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PUBLISHERArkallso.s Bar AssociatiollPhone: (501) 375-4606

Fax: (501) 375-4901Homepage: www.arkbar.rom

E-Mail: pjones@arkbar.com

EDITORPat JOlles

GRAPH.IC DESIGNSara Lmldis

EOITORlAL BOARDStuart P. Miller, Chair

Wiley A. BrantonMorton GitelmanJames c. GravesJ. Leon Holmes

Jacqueline Johnston/CravensLucinda McDanielDavid H. Williams

Jacqueline S. Wright

OFFICERSPresident

Sandra Cherry

President-ElectMurray Claycomb

Immooiate Past PresidentRon D. Harrison

Secretary -TreasurerWilliam A. Martin

ParliamentarianJeannette Denham

Bomd of Governors ChairDavid Vandergriff

Young Lawyers Section ChairTim Cullen

Executive DirectorDon Hollingsworth

Associate Executive DirectorJudith Gray

BOARD OF GOVERNORSJudge Wlley Branton, Jr.

F. Thomas CurryThomas A. Daily

Elizabeth DanielsonKay West ForrestLance B. Gamer

Dave Wisdom HarrodRobert "Skip" HenryGwendolyn Hodge

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James D. SprottDanny ThrailkillTeresa WinelandRobert E. Young

LIAISON MEMBERSTom Overbey

Judge James 1-1. Gunter, Jr.Carolyn B. Witherspoon

Wlliiam Wright

Tht ArkanSllS Lawyer (USPS.)46.{).1()) is publishcd quarterlyby the Arkansas Bar Association. I'eriodicals postage paid atLittle Rock. Arkansas. POSTMASTER: .send addresschanges to TIr,. ArkallSlls U1wyff,400 West Markham. UttleRock. ArkallSa5 72201. Subscription price to non-membersof the Arkansas Bar Association $25.00 per year. Any opinionexpressed herein is that of the author, ilnd not necessarilythat of the Arkansas Bar Association or The A,kllnsusLawyrr. Contributions to TIll A,kll"sllS £.Qwy" a~

....ekorne and should be sent in two copies 10 EDnoR. TIrlArLtnSQS I..IIwyrr, 400 West Markham" Little Rock. Arkansas722tJ1. All inquiries regarding advertising should be sent 10Editor, n,l ArkllllSIlS LaWYlr ilt the above address.Copyright 2001. Arkansas Bar Association. All rightsreserved.

on en sVOLUME 36, NUMBER 4

FeaturesNew Rules in Changing Times

4Amendment 80's District Courr ­

Let's Make it "Cricket" This Time, Parr Iby Judge Vic Fleming

13Arkansas Attorney Discipline Update, by Stark Ligon

17Bankruptcy Reform Legislation ­

The Good, the Bad and the Unknownby Linda Reid

23Teaching Old Dogs New Tricks:

The 2000 Amendments to the Federal Rules of Civil Procedureby Troy A. Price and Charles L. Schlumberger

29A Stitch in Time:

Secured Lending Under Revised Article 9by W Christopher Barrier

'~.. .*

Contents Continued on Page 2

ContentsVOLUME 36, UMBER 4

In This Issue3

President's Reporr, by Sandra Wilson Cherry

\5Eliminating Barriers to Justice in Arkansas:

Legal Services Reorganizationby Nate Coulter

2\YLS Section Report, by Tim Cullen

34CLE Calendar

36Inadvertent Disclosure of Privileged or

Work Product Marerialby David H. Williams

38In re: Technology

Digital Discovery Grab Bagby Kate Marquess

40Significanr Decisions of theSupreme Court of Arkansas

by L. Scott Stafford

4\Judicial Advisory Opinions

42Lawyer Disciplinary Actions

54In Memoriam

56 Classified Advertisingllndex to Advertisers

ARKANSAS BAR ASSOCIATION400 IV. Markham litlJe Rock, Arkansas 72201

HOUSE OF DELEGATES

De~gatl!!: District I-Sf: Ray Allen Goodwin Delegate District 2-SE: Mark R. Johnson, Katharine . Wilson

Delegate District 3-SE: Michad E. Mullally. Paul D. Wadddl, Dtnnis Zoplcr Delegate District 4-5E: Bill E. Bracq. Jr.Delegate District 5-5E: James Bradley Delegate District 6-Sf: Chris Morl«lge Delegate District 7-SE: Donald E. Ktt

Delegate District 8-SE: H0W2rd L Marrin Delegate District 9-5E: James 1'21 Aowt:rtDelegate District 10-SE: William IGrby Moust:r. David Sinu Delegate District II-SE: Paul W. Kdth Delegate District 12-SE: James Hamihon

Delegate District Il-SE: Sln'c R. Crane. Brian H. R'l.Ic1iff. Robin Carroll Delegate District 14-5E: Frank A. Poff, Christie Adams

Delegate District IS-Sf: Barry D. ~r, Todd M. Turner Delegate District 16-SE: Ronald D. Kdsay,John T. Vines

Delegate District 17-SE: Jam~ J2ockson

Delegate District I-NW: Edwin N. McCJure, Glenn E.. Kelley, Hardy W. Croxton, Jr., George R. Spe:na

Delegate District 2-NW: Ern~( 8. Gue. Soya R. Davis.. April M. R~. Shannon L nnt. R:aymond L Niblock. Ste\·en S. Uga.. lim Snively, Mm Durrett. Chris Rttd

Delegate District ]·NW: Niki Cung, Cl20ude S. H2owkins, Jr., Wyman R. Wade, Jr., Eddie H. W2olker, Jr., Shannon L 812on, limothy C. Sh2orum, Jason Maninn

Delegate District 4-NW: Daniel 8. Thrailkill Delegate District 5·NW: Gordon Webb

Delegate District 6·NW: John T. Tuum, David l. Eddy

Delegate District 7·NW: Danny M. RasmussC'n, Rhonda Wood Delegate District 8·NW: Ted Sanders

Delegate District I-e: 8rad H~ndricks. Gwendolyn O. HodgC', Ron A. Hope. Philip E. Kaplan, Harry A. Ught, Smk Ligon, harl~ C. Owen,

Harold Evans. Charles L Schlumbc:rger, Don K. Barnes, Elizabeth A. Thomas, Marshall S. Ncy, Melva J. Harmon, John C. Wade, Jeff Broadw.uer,

Marcella J. Taylor. Reed R. Edwards..\11. Stephen Bingham, John Wyvill, Causley Edwards. David Sterling, P;urick Harris,

Brenda Stallings, Mark Allison. David Raupp. Rick Ramsey. Patrick D. Wilson

law Student Representatives: Valerie Glover, University of Arkansas School of Law; Jason Ltt, UALR William H. Bowen School of Law

i He ,Irtlllls Llwyrr """.lrt~lr.n.

1"'I'sid"111 \ 111'111I1'1

We have aprofound role to plavSandra Wilson Cherrv

Our obligations to our

countrv never cease, but

wnh our lives.

- John Adams

This nation and, indeed, the lives of all

of us have been indelibly changed by

unspeakable aces of (errOf. We watched in

disbelief as the New York skyline was

altered forever by fanaticism and hare so

calculated and efficient we could barely

comprehend. We shuddered at pictures of

the nation's military headquarters. the

heart of our defense and intelligence,

unbelievably a victim of a relatively small

group of men, hem on our destruction.

Death rolls soared beyond the cosdiesr

moment in our history, - one day of battle

at Antietam, Maryland.

Yet, within twenty four hours, all the

strength and glory of this counrry was

manifested in a profound sense of

community and uniry of purpose. Once

again, each of us was heartened by the

courage of OUf fellow citizens - by New

York firefighters and policemen, who

abandoned all thoughts of personal safety

ro rescue survivors; by the grace of family

members suddenly engulfed 111

unbelievable grief; by the presence of mind

of those facing death on doomed airliners;­

and the healthy renewaJ of dedication and

love of country which is permeating every

corner of this great land.

fu; la\'lyers we have a profound pan ro

play. The American lawyer has always

been and muSt continue ro be the voice of

America, conveying both its courage and

its strength. From the nation's infancy it

has been lawyers. as patriots and scholars,

who have led this nation in time of great

trial. We can promote unity, set an

example for our fellow citizens to follow,

and encourage our communities to not

only move forward with confidence, bur

aJso with oprimism that our nation is

strong and will not fail. This is our duty

and our badge of honor.

We must realize that aJl of us will be

called upon in ways, nOt yet foreseeable, in

the coming months and years, as our

nation ferrets our and destroys the evil

which has shocked our very souls. Initially,

challenge your communities, and indeed,

yourself, ro unparalleled generosity, both

of your treasure and your spirit. Give of

your time and energies ro meet any need.

And above all, remember our obligation to

stand guard over our legaJ system ro insure

that we do nor permit the unfair targeting

of innocent citizens due ro their race or

place of birth.

I have every confidence that our nation

will lead the whole world ro victOry over

terrorism Moreover, I have no doubt thatour profession will contribute admirably [Q

me nation's spirit.

God bless each of you and this nation as

we move forward.

"01.16 No. 4/I'aIl1001 The ,Irkmas Lalljef 1

Amendment 80's District coun -Let's Make it "Cricket" This Time, Part I

[Author's Note: Grateful acknowledgmentsare extended ro Emma Jane Ohnemus, Esq.,of Little Rock, for research and edirorialassistance; Jane Portis Roeder of Conway,for research; the Honorable DarrellHickman, retired Justice of the ArkansasSupreme Court and currently Circuit Judgefor the 17th Judicial Circuit, for candidcritique, commentary, and advice; and theHonorable David Stewart of the Little RockDistrict Court, for a lively

point/counterpoint debate on significantissues and candid commentary on earlydrafts of this article.]

IntroducUon"That ain't cricket," my father used to say

when something JUSt didn't seem right. Thatsaying returns to me when I deal now withcases in which a person is sropped for atraffic offense in one town, then cited into

court in a town miles away, even though thetown of the Stop has a traffic Court.

The law books state that such a filing isnot defective, because municipal (nowdistrict) couns have countywide jurisdiction(except in ten counties that contain twojudicial districcs, jurisdiction is "limited to

the district"I). I don't doubt the abilities ofthe judges in the "other" tOwns: thesituation wouldn't pass Dad's gUt check test.

This and a few other aspects of Arkansas'sinferior coun system arguably could bemore efficient - but never have been because

. .The HonorableVictor A. Fleming,Little Rock DistrictJudge, is me authorof three books,editor of two, andfor 15 years was acolumnist for TheArkansas Lawyer.

The ,lrkanml.aW!fr 11I11I'.arkhar.rnm

by Judge Vic Reming, UmeRock District ClonnerIV

Municipal) coun

"that's the ways things have always beendone around here." The quoted adage, a pet

peeve of mine, is an often-used excuse not toimprove processes or work product in thelegal system.

For example, jurisdictionaJ limitation onfelonies causes cases to endure twO docketsbefore final disposition, even if thedefendanr wants to plead guilty from theget-go. Also, cases involving real estate liensare statutorily precluded from dispositionbefore judges who are fully qualified toadjudicate them.

The jurisdiction of inferior couns is not atopic that causes many readers ro salivate. 2

Given the chance ro write about it, I started

our with vigor. My enthusiasm waned a bitwhen I found myself knee deep inseemingly conflicting statures and cases

decided by thin majorities.Amendment 80, the "New Judicial

Article," Illay have settled a cenrury of

conrroversy in one area and provided afoundation to shore up weaknesses inothers. Or, as often is rhe case with new law,

maybe not. But this tOpic is importanr,

deserving of cornerstone staws in thejudiciary that Arkansas is abour ro build.The legaJ profession must take this matterseriously ro ensure mat whatever was to befixed by Amendment 80 gets fixed and getsfixed right.

TenI1ol1al JurlsdlcUon and Venue lorfllerclse 01 CI1mlnal Subject ManerJUrlsdlcUon

Whether a person arrested in an areaserved by one inferior court may rightfullybe hailed into a different area's court has

been debated for years. Legislation, courrrules, or both pursunm to Amendmenr 80may resolve this sticky question.

Some of my colleagues believe thatAmendment 80 provides that district courtjudges muSt now have their jurisdictionlimited to offenses occurring in thegovernmental unit ("district") that elects

them. Some (a group that includes me)believe Amendment 80 is not so clear onthis point.

What is clear is that change is at hand for

the Arkansas judiciary. Motivated by thepromise of non-partisan elections, the votersoverwhelmingly dimpled their chads FORAmendment 80 at the 2000 election. owthe question is, "What did we get?"

Most prominently. we got a long­heralded merger of law and equity at thecircuit court level, and we got rid of partyprimaries for the judiciary as a whole. Butwe also got a curting board for the inferiorcourt system - for changes in name,jurisdiction, and venue.

Amendment 80 (effective July I, 200 13)establishes "district courtS" as "trial courts oflimited jurisdiction."4 These courts "shall

have the jurisdiction vested in" municipal,corporation, police, and justice of the peace

courts. and courts of common pleas "at thetime this Amendment takes effect [and]

shall assume the jurisdiction of these courtSof limited jurisdiction and other jurisdictionconferred in this Amendment on January 1,2005."5 Moreover, "Municipal CounJudges in office [on July I, 200 I ,J shall

couns have not been of one mind as to whether an

inferior coun iudge elected in one IDealitY should be able to hear a

criminal case ariSing in admerent IDealitY...

continue III office through December 31,2004 .... "6

Resolving a pQ[enrial ambiguity, the 2001General Assembly enacted legislationproviding that the district court name was

effective July I, 200 I, and that disrricccourts "shall have the jurisdicdon vested inthe presently established municipalcourts......7 Thus, jurisdiction conferred in

Amendment 80 is effective in 2005.Jurisd.iction conferred pursuant toAmendmenr 80 will be effective then also,or later, in accordance with conferring

statutes or rules. By pre-existing law, otherjurisdictionaJ changes may be legislatedbefore 2005, though in each instance,whether AJnenclrnenr 80 supe~eded rheenabling law is a valid inquiry.

Several sections of Amendment 80 meritcollective scrutiny for an understanding ofthe issue. Before examining them, it may behelpful to establish a conrext, from thestandpoint of what has gone before.

Hlstor1c81 OVervtewCourts have nOt been of one mind as to

whether an inferior court judge elected inone locality should be able to hear a criminalcase arising in a different locality, especiallywhen the locality of the offense is in adifferent county. Criticism has been aimedat law enforcement (for apparent forum­shopping) and at municipal CourtS (for notdismissing cases). Prosecutors, who areuhimately responsible for where cases arefiled,S have been unscathed by the

controversy.No case has actually reached the issue of

whether abusive forum-shopping occurred.The lead dissenter, Justice Hickman, was

squarely against revenue-oriented courtselection. Though he never suggested that

the Attorney General, as chief lawenforcement officer for the State, was the

appropriate official to curb allegedlyimproper practices, one would think that adirective from the prosecutOr at the top ofthe food chain would have brought a halt to

any actual ahuses.This issue has deep historical rOOts. The

1873 General Assembly gave justices of thepeace UPs) jurisdiction "coextensive withthe county." First class cities of the day had"corporation courts," with jurisdiction torhe county line. The intent was that if acrime was committed in the city, if theculprit were apprehended within the county,it was rhe city court's case; if the crime wascommitted outside the city, it was the JP'scase.9 For lack of a better phrase, the countyline was actually the boundary for

"apprehension jurisdiction" for boch courts.Apparently intending to carry this

scheme forward, the 1874 Constiwtion lO

authorized the legislature to invest citycorporation CourtS with jurisdiction"concurrent" with JPs. Under this grant ofauthoriry, Act 87 of 1915 enabled certaincities ro create "municipal corporationcourtS": Judges were elected at "cityelections"; jurisdiction was "coextensivewith the county." In Stllte II. Woodniff,11 thecourt upheld the legislature's power to give acourt jurisdiction beyond the "geographicallimits" of its town. Such jurisdiction has

remained countywide. 12

This much-litigated precept13 holds thatif a city judge presides over an offensecommitted outside the city, the "nojurisdiction" defense is nor available, unlessthe offense occurred outside the county (inwhich event pre-trial dismissal is withoutprejudice I4). Stated simplistically, the caselaw features repeated instances ofdefendants• challenging the inferior court'S venue rothe inferior court and losing;

• peititioning for a writ of prohibition,within which they are unable to raiseconstitutional issues, and losing;

• being unable to appeal at this pointbecause venue decisions are not final,appealable orders (and because a trial de

novo appeal to circuit may cure all defects);• going to trial in the inferior Court andlosing;• appealing to circuit and losing on trial de

novo; and• being unable to raise the inferior courtvenue issue because the venue issue wascured at rhe circuit court level.

Also, typicaIly, on appeal jurisdiction

overtakes venue as the key issue. Thenomenclature is not consistent, but perhapsthat is to be expected, as the Supreme courtitself has remarked that venue andjurisdiction "are often usedinterchangeably. "15

Justice Newbern, in State v. Wtbb,16 used

the phrase territorial jurisdiction, asdistinguished from venue, which "deals withthe place where a trial may be had."17Justice Corbin, in State v, Osbornl 8 (which isnot directly concerned with municipal courtissues) used the phrase loclll jurisdiction,

which "deals ... with where the offense is robe rried."19

Territorial jurisdiction is to a court whatin personam jurisdiction is to a defendant.The concept is that the person was in theterritory when the deed was done. For acentury this jurisdiction has been co­terminal with the county line wherecriminal subject matter jurisdiction ofmunicipal courts is concerned. Frankly, thelaw seems ro be that if a trial judge calls itvenue, the case is transferred; if she calls itjurisdiction (without a qualifier), the case isdismissed (though without prejudice). Thepopular, if informal, norian is that whenintra-county movement of a case occurs,venue is involved, but if inter-county

movement occurs, then jurisdiction isinvolved.20

The key characteristic of venue is that it

"relates to practice and procedure and maybe waived."2J As simple as that seems,

several cases upholding countywide

jurisdiction on the basis that intra-countycase-shifting was a venue matter were 4-3decisions, with vigorous dissent. The theme

of the dissent has been that when a law

lmendmeat 80Continued on page 8

l'ol.l6 X,.l/l~all tOOl rh~ ,Irkams l,aI\T~r i

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-

lmendment 10Continued from page 5

enforcemem agem {boous a coun other [han

me one moS[ logically associated with the

point of arrest, it looks like forum­shopping.22

This lamem could be rectified by a venue

statute or court rule, mandating transfer to

required geographically logical orconveniem venues on timely objcecion, or

by a directive from the Anomer General,directing chat district coun cases beprosecured in specified couns, based on

geographical logic or convenience.Especially where traffic cases are concerned,

this would likely have satisfied the

dissemers, as traffic cases tcnd to producerevenue, the mmive oft-cited for why atraffic defendant sropped in one (Ownwound up in coure in a [Own several miles

disranr.23

As (Q non-traffic cases, a similar rule or

directive governing venue might tolerate

prosecurorial Aexibiliry for cases, such asthose involving a particular expertise orthose in which obvious economies areserved, though not to the detriment of the

defendants. If legislation implementingAmendment 80 eliminates overlappingrerritorial jurisdiction of all district courts,then this entire area of discussion may bemoot in 2005. But it wouldn't hurt to havea bencr rule to govern between now andrhen.

Justice Hickman went so far as to say iliarwhen a judge elected by rhe vmers of onecity presided over a crime occurring outsidethat city, a jurisdictional issue that could beraised SIlO sponte on appeal was presented,rather than a venue issue char faded in thecircuit court appeal process. Be.lievingjudges should nor hear cases arising oursidethe locaJities electing them, he wanted tooverrule \'(/oodru/f.

Aside from practical problems in re-filinga dismissed case,25 as opposed to

transferring a non-dismissed case, arguably,had the dissent carried the day, it would

have been but a Pyrrhic victory fordefendants, since the same charges wouldre-surface in a court down rhe road.However, the dissent garnered popular

support. as reRected by ACts 1I 18 and 1574of 1999, requiring counrywide election ofmunicipal judges, except in coumies wirh apopulation of over 100,000.26

The "system" long ago should have acred

S Ur ,Irkmas Lall)rr lI\lw.lrk~Ir.re.

on this issue. If it is a venue marrer ­involving practice and procedure - theexecutive or judicial branch could have

adopted a governing rule. If it is ajurisdictional marter - involving a judge'srighr to exercise authoriry27 - the legislativebranch could have enacted a more efficient

statutory arrangement. Under Amendment80, the legislature continues to have soleauthority to establish territorial jurisdictionin criminal marters; the Supreme Court

arguably has concurrent' authoriry to governvenue.

In the second parr of this article (nextissue of the magazine), we will look at thespecific provisions of Amendment 80 thatbar on this aspect of the jurisdictional issue,as weH as consider other jurisdictional issuesthat may shape the future of Arkansas'snewest court of first resort. And, while thismay seem a rather mundane issue to lawyerswhose practice does not bring themfrequently into the trenches of district COUrt,I urge the emire bar to take an interest. Acentury of controversial case law sends usthe message that we can do bener. Thepassage of Amendment 80 gives us theopportunity to do so. Let's not pass up thatopportunity.

fOOtnotesI Ark. Code Ann. §16-J7-206(b)(Rep!.

1994} provides thal the "jurisdiction of

a municipal court shall be coextensivewith the county in which it is situated,except in counties having tWO (2)

judicial districts, the jurisdiction shall belimited to the district in which the cOlinis situated." Arkansas counties that aredivided into twO judicial districts areSebastian (,re Ark. onst. An. 13. §5;Ark. Code. Ann. §16-13-2002 (Rep!'1994)); Prairie (m Ask. Code. Ann

§§16-16-7J9 & 13-2502 (Rep!. 1994));

Clay. Craighead. and Mississippi (,re

Ark. Code. Ann. § I6- I3-1 002 (Rep!.1994)); Lawrence (u, Ask. Code Ann.§16-13-1102 (Rep!. 1994)); Franklin(u, Ark. Code Ann. §16-13-1302(Rep!' 1994)); Askansas (u, Ask. CodeAnn. § 16- I3-1902 (Rep!' 1994));Logan and Veil (,re Ark. Code Ann § 16­

13-2302 (Rep!. 1994)). Subsequenrreferences to "counrywide" means"district-wide" where these counties are

concerned. St, also Ark. Code Ann. §§16-17-119(c} (Rep!' 1994) (governingbodies of cities in counties with over

25.000 residents may add municipalcourt divisions. "each of which shaH

have jurisdiction coextensive with thecounty"). § 16-17-704(Supp 1999)(incivil cases municipal courts have originaljurisdiction "coextensive with thecounty wherein the coun is situated},

16-17-217 & 16-19-401 (Rep!' 1994)(in townships having a municipal court,justices of the peace "shall have originaljurisdiction coextensive with thecounty"). The same phrase,"coextensive with rhe county," is used to

describe the jurisdiction of mayor's, city,and police couns, but with thequalification that this jurisdiction is asto "crimes and offenses committedwithin the limics of the city." Suo ~.g.

Ark. Code Ann. §§ 16-18-112 (Rep!.1994). 14-44-108 & 14-45-106 (Rep!.1998).

2 Readers who do find this Issuecompelling are encouraged ro watch for

a greatly expanded treatment of thisropic in an upcoming issue of the UALRLaw Review.

3 Ark. Const .• Amend. 80. §21.4 Id. §7(A}.

5 Id. § I9(B)(2}.6 Id. §19(A)(3}.7 Act J693 of 200 I.

8 Former Astide 7. Section 24 of the 1874onsritution provided that "The

qualified electors of each circuit shallelect a prosecuting attorney . .Prosecuting attorney is defined as "anyperson legally elected, appointed, orotherwise designared or charged . . .

with the duty of prosecuting personsaccused of crimes or traffic offenses." It"includes, but is nOt limited to: (i) a

prosecuting arrorney and any of hisdeputies or assistants; and (ii) a cityattorney and any of his deputies orassistanrs." A,k. R. Cr. P. 1.6(b)(ii}.

Under Ask. Code Ann. §16-21-103(Rep!' 1994). "Each prosecurmg

attorney shall commence and prosecuteall criminal actions in which the state orany county in his district may beconcerned." ~ ro cities, prosecuting

attorneys may designate ciry attorneys to

prosecucc in municipal courts statemisdemeanors occurring in the city. Ark.Code Ann. §16-21-115 (Rep!. 1994).

9 See Slim v. Woodruff. 120 Ark. 406, 179S.W 813 (l915).

10 Art. 7, §43.II 120 Ark. 406, 414, 179 S.W. 813

(1915).12 Su Note I, supra.13 Noteworthy cases include Stnu v.

Langstaff. 231 Ark. 736, 332 S.W2d614 (1960) (speeder's venue changefrom Hamburg Municipal Court to

Egypt JP Court upheld on the basis thatan order granting or denying a change ofvenue is nOt appealable); Pul v. Ktlky,268 Ark. 90, 594 S.W2d II (I 980}(upholding imer-coumy venue in smallclaims, noring municipal courts "haveno necessary connection wim countylines"); Pulaski County Municipal Courtv. Scott, 272 Ark. liS, 612 S.W.2d 297(1981) (county is "municipal

corporation" for purposes of havingmunicipal court); Horn v. Stau, 282Ark. 75, 665 S.W2d 880 (1984) (law

doesn't require defendant be charged incourt nearest arrest, equal protectionissue - "inability of county residents tovote for a municipal judge who hascountywide authority" not reached);

City Court of Pta Ridgt v. Tin", 292Ark. 253. 729 S.W.2d 399 (l987) (bystatute. where state offense was charged,venue motion divests city court of

jurisdiction); City ofSpringdnk v. jones,295 Ark. 129, 747 S.W2d 98 (1988)(pringdale Municipal Court, In

Washington County, had no jurisdictionover offense occurring in BentonCounty segment of Springdale, eventhough city voters from both countieselected judge); "'chi" v. Stat<, 297 Ark.206. 760 S.W.2d 858 (1988) (arrest"cast of Elkins" prosecuted in West Fork

Municipal Court, jurisdiction andvenue arguments lost justiciability incircuit court trial de novo); Griffin v.

Stat<, 297 Ark. 208, 760 S.W2d 852(l988) (f.lir trial with propet venue in

circuit court mooted Fairness issue ofSpringdale resident's being arrested inSpringdale's Washington County part

and tried in Elkins Municipal Courtover venue objection,); Sexson v.

Municipal Court ofSpringdalt, 312 Ark.261, 849 S.W2d 468 (I 993} (Ark.

Code Ann. §16-17-206(b)(2) (Supp.1991). enlarging municipal courts'

jurisdictions to include parts of citiesthat extend into omer counries, held

unconstitutional); Stat< v. Wtbb, 323Ark. 80.913 S.W2d 259 (1996) (equalprotection claim rendered moot atcircuit court level in case of sevendefendants arrested in areas of Bemon

ounty, other than Rogers orBemonville, bur hailed into those cities'

municipal courts).14 Stat< v. Osborn, 345 Ark. 196, 203, 45

S.W.3d 373 (2001).15 /d.16 323 Ark. 80, 913 S.w.2d 259 (1996).17 Id 323 Ark. at 85.18345 Ark. 196, 199, 45 S.W3d 373

(2001).19 "Ordinarily, venue refers to the

geographic area, like a county, where anaction IS brought to trial.... Ulurisdiction is generally thought ofas the power of a court to decide cases,and it presupposes control over thesubject matter and the parties.... Onetype of jurisdiction is known as 10caJjurisdiction [which] 'deals only withwhere the offense is to be tried, noc withwhether the scate lacks the basicauthority to apply its criminal law to theevents in question'." Id.. citing LaFave,

Criminal Procedure § 16. 1(al, at 461 (2ded. 1999). In my opinion, JusticeCorbin virtually equates localjurisdiction with venue, though hewrote that me Olborn facts presented"an issue of local jurisdiction, notvenue." Id.

20 A statute that speaks of moving a casebetween municipal courtS in the samecouney refers to chang~ of venue. Ark.Code Ann. §16-17-116 (Rep!. 1994).Unfortunately, this is the only statutethat speaks to the issue of changingvenue in district court cases, and it

provides mat a defendant must showalmost overt prejudice in order to beentitled to a venue change. Anotherstatute speaks of municipal judges'~xchanging jurildiction III their

respective city and couney districts."Ark. Code Ann. § 16-17-102 (Rep!.1994). This statute provides a loosestandard by which district judges mayshift their dockets among each otherwithout regard to where cases arose or

whether the presiding judge was electedfrom the area in which the offense wascommitted. The laner's broad wording

accommodates inter- and inua-county

relocation of hearings, as well as theinter- or intra-county travel by judges tosit for each other. I've used it to send a

case co a neighboring county and tohave another judge travel to Little Rockto sit for me.

21 Griffin, "'pra Note 13, 297 Ark. at 210(Glaze, J., concurring).

22 Funds collected as a result of municipalCOUrt criminal proceedings are depositedinto the treasury of the city in which thecourt is located and are available for"general municipal purposes." See Ark.Code Ann. §16-17-119 (Rep!. 1994).

uggestions of monetary mouve are lessthan veiled in Justice Hickman's dissentsin Griffin. Pschi~r, and SCOff, mpra. ore

13.23 In Griffin. supra. Note 13, 297 Ark. at

215, Judge Hickman pondered why adeputy sheriff who arrested Griffin in

pringdale, "a city of 25,556," wouldcransport him to Elkins,"a town of673"- "because the justice was better there?... Perhaps he wanted to help Elkins outin its revenue raising efforts. In fiscalyear 1988, Elkins collec,ed $46.353.00in fines. Perhaps the sheriff's officefavors Elkins, or maybe it is just a manerof spreading business around."

24 Id., 297 Ark at 215-16: "The municipalcourts of Elkins and West Fork have no

jurisdiction over misdemeanorscom mined outside their city limits....The coun can ignore the problemIIlld hop~ tl constitutiolllll amendmentwill b~ passed or that these cases won'tpcrsisr. ... [A]nytime a policeman candecide which judge will determine thefate of the defendant, there is an openinvitation to corruption." (Emphasisadded.)

25 In a traffic marter, assuming the

arresting officer had jurisdiction to issuethe citation, a dismissal withoutprejudice in district court would involve

either creating a file in the dismissingcourt, retaining a certified copy of theoriginal citation, and returning the

original citation to the issuing agency or

Amendment 80Continued on page 11

111.16 SI. lIFall 1001 Ue Arkmas La~w

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Mu.I r__ the ... "Corpor_', 'lncorpor"~."'C..,.,,-.•a....,ud". or Ibt abllrnutaoa "Corp.", "IDe.'. "Co.,. or 'U4' or.-wclllOI ....~oflit.lIIIportll'ltl'lOUlll'~.

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AII.I_180Continued from page 9

to the local prosecuring authority fortransfer (0 the prosecuting authority in

the appropriate jurisdiction. or, if thedismissing court retained the citationwithout accommodation to the

prosecuting authority, the drafting of anaffidavit for an arrest warram for

processing in the appropriatejurisdiction. issuance and service of thewarra.rl t, etc.

26 Ark. Code Ann. §§ 16-71-120 & 130(Supp. 1999). These bills came up onrather shorr notice in the 1999 GeneralAssembly, prompting an inquiry to thesponsors, who candidly stated thatcertain residents of smaller counties wholived oucside the voting parameters ofcenajn municipal judges in theircounties believed they should have theright (0 vote on the municipal judgebefore whom they either might have toappear. That the solution employed wasto expand the universe of municipaljudge electors, rather than mandate thatlaw enforcement file cases ingeographically logical venues is ironic.The irony is highlighted by federal courtprecedem, approving circuit court"electoral sub-districts," in whichminority voters, constitutjng a majorityof residents, elect judges who thenexpressJy have terrirorial jurisdictionexceedjng the geography of the area thatelects them See, e.g., Hunt v. State, U.S.D.C (E.D. Ark.) No. PB-C-89-406(Nov. 7, 1991), explained in Caldwell v.State, 322 Ark. 543, 547-48, 910S.W.2d 667 (1995), and Kemp v. State,324 Ark. 178, 190-93,919 S.w'2d 943(1996). See also Holt Civil Club v. CityofTilScaloosa, 439 U.S. 60, 69-70 (1978)(under AJabama law allowing municipalcourt jurisdiction three miles beyondcity limits, residents of unincorporatedcommunity had no constitutional right

to participate in political processes of ;::::::::::::::=....;;,,:::::::::::::::::::=-__..::::::::::::::::=-__::::::::::::::::::=-_.,city simply because they were subject to

its police and sanitary regulations).27 Su Note 27, infra.28 The term geographical area (§16(D)) is,

if nothing else, a far less definirjve tcrmthan analogous nouns of common

Amendment 80Continued on page 51 pjones@arkbar.com

101.36 No. 4/~aIl2UOI 1'he ,Irkillil LaWler II

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Arkansas Attorney Discipline UPDATEby Stall Ugon

Significanr changes in the Arkansas

Arrorney Disciplinary Procedures and

cwo Model Rules of Professional Conduct

will take effect January I, 2002. Announced

by a Pet Curiam from the Arkansas Supreme

Court issued July 9,2001, the full text can

be found on-line athttp://courtJ.stau.ar.uslopinioml200I0709.h,m (second item in the Appendix) in bothHTM L and WordPerfect 5.1 versions.Many of these changes result from the

February 2000 "Arkansas Report on the

Lawyer Regulation System," issued by theAmerican Bar Association Standing

Com mince on Professional Discipline.which visited Arkansas in the Fall of 1999.

We believe the new Procedures will be

applied to all cases pending as ofJanuary I,

2002, or filed thereafrer.

The mOSt significant change is probably

the one that will provide a new hearing

panel [0 a charged attorney at each new

stage of the disciplinary process. At presem,

the same seven member panel decides mecase at both the ballot VOte (first) and the

public hearing (second) stages. Under the

new Procedures, up to three different panels

will be available for use on baJlor voces,

public hearings and discipline by consem

offers. The hearing panels will utilizetwemy-one Arkansans, six of whom will benon-lawyers, as members. Panelmembership will be rotated petiodieally.

Other significam changes are: (I) afinding mar an anomey has comminedtheft of property from a c1iem or beenconvicted of a "serious crime" will result inautoma(Jc initiation of disbarment

Stark Ligon has beenExecutive Directorof the Arkansas

Supreme CounOffice of Pro-fessional ConductslOce January I,2001.

proceedings; (2) the Office of Professional

Conduct will now have authority to appealhearing panel (Comminee) decisions to theSupreme Court; (3) me Executive Director'sconcurrence will be required on alldiscipline by consent offers before they canbe submitted to a panel for consideration;(4) Supreme Coott approval will be required

on all discipline by consent offers where thecharges involve "serious misconduct"; (5)disbarment proceedings will be assigned to aspecial judge appointed by the Supreme

Coun and hearings will normally beconducted in Pulaski County; (6) the judge

in disbarmem proceedings will makefindings of fact and only a recommendationon sanction, leaving the actual sanctiondecision ro the Supreme Court; (7) the

Committee's authority co suspend has beenincreased frol11 twO to five years; (8) theCommittee's fine authority has beenincteased from $1,000 to $25,000; (9) the

Office of Professional Conduct is givenadditional informal "diversion" tools to use,such as lawyer assisrance program referral,mediadon, and fee arbitration; (10) theconfidentiality/privilege requirement on allpanicipams in the disciplinary complainrprocess has specifically been extended to

complainams; and (11) the previousprohibition against suspended anorneysbeing employed in any capacity by anattorney or law office has now beenextended to include attorneys whosurrender their license, are disbarred, or areon inactive status.

The Procedutes will still generally follow

the same process in all but disbarmentproceedings: receipt and staff investigationof a written complaint; a decision on filing aformal complaint, informal diversion oradministrative dismissal; a ballot VOte by apand based solely on the pleadings; a public

hearing if requested by the respondemanomey; and an appeal de novo on thehearing record to the Arkansas SupremeCourt. The process and file will remain

confidemial unril the public hearingcommences or final disposition of acomplaint by public sanction. Discipline byconsem is available at any stage after service

of a formal complaint on the respondentatcorney.

Model Rule 1.15(d)(l) is amended to

add a requirement thar (alTA anorneytrust accounts can be maintained only inbanks that agree with the Supreme Court tomail "overdraft" notification on all"insufficient funds" trUSt account checks(paid or not paid) ro the Office ofProfessionaJ Conduct, which will investigatesuch matters as possible "early warning"signs of problems for the attorney andhis/her clients. Model Rule 1.4 is amended

by add (c), requiring an attorney topromptly notify a client in writing of theactual or constructive receipt by theattorney of funds from any source, whichrepresent funds to which the client isentitled.

Our statistics continue to show about1,000 new complaints received each yearand about t 50 that result in filing of formalcharges annually. The mostly commonly­found Model Rules continue to be thoseinvolving conduct prejudicial to theadministration of justice (usually causingdelay), attorney diligence and promptnesswith client matters, keeping the clientinformed, attOrney competence, mattersinvolving attorney dishonesty, fraud, deceitor misrepresentation, and failure to notifYand deliver funds due to clients.

While the Office of Professional Conduct

is not permitted to give advisory opinions.the professional staff hopes to engage in asubstantial educational effort with the barand the public to attempt to reduce allegedmisconduct and new complaints. Staffattorneys are available for programs andCLE opportunities by calling 501-376­

0313 Ot 1-800-506-6631.

In June rhe Arkansas Judiciary websitebegan offering information about publicdisciplinary histories of Arkansas licensedattorneys online athttpll.courts.stllu.Ilr.u.slattylisl. In the future,we plan to add a link from the disciplinary

history listings to the full text of theCommittee's findings and order in eachcase. _

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Eliminating Barriers to Justice in Arkansas:Legal Services Reorganization

by Hale COuner

Several weeks ago I ran across a lormer clienl who several years earlier had come 10 see me

Ihrough VOCALS, Ihe pro-bono relerral program 01 Ihe Pulaski COunly Bar Associalion. As I

wailed in line wilh her 10 pay lor my collee. Ihe young woman I had represenled in a CUSlody

dispule wilh her mOlher proudly inlormed me Ihal her children were doing well in school and

Ihe lamlly breach Ihal had prompled her 10 seek legal counsel had mended.

When I first met this woman she hadrebounded from a severe crisis that hadlanded her in uouble and separated herfrom her three young children for anextended period. Through a couple ofhearings and the appeal process. we hadsecured her reunion with her children.Seeing her now and hearing how things hadgone since we obtained a chancellor's rulingthat the woman was a fir parent,notwithstanding her many past mistakes,reminded me anew how cficicaJ it is ro haveaccess (0 legal advice in a crisis where oftenthere are no good options. only ones that arerelatively less painful.

About the Author

Nate Coulter IS

currently a partner atWilson, Engstrom.Corum & Coulcer inLittle Rock. He ischair of rhe ArkansasBar Association'sLegal Services Com-

mittee, a past presidem of me board ofLegal Services of Arkansas and a 1985graduate of Harvard Law School.

Several imponam developments in reeemmonrhs offer significant promise ofenhancing the availability of this criticalaccess [0 legal assistance for Arkansas's lowincome citizens.

The first of these is the reconstitution ofthe primary service providers -- the legaJservices programs. As recently as six yearsago, there were seven legal services programsserving various geographical configurationswithin the state. The Legal ServicesCorporation, a federally funded agency inWashington and the primary source offunding for OUf state's legal services for thepoor, began in the mid 19905 to emphasizescate planning as a means of encouragingbetter coordination among the six programs.

As parr of the ongoing scatewide planningprocess in Arkansas, a group composed ofthe program directors from each of the sixlegal services programs, rhe IOL;rA sraff andboard members, Arkansas Bar Associationstaff and leaders, and the Arkansas JudicialCouncil have convened to establish concreteways of expanding and improving thedelivery of civil legal services in Arkansas.One important facet of this state planningprocess to improve the capacity of theArkansas legal services programs is theconsolidation of Arkansas' six separate, 110n-

profit organizations into twO legal servicesprograms. That much is about to happen.

The tWO largest programs, CentralArkansas Legal Services and Legal Servicesof Arkansas, merged successfully into theCenter for Arkansas Legal Services (the"new" CALS) five years ago. Together theynow serve 32 counties in Central and SouthArkansas.

The remainder of the state is served nowby four smaller programs. Merger talks areprogressing that will eventually join WesternArkansas Legal Services (WALS) withCALS.

This merger will be completed before theend of 2001. Additionally, negotiationshave begun between the Center and EastTexas Legal Services (ETLS) which has haduntil now the responsibiliry for serving thepoverry population of four counties inSouthwest Arkansas. The likely resolutionwould allow both programs to share theTexarkana branch office and shift the fourArkansas counties to a program in the statewhere the counties are located. This makesmore practical sense than having thesecounties served by a Texas-based agency, iffor no other' reason than that the lawyers,judges and diems in those four countiessend their tax dollars and legislative

10l.l6 10. 4/1'0112001 The IrkooSl! LallIer 1\

represematives to Litrle Rock, not Austin.Finally, efforts are well underway to

merge the remaining three programs, EastArkansas Legal Services, Legal Services ofNortheast Arkansas and Ozark LegalServices, imo one program that would servenorthern and eastern Arkansas. Because itcovers a very large expanse with pockets ofrelative affiuence as well as some of the mostimpoverished coumies in the state, thismerger is the most significant. The mergercommirrees for each of the three programs,for example, are examining socio­demographic facrors in the proposed serviceareas, the most prevalent client serviceissues, recurring community and staffconcerns, as well as operational and legallogistics. The challenges of this merger aremany but the potential benefits far outweighthem.

The two-program statewide srrUCturethat is emerging as a result of the planningefforts and the ensuing mergers will achievea number of important objectives, allpointed roward an effective, client-centeredstatewide delivery system. The newstructure should eliminate someadministrative duplications, create a secondprogram in the state with sufficient size anddepth to function as a major law firm inArkansas (the two programs will be amongthe rop Arkansas firms by size), releaseleadership talent from bureaucratichumdrum for reassignment to advocacy andpolicy leadership, consolidate local advocacyaround judicial districts that have previouslybeen split among several programs, and helpthe offices of all the current programsimprove the quality and effectiveness oftheir advocacy through co-counseling andteam work on cases.

While offering efficiencies throughconsolidation and cooperation, the twoprogram structure will preserve effectiveelements of our current system. The focusof legal work supervision and delivery willremain in the local offices, under theleadership of managing attorneys who areaware of local needs, court practices andcommunity expectations. The twO projectdirectors will retain some direct conract withthe legal work of the programs. The newnorthern program -- which is yet to benamed -- will be large enough to realizesome economies of scale withom being solarge to create bureaucratic impediments. Itwill also maintain the racial diversity of theboard and the staff that is criticallyimportant to a successful program.

16 The lrkmas Lawyer wlflf.ukbar.rom

Having cwo programs of roughly thesame size in the state should foster a healthydialogue about maximizing the potential ofthe state system, and perhaps even a bit ofuseful competition as the twO programsseek to outdo one another in the excellenceof their advocacy.

It is my hope that the [\'10 programstogether will lead the bar, the courts andcommumty orgal11zauons to create 3neffective statewide legal services deliverysystem. Part of achieving that end entailshaving the two programs initiate and refinesome state level functions for assisting thelargely federally funded programs. Movingto the greater efficiency and effectiveness ofa complementary, two-program statedelivery system and a funded set of state­level functions would ensure that ail incomeeligible individuals in Arkansas have equalaccess ro quality legal services.

The merger of the existing programs isnot the only important recent developmenton the subject of providing access to justicein Arkansas. On March 23, 200 I, theArkansas legal services programs and {heArkansas Bar Association sponsored anAccess to Justice Symposium.

One hundred and fifteen individualsrepresenting the judiciary, bar, communitygroups and state and federal governmentattended the one-day event. The discussiongroups focused on six challenges facing theArkansas justice community: effectivedelivery of advice and brief services;increased pro bono involvement; increasedresource development; development ofstatewide leadership; more effectivecollaboration; and alleviating ingrainedpanerns of legal needs facing the poorestcitizens.

Based on the day's presentations anddiscussions, the assembled leaders from theArkansas state justice community agreedthat an Arkansas Access to Justice Projectshould be created to lead the burgeoningefforts to improve access to justice inArkansas. The group asked legal servicesleaders to work with state bar leaders rorecruit initial members for the Project. Inaddition, the following steps were suggestedfor consideration:

develop an information packet to supportgreater private bar pro bono service;survey what the public knows aboutaccess to justice and what the publicneeds help with;

• establish a statewide telephone advicesystem for low income cliems;

strengthen and expand the statewideresource development effort;organize a representative grouplfoundation for fund-raising andeducation;contact local news media about theimponant needs for justice among thepoor.Any effort to serve more people and to be

more efficienr mUSt focus on the typicalunmet legal needs faced by Arkansans whocannot afford a lawyer. To help sharpen thatpicture, the Bar Foundation and the legalservices programs are now working on acomprehensive legal needs survey. Thatinformation will in turn help providers,judges and legislators who believe the statehas an obligation ro ensure that everyonehas access to the courthouse or access to alawyer trained to help them avoid the kindsof problems that force them to visit thecourthouse.

Finally, Congressman Vic Snyder of LittleRock and the Legal Services Corporationannounced on August 8, 200 1, thatArkansas's legal services programs wouldreceive a $409,000 federal technology grant.The gram will pay for improvemems to thestatewide legal services website; a centralizedstatewide legal advice and referral telephonehotline; and the creation of virtual lawoffices in six locations around the state. Inaddition to access ro some legal advice, thesevirtual offices would afford access to acomputer, telephone and fax machines.

Neither income nor geography shoulddetermine an Arkansan's access ro legaladvice. A person who faces a legal crisis ina rural county should have ready access to apro bono attorney just as the woman livingin our most populous county had whenVOCALS referred her to me.

With these recent developmenrs, we aremoving closer ro eliminating long standingbarriers to justice in our state and forgingnew standards of excellence in the provisionoflegal services to the poor in all corners ofArkansas.

For further information regarding theArkansas legal services programs' collaborateinvolvement in efforts ro achieve astatewide, integrated state justicecommunity, please read the Arkansas StatePlanning Report. You can request a copy bycomacting Debra Garrison at the ArkansasLegal Services Programs ResourceCoordination & Training Unir, (501) 376­3423, 1-800-950-3423, ordgarrrison@arkanasiegalservices.org. _

BANKRUPTCY REFORM LEGISLATIONThe good, the bad and the unknown

by Unda Reid

Bankruptcy reform legislation is merely one conference committee and President Bush's

signature away from becoming law... II the legislation now in the final stages of consideration

by Congress passes in its present form. lawyers can expect to have to learn anew many of the

Bankruptcy Code sections applicable in consumer bankruptcy cases.

Histon 01 DIe CUrrenl BanwPICV RelonnleglslaUon

In june, 1998, the House ofRepresentatives passed what nearly became

the most sweeping bankruptcy reformlegislation in rwemy years. A comparable

bur slightly less stringent biU was passed bythe Senare in September, 1998. The Senateand House versions were reconciled just

before Congress adjourned in October,

1998. The House approved the reconciled

legislation but the Senate never vored on thefinal bill and it died on the Senate Aoor.

Similar legislation was introduced in1999. Thar legislation failed to pass in the

Linda Reid IS

cUffendy directorof Career Planningand Placement atthe University ofArkansas School ofLaw in Fayeneville.She was formerlySenior Law Clerk ro

the Honorable Robert F. Fussell, U.S.Bankruprcy judge for the Easrern andWestern Districts of Arkansas.

fall session of Congress. Nearly identicalreform legislation was passed by Congress at

the close of the 2000, bur was subsequencly"pocket vetoed" by former President

C1inron.Bankruptcy reform legislation was

introduced in the l07th Congress on

january 31, 2001, in the form of H.R. 333,the "Bankruptcy Abuse Prevention and

Consumer Protection Act of 200 1," and S.

220, the ·'Bankruprcy Reform Act of2001."These bills were essentially idemical ro eachother and to (he bill passed last year. The

House passed a slighdy amended version of

its bill on March 1,2001.The Senate Judiciary Committee marked

up ics bill and reported our a clean bill, S.

420, which was passed on March 5, 200 I.

On july 17,2001, the Senate voted 82­16 to adopt Senate bankruptcy reform

language (S. 420), passed in March, underthe bill number of rhe House-passed H.R.333. Senare Majority Leader Daschle (D­SD) and Senare Minority Leader Lo" (D­Miss.) appointed seven Senate Democrats

and six Senate Republicans as conferees to

resolve me differences in the House and

Senate versions of the reform bills.

The Democrats include: Biden (DE),

Durbin (I L), Feingold (WI), Kennedy(MA), Kohl (WI) (author of the Senarehomestead amendment), Leahy (YT) andSchumer (NY). The Republicans include:Grassley (IA), Sessions (AL), Kyl (AZ),

McConnell (KY), DeWine (OH) andHarch (UT).

On july 18, 2001, the Senate sene amotion to the House Aoor [Q go [Q

conference on bankruptcy reform legislation

(H.R.333). On july 31, House judiciaryChairman James Sensenbrenner (R-Wis.),who will preside over the House-Senateconference committee, named a rotal of 12

House Republicans and seven Democrats to

join the 13 Senate conferees to reconcileHouse and Senate versions of bankruptcy

reform (H.R. 333) in conference.The Republicans named include:

Representatives Sensenbrenner, Bachus (R­

Ala.), Barr (R-GA), Barron (R-TX),Boehner (R-OH), Cascle (R-DE), Chabor(R-OH), Gekas (R-PA), Hyde (R-IL),Oxley (R-OH), Smith (R-TX), and Tauzin(R-LA). The Democrats include:Representatives Boucher (D-VA), Conyers

(D-MI), Dingell (D MI), Kildee (D-MI),laFalce (D-NY), Nadler (D-NY), and Wan(D-NC).

1'01.16,1'0. ,tlFa1l2001 Tie Arkusos I,awler 17

who failed to complete the instructional

course would be subject to denial of

discharge.

Additional Filing Requirements. Debtors

would be required to provide copies of their

tax returns to the Unired States Trustee

(with disclosure to any interested party),

and other information regarding their

income, expenses, and assets. Failure to file

this information would result in automaticdismissal of their case.

Debtor Audits. Under the provisions of

both bills, a certain number of cases (no less

than one out of every 250 filings) would be

pulled randomly and the petition,schedules, and statement of financial affairs

scrutinized by independent certified public

accountants using "generally accepted

auditing standards." The U.S. Trustee

would be authorized to take action when"material" misstatements in the debtOr's

petition and schedules were identified.

Child Support. Under rhe proposed

legislation, court-ordered child support and

alimony payments would no longer be

stayed during the pendency of the

bankruprcy case. They would also receive

priority over most other claims, including

the trustee's fee in administering the estate.

They would not, however, enjoy higher

priority than property tax liens. In other

words, if a debtor owed bOth property taxes

and child support, proceeds from the sale of

liened properry would be applied firsr ro rhe

property tax claim, then to the suppOrt

claim.Cram Downs. Cram down wouJd be

eliminated for mOtor vehicle loans obtained

provide for dismissal of Chapter 7 cases or

(with the debtor's consent) conversion to

Chapter 13, upon a finding of abuse. Abusewould be presumed if the debtor had more

than $100 in monthly income available to

pa)' general unsecured debt, based on a

formula incorporating collection standardsof the Internal Revenue Service. Debtors

whose family income exceeds a nationalmedian for their size family would be

required to go through this "means testing"

on the request ofany creditor. Debtors with

the ability to pay 25% (Senate version) or

more of their unsecured debt would be

required to file a Plan under Chapter 13 and

make payments for a minimum of 5 years.

Credit CozlTlseLing/FinanciaL ManagementTraining. Debtors would be required to

obtain credit counseling from an approved

non-profit agency within 180 days prior to

the filing of a bankruptcy petition. Debtorswould be required to first a[(empt to

negotiate a volumary repayment plan

through the consumer credit counseling

sen'lce before filing for bankruptcy

protection. This requirement might not

apply if rhe debror faces a porenrial loss of

property before the debtor could complete

rhe good-fairh arrempr. The debror would

be required to file a certificate from the

credit counseling service with the courr. If

the debtor entered into a debt repayment

plan, that plan would also have to be filed

with the courr. To seek discharge under

Chaprer 7 or 13, debrors would also be

required to attend a personal financialmanagement instructional course following

the filing of a bankrupt9' petition. Debtors

.... Registered Professional Engineer in 3 Slates.

.... 9 )'ears of experience as President of large distribulor spcciali7Jng in alltypes of s..'lfcry equipment, m.ajor emphasis on meml forming and stamping.

.... II yC:lrs of experience as PresidcllI of company involved in repair and rewinding of electricmotors and manufacLUre, sales, install:uion and servicing of electrical control panc:ls for indl\stry,

.... 14 )'cars of experience with General Elenric Co. in engineeringand industrial sales.

Earned BS - ElcctriC'dl Engineering in 1947.

Complelc curriculum vilae and references on request.

The ProDosed lelIISI8l1onA primary intent of the bankruptcy

reform legislation is to make it more

difficult for consumer debtors to discharge

debts under Chapter 7 of the Bankruptcy

Code, thereby pushing more debtors into

Chaprer 13. Some of rhe changes in borh

bills that will impact consumer bankruptcies

include:

Means testing. The bills establish a "means

test" for consumer bankruptcies that would

force individuals who have the capacity to

pay back some of their debts to do so

through Chapter 13 instead of wiping theirslates clean through Chapter 7. The testing,

designed to determine the extent of a

debtor's ability to repay general unsecureddaims, has three elements: (I) a definition

of "current monthly income" measuring the

total income of a debtor is presumed to haveavailable; (2) a lisr of "allowed deducrions"

from current monthly income, for purposes

of support and repayment of higher priority

debr; and (3) defined rhresholds ar which

the income remaining after the allowed

deductions would result in the presumption

of abuse in the filing of a hapter 7

petition.More specifically, 707(b) of rhe

Bankrupt9' Code would be amended to

Sensenbrenner has announced thar he

wants conferees to meet formally for the

first time soon after members return from

their summer recess on September 4, 2001.

Once a conference bill is worked out it musr

be approved by both houses before it issubmitted to the President.

18 Tke ,Irkansas !,allIer Ifllw.arkbmom

within five years (three years in the Senateversion) prior to the filing of the bankruptcypeticion. As co other personal propercy. thecram down would not be available for anyloan incurred within one year of the filing of

the bankruptcy petition.Minimum Plan urm. In order to

maximi~ the paymenr to general unsecuredcreditors, Chapter 13 would be amended torequire a minimum plan term of five yearsfor d.ebtors whose income exceeds themedian income of the applicable state for acomparable earner.

Non-disclJarg~abl~ D~bts. Luxurypurchases totaling over $250.00 ($750.00 inthe Senate version) within 90 days of thebankruptcy filing would be presumed tohave been incurred by fraud, and allfraudulently incurred debt would be nondischatgeable in both Chapter 7 andChapter 13 cases.

Exemptions. The Senate version containsa $100,000.00 cap on the HomesreadExemption that could be claimed in abankruptcy action. The House versioncontains a $250,000.00 cap but allows sraresto "opt our" by subsequenr enactment.

In addition, debtors could not availthemselves of state domicile exemption laws

unless a domicile of the subject state for atleast 730 days prior ro the filing of thebankruptcy petition (in comparison to the180 day residency requirement). However,if a debtor's domicile was not in a single

srate for the 730 day period, the place ofdomicile of the debror for a majority of 180days preceding the 730 day period woulddetermine the state of domicile of the debtor

for purposes of exemption laws applicability.Although the bankruptcy reform scaNes

passed by the House and Senate areprincipally aimed at consumer bankruptcyissues. there are several provisions in the rwobil1s that would affect businessreorganization cases as well:

I'rrfirmtial Tm,zsfm. The bills makechanges in the preference recovery section(547) of the Banktuptcy Code to (l)increase the period from ten to thircy daysafter the granting of a lien within which a

secure creditor may perfect a lien andthereby prevent the perfection of the lienfrom being considered a "transfer" thatcould be subject to avoidance as being

preferential and (2) provide an exemption innon-consumer cases for what would

otherwise be an avoidable preferential

transfer if the amount transferred is less than$5,000.

Several provisions were also added withregard to "small business" chapter 11 cases.For the purpose of those provisions. a smallbusiness debtor would be a debtor with no

more than $3,000,000 in the aggregateamount of secured and unsecured debts as

of the date of the bankruptcy filed.DMdlin" fOr Filing a Plan. Small

businesses that file for Chapter II have onlysix months co demonstrate that they have arealistic chance of successfully reorganizing.Those that can't will be liquidated, withtheir assets distributed [Q creditors. or thecases dismissed..

Singl, AIm Rtal £Sta" CastS. The billswould also clarify the circumstance underwhich a secured creditor can obtain stayrelief in a "single asset" case where the solesubstantial asset of the estate is real propercy.The bills provide that to avoid a lifting of astay that would allow foreclosure. the debror

must, within 90 days after filing the Chapter11 petition. commence paymenrs ro thesecured crediror in an amoum equal ro theimerest on the value of the secured creditor'sinterest in the real propercy. using appljcablenon default contract rates of interest.

The bills call for the Advisory Committeeon Bankruptcy Rules ro propose foradoption standardized djsdosure statementsand form plans for reorganization of smallbusiness debtors and adopt uniformnational reporting requirements. The billsalso contain numerous "technicalamendments" to make corrections in. and

clarification of, provisions of the Codeapplicable in Chapter 11 cases.

COIIIQII.ClI 01 1lef_1I COI_ casesConsumers with relatively high income

compared ro their unsecured debt willlikdybe required to file under Chapter 13 andmake payments for a minimum of five years.This may work well for many debtors, burfor others it takes away much of theincentive to file bankruptcy. Experts

anticipate thar many individuals willmanipulate their financial Status by reducing

their presenr income (temporarily quitting asecond job or refusing overtime) or byartificially inflating their debts in order

qualifY for relief under Chapter 7. Forindividuals with higher than averageexpenses (many of which would not be

counted in the means resting), the new

legislation may significantly hinder or

altogether eliminate their abilicy ro file forbankruptcy protection.

The effect of many of the new restrictions

intended ro make it more difficult to file for

bankruptcy will be that debror's attorneyswill be find themselves spending more timeand effort on behalf of their debtor client.The prediction is that this will result inhigher attorneys fees.

Most bankruptcy debtors. who currentlyavail themselves of the bankruptcy reliefoffered under Chapter 7. receive theirdischarge in less than six months. and can bein a posicion to establish reasonably goodcredit within two years after discharge.Under the new legislation the emire process.because of the requiremenr of financialmanagement training and for other reasons,will take longer. Additionally, many debtorsrequired to file under Chapter 13 wil1 notreceive their discharge for five years.

The legislation provides numerous

benefits to creditors. including increasedopportunities to object or get involved inthe bankruptcy process. Creditors willundoubtedly have more leverage to obtainpayments from debtors through bankruptcy.This may also mean that creditors will b~

more difficult to deal with outside ofbankruptcy.

If the bill becomes law, bankruptcy filingsare expected to soar in the six months beforeit goes inro effect. According to SamuelGerdano, executive director of the AmericanBankruptcy Institute. ancicipation of thelegislation contributed to a 17.5 percenr

increase in bankruptcy filings in the firstquarter of this year. He has alreadypredicted that the number of bankruptcyfilings will reach a record 1.5 million thisyear, primarily due to the slowing economyand high consumer debt.

Last year, 9319 Chapter 7 and 7322Chapter 13 case were filed in Askansas.Through July 31 of this year, 7658 Chapter7 and 4992 Chapter 13 have been filed.According to William Blevins, Clerk of theUnited States Bankruptcy Court for theEastern and Western Districts of Arkansas,Chapter 7 filings have increased markedlythis year. Notably. the biggest increase camein the month of March (1530 new Chapter13 cases were filed), which was, notinconsequentially, the same month theHouse and Senate passed their respective

bankruptcy reform bills.

1'11.1610. mill 2001 Tie ,Irlaml Lawj!r 19

Consequences 01 Relorm In SmallBusiness Cases

Business bankruptcies represenc a small

fraction of rotal bankruptcy filings, but the

proposed legislation is expected ro have a

dramatic impact on small businesses facingfinancial [fouble. SmaJj businesses that fiJe

for Chapter 11 reorganization have six

months to demonstrate they have a realisticshot of survival. Those that can't will be

liquidated, with their assets distributed to

creditors.

As recendy reported in the PittsburghBusiness Times, the legislation also "creates

so much administrative rigmarole" that it

will cOSt clients morc to file for bankruptcy,

said Charles Docter, a Washington. D.C.,anomey who has practiced bankruptcy law

for 40 years. He norcs, and many other

bankruptcy practitioners agree, that six

months is toO shorr of a rime for many small

businesses to rake care of their problems. Asa result, bankruprcy will be a much less

artractive oprion. Docter advises thar small

businesses should do a "preliminary

reading" now on how the changes would

affect rhem. "If you think you've got real

reorganization potential, you can do ir

outside of the bankruptcy court."

UkeIlhOOd 01 PassageViews on the likelihood that the

conference committee members will be able

to come up with a compromise bill that

President Bush will sign vary greatly.

According to Joe Rubin, director ofcongressional affairs for the U.S. Chamber

of Commerce, which suPPOrtS rhelegislation, the differences between the

House and Senate bills are smaller than they

have been in previous years and primarilyconcern matters only "rangentially related"

to bankruptcy. Unless already resolved

issues are reopened, "it should be a pretty

quick and painless conference," Rubin said.

Notably, however, Rubin mentioned the

homestead exemption as one of those issues.

This issue is expected to be the mOSt

contentious issue conferees will address.

Proponents of the bill view Senator

Joseph Siden's participation on the

conference committee as a sign thar Senate

Majoriry Leader Tom Daschle is serious

about" passing bankruptcy reform. However,

it is thought that Daschle's selection of

conferees could foreshadow rrouble. Three

of the Democrats, Durbin, Feingold, and

10 The ,Irkansas LaWler \\\fw.arkhar.roo

Kennedy, voted against floor passage of

H.R. 333. Dasch!e had originally planned

to appoint only four Democrats, but added

more at rhe last minute. Due ro the

participation of several Democrats who

voted against H.R. 333 on the conference

committee, there is specuJation thar creatinga "workable" bill will become more difficult,

if nor impossible.

According to Congress Dflily, Senator

Leahy said that he would support the

Senate-passed bill in conference and in

subsequent votes. Leahy said he plans tofight in conference ro preserve the Senate

provision thac would place a $125,000 cap

on homestead exemptions. The Senare

voted to allow debrors ro shield only

$125,000 of their home equity in response

to concerns that some wealthy individuals

are abusing the bankruptcy system byputring their assets into multimillion dollar

mansions in states such as Florida, wherehomes are exempt from creditors' claims.

The House bill leaves homestead

exemptions up to the states, unless the home

was purchased less than rwo years before thedebtor filed for bankruptcy. In that case, the

homestead exemption would be capped at$100,000.

Senators Kay Bailey Hutchison (R-Texas)

and Sam Brownback (R-Kan.) voted against

c10rure due to this provision. Texas and

Kansas, along with Florida, are among the

five states with an unlimited homesread

exemption. The homestead exemption issue

is "explosive," says Travis Plunkett, alobbyist with the Consumer Federation of

America, which opposes the bankruptcyreform legislation.

President Bush has stated that he opposes

the Senate bill's cap bur otherwise suPPOrtSbankruprcy reform. In an August 1st letter

to all 19 House conferees, the Bush

administration made its position clear and

urged the conferees on the bankruptcy

reform bill, H.R. 333, to suppOrt the HOllse

version of the homestead exemption and

oppose the Senate language. Specifically, the

letter srates: "The administration strongly

opposes the Senate passed language

regarding the homestead exemption and

strongly urges the conferees co return to the

bipartisan compromise language that was

adopted by the last Congress."

Samuel Getdano, executive director of

the American Bankruptcy Instirute, predicts

that House-Senate conferees likely will work

our a compromise on the homestead

exemption that will address the worst cases

of abuse. "The stars may finally be in

alignment," Me. Gerdano said, "although

we've said that before."

The purpose of the House and Senate

bankruptcy reform bills is to reduce

bankruptcy filings and increase payments to

creditors. However, both bills contain a

number of provisions that have the potential

to impair the overall effectiveness of the

consumer credit system. For example,

creditors currently willing [0 cooperate in

voluntary arrangements with debtors

because the debtors may othenvise may me

a Chapter 7 bankruptcy may be lessaccommodating if that avenue is eliminated.

The longer minimum plan length in

Chapter 13 may also increase the number of

plans that default or filiI. The legislation will

likely lead to greater court involvement and

generate additional expense for the courts

and the parries involved in the bankruptcy

process. At this point, the extent to which

the changes will achieve the desired goals or

create undesirable results ca.nnot be fully

known. What is clear is mat, if the

conference committee is able to come up

with a compromise bill and the President

signs it, the firsr groups to benefit from the

legislation will be those providing

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Who are Young lawvers andwhat do they do;J

bV TIm Cullen

Young lawyers are everywhere. JUSt lastweek a whole new crop passed the bar

exam. Young lawyers are trying cases,writing appeals. and practicing law in everycorner of the srate. However, there is alsoanother group of }'oung Lawyers. TheseYoung Lawyers are also engaged in thepractice of law. Bur what makes themdifferenr is that they have banded cogetherto form a group to:

Stimulate the interest o/young members of

the bar of Arkansas in the objet" of theArkansas Bllr Association and to provide suchyounger members of the bar with n moreifftetive mean; to participate in activitiesdirected toward Improving theadministration ofjustiu and promoting thepublic weljitre. 1

The Young Lawyers Section does noccharge dues beyond the regular Associationdues. The section membership includes allmembers of the Association "under the ageof 36 or who shall have been admicred to

the praCtice of law five years Of less."2So what really makes Young Lawyers

differem from young lawyers? AJlow metdl you some of the differences.

YtJUng Lawyas meet at leaS[ fouf times ayear co condUCt their Section business.Most recendy. Young Lawyers conducted aleadership retreat in Lirrle Rock,encompassing two days of meetings,brainstorming, and social events. TheYoung Lawyers reviewed their activitiesover the prior year, and set their goals for

the coming year.Young Lawyers have a longstanding

tradition of helping the Bar Associationput on one of the best CLE programs yearin and year ouc. Mark your calendar forBcidging the Gap, a three-day CLEprogram in Little Rock on November 1-3.Bridging the Gap is geared, as the namesuggestS, to new lawyers. The presenters

are experienced lawyers who always givevaluable insights. Bridging the Gap is alsoa bargain for new lawyers, with incentivepricing for recent admirrees. But even atfull price, Bridging the Gap draws its shareof veteran lawyers because it offers some ofthe best CLE programming of the yearcondensed into a three day format. YoungLawyer co-chairs Mark Hodge and BrendaStallings promise this year's program willlive up to its reputation.

Young Lawyers have a hand in many ofthe handbooks and informationalmaterials published by the Bar Associationfor both lawyers and the general public.Most recently. Young Laywtrs were proudof the accomplishments of DustinMcDaniel and Chris Gardner, both ofJonesboro, who took one of ourhandbooks for the general public to thenext level. Dustin and Chris, with the helpof their committee and the hard work ofDr. Robert Baum at Arkansas StateUniversity, cook the Consumer LawHandbook that the Association haspublished to aid consumers in basic legalissues and transactions, and translated enespanol (that's "in Spanish," and thac's theextent of my own Spanish). Conracr theAssociation for free copies of the SpanishEdition of the Consumer Law Handbook to

have it available in your office and yourcommunity.

}'aung Lawyers continue to lead the legalrelief effort when disaster strikes. Former1'Otmg Lawyers chair Baxter Sharp ofBrinkJey was the leader in eStablishing a

comprehensive plan for how the Bar canmobilize to help victims with their legalissues when the inevitable Arkansastornado, ice Storm, or other disasterStrikes. Watch for progranlS coming soonthat will offer basic training in how toassist disaster victims. We need your helpby becoming a trained volunteer so the Bar

will have the human resources to respondin these important times of need.

Ytmng Lawy~rs are particpating in LawWeek acrivities in their communities acrossthe state. Contacr Young Lawyer ElizabethThomas, who is chairing our Law Weekcomminee, to find OUf how yourcommunity can get involved with ourposter and essay contests for school kids.

Young Lawyer Mark Hodge and a stronggroup of volunteers have been active in aLawyers for Literacy campaign at twOLittle Rock schools. The Young Lawyersspend one-an-one time wich school kjdswho are falling behind in reading. Theprogram has paid tremendous benefits tothe children, both in their reading skillsand in the mentoring relationship theyoften develop with their Young Lawyertutors. Mark has developed some materialsand suggestions for how this program canbe starred in other schools andcommunities. Contact Mark, or your localVolunreers in Public Schools office, fordetails on how you can help.

Young Lawyer David Johnson may becalling you soon wich a question everylawyer dreads: "What is the starure oflimitations for a cerrain cause of action?"David and his committee are updating theAssociation's Statute of LimitationsHandbook to be sure it is currenr andcomprehensive. Once the revision iscomplete, you may sleep better at nightknowing thar you can find the applicablestatute of limitations for most actions youmight encountet in this valuable handbook.And ifyou find yourselfspending more timeon your compucer. and less time loolcing atbooks, you win be pleased to know thar weintend to offer the Statute of LimitationsHandbook on CD-ROM.

ns SICIlIa ...,Continued on page 56

fol.l6 110. ,111'aIl2001 1'be "rhusa! I.awler 21

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it The Ilrkmas I,aw!er www.arkhar.cII

Teaching Old Dogs New Tricks:The 2000 Amendments to the

Federal Rules ofCivil Procedure

About the Authors

"caveats" about the new methods of federalcourt practice in Arkansas - and maybe easethe pain of change a lirtle bit, in the process.I. THE INITIAL SCHEDULINGORDER, RULE 26(f) CONFERENCE,INITIAL DISCLOSURES, RULE 26(f)REPORT, RULE 16 SCHEDULINGCONFERENCE, AND FINALSCHEDULING ORDER.

The purpose of the "new" rules is toestablish a format by which scheduling andcase management, and information centralto the parties' claims and defenses, areestablished and disclosed at the early sragesof the case. Both federal district CourtS inArkansas have adopted a series of LocalRules to facilitate thar process.

This part of the article presents, inroughly chronological order, rhe steps anddeadlines created by the rules.(aJ The Initial Scheduling Order.

Both of the Arkansas federal districtcourcs have adopted Local Rule 16.1, whichrequires the issuance by the Court of theIni[ial Scheduling Order ("ISO").

The ISO is issued after an appearance ismade by at least one defendant.

Tip: If you represem a defendant in amultiple-defenda.nr case, you shouldcheck with the court clerk (or thePacer docker on the inrernet) to

derermine whether any of rhe otherdefendams have made an appearanceand thus whether [he ISO has alreadybeen issued. At this time, the derks'offices are issuing the ISO only once­to rhe plaintiff and to the defendantwho makes the firsr appearance.The ISO contains [he following

important dates:Deadline for Rule 26(f) conference;

• Deadline for Rule 26(f) repore;Proposed trial date;

• Date for Rule 16(b) conference;• Dare for final scheduling order.(bJ The Rule 26(f) conference.

The Rule 26(f) conference among

rhe methods we all knew and werecomfortable with. The United StatesDistrict Courts for both the Eastern and theWestern Disrricrs of Arkansas chose to oprout. In identical orders5 the courtS rejectedthese changes, finding them "unnecessary,""unduly burdensome," and "working anunnecessary hardship and potential increasein litigation costs on litiganrs andattorneys[.]" Both CourtS dismissed thelimits on the number of depositions andinterrogatories as "blindly and withoutconsideration of the requiremems of thecase ar hand, limir[ing] such discovery."

Effec[ive December I, 2000, [he Ruleswere amended to delete the "opr-our"

provisions, thereby mandating uniformcompliance with the "new" Rules foreverydisrricr in the coumry. Also, some ofthe Rules were amended to meer concernsand problems that came ro light during theprior seven years.

With this article, OUI hope is ro provideuseful informarion, practice tips, and a few

byTroy A. Price &

Charles l. Schlumberger

Troy A. Price and Chacles L. Schlum­berger are partners with Wright, Lindsey

&Jennings LLP inLittle Rock. Priceis chair ohhe firm'sAppellate AdvocacyPractice Group andan honor graduateof the Universiry ofArkansas at LittleRock Law School.Schlumberge[ is amember of thefirm's RetirementPlan Admin­istration Comm­ittee and received alaw degree fromVande[bil[Universiry in 1979.

Change. Everyone resists it, p3rcicularlylawyers. But change we muSt if we practicein Arkansas's federal district eouns. The1993 amendments to [he Federal Rules ofCivil Procedure inrroduced profoundchanges ro pre-trial practice. Particularly.the 1993 amendments introduced therequirement of "initial disclosures" - theexchange. at the early stages of me case, ofinformation regarding potential wirnesses.and the identification and production ofpertinent documents. l Coupled with merequiremclH of initial disclosures werelimitations on the number of depositionsand interrogatories that a parey could takeand propound.2 And pardes were furtherprohibited from engaging in any eype ofdiscovery until after conferring regardingdiscovery needs and scheduling.3

Those amendmems also concained "opt­out" provisions4 that enabled each district todecide whether to reject these novel (and to

some, alarming) procedures and adhere to

loU6 ~t.l/hIl1001 ne.lrkllSaJ 1,I~Ter 2l

counsel for the parries must be held by thedeadline stated in the ISO. Usually, this willbe scheduled ro occur abour 30 ro 45 daysafter the issuance of me ISO. Under Rule26(d), no discovery may be conducted byany party until after the Rule 26(f)conference is held.

The marrers co be discussed at the Rule26(f) conference are set forth in Rule 26 (f)and in Local Rule 26.1 and include:

The nacure and basis of claims anddefenses;The possibilities for early settlement orresolU[ion of the case;Arrangements for Rule 26(a)( I)disclosures;

• A discovery plan, including discoverysequence, deacUines, prOtective orders,changes in discovery limitations imposedby me rules, a.nd other marrers set forthin Rule 26(f)(I) - (4) and Local Rule26.1; andThe procedures for disclosing electronicor computer-based media, as set forth inLocal Rule 26.1 (4).

CAVEAT: Any objections to making theinitial disclosures required under Rule26(a)(l) must be stated both at the 26(f)conference and in the 26{f) report;otherwise, those objections are waived.Fed. R. Civ. P. 26a)(I). The typicalobjection is that a threshold dispositivemotion, such as a Rule 12{b) motion or amOtion to compel arbitration, will be madeor is pending, and if granted would makethe disclosures unnecessary.(c) The Rule 26(a)(l) disclosutes.

There are eight rypes of cases that arespecifically exempted ftOm the disclosurerequirements. They are enumerated in Rule26(a)(I)(E). Unless your case falls withinone of those exemptions, your Rule 26(a)( I)disclosures are to be made at, or within 14days after, the Rule 26{f) conference, unlessan objection is stated at that conference andincluded in rhe Rule 26(f) report. (SeeCaveat, above.) If your parry is joined afterthe Rule 26(f) conference, the disclosuresare ro be made within 30 days after beingserved or joined, absent a stipuJation orcourt order to me contrary.

The information to be disclosed is setforth in Rule 26(a)( I)(A)-(D) and includesthe followi ng:• The names, addresses and telephone

numbets of individuals (other than thoseused solely for impeachment) havingdiscoverable information that thedisclosing party may use in support of

2·1 TI6 Mklnsa! l,aWj61 www.arkhar.CII

its claims or defenses, and the subjectmarrcr of that information;

• A copy of, or a description by categoryand location of, documents, daracompilations, and tangible items (otherthan materials used solely forimpeachment) in the possession, custodyor control of the disclosing parry and thatthe disclosing party may use in supportof irs claims or defenses;

• A computation of any category ofdamages claimed by me disclosing parry,and making available for production allnon-privileged materials on which thecomputations are based, includingmaterials bearing on the nature andextent of the injuries suffered;Production of any insurance policy thatmay provide a source of payment for anyjudgment, whether direct or byindemnity.

TIPS AND CAVEATS:The boldfaced language marks asignificam departure from the 1993disclosure requirements. Under theoriginal provisions, a parry was requiredto disclose wirnesses, documents andthings which were "relevant to the factspleaded with particularity III thepleadings." This language placed partiesand their attorneys in a quandary; underthe strict letter of this language arguablythey were required to disclose to theopposition not only witnesses andmaterials that supported their claims ordefenses, but also witnesses and materialsthat were detrimental to their claims ordefenses. The 2000 amendments to Rule26(a)(I)(A) and (B) now make clear thata parry is required to disclose only thoseindividuals and materials that it intendsto use to support irs claims or defenses.Thus detrimental witnesses and materialsstill must be ferreted out throughtraditional discovery.The disclosures must be based oninformation reasonably available to theparry at the time of disclosure. Rule26(a)(l) expressly provides thatdisclosures are not excused for failure tocomplete investigation, or because otherparries have failed to make theirdisclosures.Under Rule 26(e), A party is under a dutyto supplemenr its initial disclosures (aswell as expert and pretrial disclosuresunder Rule 26(a)(2) and (3)).

• Sanctions. Under Rule 37(c), unless thefailure to make Rule 26(a) disclosures is

"harmless," me undisclosed testimony orinformation is to be excluded fromevidence.Rule 26(a)(I) disclosures are not filedwith the court.

(d) The Rule 26(f) report.The deadline for filing the Rule 26(f)

report is contained in the ISO. The items robe included in the Rule 26(f) report areenumerated in Local Rule 26.1 and include,among other things, deadlines for makingRule 26 disclosures (including initialdisclosures and expert disclosures); any needto deviate from limits on discovery imposedby the rules (such as the number ofdepositions and interrogatories); any neededprotective orders; sequencing and deadlinesfor joining parties and amending pleadings,for discovery, and for filing dispositivemotions; objections to the proposed trialdate; and any objections to making meinitial disclosures required under Rule26(a)(I). Again, any objection to Rule26(a)(l) disclosutes must be made at theRule 26(f) conference and stated in theRule 26(f) report.

The Rule 26(f) report should be a joinrsubmission unless me parties disagree onany points to be comained in that reporr. lnthat case, separate Rule 26(f) reports shouldbe filed.(e) The Rule 16 Scheduling Conferenceand the Final Scheduling Order.

The ISO will include a dare for a Rule16(b) scheduling conference, which will bescheduled on a date after the deadline forthe Rule 26(f) reporr. If the Rule 26(f)report contains nothing requiring theCourt'S artention or action, then the RuJe16 scheduling conference will not be held.After the scheduling conference, or if one isnot held, the Court will then issue the FinalScheduling Order ("FSO"). The FSO willcontain the trial date, the deadlines foradding parties and amending pleadings, theexpert disclosure deadline, the discoverycutoff, the dispositive motion deadline, andthe deadlines for filing pre-trial disclosuresheets and objections mereta, exhibit lists,jury instructions, trail briefs, and findings offact/conclusions of law.

TIP: To avoid a FSO that mightdeviate from the parties' agreemenrs,consider preparing and submitting aproposed FSO for the Court's enrry.

II.ATTORNEY- AND COURT­MANAGED DISCOVERY AND OTHERLIMITS; FILING REQUIREMENTS;

1'01. 36 ,10. ·I/fall 100 I n" ,Irknsas LaWler 1\

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EXPERT DISCLOSURES, PRETRIALDISCLOSURES, AND SANCTIONS.(a) Attorney- and Court-ManagedDiscovery.

AnOther of the morc significant changesunder the "new" rules is the distinctionbccwcen anomer- and court manageddiscovery conrained in Rule 26(b)(l).Under that rule. the scope of discovery inwhich parries may engage without courtsupervision IS limited (Q "discoveryregarding any mancr, not privileged, that isrelevant to the claim or defense of anyparty[.]" Otherwise, "For good cause, thecourt may order discovery on any marterrelevant to the subject matter involved inthe action."

Thus Rule 26(b)( I) esrablishes adichotomy between "claim-Dr-defense"discovery and "subject matter" discovery.Unfortunately, the difference is hard to

discern, and the comments to the rule offerlittle concrete guidance:

The Committee intends that theparties and the court focus on the actualclaims and defenses involved in theaction. The dividing line betweeninformation relevam [0 the c1ajms anddefenses and thar relevam only to thesubjecr matter of the acrion cannor bederermined wirh precision. A variety ofrypes of information nor directly perrinenr[0 cite incidenr in suir could be relevant rorhe claims or defenses raised in a givenaction. For example, other incidems of thesame rype, or involving the same product,could be properly discoverable under therevised srandard. . . .The rule changesignals to the court that it has theauthority to confine discovery to theclaims and defenses asserted in thepleadings, and signals to the parties thatthey have no entidement to discovery todevelop new claims or defenses that arenot already identified in the pleadings." ... When judicial intervenrionis invoked, the accual scope of discoveryshould be determined according [0 theteasonable needs of the accion. The counmay permit broader discovery in a particularcase depending on the circumstances of thecase, the nature of the claims and defenses,

and the scope of discovery requested."(Emphasis added.)6

Perhaps the better way to articulate thisrule change is ro say that it is designed to

forestaIl overbroad, "fishing expedition"

discovery that can needlessly protract a caseand cause undue burden and expense to the

16 The '\rkmas I,alrler Il"IlImkbmom

panies. The touchstOne of the rule is thecase's pleadings: the scope of attorney­managed discovery should not exceed theparameters of the facts, claims and defensesspecifically set forth in the pleadings. Forexample, if a plainrifFs claim against aIawnmower manufacturer in a productliability anion is that he was injured as aresult of a defectively attached blade on aspecific model, attorney-managed discoverywould not permit him to inquire either inroother, unrelated rypes of malfunctions withrespect to that model, or inro bladeattachmenr malfunctions in other modelsmade by the manufacturer.

The dichotOmy established under Rule26(b)( 1) may well create more discoveryskirmishes than it avoids. In any event, theprotection is there if attorney-manageddiscovery becomes excessive.(b) Other limits on discoveryinterrogatories, depositions, and thelimitations of Rule 26(b)(2).

Under Rule 33(a), absent leave of court aparry is limited to 25 interrogatories"including all discrete subparts." UnderRule 30(a)(2)(A), each side in a case - noreach parry - is limited to ten depositions.Thus in multi-defendam cases, thedefendants should work together 111

determining which depositions arenecessary. Additionally, under Rule30(d)(2), each deposition musr becomplered within one day and may notexceed seven hours.

Under Rule 26(b)(2) the Court maymodify these limitarions. The panies canmodify the ten-deposition limit by writtenstipuJation. A written sripulation or leaveof the Court is also required in order to

permit a parry to serve more than 25interrogatOries. Counsel who desire to takemore than ren deposirions per side or roserve more than 25 interrogatories per parryshould raise the issue ar the Rule 26(f)

conference and include a repon of thepanies' posirions in the 26(f) report. A

parry seelcing extra interrogatories should beprepared to explain to the district judge whythey are needed, and perhaps to produce theextra interrogatories for the coun'sconsideration, as recently required by oneEastern District judge. A lawyer who seeksextra depositions should be prepared roidentify the persons soughr to be deposedand state to the district coun what thelawyer believes will be accomplished in theexrra depositions.7

Rule 26(b)(2) also empowers the courts

to intervene and limir discovery if (i) thediscovery is unreasonably cumulative ~rduplicative, or is obtainable from someother source that is more convenient or lessexpensive; (ii) the party already has hadample opponunity to obtain theinformation by other discovery; or (iii) theburden or expense of the discovery isoutweighed by its value, in Ijght of the needsof the case, the parties' resources, and itsimponance . the issues. (Again, querywhether this... provision only invites morediscovery-related litigation.)(c) Abolition of discovery filingrequirements.

Under Rule 5(d), no discovery materialsof any type are to be filed with the COUrt.This includes depositions andinterrogatories, requests for production,requests for admission and responsesthereto. Additionally, the comment to the2000 amendment ro Rule 5(d) explains thardeposition norices under Rule 30(b) andobjections to written discovery are nor to befiled.'(d) Expert disclosures.

Rule 26(a)(2) requires each party rodisclose any expert who may be used to

present evidence under Fed. R. Evid. 702,703 or 705. Subparr (C) of this rule sraresthat disclosures of primary experts must bemade at least 90 days prior to trial, withrebuttal experts to be identified within 30days after the disclosure of the primaryexperts.TiP: The deadlines contained in the Ruleoften will not mesh with the discovery planrhe parties establish ar rhe Rule 26(f)conference. Accordingly, the attorneysshould develop expert disclosure deadlinesas part of that conference and include themin the Rule 26(f) report, so that they will beadopred in the FSO.

Nore thar subpan (B) of Rule 26(a)(2)defines an expen to include nor only non­parry "hired guns," but also anyone "whose

duties as an employee of the partyregularly involve giving experttestimony." This subpart also requires awritten repon prepared and signed by theexpert containing the followinginformation:• A complete statement of all opinions to

be expressed and the basis and reasonstherefor;

• The data or information considered bythe expert in forming the opinions;

• Any exhibits to be used as a summary of.or suppon for, the opinions;

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required under Rule 26(a)(I), (2) or (3)or if it fails to supplemem thosedisclosures undet Rule 26(e);

• Rule 37(g) exposes the parry and irsattorney to sanctions for failure to

participate in the development andsubmission of a discovery plan underRule 26(f).Addirionally, Rule 37(c)(I) was

amended in 2000 to specifieally includesanctions for failure co seasonably amendor correct answers to prior writtendiscovery (including requests foradmission), as required under Rule26(e)(2).

CONCLUSIONThis article does not provide all of the

information one will need in order tocomply wirh the 2000 amendmenrs to theFederal Rules of Civil Procedure. There isno substitute for reading the rules (andparticularly the new Local Rules) and casesinrerpreting them. Patience and leniencewill be the greatest virtues as old dogs learnthese new tricks.I. Fed. R. Civ. P. 26(a)(I)-(4) (1993).2. Fed. R. Civ. I~ 30(a)(2)(A), 31 (a)(2)(A),

33(a) (I 993).3. Fed. R. Iv. P. 26(d),(f) (1993).4. See rules cited in notes I - iii.5. U. S. Disl. CI. W.o. Ark. Gen'l O,d" No.

25 (Feb. 2,1994); U.S. DiS!. Cr. E. D. Ark.Gen'l O,der 42 (Feb. 22, 1994).

6. Comments, 2000 AmendmentS, Fed. R.Civ. P. 26(b)(1), ,eprinted in FEDERALCIVIL PROCEDURE AND RULES,(West 2001 ed.) at 157.

7. See, e.g., Bell v. Fowl", 99 E3d 262, 271(8th Cir. 1996) (district court did not abuseits discretion in refusing fO allow additionaldepositions where parry did not explainneed ror them or inrormation sought.

8. Comments, 2000 Amendments, Fed_ R.Civ. P. 5(d), reprinted in FEDERAL CIVIL IL-----------------'PROCEDURE AND RULES, (West 2001ed.) at 79.

• The qualifications of the wimess,including all publicarions authored bythe expen in the past ten years;

• The compensation co be paid for theexpen's services, including testimony;A lise of all eases in which rhe experc hastestified at trial or in deposition for thepast four years.All disclosures made under Rule

26(b)(2) are subjecr ro thesupplementation requiremems of Rule26(e)(I).OIVEAT: Rule 26(e)(l) specifies thar bothexpen repons and expen depositiontescimony are to be supplememed, ifnecessary, by the time that the pretrialdisclosures are made under Rule 26(a)(3)(next diseussed).(e) Preuial disclosures.

Rule 26(a)(3) and Local Rule 26.2combine to establish the pretrialdisclosures ro be made by each parry.These disclosures are largely the same asthose that were made in the former PretrialConference Information Sheet that theArkansas federal district courts used inpast praerice. The FSO will establish rhedeadline for making the pretriaJdisclosures and objections thereto.01VEATS, Under Rule 26(a)(3), allobjections [Q pretrial disclosures,including objections co the use ofdepositions and co the admissibility ofdocuments and demonstrative evidence,must be made within 14 days after thedisclosures, or they arc waived. The onJyexception to the waiver is for objectionsmade under Fed. R. Evid. 402 and 403, orfor other objections not made which areexcused by the court from good cause.Also, any supplements co an expert reponor expen depositions are to be made by thedeadline for the Rule 26(a)(3) pretrialdisclosures.

Local Rule 26.2 enumerates theinformation to be provided. Under thatrule, wimesses and exhibits are to beidentified in twO separate categories: thosewitnesses that the parry expects to caU, andthose that it may call; and those exhibitsthat it expects to offer, and those that itmay offer.(f) Sanctions.

With the adoption of the "new" rules,attorneys should pay heed to rheadditional sanctions applicable under Rule37:

Rule 37(c) exposes a parry co sanctionsif it fails to make the disclosures

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TIe ,Irtlllll La")rr "1I11'.artllr.C1118

ContentsA Message from the President 3

Profile of the Arkansas Bar Foundation 4

Foundauon Funding 5

Commitment to Education 5

Scholarships 6

Memorial Gifts 7

Fellows of the Arkansas Bar Foundation 8, 9

Donors 10

Special Project Grants 10

Recogn izi ng Excellence I I

Board of Direcrors 12

2

A Messagefrom the

President of theFoundation

Dear Fellows and Friends of the Arkansas Bar Foundation:

With pride and pleasure. I presenc you the annual repOft of the Arkansas Bar Foundation for the

2000-200 I year. I hope that you will rake a few moments [0 review it.

The Foundation administers 38 endowmenc scholarships with assets totaling approximately

$610,000. This year we have awarded 22 scholarships to deserving law smdencs at the University

of Arkansas School of Law in Fayetteville and 22 scholarships to students at the UALR William H.

Bowen School of Law. We were delighted to have many of these scholarsnip recipients at our mid-year

dinner.

This year we have increased the number of Sustaining Fellows by 19. ftu of this writing we have

190 Sustaining Fellows whose additional contributions aid significantly in our operations.

A tremendous amount of time has been spent by a joint committee of the Foundation and the

Arkansas Bar Association concerning issues related to the Bar Center. The committee, acting under

the wonderful leadership of Bill Bowen, Frank Sewall and Dick Williams, has been wtesrling mightily

with many thorny issues of whether, how and at what cost the Bar Center will be kept and renovated.

It will continue to serve the Foundation on these issues and needs the understanding and continued

suppot[ of all of rhe Fellows and the Bat Association.

The future leadership of the Foundation is in excellent hands with Tom Overbey, the presently

serving Vice-President (and President-Designate), and Teresa Wineland, the present Secretary and

future Vice-President/President Apparent.

It has been a great honor to serve as your President. I believe that the Foundation has fulfiUed its

commitment during the last year to support the educational needs of our universities and the

improvement of the administration of justice. Accomplishment of our goals has only been possible by

the outstanding effort of our board, the committees, Ann Dixon Pyle, our executive director and her

assistant, Joyce Bobbitt. The board of directors and committee members have labored long and, many

times, without appropriate recognition for their faithful service. We should all take time to thank

them.

1 hope that you will continue to support the Foundation with your time, effort and gifts.

lliii-Donis B, Hamilton, President

Arkansas Bar Foundation

3

Profile of theArkansas BarFoundation

THE ARKA SAS BAR FOU DATIO wasestablished in 1958 to support efforts at improvingthe administration of justice. The Arkansas BarFoundation, which is classified as a tax exemptorganization under Section 50 I (c) (3) of theInternal Revenue Code, is a charitable organiz,,1tioll

wim a mission ro promote educational, literary,scientific and charitable purposes which are morespecifically described as follows:

I) To improve and facilirare the administrationof justice.

2) To promote legal study and research,diffusion of knowledge of the law andcontinuing education of lawyers.

3) To publish and distribute addresses, reports,treatises and other literary works on legalsubjects and to acquire. preserve and exhibitrare books and documents, objects of art anditems of historical interest having legalsignificance or bearing on administration ofjusnce.

The Arkansas Bar Foundation funded the buildingof the Arkansas Bar Center, located at 400 WestMarkham, Little Rock, Arkansas, which has beenme location of the Foundation and the Associarionsince 1974. The building is wholly owned by theFoundation, but space is rented by UALR andother offices. The Bar Center has a formal

conference room which is frequently used bylawyers from around the state for depositions andmeetings. The open lobby area is a perfect site forreceptions and larger meetings.

The Arkansas Bar Foundation is governed by aneighteen-member Board of Directors. The Board iscomposed of th ree lawyers elected by theFoundation members from each of the five batdistricts plus the Arkansas Bar AssociationPresident, the Immediate Past President of theFoundation and the Chair of me Trust Committee.The Officers of the Foundation are the President,Vice President and ecretary-Treasurer, who areelected by the Board for one-year terms. Membersof the Board are elected at the annual Foundationmembership meeting.

The seventeen-member Trust Committee iscomposed of experienced lawyers who serve six­year terms. 1\'10 are appointed by each Presidentand confirmed by the Board. Other members arethe Foundation Officers and the Deans of the twoArkansas law schools. The Trust Committeemanages me Trust Fund to generate income for thegood works of the Foundation. Only interestearned on the Trust Account is used. A separateoperanng account pays the cost of running theFoundation.

ARKANSAS BAR FOUNDATIO400 WEST MARKHAM

LITTLE ROCK, ARKANSAS 72201(501) 375-4606 • (800) 609-5668

4

Foundation FundingFor fiscal year 2000-0 I, the Arkansas Bar Foundation approved grams, scholarships and program

allotments of benefit [0 the profession and the public. Scholarships and projects of the Arkansas BarFoundation are financed through investment income from the trust fund which has been built bycontriburions and Fellows' pledges and is used solely for the good works of the Foundation. ThisilJusrration reRects allocations for the 2000-0 I year.

...P .....------ Awards/Recognition

...-"'<----- Law-Related Education Programs

Foundation Merit Scholarships andFoundation Professorships

Special Projects Grants

Endowed Scholarships

'The Arkansas Bar Foundarion's fiscal year begins on July I of each year and ends on June 30.

1.5%

11%

20.5%

33%

34%

COMMITMENT TO EDUCATIONThe Arkansas Bar Foundation contributes

support to the two Arkansas law schools. Inaddition to the many endowed named law schoolscholarships and the Arkanas Bar FoundationMerit Scholarships awarded to deserving scudemsat each school, the Foundation also approvedfunding in the roral arnounr of $24,350 in the2000-01 truSt budger for the following: ArkansasBar Founcladon Professorships; Law Scudem MootCourt Competition; and, Law Review writingawards. The Arkansas Bar Foundation hasestablished an Arkansas Bar FoundationProfessorship ar the University of Arkansas Schoolof Law and the UALR William H. Bowen Schoolof Law. One outstanding faculty member fromeach school is selected to hold this designation of"Arkansas Bar Foundation Professor of Law" andreceives a salary supplement upon this designation.The criteria for selection is excellence in teaching;excellence in scholarship in Arkansas Law; and,significant contributions to serving the Bench andBar of Arkansas.

5

ARKANSAS BAR FOUNDATIONPROFESSORS OF lAW

Professor W. Dent Gitchd,UALR William H. Bowen School ofLaw

Professor Robe" B LeOar,University of Arkansas School of Law

Other program allocations include fundingappropriated for the Arkansas Bar Association andArkansas Bar Foundation Annual Awards. TheArkansas Bar Foundation Trust Committee, whichadministers an endowment fund for theConrinuing Legal Education (CLE) Departmenr,approved funding in the amounr of $8,430 ro beutilized to off-set COstS for three programssponsored by the Arkansas Bar AssociationConrinuing Legal Educarioll (CLE) Departmenr ­the Bridging the Gap Seminar; DiversityPresentations at 2001 Mid-Year and AnnualMeetings; and, Basic Computer Training.

ScholarshipsEach year, the Arkansas Bar Foundation awards approximately 35 endowed law school scholarships to students atthe University ofArkansas School of Law and the UALR William H. Bowen School of Law. In addition, the F.1cultyof each of me cwo law schools are allorted three scholarships for students who show potemial and who are deservingof financial award. These: Arkansas Bar Foundation Merit Scholarships are funded by the Foundation in the rotalamoum of 57.500 and have produced fine lawyers who otherwise may not have been able to afford the cons of lawschool without the Foundation's assistance. Scholarship recipients were honored at the Arkansas Bar FoundationMid-Year Scholarship Dinner which was held at The Little Rock Club on Februaty 2, 2001.

UNIVERSITY OF ARKANSAS AT FAYETTEVILLE SCHOOL OF LAW 2000-2001 SCHOLARSHIPSSCIIOLAItSHII' AWARDEDArkans:u Bar Foundation(Tn honor of Sebastian Counry Bar, U.M. Rose. Mike Gorman & Edw.ud L Wright)Arkansas Association of Women Lawyers (In honor of RUIn Huskey Brunson)J~ c. BarrenBogIe·SharpR.. A. EiIOOIl. Jr.Vince.nt W. Foster. Jr.Friday, EJdr«lge & ClarkEdward lesterHorace H. McKenzieJudge John E. MillerCol. C. E. RansickRather, Beyer & HarperThe Shackleford ScholarshipJudge \Villiam OvertonJustice George Rose SmithSmith, Stroud, McClerkin Dunn & NunerDavid SolomonM. JdTSmrling'C. It WarnerHarry P. WarnerIkmard & Bud WhetstoneJudge Henry WoodsJustice Thomas Clark TrimbleArkansas Bar Foundation

(Merit Scholarship)

Jennifer Jackson

Bar~tt DeaconJason Fulmer

Erika. BoudreauxGlroline CurryKeith Jefferson

Dar~1I Brown. Jr.Ashley L Rodgers

lUy SchlogdSt2cie WalrersCurtis Marsh

Matthew ShepherdKelly Keton

Michael RobbinsWill Jones

Mary McBride

John PerkinsSeth Ward

TelUa Mazze.1l0Caroline Curry

Holly AdeeBrandon Gue

Allyson KennenMark Lewis

REoriENT

Anne Perrigo

Emily Abbon

Kimberly Miller

Abrahm SmithJames Cook

Heather EzellChad Horner

Erin VineuPatti Stanley

Leeland JonesErika Montgomery

Laun ClaytonDavid Duke

athan MorrisBrandon LatK'n

Robyn AllmendingerDavid Jones

Jennifer PierceDeanna GnvesJonathan RossLeslie Garren

Michael YoungChad Avery

Erika. MontgomeryJory Shodl

Robert WalkerAnne Perrigo

Robyn AllmendingerArlene Rusch

Amy Dunn

Andy AdamsDeLeith GossettJory ShodlDavid Duke

·\Vill be awarded in the spring

E. Ch:ulcs Eichenbaum

R. A. Eilbon. Jr.Judge John A. FoglemanFriday, EJdredge & ClarkJudge J. Smith HenleyJustice J. Frank HoltJames H. Larrison. Jr.Edward LesterBrian MacMillanCol. C. E. RansickRather, ~r & Ha.rpt':rRose Law FirmU.M.R=C. It WarnerHarry P. Warne.rBernard & Bud WhetstoneRoxanne Tomhave WilsonJudge Henry WoodsArkansas Bar Foundation

(Merit Scholarship)

UALR WILLIAM H. BOWEN SCHOOL OF LAW 2000-2001 SCHOLARSHIPSSatOlARSlur AWARDED

Arkansas Ibr Foundation(In honor of Sdnstian Counry Bar, U.M. ~, Mik(: Gorman & EdW:lrd L Wright)Arkansas Association of Women Lawyers (In honor ofRmh Huskry Brunson)Guy Amsler, Jr.Bogle-SharpJohn H. and Ruth H. Brunson

MemorialGifts

Ease remember the Arkansas Bar Foundation when

you choose [0 make a memorial gift honoring a family

member, a colleague or a friend who was an attorney.

judge or a friend of the profession. Memorial gifts are

recorded in the Foundation's Memorial Book and

provide a lasring tribute. Memorial cards are sent by

the Foundation to [he family advising them of the

contribution. The Arkansas Bar Foundation also

receives gifts honoring individuals for a special event in

their lives and acknowledgments are mailed for

honorariums as weU.

Gifts to [he Foundation are deduccible for federal

income tax purposes and suppo[r the Foundation's

work in making scholarship funds available for law

students, aiding in education of the public about legal

ma(rers, supporting projeccs that assist in improving

and facilitating the administration of justice and

funding other legally relared charirable efforts.

Contributions may be sell[ directly to the Arkansas

Bar Foundation. The staff appreciates having the

name of the family member to whom memoriaJ

acknowledgments should be sent. Please feel free to

call rhe Arkansas Bar Foundation ar (501) 375-4606 or

(800) 609-5668 for further information.

Arkansas Bar Foundation

400 West Markham

little Rock, Arkansas 72201

7

Sustaining FellowsPledge paymems, scholarship contributions

and other gifts are deposited into the TrustFund. While investment income from the TrustFund principle funds the charitable andeducational purposes of the Foundation, aseparate operating accoum pays for the day coday COStS associated with administering theFoundation. In addition co rem from tenams inthe Arkansas Bar Cemer. a primary source ofoperating funds is through SustainingFellowships. Any Fellow of [he Foundationwho comribuces $75 annually may become aSustaining Fellow. We appreciate the support ofour 190 Sustaining Fellows. Names markedwith a « ... represem Fellows who were also

Suscaining Fellows as of April 30, 200 I.

Fellows of theArkansas Bar Foundation

Oucsranding lawyers in the State ofArkansasafC invited ro become Fellows of theFoundation. Upon inviration, a Fellow muSt

contribute or pledge [0 contribute an amountdesignated by the Foundation Board. Thecurrent financial requirement (Q become aFdlow is a pledge of $1,500, which is payableover a three- or five-year period. Upon receiptof rhe pledge and ini[ial payme"" rhe arrorneyis designated a Fellow. Afte< [he pledgedcontribution has been paid in full, the Fellow'spiecure will be displayed in [he Hall of Fdlowsin the Arkansas Law Center. This list representsthe currem 536 Fellows of the Foundation as ofApril 30. 200 I. Those Fellows whose names arehighligh[ed in bold are reeognized as newlydesignated Fdlows for rhe 2000-2001 year.

Julius C. AcchioneRiclwd B. AdkissonCharI" Greg Alagood

· Edwin B. Alderson, Jr.• H. William Allen

R. Ben Allen· Guy Amsler. Jr.

E. M. Ande""nOverton S. AndersonPhilip S. Andenon

• R. Keith ArmanMorris S. ArnoldWH. "Dub" ArnoldJess L Askew. IIIVirginia AtkinsonE. leRoy AutreyLawrenct H. Averill, Jr.Don~d H. BaconCarlton BaileyF""k H. BaileyNancy H. BaileyKenneth B. BairnChari" W. Bak"James P. Baker, Jr.Roy L Bak", Jr.

E.J. BallWilliam K. BallDon K. BarnesIWph e. BarnhanW. Christopher BarrierBenT BanySherey P. &nIeyDavid F. SanonRoIxrt 81nonSamuel R. BaxterR.T Beard, 11IJohn R. BeasleyMike ikd>eJoe D. BellPaul B. Benham, IIIJoe BensonSanford L Besh<2r, Jr.Edgar E. Berhellam N. Bird

Eric W. BishopH. David BlairJames B. Blair

. TIm RoePaul R. Bosson

• Ted Boswell

8

· William H. BowtnEdward BoyceWayne BoyceComer Boren. Jr.Thomas M. B",mh~1Ellen B. B""deyWilliam C. BridgfonhBill W. BristowEdw:ud W Brockman, Jr.Chari" A. BrownGet21d BrownRoben L Brown

· Thomas E. Brown· C. Bramley Buck

e. Douglas Buford, Jr.Tom A. Bufon!

· D~e L Bump'"• Dan M. Bu<g<

!.any W. BurksKevin R. BurnsRiclwd e. Bud", Jr.William Jackson Butt IIJames A. ButtryF. Wilson Bynum, Jr.

• John R. ByrdRichan! J. ByrneRoben D. Cab<

, John e. Calhoun, Jr.Wonh Camp, Jr.

• George E. Campbell· Claude Carpenter, Jr.

Thomas M. CarpenrerPhillip CarrollDaniel R. CanerJean T. Caner

• Paula J. Casey· Roben M. Cearley, Jr.

John S. Ch"l)', Jr.Sandra Wilson CherryLawrence E. Chisenhall, Jr.

, Bill S. ClarkWilliam M. Clark, Jr.W. Dane ClayH. Murray ClaycombHillary Rodham ClimonIWph M. Cloor, Jr.Eldon F. CoffmanCharles T. Coleman

· Robert C. ComptonWalter K. Compton

, Bany E. CoplinBt:nCore

ate CoulterJ. Scon CovingtonKenneth W CowartJam" O. CoxKevin A. Cnss

• Michael H. Cr2wfordJan R. Cromwell

, Jam" D. CypenRoy E. Dan""rJim Darr, Jr.

• John A. Davis, IIISidney P. Davis, Jr.

· RoIxn T. DawsonBany Deacon

, J.e. DeaconGerald L. DelungRebeeea J. DenisonRoben L Depper, Jr.Jay W Dickey, Jr.Edward B. Dillon, Jr.

· WG. Dinning, Jr.· Philip E. Dixon

Roben E. DodsonRoben P. DougherI)'Darrell D. DoverJames F. DowdenTed N. Drake

· Winslow Drummond• Timothy O. Dudley

Phillip J. DuncanJames M. DunnWinford L. DunnJames Trester DykeB. Michael EasleyJohn C. EeholsChari" H. EddyDon A. EilbouG. Thomas EiseleByron M. Eiseman, Jr.

• John D. Eldridge· Don R. £Ilion. Jr.• Gro<g< D. Ellis, Jefftty Ellis• John R. Elrod

WW Elrod, II• William H. Enfield• S[ephen EngsUOffi

Lewis E. Epley, Jr.Roben R. Es."

• Gary L EubanksAudrey R. Evans

· Mike E\'erettLindsey J. "'"deyPhillip B. FarrisJackson Farrow. Jr.

· Oscar ff:ndlerWilliam l...ee FergusJ. Michael FinhughVictor A. Aeming

• John A. Fogleman· Julian B. Fogleman

Dan FordJohn F. Forster, Jr.TImothy Davis FoxCharles Frierson, IIIRoberr F. FussellW Dale GarrenM. Morrell GarhrighlKarherine C. GayMartin G. GiI~rt

• John P. GillMarion S. GillChari" J. Giroir, Jr.W DtntGilChd

· Morron GitelmanRoger A. GlasgowDavid M. GloverCharI" S. GoldbergerCharles W. Goldner, Jr.Ray A. Goodwin

athan G. Gordon• Alben G",V<S, Jr.

Albert Graves. Sr.John R. G",vesKathlyn G",,,es

• Judith H. G",y, J. W Grttn, Jr.• John e. Gregg

Richard E. GriffinRonald L GriggsMarlt W GrohmrerWayne Gruber

• Michad E. H~eMilas H. H~e, IIIJohn T H~ey, Jr.

• O. Wendell H~I, Jr.Don F. HamiltonDonis B. HamiltonHerman L Hamilton, Jr.Frank S. HamlinSruan W. H:rnkinsJohn T. HardinDavid M. HargisJohn N. Harltey

• David K. Harp• Searcy W Harrell, Jr.

Eugene S. HarrisJames E. HarrisRon D. HarrisonS. Reid Harrod, Jr.

• John T. Haskins• Richard Hatfield

William D. HaughtClaude S. Hawkins, Jr.M. S"d, HaysDonald H. H'nryRoben W, H'nryE. H. HerrodSam Hilburn£. Kem HirschRiclurd W, HobbsWilliam H. Hodg<Da';d A. HodgesH'nry HodgesIUnraster Hodges, Jr.Cunis E. Hogu'A1ict L Holcomb

• Cyril Hollingswonh· Don Hollingswonh

Bill R. HollowayM.J~ Holmes

• Jack W, Holr. Jr.· Robert M. Honell· Jcnniffer M. Horan

Manhew HoranRolKn E. HornbergerPhillip D. HoUiDorolhy Y. HowardFJ. How,lI, Jr.D. Michael Huckabay

· Clint HueyDon R. Huffman

· Annabelle Clinton ImberRandall W. IshmaelHermann Ivester

oDonald 1: Jack, Jr.John H. JacksonRandolph C. JacksonSherry JacksonAbron Jennings, Jr.Alston Jennings

• Bradl'}' D. Jesso"John M. Jewell

· W Horace Jewdl• GI,nn W, Jones, Jr.

Louis B. Jones, Jr.M. Samuel Jones, IIIRoben L Jones, Jr.Robert L Jones, IIIW. Wilson JonesJim L Julian

• Eug<n' K'lI'}'• Will~m H. K,nnedy, III· J.L Kidd, Jr.• Judson C. Kidd

John . Killough• )os<ph E. Kill"'trick. Jr.• Warren O. Kimbrough• Mike Kinard

Donald K. KingHarold L KingKnox B. KinneyJohn S. IGnuman

· Peter G. KumpeH. Baker KurrusStanl'}' R. Langl'}'

• Da';d N. las<rSam lasc:r

· John T. La"')'• Ik, AlI,n Laws, Jr.

Leland F. LeathermanCharles R. l.<dberterThomas D. Ldlxttc:rRoben BLdlarMarkham LesterStark LigonGary F Liles

· Ruth LindsgW, Kirby LockhartFloyd J. LoftonJ. Hugh Lookadoo, Jr.

Edwin L Lowther. Jr.Parry W LuekenJames M. LuffmanDiane S. MackeyEdward S. MaddoxPhil MalcomHoward L MartinRichard L MartinWilliam A. MarlinMicluel H. MashburnTerry L MalhcwsCharles D. Manhcws

• Da';d R. Manhcws· Stephen A. Marthews• Ronald A. May• S. Hubert Mayes, Jr.

R;chard L MaysRobin L Mays

· Eugen( J. MazzantiHall McAdanu, III

• Herbert H. McAdams, "• A. D. McAIlislcr, Jr.• Austin McCaskill

James E. McClain, Jr.Hayes C. McClerkinSidn'}' H. McCullumEd W, McCurkl,Bobby McDanielLucind2 McDanielHarry E. McDermon, Jr.Robert McHenryMarcia Mcivor

• James H. McKenzieo James A. McLarty, "I

James Bruce McMarho Phillip H. McMalh

Sidney S. McMathToney D. McMillan

• Jack A. McNull)'D. L McRa,Margaret B. Meads

· Russ MeeksDavid F. Menz

· H. Maurice Mitchell• Michad W, Mitchdl

Roben MoberlyMark A. MollEdward O. Moody

o James M. MoodyCharles Mooney

· D,,,,'}' Moo"" Jr.· Harry Truman Moore

James L Moo"" III· James W Moore

John B. Moo"" Jr.R;chard N. Moo"" Jr.

• Charks A. MolgatlStephen E. Morl'}'

· Kenneth R. Mourton· Rosalind M. Mouser• Wm. Kirl>y Mouser

l.«). MuldrowWalter A. MumyRichard S. MuseRonald G. Naramo",Oily NealE. Sh,ffi,ld ,IsonCharles R. 'estrudDavid NewbernGeorg' H. NiblockRaymond L. NiblockWyck Nisbcr, Jr.R. Gary NunerMike A. O'BrienBobby l.« OdomConrad T. OdomRichard P: Osborne

· Thomas L. OverbeyCharles C. OwenWilliam LOwenMichael O. Parker

9

Nicholas H. PattonWilliam L Panon, Jr.Richard L. P,dEdward M. PenickBill PcnixSamuel A. PerroniDonna C. PettusE. Lamar Penus

orwood PhiUipsJohn M. PickrnGeorg< E. Pike, Jr.John M. PittmanCharles E. PlunkettOddl PollardDavid M. PowellDonald E. Pl<Va1I"William I. Pl't't'o'mDavid H. PryorThomas B. Pryor

· Donald C. Pull,nStevtn W. QuauJebaumJohn W, RainesMichael R. R:Unw:l.ler

· Louis L Ramsay, Jr.• Richard L Ramsay

C.E. Ransick· Brian H. Ratcliff

Gordon S. Rarher, Jr.· J. Thomas Ray· rephen M. Reasoner· David Rees

Richard A. ReidJames R. Rhodes, IIIBen E. Rice

o Elron Ao Ri<v<s, "IRichard W, RoacheltAndree L. RoarJohn B. RobbinsMark RobensSusanne RobertSThomas E. RobertsonH. Clay RobinsonRobert L Robinson, Jr.SJXncer F. RobinsonJudilh Rog,,,

• Charles B. Roscopf• Charles D. Roscopf· Louis Rosen

Jdf M. Roscnu,igRoben D. RossRobert R. Ross8<v<rly A. RowIcrtE1sijane T. RoyKent J. RubensH,rI><n C. RuI" IIIDonald S. RyanJoE. Sand",Danid K. SchicffierEugene L SchiefRerDon M. SchnipperIsaac A. Seon, Jr.Mary Davies ScottFrank B. SewallDennis L ShacklefordJohn M. Shackl,ford, Jr.John K. Shamburger

• James B. harp• Sleph'n M. Sharum• Jo L. Shaver, Jr.

J. Michael ShawKenneth R. SheminWilliam F. ShermanSeou)' hively

• Robe" hullSSt(\,(n T. ShultSHarold H. Simpson, II

· James Marlon Simpson, Jr.Jack Sims

• Ted C. SkokosHoward L SlinkardBcrl A. Smilh

Donald H. SmilhDouglas O. Smilh, Jr.LaUr:l H. SmithRay S. Smilh, Jr.Roben D. Smith, IIIFrank Snellg""" Jr.lnvid SolomonThomas E. Sl"'rksJames V. Spencer, III

• James D. SpronWilton E. SrmiGal, B. SlcwanJean D. Slockburg<rWilliam M. Stocks

· Thomas S. StoneO.H. Sto"')', III

· Thomas S. Sl1tttnUnJoseph A. Srrod,

· John F. Suoud, Jr.Paul Sullins

· William H. Sutton1imothy R. TarvinRex M. T,rryWilliam L Terrylee ThalheimerMarvin D. ThaxtonHoyt ThomasRoben F. ThompsonRay ThorntonDanny ThrailkillThomas P: ThrashJohn R. Tisdal,

· Win A. TraffordRobert D. TrammellN. Walls Trimbl,Edgar J. TylerFred S. UrseryDavid B. Vandergriff

· A. Glenn Vasser· Roben C. Vittitow

Eddie H. Walker. Jr.w,). WalkerJames R. Wallacelarry C. WallaceG. Chris Walrhall

· C. R. Warner, Jr.• John J. Watkins

Fr:lnk L WatsOn, Jr.John Dewey WatsOn

· TImothy F. WatsOn, Sr.James E. WestBud B. WhetStoneFrank B. Whilb<ckFrank L Whilb<ckNorman WdkinsonChris E. WilliamsRichard A. WillianuRoben H. WilliamsW, Jack Willianu, Jr.

· J. Gaston WilliamsonRalph E. Wilson

· Robert M. Wilson, Jr.· William R. Wdson, Jr.

Russell 8. Winburn· Teresa M. Wineland· Carolyn B. Witherspoon• Tom D. Womack• H'nry Woods

Jo< D. WoodwardRichard H. WoottonJacqueline S. Wrighr

· Robert R. Wright, III• Susan W,bbet Wrighl

Terry F Wynn'· W. Kelvin Wyrick

Cary E. Young.. Damon Young

H. David YoungPaul B. YoungRoben E. Young

DonorsThe Arkansas Bar Foundation acknowledges with grateful appreciation the receipt of memorial

gifts. scholarship comribuejons, honorariums and ocher donations (0 the Foundation during the 2000­

200 1 year. This list represents gifts. not including pledge or suS[aining fdlow paymems, received from

July I, 2000 through April 30, 200\. We thank you for your support.

Arkansas Association of Women LawyersW. Christopher BarrierJudge Ellen Bramley

Cathi ComptonJack C. Deacon

Winslow DrummondHden L. Eichenbaum

Oscar FendlerJustice: John A. FoglemanMartin and Betry Gilben

John and Marjem GillJudicl1 Gray

Richard F. HatfieldHyden, Miron & Foster, PLLC

L. R. and Peggy Jalenak

William A. MarcinDoyle and Dana MaytonJudge James M. Moody

Marjorie NiblockDonald L Park«, II, P.A.

Edward and Evelyn PenickHoyte and Ann pyleRebsamen Insurance

Judge John and Marietta Stroud. Jr.judge William R. Wilson, Jf.

Mark WilsonWilson & Associates, PLLC

Judge Henry WoodsPaul and Marcella Young

Special Projects GrantsThe Arkansas Bar Foundation provided special projects grants [otaling approx.imately $41,000 to

programs during the 2000-0 I year. Funding for che following legally rdaced projects represents theFoundation's commitmenr to its educational and charitable mission to improve the administration ofjustice.

NORTH Lrn1.E ROCK MUNICIPAL CoURT, 1ST DMSION

Small Claims Mediation Program

OZARK LEGAL SERVICES

Purchase and distribution of 2001 suppl<rnents to the Povmy lAwPractict Manual [0 pro bono volunteer attorneys

ARKANSAS VOLUNTEER U.WYERS FOR THE ELDERLY

Purchase and distribucion of 200 I supplements to the Povmy lAwPracrict Manual to pro bono volumeer attorneys

ARKANSAS BAR AssOCIATION

Funding for "Scholarly Portrayal of Thomas Jefferson" for Annual Meecing program

DECISION POINT, INC.

Washington Couney Drug Treacmenc Cout[

REsOURCE CoORDINATION AND TRAINING UNIT FOR ARKANSAS LEGAL SERVICES

Arkansas Research Scudy of Legal Services Accessibiliey

10

$ 6,400

$ 3,820

$ 6,500

$ 9,600

$ 5,000

$10,000

AwardsRECOGNIZI GEXCELLE CE

2001 Annual AwardsThese awards are given jointly bythe Arkansas Bar Foundation andArkansas Bar Association andpresemed during the annual barmeeting in Hor Springs. Abov" L to R: judg, W H. "Sonny' Dillahunty, jim L. julinn, Michna

H. CrnwfOrd nnd judg, Andr" L. Ronf

OUTSTA D G LAWYER AWARDJudge W:H. "Sonny" Dillahunty

Given in recognition of excellence in the practice of law andout5canding contributions ro me profession.

OUTSTANDING LAWYER-CITIZE AWARDJim L. Julian

For recognition of outstanding participation in and excellent performance of civic responsibilitiesand for demonstrating high standards of professionaJ competence and conduct.

C. E. RANSICK AWARD OF EXCELLENCEMichael H. Crawford

Given in recognition of extraordinary service to the legal profession.

OUTSTANDING LOCAL BAR ASSOCIATIORecognizing oucscanding activities which enhance the position and standing of the legal profession.

Pulaski County Bar AssociationSebastian County Bar Association

Union County Bar Association

ARKANSAS BAR ASSOCIATION/ARKANSAS BAR FOUNDATIONPRESIDENTS' SPEClALAWARD OF MERIT

Judge Andree L. Roaf

ARKANSAS BAR FOUNDATION WRJTING AWARDS

Legal Writing

Leon Holmes"Pitfalls of the Appellate Practice:

Avoiding the Serbonian Bog"The Arkomas Lawyer

Summer, 2000

General Writing

Elizabeth Andreoli"Consent to Medical Treaunent: The

Right to Have Peace of Mind"The Arkomas Lawyer

Spring, 2000

The comems of this reporr reflect activities of the Arkansas Bar Foundation fromJuly 1,2000 through Apri130, 2001.

II

Board of Directors2000-2001

OFFICERSPresidentVice PresidentSecretary. Treasurer

200120022003

200120022003

200120022003

200120022003

200120022003

Donis B. HamiltonThomas L. OverbeyTeresa M. Wineland

EASTERN BAR DISTRICTDonis B. HamilmllJohn C. GreggLucinda McDaniel

WESTERN BAR DISTRICTDonald C. PullenIke Allen Laws, Jr.David B. Vandergriff

CENTRAL BAR DISTRICTSreven T. ShultsThomas L. OverbeyTim Boc

SOUTHERN BAR DISTRICTWilliam Kirby MouserEd W. McCorkleTeresa M. Wineland

NORTHERN BAR DISTRICTKatherine C. GayMartin G. GilbertTimothy R. Tarvin

ParagouldLirde Rock£1 Dorado

ParagouldBatesvilleJonesboro

Hot SpringsRussellvilleFort Smith

Litde RockLinle RockLitde Rock

Pine BluffArkadelphia£1 Dorado

FayenevilleBentonvilleFayetteville

EX-OFFICIOBradley D. Jesson, Immediate Past President, Arkansas Bar Foundation

Charles B. Roscopf, Chair, Trust ComminceRon D. Harrison, President, Arkansas Bar Association

ARKANSAS BAR FOUNDATION COMMITTEE CHAIRS

TrustCharles B. Roscopf

Special ProjectsJohn F. Stroud, Jr.

AwardsDonis B. Hamilton

Investment

James B. Sharp

BuildingRuss Meeks

Writing AwardsVictor A. Fleming

AudirDavid M. Powell

ABF/ABA Joint Building Task ForceWilliam H. Bowen

ABF/ABAJoint Planning & DesignFrank B. Sewall

FOUNDATION STAFFAnn Dixon Pyle. Execmive Director

Joyce Bobbitt, Administrative Assistant

AStitch in nme:Secured Lending Under RevisedArticle 9

I. OVERVlEW

A. Purpose - Revised Article 9 to theUniform Commercial Code ("RA9") is

intended (a) to expand the types ofcollateral

which may be encumbered pursuant to its

terms, and (b) to simplify and clarify the

rules for creating and perfecting those

security interests, as well as those with

regard to filing, enforcemenr and priorities.

B. Method - It does this nO[ with isolatedamendments, but with a wholesale re­

wriring of Article 9 its definitions section is

15 pages long, it conrains many provisionsformerly found in Article 8, there is an

additional section, and the section

numbering is differenr in many places.

C. Scope - This article deals with the steps

your lender client (Bank) will need to take

CO maintain its secured status as to personal

property collareral after the July I, 2001effective date of RA9, particularly through

the transition period permincd by RA9. It

focuses primarily on (1) continuations of

existing loans; (2) curative requirements for

certain of those loans needing attemion

regardless of concinuationj (3)documentation Issues for new loans

intended to comply with RA9 afrer July I,

2001. including filing requirements andoffices. forms, and collateral; and (4) the

new default and repossession rules.

About the Author

r----=-=-=--, Chris Barrier IS a

graduate of

Hendrix College

and Duke

University School

of Law. He

practices at the

Mitchell Williams

law firm in Litrle Rock where he has

served as chair of the firm's Business

Practice Group.

bVW. Chrislopher Barrier

D. Assumptions - It assumes that the

security for the Bank's existing loans with

which we are dealing has been perfected by

filing, possession or control, and that few, ifany, of its signifkant collateralized loans fall

outside those three perfection methods.Nonetheless, it points out types of collateral

and transactions that previously were

excluded from coverage by the UCC. burare brought within its scope by RA9.E. AgLending Issues - Ir deals specifically

with typical agricultural loans and

requiremems specific to that category of

loans. Arkansas will remain one of the few

states, if nor the only state, which preserves

local county filings for agricultural loans

made under the UCC. Arkansas agricultural

lenders would have been better served had

Arkansas adopted the Model Provisions for

Production Money Priorities proposed by

the drafters of RA9. which are clear and

direct. Perhaps a future General Assembly

will remedy this oversight.

II. CONTINUATIO S.

A. Fact Pattern - Assume a loan closed

December I, 1996 made TO an Arkansas

corporation secured by a chattel mortgage

and financing Statement on restaurant

equipment.Financing statements were filed with the

Circuit Clerk and with the Arkansas

Secretary of State. It is now time to file a

continuation statement.

This transaction remains subject to

existing Article 9 and RA9 as well. Using thenew forms (which should be absolutely

standard in all states adopting RA9), theBank merely needs [Q file a conventional

continu.ation statement with the Arkansas

Secretary of State, but not with the Circuit

Clerk. The same procedure is applicable ifthe borrower is an individual and a resident

of Arkansas. If it is a general partnership

organized in a state with no organizational

document filing requirements, and the chief

executive office is in Arkansas, me procedure

is the same.B. "Birth" State Continuation Filings - If

the borrower is a corporation, LLC, limitedpartnership or other entity whose

organizational docu.ments must be filed, thecontinuation needs to be filed with the

Secretary of State in its state oforganiZl1tion,

even if no original were filed there. If that is

the case, the Bank will continue its lien by

filing a typical UCC-I, including a

collateral description, but one which also

references rhe earlier filing and the pllrpose ofrhe current filing.

If, for example, the borrower is a

Delaware corporation with its chief

executive office in Arkansas County, the

original financing statement filings likely

would have been made with the Arkansas

Secretary of State and also the Arkansas

County Circuit Clerk's UCC records. The

l'el.16 SI. ,1/1'aIl1001 Ue .Irkaml Lawyu 19

continuation sratement (as described above)will be filed neitlur of ,hose offices. bu,instead with the Secretary of State ofDe/awar~.

C. 'When To Act - These transitional steps,in the vast majority of cases, will be taken inresponse to the Bank's tickler systemreminding its employees to prepare and filea continuation seatement for a particularloan, nor as a result of a review of everyexisting Bank loan. And in fact, RA9preserves the effectiveness of existing filingsuntil a continuation is needed, rom if thosefilings would be in the wrong state had theybeen filed .Frer July I. 200 I.

co/lntern! af'er July I. 2001. Filing or non­filing can also trigger the one year rule ifRA9 requires filing for a category ofcollateral, but existing Article 9 did not, theunfiled creditor has a year ro remedy that.B. Deb'or Name Issues - Whether filed as

a continuation seatement or as an initialfiling. the filing needs co comply in allrespects with RA9 for instance, in additionro correct terminology, the borrower's legalname must be seated correctly and spelledcorrectly, not using an assumed name ornickname. This is important because, if a

later computer search does nor pick up theBank's filing, it is as if ir had never beenfiled.

And ,hat depends on the senrch logic usedby that particular office if, for example, theBank's borrower is "Excell Elevators" butthe Bank inadvertently pues in "ExellElevators" in the name box, it couId bepicked up in some states and not in others.So, make sure you have verification of thecorrect name from a public filing, not justlerterhead or phonebook.

If the debror is a mISt with a nllm~, use

Court-Appointed. Regular Court Appearances

Accountant/Economic Analysis

ELECTRICAL ACCIDENTS

11510 Fairview Road, Suite 100Little Rock, AR 72212-2445

Phone: (501) 221-9900Fax: (501) 221-9292

email: schwartz@busvalu.com

• Business Valuations

• Personal Injury Damage Analysis

• Divorce (Property & Child Support Issues)

Richard L. Schwartz

Certified Public AccountantCertified Business AppraiserCertified Fraud Examiner

Paul D. Mixon, PhD., P.E.Engineering Consultant

P.O. Box 3338State University, AR 7467

(870) 972-2088 (870) 972-3948 FAXmixon@nava·o.astate.edu

Electrical Accident Investigation and Analysis,Contact Cases and Electrocutions, Electrical Injuries,Property and Equipment Damage, Electrical Fires,Safety Codes (NEC, ESC, UL), Expert Witnessing forPlaintiff and Defense Related Cases.

III. CURATIVE FILINGS A DDRAFTING.A. Collateral Descriptions - There are,however, instances where the Bank will needto act prior to July I, 2002, even if its loanwere closed and filing made, for example, onApril I. 200 I.

RA9 does nor permit generic, overbroaddescriptions in security agreemems, such as"everything Borrower owns" (unless thathappens to be correct), or "all of Borrower'ssecurities accoums" (even if that is true),even though the financing statemcm can bemore general than the security agreement itevidences.

The security agreement must at least usethe cllugon·ts described in the Code, such as

aCCOUI1(S, equipment, and generalintangibles," and if the existing agreementdoes not conform to those requirements, itmust be corrected or it may becomeineffective.

Perhaps more seriously, if the securityagreement or financing statement does nO[specifically include and describe certaincollateral because it was previously norsubject (Q Article 9 such as commercial bankaccounts, commercial torr claims, certaininsurance proceeds, or license fees thedocuments mllst b~ Ilm~ndrd to includethem within the year, or an interveningcreditor may step in and obtain priority asto those categories of collateral.

In new filings, a list of categories shouldbe followed by "as currently or hereafterdefined." As a practical matter, manylenders use tile same description in thesecurity agreement as in the financingstatement, which is a safer approach, bur,again the issue is whether the collateraldescription srill matches the incended

lO rhe ,Irkmas Law)lr w"w.arkhar.rlm

A great way to find theright klwyer for you!

Log Onto the Internet and go to www.arkbar.com. Then,

you're JUSt a click away from arkansasfindalawyer.com

A direcrory of participating attorneys, fr~ and available online,anytime, COUrtesy of the

Arkansas Bar Association400 W Markham· Little Rock, Arkansas 72201

Phone 501-375-4606 • 1-800-609-5668 • Fax 501-375-4901

that name the way it is S[ated in the

document creating it.

If it is a trust withom a nnm~ (a relative

rarity), use the trustee's nallle in that

capacity.

What about individuals using nicknames,

their middle name and first initial? RA9 is

not crystal clear, but, as a general rule, be as

precise as possible Buddy Wiggins should beWiggins, John Robert.

k a practical maner, the Bank will want

to use the staturory form because filing

officers cannot refuse it and it discourages

errors, but it really does not easily

accommodate DBk or nicknames unless

inserted as an "additional debtor."

The Bank may want to keep a photocopyof an individual borrower's Social Security

card in its file, even if it doesn't fill in the

number on the form. It can do the same

with drivers' licenses, but licenses are clearly

less reliable sometimes nicknames show up

on them.

e. Third Party CoUateral Holders - If the

Bank has perfected by possession through a

third parry bailee and has only notified the

bailee rather than having it ncknow/~dg~ the

Bank's interest (somewhat in the way life

IIlsurance companies acknowledge

assignments), il will nud 10 g~t th~

ackllowkdgmmt within tlu OIU y~ar pmod.Likewise, if a borrower has assigned to the

Bank a significant breach of contract claim

as part of its collateral for a line of credit,

which is made subject to the Code by RA9,

a financing statement needs to be filed in

that one-year period describing the claim

with some specificity.

D. When To File - Filings done before July1, 2001 which complied with RA9

automatically became effective when RA9

did. For example, if the Bank closed a loan

on June 25, 200 I with a borrowet that was

a Delaware corporation with irs chief

executive office in Arkansas, it could have

gone ahead and filed in Delaware instead of

(or in addition to) Arkansas, rather thanw3J(Jng.

This is also relevant with reference to

categories and terminology. Since

"instruments" can be encumbered by a

filing under RA9, including that term in a

pre-7/1/01 filing worked to perfect on

instruments described in the security

agreement on the effective date. Likewise.since the term "accounr" is somewhat

broader under RA9, including it in a pre­

effective date filing when the security

agreement clearly includes within the term

collateral such as license fees (which were a

general intangible until July I) was effective.

Iv. TYPICAL AG WANREQUIREMENTS.

Typical agricultural liens under RA9 do

not require much adjustment in thinking or

procedures, but they do require some.

Under RA9, a security interest in crops

growing on real estate which is perfected by

filing in the same manner as is utilized

currently will take priority over any

conflicting interests of a real estate

encumbrancer.

Production money security interests (as

nored, a term lamentably absent from

Arkansas's version of RA9) and traditional

landlord's liens are now treated like any

other extension of credit filing is "qui"d 10

P'rfil'. RA9 does nOt appear to requite legaldescriptions for any of the crop lien filings,

but they should be used whenever possible,and filings made in every county where the

borrower farms. RA9 deletes old Section 9­

312(2) (including 9 312(2)(f» and does not

really replace it with a specific agricultural

lending provision. It makes sense ro read

RA9's provisions on purchase money

security interests and inventory financing

(new Sections 9-1039(b), 9-322 and 9-324)

as giving a lender who finances the

production of a crop that preferred status if

they follow the same procedures, but RA9could certainly be clearer in that regard and

pre lending lien searches and subordinations

will be more important than ever.

The revised article does clarifY that the

borrower need only be "engaged in farming

operations" with respect to the property

pledged, rather than being an actual"farmer," and thar aquaculture is a sub­

category of agriculture.

v: MISCELLANEOUS ISSUESIQUESTIONS.

k alluded to above, there simply are anumber of provisions in RA9 which, while

generally helpful to lenders, will requireconceptual and procedural re-thinking:

A. Signatures - In what may be the most

dramatic change in Article 9, RA9substitutes "authenticated record" for

"signed writing" for almost all purposes,

allowing acceptance of commitments,

acceptance of extensions, and almost any

other act usually done with a signed writingto be done by fax, email or similar

expression of consent. The new form of

financing statement can 'I be signed.

If the security agreements says the lender

can sign for the borrower, it can. And, if the

security agreement simply calls for filing andperfection, the lender automatically has the

right to cause those things co be done. with

no signatures at all.B. Accou.nts RedefIned - "Accounts"

traditionally has encompassed money duefrom the sale or lease of goods or provision

of services, other rights to payments being

general intangibles.

Under RA9, almost all other "payment

obligations" become accounrs---license fees,

payments for leases of software, insurance

premiums or commiSSions, lantry

winnings, payments due for energy, and

credit card receivables. However, payments

under a loan participation do not, hence. no

filing is required to perfect the participants'

rights.e. Floor Plan Lending - The substance of

I'll ~ ll. ItPl1l ttli Tk ,\rUIIll Li~!rr 11

the provisions with regard to inventory,

especially with regard ro floor-plan lending,are basically unchanged, although RA9 doesmake some helpful clarifications with regardto cash proceeds of sales of inventory.D. After-Acquired Torts - However, an

aner acquired property clause simply cannotapply to commercial torrs since they cannotbe adequately described until mey actuallyarise. (This type of collateral is too rare towarram an extended discussion, but think interms of copyright infringemem.)E. Instruments - Promissory notes (andother instruments, which, definitionally,never includes credit card slips) can beassigned and a security imerest perfected byfiling. However, a creditor perfecting bypossession will prevail over a fLIer, and both

will prevail over a judgment creditOr seekingto levy on the nme. This same three-partpriority system also applies to investmentproperty (substitucing control forpossession), and negOtiable equity securities.However, "supporting obligations" (such as

guaranties) follow the debt obligation, anddo nOt require possession or perfection.F. Control Agreements - The concepr ofcontrol utili7.ed with reference to investment

property, such as brokerage accounts, hasbeen extended for non-consumer loans to

deposit accounts. In particular, the Bank canperfect a security interest in a borrower'sdeposit account at another bank, using acontrol agreement, which should also waivethat bank's right to set-off.

Of course, deposit accounts subject to

one creditor's comrol agreement maycontain cash proceeds relating to collateralof a second creditor. In that instance, thecontrol agreement creditor has priority.Hence, the second creditor may want torequire deposit of proceeds into a specificaccount, as to which the lender has agreed

nor to accept comrol or exercise set-off.One other cautionary nme: deposits of

proceeds into lock-box accounts (as withasset-based line of credit loans) must be

either used to pay down me debt or bereturned to the debtor that's not the way to

perfect on cash.Pledges of lerur ofcr<dir rights must also

be perfected by a control agreement.Physically holding the letter of credit is notenough.

For all types of control agreementperfection, which now includescommodities accoul1ts, you can still have

11 Tke ,lrkllllll,IW!er www.ukhu.u'l

more than one, bur under RA9, they no

longer stand on equal footing, bur ratherfirst in time prevails. Sinc~ it is a pr~unt

~ncumbrana. a contractual ucurity inurNlwill p"vail ov~r lh~ c/ainu of a bankn,ptcytTustu mor~ urrainly than a m~u right to s~t­

offwill.G. HeaJth-Care-Insurance Receivables,UC Rights, ECP - While insurance hasgenetally been excluded from Article 9,"health-care insurance receivables" can nowbe encumbered under RA9. like any otherpaymenc obligation. Likewise. letter ofcredit rights (but, not the right to draw onone) can be encumbered, as can electronicchanel paper (as rare as it may be in theBank's normal operations).H. Bond Issues - Governmental obligationswhich were previously excluded from Article9 are now included in RA9, to the extentnO( covered by a specific statute.I. Free Transferability - Existing Article 9generally renders ineffective prohibitionsagainst pledging accounts as collateral, andRA9 strengthens those prohibitions in theinterest of free transferability.

It also makes it clear that assumingdebtors step completely into the shoes oftheir seller-assignors.J. Name Changes -Ifa borrower changes itsname so as to be misleading (according to

the applicable search logic), collateralacquired four months after the change maybe free of the perfected lien.So, a new UCC-I filing may be required inthe new name.

Ifa Delaware corporacion re-domesticatesto Arkansas, the resulting entity is normallya "new" debtor, bur, if the surviving emity

uses essentially the same name, the one-yearrule can apply. However, the loss of the lienon subsequently acquired collateral may alsooccur.

K. Termination of Financing Statements ­Since there are penalties for failure to

terminate financing statements when theBank has been paid off, obviously it willneed to make sure its tickler system is activeand accurate.

VI. REMEDlF.S/REPOSSESSION.As much of the litigation under old

Article 9 arises in the enforcement of asecurity interest, RA9 was drafted to resolve

pasr disputes. The following revisions, whilenot foolproof, should provide the flexibilityand effectiveness that your Bank needs in

dealing with default.A- Secured Party's Options After Default- Upon default by the debtOr, the securedparty can take possession of or comrol overcollateral, bur cannot breach the peace indoing so. 9-503; Rev.9-609(b); Ark. CodeAnn. 4-9-609(b). A secured party cancollect collateral from account debtors andmose obligared on the instruments ( 9 502;Rev. 9607, Ark. Code Ann. 4-9-607); sellor retain the collateral to satisfy the debts (9-504 and 505; Rev. 9-610 and 620; Ark.Code Ann. 4-9-610 and 620); or judiciallyforeclose on the collateral pursuant to localprocedures (9501(1); Rev. 9-601(f); Ark.Code Ann. 4-9-60 I (f».i. Colkction: A secured party's collectionremedy is expanded and clarified by RA9.Under Rev. 9-607(b) (Ark. Code Ann. 4 9­607(b)), a secured party that is an assigneeof an obligation secured by a real estatemortgage has the right to become themortgagee of record upon the debtor'sdefault in order to foreclose nonjudicially on

the mortgage. A secured parry can alsoreceive and apply against the secured debtfunds in a deposit accoull( over which thesecured party has control. Rev. 9-607(a)(4)and (5); Ark. Code Ann. 4-9 607(a)(4) and(5). Finally, a secured party can also deductits collection expenses for collections madein a commercially reasonable manner. Rev.9-607(d); Ark. Code Ann. 4-9-607(d).ii. Dispositioll: A secured party may sell ordispose of the collareral by a "commerciallyreasonable" public or private sale, applyingme proceeds to satisfy me debt. 9-504; Rev.9-610 and 615; Ark. Code Ann. 4-9-610

and 615. The obligation of commercialreasonableness cannot be waived by thedebtor. 9-501(3)(b); Rev. 9-602(7); Ark.Code Ann. 4-9-602(7).

RA9 furmer defines aspects ofdispositionand provides additional protection for otherinterested parcies. A secured party may

dispose of collateral by license (Rev. 9­610(a); Ark. Code Ann. 4-9-610(a)), maydisclaim or modify disposition warranties(Rev. 9-610(e)), and must providenotification of disposition, if required, to alllienholders of the collateral disclosedthrough a uee search (Rev. 9-611(b), (c),and (e); Ark. Code Ann. 4-9-611(b), (c),and (e». In commercial transactions, ten

(10) days prior notice of disposition isconsidered to be per se reasonable. Rev. 9­612(b); Ark. ode Ann. 49-612(b).

For commercial and consumertransactions, RA9 provides "safe harbor"disposition notification forms. Rev. 9-613and 614; Ark. Code Ann. 4-9 612(b).There is also a tide clearing mechanism thatprovides a transfer of record of titledcollateral to a purchaser at a foreclosure sale.Rev. 9-619; Ark. Code Ann. 4-9-619.iii. Retention of Collaural to SntisfjSecured Debt:

Old Article 9 allows a secured party roretain collateral in satisfaction of a secureddebt, subject to written notice and objectionprocedures. 9-50 I (3)(c); 9-505(2). RA9rerains and modifies this remedy. First, asecured party in a commerciaJ transactionmay retain collateral to satisfy a secured debteven when the secured parry is not inpossession of the collateral. Rev. 9620(a)(3); Ark. Code Ann. 4-9-620(a)(3).The notification by the secured parry ofintent to retain the collateral in satisfactionmay be an "authenticated" notice, ratherthan written, and the debtor may object in20, nor 2 I, days. Rev. 9-620(a) and (c);Ark. Code Ann.-9-620(a) and (c). As withold Article 9, the debtor may waive its rightsto notice or agree to retention. but only afterdefault. Rev. 9-602(10); Ark. Code Ann. 4­9-602(10). The secured party is obligated roinform other secured parries and lienholdersof records of its intention to retain thecollateral. Rev. 9-62 I; Ark. Code Ann. 4-9­621. If the debtor, other secured party, orlienholder makes a written object to

retention. the secured parry does not have rodispose of the collateral, but it cannot retainthe collateral ro satisfy the secured debt. Rev.9-620(a)(4); Ark. Code Ann. 4-9­620(a)(4). Under RA9, the secured partymay now retain the collateral in partialsatisfaction of the secured debt only incommercial (not consumer) transactions.Rev. 9-620; Ark. Code Ann. 4- 9-620.

The process of retaining collateral insatisfaction wilJ not be recognized unless thesecured parry takes the affirmative stepsrequired in Rev. 9-620. Rev. 9-620(b); Ark.Code Ann. 4-9-620(b).

Consistent with old Article 9 is theprohibition on retaining collateral insatisfaction with certain consumer goodswhere a significant pan of the purchase priceof certain consumer goods has already beenpaid. Rev. 9-620(e); Ark. Code Ann. 4-9­620(e).B. Application of noncash proceeds - If a

secured parry receives noncash proceeds(defined at Rev. 9- I02(a)(58» through theprocess of collection or disposition. thesecured parry may value these proceeds andapply them to the debt in a commerciallyreasonable manner. Unless the securedparry's failure to value and apply suchproceeds to the secured debt is commerciallyunreasonable, the secured parry may reduceand collect or dispose of the proceeds, asRA9 collateral. until they have beenconverted to cash for application of thesecured debt. Rev. 9-608(a)(3) and 615(c);Ark. Code Ann. 4-9-608(a)(3) and 6 I5(c).C. Surplus or deficiency - In a securedtransaction that is a sale of accounts, chattelpaper. payment intangibles. or promissorynotes, unless otherwise agreed, the debtor isnot entitled to a surplus nor liable for adeficiency. Rev. 9-608(b) and 615(e); Ark.Code Ann. 4-9-608(b) and 615(e).D. NonpcompUance - RA9 adopts what isknown as the "rebuttable presumption" rulefor commercial transactions where thesecured parry fails to comply with theenforcement provisions of Article 9. In theevent a secured parry forecloses improperly,and then brings an action for a deficiencyagainst the debtor. RA9 presumes that thevaJue of the collateral equals the entiresecured debt unless the secured parry canrebut this presumption. Rev. 9-626(a)(3);Ark. Code Ann. 4-9-626(a) (3).

Revised Article 9 does not specify theprocess to be used in consumer transactions.E. Status of guarantors - RA9 requires thatdisposition notifications be given toguarantors and secondary obligors. Rev. 9­61 I(c)(2); Ark. Code Ann. 4-9-61 1(c)(2).This notification cannot be waived by theguarantor or secondary obligor until afterdefault. Rev. 9-624(a); Ark. Code Ann. 4­9-624(a). If [he guaranror or secondaryobligor is not known to the secured parry,the secured parry is nOt liable for Failure tonotify. Rev. 9 628(a) and (b); Ark. CodeAnn. 9-628(a) and (b).F. Insider dispositions - RA9 protects thedebtor from situations where a securedparry. someone related to a secured parry, ora secondary obligor acquires collateraJ at aforeclosure sale which coUects proceeds thatace significantly lower than me proceedsthat would have been realized throughcomparable sale to an unrelated purchaser.RA9 defines a person rdated to a securedparty at 9- I02(a)(63). See Ark. Code Ann.

4-9 I02(a)(63). Ifsuch a sale takes place, thedeficiency that remains must reAect a creditto the debtor for the higher amount ofproceeds that would have been paid througha sale to the hypothetical unrelatedpurchaser. Rev. 9-615(f); Ark. Code Ann.4 9-615(f).G. Consumer provisions - RA9 containsmany proVIsions with special rulesgovernlllg consumer transactions. Aconsumer transaction is defined as atransaction where an individual i.ncurs anobligation primarily for personal, family. orhousehold purposes. a security interestsecures the obligation. and any of thecollateral is held primarily for personal,family, or household purposes. Rev. 9­102(a)(26); Ark. Code Ann. 4-9­102(a)(26).

Consumers receive various special noticesIII connection with foreclosure. Forexample, the 10 days per se reasonablenotice rule for notice of the secured parry'sdisposition of collateral does nor apply toconsumer collateral. Rev. 9-6 I2(b); Ark.Code Ann. 4-9-612(b). A consumer debtormust be provided with an explanation of thecalculation of any deficiency owed prior tothe secured parry's demand for paymenr ofsuch deficiency. Rev. 9-616; Ark. CodeAnn. 4-9-616. A secured party cannotretain collateral in possession of a consumerdebtor and cannot retain such collateral inpartial satisfaction of a secured debt. Rev. 9­620(a)(3) and (g); Ark. Code Ann. 9­620(a)(3) and (g). A consumer debtor cannever waive his right of redemption, evenfollowing default. Rev. 9-624(c); Ark. CodeAnn. 9-624(c). Finally, the courts are free toadopt any rule (i.e., rebuttable presumption.offset, or absolute bar) when it comes todeficiencies in consumer transactions; the"rebuttable presumption" rule governingdeficiencies in commercial transactions doesnOt apply. Rev. 9-626(a); Ark. Code Ann. 49-626(a).H. Exclusions The enforcementprovisions in Parr 6 of RA9 do not apply totrue co-signors or buyers ofaccounts, chattelpaper, payment intangibles, or promissorynotes, except a buyer's obligation to usecommercial reasonableness in collectingcollateral when the buyer has a right ofchargeback on uncollected collateral or fullor limited credit recourse to the debtor. Rev.9-601(g) and 607(c); Ark. Code Ann. 9­60 I(g) and 607(c).

I'll. 11,1'1. mall 210 I T~! ArkllSll La~w II

III. Ilf III. III III III III III III III III. III III III III III III. III III. III.

CLE CalendarArkansas Bar Association

41ST ANNUAL NATURAL REsoURCES

LAwlNSTITlTTE

February 20-23, 2002Arlington Hotel, Hot Springs

ANNUAL MEETING

June 12-15.2002Arlington Hotel

Hot Springs

51ll DISTRICT TRIAL PRAGncrFebruary 15. 2002

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THE BEST OF CLEJune 24-28. 2002

UALR Bowen School of LawLittle Rock

Seminars scheduled forMarch, April and May appear on the

Arkansas Bar Association web sire,www.arkbar.com

HEALlll LAw SECIlON SEMINAR

VIDEO CoNFERENCE - REGIONAL SITES

February 8TBA

5TH ANNUAL BANKRUPTCY­

DEBTOR/CREDITOR LAw INSTITlTTE

January II. 2002Fayetteville

MID-YEAR MEEnNG

January 24-26, 2002Peabody Hotel

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BRIDGING THE GAPNovember 1-3,2001

UALR Bowen School of LawLinle Rock

FALL LEGAL INSTITlTTE

Ftiday. Oerober 26, 200 ITown Center

Fayeneville, ArkansasUpdate by Professors

Track I - Business lawTrack 2 - Technology

CML LITIGATION SYMPOSIUM

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I. "Co11lnurcinl Reasonnbulli!ss" - Each

aspect of the foreclosure sale must be"commercially reasonable." Rev. 9-610(b);Ark. Code Ann. 9-610(b). A low pricealone does not render a sale not"commercially reasonable," bur such a price

suggests that a court should carefullyscrutinize all pares of the disposition. Rev.

9-610; Ark. Code Ann. 9-610.j. "Good Fai,h" - The definition of "goodfaith" in RA9 is consistenc with the revisions

to other UCC articles, and includes

"honesty in faCt and the observance of

reasonable commercial standards of fair

dealing." Rev. 9-102(a)(43).

SUMMARY:(I) Revised Article 9 broadens irs scope as to

what may be encumbered pursuant to it,

and expands certain existing categories,notably "accounes."

(2) It expands me definition of "proceeds."to cover distributions on stock and licensing

proceeds. with the same result.

(3) It extends me Article 8 concept of"control" ro deposit accounts and letters of

credit.(4) Ir expands the definition of "purchasemoney security interest" and clarifies

priotities among competing PMSI lenders,

although at the cost of less certainty in

traditional crop production lending.

(5) It makes perfection easier by permitting

filing on instruments, by reducing the need

for an inked debtor signature, by

simplifYing where to file. and clarifYing therules on collateral descriptions.

(6) It eliminates local filing except forfixtures, timber and agricultural products,

and standardizes forms and rules for central

filings.(7) It encourages certainty and uniformity

in foreclosure situations.

(8) It makes collateral more easily pledgable.including deposit accounes.

(9) It provides for a manageable transition

period.Once fully implemented. Revised Article

9 will benefit lenders and borrowers alike

(but generally nOt trustees in bankruptcy) .•

For mo~ information, contact Virginia Hardgrave, Arkansas Bar Association, 800-609­5668, 501-375-3957, yh..-dlUave@..-kbar.com OR CHECK OUT THE Cll PAGE at

www.arkbar.com

The Arkansas Bar Association Business Law Section andThe University ofArkansas School of Law present

Fall legal Institute 2001Business Law, Technology and Legislative Update

October 26, 2001Faveneville Town Center • 15 West Mountain,Faveneville, ARIParaJng In dedi below Town Cllnterl

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Inadvenent Disclosure of Privileged or WorkProduct Material

explains that"adequate

instructions. Let's examine the applicablee<hical rules before gerting back ro thislawyer's predicament.

The preamble to the American BarAssocia,tion Model Rules of ProfessionalConduct described the generalresponsibilities lawyers owe fO their clients.The Preamble states that a competent lawyer"provides a c1iem with an informed

undemanding of the cliem's legal rights andobligations and explains their practicalimplications" and "zealously asserts theclient's position under the rules of theadversary system."

The comment to Rule 1.1

includescompetencepreparanon."

Witness preparation is recognized as anindispensable dement of pretrialpreparation. In Hamdi and Ibrahim MangoCo. o. Fir< AJs'n of Philadelphia, 20 ER.D.181, 182 (S.D..Y. 1957), the Courr heldthat "it is usual and legitimate practice for

ethical and diligent counsel to confer withthe witness whom he is about to call prior to

giving his testimony."The duty of zealous representation

therefore obliges the attorney to "maximizethe value of witnesses and their testimony.J. Piorkowski, Proftssional Conduct in thePreparation of Witness" for Triac Definingthe Acceptable Limits of "Coaching," I.GEORGETOWN J. LEGAL ETHICS389, 389 (1987).

The key erhical obligation that limitswitness preparation is very simple: thelawyers should not create or encourage false

testimony. This ethical obligation isreglected in Model Rule 3.3 Ca lawyer shallnot knowingly offer evidence that the lawyerknows ro be false"). Model Rule 3.4 ("alawyer shall nor falsify evidence, counselorassist a witness to testify falsdy").

The U.S. Supreme Courr has observedthat an attorney "must respeer the

important ethical distinction between

discussing testimony and seeking

contained advice on how the client couldand should answer certain questionsregarding the client's injuries. The advicewas very explicit. For instance. the c1jentwas advised that if asked a certain question,the dient should respond that she didindeed have a fear of developing certaincomplications later in life that could provefatal. The advice contained suggestions onhow to respond to questions withinstructions that me client should "be sure"to state such and such if asked a certain

question.Well, the day came for the client's

deposition and an associate in the firm

defended the deposition since lead counselwas otherwise obliged. Defendant's counselasked the client for her tax returns and as sheshoved them across the table, somewherenear the bottom of the pile went her

testimony memorandum. You can imaginewhat happened. To make a long srory shorr,defense counsel kept the testimonymemorandum, mailed and published it overthe internet to other defense counsel across

the counrry, and filed a motion to sanctionplaintiff's counsel for an ethics viola lion andto disqualify him from representing anyfiHmer clients againsr me defendant. Theplaintiff's attorney. being quite caught bysurprise, had to appear at a hearing within amaner of days before an obviouslyconcerned judge. He requested time to

research the issue as he had JUSt found outwhar had happened and had no law on thetop of his head that he could immediarelyrecite. The judge granted his requesr andthis lawyer began a fervent search for somelaw.

As It rums out, the law regardinginadvertent disclosure of privileged or

confidemial material that one's adversarydid not intend for one to have states mat merecipient (1) must not look at it, (2) must

notify the lawyer from whom you obtainedthe privileged or confidential document,

and (3) must thereafter follow thar lawyer's

David Williams hasa law practice inLirde Rock. Hereceived his law

degree from theLeAar Law Center,

University ofArkansas at

Fayetteville. He is a member of theArkansas Bar Association EditorialAdvisory Board.

I was attending a seminar last Spring,sitting in on the first segment of theafternoon. which was on wi messpreparation, when the speaker began to

describe his law firm's personal experiencewith inadverrent disclosure. As best I canremember it went like this:

A client was being prepared fordeposition. The client suffered from aparticular disease or condition that is knownro be caused by prolonged exposure to aparticular produce. This client was one ofmany clients that this law firm wasrepresenting in regard to this particularproduct. Because of the number of clients

and the number of depositions, paralegalswere being utilized extensively in witnesspreparation.

As we know, there are many ways in

which witnesses can be prepared fordeposition or trial.

There are companies which producevideo tapes on deposition preparation.Many law firms use testimonymemorandums. "Wood shedding" can also

include mock examination sessions utilizingtwO lawyers to play the appropriate role ofopposing counsel.

In this particular case. the law firm hadhired a bright new paralegal who had takenit upon herself to create a testimonymemorandum for all of the firm's clients.

This particular testimony memorandum

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production.

In a May 1995 OptnlOn, the D.C.Committee on Legal Ethics stared that it ispermissible for a receiving lawyer to review.retain and use inadvertently produceddocuments if he receives them in good faithwithout knowledge of the inadvertence. Onthe other hand, when the receiving lawyerlearns of the inadvertent production bifor~

he examines the materials. D.C. requires thelawyer to notify opposing counsel and, ifrequested, return the material unread.Failure to do so would be a dishonest act inviolation of Rule 8.4(c).

These decisions reflect competing viewsof a lawyer's erhical dury. Ir has beensuggested that not all duties are defined by a

narrow legalistic reading of the black lenerof rhe model rules. The besr advice is simplyto follow rhe old Lou Hohz "do right' ruleand treat other lawyers, and theirconfidentiaJ and privileged materials thesame way that you would want to be treated.To be safe, and hopefully nor have co worryabout having the same thing turned around

against you, when you receive inadvenenrdisclosures. do what good lawyers do: put itin an envelope immediately without readingit, and send it back; and call your opposingcounsel and let him know. He'll appreciateir. I know I did! •

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her deposition. And, that the disclosure wasinadvertem; that defense counsel should

have immediately returned the documem;that by publishing it over the internet and to

orher defense counsel he had breached rheapplicable erhical rules, and rhar he and hislaw firm should be disqualified fromrepreseming the defendant in futurelitigation, not the other way around.

The judge agreed and granted rhecounter motion of the plaincifT seeking justrhar relief. So, rhings ended happily everafter for this lawyer and his inadvertentdisclosure problem.

There are some wrinkles regarding thisissue, however. Some states have been slowto embrace the conclusions reAected in the

ABA opinion. For example, in a 1993opinion, the California Court of Appealsreversed a trial court decision imposingmonetary sanctions on the law firm of a

lawyer who had innocently received - andthen reviewed and used - documents that hisopponent did not intend to disclose co him.The Court found that at least on the factS

before ir, the lawyer did nothing improperin reviewing the documem he received.

Ethics committees in Ohio and Mainehave reached similar results, a1rhough borhexplicitly impose a duty on the lawyer CO

inform opposing counsel of the inadvertent

improperly to inAuence It." Ceders v.

Un;ud SlaW, 425 U.S. 80, 90 n.3 (1976).Section 176 of the most ream draft of

the Restatemem of the Law GoverningLawyers reaffirms thar a lawyer "mayimerview a witness for the purpose ofpreparing rhe witness ro tcuify." ThecommentS to section 176 explain thar alawyer preparing a witness may "invite the

witness to provide truthful restimonyfavorable to the lawyer's diem" and listseveral ways thac a lawyer may prepare a

witness to testify truthfully and effectively.These methods include:1. Discussing the witnesses recollection andprobably restimony.2. Revealing ro the witness other evidencethat will be presented and asking the witnessto reconsider the witnesses testimony in matlighr.3. Discussing the applicability of law to rheevems and issue.4. Reviewing the faCtual context imo whichthe witness's observations or opinions willfir.5. Reviewing documents or other physicalevidence that may be introduced.6. Discussing probable lines of hostile cross­examination.7. Rehearsal of restimony.8. Suggesting the choice of words to makethe witness's meaning dear.

Some of these methods raise particularethical quesrions that deserve more detaileddiscussion, but which space constraints limit

here. Needless to say there is a big differencebetween refreshing a witness's recollection

and putting words in his mouth or ideas inhis mind, when not supported by theevidence. As che District of Columbia Barsummed up "what does matter is thatwhatever the mode of witness preparationchosen, the lawyer does not engage insuppressing, distorting. or falsifying thetestimony that the witness will give." (LegalEthics Committee Opinion No. 79,December 18, 1979).

Back to rhe story. Ar rhe hearing ondefense counsel's morion for sanctions and

to disqualify, plaimiff's counsel presentedthe legal argumentS ser out above. He

argued that not only was there nothingimproper in what his para.legal had done viathe preparation of the testimonymemorandum and the rehearsal with theclient, but that the law firm had an ethical

obligation to the client to so prepare her for

I'll.l6 11'8. ,IfFill tOOl T~e IrkulIJ 1,IW!er l7

In re: TECHNOLOGYDigital Discovery Grab Bag

bY late MarQuess

W"db exPanding federal mles,

lawvers have to get ahandle on e-nlesReprinted by permission of the ABAJournAl

Call it the smoking gun e-mail: a sput-of­the~moment scrap of communication sentthrough cyberspace with little thought ofthe consequences. Until, that is, it ends upin opposing counsel's discovery satchel.

"There are times when we turn ro eachothet and say, "Oh, my God, I can"t believeI JUSt wrote that," " says Virginia Llewellyn,counsel at Bellevue, Wash.-based AppliedDiscovery, a company that helps lawyersgather electronic discovery materials. "It'ssuch an instam form of communication thatyou don't think about it,"

Monica Lewinsky probably gave linlethought ro the e-mail she scm ro LindaTtipp:" ice that the Big Cteep didn't eventry ro call me on V-day." It wound up inKenneth Starr's Independent CounselRepon in 1998.

And there was the infamous e-mail BillGates sent to Microsoft executives in 1997:"Do we have a dear plan on what we wantApple to do to undermine Sun?" That onewas admitted as evidence In thegovernment's antitrust SUI[ againstMicrosoft.

What may be surprising, however, is thateven the most egregiow episodes don't seemro be setting an example for e~mai1ers. Thatcan be a nightmare for litigators.

II III? II.........Lawyers are facing an expansion of

fedetal discovety rules. As of Dec. I, allfederal district courts mwt comply with the1993 amendment to Federal Rule of CivilProcedute 26(a)( I), requiring litigants torurn over all materials relevam to a disputeincluding e-mail and ocher elecuonicdocuments regardless of whether the otherside has made a discovery request.

Although the new rules mandate

discovery, they nevertheless narrow thebreadth of what needs to be ptoduced toclaims and defenses, says Portland, Ore.,litigaror Dennis Rawlinson.

"Production of electronic documentationscares us becawe of the large number ofdocuments," says Rawlinson, co-chair of theCommercial and Business LitigationCommittee of the ABA Section of.Litigation. "If anything, ie's good news thatat least the breadth of discovery has beennarrowed with the new rules." Still, he adds,there likely will be battles between opposingcounsel over which electronic documemsare covered.

For litigators, that means instructingclients not only about e-mails but allelectronically stored data that could end upin discovery, such as case management files,billing records and calendars.

Electronic discovery poses anorherproblem, especially in cases involvingtechnology businesses. Trade secrets andother privileged dara often reside on thesame hard drives and computer disks as acompany's discoverable information.

"Thar's a real problem, especially whenyou're dealing with cases rhat involvecompetitors suing [each other]," says U.S.District Judge Barbara Rothstein, who sitsin the Western District of Washington.

"The last thing you want is yourcompetitors getting into that. "Discovery isthe most painful patr" of a high-rech case,says Rothstein. "I often heat that the goal ofa suit was to get at the other side's tradesecrets. "

Jon Sobel, associate general counsel arYahoo, recommends asking for protectiveorders early and taking a proactive role inmanaging discovery. "Don't let discovery byche other parry get our of control," he says.Ask the judge for case management orders,Sobel says, to limit the scope.

Rothstein recommends having a neutralthird parry analyze electronic files involvedin a case. "How you set up protective ordersis very important, determining who looks atwhat. It can become very hairy."

Til 2' ... I TrIIPossibly of greatest concern among

discoverable e1ecuonic documents are e­mail messages, which are also the mostworrisome and often the mostincriminating.

Applied Discovery's Llewellyn says sheoften finds cases where e~mails were che"gotcha." In such cases, e-mail senders maybe trying to cover their tracks with a casual,rransiem message, when in fact they'recreating an electronic paper trail."We find lots of [e-mails]saying...Oh.bythe way, there's litigation on [the e-mailsubject], so be sure to destroy that memo."

Overwhelmed by torrents of electronicdata, some lawyers agree with theiropponents not to ask for each other's e-mailarchives during discovery, Llewellyn says.

"Attorneys have acruaUy been negotiatinge-mail off the table," she says. Looking theother way is easier than poring throughwhat may amount to millions ofdocuments. "l've had people say, "We havenot found a way to deal with this. It wouldtake years and hundteds of thousands ofdolJatS."

In many jurisdictions where themandatory disclosure rule has not been ineffecc, some lawyers may enter intostipulations, says Rawlinson. He speculatedthat his own state of Oregon, which did notcomply with the rule prior to Dec. I, wouldallow opposing attorneys to stipulate whatwould be produced.

TlCI lillYContinued on page 39

Free report shows how to get clientsdrowning in debt to earningSJOO,OOO a year, praclicallyovernight," he says.

Most lawyers depend onreferrals, he nOles, but nOI one in100 uses a referral syslem."Wilhout a system, referrals areunpredictable, and so is yourincome,"1le says.

Ward has taughl his referralsyslem to more than 2,500lawyers worldwide, and haswrinen a new report, "lIow 10

Llewellyn doesn't recommend mat tactic.

"The realiry ... is mat they're JUSt not

IOlerating "hide the ball." It's really a wisetmove to educate clients upfront, make them

smarter about how they do business right

now."

Mandatory disclosure rules allow for

"brutal" discovery sanctions, Llewellyn

warns. And courts don't need bad faith to

issue them. For example, in Procter &Gamble Co. v. Haugen, 179 ER.D. 622 (D.Utah 1998), Procter & Gamble admitted 10

discarding e-mail messages of employees

identified during discovery who possessed

knowledge relevant to me litigation. The

court did nOt issue a bad-faith instruction

but did issue discovery sanctions of $1 0,000against the company.

The court dealt a more crushing blow in

In re Prudential Insutance Co. SalesPractices Litigation, 169 ER.D. 598 (D.N.).1997). In that case, the judge issued a $1million sanction against Prudential for

improperly destroying electronic dara that

harmed a plaintiff's ability to establish

claims.

Llewellyn offers other tips for lawyerstrying to get their arms around all me bits

and bytes.Know what your client has so you can go

and get all of it. Most companies use a

variery of software programs for

communications. Look for programs that

handle word processing, e-mail and

calendaring, spreadsheets and databases.

Ask about the c1iem's record retemion

policy. Companies may begin regularlydiscarding old back- up tapes to circumvent

discovery requests, but Llewellyn doesn'trecommend it. "Once you're pur on notice)

it's not going to be good enough to say, ""We

erase backup rapes every 48 hours.»Pay attention [0 how the courts in your

jurisdiction are handling electronic

discovery.

Deal with litigation immediately.

Preventive mainrenance is important in

dealing with clients, so talk to them before

ie's tOO late.

.....1IIlJGathering the dectronic information is

the first step. Many firms, faced with a pile

of CDs, computer disks and hard drives,

instruct [heir paralegals (Q spend the months

it takes printing out documents, rescanning

them, coding them into a darnbase and thensearching them for [he relevant informacion.

Several companies offer electronic

discovery services that manage such

informarion. Llewellyn's Applied Discoverycompiles electronic discovery documents in

a searchable database so litigators don't have

to prim our files and read each one

individually. E-mails remain linked to

acrachmenrs, and [hey also maintain their

meta-data, information such as the date a

Calif.-Why do some la\lo'Yer5get rich while olhers struggle topay Iheir bills1

"'That's simple," saysCalifornia anomer David M.Ward. "Successful lawyers knowhow 10 market Iheir services."

Once a struggling solepractitioner, Ward credits hilurnaround to a referral marketingsystem he developed six yearsago.

"I wenl from dead broke and

document was created, who created it and

who received it.

Ontrack Data International, an Eden

Prairie, Minn.-based company, provides a

simiJar service and also handles "computer

forensiC5" in cases where information has

been deleted and an expen is needed to get

it back. Seanle-based Electronic Evidence

Discovery Inc. recendy launched

DiscoveryPartnerOnline.com, a Web site

that offers the same kind of services.

""If I was litigating a case, I guarantee yOll

my first [requestl would be: List every e­

mail account you've had in the last five

years," Llewellyn says. ""You'd be in serious

trouble if you didn't turn that over." _

Kate Marquess is II tecbnology writer andlntertlet editor for tbe ABA jou"",L

Ctl Mort ClitnU In A MontbTbln You Now Ctl All Yur!"The report shows how any lawyercan use this marketing syslem 10

get more clients, increase Iheirincome, and build a successfullaw praclicc.

Arkansas lawyers can gel aFRE [ copy of the report bycalling 1..s00-5'2-4627 (a 24­hour free recorded message), orby visiling Ward's web silt alwww.dnidward.com

ACCORD DISPUTE RESOLUTION

Resolving disputes having technical issues - Environmental, intellectualproperty, construction, contract and personal injury matters.

ALBERT J. THOMAS IIIATTORNEY· MEDIATOR· ARBITRATOR

I 160 I Pleasant Hidge Hoad, Suite 204Litlle Hock, AH 72212-2200

501.975.0010 Telephone501.975.0018 Facsimile

fillS XI. ·I/FIII tUG I Tit \rtlllll LiMW II

JUDGE JOHN McCLURE, L"'lo Rock

SIGNIFICANT DECISIONS

OF THE SUPREME

COURT OF ARKANSASSpollSored by

The Arkansas Supreme CourtHistorical Society, illc.

Brook, v. Page (May 7,1874)

By L. SCOTI STAFFORD

During its 160-year hiscory me SupremeCourt of Arkansas has issued a number ofcontroversial decisions. One such decision­-Brooks v. Page--proved so unpopular that itled within weeks co the removal from thebench of every justice who had joined in the0pullon.

The decision grew out of thegubernacorial election of 1872. TheRepublican Parry had gained control ofArkansas state government in 1868 in mewake of the congressional ReconstructionActs, but after four years in power theRepublicans had split into (\vo factions.The regular wing of me parry nominatedCircuit Judge Elisha Baxter for governor. Agroup of Reform Republicans named aticket headed by Joseph Brooks. Ratherthan nominate a candidare, the Democraticstate committee endorsed Brooks, and mostDemocrats who were eligible to voteprobably supported Brooks. Baxter wasdeclared the winner and sworn into office inJanuary of 1873, but Brooks contested theelection in several forums including mefederal courtS, the General Assembly, andthe state couns. The matter seemed settled

40 Tir, ,Irkmas La~Ter www.ukbar.CII

in June of 1873 when the Arkansas SupremeCourt refused to issue a writ of quowarranto that would have forced Baxter toprove his right to the governor's office.

By rhe spring of 1874, however, manyregular Republicans had becomedisenchanred with Baxter after the governorappointed a number of Democrats to publicoffice and refused to back legislation for therelief of me railroads. Following his defeatin the quo warranto action, Brooks had filedan election contest in PuJaski Circuit Court,but no action had been taken in the caseafter Baxter had filed a demurrer. On April14, 1874, Circuit Judge John Whytock, aregular Republican, set a hearing on Baxter'sdemurrer without advising Baxter'sanorneys. The following day Whytockoverruled the demurrer and issued ajudgment declaring that Brooks was thegovernor of Arkansas. Brooks, accompaniedby armed men, proceeded to the statecapitol and ejected Baxter from thegovernor's office. Over the next few weeksarmed supporters of both candidates pouredinro Little Rock.

Both sides appealed to Presidem UlyssesS. Grant for support, but the presidentannounced that the matter should be setrledby either the Arkansas legislature or theArkansas couns. The General Assembly wasknown to favor Baxter, but four of the fivemembers of the supreme court were fromthe regular Republican wing that nowsupported Brooks. Baxter issued a caU for aspeciaJ session of the legislature, whileBrooks searched for a way to secure asupreme court's ruling that he was the legalgovernor. Affirming Whytock's judgmentwould have taken roo long, so Brookscreated a case or controversy for directsubmission to the high court. Both the stateauditor, Stephen Wheeler, and the statetreasurer, Henry Page, were in Brooks' campand willing to cooperate in creating acontroversy. Brooks requisitioned $1,000 topay the COSt of his milida. Wheeler issued a .state warrant for that amount, which Pageobligingly refused to pay, citing uncenainryas to who was governor. Brooks then filedan originaJ action in the supreme counasking the court for a writ of mandamusordering Page to pay the warrant.

Since the Court had recessed in Februaryand was not scheduled to begin its next termuntil June, all members except Chief JusticeJohn McClure, a longtime nemesis ofBaxter, were out of the city. McCluresummoned the other justices to convene on

May 4, 1874. Justices John Bennett,Elhanan Searle, and Marshall Stephensonimmediately set out for [he capital, butwhen their train arrived at Argenta Stationon me north side of the Arkansas River, anarmed detachment of Baxter mi.litiakidnapped Bennett and Searle. The Baxterforces did not recognize Stephenson whoescaped to Little Rock, bringing news of theabduction of Bennett and Searle. The twO

kidnapped justices were taken to Bentonand held prisoner until May 5, 1874, whenthey managed to escape. On May 7, 1874,four of the five members of the court issuedan opinion holding that Whyrock's decisionmade Brooks the governor. The opinionwas immediately forwarded to Washington,but in the meantime Baxter had managed toassemble a quorum of the GeneralAssembly, which endotsed him as governor.

On May IS, 1874, President Gramsettled the contest in Baxter's favor after theUnited States Attorney General issued anopinion concluding that the Arkansasconstitution vested the legislature with theexclusive power to determine an electioncontest for governor. The attorney general'sopinion curtly dismissed the ArkansasSupreme Court's "made up" decision inBrooks v. Page, which, according to theatrorney general, "was submitted to judgesvirtually pledged to give the decisionwanted...."

On the same day that news of thepresident's decision reached Little Rock,three of the supreme court justices-­McClure, Bennett, and Searle--Ieft town.Four days later Stephenson resigned and alsoleft town. After declaring Baxter thegovernor, the General Assembly remained insession long enough to impeach McClure,Bennett, and Searle, and enact legislationsuspending all three from office. Theadoption of a new constitution in Octoberof 1874 ended the terms of the threeimpeached justices before they could bebrought ro trial in the senate. In November1874, a new supreme court formed underthe Constitution of 1874 unanimouslyrepudiated Brooks v. Page, and the opinionwas omitted from the official ArkansasReports.

For a more detailed description of therole of the Arkansas Supreme Court in theBrooks-Baxter War, see Scot( Srafford,Judicial COllp D'Etat: Mandamus, Quo

11..... IIIcIIIl ••Continued on page 53

·llIdil'iill \lh isol'~ OpiniollsThe Judicial Advisory Opinions are wrillell and provided by the Judicial Discipline and Disability Commission.

THE ARKANSAS BAR AsSOCIATION

A TRADITION OF PROFESSIONALISM AND PUBLIC SERVlCE

(501) 375-4606 • (800) 609-5668

Legal Info Links • Arkansas Veterans Handbook • Disaster Legal

Assistance • High School Mock Trial Program • Senior Citizens

Handbook/CareGivers Guide

www.arkbar.com

The Arkansas Bar Association wants you toknow we're just a click away.

Dear Judge DeSlefano:

In your request for an opinion dated July

30. 2001 you asked: "After a judge has

conducted a trial and convicted a Defendant

of cerrain charges, can the Judge then testify

against the same Defendalll in a subsequent

perjury trial concerning the Defendalll'stestimony in the first trial?"

In responding we have made the obvious

assumption that the perjury trial is nOt in your

court.

The only provision in the Arkansas Code of

Judicial ConduCl thal deals directly with a

judge lestifying in coun is Canon 2 B which

states in parr that "A judge shall nor testify

voluntarily as a character wimess." Canon 2A provides that "A judge shall respect and

comply with the law and shall act at all times

in a manner that promotes public confidence

in the integrity and impartiality of the

judiciary."

If subpoenaed to testify before another

coun you should simply abide by the law and

by the Arkansas ode ofJudicial Conduct.

The Honorable Peter DeStefano

Municipal Judge

Re: Advisory Opinion # 2001-04

• • •

(Psst...)

candidate prior to 180 days before a primaryelection. With the new amendment and

implementing statutes, the general elections

for judges have been moved from November

ro May. However, the Arkansas Supreme

Court has not changed the language of the

Code of judicial Conduct.

The opinion further stated that the inrenr

of the Code provision was to place limirs on

the length of judicial campaigns, and that

intent applies also to non-partisan elections.The Committee stated that they have no

authority to rewrite the Code or to

temporarily suspend its-operation, however,

they nored thar rhe Coun has in the past

made quick changes in the Code, and can

certainly do so in this instance if it wishes.

Examples given were the Per Curiam of

November 19. 1990, 303 Ark. 755

(nepotism), and the Pet Curiam of May 30.

1995.320 Ark. 715 (judicial starionery).

It was the opinion of the Committee that

Canon 5C(2) is applicable and. therefore.

fund raising may nor begin uncil 180 days

prior ro the May 2002 election.

Dear Anomey Bagby:

You have indicated to this com mince that

you intend to run for Circuit Judge in the

general election of May 2002. You ask

about the applicability of Canon 5C(2) of

the Arkansas Code of judicial Conduct in

lighr of the adoption of Amendment 80 to

the Arkansas Consricution.

Canon 5C(2) prohibits fundraising by

the commictce of a candidate prior to 180

days before a primary election. With rhe

new amendmem and implementing

sracures, me general elections for judges have

been moved from ovember [0 May.

However. the Arkansas Supreme Court has

not changed the language of the Code.

The intent of the Code provision was [0

place limits on the length of judicial

campaigns. That intent applies also to non­

partisan elections.

We have no authority ro rewrite the Code

or ro temporarily suspend irs operation. We

note that the Courr has in the past made

quick changes in the Code, see for example,

the Per Curiam of ovember 19. 1990.303

Ark. 755 (neporism), and the Per Curiam of

May 30. 1995. 320 Ark. 715 (judicial

stationery) and can certainly do so in thisinstance if it wishes.

It is our opinion that Canon 5C(2) is

applicable and, therefore, fund raising maynO[ begin unril 180 days prior to the May

2002 election. The Arkansas judicial

Ethics Advisory Commiuee issued an

advisory opinion ro Anomey Philip A.Bagby of Van Buren, Arkansas. He

requested an opinion as ro whether, in light

of the constitutional changes to Arkansas

judicial elections, there should be a

temporary suspension of the enforcemenr of

the lBO-day fundraising limit in Canon

5C(2) of the Code ofjudicial Conduct until

the Supreme Court has the opportunity to

consider appropriate revisions ro that

Canon.

The opinion srares thar Canon 5C(2)

prohibits fundraising by the commirree of a

Philip A. Bagby, Attorney at Law

Bagby Law Firm

RE: Advisory Opinion # 2001-05

Lawyer Disciplinal'y ActionsThe Lawyer Disciplinary ACliolls are ",rillen mid provided by 'he Supreme COlin ofArkansas' Commillee Oft Professional emldllel.

ORDER OF DISBARMENT

GEORGE R. WADLEYJonesboroMay 29.2001

Now on this 29th day of May, 2001, the datescheduled for the sanctions hearing, the plaintiff,Stark Ligon, in his capacity as the Director of theSupreme Coun Commincc: on ProfessionalConduce appears through his scaff counst:1, LynnWilliams. The defendant. Grorge R. Wadley. doesnot appear. After consideration of the pleadings, meevidence: offered, statements of counsd and ornermanc:rs before: the Coun, the: Coun doth find that:

I. By order of this Coun filed on May 2. 200 1.this Coun found me: defc:ndam in defauh for failingto respond to the Executive: Director's Complaint.The dury of this Coun is to decide: the: appropriatesanction for the violations SCI out in the ExecutiveDirect,or's Complaint by using the guidelines as setout by the decisions of the Arkansas SupremeCourt, particularly, Neal v. Hollingsworth, 338 Ark.251.992 S.W. 2d 771.

A. Mr. Wadley has had four previous publicsanctions by the Supreme Court Committee onProfessional Conducl. In order of the filing datewith the Arkansas Supreme Court Clerk, they are:

a.) July 15, 1997. a ~primand for biling toserve opposing parry with a petition and notice andthen ming a verified petition with the Courtthat he had served the opposing parry with thepetition and notice.

b.) February 22. 200 I, a one year suspension forfailing to perform any work in ~half of hjs client.Donald Bar~r after being retained for $1.500.00.Mr. Wadley also refused to refund any of theunearned retainer to Mr. Barber.

c.) February 22. 200 I. a one year suspension forhis failure ro respond t'O a contempt citation filedagainst his client Donnie Ault after being ~tained

by Mr. Ault to ~present him in a child visitationmaner.

Additionally, Mr. Wadley falsdy stated to hisclient that he had scheduled hearings in the ClSI=

when it actuality he had nO[ Clusing unnecessarydelay in Mr. Auh's case;

d). February 22, 200 1. a one year suspension forF.dsely ~presenting to a parole hearing judge that hislaw license was in good standing. when in fact. hislicense was suspended due to Mr. Wadley's fajlu~ to

complete his CLE requirements.B. The defendant's misconduct resulted in a loss

and damage to his client. Ms. Coleman. Themisconduct involved his failure to represent hisclient, Ms. Coleman. The misconduct is a pan of apattern of similar misconduct. The lawyer's priorrecord of public sanctions demonstrates asubstanrial disregard of the lawyer's professionalduties and responsibilities. The misconduct wasserious and has damaged the legal profession.

4. The appropriate sanction for the misconductshould be the disbarment George R.

l2 The Arkansas I,awler www.arkhar.rom

Wadley with his mtme ~ing removed from theregistry of licensed anornc:ys mainrained by theClerk of thc Arkansas Supreme Coun Clerk.

5. The authority to grant and revoke thepnvilege to pr.tctice law lies exclusivdy within thejurisdiction and authority of the Arkansas SupremeCoun. This Coun finds that it cannot revoke thelaw license of George R. Wadley, but the Courtaffirmatively finds that disbarment is theappropriatt: sanction.

7. George R. Wadley. should ~ and he~by is,prohibited and barred from engaging in me pr.tcticc:of law within the jurisdiction of the State ofArbnsas pending an appropriate petition to theSupreme Court for the disbarment of the defendantby the Supreme Coun.

IT IS THEREFORE CO SIDERED.ORDERED. ADJUDGED AND DECREED ,halthe defendant's misconduct alleged in the

Complaint is found to Ix in violation of Rules 1.1.1.3. 1.4(a). I. I6(d). 8.4(c) and 8.4(d) of ,heArkansas Model Rules of Professional Conduct; thatthe appropriate sanction for such violation is thedisbarment of George R. Wadley; and that, pending

:1 petition to the Arkansas Supreme Coun seekingsuch disbarment. George R. Wadley should be, andhereby is, prohibited and barred from engaging inthe practice of law within the jurisdiction of theStale of Arkansas.

(Petition to disbar grantcd on June 21, 2001.)

NOTICE OF SURRENDER OF AlTORNEY'SPRIVILEGE TO PRACnCE LAW

JAMES ODELl CLAWSON. JR .uule Rock. ARJune 7. 2001

James Odell Clawson, Jr., an attorney formerlyresiding in Little Rock, and formerly pr.teticing lawin Linle Rock. Pulaski County. Arkansas. wimArkansas Bar 10 #90219 has been barred fromengaging in the pr.tctice of law in this State forviol:uion of the Arkansas Mood Rules ofPtofessional Conduct. On the recommendation of

the Arkansas Supreme Coun Committee onProfessional Conduct, the Arkansas Supreme Courtaccepted the surrender of me law license of JamaOddl Clawson, Jr. on June 7. 2001.

Anomey Clawson's Petition to Surrender wasbased upon violation of Model Rult: 8A(b)of theArkansas Model Rules of Professional Conduct. ThePetition and anached exhibits on file withthe Clerk of the Arkansas Supreme Coundemonstrate thaI Mr. Clawson was convicted in the

State of Oklahoma of twO (2) felony counts ofUttering a Forged Insrrument, in violation of 21

0.5. 1592 and that, on April 9. 200 I, a juryconvicted Mr. Clawson of six (6) COUntS ofbankruptcy fraud in violation of 18 U.S.c. Section

152, in the United States District Coun for theEastern District ofArkansas. Case No. 4:00cRI89.

If you have any questions in this regard or, youhave information evincing the attorney's continued

practice COntr.try to the StatUS of his license. pleasecontact this office.

KENNETH GERALD BRECKENRIDGEHot Springs. AR

On recommendation of the Sup~me CounComminee: on Professional Conduct. wc herebyaccept the sur~nder of tht: licen~ of KennethGen.ld Breckenridge. of Hot Springs. GarlandCounry, Arkansas. to practice law in the State ofArkansas. Mr. Breckenridge's name shall beremoved from the registry of licensed anorneys andhe is barred from engaging in the practice of law inthis State.

KENNETH GERALD BRECKENRIDGEHot Springs, All.June 7. 2001

Kenneth Gerald Breckenridge, an attorneyresiding in Hot Springs, formerly practicing law inGarland and Montgomery Counties, Arkansas. withArkansas Bar 10 #84015 has been barred fromengaging in the practice of law in this Stare forviolation of the Arkansas Model Rules ofProfessional Conduct. On the recommendation ofthe Arkansas Supreme Coun Committee onProfessional Conduct. the Arkansas Supreme Counaccepted the surrender of the law license of KennethGer.tld Breckenridge. on June 7, 200 I .

Anomey Breckenridge's Petition to Sur~nder

was b~ upon violation of Model Rules 1.3 and3.4 (e) of the Arkansas Model Rules of ProfessionalConduct. The Petit'ion and attached.Exhibits on file with the Clerk of the ArkansasSuprt:me Court demonstr.tte that the Honor.tbleRobert F. Fussell. United Snnes BankruptcyJudge made a judicial referral to the Comminee: onProfessional Conduct which resulted in aformal disciplinary complaint against Mr.

Breckenridge based upon his condua in thlttbankruplCY matters pending befo~ Judge Fussell.SpecifiCllly. Mr. Breckenridge admittedth;1( he fajled to respond in a timely maner to

various Motions and Coun Orders; fajJed to complywith a P~-Trial Order of the Court; failed to followthe directive ofJudge Fussell following various ShowCause Orders; failed to surrt:nder papers to a formerclient; failed to take action to protect the monies ofrhe debtor's estate as directed; and fajled to followspecific directives of Judge Fussell in eachbankruptcy maner.

If you have: any question in this regard or youhave information evincing the anorney's continuedpractice contrary to the status of his license. pleasecontact lhis office.

EDWARD WRIGHT, JilPulaski CouneyJune 7,2001

On recommendation of the Supreme CourtCommittee on Professional Conduct, we herebyaccepr the surrender of the license of Edward L.Wright, J. of Little Rock, Pulaski Counry,Arkansas, 10 prncticc law in the Sr3l'C of Arkansas.Mr. Wright's name shall ~ removed from meregistry of licensed attorneys and he is barred fromengaging in the practice of law in this state. It is soordered.

EDWARD L. WRIGHT, JilPulaski Counry, ARJune 7,2001

Edward L. Wright, Jr., 3n attorney residing inLittle Rock, formerly practicing law in PulaskiCounty, Arkansas, with Arkansas Bar 10 #59022has been barred from engaging in the pract'ice oflaw in this State for violation of the ArkansasModel Rules of Professional Conduce. On therecommendation of the Arkansas Supreme CourtCommittee on professional Conduct, the ArkansasSupreme Court accepted the surrender of the lawlicense of Edward L. Wright, Jr., on June 7,2001.

Anorney Wright's Petition to Surrender wasbased upon violac-ion of Model Rules 1.7(b),1.15(,),3.4«), 8.4(C) 'nd 8.4(d) of rhe ArkansasModel Rules of Professional Condua. The Petitionand altached exhibits on file with the Clerk of theArkansas Supreme Coun demonstrate that WilliamBurke Brady and Connie Brady filed a formalcomplaint against Mr. Wrighl as a result of hisconduct in the probale of their deceased father's

estate. Specifically, Mr. Wright continued torepresent the Estate and all four heirs afterdeveloping a conflici of interest by becomingpersonally involved with one of the heirs; failed romaintain the Estate funds scparue from his own bymaking unauthorized wilhdrawals; failed to obtainOrders from the Probare Judge prior to makingdistributions and paying himself fees; made severalthousand dollars of unauthorized withdrawals;prepared a false ledger in an attempt to hide theunauthorized withdrawals; falsely advised one ofthe heirs that a Global Settlement Agreement wasprepared [0 provide additional fees rather thanadvising thai the purpose was (Q recover amountsowed to the Estate; and, engaged in self-dealingwhich caused a delay in the completion of the

probate process.If you have any quest'ion in this regard or you

have information evincing the attorney's continuedpractice comrary (0 the statUS of his license, please

contact this office.

Lawyer Disciplinary ActionsORDER OF SUSPENSION

JOANN C. QUIRKLinle Rock, ARJune 29, 2001

The formal charges of misconduct upon whichthis Order is based came 1'0 the anemion of theComminee due to testimony given in U.S. v.George Nicholas "Nick"Wilson, et aI, Case No.LR~CR-99-61. JoAnn C. Quirk is an anorneypracticing in Little Rock, Pulaski County,Arkansas.

On March 20, 200 I, Ms. Quirk testified inFederal CoUrt in the above sryled case. She testifiedpursuant to a cooperating agreement with theUnited States Anorney that she be placed onpretrial diversion. She testified that in the Springof 1997, she was the Director of the ArkansasBoard of Collection Agencies. She also was

engaged in the practice of law with a significantportion of her practice involving representingchildren, especially as an anorney ad litem. Ms.Quirk learned from Senators Nick Wilson andMichael Todd, along with Mona Mizell, (all threeArkansas lawyers at the time) of a new program tofund anorney ad litem programs. Ms. Quirkassisted Mona Mizell in the writing of a gramrequest thai led to Ms. Mizell receiving fundingfrom the Administr.ttive Office of the Couns forher program for the Sixth Judicial District (Pulaskiand Perry Counties). The gram request wassubmitred June II, 1997, and was funded on July23, 1997. On August 25, 1997, Ms. Quirksubmirred a statement for her services under thegrant. The statement included work she performedprior to the implementation of the program. It alsoincluded expenses for a trip to San Francisco,California, in which she anended a conference onanorney ad litem issues. The conference was Junet, 1997, and the expenses were incurred prior tothe implememation of the anomey ad litemprogram. On August 25, 1997. Ms. Quirkreceived payment ($14,477.14) for those expensesand services from Celllral Arkansas ChildAdvocacy Services, Inc., which had received itsfunding from the attorney ad litem program. InSeptember 1997, Mona Mizell and Senator Wilsondecided to end their participation of the anorneyad litem program and refund all the moneyreceived. This action was precipitated by arequested audit of the program by theAdministrative Office of the Courts. Ms. Quirk

returned $30,000.00, representing the unearnedportion of the retainer she received from CentralArkansas Child Advocacy Services. Additionally,Ms. Quirk learned at that time that Senator Wilson

was receiving funds from the program when he was

doing no work. Senator Wilson instructed Ms.Quirk to destroy her notes and calendersgenerated from her participation in [he anorney adlitem program. Ms. Quirk destroyed some, but notall of her notes and none of her calendars.Ultimately, Senator Wilson and Ms. Mizell plead

guilty to federal felonies due 1'0 their participationin the program. Ms. Quirk entered imo acooperating agreement with the United StatesAnomey's Office. Ms. Quirk submitted herself toa federal pre-trial diversion program that requiredher to be supervised by the United States ProbationOffice. Ms. Quirk admined in her testimony attrial that she had accepred responsibility to thefederal crime of Misprison of a Felony.

Ms. Quirk affirmatively stated in her responsethat she admits to using poor judgement andmaking bad decisions that not only hun herself,but also harmed the legal profession. She statedthat she failed to report to the appropriateauthorities that Nick Wilson was receiving rentpaymenrs from Mona Mizell in excess of what thespace demanded. Ms. Quirk stated that she willcomplete her pretrial diversion program on August30,2001. Ms. Quirk stated that she completed thecases assigned to her under the ad litem program ona pro bono basis to insure that the childrenparticipanrs where not affected.

Following Ms. Quirk's receipt of the formalcomplaint, the respondent anorney offered to enterinto a discipline by consent pursuant to $eetion 8Cof the Procedures of the Arkansas Supreme CourtRegulating Professional Conduct of Artorneys(Procedures). The Acting United States Anorneyfor the Eastern District ofArkansas, who personallytried the "Nick Wilson" cases, has concurred inwriting to the discipline by consent. Uponconsideration of the formal complaint, therespondent anorney's response, the terms of theproposed consent to discipline hereinafter stated,the Alternate Comminee on Professional Conductapproval thereof, and the Arkansas Model Rules ofProfessional Conduct, the Committee onProfessional Conduct finds:

1. That Ms. Quirk's conduct violated ModelRule 8.3(a) when she failed to reporr to theappropriate authorities that George "Nick" Wilson.a lawyer, was receiving illegal rem paymenrs fromMona Mizell in excess ofwhat the space demanded.Model Rule 8.3(a) requires that a lawyer havingknowledge that another lawyer has committed aviolarion of the Rules of Professional Conduct thatraises a substantial question as to that lawyer'shonesty, lrustworthiness or fitness as a lawyer inother respects, shall inform the appropriateprofessional authoriry.

2. That Ms. Quirk's conduct violated ModelRule 8.4(c) when she submitted billable hours

incurred from May, 1997 and June, 1997 to theCentral Arkansas Child Advocacy Services, Inc.

funded by the Administrative Office of the Courtswhen the program was not implemented andfunded until July 23, 1997. She also submittedexpenses for a June I, 1997 conference in SanFrancisco, California which were incurred prior to

the implemenral of the program on July 2, 1997.Model Rule 8.4(c) provides that it is professionalmisconducl for a lawyer to engage in conductinvolving dishonesty, fraud, deceit ormisrepresentation.

1'01. l6 ,1'0. mill tOO I. T~e lrkusal La"ler U

3. 11m Ms. Quirk's conduct violatoo ModdRule 8A(d) when she: at the: request of George:"Nick~ Wilson, destroyed not'es to conceal the:participation ofMr. Wilson in the anornqad Iit'e:mprogram administert=d by Cc:ntal Arkansas ChildServices. Inc. Modd Rule: 8A(d) providesthat it is professionaJ misconduct for a lawye:r toe:ngage: in conduct that is pre:judicial to the:administration of justicc.

WHEREFORE. in accordance: with me: consen!to discipline: prescntOO by M.s. Quirk and the:Executive Director, Stark Ligon. it is the: d«isionand orde:r of the: Arkansas Supreme CourtCommitt« on Professional Conduct that JoAnn C.Quirk, Arkansas Bar ID# 91175. be. and he:reby is.SUSPE OED FOR ONE YEAR from the practiceof law for he:r conduct in this matter.

REPRIMAND

JOHN ATKINS CRAINMountain Home:, ARAugust 15,2001

The formal charges of misconduct upon whichthis Orde:r came 10 the anemion of the: Commine:eare dlle to testimony give:n in U.S. v. GeorgeNicholas ~Njck" Wilson, e:t ai, Case No. LR-CR­99-61. john Atkins Crain is an anorney practicingin Mounrain Home:, Baxte:r Counry. Arkansas.

On March 9, 2000 and Augusl 29, 2000. GretaBlanke:nship testified in a case in the: United Srat(:SDistrict Coun for the: Easte:rn Disuio of Arkansassryled U.S. v. Gcorg~ Nicholas" ick" Wilson. e:tal, Case No. LR-CR-99-61. Sh~ testifie:d mat JohnA. Cnin worked for Murrey Gride:r to ~rform

legitimate: work for the: Offi« of Child SupportEnfor«me:nt (OSCE) in the: 14th judicial District.Mr. Crain was paid $2,000.00 per month to~rform this work. In joly. 1995. Mr. Crain beganto rt=ttive: monthly payme:nts of S5.625.OO. Injanuary, 1996. the: momhly payment was inc~to 56.250.00 per month. In mrn. Mr. Crain would~kickback" to Nick Wilson a majority of thatche:ck. The: amounts varied based upon a"stateme:nt~ Mr. Cnin ttte.ived from ick Wilson.This sche:me: ended in Nove:mber 1997. Duringthis time: ~riod, Mr. Crain rc=ccived monthJypayments 10taJing $177.500.00, and. in turn. he:paid ick Wilson kickbacks lotaling $107,}40.00.

For his response Mr. Crain stated that in July.1994 he: met with Nick Wilson. Mr. Crain Statedthat he: had JUSt been de:feated for r«lc=ction asMunicipal judge and his wife: was te:rminal withcance:r at the time:. Mr. Wilson c=xplained to Mr.Crain that Mr. Wilson had a c1ie:nt. Molti Services,that would r«e:ive: a COlmaCt [Q furnish legalse:rvices for the: Office of Child Support

Enforcement in the 14th judicial District. Mr.Wilson proposed to hire Mr. Crain. Mr. Crain

stared that he would receive: $2.000.00 per monthand thaI Mr. Wilson would charge: for a refe:rraJ ft=t=

and divide the: attorney's fee as Wilson would be:su~rvising the: work. The: firsl year wen! according

j I ne lrkmll Liw!er wWlurk~lf.CI.

IJawyet' DisciplinaJ'y Actionsto plan, and Mr. Crain assumc=d that Mr. Wilson\I,"IS paid his fee: by Muhi Services. In july, 1995.Murrey Gride:r took over the administration ofMolti Services. Mr. Gride:r explainoo that MultiServices would no longe:r be: paying Mr. Wilson'sftt direct. Mr. Crain would receive a larger ch«kand Mr. Wilson would bill Mr. Crain. who wooldpay the: bill OUt of the larger check. Mr. Crainr«eivoo the: large:r cht=Ck. Mr. Wilson's bill. andme:n paid Mr. Wilson according to the: bill. Mr.Crain statc=d thaI he rdied on Mr. Wilson'sstate:ments that this arra.ng~me:nt was required byfcde:r.tl and State: law. Mr. Crain admitred that thetotal fe:e receive:d from 1994· 1997 wasSI77,OOO.oo. in which SI07.000.00 was passed onto Mr. Wilson.

1. That Mr. Crain's conduct violated Rule1.5(e:) of the: Arkansas Model Rules of ProfessionalConduce when from july. 1995 to November,1997. he: split fees e:arnoo from his c1iem. OSCE,WIth Gwrge: ~Nick" WIlson. Mr. Wilson did nowork on the: account nor was the:re: any writtenagrceme:nt betw«n the: dtc=nt, Mr. Crain and Mr.Wilson acknowledging thaI Wilson was acceptingresponsibility for the: work. Modd Rule 1.5(e:)require:s that a division of fe:e: between lawyers who

are not in the same firm may be made: only if: (I)the division is in proportion to [he servicespttformed by each lawyer or, by wrinen agreementwith the dielll. each lawyer assumes joimrc=sponsibility for the: re:presentation; (2) the: c1ie:nt isadvised of and does not obje:ct to the: participationof all the lawyers involved; and (3) the: lotal fee isre:asonable.

2. That Mr. Cnin's conduct violat'oo ModdRule: 8A(b), of the Arkansas Model Rules ofProfessional Conduct when from july. 1995 [0

Nov~mber, 1997. he: paid il1e:ga1 kickbacks toGrorg~ "Nick~ Wilson from funds Crain rec~ivcd

from OSCE. These actions on his part we:re part ofthe fe:lonious acrion det'ailt=d in a SupercedingIndictment 10 which Murrq Grider and NickWilson plc=ad guilty. Model Rule: 8A(b) provid(:SthaI il is professional misconduct' for a lawye:r tocommit a criminaJ ace that reflectS adve:rsdy on thela 'Yer's honesty. trustworthiness or fitness as ala yer in othe:r respects.

WHEREFORE. it is the: d«ision and orde:r ofthe Arkansas Supre:me: Court Commint=e onProfessional Conduct that jOH ATKINSCRAl ,Arbnsas Bar #690 12. bc: and herc=by isREPRIMANDED for his conduct in this matte:r.

DANNY RAY WILLIAMSLittle Rock. ARJUn< 25. 2001

The: formal charges of misconduct upon whichthis Orde:r is b3SC'd arose from the: complaint of

Judy Kay, Mason, dated AuguS! 22, 2000. DannyRay Williams is an anorne:y with his office in Little:Rock. Pulaski County, Arkansas.

On july 24, 1998, Mr. Williams filed a lawsuit,pro se. against the: City of Little: Rock (the City)and othe:rs in the: Unite:d States District Coun for

the: Easte:rn District of Arkansas. Mr. WiUiamsc1aimoo that the: City violatoo 42 U.S.c. 1983.inte:r alia, in its dt=alings with the: rt=moval of~e:raJve:hiclt=s ownoo by Mr. Williams. Mr. Williamssignoo both the: complaint and ame:ndoo complaintacknowlooging that the: information presc=moo wasaccurate: and true:. Ms. Mason tq)resc=ntOO the: City.Mr. Williams allc=goo in his complaint that he:ownoo a ce:nain 1983 brontt BMW which was

pro~rly insuroo as of june: 22. 1998. throughMurual Servicc Casualty Insurancc Company. Inbct, a ce:rtifioo copy of Mr. Williams' MurualService: Casualty InsuranQ Policy history rdl«toothat the: policy had bec=n canccloo on April 6. 1998.for non-paym~nt of the: policy's premium. Mr.Williams had F.tlsely presc:ntoo this same: ce:nifioocopy of insuranc~ on this vehicle: to police officersat the: tim~ of the: ae:nt that precipitatoo Mr.Williams's lawsuit. Additionally, Mr. Williamsblsely allegoo in his lawsuit that an orange: 72 hourwarning sticke:r placed on the: BMW citoo no legalaUlhority and failed lO provide: him with the: me:ansto question the impoundme:nt of this ve:hide:, whe:nin faCt, the: orange: stichr containoo the: words. "INACCORDANCE WITH ACT 1000 OF 1993ARKANSAS ODE ANNOTATED 27-50­1202." Mr. Williams also falsdyalleged that the:BMW was lOwed pursuant to a city ordinance anda coun orde:r, whe:n in fact. it was lowed pursuantto the: Arkansas Abandonme:nt Statutes.

On August 26, 1998 and Nove:mber 25. 1998.Ms. Mason propounde:d sets of interrogatories andrequests for production of docume:nts upon Mr.Williams. Mr. Williams fuiloo to file: any respollSl=to dthe:r set. despite: nume:rous requests by Ms.Mason that he: do so. On january 11, 1999. Ms.Mason wrote: Mr. Williams requesting his responsesto he:r discove:ry requests and provided him withsome: possible: dates for the taking of Mr. Williams'sdeposition.

Anothe:r wrine:n requeste:d was mailc=d onjanuary 27, 1999. which included a noti« to take:Mr. Williams's deposition on F~bruary 10. 1999.and for him to bring «min documents. Ms.Mason wrote: Mr. Williams again on january 29.1999, and February 4, 1999. r~questing hisdi.scovc:ry responses. Mr. Williams appeared onF~bruary 10. 1999. for his de:position. He: f.Uled to

bring the: requested docum~nts to the: deposition.Mr. Williams r~fused t'O answe:r c~rtain questions

and mad~ untimdy and unreasonabl~objections tocertain questions. The: de:position was stOpped andthe: Honorabl~ William R. Wilson was callat.

judge: Wilson sche:dule:d a he:aring on the:discove:ry issu(:S for F~bruary II, 1999. At the:conclusion of that hearing. judge Wilson orde:redMr. Williams to respond to all inte:rrogatories bythe: 5:00 p.m. on February 19, 1999. Mr. Williamsin o~n coun agre«! to resume his de:position on

February 25. 1999. which corresponded with anotice: give:n to him on F~bruary 10, 1999. At 4:57

p.m.• Mr. Williams filed his discovery responseswith the: ft=deral coun Clerk. He: ddive:rt=d theresponses to Ms. Mason's office: at 5:45 p.m. thatsame: day. Mr. Williams did not ane:nd his

scheduled deposition of February 25. 1999.

The next day a notice of deposition was sent toMr. Williams by Ms. Mason rescheduling hisdeposition for March 10, 1999. He fajJed to

respond or appear. Another notice was sent to Mr.Williams scheduling the deposition for April 8.1999. Again. he failnt to respond or appear. OnApril 27. 1999. Ms. Mason filed a Motion and Briefto Dismiss based upon Mr. Williams's failure: tocomply with discovery which was granted by JudgeWilson on May 17. 1999. On May 24, 1999. aMotion for Costs was filed by Ms. Mason due toMr. Williams's fajlure to appear. Judge Wilsongranrat the City $587.10 in COsts incurm:l. on June21, 1999. At the time of the flIing of the complaint,Mr. Williams had made a partial payment of theCOSts.

For his response Mr. Williams denied that therewerc= allegations made mat ~re not bas«i on fuct.Mr. Williams affirmatively stated m.u Ms. Masonshould have filed a motion under Rule II of theFederal Rules of Civil Procedure during thelitigation or filed her complaim with theComminet: al the conclusion of the litigationinstead of waiting for fwO years. Additionally Mr.Williams ~ned that the federal judge did notmake a complaint of Mr. Williams's conduct to theCommittee.

Mr. Williams stated that the discovery wastendered late. Mr. Williams stated the reason hedid not attend the February 25 and March 10deposition was due to Ihe bct he was in anautomobile accident. Mr. Williams stated that hecommunicaled that bct to Ms. Mason. Mr.Williams staled he was unaWOlfC of any otherdeposition notice. Mr. Williams affirmativelyasserted that his lawsuit was dismissed and the Cityawarded its COSts. Mr. Williams asserted that thecomplaint against him is motivated by a ~vendetfa"

against him by the City due (Q a successfulprosecution against certain City officials in LinleRock Environmental Coun.

In rebuttal, Ms. Mason stated that there was novendetta. Ms. Mason denied that Mr. WiUiams evercommunicated to her the vehicle accidem heaJleged, nor any other communication from himinforming her of his inability to attend anydeposition.

Upon consideration the formal complaint,response herein, the lestimony of Judy Kay Masonand Mr. Williams and the Arkansas Model Rules ofProfessional Conduct, the Committee onProfessional Conduct finds:

I. That Mr. Williams's conduct violated Rule3.4(d) of the Arkansas Model Rules of ProfessionalConduct when he fuiled to answer a S4:'t of

interrogatories propounded on him on Augu$( 26,1998, until ordered to by Judge William R. Wilsonby February 19, 1999; when he biled to answer a setof imerrog':l.lories propounded on him onNovember 25, 1998, umil ordered to by JudgeWilliam R. Wilson by February 19, 1999; when hefailed to bring Ihe documents requested in the

Norice of Deposition to his February 10, 1999deposition; when he unreasonably refused to answer

Lawyer Disciplinary Actionscenain questions propounded to him in hisFebruary 10, 1999 deposition; when he failed (0

appear at the resumption of his February 10, 1999deposition on the mutually agreed date and properlynoticed date of February 25, 1999; when he failedl'O appeat at the resumption of his February 10,1999, deposition despite the fuct he was properlynoticed to appear on March 10, 1999; and when he£ailed to appear for the resumption of the February10. 1999 deposition despite the hici he was properlynoticed to appear on April 8, 1999. Model Rule3.4(d)requires th.at .a lawyer shall not in pretriaJprocedure, make a frivolous discovery request or failIO make reasonably diligent efTon to comply with alegally proper discovery requesr by an opposingparty.

2. That Mr. Williams's conduct violated Rule8.4(d) of Ihe Ark.ansas Model Rules of ProfessionalConduct when, due to Mr. Williams's hiilure torespond to discovery and answer question posed tohim in his February 10, 1999 deposition, JudgeWilson was required to conduct a hearing on Mr.Williams's fuilure to respond; when due to Mr.Williams hiilure to respond to the notices ofdeposition, opposing counsel was required to file aMotion and Brief to Dismiss Mr. Williams' lawsuitpursuant to Fed. R. Civ. P. 37, which Judge Wilsonconsidered and gramed; and due 10 Mr. Williams'failure to attend the scheduled depositions,opposing Counsel was required ro file a Motion forCosts seeking reimbursement of the costs of thecoun reponer. Model Rule requires mal .a l.awyernot engage in conduct that is prejudiciaJ to the.adminiut;J(ion of justice.

WHEREFORE, it is the decision and order ofthe Arkansas Supreme Coun Committee onProfessional Conduct rhar DANNY RAYWILLIAMS, Arkansas Bar #93148, be and hereby isREPRIMANDED for his conduct in [his maner.

KEW S. CASHIONPulaski CountyM,y 3. 2001

The formal charges of misconduct upon whichthis Ordet is premised arose from Informationwhich came 10 me attemion of me Committet:concerning cermin of Kdli S. Cashion's conduct.Ms. Cashion is an anorney primarily pr.a.cticing inPulaski County. The information which came to theanemion of the Committet: related 10 fwO (2)Motions to be Relieved which Ms. Cashion filed inthe Uniled Stales District Coun, Eastern District ofArkansas, Western Division. The first of theMotions was filed on January 20, 2000, in themaner of Kristi Lynn Lindsey and Sus.an Carol Ellisv. Rodney Caner, case no. LR-C-99-479. In theMotion to be Relieved, Ms. Cashion made thefollowing statements: "thaI the Petitioner jointlyfiled this action with her former parmer CarolDiane Sorton. That since the filing of this .actionthe partnership is no longer in existence." TheComplaim on behalf of Ms. Lindsey and Ms. Elliswas filed during November 1999. The signature

page of the Complaint contains the signature ofboth Ms. Cashion and Ms. Sexton with the caption"CASHION & SECTION, Attorneys for plaintif["The second Motion to be Relieved filed by Ms.Cashion was filed on April 18, 2000. in the marterof Louis Irby v. Kem Hardy, et al, case no. 99-CY­00·882. In this Marion, Ms. Cashion makes thefollowing stalements: ~That the Petitioner wasattempting to enter into a partnership with DianeSexton, Attorney at Law, at the time this action wasfiled. That since thai time no partnership wasformed .and the Plaintiff has continued to berepresented by Diane Sexton, exclusively." TheCompl.aint in Mr. Irby's matter was filed onDecember I, 1999, afler the filing of the Complaintfor Ms. Lindsey and Ms. Ellis. The signature blockon the Complaint filed for Mr. Irby contains thesame language that appears on the Complaint filedon behaJf of Ms. Lindsey and Ms. Ellis.

Ms. Cashion was S4:'rved with [he formalcomplaint by certified, restricted delivery m.ail,pursuant to Section 5E. Procedures of the ArkansuSupreme Coun Regul.ating Professional Conduct ofAttorneys al Law (Procedures) on January 10.2001.Ms. Cashion failed ro respond to the formalcomplaint. Her bilure to respond timely to theformal complaim constitutes admission of thefactual allegations contained therein pursuant toSection 51(4) of the Procedures.

Upon considet2tion of the formal complaint .andthe Arkansas Model Rules of Professional Conduct,the Comminet: on ProfessionaJ Conduct finds:

I. Thai Ms. Cashion's conduct violated ModelRule 7,5(d) when, ar a time when she was nOlpartners with Ms. Sexton, Ms. Cashion signedpleadings implying that she was. Model Rule 7.5(d)requires that lawyers state or imply that theypractice in a partnership or other organization onlywhen that is rhe fact.

2. Thai Ms. Cashion's conduct violated ModelRule 8.4(c) when in a pleading filed January 19.2000, she averred that she had been in .a partnershipwith Diane Sexlon COntrary to her own Statement ofApril 18,2000, thai no pannership ever came to beand when in a pleading filed April 18, 2000, Ms.Cashion stated thar she h.ad nor develoJXd apartnership with Diane Sexron directlyconlt;Jd.icting her earlier statement in .a separ.a.lepleading that there had b«n a partnership. ModelRule 8.4(c) requires that a lawyer not engage inconduct involving dishonesty, fraud, deceit ormisrepresentation.

WH EREFO RE, it is the decision and order ofthe Arkansas Supreme CoUrt Commiuee onProfessionaJ Conduct rhat KELLI S. CASHION,

Arkansas Bar 1D '96006 be, and heteby is,REPRIMANDED for her conduct in this matter.

In addition, Ms. Cashion is fined, as .a separ.a.resanction for her failure to respond, pursuant toSections 51(3) and 8A(2) of the Procedures, the sumof $1000. Said fine is due and pay.able within thirty(30) days of the date that this Order is filed.

r.1.11 XI. l/f'11I2II1 lIe lrlmll Llft]er .jj

Z1MMERY CRUTCHERPulaski CountyM.y 3,2001

The: formal charges of misconduct upon whichthis Order is premised arose from informationwhich came to the anent ion of the Commirt~

concerning cerain ofZimmery Crutcher's conduCl.Mr. Crutcher is an anorney primarily practicing inPulaski County. The information which came tothe anemion of the Commin~ related to Mr.Crutcher's relationship with Richard Randle. Thebasis of the information before the Commi((~ was

the oral deposition of Richard Randle on February16, 1999, in the maller of Somhern Farm Bureauand Ricky Roberuon v. Richard Randle. Thedeposition was taken in connection with abankruptcy proceeding in the United StatesBankruptcy CoUrt for the Eastern and WesternDistrict of Arkansas, Pine Bluff Division, In rheManer of Richard Randle, debtor, case no. 98­511598,

The information before the Committee revealedthat beginning in 1993, Richard Randle, d/b/aRandle & Associat'cs, was engaged in the business ofperforming minor building construction work suchas painting and innalling sheet rock, wallpaper,border, molding, trim, elC. In April 1997, Mr.Randle obtained a paralegal certificate fromRemington College. On April 12, 1997, Mr.Randle incorporated a business entity known asIndependent Consulting Referral Service. Duringhis deposition, Mr. Randle described the nalUre ofhis business as more or less revolving aroundpersonal injury. In addition, Mr. Randle explainedmat his function was to offer help to a personinjured in an automobile accident in finding ananorney. Mr. Randle's own testimony revealed thata lot of times he obtained information regardingautomobile accidents from police reports and thenhe would sent a le1'l'er to the aceidem victim offeringhis referral services. The only attorney to whom Mr.Randle could remember referring cases was Mr.Crutcher. According to Mr. Randle, he would behired to obtain information related to the accidentif he made the referral. At no time during misperiod did Mr. Randle have a private investig:nor'slicense and he did not engage in questioningindividuals or taking statements. Mr. Randle Stated.that he charged S50 per hour for his services inobaining information.

There were a number of checks drawn on bankaccounts identified as Mays & Crutcher, PA.;Zimmery Crutcher, Jr., Attorney at Law; or,Zimmery Crutcher, Jr. Law Firm Trust Account andmade payable to Mr. Randle. During hisdeposition, Mr. Randle professed lirtle knowledgeor recollection of the reasons for the issuance of thechecks to him. The checks wrinen on theseaccounrs from about March 30, 1998, throughJanuary 20, 1999, total $13,526.56. The testimonyand the checks are indicative of a scheme and quidpro quo arrangement whereby Mr. Randle receivedcompensation in the form of purportedemploymcnt in rcturn for his referral of legal

46 The ,\rkmall,aWler www,arkbar,rom

Lawyer' Disciplinary Actionsbusiness to your law firm.

In his response to the formal complaint, Mr.Crutcher denied that Mr. Randle was ever providedany compensation for referring clients to his lawfirm. The fees paid to Mr. Randle were solely for hiscourier services, according l'O Mr. Crutcher. It wasMr. Crutcher's testimony that he needed Mr.Randle's S(:rvices becaUSC' of the large personal injurypractice that he had in Jefferson County, Arkansas,where Mr. Randle was located.

Upon consideration of the formal complaint, meresponse herein, and the Arkansas Model Rules ofProfessional Conduct, the Commil1ee onProfessional Conduct finds:

I. That Mr. Crutcher's conduct violated ModelRule 1.1 5(a) when he disbursed monies from fundshdd in his trUSt account 1'0 Richard Randle, aperson who was neither a diem nor a mird partyhaving an intcrest in such funds, to wit: (i) CheckNumber 10206 in the amount of $250; (ii) CheckNumber 10209 in the amount of $125.00; (iii)Check Number 10214 in the amount of S291; (iv)Check umber 10217 in the amount of $669; (v)Check Number 10231 in the amount ofS100; and,(vi) Check Number 10277 in the amount of$666.50. Model Rule 1.15(a) requires thaI alllawyers hold property ofclients or third persons thaIis in a lawyer's possession in connection with areprcsentation sepaT3tC from the lawyer's ownproperty and also requires that funds of a dient bedeposited and maintained in one or moreidentifiable trUSt accounts in the stare where thelawyer's office is situated, or elsewhere with theconsent of the client or third person but prohibitsthe lawyer or law firm from depositing fundsbelonging l'O the lawyer or law firm in any accountdesignated as the trUSt account, other than theamount necessary to cover bank charges, or complywith rhe minimum balance required for the waiverofbank charges.

2. 11m Mr. Crutcher's condua violated. ModelRule 7.2(d) in that he paid over monies to RichardRandle through an arrangemem whereby RichardRandle purportedly was hired to performinvestigative or other minor services in conn~tion

with legal matters in which he had referred theclient or clients to Mr. Crutcher's law firm, to wit:(i) On March 30, 1998, a check was wrinen to Mr.Randle in the amount of S J208 from the Mays &Crutcher, PA, checking account; Oi) on April 16,1998, a check was written to Mr. Randle in theamount of $300 from the Mays & Crutcher PAchecking account; (iii) on April 25, 1998, a checkwas wrinen to Mr. Randle in the amount of Siooon the Mays & Crutcher PA checking account; (iv)on May I, 1998, a check was issued to Mr. Randlein the amount of S200 on the Mays & Crutcher PAchecking account; (v) on May 18, 1998, a check waswritten to Mr. Randle in the amount of $771 on theMays & Crutcher PA checking account; (vi) onJune 19, 1998, a check was wriTten 1.0 Mr. Randle inthe amount of $250 on the Mays & Crutcher PAchecking account; (vii) on June 19, 1998, a checkwas written to Mr. Randle from the Mays &Crutcher PA checking account in lhe amount of

S1000; (viii) on July 8, 1998, a ch~k was wrinen toMr. Randle in the amount of $650 on the Mays &Crutcher PA checking account; (ix) on July 11,1998, a ch~k was issued to Mr. Randle from theMays & Crutcher PA ch~king account in theamount ofS600; (x) on July 17, 1998, a ch~k wasissued to Mr. Randle from the Mays & Crutcher PAchecking account in the amount of$270.50; (xi) onJuly 21, 1998, a ch~k was issued from the Mays &Crutcher PA checking account in the amount ofS978 payable to Mr. Randle; (xii) on July 31, 1998,a check was issued from the Mays & Crutcher PAchecking accoum in the amount of$413 payable toMr. Randle; (xiii) on August I, 1998, a check wasissued form the Mays & Crutcher PA checkingaccount in the amount of $666 payable to Mr.Randle; (xiv) on August 6, 1998, a check from theMays & Crutcher PA checking account in theamount of 5250 was issued to Mr. Randle; (xv) onAugust 19, 1998, a check was issued to Mr. Randlefrom the Mays & Crurcher I)A checking account inthe amount of S708; (xvi) on August 20, 1998, acheck was wrinen to Mr. Randle in the amount ofS183 form the Mays & Crutcher PA checkingaccount; (xvii) on August 28, 1998, a check wasissued to Mr. Randle in the amount of $585.50form the Mays & Crutcher PA checking accoum;(xviii) on September 10, 1998, a check was wrinenin the amount of 52185 to Mr. R.'lndle from Mr.Crutcher's law firm trust account; (xix) onSeptember 21, 1998, a check was written in theamount of$250 to Mr. Randle from your law firmtrust accpunt; (xx) on September 21, 1998, a checkwas written in the amount of 5125 to Mr. Randlefrom Mr. Crutcher's law firm trust account; (xxi) onSeptember 21, 1998, a check was writTen in rheamount of$291 to Mr. Randle from Mr. Crutcher'slaw firm rrust account; (xxii) on September 23,1998, a check in the amount ofS669 was written toMr. Randle from Mr. Crmcher's law firm truStaccount; (xxiii) on OclObe.r 23, 1998, a check waswrinen in the amount of Sioo to Mr. Randle fromMr. Crutcher's law firm trust account; (xiv) onDecember 21,1998, a check was wrinen to Mr.fUndle in the amount ofS666.50 on Mr. Crutcher'slaw firm trust account; and, (xv) onJanuary 20, 1999, a ch~k was wrinen to Mr.Randle in the amount ofS 107.06 on Mr. Crutcher'slaw firm operuing account. Model Rule 7.2(c)requires, in perrinent part, that a lawyer not giveanything of value to a person for recommending thelawyer's services.

WHEREFORE, it is the decision and order ofthe Arkansas Supreme CoUrt Committee onProfessional Conduc1 that ZIMMERYCRlITCHER, Arkansas Bar 10 #74029 be, andhereby is, REPRIMANDED for his conduct in thismaner.

ANN DONOVANFayeneville, ARM.y 26, 2001

The formal complaint of misconduct arose fromthe complaint of . Clay Hubbard. Mt. Hubbard

emered into an agr~mC'm with Ann Donovan.Anomer at Law, Fayen~iUc:. Arkansas. for Ms.Donovan to act as trustee of money belonging toMr. Hubbard.

On avember 9, 1996. Clay Hubbard ddiver«tt'O Ann C. Donovan, $42,000 in the form ofa checkin the amoun! of $17.000 dr:awn on the account ofHubbard Properties and $25,000 in cash. Themoney from Hubbard Properties was from Mr.Hubbard's siSler. The $25,000 was proceeds from aviatica! settlement. A receipt was signed by Ms.Donovan, Mr. Hubbard, and a witness, Kevin KitC'.The trUSt agreement W2S an informaJ agrttmc=ntwherein Ms. Donovan would distribute funds toMr. Hubbard upon requesT. From November 1996through June 1998, Ms. Donovan provided Mr.Hubbard with funds in the form of monq- orders orchecks. In July, 1998. Mr. Hubbard ~n1 Ms.Donovan a lettcr requesting that she deliver the.~maining procec.ds to him no later than July 25,1998. According to Mr. Hubbard, Ms. Donovandid nOI respond to the lener.

Mr. Hubbard, a r ide.m of Dallas, Toras, callc.dMs. Donovan on September 14. 1998 in a finalauempl to obtain the funds in Ms. Donovan'spossession. According to Mr. Hubbard, Ms.Donovan stated that she was finishing anaccounting of the funds and that shewould have a check to him by the end of the week.Mr. Hubbard received no accounting and no fundsfrom Ms. Donovan.

Mr. Hubbard, a resident of Dallas. Texas,employed a Dallas attorney 10 assist him inrecovering funds in Ms. Donovan's possession. Aletter was prepared by the Dallas attorney and ~nt

to Ms. Donovan demanding return of the funds.Ms. Donovan did nOt reply to the demand lefler.Mr. Hubbard wrote Ms. Donovan again in March,1999, and demanded the return of his funds in herpossession. Again. Ms. Donovan failed to respond

to his requesl.In March 2000, Mr. Hubbard comaac.d the

Office of Professional Conduct and explainc.d Ms.Donovan's conduct. On March 28, 2000, theExecutive Director of the Office of ProfessionalConduct wrote Ms. Donovan on Mr. Hubbard'sbehalr. Ms. Donovan failed to respond to therequest of lhe Executive Director.

Ms. Donovan responded to the Complaint fromthe Office of Professional Conduct and stated thatshe did not bdieve that she was acting in anycapacity other than as a trust« and thaI if she didhave a dient, the diem was Kevin Kite. Ms.Donovan stated that it was her understanding that

the funds we~ to be made available to Mr. Hubbardfor medjcal and mher necessary expenses but we~

not to be ddi~rc.d at Mr. Hubbard's request bur althe direction of Kevin Kile. Ms. Donovanacknowledged receipt of letters from Mr. Hubbardand she informed Mr. Kite of receipt of the letrers.According to Ms. Donovan, she informed Mr.Hubbard thai the figures he demanded and theamount she believed was in her possession were notthe same and d13t she wanted to check her recordsand discuss with Mr. Kite what to do. Ms.

Lawyer Di8ciplinary Aution8Donovan beJieved thai she had administeml. thefunds as she agr«d. to do so and had nOt bttndir«red to do otherwi~ by Mr. Kite.

An evidentiary hearing was ~t for March 16,2001 in the marter. Prior to the hearing, Ms.Donovan was subpoenaed to provide all recordsrelaling to the deposit of the $17.000 check drawnon Hubbard Properties and the $25.000 cash; allchecks written and made payable to Mr. Hubbard orMr. Kit'e; aU records maintained by Ms. Donovandemonstrating the outstanding balance of fundsprovided 10 her by Mr. Hubbard; and a copy of anApplication to the Internal Revenue Service for anEmployer Identification Number for Ihe Trust. Theinformation was to be provided on or beforeDecember 28, 2000. On December 28, 2000. Ms.Donovan faxc.d a copy of the Application forEmplo~r Identification umber to the Office ofProfessional Conduct. The olher informationrequestc.d in the subpoena was not provided as Ms.Donovan Stated that the information was in smrageand, due to the then existing wC::l.lher conditions,she was unable to access. On March 7. 2001, Ms.Donovan provided copies of money orders. checks,and payments made from Mr. Hubbard's money.

At an evidentiary hearing on March 16, 2001,Ms. Donovan appeared and was questionedconcerning the amounts received by her, theamounts paid to Mr. Hubbard and Mr. Kite, andlhe balance of funds in her possession. Ms.Donovan stated that she had known Mr. Kite for aperiod of lime and that he was concern~ about Mr.Hubbard's lISt of his money and suggested thecreation of a trust for Mr. Hubbard's behalr. Ms.Donovan agreed to act as trust«. Ms. Donovanstated that she wenl to a friend's house inFayetteville fot a Razorback foolball pl"e-game partywhere she met Mr. Hubbard and Mr. Kite. Ms.Donovan admitted to receiving the $42,000 at the

pre·g.me pany, placN it in a safe place at themutual friend's house, and wC'nt 10 the game.Following the game. Ms. Donovan took the checkto the bank, cashed the check, and placed the$17,000 cash with the $25,000 cash in her sockdrawer at home. Based on the information Mr.Hubbard provided and the information provided byMs. Donovan through subpoena, it was calculatedthat there should be $10,897.35 belonging to Mr.Hubbard in Ms. Donovan's possession. Ms.Donovan testified thai there may have ~n one or£wo additional payments for which she did nO( havecopies of money orders which may have tou.lc.d52,000.00. Ms. Donovan lestified that the moneywas currently in a safe al her home and that she

currently had in her possession $9.500.00 belongingt'O Mr. Hubbard.

Following the conclusion of the deposition. theCommitt« met in execulive session. Uponreturning from executive session, the Committeegave Ms. Donovan the choice of returning toFayeueville and delivering a cashier's check in the

amoul1l of $9500 to the Office of ProfessionalConduct by the close of business on March 23,2001. and receiving a reprimand, or facing asuspension of her license to practice law. On March

20, 200 I. Ms. Donovan providc.d a cashier's checkin the amount of $9.500.00 to the Office ofProfessional Conduct.

Upon consideration of the formal complaint, therespon~ thereto, and the Arkansas Model Rules ofProfessional Conduct, the Committee onProfessional Conduct finds:

I. That Ms. Donovan's conduct violated ModelRule 1.2(a) when the objective of the representationof Mr. Hubbard was t'O hold his funds in trust anddeliver them as requested. Model Rule 1.2(a)requires, in pertinent part, that a lawyer abide by aclient's decisions concerning the objectiverepresentalion and consult with the dient as to themeans by which they are to be pursu~.

2. That Ms. Donovan's conduct violated ModelRule 1.3 when she failed for over thr« (3) years toreturn the remaining balance of Mr. Hubbard'sfunds after he made a written request for his fundsto him. Modd Rule 1.3 requires that a lawyer actwith reasonable diligence and promptness inrepresenting a client.

3. That Ms. Donovan's conduct violated ModelRule 1.4(a) when she failed to respond to Mr.Hubbard's requestS for informal ion aboul thebalance of Mr. Hubbard's funds. Model Rule 1.4(a)requires thai a lawyer keep a dient reasonablyinformed about the StatuS of a maller and promptlycomply with reasonable requests for information.

4. ThaI Ms. Donovan's conduct violated ModelRule 1.15(a) when she f.liled to maintain Mr.Hubbard's funds as agreed to by her. Model Rule1.15(a) requires, in pertinem part, that all lawyershold propeny of dic:nts or third persons that is in alawyer's possession in connection with arepresentation separate from the lawyer's ownpropeny with funds of a diem requiml. to bedeposited and maintained in one or moreidentifiable trust accounts in the state where thela~r's office: is situatc.d, or e1srwhere with the

con~nt of the dien t.

5. Thai Ms. Donovan's conduct violated ModelRule 1.15(b) when she failed 10 promptly ddiver thebalance of Mr. Hubbard's funds to him despitenumerous requesls to do so and when she failed 10

provide Mr. Hubbard or his designatedrepresentatives with a full accounting concerningthe balance of his funds in which she was entrusted.Model Rule 1.15(b) requires. in pertinent part, withregard to funds in which a dient has an interest, thatorce:pt as stated in this Rule or otherwi~ permittedby law or by agreement with the dient, a lawyerpromptly ddi~r to the dient any funds that thediem is entitlc.d to receive and, upon request by thediem, promptly render a full accounting regarding

such property.6. That Ms. Donovan's conduct violatc.d Mood

Rule SA(c) when she faI~ly adviso:l Mr. Hubbardon more lhan one occasion that she was going to~nd him lhe balance of his funds. Modd RuleSA(c) provides that a lawyer shall not engage inconduct involving dishoneSty, fraud, deceit or

misrepresentation.WHEREFORE, it is the decision and order of

the Arkansas Supreme Court Committee on

I'll. II III. llFall 200 I

Professional Conduct that ANN DO OVAN,Arkansas Bar ID #78043, be, and hereby is,REPRlMA OED for her conduct in this matter.

DAVIS HENRY LOITINWesr Memphis, ARMay 3. 2001

The formal charges of misconduct upon whichthis Order is premised arose from the ContemptOrder of the: Arkansas Supreme Coun, onDecember 14, 2000, in the matter of

Oyde Johnson v. State ofArkansas, CR 00-815. Inthe Contempt Order, the Arkansas Supreme Counset out that Davis Henry Loftin, an attorney

praclicing primarily in West Memphis, appearedbefore them and emered a plea of guilty to a ShowCau.sc= Order. Mr. Loftin appeared before the: Counon December 7, 2000. The conduct to which Mr.Loftin entered a plea of guilty was Ihe failure: topursue an appeaJ for Clyde Johnson after filing aNotice of Appeal for Mr. Johnson in 1991. In hisresponS(' to the Commincc, Mr. Loftin admittedthat he did file a Notice of Appeal for Mr. Johnsonbur that he did not proceed with the appeal becausehe believed that Mr. Johnson did nOt wish for himto do so.

Upon consideration of the formal complaint, theresponse herein, and the Arkansas Model Rules ofProfessional Conduct, the Committee onProfessional Conduct finds:

I. Thar Mr. Loftin's conducr violated ModelRule 3.4(c) since his conduct in failing to pursue anappea.l for Clyde Johnson was determined to becontempt of the Arkansas Supreme CoUrt. ModelRule: 3.4(c) requires that a lawyer not knowinglydisobey an obligarion under the rules of a rribunalexcept for an open refusal b:.lSed on an as.senion thatno valid obligation exists.

2 That Mr. Loflin's conduct violated Modd RuJe8.4(d), to wit: (i) His failure to pursue an appeal onbehalfof Clyde: Johnson led to a substandal delay inthe administration and rt:SOlution of his appellateprocccding; and, Oi) Based upon his failure totimely pursue Mr. Johnson's appeal of his 1991conviction, the Supreme Coun was ~uirtd toconduce a show calJS(' hearing which would not havebeen necessary otherwi~. Model Rule 8.4(d)requires that a lawyer not engage in conduct that isprejudicial to the administr.ltion of justice.

WHEREFORE. it is the decision and order ofthe Arkansas Supreme Coun Committee onProfessional Conduce that DAVIS HE RYLOFTIN, Arkansas Bar ID #79196 be, and herebyis, REPRIMANDED for his conduct in this marrero

DOYLE L WEBB, IIIknton, AR

May 31, 2001

The formal charges of misconduct upon whichthis Order is premised arose from informationcoming to the attention of the Comminee on June

28, 2000, by way of a Judicial Referral made byHonorable Robert Garrett, Honorable Gary Arnold

·18 TIe lrkllw LIMj/f Mww.lrklm,.

LawYel' Disciplinal'y Actionsand Honorable: Grisham Phillips, Circuit andChancery Judges for Saline County. Theinformation related to cerra.in of Doyle L Webb'sconduct in his relationship with Merle S. Salberg,prior to her death, and later as Executor of her(':S[are. Mr. Webb is an anorney primarily practicinglaw in Bemon, aline County. In addition,information was provided in the form ofan affidavitexecuted by Kathryn La. eUe Wilson Maunder,niece of Ms. Salberg. and her sole heir ar law.

The information provided demonsrrared thatMrs. Merle Salberg, a long-time widow, died onDecember 18, 1996, at the age of eighty.six years.

On January 8, 1997, Mr. Webb, as the executornominated in her 1993 Will, filed a Petition for

Probate: of Will and Appointme:nt of PersonalRepr~mative in the Estate of Merle: S. Salberg,dteeased, Saline Probate o. 97-007·3. On theS3me day that Mr. Webb filed the Petition, he alsofiled the 1993 Last Will and Testament of Mrs.Salberg, along with the 1996 Codicil thereto. The1993 Will indicated. on its face, that it was preparedby Mr. Webb of "Webb Doerpinghaus Brown,Attorneys al Law." The 1996 Codicil indjcated, onits face, that it was prepared by Charles J.Docrpinghaus, Jr. of "Webb & DOt:rpinghaus,Altorneys at Law." The 1993 Will left Mrs.Salberg's residuary estate, including her house,alllomobile, personal effeclS, jewelry, furnishings inme house, and Stocks in my (her) name, to herni«:e, LaNelie Mazander. The Codicil, which wasexecuted on January 3, 1996, left the residuaryestate, including her houS(', automobile, personaleffects, jewelry, and furnishings in the house (hulomitting "and stocks in my name"), to Webb. Mr.Webb got all of her estate except for cerra.in jointsurvivorship bank accounts left to Richard Salberg,Jr., to LaNelle MaZOlnder, and to her son AlanMu.ander. Afler filing the Petition, Mr. Webb sentthe three a documenl enritled Waiver of Invemory,Accounting and otice. Each of the three signedtheir own individual Waive:rs, which were thereafterfiled of record by Mr. Webb. The only distributionsfrom the Salberg estate: were made to Webb. TheOrder authorizing final distribution and closure ofMrs. Salberg's Estate was entered of record. on

Augus'7. 1997, by M,. Webb.According to the Judges who reported Mr.

Webb, rumors persisted in Saline County for sometime about Mr. We:bb's involvement in Mrs.Salberg's estate. Mr. Webb explained that he wasunaware of any such rumors. When the: Judgesinitially htard the rumors, they did not report the:conduct because they did nor believe the rumorsthemselves constituted a "substantiallikdihood thata lawyer has committed a violation of the rules" ascontemplated by the: provision of the: Arkansas Codeof Judicial Conduct requiring the reporting of ananorney's conduct. However, after being contactedby a law enforcement official on June 14, 2000, adecision was made by the Judges that furtherinquiry was required. On June 19, 2000, theJudges took Mr. Webb's statement concerning Mrs.

Salberg's estate. During the meeting, Mr. Webbexplained rhal he had known Mrs. Salberg for

approximatdy twenty.five (25) years and that hehad been her lawyer for a number of years prior toher death. In his response to the Committee, Mr.Webb explained that Mrs. Salberg had been a friendto his parents. Mr. Webb also offered hisexplanation concerning the circumstances leading tothe changing of the residuary dau~ in Mrs.Salberg's Will. According to Mr. Webb, Mrs.Salberg first approached him on December 15,1995, about changing the c1au.sc= to make him irsbeneficiary. The djscussion [(>ok place in Mrs.Salberg's home. Mr. Webb rttalled that afterdiscussion of Mrs. Salberg's physica.l condition andthl: location of certain impornmt papers in herhoml:, Mrs. Salberg told Mr. Webb that she would

like for him (0 become the residuary beneficiary ofhl:r estate. Mr. Wl:bb advised thl: judges that heinformed Mrs. Salberg that he rouJd not prepare aninstrument in which he was a bendieiary.According to Mr. Webb, Mrs. Salberg then inquiredof Webb whether Charles Docrpinghaus could do itfor her. At thl: time, Mr. Doerpinghaus was rentingspace from Mr. Webb and his name appeared withMr. Webb's as "Webb & Doerpinghaus, Attorneysat Law." According to Mr. Wl:bb, Mr.Doerpinghaus also reimbursed him for a portion ofCheryl Nuno's services as a receptionist and otherexpenses. Mr. Webb denied that he and Mr.Doerpinghaus ever shared fees. He also stated thathI: did not believe thl: uS(' of joint lenerheadindicated that he and Mr. Doe:rpinghaus werepartners. Further, Mr. Webb explained to theJudges that he believed Mrs. Salberg wished to leaveproperty to him beauS(' of work he had done forher or was going to do for her. Mr. Webb alsoasserted thaI he did not believe the residuary claUS('would convey very much property. After Mrs.Salberg's death, Mr. Webb opened up her home tothe heirs and advised that he would diS3vow any

imcrest in the escare if any heir had an objccrion tothe lxquest made to him. No such obj~cion waspresented to Mr. Webb. It was Mr. Webb'sstatement to the Judges that it was only when he wasgoing through Mrs. Salberg's personal belongingsthat he found some Stock certificates. Mr. Webbwas unable to S2y exaCtly how much he inheritedfrom Mrs. Salberg's estate but it was approximatelytwO to three hundred thousand dollars. Mr. Webbadmitted that he never informed Mrs. Salberg'sfamily the size of the residual estate. He also advisedthat he was never asked to discl()S(' that information.At the hearing Webb Slated he did not inform NellMazander or the other two rdatives of the stockWebb found, beause they had signed waiversshortly after the mccting with him at his office andbecau.sc= Ms. Salberg's Will did not ~uire him to

file an inventory of estate assets. Mr. Webb

informed the Judges that he could repay the moneyifhe had to do so, bur that it would take him awhilero get the money together. Mr. Webb admjned thatMr. Doerpinghaus shared office space with him andalso shared lenerhead. Mr. Webb acknowledgedthar there was an apparent connict of interest in

having Mr. Doerpinghaus prepare the Codicil bursince Mrs. Salberg was aware of the shared office

space, Mr. Webb believed that she had waived anyconflict. Although Mr. Webb was requested to

provide the Judges with his own memorandumconfirming rhe discussion at the meeting, he did notdo so. According 10 Mr. Webb, he intended toprovide a statement concerning the m~ting. WhenMr. Webb learned the Judges intended to report themaner co the Commin~. he decided (0 present hisstarement to the Comminee. Following Mr.Webb's statement, the Judges look rhe statements ofthree other potential witnesses, Tim lenders, CherylNUllO and Charles Docrpinghaus.

At the hearing Webb conceded at least atechnical violation of Modd Rule 7.5(d) on the firmname and letterhead. and accepted responsibility forbeing in violation, saying it was nOl his intent tomislead the public. He acknowledged that there isno outward difference between the firm name andleuerhcad forms of his presenr, admiucd"partnership" with George Ellis in "Ellis & Webb"and in "Webb & Docrpinghaus," which he claimswas never a partnership.

On June 20, 2000, Mr. Jenders, former long~

lime paralegal to Mr. Doerpinghaus, provided asworn statement to the Judges. According to Mr.Jenders when he, Mr. Docrpinghaus. Ms. Nuno andMs. Ronaee Hunt. a Webb employee, drove to Mrs.Salberg's home for execution of the Codicil, Mr.Ifixrpinghaus said that he was standing in for Mr.Webb. Mr. Jenders recalled that Mrs. Salbergmentioned that she trusted Mr. Webb, that Mr.Webb was in her church and that she believed Mr.Webb would do the right thing with the money. Mr.Jenders had no recolleclion of preparing the Codicilfor Mr. Doerpinghaus or at his request, whichwould have been the norm if it was a documentbeing prepared for Mr. Dmrpinghaus or at hisrequest. Mr. Jenders reported that Mr.Doerpinghaus gave him the dear impression that hewas doing all of this for Mr. Webb.

On June 21, 2000. the Judges rook the statementof Cheryl (Best) Nuno. According to Ms. Nuno,she prepared the Codicil at the request of Mr. Webb.She explained that she prepared it at Mr. Webb'sinstruction after he met with Mrs. Salberg. Ms.Nuno also related that her recollection was thatthere was discussion in the office that it would notbe proper for Mr. Webb to be present at Mrs.Salberg's when the Codicil was executed. Accordingto Ms. Nuno. Mr. Webb requested that she get theCodicil signed while he was out of town. Ms. Nuno

confirmed this event in her September 21, 2000.affidavil. and again at the hearing. Mr. Webbacknowledged at the hearing thai he made this

request of Ms. Nuno during a ClSual conversationwhen he saw the Codicil on her desk. Ms. Nunoalso advised that she had no recollection of everpreparing any pleadings or other legal documentsfor Mr. Docrpinghaus. On behalf of Mr. Webb,Ms. Nuno submitted an Affidavit (Q the Committeedated September 21, 2000. According ro Ms.Nuno's affidavit, she does not believe that Mr.Webb was involved in the preparation of the Codicilfor Mrs. Salberg. Her recollection in the Affidavit isthat Mr. Webb. Mr. Doerpinghaus and she talked

Lawyer Disciplinary Actionsabout the Codicil. Ms. Nuno explained that shebelieved her Affidavit more accllTatcly reAected whathappened, inslead of the statement to the Judgeswhich was given over the telephone withom theopportunity 10 reflect upon the events whichoccurred over four (4) years ago. At Ihe hearing Ms.Nuno said the only change from her swornstatement to the judges that her affidavit was offeredto correCI was that Mr. Webb had instructed her inthe preparation of the Codici1. At the hearing shestated she had prepared the Codicil at the request ofMr. Docrpinghaus.

On June 23, 2000. the Judges took the swornS[alemenr of Charles Doerpinghaus. Mr.Doerpinghaus asserted that he spent between 30and 45 minutes at a private mC(:ting with Mrs.Salberg and that she explained to him what shewanted to be done in the Codicil. It was Mr.

Doerpinghaus' recollection thar he also explainedthe possible conflict of intercst he had through hisrelationship with Webb to Mrs. Salberg at both thismeeting and again prior to execmion of the Codicil.Ar the hearing Doerpinghaus indicated there mayhave been some situations where Webb and heshared fees, or adjusted accounts between them forrent and other shared expenses, when Doerpinghaushandled some cases for Webb when Webb could nOIa['(end coun.

Mr. Webb steadfastly denied that he prepared theCodicil or that he caused the Codicil [Q be preparedin violation ofArkansas Model Rule 1.8(c). He alsodenied that there was a violation of Arkansas ModelRule 1.10(a), because neither he nor Mr.Doerpinghaus considered themselves pan of a firm.Mr. Webb did admit that the letterhead utilized atthe time complained of herein carried the names of"Webb and Doerpinghaus," but he did nOI believethat represented to anyone that Mr. Doerpinghausand he were partners.

At Ihe hearing the evidence developed that Webbmay have received as little as $300,000 and as muchas $320,909 (gross) from the Salberg Esrate. Heaffirmed that he found the Salberg stocks in herhouse between the family conference al his lawoffice on December 23. 1996, and January 20,1997, when he tendered the Stocks to the local officeof Edward Jones & Company. where they werevalued at $198,325 as of January 31. 1997. Webbalso stated that he never tOld anyone. other thanEdward Jones & Company, of the e"istence of thestOcks or their value until his interview with thejudges in June 2000. Other assets Webb receivedthrough the Salberg estate were: her house (sold for$80,000 gross in June 1998); her automobile (soldfo, $7,000 '0 Rich",d Salberg, j,. in May 1997);personal effects and furnishings (sold at auctionAugust 1997 for $2.746 net); stock dividends onthe Edward Jones account through Augusl 1997 of$1.928; Union Bank savings account No. 29977 of$8,421; Union Bank checking account No.1 05400with an estimated net of $21,149 after paying hornehealth care bills; and Ms. Salberg's 1996 federalincome tax refund of$I,340. At the hearing Webbclaimed unitemized expenses as executor against theassets he received.

Upon consideration of the formal complaint. theresponse thereto, evidence produced at the hearingMay 17 18, 200 J, and the Arkansas Model Rules ofProfessional Conduct, the Committee onProfessional Conduct finds:

I. That the conduct of Doyle L. Webb, II.violated Model Rule 7.5(d) when he and Mr.Doerpinghaus held themselves out to be in Ihepartnership of "Webb and Doerpinghaus" onletterhead, the Salberg 1996 Codicil. and otherdocuments even though they assert that they werenot actually partners in 1995-1996, or at any 01 hertime. Model Rule 7.5(d) requircs that lawyers maystate or imply that they practice in a partnership orother organization only when that is the faCI.

2. That the conduce of Doyle L. Webb. II,violated Model Rule 5.3(c). Cheryl Best (nowNuno) and Ronaee Hunt (now Hamby) were

employed at all limes relevam hereto by DoylcWebb's law firm as his legal secretary/receplionistand his paralegal, respeclively. Hunt was one of twOwitnesses to the January 3. 1996, execution of herCodicil by Merle S. Salberg, and Best notarized thesignatures to that instrument of Mrs. Salberg andher twO witnesses. The acts performed by Best andHunt were acts that could not have been performedby Doyle Webb without violating the Model Rulesunder the faCtS of this case. Webb ratified theconduct of these twO employees of his law firm andhe is responsible for their conduct, which would bea violation of the Model Rules if engaged in by Mr.Webb. Model Rule 5.3(c) provides that with respectto a non-lawyer employed or retained by orassociated with a lawyer, a lawyer shall beresponsible for the conduct of such a person thatwould be a violation of the rules of professionalconduC1 if engaged in by a lawyer, if the lawyerorders, or with the knowledge of the specificconduct, ratifies the conduct involved.

3. That the conduct of Doyle L. Webb. II,violated Model Rule 8.4(a). Knowing the ModelRules prohibit him, or his law firm, from preparinga Codicil for Mrs. Salberg to execute that wouldleave Webb a substantial testamentary gift, throughhis acts and those of his law firm secretary CherylBest and his paralegal RonaC(: Hunt. Webb assistedCharles Ifixrpinghaus, a lawyer associated wit'hWebb. in preparation and execution of the SalbergCodicil. Cheryl Best prepared the Codicil, andprobably frolll a previous Codicil prepared in 1994for Salberg by Webb. According to her affidavit,Best, at Webb's suggestion, told Doerpinghaus itwas time to get the Salberg Codicil executed whileWebb was out~of-Iown in early January 1996, whichaction was Ihereafter promptly accomplished.Model Rule 8.4(a) provides it is lawyer misconductfor a lawyer 10 violate or attempt to violate the rulesof professional conduct, knowingly assist or induceanother to do so, or do so through the acts of

another.4. That the conduct of Doyle L. Webb, II,

technically violated Model Rule 1.10(a), bUI theComminee assesses no sanction for this violation.Charles Doerpinghaus, a lawyer associat'ed withDoyle Webb, had the Codicil prepared and

fol. l6 SI. 4/I'all tOO1 The ,Irkmas I,a"yer ,19

presented to Merle Salberg, and executed by her onJanuary 3, 1996. Doyle Webb was prohibited fromdoing these acts himself by Model Rule 1.8(c). As ananorney associated with Webb, Doerpinghaus alsowas prohibited from doing these acts, unless theconflict of interest was waived by Mrs. Salberg. TheComminee finds Doerpinghaus explained to Mrs.Salberg the relationship between Webb and hesufficiently and that she waived any conflict ofimerest in Doerpinghaus handling her Codicil.Model Rule 1.1 O(a) requires, in pertinent part, thatwhile lawyers are associated in a firm, none of themshall knowingly represent a client when anyone ofthem practicing alone would be prohibited fromdoing so by Rules 1.7, 1.8(c), 1.9,2.2, or 3.7.

5. Bya vote of 4*3, that the conduct of Doyle L.Webb, II, did not violate Model Rule 8.4(c), whenWebb, as executor of the Merle Salberg Estate, failedto disclose to Kathryn LaNeIJe Mazander, the soleheir at law of Merle Salberg and the formerresiduary beneficiary under her 1993 Will, theexistence of stocks valued at $198.325.00 in thename of Merle Salberg that Webb found in Mrs.Salberg's house on or before January 20, 1997 afterher death. Mr. Webb had provided Ms. Mazander awaiver of inventory, accounting and notice ofprobate proceedings in the Salberg Estate, which sheexecuted and which he filed for her on January 21,1997. Model Rule 8.4(c) provides a lawyer shall notengage in conduct involving dishonesty, fraud,deceit, or misrepresentation.

6. That the conduct of Doyle L. Webb, II, didnot violate Model Rule 1.8(c), when the 1996Codicil to Mrs. Merle Salberg's 1993 Will wasprepared by Charles Doerpinghaus, an attorneyassociated with Mr. Webb. The Codicil resulted inMr. Webb receiving at least $300,000 in assets fromMrs. Salberg's estate. Model Rule 1.8(c) requires, inpertinent part, that a lawyer nOt prepare aninstrumem giving the lawyer any substal1tial giftfrom a dient, including a testamentary gift, exceptwhere the client is related to the donee.

7. That the conduct of Doyle L. Webb, II, didnot violate Model Rule 1.7(d). Mr. Webb whileacting as executor, anorney, and sole beneficiary ofthe estate of Merle Salberg, learned an assets of theestate was stocks valued at $198.325.00, a factwhich he disclosed to no one, including KathrynLaNelle Maunder, the sole heir at law of Mrs.Salberg and the former sole beneficiary under her1993 Will. Model Rule 1.7(b) provides a lawyershall nOt represent a client if the representation ofthat client may be materially limited by the lawyer'sresponsibilities to another client or to a thirdperson, or by the lawyer's own interests, unless (I)the lawyer reasonably believes the representationwill not be adversely affected; and (2) the clientconsents after consultation. When representation ofmultiple clients in a single matter is undertaken, theconsultation shall include explanation of theimplications of the common representation and theadvantages and risks involved.

WHEREFORE, it is the decision and order ofthe Arkansas Supreme Court Committee onProfessional Conduct that DOYLE L. WEBB, II,

50 Tie lrkalSls LaWf!r www.ark~ar.ClI

Lawyet' Disciplinal'y ActionsArkansas Bar ID #82175, be, and hereby is.REPRIMANDED and fined $1,000.00 for hisconduct in this matter. The request for restitutionmade by the Office of Professional Conduct isdenied. Any petition filed under Section 8 of theCommittee's Procedures by the Office ofProfessional Conduct seeking paymem by Webb ofthe COSts of investigation and any other COStS in thiscase shall be heard at the July 2001 Committeemeeting.

CAUTION

JOHN LEE MARTINSpringdale, ARMay 25,2001

The formal charges of misconduct upon whichthis Order is based arose from the complaint of FredN. Paine. John Lee Martin, an attorney practicingin Springdale, Washington County, Arkansas wasthe attorney for Mr. Paine in the case styled, KatrinaPajne v. Fred Paine, Washington County ChanceryCoun No. E 98-439.

On May 17, 2000, a Temporary Order wasconsemed to and entered in the above styled action.Mr. Paine received temporary custody of his childand agreed not to seek child support from Ms. Paineat that rime. A trial date was ultimately set forAugust 8, 2000. On August 7, 2000, Mr. Painecalled Mr. Martin's office to inquire as to the statusof the August 8, 2000 trial date. He was informedthat the trial date was "bumped." On August 8,2000, Dana Dean Watson, Ms. Paine's counsel sentan Agreed Order to Mr. Martin. On August 9.2000, Mr. Paine again caJled Mr. Martin's office toinquire as to the new trial date. Mr. Paine was toldthat Mr. Marrin had received a proposed AgreedOrder. Mr. Paine requested that the proposedAgreed Order be Faxed ro him. Mr. Paine receivedthe faxed Agreed Order on August II, 2000. Mr.Martin consented to the Agreed Order and allowedit 10 be entered on August 10, 2000, withoutconsulting and obtaining the agreement of Mr.Paine. The Agreed Order allowed Ms. Paine to

continue not to pay child support. On August II,2000, when Mr. Paine received his copy of theAgreed Order by fax, he called Mr. Martin's officeand informed the office that he objected to the

Agreed Order, especially regarding the child supportissue. Subsequently, Mr. Paine terminated Mr.Martin's representation of him. A Motion to SetAside the Order was filed by Mr. Paine's newcounsel. The Motion was denied by theWashington County Chancery Court on November28,2000.

Mr. Marrin admitted that he signed and allowedthe Agreed Order to be filed in this case withoutreviewing the Agreed Order with Mr. Paine. Mr.Martin admitted that it was his incorrectrecollection of what Mr. Paine wanted that causedMr. Martin to execute and return the Agreed Order.When Mr. Martin learned of his error, Mr. Martincontacted opposing counsel on August 14, 2000.

Mr. Marlin prepared a Motion to Set Aside theAgreed Order and was prepared to file it, when Mr.Paine te:rminated his representation. Mr. Martinwrote Mr. Paine acknowledging, the: termination,the instruction (0 do no further work for Mr. Paineand specificaJly advising Mr. Paine he had 90 days toset aside the Agreed Order. Two weeks later, Mr.Paine stated he che:cked the circuit clerk's file tonote whethe:r Mr. Paine:'s Motion to Set Aside hadbeen filed. It had not. He again wrote Mr. Paine.On August 28, 2000, the Motion had still not beenfiled. Mr. Marrin called Mr. Paine and informedhim of the lack of a Motion in the file. Mr. Painestated that another anorney was handling theMarion. The Motion was filed on October 6, 2000by Mr. Paine's new counsel. Mr. Martin submittedan affidavit to the Court as to the facts of the maner.On November 28, 2000, Judge Storey denied theMotion.

Following Mr. Martin's receipt of the formalcomplaint, the respondent attorney offered to enterinto a discipline by consent pursuant to Section 8Cof the Procedures of the Arkansas Supreme COUrtRegulating Professional Conduct of Arrorneys(Procedures). Upon consideration of the formalcomplaint, the respondent anorney's response, theterms of the proposed consent to disciplinehereinafter stated, the Alternate Committee onProfessional Conduct approval thereof. and theArkansas Model Rules of Professional Conduct, theCommittee on Professional Conduct finds:

1. That Mr. Marrin's conduct violated ModelRule 1.3 when he received a proposed Agreed Orderon August 8, 2000 and approved the Agreed Orderthe same date without communicating with hisdient or providing a copy to the diem until AugunII, 2000. Model Rule 1.3 requires that a lawyer actwith reasonable diligence and promprness inrepresenting a client.

2. That Mr. Martin's conduC! violated ModelRule 1.4(b) when he entered into an Agreed Order onAugust 8, 2000 in his dient's behalf without seeking

the diem's approval, advising his dient of thecontents of the Agreed Order, or providing the dienta copy of the Agreed Order until August II, 2000.Model Rule 1.4(b) requires that a lawyer explain amatter to the extent necessary to permit me client tomake informed decisions regarding therepresentation.

3. Tim Mr. Martin's conduct violated ModelRule 8.4(d) when on August 8, 2000 he entered intoan Agreed Order without his client's consem. TheAgreed Order was entered on August 10,2000. OnAugust 11, 2000, the dient learned of the Order andcommunicated his disapproval to Mr. Marrin. Theclient retained new counsel to set aside the Agreedorder requiring funner proceedings of the Court inthis matter. Model Rule 8.4(d) requires that a lawyernot engage in conduct that is prejudicial to theadministration of justice.

WHEREFORE, in accordance with the consemto discipline presented by Mr. Martin and theExecutive Director, Stark Ligon, it is the decision andorder of the Arkansas Supreme Coun Committee onProfessional Conduct that John Lee Marrin, Arkansas

La\\~et' Disciplinat'y ActionsBa. 10 #89215. Ix, and h..eby is. CAlITlONEOfor his conduct in this matter.

JIMMY RAY BAXTERIkmon.ARMay 3. 2001

The formaJ complaint of miscondua~ fromthe complaiOl of Joy Pack. Ms. Pack emplO}"<:dJimmy Ray Baxter, an :morney practicing lawprimarily in Iknlon, Arkansas, for the' pulpOS(: ofrepresenting heT in ra:overy of damages from foodpoisoning at a TennC':SStt rtSfauram.

In Oaobcr. 1998. Ms. Pack and heT husband ~reuaveling from Knoxville. Tc:nnastt to their home: inGreers Ferry, Arkansas when they stoPIXd inLawrenceburg, TennC':SStt to C2t and s~nd the night.From the resraunnl (0 their hOld room, Ms. Packb«ame ~ry ill. Ms. Pack was rakeR to me loc::;L\hospital and was [re3.t~ and rdosed. Ms. Pack andher husband returned home to Arkansas the next day.

Upon returning to Arkansas, Mr. and Mrs. Packcalled the restaurant concerning the incidC'n1. As merestaurant owner did nOI return the rdephonc= caJls,

the Packs sought legal assistance. As Ms. Pack hadpreviously lived in Benton, Arkansas. and Jimmy RayBaxter, Allorney at l:J.w, Benton, Arkansas. hadhandled a previous legal mailer for her, Ms. Packcontacted Mr. Baxter for legal assistance.

In November 1998. Ms. Pack met with Mr.Baxter and disclissed her marter. Mr. Baxter st:ued toMs. Pack in the (ourst of the discussion that themailer would never go to coun. Mr. Baxter agreed torepresent her in themaller.M r. Baxter mereafter senta letter to the Tennesstt res12urant demanding that itsliability insurer ~ notified about the incident.

On March 12. 1999. Mr. Baxter sent Ms. Pack alater asking her to come to his office on March 23,1999. and make a statement to John Moore. a claimsadjuster with Mid South Claims. Mid Soum Oaimsrepresented the insurance company for me Tenness«res12urant. Ms. Pack appeared at Mr. &xter's officeand made her S12tement to the claims adjuster.

Ms. Pack st:llro dUI she made six or scvc=n ca.lls toMr. Baxler's office following me March 23. 1999,meeting, bur was nevt:r able ra talk to Mr. &xter. InFebruary 2000, Ms. Pack was able to 12lk to Mr.&xter and was raid to come to his office on February14.2000. Ikfore she left her home to go to Ikmon,Ms. Pack rt'CCivtd. a telephone ca.ll from Mr. Baxter.According to Ms. Pack. Mr. Baxter informed her thathe was sorry to teU her that he did not knowTenness« had a one ~r statute of limi12rion onfiling that type ofcase and thar the time for filing meC2se had passed. He stated mat he thought he had thesame amount of time as here in Arkansas, which wasmore than the one year.

In his response, Mr. Baxter denied that he violatedModel Rule 1.1. Mr. Baxter Stated that the manerwas an Arkansas case and not a Tennessee case. As aresulr, according to Mr. Baxter, the Arkansas statuteof limitalion applies, nOt the one year Tennesseestatute oflimit3tion. According to Mr. Baxter, therewere two parties identified as jointly and severally

liable to Ms. Pack for her food poisoning injury: therestaurant and the food supplier. The food supplier isa foreign corporation registered to do business inArkansas and, according ro Mr. &xter, Ms. Packcould bring a products liability suit in Arkansasagainst the food supplier. As Ms. Pack could bringsuit in Arkansas, the Arkansas statute of limirationwould ~ the applicable S12rute of limi12rion. Mr.Baxttt S12tro that he determined t:arly on in thematter that he would not file suit in any other forumother than Arkansas.

Mr. Baxter denied that he violated Model Rule1.3. Mr. Baxter nated that he met with Ms. Pack onovc:m~r 17. 1998 concerning her claim. Onovembt:r 17, Mr. Baxter sem a letter ro the

Tennessee restaurant placing it on notice of Ms.Pack's claim. Upon rt'CCipt ofa letter from the claimsadjuster in Dt:ct:mber 1998. Mr. Baxter notilled Ms.Pack 10 con12et his office. Ms. Pack conracted hisoffice, spoke with a mem~r of&xter's staff and was

informed of the request from the claims adjustor.Ms. Pack provided the requested information. Mr.Baxl'er informed Ms. Ilack of the adjustor's requestfor a statement fromMs. Pack and Ms. P-dck and Mr. Baxter's sraffarr:tngcd dates and times for the natemem. On thedare of the statement to the adjustOr, Mr. Baxterconferred with Ms. Pack about her claim. Mr. Baxterrequested records from the nearing physician andhospital concerning Ms. Pack's treatmem and, oncethe information was obtained. submitted theinformation to the claims adjustor. Upon receipt ofthe claims adjustor's letter wherein he advised Mr.Baxter that the insurance carrier would not considerthe claim because: of the Tennessee one year srarure oflimitation, Mr. Baxter informed Ms. Pack of theclaims adjustor's decision. According ro Mr. Baxter,me Tennessee stature oflimil3tion is not a bar to Ms.Pack's claim as Ms. Pack could still sue the foodsupplier in Arkansas.

Upon consideration of me formal complaint. theresponse: thereto. and the Arkansas Model Rules ofProfessional Conduc(, the Committct: onProfessional Condua finds:

I. That Mr. Baxter's conduct violatM Modd Rule1.1 when he failed to ascertain the starute oflimi12tion period for filing a negligence case inTennessee. Model Rule 1.1 requires that a laW)'l=rprovide competent reprcscnt2tion to a client.including the legal knowledge and preparationnecessary for the representation.

2. That Mr. Baxter's conduct violated Model Rule

1.3 when he failed to act in a timely manner to getMs. Pack's legal matter settled or a civil aaion filed

before the S12tute oflimi12tion expired. Modd Rule1.3 requires th:H a lawyer act wirh reasonablediligence and promptness in representing a client.

WH EREFORE. it is the decision and order of theArkansas Supreme Coun Comminee onProfessional Conduct that JIMMY RAY BAXTER,Arkansas Bar ID #78012, be, and hereby is,CAUTIONED for his conduct in this matter.

__'10

Continued from page 11

usage (city, township, county. district,

erc.). It seems imended co provideAexibility in areas where the case lawhas disallowed reasoned solutions to

practical problems - such as where acity is located on a county line ­without abrogating the provision thatthere be at least one court per county. Itwill be interesting to see how that termdevelops. While I have omitted anysignificant discussion of this section inthe text, suffice it to say that, somehow,this section factors into the reasoningof [hose who hold [ha< Arnendmem 80

repealed countywide jurisdiction ofmunicipal courts.

29 For those who argue that Amendment80 repealed counrywide jurisdiction.the phrase majority o/tlectors within tht

district they strvt triggers a thoughtpattern envisioning a boundary withinwhich all vorers (in the judge's election)live and within which a crime mustoccur for that judge to have jurisdictionover the perpetrator. However, I believethis section's sole significance lies in itschanging the electoral quantum, frompluraliry to majority. for district courtjudges.

30 Black's Law Oic<ionary (5[h ed. 1979)states that the word juriJdicrion "is aterm of large and comprehensiveimport" and provides over a page ofdefinitions for the word and for phrasesencompassing the word. Perhaps themost accurate nuclear definition,however. is "the legal right by whichjudges exercise their authority."Although it may be error to do so, Iavoid extensive definition of this basicterm, assuming the reader to know andunderstand the basic distinctionsamong in personam, in rem, andsubject maner jurisdiction.

31 Su id.32 Section 10 provides mat the legislature

is to establish districts and theappropriate number of judges for each,districts to be composed of "conriguousterritories." This, read wirh Section7(0) ("A Oi",ic< Judge may se",e inone or more counties") vis-a-vis jonts,

Amendment 80Continued on page 52

\'01. 36 No. ,1I1'a1l100 I The ,Irkmas l,a~j1f \I

1104 South Walton Blvd., Suite 20, Bentonville, AR lZ712501-271-2237

INC

conditionally released, "shall be 111

probate coun of the county where theperson currently resides); 16-60-109(contract actions against nonresident

may be in county of plaincifF's residence

when claim arose); 16-60-202 (no venue

change in civil actions unless necessary

for impartial rrial); 23-32-1505

("foreign invesror companies" may sue

and be sued in county of residence of

any party ro the suit; where land is

involved, venue shall be in the county

where land is locared); 28-40-102

(venue for probate and administration

of will); 28-65-202 (venue for

appoimmelH ofguardian); 28 U.s.c. §§1391 (general venue statute for all civil

actions in United States District Court);

1965 (venue in RJCO cases); 47 U.S.c.

§ 227(F)(4) (venue for states to file civil

actions against unlawful telephone

solicirors). This list is far from complete.

Searches for venue on electronic legal

research servers produce dozens of

statutes that contain the word.

38 E.g., ER. Cr. P. 18: "Except as orherwise

permitted by statute or by these rules,

the prosecution shaH be had in a district

in which the offense was committed.

The court shall fix the place of trial

within the district with due regard to the

convenience of the defendant and the

witnesses and the promptadministration of justice." A search of

Arkansas court rules for venue reflectsonly seven that contain the word: A.R.

Cr. P. 21.3 (twO or more offenses are"related" if, inter a/in, "within the

jurisdiction and venue" of same court);

24.8 (when pleading to offenses

committed III other jurisdictions.

defendant requesting transfer of charges

is deemed to waive "venue as ro an

offense committed in another

governmental unit of the srate"); AR.Inf. Ct. 2 ("These rules shall nor be

construed to extend or affect the

jurisdiction of the inferior courts ... or

the venue of actions therein"); A.R. Civ.

I~ 8, 12, & 82; and Procedures of the Ct.

Reg. Prof. Conducr §5 (venue for

atrorney disbarment proceedings).

FrankHamlin

co him are from private correspondence

in August 2001.

36 Webb, supra Note 13, 323 Ark. at 87

(Hickman, dissenting).

37 E.g., Ark. Code Ann. §§ 5-2-317 (venue

for some persons committed to DHScustody "may be in" Pulaski Probate,

Nimh Division"; for some who've been

SidMcCollum

JackDavis

Museum Center, Suite 10, 500 East Markham StreetLittle Rock, AR lZZOI

501-376-2121

Amendment BDContinued from page 51

supra. Note 13, and Sexson, supra. Note

13. addresses the need in cities on

county lines.

33 Ark. Code Ann. § 14-56-413 (Rep!.

1998).

34 See Note 26, supra.35 Judge Stewart graciously agteed to be

quoted in this article. Quoccs artribured

423 Rogers Avenue, Suite 101, Fort Smith, AR lZ902501-783-1776

Amendment BDContinued on page 53

~1 TIe lrkmls LI~W ~lIw.lrkllr.CI.

Amendmenl 80Continued from page 52

39 Ark. Consr., Amend. 80, §7(A).40 Ark. Const., Amend. 64; Ark. Code

Ann. 16-17-704 (1999 Supp.).41 Ark. COlm., Amend. 80, §7(B).

42 The process for the Supreme Coun'spromulgation of a rule is, as best I can

rcll, not reduced to a formulaic process.

Thus, any suggestion I might makeregarding how to employ it would bespeculative. There are comminces inplace as w most sers of rules, andmembership of those commirrees is amatter of public record.

43 See State v. Lester, 343 Ark. 662, 38S.W3d 318 (2001); Clirtis v. State, 301Ark. 208, 783 S.W2d 47 (1990).

44 Ark. Const., Amend. 80, §7(B).45 See McGrew II. State, 338 Ark. 30, 991

S.W2d 588 (1999); McArthur v. PulaskiCounty Circliit COllrt, 253 Ark. 501,504488 S. W2d 5 (J 972).

46 See State v. Roberts, 321 Ark. 31, 900S.W 2d 175 (J 995).

SItlNIICMI IIIcIsIonsContinued from page 40

warranto find the OriginaLjurisdiction oftheSupreme Court ofArkansas, 20 UALR L. j.89/ (1998).

1 See Stare ex reI. Brooks v. Baxter, 28

Ark. 129 (1873).2 The opinion does nor appear in the

official Arkansas Reports. It can be

found in Arkansas Supreme CourtOpinion Book C, No.2, ar 355.

3 14 u.s. Op. Arry. Gen. 391,400 (May14,1874).

4 See Baxrer v. Brooks, 29 Ark. 173, 187(1874).

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Kenneth M. ParsleyKennerh M. Parsley, 87, Former

Dardanelle City Anorney, died Monday,May 14 ar Dardanelle. He was a 1945gradu3re of the University of Arkansas LawSchool and a 50 year member of rheArkansas Bar Association. He had been amember of me Dardanelle Chamber ofCommerce, Rotary, Arkansas Oil and GasCommission, and rhe American Legion.He was a avy veteran of World War II anda lay leader, aclminisrcarive board memberand adult Sunday School reacher at FirstUnited Methodist Church. He is survivedby his wife, Anna Love Harmon Parsley, adaughrer, and omer F.unily and friends.

Charles L. GocioCharles L. Gocio, 78, passed away on

Monday, June 18. A former Benron CountyProsecuting Acromey for ten years, Me.Gocio graduated from the University ofArkansas School of Law in 1949 andpracticed law in Bemonville for 50 years.He was a member ofthe Bemon Coumy BarAssociation, Arkansas Bar Association andAmerican Bar Association, BentonvilleChamber of Commerce, the Kiwanis Club,Masonic Lodge #56 and me Shrine cimirarTemple. He sat on rhe Bates MedicalCemer Board of Directors for 26 years.

According to newspaper repons, Mr.Gocio served in rhe U.. Army ignal Corpsand was a communications officer duringWorld War II. One of his grandmomers,Marie Messa.ger, was a pauiot during theAmerican Revolution and is honored with aplaque at Arkansas Post. During the CivilWar, Gocio's family lived at the MasseyHotel in Bentonville, which featuredprominencly in me Barrie of Pea Ridge andis now the headquarters for the WaltonFoundation. Mr. Gocio's wife, BerryeCurrier Gocio, described him as a man wholoved the law, and an avid sportsman whoenjoyed fishing, hunring and beingoutdoors. He is also survived by a daughter,son, gra.ndchildren, step-grandchildren andstep-great-grandch ildren.

Thomas E. SparksThomas E. Sparks passed away on June

29 at the age of 89. Born in Crossett, Mr.Sparks was a long time legal, civic, businessand church leader in Southeast Arkansas.

He earned a law degree from Washingron &Lee in 1935 and joined the Fordyce lawpractice founded by his grandfather,Thomas Bortemly Morron and owned byhis uncle, Fred Morron. He was acontinuous member of the Arkansas BarAssociation for 33 years. During that time,he served on at least ten commirrees and inthe House of Delegares. He was a 1995Sustaining Member of the Association.

Mr. Sparks served six two-year terms inrhe Arkansas House of Representatives,commencing in 1966. He was also acrive innational politics. He served on the Board ofDirectors of the Fordyce Bank and TrusrCompany, as a Trustee of the HendrixCollege Alumni Association and a memberof the Fordyce Chamber of Commerce. Hewas a past president of the Fordyce RotaryClub and a Paul Harris Fellow.

A lifetime member of the MethodistChurch in Fordyce, he raughr SundaySchool and exercised his considerablemusical talent by singing with the churchchoir. Mr. Sparks also played saxophone,clarine< and sang wim college bands andperformed at resorts during summer breaks.He served as a communications specialistduring World War II.

Wdton E. SteedWilron E. Sreed, 78, died June 8 in Pine

Bluff. He was a graduate of the Universityof Arkansas School of Law in 1951 andpracticed law for 50 years. Mr. Steed wasCity Anorney from 1954 to 1958 andMunicipal Judge from 1958 unri11970. Hewas a former presidem of the ArkansasMunicipal Judges Council and a member ofme Arkansas and me Jefferson County BarAssociations.

Mr. Steed was a hriner and member ofrhe Masonic Lodge, the American Legion,and the VFW He was an Army veteran ofWorld War II. He had a lifelong inreresr inspom playing baseball and football whileattending Wake Forest University. Later inlife, Mr. Sreed played rennis and enjoyedhunting and fishing. He was the organizerand first president of me Pine Bluff TennisPacrons Association.

Mr. Steed is survived by his wife, SunnyHogan Steed; a son, a daughter, a sister andrwo grandchildren.

rephen Edgar Kirk, 46, of Morrilron diedAugusr 22. He was a past ProsecutingAtcorney in the 15th Judicial District ofArkansas. Mt. Kirk was edico( of theArkansas Traveler at the Universiry ofArkansas in 1977, and a member of PhiKappa Alpha. A member of Firsr BaprisrChurch, he is survived by his wife, SuellenPetrus Kirk; (\110 daughters; his mother;brother; and many ocher relarives andfriends.

Cecil Randolph Warner, Jr.Cecil Randolph Warner, Jr. passed away

on August 29 at age 72. He was a magnacum laude graduate of the University ofArkansas (1950) and Harvard Law School(1953). He was an edimr of the HarvardLaw Review. He was a partner with hisfather and uncle in the Warner and WarnerLaw Firm (now Warner, Smith & Harris)founded in FOr[ Smirh in 1887. The realestate and trial lawyer was a past chair of theexecutive committee and general chair of theYoung Lawyers Section of me Arkansas BarAssociation. He was also a member of thePulaski County and American BarAssociations and a former instructor at theUniversity of Arkansas School of Law. Hewas vice chair of the ArkansasConsrirurional Review Commirree (J 967)and vice president of the Seventh ArkansasConsrirurional Convenrion (J 969-70).

Mr. Warner co-founded FairfieldCommunities, Inc. in 1966 and was itsPresident and Chief Executive Officer(CEO) from 1976 unril 1991. He wasCEO of Ensco from 1991 unril 1993 and ofthe Worn Company in Poreau, Oklahomafrom 1993 unril 1997. He was a member ofFifty for me Future and me boards ofdirectors of First Commercial Bank, St.Vincent Infirmary Foundation and Centersfor Youth and Families. He also sar on me

Th~ Arknmas Bar Foundation Ilcknowkdgn with graufulllppruiation rlu "uipr ofmnnorilllgifts and rcbolarship contributions giv," in memory oftbe following individuals from June /6.200/ tbrougb S.ptember / /,200/:

Sparks Regional Medical Cemer Board ofTrustees.

Mr. Warner was elder and trustee of FirstPresbyterian Church in Fort Smith, amember of SLJames United MethodistChurch and associate member of the PalmCiry, Florida Presbyrerian Church. He issurvived by his wife of 18 years, Barbara;five children; three stepchildren; a siner andorhcr relatives and friends.

The members

of the

Arkansas Bar Association

humbly recognize the

thousands

of people

who lost their lives

in attacks on the

World Trade Center

and the Pentagon

on September 11, 2001.

IN MEMORY OF ARTHUR BENNETTJudge William R. Wilson, Jr.

I MEMORY OF CA11iERINE HICKEY

Judge William R. Wilson, Jr.

IN MEMORY OF JOHNNIE HOLCOMB

Jack M. Wilhelm

IN MEMORY OF MRS. FRANCES

MENDELSON

Mrs. Helen Eichenbaum

IN MEMORY OF LEONARD S=rrRichard Hatfield

IN MEMORY OF JAMES B. SHARP

Bill & Kay AllenRichard HatfieldFrank MorledgePerroni Law FirmJim & Bonnie ShaverJudge William R. Wilson, Jr. andCathiCompron

IN M£MORY OF TOM SPARKS

W. Chriscopher Barrier

IN MEMORY OF MARy HOLT TRUEMPER,

DESIGNATED TO THE JUSTICE J. FRANK

HOLT SCHOLARSHIP FUND

LuciJe BarnenCarrie & Tyndall DickinsonMr. & Mrs. Edward ErxlebenAnnie & Justice John FoglemanBarbara & Pete HooverGeorge W KirtleyMrs. John E. Miller, Jr.Mrs. Ben A. RandBillie & Skip RutherfordWalls & MargatCr TrimbleBarbara Walker-HareRobert M. WilsonPamela C. WoodMr. & Mrs. William J. Jernigan, Jr.Mr. & Mrs. Michael KaufmanVirginia D. MitchellRameYI Krug, FaeeH & LensingJudy & Randy WilbournMary Ruth Brown

Mr. & Mrs. Fred Brown, Jr.Fred K. Darragh, Jr.Mr. & Mrs. Joseph A. LipeWanda McConnellc.F. & Karhryn PlunkettYvonne WardPatricia TownsendLeon & Roxanne Caderr

Ginger Hoi,Mrs. Hoy Plunkett LuppenDavid & Karen SamuelHilda ThomasBarbara & John BreenL. Cotton Thomas & CompanyJohn, Kathy, Matt & Kelly RansomMargaret HarchenAI & Eli7..beth R. Robertson & FamilyDiane SycloriakDavid & Lynn CoatesDr. & Mrs. Ernest HoltEdwina IacovelliJudith BoazLa Donna ClevelandMary A. BrownDeede PhelpsPatricia ShifflettMargaret, Jane & Jack HoltBerry & Steve MarthewsRay & Jan SwetenburgKarhy & Perry Johnston

IN MEMORY OF C. RANDOLPH WARNER,

JR.'

ancy BaileyMr. & Mrs. Winslow DrummondJusrice John A. Fogleman

The Arkansas Bar Foundationadminincrs two endowed scholarshipsentitled the C. R. Warner Scholarship andthe H.P. Scholarship should donors wish rodesignate [heir memorials for Mf. \Varnerto one of these scholarship funds.

III. nNI. I/FaIl iDOl ne tlr~lIl1l LIWW Ii

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PAGE

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56

39

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Inside Back Cover

18

30

11

27

Back Cover

30

20

56

56

Inside Froot Cover

ABA Retiremenl

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PUBLIC NOTICE

The currem (erm of me office of

United States Magistrate Judge John F.Forster, Jt., is due ro expire on March

13. 2002. The United States Disrrict

ourr is required by law ro establish a

panel of cl[Izens co consider the

reappointment of rhe magistrate judge

(0 a new eight-year term.

The duties of the magistrate judgeposition include the following: (I)

conduce of Illost preliminary

proceedings in criminal cases; (2) trial

and disposition of misdemeanor cases;

(3) conduct of various pretrial marrers

and evidemiary proceedings on

delegation from rhe judges of the

disrricr coun; and (4) trial and

disposition of civil cases upon consem

of the litigams.

Comments from members of the Bar

and the public are invited as to whether

rhe incumbent magistrate judge should

be recommended by the panel for

reappointmenr by the Court and should

be direoed to: Magistrate Advisory

ommirree, do United States District

Court Clerk's Office, 600 West Capitol

Avenue, Suite 328. Little Rock. AR

72201-3325

Comments must be received no later

than October 12. 200 I.

Warch for other news, events, andopporrunities for Young Lnwy~rs in theYoung Lawym &etion Nnusl"ur. edited byMichelle Cauley. If you have news ofinterest co your fellow Young LaWY~rJ.

contact Michelle about space in the nextedition.

Also, watch your e-mail for theopporruniry (0 be involved in a }'oung

Lowyar liscscrve through the BarAssoc3rjon's expanded and revised webpage. Soon we will have [he ability rocontact aJl Young Lnywas bye-mail withimportant news and announcements.

"A lawyer is a representative of clients,an officer of the legal system and a publiccitiun having spuia/ r~spomibilitiNfor tluqualilY ofjustice."3 While mOSt any younglawyer can comply with [he first two

requirements. members of [he YoungLawJ(TS Stction are active everyday infulfilling (he third. Come join us.•

For more information, or file consultation, caJl Susan Harding, RN, M.Ed., CRRN,

CCM. or Linda Davis. RN. CRRN. CCM at:

SYSTEMEDIC CORPORATIONuttle Rock, AR

501-227-5553 or 800-822-2680

I Arkansas Bar Association Young LawyersSection Bylaws at Article I, Section 2.

2 Id. at Article 11, Section 1.3 Model Rules of Professional Conduct

Preamble.

www.arkbar.comLegal Info Unks • Arkansas Veterans

Handbook • Disaster Legal Assistance •High School Mock Trial Program •

Senior Citizens Handbook/CareGiversGuide

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