january 1988
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GET YOU R S ELF REG 1ST ERE D... January 1988 ,TRANSCRIPT
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THE ARKANSAS
January 1988
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REGULAR FEATURES2 The President's Report
5 Point of ViewlLetters
SPECIAL FEATURES
LaARKANSAS
John F. Stroud. Jf.. PresidentPhilip E. Dixon. President-ElectSandra Wilson Cherry. Sec.-TreasurerVincent W. Foster. Jr.. Council Chair
Wm. A. Martin, Executive DirectorJudith Gray. Assistant Executive
Director
OFFICERS
January 1988Vol. 22, No. 1
EXECUTIVE COUNCIL 8 Law. Literature & Laughter
26
Has the Color BarrierFallen.? by Phyllis 11
Harden Carter
Phase I: Automatingthe Law Office. by 15
Charles A. Morgan
Madison P. Aydelott. 1IIH. Murray ClaycombJohn D. Eldridge. 1IIDonald K. HarpRonald D. HarrisonRobert L. Jones. 1IIR. Gary NutterRobert G. SerioBobby E. ShepherdJames M. Simpson. Jf.Carolyn B. WitherspoonRobert R. Wright. 1II
EX-OFFICIO
John F. Stroud. Jf.Philip E. DixonRichard F. HatfieldSandra Wilson CherryVincent W. Foster. Jr.Michael H. Crawford
Up Against the WaIL 23by Chris Barrier
3032
The Developing Law:Sales of a RemainderInterest. by George N.Plastiras and Philip Miron
Disciplinary Actions
In MemoriamEDITOR
Ruth M. Williams, Director ofCommunications
The Arkansas Lawyer (USPS 546-040) ispublished quarterly by the ArkansasBar Association, 400 West Markham,Little Rock. Arkansas 72201. Secondclass postage paid at Little Rock. Arkansas. In all counts. POSTMASTER:send address changes to Arkansas BarAssociation. 400 West Markham. LittleRock. Arkansas 72201. Subscriptionprice to non-members of the ArkansasBar Association $15.00 per year and tomembers $10.00 per year included inannual dues. Any opinion expressedherein is that of the author, and notnecessarily that of the Arkansas BarAssociation or The Arkansas Lawyer.Contributions to The Arkansas Lawyerare welcome and should be sent in twocopies to the Arkansas Bar Center. 400West Markham, Little Rock, Arkansas72201.
All inqUiries regarding advertisingshould be sent to The Arkansas Lawyerat the above address.
3436383941
Arkansas IOLTA Program
Judicial Department Report
Executive Director's Page
Young Lawyers' Update
In-House News
ON THE COVER:Okay, close your eyes. Now, tell us what
you've got on the walls in your law office.If you're lucky, maybe a couple of theprints that go with the duck stamps, andsome drawings by your kids. In "UpAgainst the Wall," Chris Barrier. of LittleRock. a member of the Mitchell, Williams,Selig and Tucker law firm, explains thaI itdoesn't have to be that way. There is a wayfor you to see what is available from morethan 300 artists living and working here inArkansas. You can get some advicethrown in for the price of the art and alsofind out something about the artist simplyby registering with the Arkansas ArtistsRegistry.
January 19S5/Arkansas Lawyerll
THE PRESIDENT'S REPORT
Mandatory CLEAReality
Contract LegalServices
Brief WritingLegal Research
1700 First Commercial BUildingLittle Rock, AR (SOl) 372-0884
WILLIAM ADOLPH OWINGS
Attorney at Law
LONG-RANGE PLANNINGAlthough we had a planning
retreat in the spring of 1987 to discuss professionalism in Arkansas,the Association has not had a generaL long-range planning retreat innearly four years. These retreatshad been held annually at the RedApple Inn. Retreats every year areprobably too frequent. but certainlyafter four years we are due to pursue long-range planning with fullvigor. Robert L. Jones, III, is thechair of an excellent committee thathas planned a retreat at DeGrayLodge on April 22, 1988, where wecan develop a five-year plan for theArkansas Bar Association. Most ofthe major programs undertaken bythe Association in recent years.such as mandatory CLE, IOLTA. theClient Security fund and legalspecialization, have gained fruitionat similar retreats. I am confidentthat new, meaningful objectiveswill emerge from this meeting. Iurge you to attend if you are one ofthe persons invited to participate inthe retreat. 0
cessful. it will be continued everyyear and expanded to include a similar consortium on the fayettevillecampus.
ships, legal services for the indigentor other worthy objectives to be determined by the Arkansas IOLTAfoundation's Board of Directors. Iurge any of you who have not signedup to come aboard SO that interestfrom your trust accowIt can be usedfor law-related public efforts in Arkansas which improve our legalsystem.
INTERVIEWING CONSORTIUMThe Law School Liaison Commit
tee, co-chaired by Joe B. Reed and J.Bruce Cross, has planned an Interviewing Consortium to bring lawstudents and attorneys together inLittle Rock during the Mid-YearMeeting of AICLE and the Association on Thursday, January 21. at theExcelsior Hotel. Twenty-one lawfirms have expressed an interest ininterviewing on that date forsummer law clerks. Hopefully therewill be strong participation fromlaw students at both the Little Rockand fayetteville campuses. Thiswill be a wonderful opportunity forboth students and attorneys to consolidate their interviews to a singleday and save time and travel for allconcerned. If the program is suc-
By John f. Stroud, Jr.
Thanks to the Arkansas SupremeCourt, mandatory continuing legaleducation has finally become a reality in Arkansas. We join 28 otherstates, including all the states contiguous to Arkansas, that have todate adopted similar programs. TheArkansas Bar Association first initiated a study of the subject in May1983. This study culminated in approval by the Executive Council onApril 27, 1985, of a petition to theSupreme Court for adoption ofproposed "Rules for MandatoryContinuing Legal Education:' Myspecial thanks to W. Russell Meeks,ill, who, as chair of the special Mandatory Continuing Legal EducationCommittee, dralted the original petition in 1986 and our supplementalpetition in 1987. The Per Curiam order of the Arkansas Supreme Courtdated November 23, 1987, approvedmandatory CLE without elaborationbut as soon as the court administrator has been employed, we shouldsee a supplemental order with morespecifics. With the advent of mandatory CLE, you will soon see moreprograms covering a diverse rangeof topics presented by the ArkansasInstitute for Continuing Legal Education and the Arkansas Bar Association and I predict it will not be longuntil the general level of competency of all practicing attorneys in Arkansas will he noticeably improved.
IOLTAThe Interest on Lawyers' Trust Ac
counts program (I0LTA) is alive andwell thanks to the efforts of its executive director, Susanne K. Roberts,and the many attorneys throughoutthe state who have assisted with herrecruitment efforts. Due to sufficientnew additions of participating attorneys and financial institutions.approximately $120,000 will beavailable during 1988 for scholar-21Arkansas LawyerlJanuary 1988
January 1988/Arkansas Lawyer/3
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------ And we continue -----The Roster of Attorneys by County and City
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THE ARKANSAS LEGAL DIRECfORY.Alphabetical listing of Firms
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SPECIAL FEATURE$-
• A handy guide to county. state andfederal offices including departments ofthe U.S. and Arkansas state government.
• A complete digest of courts containingterms, rules and juriSdiction of federal,state and local courts with names.addresses and telephone numbers of courtpersonnel.
• A complete roster of attorneys and lawfirms in Arkansas with addresses andtelephone numbers.
• Professional associations includingofficers, committees and sections of theArkansas Bar Association.
• Professional and biographical data ofsome of the law firms and individualpractitioners in Arkansas.
ARKANSAS CODEOF 1987 ANNillATED
Official Edition
A t midnight. December 31. 1987.the Arkansas Code of 1987 Anno
tated becomes the official code oflaws for Arkansas. replacing theArkansas Statutes of 1947. f...- In1984 The Arkansas General Assembly. through its Code Revision Commission. contracted with The MichieCompany for a recodification of thegeneral and permanent law of Arkansas. Working in cooperation with the Commission. The Michie Companydevoted its editorial andtechnological resources tothis project. f...-
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41Arkansas LawyerlJanuary 1988
By Vincent W. Foster, Jr. POINT OF VIEWILETTERS
PROPOSED CODE OF ETHICS
NO PROFESSIONALSIN GOVERNMENT?
On June 9, 1987, Governor BillClinton appointed a 19-memberCode of Ethics Commission to develop a comprehensive code ofethics for public officials and employees. By the meeting of theHouse of Delegates in Fayettevilleon October 24, 1987, the Commission was only in the early draftingstages of a proposed ethics code.The House adopted a generalpolicy concerning ethics legislation and acknowledged it wouldbe necessary for the Association'sLegislative Oversight Committeeto deal with this matter as it developed since the House would notmeet again until January.
On October 26, the Committeemet to consider drafts by subcommittees of the Commission.On October 28, AssociationPresident John F. Stroud, Jr.,President Elect Philip E. Dixon andVincent W. Foster, Jr., chair of theLegislative Oversight Committee,appeared at a public hearing ofthe Commission to present thegeneral policy statement of theHouse which was adopted fourdays earlier. In addition,President Stroud identified twospecific areas of concern: I) proposed restrictions on the practiceof legislatorllawyers and membersof their firms before governmentagencies and, 2) provisions whichwould require legislator/lawyersand public officials to make disclosures which might violate theRules of Professional Conduct related to confidentiality.
On November 13, the Commission issued a draft of the proposedEthics Code and on November 21.the Committee met and developedcomments on specific proposals.President Stroud, President ElectDixon and Foster appeared at apublic hearing of the Commissionon November 23, accomponied bystate Senator Wayne Dowd ofTexarkana, and presented thesecomments. Dowd, an attorney, testified concerning his personalview of the practical effect of someof the proposed prohibitions.
COMMENTS BY ARKANSAS BARASSOCIATION ON DRAFT CODE
OF ETHICS BILL"The Arkansas Bar Association
supports the concept of legislation
which more broadly addressesethics in state government thanprevious legislative enactments,and commends the Governor'sCode of Ethics Commission for thetime and effort they have devotedto this project. The Association haspreviously supplied the Commission with a general statement ofpolicy on the proposed code. Webelieve the state has a legitimateneed to attract qualified professionals for service in governmentas well as to maintain high ethicalstandards, and we are concernedthat the proposed code unnecessarily discourages professionalsfrom participating in government.The Association requests the Commission to consider the followingfour specific concerns about theproposals in the draft code whichwere released by the Commissionto the public on November 13, 1987:
"I. Chapter V, section HI), in effect prohibits lawyers who arestate legislators and all other attorneys in a firm with a legislator/lawyer from 'appearing' beforeany state agency for compensation, except judicial proceedingsand the Arkansas Workers' Compensation Commission. The provision has a corresponding prohibition against attorneys in a firmwith a lawyer who serves on thequorum court appearing beforecounty agencies and a prohibitionagainst attorneys in a firm with alawyer who serves on the citycouncil or board appearing beforemunicipal agencies.
"Because our state and localgovernments rely upon part-timelegislators who receive modest orno compensation, their abilities to
earn a living from their primary vocation should not be unnecessarilyrestricted. We believe that thecitizens of Arkansas are wellserved by having appropriate representation of attorneys among themembers of the law-makingbranches of state and local government. In the 76th General Assembly, there are 14 senators and 17representatives whose primary vocation is the practice of law.Twenty-five of these legislator!lawyers practice in firms withother attorneys. The proposalwould prevent not only these legislators but also any attorney in alaw firm with them from representing any client with a dispute underthe jurisdiction of any state agency. This prohibition is not limitedto adjudicatory proceedings andcould include representation involving, for example, a tax refundclaim before the Revenue Divisionof the Department of Finance andAdministration;' a license application with the Department ofHealth; a corporate filing with thesecretary of state; an industryseeking approval of industrial revenue bonds before the ArkansasIndustrial Development Department; a claimant before the Employment Security Division; and aconsumer complainant before theInsurance Department or the Securities Department or the Consumer
State Sen. Wayne Dowd of Texarkana told the Code of Ethics Commission inNovember that the restrictions on lawyerllegislators in the proposed ethicscode would "chW lawyers from wanting to be legislators." Sen. Dowd, alawyer for nearly 23 years, appeared before the Commission with ArkansasBar Association President John F. Stroud, Jr., of Texarkana, and PresidentElect Philip E. Dixon and Vincent W. Foster, Jr., chair of the LegislativeOversight Committee, both of Little Rock.
Protection Division of the Office ofAttorney General. We are concerned that the partners and associate attorneys of legislator/lawyers and of potential candidates for the legislature shall determine that this broad restrictionupon their practice is simply toogreat a price to pay for associationwith a legislator, in addition to thetime and financial sacrifice thatmany legislators must alreadymake to fulfill their legislativeduties.
"It has been suggested at apublic hearing of the Commissionthat this proposed absolute prohibition is necessary not only toeliminate attempts by legislatorsto improperly influence publicservants, but also to eliminateeven the appearance of impropriety. The Arkansas Model Rules ofProfessional Conduct. adopted bythe Arkansas Supreme Court togovern lawyers in Arkansas, provide expressly that it is professional misconduct for a lawyer to stateor imply an ability to influence improperly a government agency orofficial. (Rule 8,4(e),) Violations ofthis and other professionalstandards by attorneys are currently punishable upon complaintto the Arkansas Supreme Court
6/Arkansas LawyerlJanuary 1988
Committee on Professional Conduct. Under other provisions of thedraft ethics code, a legislator whoattempts to use his official position to secure anything of materialvalue that would not ordinarily accrue to him in the performance ofhis official duties is guilty of a violation - a class A misdemeanor.(Section l(j) of Chapter V,) In lieu ofan absolute ban upon representation before governmental agencies, we suggest this proposedprohibition be expanded to encompass attorneys associatedwith a legislator/lawyer who attempt to use the official position ofthe legislator/lawyer to influencethe conduct of a public servant.This specific prohibition would appear to be a reasonable and adequate protection against theabuse which is the concern of theCommission when balancedagainst the likely side effect of anabsolute ban - the eliminationfrom public service 0\ those wellqualified attorneys who wouldnever attempt to abuse their position as a legislator.
"2. Chapter V, section 1(h), requires a public servant. other thana state legislator, who is requiredto take any action or make any decision in the discharge of his offi-
cial duties that may cause financial benefit to him or 'a businesswith which he is associated: toprepare and file a written statement describing the matter 'andthe nature of the potential conflict.'Section 1(i) places a similar requirement upon a state legislator.Our concern arises from thevagueness of: (1) what is meant bythe 'business with which he is associated: and (2) the term 'the nature of the potential conflict.'
"Does this 'business' include aprofessional association? Does'benefit to a business with whichhe is associated' include a benefitto a client of the public servant'slaw firm? Does this benefit includepotential sharing of fees which another attorney in the firm may earnfrom prospective business with anexisting client as a result of the enactment?
'We have no quarrel with a requirement that a legislator who isa member of a profession disclosethat he or his firm has a client orclients with an interest in the passage, defeat or amendment of aparticular bill if the legislator,through the professional association, may receive a financial benefit. We are concerned, however,that a requirement of a more specific disclosure of 'the nature of thepotential conflict' may cause thelegislator/lawyer to violate Rule1.6 of the Rules of ProfessionalConduct governing the conduct ofall attorneys who practice law inthe state of Arkansas. This ruleprovides that with certain exceptions not applicable to this issue, a'lawyer shall not reveal information relating to representation of aclient unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation.' The Code of Professional Conduct of the American Institute of Certified Public Accountants similarly provides that withcertain exceptions not applicableto this issue, a 'member shall notdisclose any confidential information obtained in the course of aprofessional engagement exceptwith the consent of a client.' (Rule301.)
"We recommend that section1(h)(1) and 1(i)(1) be amended toclarify that these requirementsshall not obligate the public servant and the state legislator to vio-
late a code of ethics or professional responsibility with which hemust comply in the practice of hisprofession.
"It has been suggested at ameeting of the Ethics Commissionthat a violation of this professionalstandard can be avoided by advance consent by the client to adisclosure. First, this presupposesthat at the lime of the engagementor before substantial serviceshave been performed by a legislator/lawyer or by attorneys in thesome firm, they know in advanceof all legislation which may beproposed. An attorney in a firmwith a legislatornawyer could besubstantially involved in a representation of a client on a matter requiring confidentiality well in advance of a legislative session orbefore a bill has been introducedwhich would be beneficial or detrimental to the interest of that clientand thus to the compensation ofthe attorney, Secondly. if onlylegislatornawyers and attorneysin their firms are required to obtain waivers of confidentialitybefore their engagement onmatters which possibly could bethe subject of legislation, they willbe prejudiced in the marketplaceand thereby be further discouraged from public service.
"Finally. if the client will not consent to the disclosure. the legislatornawyer is in the untenable position of the firm withdrawing midstream from representation of theclient, violating the Rules of Professional Conduct, resigning fromthe legislature or facing criminalsanctions under this proposedcode.
"3. Chapter V, section l(I), prohibits a public servant other than alegislator from seeking employment with a business which is regulated or subject to control by agovernmental body which heserves. This would require thepublic servant to resign beforemaking any job application. Section l(c) prohibits not only a formerpublic servant but also his employer from providing assistance orappearing in connection with aspecific matter in which the formerpublic servant personally andsubstantially participated duringthe public employment. Thisprohibition applies for a period ofone year following the terminationof public service of the public ser-
van!.'We concur with the comments of
James Hamilton who testifiedbefore the Commission on October28, 1987, that these restrictions aretoo onerous and 'could greatly hinder the ability of a public servantto find private employment, particularly one who has had wide-ranging government experience andhas been responsible for manymatters.' We are convinced thatthese restrictions would causewell-qualified professionals lawyers. accountants, engineers- to avoid public service.
"Rule 1.11 of the Rules of Professional Conduct restricts the representation by a former governmentemployee concerning a matter inwhich he participated personallyand substantially and the prohibition is not limited to one year. ThisRule does not apply to other lawyers in a firm with the former government employee, however, if thedisqualified lawyer is screenedfrom participation and written notice is given to the appropriategovernment agency. We believethe codification in the proposedethics code of Rule 1.11 will amplyprotect the public interest inpreventing a lawyer or other professional from exploiting publicoffice for the advantage of a private client without unnecessarilyhindering his ability to obtainprivate employment after publicservice. H
The Commission subsequentlyvoted:
• to adopt the Association's recommendations concerning successivegovernment and private employment;
• to delete the requirement thatlegislatorllawyers disclose the"nature" of a conflict by attorneys intheir firms; and
• to eliminate the prohibition uponan appearance before governmentagencies by attorneys in a firm withlegislatornawyers and only to restrictthe practice of legislatorllawyers toappearances in adversarial proceed·ings w here there will be a record of theproceedings. 0
FOOTNOTE
IEmployees of accounting firms with a legisla·lor/accountant would similarly be borred fromrepresenting a client before the Revenue Division or the Sales and Use Tax Section 01 theDepartment.
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January 1988/Arkansas Lawyern
LAW. LITERATURE& LAUGHTER
Words, it seems, are often createdin unforeseeable ways, This is soeven in the world of law and politics. For instance, law enforcementpersonnel the world over know whatit means to "do Miranda" or be"Mirandized." Lawyers and lawstudents speak ever so casuallyabout "Brandeis briefs."
Last fall. in conjunction with theSenate hearings on Reagan'sSupreme Court nominee, a senatorsuggested that "Bork" become aword, meaning to defame by innuendo. CBS newsman Charles Ozgood had some fun with this concept.
These source allusions are intended to keep me from being "Bidened" (excoriated for casualplagiarism), for I have run across adecision that cries out to have partof its style become a legitimateword.
In Fuddruckers. Inc. v. Doc's B.R.Others. Inc.. 826 F. 2d Adv. Sh. 837(9th Cir. Aug. 24, 1987), the Court recognized that decor of premises andmethod of business may constituteprotectable "trade dress" under theLanham Act. Traveled readers willrecognize Fuddruckers as a chain oftrendy hamburger places entrenched in southwestern Yuppiedom. Based on what Doc's was alleged to have done, I hereby propose for the English language theverb "to Fuddrucker," meaning tocopy an establishment's trade dresswith intent to profit.
This proposal will undoubtedlyevoke many useful derivations gerunds, participles, adjectives,etc. Given the legal origin, this lineof words will crop up first and mostfrequently in court documents and,of course, the news media.
Plaintiffs' attorneys will pleadgenerally that their clients were
a/Arkansas Lawyer/January 1988
By Vic Fleming
Fuddruckered, that a defendantcommitted the offense (unknown atcommon law) of Fuddruckering. Inresponse to interrogatories, theywill particularize the details of thealleged Fuddruckerization. Theywill seek cease and desist orders tocompel an offending party to deFuddruckerate all premises in question.
A repeat offender will be called aFuddruck kind of guy. Newspaperswill report that he reFuddruckered.
An organized movement to stopoffenders will be called anti-Fuddruckers. Folks who feel Fuddruckering should be legalized willunite as counter-Fuddruckers.
As society comes to embrace theconcept, offenders will flee publicscrutiny. There will be UndergroundFuddruckerdom, full of clandestineFuddruckerites. Mothers AgainstFuddruckers will hold periodicnews conferences to denounce offenders. Those vowing to go straightwill join Fuddruckers Anonymous.
Medical science will get involved, announcing various disorders and treatments: Fuddruckerism - the irresistible urge to makemoney by copying another's tradedress; bi-polar Fuddruck syndrome- tendency to copy others' tradedress without realizing it; andFuddruckaphobia - irrational fearof being Fuddruckered.
Fuddrucker therapy fads will bethe rage of the nation in the '90s.Many will make millions frompaperbacks, such as "How to StopFuddruckering without Really Trying," "Three Easy Steps to aFuddruck-free Family Life," "TheAnti-Fuddrucker's Guide to WeightLoss During Menopause" and "RealFuddruckers Don't Eat Steakburgers."
Sometime in the early 2000s, probably under a Republican president,a special Fuddrucker Commissionwill be appointed to study theproblems associated with interplanetary Fuddruckery. This Commission will firmly entrenchFuddruckering in the annals of thebureaucracy, rising to become acabinet level department by the endof the 22nd Century.
Then again, maybe not. 0
Copyright © 1987 by Vic Fleming
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January 1988/Arkansas Lawyer/ll
T•
"There is not going to be in
this firm a permanent
underclass of minority
attorneys who are perpetual
associates. I just don't see
that as a realistic
progression or experience
that this firm is going to
have, There is no sense in a
dead end where you just
park and stay:'
Allan Gates
Mitchell Law Firm
o be on the cutting edge ofchanging the racialmakeup of major lawfirms in Arkansas is nosmall task, but WendellGriffen, Cynthia Davisand Jerry Malone are upto the challenge. They are
among the first black attorneys to behired by three of the largest andmost prestigious firms in Arkansasand they are young, bright and eager to prove their professionalworth.
• Wendell L. Griffen, a native ofDelight. graduated from the University of Arkansas School of Law, Fayetteville in 1979. Before attendinglaw school he served as an officer inthe United States Army. A formerchair of the state Workers' Compensation Commission, he's now apartner in the firm of Wright,Lindsey and Jennings in Little Rock.
• Cynthia J. Davis calls HotSprings home. She received her lawdegree from the University of Arkansas at Little Rock School of Law in1985, where she was a RockefellerScholar. Davis was the first black toclerk for the Mitchell Law Firm in Lit-
Wendell Griffen"I've got to balance• two things - my
abilities as alawyer and mypersonhood as ablack person."
l2lArkansas Lawyer/January 1988
tle Rock and was offered an associate's position there before graduation. She now works in the firm'sgeneral litigation division.
• Jerry L. Malone, the son of asharecropper and a native of Earle,is a 1985 graduate of the UALRSchool of Law, where he ranked fifthin his class. He was also a Rockefeller Scholar and was managing editor of the UALR Law Journal duringhis third year. Malone was the firstblack to clerk for the Friday, Eldredge and Clark law firm in LittleRock, where he is now an associatemember.
These individuals are proof thatArkansas law firms are lowering thecolor barrier, despite a waning civilrights' movement and dying publicsupport for affirmative action goalsor quotas.
Malone describes the Fridayfirm's philosophy this way: "If a person can be profitable, I think thecolor of his skin should not make adifference when giving that personan opportunity as long as that person can do what the others do. TheFriday firm has the idea that itwants to be full service. To do thatyou have to have people who arediversified in their views. To havepeople who are all alike - of onepersuasion - is going to limit youin your outlook and in your perspective on things. Bringing in peoplewith different backgrounds willhelp the firm to be full service."
Griffen, Davis and Malone battlea small and narrow view held bysome in the black community that ablack attorney working in a predominantly white firm is a turncoat.
"At one time, I took that kind of reaction very painfully and personally. I've come to conclude that thosefolks live with a disability that I cannot cure," Griffen said. On thereverse side, he finds a lot of acceptance and pride. "A lot of blacklawyers are just proud that one of usis showing the whole legal worldthat we are as good as anybodyelse:' he said.
Davis and Malone share similarexperiences and try to avoid wearing two hats. "I try to make the person that I am fit into both worlds. Iam not ashamed that I am black andI don't try to tum into a grey personor a white person," Davis said. InMalone's words: ''You don't have togive up your blackness."
Griffen adds: "I have to be honest.
intellectually and socially, with myself. I am a partner in one of the biggest law firms in the state. The majority of my partners have culturalbackgrounds that are functionallyand fundamentally different frommine. They may be tolerant of. receptive to and sensitive about thesocial and cullural issues that I relate to as a black person, but theydon't have to be. I live with it. Theyare not options for me to contemplateAnd I live with those issues as amember of this law firm, recognizing that those issues cannot dictatemy life. I've got to balance those twothings - my abilities as a lawyerand my personhood as a black per-son."
Allan Gates, of Little Rock, awhite attorney and a senior partnerin the Mitchell Law Firm, believesGriffen, Davis and Malone represent a trend in hiring in Arkansaslaw firms which will grow.
'1 think there is no doubt that youwill see more minority attorneys inUttle Rock firms. I think ultimatelyyou will see them everywhere." hesaid. He explained that it's mainly afunction of numbers - a firm in Little Rock with 50 attorneys is going tohire more people faster than firms inother cities and towns with 15 attorneys on staff. "Qualified black lawgraduates are going to be attractedto the larger cities for larger salaries and for what they perceive is agreater opportunity at acceptanceand advancement." he said.
Gates also sees partnerships byblacks in white law firms as a growing reality.
"There is not going to be in thisfirm a permanent underclass of minority attorneys who are perpetualassociates. I just don't see that as arealistic progression or experiencethat this firm is going to have. Thereis no sense in a dead end where youjust park and stay," Gates said.
William Clark, of Little Rock, awhite attorney and senior partner inthe Friday firm, agrees. 'We haven'thad too many experiences wherewe failed to make an associate apartner." he said.
According to Bruce Cross, of LittleRock, a white partner in the House,Wallace and Jewell law firm, partnerships are also a reality for blackassociates in the House firm. "Iknow a few years ago, the samequestion was being asked of usabout female attorneys. Partner-
...,.,,""""~
Cynthia Davis"I try to make the• person that I am
fit into bothworlds."
/
/Jerry Malone
"Bringing in• people with
differentbackgroundswill help thefirtJl ~ fllilservice:'
lanuary 19881Arkansas Lawyerll3
by some of the same folks who havebeen holding it up:' Griffen said. Hebelieves that aggressive recruitment of black lawyers and lawstudents will aid in the removal ofthe color barrier.
"My complaint about black lawyers and white lawyers in Arkansasis that we basically orbit eachother," he said. Griffen said that attendance by black lawyers at the Arkansas Bar Association's annualmeeting is minimal at best and thatmost of the local bar associations donot aggressively recruit blackmembers. Griffen adds that removing the color barrier will take a cooperative effort. "U Wright. Lindseyand Jennings had not wanted to integrate this law firm, I would not sithere. On the other hand, if I had notpersevered and applied myself, Iwould not sit here. So, there has tobe a combined effort on the part ofblack law graduates and the whitefirms if there is to be a change. Without it, there will not be a change. It'sjust that simple:' he said.
With competent attorneys likeGriffen, Davis and Malone in thelegal marketplace, the major lawfirms in the state will have manychances to employ black attorneys.By doing so, the law firms will profitand the nation will see thatArkansas' law firms are aggressively lowering the color barrier tomake the state "a land of opportunity" for all its lawyers. 0
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part series on black lawyers in Arkansas by Phyllis Harden Carter.Carter is a former assistant city attorney for the city of Little Rock and received a law degree from MarshallWythe School of Law. College ofWilliam and Mary. in Williamsburg.Virginia, in 1975. She is admitted tothe Arkansas and Virginia bars.
Born 2-12-24, Amarillo. TClIas:U.S. Navy. 1943-1946: OklahomaState UnivenilY, 1946-1949. B.S.Mech. Engineering: Unit Rig &Equipment Co.. Tulsa. 1949-1982:Responsible ((M'" all engineering(uncltonS 1957-1975: Formed Com·pany for Unit Rig in Brazil 1976:General Manager, Canadian Operations, 1917: In charge of Unit RigProduct Liligation 1977-1982.
ships for black attorneys and forwomen are a reality as far as I amconcerned and as far as everyshareholder I know is concerned:'Cross, who heads the firm's Recruitment Committee, said.
Being a trendsetter requires a realistic approach, said Griffen. Hewas made a partner in the Wright.Lindsey and Jennings firm in December 1983, four and one-halfyears after he joined the firm. "Firstof all, you must realize that you aregoing to be a part of some socialpioneering and when you're pioneering, you're going to have toclear some underbrush," Griffensaid.
Clark points to an event which occurred about six months ago. One ofthe Friday firm's clients took Maloneand another of the firm's young attorneys to lunch. The client's topmanagement was there and complimented Malone and the other attorney very highly and presented themwith a gift. it was extremely gratifying to see that sort of thing," Clarksaid. "Personally, I have never hadany misgivings about the feelingsof a client with respect to a blacklawyer. Perhaps there are some butnone have come to my attention. Idon't believe it makes any difference whether you're white or blackbecause the ordinary person inseeking counsel is looking for thebest person they can find under thecircumstances. U Jerry Malone hasbuilt that reputation and they'resent to him, they won't care whetherhe's black or white," he said.
The color barrier hasn't completely fallen in Arkansas law firms.However, the recognition by the barthat it should be removed and anhonest attempt on the part of somelaw firms to do just that are makinggreat strides toward its elimination.
"The barrier will not fall of its ownweight. It will have to be removed
G.A. Tomlinson P.E.
Phase I
Automating the Law OfficeResponses to a recent survey of Arkansas Bar Asso
ciation members reflect a desire for articles in The Arkansas Lawyer related to automating the law oUice.This article. in keeping with that desire. is a shortprimer on ways to increase the productivity of the lawyer: what is out there. what can be done and why itneeds to be done. While this article concerns onlycomputers and software. a second article...Automating the Law Office: Phase 2:' will review other areas oftechnology.
'--..... ; •...
I n these tough times. thoselawyers who can provide
a client with a better workproduct and who can provide it quicker and withless out-of-pocket cost thanothers are going to be thesurvivors. Numerous sturlies by the American Bar Association and various statebar associations with regard to the size and productivity of the "average lawyer" indicate that mostlawyers in the UnitedStates today practice in small firms.with 70 percent practicing in firms offive or fewer lawyers. Until recently.word processing was considered relatively expensive and a cost they simplycould not afford or justify. With techno·logical advances and the reduced costof obtaining such equipment. lawyersare beginning to understand thetremendous potential of "computerization,"
BUYING THE EQUIPMENTWord processing
Five years ago, the cost of a singlededicated word processing systemranged from $12,000 to $20.000. Todaythat same function can be performedby a $2,000 micro-computer. Word
".
-..'-~.. ;"f ;,
processing programs are usually theeasiest to learn and the first mostlawyers purchase in order to increasetheir productivity. Word processingcan create a document quickly, correctmistakes, replace old phrases withnew and delete. copy and move blocksof text. It can also oUer many advantages over typing, including:
• Higher quality: The time spent onre-typing can be devoted to thinking and clarification. The result isa better final product for the client.
• Faster revision: Because only thenew material is typed and thecomputer and printer reproducethe rest. the entire revised document can be printed faster thanmost people can type a few pages.
• Better looking final copies: Because the printerdoes the re-typing, margins can be changed,ti ties can be addedhere and there andlayouts can be fixedwhile retaining a fresh.well·formatted andprofessional lookingdocument.Forms and clauses which
are commonly used by lawyers can be saved on computer disks where minorrevisions to names, dates,etc., are easily made.Also. phrases and clausescan be pulled out and inserted into individual documents without needing tobe re-typed.
Word processing programs are available toquickly check the spelling,grammar and punctuationof a document. Some programs even prompt an attorney with questions oroptions which expedite theproduction of documents
and pleadings. Word processing alsomakes work more interesting and thepeople using it more productive, especially secretaries and administrativeassistants who are relieved of a lot of"grunt" typing.
Accounting/time and billing softwareStudies by the American Bar Associ
ation's Economics of Law Practice Section indicate that after word processing, the next most frequently usedsoftware program is a "time and billing package."
Increasingly. sophisticated clientswant more information when billed forservices. including which lawyerperformed the service. how much timewas involved and what the billing
By Charles A. Morgan
.:', ., '. ',' :',' ~ :.~~~ ".,
' ..
CommunicationsThere are a number of
commercially availabledatabases which offer awealth 01 information bymerely dialing a telephone number and reaching some remote computer. The cost of using theseexternal databases canbe as high as $150 perhour or as little as $6 per
hour. depending on the type 01 inlormation sought. To tap into thesedatabases you need a computer, acommunications software programand a modem,
A modem is nothing more than apiece of equipment that connects onecomputer via telephone with anothercomputer. converting the signals to a
Integrated softwareA recent study indicates that the av
erage computer user can successfullyuse and master three different computer programs. The computer user whoseknowledge is above average or advanced and who is willing to devote asubstantial amount of time to learningcan master five programs successfully. Software developers. appreciativeof these limitations. are developingprograms that have multifunctions combined database. spreadsheet,word processing and communicationsprograms - to permit the user to moveinformation from one application tothe other without having to re-key or
re-type it.One alternative to pur-
chasing integra1ed (multifunction) software is topurchase a program thatallows the user to importand export data in a number of standard formats,By having programs thatinput or print out data inone of these formats. theinformation from a database program or a spreadsheet program can beused in a totally unrelatedword processing programwithout needing to re-keythe data.
• Faster access: The informationneeded. can quickly be found without looking through every record.
• Easier to update: Current information can be added. old informationdeleted and mistakes correctedwithout having to shuJfle records.
• Offers quicker sorting: A databasecan be arranged in any manner, Itcan be alphabetized by last nameor sorted numerically. i.e.. forfinding adverse parties listed alphabetically between November23. 1986. and January 17. 1987.
• Flexibility: The information can bedisplayed in any format.
A database lets the user easily pick
and choose information on each recordand allows that information to beprinted quickly and easily. Databasescan be used by attorneys for docketcontrol. library and resource files,mailing lists. mailing labels. client listmaintenance. work product retrieval.litigation support and for hundreds ofother uses.
Database programsA database program or application
is one that helps organize. update andreport on whatever information mightordinarily be kept in lists or on filecards. Compared to a shoe box lull ofindex cards or to slips of paper. a database program offers these advantages:
rates were for the lawyers. associatesor paralegals furnishing the service.The time and billing software programs offer not only the ability to generate statements. but. just as importantly. the ability to review on a monthly. quarterly or annual basis a greatdeal of management information. Forexample. the information that is"typed" for billing purposes can be integrated into a general ledger program. without the need for re-keyingthe information. and used to preparemonthly profit and loss statements.Reports can also be generated whichwill indicate the most productiveareas of practice. This type of management information is im-portant and will becomeincreasingly more important for those lawyers whointend to practice profitably.
To assist lawyers inevaluating the varioussoftware programs available. the Economics ofLaw Practice Section hasestablished the Lawyer'sTechnical Advisory Committee (LTAC). The evaluations of various software products can beobtained from LTAC for anominal charge. savingattorneys thousands ofdollars in time and inproducts which don'tdeliver as promised. LTACusers are cautioned toconfirm that the version ofthe software they are considering purchasing is thesame version which wastested and approved byLTAC.
Lawyers who can provide a client with a better workproduct and who can provide it quicker and with lessout-ol-pocket cost than others are going to be thesurvivors.
I6IArkansas Lawyer/january 1986
form that can be received and transmitted by a telephone line. The industry standard is the modem manufactured by Hayes. Any modem purchasedshould be Hayes compatible andshould operate at a minimum of 1200baud - bits - per second. Newermodems coming on the market cantransfer data at twice thatrate but they cost about SOpercent more. Also. manyremote databases will notyet accept this speed.
J. Harris Morgan. a solopractitioner in Greenville.Texas. has been very activein encouraging lawyers topractice economically.Harris has often stated thatthe modem has given himthe ability to research andcompete with the largestlaw firms anywhere in thecountry. The ability to dothis research requires acertain expertise that canonly be obtained throughactual. "hands-on" experience.
When buying a communications program. make sure it can be adjusted tothe communications speed and theprotocols - format - in which the datawill be sent. Different computers usedillerent formats or protocols to sendand receive data. A communicationsprogram can adjust the speed or theway in which the da1a is transferred.
Spreadsheet programsThe next type of software to be con
sidered is a spreadsheet program.Think of a spreadsheet as a large electronic worksheet that can have asmany as 250 columns and as many as10.0CJ0 rows of facts. numbers, names,fractions or any label or value to besorted. computed or identified.Spreadsheets permit the user to workwith extremely complex numbers orfractions and will automatically calculate the totals in the columns and/orrows specified. Here are a few of theadvantages of the electronic version ofa spreadsheet:
• Easy correction and update: Thereis no need to use up V2 mile of cal-
culator tape to get the wrong answer. Changing or addingnumbers and fonnulas is simply amatter of re-keying the changes oradditions and letting the programtake care of the rest.
• Try the "what if" approach: Because the spreadsheet can do in a
\
matter of seconds what would normally take hours to do by hand.people have begun to come upwith "what if" figures. Experimenting with formulas and numberscan result in a whole new range ofpossibilities.
Electronic spreadsheets can be usedfor budgeting. forecasting. amortization schedules, present value analysisand hundreds of other applicationswhere calculations must be quick andaccurate. Spreadsheets are especiallyhelpful for the preparation of amortizations that aren't "in the book." Thespreadsheet for an amortizationschedule can be changed so that thepayment amount and the interest ratecan be altered periodically throughoutthe schedule.
Utility programsAfter using a computer long enough
to understand its potential and itslimitations. the user will develop aneed for some companion programsthat are called utilities. The utility programs enable the user to transfer files
and disks and make duplicate andback-up copies. II something happensto the primary source of informationand a back-up copy has been made.the information itself has not been lost.Utilities can also be used to restorefiles from disks that have been damaged so that the files can be used
again.Utility programs allow
the user to change the format from one operating system to another - IBM toMacintosh. Macintosh toApple. Apple DOS toProDos. CPM to Pascal. Toavoid going through themechanics of convertingforms or data. there arecommercial services thatwill convert this data for afee. This cost can be expensive. but it is still generallycheaper than the expenseof re-typing the data. Remember. labor is the largestsingle cost of operating youroffice.
WHAT'S OUT THERE?Electronic mail
Electronic mail is the ability to transfer electronic messages. documents.letters, international cables. etc., fromone office to another anywhere in theworld by telephone. Transfer by electronic mail is analogous to a FAX machine except that it bas the ability tocapture the informa1ion in a form thatcan be used instantly by a wordprocessing program without needingto be re-typed.
One electronic mail service is ABANet. which is operated and sponsoredby the American Bar Association. Inaddition to combining electronic mailtransfer between lawyers and theirclients, ABANet also provides airlineschedules, news. wires, securities'market information, Lawmart (on-linelegal forms), commercial newsletters.court reporting services. etc.
Legal research servicesThere are three legal research
services available - Westlaw, Lexisand Verilex - whereby case law and in
Five years ago. the cost of a single dedicated wordprocessing system ranged from $12.000 to $20.000. Today that same function can be performed by a $2.000micro·computer.
January 1988/Arkansas Lawyerl17
some cases statutes can actually beresearched in any jurisdiction locatedwithin the U.S. There are hundreds 01other commercial databases that arealso available to subscribers.
Other prognm...There are programs on the market
that will take care 01 graphics presentations. plating. printing. drawing andpreparing exhibits lor trial. Althoughall offices may not require these capabilities. if needed. these programs canexpand the ability to produce stunningly professional exhibits andgraphics presentations.
THE FUTURE TECHNOLOGYWhere are we headed in the next five
years? It is especially important thatthe solo practitioner or the small lawoffice keep an eye on personal computer trends. It is the small firm or solopractitioner that derives - or shouldbe deriving - a greater proportionatebenefit from micro-computerization.
Look for storage capacity to continueincreasing at reduced costs. The S.24"floppy disk will gradually be phasedout in lavor 01 the new 3.S" disk. The
present 3.S" disks have 300 to 500 percent more storage capacity than theS.25" disks that were standard in the industry just two years ago. And. newtechnology will permit the 3.S" disk tostore almost S.ooo.ooo bits (five megabytes) 01 information by 1990. In addition. hard disk drives that held livemegabytes of information and cost$1500 three years ago are being replaced by drives that hold 20 megabytes and cost less than $800. Withinthree years. 50 megabytes 01 storagewill be available for less than $1000.
The newest storage device of the future is the Optical disk (CD-ROM disk).By the year 2000. a law lirm's entire library will be able to be contained on 10to IS CD-ROM disks. "Pocket parts" willbe a thing of the past. Book dealers willjust mail an entirely new set of bookson a Single disle.
WHY COMPUTERIZE?There are many reasons to comput
erize a law office and most of them areeconomic. Some of the more commonreasons to consider computerizing various functions include:
• Increased productivity
, '
~.
" ~. .' ..,.. - .
: . .".' .'.,..
. ,
• Increased profitability• Improved accuracy in document
production• More responsive client service• Improved client relations• Less expensive services to clients• Increased ability to deal with com-
petition• Provision of peak load services• Better control of overtime costs• Better decision-makingA lot of reasons are often given as to
why an office should not automate.Lawyers as a group are the most likelyto offer the following "untruths" regarding computerization:
• The equipment is too complicated. [won't be able to understand it. Thismay have been true a few yearsago. but most equipment and software have been simplified.. evento the point that a lawyer can useit.
• We are doing okay now. so whychange? Increased competitionwill demand that we are able toproduce more work with the sameor fewer people or that we produceit at lower cost.
• The equipment is too expensive
It is especially importantthalthe solo practitioner orthe small law office keep an eye on personal computer trends. It is the small firm or solo practitioner thatderives - or should be deriving - a greater proportionate benefit from micro-computerization.
I8IArkansas Lawyer/January 1988
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We do more than print the lawwe put it into perspective...
Southeast ArkansasEd Arnutt(513) 741-0811
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We must begin today if we are going toremain competent. competitive andproductive.
As J. Harris Morgan repeatedly says,"Begin - and the rest is easy! 0
Editor's Note:Charles A. Morgan, of Texarkana, is
chair of the Arkansas Bar Association'sEconomics of Law Practice Section andis a member of the Smith, Stroud,McClerkin, Dunn & Nutter law firm. Anative of Evansville, Indiana, Morganreceived his undergraduate and J.D.degrees from Baylor University. His concentrated areas of practice include oiland gas, real estate, commercial andcorporate law. Our thanks to BeverlyBrock, the Smith and Stroud firm's officemanager, for her assistance in preparing this article.
and we can't afford it. Salaries, notequipment. are an office's largestsingle expense. The truth is thatwe cannot afford not to automateour offices.
• We are too small to use that equipment. It is in the smaller officesthat we realize the greatest potential for cost savings. The small lawfirm or solo practitioner does nothave the benefit of sharing orspreading many overhead costsover several professionals. Accordingly, they must be able tomaximize their time and theirproductivity.
In June 19B6, the American BarAssociation's Economics of Law Practice Section, in conjunction with theState Bca of Texas, hosted the secondannual INDEX: LEGAL, AUTOMATINGTHE LAW PRACTICE seminar inDallas, Texas, at lnfomart. (The thirdannual seminar will be held there inJanuary 1988. For more information,contact the ABA's Economics of LawPractice Section or the State Bar of Texas.) The concluding speaker was J.Harris Morgan. He reminded all participants that:
Technology is not a goal. Technologyis a tool to be used to reach a goal.
Studies by the American Bar Association reflect that in the last 20 years attorneys have experienced a 200 percent increase in costs and expenses inrunning their offices, but have onlybeen able to achieve a 50 percent increase in profitability/productivity. Ifwe are going to continue to stay competitive, we must be productive. To beproductive, we must work faster andmore accurately while not pricing ourselves out of the market. We can nolonger wait to implement this technol·ogy.
Lawyers must understand that therewill always be something newer, faster, cheaper or better in the market. butwaiting for the technology to evolveonly places us farther and fartherbehind. We cannot worry about thenewest state of the art device when wehaven't even begun to understand orimplement the technology that hasbeen available for the last five years.
Salaries. not equipment. are an office's largestsingle expense, The truth is that we cannot afford notto automate our offices,
January 19BB/Arkansas Lawyerll9
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20/Arkansas Lawyer/January 1988
THE ELECTRIC COOPERATIVES OF ARKANSAS
AMAJOR SOURCE OF ENERGYIN ARKANSAS' DEVELOPMENT.
Carl S. WhillockPresident, ArkansasElectric CooperativeCorporation
"Just as you are committed to buildingyour community through professionalleadership, we support your local effortsthrough an active economic developmentdepartment.
"By working together we pledge to makethe next 50 years the greatest in our history.We know the power of cooperation. Becausea cooperative is what we are."
Arkansas Electric Cooperative CorporationP.O. Box 9469/ Little Rock. Arkansas 72219
Developing Arkansas' Resources
aecc
"For a half-centuryyour electric cooperativeshave played a major rolein the development ofArkansas.
"That role has neverbeen more active orimportant than today.With significant powercapacity in coal andhydro generating plants,the cooperatives offer
tremendous incentives to new or expandingbusiness and industry.
"Arkansas' work ethic, natural beauty,Mid-America location and excellent waterand highway transportation make our statemore attractive than ever.
"Today the 62% of the Arkansas landarea served by the electric cooperativescan attract major industry due to long-termpower supply rates. Rural electric powercreates jobs and keeps families together.Now and in the future.
January 1988/Arkansas Lawyer/21
I
(
.~.
•
Owen Hunt. "o.r:·221Arkansas Lawyernanuary 1988
-.
-
I
,.1'
,
Compliments 01 Arkansas ArtislS Registry
"UP AGAINST THE WALL"
George Chambers.Mamoushka & Perot #2
ComplimenlS of A,tolLlO. Arlisls Registry
By Chris Barrier
Okay, close your eyes, Now,tell us what you've got on thewalls in your law office (be
sides your license and the calendarfrom the abstract company), If you'relucky, maybe a couple of the printsthat go with the duck stamps, andsome mawings by your kids.
If you're unlucky and have a decorator (or fumiture store) for a client,maybe some pictures of guys in redcoats on horseback talking aboutfoxes.
If you're real unlucky, and thosekids have become teenagers, maybe you had to frame that BeastieBoys poster they gave you lastChristmas.
Chic ain't cheap ...Or maybe your decorator client
(the one who picked those uncomfortable chairs) also spent a lot ofyour money and bought some original art, stuff you don't understand oreven like, but which goes with thecarpet.
It doesn't have to be that way.(Those kids are another issue entirely.)
Specifically, there is a way foryou to see what is available frommore than 300 artists living andworking here in Arkansas. You canget some advice thrown in for theprice of the art (which is generally
lanuary 19S5/Arkansas Lawyer/23
pretty reasonable) and also find outsomething about the artist.
In the process, you will also getsome good feelings about the levelof competence and sophisticationachieved by our own Arkansasartists, from highly realistic landscapes to cutting edge constructions.
Get yourself registered, , ,The three-year-old Arkansas
Artists Registry is housed in theFine Arts Building at the Universityof Arkansas at Little Rock and hastwo bosic functions: l) to maintainan archival record of the work of Arkansas artists; and 2) to promote thesale of the work of those artists.
The Registry is funded by grants;commissions on art sold through theRegistry; fees for specialized services (such as advice on choosingand hanging art); in-kind donationsof materials and services; and Corporate Collectors Circle dues. Thislast category means that, for an annual fee, CCC members get a discount on art purchased through theRegislIy and other special services.Two law firms belong to the CCC.
Although native crafts certainlyhave their place, that is not theRegistry's focus. Its member artistshave studied all over the countryand abroad, and a number are actually better known (and sold) in majormetropolitan markets than in Arkansas.
From Sheridanto Madison Avenue, ..
For example, Metropolitan LifeInsurance Company exhibited acollection of works by Arkansasartists in its Madison Avenue headquarters last summer. The show,which was put together at Met Life'srequest by Townsend Wolfe, executive director of the Arkansas ArtsCenter, was well-received, not asquaint folk art. but as serious,sophisticated contemporary works.
As Wolfe aptly observed on the occasion of that exhibit, "regional art"does not necessarily mean art withan identifiable geographic cast orlook, but merely art produced byartists working in a particular
241Arkansas Lawyernanuary 1988
region. They live and work in Arkansas because they want to. The Registry regards them as a natural resource, to be valued and promotedwithin our own borders.
Likewise, there are not watercolors of daisies and pencil drawings of old farms. It isn't possible todescribe what the works of 300 artists actually are, but an example isuseful:
A major Little Rock financial institution hired a big name national architectural firm to design its headquarters. But. the monumental artwork they commissioned for theirlobby was by an Arkansas artist. awork fully as sophisticated as thebuilding.
The Registry sponsors art showsstatewide. The Small Works onPaper Exhibit will tour the state beginning in January at ArkansasState University in Jonesboro. Otherlocations include Batesville, Russellville, Fayetteville, Pine Bluff,Conway and Little Rock. Watch yournewspaper for your local times andlocation.
Central Arkansas had The AARtShow on November 9-30 at WorthenBank. If you missed that, the 12pieces selected as Best of Show willbe on display at the Little Rock Airport in January.
The regislIy is exploring cooperative arrangements with art galleriesin the state, so that slides of worksby Registry artists can be obtainedthrough local galleries and theworks discussed with the galleryowner.
What art galleries, you say? Arethere any, outside Little Rock andmaybe Eureka Springs? Of course,there are. Just last fall, a gallery inSheridan (population less than4,OCXl) put on a show with works byseveral dozen of the state's mostprominent artists, most of whomwere RegislIy artists (and several ofwhom were also in the Met Life exhibit).
Slide into art , , ,Anyone interested in working
through the Registry to buy originalArkansas art can drop by its officeand look through its slides, with the
help of a staff person.Given some advance notice as to
what sorts of art you are interestedin, the staff can focus your slideviewing time on just those sorts such as landscapes, watercolors,abstract works, etchings orceramics - or even on artists jnyour area.
(By the way, the artists aren't all inLittle Rock or Eureka Springs either.The art departments of virtually allof our colleges have importantartists on their faculties.)
The staff also will help witharrangements for you to see theworks themselves, possibly even inyour own office. But. you are neverobligated or pressured to buy anything. And you know the askingprice of each piece at the time yousee the slides. lf there is enough interest, the Registry plans to bringslides and some works to the Arkansas Bar Association's Annual Meeting in June.
Next time you're scheduled to bein Little Rock and have a little extratime, plan on dropping by the Registry, on the north end of UALR's campus. Call Jayme Tull or Judy Hayesat the RegislIy (569-3288) ahead oftime and they will send you a brochure on the Registry and havesome slides ready for you. (Theyalso usually have some originalworks on hand as well.)
And if you're interested in havingthe same opportunity at the AnnualMeeting, give them a call, or dropthem a line at:
The Arkansas Artists RegistryUALR College of Fine Arts2801 S. University AvenueLittle Rock, AR 72204
You might even want to bring thatdecorator along with you . . . 0
Editor's Note:Chris Barrier, of Little Rock, is a
member of the Mitchell, Williams,Selig and Tucker law firm. He serveson the Executive Committee of theArkansas Bar Association's FinancialInstitutions Law Section and is a frequent contributor of both art and features to The Arkansas Lawyer.
1
u.s. Pon.1 Se,..,.lc:.
STATEMENT OF OWNERSHIIJMANAGEMENT AND CIRCULATIONR~qlJi,r by 39 U.S.C. 168j)
IA. TITLE OF PUBLICATION 18. PUBLICATION NO. 2. DATE OF FILING
The Arkansas Lawyer514161-101410 9-24-87
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Ruth Williams400 w. Markham St. , Little Rock, Ar 72201
7. OWNER (1Io_~d by _ cOrpO","Ofl, its fllI,"t _ltd IIdd,qs mllst M s,.r~d lind _tso Immtd;'ttfy rhuallld~rrht RlJm.... _nd add'.....,.... olll«tholdtrso_{nl or holdi"l J pttr:~n' or mort 01 totlll_m","" 01"«". lIn", o_~d by _ corporaf'ion. 'h~ RlJmn _nd add,ess..., of'h~ Individllal Olom~rs mllnb~ rfltt"- II owned ,'y _ pllttn"rship 0' orht, IIninco",,,,,,Ud firm, its n.m~ lind Mld,us, u ""dIu that 01 ~tN'~ indlvidllil' mllst bt rf"tn. If th" pllblica·tion is pllbllsh~d b, • nonprofit 0"llln;III(IOII, i,s nllm~ lind ildd,,," mllst b~ stll'ed.) (1,,,1'11 1'1111.1' be comp/ettd.)
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'VVLU"CQL~ VL~Q"'"
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111 1216UI HAS NOT CHANGED DURING o HAS CHANGED DURING (1Ie~ns~d, pllbllshu mlUt submlr ~xplllnlltion01PRECEDING 12 MONTHS PRECEDING 12 MONTHS chll"l~ with tills srIlUm~n',)
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me above are correct and complete jrH.,0~ ~~
January 19881Arkansas Lawyer125
mE DEVELOPING LAW
Sales of a Remainder InterestSplit the fee, help a friend and save
a client
By George N. Plastirasand Philip Miron
The minute Bob hung upthe phone, he knew something wasn't quite right.
It wasn't like Frank to invite him to dinner, makingit clear that it was Frankwho would pick up the tab.Frank hadn't offered to dothat since Bob tutored himthrough income tax in lawschool.
When Bob saw him at thetable, he definitely knewsomething was botheringhim.
Bob: "Is the practice oflaw getting to you?"
Frank: "Yeah, you mightsay that. In fact, you don'tknow how close to the truthyou cae."
Bob: "Maybe I could takea few clients off yourhands?"
Frank: "I wish I had themto spare, you know ..."
Bob: "Please, Frank. What's theproblem?"
Frank: "It's a long story,"Bob: 'Tve got all night and the
meter stopped at 5:00 this evening."Frank: "Bob, do you remember the
Jones estate?"Bob: "Isn't that the one in which I
advised you to set up the credit shelter trust and transfer jointly heldproperty into Mrs, Jones' name only?Didn't Mr, Jones pass away a fewyears ago? And, didn't he have acouple of children who were givingyou a rough time?"
26/Arkansas Lawyer/January 1988
Frank: "Yeah, that's the one."
Bob: "Why? What's the matter?With the unified credit and maritaldeduction, Mr, Jones' estate shouldhave paid no estate tax and passed$600,000 tax-free to the children,"
Frank: ..It's not Mr. Jones that's theproblem. We've already filed the estate return and closed the estate, It'sMrs. Jones and her children who aregiving me the headache, In fact, thewhole family seems pretty dissatisfied. Oh, we saved taxes on Mr.
Jones' estate, but on Mrs.Jones' death, her estatewill pay Uncle Sam hisshare,"
Bob: "Remember the unified credit? You shouldsave another $600,000, Together you've sheltered$1.200,000. What is theproblem?"
Frank: "That's not muchconsolation on a $5,000,000estate. [ figure if we'relucky we might pay$2,000,000 in estate tax andthat's with no asset appreciation! I can't even makegifts fast enough to keepthe estate from doubling in12 years! The family is considering changing lawyers. After all I've done!Can you imagine?"
Bob: 'What kind of prop"erty is in the estate?"
Frank: "Bonds and realestate, mostly."
Bob: "Income producing or unproductive land?"
Frank: "Both."Bob: 'Tve got an idea. Let's split
the fee!"Frank: "Bob, I don't think you un
derstand, There will be no fee if Ican't come up with a plan,"
Bob: "What? No, no, Frank. I'mtalking about dividing the propertyinto two bundles of interest; a lileestate and a remainder interest.You remember those concepts fromthe property course, don't you? Mrs.
Jones could sell the remainder interest to the children or to a trust fortheir benefit."
Frank: "Sounds like future interests to me. Bob, don't you remember Ialmost had to repeat our propertycourse because of future interests?"
Bob: "Don't worry. Except for a fewpotential tax problems, it's simple.I'm going to help you."
Frank: 'Tm listening."Bob: "You see, Section 2036 of the
Internal Revenue Code providesthat transfers with retained life estates are not included in the grossestate where there is a bona fidesale for full and adequate consideration received for the property interest transferred. This means thatMrs. Jones could sell a remainder interest in either the bonds or real estate to her children while keepingthe right to income for her life. Sinceher life interest is extinguished ather death, it will not be included inher estate. The result is that Mrs.Jones has eliminated the value ofher life estate from her taxable estate.
How do you value a life estate?
First. you must get an appraisal ofthe property. Then, there are actuarial tables in the Treasury Regulations. Section 20.2031-10. whichshow the value of a life estate andremainder interest based on the ageof the transferor-seller. Use the factor outlined in the IRS table andmultiply it times the fair market value of the property. This should giveyou the selling price of the remainder interest.
Is this legal?
U you mean does the IRS recognize this valuation concept, the answer is apparently "yes." The IRShas issued several private letterrulings on this very issue approvingthe valuation method. (PLR 7806001;PLR 7837003; PLR 8041098; PLR8145012).
What if Mrs. Jones is not expected tolive for the entire average life expectancy?
Currently, the IRS tables arebased on the life expectancy of theaverage person, with a return on investment of approximately 10 percen t. It would not seem fair toequate the remainder interest of aperson with terminal cancer with ahealthy person of the same age; nor
"The remaindersale has manyadvantages,among them
possible reductionof estate taxes , , "
possible incometax write-offs, ..
and the transfer ofproperty outside of
probate."would it appear to be proper to compare income producing propertywith non-income producing assets.The federal courts are sometimesreluctant to make these distinctions, but these factors certainlyshould be considered in valuing theremainder interest.
Unless Mrs. Jones' death is clearlyimminent. I would suggest usingthe IRS actuarial tables (Rev. Rul.80-80. 1980-1 C.B. 194). Also, in valuing non-income producing property,I would make it clear in the purchase agreement that the life tenanthas the right to sell the property andreinvest the proceeds in incomeproducing assets.
You can see the beauty of sellinga remainder interest in unproductive real estate because there is noincome during the life of the seller.Since there is no estate build up,there is no need to worry about appreciation.
Before selling the remainder interest of any asset [ would recommend that we project the annual income to the life tenant less anticipated expenditures and gifts. It maybe that Mrs. Jones would not be better off in selling the remainder interest. It simply depends on the assetand the amount of income necessary for her to live comfortably andnot feel beholding to her children forher support. Keep in mind, though,that if Mrs. Jones dies before her lifeexpectancy, you have probably
saved estate taxes in any event.
You said that the life tenant andremainderman could agree to certain terms?
That's right. There are severalways the terms could be structured.First. Mrs. Jones could sell a legalremainder interest without anyagreement. which means that shewould be subject to the common lawdecisions concerning the rights ofthe parties. For example, in Arkansas a life tenant has a duty to paytaxes on the property (Henderson v.Ellis, 10 Ark. App. 276. 665 S.W. 2nd289 (1984); Magness v. Harris. 80 Ark.583. 98 S,W. 362 (1906)).
Where money or its equivalent isbequeathed for life, only interest orincome can be consumed by the lifetenant unless there are contrarywords of authorization in the will(Chambers v. Williams, 199 Ark. 40.132 S.W. 2nd 654 (1939)), Also, anowner of a life estate in personaltythat cannot be worn au t or consumed by use such as money, notesand accounts may not convert thefunds to their own use but mustpreserve the personalty for theremainderman (Dillen v. Fancher,193 Ark. 715. 102 S.W. 2nd 87 (1937)).Depreciation will be allowed to thelife tenant if he is a legal-life tenant.If a trust is used, the allocationspecified in the trust agreement willgovern, or if the agreement is silent.all of the depreciation will be al·lowed to the income beneficiary(lRC § 167(h)),
I would recommend that the rightsof the parties be spelled out at thetime of purchase. You could negotiate such things as allocations of depreciation, the right of the life tenant to sell the property and reinvestthe proceeds or who will pay formaintenance and other expenses ofthe property. The terms are limitedonly by your imagination. But remember, if you are too creative, youmay be promoting val uationproblems.
Another alternate way to structure the sale would be to transfer theproperty in trust whereby a trusteemakes all of the management decisions. This would be a good idea ifthe life tenant is incompetent or unwilling to handle such matters. Avariation of this technique would beto transfer the property to a revocable trust which could be revokedby either the life tenant or re-
January 19881Arkansas Lawyer/27
mainderman. In the event of revocation. the property would simply become a legal interest.
With respect to valuing the remainder interest. I must warn youthat there is some movement in thefederal courts toward requiring thepurchaser of a remainder interest topay the full fair market value of theproperty without discounting it forthe seller's life estate (Gradow. 87-1USTC § 13. 711. 1987 P-H 148. 511 (CIsCt. 1987)). You should be aware ofthis problem and closely monitor allfuture cases.
What if the purchaser can't afford theremainder interest? I'm not sure thatMrs. Jones' children could producethe amount of money necessary toimplement this plan.
That is one of the major drawbacks to a remainder sale. If thechildren have their own independent wealth. there is no problem. but99 percent of the time this is not thecase.
There are several ways of financing a purchase. First. you could exchange a promissory note for the remainder interest. The note musthave an adequate stated interestand. as with all sales. must be bonafide. Don't even think aOOut monkeying around with the interest orpayment or you'll destroy the wholedeal. You may even consider aOOlloon note after a term of yearswith interest payable during theterm. Another way would be to sellthe remainder interest in exchangefor a private annuity. However. thisis not considered a good option because the remainder interest transferred is not income producing. Ifyou really want to be aggressive. trya seIf-cancelling note. That is wherethe note cancels itself at the death ofthe seller and is not includible in theseller's estate. It's very tricky. however.
Does that mean any other type ofpromissory note could be includiblein the life tenant's estate?
Yes. but remember that unless itis a balloon note. the principal balance will be decreasing and. hopefully. as payments of principal aremade the life tenant may be makingadditional annual gifts or takingtrips around the world to prevent asset accumulation.
28/Arkansas Lawyerl)anuary 1988
"One negativepoint to the
remainder sale isthat the
remaindermandoes not receive astepped up basisin the property onthe death of the
life tenant./I
Mrs. Jones' children would be furiousover a plan which recommendsspending after the annual gifts.
An estate tax rate of 55 percent is agreat incentive to spend.
What about gifting the money to thechildren to purchase the remainderinterest?
There is a danger is tying gifts toremainder interest purchases. Everhear of the step-transaction doctrine? The IRS can collapse a seriesof gifts and the purchase into onetransaction: a sale without adequate consideration is the same asa gift. i.e.. you have just jeopardized your remainder interest salesince it is not a bona fide sale for fulland adequate consideration inmoney or money's worth.
If there is no other way to financethe purchase of the remainder interest. I would recommend that yourclient make a gift and wait at leastone year before allowing the children to purchase the remainder interest. It is called the "old and coldmoney rule."
If you really want to get fancy. gift$600.000 to Mrs. Jones' children. thenwait at least a year wld make a jointpurchase of property. i.e .. Mrs.Jones purchases the life estate andher children purchase the remainder interest.
What's the benefit of this?
The benefit is an additional income tax benefit to Mrs. Jones who
will be able to amortize the cost ofher life estate. even if the property isnondepreciable. In other words. shecould purchase any investment typeasset. such as stocks or buildings.and amortize the cost.
There apparently is a distinctionbetween carving out a life estatefrom an existing asset and purchasing a life estate (Manufacturer'sHanover Trust vs. Commissioner ofInternal Revenue. 431 F.2d 664(1970)).
Speaking of income tax. what are theincome tax consequences of a remainder interest sale?
In general. the seller of a remainder interest recognizes gain or lossby subtracting the proceeds of salefrom his or her OOsis. Under the income tax regulations. the seller'sbasis must be allocated betweenthe remainder interest and the lifeestate. Presumably the sameTreasury tables which are used tovalue the interest may be used to allocate OOsis.
If the property is sold subsequentto the sale of the remainder interest.the life tenant and the remainderman will recognize gain to the extent of the difference between theirrespective sales price according tothe Treasury tables mentionedaOOve and their adjusted basis.
Where the life tenant has thepawer of sale over OOth interests(the remainder and life estate) andthe proceeds must be accounted forand preserved for the remainderman. the gain on the remainderman's interest will be taxed as if itwere held in trust (Rev. Rul. 61-102.1961-1 C.B. 245).
Under other circumstances. theincome tax consequence to theremainderman can also get verycomplicated.
What about the income tax consequences on the death of the lifetenant?
The law appears to be unsettledin this regard. An argument can bemade that upan the death of the lifetenant the receipt of the property bythe remainderman results in therecognition of taxable income(Guthrie v. Cornmr. 42 BTA 696 (1940):Jones v. Commr. 40 TC 249 (1963)remanded for further proceedings.330 F.2d 302 (3rd Cir.. 1964) on remand. T.C.M. 1966-136).
One negative point to the remain-
Twenty years of prudent service tothe legal, judicial and financial communities
MISSING HEIRS?**WE FIND HEIRS
WORLDWIDEAT OUR OWN
EXPENSE
der sale is that the remaindermandoes not receive a stepped up basisin the property on the death 01 thelife tenant. This potential incometax cost should be estimated in determining the total potential savings in the use of a remainder sale.
Consider particularly bands. Thechildren could pay a substantial income tax when they mature. Sincethey have purchased only a remainder interest, the children's basis willbe very low.
In summary. let's just agree thatthe remainder sale has manyadvantages. among them possiblereduction of estate taxes by eliminating all or part 01 the transleror'sestate. thereby freezing appreciation 01 the translerred asset; possible income tax write-offs to the liletenant for amortization/depreciation; and the transfer of the propertyoutside of probate. There are still.however, unsettled issues and potential risks.
Waiter. two 01 the biggeststeaks in the house. please! And, sethim up a tab since "we split thefee. helped a friend and saved aclient." 0
"There are,however, unsettled
issues andpotential risks inremainder sales."
Editor's Note:George N. Plastiras and Philip
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January 1988lArkansas Lawyerl29
DISCIPLINARY ACTIONSSeptember to October
The Arkansas Supreme CourtCommittee on Professional Conduct from September to October1987. issued three letters of reprimand and six letters of caution. Itsuspended for one year the law license of Bob Scott of North LittleRock and accepted the surrenders oflicense from former federal JudgeHarry E. Claiborne of Las Vegas. anative of McRae. who was impeached and removed from office inOctober 1986 after being convictedof income tax evasion. and JepthaA. Evans of Booneville. The Committee took no action of a disciplinary nature on 80 informal complaints against attorneys and voted"no action warranted" on six formalcomplaints. In other business, SamSexton. of Fort Smith, in Septemberappealed to the Arkansas SupremeCourt the suspension of his law license by the Committee on August29, 1987. The action of the Committee was stayed pending the appeal.The stay will terminate at the end of30 days if an appeal is not perfected.
BOB SCOTTSuspension of License
Bob Scott. of North Little Rock. hadhis license suspended for one yearon September 2, 1987. by the Committee on Professional Conduct forviolation of Rule 8.4 of the ModelRules of Professional Conduct involving misconduct. Scott was hiredto handle post-conviction relief forthe complainant. He received a $500partial retainer on September 10.1984. to represent the complainantand an additional $2.(xx) on September 21. 1984. and $2.500 on June 5.1985. The complainant said Scott didno work on his behaU and acceptedan additional $2.500 six months after the statute of limitations hadrun.
HARRY E. CLAIBORNESurrender of License
Former federal Judge Harry E.
3D/Arkansas Lawyernanuary 1988
Claiborne of Las Vegas. formerly ofMcRae. voluntarily surrendered hislicense to the Committee on Professional Conduct in October. JudgeClaiborne was impeached and removed from office in October 1986after being convicted of income taxevasion. The conviction on incometax evasion constitutes a violationof Rule 8.4 of the Model Rules of Professional Conduct involving misconduct. The state AttorneyGeneral's Office. on behalf of theCommittee. filed a lawsuit in circuitcourt on December 31. 1986. to disbca Judge Claiborne.
JEPTHA A. EVANSSurrender of License
Jeptha A. Evans. of Booneville,voluntarily surrendered his licenseto the Committee on ProfessionalConduct in October. Evans stated inhis petition for surrender that due tohis advancing age and relatedhealth problems, he could not adequately continue in the practice oflaw. Evans received a letter of reprimand from the Committee last yearfor violation of Rule 1.8 of the ModelRules of Professional Conduct concerning conflict of interest.
GERALD W. CARLYLELetter of Reprimand
Gerald W. Carlyle, of Newport.was issued a letter of reprimand bythe Committee on Professional Conduct in September for violation ofRules 1.3. 1.4 and 8.4 of the ModelRules of Professional Conduct involving diligence. communicationand misconduct. Carlyle was hiredin September 1984 and paid $I(XX) topursue a judgment against a corporation and stockholder and to dissolve the corporation. Part of his feewas to hire co-counsel in PulaskiCounty. The complainants said cocounsel was never obtained. butCarlyle filed suit on their behalf inPulaski County Chancery Court inOctober 1984. After much delay. the
matter was non-suited and refiledin Pulaski County Circuit Courtin February 1986. By that time, thecorporation was closed and allassets had been auctioned off. Aftera hearing date was set, the complainants went to the Pulaski County Courthouse to meet Carlyle andfinalize and file the settlementdocuments. but Carlyle did not appear. He said he would handle thematter at a later time. In March 1987.the complainants picked up theirfile and hired another attorney.They learned that in November 1986.a judge had signed an "agreedorder" which dismissed the individual defendant from the suit andawarded a $15,000 judgmentagainst the corporation. The complainants said this violated expressinstructions to Carlyle.
RONALD D. HEUERTwo Letters of Reprimand
Ronald D. Heller. of Little Rock.was issued a letter of reprimand bythe Committee on Professional Conduct in September and October forviolations of Rules 1.3 and 3.2 of theModel Rules of Professional Conduct involving diligence and expediting litigation.
He was reprimanded by the Committee in September as the result ofa Per Curiam order of the ArkansasSupreme Court granting a "motionfor rule" on the Supreme Court clerk.Heller said it was his fault that therecord was not timely tendered forthe appellant. The matter was submitted to the Committee by theSupreme Court and processed as aformal complaint. The complaintwas received by Heller on July 2.1987. and. despite assurances fromhim that a response would be submitted. no response was received.
He was reprimanded in Octoberas the result of another Per Curiamorder from the Supreme Court. TheCourt said Heller had representedan appellant to appeal his criminalconvictions. Heller tendered the record to the clerk for filing more than
LEGAL BRIEf PRINTINGPARAGON Printing & Stationery Company has beenprinting briefs for over 35 years. Can we be of serviceto you?311 East Capitol Little Rock 375-1281
seven months alter the expirationdate and the clerk refused to file therecord. Several months later, Hellerfiled a Rule 37 petition in trial courtalleging ineffective assistance oftrial counsel. On October 21. 1985, ina hearing before the trial court, Heller said he liled a "motion for rule onthe clerk." On the basis of that representation, the trial court set an appeal bond and the appellant was released pending appeal. Nearlyeight months later, the state movedfor revocation of the appeal bond alleging that no "motion for rule" hadbeen filed. At a hearing, Heller conceded he had never filed the motion.The bond was revoked and Hellerwas found in contempt of court. Thecomplaint was sent to Heller on May12, 1987, and he did not respond.
PHIL BARTONTwo Letters of Caution
Phil Barton, of DeQueen, wasissued two lellers of caution by theCommittee on Professional Conduct in September for violations ofRules 1.3 and 3.2 of the Model Rulesof Professional Conduct involvingdiligence and expediting litigation.
In a Per Curiam order dated July29, 1987, the Arkansas Court ofAppeals denied Barton's "motion tofile a belated brief" in two cases. Inone case, the Court of Appeals saidBarton had failed to lile an appellant's brief which was due on May 2,1987. In a letter to the ArkansasSupreme Court clerk on June 8, 1987,Barton said he would tender thebrief in this case no later than June15, 1987. The brief was tendered onJune 16, 1987, and was found to beout of compliance with Rule 9(d) ofthe Rules of the Arkansas SupremeCourt and Court of Appeals. His motion to file the belated brief was denied.
In another case, the Court ofAppeals said that an appellant'sbrief was filed on December 26,1986, but was later determined notto be in compliance with Rule 9(d) ofthe Supreme Court and Court of Appeals. Barton was directed to lile asubstituted appellant's brief in compliance with Rule 9(d) by April 3,1987, but failed to do so. He told theCourt in a letter dated June 8, 1987,that he would tender the brief no later than June 15, 1987. The brief wastendered on June 16, 1987, alongwith a "motion to file a belated
brief." An inspection of the briefrevealed that it was not in compliance with Rule 9(d) and his motionwas denied.
STEPHEN CHOATELetter of Caution
Stephen Choate, of HeberSprings, was issued a letter of caution by the Committee on Professional Conduct in September for violation of Rule 1.12 of the ModelRules of Professional Conduct involving the requirements of formerjudges. The complainant stated thatshe was the plaintiff in a lawsuitfiled against Greers Ferry andheard by Choate in his capacity ascircuit judge. The defendant, thecity of Greers Ferry, was represented by City Attorney Darrell Graves.The complainant said that whenChoate left the bench, he resumedpractice in the same law firm inwhich Graves practiced. She saidthat at city council meetings,Choate made reference to work being done for the city by "his firm."She said further that Choate succeeded Graves as city attorney. Thecomplainant said that she hadobtained financial records whichshow that the legal fee for thepreparation of the Greers Ferry briefin the case she filed was paid toChoate with an indication "forO'Brien (the complainant) procedure case." She said that while sitting as judge, Choate participatedin the case, assisted in the preparation of the Greers Ferry brief andshared in the fee.
LINDSEY J• FAIRLEYLetter of Caution
Lindsey J. Fairley, of WestMemphis, a part-time federal magistrate, was issued a leller of caution by the Committee on Professional Conduct in September for violation of Rules 1.7 and 1.9 of theModel Rules of ProfessiOnal Conduct involving conflict of interest. Atitle insurance company said thatunder an agency cantract with
them, Fairley searched real estatetitle records and issued commitments for title insurance and title insurance policies. In this capacity,Fairley issued three owners' policies of title insurance. The policiesinsured against a mortgage held bythe Equitable Assurance Society.He later liled suit to foreclose andnamed the insureds as defendants.
DANIEL J. KROHALetter of Caution
Daniel J. Kroha, of Little Rock,was issued a letter of caution by theCommittee on Professional Conduct in September for violation ofRules 1.3 and 1.4 of the Model Rulesof Professional Conduct involvingdiligence and communication.Kroha represented the complainantin a divorce. He gave the complainant numerous excuses over a 16month period as to why the case hadnot come to trial. The complainantsaid she attempted to contact Krohanumerous times, leaving messageson his answering machine, but thecalls were not returned. Kroha alsofailed to appear at a scheduledcourt .hearing.
GENE O'DANIELLetter of Caution
Gene ODaniel. of Little Rock, wasissued a letter of caution by theCommittee on Professional Conduct in September for violation ofRules 1.3 and 1.4 of the Model Rulesof Professional Conduct involvingdiligence and communication.O'Daniel was paid $60.20 to file andservice a lawsuit for the complainant. The check was endorsed andcashed by O'Daniel. The complainant did not hear from O'Daniel forseveral months and contacted himnear the end of March 1987. She saidO'Daniel told her he'd been unableto file suit for her because of ahealth problem, but assured her thestatute had not run. The complainant had no further contact withO'Daniel. 0
January ISB8/Arkansas Lawyer/31
IN MEMORIAM
Timothy D. Brewer
Timothy D. Brewer, aged 30, of Little Rock, died Tuesday, November10, 1987.
Brewer had been a partner in theHouse, Wallace and Jewell law firmsince September and was a memberof the firm's corporate law section.He joined the firm in 1985 after working three years as in-house counselfor Southwestern Bell TelephoneCompany.
Brewer received his juris doctorate in 1982 from the University of AIkansas at Little Rock School of Law,was survey editor of the UALRLaw Journal and a member of theJournal's Review Committee. He received a bachelor's degree in artsfrom the University of Central Arkansas at Conway in 1979 and wasnamed outstanding general business administration graduate.
He was treasurer of the Board ofDirectors of the Pulaski CountyChapter of the American Red Crossand chair of the Red Cross BloodServices Committee. He had alsodone volunteer work for the UnitedWay of Pulaski County and the AIkansas Arthritis Foundation, heading and organizing several of the
321Arkansas Lawyer/January 1988
Foundation's benefits.Brewer was an "outstanding
member" of the Phi Delta Phi lawfraternity and a member of the ethics committee of the University ofAIkansas for Medical Sciences.
Brewer was born at Lebanon,Tenn., the son of Elwyn and MadeneSowell Brewer, who now reside inEnola (Faulkner County). He was agraduate of Enola High School.
He was a member of the AIkansasBar Association since 1981 and hadserved on its AIkansas Statute Revision, Anti-Trust and Trade Regulations, State and Federal Securitiesand Public Information Committees.
Brewer was a member of TrinityUnited Methodist Church. He was amember of the Church's financecommittee and president of theGood News Sunday School class.
Survivors are his wife, Stacy SellsBrewer of Little Rock; a daughter,Allyson Elizabeth Brewer of LittleRock; his parents, Elwyn andMadene Sowell Brewer of Enola;two brothers, Gary Brewer of Enolaand Doyne Brewer of Greenbrier;and a grandmother, Ethel Brewer ofConway.
A scholarship fund has been established for his infant daughter,Allyson Elizabeth. Contributions tothe scholarship fund should be directed to the trust department ofFirst Commercial Bank. Checksshould be made payable to the Allyson Elizabeth Brewer ScholarshipFund. For more information concerning the fund, contact the House,Wallace and Jewell firm, 3800 Capitol Towers, Little Rock. AR 72201, orphone 375-9151.
Jack Daily
Jack Daily, age 75, of Fort Smith,died Sunday, October 18, 1987.
Daily was a graduate of the University of Arkansas and attendedStanford University and the University of Michigan.
He was a 33-year member of the
Arkansas Bar Association and amember of the Sebastian CountyBar Association and the AmericanBar Association.
Daily was a past president of theNoon Civic Club and a member ofKappa Sigma Fraternity.
He was a member of S1. Bartholomew's Episcopal Church.
Survivors are his wife, IsabelleDaily of Fort Smith; two sons,Thomas A. Daily of Fort Smith andHarry Pete Daily of Englewood,Colo.; a sister, Jane Tennant of FortSmith; and seven grandchildren.
William H. Drew. Sr.
William H. Drew, Sr., age 67, ofLake Village, died Sunday, November 8, 1987.
Drew, a retired AImy Reserve major, was a Mason and a World War IINavy veteran.
He was a 35-year member of theAIkansas Bar Association and wasa former member of its ContinuingLegal Education and ProfessionalEthics and Grievances Committees.Drew was also a member of theAmerican Bar Association and theAmerican Legion.
Drew was an Episcopalian.Survivors are his wife, Mary
Kosearas Drew of Lake Village; twosons, William Howard Drew, Jr.,and George Stuart Drew of Lake Village; a daughter, Katharyn Christine Drew of Pine Bluff; a brother,Stuart Drew of Jackson, Miss.; a sister, Katharyn Lott of Hot Springs;and five grandchildren.
Thomas D. Wynne. Jr.
Thomas D. Wynne, Jr., age 71, ofFordyce, died Tuesday, September29, 1987.
Wynne was the senior partner inthe Wynne, Wynne and Wynne lawfirm.
He had been a practicing attorneyin Fordyce since 1953. He was a for-
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mer mayor of Fordyce and a formermunicipal judge and deputy prosecuting attorney.
Born December 30. 1915. he wasthe son of the late Thomas DuncanWynne. Sr.. and Agnes Gill Wynne.
Wynne was a graduate of the University of Arkansas. where he received his law and undergraduatedegrees. He was also a graduate ofFordyce High School.
Wynne was a veteran of WorldWar II and was awarded the U.S. AirForce Silver Star. two DistinguishedFlying Crosses. six Air Medals anda Purple Heart.
He was past president of the Fordyce Chamber of Commerce. pastvice president of the ArkansasMunicipal League. former state liaison officer from Arkansas to theU.S. Air Force Academy and a former member of the Fordyce RotaryClub.
He was a 34-year member of theArkansas Bar Association.
Wynne was a past member of theboard of directors of the ArkansasState Golf Association and wasamong the top golfers in the state inhis youth. He was a longtime football official and was a lifetimemember of the Arkansas FootballOfficials Association.
He was a member of the First United Methodist Church. past chair ofits Board of Trustees and a memberof its Administrative Board.
Survivors are his wife. MargaretWest Wynne of Fordyce; three sons.Tom Duncan Wynne III and RobinFrench Wynne of Fordyce and TenyFrank Wynne of Pine Bluff; onedaughter. Mary West Wynne Roarkof Fordyce; four brothers. Hal GillWynne of Arlington. Va .. RobertDouglas Wynne of New Orleans.La.. and Dr. George French Wynneof Warren; two sisters. AnnetteWynne Shipman of Scottsdale. As..and Agnes Wynne Phillips of LittleRock; and eight grandchildren. 0
January 1988/Arkansas Lawyer/33
Arkansas IOLTA Program
Funds Increasing"Geometrically"
'mnwitiottFor more than 50 years, the attorneys of Arkansas and neighboring stateshave relied on Trevathan for excellence in the printing of briefs.
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state. Second, to ease many lawyers' minds, the degree of difficultyin joining IOLTA is minimal. All youbave to do is sign the form, send it tothe Foundation's office and post inyour office the required notice toclients about your participation inthe program. We recruit the bonksand they convert the accounts andsend in the interest. Third, there isstill some confusion over the required method to notify clients. Yousimply post a notice which we provide.
Lawyers occasionally ask questions concerning whicb fundsshould be deposited in the clienttrust account and whicb fundsshould be invested for a particularclient. Three factors should be con-
By Susanne Roberts
The Arkansas IOLTA Foundation,Inc., continues its enrollment of attorneys and financial institutions inthe Interest on Lawyers' Trust Accounts (I0LTA) program. I want tothank you for your cordial receptionduring my visits to law officesthroughout the state. It's truly beena pleasure to visit with those of youon the "front lines."
Some issues concerning IOLTAare repeatedly raised. First. manyof you, though well intentioned,have been putting off signing ourenrollment form and sending it in. Ifyou've received the form but baven'tyet signed up, please do so. It's dillicult to call on every lawyer in the
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Grants to be Announced in AprilThe funds collected by the Foun
dation have been increasing almostgeometrically since we started.From January to October 1987, wecollected $113,231.25. Currently, weare collecting about $150,000 peryear in interest income from trustaccounts. We are now receiving applications for grants which will beapproved this spring. The closingdate for these applications is February I, 1988. The grant recipients willbe announced on April I, 1988.
34/Arkansas Lawyer/January 1988
IOLTA
ATTORNEY HONOR ROLL
To lam TTlOr1' ~hout tlx ConniWl.ion writr: Coro· mnnitlltion. 'vY.uhi"!jl.Ol'l. D.C. !o;>Sqq. The Commil' l ~
.>on on the Biu:T1term~1 of~ ll.S. Connitution.
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LAKE CITYWoodruff & Huckaby
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& HaleKathryn P. EisenkramerLaser, Sharp & MayesMadden. Huddle & JohnsonRobert McHenry
PINEBLUFFDickey Law Firm
Guly 16. 1987 to October 15. 1987)
Bill D. EtterMartha P. GilpatrickMichael R. GottHugh W. HarrisonHoward & HowardMcDaniel & WellsRees Law FirmSeay & Bristow
CAMDENEdwin KeatonDavid McMahen
ARKADELPHIASteve DeMottWright. Chaney & Berry
FAYETTEVILLERaymond C. Smith
ELDORADOJames B. BennettRonald L. Griggs Law OfficesLanders & ShepherdDenver L. Thornton
HOT SPRINGSFrances M. FinleyByron Cole Rhodes
HOPEGraves & Graves
FORTSMITHOrville C. Clift
Guly 16, 1987 to October 15, 1987)
FINANCIAL INSTITUTION HONOR ROLL
JONESBOROAnthony W. BartelsWarren E. Dupwe
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Financial institutions denoted by adouble asterisk have expresslywaived all charges for IOLTA accounts. and institutions denoted bya single asterisk have to date remitted interest to the Foundation without deducting a fee.
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JUDICIAL DEPARTMENTREPORT
Judicial ProductivityIs Improving
Suite 501, Continental Building100 Main St., Little Rock, Ark.
1-501-375-1439
A composite picture of performance within the judicial branchcan be obtained by reviewing threeother indicators. The quantity of litigation can be shown from the number of filings. The ability of the judicial system to adjudicate those filings may be measured by the number of terminations. Finally. the"backlog" can be shown by the number of active cases pending at theend of a given fiscal year.
Tbe line chart which appears onthis page provides the opportunityto observe our recent experience ineach of these areas.
Not surprisingly. filings have continued to increase. yet that rate ofincrease has been somewhat suppressed in recent years. Terminations over the period have also increased. However. the rate of increase has not quite been sufficientto absorb the increased rate of filings. yet the gap is closing. Conse-
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every 100 cases filed, 97 cases werebrought to a conclusion.
By R. Christopher Thomas
In recent years, this departmenthas encouraged the acquisition anduse of computers to aid our circuit,chancery and probate judges in themanagement of their dockets. In addition, many judges have obtainedthe support of case coordinators,and other court related personnel.such as law clerks. Further. thereappears to be an increased interestin the subject of docket management among the various jurisdictions. Therefore. it seems appropriate to investigate whether thesedevelopments have had any measurable impact upon the processingof cases.
Although the fundamental purpose of our data acquisition effort isto provide case management information for individual judges, otherbenefits accrue from this rathersubstantial collection of data. Onesuch benefit is the compilation ofstatewide information on the statusof the court system in general. Forexample, statistics provided by thisdepartment are utilized by the Judicial Reapportionment Board in theiranalysis of requests for additionaljudges. On a more general note. ourdata can, from time to time, tell usabout the overall health of our judicial system.
One basic measure of activitywithin the judicial branch is the disposition rate, which is a comparison of the number of cases terminated to the number of cases filed. Thisindicator tells whether existing judicial resources are coping withcases as they are filed. Three yearsago, in fiscal year 1983-84. the disposition rate was 92"10. In our most recent fiscal year. 1986-87, this disposition rate had improved markedlyto 97%. Thus. last fiscal year, for
36/Arkansas Lawyer/January 1988
..'
_-••••---••PENDING END
60000
SOOOO
4CXXXl<-=:-:-~::;-~::---=::;83184 84!85 85186 8&87
FISCAL YEAR
January 1988/Arkansas Lawyer/37
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able to assume that the recent tendency of general jurisdiction judgesto make use of case coordinatorsand computerization will continue.Third, at least insofar as circuitcourt is concerned, the transfer ofsome civil litigation to municipalcourts will have a beneficial effect.Fourth, interest remains high inobtaining adequate support resources for our general jurisdictionjudges and state funding for thatsupport will continue to be sought.
For the present, the court systemisn't losing any appreciable groundin the never. ending battle with increased filings, yet it isn't gainingany ground either. Perhaps the recent developments outlined abovewill favorably affect that stalemate.
©Est. in 1967
the addition to the "backlog" hasbeen proportionately less each ofthe last two years. The result is acontinuing, almost imperceptible,upward movement in the number ofcases which our courts are unableto handle each year.
There are a number of factors thatmay serve to arrest the creeping increase in "backlog" and perhapsreverse the trend. First, five addi·tional judges will take the bench inthe near future. Second, it is reason-
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quently, the number of cases pending has continued to increase, yet ata slightly lower rate of increase.
Two modest conclusions may bedrawn from the analysis. First, ourgeneral jurisdiction courts, for thepresent. are almost managing theinventory of new cases with whichthey are burdened each year. Second, while the disposition rateremains high, each year sees asmall number of cases added to the"pending end" measure. However,
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EXECUTIVE DIRECTOR'S PAGE
Meetings...Meetings. II
By William A. Martin
"To maintain the requisite knowledge and slrill, a lawyer should engage in continuing study and education."Comment, Rule 1.1.Model Rules of Professional Conduct
"Another bar association meeting!" Does that announcement create happy images and eager anticipation or do you think, 'Tm not interested and won't go?" I believe thoseof you not attending bar associationmeetings are missing somethinggood - something both educational and fun.
In our serious moments, we knowlaw grows and changes so fast that,at best. we can only keep up with asmall part. We need to know notonly what the law is, but what it islikely to be the next time an appellate court rules on an issue. Continuing legal education programsprovide additional sources of inlormation to draw from in our effort tomeet ethical requirements. Andwith the coming of mandatory CLE,we have a specific, measurable obligation to attend educational programs.
to encourage cordialrelations among lawyers:'Article I. Arkansas BarAssociation Constitution
Lawyers represent clients withzeal and are opposed by otherlawyers representing their clients'interests with equal zeal. To limitconflicts to the courtroom and thenegotiating table, lawyers need theneutral ground provided by organized social functions and bar association meetings.
38/Arkonsas LawyerlJanuary 1988
The burden of handling otherpeoples' problems and the timerestraints that go with the practiceof law create stress that cries out forrelief. Bar association meetings,with their non-adversarial settings,provide a welcome change of pace- a mini vacation - while makingproductive use of the lawyer's time.
Whether it's a local bar association luncheon, dinner or social houror the American Bar Association'sannual meeting, lawyers benefittremendously from attending meet·ings with other lawyers. Our Arkan·sas Bar Association and ArkansasInstitute for Continuing Legal Education (AICLE) meetings and programs provide wonderful opportunities for learning and renewingand reinforcing friendships withother lawyers and their families.Some of our upcoming attractionsinclude:
• The Mid-Year Meeting on January 22and 23, 1988, featuring "Racehorse"Haynes and presentations on Arkansas
court decisions, family. criminal andreal estate law. taxation. ethics. thenew Corporation System and the new Arkansas Code. In addition, the traditional reception 01 the Arkansas Law Center, the Arkansas Bar Founda1ion dinnerand meetings of Association committees and the House of Delega1es providebusiness and social activities for everyone.
• The Natural Resources Law Instituteon February 2S to 27, 1988, brings lawyersand landmen together in Hot Springs forprograms on oil and gas and a day atOaklown Park.
• The dynamic Irving Younger. nationally recognized for his speeches onlitigation tactics, will speak March 11.1988, on jury selection and discovery at aseminar sponsored by AlCLE.
• The always important Federal Practice Inslilute on March 10. 1988, will leature the insights 01 federal judges andlawyers on successlully handling federal cases.
• The Workers' Compensation Law Institute on April IS. 1988, a1tracts many insurance and labor representatives withwhom lawyers work in handling casesfor injured workers and their employers.
• The popular Tax Awareness Seminar on May 6. 1988. helps keep the lawyerwho is not a tax expert up-to-date on howtax changes oifecl the practice of low.
• The Arkansas Bar Associa1ion's Annual Meeting on June 8-11. 1988, in HotSprings, will be held in conjunction withthe Arkansas Judicial Council. Your Ic>cal courts should be closed and theirjudges present at this joint meeting.Highlights include the introduction ofthe newly revised Arkansas Form Book.the ever popular Gridiron presentationby the Pulaski County Bar Associa1ion. adinner/dance with lillie Joe and the BK'sand receptions, sports events. lawschool alumni luncheons and numerousmeetings 01 our committees and affili·ated organizations.
Take a look at these meetings andCLE offerings. If you haven't beenattending, give us a try. You'll likewhat you discover! D
YOUNG LAWYERS' UPDATE
"Leadership"
By Michael H. Crawford
Webster's Dictionary defines"lead" in part as: "I. To guide; 2. Tobe ahead; 3. To make the beginningplay; 4. The winning position; 5. Amargin of advantage." All too oftenwe confuse the word "leadership"with such words as "president:'"chairman" or "boss." These wordsrefer to people who. though oftenleaders, seldom provide the truestrength of leadership. It is themembers of the organization whoprovide "the winning position" or "amargin of advantage."
The Young Lawyers' Section, despite its numerous successful projects. has failed miserably at leadership. Although one in threereaders of this article (more than1.500 lawyers) are members of theYLS. most are simply unaware of thebenefits of membership. We shamefully boast only a handful (approximately two dozen, at best) ofmembers who participate in theSection. Our leadership is lacking.
The first step in taking the lead isto recognize the path. The path tothe "winning position" necessarilyincludes contributions to the profession of law. The true leaders arethose who recognize the value ofteam play. When the few join themany, suddenly they find unlimitedopportunities, like the opportunityto help the poor and disadvantagedthrough pro bono representationand the chance to meet other experienced attorneys. Increasing job satisfaction and sharing good timeswith fellow attorneys through theYLS are but a few of the membershipbenefits.
As young lawyers. we are the future leaders of the law profession.Find out what the YLS can offer youby calling or writing me concerning
those committees and projectswhich need your help. Be informed!Be a leader!
The YLS is pleased to take thelead by providing:
• The Trial Practice Seminar onMarch 25 and 26, 1988. at the HotSprings Sheraton. The seminaroffers sessions on Friday and Saturday and afternoon excitement atOaklawn Park. A bulfet lunch in theArkansas Room at Oaklawn Parkwill be held Friday. Seating in theterrace, which offers a great view ofthe finish line, is reserved. Call theArkansas Bar Association at375-4605 or 800-482-9406 to register.Space is limited.
• The Statute of Limitations Handbook is currently being updated bythe YLS to premiere at the Association's annual meeting in June. Contact Joseph Calhoun at 376-3800 tooffer your assistance.
• The HighSchool Mock Trial
Competition co-sponsored by theYLS will begin in April. This year'stopic is AIDS discrimination in theworkplace. Coaches, judges and organizers are needed. Call SusanneRoberts at 37&-180I to offer your assistance or call your local highschool to encourage their participation in the competition.
• The Young Lawyers' Newsletteris being organized by EdwardBoyce. Your assistance is needed tocontribute helpful articles and humorous stories. Send your ideas tohim at P.O. Box 948, Newport. AR72112 or call 523-5242.
• The Practice Skills Course willprovide bosic nuts and bolts information about law practice. GregJones, in collaboration with the Arkansas Institute for ContinuingLegal Education (AlCLE), is planning a training course which will beprovided free to all speakers. Ifyou'd like to volunteer to organizethe program or speak at the seminar, call Greg at 371-0808.
• District representatives of YLSwill undertake this year to locateand activate young lawyersthroughout Arkansas as part of aLeadership Outreach effort. If you'reready to become involved or justwant to meet some successfulyoung lawyers, give your districtrepresentative a call. The representatives are:
Northwest - Robert Ridgeway. Jr..321-1931
Northeast - Chris Paul. 932-6694Central - Greg Jones. 371-0808Southern - Michael Dennis. 534-5532Won't you become involved in the
YLS and become a leader? A wiseman once said, "There go the people. I must hurry and catch up withthem for I am their leader:' It is timefor you to catch up with the YoungLawyers' Section. 0
January 198a/Arkansas Lawyer/39
AFTER THE DECLARATIONOF INDEPENDENCE
OUR FOUNDING FATHERSWROTE SOMETHING
EVEN MORE IMPORTANl:Ten years after the signing ofthe Declaration of Independence
our founding fathers created what historians have called the greatest singledocument struck off by the hand and mind ofman.
Our founding fathers created the Constitution ofthe United States.For the first time in history. power was granted by the people to the
govemment. and not by the government to the people.The freedom unleashed by the Constitution allowed Americans
to develop their talents and abilities to the fullest. And attain what is nowknown the world over as the American Dream.
As we commemorate the Bicentennial of the Constitution, there isno better way for you as an American to reaffirm the principles for whichour country stands than to learn more about the Constitution.
The words we live by.
THE CONSTITUTIONThe words we live by
To learn more about the Constitution write: Constitution, Washington. D.C. 20599. The Commission on the Bicentennial ofThe: U.S. Constitution.~40/Arkansas Lawyer/January 1988 .
IN-HOUSE NEWSLAW SCHOOLS, A.I. C.L.E. AND HOUSE OF DELEGATES
UNIVERSITYOFARKANSASSCHOOLOF LAW,FAYETTEVILLE
By J. w. Looney
Lonnie Beard has anarticle in the Agricultural Law Update entitled"Consequences of Electing to Make the UniformCapitalization Rules Inapplicable to CattleHeld for Breeding andDairy Purposes.
Janet Flaccus article"Taxes, Farmers andBankruptcy and the 1986Tax Changes: Much hasChanged, But Much Remains the Same" appeared in the NebraskaLaw Review. Flaccusserved as co-chair forthe "Fundamentals ofBankruptcy" seminarssponsored by AICLE inFayetteville and LittleRock; spoke at the program on "Special BankProblems: Setoffs, PostPetition Credit andLender Liability" andspoke at the 1987 Heartland Labor and Employment Law Institute on"Recent EmploymentLaw Developments inArkansas and Oklahoma."
Rob Leflar's article"Compensation for WorkRelated Illness inArkansas" has been accepted for publication in
the Arkansas LawReview.
Wylie Davis chairedthe Multistate Bar ExamCommittee on Contractsat its fall meeting inNiagara Falls. N.Y. Hewas a special lecturerfor the University of Arkansas Museum Series.His lecture "Birth andGrowth of the UnitedStates" was in observance of the Bicentennial of the U.S. Constitution.
Robert A. Lenar continues a full teachingload with the law schoolin torts and conflicts.
Bob Laurence's article"Abuse of Discretion inthe Denial of Sua SponteMotions to DismissUnder II U.S.C. § 707(b):In re Love, Poetic Justiceand the Other Blackbird" appears in the Annual Survey of BankruptcyLaw.
Mary Beth Matthewsserved as co-chair of theFall Legal Institute Program on "Organizingand Advising ArkansasBusinesses.
Lou Lindsey was oneof 3S law librariansselected to participatein a research conferencesponsored by Mead Data Central on "EffectiveTeaching of Legal Research in an Online Environment."
Charles Carnes andWarren E. Banks had anarticle entitled "ShareValuation - A Chancefor Financial Literacy"published in the California Western Law Review. The article hasbeen selected for re-
printing in the Corporate Practice Commentator which is edited byProfessor F. HodgeO'Neal. a leading scholar on corporate law.
Rod Smolla's "A LittleSouth of the Law" appears in the October1987 Southern Magazine.Smolla chaired a paneldiscussion on the constitutional aspects of thecrises at Central High ata symposium in Fayetteville.
Ray Guzman has beenappointed to the Governor's Commission onProbation, Parole andSentencing.
John Watkins spoke tothe City Attorneys Association in Hot Springs onrecent developments inFreedom of Information;to the Arkansas Municipal League annualmeeting in Fort Smith on1987 FOIA amendments;to the Sixth District TrialPractice Seminar in Little Rock on recentchanges in Arkansasrules of civil procedure;and to the Media LawSeminar in Little Rockon confidential sources.
Jake Looney spoke atthe National Institute onCooperative Educationin St. Louis on cooperative director liability;served as educationleader for a legal studytour of the Soviet Union;spoke at the annualmeeting of the American Embryo Transfer Association in Orlando;and spoke to the Arkansas Horticultural Association annual meetingin Fort Smith on the new
immigration law's effecton agriculture.
NEW LIBRARIAN HIREDMarcia Baker, former
ly of the University ofTexas Law Library, hasjoined the staff of theYoung Law Library asassistant librarian incharge of circulation!reference.
STUDENT ACTMTIESJere Diersing, who
graduated last May,won second prize in theNathan Burkan Memorial Competition for anessay entitled "The Useof the Defense of 'Unclean Hands' to Copyright Infringement Action."
Karen Callahan wasawarded special recognition for her entry in theEighth Circuit essaycompetition on papersrelated to the Bicentennial of the U.S. Constitution.
Lucy A. Wiggins, whocompleted the LL.M. degree last May, has an article in the Journal of Agricultural Cooperativeon "Cooperatives, Securities Violations, andAdvisor Liabilities; ACase Study."
ABA-LSD membershipat the U of A School ofLaw, Fayetteville leadsthe circuit with membership in excess of 94 percent.
MEMORIAL TOJOHN A. BUNCH
During the remodeling and expansion project. the Law School hada grill built in the court-
January 19BB/Arkansas Lawyer/41
yard. The grill may beused by student groups.The Christian LegalSociety will shortlyplace a plaque on thegrill, dedicating it to thememory of John A.Bunch, Class of 1985.
Before graduatingfrom Elkins High SchooLBunch set a nationalhigh school record,which still stands, forrushing 608 yards in asingle game. He playedfootball at Dartmouthbefore transferring toand graduating from Arkansas. It was whileworking in banking thatcancer was first diagnosed. He entered lawschool in September1982. Despite his illness,which had resulted inthe amputation of ahand, he was an activemember of the cookoutcrew, when the Christian Legal Society initiated its cookouts thatsemester. Despite several operations, he persevered and completedhis degree requirements. On his death inNovember 1984, he wassurvived by his wife,Aleta, and his six monthold son, Joel.
Grant Hall of theNorthwest ArkansasTimes wrote: "He was arecord-setting athlete,but he will be remembered more for the inspiring way he lived hislife in the face of a prolonged series of physical setbacks. He foughtto the end." Wally Hall ofthe Arkansas Democratwrote: "He left this earthwithout a complaint,only a prayer to God forhis blessings." His courage, his commitmentand his compassion provided an example and amodel to the Law Schoolcommunity. 0
UNIVERSITYOFARKANSASAT UITLEROCKSCHOOL OFLAW
By Paula Casey
Lawrence M. Friedman, the Marion RiceKirkwood Professor ofLaw at Stanford University, delivered a lecture,"The American Constitution: A Double Life,"on October L 1987. Thelecture was the sixteenth in a series sponsoredby the Ben J. AltheimerFoundation.
The Law School hosted a lecture by ThomasF. Eagleton on October30. Eagleton, the Democratic nominee for vicepresident in 1972, discussed the United StatesConstitution in the finallecture of a series called"The Future of the American Constitution."
Dean Lawrence H.Averill attended a meeting in Philadelphia as amember of the Consultive Group of the Restatement on the LawGoverning Lawyers.
Professor EugeneMullins gave a presentation to the Conferenceof State Prosecutors onthe 1987 Arkansas Codeon October 22 in NorthLittle Rock.
Visiting ProfessorGriffin J. Stockley discussed small claims procedures with the Central Arkansas MunicipalClerks Association at ameeting on October 30in Little Rock.
On October 2, Professors Philip Oliver andJohn DiPippa debated
the nomination of JudgeRobert Bark to the U.S.Supreme Court. The debate, sponsored by theAgora Forum, was heldat the University of Central Arkansas.
Professor Oliver's article "Time to Retire LifeTenure" was publishedin the Wall Street Journalon September 18.
Professor Robert R.Wright was a delegateto the United States/China Joint Session onTrade, Investment andEconomic Law at Beijing, People's Republicof China, in August1987. American lawyersmet jointly with theirChinese counterparts todiscuss changes in thelaw which would promote trade between thetwo countries. AttorneyGeneral Edwin Meesechaired the UnitedStates delegation andthe Chinese Minister ofJustice chaired theChinese delegation.Professor Wright alsoattended the Fall Council and Officers Meetingof the Section of GeneralPractice of the AmericanBar Association in PalmSprings, California, inOctober. He is chair ofthe Arkansas Form BookEditorial Board.
Associate Dean ScottStafford attended a SiteEvaluation OrientationWorkshop sponsored bythe American Bar Association at the IndianaUniversity-Purdue University at the Indianapolis Conference Center inSeptember.
Associate Dean PaulaCasey participated in aworkshop for the development of professionalskills courses sponsoredby the American Bar Association at the Universi ty of New MexicoSchool of Law in Albuquerque in October.Jean Probasco, director
of Admissions, andCasey attended the annual meeting of theSouthwest Associationof Prelaw Advisors inNew Orleans, Louisiana, in September.
Professor Frances Fendler was co-chair of theArkansas Institute forContinuing Legal Education's (AICLE) FallLegal Institute in FortSmith in October. Professor Glenn Pasvogelwas co-chair and speaker for "Fundamentals ofBankruptcy" seminarssponsored by AICLE andheld in Little Rock andFayetteville in September.
Professor John Pagangave a talk to the LittleRock Civitan Club aboutthe role of the quorumcourt in county government.
STUDENT NEWSWilliam Cash, Jon
Taylor, Tricia Eablesand Jana Brown attended a joint meeting of theEighth and Tenth Circuits of the AmericanBar Association/LawStudent Division in Kansas City in September.Patti Leuken, governorof the Tenth Circuit for1987-88, also attended.Eables received an ABA!LSD Certificate of Merit.
Cash and Taylor attended the AmericanBar Association's Annual Meeting in San Francisco in August as voting delegates for theLaw School. A resolution sponsored by LawSchool students dealingwith alternative testingdates for law studentswas approved by theABAILSD assembly.
Mariam Miller Hopkins and Frank Areycompeted in a regionalmoot court competitionat the University ofTulsa. 0
421Arkansas Lawyerl/anuary 1988
A.I.e.L.E.NEWS
By Rae Jean McCall
During the past year,the Arkansas Institutefor Continuing Legal Education offered morethan 30 seminars andteleconferences for Arkansas attorneys, Theactive involvement ofboard members, program committee members and faculty in providing input on futureprogramming is invaluable, However, the "unsung" heroes are thoseattorneys who calLwrite or personally mention to AlCLE staff theirrequests for future programs and their suggestions for improving ourCLE efforts.
This is definitely ayear 01 growth forAlCLE. With mandatoryCLE and increased legalspecialization on the horizon, AlCLE is expanding the type and kind ofCLE offerings to benefita broader cross-sectionof the bar. The first stepwas the development ofa framework for planning. A comprehensivecurriculum approach toprogram planning wasinitiated during the pastyear. This plan establishes a network of practice area advisorycommittees to identifypotential seminarsbased upon types oflegal tasks customarilyperformed and the levels of competence required to carry them out.The goal is to providecourses enabling thepractitioner to "acquire"new skills, techniquesand knowledge and tomake it possible for alawyer to maintain andimprove existing skills,techniques and knowledge.
Next, five practicearea advisory committees were appointed toplan program selectionand content, identifyand recruit faculty,monitor course qualityand plan the cycle ofcourses in the practicearea. The initial advisory committees and theirrespective chairs are:
Family LawlDomesticRelations - N. DalePrice, Little Rock
Estate Planning/Probate - William D.Haught. Little Rock
Commercial Law/Bankruptcy - Richard L.Ramsay, Pine Bluff
Taxation - ByronEiseman, Little Rock
Litigation - David H.Blair, Batesville
Comments and suggestions about potentialCLE programs in theseareas may be directed tothe respective chair or tothe AlCLE staff.
In addition to practicearea advisory committees, the AlCLE Board ofDirectors annuallyelects a program committee with the primaryresponsibility of planning a master calendarof CLE program offerings. This year's committee, chaired byDavid M. "Mac" Gloverof Malvern, consists ofAssistant Dean DavidMalone of the Universityof Arkansas School ofLaw, Fayetteville;Professor D. FentonAdams of the UALRSchool of Law; J. ThomasRay of Little Rock; andDavid R. Matthews ofLowell.
Kudos for PreviousPrograms
Special thanks aredue the program chairsfor their efforts in planning and organizing1987 CLE programs.Rosalind R. McClanahan of Pine Bluff and
Gregory T. Jones of LittleRock did an outstandingjob in planning the"Bridging-the-Gap" 1987Practice Skills Course.Professors Glenn Pasvogel of the UALRSchool of Law and JanetFlaccus of U of A Schoolof Law, Fayetteville organized the Fundamentals of Bankruptcy Program. Attended by morethan 180 persons, thisprogram was a tremendous success. The FallLegal Institute, "Organizing and Advising Arkansas Businesses.was chaired by MaryBeth Matthews, assistant professor at the U ofA School of Law, Fayetteville, and FrancesFendler, assistantprofessor at the UALRSchool of Law. This program was well-receivedby those in attendance.
Preview of UpcomingPrograms
• Hosted by AICLE,the 1988 Mid·Year Meet·ing of the Arkansas BarAssociation will feature"Recent Developmentsin the Law." The fea·tured speaker will beRichard L. "Racehorse"Haynes, a noted triallawyer from Houston,Texas. In addition to anin·depth analysis of recen t decisions in substantive areas, therewill be a overview of thenew Arkansas Corpora.tion System and the 1987Arkansas Code. Themeeting will be held inthe Ballroom of the Excelsior Hotel on January22, 1988. Make plansnow to attend!
• March II is the dateto save for a CLE experi·ence like no other. Irv·ing Younger will present"Jury Selection" and"Discovery" in two halfday seminars at the Lit·tIe Rock Holiday InnWest. Irving Younger is
the most dynamic andentertaining CLE lectur·er in the country. Hisunique perspective as aformer prosecutor.judge, law professorand active litigator coupled with his excep·tional talent as aspeaker - insures thatthis program will be informative and valuableto your practice. D
ARKANSASBARASSOCIATIONHOUSE OFDELEGATESMEETINGOctober 24, 1987
The Arkansas BarAssociation's House ofDelegates met on October 24, 1987, at the Fay·etteville Hilton. Presi·dent John F. Stroud, Jr..presided.
Sandra Wilson Cher·ry, the Association'ssecretary-treasurer. certified Bryan J. Reis asthe new delegate fromDistrict 23. He fills theterm of Michael H.Crawford who waselected chair of theYoung Lawyers' Section.
The House approvedthe minutes of its June13, 1987, meeting aspresented and an un·audited financialstatement dated Sep·tember 30, 1987.
MEMBERSHIPREPORT
Philip E. Dixon, chairof the Membership Committee, reported that theAssociation's membership has increased by 78members. The Houseapproved the new memobers and applicationsfor reinstatements and
January 1988/Arkansas Lawyer/43
retired status. Dixonurged each delegate tocontact at least six delinquent members.
LEGISLATION
Martha Miller, theAssociation's lobbyist,outlined the efforts ofthe Code of Ethics Commission to create a codeof ethics and moved thatthe House adopt a legislative policy on ethicsreform. The motion wasseconded and passed.
Vincent W. Foster, Jr.,chair of both the Executive Council and theLegislative OversightCommittee, addressedthe provisions of a proposed bylaws changeconcerning the Legislation Committee and theLegislative OversightCommittee and movedfor its adoption. The motion was seconded andpassed.
JUDICIALCOMPENSATION
AMENDMENT
President Stroud reported on behalf ofDennis L. Shackleford,chair of the JudicialCompensation and Disability Committee. Petitions are to be circulated in each Bar Districtto obtain signatures inorder to place the Judicial CompensationAmendment on the November 1988 ballot as aninitiated act. Copies ofthe petition are available at the Arkansas BarCenter.
OTHERBUSINESS
W. Russell Meeks, m.chair of the MandatoryCLE Committee, reported that the Arkansas Supreme Court has beenrepetitioned on mandatory CLE. A decision is
44/Arkansas Lawyer/january 1988
expected by Thanksgiving.
Dr. Rae Jean McCall.executive director of theArkansas Institute forContinuing Legal Education (AICLE), presented AICLE·s annual report for 1986-87.
Susanne Roberts, executive director of theArkansas IOLTA Foundation, Inc., reported onthe continuing growth ofIOLTA and the recruitment of attorneys forparticipation in the program.
President Stroud reported on behalf of theCorporation System Editorial Board that the Arkansas Corporation System is expected by theMid-Year Meeting inJanuary. He also reported that the Debtor/Creditor System is expected by April.
Robert L. Jones. III.chair of the Long-RangePlanning Committee.reported that the LongRange Planning Conference will be held onApril 22, 1988, at DeGrayLodge.
Samuel A. Perroni, reporting for the Resolutions Committee,moved for the passageof Resolution 87-2 calling for at least a 24month delay in the effective date of the FederalSentencing Guidelineswhich are scheduled togo into effect onNovember I, 1987. Themotion was secondedand passed.
John Gill. chair of theBicentennial Committee, reviewed the manyevents which were organized in Arkansas bythe Committee to celebrate the Bicentennialof the U.S. Constitution.including the signing ofa replica of the Constitution by Vice-PresidentGeorge Bush at thePulaski County Courthouse. President Stroud
praised the work of Gilland his committee.
Executive DirectorWilliam A. Martin reported on behalf of theCommittee on Incorporation. He presented thefollowing resolution:
The Association. itsofficers, committeesand staff, shallproceed with plans toincorporate the Association effective JulyI. 1988. The presidentis authorized to expand the committeestudying incorporation to add expertiseas he deems appropriate. The committee shall report to theHouse of Delegates atits January 1988 meeting so that the Housecan make a final determination whetherto go forward with incorporation.
It was moved that theresolution be adopted.The motion was passed.
President Stroud reported on behalf ofHerschel H. Friday,chair of the Model Rulesof Professional ConductCommittee, and presented a "Petition forAmendment of the Model Rules." Charles L.Carpenter, Jr., movedthat the House approvethe petition. The motionwas seconded andpassed.
Ralph M. Cloar, Jr.,chair of the Group insurance Committee, movedthat the Associationcontinue to sponsor theCNA professional liability policy offeredthrough Rather. Beyerand Harper. The motionwas seconded andpassed.
Martin presented thefollowing resolution:
The executive director and a committeeto be appointed bythe president are authorized to exploreproviding LEXIS
Group MembershipServices to membersof the Arkansas BarAssociation. If thecommittee and theexecutive director determine the terms ofthe proposed agreement are fair and reasonable and the offering of LEXIS is beneficial to Associationmembers. the executive director is authorized to enter intoa LEXIS MembershipGroup Agreementwith Mead Data Central.
The resolution was seconded and passed.
HOUSETO MEET
JANUARY 23
President Stroud reported that the nextmeeting of the Housewill be January 23. 1988.He requested approvalof committees appointed since June I. 1987, including the Form BookEditorial Board. LongRange Planning Committee. Model Rules ofProfessional ConductCommittee and StatuteRevision Committee. Itwas moved and seconded that these committees be ratified. The motion passed.
President Stroud alsoannounced that JudgeWilliam Webster, director of the Central intelligence Agency, will bethe featured speaker atthe annual meeting inJune.
There being no otherbusiness. the meetingwas adjourned. 0
Respectfully submitted,
Sandra Wilson CherrySecretary-Treasurer
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ARKANSASCORPORATIONSYSTEMA CONVENIENT NECESSITY
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EDITORIAL BOARD:Gregory B. Graham, ChairH, Murray ClaycombFrancis S. FendlerJohnnie R. HolcombTucker Raney MathisThomas L. OverbeyJohn B. PeaceRichard W. Williams
The 1988 ARKANSASCORPORATION LAW SYSTEM isa convenient and affordablenecessity for any lawyer inArkansas who will need to form acorporation after January 1. 1988.This System presents thepracticing attomey with the formsand information needed to quicklyand efficiently comply with the newlaw mandated by Act 959 of 1987.
The System is at press and willbe available no later thanJanuary 21. 1988. Take advantageof a special pre-publicationdiscount of $25 by ordering inJanuary 1988!
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Pre·Subscription Discount.(ordered in January 1988)
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·Non·Member of the Arkansas Bar Association add $50.00Name _
Mailing Address _
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Method of payment: _ Check _ MasterCard _ VISA
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400 West Markham. Little Rock. AR 72201(to order by telephone. call 375-4605 or 1·800·482·9406)__________________________________J
ARKANSASBAR
ASSOCIATION