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YLS

In brief

A Periodic Newsletter of the Young Lawyers Section of the Arkansas Bar Association

Vol. 14 #3

Editor of Inbrief Tasha Sossamon Taylor Graphic Design Anna Hubbard

Young Lawyers Section Chair:  Brandon K. Moffitt Chair-Elect: Brian M. Clary Sec-Treas: Anne Hughes White Immediate Past Chair: Anthony W. Juneau Executive Council: District A: L. Matt Davis (2011) Brian R. Lester (2012) Vicki S. Vasser (2013) District B: Cory D. Childs (2011) Grant M. Cox (2012) Tasha Sossamon Taylor (2013) District C: Brian Cleary (2012) John Houseal (2011) Timothy R. Leonard (2013) At Large Representatives: Tessica Dooley (2013) Cliff McKinney (2011) Melissa N. Sawyer (2012) Law Student Representatives: University of Arkansas at Fayetteville School of Law: Malcolm Means UALR William H. Bowen School of Law: Kimberly JoAnne Eden

in this issue 2010 Annual Meeting Photos

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YLS News

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The Most Commonly Misunderstood Election Laws in Arkansas by Maggie Smith

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Book Review of Seth Godin’s “Linchpin: Are You Indespinsable?” by Melissa Sawyer

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Rise in Corporate Compliance Positions Provides Alternate Career Path for New Attorneys by Jennifer Sommer 7 YLS Column by Brandon K. Moffitt 9 Arkansas Bar Association Leadership Academy

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112th Annual Meeting June 9-12, 2010 Hot Springs YLS Party on the Patio, Afternoon Pool Parties and Receptions, Lounge & Learn

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YLS News Brandon K. Moffitt 2010-2011 Young Lawyers Section Chair

Hats Off As of July 21, 2010, Katherine Prescott, is now the associate university counsel for Arkansas State University. Womack, Landis, Phelps & McNeill, P.A. in Jonesboro announced the opening of its second location in the Regions Center, Suite 1737, in Little Rock. Baim, Gunti, Mouser, Havner & Worsham, PLC has opened an office in Little Rock at 212 Center St., Ste. 700. Camille EdmisonWilhelmi, the managing attorney for the Little Rock office, is practicing primarily in the areas of bankruptcy, divorce, child custody, and attorney-ad-litem. Stephanie Nichols and her husband, Mark, welcomed their first child into their family on June 17, 2010. Their new daughter, Grace Arabella, weighed 8 pounds, 1 ounce, and was 19 1/2 inches long.

Brandon Moffitt has been named chair of the Young Lawyers Section. Since graduating from the Bowen School of Law in 2006, Brandon co-founded the law firm Moffitt & Phillips, PLLC based in Little Rock. Moffitt & Phillips, PLLC is a litigation firm providing representation statewide in the areas of plaintiff’s personal injury, business law, real estate and eminent domain, as well as criminal defense. Brandon was elected to the Executive Counsel for the Young Lawyers Section in 2008, and has served on the Annual Meeting Committee, Technology Committee, Law School Committee, Long Term Planning Committee, and the Member Benefits Committee for the Association. Brandon was named Co-Outstanding Young Trial Lawyer for 2009 by the Arkansas Trial Lawyers Association, is actively involved in the Pulaski County Bar Association, and was recently named to the Board of the Pulaski County Bar Foundation. Brandon is licensed to practice before the courts of Arkansas and Tennessee.

If you have information on YLS Members who deserve a “Hat’s Off” or would like to submit ideas for articles, please contact the editor of “In Brief,” Tasha Taylor at tcsossamon@yahoo.com.

Congratulations to 2010-2011 YLS House of Delegates Members: Cecilia Ashcraft Phillip M. Brick Alan G. Bryan Suzanne Clark Charles E. Clawson, III Winston B. Collier Grant M. Cox C. Michael Daily Joel M. DiPippa Jason Earley Farrah L. Fielder Jennifer Williams Flinn Whitney Foster Teresa M. Franklin Matthew L. Fryar Hollie Greenway Shane A. Henry Jodie Lynn Hill Jonathan Drilling Jones Anthony W. Juneau Timothy R. Leonard George M. Matteson Emily Sprott McIllwain J. Cliff McKinney, II Wade T. Naramore Anthony W. Noblin

Mark your calendars Arkansas Bar Association Annual Meeting June 8-11, 2011 3

Kristin Pawlik John P. Perkins, III Brandon C. Robinson Gwendolyn L. Rucker Shivali Sharma Brock Showalter Patrick L. Spivey Tasha Taylor William J. Trentham Curtis J. Walker J. Adam Wells Anne Hughes White Troy L. Whitlow Victor D. Wright, III

YLS Board of Governors Members: Brandon K. Moffitt Chair of Young Lawyer’s Section Brock Showalter, Governor Gwendolyn L. Rucker, At Large Governor Zane A. Chrisman, Chair of CLE Committee


The Most Commonly Misunderstood Election Laws in Arkansas by Maggie Smith In my work with the State Board of Election Commissioners, I answer a lot of questions about Arkansas election laws. There are some pervasive myths that come up over and over again. Some of these are easy to dismiss, like the caller who insisted that the Navy was tampering with voting machines by sending secret programs to people’s cell phones. Others, however, sound reasonable enough that many people believe them. Here are six common myths about Arkansas elections. You might be surprised. 1. A person must present ID in order to vote. In Arkansas, a poll worker is required to ask every voter to show ID, so a lot of people assume that means they can’t vote without whipping out that driver’s license. In fact, only some voters are required to show ID in order to vote a regular ballot. Those voters are the ones who registered by mail and have never before voted in person, and are indicated on the list of voters generated for each polling site by the county clerk. If a voter is required to show ID but doesn’t provide it at the time he or she votes, a provisional ballot is issued and later reviewed by the county board of election commissioners to determine the voter’s eligibility. Additionally, a driver’s license isn’t the only form of ID that is accepted. A current utility bill, bank statement, or government document may be used, as long as it includes the voter’s name and address. So, if you are unable to find your driver’s license when asked at the polling site, don’t panic and run back to your car: it is likely that you may still vote on a regular ballot. 2. A person in Arkansas may vote on any combination of races in the primary and primary runoff elections. Consistently, every time a primary election rolls around, I get irate calls from voters who do not like being asked to choose the Democrat or Republican ballot. They don’t think it’s anybody’s business in which party primary they choose to vote. I also 4

YLS In brief

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get calls from people who are mad because they refused to specify a party ballot and were given the Nonpartisan Judicial ballot with very few contests on it. Additionally, some voters want to vote in the Republican primary for statewide or federal races, and in the Democratic primary for their local races, or vice versa. These voters don’t understand why they can’t select a different party for each contest, as long as they are not voting twice for the same office. The procedure in Arkansas law is clear, however. Each voter must specify whether she wants the Republican ballot, the Democratic ballot, or a ballot with only the Nonpartisan Judicial races. Each person may only vote one ballot. If a person receives a ballot and then realizes the contest she wanted to vote in is not on the ballot, she must alert a poll worker immediately in order to receive a different ballot. Once the ballot is cast, there is no procedure by which the voter can obtain an additional ballot. This is why it’s important to look at the sample ballots posted at each polling site to make sure you request the ballot you want. 3. A voter may write in the name of any candidate he or she wishes for any race on the ballot. We’ve probably all heard urban legends about Mickey Mouse being elected to an office by write in votes. Fortunately, that couldn’t happen in Arkansas unless Mickey Mouse had filed for the office as a write in candidate. Write in candidacy is intended to make sure every citizen has the ability to run for office, without the imposition of a filing fee or petition requirement. A write in candidate need only file his intent to run for the office of his choice within the appropriate filing period, confirm that he is eligible with an Affidavit of Eligibility, and agree to abide by relevant election laws by signing and submitting a Political Practices Pledge. Then, a blank will be placed on the ballot next to the appropriate contest so that the candidate’s supporters may write his name in. Names written on the ballot may only be counted

if they are the names of those who have filed as write in candidates. Misspellings, abbreviations, and minor errors are allowed, however, where the voter’s intent can be discerned. 4. A candidate may not campaign near a polling site or on public property. At a polling site, during voting hours, no one may do any electioneering within 100 feet of the polling site’s main entrance. Electioneering is generally defined as promotion of a candidate or issue on the ballot. While this may seem like a paltry limit on promoting a candidate near a polling site, it’s limited for good reason. This constitutes a content-based restriction on political speech in a public forum, and the United States Supreme Court has said that, while restrictions can be made in order to ensure a peaceful and orderly voting location and thus upholding the right to vote, the state must show that the regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end. In Burson v. Freeman, 504 U.S. 191 (1992), the Court upheld the constitutionality of the 100-foot limit. Since then, most states have chosen to regulate speech within the same distance. I also sometimes receive calls from people upset that a candidate is campaigning on the grounds of the county courthouse or state capitol. As I intimated in the previous paragraph, however, these locations are considered traditional public forums. A candidate’s use of the space cannot constitute an improper private use of public resources as long as all candidates, and members of the public, are equally free to be there. 5. In a polling site with both voting machines and paper ballots, a voter has a right to vote in either manner. In fact, there is no “right” to vote on your preferred medium, only a right to vote. Each county’s quorum court passed an ordinance designating a primary and secondary voting system for their elections. While some counties do allow voters to choose the method of


voting, many counties do not. In practical terms, a county must be able to plan for an election by predicting the number of ballots needed and the number of machines needed per polling site. If every voter could choose their preferred method on a whim, it would make this planning process much more difficult for the counties. The only exception is that a person with a disability may vote on a machine in order to cast his ballot unassisted, and it’s for this reason that every polling site is required to have at least one voting machine that is accessible to persons with disabilities. 6. One vote isn’t going to make a difference. By now, I’m sure many of you have heard about the sheriff’s race in Stone County, where the vote resulted in a tie. While we might expect a tie in small, special elections with only a handful of votes, this was not such a case. A total of 2,766 votes were cast in that race, and one more vote could have changed the outcome. But beyond cases where one vote literally makes a difference, it’s always the case that an aggregate of uncast votes could change the outcome of an election. In the recent primary elections, only 30% of the registered voters in this state cast votes in the May Primary, and only 16% cast votes in the June Primary Runoff. These figures don’t even take into account the potential eligible but unregistered voters who may be living in our state. I know it’s corny and it’s oft repeated, but voting really is a citizen’s chance to be heard and have a direct impact on his or her government. With the ample early voting opportunities and easily accessible absentee voting procedures now in place, there’s no excuse for a citizen to refrain from seeking out information about the candidates and casting an informed vote. For more information on voting laws in Arkansas, contact your county clerk, the office of the Secretary of State, or my office at the State Board of Election Commissioners.

Maggie Smith is the staff attorney for the Arkansas State Board of Election Commissioners. She loves hearing from others who are passionate about voters’ rights, and can be contacted at maggie. smith@sos.arkansas.gov.”

The Arkansas Traveler

COMING THIS FALL: We are developing a new section of the newsletter called the Arkansas Traveler. We are looking for your tips and reviews of the unique restaurants, hotels, B&Bs, hiking trails, entertainment venues, etc., that you have encountered while traveling around Arkansas. This will be a fun section where you can share your unique Arkansas finds with your peers (and we can all pretend like we are restaurant reviewers now when we dine out--admit it, you have always wanted to do that, too ;-) ). We will be rolling out this new section of the newsletter later this fall, but if you are interested in writing a short review (150 words or less) about a unique restaurant or any other cool place that stood out to you, please contact me and I’ll give you a deadline and other details. Contact Tasha Taylor at tcsossamon@yahoo.com.

2011 Mock Trial Competition Attorney volunteers are needed to coach participating high school teams around the state. Coaching is a wonderful way to give back to the community, develop business and reputation, and to instill in the community the good works provided by the state’s excellent legal community. If you would like more information on becoming a team coach in your area, please contact Rando Hicks at rhicks@arkbar.com. The Committee will pair those who volunteer with a participating high school team in their area. 5


Book Review Linchpin:

Arkansas Bar Center

Are You Indispensable? by Seth Godin (Penguin Group, 2010) 256 pages.

Book Review by Melissa Sawyer I heard about this book from my friends in public relations and advertising. While it is not a book about law per se, as a solo practitioner I am always looking for ways to improve my business and my ability to carry about the business side of my business. In Linchpin, Godin describes the history of the modern workforce in which offices are set up like factories with each person expecting to be a cog in a machine. Now, with computers and machines making most of the drudgery that humans are able to do obsolete, Godin points out that the best employers and workers are now the “linchpins.” Linchpins are the people who create art. Art, according to Seth Godin, is “the intentional act of using your humanity to create a change in another person.” Today, consumers are willing to pay more for a personal touch: an emotional connection in the products and services they use. The book goes on to explain the possible setbacks in a person’s quest to become a “linchpin” and provides examples of employees and business owners who are linchpins in a variety of settings. Although the book does occasionally use science and statistics, it is very user friendly.

Space available for: n Meetings n Receptions n Mediations n Arbitrations n Depositions n Visiting attorneys n Video Conferencing n Free for members

Melissa Sawyer is a solo practitioner practicing in Monticello, Arkansas.  She practices criminal trials, criminal appeals, civil rights cases, and family law.  She can be reached for questions or comments at melissa.sawyer@gmail.com or (870) 308-0413.

Become a fan! Join the Group! Arkbar Young Lawyers Section 66

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To reserve call 501-375-4606 or 800-609-5668


Practice Tip Rise in Corporate Compliance Positions Provides Alternate Career Path for New Attorneys by Jennifer Sommer

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aw students and new attorneys are experiencing first-hand the effects of a down economy — shortage of internships and clerkships, not to mention a lack of entry-level positions at firms across the country. Many recent graduates are turning away from traditional legal careers in favor of more non-traditional careers for attorneys; however, new attorneys won’t have to sacrifice everything they love about the law to find a sustainable legal career. Recently enacted major reform statutes and national newsworthy corporate misgivings have prompted an increase in the need for additional compliance staff at many businesses across the country. Such businesses, including large retailers, restaurant chains, and oil and gas companies are in a hiring frenzy to ramp up their compliance departments. Take, for example, the Consumer Product Safety Improvement Act of 2008 (CPSIA), which dramatically changed the way children’s products manufacturers do business. This comprehensive consumer safety reform now restricts certain chemical limits in children’s products, as well as requiring third-party testing and certification to ensure affected products are compliant with the new law. Because many manufacturers and retailers did not have programs established prior to enactment, several quickly started scouting talent on which to build effective compliance programs, not only to ensure compliance with the CPSIA, but with other laws that have been enacted by multiple states in response to the increased awareness to consumer product safety. The controversial health care reform bill that was passed earlier this year provides another example of where companies in many different industries (e.g., small businesses, insurance agencies, and health care facilities) are looking for professionals who can not only help them understand the law, but build programs to meet these requirements. Moreover, because some companies have learned that inactivity can leave them helpless or out of business, an increasing

number of companies are becoming more involved in administrative rulemaking to help educate regulators to what works and what does not, while still trying to achieve the same legislative intent and protect the public. Most affected companies take particular interest in people who have skill sets similar to fresh law school graduates. Well-developed legal research skills are a must, but many compliance departments seek employees who use logical thinking similar to law school, as well as those employees who can establish sound arguments to support adoption of a particular policy or position. In addition, outstanding oral and written communication skills are necessary when dealing with administrative and regulatory bodies, either in response to a violation, or when drafting alternative language for proposed rulemaking. The companies who have made news headlines for not following the law are now seeking professionals who can build or enhance their compliance programs, increasingly so as boards of directors are realizing that good-faith standards are ever-changing, and new amendments to the U.S. Sentencing Guidelines are forcing a shift in the way companies do business to keep their officers and executives out of trouble. Aside from the traditional risk-management strategies, three growth areas for corporate compliance are: (1) regulatory research programs; (2) legislative tracking and policy development programs; and (3) proactive administrative or regulatory agency interactions. Of course, having such programs established without an effective auditing function will not ensure

compliance, so companies are also looking for professionals who can review a policy, process, or program and determine whether it is achieving the regulatory intent. Some budding compliance hopefuls are going the extra step to become certified in their professions, either through a general program like the Society of Corporate Compliance and Ethics, or in a more specialized area, such as in healthcare through the Health Care Compliance Association. Such additional education can help a new compliance professional understand the ins and outs of their new career, as well as provide credibility and networking opportunities to learn from other similarly employed professionals. Furthermore, classes, seminars, and webinars frequently double as continuing legal education (CLE) credits, so it’s a twofor-one opportunity for licensed attorneys in mandatory CLE jurisdictions. Law students who will be graduating in the next year or two should discuss compliance careers with the career service departments at their schools to determine the best courses to take to become better situated for a career in compliance. In addition, students should seek internships or externships in corporate or non-profit compliance departments, which can serve as a valuable educational platform, as well as an excellent recruiting pool for a potential employer.

Jennifer Sommer is the director of regulatory affairs for optical and federal healthcare at Walmart Stores, Inc. She can be contacted at jennifer.sommer@wal-mart.com 7


C LE The Arkansas Bar Association Young Lawyers Section presents:

Bridging the Gap Filling the Gap Between Law School and Practice

October 7-8, 2010

• • • • • • • • • • • • • •

Thursday, October 7, 2010 Solo Practice Planning Ethical Advertising for Lawyers Fastcase- Online Legal Research Training Civil Litigation and General Practice The Courthouse: Interaction with the Judicial Staff Rule 502 Lawyer Client Privilege – Disclosure and Waiver Criminal Law Practice Friday, October 8, 2010 Federal Courts The Courthouse: Your First Trial Client Fees and Trust Accounts Announcements & Introductions Juvenile Law and Practice Family Law and Domestic Relations Practice Establishing Your Business: Choice of Entity, Insurance and Agreements

Program Planner Brandon K. Moffitt 12.25 CLE Credit Hours includes 2.0 Ethics Hours 8

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UALR Bowen School of Law Friday Courtroom 1201 McMath Avenue Exit I-30 at 9th Street Little Rock, AR


Young Lawyers Section Report

by Brandon K. Moffitt

Originally published in the Summer 2010 issue of The Arkansas Lawyer magazine. Reprinted with permission.

Abundance of Opportunities to Serve in YLS

As I embark on my year as Chair of the Arkansas Bar Young Lawyers Section (YLS), I am both grateful and honored that my colleagues chose me to lead this extraordinary organization for the upcoming year. I do not take this position lightly and I look forward to working towards my goal of providing young lawyers from all regions of our state an abundance of opportunities to become actively involved in the YLS. One of the initial items I would like to achieve as Chair is to establish two standing social events for the YLS. My hope is that we can have a statewide event each fall and spring that would allow young lawyers to come together to network, socialize, and most of all have some fun. Some initial ideas are to host a camping/hiking trip this fall and then a float trip next spring. Stay tuned for an announcement for the event this fall. Secondly, I urge you to become involved in this year’s YLS public service projects. One of the most significant achievements of the YLS over the last few years is the development and publication of 18 & Life to Go: A Legal Handbook for Young Arkansans. The publication aims to provide young Arkansans with a basic understanding of our legal system, as well as the answers to common legal questions. Our goal is to provide every Arkansas high-school senior with a copy of the publication. Currently the publication is available on our website (www.arkbar.com) and we are in the process of raising funds to print the publication for the upcoming school year. I would encourage you to download and review the publication. We would welcome your comments and any suggestions of new topics to include in the next edition. If you are interested in

volunteering to work on the publication or writing additional content, please contact me via email. A new project this year of the YLS will be reaching out to our local schools in an effort to educate students about our legal system. I want to encourage you to join the YLS in taking A Level Playing Field to the classroom. A Level Playing Field is a DVD program developed by the Arkansas Bar Association Law Related Education Committee that discusses the constitutional basis of the American judicial system and the four fundamental principles of the judicial system — the Rule of Law; Equal Justice under the Law; Fair, Impartial and Independent Judiciary; and the Jury System. The program contains excerpts from interviews with prominent Arkansas elected officials, judges, and attorneys including Governor Mike Beebe, Senator Dale Bumpers, Chief Justice Jim Hannah, Honorable Lavenski Smith, and Bobby McDaniel, among others. As lawyers, I feel we have a duty to educate the public about the legal system and A Level Playing Field is a great opportunity to reach out to our local communities. I hope that you would join the YLS on Constitution Day this fall in taking A Level Playing Field to classrooms across the state. There will be several additional public service opportunities announced later this year by the YLS. Please watch the YLS’s quarterly publication InBrief for details. Additionally, I would welcome suggestions of other public service projects by the membership. Next, I plan to host YLS Executive Council meetings across the State. My goal is to reach out to young lawyers in all areas of the State and provide an opportunity

for the membership to learn more about leadership opportunities within the Section, as well as the Bar Association. I want to encourage each member to consider running for a position on the Executive Council or volunteering to serve on one or more of our standing committees. Finally, I would like to significantly expand professional development programming geared towards young lawyers over the coming year. Today’s job market and other economic factors have placed many young lawyers in a different position than we were in five years ago. My hope is to offer some tailored programming that addresses issues such as opening a new law office, financial management, and advertising/business development for young lawyers. I would like to offer some topics that may be outside the scope of traditional CLE, but can be of significant use to you as a professional. Ultimately, I want to offer programming that interests you, as well as help you move forward in your legal career. In closing, I want you to know that the YLS has a place for you. If you are interested in becoming involved within the Section, I will find a place for you to contribute. I look forward to serving with you this year. P.S. I would be remiss if I did not mention my wonderful wife, Regan, in this article. Her unwavering support has allowed me to seek my professional goals, including serving in a leadership role within the Arkansas Bar Association. I am grateful for all she does and in the words of Winston Churchill, which are applicable here, “My most brilliant achievement was my ability to be able to persuade my wife to marry me.” For me, that was good lawyering. n 9


Leadership

Academy

The Next Level of Leadership

Who should apply? The Leadership Academy is looking for a diverse class of attorneys who have a proven record of leadership and are interested in taking their leadership to the next level Applications are available now, and are due by October 1, 2010. Twenty participants will be chosen by October 31, 2010. Tuition will cover room, board, and materials. The Association will be reaching out to as diverse a group of participants as possible from all areas of the state.

Tentative Schedule • Opening Retreat: January 13-15, 2011 at Degray State Park • Legislature and the Judiciary: March 8, 2011 in Little Rock • Community and Bar Leadership Retreat: April 8-9, 2011 at Mt. Magazine • Pro Bono and Graduation: June 9, 2011 at the Arkansas Bar Association Annual Meeting in Hot Springs

Inspirational Speakers Leadership Building Compelling Opportunities

Define your Leadership Style Identify Strengths & Overcome Weaknesses

Take it to the

vel e L t x e N in Leadership

For more information go to www.arkbar.com/pages/leadership academy.aspx or email cnewton@arkbar.com 10

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Arkansas Bar Association YLS Inbrief Summer 2010