•APRil 1974

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THE RAMADA INN5101 Towson Ave.Fort Smith. Arkansas646-2931

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A WORDAbout This Issue

This issue was published by the PublicRelations Committee of the ArkansasBar Association. The committee as­sumed the task for several reasons. in­

cluding trying to give Colonel Ranslck amuch-needed break because of hisadditional duties in connection with theopening of the Bar Center.

The Lawyer has been edited byColonel Ransick in his spare time whichin actuality amounts to doing it in timewhen he ordinarily would be at home.The Lawyer is completely self-sustain­ing from a financial standpoint in that theadvertising revenues are sufficient topay the total cost of the publication.Colonel Ransick also manages the ad­vertising campaign. again in his sparetime. which is in and of itself a tremen­dous task.

The committee wanted to publish oneissue and perhaps use this issue to per­suade the mem bers of the AssociatIonthat we can have a quality and informa­tive publication on a quarterly basis. ifthe association is willing to finance It in­

dependently of advertising revenues.The advertising is difficult to sell be­cause of our limited circulation and be­cause of the limited appeal thai apublication concerning lawyers has togeneral advertisers. The advertising intimes past has unfortunately dictated tosome extent the articles within theIssues.

We would like to see the comingissues of The Lawyer patterned afterthis one. This is only possible if themembership is willing to pay for them.We perceive having some advertising inthe lulure issues. but not relying tolallyupon advertising as the financial base ofthe publication.

Our sincere appreciation is expressedto the contributors of the articles. DentGitchell. who served as the advertisingmanager in order to make this issue alsoself-sustaining, and a special thank youto Ron Robinson and Shirley Kennedy ofCranford/Johnson/Hunt for the manyhours devoted to this issue which wereabove and beyond the call.

We hope you enjoy this issue.

Robert T. Dawsonfor the Public Relations Committee(An editor again after 14 years)

April. 1974

APRIL 1974VOL. 8, NO.2

THE OFFICIAL PUBLICATIONOF THE

ARKANSAS BAR ASSOCIATION

OFFICERSJames E. West. PresidentJames 8. Sharp, Vice PresidentJames M. Moody. Secretary-Treasurer

EXECUTIVE DIRECTORC. E. Ransick

EXECUTIVE COUNCILThomas F. ButtDouglas O. Smith. Jr.Robert Hays WilliamsOtis H. TurnerHerman Hamilton. Jr.John A. Davis. IIIW. D. Murphy, Jr.Julian B. FoglemanDavid SolomonJohn P. GillGuy Amsler, Jr.Leonard L. Scott

Ex-OllicioJames E. WestJames B. SharpJames M. MoodyHenry WoodsWilliam R. WilsonDale Price

EDITORIAL COMMITTEERobert O. RossPhilip E. DixonC. E. Ransick

The Arkansas Lawyer

----------- ---------------------------------------,

,

Published quarterly by the Ar1tansas Bar Association.Arkansas Bar Center West Mar1<ham 81 North Con­way lillie Rock Arltansas 72201 Second class post­age paid ailiule Rock, Ar1tansas Subscrlptlon pnceto non-members of the Arkansas Bar ASSOCl8110n$600 per year and to members 52 00 per year In·

cluded In annual dues Any opinion expressed hereinIS that 01 tile authOr and 001 necessarily that 01 lheAJ1l:ansas Bar Assoclatlon. The Ar1<ansas Lawyer orthe Ediionai Committee Contnbutlons 10 The Ar­kansas Lawyer are welcome and should be sent Intwo COPies to the Ar1<ansas Bar CeOler West Mar1<­ham at Non:h Conway Lillie Rock Ar1<ansas 72201

All Il"IQutnes regarding adYeJt.Slng should be sent toThe Arkansas Lawyer above address

(§Ie

ArkansasLawyer

TABLE OF CONTENTS

What's the Real Image

01 Arkansas' Lawyers? , , ....•..•....•..... Dr. Ken Bailey 64

Mysticism John P. Gill 71

New Bankruptcy Rules

Practice Pointers Judge Charles W. Baker 73

Wage Earner Rehabilitation A. L Tenney 75

Law Day U.S.A., 1974 78

Arkansas' Unsung Hero ..................•.......•....•....79

The Legal Prolessional Corporation

in Arkansas George N. Plastlras and Harvey L Bell 81

The Public Delender in Arkansas Don Langston 85

Juris Dictum C. R. HUie 88

Sebastian County Legal Aid System 89

Federal Clerk's Response to the Five Most

Frequently Asked Questions E. A. Riddle 91

Replevin in Arkansas - Act 144 01 1973 Gnffln Smith 93

Title VII 01 Civil Rights Act 01 1964 Virginia Tackett 95

Oyez-Oyez 97

Executive Council Notes .....•............ James M. Moody 98

President's Report James E. West 108

76th Annual Meeting .....•.......•....•...................109

In Memoriam ............•..•.............................110

Law School News ..........•..... Director J. Steven Clark 112

Lawyers' Mart ...........•................................112

p. 72

p. 70

Practice POinters

MystiCism

..

Unsung Hero p. 78

April, 1974 63

What's the REAL Image

of Arkansas' Lawyers?

by Kenneth O. Bailey. University of Arkansas

(NOTE: Dr. Kenneth D. Bailey is an assistant professor in the Department of Political Science at the University of Arkansas atFayetteville. Originally from Nebraska, Dr. Bailey was awarded a B.A. in 1965 and an M.A. in 1967 by Midwestern Universityand completed his doctoral studies in 1969, at the University of Maryland. Dr. Bailey has a broad background in researchand his professional affiliations include membership in the American Association of Public Opinion Research, AmericanAssociation of Political Consultants, Institute for Social Research/Center for Political Studies, Roper Public Opinion Re­search Center and Center for the Study of the Presidency. Dr. Bailey would like to express his thanks and appreciation toMr. James A. Henderson, an MP.A. candidate in judicial administration at the University of Arkansas at Fayetteville, for hisundaunted support throughout the entire project, and to Mrs. Margie Bryant and Area Market Research Associates of LittleRock for her moral and their financial and promotional support. Area Market Research Associates, one of the largest publicopinion and marketing research firms in the Middle South, is a joint sUbsidiary of First National Bank in Little Rock andCranford/Johnson/Hunt & Associates, Little Rock-based advertising, marketing and public relations firm. The author takessale responsibility for the analysis and interpretation of the findings presented within this paper.)

The Solar System has no anxIety aboutIts reputatIon. -Ralph Waldo Emerson

Today no group. no organlzation. noInstitution can afford to be complacentabout Its reputation. Indeed. all aspectsof our sOGiety - particularly those thathave tradItionally commanded the hIgh­est respect - are beIng Increasinglypressured to JustIfy themselves or tochange. This IS true whether we are talk­Ing about colleges. Congress. the PresI­dency. the medIcal profession. bUSiness.the military. the medIa. or the legal pro­feSSion.more than ever has become Intenselydisconcerted with the professions andprofessionalism. In essence. there hasbeen a fleXing of muscle by a multItudeof sell-Interest groups which have fo­cused their crlllcal concern and de­creasing trust and confidence not only::)0 our governmental InstItutions. butalso on the groups. organizations. andassociations traditionally accepted by

64

socIety. e.g., the church. the schools.the family. and many of the profeSSionslisted above.

Faced With increasingly more com­plex institutions and problems that seemto rapidly shrink the uniqueness of theindividual. people tend to explodeagainst any available barrier. When theprice of food goes up. they picket thesupermarkets: when new demands forhealth care surface, they Vilify the doc­lors: when colleges dIsappoint students.they besiege the administration offIces:and when scandals like Watergateemerge (whIch, for the moment. over­shadows such other controversial legalprofeSSion Issues as no-fault auto in­surance and pre-paid legal services),they discredit lawyers

Philip Lesly has noted that there areno "havens" from the assault of critiCismand IndignatIon from the public. whetherwarranted or not. He has stated that"There IS no refuge from the activistCritics who hold no truths to be self-evl-

dent certaInly not our legal system.the courts. or the rule of law.'" There­fore. the legal system. too. has beensubjected to the onslaught of public criti­cism and to what has most aptly beenlabeled the "new consumerism. "2

Thus. today more than ever. the lead­ers of our professional associationsmust recognize the faci Ihat publiC atti­tudes toward an organizatIOn are Signifi­cantly Influenced by what that profeSSioncontributes to society and by how wellInformatIOn about these contributions IScommUnicated to the general publiCLarge groups WIth loosely linked mem­bership (whether profeSSional or tradeassOciatIOns) find It particularly difficult(0 establish and maintain a favorablereputation. Many such organizatIonshave resorted to public relatIOns tech­niques to develop and bolster their "pub­liC image" (witness the energy relatedIndustries). It is this author's contentIon.however. that prior to any attempt atimage building. an organIzation {or In-

The Arkansas Lawyer

dividual) must be cognizant of existingdispositions prepossessed by an in·terested public. Since a considerablebibliography already exists on publicimage building and a comprehensivework was recently published on publicrelations law,3 this study focuses on therelatively unfurrowed research area ofpublic attitudes toward the legal profes­sion ..l

SCOPE AND OBJECTIVESThere is an awareness among mem­

bers of the legal profession that a"mood" or "apprehension" eXistsamong the general public about lawyersand the jUdicial system. In addition, It isgenerally Ihought that many people failto take full advantage of available pro·fessional services and needed legal ad­vice. Therefore. the scope of the studymay best be identified by a series ofquestions based on an analysis of thepublic need for. and reaction to. legalservIces. For example: What is thereputation of the lawyer in his own com­munity? That is, what standing and re­spect do lawyers command or enjoy? Towhat extent is the profession meeting itspublic obligation? What percent of thepublic uses legal services? Does thepublic recognize the need for legal ser­vices? Are people making the most oflegal services? Or. do most individualssimply wait until "after the fact'" to seeklegal advice? What. in fact. are themajor legal problems and what are themost effective methods available formotivating the public toward an earlierrecognition of these problems and theneed for seeking legal counsel? Has theBar Association made any real effort toanswer these questions? Has the Barmade any real attempt to advance theprofessional position and prestige of itsmembers? Are there. perhaps. profes­Sional and ethical problems facing theBar itself? These are only a few of themany possible questions raised by theabove mentioned assertions.

A two-staged stUdy has beenlaunched as an attempt to gather thenecessary information for answeringsome of the questions proffered. ThiSpaper is based on the results of a state·wide survey of the general public's atti­tudes toward the legal profeSSion. Afollow-up survey of the members of theArkansas Bar Associallon will attempt 10measure lawyers' perceptions of thelegal profeSSion. ItS role In society. andthe responsibility of the Arkansas BarAssociation. both 10 the IndiVIdual law­yer and the profession as a whole. Byadopting this approach. it is hoped thatany "breach" or "gap" between lawyersand the various publics can be identi­fied. Once Identified. if In fact they doexist. it IS believed that Bar Associationprograms can be instituted to closethese gaps and. thereby. make better

April, 1974

and more acceptable legal servicesavailable to the public.

The ultimate objective of such a studyis to provide ways and means of helpingthe legal community serve the publicmore efficiently and thereby improvingthe status of the profession and the posi­tion of its members. This primary goalmight best be accomplished by con­centrating on two other important ob­Jectives: (1) improving the quality oflegal services. and (2) increasing publicrecognition of the need for legal coun·sel. A reasonable approach might weHbe a Bar Association program orientedtoward: (1) educating the public to thebenefits of legal services. (2) motivatingthe public toward going to a lawyer for"preventive legal advice," (3) develop­ing better methods of establishing andimproving attorney-client relationships.and (4) improving follow-up seNices forthe client. The ultimate success of sucha program is based on the assumptionthat a majority of lawyers can be moti­vated to a new sense of appreciation fortheir own expertise and thereby upgrad·ing the profession in the eyes of the pub­lic.

The nature of the inquiry of the sur­veys will be limited to three generalareas: (1) the attitudes of the generalpublic toward the legal profession, (2)the attorney-client relationship. and (3)the improvement of specifiC legal ser­vices. Although many questions can beanswered only upon the completion ofboth surveys. the following serve as aprobable basis for consideration of thesuggested areas of inquiry: professionalcompetency; publiC responsibility; pro­fessional trustworthiness; and economicaspects of the profession.

METHODOLOGYThis study is based primarily on in-

Dr. Kenneth D. Bailey

formation obtained from lengthy tele­phone interviews of the general publicthroughout the state of Arkansas. Theinterviews were conducted during theweek of February 11. 1974. by profes­sionally trained and experienced inter­viewers under the direction of Area Mar­ket Research Associates (AMRA) of Lit­tle Rock. In order to Insure that the datagathered would be representative of totalstale population (18 years and over), amUlti-stage area sampling method wasused so that all segments of the popu­lace would be proportionately rep­resented.s The sampling method em­ployed was as follows: Each of Ar­kansas' four congressional districts wassubdivided into the smallest possiblecomponents, i.e.. the political townshipswithin each county of the district. Withineach district ihe townships were ar­ranged by categories. or "strata." eachbased on the total population of the in­dividual townships. (See Table 1)

Utilizing U.S. Census Bureau data, thepercentage of each district's total adultpopulation within each of the givenstrata was determined. The alloted num­ber of interviews were then apportionedamong the various strata according toeach stratum's percentage of the totaldistrict population. Interviews were dis­persed randomly among the townshipsaccording to a modified clusteringtechnique reSUlting in 477 completed in­terviews distributed throughout the state.For example. Strata VI in the third con­gressional district contains 133 "units"(political townships). representing 29%of the distnct adult population. and thus,requiring the drawing of 73 samples.Since time and cost prohibited the inter­viewing of respondents in each of the133 townships. a computer program.RANOU. was used to randomly select 30

65

~If~~t:'~ .<5,

"~

(

~I

townships from which a minimum ofthree and a maximum of seven mler4

views were conducted dependmg uponthe weighted population of the specIficIDwnshlp6

TABLE I

Population by StrataI - 50.000 plus

II - 25.00 1-50.000III - 10.001-25.000IV - 5.001-10.000V - 2.501-5.000VI - 501-2.500

VII - Below 500

As previously indicated. the legalstudies project IS a two-stage venture In­

volving surveys aimed at measuringpublic attItudes toward the legal profes­Sion and lawyers' perceptions of thelfown profession and Its role In societyThis paper (Part I) IS based on the resultsof two separate Interview schedu les.Form A for indiVIduals who have at sometime In the recent past made use of legalservices (53°0 of the respondents), andForm B for those who have never usedthe services of a lawyer (47°0).7 Thequestionnaires were constructed by theauthor and James A Henderson andwere pre-tested In the Fayetteville areaby Mrs Nancy McVey. presenlly Ihe U SBureau of the Census representative InWashington County. Arkansas. Thequestionnaires consisted of 52 possibleresponses. most of which were designedto answer three questIOns' (1) what doesthe public think of the legal professIon.(2) why does II Ihmk Ihls way. and (3)what are the most prevalent legal prob­lems.

A demographIc profile of the respon­dents IS as follows'

It should be mentioned that at this Writ­Ing. no statistical operations have beenapplied (0 the data other than fre­quencies (percentages) and some ele­mentary measures 01 central tendency(I e. averages. such as the mean. medi­an. and mode). By this we mean that nocontrols other than dividing the respon­dents Into user non-user subsampleshave been done For example. we havenot yet tried to determine whether re­spondents In different age categories oroccupation groups think differentlyabout the legal profesSion. LikewIse. nocorrelations or cross-tabulations havebeen applied for purposes of "explain­Ing" Similarities and or dIfferences be·tween responses With these limitatIonsIn mind. we can proceed With an analy­SIS of some of the more relevant find­Ings.

RESULTSSince the layman questIonnaire re­

vealed that 53% of the publiC were usersand 47% were non-users. we can Infer.statistically. that half of Ihe adull popula­tion In the state of Arkansas has, at onetIme or another. VISited a lawyer for legaladvIce The reasons lor non-use of law­yers' servIces are Important More than85% 01 those who responded that theyhad never made use of legal servicesmdlcated. when asked why. that theyhad never felt the need for such ser·vIces. This IS approximately 38% of thetotal number of persons Interviewed Of

• SEX

* * AGE

••• OCCUPATION

equal Significance IS the fact that lessthan 3°'0 of the non-users speCifiedflnanclal reasons as a probable cause ofnon-use This represents an Inslgnlflcant014 percent of the total number Inter­

vIew Other reasons for not uSing a law­yer s services lall Into categories suchas those who do their own legal workand those wh9 recognize the need for alawyer's services but procrastinate.

A question previously proffered was.what are conSidered . real legal prOb­lems and what are the most effectivemethods available for motlvatlng thepublIC toward an early recognitIOn ofthese problems and the need for seek­Ing legal counsel? The problem seemsto be one of perceived as opposed to ac­tual need and finally an overt act ofseeking legal counsel We have alreadystated that 85°0 of the non-users havenever perceived a need Yet. 19°'0 of theusers and 11 % of the non-users re­sponded In the affirmative when laterasked' "Have you ever thought youshould have consulted a lawyer but didnot?" The following tables may betterexplicate actual use of legal counseland perceived need for such advice.Table 2a indicates the percent of userswho have done the specific acts (there­fore representing a potential legal"need") and the percent who actuallysought legal counsel and the total per­cent In regard to the same variables.Table 2b is perhaps more meaningfUl

Male 35%Female 65

Under 30 27%30-45 3246-60 18Over GO 23

ProfeSSionalBUSiness 11°0

Sales SmallbuSiness 6

Clerk secrelary 7Skilled 16semi-skilled 8Farmer 2Student 4HouseWife 26Unemployed 3Reilled 17

* In regard to the sex of the respondent. the high percentage of females could poSSibly be attributed to several factors, e.g.. time of day of Interview.the fact that females are more apt to answer the telephone even if the spouse IS at home. etc. Or. as In our case, the interviewers were mstructed to in­terview not B quotB, but any adult in the family. It should be noted, however. that the percentage of USERS and NON-USERS would not havechanged significantly. since married adults normally responded to the "legal advice" question as if it represented the family and not just the indlvid·ual being Interviewed.

* * For those respondents who answered "over 50," an additional series of questions (Form C) were asked. This part of the survey IS being supple­mented for a separate and distinct study concerned with the attitudes. legal problems. etc., 01 retired persons here in Arkansas.

* * * For purposes of this study. occupational groups were collapsed into these categories to facilitate analySIS. In actuality, "Professional/BusI­ness" represents doctors, lawyers, business executives, management. teachers. etc.. and "Skilled" represents machine operators. carpenters. con­struction workers. etc.

66 The Arkansas Lawyer

TABLE 3: Lawyer Satisfaction and Recrudesce

TABLE 2a: Potential Legal Need and Lawyer Use by Total and User Subsamples

table represents the satisfaction withlegal services received and the ex­pressed desire of the respondent to re­turn to the same lawyer if it weredeemed necessary:

Satisfied Dissatisfied Unsure

87% 11 % 2%

Return Not Return Unsure

80% 17% 3%

8

4

2

8

19%

314

16

80168387

21

51%

90

57

6638

5

9

19

61%

10

11

4105

24

UsedHave Lawyer

(N equals 477)TOTAL

10 4

16 15

8

7 6

70% 36%

8 614 29 8

35 31

24 16

UsedHave Lawyer

(N equals 253)USERS

-bought or sold your home-been involved in an auto accident

where there was personal injury orsubstantial damages

-had an injUry at work reSUlting in losttime

-had an injury requiring a doctor's atten­tion where someone else might havebeen to blame

-been involved in a dIspute concerning awritten or an oral contract

-had your property damaged by fire,weather or another person. where adispute arose

~had a dispute involving the inheritanceof money or property

-had your income tax return questioned-been sued~made a will

(a) bought or sold your home(b) been involved in an auto accident where there was

personal injury or substantial damages(c) had an injury at work reSUlting in lost time(d) had an injury requiring a doctor's attention where

someone else might have been to blame(e) been involved in a dispute concerning a written or

oral contract(f) had your property damaged'by fire, weather, or an­

other person. where a dispute arose(g) had a dispute involving the inheritance of money

or property(h) had your income tax return questioned(i) been sued(j) made a wi II

Have you ever:

TABLE 2b: Percent of Users by Legal Event

was or that it had been longer than fiveyears ago. The mode, or the responsemost frequently given for how often legalservices had been required, was twice ayear. although the range varied from oneto over 100 times a year.8 The following

since it represents the yes/yes re­sponses as expressed in the percent ofthe number of those individuals whohave done each of the events as com­pared with each other event. For exam­ple. we find that 51 % of the people whobought or sold a home made use of alawyer. whereas only 21 % of the peoplewho had property damage used a law­yer. The reason this differs from the"user" breakdown in Table 2a is the dif­ference in the number of cases involved.In Table 2a. all 253 users are included (Nequals 253), whereas in Table 2b each N(number of cases) is different becausewe are taking the number of those whohave used lawyers and dividing it by thenumber of persons who have indicated"yes'" they have done something.

Several conclusions may be drawnfrom the above findings. First. perhapsthe general public has not been edu­cated concerning the variety of servicesoffered by the legal profession. Forexample. the three most frequently citedactions do not necessarily correspondwith the percent of lawyer use. This mostlikely is due to the fact that several otherprofessions (non-legal groups) may pro­vide the same services. Examples couldbe that the respondent who has been in­volved in one of the above events. suchas "had your income tax return ques­tioned." may have used the services ofan accountant instead of an attorney.The same is true of those who havebought and sold a home since they mayhave used the services of a realtor. etc.

Of primary importance. perhaps bothto the lawyer and to his client. is the per­ceived satisfaction of those individualswho have at one time or another re­quired the services of an attorney, In thisrespect. the survey attempted to ascer­tain from those individuals who haveused attorneys several things: was thelawyer used for personal or businessreasons; how often had legal servicesbeen required in the past few years: and.of course. was the client satisfied withthe services received; and would he. ifnecessary. return to the same lawyeragain?

Of the 253 respondents (53%) whostated that they had made use of legalservices. 44% considered their use to befor personal reasons. 23% for businessreasons only. and 33% indicated thatlegal advice was sought for both per­sonal and business purposes. In regardto when legal advice was sought. 48%had used an attorney at least once dur­ing the past year. 57% within the pastthree years. and nearly 70% had re­quired the services of an attorney duringthe past five years. The remainder (30%)of the persons who had answered "yes"to the question: .. Have you ever gone toa lawyer for legal advice?" indicatedthat they either did not remember when it

April, 1974

TABLE 4 Lawyer ChOice by Users and Non-users

Table 3 merely portrays the client'ssatisfaction with the expenence of hav­Ing to retain an attorney and the public'sImpression of services performed bylawyers. Although there IS some differ­ence In whether the respondent wouldreturn to the same lawyer. the differencetS slight and should not necessanly beInterpreted as representing "dlssatlsfac­tion" as the reason for not returning tothe same lawyer.

Another question of probable Interestto lawyers was: "How did you go aboutchoosing a lawyer In the first place ­was he a personal fnend. was he recom­mended to you by a fnend. did youselect one at random. or what?" A SImi­lar question was used for non-users. Itasked' "If you were to need the servicesof a lawyer, how would you go aboutchoosing one. .?"

Table 4 summarizes the replies ofthose questions relating to the selectionand recommendation of a lawyer. It issignificant to note the differences be­tween users and non-users In regard tothe first two responses. I.e" selection be­cause the lawyer was a personal fnendor an acquaintance and recommenda­tion of a lawyer by someone else. TheImplication here IS that IF one does notknow of a lawyer personally. then thereputation of a particular lawyer IS morelikely to be a determining factor. ThiSmay be further substantiated by lookingat the results of a SimIlar. yet more In­depth question asked In the Mlssounlegal study.9 In the Mlssoun survey theLayman Questionnaire asked for up tothree reasons why those interviewedselected a particular lawyer The analy­SIS showed that

Taken together. 'reputatton' reasonsrepresented a total of 64% of all re­sponses. Being known as an honest.trustworthy person and referrals by afriend. neighbor. or other lawyer con­tain strong elements of reputation.This is likewise true of 'skill as a capa­ble lawyer' since clients rarely havethe ability to jUdge this factor in ad­vance and are in fact largely relyingupon the lawyer's reputation for skillin giving this reason.

Factors showing more personalknowledge about the lawyer throughfriendship. acquaintance, communityand political activities. account for

68

Users

Personal Fnend 45%Recommended 33Select al Random 14Other 7Don t Know 1

10000

(N equals 253)

the remaining 360'0. To summa­

nze. It IS clear that general reputation.whether for honesty or capability. IS byfar the most Important factor whichgoverns the selection of a lawyer byMISSOUri laymen .10

BelOg limited In scope because of thenature of the present survey (telephoneas opposed 10 Ihe m-depth personal In­terviews In the Mlssoun study). we wereunable to "probe'· for depth reasons forlawyer chOice However. It IS significantthat 62% of those who have never used alawyer would ask for a recommendallonrather than use a personal friend (ifavailable) or select one at random. Theseven percent who answered "other"prlmanly Cited "fathers" or "other rela­tives" as being their representatives forany legal problem or potential legalproblem.

A senes of questions related to POSSI­ble methods of chOice dealt With publiCattItudes toward the trustworthiness.comperence. and altruism of lawyers asa profeSSion Each of our respondentswas given general Instructlons and thenasked a senes of questions

Here are a senes of two statements,each dealing With truthfulness, com­petence. and public mterest of law­yers. We would like to have you tell uswhich one of the two statementscomes closest to your own POint ofvIew

(al Do you feel that lawyers can becounted on to tell the truth as theyknow It almost all of the time. OR(b) Do you !eellhey distort the truth of­ten enough that you really never knowwhether or not they are telling thetruth?<a) Do you feel that lawyers almostalways can be depended upon toknow what they are talking about. OR(b) Do you feel that they may knowmore than the average person but notmuch more than anyone With goodcommon sense?(a) Do you feel that lawyers are con­cerned mainly with the good of othersand they will sacrifice a great deal forothers. OR(b) Do you feel that they are usuallyout for themselves but they will make

Non-users Total

130/0 30%

62 4712 137 76 3

10000 Hx)°o

(N equals 4771 (N equals 224)

some effort to help others If they havenothing to lose by dOing so?

The above questIOns were adoptedfrom a study which employed ratings on4-polnt scales for truthfulness. compe­tence. and altrUism (publiC Interest) asapplied to twenty separate occupationswhere lawyers were Included. Theauthors emphasized the Importance oftheir study by stating:

It IS belaboring the obvtous to pOintout the Importance of Interpersonaltrust In a SOCial group. Family rela­tions. relationships between countries.and groups withIn a SOCial unit as wellas the everyday bUSiness of living de­pend upon trust. It IS the fabric thatholds social organizations together.The importance of trust IS emphasizedwhen we realize that a number of in­vestigations have uniformly found thattrust and trustworthiness areclosely related. The less trusting an in­diVidual. the more he tS likely to lie orto deceive others So. as trustdiminishes In a SOCial group. lies In­crease and a VICIOUS cycle IS con­tinued,ll

Again. because of the nature of thiSstudy. we found It necessary to limit thescope of the scaled-questlons. There­fore. we chose the first and third state­ments (thus, eliminating a moderate andthe most extreme derogative statements)as a relative measure of Arkansans' atti­tudes toward the legal profession on thethree vanabies Although not uSing all ofthe same occupations. the MISSOUristudy also attempted to determine thepublic Image of lawyers In comparisonwith other professlons. 12 No direct anal­ogies can be made between our findingsand the results of the other two studies:however. some generalizations aboutidentifiable trends can be inferred. Forexample. the Rotter and Stein studyfound that their sample perceived law­yers to be very high In competence (thirdbehind phySICians and dentists) and onlyabout at the average of all twenty oc­cupations in truthfulness and public in­terest (ninth in each - just behind highschool teachers and before law enforce­ment officials on the former and behindcollege professors and before law en­forcement officials on the latter)"3 The

The Arkansas Lawyer

]

TABLE 7: Watergate and Lawyers' Public Image by Users and Non-users

72%7

21

Tolal

DON'TKNOW

100%(N equals 477)

NEGATIVERESPONSE

POSITIVERESPONSE

67%6

27

fects of Watergate on the legal profes·sian and one's attitude toward legalethics,

It is interesting to note, however, thedifference in opinion 01 users and non­users in regard to the Watergate ques­tion, The public was asked: "Generally

100%(N equals 224)

75%9

16

User

100%(N equals 253)

TABLE 6: Respectability by Users and Non-users

TABLE 8: Lawyer Ethics by Users and Non·users

TRUTHFULNESS COMPETENCE PUBLIC INTEREST

TABLE 5: Comparison of Truthfulness, Competence, and Public Interestby Users (U) and Non-users (NUl

EthicalUnethicalNot Sure

o

10

20

User Non·user Total

A Great Deal 29% 18% 24%Somewhat 30 32 31Nol at All 31 27 29Not Sure 10 22 16

100% 100% 100%(N equals 253) (N equals 224) (N equals 4771

Users Non-users Total

Well 59% 55% 57%Somewhat 22 33 27No Respect 6 0 3Don't Know 13 12 13

100% 100% 100%(N equals 253) (N equals 224) (N equals 477)

'00

.0

80

70

60>-zw 50U~ (U) (NU) (U) (NUl (U) (NUlw~ 40

30

e,g .. Watergate, have hurt the lawyer'spublic image; however. the public con­sensus (72%) is that lawyers are con­sidered to be ethical.

An examination of Tables 7 and 8 indi­cates that there is probably no correla­tion between one's perception of the ef-

findings of the Missouri study were en­tirely different in that the respondentswere asked to rank the professions as togeneral reputation in the community.Out of seven professions, lawyers wereconsistently ranked number SiX. 14

In regard to our results, we find thatthere is no significant difference in theway users and non-users responded tothe series of statements. However, we dofind that our pattern conforms to that ofthe Rotter and Stein survey in that oursample perceived lawyers to be morecompetent than truthful and more truth­ful than altruistic.

Somewhat related to the above is theperceived reputation of the lawyer not inrelation to other professions, but in re­gard to his position within his own com­munity. Our sample was asked: "How doyou think people in your community feelabout lawyers in general - would yousay that lawyers are well respected, onlysomewhat respected, or not respected atall?"

The layman user and non-user havesimilar impressions in regard to lawyerrespectability with two significant dif­ferences. Applying the principle of"significant differences between per­centages"15 we find that in regard to"well respected" there is no differencebetween the responses of users andnon-users (the percentage differencewould have to be approximately 12% tobe significant). However, there is a con­siderable difference on how users re­spond to the "only somewhat" and "notrespected" categories, Eleven percentfewer users than non-users perceivedlawyers to be only somewhat respected.and six percent more users than non­users see lawyers as not being re­spected at all (levels of significance forthe two subgroups are 10% and 8% re­spectively, thus the latter is on the bor­der of not being a "real" difference).

Several explanations could be offeredhere. First, there may be a strongcorrelation between the 11 % who weredissatisfied with thei r lawyers and the17% who said they would not return tothe same lawyer and the responses of"only somewhat respected" and "notrespected at all." Or. as we will see.there may be some connection betweenpast or recent events (whether local.state, national. or, for thai matter, per­sonal) that may be responsible for thosewho have made use of legal services torespond less favorably, Without controlsand correlations, however, this IS merelyconjecture.

Two additional questions of interest tolawyers have to do with legal ethics andthe possible effects of Watergate and itsramifications on lawyer reputation. Uponfirst glance. the responses may seem tobe contradictory, For example. 55% ofthe public believe that recent events,

April, 1974 69

Jonesboro, ArkansasMEMBER FDIC

come in and see why we are called..

BANK

4 The publiC 01 pubhc op,nlon Or public attitudeS may bedefined m seve,al ways By pubhc opinion we mean thecemple. 01 Dellets e.pressed Dy a Slgrllhcanl number 01pefsons on an Issue of gene,allmPO!'"lance See BeroaldC HennesSy Public Opinion (Belmonl Cal WadsworthPubliShll"9 Company Inc 2nd ed 19701. PP 2.1-:1) fo, ane.planatiOn ot me delinillon AnOlhef usage IreQuenllymeans Ihe prevailing and p,edomtnant allitudes andludgments ot lIle memt>ers 01 a community on givenISSUes of generlll conlrOversy as determined by puOlicOpll'llon poliS see George A anCl AChilleS G Theoc!Or.son A Modern Dicllonary 01 SociOlogy {New YorllThOmas Y Crowell Company 1969) 0 315 The Theoctor.sons have also pronered an adequate del1l11tlon 01 atlltudes that applies 10 our SltuallOl'l al1llucles are anOrlentatlon tow,tfd cellSln obl8Cts {InCluCllng persons _otne,s or oneselll or sllua:lons lhat IS emOlionally lonedand ,elallyely peflislenl. An atutude 's learned and maybe rega,Cled as <l more speclllC e~press\on 01 a value orbellel In that an altitude results I,om the application o! ageneral value 10 concrete OblectS 01' Slluallons Ibid.. p19 my emphaSIS

5 See Leslie Klsh Survey Sampling {New York JOhnWiley & Sons Inc. 1967) especially chapters J anCl 10 Wehave attempted to "miniaturize K,sn s national sam·pie by adoptlngpohhcal townstllps as our Primarysamphng units as opposed to the county as used by IheSUIVey Research Cenle, at the UnlverSlly of Michigan lindother national SUl'\ley concerns For a less techrllCal andmore leaClable presenlatlon see Roll and Canlul Poll.:Their Un and MisulIl In Politic. lNew York BasiCBooks 1972)

6 TI'l9 political township was cnosen as the pnmary sampIlhg unit since It is a SUtxllVISIOn of a COunty With permanenl and Identifiable boundanes and has been deltnedOy Charles ADrams as a unit 01 local government I e adiVISion 01 a COunty (f'eQuentlyl With administrative con·trol over schools roads and Other lOCal aHalf'S

7 A Form C reqUiring a posSible ten additional fCSponseSlor respondents over lhe age ot GO was adCled III the reoQuest 01 tne Amencan AssoclaliOO 01 Retire<! Pet'sons Na·honal Retire<! Teacl'lers Assoclallon Washington 0 C

Continued on page 84

CT'\ "t-'Lea~er~

MERCANTILE

for the people....

FOOTNOTES:1 Pnllhp Lesly Respect for Ihe Law and Lawyefs In an Age

01 Unresl Speech before the Nahonal Instltule on BatPublic RelatlOfls, American Bar Assoctallon, ChicagoFebruary 6, 1971 P 2

2 Betsy Ann Ptank Consumensm Communlcallon andlIle Amencan JudiCiary Speech belOl'e the Cow1S andCommunity COmmll1eeS Amencan Bar AssocialionWashington DC AugUSt 4 1973. and The JudiCIaryNeeds a PR Progfam Public Relalion. Journal. Vol(August 1973) P 1

3 FOI' arttcles on publiC reiallons ancl puDhc Image seePhilliP Lesly (ed) Public Relallon. HandbOOk IEngle·wood ChITs NJ Prenllce·Hall Inc 197!} or HowaldStephenson (eel} Handbook 01 Public Relalion. (NewYork McGraw·HIIi Book Company 2nd !Xl 197tl andMorlon J Simon Public Relation. law (New YOI'k Ap.Qleton.(;enlury·Crons 19G91

In the area of publiC education of thetypes of services offered by the legalprofession. As was indicated by our listof "events." many of those who hadbeen involved in one or mare of the ac·tivities had not sought legal counsel.Perhaps this is an area where the Ar­kansas Bar Association should step inand attempt to inform the public of theavailable services,

A number of questions on this surveywere not covered in this paper sincetheir interpretation will be more mean·ingful when compared with responsesas obtained from the members of thelegal profession itself. J--....

speakmg. do you think that recentevents, e.g .. Watergate. have hurt theimage of lawyers a great deal. onlysomewhat. or not at all?" A combinationof the first two responses shows thatthose who have had direct contact withlawyers are more apt to see politicalevents, e.g., Watergate and perhaps theAgnew affair. as tarnishing the publicimage of lawyers than those who havenot made use of legal services. (59% to50% respectively).

A fmal point of interest to the lawyermight be the fact that one individual,when asked: "What is your opinionabout lawyers' fees?" answered. "Theyare too low!" On a more serious note. ofthose individuals who had sought legalassistance. 41% thought that legal feeswere too high and 51% indicated thatthey thought they were about right (with8% answering don't know), The majorityof responses supporting the presentlevel of fees should not be too surprisingsince we have previously noted that onlythree percent of the non·users citedfinancial reasons as probable cause fornot seeking legal advice,

CONCLUSIONSThe purpose of this part of the legal

studies project. of course. was to collectdata which would provide informationconcerning publiC attitudes toward thelegal profeSSion; the reasons why theseattitudes prevail. and the motivationalfactors affecting the use of legal ser·vices. We have attempted to explicatepubliC acceptance of legal assistance bydelineating those practices of the legalprofeSSion which create positive andnegative public impressions and to helpclarify those attitudes which can be at·tributed to a lack of public understand­ing. We did this by constructing ques­tionnaires and conducting interviewsbased on what the public thinks 01 thelegal profession,

To summarize. we found that half ofthe people (adult population) in the staleof Arkansas have at one time or anothermade use of legal counsel. In addition,we found that even though some stateand national events may have hurt theoverall publiC image of the lawyer. m hisown community he is Slill well respected- thiS may be based on the findings thathe is perceived to be trustworthy (truth·ful). competent. and. to a lesser degree.ccncerned with the welfare of his com·munity (society). Likewise, the publiCsees Ihe lawyer as being ethical. againreflecting the attitudes of trustworthi­ness, competence, and altruism as per­ceived by the general public. One areaof surprise might be that half of those in­terviewed believe that the fee scheduleused by the legal profeSSion was "aboutright" while only 41 % thought that feeswere "loa high,"

A major recommendation seems to be

70 The Arkansas Lawyer

I

MY5t

•IC

•I5m

A Luxury We

Can't AffordAnymorebyJohn P. Gill

The profession of law is probablyman's most unique relationship. Cer­tainly. it is one of the most unique. Intoday's vernacular. one must. un·doubtedly, refer to the practice of lawas a "super" profession.

I don't know of any other of man'srelationships on this earth where oneperson is called upon to share the in­timate relationships between a manand his wife in matrimonial discord.Or. where a man is given privy toguide the judgment of another man'sbusiness livelihood. A lawyer is en­trusted with the correct distribution ofa testator's entire worldly goods, and Iknow of no greater calling than forone man to go to another and say,"Will you draft my will? Will you seethat my family, my loved ones. arecared for when I'm gone?" Whatgreater trust can you put in anotherman than that? In addition, we aregiven the privilege of asking laymento transform bodily injuries and paininto a dollar amount of money. Whatother profession offers one the op­portunity of having such con­sequential discourse between humanbeings?

I'm not sure how we acquired allthat responsibility, but I think it is safeto say that we hOld it at the pleasureof the pUblic. The responsibility is en·trusted to us, as long as we keep thepublic trust. It is mandatory, therefore,

April, 1974

that we keep the public advised abouthow we lawyers operate. We can nolonger afford the luxury of a magic ora mysticism about lawyers. There can·not be any mystery about how you andI perform au r professional respon­sibilities.

Mystery does exist. however. Ourlanguage is most unusual. There aregreat numbers of laymen who hear ustalk about "demurrers," and "res ipsalocquitur," and they understand thatjust about as much as I understandSwahili. We have a responsibility tocommunicate to our clients, to explainthe actions of the legal system.

Put yourself in the client's place.There he sits in the courtroom and allof a sudden, his lawyer, the man that'slooking out for his rights, and theother lawyer, who is looking out forthe other guy's rights, rise and ap­proach the bench for a consu Itationwith the judge, Or worse yet. they gointo the judge's chambers and returnfor recess or dismissal. You and Iknow that a conference of this type isentirely proper and necessary for theefficient and orderly administration ofjustice. We know it is right, but thelayman doesn't, and it is our obliga­tion to inform him about why this par­Bcu lar transaction happens.

I think we have an obligation to ex­plain away some of the mystery aboutthe system and bring the practice of

law down on the street. A great dealof dispelling the mystery of the profes­sion has to do generally with a law­yer's individual public relations. Hedoes it best with his own clients. Forinstance, a subject that he shouldalways address himself to is on thequestion of fee. Surveys and statisticsshow that the area in which there isthe most general misunderstandingbetween the client and his lawyer is inthe area of fees. We have heard it saidtime and time again, "bring it out inthe open. Tell the man how he's goingto get charged, tell him what the basisof his fee is going to be and don't waitand give him any surprises at theend,"

There is a small booklet which iscalled the "Lawyer's Personal PublicRelations KiL" pUblished by theAmerican Bar Association, that is oneof the finest pieces of literatur~ avail­able to any practicing lawyer. It dis­cusses many things which space doesnot permit me to cover, one of whichis the importance of discussing feeson the front end.

The client must know what weknow. He must know how great thisprofession is and we must tell him.One of the greatest injuries to the im­ages of attorneys is the whole ques­tion of lawyer discipline. Our imagehas to do in a large part with how of­ten and how effectively the discipline

71

of the profession is enforced.But. what can we do to tell the pub·

lic about tills profession that you and Ilove enough to give our entire livesto? The Public Information Committeeof your State Bar Association hasbeen given this massive responsibilitywith a budget of $3,000. Let me putthat in perspective for you. The StateBar of Texas has a budget for publicinformation of $200.000. The State ofMissouri has allotted $25.000 just forsalaries for a public information direc·tor and his staff. I believe the entirebudget is around $40,000.

Let me say basically that the ques­tion of public image and public in­formation is an executive function. Itmust be discharged by the executivesof the Bar, and not by the lawyers.Why? Because it's a day·to·day rou­tine. a day-to-day obligation. Theremust be a public information directorof the Arkansas Bar available for anymember to call and say. "Look, we'vegot a problem! We need to make aresponse, and set someone straight."'When there is misconception we needsomeone who hasn't another thing inthe world to do but drop what he"s do·ing and straighten out the misconcep­tion. We are lawyers, we're not publicrelations people or public informationpeople. We have obligations to aclient who wants our services, haspaid for them, and is entitled to them.And I1'S difficult to tell that client towait while we try to straighten out animage problem. l1's an executive func­tion and we in Arkansas need thatfunction fulfilled by a public informa­tion director, as it is in almost half ofthe states.

But let's talk about what we are do­ing and what is involved in the wholequestion of public information.

We have under study. and underdraft, a booklet which lists the ser­vices lawyers perform. Because ofpoor public relations, lawyers havewritten off large areas of the law andlet laymen perform them, Real estateclosings, tax work and other areasthat used to be performed by lawyersare no longer performed by us in partbecause the public doesn't know wedo that sort of thing, You can't find alawyer to draft a deed in Little Rock.Oh, you can get a lawyer if you askhim, but most of the people thinkdeeds are drafted by abstract com·panies, And this is why it is importantthat we get a booklet out that informsthe public of our services.

Legal seminars. on such things asrecent court decisions, ecology orother areas, need to be instituted inevery county in the State of Arkansas.The State Bar of Missouri has justcompleted a pilot project in which

72

they brought in school professors andinstructors and taught them some­thing about the legal process. Aspeaker's bureau has been formed.and although it may be a small thing,it is necessary to provide adequate ex­posure.

The question of internal com­munication among lawyers in Ar­kansas is something that has sufferedto some degree in the past. but is can·tinually getting better. The ArkansasLawyer, probably the finest Bar publi­cation in America today, is a step inthe right direction. I don't know howclosely it is read. We have attemptedto make it more readable by in­corporating more information and ex­change of ideas about what is beingdone, But this job, however. is donealmost entirely by one person - theexecutive director, He has no staff tohelp implement that particular pro­gram. We have instituted what hasbeen called the "Bar CommunicationsSystem."' in which we report on thelawyers that are doing something,Cyril Hollingsworth of Little Rock isheading this particular committee, Bywriting Cyril and telling him what youare doing, he is able to use the in­formation in the publication andprepare follow-up news releases. Forthe first time, the Arkansas BarAssociation has been able to employa draftsman for press releases. He hasa degree in journalism and he has alaw degree and he's been in practice.With his assistance, we have beenable to get something in the statenewspapers at least once a month andare working toward getting some in­formation to the public about whatlawyers are doing every two weeks.

If you stop to think of the man-hoursthat have been put in criminal work­shops, if you think of the man·hourslawyers have given free to try to im­prove the criminal justice system in

John P, Gill is a partner in the Uttle Rock lawfirm of Spitzberg, Mitchell & Hays. He attend·ed Hendrix College and graduated lrom un­dergraduate and law school at VanderbiltUniversity. He is a former chairman of thePublic Relations Committee of the ArkansasBar Association and is presently a member ofthe House of Delegates and the ExecutiveCouncil.

Arkansas, It IS staggering. It would betragic if the publiC didn't know law­yers were dOing thiS. Why? Whatcould possibly be in it for lawyers toimprove the criminal justice system?Certainly not dollars In their pockets.They're doing it because it needs tobe done and because they love theprofession. We don't have to build anystory, we don't have to create somestory to tell what lawyers are doing,we just have to .. tell it like it is." Wehave now tor the very first time a pro­cedure by which we can effectivelycover Bar meetings. I'm talking aboutthe full business - press kits, pressrooms, press tables. We have a longway to go, but we're on our way tomaking sure the press knows what ishappening, The image will take careof itself.

We hope to institute within Law Day74 a program that opens courthousesto the public, Last year we had a 30­minute, prime·time television specialthe night before Law Day. In addition,a tour was conducted of the PulaskiCounty Court House in Little Rock,This year we should take the publicinto all Arkansas courthouses and letthem view, first hand, what goes on inthose cold buildings,

Public service radio time is anotherexample of what we've done. We'vegotten tremendous mileage out of aset of tapes produced by our publicrelations people in Little Rock. In fact.the public affairs director of one of thefive largest radio stations in Arkansassaid that was the best set of public in­formation tapes for free pu blic servicetime that he had ever received, Inaddition, we"ve taken some old Ameri­can Bar TV tapes, placed an ArkansasBar tag on them and sent them out.They cost $35 each once produced. It

Continued on page 99

The Arkansas Lawyer

,,

i,J

I

PRACTICEPOINTERS

underthenewRulesofBankruptcyProcedure

(Hopefu Ily, aguide throughthe maze)

byJudge Charles W. Baker

On October 1, 1973 new Rules ofProcedure for the Bankruptcy Courtsbecame effective. They have madesome significant changes and thepast five months have been filled,much more than usual. with trying toexplain to the members of the Bar,(most of whom are infrequent visitorsto the Bankruptcy Court) what is re­quired from a procedural point of viewto present the contentions of the par­ties. This article is an attempt to covera few of the most recurrent questions.

There are new forms for the Petitionfor Voluntary Bankruptcy and forWage Earner Plans under ChapterXIII. The forms are available fromvirtually all of the legal form printersin the state. The new forms are moresimple to understand. in my opinion,but they do require a good deal moreinformation than was necessary pre­viously. It seems that we are receivingmore of the new petitions which are

April, 1974

not complete. It will behoove you tofill out the forms completely before fil·ing because they are meticulouslyexamined by the clerks of the Bank­ruptcy Court and the BankruptcyJudge. If all of the information is notgiven, then you may have to fileamendments: and. on occasions.when omissions are discovered short­ly before the first meeting of creditors.it may be necessary to require youand your client to return to Court for asecond time.

Some of the common omissions are:a. listing of the property and its

value which is collateral for a se­cured debt;

b. listing of property on schedulelor property; even if it serves asco Ilateral:

c. signing the petition by the attor­ney:

d. itemization of the propertyclaimed as exempt:

e. information regarding income taxrefunds. An income tax refund isan asset of the bankrupt whichmust be listed and if the tax re­turn for the past year has notbeen filed then the case shouldnot be declared a non-asset caseuntil the return has been filed andthe information concerning it isdisclosed:

1. disclosure of the attorney's feearrangement: and

g. failure to list the proposed pay­ments to the various securedcreditors in a Chapter XIII case.

The most recurrent questions for at­torneys in straight bankruptcy casesseem to be how to go about gettingthe return of their secured client'scollateral. The old procedure was tofile a Reclamation Petition whichcould usually be heard at the firstmeeting. The new rules have dividedcontroversies into two basic types:

73

"Adversary Proceedings" and "Con·tested Matters." Rule 701 denomm·ates the following proceedings to beAdversar.y Proceedings:

Proceeding to1. recover money or property. other

than proceeding under Rule 220or Rule 604.

2. determine the validity. priority. orextent of a lien or other interest inproperty.

3. sell property free of a lien orother interest for which the hold­er can be compelled to take amoney satisfaction,

4. object to or revoke a discharge.5. obtain an injunction, other than

injunctions effective as a matterof law, simultaneous with the fil·ing of the case, such as providedin rules 401. 601 section 11 a,

6. obtain relief from a stay asprovided in Rule 401 or 601. or

7. determine the dischargeability ofa debt.

Since a Reclamation Petition (socalled) would be a proceeding to re­cover property, it is classified as anAdversary Proceeding. This bringsinto playa whole series of rules start·ing with 701, which among otherthings, require the filing of a Com·plaint, the issuance of a summons andnotice of trial. Technically a Reclama­tion Petition is now called a Com·plaint for Reclamation. Your securedparty is the Plaintiff and the Defen­dants are everyone who has any in­terest in the collateral, including theTrustee or Receiver. An AdversaryProceeding is a trial for all practicalpurposes. Obviously, this is too time·consuming and expensive a proce·dure for most situations. There areways to avoid all of this in most cases.

First of all, non·asset cases do notrequire the appointment of a Trusteeto collect and sell assets. In thesenon-asset cases, the interest of theBankruptcy Court in the assets of theBankrupt is abandoned by formal Or·der of the Court within a day or twoafter the first meeting of creditors.Upon the filing of that Order the se­cured creditor is free to proceed un·der state law to regain possession ofhis collateral as if Bankruptcy had notintervened.

Secondly. in those cases wherethere are some assets and a Trustee isappointed, the easiest procedure is toinformally ask the Trustee to seek anOrder from the Court authorizing himto abandon and disclaim any interestin your client's collateral. Such aTrustee's petition is not an AdversaryProceeding and requires no notice.hearing or delay. It is suggested thatthis procedure can be speeded up ifthe attorney representing the secured

74

Judge Charles W. Baker is a native of Boon·ville, Missouri, and graduated from under·graduate and law schoof at the University ofMissouri at Columbia. He practiced law from'965 until 7968 in Kansas City and thenmoved to Littfe Rock where he joined the firmMoses, McClellan, Arnold, Owen & McDer­mott. In 1973, he formed the firm of Baker &Probst, PA. On February I, 1973, he was afTpointed as a part-time bankruptcy judge forthe eastern and western districts of Arkansas.

creditor prepares a Petition for signa­ture and filing by the Trustee. whichsets out the facts showing that thereis no equity in the property for thebenefit of general creditors and thatthe property is burdensome andshou Id be abandoned and also pre·pares a precedent for an Order ofAbandonment. Then all the Trusteehas to do, if he is agreeable, is to signthe Petition and forward it with theprecedent for an Order of Abandon·ment to the Cou r1.

Of course. if the Trustee thinksthere is some equity in the propertyand refuses to abandon. then theproper procedure is for the securedcreditor to bring a Complaint forReclamation in accordance with Rule701 et seq.

Thirdly, if the issue raised by theComplaint tor Reclamation is primarilybetween the secured party and theTrustee. move the Court (per FRCP 8(f) Rule 903) to treat the AdversaryProceedings as a Contested Matter.under Rule 914, and dispose of thematter forthwith.

Another new rule which is likely tocreate trouble for secured creditorsoccurs in Chapter XIII proceedings.Rule 13-302 "Filing Proof of Claim (e)Time for Filing (1) Secured Claim."provides as follows:

"A secured claim. whether ornot listed in the Chapter XIIIStatement. must be filed on orbefore the first date set for thefirst meeting of creditors in theChapter XIII case unless theCourt. on application beforethe expiration of that time andfor cause shown. shall grant areasonable. fixed extension oftime. Any claim not properly

filed by the creditor withinsuch time shall not be treatedas a secured claim for pur·poses of voting and distribu·tion in the Chapter XIII case."

This means that if the securedcreditor does not file his claim. withsupporting documents. by the firstmeeting of creditors. he will be treatedas an unsecured creditor under thePlan, which means that the securedcreditor will not receive any paymentsfor at least six months after the firstmeeting. even if the proposed plancalls for payments to him. So be sureyour secured creditor client files hisclaim at or before the first meeting ofcreditors.

In the past there has been someconfusion as to the title which shouldbe used in addressing the presidingofficer in the Bankruptcy Court. In thepast his title was Referee in Bank·ruptcy. He is now designated "Bank·ruptcy JUdge." Rule 901 (7).

The proper place lor the filing ofpleadings. claims, petitions. etc .. hasbeen the source of some confusion.The original Petition in all Bankruptcycases should be filed with the DistrictClerk. Thereafter. all claims. plead­ings. complaints. etc .. should be filedwith the Bankruptcy Judge who IS

handling the case. Our mailing ad·dress is P.O. Drawer 1899. Little Rock.Arkansas 72203 and we are located onthe fourth floor of the U.S. Courthouseand Post Office. 600 Capitol Avenue.Little Rock, Arkansas.

Until the new rules are tested bytime and appellate decisions. It islikely that there Will be some differ·ences in interpretation among Bank·ruptcy Judges, and I hasten to pointout that the views expressed heremare those of the author only. J.

The Arkansas Lawyer

:

I

WageEarnerRehabi Iitationandthe Impactof theNewBankruptcyRules

byA. L. Tenney,Trustee,Chapter XIII Cases

The debtor-creditor relationship isas old as commerce itself. Perhapsthe earliest reference to this relation·ship is recorded in Chapter 15, Verse1, et seq., Book at Deuteronomy, theOld Testament. The historical plight ofthe debtor runs the gamut from penalexactitude to our modern rehabilita·fion statutes. The English Bankruptcylaw treated the bankrupt as an evilperson and one to be rooted out ofsociety. The first Bankruptcy Act inthe United States was patterned afterthe law of England and adopted thesame attitude. Thus, historically, thefiling of a bankruptcy case implied thedemise of a business, the liquidationof its assets into cash, and distribu­tion to creditors. This is not a validassumption in the United States sincethe Chandler Act of 1938, whereby theCongress added the "chapter" provi­sions to the existing Act, whichprovide for rehabilitation, instead ofliquidation, Viz: the Reorganizationand Arrangements of corporationsand businesses under Chapter X andXI; Real Property Arrangements bypersons other than corporations un·der Chapter XII; Wage-Earner plansunder Chapter XIII, etc.

This paper is restricted to ChapterXIII, 11 U.S.C" section 1001, et seq. Bythis chapter, the Congress providedfor the rehabilitation of an individualwhose income is derived from wages,salary or commissions. Upon the filing

April, 1974

of the case, creditors are enjoinedfrom garnishing the wages. salary orcommissions of the debtor or from re­possessing his property or from anyharassment. direct or indirect. Itallows the debtor to keep his propertyon which there are liens. The Courtmay cancel contracts which are un­necessary to rehabilitation. The Bank­ruptcy Court is vested with the saleand exclusive jurisdiction of the debt·or and his property, wherever located,including future earnings; and thedebtor is not subject to suit in anyother Court.

The use of Chapter XIII is in directratio to knowledge of its existenceand provisions by individuals and at·torneys. Over 60% of all cases filed inArkansas are of this type. Almost with­out exception, these plans provide forpayment in full to all creditors. over anextended period of time. under thesupervision of the Court. The JudicialConference of the United States andthe Bankruptcy Division of the Ad­ministrative Office of the UnitedStates Courts encourages the use ofChapter XIII in appropriate cases, asan alternative to straight bankruptcy.At the present time, there are about1700 such cases pending in Arkansaswhich, in 1973, rendered payment tocreditors in excess of $1,200,000.00.

On October 1, 1973, new Bank­ruptcy Rules went into effect. includ·ing Rules 13-1 through 13-901, which

pertai n to Chapter XIII. Most at theseRules merely reiterate existing proce­dure. but some provide for drasticchange, so it is timely to discuss someof them.

Rule 13·302 (e) - Time for filing(claims). This rule provides that a se­cured claim. whether or not listed in aChapter XIII statement, shall be filedon or before the first meeting of credi­tors, unless the Court grants an exten­sion of time before the first meeting ofcreditors. It further provides that a se­cured claim not filed within such timeshall not be treated as a securedclaim for purposes of voting and dis­tribution. (Patterned after section 355of Chapter XI; and for discussion see,Collier on Bankruptcy. Vol. 9, section7.25(5), P. 97, et seq.) The rationale isthat an early determination of securedclaims is essential to confirmation andthe distribution to creditors under theplan. If secured creditors file untimely,they may find they have jeopardizedany rights to reclaim collateral subse­quent to the confirmation of the plan.

Rule 13-303 - Filing Claims byDebtor or Trustee. This rule allows adebtor or the trustee to file a claim inthe name of a creditor. The purpose ofthis rule is to reduce the possibility ofthe existence of non-dischargeabledebts should a debfor later qualify fordischarge under section 660 or sec­tion 661 at the Act.

75

Rule 13·307 - Objection to andAllowance 0' Claims, Valuation ofSecurity. Sub-paragraph (d) of thisrule requires the Court to determinethe present value of the security andto allow the claim as secured to theextent of Its present value and as anunsecured claim for the remainder.This means, for example. that a$1,000.00 claim secured by collateralwith a present value ot $500.00 will beallowed as secu red for $500.00 andunsecured for $500.00. It seems tofollow that the contract payment onthe secured portion of the claimshould be reduced in a proportionateamount.

Rule 13·401 - Pelilion as auto·malic stay of acllons against debtorand at lien enforcement. By section606(1) of the Act. 11 U.S.C. 1006. theCongress expressly provided thatclaims secured by real property shallnot be included in a Chapter XIII case.However. the case law holds other­wise, if foreclosure would scuttle theplan. Two of the leading cases on thispoint stem from rulings by BankruptcyJudge Arnold M. Adams and sus­tained on appeal by District JudgesJohn E. Miller and J. Smith Henley,Viz: In Re: Pizzolato, 281 F. Supp. 109(W.O. Ark. 1967): and In Re: Howard,

344 F. Supp. 1138 (E. O. Ark. 1971).These cases have been frequentlyCited by appellate courts throughoutthe United States and In a large mea·sure are the baSIS for Rule 13-401. Asa collateral matter. I Invite your atten­tion also to In Re: Pizzolato, 268 F.Supp. 353 (W.O. Ark. 1967), whereinthe power of the Bankruptcy Court toenJOin foreclosure of liens on per·sonal property was affirmatively deter·mined by JUdge Adams and sustainedby Judge Miller.

I commend your study of the abovecases for the reason that all cases ap­pealed from the Bankruptcy Court re­garding Chapter XIII were mentionedand discussed.

Rule 13·301 - Proof 01 Claim. Thisrule provides that a proof of claimshall consist of a writing setting forthfacts showing that such claim is freefrom any charge forbidden by applic­able law. This feature is unique in thatit requires the creditor to prove lack ofusury. rather than reqUIring the debtorto allege and prove usury as an af­firmative defense. The rule expandsthe former requirement by substituting"charge forbidden" for "usury" and··applicable law'· for ·'Iaws of theplace where the debt is contracted."This provision could mean that loan

companies which are located acrosSthe state lIne but are actually dOingbUSiness In Arkansas will be requlfedto meet the test of Arkansas UsuryLaws.

The new rules have also made newforms necessary In Chapter XIII cases.A sample completed Chapter XIII formfollows. Most of the Items are self-ex·planatory. however some generalcomments may be helpful.

Home payments may be Includedunder the plan. and It is probably tothe best Interest of the debtor to doso. However. whether Included in theplan or not. the secured party may notcommence action In any Court to fore­close. without permiSSion of the Bank­ruptcy Court. Section 611 of the Bank·ruptcy Act, 11 U.S.C. section 101l.

Reduced contract rates to securedcreditors may be proposed. The Courtsends notice to the creditor of the pro­posal and the proof of claim providesa space for an acceptance or rejec­tion.

The new rules were controversial intheir conception and no doubt in theirinterpretation: hence, the views hereinexpressed are those of the authoronly.

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Editor·s Note: Acomplete sampleset of Chap. XIIIforms begins onthis page andcontinues on thenext.

Mr. A. L. Tenney is a native of IndependenceCounty, Arkansas and received his BA fromthe University of Arkansas in 1951. He ;s a1970 graduate of the Uttle Rock division of theUniversity of Arkansas Law School. He hasserved as trustee of Debtor Estates since May". 1962.

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76 The Arkansas Lawyer

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LAW DAY USA 1974May lsI. 1974. IS not Lawyers Day.

It is Law Day - a day for celebrationof the law by and for the people.

Even without religion. Henry WardBeecher wrote, the preciousness ofthe laws and liberties of a greatpeople would enkindle such an enthu­siasm as to consume baser feelings.The purpose of Law Day is to annuallyrekindle such enthusiasm among thepeople of the nation. It was not con­ceived by Charles S. Rhyne in 1957 asa day to be observed within theprofession by members of theprofession. Rhyne. a Washington. D.C.lawyer. then president of the Ameri­can Bar Association. said that thegreatest strength of America lies inthe concept of individual liberty underlaw. and he proudly proclaimed thatno other system of government hasproduced the individual freedomwhich exists in America. He wantedAmerica to celebrate the law, and thethousands of Law Day observancesheld annually are eloquent testimonythat the nation's leaders in the fieldsof law, government and educationshare that purpose,

Law Day 1973 in Arkansas was ob­served in every corner of the state. Itsaw the establishment by the PublicInformation Committee of the Arkan­sas Bar AssociatIOn of the EagleAward for best Law Day observanceby a small local bar assocIation andby a large local bar aSSOCiation. Inrecognition of the plannmg and exe­cution of this program, Cyril Hollings­worth. 1973 State Law Day Chairman.received an Eagle, and appropriatecredit was given Ron Robinson ofCranford/Johnson/Hunt & Associatesfor outstanding public relations ser­vices in connection with Law Day1973.

Probably in no year since 1958when Law Day was officiallyestablished by presidential proclama­tion, nor in the years since 1961 whenCongress by joint resolution formallydesl9nated May 1st as Law Day USA.has there arisen a more spontaneousdemand for the accomplishment of thepurposes originally advanced for LawDay than exists today. Those pur­poses were: the advancement ofequality and Justice under law; the en­couragement of citlzen support oflaw; and the fostering of respect forlaw, and understanding of its essentialplace in the life of every citizen of theUnited States of America,

This year on May first. the obser-

78

vance will agam be statewide in Ar­kansas through the efforts of local barLaw Day chairmen working with theYoung Lawyers Section of the Arkan­sas Bar Association, the State JudicialCouncil. and the State Law Day Com­mittee.

Because the right theme and theright time have coincided, 1974 will bean outstanding year in the annals ofLaw Day USA. The theme is:

YOUNG AMERICA.LEAD THE WAY

Help Preserve Good LawsHelp Change Bad LawsHelp Make Better Laws.

ThiS year young people In the stateand nation are realizing that their helpIS not only needed. but sincerelysought. They are ready for the respon­sibility.

If Law Day USA 1974 IS successfullyexecuted. its sponsors will havehelped create an informed andresponsible young Arkansas andyoung America ready to assume thechallenges of good citizenship ex­tolled in Jean Jacques Rousseau's"The Social Contract" - "Good lawslead to the making of better ones: badones bong about worse. As soon asany man says of the affairs of thestate. 'What does It matter to me?" thestate may be given up for lost.'· y#*,

The Arkansas Lawyer

f

Colonel C. E. Ransick

ARKANSAS' UNSUNG HERO(Editor's Note: Since joining the Arkansas Bar Association as its Executive Direc~

for, Colonel Clarence Aansick has edited every edition of The Arkansas Lawyer.Until this one. In the absence of the Colonel's blue pencil, the editors seized thisfirst opportunity to salute a man who is an outstanding tribute to the legal profes­sion.)

"He demonstrated those qualities ofintellectual honesty. moral courageand balance which contribute to themaking of an outstanding jUdge. Hisuntiring efforts and dedicated devo­tion to duty greatly enhanced the ad­ministration of military justice withinthe Army.. ,.. Legion of Merit awardedby the President of the United States.1968.

That citation is one of more than 50bestowed upon Colonel Clarence E.Ransick during his three careers.

It was 1937. and a young Ohioanwas just hanging out his shingle inHamilton County. He had recently re­ceived his Bachelor of Laws degreefrom Salmon P. Chase Law School inCincinnati and was eager to startpracticing. Real estate and probatelaw were his preferences. And theywere to be his specialties, with a tewminor criminal cases along the way.Those were his plans and things wentwell until World War II broke out. Thedraft changed those plans and abrupt·

April, 1974

Iy ended his first career.His initial assignment in the U.S.

Army was instructing officer candi­dates in some 20 sUbjects. one ofthem military law. A military weddingalso took place about this time whenRansick married his wife, Clarine.Within the short space of two years.he was provost marshal and securityintelligence officer at a large armyordnance depot with the responsibilityof direction and training of a 125-mancivilian guard complement, threedetectives and a military police unit ofabout 150 men. Here he received theArmy Commendation Medal for hisleadersh ip.

By 1945, he had become a legalwriter, marshalling facts. summarizingthem. applying pertinent law and reg­ulations and making recommenda­tions or handing down decisions.

Then another disaster changed hiscourse. On April 16 and 17, 1947, ex­plosives and fires leveled Texas City,Texas. As a result. the United States

government haf:t hundreds of claims tobe settled. Lieutenant Colonel Clar­ence E. Ransick was named AssistantChief, Texas City Claims Branch. Of­fice of the Judge Advocate General,Fort Holabird, Maryland, He approvedover one hundred claims for paymentof over 52 million, and his work wasrewarded with another Army Com­mendation Medal with First Oak LeafCluster. That citation read: "By hisdedicated efJorts and skillful utiliza·tion of his manifold talents. LieutenantColonel Ransick contributed in amajor degree to the prompt and effi­cient accomplishment of the unique.unprecedented mission. "

With this assignment successfullycompleted. he became a maritime lawspecialist. schooling himself in thisspecial field at Tulane Law Schooland processing all types of maritimeclaims and contracts. Mission accom­plished.

His next move up the military chainof, command was to Chief Legal 01-

79

Colonel Ransick receives the Legion of Merit (1st Oakleaf Cluster) from General Kenneth J.Hobson, the Judge Advocate General, in a December, 1968, awards ceremony.

flcer He was responsible for com­mand administration of military JusticeIn seven major Army commands.While fUlfilling this assignment In Ger­many. he established a Brigade Pre­ventive Law Program for which hewas given the Legion of Merit award.

The Citation tells the story "ColonelClarence E. Ranslck. Judge AdvocateGeneral's Corps distInguished hIm­self by outstanding performance ofduty while serving as Staff JudgeAdvocate. 32d Artillery Brigade.United States Army. Europe, fromMarch, 1964 to February, 1966. Duringthis period Colonel RanSlck Instllutedpolicies and procedures which pro­vided superior legal service and ad­vice for members of the Brigade aswell as non-Brigade units located In

the Palatinate District. The reg­ulatIOns. guidance letters and direc­tives prepared and distributed to com­manders on all levels demonstratedhis comprehensive knowledge of allfacets of legal mailers. His active In·

terest in providing extensive legal ser­vices to the military personnel. theirdependents and commanders prompt­ed the initiatIOn and development ofthe Brigade Preventive Law Pro­gram .. The Preventive Law Programbroadened the scope of legal assis­tance to personnel and their depen­dents. which resulted in a reduction ofthe Brigade's courts·martial Incidenceby one-Ihird and a workload of 600cases per month for his section on allphases 01 legal advice. The reactionand use of the program by comman­ders and personnel reflect highly onColonel Ransick's encompassingcoverage of legal problems facingmembers of the military communityand procedures for solving them be­fore more serious difficulties couldarise

At about the same time. he was alsohonored with an Army CommendationMedal with Second Oak Leaf Clusterfor hiS Confinement and ClemencyProgram.

With diligence and outstandingleadership the hallmarks of his mili­tary career. it might have been ex­pected that Colonel Ransick wouldeventually reach the U.S. Army's high­e.,t appellate tribunal. He did in 1966.That year he was named Chief Judgeand given the responsibility of deter­mining the legal sufficiency of recordsof courts-martial trials and appro­priateness of sentences, His brilliantwork brought yet another citation: hissecond Legion of Merit with Oak LeafCluster.

By 1968, Colonel Ransick had be­come one of the Army's most decorat­ed Judge Advocates and with thatdistinguished record he retired from

an IllustrioUS military career thatspanned 27 eventful years.

It was a happy cOincidence that inthe same year the Arkansas BarAssociation was In search of anExecutIve Director. J. Gaston William­son. then assoclatton president. wasleadmg the search. He contactedArmy Judge Advocate General Ken­neth Hodson and Hodson gave himthe names of the three most qualIfiedpersons he could think of. One ofthem was Colonel Clarence Ransick.

At the time Colonel Ransick and hisfamily moved to Arkansas in January.1969. the Colonel said he knew onlyone Arkansan. WhJle servmg as PortJudge Advocate at the New OrleansPori of Embarkation. JUdge Tom Butthad been his mobilization deSignee.which meant that if a war eruptedJudge Butt would take over the NewOrleans Port while the Colonel wouldtake off for overseas.

Ransick later learned that he hadserved with three other Arkansas law­yers. Joe Woodward and Bill Eldredgewere with him at Fort Bliss and HughOverholt was the Colonel's Chief ofMilitary Justice in the Seventh ArmyCommand in Mannheim. Germany.

In the years since the Ransicksmoved to Arkansas. the place wherehe thought he knew but one personhas become home and a host offriends with whom he works and plays

his two favorite games. golf andbridge.

The Ranslck's oldest daughter ISmarried and living In Germany Theyhave another daughter now In theninth grade. a son In high school andthree sons In college

So the family IS now well-oriented toLittle Rock And the man who hungout his shingle In OhIO In 1937 IStoday an unsung hero In Arkansas.

-'. ,

80 The Arkansas Lawyer

•.'.­,

Fact Or Fad?

The Legal Professional Corporation in Arkansas

by George N. Plasliras and Harvey L. Bell

This article is directed to you. apracticing attorney in Arkansas. foryour consideration. Hopelu liy. it' wilibe useful for you to determine wheth­er you should incorporate your legalpractice or continue your present formof doing business.

Traditionally. the practicing attorneyhas operated as a sale proprietor or apartner. So much so, that some attor­neys will not even consider any alter­nates. It is our view that the Legal Pro­fessional Corporation ('"LPC") is hereto stay: it does have merit for manypractitioners and perhaps you; andyes. you shou Id consider it. Why? Theanswer is money, and more par­ticularly. your money.

April, 1974

Before reading further, it is request­ed that you extract a professionallyearned one dollar bill from your walletand place this biil adjacent to thisreading material so that it will beeasily viewed at a glance. Now, let'sdefine your dollar so that it is under­stood in its economic perspective ­that is. what it can buy for you at thistime, II your dollar instead represent­ed an Interest payment received byyou on a non-taxable municipal bond.then II would be accurate in mostcases to say that your dollar had onehundred cents worth of buying power;on the other hand. since your dollarwas received for services renderedand you are in the 36% income tax

bracket. your dollar contains only 64cof buying power, Under this analysis,we quickly realize that we all possessdifferent kinds of dollars and mustfirst understand our dollar before wecan evaluate its economic worth, Con­ceptually. the LPG is a springboardwhereby one may in certain casesjump from the 64c dollar into the 100cpool - however, the pool is bothshallow and deep so that it is recep­tive only to the informed swimmer.

On August 8. 1969. because of ob­vious unanimity in the federal courtsupholding the professional associa­tion as a taxable entity, the TreasuryDepartment relinquished its positionand formally announced professional

81

corporation recognition. Four monthslater, the Arkansas Supreme Court en­tered its Order authorizing attorneysto practice law as an employee of aduly organized LPC and. on March 2.1970. the IRS jssued a revenue rulingwhich recognized the Medical. Dentaland Professional Corporation Acts ofArkansas. During and after suchevolution. the number of Articles of In­corporation annually filed for Ar­kansas LPC's were as follows: two in1969; two in 1970; five in 1971; five in1972; and. seventeen in 1973 (approxi­mately five of which appear to be endof year filings for a 1974 practice). Atthe date of this writing. there are ap­proximately thirty-two ArkansasLPC·s.

What IS an LPC? 1t IS a corporation(albeit with certain limitations) inwhich you the attorney would be ashareholder. director. officer and pro­fessional employee. Consequently. itaffords the opportunity for differenteconomic arrangements that may notbe available to the partnership or thesole proprietor. It is the favorable taxstructuring. however, which providesthe essential attraction.QUALIFIED RETIREMENT PLAN

The most often promoted attributeof the LPC is the fact that it can adopta Qualified Retirement Plan. A Quali­fied Retirement Plan is a conduitwhereby you may obtain present 100cuse of a particular dollar plus thegrowth on this dollar tax-free until: (1)your retirement: (2) your disability; or(3) your death. Compare thiS to the64c dollar which you have put to workfor you In a saving account, the earn­ings on which are also being taxed.

In other words. normally the dollarcontributed to a Qualified RetirementPlan is wholly deducllble to the tax­payer LPC In the year of contributionbut is not taxable at that time to theprofessional employee and neither arethe earnings, growth. Interest or com­pounded earnings over the yearswhile the funds are held In the Plan.ThiS tax deferral concept is obviouslynot the same for an individual tax­payer's personal investments thatyield annual interest such as your sav­ings account.

The advantages of such a QualifiedRetirement Plan can be illustrated bythe following example: Assume youare married and have a 525,000 tax­able income and are in the 36% taxbracket. If you placed 10"10 or $2.500in a Qualified Retirement Plan. thenyou would have reduced your taxableincome to 522.500 which computes totaxes of $5.180 and a balance of517,320 after tax spendable income.On the other hand. jf you did not havea Qualified Retirement Plan. then in

82

order to place 52.500 In a savings pro­gram you wou Id need S3.960 oftaxable Income. Your spendable in­come under the same Circumstanceswou Id be 516,480 ($25.000 less $6.020taxes and S2.500 placed In savings).

Of course, monies distributed by thePlan are subject to taxation whenwithdrawn. However. upon retirementor disability. you would normally be ina lower or possibly nominal taxbracket.

Cash in the Qualified RetirementPlan can be Invested In several typesor combinations of investments: ac­cordingly. the yield, earnings, growth.Interest or losses depend on the In­vestment. For example, such fundsmay be Invested as follows: (1) Incommon trust funds; (2) In life in­surance; (3) In stocks. bonds andbills; (4) In real estate; or. (5) In a com­bination of these plus others undercertain IRS rules. It is staggering tocompute the potential growth from in­vestments held for a long durationwith earning thereon compounded taxfree. For example. 52.500 invested an­nually at a 6% growth rate will yieldS197.645 at the end of thirty years($75.000 actual contribution).

Though Qualified Retirement Plansare available for both the LPC ("Cor­porate Plan") and the self-employed("HR-10" or "Keogh Plans"). a Cor­porate Plan and an HR-10 plan aresignificantly different. The CorporatePlan permits higher contributions (upto 25% of each profeSSional employ­ee's compensatlon) than the HR-1Oplan which presently permits 10%or $2.500 of annual salary. whicheverIS less However, Congress is con­Sidering Increasing thiS amount toS7.500. HR-10 imposes less flexiblerules on employee membership. on

George N. Plastiras is a member of the firm ofDavidson, Plastiras & Home, Ud., one of thefirst legal professional corporations in thestate. This article was writlen by Mr. Plasfiraswith the help and assistance of Harvey L. Bell,who is also a member of the firm of Davidson,Plastiras & Home. Ud.. Utile Rock.

vesting of contributions and on agesfor distributIOns On the other hand.the Corporate Plan permits exclUSionof certain employees from such plan(at less expense) and a gradual orlong vesting schedule to encourageemployee retentIOn (at further less ex·pense) and more fleXIbility as to diS­tribution prOVISions Generally speak­Ing. the Corporate Plan IS a tallor­made document With a great degreeat fleXibility and the HR-lO IS a rigiddocument.MEDICAL PLAN

Probably the second most importanteconomiC aspect of the LPC is theMedical Expense Retmbursement Plan("Medlcal Plan"). ThiS IS becausemost profeSSionals are unable toSignificantly uttllze medical expensedeductions In their tax bracket. An un­Incorporated practitIOner seldom ex­ceeds the 3% of adjusted gross in­come medical deduction expense andthus loses any deduction for such ex­penses. Conversely. a professionalemployee can be covered under aMedical Plan whereby the LPC canpayor reimburse hIm for medical ex­penses Incurred by the professionalemployee, and his spouse and de­pendents - which brings us back tothe lODc dollars.

To illustrate: Unincorporated Mr.Lawyer has an adjusted gross incomeof $40.000. His family's medical ex­penses for the year include $325 fordrugs. 5320 for medical Insurance andS1.500 for doctors. dentists. eye-glass­es, etc. Mr. Lawyer's medical deduc­tion for the year IS only S620 (notethat the S1.525 balance IS not deducfl­ble). On the other hand. IncorporatedMr. Attorney has the Identical factsexcept he has a Medical Plan. Mr. At­torney's employer. the LPC, reim-

The Arkansas Lawyer

l

•

burses him $2,145 for his medical ex­penses which Mr. Attorney puts backin his pocket, tax-free and the LPG de­ducts the total $2,145 reimbursement.OTHER ECONOMIC CONSIDERA­TIONS

There are many other frequentlycited economic reasons to considerincorporation. but fundamentally eachone is related to the economic cent­dollar concept. Some other importantconsiderations are: (1) As a profes­sional employee you may receive upto $50,000 of group term life insurance("Group Life") fax free and the pre­miums are deductible as an expensefa fhe LPG. Also, Group Life in­surance is particularly attractivewhere the LPG can qualify and there­by include a member who may other­wise be uninsurable. In addition.Group Life insurance can be assignedthereby making it a valuable estateplanning tool. Arkansas presently per­mits the purchase of up to $100,000Group Life; however. the cost ofcoverage above $50.000 is at a slighttax cost to the professional employee.(2) As a corporate employee's sur­vivor, your wife may be paid a deathbenefit of up to a maximum of $5,000which is not income to her and thecost is a deduction to the LPG. (3) Un­der current tax law, corporations aretaxed at 22% on the first $25,000 oftaxable income and 48% of amountsin excess thereof. Suppose a new of­fice is desired. It can be advantageousto accumulate dollars taxed at 22% inorder to obtain funds for expansion

April, 1974

rather than tak ing personal after taxdollars to do this, which are generallytaxed at a higher rate. However, be­fore deciding to use that approach, itis wise to analyze the IRG rules on ac­cumulated earnings. (4) Disability in­come insu rance of a professional em­ployee is deductible to the LPG. How­ever, the disability income receivedwould be treated as income to thelawyer-employee, except for the $100per week exclusion. Further. thiswould alleviate the LPG of paymentswhile the attorney is non-productiveand relieve the burden on the remain­ing attorneys. (5) A corporation canhave a fiscal year rather than a calen­dar tax year. This permits flexibility onboth the initial year (which can be lessthan 12 months) and on subsequentyears. For example. a professional em­ployee might receive his end of yearbonus on December 31 or on January1. One way it is taxable in the Decem­ber calendar year and the other way itis taxable in the January year. Suchflexibility is normally unavailable tothe private practitioner who has to payincome tax on income in the calendaryear of receipt.OTHER FACTORS

The LPG is not to be evaluatedsolely on its economic aspects be­cause there are non-economic facetswhich may encou rage or deter a deci­sion toward incorporation. These are:(1) flexibility in transfer of interests;(2) perpetual existence; (3) a degreeof limited liability; and, (4) centraliza­tion of management and operation.

Any attorney who has undergonethe expansion or contraction of a part­nership can most likely bear witnessthat the LPG's transfer of a stock cer­tificate pursuant to a pre-arrangedagreement can be both economicallyand emotionally easier to accomplishthan dissolving a partnership. Thepartnership, unless otherwise ar­ranged (some attorneys occasionallyprocrastinate as to their own affairs)faces the legal tax formalities requiredto administer and value a deceasedpartner's interest in the partnershipwhich can be time-consuming andcomplicated. On the other hand. theexpansion or contraction of an LPGcan be accomplished by the transferof stock certificates which are restrict­ed as to transferability and which alsohave a pre-arranged "fair price." Fur­thermore, initial incorporators may de­sign the LPG where they can maintainvoting control through the use of vot­ing and non-voting stock or dispro­portionate voting stock. This aspect iscomparable to managing partners of alarge law firm whose counterpartwould be the board of directors of theLPG. As a corporation. the LPG issubject to all the rules of liquidations.mergers, reorganizations. etc.

The LPG has the framework for per­petual existence. The ethics rulesestablish guidelines for retention ofnames of deceased shareholders;however, the removal or addition of aname to the LPG only involves the fil­ing of amended Articles for NameGhange. A partnership is not per­petual under the law. Whenever apartner dies or a specified amount ofpartnership assets are sold, then thetax law requires valuation of the part­nership and recognition of gains orlosses of each partner's interest. Thiscan present difficult obstacles insome situations.

Most attorneys comfortably under­stand joint and several liability. Eachpartner is liable for the acts of anyoneother partner in the course of hisauthority. On the other hand. share­holders are not liable for the acts ofother shareholders. The shareholderowners of the LPG are individuallyresponsible for their professional con­duct and the LPG as employer is re­sponsible under master-servant rules.Accordingly. the professional em­ployees who are shareholders are notjointly liable for each other's pro­fessional conduct although an under­capitalized LPG would quickly runafoul of ethical responsibilities if usedas a shield to avoid liabilities for fail­ing to meet professional standards.This view of limited liability is oftencited, but as a practical matter, legalmalpractice seldom arises and

83

generally speaking. the reputation ofthe LPC would suffer even if thereexists a degree of professional limitedliability.

Quarterly estimates for federal in­come taxes seem to be a dilemma tomany practitioners. This results be­cause of both the "paper work" as­pect and because accurate computa·tions of professional fees in a fluctuat­ing law practice are normally difficult.As an LPC professional employee.taxes are withheld from each com­pensation check whether paid as asalary or as a bonus. A system of a setsalary plus a percentage of collectedbillings combined with discretionarybonuses can provide the LPG withflexibIlity and can serve to level sala­ries from law practice. One furtherbadge of adaptability needs exposure- unless the professional employeehas other significant income. he canreasonably be assured that he will nothave to obtain funds at the end of theyear to pay his taxes because his ap­proximate taxes have been withheldfrom his wages.NEGATIVE FACTORS

Objectivity would suffer an injusticeif the unattractive aspects of the LPGwere not also reviewed. The LPG is aseparate taxable entity under bothstate and federal law. A partnership isa separate entity but it merely files aninformation return and it does not payincome taxes. As a separate entity. theLPC is subject to the double taxationargument and generally costs more tooperate.

A corporation is taxed on its earn­Ings and its shareholders are taxed ondividends paid to them from the pre­viously taxed corporate earnings.Such is the double taxation problem:however. it IS not an unsolvable situa­tion. Many closed corporations inyears past have not been challengedas to small corporate earnings whichresulted partly from employee salariesas long as such salaries werereasonable. Simply staled, unless theLPG has Sizeable capital Investmentsor other peculiar facets, theprofeSSIOnal employees' salaries Willgenerally be of such a nature that theLPG wtll have InSignificant profits andsmall dividends. It must be stated thatthe antiCipated Ilnal outcome of thisview is predictable only with certainreservatIOns because mtnimal caselaw eXists which clearly establishesreasonable compensation for apr.ofessional.

Gostwise, it is generally agreed thatthe LPC is somewhat more expensiveto operate and administer than otherpractices. This is partly due to: (1) an·nual franchise taxes: (2) initial $25.00license with subsequent $10.00 an-

84

nual renewal: (3) increased FICA andunemployment tax: and, (4) tangentadditional paper work such as cor·porate tax returns instead of a part­nership return and preparation of cor­porate documents such as minutes.Furthermore, the lOOc dollars do havetheir cost. e.g .. in order to obtain thedeferred taxation on Qualified Retire·ment Plan contributions for HR-10 orcorporate plans, contributions arealso necessary for all employees. non­professional as well as professionaLWhile this cost can be adjusted bylower salaries, integrating contribu­tions to social security, and vestingschedules. such aspect cannot beIgnored. Other "fnnge benefits" foremployees require a similar analysis:however, It must be correspondinglyrecognized that employee morale,loyalty and retention have both tangi­ble and intangible value which arisefrom providing these benefits,

One last caveat deserves exposure:there are other alternatives to incor­porating the professional practice. Forexample. investments in tax shelterssuch as cattle, depreciable real estate.falms. timber and oil and gas. If youthe professional have time, talent andcomposure to get involved in suchtransactions. then you may want to ac·cept such posture: however, eachpractitioner has to evaluate what de­gree of business venture vs. profes­sional practice is adaptable to him.

The LPG is not a universal salvationto the practitioner; each attorney mustconsider his own personal situation.

However, upon close examination,there are growing numbers who be­lieve their economic foot can comfort­ably fit inlo the LPC shoe. While suchconduit for the practice of a profes­sional may offer the key to bettereconomic dollars, more mileage withan equally comfortable ride can beachieved only if the LPG shoe fits.

It is hoped that these comments willhave demonstrated that the LPG is aviable alternative for you to consider.Hopefully it can place the professionalman on similar economic footing asthe business executive both duringactive employment and upon retire­ment or disability. :I,

Continued trom page 70

Part II a ma,I.ou1 queshonnalfe 10 the enhre memberst"p01 the Ark,ansas Bal AsSOClallon .... '11 prOVIde lhe pelcephon 01 lawyers to....ald lhelr own prott'SSlon 11 ... <11 seNeas a oasas 01 compar,son 01 data Irom the publIC aoa proIessJonal sampleS

8 II Sl'IOold be noled lhal IhP over 100 lImes a year was aresponse gillen by 11 reallOl' wtIO OOV!ously makes eJllenSlYe use 01 legal servoces A.s ,oa,caled lhe moSI Ir€quemresponse was lw,ce a year .... ,:h a lew respondenlS S3y1nglhey had used legal servoces as many as live to l...entylove tomes a yea,

9 M,ssoufl Bar Prenl'ceHall Survey A Motivation.1 Study01 Public Attitude, and Law Ollie. Mlnagernenl (TheM,ssourl Bar 1%31 pp 77.7'9

10 Ibid. P jO11 Juhan B Rouer and Donald 0 Ste,n PubliC Alhtudes To­

ward lIle TrUStworlh,ness Competence and AluulsrTl 01

Twenty selected OCcupahonS Journal 01 AppliedSOcial P,ychology. Vol 1 (March 197tl p 335 my emphas,s

12 The M,ssoun Bar op. ell" pp ~1-1J

13 Roner.and Stein op. cil" pp JJ9..lt\~ Tne M,ssour' Bar op. cit., OO.{;l see especially tables ';'-1

tnrougn 5-KI';' See W,lham Buchan(ln Underst.nding Polilical Varia­

ble, INrw York CharleS SCribner 50 Sons 19691 pp 8S88 lOr 11 bnel but undcrSlllndable d'scuss,on 01 th's lest01 s,gnllicance

The Arkansas Lawyer

Representation of Criminal Indigents

The Public Defender •In Arkansas

Who should represent personscharged with criminal acts in Arkan·sas who cannot afford their own pri­vate attorney, appointed private at­torneys or public defenders? The pur­pose of this paper is to point out theadvantages of a public defendersystem over an appointive system ofassignment of counsel in Arkansasand recommend that system for theentire state.

An accused charged with a crimehas the righ't to counsel. Powell Y.

Alabama, 287 U.S. 45. Amendment 6to the United States Constitution andArk. Const. Art. 2 Sec. 10 provide thatin all criminal prosecutions the ac­cused shall enjoy the right to have theassistance of counsel for his defense.See 21 Am.Jur. 2d, Criminal Law, Sec.318. P. 347. If the accused cannot af­ford his own privately retained coun­sel he is entitled to the appointment ofan attorney. Gideon v. Wainwright,372 U.S. 335.

The pertinent statute concerningassignment of counsel in Arkansas isArk. Stat. Ann. Sec. 43-1203. Itprovides that if any person about to bearraigned upon an indictment for afelony be without counsel to conducthis defense. and shall be unable toemploy any, it shall be the duty of thecourt to assign counsel at his request.In other words. the appointive systemof assignment of counsel.

The appointive system of assign­ment of counsel under the provisionsof the above statute varied in itsoperation as much as there were num­ber 01 judicial districts. Under thisstatute, an attorney was not appointeduntil arraignment of the defendant.Usually. the defendant would appearbefore the court standing alone andthe court would inquire concerningcounsel immediately after the chargewas read to him and he was asked ifhe understood the charge. If the de­fendant advised the cou rt that he didnot have counsel. the court wouldmake further inquiry to see if he in­tended to employ any. If the defendantthen told the court that he did nothave funds with which to hire counsel.the court would appoint him counselat that lime or advise him that hewould be notified when counsel wasapPointed. In some instances, no fur­ther inquiry was made as to money

April, 1974

by Don LangstonSebastian County Public Defender

and property with which to hire an at­torney. Perhaps the financial status 01the defendant was previously knownto the court: ordinarily. however, fur­ther inquiry was made into the finan­cial status of the defendant prior tothe appointment of counsel. Then.when it was determined by the courtthat the defendant was unable to em­ploy an attorney, one or more wouldbe appointed for him under the pro­vision of Ark. Stat. Ann. Sec. 43-1203.

The method by which a particularattorney was assigned varied fromjudicial district to jUdicial district.Some of the appointments were madethe following ways: 1. A few attorneysamong many attorneys of the local barassociation regularly practicedcriminal law and these attorneys wereusually the only attorneys who ap­peared at plea and arraignmentsessions. The assignments of counselwere made from these attending at­torneys on that day. 2. Some courtskept a list of every practicing memberof the local bar and made assign­ments of counsel on a rotating basisfrom this list. Counsel was usuallyassigned by letter. (The FederalCourts also used and still use thismethod.) 3. Some cou rts assigned theleast experienced attorneys from thelocal bar as appointed counsel. 4. Ifthe case appeared to be serious andcomplex, the court would assign anexperienced attorney as counsel andan inexperienced attorney to assisthim. 5. Other methods that will not bedescribed herein,

Obviously. these different methodsof assignment of counsel under Sec,43-1203 affect the rights of the defen­dant In various ways throughout thejudicial districts of Arkansas. In somedistricts. he will receive effectiveassistance of counsel and in othersnot so effective, There are also otherdisadvantages to a defendant. Thesebeing (1) several critical stages of hiscase will pass without counsel prior tothe assignment at arraignment. and(2) the defendant is not entitled tocounsel for misdemeanors. A dis­cussion of these two disadv;;intages isappropriate.

(1) Critical stages disadvantage. If adefendant is assigned counsel atarraignment in Circuit Court. he hasbeen without counsel usually through

several important critical stages of hiscase, These stages could be that hehas been interrogated by the policewithout counsel. has been in a lineupwithout counsel. and has beenarraigned in the examining court andhas had a preliminary hearing withoutcounsel. Although the case is notdirectly in point, the language con­tained in it is appropriate to thrs dis­cussion. In Davis v. Stevens, 326 F,Supp. 1182 (D.C. N.Y. 1971), the courtstated that the basic right to represen­tation by counsel in criminal proceed­ings extends itself to every stage ofthe proceedings, formal or informal. incourt or out. where counsel's absencemight derogate from the accused'sright to a fair trial. See also Childs v.Cardwell, 320 F. Supp. 1365 (D.C.Ohio, 1970), wherein the court said acritical stage in a criminal proceedingconsists of any confrontation betweenthe accused and authorities in whichdefenses are waived or lost. or rightsprejudiced. American Bar AssociationStandard 5.1 (Providing Defense Ser­vices) recommends that counselshould be provided at every criticalstage of the proceedings and empha­sizes the importance of early appoint­ment. Obviously Ark. Stat. Ann. Sec.43-1203 does nol meet this test as theearliest that appointment can be madeis arraignment in Circuit Court afterseveral critical stages of the casehave passed.

(2) Misdemeanor disadvantage. Theabove statute only applied in felonies.A defendant was not entitled to coun­sel on a misdemeanor even if he couldsuffer punishment up to a year in jail.See Winters v. Beck, 239 Ark. 1151,397 SW.2d 364, Cer!. denied 385 U.S.907 and Cableton v. State, 243 Ark.351. 420 SW. 2d 534. However. thestatute would not hold up In the faceof later proceedings in the Winters'case Supra. Winters v, Beck, 281 F.Supp. 193 (D.C. Ark. 1968). affirmedBeck v. Winters, 407 F. 2d 125 (8thCir. 1969). Cert. denied 395 U.S. 963.The Federal District Court held that adefendant charged With a serious mis­demeanor (usually defined as 6months in jail. fine of $500.00 or both)was entitled to appointed counsel.This holding was further extended bythe decision in Argersinger v. Hamlin,407 U.S. 25 (1972). wherein the court

85

held that a defendant was entitled toappOinted counsel when he may suf­fer even one day In Jail lor a misde­meanor Amencan Bar AssociationStandard 41 provides that counselshould be appointed In all crimInalproceedings for offenses punishableby loss of liberty, except those typesof offense for which such punishmentIS not likely to be Imposed. regardlessof their denomination as felonies. mis­demeanors. or otherwIse

These disadvantages were so acutethat It was decided that somethinghad to be done, Some of the Judicialdistricts now have what are called thedefender system of assignment ofcounsel Under thiS system a full timepublic defender IS appointed for thedistrict and the courts then assign thepublic defender 10 represent personswho cannot afford their own attorney

There IS presently no statute provld·Ing for a public defender In Arkansas.These offices have been created InthiS state pursuant to the authority ofthe Omnibus Crime Control And SafeStreets Act of 1968 passed by theUniled States Congress. 1he pro-

grams have been set up as pilot pro­grams under thiS law through grantsof federal funds admInistered by theArkansas Commission on Cnme andLaw Enforcement These federal fundshave usually been matched on a 25 0

0

baSIS by the affected countiesThese pdot programs were put Into

operation to determine whetherArkansas should convert entirely tothe defender system of assignment ofcounsel In other words. the fundingwould remain the same for a few yearsto see If these programs Improved theadministration of Justice, and if theydid. an ellort would be made to per­suade the Arkansas General Assemblyto enact a public defender bill to pro­vide a program for the entire state

The first defender program was pro­vided In 1971 In the Twelflh JudicialDlstnct (Sebastian County) Subse 4

quently, programs were made avall 4

able In the SIxth Judicial District(Pulaski and Perry Counties). theFourth Judicial District (WashingtonCounty), Fourteenth JudIcial District(Boone. Marlon. Newton. Searcy. VanBuren and Cleburne Counties) and for

MISSISSiPPi County alone Each ofthese pilot programs 15 different(although there are Similarities)These programs are governed bygUidelines set forth In the grantawards from the Arkansas CrimeCommission and gUidelines estab­lished locally by practice becausethere IS no statutory authOrity for apubliC defender

As was stated above these five pro­grams are operating With various dlf 4

ferences The more ambitiOUS pro­grams operate baSically as follows:

1 Felonies There are various sta9 4

es of these offenses at which thepublic defender Will be appointed (a)lineup The authOrities have been no­ttlled to adVise the public defender tobe present when an accused IS to beviewed In a lineup and IS unable toemploy counsel In order to satisfy therequirements of Kirby v. Illinois, 406US 682 (1971) If the accused deSiresthe assistance of the publiC defender.he will attend to protect the accused'snghts at the lineup. (b) Interrogation.If the police are interrogating an ac­cused and he deSires the presence of

Don Langston is shown interviewing a prisoner in the Sebastian County jail. Mr. Langston graduated from the University of Arkansas in 1959 with aBA degree and received his law degree from the University in 1961. He was a trial counsel for five years with the Arkansas State Highway Com­mission and served for three years as a Deputy Attorney General. He has also served as a deputy prosecuting attorney In both Pulaski andSebastian counties. For the past two years he has been the public defender for the 12th judicial District which comprises Sebastian County.

/

86 The Arkansas Lawyer

87

afford his own counsel). The poorneed representation at every criticalstage of the proceeding as much asthe affluent; the poor need represen­tation on misdemeanor offenses asmuch as the rich: the poor need effec­tive counsel as much as the personwho can afford his own: and the poorneed their rights protected as muchas do persons who can employ theirown attorney. The appointive systemcannot provide these services. Thedefender system can. The State ofArkansas needs a public defendersystem approximating House Bill 677of 1971.

If the Arkansas General Assemblydoes not enact adequate legislation tocover the sUbject. and fund it ade­quately, it could deteriorate into ahaphazard system. or perhaps, it willbe taken away from the state and ad­ministered by others. J-

Maybe he'schanged pro­fessions, Roy

Archie C. McLaren, Jr.Directors Plaza·Sulte 202, 3035 Directors Row, Memphis, Tenn. 36131Phone: 901/744_6420

He says hehas nofederal practice

WlU,'SHIIOC'oYmI'

the General Assembly does notprovide for defender systems duringthe 1975 regular session, then theprograms will cease to be pilotprograms and the Crime Commissionwill have to decide what, if any, assis­tance it will give for defense servicesin the future.

The 1975 General Assembly shouldpass a defender act for Arkansas tomake defense services uniform for theentire state. It should provide for statefunding to help local governmentalunits provide adequate defense ser­vices for the poor.

Everyone concerned is convincedthat the pilot public defender pro­grams that are in effect clearly showthat there is a need for a pUblic de­fender system to provide adequate de­fense services for the poor. (This ar­ticle has been written on the premisethat the person is indigent and cannot

There is no way the citizen, whatever he pursues, can escape the spreading influence offederal law. It is a 1974 daily fact of life.

To adequately represent his citizen clients. today's lawyer must have federal law readily athand. Many thousands of successful lawyers rely heavily on United States Code Annotatedto bring them the federal statutes that affect their clients. together with all court decisionsthat construe them.

USCA can be a working tool for you, helping to build your practice. See your West rep­resentative or write us for facts.

appointed counsel prior to answeringquestions under the provisions ofMiranda Y. Arizona, 394 U.S. 436(1966) the public defender is called bythe authorities. The public defenderthen advises the accused prior to anyquestioning. (c) Preliminary Hearing.At arraignment in Municipal Court ifthe person cannot afford counsel, thepublic defender is appointed by theexamining judge to represent the ac­cused at the preliminary hearing. Ifthe accused is bound over to CircuitCourt. that court ratifies the examin­ing court's appointment and thepublic defender continues to rep­resent the accused in Circuit Courtand thereafter. (d) Arraignment. Ifcharges are filed direct in CircuitCourt and the public defender has notpreviously been assigned the case,the appointment is made at this pointafter inquiry as to financial ability.

2. Misdemeanors. In order to satisfythe holding in Argersinger v. Hamlin,Supra, a member of the public de­fender staff attends each session ofMunicipal Court and. if an eligibleperson desires counsel. a public de­fender is appointed in court that dayafter inquiry about financial ability.The case is tried that day or, if it iscomplex or witnesses need to becalled. the case is continued. Appoint­ments in misdemeanors are made onlyin this way for obvious reasons. To doit otherwise would be chaotic.

As can be seen, these public de­fender programs. as implemented,have solved the main disadvantagesof the appointive system. The publicdefender should be effective counselas he would be a full-time criminal de­fense lawyer and should acquire moreexpertise in that phase of the law thanthe general private practitioner. Fur·ther, the programs provide for earlyappointments in felonies and rep­resentation in misdemeanor cases.

The above described implementa­tion of the public defender programsin Arkansas follows closely the pro­visions of House Bill 677 of the 1971General Assembly which provided fora public defender system. This billpassed the House but not the Senate.The grant awards from the CrimeCommission for public defender pro­grams provided that the programsfollow the provisions of House Bill 677as closely as possible. This bill istaken in large part from the UniformLaws Commissioner's Model PublicDefender Act. The differences in thetwo will not be discussed herein.

As related above. the pilot publicdefender programs are funded by theCrime Commission. Because they arepilot programs, provisions for fundingthem are provided only until 1975. If

April, 1974

JURIS 0 ICTUMby C.R. Huie

Executive Secretary. Judicial Department

Calendaring Conflicts - State and Federal CourtsThe State·Federal Judicial Council of

Arkansas. an association of State andFederal Judicial officers created bySupreme Court rule. held its regularmeeting Fnday. October 5 in Little Rock:Chairman. Chief Justice Carleton Harrispresiding.

Chiel JUdge Pat Mehaffy of the EighthCircuit Court of Appeals moderated apanel discussion of "Calendaring Con­flicls Between State and FederalCourts." Members of the panel wereChief Judges Smith Henley and OrenHarris. and Circuit Judges Elmo Taylorand Henry Britl. Following the discus­sion the Council went on record as en­dorsing the principle that judges of bothState and Federal Courts give priority tothose cases which are first set for trial.based upon the date of the order sche­duling the trial date. It was agreed by allpresent that open lines of communica­fion befween Slate and Federal Judgesand mem bers of the Bar practicing be·fore their courts provide the means ofsolution of most problems encounteredby Judges In the conduct of theIr courts.

COURT SCHEDULESThe calendar of court days In Ar·

kansas shOWing when and where the

Judges will be holdIng court has beenprepared. Facilities are not available toprint and distribute the calendar to all at­torneys. The calendar is on file in the Of­fice of the Executive Secretary. JudicialDepartment (375-7001). and al the Ar­kansas Bar Center (375-4605).

MAIL TO INMATESRobert A. Newcomb, Attorney for In­

mates, Department of Correction, Stateof Arkansas. has requested that thefollowing be brought to the attention ofmembers of the Arkansas Bar.

Any mail addressed to an inmateshould have the inmate's name and Ar­kansas Department of Correction num­ber on the envelope. In order to Insureproper delivery. Example:John Doe ADC 00000Arkansas Department of CorrectionCummins UnitPost Office Box 500Grady. AR 71644

If the inmate IS at Tucker. the mallshou Id be addressed as follows:John Doe ADC 00000Arkansas Department of CorrectionTucker Intermediate ReformatoryTucker. AR 72168

It IS departmental policy nol to open

mail to Inmates from attorneys. Underdepartmental rules an inmate is notallowed to personally receive cash.checks or money orders through themail. The normal procedure ;s for theabove items to be removed from the en­velope and a notice given 10 the inmatethat the money has been deposited tohis inmate account. Therefore. it is re­quested that anytime an attorney wishesto send money to an inmate in the Ar­kansas Department of Correction. thathe send it by the use of a United StatesPostal Money Order and indicate on theenvelope that it may be opened forpostal inspection.

SUPREME COURT OFTHE UNITED STATES

The Office of the Clerk. SupremeCourt of the United States. has a projectto list all accredited attorneys on ma­chine-readable tape. All attorneys whoare members of the Bar of the SupremeCourt of the United States are urged 10fill out the form below. returning it to theClerk. Supreme Court of the UnitedSlates. Washington. D.C. 20543. andmarking It for the allention of BARPROJ ~"

~

ZIP _

ZIP _

r-------------------------------------------------SUPREME COURT OF THE UNITED STATES

Information Form For Attorneys Admitted to Practice Before the Court

NAME DATE ADMITTED _

BUSINESS ADDRESS: _

Sireet _

City & Slate

RESIDENCE ADDRESS: Street _

City & State _

SOCIAL SECURITY ACCOUNT NUMBER _

-------------------------------------------------~88 The Arkansas Lawyer

A New Approach to Legal Aid

The Sebastian County Legal Aid System

Full-time legal aid has now beenavailable to indigents in SebastianCounty for over a year under a pro­gram organized by the SebastianCounty Bar Association and Sebas­tian County Judge Glenn Thames. Theprogram IS locally funded and super­vIsed by members of the local bar andJudge Thames. Response has beenheavy and most members of the localbar are enthusiastic about the pro­gram.

The office operates on a cu rrentbudget of $26,630 and is staffed by a lull­time attorney. Harry Foltz, and asecretary. Office space, library, anduse of a copying machine are donatedby the Sebastian County Law Library,and funding is provided by the Sebas­tian County Quorum Court with

federal revenue sharing funds. Thereare no state or federal controls on theprogram.

The local bar association believesthat the program is unique because itis altogether locally controlled. Theattorney IS responsible to the countyjudge and the Sebastian County BarAssociation Legal AId Committee andoperates under guidelines drawn upby the Legal Aid Committee andJudge Thames.

Criminal cases are not handled bythe offIce. but are referred to theSebastian County public defendersoffice.

The idea for the office originatedwith Circuit Judge Paul Wolfe who teltthere was a need in the county for ex­panded representation of the indigent

In civil cases. He approached thepresident of the local bar association.Don Callaway. and Bob Dawson. theImmediate past president. about thefeasibility of setting up such a pro­gram. Chancellor Warren O. Kim·brough was contacted and gave hisfull support to the Idea. The four menthen met wHh County Judge GlennThames. who volunteered to see iffunding for the program could bearranged. Judge Thames appointed aQuorum Court Committee to study thefeasibility of the project and. after afavorable recommendation of thecommittee. the project was funded bythe Quorum Court with a bUdget of$26,000 In January, 1973. Harry Foltzwas hired as the legal aid attorney,and on February 1. 1973. offices were

Sebastian Legal Aid Attorney Harry Foltz (left)is shown conferring with Sebastian CountyJudge Glenn Thames. Foltz is the full-timelegal aid attorney of Sebastian County and thelegal aid was established largely through theefforts of Judge Thames.

April, 1974 89

opened In the Merchants NationalBank Building In Fort Smith near thecounty law library.

President Callaway appointed alegal aid committee consisting of BobDawson. chairman: Jerry Canfield.Willard Smith, and Alan Wooten tosupervise the office. assist the legalaid attorney with legal expertise whenneeded. and draw up an operationpolicy for the office and qualificationguidelines for the applicants.

A great deal of study was given tothe guidelines. The committee and thelegal aid attorney wanted to arrive atguidelines that would insure legalrepresentation for all of the poor whoneeded It. without Infringing on thepractice of private attorneys. ArkansasSocial ServIces was consulted andtheir regulations at that time statedthe following monthly expenses werenecessary for a minimum subsistencelevel "compatible with decency andhealth .. '

Rent or house payment per family. $40.00Utilities per family. . .. 15.00Medical expense per family ... 20.00Food per adult 45.00Food per child. .60.00Clothing per adult ... 1500Clothing per child .10.00Personal expenses per family. . .. 20.00Transportation to work as paid.

cases have been accepted In the lastyear that do not meet the guidelines.The legal aid office may handle allcivil cases of a non-fee generating na­ture for qualified applicants who areresidents of Sebastian County or whowork In Sebastian County. In its firstyear of operation the office handled693 cases.

Referrals to the office come frommany sources Including social agen­CIes, Judges, lawyers. and persons inthe community who are aware of theprogram. Newspaper and televisioncoverage was given to the office whenit first opened and this helped to makethe public aware of its existence. Thephone number is listed under severaldifferent logical headings in the tele­phone directory to make the officeeasy to find for persons unfamiliarwith government listings and unawareof whether the legal aid office is acity, county, state, federal or privateagency.

In addition to trying to solve legalproblems for Indigents. the office of­ten acts as a referral service to othersocial agencies. The legal aid at­torney has found that often his clients

are not aware of any social agencythat can help them. For example. awife with several young children mayhave been beaten and deserted by herhusband and left with no money what­soever for food, rent or othernecessities. Mr. Foltz attempts notonly to help such an applicant withthe divorce she may desire. but alsopersonally calls a social worker to seethat the woman and her children getimmediate assistance in getting food,shelter, medical aid, etc. He thenfollows up to see that the serviceswere actually obtained after thereferral was made. If the services werenot obtained. he finds out why and isoften able to straighten out theproblem so that the application for dif·ferent types of aid can proceed.

Sebastian County Legal Aid Com­mittee Chairman, Bob Dawson. be­lieves that there may be many ways toorganize a legal aid program, but hefeels that the Sebastian County pro­gram serves hundreds of qualifiedpeople who need legal help withoutinfringing to any significant degree onthe private bar. and that is hard to

beat. J-.~

Assuming for purposes of comput­ing food and clothing allowances.there are two adults and two childrenIn a family. the amount necessary tomeet the monthly minimum require­ments is $295 or $73.75 per week. Thisdoes not include transportation ex­penses to work or child care expensewhile working, bott1 of which can befairly substantial. The committeefound it difficult to see how an at·torney's fee cou Id come out of abudget like this. and concluded. afterstudying all data, that the qualificationguideline for an individual should be$55 per week net pay with $5.00allowed for each dependent. exclud­ing applicant. In addition, if allparents present in the home were em­ployed. child care expenses of up to$10 per week per child would beallowed. No amount of child care ex­pense wou Id be allowed that was notactually incurred.

The committee empowered the legalaid attorney to determine whether ornot to accept specific applicationsthat do not meet the guidelines, butonly after "considering the objectiveof the program, the type of case in­volved. the need for relief, the fact thatpersons should employ a private at­torney whenever possible." Very few

90

We've put it alltogether in the largestTrust Departmentin South Arkansas.

FIRST NATIONAL BANKOF EL DORADO an

The Arkansas Lawyer

A Federal Clerk's Response to

Five Most Frequently Asked Questionsby E. A. Riddle, Clerk

United States District Court, Western District of Arkansas

When asked recently what fivequestions of most general interest areput to the clerk of a United States Dis­trict Court by attorneys, I stated theywould probably be: (1) questions con­cerning admission to the bars of theUnited States District Court. Court ofAppeals and Supreme Court; (2)whether or not expert witness fees aretaxable as costs; (3) when the districtcourt loses jurisdiction in a case onappeal and when jurisdiction is recon­ferred; (4) how to satisfy a judgment inthe United States District Court; and(5) various questions concerning ap­peals.

When an attorney requests informa­tion concerning admission to the barof the United States District Court. acopy of the local rules and an applica­tion form are mailed to him. and hisattention directed to Rule 1. This rule.in brief. provides that the applicantmay obtain a certificate from the Clerkof the Supreme Court of Arkansascertifying that he is a member in goodstanding of that Court. When the ap~

plication form (which is self-explana­tory) has been filled out and approvedby the Committee on Enrollment forthe particular division, the applicantmay appear with his petition and cer­tificate and be admitted by the court.

Those desiring to be admitted to the

April, 1974

Court of Appeals are advised to writeto Mr. Robert C. Tucker. Clerk. UnitedStates Court of Appeals. SI. Louis.Missouri 63101. and request an ap­plication form. The form will be self~

explanatory. (See Rule 46. FederalRules of Appellate Procedure.)

Those desiring to be admitted to theSupreme Court of the United Statesare advised to write to Mr. MichaelRodak. Jr.. Clerk. Supreme Court ofthe United States. Supreme CourtBuilding. Washington. D.C .. and re­quest an application form. The form.too. will be self-explanatory. It is nolonger necessary to appear beforethat court for admission. (SeeSupreme Court Rule 5. revised Oc­tober 12. t970.)

There are inquiries as to whether ornot expert witness fees are taxable ascosts. The principle that has becomeapplicable in the Western District ofArkansas is that they are not. Thegeneral principle applicable is thatonly the regular statutory fees andallowances are taxable. The actualfees and expenses paid to such wit·nesses are allowable only in excep­tional cases where dominating rea­sons of justice compel the allowance.Such an allowance generally requiresa prior approval of the court.

As to termination of jurisdiction of

Mr. Riddle received his undergraduate degreeat Samford University and his LLB degreefrom Cumberland University. He is a formerAssistant United Stales attorney for the west­ern district of Arkansas and was serving inthai capacity when he was appointed on April'9. '965. as the clerk of the United States Dis­trict Court. Western District of Arkansas. He isa member of the Arkansas and Federal barsand the bars of the Eighth Circuit Court of Ap­peals and Supreme Court of the United Stales.

the District Court when a case is ap­pealed. it terminates when the case isdocketed in the Court of Appeals.Jurisdiction is not reconferred on theDistrict Court until a Mandate (notjust a written opinion) is issued by thereviewing court as prescribed by Rule41. F.R.A.P. (See Floyd v. Lawrence.Federal Rules Decisions. 116 D.C.Tex .. 1973).

There are no provisions in theFederal Rules or Statutes as to how tosatisfy JUdgments Therefore, the statelaw is to be followed. Satisfaction of aJudgment should be noted by counselon the margin of the record. However.the Clerk's Office has "Satisfaction ofJudgment" forms available to at­torneys which authorize the Clerk tonote the satisfaction. The forms canbe executed and mailed to the Clerk.

At times in the past. attorneysrepresenting defendants who havehad judgments rendered against themwould want to deposit money or acheck in the registry of the court andask the court to order the money paidto the person in whose favor the judg­ment had been rendered. This prac­tice has been discouraged in theWestern District of Arkansas. Rule 67of the Federal Rules of Civil Pro~

cedure provides that money or thingsmay be deposited in the registry of thecourt but it is contemplated that thereis some dispute as to who is entitledto them. Usually the money proposedto be deposited to satisfy a judgmentwould be in the form of a check or adraft on an out-of-town concern. Thecourt would not direct the payment ofsuch money out of the registry of thecourt until it is positively establishedthat the check or draft has cleared.Sometimes it took weeks.

Probably the subject most inquiredabout is appeals. It would be im­possible to discuss here all of thevarious questions that arise on thissubject. but it is suggested that anyattorney who has not appealed a Civilcase but is contemplating such ap­peal should study Rules 10Ib). 28 and30 of the Rules of Appellate Pro­cedure. and Rule 8 of the Rules of theCourt of Appeals for the Eighth Cir­cuit. Rule 8 provides that "pursuant toRule 11 (e) of the Federal Rules of Ap­pellate Procedure a certified copy ofthe docket entries in the proceeding

91

I-Iome Federal Savings

410 South StreetIndian Mall Shopping CenterJonesboro, Arkansas 72401932-1561

below shall be transmitted to thiscourt In lieu of the enlire record." IIwill be noted that this provision, byauthority of Rule 11 (e). supersedesRule 10(a) and certain other pro­visions of Rule 11. The only papersthe Clerk forwards to the Court of Ap­peals are a copy of the Notice of Ap­peal and a certified copy of the docketentries in the proceedings in the Dis­trict Court. This constitutes the recordon appeal for the pu rpose ofdocketing a civil case.'

Attention is called to Ihe followingprovision in Rule 10(b): "Within 10days after filing the notice of appealthe appellant shall order from the re­porter a transcript of such paris of theproceedings not already on file as hedeems necessary for InclUSion In therecord. "

There IS a "standing" direction bythe Judicial Council of the Eighth Cir­cuit that clerks forthwith forwardcopies of notices of appeal anddocket entries in all cases as soon aspossible after the filing of the notice.(The reason given for said direction is10 transfer superviSIon of preparationof transcripts to the Court of Appealsand to expedite the submiSSIon of ap­peals.)'(Rule 11 of the US Court of Appeals asamended effective Feb. 15. 1974, is ap-

plicable to all criminal and in formapauperis civil cases, habeas corpus, 28USC 2255, and banKruptcy cases, andappeals from Social Security cases. It

provides, among other things, that thosematters be heard on the origina' record asdefined by Ru'e 10(a) of the Federal Rulesat Appellate Procedure).

92

Compli ments of the Trust Department

of the 1\ 1erchants ]\' ati anal Bank

of Fort Smith, Arkansas.

The Arkansas Lawyer

Replevin

ACT 144 OF 1973

ARKANSAS' ANSWER TO

FUENTES V. SHEVIN

by Griffin Smith

In the turbulent wake of SniadachY. Family Finance Corp.,l and Fuen­tes v. Shovin,2 counsel for banks,finance companies or agencies ex­tending credit on personal collateralmay well be justified in feeling belea·guered. These decisions havetouched off a tempest of litigation andachieved a profound alteration in thestructure of commercial and con­sumer law. Just how far the progenywill go is by no means certain, but thefirst obvious necessity effectuatedwas adoption of legislation designedto fill the void created. As to theremedy of replevin, Act 144 of 1973' isArkansas' attempt to deal with theproblem.

Sniadach deals exclusively withgarnishment but its doctrine, underwhich prior notice and opportunity tobe heard were held essential to dueprocess, was readily applicable to amultitude of other creditor remedies,replevin included. Fuentes soonfollowed and established similar re­striction where personal property,collateral for a loan, was sought bycreditors deeming themselves inse-

April, 1974

cure. In the process, the Court laid torest the notion generated by Sniadachthat only "necessities of life" such aswages were under the constitutionalprotective shroud. The FourteenthAmendment's procedural due processrequirements were held to apply to the"taking" of any significant propertyinterest, even one in which the debtorhad only qualified interest.

The net result - summary taking ofpersonal property by legal process,without opportunity for prior judicialhearing - offends due process andstatutes permitting the practice arevoid.

Act 144 of 1973 was designed tomeet the exigencies of Fuentes. Ofnecessity, it was drafted and adoptedwithout benefit of many judicialdecisions that emerged from the na­tion's courts subsequent to June 12,1972, the date of Fuentes' decision,because most were unannouncedduring the interim to February 14,1973 when engrossment, coupled withan emergency clause, signalled Act144's effective date.

Prior to Act 144's adoption, a patch-

work procedure arose, similar to thepractice followed in preliminary hear­ings in chancery courts, for the pur­pose of awarding temporary relief indomestic relations cases. Prac­titioners filed suit and applied to thecircuit judge for entry of an orderdirecting the debtor to appear at astated place and time to show causewhy a writ of replevin should notissue. This order was served with thesummons. The effect was to accord anopportunity for hearing prior to issu­ance of the writ. the essence of Fuen­tes.

The procedure left a great deal tobe desired. Aside from the lack ofspecific statutory sanction (a minorobjection, as the same could be saidof the chancery practice, readily an­swered as within a court's inherentrule-making power), it resulted in un­necessary waste of judicial time, be­cause many debtors failed to respond,and it was dependent on having ajudge in the county where the hearingwas to be held, a luxury available onlyin a limited number of Arkansasjudicial districts.

93

94

Griffin Smith is a native of Paragould and a graduate of the Universityof Arkansas School of Law. He is the author 01 Arkansas Forms WithPractice Commentaries printed by West Publishing Company, and isgeneral counsel for Union National Bank of Uttle Rock as well ascounsel for Ford Motor Credit Company. He has served as a specialagent for the Federal Bureau of Investigation as well as assistantUnited States Attorney for the Eastern District of Arkansas, and in addi·tion to membership in the Pulaski County. Arkansas. and American 8arAssociaflons, is a fellow of the International Academy of Trial Lawyers.

1 J59 us 337 89 5 et 1820 23 L Ed 20 349 11969J2 407 US 67 92 5 Ct 1963 32 l Ed 2d S56 (1972)3 Ark Slats sectlOfl 34·2119 et seq

4 Bolend v Esse.. County Bank & Trust Co 13 U C CAep 38 USCC Mass Aug 15 1973

5 AtSam$ v SooJthem Cahlornla Flf$t NatIonal Bank Hamp.tori v Bank 01 Calilorn,a 13 U e e Rep 161 90'1 e,r Oct4 1973

6 Blcnel Optical Lat:toratOnes Inc v Tne Marquette Nat'Bank No 73-1330 {81h Clf Nov 7 19731

7 Mitchell v W T Grant Co No 72-6160 (U 5 L W Dec11. 19731

Sniadach, holding that even privateacts of repossession are subject toprior hearing requirements.';

Such a view IS presently In aminority. the bellwether of the flockholding to the contrary.' The EighthCirCUit has JOined the maJorlty.6 Ifobliquely. applying the same reasoningto a banker's hen as the Ninth CirCUit ap­plied to phYSical repossession.

The ramificatIons of Fuentes are alltoo clear. and are attended by adegree of uncertainty that IS whollyunwarranted. The deCision was by 4 to3 vote. Justices Powell and Rhenquistabstaining. For thiS reason. somecourts have refused to recognize it asbinding

The Supreme Court of the UnitedStates. apparently cognizant of thewhirlWind It has sowed, has grantedcertiorari and heard argument in acase from LOUISiana] that is closeenough to Fuentes to look sus­piCIOusly like a rehearing. The resultsfrom thiS second consideration shouldprove interesting.

Should the unusual occur. and theCourt retreat from Fuentes to such adegree that the former practice inArkansas is restored. re-enactment ofthe replevin statutes will not benecessary. Act 144 (SECTION 9) dis­claims any intention to repeal existinglaws. J-

The Arkansas Lawyer

Where the debtor avails himself ofhis right to Judicial hearing prior toIssuance of the writ. the degree ofproof supplied by the creditor is thatshOWing a prima facie right to Imme­diate possession. To support thiS. theInstrument creating the security In·terest should be exhibited and ade·quate eVidence offered to indicatethat the debt IS delinquent and ac·celeratlon has occurred. The Act doesnot contemplate a full-scale trial of allissues at the preliminary hearing. In or·der to achieve delivery of the collateral.the creditor stili must furnish bond asprovided In seclion 34-2105. and ade­quate recourse by the debtor exists Iffinal adjudication IS adverse to thecreditor's claim.

Experience to date has indicatedthat the alternative procedure servessatIsfactorily In most cases. A Sizeablemajority go by default. Where hear­ings are requested. most circuit jUdg·es. With a minority of notable excep­tions. readily accede to motions forearly setting. Cases where thecollateral is deliberately damaged dur·ing the period between service andhearing are not unknown. but thenumber has not been 01 critical pro·portions. However. the opportunity forloss to a creditor through this avenu€.remains and represents a serious.valid objection to the Fuentes ra­tionale.

Fuentes IS only one incursion onprejudgment remedies which haveexisted for more than a century. thedestruction of which has disruptedbusiness practices of long standing.Everyday tools of businessmen ex·tending credit have been practicallyeliminated. Some courts have gone farbeyond the language of Fuentes and

Act 144 sets up a procedure whereJUdges may order appearance of thedebtor in any county of the district forthe purpose of determining whether atangible defense against issuance ofthe Writ eXists. and It also offers analternative designed 10 afford hearingopportunity but places the onus ofexercIsing the right on the partyclaiming it - the debtor.

Section 5 of Act 144 permits serviceWith the summons of a notice which in­

forms the debtor of the nature of therelief sought and requires the filingand service of written objectionswithin five days (Sundays andholidays excluded) In default of whichthe clerk IS required to issue the writat the request of plaintiff's attorney.

To meet problems represented bythe extraordinary case where genuinereason eXists to anticipate removal ofthe collateral after service, the court isempowered to authorize immediateseizure of the property and hold itsubject to JudiCial disposition. beyondcontrol of either party. It is assumedthat if this aspect is utilized. the courtwill require. and the record shouldshow. that a real emergency actuallyexists. Attempts to utilize it as a mere­ly formal matter. and to disguise aconvenience as an emergency. willdoubtless encounter a high degree ofjudicial skepticism.

In recognition of the fact that emo­tions frequently run high whereproperty is sought by a creditor. andthat instances of resistance. includingdamage to persons. property andpsyche are by no means rare. the Actimposes on the debtor a command ofdocIlity. with appropriate penalties.both cIvil and Criminal, for destructivebehavior.

A Discussion of

Title VII of the Civil Rights Act of 1964by Virginia Tackett

Some Cases and Administrative DeciSions under the Sex Discrimination Clause.

The action In civil rights law todayis in the field of sex discrimination. Anattorney representing a covered em~

ployer can expect to be asked for an~

swers as to the employer's liabilitiesIn the area of sex discrimination Intime to avoid problems. More andmore individual attorneys and lawfirms are being approached byaggrieved working women who wantadvice and action. Litigation In thISfield In the past has been sparse. butIS now mushrooming.

Until Ihe passage March 24, 1972. ofPublic Law 92-261. the Equal Em­ployment Opportunity Commission,the administrative arm of Title VII ofthe CIvil Rights Act of 1964. had timlt­ed powers. However, since the 1972Equal Employment Act which amend­ed Title VII to expand EEOC's cover­age and sharpen its teeth. the picturehas changed. Instead of a conciliationconference being the ultimate con­frontation. an attorney representingthe employer may find herself or him~

self vis-a-vis EEOC before a UnitedStates District Court Judge.

Today. Title VII has been extendedto cover formerly exempt employerswho are governments. governmentalagencies and political subdivisions.The federal government is under anExecutive Order which is adminiS­tered by the United States Civil Ser­vice CommIssion. Already coveredwere businesses. labor unions, trusts.hiring organizations such as unionhiring halls and employment agen­cies. and almost any other employeryou could name who has fifteen em­ployees workIng In at least twentycalendar weeks of the year.

In 15 Am Jur 2d Supp. Civil Rights.Sec. 58.3 (new text) can be found theamended provisions affecting employ­ment practices which discriminateagainst any Individual with respect tohis compensation. terms. conditions,or privileges of employment becauseof such individual's race. color. re­ligion. sex. or national origin.

After a backlog of charges hadstacked up In the EEOC. and paymentof negotIated settlements and litigatedJUdgments crept along at a snail'space. and while public employees

April, 1974

were not covered by Title VII, somewomen whose expectations had beenaroused by pUblicity about equal jobopportunities sought a more directremedy_

At the time two pregnant schoolteachers, one in Ohio and one inVirginia, initiated litigation againsttheir employer school boards involv~

ing the constitutionality of mandatorymaternity leave rules, they did notcome under the protection of Title VII.They went into U.S. District Court andthe United States Supreme Court in a7-2 decision said the school boards'arbitrary rules violated the DueProcess clause of the 14th Amend­ment to the United States Constitu­tion. Cleveland Board of Education et01. v. La Fleur et al., No. 72-777, 465F2d 1184, aft'd: and Cohen v.Chesterfield County, Virginia SchoolBoard et aI., No. 72-1129.474 F2d 395.reversed and remanded. These de­cisions, although in cases not broughtunder Title VII, clearly uphold theprovisions of the EEOC's Guidelineson Discrimination Because of Sex. butwithout expressly validating them.

These guidelines. appearing asamended In 1972 in 37 FederalRegisler 6835, AprilS, 1972, provide inSection 1604.10 that employmentpoliCies or practices which excludeapplicants or employees from employ~

ment because of pregnancy are In

prima facie violation of Title VII: thatthe disabilities of pregnancy. mis­carriage. abortion. childbirth andrecovery therefrom are temporarydisabilities for purposes of health ortemporary disability insurance or Sickleave; that policies on commencementand duration of leave. extensions. ac­crual of seniority and other benefitsand priVileges. reinstatement. insur­ance payments. are applicable on thesame terms and condItions as forother temporary disabilIties; and thatwhen termination for disability whereInsufficient leave is available has adisparate impact on employees of onesex and isn't Justified by bUSinessnecesstly, It IS a Violation of the Act.

The Cleveland Board of Educationrule required a pregnant teacher to beplaced on unpaid maternity leave for

the five months before childbirth tolast until the next regular semester af­ter the child was three months old.

The Chesterfield County. Virginia,rule required six months notice of theanttcipated childbirth and that herwork stop four months before child­birth.

The Supreme Court said that the ar­bitrary cut-off dates had no valid rela­tionship to continuity of instruction ifsubstantial notice is required; that theteacher's ability to continue past afixed date is an individual matter andadministrative convenience alone isinsufficient for the rule. The Court'sopinion did not foreclose thepossibility of a valid cut-off date dur­ing the last few weeks of pregnancy- a four-week pre-birth cut-off datebeing suggested by Justice Powell.

Policies that have an adverse im­pact on women because of pregnancymust be Justified by businessnecessity and essential to safety andefficiency. EEOC Decision No. 71-413(1970) CCH Employment PracticesGuide. paragraph 6204. In Doe v.Osteopathic Hospital of Wichita, Inc.(DC Kan) 333 F Suppl 1357. the courtheld that discharge of an officeworker for unwed pregnancy was un­lawful sex discrimination.

Now. With Title VII revitalized by itsstronger provisions. the promise ofmore examiners and more funds. theagency is in litigation again with atleast 25 cases on discrimination filedin various District Courts.

Both EEOC. in Section 1604.2(a) ofits gUidelines and the courts. withcases annotated In 12 ALR Fed 15, 39Sec. 6 (b), agree that the bona fideoccupational qualification exceptionas to sex should be narrowly interpret­ed. Sex has been held not a bona fideoccupational qualification for thepositton of airline flight-cabin atten­dant In Diaz v. Pan American WorldAirways, Inc. (CA 5 Fla) 442 F2d, certden 404 U.S. 950. 30 L Ed2d 267. 92 S.Ct 275: for the pOSitIOn of stenog­rapher In EEOC Decision Case No.YNO 9-082 (1969) CCH Emp. Prac.Guide paragraph 6005: for the posi­tion of lifeguard in EEOC DecisionNo. 70-286 (1969) CCH Emp. Prac.

95

Guide paragraph 1166.20; for the posi­tion of bartender in McCrimmon v.Daley, (DC 111) 418 F2d 366; Sail'erInn, Inc. v. Kirby, 5 Cal. Rptr 329, 485P2d 529. 46 AlR2d 351; as casinocard dealer in EEOC Decision No. 71·77 (1970) CCH Emp. Prac. GUideparagraph 6161: as steamship purserin EEOC Decision No. YNY 9·047(1969) CCH Emp. Prac. Guideparagraph 6010; as railroad agent­telegrapher in Rosenfeld v. SouthernPacilic Co. (CA 9 Cal) 442 F2d 1219;as a racing car driver in EEOCDecision No. 71·2088 (1971) CCHEmp. Prac. Guide paragraph 6250; asa baseball umpire in New York StateDivision of Human Rights v. NewYork·Pennsylvania ProfessionalBaseball league, 36 App. Oiv. 364,320 NYS2d 788. alt'd 29 NY2d 921, 329NYS2d 99. 279 NE2d 856.

The guidelines provide that theassumption of a general characteristicof women, such as a higher turnoverrate than men, or a stereotypedcharacterization, i.e. that men haveless capacity for manual dexteritythan women. or that women have lesscapacity for aggressive salesmanship,are not BFOQs, nor is the preferenceof co-workers. But the need forauthenticity as in hiring an actor oractress is a BFOQ and an exception tothe prohibition against sex discrimina­tion in job practices. The test thecourt has approved is whether the em­ployer had a factual basis for believ­ing that all women would be unable toperform the job safely and efficiently.Weeks v. Southern Bell TelephoneCompany, (CA 5 Ga) 408 F2d 228. 12AlR Fed 1.

EEOC has ruled that state laws thatprohibit or limit employment of womenin certain jobs which involve lifting orcarrying weights, or working certainnight hours do not take into con­sideration the capacities and abilitiesof individual women and therefore dis­criminate on the basis of sex. They arenot considered by EEOC to be a de­fense to an otherwise unlawful em­ployment policy.

The fact that it will cost an employermore to comply with the law by payingminimum wages and premiums forovertime, furnishing separate restrooms and providing special rest andmeal facilities is not a businessnecessity which will excuse violationof the law.

Although state laws limitingwomen's hours of labor, frequent lift­ing of weights over 25 pounds and lift­ing weights more than 50 pounds, oremployment in certain jobs. such asbartending, are invalidated by TitleVII. certain other state laws have beenundisturbed. The 8th Circuit Court of

96

Virginia Tackett, Staff Attorney for theArkansas State Highway Commission,graduate of Arkansas Law School; licensedin 1965; member of Governor's Commissionon the Status of Women; member of theCriminal Code Revision Commission; mem­ber of the House of Delegates, ArkansasBar Association.

Appeals, in Potlatch Forest, Inc. v.Hayes, et al .. 318 F Supp 1368. aft'd.465 F2d 1081 (1972) held that Ark.Stats. 81-601 which provided thatwomen employees required to workmore than 8 hours per day must bepaid one and one-half overtime con­fers a benefit on women employeeswhich cou Id be extended to male em­ployees and the company could there­fore comply with both Title VII andSection 81-601. Likewise. in Ridingerv. General Motors Corp. (DC Ohio)325 F Supp 1089. the Court declinedto invalidate a statute requiring seats,lunchrooms and minimum lunch hoursfor women.

The maintenance of separate linesof progression or seniority lists basedon sex. if it would adversely affect anemployee, is an unlawful employmentpractice. EEOC Decision No. 71·1100(1970) CCH Emp. Prac. Guideparagraph 6197. EEOC Decision No.71-1062 (1970) CCH Emp. Prac. Guideparagraph 6196.

An employment policy restrictingemployment of married women but notmarried men is an unlawful employ­ment practice and can only bejustified in terms of the peculiar re­quirement of the particular job, andnot on the basis of a general principlesuch as spreading work around. SeeSprogis v. United Airlines, Inc. (CA 7111) 444 F2d 1194. cert den 404 U.S.991. 30 l. Ed2d 543.92 S. Ct 536; Nealv, American Airlines, Inc" eEOCDecision Case No. 6-65759 (1968)CCH Emp. Prac. Guide paragraph6002. and EEOC Decision No. 71-2048(1971) CCH Emp. Prac. Guideparagraph 6244 for cases dealing withthe requirement that airline stew­ardesses be single and women truckdrivers be married, an interesting con­trast of employment philosophy andpractice.

One of the earlier sex discriminationcases involved denial of a supervisoryjob to a woman with preschool agechildren where the same measure wasnot applicable to men with preschoolage children. The court in Phillips v,Martin-Mariella Corp., 400 U.S. 542.

27 l Ed2d 613. 91 S.C\. 496. said thatsuch a practice is valid only if con­flicting family obligations are demon­strably more relevant for a womanthan for a man.

A refusal to hire or a policy to ter­minate an employee whose spouse isalso employed by the employer is aquestionable practice since the factthat salaries paid women aregenerally lower than those paid men,and in such a situation more womenthan men would be affected, wouldcause a disparate impact on women, aprinciple in conflict with the law andregulations.

A disclaimer by a newspaper that itswant ad heading "Jobs - Female In­terest," "Jobs - Male Interest" and"Male - Female Help" was only for theconvenience of the readers was heldinvalid and the practice called an un­lawful aid to sex discrimination. Pitts­burgh Press Co. v. Pillsburgh Com­mission on Human Rights, 4 Pa Cm­with 488. 287 A2d 161.

In Frontiero v. Richardson, 41 l.W.4609 (No. 71-1694. 14 May 1973) theUnited States Supreme Court held atpage 4612 that" classificationsbased on sex. like classificationsbased on race, alienage or nationalorigin, are inherently suspect andmust therefore be subjected to strictjudicial scrutiny."

Section 706 (k) of Title VII providesthat the court in its discretion mayallow a reasonable attorney's fee tothe prevailing party along with costs.other than to EEOC or the UnitedStates attorneys.

Although some employees had notfiled charges of discriminatory em­ployment practices and had not re­ceived notice of right to sue. in a suc­cessful suit for injunction anddamages the court found the suit tobe a Class action and relief in the formof damages to be available to all whosuffered damages whether or not theyfile charges or joined in the suit.Bowe v. Colgate-Palmolive Co., (CA7Ind) 416 F2d 711.

Continued on page 99

The Arkansas lawyer

Judith Rogers of NLR was recentlyelected Board President of the StateACLU Chapter. Roy Edward Thomas ISthe new associate of Bennett and PurtleIn Batesville. Neva B. Talley-Morris'new book. "Family Law Practice andProcedure Handbook," has been pub­lished by Prentice-Hall, Inc. Eugene B.Hale, Jr. is now Assistant Vice-Presi-

Eugene B. Hale, Jr.

dent In the Union National Bank's Com­mercial Loan Division. L.D. Gibson hasopened his law office In Trumann.George E. Campbell of Little Rock re­ceived the Distinguished Citizen Awardfrom the National Municipal League.Ruth Brunson, Professor and Law li­brarian, Little Rock Division of the U of ASchool of Law, is the current Presidentof the SW Chapter of the AmericanAssociation of Law Libraries. BrooksHays was recently elected at Washing­ton as President of the Former Membersof Congress Club. Paul B. Young hasbeen elected to the Board of the NationalBank of Commerce in Pine Bluff. Presi­dent Hoyt Thomas of the CleburneCounty Bar Association has an­nou nced that there is a display for thepublic in the courthouse with brochuresabout the different aspects of the legalprofession. Mike Beebe of Searcy hasbeen apPointed by Governor Dale Bum­pers to ASU's Board of Trustees. Sid­ney H. McCollum is the new partner inthe Little. Lawrence and McCollum firmof Bentonville. Barber, McCaskill, Am­sler & Jones is the new name for theLittle Rock law firm. Sheridan has a new

April, 1974

partnership In John Cole and E. Dai!Stiles, Larry Patterson of Hope hasbeen appointed to the Arkansas JuvenileJustice Institute Code RevIsion Com­mittee. Helena has a new husband-wife

Brady and Betty Anderson

law firm with Joe Brady Anderson andBelly Wray Anderson. Michael E. Ir­win is now Deputy Prosecuting Attorneyfor Cleburne County. replacing Carl Mc·Spadden of Heber Springs. John M.Belew IS associated with the Harkey andWalmsley firm In Balesville. NLR has anew law firm - Wallace, Hilburn andWilson. David Clinger and HowardSlinkard of Rogers have opened parttime office at Pea Ridge - the town'sfirst law firm. Don Adams and ScottCovington are a new law firm inHarrison. Perry V. Whitmore IS a newpartner in DaVIS. Plegge. Lowe & Whit­more of Little Rock. Gerald W. Carlylehas announced the opening of hiS newlaw office In Newport. Thomas S. StoneIS now associated with Davidson. Plas­tlras & Horne. Ltd. In Little Rock.Osceola has welcomed David Stubbs

David Stubbs

as the new associate of the Moore andCleveland law firm. The WashingtonCounty Bar Association donated $300to the local Juvenile Court to buy 'giltsfor deprived and low Income children ­V.P. Walter Niblock was one of the giftwrappers. Neva B. Talley-Morris is acandidate for one of the five AssemblyDelegales to the ABA House of Dele­gates to be elected al Ihe 1974 ABAMeetmg In Honolulu. George D. Ellis ofLittle Rock has been named to the Boardof Directors of AcademiC Press DenverThornton of EI Dorado has been ap­pOinted to Arkansas' Labor Commission.The Faulkner County Bar Associationsponsored a questlon-and-answer pro­gram on the Homestead Tax Relief Actof 1973 with Guy Jones, Jr., Francis T.Donovan and Jim Watson as the Com­mittee. Terry Kirkpatrick of Fayettevillehas Joined the slaff of John Doar.Majority Counsel for the House JudiCiaryCommittee. as a research assistant forthe Committee's investigation of im·peachment proceedings against thePresident. Past President Henry Woodsspoke in Memphis at the Trial advocacyseminar. sponsored by the TennesseeTLA and U of Tennessee at Nashville.Allen W. Bird II IS now associated WithMax C. Mehlburger for the pracllce oflaw in Little Rock. L. Philip McClendonhas joined the Legal Department ofGeorgla-Paclfic's Crossett DiVISion.Paul W. Hoover and John H. Jacobsare a new law partnership in Little Rock.It is now the Cathey, Brown, Goodwin& Hamilton law firm in Paragould. NewAssociation Officers - ArkansasAssoclatton of Criminal Defense At·torneys: PreSIdent Omar G. Greene;Robert L, Pierce, VP: Lloyd Haynes,Secretary: and Henry Osterloh, Trea·surer. Independence County Bar Asso­ciation: President C.T. Bennet i VPDavid Blair; Secretary Bernice Mc·Spadden; Law Day Chairman JohnBelew. Union County Bar Association:President Wallace M. Moody; VP Al­bert R. Hanna; Secretary-TreasurerMichael R. Landers; and Law DayChairman Ronald L. Griggs. ArkansasCity Attorneys' ASSOCiation: PresidentBill Ross; 1st VP Clifton Hoofman; 2ndVP Robert Tolson, Jr.; and Secretary­Treasurer Ike Allen Laws. Jr. ..I.

NO iALl:1I TAll OUTSIOI: ALAe .. ","

97

EXECUTIVE COUNCILNOTESBy James M. MoodySecretary-Treasurer

On November 30. 1973 the ASSOCiationmoved Its offices to the new Bar Centerand the Executive Council held Its firstregular meetmg In the new facility onMarch 9.

HIgh on the prlonty of bUSiness dis­cussed at the meeting was considera­tion of a new budget for the Associationand a proposed restructullng of thedues With mflatlon affecting every or~

ganlzatlon 5 operating expenses and themaintenance of the new Bar Center. anIncrease In Bar dues IS Inevitable and aproposal will be submitted to the Houseof Delegates to put Arkansas in line withher neighboring states.

Phil Anderson reported 10 the CounCilthat the Bar Foundation was In good fi­nanCial condition and able to meet allcurrent obligations concernmg the com­pletion of the Bar Center as well as carryout Its pnmary purpose of making fundsavailable for scholarships and researchprojects

Plans are almost complele for the FallLegal Institute which will move back toFayelteville on the weekend of the Tulsa­Arkansas game James Sharp hasarranged lor ample room at the Moun·tain Inn Downtowner which has recentlybeen remodeled and an outstanding pro­gram has been prepared utilizing mem-

bers of the facully of the University ofArkansas Law School

The secretary-treasurer IS happy 10 re­port that the Assoclatlon's finances areIn good shape even after extraordinaryexpenses were Incurred In the past yearIn connection with the annual meetingand the legislative program. Thebalance sheet prepared by the audllorshowed lotal current assets of 558.739.20and total fixed assets of 53,517.47 or totalassets of $62.256.67 Total current Ila·billtles were listed as $252.66 and memobers equity as 562.256.67. an Increase of

Continued on page 99

98

uperiorFederal Savings and

Loan AssociationFORT SMITH

MAIN OFFICE-Rogers Avenue at 16th Street

EASTSIDE OFFICE-Rogers Avenue at 571h Street

VAN BUREN OFFICE­11()4 Broadway

MENA OFFICE-MaIn at HIckory Street

MOBILE OFFICE-Ozark. BooneVIlle. Waldron, Paris

The Arkansas Lawyer

v',\.

Mysticism,Continued from page 72costs 5192 to produce the tag. so webought four tapes and are routingthem around the state like a bunch ofcountry merchants. There are ten tele­vision stations in Arkansas, but welawyers can't shake loose enoughmoney to buy over fou r tapes. It isvery depressing to see this happenwhen the power of television and thepower of the written word can be com­bined to provide effective support forlaw and for the legal profession.

Today this proud profession. whichhas dedicated itself to the service ofothers. is being attacked by those whosay that lawyers are selfish, that thereis a self-interest among us whichwou ld override a ded ication to thepublic and a dedication to others. I re­mind you that you and I have a licenseto practice law. I think the public at­titude governs the extent to which wewill be permitted to exercise thatlicense. Arkansas lawyers must insurethat the public attitude is one of con­fidence, confidence in us. And I thinkthis can be changed in two ways.First, by an emphasis on our daily per­sonal relations as lawyers. If we mustcriticize Maranda. Escubedo or Jack­son Y. Denno, then let's do it in anattitude of a legal discussion. Let's doit in our professional manner and notby slander of the justices. Secondly,by support of an aggressive public in­formation program of the organizedBar. I would really like to see us dowhat the lawyers in Kansas did. They

voluntarily increased their dues $25per lawyer to insure that they cou Id ef­fectively inform the public about theirprofession. If you agree with me onthat. then ask your representative inthe House of Delegates of the Arkan­sas Bar to consider increasing thedues so that we can have effectivepublic information programs for thelawyers of Arkansas.

A noted short story writer was in­carcerated in a state penitentiary.While the prisoner was there. he de­cided that when he was released hewanted to write. but that he had to getanother name because his name wasmarked. With the guard's permission,the prisoner assumed the guard'sname and, as he left the prison. theold guard waved and said, "Takegood care of our name." Like thatwriter, we need to take good care ofour name - lawyers. J ...

"-Notes,Continued from page 98

$5,915.92 over members equity as ofJune 30, 1972.

At the last meeting of the House ofDelegates, a committee was appointedto organize a tennis league which willhold round robin tournaments aroundthe state CUlminating in a final tourna­ment to be held at the annual meetingwith prizes for the winners. Jack Younghas been appointed chairman of thecommittee.

The House adopted a resolution pro­posed by Robert Hays Williams that the

Association appoint a committee com­prised of members of the House of Dele­gates, members of the Judicial Counciland faculty from the Law School to makespecific recommendations for con­sideration by the House of Delegates inan effort to restructure eXisting judiCialdistricts to equalize the work load.

The House also adopted a resolutionapproving the action of the Senate Ju­diCIary CommIttee which had recom­mended that Arkansas remain in theEighth CirCUit Court of Appeals ratherthan being moved to the Fifth CirCUIt.

Membership is still at a record highwith 1.843 members compared to 1.709in March 1973. ./,

Civil Righls,Continued from page 96

While EEOC is the administrativearm of Title VII, the U.S. Civil ServiceCommission administers ExecutiveOrder 11478 which prohibits dis­crimination because of race. color.religion. sex or national origin forfederal employees, and the Office ofFederal Contract Compliance ad­ministers Executive Order 11375governing federal contractors andsubcontractors. The Wage and HourDivision of the Department of Laboradministers the Equal Pay Act, anamendment to the Fair Labor Stan­dards Act, which prohibits wage dif­ferentials based on sex.

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THE LAWYER-TO-LAWYERCONSULTATION PANEL

A national panel of lawyers. listed by fields of law.who agree to advise fellow lawyers by phone (alsoavailable for association and referrals). The 1973and 1974 directories hold a Certificate of Compli­ance trom the American Bar Association. Thedirectories are $10.00 each. For information on thedirectory or membership on the panel, write or callcollect THE LAWYER·TO·LAWYER CON·SULTATION PANEL, 800 CAXTON BUILDING,CLEVELAND, OHIO 44115, (216) 861-8363.

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To help you establish the essential char­acteristics which any reliable system musthave, the American Bar Association hasprepared a special Docket Control Kit Irsa suggested approach for you to considerfor the development of your own systemThe Kit contains a cassette tape and book­let that spell out in detail what to do andhow to do It

Normally, the Kit costs S750 and irs worthevery penny. But if you're insured under theCNA Bar-Sponsored Professional LiabilityProgram, we'll send it to you for only S6.00(Our special offer expires 12 31 73.)

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Amoving experience.

1974 Datsun 260-Z

When you pour the coal to your '74 Z-Car, one thing is forcefully apparent: a bigger 2.6 liter engine.That's up some 200cc from last year and there's morc take-off torque; more fresh, responsive horsesall through the power curve. An electronic fuel pump force-feeds twin carbs. The ignition is tran­sistorized for a fatter spark and longer spark plug life.

A four-speed stick or optional three-speed automatic transmission transmits the power. A fully in­dependent suspension and standard radial tires pul it on the road.

Rack and pinion steering reacts instantly and precisely to proper pointing. Racebred strut-type un­derpinnings supply the kind of handling that helped the Z-Car win three national SCCA champion­ships and a couple of East African Safaris. The suspension is so smooth riding it even soaks up thebumps on railroad crossings.

The 260-Z is made to drive purposefully. Aerodynamics and efficient propulsion accomplish speedypoint-la-point passage with mini-sedan economy. People you pass will note one more handsomemodification: a new rear panel that sets it apart from any other carl or even any earlier Z-Car.

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The Arkansas Lawyer

April, 1974

Aide-de-courl.Jim Kennedy connects the workings of the barwith banking. As an investment managementcounselor at Commercial National Bank, Jim canhel p you with the money management of trustsand estates, pension and profit sharing, invest­ment counseling and other trust matters thatmatter. Call Jim for a briefing. 378-3342 .

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107

BIPOITby James E. West

HIGHLIGHTSCommittees are the lifeblood of the Arkansas Bar Associa­

tion. All of us can take great pride in the work of our com­mittees this year, and this issue of the Arkansas Lawyerserves as one example of the work of a single committee. Thisissue was conceived and edited by members of the Public In­formation Committee. and it contains matters of practical andvital Interest to every Arkansas lawyer.

Highlights of this Bar year have included eight Regional In­stitutes on Trial Practice: Fall Legal Institute covering portionsof Workmen's Compensation Law. Maritime Law. newlegislation, and trial practice: Long Range Planning Con­ference: dedication of the new Arkansas Bar Center: obtainingmany thousands of dollars for the Arkansas Bar Foundation:moving into the new Bar Center: completion of volunteer legalassistance to tornado disaster victims: special programs lorlaw students on legal economics and trial practice: publication(in larger type) of new directory 01 members: increase of mem­bership from 1709 in March. 1973 to 1843 in March. 1974: Oiland Gas Institute: preparations for unique annual meeting; anda tremendous amount of work and accomplishment by themany committees of the Association.

THE GOOD OLD DAYSWe are rapidly approaching the climax of this Bar year. Our

annual meeting in Hot Springs on June 5-7 will have as itstheme "The Good Old Days." and the program will includelegal economics help for all solo practitioners and members ofsmall law firms; a discussion of the new model jury in­structions: and a tremendous variety of entertainment. includ·ing Gridiron Show. amateur lawyer talent. arts and craftsdisplay by lawyers and family members. tennis. golf. pingpong. bridge. bingo. barbecue. horseshoe pitching,moustache contest. old costume contest. receptions.humorous luncheon speakers. banquet. square dancing.modern dancing. and general fellowship with our lawyerfriends from all parts of the slate.

I would like to repeat something I said prior to our mid-yearmeeting. One of the reasons we work so hard as lawyers is tobe able to enjoy a few of the finer things of life. The 1974 an­nual meeting of the Arkansas Bar Association will be one ofthose finer things. Doris and I look forward to being with you inHot Springs as we all relive the good old days.

The world will never be the sameOur lives have changed in many waysFor just a while let us ree/aimThe spirit 01 Ihe good old days

lOB

James E. West

The Arkansas Lawyer

ARKANSAS BAR ASSOCIATION76TH ANNUAL MEETING

JUNE 5-7, 1974

ARLINGTON HOTEL HOT SPRINGS, ARKANSAS

"What's Ahead for the Sole Practitionerand the Small Law Firm"

Dean Robert A. Lellar"The Dean" Reminisces

Bernard SterninAuthor-Gonsu Itant-Lawyer

April, 1974

Robert P. BigelowLeading Editor-Lawyer

G B. Nance, Jr.Pioneer In Video Usage

J. Hams MorganNoted Lecturer-Lawyer

J L "Bex" Shaver"The Gommon Man' Looks Back

109

In memoriamIn memory of our departed colleagues, and in honor of the families and

friends they have left behind, the following words of recognition and memoryare hereby shared with the members of the Arkansas Bar Associationthrough its Memorials Committee.

FRANK G. BRIDGES, a senior mem­ber of the Pine Bluft. Arkansas law firmof Bridges. Young. Matthews and Davis.died November 7, 1973. at the age of 67.A 1929 graduate of Vanderbilt UniversityLaw School. Nashville. Tennessee. Mr.Bridges was admitted to the ArkansasBar in 1930. He was an active prac­titioner and a member of the JeffersonCounty, Arkansas and American BarAssociatIons.

Mr. Bridges was born in Pine Bluff, theson of the late Frank G. and Vive WalkerBridges. He was educated in the PineBluft public schools and did under­graduate work at Vanderbilt where hewas president of the student body.

Mr. Bridges was Interested in and ac­tive In Pine Bluff Civic and community af­fairs, serving on the Pine Bluff schoolboard. being a director of the NationalBank of Commerce. a member ofQuapaw MaSOniC Lodge No. 730. amember of Pine Bluft Rotary Club. amember and several times director ofthe Pine Bluft Chamber of Commerce. aformer director of Arkansas Oak Floor­Ing Company. a member of "Fitly for theFuture. and a member and deacon ofthe First Presbyterian Church In PineBluff In addition to these actiVities. MrBridges served from 1943 to 1945 In theUnited States Navy In World War II beingdischarged with the rank of lieutenantcommander.

Survivors Include hiS Wife, Anna LouYoung Bridges. two sons. F. GordonBridges. III. and Lundsford W. Bridges.and a daughter. Mrs J. William Sanders.all of Pine Bluft. Also. a brolher. J. Walk­er Bridges. of Wright. and 11 grand­children.

DR. LERA R. KELLY, age 44. an at­torney. and chairman of the Division ofBusiness and Economics at Ouachita

110

Baptist University. died an Wednesday.November 28. 1973. "This IS a great per­sonal and institutional loss, ' stated Or.Daniel R. Grant. president of OuachitaBaptist University

Dr Kelly was a member of the Oua­chita faculty since 1965. and was presi­dent of the Arkansas College Teachersof Economics and Business Association.She was also a member of the ClarkCounty and Arkansas Bar Associations,the Arkansas and National Associationsof Women Lawyers, a member of theDaughters of the American Revolution,member of the First Baptist Church ofArkadelphia. where she taught Sundayschool class. a member of Della CappaGamma. and an active participant In

college and community affairs Dr.Kelly"s courses on Business Law andPersonal Finance were always favontesof the Ouachita student body. Dr. Kellywas actIve In the planning and construc­tion of Ule Hall. which houses theDIVision of BUSiness and EconomIcs andOuachita

Dr Kelly was born In Soper. Okla­homa. attended Texarkana. ArkansasHigh School. Texarkana College and theUniversIty of Arkansas. majOring In pre­law and drama. She received her law de­gree from the University of Arkansas In

1951. and her Masters of Educalion de­gree In 1957 from East Texas State Uni­versity. and had done work on a Doctorof Philosophy degree at LOUISiana StateUniversity Or Kelly's abilities and ener­gies found her time to enter and work inthe private practice of law since 1951. tobe a member of the Arkansas Legisla­ture as Representallve from MillerCounty. Arkansas. tram 1952 to 1954.serve as a graduate assistant at EastTexas State UniVersity, chairman of theSpeech Department at Nichols StateCollege, Thibodeaux, LouiSiana, from1957 to 1963. and In 1965 take up herspecial duties as Ouachita Baptlst Uni­versity faCUlty member. She was an ac­tive lady lawyer and educator who willbe greatly missed.

WILLIAM DULIN ROTHWELL, a well­known attorney and civic leader ofCrossett. Arkansas. departed this life onDecember 29. 1973 at the age of 39years

Mr. Rothwell was survived by hIS Wife,Mrs. Mona Lou Rogers Rothwell. twosons. DaVid and John Rothwell. all of thehome, and hiS parents, Mr. and Mrs.John C. Rothwell. and his paternalgrandmother. Mrs Dan Rothwell. all ofHope, Arkansas.

At the time of his death. Mr. Rothwellwas an attorney for Georgia Pacific Cor­poration in Crossett, Arkansas. He was agraduate of the University of ArkansasLaw School. a former deputy prosecut­Ing attorney for Bradley County. Arkan­sas. chairman of the Crossett AirportCommission, former pr~Sldent of theCrossett Area United Fund. a member ofthe Crossett Rotary Club. and an aclivemember of the First Baptist Church ofCrossett. Arkansas.

JUDGE EDWARD LYNN WEST·BROOKE, a distingUished Jonesborolawyer and former Chancery Judge. diedIn Jonesboro. Arkansas on February 111974 at age 73

A native of Jonesboro. JUdge West­brooke attended Washington and LeeUniversity. and Harvard University Hereceived hiS law degree from North­western University at ChIcago. He there­after entered law practice at JonesboroWith hiS father. the late E.L. Westbrooke.Sr. DUring hiS legal career. Judge West­brooke was attorney for the NortheastArkansas District of the Frisco Railroad.a fellow of the Nalianal College of TrialLawyers, a member of the American BarASSOCiation. and a member and Execu­tive Committee Chairman of the Arkan­sas Bar ASSOCiation. He also served asChancery Judge ,n hiS district from 1944to 1945

The Arkansas Lawyer

IN MEMORIAM

DATED: January 30. 1974.

Michael E. KellyLeo J. CarneyFrank J HuckabaDaVid L. OsmonTed H. SandersNell Power WrightRoy E. DanuserEdward J. Cunningham

111

member of the Amencan and ArkansasBar Associations. and served as chair­man of the First Special Section ofSavings and Loan Attorneys for the Ar­kansas Bar Association. He was li­censed in and practiced before all stateand federal courts, including the U.S.Supreme Court. the U.S. Court of Ap­peals, the U.S. District Courts. theArkansas Supreme Court, and variousadministrative agencies. such as theTreasury Department, and the InterstateCommerce Commission.

Mr. Tinnon's energies and capacitiesfound him time to participate as a mem­ber of the Baptist Church. the MasonicLodge. the American Leg ion. and theDisabled American Veterans. He was aveteran of World War II.

Survivors include his wife, Mrs. AdeleKing Tinnon; a daughter. Mrs. Ed Cun­ningham 01 Fayetteville; a sister. Mrs.A.N. Derouin of North Carolina. and hiSlather and stepmother. Mr. and MrsHugh Tinnon of Cotter. Arkansas

Thomas B. Tinnon will long be re­membered. and his passing is a notice­able loss to his colleagues. friends. andneighbors of his community, area. andstate.

whO expired In January. 1974. at the ageof 58, while on a triP to Washington.

The following Memorial of the Baxter­Marion County Bar Association was readin Open Court by the Honorable GordonF. Engeler, Jr.. President, and orderedspread of record by the Honorable ErnieWright. Chancellor of the District:

ATTEST: Drew Luttrell. Secretary

ThIS expression by his colleagues ofBench and Bar demonstrate the esteemand respect for Mr. Thomas B. Tinnon bythose who knew him best.

Mr. Tinnon distinguished himself in allthat he undertook. He was a senior part­ner of Thomas B. Tinnon ProfessionalAssociation; he actively practiced law inBaxter County for 24 years; he organizedBaxter County's First MuniCipal Courtand served as its judge: he also servedas City Attorney, was past president ofthe Chamber of Commerce. helpedorganize the First State Building andLoan Association and the First NationalBank and Trust Company. all of Moun­tain Home. Arkansas. He set up BaxterCounty's Planning Commission, andparticipated in many county road im­provement projects. He was attorney forthe North Arkansas Electric Cooperativefrom 1952 to 1966. He was past presidentof the Arkansas Wildlife Federation. andassisted in presenting the state's firstwater conservation laws. He offered him­self as a candidate for several importantstate and district offices, and maintainedan active interest in political affairs.

A 1949 graduate of the University ofArkansas Law School. Mr. Tinnon was a

0.0. PendergrassJames C. JohnsonJohn A. CrainJennie F. PondAlbert L. CoxTerry M. PoynterKenneth R. Smith

The Baxter·Marion County Bar Association and the individual attorneys comprisingsaid associatIon hereby pay tribute to our late member and fellow confrere, THOMASB. TINNON. As a person and as an attorney, his unfailing efforts on behalf of this asso­ciation. his constant and devoted efforts in civic affairs toward the betterments of Bax­ter County and the State of Arkansas. his gracious assistance to attorneys individuallyand in guiding and aiding young persons toward worthwhile vocations in life. will longbe remembered and constitute and will continue to constitute a loss which we and thecommunity can ill-afford to lose.

THE BAXTER-MARION BAR ASSOCIATIONBY: Gordon F. Engeler. Jr., President

THOMAS B. TINNON - It was onFebruary 6. 1974. In Assembly before theChancery Court of Baxter County,Arkansas. that Bench and Bar paidsolemn respects to a deceased activecolleague. a practicing lawyer. a CIvicleader, and noted Arkansan, Thomas B.Tinnon of Mountain Home. Arkansas,

April, 1974

Judge Westbrooke was Interested In

and served as Vice-PresIdent General ofthe National Sociely of Sons of theAmerican Revolution. and currently wasHlstonan General of the ASSOCIatIon Healso was a member and past president ofthe Arkansas Sons of the AmericanRevolutIon. and was a member of theFirst Presbyterian Church of Jonesboro.

Judge Westbrooke was survived byhIs wIfe: a brother. Henry W Westbrooke01 MIssouri. and three sisters. Mrs E.J.Braman and Dr Olive W QUinn. both ofMaryland. and Mrs George OgdonHallan. of illinOIS.

JUDGE CHARLES C. WINE, a notedArkansas attorney. former ArkansasPublic Service Commission chairman.and a former Associate Justice of the Ar­kansas Supreme Court. died in Benton­ville. Arkansas on February 9, 1974. atage 72. Judge Wine was semi-retiredand lived in Bentonville. but also main­tained a home in Texarkana. where hestill maintained a law office.

Born May 17. 1901. In Carthage.MIssouri. he later moved to Arkansas.where he was reared and subsequentlyattended the University of Arkansas atFayetteville. He was a graduate of Cum­berland University Law School. Leb­anon. Tennessee. and began the prac­tice of law at Texarkana In 1935.

During his long and notable legalcareer. Judge Wine was appointedchairman of the Arkansas Public ServiceCommisSion by former governor BenLaney. and later served out an unexpiredterm as Associate Justice of the Arkan­sas Supreme Court.

Judge Wine was a member of the FirstMethodist Church of Bentonville. aveteran of World War L and a member ofthe American Legion.

He is survived by his wife. Mrs. AnnaGrace Phillips Wine of the home. andtwo sisters. Mrs. Helen Clouser. of Ben­tonville. and Mrs. Gwendolyn Rogers, ofFort Worth, Texas.

by Director J. Steven Clark

Lawyers' MartHELP WANTED FOR SALE:

Openings for two law gradu-Arkansas 1-46; ALR 1,2,3; South-ates on editorial staff of na-

tion's leading publisher of city western 151. Labor Cases. Box

and county codes. Some edi- 1624, Wilmington. Del. 19899.

torial experience preferred, but ....not required. Prior practice or Conference Room Furnituremembership in State Bar notrequired. Please send resume ARKANSAS BAR ASSOCIATIONand salary requirements to 400 West Markham,Municipal Code Corporation, lillie Rock, ArkansasP.O. Box 2235, Tallahassee, Phone: 375-4605Florida, 32304.

The Arkansas Lawyer

staff members of the Arkansas Law Re­view. published by the University of Ar­kansas School of Law. according toRichard John Morrisey. III of Russellville.editor.

Named to the staff were Larry E. Craneof Fayelteville. Wayne B. Ball of LittleRock. Boyd Cox of Fayelteville. EdwardCochran of Bradley. John R. Cullen ofFayetteville. Mark W. Grobmeyer of LittleRock. Fred J. Hart of Little Rock. DonaldH. Henry of Springdale. Phyllis H. John­son of Fayelteville. Rodney D. McDanielof Texarkana. John David Myers of UttleRock. Walter H. Pupko of Douglaston.N.Y.. David E. Smith of Hot Springs. Oc­tavia Vashti Varnado of Pine Bluff.Steven E. Vowell of Green Forest. BufordB. Wiley of Fayetteville. Ronald A.Williams of Little Rock. and James R.Williamson of North Little Rock.

Membership on the staff of the LawReview is limited to the top 10 per cent ofstudents in the School who have takenat least 26 semester hours of study tolaw. Participation involves substantiallegal research and legal writing.

The Chapter of Phi Alpha Delta. thenational honorary law fraternity. at theLittle Rock Division of the Law Schoolelected Phillip Farris. Justice; JerryGlover. Clerk; and Mike Beardon. Trea­surer. J-

cently elected Chairman of the Fayette­ville Planning Commission. ProfessorDavid Newbern has recently been ap­pointed to the Board of Adjustment ofthe City of Fayelteville.

Margie Chapman. Fayetteville divisionlaw student and 1972-73 national presi­dent of the Intercollegiate Association ofWomen Students was one of a panel of16 women from across the country whomet recently in New York to determinethe winners of the second annual LadiesHome Journal's "Women of the Year,1974."

Law Day at the Fayetteville divisionwill be celebrated April 12 and 13 with apicnic. banquet. dance. and traditional"Law Day Skit."

February 22nd bar examiners BillPenix. Jonesboro; Joe Woodward.Magnolia; and Robert Henry. Conway.participated in an SBA-sponsored paneldiscussion on the bar exam.

Professor Fred Spies attended the an­nual meeting of the American Academyof Forensic Sciences in Dallas duringthe week of February 11. and moderateda panel on ABA Standards for CriminalJustice. At the Dallas meeting ProfessorSpies was elected a Fellow of theAcademy. the first attorney in the staleso elected.

Eighteen students have been named

Director Clark

Dean Wylie Davis attended a Dean'sWorkshop at the Midwinter meeting ofthe American Bar Association in Hous­ton. January 31 - February 2.

Newly elected officers of the StudentBar Association at the Fayettevilledivision are Ron Williams of Little Rock.President; Larry Crane of Hot Springs,Vice-President; Steve Vowel of GreenForest. Secretary; Susan Webber ofTexarkana, Treasurer; and BusterGuthrie. Faculty Representative.

Joseph H. Purvis is the new presidentof the Student Bar Association of the Ut­tie Rock Division of the University of Ar­kansas Law School. The other officersare Lonie McAllister. Vice-President;Sandra Harper. Secretary; and DougMays. Treasurer.

The SBA at the Fayetteville Division isproviding the funding for a law schoolnewspaper titled "Imprimatur" edited byMark Stodola.

The Arkansas Bar Association recent­ly purchased and delivered for use to theFayetteville division and Central andWest Arkansas. Sony video-tape equip­ment. This equipment will allow theschool 10 use the Bar's library of videotapes to present instructional materials.

Professor Morton Gitelman was re-

112

A high standardof professionalism

is just as important to usas it is to you .

.IIF John/on,moo,mana. Pc"a,iIn/ulancc 8 Bonding

104 North 16th Fort Smith. Arkansas Phone 501 785-2338

ARI(ANSAS BAR ASSOCIATIONINVITES YOU ON A FlIN·FILLED SCA:'-.:DJ:\A\'IA:'-.: ADVENTURE.TWO WEEKS IN STOCKIIOLl\1. llELSINKI A:'-.:D COPENIIAGEN.Everyone should have at least one adventure a year, and this could be yours. Join us for arelaxing. c1o-as-you-pleusc hollduy in the Land of the Vilctngs ... glistening blue harbors,tile ~lidJljght StUl, festive Tivoli Gardens. llL'\'luiOliS salinas, tile medieval splendor ofHamlet's Kronborg Castle, sumptuous smorgasbords, and tempting buys in !)C\\ter, Orreforscryswl. hand-blocked Iincns, Georg Jensen silver, porcelain and superb antiques.It all awaits you.

A GREAT TRIP A GREAT VALUE.ci898 plus 840P tax and service

lncluding: DircctC hart.ercd. Jet fiiglHs, dclmle hotels, AJllclican brcakfasL<;, gou011Cl mealsat a selection of tllC fulCSl rcsta llronts, transfers and a generous 70 lb. luggage alluwance.

DEPARTING LITTLE ROCK - JULY 30, 1974

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