law firm of Robinson, Staley, Marshall & Duke.

Robinson's membership in professional organizations was extensive. He was a longtime member of the Arkansas Bar Association, serving on its Antitrust & Trade Regulation Committee, Eminent Domain Commirree and Annual Meetjng Comm路 Ittee.

He was also a member of the Pulaski County Bar Association, the Volunreer Organizarion for Central Arkansas Legal Services (VOCALS), the Arkansas Trial Lawyers Association, the Defense Research Institute and the American Bar Association.

He was a pasr presidenr of rhe local Exchange Club, a community service organization; board chairman of the Cenrral YMCA; the 1983 Volunteer of rhe Year for me Central Branch of the YMCA; and a member of the Country Club of Little Rock.

He is survived by his wife, Mary Jane Jamison Robinson of Little Rock; his mother, Sina Reaves Robinson of Newport; twO

Vol. 38 No. 2/Spring 2003

n,e Arkansas Lawyer

41

ArkansJs BJr FoundJtion McmoriJls Jnd Honorariums The Arkansas Bar Foundation acknowledges with gratefi,1 appreciation the receipt ofthe fOllowing memorial, honorarium and scholarship contributio1lS received during the period january 1, 2003 through March 20, 2003 IN MEMORY OF O. C. "GOOGIE" BURNSIDE John and Marjem Gill

IN MEMORY OF EDWIN DUNNAWAY

IN MEMORY OF MARCIA McIVOR Max and Judge Ellen Brandey James A. Mclarty Dr. Roben R. and Judge Susan Webber Wright Judith Gray

Judge and Mrs. Robert H. Dudley

IN HONOR OF JUDGE ROBERT F. FUSSELL Katie and Win Drummond

Comer Boyette. Jr.

IN MEMORY OF JOHN R. ELDRIDGE James G. Mixon

IN MEMORY OF DAVID MARTIN MOUSER Judith Gray Leigh Baim Mansberg and Danny Mansberg

SCHOLARSHIPS Betty and Marrin Gilben Judge James M. Moody Wilson & Associates, PLLC

IN MEMORY OF OSCAR FENDLER Mr. 311d Mrs. Wm. Jackson Burt II Jack C. Deacon Judirh Gray Barbara Halsey Roscopf & Roscopf, PA. Dr. and Mrs. Joseph Rosenzweig Judge Elsijane T. Roy Miriam & David Solomon Fred S. Ursery Dr. Robert R. and Judge Susan Webber Wrighr

IN MEMORY OF ALBERT GRAVES Comer Bayeree, Jr. Judge and Mrs. Roben H. Dudley

IN MEMORY OF ROBERT HARGRAVES Judge John and Marierta Stroud

IN MEMORY OF HUGH W. HARRISON, JR. Judirh Gmy

IN MEMORY OF CLINT HUEY

IN MEMORY OF GENE O'DANIEL

BIRTHDAY, ANNIVERSARY OR RETIREMENT CELEBRATION? REMEMBER, THE ARKANSAS BAR FOUNDATION...

Judge Annabelle Clinton Imber Louis B. Jones, Jr. B. Jeffery Pence

IN MEMORY OF EDWARD B. D1LWN,JR. The Arkansas Bar Foundation receives

Judirh Gmy Don Hollingsworth

contributions in honor of individuals on a regular basis. To make a dona-

IN MEMORY OF JAMES H. McKENZIE

tion, the donor makes the check

Judge and Mrs. Robert H. Dudley

payable

IN MEMORY OF ROBERT L. ROBINSON, JR.

Judith Gray

IN MEMORY OF KNOX KINNEY Judith Gray

line or cover letter the details of the

Stephen Engstrom Judge Annabelle C1inron Imber James A. Mclarty Dr. Roben R. and Judge Susan WebberWright

honorarium ("in honor of

James G. Mixon

"

along with the address for the hon-

oree). In turn, the Foundation will acknowledge receipt. A letter will be

IN MEMORY OF KENNETH E. SUGGS B. Jeffery Pence

senr to the honoree advising him or her of the contribution and who gave me

IN MEMORY OF THELMA WILLIAMS

donation in his or her honor.

Judge William R. Wilson and Cathi Compton

IN MEMORY OF J. GASTON WILLIAMSON

These

contributions to the Arkansas Bar Foundation are tax deductible.

CONTRIBUTIONS MAY BE MAILED TO: ARKANSAS BAR FOUNDATION,

Judge and Mrs. Robert H. Dudley

IN MEMORY OF MS. CAPPI LINDSEY

[he Arkansas Bar

Foundation and nOtes on the memo

Comer Boyett, Jr.

IN MEMORY OF JUDGE WARREN O. KIMBROUGH

[0

400 WEST MARKHAM

IN MEMORY OF JUDGE HENRY WOODS

UTILE ROCK, ARKANSAS 72201

Comer Boyen, Jr. Vol. 38 No. 2/Spring 2003

TIle Arkansas 1.<Jwyer

43

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