Lawyer The Arkansas
A publication of the Arkansas Bar Association
Inside: Advising a Client Considering the Cloud Arkansasâ€™ Medical Marijuana and Employment Law Indigent Representation in Civil Cases Social Security Medical Records
Vol. 53, No. 1, Winter 2018 online at www.arkbar.com
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Little Rock 2226 Cottondale Lane, Suite 210 Little Rock, Arkansas 72202 Jason Earley, Managing Partner
Fayetteville 129 West Sunbridge Drive Fayetteville, Arkansas 72703 Shawn B. Daniels, Managing Partner
PUBLISHER Arkansas Bar Association Phone: (501) 375-4606 Fax: (501) 375-4901 www.arkbar.com EDITOR Anna K. Hubbard EXECUTIVE DIRECTOR Karen K. Hutchins EDITORIAL BOARD Anton Leo Janik, Jr., Chair Haley Heath Burks Luke K. Burton Dr. Frankie Martin Griffin Judge Brandon J. Harrison Ashley Welch Hudson Jim L. Julian Philip E. Kaplan Tory Hodges Lewis Drake Mann Gordon S. Rather, Jr. David H. Williams OFFICERS President Anthony A. “Tony” Hilliard Board of Governors Chair Paul W. Keith President-Elect Suzanne Clark Immediate Past President Denise Reid Hoggard President-Elect Designee Brian M. Rosenthal Secretary F. Thomas Curry Treasurer Joseph F. Kolb Parliamentarian Aaron Squyres Young Lawyers Section Chair Eric A. Marks BOARD OF GOVERNORS James Paul Beachboard Arkie Byrd Earl Buddy Chadick Sterling Taylor Chaney Brian M. Clary Grant M. Cox Bob Estes Buck C. Gibson Robert (Skip) L. Henry III Joshua D. McFadden J. Cliff McKinney II James McMenis Chalk S. Mitchell Brandon K. Moffitt Brant Perkins Colby T. Roe Robert M. Sexton Amy Lee Stewart Albert J. Thomas III Andrea Grimes Woods H. Wayne Young, Jr.
Lawyer Vol. 53 No. 1
12 Advising a Client Considering the Cloud Drake Mann 20 Requiring the Uncompensated Lawyer to Represent Civil Litigants is Unconstitutional: The Emperor Has No Clothes By Scott M. Strauss and Alexander W Chak 24 Indigents in §1983 Civil Rights Claims Deserve Appointed Legal Representation By James M. Moody and Mark P. Yablon 30 Interpreting Arkansas’ Medical Marijuana Statute: An Uncertain Landscape for Employees and Employers Alike By Robbin S. Rahman 34 Recognizing Pearls in the Medical Record of Meritorious Social Security Disability Cases By Dr. Frank Griffin, M.D., J.D. 42 A Message from Justice Robin F. Wynne
Cover photo by Michael Pirnique.
LIAISON MEMBERS Judge Stephanie A. Casady Patti Julian Judge John N. Fogleman Harry Truman Moore Karen K. Hutchins Richard L. Ramsay Dr. Casey Carder Rockwell 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, email@example.com. All inquiries regarding advertising should be sent to Editor, The Arkansas Lawyer, at the above address. Copyright 2018, Arkansas Bar Association. All rights reserved.
Contents Continued on Page 2
Lawyer The Arkansas Vol. 53, No. 1
in this issue ArkBar News
Board of Governors Report
A Call to Leadership
2017 CLE Speakers and Planners
Arkansas Bar Association Member Benefits
columns President’s Report
Young Lawyers Section Report
Eric A. Marks
Lawyer A publication of the Arkansas Bar Association
Vol. 51, No. 1, Winter 2016 online at www.arkbar.com
Arkansas Bar Foundation Memorials & Honoraria 49 In Memoriam
Anthony A. “Tony” Hilliard
Inside: Same-Sex Marriage Judicial Campaign Finance The Arkansas Supreme Court During World War II Arkansas LLCs Guardianships of Minors
Advertise in the next issue of The Arkansas Lawyer. Opportunities also available on ArkBar’s website & weekly ebulletins. www.arkbar.com/for-attorneys/ publications/the-arkansas-lawyer/ advertising
Arkansas Bar Association
2224 Cottondale Lane, Little Rock, Arkansas 72202
HOUSE OF DELEGATES Delegate District A-1: Andrew T. Curry, Susan K. Kendall, George M. Rozzell, Ryan Scott, Vicki S. Vasser-Jenkins Delegate District A-2: Earl Buddy Chadick, Leslie Copeland, M. Scott Hall, Brian C. Hogue, Sarah Coppola Jewell, Alan Lee Lane, Richard Kyle Lippard Joshua D. McFadden, John Pesek, W. Marshall Prettyman, Jr., Rick Woods Delegate District A-3: James A. Arnold II, Aubrey L. Barr, Michael Alan LaFreniere, Joseph Karl Luebke, Samuel M. Terry Delegate District A-4: Justice Paul Danielson Delegate District A-5: Johnny L. Nichols Delegate District A-6: John D. Van Kleef Delegate District A-7: Samuel J. Pasthing Delegate District B: Darryl E. Baker, Jordan Broyles, Carrie E. Bumgardner, Bart W. Calhoun, Tim J. Cullen, Thomas J. Diaz, Tony Anthony DiCarlo III, Jason W. Earley, Edie Ervin, Jesse J. Gibson, Shana Woodard Graves, Christopher Heil, Glen Hoggard, D. Michael Huckabay, Jr., Amy Dunn Johnson, Jamie Huffman Jones, Joseph F. Kolb, Victoria Leigh, Kathleen Marie McDonald, J. Cliff McKinney II, Jeremy M. McNabb, David Stockley Mitchell, Jr., Chad W. Pekron, John Rainwater, Scott Michael Strauss, Jonathan Q. Warren, David H. Williams, George R. Wise, Jr., Kim Dickerson Young, Heather Goodson Zachary Delegate District C-1: Roger U. Colbert Delegate District C-2: Michelle C. Huff Delegate District C-3: Robert J. Gibson, Hunter J. Hanshaw, Ryan M. Wilson Delegate District C-4: Kara Lynn Byars Delegate District C-5: Christopher Michael Bryant, Matthew Coe, Brett D. Watson Delegate District C-6: William Ellis Arnold III, Danny M. Rasmussen Delegate District C-7: Ginger M. Stuart Delegate District C-8: Kandice A. Bell, Margaret Dobson, George Leah Delegate District C-9: Katelyn Burch Busby, Lee Douglas Curry, Molly S. Shepherd Delegate District C-10: Amy Freedman, Joshua R. Thane Delegate District C-11: Sterling Taylor Chaney, Taylor Andrew King Delegate District C-12: Kurt J. Meredith, Brenda Sue Simpson Delegate District C-13: Brian M. Clary, John Andrew Ellis Law Student Representatives: Jenna Dale Poe, University of Arkansas School of Law; Taylor Pearson, UA Little Rock William H. Bowen School of Law
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protection from fiduciary liability under ERISA. Find out what many law firms like yours already know. It’s good to be different. The ABA Retirement Funds Program is available through the Arkansas Bar Association as a member benefit. Please read the Program Annual Disclosure Document (April 2017), as supplemented (July 2017), carefully before investing. This Disclosure Document contains important information about the Program and investment options. For email inquiries, contact us at: email@example.com. Securities offered through Voya Financial Partners, LLC (member SIPC). Voya Financial Partners is a member of the Voya family of companies (“Voya”). Voya, the ABA Retirement Funds, and the Arkansas Bar Association are separate, unaffiliated entities, and not responsible for one another’s products and services. CN1018-37928-1119D - 2017
ArkBar News MID-YEAR MEETING
FEBRUARY 7-9, 2018
The House of Delegates met on February 9.
The Association held its Mid-Year Meeting in Little Rock February 7-9, 2018. The meeting included two and one-half days of CLE seminars held at the Capital and Marriott Hotels. Cindy and Joe Kolb of Little Rock served as the chairs of this yearâ€™s meeting. Stephens Insurance, LLC sponsored the Wednesday afternoon reception at the Capital Hotel following the four-hour AttPro Risk Management seminar. Association President Tony Hilliard welcomed around 100 attorneys and judges at the Thursday reception in the Riverview Room of the Marriott Hotel. Thank you to the ArkBar Annual Sponsors, volunteer speakers, planners and the almost 200 registrants who made the meeting a success. Be sure to join us June 13-15 in Hot Springs for the Annual Meeting.
ArkBar President Tony and Mary Hilliard
Bill Cobb, Richard Henry, Patrick McAlpine and Joe Ramsey
Mid-Year Meeting Chairs Cindy and Joe Kolb
ArkBar President-Elect Designee Brian Rosenthal and President-Elect Suzanne Clark
Joe Kraska, Pamela Abrams and Kevin Archer
ArkBar Social Media Committee Chairs Jordan Rogers and Will Gruber
Tabi Lipscomb enjoyed the corn toss at the Thursday afternoon reception.
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Oyez! Oyez! ACCOLADES Randi F. Hutchinson received a Presidential Appointment to serve as the Chief Counsel of the Federal Motor Carrier Safety Administration at the U.S. Department of Transportation. Phil Kaplan was featured on the cover of the December issue of Super Lawyers with an article on his long and impressive legal career. FourthAmendment.com, the blog of Little Rock attorney John Wesley Hall, has been named one of the 100 best digital media for a legal audience by the American Bar Association. Bill Bridgforth was recently inducted into the Arkansas Agriculture Hall of Fame. Uché U. Ewelukwa Ofodile is the most recent E.J. Ball Professor of Law at the University of Arkansas. Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C. member Benjamin D. Jackson has accepted membership to the International Association of Defense Counsel. Nabholz Executive Vice President and Corporate Counsel Andrea Woods was recently admitted to the Construction Lawyers Society of America. The Gaines House honored Attorney General Leslie Rutledge with the Sandra Wilson Cherry Award.
APPOINTMENTS AND ELECTIONS Duane Kees took the oath of office to become the United States Attorney for the Western District of Arkansas on January 5. Cody Hiland took the oath of office to become the United States Attorney for the Eastern District of Arkansas on January 26. Allan Gates, a partner in Mitchell, Williams, Selig, Gates & Woodyard, was named President-Elect of the American College of Environmental Lawyers.
WORD ABOUT TOWN Mitchell Williams Selig Gates & Woodyard law firm announced that: Jordan Wimpy has joined the firm as Counsel in the Little Rock office; Devin R. Bates and Katie W. Branscum have been hired as associate attorneys in the Little Rock office; and Natalie M. Dodd and Jacob McElroy have been hired as associates in the Rogers office. Wright Lindsey Jennings announced that attorney Stephen R. Lancaster has been elected by the partnership to serve as managing partner and that attorney Adrienne L. Baker has been selected to assume the role of chief operating officer. Baker is the firm’s first female COO. The firm also announced four new partners: attorneys Neemah Esmaeilpour, Jason Hendren, Jaimie Moss and Glenn Ritter and four new associate attorneys: Daveante Jones, Jessica Pruitt Koehler, Nathan R. Finch and Sidney L. Leasure. The Barber Law Firm announced that Georgia Robinette joined the firm. Campbell Campbell Edwards & Conroy, P.C. announced that Christopher B. Parkerson has been appointed to the Board of Directors of the firm. The Rose Law Firm announced the election of Robyn Allmendinger as the first female managing member of the firm and that attorneys Mark M. Henry and Adam Hopkins of the Fayetteville law firm Henry Law Firm joined the Rose Law Firm. Carney Bates & Pulliam, PLLC announced that Lee Lowther joined the firm as an associate attorney. Cypert, Crouch, Clark & Harwell, PLLC, of Springdale announced the firm name has changed to Crouch, Harwell, Fryar & Ferner, PLLC. Richard L. Bell announced that Bell and Company has merged King Ball & Company into its North Little Rock offices. Greg Northen and Laura D. Johnson have each been voted in as Directors of the law firm Cross, Gunter, Witherspoon & Galchus. Please send Oyez announcements to firstname.lastname@example.org.
Deadline for submission of Annual Award Nominations due Friday, March 16, 2018
It is time to nominate deserving candidates for this year’s Arkansas Bar Foundation and Arkansas Bar Association Annual Awards. The awards open for nomination are: • Outstanding Lawyer Award • Outstanding Lawyer-Citizen Award • C.E. Ransick Award of Excellence • James H. McKenzie Professionalism Award • Equal Justice Distinguished Service Award • Outstanding Jurist Award • Outstanding Local Bar Association These awards will be presented at the Annual Meeting in Hot Springs in June. You are encouraged to nominate Arkansas lawyers, judges and local bar associations who deserve recognition. Nomination forms may be submitted by any Association member or Foundation Fellow. Forms are available at www.arkbar.com/for-attorneys/award-nominations or you may submit a written letter of nomination to Ann Pyle, at the Arkansas Bar Foundation at 2224 Cottondale Lane, Little Rock, Arkansas. Please call Ann Pyle at 501-375-4606 X 110 with any questions.
Advertise in the next issue of The Arkansas Lawyer. Opportunities also available on ArkBar’s website & weekly ebulletins. www.arkbar.com/for-attorneys/ publications/the-arkansas-lawyer/ advertising
Vol. 53 No. 1/Winter 2018 The Arkansas Lawyer
INTERACTIVE TIMELINE SEE WHAT YOU’VE BEEN MISSING WITH DATA VISUALIZATION TOOLS. FREE TO MEMBERS OF THE ARKANSAS BAR ASSOCIATION. LEARN MORE AT:
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Why is Defeating Issue 1 So Important? Anthony A.”Tony” Hilliard
I’ve been reading Ganesh Sitaraman’s “The Crisis of the Middle-Class Constitution, Why Economic Inequality Threatens our Republic.” The book proposes that a strong, educated middle class is essential to maintaining our Constitution and democracy and the decline of the middle class with the growing economic divide between the haves and the have nots is a direct threat to our Constitution. I don’t fully agree with the book, but I do agree we have clear threats to our Constitutions, both federal and state, and most of that threat is internal. If nothing else, the book made me wonder why democracy has flourished in the United States for the past 240 years while others fail, and what do I see as the threats to that same democracy? Free press and education: Thomas Jefferson wrote “[t]he basis of our governments being the opinion of the people, the very first object should be to that right; and were it left to me to decide whether we should have a government without newspapers or newspapers without a government, I would prefer the latter. But I should mean that every man should receive those papers and be capable of reading them.” Thomas Jefferson to Edward Carrington, 1787. Large multinational corporations control so much of our news outlets. Even locally they sell the CEO’s
political views in news programs while presenting it as “news.” At the same time, I don’t know who to trust on the Internet. We also continue to see a re-segregation of our schools and disparity in results. One voter, one vote: In October the U.S. Supreme Court agreed to hear a Wisconsin case over legislative districts that are accused of unduly favoring Republicans. They have also agreed to hear a Maryland case over legislative districts that are accused of unduly favoring Democrats, and as I’m writing this, the Chicago Tribune reports that the Court is considering a North Carolina case on the same issues as well. I look forward to the Court’s review of this issue. Liberty and justice for all: If we don’t have justice for all we will have justice for none. I don’t always agree with a judge’s opinion, especially when he rules against me, but I’ve never doubted the judge’s integrity. Further, the court rules that guide how cases are presented are critical to ensuring justice for all. So here is why we must defeat Issue 1: 1. Amendment 80 to the Arkansas Constitution gave the Arkansas Supreme Court the exclusive right to set court rules with the Legislature able to annul or amend the rule by a 66.67% vote of the membership in both houses. Issue 1 reduces
that down to a 60% vote of the membership of both houses. See Issue 1, Section 4. 2. Issue 1 would allow the Legislature, by a vote of 60% in both houses, on its own initiative, to enact laws establishing rules of pleading, practice or procedure, including evidence, and such rules would supersede conflicting rules established by the Arkansas Supreme Court. See Issue 1, Section 3, Subsections (b) – (e). Also note that while Amendment 80 required a 66.67% vote of the membership of both houses to change a present court rule, Issue 1 does not use the phrase “of the membership” when requiring a 60% vote to adopt or change any of the court rules, meaning 60 affirmative votes in the House and 23 in the Senate. Under Issue 1, it appears to me that if a quorum is present, 60% of that quorum may vote to set the rule. 3. Presently, only 16 of the 135 members of the Legislature are lawyers. I don’t presume that only lawyers can understand the constitutional issues and realities of setting court rules, but it sure helps. Further, our Justices understand that courts have an obligation to protect the constitutional rights of all persons, including the least, the last and the lost of our state, not just satisfy someone who contributed to the legislator’s campaign. If you don’t think that will be a
Tony Hilliard is the President of the Arkansas Bar Association. He is a partner with the Ramsay, Bridgforth, Robinson and Raley, LLP firm in Pine Bluff.
problem, look at the video on YouTube “Arkansas Tort Reform 2017” by Advance Arkansas to listen to that ad for Issue 1. If you want to see a copy of Issue 1 it can be found at http://www.arkleg.state.ar.us/ assembly/2017/2017R/Bills/ SJR8.pdf. There are other groups fighting Issue 1 focusing on the tort limitation issues within Issue 1. Frankly, that will be an easier sell to the public. However as reported to our House of Delegates last February, our Legislation Committee by a 10 to 1 vote determined that the Bar Association should take a stand against what was then SJR8 and is now Issue 1 based on the Legislature’s attempted power grab of the court’s rulemaking authority. This has been the position of the Bar ever since that moment. I strongly believe the attempt by the legislative body to have the unrestricted ability to set court rules is a direct attack on liberty and justice for all and demands that we take this stand. It is you and me speaking in our Rotary Clubs and with our friends that will defeat Issue 1. It is us taking a stand. We will be criticized and called greedy because part of Issue 1 limits contingency legal fees. This is about liberty and justice for all. Tag, we’re it.
Vol. 53 No. 1/Winter 2018 The Arkansas Lawyer
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Prepared By Arkansas Bar Association Young Lawyers Section
8th Edition Revised May 2017
Domestic Violence: A Practical Guide for Navigating the Legal System in Arkansas
Domestic Violence: A Practical Guide for Attorneys, judges And Court Clerks
NEW ADMITTEE SURVIVAL GUIDE
ETHICS AND SOCIAL MEDIA: A GUIDEBOOK FOR ARKANSAS ATTORNEYS
and Life to Go:
A Legal Handbook for Young Arkansans
Prepared by Arkansas Bar Association Young Lawyers Section Revised Edition 2011
The YLS is an active and growing division of the Arkansas Bar Association, one that is committed to providing useful tools for its members and helping the community through outreach and public service. The YLS has published several handbooks that are available as free downloads to all ArkBar members at https://www.arkbar.com/ for-attorneys/publications. Most recently, an updated “Guide to Arkansas Statutes of Limitations” was released. The YLS recently published a pair of companion handbooks on domestic violence. Written for domestic violence survivors, “Domestic Violence: A Practical Guide For Navigating the Legal System in Arkansas,” is a self-help guide for survivors of domestic violence that explains a survivor’s legal rights and how to get help from the legal system. The handbook will guide people through the civil, domestic, and criminal elements of a domestic violence case. YLS printed 20,000 copies of this handbook and will distribute hundreds of copies of these printed handbooks to every circuit clerk and domestic violence shelter in the state. In conjunction with the survivors’ handbook, the committee also completed “Domestic Violence: A Practical Guide for Attorneys, Judges and Court Clerks.” This handbook is a guide for attorneys who represent or work with survivors of domestic violence. It is divided into two sections: Domestic Violence in the Civil Context, and Domestic Violence in the Criminal Context, and is available on the Association’s website at http://www.arkbar.com/for-public/legalassistance/legal-pamphlets. The “New Admittee Survival Guide” is a resource for new attorneys to help with the transition from law school to law practice. “Ethics and Social Media: A Guidebook for Arkansas Attorneys” is intended to give lawyers insight into the world of social media and how its use—for both personal and business purposes—intersects and interplays with the Arkansas Rules of Professional Conduct. “18 and Life To Go: A Legal Handbook for Young Arkansans” is a handbook tailored to graduating high school seniors and has been used in community outreach programs statewide.
By Eric A. Marks The sound of the creaking door being slammed caught my attention at first; the weathered gentleman then ambled towards the front door, leaning on his equally weathered SUV to assist him as he climbed the curb. The SUV had clearly seen some use through the years and had been subject to some owner alterations. As the prospective client walked towards the door, I noticed the bare metal bumper, clearly an aftermarket addition, that had one simple phrase etched prominently in all caps. That’s right, his bumper said “Get Some.” I could not help but smile at the thought of him unwittingly promoting offensive driving as opposed to defensive driving and the possible liability implications should he ever have a motor vehicle accident. After the client intake, it was clear that this was not simply a bumper logo; it was the gentleman’s motto. He was tenacious and not one to let things linger. He was energetic even in his advanced age. I eventually asked his motivation for the phrase and he told me, “I attack each day. I believe you have to get up and get after it everyday. I don’t sleep much, and don’t have much patience. I like to get things done.” I couldn’t argue with that, and later that day I found myself more motivated and realized his “get some” energy had rubbed off on me a little. As we enter the time of year
Eric A. Marks is the Chair of the Young Lawyers Section. He is an attorney with White & Marks PLLC in Arkadelphia. when there are no major sporting events, hunting seasons wind up, and the weather can make enjoying outdoor activities difficult, motivation can sometimes be tough to find. Shaking off the winter funk can be tough, but now is the time to try—now is the time to get some! What better place to start than getting involved with your local bar or participating in one of the many programs offered by the Arkansas Bar Association. The Young Lawyers Section (YLS) has numerous opportunities for those looking to be involved. The YLS participated in the American Bar Association Fall conference in Denver, Colorado, and the Mid-Year meeting in Vancouver, British Columbia. We are proud to have sponsored a YLS CLE track on February 9 at ArkBar’s Mid-Year Meeting, including a forum to interact with district judges from across the state. YLS will be hosting several Wills for Heroes events across the state this spring and hope you can take the time to participate in one near you. We also have openings for officer positions and on committees, that can allow you to become more hands on with issues that confront young lawyers and the legal profession in our state. In sum, I encourage you all to shake off that winter funk and “get some” by getting involved with the YLS.
Vol. 53 No. 1/Winter 2018 The Arkansas Lawyer
Report from the December 2017 Board of Governors Meeting By Karen K. Hutchins The Association’s Board of Governors met December 1-2, 2017, at the Arkansas Bar Center in Little Rock, Arkansas. Board Chair Paul Keith presided over the meeting. President Hilliard welcomed Brian Rosenthal as the new President-Elect Designee. President-Elect Clark reported on the Southern Conference of Bar Presidents event she attended in Memphis, TN. Patti Julian, lobbyist for the Association, updated the Board on her efforts to monitor the Tax Reform & Relief Task Force as well as the Code Revision Commission’s meetings reviewing the renewal process for the selection of the publisher of the Arkansas Code. PAC Chair Bob Estes encouraged all governors to donate to the PAC whose sole purpose is to help Arkansas Bar Association members get elected to the Arkansas Legislature. Executive Director Karen Hutchins reported on the increased membership since August as well as the new Patron and Benefactor members. Hutchins also updated the Board that two new staff members were hired since their August meeting. Ann Bridgman, Marketing and Information Specialist, and Alexis Teal, CLE Coordinator, joined the staff this fall. Hutchins presented the request to add www.arkansasfindalawyer.com to the Association’s Advertising policy. The Board approved. President Hilliard introduced Chief Justice Kemp who presented the emerging trend on the Supreme Court’s Strategic Planning efforts. Justice Kemp explained his plan to work toward increasing funding to update court security. He encouraged Arkansas Bar members to join the judiciary in making community presentations about the judicial process and its importance. Members who want to participate can contact Marty Sullivan at the Administrative Office of the Courts for the PowerPoint presentation. Brian Rosenthal, Co-Chair of the Member Benefits Committee, presented their recommendations to add several mem10
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ber benefits that will bring great value to our members. The Board approved the following new benefits: Identillect-Delivery Trust®—an email security designed to keep attorney-client digital communications private, simple, seamless and affordable. It is Identillect’s belief a successful email security solution shouldn’t be complex, but rather reinforcing the trust you have developed to create a lasting client relationship. Lexology—an electronic, content-driven legal newsfeed service provided directly to your email or the Lexology webpage. Members can choose daily or up to weekly emails. Members can select their customized content based on their areas of interest. Answerfone—Members receive a discount for services including live receptionist, live transfers and live messages. Spanish speaking live answer options are available. All services are available 24/7. Brooks Brothers—Members can enroll to receive a free Brooks Brothers Corporate Membership Card which affords a 15% savings on full-priced merchandise at all Brooks Brothers U.S. and Canadian stores, by phone and online. The Finance Committee made a recommendation at the August Board of Governors meeting that a depreciation funding policy be developed. At the December Board meeting the Finance Committee’s proposed specific policy changes to implement the funding of depreciation were adopted. The Board approved amendments to the Balanced Budget and Investment Policies to provide for the addition of depreciation funding. Additionally, in accordance with these revised policies, the Board approved the creation of a reserve fund. Jason Hendren reported for the Arkansas Bar Foundation and its successful Rockin’ on the River Fundraiser. Joe Kolb, who served along with his wife Cindy as Chair of the Mid-Year meeting, presented the meeting program overview. Judge Mary McGowan
shared plans for the 2018 Annual Meeting. She stated that the Annual Meeting will highlight section programs. In response to a question regarding the Association’s position on SJR8/Issue 1, President Hilliard addressed the process and actions that occurred to date that led to the association’s position to oppose SJR8/Issue 1. A motion was made and seconded to recommend to the House of Delegates that it vote to take a position on SJR8/Issue 1 at its 2018 Mid-Year meeting in February. After a full Board debate, the motion failed. Paul Keith presented an update from the DDay Legislation Question Committee. Will Gruber and Jordan Rodgers provided the Website and Social Media Committee report and their efforts to engage members in the Association’s social media outreach. Robert Jones presented the Audit Committee’s report to the board. The Audit committee annually reviews the 990s and the audit. CLE Committee Chair Dr. Casey Rockwell presented a report explaining the efforts of the committee to provide more options for in-person and live webinar CLEs throughout the upcoming year. Cliff McKinney, Chair of the Governance Committee, reported on the progress of reviewing all aspects of the Association’s Governance Structure. Mock Trial Committee Chair Anthony McMullen asked for volunteers for the state mock trial competition and discussed moving forward to create an entity to host the 2022 national Mock Trial. The next meeting of the Board of Governors will be held April 20-21, 2018, in Jonesboro at the Hilton Garden Inn.
Karen K. Hutchins, J.D., CAE, is the Executive Director of the Arkansas Bar Association.
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Advising a Client Considering the Cloud By Drake Mann
ew developments have changed commerce and technology with the speed and scale of cloud computing. An industry now worth around 130 billion dollars barely existed a decade ago. The internet has enabled computing resources to be gathered into huge datacenters—dense clusters of infrastructure and technical specialization—placed at a distance from the consumer of those computing resources. Efficiencies of scale followed, and the cloud now seems to be both everywhere and nowhere. The growing ubiquity of cloud computing makes it increasingly relevant to any lawyer whose practice includes reviewing clients’ contracts. Cloud computing may seem mysterious or technical, and, too often, businesses move “to the cloud” with little to no thought about the legal consequences the cloud may bring. This article offers some background knowledge a lawyer may find useful in advising clients considering a move to cloud computing.
What is the Public Cloud1 and What are its Key Features? “Cloud computing is a model for enabling ubiquitous, convenient, on-demand network access to a shared pool of configurable computing resources (e.g., networks, servers, storage, applications and services) that can be rapidly provisioned and released with minimal management effort or service provider interaction.”2 Its essential characteristics include: • broad network access, which enables customers to access resources whenever and wherever they have access to the internet, including both workstations and mobile devices; • on-demand, self-service provisioning of computing resources by a customer without interaction with the provider’s staff; •rapid elasticity, which means that computing resources can be rapidly expanded or reduced, in some cases automatically, to match a customer’s demand; 12
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•measured service, meaning metered control, monitoring, reporting, and billing; and •multi-tenanted resource pooling, whereby efficiencies of scale are gained from gathering computing and networking infrastructures into large datacenters. Among others, these include efficiencies in purchasing, systems management, physical security, and energy consumption. Software enables physical servers to be joined or divided into virtual servers or other computing abstractions so many customers share resources.3 Computing Regarded as a Standardized, Delivered Utility Cloud computing technologies lead to a conceptual reframing of computing power and how that power is delivered and used. Cloud technologies also alter a chain of legal and commercial relationships in fundamental ways. Cloud providers can be thought of as delivering units of computing services as standardized commodities, much as public utilities deliver electric power or natural gas. (Consider that the variety of those computing services and how customers use them are potentially as different as electricity is from gas.) Legal and commercial relationships change in that transactions that were formerly one-time sales contracts for licenses and hardware become periodic contracts for services. Accounting, taxation, and financing changes follow; what were once capital expenses become operating expenses, and startups that could not afford a capital outlay to buy computers might be able to fund monthly outlays for computing power, particularly if its business model matches its cashflow to computing-service costs. What Commercial Roles Exist in the Cloud? The parties to cloud computing contracts fall into three broad
categories: the cloud-service provider, the cloud-service partner, and the cloud-service customer.4 Cloud-service Providers The Big Four Providers There are four large cloud-service providers: Amazon Web Services (AWS), Google Cloud Platform, Microsoft Azure, and IBM Cloud Computing. AWS is by far the largest and offers the widest array of services. These providers’ business models depend on delivering a high-volume, low-cost, uniform service. There is no cost-effective way for these providers to negotiate special terms for individual members of their large customer base, so click-through terms of service are the norm. Lawyers can still serve clients as counselors, calling attention to the moresignificant risks of the cloud, some of which are discussed further below. Smaller Providers There are countless smaller cloud-service providers. Some of these smaller providers may nevertheless be large and substantial enterprises. The services these providers offer vary. Some may merely be regional datacenters providing simple storage, for example. Many, if not most, are Software as a Service (SaaS) providers serving a particular market. Some examples include cloud-based elec-
tronic medical records services for healthcare providers, tools for realtors to list properties and manage documents, and cloud-based environments for education. The relative bargaining power of these smaller providers means that most Arkansas lawyers’ clients can negotiate at least some of the terms of their cloud-service agreements. These providers’ service agreements have many features (discussed further below) that are common to the large providers’ agreements. Cloud Providers’ Supply Chains Be aware that, frequently, smaller SaaS providers will buy cloud resources from (1) one of the big four cloud-service providers, (2) other smaller providers, (3) cloud-service partners, or (4) any combination of them. That is, there may be a long, complex supply chain of cloud providers upstream from the SaaS vendor with which a lawyer’s end-user client proposes to contract. For example, a smaller SaaS provider may have developed a cloud-based service that is tailored for a particular market (e.g., orthodontists or car dealers or realtors or law firms). Such a provider might first have designed and tested its software with AWS Developer Tools. It might maintain its database using Microsoft’s Azure SQL Database. It might use Google’s BigQuery to store and analyze large
sets of its customers’ data.5 And it might ultimately conduct all of its operations having no datacenter of its own. Although the topic is beyond the scope of this article, it is appropriate for a lawyer advising a client considering business-critical cloud services to learn whether the provider itself depends on a cloud-service supply chain, and, if so, what potential impact the terms of service at each link along that chain may have on the lawyer’s end-user client. Cloud-service Partners Cloud-service partners comprise a range of ancillary service providers, such as auditors and brokers. Cloud auditors. Cloud auditors are cloudservice partners that conduct independent assessments of providers’ cloud services. If a cloud customer does not have the technical expertise to determine whether a cloud provider is meeting promised performance metrics under a service level agreement, for example, or if a cloud provider will not grant a customer sufficient access for the customer to assess the provider’s security or privacy controls, the customer may use an independent, qualified auditor to evaluate and report on these services. Cloud brokers. Cloud brokers manage the use, performance, and delivery of cloud services, and may negotiate relationships
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between cloud providers and cloud customers. Brokers may also participate in a cloud-service transaction in some way. For example, consider a broker that is especially familiar with the service needs and security threats to the healthcare industry. While the big four providers tightly limit liability for their services, a broker in this position might be willing to expose itself to more liability between parties it knows because it is in a better position to manage service needs and to control risks in a way the larger providers cannot. (Of course, a customer relying on a broker’s acceptance of this sort of liability would want to know about the broker’s financial ability to fulfill its promises.) Cloud-service Customers Given the current state of the industry, most Arkansas lawyers’ clients will be cloudservice customers using SaaS. These services may be offered by one of the big four providers or by a smaller cloud provider. Examples of these cloud-based services include Microsoft’s or Google’s office suites (word processing, spreadsheet, and presentation tools), Salesforce.com’s customer relationship management products, or various industryspecific products, such as those for healthcare providers, lawyers, accountants, realtors, engineers, or educators. If an on-premises software product does not yet have a cloudbased equivalent, it likely soon will. A lawyer tasked with reviewing an SaaS agreement (or any cloud contract) should learn how a typical cloud contract allocates the parties’ rights, liabilities, and obligations. The Shared Responsibility Model The public cloud alters the underlying commercial framework of computing, as noted above, as well as the framework of responsibilities among the customer, the vendor, and others in the vendor’s supply chain. Under what is known as the “shared responsibility model,” the parties to a cloud contract are generally responsible for those technologies and services that each party controls. In an SaaS relationship, the cloud provider is ordinarily responsible for buying, maintaining, and updating computer servers, operating systems, network infrastructures, and end-user software programs. Customers, on the other hand, are only responsible for configuring the software, inputting their data, and managing their access to the inter14
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net. (It is important to note that customers are responsible for maintaining appropriate privacy and security controls within the customer’s environment; many customers overlook this fact to their peril.) Cloud providers are responsible for allocating computing resources to meet the cloud customer’s needs, keeping the computing infrastructure physically and technically secure, and ensuring customers’ data remain available through replication processes and backups. By paying for cloud providers to relieve the customer of these responsibilities, cloud customers can focus on their core businesses. What Legal Services Do Cloud Clients Need? Public-cloud-service relationships share many basic premises, features, and risks. Some familiarity with them is useful whether negotiating terms for a cloud customer with enough relative bargaining power to do so or advising a client considering whether to accept any cloud provider’s click-through terms of service. Preliminary Matters Before approaching the nitty gritty of the agreement itself, the lawyer should consider discussing the client’s business processes and its use of computing resources. Every client—especially one proposing to use cloud computing—should take time to inventory its data, map data and business-process flows, and reflect on dependencies in its prospective cloud supply chain, such as the reliability and availability of the client’s internet connection. The lawyer should ask whether the client has a written data-security policy; if the client does not have one, the lawyer should advise the client to create one. (The National Institute of Standards and Technology publishes valuable guidance for best practices in cybersecurity.) If advising a smaller cloud-service provider, the lawyer should help the client account for its own cloud-based dependences. These can include upstream suppliers of cloud services; the size, experience, and abilities of their staff and management; virtualization software providers; and datacenter security and vulnerabilities, including power supplies and backup systems, exposure to natural disasters, and the capacities of their network suppliers. The lawyer should discuss with a cloud-provider client the risks in failing to make realistic commitments.
Both cloud customers and cloud providers should consider that, as a new industry, cloud computing presents the potential for informational asymmetry and related incentives for silence in contracting. That is, as the cloud industry matures, parties’ experiences and their litigated disputes will likely lead to more express terms. Common Risks for Cloud Customers Lock in. A lawyer should discuss with a client the termination of a cloud-service contract. Clients should consider that the time may come when they no longer want the cloud service. Some services convert customers’ data into a proprietary format that is costly to reverse engineer. Clients would therefore be well-advised to consider that risk before entering a cloud-service agreement. Clients should also review what services they might need from the provider to retrieve their data. Often cloud providers offer, free of charge, generous customer assistance for on-boarding customer data, but either will provide little to no assistance in returning a customer’s data on termination or will require payment for that assistance. Hidden costs. In addition to unanticipated data-migration costs at termination, a lawyer should help a client thoroughly analyze the life-cycle cost of cloud services. What looks like savings in the short term may result in undesirably burdensome long-term costs over the life of a cloud-service agreement. A lawyer should also alert a client to potential costs arising from one of the cloud’s greatest attractions, automatic provisioning of additional computing resources. If misconfigured, a cloud service may automatically provision cloud computing resources in an unintended and unexpected way, resulting in sudden, crushing expenses to the customer. Customers should know well the technical features of the products they are using, develop robust internal monitoring procedures, and use the provider’s usage monitoring tools to manage this risk. Amendment of terms of service. Virtually all cloud providers large enough to require the use of click-through agreements reserve the right to amend unilaterally the terms of service (TOS). (The one notable exception is Salesforce.com, an on-line Customer Relationship Manager and the first big SaaS provider, which states that no modification to the TOS will be effective unless written and signed by the party against whom the modi-
fication is to be asserted.) Most cloud providers actually put the onus on the customer to check the provider’s website for changes, many give no notice when a change is made, and some do not point out what terms have changed. As a result, customers are exposed to the risk of changes that disrupt what may have become a core business process for the customer. Some providers allow amendment-based cancellations of service, but the costs associated with termination may be significant. Security. Providers invest heavily in physically securing their datacenters, deploying the most up-to-date technical controls, and maintaining robust administrative policies and procedures to protect their systems. A lawyer should help ensure clients do their part by implementing appropriate security controls. The more obvious password, encryption, and malware controls are not sufficient. Customers must implement strict procedures for controlling their cloud environments. Many notorious data breaches did not result from bad actors breaching cyber-security barriers. Rather, customers had simply misconfigured their cloud services. In one famous example, a company hired by a major political party to analyze voter data exposed the company’s analysis of 198 million American voters, including sensitive identifying details, by leaving open a public-facing cloud server, unprotected by any security barriers at all. Providers’ Limitations on Liability and Remedies. A lawyer negotiating a cloud-services agreement should know that providers typically impose strict limits on their liability—a sensible idea from the position of a provider of a cheap, standardized commodity. Most often, a provider’s liability is limited to an amount represented with reference to the customer’s use over a given period, such as 125% of the customer’s preceding six-months’ paid fees. Lawyers should also attend to a provider’s remedies in the event of a customer’s breach of an acceptable use policy or, more often, a failure to pay. A cus tomer whose business depends on a cloud service would potentially be crippled if a provider suspended service on little or no notice. Data ownership and licensing. Cloud agreements vary in their clarity over the ownership of data uploaded to cloud services. Lawyers should advise clients to consider whether the cloud provider’s agreements
Is the Cloud Right for Your Practice? The most dangerous aspects of cloud computing for a legal practice may be its invisibility and convenience, qualities that suit most businesses but that lawyers should consider from the perspective of their unique professional responsibilities. Dropbox, Microsoft 365, Google Drive, and many others are easy to use and widely adopted. Their economy and convenience work for most businesses. But a confidential communication between a lawyer and client is among the most protected of all information in the world. Lawyers owe their clients a duty to handle this and all of their clients’ sensitive information with care. Lawyers should be aware when they entrust sensitive information to third parties and take reasonable steps to protect the confidentiality of their clients’ information. Before the 1980s, law practices ran on typewriters and copiers. In the 1980s, desktop computers introduced word processing, and information moved from papers in a file folder to graphic representations of folders on a computer’s hard drive. In the early 1990s, office desktop computers became networked with each other, and the information in those abstract folders moved to a server down an office hallway. Advances in telecommunications soon connected on-site networks to the world wide web, and information could instantly move from a law firm’s servers down a real hallway to someone else’s servers far away—into the “cloud.” Client information does not move itself, and a lawyer should exercise due care when choosing to move sensitive client information away from the lawyer’s servers that are located within premises the lawyer con-
trols. Arkansas Rule of Professional Conduct 1.1 requires that “[a] lawyer shall provide competent representation to a client . . . [which] requires the legal knowledge, skill, thoughtfulness and preparation reasonably necessary for the representation.” In 2014, the Supreme Court of Arkansas amended Comment 8 to Rule 1.1 to include the following: “To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology . . . .” The drafters of the Model Rules of Professional Conduct crafted this amendment to address technological developments such as cloud computing. Professional-responsibility authorities in at least 20 states have published more expansive guidance regarding lawyers’ use of cloud-computing services. Generally speaking, Continued on page 17
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regarding data ownership and any attendant rights—licensing of uploaded data, for example—are compatible with the nature and sensitivity of the customer’s data. Common Terms in Cloud-Service Agreements Although expressed in many forms, cloud-service agreements usually contain the following elements: service level agreement, data ownership policy, acceptable use policy, security policy, data protection policy, business continuity policy, upgrade policy, and termination policy. There are currently no standard naming conventions, structures, or forms for these agreements. Service Level Agreement. A service level agreement ordinarily sets out service-level objectives, such as service availability, datahandling capacities, and service reliability. Often expressed as percentages, these objectives should state terms for the time frames for these measurements and specify sources for reported performance data. A lawyer may want to ensure clients have the opportunity to conduct third-party performance audits. Acceptable Use Policy. The provider’s acceptable use policy ordinarily constrains only misbehavior, such as using the provider’s resources to engage in criminal activity, support terrorism, or distribute malware or spam. (Several prohibit using their resources to develop weapons of mass destruction.) A lawyer should read these provisions with an eye on the provider’s contractual ability to access the customer’s data to monitor compliance with the acceptable use policy. Data Protection Policy. A data protection policy describes how the provider handles (what it knows to be) sensitive data. These 16
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policies are often expressed as quality objectives referencing third-party certifications, such as a Service Organization Controls report or an ISO 27001 certification. Lawyers should review the provider’s data protection policy. Security Policy. A security policy allocates security responsibilities between provider and customer. A lawyer should advise a client of the client’s security obligations pursuant to the cloud services agreement. If, for example, a provider expressly does not encrypt customer data at rest, the customer bears the attendant responsibilities or risks of the customer’s data remaining unencrypted. The provider may specify its adherence to data security standards or its possession of relevant certifications. Business Continuity Policy. A business continuity policy describes the service’s resiliency features, including system redundancies, data replication techniques, and event-response objectives. Such a policy might describe a number and general location of datacenters at which the customer’s data is replicated, maximum acceptable time within which the provider agrees to restore the customer’s data or service, and the maximum acceptable time during which data might be lost. Termination. A lawyer should review terms involving termination, including triggering events, notifications, opportunities to cure, data off-boarding, data reversibility, and data deletion. For example, a cloud-service agreement should not allow a cloud-based medical records provider from suspending service without adequate notice, essentially holding hostage a health-care provider’s electronic medical records, after unilaterally declaring a substantial price increase.
Conclusion Arkansas has a solid foundation for using and even developing cloud-based businesses. Our educational investments—from the EAST® Initiative to the Arkansas Computer Science Initiative to the Donaghey College of Engineering and Information Technology and more—demonstrate our commitment to computer-science education. And the state is famous for our innovative, internationally successful businesses. Now, cloud-computing technology puts limitless computing resources at the end of any internet connection, however rural. By shepherding Arkansas clients across the cloud-contract landscape, Arkansas lawyers can help reinforce our reputation as the Land of Opportunity. Endnotes: 1. This article only addresses the public cloud. In contrast, the private cloud refers to computer infrastructure provisioned for the exclusive use of a single organization. A private cloud may be owned, managed, and operated by the organization, a third party, or some combination of them, and it may exist on or off premises. National Institute of Standards and Technology (NIST) Special Publication (SP) 800-145. 2. Id. 3. See NIST SP 800-145, 146, and ISO/ IEC 17788:2014. 4. ISO/IEC 17788:2014. 5. Given the big four providers’ highly integrated product offerings, this particular scenario of fragmented services is not realistic. It is only intended to illustrate the potential existence of an undisclosed, complex supply chain.
this guidance is based on rules of professional responsibility and duties of diligence and care that all lawyers share; common features of their opinions (expressed here in broad strokes) include the following: • Learn about the provider, its qualifications, and its ability to fulfill its obligations; • Pay attention to the terms of service, including breach-notice obligations, notice of third-party data-access requests, encryption and replication features, data-destruction-on-termination duties, licensing rights, service limitations, and remedies; • Understand the technologies involved—ask experts, as needed, and stay current on developments; • Consider the sensitivity of the information (some is too sensitive to entrust to others); • Mind legal and regulatory obligations (HIPAA, Graham-Leach-Bliley, etc.); • Consider clients’ instructions; • Exercise meaningful oversight; • Maintain good cyber-hygiene habits throughout a practice; • Periodically review the foregoing. Considering lawyers’ professional responsibilities, cloud-computing services that are appropriate for many businesses may not be appropriate for some aspects of some legal practices. For example, consider Google Drive, a cloud-based office suite with word processing, spreadsheet, and presentation tools. Under the terms of service, a Google Drive user grants Google “a worldwide license to use . . . communicate, publish . . . and distribute” any content that the user uploads, stores, sends, or receives through the service. Microsoft offers analogous cloud-based office suites, but the terms of service for some Microsoft 365 Online plans limit an account’s outgoing emails to 500 recipients per day. If a lawyer used the service to send an announcement to 500 of his clients, he would risk being unable to send any emails for the rest of the day. Once the professional-risk landscape is understood and managed, lawyers can enjoy the range of benefits cloud services generally provide. Files can be accessed by any internet-connected browser or, in many cases, on a smartphone or tablet app. Computing costs shift from
a capital expense to an operating expense. Software licenses, patches, and upgrades, depending on the service, become the responsibility of the provider, reducing a lawyer’s in-house information technology labor and license expenses. The cloud-provider’s experts and robust infrastructures assume responsibility for the physical security and maintenance of servers. The range of cloud services is vast. At one end of the spectrum, some practices use only cloud-based storage for periodic, off-site backups. Those who do should take appropriate steps to ensure their confidential data remain secure. If the service does not provide for encryption of the data both in transit and at rest, lawyers should encrypt it first—a sound practice, even if the provider offers encryption. At the opposite end of the cloud-service spectrum are cloud-based services specifically designed for lawyers. Many of these services originated as stand-alone software products but have evolved into cloud-based services. Some of these serve single needs, such as billing and accounting, including trust accounting, or electronic-signature management. Others are built around supporting specific practice areas, such as bankruptcy, patent, and personal injury, by integrating client-intake, calendaring, accounting, and document management features within the framework of each practice area. In addition to these law-practice-specific tools, there is a growing market of specialists who provide entire cloud-based computing environments for lawyers. These specialists anticipate practices’ reliance on some of the more-popular practicespecific software products and integrate these products into their services, thereby promising that the migration of a practice to a comprehensive cloud environment will be a seamless exercise. These offerings change constantly. A practice considering moving some or all of its computing work to a cloud provider should thoroughly research the marketplace and the suitability of a particular product for a practice, read other users’ online reviews, solicit input from friends and colleagues, take advantage of free-trial demonstration offers, and assess the long-term viability of prospective providers. In every case, however, lawyers should first be mindful of their unique responsibilities.
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A Call to Leadership in the Arkansas Bar Association The petitions, current members of both bodies and district maps are listed on the Association’s website at www.arkbar.com. The Board of Governors and House of Delegates links are located from the “For Attorneys/Governance” tab from the home page. The Young Lawyers link is located on the home page. Questions? Contact the Association at 501-375-4606.
Board of Governors 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. One Governor position is available in the districts listed. All are threeyear terms unless otherwise indicated.
House of Delegates
Secretary & Treasurer 02-BG
Cleburne, Independence, Jackson, Jefferson, Lonoke, White, Woodruff
Bradley, Calhoun, Columbia, Drew, Hempstead, Lafayette, Little River, Miller, Nevada, Ouachita
Baxter, Boone, Carroll, Faulkner, Fulton, Izard, Lawrence, Madison, Marion, Newton, Randolph, Searcy, Sharp, Stone, Van Buren
Clark, Conway, Crawford, Franklin, Howard, Johnson, Logan, Montgomery, Perry, Pike, Polk, Pope, Scott, Sevier, Yell
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. All are three-year terms. A-01
Benton 2 Delegates
Mississippi, Poinsett 1 Delegate
Washington 4 Delegates
Crawford, Franklin, Johnson, Sebastian 2 Delegates
Cleburne, Crittenden, Cross, St. Francis, White, Woodruff 1 Delegate
Faulkner, Van Buren 1 Delegate
Pope 1 Delegate
Pulaski 10 Delegates
Arkansas, Grant, Jefferson, Lee, Lincoln, Phillips 1 Delegates
Clay, Greene, Lawrence, Randolph 1 Delegate
Ashley, Bradley, Calhoun, Chicot, Cleveland, Columbia, Dallas, Desha, Drew, Ouachita, Union 1 Delegate
Independence, Jackson, Sharp 1 Delegate
Craighead 1 Delegate
Clark, Hempstead, Howard, Lafayette, Little River, Montgomery, Nevada, Pike, Sevier 1 Delegate
Article III, Section 7 of the Association’s Constitution provides for an annual election of the positions of a Secretary and a Treasurer. Any member interested in serving in either of these capacities should contact Karen K. Hutchins at 501-375-4606.
American Bar Association Delegate One of the two ABA Delegate positions is open for election for a two-year term. The Delegate from this Association to the House of Delegates of the American Bar Association shall be nominated by petition signed by at least 75 Association members with at least 25 voting members from each of the three state bar districts. The nominating petitions must be filed with the Secretary at the Arkansas Bar Association, 2224 Cottondale Lane, Little Rock, AR 72202, no later than March 31, 2017.
Young Lawyers Section Nominating Petitions are due March 31, 2018 for: Chair-Elect elected from District B (one-year term) Secretary/Treasurer elected from any District (one-year term) Representative District A
Election Process for Governors and Delegates For both governors & delegates, 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, 2018.
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(three-year term) Representative District B (three-year term) Representative District C (three-year term)
GILL RAGON OWEN, P.A. WELCOMES OUR NEW SHAREHOLDER
ROBERT B. BEACH
AND OUR NEW ASSOCIATE
Robert B. Beach
425 West Capitol Avenue, Suite 3800 | Little Rock, Arkansas 72201 | 501.376.3800 | gill-law.com
Vol. 53 No. 1/Winter 2018 The Arkansas Lawyer
Requiring the Uncompensated Lawyer to Represent Civil Litigants Is Unconstitutional: The Emperor Has No Clothes
By Scott M. Strauss* and Alexander W Chak
“A lawyer’s time and advice are his stock in trade.”1 Yet, the Courts take the lawyer’s time by requiring representation of indigent litigants without compensation.2 How, or better, why, do the courts, the protectors of rights and liberties, demand involuntary servitude from lawyers? I do not contend legal services for the indigent isn’t a problem; rather, the issue is whether the problem should be solved by compelling uncompensated service from lawyers. Background The EEOC and civil rights acts allow a federal judge to “request” or “appoint” an attorney to represent an indigent party in civil proceedings.3 This despite the fact there is no constitutional right to counsel in civil matters.4 In a critical choice of wording, and pursuant to 28 U.S.C. § 1915(e)(1) (applying to prisoner civil rights litigation), “[t]he court may request an attorney to represent any [prisoner] unable to afford counsel.”5 The Federal Courts of Arkansas rely on this statute in Local Rule 83.7.6 However, the rule states “[t]hese appointments shall be mandatory.”7 This, despite the statutory use of “request” rather than “appoint.” Scott Strauss has practiced 26 years and is a past winner of the Arkansas Bar Association Lawyer Community Legacy Award For Excellence In Volunteer Public Service.
Alexander W Chak is a 3L student, 2018 candidate for JD at the University of Arkansas, Fayetteville, and also a 2018 candidate for LL.M. in Food and Agriculture. 20
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RULE 83.7 Appointment of Counsel In those civil cases in which the Court deems it necessary to appoint counsel to represent a party proceeding in forma pauperis (see 28 U.S.C. §1915), such appointment shall be accomplished by random selection from a list of all actively practicing private attorneys enrolled in the District in which the case is pending. . . . These appointments shall be mandatory. The United States Supreme Court in Mallard v. United States District Court ruled that “request” as used in 28 U.S.C. § 1915 meant just that, “request,” clearly stating the District Court had no power of mandatory appointment arising from the statute.8 The Court’s ruling was limited to review of the statute without consideration of the Court’s “inherent authority.”9
Judge Franklin Waters, in Colbert v. Rickmon, following Mallard, stated “there is no statutory authorization for this court to require an unwilling attorney to assist the plaintiff in the prosecution of his civil rights claim.”10 In light of the Courts’ holdings in Mallard and Colbert, it appears the language of Rule 83.7 stating the court can make “mandatory” appointments by virtue of 28 U.S.C. § 1915 overstates the courts’ authority. Employment Discrimination The legislative intent and primary purpose of 42 U.S.C. § 2000e is to prohibit inequality in employment opportunity on the basis of race, religion, sex, or national origin.11 “[A]s the court may deem just, the court may appoint an attorney for such complainant.”12 The statute doesn’t address compensation for counsel. Inherent Authority/Takings Clause The issue of whether Federal Courts have inherent authority to appoint an uncompensated attorney is subject to multiple interpretations.13 Judge Waters, in Colbert v. Rickmon, addressed the issue of the court’s “inherent authority” to appoint counsel,14 noting the belief that courts have the inherent power to appoint lawyers is far from universal.15 While agreeing that assisting the indigent is a laudable goal, the court noted “that goal cannot be accomplished by burdening one particular class of persons [ . . . when] no other profession is similarly conscripted to aid the poor.”16 Judge Waters concluded private lawyers do not exist merely to
solve the administrative problems of the federal judiciary;17 even if the courts have the inherent authority to appoint counsel, that authority is still subject to the Fifth Amendment Takings Clause.18 The Fifth Amendment to the United States Constitution states in pertinent part: “nor shall private property be taken for public use, without just compensation.” The “Takings Clause” “requires the payment of compensation whenever the government acquires private property for a public purpose.”19 Yet, the Courts “take” legal services from lawyers in civil litigation through mandatory appointments. The Supreme Court, in Kelo v. City of New London, ruled the government may not take private property to benefit another particular interest or party: [The Government] would no doubt be forbidden from taking [one’s property] for the purpose of conferring a private benefit on a particular private party. See Midkiff, 467 U.S., at 245, 81 L. Ed. 2d 186, 104 S. Ct. 2321 (“A purely private taking could not withstand the scrutiny of the public use requirement; it would serve no legitimate purpose of government and would thus be void”); Missouri Pacific R. Co. v. Nebraska, 164 U.S. 403, 41 L. Ed. 489, 17 S. Ct. 130 (1896). Nor would the City be allowed to take property under the mere pretext of a public purpose, when its actual purpose was to bestow a private benefit.20
If judges appointed counsel with pay pursuant to § 2000e-5(f )(1) (Title VII employment cases)21 (and they do not), this taking of a lawyer’s time would still be unconstitutional because the taking is for private use, to make the individual plaintiff “whole.” If the Court determined the appointment is for a “public use,” then consistent with the “takings clause” the attorney must be compensated. Some Courts hold that taking a lawyer’s time needn’t be compensated because it is a historical duty and condition of being a lawyer, and there is compensation in the form of “reciprocity of advantage”22 for the privilege of practicing law. One wonders how one receives economic advantage by being forced to work for free, when at the same time other licensed professionals are not similarly burdened? Singling out lawyers to render services without compensation violates the precepts of Due Process and Equal Protection. Judge Moody’s and Mr. Yablon’s article references cases in which courts identify the need of both the judiciary and indigent litigants for appointed counsel to make the system function concerning those indigent litigants,23 suggesting this need is the basis of the court’s inherent authority to appoint uncompensated counsel. Are we really saying one individual’s needs authorize uncompensated takings from another individual? To argue the Courts have “inherent authority” to require uncompensated representation suggests the Courts are not subject to constitutional restraint. As noted in Dietz v. Bouldin,“The exercise of an inherent power
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must be a ‘reasonable response to the problems and needs’ confronting the court’s fair administration of justice and cannot be contrary to any express grant of, or limitation on, the district court’s power contained in a rule or statute.”24 In other words, “inherent authority” does not trump statutory or constitutional law. Due Process And Equal Protection The United States Supreme Court, in Schlesinger v. Ballard, held “the Fifth Amendment’s Due Process Clause prohibits the Federal Government from engaging in discrimination that is ‘so unjustifiable as to be violative of due process.’”25 The Fifth Amendment states in pertinent part that “[n]o person shall . . . be deprived of life, liberty, or property, without due process of law.”26 Under the rational basis standard of review, a federal statute that treats groups of people (that is, lawyers and non lawyers) differently passes review only if the disparate treatment is rationally related to the legislative purpose of the societal concern.27 Section 2000e-5(f )(1) enables courts to appoint only lawyers—not plumbers, not electricians and not doctors.28 Section 2000e-5(f )(1) was enacted because of the societal desire to provide legal services to the indigent.29 Isn’t this the equivalent of requiring only physicians to bear the burden of indigent healthcare? The cost of providing counsel to indigent civil litigants can easily be shared with society as a whole through the mechanism of taxation just as it is with health and housing issues. There is no rational basis for requiring only lawyers to bear this cost. Judge Waters agreed when he stated: It cannot be disputed that the assistance of the poor is a legitimate governmental function. But, this goal cannot be accomplished by burdening one particular class of persons in an effort to solve what is clearly a governmental, societal, and nationwide problem. No other profession is similarly conscripted to aid the poor.30 Judge Waters continued, quoting the Court’s decision in Cunningham v. Superior Court: It is unfair to put on any working group the burden of providing for 22
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the needy out of its stock in trade. No one would suggest that the individual grocer or builder should take the responsibility of providing the food and shelter needed by the poor. The same conclusion applies to the lawyer. The lawyer’s stock in trade is intangible– his time fortified by his intellectual and personal qualities, and burdened by his office expenses. To take his stock in trade is like stripping the shelves of the grocer or taking over a subdivision of the builder.31 Involuntary Servitude The case law involving appointment of counsel invariably includes Thirteenth Amendment involuntary servitude language. Consequently, a thorough review must include this issue as well. The Thirteenth Amendment of the United States Constitution provides in pertinent part: “[n]either slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States . . . .” I do not equate mandatory legal service with the abomination of slavery. I do contend, as do many courts and legal scholars, that conscripting the uncompensated lawyer constitutes involuntary servitude. To those who would say that such appointments are not involuntary servitude but merely the cost of practicing law, perhaps the best response is found in the Court’s decision in State ex rel. Scott v. Roper: While we encourage members of the bar to explore all possible avenues for assuring equal access to justice, we do not believe that courts have the inherent power in civil cases to provide the alternative of compelling representation without compensation. Since the colonial period, a lawyer’s services have been recognized as a protectable property interest. It was noted in 1812 that “[i]ndustry and faculties are most valuable property in a republic.” Byrne v. Stewart, supra, at 468. Our state constitution expressly protects an individual’s services by providing “that all persons have a natural right to . . . the enjoyment of the gains of their own industry.” Mo. Const. art. I § 2. We will not permit the State to deprive a citizen of this constitutional right as
a condition to granting a license or privilege. While nineteenth and early twentieth century cases may have suggested otherwise, a growing body of modern law persuades us that federally guaranteed constitutional rights should be accorded similar protection. . . . The courts of this state have no inherent power to appoint or compel attorneys to serve in civil actions without compensation. Providing for such representation and the funding thereof is a matter for legislative action.32 Likewise, in Colbert v. Rickmon, Judge Waters stated: Notwithstanding the popular belief in the “ancient traditions” from whence it is said the obligation to serve without pay originated, several well-respected courts have looked to the modern framework of government in their analyses, holding that the appointment of unpaid legal labor is impermissible under the Constitution of the United States, at least in civil litigation. [internal citations omitted] These courts find multifarious problems with the concept of forced attorney labor, including violations of due process “takings” provisions, equal protection, and the Thirteenth Amendment prohibition of “involuntary servitude”. . . . As to the “implied consent” theory, the court in Menin v. Menin, 79 Misc. 2d 285, 359 N.Y.S.2d 721 (S. Ct. 1974), aff ’d, 48 A.D.2d 904, 372 N.Y.S.2d 985 (1975), found it “irrational” to condition the practice of law upon conditions not reasonably related to an attorney’s fitness to practice.33 There is no constitutional “involuntary servitude” exception for lawyers. Conclusion There is a virtually unlimited list of federal programs to address the needs of the indigent.34 There should be no difference between the perceived need for counsel in civil matters and the many other problems faced by the indigent. Because society takes the position the indigent should receive
housing, food, and healthcare, Congress can and does levy taxes to address these issues. If society deems it necessary to provide counsel to indigent civil litigants, that need can and should be addressed in the same manner. I believe everyone should volunteer to help those in need as a matter of personal choice. But, the intentional violation of a lawyer’s rights cannot be the answer to the violation of an indigent litigant’s rights. To quote that great scholar, Joan Hibbs,35 “two wrongs don’t make a right.” Endnotes: * I believe the process of mandatory appointments has become so entrenched it simply does not occur to the courts or lawyers to consider the simple question of “is this right?” That is all I am doing. Asking the question. This article is not an attack on the federal judiciary, and I trust it will not be perceived as such. My summer law clerk, Alex Chak, did most of the research and some of the writing on this article. However, the opinions are mine alone, and not the opinions or positions taken by Mr. Chak or my partners. I am a believer in public service. I say the following only to ward off those who would suggest otherwise. I am extremely active in volunteer efforts away from the legal profession and was awarded the Arkansas Bar Association’s Lawyer Community Legacy Award For Excellence In Volunteer Public Service. 1. Abraham Lincoln. 2. 28 U.S.C. § 1915(e)(1); and 42 U.S.C. § 2000e-5(f )(1). 3. Id. 4. Glick v. Henderson, 855 F.2d 536, 541 (8th Cir. 1988); see also Ulmer v. Chancellor, 691 F.2d 209 (5th Cir. 1982). 5. 28 U.S.C. § 1915(e)(1) (emphasis added). 6. See Local Rules of the United States District Court for the Eastern and Western Districts of Arkansas, Local Rule 83.7, Appointment of Counsel (current as of July 2017), http://www.are.uscourts.gov/sites/ ared/files/local_rules/83.7.pdf. 7. Id. 8. 490 U.S. 296 (1989) (superseded on other grounds). 9. See id. 10. See, generally, Colbert v. Rickmon, 747 F. Supp. 518 (W.D. Ark. 1990). 11. See Franks v. Bowman Transp. Co., 424 U.S. 747 (1976). 12. Id.
13. David L. Shapiro, The Enigma of the Lawyer’s Duty to Serve, 55 N.Y.U. L. Rev. 735, 753 (1980) (concluding that to “justify coerced, uncompensated legal services on the basis of a firm tradition in England and the United States is to read into that tradition a story that is not there”); Bruce Andrew Green, Court Appointment of Attorneys in Civil Cases: The Constitutionality of Uncompensated Legal Assistance, 81 Colum. L. Rev. 366, 368–70 (March 1981); see also Judy E. Zelin, Court appointment of attorney to represent, without compensation, indigent in civil action, 52 A.L.R.4th 1063 (1987). See Mallard v. United States Dist. Court for Southern Dist., 490 U.S. 296, 310 (1989) (superseded on other grounds) (declining to rule on the issue of whether the federal courts possess inherent authority to require lawyers to serve; dissenting and concurring opinion stating the federal courts do have the inherent authority to require lawyers to serve). 14. See, generally, Colbert v. Rickmon, 747 F. Supp. 518 (W.D. Ark. 1990). 15. Id. at 521. 16. Id. at 525. 17. Id. at 526. 18. Id. at 527. 19. Murr v. Wisconsin, 137 S. Ct. 1933, 1942, 198 L. Ed. 2d 497, 508 (2017) (quoting Tahoe-Sierra Preservation Counsel, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302, 321 (2002)). 20. Kelo v. City of New London, 545 U.S. 469, 477–78 (2005) (superseded on other grounds). 21. See 42 U.S.C. § 2000e-5(k). 22. See generally Penn. Cent. Transp. Co. v. New York City, 438 U.S. 104 (1978) (holding that extensive zoning regulations that amounted to takings was allowed because it commonly benefited the municipality as a whole). This point is not to be confused with the baseless argument that it is a “deeply rooted” tradition and condition of the legal practice. See Cunningham v. Superior Court, 177 Cal. App. 3d 336, 344 (Ca. Ct. App. 1986); Shapiro, Green, and Zelin, supra, note 13. 23. And, I agree. There is an extreme need for counsel in these matters. However, I disagree with the suggestion that compelling unwilling, unpaid counsel is the answer. There is something wrong with this system. For example, government lawyers are immune from these appointments. Is the time of a federal prosecutor more important than
that of a private practice lawyer? Further, anecdotal evidence suggests a geographical bias in the assignment of these cases. For example, friends in small towns in the southern part of the state with more than 30 years licensure in both the Eastern and Western Districts have yet to receive their first appointment. This is simply not the case for those of us within a three block radius of the Richard Sheppard Arnold United States Courthouse. 24. Dietz v. Bouldin, 136 S. Ct. 1885, 195 L. Ed. 2d 161 (2016) (quoting Degen v. United States, 517 U.S. 820, 823–824, 116 S. Ct. 1777, 135 L. Ed. 2d 102 (2009)). 25. See Schlesinger v. Ballard, 419 U.S. 498, 500 (1975) (quoting Bolling v. Sharpe, 347 U.S. 497, 499 (1954)). Also, this is not a Fourteenth Amendment issue because this is a Federal Government issue and not a State Government issue. Id. 26. U.S. Const. amend. V. 27. See Franks, supra, note 11. 28. 42 U.S.C. § 2000e-5(f )(1). 29. See Franks, supra, note 11. 30. Colbert, supra, note 14 at 525. 31. Id. at 525-26 (quoting Cunningham v. Superior Court, 177 Cal. App. 3d 336, 348-49 (Ct. App. 1986) (internal citations omitted)). 32. State ex rel. Scott v. Roper, 688 S.W.2d 757, 768–69 (Mo. 1985). 33. Colbert v. Rickmon, 747 F. Supp. 518, 522 (W.D. Ark. 1990). 34. Alcohol, Drug Abuse, and Mental Health Services Block Grant; Child and Adult Care Food Program; Community Development Block Grant; Conservation Reserve Program; Federal Pell Grant; Supplemental Nutrition Assistance Program; Head Start; Local Law Enforcement Block Grant; Nutrition Assistance for Puerto Rico; Private Landowner Assistance Program; Section 8 Housing Choice Voucher; and Temporary Assistance for Needy Families. Those are just the list of grants. The U.S. federal welfare programs include: Medicaid, Medicare, EITC, SSI, ACTC, SNAP, and various other housing, social, employment and training services. 35. Doris Joan Hibbs Downey 1937-2014.
Vol. 53 No. 1/Winter 2018 The Arkansas Lawyer
Indigents in § 1983 Civil Rights Claims Deserve Appointed Legal Representation
By James M. Moody and Mark P. Yablon
he practice of appointing counsel to represent indigents in civil cases puts into tension the reasonable expectation of attorneys to be compensated for their services with the right of the courts to exercise their inherent authority to take all necessary steps to ensure the efficient administration of justice. In 1987, the District Courts for the Eastern and Western Districts of Arkansas adopted Rule 83.7, which provided a mechanism for appointment of counsel for indigent plaintiffs in certain civil actions. The rule was adopted based on the historical experience of the courts that pro se litigants unintentionally delay proceedings and frustrate courts and opposing counsel. The issue in this debate focuses on the last sentence of the rule which provides: “These appointments shall be mandatory.” This article will explain how 1) U.S. District Courts have authority to make involuntary civil appointments and 2) involuntary civil appointments do not violate the Fifth Amendment takings clause or the Thirteenth Amendment prohibition against involuntary servitude.
James M. Moody, formerly United States District Judge, currently is Of Counsel at Wright Lindsey Jennings.
Mark P. Yablon will graduate in May from William H. Bowen School of Law. He will begin his litigation and business law practice in August with Pittenger, Nuspl & Crumley in Texas. 24
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I. Neither the U.S. Constitution, U.S. Code, nor other law invalidates Local Rule 83.7; rather, some appellate courts require U.S. District Courts appoint counsel for indigent civil litigants, and the U.S. Supreme Court has recognized courts’ inherent authority. Scott Strauss’ article seemingly starts with the proposition that courts may not go beyond the provisions of 28 U.S.C. § 1915(e)(1), which permits a court to “request an attorney to represent any prisoner unable to afford counsel in a civil rights action.” This statutory language was interpreted by the United States Supreme Court in Mallard v. United States District Court for Southern District of Iowa that “request” meant “request” and not “appoint.”1 Strauss argues this ruling clearly establishes that courts have no statutory authority to make compulsive appointments leaving only the courts’ inherent authority to do so, which Strauss challenges. Notwithstanding possible limitations of § 1915, courts have other authority to make civil appointments.
A. Courts may legally exercise their inherent authority to make mandatory appointments in civil cases consistent with Local Rule 83.7 and the practice that has prevailed since the rule was enacted. The overwhelming number of appointments under this local rule are in 42 U.S.C. § 1983 prisoner civil rights cases. Most appointments in § 1983 cases are made by Magistrate Judges. Before appointing counsel, the Magistrate Judge will make a thorough examination of the prisoner’s claim to ensure there is a submissible issue of fact for a jury to decide. Attorneys are selected at random from those admitted to practice in federal court. Attorneys are then notified of the appointment and afforded time to petition the court to be relieved usually on grounds of sufficient pro bono hours or a lack of enough experience in civil rights litigation to be able to competently represent a prisoner making such a claim. When the Magistrate Judge decides not to relieve the appointed counsel, it is only after he carefully balances the following interests: 1) the court’s need to impartially administer justice in a fair and efficient manner for all concerned and to ensure society has faith in the outcomes of civil proceedings, 2) the indigent prisoner’s right to have essential assistance of counsel to fairly present his case, and 3) the attorney’s reasonable expectation to be protected from an unconstitutional taking of his time and talents without just compensation. The only readily available statistics on the number of appointments in § 1983 cases from March 1, 2016, to October 23, 2017, was provided by James McCormack, Clerk for the U.S. District Court for the Eastern District of Arkansas. During this time, the courts appointed 38 attorneys in 1,271 pro se prisoner cases. It is believed very few of those 38 attorneys were required to serve because of the policy of generally excusing attorneys who petition the Court with a legitimate reason for not serving. These numbers reflect the effort made to dispose of as many claims without a viable chance of recovery as possible before an attorney is appointed to cases deemed worthy of trial. Mallard has never been overturned and still holds district courts have no power to make mandatory appointments under § 1915(e).2 This opinion, however, specifically stated it was not addressing whether district courts have inherent power to make such appointments because nobody raised the argument.3 Strauss acknowledges as much in his article. The U.S. Supreme Court has long recog-
nized that U.S. District Courts have the inherent authority to conduct business as they reasonably see fit without undue interference or dominance from other branches of government per Young v. United States ex rel. Vuitton et Fils S.A.4 U.S. District Courts in other jurisdictions have utilized inherent authority to make mandatory appointments in civil rights cases. Various federal appellate courts have approved this practice and have even reversed or remanded district courts for abuse of discretion in not making these appointments. Indigent persons in custody have had a Constitutional right to appointed counsel when charged with a crime since Gideon v. Wainwright was decided in 1963.5 Prisoners with a viable claim for a violation of their constitutional rights, such as when a guard undeniably and unnecessarily violently injures a prisoner or fails to provide required food or medical care, should likewise be entitled to appointed counsel. A prisoner in need of counsel has limited options to find legal representation. Most prisoners are indigent and have almost no means of contacting attorneys, which leaves only the court to provide counsel to most prisoners. Prisoners making § 1983 claims who have successfully passed the screening process have a potential property right in the form of compensation for a monetary loss or injury.6 These claims are always vigorously contested by seasoned defense counsel. If the prisoner
is forced to present his cause pro se without the benefit of an attorney to assist him, his chances of success are severely diminished. In this situation, to level the playing field, the court must resort to its inherent authority to appoint counsel for prisoners who cannot reasonably afford private counsel. Strauss principally relies on Judge Franklin Waters’ opinion in Colbert v. Rickmon in arguing that U.S. District Courts do not have inherent authority to make mandatory appointments in civil cases.7 Franklin Waters was an iconic judge whose opinion deserves great weight, but on this issue we must respectfully disagree with his conclusions. Five years after Judge Waters filed his opinion in Colbert, another capable jurist in Nebraska reached a different conclusion in Bothwell v. Republic Tobacco Company.8 Magistrate Judge Piester wrote: “After conducting an extensive review of authority and commentary addressing this issue, I am convinced that a federal district court does possess the inherent power to compel an unwilling attorney to accept a civil appointment.”9 The rationale in Bothwell for exerting inherent authority to force unwilling counsel to represent an indigent in a civil case is as follows: [T]his court’s inherent power to compel representation of the indigent exists for two primary purposes: (1) to
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ensure a “fair and just” adjudicative process in individual cases; and (2) to maintain the integrity and viability of the judiciary and of the entire civil justice system. These two purposes mirror the dual functions that lawyers serve in the civil justice system. First, they act as advocates in individual cases working to peacefully resolve civil disputes between citizens. Second, by their ready availability to act in that capacity, they preserve the credibility of the courts as a legitimate arm of the civil justice system.10 Bothwell brings it together to say “courts possess the inherent power to bring to their assistance those ‘instruments’ necessary to ensure a ‘fair and just’ adjudicative process in individual cases.”11 Given the adversarial system, the court reasoned that “lawyers are a necessary component in ensuring such a ‘fair and just’ process.”12 Indigent litigants do not have “adequate access to legal assistance,” especially those in prison despite “the private marketplace [and] public or charitable efforts [to] provide indigent litigants with” representation.13 “[S]uch failure threatens the reliability of the results of the adversarial process.”14 Therefore, the court concluded “when indigency is the principal reason for disparate access to the civil justice system in an individual case, a federal court does possess the inherent authority to bring about a fair and just adjudicative process by conscripting an unwilling lawyer to represent the indigent party.”15 Arkansas’ approach to mandatory civil appointments through Local Rule 83.7 is vindicated in courts nationwide. The Seventh Circuit is a leader in mandating civil appointments. Dewitt v. Corizon, Inc. recognizes the difficulty appointed attorneys have and judges face in finding willing attorneys to represent indigent litigants, and that some litigants, such as DeWitt, are prejudiced when a court fails to appoint counsel.16 The Court’s opinion in Brown v. McGarr established that Congress delegated rule-making authority to the federal courts per the Judiciary Act of 1789, and 28 U.S.C. § 1654 codified this authority.17 Also, 28 U.S.C. § 2071 empowers the “‘Supreme Court and all courts established by Act of Congress [to] prescribe rules for the conduct of their business.’”18 The U.S. Supreme Court was authorized to write Federal Rules of Civil Procedure Rule 83 that provides “a district court . . . may adopt and amend rules governing its practice” not inconsistent with these rules.19 Thus, Rule 83 26
The Arkansas Lawyer
authorizes the Arkansas federal courts and the Northern District of Illinois, among others, to enact local rules that authorize federal courts to make mandatory civil appointments.20 Below are two more examples of many opinions that hold district courts not only have inherent authority to exercise judicial functions, but require appointed counsel when necessary to ensure a smooth operation of courts carrying out civil justice. The Third Circuit Court of Appeals in United States v. Bertoli declined to follow Colbert, stating, “[W]e are not persuaded by the court’s reasoning in Colbert that a district court has no power to require standby counsel for the purpose of advancing its own interest in the fair, speedy and efficient disposition of cases on its criminal docket.”21 Judge Jennifer Elrod of the Fifth Circuit Court of Appeals ruled in 2015 in Naranjo v. Thompson that U.S. District Courts have inherent authority, notwithstanding § 1915, to appoint attorneys for indigent litigants without pay.22 B. Attorneys receive due process in challenging involuntary civil appointments, but that cannot be said for most indigent civil litigants. Due process clashes between attorney and civil litigants create understandable tension. Strauss claims involuntary civil appointments violate due process. Under Local Rule 83.7, however, an appointed attorney may request dismissal on various grounds, including representing an indigent in court or providing 20 hours of pro bono legal work the prior year. Following the Mathews v. Eldridge due process analysis, courts must evaluate three factors: (1) litigant’s private interests; (2) government’s interest; and (3) risk that procedures used will lead to erroneous decisions.23 Applied here, the freedom to work for pay is Strauss’ private interest, which is nominally impacted. Efficient adjudication of disputes and keeping the judicial system’s public trust to avoid vigilante justice are the government’s interests, which far outweigh an attorney’s inconvenience. An attorney forced to work one case for free per half century is the risk that Rule 83.7 may cause error.24 Such potential involuntary appointment is hardly equivalent to “stripping the shelves of the grocer or taking over a subdivision of the builder” as Strauss quotes from Colbert in his accompanying article challenging Local Rule 83.7.25 Plus an appointed attorney has procedures to object to the appointments. So there is no disparate impact. Consider due process for indigent § 1983
civil rights litigants. Addressing physical violence from guards, medical care deprivation, and solitary confinement without a proper hearing are compelling private interests of prisoners. Providing prisoners free counsel poses a risk that more prisoners may clog up courts while wasting unpaid attorneys’ time. But the opposite is likely. Most attorneys and courts recognize attorneys on both sides provide significantly more judicial economy and fairness to everyone than when only one party is represented. So not appointing counsel in these cases where warranted is much more likely to lead to erroneous decisions. In support of the above argument, the Second Circuit Court of Appeals reversed the trial court and held in 2010, “appointment of counsel is appropriate with respect to [pro se inmate] Johnston’s claim that he was placed in solitary confinement, with excessive force, as a pretrial detainee.”26 This implicated the prisoner’s procedural due process rights, which had merit and justified appointment of counsel.27 C. Regulating lawyers regarding civil appointments so judges may conduct the courts’ business and protect society from self-help is rationally related. Attorneys should be compensated for their work, but they also are members of the only licensed, private profession inextricably intertwined with government to carry out its business. Plumbers, doctors, and others neither share a similar bond nor have the same professional monopoly. These professionals have a licensing scheme, but attorneys are not similarly situated because of the attorneys’ symbiotic relationship with the judicial system. Brown quoted a 19th century Supreme Court case to illuminate the need for a court to regulate its attorneys: The authority of the court over its attorneys and counselors is of the highest importance. They constitute a profession essential to society. Their aid is required not merely to represent suitors before the courts, but in the more difficult transactions in private life. The highest interests are placed in their hands, and confided to their management. The confidence which they receive and the responsibilities which they are obliged to assume demand not only ability of a high order, but the strictest integrity. The authority which the courts hold over them, and the qualifications required for their admission, are intended to secure those qualities.28
Attorneys, as officers of the court, have an ethical and professional duty to the efficient operation of court systems under rules of professional conduct. Ethical restraints can cost an attorney income and restrict his liberty to freely contract, but the legal profession long ago accepted these rules to protect the public. II. Strauss argues unpaid, involuntary civil appointments violate the Fifth Amendment takings clause and the Thirteenth Amendment prohibition against involuntary servitude, but appellate courts consistently hold otherwise. A “vast majority of the courts” have denied claims against uncompensated appointments according to the Ninth Circuit Court of Appeals.29 Representing “indigents under court order, without a fee, is a condition under which lawyers are licensed to practice as officers of the court, and” only a statute may modify an attorney’s “obligation . . . to serve without compensation.”30 One who desires “to practice law may justly be deemed to be aware of the traditions of the profession . . . and to know . . . a lawyer is an officer of the court obligated to represent indigents for little or no compensation upon court order.”31 Thus, the Ninth Circuit Court held “the lawyer has consented to, and assumed, this obligation and when he is called upon to fulfill it, he cannot contend that it is a ‘taking of his services.’”32 In Family Division Trial Lawyers of Superior Court-D.C., Inc. v. Moultrie, the D.C. Circuit Court of Appeals explained that appointing lawyers for indigents “is not forced labor” because an attorney is not forced to work in a particular practice area or court.33 “Inability to avoid continued service is the essential ingredient of involuntary servitude.”34 The D.C. Circuit Court held, “Since the superior court appointment system lacks this ingredient, we agree with the district court that the appellants’ complaint fails to raise a genuine thirteenth amendment issue [sic].”35 The lower court had ruled “‘that compelled public service is not, in and of itself, involuntary servitude, even when imposed on a limited segment of the population.’”36 Mandating attorneys to take pro bono cases is not involuntary servitude or a taking.37 Conclusion The courts’ inherent authority and Federal Rules of Civil Procedure Rule 83 authorize Local Rule 83.7. The local rule allows Arkansas U.S. District Courts to make involuntary civil appointments for indigents in § 1983 civil rights prisoner cases. The risk of inappropri-
ately appointing an attorney is negligible given the few civil appointments—38 in the past 18 months—among the thousands of attorneys admitted to Arkansas federal courts. The risk, however, of not appointing counsel is significantly more detrimental to the courts, jurists, litigants, opposing counsel, and society. Indigent § 1983 claimants who are compelled to represent themselves in court stand little chance of prevailing despite the best efforts of U.S. District Judges to ensure a fair trial. All § 1983 claims are carefully screened by the Magistrate Judges and their clerks to ensure that only those claims that demonstrate a legitimate issue for trial prompt the appointment of counsel. Local Rule 83.7 also allows attorneys to ask to be excused, which leaves a smaller percentage of mandatory appointments. The process of mandating an appointment is not arbitrary and only made after balancing competing interests with the ultimate goal of ensuring that the plaintiff gets a fair trial and preserving the integrity of the judicial system. In a few cases this can only be accomplished by mandating the appointment of counsel. This undeniably involves some imposition on the attorney appointed but does not rise to the level of a Constitutional violation. Endnotes: 1. Mallard v. United States Dist. Court for S. Dist. of Iowa, 490 U.S. 296, 307 (1989). 2. Id. at 300–02. 3. Id. at 310. 4. Young v. United States ex rel. Vuitton Et Fils S. A., 481 U.S. 787, 796–98 (1987). 5. Gideon v. Wainwright, 372 U.S. 335 (1963). 6. 42 U.S.C. § 1983. 7. Colbert v. Rickmon, 747 F. Supp. 518 (W.D. Ark. 1990). 8. Bothwell v. Republic Tobacco Co., 912 F. Supp. 1221 (D. Neb. 1995). 9. Id. at 1225. 10. Id. at 1227. 11. Id. at 1229. 12. Id. 13. Id. 14. Id. 15. Id. 16. Dewitt v. Corizon, Inc., 760 F.3d 654, 657–60 (7th Cir. 2014). 17. Brown v. McGarr, 774 F.2d 777, 781 (7th Cir. 1985), citing Theard v. United States, 354 U.S. 278, 281 (1957). 18. Id. at 781–82, quoting 28 U.S.C. § 2071. 19. Fed. R. Civ. P. 83; see also Brown, 774 F.2d at 782 (7th Cir. 1985).
20. See De Rosmo v. Feeney, 38 F. Supp. 834 (E.D.N.Y. 1941) (“District court may adopt local rule providing for application of state practice not inconsistent with these rules.”); Bussius v. Bussius, 38 F. Supp. 871 (D.D.C. 1941) (a local rule is acceptable because it was not inconsistent with Fed. R. Civ. P.); and Petrol Shipping Corp. v. Kingdom of Greece, 360 F.2d 103 (2d Cir. 1966) (district courts may regulate their practice in any manner not inconsistent with the Federal Rules of Civil Procedure). 21. United States v. Bertoli, 994 F.2d 1002, 1017 (3d Cir. 1993). 22. Naranjo v. Thompson, 809 F.3d 793, 801–02 (5th Cir. 2015). 23. Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18, 20 (1981), citing Mathews v. Eldridge, 424 U.S. 319 (1976). 24. There are 2,205 attorneys admitted to the Eastern District eligible for involuntary civil appointment. Of 38 civil appointments the past 18 months, including attorneys who volunteered for the federal trial experience, the odds of appointing an attorney are one per 50 years. 25. Colbert, 747 F. Supp. at 525–26, quoting Cunningham v. Superior Court, 177 Cal. App. 3d 336, 349 (1986) (internal citations omitted). 26. Johnston v. Maha, 606 F.3d 39, 40 (2d Cir. 2010). 27. Id. at 40–41. 28. Brown, 774 F.2d at 782, quoting Randall v. Brigham, 74 U.S. (7 Wall.) 523, 540 (1869). 29. United States v. Dillon, 346 F.2d 633, 635 (9th Cir. 1965). 30. Id. 31. Id. 32. Id.; cf. Kunhardt & Company, Inc. v. United States, 266 U.S. 537, 45 (1925). 33. Family Div. Trial Lawyers of Superior Court-D.C., Inc. v. Moultrie, 725 F.2d 695, 705 (D.C. Cir. 1984). 34. Id.; see Flood v. Kuhn, 443 F.2d 264 (2d Cir. 1971), aff’g 316 F. Supp. 271 (S.D.N.Y. 1970), aff’d on other grounds, 407 U.S. 258 (1972); Wicks v. Southern Pacific Co., 231 F.2d 130, 138 (9th Cir. 1956), cert. denied, 351 U.S. 946 (1956). 35. Family Div. Trial Lawyers of Superior Court-D.C., Inc., 725 F.2d at 705. 36. Id. at 700. 37. Id.
Vol. 53 No. 1/Winter 2018 The Arkansas Lawyer
Than you to the following ArkBar Volunteer CLE Speakers & Planners who made our 2017 CLE seminars possible. Their support for ArkBar’s CLE program is greatly appreciated. Our diverse topics and experienced speakers provide valuable content to the legal community.
Reid Adkins Allison C. Albritton Mark H. Allison Laura I. Appleman Joyce Bradley Babin J. Grant Ballard Robert A. Ballinger Jill Barham Judge Ben T. Barry J. Travis Baxter Robert Lamb Beard Jr. Daniel Joseph Beck Theresa Beiner Jennifer L. Bell Ryan Benefield Rep. Camille Williams Bennett Margaret Hobbs Benson Avery Bingham Misty W. Borkowski Lara Elizabeth Bowles James David Bradbury Furonda L. Brasfield Rafael Bravo Howard W. Brill Rep. Mary Lile Broadaway Evelyn E. Brooks Justice J. Brooks Judge Earnest E. Brown Jr. Judge Waymond M. Brown Sydney Lynn Brown Charles Buchan LeAnne P. Burch Christopher Wesley Burks Paul Byrd Patty A. Cardin Thomas M. Carpenter Joshua T. Carson Charles Jason Carter Erin E. Cassinelli Judge David Mayo Clark Brian M. Clary John C. Collins II Lauren Katharine Collins Judge Cathleen V. Compton Jon B. Comstock Barry E. Coplin Billy Corriher David A. Couch Grant M. Cox Lisa Cox John M. Cunningham Judge Don N. Curdie Thomas A. Daily Rep. Carol C. Dalby Jason Daniel JaNan Arnold Davis Amanda W. Denton Robert L. Depper III Thomas J. Diaz Dean John M.A. DiPippa Pam Dodson Richard C. Downing Jeff Davis Duty Jr. Alan B. Epstein
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Jamie Leigh Ewing Frances S. Fendler James Fisher Jennifer Williams Flinn Judge John N. Fogleman Tommy Foltz William Edward Foster Jamie Fugitt Alice Fulk David Allan Gates Anthony Gaughan Jimmy D. Gazaway Erika Gee Buck C. Gibson Judge Andrew Clever Gill Carol Goforth Judge Evelyn D. Gomez Jack W. Gooding Judge David R. Goodson Micah L. Goodwin Sara Gosman Michael Kenneth Goswami Johnny Phillip Gregory Chief Judge Rita W. Gruber Lindsey Gustafson Dara Andrew Hall Joshua Hallenbeck Frank S. Hamlin Deborah L. Hardin Betty J. Hardy Michael E. Harmon Shaun M. Harms Judge Patricia Sievers Harris Michael McCarty Harrison Randy Hayman Frank Head Jr. Judy Simmons Henry Chief Chad Henson Daniel Lee Herrington Denise Reid Hoggard Robert M. Honea Lauren White Hoover Matthew R. House Col. (Ret.) Roy Douglas House Harry Simmons Hurst Jr Senator Jeremy Y. Hutchinson Jill Handley Irwin Gerald Jackson Larry Jegley Amy Dunn Johnson Judge Phyllis M. Jones Jeb H. Joyce Patti Julian Steve Kardell Paul W. Keith Tiffany Tackett Kell Candice Smith Kellogg Chief Justice John Dan Kemp Jr. Ryan Kennedy Peter N. Kirsanow Joseph F. Kolb Traci H. LaCerra Special Judge David N. Laser C. Wesley Lasseigne
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J. G. (Gerry) Schulze James Monroe Scurlock Candice A. Settle Rep. Matthew J. Shepherd James E. Smith Ariel J. Snyder Sarah A. Sparkman Stuart Larson Spencer Joshua D. Standerfer Amy Lee Stewart Michael C. Stiles Charley Elise Swann Jeffrey Martin Swann Rod Sweetman Judge Richard D. Taylor Judge Joanna Boyles Taylor Andy M. Taylor Tasha C. Taylor Robert E. Tellez Christopher Terry Cheryl Thomas Geoffrey Thompson Hon. Cindy Thyer Todd Tracy Christopher L. Travis Justice Annabelle Imber Tuck Everett Clarke Tucker IV Charles W. Tucker John E. Tull III Cathy Underwood Julie Pitt Vandiver Jessica Bass Vaught Elisabeth A. Walker Jonathan Q. Warren Danielle Weatherby Barbara W. Webb Laura R. Westbrook Stephen Whaley David J. Whitaker Emily L. White Media Wilkins Charys S. Williams Mary Kathryn Williams Ryan M. Wilson Dr. Debra K. Winters Chad L. Wood Justice Rhonda K. Wood LTC Jeffrey D. Wood Andrea Grimes Woods Senator Jon Woods Jordan Woods Andrea Grimes Woods Carol Worley Jacob A. Worlow Christopher Wright James W. Wyatt Alan J. York Laura Beth York Harold Wayne Young Phillip Young Danna J. Young Heather Goodson Zachary Steven S. Zega
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Vol. 53 No. 1/Winter 2018 The Arkansas Lawyer
Interpreting Arkansas’ Medical Marijuana Statute: An Uncertain Landscape for Employees and Employers Alike By Robbin S. Rahman
Robbin S. Rahman is an attorney at the Barber Law Firm in Little Rock and has over 17 years of experience as a corporate lawyer helping businesses solve critical financial, operational and legal problems.
The Arkansas Lawyer
n January 4, 2018, the United States Attorney General, Jeff Sessions, sent the marijuana industry into a panic. In a memorandum addressed to all U.S. Attorneys, Mr. Sessions reminded America that marijuana remains illegal under federal law and, in the process, rescinded the “Cole Memorandum,” an Obama-era directive to federal prosecutors to de-prioritize the prosecution of marijuana industry participants in states where it has been legalized. Importantly, the Cole Memorandum served as a sort of safe harbor around which much of the marijuana industry had been built. Whether intentional or not,1 the effect of Mr. Sessions’ memo was to dump a bit of cold water on an industry that, for the past several years, has enjoyed growing bipartisan support2 and an increasingly large footprint. For example, approximately 44 states, the District of Columbia and the territories of Puerto Rico and Guam, have enacted laws permitting the cultivation, sale and use of marijuana in some form, culminating most recently in the launch of California’s fully legal recreational marijuana market on January 1, 2018. In light of Mr. Session’s memo, the industry and the nation has been forced to turn their attention back to fundamental issues of federalism: whether the federal government’s authority to outlaw marijuana through its power to regulate interstate commerce remains superior to the powers reserved to the states under the Tenth Amendment to protect the welfare, safety and health of the public.3 Against the backdrop of a potential Constitutional crisis, state regulators are making final preparations for Arkansas’ nascent medical marijuana industry to become a living, breathing reality.4 Very soon, the interpretation and application of the Arkansas Medical Marijuana Amendment of 2016 (the “AMMA”) will be of critical importance to business owners, employees, regulators, lawyers and ordinary citizens. Nowhere are these issues more difficult and more important than in the Arkansas workplace. This article takes a brief look at the AMMA’s workplace provisions, how similar provisions have been addressed by courts in other states, and what such interpretations may mean for Arkansas.
The AMMA’s Workplace Rules Outside of the medical marijuana context, the Arkansas workplace is governed by a collection of state and federal laws, including, for example, the Americans with Disabilities Act and the Arkansas Civil Rights Act. However, because marijuana use and possession remains illegal under federal law, the applicability of these laws becomes substantially less clear in the context of legal marijuana use. In recognition of this uncertainty, the AMMA includes a collection of provisions addressing medical marijuana in the Arkansas workplace. Notably, Arkansas is one of only 10 other states with a marijuana statute that attempts to address workplace issues and relationships.5 In general, these provisions offer rights, protections, safe harbors and guidelines for employees and employers alike. The AMMA’s Employee Protections: a Powerful Tool One of the most significant employee protections provided by the AMMA is the so called “anti-discrimination provisions set forth in section 3(f )(3)(A), which provides that “[a]n employer shall not discriminate against an applicant or employee in hiring, termination, or any term or condition of employment, or otherwise penalize an applicant or employee, based upon the applicant or employee’s past or present status as a qualifying patient or designated caregiver.” In addition, section 3(a) provides that a qualifying patient may not be denied any “right or privilege” as a result of the medical use of marijuana in accordance with the AMMA. When combined, these provisions may offer the best hope for retaining some of the traditional rights and protections granted to employees, even in the context of medical marijuana. Although the effectiveness of these provisions will remain largely uncertain
until Arkansas courts have an opportunity to consider them, several observations can be made. First, Arkansas’ inclusion of statutory workplace rules protecting employees in its medical marijuana program may signal that it will join a recent and growing state-law trend to recognize workplace protections, even in the context of legal marijuana use. Historically, courts in jurisdictions with a legal marijuana program have declined to interpret the relevant statutory scheme to include workplace protections. The United States Courts of Appeal for the Sixth6 and Ninth Circuits,7 and the State Supreme Courts for California,8 Colorado,9 Montana10 and Oregon11 each have dismissed wrongful termination or disability-based discrimination claims where the employee was terminated by his or her employer for using marijuana even though such use was legal under applicable state law. These courts rejected employment-law-based causes of action based on a finding that either: (a) federal law preempted such rights or (b) the relevant statutory scheme was silent on workplace protections. In these jurisdictions, employers largely are free to take adverse actions with respect to employees who are legal marijuana users without fear of liability. In contrast, in states with marijuana statutes that address the workplace and employee protections, courts have been more willing to consider employee claims. For example, in 2017, courts in Rhode Island,12 Massachusetts13 and Connecticut14 each signaled a willingness to accept wrongful termination or employment discrimination claims as a result of an employee’s (or applicant’s) use of marijuana pursuant to a state marijuana program. In each case, the court’s willingness stemmed from stronger language in the relevant marijuana statute indicating legislative
intent to regulate the workplace. Arkansas’ inclusion of a comparatively robust set of rules governing the workplace, including an explicit anti-discrimination provision, may signal to Arkansas courts that the AMMA was intended to retain the rights and responsibilities traditionally enjoyed by Arkansas employees. Second, as a corollary to the concept that the AMMA intended to confer protections upon Arkansas employees, Arkansas employers may find it more difficult to argue that federal law (primarily, the Controlled Substances Act) preempts the AMMA. The clear trend in states lacking explicit workplace protections has been to find that federal law preempted any employee protection under state marijuana laws.15 However, preemption arguments have been rejected in states that, like Arkansas, have included explicit anti-discrimination provisions in their marijuana laws.16 As the court in Noffsinger v. SCC Niantic Operating Co., LLC noted, “courts and commentators alike have suggested that a statute that clearly and explicitly provided employment protections for medical marijuana users could lead to a different result” from the historical practice of refusing to enforce a state marijuana statute’s employee protections on the basis of federal preemption.17 It is worth noting, however, that at least one of the courts that rejected federal preemption as a basis to not enforce an employee protection viewed the continued existence of the Rohrabacher–Blumenauer Amendment (a 2014 amendment to the federal spending bill that prevents funds appropriated to the Department of Justice from being used to interfere with the implementation of state medical marijuana laws) as a “direct and unambiguous indication that Congress has decided to tolerate the tension, at least for now, between the federal and state
Vol. 53 No. 1/Winter 2018 The Arkansas Lawyer
regimes.”18 President Trump has signed a temporary spending bill that extends the Rohrabacher-Blumenauer Amendment through March 23, 2018. To the extent this measure is not included in any final spending bill, one justification for the rejection of federal preemption arguments may disappear. Ultimately, until the law is more settled on this issue, federal preemption may be a difficult case to make in Arkansas, but it likely will be part of every employer’s defense to claims brought under the AMMA. Finally, it remains unclear whether a private right of action exists under the AMMA. Although it includes a collection of provisions limiting the liability for damages for violating the anti-discrimination provisions of the AMMA,19 no provision explicitly vests an aggrieved party with a cause of action under the AMMA. Unlike other statutes with an explicit private right of action,20 the Arkansas legislature omitted such language from the AMMA. Courts in other states considering this issue have found that a private right of action exists in medical marijuana statutes notwithstanding the absence of explicit vesting language.21 The AMMA’s Employer Protections: Legislatively Created Safe Harbors Arkansas employers face a similarly uncertain landscape with respect to rights and protections set forth in existing workplace laws. In an effort to remove some of this uncertainty, Arkansas Legislators approved Act 593 in early 2017, which amended the AMMA. Act 593 included several important employer protections, the most important of which are the statutory safe harbors found in sections 3(f )(3)(B) & (C). For example, one of the most fundamental employer protections in the AMMA is that an employer is not required to accommodate the ingestion of marijuana in the workplace or an employee working while under the influence of marijuana. Act 593 further strengthens this protection by creating a safe harbor that allows an employer to act on its “good faith belief ” that a qualified patient is “under the influence” at the workplace.22 The AMMA defines “good faith belief ” in an expansive manner, permitting the employer to rely on virtually any evidence it reasonably believes to be reliable, subject only to the requirement that the evidence cannot be so obviously without basis that accepting it as truth would constitute “gross negligence.”23 “Un32
The Arkansas Lawyer
der the influence” is defined in a similarly expansive manner, allowing an employer to look to a wide variety of physical cues to assess whether an employee is currently using marijuana—including the employee’s choice of clothes and odor.24 Critically, however, the AMMA does not permit an employer to base its “good faith belief ” of workplace use solely on a positive drug test. Similarly, a positive drug test is excluded from the list of things that can serve as an indication that the employee is “under the influence” at work. Perhaps in recognition of the inherent problems with using the results of a urine test (the most common method of drug testing) to determine whether an employee is impaired by marijuana,25 Act 593 makes clear that a positive drug test must be accompanied by one or more of the other types of evidence described in the definition of “good faith belief ” in order to qualify for the safe harbor. In addition, Act 593 created a second safe harbor that permits an employer to implement a substance abuse or drug-free workplace policy and take action against any employee/applicant who fails a drug test implemented under such policy.26 On its face, the drug-testing safe harbor seems to allow an employer to completely eliminate marijuana use from its workplace as part of a written drug policy, including legal medical marijuana use after hours or off-duty. However, recent case law from other jurisdictions suggests that Arkansas employers may be required to consider accommodations for medical marijuana use, even in the face of drug policies prohibiting it. For example, in Barbuto v. Advantage Sales and Marketing, LLC,27 the Supreme Judicial Court of Massachusetts allowed claims of handicap discrimination by a registered patient under Massachusetts’ medical marijuana program to survive a motion to dismiss. In particular, the court rejected the argument that the employer had the right to terminate the employee based upon a failed drug test, and instead held that the plaintiff was a qualified handicapped person and permitting her legal use of medical marijuana was not a per se unreasonable accommodation.28 Citing the Massachusetts’ medical marijuana law’s guarantee that qualified patients may not be denied any “right or privilege,” the court permitted the discrimination claim to proceed, but noted that the employer still had the opportunity to introduce evidence that the plaintiff ’s use of medical marijuana
would impose an undue hardship on the defendant’s business.29 Similarly, in Callaghan v. Darlington Fabrics Corp.,30 the Superior Court of Rhode Island granted summary judgment to an employee who was denied employment based on her inability to pass a drug screening and interpreted the Rhode Island anti-discrimination provision to impose an implied obligation of the employer to accommodate off-premises medical marijuana use.31 Although not binding authority, Arkansas courts may be influenced by the similarity in the statutory provisions at issue in the Barbuto and Callaghan decisions and may require employers to accommodate off-site use of medical marijuana, notwithstanding drug policies that prohibit such use. For example, as in Barbuto and Callaghan, section 3(a) of the AMMA prohibits the denial of any “right or privilege” to a qualified patient, including, for example, the right to be free from disability discrimination. In addition, section 6(b)(2) of the AMMA provides that an employer is not required to accommodate the ingestion of marijuana in a workplace or an employee working while under the influence of marijuana. As noted by the Barbuto and Callaghan courts, the negative inference of this section may be that accommodation outside of the workplace or while the employee is not under the influence is not only permissible, but may actually be required.32 Ultimately, it is possible that the AMMA’s drug-testing safe harbor may be sufficient to overcome a Barbuto- or Callaghan-like outcome (neither court considered a similar statutory safe-harbor), but until an Arkansas court rules on these issues, a cautious approach is warranted. Finally, consistent with an overarching desire to ensure safety in the workplace, the AMMA added a safe harbor permitting an employer to categorically exclude qualifying patients from “safety sensitive” positions.33 The Amendment defines safety sensitive broadly to incorporate essentially any position identified by any federal or state agency as safety sensitive, as well as any position designated in writing by an employer as safety sensitive, including, for example, any position that requires carrying a firearm, performing “life-threatening procedures” or operating machinery.34 Importantly, for purposes of excluding an employee from a safety-sensitive position, a positive test result for marijuana creates a presumption that the
employee is engaging in the “current use of marijuana” and can therefore be excluded without additional evidence or consideration. In addition, although the AMMA includes a requirement that the safety sensitive designation be in writing, at least one court has suggested that a written policy may not be necessary. In particular, in Barbuto, the court observed that the employer could overcome any requirement to accommodate a claim of disability necessitating medical marijuana use if it could offer evidence that marijuana use would pose an “unacceptably significant safety risk to the public, the employee or fellow employees.”35 Whether such an argument would work in Arkansas, where a statute sets forth specific guidelines to qualify for the safe harbor, remains unclear. Conclusion The AMMA attempts to address many of the inherent problems with medical marijuana in the workplace, problems that states like California, Colorado, Oregon and Washington opted to ignore. Nonetheless, significant questions of interpretation and application remain. Until Arkansas courts have evaluated some of the issues identified above, employers and employees alike would be wise to take into account the lessons learned from some of the more recent cases and tread carefully. However, even if Arkansas courts follow the lead of courts in states like Massachusetts which have been more willing to protect medical marijuana use in the workplace, the specter of federalism and the U.S. government’s ability to disable the entire industry is ever-present.36 Endnotes: 1. Author’s note: It was totally intentional. 2. See Justin McCarthy, Record-High Support For Legalizing Marijuana Use in the U.S., Gallup (Oct. 25, 2017), http://news.gallup.com/poll/221018/record-high-supportlegalizing-marijuana.aspx (reporting on the results of a survey conducted in October 2017 that revealed record high levels of support for marijuana legalization, including over 51% support by those who identified as Republican). 3. The Supreme Court already has ruled in favor of the federal government in Gonzales v. Raich, 545 U.S.1, 125 S. Ct. 2195 (2005). Accordingly, any change to the balance of power between state marijuana laws and the federal prohibition set forth in
the Controlled Substances Act must come from Congress. 4. The first licenses to cultivate medical marijuana are anticipated to be awarded in late February 2018, with dispensary licenses to follow approximately 90 days later. 5. The other states are Arizona, Connecticut, Delaware, Illinois, Maine, Minnesota, Nevada, New York and Rhode Island. 6. Casias v. Wal-Mart Stores, Inc., 695 F.3d 428 (6th Cir. 2012). 7. James v. City of Costa Mesa, 684 F.3d 825 (9th Cir. 2012). 8. Ross v. RagingWire Telecomm., Inc., 174 P.3d 200 (Cal. 2008). 9. Brandon Coats v. Dish Network, LLC, 350 P.3d 849 (Colo. 2015). 10. Johnson v. Columbia Falls Aluminum Co., LLC, 2009 Mont. LEXIS 120 (Mont. Mar. 31, 2009). 11. Emerald Steel Fabricators, Inc. v. Bureau of Labor & Indus., 230 P.3d 518 (Ore. 2010). 12. Callaghan v. Darlington Fabrics Corp., 2017 R.I. Super. LEXIS 88 (R.I. Sup. Ct. May 23, 2017). 13. Barbuto v. Advantage Sales and Mktg., 78 N.E.3d 37 (Mass. 2017). 14. Noffsinger v. SSC Niantic Operating Co. LLC, 2017 U.S. Dist. LEXIS 124960 (D. Conn. Aug. 8, 2017). 15. See, e.g., Emerald Steel, 230 P.3d 518. 16. See, e.g., Callaghan, 2017 R.I. Super. LEXIS 88; Noffsinger, 2017 U.S. Dist. LEXIS 124960. 17. 2017 U.S. Dist LEXIS 124960, at *14. 18. See Callaghan, 2017 R.I. Super. LEXIS 88, *44. 19. See AMMA at § 3(f )(3)(D). 20. See, e.g., Ark. Code Ann. § 16-123107(b) (providing explicit private right of action for employment discrimination.) 21. Barbuto, 78 N.E.3d at 48; Callaghan, 2017 R.I. Super. LEXIS 88, *5; Noffsinger, 2017 U.S. Dist. LEXIS 124960, *22. 22. AMMA at § 3(f )(3)(B)(ii). 23. Id. at § 2(23)(C). 24. Id. at § 2(26)(B). 25. See Stacy A Hickox, Drug Testing of Medical Marijuana Users in the Workplace: An Inaccurate Test of Impairment, 29 Hofstra Lab & Emp. L. J. 273, 299 (2012). 26. AMMA at § 3(f )(3)(B)(i). 27. 78 N.E.3d 37 (Mass. 2017). 28. Id. at 45–47. 29. Id. at 47–48. 30. 2017 R.I. Super. LEXIS 88 (R.I. March
23, 2017). 31. Id. at *25–27. 32. Barbuto, 78 N.E.3d at 46; Callaghan, 2017 R.I. Super. LEXIS 88 at *21–22. 33. AMMA at § 3(f )(3)(C). 34. AMMA at § 2(25). 35. Barbuto, 78 N.E.3d at 47–48. 36. Stephanie Francis Ward, New US Attorney Issues Apparent Warning as Massachusetts Prepares For Legalized Marijuana, ABA Journal (Jan. 9, 2018), http://www. abajournal.com/news/article/ (reporting that the Trump-appointed U.S. Attorney for Massachusetts stated that legal marijuana sellers could face criminal prosecution in Massachusetts, consistent with Attorney General Sessions’ recent memo.)
Recognizing Pearls in the Medical Record of Meritorious Social Security Disability Cases By Dr. Frank Griffin, M.D., J.D.
wenty years in medical practice convinced me that social security disability claims are adjudicated inconsistently, with meritorious claims often denied while dubious claims are occasionally successful.1 After augmenting my medical experience with legal insight obtained while clerking in an appellate federal court,2 I will share some thoughts in this article regarding ways attorneys may be more likely to win meritorious social security disability cases by recognizing important facts in the medical record helpful in properly establishing claimants’ residual functional capacity (RFC) and credibility.
Dr. Frankie M. Griffin, M.D., J.D., teaches health law and policy at the University of Arkansas School of Law and also does some private medical-legal consulting work.
The Arkansas Lawyer
An Abbreviated Overview of the Claim Process The outcome of many disability cases comes down to an administrative law judge’s (ALJ) (1) determination of the claimant’s RFC and (2) assessment of the claimant’s credibility regarding subjective complaints. The five-step process outlined in the regulations ultimately requires the ALJ to determine whether the claimant has the RFC to perform “past relevant work,” and if not, to perform “any relevant work.”3 For Social Security purposes, a claimant is “disabled” if his impairment is so severe that he cannot “do his previous work” and likewise cannot “engage in any other kind of substantial gainful work which exists in the national economy.”4 RFC is defined as “what [the claimant] can still do despite his or her physical or mental limitations.”5 “The ALJ must determine the claimant’s RFC based on all relevant evidence, including medical records, observations of treating physicians and others, and [the] claimant’s own descriptions of his limitations”—including the claimant’s age, experience, and education.6 The RFC determination includes an assessment of the claimant’s credibility regarding subjective complaints, which are analyzed using the familiar Polaski factors.7 The ALJ may discount claimants’ subjective complaints “if there are inconsistencies in the evidence as a whole,”8 but the “ALJ must make an express credibility finding and give his reasons for discrediting the testimony.”9 In order to be con-
sidered conclusive, the ALJ’s findings must be supported by “good reasons” and “substantial evidence.”10 Substantial evidence is “less than a preponderance, but enough that a reasonable mind would find it adequate to support the ALJ's determination.”11 Overcoming an ALJ’s Zombie Biases, Incorrect Medical Assumptions, and Failure to Recognize Nonexertional Limitations in the RFC Determination ALJ errors regarding credibility and RFC determinations tend to center around three issues. First, ALJs sometimes erroneously discount claimants’ credibility regarding subjective complaints of pain by finding claimants’ performance of necessary activities of daily living (ADL) and/or simple recreational activities inconsistent with subjective complaints of disabling pain.12 Because ADLs are necessary for life—including personal hygiene (showering, bathing, etc.), eating (going to grocery store, preparing meals, etc.), social interaction, etc.—only a bedridden zombie (i.e., someone devoid of life and movement) could avoid ADLs altogether. Physical activity does not necessarily discredit claims of disabling pain. In fact, within certain parameters (e.g., limited frequency, duration, intensity, timing), physical activity can be used to treat chronic pain and is usually medically preferable to sedentary behavior—so the claimant may be following doctors’ orders by participating in simple ADLs and recreational activities, despite a painful disability.13 Physicians generally recommend avoidance of inactivity to prevent further disability, chronic disease, and early death—even in people with painful disabilities.14 Doctors often recommend physical activities (like ADLs) to prevent: (1) blood clots,15 (2) disuse osteopenia or osteoporosis leading to bone fracture,16 (3) reflex sympathetic dystrophy (a.k.a., complex regional pain syndrome),17 (4) depression, and (5) other maladies associated with inactivity due to pain. Similarly, low intensity recreational activities can be therapeutic, even to the most disabled; activities like fishing, walking in the park, or going to church may also be recommended by doctors to help prevent contractures, disuse atrophy, osteopenia, depression associated with disability, and death from inactivity.18 Further, ADLs and low intensity recreational activities can be carried out at the whim of the claimant when he or she is
Figure 1 having a “good day” and discontinued immediately if symptoms occur—unlike most job duties, which require scheduled work time and physical activity requirements. Likewise, ADLs may be done in private using home modifications or accommodations not available in the work environment, do not involve the stress associated with job performance, and do not include the social interaction often required for similar work activity. Therefore, when physicians recommend ADLs and recreational activities, those recommendations are not inconsistent with a finding that the claimant is experiencing disabling pain and unable to engage in gainful employment activities. When an ALJ uses simple ADLs or recreational activities to question your client’s credibility, look closely for recommendations in the medical record that the patient avoid inactivity, participate in physical therapy or low intensity physical exercise, and/or continue with ADLs; ask an expert directly if he or she recommends that patients with chronic pain or disability become bedridden zombies.19 ALJs are required to consider subjective pain as relevant and probative to the disability determination, and failure to consider it or dismissing it on an improper basis is ground for remand.20 Second, ALJs sometimes erroneously consider normal x-ray or laboratory findings as being inconsistent with disability. Normal x-ray or lab reports do not necessarily refute a claimant’s claim of pain or disability. For example, an ALJ may sometimes consider an orthopedic surgeon’s description of a fracture in an x-ray as being “healed” with hardware
in “good” position as evidence to refute a claim of pain or disability. But normal x-rays often do not tell the whole story. Figure 1 is an x-ray example from a patient I treated many years ago who came to me with hardware placed by another surgeon; my x-ray report described the fracture (tibial osteotomy) as “healed with hardware [i.e., the white staples on the left] in good position.” However, despite the “normal” x-ray report regarding the fracture, the patient was experiencing disabling knee pain, and the x-ray also shows “bone against bone” arthritis in the knee joint. So, fracture healing and hardware position are only a small component of the big picture of an orthopedic patient’s potential disability or pain. Further, painful ligaments, muscles, tendons, and other soft tissues are usually not visible on plain x-rays—so an ALJ’s reliance on a normal x-ray report alone is rarely justified to deny disability. Similarly, most other radiographic and/or lab test results are not appropriate for disability determination for reasons beyond the scope of this article. Emphasis should be placed on what the physicians say about the claimant’s condition, restrictions, and limitations—regardless of whether x-rays or lab results are read as normal. Third, and likely most importantly, ALJs often overlook nonexertional limitations in erroneous RFC determinations where meritorious claims are denied. RFCs are generally stated in terms of the Department of Labor’s Dictionary of Occupational Titles (DOT) “exertional” categories of sedentary, light, medium, heavy, and very heavy work.21 Courts have made it clear that it is inappropriate for an ALJ to rely solely upon the DOT exertional categories in disability determinations.22 Specifically, the DOT guidelines are not fully applicable if the claimant has significant nonexertional limitations.23 A “nonexertional limitation” is defined as an impairment that affects the claimant’s ability “to meet the demands of jobs other than strength demands.”24 Listed examples of nonexertional limitations include (1) difficulty functioning due to nervousness, anxiety, or depression, (2) “difficulty maintaining attention or concentrating,” (3) “difficulty understanding or remembering detailed instructions,” (4) vision or hearing loss, (5) difficulty “tolerating . . . dust or fumes” or similar work conditions, and (6) difficulty “performing the manipulative or postural functions of some work such as reaching,
Vol. 53 No. 1/Winter 2018 The Arkansas Lawyer
handling, stooping, climbing, crawling, or crouching.”25 Pain can be an exertional limitation, nonexertional limitation, or both.26 If the claimant has significant nonexertional limitations, “a disability decision cannot be made solely on the basis of the vocational guidelines.”27 A thorough and attentive review of your client’s medical record by a knowledgeable attorney may reveal significant nonexertional limitations documented by medical personnel. In addition to those listed in the regulations and mentioned above, a few examples of nonexertional limitations recognized by courts include: (1) the need for a climate controlled work environment (e.g., for an amputee),28 (2) “breathing impairment[s]” that impact a claimant’s ability to work in climates involving “fumes . . . smoke, perfume, deodorant, and car exhaust,”29 (3) mental or psychological impairments,30 (4) sleep disorders including insomnia or the need to take naps during the day,31 (5) problems with adaptability and ability to handle changes in routine in the work environment,32 (6) alcoholism,33 (6) difficulties with traveling,34 and (7) “manipulation and stamina limitations.”35 Thus, credible nonexertional limitations in the medical record or reported by the claimant should be considered by the ALJ in making his or her RFC determination—otherwise, the RFC determination may not be considered substantial evidence, and the case may be subject to remand on appeal. Ensuring Accuracy of the Medical Record and Requiring a Properly Phrased, Accurate Hypothetical Question to the Vocational Expert in the RFC Determination Today’s electronic medical records (EMR) often contain inaccuracies that can affect disability determinations.36 To help avoid inaccuracies, the focus should generally be upon the opinions of physicians who specialize in the claimant’s area of alleged disability.37 For example, a cardiologist seeing a patient for a heart valve problem may sometimes mistakenly document a “normal gait” and “no back pain” even though the patient is simultaneously seeing an orthopedic surgeon for back pain and a related limp. Surprisingly, the ALJ may erroneously rely on the cardiologist’s note as evidence that the patient could walk normally and without back pain. Because the cardiologist focused on heart problems, not leg or back issues, his or her notations on gait and back pain should not be the focus of the ALJ’s evaluation. 36
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Further, the cardiologist’s note in the example above reflects a common problem in today’s EMRs—doctors understandably focus their limited time on patients’ complaints relevant to the particular office visit and, in generating the medical record, simply accept and sign the default boilerplate language generated in EMR software templates for issues irrelevant to the problem-at-hand that day.38 Unfortunately, this tendency creates inaccurate boilerplate entries in the medical record that can lead judges down the wrong road, so it is important to recognize and point out likely EMR errors. Luckily, many EMR inaccuracy issues are fairly easy to spot and can be exposed by pointing out signs such as: (1) the language is boilerplate with regard to a particular body part or symptom in a list; (2) the language is repetitive and does not change between clinic visits—even those months apart; (3) the record is more detailed and includes lists of more issues/body parts than the doctor could realistically evaluate in the time spent with the patient; (4) the report is contradicted by other doctors who were treating the patient more specifically for the issue of concern; and/ or (5) the language could apply to most any patient (i.e., it is not personalized). Attentive attorneys can argue that erroneous or inaccurate EMR entries should not be regarded as “substantial evidence” in disability determinations. Accuracy is especially important at the administrative hearing, because the ALJ’s hypothetical posed to the vocational expert must accurately reflect all of the claimant’s limitations. An ALJ “may rely on a vocational expert’s (VE) response to a properly formulated hypothetical question to . . . [show] that jobs exist in significant numbers which a person with the claimant’s [RFC] can perform.”39 “The point of the hypothetical question is to clearly present to the VE a set of limitations that mirror those of the claimant.”40 In order for a VE’s testimony to be considered “substantial evidence,” it must be “based on a properly phrased hypothetical question” that includes all of the claimant’s limitations (including exertional and nonexertional limitations) found credible by the ALJ.41 This is because “[u]nless the hypothetical question comprehensively describes the limitations on a claimant’s ability to function, a vocational expert will be unable to accurately assess whether jobs do exist for the claimant.”42 During cross-examination of the VE, any facts, claims, or limitations (including non-
exertional limitations) mentioned credibly in the medical record and excluded in the ALJ’s hypothetical should be added by the claimant’s attorney to the ALJ’s hypothetical and reposed to the VE for reconsideration of the claimant’s job prospects.43 If the VE’s opinion is averse to your client, his or her credibility should be probed on cross, while realizing the ALJ ultimately is entitled to substantial deference in his or her credibility determination of the VE.44 When doctors reach opinions in the medical record that are averse to your client, consider asking whether the doctor, like the VE, understood and considered all of the claimant’s limitations and whether the doctor had a conflict of interest. While a lack of medical restrictions is generally inconsistent with disability,45 a doctor’s failure to document disability does not necessarily mean that the physician determined that the patient was not disabled. Inquire whether the doctor was even asked about work status or disability. When a patient didn’t ask me for a work release, as an orthopedic surgeon specialist, I might assume either that another doctor was handling the patient’s work status or that the patient was unemployed. Also, ask whether the doctor was addressing all of the patient’s limitations, or only those limitations relevant to his or her medical specialty. While I was confident releasing patients back to work based upon the orthopedic problems that I was treating, usually I required that patients with other medical problems return to their primary care physician for a full release. Further, consider whether the patient brought up the subject of disability with his doctors because patients sometimes may not mention the subject due to the stigma associated with disability. However, be aware that a patient’s failure to seek any doctor’s advice regarding his medical complaints may be fatal to his disability claim.46 Finally, if a doctor’s opinion is averse to your client, consider that some doctors may have conflicts of interest that pressure them to document that a patient is ready for return to work—especially if that physician’s income is connected directly or indirectly to the patient’s employer. In my opinion, the most reliable method to assess a patient’s ability to return to his or her job—and to obtain an accurate RFC—is to send the patient to a physical therapy, occupational therapy, or rehabilitation center that specializes in performing RFC testing (a.k.a., “functional capacity evalu-
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PRESERVE THE Vol. 53 No. 1/Winter 2018 The ArkansasJURY LawyerTRIAL 37
ations”); often these centers obtain details of the patient’s work requirements, observe the patient for several hours in an environment simulating the patient’s job requirements, and generate a detailed report that delineates the patient’s functional capacity in DOT terminology. If a physician has filled out a detailed return to work evaluation that is averse to your client after only a 15-minute office visit, look for conflicts of interest and probe the credibility of the physician’s opinion because other physicians’ opinions or an independent medical evaluation opinion may be more reliable. Conclusion “An ALJ is not entitled to pick and choose through an uncontradicted medical opinion, taking only the parts that are favorable to a finding of nondisability”—so use the whole medical record to your client’s advantage.47 An attentive review of the medical record by a knowledgeable attorney can be decisive in the outcome of the ALJ’s RFC and credibility determinations, which will often determine the success or failure of social security disability claims. Endnotes: 1. The author is a board certified orthopedic surgeon. 2. The author clerked for the Honorable Judge Bobby Shepherd of the United States Court of Appeals for the Eighth Circuit. 3. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a) (4) (The steps are: (1) Is the claimant currently performing substantial gainful activity (SGA)? (2) Does the claimant have a severe impairment? (3) Does the impairment meet or equal an impairment listed in Appendix I? (4) Does the impairment prevent the claimant from performing past relevant work? (5) Does the impairment prevent the claimant from doing any other work?). See, e.g., PateFires v. Astrue, 564 F.3d 935, 942 (8th Cir. 2009) (applying the five-step process to an Arkansas case). 4. 42 U.S.C. § 423(d)(2)(A). 5. Lauer v. Apfel, 245 F.3d 700, 703 (8th Cir. 2001) (citing 20 C.F.R. § 404.1545(a)) (internal quotation marks omitted). 6. Baldwin v. Barnhart, 349 F.3d 549, 556 (8th Cir. 2003). 7. Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984) (In addition to the claimant’s prior work record, the Polaski factors include (1) the claimant’s daily activities; (2) the duration, frequency and intensity of the pain; (3) precipitating and aggravating factors; 38
The Arkansas Lawyer
(4) dosage, effectiveness, and side effects of medication; and (5) functional restrictions.); see also Lowe v. Apfel, 226 F.3d 969, 972 (8th Cir. 2000) (noting Polaski factors must be considered before discounting subjective complaints); see also 20 C.F.R. § 404.1529 (explaining how pain is evaluated). 8. Id. 9. Hall v. Chater, 62 F.3d 220, 223 (8th Cir. 1995). 10. Vester v. Barnhart, 416 F.3d 886, 889 (8th Cir. 2005). 11. Guilliams v. Barnhart, 393 F.3d 798, 801 (8th Cir. 2005). 12. See, e.g., Casey v. Astrue, 503 F.3d 687, 696 (8th Cir. 2007) (noting that “playing cards, watching television, shopping, performing occasional housework, and driving children and wife [had been] held inconsistent with disabling pain”). 13. Kirsten Ambrose and Yvonne Golightly, Physical exercise as non-pharmacological treatment of chronic pain, 29(1) Best Pract. Res. Clin. Rheumatol. 120–130 (Feb 2015); see also Centers for Disease Control and Prevention, Physical activity, https://www. cdc.gov/physicalactivity/index.html (noting the importance of physical activity in improving overall health and reducing the risk of many chronic diseases) (last visited September 23, 2017). 14. Lea Steakley, More evidence that prolonged inactivity may lead to shortened life span, increase risk of chronic disease, Stanford Medicine’s SCOPE, Jan 15, 2014, available at http://scopeblog.stanford.edu/2014/01/15/ more-evidence-that-prolonged-inactivitymay-shorten-life-span-increase-risk-of-chronic-disease/ (last visited September 23, 2107). 15. See, e.g., Michele Beckman et al., Venous Thromboembolism: A Public Health Concern, 38(4S) Am. J. Prev. Med. S495-S501 (listing “immobility” as one of the known risk factors leading to “considerable morbidity and mortality” associated with blood clots each year). 16. See, e.g., National Institutes of Health (NIH), Osteoporosis and Related Bone Diseases National Resource Center, Bed Rest and Immobilization: Risk Factors for Bone Loss, (May 2016), available at https://www. niams.nih.gov/Health_Info/Bone/Osteoporosis/Conditions_Behaviors/BedRestAndImmobilizationnew5-16.pdf (describing the risk of bone loss, osteoporosis, and bone fracture related to prolonged inactivity) (last visited September 23, 2017). 17. See, e.g., Manish Singh et al., Physical Medicine and Rehabilitation for Complex Regional Pain Syndromes Treatment and Man-
agement, Medscape (May 17, 2017), http:// emedicine.medscape.com/article/328054treatment (discussing the importance of physical activity and recreational therapy in patients with chronic pain) (last visited September 23, 2017). 18. Id. 19. Martin v. Heckler, 748 F.2d 1027, 1033 (1984) (reversing finding of non-disability in “practically houseridden” claimant who had a breathing impairment leading to five hospitalizations and four emergency room episodes requiring intensive intravenous treatment, along with additional attacks two or three times per week in a two-year period). 20. Diabo v. Secretary of Health, Ed. and Welfare, 627 F.2d 278, 282 (D.C. Cir. 1980). 21. 20 C.F.R. § 404.1567. 22. See, e.g., Barker v. Shalala, 40 F.3d 789, 795 (6th Cir. 1994) (“[i]t would be manifestly inappropriate to make the DOT the sole source of evidence concerning gainful employment”). 23. 20 C.F.R. § 404.1569a. 24. 20 C.F.R. § 404.1569a(c)(1). 25. Id. 26. Gossett v. Bowen, 862 F.2d 802, 806 (10th Cir.1988). 27. Martin, 748 F.2d at 1034–35. 28. Carey v. Apfel, 230 F.3d 131, 140 (5th Cir. 2000) (finding claimant “would need to work in a climate controlled environment given the sensitivity of the remainder of the amputated limb and the problems associated with wearing the prosthesis in extremely hot or cold temperatures”). 29. Martin, 748 F.2d at 1034–35; see also Allen v. Secretary of Health and Human Services, 726 F.2d 1470, 1472–73 (9th Cir. 1984) (noting “the guidelines do not fully apply where the claimant suffers from an impairment that results in environmental restrictions . . . [such as] an inability to tolerate dust or fumes”) (internal quotation marks omitted). 30. See, e.g., Loza v. Apfel, 219 F.3d 378, 394, 398–99 (5th Cir. 2000). 31. Diabo, 627 F.2d at 283 (finding the ALJ erred in not considering claimant’s need to take daily naps); Koenig v. Chater, 936 F. Supp. 776, 785 (D. Kan. 1996) (case remanded where ALJ failed to address claimant’s bona fide sleep problems in the hypothetical posed to the VE). 32. Gann v. Berryhill, 864 F.3d 947, 952–53 (8th Cir. 2017). 33. Fields v. Secretary of Health, Ed. and Welfare, 444 F. Supp. 1003, 1007 (S.D.N.Y. 1977) (noting alcoholism alone may be a
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“disabling disease”). 34. Diabo, 627 F.2d at 283 (noting that the ALJ erred in not including the claimant’s “difficulties traveling” in the hypothetical posed to the VE). 35. Johnson v. Callahan, 968 F. Supp. 449, 464 (N.D. Iowa 1997) (noting ALJ erred in not including claimant’s manipulation and stamina limitations in the hypothetical posed 40
The Arkansas Lawyer
to the VE). 36. See, e.g., Nita Valikodath, et al., Agreement of ocular symptom reporting between patient-reported outcomes and medical records, 135(3) Jama Ophthalmol 225-31 (Mar. 2017) (finding substantial discrepancies between symptoms reported by patients on a questionnaire and those documented in the electronic medical record); Chris Joon Hong,
et al., Accuracy and completeness of electronic medical records obtained from referring physicians in a Hamilton, Ontario, plastic surgery practice, 23(1) Plast. Surg. (OAKV) 48-50 (Spring 2015) (noting that “inaccuracies and incompleteness are a frequently occurring problem in EMRs”); J. Tse, et al., How accurate is the electronic health record?, 168 Stud. Health Technol. Inform. 158-64 (2011) (finding “errors and inaccuracies” in EHRs). 37. See Durham v. Gardner, 392 F.2d 168 (4th Cir. 1968) (noting that “[i]t is proper for the Secretary to give greater weight to the opinion of a physician specializing in the field in which the plaintiff’s impairment lies than to an opinion of plaintiff’s general practitioner”). 38. Michael Stein, When medical care is delivered in 15 minute doses, there’s not much time for caring, The Washington Post (Nov 13, 2015), available at https://www.washingtonpost.com/opinions/when-medical-careis-delivered-in-15-minute-doses-theres-notmuch-time-for-caring/2015/11/13/85ddb a3a-818f-11e5-a7ca-6ab6ec20f839_story. html?utm_term=.4f8b1f1457a7 (last visited September 25, 2017). 39. Sultan v. Barnhart, 368 F.3d 857, 864 (8th Cir. 2004) (emphasis added). 40. Roe v. Chater, 92 F.3d 672, 676 (8th Cir. 1996). 41. Tucker v. Barnhart, 363 F.3d 781, 784 (8th Cir. 2004) (stating “[t]estimony from a vocational expert constitutes substantial evidence only when based on a properly phrased hypothetical question”); see also, Gann, 864 F.3d at 952–53. 42. Smith v. Shalala, 31 F.3d 715, 717 (8th Cir. 1994). 43. Barker v. Shalala, 40 F.3d 789, 795 (6th Cir. 1994) (noting ALJ’s acceptance of VE’s testimony avoided clear error where the VE was subjected to “vigorous cross-examination by the plaintiff” and the VE’s credibility was “fully probed”). 44. Id. 45. Brown v. Chater, 87 F.3d 963, 965 (8th Cir. 1996) (noting that a “lack of significant medical restrictions [is] inconsistent with . . . complaints of disabling pain”). 46. Whitman v. Colvin, 762 F.3d 701, 706 (8th Cir. 2014) (finding that the ALJ “properly considered [claimant’s] relative lack of medical care, including his failure to seek care from charity providers, as relevant, considering [claimant’s] allegations of unbearable . . . pain”). 47. Haga v. Astrue, 482 F.3d 1205, 1208 (10th Cir. 2007).
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Vol. 53 No. 1/Winter 2018 The Arkansas Lawyer
A Message from Justice Robin F. Wynne Justice is and always has been a fundamental American value. The framers of our Constitution were explicit in declaring that one of the main reasons for having a constitution was “to establish justice,” listing it ahead of “insure domestic tranquility” and “provide for the common defence.” They recognized how central this value is to a free and fair society worth defending. For the legal profession, the idea that all citizens should have access to justice—regardless of how much money they have—is reflected in our Rules of Professional Conduct, which urge lawyers to provide at least 50 hours of pro bono service each year and donate to organizations that provide legal services to the poor. The oath that we recite when we are sworn in as licensed attorneys declares: “I will not reject, from any consideration personal to myself, the cause of the impoverished, the defenseless, or the oppressed.” Despite the value that we as a society place on the idea of “justice for all,” the reality is that more than 80% of the civil legal problems experienced by low-income individuals last year went unaddressed. As the state with the fewest attorneys per capita in the nation, access to a lawyer can be problematic even for families of ordinary means—especially those who live in critically underserved rural areas of the state. The problem is even starker for lowincome citizens, where there is only one legal aid attorney for every 14,000 Arkansans who qualify for help. Nine out of every 10 Arkansas cases involving a domestic relations, probate, housing, or debt collection issue include at least one party who does not have a lawyer. For domestic relations cases alone, about 45,000 of the state’s 50,000 cases filed annually are likely to include at least one unrepresented party. Approximately 3,000 Arkansas attorneys are currently in private practice and available to even handle cases like this, meaning it would be virtually impossible for every Arkansan with an active case who needs legal representation to actually get it. The result is that tens of thousands of our citizens who face life-altering 42
The Arkansas Lawyer
legal difficulties—the loss of a home, domestic violence, or financial difficulty—are either representing themselves in court or foregoing their rights altogether. Access to attorneys is by no means the only major challenge we face. Even when hiring a lawyer is an option, most people who experience civil justice problems handle the issues on their own or with the help of friends and family. They turn to third parties—only some of whom are lawyers—only 23% of the time. In many cases, people simply do not understand their problem as one that has a legal solution. The widespread availability of information online has transformed the way that most Americans conduct business in almost every facet of modern-day life, whether it’s grocery shopping or learning how to repair a leaky faucet. The legal services industry is no exception, yet few lawyers have adapted the way they do business. The demand for affordable services, “do-it-yourself” options, and transparent pricing has driven a new kind of legal market—one dominated by web-based companies and largely bereft of lawyers. Consumers are instead paying hundreds of dollars for documents that may turn out to be legally deficient or may leave them unprepared for what to do once the document is filed, to the detriment of the public, the profession, and our system of justice. Our courts, which have long operated on the assumption that parties will have legal representation, are on the front lines in dealing with the confluence of these developments. Dockets are increasingly bogged down by cases involving self-represented litigants that either languish for months or get dismissed outright because the parties are unfamiliar with basic procedural requirements. People understandably grow frustrated when their cases go unresolved for reasons they do not understand, ultimately losing faith in the capacity of our justice system to yield fair results. The Arkansas Supreme Court recognized the challenges facing our civil justice system when it created the Arkansas Access to Justice Commission in 2003 “to provide equal access
to justice in civil cases to all Arkansans.”1 Since that time, the Commission has sought to fulfill this mission through a variety of initiatives intended to address these challenges. Among them are recently-adopted rule changes that give attorneys clear authority to provide “limited scope” representation to those who would otherwise forego legal representation altogether. The Commission has developed a toolkit—available on its website at arkansasjustice. org/unbundling—for attorneys who wish to offer these services. The new court rules and resources have opened new opportunities for viable business models that make legal representation more affordable and accessible while generating paying work for lawyers in a largely untapped market of prospective new clients. As attorneys and judges who are sworn to consider the cause of the impoverished, the defenseless, and the oppressed in our collective pursuit of justice, it is essential that we understand the forces that have irrevocably changed the way ordinary people interact with the civil justice system. We should therefore support the efforts of the Arkansas Access to Justice Commission to expand access to justice in ways that protect the public, promote the viability of the legal profession, and preserve the integrity of our courts. Endnote: 1. In re Ark. Bar Ass’n Petition for Creation of the Ark. Access to Justice Comm’n, No. 03-979, 178 S.W.3d 457 (Ark. 2003).
Justice Robin F. Wynne is an Associate Justice of the Arkansas Supreme Court and is the Court’s liaison to the Arkansas Access to Justice Commission.
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DISCIPLINARY ACTIONS Final actions from October 1, 2017 December 31, 2017, by the Committee on Professional Conduct. Summaries prepared by the Office of Professional Conduct (OPC). Full text documents are available on-line either at http://courts. arkansas.gov and by entering the attorney’s name in the attorney locater feature under the “Directories” link on the home page, or also on the Judiciary home page by checking under “Opinions and Disciplinary Decisions.” [The “Model” Rules of Professional Conduct are for conduct prior to May 1, 2005. The “Arkansas” Rules are in effect from May 1, 2005.] SUSPENSION: WILLIAM KURT MORITZ, Bar No. 99021, of Hope, had his Arkansas law license placed on a sixty (60) month suspension and was ordered to pay $2,000 restitution by Findings & Order filed November 27, 2017, in Committee Case No. CPC-2017-004, on a complaint by Melissa Diane Hicks arising out of representation in a divorce matter, for violating Rules 1.3, 1.4(a)(2), 1.4(a)(3), 1.4(a) (4) and 1.16(d). Hicks employed Moritz in June 2016 to represent her in a divorce matter in which he charged her $3,000. Hicks paid $2,000 of the $3,000. Moritz filed a complaint for divorce on behalf of Hicks. After Hicks met with Moritz in September 2016, she placed calls to Moritz and left messages at his office telephone number and his mobile telephone number. Moritz failed to return Hicks’ calls. In December 2016, Hicks sent a letter to Moritz terminating the representation and requesting a return of her file and a refund of unearned fees. In January 2017, Hicks received a call from Moritz’s new assistant to pick up interrogatories filed by Hicks’ husband. While picking up the interrogatories, Hicks left a second letter for Moritz terminating the representation. Despite the two letters, Hicks never received a fee refund or her client file. The panel found Moritz’s prior disciplinary history was to be considered in determining the sanction. REPRIMAND: WILLIAM KURT MORITZ, Bar No. 99021, of Hope, was reprimanded, fined $2,500, and ordered to pay $650 restitution
by Findings & Order filed November 27, 2017, in Committee Case No. CPC-2017006, on a complaint by Brenda P. Perez arising out of representation in a divorce matter, for violating Rules 1.3, 1.4(a)(3), and 1.4(a)(4). Perez met with Moritz on August 5, 2016, to discuss representation in a divorce case. Moritz stated that his fee would be $650, which Perez paid in full. Moritz stated that it would take a month to prepare the paperwork. Perez waited to hear from Moritz but never did. Perez placed calls to Moritz’s office but was only able to speak to Moritz’s secretary. Unable to get an appointment with Moritz, Perez went to his office in January 2017, found the office door open, but nobody was present in the office. After waiting, Perez called the office number but nobody answered the telephone. Perez had no communication with Moritz after August 2016 and nothing was ever filed on her behalf. The panel found Moritz’s prior disciplinary history was to be considered in determining the sanction. CAUTION: MARY ELIZABETH SKINNER, Bar No. 2003178, of Stuttgart, by Consent Findings & Order filed October 20, 2017, in Committee Case No. CPC 2017-016, on a complaint filed by Jason Smith and Cedar Corner Farm of Prairie County, Arkansas, on admitted violations of Rules 1.1, 1.2(a), 1.3, 1.4(a)(3), 1.4(a)(4), 8.4(c), and 8.4(d), agreed to a caution and agreed restitution had already been paid to the former clients. Cedar/Smith had leased a farm for years from the Reitz family, with the current lease set to expire in 2012. A dispute arose and Cedar/Smith engaged Skinner for representation. Reitz sued Cedar/Smith and Skinner answered. Reitz filed an amended complaint and Skinner failed to answer and failed to notify her clients, leading to a default judgment being entered. Cedar/ Smith removed their farm equipment from the Reitz land after harvesting the 2014 crop. Upon learning of the default judgment in September 2016, Cedar/Smith made demand on Skinner for $30,000 for their damages. In February 2017, Skinner paid her former clients and their new lawyer $30,000.
Vol. 53 No. 1/Winter 2018 The Arkansas Lawyer
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Arkansas Bar Foundation Memorials and Honoraria The Arkansas Bar Foundation acknowledges with grateful appreciation the receipt of the following memorial, honoraria and scholarship contributions received during the period July 1, 2017 through December 31, 2017. In Memory of Edwin B. Alderson, Jr. Sally and Jim McLarty In Memory of Barbara Amsler Barber Law Firm LLC William E. Blanchard Miss Selma’s Schools James Robinson In Memory of David Butler Judy and Glenn Vasser In Memory of Harry D. Carter Judge Bill Wilson and Judge Cathi Compton In Memory of Justice Donald Corbin William A. Martin Judge Dick Moore Judy and Glenn Vasser In Memory of Harley Cox William A. Martin In Memory of Leanne Daniel Patti and Charles Coleman Jeffrey and Lester McKinley In Memory of Boyce Davis Judy and Glenn Vasser In Memory of Judge Lawrence Dawson Hyden, Miron & Foster PLLC Rosalind and Kirby Mouser Judge Bill Wilson and Judge Cathi Compton Mike Wilson In Memory of Jay W. Dickey, Jr. William A. Martin In Memory of Carolyn Fant Hayden and Gordon S. Rather, Jr. Judge Bill Wilson and Judge Cathi Compton In Memory of Gary Draper Fred Ursery In Memory of Jack Dunbar Judge Bill Wilson and Judge Cathi Compton In Memory of Judge G. Thomas Eisele Suzanne and H. David Blair Don A. Eilbott Nancy and Judge John N. Fogleman Judge James M. Moody Hayden and Gordon S. Rather, Jr. Michael Spades, Jr. Mike Wilson In Memory of Judge Melinda Gilbert Judge Dick Moore
In Memory of Herman Hamilton Cyril Hollingsworth William A. Martin In Memory of Judge Howard Holthoff Don A. Eilbott In Memory of Charles Neal Humphries Don A. Eilbott In Memory of Ruth Ann Jack Don A. Eilbott In Memory of Warren A. Jennings, Sr. Hayden and Gordon S. Rather, Jr. In Memory of W. Q. Hall Judge Bill Wilson and Judge Cathi Compton
Jan and Jim Sprott Judge Bentley E. Storey Marietta and Judge John F. Stroud Judy and Glenn Vasser Patricia and William Waddell Judge Bill Wilson and Judge Cathi Compton Tom D. Womack In Memory of Douglas O. Smith, Jr. Judge James M. Moody Hayden and Gordon S. Rather, Jr. Ginger and Rex Terry In Memory of David Solomon David Solomon Scholarship Fund Judge Robert Fussell William A. Martin Judy and Glenn Vasser Patricia and William Waddell Tom D. Womack
In Memory of Stephen A. Matthews William A. Martin Judy and Glenn Vasser Tom D. Womack
In Memory of William L. Terry William A. Martin
In Memory of Charles “Skip” Mooney, Sr. Deacon Law Firm Michael Gott
In Memory of Roxanne Tomhave Wilson Judge James M. Moody Judge Dick Moore
In Memory of Judge William Overton Judge James M. Moody
In Memory of Kathleen Woods Judge Bill Wilson and Judge Cathi Compton
In Memory of Jim Penick Charles T. Coleman
In Memory of William H. Woodyard Judge Dick Moore
In Memory of Charles B. Roscopf
Judge Raymond R. Abramson Mr. and Mrs. A. Gillis Allen II Philip Anderson Josh Ayers Foncie F. Bullard Dorine B. Deacon Nancy and Judge John N. Fogleman David M. Fuqua Cyril Hollingsworth Jack Horner Hyden, Miron & Foster PLLC Cynthia Satterwhite Jarboe C. Cole Jeffries, Jr. John Jewell William A. Martin Jeffrey and Lester McKinley W. Frank Morledge Rosalind and Kirby Mouser Vickey and Mike Mullally Irene and Judge Richard L. Proctor Charles D. Roscopf Mr. and Mrs. Don M. Smith Smith & Weiland, Inc. David P., Rayman and Lafe Solomon Southern Bancorp
Friday, Eldredge & Clark/Herschel Friday Scholarship Fund Friday, Eldredge & Clark LLP
to the Charles B. Roscopf Scholarship Fund
McKinley Family Scholarship Fund Jeffrey and Lester McKinley Paul B. Young, Sr. Scholarship Fund Judge H. David Young Paul B. Young, Jr. In Honor of Donna Gay Judge Allen D. Epley Judge Harry Foltz Judge Ann B. Hudson Judge John and Barbara Lineberger Judge Roger V. Logan, Jr. Judge Robin L. Mays Judge Christopher Morledge Judge William D. Newbern Judge John Plegge Judge Bentley E. Storey Arkansas Bar Foundation Mary Lou and William A. Martin
Vol. 53 No. 1/Winter 2018 The Arkansas Lawyer
IN MEMORIAM James Wesley ‘’Wes’’ Cherry, Jr., of Little Rock died on October 14, 2017, at the age of 62. Wes graduated from Hall High School and then from UALR in 1978. He earned his juris doctorate degree with honors from the University of Arkansas School of Law in 1983. Following graduation, Wes worked at a Fort Smith law firm for one year then returned home to Little Rock where he continued his legal career working for John Haley, Sr. then the Eichenbaum Law Firm. For 25 proud years, Wes worked for Dillard’s Inc. where he served as assistant general counsel then Vice President of Real Estate. He was a faithful, hardworking, devoted worker who always had a love for the law with a servant’s heart. Judge Lawrence E. Dawson of Pine Bluff died November 11, 2017, at the age of 94. He attended Magnolia A&M College (now SAU) for two years. He then attended the University of Arkansas at Fayetteville where he attained a Juris Doctorate in 1948. Following graduation from law school, he moved to Pine Bluff where he was in private practice for 10 years. He served as a United States Commissioner and in the Arkansas State House of Representatives from Jefferson County. In 1954, he ran successfully for Municipal Judge. Four years later, he ran for Chancery and Probate Judge against Pat Mullis. Mr. Mullis won but passed away shortly thereafter. The attorneys in Pine Bluff unanimously endorsed Judge Dawson to be appointed by then Gov. Faubus to fill the remaining term. He served honorably and ran without opposition and remained Judge for Jefferson, Arkansas, Lincoln and Cleveland counties. In 1968, he mounted an unsuccessful run for the Arkansas Supreme Court. Following that race, he continued as Probate and Chancery Judge. In 1992, following a lawsuit challenging redistricting, Judge Dawson was honored for his years of service by creating a Chancellor at Large
The Arkansas Lawyer
position where he tried cases throughout the state. A voracious reader, Judge Dawson devoted his time to write “50 Years as a Judge and Counting” which was both an autobiography and a treatise on the law. He was a Patron Member of the Arkansas Bar Association and a Sustaining Fellow of the Arkansas Bar Foundation. He was a member of the Jefferson County Bar Association and the American Judicature Society. He served as president of the Judicial Council. Gary “Mac” Draper of Crossett died October 17, 2017, at the age of 75. Gary was a graduate of Crossett High School, University of Arkansas at Fayetteville and University of Arkansas Law School. He began his working career at Liberty Mutual Insurance as an adjuster where he found his passion for law. He was admitted to the Arkansas Bar in 1975 and began practicing law with Ovid Switzer and later began a partnership with Griffin, Rainwater & Draper where he practiced until 2014. He was a member of the Arkansas Bar Association, Southeast Arkansas Legal Institute, Ashley County Bar Association and a member of ABOTA. He also served as Deputy Prosecuting Attorney for the Tenth Judicial District. Garnett Thomas Eisele, or “Judge” as most people, including his family, called him, died on November 26, 2017, at the age of 94. In 1942, Judge left college after one year and enlisted in the Army, concerned that he was “missing the war.” After the war, Judge returned to the states to finish his education. He often said that he made the most of the GI Bill, completing his undergraduate degree at Washington University in St. Louis (1947) and his legal education at Harvard, with a Bachelor of Law (1950) and a Master of Laws (1951). In 1951, he began practicing law in Hot Springs with the law firm of Martin, Wootton and Martin, founded by his grandfather. In 1953, he moved to Little Rock, where
he worked as an Assistant United States Attorney for two years. Next, he worked at the firm of Owens, McHaney, Lofton and McHaney. In 1960, he opened his own law office. On August 17, 1970, he was sworn in as a United States District Judge for the Eastern District of Arkansas. For the next 41 years, until his retirement in September of 2011, he devoted himself to being a fair and impartial trial judge. He was a member of the Arkansas Bar Association and a Sustaining Fellow of the Arkansas Bar Foundation. William David Hardin of Fort Smith died on December 18, 2017, at the age of 62. He was a graduate of Southside High School in Fort Smith, Southern Methodist University in Dallas, Texas, and the University of Arkansas Law School in Fayetteville. While in law school, he received the MediCo Legal Prize in 1982 awarded for outstanding work in medical legal studies. After law school, David joined his father’s law firm, Hardin, Jesson and Dawson, before opening his private law practice. He was a member of the Arkansas Bar Association and a Sustaining Fellow of the Arkansas Bar Foundation. Allan Wade “Dick” Horne died January 21, 2018, at the age of 85. He received his bachelor’s degree from Henderson State University and his law degree from the University of Arkansas. The word “retirement” wasn’t in Dick’s vocabulary and he worked up until his death, going into the office at the law firm of Dover Dixon Horne PLLC every morning. Dick was admitted to practice law in the U.S. District Courts in Arkansas, the 8th Circuit Court of Appeals and the United States Supreme Court. He was a member of the Arkansas Bar Association where he served on the House of Delegates and a Sustaining Fellow of the Arkansas Bar Foundation. In 2011, Dick received the prestigious C. E. Ransick Award of Excellence from the
IN MEMORIAM Arkansas Bar Association and the Arkansas Bar Foundation. He is a past president of the Pulaski County Bar Association. Early in his career, Dick served as chief counsel and assistant commissioner of the Arkansas Insurance Department. He was subsequently appointed insurance commissioner by Governor Winthrop Rockefeller, a position he held for three years. In 1970 he was appointed Little Rock Municipal Court Judge, serving until the following year. Phillip E. Meadows of Harrison died August 9, 2017, at the age of 89. He was a veteran of the Korean War serving in the U.S. Army with the rank of lieutenant. He received both his B.S.B.A. and his J.D. degrees from the University of Arkansas, graduating in 1962. Phil practiced his entire career in Harrison, where it seemed that, at one time, half of the Boone County Bar Association had apprenticed with him. He was a Benefactor Member of the Arkansas Bar Association. Austin McCaskill, Sr., of Little Rock died on Dec. 15, 2017, at the age of 97. At the age of 16, he went to Washington & Lee University in Lexington, Va., and graduated with a law degree at age 22. He then was inducted into the U.S. Army and was assigned to the Counter Intelligence Corps for the Atomic Bomb Project. He was a security officer at the time of his discharge. He practiced law with the firm Barber, Henry, and Thurman (which later became Barber, McCaskill, Amsler, Jones and Hale) from 1947 until 1995, when he became counsel to the firm. He continued to go into the office several times a week until just a few months ago. He was a member of the Arkansas Bar Association and a Fellow of the Arkansas Bar Foundation. He was a Fellow in the American Academy of Trial Lawyers.
The information contained herein is provided by the members’ obituaries.
James Henry Penick, III, of Little Rock, died on November 10, 2017, at the age of 62. Jim attended Washington and Lee University and graduated from Southern Methodist University with a B.B.A. in Finance. He obtained his Juris Doctorate in 1981 from the University of Arkansas, Fayetteville School of Law. Jim began his career as an associate with the Rose Law Firm in commercial litigation. From 1985-1989, he served as the Vice President, General Counsel, and Chief Financial Officer for a commercial real estate developer. In 1989, Jim joined the firm now known as Eichenbaum Liles PA, where he remained a partner until his death. His practice concentrated in commercial and business litigation. He was a member of the Arkansas Bar Association. Douglas O. Smith Jr. of Fort Smith died November 27, 2017, at the age of 82. He earned a Bachelor’s degree with honors in 1956 at the University of Arkansas. Doug obtained his law degree from Yale Law School in 1959, and after passing the Arkansas Bar examination that year, entered into active practice at Warner, Warner and Ragon. Doug practiced law in Fort Smith for the ensuing 51 years until his retirement from active practice. Doug Smith was a gifted and accomplished lawyer, a mentor to his colleagues of the Bar, both within and without his firm, a scholar of the law, and a worthy advocate. He was a member of the Arkansas Bar Association and a Fellow of the Arkansas Bar Foundation. He was a Fellow of the American College of Trial Lawyers. He was a member of the American and Sebastian County Bar Associations, the American Board of Trial Advocates, and served by appointment of the Arkansas Supreme Court on the Arkansas Code Revision Commission. He served our country as a member of the Arkansas Air National Guard from 19591965, and was activated by the United States Air Force in 1961-1962.
BECOME a Benefactor or Patron Member Your gift helps to support the mission and many aspects of the Association. You will receive recognition in the Spring 2018 issue of The Arkansas Lawyer magazine. You will receive recognition at the ArkBar Annual Meeting. Your support ensures we remain the quality association you’ve come to appreciate over the course of your career.
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