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Phone: (SOl) 37';-4606 m: (501) 375-4901 J-Iomcp;lgc: www.arkb ..... com E-Mail:

The Arkansas

Editor Anna Hublnrd


l:.uonive Director

Oon IloUingswonh Auoci;uc Exec:Uli\'c Di reclOr Karen K. IlulchillS

Gnphic Design LandiJ


Vol. 42. No. I

fJ)ITORIAL BOARD Philip E.. Kapl:m. Chlllir Judge: Wiley A. BnnlOll, Jr. Michelle H . Cauley

Mihon Fine, II William D. Haught

Mary lklh Mmhews Stuan J~ Millcr Gordon S. R.uhc:r, Jr. Chustopher Tr.n>ls D:l.vid H . Willi ... ms

lht'A M. Winebnd

OFFICERS Prcsidcm Juna D. Spron

features 10 The Development of Discount Rates for Use in Business Valuations and Commercial Damages litigation Richard L. Schwam and William A. Waddell, k

Board of Governors Chair CindyTh~r

])roidcnt-E1ecl Richard L Ramuy

14 Arkansas Model Jury Instructions - Civil: Bringing Simplicity, Brevity and Impartiality to Jury Instructions in a Commercial Case

Immtdi:au: I'ul l'm;idcm A. Glenn Vasser 5cc~r.ary.Treasurcr William A. Manin


J. Leon Jo hnson

Peter G. Kumpe

Young La~r& Seclion Chair Michelle II. Cauley

BOARD OF GOVERNORS Thom;u M. Carptmc:r

NikiT. Cung jim P;lt Flowers llivid M. FuqlUl

Ch;uks L Harwell Amhony A. llilliard Colene D. Honol"llhlc: William O. jama jim LJulim Scan T. Keith Hmy A. light Chalk S. MilC,:he11 John R. lleel Donrl.ll C. Peuu~ Danny M, JUsmusscn Bnan H , RlUdifT

Frank B. Sew:.tll

20 Sea bees Service in the Second World War A Judge in the Making Judge Bill Wilson and Beth Deere

18 Practice Tips: Protecting Your Client's Right to a Patent: Don't Wait Too Long to File J. Charles Dougherty

Todd M, Turner

john T. Vines Eddie H. Walker,jr. Tom D. WOlTllu;:k

LIAISON MEMBERS Judge John !-iolt)' Don Hollingwrorth Randolph C.jadoon Phylli$ M. Jack MeNull)" Judgf: Ri« VanAl.UlhlI Carolyn B. Witherspoon

1W Ari",_ U",," (USPS s,46.{)40) IS pub/iWod qlWtnly by tbe ArIwtsa. !br N.soQaIlOll. l'f:nodic::aIs fXI'UF pa.d at Uttk Rock. ~

POSTMAS'TER: tmd :addrna dwIp 10 1M An6.r_ 2224 ConOlKblr; Lane. Lltlr; Rodc.. Arbnw 72202. SubKnpuon price 10 non·mo:mbas of It..: Arbnw &r Associ;&UOll $35.00 pcr ynr. Any opinion a~ hen:;n U Ih:u of the author, .nd not II«UQroly Ih'l\ or the Arlwlw R;.r MsoWtion or 'fb" t...ouyw, Conttibuuo", 10 TIw t....ouyw:on: ...doomo: and should bf Knt 10, Tbr A.r*.r......., LA.".., 2224 CoC1ondak laM. I.IItIr; Rtd. Arlwu:u 72202. All 'nqu."1eI: rtpnii"l adwrt",n, ohouId Iw: Ioml 10 EdiID<, 1M A,"",....., t..."'1"' at the a!xm:: ....ddrea. Copynpll 2007, Arlantas Ib.r Auocoation. All ushu ~.



24 2006-2007 Arkansas Bar Association Board of Governors

28 Arkansas Supreme Court Historical Society Noteworthy Arkansas Jurists: From the Trial Bench Logan Scott Stafford


Contents Continued on Page 2

The Arkansas

awer Vol. 42. NO. 1

in this issue Thank You to the 2006 Volunteer CLE Speakers and Program Planners


CLE Calendar


Book Review: Arkansas Scholar Recounts Central High Crisis Vic Fleming


Lawyer Disciplinary Actions


Judicial Advisory Opinions


In Memoriam


Arkansas Bar Foundation Memorials and Honoraria


Classified Advertising


columns President's Report James D. Sprott


Young Lawyers Section Report Michelle H. Cauley


'If' Arkansas Bar Association 2224 Coltond~c laue unit' Rock, Arkansas 72202

HOUSE OF DELEGATES Delegate District I-SE: Rober! F. Thompson. III Delegate District 2-5E: JerriI:' G. Higginbottom Delegate District 3-SE: Dennis lapler. Barbara A. Halsey, Mark Mayfield Delegate District 4-SE: Kathie A. Kimbrcll Delegate District 5-SE: Kent) . Rubens Delegate District 6-SE: Marshall Wright Delegate District 7-SE: Buck Gibson Delegate District 8-SE: lim A. Btair Delegate District 9-SE: Brian Miller Delegate District IO-SE: Catheri ne Lewis, Anthony A. Hi lliard Delegate District II-SE : Phillip C. Green Delegate District 12-SE: James A. Hamilron Delegate District Il-SE: M.anhew Shepherd. James McMenis Delegate District 14-SE: M.atthew Kimmel. Amy Freedman Delegate District 15-SE: Bryan T. McKinney. Tom Curry Delegate District 16-SE: John T. Vines. Jon.athan D. Jones Delegate District 17 -SE: James Ralph Jackson Delegate District I-NW: He.nher Lipke. Li~ L Kelley, Jason B. Kdlr:y. Stephen Geigle Delegate District 2-NW: Brock Showalter. Buddy hadick . Matthew R. Durrett. Chris R. Rttd . David J. Whitaker. Charles Harwdl. Tim Tuvin, J:l5On B. Duffy. E1iubeth Duffy, P:ml D. Reynolds Delegate District l-NW: F.urah L Adder, Stephen Smith. James O. Cox. Amy Click-Harada. Kimberly Frasier. Rita Howard Delegate District 4 -NW: Patrick McDanid Delegate District 5-NW: S(~e B. Davis Delegate District 6-NW: Roy Beth Kdlr:y. John C. Riedel De legate District 7-NW: Larry Spradlin, Stc:phan Hawks Delegate District 8-NW: Jerry Patterson Delegate District I-e: Guslcy Edwards, David W. Sterling, Brenda N. Srallings, Mark H . Allison. Patrick D. Wi lson. Valerie Kelly, Gregory L Crow, Lacy Kennedy, C. Tad Bohannon. Jerry Larkowski, Vandiver. Mark McCarty. Jay Taylor, Beth Deere, Leon Johnson. RelxcCl. Denison, Michelle Cauley, David Fuqua. David Glover, Jay Shue. E1izabc:lh Smith. Brad L Hendricks, Joel M. DiPippa, R;mdaJl S. Bueter, Gill A. Rogers. Mark Hodge, Brerr WalSQn . P.atrick Spivey. Danyelle W.alker Law Stude nt Representatives: Dan Oberne, University of Arkansas School of law; Allison Rantisi and Kim Overstreet. UALR William H . Bowen School of Law

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by James D. Sprott

President's Report

Sudden Emergencies

AJI pilots prepare for sudden emergencies. those momems when the engine Sputrers or goes silent, when a vacuum pump fails and insTrum ents run awry, when the o minous darkness of weather closes in and our physical senses lead astray. We practice these emerge ncies so an encounter with reality is no shock. We lea rn CO say "Mayday" three tim es if a landing is imminene, to rune the transponder to 7700 and our communications radio [0 121 .5. We learn to focus on just fl ying the airplane, and nO( so much on [he symptom of the problem. But the further di sram our times of practice and the more hours we spend in perfect fl yin g, engines purring, instruments co nsistently functioning. and the weather dear, rhe less prepared we become. For an emergency in all airplane is like a thief in the night. lurlcing unseen [0 appear at the least likely of times: while we sleep, taking flight for granted . Then, an emergency is truly a sudden one. I find life no different. We si mpl y take the co ntinuation of the present circumstances for granted. O Uf Associatio n is runnin g quite smoothl y: membership is up, we've moved into beautiful new quarters. two task forces have co mpleted their extensive wo rk and reports to our Supreme Court are ready for adoption, we are prepared for the Legislative Session, and our C lE schedules are brimming with excellence. T hin gs were simply wonderful recenrly when our Executive Di recto r, Don HoU ingswo rth , to ld me of his decision to retire at the end of Jun e 2007, an unwel come sudden eme rgency, indeed. little planning had been don e for the

... the further distant our times of practice and the more hours we spend in perfect flying, engines purring, instruments consistently functioning, and the weather clear, the less prepared we become. challenge of our chief officer's departure; there are no succession plans fo r rhis most important Staff position. And Don's ability to encourage and lead our 4.900 voluntary members has made us co mfortable with [he present circumstances. He has a genuine talent for details and dealing wirh eager leaders, each with substa ntial energy and selfco nfidence. His tenure has been marked wi th tremendous growth and change for the Associa tion, all of which he has helped us achieve and endure with grace and cooperarion. We will miss him. We have already responded ro the chal lenge. A nine member Search Com mittee led by Jim Juli an has bee n selected. All of the nin e readily ag reed to se rve. The Committee has already mer and adopted a time table for advertis ing the vacancy and interviewin g selected ca ndidates. The opportuni ty will be announced nationally so rhe very bes t for [his position ca n be co nsidered, although the group is cognizant of

the value of Arkansas ex perience 111 this position. We can have great co nfidence in this group's ab ilities and dedicatio n and, rh erefore, in rhe re<;ulting recomm endation to be made to the Board of Gove rnors in April. And so, there is no "Mayday" here; we have met this emerge ncy and are prepared to continue the fli ght. My fa mily has also faced a sudden emergency lately. We were cal mly asleep on October 19 when our son, Daniel, unexpectedly passed away in his sleep. With the support of our faith. our family and friends, we have faced this awakening reality, and have found reli ving memories of a delightful yo ung man is a source of comfort, and provides meanin g to his difficult life. Daniel was born under harsh circumstances, sufferi ng a skull fractu re at birth, an early symprom of a rare co ndition that affected him for [he remainder of his rwenty-nin e years. By his ow n cou nt, he survived . "30 plus" surgeries, and was most often confin ed [0 very short walks or his Quickie wheel chair. He never let his physical co ndi tion defeat him, rather using his wit to endea r him to famil y and friends forever. He will be remembered for his persistence, endurance, co urage and his ability to love life regardless of his ci rcu mstances. His death was certainly a sudden emergency to his fam ily and friends, but our flight, too, will be recovered and resto red , although our preparation and practi ce had been dull ed by complacency and years of engines pUTring, instruments working and dear weather prevai li ng. We encourage each of you ro guard againsr such co mplacency. Hu g your loved ones often, and long .â&#x20AC;˘

Vol. 42 No. l!Winler 2007

11,e Arkansas Lawyer


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Young Lawyers Section Report

by Michelle Cauley

Taking Time "How do you manage it all? How do you find the tim e?"

com mit to another volunteer project, I'm

wouldn't be giving up any more of my ti me

go ing to let yo u in on a little secret. I recent-

than I already was at the present-and I

I get asked this a lor. And. yes. I have a lot

ly discovered a way to help balance so me of

cou ld live with me current status quo, Then,

go ing on, buc so do most young la\l/yers. We

the more chaotic momems of my life. that

the fi naJ question. how wo uld this affect me

have fam ilies and careers and we stri ve to

may work for

in 10 years? I thought a little harder about


as well . It's call ed 10- 10-

find the balance in our lives every day. On

10. This stands for a ser ies of three questions

this one, 1r was possible that in 10 yea rs I

top of tryi ng to juggle what we already have,

yo u ask yo urself anyt ime you have a situa-

would no longer remembe r this committee

there are those annoying peo ple like me who

tion where th ere appears to be no reaso nable

appointment or the tim e it rook away from

are co nsrandy asking people like you ro do

so lu tion in sight. Ask yourself what are the

my billable hours, It was also possible that

mo rc. "Joi n YLS ... Join Mock Tri al.. .do

co nseq uences of my acdo lls in to minutes?

by participating in this committee I may

this... do [haL.." Enough al ready-right?

In 10 months? And , in 10 years? The clarity

have had a pan in influencing a child to go

Wro ng, I'm not going

the answers to these ques tions will give you

to college or law schoo l. I may have partici-

in almost any situat ion may surprise yo u.

pated in educating adults about the legal


Ict you off chat

easy. In my last column I wrote about the

For example, earlier in the year I was

system, and helped so meo ne to understand

uniqu e opporruniry we as lawye rs have ro

asked by our Association Pres idem to accept

th eir rights and the rools availab le to them

make a difference in o th er peo ple's lives. In

an appointmem to a new committee of the

to defend their rights. The possibilities as to

response to that article. I received seve ral e-

Association, the Law Related Educa tion

how many peop le I may indirectly affect

mails and phone call s from people in various

Committee. At the time, I was juggling a lor

over the next 10 yea rs was endless. When I

parts of the state waming ro get in volved in

of Associatio n activiti es, and it was really

weighed this with che o nl y real negative I

our service projects. As a result, we were able

raking a toll on my work hours, billable

discovered (the immediate anxiety over

to gather new vo lunteers for our Mock Trial

hours, and personaJ hours. All I could think

another commitment) my choi ce was easy.

program, our Law Day program, and our

was "Geez!!! H ow can I poss ibly fir in anoth -

The point in al1 thi s is, we make time for

Statute of Limitations H andbook. So. you

er co mminee?" At the same tim e, th e pur-

what is important to us, My discovery of 10-

must bear with me now that I see my beg-

pose of [his comm ittee was so honorable

10- 10 has helped me to sort through what is

gin g and pleading has wo rked so well!

and inspiring it was hard to pass up [he

impo rtanr and what is

There are a lot of service projects on our

opportu nity


get involved ,


so important in

th e big scheme of thin gs, Billable hours and

horizon that need more volunteers. The

I asked m yself what rh e consequences of

wo rk is importanr- no dOllht, hllr affecti ng

Mock TriaJ Committee is always in need of

accepting this appo imment would be in the

li ves and bettering our co mmunity is aJso

presiding judges and scoring judges for their

nex t 10 minutes. I figured in the next 10

important. Finding rh e baJance betwee n

regio naJ and state co mpetition. This takes

minutes I would probably expe rien ce a little

these two forces and parceling our time for

only a few hours out of your day. and the

more anxiety over taking on another com-

yourself and famil y ca n so metimes feel as

students remember these ex periences for

l11irm enr, bur otherwise, th ere wou ld be no

impossible as balancing Jel l-O on a tooth-

yea rs. Some of our other projects. such as

immediace faJl-our. I th en asked myself how

pick. But it can be don e. wh en yo u know yo ur priorities and keep yo ur focus.

Law Day. may require a little more time and

I wo uld feel in th e nex t 10 months if 1

preparation. bur. again, the impact your

accepted thi s appointment? When I thought

If you are inrerested in learning more

prese nce makes on th ese impress ionable

about it, I reaJized that in 10 months I

you ng minds is in valu able.

would be almost finished with my year as

about the YLS service projects, please contact me at MCauley@mwsgw,com. _

If all this so und s good . but you ate still

C hair of [he Yl..S and things wo uld be slow-

teeterin g on th e fence and not sure you ca n

ing down. In all likelihood, by thi s time I Vol. 42 No. I/ Winter 2007

The Arkansas Lawyer


The Development of Discount Rates for use in Business Valuations & Commercial Damages Litigation by Richard L. Schwartz, CPAI ABV, ASA, MCBA, CFE William A. Waddell, Jr.


INTRODUCfION Attorneys who try business cases have little guidance on developing and arguing disco unt rates. \Vhile discount rares are often con-

Marker Risk

or subjective


• BuY" prodUCt '" seMce ~

rested issues in a v3riery of cases, it is difficult [0 find Arkan sas case law o r other published legal authority to support arguments regard-

Financial Risk

opi ng a discount rare for rhe purpose of calcuJaring lost busin ess pro fits or for arriving at the value of a business usi ng the disCOUIIlcd cas h flow method. For example. neither the Arkansas Model Jury Instructions - C ivil nor th e leading treatise on Arkansas damages deals specifically with the issue o f developing a discount rate for lost


Management Risk

Product Risk


INSTRUCfIONS 2220 (5 th cd. 2005); HOWARD BRILL, ARKANSAS LAw OF DAMAGES § 6- 1 (5[h cd. 2004). There are rrearises thar dea l with th ese iss ues. See, e.g., ROBERT L. D UNN, RECOVERY OF DAMAGES FOR loST PROFITS Lawpress Co rp. (6th cd. 2005); SHANNON I~ PRATr, BUS INESS VALUATION : DISCaUNTS AND PREMI UMS (2001 ); SHANNON P. PRAlT, VALUING A BUSINESS (4 [h cd., McG raw- Hili, 2000). However, as helpful as rrea rises like these are ro evaluate the fin er poincs of djsco unc rates and their co mpone ncs (as well as other as peC[5 of business valuation and damages), atrorneys and judges base their arguments on case law. This article prcselHs the developme nt of di~co ulll ralt:s in an undt:rst:lIldable and useab le formar for the purpose of assisting courtS and practitioners as rhey further develop the law in this area .

Company Sales Risk

Busi ness environment risk Systematic risk

" Base" rate

DEVELOPING A DISCOUNT RATE Before a discount rate is developed or evaluared, ir musr firsr be unders rood what a discount rare measures. By "disco ulH rare," rhe finan ciaJ community means a.11 anl1uaJly compounded rare ar which each in crem enr of expecred income is discounted back to its present valu e. l Said another way, it is a rare used ro conve rr a series of furure cash flows ro a sin gle prese nr value. Thi s rare is a forward - looking rate based upon th e esrimared returns and is often used interchangeab ly with "cost of capital" and "required rate of rerum. " The concepr of using a discoul1l rate to convert ex pecred future returns to presem vaJue may be stated as: "Value today always equals future cash Aow di sco ulHcd at the opportunity COS t of capitaL "2 Quite simply, a disco unr rate m easures expected and perceived

ri sk of return. Energy Capital Corp. v. United States, 302 F,3d 13 14, 1333 (D.C. C ir. 2002). Using a built-up approach ro developing a

-Shifting buyer preference: -I lliquidity

• Unfavorable contraaual obligations

ing discOllIH rates. This is particularly [rue in rhe context of devel-

business profits or business valuation.

- Barriers to market emrr - Market size or share co nstraints -Strength of competition


• Excessive debt • Depth of management talent -Key employee dependence - Management's past experience with product Ot service - Key supplier dependence -Obsolescence - Reliance on specific patents and licenses of productive capacity -Commercial impracticality of proouClion -Key CUStomer dependence - Lack of produa djversificarion -Lack of geographic saJes d iversification -Ceneral economic co nditio ns -Government regulation -Ceneral equity risk premium - Scca coeffi cient for the subject industry to modify the ge neral equi ty risk premium -Company size premium - u .S. Treasury coupon bond, no re or bill yield

TABLE II - COM PONENTS OF DISCOUNT RATE Components Risk-free Rate 4 (Usually U.S. Treasuries are source) + Equity Risk Premium4

Estimate 4.8


+ Industry Risk Premium 4


+ Size Pre mium 3


+ Co mpany-Specific Risk Premium 5


discounr rate requires consideration of th e following: (Profcssio na1 Judgment)




Richard L. Schwam, C PNABV, ASA, MCBA, CFE is the founder of Schwartz & Associates C PA's.

A great deal of time could be spent in discussing the intricacies of the foregoing co nsidera tions. However, that is beyond the scope of this article, which is simply [Q ident ify the compon ents of a disco um rate and then to discuss thei r relative application to a different series of engagements, i.e.: • Busi ness Valuation • Commercial Damage Litigation • Personal Injury Litigation Why should a person care about the magni tude of the discount rate used in the above engagements? Quite simply, the higher the d iscount rate, the lowe r the value of the business or loss cal culations. Conversely, the lower the disco unt rate, the higher the value of the bwiness or loss calculations. The impact of the disco unt rate can vary in each type of engagement as discussed below.

ization rate is the discount rate less longterm sustai nable growth. The discounted future income method involves projecting the future inco me of the su bject company and then discounting that projected income to present value. However, when employing either method, one must develop a discount rate. The development of the discount rare under either method would be similar to the approaches noted in Table II. Both of these methods wo uld produce a valuation of

William A. Waddell, Jr,. is a parmer with the law firm of Friday, Eldredge & Clark.


Projcclion scenario: $8,000,000 nct flow to equity in Yar I, 5 pcra:nt perpetual annual grO'Nth nllc from Year I forward, and a 25 percCnt pracnt VllIluc discount ratc. Dis~ON"lt!d EcO"Dmi~ I,,~om ...


Projection Pe..iod:

There are three methods used in traditional business valuation:

Indicated valuc of business cmity· • $8 000 QQQ


Method Ycar3

Y=2 18400 QQQ


(I t o.25)2

( I to.25»)

Tcnninal Valuc $8 820 QQQ ( J 05) ~

(I to.25)3

• 18 000000

• Asset Method • Income Method






sa IIZO QQQ (J 05l


( 1.25)3

• Marker Merhod

• 56400 QQQ





105 000


The focus of this article is the Income Method. Two approaches to consider are: ( 1) the capitalization of income method, and (2) the di sco unted future income method. These methods are recognized in authoritative treatises in the area of business valuation and damage calculation, such as those cited above in th e introduction. In the first app roach, a capitalization rate is developed and then applied to the historical income of th e subj ect company. A ca pital-

Indicated valuc ofbusineu cntity

• $6400 QQQ • $40000 QQQ




Grpit.JiuJ Ec.".mit' I" ... ", ... Mtlhod


Projection period:

SII 000000

Economic incomc 10 equity Pracnt VllIluc discount rolllC minus expected long-tcrm growth rat c


UQ QQ()ooo

Indicated valuc ofbusineu cntity

Vol. 42 No. l!Winler 2007

n,e Arkansas lawyer


If the discount rate in the preceding model were changed from 25% to 20%, rhe val ue would also cha nge, because, as srared previously, the lower the di scount rare, the higher rh e value:

TABLE IV - CAPITALIZED ECONOMIC INCOME METHOD USING A 15 % CAPITALIZATION RATE Economic income (cash flow) Divided by: Discount rate 20% minus growth rate 5% (i.e., capitalization rare)

Valuation of entity

$ 8,000,000



The illustration in Table IV results in an increase in value of $ I 3,333,000 simply by using a discount rare of20%, a differen ce of jusr fi ve percentage points. Thus, small changes in the disco unt rare can cause large differences in the ove rall value, making the development and analysis of the rate a very imporrant part of a case.


ru Professo r Brill notes, rhe co nsiderations regarding the di scount rare in perso nal injury cases are usually limited, and co nsiderab le disc retion is given to a jury ro derermine the appropriare di scount rare. Wh il e expert testimony is not required to esta blish the appropriate discount rate in such cases, experts are often presenred, and th eir tesri mony is usually given grea t weight by the JUry. Experts on the discount rate applicab le in perso nal injury cases so met im es provide similar testimony rega rding rh e discount rate for lost busi ness profits or the value of a busi ness. H owever, th e methodology for developing the appropriate di scount rate in personal injury cases and business cases is markedl y different. An attorney who is unaware of th ese differences is nO[ likely to effecti vely present arguments agai nst the expe rt who uses the perso naJ injury methodology in a business case. For examp le, the methodol ogy to d evelop a discounr rate in a personal injury case docs not consider key co mponents of business risk. As illusrrated 12

TIle Arkans<Js lm'Ycr


in Table 2, the discount rate in a business case will co nsider issues such as the size of a business and the risks associated with its specific industry, neither of which is a consid eration in the developmenr of discounr rates in perso nal injury cases. Cf Olson v. Niemans, Ltd., 579 N.W2d 299 (Iowa 1998). Thus, the issues discussed regarding business cases are significam to the prope r development of a discoum rare for use in those cases. As Professor Brill notes in section 6- 1 of his treatise, a plaintiff in a personal injury case will argue for a low disco unt rate and a defendant wi ll attempt to convin ce the faCtfind er why a hi gher discount rate is more appropriate. H oward Brill, ARKANSAS LAw OF DAMAGES § 6- I (5 th ed. 2004). The reaso n for these competing srraregies is obv ious: The lower th e discotlm rate, the higher the award of future earnings. T hese sa me co mpeting strategies are also present in the business case. However, wh ile argument has its place, atro rn eys in business cases ofren find themselves on th e plaintiff's side in one case and then o n the defendant's side in another case. Indeed , it is no r uncomm on in a busi ness case for there to be claims, co unterclaims, cross-clai ms, an d third-parry clai ms in the sam e case. That rype of alignment of panies and claims makes it all th e more important ro establish the basic co nsiderations for the d evelop ment of discount rates in busin ess cases. The proper use of these considerarions to develo p an appropriate discoum rate will resu lt in fair and just damage awards. In addi rion, in th e event a damage award appears to be the result of passion o r prej udi ce, th e considerations in th is article can ass ist the courts in reviewing stich awards against o bj ective crireria related ro the discount rate.


Fair market valu e is a va lu e wh ich assWlles what a hypoth etical wi llin g buyer would pay a hypothetical wi lling seller. Rev. RuI. 59-60. 1959- 1 CB. 237. In contrast. fair value "is d ete rmined by ascena inin g all assets and li abilities of th e busin ess and the intrinsic value of its stock rather than merely appra isi ng its market val ue." Crismon v. Crismon, 72 Ark. App. 116, 12 1- 122, 34 S.W.3d 763, 767 (2000) (G riffen , j. , disse nting) (citing American Gen. Corp. v. Camp, 190 A. 225,228 (Md. 1937». The distinctions between fa ir value and fair market val ue are imponant in business valuation cases using the discounted cash flow method because, as discussed below, th e co nsiderations for the d evelo pment of a disco unt rate may be more focused to specific narrow iss ues if fair val ue is the sta nd:nd . See SHANNON P. PRATr, VALUING A BUSINESS 32 (McG raw- Hill, 4th ed. 2000). Arkansas cases are undecided o n whether fair market value or fair value is th e appropriate value for usc in business cases. In the case of Crismon v. Crismon, [h e Arkansas Court of Appeals noted that the Arkansas Supreme Cou n "has ex pli citly approved th e use of the 'fair market value' standard for val uing closely held busin esses in a marital property division co ntext. " 72 Ark. App. at I 19, 34 S. W.3d at 765 . The authors are un aware o f any reponed Arkansas case which has d ecid ed char issue in the context of other rypes of cases. Attorneys shoulcl revi ew Arkansas cases and starures for particular rypes of claims to determ ine wheth er the measure of damage requires a d ere rmi Rates co nti ned on page 46

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JOB ANNOUNCEMENT Executive Director The Arkansas Bar Association is seeking a talen ted and experienced person to be its Executive Director. In addition to being responsible for the overall operation of our voluntary association, the Executive Director works closely with the officers, two governing bodies, committees, Association partners, and a variety of law related organizations. The Executive Director must be highly organized, out-gOIng, and a selfstarter. Experience with the legal system or organized bar is important, and applicants with a law license are preferred. Good communications, management, technology and marketing skills are essential. Previolls work with non-ptofit organizations is desirable. Applicants must submit a resume, an Association employment application, salary history and writing sample (not to exceed five pages) to Search Committee at the below address or to Salary depends on experience and qualifications. The employment application is available on What's New (see left side menu bar) at The Association is an equal opportunity employer. The Search Committee requests that applicants submit their materials as soon as possible, but no later than March 1,2007.

2224 Cottondale Lane Li,de Rock, AR 72202

501.375.4606 800.609.5688

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first published in 1965. were an impo rcanr innova ti on in the jury erial process in Arkansas. T hey were the work of an Arkansas Supreme CO lirt Commirree first co nstituted on February 12, 1962. This Arkansas effort was a part of a natio nal reform movement to d evelop patterned instru ctions to simpli fy and clari fy rhe submiss io n of instructio ns to a jury, and to redu ce legal error in the jury trial process. At rh e tim e of thi s pionee rin g wor k in Arkansas, only five states were utilizing pattern instructions although 20 o ther states had comminces sim ilar to the Arkansas committee at work. The first chairman of the Arkansas Supreme Court Committee o n Jury Instructions, Judge Paul WoLfe, wrote in his imroducrion [0 the first edition. C IVIL,


In recent years, the inadequacies of the jury instruction system over the nation compelled attention, and dedicated men in all ranks of the pro fess ion have thrown [he light of puhliciry upon th e consequences. This scrutiny has exposed injusti ces and econom ic waste visited not on ly upon the profess ion and the litigants. but also upon the tax paying pub-


The Arbnsas la\'"Yer

lie. As a resulr we have become aware that it is not only good se nse, bur good business [0 reexamin e th e matter cfj ury instruct ions, and co evalu ate them through critical eyes rather th an in rhe soft light of tradition and accepted fo rm . The ini tial set of ins tructio ns prepared by this pioneer group co ncern ed primarily tort cases and patterned ins[fuctions primarily under Arkansas common law. Their task was monum ental. They met, ge nerally for twO days each mo nth , over a period of approximately three years. The Co mminee was selected from the Bar throughout the stare and reflected not only regional di versity, but also practice diversity. Those lawyers generally represe ntin g plaintiffs were balanced by la\vyers who generally sat on the other side of the courtroom. Among the members of the Co mmittee was Justi ce George Rose Smith , who sa t o n rhe Arkansas Supreme Co un as instructio ns were being drafted. That practi ce:: has now Lt:t:1I abamlow.::u wilh the Coun determining that active participation by a Supreme Court Justice or C oun of Appeals judge in th e drafting may impair the appearance of imparriality if an instruction is challenged in a subsequent appeal , o r inco rrecdy indicate prior approval of an instructio n by the C ourt before it has co n-

sidered the instru ction in the co ntext of acruallitigatio n. The co nfid ence thar rh e Arkansas Supreme Co urt placed in that Co mmittee and its successors is reflecred in a p~r curiam Order entered by the Supreme Co urt o f Arkansas on April 19 , 1965. in anti cipati on of the publication of the first AMI : If Arkan sas Model jury Inst ru ctions (AMI) cO lllains an instruction applicable in a civil case, and the rrial judge determines mat th e jury should be instructed o n the subj ect, the AMI instructio n shall be used unless the trial judge finds that it does not accurately state the law. In that event he will stare his reasons for refus ing the AM I instructions. When AM I does nor contai n an instruction on a subject upon which the trial judge d ete rmin es that rhe jury should be instructed , or when an AMI cannOt be mocfjfied to submi t the iss ue. th e: instruction o n that subj ect should be simple. brief, impartial , and free from argument. T his ord er, of co urse, gives a pres ump tion of author ity ro a published AMI instruction . An instruction as publ.ished may be m odified or chaJlenged, but only with a co mpe-

tene substitute and after making a showing that it does not accurately stare the law. This first AMI Com mittee was remarkably successful. Soon, an AMI vo lum e was in every trial lawyer's briefcase and , upon the publication of the seco nd edition in 1973. the Supreme Co un in expressing its gratitude to the se rvice of the AM I Co mmittee noted , "The decrease in reversals of Ci rcui t Court civil cases because of fa ul ry instru ctions can, of course, be attributed to the use of AMI Instructions as set o ut in the original edition ." Letter, O ctober 17, 1973, at IJI , ARKANSAS MODEL JURY INSTRUCTIONS-CIvIL, (2 nd ed. 1974). The splendid wo rk of this initial co mmittee was noted in th e D edi cation to ARKANSAS MODEL J URY INSTRUCTIONs.-CIVlL, (4 th ed. 1999) when C hairman H. David Blair noted "... the genius, fores ight, and industry of the o ri gi nal committee appo imed by the Arkansas Supreme Co urt that published the first edition in 1965." During th e late 1990 '" there was recogniti on that commercial cases we re increasing and [aking on greater significance in the Arkansas courts. Members of the Supreme Co urt reflected the ineerests of Arkansas lawye rs in urging that th e AM I Committee ex pand irs atteneio n to comm ercial cases. T he Business Law Section of the Arkansas Bar Association created a Jury Instruction Subcommittee and stepped out ahead of the AM I Commi ttee by publishing proposed model instructio ns for cont ract cases and fraud cases. See W illiam A. Waddell, Jr. , er

aI., Proposed Arkansas Model Contract Jury Instructions, 20 U. ARK. LITTLE ROCK L.J. I (1997); C harles D. H arriso n et al. , Proposed ArkansllS M odel Fraud Jury Instructions, 20 U. ARK. LITTLE ROCK L.J. 5 1 ( 1997). The first instructio n o n the tort of dece it o r fraud (AMI 402) appeared in the T hird Edition published in 1989. T he Fourth Editio n, published in 1999, revised the instruction on interference with contractual rel ati onships or busin ess ex pectancy (AMI 403-4 04) to enco mpass th e teaching of the only Supreme Co urt dec isio n that had found an AMI instr uctio n legally infirm. See Mason v. IVai-Mart Stom, Inc.. 333 Ark. 3, 969 S.W.2d 160 (1998). A new chapter was created encompassing the intentional tons (Chapter 4) and defamation (AMI 4074 12). The comm on law torts of libel and slander were subsum ed under this set of model instructions, which addressed in an inn ova tive fashion the First Am endment issues inhering in such claims.

During the late 1990's, there was recognition that commercial cases were increasing and taking on greater significance in the Arkansas courts. The 200 1 Pocket Parr for rhe Fourth edi tion introduced the bulk of the "new" co mmerciall itigation instru ctions. Most of those instruction s we re the co ntract instructions now co ntained in C haprer 24. The organization of those instructions, sequ entially as a case wo uld be presented , faci litates no t only instruction selection, but also case analysis. Of particular utility is the introductio n ro the Co ntract Interpreration inst ructions (AMI 24 12-2424). That introd uctio n provides clear guidance to practition ers and the co urts that an ambi guity reso lva ble by extrin sic fact must be found by the court before interpretation instructions are to be submitted. The Committee also addressed statutory commercial ca uses of action with the publication of this Pocket Pan. The newly published instructions were for civ il claims und er the Arkan sas Trade Sec rets Act (Chapter 26), the Arkansas Securiti es Act (Chapter 27), the Franchi se Practices Act (Chaprer 28), and the Deceptive Trade Practices Act (Chapter 29). Some of the statutory claims were parcicularly challenging to the Co mmittee. Statutory language is nOt always enacted because of its intelligibility. Beca use it is statuto ry, however, the Co mmittee often felt constrained in adapting such lan guage to common usage. The 2002 Pocker Parr inrroduced instru cti ons under Article 2 of the Uniform Co mmercial Code (Chapter 25), and those instructions were expanded with th e publication of rhe 2003 Pocker Part. T hat publica tion also introdu ced compre hensive instructions concerning invasio n of pri vacy (AMI 420-424). In th e last two years th e Co mmittee has continued its dilige nce, and is undertaking a comprehensive review and revision of co mments associa ted with instructions. T hose commems had ofren beco me simply accretion s from a succession of Co mmittee reviews rath er than a cogent explication of the auth oriti es underpinning and co mm eming on the instru ction. Additionally, the Co mminee has initiated a foray into bankin g litigation with the publica tion in the

2007 Edition of a new chapter entided Bank Deposits and Collections (Chaprer 30). The litigation process in Arkansas has been wel l se rved by the 44 years of effort by th e Bench and Bar in the development of pattern instructions. Pattern instru ction s provide the practitio ner and the bench with not on ly language to instruct a jury, but also a desk reference for case analys is. Ju ro rs receive instructions that are coherent and intelligible. The appellate bench is spared appeal and error based upon fau lty instructions. These achi eve ments have been made by a co ntinuing panncrship between the private bar and the courts. Alth ough a sitting Sup reme Co urt Justice no longer selVes o n the AMI Committee, trial judges have consistently been among irs members. The Supreme Court has appoi nted a Justice as a liaiso n betwee n rh e Court a nd th e Committee, and he is availabl e to provide guidan ce and resources. In rece nt yea rs, the liaison Justice for the AMI Committee has bee n the H onorable Donald L. C orbin. In additio n, [he Co urt has made available the resou rces of th e Administrative Office of the Courts. A staff member of that Office, Larry Brady, Esq., has served with the Committee as a deliberating member as well as to provide administrative reso urces. The Supreme Court's laudable determination to ensure that its Committees are Peter Kumpe is a com mercial litigator and partner In Williams & Anderson PLC in Little Rock. He served o n the Arkansas Supreme Co un Committee on Jury Instrucrions-CIVIL from 1999 to 2004 and as C hair man of the Committee from 2000 thro ugh 2004.

Vol. 42 No. IlWinlcr 2007

TIle Arkansas La"Ycr




is proud



John D . Coulter has joined the fi nn . H is primary areas of practice are employment. com mercial litigation. personal injury. and fa mily law. H is new cuntact

information is:

(50 1) 372- 14 14 - telephone (50 I) 372- 1659 - facsimi le jcoulter@jam

leavened with new blood caused COUrt co place term limi ts on its standjng committees. That wo rthwhile endeavor threatened [he loss. howeve r. o f instituti onal memory. Durin g a del iberative setting such as that in which the AM I Co mminee fun cti ons, effi ciency comes when argum ents do n Ot have to be repea ted and d isagree menr resolu tion processes 3rc well unde rstood. When new mem bers are appo inted. inevitably co nve rsatio ns 3rc repeated and imcrn ai standards are rehashed to fo rge a new consensus. Some cominui ry in deliberations has been provid-

ed by rhe Court's authorization of rhe appo imment of a Reporter whose tenure o n the Co mmittee is not limited. Th at position prese ncly is fill ed by Professor Donald I~ Judges. who is o n the fac ulty of the University o f Arkansas Schoo l o f Law. Another innovat ion see ms to have served the Comm ittee wel l. Th ro ugho ut irs history, the AM I Comm ittee has sought input fro m the sitting bench and the practicing Bar. Techno logy has fac ilitated th at input with rhe posting of the instructi ons while in draft on th e Co un 's website form (hrrp:llwww.cou ns.state.a Anot her chan ge, d rive n in pan by technology, has not been unifo rm ly viewed as fel icitOus. At lhe insistence of th e publisher, Tho mso nWest. th e 2004 Ed itio n o f ARKANSAS M ODEl

General trial and appellate practi ce

Daniel R. Carter John D. Coul ter Paul J . James Robert T. James

Establishd / 986

500 Broadway. Suite 400 Little Rock. Arkansas 7220 I

16 TI1C Arkansas Lav"ycr



changed from a hard bound volume ro a pamphlet. That change was acqu iesced in by the Co mmittee because of assurances th at the ove rall cos t ro the practi tioner would no t increase, and because it provided th e: oppo rtuni ty to integrate updates as rhey are made. AM I was alread y published in el ectro nic formar, and with annuaJ pa mphlet-type voltlllles, the phys icaJ ve rsio n now co rres ponds to the electron ic ve rsion. No lo nge r does the pracritioner or the judge have to refer to a Pocket Pan fo r changes in instructions, new instructi ons, o r supplements to the comments. The achievements in pattern instruction in Arkansas co mpare favo rably with resources available to members o f th e Bar in other states. A su rvey of parrern instru ctio ns published in ocher states reveals that fou rtee n have instructio ns that pertai n to contracts. No state, with the poss ible exception of Michiga n, has ins[fuctions that are as co mprehensive as those in AMI pertaining ro actio ns under th e Unifo rm Comm ercial Cod e. Whil e States have adopted instructi ons pertainin g to business torts, antitrust, and trade secrets, no ne has add ressed the

number of statu to ry causes of actio n addressed in AMI. o nce rn about th e fun ctionali ty of th e jury decision process continues. no twithstand ing rh e d evel o pment o f pattern instructio ns in both th e state and the federal courts. A new reform m ovemelH argues that th e language used with juries remains arcane and unintelligible. T h is movement, known as the "plai n language" movement, urges [hat instructio ns be furth er revised to speak in the ve rn acular. Set Bettina E. Brown stein. It 's Time 10 M ake Jury Instructions Understandable, 37 ARKANSAS LAWYER 24 (2002). Techn ica l wri ting systems, includ ing th ose used by the military and the p riva te secto r in the preparation of ind ustri al manuals. analyze vocabulary and make predi ctions abo ut the intelligibili ty of written instructio ns. This di scipline co ul d be instructive to the bench and the bar in achiev in g furth er cl ari ty in its communic3tio ns with laymen. Leo n G reen. who received h is u ndergrad uate educa tio n in Arkansas. se rved as Dea n of Northwestern Law School fro m 1929 to 1947, and th en ta ught CO rts at th e Uni ve rsity of Texas School o f Law until shortly befo re h is death in 1979, contended thar the jury instructio n process was largely a mea ns for appellate courts to co ntrol jury oucco mes. He co nten ded the fo rm ulations we re creared for appell ate com rol of the jury d ecisio n making and no t to el icit understanding and tho ughtful judgment from laym en. Su L. G ree n, T HE LITIGATION PROCESS IN TORT LAw 37 1 ( 1965). Tho, cynicism does not, however, d o m inate the p ro fession. T he Arkansas Supreme Court a nd ItS co mmi nees o n M od el Jury Instructio ns strive to crea te instructi ons that, whi le consistenr wi th legal prin ciples, permit laym en to d ecide cases in an effort to achieve the judgment of peers, which our system recognizes CO be as close to true justice as a mere mo rtal can achieve. T hat o ngoi ng effort is the reason th at, when I expressed than ks to aJi who had served on the AMI Co mm irree during my tenure as C hairm an in [he fin al Preface to an AM I Ed iti on, I wrote in November 2004, part of m y g ratitude was bec3 use, ... .. re]ach has by exa mple reass ured me th at our profess ion seeks co achieve excellence and p ro mote the co mmo n good. " â&#x20AC;˘

Regardless of the merit of the invention, this inventor has likely lost all patent rights by waiting too long to file.


Protecting Your Client's Right to a Patent: Don't Wait Too Long to File By J . Charles Dougherty

All too o ften, an inve ntor comes into my office with a story like th is: I wam to caJk to you about a parem fo r my inventio n. The first year's sales were slow and I wasn't sure if I needed a patent, but th ings are real ly raki ng off now and I need some protectio n. Just as there are statu res of li mitation for many legal claims, there are also deadlines fo r fil ing a parem applicatio n. Rega rdl ess of the merit of the invenrio n, this invem or has likely losf all pacem rights by waiting too long ro fi le. T he specific co ndi ti o ns u nder which patem filin g deadlines arise are fo und in the Patent Act's "starurory bar" provision, 35 U.s.c. 搂 I 02(b): A pe rson shall be em ided to a patent unless ... rhe invenrion was patented o r descri bed in a primed publ ica ti on in this or a fo reign co untry or in pu blic use o r on sale in this co untry, mo re than one year prio r to th e date of the application for patent in th e Un ited States. There are thus four acti vities that may trigger a statu tory bar: ( 1) patenting th e inventi o n prev io usly; (2) describing rile in Vt llliuli in a printed pub licatio n; (3) pub li cly using the in ve ntio n in th e United States; o r (4) offe ring rhe invem ion fo r sale in the Uni ted States. If the inventor does not file a patent applicat io n within one year of the earliest of these acti viti es, then al l potenti al patent rights are lost. T he Printed Publication Bar Th e (erm "primed" includes nor on ly paper documents bur also those appearing in orher media, such as electro nic docun ments and web pages. "Publicatio n means any docu ment that is accessible to interested 18 TIle Arkansas La""er

parties by means o f a reasonable search. Even a document that exists only in a si ngle copy may be consid ered a publi ca tio n if it is reasonably access ibl e, such as when it appears in the ca rd catalog of a library. Likewise. rhe clisrrihurion of only a few cop ies of a document may res ul t in a pu blication if th e people to whom the co pies are d istributed constitute a significant proportio n of th ose perso ns wo rkin g in the applicable fi eld. The Public Use Bar An y use o f an invention in its custo mary and inrended fas hi o n will likely be co nsidn ered a "pu blic use. It is thus not necessary that the use actual ly be visi ble to the public. For example, rh e use of a secret process in the manufacture of a product may be considered a publi c use, even if the manufacturing process ca nnot be reve rse engin ee red fro m an exa m inatio n of the product. An importa nt exceptio n to the public use bar is ex perimental use. T he couns have long recognized that some inventions by th eir ve ry natu re must be rested publicly befo re the functi on of the invention may be co nfirmed . T his exception, however, is l1arrowly applied; fo r example, a use will almost certain ly be co nsidered no n-ex perimental if the inve nro r d eri ved a profit from ir. Marker resting is no t an experimental use. T he On路Sale Bar The o n-sale bar arises if there is a commercia l offer fo r sale and the inventio n is ready fo r patenting. T he offer need not be pu blic. A comm ercial product need not even have bee n built yet, since an invention is ready fo r patentin g once its design is CO I11 plete. T hus the so lic itatio n of advance o rde rs may tri gger the o n-sale bar.

Foreign Patents Since a U.S. patent provides no protectio n against a com petito r's fo reign activities, many U.S. fi lers will also seek patents in fo reign jurisdi ctions. Each jurisdk ti on has its own sta tu tory bar rules, b ut almost no ne of them incl ude the o ne-year grace period that in ve nto rs enj oy under U .S. law. If a U.S. patent app lica nr fi les a fo reign application within o ne year of the U.S. applicatio n's filing date, most fo reign ju risdictio ns will treat the applica tio n as if fi led o n the sa me d ate as the U.S. app li catio n. But fail ure to file so mewhere before engagin g in a bar-triggering activity-s uch as p ublishing a descriptio n of th e inventi on-will resul t in the co mplete loss of pote ntial patem ri ghts in most jurisd ictions. T herefore, an invento r who wishes to retai n the right to seek fo reign parenrs should ideally file a U.S. applica ti o n befo re an y d isclosure o r use of the inve nrion. Avo iding Statuto ry Bars Given the principl es oucl ined above, the best pracrice is to fi le a patent app lica tion 3S soo n as the inve nrio n is co mp lete. T his does no t mea n that an inve ntion must be "per_ fected" pri o r to filin g. T he in ventive p rocess seldo m leads to a staric result, but instead is usually an o ngoin g series o f mod ifications and improvements. Th us even when the invento r bel ieves mo re wo rk could o r sho uld be do ne, the ben er practice is to file a patem applicatio n d irected ro an initial ve rsio n of the inventio n. and then fo llow up as needed with applicatio ns directed to improvem ents.

J. ClJarles Dougherty is a registered pate1Jt attorney ill tlu Little Rock office of

Wright, Lindsey <7,.,mings LLR

Patt Pine

Seabees Service in the Second World War A Judge in the Making by Bill Wilson and Beth Deere Un ited States District Judge G eorge Howard, Jr., has spent a lifetime building bridges - both literally and figurativel yand fighting for good causes. Thus, rhe officiaJ mono of his beloved Seabees seems tailor-made for him-Constuimus, Bntuimu.s -"We Build, We Fight." His remarkable ca reer was shaped , in no smaJl pan. by his Wor ld War II military servi ce in th e "Seabees," the mi lirarized NavaJ C onstruction Force, whe re rh e idea of studying law first ca me to a young George Howard, Jr. , in the middle of th e Pacific Ocean. 20 TIle Arkansas la\-'Ycr


On Janu ary 5, 1942, rwenry-nine days after the Japan ese attacked Pearl Harbor. the Seabees were born. That same year, a bright yo ung I O[h grader attendi ng a racially segregated high school in Pine Bluff, Arkansas, read an anicle in th e local newspaper that piqued his interest. The articl e annolln cen an opportunity for young people ro rece ive "real world" job training in their local co mmunities. For those who did well, there was the chan ce ro travel ro parts of the country far from Arka nsas- places that yo un g George Howard. J r. , had seen only in books. His parents were skeptical. Educa tion was

a core family value. along with devotio n ro God and service ro mhers. They feared that if their so n left high school ro participate in th e National Youth Administration ("NYA") program, he might never finish his education. i But th e yo ung man , a passionate advocate even then, made his case: There was a shortage of labor in industries in th e North and Eas t as the nation geared up for th e Second World War, and young Howard wanted ro ea rn th e chance both to travel and to be a part of the war effort. Reluctantly, his parents agreed to let him presenr his plan to his high school principal. H e co nvin ced his high school principal. who assured him that when the certain-robe-brief war ended, he would be allowed to return to high school to earn his diploma. The yo ung man studi ed hard and excelled in the NY A program. At the end of th e training co urse, the superintendent of [he Pille Bluff NYA reco mmended that Howard be sem [Q Co nnecticut to work in suppOrt of the wa r effort. His parem s brought him to Little Rock, whe re he boarded a train to Plainville, Connecticut. Once there, he began working in a ball bearing plam, making parts for airplane engi nes. George Howard's des tiny did nOt lie, however, in a ball bea ring plant in Plainvi lle, Co nnecticut. fu soo n as he turned eighteen, he was drafted. H e returned to Arkansas and reported for duty. A you ng li eutenant approached him after inspection and asked him what branch of the military he wamed to serve in. Youn g Howard was taken aback. He rholl ghr he kn ew. from readi ng the news and from the rumor mill, that all black inductees were automatically ass igned to the United States Army. No chance to join the Navy or Air Force. He did not know until that moment that in June 1942, the Navy had begun acce pting black indu ctees. 2 When he learned that he really did have a choice, he was quick to reply: "The United States Navy, Sir." And it was done. He was directed to one side of the room , with the white inductees; all of his black friends were sent to the other side of the room. Onl y later did he figure our that his NYA training and se rvice accounted for hi s having had the choice CO join the Navy. That day, he was the only African -Am erican co follow the young li eutenant ontO the crain bound for boot ca mp in Williamsburg, Vi rginia. Once th ey arri ved at boor ca mp in Williamsburg, the group learned their 10[: "We're going [Q esmblish a co nslf uction bat-

ralion, so yo u're all Seabees," they were rold. (The ni ckname Seabus is derived from the initial leners C and B of Construction &malion.) True ro their calling, Howard and the other young Seabees learned to build bridges, ai rstrips, piers, ammunition magazines, warehouses, hospitals, and roads. They also received assault training supplemcnral ro their primary duey of building. Sea bee Howard regularly wenr ro chapel , cominuing a life- lon g habit of arccnding church. He liked ro describe himself as a "church man," fo r after all, hi s father was a Baptisr preacher. At chapel that first Su nday, Howard noriced that the chapl ain had no pulpit, bur only a rabie, to use during [he wo rsh ip service, so he spem his spare time the next week foraging for materials and building a lectern so th ar the minister would have a place ro rest his Bible. Without a word, Howard placed it in the chapel. At the next chu rch service, the delighted chaplain insisted that the builder identify himself, and a reluctant George Howard raised his hand . The chaplain was so impressed with H owa rd 's initiative that he asked him to be his assistanr. "Can yo u eype?" In fact, he could nor. Undeterred, th e chaplain offered ro teach him , and Howard happily transferred ro [he chapl ain's command where he eyped leners ro fa mily members of servicemen. After basic training, [he Seabees were sent to Gulfport. Mississippi, for advanced training. Rumor had it that mey would soon be deployed overseas-maybe to Europe, maybe ro Africa. But fate intervened. The second Sunday in Gulfport. after chapel. [he Seabees ga[hered for lunchmostly whites at [he front of the line, mostly blacks at the back. They were served steaks that day. However, the kitchen apparently ran o ut of steaks and began to substitute chicken. Beca use mosr of the black Sea bees were at the end of the lin e, they wound up with chicken instead of steak. One black Seabee began [Q complain loudly. The protest escalated imo a scuffle. The nex t day, the co mm and er of Howard's group called all of the black Seabees to a meering. Once the black troops were assembled. the com mander announced that they we re all ro be disparched back (0 Virginia immediately. When asked why, he responded: "The problem that we had yesrerday ca nnot be tolerated. We are in a war. We will be go ing ove rseas, and we don't want any problems. So, get packed. You're go ing back to Virginia." After [he meetin g.

Howard went straightaway to the co mman - imporranr package. He made the difficulr der's office. He asked to sray with hi s group journey alone, never stopping along the way, in Mississippi. bur the requesr was summar- and successfully completed his mission. ily denied. All black Seabees. including Looking back, he believes thar the mission Howard, were rerurned (0 Virginia to form was a test of sorts, another test he passed the newly crea red 2 1St Special Seabees unit. with disrinction. It was composed almost entirely of black Two days later, the com mander assemSea bees, with the exception of a few whites bled the troops to ann ounce thar Japan had who worked in headquarters and as techni - surrendered. Unbrid led joy. relief, and cians. After it was organized. rhe group was rhanks fill ed rhe rool11 co the rafters. An airsem ro Califo rnia fo r advanced trajning. craft carrier, the USS Horen, was co nverted They [hen boarded a ship headed [Q [he ro a troop ship to rerum [he weary Seabees South Pacific. ro their ho mes across rh e waters. Howa rd 's Three days inro the journ ey to (he group was assigned ro an area on the iliird Admiralty Islands, the ship encountered a level of rhe ship. All were using [he same violem Storm. To make the perilous circum- washroom, whites and blacks alike. All ate srallce worse yet. :I Japanese sub marine was in the same mess hall. On the third day out, trailing the sh ip, requ iring the ship to make however. when Howard rose early and evas ive maneuvers while rryi ng to survi ve walked to rh e washroom. he was met by an the roiling waters of the Pacific. Seabee armed guard posted at the washroom door. Howard drew on his faith co get through the The guard warned How::.rd nor to en ter. A new order had relegated black Seabees [Q the terrifying night. Once in the Admiralty Islands. Howard use of only certai n black-only washrooms. Howard re(ll med ro his area, awakened was assigned to a nava l su pply area where he worked supplying [he Navy wi[h medical his friends, and cold them of the disturbing suppl ies, food. ammunition, weapons, development. H e had al ready begun to forclothing. and whatever else was needed. H e mulate a plan. "Let's select a committee and helped build warehouses and roads as well. register a co mplaint with the officers." Bur Even though Howa rd had lost his men- even his good friend balked. "No. I haven't ror, the chaplain, in the overnight reassign- seen my wife in years, and I don't want to be ment of the black Sea bees from Mississippi accused of sra rtin g a riot, or risk receiving a ro Virginia. his energy and dete rmination dishonorable discharge." Others agreed, were noticed again, this time by a lieurenanr fearing that this might be an attempt to get on the Is land of Manus. Th ro ugh the imer- them all discharged dishonorably. Not a sinvention of the li eutenant. Seabee H oward gle person stepped forward to go wi th him. was given the op portuniey ro take an exam Howard was stunned by me response. but to become a coxswai n, in charge of a small decided ro press on alone. H e returned, by craft delivering messages and transporting himself, to rhe armed guard and asked officers from ship ro ship for meetings. True whe re to find the officer of the day. Predic[ably. [he office r of [he day was busy to form, he passed the exam with Aying colwhen Howa rd ar ri ved, and he was instructors, scoring 100%. The next Stop for Coxswain Howard was ed to sit and wa ir. For two hours he waited. Subic Bay, Philippines, for a co urse in self When rhe officer fin ally received him, defense. Rumo rs circulared that rhis group was to be a part of rhe Bill Wilson is a United inirial invasion of the island of States District Judge for [he Japan, and the course was meant Eastern District of Arkansas ro prepare the builders ro fight. Tears were shed and prayers se nt up. but they all had dedicated their lives ro defending (heir country. and they all willingly followed orders. They boarded the ship and set sail for the Philippines. Beth Deere is a lawyer with Coxwain H oward was aga in Williams & Anderson PLC, si ngled our for a special assignLittle Rock. Arkansas menr. He was ordered ro drive a Jeep to Manila to deliver an

Vol. 42 No. l!Winler 2007

TIle Ark.,,,as La"yer


Howard explained ,he problem. The officer disclaimed any responsibilicy for rhe new policy. "That o rder came from up above. I'm simply carrying it out. Now. if yo u wam [0 go further with this, you can see rhe ensign who is my immediate superi or. He's on the nex t Aoor. " Up co rhe nex t floo r marched Coxwain Howard, where he sat wai ting for anomer cwo hours. The ensign listened as Howard made ,he case: Black Seabees had willingly given all that they had-some even their

lives-to fight for the nation. It was not right for them now to be subj ected ro the humiliation of racial segrega tion. The ensign asked his name. "George Howard," came the dete rmined reply. He said, "George. lis[en to me carefu lly. I agree with you. The order came from up above. and there's nothing I ca n do to change it. You need to go [0 my superi or and talk with him. But, whatever you do, maintain your calm. Don't get emotional or upset. I'm with you. I suppOrt you. but this has to stay between the two of us. n Before Howard left, though, the ensign as ked whether Howard had ea ren anything that day. As a matter of fact, he had nor, and by now, it was well past both breakfast and lunchtime. The ensign gave the hungry young man a drink and a sandwich. Revived and still determined, Howard went to see rhe ensign's superior. There he sa r for another two hours. He was mer wirh hostili ty: "Why are you rrying to creare a problem? Do you wam to start a rim?" He remembered the ensign's advice and knew that the ensign had amicipated the reaction. He tried to ass ure the officer th at his intent was simply to righr a wrong, but to no avail. The new policy of segregation would remain

in place. Next he went to see the Caprain. Anomer wair. Ir occurred ro Howard that perhaps all of th e waiting was another test of sorts. M aybe they ,hought he would jus, give up, go back [0 ,he ship's ,hird level, and live with segrega red washrooms. When the Captain received him, Howard patiently made th e case aga in for equal treatmenr of black Seabees. As ,he s<ory unfolded, anger Ras hed in th e Ca ptai n's eyes, but his fury was nor meanr for Howard. Instead, he thanked Howard for reporting the situation to him, then excused himself to make a call. When he returned, he asked Howard to deliver the message to all in his group: "You [ell your friends ro go back to the washroom romorrow morning. It'll be right by then." By the rime Howa rd returned to his group, darkness had fOllen. In fOct, mos< in his grou p had retired [Q their bunks when Howard delivered the welcome news. Tha, nigh" as he lay in his bunk, Howard thought back on his experiences as a Seabee. He pondered the situation in Gulfport. Mississippi, where the black Seabee complai ned loudly .boll[ the food. He remembered the unfairn ess of th e co mmander's sending all black Seabees back to Virginia, even those who had not been a pan of the mess hall disturbance. He thought abo ut the you ng lieutenant who gave him me chance to join the Navy. He remem bered the sense of empowermem he felt at being given a choice. He ,hought aboll[ ,he chaplain and the lieutenant who gave him oppo rtun ities ro :ldvance. He remembered the co mmander who singled him out of th e group for me mission to Manila. It was then, at the end of a long and arduous day, that it dawned on

Howard what a long struggle for racial equaliry lay ahead . But so meone had [0 persevere. Someone had to press on. Someo ne had to fight ,he good figh' agai nst racial segregation. not with guns and bombs, but with unrelenting determination. He knew his destiny: 'Till goi ng ro be a lawyer. n That journey. roo, req uired perseverance. When the war-weary troops arrived back in the Stares. Howard immediatdy went to his old high school to re-enroll. The prin ci pal was rel uctant, however, to readm it him. It had not been the brief war that all had expected. Howard was no longer a youngster; he was now a grow n man whose ex perience and ma[uri ry did nor fit weJl in a high school setting. Howard prevailed upon the principal, however. and was allowed to comple,e high schoo l. In fOct, he finished ahead of schedule due to credit for his studjes while in the military. After high .<chool. H oward used the G I Bill of Righrs to attend Lincoln University. He was accepted into Lincoln Universiry's Law School, but he had read ,ha, ,he Universiry of Arkansas had begun ro admit black students. He wa nted ro return to his home state. He was accepted at the Un ivers iry of Arkansas School of Law, bur rhere was one more hitch. When he arri ved ar the office of th e Dean of Studems for his dormitory assignm em, the Dean ca ndidly admitted, "\Y/e didn't know you were black. We haven't imegrared our dorms yet. " The Dean arranged for Howard to live with a local black fami ly rempor:lrily. Several months late r, another hurdle fell and

Seabees continued on page 47

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2006-2007 Arkansas Bar Association Board of Governors

Front Row (I to r): Colette Honorable, Phyllis McKenzie, Michelle Cauley, Glenn Vasser. James Sprott, Richard Ramsay, Cindy Thyer. Donna C. Pettus, Carolyn Witherspoon, Tom Womack; Second Row (I to r): Chalk Mitchell, Randy Jackson, David Fuqua, Thomas Carpenter. William James, Jr., Danny Rasmussen, John Peel, John Vines; Third Row (I to r): Don Hollingsworth, Judge John Finley. William Martin, Frank Sewall, Brian Ratcliff. J. Leon Johnson, Harry Light; Fourth Row (I to r): Eddie Walker. Jr., Jim Pat Flowers, Charles Harwell, Jim Julian, Jack McNulty. Anthony Hilliard, Todd Turner

This photo was taken at the Arkansas Arts Center in Little Rock.

The Arkansa~ LJ"yer





BoNO AcnvmES







Pro Bono Attorney Spotlights 2006 H. William Allen of the Allen Law Firm contributed more than 157 hours of pro bono services this past year making him the 2006 VOCALS Attorney of the Year. He was one of the first pro bono attorneys to join VOCALS in 19 82 and has simultaneously been both a referral attorney and a financial contributor. Additionally Mr. Allen served on the Board of Directors of the Center for Arkansas Legal Services from 1995 to 2003. Mr. Allen has represented clients in a broad range of cases involving consumer issues, debt collection defense, contracts, homeownership and landlord/tenant disputes and tort defense. He understands how vulnerable an unrepresented, indiEent client can be in our legal system. In 1984-85, Mr. Allen was President of The Arkansas Bar Association. During his term, VOCALS received the American Bar Association's Harrison Tweed .'\ward for the outstandinE pro bono program in the country and he attended the ceremony and accepted the award. He nas also been a tirefess advocate in the halls of Congress for increased legal services funding. Robert M. Ford of Wynne is the winner of the 2005 Outstanding Service Award for exemplary achievement and outstanding volunteerism. Each year one attorney who practices in Legal Aid of Arkansas' thirty-one counties IS selected for this prestigious award. Mr. Ford has been a practicing attorney since 1970 and in 2005 volunteered over 101 hours of pro bono service to a needy client in northeast Arkansas. He has, through his efforts, led by example as the Equal Access to Justice Panel was formed with tlie help of the Cross County Bar Association in 2002. He is known throughout the state as a zealous advocate for all his clients. Two of the highest compliinents paid Mr. Ford by his colleagues are that he is a gentleman and a renaissance man. His manners are courtly and convivial at the same time. He possesses a wide range of knowledge on many subjects from the arcane to the practical. As a colleague once said of Mr. Ford, he is in the tradition of some of Arkansas' great attorneys like George Rose Smith, Jimason Daggett and David Solomon. Mr. Ford does honor to tlle profession every day. Kyle W. Havner, member of the Bairn, Gunti, Mouser and Havner law firm of Pine Bluff, is the 2006 Pro Bono Lawyer of the Year for VOCALS. Mr. Havner was admitted to practice in 1991/ joined VOCALS in 1994 and has been a steady, valuable contributor to legal services for tlle poor in Jefferson County. Concentrating in the area of bankruptcy not only has he volunteered his time to representing referrals individually but he has also consulted with and advised legal services staff on consumer matters. He averages four cases a year since joining VOCALS and was a previous Pro Bono honoree in 2002. This year he closed SIX cases and accepted five more on which he continues to work. This increase is especially notable in light of the changes in bankruptcy law which occurred in October 200:';. But it is not just the quantity of cases accepted that earned him this recognition, it is also his dedication to providing quality legal advice and representation that insures his pro bono clients receIve meaningful access to justice. Gal)' W. Udouj, Sr. is the Volunteer Attorney of the Year of the River Valley Volunteer Attorney Project. He is an attorney in solo practice. Mr. Udouj is recognized for his mvolvement in pro bono activities m Sebastian County over many years. That involvement included tlle 1990 founding and chairmanship from 1990-1997 of tlle VAP pro bono program along witlllnitiating town-meeting style assistance for homeowners through legal serYlces after the tornado of 1996. Over these years he has accepted more than ten cases and has been a model volunteer attorney in western Arkansas. In addition, Mr. Udouj has been a member of the pro bono program's panel of referral attorneys from 1990 until tlle present.

GfLfArkansU ~o Bono 1 Partnership

T h a nk Yo u Ve r y Mu c h

Ar k a n sas Pro Bon o A ttorn eys 2006 Lcslic R. Ablondi Raymond Abramson A. Hcath Abshure William C. Ad kisson Matthcw Adlong Jim F. Akins John Aldworth Charles P. Allcn Richard Allen Susan Walker Allen Tom Allcn Charles Phillip Allcn,Jr. William P. Allison Robyn P. Allmcndinger Bill Allred William G. Almand Michael Angel Cecilia Ashcralt Russell C. Atchlcy Jcnnifcr J. Auffcrt Chad M. Avery William Aytes Brent Babcr Phillip Bagby John Keeling Bakcr Charles Baker Charlcs W. Bakcr Cindy M. Baker Shane Baker Waync Ball Randolph Baltz Marc Baretz Derek R. Barlow Marcia Barnes Joe Barrett Thoma L Barron Fine Batchelor Jamcs P. Beachboard Mike Bcarden Daniel Becker John Bell lindsay K. Bell Allcn Bennett Paul Bennctt King Bcn on Jay Bcquette S. Butlcr Bcrnard Dawn D. Bickcr

Scth Bickctt Keith I. BilJingsley John Biscoc Bingham Allcn W . Bird Donald E. Bishop Matt Bi hop Katherine E. Blackmon-Solis Clayton R. Blackstock Amy Blackwood Ralph Blagg John Blair Yandell Bland , Sr. Jill Blankenship Shannon Blatt Joesph Boeckmann David Alan Boling Frank Booth Raymond E. Bornho(t David O. Bowden Angela Bowden Gray Martin W . Bowen Edward Boycc Laurie M. Boyd Bill Bracey Lcn W. Bradley Jeff Branch Eric Bray William Clay Brazil Anthony Bryce Brewcr David Bridgforth William C. Bridgforth John Bridgforth Danny W. Broaddrick Christopher D. Brockett Susan E. Brockctt Debra Brown Earnest Edward Brown Jack E. Brownc Noel F. Bryant C. Brantley Buck Ray Bunch Sherry Burnctt Jamcs Burnctt Jim R. Burton Adam H. Butlcr Arkic Byrd Russcll J. Byrnc Joscph Calvin

Sheila F. Campbell Phillip W. Campbell Craig Campbell David R. Cannon David R. Cannon Jamcs Allcn Carncy Jodi Carney Mark Carney Phillip Carroll David Carruth Staci Dumas Carson Gary L Carson Mark S. Carter Matthew Caner Christopher Carter Clarence W. Cash Mitchell Cash Casey Castleberry William Shane Catcr Brad A. Cazon Marvin Childers Lawrcncc E. Chisenhall Kerry Chism Andrew L Clark Greg C lark Kristin Clark Cunis D. Clements Herschel Cleveland Ralph Clifton Keith D. Coker Kevin Colc Gerald A. Coleman Robert Coleman Mark Cooper David Copelin Robert R. Cortinez Sarah M. Cotton David A. Couch John D. Coulter Nate Coulter Cadc L Cox James o. Cox Kent Coxsey Mike Crawley Brent Crcws Eldon Cri pps J ames Crouch Gcrald Kcnt Crow

GfffArkansas Pro Bono Partnership Susan Crowley Stephen K. C uffman Malcolm Culpepper Jesse Daggett Ed Daniel Sherry Daves J. Scott Davidson Hal W . Davis Steven R. Davis Marva J. Davis Janan Arnold Davis T. Martin Davis Steven R. Davis C harles E. Davis Steven Davis Kat harine Day-Wilson Catherine Dean Abbie Decker Rebecca J. Denison Mike Dennis Grant DeProw Dena C. Dickillson Terry P. Diggs Jimmy Dill Donald Donner David M. Donovan Richard T. Donovan Robert Donovan Brian Dover ruchard c. Downi ng J.J oshua Drake J aso n Duffy Missy Mcjunkins Duke J ames Dunbam Jim Dunlap C hadd Durrett Davis Duty J. Benton Dyke Jack East David LEddy Causley Edwards Margaret Egan Don A. Eilbott Laura D. Elkins Steve Elledge Scott Ellington C harles Ellis Daniel R. Elrod C harles S. Embry Don R. Etherly

David L Ethredge J anie M. Evi ns Leslie Evitts Ann P. Failz Jefferson K. Faught Andrew B. Faulkner J ason D. Files John W. Fink Roger H. Fitzgibbon B. Dewey Fitzhugh Scott D. Fletcher Jim P. Flowers Julian B. !"ogleman Lyle D. !"oster Shannon Foster Thomas Fowler Willttnan W . Fowlkes Andrew V. Francis Byron L Freeland Lesley E. Freeman Andrew Fulkerson Raymond Galloway Paul D. Gant Charles Gardner C hris Gardner Tom Garner Roy R. Gean, III Joe Gertsch Robert Gibson Melinda R. Gilbert Steve Giles Martha G ilpatrick ruehard Glasgo w Dann y Glover J ames E. Goldie Scot P. Goldsholl Ted GoocUoe Allen Gordon Michael Gott Diane G raham

Douglas James Gramling ruchard A. G rant Angela Bowden Gray Melanie L Grayson C had Green Mary E. Gree n Alice Ward Greene Gena H. Gregory Joseph W . Gregory

Rand y L Grice Joe G rider Laura Grimes Althea E. Hadden Shea DeClerk Halbert C harles Halbert .I ames C. Hale Michael J. Hamby Linda Hamilton C. Eric Hance Juli.a M. Hancock John T. Hardin G. Robert Hardu1 Bruce Harlan Price Harned David K. Harp Jeff Harper Terry D. Harper C hristi.a n Harris Harvey Harris Sandra Y. Harris Michael McCarty Harrison Ronald D. Harti on Neal L Hart Michael A. Hart Charles Harwell M. Sean Hatch Jeffrey W . Hatfield Andrew Hatfield Pamela Haun Kyle Havner Cody Hayes floyd A. Healy ruta G. Hempen Megan Henry J ames E. Hensley Carrol Hicks Preston Hicky Jermifer Kicky Collins Kevin Hickey Jerrie Higginborrom Anthony A. Hilliard R. Steve Hix Denise Reid Hoggard Joe Holi.field John T. Holleman Stanley M. Holleman Lori L Holzwarth Elizabeth Am anda Homan J. Marvin Honeycut t

(j ({ fArkansas Pro BODO


ROilald A. Hope Carl Hopkins David R. Horn Max M. Horner C harles R. Hoskyn Marrhew R. Ho u e J ohn Houseal Noyl Ho uston Phil Ho ut Steve Howard James R. Howell Frank Huckaba Curt Huckaby Ann Hudson Michelle Huff Karen J. Hughes Teresa L Hughes Eugene Hunt Ron Hunter Scott Hunter Jr. J ames W. Hyden St eve Inboden Michael E. Irwin Seth Irw in

Maxine lsaacs David L Ivers Scott J ackson Patricia James Patrick R. James GregJames Faber D.J enkins Larry R. Jennings C hristopher Jest er Barry J. Jewell Gary D. Jiles J oel D. Johnson MarkJohnson Phyllis Hall Jolmson Susan J ohnson Margaret A. Jolmston Beverly Hood J ones Jamie HuffmanJones Michael F. Jones Gregory D. J ones Oscar Jones Jim l.Julian WayneJuneau David W. Kamps Brad Karren Martin A. Kasten


J ack R. Kcarney Eugene Kelley Donald Kendall William H. Kennedy Charles Kester Matthew J. Ketcham Terri KienJen Joshua King M ichacl Knollmeyer Will Kueter

Trad laCerra Craig S. Lair Stewart Lambert Michael A. LeBoeuf Michael Ledbetter Terry Lee Missy Leflar Stephen Lewis Tamla Lewis Louis 'Whit' light Martin Lilly Matthew l. lindsey John lingle Dale lips meyer Lynn lisk Courtney little Davis Loftin Mary Laos William P. Luppen Rebecca Lynn Terry Lyml Jean M. Madden Jeffrey G. Maim Drake Mann Leon Marks David P. Martin Howard l. Martin Aaron Martin Brent Martin Jack Martin John Martin Everett o. Martindale Michael H. Mashburn Stephen A. Matthews Richard Mays Patrick McCarty Laney Gossett McConnell J oanne McCracken Taura McDaniel Ginger J. McDonald

Phillip A. McGough Thomas H. McGowan Mark McG uire Josh E. MeHughes Agather C. McKeel James McLarry Kaye Harten tein McLeod Melissa McManus Benjamin C. McMinn Judy P. McNeil Rogcr McNeil Keith Martin McPherson Carla M. Meadows W. Russell Meeks RoyE. Meeks Scarlett R. 4elikian Christian C. Michaels Brian Miles J ames Miller Randel Miller Phillip J. Milligan Philip Miron Michael W. Mitchell Chalk Mitchell Gary Mitchu son Don Mixon H. Clarke Mixon DeeNita D. Moak Mark Moll Orin E. Montgomery Kristi Mood y David Moore John E. Moore H.T. Moore R. Scott Morgan Eddie Morgan Roger Morgan Stephen Morley George B. Morton James C. Moser Rosalind M. Mouser Wm. Kirby Mouser David Mullen Tim Murdoch Ralph Myers Tim Myers Graham Nations Gregory Niblock C. Ryan lorton Mac Norton

GfffArkansas ~o Bono Partnership

Alan J. Nussbaum Conrad Odom Kevin M. O'Dwyer J olm Ogles J ames E. O'Hern Bennie O'Neil Dan M.Orr KevinJ. Orr Mme Orsi Ken Osborne David Osmon Tom Owens Lance Owens Delanna Padilla Steven L Parker Samuel J Pasthing Annabelle Patterson Jerry D. Pattc",on Claibourne Patty Chris Paul Kristin Pawlik Jenniler Pelphrey B. Jeffrey Pence Suzanne Penn Mark Alan Peoples Joe R. Perry Lamar Pettus John G. Phillips N. Drew Pierce Robert Patt Pine George N. Plasmas Lynn Plemmons Shannon L Poore J ames ' Lamar' Portcr Jesse ' Rusry' Porter,Jr. Jerry Post Donna Price Kelly Procter-Pierce Brian Rabal William Pal Rainey Phillip A. Raley Danny Rasmussen Jaso n D. Reed Emily Reed Richard Rcid W. Michael Reil Paul Reynolds George R. Rhoads Richard F. Rhodes Randy Rice

Kris Richardson Melissa Richardson Kirby Riffel Kimberly M. Riley Deborah Truby Riordan Lewis E. Ritchey Dan Ritchey Jason Robb M ichae! Roberson Jerry D. Roberts Bonnie Robertson Jeannette Robertson Reginald Robertson Thomas E. Robertson, Jr. William S. Robinson Brandon C. Robinson Spencer Robinson Gill A. Chris Rogers Joe Rogers Charles D. Roscopf Amanda Capps Rose Robert D. Ross Bill Ross Tracy R. Rothermel Kristen S. Rowlands Herbert C. Rule Coy Rush,Jr. J. J arrod Russell Stacey Ryall Donald S. Ryan Ted Sanders P.J on Sanford Shelron E. Sargent G. Randolph SatterEield Stephen P. Sawyer Edward H. Schieffler Bruce F. Schlegel R. Douglas Schrantz Steve Schulte Fran Scroggins J ay Scurlock Alan V. Seagrave 1II J. Fletcher See Gail Segers Sherry Seiffert John Settle Jane Watson Sexton Stephcn Sharum David C. Shelton

W. Bradford Sherman Michael J. Sherman Jim Short Da\~d E. Simmon David L Sims Bradley D. Sipe John Skaggs JT. Skinner J ack Skinner Lynn Skinner R. Brannon Sloan Shaneen KeUeybrew Sloan Brian C. Smith Derrick W. Smit h Gregory G. Smith Shannon Short Smith Simmons S. Smith J. Tinlothy Smith Mike Smith Raymond Smith Scott Smith David Solomon Eric Soller Herb Southern Michael W . Spades Blake Spears Franklin T. Spencer Frederick S. Spencer Jeffrey L Spillyards Pattick L Spivey J. Mark Spradley Scott Stalker J ames W. Stanlcy Larry Steele J. Michael Stephenson Amy Lee Stewart Paula J. Sroreygard Jocelyn A. Stotts Ted Stricker Melanie J . Strigel J odi Strother Robert Stroud Gary L Sullivan J ack Talbot Kathleen T aJbott Timothy Tarvin Jimmy D. Taylor Zachary Taylor Don A. Taylor Joanna P. Taylor

Grff Arkansas Pro Bono Partnership Stephcn L. Taylor Kent Tcster Albcrr J. Thomas A. J an Thomas, J r. larry J. Thomp on Robcrt Thompson, III E'rederick P. Thornc Chris Thycr R. Bryan Tillcy Winfrcd Trafford Chri rop her L Travis William Trenrham William H. Tricc James L Tripcony Casey R. Tucker Gary W . Udouj Shannon Holloway Underwood Andre K. Valley James F. Valley Kim Van oy Mary Ellen Vandegrift David Vandergriff Gary Vinson Patricia Virnig Stevan Vowell Ralph Waddell Wayne Wagner J ack Wagoner

Ronald C. Wilson Reba M. Wingfield George R. Wise DavidJ. Wood Stephen K. Wood Arion Woodruff Mars ha C. Woodruff linda Woodworth Alan G. Wooten Herbert T. Wright Lynn Uk Wright Danic.l Wright Lance Wright Marshall Wright John R. Yatcs Van Younes Cary E. Young Dan C. Young Danna Young H. W ayne Young Kimberly Dickerson Young Robert E. Young Robcrt P. Young Thomas A. Young WayncYoung Steven S. Zega Barr Ziegenhorn

Danyclle Jones Walker Curris J. Walkcr Kecna V. Wamble J ames L. Ward Donald E. Warrcn Sr. Stan L Warrick Ralph Washingron Dana Watson

l cffWatson Tim Watson Jennifer W eaver KandyWcbb Kelley W ebb Jeffrey A. Webcr Raymond Wcbcr Richard R. Wcst Lori Whitby Brooks White Troy Whirlow Stephen E. Whitwcll Jennifer B. Wiggins Media Wilkins Brian Williams Humer Williams Todd Williams Wade Williams Zachary David Wilson Philip M. Wilson E. Dion Wilson

F in a n c i a l Commitm e nts Platinum Leadership Supporters $1,000 alld above Ralph C. Hamner Jr. University of Arkansas School of Law Student Bar Association Wright, Lind ey &: J ennings (Northwest Arkansas)

Gold Supporters $501- $999 Lee Richardson

Silver Supporters $401-$500 Bob Alsobrook

Kevin Griffith (Law Student)

James E. Hathaway & Gael Sammartino

Gf(fArkansas Pro BODO I Partnership

Bronze Supporters Jordan Abbott Steven W. Abed A. Heath Abshure John T. Adams James H. Akins H. William Allen Justin T. Allen Michele Simmons Allgood Mark H. Allison Robyn P. Allmendinger Allison R. Allred Overton S. Anderson Philip S. Anderson Elizabeth Andreoli Richard Lance Angel Edward R. Armstrong Kay Kelley Arnold Jess A kew Michelle Ator Donald H. Bacon James C. Baker Kristine Gerhar Baker Darryl E. Baker Cassandra P. Baldwin J. Madison Barker Don K. Barnes Michael D. Barnes W. Chris Barrier Sherry P. Bartley Cynthia A. Barton Steve Bauman Samuel R. Baxter William Thoma Baxter Robert B. Beach James P. Beachboard R. T. Beard Paul B. Benham Eric Berger Mitchell L Berry M. Stephen Bingham Garland W. Binns William C. Bird Carl R. Bishop

$350 - 400 William E. Bishop C. B. Blackard MalcoLn Bobo TimBoe Abraham W. Bogoslavsky C. Tad Bohannon Timothy L Boone Sylvia Borchert Glenn E. Borkowski William H. Bowen Dan R. Bowers Joel David Boyd Ali M. Brady Mark Breeding Benjamin D. Brenner Brook A. Brewer Brian A. Brown Debra Brown J. Lee Brown Robin Brown Bettina E. Brownstein John S. Bryant Chuck Buchan Thoma G. Buchanan C. Brantley Buck Robert B. Buckalew C. Douglas Buford Larry W . Burks Kevin R. Burns Patrick A. Burrow Julia L. Busfield Ja mes A. Buttry Paul Byrd Arkie Byrd Robert D. Cabe Andy L Caldwell Ken T. Calhoon John C. CalhounJr. Howard G. Campbell Rick Campbell I3randon B. Cate Meredith P. Catletr S. Graham Catlett

Michelle H. Cauley Robert M. Cearley Donald Chaney Victoria Charlesworth John S. Cherry E. B. 'C hip' Chiles Lile Choate James C. Clark Charles B. Cliett Robert S. Coleman Charles T. Coleman Ken Cook Barry E. Coplin Chris P. Corbitt Allison J. Cornwell ate Coulter Ray F. Cox Dougla W. Coy Bryant K. Cranford Kevin A. Crass Brad Crawford Michael Alfred Crockett J. Bruce Cross Courtney C. Crouch Adam H. Crow David Curran William Webster Darling James E. Darr John Gary Davis Minor W. 'Trey' Da\~s Oscar E. Davis J. Mark Davis John D. Davis Stephanie DeClerk Betty J. Demory Alison A. Dennington M.Jane Dickey Jeffrey H. Dixon Allen C. Dobson Melody Miller Donner Richard T. Donovan Annamary Dougherry J. Charles Dougherty

(f Arkansas !,,"o Bono

GfA 1

Lee Douglass Terry D. Dugger Dale B. Du ke Wm. David Duke Missy MeJ unkins Duke David L. Eanes Mic hael Easley Walter M. Ebel William A. Eckert William H. Edwards Byron M. Eiseman Justin S. Elrod Stephen C. Engstrom Monte D. Estes Susan ichols Estes Robert M. Eubanks Audrey R. Evans Harold J. Evans John Carter Fairley Joseph R. Falasco Frank Hamilton Falkner Jack on L. Farrow Frances S. Fendler Todd Ferguson Elizabeth Fletcher D. Keith Former Grant E. Fortson Kent R. Foster Stephen Doak Foster M. Elizabeth Francis Randal B. Frazier G. Spence Fricke Thomas W . Fuquay Donna S. Galchus Chris Gardner Katey W . Gardner Price C. Gardner Garland J. Garrett J ames M. Gary Allan Gates Erika Ross Gee Joseph W. Ghormley Martin Gilbert Steve Giles W . Dent Gitchel Roger A. Glasgow Jim Glover Robert P. Gminski Chuck Goldner Arnold . Goodman Patric k J. Goss


Greg Gough Connie L. Grace David A. Grace David M. Graf Jcffrey M. Graham Richie Graham Kathlyn Grave Sarah Greenwood Todd A. Greer H. Watt Gregory J im Gresham William M. Griffin Tlmothy W . Grooms Russell Gunter M. Ruthie Hagan Michael E. Hale Kelly Halstead Mark Halter Harold W. Hamlin Claire Show Hancock A. Vaughan Hankins Matthew G. Hankins Stuart W. Hankins Regina Haral on John T. Hardin Melva Harmon Ernest Harper Tammera Rankin Harrelson Ammie E. Harris James Edward Harris Patricia Siever Harris Frcd H. Harrison Paul E. Harri son Mike Hartje Richard F. Hatfield James E. Hathaway Patricia J. Hays Daniel L. Heard Peter B. Heister Christopher J. Heller Kyle Helley Ke nn y Henderson Jason B. Hendren Brad Hendricks Donald H. Henry Robert L. Henry Rosanna Henry Clifford J. Henry Judy S. Henry Robe rt W. Henry Mark Henry

Daniel L. Herrington Basil V. Hi ks Sam Hilburn Katherine M. Hingtge n C)'Til Hollingsworth Don Hollingsworth William Gary Holt Janan Kemp Honeysuckle Joel F. Hoover Paul W . Hoover Gregory M. Hopkins Mariam T. Hopkins Allan W . Horne Bryan E. Hosto D. lichael Huckabay Mike Huckabay Joseph B. Hurst Ginger C. Hyneman Alexandra A. lfrah D. Keith lngram Scott Andrew Irby Herman n 1vester Stuart J ackson Alston Jennings John M.Jewell Michael R.Johns Amy Dunn Johnson Bon nie Johnson Lynda M.johnson Stephen . Joiner Glenn W.Jones Larry E. Jones Tonia P. Jones W . Wilson Jones Gregory T. Jones Jerry C. jones Stephen W.Jones Shelli Jordan Colinjorgen en Michele M. Kaemrnerling Charlene F. Kane Martin A. Kasten 'vVilliam B. Keisler J ana Kim Keller Judson C. Kidd joseph E. Kilpatrick David Knight Cynthia W. Kolb joseph F. Kolb John Kooistra Melissa C. Krebs

Peter G. Kumpe Craig S. Lair Scott J. Lancaster Stephen R. Lancaster Judith C. Lansky J ames D. Lawson Michael F. Lax Samuel E. Ledbetter Jason A. Lee T. Michael Lee Thomas P. Leggett Josh Leicht Todd A. Lewellen Harry A. light Alice F. lightle John G. We Gary F. Liles Bruce R. lindsey David A. littleton lizabeth Lookadoo D. icole Lovell Chester C. Lowe Edwin L. Lowther Robert Lyford Eva Madison Mary MichelleMahony Gabriel D. Mallard Leslie Mann Amy C. Markham Leon Marks Russell D. Marlin William T. Marshall David P. Martin Susan Fox Martin William A. Martin Gary D. Marts Clark W. Mason Terry L. Mathews Jo Ann C. Maxey Walter E. May Ronald A. May Michael R. Mayton Martha Jett McAlister Patrick W. McAlpine Mark McCarty J. Cal McCastlain W. A. McCormick Robert K. McCulloch Charles D. McDaniel James M. McHa ney Jr. Donna J. McHenry


r! Arkansas !,ro Bono I Partnership

Robert McHenry Joseph P. McKay Phyllis M. McKenzie J ames Bruce McMath Phillip McMath Marian McMullan John R. Mc ee David F. Menz Delbert Mickel Jessica Middleton Kara Mikles Lance R. Miller Stuart P. Miller Stan Miller David S. Mitchell Ark Monroe Edward O. Moody Kristi Moody Mickey Moon J effrey H. Moore Michael S. Moore W . Frank Morledge Paul D. Morri Lee J. Muldtow Bruce Munson Randy P. Murphy Elizabeth R. Murray Steven Napper Sheffield elson Charles R. Nestrud Richard Newland Brian Nichols James E. Nickels A. Wyckliff Nisbet Louis Nisenbaum Stephen B. Ni wanger W. Robert Nixon Walter W. Nixon N. M. Norton Kevin Odum Edwa rd Thomas Oglesby Robert L. Ost William D. Overstreet Christopher L. Palmer Christopher O. Parker Michael O. Parker Claudia Parks-Miller J arrod S. Parrish Dannell L Patrick J ohn Payne J ohn B. Peace

J ames R. Pender James H. Penick Dawn D. Peoples Kathryn Bennett Perkins Fred M. Perkins Constance Brown Phillips Melody H. Piazza Mike Pickens Jennifer R. Pierce Ray S. Pierce George Pike T. Christopher Pledger Nealon M. Pomtree Susan Dabbs Pomtrec W . Michael Powell Paul A. Prater Sarah Presson Charles C. Price Troy A. Price Scott D. Provencher Lyn P. Pruitt John E. Pruniski III Michael J ames Ptak J anet L Pulliam Joseph H. Purvis Steven W . Quattlebaum Bill Rahn Jolm W . Buddy Raines Richard L. Ramsay Tucker Raney Gordon S. Rather Carrold E. Ray Brian D. Reddick Jason D. Reed Ken Reeves Robert Ridgeway Steve Riggs Robert Riley Deborah Truby Riordan Chet Roberts Kathryn W. Roberts James D. Robertso n Nona M. Robinso n Richard A. Roderick Gary B. Rogers James Maurice Rogers Thomas N. Rose Brian Rosenthal Melissa Ross Roger D. Rowe Beverly A. Rowlett


Pro BODO fArkansas Partnership

Friends Less than $350 Boone/Newton Bar Assoc. WMJackson Butt III Carl Circa (Law Student) Lindsey Coates Christy Conrad Scott Covington Kenneth Cowan J. Scott Davidson Steve Davis J ack Deacon Frank DiMaggio Kathleen DiMaggio Phillip B. Farris

J anet Flaccus Robert Ford Daniel G ilbrea th E.c. Gilbreath John Greenhaw Barbara Halsey Jason M. Hatfield Jennifer Hendren Gail Inman-Campbell RandolphJ ackson Bucky J ones Eugene E. Kelley Steve Lisle

Diane Mackey Chad Oldham Richard Richards Jim Shavers Family Trust Ken Shemin Jim Short Douglas O. Smith Patricia Virning Eugene A. WahlJr. EdcUe Walker J r. H. G. Watkins III

ContributingJudges Han. Ellen B. Brantley Han. Sam 1. Bratton Hon. Robert L Brown Han. Audrey R. Evans Han. Victor A. Fleming Han. Tom Glaze Han. Rita W. Gruber

Han. Wayne A. Gruber Han. J ohn Norman Harkey Hon. Roger B. Harrod Han. Larry R.J ennings Han. David J. Manley Ha n. Robin Mays Han. Mary Spencer McGowan

Hon.J ames M. Moody Hon.J ay Moody Han. W illard Proctor Han. H. Vann Smith Han. Larry D. Vaught Han. Susan Webber Wright Han. David Young

Each year the Winter Edition of The Arkansas Lawyer contains this insert on Pro Bono activities around the state. This year, based on a recommendation of the Access to Justice Commis sion, Model Rule 6.1 has been changed to include mandatory reporting, setting an aspirational goal of 50 hours per year and e stablishing the contribution level at $400. The attorneys, corporations, judges and law students you see here have made their commitments to expanding access to justice for low income Arkansans and we thank them. May these role models encourage even more participants to volunteer in 2007.

Arkansas Pro Bono PartnershipTM Equal Access to Justice Panel A project ojL'gal Aid ojArkall,a~ Inc. Baxter Benton Boone Carroll Clay Craighead Cleburne Crittenden Cross Fulton Green Independence lzard Jackson l awrence Lee Madison Marion Mississippi Monroe Newton Philli ps Poinsett Randolph St. Francis Searcy Sharp Stone Van Buren Washington Woodruff Susan Purtle, Pro Bono Manager/Senior Attorney


River Valley Volunteer Attorney Project Conway


A project of til, Ccmer/or Arlwnsas Legal Services Franklin Johnson Logan Pope Scott Sebastian J anet B. Dyer, Managi ng Attorney/Pro Bono Manager


479.785.5211 jdyer速

VOCALS VohmteerOrgwlizatioll of thcCcllterfor Ariwllsas Legal Services

Arkansas Ashley Bradley Calhoun Chicot Clark Cleveland Columbia Dallas Desha Drew Faulkner Garland Grant Hempstead Hot Spring Howard Jefferson Lafayette Lincoln Little River lonoke Miller Montgomery Nevada Ouachita Perry Pike Polk Prairie Pulaski Saline Sevier Union W hite Angie Moore, Pro Bono Coordinator 501.376.3423 amoore速arlegalsenice .org

AVLE Arkal1sas \Iolunteer Lawyersforche Elderly

Provides pro bono service for the elderly in all Arkansas counties except --Clark Faulkner Garland Hot Spring Jefferson lonoke Pulaski Saline Catherine Ed wards, Director 501.376.9263

Fo r m o re infor m a ti o n o r t o reg iste r:

www .a rl e g a l s ervic e s . org o r m a il to

Arkan s a s Pro Bono Partn e r s hip 30 3 W es t C apit o l A v e nue / Suite 200 Littl e R oc k, AR 72201

Herbert C. Rule Rick Runnells Bradley Runyon J. Shepard Russell Blake Spencer Rutherford David]. Sachar Jerry Sailings Sandra Sanders James M. Saxton Ginger Stuart Schafer Charles L Schlumberger Paul]. Schroeder J ames Gerard Schulze Isaac A. Scott John S. Selig Rick Sellars Frank B. Sewall Mark Sexton Robert S. Shafer Michael . Shannon Jason E. Sharp Linda D. Shepherd Scotty M. Shively Leigh Anne Shults Robert Shults Steven Shults Clay E. Simpson Harold H. Simpson James M. Simpson Lynn Skinner Theodore C. Skokos David Alan Smith Derrick Smith Ellen Owens Smith H. Mayo Smith James E. Smith Laura Hensley Smith Michael G. Smith Richard A. Smith Robert D. Smith Stan D. Smith Shayne Smith Emily Sneddon Ryan Solomon Carla Gunnels Spainhour C. Timothy Spainhour Gary N. Speed Hugh F. Spinks John William Spivey Thomas B. Staley Carter C. Stein


Pro BODO flI Arkansas Partnership

David W . Sterling Amy Lee Stewart Clayborne S. Stone Thomas S. Stone O. H. Storey Richard Shane Strabala Scott M. Strauss Steven Kent Strickland J runes Michael Stuart William H. Sutton Thomas J . Swearingen Meridith Switzer Thomas Tarpley Jay T. Taylor Marcella]. Taylor Gregory D. Taylor Lee Thalheimer Albert J. Thomas Jeffrey H. Thomas Peter O. Thomas Nick Thompson Tami C Threet Bruce B. Tidwell James W. Tilley John R. Tisdale Geoffrey B. Treece Walls Trimble Scott H. Tucker Kimberly Wood Tucker Clyde T. Turner LowellJoseph Underwood Frederick S. Ursery James R. Van Dover Michael P. Vanderford Brian A. Vandiver Gary Vangilder Thomas C Vaughan J . Andrew Vines Caley B. Vo William A. Waddell Guy Alton Wade Byron]. Walker James R. Wallace Seth Ward John Dewey Watson Richard N. Watts Jeffrey A. W eber Morgan E. Welch K. Coleman Westbrook Jennifer L W ethington Frederick S. W etzel

Bud B. Whetstone Elisa Masterson White Judy Robinson Wilber Gordon M. Wilbourn A. Gene Williams David H. Williams David L Williams Richard A. Williams Stephen P. Williams Thomas G. Williams W . Jackson Williams David D. Wilson Perry L Wilson Robert M. W ilson Kyle R.Wilson Patrick D. Wilson Laura G. Wiltshire Rebecca H . Winburn Carolyn B. Witherspoon Amanda Wofford Jeffrey D. Wood Wendy S. Wood William H. L Woodyard Michael Kelly Wooldridge Carol Worley Dean L Worley Michael Lee Wright Walter G. Wright Jane M. Yocum DanC Young Regina A. Young

"I will not reject, from any consideration personal to myself, the cause of the impoverished, the defenseless, or the oppressed." - The Arkansas Attorney's Oath

Arkansas Pro Bono Partnership â&#x201E;˘ M I 1\1 B IRS II I I' 0 I' I I ()





in which 'ou will acce t cases.

Count 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0




Arkansas Ashley Baxter Benton Boone

Bradley Calhoun Carroll Chi cot Clark Clay Cleburne Cleveland Columbia Conway Craighead Crawford Crittenden Cross

0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0

Dallas Desha Drew Faulkner Franklin Fulton Garland Grant Greene tempstead or Spring Howard 1ndependence Iz rd Jaokson Jefferson Jo son Lafa en:e nee

0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0

lincoln little River Logan Lonoke Madison Marion Millcr Mississippi Monroe Montgomery

Nevada Newton Ouachita Perry Phillips Pike Poin etr Polk

0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0


Prairie, Pulaski Randolph St. Francis Salmc Scotr Searcy Sebastian Sevier Sharp Stone Union VanBuren

Washington White W oodruff


B IRS H I I' 0 I' I I () J'\ B

I hereby join the Pro Bono partnership. In lieu of accepting referrals, I agree to make a tax-deductible contribution in the amount of $400 to help provide free legal services to low income Arkansans who cannot afford an attorney in civil cases.

Enclosed ill my checl< made payable to: Cweer for Arlwllsas Legal Servim for


o VOCALS D River Valley Voltllliccr Attonley Projca(s)

o Legal Aid of Arhallsas for Equal Access To ]llstice Panel o Ar/wllsas Volunteer Lawyers for the Elderly - A U Signature of Attorney

Your Governing Body at Work The Board of Governors of the Arkansas Bar Association is invested with the authority to conduct the business and management of the Association. The House of Delegates is the Association's policy making body. The Board is composed of seven officers, eighteen governors elected from districts, three appointed at-large governors, and seven Ii.aison non-voting members. Six new governors are elected each year, and one of the at-large gov-

ernors is appointed each year. Candidates for the Board of Governors must have served at least one year in the House of Delegates or must have been an Association member for seven years by the time of joining the Board.

Association Officers Chair, Board of Governors Cindy Thyer, Jonesboro

Secretary-Treasurer William A. Martin, North Little Rock

President James D. Sprott, Harrison

Parliamentarian J. Leon Johnson, Little Rock

President-Elect Richard L. Ramsay, Little Rock

Chair, Young Lawyers Section Micnelle H. Cauley, Little Rock

Immediate Past President A. Glenn Vasser, Prescott

Governors by District I-BG 2-BG 3-BG 4-BG 5-BG 6-BG 7-BG 8-BG 9-BG IO-BG Il-BG

Tom D. Womack, Jonesboro Jim Pat Flowers, Marianna Anthony A. Hilliard, Pine Bluff Chalk S. Mitchell, Helena Todd M. Turner, Arkadelphia John T. Vines, Hot Springs Sean T. Keith, Rogers Charles L. Harwell, Springdale Donna C. Pettus, Fayetteville Danny M. Rasmussen , Conway Eddie H. Walker, Jr., Fort Smith

12-BG John R. Peel, Russellville 13-BG David M. Fuqua, Little Rock 14-BG Thomas M. Carpenter, Little Rock 15-BG Jim L. Julian, Little Rock 16-BG Harry A. Light, Little Rock 17 -BG Frank B. Sewall, Little Rock 18-BG William O. James, Jr., Little Rock At Large Brian H. Ratcliff, EI Dorado At Large Niki T. Cung, Fayetteville At Large Colette D . Honorable, Little Rock

Liaison Non-Voting Members President-Elect, Arkansas Judicial Council Judge Rice VanAusdall, Harrisburg

Chair, Continuing Legal Education Committee Phyllis M . McKenzie, Little Rock

President-Elect, Arkansas District Judges Council Judge John Finley, Ashdown

Executive Director, Arkansas Bar Association Don Hollingsworth, Little Rock

Delegate to the American Bar Association Carolyn B. Witherspoon, Little Rock

Lobbyist, Arkansas Bar Association Jack A. McNulty, Pine Bluff

President, Arkansas Bar Foundation Randolph C. Jackson, Fort Smith Vol. 42 No. l!Winter 2007 The Arkansas lm'Ycr





msfros t .co m


50 1.376.9241

Th3nk You to the 2006 Volunteer CLE Spe3kers 3nd Progr3m PI3nners C. Michael Daily

Karen Sharp Halbert

Jack T. Lassiter

Angela Schnuerle

Freclye Long Alford

Thomas A. Daily

H. Wi lliam AJlen

C hri stine J. Daugherty

Milas H. Hale III Frank S. Hamlin

John T. "Jack" Lavey Missy Leflar Harry A. Light Alice F. Liglde

Judge Bobby E. Sheph.,d Leigh Anne Shul ts

Graham F. Sloan

H eath A. Abshure

James M . Simpson, Jr.

Mark H. Allison

Cecil Glen Davis

C hi ef Justice Jim Hannah

Judge Ga ry M. Arnold

JaNan A. Davis


Judge Morris S. Arnold

John A. "Jack" Davis

Manha M. Harriman

Stark Ligon

Joyce B. Babin

Beth M. Deere

D errick W. Smith


Rayman B. Harvey Richard F. Hatfield

Ca rol L. Lincoln

James A. Badami

Judge John R. Lineberger

Eliz.1bcrh T. Smith

Judge Harry F. Barnes

Jack W. Dickerson

William D. Haughr

James H. Longino

James E. Smith

Melody Peacock Barnerr

Joseph A. Dipierro

Judge Lavenski R. Sm ith

Joel M. Di Pippa

Judy S. Hen,), Raben L. "Skipn Henry III

Rebecca L. Lyn n

W. Christopher Barrier

Bruce D. Maloch

Stephen C. Smith

Theresa Beiner

Dean John M.A. DiPippa

Daniel L. HerringtOn

Leon Marks

DonaJd M. Spears

Judge Kath leen Bell Stanley M. "Jack" Bell Garland W. Binns Donald E. Bishop Anrhony W Black Abraham W. Bogoslavsky

AJlen C. Dobson

Paul E. Herrod

D. Price Marshall , Jr.

David W. Sterling

J. C hades Dougherty Missy Duke Jane W Duke Judge Xollie Dunca n Davis Dury

Sam T Heuer

William A. Martin

Griffin J. Stockley

Charles R. Hicks

Judge Mary S. McGowan

Lurhe r O. Sutter

Amhony A 'Tony" Hillian:l I(, Ton, J<- Hodg<

Judge Richard D. Taylor

Mark W Hodge

J. Cliff McKinney Kaye H. McLeod D. Malcolm McNair, Jr.

David A. Boling

Treeca J. Dyer

Denise R. Hoggard

Jack A. McNul ty

Rex M. Terry

Stanley V. Bond

Jeffrey El lis

Theodore Holder

Robert F. Thompson III

Will Bond

John R. Elrod Edie R. Ervin

Kelly M. McQueen Judge James G. Mixon

Judge Leon Holmes

Raymond E. Bornhoft

J. Deniso n

r. H arrelson

Cyril Holl ingSYIo rth

John M. Scon

Judge Dennis C. Sutterfield Mary Ellen Ternes

Judge Cindy Thyer Andree L. Trosclair

L. Elizabeth Bowles

Judge Aud rey R. Evans

Robert H. Holmes

Judge Ellen B. Brantley Dean Howard W. Brill Brandon L. Brown

James David Ferguson

Colene D. Honorable

Judge James M. Moody Harry Truman Moore John E. Moore

Farrah L. Fielder

Robert E. Hornberger

Rodney P. Moore

Cathy Underwood

Hugh A. Finkelstein

D. Michael Huckabay

Charles A. Morgan

Joe Volpe

JuS[ice Robert L. Brown

Janet Flaccus

Rosalind M. Mouser

Ralph W. Waddell

Senato r Dale Bumpers

Judge Vi c Fleming

Judges James S. HUruoll, Jr. Tim Humphries

Dean Cynthia E. Nance

Jim E. Burnen

Judge John F. Forster, Jr.

JuS[ice Annabelle C. Imber

T homas M. Carpenter

Lynn Foster

SCOtt A. Irby

Michelle H. Cauley

Amy Freedman

Jill R. Jacoway

Judge Oily Neal Raben A. Newcomb Phillip Norvel l

John C. Wade Jack Wagoner III Eddie H. Walker, J r. John J. Wadcins

Vince O. Chad ick

G. Spence Fricke

Raben K. Jackson

Charles C. Owen

John Dewey Watson

Penny C. Choate

Bonnie J. Johnson

Lance Owens

Morgan E. "Chipn Welch

E. B. "Chip" Chiles IV

R. Ray Fulmer II David M. Fuqua

David E. Johnson

Nichol as H. Parton

Co leman Westbrook, Jr.

Zane A. Chrisman

Colene Gaston

Judge Kirk Johnso n

Richa rd J. PeirL

Bud B. WhetStone

Wi lliam M. Clark, Jr.

D. AJlan Gates

J. Leo n Johnson

G. Alan Perkins

David J. Whitaker

Charles W. Tucker Lonnie C. Turner

Carolyn J. Clegg

Timothy G. Gauger

Paul ete Locke Joh nson

Donna C. Pettus

El isa C. White

Cathlee n V. Compto n


Carlto n D. Jones

E. Lamar Pettus

Christopher "Kit" Wi ll iams

Judge Vicki S. Cook Barry E. Coplin

Nancie M. Givens

David L. Jones

Crystal Lyn Phelps

D. Kenyon Wi lliams, Jr.

Ti na R. Green

Judge Henry L. Jones, Jr.

Harrison M. Pittman

Elana C. Wi lls

Sarah M. Ca rton

Laura D. Grimes

Jami e Hu ffman Jones

T heresa L Pockrus

Judge William R Wilson, Jr. G-uulyn B. With""poon Shawn A Womack Tom D. Womack

D. Gi ngerich

Ray F. Cox

E. AJl en Go rdon

Jim L Julian

AuStin Porrer

Michael E. Crawley, Jr.

Kathy WI. Goss

Phil ip E. Kaplan

David M. Powell

J. David C risp

Ken Go uld

Jerome Kearney

Jeff R. Priebe

Jill"'" Brncy ").6." Croo;, Jr. Grego')' L Crow

Judge Joe E. Griffin

Trent C. Keisl ing

Sarah M. Priebe

Rho nda Wood

Timothy W. Grooms

Ch ristopher R. Kel ley

Judge Willard Procto r

Andrea G. Woods

Judge Susan Webbcr Wright Dan C. Young

Kenneth V. Crow

Dawn Guthrie

Lacy J. Kennedy

Jeff Puryear

Hardy W. Croxton , Jr.

Seth Hai nes

Mark R. Kill enbeck

Carrol L. Roddy

H. E. "Bud " Cummins

Alan Harrel

Theodo re C. Lamb

Brian Rosenthal

Dan na Jo YOllll g

Don N. C urdie

Morril H. Harriman

Judge Michael R. Landers

Mary M. \Vhi te Schneider

Judge H. David Young

Stephen L. Curry

Mark A. Hagemeier

Dana M. Landrum

Susa n A. Schneider

H. Wayne Young

Vol. 42 No. I/ Winter 2007

The Arbnsas lawyer


Arkansas Supreme Court Historical Socicly

Noteworthy Arkansas Jurists: From the Trial Bench to the Governor's Office By Logan Scott Stafford

Th e last issue of The Arkowos Lawycr discussed supreme court justices who have

served as govern or. The trial be nch of Arkansas has also produced its share of the nate's chief executives. Although several ea rly governors se rved on the territorial COUrt bench , rh e first state trial judge to becom e governor was Elisha Baxter. Baxter read law with a Batesville a[(omey and was admitted to practi ce in 1856. During the C ivil War Baxtcr tried co remain neutral but evenruaHy cast his lot with the Union. Wh en a pro-Union government was form ed in Little Rock during rhe sprin g of 1864, Baxte r was elected (Q the supreme coun, bur befo re he could take his seat, th e legi sla(Ure nam ed him ro represent Arkansas in the United States Senate. H e traveled co Washingro n. D .C., but the senate refused to seat him. After th e war ended Baxter join ed the Republi can Party, which gained po litical co ntrol of the stare fo ll owing the adoptio n of the Consti tutio n of 1868. In 1868 Republic.'l11 Governo r Powell C layron appointed Bax te r judge o f th e Th ird Judicial C ircui, (Bax ,e r, Fulron , Izard, Sharp, Sco ne, and Independence Co unties). In rhe 1872 general el ectio n th e regular Republi can Party nominated Baxter fo r governo r, w hile a refo rm wing o f th e party no minated Joseph Brooks. Th e D emocratic Pa rty decided nO[ ro run a gubern arorial candidate. In an el ection marred by numerous irregula riti es, Baxter narrowly defeated Broo ks. Broo ks co ntested the electio n , first in the courrs, the n in an armed co nflict. Th e Brooks- Baxter War e nded in May 1874 after Pres ident G ra nt sided with Baxter. Durin g the war's d eno uement Dem ocrats proposed a new state constitution, which voters approved at an election in O ctober 1874 . At the same election voters repl aced Baxter with D em oc rat Au gustus H . Ga rland . Te n years after Bax ter left offi ce, another 28 TIl e Arka nsas lcl\\,ycr


circuit courr judge was el ected govern or. James H. Berry grew up in CarrolJ Coun ty a nd lost a leg whil e se rvin g with the C onfederate Arm y. After the war he read law a nd was admi tted ro the ba r in 1866. H e briefl y practiced law in Ca rrollto n, wh ich was then the county seat o f Ca rroll C oun ty, befo re moving to Bentonville. In 1878 voters elected Berry judge of th e Fo urrh Judi cial C ircui t, wh ich at that time included rhe co unti es of Be nton , Car roll , Boo ne, Mario n , Washington , Madiso n, Newton , a nd Searcy. In 1882 Berry resigned his positio n and successfull y ran for gove rno r as a Democ rat. After a single term in offi ce, Berry declined to seek a second term. In 1885 the General Assembly elected Berry [Q the United States Senate, where he served until his defea, in 1906 by Jeff Davis, [h e state's popula r governor. During the twentieth century fi ve fo rm er o r sitting [riaJ judges we re elected to the o ffi ce o f gove rn o r. T he first was Jo hn Sebasti an Lirrl e. I.irrle w a~ ho rn in Sebas tia n Co un ty and admined to rhe ba r in 1873 after reading law. Beginn ing in 1877 he served three terms as p rosecuting atto rney fo r rh e Twel ve Judicial C ircuit (Crawfo rd , Loga n, Sebastia n, and Scort C oumies), and in 1886 he was elected judge of the sa me judicial circuit. In 1894 vorers e1ecced him to the U nited States House of Represe ntatives, and he spent th e nex t rwel ve years in WashingtOn , D .C. When Jeff D av is, th e sta te's three- term gove rn or, decided to seek the POSt o f U ni ted States Senator in 1906, he backed Li ttl e as hi s successo r. With Davis' help, Little was named rhe D emocra tic nom inee to r governor, a nd he eas il y defea red his Republican oppo nent in the 1906 ge ne ral election . A few days after his inauguration on January 18, 1907, Lirtle suffe red a nervous breakdown and left the state fo r medi cal rrearment. Beca use rh e co nsri[Uti o nal a me ndm e nt c rearing th e

office o f lieute na nt gove rnor was not adopred until 19 13, th e duties of th e governo r were discha rged by the pres ident pro rem pore of cll e senate durin g tile remainder of Little's £\\'O year term . • (The nex t issue will di scuss othe r tri al court judges who went on to serve as governor. ) Sou rce: The G ove rnors of Arkan sas Essay:, in Polit ica l Biogra ph y, Seco nd Edition . Edired by T imo thy P. D onovan, Willia m B. Gatewood , Jr., and Jeannie M. Whayne. U of A Press, Fayerrevi lle, 199 5. This a rticle is provided by tb e Arkansas Supre me C ourt Histo ri cal Society, Inc. For more info rmation on the Society contact Rod Mill er, A rka nsas Supre me Co un Histo rical Society, Justice Building, Suire 1500, 62 5 Marshall Street, Lird e Rock, Arkansas 7220 I; Email: rod.miUe,; Ph o ne: 501 -682-6879.

Correction: An a rticle e ntitled "S upreme Co u rt Justices W ho Also Se rved as Governo r" thar appea red in the last issue of The A rkansas Lawyer me ntion ed rhe 1966 general election for governor in which fo rmer Justi ce Jim Johnso n was defeated by W inth ro p Rockefell er. The a rricle fai led to state that Johnson 's chi ef oppone nt in the 1966 Democra ri c primary was a n O£ her sup rem e coun justice. J . Fran k H olt was elected to th e Supreme Court in 1962. In 1966 Justi ces H o lt a nd Johnson both res igned their pos itio ns on the bench and a nn o un ced their ca ndida cy fo r th e D em ocratic gubernatorial nomination. T he two ex-justices were the top voce gen e rs in the prefe rential prim a ry, and John son narrowly d efea ted H olt in the run -off election . H o lr was reel ected to th e hi gh court in 1968 and served as justice until his de.nil in 1983.


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Review: Titrn Away Thy Son - Little Rock, the Crisis that Shocked the Nation by Elizabeth Jacoway, Free Press, $30.00 by Vic Fleming

When I tell northerners where I'm fro m, so meone always says, "1957 ... Cenrral High ... crisis." For better or wo rse, in those three terms lie what th e world has been taught about Little Rock. To coincide with the 50-year anniversary of this defining event in Arkansas history, Newporc's Eli zabeth Jacoway has written Tum Away Thy Son. This native daughter's schol arly wo rk is a must-read for those who wam to understand the histO ry of public educatio n in Arkansas. Using powerful yct meas ured prose, Little Rock native Jacoway invites readers into the lives of those of whom she writes. Starting early. Of 15-year-old Elizabeth Eckford, on th e day in 1957 that she tri ed to stan her junior yea r of rugh school. we read: When the frightened child finally arrived at th e midpoint of the campus and tried to pass between two soldiers, they raised their guns and barred her entry. Her knees now shaki ng. Elizabeth turned to face the mob, hoping to fi nd a friendly or co mpass ionate soul. One greyhaired woman seem ed to have a kind ly manner, bu t when th e black girl looked at her beseechingly, the woman spat in her face. And comintting Inu. Addressing a May 5, 1959, Little Rock School Board meeting, Jacoway notes: In the men 's room before th e mee ting, Ter rell Powell w id Everett Tucker that Ed 1. McKin ley had asked him nOt fO rehire fony- four teachers and administrators, but he was unwilling to follow McKi nley's recommendation. He said McKinley had offered to take him out to the Governor's Mansion, but ... he dedined.

How did Governor Orval Faubus come to order that th e Little Rock Ni ne be denied entrance to Ce ntral? For [WO years after Brown v. Board of Education I, vario us factions had wo rked on the issue of th e century: whether (and, if so, how) to end the era of public school segregation in Arkansas? Did Faubus "manufacture" the Ce ntral High crisis by intentionally arousing divisive factions? Many (including the late Gov. Sid McMath and Judge Henry Woods) argued that Faubus wanred to rake a stand that could be called (by him) preserving the peace, but that would look (to a segregationist electorate) like prese rving th e "Southern way of life." The latter was helpfu l, if not crucial, for Faubus to ge t re-elected to the third of his six terms as Governor. Faubus's critics say that had he not created the crisis, integration would have occllrred peacefully. Faubus went to his grave denying these charges. In 1957 he said that if he didn't do what he ultimatel y d id, Jim Johnson would win th e Governor's offi ce in 1958, thus settin g Arkansas back significantly. Jacoway posits that Forre.n Rozzell, executi ve secretary of the Arkansas Educa ti on Association in 1957, "got it about ri ght" when he explained that LRSD officials th rew Faubus "a curveball"- teUing him priva tely that admitting black students to Central posed a grea t potential for vio lence, then testi fyi ng in Court [hat no vio lence was expected. According to Rozzell , Faub us "reacted without calculation." Differently fro m how many have described him, the 1957 Faubus comes across as frail (suffering from an ulcer and lack of sleep), insecure (sensitive to being a rural outsider), and a bit bumbling {known for smiling and nodding when people spo ke, leadin g them co believe, wrongly often, that he agreed with them}. Jacoway writes of a

governor who did not want to appear weak; who, above all, did not want viole nceespeciall y if someo ne might later point at him and say, "You could have prevemed this." And yet, this same Faubus used the word "political" a lot: He took "political cove r," tried to avo id "political suicide," etc., thus facilitating the rap that he manu factured me crisis primarily with his fut ure in mind. Jacoway's take is that Faubus was manipulated by Johnson and others, as he himself so ught not to appear foo lish-with the ironic result that he becam e a leader of a group that he'd tried not to be a part of. T he 1957 Faubus "backed into the arms of th e segregationistSi in order to avo id looki ng like a fool, he stayed there." Where he became the 1958 Faubus, wi th approval rati ngs so high that the General Asse mbly armed him with legislation that he used to run , dodge and otherwise evade the mandate of th e Supreme Court in Brown II- including the power, ultimately exercised, to close Little Rock's public high schools (w ith the exception of the football teams). Sadly, he was cheered throughout the South by a racist energy so intense that it is frightening to contemplate eve n to this day. Jacoway's work is well-paced and expe rtly written. Ir's quite readable, even th e 100 pages of end notes. Her balanced paragraphs and se ntences are accenruated by deft managem ent of the language, as she juggles importanr co nce pts, often presenting the written equivalenr of a spli t screen. Thus, Book Review cont inued on page 47 VIC Fleming IS a district Judge for the City of Little Rock He also teaches Law and Literature at the William H Bowen School of Law

Vol. 42 No. I/Winlcr 2007

TIle Arkansas lawyer



DisciplinafY Actions

Fbutl actions from October 1, 2 006, through D ecember 3 1, 2006, by the Committee on Professional Conduct. Summaries p repared by the Office of Professional COllduct. Full text docllments are available on-line at IJ ttp:l/coU.Tts. state.or. uslcollrtslcpc. bhnL [Note: ftModer Rules refers to tbe Rules of Professional Conduct as tbey existed ;11 A rknllSiU prior to M ny I, 2005. ftArknnsasl> Rules refers to tile Rules as they exist in A rkmlSllS from M ay J, 2005.j

for $1,163, had the name of the Piggort Hospiral on it but it had been negotiared without noti ce or payment to the Hospital. Ms. Maddox Cook failed to pay her 2004 law license fee until June 4, 2004, meaning she setded the Whitlock case whjle in suspended status. She also failed to pay her 2005 and 2006 license fees. Ms. MaddoxCook was served by privare process server at her home in Blytheville on June 23, 2006, and failed ro file a timely response, extinguishing her right to request a pub lic hearing if she disagreed with the result of the Panel ballot vote.

SUSPENSION: PATRIC IA J. MADDOX-COOK, Bar No. 92064, of Blyth eville, Arkansas, had her

privilege to practice law suspended for eighteen (18) months by Co mminee Findings & Order filed November I , 2006, on a complailH fil ed by Sarah Howell (now Guite) in Case No. CPC 2006-053, for violation of Model Rules I. I 5 (a), 1.15 (b), 3.4(c), 5.5(a), 8.1 (b), 8.4(c), and 8.4(d). Ms. Maddox-Cook represenrcd Mr. Whitlock in a 2001 personal injury claim. where Guire's late husband , Dr. Howell. provided chiropractic ca re for Whitlock totaling $3,905. Ms. Maddox-Cook wrote Dr. H owell on Decem ber 12, 200 I , agreeing [0 protect his bill in any senlement, Dr. Howell di ed in March 2003 and Ms. Guite was appointed personal representative of his probate es tate in C lay Cou nry. Ms. Maddox-Cook fi led suit for Whitlock in federal co un in Jonesboro in December 2003, and setcled Whitlock's claims in May 2004 for almost $85,000. Ms. MaddoxCook did nO[ inform Ms. Guite or the Howell Estate of the settlement. When Ms. Guite lea rn ed of me settlement, she COntaCted Ms. Maddox-Cook, who told her she need ed ro open probate and when that was cleared up, Ms. Maddox-Cook wou ld pay over the funds . No payment had been made. The Office of Professional Conduct (O PC) wrote Ms. Maddox-Cook several rimes asking for information on this marter, and received no reply or cooperatjon from her. OPC conracted th e defense attorney and obtained co pies of the setriemenr checks. It 32 The Arkansas la\'Ycr

was then learned that one settlement check,

HORACEA. WALKER, Bar No. 82169, of Little Rock, Arkansas, had his privilege to practice law suspe nded for three (3) months by Co mmirtee Co nse nt Findings & Order filed November I , 2006, on a comp lainr filed by Dr. Rodn ey F. Williams in Case No. C PC 2005-169, for violation of Model Rules 1.2(a), 1.5(c), 1.15(a), 1.15(b), and 8.1 (b). In 2003-04 Mr. Walker represented seven clients (o ne of whom was Mr. Walker) in perso nal-inj ury matters where they were also treated by Dr. Williams, a Little Rock ch iropractor. Dr. Will iams supp lied co pies of medical repons and accoum sta rements to Mr. Walker for his use in setding mese claims, all of which were settled . Mr. Walker fai led to pay the accounts at Dr. Williams' office wim funds he withheld for that purpose from the client settlements. Mr. Walker admined he did not deposit all settiemeIHs in his trust accoulH. The rotal amount owed on all accounts was $9,816.00. Mr. Walker's trUSt account balance fell to $430.00 on October 26, 2004, (possibly as a result of a questionable IRS levy) after the last of the setd emenrs. Dr. WilJiams fil ed his com-

WOODSON D. WALKER, Bar No. 76135 , of Little Rock, Arka nsas, had his privilege to practice law suspended for three (3) months by Conllninee Findings & Order filed December 29, 2006, on â&#x20AC;˘ complaint fi led by Melvin Robinson in Case No. CPC 2005-140, for violation of Model Rules 1.3, 1.4(a), 1.15(a), and 1.15(b). Melvin Robinson hired the law firm of Walker & Du nklin , through Garfield Sloodman. an associate attOrney in the firm , in June 2002, on a personal injury claim. Sioodman settled the claim for $9.500 in November 2002, ran tile settlement through Walker's trust accounr, since Bloodmall had no separate truSt account, mad e distribution , and left $1,195 in the Walker truSt accounr to pay third pa rry provider Pain Care while the diem worked on resolving the d eb t wim Pain Care. Mr. Walker's law license was suspended in April 2003 for one year, but he still remain s on suspension, nO( having app lied yet for reinstatement. Mr. Bloodman left th e firm in September 2003. In October 2003, Mr. Robinso n closed a loan on his house and paid off Pain Care. He then tried to co ntact Wa lker and Bloodm.n about the $1,195. Bloodman wrote Walker in June 2004 that the funds were left in Walker's trust accoum when Bloodman left Walker's firm. Robin so n filed an ethi cs compla int against Walker in Seprember 2004. On October 21, 2004 , after being contacted about the matter by the Office of Professional Conduct, Walker fina ll y se nt a cashier's check for th e $1,195 to Bloodman, who sem it on to Robinson. Walker respo nded that he was unaware until late sum mer 2004 that Sioodman had placed the Robinson funds in Walker's trust accoum. Walker also admirred that his truSt account balance fell below the Robinson amoum that should have been maintained therein ($1,195), after Bloodman left th e firm in September 2003.

plailH in mid-August 2005. and Mr. Walker


was comacted by the office of Professional Co nduct (OPC) about the marter. Mr. Walker sem cashier's checks to Dr. Williams

G. B. CO LVlN, III , Bar No. 660 14, of Monticello, Arkansas , was reprim:mded hy

on November 14 ,2005, paying all accoums in full from so me funding so urce. Mr.

Comminee Consent Findings & Order filed D ece mber 18,2006, on a Per Curiam Order

Walker failed ro provide OPC with documems requested in the course of the investi-

referral from the Arkansas Supreme Court in the appeal of Roben Earl Thompson v.

gation. Mr. Walker's cliem Jackson was nor provided a settl emem sheet for her funds.

State, No. C R-06- 101 4, in Case No. CPC 2006-132, for violation of Arkansas Rules

L3wycr Disciplin3ry Actions 1.1, 1.3, and 8.4(d). T he Court referred Mr. Colvin to the CO lllmirrce in an Order graming hi s Motion for Rule on rhe Clerk. Mr. Colvi n fi led a Notice of Appeal fo r Mr. Thompson wh ich was not timely, pursuant ro Rul e 2 of the Rules of Appellate Procedure - C rim inal. Mr. Colvin acknowledged responsibi li ty and fault in the Motion fo r Rule on rhe C lerk, admin ing there was negligence on his pan in not gcning rhe Nor ice of Appea l fi led o n tim e. He exp lained that he was home caking care of his wife, who had broken her leg. when the deadline for fi ling the appeal passed. In additio n, Mr. Colvin had spent the first (en to fifteen days after the conviction 3ncmpring [0 find someon e [Q rep lace him as appellate cou nsel because of his heavy caseload and number of death penalty cases pending at the time but was unsuccessful in doing so. WALTER CRAIG LAMBERT, Bar No. 87 100, of Little Rock, Arkansas, was repri mand ed by Commictee Co nsclH Findings & Orde r filed October 17, 2006, in the Rule 37 proceeding of Ledel l Lee in Case No. CPC 2006-097, on info rmation obtained from the Arkansas Sup reme Court file in Case No. CR99- 111 6, Ledell Lee v. State of Arkansas, for violations of Model Rules 1.1 . 1.1 6(a)(2), and 8.4(d). On June 29, 2006, the Arkansas Supreme Court recalled its mandate that affirm ed denial of Ledell Lee's request for post-conviction relief in his death-sentence case, and remand ed his case to the circuit cou rt for a new posr-conviction proceeding. Mr. Lambe rt had ea rlier filed a Motion to W ithdraw with the United Srares District Co urt - Eastern District of Arkansas, in Mr. Lee's case, requ es ting that he be aHowed to withdraw based on the admission that he was impaired during Lee's eve n earlier sta te Rule 37 hearing and had fail ed to render adequate represe ntation there to Mr. Lee.

v. State, No. C R-06-506, in Case No. C PC 2006-070, fo r vio lation of Model Rules 1. 1, 1.2(a), 1.3, 3.4(c) and 8.4(d). The CO Urt referred Mr. Moon to th e Commirree in an unpublished Per C uriam Opinion issued June I, 2006, based upon his fai lu re to pursue the appeal for Paul Barron, Sr., after Mr. Moon filed a rimely Nerice of Appeal o n M r. Barron's behalf in January 2002 from a criminal co nviction. Mr. Moon fai led to take any action to perfect the appeal for Mr. Barron , abandon in g hi s client and the appeal. At no time was Mr. Moon relieved of his obligation to perfect the appeal. Mr. Moon 's failure to perfect the appeal violated Arkansas Rule of Appel late Procedure 16. Four (4) years after the record was due to be filed with the Clerk of the Coun, M r. Barron filed a Motion for Rule o n the C lerk or in the al rernarive Motion for Leave ro File

was directed by the o urt to file a Petition for Writ of Certiora ri with in thirty (30) days of June I, 2006. In the Petition, Mr. Moon asserted that Mr. Barron failed to render any funds [Q pay the Co urt Reporter for the record at any time afte r [he Notice of Appeal was fi led. Mr. Moon also asserted that Mr. Barro n discharged Mr. Moon from represenri ng him. Mr. Moon denied failing in any duties [Q Mr. Barron. There was no explanarion in his Pet itio n by Mr. Moon of his fa ilure to seek ro be relieved from the represemation of Mr. Barron as is required pursuanr to Rule 16 of the Arkansas Rules of Appellate Procedure - C riminaL JAM ES BAXTER SHARP III , Bar No. 92 11 4. of Brinkley, Arkansas, was reprimanded by Committee Findin gs & Order filed O ctober 18,2006, on a complaint filed

a Belated Appeal, requesting that the Coun co mpel Mr. Moon to perfect the appeal. In the Per Curiam, the Court set o ut that it is well settled that under no circumstances mayan atto rn ey who has nO[ been reJi eved by the Court abandon an appeal. Mr. Moon

by Preston Earl Hedden in Case No. CPC 2006-045, fo r violation of Arkansas Rul es 8.4(c) and 8.4(d). Mr. Sharp represe nted Mr. Hedden's exspo use in a child supporr matter in Monroe County. An agreemem was read imo the

ELECTRICAL ACCIDENT S Paul D. Mixon, Ph.D. , P.E. Engineering Co nsultant 1'0. Box 3338 State U nive rsity, AR 72467 (870) 972-20 88 (870) 972-3948 FAX pmixo n @as paul _mixo n@' m •

Accident Investigation and Analys is

Co n tact Cases and E lectrocutions

Electrical Injuri es

Property a nd Equipment Damage

PH ILLIP A. MOON, Bar No. 84 109, of

Electrical Fires

Harriso n, Arkansas, was reprimanded and fined $500.00 by Co mmittee Findings & Order filed OctOber 3 1, 2006, on a Per C uriam Order referral from the Arkansas Sup reme Co urt in the appeal of Paul Barron

Safety Code Complia nce

Expert Wirness

Disputes Se tded

Vol. 42 No. I/ Winler 2007

n,eArkansas Lawyer


La\o\Yer Disciplinary Actions record befo re Judge Bell on Seprember 6, 2005, with an attorn ey's fee of $70.00 to be paid by Mr. Hedden, who was represented by David Carruth. The Agreed Decree was carried , :t.1legedJ y by Mr. Sharp. to the clerk's

offi ce and fi led, where it showed up with the $70.00 fee changed to a fee of $700.00. Mr. Carruth saw the change and asked fo r and go t an immedi ate hearing befo re Judge Bell. She recall ed seein g $70.00 when she Now with online scheduling!

approved the decree. W imesses were called . The hearing inquiry indicated Mr. Sharp as the most likely perso n to have al tered the decree after the judge signed ir. Mr. Sharp denied any alteration. H e claims the agreed fee was (0 have been $700.00, and that is WI; am ount he put in the blank in the Agreed Decree o ut in the courthouse hal lway. DAVID W. TALLEY, JR., Bar No. 82 155, of M agnoli a. Arkansas. was reprimanded and fined $ 1,000.00 by Co mmi ttee Findings & Order fil ed N ovember 28, 2006, o n a co mpl aint fil ed by C harles Burdine, Jr. in Case No. 2006-044, fo r vio latio n of Model Rules 1.1 , 3.3(a)(l), 3.3(a)(2), 3.4(c), 8.4(c), and 8.4(d). C harles







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INC 1501 North Unlver.;lty Ave., Pros pect Building, Suite 420, Little Rock , AR 72207 501-376-2121 1116 South Walton Blvd" Suite III, P.O . Box 1826, Bentonville. AR 72712 479-271 -2237 404 North Seventh Street, P.O . Box 8064. Fort Smith, AR 72902 479-783- 1776 State Line J>laza, Box 8030. Suite Six, Texarkana, AR 71854

870-772-0718 34 TIle Arkansas Lawyer

Burdine. Jr.'s late fa ther was a clienr of Mr. Talley, where seve ral wills we re prepared and executed prio r to Bu rdine, Sr.'s death on September 8, 2000. W. B. "Buste r" G uth rie, a former atto rney, and later pan -time pastor, who su rrend ered his Arkansas law license in 1983 as he stan ed to serve a prison se nrence for felon y theft of client funds, wo rked as a paralegal in Mr. Tall ey's office, and apparently befriended Bu rdine. Sr., whose will nam ed G uth rie as executo r witho ut bo nd. Mr. Tall ey kn ew of G uthrie's past. and he apparently allowed G uthrie to continu e to physicall y wo rk in his office U1uil Jan uary I , 2002, when th e Supreme Co un Rule abo ut such employment changed and G uthrie was requi red to move and wo rk off-s ite thereafter. Acco rding to both M r. Talley and G uthrie, much later when the truth came Out in M ay 2004, only G uthri e had access to the Estate bank account and documents o n the accoulH. Mr. Tal ley opened probate in September 2000, pro bated one of the wills, and served as counsel for G uthrie, the Executor, until bo th res igned in May 2004, when the truth abo ut G uthri e's perso nal use of es tate funds came o ut. Witho ut no ti ce or any co un approval. G uthri e gave Mr. Tall ey twO estate account c h ecks totaling $7,000. marked as bein g fo r "lega l fees," in December 2000 and January 200 I. G uthrie filed a fi rst acco untin g on Se ptember 12, 200 I, liStin g cas h in th e ba nk o f $2 1,726. 12, attorney's fees of $4,712. 18 owed, and no menti o n of rhe $7,000 in pay-

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Lawyer DisciplinJry Actions menrs to Mr. Talley fo r legal fees. A final

accQ ulHin g was filed by G uth rie on O ctober 23, 2002, listing cash in hand of $9,372.74, same amo unr of legal fees still owed , no mcmion o f the earlier payments to Mr. Talley, and it had a certificate of service signed by Talley. Bu rdine, Jr.'s an o rney. Mr. Pran, finally obtained the escare aCCO UIH bank records di rectly from the ban k in April 2004 and discovered the a CCQunr balance was o nly $61 7.68 as o f September 6,2001 , and the aCCOll l1[ was closed by G m h rie on O ctober 10. 2001. G mhrie had written a seri es of checks to himsel f to talin g $29,207.3 1 between January 8 and O ctober 10,2001 , which he later characterized as "loans" to himself, as evidenced by copies of pro missory nO(cs he later produ ced . No o ne al legedly knew of G uthrie's loans [ 0 himself umi l April 2004, and his "explanatio n" [0 Mr. Tall ey came sho rrl y thereafter. G uthrie was charged in Ocrober 2004 with felo ny th eft in rhe mane r. He entered a plea on Feb ruary 2, 2006, got a five year probated se ntence, and repaid an agreed $ 17,358.24 as restitu tio n to m e estate. Mr. Talley repaid the estate the $7,000 in late 2004, afte r d emand was made fo r pay menr by the ano rney fo r the Burdine children! heirs. Mr. Talley clai med he had no idea what G uthrie was doi ng with the estate funds until Mr. Pratt gO( th e bank reco rds in April 2004 . Mr. Tall ey apparently never raised a questio n o r co nce rn when G uthrie handed him


the two "fee" checks 2001.


Iale 2000-ea rly

JAM ES F. VALL EY, Bar No. 96052, of Hel ena, Arkansas, was rep ri manded and fin ed $500.00 by Co mmittee Findings & Order filed November 28, 2006, on a com plaint filed by Beverly G ill espie in Case No. C PC 2005- 12 1, for violatio n of Model Ru les 1. 1, 1.3, and 1.4(a). H e was also reprimanded and fined an additio nal $500.00 for failure to fi le a respo nse to the co mplaint. Mr. Vall ey represented Ms. Gi ll espi e in a d ivorce matter filed in Phi llips Coun ey on February 20, 2004. The case was later transferred to Woodruff Coun ey and served o n Ms. Gillespie's husband. Ricky Gi ll espie fil ed an answer ro the Complaint and a Coun ter-Clai m o n March 23, 2004. 0 answer to the o umer-Claim was filed by Mr. Valley. A hea ring was set in Woodruff Coun ty C ircuit Court for May 25, 2004. Ne ith er M s. G ill es pie no r Mr. Vall ey, appea red. Acco rdin g to Ms. G il1espi e, she had nO( bee n informed th at a heari ng had been scheduled. O n June 1,2004, a Divorce Decree was entered. A hea ring was sched uled fo r June 22, 2004, on any remaining issues, such as p roperty and d ebt, costs and an orn cy's fees. In the Divorce Decree, the Court stated th at "no n-appearance by any parry... may give rise ro rhe COlirt's award of a defa ulr judgment to the appearing parey. " Neith er M s. ill espi e no r Mr. Vall ey appea red fo r th is hea ring. Again , M s.

G illes pie stated tha t she had no t bee n inform ed about a hea ring o n J un e 22, 2004. T he Couct mad e findin gs concerning the properey and d ebt issues and an O rder was entered o n Ju ly 9. 2004. T he Court o rdered that the parties' mari tal ho me be sold. On July 29, 2004, Mr. G illes pie and a m ember of rhe Augusta Po lice Department appeared at Ms. G illespie's home and demanded possess ion ofitel11s listed in the Divorce Decree. Ms. Gillespie was unaware of m e iss uance of the O rd er o f Ju ly 9, 2004. On August 3, 2004, a Petition fo r Contempr was fi led by Mr. G illespie against Ms. Gillespie fo r her h ilure to com ply wi th the Order of July 9, 2004. Mr. Val ley filed a Rule 60 Motio n to Amend th e Order of July 9, 2004. In the Mo tio n, Mr. Val ley admitted [hat he was respo nsible fo r h is fai lure to appear for the scheduled hea rin gs, that he fai led to no tifY his cl ient of [he co urr d ates, and that he chose n ot to fil e an answe r to (he Co unterC laim filed by M s. G ill espi e's husband . C AUTION : RO BERT M . AB NEY, Bar No. 80001 , of Des Are, Arkansas. was ca uri o ned by Co mmittee Consent Findi ngs & O rder filed Dece mber 15,2006, o n a Per C uri am Order co mplaint fro m th e Arkansas Suprem e Cou rt in (he civil appeal of H ea mscou v. C essna, No. 06-984, in Case No. epc 2006- 129, fo r vio latio n o f Arkansas Rule 1.3. Mr. Ab ney admirred that his co nduct

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36 111e Arkansas La"ycr


Lawyer Disciplinary Actions with rega rd to the arrcmprcd appeal for Ms.

this problem umil Novembe r 18, 2004. He

Heathsco[t vio lated Rule 1.3. Mr. Abney

immediately fil ed a " Rule 60 motion [Q correct misprision of clerk and amended notice

fail ed to file the record on appeal for Ms. Hearhscort within nin ery (90) days of the

for ex tens ion of tim e to lodge transcripr. " In this mor ion, Mr. G il bert req uested the

KENNARD K. H ELTON, Bar No. 80050, of Dardanelle, Arkansas. was ca utio ned by Committee Co nse nt Findings & O rder filed December 18,2006. on a Per C uriam Order

filin g of rh e Norice of Appeal and he was required to file a Motion for Rule on the

court to eIlter an o rder directing that the

Clerk . Mr. Abney filed rhe reco rd on rh e 1DOth day. The Arkansas Supreme Court

notice of appeal be emered nunc pro tunc to reAect that the nori ce was received and filed

denied th e Motion for Rule o n the C lerk on Seprember 21, 2006, ending rhe cl ients

as of the date faxed . in order to co rrect the "clerical error" of not filin g the notice. The

opportuniry for appellate review of the

co urt issued an o rd er on that same dare

appeal fo r his client on Augusc 9, 2006, rhe 138rh day from rhe filing of rhe first Notice

lower co urt's decisio n . Mr. Abney ex plained

d enying rhe request for the nun c pro runc

of Appeal in Circuit Co urt. Mr. Helton was

mat he miscalculated rhe d ate for tendering

order. indicating in parr that, in addition to the fact (hat the clerk had nor received the

notified of the need for filing a Motion for Rul e on rh e C lerk, which he filed o n August

rhe record o n appea l. Mr. Abn ey provided informacion that his di em was made aware by him of the loss ohhe righr to appeal. IAN


G ILBERT, Bar No. 2003012, of

Fayetteville, Arkansas, was c3ucioned by Com mince C onsenr Findings & O rd er filed Ocrober 25, 2006, on a co mplainr filed by

complaim from the Arkansas Supreme Coun in the appeal of Jerry Sho rt v. Sandra Shorr, No. 06-914, in Case No. C PC 2006120, for vio lation of Arkansas Ru les 1.3 and 8.4(d). Mr. Helton tendered (he reco rd o n

faxed co py of the notice of appeal. there was

I S, 2006.

no evidence that the o ri ginal copy o f the nocice had ever been received by that office. Mr. G ilbert thereafter filed a motion for rul e

acknow led ged error for fai ling to seek and obtain an extensio n of time for fi ling the reco rd o n appeal. He explai ned m at he

In the Motion, Mr. HeltOn

on clerk in the Arkansas Supreme Courr. T hat motion was denied by Per C uri am

ning because of an Amended Dec ree of

believed that he had a new appeal time run Divorce which was em ered later and to

Glenn Wa ndrey o n behalf of his wife, Judy

Order issued Ja nuary 13, 2005. The Arkansas Supreme Court delivered an opi n-

which he filed a new Notice of Appeal. The

Wandrey, in Case No. crc 2006- 11 3 for violati o ns of Model Rules 1.2(a), 1.3, and

ion on Jun e 23, 2005, finding rhat rhe Boone Counry Ci rcuit Court did no t abuse

Co urt deni ed th e Motion for Rule on the Clerk, resulting in the denial of the client's

its discretion in denying the mOtion

opportunity for appell ate review of the

8.4(d) . Ms. Wandrey rerai ned Mr. Gilbert in

May 2003


file a petition for modification

of cuscody and for approvaJ


a nunc pro tunc order.



Decree of Divorce entered in his divorce


Following a hearing, the Boo ne Co un ty Ci rcuit CoUrt. on August 17, 2004. issued an order denying Wandrey's petition and awarding her ex- husband full custody of rhe parries' minor son. Ms. Wandrey sought to appeal, and paid Mr. G ilberr $6000 to handle rhe appeal. On Augusc 20, 2004, Mr. Gilbert faxed to the Boone Coun ty C ircuit

Womack, Landis, Phelps, McNeill & McDaniel

C lerk the Notice of Appeal, which scared

A Professional Association

that the appeal was taken from rh e August 17, 2004, ruling and designated the entire



record of the trial. The fax cover sheet asked

is pleased to announce that

the cle rk to file the Norice. and no ted that a

Jeffrey Scriber

self-addressed , stamped envelope would follow via U.S. Mail for the return of the filemarked co py.

A "message co nfirmation"


has become an associate of the firm

indicated that the fax was sene and received by the clerk's office withom problem on August 20, 2004. Mr. Gi lbert never rece ived a fil e-ma rked co py in th e return envelope, nor did he in quire wi th the clerk as ro why he had not received ir. For unknown rea-

'fom D. Womack Paul McNeill Jeffrey W. Puryear Dustin H. Jones Jared S. Woodard

David Landis Lucinda M cDaniel Mark Mayfield J. Nicholas Livers Serena T. Green Chuck Gschwend

John V. P h elps Richard Lusby J. Rogers McNeil Raney B. Coleman J. David Dixon

so ns, rhe Augusc 20, 2004, faxed No ti ce of Appeal was never fil e- marked by the clerk's office. Mr. G ilbert was nO( made aware of

Century Center, 301 W~sr Washington . P.O. Box 3077 • JOllesboro, AR 72403 • (870) 932·0900 www.wlpmm

vol. 42 No. I/Winler 2007

TIle Arkansas Lawyer


Lawyer DisciplinJ~Y Actions proceeding. In his Consent to Discipline proposal . Mr. Helron provided information to Committee demonstrating thar he had informed his client in writing mar it was his error wh ich caused the appeal to nO( be


able to be pursued. He also provided documentation demonstrating that he had credired his client's account with the amount his client had paid for the transcript for appeal. Further, Mr. Helto n provided information

The Law Firm of DAVIS, WRIGHT, CLARK, BUTT & CARITHERS, PLC is pleased to announce that

Jeff Fletcher University of Arkansas School of Law - 2005

has joined the firm as an associate

Sidney P. Davis, Jr.

Tameron C. Bishop

Constance G. Clark

Casey D . Lawson

Wm. Jackson Butt II

J . R. Carroll

Kelly Carithers

Tisha M. Harrison

Don A. Taylor

Missy LeAar

John G . Trice

Chad Gowens

Mark W. Dossett

Jeff Fletcher

Tilden P. Wright III ofco tinsel

p.o. Box 1688 19 East Mountain Street Fayetteville, AR 72702 (479) 52 1-7600

38 TIle Arkansas lawyer

mar he had wai ved the amount owed o n the billing to his client and had agreed to noc charge him for fur ther representation in the post ~ Decree matters. WALTE R CRAIG LAMBERT, Bar No. 871 00. of Li[de Rock. Arkansas. was ca utioned by Co mmittee Co nsent Findings & Order filed December 15. 2006, o n a Per uriam Order com~ plaint from the Arkansas Supreme Co un on rhe appea l of Jimmy Bumgardner, in Case No. C PC 2006151 for viola[ions of Model Rule 1.1. Mr. Lambert unsuccessfully petitioned in circuit court to be relieved as trial co unsel, and Bumgardner later entered a co nditional plea of guilty to possessio n with incent to deli ver meiliamphetamine and possession of drug paraphernalia. Mr. Lambert did nO( file an appeal on Mr. Bumgardner's behalf. Instead , Mr. Bumgardner prepared a pro se Notice of Appeal and mailed it to Mr. Lambert. Mr. Lambert admittedly reviewed the pro se Notice and timely filed i[ on behalf of his client. The Notice of Appeal mistakenly referenced th e "final order ... emered on March 16. 2005," instead of the actual judgment entered on March 21, 2005. On March 8. 2006, in Case No. CACR05775. Jimmy Bumgardner v. Srare, th e Arkansas Court of Appeals issued an opinion iliac dismissed ilie appeal for lack of jurisdiction. Thereafter, Mr. Lambert filed a MO(ion for Belated Appeal. which [he Arkansas Supreme Court granted. WILLIAM RANDALL MATTHEW TONE. Bar No. 2001 143. of Mountain Home, Arkansas, was cautioned by Com mittee Consent Findings & O rder filed O ctober 25, 2006, on a co mplaint filed by Darlccn ArtOS in Case No. C P 2006-076, for violation of Model Rules 1.3, 1.4(a)(3) and 1.4(a)(4) . Mr. Sto ne donared an "cs[a[e plan package" CO the Mountain H ome Lion's C lub for their annual auction in November 2004. Darleen Arros was

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Lawyer Disciplinary Actions the winning bidder. It rook her umil March

rhar he had until May 8, 2006, to complere

or April 2005 before she could make contact wim Mr. Scone in order to se t up an

the paperwork or she would contact the Office of Professional Cond uct. O nce again, her telephone calls were nO[ return ed .

appoimmenr for she and her husband


meet with Me. Stone [0 provide all rh e necessary information , Mrs. Arros and her husband caJled on numerous occasions during rhe cwenry-three (23) m onths from th e time rhey placed rhe winning bid and when Mr.

Srone final ly properly prepared the documentatio n, but did have the majority of Mr. Stone failed to promptly prepare the esta te plan documents he offered for preparat ion after meeting with Mrs. Arros and her husband. their telephone calls recurned.

during April 2005 .

After Mr. and Mrs.

Arros met with Mr. Sto ne

[Q provide the information for the preparation of the es tate plan documents, Mr. Stone failed to communica te with either or them or to advise if he had taken action on their behalf FinaU y

by rhe end of April 2006, Mrs. Arros left a message on Mr. Srone's answering machine

On May 5th, Mrs. ArtoS called and left a reminder about the matter. Mr. Scone called back and apologized. He promised ro work on the docum ents over the weekend and have them ready on Monday or Tuesday at the lates t. As of the date of her Affidavit.

and was sa tisfied and that she wished no addi tional action to be taken against Mr. Srone. Mrs. Arros did not receive th e documents at that time. although she signed th e document believing she wo uld receive th e estate plan immedia tely thereafter. Mrs. Arros did not receive the properly executed estate plan until October 2006, 23 months after Mr. Stone offered them for auction.

July 14,2006, Mrs. ArtoS had nor received


any documents from him nor any further co mmunication. During August 2006. afte r being served with the formal disciplinary co mplaint, Mr. Stone met with M r. and Mrs. Arros to complete the esta te plan paperwork. He vol untarily presented Mrs. Arms with the money she had paid at the auction fo r the preparation of [he documents. Mrs. Anos did nor request the funds from him . In addition, Mr. Srone presented a document for Mrs. Arros ro sign which stated that she had received her documents

No. 70070, of Co nway, Arka nsas, was cautioned by Committee Co nsent Findings &

Order fil ed October 25, 2006, on a rer Cu riam O rder complaint from the Arkansas Supreme Co un in the appeaJ of Detrick

Croston in Case No. c r c 2006-100, for violatio n of Model Rules 1.2(a), 1.3, and 3.4(l.). Mr. Tackett self-reported his failure

to file a rimely Notice of Appeal on behalf of his cl ient Detrick C roston in a criminal case in Faulkner Couney C ircuit Coun. On




a Judgme nr

JOB ANNOUNCEMENT Judicial Discipline and Disability Commission Executive Director The Judicial Discipline and Disability Commission has announced a search for an Executive Director. T his position is located in Little Rock, Arkansas. T he current Executive Direc tor is retiring. The ~uccessful ca nd idate should be

willing to ass ume his or her duries on July 1,2007. Position D escrip tion and Maximum Sala ry. The positio n serves at the pleasure of the Co mmissio n and also acts as

rh e Executive Director of rhe Judicial Erhics Advisory Comm ittee. The position is an unclassified posirion wirh the Stare of Arkansas. Maximum annual salary is ro be ser by the Legislative Co mmittee bur should be ar leasr $92,500. The salaty may increase by 3.5% in FY 2008-2009. Regular Stare of Arkansas benefi ts and retirement plans are offered . Minimum Qualifications. This position requires membership in the Srare Bar of Arkansas; srrong skills in analyzing citize ns com plaints and directin g investigations; and experie nce in coordination of the use of outside counsel in a n efficient, cost-effective manner. The successful candidate sho uld have a serious interest in professional ethics; be w illing to d eal with difficult, co mplex situatio ns involving the conduct of j udi cial officers; a nd must h ave m aintained a n exemplary co ndu ct reco rd as an attorney. In additi o n, th is position req uires stron g ve rbal and clear writing skill s.

Ex perience managing operating budgets is also helpful. Informarion and How to Apply. Resumes will be accepted unril April 16, 2007. Selecred candidates will be interviewed by the full Commission ar an upcoming meeting. Additional information regard ing the Judicial Discipline and Disabiliry Commission may be found ar Resumes may be sent as an attachment to electronic mail ro and should be in Microsofr Word or Word Perfecr formar. Res umes may also be sent to 323 Center Street, Suire 1060, Little Rock, AR 7220 1 or by fax to 50 1-682- 1049.

40 TI1C A rkansas La,-\ycr


Lawyer Disciplinary Actions Commitment Order was entered sente ncing Mr. C rosw n to a tCfm of 180 months in the Arkansas Deparrmcm of Correctio n o n a charge of aggravated robbery as an habitual offend er. Rule 2(a)( 1) requires that a not ice of appeal be fi led with in rhirty (30) days of th e date of entry of judgment. No nocice of appeal on behalf of Mr. C rostO n was ever fi led by Mr. Tackett. Mr. Croston filed a pro se Motion for Belated Appeal o n April 19, 2006, requ esting a belated appeal pursuant to Rul e 2(e) of rhe Ru les of Appellare Procedure-Criminal. O n May II , 2006, cite Arkansas Supreme Court iss ued a Per C uri am Order dismissing the requ est for a belated appeal, as rhe rime limi ta tion of Rule 2(e) requ ires mar a motion for belated appeal be filed within eighteen momhs from me dare of me entry of judgment. k the entry of Judgment was fi led on O ccobe r I,

was not able to contact Thomas thereafter when he call ed Thomas's office. Foster has since hired Mr. H ance to handle the matters entrusted to Thomas a year previously. O n June 26, 2006, after comacts with Thomas by Mr. H ance and rhe Office of Professional Conduct, T homas deli vered Mr. Foster's file and a refund check for $600.00 fo r Foster to Mr. H an ce's office. T ho mas respo nded that he needed add itional info rm ation from Foster, whi ch

2004, th e rime for filing a Moti on for Belared Appeal lapsed on April I, 2006.

Available 24/7.

ROY EDWARD THOMAS, Bar No. 73 122, of Batesville, Arkansas. was cautioned by Co mmittee Findings & Order fil ed December 29, 2006, on a complaint filed by Bi ll y Foster, for vio lar ion of Arkansas Rules 1.3, 1.4(a)(3), 1.4(.)(4), 1. 16(d), and 8.4 (c). Billy Foster of Floral, Arkansas, hired Thomas on June 23, 2005, to handle some legal business involving the affairs of hi s recentl y-deceased fath er and stepmother. O n that date Foster del ivered to Thomas certain documents rel ated to those matters and paid Thomas $600 of rhe $ 1,200 fee Thomas quored him. Periodically th ereafter Foster co maC[ed Thomas's office askin g for inform ation and status reports about these matters. H e was unable to get appropriate information from T homas or his sraff. To hi s knowledge, no small estate probate was ever filed and no actio n was taken by T homas on any matter he entru sted to Tho mas. incl udi ng two accou nts at local banks. On February 27, 2006, Foster had another local attorney, Eric Han ce. write T homas about th ese matters. Thomas did not res po nd to Mr. H ance's letrer until Jun e 26, 2006. On Ap ril 4, 2006, Mr. Foste r filed this complaint. On April I I , 2006, rhe Office of Profess io nal Conduct wrote T ho mas about this matter. No response was rece ived unt il Thomas's letrer of Jun e 26, 2006. In mid-May 2006, Thomas left at least one message on Foster's ho me telephone answering machine. Foster

Foster did not provide, and therefo re Thomas co uld nOt go forward with the legal work. Thomas also claimed he sem a lerrer with refund check [Q Foster twice, in December 2005 and March 2006, before th e final attempt was successful. In rebuttal , Foster stated that Mr. H ance was able to resolve the lega l matter Foster first engaged Thomas to handl e w ithin two mo nths with JUSt another copy of the death certificate and the bank statements . â&#x20AC;˘

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ludici;J1 Adviory â&#x20AC;˘ pinions RE: Advisory Opinion 2006-03 June 12, 2006

The Arkansas Judicial Edtics Advisory Commince issued an advisory opin ion CO

Anomey Ray Sp ruell, a pubJicaJJy announced candidate for circuit judge in

the Second Judicial District of Jonesboro, AIkansas. Anomey Spruell rcquesccd an opin ion as to wheth er a judicial candidate who is nO( an incumbent

judge may be piccured in a judge's robe or seated at the judge's bench in campaign materials.

The Committee noted that Canon 5A(3)(d) provides that a candidate for judicial office shall nor "knowingly misrepresent the identity, qualifications.

present position or othe r faCt concerning the candidate or an opponent."

It is the opinion of the Commince that a judicial candidace who is nO[ an incumbent judge shouM noc be pictured in a judge's robe or seated at a judge's bench in campaign materials. Such material would misrepresenc his or her "present posicion."

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Vol. 42 No. IlWinler 2007

n,e Arkansas Lawyer



In Memoriam


Homer Paul Jackson , Jr., of Berryville died October 3, 2006, at the age of 72. He graduated from the University of Arkansas in 1956 followed by rhe University of Arkansas School of Law in 1961, where he was a member of rhe Arkansas Law Review. Jackso n en listed in the U.S. Ai r Force fol lowing his undergraduate education. He was commissio ned a Lieutenanr and piloted various aircraft including a DC3 and other jet aircraft. A native of Berryville. he began a private law practice there in 1961, which he caminucd umit his death. During these years, he practiced law with George Brown and Srevan E. Vowell under the firm name of Jackso n. Vowell ~nd Rrown. He served as Berryville District Judge from 1967 until 1990. He was a member of the Arkansas Bar Asso ciation. Survivors include Saundra Kaye Hopkins of rhe home; a son, Scott Jackson; and [wo granddaughters. R OBERT AsTI

Robert Asti of Monroe, North Ca rolina, died October 16, 2006, at th e age of 89. H e received his unde rgraduate degree from the University of Pitcsburgh and his juris doctorate d egree from the University of Arkansas. H e was a vereran of World War II and the Ko rean War and received numerous military medals and ribbons. After the war, he sertl ed in Miami, Florida where he practi ced law from 1952 until his reriremenr in 1988. H e was a member of the Dade County Bar, Florida Bar Association and th e Arkansas Bar Association, where he se rved on rhe Busin ess Law and Small Firm Practi ce Managemenr Sections. H e is survived by his wife of 59 years, Hel en Louise (Youn g) Asti; four sons, Robert J. Asti, Ru ssell Z. Asti, Benjamin P. Asti, and Wi lliam H. Ani. J UDGE CHARLES S. GOLDBERGER Judge C harles S. Goldberger of Pine Bluff died Ocrober 20, 2006, at rhe age of 81. Following his graduation from Pine Bluff High School , he joined the U.S. Army serving until January of 1946, pani cipating in

44 TIle Arkansas lawyer

rh e barrles of Rhineland , Normandy, Non hern France and Ce ntral Europe. During his service in \'((orld War II , he was awarded a Bronze Star. He earned his juris docmrate degree from rh e University of Arkansas School of Law in 1950. Judge Goldberger bega n his legal career as an Assistanr City Attorney for the city of Pine Bluff and rhe Jefferson County Deputy Prosecuting Attorn ey. In 1954 he became the U.S. Co mmissioner fo r the Eastern Districr of Arkansas. He served as both U.S. C Ullllllissioner a nd C ity Anorney of White Hall umil 197 1, when he was elected to the positio n of muni ci pal judge for the City of Pine Bluff. Before retiring in 1995, he se rved as th e city judge for th e cities of Alth eim er, Humphrey, and W hite Hall. He was a pas t president of the Jefferson County Bar Associat ion and th e Municipal Judges Council. H e waS a member of the Arkansas Bar Assoc iat ion and ('h e 8rh Distri ct Executive Comminee. He is survived by a broth er, Arthur E. Goldberger, and numerous nieces and neph ews. Co rrection from the FalJ issue of

Tbe Arkansas LntVJer The distri ct judge from Berryville who died on September 10, 2006, was Kenr Coxsey. not Ted Coxscy as indicated in the head ing. Judge Ted Coxsey, who was Kent's father di ed several years ago. In addition to

his two daughters. Coxsey was survived by his wife, Jo Coxsey.

MEMORIAL GIFTS Pl ease remember the Arkansas Bat Foundation when yo u chose to make a memori al gift honori ng a family member, a coll eague or a friend of the profession. Acknowledgments arc se ll{ by {he Foundation [Q the F.mtily advisi ng them of the cont ributi on. The Arkansas Bar Foundation also receives and acknowledges g i~rs honoring IIldlvlduals fo r a speciaJ evell! in thei r lives. Gifts to [he Foundation are deductible for federal income [ax purposes and suppOrt the Foundation's work in making scholarship funds avai lab le for law students, aiding in education of {he public about lega l maners, supporting projects that assist in improving and facilimting [he admi nistration of justice and funding Other l aw~ relared charitable effortS_ Coll!ribu rions may be sell! directly (Q rhe Arkansas Bar Foundation. The staff appreciates having the name of the family member ro whom acknowledgments should be scnt. feel free ro call the Arkansas Bar Foundarion at 50 1.375.4606 or 800.609.5668 for furthe r information. Arkansas Bar Foundation 2224 COllondale une Linl e Rock, Arkansas 72202

The Arkansas Bar Foundation acknowledges with grateful "ppreciatioll the receipt of the following memorial, honorarium fwd scholll1'Ship contributions received during the period September 2 7, 2006, tln'oug" December 28, 2006.

IN MEMORY OF MARSHALL CARLISA James D. Sprorr IN MEMORY OF SANDRA WILSON CHERRY Randy Coleman Griffin . Rainwater & Draper. P.L. C . Jones & Harper Judge Robin L. Mays

IN MEMORY OF DANIEL SPRO"rr Donald E. Bishop Joyce Bobbirr Boon e- Newcon Counry Bar Association

Mr. and Mrs. H. Murray Claycomb Donis and Bonni e Hamii co n Do n and Leslie Hollingswo rth

Hoyte and Ann Pyle

Rosalind M. Mouse r

Mr. and Mrs. Sheffield Nelson


IN MEMORY OF ROBERT COMPTON Jo nes & Harper Judge James M. Moody Charles E. Plunkett

Robert and Lucille DeGasten Jones & Harper Laser Law Firm Hubie and Susan Mayes

Charles E. Plunkett IN MEMORY OF KENT COXSEY David and Ann e George

IN MEMORY OF WINSLOW DRUMMOND Judge James M. Moody C harles E. Plunkett

IN MEMORY OF WILLIAM WYNNE Mr. and Mrs. Sheffield Nelson Charles E. Plunkerr IN MEMORY OF JUDGE HENRY YOCUM , JR. Charles E. Plunkett

IN MEMORY OF JUDGE CHARLES S. GOLDBERGER Jefferson Coun ty Bar Association Rosal ind M. Mo user




Helena Bridge Terminal, In c. Helena Mari ne Serv ice. Inc.




IN MEMORY OF J. L. KIDD, JR. Judge Robin L. Mays Mr. and Mrs. Sheffield Nelson Schwa rtz & Associares C PAs, PA.





Rebsamen Ins urance Fo und atio n

Vo l. 42 No. IlWinler 2007

n,e Arkansas lawyer


Rates continued from page 12

nation of fair market value or fair value because use of the in correct standard can render the evidence presemed in suppOrt of a discoum rate meaningless.

COMMERCIAL DAMAGE LITIGATION When engaged. the expert usually has to develop: (I ) the busi ness' lost profits. (2) the length of the damage period. and (3) the appropriate d iscount rare ro apply ro the lost

profics analysis. In co mmercial damages analysis, the assessment of rh e risk process is often inco rporated inro the discount rare, not the in come strea m. Th e built-up discount rare development for business valuation, as outlined above, is an approach that assesses ri sk and thus ca n he a smrti ng place for development of a disco unt rate for commercial d amages. One type of discount rate that should be

co nsidered is the weighted average cost of capital ("WACC). When net cash Row to all inves ted capital (i. e .• equity + debt) is discounted, the appropriate disco unt rate is th e WACC. The WACC is a blending of the rate of return on debt (i.e., the company's bo rrowing rate) with the cost of equiey capital (rerurn on the m arket eq uiry of the company). This rate incorporates the perceived variabiliey of risk of the projected cash flow, as well as the risk of th e rerurn to the note hold er and equiey investo r, into the chosen disco unt rate. Some ex perts believe th at the rerum o n equiey of a speci fic plaimifT should be used . If the return on equiey of a specific plaintiff is used, the reru rn on equiey would be the net income after co rporate tax divided by the total equiey at market value. This wou ld necessitate valuing the business to get th e market value of equiey. Other experts consider the after tax cost of capital to be the appropriate discount rate. In considering any approach to the deveJopmem of a disco unt tate, the impo rtant principle is that all app roaches include a risk assess ment which develops a discount rate greater than the risk free rate. By using the WACC or a su itable alte rn ative to develop the co mpany's actual COSt of capital, a pany ~hould be made economically whole over time. Whether a particular methodology is appropriate for use in a spec ific case must be determined by the facts and circumstances of that case. For example, if the company has no debt, it would not be appropriate to use the WACC. 46

n,C Arkansas La'rycr

Cou rts have held that the determination of the appropriate discount rate is a questio n of fact. See. ' .g.• En"KJ Capital Corp. 302 F.3d at 1332. Th e fo llowing cases provide a perspective on th e variery of issues presented rega rding to discount rates: Energy Capillli Corp. v. United Statts, 302 F.3d 1314 (Fed. Gr. 2002) (10.5% disco un, ratc); Kool. Mann. Coffi' 6- Co. v. Coffry. 300 F.3d 340 (3d Gr. 2002) (growth rate of 7.5% and disco unt rate of 18.5%); Purina Mills, L.L.e. v. Less. 295 F. Supp. 2d 10 17 (N.D. Iowa 2003) (parties did not propose di sco unt rate; court used the U.S. Treasury Maturiey Index rates); Olsoll v. Nieman's, Ltd.• 579 N.W.2d 299 (Iowa 1998) (19.4% disco unt tate including a 14.4% rate of rerurn for publicly held corporations and an additional 5% to reflect market risk); Munters Corp. v. Swissco- Young Indu.s., Inc., 100 S.W.3d 292 (Tex. App. 2003) (10%); Knox v. Taylor. 992 S.W2d 40 (Tex. App. 1999) (competing ex perts urged growth rates of 25% vs. 6% and discount rates of 7% vs. 30%). Some of these cases contain detailed discuss io ns of the discount rate, while others comain no analysis of the rate or the considerations leading to its development. However, it is probably safe to generalize that co uer o pini o ns contai n more derailed treatment of discount rares when the attorneys were better prepared to develop th eir argum ents on that issue.

PERSONAL INJURY LITIGATION The engagement in a personal injury case usual ly includes the injured parey's annuaJ pre-tax loSt income, the rime period before retu rning to work or retirement, and a disco unt rate. With these co mponents, the expert develops the prescm value of the injured parry's losses, which represents the amount that wou ld make him or her whole. When considering the discount rare to use in these cases, there are fewe r disagreements among expens concern ing the range of appropriate rates. Most experts use a net disCOUnt rare approach, which is the interest rate (usually the rate of U.S. Treasury Ce rtificates) less the rare of inflation over a pe riod of time. This wo ul d be the real rate as opposed to th e nom inal rate. The real rate is typically between 1% and 3%. which represems real imerest rates over a relatively long time pe riod in the Un ited States. Using the real rate of return as the discount rate assumes that the inco me sueam is risk free. Th is may not make sense at firsr blush, but a risk-free r3te is the base assu mp-

tion for this type of analysis and is used by many ex pens in the field .

THE MEASURE OF DAMAGE Attorneys shou ld also determine the measure of damage applicable to a claim in a husin ess case, beca use th e measure of dam age m ay affect the d evelopment of the appropriate disco um rate. For exam ple, if the claim is that the acts of the defendant comp letely destroyed th e plaintiffs business, th en the measure of damage is arguably the valu e of the busin ess as opposed to lost profits. RONALD W. EADES. J URY INSTRUcrlONS IN COMMERCIAL Lm GATION § 17.07 (2d. ed .• Manhew Bender & Co. 2002). The calculation of lost profits co nsi ders profits on 3 company's income statement for the appropriate period of loss and then disCO UI1(S the profits by the disco unt rate discussed above. In COlUrasr, the discounted cash flow method for valuing a busin ess co nsiders the cash flow of a business and values the business by projecting those cash flows over an appropriate period and multiplying them by the disco unt rate as discussed above. Cold v. ZijfCOIIIIIIC'", Co.• 748 N. E.2d 198 (lli. App. 200 1). Th e methodologies fo r the development" of the d iscount rate in assess ing the business's lost profits and its val ue involve different co nsiderations. Therefo re, th e measure of damages should be determin ed before any attempt is made to develop the di sco uIU tare.

CONCLUSION The d evelopment of di scounr rares in co rporates a significant am ou nt ofjudgmenr by an expert. Howeve r, there are agreed methods for developing an appropriate discounr rate and those methods requ ire co nsideration of ce rtain known criteria. This article is a starting point for attorneys and judges. It idemifies certain objecrive co mpon en rs involved in the deveiopmelH of discounr rates which eliminate some of the unnecessary guesswork that is often encou ntered in this eype of engagement. Ultimately, th e development of these concepts by attorneys and judges will improve the q uali ey of business valuariom and damage awards that depend upon proper discount rates.

Endnotes continued on page 47

Endnotes continued from page 46

Book Review continued from page 31



FINANCE 73 (Irwin McGraw- Hill, 8[h ed. 2006). 3. Robert L. Dunn & Evercn P. Harry, Modeling and Discounting Future Damagu, 193 J. Acc,. 49, 49-55 (2002). 4. Ibbotson Associa tes, 5[ocks, Bonds, Bills and Inflatio n (SBBI) 2005 Yearbook:




(Michael W. Barad ed., Ibbocson Associa,es 2005). 5. Pract, SlIpra note I, at 68. 6. SHANNON P. PRATT, VALUING A BUSINESS 2 11 (McG raw- Hili, 4th ed. 2000) . •

(he reader sees simultaneously into the school building and [he courthouse, mee[5 at once with the school board and the \'(Io men's Emerge ncy Co mmirree, erc. The reader is creared (0 mini -biographies of seve ral key players in whar became an ep ic legal drama: newspapermen H arry

in so many ways. Jacoway writes, "The Little Rock Story shows in microcosm the difficulty of extending justice to a histo ri cally powerless group in the absence of a majoritarian will to do so." This may be a po litically correcc caveat

Ashmore, Hugh Panerso n, John Wells, and

the "good guys" come across mo re as less-bad actors than as true heroes (although the book is replete with emphas is that th e race obstade in the South was huge, even to those who were co nsidered progressive). (2) Notwithstanding that the battle to desegregate the schools was, by some definicion, won, the war that became a half-century of litigation has not yet reached a condusion .•

orhers; lawyers Wi ley Bramo n, Richard Buder, Archi e House, Bill Smith, Gasron Williamson, and others; concerned ci tizens Daisy Ga rso n Bares, Vivion Lenon Brewer,

El izabeth


Adolphine Terry,

Evererr Tucker, Grainger Williams, and others. AJI of whose paths cri ss-crossed durin g a painful era that has come to define Arkansas

rega rding twO aspecrs of her book: (I) Even

n your c eague,S ~JI ~I-4·1: June 6-9; 2007

Arkan sas ll.rr Association

()nlinc' MClllhn I )irccrory

109th Annual Meetin;;.'~.;.'!:;~

( :lIITC.:nt umlact ini()rtll;1tion fc)r o ver Ij,()~() nll"lllh..T\

Excill siw Bl'nd" ti" Ml'lllhlTS ( )nl y www .. lrklur.ullll


continued from page 22 H owa rd was assigned to HaJI Dormito ry, a University residence hall for ve teran s, whe re he was read ily accepted. In fact, a group of white veterans as ked him to run for pres ident of H all Dormitory. He did and was elected. Geo rge Howard , Jr. , did become a lawyer and devo ted his practice to representing those whose voices would nOt otherwise be heard. H e took the lesso ns gleaned fro m his years as a Seabee-as an African-American Seabee-and chose th e path of nonviolence and persistence championed by Dr. Martin Luther King, Jr. In doing so, he blazed trails fo r mher African -Ameri ca n lawyers, becomi ng the first black person to serve on the Arkansas Supreme Co urt and the first black person in the state to be appoi med as a federal di strict judge. He has served with distinction. Judge H owa rd 's story reveals the truth of human narure-peopie, black and white, at th eir noblest and their most ignob le. He stands as a li ving remin der of the power of hard work, hope, faith, op nnllsm, and persistence. AJrhough the st ruggle for civil rights co nrinues, the exa mp le se t by Judge Howard and the other civil

rights pioneers exhorts us-bo th as indi viduals and as a nation- to heed "the better angels of our natu re."3 _

Endnotes I. The NYA was headed by Aubrey Williams, an Alabaman with close ties to Eleanor Roosevelt. The head of the Texas divisio n, for a time, was Lyndon Baines Johnso n.

2. Abou[ 167,000 blacks served in ,he Navy in WW11. wi,h almoSt 12.500 African-Americans serving in the Seabees.

3. President Abraham Lincoln's First Inaugural Address (end ing with the following: "The mystic chords of memory, stretching from every batrle-field , and patriot grave to every living heart and hea rthstone all over this broad la nd, will ye t swell the chorus of the Union, when again touched, as surely they will be, by th e ben er angels of ou r nature.") Vol. 42 No. l!Winter 2007

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The Arkansas Lawyer - Winter 2007  

The Arkansas Lawyer magazine is the flagship publication of the Arkansas Bar Association. The quarterly publication communicates the news of...

The Arkansas Lawyer - Winter 2007  

The Arkansas Lawyer magazine is the flagship publication of the Arkansas Bar Association. The quarterly publication communicates the news of...