VOL.32_NO.4_FALL 1997
-
Upload
arkansas-bar-association -
Category
Documents
-
view
238 -
download
0
description
Transcript of VOL.32_NO.4_FALL 1997
Unlimited Westlaw research forArkansas as low as $125':' per month!
·Otbft' restrichoIlS awl), ftlas s/lbfld to cJxlllge ullbollJ 11mKf)'ClJe is a 5tl'\la IlUl'k of Ires! rubhshing Company
Q 1997 Wesl Group 8-97A2-5/9·97 17S4Sbo11 1·509·211·3
Call: 1-800-762-5272Please prOVide ORDER NUMBER 754864
Arkansas Federal District Court Cases, USCA$ and related databasesfor an additional ·2S per month for one allomey, and an additional
30 per month for each additional anomey.Eren better, no mailer which PRO plan you decide on, you will
also receive other West exclusives like KeySearchinf and the KeyNumber service, tenns added in synopses and headnotes by oureditors, I\~N· (WESTlAW is alUral~) plain-English searching andall the other features that make WESTlAW the choice of legalresearch professionals.
Subscribe to WESTlAW PRO or PRO PLUS and your first 30 daysof WESThI\v charges will be waived. One-year subscription reqUired.Subscriber is responsible for Plan I PRO charges. Some restrictions apply.....
"WESTGROUP
Ioftc~Wh'rwy. Ckl,~ 80ardlnan CaIagtonlo~~ 1'ubl..I.1I'9. VVESTtA"..,.- ........ , f'I.bI.l"ng
'\'1.'111\"_0
PROPrftliclab/e Resmrr:b IAlline
Por & complete WLPRO ArWlau dMIbue listIng.ml~ us on w lnlemet aL:
http://www.westllroup.com/w!awlnro/wlpro/wlpro.htm
For the first time, solos and smallArkansas law finns of 2-9 allOmej~ canhal'e the research power of WESTlAI\"at one low montl111 fee.
With WESTlAW PRO~ (PredictableResearch Online), you get unlimited access to the complete lineupof Arkansas databases for only S12S per month for one anomey andjust 70 per month for each additional allomey.*
IVESTlAW PRO includes Arkansas Cases, Arkansas StatutesAnnotated, Arkan as Court Rules and Orders, Arkansas AllomeyGeneral Opinions, Arkansas Secretary of State Col]lOrate Records,Arkans,lS Workers' Compensation Administrative Decisions, and manyother Arkansas databases. What's more, ",th WESTlAW PROPLUS~ add federal databases like U.s Supreme CourtCases, U.S. Court of Appeals for the Eighth Circuit Cases,
VOLUME 32, NUMBER 4
PUBLISHERArkansas Bar Association
Phone: (501) 375-4606Fax: (501) 375-4901
Homepage: www.arkbar.comE-Mail [email protected] on en s
In Every IssuePRESIDENT'S REPORT, by Jack McNulty
A LITTLE GOOD NEWS, by Shannon Eversole
EXECUTIVE DIRECfOR'S REPORT, by 0011 HollingslVonh
LAW OFFICE TECHNOLOGY, by Lynn Faster
LAW, LITERATURE & LAUGHTER, by Judge Vic Fleming
CLE & ARKANSAS BAR ASSOCIATION CALENDAR
YOUNG LAWYERS SECfION REPORT, by SCOII Margan
COMMITTEE & SECfION NEWS
LAWYER DISCIPLINARY ACfIONS
IN MEMORIAM
CLASSIFIEO ADVERTISING/INOEX TO ADVERTISERS
ASSOCIATE EDITORSara lJJlldis
EDITORJAL BOARDGerard F. Glynn, Chair
Wiley A. BrantonThomas M. Carpenter
Stacey A. DeWittMorton GitelmanJames c. Graves
Martha L. LondaginThomas H. McGowan
AI SchayJacqueline S. Wright
OFFICERSPresident
Jack A. McNullyPresident-Elect
Robert M. Cearley. Jr.Immediate Past President
Harry Truman MooreSecretary -Treasurer
Daniel R. Cartel'Executive Council Chair
Jack DavisYoung Lawyers' Section Chair
Scotl MorganExecuti ve DirectorDon Hollingsworth
Assistant Executive DirectorJudith Gray
EXECUTIVE COUNCilJ. Ray Baxter
William M. BridgforthDaniel R. Carter
Robert M. Cearley, Jr.Thomas A. DailyJohn A.~Davis, III
Thomas F. Donaldson, Jr.Lynn M. Aynn
Dave Wisdom HarrodMichael E. Im'inLouis B. Jones. Jr.
Thomas D. LedbetterJack A. Mo'Julty
Michael W. MitchellHarry Truman Moore
R. Scott MorganBrian H. RatcliffStanley D. RaulsSteven T. ShultsJames D. SprottLynn Williams
17lfl Arkanslis Lnwyer (USPS 546-040) is publishedquarterly by the Arkansas Bar Association.Periodicals postage paid at Utile Rock, Arkansas.POSTMASTER: send address changes to TheArkllllsas Lnwyer, 400 West Markham, Little Rock,Arkansas 72201. Subscription price to non-members of the Arkansas Bar Association $25.00 peryear and to members $10.00 per year included inannual dues. Any opinion expresSed herein is thatof the author, and not necessarily that of theArkansas Bar Association or TIle Arkmlsas Lawyer.Contributions to TIle Arkansas Lnwyer are welcome and should be sent in two copies to EDITOR.TIlt Arkansas Lawyer, 400 West Markham. LittleRock, Arkansas mOl. All inquiries regardingadvertising should be senllo TIle Arkansas Lnuyerat the above address. Copyright 1997, ArkansasBar Association. All rights resef'\'ed.
On the Cover: "Woman withNurturing Hearts, •Jose Ortega,Inc.
,
A Watershed Year for Bankers:Arkansas' 1997 Banking Legislationby W. Christopher Barrier alld Johll S. Selig
Before Central High...Brewer v. Hoxie School Districlby Mort Gitelmall alld Bill Pellix
VOCALS 1982-1997:Joint Venture for Justiceby Jean Carter and Mary Ht!l1ry
Public Opinion Poll: How lhe PublicViews Female and Black Attorneysby Jllstice Robe,., L. BrowlI alld Sheila Campbell
Remarks of Judge Andree Layton Roafby Jlldge Alldree Laytall Roa!
Time For Changeby Dialle Schratz Holitik
Shielding Volunteers from TorI Liabilityby Frances Fendler Rosenzweig
[aLTA: What is it? What Does it Have To DoWilh My Clients' Money?by Lisa Meltall
II
16
20
22
24
30
34
40
34
589
153339424748
AT&T ProfitIh ,\ssOCi.1 t ionNc!lclln/1I1 (,/ltl/lIl1/I'l'd
This long distance service offer from yourassociation is so reliable that it's guaranteed.
The Arkansas Bar Association knows how impol1al1l UUSt is in a business relationship. that'swhy they're always looking for solid, reliable ways to do more for you. Like AT&T Profit By Association.
l1lis program was designed to benefit you. It offers an additional member-only discount on top
I
of AT&T's already competitive prices. And because you need everycall to get through, the AT&T long distance network gives each calla choice of up to 134 routes to irs destination. Which is why onlyAT&T guarantees that if your outbound long distance service ever
goes down, for any reason, it will be back in minutes. Not hours.With guaranteed long distance network reliability and on-time installation, AT&T offers you cer
tainty in an uncel1ain world.Give yourself the cel1ainty that only AT&T guarantees. Call 1 SOO 722-7756, ext. 1486, to sign up for
AT&T Profit By Association toclay.
XIm: For the life of your business."
limitations on guarantees' coverage and remedies applyCertarn restrictions apply. Call for details. C1997 AT&T
AT&T
President's Report
American Bar Association House of Delegatesby Jack McNulty
As President of the Arkansas BarAssociation, I have the pleasure and
responsibility of making hundreds ofappointments of our members toAssociation committees and taskforces. In the past, on occasion, theAssociation's President appoints amember to a State government committee or commission. I was recenLlyfaced with two unexpected appointments.
Traditionally, members of theArkansas Bar Association have electedone of OUf members lO be OUf delegatein the House of Delegates of theAmerican Bar Association. This delegate position is for a two year ternl. tothe Spring of 1996, Professor RobertWright was elected 10 a two year term
to expire after the ABA meeting inAugust 1998.
At the Annual Meeting of theAmerican Bar Association in August1997, Professor Wright concluded histerm as Chair of the American BarAssociation's Seclion on General
Practice, Solo and Small FirmPractitioners, and was elected by thatSection as its delegate to the House ofDelegates of the Association.Consequently, Professor Wrightresigned his position as delegate of theArkansas Bar Association, resulting ina vacancy in that position. Under ourConstitution this vacancy is to be filledby appointment of the President of theArkansas Bar Association, with theapproval of the Arkansas House ofDelegates, to serve the remainder of theunexpired tenn which ends in August
1998.At the same time this vacancy
occurred, our Association was certifiedby the American Bar Association for asecond delegate position, due to anincrease in the number of Licensedattorneys in Arkansas. Thus, ourAssociation had a second delegateposition to be filled by appointment of
the President, with the approval of theHouse of Delegates, to serve theremainder of the unexpired termwhich, in this case ends in August1999.
Faced with the appointment of twoof our members to be delegates to theHouse of Delegates of the AmericanBar Association, I considered the qualifications of a number of our leaderswho were interested in assuming thisresponsibility. As far as I could determine, there had never been a situationwhen the President of the Arkansas BarAssociation was called upon to appointone, much less two, delegates andobviously we have many qualifiedmembers who would do a fine job.
After much' consideration, I electedto appoint Harry Truman Moore to fillthe unexpired term of the delegateposition which had been occupied byProfessor Wright, which will expire inAugust 1998, and CarolynWitherspoon to fill the unexpired tennof the new delegate position, whichwill expire in August 1999. BothCarolyn and H.T. are past presidents ofour Association. In fact, they are our1110st immediate past presidents. Theyhave both been outstanding leaders ofour Association, and they have bothalso been active in the American BarAssociation. On October 18th ourHouse of Delegates approved theseappointments.
Another member of our Associationis Bill Allen, who is also a delegate tothe House of Delegates of theAmerican Bar Association. This delegate position is one which is elected bythe members of the American BarAssociation who practice in Arkansas.
There is another Arkansan in thismix. Phil Anderson is the currentPresident-Elect of the American BarAssociation, and will become ABAPresident at the end of the ABA Houseof Delegates meeting in August 1998.
Thus thereare now fivemembers ofour Asso-ciation whoserve in prominent roles inthe House ofDelegates of the American BarAssociation. We are, indeed, well represented, both in numbers and personages.Advisory Ethics Opinions
One of the benefits of membershipof our Association which is oflen overlooked is the Advisory EthicsOpinions. Under appropriate circumstances, advisory ethics opinions areissued by the Association'sProfessional Ethics and GrievancesCommittee, which is chaired byProfessor Howard Brill.
Advisory ethics opinions will onlybe issued in response to a wriuenrequest from a licensed allomey who isa member of this Association. At theAugust meeting of our ExecutiveCouncil, the issuance of these opinionswas restricted to members of theArkansas Bar Association. This actionwas taken in response to the argumentthai it is unfair for a nonmember to
enjoy such a benefit, while not payingmembership dues, particularly sincethese dues support a variety of publicservices for the attorneys and citizensof our state.
Requests for advisory opinions mustbe in writing and must be submitted to
the Association's Executive Director,along with a check for $50.00 to coverbasic expenses. There are 4 requirements as wel1: I )requests must relateto the prospective conduct only; 2)they must contain a complete statementof all facts upon which the opinion isrequested as well as a concise question
See "Presidelllt's Report"page 4/
A Little Good News
1997 River Valley Volunteer LawFirm of the Yearby Shalllloll Eversole
VAP is a joint venture of WesternArkansas Legal Serviees and theSebastian and Crawford County BarAssociations. VAP was established in1989 to provide pro bono legal assis-
tance in civil cases to indigentpersons living in Sebastian
____ and Crawford Counties.The project currently has
126 volunteer anomeys fromthe two county area. andbegan as the 12th JudicialDistrict Volunteer AttorneyProject. serving Sebastianand Crawford Counties.Because Crawford Countyhas now become the 21 stJudicial District, the VAPAdvisory Commillee voted tochange the project name toRiver Valley VolunteerAttorney Project in order to
recognize the panicipation ofboth judicial districts. VAP has beencoordinated by Shannon Eversole since1992.•:.
first firm to be recognized by theVolunteer Anomey Project. In the past,the award has been presented to individual attorneys. However, this year,the VAP Advisory Comminee selected
the Daily & Woods firm 10 be the recipient of the award because of the significant amount of pro bono work provided by firm members.
Lift to Right: Ray Fulmer, VAP Committee Chllinllflll, Rob"!Bishop, aud Mark Moll, President, SttbflS/;mr County BarAssociation.
Mission: Volunteer Allorney Projectis a joi", \'ellfure of Wesrern ArkansasLegal Services Gnd 'lte Sebastian andCr{1H1ord County Bar Associariolls.VA? was established ill /989 (O providepro bono legal assiswnce in ........----ci\'i1 cases 10 indigem personsliving lIJ Sebastian andCrawford Coumies.
Member al10rneys handle amaximum of two (2) pro bonocases per year, or contribute$/50 annually. which is "sed 10assist YAP in the represenw1ion of poor persons inSebastion Cral\1ord ColtJ11ies.
Mr. Robert Bishop acceptsthe "1997 River ValleyVolunteer Law Firm of theYear" award on behalf of hislaw firm, Daily & Woods ofFort Smith. The award waspresented by Ray Fulmer.Chairman of the Volunteer AnomeyProject. at the first meeting of theSebastian County Bar Association.
The Daily & Woods Law Fim, is the
MARIE SCHOENFELDT, Paralegal and Administrative Assistant with the Firm of Evans, Farrar,ReiSt Rowe & Nicolosi of Hot Springs, has receivedthe Award of Excellence from the NationalAssociation of Legal Secretaries for 1997. Mrs.Schoenfeld was interv iewed and selected to receivethis honor at the Annual Forum of the Associationin Boston on July 27, 1997. This competition isbased on years of experience in the legal profession,association achievements. professional activitiesand legal education.":·
BIRTHIlAY GREETINGS GO TO:
Relired Chancellor RoyceWeisenberger, who served in Pulaski,Jefferson, Garland and Union countiesfor 20 years, will be celebrating his
90th birthday December 13, 1997. Thecelebration will take place from noonto 3:00 p.m. at the Western SizzlinRestauranr in Hope. Arkansas.•:..
LETTERS WELCOMEThe Arkansas, Lawyer welcomes reader comments - letters to the editor andany "good news." Leners should beno long~r than 250 words.Anonymous lellers will not be published. The editors reserve the right toedit leners for style, length and continuity. Advenising rates and infonnation are available upon request.Leners, inquiries and advertising maybe sent to:
'. Adrienne Brietzke, EditorThe Arkansas Lawyer400 Wesl Markham
Linle Rock, AR 7220 I501/375-4606 or 800/609-5668
or fax correspondence to501-375-4901
T~ \rtmlll.l~ltr rlllilli
Executive Director's Report
Membership Dues Structureby DOli Hollingsworth
35.00
35.00
10.00
$150.00
90.00
35.00
7500
35.00
Current Annual Dues
Admitted to practice more
than 10 years
Admitted to practice 4 to 10 years
Admitted to practice 3 years or less
Appellate or trial judge
Member residing outside Arkansas
Member on active duty
in U.S. Military
Retired Status
Law Student Section
olTImcnding afair system ofdues for ourmembers.Further, TaskForce members seem toFavor a newsystem whichwiLl be income-neutraloverall. In other words, there wiLl not beany intentional increase in the totalamount of dues income collected undera new structure. (There is also the possibility that a new structure coulddecrease dues-income initially, but withthe expectation thaL the structure willmean a larger membership for theAssociation in the future.)
Approximately 72% of licensedattorneys residing in Arkansas belongto our Association. While this is a goodpercentage for a voluntary st.ate barassociation, we can and need to do better. It is important to the future health ofthe legal profession in Arkansas that allattorneys in the state participate in professional and public service activities,and by ext.ension, participate in ourAssociation. But to significantlyincrease the percentage of attorneyswho belong to our Association, andenjoy the many benefits it offers, wemust first be able to offer a fair duesrequirement and continue to offer everbetter services to our members.•:.
the one implemented by the TennesseeBar Association two years ago. It's central feature is a base dues rate, whichabout 70% of their members pay. Theremaining 30% of members pay a lesser rate based upon their law-relat.edincome. There are 4 to 5 income rangeswith different dues rates, and thosemembers who selecL this method ofdetermining their dues "check off' theircorresponding income range. Privacy isassured with only the MembershipDirector and Executive Director havingaccess to an individual member'scheck-off.
Tennessee has reported that it ispleased with this new system, and theyview it as fairer and less complicated.They still offer special dues rates forsuch categories as out-oF-state membersand retired members.
Our Task Force has preliminarilyvoted to retain the Association's freedues for first year attorneys along withsome version of a retired member special dues. Arkansas is somewhatunique in that we have both a senior andretired category. It appears likely theTask Force wiLl recommend that theAssociation maintain a special duesrate for out-of-state members, butincrease the current rate of $35.
Our current structure has 9 differentdues rales. We do not have a specialdues rate for government attorneys,which is one of severaJ groups wherewe have below average participation. Ifour Association does not adopt a duesstructure simi.lar to Tennessee's, consideration may be given to more specialdues categories.
Please note lhat the shortcomings ofour dues structure have been recognized for a number of years. Some ofthe roadblocks to refornling it haveincluded the difficulty of reconcilingthe variety of special circumstances andthe difficulty of maximizing fairnessamong all members. OF course, there isalso lhe inherent problem of projectingthe economic impact of a new structureon the Association's annual income.
The Task Force is committed to rec-
The structure of our Association'smembership dues has evolved overmany years. Because of the structure'slack of Fairness to some categories ofattorneys as well as the desire to avoidnumerous special dues categories, theHouse of Delegate established a TaskForce to study the dues structure.
The Task Force may make its recommendations to the Executive Council atthe December 6 meeting in Pine Bluff.The House of Delegates will have toapprove any changes since they wouldamend the Association by-laws. TheHouse will next meet on January 24 inconjunction with the mid-winter meeting in Memphis.
The Task Force is composed of 18Association members who are representative of the legal profession inArkansas, and reflect its diversity.They have examined the dues structuresof other state bar associations and haveidentified the strengths and weaknessesof our structure. The following aresome examples of the issues beingstudied:
I. The cornerstone of the dues structure is the number of years of practice.Is this still a relevant or fair basis fordetermination of dues?
2. Are the special dues rates andexemptions still justified?
3. Does the dues structure significanLly impact on membership participation by certain categories of attorneys(e.g. government attorneys).
4. How should the Associationaddress the problem of the increasingnumbers of senior and retired memberswho pay little or no dues and theincreasing trend of less participation byyounger atlomeys?
5. Do the dues jumps of the currentstructure (from $35 to $90 at 4th year,to $150 at 10th year) negatively affectmember retention because of the size ofthe jump, or the perception engendered? Some attorneys have complained that their dues increased whiletheir income was the same or lower.
As of mid-OclOber, the Task Force isconsidering a dues structure similar to
fall 1l9i The Mlmas 1,"'Jer ;
•• • •••••
UCED COST LEGI
NTS
The cornerstone of an attorney's professional
ism is up-to-date information. The Arkansas
Bar Association provides the most comprehen
sive statewide CLE program, and members
pay reduced tuition! Over 20 CLE Seminars are
produced annually.
Annual Meeting, Hot Springs - June 1998. For
CLE, for spouses, for kids, for friends.
Best of CLE, Little Rock - June 1998.
TIp Irlma! I,alllrr l'a1l199i
You are well-represented on legislative issues
affecting the profession and legal system. The
Association's full time lobbyist represents its
members' interests in the Legislature.
S4-=Call Rebsamen at 501-664-8791 for professionalliability (5% discount for members) and mem
ber group rates for medical, accident, disabilityand term life.
IN THE ARKANSAS BAR ASSOCIATION
ILE
• The Arkansas Lawyer• The NewsBulletin• Legislative Summary From the Hill• The Arkansas Law Review• The UALR Law JournalBrochures on Law-Related Topics are available
for members to share with clients or civic
groups.
AVIS - for discounts call 800-331-1212 and give
them this number, B-314500.
UPS gives members discounts and quickresponse time. Call 800-325-7000.
Call 501-661-5853 or 680-5029 for discounts on
services and equipment.
CAR
PUBLIC
I:.'~::: "" , •• , .' I ~ _
•M
AT
An arrangement between the Arkansas Bar
Association and AT&T provides members with
discounts on long distance, 800 service, fax and
even residential calls.
Call 800-722-7756, ext. 1486.
MEMBERS RECEIVE A
SPECIAL DISCOUNT
Ten practice handbooks on CD-ROM from
LOIS and in print from this Association. The
Handling Appeals in Arkansas was just pub
lished, and an updated version of the Arkansas
Form Book will be available later in 1997. Call
the Association at 501-375-4606 for print ver
sion or call LOIS at 1-800-364-2512 for CD
ROM. Statutes of Limitations Handbook (June
1997) - Free to Members Only
The MBNA Platinum Plus MasterCard
includes a card with the Arkansas Bar
Association logo, no annual fee, miles plus
option, a low APR, and travel services. Call
800-847-7378.
This Association has endorsed the American
Bar Association's program. It offers options,
stability, and comprehensive services.
Call 800-826-8901.
L SYSTEM
The Arkansas Bar Association has historically
worked to secure adequate funding of the court
system, to revise outdated laws, and to provide
needed legal information to the public.
Association members do this through the leg
islative program, Sections/Committees, Mock
Trial Program, Juveniles for Justice, Young
Lawyers Section's projects, and special studies.
rlll199i TIe "rholl! Lall}er
Law Office Technology
www.ark.org:The Information Network of Arkansasby Lynn Fosler
records, corporal ion records andU.CC filing records on the Internet.Some of this information is already inelectronic fann and will be available inthe next few momhs. Information thatis not electronic must be converted,which takes time, but rNA is workingwith agencies 10 gel this process underway.
INA is "fee-funded" and works 10
provide heavily used, "value-added"infom131ion for a nominal charge, to besel by the Board. However, much of ilsinformation will be available for free.Agencies will retain ownership andcontrol of their data, and nOlhing willbe made available that would violatethe Arkansas Freedom of InfonnationAct.
Some of the legal information thatINA would like to make available 10 Ihepublic includes recent cases, theArkansas code, and agency rules andregulations. INA is not a competitorwith vendors such as LOIS, LEXIS orWESTLAW; it does not provide powerful, sophisticated search engines. But itdoes plan to make available easilyaccessible, free or low-cost information. In slales with similar agencies,I A's counterparts are becominginvolved in the move toward electronicfiling of court documents.
I recommend you visit the site, atwww.ark.org. Right now there areIUlks 10 Arkansas stale agencies (anolher lask of INA is to help agenciesdevelop their Intemel sites). And keepan eye on www.ark.org. It wiU growinto an important infonnation providerduring the nexi few mOl;ths. If youhave suggestions or questions, e-mailthem 10 [email protected], or call 501-3248900.•:.Lynn Fosler is Ihe Associate Dean forAcademic Affairs alld Professor ofUIWat Ihe UALR School of Law.
TM
users of state information: countyclerks, libraries, anomeys, banks, andaccountams. I was the original representative of the Arkansas BarAssociation on the rNA, but ProfessorJohn Watkins of the UAF School ofLaw lOok my place in early 1997.Network Manager for INA is JosephNemelka, who has a strong computerbackground and is also an anomey.
The INA appeared on the Intemet onAugust 22. II is currently working wilhslate agencies such as the Departmentof Finance and Administration and theSecretary of State to provide heavilyused information such as drivers license
(800) 937 -2938http://www.landtechdata.com
LANDTECH DATA CORPORATION1402 Royal Palm Beach Blvd., Building 200
Royal Palm Beach, FL 33411
REAL ESTATE SETTLEMENT SYSTEM"The Nation sMost Widely Used"
Now Available For Windows and DOSv' HUD 1Automatic Calculationsv' Checks & Escrow Accou nti ngv' Word Processor - Spell Checkv' Policies & Commitmentsv' Deeds & Mortgagesv' Data Base Reporti ngv' On-site Training Availablev' l099S Reporti ngv' Regulation ZAPR'sv'Aggregate Escrow
$1,495.00
Whal is the Information Network ofArkansas? It is a public instrumentaliIy established by the 1995 GeneralAssembly, wilh the charge of providingand improving electronic public accessto public state information. Theenabling act was modeled after Ihat ofKansas, whose information networkhas been copied by several other Slates,including Nebraska, Indiana, Georgiaand Indiana.
The Informal ion Network ofArkansas (INA) board is chaired bySecretary of tate Sharon Priest.Members are drawn fTom state agenciesand groups thai typically are. heavy
S fbI Ir~mal La\\jrr I'all I!9i
Law, Literature & Laughter
"Dear Judge Fleming"Kids Comment on Campus Court
Copyrighr /997 By Judge Vic Fleming
"Dear Judge Fleming, Hello, howare you? I am fine. I wanted to write totell you what I learned from your program," the sixth grader wrote. "Ilearned that even if you drink just a little bit (and drive), you can still hurtsomeone."
The letter was one of over 100 that Ireceived in the wake of implementing acreative and dynamic program earlierthis year. In "Campus COLIn I CriticalChoices," I literally take the courtroominto schools for real cases. The casesare then followed by interactive lecture,using video vignettes showing consequences of unwise choices.
"Even a smart kid can make a foolish choice." That's the motto of Troy,Michigan, District Judge Michael A.Martone, who founded the program,christening it "Courts in the School /Critical Life Choices." (My court staffshortened the title to what they believedwas a "catchier" title.) Judge Martonewas featured on the NBC "Today"show in September 1996.
By and large the sixth through tenthgraders to whom this program has beenpresented in Little Rock are bright,honest and delightful. But they readilyadmit that they engage in some activities for no particular reason and "withoul thinking," leI alone talking to oneanother about potential negative consequences. The main purpose of the program is to get kids to think before theyact and sometime talking causes thinking (you may quote me on that).
"I learned that before you do something wrong, think it over (and) that ifsomeone passes out on the floorbecause he or she had too many todrink, you take them to the emergencyroom to get checked out by a doctor,"another sixth grader wrote.
Here is how the program works. Iselect youthful looking defendants inmy court who have already been foundguilty of an offense that the kids canidentify with or about which they needinformation. The kids all identify withOWl because they hear about it all thetime. They all need infomlation about
suspended driver's license and noinsurance charges because these itemsare seldom discussed.
The chosen defendants are offeredthe option of being sentenced in frontof a school crowd. They are told theywill not be dealt with more harshly inthat forum. Indeed, they are told thatthey will be given credit for somedegree of community service for theirwillingness to participate. They reportto the school library or auditorium forthe sent.encing phase of their case.
Court is opened the same as it isdowntown. The audience is told thatthey will not go to the principal's officeif they act out, but rather will becharged with contempt and tried later inthe week downtown. And, if foundguilty, will have their next couple ofweekends planned by my probationstaff.
The defendants then make theirstatements for leniency. They have beenencouraged to tell what they havelearned from their experience in "t.hesystem." The defendants are then sentenced, and at least one of them is takento jail from the school. At that point youcan usually hear a pin drop on a carpeted !loor.
A ninth grader's impression of thiswas expressed like this: uThe reality ofseeing someone handcuffed and sent tojail is about as real as it comes andfrightening for a young person to thinkabout. Hopefully, the fear will changesome people's minds." Another wrote,"It gives you an 'in your face' check onhow life really is."
Campus Court is thell recessed andthe Critical Choices lecture begins. It isa 30-minute presentation designed toget the kids to teach themselves whatthey ought to be talking about beforeembarking on a certain course of conducl. At strategic points in the programI tum on the TV and show video clips.
One is a news story about anArkansas high school girl being thrownfrom the truck in which she was a passenger at 3 a.m., her boyfriend havingfallen asleep at the wheel while driving
home from the prom. Another capsulesa Michigan case in which an intoxicated man drove the wrong wayan anInterstate, killing three young childrenand their mother and then being convicted of manslaughter and sentencedto 22 years in jail.
Other vignettes also show conse·quences of "critical choices": a 22 yearold speaking from a Delaware prisoncell, a 14 year-old missing his sister, an18 year-old maimed and crippled by adrunk drivcr. (As this column goes toprint, I am updating our video library toinclude the North Carolina case wherestudents were convicted of manslaughter after pulling up stop signs alld theLSU student who recently died of aleohoi poisoning.)
By the end of the lecture, the kidsare tclling me what risk analysis is andwhal topics and concerns they shouldbe discussing among themselves beforeengaging in many of the activities thattheir friends are already engaging in.One ninth grade boy wrote, "I feel youpersonally reached me because I didnot know the consequences for OWl·not that I drink! But now I won't eventhink about it. Just looking at those people gave me a feeling that 1never wantto be in court for anything, so,
"Nay ay. no no,You won't see me, Joe!"And a ninth grade girl wrote.
"Though some kids in a year or twomay make the decision of drinking anddriving, hopefully one person's mindmay change because of your presentation."
I am available to any judge in thisstate to come demonstrate the ease withwhich this program can be established.It costs practically nothing and itencroaches on the judge's time for justa few hours per year. I choose to thinkit is better for the kids to be talkingabout negative consequences on thefront end, as this might lead to lessweeping about them on the tail end.
And who knows? Someone's mindmight be changed, or someone's lifesaved as a result of that talking.•:.
1',1I191i nr ,\rt~lslll,aw!rr
WHEN YOU THINK OF THE GREATARKANSAS LAWYERSOF THE PAST 100 YEARS...
•:. UM. Rose, the first President of the Arkansas BarAssociation .:. General John Patrick Clayborn, the greatcivil war commander .:. Edward L. Wright, the AmericanBar President who was responsible for revamping theentire code of judicial responsibility to make it applicable to modern practice and the rights of the client .:. JoeBarrett and his work on the VCC .:. Henry Woods, andcomparative fault .:. Harry Meeks, author of theArkansas Probate Code .:. Ruby Hurley, a lifelong advocate for her clients despite a handicap .:. Robert A. Leflar,the great legal educator .:. Wiley Branton, Sr. and his civilrights contributions, these are some of the names wethink of...
WHAT LAWYERS COME TO YOUR MIND?HELP US PLAN.
We need to know who or what you know.Jot down your stories or names and send them to us forpossible inclusion in our 1998 Centennial Celebration.
r------------------------------------------------,IYour suggestions:
Please send your suggestions: names to be recognized, stories, anecdotes, and any interesting facts frOIll the last 100 years toAdrienne Brietzke, The Arkansas Lawyer, 400 West Markham, Little Rock, AR 72201
or FAX 501-375-4901 for possible inclusion in our centennial celebration_L ~
AWATERSHED YEARFOR BANKERS:Arkansas' 1997 Banking LegislationBy W. Christopher Barrier and John S. Selig
This is the second of two "ArkansasLawyer" articles oLltlining the majorchanges in Arkansas banking laws adopted by the 1997 General Assembly. Theftrstarticle, which appeared ill {he Summer1997 isslle, dealt with the ArkansasBanking Code of 1997 (Act 89 of 1997).
Clearly, the Arkansas Banking Code of1997 (the Code), the subject of our earlier article, is a very big deal for Arkansasbankers. However, the practical impact ofcompanion legislalion--on branching,trust institutions and sales of insurancemay be jusl as profound for lheir businessand their customers.
BRANCHING OUTPrior lO the end of the 1997 regular ses
sion, the Code was amended by ACl 408,lhe Arkansas Interstate Banking andBranching Act ("lhe Branching Act"),which is Arkansas response to the federalinterstate branching legislation referred togenerally as the Riegle-Neal Act, whichpermits bank branching and mergersacross state lines.
The Riegle-Neal Act gave every state achoice of four options regarding interstatebranching:
I. Opt-Out - Opt out of the Riegle-NealACl altogelher and prohibil interstatebranching into and out of the state;
2. Merger - Allow interstate branchingby mergers of banks located in differentSlates;
3. De Novo - Allow interslate branching lhrough newly-formed branches; or
4. Acquisition - Allow interstatebranching by acquisilion of existingbranches.
The Branching Act penn its interstat.ebranching only by merger, the secondoption. It became effeclive as of June I,1997. Applications filed before that effective date are subject to prior law governing
branching, even if approved after thateffective date.
Currenlly, a slate bank may (I) engagein an interstate merger transaction inwhich it will be the resulting bankafler application and approval by theBanking Board, wilh the concurrenceof the Bank Commissioner, and (ii)thereafter, continue to operate branchesof the merged banks in the other states.
An out-of-slate bank may (i) engage inan interstate merger transaction with astate bank in which the oUl-of-state bank isthe resulting bank and (ii) lhereafler, operate branches in Arkansas at the same locations which the state bank could haveoperated branches had the merger notoccurred.
A Slale bank may nOl establish a denovo interstate branch or acquire an interstate branch in another state, other thanthrough an interstate merger transactioll.The same section of the Branching Actalso prohibits an out-of-state bank fromestablishing a de "ovo interstate branch oracquiring an interstate branch in Arkansas,other than through an int.erstat.e mergertransaction.
OUl-of-state banks and Arkansas bankswhich are proposing to engage in interstate merger transactions must give certainnotices, file copies of federal applicationsand meet ot.her applicable requirements ofthe Code.
OUl-of-stale slale-chartered banks withbranches in Arkansas may offer any service which a Slale bank could offer. Slalebanks with branches in anot.her state mayoffer the same services through lhosebranches which banks may offer in theother state, subjecl lO the aUlhority of theCommissioner to limit the exercise of anypower which is not granled to a state bankby the Code. After an out-of-stale bankhas consummated an interstate mergertransaction with an Arkansas bank, the
au t
of-stalebank is authorized (0 establish newbranches or limited purpose offices at anylocation where the Arkansas bank couldhave est.ablished branches or limited purpose offices had the merger not occurred.
tn addition, the Branching Act modifiesthe rules with reference to mergers of statebanks into national banks, and vice versa,and savings and loans into banks 10 beconsistent with the brave new bankingworld broughl into being by the RiegleNeal Act.
AFTER THE MERGERAfter the consummation of a merger
pursuant 10 an application filed under theCode, whether interstate or intrastate, thesurvivor bank may establish branches atany location where any bank which wasinvolved in the merger could have established branches had the merger notoccurred, with the same branching rightsafter a merger as the Riegle-Neal Actgrants to the resulting bank after an int.erstate merger transaction. Core bankingactivities (receiving deposits, payingchecks or lending money) must take placeal the main office or full service branches.
see "Baflks"page 12
fall199i ne .lrkm311,31l)er II
"Banks"on-core banking activities may be con
ducted at any location within the state ofArkansas at a limited purpose office.
A state bank may open a limited purpose office. after giving the Commissionernotice of the location. ownership. activi·ties to be conducted. cost and other infor·mation. if any. requested by theCommissioner. The separation of theactivities into core banking and non-corebanking and the geographic expansion ofthe non·core banking locations is intendedto provide state banks wi(h the sameauthority which the Comptroller of theCurrency has granted 10 national banksthrough interpretive rulings.
Any state bank may now locateConsumer Bank CommunicationsTerminals ("CB Ts") at any locationwithin the state of Arkansas as well as anylocation in one or more other states if per·milled by the law of the other states. Thisrevision establishes a regulatory structure.
to the extent possible. for CBCTs operatedby state banks and CBCTs in Arkansasoperated by out-of-state state-chaneredbanks consistent with (he additionalauthority granted to national banks underthe Economic Growth and RegulalOryPaperwork Reduction Act of 1996 asenacted by Congress and signed by thePresident on September 30, 1996.
Banks chartered by other states(whether or not such bank has branches inArkansas or is otherwise doing business inArkansas) may also locate CBCTs withinthe state of Arkansas. upon giving therequired notice. Interconnected CBCTs.funds payment systems and computer systems are no longer subject to geographiclimitations.
The Commissioner may examine.assess fees. and require repons from outof-state banks with branches in Arkansas.and may share employees, infom13tioll,examinations and other duties with banksupervisors from other stat.es involving
state banks wit.h branches in anot.her stateand out-of-state banks with branches inArkansas. The Commissioner generallyhas enforcement authority over out-ofstatc banks with branches in Arkansas. asto their Arkansas activities.
The Commissioner, with the approvalof the Board. is given authority to issueregulations to implement the provisions ofthe statutes.
An out·of-state bank which has previously engaged in an interstare mergertransaction as a result of which it hasbranches in Arkansas must give a thiny(30) day notice prior to the consummationof any transaction involving a change incontrol of the bank or any bank holdingcompany controlling the bank.
Out-of-state banks which are the resulting banks of an interstate merger transac·tion with an Arkansas bank must apply fora cenific3te of authority to do business in
see "Banks"page 13
not choose the best?
NiqI:d by a company with 125 years of continuous service.
Coverage for the next millennium.
Introducing !he industry's best new policy.
~t~l"[.~T,p'
~~~ 7"".. J.
187; **JL** ~;997~ ~~•.0
~ * ~...;",. ,,~~II ~~'
"'tf.l,\'!t,\ll.\l't:
Legal Professional Liability Division800-299-4331
"Banks"the state of Arkansas. The out-of-statebank must also make and keep current certain informational filings with theCommissioner.
The 1997 amendments to the RiegleNeal Act make it clear that the Arkansasbranches of out-of-stale banks with statecharters only will be subject to Arkansaslaws, basically to the same extent as if theywere branches of national banks.
THE ARKANSAS TRUSTINSTITUTIONS ACT
The Code basically dealt only with trustactivities by banks or their subsidiaries,and deleted any reference to independenttrust companies. However, Act 940 of1997, passed late in the session, (theArkansas Trust Institutions Act) nowexpressly authorizes such entities and setsout a comprehensive regulatory framework for trust institutions. (There are infact two such trust companies acting inArkansas, and Act 940 directs them tobecome regular business corporations,banks or the new statutory trust company.)
Actually, there are two kinds of trustcompanies pennitted under the ArkansasTrust Institutions Act, private and publictrust companies. But private trust companies are defined as those which do notengage in the trust business with the general public. To figure out who is not amember of that general public requiresthat you haul out your tables of consanguinity-your greal aunt adine is probably not included, but your fourth cousinRalph is-which is probably not worththe trouble for most practitioners, even ifprivate trust companies have the advantageof being largely unregulated private investment vehicles.
Public trust companies, on the otherhand, have capital requirements, and general regulations similar to banks. Theyexercise powers as fiduciaries, powerswhich, prior to the effective date of theArkansas Trust Institutions Act, could beexercised only by state trust companies,state and national banks, federal and statesavings and loans associations with specific trust authorization, subsidiary trustcompanies, and duly licensed out-of-statebanks and trust companies.
However, remember that these publictrust companies are not banks, becausethey cannot do both a general deposit business and make bank-type loans. They will
also avoid some regulations applicable tobanks, such as those federaJ statutes governing bank holding companies and statelaw restrictions on branching.
They can make loans as investments. Apublic trust company may merge with astale bank or with another business entity,to the same extent an Arkansas businesscorporation can, subject to review andapproval by the Arkansas BankCommissioner.
Along with the traditional fiduciarieslisted previously, public trust companiesmay delegate their investment. management and administrative functions (provided they select that delegate with reasonable care, make their scope of authorityclear, and periodically review their activities). The delegate may in some instancesbe an affiliated entity.
Actually, Act 940 deals with more thanjust trust companies: after years of unsuccessful effons to adopt the prudentinvestor rule as part of the UnifonnProbate Code, the rule now is adopted infull in the Arkansas Trust Institutions Act.Act 940 applies, not only 10 trusts and trustrelationships created or entered into afterits effective date: it applies to decisions oractions made or taken by trustees of existing trusts after its effective date.
BANK INSURANCE SALESHistorically, banking laws have given
banks some limited authority to sell insurance themselves on their premises, but theadditional restrictions in insurance licensing laws have made that authority difficultto exercise. Banks specifically have 1101
been able to obtain licenses to sell insurance (other than to sell credit life and similar coverage).
This tension between the bankingindustry and insurance agents has produced protracted litigation, including twocases recently decided by thc UnitedStates Supreme Court. The Court's decision in the VALle case holds that fixed andvariable annuity products are not insurance products, when sold by nationalbanks, and, hence, may be sold at any banklocation. The Barnell decision announcedthat state insurance laws (which wouldinclude Arkansas and those of manySlates) could not unduly restricI a nationalbank's ability 10 sell insurance in places ofless than 5,000 people.
In November 1996, the Comptroller ofthe Currency granted First Union National
Bank authority to sell insurance through·out its home state and nationwide frombranches in places of less than 5,000 people, subject 10 certain restrictions on thelocation of application processing, COIll
mission payment and record keeping operations. The Comptroller allowed salesactivities of bank agencies to take placeoutside the places of less than 5,000 people to the same extent that non-bank agencies may engage in sales activities outsidethe location listed on their license as theiroffice. The Comptroller also permittedmarketing of insurance by telephone andover the Internet.
Acts 900 and 1004 of 1997 clarify therange of possible insurance sales by banksin Arkansas. tn particular, a loan officercannot sell insurance while he or she ismaking a loan (except credit life) and cannot use the customer's non-public information as a starting point to size upprospects.
While neither state nor federal lawremoves the under-5,OOO restriction forsales activities, Act 1004 recognizes theBarnefl decision and the First UnionNational Bank grant and deletes therestrictions which would have required allthe activities related to the sales to takeplace in thaI size, or smaller, towns.
TURN AND FACE THE CHANGELike the Arkansas Banking Code of
1997, while sweeping, these changes arestill more evolutionary than revolutionary,and hardly represent the culmination of theprocess. There will be yet more changesin the dual banking system and sources ofregulation, as well as some form of relaxation of the traditional Glass-Steagall Actseparation of commercial banking andinvestment banking, changes which willmake the law and practice of banking asource of continuing interest. .:.
CHRIS BARRIER and JOHN SELIG are members of rhe Little Rock*!Jased firm of Mirchell.Williams. Selig. Gares & Woodyard, PLLC.Barrier has sen'ed as chair ofrhe Arkallsas BarAssociarion s Fillancial Insriwrions LawSecrion and also irs predecessor. the BankingLaw Commilfee. Selig served Oil theGaven/or's Task Force to Revise ,he BankingLaws, chairing its Bank Powers Committee.Endnoles:I. NarionsBank of North Carolina. NA. v.Variable Af/Nuit)' Life If/s. Co., 5 J 3 U.S. 251.130 L. Ed. 2d 740 (1995).2. Bamen Bank of Marion Coumy I'. Nelsoll.517 U.S. _,134 L. Ed. 2d 237 (1996).
1',11 1997 nr ,lrkmas I,aw!rr Il
Is There Such AThingAs An Air-Tight Case iI
YOU'VE TAKEN A DOZENdepositions. Lined up an impressive groupof experts. Spent hours at the law libraryboning up on the applicable law. You'reready to take your client's case to court.Confident as you are in your position, canyou count on a favorable jury verdict? If not,what might be the extent of theconsequences?
Everything in Moderation specializes inconducting mock jury trials andfocus groups uniquely designed to helplawyer and client not only develop the strongpoints of their case, but also recognize itsweaknesses. Combining techniquespioneered in marketing research with hisdoctorate in social psychology, David Milleruncovers and analyzes attitudes of mockjury / focus group participants --- "everydaypeople" with backgrounds and lifeexperiences similar to those who may be
EVERYTHING
on your jury. Through this exercise, lawyerand client obtain the "jury" perspective of:
• Questions about, or gaps in,evidence;
• Whether certain evidence ispersuasive or credible;
• What the ultimate outcomeshould be.
In his 40-year career, Dr. Miller hasconducted over 1,000 focus groups and mockjury trials. Now you can put his expertise towork on behalf of your clients. He isprepared to conduct full-blown mock trials orlow-cost focus groups --- wha tever yourbudget will permit. Call for an initial, no-feeconsultation. All matters are handled instrict confidence.
No case is "air-tight," but Dr. Miller canhelp you present your best case to the juryand evaluate its risks and weaknesses.
ODERATION
Specialists in Focus Groups and Mock Jury TrialsA Division of David Miller Enterprises, Inc.
3 Greenview Court· Little Rock, AR 72212 • Telephone: 800-888-2263 or 501-218-0205. Fax: 501-218-0206
It Really Is ABig Deal!
OKFORTHE
If you don't see the seal - it's not an Arkansas Bar Association CLE Program. As a voluntary association, we depend on you, ourmembers, to support our CLE programs. Your financial support benefits every Arkansas Bar Association member with enhanced
membership benefits and discounts as well as the highest quality CLE programs in the state.
1997-1998 ARKANSAS BAR ASSOCIATION CLE CALENDAR ,,['d.lled 111/2,/'17
November 13-15. 1997BRIDGING THE GAP
UALR School of Law15.0 Hrs. CLE
Noyember 21. 1997IMMIGRATION LAW
Fayetteville, AR6.0 Hrs. CLE
December 5. 1997HEALTH LAW
UALR School of LawLittle Rock, AR
6.0 Hrs. CLE
December 11-12. 1997FEDERAL TAX INSTITUTE
Double Tree HotelLittle Rock, AR
January 22-23. 1998MID YEAR MEETI G
Peabody HotelMemphis, TN
9.0 Hrs. CLE
February 13. 1998ARKANSAS TRIAL PRACTICE INSTITUTE
UALR School of LawLittle Rock, AR
6.0 Hrs. CLE
February 25-28. 1998NATURAL RESOURCES LAW INSTITUTE
Arlington HotelHot Springs, AR
9.0 Hrs. CLE
March 13. 1998FAMILY LAW
Lake Hamilton ResortHot Springs, AR
6.0 Hrs. CLE
March 13. 1997FINANCIAL INSTITUTIONS
Lake Hamilton ResortHot Springs, AR
6.0 Hrs. CLE
March 20. 1998BANKRUPTCY LAW
Little Rock
19B 10.13. J99ItOOTH ANNUAL MEETING
Arlington HotelHot Springs, AR
hnc 2+?§ 19-30. 1991BESTOFCLE
UALR School of LawLittle Rock, AR
fallll9i The ,Irkmas La\\)1f Ij
BEFORE CENTRAL HIGH...BREWER V. HOXIE SCHOOL DISTRICT
by Mort Gitelman and Bill Penix
In the fall of 1997. the fortiethanniversary of the integration ofCentral High School in Little Rockcontinued to focus world anentionon that episode in Arkans<1S history.
A photograph of the "Little Rockinc" appeared on the cover of Newsweek
magazine and President Clinton attended aceremony marking the anniversary.Although the whole world recognizes theCentral High integration episode, few people know about the first case in Arkansaswhich dealt with school desegregation.That case, Brewer v. /-Ioxie School District,was one of the first federal cases in theperiod following the .S. Supreme Courthanding down the mandate in the case ofBrown v. Board of Education. The /-Ioxiecase was so unusual that the decision wasnoted in both the Yale and Harvard LawReviews, with the Eighth Circuit decisionfeatured in a leading casebook onConstitutional Law. What made the caseunusual was that the plaintiff was theschool board of Hoxie chool District andthe defendants were an array of segregationist organizations, including the WhiteCitizens Council of Arkansas and WhiteAmerica. Inc., and a number of prominentsegregation activists including AmisGuthridge, "Justice Jim" Johnson, andCurt Copeland. The plaintiffs sued in federal court for an injunction to prevent thedefendants from interfering with thepeaceful desegregation of the Hoxieschools.
Bill Penix of Jonesboro, along with hislate father and his late wife were the attorneys in that case. Bill Penix, now retired.recalls the litigation: "The superintendentand the five board members of the HoxieSchool Districi were aware of the twodecisions of the Supreme Court of theUnited States in Browll v. Board ofEducatiou. rendered in May 1954 andMay 1955. The latter decision told the districts to proceed with desegregation withall deliberate spced.
"The Hoxie School Board concludedthat the time was at hand for such action at
"What was so
unusual in the Hoxie
case was that the plain
tiff was the school board
of Hoxie School District
and the defendants were
an array of segregationist
organizations, including
the White Citizens
Council of Arkansas and
White America, Inc., and
a number of prominent
segregation activists
including Amis
Guthridge, 'Justice Jim'
Johnson, and Curt
Copeland."
Hoxie [there were about 1,000 white studems and 25 black students in the Hoxieschools]. Consequently, classes weredesegregated June 7,1955. (In those daysthe schools in Hoxie began in early summer so that a recess for fall harvest could
be observed.) A period of 18 days passedwithout a suggestion of trouble. Suddenly.a nationally circulated magazine appearedfeaturing photographs of black and whitechildren in class and at play. It \Va soonapparent that the situation at Hoxie wasgetting Oul of hand as segregationists fromall over the south came to Hoxie. Therewere threats, serious hostilities, and everyproblem to be imagined. The Hoxieschools closed.
"The Hoxie board decided to seek legalassistance. I agreed (0 meet with them ata board member's home and agreed thatmy two partners (my father and my wife)would take part in the case along withattorneys James Sloan of Walnut Ridgeand Edwin Dunaway of Little Rock.
"An early setback came as a resull of along telephone conversation withThurgood Marshall and several of hisassociates in the N.A.A.C.P. who wereknowledgeable in the area of law applicable to the Hoxie situation. We were toldwe must first find one or more black parents to bring the suit on behalf of theirchild. and that we should solicit suchplaintiffs. However. the Hoxie SchoolBoard and we, as its attorneys, unanimously agreed that we would make noeffort to pursue such a strategy.
"Our position was that if the Federalcouns could order Hoxie to cease having aracially segregated school system, then ourgovernment had a legal duty to supportHoxie officials in carrying out their federal duties.
"The complaint was filed in the federaldistrict court in Little Rock on October 13,1955. and was assigned to Judge ThomasC. Trimble. He issued a temporaryrestraining order the next day and set ahearing on the motion for preliminaryinjunction for October 20. On the 20th,defendant Guthridge, represented by M. V.Moody and W. H. Gregory of Little Rock,filed a motion to dismiss the complaintalleging it failed to state a cause of actionand that the court did not have jurisdiction.Briefs were filed and, quickly, Judge
see "Hoxie" page 18
Trimble filed an opinion on October 31overruling the motion to dismiss. In hisopinion on the motion, reported at 135 F.Supp. 296 (1955), Judge Trimble reiterated the essence of the complaint: '[T]hedefendants by threats and efforts to intimidate the Board of Directors, by the circulation of propaganda literature and byintlammarory speeches. as well as by trespassing upon school property under jurisdiction of the plaintiffs. and by threateningto set up a picket line to obstruct ingress ofchildren to the school, and by attemptingto persuade children's parents to withdrawthem from the schools, are endeavoring tohinder, obstruct and defeat plaintiffsattempt to comply with federal law withregard to the operation of the school.'
"Accepting the allegations of the complaint as true, Judge Trimble went on to
note that: 'The case so presented is almostthe exact opposite of cases that have beenconsidered by both state and federal courtsin the nation. Other courts have had underconsideration the question whether or notBoards of Directors can be compelled toopen their schools to Negro childrenwhere they are prohibited by state law toattend such schools. Here, however, thecomplaint alleges that the Board ofDirectors have determined that the schoolsshould be opened to egro pupils, but thatthe defendants are undertaking 10 preventthem from doing so.' Then, in overrulingthe motion to dismiss, the judge stated: 'Ishall not disclose what my own personalfeelings are WiOl respect to whether or notit would be wise or desirable that segregation of the races in the public schools ofthis state be enforced as provided by statelaws that have been effective since 1875;however, it must be stated that there arenow no valid segregation laws of the Stateof Arkansas, for they have, in effect, beendeclared unconstitutional and void by theSupreme Court.' The case was thenassigned to Judge Albert L. Reeves fortrial. W.H. Gregory dropped out asdefense counsel and Jim Johnson steppedin as both a defendant and attorney, alongwith M. V. Moody. On January 9, 1956,Judge Reeves made the preliminaryinjunction permanent; his decision isreported at 137 F. Supp. 364 (1956).Judge Reeves made specific findings offact, including that the order of the schoolboard to integrate the schools was acceptable and agreeable to an overwhelmingmajority of the patrons and residents of
Hoxie, and that the segregationist agitators Law Journal by Professor Wesleydisavowed violence, yet the utterances dis- Newcomb Hohfeld [23 Yale LJ. 16 (1913)closed by the evidence showed that the and 26 Yale LJ. 710 (1917)]. She hadwords used, and the very nature of the been interested in Dr. Hohfeld and hisspeeches, would have and did have the scheme of jural opposites/jural relationseffect to not only encourage violence but with jural correlatives. Her argument wasto intimidate those who were charged with that if Hoxie's officials had a legal duty 10
the responsibility of integrating the races. desegregate then they had Hohfeld's cor-Judge Reeves also stated as a conclusion relative right to be protectedof law Ihal the defendants were conspira- by Ihe federal courts.tors and the acts of each conspirator were "It was scary to read in the Yale Lawbinding upon all the others. Journal of April 1956 [while the appeal
"The defendants appealed the ruling was pending] that "...since the Hoxieaimost immediateIy, and the ;;;:;::;:=:::::;;;;;;:::;:;:;;;;;;~;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;~case drew some nationalattention. For appellate purposes, the plaintiffs' legalteam decided to use as ilscentral theory to the appellants argumenl of lack ofjurisdiction, the basic con
cept of legal rights and 1I1i~~~duties."
As Bill Penix recalls: "Mywife and partner, Marian,while she was at theUniversity of ArkansasSchool of Law, had becomeacquainted with two articles in the Yole
Legal Nurse ConsultantRegistered Nurse-Independent medical legal consultant
will work on cases involving:
·medical malpractice• personal injury.product liability
.workers' compensation• any case where health or injury is an issue
Sula Noonm'E-Mail Snooner@aoLcom
Phone: 501/590-2410Pager: 660-8412
Fax: 501-221-9461
Complete Portfolio Available Upon Request
hllI9!) fir lrtmll I,lll)H I)
Congratulations to theNew Members of the
Arkansas Bar AssociationWho Recently Passed the
Bar Exam!
"Hoxie"School Board rather lhan a sludent suedfor injunction, the District Court's holdingthat it had jurisdiclion is questionable.The same result may be oblained as longas a suit is initially broughl on behalf ofan aggrieved student. Comment. LegalSanctions to Enforce Desegregation in thePublic Schools: The COll1empt Power andIhe CiI'il Righls ACls. 65 Yale L.J. 630.637, n. 27 (1956). The Anomey Generalof Georgia filed an amicus brief in supportof the segregationists. and the Departmentof Justice filed an amicus brief in supportof the Hoxie school directors.
"On OClober 25. 1956. the .S. Courtof Appeals for the Eighth Circuit affinnedour district court victory. The court heldthaI Dr. Hohfeld's jural relations were lhelaw: 'The existence of a conslitulionalduty presupposes a correlalive constitutional right in the person for whol11 thedUly is to be exercised.' [238 F.2d 91. 1001The court also held lhat lhe school boardstood in loco parell1;s with the students,and could represent Ihe students' interestin desegregaled schools.
The Hoxie case was the subject of acasenOle in 70 Harv. L. Rev. 1299 (1957).On lhe issue of whelher the school boardcould seek injunctive relief. Ihe note writerconcluded: "If relief cannot constitutionally be granted to a school board ... aschool district which is ordered to desegregate is entitled 10 greater federal protection than one which voluntarily desegregates, since a federal coul1 may vindicateits authority by reslraining privat.e individuals from inlerfering with school officialswho are endeavoring 10 comply with a
judicial decree."Virtually every school desegregation
case in lhe federal reporls since 1954 hashad students as plaintiffs 'md the school, orthe districl, or lhe state as defendants. TheHoxie case stands as a fascinating monument to creative lawyering in crafting andapplying constitulional theory. In a leading constitutional law casebook in the1960·s. by Professors Freund. Sutherland.Howe and Brown (all of Harvard LawSchool). the Eighlh Circuit opinion in theHoxie case is the only non-U.S. SupremeCourt opinion in the enlire book.
If lhe lesson of the Hoxie case hadbeen taken to heart by Arkansas politiciansin 1957. the Cenlral High School episodemight never have happened. And insteadof celebraling lhe fortieth anniversary ofinlegralion at Central High, we would becelebrating lhe forty-second anniversaryof integnuion in the Hoxie schools.·:·
Mort Citelmcw is a law professor CI1 theUllivers;ty ofArkallsos School af Law olldBill Penix lias retired /i'om the practice oflaw after 40 years.
NOTICEThe Local Rules for the Eastern and
Western pistricts of Arkansas have
recently been amended and renumbered.Most amendments were limited to technical changes such as new telephone numbers or addresses. Copies of the newamended Local Rules are available in theClerk's Office (hardcopy or diskette) andan electronic version has been added toOUT web site - www.are.uscourts.gov.
George A. Anaya
Elizabeth A. Andreoli
Michelle L. Baker
Jonathan W Beach
Kevin G. Beckham
Katherine E. Blackmon
can C. Bles
Stephanie D. Bohanan
Glenn E. Borkowslci
Shannon L. Boy
Mich.e1 W. Boyd
Robert Dale Brandon
Warmond M. Brown
Stephen T. Brown III
Sherry D. Burnett
Bruce K. Burton
David Roy c',nnon
joel E. C.pe
David R. Cason
Stuart Arnold Cearley
Adam J. Chandler
Courtney M. Cheney
Thomas B. Chilton
Jennifer B. Compton
C. Thomas Corbin
joseph C. Cunninglum
Amy unningham
<Jwia~in D.idm,j,
Marcus A. Davis
Deborah S. Denton
Grant C. lXProw
Michelle H. Dill.rd
Jennifer c. Donaldson
Amy M. Driver
P.ul A. Efurd
Stephen G. Fallon
Shannon L. Fant
Fara Elizabeth Faubus
David C. Ferguson
Leslie Plowman Fisken
Ch.rI", . Floyd
th T. Ford
Andrew V. Francis
John K. Fulweiler
Buck C. Gibson
Todd A. Gibson
Eddie Mac Golden
Tonia S. Goolsby
Stephanie D. Gordon
Connie L. Grace
D.vid C. G<>bam, j'
James F. Gramling, Jr.
William L. Griggs, IV
G,ny Gunderman
Mae E. Haney
DAILY, WEST, CORE, COFFMAN & CANFIELD P.L.L.C.announces that the name of the law firm has been returned to
daily & woodswhich was the name of the law firm between its founding in 1919
by Harry P. Daily and John P. Woods and 1970, when it became Daily, West, Core & CoffmanIt is now AProfessional limited liability Company
The Law Firm Continues to Practice Law from Offices Located at623 Garrison Avenue, Suite 600, Fort Smith, Artlansas 72901Telephone: (501) 782·0361 Facsimile: (501) 782·6160
The Principals of the firm are:Ben Core Wyman R. Wade, Jr.Jerry L. Canfield Stanley A. LeasureThomas A. Dally Douglas M. Carson
Robert W. BishopAssociate: Todd P. Lewis Of Counsel: James E. West
IS U, \r~mlll.l~!,r fill 1!Ii
MOLLY PLYINVESTIGATIONS
Office 501 397-2620Pager 501 396-2629
NOTICE
JANUARY 24, 1998
HOUSE OF DELEGATES MEETING
Peabody HotelMemphis, TN
ing capacity, Ihe courl may consider thereasons therefor. If earnings are reducedas a mailer of choice and nol for reasonable cause, rhe COurl may anribut e income10 a payor up to his or her earning capacity, including considenuion of the payor'sIife-slyle. Lncome of al least minimumwage shall be attributed to a payor orderedto pay child support."
Other changes in the child supportguidelines modify Ihe written findingswhen Ihe court deviales from the chartamount, the definilion of income, and allocation of dependents for lax purposes.•:.
CIVIL & CRIMINAL INVESTIGATIONSVIDEO & AUDIO SURVEILLANCE
ASSET LOCATIONCOMPUTER ASSISTED SEARCHES
LICENSE #D97-046P.O. Box 61
Redfield, AR 72132
Supreme Court of Arkansas
Modifies Child Support
Guidelines
JOHN T. BATES, P.E. 1-800-299-5950Have reconstructed over 3,000 accidents in 18 states in25 years on highways, streets, railroads, highwayconstruction zO/les involving trucks, cars, pedestrians.Computer animations and drawings prepared forexhibits. "ACTAR" certified. Over 40 yearsengineering experience.TRAFFIC ACCIDENT RECONSTRUCTION
AND
EVALUATION OF HIGHWAY DESIGN
I n a per curiam opinion deliveredSeptember 25, 1997, the SupremeCourt of Arkansas issued
Administralive Order Number 10 whichcontains revisions to the child suppor!guidelines. The effective date of thisAdministrative Order is October I, 1997.The following are some of Ihe substantivechanges in these new child support guidelines:• The Arkansas Family Support Chairt,both weekly and monthly, has beenchanged as to the chart amounts.
The percentages indicating when thepayor's income exceeds Ihe chari havebeen revised.·The Affidavit of Financial Means hasbeen abbreviated somewhat.
One of the new provisions inl.he guidelines concerns the awarding of supportbased on imputed income. "If a payor isunemployed or working below full earn-
William C. Plouffe, Jr.
Edward L. Quinn, Jr.
Jennifer A. Rabbe
Laura C. Ranalli
Helene N. Rayder
joseph D. Reece
john C. Riedel
Sherri Lynn Robinson
leI[ Rolfe, IV
Richard N. Rosen
Michael E. Sanders
Jay Scholcens
John M. Scon
Stacey L. Seanor
Gail T. Segers
J. Hudson Shepard, J"
Jeffrey G. Sikes
Brenda J. Snow
Rebecca S. Solera
David W. Sterling
Michael D.R. Stevens
Jan William Sturner
Den David Swindle
John P. Talbor
limothy M. Tallach
Camille Steadman
Thompson
Raben EThompoon, III
Cody D. Thompson
Stephen M. Trail
Christopher L. Travis
Casey Rae Tucker
Daniel O. Turner
Andy Lee Turner
Jason H. Wales
David A. Washnock
limon Jeremy Watson
Rosalyn A. Warts
Elisa M. White
Morris L. Williams, III
Thomas B. Wilson
Joan E. Wilson
Caroline L Wmningham
Shawn A. Womack
Karen K. Wood
Julie Anne Purifoy
Wright
John R. Yates
Perry Y. Young
Dan Clark Young
Dennis R. Hansen
Charles S. Harmon
Jason M. Hatfield
Cymhia L. Hawkins
Philip J. Hayes
Christopher W. Hays
Jennifer B. Hendren
Jason B. Hendren
Counney Rae Henry
Mark M. Henry
Michael K. Herring
Leslie H. Herrington
Avalon Gayle He"e1
Curtis W Hin
Mark W. Hodge
Jennifer R. Hodges
Michael Scott Hodson
Diane S. Holitik
Steven R. Jackson
Jeb Hunter Joyce
Roy Berh Kelley
joe Harvey Kimmel, III
Ellen Faubus Kreth
Jeremy K. Landon
William F. Lang, rvElizabeth S. Langston
Tom J. Laub
Michael A. Lilly
Pamela M. Long
John D. Maddox, II
Jacqueline w. Major
Manzer J. Mansour
Sara Lynne Marshall
Winston C. Mathis
Nancy L. Mathis
Kristi Ann Mattes
Melanie J. McClure
Patrick C. McDaniel
Mary Efu.beth MeFadyen
Phillis M. McKenzie
Miehelle M. Mhoon
Cylemhia L. Miller
Deenita Dawn Moak
Charlotte A. Moore
Jeffrey J. Mullins
Graham H. ations
SUSU1 D. Neisser-Ko~nes
Kevin Jay Orr
John O. Payne
Peter Branko Pejic
1'1II191i 11/ ,lr~alSls ta""" II
VOCALS 1982-1997:JOINT VENTURE FOR JUSTICE
by Jean Carter and Mary Henry
';Dear Fellow A!torney: We are writingto request your participation ill all organization which is the firsl of its kind:'
Thus began the letter dated September1982 which was mailed to attorneysthroughout Pulaski Coumy. The letterwent on 10 ask the attorneys to join"VOCALS," Volunteers Organizalion forCentral Arkansas Legal Services, a jointventure of the Pulaski County BarAssocimion and Central Arkansas LegalServices (CALS).
The leiter was signed by W. RussellMeeks, President of the 1982 PulaskiCounty Bar Association, along with the
/983 Sfflf~ proclnmntion acknowledging VOC.ALS 300lbmnnber, COl/emor Bill Climon. From /¢: LeglllSeroicrJBoard President, Km Gould. VOC4.LS Board members,Russ Muks andJane Dickey. Gov. Climon, VOOILS Boardmembers. Mark Lmer and \f/mdell Griffin.
VOCALS Board or Directors whichincluded: M. Jane Dickey, Milas H. Hale,Phillip Carroll, Wendell L. Griffen, ByronL. Freeland, Markham Lester and Kaye S.Oberlag (McCleod). The VOCALS project was the result of months of hard workby this board and the bar comminces thatwere fonned to address the crisis in federal funding of legal services.
Fifteen years ago, Central ArkansasLegal Services was facing a $200,000 cutin federal funding from the previous year.Layoffs had occurred, and staff attorneyswere only available for emergency cases.
The Pulaski County bar rallied to thecause and organized VOCALS as a pro
iO n, \r~milll.l~l,r rill 1!9i
bono organization to replace the small probono panel of referral attorneys which hadoperated at CALS since 1977. Attorneyswere asked to join VOCALS and agree toeither accept up to three pro bono cases ayear or contribute annual dues to help fundthe program. A special emphasis on legalhelp to the low income elderly was also animportant component of the program fromthe beginning.
At a Capitol Rotunda press conferencejust six months after the original recruitment letter, the VOCALS program wastrumpeting its 300th member: thenGovernor Bill Clinton. By April of 1984,three hundred and fifty (350) PulaskiCounty attorneys belonged to VOCALS,and more than one thousand (1,000) caseshad been completed, with $22,000 raised.And VOCALS had one of the best probmw programs in the country. In 1985,the Pulaski County Bar Association wasrecognized for its effort by the AmericanBar Association and the Narional LegalAid and Defenders Association for the"outstanding leadership and support"given the VOCALS Program and was presented with the Harrison Tweed Award.
Much has changed in the past fifteenyears. Central Arkansas Legal Servicesmerged with Legal Services of Arkansas in1995 and is now the Center for ArkansasLegal Services. The VOCALS name isshared with the pro bono programs in theother 31 counties served by the Center.Don Hollingsworth, who was so importantin the fonnation and administration of theprogram, is now the Executive Director ofthe Arkansas Bar Association.Fortunately, his commitment is shared bythe current VOCALS Executive Director,Jean Turner Carter. The current Board ofDireclOrs for VOCALS is: Frank Sewall,Richard Donovan, Laura Wiltshire, EdDillon, Win Drummond, Troy Price, ArkieByrd, Audrey Evans, Jeanne Seewald,Carolyn Witherspoon and William M.Griffin.
Year after year VOCALS has surpassed
the goals set by the board both in membership numbers and dues comributed to theprogram. In 1996-97, over $117,000 wascontributed and there are now 785VOCALS members. The value of the probOllo representation to low income peoplein Pulaski County was placed at over$640.000 last year.
On this fifteenth anniversary. the visionand the wisdom of those first bar committee members and the tremendous hardwork of the original VOCALS BoardMembers is appreciated and remembered.·:·
.leall Carrer is lite Execlllive DireclOr alldMary Henry is the Volunteer ServicesCoordinator of the Cell1er [or ArkansasLegal Services (VOCALS).
c../t lisa
f?T horne
{f orke
Attomey at Law
.:.AppeUate advocacy
·:·Legal research
·:·General practice
125 East Township. Suite 3Fayetteville. Arkansas 72703
(501) 443-2249Facsimile (501) 443-8016
E-mail [email protected]
PROFESSIONAL LIBRARY
AR Bar PublicationsAre Exclusively OnThe LOIS CD-ROM!
The Arkansas Bar and LOIS have teamed up toproduce a comprehensive law library for Arkansas.This CD-ROM contains a complete Arkansasprimary law library PLUS publications from theArkansas Bar.
Arkansas Bar Publications on this CD-ROMBankruptcy HandbookCorporation SystcmDebtor/Creditor RelationsDomestic Relations HandbookElder Law Desk ManualFonn BookLaw Office HandbookProbate Law SystemReal Estate Titles
Trial Notebook
Arkansas Primary Law on this CD-ROMupreme Court Cases from 1924
Court of Appeals from 1979Eighth Circuit CasesCodeAttorney General OpinionsActs (1993 to 1997)Regulations·Civil Jury InstruclionsCourt RulesJudicial Ethics OpinionsCircuit Court Benchbook*Juvenile Judges' Benchbook*
All Arkansas Bar Titles can be purchased by Barmembers for $590 and by non-members for $790.Individual titles are also available. Atkan asPrimary Law is available for only $600 per year toboth members and non-members.
Put the power of LOIS and the Arkansas Bar towork for you. Call 800-364-2512, ext. 152 toplace your order or request a FREE trial copy.
-These databases arc available for an additional charge.
by Justice Robert L. Brown &Sheila Campbell
HOW THEPUBLIC VIEWSFEMALE AND BLACKATTORNEYS
Introductiotlby JI/stice Robert L. Browll
Abo/ll two years ago. Sheila CampbellGild I met as co-chairs ofthe Comm;uee all
Opportunities for Women and MinoriTies10 discuss projects for Ihe year. II wasSheila's idea 10 condllct a public opinionpoll all how women and Africal/-Americanattorneys are viewed by tile public at large.Does bias exist? If so. wllm form does itrake? And who are 1110S1 likely lO exhibitprejudice against oflomeys wllo are I/O!
while males.We illi/iolly rail ;1110 a s11ag because of
Ihe absence of any [lIl1ding source for theproject. It was 01 1hOl paim {hat SandraMoll stepped ill alld sllggested thatProfessor DOl/glas Bllffalo at theUllh'ersity of Arkansas at Liffle Rock becomocted aboUl doing a slilTey as a dassassignmel11. The idea has borne/ruff. TheArkansas Bar Association made its telephone bank available, and ,he statewidepoll was done at minimal e.\JJense in all 75cOIt11fies with 548 responde11fs.
Wllat follows is Professor Buffalo·sdescriptioll of IIis metllodology aud IIisoualysis of tile poll results. Tile first partof tile poll deals witll perceptiolls of maleand female attOT!U!)'S and the second wi,hwhite and black attorneys.
Not surprisingly. the public in the pastlias tilred decidedly ill fmw of",IIite maleswhen hiring an ollorney. Nel'ertheless,when asked the gender of the attorney theywould hire in certain areas ill the fwure,male andfemale respondews both opted infOl'or of women as counsel fordil'orce/child custody mailers, sexualharassmew cases. and discrimination law
.... Ut Irlmal La'rtf Fall Illi
suits. In another area examined. mostrespondews, who believell there was apreference. thought mole attorneys weretaken more seriously by juries thall femalea11orl1eys. Howe\'er. the \'ast majority ofrespollde11fs said thOl judges did not exhibit prejudice in fal'or ofa110meys based 011
gender.Perhaps the most i11friglting re\'elmion
frOlll tile geuder pall is tllar tile publicviews male a110meys os being more likelyto ol'ercharge ond do unnecessary work.bllt yet people are still IIIore likely to selectmole counsel than female counsel in mostareas. The public also sees female 0110rlIeys as horder workers and more solicitous of their cliews but nonetheless mostpeople leon toward male counsel. Why?The allswer is IIl1clew: One suggestedexplanation is that people are more willingto be o\'ercharged by an eswblished maleof/oriley who has experience ill the particular area of the law than a less seasolledfemale lawyer.
With respect to race. the poll evidenceda decided perceptiou by AfricauAmericans that juries are skewed againstthem. Whites. 011 the other hand, tended torespond that both white and black allorlIeys were treated in most respects thesame by juries alld thm discriminationagainst black allorneys did II0t exist.Pollsters reported to Professor Buffalothat both blacks and whites were to/comfortable answering questiolls all race, andrhat white responde11fs did liar wow to beperceh'ed as biased. Judges agoill wereviewed more likely tholl juries to befair toblack aflorneys.
The Views & Methodology:A sample of 548 lelephone subscribers
was drawn from Arkansas' seventy-fivecounties. The sample was stratified bycongressional district so Ihal each congressional district was equally represented.The random digil dialing melhod was usedto include all potential numbers inlo thesample. To ensure thai a pattern would notdevelop, the Waksberg Method was used.This method selects numbers with legitimate prefixes and adds a random numeral[0 the end of each number that is chosen.and allows unlisted numbers (0 be incorporated into the sample.
Calls were made by sociology studentsat the University of Arkansas at LinleRock between 6:00 p.m. and 9:00 p.m.Monday Ihrough Saturday starting onApril 17 and ending on March 8, 1997.Students were under the direction of Dr.M.D. Buffalo.
John Knox, a Roberl McNair Scholar,developed lhe initial questionnaire in thesummer of 1996. This instrument waslested on approximalely 150 Arkansans.In addition, in the Spring of 1997. the sociology research class at Ihe University ofArkansas at Little Rock further pretestedand refined the questionnaire.
Two issues need to be addressed prior(0 presentation of the survey. While conducting the pretest. at least one unresolvedproblem was encountered. Respondentsindicated significant discomforl withissues of race. This uneasiness wasexpressed by both black and while respondents and Lhis discomfort continued intothe final survey. Among whites the concern was mosl often expressed as a fear of
61.5 10.3 28.2 340
62.0 8.5 29.6 142
61.7 10.9 27.5 193 nN: nol a significant dltlerence between the two groups
526519531529530532
25.9 29.127.7 26.853.3 20.217.4 30.419.8 30.662.6 16.4
45.145.526652.249.621.1
see "Attorneys" I>age 24
RespondentsMale Female Both Total
Gender of the LawyerMale FemaleBoth Total
Which lawyer would youhire with a legal probleminvolving...Wills/InheritanceMalpracticeDivorce/Child CustodyCar AccidentfTrafficSetting up a BusinessSexual Harassment
Male RespondentMale Female Both Total
Female RespondentMale Female Both Total
What is the gender ofthe lawyer you knowpersonally?
A very different picture emerges whenwe compare the gender of the attorney thatrespondents have used for prior legal services and the gender of the attorney thatthey say they would use if they had a legalproblem. A majority said that they woulduse a female attorney for issues involvingdivorce and child custody, sexual harassment, and if accused of sexual discrimination. A majority indicated that they woulduse women attorneys for problems of discrimination. Generally, respondents saidthat they would choose female attorneysfor problems generally associated Wilh"women's issues."
A majority of respondents said theywould chose a male attorney for car/trafficaccidents. A majority also said they woulduse male anorneys for wills and inheritance, malpractice. and setting up a business. Except in the case of sexual discrimination, at least one in five said lhalthe gender of the attorney did not maner("Both").
What is the gender ofthe lawyer you knowpersonally?
What is the gender ofthe lawyer you knowpersonally?
Male RespondentsYes No Total69.3 30.7 202
Female RespondentsYes No Total61.7 38.3 313 NSD
Gender of the LawyerMale Female Both Total
Lawyer retained for:Wills/Inheritance 87.3 7.3 55 55Malpractice 81.8 18.2 11Divorce/Child Custody 79.5 12.5 8.0 88Car AccidentfTraffic 91.5 8.5 47Business/Corporation 79.6 14.3 6.1 49Criminal 95.7 4.3 23Other 78.4 17.0 4.5 88
Male RespondentMale Female Both Total
Lawyer used for:Wills/Inheritance 688 18.8 125 16Malpractice 889 11.1 9Divorce/Child Custody 74.2 12.9 12.9 31Car AccidentfTraffic 90.0 10.0 20Business/Corporation 83.3 8.3 8.3 24Criminal 100.0 13Other 74.4 20.5 5.1 39
Female RespondenlMale FemaleBoth Total
Lawyer retained for:Wills/Inheritance 94.9 2.6 2.6 39 sMalpractice 50.5 50.5 2nDivorce/Child Custody 82.5 12.3 5.3 57nCar AccidentfTraffic 92.3 7.7 26 nBusiness/Corporation 76.0 20.2 4.0 25 nCriminal 90.0 10.0 10 nOther 81.6 14.3 4.1 49 ns: SlgnlhCant difference In the two groupsn: not enough cases to generalize
Do you know a lawyer personally?Respondents
Yes No Total65.0 350 520
NSD: not a sign~icant difference between the two groups
Almost two oul of three Arkansans surveyed indicated that they knew an attorneypersonally. This figure was the same forboth men and women. Slightly over one insix only knew a male attorney and one inten knew only a female lawyer. More thanone in four knew attorneys of both sexes.Combining those that knew both male andfemale attorneys, almost 90% of therespondents knew a male attorney, whileslightly less than 25% knew a femaleattorney. Women were more likely toknow a male attorney than a female attorney-the same pattern found among malerespondents.
Male RespondentsYes No Total59.7 40.3 216
Female RespondentsYes No Total58.4 41.6 327 NSD
being perceived as racist. While blacksalmost never expressed concern of beingperceived as a racist, they often expressedcuriosity about the survey and its uses as itrelates to race. No similar sensitivity wasexpressed regarding gender issues.
Related to the concern regarding racialissues is the issue of Usocially desirableresponses." A "socially desirableresponse" occurs when the respondentalters his or her answers so as to be consistent with what is believed to be theinterviewer's opinion. It is often difficultto detennine whether the answers wereactually the respondent's opinions orsocially desirable responses. Our analysisof a set of polls conducted by CBS and theNew York Times (1994) regarding issuesrelated to the OJ. Simpson trial pointed tosimilar problems. While respondentsoften exhibited extreme uneasiness regarding racial issues in the Arkansas BarAssociation Sample, no evidence ofsocially desirable responses was found(based on the race of the interviewer).
N$D: not a significant difference between the two groups
Knowledge and se of LawyersMost respondents (58.6%) had retained
a lawyer at some time in their life. Thepattern was not different for men (59.7%)than for women (58.4%).
GENDER
Survey respondents indicated that theyhad employed men much more frequentlythan women for every legal specialty thatwas mentioned. With only one exception,no difference was found between men andwomen regarding their pattern of preference for male attorneys in past legal cases.The only exception was that men wereslightly more likely than women lO haveretained women for legal work involvingwills and inheritance.
Have you ever retained a lawyer?Respondents
Yes No Total58.6 41.4 548
rall199i 1'hr ,\rklnm La\\)rr t~
"Attorneys"
\Vhen the responses of men and womenare compared we find that in three areas(car/traffic accidents. setting up a business.and discrimination) men and women'sresponses significantly differ. In all threecases men were more likely than women tosay that they would choose lawyers of theirown sex.
Reasons why one gender has an advantage overanother gender when the jUdge Is male.
PercentMale Female
Societal Views/DominentGender 52 30Competency!Education of Gender 7 0Personal Perceplion!Experience of Respondent 4 10Identifying with One's
see "Attorneys" page 26
decision for our children, by returning to his
home. I am sure that my experiences in tho einitial months provided the genesis of my
desire to become a lawyer.
My history is also profoundly different
from that of the other two women whohave been sworn in this week. For I
remember all too well that when my
husband and I were married in1963, my wedding announce
ment was rejected as unsuitable and unacceptable by the
local Pine Bluff newspa
per...my picture deemed
unfit to occupy even apage of newsprint besidethe photographs of other
local brides.
So, for me to stand
here today wilh the other
judges is a testament tothe progress we have
made and, I hope, will
continue to make in mychosen home and in my
chosen profession. And a I
take my place as one of 12
judges--3 women, 3 African
Americans--I also feel a deep
sense of humility, but I am very,
very proud to serve on a court that soexemplifies true diversity--that indeed
includes us all.
Thank you.•:.
Total86 NSD
Survey responses as to why Arkansansbelieve that males have an advantage witha male judge are lisled below. based on thesex of the respondent. The reasons werenot particularly enlightening and for themost part simply noted the dominance ofmen in society and the workplace.
If Judge is male, Who has advantage?Female Respondents
Male Female88.4 11.6
NSD: nol a SIgnificant difference between the two groups
found inPine Bluff
with respect to thestatus of African Amcricans. My husband andI questioned whether we had made the right
finger of your hand and still have fmgers left
over. I cried many tears during my first fewmonths as an Arkansan, and not the least ofthose tears were forthe state of
affairsthat I
Total49
Totai137
Female2004
Female34.7
the judge were asked who they thought hadan advantage if the judge was malc.Almost eight in ten said that malcs have anadvantage.
Male RespondentsMale65.3
If jUdge is male - Who has advantage?Respondents
Male79.6
month, and year after year. It was a grueling
pace. at times exhausting, and it is matched byonly one other supreme court in the nation. I
am proud to have been associated with a courtwith such an outstanding work ethic and dcdication to duty. I know thal my tenure on thatcourt will indeed serve me in good stead onthe court of appeals in the months and years to
come.But, as I listcned to the remarks and the
stories of the other new justice and judges, Icould not help but think that there is some
thing profoundly different about my history,
and consequentty my appointment to the
court--something that sets me apart fromall the Olhers whose swearing-in ceremonies we have witnessed this week.
For I thought back on when I first
came to Arkansas with my husband in1969, to his home town of Pine Bluff. 10
live there and to raise our family there. Irecalled that in the initial weeks. I set
about to do all those mundane tasks that
musl be accomplished when changing
one's residence--obtaining a new driver'slicense. registering to vote, arranging forut;lity services. As I visited the various city,county and other offices, to my horror andshock, the only people like me whom Ier!tountered had their hands finnly clasped
ar und a broom or mop. For in 1969, there
were no African Americans in poSitions ofresponsibility in any of these offices. Therewas not even a secretary, not even a clerk,never mind judges, in the county courthouse.And in the whole of Arkansas, you could
count the African-American attorneys on the
Total195
Total309 NSD
To the judges, justices, and 10 all friends
and family mentbers assembled here for this
historic occasion--today we witness theArkansas Court of Appeals assume a full com
plemenl of Iwelve judges--judges who will
enable this court to better serve the bar and thecitizenry by promptly resolving the caseswhich are presented to us. I am indeed proudto be a part of this new era for the court ofappeals.
As I listened to the words today of my fel
low appointees to the court, and to the remarksof the three new Arkansas Supreme Court
Justices just yesterday, I was struck by their
many accomplishments, by the variety and
breadth of their experiences, both legal and
non-legal, and by lhe very personal stories that
they related. But I was most touched to hear
words of such humility and selnessness. from
those who have risen to the heights of powerand prestige in this state and even the nation,as they pledged to faithfully carry out the
responsibilities of this most high office. For it
is indeed an awesome responsibility to determine not only the fortunes and even the liber
ty of the parties before us, but also of others 10
come. by the precedents that we set down.
And. as I have learned, it is not a job for the
faint of heart or for one lacking in stamina.Over the past two years as I served on thesupreme court, there were times where Idevoted nearly every waking hour, week afterweek, to the work of the court. AI first I could
not believe il possible that the members of the
court could maintain such a fonnidable schcdule, to a great extent self-imposed, but theyhave done so, week after week, month after
!RJmark§ OfJudge Jlndree Layton '.RJJafi Jlr/(ansas Court ofJlppeafsSwearing-In Ceremony) January 7) 1997
Respondents who indicated their beliefthat the gender of the lawyer mauered to
Does the gender at the lawyer matter to the judge?Ves No Total30.8 69.2 509
Male RespondentsVes No27.2 72.8
Female RespondentsVes No32.7 67.3
N$O: not a Slgl"llficantlifference between the two groups
PercentMale Female
Societal Views/DominentGender 75 24Compelency!Education 01 Gender 13 33Personal Perception!Experience of Respondent 9 t8Identifying with One'sOwn Gender 1 6Other 2 18Total 100 '100(N) t7t 33'total may no! add 10 100 due to rounding
51.0 7.4 41.7 312s
36.2 14.3 49.5 210
Female RespondentsMale FemaleBoth Total
Male FemaleBoth Tolal
Male RespondentsMale FemaleBoth Total
45.2 10.1 44.8 236
Respondents were further asked if theythought that the judge was innuenced bythe gender of the anomey. Respondentswere more likely to indicate thc judge wasnot inlluenced than to indicate the jury wasuninnuenced by the gender of the auomey.Over two OUI of Ihree responded that thegender of the attorneys did not mailer tothe judge. Male and fcmale respondentswere no differclll on this issue.
Reasons given for onegender being taken moreseriously by juries thanthe other:
50: sigMicant tilletence in the two groups
Arkansans who claimed that one sex orthe other was favored by juries were askedto explain their answers. The majority(75%) of those who said that men are takenmore seriously used phrases such as: "it's aman's world: men are considered the dominant gender; society views men as moreserious than women. etc." Those that saidthat women are taken more seriously notedthat women were bettcr educated and morecompetent.
Which lawyer is takenmore seriously byjuries?
Which lawyer is takenmore seriously byjuries?
Which lawyer is takenmore seriously byjuries?
206209211213212207207212
26.2 23.852.2 16.71104 27.0t4.1 28.261.8 14.234.8 24.230.4 26.650.9 17.9
50.031.161.657.724.t41.143.031.1
Male RespondentsMale FemaleBoth TOlal
Which lawyer would youhire with a legal probleminvolving...MalpracticeDivorce/Child CustodyCar AccidentITrafficSetting up a BusinessSexual HarassmentDiscriminationAccused 01 Racial Dis.Accused of Sexual Dis.
Female RespondentsMale FemaleBoth TOlal
Which lawyer would youhire with a legal probleminvolving...Malpractice 42.2 29.2 28.6 308nDivorce/ChikJ Custody 23.3 53.9 22.7 317nCar AccidentlTraffic 45.4 21.6 33.0 315sSetting up a Business 43.3 24.0 32.7 312sSexual Harassment 18.7 63.2 18.1 315nDiscrimination 25.2 5104 23.3 313sAccused of Racial Dis. 33.0 37.9 29. t 306nAccused of Sexual Dis. 28.8 49.5 21.7 303ns. 5olgl"llflcana difference Il'l the two groupsn: not enough cases 10 generaize
Gender of the LawyerMale Female Both Total
Which lawyer would youhire with a legal probleminvolving...Discrimination 31.7 44.7 23.5 523Accused of Racial
Discrimination 37.t 35.1 27.8 518Accused 01 Sexual
Discrimination 29.8 50.2 20.0 530
Fairness in the Law ProfessionOver four in ten respondents indicated
that men are taken more seriously by juriesthan women. One in ten expressed thebelief that women are taken more seriously than men. A significant percent (44.8%)noted that there was no difference betweenmen and women as perceived by juries.Women were marc likely than men to saythat men were taken more seriously byjuries.
rill I!!) Til Ir'mil LI~W il
NSD: not asignirlcant difference between the two groups
·total may not add to 100 due [0 rounding
"Attorneys"Reasons why one gender has an advantage overanother gender when the judge is male.Own Gender 34 10Other 1 30Total "00 100(N) 67 10
General Attitudes About Law)'ersRespondents were asked a series of
questions designed to indicate general anitudes toward the profession and how thesealtitudes differ by gender. The following isthe summary of these findings: Womenattorneys were more likely to be seen in apositive light while men were more likelyto be seen in a negative light. A majorityof respondents noted Lhat women: 1) workharder; 2) keep clients well informed; 3)advocate legal reform; 4) become involvedin community work and charities; 5) caremore about the client Ihan winning; 6) provide free legal services to the poor; and 7)charge the client the least amount ofmoney. Men on the other hand were morelikely 10 be perceived as: I) doing unnecessary work to collect higher fees; 2) violating ethical rules; and 3) filing unnecessary lawsuits.
see "Attorneys" page 27
Gender of LawyerMale FemaleBoth Total
In your perception,which lawyer...Works harder 12.4 56.2 31.5 502Keeps clients wellinformed 16.3 56.5 272 496Advocates legal reform 23.5 53.8 22.7 480Involved in communitywort<lcharieties 176 60.7 21.6 522Does unnecessary workto collect fees 63.3 14.7 22.0 482
o
8
17
75o
10048
60
15
15
o10
10020
Reasons why one gender has an advantage overanother gender when the jUdge is female.
Male Female
15.9 62.7 21.4 528
Female RespondentsMale FemaleBoth Total
Societal Views/DominentGenderCompetencylEducation of GenderPersonal Perception!Experience of RespondentIdentifying with One'sOwn GenderOtherTotalIN)
Finally, respondenls were asked whichlawyer (male or female) was judged moreby appearance than abilities. Over six inten said women were. Men and womensurveyed responded basically the same tothis question. There was no significantdifference in their responses.
Male FemaleBoth Total
Male RespondentsMale FemaleBoth Total
Which lawyer is judgedmore by appearance thanabilities?
Which lawyer is judgedmore by appearance thanabilities? 15.9 62.3 21.7 207
Which lawyer is judgedmore by appearance thanabilities? 16.1 62.7 21.2 316
Total121
Total79 NSD
Total38
Female70.2
Those surveyed were also asked ifeither altoflley had an advantage if Ihejudge was female. Seven in ten indicatedthat a female anorney had an advantage ifthe judge was also female. There was nota significant difference in the way men andwomen respondents answered this question.
If judge Is female-Who has an advantage?Respondents
Male29.8
Male RespondentsMale Female25.6 77.4
Female RespondentsMale Female32.5 67.5
Respondents who said that a femaleattorney had an advantage if the judge wasalso female were asked to explain theiranswer. Responses are not enlightening.Most of the women who responded said
Ihat a female judge would idenlify withsomeone of her own sex, Men said that itwas a response to male domination.
John E. McAllister, P.E.Graduate Electrical Engineer, 34 Years Industrial Experience.Specialist in Industrial Machine Guarding and Safety.• Born 1921. B. Sc. in Electrical Engineering 1947.• 14 Years experience wilh General Electric Co. in engineering and industrial sales.• II Years President of company involved with repair and rewinding of ele~tric motors and
the manufacture, sales, installation and servicing of electrical control panels for induslry.• 9 Years President of large distributor specialiZing in the sales, manufacture, installation
and servicing of all types of safety equipment for industry wilh major emphasis on metalforming and stamping.
• Registered Professional Engineer in 3 states.• Curriculum vitae and references on request.
John E. McAliisler, 9 Sierra Lane, HOI Springs Village, AR 71909·3214Phone: (501) 922·1709 Fax: (501) 922-4177
~& nllrlmlll.all)rr fall 199/
NSD: not asignificant difference between the two groups
RACE
Knowledge and Use of LawyersThere was not a significant differencebel ween the percent of whites and blacksIhat had retained an attorney, Slightly overhalf of both groups said Ihat they hadretained an attorney.
If the respondent indicated that s(hehad retained an attorney, the race of theattorney was asked, The majority of attorneys retained by respondenls wete white,The sampling number of cases is too smallto compare black responses to whites forstatistical signifigance.
NEBLI IT, BEARD
& ARSENAULT
Nationwide Toll Ftee1-800-256-1050
Alexandria, LouisianaAttorneys
Aexible Referral Arrangements
Maritime, FELA, Aviation,Automobile, Products Liability,Highway Design
Frequent Reporting & Updating
Full TIme In-House InvestigativeStaff
I
I
I
I
see "Attorneys" page 28
I Recognized in "Best Lawyers inAmerica" Publication
NEED LOUISIANA
PERSONAL INJURY
COUNSEL?
I AV Martindate-Hubbel Rating
I Ten Lawyers & Large Support Staff
Whi,e attorneys were more likely to beknown by respondents Ihan black attorneys. However, it is clear from the tablebelow that there is a significant differencebetween black and white respondentsregarding the race of the attorney theyknow, Blacks are more likely to know ablack attorney and whites are more likely
Black RespondentsVes No Tofal60.3 39,7 73
White RespondentsVes No Total66,3 33.7 427 NSD
NSO: not asignificant difference between the two groups
Do you know a lawyer personally?Respondents
Ves No Total65,0 35,0 520
Both respondenl groups were equallylikely to know an attorney. Six in ten indicaled that they knew an attorney,
White RespondentBlack White Both Total
o 100 2o 100 3o 75,0 25,0 4
41,7 58,3 1242,9 57,1 760,0 40,0 550,0 50,0 10
Black RespondentBlack White Both Total
Lawyer retained for:Wills/Inheritance 8,2 91,8 49nMalpractice 14,3 85.7 7nDivorce/Child Custody 2.4 96,3 1.2 82nCar AccidenVfraffic 8,3 86,1 5.6 36nBusiness/Corporation 2.7 97,3 37nCriminal 14.3 85.7 21 nOther 5,8 91.3 2,9 69n5: signlicim difference In the two groupsn: nol enough cases to generalize
Lawyer used for:Wills/InheritanceMalpracticeDivorce/Child CustodyCar AccidenVfrafficBusiness/CorporationCriminalOther
Have you ever retained a lawyer?Respondents
Ves No Total58,6 41.1 548
Black RespondentsVes No Total51.4 48,6 74
White RespondentsVes No Total59,0 41.0 454 NSD
Poll," June, 1994, Ann Arbor Michigan:ICPSRCBS/The New York Times, "CBSNews/New York Times OJ, Simpson Poll#1," July, t994, Ann Arbor, Michigan:ICPSR,CBS/The ew York Times, "CBSNews/New York Times OJ, Simpson Poll#2," July, 1994, Ann Arbor, Michigan:ICPSR,
Female RespondentsMale FemaleBoth Total
"Attorneys"
In your perception,which lawyer..,Works harder 11.3 51,2 37.4 203Keeps clients wellinformed 19,8 528 27.4 197Advocates legal reform 18.4 579 23.7 190Involved in communitywor1<lcharieties 20,0 57,1 22,9 205Does unnecessary workto collect fees 64.4 13,1 22,2 198Gives free legal servicesto the poor 16.7 61.1 22.2 198Is more likely to violateethical rules 77.5 4,0 18,5 200Cares more about theclient 8,7 64,1 27,2 195Files an unnecessarylawsuit 66,3 13,3 20.4 196Charges the least amountof money 14,8 57,1 28,1 196
In your perceplion,which lawyer..,Works harder 12.9 60,0 27,1 295nKeeps clients wellinformed 13,9 59,2 26,9 294nAdvocates legal reform 26.7 51.2 22,1 285nInvolved in communityworklcharieties 16,0 628 21.2 312nDoes unnecessary workto collect fees 62,4 16,1 21.5 279nGives free legal servicesto the poor 17,5 57,8 24,7 308nIs more likely to violateethical rules 66,8 6,5 26.7 277sCares more about theclient 12.6 60,6 26,8 302nFiles an unnecessarylawsuit 61.9 14,2 23,8 281nCharges the least amountof money 15,3 54.3 30,3 300ns: significant dJHerence in the two groupsn: not enough cases to generalize
Gender of LawyerMale FemaleBoth Total
ReferencesCBS/The New York Times, "CBSNews/New York Times 0.1, Simpson
In your perception,which lawyer..,Gives free legal servicesto the poor 17,2 58,9 23,9 511Is more likely to violateethical rules 70,9 5,4 23,7 481Cares more about theclient 11.0 61,9 27,1 501Files an unnecessarylawsuit 63,3 14,0 22,7 480Charges the least amountof money 15,0 55.4 29,6 500
Male RespondenlsMale FemaleBoth Total
Fall199i Tbe ,lrkuslll,lll!er Ii
1I:l=lB
IIPAUL D. MIXON, Ph.D, P.E. ~ELECTRICAL ENGINEERING CONSULTANT
ELECTRICAL ACCIDENT INVESTIGATION• Reconstruction and Analysis. Property or Equipment Damage
• Personal Injury or Death. Stray Voltage
REGULATORY CONSULTING• Power Line Siting. EMF Expert. CogenerationiSelf-generation
• Electric Utility Deregulation. Regulatory Compliance
PAUL D MIXON Ph D PEo Doctorate in Engineeringo Over 12 Years Engineering Experienceo Experienced Regulatory Engineero Experienced Expert Witnesso Electric Utility Industry Specialist
Contact:
fDr. Paul MixonP.O. Box 3338
~State University. AR 72467(501)-972-2088E-mail: [email protected]
23.0 36.5 7437.8 32.4 7427.0 35.1 7433.8 33.8 7438.9 31.9 7225.0 41.7 7217.6 27.0 7428.4 24.3 7427.0 28.4 74
53.4 42.7 436s47.3 45.9 423s48.3 47.1 435s45.8 47.0 430s46.7 48.0 435s41.2 46.7 437s37.6 42.7 426s31.9 40.0 423s46.2 46.0 435s
40.529.737.832.429.233.355.447.344.6
3.96.94.67.25.312.119.728.17.8
White RespondentsBlack White Both Total
14.3 51.4 34.3 70
Which lawyer is takenmore seriously byjuries?
4.9 30.4 64.7 447s
Which lawyer is takenmore seriously byjuries?
Which lawyer is takenmore seriously byjuries?
Race of the LawyerBiack White Both Total
see "Attorneys" page 29
s: significant difference in the two groups
s: a significant djtference between the two groups
6.4 33.6 60.0 535
Black RespondentsBlack White Both Total
Black RespondentBlack White Both Total
Which lawyer would youhire with a legal probleminvolving...Wills/InheritanceMalpracticeDivorce/Child CustodyCar AccidenVTrafficSetting up a BusinessSexual HarassmentDiscriminationAce. of Racial DiscAce. 01 Sexual Disc
White RespondentBlack White Both Total
Which lawyer would youhire with a legal probleminvolving...WillsllnheritanceMalpracticeDivorce/Child CustodyCar AccidenVTrafficSetting up a BusinessSexual HarassmentDiscriminationAce. 01 Racial DiscAce. of Sexual Disc
Fairness in the Law ProfessionThere was a significant difference in the
way Ihal black and white respondents perceived anomeys. A majority of blackrespondents indicated that white attorneyswere laken more seriously by juries lhanblack attorneys. Over six in len whiterespondents said that bolh black and whiteanomeys were laken equally seriously byjuries.
526519531529530532520517529
25.9 29.127.7 26.853.3 20.217.4 30.419.8 30.662.6 16.434.6 40.231.1 37.343.3 43.3
45.145.526.652.249.621.125.231.112.9
they would use a while anomey and Ihosewho said thaI either race was acceptable.
Significant differences were foundbetween black and white respondents intheir responses. White responses werealmost evenly splil bel ween indicalingwhite attorneys as a preference and indicating that either race was appropriate. Blackrespondents were more likely than whiterespondenls to say Ihat a black lawyer wastheir preference. Compared to whiterespondents, black respondents were morelikely to indicate an opposite race attorneyas a preferen ceo
Race of the LawyerBlack White Both Total
Which lawyer would youhire with a legal probleminvolving...Wills/InheritanceMalpracticeDivorce/Child CustodyCar AcddenVTrafficSetting up a BusinessSexual HarassmentDiscriminationAce. 01 Racial DiscAce. of Sexual Disc
s: asignilicanl difference between the two groups
54.B 11.9 33.3 42
"A ttorneys"to know a while anomey. Also of signifigance is that blacks are more likely thanwhiles to know anomeys of both races.
4.2 82.2 13.6 287s
Black RespondentBlack White Both Total
What is the gender ofthe lawyer you knowpersonally?
10.6 72.9 16.5 340
RespondentsBlack White Both Total
What is the gender ofthe lawyer you knowpersonally?
White RespondentBlack White Both Total
What is the gender ofthe lawyer you knowpersonally?
Respondenls were also asked Iheir racialpreference for anorneys based on type oflegal service required. Responses werealmosl evenly splil bel ween Ihose who said
lS l\! .Irillsallnllf rlU Illi
Race of the lawyerBlack White Both Total
Which lawyer is judgedmore by appearance thanabilities? 25.3 23.2 51.4 525
in contrast, a majority of whites said thatboth races were equally likely to be judgedbased on appearance.
Total75s
Total104
Total2t
White22.7
White42.9
White28.8
If judge is black-who has advantage?Respondents
Black71.2
Black RespondentsBlack57.1
White RespondentsBlack77.3
"Attorneys"As in the case of gender issues, the rea
sons given by respondents for perceptionsof bias on the pan of juries was not veryuseful. Most whites gave answers indicating that they believe American societygives more acceptance and credit to whiteattorneys. Blacks gave a variety ofresponses with no clear pattern.
Announcing the Association of
Benson, Robinson &Wood, P,L,C.Attorneys at Law
p.o, Hox 37902020 KJoyce Blvd., Ste, 2
~'ayetteville, AR 72'702-3790
s: significant difference between the two groups
s: significant difference between the two groups
Black RespondentsBlack White Both Total
Race of LawyerBlack White Both Total
White RespondentsBlack White Both Total
In your perception,which lawyer...Works harder 35.1 16.0 48.9 481Keeps clients wellinformed 18.1 27.0 54.8 485Advocates legal reform 35.4 25.7 38.8 474
see "Attorneys" page 38
General Attitudes About LawyersFinally, subjects were asked about
their general attitudes toward lawyers andhow these altitudes might vary by race. Amajority of black respondents said thatblack attorneys: I) work harder; 2) advocate legal reform; 3) are involved in community work and charities; 4) give freelegal aid to the poor; and 5) charge less.White respondents attributed positivequalities to their race less frequelllly andwere more likely to indicate that the two
races were no different.
Which lawyer is jUdgedmore by appearance thanabilities? 41.7 25 33.3 72
Which lawyer is jUdgedmore by appearance thanabilities? 22.7 22.9 54.4 436ss: signiflC3J11 difference between the two groups
Total82s
Total31
Total115
White84.1
White88.7
Whrte100.0
If the judge were white, both black andwhite respondents were likely to think thatattorneys of the same race would have anadvantage. While there was agreementbetween black and white respondents. significantly more blacks than whitesexpressed the bel ief that white lawyers hadan advantage before a white judge. So fewrespondents were willing to explain whythe race of the judge gave one attorney anadvantage over another that their responses were not usable.
Arkansan survey subjects were nextasked about the appearance of· attorneys:"Which lawyer is judged more by appearance than ability?" Blacks and whitesagain differed significantly in their perception of how attorneys are perceived basedon race. Blacks were more likely thanwhites to say that black attorneys arejudged more by appearance than ability.
If judge is white-Who has an advantage?Respondents
Black11.3
Black RespondentsBlack0.0
White RespondentsBlack15.9
Societal ViewslDominentGender 37 72CompetencylEducation of Gender 26 8Personal Perception!Experience of Respondent 21 13Identifying with One'sOwn Gender 11 2Geographical Region ofRespondent 5 4Other 0 2Total 100 '100IN) 19 125'lOal may 001 add to 100 due to rounding
s: significant difference between the two groups
Those respondents that indicated thatthe race of the lawyer matters to the judgewere asked which race would have an
advantage if the judge were white or black.Both black and white repondents said thatif the judge were black the black lawyerhad an advantage. Whites were more likely than blacks to so indicate.
Does the race of the lawyer matter to the jUdge?Respondents
Yes No Tolal238 76.2 508
Black RespondentsYes No Total42.5 57.5 73
White RespondentsYes No Total21.2 78.8 416s
Judges were much more li.kely thanjuries to be viewed as fair by respondents.Both blacks and whites were likely to indicate that the race of the lawyer does notmatter to the judge. Nevenheless, therewas a difference between black responsesand white. Whites were significantly morelikely than blacks to say that they believedthat the race of the attorney has no influ
ence of the judge.
Reasons why one gender has an advantage overanother gender when the jUdge is female.
PercentMale Female
I'all "Ii Ur lrkmll 1,IM)~r tl
TIME FOR CHANGEby Diane Schratz Holitik
he setting wasArkansas,1957. As thedoors to thethen segregated GibbsElementarySchool wereopening forJoyce Will
iams, the doors to Little Rock's CentralHigh School were being forced by courtorder to open for the first nine AfricanAmerican students to attend. Little didJoyce Williams know that twenty yearslater, the doors of the Arkansas SupremeCourt would open willingly for her to bethe first African-American law clerk towork al the court.
In 1977, the atmosphere and mechanicsof the coun were somewhat different thannow. Although then, as now. seven justices sat on the coun, each justice al thattime had only one law clerk and one secretary. Each chamber was separate, andthere was lillie interaction between thestaffs. This was the system when JoyceWilliams Warren came to work at theArkansas Supreme Court with newlyelected Justice Darrell Hickman in January1977.
Joyce Williams Warren graduated fromthe University of Arkansas at Little RockSchool of Law in 1976. With her husband's encouragement, she applied for aclerking position with Judge Hickman,who was still a chancellor at the time. buthad been elected to the Arkansas SupremeCourt without opposition in November.
Judge Hickman asked Judge Warren,who describes herself as an average toabove-average student. to come in for aninterview. Justice Hickman described hisinitial impression of her from the interview: "She impressed me. She had adelightful personality and had goodgrades." Judge Warren got the job andjoined the court staff as his first law clerk,an interim position that would last fromJanuary until August of that year.
Justice Hickman did 1101 know that
11 T"lII,hllill.lw!t, rill Illi
Judge Warren would be the first AfricanAmerican clerk on the coun staff when hehired her. What he did soon realize wasthat he had hired a ·'dependable, hardworking" attorney. who was also a finewriter. When asked about her participa-
"Justice John Fogelman,
who served on the court
during this time, recalled
that Joyce Williams Warren's
coming to work at the court
was taken 'as a matter of
course; there was no
atmosphere of opposition:
Judge Warren never thought
in terms of being the first
African-American clerk
herself. Once she reached
the court, she too found that
she did not experience any
opposition or controversy.
However, there was some
fu . "con slOn...
tion in his transition, Justice Hickmansaid. "She was a big help to me. Her workmade it easier for me. I encouraged her (0
nm for judge herself, and not to wait for anappointment." At a later date, when thenAttorney General Bill Clinton askedJustice Hickman for a recommendation ofJudge Warren for a job, he guaranteed:"She'll never disappoint you."
When speaking of Judge Warren's writing talents, Justice Hickman related a storyabout a writing seminar that he had attended in Florida with Justice George RoseSmith around February in his first year onthe court. The school asked its participants to send their writings back periodically so that the instructor could monitortheir progress and provide comments.Justice Hickman said that he had a policyof letting his clerks draft an opinion oncethey had gotten some experience. Oncewhen Judge Warren was coming to the endof her tenure with him at the court, JusticeHickman sent the instructor an opinionthat she had drafted instead of one of hisown writings. He laughingly recountshow his instructor "sent it back and notedhow much I was improving."
Today, Judge Warren still describes herclerking experience as "a dream of a lifetime." She loved her job, and she thoughtat the time that she would never find a jobthat she liked as much. Happily, her CUT
renl position has dispelled that fear. Sixyears after she left the court, JusticeHickman's prediction came at least partially true. Judge Warren was appointed ajuvenile mediator in 1983 through thecounty judges' offices. In 1987, she wasappointed to the Juvenile JusticeCommission; and, in 1989, GovernorClinton appointed her a chancellor in thenew Pulaski County Juvenile JusticeCourt. Judge Warren was later elected 10
the position without opposition in 1990and 1994, making her the firsl AfricanAmerican elected to a state level trial courtjudgeship in Arkansas. While havingstarted as a clerk for ajudge. Judge Warrenhas come full circle and now has her ownlaw clerk.
Justice John Fogelman, who also servedon the Arkansas Supreme Court duringthis time, recalled that Joyce WilliamsWarren's coming to work at the Court wastaken "as a matter of course; there was noatmosphere of opposition." Judge Warrennever thought in tem1S of being the firstAfrican-American clerk herself. Once shereached the court, she too found that shedid not experience any opposition or con-
tToversy. However, there was some degreeof confusion.
People were aware that Justice GeorgeRose Smith had hired Alma Williams, alsoan African-American, to begin clerking forhim in August 1977. Judge Warren relatesthat this caused a case of mistaken identity because Justice Smith had actually hiredthe first African-American clerk, althoughJudge Warren was the first AfricanAmerican 10 start serving as a law clerk.
Unlike Judge Warren, Ms. AlmaWilliams did not choose the law as an initial career. She allended a Lillie Rock elementary school and graduated fromDunbar High School. She had receivedher college degree in Alabama, but cumeback to Arkansas after graduation. Afterteaching school for almost eighteen years,she decided to return to school when herchildren were teenagers in high school.She had developed a background in civilrights issues and became interested in lawschool after she and her ex-husband filed alaw suit for open housing that went all theway to the United States Supreme COUI1.She appl ied for and was accepted into lawschool in 1973 as one of five AfricanAmerican students. She graduated fromthe University of Arkansas at Little RockSchool of Law in May 1977.
"George Rose Smith felt this was hismission; he would take the lead for othersto follow," Ms. Williams recalls. Havingserved on the court for twenty-eight years,Justice Smith knew that he was strikingnew ground in choosing to hire AlmaWilliams when he offered her the clerkingjob in 1976. Ms. Williams recounts thatJustice Smith told her, "You will be thefirst black law clerk." Other law clerkswho worked at the court while AlmaWilliams was there remember that JusticeSmith was an exacting and detail-orientedjustice. According to Chief Clerk LeslieSteen, Justice George Rose Smith createdmany of the court'S complex operatingprocedures, which today enable the coul1to function better as a whole. He held hisown office and the entire court to highstandards. Indeed, Justice Smith's clerkswere physically located in his officeinstead of in the anteroom library used bythe other justices' clerks. Ms. Williamsrecalls that Justice Smith told her that heexpected thorough research, memoranda,and opinions; however, she went on toelaborate he expected no more of othersthan he expected of himself.
Attorney Dewey Fitzhugh workedbriefly with Alma Williams when he cameto work at the court with Justice GeorgeHoward in 1978. He recalls seeing herdi Iigently working on memoranda, andnotes that Justice Smith appeared to have agood relationship with her. At the time, hefelt that Justice Smith's confidence in Ms.Williams seemed to make the atmospheremore accepting towards him also. Mr.Fitzhugh recently reminisced, "I don'tknow that she knows it, but she did a lotfor me. I gained some strength and confi-
"Having served on the court
for twenty-eight years,
Justice Smith knew that he
was striking new ground in
choosing to hire Alma
Williams when he offered
her the job in 1976. Ms.
Williams recounts that
Justice Smith told her, 'You
will be the first black law
clerk.' Ms. Williams recalls
that Justice Smith told her
that he expected thorough
research, memoranda, and
opinions; however, she elab
orates that he expected of
others no more than he
expected of himself."
dence in her presence. It meant a lot to meto see another African-American workingat the court at lhat time." He remembersfeeling that they were under additionalpressures to set a standard because theywere the only African-American lawclerks at the court.
After her clerking experience, Ms.Williams went to work for Entergy
Corporation, where she served as managerof community relations and special assistant to the vice-chairman of the corporation. Today, she is recently retired aftereighteen years with Entergy. But it ishardly a relaxing retirement, since she iscurrently busy as a partner in a personneland consulting business with her son. Sheundertook the responsibility of being theexecutive coordinator of the fortiethanniversary of the Central High Schoolcrisis.
Reflecting on her time at the court, Ms.Williams remembers that a lot of peoplethought that Justice Smith would not actually hire her, but he told her that "we needto do this."
Although her job with Justice Smithwas demanding, Ms. Williams describesher year of clerking for him as "a wonderfu I experience."
Lyndon Johnson once noted, "Until justice is blind to color, until education isunaware of race, until opportunity isunconcerned with the color of men's skins,emancipation will be a proclamation butnot a fact." It is, perhaps, ironic that it wasin Little Rock, the symbolic battlegroundfor school integration, that two outstanding women became the first AfricanAmerican clerks to Arkansas' highestcourt, without any suggestion that theirhiring was out of the ordinary. Indeed, itwas not until this article was being prepared that Judge Warren even knew thatshe held such a place in Arkansas legalhistory.
Other African-Americans have sinceserved as clerks for the justices of thesupreme COUf!, as well as for judges on theArkansas Court of Appeals. Other distinguished African-Americans - HaroldFlowers, George Howard, Jr., Andre Roar,Wendall Griffen, Ollie Neal, Perlesta A."Les" Hollingsworth, Richard Mays have served as justices or judges on thesecoul1S in the past 20 years. In all of theseinstances, the doors to the coun have beenopened willingly and these appointmentshave been made without the need for anyoutside intervention. It is in this vein lhatthe Arkansas bar musl continue in a spiritof openness because, as Justice Smith said,"we need to do this ... ·:·
l'all199i Ur ,lrkma,I,'\\Jrr 31
Official Directory of the Arkansas Bar Association"Your Blue Book of Attorneys - Since 1935"
Names, addresses and telephone numbers for virtually all of the legal community
The Table of Contents includes the following:
Ant.naa. Bar A.,oelationU S Govemment
Executive BranchLegislative Branch
U S SeNltor.U 5 Repr••entatlves
Judicial BranchU S Suprema CourtU 5 Courts of App"'1
Eighth Circuit (AR, LA, MN. MO. NE. NO, SO)U S Court of Appea', - Federal CircuitU S Court of Appaa's tor the Armed Forc••U S DI,trict Courts Jurl,dlctfon.U S DI.trict Courts
e.-tern District of Mans••We,tam DI,trict of Artansa.
U S BankNplcy CourtlE.,tem .. W.,tam DistrictsAUng O"'e..
U S Prob.tlon OfficeE..tam District of Arkan,..We,tem District of Arkan,..
U 5 Court of Fadera' ClaimsU 5 Court of Intamatloll8! Trad,US Tax Court
Oepartment of H..lth &. HUmlin Sarvlc•• Raglon ISDepartment 01 Interior
Bur.au of Indian Afhll,..Oepartment 01 Justice
AttonMiY GaneralAntItrust DlvtalonDrug Enforcement AdmlnlatrlltJon New OriNna OM.tonFede,..l Bureau 0' InwatlgationFede,..l Bureau 0' Prlso". South C.ntral AigionImmlgrlltlon " Nllturallzatlon Servtce East,rn FtlglonUS Attomer.0U S MIIr.hII • ServtceUS Tru.tee'. Offtce, Region 13
Oepartment 0' LAborOfflce 0' Worker'. Compe".atlon Program.Occupational Safety end HMIt,.. AdmInistration
Department 0' Trea.uryBureau of Alcohol, Tobacco end Are.rm.Internal Rewnue ServtceInternal Rewnu. Servtce, Mld.tate. RegionInternal Rewnue Service, AR-OK DI.trictU S Customs Servtu, Gult cue
Department ot Vetera". AffairsSocial Security Admlnl.tratlon, Reolon e
Tlme Zone. and Telephone Area Code. MapSc:OOol. ot LAwArkanua State Government
executive OfflcersGeneral Asaambly
Senator.House of Repre..ntlltlva.
Stat. Agencle.Attorney General'. OttlceArkan••• Code Revl.lon Comml••lonOapartment ot Correction.
Taxation Oepartmentll
Internal Revenue Service, AR-OK DI.trlctDepartmant of Anance & AdministrationArkan.a. Public Servtce Commlulon
Court Section - Arkan...Supreme CourtCourt of Appeal.Admlnl.tratlv. Offtc. of the CourtsJudicial Discipline" olaablllty Comml••lonCircuit CourtsChllnc:ery CourtsJuvenll. CourtsProbate CourtsCounty CourtsCourts of Common Plea.Municipal CourtsJustice. of the PeaceCounty Quorum CourtsCity Courtsponce Courts
Profe.slonal AuoclatlonsAmerican A••oelatlon of Law lIbrllrie.American Bar A••oelallonA.soclatlon of legal Admlnl.tratoraAs.oclatlon of Reporter. ot Judicial oeel.lonsA••oelatlon of Trial Lawyers of Americalegal A.sl.tIInt Management A••oclatlonlegal Secretllrle. International, Inc.National Anoclatlon of Criminal Delen.. LawyeraNational As.oclatlon of leoal A••I.tanu:, Inc.National As.oclatlon of leoal Secretarte.NIItional As.oclatlon of Women LAwye,.NIItional Court Reporter. As.oclatlonNational FederaUon of Parllleoal A.aoclatlonaArkanaa. Aa.oclatlon of lagal Seeretllrl••Arkanaa. Anoclatlon of Women LawyarsArkansa. Bar A••oclatlon
Executl .... CouncilBar District.StanHou.e of oelegala.Section Omcer.Standing" Special Commltt.e.Arkan.a. 8IIr FoundationArka"..a IOlTA Foundation, Inc.Arkanaa. Law Revtaw " Bar As.ocletlon JournalArkanaa. Volunteer Lawye,. for the Elderlylocal" Specialty Bar A••oclatlonaCalendar 0' Evenla
Arkan... Pro.ecutlng Attomeya A••oclatlonArka"... Trial Lawye,. A••oclatlon
Arkan..s County MIIpCity-County UstAttorney Alphllbetlcal Ro.ter StetewldaArm Alphabetical Rosier Stal.wldeAttorneys, Roater by County, CityOut of State Attorney.Aelds or PracticeMediatorsBiographical U.tlng.Clauifled Advartislng Section
Bank" Trust Officer.
(Also Available on CD-ROM or Floppy Disk)
LEGAL DIRECTORIES PUBLISHING CO., INCP.O. BOX 189000 • DALLAS, TX 75218-9000
Toll Free (800) 447-5375 • Fax (214) 324-9414
Young Lawyers Section Report
An Update on YLSby SCOIf Morgan
N TS AND BOLTSDon't miss the annual "Bridging the
Gap" seminar which will be held at theALR Law chool in the Herschel
Friday Counroom ovember 13·15,1997. Come and learn everything younever learned in law school, particularly some practical aspecls of practicinglaw. Those of you licensed to practicefor two years or less, may register forIhe seminar for only $25.
As co-chair for the seminar, DaveHodges (501/374-2400) and JohnMyers (501/663-4700) have PUI togeth·er an impressive slate of speakersincluding Federal Court Judge BillWilson, Judge Wendell Griffen, H.T.Moore, John Everett, Sam Perrolli andBobby McDaniel.
One hair of Ihe course will be a sub·sl,antive overview covering areas suchas domestic relalions, personal injuryand workers' compensation. The second half will focus on Ihe proceduralaspect of practicing law and will coverdiscovery tools, circuit and municipalpractice and trial strategies.Approximately 15.5 hours of CLE areavailable.
The seminar will end with a cocktailpany al Juanita's at 5:00 on November15. Watch for the "Bridging the Gap"brochure in Ihemail or call theArkansas Bar Center at (501) 3753957. We'll see you there!
WELCOMEI EW YO G LAWYERS
Congralulations 10 all of Ihe sur·vivors of lhe Arkansas Bar Exam!Those of you who plan 10 practice inArkansas are invited to become pan ofthe Young Lawyers Section of theArkansas Bar Association. You are a"young lawyer" for the first five yearsof practice or ulllil you lurn 36,whichever is later.
If you would like to become involvedin any of Ihe projects sponsored by theYoung Lawyers Seclion, contact any ofthe following committee chairpersons:
Disaster Relief: Baxler Sharp,870/734-4060; Hospice: JonannRoosevell, 501/376-2011; Comm·unications: Cindy Grace Thyer,870/932-4522; Mentor Program: ToddGreer, 501/376-2011 or Kathy Cloud,501/372-0800.
MENTOR PROGRAMThe mentor program is having its fall
kickoff at Juanita's at 5:00 p.m. onovember 15. If you are a young
lawyer and you would like to volunteerto be a "mentor" to law students al theFayeneville or Linle Rock campus,conlaCI Todd Greer, 501/376-2011 orKathy Cloud, 501/372-0800.
o THE MOVEFrank Arey, of Conway, Arkansas,
was appoinled to the Arkansas Coun ofAppeals by Governor Huckabee onMay 8, 1997, to finish the lerm of thelale Judge James Cooper.
Judge Arey served as Chief LegalCounsel 10 Governor Mike Huckabeefor a year before his appointment, andhas been active in the Young LawyersSection, serving on the ExecutiveCouncil from 1994 to 1997. While amember of the YLS, he panicipated inLaw Day, and co-chaired the BridgingIhe Gap Seminar in 1993 and 1994.
In discussing his appoinlment, JudgeArey said Ihe only drawback 10 joiningthe court was leaving GovernorHuckabee's office. In private practicein Brinkley, Little Rock, and Conway,1110s1 of Arey's appellate experiencewas before the 8th Circuit. Of theArkansas Coun of Appeals, Judge Areysaid, "I have been very impressed withhow hardworking and helpful all of thejudges and their staffs have been."
Judge Arey has spoken publiclyabout encouraging litiganls to requestoral arguments before the court. Heoffered this advice to young lawyersconsidering an appeal: "I would lellyoung lawyers not to quickly give up
the chance 10 talk 10 the coun abouttheir case. If they know it is not a novelsituation, or if the controlling authorityis clear, then maybe oral argument isunwise. But otherwise, it is a valuableand under-utilized tactic on appeaL"
HATS OFFTo Colli McKiever who staned a
general practice in Fayeneville April I,1997. To Jim Bradbury for his recentpannership at Barren & Deacon inJonesboro. To James A. Simpson, Jr.for making panner al Lighlle, Beebe,Rainey, Bell & Simpson in July, 1997.
BIRTHSCongratulations 10 AI Thomas, and
his wife, Sancy, on the binh of theirsecond child, Alison Anne, born May 6,1997; and to Ed Siaughler, and his wife,Sherry, on the binh of Iheir first child,Jackson Payne, on April 28, 1997.
MARRIAGES/ENGAGEMENTSCongratulations and best wishes to
Dave Hodges, and his wife Sara whowere married June 21, 1997.':'
Medical Records
Review
MD., J.D. with experience
in PI and medical
malpractice.Will evaluate
cases, locate experts, and
provide litigation support.
CALL 376-0747
rlllilli ne IrllllJl LaIIw II
Shielding VolunteersFrom Tort Liability
Congress Expands the Safety Zoneby Frances Fendler Rosenzweig,
Professor of Law, University of Arkansas at Little Rock School of Law
Once upon a time, rhe manager of aUtrle League baseball team in NewJersey reassigned a IO-year-old player from shortslOp 10 the aLIIfield.While playing ,he outfield. ,he boywas stmek in the eye by a fly ball. Theboy's parellls sued the manager on lheground thar the manager "failed torecognize that the boy was a borninfielder." IStories such as these prompted the
enactment of the Volunteer Protection Actof 1997,2 which President Clinton signedinto law on June 18. The new Federal Actdelineates circumstances in which volunteers of philanthropic or civic or governmental organizations are protected fromlort liability. It preempts inconsistent statelaws, except for state Jaws that providegreater protection for volunteers}
Congress' purpose in enacting theVolunteer Protection Act was to encouragethe volunteerism that is essential to theoperation of many social service agencies,educational institutions, and other nonprofit organizations and governmentalentities. The Arkansas General Assemblywas motivated by similar concerns when itenacted analogous statutes protecting volunteers from tort liability--the ArkansasVolunteer Immunity Act4 and the State andLocal Government Volunteers Act 5 Thisarticle will discuss the new FederalVolunteer Protection Act first and then tumto its effect on Arkansas law.
It is important to note that the newFederal Act and this article focus on thepotential tort liability of volunteers. If avolunteer commits a tort which renders theorganization for which he was acting vic-
II He lrllllll li"er Fill 1m
ariously liable, the organization must lookto state law for relief,6 including state-lawdoctrines of charitable immunity7 and governmental immunity.8 Moreover, theFederal Act does not protect volunteersagainst liability to the organizations whichthey serve.9
The Volunteer Proleclion Act of 1997The "volunteer" protected by the new
Act is defined as "an individual performingservices for a nonprofit organization or agovernmental entity who does not receive(A) compensation...or (B) any other thingof value in lieu of compensation. in excessof 5500 per year..." To be protected by theAct, the volunteer must be acting for a"nonprofit organization" or for a "governmental entity." "Nonprofit organization" isdefined as any tax-exempt organizationdescribed in section 501(c) (3) of theInternal Revenue Code or, broadly speaking, any other bona fide philanthropic orCIVIC nonprofit organization. to"Governmental entity" is not defined. Forthe sake of clarity, from now on the ternl"organization" will be used to mean both"nonprofit organization" and "governmental enlity."
The broad immunity granted by thenew Act is found in section 4(a), whichprovides. with certain exceptions, that "novolunteer of [an organization] shall beliable for harm caused by an act or omission of the volunteer on behalf of the organization" if the prescribed conditions aremet. These conditions are:(I) The volunteer must have been actingwithin the scope of his responsibilities inthe organization at the time of his act or
omission.(2) If appropriate or required, the volunteer was properly licensed. certified, orauthorized to perform the work he did.(3) The harm was caused by no more thanordinary negligence. The volunteer is notimmune from liability for harm caused "bywillful or criminal misconduct, gross negligence, reckless misconduct, or a conscious, flagrant indifference t.o the rights orsafety of the individual harmed by the volunteer." I1(4) The harm was not caused by the volunteer's operation of a motor vehicle. 12
Even if a volunteer is not immune fromliability under section 4,13 if he was actingwithin the scope of his responsibilities tothe organization, the Act restricts the availability of punitive damages and abolishesjoint and several liability for noneconomiclosses. Punitive damages are not availableagainst a volunteer unless the plaintiffproves by "clear and convincing evidence"that the harm was proximately caused bythe volunteer's "willful or criminal misconduct, or a conscious, nagrant indifference to the rights or safety of the individual harmed."14
With respect to joint and several liability for "noneconomic loss," section 5 provides that a volunteer defendant "shall beliable only for the amount of noneconomicloss allocated to that defendant in directproportion to the percemage of responsibility of that defendant...for the harm .. .',t5The trier of fact is required to detenninethe volunteer defendant's percentage ofresponsibility for the plaintiff's harm16
"Noneconomic loss" is defined to include"losses for physical and emotional pain,
suffering, inconvenience, physical impairment, mental anguish, disfigurement, lossof enjoyment of life...and all other nonpecuniary losses of any kind or nature." 17Noneconomic loss is contrasted to "economic loss," which means pecuniary loss,including lost earnings and other employment benefits, medical expenses, replacement services loss, and loss of business oremployment opportunities. t8
The New Federal Act'sEffect on Arkansas Law
The primary Arkansas statutes concerning volunteer liability--the ArkansasVolunteer Immunity Act l9 and the Stateand Local Government Volunteers Act20-set up a peculiar scheme. They grant thevolunteer immunity against liability forordinary negligence, but only if there is noinsurance coverage. If there is insurance,the volunteer is liable for his conduct, buthis liability is limited to the amount of theinsurance coverage. The effect is to permitan injured person to sue the negligent volunteer and, in effect, to recover damagefrom the insurance company.
For example, the Volunteer ImmunityAct provides that a "qualified volunteer" isprotected from liability except "[w]herethe qualified volunteer is covered by a policy of insurance, in which case liability forordinary negligence is limited to theamount of the coverage provided.....21
Under the State and Local GovernmentVolunteers Act, "Volunteers in state service may enjoy the protection of the state'ssovereign immunity to the same extent aspaid staff.',22 The "paid staff' are"immune from liability and from suit,excepr 10 rhe exreflf rhar rhey may be cov·ered by liability insurance, for damagesfor acts or omissions, occurring within thecourse and scope of their employment.,,23
It is likely that these "liable to theextent of insurance" provisions are preempted by the Federal Act. The FederalAct preempts state laws "to the extent thatsuch laws are inconsistent with this Act,except that this Act shall not preempt anyState law that provides additional protection from liability relating to vol unleers .. .',24 The Arkansas scheme of denying immunity to volunteers who haveinsurance is surely inconsistent with theFederal Act's grant of immunity to volunteers without regard to whether they haveinsurance. Similarly, Arkansas' denial ofimmunity to insured volunteers does not
provide those volunteers "additional protection from liability." While the Arkansasscheme on its face protects volunteersfrom liability beyond the amount of theirinsurance coverage, those who are suedwill suffer the inconvenience of beingforced to answer and defend the suit, andwill likely suffer uncompensated economic losses in the form of time missed fromwork25
The Federal Act changes the law relating to volunteer liability in Arkansas inother, less fundamental ways. The moresignificant of these changes include:(1) Expanding the set of volunteers whoare protected against liability;26(2) Providing immunity against a largerclass of potential plaintiffs;27 and(3) Raising the standard of proof for punitive damages to clear and convincing evidence28
ConclusionThe new Federal Act, by preempting
much of Arkansas law on the subject, simplifies and broadens the law governing tortliability of volunteers. It answers manyquestions which the Arkansas statutesleave unanswered--including the questionwhether a lawyer serving as a director of anonprofit philanthropic corporation is protected against liability for ordinary negligence to persons harmed by the lawyer'sadvice to the corporation.29 Assumingthat the new Act passes constitutionalmuster,30 it should have the effect thatCongress intended, to encourage volunteerservice.•:.
ENDNOTESI. A Bill Entitled the "VolunteerProtection Act of 1987": Hearings Oil S.929 Before rhe Subcomm. on. Caurrs andAdministrarive Practice of the SenareComlll. all the Judiciary, 100th Congo 177(1989) (statement of Dr. Creighton J. Hale,president and chief executive officer ofLittle League Baseball), microfomled onSup. Docs. O. Y4.J89/2:5.hrg.1 00-1 074(Congressional Info. Serv.).2. Pub. L. No. 105-19, III Stat. 218 (to becodified al 42 V.S.c. §§ 14501-14505).3. However, the Act pennit states, byenacling specified legislation, to "opt out"of its coverage with respect to any civilaction against a volunteer in which all parties are citizens of the state. Jd. § 3(b). Inaddition, the Act permits states to make
see "Shield ing" page 36
Friday the 13th(February 13, 1998)1st AnnualArkansas
TrialPracticeInstitute
6.0 eLE HoursEmbassy Suites,Little Rock, AR
III'U~l'illll 111i1U1I1'I'S•
.Il1d~I' .Iullll SII'III11I
\\illsllIlI 111'1111I11I111111
Fall 199) He lrkmas L'"llr l~
ACCOUNTANT/ECONOMIC ANALYSIS
Certified Public AccountantCertified Business AppraiserCertified Fraud Examiner
• Business Valuations
• Personal Injury Damage Analysis
• Divorce (Property & Child Support Issues)
17. Id. § 6 (3).18. Id. § 6 (I). Economic losses arerecoverable only to the extent allowedunder applicable state law. Id.19. Ark. Code Ann. §§ 16-6-101 to -105(1994), ome"ded by 1997 Ark. Acts 276.20. Ark.CodeAnn.§§21-13-101 to-III( 1996).21. Id. § 16-6-105(1)(1994).22. Id. § 21-13-108(b).23. Id. § 19-10-305(a) (1994) (emphasisadded). The tonured history lying behind[his statute is described in Lisa B. Tobin.
Ole, Bly v. Young. Beaulieu v. Gray, andCarter v. Bush: The Arkansas StateEmployee Immlllliry Trilagy, 41 Ark. L.Rev. 893 (1988).24. Volunteer Protection Act § 3 (a).25. The Act would, however, permitArkansas 10 require, as a condition of limiting volunteers liability. that the nonprofit organization or governmental entity provide insurance or some other financiallysecure source of recovery for persons whoare hanned by a volunteer's actions. Thepoint is 10 guarantee that the organization,not the volunteer, will be able to pay forlosses. Id. § 4 (d) (4).26. The Federal Act extends protection tovolunteers serving not only non-profitorganizalions Ihal are tax exempt undersection 501 (c)(3) of the Internal RevenueCode, but also to "any not-for-profit organization which is organized and conductedfor public benefit and operated primarilyfor charitable. civic, educational. religious,welfare or health purposes" and whichdoes nor commit hate crimes. CompareVolumeer Protection Act § 6 (4) (b) wirltArk. Code Ann. § 16-6-103 (2) (1994).The legislative history states. by way ofexample. that the new Act's protectionextends to "trade and professional associations and other business leagues which areexempt from taxation under seclion 501(c) (6) of the Internal Revenue Code." SeeHouse Report, supra note 13.27. The Arkansas Volunteer Immunity Actrestricts the class of potential plaintiffs;the plaintiff against whom protection isgranted is "one who is a participant in. ora recipient. consumer, or user of, the services or benefits of a volumeer...'· Ark.Code Ann. § 16-6-105 (I) (1994). TheFederal Act contains no such restriction.By way of illustration, if the plaintiff waswalking beside a golf course when a Boy'sClub volunteer golf instructor negligently
see "Shielding" page 37
ereign immunity of state of Arkansas);Ark. Code Ann. § 21-9-301 (1996) (political subdivisions of state granted immunityfrom liability except to the extent there isliability insurance coverage); see alsoArk. Code Ann. § 23-79-210 (1992)(direct action statute).9. Volunteer Protection Act § 4(b).10. Id. § 6(4). To qualify as a "nonprofitorganization," the organization cannot"practice any aClion which constitutes ahate crime referred to in subsection (b)(I)of the first section of the Hate CrimeStatistics Act (28 .S.c. 534 note)." Id.II. Id. § 4(a)(4).12. Id. The Federal Act goes on to specifically exempt from its proteclion misconduct (I) that constitutes a crime of violence or act of international lerrorism forwhich the volunteer has been criminallyconvicted: (2) that constitutes a "hatecrime"; (3) that involve a exual offensefor which the volunteer has been criminally convicted: (4) that involves misconductfor which the volunteer has been found tohave violaled a Federal or State civil rightslaw; or (5) where the volunteer was underthe innuence of alcohol or drugs at thetime of the misconduct. hi. § 4 (f).13. Volunteers who are not immune fromliability are those who were guilty of grossnegligence or worse. or who caused damage by driving a motor vehicle, or whowere not properly licensed to perform theactivity which caused the harm. Repon ofthe House Comminee on the Judiciary,Volunteer Protection Act of 1997, 105thCong., 1st Sess., H.R. Rep. No. 105-101,dissenting views <http://frwebgate.access.gpo.gov/cg...;/diskb/wais/data/10530
njLrepons> (hereinafter "House Repon").14. Volunteer Protection Act § 4(e).15. Id. § 5 (b) (I).16. Id. § 5 (b)(2).
COllrt-Appointed • Regular Court Appearances
11510 Fairview Road, Suite 100Little Rock, AR 72212-2445
Phone: (501) 221-9900Fax: (501) 221-9292
email: [email protected]
Richard L. Schwartz
"Shielding"volunteer immunity subject to certain conditions, e.g., requiring that organizationsprovide a financially secure source ofrecovery for persons who might be injuredby a volunteer's actions. Id. § 4(d).4. Ark. Code Ann. §§ 16-6-101 to -105(1994), amellded by 1997 Ark. Acts 276.5. Ark. Code Ann. §§ 21-13-101 to -III(1996).
Arkansas has a hodge-podge of otherstatutes granting volunteers immunityfrom liability in narrowly defined circumstances. E.g., Ark. Code Ann. § 8-7-101(1993) (granting immunity to volunteerswho assist 31 a discharge or clean up ofhazardous materials); Ark. Code Ann. §12-75-128 (1995) (granting immunity tovolunteer emergency service workersunder the Arkansas Emergency ServicesAct of 1973): Ark. Code Ann. § 12-83-104(1995) (granting immunity to emergencyservices volunteers under the EmergencyVolunteer Reserve Act of 1995): Ark.Code Ann. §§ 16-5-101 to -102 (1994)(granting immunity to volunteer fire fighters); Ark. Code Ann. §§ 16-120-101 to104 (Supp. 1995) (granting directors ofnonprofit corporations and members ofgovernmental boards and commissionsimmunity from vicarious liabilily): Ark.Code Ann. § 17-95-101 (1995) (the "GoodSamaritan" law). Because these laws arenol designed to encourage volunteerismacross a broad spectrum of philanthropicand governmental programs, they are notspecifically addressed in this anicle.6. Volunteer Protection Act § 4(c).7. See, e.g., Masterson v. Stambuck, 321Ark. 391,400-03,902 S.W.2d 803, 809-11(1995); Williams v. Jefferson HospitalAss'n, 246 Ark. 1231. 442 S.W.2d 243(1969).8. See, e.g., Ark. Const. an. 5. § 20 (sov-
II Ut IrullJl La~}tr I'allilli
Product Review"Shielding"
hit a golf ball which struck and injured theplaintiff, the volunteer would not be protected under the Arkansas Act, but ~ nowprotected by the new Federal Act.28. See National Bank of Commerce v.McNeill Trucking Co., 309 Ark. 80, 91-92,828 S.W.2d 584, 589-90 (1992) (Dudley,J., concurring) (arguing that Arkansasshould adopt clear and convincing standard of proof for award of punitive damages.)29. See Ark. Code Ann. § 16-6-105(4)(1994). Under the Federal Act, the answeris "yes"; the Federal Act grants protectionto all volunteers that satisfy the standardsfor protection, without treating lawyers (orany other class of people) differently. SeeVolunteer Protection Act §§ 4-5, 6 (6).30. See generally City of Boerne v. Flores,65 U.S.L.w. 4612 (June 25,1997); UnitedStates v. Lopez, 514 U.S. 549 (1995).
Frances Fendler Rosenzweig is a professor of law at the Unl\'ersity ofArkansasar Lilrle Rock School of Law.
easy to use and simulates manual researchas closely as anything on the market.
One of its best features is the N-Lineservice. With a modem connected to at.elephone line and Ihe computer. subscribers can update their library with current information, and t.he procedure is virtually effortless. As rapidly as infonnalion is disseminated today, it's imperativethat lawyers use a computer research product that integrates currelll cases andstatutes into the research material and
limit to the extenl possible additionalsearches through on-line or internetsources. Anot.her bonus with the ArkansasCD is the addition of current eighth circuildecisions all a quarterly basis."
Maggie NewtonMatthews, Sanders & Sayes
''In my finn I'm in charge of research.ot a day goes by that I do not tum to
LOIS forsee "Product Review" page 38
INCALTERNATIVE DISPUTE REsOLUTION
Sid McCollum, President.:. Over 24 years in a general and varied practice as an attorney.:. 6 years experience as a Circuit Judge in the State of Arkansas.:. PrOViding full-time ADR services in all fields of law
throughout Arkansas and surrounding states.
Bentonville501-271-2237
Call for more information,or to schedule an initial
consultation.
Little Rock501-224-1190
MEDIATION
ARBITRATION
MINI-TRIALS
SUMMARY TRIALS
EVALUATIONS
PRIVATE JUDICIAL SERVICES
Law OfficeInformation Systems
The company was founded in 1987 byattorney Kyle D. Parker with the intent ofproducing affordable electronic lawlibraries. LOrS began with CD-ROMproducts and introduced its databases onthe Internet in September 1996. LOIS is amajor technology innovator in legal publishing. The company was the firsl legal
publisher 10 produce a comprehensive lawlibrary on CD-ROM (CaseBase-Arkansas,1989). It was also the first legal publisherto offer access to complete law librarieson the Internet. What follows are testimo
nials from real life LOIS users.
Product Review
Stanley D. Rauls"The LOIS CD is a real benefit 10 any
lawyer -- especially one who graduatedfrom law school before the proliferationof the personal computer. The software is
Flll199i TIe ,trimas Ll"yrr Ii
The Law Finn of
BI'idges, Young, Matthews &Drake PLCis pleased to announce
"Attorneys"White Respondents
Involved in community Black White Both Totalwork/charities 24.9 29.7 45.5 519 In your perception,Does unnecessary work which lawyer...to collect fees 13.0 46.5 40.6 471 Works harder 33.3 16.2 50.5 402nGives tree legal services Keeps clients wellto the poor 37.6 22.4 400 510 informed 14.9 29.5 55.6 396sIs more likely to violate Advocates legal reform 34.0 274 38.6 391 nethical rules 9.7 50.6 396 472 Involved in communityCares more about the work/charities 23.1 30.8 46.2 429sclient 18.2 27.1 54.7 494 Does unnecessary workFiles an unnecessary to collect fees 11.7 48.2 40.1 384slawsuit 15.2 42.1 42.7 473 Gives free legal servicesCharges the least amount to the poor 36.8 21.5 41.8 419sat money 33.5 24.0 42.5 475 Is more likely to violate
ethical rules 8.6 51.9 39.5 385s
Black Respondents Cares more about the
Black White Both Total client 15.1 28.9 56.0 405s
In your perception, Files an unnecessary
which lawyer... lawsuit 16.0 41.6 42.4 387n
Works harder 44.3 14.8 41.0 61 Charges the least amount
Keeps clients well at money 32.6 24.2 43.3 393n
informed 37.1 15.7 47.1 70s: sgnilicant difference in the two groups
Advocates legal reform 44.6 21.5 33.8 65n: Illt enough cases to generalize
Involved in communitywork/charities 38.9 23.6 37.5 72Does unnecessary work
References
to collect fees 22.2 36.1 41.7 72CBSfThe New York Times, "CBS NewsINew
Gives free legal servicesYork Times 0.1. Simpson Poll," June, 1994,
to the poor 46.6 27.4 26.0 73Ann Arbor Michigan: ICPSR
Is more likely to violateCBSfThe ew York Times, "CBS NewslNew
ethical rules 18.3 45.1 36.6 71York Times OJ. Simpson Poll #1," July, 1994,
Cares more about theAnn Arbor. Michigan: ICPSR.
client 37.1 21.4 41.4 70 CBSfThe New York Times, "CBS NewsfNew
Files an unnecessary York Times OJ. Simpson Poll #2," July, 1994,
lawsuit 14.3 41.4 44.3 70 Ann Arbor, Michigan: ICPSR.·:·
Charges the least amountof money 43.9 19.7 36.4 66
315 East Eighth Ave.P.O. Box 7808
Pine Bluff, AR 71611(501) 534-5532
"Product Review"researching a point of Arkansas law. LOISupdates its CD-ROM disks quarlerly, butwith the N-Line update, I feel confidentthat ['m not missing important case lawIhat might affect my research, eitherfavorably or adversely.
"I've been using LOIS for several yearsand have become proficient in using itssearch fields. This is one of the features Ilike the most. By being able to tailor asearch to a specific field, I am able tolocalize pertinent cases that meet mysearch criteria and am able to hone inquicker on the issue at hand.
I recently upgraded to the Windows version of LOIS. Although the old versionwas user-friendly, my new Windows version is even beuer. Win95 users willappreciate the enhanced use of the rightmouse button.
"One trick that I like to use with LOISinvolves inserting the same search expression in both the' Headnotes' field as wellas the 'Majority Opinion Text' field. Thisway, when I read a headnote that fits myresearch criteria, I can use the 'Next Hit'feature to take me to the portion of theopinion which discusses my issue.Otherwise, [ go on to the 'Next HitDocument' to continue my research."
.:..:..:.
.:..:..:.
Charlie Owen,Gill Law Firm
"With respect to computerized legalresearch tools, Arkansas lawyers have several options available to them. My criteriafor selecting a vendor involved the following factors: cost, coverage, ease of use,updating capabilities and technical assistance. And with all things being equal, [prefer to do business with an Arkansascompany. Thus, my initial decision tosubscribe to LOIS Professional Library,Arkansas Series was an easy one and thatsubscription has been renewed for the lastthree years because: LOIS provides themost comprehensive coverage for the dollar including Internet access with no hidden costs; LOIS is user-friendly and provides chronologically accomplished userssuch as myself an easy transition fromhard-bound book research to electronicretrieval; LOIS technical assistance hasbeen prompt and good for the few times Ihave needed it.
Kudos to Kyle Parker and his group forbeing an innovative leader in this area ofcomputer technology!"
James L. Moore, IfIMichael J. Dennis
David L. SimsR. Scott MorganJeffrey H. Dixon
Cary E. YoungJames C. Moser, Jr.
John P. Talbot
has become an associate of the finn
F.G. Bridges (1866-1959)Frank G. Bridges, Jr. (1906-1973)Paul B. YoungStephen A. MatthewsTed N. DrakeJoseph A. StrodeJack A. McNuilYTerry F. Wynne
John I~ Talbot
18 ne lrklllas LIM)er FIIII!!1
Committee & Section News
"Committee & Section News" is anupdate report imended 10 inform themembers of the Association of currentactivity. YOllr volunteers are workinghard for yOIl and Ihe Association.Please note: activity reported has /lotnecessarily been recommended 10 theExecutive Council as yet.
TASK FORCE ON LEGALRESEARCH, PUBLICATIONS &TECHNOLOGYby Slark Ligon
In June, President-Elecl JackMcNulty appointed this new TaskForce and charged it with the responsibility of evaluating the Association'soptions with regard to its future relationships with companies in the business of legal research, publications andtechnology. The Task Force includesrepresentatives from the Association'sFinance Committee, ElectronicInfonnation Committee, and EditorialBoard for Systems and Handbooks.
As a substantial and growing publisher itself, through its "Handbooks"and "Systems," the Association mustprepare now to meet the future needs ofits members in an era of new and rapidly-changing technologies, especially inCD-ROM and Internet products. Inmid-1995 the Association entered into afive year agreement with LOIS, Inc. forIhe exclusive righl for LOlS to publishCD-ROM versions of the Handbooksand Systems. This relationship, alongwith proposals from other vendors suchas LEXJS-NEXIS and the West Group,is being reviewed by the Task Force.
Financial pressures on theAssociation will continue to increase asthe needs for new and expanded services meet the realities of dues andmembership growth limits. Severalother stat.e associations have recentlyrestructured their publications in amanner that has led to substantialincrease in income stream and moreand better producI offerings. Theirefforts are being studied by your TaskForee.
The Task Force members, MarkAllison, Lynn Foster, William A.Martin, Margaret Newton, Charles C.Owen, Jacqueline Wright, StanleyRauls, George Plastiras, and ChairSlark Ligon, all of Little Rock, Judge
Leon Jamison of Pine Bluff, MurrayClaycomb of Warren, and Associationstaff Don Hollingsworth, Judith Grayand Adrienne Brietzke have alreadymel several times. In addition 10
reviewing vendor proposals and testingproducts on an individual basis, theTask Force is designing what in effectwill be an outline for a request for proposals to vendors interest.ed in a relalionship with the Association Ihal willbeller meet our members needs. If anyAssociation member has an idea oropinion for the Task Force to consider,please address it to Executive DirectorDon Hollingsworth at the Associationoffice.
PUBLIC INFORMATIONCOMMITIEEby Dent Gilchel, Chair
Our Committee has divided intothree subcommittees, with theBrochures and Pamphlets subcommitlee chaired by Marcia Mcivor, theMedia Relations subcommittee chairedby Stacey DeWitt, and the SpecialProjects subcommittee chaired by JohnTull.
The Committee, along wilh severalolher invited participants, recently helda three-hour brainstonning session atUALR's Baum Decision SupportCenter. From this session there wasdeveloped a prioritized list of recommendations from the Committee,regarding the Association's publicinfonnalion and public relations programs.
Our Media Relations Subcommitteechair Slacey DeWitt has drafled aMedia Relalions Plan for theAssociation. After the plan is reviewedand approved by the Committee, il willbe recommended to the Association.
PARALEGAL COMMITIEEby Jan Dewoody Scussel, Chair
The Paralegal Commillee has developed a proposed rule relating to the utilization of legal assistants/paralegals.Highlights of the proposed rule includeselling minimum qualifications whichmust be met before an individual can bedesignated as a legal assistant, definingthe parameters within which paralegalsmay be ulilized, and delineating ethicalguidelines applicable 10 an attorney's
use of legal assistants. It is hoped thatimplementation of this proposed rulewill help in addressing and controllingIhe unauthorized practice of law as wellas related issues of professional misconduct. The Committee's ultimategoal is 10 present the rule to IheSupreme Court for a per curiam orderwilh approval of the House ofDelegates. If adopted, Arkansas wouldjoin Ihe over 30 slates Ihal have alreadyimplemented rules governing the activities of paralegals/legal assistants.
A copy of the proposed rule can berequested by conlacting Ihe ArkansasBar Association office al 1-800-6095668 or Jan DeWoody Scussel,Paralegal Committee Char, P.O. Box8064, Pine Bluff, Arkansas, 1-870-5340667. The Committee welcomes anycomments from association membersregarding the issues addressed in itsproposed rule.•:.
Adrienne Brietzke
Adrienne Brietzke is the new
Direclor of Marketing and Special
Programs for the Arkansas Bar
Association as well as Ihe Editor for
The Arkansas Lawyer, The
Newsbllllelin and The Membership
Directory. Adrienne fonnerly worked
wilh the Arkansas Trial Lawyers
Association.
fall 1997 The Mkmas 1,lwier 19
have to do with
Rule 1.15 of Arkansas'Model Rules of ProfessionalConduct (hereafter, MRPC)requires lawyers to hold theirclient trust funds in intereSlbearing accounts, either forthe benefit of the individualclient or the Arkansas IOLTAFoundation.
The Supreme Court ofArkansas created the ArkansasIOLTA program in 1984, InRe IOLTA, 283 Ark. 252, 675S.W.2d 335 (1984), to providefunds for legal services to thepoor, projects that improve theadministration of justice. andlegal education. nder theprogram, interest is paid onnominal or short-term trustdeposits held in a lawyer's orlaw firm's client trust account,with the interest remitteddirectly by the financial insti-tution to the Arkansas IOLTA Foundation.In October of 1994, the Arkansas SupremeCourt modified Arkansas' MRPC 1.15 tomake the IOLTA program mandatory forlawyers who handle qualifying funds.Q: Does Rule 1.15 of Arkansas' MRPCapply 10 all lawyers licensed 10 praclicelaw in Arkansas?A: Yes. IJyou are licensed to practice lawin Arkansas, you are required to complywith the Model Rules of ProfessionalConduct including Rule 1.15. However,that does not mean that all licensedlawyers must have a client trust account.Some lawyers will be exempt from maintaining a client trust account by virtue ofthe nature of their practice, the type ofposition or public office they hold, orbecause their law office is physicallylocated in another state.Q: Who must mai1l1oin a client tntSt accowu?A: Arkansas lawyers, or their firms, whoreceive, maintain, or disburse qualifyingfunds. Qualifying funds are funds belonging to a client or third person that thelawyer has in her possession in connectionwith a repre entation. To detemline if thefunds should be placed in a client trustaccount, ask yourself whether you cantreat those funds, when received, as yourown. If the answer is no, then your obligation is to place them in a client trustaccount.Q: What duries do I have wilh respect 10
retemion of cliem funds?
IOLTA:What is It?
What does it
my clients'money?
by Lisa Melton
A: Arkansas' MRPC require an altomeyto hold clients ' funds in an account separate from the altomey's or firm's operatingaccount. Rule 1.15 requires thaI all fundsbe held at interest, with the interestpayable either to the client or to the IOLTAFoundation. To comply with their ethicalobligation, lawyers must place clients'funds in the lawyer's client trust accountuntil distribution. For client deposits thatare large enough or to be held for a longenough period of time to warrant the costof administering an individual account,lawyers are obligated to set up a separateinterest-bearing account for the benefit ofthe individual client. Should the clientchoose not to be paid interest, then thefunds should be placed in the IOLTAaccount discussed below. Generally, however, the deposits are not large enough orheld long enough to generate interest thatwould offset the costs of maintaining aseparate account. Consequently, attorneysroutinely pool clients' funds in a singleclient trust account. either the attorneynor the client can receive interest, so theinterest is paid to the Arkansas IOLTAFoundation to support law-related, charitble and educational activities. Thisaccount is commonly referred to as thelawyer's IOLTA account.Q: May I place Illy clielllS' funds ill allinterest-bearing aCCOU111 and keep theimerest?A: No. Arkansas' MRPC 1.15 prohibits a
lawyer from deriving any benefit from clients' property.Q: Does participation in theprogram depril'e my cliems oftheir imerest money?A: o. The program was notmeant to utilize interest moneyfrom all client trust deposits only those nominal in amountor to be held for a short periodof time. a client is deprivedof any practicable incomeopportunity. If these depositswere placed in separate, inter-est-bearing accounts, theadministrative costs to the lawfirm and the service charges ofthe financial institution . coupled with the resulting tax liability to the client - would morethan offset any income earned.Q: Call lawyers slill deposilindividual diem funds imo separate illlerest·bearing accounts
for Ihe bellefil oflhe clienl?A: Lawyers can and should continue toestablish separate, interest·bearingaccounts for individual clients' fundswhere the Slim is large enough or when thetime of the deposit is of sufficient durationto justify the cost of opening, closing andadministering the account. Any interestthat accrues belongs to the client. Factorsto consider include the amount of interestwhich the funds would earn during theperiod they are expected to be held, andthe predicted cost of establishing andadministering a separate account for Lhefunds (including the cost of the law firm'sservices).Q: Where should a lawyer draw the linebetween which funds call be deposi/ed ill aseparate 'r"st accoulll for an individualclient and which fimds should be deposited ill lite firm's IOLTA accol/III?A: Whether the amount of interest anaccount will generate justifies the expenseof opening and maintaining a separateaccount for the client is a detenninationentirely within the lawyer's discretion.TI,ere are no established guidelines.Q: Wltal if my ballk refuses fa opell allIOLTA aCCOl/lIIJor my praclice?A: Should a lawyer's bank refuse to offeran IOLTA account, then the allomey willneed to move his or her trust account to abank that does offer IOLTA accoulllS.Q: What if my cliem truSf accoum is rarelyl/sed alld typically Itas a small balance?
·10 Ue IrulwlJMjrr rail 1m
A: Every lawyer is required to establishhis or her c1ien! trust account as an IOLTAaccount. However, if the account losesmoney because the interest earned is lessthan the reasonable fees and chargesassessed, then the IOLTA Board may,either in response to a request or on itsown, exempt the lawyer from maintainingan IOLTA account. An exemption is subject to periodic review.Q: Do I have 10 lIotify my eliellls Ihallheirfllllds wil/ be placed ill olllOLTA accolIlII?A: The Arkansas Supreme Court requiresthat clients be given an opportunity toknow about (OLTA. To that end, theFoundation suppl ies each law firm withnotice that must be posted in a conspicuous place in your law office.Q: What do I have 10 do 10 comply wilhRule 1.15?A: Contact the Arkansas IOLTAFoundation for the proper form to set upyour IOLTA account. Use the account inthe manner required by Rule 1.15, andreturn your executed IOLTA compliancestatement along with your annual fees tomaintain your Arkansas law license.Q: Hall' is Iile program ellforced?A: Arkansas lawyers must certify annually that they have complied with Rule 1.15.If a lawyer or law firm fails to comply withRule 1.15. the lawyer will be referred tothe Supreme Court Committee onProfessional Conduct for whatever actionthe Committee deems appropriate.·:·Lisa Meltoll is the Execwive Director ofIOLTA.
Presidellt's ReportContinued from Page 3
of professional ethics; 3) it is alsorequired that a request include a concisememorandum setting forth the requesting individual's own research and conclusions conceming the ethical questionsinvolved; and 4) there must also be astatement in the request that the matter isnot the subject of a pending disciplinaryproceeding.
All of the advisory ethics opinionsissued by the Committee are published in"The Arkansas Lawyer" or other publications of the Arkansas Bar Association.The two most recent opinions were summarized in the last AssociationNewsBulletin. The summaries, as wellas the opinions themselves, do not disclose the name of the attorney whorequested the opinion.
As opinions of the Arkattsas BarAssociation, these advisory opinions willprovide helpful guidance to our members. However, it must be recognizedthat the opinions are advisory only andsince they are not opinions of theArkansa Supreme Court, they are notlegally binding interpretations of theArkansas Model Rules of ProfessionalConduct.
Anyone interested in receiving a copyof the procedures which govern theissuance of the opinions should contactour Executive Direclor, DonHollingsworth.•:.
MediationThe proven and effective
method for resolving disputes.
James M. Hall
A competent, qualified andexperienced mediator.
••••20 Years Experience
in Law Practice
••••Hundreds of Administrative
Hearings, Bench and Jury Trials
••••Graduate of Attorney
Mediators Institute
••••BAlM, GUNTI, MOUSER, DE SIMONE & ROBI SO
IS PLEASED TO A OUNCE THAT
KYLE HAVNER HAS JOINED THE FIRM AS A ASSOCIATE.
Kyle is a 1991 graduate of the University of Arkansas School of Law. He has been inprivate practice in Pine Bluff since 1994 and is formerly a deputy prosecutor in theProsecuting Attorney's Office of the 11th Judicial District West Oefferson and LincolnCounties). In his privale practice he handled cases involving family matters, child cus
tody issues, divorce cases, bankruptcies, criminal defense work and representation of
respondents in mental, drug and alcohol commitment hearings.
BAlM, GUNT], MOUSER, DE SIMONE & ROBI SO
Attorneys at Law301 East Sixth Ave., Pine Bluff, Arkansas 71611
501-534-2941
Fax 501-534-4776
Three Years Mediation andArbitration Experience
••••Resume, References and Rates
Available Upon Request
••••
James M. HallMediation & Arbitration130-C orth College Ave.
Fayetteville, Arkansas 72701Phone: (501) 521-3535
Fax: (501) 521-2059
rlllilli fie Irhll1l La~J!f 1\
The Lawyer disciplinary actiolls are writ·ten alld provided by file Supreme Court ofArkansas' Commiuee 0" ProfessionalCondllct.
Mr. Jeffrey H. KearneyPine Bluff, Arkansas
A letter of caution was issued to JeffreyH. Kearney for lhe violation of ModelRules 1.3, 3.4(c) and 8.4(d) based upon lhePer Curiam complaint on appellant JamesHollis Guss. The letter of caution wafiled with lhe Clerk on July I, 1997. TheseRules state. in pan, that a lawyer shall actwith reasonable diligence and promptnessin representing a client: a lawyer shall notknowingly disobey an obligalion under therules of a tribunal excepl for an openrefusal based on an assertion that no validobligation exists; and, a lawyer shall notengage in conduct that is prejudicial 10 theadministration of justice.
As altorney for Appellant James HollisGuss, Kearney limely filed a nOlice ofappeal from lhe denial of a petition forpost-conviction relief pursuant to Rule 37.On September 16, 1996, a mOl ion for ruleon the clerk was granted and he was givenuntil October 26, 1996. 10 file a brief.Subsequently, an extension to ovember2, 1996, was given. On December 23,1996. the appeal wa dismissed for failure10 file a brief. On December 26, Kearneytendered a brief contemporaneously withthe filing of the motion for reconsiderationof dismissal and for filing the brief oul oflime. The motion was granted and a showcause order entered. Kearney appearedand entered a guilty plea to the conlemptcitation and accepted full responsibilityfor failure to limely file lhe brief. Kearneypresented mitigation evidence and told theCourt of his intention to implement correclive action by personally calendaringthe deadlines in his law praclice. TheCoun fined him $250 for his conducl inthis appeal.
Mr. David 1'. HenryLittle Rock, Arkansas
A letter of reprimand was issued toDavid P. Henry for the violation of ModelRules 1.4(a), 1.5(c) and 1.15(b) upon thecomplainl filed by George T. Gray. The
It Hr Irhllil Lllljlr rail 1!Ii
lawyer disciplinary actions
leller of reprimand was filed with lheClerk on July 18. 1997. These Rules stale,in pan, thai a lawyer shall keep a clientreasonably informed about the status of amailer and promptly comply with reasonable requests for information; a contingentfee agreement shall be in wriling and shallstale the melhod by which lhe fee is 10 bedeterm ined, and percenlages lhat shallaccrue to lhe lawyer, the lawyer shall provide the client with a written statementslaling lhe outcome of the malter and, ifthere is a recovery, showing the remittance10 the client and the method of its delermination: and, upon receiving funds in whicha client has an interest, a lawyer shallpromptly nOlify the clienl and deliver anyfunds that the client is entitled to receiveand, upon request by the client or thirdperson, shall promptly render a fullaccounting regarding such propeny.
Dr. Gray and his wife hired Henry 10
represent them in a lawsuit against Dr.Barbara Holmes. The lawsuit involved abreach of contract in a real estate matter.He was paid a relainer of $1, 100. The feeagreement was for Henry to receive 40%of any recovery after he relUmed theretainer to Dr. Gray. This agreement wasnever reduced to written fonn. Followinga jury lrial on OClober 4. 1994, Dr. andMrs. Gray were awarded damages in theamount of $4,786. The wrillen Judgmenlwas fi led with the Circuit Clerk onOclober 24, 1994. On December 12,1994, Henry mailed Dr. Gray a trustaccounl check in the amount of $1,246.40.From the dale of lhal payment until lhedate of Dr. Gray's affidavit, which was
ovember 19, 1996, Henry provided nofunher payments to Dr. Gray. Dr. Graymade repeated requesls for Henry to provide him with an accounting of fundsreceived. Henry did not do sO. Dr. Grayretained another attorney to assist him inrecovering any funds from Henry. Henryadvised Dr. Gray's counsel in June of 1996that he would provide lhe funds he hadreceived to him along with a letter ofexplanalion. He did not do so. Dr. Grayalso learned that a Satisfaction ofJudgmenl had already been filed as to lhisJudgment. The Satisfaclion selS OUI thatthe Judgment had been paid in full on orbefore OClober 15, 1995, a full year beforeDr. Gray executed his affidavit of com-
plaint.Henry's response began with an
acknowledgment of the facts concerningthe trial and entry of judgment as stated inDr. Gray's affidavil of complaint. Henryexplained that he was injured in an automobile accidenl on December 18, 1994,which caused him to be basically inactivefor 90 days. The health problem did notresolve itself until after a hospitalization inthe fall of 1995. During this time, heassened that he relied heavily on a formersecretary/office manager for various officefunctions. Henry stated Ihal he was notaware that any payments were received onthe judgment nor Ihal any funds were dueto Dr. Gray. Funher, according 10 Henry.after being contacted by Dr. Gray's newcounsel, he became aware thaI Dr. Graywas concerned about other payments onlhe judgment. Subsequent therelo, Henryexamined the file and checking accountsand learned lhat there was indeed a problem. He averred that he sent a check to Dr.Gray's new counsel on July 8,1996, in lheamounl of $2,582.28. He was nol awarethat it had not been received until hereceived Dr. Gray's affidavit of complaint.He asserted that he had since sent a newcheck. He expressed his underslanding ofthe seriousne sof this matter as well as hisresponsibility for the mailer. He addedthat there was no wrongful intent or purposeful act involved. He explained andjustified the lack of a wrinen fee contracton the grounds that the agreement was nota "pure" contingent fee arrangement.
Mr. David P. HenryLittle Rock, Arkansas
A leller of caution was issued to Mr. DavidP. Henry for violation of Model Rules1.2(a), 1.3, 1.4(a) and 1.4(b) upon thecomplaint by Richard M. Lincks. The letter of caution was filed with the Clerk onJuly 18, 1997. These Rules state, in pan,that a lawyer shall abide by a client's decisions concerning the objectives of represemalion, and shall consult wilh the clientas 10 the means by which they arc to bepursued; shall act with reasonable diligence and promptness in representing acI ient; shall keep a cl ient reasonabl yinfonned about the status of a matter andpromptly comply wilh reasonable requests
for infomlalion; and, shall explain a mailer10 the extent reasonably necessary 10 permit lhe clienl to make informed decisionsregarding the representation.
Mr. and Mrs. Lincks were representedby Henry when a Judgment was filed ofrecord again I lhem in Pulaski CountyChancery Coun on May 28, 1996. TheJudgment was the result of lwo day oftrial. The lrial began in September of 1995and concluded wilh one day of testimonyand evidence in January of 1996. TheCourt's initial decision was to deny theclaims of his clients and those of theopposing party. However, after posl-trialbriefs were filed, the court decided lhatHenry's clients were indebted to theopposing party. The information andrecords provided by Mr. and Mrs. LinckseSlablish thai the precedenl for thisJudgment was sent to Henry by opposingcounsel on or aboul April 15, 1996. Ahearing was set for May 28, 1996, becausethere was some indication thai he intendedto file a leller of objection 10 the Decree.
lawyer disciplinary actions
His signawre does not appear on theDecree so it appears he was nol present atthe hearing on May 28, 1996. AJJ of thepost-trial activity look place with no noticeto Mr. and Mrs. Lincks. They did nOl learnof lhe filed Decree until June 13, 1996. Hedid nol advise Mr. and Mrs. Lincks of theDecree, rather they were infonned of itthrough service of a Writ of Garnishment.On lhe day thai they received lhe Writ, Mr.and Mrs. Lincks lelephoned him, faxedhim a copy of the Wril, requested anobjection be filed 10 the Writ, and direcledthat an appeal be filed. Henry took noimmediate action as Mr. and Mrs. Lincksrequested. The Olice of Appeal was nolfiled by him until afler the garnishmenlwas paid and the Satisfaclion of Judgmenlhad been enlered of record. Subsequent 10
the Satisfaclion of Judgment being filed,he filed an Applicalion for Stay ofJudgment. As the opposing party's counsel pointed out in his response to hisApplicalion, the requeS! was moot.
In his response 10 the Committee,
Henry began by acknowledging representation of Mr. and Mrs. Lincks. He alsoprovided information concerning prejudgment mailers. In the information provided by him, lhere is an explanation thatthe trial was not complel.ed duringSeptember of 1995 so the panies wererequired to return in January of 1996 tocomplete laking evidence. The Chancellorinitially denied the claims of both panies,from the bench. However, following submission of post-trial briefs, the Chancellorchanged his decision, and ruled againslMr. and Mrs. Lincks, finding them liablefor a certain amount. According to Henry,M.T. and Mrs. Lincks' reaction wasextreme. He acknowledged thai theywanted 10 appeal. He asserted that henever felt an appeal would be fruitful. Itwas also his assertion lhal he did nOl havean objeclion to the precedent for Decree,but he did requeS! more time beforeapproving Ihe Decree because his clientswere so upset. Henry stated that he did nOIreceive a copy of the Decree until after the
Professional MediationArbitration Service
• An Arkansas private dispute resolution company providing mediation and arbitration services throughout theState of Arkansas
• Serving the legal profession, business community and insurance industry• Mediations are scheduled to occur within 30 days• Areferral to mediation or arbitration is at no cost to the parties if the session does not take place• Statewide Arbitration Panel of Retired Judges
I,'r lurtlll'r mt,lrtn,1ti"I1. ,I br",hurl' ,'r I" rl'il'r ,I dlsputl' I" I1ll'dldtl"l1 ,'1 ,ubItr,lti"11 ("111,1(1:
Professional Mediation - Arbitration ServiceI'roSt'l'ct Building • 1'(11 \0 Lnil"L'rsit\· AI"L'. • Suite 2(1b • l.ittll' Rock, :\rk<1nS,lS 722(17
Tl'll'phonl': (;(11) bhh-2121 Ll\: (;()J) bbb-2122
Frank S. HamlinDirector, Attorney-Mediator
Ull" 22 'tl"I" I"rt ,Ind (""l11l11l"ll,11 I ili';,lli'HI hf'LTI"lll"UIl'1 I'ill \kdidti"lb ,md Arbitr.lti"ns l'''l1dudl'd
Cr,ldu,lll', TIll' ,\tt"rnl'I'-\!L'di,ll"rs InstItutl'
savings account had been garnished.Again. he stated that he counseled Mr. andMrs. Lincks against pursuing an appeal.He was not aware that Sati faction ofJudgment had been filed the day prior tothe Notice of Appeal that he filed. Funher,according to him, everything Mr. and Mrs.Lincks wanted him to do was done withthe objectives of representation beingaccomplished. He also averred that everyaction was taken with reasonable diligence. As for his communication with Mr.and Mrs. Lincks, he stated that they werewell informed and he did everything in hispower to fully advise and counsel them.
Mr. Michael A. Beltranilillie Rock, AR
A leiter of suspension was issued (0
Michael A. Beltrani for violation of ModelRules 1.3 and 1.I6(d) upon the complaintof Ida V. Foley. The leller of suspensionwas filed with the Clerk on August 14,1997. These Rules state, in pan, that alawyer shall act with reasonable diligenceand promptness in representing a client;and, upon tennination of representation,an allomey shall take teps to the extentreasonably practicable to protect theclient's interest, such as giving reasonablenotice to the client, aHowing time foremployment of other counsel, surrendering papers and propeny to which the clientis entitled and refunding any advancedpayment of fee that has not been earned.
Mrs. Foley slated that on or aboutAugu t 20, 1995, she hired Beltrani to filefor divorce for which he was paid 5500.Approximately two weeks later he told herthat he was taking care of everything. butwhen she next spoke with him around midSeptember he admiHed having done nothing and offered excuses for his inaction.
By the end of September he told Mrs.Foley that the complaint for divorce hadbeen sent to her husband's office for service. Soon thereafter she advised Beltranithat she wished to withdraw the complaintand reconcile with her husband.According to Mrs. Foley he said thaI thatwas fine and he owed her some money.
She has been trying since OClober of 1995to obtain this money and has learned thatno complaint for divorce was ever filed.Mrs. Foley averred that he had on several
·11 Tie .lrimllllMjer 1'111 lUi
lawyer disciplinary actions
occasions either laid her that he wouldsend her the money or deliver it 10 herhome. but he has not kept his word.
The complaint was sent by cenified.restricted delivery mail and he receivedsame on or about September 21. 1996. Hisresponse was due October II. 1996: however, he failed to respond.
Mr. Michael A. Belt raniLittle Rock, AR
A leiter of suspension was issued toMichael A. Beltrani for violation of ModelRules 1.1, 1.3. 1.16(d) and 8A(d) upon thecomplaint by Donna Arrowood. The letterof suspension was filed with the Clerk onAugust 14, 1997. These Rules state, inpan, that a lawyer shall provide competentrepresentation to a client. Competent representation requires the legal knowledge.skill, thoroughness and preparation reasonably necessary for the representation; alawyer shall aCI wilh reasonable diligenceand promptness in representing a client;upon termination of representation. anaHomey shall take steps to the extent reasonably practicable to protect the client'sinterests, such as giving reasonable noticeto the client, allowing time for employment of other counsel, surrendering papersand propeny to which the client is entitledand refunding any advanced payment offee that has no! been earned; and, a lawyer
shall not engage in conduct that is prejudicial to the administration of justice.
Mrs. Arrowood averred that she hiredBeltrani on or about May 22, 1995, to filea bankruptcy on her behalf. She paid him5660 for this service. According to Mrs.Arrowood Beltrani never filed anything onher behalf. She did, at his request, complete Bankruptcy Schedule J: however.MTs. Arrowood stated, since that timeBeltrani has done nothing. As a result ofhis negligence and failure to obtain theprotection of Ihe Bankruptcy Coun Mrs.Arrowood's vehicle was repossessed, aswas her furniture. Additionally, Mrs.Arrowood's ability to maintain continuousemployment has been jeopardized as aresult of her creditors contacting her at herjob. Beltrani has failed to relurn any portion of Mrs. Arrowood's retainer and shehas hired another attorney who is pursuingher legal remedies against him on her
behalf.The complaint was sent by certified,
restricted delivery mail and Beltranireceived the same on July 3, 1996. Hisresponse was due on July 23. 1996. Herequested an extension based on the factthat Mrs. Arrowood had civil litigat.ionpending against him. An extension wasgranted to September 30, 1996. aresponse was received.
Mr. Ronald C. NicholsLittle Rock, AR
A letter of caution was issued to
Ronald C. Nichols for violation of ModelRules 1.3 and 8A(d) upon the complaintby Lamont Bowden. The letter of cautionwas filed with the Clerk on August 18,1997. These Rules state, in pan, that alawyer shall aCI with reasonable diligenceand promptness in representing a client;and, a lawyer shall not engage in conductthat is prejudicial 10 the administration ofjustice.
Mr. Bowden is Nichols' c1iem in anappellate mailer pending before theArkansas Supreme Coun. The appeal isfrom a capital murder conviction. Fromthe infonnation provided by Mr. Bowden,and discerned from the appellate records,it was determined that Nichols filed therecord with the Clerk on December 6,1995. The brief on Mr. Bowden's behalfwas first due on January 15, 1996. Insteadof filing the brief on that date, icholsrequested the first of his four extensions tofile the brief. Mr. Bowden was notified onthese extensions by Court personnel, notby Nichols. The brief was not filed on orbefore the date of the final extension granted to him. The brief was filed two monthafter that date and only after Ihe SupremeCourt i sued a show cause order to him.The Supreme Coun did not find ichols incontempt based on extenuating circumstances involving his daughter. Even afterNichols filed Mr. Bowden's brief, he fileda Motion to Amend following the AttorneyGeneral's request that he be required tocomply with Supreme Coun Rule 4-3(h).TI,e final version of Ihe brief that Nicholsfiled for Mr. Bowden was filed over tenmonths after it was initially due to be filed.
In responding to the complain I,Nichols provided a great deal of informa-
tion about the underlying criminal trialwhich was not pan of the complaint beforethe Committee. According to ichols, following the verdict of guilty. he spent threehours going over objections wilh Mr.Bowden. He also explained that followingthe reading of the verdici he asked to berelieved, but Judge LangslOn refused hisrequest. He averred that he was forced todo Mr. Bowden's appeal and pay for it outof his own funds. It was also his assertionthat he filed the brief prior to the Coun'sShow Cause notice to him.
Mr. William M. HowardPine Bluff, AR
A leuer of caution was issued to M.r.William M. Howard for violation ofModel Rules 1.3. 3.4(c) and 8.4(d) uponthe Per Curiam complaint on appellantDamond Sanford. The letter of cautionwas filed with the Clerk on August 26,1997. These Rules state, in pan, that alawyer shall act with reasonable diligenceand promptness in representing a client; alawyer shall not knowingly disobey anobligation under the rules of a tribunalexcept for an open refusal based on anassertion that no valid obligation exists;and, a lawyer shall not engage in conductthat is prejudicial to the administration ofjustice.
The facls as set out in the Per Curiamopinion referred by the Supreme Coun arethat appellant Damond Sanford was convicted by a jury of capital murder and sentenced to dealh. A notice of appeal wasfiled. Howard received four (4) extensionswithin which to file a brief. Although thefourth extension was stated to be the"final"' extension, Howard failed 10 file abrief by January 12, 1997, the final day 10
do so. On February 21, 1997, Howardfiled a motion for belated appeal, but itwas denied since he did not accept responsibility for the failure to timely file thebrief. An order to appear and show causewhy he should not be held in contemptwas issued. On March 3 I, 1997. Howardentered a gui Ity plea. accepted full responsibility for the failure and offered mitigating circumstances. The Court held him incontempt, fined him and gave him ten (10)days to file the brief.
In his response, Howard stated hibelief that the circumstances leading to the
lawyer disciplinary actions
delay were justifiable. Specifically, heaverred that he had never had a client sentenced to death and he became obsessedwith trying 10 ovenurn his conviction.During this time some intervening eventsoccurred necessitating the several extensions. He stated that the sudden death of afriend and his diagnosis of a medical condition that required medication to controlall added to his difficulties. The brief wascompleted, but because the coun reponerdid not have a complete transcript theCoun issued a Writ of Ceniorari 10 thereporter in order to obtain a completerecord. Howard concluded his responseby admitting responsibility.
Mr. Gary GreenLittle Rock, AR
A letter of caution was is ued to Mr.Gary Green for violation of Model Rules5.5(a), 7.1(a) and 7.I(b) upon the complaint of Eugene Stone Forrester, Jr. Theletter of caution was filed with the Clerkon August 26,1997. These Rules state, inpan. that a lawyer shall not practice law ina jurisdiction where doing so violates theregulation of the legal profession in thatjurisdiction; a lawyer shall not make afalse or misleading communication aboutthe lawyer or the lawyer's services, omitting a fact necessary 10 make the statementconsidered as a whole not materiaUy misleading: and, shall not make a misleadingcommunication that is likely to create anunjustified expeclalion about results thelawyer can achieve, or state or imply thatthe lawyer can achieve results by meansthat violate the rules of professional conduct or other law.
Mr. Forrester is an attorney licensedand practicing in Tennessee. He and hiswife were involved in an automobile accident in Shelby County, Tennessee, wherethey reside. Within 30 days of the motorvehicle accident, Mr. Forrester receivedwritten communication form Greenwherein he attempted to solicit his legalbusiness. This communication violates aTennessee Disciplinary Rule which prohibits such communication within 30 daysof an automobile accident. Green's correspondence offers his assistance. help, andquick. aggressive action in dealing withthe situation. His correspondence gives
the impression that he can provide legalservices to Mr. Forrester in Tenne see.No-where in the correspondence did headvise that he was not licen ed 10 practicelaw in Tennessee.
Green admitted in his response that heis not licensed to practice law inTennessee. He denied engaging in thepractice of law there and funher, deniedthat he was subject to regulations of thelegal profession in Tennessee. He specifically denied that he made any false or misleading communication about his law firm.He also closed his response by asseningthat he had ceased direct mail marketing inTennessee. He also asserted his disbeliefthat anything in his correspondence wasmisleading to Mr. Forrester since he is anattorney licensed in Tennessee.
Mr. Richard J. OrinlasLillie Rock, AR
A letter of caution was issued to Mr.Richard J. Orintas for the violation ofModel Rule 4.2 upon the complaint ofFrank B. Newell. The letter of caution wasfiled with the clerk on Augu t 26, 1997.This Rule states that in representing aclient, a lawyer shall not communicateabout Ihe subject of the representationwith a pany the lawyer knows to be represented by another lawyer in the matter,unless the lawyer has the consent of theother lawyer or is authorized by law to doso.
Mr. ewell represented Dean MarvelConstruction Company in a WorkersCompensation mailer. Dean MarvelConstruction Company was the respondent employer. Orintas represented theclaimant employee in that matter. He sentMr. ewell's client a letter in which hedemanded remittance of attorney's fees.In this same letter, Orintas also threateneda garnishment action if he was not paid byMr. ewell's client. Mr. Newell was notsent a copy of this letter. After learning ofthis correspondence, Mr. Newell wroteOrintas and insisted that he cease communication with his client. Despite thi .Orintas again sent communication directly10 Mr. ewell's client.
In responding to the affidavit of complaint, Orintas asserted thai he contactedMr. Newell's client directly only because
flllilli Tl! .Irbml In]ff Ii
Mr. ewell had not responded to his earlier letter to him. His letter told Mr. Newellwhat action would be taken if the issue ofattorney fees was not settled. He alsoasserted that he never received the letterfrom Mr. ewell advising him n01 10 contact his client. He averred that his firstnotice of the lelter was when he receivedthe fannal complaint from the ExecutiveDirector. He explained to the Committeethat it was his belief that the complaintwas personal, not substantive.
Ms. Laura J. McKinnonFayelteville, AR
A letter of caution was issued to Ms.Laura J. McKinnon for the violation ofModel Rule 1.5(c) upon the complaint ofJohn M. Thornburgh. The letter of cautionwas filed with the clerk on August 29,1997. This Rule states, in part, that a con-
lawyer disciplinary actions
tingent fee agrecment shall be in writing.Mr. Thornburgh hired McKinnon dur
ing August of 1991 to represent him on aWorkers Compensation matter, a SocialSecurity Disability mattcr, and a personalinjury matter. McKinnon's client's understanding of the fee arrangement for thepersonal injury case was that there wouldnot be any attorney's fee unless a recoverywas had. That is a fee contingent on theoutcome of the legal matter. However. Mr.Thornburgh did not execute any writtencontract or document in regard to the feearrangement for the personal injury representation. In June of 1993, Mr.Thornburgh became dissatisfied withMcKinnon's services and tenninated herrepresentation of him in the personalinjury matter. Upon being notified of thetennination, she sent notice of an aUor
ney's lien. A dispute arose about tenns ofher agreement with Mr. Thornburgh. This
dispute could nOI be settled because theagreement was never put in wrinen fonn.
In response to the affidavit, McKinnonacknowledged that she did not have a writt.en contingency fee contract to present (0
the Comminee specifically referring to thepersonal injury maner. She agreed thatshe could not prove one was ever enteredinto relating 10 Mr. Thornburgh's personalinjury claims.·:·
RE: Estate of Carmen K. (C.KJ PowellWe represent the surviving widow of Carmen K (CK) Powell, a resident
of North Little Rock, Arkansas who passed away on July 8, 1994. Anyattor-
ney who was ever contacted by Mr. Powell to prepare a will, drafted a will
for Mr. Powell, or who knows of any attorney who may have been contact-
ed by Mr. Powell to draft a will, please call or write our office.
Deininger &Wingfield1405 Pike Avenue
North Little Rock, AR 72114.(501) 372-3843 or FAX (501) 375-6298.
,II T~ lrkllw Ll~j/r Fall Illi
Regina Whitaker LaidlerRegina Whitaker Laidler, 70, of Hot
Springs died July 16, 1997, at her home.Regina Laidler was active in Arkansas
Bar Association affairs during her fortyyear legal career. She was a Fellow of theArkansas Bar Foundation and was one ofthe fLrst women elected lO the House ofDelegates. She served on numerous comminces and sections and in 1995 was amember of the committee which fannulated the SWlldards for ExamillOlioll of RealEstate Titles in. Arkansas.
She is survived by her sist.er, KayWalton of Wilmington, Delaware. Shewas predeceased by her fom,er husbands,Paul W. Johns and Neil Laidler.
George W. Hartje, Jr.Former judicial district judge and
prominent Conway anorney and civicleader George W. Hartje, Jr., died in July.He was 66.
Mr. Hartje had been a practicing attorney for 40 years. He received his J.D.from the University of Arkansas LawSchool in 1957.
Judge Hartje was a member of the BarAssociation from the time he was admitted to practice. He was elected as a member of the House of Delegates and servedon numerous sections and committeesincluding the Unauthorized Practice ofLaw, Lnsurance Law, International Lawand the Judicial Council LiaisonCommittee~ as well as many other committees.
He served as prosecuting attorney inthe 5th Judicial District and was in privatepractice, after which he was appointed bythen Gov. David Pryor as a Faulkner
In Memoriam
County Municipal Judge in 1977.Hartje became a circuit court judge in
1979 and immediately won the reputationof an innovator.
Hartje is survived by his wife JohnnyeLewis Hartje; four sons, George Hartje ITIof SI. Louis, Bryan Hartje of Conway,Stephen Hartje of Momgomery, Ala., andRobert Hartje of Little Rock; two stepdaughters, Marsha Gilbertson Lewis ofLittle Rock and Robin Lewis Johnson ofPittsburgh; a sister, Marilyn Moores ofRussellville; and seven grandchildren.
Thomas Franklin Meeks, Jr.Thomas Franklin Meeks, Jr., 43, of
Little Rock, died October 7, 1997. He issurvived by his sister Julia Meeks.
Mr. Meeks was a member of theArkansas Bar Association and was a partner in The Trammell Law Finn in LittleRock. He had two passions, the law andaviation which were even greater than thenonnal zeal he had for life, in general.
He took great pleasure in l1ying a 1947Luscombe 8A (the first all-metal singleengine) in circles al eye-level aroundPinnacle Mountain. Hi.kers to the summitwould laugh as he came by, at hyperreduced speed, with his arm out the window, waving as if he were cruising MainStreel. He even chose to reside on an airstrip in eastern Pulaski County.
He died a bachelor, epitomizing theold legal adage that "the law is a jealousmistress." There was no predictability tohis working hours. Tommy could be at theoffice comfortably at 9:00 p.m.• but thenmight l1y to New Orleans to stroll theFrench Quarter, or visit a Tennessee battlefield on a Wednesday afternoon.
He consumed the law in ravenous fashion. Principal reference books had to be athis fingertips, next to his desk.
Tommy insisted that anyone hired inhis law firtn be an "exact fit," and theybecame his family. He had been "adopted" by many friends: at his favoriterestaurant, aircraft hangar, and even thelocal haberdasher who kept him alwayslooking the crisp, quintessential counselor.
He was bitten by the challenge of talking to a jury. On the eve of a trial, youwould find Tommy walking around asmall town in Arkansas, talking to his
client, making sure that if he was eventually beaten, he would not have been outprepared.
As an example of the eternal boy inTommy, a partner's 10-year-old wasentrusted for the day. She later reported toher parents thai she had driven her firstautomobile - a red sports car - downTommy's grass airstrip.
Cecil Boone Nance, Jr.Cecil Boone Nance Jr., a Marion native
and local attorney for Nance & Nance,died recenlly in Memphis.
Mr. ance was known in many circles- as an attorney, political representative,scholar. father. friend and an avid l1y fisherman.
After receiving his LL.B. at theUniversity of Arkansas in 1951, he established his law practice. He was a longtime member and supporter of theArkansas Bar Association, having servedon the Executive Committee and in theHouse of Delegates. He was also a member of numerous sections and committees,including Election Law Revision,Constitutional Reform, Defense ofCriminal Indigents. the JudicialNominations Committee and several others.
Mr. ance was a past president of theCrittenden County Bar Association, andwas also a member of the Arkansas andAmerican Bar Associations, the AmericanJudicative Society and the JudgeAdministration Association.
He is survived by his wife, HarrietMcGee Nance of West Memphis; a daughI.er, Janet Nance of Little Rock; a son,Boone Nance of West Memphis; a sisterDorothy Buchanan of Marion; and onegranddaughter. Anna Leigh ance.
Willard C. Smith Jr.Willard C. Smith, Jr., 54, of Fort Smith
died September 23, 1997, in Fort Smith.Mr. Smjth received his law degree
from the University of Arkansas and hadpracticed law in the Fort Smith area since1969.
A continuous member of the BarAssociation, he was admitled to practicebefore all courts in the State of Ark~Ulsas:the Supreme Court of Arkansas, the
continued on page 48
In Memoriam continued flassifird .\dwl'tising
FOR SALE:Sel of up-to-dale (as of 6-97) Arkansas CodeAnnotated wilh pocket pans and supplements. Costnew - $950.00. Sale price of $600.00. Call (SOt)783-1186.
SECURITY NEGLIGENCESpecial expenise in premise liability, security training and security procedures. Authored four securilYtextbooks. Thiny years combined experience insecurity and law enforcement.Contact Ron Vause 1-800-728-0191.
PAGE28
12141718191920212627282932333536373841414348
AT&TLandTed1 DalaGreat Amer~ InsuranceDavid MillerLegal Nurse ConsullantD~ly &WoodsJohn T. BatesMolly Ply InvestigationsAI~a Thorne-CorkeLOIS, Inc.McAllisterNeblett, Beard, ArsenaullPaul D. MixonRobinson, Wood P.L.L.CLegal Directories PublishingMedical Research InstituteMike ThompsonAccountanVEconomic AnalysisADR,lnc.Bridges, Young &MatthewsJim HallBaim, GuntiProfessional Mediation/ArbitralionMark Perdue' •
SKIP TRACINGILOCATORNeed to find someone? Will locate the person or nocharge/no minimum fee for basic search. 87% success rate. Nationwide. Confidential. Olher attorneyneeded searches/records/repons/services in manyareas from our extensive database. Tell us what youneed. Verify USA. Call roll free 888-2-Verify.
EXPERTExpen testimony provided which relates to theAdministration of programs for persons with mentalretardation or developmental disabilities. Panicularemphasis on the propriety of policies. procedures andindividual lreatment in institutional and communityliving settings related to risk management and compliance with state and federal regulations. WilliamA. Lybarger Ph.D., 316-221-6415.
The Arkansas Bar Foundation acknowledges with grateful appreciation thereceipt of memorial gifts and scholarshipcontributions given in memory of the following individuals from July L, 1997,Ihrough OClober 25, 1997:DONALD J. ADAMS SCHOLARSHW FUND,
IN MEMORY 0'- DONALD J. ADAMS
Bellye L. CurtisIN MEMORY 0'- MRS. BOYCE DAVIS
Judith GrayWalter R. Niblock
IN MEMORY 0'- COREY DENNIS
Judge William R. Wilson, Jr.IN MEMORY 0.- GLENDA HUIE
Judge William R. Wilson, Jr.IN MEMORY 0'- REGINA LAIDLER
Judith GrayIN MEMORY 0'- ROBERT R. LE.-LAR
Ronald A. MayIN MEMORY 0'- TRAVIS MATHIS
Comer Boyett, Jr.IN MEMORY 0'- C.B. NANCE, JR.
Justice John A. and Annis FogelmanMr. and Mrs. Julian B. Fogelman
IN MEMORY 0'- SELMA RATLEY
Judge James M. MoodyIN MEMORY 0.- ROGER SIMPSON
Judge William R. Wilson, Jr.BERNARD AND BUD WHETSTONE
SCHOLARSHtP FUND, tN MEMORY 0.
DALTON WHETSTONE
Judith GrayAdrienne H. Brietzke
munications Commission, 1954-56; andDirector of the Office of AdministrativeProcedure, Department of Justice, 195658. He served as a member of the JudicialConference Subcommillee on SupportingPersonnel, 1975-77, and the AdvisoryCommittee on Appellate Rules, 1978-84.Judge Henley was a Fellow of theArkansas Bar Foundation. In 1984, theJudge J. Smith Henley Scholarship waseSlablished in his honor with the ArkansasBar Foundation.
Judge Henley will be remembered asone of this country's great jurists. Hisdecisions helped to desegregate the LillieRock schools and refornl the Arkansasprisons.
He is survived by his wife of 59 years,Dorothy Ingram Henley; daughters,Wordna S. (Mrs. Tommy) Deere, and JaneK. Henley; grandsons, Jesse T. Deere andDavid E. Deere and his wife, Katie.
Judge J. Smith HenleyJudge J. Smith Henley was born in Sl.
Joe, AR on May 18, 1917, to Ben H. andJessie Genoa (Smith) Henley. He diedSaturday, October 18,1997, at his home inHarrison, AR.
Judge Henley was appointed UnitedStates Circuit Judge for the Eighth CircuitCourt of Appeals in March 1975 and tooksenior judge status in May 1982. Hebegan his career as a judge in October1958 when he was appointed United StatesDistrict Judge for the Eastern and WesternDistricts of Arkansas. He served as ChiefJudge of the Eastern District during hisentire tenure on the district bench.
Judge Henley received his L.L.B. fromthe University of Arkansas at Fayettevillein 1941 and engaged in private practice inHarrison, AR with the firms of Moore &Henley and Henley & Henley from 194154. A continuous Bar Association membersince 1954, Judge Henley was a formerreferee in Bankruptcy for the WesternDistrict of Arkansas, 1943-45; AssociateGeneral Counsel, Federal Com-
Federal Courts in the Eastern and WesternDistricts of Arkansas and the Court ofClaims, the Court of Customs and PatentAppeals, the Tax Court, the FederalBankruptcy Courts of Arkansas andOklahoma and the Supren;e' Court.
Mr. Smith and his wife, Nancy, havethree children: Tripp, Katie and Collier.He is also survived by his mother,Catherine Hoge Gilman of Fort Smith; andtwo brothers, Arthur Hoge Smith ofPortland, are., and David Rollins Smith ofMidland, Texas.
Why
theCNA
acquisition of
Continental
Insurance• •IS Important
to attorneys
Call Rebsamen for more information.Telephone (501) 664-8791Fax (501) 664-9487
'What's in itfor my firm?'
•a managlng partnermight rightly ask.
The CNA Insurance Companies became one ofthe largest writers of lawyers professionalliability insurance in the nation earlier this yearwith their acquisition of Continental InsuranceCo. The CNA member companies now insureover 50,000 attorneys in 49 states.
The Merger makes the CNA more valuable bothto the firms we now insure and to those thatare considering our coverage.
·Combined underwriting expertise enables usto price policies more flexible for small as wellas large firms.
'Greater underwriting resources make itpossible for us to offer coverage for higher-riskpractice specialties.
· Enhanced resources will improveresponsiveness and service.
· Highly focused loss-control services for abroad variety of specialties will continueto be offered and enhanced.
Firms currently insured by CNAcan nowexpect even more value for their premium dollar.For firms not insured with CNA, we candemonstrate how we will perform for you.
The Arkansas Bar Association endorsed ProfessionalLiability Program is underwritten by ContinentalCasualty Company, one of the CNA Insurance Companies.CNA is a registered service mark of the CNA FinancialCorporation, CNA Plaza, Chicago, IL 60685.
Retirement Programs......_----....
D
The ABA Members Retirement Program wasdesigned by lawyers, for lawyers. That' why itprovides the options that today's law finns need.
The Program features a wide selection of investment offerings. plus comprehensive services thatcan eliminate administrative headache and freeup valuable. billable time. These are just a few ofthe reasons why we currently service over 5,000plans in the ABA Members Retirement Program.
OFFICIALLYENDORSED BY
AB~
.V1EMBER·~
RETIREM ",NTPRO(;J".AM
The Program offers comprehensive servicesand features including:
Investments• Core Funds• Structured Portfolios• Self-Managed Brokerage Accounts
Plan Sponsor Services And Assistance• Plan Design And Compliance• Complete Recordkeeping• Required Reporting• Plan Testing
Participant Services
• Account Access Through An AutomatedPhone System
• Ongoing Participant CommunicationPrograms
• IRA Rollover AccounlsIf you're interested in a retirement program
designed around your firm's requirements,call: 1·800·826·8901.
To obtain II prospectus about tile Program. IClirn about charges alld eXI)Cllses or lil>cak wilh a Plan Consultant. call 1-800-826-8901.!feud the prospeelllS carefllll) before you forward or in\'est funds. The ABA Members Hctirement Program is olTere<llhrough Stale Street Bank and Trust COIllI>lllly.
ABA Members lletiremClll Progmm • PO llox 2236 • BostOIl. MA 02107