Page 1

The Arkansas


A publication of the

Arkansas Bar Association

Vol. 46, No. 1, Winter 2011 online at

Arkansas Bar Association 113 th Annual Meeting JOINT MEETING WITH THE ARKANSAS JUDICIAL COUNCIL


• ALL NEW sports law track featuring Mike Leach and Walt Coleman • ABOTA Masters in Trial mock trial program • Barry Richards of Greenberg Traurig will present on the Erosion of Civil Liberties • Health Law track with topics about the impact of the new federal legislation • Returning — Lounge & Learn, Scotch & Cigars & Fashion show

Touchdown Arkansas Bar!

Publisher Arkansas Bar Association Phone: (501) 375-4606 Fax: (501) 375-4901 editor Anna K. Hubbard executive director Karen K. Hutchins Editorial Board Gordon S. Rather, Jr., Chair Judge Wiley A. Branton, Jr. O. Milton Fine, II Judge Victor A. Fleming Brandon J. Harrison William D. Haught Philip E. Kaplan Mary Beth Matthews Drake Mann David H. Williams Teresa M. Wineland OFFICERS President Jim L. Julian Board of Governors Chair Sean T. Keith President-Elect Tom D. Womack Immediate Past President Donna C. Pettus President-Elect Designee Charles L. Harwell Secretary F. Thomas Curry Treasurer William A. Martin Parliamentarian Charles D. Roscopf Young Lawyers Section Chair Brandon K. Moffitt BOARD OF GOVERNORS Thomas M. Carpenter Richard C. Downing Jeffrey E. McKinley Robert R. Estes, Jr. Amy Freedman David M. Fuqua Amy Grimes L. Kyle Heffley Anthony A. Hilliard Don Hollingsworth Paul W. Keith Harry A. Light Jeffrey Ellis McKinley Laura E. Partlow Jerry D. Patterson Brian H. Ratcliff John C. Riedel Brian M. Rosenthal Gwendolyn L. Rucker Brock Showalter John T. Vines Danyelle J. Walker Dennis Zolper

LIAISON MEMBERS Zane A. Chrisman Frank B. Sewall Jack A. McNulty Harry Truman Moore Judge Kim Bridgforth Carolyn B. Witherspoon Judge Ralph E. Wilson, Jr. Karen K. Hutchins The Arkansas Lawyer (USPS 546-040) is published quarterly by the Arkansas Bar Association. Periodicals postage paid at Little Rock, Arkansas. POSTMASTER: send address changes to The Arkansas Lawyer, 2224 Cottondale Lane, Little Rock, Arkansas 72202. Subscription price to non-members of the Arkansas Bar Association $35.00 per year. Any opinion expressed herein is that of the author, and not necessarily that of the Arkansas Bar Association or The Arkansas Lawyer. Contributions to The Arkansas Lawyer are welcome and should be sent to Anna Hubbard, Editor, All inquiries regarding advertising should be sent to Editor, The Arkansas Lawyer, at the above address. Copyright 2011, Arkansas Bar Association. All rights reserved.

The Arkansas

Lawyer Vol. 46, No. 1


10 Uniform Laws, Legislation and the Arkansas Bar Association: A History and Report Lynn Foster 14 Ethics and the Arkansas Pro Bono Lawyer D’lorah L. Hughes

18 Arkansas Bar Association Lawyer Legislators Serving in the 88th General Assembly

Cover Photograph Courtesy of the Secretary of State’s Office

28 Usury in Arkansas: Something Old, Something New W. Christopher Barrier

30 Supreme Court Justice and Governor Henry M. Rector L. Scott Stafford 34 Arkansas JLAP Justice Robert L. Brown Community Support Award Scan the QR code to go to Contents Continued on Page 2

Lawyer The Arkansas Vol. 46, No. 1

in this issue Association News


Board of Governors


columns President’s Report

Schedule of Elections


Jim L. Julian

CLE Calendar


Young Lawyers Section Report

5 9

Brandon K. Moffitt

Thank You to the 2010 CLE Speakers and Program Planners


2011 Leadership Academy


Judicial Disciplinary Actions


Attorney Disciplinary Actions


In Memoriam


Wall of Patrons


Arkansas Bar Foundation Memorials and Honoraria


Classified Advertising


Your Name in Print For information on submitting articles for publication, go to and click on The Arkansas Lawyer or email

Arkansas Bar Association

2224 Cottondale Lane Little Rock, Arkansas 72202

HOUSE OF DELEGATES Delegate District A-1: Anthony W. Juneau, Anthony W. Noblin, Kristin Pawlik, William J. Trentham, and Hollie Greenway Delegate District A-2: Brock Showalter, Tim Tarvin, Debby Thetford Nye, Paul D. Reynolds, W. Marshall Prettyman, Jr., Charles M. Duell, Troy L. Whitlow, Suzanne Clark, Stan B. Baker, Matthew L. Fryar, and Tina M. Hodne Delegate District A-3: Farrah L. Fielder, C. Michael Daily, Jeffrey D. Rickard, Joel D. Johnson, Stephanie Harper Easterling Delegate District A-4: John C. Riedel Delegate District A-5: Brent Capehart Delegate District A-6: Emily Sprott McIllwain Delegate District A-7: Michael E. Kelly Delegate District B: Gwendolyn L. Rucker, M. Stephen Bingham, Joel M. DiPippa, Khayyam Eddings, Christian Harris, Gill A. Rogers, Alan G. Bryan, Tim J. Cullen, JaNan A. Davis, Jennifer W. Flinn, Anne Hughes White, Tasha Sossamon Taylor, Patrick L. Spivey, Shaneen Kelleybrew Sloan, Jason Earley, Jerald “Cliff” McKinney, II, John P. Perkins, III, Victor D. “Trey” Wright, Mark W. Hodge, Cathy Underwood, Jodie Lynn Hill, Grant M. Cox, James Paul Beachboard, Phillip M. Brick, Jr., Whitney L. Foster, Stephen R. Giles, Aaron L. Squyres, Adam Wells, Dan C. Young Delegate District C-1: Jay Scurlock Delegate District C-2: Jerrie Grady Delegate District C-3: Keith Chrestman, Brant Perkins, Teresa M. Franklin Delegate District C-4: Curtis Walker Delegate District C-5: Albert J. Thomas, III, A. Jan Thomas, Jr. and Winston B. Collier Delegate District C-6: Charles E. Clawson, III, Shane A. Henry Delegate District C-7: William N. Reed Delegate District C-8: Brandon C. Robinson, Paul T. Bennett, Charles D. Roscopf Delegate District C-9: Timothy R. Leonard, C.C. Gibson III, Leslie Jo Ligon Delegate District C-10: Shivali Sharma and George M. Matteson Delegate District C-11: John C. Finley, III, J. Philip McCorkle Delegate District C-12: Jonathan D. Jones and Wade T. Naramore Delegate District C-13: Cecilia Ashcraft, Sam E. Gibson Law Student Representatives: Malcolm Means, University of Arkansas School of Law; Kimberly Eden, UALR William H. Bowen School of Law


The Arkansas Lawyer


• Is your firm’s 401(k) subject to quarterly reviews by an independent board of directors? • Does it include professional investment fiduciary services? • Is your firm’s 401(k) subject to 23 contracted service standards? • Does it have an investment menu with passive and active investment strategies? • Is your firm’s 401(k) sponsor a not-for-profit whose purpose is to deliver a member benefit? • Does it feature no out-of-pocket fees to your firm? • Is your firm’s 401(k) part of the member benefit package of 36 state and national bar associations? If you answered no to any of these questions, contact the ABA Retirement Funds to learn how to keep a close watch over your 401(k).

Unique 401(k) Plans for Law Firms Phone: (877) 947-2272 • Web: • email: The American Bar Association Members/Northern Trust Collective Trust (the “Collective Trust”) has filed a registration statement (including the prospectus therein (the “Prospectus”)) with the Securities and Exchange Commission for the offering of Units representing pro rata beneficial interests in the collective investment funds established under the Collective Trust. The Collective Trust is a retirement program sponsored by the ABA Retirement Funds in which lawyers and law firms who are members or associates of the American Bar Association, most state and local bar associations and their employees and employees of certain organizations related to the practice of law are eligible to participate. Copies of the Prospectus may be obtained by calling (877) 947-2272, by visiting the Web site of the ABA Retirement Funds Program at or by writing to ABA Retirement Funds, P.O. Box 5142, Boston, MA 02206-5142. This communication shall not constitute an offer to sell or the solicitation of an offer to buy, or a request of the recipient to indicate an interest in, Units of the Collective Trust, and is not a recommendation with respect to any of the collective investment funds established under the Collective Trust. Nor shall there be any sale of the Units of the Collective Trust in any state or other jurisdiction in which such offer, solicitation or sale would be unlawful prior to the registration or qualification under the securities laws of any such state or other jurisdiction. The Program is available through the Arkansas Bar Association as a member benefit. However, this does not constitute an offer to purchase, and is in no way a recommendation with respect to, any security that is available through the Program. C09-1005-035 (07/10)

Members Score Big!

Triple Score

Triple Score

Triple Score

Triple Score

V H I E D I N S U R A N C E L I N T T O H N A L 3






















Triple Score


Triple Score


Triple Score

Triple Score

New Dental & Vision Insurance Plans in addition to health insurance at a competitive rate from Regions Insurance • Underwritten by Ameritas Group, an “A” rated company by A.M. Best. • Dental and Vision plans are available for group coverage or individual coverage. • Go to any dentist with no waiting periods. • Comprehensive coverage for dental procedures including 100% coverage for cleanings, 80% for basic, and 50% for major and orthodontics. • Unique feature that increases your annual maximum each year with the Dental Rewards rollover plan. • Great benefits and discounts on all of your eyecare needs (i.e. exams, lenses, frames, contact lenses, etc.) with more than 26,000 VSP providers. For more information about medical, dental and vision insurance please contact: Mike Crow at 501-661-4879 or 4

The Arkansas Lawyer

President’s Report

by Jim L. Julian

The Role of a Professional As licensed attorneys in Arkansas, we are governed and guided by the Arkansas Rules of Professional Conduct. In reviewing these rules recently, my attention was drawn to the Preamble to the rules regarding a lawyer’s responsibilities. Right off the bat, the Preamble begins: A lawyer, as a member of the legal profession, is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice. We all recognize and accept our role as a representative of clients and as an officer of the legal system. We seldom think of ourselves as a “public citizen.” Or as a public citizen having special responsibility for the quality of justice. We are charged with a duty to uphold the integrity of our legal system and to insure that the highest quality of justice is rendered by this system. These rules recognize that when we take the oath to become a lawyer, we take on the responsibility to advocate for the legal system and to publicly advance the cause of justice. The public citizen lawyer owes an obligation to the judicial system, to the rule of law and the administration of justice. We are duty bound to zealously represent our clients but to do so within the accepted rules of our adversary system. In our advocacy, we must never take any action to impugn the integrity of the judicial system. I am sure we have all heard clients make comments to the effect that the legal system cannot be trusted. That a certain judge is somehow connected to an opposing party or their lawyer and that this connection will certainly result in an adverse outcome. As

lawyers, we cannot allow such comments to go unchallenged. Our system of justice requires confidence in the rule of law. To that end, a lawyer should never make comments that directly or indirectly call into question the integrity of a court. When faced with “crooked system” comments by clients, we should be quick to defend the legal system and the quality of justice in Arkansas. Even more troubling to me are the arguments I have seen in pleadings in which attorneys have implied that a judge or a court must have been influenced by matters outside of the record in a particular case. Such comments directly attack the integrity of the court and should never be tolerated. We win or lose our cases on the facts and the law applicable to that set of facts. Sometimes we get so caught up in our advocacy that we lose proper perspective. Any attempt to suggest that a judge or a court acted with some motive other than a fair assessment of the facts and the law should be quickly rebuked. The Preamble addresses this by providing: As a public citizen, a lawyer should seek improvement of the law, access to the legal system, the administration of justice and the quality of service rendered by the legal profession…. In addition, a lawyer should further the public’s understanding of and confidence in the rule of law and the justice system because legal institutions in a constitutional democracy depend on popular participation and support to maintain their authority. We seldom think about the underpinnings of our legal system as popular partici-

pation and support, but it is true. When the public loses faith in the integrity of our system of justice, adherence to the rule of law will be the next domino to fall. Therefore, it is imperative that we as lawyers take all necessary steps to further the public’s understanding of our legal system. Further, we must be vigilant to respond to any attacks on the integrity of our system of justice in order to assure that public support remains in place. The Preamble concludes with the following: A lawyer owes a solemn duty to uphold the integrity and honor of the profession; to encourage respect for the law and for the courts; to act as a member of a learned profession; to conduct affairs so as to reflect credit on the legal profession; and to inspire the confidence, respect and trust of clients and the public. This portion of the Preamble places the burden on lawyers to uphold the integrity and honor of the profession. We are privileged to practice law. We hold that privilege because the state has determined that we have met the educational and moral requirements to serve as lawyers. In turn, we must encourage respect for the law and for the courts. Most importantly, we must inspire the confidence, respect and trust of clients and the public. We can accomplish this by defending the integrity of our courts and the system in which we practice. We should strive to be public citizens who are actively engaged in the education of the public regarding our legal system and in the reform of our laws when such reform becomes necessary. In doing so, we will occupy the role of a professional. n

Vol. 46 No. 1/Winter 2011 The Arkansas Lawyer


Association News The Lawyers for Literacy Committee presented Student and Tutor of the Year Awards for the Arkansas Literacy Council

l to r: Regan Gruber Moffitt, Amanda Gibson, Peggy Bateman, Carolyn Wood, Sherri Latimer and Jessie Burchfield. The Lawyers for Literacy Committee continued their tradition of selecting the Student and Tutor of the Year for the Arkansas Literacy Council. The winners this year were Student of the Year, Peggy Bateman, and Tutor of the Year, Carolyn Wood. Members of the Committee presented the awards in conjunction with the Arkansas Literacy Council’s annual conference held at the Embassy Suites in Little Rock on October 21, 2010. Committee members Regan Gruber Moffitt (chair), Sammy High, and Sherri Latimer led a session at the conference showing how the Young Lawyers Section’s 18 and Life to Go: A Legal Handbook for Young Arkansans can be used to promote adult literacy as well as provide education on Arkansas law.

The Arkansas Bar Association at the Arkansas Curriculum Conference

Members from the Law Related Education Committee, Mock Trial Committee and Young Lawyers Section hosted an exhibit booth at the Arkansas Curriculum Conference held at the Statehouse Convention Center in Little Rock November 4-5, 2010. Committee members Mark Hodge, Chad Law Related Education Committee Chair Cumming, Laura Elkins, Grant Mark Hodge visits with educators at the AssoCox, Cheryl Reinhart and Anne ciation’s exhibit booth. Orsi took turns talking to educators from across the state about Association programs available for the classroom. The members promoted three Association programs designed for teachers and students, including the DVD/classroom curriculum materials A Level Playing Field; the YLS publication 18 and Life to Go; and the Mock Trial Competition. 6

The Arkansas Lawyer

Charles L. Harwell of Springdale is the new President-Elect Designee

Charles L. Harwell was elected the new Arkansas Bar Association PresidentElect Designee on October 31, 2010. Mr. Harwell is a partner in the firm of Cypert, Crouch, Clark and Harwell in Springdale. The firm is the oldest in Springdale, having been established in 1947. Mr. Harwell is a graduate of the University of Michigan, College of Literature, Science and Arts. He and his then young family transplanted to Arkansas in 1979 when he was admitted to the University of Arkansas School of Law. Mr. Harwell has been an attorney for more than 28 years, all at the same firm. His professional time is divided between litigation and non-litigation matters. He is active in the Arkansas Bar Association serving on several committees. He currently chairs the Sustaining Member Committee and has served on the Finance Committee for 12 years. He is a tenured delegate of the House of Delegates having served two separate stints of six years each. He served a term on the Executive Council and recently finished serving two terms on the Board of Governors. The Association recently honored Mr. Harwell with the Charles L. Carpenter Award for his exemplary service to the Association. Mr. Harwell joins the Association’s leadership track composed of President Jim L. Julian, President-Elect Tom D. Womack and Immediate Past President Donna C. Pettus. He will assume the office of President-Elect at the June 2011 Annual Meeting.

Association News

Oyez! Oyez!

Complete your Library with

ACCOLADES The American Association for Paralegal Education awarded Pulaski Technical College paralegal instructor Cathy Underwood the Grand Award of the Delmar Cengage Learning Excellence in Teaching Competition for demonstrating exemplary teaching skills. The Arkansas Chapter of the American Board of Trial Advocates awarded the 2010 Jim Moody Civility Award to Ed Lowther, managing partner at Wright, Lindsey & Jennings LLP in Little Rock. Andrew King of Williams & Anderson PLC in Little Rock and Crissy Monterrey of the Monterrey & Tellez Law Firm in Little Rock were recently named by Arkansas Business magazine as one of “The New Influentials: 20 in Their 20s.” Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C. has been named 2011 Corporation of the Year by the Northwest Arkansas Dr. Martin Luther King, Jr. Planning Committee. Philip S. Anderson, a founding partner of Williams & Anderson, PLC, and now Senior Counsel, was inducted as a trustee of the American Academy of Arts & Sciences. Robert M. Wilson of Wilson & Associates, PLLC was honored by receiving the USFN Lifetime Achievement Award. APPOINTMENTS AND ELECTIONS Zachary Taylor, partner with the law firm of Brockman, Norton & Taylor, Pine Bluff, Arkansas, is Chairman of the Board of the Greater Pine Bluff Chamber of Commerce for the year 2010. Gov. Beebe appointed Elana Wills of Little Rock to the Public Service Commission (PSC). Wills replaced Paul Suskie who announced his resignation. Commissioner Collette Honorable will take over the role of PSC chairman. Gov. Beebe appointed Ernest Cate of Springdale to Springdale district judge, replacing Stanley Ludwig. Cliff Hoofman of Enola was appointed as associate judge for District 2 on the Arkansas Court of Appeals, replacing Karen Baker. Tom Wynne of Fordyce was appointed as Dallas County district judge, replacing Robin Wynne. Debby Thetford Nye was elected second vice president of the Women’s Foundation of Arkansas. James D. Gingerich, director of the Arkansas Administrative Office of the Courts, was inducted into the Warren E. Burger Society. Byron Cole Rhodes of Hot Springs was elected chairman of the city’s Community Development Advising Committee and was accredited to prosecute veterans benefits claims before the Department of Veteran’s Affairs. Christopher R. Thyer was sworn into office as U.S. Attorney for the Eastern District of Arkansas on December 31, 2010. Thyer was nominated by President Obama. Eva Madison, of Fayetteville, AR was elected to the Washington County Quorum Court. WORD ABOUT TOWN Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C. announced that Assistant U.S. Attorney Christopher D. Plumlee has joined the firm to lead its Government Investigations, Enforcement and White Collar Crime team as Counsel. The Asa Hutchinson Law Group, PLC in Rogers announced that Kristi L. Hunter joined the firm as an associate attorney. The Bank of the Ozarks announced that Penny Wilbourn has joined the bank as associate general counsel. The Baim Law Firm announced that its Hot Springs office has moved to a new building located at 307B Carpenter Dam Road, Hot Springs, AR 71901. Judge Bill Wilson announced that his official name has been restored to Billy Roy Wilson as opposed to William R. Wilson, Jr. The law firm formerly known as Huckabay, Munson, Rowlett & Moore, P.A. announced the firm has a new name, Munson, Rowlett, Moore & Boone, P.A. With the departure of Mike Huckabay, Sr., the firm welcomed three new attorneys to the firm: Amy Tracy, Charles Lyford and Mary Carole Crane. We encourage you to submit information for publication in OYEZ! OYEZ! To do so, please send information to:

Arkansas Bar Association Practice Handbooks

Available as a Book or a CD Order online at or call (501) 375-4606 NEW !

Standards for Examination of Real Estate Titles in Arkansas


Arkansas Bankruptcy Handbook Arkansas Domestic Relations Handbook Handling Appeals in Arkansas Revocable Trusts for the Arkansas Practitioner Arkansas Form Book Arkansas Probate Handbook

Members Save Over $50 per book!

Vol. 46 No. 1/Winter 2011 The Arkansas Lawyer


Association News Reading Day a Success

Association President Jim L. Julian reads to an elementary class at Rockefeller Elementary School on Reading Day.

Over 80 attorneys and judges volunteered to read to students at Rockefeller Elementary in Little Rock on November 16, 2010, to help promote literacy. The Arkansas Bar Association Lawyers for Literacy Committee recruited 83 volunteers to read at Rockefeller in conjunction with the Volunteers in Public Schools (ViPS) Jane Mendall Reading Day. Committee member Jesse Burchfield coordinated this effort with help from committee chair Regan Gruber Moffitt. Association Committee member Beth Echols coordinated a similar event in Lake Village.

Nomination entry forms are available for this year’s Arkansas Bar Foundation and Arkansas Bar Association Awards. These awards include: (1) Outstanding Lawyer; (2) Outstanding Lawyer-Citizen; (3) C.E. Ransick Award of Excellence; (4) James H. McKenzie Professionalism Award; (5) Equal Justice Distinguished Service Award; and (6) Outstanding Local Bar Association. These awards will be presented jointly by the Foundation and the Association at the Annual Meeting in Hot Springs in June. Deadline for submission of nomination forms: Friday, April 8, 2011. Nominations may be submitted by any Association member. To request an entry form, please call Ann Pyle at the Arkansas Bar Foundation at (501) 375-4606 or (800) 609-5668 or email

Notice of CNA Insurance Rate Increase Effective January 1, 2011, CNA Insurance, our Bar endorsed insurance carrier, will be implementing a 3% base rate increase. Costs have been trending up over the last five or six years due to claim inflation while average rates have remained relatively flat. We have been fortunate to have had many years with no rate activity and these changes are a small step to help prevent any deterioration and protect the health of the Arkansas Bar Association Professional Liability Plan. We feel it prudent that issues are addressed as they arise and are manageable, rather than having to deal with potential larger obstacles that could require more drastic action later on. 8

The Arkansas Lawyer

Arkansas Bar Association New Staff

Cindy Westacott Data Administrator Cindy Westacott has been with the Association since September 2010 in her current position. She has worked in the secretarial field for almost 10 years in various capacities. She received a Bachelor of Science degree in Professional Development and Children’s Ministry from Southwestern Assemblies of God University. She has a seven-year-old son Blake.

Share the News about 18 & Life to Go “18 and Life to Go: A LeA Legal Handbook for gal HandYoung Arkansans book for Young Arkansans” provides young people with invaluable legal advice on important topics such as the management of credit and the various ways of settling disputes. It covers both civil and criminal legal issues.


and Life to Go:

Prepared by Arkansas Bar Association Young Lawyers Section

• • •

First Edition

Download for free at Order on the Kindle for $2.00 at Order a paper back copy for $5.00 on

Forward the links to your friends and family in high school and college.

Young Lawyers Section Report

by Brandon K. Moffitt

Abundance of Opportunities to Serve in YLS Nominations for Elections Due April 1, 2011

One of my goals when seeking the Chair position of the Young Lawyers Section (YLS) was to increase the membership’s knowledge about leadership/volunteer opportunities within the Bar Association and increase participation in the activities we sponsor. My initial step toward meeting the goal was to expand the use of the Section’s seven standing committees. I am happy to report that we have over 50 new members serving on a committee within the YLS this year. This growth has allowed the YLS to expand our quarterly publication, In Brief, plan several social events across the state, as well as continue our work on 18 & Life to Go: A Legal Handbook for Young Arkansans. I am excited about the increased participation on the committees and I look forward to the additional progress over the course of this year. The next step towards reaching the goal is to increase the number of candidates for the YLS Executive Council and Officer positions that we elect at the Annual Meeting in Hot Springs. Each year three Executive Council members (one from each of the State’s Bar Districts) and the Section’s Secretary/Treasurer are elected by the membership. Each District Representative to the Executive Council is elected for a threeyear term and the Secretary/Treasurer of the Section is elected for a one-year term. This year we will also have an additional position for a one-year term from District C to fill the District Representative vacancy created by Chair-Elect, Brian Clary. There are only a couple of guidelines you must meet in order to seek an elected position within the YLS. First and perhaps the most obvious, you must be a member of the YLS. Membership in the YLS is automatic with your membership to the Arkansas Bar Association as long as you are: under age 36

or have been admitted to the practice of law within the last five years (regardless of age). Second, only members residing in the appropriate Bar District to which a position is designated shall be eligible to seek election. A candidate’s residence is determined by the county in which the individual maintains his or her primary practice. Of course, a candidate for Secretary/Treasurer may reside in any of the three districts since the position is elected by the entire membership. Third, candidates for the District Representative position must be nominated by a YLS member, who resides within the district. This includes any individual nominating himself or herself for the position. Again, since the Secretary/Treasurer is elected by the entire membership, any member can submit a nomination for the position regardless of the bar district in which you reside. Finally, and most importantly, all nominations for the upcoming election must be received by the Associate Director of the Arkansas Bar Association, Lorrie Payne, by April 1, 2011. Nominations may be delivered by 1) personal delivery to the Bar Center; 2) electronic mail to lpayne@arkbar. com; 3) fax to (501) 375-4901; or 4) U.S. Postal Mail to the Bar Center. Any nomination delivered by U.S. Mail is considered timely delivered if postmarked by April 1, 2011. The nomination should include your name, the position you are seeking, and the Bar District in which you reside. I would encourage each of you to consider running for a position within the YLS. By seeking a leadership position, you can become actively involved in the ongoing work of the Section, as well as make decisions about our future endeavors. I feel it is healthy for every organization to have qualified, interested, individuals

vying for leadership positions because it ensures that the organization maintains focus, is exposed to a diversity of ideas, and is accountable to its membership. In closing, I want you to know that the YLS has a place for you whether that be a candidate for a leadership position, serving on a committee, or just attending events sponsored by the Section. If you have questions about the upcoming elections or are interested in becoming involved within the Section in any other capacity, please feel free to contact me and I will assist in any way that I can. n Nomination entry forms are available for this year’s Young Lawyers Section Frank C. Elcan II Award This award is given in recognition of a lawyer who has demonstrated exceptional leadership skills in and made outstanding contributions to the Young Lawyers Section of the Arkansas Bar Association. This award will be presented at the Annual Meeting in Hot Springs in June. Deadline for submission of nomination forms: Tuesday, March 15, 2011. Nominations may be submitted by any Association member. To request an entry form, please contact Lorrie Payne at the Arkansas Bar Association at (501) 375-4606 or (800) 609-5668 or email

Vol. 46 No. 1/Winter 2011 The Arkansas Lawyer


Uniform Laws, Legislation and the Arkansas Bar Association: A History and Report By Lynn Foster1

The Uniform Law Commission (“ULC”) is the oldest existing body dedicated solely to law reform in the United States.2 Its commissioners have met annually since 1892 to consider the adoption of uniform and model acts, which are then recommended for passage by the states.3 Since 1892, over 300 uniform or model acts have been adopted by the Commissioners and referred to the states.4 Currently the ULC lists 136 active uniform laws and model acts on its website.5 The Arkansas Bar Association (“the Association”) is also a venerable entity, dating back to 1898 in its present form. The Association has been instrumental in Arkansas’s enactment of many uniform laws. The purposes of this article are to present a brief history of the ULC, particularly as it relates to Arkansas; to discuss the purpose and role of uniform laws; to report on the latest National Conference of the Commissioners on Uniform State Laws; and to outline the process by which the Arkansas Bar Association considers legislation, particularly as it relates to uniform laws.6 The Uniform Law Commission One of the provisions of the constitution of the American Bar Association, adopted in 1878, was to promote “uniformity of legislation throughout the Union.”7 In 1890, the American Bar Association recommended that each state create a commission to examine and recommend uniform legislation, following the model of New York, which did so in 1890.8 By the end of 1891, five states had followed the recommendation. The first meeting of what is now the Uniform Law Commission took place in 1892, immediately preceding the Annual Meeting of the American Bar Association, at Saratoga Springs, New York. Seven states were represented: Delaware, Georgia, Massachusetts, Michigan, New York, New Jersey and Pennsylvania. The Conference met with early success: its Negotiable Instruments Law, adopted in 1896, was ultimately enacted in every state and territory and the District of Columbia.9 The Conference quickly grew in numbers of states attending. Not all of the states created commissions originally; in those states, governors appointed representatives to attend and participate in the Conference. Today drafting committees meet through10

The Arkansas Lawyer

out the year. At the National Conference, the work of the drafting committees is read and debated by the commissioners in a committee of the whole. Each act is considered over a period of several years and to be proposed to state legislatures must be adopted by a majority vote of the states. The Conference is run on a shoestring budget, with a small staff. Each state pays dues based on its population. Arkansas Uniform Law Commissioners Arkansas did not enact legislation creating a commission until 1945,10 but its first representative to the National Conference was John Fletcher, appointed in 1906.11 The first three commissioners appointed pursuant to the act were Edward L. Wright of Little Rock, Robert A. Leflar of the University of Arkansas Law School, and Joe C. Barrett of Jonesboro.12 The list of Arkansas uniform law commissioners and representatives includes many notables of the Arkansas bar, such as George B. Rose; Ashley Cockrill; John M. Moore; William Nash; and UALR Donaghey Distinguished Professor of Law Robert R. Wright III.13 A complete list of representatives and commissioners is found at Appendix A. Three Arkansans have served as president of the Conference: Joe C. Barrett, in

1953-55; John C. Deacon, in 1979-81; and Phillip Carroll, in 1985-87. Only four states boast as many or more ULC presidents: Illinois (4); Maryland (4); Pennsylvania (4); and California (3). Today Arkansas has six uniform law commissioners. Three were appointed by Governor Beebe and serve four-year terms beginning in 2009 — currently they are John F. Stroud, Jr. (Texarkana), Elisa White (Little Rock) and Lynn Foster (Little Rock). The latter two are the first women commissioners ever appointed from Arkansas. The Uniform Law Commission allows commissioners who have served for twenty years to apply for election to life commissioner status. Current Arkansas life commissioners are John C. Deacon (Jonesboro) and Phillip Carroll (Little Rock). Associate commissioners are state officials whose job duties include drafting legislation. Arkansas’s associate commissioner is currently Vincent Henderson II (Little Rock). Under the Constitution of the ULC, Commissioners have several duties. Those relevant to this article are: 1) to attend the annual Uniform Law Commission meeting; and 2) to “seek introduction and enactment of Uniform Acts promulgated by the Conference that are appropriate for their State.”14

Under Arkansas law, Commissioners have additional duties. The statutes establishing the Arkansas Commission on Uniform State Laws call for the governor to appoint three members to serve four-year terms. Life commissioners also serve on the Arkansas Commission. Arkansas state law imposes several duties on the commissioners: 1) to choose a chair and a secretary with two-year terms; 2) to report to the General Assembly at each regular session, and more often if necessary, with “an account of [the Commission’s] transactions and its advice and recommendations for legislation”; 3) to do all within their power to promote uniformity in state laws upon all subjects “where uniformity may be deemed desirable and practicable”; and 4) to promote, as far as practicable, the uniform judicial interpretation of uniform laws.15 Uniform Laws The ULC has a policy to determine whether a uniform or model act is appropriate at all.16 Some factors considered are: 1) whether the subject is appropriate for state legislation; 2) whether there is an obvious reason for an act; 3) whether there is a reasonable probability that an act will be enacted by a substantial number of jurisdictions; and 4) whether uniformity of the law will produce significant benefits to the public.17 Uniform laws most widely enacted by the states are those that have covered interstate commercial transactions (e.g., the Uniform Commercial Code); those that avoid conflict of laws when the laws of more than one state may apply to a transaction (e.g., the Uniform Child Custody Jurisdiction and Enforcement Act); those without substantial interstate implications but that modernize the law (e.g., the Uniform Simultaneous Death Act); and those that promote uniformity indirectly (e.g., the Uniform Rules of Evidence, which has had an impact on case law and teaching practices, or the Uniform Testamentary Additions to Trusts Act, which addresses a specific problem within the larger area covered by the Uniform Probate Code).18 Once a uniform act is adopted, the current Arkansas commissioners decide whether it is advisable and practicable to attempt to secure its enactment in Arkansas. They may then work with the Uniform Law Committee of the Arkansas Bar Association, other committees or sections, other entities within Arkansas (such as the Arkansas Bankers’ Association), and directly with legislators to attempt

Photograph Courtesy of the Secretary of State’s Office

to achieve support for the uniform act. Of course, states are free to amend uniform laws as they choose, but the more a uniform law is amended, the more the benefit of uniformity is diminished. Does a uniform act cease to be uniform, and entitled to that term, because a state has changed it too much? One example of this is the Arkansas Residential Landlord and Tenant Act, which started its existence as the Uniform Residential Landlord and Tenant Act. The law as enacted, however, con-

tained virtually none of the many pro-tenant provisions present in the original uniform act. Thus, the ULC does not list Arkansas as a state that has enacted the uniform law. Arkansas has enacted forty-seven current uniform or model acts. A list is available at Appendix B. One of the most helpful aspects of uniform laws is the extensive “official comment” for each act, although attorneys are sometimes unaware of the existence of these. They can be found with the statutes in the

Lynn Foster is the Arkansas Bar Foundation Professor of Law at the University of Arkansas at Little Rock William H. Bowen School of Law. She currently serves on the Arkansas Bar Association Uniform Laws Committee.

Vol. 46 No. 1/Winter 2011 The Arkansas Lawyer


West annotated code; in the separate Commentaries volumes of the LexisNexis annotated code (although here they have not been kept up to date); and online on Westlaw and Lexis. Unfortunately they are not available on the state’s online code, or on Fastcase.19 Arkansas ranks in the top third of states with respect to the number of uniform and model acts adopted.20 This is not surprising, as Arkansas is neither a wealthy nor a populous state and until 2010 its legislature met only three to four months every two years. States like New York and California, with legislatures almost constantly in session, have law reform commissions or large legislative staffs. To states not so well off, uniform laws are a tremendous bargain. They are products of years of considered, thoughtful debate by experienced practitioners, judges and academicians. These two paragraphs from the Annual Report of the Minnesota Uniform Law Commissioners hold true for Arkansas as well: No state can duplicate the benefits it receives from participation in the Uniform Law Commission for the money it spends. The ULC is able to get maximum results on a minimum budget because uniform law commissioners donate their time and expertise. Moreover, because ULC drafting projects are national in scope, we are able to attract a broad range of advisors and observers to participate in our projects, resulting in a drafting process that has the benefit of a greater range and depth of expertise than could be brought to bear upon any individual state’s legislative effort.

Uniform law commissioners devote hundreds, and in some cases, thousands of hours of the uniform law effort. The ULC estimates that each commissioner devotes an average 150 hours a year, including work on various drafting committees and attendance at the annual meeting. The cumulative value of this donated time in the development of uniform and model acts comes to literally thousands of hours. The value of this donated time averages over $10 million annually. Even in today’s economic climate, with states across the country continuing to struggle with their budgets, the process of drafting a uniform law remains an immensely costeffective endeavor.21 One act in particular has benefited state government. Since its enactment, the Unclaimed Property Act has generated $106,275,910 for state revenue from intangible property held in custody.22 At the 2010 Conference, the Commission adopted ten uniform laws. They are: •The Amendments to the Uniform Collateral Consequences of Conviction Act, originally adopted in 2009. This act requires defendants who have been charged with a felony to be informed of the collateral consequences of a felony conviction prior to a guilty plea or trial. The amendments are in response to the recent U.S. Supreme Court decision in Padilla v. Kentucky, where the Court held that an attorney’s failure to inform his client that pleading guilty to selling

marijuana would result in deportation was a violation of the client’s constitutional rights.23 •The Uniform Military and Overseas Voters Act eases the process of voting for citizens in the military or otherwise overseas. •The Uniform Partition of Heirs Property Act places limited restrictions on the partition of real property to make it easier for cotenants to buy out others and thus keep property within a family. •The Insurable Interest Amendments to the Uniform Trust Code, which Arkansas adopted in 2005,24 clarify that trustees have insurable interests in life insurance policies covering settlors, and preserve the validity of irrevocable life insurance trusts which otherwise may be vulnerable to the Chawla problem.25 •The Revised Model State Administrative Procedure Act updates the 1980 act, which Arkansas has not enacted, to recognize electronic communications and other state procedural innovations. •The Revised Uniform Law on Notarial Acts. This updates the 1982 act, which Arkansas has not enacted, in the areas of notary responsibilities, electronic recording, interstate recognition, and remedies. •The Uniform Protection of Genetic Information in Employment Act regulates the acquisition, use, retention, and disclosure of genetic information in the context of employment, allowing individuals to control the privacy of their genetic information and prevent its misuse. •The Uniform Faithful Presidential Electors Act provides a statutory remedy in the event a state presidential elector is “faithless” (fails to vote in accordance with the




Javascript CSS

MySQL jQuery


…but we know all about them. We build websites.

Let Shift Creative craft an amazing website for your firm.


The Arkansas Lawyer

voters of his or her state), mandates a stateadministered pledge of faithfulness, and provides a mechanism for filling an electoral vacancy. A few states have already elected statutes to solve this problem, but uniformity will assure a solution that is consistent among the states. •The Amendments to Article 9 of the Uniform Commercial Code provide greater guidance as to the name of the individual debtor to appear on a financing statement. •The Uniform Electronic Recordation of Custodial Interrogations Act addresses the use of audio and/or videotaping to record law enforcement officers’ interviews of criminal suspects who are in custody. It mandates audio recordings of interrogations only, leaving to the discretion of the various states and law enforcement agencies to require both audio and video recording of custodial interrogations. The Legislative Process of the Arkansas Bar Association This process is governed by the Bylaws of the Arkansas Bar Association. Proposed legislation may originate from any source: individuals, committees or sections. The ultimate goal for proposed legislation is inclusion in

the “bar package,” a small group of bills introduced under the aegis of the Association and lobbied for by the Association’s lobbyist, currently Jack McNulty of Pine Bluff. The Uniform Laws Committee In the case of uniform laws, the Uniform Laws Committee of the Arkansas Bar Association studies uniform laws and decides which are in the interest of the Association and should be included in the Association’s legislative package. This Committee is made up of persons who have expressed interest. Currently it has thirty-four members, five of whom are Commissioners, and is co-chaired by G.S. Brant Perkins of Jonesboro and Commissioner Elisa White. The Committee’s study process typically begins in August of odd-numbered years, a year and a half before the start of the future legislative session. Subcommittees report on uniform laws to the Committee in the autumn. Committee members then meet or conference by phone and decide which uniform laws to send to the Jurisprudence and Law Reform Committee for inclusion in the package for the legislative session. In 2009, the Committee voted to send seven acts (of eleven considered) onward to Jurisprudence and Law Reform.

The Committee for Jurisprudence and Law Reform This committee recommends proposed legislation to the House of Delegates for inclusion in the bar package. Its current chair is Dennis Zolper of Jonesboro (who is also a member of the Uniform Laws and Legislation Committees). The Bylaws call for the Committee to have seventeen or eighteen members. Five members are appointed by the President-Elect for three-year terms, one from each of the three state bar districts, as well as two others. The chair of the Legislation Committee and the Bar Lobbyist also serve ex-officio on this committee.26 Remaining members are chosen from those who express interest, as with other Bar Association committees. Typically, the deadline for Jurisprudence and Law Reform to receive proposed legislation for consideration is January 31st of the year before the legislative session — in other words, the end of January 2010 was the deadline for the 2011 session. Jurisprudence and Law Reform committee members conduct their own studies of proposed legislation. The bar package is limited by the Bylaws to 10 bills under ordinary circumstances but in exigent Uniform Laws continued on page 44

Vol. 46 No. 1/Winter 2011 The Arkansas Lawyer


Ethics and the Arkansas Pro Bono Lawyer

by D’lorah L. Hughes1

“As with any legal representation, pro bono attorneys must be aware of the ethical rules that set out their professional responsibilities and govern their behavior as lawyers.” Introduction Arkansas faces a critical need for the provision of legal services to people with limited financial means. Statistics from the 2000 Census indicate that 21% of the population of Arkansas qualifies for legal aid services.2 There are two legal aid programs in Arkansas, Legal Aid of Arkansas, serving 31 counties in northern and eastern Arkansas, and the Center for Arkansas Legal Services, covering the remaining 44 counties in central and southern Arkansas.3 Each year these programs receive approximately 25,000 calls from Arkansans qualified to receive assistance.4 Between 30% and 45% of these calls are turned away.5 The primary reason for almost a third of the need going unmet: a lack of resources.6 A Legal Services Corporation (“LSC”) study concluded that the “minimum standard of access” required for the adequate delivery of legal assistance to those with limited financial means is one legal aid attorney for every 5,000 low-income residents.7 Currently in Arkansas, the ratio is one legal aid attorney to every 12,250 low-income residents.8 To achieve the LSC’s minimum standard of services, Arkansas would need to hire at least 67 attorneys, plus additional support and administrative staff, at a cost of over $6.4 million dollars annually.9 While it is unlikely that this $6.4 million dollar financial need will be met anytime soon, licensed attorneys volunteering their services on pro bono cases can bridge the legal services gap and get Arkansas closer to meeting the national minimum standard of access. American Bar Association and Arkansas Rule of Professional Conduct 6.1 As early as 1969, the American Bar Association (“ABA”) recognized in its Code 14

The Arkansas Lawyer

of Professional Responsibility the need for attorneys to donate their time to serve the disadvantaged.10 Model Rule 6.1 was written in 1983, modified in 1993 and again in 2002 to include a quantifiable aspirational goal.11 The rule urges all attorneys to provide an annual minimum of 50 hours of pro bono service.12 Each state may choose the number of hours of annual service, whether higher or lower than the ABA rule.13 In May 2005, Arkansas adopted the ABA’s aspirational rule on pro bono service.14 Rule 6.1 of the Arkansas Rules of Professional Conduct states that every lawyer has a professional responsibility to provide legal services to those who are unable to afford them.15 According to the rule, each lawyer should aspire to provide at least 50 hours of pro bono legal services per year.16 The rule recognizes the critical need for legal services that exists among persons of limited means and stipulates that a substantial majority of the legal services be provided without a fee or expectation of a fee.17 It is important to remember that while not undertaken for a fee, pro bono matters are real cases with real consequences. The same duties and responsibilities apply as they would to any matter for a paying client. As with any legal representation, pro bono attorneys must be aware of the ethical rules that set out their professional responsibilities and govern their behavior as lawyers. Below are a few of the ethical rules that are particularly important to attorneys donating their time to pro bono work. Competence Rule 1.1 Pro bono work can be an excellent opportunity to gain additional experience in a legal area or to broaden the depths of one’s knowledge by attempting something new.

However, when an attorney takes on pro bono work in an unfamiliar area, he or she runs the risk of violating the rules regarding competence. This should not be taken as discouragement from handling pro bono cases, but merely a word of warning to new and experienced attorneys alike. Rule 1.1 requires attorneys to provide competent representation to their clients.18 Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.19 Comment two to this rule provides that newly admitted attorneys can be as competent as experienced practitioners in any area.20 There are a variety of ways one can reach the standard of competence necessary for representation. First, one may associate with or consult another attorney who is competent in the area to reach the standard necessary for representation.21 Additionally, representation is acceptable where the required skill or knowledge can be acquired by training or preparation.22 For example, an attorney who primarily handles criminal matters but wishes to take on a pro bono juvenile delinquency case can learn the juvenile code and juvenile court procedures by reviewing the code itself, observing the

Assistant Professor of Law D’lorah Hughes directs and teaches the criminal clinics at the University of Arkansas Law School of Law.

local juvenile court and/or consulting with the juvenile court public defender. To assist pro bono attorneys of all experience levels with their cases, the Arkansas Legal Aid Services Partnership, in conjunction with the Arkansas Access to Justice Commission, has created a website designed to assist pro bono attorneys.23 This password-protected site provides over 1,000 forms, informational fact sheets and fillable pleadings in a variety of practice areas. Attorneys who have registered as pro bono volunteers have access to the site, may attend reduced or no fee Continuing Legal Education seminars and receive guidance from a legal services attorney. Diligence Rule 1.3 Rule 1.3 states that a lawyer shall act with reasonable diligence and promptness in representing a client.24 While there is nothing per se different about the diligence required for representing a pro bono client versus a paying client, handling both types of matters at the same time requires schedule balancing and time management. It is vital to remember that a pro bono client is still a client and deserves the same effort and dedication from the attorney as any paying client. A pro bono case should be viewed as a part of an attorney’s caseload, not as an “extra” item to be handled when there is time. Comment two provides that “a lawyer’s work load must be controlled so that each matter can be handled competently.”25 Note that Rule 1.3 regarding diligence regularly appears in the top list of most violated ethical rules in Arkansas: ranking number one in 2008 and number two in 2009.26 Remember to consider your workload obligations when an opportunity to take on a pro bono matter arises so that both your pro bono and paying clients benefit from your expertise. Communication Rule 1.4 Rule 1.4 states that a lawyer has a duty to keep the client reasonably informed about the status of the matter and shall promptly comply with reasonable requests for information.27 Proactively providing regular communication to the client should keep the client’s requests for information to a minimum.28 All requests from a client should be acknowledged and responded to in a timely manner.29 Like any other client, pro bono clients have varying degrees of knowledge about

the legal system and its procedures. The client should have sufficient information to participate intelligently in decisions concerning the goals of the representation and the strategies utilized to achieve those goals.30 “The guiding principle is that the lawyer should fulfill reasonable client expectations for information consistent with the duty to act in the client’s best interests, and the client’s overall requirements as to the character of the representation.”31 Additionally, the attorney should reasonably consult with the client when the attorney knows the client expects assistance that is not permitted by the Rules of Professional Conduct or by other laws.32 With or without the expectation of a fee, attorneys must abide by the law and the Rules of Professional Conduct. Good communication with the client will ensure that the goals of the representation are realistic as well as lawful. Like the rule on diligence, Rule 1.4 regarding communication and its subsections regularly appears in the top list of most violated ethical rules in Arkansas, ranking fifth in 2008 and seventh in 2009.33 Malpractice Insurance While there is no rule requiring attor-

Resources for Arkansas Pro Bono Attorneys Pro Bono Portal (Password Protected) node/29 Legal Aid of Arkansas Center for Arkansas Legal Services Arkansas Model Rules of Professional Conduct conduct/index.cfm Access to Justice Commission

neys to maintain malpractice coverage, it is certainly a best practice to protect oneself and one’s business by purchasing insurance. When undertaking pro bono representation, attorneys should consider whether their insurance covers work done outside the

AVAILABLE SOON! Private Placements and Limited Offerings of Securities A Guide for the Arkansas Practitioner By Frances S. Fendler Professor of Law UALR Bowen School of Law

“This book offers a comprehensive and understandable look for the Arkansas practitioner into the sometimes murky, sometimes arcane and always challenging world of securities law. Frances has performed a real service, not only for those who don’t have much experience in the area, but also for those who practice securities law on a regular basis, in providing this basic guide to federal and Arkansas securities law.” -- John Selig, Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C.

Check for availability date and ordering information. This book will be updated periodically through a Cummulative Supplement posted on the Association’s website. Vol. 46 No. 1/Winter 2011 The Arkansas Lawyer


The Blue Book From compiling to printing to final delivery, we maximize our resources to provide a directory that allows customers to reach you faster and more efficiently. And with over 70 years of publishing expertise we can minimize your effort to accelerate the exposure of your professional business listing across the state. The can help you reach a bigger market.

A bigger market is out there... too can reach it with the

Blue Book

To order your copy or to be included in the next edition contact us at 1-800-447-5375 16

The Arkansas Lawyer

Legal Directories Publishing Company, Inc. -

regular scope of employment. Work done in a different practice area or outside of the agency/firm may be not be covered under the specific terms of the policy. However, secondary coverage may be available to the pro bono attorney. For example, when Arkansas lawyers take pro bono cases from either of the two legal aid organizations their work is covered by the organization’s malpractice insurance free of charge. Alternatives to Direct Pro Bono Representation There will be times where an attorney will not be able to provide direct pro bono representation to individuals or organizations. Rule 6.1 provides alternatives for attorneys who wish to meet their pro bono responsibility but are unable to provide the service themselves.34 First, the attorney can engage in activities designed to improve the law, the legal system or the legal profession.35 Examples of activities that meet this provision include serving on bar association committees, acting as a CLE instructor, or engaging in legislative lobbying to improve a law.36 Second, the rule anticipates that there will be a time when it is not feasible to provide either direct pro bono representation or participate in activities such as those described above.37 Providing financial support to organizations like Legal Aid or other agencies that provide service to those of limited means can suffice to meet the pro bono professional responsibility.38 To calculate the appropriate amount of

Corporate Attorney Head up new in-house department for very successful privately held growing Arkansas Company. You will be a key leader in the management decisions to help take this company to the next level. Must have broad legal experience in Employment Law, state and federal laws and regulations, contracts and business transactions, negotiations with vendors and customers, mergers and acquisitions and international experience a plus. You should have good business acumen, be resourceful, and think like an executive. Excellent Compensation Package and Benefits Please submit resume on a confidential basis to our search consultant.

financial support, one should determine the approximate value of the pro bono service that would have been provided.39 The donation should be reasonably equivalent to that value.40 Conclusion Undertaking pro bono work can be “one of the most rewarding experiences in the life of a lawyer.”41 As an aspiration, Rule 6.1 allows attorneys to contribute in a variety of ways over the span of their career. You may find the case of a particular pro bono client inspiring one year but be called to serve on a bar committee the next. No matter how it is given, pro bono work is rewarding on both personal and professional levels and attorneys who donate their time and expertise help both the individual client as well as the state of Arkansas. Endnotes: 1. The author would like to thank Kris

Koelemay and Amy Johnson for their invaluable assistance. 2. United States Census Bureau: Arkansas Economic Characteristics (2000). 3. Center for Arkansas Legal Services & Legal Aid of Arkansas, The Voices of Justice Annual Report (2009), Annual%20Report.pdf. 4. Id. 5. Id. 6. Id. 7. Legal Services Corporation, Documenting the Justice Gap in America (2007), http:// 8. Id. 9. Id. 10. Model Code of Prof’l Responsibility EC 2-25 (1969). 11. Model Rules of Prof’l Conduct Preface (2002). Ethics continued on page 51

Business Valuation Forensic Accounting Economic Loss Divorce Accounting, Tracing, Appraisal Commercial Damages, Agricultural Damages Certified Public Accountant Certified Fraud Examiner Accredited Senior Appraisers Court-Appointed Expert Testimony Fair Pricing Richard L. Schwartz CPA, MCBA, ASA, ABV, CFE

Schwartz & Associates LLC 11510 Fairview Road, Suite 100 Little Rock, AR 72212-2445 501-221-9900 / 501-221-9292 fax

Steven F. Schroeder JD, MCBA, ASA

Vol. 46 No. 1/Winter 2011 The Arkansas Lawyer


Photographs Courtesy of the Secretary of State’s Office

A Message from the Governor I have long been a proponent of the idea of the lawyer-legislator. It is my belief that attorneys, who are able to do so, have an obligation to take time away from their practice to serve their fellow citizens in the General Assembly. It’s an honorable tradition, dating back to our State’s, and indeed our Nation’s, founding. More important, it serves the vital, practical purpose of ensuring that proposed legislation is legally sound. In the nearly 30 years that I have been participating in and observing Arkansas’s legislative process, I have seen countless examples of lawyer-legislators reaching out to their colleagues, often crossing party lines to offer guidance that improves the quality of proposed bills. In many cases, a legislator-lawyer may not have necessarily supported the intent of the legislation, but felt a duty to ensure that the bill did not conflict with current law or create the potential for harmful, unintended consequences. As term limits continue to thin the ranks of experienced legislators, the need has never been greater for lawyer-legislators with a working knowledge of Arkansas Governor the Arkansas Code to serve in the Arkansas General Assembly. Mike Beebe Additionally, the presence of lawyer-legislators from both political parties can help to maintain and improve civil discourse in our legislative body. Partisan politics, as practiced in Washington, D.C., has no place in the Arkansas State Capitol. Our ability to move Arkansas forward has always depended on the ability of elected officials from both parties to work together in an atmosphere that acknowledges differences of opinions and approaches, but works in a constructive manner. Lawyers, by training, are well-versed in those protocols designed to keep adversarial proceedings from disintegrating into incivility. That experience can improve the quality of the legislative process for every member of the General Assembly and for the people of Arkansas. Finally, I believe that legislative service can have a positive impact on those attorneys who choose to serve, improving their understanding of Arkansas law, as well as exposing them to the experiences and points of view of Arkansans from outside the legal community. Lawyers have a unique opportunity to put their education and training to work for the betterment of our State. Many times, this service requires some sacrifice, but in my own experience, the positive impact of public service has always far outweighed the time spent away from my practice and served to enhance my understanding of the law and my appreciation for Arkansas and her people. 18

The Arkansas Lawyer

The Importance of Lawyers Being Involved in Government “The law is the cornerstone of a civilized society and the foundation upon which this country was built, thus the importance of having trained lawyers in our government cannot be overemphasized. The U.S. and Arkansas constitutions protect our civil liberties and outline the role of government. An understanding of the law is necessary for those elected to governmental roles so that they may efficiently, fairly, and legitimately pass the laws which govern us. Lawyers are equipped to take on the challenges that face our government, having studied the constitution and our legal system in depth. My office is responsible for representing the state in court, and we do so with talented attorneys who are compelled to public service because they understand the importance of a capable, effective and legally sound government. As attorneys in government, we are relied upon as trusted counsel to ensure that the foundation of our country always remains strong. Without lawyers who are willing to serve the public, this democracy suffers.” Arkansas Attorney General Dustin McDaniel In Office Since January 2007

Representative Davy Carter District 48: part of Lonoke county Public Service: House 2009, 2011

Representative John W. Walker District 34: part of Pulaski county Public Service: House 2011

Why is it important for lawyers to serve in the legislature? “During each legislative session, members of the Arkansas General Assembly are challenged with a wide range of policy issues. Although being a lawyer is certainly not a prerequisite to being an effective and capable legislator, I think that lawyers clearly benefit from being formally exposed to the legal system. As such, the legislative process as a whole is enhanced when lawyers are among those participating.”

Representative John C. Edwards District 38: part of Pulaski county Public Service: House 2009, 2011

Why is it important for lawyers to serve in the legislature? “Part of what makes Arkansas’s Legislature truly representative of our Representative state is that it brings together lawmakers from all different profesJim Nickels sional backgrounds, and that is important. However, having a strong District 43: legal presence among membership is vital. In drafting and debating part of Pulaski county legislation, lawyer-legislators are able to spot issues that are not always Public Service: immediately obvious. Because of our training, we bring a deeply anaHouse 2009, 2011 lytical approach to the lawmaking process, and I think that is often helpful to our non-lawyer colleagues. We have spent a great deal of time throughout our careers studying the language of statutory law. We recognize what kinds of laws work and what kinds have potential to create ambiguity. We have seen firsthand how these laws impact Arkansans’ lives, and we are able to provide insight in precisely and effectively drafting bills that will make strong, solidly reasoned laws for our state. ” Vol. 46 No. 1/Winter 2011 The Arkansas Lawyer


Why is it important for lawyers to serve in the legislature? “There are a number of reasons why it is important for lawyers to serve in the legislature; however, several stand out. Obviously, lawyers’ training and experience in dealing with the law are valuable in the legislative process. Furthermore, lawyers regularly litigate disputes and negotiate transactions between parties holding diverse positions, thus bringing experience in negotiation, resolving issues and reaching common ground. We understand how to work to resolve competing interests, and how to do so with a high level of professionalism, which is particularly valuable in an era where politics has become highly charged. Finally, it is important for lawyers to serve in the legislature for the same reason that it is important for lawyers to serve as judges, prosecutors, or public defenders, or to provide pro bono services to individuals or to volunteer with charitable organizations, because we, as lawyers, have a professional responsibility to serve others, our community and our state.” Representative Matthew J. Shepherd District 6: part of Union county Public Service: House 2011

Why is it important for lawyers to serve in the legislature? “One important factor in today’s legislature is term limits. With all Representative of the good that term limits has brought, there is no doubt that the Nate Steel General Assembly is in need of legislators who come in with the District 21: knowledge and skills necessary to hit the ground running. Without Sevier and part of Howard counties a basic understanding of law and procedure, valuable time and rePublic Service: sources are wasted on determining such things as the constitutionSpecial Election -Oath of Office ality of a bill. 11/1/2010, 2011 Secondly, a legal education and experience can help lawmakers predict and mitigate unintended consequences of legislation. There are a ton of great ideas floating around the Capitol, and the lawyerlegislators are particularly important to seeing that a solution to one problem does not create another. Finally, it is important to separate the issues from their advocates. The adversarial system teaches lawyers to do just that. Hopefully, the legislature benefits from lawyers, who often know how to disagree without being disagreeable.”

Why is it important for lawyers to serve in the legislature? “To whom much is given, much is expected goes the old adage. Representative As attorneys and leaders in our communities, it is imperative John T. Vines that we assume the responsibility that follows and comes with District 25: our positions. With our education and respective backgrounds, part of Garland county it is vital that we utilize that education and experience to work Public Service: for the greater good. House 2011 Now more than ever, local, state and federal governments need our talents and abilities. Issues and concerns are being debated and decided on a daily and weekly basis that require a keen eye and understanding of minute detail. Our legal training and understanding are required to help us to comprehend the consequences of the laws that are enacted. Ultimately, we must be willing to serve in order to preserve and promote our rights so that future generations may prosper.”


The Arkansas Lawyer

Why is it important for lawyers to serve in the legislature? “I think the Arkansas General Assembly is best served when its membership consist of a diversity of professions, experiRepresentative ences and backgrounds. Lawyer-legislators are an important Darrin Williams component of an effective and diverse legislature. Lawyers by District 36: part of Pulaski county virtue of their legal training bring a fundamental knowledge Public Service: of the law, the constitution, due process, equal protection House 2009, 2011 and many other broad legal principles that form the basis for much of our public policy. This fundamental understanding is critically important when analyzing proposed legislation and its impact and effect on people and commerce. Further, non-lawyer legislators, often look to lawyer-legislators for their “legal” advice or opinions. Therefore, we serve as a resource to other members. Additionally, attorneys are trained to write and speak concisely and to zealously advocate for their client, skills that serve you well in the General Assembly.”

Why is it important for lawyers to serve in the legislature? “I think that it’s critical that our profession be active in the legislaRepresentative ture for a variety of reasons. The most obvious, of course, is the fact Marshall Wright that the legislature is creating laws and funding agencies and projects District 51: based on authority afforded them by the Constitution. The better Monroe, part of Woodruff, part of the understanding of the legal parameters, privileges and authoriLee, part of St. Francis counties ties afforded the body, the more effective the body will be. From a Public Service: broader perspective, I think it’s important that we serve not only to House 2011 help ensure legal compliance, but because the legal community has a rich history of servant-minded professionals who understand we have a responsibility to give back to our community. I, like many of my colleagues, both in and out of the legislature, have given tirelessly of our time and expertise to help people in our communities who needed it. I have been honored to have been recognized by my peers on three separate occasions as an Arkansas Volunteer Attorney of the Year. Every community in our state is home to attorneys who do the same type of pro bono work and volunteer themselves to make those communities a better place to live. When we combine our love of community and willingness to help others with the legal expertise necessary to understand the process, we can make valuable members of the legislative body.”

Why is it important for lawyers to serve in the legislature? “I have had the honor of serving with some wonderful individuals in the Arkansas State Legislature. Some are attorneys, others are of different professional backgrounds. While the diversity of individual experiences and backgrounds offers a great insight that is useful and desirable to the formation of public policy, lawyer-legislators offer specialized knowledge of existing law and professional experience in dealing with legal issues, and have an awareness of potential constitutional questions and other matters involved in possible new laws before the legislature. More than any other profession, ours is a profession that closely follows, implements, and works with the laws that are passed in the state legislature. I think it’s important and necessary for individuals to contribute to society, and a background in the study and practice of law has much to offer when making new policies for our constituents. “If you’re making sausage, it helps to be a butcher.” Senator Steve Harrelson District 21: Little River, Miller, Lafayette, part of Sevier, part of Columbia, and part of Hempstead counties Public Service: House 2005, 2007 (Majority Leader), 2009 (Majority Leader), Senate 2011

Vol. 46 No. 1/Winter 2011 The Arkansas Lawyer


Senator Jeremy Hutchinson District 22: part of Saline and part of Pulaski counties Public Service: House March 2000, 2001, 2003, 2005; Senate 2011

Why is it important for lawyers to serve in the legislature? “Lawyers should serve in the legislature because of the expertise that they bring to lawmaking. Each lawyer-legislator is already Senator well familiar with certain areas of the law. Moreover, lawyers alDavid Johnson ready understand the order and effect of all forms of law - statuDistrict 32: part of Pulaski county tory, regulatory, state case law, and constitutional law. That unPublic Service: derstanding is critical as lawmakers debate the eventual effects House 2005, 2007; Senate 2009 of a bill. Legislator-lawyers can craft well-constructed statutes. Lawyer-legislators with litigation experience in particular are already accustomed to finding holes in statutes. They appreciate the nuances of language, and they anticipate the level of scrutiny that lawyers and courts will give a statute. They can craft bills to comprehensively address intended situations and avoid interpretation problems down the road. People trained in the law are well-equipped to be lawmakers. The legislature benefits from a wide variety of backgrounds among its members to develop policy; lawyer-legislators are uniquely positioned to turn good policy into good law.”

Senator “Jim” James Luker District 17: Cross, Monroe, Woodruff, part of Crittenden, part of Francis, part of Lee and part of Phillips counties Public Service: Mayor & City Attorney of Wynne, House in 1995, 1997, 1999; Senate 2003, 2005 Asst. Pro Tempore; 2007; 2009

Why is it important for lawyers to serve in the legislature? “I do not believe lawyers necessarily have any better ideas but I do think lawyers are better able, because of their training, to identify and analyze complex issues and to use language to achieve the desired result while avoiding unintended consequences. Also, because of their training lawyers can be more effective in negotiations and mediations between competing interests when compromise is called for, or in effectively communicating and advocating for a particular position.”

Why is it important for lawyers to serve in the legislature? “Legislative service by attorneys is important for two reasons. Senator First, lawyers make good legislators. We deal with the results of Robert Thompson lawmakers’ actions every day, and we recognize problems with District 11: bills that non-lawyers do not. The staff attorneys who work Clay, Greene, Lawrence, and part of for the legislature, at the Bureau of Legislative Research, are Craighead counties required to be neutral as to the wisdom of legislation, and can Public Service: only offer lawmakers advice on the drafting and sometimes House 2005, Senate 2007, 2009 the constitutionality of their bills. A lawyer-legislator can tell a colleague, frankly and honestly, ‘Your bill has problems, and here is why.’ That sort of advice is common and vital to the legislative process. Second, it is important for attorneys to serve in the legislature so our profession is represented. Every session I have served in the House and Senate, legislators have introduced bills that impact the practice of law, in good and bad ways. If lawyers are not willing to serve, we lose our seat at the table when these important decisions are made.” 22

The Arkansas Lawyer


Arkansas Bar Association Members:

Nationwide Legal Research

Fastcase is free to members of The Arkansas Bar Association. More than just a comprehensive law database, Fastcase's suite of smarter research tools makes your work simpler, smarter, & more effective. Sign in today at

Fastcase Mobile

Visualization Tools

Smarter Sorting


State Courts from all 50 States (1950 or older) Supreme Court decisions from 1 U.S. 1 (1754) Courts of Appeals decisions from 1 F.2d 1 (1924) District Court decisions from to 1 F. Supp. 1 (1932) Bankruptcy Court decisions from to 1 B.R. 1 (1979)

SMARTER SEARCHING. Six different ways to sort search results (e.g.relevance, date, etc.) Integrated Authority Check tells you how often each case has been cited Easily print single or multiple documents in clean, dual-column format Visualize search results with Interactive Timeline


Live Chat 7am-7pm CDT

What is Fastcase?

Fastcase is a next-generation legal research service, that puts the complete national law library at your fingertips. Fastcase’s smarter searching, sorting, and visualization tools help you find the best answers fast – and help you find documents you might have otherwise missed. To learn more, visit

Vol. 46 No. 1/Winter 2011 The Arkansas Lawyer


December 2010

Board of Governors Meeting

The Board of Governors of the Arkansas Bar Association is invested with the authority to conduct the business and management of the Association. The Board is composed of seven officers, eighteen governors elected from districts, three appointed at-large governors, and seven liaison non-voting members. Six new governors are elected each year, and one of the at-large governors is appointed each year. For more information on the election process see page 26 or go to and click on About Us for petitions. 24

The Arkansas Lawyer

2010-2011 Arkansas Bar Association Officers President: Jim L. Julian Board of Governors Chair: Sean T. Keith President-Elect: Tom D. Womack Immediate Past President: Donna C. Pettus President-Elect Designee: Charles L. Harwell

Secretary: F. Thomas Curry Treasurer: William A. Martin Parliamentarian: Charles D. Roscopf Young Lawyers Section Chair: Brandon Moffitt Vol. 46 No. 1/Winter 2011 The Arkansas Lawyer


A Call to Leadership in the Arkansas Bar Association Spring 2011 Schedule of Elections Nominating Petitions The House of Delegates and Board of Governors address matters important to the legal system, our Due March 31, 2011 Association and every attorney in Arkansas. For example, the House decides Association policy on new initiatives before the Arkansas Supreme Court and on legislation before the General Assembly affecting the legal system. Recent examples include rules governing electronic discovery and the Association’s legislative package. The Board handles the business aspects of the Association and tracks trends affecting the legal profession. Being in the House or on the Board is a chance to get acquainted with lawyers all over the state, to be recognized as the representative of lawyers within the individual’s district, and to help shape the future of the profession. Election Process For both Delegates and Governors a nomination petition, signed by three current members of the Association who reside in the geographical area of election, must be filed with the Secretary at the Arkansas Bar Association, 2224 Cottondale Lane, Little Rock, AR 72202, no later than March 31, 2011. A sample petition is available from the Association’s office or website. The petitions, current members of both bodies, and district maps are listed on the Association’s webite at under the “About Arkbar” tab for each governing body. YLS uses the three state bar districts (A,B,C) that are also utilized by the House of Delegates as listed in Article 4, Section 4 of the Constitution.

Board of Governors District County(ies) 1 Governor to be elected 3-BG Arkansas, Ashley, Chicot, Cleveland, Crittenden, Cross, Desha, Lee, Lincoln, Monroe, Phillips, Poinsett, Prairie, St. Francis, Union 5-BG Garland, Saline, Hot Spring, Grant, Dallas 6-BG Benton 7-BG Washington 15-BG Pulaski 16-BG Pulaski All Are Three-Year Terms Qualifications for Board of Governors The attorney must reside in the geographical area for the Governor’s position and must have served one year in the House of Delegates or must have been an Association member for seven years by the time of joining the Board of Governors in June.

Young Lawyers Section YLS Chair-Elect, Secretary/Treasurer & District Representatives Nominating petitions Must be Filed by April 1, 2011 For more information on nominations and qualifications of officers go to What’s New on The YLS Officers shall be elected by the majority of those present and voting at the Annual Meeting of the Young Lawyers Section, which will occur during the Association’s June Annual Meeting. Chair-Elect elected from District A (one-year term) Secretary/Treasurer elected from any District (one-year term) Representative District A (three-year term) Representative District B (three-year term) Representative District C (three-year term) Representative District C (one-year term)


The Arkansas Lawyer

House of Delgates District County(ies) No. of Delegates to be elected A-1 Benton 1 Delegate A-2 Washington 4 Delegates A-3 Crawford, Sebastian, 2 Delegates Franklin & Johnson A-4 Polk, Scott, Logan, Yell, 1 Delegate Perry & Conway A-5 Madison, Carroll, Boone 1 Delegate & Newton B Pulaski 10 Delegates C-3 Craighead 1 Delegate C-5 Crittendon, Cross, 1 Delegate St. Francis, Woodruff, White & Cleburne C-7 Lonoke, Prairie & Monroe 1 Delegate C-8 Grant, Jefferson, Arkansas, 1 Delegate Lincoln, Phillips & Lee C-9 Dallas, Cleveland, Ouachita, 1 Delegate Calhoun, Bradley, Drew, Ashley, Desha, Chicot, Columbia, & Union C-11 Montogmery, Howard, Pike, Clark 1 Delegate Sevier, Little River, Hempstead, Nevada & Lafayette Garland 1 Delegate C-12 C-13 Saline & Hot Spring 1 Delegate All Are Three-Year Terms Qualifications for House of Delegates The attorney must be an Association member residing within the Delegate District as defined by Article XVI Section 2 of the Association’s Constitution.

You know your clients. We know planned giving. Let’s work together. Jean Smith is 70 years old and wants to establish a charitable gift annuity to support the causes she cares about, while providing an income stream during her lifetime. She wants to contribute stock currently valued at $10,000 that she and her late husband purchased for $2,000. How much income will Jean receive each year during her life? What percentage is considered tax-free income? What immediate

Arkansas Community Foundation Partners with Professional Advisors When you partner with ARCF, you stay in control of your client relationships, and we provide the resources and expertise to help you give your clients charitable giving options tailored to their needs. Clients like Jean Smith receive the maximum tax benefits for their charitable gifts and can leave a permanent philanthropic legacy. Contact us now to set up a one-on-one consultation with our professional staff.

income tax deduction can she claim? Take the hassle out of planned giving. Let us run the numbers for you.

Union Station 1400 W. Markham, Suite 206 Little Rock, AR 72201 501-372-1116 • 888-220-2723 •

CEO Heather Larkin, JD, CPA Vol. 46 No. 1/Winter 2011 The Arkansas Lawyer


Usury in Arkansas: Something Old, Something New by W. Christopher Barrier “The Arkansas constitutional amendment now numbered 89, which was adopted by voters on November 2, 2010 (the “Amendment”) took effect on January 1, 2011.”

The Arkansas constitutional amendment now numbered 89, which was adopted by voters on November 2, 2010 (the “Amendment”) took effect on January 1, 2011.1 It provides relief from Arkansas’s antiquated usury laws to extenders and accepters of credit in three categories and in three different ways. Benefited are: (1) issuers and underwriters of governmental bonds of all kinds; (2) state and national banks headquartered in Arkansas; and (3) everybody else, (including out-of-state lenders branching into Arkansas). The Amendment allows cities, school districts and all other governmental borrowers in category one to let market forces determine the rate of interest to be paid on their bonds, specifically and generally, with no ceiling. Those Arkansas-based banks in category two have had virtually no limits on commercial loan interest rates, except market forces, due to the federal preemption of Arkansas’s limits, allowing use of the homestate rates of out-of-state banks branching into Arkansas. Those out-of-state banks can still go to some trouble to be able to import their own home-state rates into Arkansas loans, but they now can simply observe an uncomplicated 17 percent limit, as may automobile dealers, appliance stores and other non-bank extenders of credit in category three. Double pre-emptions… The Arkansas-specific federal pre-emption 28

The Arkansas Lawyer

that removed any practical limit on the rates those Arkansas-based bank lenders could charge in fact evaporated at midnight on December 31, 2010, with the champagne bubbles, as there was no longer “any state” with Arkansas’s pre-Amendment interest rate regulatory scheme.3 However, no other pre-emptions, such as those covering first mortgage residential loans, were disturbed by the Amendment.4 In place of that pre-emption is a constitutional snapshot of the rates that the preemption produced, as they were on March 1, 2009, just as if those numbers had been inserted verbatim into the Amendment and, hence, the Arkansas constitution. Imported rates… Arkansas-based lenders and their lawyers have understood that the pre-Amendment federal pre-emption allowed them to use the laws of Alabama and other states with banks branching into Arkansas to determine interest rate limits.5 In simplest terms, the Amendment will fix in place the Alabama rate structure as of that magic 2009 date, which will mean no limit on interest rates for most loans including those represented by credit cards and savings accounts.6 That structure will remain in place even without a federal pre-emption. It would even survive the revision or repeal (however unlikely that may be) of Alabama’s current rate structure because the Amendment adopts those numbers, not Alabama law. Out-of-state branching banks, as noted, no longer have to be concerned about importing their home-state rates unless their desired rates edge close to 17 percent.7 That is because that number is the only real limit left. Municipal bonds will be allowed to bear interest at any rate the market dictates, as will loans by Arkansas-based lenders who

are insured by the FDIC, all without any reference to the 17 percent limit and the penalties for violations set out in Section 6(b) of the Amendment. The municipal bond rate feature should make it easier for governmental borrowers, including colleges and universities, to place their bonds on a “bank qualified” basis with local banks.8 The 17 percent solution returns… Every other lending transaction will be free of limits other than the 17 percent cap, except that lenders branching into Arkansas can either adopt their home-state rates, as they do now,9 or stay under 17 percent. Non-banks will simply need to observe that ceiling, unless they can legitimately choose some other state’s law as to permissible interest rates, as insurance companies, car dealers and multi-state retailers sometimes can do now.10 As noted, the Amendment will produce several clear-cut changes in the governmental borrowing landscape. Section 1 specifically removes any limits on the interest rate which can be borne by governmental bonds, including those issued by city libraries (Amendment 30), county libraries (Amendment 38), and by local governments for capital improvements (Amendment

W. Christopher Barrier practices real estate and business law with Michell, Williams, Selig, Gates & Woodyard, P.L.L.C. in the firm’s Little Rock office.

62) and also revenue bonds (Amendment 65) and redevelopment district bonds (Amendment 78). However, the removal of limits by Section 1 also applies to any other bonds issued by “governmental entities,” which term includes school districts and improvements districts of all kinds. Amendment 78’s shortterm loans to city and counties also would have no limits. Energetic bonds… Section 4 would allow “governmental units” to issue bonds to finance “energy efficiency projects,” such as storm windows and insulation. This Section makes it clear that the issuer can pledge its energy savings to support the bonds, but use of this Section will require that the General Assembly authorize a program. (The other Sections are self-executing as to permissible rates but are subject to the authority of the General Assembly to intervene and set rate limits, although, as a matter of history, that may well not happen.) Section 5(b) of the Amendment provides a definition of “Federal Reserve Primary Credit Rate,” the current incarnation of the Federal Reserve Discount Rate, a term with its origin in federal banking law and imbedded in the Arkansas constitution by Amendment 60. The term appears nowhere else in the Amendment, so it is surplusage, but it does call attention to the fact that the only relevance of the term would be in connection with a variable index of some sort such as that contained in Article 19, § 13 as a result of Amendment 60 (five points over the discount rate and so on).

Freedom of contract… Floating rates charged on category three credit which are based on indexes of some sort are still allowed as a matter of contract, so long as they never exceed a 17 percent ceiling.11 The Amendment does not clearly authorize a “life of the loan” calculation, either as to floating rates or discounts and origination fees, but careful drafting should allow it. Conditional rates that rise to the new maximum, such as post-default or at maturity, are permissible, since a new balance due arises going forward. Belt and suspenders… While Section 1 of the Amendment “removes” interest rate limits as to bonds, including those limits in Article 19, § 13, Section 14 goes on to strike Article 19, § 13 in its entirety, which eliminates mandatory indexes altogether, for all loans. This total elimination of mandatory indexes renders moot concepts such as “time of the contract.” Any distinction between “general” and “consumer” loans disappears altogether. Left in place are matters such as calculating errors, methods of calculation and genuineness of commitment fees.12 Discounting, indirect lending, callable loans, collateral agreements, charge accounts, renewals, pre-payments, choice of law, remaking usurious loans, contingencies, participations, late charges, intent, credit insurance, costs of doing business — all of these issues also remain relevant,13 but within the 17 percent shadow. Back to the future… The calculation of penalties, as with mul-

tiples of interest paid, also disappears along with the current version of Article 19, § 13. In its place is decades of jurisprudence surrounding the old 10 percent limit, complete with forfeitures, but with a 17 percent ceiling instead of a 10 percent one.14 In fact, for loans unrelated to bonds and local banks, the easiest way for lenders and their lawyers to get their heads around this new era may be to go back thirty years to the old law, with a new critical number, 17 instead of 10. That may not be a pleasant task, but the major exceptions and the higher limits ought to make that exercise bearable. Endnotes 1. The Amendment had to survive a challenge in state court which claimed its ballot title was defective and that it impermissibly dealt with more than one issue. April Forrester, et al. v. Charlie Daniels, Secretary of State, Pulaski County Circuit Case No. CV 10-5592. The trial court dismissed the challenge on election day, November 2, 2010, and notice of appeal was entered a month later. As of the deadline for publication of this edition of The Arkansas Lawyer, that appeal was still several months away from a decision. However, based on comments of constitutional scholars familiar with the case, the editorial board elected to publish the article as if the appeal had been dismissed, rather than delaying getting this article to Association members for as much as sixth months.

Usury continued on page 50

Modern amenities meet historic charm in this beautifully renovated Hillcrest home! • • • •

3 Bed / 3 Bath + NEW 3 car garage Solid granite countertops & stainless appliances Large windows & luxury features throughout Oversized lot in Historic Hillcrest near Little Rock’s Allsopp Park THE HILLCREST EXPERTS!

Call John Selva 501-993-5442 Visit for a video tour Vol. 46 No. 1/Winter 2011 The Arkansas Lawyer


Arkansas Supreme Court Historical Society

Supreme Court Justice and Governor Henry M. Rector By L. Scott Stafford Henry M. Rector was notable, and he served on the Arkansas Supreme Court, but no historian would classify him as a “notable justice” of the high court. Rector was born in 1816 in Kentucky. His education consisted of home schooling by his mother followed by two years at a private school in Louisville. In 1835 he moved to Arkansas where his deceased father had owned land. Around 1839, while managing a plantation in Saline County near the Pulaski County border, he read law and received his law license. From 1848 to 1852 Rector represented Saline and Perry Counties in the Arkansas Senate. He moved to Little Rock in 1854 where he practiced law and represented Pulaski County for one term in the Arkansas House of Representatives. He continued to practice law until 1859, when the General Assembly elected him one of three justices on the Supreme Court. After fifteen months of unremarkable service on the high court, Rector resigned and announced his candidacy as an Independent Democrat for governor. At that time the regular Democratic Party was controlled by a group of related politicians popularly known as the “Family“ because many of its candidates came from the interrelated Conway, Johnson, and Sevier families. Rector received support from anti-Family voters and narrowly defeated Richard H. Johnson, the Family’s candidate, at the August 1860 general election. Although the election had focused on personalities rather than issues, when Rector was sworn in on November 15, 1860, he immediately called for Arkansas to join other southern states that were threatening to secede from the union. After dithering for several months the legislature scheduled an election to choose delegates to a convention that would “determine what course the State of Arkansas should take in the present political crisis.” The delegates met in March 1861 but were unable to reach a consensus on secession. After Confederate forces fired on Fort Sumter and President Abraham 30

The Arkansas Lawyer

Lincoln issued a call for volunteers, the convention reconvened in May 1861 and voted to withdraw Arkansas from the union and join the Confederacy. The delegates then stayed in session and over the next month drew up a new state constitution. Among the delegates were Family supporters who resented Rector’s 1860 challenge of “their” candidate for governor, as well as pro-Union delegates who objected to Rector’s highhanded support of secession. These factions worked together to slip a provision in the new constitution that cut two years off the four-year term to which Rector had been elected in 1860. As the 1862 election approached, Rector refused to issue an election proclamation that included the office of governor. Christopher C. Danley, editor of the Arkansas Gazette, and Richard H. Johnson, Rector’s opponent in the 1860 election, filed suit in Pulaski County Circuit Court to force a gubernatorial election. When the circuit judge refused to order an election, the two appealed to the Supreme Court. The case is reported as Ex parte Danley and Johnson, 24 Ark. 2 (1862). Rector argued, in effect, that the constitution was unconstitutional – i.e., that the convention that adopted the Constitution of 1861 had no authority to replace the Constitution of 1836. If successful, then Rector, who had been elected to a fouryear term in 1860 under the Constitution of 1836, could not be replaced until the 1864 election. This argument put Rector’s former colleagues on the Supreme Court in a difficult position. The court purported to be a branch of government created by the Constitution of 1861, and all three justices had sworn to uphold that constitution. If the court invalidated that Constitution of 1861, then it simultaneously called into question the court’s own existence. The court had little choice but to declare that the validity of the constitution was a political question which the judicial department was not competent to consider. The court therefore applied the language of the 1861

Constitution and ordered that the governor’s race be placed on the ballot at the next election. Rector responded to the decision with a defiant address in which he accused the court of collaborating with his political opponents. At the October 1862 general election, he was easily defeated by Harris Flanagin, an Arkadelphia lawyer then serving with the Confederate Army in Tennessee. After leaving the governor’s office, Rector unsuccessfully tried to obtain a commission in the Confederate Army. After the war ended, he devoted most of his time to managing his various plantations around the state. He was a delegate to the 1874 Constitutional Convention but otherwise seems to stayed out of the public eye until his death in 1899.

Additional reading: Donovan, Gatewood, and Whayne, eds., The Governors of Arkansas: Essays in Political Biography. 2d ed., Fayetteville: University of Arkansas Press, 1995. Ex parte Danley and Johnson, 24 Ark. 2 (1862). Stafford, The Arkansas Supreme Court and the Civil War, 7 Journal of Southern Legal History 37 (1999).

This article is provided by the Arkansas Supreme Court Historical Society, Inc. For more information on the Society contact Rod Miller, Arkansas Supreme Court Historical Society, Justice Building, Suite 1500, 625 Marshall Street, Little Rock, Arkansas 72201; Email: rod.miller@; Phone: 501-682-6879.



CLE Calendar 50th Annual Natural Resources Law Institute February 24-25, 2011, Hot Springs 2nd Annual Northwest Arkansas Conference March 4, 2011, Rogers Labor & Employment Law March 14-15, 2011, Little Rock Criminal Law April 1, 2011, Little Rock

The Arkansas Bar Association Construction Law Section and Corporate and In-House Counsel Section and Friends of the NW AR Conference present:

E-Discovery April 8, 2011, Little Rock Bankruptcy April 14-15, 2011, Little Rock 15th Annual Environmental Law Conference April 28-30, 2011, Little Rock Arbitration & Mediation Advocacy Workshop May 4, 2011, Little Rock Workers Compensation May 13, 2011, Little Rock

Arkansas Bar Association 113 t h Annual Meeting JOINT MEETING WITH THE ARKANSAS JUDICIAL COUNCIL

2011 Annual Meeting June 8-11, 2011 Hot Springs

Second Annual NW Arkansas Conference March 4, 2011 • Corporate & In-House Counsel Practice

• Construction Industry Conference


Program Chairs: Jack East III Andrea G. Woods

Touchdown Arkansas Bar!

Best of CLE June 20-24, 2011 Little Rock

Best of CLE-NW June 29-30, 2011 TBA

For more information contact Lynne Brown or Kristen Scherm 800-609-5668 or 501-375-4606 or OR go to

Embassy Suites 3303 Pinnacle Hills Parkway Rogers, AR

Up to 6.5 CLE Credit Hours Including 1.0 Ethics Hour Vol. 46 No. 1/Winter 2011 The Arkansas Lawyer


Thank You 2010 Volunteer CLE Speakers and Program Planners


Raising the Bar with


Tradition, Integrity & Trust

Joint Meeting with the Arkansas Judicial Council

June 9-12, 2010

Arlington Hotel & Hot Springs Convention Center 1

It is only through their generous contributions of time, energy, talent and experience that Association seminars can be a success. We deeply appreciate their work.


The Arkansas Bar Association Civil Litigation Section and International and Immigration Law Section present:

First Annual NW Arkansas Conference

• Evidence For Trial Lawyers: An Update of Irving Younger’s Classic Presentation • Immigration Law

March 5, 2010 Program Planners: Evidence David W. Sterling

Immigration Donna S. Galchus Kathy W. Goss

Opening Reception Enjoy Networking & Entertainment Thursday, March 4th, 2010 6:00 - 8:00 p.m.

Embassy Suites 3303 Pinnacle Hills Parkway Rogers, AR

6.0 CLE Credit Hours Including up to 1.5 Ethics Hrs


May 7-8, 2010

The Environmental Law Section of the Arkansas Bar Association presents:

14th Annual Environmental Law Conference


Program Planners: Chris H. Kinslow, Chair dawn R. Guthrie Nelson E. Jackson Matthew N. Miller

Embassy suites 3303 Pinnacle Hills Parkway Rogers, AR 12.0 CLE Credit Hours Including 1.0 Ethics Hour

April 29-30, 2010 The Arkansas Bar Association Debtor Creditor Law Section presents:

14th Annual Bankruptcy Debtor/Creditor Law Institute Don’t Strike Out In Bankruptcy!

Ballgame & Dinner at Dickey-Stephens Park (Ticketed Event) Program Planners: W. Lance Owens, Chair Lyndsey d. dilks dana M. Landrum Patt Pine


UALR Bowen School of Law 1201 McMath Ave. Little Rock, AR

Allison R. Allred Shirley S. Abrahamson John T. Adams Arthur Ahalt Jason Alford Kenneth Anderson Joyce Bradley Babin Amber Wilson Bagley David Bailey Rita F. Bailey Craig Ball Gary Barket Steve Barnes Salome Barrientos W. Christopher Barrier Ben T. Barry David Basham Stephen Baskerville Governor Mike Beebe Theresa M. Beiner James Belanger Lawrence E. Bengal Brewster Bevis Calvin Biggers David Black Scott Bles Eldon Bock Will Bond Misty W. Borkowski Amy Blackwood Boroughs David R. Bossart Marcus N. Bozeman Ellen B. Brantley S. Renee Brida Howard W. Brill Brian G. Brooks Robert L. Brown Bettina E. Brownstein Barry A. Bryant Randall S. Bueter Kimberly D. Burnette Wil Burns George Butler Rhett G. Campbell

9.5 CLE Credit Hours Including 1.0 Ethics Hour

The Arkansas Lawyer

Ellen Carpenter Jason Carter William A. Cash Jerry W. Cavaneau Sarah Cearley Nathan P. Chaney Kermit B. Channell Vera M. Chenault Joseph Cheshire Cory D. Childs Natalie Choate Damon Circosta Steven Clark Chris Colclasure Jon B. Comstock James P. Cooney Scott Copas Dorcy Corbin Chris P. Corbitt Nicolas E. Corry Erin Couch Kevin A. Crass John Bruce Cross Junius Bracy Cross Robin Crow Gregory L. Crow Julie Cullen Tim Cullen J. Cotten Cunningham C. Michael Daily Thomas A. Daily Paul Danielson Lamar B. Davis Leslie Davis Beth M. Deere George M. DeLoache Lyndsey D. Dilks John M. A. DiPippa Pamela B. Dixon Melissa McJunkins Duke Xollie Duncan Stephen D. Easton Khayyam Eddings John C. Edwards

Causley Edwards Joycelyn M. Elders George D. Ellis Stephen Engstrom Edie R. Ervin Bob Estes Audrey R. Evans Melanie Ewell Jamie Leigh Ewing David Ferguson Janet A. Flaccus William Doug Ford Lynn Foster Debbie Foster Rick Fought G. Spence Fricke Donna S. Galchus Michael E. Gans Allan Gates Timothy G. Gauger Dominic J. Gianna Charles W. Goldner James F. Goodhart Jack W. Gooding Amy Grimes Timothy W. Grooms Mary Ann Gunn Dawn R. Guthrie Jenna Hamilton Lauren W. Hamilton Frank S. Hamlin Phillip Hampton Sybil Jordan Hampton Jeff Hankins James R. Hannah Betty J. Hardy Richard Harp Morril H. Harriman Christian Harris Brandon J. Harrison Raymon B. Harvey Richard F. Hatfield Stacy M. Hazell Vincent Henderson

Judy Simmons Henry Robert L. Henry Emily J. Henson Andrea Henson-Armstrong Guillermo Hernandez Mauricio A. Herrera Carrol Ann Hicks Jodie Lynn Hill Anthony A. Hilliard Mark Hodge Kristin Hodge J. Leon Holmes Robert M. Honea Colette D. Honorable Ronald K. Hooks Jenniffer Horan Claudia V. Hosch Joel Howard Parker Sanders Huckabee D’lorah L. Hughes Harry S. Hurst William “Bill” O. James David E. Johnson J. Leon Johnson Bonnie J. Johnson Curry Jones Jamie Huffman Jones Larry Jones Phyllis M. Jones Robert L. Jones Leon Jones Donald P. Judges Jim L. Julian Patti Julian Jerome T. Kearney Kevin P. Keech Hal Joseph Kemp David S. Kennedy Summer Kersey Shane E. Khoury H. Baker Kurrus Theodore C. Lamb Michael Lamoureux C. Wesley Lasseigne

Patrick Lee Kevin M. Lemley Harry A. Light Alice Lightle Stark Ligon Adriana Linares Robert Lindley Eli Loebenberg Bryan G. Looney Jim C. Luker John A Lupton Mike Lybrand Robert M. Lyford Shannon Lynn David E. Mackey Eva C. Madison Michael A. Maggio Gavin Manes Lisa Marcy David Margulies Teresa Marks Dustin B. McDaniel J. Cliff McKinney Bobby McKinstry James Bruce McMath Brian J. McNamara Jack A. McNulty David Medinets Matthew N. Miller Matthew B. Miller Stan D. Miller Shannon Mirus James G. Mixon Brandon K. Moffitt Magdeline Momani Crissy Monterrey Leo Monterrey Leonardo A. Monterrey James M. Moody Kristi M. Moody

Michael S. Moore Philip Moore Harry Truman Moore Rodney P. Moore Charles A. Morgan Richard Vincent Morris Forrest “Woody” Mosten Rosalind M. Mouser Tara Mullins Cynthia E. Nance J. Richard Newland Todd L. Newton Jim Nickels Steve H. Nickles Michael C. O’Malley Kelly Olson Ellen Ostrow Don Overton Charles C. Owen W. Lance Owens Daniel L. Parker Cordell Parvin Sally Paulson Joyce Perser Philip A. Pesek Donna C. Pettus John G. Phillips Patt Pine Harrison M. Pittman Joshua J. Poje Ines Polonius Richard Pope David M. Powell Troy A. Price Philip R. Principe Jeff Puryear William B. Putman Clair Ramsay William T. Ramsey Lynne T. Ravellette

Warren Readnour Charles R. Redd Brian D. Reddick Matthew Reel Dorsey Roach J. Mark Robinette Renia Robinette James A. Roller Jeff Rosenzweig Mark L. Ross Yan Ross David B. Rottman Bianca Gatchell Rucker Chapen Rucker Gwendolyn L. Rucker Elizabeth Rumley Rusty Rumley David J. Sachar Steve Sawicki Mary M.White Schneider R. Doug Schrantz John R. Scott Danielle Shafer Scotty M. Shively H. Brock Showalter Ashley Shows Cheryl F. Shuffield Terry Sligh Shaneen K. Sloan Keesa M. Smith Wade M. Smith O. C. Sparks Brenda N. Stallings R. Shane Strabala Jess Sweere Kathy Hickman Tanner Timothy R. Tarvin Jennifer Jones Taylor Richard D. Taylor Stuart Teicher

Mary Ellen Ternes David Tesler Nick Thompson Robert F. Thompson Charles Eugene Thompson Joseph W. Thompson Annabelle Imber Tuck Charles W. Tucker John E. Tull Cathy Underwood Brian A. Vandiver Vicki S. Vasser Larry D. Vaught Jack Wagoner Danyelle J. Walker Kent R. Walker Edward O. Walker Esther Walker Shellie L. Wallace Joyce Williams Warren Anna Hughes White Matthew L. White Shane M. Wilkinson Darrin L. Williams Susan P. Williams Robert D. Wills Reba M. Wingfield Rhonda K. Wood Andrea G. Woods Robert W. Wright Randall G. Wright Dennis Wysocki John R. Yates Melanie Yelder Alan J. York Elizabeth Young H. Wayne Young Randy Young Steven S. Zega

Mid-Year Meeting

January 21-22, 2010 Peabody Hotel Memphis, TN Mid-Year Chairs: Lori L. Holzwarth J. Cliff McKinney, II

Maximum 9.25 Hours CLE Offered Including 4.0 Ethics Hours

C LE The Arkansas Bar Association Natural Resources Law Section and the American Association of Professional Landmen present:

49th Annual Natural Resources Law Institute February 24-26, 2010

Program Planners: John F. Peiserich Robert M. Honea

Hot Springs Convention Center 134 Convention Blvd. Hot Springs, AR

Arkansas Alternative Dispute Resolution Commission

8.0 CLE Credit Hours includes 1.0 Ethics Hours

Arkansas Bar Association Alternative Dispute Resolution Section

Arkansas Conflict Resolution Association

Illustration Acknowledgements: “Warmed Up Into a Quarrel” by John Harley. From Mark Twain: Life on the Mississippi. Boston, James R. Osgood and Company, 1883.

The Alternative Dispute Resolution Process Today Friday, March 12, 2010 Crowne Plaza Hotel 201 south shackelford Road • Little Rock, AR 72211 Program Planners: Jennifer Jones Taylor, Chair Stanley M. “Jack” Bell Donna Blythe Clawson Carol E. Collins

Cyril Hollingsworth Phyllis Hall Johnson Scotty M. Shively Angelia J. Tolbert

6.0 CLE Credit Hours includes 2.0 Ethics Hours 6.0 Hours CME Credit

Program Planners: Junius Bracy “J.B.” Cross, Chair Gregory L. Crow Don Culpepper Allen C. Dobson Jack East III Andrew B. Faulkner David A. Grace

Rob Hileman Cyril Hollingsworth Julie Mills J. Richard Newland David M. Powell J. Dewey Watson Andrea G. Woods

Thursday, February 11, 2010 Embassy Suites Hotel 400 Convention Boulevard Hot Springs Friday, February 12, 2010 Networking Day at Oaklawn (Ticketed Event) 6.25 CLE Credit Hours includes 1.0 Ethics Hour Cover design by Lori Sanchez, Arkansas Homebuilders Association

Arkansas Bar Association 113 th Annual Meeting JUNE 8-11, 2011 HOT SPRINGS



Touchdown Arkansas Bar! Vol. 46 No. 1/Winter 2011 The Arkansas Lawyer


Justice Robert L. Brown Community Support Award

Times of stress and difficulty are seasons of opportunity when the seeds of progress are sown. --Thomas IF. Woodblock The Arkansas Judges and Lawyers Assistance Program proudly announces that Justice Robert L. Brown is the first recipient of the JLAP Community Support Award, which henceforth will be known as the Justice Robert L. Brown Community Support Award. Justice Brown has shown a long commitment to building and sustaining a program to improve lives and protect communities through supporting the health and well-being of judges, lawyers, and their families. The genesis of this commitment began many years ago. Back in the 1990s, tireless efforts on the part of a small cadre of lawyers brought forth a program through which the legal community of Arkansas began taking care of its own — men and women who were going through difficult times, addictions, and/or mental illness. This group of lawyers knew that when their colleagues suffered they did so alone; that most folks neither knew how to talk about such things nor how to help. In that same decade, there were three suicides, a lawyer and two judges, all well known, respected, and loved. In the aftermath of these tragedies, that small group — lawyers from the Pulaski County Bar Association, the Arkansas Bar Association, and the recovering community — were galvanized to push harder than ever to create a lawyers assistance program that would be staffed by mental health professionals who would know what to say and how to help. They petitioned the Arkansas Supreme Court, and there the program found a champion in Justice Robert L. Brown. As the Supreme Court’s liaison to the Office of Professional Programs, Justice Brown chose to be the person on the court charged with presenting the petition to his colleagues during the court’s regular monthly business meetings. His active involvement 34

The Arkansas Lawyer

in the process of studying other similar programs in sister states and keeping the issue before the court resulted in the issuance of a per curiam order on July 7, 2000, proposing the creation of the Arkansas Lawyer Assistance Program. After the expiration of a 90-day comment period, the Program was formally adopted by per curiam order on December 7, 2000. Justice Brown recently talked about the beginnings of the program from the court’s perspective. It was an appeal from a decision by the Arkansas Board of Law Examiners denying the request of a licensed pharmacist and law school graduate who had passed the Arkansas Bar examination, for admission to the Bar of Arkansas. (In re Application for Admission to the Bar of Arkansas of Mark Ashley Crossley, 310 Ark. 435, 839 S.W.2d 1 (1992).) Justice Brown, writing for the court, reviewed the applicant’s treatment for drug dependency, including his participation in the Arkansas Pharmacy Support Group. While enrolled in the Pharmacy Board’s after-care program, he attended law school and passed the bar examination. His admission to the bar, however, was postponed until the applicant proved himself to be “of good moral character and mentally and emotionally stable.” (See Rule XIII(A) of the Rules Governing Admission to the Bar.) Ultimately, the Arkansas State Board of Law Examiners determined that he was ineligible for admission to the Bar of Arkansas. The Arkansas Supreme Court affirmed the Board’s denial of application for admission to the Bar, but left the door open for the applicant to “reapply after a sufficient period of sustained sobriety has passed.” In so holding, the Supreme Court acknowledged that “addiction to alcohol and drug substances is a disease.” Justice Brown said that the Crossley case allowed the court to consider the problem of chemical dependency in the context of assessing fitness to practice law. More importantly, the case raised the issue of how rehabilitation and recovery would be addressed in connection with a lawyer’s

admission or reinstatement to the bar. Over the past 10 years, Justice Brown has remained committed to the success of the Arkansas Judges and Lawyers Assistance Program. The best evidence of his constant commitment is reflected in the ten per curiam orders issued by the Supreme Court since the inception of the program. Significant contributions to the JLAP program provided by these orders include: •funding for the JLAP program •establishment of a revolving loan fund to assist lawyers in getting needed treatment •establishment of immunity for committee members and employees for their activities in assisting attorneys under the JLAP rules •continuation of the program beyond the provisional seven years •the addition of “volunteers” to the immunity provision in the JLAP rules •the authorization for JLAP to provide services to Arkansas law students. By virtue of Justice Brown’s persuasive and diligent efforts, the Arkansas Supreme Court has supported the establishment and continuation of the Judges and Lawyers Assistance Program — a program that exists to protect clients and the public from harm caused by impaired lawyers and judges, and to help lawyers, judges, and law students who are impaired by substance abuse, depression, and similar problems “so that they may be persuaded to obtain treatment to assist them to overcome their problems, recover, and return to being responsible, productive members of the legal profession and of society.” The program Justice Brown has so diligently shepherded is available to all licensed lawyers, judges, and law students in our state. You can find more information about services offered, the issues JLAP works with, confidentiality, and more on the website n

2011 Leadership Academy Congratulation to the twenty attorneys that have been selected to participate in the 2011 Arkansas Bar Association Leadership Academy. The inaugural class brings together a diverse group of attorneys from across the state who have been identified as emerging leaders. Participants attended the Opening Retreat in January, and will attend three additional sessions that focus on different areas of leadership that are designed to create a diverse network of lawyers with the knowledge, skills, and values to provide dynamic leadership to the profession, their communities, and the state. Amber Wilson Bagley

Jason L. Horton

Leon Jones, Jr.

Paul A. Prater

Keesa M. Smith

Cross, Gunter, Witherspoon & Galchus, Little Rock

Jason Horton Law Firm, Texarkana

Jones Law, LLC, Bentonville

Hosto, Buchan, Prater & Lawrence, PLLC, White Hall

Office of Governor Mike Beebe, Little Rock

Khayyam Eddings

Matthew R. House

Anthony W. Juneau

Friday, Eldredge & Clark, LLP, Little Rock

James, Fink & House, P.A., Little Rock

Mitchell, Williams, Selig, Gates & Woodyard, PLLC, Rogers

Amy Freedman

David L. Jones

Leslie J. Ligon

Wright, Lindsey & Jennings LLP, Little Rock

U.S. District Court / Western District of Arkansas, El Dorado

Wilson & Associates, PLLC, Conway

Coby W. Logan

Jay L. Shue, Jr.

The Law Offices of Amy Freedman, Texarkana

Hollie Greenway Rabal & Greenway, PLLC, Centerton

Paula Juels Jones Deputy Prosecutor, 23rd Judicial District, North Little Rock

Gwendolyn L. Rucker United States District Court, Little Rock

Jonathan P. Sellers

Jocelyn A. Stotts Barry E. Coplin, P.A., Little Rock

Vicki S. Vasser Matthews, Campbell, Rhoads, McClure, Thompson, & Fryauf, PA, Rogers

William Z. White

Arkansas Department of Finance & Administration, Little Rock

Arkansas Attorney General’s Office, Little Rock

Mays & White, PLLC, Heber Springs

Reduce Risk from Disability Cases Why expose your practice to unnecessary risk by taking on Social Security and SSI disability cases if a professional-to-professional referral will better serve your clients? Referring those cases to H. Mayo Smith, P.A., provides your client an attorney who has limited his practice to Social Security/SSI disability claims exclusively since 1986, who has a Master of Science Degree in Disability Evaluation, and who provides competent, compassionate representation on disability matters. Your practice will be safer, and you’ll have the knowledge that your clients understand that you act in their interest.

H. MAYO SMITH, P.A. 501.374.5605 Disability Law Serving the Hurt, Sick and Injured

600 W. 4th Street • Little Rock, AR 72201

“The Social Security Act is among the most intricate ever drafted by Congress.” It is “almost unintelligible to the uninitiated.” —Schweiker v. Gray Panthers Vol. 46 No. 1/Winter 2011 The Arkansas Lawyer


Judicial Disciplinary Actions & Attorney Disciplinary Actions The Judicial Discipline and Disability Commission issued the following Final Actions. Full text documents are available on-line at press_releases.html. January 14, 2011 Letter of Resignation In the Matter of Stanley Ludwig Cases No. 09312, 09323, 10165 November 19, 2010 Findings and Recommendations In the Matter of L.T. Simes Circuit Judge, First Judicial District Case No. 06-260/05/-123 Final actions from October 1, 2010, through December 31, 2010, by the Committee on Professional Conduct. Summaries prepared by the Office of Professional Conduct. Full text documents are available on-line at http://courts. and by entering the attorney’s name in the attorney locater feature under the “Attorney” link on the home page. [The “Model” Rules of Professional Conduct are prior to May 1, 2005. The “Arkansas” Rules are in effect from May 1, 2005.]

DISBARRED: OSCAR AMOS STILLEY, Bar #91096, of Fort Smith, was disbarred by the Arkansas Supreme Court in its Opinion and Order

of Disbarment issued November 4, 2010, in Case No. 08-73, cited as 2010 Ark. 418. The disbarment proceeding arose out of complaints filed by Judge James Marschewski (CPC 2006-067) and Judge Stephen Tabor (CPC 2007-062) and other matters. The Court adopted the 119 pages of findings of fact and conclusions of law filed April 22, 2009, by the special trial judge (an on-line appendix to the Court’s Opinion) and also the recommendation of disbarment as the appropriate sanction. The trial judge found all 32 counts of Rule violations pleaded were proven, twenty of the counts were “serious” misconduct, and evidence of ten aggravating factors. The trial judge recommended disbarment “because of Stilley’s unwillingness or inability to acknowledge that his conduct has not met ethical standards; his failure to disclose his violations when required; and his continued pattern of failing to abide by Court Rules and ethical guidelines.” The Court concluded by stating, “Further, given the number of violations, the length of time over which Stilley has incurred such violations, and Stilley’s repeated unwillingness to accept the finality of court decisions, we agree that his actions constitute serious misconduct and that disbarment is the appropriate sanction.” (Note: Mr. Stilley’s subsequent 2009 Oklahoma federal criminal case, felony conviction, and fifteen year sentence, now on appeal, were not part of this case.) SUSPENSION: CHARLES T. MULVEY, Bar #92172, formerly of Fort Smith and now in the

Dallas, Texas area, in Committee Case No. CPC 2009-103, by Findings & Order filed December 28, 2010, had his Arkansas law license suspended, effective that date, for 12 months, after a hearing on a complaint arising from the outcome of a civil suit filed against Mulvey by attorney Craig Cook of Ozark, Arkansas. The hearing panel found Mr. Mulvey’s conduct violated Arkansas Rule 8.4(c) on each of seven Counts. In late 2007, Mr. Cook sued Mr. Mulvey regarding the dissolution of Mulvey’s association with Cook’s law firm, an association that began in mid-2006 and concluded in October 2007. The original complaint by Cook sought an injunction against Mulvey and an accounting of legal fees from various cases. Judge Mays’ letter opinion stated both Cook and Mulvey left other law firms and entered into an agreement whereby Mulvey, as an independent contractor attorney, would handle all social security and workers’ compensation claims within Cook’s new law firm. The agreement, which was not signed, set out that Mulvey would begin work on June 8, 2006. Both Cook and Mulvey agreed that Mulvey left the law firm in early October 2007. In the proceeding before Judge Mays, an Agreed Order was read into the record and then filed with the Clerk on January 17, 2008, by which Cook and Mulvey agreed to a division of the firm’s files on pending social security and workers’ compensation claims. The Order also reflected how all fees would be split regarding those files. The files were listed in Exhibits to the Agreed Order. Based on information which Mr. Cook began to receive shortly after the Agreed

PATENTS - TRADEMARKS - COPYRIGHTS Registered Patent Attorneys Trent C. Keisling David B. Pieper Meredith K. Lowry Stephen D. Schrantz Robert R. Keegan P.O. Box 10379 Fayetteville, AR 72703


The Arkansas Lawyer

Over 90 Years Experience Helping you protect your clients’ ideas.

(479) 251-0800 - (501) 351-0801 -

Attorney Disciplinary Actions Order was filed of record, he caused a motion for contempt to be filed. In seeking a contempt finding, Cook explained that former employees of Mulvey had reported to Cook that Mulvey was not accurately and honestly dividing the attorney’s fees with Cook. At hearings on April 14 and August 4, 2008, Judge Mays heard the testimony of witnesses, including Mulvey, two former Mulvey employees, and an ex-employee and ex-girlfriend of Mulvey. Following the continuance of the hearing, Mulvey filed a Petition for Contempt Citation and Sanctions against Cook. Cook also filed an Amended Complaint for Contempt and a Second Amended Complaint for Contempt for Fraud and/ or deception on June 5, 2008. In her letter opinion dated December 1, 2008, Judge Mays specifically set out that she did not find Mr. Mulvey credible. She found also that most of the witnesses who worked for Mulvey or with him had credibility problems. Judge Mays explained that Mulvey’s attempt to blame another employee, who had nothing to gain since Mulvey was the person who retained the funds, rendered Mulvey’s testimony even more untrustworthy. Judge Mays also made note of the fact that many checks at issue were deposited into Mulvey’s personal account, not his business account, providing more evidence

that he was attempting to hide the fees from Mr. Cook. Some of the checks were deposited into Mulvey’s personal account before he left Cook’s law firm. With regard to the first set of claims made by Mr. Cook, Judge Mays stated that Cook’s allegations were that Mr. Mulvey made copies of two of the fee checks Mulvey actually received, and the check copies were then altered by a “cut and pasted” process to show lesser amounts than the true amounts of the checks. Mulvey then mailed to Cook less money than Cook was due, based on the altered amounts shown on the check copies. After subpoenas were issued for Mulvey’s known checking accounts, both business and personal, the deposit documentation of these two checks, for the Henneck and Price cases, could not be located. Without stating the name of any specific person she found to have altered the check copies that Mulvey provided to Cook, Judge Mays found the alterations occurred and that Cook had proved by clear and convincing evidence that Mulvey had defrauded Cook regarding the payment of owed attorney’s fees. She awarded Cook judgment for $8,623.50 against Mulvey. On the Henneck case the actual attorney’s fee awarded and paid was $1,811.50. The copy of the Social Security check presented to Mr. Cook by Mr. Mulvey by cover letter

ELECTRICAL ACCIDENTS Paul D. Mixon, Ph.D., P.E. Engineering Consultant P.O. Box 2154 State University, AR 72467 (870) 972-2088 (870) 972-3948 FAX

• • • • • • • •

Accident Investigation and Analysis Contact Cases and Electrocutions Electrical Injuries Property and Equipment Damage Electrical Fires Safety Code Compliance Expert Witness Disputes Settled


Johnson, Smith & Associates, PLLC Certified Public Accountants

Stanley Smith CPA, CBA, CVA

Business Valuation Economic Damages Litigation Support 201 S. Chester Little Rock, AR 72201 501-372-4180 Fax 501-372-1165

dated December 20, 2007 was in the amount of $673.30, represented by Mulvey to be Cook’s 50% of the actual fee received. The altered check copy presented to Cook showed $1,138.20 less than the actual amount of the attorney’s fee award by Social Security to Mulvey. On the Price case, the actual award was $5,223.00 The copy of the check for attorney’s fees that Mulvey presented to Cook in December 2007, was $2,762.00. The underpayment to Cook on Price was $1,230.50, one-half of the $2,461.00 difference between the actual fee award of $5,223.00 to Mulvey less the $2,762.00 Mulvey reported to Cook. The trial judge made findings regarding fees involving seven other clients, but the hearing panel did not find and vote Rule violations related to those findings and counts of the Complaint. There were four other claims made by Mr. Cook which were not found to be substantiated by Judge Mays. With regard to the various Motions for Contempt filed in the matter, Judge Mays made no order containing a contempt finding. After entry of the Court’s Order, and after the time had expired for filing a Notice of Vol. 46 No. 1/Winter 2011 The Arkansas Lawyer


Attorney Disciplinary Actions Appeal, Mr. Cook began contacting Mr. Mulvey’s counsel about Mulvey’s compliance, or lack thereof, to the requirements of Judge Mays’ Order. Mulvey continued to ignore his court-ordered obligations. Cook then filed a Complaint for Contempt on July 29, 2009. Cook alleged that in May 2009 Mulvey sent him a check for $5,551.24 that was returned by Mulvey’s bank unpaid, for insufficient funds. In his Response to the formal disciplinary Complaint, Mr. Mulvey stated that neither he nor Mr. Cook could trust each other and that the break-up of their agreement was less than amicable. He asserted that Cook received all money to which Cook was entitled, other than one payment, and that Mulvey was the one cheated out of much. He also stated that the situation was not based on fact. Mulvey blamed the situation on ex-employees, his exwife, his stepdaughter, and an ex-girlfriend. Mulvey denied all the allegations made in the formal Complaint with regard to violations of Rule 8.4(c), with the exception of a few he admitted in part and denied in part. He offered that all of his testimony to Judge Mays was true, complete, and correct. Mulvey stated that he had a good faith belief in many instances that Cook was not entitled to any of the fees in certain client matters. At the hearing, Cook stated that the $5,551.24 check in May 2009 from Mulvey to Cook and dishonored for insufficient funds by Mulvey’s bank has never been made good by Mulvey. Mr. Mulvey testified that he altered no checks and knew nothing about any such alterations, he owed Cook a fee on one case that was not originally paid, and that he had an idea who at Mulvey’s law office may have made the two altered check copies in late December 2007 and why she did it. He stated he had never found any evidence that he had actually received the Henneck and Price original fee checks. He stated he had not sought criminal prosecution of any person for alleged theft of funds from his law office. He stated he had not attempted, since Cook sued him in late 2007, to obtain copies of the Henneck and Price fee checks from the Social Security Administration. He testified he had lived in Texas since the fall of 2009. The time within which Mr. Mulvey may file to appeal this Committee decision has not run at publication date. REPRIMAND: JEFFREY KEARNEY, Bar #91249, of Pine Bluff, AR, was reprimanded, fined 38

The Arkansas Lawyer

$1,000.00, and ordered to pay restitution of $250.00 by Committee Findings and Order filed November 17, 2010, in CPC 2010039, on a complaint filed by Helen Parker, for violations of Rules 1.3, 1.4(a)(3), 1.4(a) (4), 1.16(a)(1), 1.16(d), 3.4(c), 3.4(d), 5.5(a), and 8.4(d). Helen Parker, her daughter, and granddaughter, all residents of Mississippi, were involved in an automobile accident in Mississippi. The vehicle was “totaled out” in the accident and Mrs. Parker, the driver, and her passengers all sustained serious bodily injuries. Mrs. Parker made a claim on her insurance policy for the accident, which was denied. She contacted Kearney Law Offices and hired them in 2006 to represent her and her family in a civil action against her carrier, Safeway. On several occasions after hiring the firm, Mrs. Parker attempted to call and get information on her case with no success. On February 24, 2009, a few weeks shy of the statute of limitations running, Mr. Kearney filed a civil action in the Circuit Court of Bolivar County, Mississippi, on behalf of Mrs. Parker, her daughter, and her granddaughter. Mr. Kearney filed in Mississippi State Court without being granted pro hac vice status and continued to represent Mrs. Parker despite not getting such status approval. Upon being served with the Complaint, Safeway removed the case to Federal District Court in Mississippi. Safeway filed its Motions for Dismissal of Claims of all three Parker plaintiffs. Mr. Kearney failed to file responses to Safeway’s motions. At the case management conference, the judge ordered Mr. Kearney to retain local counsel and have him or her make an entry of appearance and Mr. Kearney was to file his motion to appear pro hac vice no later than August 21, 2009. Thereafter, no other action was taken by Mr. Kearney in the Parker case. There is no record in the docket of Mr. Kearney making an application to the District Court for pro hac vice admission as ordered by the court. On October 15, 2009, Safeway served Mr. Kearney with Interrogatories and Requests for Production of Documents. Mr. Kearney failed to respond and Safeway filed a Motion to Compel. The Court issued an Order to Show Cause on March 9, 2010, due to Mr. Kearney’s failure to obtain local counsel in the case, his failure to file a motion for pro hac vice admission, and his failure to respond to any of Safeway’s motions and discovery. Mr. Kearney was directed to show cause why the

case should not be dismissed for failure to take any action or for failure to follow the Local Rules and Orders of the court. Mr. Kearney failed to respond to the Order to Show Cause or to file the appropriate motion with the Court removing himself from the case. BOBBY K. KEETER, Bar Number 77076, of Mena, Arkansas, by Findings & Order filed October 12, 2010, was Reprimanded and ordered to pay a fine in the amount of $2,500 in No. CPC 2010-059 for violation of Rules 3.2, 3.4(c), 3.4(d), 4.4, and 8.4(d) of the Arkansas Rules of Professional Conduct on a complaint filed by Meda and Tony Ballard. The Ballards filed a lawsuit in 2005 against George Page, who was represented by Keeter, over issues arising from the 2003 construction of their new house. The Ballards counsel (they had three) attempted to get Keeter to participate in the discovery process. Mr. Keeter did not respond to discovery, to letters, or other communication. Mr. Keeter also failed to respond to Motions filed with the Court and failed to comply with Orders directing him to act. Mr. Keeter caused much delay, resulting in the Ballards not have their day in Court until June 2010, when a jury awarded them $75,000 against Keeter’s client. BRANDY MELISSA MCSHANE, Bar #95042, of Springfield, MO, was reprimanded in Case No. CPC 2009-052, by Findings & Order filed October 1, 2010, and also fined $250 for failing to file a response, on a referral from the Missouri Supreme Court from a sanction there in 2008. The Missouri disciplinary proceedings related to representation of (1) Belenda Cook in a guardianship matter in Missouri; (2) Tim and Sandy Freiburger in an estate planning matter; and (3) Gabriel Ondetti in an estate planning matter. Ms. McShane entered into an agreement with the Missouri Disciplinary Board wherein she was suspended from the practice of law for a period of six months with the suspension being stayed and was placed on probation for a period of one year and fined the sum of $1,000. The Missouri Disciplinary Counsel referred Ms. McShane’s conduct to the Arkansas Office of Professional Conduct. It was discovered that, in addition to the disciplinary matter in Missouri, Ms. McShane had not paid her Arkansas license fees for the years 2005, 2006, 2007, 2008 and 2009. Ms. McShane was served with a formal complaint on July 24, 2009, but failed to file a response to



Aviation Accidents

Complex cases dealing with FAA regulations, flying technology and procedures require experience and expertise, and the preservation of evidence. Andy Payne, Of Counsel to the firm, has been an active pilot since 1989. Give us a call.

When your clients need help with a personal injury case, adding us to your legal team is a strong idea. We bring more than 30 years of experience in such challenging legal areas as complex products cases, plane crashes, tractor trailer crashes and pharmaceutical cases.



Centre Place Building

For more information on how we can help you obtain the best results for your client, contact us today.

212 Center Street Second Floor Little Rock, AR 72201 (877) 492-3030 (501) 372-0038

501-372-0038 877-492-3030

Vol. 46 No. 1/Winter 2011 The Arkansas Lawyer 1-11-306.indd 1


1/25/11 7:36 AM

Attorney Disciplinary Actions the complaint. Pursuant to Section 9.C(4), the allegations in the formal complaint were deemed admitted. Ms. McShane was reprimanded and assessed costs in the amount of $50.00 for her conduct. For her failure to respond to the formal complaint, a separate sanction was imposed and she was Cautioned for her failure to respond and fined the sum of Two Hundred Fifty ($250.00). 10802 ADR SamBird AR Lawyer Ad2:Layout Rule 1.3, 1.4(a)(3), 3.4(c), 8.l(b).

CHARLES R. SUPHAN, Bar #94003, formerly of Maumelle and now of Morrilton, in No. CPC 2009-100, on a complaint by Jennifer Monterola, was reprimanded by Consent Findings & Order filed October 15, 2010, for violation of Rules 1.1, 1.2(a), 1.3, 1.4(a)(3), 1.4(a)(4), 1.15(a)(2), 3.4(c), 5.5(a), and 8.4(d). In July 2007, Ms. 1 12/10/10 12:36 PM Page 1 Monterola employed and paid Mr. Suphan to represent her in obtaining an annulment


Welcomes Judge Samuel N. Bird Samuel N. Bird graduated from Florida State University with a B.S. in Psychology. He then entered the Air Force where he was commissioned as a Second Lieutenant, was promoted through the ranks, and honorably discharged as a Captain. Bird attended the University of Arkansas School of Law at Fayetteville, graduating in December 1969 as the top-ranked member of his graduating class. He then entered private practice in Monticello, Arkansas, at the firm of Williamson, Ball & Bird. There he practiced general law which included extensive civil and criminal trial experience. He also practiced in the areas of banking, insurance, personal injury, real estate, domestic relations, probate, guardianships, decedents’ estates, business organizations, secured transactions, and land use planning and development. Bird served as Circuit/Chancery Judge for the 10th Judicial District from 1991 to 1997. He then served as Associate Judge of the Arkansas Court of Appeals for the 5th District for 12 years. Judge Bird is certified by the Arkansas Alternative Dispute Resolution Commission as a mediator for Arkansas’ Circuit Courts. He joins our other certified mediators and arbitrators with decades of legal and judicial experience. For more information about how ADR’s experienced, professional and reasonably priced mediators can help you, or to book a mediation call our main office in Little Rock

501-376-2121 40

The Arkansas Lawyer

from her husband, an illegal alien when they married and who was later deported from the USA. She gave Suphan a total of $340.00 in cash for part of his legal fee and the case filing fee. By late August 2007, Suphan had received an additional $220.00 for Monterola’s account in a check from her grandmother. Monterola thereafter was unable to contact Suphan, as his telephone number was disconnected at times or out of service at times. Suphan finally filed a “Complaint for Divorce” for her in March 2008, and he had summons to the defendant issued. Ms. Monterola had to transport Mr. Suphan from his home in Maumelle to the Pulaski County Courthouse and then back home for him to file her case, as he told her he had no available transportation at the time. Mr. Suphan did not pay his 2008 Arkansas law license renewal fee, due by March 1, until June 13, 2008. His Arkansas law license was in automatic suspension status on March 20, 2008, when he filed Ms. Monterola’s Complaint. He practiced law at a time when his Arkansas law license was suspended in 2008. On July 28, 2008, Monterola mailed Suphan a check written by her grandmother and payable to The Daily Record for $125.00, but her check has not been reported to her as being negotiated. Ms. Monterola later reported that Mr. Suphan informed her that he had misplaced the $125.00 check and would file the warning order once he located the check. She thereafter continued to have difficulty communicating with Suphan about the status of her case. She found his telephone was disconnected again in August 2008. She did not receive any return calls from Suphan of her numerous calls for six weeks prior to September 24, 2008, when she filed her grievance at the Office of Professional Conduct (OPC). Suphan failed to obtain service of summons on Mr. Monterola within 120 days as required by Court rule. A Dismissal Order Without Prejudice was filed September 17, 2008, in Ms. Monterola’s case. She was not notified of this event by Mr. Suphan. Starting on September 26, 2008, OPC attempted to assist Ms. Monterola by contacting Mr. Suphan, encouraging direct communication between attorney and client, and asking for appropriate and timely action in her case. On October 8, 2008, Mr. Suphan provided an e-mail status report. On December 4, 2008, Mr. Suphan sent OPC a faxed status report. Included in the documents provided by Mr. Suphan to OPC was a copy of an e-mail Suphan sent to Ms. Monterola on October 8, 2008, in which he informed her

Attorney Disciplinary Actions he was sending the warning order to the Daily Record to be published, a hearing could be set thirty (30) days thereafter, and that he would get her divorce wrapped up without further delay. The warning order was first published on November 28, 2008. In neither of his status reports to OPC, which were promptly forwarded to Ms. Monterola, did Mr. Suphan disclose that the original Complaint had been dismissed by Court order filed September 17, 2008, for failure to obtain timely service upon the defendant. It is now known through a review of the case docket that Mr. Suphan filed an Amended Complaint for Ms. Monterola on October 7, 2008, to try to get the same case started again, apparently paying the new filing fee from his funds. Even with the six week delay in publishing the warning order, Mr. Suphan represented to his client that he should have her in a final hearing by about January 1, 2009. No such hearing has been held and Ms. Monterola had not received a divorce as of June 30, 2009. On March 12, 2009, Mr. Suphan filed a new Complaint for Divorce for Jennifer Monterola in Pulaski Circuit Court, paid a $140 filing fee, and had summons issued. No further action is shown by the case docket. Mr. Suphan did not

pay his 2009 law license renewal fee, due by March 1, until March 11, 2009. His Arkansas law license was in automatic suspension status from March 2-11, 2009, ending the day before he filed Ms. Monterola’s new Complaint. He practiced law at a time when his Arkansas law license was suspended in 2009. After December 2008, OPC communicated many times with Mr. Suphan requesting that he take appropriate action in Ms. Monterola’s matter. By 2010 he was able to function better. He

• • • •

CAUTION: ERWIN L. DAVIS, Bar #71022, of


Offering quality, consistency & reasonable prices for all of your briefing needs: •

provided his client her file. In June 2010 he made a $540 refund to her. In August 2010 he got reinstated by the CLE Board. He is now working with AJLAP, doing better, and reports he has a stable personal environment for the first time in many months, and has slowly returned to a limited law practice in Morrilton.

LEGAL BRIEFING Handling all your briefing needs

Writing Briefs to the Arkansas Court of Appeals, the Arkansas Supreme Court, the Federal Circuits and, the United States Supreme Court Motions in Limine Summary Judgment Trial Briefs Legal Research

Robert Tschiemer is the author of the Arkansas Bar Weekly Case Summaries, available at For a complete list of decisions* see

Robert S. Tschiemer Ark. Bar 84148 43001 Hwy. 89 N. Mayflower, AR 72106

501.951.3303(p) 501.325.1235(f)

*updated during appellate court sessions Vol. 46 No. 1/Winter 2011 The Arkansas Lawyer


Hamlin Dispute Resolution, LLC offering mediation, arbitration and other dispute resolution services throughout the mid-South since 1992

To schedule a mediation with Frank Hamlin or Chris Gomlicker, visit our website,, for online scheduling.

Frank Hamlin

Chris Gomlicker

823 W. Markham St., Suite 100 (Two blocks East of Doe’s Restaurant) (Corner of Markham & Izard Streets) Little Rock, Arkansas 72201 (501) 850-8888 (501) 850-8889 (fax) 42

The Arkansas Lawyer

Attorney Disciplinary Actions Fayetteville was cautioned by Findings & Order filed October 12, 2010, in No. CPC 2010-021, after a hearing, for violation of Rule 1.3. Davis represented Jim Henson in a Rule 37 Post-Conviction matter in Washington County Circuit Court. After a decision was entered by the court, Mr. Davis filed a timely notice of appeal. Mr. Davis began to work on Henson’s brief and received two extensions. The last extension was to December 23, 2009. Mr. Davis admitted that he did not file a Motion for Extension of Time on or before December 23, 2009, but did ship such a Motion on December 22, 2009. He received a letter dated January 5, 2010, which stated that his Motion had not been timely filed. Davis did nothing further until February 16, 2010, when he filed a Motion to File Belated Brief. The Arkansas Supreme Court granted Mr. Davis’s Motion and his client’s appeal continued. After a hearing before Panel A, Mr. Davis was cautioned and assessed $150 costs. Mr. Davis has filed a Notice of Appeal to the Arkansas Supreme Court. CARL W. HOPKINS, Bar #94215, of Van Buren, Arkansas, on complaint of Lera Shelby, was Cautioned by Consent Findings and Order filed December 14, 2010, in No. CPC 2010-075, for violation of Rules 1.3, 1.5(b), 1.15(a)(1) and 1.15(b)(2). Mrs. Shelby hired Mr. Hopkins to represent her in a bankruptcy proceeding during April 2008. Shelby had many creditors and had been sued by some. She presented all of this information to Hopkins as requested. She took the $1,250 in fee he requested to him as well. Hopkins failed to place the fee arrangement with Shelby in written form in spite of not having ever previously represented her, and failed to explain the rate or basis of his fee to Shelby. The payment of advanced fees and costs was not placed in Hopkins’ IOLTA trust account, so the client’s funds were not safeguarded. Hopkins did not file the bankruptcy. When Shelby requested her fees be refunded, Hopkins told her that someone would send a refund. No refund was sent. Mrs. Shelby finally hired an attorney who sued Mr. Hopkins. They settled for $500 in order to not expend any additional funds on costs, etc. JEFFREY KEARNEY, Bar #91249, of Pine Bluff, AR, was cautioned by Committee

Tom M. Ferstl, MAI, SRA, J.D. J.T. Ferstl, MAI, J.D. 621 E. Capitol Ave. Little Rock, AR 72201 Phone: 501-375-1439 or 501-376-1439 Fax: 501-375-8317

Expert Witness Testimony Real Estate Related Matters •Tax Appeals •Court Testimony •Divorce •Condemnation 40 Years Experience See Web Site for References email: Findings and Order filed November 17, 2010, in No. CPC 2010-049, on a complaint filed by Terry Otter, for violations of Rule 1.3. In August 1991, complainant Terry Otter pled guilty to kidnaping and two counts of rape and is currently serving a forty (40) year sentence in the Arkansas Department of Corrections. In May 2008, the Arkansas Sex Offender Assessment Committee (hereinafter “SOAC”), assessed Otter as a level-four sexually violent predator. Otter hired Kearney Law Office to represent him. Otter requested administrative review of SOAC’s assignment which was granted and the review was subsequently upheld. Otter had 30 days from receipt of the findings to petition for judicial review. Kearney filed Otter’s Petition for Judicial Review on December 4, 2008. SOAC responded to this the Amended Petition on April 21, 2009, requesting that the action be dismissed. The court found that because Kearney did not file the Petition for Judicial Review until December 4, 2008, the petition was not timely and the court was without jurisdiction to hear the matter on the merits. The Petition for Judicial Review was dismissed with prejudice. Kearney filed a Notice of Appeal from the court’s dismissal. The Arkansas Court of Appeals affirmed the trial court’s dismissal.

DENNIS R. MOLOCK, Bar #79211, of Stuttgart, Arkansas, was Cautioned and ordered to pay a fine in the amount of $400 by Consent Findings and Order entered in No. CPC 2010-072 for violation of Rules 1.1, 1.3, and 8.4(d) of the Arkansas Rules of Professional Conduct. The Arkansas Supreme Court granted Mr. Molock’s Motion for Rule on the Clerk in Pennister v. State, CR10-579, on August 6, 2010. In the Per Curiam granting the Motion, the Court referred the matter to the Committee. Mr. Molock represented Mr. Pennister in a pending criminal matter in Arkansas County Circuit Court. A conditional plea of guilty was entered following the denial of Pennister’s Motion to Suppress. The Judgment from which the appeal was to be taken was filed on September 15, 2009. Mr. Molock did not file a Notice of Appeal until February 17, 2010, one hundred and eleven days following the filing of the Judgment. n

ADVERTISE in the next issue of The Arkansas Lawyer Go to

Vol. 46 No. 1/Winter 2011 The Arkansas Lawyer


Uniform Laws continued from page 13

circumstances the House of Delegates is allowed to increase it to 13 bills, by a threefourths vote. Jurisprudence and Law Reform then reports to the Board of Governors in April, which makes a recommendation to the House of Delegates. In 2010, Jurisprudence and Law Reform recommended five bills for the legislative package: •The Amendments to the Revised Uniform Principal and Income Act, which Arkansas enacted in 1999.27 The amendments concern the marital deduction and several other tax matters. •A version of the Uniform Arbitration Act significantly amended by the Jurisprudence and Law Reform Committee. •The Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act, which addresses the issue of guardianships that move across state lines. •The Revised Uniform Unincorporated Nonprofit Association Act, a revision to a uniform act Arkansas adopted in 1997.28 The revised act incorporates some modern practices and eliminates potential conflicts with other laws. •An amendment to the law of scire facias.


The Arkansas Lawyer

This last is the only non-uniform act. One question that sometimes arises is the significance of Jurisprudence and Law Reform’s refusal to add a bill submitted to it to the bar package. In some instances this occurs because the committee does not support the legislation. In other instances, however, the committee may feel very positive about the bill but does not feel it is important or urgent enough to be included in the legislative package. Or, the size of the package may not permit its inclusion. Committee chair Dennis Zolper states that the committee considers several factors: 1) the importance of the bill; 2) how it will impact the practice of law; 3) whom it will benefit, and how; and 4) how urgent the need for it is.29 The House of Delegates The House of Delegates is the body that ultimately decides the makeup of the legislative package, although usually it affirms the recommendations of Jurisprudence and Law Reform. A bill must receive a favorable vote of two-thirds of the House before it can be included in the legislative package. However, if the bill receives less than two-thirds, but more than 51 percent of a favorable vote, the Lobbyist may report it as approved by the Association and the Legislation Committee

cannot reverse the approval. The House is free to amend proposed legislation as it wishes before including it in the package.30 Although the House of Delegates meets twice a year, it typically votes on all or most of the legislative package at the June meeting prior to the legislative session. Thus, the legislative package for the 2011 session was voted on in June of 2010. However, should something lastminute arise, the House could vote on it at its January 2011 meeting. After passage by the House of Delegates, Jurisprudence and Law Reform works with the Legislation Committee to modify the bills in accordance with directions from the House.31 The Lobbyist Once the legislative package is complete, it rests in the hands of the Association’s Lobbyist, Jack McNulty. He ensures that all bills are in the proper form, enlists sponsors for the bills, decides when they should be filed, and of course lobbies for their passage. He may deal with other bills during the session as well in which the Bar Association has a strong interest, such as a bill to tax attorneys’ fees. He also organizes the Association’s “Legislative Action Network,” consisting of Bar Association members who can contact legislators on behalf of any position of the Bar Association.32

The Legislation Committee The Legislation Committee, currently chaired by Roy Beth Kelley of Russellville, consists of nine voting members: the President, the President-Elect, the chair of Jurisprudence and Law Reform, the chair of the Legislation Committee, two individuals appointed jointly by the President and President-Elect, and three representatives who each represent one of the state bar districts and who are elected by the members of the House of Delegates of each district.33 Of course, the Legislation Committee promotes the bills in the Bar Association package. It also supports the position of the Bar Association on other pending legislation. The Committee may not take an opposite position to any vote of the House of Delegates within the past 24 months. However, most of its workload is considering other proposed legislation on which the Bar Association has taken no position. The Bylaws set out some strictures. The Committee may not take a position on any legislation “unless it would have a direct effect on the practice of law or a significant impact on the administration of justice.”34 The Legislation Committee meets once a week while the legislature is in session. The Chair and the Lobbyist, who attends the meetings even though he is not a voting member, read all of the bills. Members are also assigned a number from zero to nine and are responsible for reading all bills ending in that number. The Legislation Committee often seeks assistance from the sections. The Legislation Committee is the sole entity that may speak for the Bar Association in lieu of the House of Delegates, once the legislative session has convened. Bar Association sections, committees and members may not speak for the Association or for their section or committee to the legislature, but only as individuals. After discussing bills that fall under the Committee’s purview, the Committee will vote to instruct the Lobbyist to either support, oppose or remain neutral. During regular legislative sessions, the workload of this committee is enormous, but Roy Beth Kelley reports that committee members are extremely dedicated to their work. During the 2010 session, the committee met weekly and monitored all bills, but as there were no substantive bills introduced, its workload was much less than during a regular session.35 A Lengthy Process–Changes Ahead? Probably the most often-voiced complaint of people introducing legislation is the long lead time necessary to submit a bill for inclu-

New Year’s Resolution

First Row (l to r): Second Row:

Neil Chamberlin, James Bruce McMath, Will Bond Carter Stein, Sam Ledbetter, Phillip H. McMath, Charles Harrison

Resolve your difficult cases this year with the help of McMath Woods – and our 57-year history of success in environmental, wrongful death, personal injury and product liability litigation. Learn more about how we can help make 2011 a winning year at Personal injury, wrongful death and environmental litigation 711 West 3rd • Little Rock, AR 72201 501-396-5400

sion in the bar package. Of course, the main reason for this is the fact that until 2010 Arkansas’s General Assembly met on a biennial basis. Arkansas Constitutional Amendment 86 took effect in 2009. It mandates sessions in even-numbered years to consider only appropriations bills, unless both houses vote to consider a substantive bill by a two-thirds vote. Some believe that over time this restriction will fade away and eventually substantive

legislation will be freely considered in both houses.36 Indeed, Arkansas may be the only state with an annual session that limits consideration of substantive bills to every other year.37 How might the process work with an annual legislative session? The House of Delegates must approve the package at least a month before the beginning of the session in order to give the Lobbyist time to prepare. If the House of Delegates were to meet in

Vol. 46 No. 1/Winter 2011 The Arkansas Lawyer


Lawyer Disciplinary Actions November, that condition would be fulfilled. That would mean the Jurisprudence and Law Reform Committee would work on the bar package in approximately June through September. Proposals would need to come to Jurisprudence by May. The Legislation Committee’s work period would be the same time of year, but annually instead of once every two years. The Uniform Law Committee would do its work in the spring rather than the fall. This change hinges on the House of Delegates meeting in November, but such a meeting could substitute for the January meeting.38

Conclusion Uniform laws are a valuable resource for the states. Arkansas’s uniform law commissioners have played an active part both on the national level in the ULC and at the state level in the Arkansas Bar Association to improve the law. The Arkansas Bar Association’s legislative process is well thought out and very thorough, but will have to change in the future if the legislature becomes more active in even-numbered years. Endnotes 1. This article was written with the assistance of a research stipend granted by Dean John M.A. DiPippa. My thanks to Phillip Carroll,

John Stroud, Vince Henderson, and Elisa White for their review. Thanks also to Cliff McKinney for his suggestions as to scope. Jack McNulty, Dennis Zolper and Roy Beth Kelley graciously agreed to be interviewed for this article and have my deepest gratitude. 2. Unusually, the entity has two names: its original name, the National Conference of Commissioners on Uniform Laws, and a name adopted several years ago in surrender to popular usage, the Uniform Law Commission. Both names are official. Unif. Law Comm’n Const. art. 1, § 1.1. 3. No meeting was held in 1945 because of wartime travel restrictions. 4. Robert A. Stein, President, Opening Address at the 119th Meeting of the Uniform Law Commission (July 9, 2010). 5. Uniform Law Commission, http:// n c c u s l . o r g / Up d a t e / De s k t o p De f a u l t . aspx?tabindex=2&tabid=60 (last visited Aug. 11, 2010). 6. For further research in this area, see generally Walter P. Armstrong, Jr., A Centtury of Service: A Centennial History of the National Conference of Commissioners on Uniform State Laws (1991); Unif. Law Comm’n 2009-2010 Reference Book (2009); Joe C. Barrett & Richard K. Burke, Uniform Laws in Arkansas, 1 Ark. L. Rev.

224 (1946-47); National Conference of Commissioners on Uniform State Laws, The Arkansas Lawyer (Jan. 1975), at 23. 7. Id. at 16. 8. Id. at 19. 9. Id. at 26. 10. 1945 Ark. Acts No. 159 (codified at Ark. Code Ann. §§ 1-2-401 through 403.) 11. Armstrong, supra n. 6, at 182. 12. Barrett & Burke, supra n. 4, at 226. 13. Armstrong, supra n. 6, at 182. 14. Unif. Law Comm’n Const. art. 6, § 6.1. 15. Ark. Code Ann. §§ 1-2-401 through 403. 16. The ULC adopts both uniform and model laws, although the former greatly outnumber the latter. Uniform laws are those anticipated to be adopted in a large number of states, and those where uniformity of provisions is a principal objective. On the other hand, model acts are those where uniformity is not as important and the purposes of the act can be “substantially achieved even though it is not adopted in entirety by every state.” Unif. Law Comm’n, Statement of Policy Establishing Criteria and Procedures for Designation and Consideration of Acts § 2, in Reference Book, supra n. 6, at 134. 17. Id. at § 1. 18. Id. 19. Additionally, the Official Comments in

Reward yourself.

Get something back for your everyday purchases. Use your Arkansas Bar Association Platinum

Plus MasterCard credit card with WorldPoints® rewards, and you’ll earn points on ®


purchases to redeem for cash, travel, merchandise, even unique adventures.◆ Rewards for the things you buy anyway.



To apply, call toll-free



Mention Priority Code VAAET8. You can also visit and enter Priority Code VAAET8.

For information about the rates, fees, other costs and benefits associated with the use of this Rewards Card, or to apply, call the toll free number above, visit the Web site listed above or write to P.O. Box 15020, Wilmington, DE 19850. ◆

Terms apply to program features and credit card account benefits. For more information about the program, visit Details accompany new account materials.

This credit card program is issued and administered by FIA Card Services, N.A. The WorldPoints program is managed in part by independent third parties, including a travel agency registered to do business in California (Reg. No.2036509-50); Ohio (Reg. No. 87890286); Washington (6011237430) and other states, as required. MasterCard is a registered trademark of MasterCard International Incorporated, and is used by the issuer pursuant to license. WorldPoints, the WorldPoints design and Platinum Plus are registered trademarks of FIA Card Services, N.A. Bank of America and the Bank of America logo are registered trademarks of Bank of America Corporation. All other company product names and logos are the property of others and their use does not imply endorsement of, or an association with, the WorldPoints program. WP.MCV.0908 © 2010 Bank of America Corporation


The Arkansas Lawyer



Vol. Vol.42 46No. No.3/Summer 1/Winter 2011 2007TheThe Arkansas Arkansas Lawyer Lawyer 47 29

the LexisNexis Arkansas official code have 27. Ark. Code Ann. §§ 28-70-101 through not been updated since 1995. 28-70-605. 20. According to the ULC, Arkansas has 28. Ark. Code Ann. §§ 4-28-501 through enacted sixty uniform or model acts, and 4-28-517. ranks fifteenth, tied with the Virgin Islands 29. Interview with Dennis Zolper, in Jonesand Washington. In descending order, those boro, Ark. (Aug. 19, 2010). states which have enacted the most uniform 30. Bylaws, supra n. 26, at art. X. acts are New Mexico (80), North Dakota 31. Legislative Timetable for the 2011 Legis(72), Montana (72), Minnesota (71), Okla- lative Session, The Arkansas Lawyer (Summer homa (70), Nevada (70), Colorado (70), 2009), at 19. Idaho (67), Utah (64), Hawaii (64), District 32. Interview with Jack McNulty, in Little of Columbia (62), Wisconsin (61), Oregon Rock, Ark. (Aug. 17, 2010). (61), and Arizona (61). Email from Katie 33. Bylaws, supra n. 26, art. VIII § 1..E. Robinson, ULC Communications Officer 34. Id. at art. VIII § 1.F. (Aug. 30, 2010) (on file with author). 35. Telephone interview with Roy Beth Kel21. Minnesota Unif. Law Comm’rs Annual ley (Sept. 3, 2010). Report 4-5 (2009). 36. Currently only five states–Montana, 22. Telephone interview with Deputy Audi- Nevada, North Dakota, Oregon and Texas– tor Steven Kelly of the Office of the Arkansas have biennial legislative sessions, as opposed Auditor of State (Sept. 23, 2010). to annual sessions. Nat’l Conf. of State 23. 559 U.S. ___, 130 S. Ct. 1473 (2010). Legislatures, Annual versus Biennial Legis24. Ark. Code Ann. §§ 28-73-101 through lative Sessions, 28-73-1106. aspx?tabid=17541 (last visited on Sept. 3, 25. Chawla ex rel Giesinger v. Transamerica 2010). Occidental Life Insurance Co., 2005 WL 37. National Conference of State Legislatures, 405405 (E.D. Va. 2005), aff ’d in part, vac’d “2010 Legislative Session Calendar,” at http:// in part, 440 F.3d 639 (4th Cir. 2006) (dis- (last visited on trict court’s insurable interest analysis not Sept. 3, 2010). A significant number of states criticized by Fourth Circuit). do the reverse–have TS2011AdEP-HalfPg:TS2011AdEP-halfpg 8/24/10 1:40 PM Page 1annual sessions, but con26. Ark. Bar Ass’n Bylaws, art. VIII, § 1.G. sider budget matters only on a biennial basis.

38. Thanks to both Jack McNulty and Dennis Zolper for their ideas, which are reflected in this paragraph. Appendix A List of Arkansas Uniform Law Commissioners 1906-1910: John Fletcher, Little Rock 1909-1918: Ashley Cockrill, Little Rock 1921-1929 1909-1916: John M. Moore, Little Rock 1913-1915: Joseph M. Hill, Fort Smith 1914-1919: Nathan B. Williams, Fayetteville 1914-1916: Frank Pace, Little Rock 1923-1939: 1917-1944: W.H. Arnold, Texarkana* 1917: Ira D. Oglesby, Sr., Fort Smith 1917: W.V. Tompkins, Prescott 1919-1941: George B. Rose, Little Rock 1922-1929: J.H. Hamiter, Little Rock 1940-1944: Frank Pace, Jr., Little Rock 1943-1979: Joe C. Barrett, Jonesboro 1945-1956: Edward L. Wright, Little Rock 1945-1997: Robert A. Leflar, Fayetteville* 1953-1987: Marcus Halbrook, Little Rock** 1957-1961: William Nash, Little Rock 1961-1966: Herbert H. McAdams, Jonesboro 1961-1968: Louis L. Ramsey, Jr., Pine Bluff 1967-present: John C. Deacon, Little Rock* 1967-1969: Robert R. Wright III, Fayetteville 1969-1994: William S. Arnold, Crossett 1970-1989: Kern L. Treat, Little Rock**

Conference: April 11–13, 2011 EXPO: April 11–12, 2011 Hilton Chicago, Chicago, IL

Special Discount for Bar Association Members! Get closer to technology with a discount on ABA TECHSHOW registration for members of the Arkansas Bar Association ___________________________. Simply register under the Event Promoter rate and enter your association’s unique code: 1121 EP__________.

Got questions? Get answers! PRESENTED BY THE


The Arkansas Lawyer

1970-present: Phillip Carroll, Little Rock* 1990-2001: Larry D. Holifield, Little Rock** 2003-2007: David Ferguson, Little Rock** 2005-2009: David Nixon, Fayetteville 2005-2009: James Pender, Little Rock 2005-2009: Leroy Autrey, Texarkana 2007-present: Vincent Henderson II, Little Rock** 2009-present: Lynn Foster, Little Rock 2009-present: John Stroud, Jr., Texarkana 2009-present: Elisa White, Little Rock *Life Members **Associate Members Appendix B Uniform and Model Acts Enacted by Arkansas as of July 1, 2010 Following the title of each act is (in parentheses) the year of adoption of latest amendments by the ULC, (in italics and parentheses) the year of enactment by Arkansas, and (in bold and parentheses) the number of jurisdictions that have also enacted the act. Those current acts that Arkansas has adopted either without amendment, or in substantially similar form, or with amendments are included. 1. Anatomical Gift (2007) (39) 2. Athlete Agents (2000) (41) 3. Attendance of Out of State Witnesses (1936) (53) 4. Child Custody Jurisdiction and Enforcement (1997) (50) 5. Conservation Easement (1981) (25) 6. Controlled Substances (1974) (45) 7. Custodial Trust (1987) (19) 8. Declaratory Judgments (1922) (45) 9. Determination of Death (1980) (43) 10. Disposition of Community Property Rights at Death (1971) (14) 11. Disclaimer of Property Interests (2006) (27) 12. Division of Income for Tax Purposes (1966) (36) 13. Durable Power of Attorney (1979) (44) 14. Electronic Transactions (1969) (49) 15. Emergency Volunteer Health Practitioners (2007) (10)

Keith L. Chrestman, J.D. M.B.A. • • •

U of A School of Law 1996 Clerked Ark. Court of Appeals Clerked Illinois Appellate Court


Ark. Supreme Court Ark. Court of Appeals Ark. Circuit Court Ark. Workers’ Comp. Commission Chrestman Group, PLLC Continental Building, Ste. 204 P.O. Box 128, Jonesboro, AR 72403 (870) 933-8517

16. Enforcement of Foreign Judgments (1964) (50) 17. Estate Tax Apportionment (2003) (6) 18. Federal Lien Registration (1982) (36) 19. Fraudulent Transfer (1984) (44) 20. Limited Partnership (2001) (16) 21. Partnership (1994) (39) 22. Premarital Agreement (1983) (27) 23. Principal and Income (2008) (44) 24. Prudent Investor (1994) (45) 25. Prudent Management of Institutional Funds (2006) (44) 26. Real Property Electronic Recording (2004) (23) 27. Simultaneous Death (1993) (50) 28. Statutory Rule Against Perpetuities (1990) (28) 29. Testamentary Additions to Trusts (1991) (47)

Available each week for members

Weekly Case Summaries

30. TOD Security Registration (1998) (49) 31. Trade Secrets (1985) (47) 32. Transfers to Minors (1986) (50) 33. Trust Code (2005) (23) 34. UCC (1966) (53) 35. UCC Article 1 (2001) (38) 36. UCC Article 2A (1990) (51) 37. UCC Article 3 (1990) (52) 38. UCC Article 3 (2002) (9) 39. UCC Article 4 (1990) (53) 40. UCC Article 5 (1995) (52) 41. UCC Article 6 (1989) (50) 42. UCC Article 7 (2003) (36) 43. UCC Article 8 (1994) (53) 44. UCC Article 9 (1999) (53) 45. Unclaimed Property (1995) (15) 46. Model Rules of Evidence (1988) (34) 47. Model Registered Agents Act (2006) (10) n

Need labels? Your Association maintains the largest and most accurate database of Arkansas attorneys. To purchase mailing labels at a reduced rate to members call 501-375-4606.

Vol. 46 No. 1/Winter 2011 The Arkansas Lawyer


Usury continued from page 29

2. See Section 731 of the federal Financial Services Modernization Act of 1999, 12 U.S.C. § 1831u. 3. In fact, until January 1, 2011, Arkansas had two federal pre-emptions of similar impact. The 2009 amendments to Section 44(f)(1) of the Federal Deposit Insurance Act pre-empted Arkansas interest rate limits as to certain Arkansas transactions closed between June 27, 2009, and December 31, 2010. Basically, the limits were raised to 17 percent per annum for various types of bond financings and consumer loans, for a limited time, without disturbing existing preemptions such as those applicable to Arkansasbased depository institutions. 4. See the Depository Institutions Deregulation and Monetary Control Act of 1980, Pub. L. No. 96-221, 94 Stat. 132 (1980). 5. See the federal Riegle-Neal Interstate Banking and Branching Efficiency Act of 1994, 12 U.S.C., §§ 215a-1, 1831u, 36(d), and the Arkansas Interstate Banking and Branching Act, Ark. Code Ann. §§ 23-48901 to 911 (Repl. 2000). 6. Alabama, Mississippi, North Carolina,

Ohio, Tennessee and Texas, as of this writing, are the branching states. Those Arkansas bankers can use the highest rate for “similar transactions” among those states, in basic lending categories. For loans over $2,000, Alabama imposes no limits, Ala. Code 1975, § 8-8-5. Credit Cards likewise have no limits in Alabama. Ala. Code 1975 § 5-20-5. Mississippi does the same and specifically includes lines of credit over $2,000. Miss. Code Ann. § 75-17 -1(5). Mississippi permits revolving charge accounts to bear interest of twenty percent (20%). Miss Code Ann. § 75-17-19. Ohio permits small loan balances below $1,000 to bear interest at twenty-eight percent (28%) and those above $1,000 to bear interest at twentytwo percent (22%). Ohio Rev. Code Ann. §1321.13 (A). The corresponding numbers in Alabama are twenty-four percent (24%) and thirty-six percent (36%). Ala. Code 975 58-8-5. Alabama is probably the least restrictive branching state and, although other states share some rates in some categories, as noted, the composite rate structure is referred to as the “Alabama rate structure” for obvious reasons. 7. Apparently, the Amendment will permit more active pursuit of automobile loans

by those lenders, among other expanded opportunities. See Arkansas Business magazine Vol. 28, No. 2, January 10-16, 2011, pages 1 and 18. 8. I.R.C. § 265. The Amendment originally designated as Issue No. 3 revised Amendment 82(d) dealing with economic development bonds, but did not itself deal with interest rate limits. 9. See Note 5. 10. Ark. Appliance Distrib. Co. v. Tandy Elec., 292 Ark. 482, 730 S.W.2d 899 (1987), wherein the Court cited Ark. Code Ann. § 4-1-105(1) (Repl. 2001). 11. Ryder Truck Rental, Inc. v. Kramer, 263 Ark. 169, 563 S.W.2d 451 (1978). 12. See: W. Christopher Barrier, Usury in Arkansas: The 17% Solution, 37 Ark.L.Rev. 572-611 (1983); James E. Mitchell and W. Christopher Barrier, Usury in Arkansas Revisited, Revised, and Reaffirmed, 2 U. Ark. Little Rock L. Rev. 23 (1979); James E. Mitchell, Usury in Arkansas, 26 Ark. L. Rev. 263 (1972); and Comment, Usury, Issues in Calculation, 34 Ark. L. Rev. 442 (1981); for more detailed discussions. 13. Ibid. 14. Ibid. n

Member Benefit Provider


your transactions to the only merchant account recommended by over


bar associations!

Get Paid Increase Business Control Cash Flow Reduce Collections Lower Fees up to 25%



credit card processing

AffiniPay is a registered ISO/MSP of Harris, N.A., Chicago, IL


The Arkansas Lawyer

Ethics continued from page 17

12. Model Rules of Prof’l Conduct R. 6.1 cmt. 1 (2002). 13. Id. 14. Arkansas Model Rules of Prof’l Conduct (2005). 15. Arkansas Model Rules of Prof’l Conduct R. 6.1 (2005). 16. Id. 17. See id. cmt. 2. 18. Arkansas Model Rules of Prof’l Conduct R. 1.1 (2005). 19. Id. 20. Arkansas Model Rules of Prof’l Conduct R. 1.1 cmt. 2 (2005). 21. Id. 22. Arkansas Model Rules of Prof’l Conduct R. 1.1 cmt. 4 (2005). 23. Arkansas Legal Services Partnership, 24. Arkansas Model Rules of Prof’l Conduct R. 1.3 (2005). 25. See id. cmt. 2 (2005). 26. Arkansas Comm. on Ethics & Prof’l Responsibility, Annual Report (2008-9). 27. Arkansas Model Rules of Prof’l Conduct R. 1.4(a)(3) to (a)(4) (2005). 28. Arkansas Model Rules of Prof’l Conduct R. 1.4 cmt. 4 (2005). 29. Id. 30. See id. cmt. 5 (2005). 31. Id. 32. Arkansas Model Rules of Prof’l Conduct R. 1.1 (2005). 33. Arkansas Comm. on Ethics & Prof’l Responsibility, Annual Report (2008-9). 34. Arkansas Model Rules of Prof’l Conduct R. 6.1 (b) (2005). 35. See id. at (b)(3) (2005). 36. See id. cmt. 8 (2005). 37. See id. cmt. 9 (2005). 38. Id. 39. Id. 40. Id. 41. Arkansas Model Rules of Prof’l Conduct R. 6.1 cmt. 1 (2005). n

You’VE alrEadY handlEd ThE firsT lEg of ThE racE.

lET us handlE ThE lasT.

post-Judgment attorneys ColleCtions litigation

appellate advoCaCy


We work with trial attorneys to help collect judgments obtained on behalf of your clients.


We associate with trial attorneys on appellate matters to draft and prepare appellate briefs.


We also work with attorneys to help collect your attorneys’ fees when your clients don’t pay.


We handle appeals in Arkansas’s state appellate courts and the U.S. Court of Appeals for the Eighth Circuit.

124 West Capitol Avenue, Suite 1805, Little Rock, AR 72201 800.844.TAYLOR n TAYLORLAWfiRm.COm

Andy Taylor & Tasha Taylor: Authors of the Arkansas Appeals Blog


Market Your Law Firm for only $75/year

Vol. 46 No. 1/Winter 2011 The Arkansas Lawyer


In Memoriam career included over 20 years in practice. She is survived by her husband, Bill; her children, Crosby and Joseph Cash, and mother Mildred Rose. She was a member of the Arkansas Bar Association where she served on the Professional Ethics, Juvenile Justice, Mock Trial and Appellate Practice Committees.

Eldon Franklin Coffman, Sr. Eldon Franklin Coffman, Sr. of Fort Smith died November 29, 2010, at the age of 82. He was retired, having served most recently (19962003) as Chairman of the Workers’ Compensation Commission (AWCC), according to an obituary in the Arkansas Democrat Gazette. He earned his undergraduate degree from Arkansas Tech University and earned his juris doctorate from the University of Arkansas School of Law. Prior to working at the AWCC, he was a partner with Daily, West, Core, Coffman & Canfield law firm in Fort Smith. He was appointed Arkansas Supreme Court Special Justice and Special Chief Justice and was appointed to the Arkansas Judicial Discipline and Disability Commission. He was a member of the Arkansas Bar Association where he served on the Member Insurance Committee, Judicial Nominations Committee and Social Security Law Committee. He was a Fellow of the Arkansas Bar Foundation. He is survived by his wife Sandra; daughters, Debbie Richard and Ann Louise Cole; and sons, Douglas and Eldon F. Coffman Jr. Edwin Davis Cooper Edwin Davis Cooper of West Memphis died September 29, 2010, at the age of 65. He is a retired attorney and teacher from Mid-South Community College and East Arkansas Community College, according to an obituary in the Arkansas Democrat Gazette. He was a member of the Arkansas Bar Association. He is survived by his wife Leslie Cooper. Jane Rose Cromwell Jane Rose Cromwell of Forth Smith died December 24, 2010, at the age of 50. She earned her undergraduate degree from the University of Arkansas and her juris doctorate from the University of Arkansas School of Law. In 1976, she and her husband Bill Cromwell joined her father in private practice in the firm of Rose, Kinsey and Cromwell, according to an obituary in the Arkansas Democrat Gazette. Her legal 52

The Arkansas Lawyer

Ray A. Goodwin Ray A. Goodwin of Paragould died January 2, 2011, at the age of 72. He earned his undergraduate degree from Hendrix College and earned his juris doctorate from SMU Law School. Mr. Goodwin practiced law in Paragould for more than 45 years as a member of Paragould’s oldest law firm, most recently known as Goodwin Moore LLP. He was proud that he and his partner, Harry Truman Moore, practiced together for over 35 years, longer than any two other partners in the firm’s 121 year history, according to an obituary in the Arkansas Democrat Gazette. A true general practitioner, he had an active estate planning and probate practice and practiced criminal law in the state and federal courts, and handled complex business litigation. He was a member of the Arkansas Bar Association where he served on the House of Delegates and on numerous committees including the Committee for a Modern Judiciary, Senior Task Force, Construction Law, Health Law, and 100 Hours for 100 Years Committees. He was honored with a Golden Gavel award for his work as chair of the Legal Services for the Deaf Committee. He was a Sustaining Fellow of the Arkansas Bar Foundation. He served as President of the Greene-Clay County Bar Association. He is survived by his wife of 47 years, the former Kay Monk; and his sons, Mark and James Goodwin. Michael Edward Harrell Michael Edward Harrell of Fayetteville died November 18, 2010, at the age of 44. He was a former corporate attorney and was most recently employed with Legal Aid of Arkan-

sas, according to an obituary in the Arkansas Democrat Gazette. He earned his undergraduate degree from Hendrix College and earned his juris doctorate and a Masters of Business Administration from the University of Denver Law School. He was a member of the Arkansas Bar Association. He is survived by his wife of 21 years, Melissa Harrell; son Michael Edward (Mic) Harrell II; daughter, Margaret Rose; and father, Larry Harrell. Charles Wayne Harris Charles Wayne Harris of Fort Smith died November 10, 2010, at the age of 73. He earned his undergraduate degree from the University of Oklahoma in 1959 and earned his juris doctorate from the University of Oklahoma in 1962. After college, he served as a judge advocate general in the U.S. Army before accepting a position with the Fort Smith law firm then known as Warner, Warner, Ragon and Smith. He retired from the practice of law in 2009 after serving 43 years as a partner in the same law firm, now named Warner, Smith & Harris, PLC, according to an obituary in the Arkansas Democrat Gazette. He was a member of the Arkansas Bar Association. He is survived by his wife, Mae Harris; and sons Mark and Greg Harris. Raymond Barham Higgins Raymond Barham Higgins of El Dorado died November 11, 2010, at the age of 91. He earned his L.L.B. degree from the University of Arkansas School of Law in 1948, according to an obituary in the Arkansas Democrat Gazette. He was a member of the Arkansas Bar Association. He is survived by his wife, Patsy Higgins; and sons, Raymond Edward and John Paul Higgins. Harold L. King Harold L. King of Sheridan died December 7, 2010, at the age of 84. He earned his undergraduate degree from Ouachita Baptist College and earned his juris doctorate from the University of Arkansas School of Law. He served in the U.S. Army and served as an officer and a liaison pilot in the Allied Occupation of Japan from 1945-1947, according to an obituary in the Arkansas Democrat Gazette. He was honorably discharged in 1947 at the rank of 1st Lieutenant. He practiced law for over 50 years. He served as a Senator in the Arkansas General Assembly from 1971 to 1980 and Deputy Prosecuting Attorney for Grant County. He was a member of the Arkansas Bar Association. He was a Fellow of the Arkansas Bar Foundation. He is survived by his wife, Orlen King; sons, Harold

In Memoriam Lloyd Jr. and James King; and daughters, Sandra Burgess and Dianna Newton.

of Arkansas School of Law. He practiced law in Benton for over 40 years. He was a member of the Arkansas Bar Association where he served on the Specialization and House Committees. He volunteered his legal services to the Benton Senior Adult Center and to the Saline County Boys and Girls Club. He is survived by his wife of 51 years, Bobbye Lovell; daughter, Leslie Klanchar; and son, Steele Lovell. C. Wayne Matthews C. Wayne Matthews of Hot Springs died January 4, 2011, at the age of 67. He earned his undergraduate degree from the University of Arkansas and earned his juris doctorate from the University of Arkansas School of Law. He served in the U.S. Army and was awarded several medals, according to an obituary in the Arkansas Democrat Gazette. After being discharged from the Army in 1969, he began a solo law practice in Pine Bluff and also served as Assistant City Attorney for Pine Bluff. In 1971, he formed a partnership with John Harris Jones. The firm was later joined by Robert Tolson and they conducted the general practice under the name of Jones, Matthews and Tolson. In 1974, he was elected as the first full-time Prosecuting Attorney for the 11th Judicial District. He retired in 1994 after serving 20 years as Prosecuting Attorney. He was a member of the Arkansas Bar Association. He is survived by his wife Claire Matthews; and two stepsons, David and Michael Meroney.

Sam Laser Sam Laser of Little Rock died October 21, 2010, at the age of 90. He attended Little Rock Junior College from 1937-1939 and then the University of Arkansas School of Law until December 7, 1941, when he enlisted in the U.S. Navy, according to an obituary in the Arkansas Democrat Gazette. While serving in the Navy from 1941-1945, he survived the sinking of the Aircraft Carrier USS Yorktown at the Battle of Midway in 1942. He was discharged in December of 1945 as a Lieutenant USNR. He was honored with three Battle Star Medals. He returned from the war to finish his last year of law school at the University of Arkansas and in 1947 graduated with an L.L.B. degree. After graduation, he was admitted to practice law in the Arkansas state courts and the federal courts and began a practice of law that lasted until he retired in 2008. He founded the Laser law firm in 1952 where he was the senior partner. He was a member of the Arkansas Bar Association where he served as chair of the Young Lawyers Section and served on numerous committees. He was honored with the Outstanding Lawyer Award from the Arkansas Bar Association and Arkansas Bar Foundation. He was a fellow of the Arkansas Bar Foundation. He is survived by his wife, Anne Cockrill Laser; and his children, Alvin Laser, Phyllis Glaze, Mary Sue Brewer, Beth Ann Morris; Toran Hayes, Kimberly VanHoozer and Sterling Warnock.

Judge William S. Rader Judge William S. Rader formerly of Clarksville died August 29, 2010, at the age of 89. He earned his undergraduate degree from the University of the Ozarks and earned his juris doctorate from the University of Arkansas School of Law. In 1959, he moved to Missouri where he started the Rader and Grimm law practice where he practiced law until 1980, according to an obituary in the Arkansas Democrat Gazette. He then became an associate circuit judge until 1990. After retirement he served as a senior judge in various counties. He was a member of the Arkansas Bar Association. He is survived by his wife, Birdie Rader; and daughters Jane DeBoe and Beth Hennessey.

John F. Lovell, Jr. John F. Lovell, Jr. of Benton died November 26, 2010, at the age of 75. He served in the U.S. Army from 1955-1957 with one year of service in Japan, according to an obituary in the Arkansas Democrat Gazette. He earned his undergraduate degree from the University of Arkansas and earned his juris doctorate from the University

Glyn Elwin Sawyer, Sr. Glyn Elwin Sawyer, Sr. of Little Rock died December 1, 2010, at the age of 87. He earned his juris doctorate from the University of Arkansas School of Law in 1951. He was a member of the U.S. Naval Reserves and received his Service Commission in 1944 and was honorably discharged in 1946, according to an obitu-

ary in the Arkansas Democrat Gazette. Following graduation from law school, he practiced law in Hamburg working as general counsel for the Arkansas State Insurance Department. In 1966, he joined National Investors Life Insurance Company of Little Rock as general counsel and member of the Board of Directors, where he served until his retirement in 1988. He served three consecutive terms in the Arkansas State Legislature, representing Ashley county from 1950-1956. He was a member of the Arkansas Bar Association. He is survived by his wife of 57 years, Betty F. Sawyer; sons, G. Elwin Sawyer, Jr. and G. Scott Sawyer M.D.

Judge Randall L. Williams Judge Randall L. Williams of Little Rock died December 14, 2010, at the age of 86. He earned his undergraduate degree from the University of Arkansas at Monticello and earned his juris doctorate from the University of Arkansas School of Law. He served in Japan in the IX Corp. Eighth Army from 1947-48, according to an obituary in the Arkansas Democrat Gazette. He practiced law in Monticello from 1950-1960, serving in several official capacities, such as Deputy Prosecuting Attorney, Municipal Judge and State Representative to the Arkansas Legislature for Drew County. In 1960, he moved to Little Rock and served in the USDA General Counsel’s office. In 1961, he joined Sam Levine and formed a law practice, Levine and Williams in downtown Pine Bluff. He served as Deputy Prosecuting Attorney for Jefferson County. In 1970, he was elected as circuit judge of the Eleventh Judicial District in Western Arkansas and was re-elected in uncontested races until his retirement in 1993. He was a member of the Arkansas Bar Association where he served on the Model Code of Judicial Conduct Committee. He was served as chair of the Arkansas Judicial Council from 1984-1985. He is survived by his wife Joan Williams; daughter, Camille Bennett; stepsons, Joe Evans and Matthew Evans. n

Vol. 46 No. 1/Winter 2011 The Arkansas Lawyer


Memorial Gifts

Wall of Patrons The Little Rock law firm of Quattlebaum, Grooms, Tull & Burrow PLLC has been recognized for their generous contribution to the Arkansas Bar Foundation by the naming of Wall of Patrons at the Arkansas Bar Center. The Wall of Patrons, located on the first floor of the Arkansas Bar Center, gives tribute to the former bar center located at 400 West Markham Street. It contains photos of the former bar center and includes the actual marble Patrons’ block which lists names of the original Patrons of the Arkansas Bar Foundation.

Please remember the Arkansas Bar Foundation when you choose to make a memorial gift honoring a family member, a colleague or a friend of the profession. Acknowledgements are sent by the Foundation to the family advising them of the contribution. The Foundation also receives and acknowledges gifts honoring individuals for a special event in their lives. Gifts to the Foundation are tax deductible for federal income tax purposes and support the Foundation’s work in making scholarship funds available for law students, aiding in education of the public about legal matters, supporting projects that assist in improving and facilitating the administration of justice and funding other law-related charitable efforts. Contributions may be sent directly to the Arkansas Bar Foundation. The staff appreciates having the name of the family member to whom acknowledgments should be sent. Please feel free to call the Arkansas Bar Foundation at 501.375.4606 or 800.609.5668 for further information.

Landex Research Inc. PROBATE RESEARCH

Missing and Unknown Heirs Located with No Expense to the Estate Domestic and International Service for: Courts Lawyers Trust Officers Administrators/Executors 1345 Wiley Road, Suite 121, Schaumburg, IL 60173 Telephone: 800-844-6778 Fax: 800-946-6990 54

The Arkansas Lawyer

Arkansas Bar Foundation Memorials and Honoraria The Arkansas Bar Foundation acknowledges with grateful appreciation the receipt of the following memorial, honorarium and scholarship contributions received during the period October 1, 2010 through December 31, 2010: In Memory of Dan M. Burge Fred S. Ursery

In Memory of Ruby Stiles Hodges Cathi Compton and Bill Wilson

In Memory of Eldon F. Coffman, Sr. Rex M. Terry Mike Wilson

In Memory of Maggie R. Honea Shackleford, Phillips & Ratcliff, P.A.

In Memory of Robert C. Compton Judge James M. Moody In Memory of Keith Crass Jeffrey and Lester McKinley In Memory of Mrs. Eleanor R. Cristol Judge James M. Mixon In Memory of Jan Rose Cromwell Rex M. Terry In Memory of Winslow Drummond Judge James M. Moody In Memory of Kay Eisele Cathi Compton and Bill Wilson Federal Judges Association Judge James G. Mixon Quattlebaum, Grooms, Tull & Burrow PLLC In Memory of Judge William H. Enfield William H. Bowen

In Memory of Rick Johnson Bill Wilson

Contribution to the Arkansas Bar Foundation David M. Fuqua R. A. Eilbott, Jr. Scholarship Fund In Memory of R. A. “Reggie” Eilbott, Jr. and in Honor of Don A. Eilbott, his son Gibson & Keith, PLLC

In Memory of Senator Harold L. King B. Jeffery Pence In Memory of Sam Laser Charles T. Coleman Hyden, Miron & Foster, PLLC Edward T. Oglesby B. Jeffery Pence Judge John B. and Sue Plegge Fred S. Ursery

In Honor of Judge Robert F. Fussell Judge James M. Moody

In Memory of John F. Lovell, Jr. B. Jeffery Pence In Memory of Justice John Purtle B. Jeffery Pence In Memory of Cal Stukel Bill Wilson In Memory of Judge Randall Williams Jefferson County Bar Association

In Memory of C. Wayne Harris Rex M. Terry In Memory of Gwendolyn D. Hodge W. Christopher Barrier Robert L. Brown Judge Alice F. Lightle Edward T. Oglesby Gwendolyn L. Rucker James D. Sprott Fred S. Ursery

Honorarium, Scholarship and Contributions to the Arkansas Bar Foundation

McKinley Family Scholarship Fund The Arkansas Bar Foundation is grateful to Jeffrey and Lester McKinley for the recent establishment of a newly endowed scholarship fund with the Foundation.

William R. Overton Scholarship Fund Judge James M. Moody David Solomon Scholarship Fund Helena Bridge Terminal, Inc. Helena Marine Service, Inc. Roxanne Tomhave Wilson Scholarship Fund Sherry A. Burnett Judge James M. Moody Judge Henry Woods Scholarship Fund Judge James M. Moody Wright, Lindsey & Jennings LLP Scholarship Wright, Lindsey & Jennings LLP

Vol. 46 No. 1/Winter 2011 The Arkansas Lawyer


Classified Advertising

Index to Advertisers

MEDICAL MALPRACTICE. Fast, easy, flat-rate referrals to thousands of doctor-


experts, all board certified, all in active practice. Your satisfaction GUARANTEED

ABA Retirement


or your money back! Also, case reviews and opinion letters by veteran MD specialists

ABA Tech Show


for a low flat fee. Med-mal EXPERTS, Inc., 888-521-3601.

ADR, Inc.


Arkansas Community Foundation




Send details to: P.O. Box 13557, Denver, CO 80201.

Arkansas Investigations


Bank of America


CONSULTING ARBORIST. Expert witness for tree cases. Assessment reports, Value

Chrestman Group, PLLC


appraisal, Damage forensics. Serving all of Arkansas and the South. Bill Long, ISA

Executive Recruiters


Certified Arborist (#SO-1123) OSU Horticulture Alumnus, 18 yrs. experience.

Fastcase 23

888-785-TREE (8733).

Ferstl, Tom M.


Frost, PLLC


51-YEAR OLD LAW PRACTICE FOR SALE. C.W. Knauts, Attorney is offering his

Hamlin Dispute Resolution, LLC


law practice for sale. Business consists of: (1) Law Office Building, 3 offices for Attorneys,

Johnson, Smith & Associates, PLLC


library with built-in shelves, well located at 249 E. Main St., Piggott, AR; (2) Complete

Keisling & Pieper PLC


Arkansas library up-to-date; (3) All furniture, equipment, computers, printers, desks,

Landex Research


chairs, filing cabinets, book cases, legal forms & office supplies; (4) Commerical and retail

Law Offices of Darren O’Quinn


law listings in 12 collection directories; (5) Business presently has $55,000 per year in

Law Offices of David Williams


annual retainers. Business being offered for $149,000.00. Terms are negotiable. See or call

Law Pay


C.W. Knauts, Attorney, Box 344, Piggott, AR 72454; Phone (870) 598-2233; Fax (870)

Legal Directories Publishing


598-2772 for more details.


Inside Back Cover

McMath Woods P.A.


EXECUTIVE OFFICE FOR LEASE. Outstanding location on Capitol Avenue. Two

Mixon, Paul


executive offices for lease. Includes conference room, receptionist/paralegal, wireless inter-

Pulaski Heights Realty


net, full kitchen, and street level parking included. Corner of Capitol and Cross Streets.

Regions Insurance

Please contact Marietta Alphin at 501-376-6277 or email

Shift Creative


Smith, H. Mayo


Schwartz & Associates LLC


Taylor & Taylor Law Firm, PA


Tschiemer, Robert



Value of Membership Free online legal research with Fastcase Free meeting space at the Arkansas Bar Center $200/day value To reserve call 501-375-4606

Free Weekly Case Summaries 56

The Arkansas Lawyer

Back Cover

Mark your calendars Arkansas Bar Association Annual Meeting June 8-11, 2011

Professional Liability Program 40,000 lawyers are expert witnesses to our reputation. Top law firms trust CNA’s Professional Liability Program. As part of an insurance organization with $60 billion in assets and with an “A” rating by A.M. Best, we help clients manage malpractice risks.

See how our legal expertise can help your firm by contacting

Regions Insurance 888-272-6656

1500 Riverfront Drive, Suite 110, Little Rock, AR 72202 Vernon Dutton at 501-661-4959 ( Shirley Hinton at 501-661-4953 ( The only endorsed professional liability plan of the Arkansas Bar Association. / CNA is a service mark and trade name registered with the U.S. Patent and Trademark Office. The program referenced herein is underwritten by one or more of the CNA companies.

The Arkansas Lawyer magazine Winter 2011  
The Arkansas Lawyer magazine Winter 2011  

The Arkansas Lawyer magazine Winter 2011