VOL.38_NO. 3_ SUMMER 2003

PUBLISHER

Arkansas Bar Associatioll Phone: (501) 375-4606 Fax: (501) 375-4901 Homcpagc: www.arkbar.com E-Mail: aconaway@arkbar.com EDITOR

Alllit COllaway GRAPHIC DESIGN

Sara lAndis EDITORIAL BOARD Philip E. Kaplan.. Chair Judge Wiley A. Branton. Jr. Leigh M. Chiles Mihan Fine, 1I Morton Gitelman J. Leon Holmes Stuart P. Miller Christopher Travis Brian Anthony Vandiver David H. Williams

The Arkansas

awer Vol. 38, No, J

features

OffiCERS President Thomas A. Daily

8 Marbury v. Madison: A Sovereign People Governed bylaw

Board oC Governors Chair D. Price Marshall President-Elect Fred S. Ursery Immediate Past President H. MUrTay Claycomb

John DiPippa

Secretary-Treasurer William A. Martin Parliamentarian

Cindy Thyer Young Lawyers Section Chair Paul Dumas Executive Director Don Hollingsworth Associate Executive Director Judith Gray

BOARD OF COVERNORS Steve Bingham Anthony Black Judge Wiley Branton.. Jr. Niki Cung Tom Curry Boyce Davis Jeannette Denham Lance Gamer Robert "'Skip" Henry Gwendolyn Hodge Jim Julian Philip Kaplan Sean Keith Chalk Mitchell Frank Morledge Rosalind Mouser Donna Pettus James M. Simpson,. Jr. James D. Sprott Eddie Walker Robert E. Young liAISON MEMBERS

Judge Ted Capeheart

Steve Shults

Ron D. Harrison Don Hollingsworth

Jack McNulty Carolyn B. Witherspoon

Tht ArkAnSlls Lntlytr (USPS 546-(40) is published quarter路 ly by the Arkansas Bar Association. Periodicals postage paid at Little Rock, Arkansas. POSTMASTER: send address changes to TIlt Arhnsll5 Linvyer, 400 West Markham. Little Rock,. Arkansas 72201. Subscription price to non-members or the Arkansas Bar Association 525.00 per year. Any opinion expressed herein is that of the author, and not nt"CeSSllrily that of the Arkansas Bar Association or TIle ArkallSus Lawyrr. Contributions to The Arkallsas Lawyer are welcome and should be sent in two copies 10 EDITOR, The Arkansas Lawyer, 400 West Markham, Little Rock,. Arkansas mOl. All inquiries regarding advertising should be sent to Editor, T'htArb"sas LuW'!Jt'T, at the above address. Copyright 2003. Arkansas Bar Association. All rights reserved.

12 Attorney Discipline and Ethics Update

JUDICIARY

Stark Ligon

16 A Change in the Air (Quality Standards): Potential Impact on Arkansas Walter G, Wright, Jr.

President's Feature 22 Thomas A. Daily: second路Generation President

Contents Continued on Page 2

The Arkansas

awer Vol 38. No.3

in this issue Judicial Advisory Opinions

28

CLE Calendar

29

Lawyer Disciplinary Actions

30

2002-2003 Arkansas Bar Foundation!

Arkansas Bar Association Annual Award Recipients

38

In Memoriam

40

Arkansas Bar Foundation Memorials and Honorariums Classified Advertising!Ad Index

columns President's Report Thomas A. Daily

3

42

Executive Director's Report Don Hollingsworth

5

44

YLS Report Paul Dumas

26

G::D

1111 Arkansas Bar AssociaLion

400 W. Markham Little Rock, Arkansas 72201

HOUSE OF DELEGATES Delegate District 1·5E: Ro~rt F. Thompson, 1II Delegate District 2·5E: K:nharine C. Wilson Delegate District ]-5E: Dennis Zolper, Jdf Purye:u. Robert S. Jones Delegate District 4-5E: }("rhie A. Kimbrdl Delegate District 5·5E: Kent J. RulKns Delegate District 6-5E: Christopher M. Morlcdgc Delegate District 7-5E: Buck Gibson Delegate District 8-S£: Howard L Manin Delegate District 9-SE: Jim Pal Ao~rs Delegate District Io-SE: David L. Sims. Anthony A.Hilliard Delegate District I I-SE: Richard L Roper Delegate District 12-5E: James A. Hamihon Delegate District 13-SE: Robin J. Carroll, James McMenis

Delegate District 14-SE: Manhew Kimmel, Amy Fr~man

Delegate District 15-SE: Bryan T. McKinney, Todd M. Turner

Delegate District 16-SE: John T. Vines, Janie M. Evins

Delegate District 17-SE: James Ralph Jackson Delegate District I-NW: Edwin N. McClure, Lisa L. Kelley, Hardy Croxton, Jason B. Kelley Delegate District 2-NW: lim Snively, Matthew R. Durrett, Chris R. Reed. April Rye Shy, Crisri Beaumont, David J. Whitaker, Michael J. Hodson, Charles Harwell, Raymond Niblock, Susan Duell·Mitchell Delegate District 3-NW: Niki T. Cung, Jason A. Martinez, James O. Cox, Ben H. Shipley, Shannon Blan, TImothy Sharum Delegate District 4·NW: Daniel B. Thrailkill Delegate District 5-NW: Steve B. Davis Delegate District 6-NW: John T. Tatum II, Roy Beth Kelley Delegate District 7-NW: Rhonda K. Wood, Danny M. Rasmussen

Delegate District 8-NW: Ted Sanders

Delegate District I-e: John C. Wyvill, Gusler Edwards, Br.ad Hendricks, David W. Sterling, 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, Colene D. Honorable, C. Tad Bohannon, JerI)' Larkowski, Amy Lee Stewart, Danyelle J. Walker. Brian Vandiver, Jeffrey Weber, Mark McCarty.

Randall S. Bueter, Jay Taylor, Beth Deere, Leon Johnson, Marcella Taylor, Rebecca Denison, Stephen Bingham Law Student Representatives: Ben Wulff, University of Arkansas School of Law; Tasha Sossamon, UALR William H. Bowen School of Law

2 The Arkansas lawyer www.arkbar.com

_Report I Thomas A. Daily

State of the Arkansas Bar Association: Looking Forward Often this space affords an incoming president opportunity to announce new and exciting initiatives designed to improve the administration of justice or to enhance the quality, dignity or diversity of the profession. This is nOt rnac We have more pressing things, at least at this moment, than new projects. We must finish business started and insure the Association's future.

Please consider this page to be son of statcof-rhe-Bar-AssociHion message.

In the last few years, under the able leadership of reeem past presidents. we have accomplished much. We successfully codrafted and co-sponsored Amendment 80 to the Arkansas Constitution, providing the framework for an efficient, modern threetiered court system for our state. At the same time we significandy amended the Association's own constitution and bylaws, creating a workable governance strucrure, with appropriate division of authoriry between rhe Association's Board of Governors and its House of Delegates. We have also reformed the Association's once myriad secrions, committees and rask forces to the extent that we are truly a model for voluntary bar associations nationally.

We have revised our dues structure to provide the option for members' cost of membership to be relared to their income from law practice and, rhus, their abiliry ro pay. We have formed and nurtured the Arkansas Bar Commission on Diversity (ABCD) to explore and enhance opportuniries for women and minority lawyers and, at the same time, enhance the entire profession by making it more representative, demographically, of our communities. To date ABeD has successfully sponsored both a diversity seminar with nationally important presenters, and a job fair. Those baby steps. will be followed by others. for as long as it takes, because diversity is a goal of ours for the long term.

Though proud of our accomplishments, we acknowledge that none are completely

finished. We continue ro work with the courts and the Legislature to finish implementing Amendment 80. This year we will draft and present to the membership additional minor amendments to our constitution and bylaws to make our organizational Structure even better. One of those will authorize the House of Delegates to endorse proposed amendments to the United States and Arkansas constitutions, thus making it possible for the Association to reaCt ro and effectively weigh in upon such issues as a liberalization of legislative term limits, in a timely manner. We will continue to review our committees with an eye roward combining any whose work have become duplicative. We will also look for ways to help each of our sections become and remain self supporting, self governing subsets of the Association, each fulfilling its mission to produce ClE seminars, publications or both on a regular basis.

Our most recent accomplishment is the ultimate member benefit, Arkansas VersusLaw. We are now live online, providing each of you with a vast law library, accessible twenty-four hours a day, every day of the year, from any personal computer with an inrernet connection. Arkansas VersusLaw is dearly the finest legal research benefit provided by any association of lawyers in the world. Today, with a single search, you can simultaneously find all of the pertinent authoriry conrained within the Arkansas Consritution, Code and court rules, decisions of Arkansas' appellate Courts going back to 19001 Arkansas' Attorney General opinions, every decision of the Eighth Federal Circuit and recent decisions of Arkansas Federal District Couns. all with official citations and pagination. Other included databases provide the cases and statutes of the remaining forry-nine states and a complete federal appellate COUft library. All this has a marker value of hundreds, if not thousands of dollars per year ro each of us. Yet, its cost is included within

Our most recent

accomplishment is the ultimate member benefit, Arkansas Versus Law. We are now live online, providing each of you with a vast law library, accessible twenty-four hours a day, every day of the year, from any personal computer with an internet connection. our modest Association dues. We will continue [Q improve this anchor member benefit with additional Arkansas-specific content. More importantly, we will help our members become masters of the computer technology needed (0 effectively use it.

Recently, in response ro rhe need for effective advocacy before the least experienced legislature in recent Arkansas history, we chose to employ a full-time lobbyist to help achieve fair legislative treatment of arrorneys, judges and judicial insritutions, and avoid unwarra.nted and ill advised alterations to rhe substantive law of our srare. I am proud of the fine work done by that legislative advocate, pasr president Jack McNulty, and by rhe Association's Legislation Commirtee, chaired so ably by Charles Schlumberger. Despite the fact rhat the session was dominated by the hopelessly divisive issue which bears the misleading label "tort reform," we were effective in accomplishing whar we set out co accomplish. The Legislature enacted our entire package of sponsored legislation. Even more important, most members of the General Assembly now trust and respect the

Vol. 38 No. 31Sull1mer 2003

President's Report

Continued on page 42 TI,e Arkallsas Lawyer

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Arkansas VersusLaw @ www.arkbar.com Free online legal research to members of the Arkansas Bar Association

Executive Director's Report Don Hollingsworth

Mark Your Calendar for June 9-12, 2004 Anocher terrific Annual Meeting has concluded, with 1,045 attorneys registered along with hundreds of funily members.

Thanks [0 the many Association members who helped make the Annual Meeting so very successful, especially Annual Meeting Chair Beth Deere and 2002-03 President Murray Claycomb.

For at least one member this was his 49th consecutive Annual Meeting, and I know of other members with consecutive srreaks of similar length. Another "senior" member remarked how imponanr the meeting is [Q the legal profession in Arkansas and his regret that he did not arrend during the first twO decades of his legaJ career. Still another anomey told me the meeting exceeded all of his expectations, this being the first time he attended more than one day of the meeting.

And it was positive to see so many young attorneys in attendance.

Over 1.000 members at the Annual Meeting is a Big Deal. Bet\....een 20% and 25% of our membership attends each June.

Most state bar associations are pleased if their annual meeting attendance garners 3% or 4%, and some associations have discontinued such meetings. [At 4.710 members we are a small. voluntary state bar association as state associations go.]

When lawyers are together for education, fun and net\....orking. qualities such as civility. mutual respect and substantive compe~ tence are increased within our profession.

The beneficiaries are us and our clients.

June 2004 is scheduled to be a joint meeting with the Arkansas Judicial Council (the joint meeting occurs in even numbered years). We are grateful that the state court judges will be joining us in 2004, especially since a joint meeting promotes good bench/bar relations and enables more attorneys to attend the Annual Meeting. I visited with three attorneys at this year's meeting who had to leave Hot Springs for court

email: dhollingsworth@arkbar.com

Over 1,000 members at the Annual Meeting is a Big Deal.

Between 20% and 25% of our membership attends each June.

hearings. and there were many a({orneys who could not attend at all due to trials.

We appreciate the support by the many sponsors of the Annual Meeting. Without their support, the registration fee would have to be increased significantly to maintain the qualiry and variery of ClE programs and other events. By the way, over 50 hours of elE were offered, with twO or three tracks throughout the first three days.

Law finns are some of our primary sponsors. If your firm wishes ro be a sponsor ar the Annual Meeting, please contact us.

Also, members may be an individual sponsor by becoming a Sustaining Member of the Association since part of the $100 annual contribution supports different segments of the meeting.

Work on the 2004 Annual Meeting is already underway. Member suggestions are always welcome. President Tom Daily recruited Brian Ratcliff to be the Annual Meeting Chair, and they work closely with Judith Gray. our Associate Executive Director.

In dosing, I cannot resist mentioning that for the first time in memory. there were no complaints about the elevators.

Arkansas VersusLaw Tip How does one know the Arkansas Court Opinions go back to 1900 and the Attorney General Opinions go back to 1991 [soon will be complete back to 1973]?

Simply click on the red HELP button at the top right of the page. A box will appear on the top left of the page.

Click on Complete Library Directory, and select the content you want to "date."

NEW ETHICS ADVISORY OPINION The Professional Ethics Committee of this Association has issued an advisory opinion on criminal defense practice by a law partner of a district judge. All Advisory Opinions are located at www.arkbar.com.

Vol. 38 No. YSullllller 2003

TI,e Arkansas Lawyer

5

The POWER of ~ Arkansas VersusLaw provides a unique online library of legal 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, Arkansas Constitution, 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 to 1991 and will soon include all opinions from 1973 to the present. Your Association and Versus Law will be expanding the Arkansas legal products during the temainder of 2003.

Arkansas VersusLaw also includes decisions from the U.S. Supreme Court, federal circuits, all state appeUate 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-VERSUSLA\V). Customer service hours are M-F. 9:00am. - 7p.m., and Saturday noon to 7:00 p.m. Customer service represenrarives will answer your questions about this online research product.

Arkansas VersusLaw is a joinr product of Versus Law and the Arkansas Bar Association, and it is a trade name used with the permission of VersusLaw.

Practice Handbooks

Legislative Advocacy Network

Have it }'Our W0yf Customize Your Library ofAssociation Handbooks to Suit Your PersonaL Style

Association Members are encouraged to Participate

Select from among prinr offerings including the Arkansas Form Book. Domestic Relations, Bankruptcy, Probate Law, Handling AppeaJs or Real EsÂŁate Tide Standards in Arkansas.

in this Electronic Network by clicking on Legislative Advocacy Network at www.arkbar.com.

Pardcipams will receive Alerts on Pending Bills which affect the Legal System.

OR Opt for the simplicity of a CD ROM conraining anyone or any combination of the following: Arkansas Form Book, Bankruptcy, Probate Law, Handling Appeals in Arkansas or ReaJ Estate Tirle Standards in Arkansas. The handbooks are also available in the Arkansas Secondary Law Menu from LexisNexisTM at www.lexis.com.

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

6 TIle Arkansas La"ycr

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Vol. 38

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o. YSummer 2003

The Arkansas Lawyer

7

Marbury v. Madison A Sovereign People Governed by Law

by John DiPippa

Partisan Wrangling over the Courts Mosr lawyers know rhe background to Marbury v Madison, 5 (I Crancl;) 137 (I803). The House of Representatives chose the presidem after the birrerly conrested election of 1800 between John Adams and Thomas Jefferson. The Adams administration tried to pack the federal courts as it lefr office. They hurriedly prepared, signed, sealed, and delivered judicial commissions.

John Marshall, on his way out as secretary of state bur on his way in as Chief Justice, signed the commissions. Some commissions were nor delivered before Adams' rerm expired.

Jefferson refused to deliver these commisSIons. William Marbury, an Adams appointee ro a justice of the peace position, filed a writ of mandamus in the Supreme Court to force James Madison, Jefferson's secretary of state, to deliver Marbury's commission. Madison refused ro accept service or arrend the hearing. The Jefferson-controlled Congress canceled the 1802 Supreme Court rerm to prevent the Courr from hearing Marbury's case.

u.s.

Judicial Statesmanship Chief Justice John Marshall's opinion in

Marbury declined jurisdiction by first asserting a greater power: the power of federal courts ro declare actions of the other federal branches unconstitutional. Although the idea of judicial review had been around since the 1600's and was widely accepted in

JOHN DiPIPPA is a Profmor ofLaw III tbe University ofArkausaJ lit Litt/~ Rock Wlillill1n H. Bowen School of Law. Ht joined tbe

UALR fitClilry in /983 and uach~s COfIJtitutional l...aw, Legal Projtssion. Law & Rtligion, Interviewing 6CounItling. and AIt~mative Displlle R~solutioll.

the United States, Marshall's opinion is the first to squarely face the question.

Modern-day cynics see Marshall's opinion as an example of political manipularion of the law. But politics is in the eye of the beholder. Marshall's mcrhod is as important as his conclusion. His analysis demonstrates how the rule of law operates under our constiru[Ion.

The Importance of Chief Justice John Marshall John Marshall reasoned to his conclusion from a powerful vision of the Constitution and the rule of law that we take for gran red today. Marbury established that courts, nor the political branches, are in the best position to guarantee that law is the final aurhority over individuals.

Marshall's opinion meditated on the narure of power in a constiturional democracy. Marshall grounded his constirutional vision in a fundamcntaJ principle: only the people are sovereign and they govern through law.

The strength of Marshall's vision enables us to celebrare the 200th annivcrsary of this opinion. The alternative vision - a weak national governmem, a constitution at the whim of transient partisan politics, and a judiciary incapable or unwilling to protect individual rights in the face of raw political power - would nor have lasred so long. In facr, we tested that alternative vision in the years leading up to the Civil War and found ir wanting.

We Are a Government of Laws Marshall considered whether or not

8 The Arkansas La"ycr

W'\foIIIV'.arkbar.com

Marbury was emided co his commission.

Marshall held that the commission vested at the time it was signed and sealed (by John Marshall!) and that delivery was incidental.

Marshall said that the essence of liberty is the abiliry of an individual to use the law co right a wrong. Even the King of England can be sued, suggesting that Jefferson would have to be more than a King to be immune from suit. Marshall then delivered these words: "The government of the United States has been emphatically termed a government of laws, and not of men. It will cerrainly cease ro deserve rhis high appellarion, if the laws furnish no remedy for the violation of a vesred legal righr."

Even Presidents Must Obey the Law Marshall reached constiturional bedrock: Law has taken the place of the King in the United Scates. The law is dle first and final source of power and aurhoriry. Everyone, including Presidents, must obey the law.

More importantly, governmental actors derive their authority from law. Even "political" duties are defined by their constiturional delegations of power. Acrs are political because they involve the welfare of the

nation and if the execurive officer received his authority from the constitution. They are not polirical because the person declares them so.

Right Defendant, Wrong Court All that was left was to give Marbury his remedy: a wrir of mandamus ordering Secretary of State Madison to deliver the commission. Marbury invoked the Supreme Court's original jurisdiction. Marshall said: "[I]f this court is nor aurhori7.ed ro issue a wrir of mandamus ro such an officer, ir must be because the law [giving this court juris路 diction] is unconstitutional, and therefore absolutely incapable of conferring the authority, and assigning the duties which its words purport ro confer and assign. In other words, Madison may be the righr defendant but the Supreme Court may be the wrong court. If presidents are bound by the rule of law, so roo are couns.

Marshall's jurisdiction analysis relied almost entirely on the srrucrure of the Constitution and not its rext or hisrory.

Marshall began by asserting rhar Article III assigns jurisdiction ro the federal CourtS and that Congress cannor add to ir. Marbury would get his mandamus only if the Constitution allowed the Supreme Court ro take original jurisdiction of mandamus actions. But Article III did not give the Supreme Court original jurisdiction over actions like Marbury's.

Marbury invoked the Judiciary Acr of 1789 as authority for the Supreme Court's jurisdiction. Marshall responded by saying that under these circumstances "it becomes necessary ro inquire whedler a jurisdiction so conferred can be exercised." Marshall placed all three branches of the federal governmem under the rule of law. The president cannOt ignore the law for political gain, the courts must conform to the constitutional grant of jurisdiction, and the Congress cannOt give courts more jurisdiction than the constitution prescribes.

Creating a way oflife is so important that it should not be done very often and it should last forever: "[It] is a very great exertion; nor can it, nor ought it, to be frequently repeated. The principles. therefore, so established, are deemed fundamental.

And as the authority from which they proceed is supreme, and can seldom act, they are designed to be permanent."

For Marshall, the Constitution created a federal government designed ro outlive the temporary political situation that brought it into being. In this scheme, judiciaJ review is a necessary inference from a written constitution. Marshall asserted that a constitution that limited governmental powers would be meaningless if its limitations could not be enforced. More important, however, a government that did nOt foUow the constitutionallimitations would break faith with the fundamental precept of the rule of law: "The constitution is either a superior paramoum law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it."

The Constitution as Paramount Law Judicial review flowed naturally from these propositions. If the Constirution is the paramount law, Congress must foHow the paramount law. If rhe courts must interpret law, then federal courts must have the power to decide if Congress has followed the Consritution. Deciding which law applies when twO conflict "is the very essence of judicial duty. If ... me courts are to regard the constitution, and the constitution is superior to any ordinary act of the legislature, the constitution, and not such ordinary act, must govern the case to which they both apply. Those ... who controvert the principle [that the constitution is paramOunt law] are reduced to the necessity of maintaining that the courts must close their eyes on the constitution."

A Practical and Real Omnipotence The Whole American Fabric Marshall meditated on the meaning of a writren constitution. For him, the Constitution was the foundational document of the American way of life: "That the people have an original right to establish, for their furure governmem, such principles as ... shall most conduce to their own happiness is the basis on which the whole American fabric bas been erected' (emphasis added).

Although Marshall did nor say so expressly, desporism would follow if popularly elected legislatures could ignore fundamental principles in favor of political expediency. He hinted at this when he said that the absence of judicial review "would subvert the very foundation of all written constitutions ... it would be giving to the legislnture a practical and real omnipotence, with the same breath which professes to restrict their power within narrow limits" (emphasis Vol. 38

For Marshall. the Constitution created a federal government designed to outlive the temporary political situation that brought it into being. In this scheme, judicial review is a necessary inference from a written con-

stitution. Marshall asserted that a constitution that limited governmental powers would be meaningless if its limitations could not be enforced.

added).

Marshall never strayed far from his original proposirion: the people are sovereign through law. We have no omnipOtent king.

Only the people are omnipotent. They have exercised their fundamental power by creating a constitution thar expressly limits governmental power. The Consriwtion should be interprered to guarantee that no person or institution of governmem ever usurps the people's ultimate power. He concluded that the Court could nOt exercise original jurisdiction over Marbury's claim because the Congressional act establishing such jurisdiction was unconstitutional.

The Three M's: Marbury, Martin, and McCulloch Marshall and his Coun elaborated on these themes in later cases. The concept of the Constitution as paramounr law made possible Martin v Hunter's Lessee, 14 U.S. (l Whear.) 304 (I816), where the Supreme Court held that it could review state coun decisions. The Coun held that without such review there would be as many constitutions as rhere were states, eliminating the constiturion as the paramount law. The people's sovereignty framed McCulloch v Marylmui, 17 U.s. (4 Whenr.) 316 (1819), where Marshall upheld rhe exercise of federal power in the face of state claims to ignore federal laws not to their liking. He established that the people created the Constitution and therefore, the people, nor the states, retain the sole power to dissolve the union. Taken together, Marbury.

Martin, and McCulloch established a permanent constitution that created a powerful national government with a Supreme Court ready to enforce the rule of law.

o. .lISummer 2003

TI,e Arkansas lal'Yer

9

Marshall.s Legacy and the Civil War Marshall died believing he was a fuilure.

Marbury was rhe only case in which Marshall declared an act of Congress UllconsricU[ional and McCulloch showed [hat Marshall did not intend judicial review to weaken national power exercised within consricutional bounds. Slave stares undersrood rhe message: Congress could, if it had

the poliricaJ wiJl, outlaw slavery and the Supreme Court would not interfere. This created the warped version of srates' righrs that fueled southern resistance prior to the civil waf and reared its ugly head in the South during the Civil Rights Era. Andrew Jackson, an implacable foe of Marshall, replaced him on the Supreme Coure widl a loyal member of Jackson's parry, Roger Taney. In the infamous case of Dred Scott v. Sanford, Taney struck a federal law for rhe first time since Marbury. Taney's opinion held that freed slaves could never become citizens and that Congress had no power to create slavery-free territories. This decision made political or legal resolutions of slavery impossible and precipitated the

Civil War. Taney's constitutional vision was the opposite of Marshall's. Taney's constitution cared little about individual rights, little about the permanence of the federal system, and little about rile rule of law. Taney's analyrical nmhod parodied Marshall's. Under the guise of fidelity to the Constitution, Taney enshrined racism and injustice.

Where Marshall articulated a constitutional vision that built rhe country up and fortified ir for the cenrurics, Taney rrivialized rhe document and desrined the country for con· flicr and dissolurion.

In the end, Marshall's consriturion prevailed. We have become what Marshall envi· sioned: a sovereign people governed by law.

Marshall taught us ro rake the ConstitU[ion seriously. We care who serves on federal courts and what rhey decide because we must keep fajth with the "great exertion" of the framers and preserve the constitution for the ages. We rest on the foundation that Marshall laid down 200 years ago in Marbury v. Madison. _

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PATENTS, TRADEMARKS. COPYRIGHTS & RELATED LITIGATION

10 TI,e Arkansas La"yer

www.arkbar.com

Bank of America Plaza One East Center Street, Suite 217 Fayetteville, Arkansas 7270 I Telephone (479) 251-0800 Facsimile (479) 251-0801

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On the web, or in the book, we've got you covered.

Arkansas Legal Directory. It's the blue book.

Official Directory of the Arkansas Bar Association

Vol. 38 No. 31Summer 2003

n,e Arkansas Lawyer

II

Attorney Discipline and Ethics Update

by Stark Ligon

Stark Ligon, licensed in 1975, has been Executive Director ofthe ArkallsllS Supreme Court Office of Professional Conduct since january 2001, and is a former circuit judge, chancellor, chief counsel to a governor, pmcticing attorney, Army stille judge Ildvo(flU, nudiator and arbitrator.

This annual summary update is mainly positive and only slighdy negative. The positive news is that the overwhelming majority of Arkansas lawyers conrinue to be ethical counselors and champions for their c1iems, what we al the Office of Professional Conduct caU our "silent majority." Thanks to all of you in this category! However, while the number of informal complaints received from all sources in 2002 remained aoom the same as in 2001, formal disciplinary complaims filed in 2002 jumped by 25 percem to 186. Twenty-four anorneys each had more than one public sanction imposed in 2002. Our filings of formal complainrs in 2003 to date are on pace with 2002.

Disbarment complaints appear to be trending upward, and we expect to have at least seven in process by mid-year. \Y/e can only hope that educational efforts by this office and the bar, appropriate disciplinary vigilance, and self-policing by the bench and bar keep this from becoming a long-term trend.

As in previous years, the largest area of complaints from the public involves what we call

12 TI,e Arkansas la-ryer www.arkbar.com

"neglect of clients and their legal matters" and "failure to communicate" situations.

Attorney Trust Accounts. Effective July I, 2002, a new Supreme Coun rule requires banks to repon to this office all instances of attorney trust accoum "insufficiencies," whether the bank refused {O honor the check or did pay it, if the transaction created a negative balance in the account at the time. Our first 10 months' experience with this new program has been surprisingly positive! The overwhelming majority of reports have been caused by unintentional errors-by attorneys and even by banks. The most common mistakes are failure to make timely depositS, bookkeeping errors at law offices, and client checks thar "bounce," causing problems in the trust account into which each was deposited by an unsuspecting lawyer. Out of over 60 notices received at the time this arricle was written, probably only a handful will result in formal complaints. The most disturbing revelation to come from this new rule is the apparent lack of knowledge by many lawyers of the basics of attorney trust

ARKANSAS

JUDICIARY

Our first full years experience under the revised Supreme Court's 2002 revisions to the disciplinary Procedures is positive.

accouming. This office has presented many CLE programs since last July in an attempt (0 provide basic information ro lawyers on rnis subjecL Basic lawyer trust accounting is simple.

(I) There must never be a negative balance in any account-an individual client's separate account, the cumulative common c1iencs trust account (IOLTA accoum), or the trust account bank statement. If a three-way monthly reconciliation among these mree items is faimfully performed, mistakes are minimized and any are caught early 011. (2) Receipt of funds is prompcly reponed [Q those with an interest in the funds-clients and third persons. (3) Trust accoum funds are prompdy disbursed, including any earned attorney fees. A lawyer does not "park" or "hide" earned fees in the trust accoum! (4) All trust account funds are fully accounted for in writing to the respective clients. Each separate client truSt account is just like your personal checkbook register.

Post timely, completely, and properly and you have taken care of the basics. (4) Be "descriptive" on each item in your trUSt account, so the deposit slip or check can be easily identified by an auditor-do nO[ wrice checks our to "cash" or use ATM machine withdrawals with your cruSt account. Each trust account deposit slip or check should have sufficiem descripcion on ic to link ic back, for audit purposes, co a specific client and a specific legal marter. (5) Do not "commingle" diem and personal funds by either leaving earned fees in your trust accounc or by depositing personal funds imo your crusc account.

Model Rule 1.I5(a)(3) dearly requires that anorney trust accounr records be preserved for five (5) years afcer the termination of the representatjon. A requesc or subpoena from the Committee for a lawyer's truSt account records, if not challenged legally by the lawyer. should not be mec with the answer that the records no longer exisc at the lawyer's office. Because Arka.nsas has no statute of limitations for lawyer disciplinary actions, a wise lawyer might consider maintaining trust accounr records permanently. especially considering the expense to obtain duplicate records from the bank several years after the fact.

Several attorneys have run into problems by failing to disburse settlement funds from personal injury cases to health care and other providers. often after medicaJ liens were properly filed and "letters of protection" even given by the attorney. Unless the lawyer is negotiating a red union in a provider bill, there would seem co be little reason to not write and distribute all checks for funds from a settlement at roughly the same time.

In at least one instance, this failure co pay a clearly acknowledged bill resulted in a suspension for the Ia""yer. Even if it is the "claims staff" making the mistake. the lawyer is ultimately responsible.

A special note about theft and embezzlement may save yOli the pain and embarrassment suffered by morc than one lawyer. The lawyer is the fiduciary for any funds of clients or others that come inco the lawyer's possession or control. \Xlhen there is a loss, almost always uninsured, it is the lawyer who generally is responsible. If you are

vol. 38

o. 3/Sull1ll1er 2003

TI,e Arkansas La,,,-er

13

.' ' ,~ !

As a result of the American Bar Association's adoption in August 2002, the Professional Ethics Committee of the Arkansas Bar Association has been engaged in a review of the Arkansas [Model] Rules.

allowing mhers to have access ro, or even sale daily control over, your trust account, and ocher accounts, you run a big risk of financial disaster. Theft happens! Three weeks after I gave a CLE program late last year, an anomey in anendance called me ro report he had been the victim of trust accoum then just as I had described in the program. He had nm personally supervised his trust account for many mOlUhs, and that was all the head starr his now-former employee needed to skim off a substamial amount of funds and destroy the records.

Please go check your situuion roday!

Ethics and Disciplinary Developments.

Our first full year's experience under the revised Supreme Couer's 2002 revisions ro rhe disciplinary Procedures is positive. Most notably, the use of separate Committee panels for the ballot vote, public hearing, and "discipline by consent" stages appears ro afford respondent attorneys the "fairness" the changes were designed ro bring about.

Secondly, the use of "consent," really a riskmanagemenr rool for both sides, seems to be working well, and growing in use by respondent anorneys. Of 178 formal complaint files closed in 2002, 35 were by consent. To dispel any norian that rhe Committee panels are "rubber stamps" for JUSt about anything the Office of Professional Conduct chooses to file, panels voted "no action" on 30 cases in 2002. A copy of the 2002 Annual Report is now available on-line at the Comminee's webs ite-http://couers.s ta teo a r. us!co uers!cpc. hnnl. The office has smned mailing a copy of each final "public" disciplinary opinion (0 the hometO\vn newspaper of the publicly s:1I1ctioned lawyer. I n several notable instances, this public information has led to the filing of additional complaints by other

14 TIle Arkansas lÂŁl\..\)'cr

~.arkbar.com

clients and our discovery of additional, and more serious, problems than we knew about originally.

The Committee and this Office are funded solely from attorney annual license fees to the Supreme Court, and not by tax revenues.

Since January 1, 2002, the Committee has collected over $46,000 in fines and over $1,200 in case costs from assessed sanctions, in addition to restitution for clients in some cases. The revenue from fines and COStS goes back inro the general Couer fund from which attorney discipline, professional programs, the lawyer assistance program, the client security fund, the unauthorized practice of law committee, and other Court entities are funded.

One disturbing trend has been the number of lawyers receiving multiple public sanctions in the space of one year. The Committee's 2002 Annual Report, at page seven, reveals that three lawyers had four or more public sa.nctions in 2002. Many others had at least twO public sanctions. For purposes of discussion only, if the lawyers who receive four or more public sanctions in one year do not also get suspended somewhere in this process with such a record, then we may need to think about the system, especially if these lawyers had sanctions from previous years. Strictly as a personal comment, although I have heard it recently at twO CLE programs in which I participated, if the message is not getting through to such lawyers, maybe we need to consider a rule change that more directly takes into accou.nt the cumulative weight of all public sanctions over a certain time period, or even a career.

Perhaps it cou.ld function much like the driver's license "points" system-a certain number of roral points and the lawyer automati-

cally gets a suspension of some length. One interesting suggestion made is that the sanctions mighr Count as follows: Warning - one point. Caution - twO points, Reprimand three points, Suspension - four points. Using such a scheme, three lawyers whose records I am famil,ar with would have the following records: Lawyer A â&#x20AC;˘ since 1983, four cautions (eight points) and five reprimands (I5 points), for a rotal of 23 points, but never suspended; Lawyer B, since 1987, twO warnings (rwo points). four cautions (eight points), and three reprimands (nine points), for a total of 19 points, but never suspended; Lawyer C, since 1982, has had four warnings (four poinrs), cautions (six points), 10 reprimands (30 points) and a sixmonth suspension in 1992 and a threemonth suspension in 2000 (eight points), for a total of 48 "career" points. Somewhere in these records is a possible need for more deterrence man the presem system appears ro deliver for repeat offenders who do nor appear to correct their behavior.

Arkansas (Model) Rules Update. As a result of the American Bar Association's adoption in August 2002, the Professional Ethics Committee of the Arkansas Bar Association has been engaged in a review of the Arkansas Rules. A state recommendation. which can be viewed at the Association's website at www.arkbar.com/ whats_newl new_ffiodel_rules.h unl, was approved by the Association's House of Delegates at theJune Annual Meeting. and will result in a petition ro the Supreme Court. AnlOng the major proposed changes from the current Arkansas Rules are: (I) MR

wee

1.5(e), by which the client must agree to any division of fees berween la\vyers in difFerenr firms, and that agreement must be confirmed in wriring, (2) MR 1.6, giving the la\vyer more discretion in disclosing confidenrial information to prevelH a future crime, (3) MRI.7(b) and MR 1.8(a), requiring waivers of conflicts of imerest to be signed by the client in certain situations. (4) new MR 1.8{j), prohibiting sexual relationships with clienrs due did not predate the attorney-diem relationship, (5) clarification of MR 1.15 on arrorney trust accounts. (6) new MRI.18, on duties to prospective clients, and (7) major changes to MR 5.5 on unauthorized practice of law and multijurisdictional practice, essentially to approve a "house cOIwsel" exception to Arkansas licensure. The ABA revised Model Rules makes frequent use of the concept "confirmed in writing" in attorney-cliem dealings. Any petition from the Association to the Supreme Court will likely be put out for public commenr by me Court. Lawyers need to familiarize themselves with the proposed changes, so they can timely offer COI11ment and be ready to incorporate any changes inro their law practices.

If you would like rhe Office of Professional Conduct to presem a program in your area or to your organization on these, or other relevant issues, please contact us ar 501-376-0313 or 1-800-506-6631. We had rather spend time sharing information with you that may help lawyers avoid complaints than spending even more time dealing with the complain ts. _

Technical Expertise.

Practical Experience.

Vol. 38 No. VSUl11l11er 2003

TI,e Arkansas la'ryer

15

A Change in the Air (Quality Standards): Potential Impact on Arkansas

By Walter G. Wright. Jr.

Waher G. Wrighl, ir. u a mrmb<r of Ihr law firm of Milchr/~ Williams, Srlig, Gaus & Woodyard, P.L.L.e. wh<rr hr pracricrs in Ihr arras of Environmmtal and Enngy law. Ht has served sinu 1987 as an adjunct profroor 01 Ihr Univmity ofArkansas at Li/lk Rock School of Law. Hr servrd on Ihr Minority Slaff of Ihr S"bcommi/lrr on Ihr Hrallh and Environment ofthe Energy and Commerct Commitfu in the miJ-/980s.

I. Introductioo Born me United Srates and me state of Arkansas have operated regulatory programs whose objective has been me protection of ait quality for over 30 years. The primary focus of these efforts has been the concrol of St3tionary and mobile soutce emissions. The federal Clean Ait Act ("CAA")1 mandated me development of uniform emission conuols/limics and ambient air qualiry standards. 2 The statute has in turn required that the states impose/attain these baseline standards within their bonlers.'

Arkansas has been implementing various CAA mandates since me easly 1970s. The state has traditionally been successful in expeditiously :maining the various federal standards. This has enabled Arkansas to avoid

triggering certain federally mandated restrictions imposed upon stares that have been less successful.

Recent revisions to the federal ambient ozone4 air qualiry standards may pose a challenge for Arkansas. The kder:al govemmenr5 has lowered me national ambient air quality Standard ("NAAQS") for ozone. Certain areas in Arkansas may not be able to meet this revised standard. If not, they will be designated "non-anainment" fot the ozone NAAQS. The possible designation of one or more areas of Arkansas as non-attainment for me ozone NAAQS carries significant potential ramifications. Therefore. this article briefly examines born me possibility of such a non~attainment designation and the associated responsibilities. To place these developments in me appropriare cootext, an abbteviated overview of born the CAA and

16 The ARansas Lawyer 1-

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its non-attainment program is provided. In addition, the specific issues associated with a non-attainment designation and the efforts to mitigate them are explored.

II. Federal Air Pollution Control A wide variety of substances considered air pollutants are generated by a broad spectrum of human activities.

These can include stationary sources such as manufucturing. distribution. or energy generation facilities. Not all air pollutants are emined through a stack or a pipe.

Instead, fugitive emissions sometimes result from certain land use activities such as construction or mining.

Mobile sources of air pollutants may range from lawn mowers, motor vehicles, to airplanes.

A multi rude of pollution control practices, methods and equipment exist or are being developed to reduce or eliminate the emission of pollutants into me ambient air. The desired level ofemission reducdon, type of facility/industry, and category of air pollutant may be funors in the cost of the relevant polludon control equipment.

Equally important, many areas of the COUntry have focused considerable resources on transportation and land use activities to address certain ambient pollution concentrations.

1. Overview The CAA uses a two-parr approach to air pollution control. First, initial limits are applied to new and/or existing stationary sources. These federal limits may be imposed upon stationary sources through either the Section III New Source Performance Standards or Section 112 National Emission Standards for Hazardous

Air Pollurams. These programs place uniform, performance-based emission limits on categories of facilities regardless of where they are located or the condition of the area's air. In other words, a steel mill located in Arizona must meet the same Section 1t I emission limits as an identical f.1ciliry in Pennsylvania.

Tide II of the CM also established a separate set of federaJ emission limits and/or standards for mobile sources and the fuels that power them. With limited exceptions, the states have traditionally been restricted from placing additional or different standards on moror vehicles. However, the significant contribution mobile sources make ro certain ajr pollutant concelHrations has made the imposition of such controls of interest to the states.

Second, ambiem air qualiry standards (i.e., AAQS) have been established for a limited number of air polluranrs. 6 Secrions 108 7 and 109' of the CAA require thar EPA identify air pollutants utilizing certain criteria and set NAAQS for each. The air pollutants subject to such standards are denominated criteria air pollutants.

Criteria air pollutants are some of the most commonly encountered air pollutants because the CM requires that they be emitted by diverse or numerous sources.

The burden of attaining a NAAQS shifts to the states once the srandard has been established. Specifically, the states are required to develop State Implementation Plans ("SIPs") ro ensure that their Air Quallry Comrol Regions ("AQCRs)9 meet the various NAAQS.IO The SIPs will comain the measures and actions the state proposes ro undertake to attain each NAAQS. The states have some discretion in the choices they make to attempt to attain the NAAQS through their SIPS11. However, the measures or actions must be enforceable through state regulations and typically include emission limits applicable to certain types of sta-

tionary sources. The SIP subsequent revisions must be reviewed and approved by EPA which uses criteria set forrh in the CAA. EPA has the authoriry ro develop and impose a federal implememation plan on the AQCR if the state cannot develop one that anains the relevant NAAQS.

2. Revised Ozone National Ambient Air Quality Standard The CAA requires that EPA petiodically detetmine whether each NAAQS should be revised. Consequently, EPA had for sevetal yeatS studied the ozone NAAQS. The agency ultimately decided ro tighten it. 12 The ozone NAAQs was lowered from 0.12 parts pet million to 0.08 parts per million and averaging time changed from a I-hout standard to an 8-hout standard.

Arkansas has maintained compliance with the I-hour ozone standard over the past [Wo decades. However. the sampling results for me 8-hour standard indicates compliance will be more difficult to achieve. The areas in Arkansas believed to be porenriaJly at risk for violating rhe revised ozone NAAQS are central Arkansas (i.e., Pulaski, Faulkner, Lonoke, and Saline Counties) and Crittenden Counry.I' Whether the previously referenced Arkansas areas will be deemed non-attainment should be definitively determined based on monitoring results this summer. 14 The significance of a non-anainmem designation for the two Arkansas areas is the possibiliry that additional air pollution control measures might be imposed on certain sources of air emissions. In some instances, the construction or expansion of cemun sources could be restricted or made more difficult. Smaller sources of relevant air pollutants may be required to obtain permits for [he first dme. Also. a broad range ofcommercial and industrial facilities could be subject to more stringent standards. Further, transportation 15 and/or developmem

me

Vol. 38 No. 3/Summer 2003

The Arkansas Lawyer

17

may be affected in some instances because of certain restrictions on federal funding in areas designated nonattainment. In other words, the CM may for the first time be relevant (0 some major non-industrial Arkansas projects such as shopping centers and other developments.

3. Practical Arkansas Issues The state has a multi-faceted interest in these potential non-attainment designations. Of particular interest is the potential impact on economic developmenr. The construction andlor expansion of stationary sources proposing to emir ozone precursors could be subject to additional requirements. Commercial or industrial facilities considering locating or expanding in such areas are likely to evaluate the impact of being in an ozone "non-attainment" area. They will probably assess whether there will be additional costs for control equipment or a lengthier permitting process. The national competitive effects might be mitigated somewhat in view of the fact that many other areas in the nation will also likely be designated ozone non-attainment for the first rime.

A non-attainment designation may also place a potential additional hurdle on the acquisition of federal transportation funds. Transportation projects obviously affect both land use and growth patterns. In some instances, an analysis will need to be undertaken of the potential impact of a transportation-relatcd project on the area's ability to eventually attain the ozone NAAQS. Considering the impact of thc additional mobile sources (and their associated emissions) will be a novel experience for Arkansas.

In Arkansas, a non-attainment designation may also, for me first time, encompass activities or sources that have not to date been affected by air programs. Many facilities that emit smaller amoums of ozone precursors have previously fallen outside of the reach of mandatory comrols or limits. These could conceivably range

1----.....:.--

from comrols on facilities that dispense mOtor fuel to smalJer boilers in buildings.

The means used to address non-attainment will not be limited to mandatory comrols. Instead, efforts have been and will continue to be undertaken to motivate unregulated sources ro engage in behavior that heJps reduce ozone levels. These may range from discouraging unnecessary idling, encouraging car pooling, exploring alternative fuels for ReelS, and changing the formuJation of the moror fuels used in the area. 16 There may also be new interest in projects that might reduce vehide miles rraveled (i.e., "VMTs") such as expansion ofbike/pedestrian facilities aJld increasing mass transit ridership.

Finally. the State of Arkansas is likely to devote some effon to analyzing whether sources from other states are contributing to Arkansas ambient ozone concentrations. Some air polJutants can travel significant distances. There has been some concern that Arkansas is materially impacted by our-of-state pollutants that contribute to ozone concentrations. This will be a complex technical determination. Nevertheless, [he resources will likely be expended to address this issue to ensure that Arkansas does not bear the cons associated with air pollutants originating from other states.

III. Conclusion The impact of an Arkansas non-attainment designation will play our in the next several years. Nevertheless, it is probably imponanr for Arkansas lawyers to begin considering the relevance of these issues to current or future client projects or activities. The issues could range from the increased difficulty (if any) of obtaining federal funds for roadways associated with cerrain commercial developmel1t to the advantagesl disadvantages of utilizing alternative fuels for vehicle Reets. The construction or expansion of certain stationary sources may require "off-sets" from other facilities (i.e., a binding commitmel1t by other sources to eliminate a certain

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John E.. MeAUister~ P~E~ Smmnary of Academic & Professional Experience Registered Professional Engineer in 3 Slates.

9 years of experience as president of large distributor specializing in all types of safety equipment, major emphasis on metal forming and stamping.

11 years of experience as president of company involved in repair and rewinding of electric motors and manufacture, sales, installation and servicing of eleclJ'ical comro] panels for indllstry.

14 years of experience with General Electric Co. in engineering :lnd industrial sales.

Earned as-Electrical Engineering in 1947.

Complete curriculum vitae and references on request.

John E. McAllister. 3 Palisandro Drive. Hot Springs Village, AR 71909-4613 Phone: (501) 922-1709' Fax: (501) 922-41n

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TIle Arkansas Lawyer

19

amount of historically emitted air pollutants). It is also possible that some local governmental entities will eventually be fotced

for the first time to consider restrictions or limits on previously unregulated activities. The authoricy for such restrictions, and how they are applied, will require significant input ftom me local governmental entities' legal counsel.

The effon to move these areas into attainment will focus significant attention on the relative contribution of various stationary and mobile sources of orone precursors. The importance of such information is derived from the fact that it will likely be used to determine the relative contribution of various sources to owne concentrations. There will inevitably be disagreements between the types and classes of sources as to how

9.

10.

II.

12.

me burden for allaining me revised ozone NAAQs should be

allocated. It will therefore be important for anyone potentially affected by these issues to monitor and participate in the

13.

process.• ENDNOTES I. Clean Air Act, 42 USc. §§ 7401 -7671. Both the fOOml and Arkansas pollution control programs are examined in Walter G. Wright & Mary Ellen Henry. The ArkanulS Air Pollution Control Program, Pas~ I'm",/ and FuM" 51 ARK. L. REV. 227 (1998).

2. An ambient standard sets a maximum air pollutant concentration as measured in a specific locarion. In COntrast, technology-based controls/limits set quantitative limitS on the discharge of air pollutants.

3. Note that the States have traditionally had much more limited authority under the CAA to place controls on mobile sources (i.e., motor vehicles, etc.) Sec Tide II of the CAA. 42 USc. § 7502.

4. Ground-level ozone pollution is formed by the reaction of volatile organic compounds and nitrogen oxides in Ihe aunosphere in the presence of sunlight. lnese ozone pre· cursors are emined by many types of pollution sources including on·road and off-road motor vehides and engines, power plantS and industrial facilities, and smaller 3ru sources.

5. The CAA is administered by the federal Environmental Protection Agency.

6. The process for establishing NAAQSs is found in Section t 08 and 109 of the eM. Sec 42 US.c. §§ 7408. 7409.

Six air poUutants are currently designat·

16.

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cd.

7. This section requires: that the EPA identify air pollutants "which may rca.son~ ably be anticipated to endanger public health and welfare" and to issue air quality criteria fOt them. 42 USc. § 7408.

8. This section subsequently requires that the EPA promulgate "primary" and "scoondary" NMQS fOr the pollutants identi6ed under Section 108. 42 U.S.c. § 7409. It defines a primary standard as one "the attainment and maintenance of which. in the judgment of the Administrator, based on the criteria and allowing an adequate margin of Io....-

20 The Arkansas Lawyet www.arkbar.com

14.

15.

safety. are requisite to protect the public health." 42 U.s.c. § 7409.

AQC~ are geographic areas defined in Section 107 of the CAA that have been delineated for purposes of determining NAAQS attainment. 42 U.s.c. § 7407.

42 U.S.c. § 7410.

The United States Supreme Coun noted in Union Electric Co. IJ. EPA, that each state is given wide discretion in formulating itS SII~ 427 U.S. 246 (1976).

The revised ozone standard was originally promulgated on July 18, 1997. 62 Fed. Reg. 388,856. The rule was held in abeyance for a fC\y years because of judicial challenges that were ultimately resolved in the United States Supreme Coun in f3vor of EPA in Whitman IJ. American Tmcking Association, 121 S. Ct. 903 (200 I) (upholding the revised ozone NAAQS).

Crittenden County will probably be included in a non~attainment area that is pan of the Tennessee/Arkansas!

Mississippi Consolidated Metropolitan Statistical Area. This area includes Memphis, Tennessee and pans of northern Mjssissippi.

A key fuctor in ozone levels are certain weather conditions.

The CAA requires federally approved or funded projectS to "con· form" to the requirementS of SIPs for non·atrainment areas. In other words, the air quality in transportation planning and development process must be integrated.

The EPA, Arkansas Department of Environmental Quality, Arkansas Highway Transportation Department. MetroPlan, vari· OtiS central Arkans..1S counties and communities have signed an agreement to voluntarily implement measures to reduce ozone emissions. This agreement is nor cxpeaed to prevent an ozone evertheless. it non·attainment designation in central Arkansas. may be viewed as an initial effort to put in place measures that will eventually move the area toward that goal objective.

ELECTRICAL ACCIDENTS Paul D. Mixon, Ph.D., P.E. Engineering Consultant PO. Box 3338 State University, 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 Wi blessing for Plaintiff and Defense Related Cases.

--l

President's Feature

Thomas A. Daily: Second-Generation President "We coUect SWlSCts in our car," Association Presidenr Tom Daily remarked as he smiled at his wife, Debbie. "We arc always driving back and forth between Fort Smith and Little Rock on Association business. Arkansas sunsets arc beautiful and one of them is almost always on display sometime duting the ride home" Debbie answered quickly with another story about their current remodeling project. Tom's mother, IsabcUe, passed away last year; Tom and Debbie bave decided to move into her former bouse.

IsabeDe bad installed an amber mercury vapor security light in the backyard. "We would sit on IsabeUe's patio to plan the remodeling and watch the SWlSCt as we often did at our other house. Instead, we were treated to the pure yeUow glare from that securiry light.

Tbat was our sunset," she laughed, "waiting for the mercury vapor to rise."

"It looked like a shopping center parking lot or something," he said. "It was ugly, ugly, ugly. It is gone now, although getting rid of it is another story."

What isn't ugly is the story behind this prominent natural resource lawyer's ascension to this Association's presidency. A member of Daily & Woods, P.L.L.c., in downtown Fort Smith, Daily grew up in a family of attorneys. His grandfather, Harry P. Daily, was President of the Arkansas Bar Association in 1931-1932. His

father, J.S. Uack) Daily, was also a respected attorney and active Association member.

"I grew up in our office tunning errands and helping the secretaries. I never went through the jet pilot or fireman phase," Tom said. "It never occurred to me that people did anything else [except become lawyers]. That is what everyone did. I bave an uncle who ran a baby furniture factory, but that was kind of an aberration."

After graduating from Shattuck School outside Minneapolis, Tom attended Sewanee (The University of the South), where be majored in Political Science, and the Universiry of Arkansas School

of Law, where be obtained his J.D. dcgrcc. He was admitted to ptactice in 1970 and then returned to Daily & Woods.

"We have a general civil pnctice," be said, "But I spent my formative yeats in the law firm learning bow to be an oil and gas (natural resource) lawyer. Jim West [Aw>ciarion President in 1973-(974) encouraged me to enter this Iidd and mcntored me along."

In 1973, Tom met Debbie, then a lcgal secretary for Shaw & Lrdbctter (pmleassor to Aasociation Past Praidcnt Ron Harrison's firm), which bad its office in the same building. "I bad cases with one of the membcn of that firm," be confided, "so I nccdcd to meet

with him on business. But there was this girl down there. Not only was sbe prcny, she was sman. No matter how funny I thought I was, her wit always rrwnpcd mine." Their "love at first sight" relationship dcvclopcd quickly over the summer months: they married that same year. On December 8, they will celebrate their Thirtieth Anniversary.

Tom and Debbie have two sons, Mike and Chris. Mike is a graduate of Hendrix CoIIcgc with a BA dcgrcc in Business EconOJnics.

He completed his M.BA dcgrcc last summer and is currently a sec:ond year law ttUdcnt at UALR Law ScbooI.

Chris graduated from Hendrix this May with a dcgn:c in Religion. He has been accepted to the Asia Pacific Leadership Program at the Universiry of Hawaii', East-West Center, where he will pursue his study of Asian Ianguaga and cultures. In addition, he was awarded an East-West Center Fellowship, which will aDow for further research and a fidd srudy in the Asia-Pacific: . n , Ultimately, be intends to pursue a doctorate dcgrcc in Cbincoe philosopby and rcligion.

Tom also has a son from a pn:vious marriage, Jack, who rccentIy completed his M.BA and works for the Univcnlty ofPboen.iL

One ofTom', most significant cases involved Debbie's childhood borne. He pointed out that wbUc most cases ate important to the litigants, a kw, the "landmark cases," have a brooder importance to Azbnsas substantive law. WbUc he has bandied both, he prcfal the latter. This was one of them. ~ .. Puntm 251 Ad<. 694. 520 S.W.2d 204, resoIvcd an obscure, hut important, ftI1c of plOpeat, law. The clients wac Debbie's parents.

"I rcaIJy wmtcd to win that case evai if it meant solng c:1car to the Supi'CIDC Court to do it. Baidlls that, I was nm/i(lent I thought the c:asc law from other _ was pJCtty -e:IeIiIy in our \bI. 38 Net, 3ISumntc:r 20(8 'I1Ie ~ a.,

"1 want to do as good a jo, "Not long after that myoId friend, [past p"",ident] Jack McNulty, appointed me to a whole bunch ofAssociation committees. I loved that service. Then, one day when I was down here [Little Rock], Judith Gray pulled me aside and said, 'Tom, [ want to show you something.' She took me into Ann Pyle's office wh... all of the Past P"",idents' pietuteS ate hanging, and she showed me my grandfather's photograph. I think she was working on my mind right then, although she would never admit it. "[n 200[, the pcesidential deetion rotated to my [Notthwest] district. [filed for the position and my friends were !\ice enough not to run against me," he laughed. "[ want to do as good a job as can be done," he said. "This job is a major commitment, but a labor oflove. When Don [Hollingsworth] called and told

. . . . . . .....;1 me that no one was going to run against me and

favor,' Daily said.

'We barely won. It was a 4 to 3 Arkansas Supreme Court decision. The majority opinion was written by Justice George Rose Smith (one ofthe. if not th. most, revered jurists who ever served on the Court). Justice FoggIeman wrote a vety lucid dissenting opinion. [n retrospect, I realize that the court could have easily gone the otherway."

Tom has been an active Association member throughout his career. Most of his early work was within the Natural Resources Law Section, as opposed to the patent association. That changed about ten yean ago. "David Vandergriffcalled to tell me there was a vacancy, from our district, on the Association's House ofDdegates. [ have always felt that the Arkansas Bar Association was a very special organization, so I agreed to run. After a couple of yean doing that, I was hooked on bar leadership.

24 The Arkansas Lawyer www.artdlar:com

that I would be P"",ident-E1ect Designee, [ told a number ofcolleagues that [ knew that pasr Pcesidents Ron Harrison, Jack McNulty and H.T. Moore had absolutdy worked themselves to a frazzle running hack and fotth to Lirtle Rock on Bar Associarion business. But [ said that [was smart enough not to do that. [ would figure out a way to do the job well in my spare time."

"Well. right th...," he said, "you can see that [ proved how smart [ am not, because there is no way to do this job properly without devoting a lot of time to it."

Tom has been involved in much of the progtess the Association has made within the past decade. He is proudest ofrhe Association's tenewed emphasis upon member benefits. "[ remember that at one of our Board of Governor's meetings in Heber Springs, two remarkable things happened on the same afternoon. Don Hollingswotth was giving a report on things thar were happening around the countty, and told us that there were actually bar associations in New England conrracting to provide a limited amount of state..pecific legal m;earch material to their members.

"That afternoon our speaker was Legal Futurist and pasr Executive Director of the Arizona State Bar Smart Forsyth. One of the things Smart rold us was thar the whole area of legal ......rch databases was headed toward a direction where the raw information would become very much like a commodity, available at a very reasonable cost. Value, if th... were any, would be in the packaging of that information for ease of access and use.

"Well, we're a voluntary bar association, and we have to be tealistic,' Daily said. "We have to give our members something more than just the satisfaction of working for the good of the order. We have a certain amounr of mass purchasing power. We should use that to secure member benefits. So we thought perhaps we could wholesale-buy legal m;earch resources and give them to our members as a benefit," he said.

10u ale DOt care6d.

"SciII, I'm not that old, and 1 baml't been doing this that 1ong. My conlaDporarics and 1 have wimascd the entiJe oI&e ...mnjcal JeYOlution. We'w gone Iiom being just smart people to smart people using smart machines. Arkansas VenusLaw is an example ofthat.

"A one-room country law oI&e in, say, Ozatk, can, with only an iJleIpcnsift personal computer, ba.., a library IiR you ona round only in the law school..

And tbac's mo", to come. You have to be adted about that. It doesn', mean that one lawyer is going to be able to tum out " blt_worl<, although that lawyer will probably be able to tum out S8I1InIIIN# mo", worl<, What it means is that the lawyers work should rach a much high.. quality."

Tom is quick to say that the Association's greatest

cbaIIenge over the nest few ~ will be financial. "The Bar Awyj.tio.. needs to return to a point of budget surpluses," Daily said. "One of my goals is to get the

Association on solid IinanciaI lOoting fur the futuR:o We need to have a 1Dpc DMie lMiJ, htHJs th< Bibk whik Chief}usti« w.H. "Dub" AmiIIJ- . ,,, th< J06th PmitImt uflk A'*"- Btu ~

no- A. DtdJy. LeIb J""p WnWJJ Griffm IIIIIi Tl11li DIU" IIisiI daring Ik AnIUllll M4ni1Ig. AIlMa TI1III SGwlIIIIfiuhn'. HIII'I] P. DlUly. Ik 34th PmUlmt .fth< A'*"- Btu Ass«ituitm.

So the TasIdOKe on FutuR: 10_ PreRnt ..... born. Ii principle product: Arkansas VenusLaw. For those DOt acquaioted with Arkansas VmusLaw, it is a join, 1epI-.d> product ofVenusl.aw and the Arkansas Bar Associarion It is IRe to III members of the Association and dcIivers a vinuallaw Iibruy which eva> contains materials DOt awilable II • wholt Iiom any other 1JUcmer Iocarlon.

E.... the rechnology junkie, Daily said he is "fueinated by the empowmnent of Iwdwue and soJtwue. I'm getting mer it a Iitdc bit. Arty sensible godr probably goa duoush these pbasa. I'w 1amed that compuras have the poundal to be the greatest rime..-. of our Iifedma, but they can also be oerious rime-wuren if

dear unclmancling of our UjJ n•• and where ""' can find additional income. For exampIe. ""' have bad a wondaful arrangement wilh UALR within the Bar Center fur marty,an. but ia term has expiJed. No muter what ""' do lIeD, the R:nt is going up."

AJrhoush the Daily's ..., busy, they do ba.., sevenl hobby interau. They both 11M to cook. 1ncIeed part of their ,..."".Jdi,,& project in¥01va aD impnwed kitchen.

"Debbie waoted to tqIIaoe mother's coolr top," said Tom. "I kind of resisted. After al1, it is only about five ~ old and is one of

COi'''''_

OIl

JIIIII'-

Young L.l\!\yers Section Report

YLS has many worthwhile programs A5 the Arkansas Bar Association celebrates anmher outstanding Annual Meeting in Hor Springs. I am anxious and excited aoom new year in the Young Lawyers' Section. First I want (0 acknowledge Cindy Three for her leadership and vision as last year's section chair. Her tireless effons proved instrumental in keeping OUf section on course and moving forward.

I recently had the opporrunicy to attend the executive recrear at Judge John Stroud's cabin on Lake Greeson. It was a wonderful opportuniry for the leadership of rhe Arkansas Bar Association and the Arkansas Bar Foundation to discuss the key issues facing OUf respective organizations. The inforrna.! serring was idea.!ly suired for hea.!thy and positive debate on the future of the bar.

During our time together. I had the opportunity [Q share with the leadership several goa.!s of rhe Young Lawyers' Secrion, as well as my vision for the section over the next

me

year.

As with any organization, I believe we should continue to build on our successes.

The YLS maintains several important projects. One of the most successful is the Lawyers for Literacy project begun by Mark Hodge. Mark was recently honored by the Arkansas Bar Association during the annual meeting for his work on this project. The

concept is simple. lawyers take a lunch hour occasionally and read to elementary school children. Both lawyer and student share in the persona.! rewards of this fulfilling program.

The YLS is also responsible for coordinating any Disaster Relief Services that may be needed in the aftermath of a disaster, as declared by the Srare of Arkansas and the Federa.! Emergency Management Agency (FEMA). Although we have been fortunare in the past months. fluctuating weather in Arkansas makes natural disasters possible at any time. The YLS has a program to train attorneys to assist disaster victims with legal needs following a stabilization period after the disaster.

An exciting new program that Cindy Thyer has been working on is the Junior Judges program. This program is designed to educate minor children who are going through court proceedings, to understand what is happening to them and who the various participants are they will encounter. As a practicing family law attorney, I am particularly impressed with this concepr and look forward to working with Cindy to ensure its success.

The YLS has many other projects thar are tOO numerous for the scope of this article; however, I would like to express my appreci-

by Paul Dumas

ation and support to the members of the YLS Executive Council for their hard work and dedica.rion. Without them, none of these worthwhile programs would be possible.

My vision for the section over the next year is relatively simple. Continue to improve and expand on our various programs. while at the same time increasing participation in the section by irs members.

Too many young lawyers are not aware of the opportunities and needs of our section.

If we can tap into their numbers. we can experience measurable improvements in all our programs and projects. My challenge to the section membership is to spread the word that being active in the Young Lawyers' Section is a meaningful and rewarding experience. Not only are you enhancing the image of the profession. you are providing needed services to your fellow Arkansans. And a.!1 of this is accomplished while you are making new friends and meeting future colleagues.

If you are currently an active member of the section, thanks and spread the word. If you have not been active in the past, let me extend a personal invitation for you ro get involved. I am excited about the direction the Young Lawyers' Section is headed this year. and I invite you ro be a part. _

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_Lo~p:.-i_n_io_n_s Judicial Advisory Opinions are written and provided by the judicial Discipline and Disability Commission. Full texts are available online at Ww\.v.sta[c.ar. usl j cad index. h tm I Advisory Opinion 2003-02 May 6, 2003 The Arkansas Judicial Ethics Advisory Committee issued an advisory opinion [Q Circuit Court Judge Vicki S. Cook of Hot Springs. Arkansas. She requested an opinion as ro whether she could serve on the Arkansas Commission on Child Abuse, Rape and Domestic Violence and possibly chair the Commission withaur being in violation of the Arkansas Code of Judicial Conduce. The opinion states that while the judge may not serve as Commission chair, with a number oflimirarions, the judge may serve as a member of the Commission.

The opinion notes that Arkansas Code Annotated 20-82-20 I creates the Commission. The mere fact that legislation provides for judges to be on certain governmemal entities does not in itself preclude an independent evaluation based on ethical standards.

Canon 4C2 provides in part: "(2) A judge shall not accept appointment to a governmemal committee or Commission or other governmemal position that is concerned with issues of faa or policy on matters other than the improvement of the law, the legal system or the administration of justice."

(Empbasis suppLied) If this governmental Commission does nOt meet this strier Standard the judge should not accept appointment. Arkansas Code Annotated 20-82-206 sets forth t\.velve enumerated areas that are the responsibiliry and authority of this Commission.

A judge may be a member of a commission which has a broader scope if the judge limits his or her participation only to me matters concerned with me improvemem of the law, the legal system or the administration of justice. As a general proposition, we believe this Commission is concerned with the administration of justice and the legal system, and that a judge may serve on the Commission in a partial capacity. However, certain propo ed functions Or tasks of the Commission present particular dangers that appear to violate provisions of the Code of Judicial Conduct.

These functions or tasks that appear to

28

n,e Arkansas Lawyer

www.arkbar.com

conflict with the Code are: (I) Administering and disbursing funds through the Children's Justice Act and grams.

Participation in mis area will of necessity cause the judge to deal with individuals or agencies that may appear in court and would cast reasonable doubt on the judge's capacity to act impartially. Canon 4A (I) (2) Receiving and expending grants and donations for the purposes under the act. A judge should not be involved in any way in fund-raising. Canon 4D (3) Coordinated investigation and service delivery to child victims of severe maltreatment. It could result in a conflict of inrerest and the judge could possibly be dealing with persons who could likely appear in court.

Canon 4B (4) Reviewing instances of child deaths. A strong general consensus of advisory opinions in this area is to the effect that a judge may not participate on a commission that conducts fatality reviews.

(5) Support, coordination and technical assistance to providers of services for victims. See comments in Number 3 above.

(6) Advise the Governor. This could creatc a problem of separation of powers.

Canon 4C (I) (7) Contract and be contracted with. To negotiate or otherwise deal in contract matters could create a conflict of interest, would demean the judicial office and improperly use the prestige of judicial office.

A portion of the Comments under Canon 4C(2) is quoted as follows: "The appropriateness of accepting extra-judicial assignments muSt be assessed in light of the demands on judicial resources created by crowded dockets and the need to protect the courts from involvement in extra-judicial matters that may prove to be controversial.

Judges should not accept governmental appointments that are likely to interfere with the effectiveness and independence of the judiciary." If the judge's service on this Commission will nor violate the spirit of this Comment and Other relevant provisions of the Code, the Judicial Ethics Advisory Committee is nor prepared to opine that service will necessarily be in violation of the Code of Judicial Conduct. It is the opinion of the Advisory Committee that the judge should nor serve as chair of the Child Abuse, Rape and Domestic Abuse Commission.

_ Advisory Opinion 2003-03 May 12,2003 The Askansas Judicial Ethics Advisory Committee issued an advisory opinion to Circuit Court Judge John R. Scott of Bentonville. Arkansas. He requested an opinion whether a circuit judge, in the capacity of an administrative judge, may appoint a pan-time district judge to perform judicial duties at the county jail.

The Committee noted mat the judge would function in a capacity similar to a magistrate; that is, reviewing probable cause affidavits, issuing search warranrs and arreSt warrants, conducting bail bond hearings. appointing me Public Defender, and similar tasks. For these services the judge would be compensated by the county, over and above the compensation received for serving as the district judge.

The Committee stated that the Arkansas Code of JudiciaJ Conduct permits a cOlHinuing part-rime judge (sllch as a district judge) to engage in the private practice of law, to own and operate a business, to be a director of a bank, to be compensated for speeches or books, and to participate in similar activities. Canon 4(D).

The Committee found nothing in the Code ofJudicial Conduct that bars a district judge from accepting additional judicial responsibilities and from being compensated for them.

The narrow conclusion is that the Code of Judicial Conduct does l10t prohibit extra compensation, nor does it provide a basis to demand or require such compensation.

Advisory Opinion 2003-01

June 17, 2003 The Arkansas Judicial Ethics Advisory Committee issued an advisory opinion to District Court Judge Donald Goodner of Scott COUllty. Arkansas. He requested an opinion concerning actions of me city attorney involving a defendant charged with OWl second offense who tested at .24 BA .

Judge Goodner stated in his request that he believed that the city attorney planned to refuse to put on the State Trooper, or any other witnesses because he does not want the defendant to lose his COL license.

Judge Goodner asked the following quesnons: I. Must he report the city attorney's actions co the Professional Conduct Continued on page 37

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For more information, contact Virginia Hardgrave, Arkansas Bar Association, 800-609-5668, OR CHECK OUT THE ClE PAGE at

501-375-3957, vhardgravc@arkbar.com wwwoarkbar.com

Vol. 38 No. .lISulllmcr 2003

The Arkansas lawyer

29

Disciplin;'lIj Actions Fhlal actiollS from March 26, 2003. through July J 1,2003, by the Comminu on ProftJS;onoi Conducl. Summflri~s prepared by the Office of

Arkansas Supreme Coun No. 03-633, a petition

Professional Conduct. Full rext docummts are available o,,~lint Ilt http://collr/J.SlaIt. liT. IIs/colirts/cpc. hrm/.

by Greg Fiddler, No. 2003-010, a complaint by

DISBARMENTS FILED, KEN

ETH G. FUCHS, #81063, Conway, as

for disbarment was filed June 6, 2003, based on Committee action in No. 2003-001, a complain(

June 12, 2003.

MICHAEL A. PRICE, #81133, Sherwood, as Arkansas Supreme Court No. 02-1328, a peti[ion for disbarmem was filed December 10,

Circuit Judge John Dan Kemp, and No. 2003· 013. a complaint by Terry Turley. The petition

2002, based on Comminee action in

was dismissed on motion by the Committee by

112, a complain( by limothy Stallings and

Coun Order on July 3. 2003. after the Court accepted the surrender of Mr. Fuchs' law license

Summer Emley, and No. 2002·119, a complaint

by Judge Susan Webber \'(frighr. Trial was conducted before Special Judge Jack Lessenberry in April 2003. and the case is pending.

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SAM WHITFIELD, JR., #82056, Helena, as Arkansas Supreme Coun No. 03-768, a petilion for disbarmenr was filed July 3. 2003. based on Committee action in No. 2002·166, a complainr

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SURRENDERS, KENNETH G. FUCHS, #81063, Conway, in Committee No. 2003-076 and Arkansas Supreme Court No. 03-633, on june 12,2003. the Coun accepled the surrender of Mr. Fuchs' law license in lieu of pending disbarment proceedings from a petition for disbarment filed June 6, 2003.

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KENNETH G. FUCHS, #81063, Conway, in Arkansas Supreme Court No. 02-1234. on june 5. 2003. was found to be in contempt of the

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on September 3,2002. and for failure to produce trust account bank records to the Office of Professional Conduct pursuant to twO subpoenas issued in 2002. Mr. Fuchs was ordered jailed umil he complied with these two items. He was

C"rtlllt>d Puoll.. Alcount.mts A Prntt."ssllHlJllll111tc-d COll~·Wl\ -t25 Wt·.. ll ';Jplt~)1 Sllltl..' 330)·1 Ittlt' Rn... k. Ark.lIlS<.I'" 72_01

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Lawyer Disciplinary Actions was dissolved as being rendered moot by the

Turner. Turner was a cooperating government

ment. Walker's settlement sheet reflected the

Coun's acceptance of Mr. Fuchs' surrender of his law license June 12,2003.

witness. At Wilson's direction Turner worked

Srare Farm claim, but rhere was no proof it was

with others to pur together a plan by which she

paid. Stare

billed another lawyer for work she did nor per-

November 2000, and gOt a default judgment in

Farm finally sued

Walker in

form, and then she paid a portion of her check to

March 200 I, which was paid in March 2002,

REINSTATEMENTS FROM SUSPENSION,

Wilson. She also prepared grant applicatjons for

four years aftcr the scnlemenr and after

the new Stare anorney ad lirem program and was REGINALD SHELTON McCULLOUGH, #85102, L;,tlc Rock, in No. 2003-073, on June

awarded and funded $375,000 to operate such programs in twO judicial districts. Other attor-

Lookadoo filed her disciplinary complaint in 200 I. Walker answered thar the Buckley file was

20, 2003, was reinstated by Comminee panel

neys in on the plan were to receive substantial

verify the obligation. He allowed the defaulr to

vote £0 the practice of law after a 30 day suspension that began April 18, 2003.

sums from her from her program grants for consulting fees or for legal work. After a few months,

be raken against him on advice of counsel.

Walker was also ordered to pay costs of $858.64.

misplaced in an office move and he was trying

to

she resigned her position wirh the program and returned all but abour $6,500 of rhe funds to the State. She agreed her conduct violated Model

SUSPENSIONS,

REPRIMANDS,

Rules 8A(b) (a criminal act), and 8A(c) (conduct PAUL E. HERROD, #84070, North Lirtlc Rock, in No. 2002-084, on a complaint by David Clark, by Ord« Mled May 16, 2003, for

thar involved dishonesty, fraud, deceit or misrepresentation).

violarions of Model Rules 1.16(b)(I), 3.3(a)(2), 3.4(b), 3.4(c), 4.1 (b), 8.4(c), and 8.4(d), was sus-

WOODSON D. WALKER, #76135, L;rrle Rock, in No. 2001-088, by agreement began a

pended for three (3) monrhs effective that date, fined $1.500.00, ordered fa take rwo additional CLE "ethics" hours, ordered ro pay costs of $204.94, and required to send a lener of apology to the presiding judge in the cOLIn case, on a guilty plea for his conduce in represeming Lance Burrow in Faulkner Circuit Coun on criminal charges in 200 1. Herrod essentially allowed his diem Lance Burrow to go through the court proceeding, and receive a probation sentence, using the name of his brother, Thomas Burrow. Lance Burrow was on probation from a drug offense at the time, and Thomas had no criminal record.

Herrod failed to correct the error even rhough he was aware of his dient's "borrowed identity" at the rime. The deception was discovered when L1nce failed to report to his probation office in Pulaski County. Herrod claimed he felr the "client confidence" requirement of Model Rule 1.6 kept him from disclosing his c1iem's false statements made in court. Herrod also used the wrong name for his client in some pleadings he prepared and filed.

one year suspension of his law license on April 21, 2003, when he dismissed his appeal in the Supreme Court, Case No. 03-86, of the Committee's Order of Suspension hied June 27, 2002, in Comminee No. 2001-088, a complaint

by Lizabeth Lookadoo for State Farm Bureau Automobile Insurance Company, for violating Model Rules 1.4(a), l.15(b) and 8.4(d). Withou,

ANN C. DONOVAN, #78043, Fayetteville, ;n No. 2002-152, by Order filed May 28, 2003, on a complaint by Kara New, for violarions of Model Rules 1.4(a) and 1.16(d), was reprimanded and ordered to pay costS of $50. The News hired Donovan ro represent them in a private adoption and paid her a partial fee of $1,500.

The birth mother was in prison. Communications problems arose benveen rhe News and Donovan. The Departmenl of Human Services apparently got the new baby and rhe News became disillusioned with Donovan and demanded a refund of their fee. Donovan raid

notice ro State Farm, Walker sertled a personal

rhem she would credit rhe fcc on thc next adop·

injury clam for his client Buckley in March 1998,

rion, which the News declined. No fee refund was made.

afrer agreeing in wriring in October 1997

to

pro-

tect the $4,132.07 subrogation interest Srate Farm had in payments to irs insured BuckJey. State Farm learned of the settlement in

JOHN C. GOODSON, #90018, Texarkana, in No. 2002-104, by Order filed Apr;17, 2003, on

December 1998 from the carrier for the other party, and thereafter made repeated demand on

a complaint by David W. Fisher, M.D., now of McAllen, Texas, and formerly of Texarkana, for a

Walker for its subrogation funds from the senle-

violation of Model Rule J .15(b), was reprimand-

ELiZAllETH B. TURNER, #90181, Li,de Rock, in No. CIV-2001-12175, Pulaskj Circuit

* Do Justice * Love Mercy *

Court, by an Agreed Order of Discipline entered April 28, 2003, concluded a disbarment proceeding by accepting a five (5) year suspension that started September 20, 200 I, and agreed

to

Dickerson

pay a

fine of $9,000.00 in three equal annual install· menu. Ms. Turner was involved in a series of events involving then·Statc Senator Nick Wilson and others in a child support program initiated by the State of Arkansas in mid-1997, which led to the filing of federal criminal charges against Wilson and many of the parricipants, but nor

Dickerson

Law Firm, P.A. Seeking Attorneys

Law Firm, P.A., Arkansas' leading debt relief firm and largest personal

injury/disability firm is seeking attorneys for bankruptcy and personal injury. Excellent salary and benefits. Opportunity for growth and advancement. Training available.

Law Firm, P.A., 110 Woodbine AR 71901, Fax: 50 I 321-9848

Send resumes ro: Gail D. Ashmore, Dickerson Hot Springs,

Vol. 38 No. :VSulllmer 2003

n,e Arkansas Law)'er

31

Lawyer Disciplin;'IIY Actions cd and ordered fa pay costS of $50. In a personal

a federal suir. After Kroha filed suit in March

injury case, Goodson issued a "Icner of protec-

1995. Smith had great difficulty communicating

1.3. 1.4(a). 1.4(b). and 8.4(d). McCullough was

tion" to Dr. Fisher for his

with Kroha. In January 1996 Smith contacted

hired and paid a retainer of $1,850 in January

twO

diems' medical

treatment totaling $4,404; failed to deliver the appropriate settlement funds to Dr. Fisher. who had a medical lien filed; then claimed he was unable to locate Dr. Fisher, so distributed the balance of the settlement funds to his clients. Dr. Fisher contacted Goodson on Fisher's new lenerhead and was £old the case serried for less than anticipated and Goodson had no funds left 10

to pay COStS of $50 for violarions of Model Rules

another lawyer whose office was across rhe hall

2001 ro represent the Mays, previously his

from Kroha's office and requested assistance in

clients, in a suit against them by a builder arising

contacting Kroha. In March 1996 Smith learned

out of construction work on their propeny. The

his suir had been dismissed. The other anorney

final installment was alleged

advised Smith that Kroha was roo embarrassed ro

which the Mays were holding. McCullough filcd

tell Smith what had happened. The suit was dis-

a answer for them, but not the promised counr-

missed in August 1995, several months before

er-c1am for fraudulent or defective work. No

(Q

be $67,000,

Kroha's personal assurances to Smith that every-

more pleadings were filed for the Mays and judg-

pay Dr. Fisher.

thing was "OK," because of no service on the

ment was entered against them in September

defendant. Kroha could not be located for service

200 I. Judgment was entered because the court

HEATHER P. HOGROBROOKS. #92029.

Memphis. TN. in No. 2003-006. by O,de, filed May 14, 2003, on a complaint by Roben Lee

of the Committee's bailor vote order until early

smICk the Mays' answer for failure

2003. He then responded that he has essenrially

with orders to compel discovery, which orders

left privare law practice in 1996 due to personal

McCullough had nOt provided ro his clients.

Davis, was reprimanded and ordered to pay

problems, and worked at other non-legal jobs.

COStS

of $50 for violations of Model Rules 1.1 and

to

comply

Eight days later McCullough filed a motion for the recusal of rhe trial judge, the timing of which

8.4(d). Ms. Hogrobrooks represented Davis in a

DANIEL J. KROHA. #75073. Ho, Sp,ings. in

puzz.led his clients. Plajmiff then successfully gar-

criminal matter in 1995-96. He was tried and

No. 97-047, by Consent Order filed June 20,

nished the Mays' bank account for over $80,000.

sentenced to thirry-three years in prison. She

2003, on a complaint by Mary Helen Ayers, was

The Mays complained that McCullough did not

filed a notice of appeal and his abstract and brief.

reprimanded, fined $250, and ordered to pay

respond to their frequent requests for informa-

raising only the issue of "speedy rrial." In June

COStS of $50 for violations of Model Rules 1.3,

tion about their case and refused to speak with

1996, the Supreme Courr issued its opinion

1.4(a). 1.16(d) and 8.4(d). Mr. K<oha was hi,ed

them after the garnishmem. They claimed they

holding the abstracr was so deficient thar the

(Q

represent Ms. Ayers in a claim arising from a

got their information about the case from the

conviction must be affirmed. Ms. Hogrobrooks

mO[Qr vehicle collision in 1993. Starring in 1996

clerk's office. McCullough said that Mrs. Mays

responded to the Committee that everything the

she was unable [Q contact Kroha about her mar-

told him nor to take further action in the case on

Court needed ro fully consider the "speedy trial"

ter. Kroha filed suir for her in April 1996 and

their last conract.

issue was in her abstract, and that she had no

later gOt an extension of time

(Q

perfect service.

comrol over the appellate court, having fulfilled

In November 1996 Kroha filed an amended

her duty to her client.

complainr and rook no furrher action for her.

Her claim is now time-barred. Kroha could nor

a Per Curiam Order referral from the Supreme

DANIEL J. KROHA. #75073. Hot Sp,ings. in

be located for service of the Comminee's ballot

Court in a case involving Brian Gooden,

GENE E. McKISSIC. #76075. Pine Bluff. in No. 2002-157. by O,d« filed April 9. 2003. on

No. 96-112, by Consent Order filed June 20,

vote order until early 2003. He then responded

Appellant, was reprimanded, fined $150, and

2003, on a complaint by Theodore Smith, was

that he has esscntially left private law practice in

ordered to pay cosrs of $50 for violations of

reprimanded, fined $250, and ordered ro pay COStS of $50 for violations of Model Rules 1.3,

1996 due to personal problems, and worked at other non-legal jobs.

filed a notice of appeal for Gooden in 1995, bur to

do

and paid a $500 retainer in 1994 to represent Mr.

REGINALD SHELTON McCULLOUGH.

so by the Supreme Coun in 2001. He Failed

(Q

Smith in an age discrimination claim. Smith was

#85102, Little Rock, in No. 2002-110, by Order

timely file Gooden's brief, and was found to be in

obrain a righr-ro-sue lener from the

filed May 28, 2003, on a complaint by Sedrick

contempt by the Court, fined $250, and referred

EEOC and then come see Kroha for Kroha to file

and Kathy Mays. was reprimanded and ordered

to the Committee.

1.49a). 8.4«) and 8.4(d). M,. Kwha was hi,ed

advised

to

Model Rules 1.3. 3.4(c) and 8.4(d). McKi"ic did not file the record until he was directed

Business Valuations Comprehensive Technical Expertise in Business Valuations. Forensic Accounting, and Consultations for Trial Testimony Certified Public Accountant (CPA), Master Certified Business Appraiser (MCBA), Accredited Senior Appraiser (ASA), Accredited in Business Valuations (ABV), Certified Fraud Examiner (CFE)

RONALD CAREY NICHOLS. #90009.

Cadisle. in No. 2003-004. by O,d« filed July 9, 2003. on a Per Curiam Order referral from the Supreme Court, was reprimanded, fined $250, and ordered

to

pay cOSts of $50 for violations of

Model Rules 3.2 and BAed) in a case involving

Expert Witness Testimony Court-Appointed

Charles Dugger. Nichols filed a notice of appeal

Schwartz & Associates. CPAs 11510 Fairview Road, Suite 100 Little Rock, AR 72212-2445 (501) 221-9900. (501) 221-9292 fax email: schwartz@busvalu.com

appeal.

for Dugger in March 2001, but failed to perfeer the appeal Dugger filed a motion for belated

Richard L. Schwartz

ichols had nor been relieved as Dugger's

counsel, and he failed to comply with the Court's Order of Ocrober! 0, 2002, to lodge Dugger's appeal record. Nichols pled guilty

to

a contempt

charge before the Court, which referred him to the Committee. Nichols responded that he went

32 11,C ArbllS"' L"")fcr

www.arkbar.com

Lawyer Disciplinary Actions ro the clerk's office ro pick up the transcripts and was raid rhey had already been picked up by a lady he was subsequently unable [0 identify.

Nichols also scated that Dugger owed him over $3,000.

Office of Professional Conduct relating to the represemation of Andrew Harvey Firm by Revels in 2000-2001 and a partial audit of Revels' trust

1.15(b), 1.15(e), 115(f), 8.4(a), 8.4 (c) and BA(d). Stune represented Tammy Wilson in a personal injury claim. As part of their divorce, in

account, for violations of Model Rules 1.3,

2001 Tammy Wilson assigned her interest in a

1.I5(a)(1) and 8.4(e) was reprimanded, foned

settlement form the claim to her ex-husband,

pay COSts of $125. Mr.

Lendell Wilson. Srumc communicated with Mr.

Revels represented Mr. Firm in a claim against an

Wilson even though he kncw Mr. Wilson was

insurance company concerning damages to Firm's truck, which claim was settled by payments to

represented in the maner by an anorney. In February 200 I, Stutte received $25,000 in senle·

Mr. Revels which were not deposited immediate· Iy because Mr. Firm was not sure if he wanted to

ment funds from the insurance company in two checks. and disbursed $4,000 to his client, Ms.

$2,500 and ordered

lO

JAMES R. PATE, #70055, Russellville, in No. 2003-029, by Consent Order filed May 28, 2003, on a complaint by E.stalee Ford, for violations of Model Rules 1.1, 1.3, 1.4(a), 1.4(b), 8.4(a), 8.4(e), and 8.4(d), agreed to a reprimand, a fine of $950, COStS of $50, and to make restitu-

accept the amount. Mr. Firm thought Revels had

Wilson, whom he says he not scen or been able to

tion

the diem of $2,500. In May 1991, Mr.

filed a lawsuit for Firm because Revels presented

Pate accepted representation of the Fords in a

him with a purported order from a court suit which had a case number on it. Revels prepared

contact since. Mr. Stutte paid Continental Casualty $14,204 on it subrogation lien in Ms.

10

poultry grower action against a large poultry company for breach of contract, on a contin-

gency fce plus a rerainer of $2.500. Suit was filed bur never set for trial. The case was dismissed witham prejudice in September 1994, but Mr. Pare did nO( notify his clients of this action. As late as 2002, Mr. Pare was advising Mrs. Ford (Mr. Ford had died) he was still workjng on the case and it could still go through. The Ford claim is now time· barred. Mr. Pate responded that he worked on many marrers over the years for the Fords, trying to save firsr their poultry farm and later just their homestead for them when they were in bad financial shape. He said he did not know the NewtOn County suit had been dis~ missed until he received the Comminee's com~

this false document and another one, which purpofted ro be a judgmcnt obtained for Firm, and on which Revels purported to have a garnishmenr issucd. Revels later settled Finn's matter in a man~

Wilson's maner. Between February 9, when he depositcd the settlement funds in his trust account and February 23, when he sent the check to Conrinental Casualty, the balance in Srunc's trust account fell several thousand dollars below

ner that Firm found satisfactory and Firm thereafter declined to cooperate with the Office of

the amount needed to pay Contincntal Casualty.

Professional Conduct in its investigation of his complaint. Revels' IOlTA mist accounr records

Mr. Wilson. Stutte deposited the insurance settlement check into an acCOunt that was nOt his

were subpoenaed and revealed (I) thc Firm set·

approvcd IOLTA trust account.

No parr of the settlement funds was cver paid to

dement checks were held for four months before deposit, (2) the funds were not mainrained in the trust account until paid over to Mr. Firm until June 3, 200 I, eleven months after receipt

by Revels, and (3) the account balance fell

TONY THURMAN, #99037, Mountain View, in No. 2001-134, by Order filed April 23, 2003, on a complaint by

eil Deininger, was repri-

below the minimum amount that should have

manded on the misconduct, and also separately fined $500 for failure to file a response to the

plaint in 2003. He expressed remorse for the sit-

been in it for the Firm matter during three

Committee's complaint, for violations of Model

uation and promptly offered a consent resolution

separate periods.

Rules 1.2(a), 1.3, 1.4(a) and 3.2. In 2001 the

to try to mitigate some of the cliem's loss.

RALPH M. PATTERSON, #68048, North Little Rock, in No. 2002-179, by Order filed July

CHARLES L. STUTTE, #83174, Fayetteville, In No. 2001-133, by O,der filed July 2, 2003, on a

Nishiuchis hired Mr. Thurman to represent them in a Chapter 13 bankruptcy. They had tax liabilities. Mr. Nishiuchi had health problems, could

complaint by Lendell Wilson, was reprimanded,

not work, and they could not make rcquired pay·

9, 2003, on a complaint by lerry Ezell, was rep-

fined $1,000, and ordered to pay costs of $50

ments during the life of a Chapter 13 plan due to

rimanded and ordered to pay costs of$50 for vio-

for violations of Model Rules 4.2, 4.4, 1.15(a),

reduced income. The Trustee moved to dismiss

lations of Model Rules 1.3, 1.4(a), 3.4«) and 8.4(d). Mr. Patterson represented Mr. Ezell in an attempt to get his child support modified. Ezell's ex·wifc defauhed at a hearing in April 2000, the judge ordered seven mom:hs of child support to be removed from Ezell's arrearage, and P:merson was lO submit the order to the Court, which he f.1iled to do. Ezell did not hear from Panerson

Edgar J. Tyler IS PLEASED TO ANNOUNCE THE RELOCATION OF HIS OFFICE TO 904 FRONT STREET CONWAY, AR 72032 UUST NORTH OF TOAD SUCK SQUARE)

again after the hearing. The court wrote Panerson in June 2000, asking for an order. Ezell called Panerson from his

Out

of state home in March

2002 asking about the matter. Patterson respond-

ed that he was au( of the office during this period with major health problems, and admined he had failed to obtain the favorable order from the

TRACY ANDERSO LEGAL ASSISTANT TRACYA@lpANET

EDGARJ. TYLER ATTORNEY AT LAW ED@EDTYLER.COM

2000 hearing.

PAUL E. REVELS, #91110, DeQueen, in No. 2002-056, by Order filed April 9, 2003, on a

PHONE; 501.336.9099 FAX: 501.336.9089 LR PHONE: 50[·375.4200

MARCH 3, 20C13

complaint based on information obtained by the

Vol. 38 No. VSummer 2003

The Arkansas Lawyer

33

Lawyer Disciplin;JIY Actions PUBLIC NOTICE The currem [crm of office of United States Magistrate Judge Beverly Stites Jones is due to expire November 29, 2003. The Unired

States

District Court for rhe

Western District of Arkansas is required by Jaw to establish a panel

of citizens co consider the reappoimmcm of the magistrate judge ro a new eight-year tcrm.

The duties of me magistrate judge position include the follow-

ing: conduct of preliminary proceedings in criminal cases; trial and

disposition of misdemeanor cases; preliminary proceedings in social

security and prisoner perJ[lon cases; other proceedings on delegation from the judges of the district court; and triaJ and disposition of civil cases upon consem of the lirigants.

Comments from members of the Bar and public are invited as to whemer the incumbent magistrate judge should be recommended by

the panel for reappoinanenr by the court and should be directed to:

Nicholas H. Patton, Chairman Advisory Panel PO. Box 5398 Texarkana, Texas 75505-5398

Comments must be received no larer rhan September I, 2003

34 The Arkansas la\'Yer

www.arkbar.com

their plan. The Nishiuchis consulred another anomey with subsmmial tax experience, who advised rhem to dismiss their bankruptcy and to me an Order of Compromise with the taxing alUhorities in an effon (0 deal wilh their lax liabilities, which were not dischargeable in their bankruptcy. The rax anomey so advised Me. Thurman. Thurman rhereafrer filed a motion (0 convert rheir Chapter 13 plan 10 a Chapter 7liquidation, without notifYing his c1iems of this aClion. Communications ensued among the c1iems, the tax attorney and Mr. Thurman, to the effect that Thurman was pursuing a course of action the dients were nor desiring or authorizing. Thurman failed to dismiss the bankruptcy even afler receiving written authori7..ation from his diems to do so. The coun dismissed the bankruptcy for failure to conven. Thurman's conduct delayed an Offer of Compromise for five months, as one could not be filed while a bankruptcy was pending.

JAMES O. WYRE, II, #94056, Conw.y (formerly of F.yeneville), in No. 2002-102, by Order filed April 9, 2003, on a complaint by Bankruptcy Judge Raben F. Fussell, was reprimanded, ordered to pay COStS of $50, and referred ro the Arkansas Lawyer Assinance Program (ArLAP), and funher action and possible sanctions deferred by the Committee for six monlhs pending a review of his progress at ArLAP, for violations of Model RuJes 1.16(d), 3.3(.)(1), 3.4(c), 8.4(c) and 8.4(d). Mr. Wyre represented a client in an adversarial proceeding in a bankruptcy. A notice of a new trial setting on December 18, 200 I, was sent [0 Wyre at the firm where he practiced when he emered his appearance for the diem on OClOber 30, 2001. In November Wyre left the firm, srated he attempted ro give the file back to another firm attorney, bur the attorney refused to rake it. Wyre filed an amended answer December 4, but failed to comply with a pre-rriaJ order, which required filing a list of witnesses and exhibits. Wyre and his client failed to appear for trial, which took place without their presence. Wyre explained thai during the week before rhe trial a number of personal problems hit him. He claimed he contacted the court clerk and advised he would not be ar coun on the trial date. The Court issued a "show cause" order to Wyre and granted judgment to the other parry for $8,632.50 plus COSts. At the comempt hearing, Wyre advised the coun he was closing his law practice and would nor be practicing law in the future, so the court did not sanction him. but instead referred him to the Committee.

Thereafter Wyre shipped aJl his diem files ro the COUrt with no return address and no indication he had contacted his clients to advise them of his

situation, The coun was required to attempt to contact his clients and explain the situation. A new anorney filed a motion for relief from judgment for Wyre's fonner client in the bankruplCY matter, a consent judgment for $4,000 was entered, and Wyre paid $1,000 toward sarisfuction of rhe judgment. Wyre did return to the law practice.

CAUTIONS, TONYA MICHELLE ALEXANDER, #95099, \Vest Memphis, in No. 2002-171, by Order filed July 9. 2003, on a complaint by Jerry Dewayne Johnson, was cautioned and ordered to pay COSts of $50 for violations of Model Rules 1.1 and 8.4(d). Johnson paid $900 1'0 Ms. Alexander lO represent him in an appeal from the denial of his request for post-conviction relieF. Alexander failed to abstract the record of the revocation hearing, so the Coun would nor consider the issue involving ineffecrive assistance of counsel.

ROBERT R. CORTINEZ, SR., #73022, Little Rock, in No. 2001-058, on March 15. 2002, was cautioned by the Committee on a complaint by Carolyn Russell, for violating Model Rule 1.5(a).

The f.J.CtS of the case were printed in the Summer 2002 issue of lhis magazine. In Case No. 02-822, the Arkansas Supreme Coun affirmed the Committee on appeal and cross-appeal in a decision issued May 1, 2003.

N. DONALD JENKlNS,JR., #94231, Aim., in No. 2002-183, by Order filed July 2, 2003, on â&#x20AC;˘ complaint by Dierk Van Keppel, was cautioned. fined $500, and ordered to pay COstS of S50 and restitution to Van Keppel of $250 for violations of Model Rules 1.1, 1.2(.), 1.3, .nd 1.4(.). In March 2001 Van Keppel, a Kansas resident, hired and paid Jenkins lO represent him in a debt colIecrion matter. Jenkins filed SUil in Crawford County. A motion for dismissal aJleged wrong venue, Jenkins filed a response. Van Keppel thereafter had difficulty communicating with Jenkins concerning discovery maners. In June 2002, Van Keppel contacted another Arkansas anorney for assistance, and wrore terminating Jenkins' services. New counsel learned the suit had been dismissed in October 2001, which faCt Jenkins had failed to inform Van Keppel.

WILLIAM BRUCE LEASURE, #83109, Litde Rock, in o. 2002-169, by Consem Order filed May 28, 2003, on a complaint of solicitation, was cautioned. fined $250 and ordered to pay costs of $50 for a violation of Model Rule 7.3(d).

In July 2001, following his involvement in a

L3wycr Disciplimry Actions mowr vehicle collision, Mr. Leasure sent

to

Henry Floyd a solicitation [cner that did nor dis路 dose how the information contained therein was obtained.

ROY C. "BILL" LEWELLEN, #82093, Marianna, in No. 2000-134, on August 28, 2002, was cautioned on a referral from the Arkansas Supreme COlin arising from his participation in the case of Terrance Robinson and Tamagum Robinson v. State, CR路99路112. for violating Model Rules \.1 and 1.3. The facts of the case were primed in the Spring 2003 issue of this magazine. In Case No. 02路1199, the Arkans3s Supreme Court affirmed the Committee in a decision issued June 12, 2003.

2002-151, by Order filed July 3, 2003, on a complaint by Brad Hendricks, was cautioned and ordered to pay COStS of $77.s0 for a violation of Model Rule 7.3(d). In July 2002, following his involvement in a mOtOr vehicle collision, Ms. Mosby sent to Gordon Henicke a solicitation letter that did not disclose how the information contained therein was obtained.

DANA A. REECE, #87142, Lirtle Rock, in No. 2002-176, by Order filed April 9, 2003, on a referral by the Supreme Court in Case No. CR~ 02-1071 (Albert Bell, Appellant), was cautioned and ordered ro pay cOStS of $50 for violations of Model Rules 1.3 and 8.4(d). Ms. Reece filed [he appeal record !:tre, failing ro gel an order extending the time for such filing. Upon her acceptance

SCOTr M. McELVEEN, #99086, Faycttev;!le, in No. 2002-168, by Consent Order filed June 20. 2003, on a complaint by Tom Clowers, was cautioned and ordered ro pay COStS of $75 for violations of Model Rules 1.1 and L4(b). Mr. McElveen represented Mr. Clowers in a divorce.

McElveen failed 10 explain the law dealing with COBRA healrh insurance issues to his client.

After the divorce, Clowers sued McElveen for professional negligence, including the COBRA matter. The coun ruJed in Clowers' favor on the COBRA issue, and McElveen paid Clowers the amount determined by the court. In his response, McElveen admiued he negligently failed to explain to Mr. Clowers his rights under COBRA, and explained he was educating himself in this area.

, \

HOLLY L. MEYER, #89094, Heber Springs, in No. 2002-153, by Order med May 2, 2003, on a complaint by Deanna Younger, was cautioned and ordered to pay costs of $50 for violations of Model Rules 4.4 and 8.4(a). Ms. Meyer represented Ms. Younger's husband in divorce, and sent Ms. Younger's elderly grandmother a notice to vacate from the residence on the Younger's marital property the grandmother rented by contract through the \Vhite River Regional Housing Authority. There were no legal grounds for the grandmother's eviction. Ms. Younger later purchased the property at auction. Ms. Younger claimed the attempted eviction was only for the purpose of causing distress to Ms. Younger and her elderly grandmother. Ms. Meyer claimed that the basis for the notice was her attempt to establish, for property division purposes. that the differ~cc: between what would have been fair market rental of the property and the actual rent being received was a squandered marital asset.

, LORI A.

Jack Davis

Sid McCollum

Bob Hornberger

Frank Hamlin

INC 500 President Clinton Avenue, Museum Center, River Level Little Rock, AR 72201 501-376-2121 1104 50uth Walton Blvd., Suite 8, Bentonville, AR 72712 479-271-2237 423 Rogers Avenue, Suite 101, fort Smith, AR 72902 479-783-1776

MOSBY, #94016, Lirtle Rock, in No.

Vol. 38 No. VSummer 2003

The Arkansas lawyer

35

Lawyer Disciplin:'IIY Actions of responsibility, the Coun gramed her motion for rule on the clerk and allowed the record to be

fiI<d.

NIX PATTERSON & ROACH,LLP

LANE H. STROTHER, #79121, Mountain Home, in No. 2003-032, by O,de, fiI<d May 19.

2003, on a complaint by Janet Bodoh, was cautioned and ordered co pay costs of $50 for a via· larion of Modd Rule 1.4(b). In November 2001 Strother was conraaed by Mrs. Bodoh's lawyer in Ohio on an issue involving her late mother's

The Law Firm of

NIX, PATTERSON & ROACH, LLP is Pleased

to

Announce that

estate, sp«ifically about contesting a will and a

truSt and for an accounting of the mother's properry. After exchanges of communications, Strother requesred a rera.iner of $2.500. After consultation with her Ohio counsd, Mrs. Bodoh made a decision to not proceed with coun action

Brady Paddock

nesses and specifically preserved the testimony of

and

a Ms. Banning, a key witness suffering from can-

Michael B. Angelovich have become Partners of the Firm.

until Mr. Strother had interviewed potential wir-

cer, who Strothcr was informed was growing more ill with rime. Strother quoted a fee of $1,000 to do this investigarive work and was paid in mid-Fcbruary 2002. Hearing nothing from Strother and becoming increasingly apprehensive abour Ms. Banning's deteriorating condition, Ohio counsel faxed SlTother a letter on April 15 with a renewed request to preserve Ms. Banning's testimony. Ms. Banning died April 24.

No word was received from Strother until a let-

The Firm also Welcomes the following New Associate

ter dated April 26, 2002, in which Strother admitted he had not interviewed twO witnesses and had nor preserved the Banning restimony. In a letter dated May 16, 2002, Strother tOld Mrs. Bodoh he knew as early as March 2002 she did

M. Elizabeth Francis Anthony K. Bruster Meredith R. Campbell

nor have a valid cause of acrion, based on his conversation wirh 2nother area attorney who had prepared rhe mother's trust documenrs. The Committex found Strother's acrion deprived his client of the timely opportunity to make informed decisions about the reprc:sem2rion.•

R. Brandon Moore M. Chad Trammell - - u s lil

3----

205 Linda Drive· Daingerfield, TX 75638 (903) 645-7333 • Fax (903) 645-2172 • Fax (903) 645-5389 2900 Saint Michael Drive, Suite 500· Texarkana, TX 75503 (903) 223-3999 • Fax (903) 223-8520 www.nixlawfirm.com

Mark Your Calendars!

Arkansas Bar Association Arkansas Judicial Council Joint Annual Meeting June 9-12, 2004 Arlington Hotel, Hot Springs, AR

I

I

36 TIle Arkansas Lawyer

www.arkbar.com

Judicial Advisory Opinions from page 28 Commirree?

2. Must he actually start the case so that when the city rests, he must enter a finding of nor guilty, or can he call the case and review the city anorney's previous court statement that he is going to rest without any testimony so that the defendanr can be tried at a later date?

3. If he is required co report the city attorney's actions, can he continue to hear cases presented by the City of Waldron city prosecutor?

4. If he cannot hear cases presented by the City of WaJdroll city prosecuror, can he appoim someone ro take his place, or must he withdraw from all cases presented by this anomey which will be a burden CO the City of Waldron.

The Commirrce responded as follows: 1. Canon 3(0)(2) provides rhat a judge

who receives information indicating a 5ubsranriaJlikelihood that a lawyer has committed a violation of the Rules of Professional Conduct should take appropriate action.

Further a judge having knowledge that a lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question of the lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects shall eirher communicare directly with respect ro the violation with the lawyer who has commirted the viol arion or repoer the violation ro the Arkansas Supreme Court Comminee on Professional Conduct. A judge should make rhis decision on his or her own based on the aforementioned rules. It is nor within the scope of the Comminee's duties to make the decision for the judge.

2. Canon 3 (B)(8) requires a judge to dis-

pose of all matters prompdy, efficiently and fajrly. Again, it is not wi thin the scope of the Committee's duties to advise the judge on how to proceed in a panicuJar case.

3. Canon 3 (E) (I )(a) provides that a judge should disqualiJY himself in a proceeding in which the judge's impartiality might reasonably be questioned including instances where the judge has a personal bias concerning a parry's anorney.

4. The judge's withdrawal is covered in the Committee's response to question 3.

The appointing of a special prosecuror is beyond the authority of the Committee, as the Arkansas Code ofJudicial Conduct docs nor cover it. However, if rhe law allows such an appointment, rhen that is to be considered. _

ArLAP ARKANSAS LA WYERS ASSISTANCE PROGRAM HELPING LA WYERS FIND PERSONAL SOLUTIONS NOW.

Assists lawyers and judges, their colleagues and families, struggling with the effects of Alcohol & Drug Abuse or Addiction Depression & Other Mental Health Issues Physical Disabilities Aging Issues Confidential Phone 501.907.2529 Confidential Email harbergails@alltel.net Website http://www.arlap.org Vol. 38 No. YSurnmer 2003

The Arkansas lawyer

37

2002-2003

Arkansas Bar Association!

Arkansas Bar Foundation Annual Award Recipients Photos, top to bottom: WOodson W "WOody" Bassett III, Stmator Dale L. Bumpers, Howard W Brill, Darrell D. Dover, Judge George Howard, Jr.

WOODSON W. "WOODY" BASSETI III OUTSTANDING LAWYER

The Outstanding Lawyer Award is givm in ruognition ofacelknu in the practice ofUzw and outstanding contributiom to the profession.

WINW.arkbar.com

SENATOR DALE L. BUMPERS

Over the past rwenty-five years. Woody Bassett has become ÂŤa model of what

OUTSTANDING LAWYER-CITIZEN

la\,{yers ought to be in their community."

The Outstanding Lawyer-Citizen Award is given in recognition ofoutstanding participation in and exulknt perftmlance of civic rerponsibi/ities, and fOr demonstrating high standards ofprofessional competence and conduct.

He has honored his profession chrough his selfless devmion of significant hours to the bcttermenr of the communiry. developing a reputation widespread among all citizens of being well-informed, open-minded, and thoughtfuL A Fayeneville native, he is considered by many in his community a mediaror ofdifficult public issues, onen committing substantial time and resources taking on significant legal work on a pro bono basis.

Woody is an outSca.nding lawyer. He is raced AV by Mareindale-Hubbdl, a member of che American Board of Trial Advocaces, American Inns of Court and American College ofTrial Lawyers. He is a senior and founding parmer of The Bassett Law Firm, has served as President of che Washingcon County Bar Association and was a Special Associate Justice of the Arkansas Supreme Court. Woody has served as an alderman on che Fayeneville Cicy Council, frequendy providing critical leadership ro the Council on difficult issues and was elected to serve a term on the Washingron County Quorum Coun.

In addition ro his service to the Bar and the governance of his communiry, Woody 38 The Arkansas la-ryer

was the President of the Board of Directors of Lifeseyles. Inc., a non-profic organization providing critical training ro persons wim significant disabilities. He has served as a member of the Board to Washington Regional Medical Foundation.

Dale Bumpers-an outStanding. bona fide country lawyer serving che legal needs of me citizens of Franklin County in all areas, from 1952 until he was elected Governor in 1970. He was the consummate country lawyer who was idealized by his peers chroughouc me legal profession. He was President of the Chamber of Commerce in Charlescon and was a member of che school board in Charleston in 1954 at a time it voted to integrate the Charleston schools.

He remains a member of the Arkansas Bar Association and a Fellow and Sustaining Fellow of me Arkansas Bar Foundacion.

His accomplishments as a "public citizen" are well known to all Arkansans. He brought Arkansas into the modern age as Governor from 1970 co 1974. He was a progressive, active governor and was presented with a Special Award from the Arkansas Bar Association for his outstanding service in 1971. Governor Bumpers was

elected to the United States Senate. serving our state and counrry wi th great distinction for four consecutive rerms. He has always been willing ro rake unpopular srands ar grear political risk. Prior to his service to the legal profession and the community, Senator Bumpers served his country in the Unired Srares Marine Corps.

As stared by President William J. Clinron, "Dale Bumpers is one of the mosr eloquent speakers ever to grace the United States Senate. He is aJso one of the wittiest.

Far more importanr, he is a good and wise man, full of timeless lessons and unshakable devotion to our Constitution and country."

has published many articles and twO books, The Law of Damages in Arkansas (3rd Edition, 1996, Harrison Publishing Company, and 2000 supplement) and Arkansas Proftssiona! andJudicia! Ethics (5th Edition, 2000, m & m Press).

In addition to his extensive service ro the profession, Howard has also been active in the Chrisrian Legal Society. a past President of the Central States Law School Association and a speaker at various CLE programs.

DARRELL D. DOVER C. E. RANSICK AWARD OF EXCELLENCE

HOWARD W. BRlLL JAMES H. McKENZIE PROFESSIONALISM AWARD

The James H. McKenzie Professionalism Award recognizes sustained excellence through integrity, character and leadership to the profession and the community which garners the highest honor to the lega! proft"ion.

A5 stated by his nominator. Howard Brill is a person of utmost integrity. respected by all in the legal profession and consideted the state's leading expert on legaJ ethics. A5 a Professor of Law at the University of Arkansas School of Law. he has many times throughout the years been selected as Professor of the Year by the Studenr Bar. He holds the distinguished designation of the Vincent Foster Professor of Legal Ethics and ProfessionaJ Responsibility.

He has demonstrated his leadership skills with his work with the Arkansas Bar Association and his representation of the University of Arkansas at the NCAA. His involvement with the Arkansas Bar has been extensive. He has served as Chair of the Professional Ethics Committee, Joint Committee for the Study of the Model Code of judicial Conduct, the Arkansas Judicial Ethics Advisory Committee and as a member of committees roo numerous to list. For many years he has been the Reporter for the Professional Ethics Committee in which capacity he leads the process for writing the Ethics Advisory Opinions requested by members of the Arkansas Bar Association. He served on the Governor's Ethics Task Force and the Governor's Code of Ethics Commission. He

Given in recognition ofextraordinary servia to the ltglll profession.

Darrell Dover has. for more than forty years, practiced law that has constituted a living testamenr of service and excellence.

His contributions to his profession and the Bar Association have been in many areas and have proven his willingness to unselfishly devore his time and talents to the betterment of the legal profession.

Darrell is a senior parmer with the firm of Dover Dixon Horne in Little Rock. His specialty field of practice is in the area of Real Estate, Finance. Banking Law, Corporate Law and CommerciaJ Law. He is a member of the Arkansas Bar Association, a Fellow and Sustaining Fellow of the Arkansas Bar Foundation, a Fellow of the American College of Real Estate Lawyers and of the American College of Mortgage Attorneys.

He has been of invaluable service to the Arkansas Bar Association and Arkansas Bar Foundation in recent years, reviewing aU records pertaining to the joint use and various leases of the Arkansas Bar Centet, providing a summary of these complex documents for use by both organizations' leadership.

practice of law in Pine Bluff. one that lasted for rwenry-five years and earned him the distinction of being one of the three most active Arkansas lawyers in the school desegregation drive of the 1950s and 1960s. He served as a member and then Chair of the Arkansas Advisory Committee [Q rhe Unired States Civil Rights Commission. In 1974, he was elected Ptesident of the Jefferson County Bar Association. Governor Rockefeller appointed Judge Howard to the Arkansas Stare Claims Commission.

His first experience on the bench came in 1976. when Governor Pryor appointed Howard ro serve as a special associare justjce on the Arkansas Supreme Court. A year later. he was appointed as an Associate Justice of the Arkansas Supreme Court to fiU an unexpired term. Governor Clinton appointed Judge Howard an associate judge of the newly created Arkansas Court of Appeals. judge Howard was the first African-American to serve in these positions. Then, in 1980. pursuant to a nomination from President Carter, Judge Howard became a federal district court judge, the first African-American district court judge in the State of Arkansas.

Judge Howard is the recipient of many awards and honors. including the 1984 Outstanding Trial judge award from ATLA and the Distinguished Jurist Award from the National Bar Association. The W. Harold Flowers Law Society of the State of Arkansas established a Distinguished Jurist Award in honor of judge Howard. _

Arkansas VersusLaw Free online legal

JUDGE GEORGE HOWARD, JR. SPECIAL AWARD OF MERlT FOR DISTINGUISHED SERVICE IN THE PURSUIT OF JUSTICE

research

www.arkbar.com

In 1954, George Howard became the fourth African-American student to graduate from the University of Arkansas School of Law. Judge Howard emered the private Vol. 38 No. YSumrner 2003

TI,e Arkansas Lawyer

39

In

MCll1oriJIl1

W. KIRBY LOCKHART

W. f(jrby Lockharr, 48, of Little Rock passed away April \0 in Lirtle Rock.

He was an anomey with the Lirde Rock

law firm of Lincoln & Lockhart.

past president of the White County Bar

Lookadoo

served

on

irs

Auditing

Association.

Committee, Jurisprudence and Law Reform

Farmer was a veteran of World War II as

Committee, and Pre-L1W Advisors Comm-

well as the Korean and Vietnam Wars, retir-

ittee numerous times. He was also a FelJow

ing with the rank of Lt. Colonel.

of rhe Arkansas Bar Foundation.

He was

He was preceded in death by his wife of

also a member of the First Presbyterian

A graduate of Princeton University. he

Church of Searcy, the Fon SCOtt and Searcy

attended the Woodrow Wilson School of

Masonic Lodges, a 33rd Degree Scottish

International Affairs and played quaHerback

Rite Mason and a Shriner. The International

Bulice of Pangburn. Ark., and Lizabeth

for the Princeton Tigers. Later he attended

order of DeMolay awarded him its highest

Lookadoo of Hor Springs; three grandchil-

SMU Law School and the University of

honor, the Legion of Honor.

dren and his beloved dog, B.B.

46 years, Valeria Collins Lookadoo.

He is survived by

tWO

daughters. Laurie

Arkansas School of Law. While a member of rhe Arkansas Bar Association, Lockhart served repeatedly on

JUDGE PHILIP B. PURIFOY

its Intellectual Property Commi([ce, State and Federal Securities Committee and the Lawyers for Literacy Committee. He was also

a

FeJlow

of the

Arkansas

Recired Circuir COutC Judge Philip B.

Bar

Purifoy, 64, of Texarkana, Ark., passed away May 7.

Foundation.

Lockhart served as legal counsel for the

A native of Texarkana, Purifoy received a

Arkansas Trucking Association, taught at the

bachelor's degree from the University of

University of Arkansas at Lirtle Rock School

Arkansas and his law degree from the

of Law and coached peewee football.

University of Mississippi. He was a member

He is survived by his daughcer, Audrey

of the Kappa Sigma frarernity.

Elizabeth; his wife, Robin Lipron Lockharr

He practiced law in both Arkansas and

of Little Rock; his mother, Carla Lockhart of Fan Smith; and three sisters.

Mississippi

JUDGEJ. HUGH LOOKADOO,Jr.

before serving as Juvenile

Referee for Miller County and Municipal Judge for Texarkana, Ark. He was elected

MARION LEE "JACK" FARMER

Retired Circuit Courr Judge J. Hugh

Circuit Cou" Judge for the 8th Judicial

Lookadoo, 77, died April 3 at his home in

Circuit in J 982. He served in this position

Arkadelphia.

until his retirement last year.

A native of Clark County, he attended

Purifoy was a member of me Arkansas,

Marion Lee "Jack" Farmer of Searcy

the University of Arkansas and then gradu-

Southwest Arkansas and Texarkana Bar

passed away March 19 in his home. He was

ated with a law degree from the University

Associations.

82.

of Arkansas at Little Rock School of Law.

He was also a member of the Southwest

Afterward he joined his father in his law

Arkansas Mental Health Board, and he served

practice.

as

Born in Fort Scott, Kansas, Farmer went on

to

receive a bachelor's degree in

chairman

of

the

Arkansas

State

Meteorology from UCLA, an MBA from

Lookadoo also served two terms in the

Department of Youth Services Board. He was

George Washingron University and a JD

Arkansas House of Representatives and one

a past presidem of the Four Stares Fair

from the University of Arkansas School of

term in the state Senate. After his service in

Association, and he was a member of the First

Law.

the Senate, he ran for Clark County

Unired Methodist Church in Texarkana, Ark.

Municipal judge. He served in this position

He is survived by his wife of 42 years, Jon

He practiced law in Searcy for 25 years before his retirement.

for three consecutive terms.

He was a member of the Arkansas and American Bar Associations, and he was a 40 TIle Arkansas Lawyer

www.arkbar.com

A

member

Association

for

of

rhe

more

Purifoy; a daughrer, LeAnne Wrighr of Arkansas

than

50

Bar years,

Texarkana; a son, Phil Purifoy; and three

grandchildren.

Is your contact information correct?

Go to www.arkbar.com.c1ick on Member Directory and type your supreme court number and password. Type your name in the search field to see if your contact information is correct.

C

J Bar Arkansas Association

rkansaslindala~r

I ClE I Member Directory I Join I Contact u.

Thoma. A. Daily Address: PO Box 1446 City: Fort Smith

ZIP: 12902.1446 Phone: 419.182-ll361 Fax: 419.182-li160 eMail:

ST: AR

President's Report from page 3 Arkansas Bar Association and recognize that we are seiAess protectors of the rule of law, good law, that is.

I have saved our biggest challenge for last. It is no secret that the Arkansas Bar Center, completed in 1973. has reached a crossroads. That building belongs to our sister organization. the Arkansas Bar Faun· dation. The Association leases irs office space from the Foundation. The lease provided for fair market rental for the space which rhe Association occupies, bur that rcmal was established many years ago. The University of Arkansas, which has leased the building's north tower since its completion, and currently pays 100% of the cmire building's utility and securiry expenses, has no more need to do so. That arrangemem

lasts only through this November. The Foundation and Association are acrively exploring alternatives. At this point no option is off the rable.

Arkansas Bar Cemer. I often I love pause in its memorial area where my own father and grandfather are honored. I can nor, however, dose my mind to the possibility that we may need to move on. At this paine we JUSt do not know. What we do know is that any office space, within or without our Bar Center, will cost significandy more than we are accusromed.

Here is the bo[[om line. Arkansas Versus Law is nor free to me Association, bur it is an incredible bargain for all of us.

OUf expanded legislative advocacy is more expensive than its less effective alternative, bur we righdy rejected that aJrernarive. We have to provide for the cost of the Association's office space in coday's markCL In other words, we must have additional revenue. We will look for that revenue everywhere it might be found. At the same time we will tighten our belts in those rare areas where there might be another notch

me

The Arkansas Bar Foundation acknowledges with gratefltl appreciation the receipt of the fOllowing memorial, honorarium and scholarship contributions received during the period March 21,2003 through June 30. 2003 IN MEMORY OF EDGAR BETHELL Jack C. Deacon IN MEMORY OF MRS. HERVEY CHAMBERS Judge William R. Wilson and Cathi Compton

IN MEMORY OF FERN MURRAY CIAYCOMB Sandra Cherry Daily & Woods. PLLC Judith Gray Don Hollingsworth Mr. and Mrs. Kirby Mouser

Mary Ross Thomas Fred S. Ursery IN MEMORY OF EDWARD B. DILLION, JR. Judith Gray

IN MEMORY OF CHARLES ELLIS Walls Trimble IN MEMORY OF OSCAR FENDLER

IN MEMORY OF BUCK GOODSON Judge William R. Wilson and Cathi Compton

IN MEMORY OF ALBEIIT GRAVES. SR. McKenzie, McRae, Vasser & Barber IN MEMORY OF JIM KING

Justice and Mrs. Robert Dudley IN MEMORY OF ERNEST LAWRENCE Justice and Mrs. Robert Dudley

above the benchmark of 5.000 and then

IN MEMORY OF KIRBY LOCKHART Charles D. Roscopf

www.arkbar.com

IN MEMORY OF ROBERT L. ROBINSON, JR. Justice and Mrs. Robert Dudley

IN MEMORY OF JUDGE HENRY WOODS Jim Powell

SCHOLARSHIPS Wilson & Associates. PLLC

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

Justice and Mrs. Robert Dudley

One likely source of new revenue is addidonal members. We have good reason to project that Arkansas VerslisLaw wiU help us grow the Association membership

42 TI,e Arkansas lawyer

IN MEMORY OF JUDGE PHILIP PURIFOY Judge William R. Wilson and Cathi Compton

Don Hollingsworth

(there are few of those).

retain those members.

Ultimately, though, we will almost cer· tainly propose the first dues increase in ten years. I am confident that you will support your leadership as we thus strive to secure the futute of our Arkansas Bar Association.•

IN MEMORY OF JAMES WALLACE GITCHEL Judith Gray

IN MEMORY OF MARCIA McIVOR Judith Gray

The Arkansas Bar Foundation receives contributions in honor of individuals on a regular basis. To make a donation, the donor makes the check payable to the Arkansas Bar Foundation and notes on the memo line or cover letter the details of the honorarium ("in honor of _ aJong with the address for the honoree). In turn, the Foundation will acknowledge receipt. A letter will be sent to the honoree advising him or her of the contribution and who gave the donation in his or her honor. These contributions co the Arkansas Bar Foundation are tax deductible.

CONTRIBUTIONS MAY BE MAJLEDTO: ARKANSAS BAR FOUNDATION, 400 WEST MARKHAM Un-LE ROCK, ARKANSAS 72201

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44

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Ir sar

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One day Debbie suggested that we needed

ro ger the boat working again. Ir [limed out ro be in fairly good shape, so we fixed it tip.

It has now become a constant projecr. I may have the mosr gadget-equipped johnboar in Arkansas. Guides at the rrour docks are openly envious."

"My grandfather and father were both fly-fishermen. Of course, my grandfather lived in a rime before aU the dams and lakes were builr, so he was a srream fisherman.

Daddy was a bir of a paradox. On the one hand he resemed the lakes because they inundated the creeks. Srill, he loved ro flyfish for trour on rhe White River. There were years when he and I spem most of our weekends in Correr. I was prerty clumsy wirh my fly rod then, bur I have raken ir up again and really enjoy ir. Meanwhile, Debbie catches all rhe fish we need to eaL".

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