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VOLUME 32, NUMBER 4

PUBLISHERArkansas Bar Association

Phone: (501) 375-4606Fax: (501) 375-4901

Homepage: www.arkbar.comE-Mail ARKBAR@intellinet.com on en s

In Every IssuePRESIDENT'S REPORT, by Jack McNulty

A LITTLE GOOD NEWS, by Shannon Eversole

EXECUTIVE DIRECfOR'S REPORT, by 0011 HollingslVonh

LAW OFFICE TECHNOLOGY, by Lynn Faster

LAW, LITERATURE & LAUGHTER, by Judge Vic Fleming

CLE & ARKANSAS BAR ASSOCIATION CALENDAR

YOUNG LAWYERS SECfION REPORT, by SCOII Margan

COMMITTEE & SECfION NEWS

LAWYER DISCIPLINARY ACfIONS

IN MEMORIAM

CLASSIFIEO ADVERTISING/INOEX TO ADVERTISERS

ASSOCIATE EDITORSara lJJlldis

EDITORJAL BOARDGerard F. Glynn, Chair

Wiley A. BrantonThomas M. Carpenter

Stacey A. DeWittMorton GitelmanJames c. Graves

Martha L. LondaginThomas H. McGowan

AI SchayJacqueline S. Wright

OFFICERSPresident

Jack A. McNullyPresident-Elect

Robert M. Cearley. Jr.Immediate Past President

Harry Truman MooreSecretary -Treasurer

Daniel R. Cartel'Executive Council Chair

Jack DavisYoung Lawyers' Section Chair

Scotl MorganExecuti ve DirectorDon Hollingsworth

Assistant Executive DirectorJudith Gray

EXECUTIVE COUNCilJ. Ray Baxter

William M. BridgforthDaniel R. Carter

Robert M. Cearley, Jr.Thomas A. DailyJohn A.~Davis, III

Thomas F. Donaldson, Jr.Lynn M. Aynn

Dave Wisdom HarrodMichael E. Im'inLouis B. Jones. Jr.

Thomas D. LedbetterJack A. Mo'Julty

Michael W. MitchellHarry Truman Moore

R. Scott MorganBrian H. RatcliffStanley D. RaulsSteven T. ShultsJames D. SprottLynn Williams

17lfl Arkanslis Lnwyer (USPS 546-040) is publishedquarterly by the Arkansas Bar Association.Periodicals postage paid at Utile Rock, Arkansas.POSTMASTER: send address changes to TheArkllllsas Lnwyer, 400 West Markham, Little Rock,Arkansas 72201. Subscription price to non-mem­bers of the Arkansas Bar Association $25.00 peryear and to members $10.00 per year included inannual dues. Any opinion expresSed herein is thatof the author, and not necessarily that of theArkansas Bar Association or TIle Arkmlsas Lawyer.Contributions to TIle Arkansas Lnwyer are wel­come and should be sent in two copies to EDITOR.TIlt Arkansas Lawyer, 400 West Markham. LittleRock, Arkansas mOl. All inquiries regardingadvertising should be senllo TIle Arkansas Lnuyerat the above address. Copyright 1997, ArkansasBar Association. All rights resef'\'ed.

On the Cover: "Woman withNurturing Hearts, •Jose Ortega,Inc.

,

A Watershed Year for Bankers:Arkansas' 1997 Banking Legislationby W. Christopher Barrier alld Johll S. Selig

Before Central High...Brewer v. Hoxie School Districlby Mort Gitelmall alld Bill Pellix

VOCALS 1982-1997:Joint Venture for Justiceby Jean Carter and Mary Ht!l1ry

Public Opinion Poll: How lhe PublicViews Female and Black Attorneysby Jllstice Robe,., L. BrowlI alld Sheila Campbell

Remarks of Judge Andree Layton Roafby Jlldge Alldree Laytall Roa!

Time For Changeby Dialle Schratz Holitik

Shielding Volunteers from TorI Liabilityby Frances Fendler Rosenzweig

[aLTA: What is it? What Does it Have To DoWilh My Clients' Money?by Lisa Meltall

II

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AT&T

President's Report

American Bar Association House of Delegatesby Jack McNulty

As President of the Arkansas BarAssociation, I have the pleasure and

responsibility of making hundreds ofappointments of our members toAssociation committees and taskforces. In the past, on occasion, theAssociation's President appoints amember to a State government com­mittee or commission. I was recenLlyfaced with two unexpected appoint­ments.

Traditionally, members of theArkansas Bar Association have electedone of OUf members lO be OUf delegatein the House of Delegates of theAmerican Bar Association. This dele­gate position is for a two year ternl. tothe Spring of 1996, Professor RobertWright was elected 10 a two year term

to expire after the ABA meeting inAugust 1998.

At the Annual Meeting of theAmerican Bar Association in August1997, Professor Wright concluded histerm as Chair of the American BarAssociation's Seclion on General

Practice, Solo and Small FirmPractitioners, and was elected by thatSection as its delegate to the House ofDelegates of the Association.Consequently, Professor Wrightresigned his position as delegate of theArkansas Bar Association, resulting ina vacancy in that position. Under ourConstitution this vacancy is to be filledby appointment of the President of theArkansas Bar Association, with theapproval of the Arkansas House ofDelegates, to serve the remainder of theunexpired tenn which ends in August

1998.At the same time this vacancy

occurred, our Association was certifiedby the American Bar Association for asecond delegate position, due to anincrease in the number of Licensedattorneys in Arkansas. Thus, ourAssociation had a second delegateposition to be filled by appointment of

the President, with the approval of theHouse of Delegates, to serve theremainder of the unexpired termwhich, in this case ends in August1999.

Faced with the appointment of twoof our members to be delegates to theHouse of Delegates of the AmericanBar Association, I considered the qual­ifications of a number of our leaderswho were interested in assuming thisresponsibility. As far as I could deter­mine, there had never been a situationwhen the President of the Arkansas BarAssociation was called upon to appointone, much less two, delegates andobviously we have many qualifiedmembers who would do a fine job.

After much' consideration, I electedto appoint Harry Truman Moore to fillthe unexpired term of the delegateposition which had been occupied byProfessor Wright, which will expire inAugust 1998, and CarolynWitherspoon to fill the unexpired tennof the new delegate position, whichwill expire in August 1999. BothCarolyn and H.T. are past presidents ofour Association. In fact, they are our1110st immediate past presidents. Theyhave both been outstanding leaders ofour Association, and they have bothalso been active in the American BarAssociation. On October 18th ourHouse of Delegates approved theseappointments.

Another member of our Associationis Bill Allen, who is also a delegate tothe House of Delegates of theAmerican Bar Association. This dele­gate position is one which is elected bythe members of the American BarAssociation who practice in Arkansas.

There is another Arkansan in thismix. Phil Anderson is the currentPresident-Elect of the American BarAssociation, and will become ABAPresident at the end of the ABA Houseof Delegates meeting in August 1998.

Thus thereare now fivemembers ofour Asso-ciation whoserve in prom­inent roles inthe House ofDelegates of the American BarAssociation. We are, indeed, well rep­resented, both in numbers and person­ages.Advisory Ethics Opinions

One of the benefits of membershipof our Association which is oflen over­looked is the Advisory EthicsOpinions. Under appropriate circum­stances, advisory ethics opinions areissued by the Association'sProfessional Ethics and GrievancesCommittee, which is chaired byProfessor Howard Brill.

Advisory ethics opinions will onlybe issued in response to a wriuenrequest from a licensed allomey who isa member of this Association. At theAugust meeting of our ExecutiveCouncil, the issuance of these opinionswas restricted to members of theArkansas Bar Association. This actionwas taken in response to the argumentthai it is unfair for a nonmember to

enjoy such a benefit, while not payingmembership dues, particularly sincethese dues support a variety of publicservices for the attorneys and citizensof our state.

Requests for advisory opinions mustbe in writing and must be submitted to

the Association's Executive Director,along with a check for $50.00 to coverbasic expenses. There are 4 require­ments as wel1: I )requests must relateto the prospective conduct only; 2)they must contain a complete statementof all facts upon which the opinion isrequested as well as a concise question

See "Presidelllt's Report"page 4/

A Little Good News

1997 River Valley Volunteer LawFirm of the Yearby Shalllloll Eversole

VAP is a joint venture of WesternArkansas Legal Serviees and theSebastian and Crawford County BarAssociations. VAP was established in1989 to provide pro bono legal assis-

tance in civil cases to indigentpersons living in Sebastian

____ and Crawford Counties.The project currently has

126 volunteer anomeys fromthe two county area. andbegan as the 12th JudicialDistrict Volunteer AttorneyProject. serving Sebastianand Crawford Counties.Because Crawford Countyhas now become the 21 stJudicial District, the VAPAdvisory Commillee voted tochange the project name toRiver Valley VolunteerAttorney Project in order to

recognize the panicipation ofboth judicial districts. VAP has beencoordinated by Shannon Eversole since1992.•:.

first firm to be recognized by theVolunteer Anomey Project. In the past,the award has been presented to indi­vidual attorneys. However, this year,the VAP Advisory Comminee selected

the Daily & Woods firm 10 be the recip­ient of the award because of the signif­icant amount of pro bono work provid­ed by firm members.

Lift to Right: Ray Fulmer, VAP Committee Chllinllflll, Rob"!Bishop, aud Mark Moll, President, SttbflS/;mr County BarAssociation.

Mission: Volunteer Allorney Projectis a joi", \'ellfure of Wesrern ArkansasLegal Services Gnd 'lte Sebastian andCr{1H1ord County Bar Associariolls.VA? was established ill /989 (O providepro bono legal assiswnce in ........----­ci\'i1 cases 10 indigem personsliving lIJ Sebastian andCrawford Coumies.

Member al10rneys handle amaximum of two (2) pro bonocases per year, or contribute$/50 annually. which is "sed 10assist YAP in the represenw­1ion of poor persons inSebastion Cral\1ord ColtJ11ies.

Mr. Robert Bishop acceptsthe "1997 River ValleyVolunteer Law Firm of theYear" award on behalf of hislaw firm, Daily & Woods ofFort Smith. The award waspresented by Ray Fulmer.Chairman of the Volunteer AnomeyProject. at the first meeting of theSebastian County Bar Association.

The Daily & Woods Law Fim, is the

MARIE SCHOENFELDT, Paralegal and Admin­istrative Assistant with the Firm of Evans, Farrar,ReiSt Rowe & Nicolosi of Hot Springs, has receivedthe Award of Excellence from the NationalAssociation of Legal Secretaries for 1997. Mrs.Schoenfeld was interv iewed and selected to receivethis honor at the Annual Forum of the Associationin Boston on July 27, 1997. This competition isbased on years of experience in the legal profession,association achievements. professional activitiesand legal education.":·

BIRTHIlAY GREETINGS GO TO:

Relired Chancellor RoyceWeisenberger, who served in Pulaski,Jefferson, Garland and Union countiesfor 20 years, will be celebrating his

90th birthday December 13, 1997. Thecelebration will take place from noonto 3:00 p.m. at the Western SizzlinRestauranr in Hope. Arkansas.•:..

LETTERS WELCOMEThe Arkansas, Lawyer welcomes read­er comments - letters to the editor andany "good news." Leners should beno long~r than 250 words.Anonymous lellers will not be pub­lished. The editors reserve the right toedit leners for style, length and conti­nuity. Advenising rates and infonna­tion are available upon request.Leners, inquiries and advertising maybe sent to:

'. Adrienne Brietzke, EditorThe Arkansas Lawyer400 Wesl Markham

Linle Rock, AR 7220 I501/375-4606 or 800/609-5668

or fax correspondence to501-375-4901

T~ \rtmlll.l~ltr rlllilli

Executive Director's Report

Membership Dues Structureby DOli Hollingsworth

35.00

35.00

10.00

$150.00

90.00

35.00

7500

35.00

Current Annual Dues

Admitted to practice more

than 10 years

Admitted to practice 4 to 10 years

Admitted to practice 3 years or less

Appellate or trial judge

Member residing outside Arkansas

Member on active duty

in U.S. Military

Retired Status

Law Student Section

olTImcnding afair system ofdues for ourmembers.Further, TaskForce mem­bers seem toFavor a newsystem whichwiLl be in­come-neutraloverall. In other words, there wiLl not beany intentional increase in the totalamount of dues income collected undera new structure. (There is also the pos­sibility that a new structure coulddecrease dues-income initially, but withthe expectation thaL the structure willmean a larger membership for theAssociation in the future.)

Approximately 72% of licensedattorneys residing in Arkansas belongto our Association. While this is a goodpercentage for a voluntary st.ate barassociation, we can and need to do bet­ter. It is important to the future health ofthe legal profession in Arkansas that allattorneys in the state participate in pro­fessional and public service activities,and by ext.ension, participate in ourAssociation. But to significantlyincrease the percentage of attorneyswho belong to our Association, andenjoy the many benefits it offers, wemust first be able to offer a fair duesrequirement and continue to offer ever­better services to our members.•:.

the one implemented by the TennesseeBar Association two years ago. It's cen­tral feature is a base dues rate, whichabout 70% of their members pay. Theremaining 30% of members pay a less­er rate based upon their law-relat.edincome. There are 4 to 5 income rangeswith different dues rates, and thosemembers who selecL this method ofdetermining their dues "check off' theircorresponding income range. Privacy isassured with only the MembershipDirector and Executive Director havingaccess to an individual member'scheck-off.

Tennessee has reported that it ispleased with this new system, and theyview it as fairer and less complicated.They still offer special dues rates forsuch categories as out-oF-state membersand retired members.

Our Task Force has preliminarilyvoted to retain the Association's freedues for first year attorneys along withsome version of a retired member spe­cial dues. Arkansas is somewhatunique in that we have both a senior andretired category. It appears likely theTask Force wiLl recommend that theAssociation maintain a special duesrate for out-of-state members, butincrease the current rate of $35.

Our current structure has 9 differentdues rales. We do not have a specialdues rate for government attorneys,which is one of severaJ groups wherewe have below average participation. Ifour Association does not adopt a duesstructure simi.lar to Tennessee's, con­sideration may be given to more specialdues categories.

Please note lhat the shortcomings ofour dues structure have been recog­nized for a number of years. Some ofthe roadblocks to refornling it haveincluded the difficulty of reconcilingthe variety of special circumstances andthe difficulty of maximizing fairnessamong all members. OF course, there isalso lhe inherent problem of projectingthe economic impact of a new structureon the Association's annual income.

The Task Force is committed to rec-

The structure of our Association'smembership dues has evolved overmany years. Because of the structure'slack of Fairness to some categories ofattorneys as well as the desire to avoidnumerous special dues categories, theHouse of Delegate established a TaskForce to study the dues structure.

The Task Force may make its recom­mendations to the Executive Council atthe December 6 meeting in Pine Bluff.The House of Delegates will have toapprove any changes since they wouldamend the Association by-laws. TheHouse will next meet on January 24 inconjunction with the mid-winter meet­ing in Memphis.

The Task Force is composed of 18Association members who are repre­sentative of the legal profession inArkansas, and reflect its diversity.They have examined the dues structuresof other state bar associations and haveidentified the strengths and weaknessesof our structure. The following aresome examples of the issues beingstudied:

I. The cornerstone of the dues struc­ture is the number of years of practice.Is this still a relevant or fair basis fordetermination of dues?

2. Are the special dues rates andexemptions still justified?

3. Does the dues structure signifi­canLly impact on membership participa­tion by certain categories of attorneys(e.g. government attorneys).

4. How should the Associationaddress the problem of the increasingnumbers of senior and retired memberswho pay little or no dues and theincreasing trend of less participation byyounger atlomeys?

5. Do the dues jumps of the currentstructure (from $35 to $90 at 4th year,to $150 at 10th year) negatively affectmember retention because of the size ofthe jump, or the perception engen­dered? Some attorneys have com­plained that their dues increased whiletheir income was the same or lower.

As of mid-OclOber, the Task Force isconsidering a dues structure similar to

fall 1l9i The Mlmas 1,"'Jer ;

•• • •••••

UCED COST LEGI

NTS

The cornerstone of an attorney's professional­

ism is up-to-date information. The Arkansas

Bar Association provides the most comprehen­

sive statewide CLE program, and members

pay reduced tuition! Over 20 CLE Seminars are

produced annually.

Annual Meeting, Hot Springs - June 1998. For

CLE, for spouses, for kids, for friends.

Best of CLE, Little Rock - June 1998.

TIp Irlma! I,alllrr l'a1l199i

You are well-represented on legislative issues

affecting the profession and legal system. The

Association's full time lobbyist represents its

members' interests in the Legislature.

S4-=Call Rebsamen at 501-664-8791 for professionalliability (5% discount for members) and mem­

ber group rates for medical, accident, disabilityand term life.

IN THE ARKANSAS BAR ASSOCIATION

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• The Arkansas Lawyer• The NewsBulletin• Legislative Summary From the Hill• The Arkansas Law Review• The UALR Law JournalBrochures on Law-Related Topics are available

for members to share with clients or civic

groups.

AVIS - for discounts call 800-331-1212 and give

them this number, B-314500.

UPS gives members discounts and quickresponse time. Call 800-325-7000.

Call 501-661-5853 or 680-5029 for discounts on

services and equipment.

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MEMBERS RECEIVE A

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Ten practice handbooks on CD-ROM from

LOIS and in print from this Association. The

Handling Appeals in Arkansas was just pub­

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Form Book will be available later in 1997. Call

the Association at 501-375-4606 for print ver­

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ROM. Statutes of Limitations Handbook (June

1997) - Free to Members Only

The MBNA Platinum Plus MasterCard

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Call 800-826-8901.

L SYSTEM

The Arkansas Bar Association has historically

worked to secure adequate funding of the court

system, to revise outdated laws, and to provide

needed legal information to the public.

Association members do this through the leg­

islative program, Sections/Committees, Mock

Trial Program, Juveniles for Justice, Young

Lawyers Section's projects, and special studies.

rlll199i TIe "rholl! Lall}er

Law Office Technology

www.ark.org:The Information Network of Arkansasby Lynn Fosler

records, corporal ion records andU.CC filing records on the Internet.Some of this information is already inelectronic fann and will be available inthe next few momhs. Information thatis not electronic must be converted,which takes time, but rNA is workingwith agencies 10 gel this process under­way.

INA is "fee-funded" and works 10

provide heavily used, "value-added"infom131ion for a nominal charge, to besel by the Board. However, much of ilsinformation will be available for free.Agencies will retain ownership andcontrol of their data, and nOlhing willbe made available that would violatethe Arkansas Freedom of InfonnationAct.

Some of the legal information thatINA would like to make available 10 Ihepublic includes recent cases, theArkansas code, and agency rules andregulations. INA is not a competitorwith vendors such as LOIS, LEXIS orWESTLAW; it does not provide power­ful, sophisticated search engines. But itdoes plan to make available easilyaccessible, free or low-cost informa­tion. In slales with similar agencies,I A's counterparts are becominginvolved in the move toward electronicfiling of court documents.

I recommend you visit the site, atwww.ark.org. Right now there areIUlks 10 Arkansas stale agencies (anolh­er lask of INA is to help agenciesdevelop their Intemel sites). And keepan eye on www.ark.org. It wiU growinto an important infonnation providerduring the nexi few mOl;ths. If youhave suggestions or questions, e-mailthem 10 info@ark.org, or call 501-324­8900.•:.Lynn Fosler is Ihe Associate Dean forAcademic Affairs alld Professor ofUIWat Ihe UALR School of Law.

TM

users of state information: countyclerks, libraries, anomeys, banks, andaccountams. I was the original repre­sentative of the Arkansas BarAssociation on the rNA, but ProfessorJohn Watkins of the UAF School ofLaw lOok my place in early 1997.Network Manager for INA is JosephNemelka, who has a strong computerbackground and is also an anomey.

The INA appeared on the Intemet onAugust 22. II is currently working wilhslate agencies such as the Departmentof Finance and Administration and theSecretary of State to provide heavilyused information such as drivers license

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Whal is the Information Network ofArkansas? It is a public instrumentali­Iy established by the 1995 GeneralAssembly, wilh the charge of providingand improving electronic public accessto public state information. Theenabling act was modeled after Ihat ofKansas, whose information networkhas been copied by several other Slates,including Nebraska, Indiana, Georgiaand Indiana.

The Informal ion Network ofArkansas (INA) board is chaired bySecretary of tate Sharon Priest.Members are drawn fTom state agenciesand groups thai typically are. heavy

S fbI Ir~mal La\\jrr I'all I!9i

Law, Literature & Laughter

"Dear Judge Fleming"Kids Comment on Campus Court

Copyrighr /997 By Judge Vic Fleming

"Dear Judge Fleming, Hello, howare you? I am fine. I wanted to write totell you what I learned from your pro­gram," the sixth grader wrote. "Ilearned that even if you drink just a lit­tle bit (and drive), you can still hurtsomeone."

The letter was one of over 100 that Ireceived in the wake of implementing acreative and dynamic program earlierthis year. In "Campus COLIn I CriticalChoices," I literally take the courtroominto schools for real cases. The casesare then followed by interactive lecture,using video vignettes showing conse­quences of unwise choices.

"Even a smart kid can make a fool­ish choice." That's the motto of Troy,Michigan, District Judge Michael A.Martone, who founded the program,christening it "Courts in the School /Critical Life Choices." (My court staffshortened the title to what they believedwas a "catchier" title.) Judge Martonewas featured on the NBC "Today"show in September 1996.

By and large the sixth through tenthgraders to whom this program has beenpresented in Little Rock are bright,honest and delightful. But they readilyadmit that they engage in some activi­ties for no particular reason and "with­oul thinking," leI alone talking to oneanother about potential negative conse­quences. The main purpose of the pro­gram is to get kids to think before theyact and sometime talking causes think­ing (you may quote me on that).

"I learned that before you do some­thing wrong, think it over (and) that ifsomeone passes out on the floorbecause he or she had too many todrink, you take them to the emergencyroom to get checked out by a doctor,"another sixth grader wrote.

Here is how the program works. Iselect youthful looking defendants inmy court who have already been foundguilty of an offense that the kids canidentify with or about which they needinformation. The kids all identify withOWl because they hear about it all thetime. They all need infomlation about

suspended driver's license and no­insurance charges because these itemsare seldom discussed.

The chosen defendants are offeredthe option of being sentenced in frontof a school crowd. They are told theywill not be dealt with more harshly inthat forum. Indeed, they are told thatthey will be given credit for somedegree of community service for theirwillingness to participate. They reportto the school library or auditorium forthe sent.encing phase of their case.

Court is opened the same as it isdowntown. The audience is told thatthey will not go to the principal's officeif they act out, but rather will becharged with contempt and tried later inthe week downtown. And, if foundguilty, will have their next couple ofweekends planned by my probationstaff.

The defendants then make theirstatements for leniency. They have beenencouraged to tell what they havelearned from their experience in "t.hesystem." The defendants are then sen­tenced, and at least one of them is takento jail from the school. At that point youcan usually hear a pin drop on a carpet­ed !loor.

A ninth grader's impression of thiswas expressed like this: uThe reality ofseeing someone handcuffed and sent tojail is about as real as it comes andfrightening for a young person to thinkabout. Hopefully, the fear will changesome people's minds." Another wrote,"It gives you an 'in your face' check onhow life really is."

Campus Court is thell recessed andthe Critical Choices lecture begins. It isa 30-minute presentation designed toget the kids to teach themselves whatthey ought to be talking about beforeembarking on a certain course of con­ducl. At strategic points in the programI tum on the TV and show video clips.

One is a news story about anArkansas high school girl being thrownfrom the truck in which she was a pas­senger at 3 a.m., her boyfriend havingfallen asleep at the wheel while driving

home from the prom. Another capsulesa Michigan case in which an intoxicat­ed man drove the wrong wayan anInterstate, killing three young childrenand their mother and then being con­victed of manslaughter and sentencedto 22 years in jail.

Other vignettes also show conse·quences of "critical choices": a 22 year­old speaking from a Delaware prisoncell, a 14 year-old missing his sister, an18 year-old maimed and crippled by adrunk drivcr. (As this column goes toprint, I am updating our video library toinclude the North Carolina case wherestudents were convicted of manslaugh­ter after pulling up stop signs alld theLSU student who recently died of aleo­hoi poisoning.)

By the end of the lecture, the kidsare tclling me what risk analysis is andwhal topics and concerns they shouldbe discussing among themselves beforeengaging in many of the activities thattheir friends are already engaging in.One ninth grade boy wrote, "I feel youpersonally reached me because I didnot know the consequences for OWl·not that I drink! But now I won't eventhink about it. Just looking at those peo­ple gave me a feeling that 1never wantto be in court for anything, so,

"Nay ay. no no,You won't see me, Joe!"And a ninth grade girl wrote.

"Though some kids in a year or twomay make the decision of drinking anddriving, hopefully one person's mindmay change because of your presenta­tion."

I am available to any judge in thisstate to come demonstrate the ease withwhich this program can be established.It costs practically nothing and itencroaches on the judge's time for justa few hours per year. I choose to thinkit is better for the kids to be talkingabout negative consequences on thefront end, as this might lead to lessweeping about them on the tail end.

And who knows? Someone's mindmight be changed, or someone's lifesaved as a result of that talking.•:.

1',1I191i nr ,\rt~lslll,aw!rr

WHEN YOU THINK OF THE GREATARKANSAS LAWYERSOF THE PAST 100 YEARS...

•:. UM. Rose, the first President of the Arkansas BarAssociation .:. General John Patrick Clayborn, the greatcivil war commander .:. Edward L. Wright, the AmericanBar President who was responsible for revamping theentire code of judicial responsibility to make it applica­ble to modern practice and the rights of the client .:. JoeBarrett and his work on the VCC .:. Henry Woods, andcomparative fault .:. Harry Meeks, author of theArkansas Probate Code .:. Ruby Hurley, a lifelong advo­cate for her clients despite a handicap .:. Robert A. Leflar,the great legal educator .:. Wiley Branton, Sr. and his civilrights contributions, these are some of the names wethink of...

WHAT LAWYERS COME TO YOUR MIND?HELP US PLAN.

We need to know who or what you know.Jot down your stories or names and send them to us forpossible inclusion in our 1998 Centennial Celebration.

r------------------------------------------------,IYour suggestions:

Please send your suggestions: names to be recognized, stories, anecdotes, and any interesting facts frOIll the last 100 years toAdrienne Brietzke, The Arkansas Lawyer, 400 West Markham, Little Rock, AR 72201

or FAX 501-375-4901 for possible inclusion in our centennial celebration_L ~

AWATERSHED YEARFOR BANKERS:Arkansas' 1997 Banking LegislationBy W. Christopher Barrier and John S. Selig

This is the second of two "ArkansasLawyer" articles oLltlining the majorchanges in Arkansas banking laws adopt­ed by the 1997 General Assembly. Theftrstarticle, which appeared ill {he Summer1997 isslle, dealt with the ArkansasBanking Code of 1997 (Act 89 of 1997).

Clearly, the Arkansas Banking Code of1997 (the Code), the subject of our earli­er article, is a very big deal for Arkansasbankers. However, the practical impact ofcompanion legislalion--on branching,trust institutions and sales of insurance­may be jusl as profound for lheir businessand their customers.

BRANCHING OUTPrior lO the end of the 1997 regular ses­

sion, the Code was amended by ACl 408,lhe Arkansas Interstate Banking andBranching Act ("lhe Branching Act"),which is Arkansas response to the federalinterstate branching legislation referred togenerally as the Riegle-Neal Act, whichpermits bank branching and mergersacross state lines.

The Riegle-Neal Act gave every state achoice of four options regarding interstatebranching:

I. Opt-Out - Opt out of the Riegle-NealACl altogelher and prohibil interstatebranching into and out of the state;

2. Merger - Allow interstate branchingby mergers of banks located in differentSlates;

3. De Novo - Allow interslate branch­ing lhrough newly-formed branches; or

4. Acquisition - Allow interstatebranching by acquisilion of existingbranches.

The Branching Act penn its interstat.ebranching only by merger, the secondoption. It became effeclive as of June I,1997. Applications filed before that effec­tive date are subject to prior law governing

branching, even if approved after thateffective date.

Currenlly, a slate bank may (I) engagein an interstate merger transaction inwhich it will be the resulting bankafler application and approval by theBanking Board, wilh the concurrenceof the Bank Commissioner, and (ii)thereafter, continue to operate branchesof the merged banks in the other states.

An out-of-slate bank may (i) engage inan interstate merger transaction with astate bank in which the oUl-of-state bank isthe resulting bank and (ii) lhereafler, oper­ate branches in Arkansas at the same loca­tions which the state bank could haveoperated branches had the merger notoccurred.

A Slale bank may nOl establish a denovo interstate branch or acquire an inter­state branch in another state, other thanthrough an interstate merger transactioll.The same section of the Branching Actalso prohibits an out-of-state bank fromestablishing a de "ovo interstate branch oracquiring an interstate branch in Arkansas,other than through an int.erstat.e mergertransaction.

OUl-of-state banks and Arkansas bankswhich are proposing to engage in inter­state merger transactions must give certainnotices, file copies of federal applicationsand meet ot.her applicable requirements ofthe Code.

OUl-of-stale slale-chartered banks withbranches in Arkansas may offer any ser­vice which a Slale bank could offer. Slalebanks with branches in anot.her state mayoffer the same services through lhosebranches which banks may offer in theother state, subjecl lO the aUlhority of theCommissioner to limit the exercise of anypower which is not granled to a state bankby the Code. After an out-of-stale bankhas consummated an interstate mergertransaction with an Arkansas bank, the

au t­

of-stalebank is authorized (0 establish newbranches or limited purpose offices at anylocation where the Arkansas bank couldhave est.ablished branches or limited pur­pose offices had the merger not occurred.

tn addition, the Branching Act modifiesthe rules with reference to mergers of statebanks into national banks, and vice versa,and savings and loans into banks 10 beconsistent with the brave new bankingworld broughl into being by the Riegle­Neal Act.

AFTER THE MERGERAfter the consummation of a merger

pursuant 10 an application filed under theCode, whether interstate or intrastate, thesurvivor bank may establish branches atany location where any bank which wasinvolved in the merger could have estab­lished branches had the merger notoccurred, with the same branching rightsafter a merger as the Riegle-Neal Actgrants to the resulting bank after an int.er­state merger transaction. Core bankingactivities (receiving deposits, payingchecks or lending money) must take placeal the main office or full service branches.

see "Baflks"page 12

fall199i ne .lrkm311,31l)er II

"Banks"on-core banking activities may be con­

ducted at any location within the state ofArkansas at a limited purpose office.

A state bank may open a limited pur­pose office. after giving the Commissionernotice of the location. ownership. activi·ties to be conducted. cost and other infor·mation. if any. requested by theCommissioner. The separation of theactivities into core banking and non-corebanking and the geographic expansion ofthe non·core banking locations is intendedto provide state banks wi(h the sameauthority which the Comptroller of theCurrency has granted 10 national banksthrough interpretive rulings.

Any state bank may now locateConsumer Bank CommunicationsTerminals ("CB Ts") at any locationwithin the state of Arkansas as well as anylocation in one or more other states if per·milled by the law of the other states. Thisrevision establishes a regulatory structure.

to the extent possible. for CBCTs operatedby state banks and CBCTs in Arkansasoperated by out-of-state state-chaneredbanks consistent with (he additionalauthority granted to national banks underthe Economic Growth and RegulalOryPaperwork Reduction Act of 1996 asenacted by Congress and signed by thePresident on September 30, 1996.

Banks chartered by other states(whether or not such bank has branches inArkansas or is otherwise doing business inArkansas) may also locate CBCTs withinthe state of Arkansas. upon giving therequired notice. Interconnected CBCTs.funds payment systems and computer sys­tems are no longer subject to geographiclimitations.

The Commissioner may examine.assess fees. and require repons from out­of-state banks with branches in Arkansas.and may share employees, infom13tioll,examinations and other duties with banksupervisors from other stat.es involving

state banks wit.h branches in anot.her stateand out-of-state banks with branches inArkansas. The Commissioner generallyhas enforcement authority over out-of­statc banks with branches in Arkansas. asto their Arkansas activities.

The Commissioner, with the approvalof the Board. is given authority to issueregulations to implement the provisions ofthe statutes.

An out·of-state bank which has previ­ously engaged in an interstare mergertransaction as a result of which it hasbranches in Arkansas must give a thiny(30) day notice prior to the consummationof any transaction involving a change incontrol of the bank or any bank holdingcompany controlling the bank.

Out-of-state banks which are the result­ing banks of an interstate merger transac·tion with an Arkansas bank must apply fora cenific3te of authority to do business in

see "Banks"page 13

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"Banks"the state of Arkansas. The out-of-statebank must also make and keep current cer­tain informational filings with theCommissioner.

The 1997 amendments to the Riegle­Neal Act make it clear that the Arkansasbranches of out-of-stale banks with statecharters only will be subject to Arkansaslaws, basically to the same extent as if theywere branches of national banks.

THE ARKANSAS TRUSTINSTITUTIONS ACT

The Code basically dealt only with trustactivities by banks or their subsidiaries,and deleted any reference to independenttrust companies. However, Act 940 of1997, passed late in the session, (theArkansas Trust Institutions Act) nowexpressly authorizes such entities and setsout a comprehensive regulatory frame­work for trust institutions. (There are infact two such trust companies acting inArkansas, and Act 940 directs them tobecome regular business corporations,banks or the new statutory trust company.)

Actually, there are two kinds of trustcompanies pennitted under the ArkansasTrust Institutions Act, private and publictrust companies. But private trust compa­nies are defined as those which do notengage in the trust business with the gen­eral public. To figure out who is not amember of that general public requiresthat you haul out your tables of consan­guinity-your greal aunt adine is prob­ably not included, but your fourth cousinRalph is-which is probably not worththe trouble for most practitioners, even ifprivate trust companies have the advantageof being largely unregulated private invest­ment vehicles.

Public trust companies, on the otherhand, have capital requirements, and gen­eral regulations similar to banks. Theyexercise powers as fiduciaries, powerswhich, prior to the effective date of theArkansas Trust Institutions Act, could beexercised only by state trust companies,state and national banks, federal and statesavings and loans associations with specif­ic trust authorization, subsidiary trustcompanies, and duly licensed out-of-statebanks and trust companies.

However, remember that these publictrust companies are not banks, becausethey cannot do both a general deposit busi­ness and make bank-type loans. They will

also avoid some regulations applicable tobanks, such as those federaJ statutes gov­erning bank holding companies and statelaw restrictions on branching.

They can make loans as investments. Apublic trust company may merge with astale bank or with another business entity,to the same extent an Arkansas businesscorporation can, subject to review andapproval by the Arkansas BankCommissioner.

Along with the traditional fiduciarieslisted previously, public trust companiesmay delegate their investment. manage­ment and administrative functions (provid­ed they select that delegate with reason­able care, make their scope of authorityclear, and periodically review their activi­ties). The delegate may in some instancesbe an affiliated entity.

Actually, Act 940 deals with more thanjust trust companies: after years of unsuc­cessful effons to adopt the prudentinvestor rule as part of the UnifonnProbate Code, the rule now is adopted infull in the Arkansas Trust Institutions Act.Act 940 applies, not only 10 trusts and trustrelationships created or entered into afterits effective date: it applies to decisions oractions made or taken by trustees of exist­ing trusts after its effective date.

BANK INSURANCE SALESHistorically, banking laws have given

banks some limited authority to sell insur­ance themselves on their premises, but theadditional restrictions in insurance licens­ing laws have made that authority difficultto exercise. Banks specifically have 1101

been able to obtain licenses to sell insur­ance (other than to sell credit life and sim­ilar coverage).

This tension between the bankingindustry and insurance agents has pro­duced protracted litigation, including twocases recently decided by thc UnitedStates Supreme Court. The Court's deci­sion in the VALle case holds that fixed andvariable annuity products are not insur­ance products, when sold by nationalbanks, and, hence, may be sold at any banklocation. The Barnell decision announcedthat state insurance laws (which wouldinclude Arkansas and those of manySlates) could not unduly restricI a nationalbank's ability 10 sell insurance in places ofless than 5,000 people.

In November 1996, the Comptroller ofthe Currency granted First Union National

Bank authority to sell insurance through·out its home state and nationwide frombranches in places of less than 5,000 peo­ple, subject 10 certain restrictions on thelocation of application processing, COIll­

mission payment and record keeping oper­ations. The Comptroller allowed salesactivities of bank agencies to take placeoutside the places of less than 5,000 peo­ple to the same extent that non-bank agen­cies may engage in sales activities outsidethe location listed on their license as theiroffice. The Comptroller also permittedmarketing of insurance by telephone andover the Internet.

Acts 900 and 1004 of 1997 clarify therange of possible insurance sales by banksin Arkansas. tn particular, a loan officercannot sell insurance while he or she ismaking a loan (except credit life) and can­not use the customer's non-public infor­mation as a starting point to size upprospects.

While neither state nor federal lawremoves the under-5,OOO restriction forsales activities, Act 1004 recognizes theBarnefl decision and the First UnionNational Bank grant and deletes therestrictions which would have required allthe activities related to the sales to takeplace in thaI size, or smaller, towns.

TURN AND FACE THE CHANGELike the Arkansas Banking Code of

1997, while sweeping, these changes arestill more evolutionary than revolutionary,and hardly represent the culmination of theprocess. There will be yet more changesin the dual banking system and sources ofregulation, as well as some form of relax­ation of the traditional Glass-Steagall Actseparation of commercial banking andinvestment banking, changes which willmake the law and practice of banking asource of continuing interest. .:.

CHRIS BARRIER and JOHN SELIG are mem­bers of rhe Little Rock*!Jased firm of Mirchell.Williams. Selig. Gares & Woodyard, PLLC.Barrier has sen'ed as chair ofrhe Arkallsas BarAssociarion s Fillancial Insriwrions LawSecrion and also irs predecessor. the BankingLaw Commilfee. Selig served Oil theGaven/or's Task Force to Revise ,he BankingLaws, chairing its Bank Powers Committee.Endnoles:I. NarionsBank of North Carolina. NA. v.Variable Af/Nuit)' Life If/s. Co., 5 J 3 U.S. 251.130 L. Ed. 2d 740 (1995).2. Bamen Bank of Marion Coumy I'. Nelsoll.517 U.S. _,134 L. Ed. 2d 237 (1996).

1',11 1997 nr ,lrkmas I,aw!rr Il

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BEFORE CENTRAL HIGH...BREWER V. HOXIE SCHOOL DISTRICT

by Mort Gitelman and Bill Penix

In the fall of 1997. the fortiethanniversary of the integration ofCentral High School in Little Rockcontinued to focus world anentionon that episode in Arkans<1S history.

A photograph of the "Little Rockinc" appeared on the cover of Newsweek

magazine and President Clinton attended aceremony marking the anniversary.Although the whole world recognizes theCentral High integration episode, few peo­ple know about the first case in Arkansaswhich dealt with school desegregation.That case, Brewer v. /-Ioxie School District,was one of the first federal cases in theperiod following the .S. Supreme Courthanding down the mandate in the case ofBrown v. Board of Education. The /-Ioxiecase was so unusual that the decision wasnoted in both the Yale and Harvard LawReviews, with the Eighth Circuit decisionfeatured in a leading casebook onConstitutional Law. What made the caseunusual was that the plaintiff was theschool board of Hoxie chool District andthe defendants were an array of segrega­tionist organizations, including the WhiteCitizens Council of Arkansas and WhiteAmerica. Inc., and a number of prominentsegregation activists including AmisGuthridge, "Justice Jim" Johnson, andCurt Copeland. The plaintiffs sued in fed­eral court for an injunction to prevent thedefendants from interfering with thepeaceful desegregation of the Hoxieschools.

Bill Penix of Jonesboro, along with hislate father and his late wife were the attor­neys in that case. Bill Penix, now retired.recalls the litigation: "The superintendentand the five board members of the HoxieSchool Districi were aware of the twodecisions of the Supreme Court of theUnited States in Browll v. Board ofEducatiou. rendered in May 1954 andMay 1955. The latter decision told the dis­tricts to proceed with desegregation withall deliberate spced.

"The Hoxie School Board concludedthat the time was at hand for such action at

"What was so

unusual in the Hoxie

case was that the plain­

tiff was the school board

of Hoxie School District

and the defendants were

an array of segregationist

organizations, including

the White Citizens

Council of Arkansas and

White America, Inc., and

a number of prominent

segregation activists

including Amis

Guthridge, 'Justice Jim'

Johnson, and Curt

Copeland."

Hoxie [there were about 1,000 white stu­dems and 25 black students in the Hoxieschools]. Consequently, classes weredesegregated June 7,1955. (In those daysthe schools in Hoxie began in early sum­mer so that a recess for fall harvest could

be observed.) A period of 18 days passedwithout a suggestion of trouble. Suddenly.a nationally circulated magazine appearedfeaturing photographs of black and whitechildren in class and at play. It \Va soonapparent that the situation at Hoxie wasgetting Oul of hand as segregationists fromall over the south came to Hoxie. Therewere threats, serious hostilities, and everyproblem to be imagined. The Hoxieschools closed.

"The Hoxie board decided to seek legalassistance. I agreed (0 meet with them ata board member's home and agreed thatmy two partners (my father and my wife)would take part in the case along withattorneys James Sloan of Walnut Ridgeand Edwin Dunaway of Little Rock.

"An early setback came as a resull of along telephone conversation withThurgood Marshall and several of hisassociates in the N.A.A.C.P. who wereknowledgeable in the area of law applica­ble to the Hoxie situation. We were toldwe must first find one or more black par­ents to bring the suit on behalf of theirchild. and that we should solicit suchplaintiffs. However. the Hoxie SchoolBoard and we, as its attorneys, unani­mously agreed that we would make noeffort to pursue such a strategy.

"Our position was that if the Federalcouns could order Hoxie to cease having aracially segregated school system, then ourgovernment had a legal duty to supportHoxie officials in carrying out their feder­al duties.

"The complaint was filed in the federaldistrict court in Little Rock on October 13,1955. and was assigned to Judge ThomasC. Trimble. He issued a temporaryrestraining order the next day and set ahearing on the motion for preliminaryinjunction for October 20. On the 20th,defendant Guthridge, represented by M. V.Moody and W. H. Gregory of Little Rock,filed a motion to dismiss the complaintalleging it failed to state a cause of actionand that the court did not have jurisdiction.Briefs were filed and, quickly, Judge

see "Hoxie" page 18

Trimble filed an opinion on October 31overruling the motion to dismiss. In hisopinion on the motion, reported at 135 F.Supp. 296 (1955), Judge Trimble reiterat­ed the essence of the complaint: '[T]hedefendants by threats and efforts to intim­idate the Board of Directors, by the circu­lation of propaganda literature and byintlammarory speeches. as well as by tres­passing upon school property under juris­diction of the plaintiffs. and by threateningto set up a picket line to obstruct ingress ofchildren to the school, and by attemptingto persuade children's parents to withdrawthem from the schools, are endeavoring tohinder, obstruct and defeat plaintiffsattempt to comply with federal law withregard to the operation of the school.'

"Accepting the allegations of the com­plaint as true, Judge Trimble went on to

note that: 'The case so presented is almostthe exact opposite of cases that have beenconsidered by both state and federal courtsin the nation. Other courts have had underconsideration the question whether or notBoards of Directors can be compelled toopen their schools to Negro childrenwhere they are prohibited by state law toattend such schools. Here, however, thecomplaint alleges that the Board ofDirectors have determined that the schoolsshould be opened to egro pupils, but thatthe defendants are undertaking 10 preventthem from doing so.' Then, in overrulingthe motion to dismiss, the judge stated: 'Ishall not disclose what my own personalfeelings are WiOl respect to whether or notit would be wise or desirable that segrega­tion of the races in the public schools ofthis state be enforced as provided by statelaws that have been effective since 1875;however, it must be stated that there arenow no valid segregation laws of the Stateof Arkansas, for they have, in effect, beendeclared unconstitutional and void by theSupreme Court.' The case was thenassigned to Judge Albert L. Reeves fortrial. W.H. Gregory dropped out asdefense counsel and Jim Johnson steppedin as both a defendant and attorney, alongwith M. V. Moody. On January 9, 1956,Judge Reeves made the preliminaryinjunction permanent; his decision isreported at 137 F. Supp. 364 (1956).Judge Reeves made specific findings offact, including that the order of the schoolboard to integrate the schools was accept­able and agreeable to an overwhelmingmajority of the patrons and residents of

Hoxie, and that the segregationist agitators Law Journal by Professor Wesleydisavowed violence, yet the utterances dis- Newcomb Hohfeld [23 Yale LJ. 16 (1913)closed by the evidence showed that the and 26 Yale LJ. 710 (1917)]. She hadwords used, and the very nature of the been interested in Dr. Hohfeld and hisspeeches, would have and did have the scheme of jural opposites/jural relationseffect to not only encourage violence but with jural correlatives. Her argument wasto intimidate those who were charged with that if Hoxie's officials had a legal duty 10

the responsibility of integrating the races. desegregate then they had Hohfeld's cor-Judge Reeves also stated as a conclusion relative right to be protectedof law Ihal the defendants were conspira- by Ihe federal courts.tors and the acts of each conspirator were "It was scary to read in the Yale Lawbinding upon all the others. Journal of April 1956 [while the appeal

"The defendants appealed the ruling was pending] that "...since the Hoxieaimost immediateIy, and the ;;;:;::;:=:::::;;;;;;:::;:;:;;;;;;~;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;~case drew some nationalattention. For appellate pur­poses, the plaintiffs' legalteam decided to use as ilscentral theory to the appel­lants argumenl of lack ofjurisdiction, the basic con­

cept of legal rights and 1I1i~~~duties."

As Bill Penix recalls: "Mywife and partner, Marian,while she was at theUniversity of ArkansasSchool of Law, had becomeacquainted with two articles in the Yole

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"Hoxie"School Board rather lhan a sludent suedfor injunction, the District Court's holdingthat it had jurisdiclion is questionable.The same result may be oblained as longas a suit is initially broughl on behalf ofan aggrieved student. Comment. LegalSanctions to Enforce Desegregation in thePublic Schools: The COll1empt Power andIhe CiI'il Righls ACls. 65 Yale L.J. 630.637, n. 27 (1956). The Anomey Generalof Georgia filed an amicus brief in supportof the segregationists. and the Departmentof Justice filed an amicus brief in supportof the Hoxie school directors.

"On OClober 25. 1956. the .S. Courtof Appeals for the Eighth Circuit affinnedour district court victory. The court heldthaI Dr. Hohfeld's jural relations were lhelaw: 'The existence of a conslitulionalduty presupposes a correlalive constitu­tional right in the person for whol11 thedUly is to be exercised.' [238 F.2d 91. 1001The court also held lhat lhe school boardstood in loco parell1;s with the students,and could represent Ihe students' interestin desegregaled schools.

The Hoxie case was the subject of acasenOle in 70 Harv. L. Rev. 1299 (1957).On lhe issue of whelher the school boardcould seek injunctive relief. Ihe note writerconcluded: "If relief cannot constitution­ally be granted to a school board ... aschool district which is ordered to deseg­regate is entitled 10 greater federal protec­tion than one which voluntarily desegre­gates, since a federal coul1 may vindicateits authority by reslraining privat.e individ­uals from inlerfering with school officialswho are endeavoring 10 comply with a

judicial decree."Virtually every school desegregation

case in lhe federal reporls since 1954 hashad students as plaintiffs 'md the school, orthe districl, or lhe state as defendants. TheHoxie case stands as a fascinating monu­ment to creative lawyering in crafting andapplying constitulional theory. In a lead­ing constitutional law casebook in the1960·s. by Professors Freund. Sutherland.Howe and Brown (all of Harvard LawSchool). the Eighlh Circuit opinion in theHoxie case is the only non-U.S. SupremeCourt opinion in the enlire book.

If lhe lesson of the Hoxie case hadbeen taken to heart by Arkansas politiciansin 1957. the Cenlral High School episodemight never have happened. And insteadof celebraling lhe fortieth anniversary ofinlegralion at Central High, we would becelebrating lhe forty-second anniversaryof integnuion in the Hoxie schools.·:·

Mort Citelmcw is a law professor CI1 theUllivers;ty ofArkallsos School af Law olldBill Penix lias retired /i'om the practice oflaw after 40 years.

NOTICEThe Local Rules for the Eastern and

Western pistricts of Arkansas have

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Stephanie D. Bohanan

Glenn E. Borkowslci

Shannon L. Boy

Mich.e1 W. Boyd

Robert Dale Brandon

Warmond M. Brown

Stephen T. Brown III

Sherry D. Burnett

Bruce K. Burton

David Roy c',nnon

joel E. C.pe

David R. Cason

Stuart Arnold Cearley

Adam J. Chandler

Courtney M. Cheney

Thomas B. Chilton

Jennifer B. Compton

C. Thomas Corbin

joseph C. Cunninglum

Amy unningham

<Jwia~in D.idm,j,

Marcus A. Davis

Deborah S. Denton

Grant C. lXProw

Michelle H. Dill.rd

Jennifer c. Donaldson

Amy M. Driver

P.ul A. Efurd

Stephen G. Fallon

Shannon L. Fant

Fara Elizabeth Faubus

David C. Ferguson

Leslie Plowman Fisken

Ch.rI", . Floyd

th T. Ford

Andrew V. Francis

John K. Fulweiler

Buck C. Gibson

Todd A. Gibson

Eddie Mac Golden

Tonia S. Goolsby

Stephanie D. Gordon

Connie L. Grace

D.vid C. G<>bam, j'­

James F. Gramling, Jr.

William L. Griggs, IV

G,ny Gunderman

Mae E. Haney

DAILY, WEST, CORE, COFFMAN & CANFIELD P.L.L.C.announces that the name of the law firm has been returned to

daily & woodswhich was the name of the law firm between its founding in 1919

by Harry P. Daily and John P. Woods and 1970, when it became Daily, West, Core & CoffmanIt is now AProfessional limited liability Company

The Law Firm Continues to Practice Law from Offices Located at623 Garrison Avenue, Suite 600, Fort Smith, Artlansas 72901Telephone: (501) 782·0361 Facsimile: (501) 782·6160

The Principals of the firm are:Ben Core Wyman R. Wade, Jr.Jerry L. Canfield Stanley A. LeasureThomas A. Dally Douglas M. Carson

Robert W. BishopAssociate: Todd P. Lewis Of Counsel: James E. West

IS U, \r~mlll.l~!,r fill 1!Ii

MOLLY PLYINVESTIGATIONS

Office 501 397-2620Pager 501 396-2629

NOTICE

JANUARY 24, 1998

HOUSE OF DELEGATES MEETING

Peabody HotelMemphis, TN

ing capacity, Ihe courl may consider thereasons therefor. If earnings are reducedas a mailer of choice and nol for reason­able cause, rhe COurl may anribut e income10 a payor up to his or her earning capaci­ty, including considenuion of the payor'sIife-slyle. Lncome of al least minimumwage shall be attributed to a payor orderedto pay child support."

Other changes in the child supportguidelines modify Ihe written findingswhen Ihe court deviales from the chartamount, the definilion of income, and allo­cation of dependents for lax purposes.•:.

CIVIL & CRIMINAL INVESTIGATIONSVIDEO & AUDIO SURVEILLANCE

ASSET LOCATIONCOMPUTER ASSISTED SEARCHES

LICENSE #D97-046P.O. Box 61

Redfield, AR 72132

Supreme Court of Arkansas

Modifies Child Support

Guidelines

JOHN T. BATES, P.E. 1-800-299-5950Have reconstructed over 3,000 accidents in 18 states in25 years on highways, streets, railroads, highwayconstruction zO/les involving trucks, cars, pedestrians.Computer animations and drawings prepared forexhibits. "ACTAR" certified. Over 40 yearsengineering experience.TRAFFIC ACCIDENT RECONSTRUCTION

AND

EVALUATION OF HIGHWAY DESIGN

I n a per curiam opinion deliveredSeptember 25, 1997, the SupremeCourt of Arkansas issued

Administralive Order Number 10 whichcontains revisions to the child suppor!guidelines. The effective date of thisAdministrative Order is October I, 1997.The following are some of Ihe substantivechanges in these new child support guide­lines:• The Arkansas Family Support Chairt,both weekly and monthly, has beenchanged as to the chart amounts.

The percentages indicating when thepayor's income exceeds Ihe chari havebeen revised.·The Affidavit of Financial Means hasbeen abbreviated somewhat.

One of the new provisions inl.he guide­lines concerns the awarding of supportbased on imputed income. "If a payor isunemployed or working below full earn-

William C. Plouffe, Jr.

Edward L. Quinn, Jr.

Jennifer A. Rabbe

Laura C. Ranalli

Helene N. Rayder

joseph D. Reece

john C. Riedel

Sherri Lynn Robinson

leI[ Rolfe, IV

Richard N. Rosen

Michael E. Sanders

Jay Scholcens

John M. Scon

Stacey L. Seanor

Gail T. Segers

J. Hudson Shepard, J"

Jeffrey G. Sikes

Brenda J. Snow

Rebecca S. Solera

David W. Sterling

Michael D.R. Stevens

Jan William Sturner

Den David Swindle

John P. Talbor

limothy M. Tallach

Camille Steadman

Thompson

Raben EThompoon, III

Cody D. Thompson

Stephen M. Trail

Christopher L. Travis

Casey Rae Tucker

Daniel O. Turner

Andy Lee Turner

Jason H. Wales

David A. Washnock

limon Jeremy Watson

Rosalyn A. Warts

Elisa M. White

Morris L. Williams, III

Thomas B. Wilson

Joan E. Wilson

Caroline L Wmningham

Shawn A. Womack

Karen K. Wood

Julie Anne Purifoy

Wright

John R. Yates

Perry Y. Young

Dan Clark Young

Dennis R. Hansen

Charles S. Harmon

Jason M. Hatfield

Cymhia L. Hawkins

Philip J. Hayes

Christopher W. Hays

Jennifer B. Hendren

Jason B. Hendren

Counney Rae Henry

Mark M. Henry

Michael K. Herring

Leslie H. Herrington

Avalon Gayle He"e1

Curtis W Hin

Mark W. Hodge

Jennifer R. Hodges

Michael Scott Hodson

Diane S. Holitik

Steven R. Jackson

Jeb Hunter Joyce

Roy Berh Kelley

joe Harvey Kimmel, III

Ellen Faubus Kreth

Jeremy K. Landon

William F. Lang, rvElizabeth S. Langston

Tom J. Laub

Michael A. Lilly

Pamela M. Long

John D. Maddox, II

Jacqueline w. Major

Manzer J. Mansour

Sara Lynne Marshall

Winston C. Mathis

Nancy L. Mathis

Kristi Ann Mattes

Melanie J. McClure

Patrick C. McDaniel

Mary Efu.beth MeFadyen

Phillis M. McKenzie

Miehelle M. Mhoon

Cylemhia L. Miller

Deenita Dawn Moak

Charlotte A. Moore

Jeffrey J. Mullins

Graham H. ations

SUSU1 D. Neisser-Ko~nes

Kevin Jay Orr

John O. Payne

Peter Branko Pejic

1'1II191i 11/ ,lr~alSls ta""" II

VOCALS 1982-1997:JOINT VENTURE FOR JUSTICE

by Jean Carter and Mary Henry

';Dear Fellow A!torney: We are writingto request your participation ill all organi­zation which is the firsl of its kind:'

Thus began the letter dated September1982 which was mailed to attorneysthroughout Pulaski Coumy. The letterwent on 10 ask the attorneys to join"VOCALS," Volunteers Organizalion forCentral Arkansas Legal Services, a jointventure of the Pulaski County BarAssocimion and Central Arkansas LegalServices (CALS).

The leiter was signed by W. RussellMeeks, President of the 1982 PulaskiCounty Bar Association, along with the

/983 Sfflf~ proclnmntion acknowledging VOC.ALS 300lbmnnber, COl/emor Bill Climon. From /¢: LeglllSeroicrJBoard President, Km Gould. VOC4.LS Board members,Russ Muks andJane Dickey. Gov. Climon, VOOILS Boardmembers. Mark Lmer and \f/mdell Griffin.

VOCALS Board or Directors whichincluded: M. Jane Dickey, Milas H. Hale,Phillip Carroll, Wendell L. Griffen, ByronL. Freeland, Markham Lester and Kaye S.Oberlag (McCleod). The VOCALS pro­ject was the result of months of hard workby this board and the bar comminces thatwere fonned to address the crisis in feder­al funding of legal services.

Fifteen years ago, Central ArkansasLegal Services was facing a $200,000 cutin federal funding from the previous year.Layoffs had occurred, and staff attorneyswere only available for emergency cases.

The Pulaski County bar rallied to thecause and organized VOCALS as a pro

iO n, \r~milll.l~l,r rill 1!9i

bono organization to replace the small probono panel of referral attorneys which hadoperated at CALS since 1977. Attorneyswere asked to join VOCALS and agree toeither accept up to three pro bono cases ayear or contribute annual dues to help fundthe program. A special emphasis on legalhelp to the low income elderly was also animportant component of the program fromthe beginning.

At a Capitol Rotunda press conferencejust six months after the original recruit­ment letter, the VOCALS program wastrumpeting its 300th member: then­Governor Bill Clinton. By April of 1984,three hundred and fifty (350) PulaskiCounty attorneys belonged to VOCALS,and more than one thousand (1,000) caseshad been completed, with $22,000 raised.And VOCALS had one of the best probmw programs in the country. In 1985,the Pulaski County Bar Association wasrecognized for its effort by the AmericanBar Association and the Narional LegalAid and Defenders Association for the"outstanding leadership and support"given the VOCALS Program and was pre­sented with the Harrison Tweed Award.

Much has changed in the past fifteenyears. Central Arkansas Legal Servicesmerged with Legal Services of Arkansas in1995 and is now the Center for ArkansasLegal Services. The VOCALS name isshared with the pro bono programs in theother 31 counties served by the Center.Don Hollingsworth, who was so importantin the fonnation and administration of theprogram, is now the Executive Director ofthe Arkansas Bar Association.Fortunately, his commitment is shared bythe current VOCALS Executive Director,Jean Turner Carter. The current Board ofDireclOrs for VOCALS is: Frank Sewall,Richard Donovan, Laura Wiltshire, EdDillon, Win Drummond, Troy Price, ArkieByrd, Audrey Evans, Jeanne Seewald,Carolyn Witherspoon and William M.Griffin.

Year after year VOCALS has surpassed

the goals set by the board both in member­ship numbers and dues comributed to theprogram. In 1996-97, over $117,000 wascontributed and there are now 785VOCALS members. The value of the probOllo representation to low income peoplein Pulaski County was placed at over$640.000 last year.

On this fifteenth anniversary. the visionand the wisdom of those first bar commit­tee members and the tremendous hardwork of the original VOCALS BoardMembers is appreciated and re­membered.·:·

.leall Carrer is lite Execlllive DireclOr alldMary Henry is the Volunteer ServicesCoordinator of the Cell1er [or ArkansasLegal Services (VOCALS).

c../t lisa

f?T horne

{f orke

Attomey at Law

.:.AppeUate advocacy

·:·Legal research

·:·General practice

125 East Township. Suite 3Fayetteville. Arkansas 72703

(501) 443-2249Facsimile (501) 443-8016

E-mail alc@iso.net

PROFESSIONAL LIBRARY

AR Bar PublicationsAre Exclusively OnThe LOIS CD-ROM!

The Arkansas Bar and LOIS have teamed up toproduce a comprehensive law library for Arkansas.This CD-ROM contains a complete Arkansasprimary law library PLUS publications from theArkansas Bar.

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Put the power of LOIS and the Arkansas Bar towork for you. Call 800-364-2512, ext. 152 toplace your order or request a FREE trial copy.

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by Justice Robert L. Brown &Sheila Campbell

HOW THEPUBLIC VIEWSFEMALE AND BLACKATTORNEYS

Introductiotlby JI/stice Robert L. Browll

Abo/ll two years ago. Sheila CampbellGild I met as co-chairs ofthe Comm;uee all

Opportunities for Women and MinoriTies10 discuss projects for Ihe year. II wasSheila's idea 10 condllct a public opinionpoll all how women and Africal/-Americanattorneys are viewed by tile public at large.Does bias exist? If so. wllm form does itrake? And who are 1110S1 likely lO exhibitprejudice against oflomeys wllo are I/O!

while males.We illi/iolly rail ;1110 a s11ag because of

Ihe absence of any [lIl1ding source for theproject. It was 01 1hOl paim {hat SandraMoll stepped ill alld sllggested thatProfessor DOl/glas Bllffalo at theUllh'ersity of Arkansas at Liffle Rock becomocted aboUl doing a slilTey as a dassassignmel11. The idea has borne/ruff. TheArkansas Bar Association made its tele­phone bank available, and ,he statewidepoll was done at minimal e.\JJense in all 75cOIt11fies with 548 responde11fs.

Wllat follows is Professor Buffalo·sdescriptioll of IIis metllodology aud IIisoualysis of tile poll results. Tile first partof tile poll deals witll perceptiolls of maleand female attOT!U!)'S and the second wi,hwhite and black attorneys.

Not surprisingly. the public in the pastlias tilred decidedly ill fmw of",IIite maleswhen hiring an ollorney. Nel'ertheless,when asked the gender of the attorney theywould hire in certain areas ill the fwure,male andfemale respondews both opted infOl'or of women as counsel fordil'orce/child custody mailers, sexualharassmew cases. and discrimination law

.... Ut Irlmal La'rtf Fall Illi

suits. In another area examined. mostrespondews, who believell there was apreference. thought mole attorneys weretaken more seriously by juries thall femalea11orl1eys. Howe\'er. the \'ast majority ofrespollde11fs said thOl judges did not exhib­it prejudice in fal'or ofa110meys based 011

gender.Perhaps the most i11friglting re\'elmion

frOlll tile geuder pall is tllar tile publicviews male a110meys os being more likelyto ol'ercharge ond do unnecessary work.bllt yet people are still IIIore likely to selectmole counsel than female counsel in mostareas. The public also sees female 0110r­lIeys as horder workers and more solici­tous of their cliews but nonetheless mostpeople leon toward male counsel. Why?The allswer is IIl1clew: One suggestedexplanation is that people are more willingto be o\'ercharged by an eswblished maleof/oriley who has experience ill the partic­ular area of the law than a less seasolledfemale lawyer.

With respect to race. the poll evidenceda decided perceptiou by Africau­Americans that juries are skewed againstthem. Whites. 011 the other hand, tended torespond that both white and black allor­lIeys were treated in most respects thesame by juries alld thm discriminationagainst black allorneys did II0t exist.Pollsters reported to Professor Buffalothat both blacks and whites were to/com­fortable answering questiolls all race, andrhat white responde11fs did liar wow to beperceh'ed as biased. Judges agoill wereviewed more likely tholl juries to befair toblack aflorneys.

The Views & Methodology:A sample of 548 lelephone subscribers

was drawn from Arkansas' seventy-fivecounties. The sample was stratified bycongressional district so Ihal each congres­sional district was equally represented.The random digil dialing melhod was usedto include all potential numbers inlo thesample. To ensure thai a pattern would notdevelop, the Waksberg Method was used.This method selects numbers with legiti­mate prefixes and adds a random numeral[0 the end of each number that is chosen.and allows unlisted numbers (0 be incor­porated into the sample.

Calls were made by sociology studentsat the University of Arkansas at LinleRock between 6:00 p.m. and 9:00 p.m.Monday Ihrough Saturday starting onApril 17 and ending on March 8, 1997.Students were under the direction of Dr.M.D. Buffalo.

John Knox, a Roberl McNair Scholar,developed lhe initial questionnaire in thesummer of 1996. This instrument waslested on approximalely 150 Arkansans.In addition, in the Spring of 1997. the soci­ology research class at Ihe University ofArkansas at Little Rock further pretestedand refined the questionnaire.

Two issues need to be addressed prior(0 presentation of the survey. While con­ducting the pretest. at least one unresolvedproblem was encountered. Respondentsindicated significant discomforl withissues of race. This uneasiness wasexpressed by both black and while respon­dents and Lhis discomfort continued intothe final survey. Among whites the con­cern was mosl often expressed as a fear of

61.5 10.3 28.2 340

62.0 8.5 29.6 142

61.7 10.9 27.5 193 nN: nol a significant dltlerence between the two groups

526519531529530532

25.9 29.127.7 26.853.3 20.217.4 30.419.8 30.662.6 16.4

45.145.526652.249.621.1

see "Attorneys" I>age 24

RespondentsMale Female Both Total

Gender of the LawyerMale FemaleBoth Total

Which lawyer would youhire with a legal probleminvolving...Wills/InheritanceMalpracticeDivorce/Child CustodyCar AccidentfTrafficSetting up a BusinessSexual Harassment

Male RespondentMale Female Both Total

Female RespondentMale Female Both Total

What is the gender ofthe lawyer you knowpersonally?

A very different picture emerges whenwe compare the gender of the attorney thatrespondents have used for prior legal ser­vices and the gender of the attorney thatthey say they would use if they had a legalproblem. A majority said that they woulduse a female attorney for issues involvingdivorce and child custody, sexual harass­ment, and if accused of sexual discrimina­tion. A majority indicated that they woulduse women attorneys for problems of dis­crimination. Generally, respondents saidthat they would choose female attorneysfor problems generally associated Wilh"women's issues."

A majority of respondents said theywould chose a male attorney for car/trafficaccidents. A majority also said they woulduse male anorneys for wills and inheri­tance, malpractice. and setting up a busi­ness. Except in the case of sexual dis­crimination, at least one in five said lhalthe gender of the attorney did not maner("Both").

What is the gender ofthe lawyer you knowpersonally?

What is the gender ofthe lawyer you knowpersonally?

Male RespondentsYes No Total69.3 30.7 202

Female RespondentsYes No Total61.7 38.3 313 NSD

Gender of the LawyerMale Female Both Total

Lawyer retained for:Wills/Inheritance 87.3 7.3 55 55Malpractice 81.8 18.2 11Divorce/Child Custody 79.5 12.5 8.0 88Car AccidentfTraffic 91.5 8.5 47Business/Corporation 79.6 14.3 6.1 49Criminal 95.7 4.3 23Other 78.4 17.0 4.5 88

Male RespondentMale Female Both Total

Lawyer used for:Wills/Inheritance 688 18.8 125 16Malpractice 889 11.1 9Divorce/Child Custody 74.2 12.9 12.9 31Car AccidentfTraffic 90.0 10.0 20Business/Corporation 83.3 8.3 8.3 24Criminal 100.0 13Other 74.4 20.5 5.1 39

Female RespondenlMale FemaleBoth Total

Lawyer retained for:Wills/Inheritance 94.9 2.6 2.6 39 sMalpractice 50.5 50.5 2nDivorce/Child Custody 82.5 12.3 5.3 57nCar AccidentfTraffic 92.3 7.7 26 nBusiness/Corporation 76.0 20.2 4.0 25 nCriminal 90.0 10.0 10 nOther 81.6 14.3 4.1 49 ns: SlgnlhCant difference In the two groupsn: not enough cases to generalize

Do you know a lawyer personally?Respondents

Yes No Total65.0 350 520

NSD: not a sign~icant difference between the two groups

Almost two oul of three Arkansans sur­veyed indicated that they knew an attorneypersonally. This figure was the same forboth men and women. Slightly over one insix only knew a male attorney and one inten knew only a female lawyer. More thanone in four knew attorneys of both sexes.Combining those that knew both male andfemale attorneys, almost 90% of therespondents knew a male attorney, whileslightly less than 25% knew a femaleattorney. Women were more likely toknow a male attorney than a female attor­ney-the same pattern found among malerespondents.

Male RespondentsYes No Total59.7 40.3 216

Female RespondentsYes No Total58.4 41.6 327 NSD

being perceived as racist. While blacksalmost never expressed concern of beingperceived as a racist, they often expressedcuriosity about the survey and its uses as itrelates to race. No similar sensitivity wasexpressed regarding gender issues.

Related to the concern regarding racialissues is the issue of Usocially desirableresponses." A "socially desirableresponse" occurs when the respondentalters his or her answers so as to be con­sistent with what is believed to be theinterviewer's opinion. It is often difficultto detennine whether the answers wereactually the respondent's opinions orsocially desirable responses. Our analysisof a set of polls conducted by CBS and theNew York Times (1994) regarding issuesrelated to the OJ. Simpson trial pointed tosimilar problems. While respondentsoften exhibited extreme uneasiness regard­ing racial issues in the Arkansas BarAssociation Sample, no evidence ofsocially desirable responses was found(based on the race of the interviewer).

N$D: not a significant difference between the two groups

Knowledge and se of LawyersMost respondents (58.6%) had retained

a lawyer at some time in their life. Thepattern was not different for men (59.7%)than for women (58.4%).

GENDER

Survey respondents indicated that theyhad employed men much more frequentlythan women for every legal specialty thatwas mentioned. With only one exception,no difference was found between men andwomen regarding their pattern of prefer­ence for male attorneys in past legal cases.The only exception was that men wereslightly more likely than women lO haveretained women for legal work involvingwills and inheritance.

Have you ever retained a lawyer?Respondents

Yes No Total58.6 41.4 548

rall199i 1'hr ,\rklnm La\\)rr t~

"Attorneys"

\Vhen the responses of men and womenare compared we find that in three areas(car/traffic accidents. setting up a business.and discrimination) men and women'sresponses significantly differ. In all threecases men were more likely than women tosay that they would choose lawyers of theirown sex.

Reasons why one gender has an advantage overanother gender when the jUdge Is male.

PercentMale Female

Societal Views/DominentGender 52 30Competency!Education of Gender 7 0Personal Perceplion!Experience of Respondent 4 10Identifying with One's

see "Attorneys" page 26

decision for our children, by returning to his

home. I am sure that my experiences in tho einitial months provided the genesis of my

desire to become a lawyer.

My history is also profoundly different

from that of the other two women whohave been sworn in this week. For I

remember all too well that when my

husband and I were married in1963, my wedding announce­

ment was rejected as unsuit­able and unacceptable by the

local Pine Bluff newspa­

per...my picture deemed

unfit to occupy even apage of newsprint besidethe photographs of other

local brides.

So, for me to stand

here today wilh the other

judges is a testament tothe progress we have

made and, I hope, will

continue to make in mychosen home and in my

chosen profession. And a I

take my place as one of 12

judges--3 women, 3 African­

Americans--I also feel a deep

sense of humility, but I am very,

very proud to serve on a court that soexemplifies true diversity--that indeed

includes us all.

Thank you.•:.

Total86 NSD

Survey responses as to why Arkansansbelieve that males have an advantage witha male judge are lisled below. based on thesex of the respondent. The reasons werenot particularly enlightening and for themost part simply noted the dominance ofmen in society and the workplace.

If Judge is male, Who has advantage?Female Respondents

Male Female88.4 11.6

NSD: nol a SIgnificant difference between the two groups

found inPine Bluff

with respect to thestatus of African Amcricans. My husband andI questioned whether we had made the right

finger of your hand and still have fmgers left

over. I cried many tears during my first fewmonths as an Arkansan, and not the least ofthose tears were forthe state of

affairsthat I

Total49

Totai137

Female2004

Female34.7

the judge were asked who they thought hadan advantage if the judge was malc.Almost eight in ten said that malcs have anadvantage.

Male RespondentsMale65.3

If jUdge is male - Who has advantage?Respondents

Male79.6

month, and year after year. It was a grueling

pace. at times exhausting, and it is matched byonly one other supreme court in the nation. I

am proud to have been associated with a courtwith such an outstanding work ethic and dcdi­cation to duty. I know thal my tenure on thatcourt will indeed serve me in good stead onthe court of appeals in the months and years to

come.But, as I listcned to the remarks and the

stories of the other new justice and judges, Icould not help but think that there is some­

thing profoundly different about my history,

and consequentty my appointment to the

court--something that sets me apart fromall the Olhers whose swearing-in cere­monies we have witnessed this week.

For I thought back on when I first

came to Arkansas with my husband in1969, to his home town of Pine Bluff. 10

live there and to raise our family there. Irecalled that in the initial weeks. I set

about to do all those mundane tasks that

musl be accomplished when changing

one's residence--obtaining a new driver'slicense. registering to vote, arranging forut;lity services. As I visited the various city,county and other offices, to my horror andshock, the only people like me whom Ier!tountered had their hands finnly clasped

ar und a broom or mop. For in 1969, there

were no African Americans in poSitions ofresponsibility in any of these offices. Therewas not even a secretary, not even a clerk,never mind judges, in the county courthouse.And in the whole of Arkansas, you could

count the African-American attorneys on the

Total195

Total309 NSD

To the judges, justices, and 10 all friends

and family mentbers assembled here for this

historic occasion--today we witness theArkansas Court of Appeals assume a full com­

plemenl of Iwelve judges--judges who will

enable this court to better serve the bar and thecitizenry by promptly resolving the caseswhich are presented to us. I am indeed proudto be a part of this new era for the court ofappeals.

As I listened to the words today of my fel­

low appointees to the court, and to the remarksof the three new Arkansas Supreme Court

Justices just yesterday, I was struck by their

many accomplishments, by the variety and

breadth of their experiences, both legal and

non-legal, and by lhe very personal stories that

they related. But I was most touched to hear

words of such humility and selnessness. from

those who have risen to the heights of powerand prestige in this state and even the nation,as they pledged to faithfully carry out the

responsibilities of this most high office. For it

is indeed an awesome responsibility to deter­mine not only the fortunes and even the liber­

ty of the parties before us, but also of others 10

come. by the precedents that we set down.

And. as I have learned, it is not a job for the

faint of heart or for one lacking in stamina.Over the past two years as I served on thesupreme court, there were times where Idevoted nearly every waking hour, week afterweek, to the work of the court. AI first I could

not believe il possible that the members of the

court could maintain such a fonnidable schcd­ule, to a great extent self-imposed, but theyhave done so, week after week, month after

!RJmark§ OfJudge Jlndree Layton '.RJJafi Jlr/(ansas Court ofJlppeafsSwearing-In Ceremony) January 7) 1997

Respondents who indicated their beliefthat the gender of the lawyer mauered to

Does the gender at the lawyer matter to the judge?Ves No Total30.8 69.2 509

Male RespondentsVes No27.2 72.8

Female RespondentsVes No32.7 67.3

N$O: not a Slgl"llficantlifference between the two groups

PercentMale Female

Societal Views/DominentGender 75 24Compelency!Education 01 Gender 13 33Personal Perception!Experience of Respondent 9 t8Identifying with One'sOwn Gender 1 6Other 2 18Total 100 '100(N) t7t 33'total may no! add 10 100 due to rounding

51.0 7.4 41.7 312s

36.2 14.3 49.5 210

Female RespondentsMale FemaleBoth Total

Male FemaleBoth Tolal

Male RespondentsMale FemaleBoth Total

45.2 10.1 44.8 236

Respondents were further asked if theythought that the judge was innuenced bythe gender of the anomey. Respondentswere more likely to indicate thc judge wasnot inlluenced than to indicate the jury wasuninnuenced by the gender of the auomey.Over two OUI of Ihree responded that thegender of the attorneys did not mailer tothe judge. Male and fcmale respondentswere no differclll on this issue.

Reasons given for onegender being taken moreseriously by juries thanthe other:

50: sigMicant tilletence in the two groups

Arkansans who claimed that one sex orthe other was favored by juries were askedto explain their answers. The majority(75%) of those who said that men are takenmore seriously used phrases such as: "it's aman's world: men are considered the dom­inant gender; society views men as moreserious than women. etc." Those that saidthat women are taken more seriously notedthat women were bettcr educated and morecompetent.

Which lawyer is takenmore seriously byjuries?

Which lawyer is takenmore seriously byjuries?

Which lawyer is takenmore seriously byjuries?

206209211213212207207212

26.2 23.852.2 16.71104 27.0t4.1 28.261.8 14.234.8 24.230.4 26.650.9 17.9

50.031.161.657.724.t41.143.031.1

Male RespondentsMale FemaleBoth TOlal

Which lawyer would youhire with a legal probleminvolving...MalpracticeDivorce/Child CustodyCar AccidentITrafficSetting up a BusinessSexual HarassmentDiscriminationAccused 01 Racial Dis.Accused of Sexual Dis.

Female RespondentsMale FemaleBoth TOlal

Which lawyer would youhire with a legal probleminvolving...Malpractice 42.2 29.2 28.6 308nDivorce/ChikJ Custody 23.3 53.9 22.7 317nCar AccidentlTraffic 45.4 21.6 33.0 315sSetting up a Business 43.3 24.0 32.7 312sSexual Harassment 18.7 63.2 18.1 315nDiscrimination 25.2 5104 23.3 313sAccused of Racial Dis. 33.0 37.9 29. t 306nAccused of Sexual Dis. 28.8 49.5 21.7 303ns. 5olgl"llflcana difference Il'l the two groupsn: not enough cases 10 generaize

Gender of the LawyerMale Female Both Total

Which lawyer would youhire with a legal probleminvolving...Discrimination 31.7 44.7 23.5 523Accused of Racial

Discrimination 37.t 35.1 27.8 518Accused 01 Sexual

Discrimination 29.8 50.2 20.0 530

Fairness in the Law ProfessionOver four in ten respondents indicated

that men are taken more seriously by juriesthan women. One in ten expressed thebelief that women are taken more serious­ly than men. A significant percent (44.8%)noted that there was no difference betweenmen and women as perceived by juries.Women were marc likely than men to saythat men were taken more seriously byjuries.

rill I!!) Til Ir'mil LI~W il

NSD: not asignirlcant difference between the two groups

·total may not add to 100 due [0 rounding

"Attorneys"Reasons why one gender has an advantage overanother gender when the judge is male.Own Gender 34 10Other 1 30Total "00 100(N) 67 10

General Attitudes About Law)'ersRespondents were asked a series of

questions designed to indicate general ani­tudes toward the profession and how thesealtitudes differ by gender. The following isthe summary of these findings: Womenattorneys were more likely to be seen in apositive light while men were more likelyto be seen in a negative light. A majorityof respondents noted Lhat women: 1) workharder; 2) keep clients well informed; 3)advocate legal reform; 4) become involvedin community work and charities; 5) caremore about the client Ihan winning; 6) pro­vide free legal services to the poor; and 7)charge the client the least amount ofmoney. Men on the other hand were morelikely 10 be perceived as: I) doing unnec­essary work to collect higher fees; 2) vio­lating ethical rules; and 3) filing unneces­sary lawsuits.

see "Attorneys" page 27

Gender of LawyerMale FemaleBoth Total

In your perception,which lawyer...Works harder 12.4 56.2 31.5 502Keeps clients wellinformed 16.3 56.5 272 496Advocates legal reform 23.5 53.8 22.7 480Involved in communitywort<lcharieties 176 60.7 21.6 522Does unnecessary workto collect fees 63.3 14.7 22.0 482

o

8

17

75o

10048

60

15

15

o10

10020

Reasons why one gender has an advantage overanother gender when the jUdge is female.

Male Female

15.9 62.7 21.4 528

Female RespondentsMale FemaleBoth Total

Societal Views/DominentGenderCompetencylEducation of GenderPersonal Perception!Experience of RespondentIdentifying with One'sOwn GenderOtherTotalIN)

Finally, respondenls were asked whichlawyer (male or female) was judged moreby appearance than abilities. Over six inten said women were. Men and womensurveyed responded basically the same tothis question. There was no significantdifference in their responses.

Male FemaleBoth Total

Male RespondentsMale FemaleBoth Total

Which lawyer is judgedmore by appearance thanabilities?

Which lawyer is judgedmore by appearance thanabilities? 15.9 62.3 21.7 207

Which lawyer is judgedmore by appearance thanabilities? 16.1 62.7 21.2 316

Total121

Total79 NSD

Total38

Female70.2

Those surveyed were also asked ifeither altoflley had an advantage if Ihejudge was female. Seven in ten indicatedthat a female anorney had an advantage ifthe judge was also female. There was nota significant difference in the way men andwomen respondents answered this ques­tion.

If judge Is female-Who has an advantage?Respondents

Male29.8

Male RespondentsMale Female25.6 77.4

Female RespondentsMale Female32.5 67.5

Respondents who said that a femaleattorney had an advantage if the judge wasalso female were asked to explain theiranswer. Responses are not enlightening.Most of the women who responded said

Ihat a female judge would idenlify withsomeone of her own sex, Men said that itwas a response to male domination.

John E. McAllister, P.E.Graduate Electrical Engineer, 34 Years Industrial Experience.Specialist in Industrial Machine Guarding and Safety.• Born 1921. B. Sc. in Electrical Engineering 1947.• 14 Years experience wilh General Electric Co. in engineering and industrial sales.• II Years President of company involved with repair and rewinding of ele~tric motors and

the manufacture, sales, installation and servicing of electrical control panels for induslry.• 9 Years President of large distributor specialiZing in the sales, manufacture, installation

and servicing of all types of safety equipment for industry wilh major emphasis on metalforming and stamping.

• Registered Professional Engineer in 3 states.• Curriculum vitae and references on request.

John E. McAliisler, 9 Sierra Lane, HOI Springs Village, AR 71909·3214Phone: (501) 922·1709 Fax: (501) 922-4177

~& nllrlmlll.all)rr fall 199/

NSD: not asignificant difference between the two groups

RACE

Knowledge and Use of LawyersThere was not a significant differencebel ween the percent of whites and blacksIhat had retained an attorney, Slightly overhalf of both groups said Ihat they hadretained an attorney.

If the respondent indicated that s(hehad retained an attorney, the race of theattorney was asked, The majority of attor­neys retained by respondenls wete white,The sampling number of cases is too smallto compare black responses to whites forstatistical signifigance.

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Whi,e attorneys were more likely to beknown by respondents Ihan black attor­neys. However, it is clear from the tablebelow that there is a significant differencebetween black and white respondentsregarding the race of the attorney theyknow, Blacks are more likely to know ablack attorney and whites are more likely

Black RespondentsVes No Tofal60.3 39,7 73

White RespondentsVes No Total66,3 33.7 427 NSD

NSO: not asignificant difference between the two groups

Do you know a lawyer personally?Respondents

Ves No Total65,0 35,0 520

Both respondenl groups were equallylikely to know an attorney. Six in ten indi­caled that they knew an attorney,

White RespondentBlack White Both Total

o 100 2o 100 3o 75,0 25,0 4

41,7 58,3 1242,9 57,1 760,0 40,0 550,0 50,0 10

Black RespondentBlack White Both Total

Lawyer retained for:Wills/Inheritance 8,2 91,8 49nMalpractice 14,3 85.7 7nDivorce/Child Custody 2.4 96,3 1.2 82nCar AccidenVfraffic 8,3 86,1 5.6 36nBusiness/Corporation 2.7 97,3 37nCriminal 14.3 85.7 21 nOther 5,8 91.3 2,9 69n5: signlicim difference In the two groupsn: nol enough cases to generalize

Lawyer used for:Wills/InheritanceMalpracticeDivorce/Child CustodyCar AccidenVfrafficBusiness/CorporationCriminalOther

Have you ever retained a lawyer?Respondents

Ves No Total58,6 41.1 548

Black RespondentsVes No Total51.4 48,6 74

White RespondentsVes No Total59,0 41.0 454 NSD

Poll," June, 1994, Ann Arbor Michigan:ICPSRCBS/The New York Times, "CBSNews/New York Times OJ, Simpson Poll#1," July, t994, Ann Arbor, Michigan:ICPSR,CBS/The ew York Times, "CBSNews/New York Times OJ, Simpson Poll#2," July, 1994, Ann Arbor, Michigan:ICPSR,

Female RespondentsMale FemaleBoth Total

"Attorneys"

In your perception,which lawyer..,Works harder 11.3 51,2 37.4 203Keeps clients wellinformed 19,8 528 27.4 197Advocates legal reform 18.4 579 23.7 190Involved in communitywor1<lcharieties 20,0 57,1 22,9 205Does unnecessary workto collect fees 64.4 13,1 22,2 198Gives free legal servicesto the poor 16.7 61.1 22.2 198Is more likely to violateethical rules 77.5 4,0 18,5 200Cares more about theclient 8,7 64,1 27,2 195Files an unnecessarylawsuit 66,3 13,3 20.4 196Charges the least amountof money 14,8 57,1 28,1 196

In your perceplion,which lawyer..,Works harder 12.9 60,0 27,1 295nKeeps clients wellinformed 13,9 59,2 26,9 294nAdvocates legal reform 26.7 51.2 22,1 285nInvolved in communityworklcharieties 16,0 628 21.2 312nDoes unnecessary workto collect fees 62,4 16,1 21.5 279nGives free legal servicesto the poor 17,5 57,8 24,7 308nIs more likely to violateethical rules 66,8 6,5 26.7 277sCares more about theclient 12.6 60,6 26,8 302nFiles an unnecessarylawsuit 61.9 14,2 23,8 281nCharges the least amountof money 15,3 54.3 30,3 300ns: significant dJHerence in the two groupsn: not enough cases to generalize

Gender of LawyerMale FemaleBoth Total

ReferencesCBS/The New York Times, "CBSNews/New York Times 0.1, Simpson

In your perception,which lawyer..,Gives free legal servicesto the poor 17,2 58,9 23,9 511Is more likely to violateethical rules 70,9 5,4 23,7 481Cares more about theclient 11.0 61,9 27,1 501Files an unnecessarylawsuit 63,3 14,0 22,7 480Charges the least amountof money 15,0 55.4 29,6 500

Male RespondenlsMale FemaleBoth Total

Fall199i Tbe ,lrkuslll,lll!er Ii

1I:l=lB

IIPAUL D. MIXON, Ph.D, P.E. ~ELECTRICAL ENGINEERING CONSULTANT

ELECTRICAL ACCIDENT INVESTIGATION• Reconstruction and Analysis. Property or Equipment Damage

• Personal Injury or Death. Stray Voltage

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Contact:

fDr. Paul MixonP.O. Box 3338

~State University. AR 72467(501)-972-2088E-mail: pmixon@navajo.astate.edu

23.0 36.5 7437.8 32.4 7427.0 35.1 7433.8 33.8 7438.9 31.9 7225.0 41.7 7217.6 27.0 7428.4 24.3 7427.0 28.4 74

53.4 42.7 436s47.3 45.9 423s48.3 47.1 435s45.8 47.0 430s46.7 48.0 435s41.2 46.7 437s37.6 42.7 426s31.9 40.0 423s46.2 46.0 435s

40.529.737.832.429.233.355.447.344.6

3.96.94.67.25.312.119.728.17.8

White RespondentsBlack White Both Total

14.3 51.4 34.3 70

Which lawyer is takenmore seriously byjuries?

4.9 30.4 64.7 447s

Which lawyer is takenmore seriously byjuries?

Which lawyer is takenmore seriously byjuries?

Race of the LawyerBiack White Both Total

see "Attorneys" page 29

s: significant difference in the two groups

s: a significant djtference between the two groups

6.4 33.6 60.0 535

Black RespondentsBlack White Both Total

Black RespondentBlack White Both Total

Which lawyer would youhire with a legal probleminvolving...Wills/InheritanceMalpracticeDivorce/Child CustodyCar AccidenVTrafficSetting up a BusinessSexual HarassmentDiscriminationAce. of Racial DiscAce. 01 Sexual Disc

White RespondentBlack White Both Total

Which lawyer would youhire with a legal probleminvolving...WillsllnheritanceMalpracticeDivorce/Child CustodyCar AccidenVTrafficSetting up a BusinessSexual HarassmentDiscriminationAce. 01 Racial DiscAce. of Sexual Disc

Fairness in the Law ProfessionThere was a significant difference in the

way Ihal black and white respondents per­ceived anomeys. A majority of blackrespondents indicated that white attorneyswere laken more seriously by juries lhanblack attorneys. Over six in len whiterespondents said that bolh black and whiteanomeys were laken equally seriously byjuries.

526519531529530532520517529

25.9 29.127.7 26.853.3 20.217.4 30.419.8 30.662.6 16.434.6 40.231.1 37.343.3 43.3

45.145.526.652.249.621.125.231.112.9

they would use a while anomey and Ihosewho said thaI either race was acceptable.

Significant differences were foundbetween black and white respondents intheir responses. White responses werealmost evenly splil bel ween indicalingwhite attorneys as a preference and indicat­ing that either race was appropriate. Blackrespondents were more likely than whiterespondenls to say Ihat a black lawyer wastheir preference. Compared to whiterespondents, black respondents were morelikely to indicate an opposite race attorneyas a preferen ceo

Race of the LawyerBlack White Both Total

Which lawyer would youhire with a legal probleminvolving...Wills/InheritanceMalpracticeDivorce/Child CustodyCar AcddenVTrafficSetting up a BusinessSexual HarassmentDiscriminationAce. 01 Racial DiscAce. of Sexual Disc

s: asignilicanl difference between the two groups

54.B 11.9 33.3 42

"A ttorneys"to know a while anomey. Also of signifi­gance is that blacks are more likely thanwhiles to know anomeys of both races.

4.2 82.2 13.6 287s

Black RespondentBlack White Both Total

What is the gender ofthe lawyer you knowpersonally?

10.6 72.9 16.5 340

RespondentsBlack White Both Total

What is the gender ofthe lawyer you knowpersonally?

White RespondentBlack White Both Total

What is the gender ofthe lawyer you knowpersonally?

Respondenls were also asked Iheir racialpreference for anorneys based on type oflegal service required. Responses werealmosl evenly splil bel ween Ihose who said

lS l\! .Irillsallnllf rlU Illi

Race of the lawyerBlack White Both Total

Which lawyer is judgedmore by appearance thanabilities? 25.3 23.2 51.4 525

in contrast, a majority of whites said thatboth races were equally likely to be judgedbased on appearance.

Total75s

Total104

Total2t

White22.7

White42.9

White28.8

If judge is black-who has advantage?Respondents

Black71.2

Black RespondentsBlack57.1

White RespondentsBlack77.3

"Attorneys"As in the case of gender issues, the rea­

sons given by respondents for perceptionsof bias on the pan of juries was not veryuseful. Most whites gave answers indicat­ing that they believe American societygives more acceptance and credit to whiteattorneys. Blacks gave a variety ofresponses with no clear pattern.

Announcing the Association of

Benson, Robinson &Wood, P,L,C.Attorneys at Law

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s: significant difference between the two groups

s: significant difference between the two groups

Black RespondentsBlack White Both Total

Race of LawyerBlack White Both Total

White RespondentsBlack White Both Total

In your perception,which lawyer...Works harder 35.1 16.0 48.9 481Keeps clients wellinformed 18.1 27.0 54.8 485Advocates legal reform 35.4 25.7 38.8 474

see "Attorneys" page 38

General Attitudes About LawyersFinally, subjects were asked about

their general attitudes toward lawyers andhow these altitudes might vary by race. Amajority of black respondents said thatblack attorneys: I) work harder; 2) advo­cate legal reform; 3) are involved in com­munity work and charities; 4) give freelegal aid to the poor; and 5) charge less.White respondents attributed positivequalities to their race less frequelllly andwere more likely to indicate that the two

races were no different.

Which lawyer is jUdgedmore by appearance thanabilities? 41.7 25 33.3 72

Which lawyer is jUdgedmore by appearance thanabilities? 22.7 22.9 54.4 436ss: signiflC3J11 difference between the two groups

Total82s

Total31

Total115

White84.1

White88.7

Whrte100.0

If the judge were white, both black andwhite respondents were likely to think thatattorneys of the same race would have anadvantage. While there was agreementbetween black and white respondents. sig­nificantly more blacks than whitesexpressed the bel ief that white lawyers hadan advantage before a white judge. So fewrespondents were willing to explain whythe race of the judge gave one attorney anadvantage over another that their respons­es were not usable.

Arkansan survey subjects were nextasked about the appearance of· attorneys:"Which lawyer is judged more by appear­ance than ability?" Blacks and whitesagain differed significantly in their percep­tion of how attorneys are perceived basedon race. Blacks were more likely thanwhites to say that black attorneys arejudged more by appearance than ability.

If judge is white-Who has an advantage?Respondents

Black11.3

Black RespondentsBlack0.0

White RespondentsBlack15.9

Societal ViewslDominentGender 37 72CompetencylEducation of Gender 26 8Personal Perception!Experience of Respondent 21 13Identifying with One'sOwn Gender 11 2Geographical Region ofRespondent 5 4Other 0 2Total 100 '100IN) 19 125'lOal may 001 add to 100 due to rounding

s: significant difference between the two groups

Those respondents that indicated thatthe race of the lawyer matters to the judgewere asked which race would have an

advantage if the judge were white or black.Both black and white repondents said thatif the judge were black the black lawyerhad an advantage. Whites were more like­ly than blacks to so indicate.

Does the race of the lawyer matter to the jUdge?Respondents

Yes No Tolal238 76.2 508

Black RespondentsYes No Total42.5 57.5 73

White RespondentsYes No Total21.2 78.8 416s

Judges were much more li.kely thanjuries to be viewed as fair by respondents.Both blacks and whites were likely to indi­cate that the race of the lawyer does notmatter to the judge. Nevenheless, therewas a difference between black responsesand white. Whites were significantly morelikely than blacks to say that they believedthat the race of the attorney has no influ­

ence of the judge.

Reasons why one gender has an advantage overanother gender when the jUdge is female.

PercentMale Female

I'all "Ii Ur lrkmll 1,IM)~r tl

TIME FOR CHANGEby Diane Schratz Holitik

he setting wasArkansas,1957. As thedoors to thethen segregat­ed GibbsElementarySchool wereopening forJoyce Will­

iams, the doors to Little Rock's CentralHigh School were being forced by courtorder to open for the first nine African­American students to attend. Little didJoyce Williams know that twenty yearslater, the doors of the Arkansas SupremeCourt would open willingly for her to bethe first African-American law clerk towork al the court.

In 1977, the atmosphere and mechanicsof the coun were somewhat different thannow. Although then, as now. seven jus­tices sat on the coun, each justice al thattime had only one law clerk and one sec­retary. Each chamber was separate, andthere was lillie interaction between thestaffs. This was the system when JoyceWilliams Warren came to work at theArkansas Supreme Court with newlyelected Justice Darrell Hickman in January1977.

Joyce Williams Warren graduated fromthe University of Arkansas at Little RockSchool of Law in 1976. With her hus­band's encouragement, she applied for aclerking position with Judge Hickman,who was still a chancellor at the time. buthad been elected to the Arkansas SupremeCourt without opposition in November.

Judge Hickman asked Judge Warren,who describes herself as an average toabove-average student. to come in for aninterview. Justice Hickman described hisinitial impression of her from the inter­view: "She impressed me. She had adelightful personality and had goodgrades." Judge Warren got the job andjoined the court staff as his first law clerk,an interim position that would last fromJanuary until August of that year.

Justice Hickman did 1101 know that

11 T"lII,hllill.lw!t, rill Illi

Judge Warren would be the first African­American clerk on the coun staff when hehired her. What he did soon realize wasthat he had hired a ·'dependable, hard­working" attorney. who was also a finewriter. When asked about her participa-

"Justice John Fogelman,

who served on the court

during this time, recalled

that Joyce Williams Warren's

coming to work at the court

was taken 'as a matter of

course; there was no

atmosphere of opposition:

Judge Warren never thought

in terms of being the first

African-American clerk

herself. Once she reached

the court, she too found that

she did not experience any

opposition or controversy.

However, there was some

fu . "con slOn...

tion in his transition, Justice Hickmansaid. "She was a big help to me. Her workmade it easier for me. I encouraged her (0

nm for judge herself, and not to wait for anappointment." At a later date, when thenAttorney General Bill Clinton askedJustice Hickman for a recommendation ofJudge Warren for a job, he guaranteed:"She'll never disappoint you."

When speaking of Judge Warren's writ­ing talents, Justice Hickman related a storyabout a writing seminar that he had attend­ed in Florida with Justice George RoseSmith around February in his first year onthe court. The school asked its partici­pants to send their writings back periodi­cally so that the instructor could monitortheir progress and provide comments.Justice Hickman said that he had a policyof letting his clerks draft an opinion oncethey had gotten some experience. Oncewhen Judge Warren was coming to the endof her tenure with him at the court, JusticeHickman sent the instructor an opinionthat she had drafted instead of one of hisown writings. He laughingly recountshow his instructor "sent it back and notedhow much I was improving."

Today, Judge Warren still describes herclerking experience as "a dream of a life­time." She loved her job, and she thoughtat the time that she would never find a jobthat she liked as much. Happily, her CUT­

renl position has dispelled that fear. Sixyears after she left the court, JusticeHickman's prediction came at least partial­ly true. Judge Warren was appointed ajuvenile mediator in 1983 through thecounty judges' offices. In 1987, she wasappointed to the Juvenile JusticeCommission; and, in 1989, GovernorClinton appointed her a chancellor in thenew Pulaski County Juvenile JusticeCourt. Judge Warren was later elected 10

the position without opposition in 1990and 1994, making her the firsl African­American elected to a state level trial courtjudgeship in Arkansas. While havingstarted as a clerk for ajudge. Judge Warrenhas come full circle and now has her ownlaw clerk.

Justice John Fogelman, who also servedon the Arkansas Supreme Court duringthis time, recalled that Joyce WilliamsWarren's coming to work at the Court wastaken "as a matter of course; there was noatmosphere of opposition." Judge Warrennever thought in tem1S of being the firstAfrican-American clerk herself. Once shereached the court, she too found that shedid not experience any opposition or con-

tToversy. However, there was some degreeof confusion.

People were aware that Justice GeorgeRose Smith had hired Alma Williams, alsoan African-American, to begin clerking forhim in August 1977. Judge Warren relatesthat this caused a case of mistaken identi­ty because Justice Smith had actually hiredthe first African-American clerk, althoughJudge Warren was the first African­American 10 start serving as a law clerk.

Unlike Judge Warren, Ms. AlmaWilliams did not choose the law as an ini­tial career. She allended a Lillie Rock ele­mentary school and graduated fromDunbar High School. She had receivedher college degree in Alabama, but cumeback to Arkansas after graduation. Afterteaching school for almost eighteen years,she decided to return to school when herchildren were teenagers in high school.She had developed a background in civilrights issues and became interested in lawschool after she and her ex-husband filed alaw suit for open housing that went all theway to the United States Supreme COUI1.She appl ied for and was accepted into lawschool in 1973 as one of five African­American students. She graduated fromthe University of Arkansas at Little RockSchool of Law in May 1977.

"George Rose Smith felt this was hismission; he would take the lead for othersto follow," Ms. Williams recalls. Havingserved on the court for twenty-eight years,Justice Smith knew that he was strikingnew ground in choosing to hire AlmaWilliams when he offered her the clerkingjob in 1976. Ms. Williams recounts thatJustice Smith told her, "You will be thefirst black law clerk." Other law clerkswho worked at the court while AlmaWilliams was there remember that JusticeSmith was an exacting and detail-orientedjustice. According to Chief Clerk LeslieSteen, Justice George Rose Smith createdmany of the court'S complex operatingprocedures, which today enable the coul1to function better as a whole. He held hisown office and the entire court to highstandards. Indeed, Justice Smith's clerkswere physically located in his officeinstead of in the anteroom library used bythe other justices' clerks. Ms. Williamsrecalls that Justice Smith told her that heexpected thorough research, memoranda,and opinions; however, she went on toelaborate he expected no more of othersthan he expected of himself.

Attorney Dewey Fitzhugh workedbriefly with Alma Williams when he cameto work at the court with Justice GeorgeHoward in 1978. He recalls seeing herdi Iigently working on memoranda, andnotes that Justice Smith appeared to have agood relationship with her. At the time, hefelt that Justice Smith's confidence in Ms.Williams seemed to make the atmospheremore accepting towards him also. Mr.Fitzhugh recently reminisced, "I don'tknow that she knows it, but she did a lotfor me. I gained some strength and confi-

"Having served on the court

for twenty-eight years,

Justice Smith knew that he

was striking new ground in

choosing to hire Alma

Williams when he offered

her the job in 1976. Ms.

Williams recounts that

Justice Smith told her, 'You

will be the first black law

clerk.' Ms. Williams recalls

that Justice Smith told her

that he expected thorough

research, memoranda, and

opinions; however, she elab­

orates that he expected of

others no more than he

expected of himself."

dence in her presence. It meant a lot to meto see another African-American workingat the court at lhat time." He remembersfeeling that they were under additionalpressures to set a standard because theywere the only African-American lawclerks at the court.

After her clerking experience, Ms.Williams went to work for Entergy

Corporation, where she served as managerof community relations and special assis­tant to the vice-chairman of the corpora­tion. Today, she is recently retired aftereighteen years with Entergy. But it ishardly a relaxing retirement, since she iscurrently busy as a partner in a personneland consulting business with her son. Sheundertook the responsibility of being theexecutive coordinator of the fortiethanniversary of the Central High Schoolcrisis.

Reflecting on her time at the court, Ms.Williams remembers that a lot of peoplethought that Justice Smith would not actu­ally hire her, but he told her that "we needto do this."

Although her job with Justice Smithwas demanding, Ms. Williams describesher year of clerking for him as "a wonder­fu I experience."

Lyndon Johnson once noted, "Until jus­tice is blind to color, until education isunaware of race, until opportunity isunconcerned with the color of men's skins,emancipation will be a proclamation butnot a fact." It is, perhaps, ironic that it wasin Little Rock, the symbolic battlegroundfor school integration, that two outstand­ing women became the first African­American clerks to Arkansas' highestcourt, without any suggestion that theirhiring was out of the ordinary. Indeed, itwas not until this article was being pre­pared that Judge Warren even knew thatshe held such a place in Arkansas legalhistory.

Other African-Americans have sinceserved as clerks for the justices of thesupreme COUf!, as well as for judges on theArkansas Court of Appeals. Other distin­guished African-Americans - HaroldFlowers, George Howard, Jr., Andre Roar,Wendall Griffen, Ollie Neal, Perlesta A."Les" Hollingsworth, Richard Mays ­have served as justices or judges on thesecoul1S in the past 20 years. In all of theseinstances, the doors to the coun have beenopened willingly and these appointmentshave been made without the need for anyoutside intervention. It is in this vein lhatthe Arkansas bar musl continue in a spiritof openness because, as Justice Smith said,"we need to do this ... ·:·

l'all199i Ur ,lrkma,I,'\\Jrr 31

Official Directory of the Arkansas Bar Association"Your Blue Book of Attorneys - Since 1935"

Names, addresses and telephone numbers for virtually all of the legal community

The Table of Contents includes the following:

Ant.naa. Bar A.,oelationU S Govemment

Executive BranchLegislative Branch

U S SeNltor.U 5 Repr••entatlves

Judicial BranchU S Suprema CourtU 5 Courts of App"'1

Eighth Circuit (AR, LA, MN. MO. NE. NO, SO)U S Court of Appea', - Federal CircuitU S Court of Appaa's tor the Armed Forc••U S DI,trict Courts Jurl,dlctfon.U S DI.trict Courts

e.-tern District of Mans••We,tam DI,trict of Artansa.

U S BankNplcy CourtlE.,tem .. W.,tam DistrictsAUng O"'e..

U S Prob.tlon OfficeE..tam District of Arkan,..We,tem District of Arkan,..

U 5 Court of Fadera' ClaimsU 5 Court of Intamatloll8! Trad,US Tax Court

Oepartment of H..lth &. HUmlin Sarvlc•• Raglon ISDepartment 01 Interior

Bur.au of Indian Afhll,..Oepartment 01 Justice

AttonMiY GaneralAntItrust DlvtalonDrug Enforcement AdmlnlatrlltJon New OriNna OM.tonFede,..l Bureau 0' InwatlgationFede,..l Bureau 0' Prlso". South C.ntral AigionImmlgrlltlon " Nllturallzatlon Servtce East,rn FtlglonUS Attomer.0U S MIIr.hII • ServtceUS Tru.tee'. Offtce, Region 13

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N TS AND BOLTSDon't miss the annual "Bridging the

Gap" seminar which will be held at theALR Law chool in the Herschel

Friday Counroom ovember 13·15,1997. Come and learn everything younever learned in law school, particular­ly some practical aspecls of practicinglaw. Those of you licensed to practicefor two years or less, may register forIhe seminar for only $25.

As co-chair for the seminar, DaveHodges (501/374-2400) and JohnMyers (501/663-4700) have PUI togeth·er an impressive slate of speakersincluding Federal Court Judge BillWilson, Judge Wendell Griffen, H.T.Moore, John Everett, Sam Perrolli andBobby McDaniel.

One hair of Ihe course will be a sub·sl,antive overview covering areas suchas domestic relalions, personal injuryand workers' compensation. The sec­ond half will focus on Ihe proceduralaspect of practicing law and will coverdiscovery tools, circuit and municipalpractice and trial strategies.Approximately 15.5 hours of CLE areavailable.

The seminar will end with a cocktailpany al Juanita's at 5:00 on November15. Watch for the "Bridging the Gap"brochure in Ihemail or call theArkansas Bar Center at (501) 375­3957. We'll see you there!

WELCOMEI EW YO G LAWYERS

Congralulations 10 all of Ihe sur·vivors of lhe Arkansas Bar Exam!Those of you who plan 10 practice inArkansas are invited to become pan ofthe Young Lawyers Section of theArkansas Bar Association. You are a"young lawyer" for the first five yearsof practice or ulllil you lurn 36,whichever is later.

If you would like to become involvedin any of Ihe projects sponsored by theYoung Lawyers Seclion, contact any ofthe following committee chairpersons:

Disaster Relief: Baxler Sharp,870/734-4060; Hospice: JonannRoosevell, 501/376-2011; Comm·unications: Cindy Grace Thyer,870/932-4522; Mentor Program: ToddGreer, 501/376-2011 or Kathy Cloud,501/372-0800.

MENTOR PROGRAMThe mentor program is having its fall

kickoff at Juanita's at 5:00 p.m. onovember 15. If you are a young

lawyer and you would like to volunteerto be a "mentor" to law students al theFayeneville or Linle Rock campus,conlaCI Todd Greer, 501/376-2011 orKathy Cloud, 501/372-0800.

o THE MOVEFrank Arey, of Conway, Arkansas,

was appoinled to the Arkansas Coun ofAppeals by Governor Huckabee onMay 8, 1997, to finish the lerm of thelale Judge James Cooper.

Judge Arey served as Chief LegalCounsel 10 Governor Mike Huckabeefor a year before his appointment, andhas been active in the Young LawyersSection, serving on the ExecutiveCouncil from 1994 to 1997. While amember of the YLS, he panicipated inLaw Day, and co-chaired the BridgingIhe Gap Seminar in 1993 and 1994.

In discussing his appoinlment, JudgeArey said Ihe only drawback 10 joiningthe court was leaving GovernorHuckabee's office. In private practicein Brinkley, Little Rock, and Conway,1110s1 of Arey's appellate experiencewas before the 8th Circuit. Of theArkansas Coun of Appeals, Judge Areysaid, "I have been very impressed withhow hardworking and helpful all of thejudges and their staffs have been."

Judge Arey has spoken publiclyabout encouraging litiganls to requestoral arguments before the court. Heoffered this advice to young lawyersconsidering an appeal: "I would lellyoung lawyers not to quickly give up

the chance 10 talk 10 the coun abouttheir case. If they know it is not a novelsituation, or if the controlling authorityis clear, then maybe oral argument isunwise. But otherwise, it is a valuableand under-utilized tactic on appeaL"

HATS OFFTo Colli McKiever who staned a

general practice in Fayeneville April I,1997. To Jim Bradbury for his recentpannership at Barren & Deacon inJonesboro. To James A. Simpson, Jr.for making panner al Lighlle, Beebe,Rainey, Bell & Simpson in July, 1997.

BIRTHSCongratulations 10 AI Thomas, and

his wife, Sancy, on the binh of theirsecond child, Alison Anne, born May 6,1997; and to Ed Siaughler, and his wife,Sherry, on the binh of Iheir first child,Jackson Payne, on April 28, 1997.

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Shielding VolunteersFrom Tort Liability

Congress Expands the Safety Zoneby Frances Fendler Rosenzweig,

Professor of Law, University of Arkansas at Little Rock School of Law

Once upon a time, rhe manager of aUtrle League baseball team in NewJersey reassigned a IO-year-old play­er from shortslOp 10 the aLIIfield.While playing ,he outfield. ,he boywas stmek in the eye by a fly ball. Theboy's parellls sued the manager on lheground thar the manager "failed torecognize that the boy was a borninfielder." IStories such as these prompted the

enactment of the Volunteer Protection Actof 1997,2 which President Clinton signedinto law on June 18. The new Federal Actdelineates circumstances in which volun­teers of philanthropic or civic or govern­mental organizations are protected fromlort liability. It preempts inconsistent statelaws, except for state Jaws that providegreater protection for volunteers}

Congress' purpose in enacting theVolunteer Protection Act was to encouragethe volunteerism that is essential to theoperation of many social service agencies,educational institutions, and other non­profit organizations and governmentalentities. The Arkansas General Assemblywas motivated by similar concerns when itenacted analogous statutes protecting vol­unteers from tort liability--the ArkansasVolunteer Immunity Act4 and the State andLocal Government Volunteers Act 5 Thisarticle will discuss the new FederalVolunteer Protection Act first and then tumto its effect on Arkansas law.

It is important to note that the newFederal Act and this article focus on thepotential tort liability of volunteers. If avolunteer commits a tort which renders theorganization for which he was acting vic-

II He lrllllll li"er Fill 1m

ariously liable, the organization must lookto state law for relief,6 including state-lawdoctrines of charitable immunity7 and gov­ernmental immunity.8 Moreover, theFederal Act does not protect volunteersagainst liability to the organizations whichthey serve.9

The Volunteer Proleclion Act of 1997The "volunteer" protected by the new

Act is defined as "an individual performingservices for a nonprofit organization or agovernmental entity who does not receive(A) compensation...or (B) any other thingof value in lieu of compensation. in excessof 5500 per year..." To be protected by theAct, the volunteer must be acting for a"nonprofit organization" or for a "govern­mental entity." "Nonprofit organization" isdefined as any tax-exempt organizationdescribed in section 501(c) (3) of theInternal Revenue Code or, broadly speak­ing, any other bona fide philanthropic orCIVIC nonprofit organization. to"Governmental entity" is not defined. Forthe sake of clarity, from now on the ternl"organization" will be used to mean both"nonprofit organization" and "governmen­tal enlity."

The broad immunity granted by thenew Act is found in section 4(a), whichprovides. with certain exceptions, that "novolunteer of [an organization] shall beliable for harm caused by an act or omis­sion of the volunteer on behalf of the orga­nization" if the prescribed conditions aremet. These conditions are:(I) The volunteer must have been actingwithin the scope of his responsibilities inthe organization at the time of his act or

omission.(2) If appropriate or required, the volun­teer was properly licensed. certified, orauthorized to perform the work he did.(3) The harm was caused by no more thanordinary negligence. The volunteer is notimmune from liability for harm caused "bywillful or criminal misconduct, gross neg­ligence, reckless misconduct, or a con­scious, flagrant indifference t.o the rights orsafety of the individual harmed by the vol­unteer." I1(4) The harm was not caused by the vol­unteer's operation of a motor vehicle. 12

Even if a volunteer is not immune fromliability under section 4,13 if he was actingwithin the scope of his responsibilities tothe organization, the Act restricts the avail­ability of punitive damages and abolishesjoint and several liability for noneconomiclosses. Punitive damages are not availableagainst a volunteer unless the plaintiffproves by "clear and convincing evidence"that the harm was proximately caused bythe volunteer's "willful or criminal mis­conduct, or a conscious, nagrant indiffer­ence to the rights or safety of the individ­ual harmed."14

With respect to joint and several liabil­ity for "noneconomic loss," section 5 pro­vides that a volunteer defendant "shall beliable only for the amount of noneconomicloss allocated to that defendant in directproportion to the percemage of responsi­bility of that defendant...for the harm .. .',t5The trier of fact is required to detenninethe volunteer defendant's percentage ofresponsibility for the plaintiff's harm16

"Noneconomic loss" is defined to include"losses for physical and emotional pain,

suffering, inconvenience, physical impair­ment, mental anguish, disfigurement, lossof enjoyment of life...and all other nonpe­cuniary losses of any kind or nature." 17Noneconomic loss is contrasted to "eco­nomic loss," which means pecuniary loss,including lost earnings and other employ­ment benefits, medical expenses, replace­ment services loss, and loss of business oremployment opportunities. t8

The New Federal Act'sEffect on Arkansas Law

The primary Arkansas statutes con­cerning volunteer liability--the ArkansasVolunteer Immunity Act l9 and the Stateand Local Government Volunteers Act20-­set up a peculiar scheme. They grant thevolunteer immunity against liability forordinary negligence, but only if there is noinsurance coverage. If there is insurance,the volunteer is liable for his conduct, buthis liability is limited to the amount of theinsurance coverage. The effect is to permitan injured person to sue the negligent vol­unteer and, in effect, to recover damagefrom the insurance company.

For example, the Volunteer ImmunityAct provides that a "qualified volunteer" isprotected from liability except "[w]herethe qualified volunteer is covered by a pol­icy of insurance, in which case liability forordinary negligence is limited to theamount of the coverage provided.....21

Under the State and Local GovernmentVolunteers Act, "Volunteers in state ser­vice may enjoy the protection of the state'ssovereign immunity to the same extent aspaid staff.',22 The "paid staff' are"immune from liability and from suit,excepr 10 rhe exreflf rhar rhey may be cov·ered by liability insurance, for damagesfor acts or omissions, occurring within thecourse and scope of their employment.,,23

It is likely that these "liable to theextent of insurance" provisions are pre­empted by the Federal Act. The FederalAct preempts state laws "to the extent thatsuch laws are inconsistent with this Act,except that this Act shall not preempt anyState law that provides additional protec­tion from liability relating to vol un­leers .. .',24 The Arkansas scheme of deny­ing immunity to volunteers who haveinsurance is surely inconsistent with theFederal Act's grant of immunity to volun­teers without regard to whether they haveinsurance. Similarly, Arkansas' denial ofimmunity to insured volunteers does not

provide those volunteers "additional pro­tection from liability." While the Arkansasscheme on its face protects volunteersfrom liability beyond the amount of theirinsurance coverage, those who are suedwill suffer the inconvenience of beingforced to answer and defend the suit, andwill likely suffer uncompensated econom­ic losses in the form of time missed fromwork25

The Federal Act changes the law relat­ing to volunteer liability in Arkansas inother, less fundamental ways. The moresignificant of these changes include:(1) Expanding the set of volunteers whoare protected against liability;26(2) Providing immunity against a largerclass of potential plaintiffs;27 and(3) Raising the standard of proof for puni­tive damages to clear and convincing evi­dence28

ConclusionThe new Federal Act, by preempting

much of Arkansas law on the subject, sim­plifies and broadens the law governing tortliability of volunteers. It answers manyquestions which the Arkansas statutesleave unanswered--including the questionwhether a lawyer serving as a director of anonprofit philanthropic corporation is pro­tected against liability for ordinary negli­gence to persons harmed by the lawyer'sadvice to the corporation.29 Assumingthat the new Act passes constitutionalmuster,30 it should have the effect thatCongress intended, to encourage volunteerservice.•:.

ENDNOTESI. A Bill Entitled the "VolunteerProtection Act of 1987": Hearings Oil S.929 Before rhe Subcomm. on. Caurrs andAdministrarive Practice of the SenareComlll. all the Judiciary, 100th Congo 177(1989) (statement of Dr. Creighton J. Hale,president and chief executive officer ofLittle League Baseball), microfomled onSup. Docs. O. Y4.J89/2:5.hrg.1 00-1 074(Congressional Info. Serv.).2. Pub. L. No. 105-19, III Stat. 218 (to becodified al 42 V.S.c. §§ 14501-14505).3. However, the Act pennit states, byenacling specified legislation, to "opt out"of its coverage with respect to any civilaction against a volunteer in which all par­ties are citizens of the state. Jd. § 3(b). Inaddition, the Act permits states to make

see "Shield ing" page 36

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17. Id. § 6 (3).18. Id. § 6 (I). Economic losses arerecoverable only to the extent allowedunder applicable state law. Id.19. Ark. Code Ann. §§ 16-6-101 to -105(1994), ome"ded by 1997 Ark. Acts 276.20. Ark.CodeAnn.§§21-13-101 to-III( 1996).21. Id. § 16-6-105(1)(1994).22. Id. § 21-13-108(b).23. Id. § 19-10-305(a) (1994) (emphasisadded). The tonured history lying behind[his statute is described in Lisa B. Tobin.

Ole, Bly v. Young. Beaulieu v. Gray, andCarter v. Bush: The Arkansas StateEmployee Immlllliry Trilagy, 41 Ark. L.Rev. 893 (1988).24. Volunteer Protection Act § 3 (a).25. The Act would, however, permitArkansas 10 require, as a condition of lim­iting volunteers liability. that the nonprof­it organization or governmental entity pro­vide insurance or some other financiallysecure source of recovery for persons whoare hanned by a volunteer's actions. Thepoint is 10 guarantee that the organization,not the volunteer, will be able to pay forlosses. Id. § 4 (d) (4).26. The Federal Act extends protection tovolunteers serving not only non-profitorganizalions Ihal are tax exempt undersection 501 (c)(3) of the Internal RevenueCode, but also to "any not-for-profit orga­nization which is organized and conductedfor public benefit and operated primarilyfor charitable. civic, educational. religious,welfare or health purposes" and whichdoes nor commit hate crimes. CompareVolumeer Protection Act § 6 (4) (b) wirltArk. Code Ann. § 16-6-103 (2) (1994).The legislative history states. by way ofexample. that the new Act's protectionextends to "trade and professional associa­tions and other business leagues which areexempt from taxation under seclion 501(c) (6) of the Internal Revenue Code." SeeHouse Report, supra note 13.27. The Arkansas Volunteer Immunity Actrestricts the class of potential plaintiffs;the plaintiff against whom protection isgranted is "one who is a participant in. ora recipient. consumer, or user of, the ser­vices or benefits of a volumeer...'· Ark.Code Ann. § 16-6-105 (I) (1994). TheFederal Act contains no such restriction.By way of illustration, if the plaintiff waswalking beside a golf course when a Boy'sClub volunteer golf instructor negligently

see "Shielding" page 37

ereign immunity of state of Arkansas);Ark. Code Ann. § 21-9-301 (1996) (politi­cal subdivisions of state granted immunityfrom liability except to the extent there isliability insurance coverage); see alsoArk. Code Ann. § 23-79-210 (1992)(direct action statute).9. Volunteer Protection Act § 4(b).10. Id. § 6(4). To qualify as a "nonprofitorganization," the organization cannot"practice any aClion which constitutes ahate crime referred to in subsection (b)(I)of the first section of the Hate CrimeStatistics Act (28 .S.c. 534 note)." Id.II. Id. § 4(a)(4).12. Id. The Federal Act goes on to specif­ically exempt from its proteclion miscon­duct (I) that constitutes a crime of vio­lence or act of international lerrorism forwhich the volunteer has been criminallyconvicted: (2) that constitutes a "hatecrime"; (3) that involve a exual offensefor which the volunteer has been criminal­ly convicted: (4) that involves misconductfor which the volunteer has been found tohave violaled a Federal or State civil rightslaw; or (5) where the volunteer was underthe innuence of alcohol or drugs at thetime of the misconduct. hi. § 4 (f).13. Volunteers who are not immune fromliability are those who were guilty of grossnegligence or worse. or who caused dam­age by driving a motor vehicle, or whowere not properly licensed to perform theactivity which caused the harm. Repon ofthe House Comminee on the Judiciary,Volunteer Protection Act of 1997, 105thCong., 1st Sess., H.R. Rep. No. 105-101,dissenting views <http://frwebgate.acc­ess.gpo.gov/cg...;/diskb/wais/data/10530

njLrepons> (hereinafter "House Repon").14. Volunteer Protection Act § 4(e).15. Id. § 5 (b) (I).16. Id. § 5 (b)(2).

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"Shielding"volunteer immunity subject to certain con­ditions, e.g., requiring that organizationsprovide a financially secure source ofrecovery for persons who might be injuredby a volunteer's actions. Id. § 4(d).4. Ark. Code Ann. §§ 16-6-101 to -105(1994), amellded by 1997 Ark. Acts 276.5. Ark. Code Ann. §§ 21-13-101 to -III(1996).

Arkansas has a hodge-podge of otherstatutes granting volunteers immunityfrom liability in narrowly defined circum­stances. E.g., Ark. Code Ann. § 8-7-101(1993) (granting immunity to volunteerswho assist 31 a discharge or clean up ofhazardous materials); Ark. Code Ann. §12-75-128 (1995) (granting immunity tovolunteer emergency service workersunder the Arkansas Emergency ServicesAct of 1973): Ark. Code Ann. § 12-83-104(1995) (granting immunity to emergencyservices volunteers under the EmergencyVolunteer Reserve Act of 1995): Ark.Code Ann. §§ 16-5-101 to -102 (1994)(granting immunity to volunteer fire fight­ers); Ark. Code Ann. §§ 16-120-101 to­104 (Supp. 1995) (granting directors ofnonprofit corporations and members ofgovernmental boards and commissionsimmunity from vicarious liabilily): Ark.Code Ann. § 17-95-101 (1995) (the "GoodSamaritan" law). Because these laws arenol designed to encourage volunteerismacross a broad spectrum of philanthropicand governmental programs, they are notspecifically addressed in this anicle.6. Volunteer Protection Act § 4(c).7. See, e.g., Masterson v. Stambuck, 321Ark. 391,400-03,902 S.W.2d 803, 809-11(1995); Williams v. Jefferson HospitalAss'n, 246 Ark. 1231. 442 S.W.2d 243(1969).8. See, e.g., Ark. Const. an. 5. § 20 (sov-

II Ut IrullJl La~}tr I'allilli

Product Review"Shielding"

hit a golf ball which struck and injured theplaintiff, the volunteer would not be pro­tected under the Arkansas Act, but ~ nowprotected by the new Federal Act.28. See National Bank of Commerce v.McNeill Trucking Co., 309 Ark. 80, 91-92,828 S.W.2d 584, 589-90 (1992) (Dudley,J., concurring) (arguing that Arkansasshould adopt clear and convincing stan­dard of proof for award of punitive dam­ages.)29. See Ark. Code Ann. § 16-6-105(4)(1994). Under the Federal Act, the answeris "yes"; the Federal Act grants protectionto all volunteers that satisfy the standardsfor protection, without treating lawyers (orany other class of people) differently. SeeVolunteer Protection Act §§ 4-5, 6 (6).30. See generally City of Boerne v. Flores,65 U.S.L.w. 4612 (June 25,1997); UnitedStates v. Lopez, 514 U.S. 549 (1995).

Frances Fendler Rosenzweig is a profes­sor of law at the Unl\'ersity ofArkansasar Lilrle Rock School of Law.

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Charlie Owen,Gill Law Firm

"With respect to computerized legalresearch tools, Arkansas lawyers have sev­eral options available to them. My criteriafor selecting a vendor involved the follow­ing factors: cost, coverage, ease of use,updating capabilities and technical assis­tance. And with all things being equal, [prefer to do business with an Arkansascompany. Thus, my initial decision tosubscribe to LOIS Professional Library,Arkansas Series was an easy one and thatsubscription has been renewed for the lastthree years because: LOIS provides themost comprehensive coverage for the dol­lar including Internet access with no hid­den costs; LOIS is user-friendly and pro­vides chronologically accomplished userssuch as myself an easy transition fromhard-bound book research to electronicretrieval; LOIS technical assistance hasbeen prompt and good for the few times Ihave needed it.

Kudos to Kyle Parker and his group forbeing an innovative leader in this area ofcomputer technology!"

James L. Moore, IfIMichael J. Dennis

David L. SimsR. Scott MorganJeffrey H. Dixon

Cary E. YoungJames C. Moser, Jr.

John P. Talbot

has become an associate of the finn

F.G. Bridges (1866-1959)Frank G. Bridges, Jr. (1906-1973)Paul B. YoungStephen A. MatthewsTed N. DrakeJoseph A. StrodeJack A. McNuilYTerry F. Wynne

John I~ Talbot

18 ne lrklllas LIM)er FIIII!!1

Committee & Section News

"Committee & Section News" is anupdate report imended 10 inform themembers of the Association of currentactivity. YOllr volunteers are workinghard for yOIl and Ihe Association.Please note: activity reported has /lotnecessarily been recommended 10 theExecutive Council as yet.

TASK FORCE ON LEGALRESEARCH, PUBLICATIONS &TECHNOLOGYby Slark Ligon

In June, President-Elecl JackMcNulty appointed this new TaskForce and charged it with the responsi­bility of evaluating the Association'soptions with regard to its future rela­tionships with companies in the busi­ness of legal research, publications andtechnology. The Task Force includesrepresentatives from the Association'sFinance Committee, ElectronicInfonnation Committee, and EditorialBoard for Systems and Handbooks.

As a substantial and growing pub­lisher itself, through its "Handbooks"and "Systems," the Association mustprepare now to meet the future needs ofits members in an era of new and rapid­ly-changing technologies, especially inCD-ROM and Internet products. Inmid-1995 the Association entered into afive year agreement with LOIS, Inc. forIhe exclusive righl for LOlS to publishCD-ROM versions of the Handbooksand Systems. This relationship, alongwith proposals from other vendors suchas LEXJS-NEXIS and the West Group,is being reviewed by the Task Force.

Financial pressures on theAssociation will continue to increase asthe needs for new and expanded ser­vices meet the realities of dues andmembership growth limits. Severalother stat.e associations have recentlyrestructured their publications in amanner that has led to substantialincrease in income stream and moreand better producI offerings. Theirefforts are being studied by your TaskForee.

The Task Force members, MarkAllison, Lynn Foster, William A.Martin, Margaret Newton, Charles C.Owen, Jacqueline Wright, StanleyRauls, George Plastiras, and ChairSlark Ligon, all of Little Rock, Judge

Leon Jamison of Pine Bluff, MurrayClaycomb of Warren, and Associationstaff Don Hollingsworth, Judith Grayand Adrienne Brietzke have alreadymel several times. In addition 10

reviewing vendor proposals and testingproducts on an individual basis, theTask Force is designing what in effectwill be an outline for a request for pro­posals to vendors interest.ed in a rela­lionship with the Association Ihal willbeller meet our members needs. If anyAssociation member has an idea oropinion for the Task Force to consider,please address it to Executive DirectorDon Hollingsworth at the Associationoffice.

PUBLIC INFORMATIONCOMMITIEEby Dent Gilchel, Chair

Our Committee has divided intothree subcommittees, with theBrochures and Pamphlets subcommit­lee chaired by Marcia Mcivor, theMedia Relations subcommittee chairedby Stacey DeWitt, and the SpecialProjects subcommittee chaired by JohnTull.

The Committee, along wilh severalolher invited participants, recently helda three-hour brainstonning session atUALR's Baum Decision SupportCenter. From this session there wasdeveloped a prioritized list of recom­mendations from the Committee,regarding the Association's publicinfonnalion and public relations pro­grams.

Our Media Relations Subcommitteechair Slacey DeWitt has drafled aMedia Relalions Plan for theAssociation. After the plan is reviewedand approved by the Committee, il willbe recommended to the Association.

PARALEGAL COMMITIEEby Jan Dewoody Scussel, Chair

The Paralegal Commillee has devel­oped a proposed rule relating to the uti­lization of legal assistants/paralegals.Highlights of the proposed rule includeselling minimum qualifications whichmust be met before an individual can bedesignated as a legal assistant, definingthe parameters within which paralegalsmay be ulilized, and delineating ethicalguidelines applicable 10 an attorney's

use of legal assistants. It is hoped thatimplementation of this proposed rulewill help in addressing and controllingIhe unauthorized practice of law as wellas related issues of professional mis­conduct. The Committee's ultimategoal is 10 present the rule to IheSupreme Court for a per curiam orderwilh approval of the House ofDelegates. If adopted, Arkansas wouldjoin Ihe over 30 slates Ihal have alreadyimplemented rules governing the activ­ities of paralegals/legal assistants.

A copy of the proposed rule can berequested by conlacting Ihe ArkansasBar Association office al 1-800-609­5668 or Jan DeWoody Scussel,Paralegal Committee Char, P.O. Box8064, Pine Bluff, Arkansas, 1-870-534­0667. The Committee welcomes anycomments from association membersregarding the issues addressed in itsproposed rule.•:.

Adrienne Brietzke

Adrienne Brietzke is the new

Direclor of Marketing and Special

Programs for the Arkansas Bar

Association as well as Ihe Editor for

The Arkansas Lawyer, The

Newsbllllelin and The Membership

Directory. Adrienne fonnerly worked

wilh the Arkansas Trial Lawyers

Association.

fall 1997 The Mkmas 1,lwier 19

have to do with

Rule 1.15 of Arkansas'Model Rules of ProfessionalConduct (hereafter, MRPC)requires lawyers to hold theirclient trust funds in intereSl­bearing accounts, either forthe benefit of the individualclient or the Arkansas IOLTAFoundation.

The Supreme Court ofArkansas created the ArkansasIOLTA program in 1984, InRe IOLTA, 283 Ark. 252, 675S.W.2d 335 (1984), to providefunds for legal services to thepoor, projects that improve theadministration of justice. andlegal education. nder theprogram, interest is paid onnominal or short-term trustdeposits held in a lawyer's orlaw firm's client trust account,with the interest remitteddirectly by the financial insti-tution to the Arkansas IOLTA Foundation.In October of 1994, the Arkansas SupremeCourt modified Arkansas' MRPC 1.15 tomake the IOLTA program mandatory forlawyers who handle qualifying funds.Q: Does Rule 1.15 of Arkansas' MRPCapply 10 all lawyers licensed 10 praclicelaw in Arkansas?A: Yes. IJyou are licensed to practice lawin Arkansas, you are required to complywith the Model Rules of ProfessionalConduct including Rule 1.15. However,that does not mean that all licensedlawyers must have a client trust account.Some lawyers will be exempt from main­taining a client trust account by virtue ofthe nature of their practice, the type ofposition or public office they hold, orbecause their law office is physicallylocated in another state.Q: Who must mai1l1oin a client tntSt accowu?A: Arkansas lawyers, or their firms, whoreceive, maintain, or disburse qualifyingfunds. Qualifying funds are funds belong­ing to a client or third person that thelawyer has in her possession in connectionwith a repre entation. To detemline if thefunds should be placed in a client trustaccount, ask yourself whether you cantreat those funds, when received, as yourown. If the answer is no, then your oblig­ation is to place them in a client trustaccount.Q: What duries do I have wilh respect 10

retemion of cliem funds?

IOLTA:What is It?

What does it

my clients'money?

by Lisa Melton

A: Arkansas' MRPC require an altomeyto hold clients ' funds in an account sepa­rate from the altomey's or firm's operatingaccount. Rule 1.15 requires thaI all fundsbe held at interest, with the interestpayable either to the client or to the IOLTAFoundation. To comply with their ethicalobligation, lawyers must place clients'funds in the lawyer's client trust accountuntil distribution. For client deposits thatare large enough or to be held for a longenough period of time to warrant the costof administering an individual account,lawyers are obligated to set up a separateinterest-bearing account for the benefit ofthe individual client. Should the clientchoose not to be paid interest, then thefunds should be placed in the IOLTAaccount discussed below. Generally, how­ever, the deposits are not large enough orheld long enough to generate interest thatwould offset the costs of maintaining aseparate account. Consequently, attorneysroutinely pool clients' funds in a singleclient trust account. either the attorneynor the client can receive interest, so theinterest is paid to the Arkansas IOLTAFoundation to support law-related, charit­ble and educational activities. Thisaccount is commonly referred to as thelawyer's IOLTA account.Q: May I place Illy clielllS' funds ill allinterest-bearing aCCOU111 and keep theimerest?A: No. Arkansas' MRPC 1.15 prohibits a

lawyer from deriving any bene­fit from clients' property.Q: Does participation in theprogram depril'e my cliems oftheir imerest money?A: o. The program was notmeant to utilize interest moneyfrom all client trust deposits ­only those nominal in amountor to be held for a short periodof time. a client is deprivedof any practicable incomeopportunity. If these depositswere placed in separate, inter-est-bearing accounts, theadministrative costs to the lawfirm and the service charges ofthe financial institution . cou­pled with the resulting tax lia­bility to the client - would morethan offset any income earned.Q: Call lawyers slill deposilindividual diem funds imo sep­arate illlerest·bearing accounts

for Ihe bellefil oflhe clienl?A: Lawyers can and should continue toestablish separate, interest·bearingaccounts for individual clients' fundswhere the Slim is large enough or when thetime of the deposit is of sufficient durationto justify the cost of opening, closing andadministering the account. Any interestthat accrues belongs to the client. Factorsto consider include the amount of interestwhich the funds would earn during theperiod they are expected to be held, andthe predicted cost of establishing andadministering a separate account for Lhefunds (including the cost of the law firm'sservices).Q: Where should a lawyer draw the linebetween which funds call be deposi/ed ill aseparate 'r"st accoulll for an individualclient and which fimds should be deposit­ed ill lite firm's IOLTA accol/III?A: Whether the amount of interest anaccount will generate justifies the expenseof opening and maintaining a separateaccount for the client is a detenninationentirely within the lawyer's discretion.TI,ere are no established guidelines.Q: Wltal if my ballk refuses fa opell allIOLTA aCCOl/lIIJor my praclice?A: Should a lawyer's bank refuse to offeran IOLTA account, then the allomey willneed to move his or her trust account to abank that does offer IOLTA accoulllS.Q: What if my cliem truSf accoum is rarelyl/sed alld typically Itas a small balance?

·10 Ue IrulwlJMjrr rail 1m

A: Every lawyer is required to establishhis or her c1ien! trust account as an IOLTAaccount. However, if the account losesmoney because the interest earned is lessthan the reasonable fees and chargesassessed, then the IOLTA Board may,either in response to a request or on itsown, exempt the lawyer from maintainingan IOLTA account. An exemption is sub­ject to periodic review.Q: Do I have 10 lIotify my eliellls Ihallheirfllllds wil/ be placed ill olllOLTA accolIlII?A: The Arkansas Supreme Court requiresthat clients be given an opportunity toknow about (OLTA. To that end, theFoundation suppl ies each law firm withnotice that must be posted in a conspicu­ous place in your law office.Q: What do I have 10 do 10 comply wilhRule 1.15?A: Contact the Arkansas IOLTAFoundation for the proper form to set upyour IOLTA account. Use the account inthe manner required by Rule 1.15, andreturn your executed IOLTA compliancestatement along with your annual fees tomaintain your Arkansas law license.Q: Hall' is Iile program ellforced?A: Arkansas lawyers must certify annual­ly that they have complied with Rule 1.15.If a lawyer or law firm fails to comply withRule 1.15. the lawyer will be referred tothe Supreme Court Committee onProfessional Conduct for whatever actionthe Committee deems appropriate.·:·Lisa Meltoll is the Execwive Director ofIOLTA.

Presidellt's ReportContinued from Page 3

of professional ethics; 3) it is alsorequired that a request include a concisememorandum setting forth the request­ing individual's own research and con­clusions conceming the ethical questionsinvolved; and 4) there must also be astatement in the request that the matter isnot the subject of a pending disciplinaryproceeding.

All of the advisory ethics opinionsissued by the Committee are published in"The Arkansas Lawyer" or other publica­tions of the Arkansas Bar Association.The two most recent opinions were sum­marized in the last AssociationNewsBulletin. The summaries, as wellas the opinions themselves, do not dis­close the name of the attorney whorequested the opinion.

As opinions of the Arkattsas BarAssociation, these advisory opinions willprovide helpful guidance to our mem­bers. However, it must be recognizedthat the opinions are advisory only andsince they are not opinions of theArkansa Supreme Court, they are notlegally binding interpretations of theArkansas Model Rules of ProfessionalConduct.

Anyone interested in receiving a copyof the procedures which govern theissuance of the opinions should contactour Executive Direclor, DonHollingsworth.•:.

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The Lawyer disciplinary actiolls are writ·ten alld provided by file Supreme Court ofArkansas' Commiuee 0" ProfessionalCondllct.

Mr. Jeffrey H. KearneyPine Bluff, Arkansas

A letter of caution was issued to JeffreyH. Kearney for lhe violation of ModelRules 1.3, 3.4(c) and 8.4(d) based upon lhePer Curiam complaint on appellant JamesHollis Guss. The letter of caution wafiled with lhe Clerk on July I, 1997. TheseRules state. in pan, that a lawyer shall actwith reasonable diligence and promptnessin representing a client: a lawyer shall notknowingly disobey an obligalion under therules of a tribunal excepl for an openrefusal based on an assertion that no validobligation exists; and, a lawyer shall notengage in conduct that is prejudicial 10 theadministration of justice.

As altorney for Appellant James HollisGuss, Kearney limely filed a nOlice ofappeal from lhe denial of a petition forpost-conviction relief pursuant to Rule 37.On September 16, 1996, a mOl ion for ruleon the clerk was granted and he was givenuntil October 26, 1996. 10 file a brief.Subsequently, an extension to ovember2, 1996, was given. On December 23,1996. the appeal wa dismissed for failure10 file a brief. On December 26, Kearneytendered a brief contemporaneously withthe filing of the motion for reconsiderationof dismissal and for filing the brief oul oflime. The motion was granted and a showcause order entered. Kearney appearedand entered a guilty plea to the conlemptcitation and accepted full responsibilityfor failure to limely file lhe brief. Kearneypresented mitigation evidence and told theCourt of his intention to implement cor­reclive action by personally calendaringthe deadlines in his law praclice. TheCoun fined him $250 for his conducl inthis appeal.

Mr. David 1'. HenryLittle Rock, Arkansas

A letter of reprimand was issued toDavid P. Henry for the violation of ModelRules 1.4(a), 1.5(c) and 1.15(b) upon thecomplainl filed by George T. Gray. The

It Hr Irhllil Lllljlr rail 1!Ii

lawyer disciplinary actions

leller of reprimand was filed with lheClerk on July 18. 1997. These Rules stale,in pan, thai a lawyer shall keep a clientreasonably informed about the status of amailer and promptly comply with reason­able requests for information; a contingentfee agreement shall be in wriling and shallstale the melhod by which lhe fee is 10 bedeterm ined, and percenlages lhat shallaccrue to lhe lawyer, the lawyer shall pro­vide the client with a written statementslaling lhe outcome of the malter and, ifthere is a recovery, showing the remittance10 the client and the method of its delermi­nation: and, upon receiving funds in whicha client has an interest, a lawyer shallpromptly nOlify the clienl and deliver anyfunds that the client is entitled to receiveand, upon request by the client or thirdperson, shall promptly render a fullaccounting regarding such propeny.

Dr. Gray and his wife hired Henry 10

represent them in a lawsuit against Dr.Barbara Holmes. The lawsuit involved abreach of contract in a real estate matter.He was paid a relainer of $1, 100. The feeagreement was for Henry to receive 40%of any recovery after he relUmed theretainer to Dr. Gray. This agreement wasnever reduced to written fonn. Followinga jury lrial on OClober 4. 1994, Dr. andMrs. Gray were awarded damages in theamount of $4,786. The wrillen Judgmenlwas fi led with the Circuit Clerk onOclober 24, 1994. On December 12,1994, Henry mailed Dr. Gray a trustaccounl check in the amount of $1,246.40.From the dale of lhal payment until lhedate of Dr. Gray's affidavit, which was

ovember 19, 1996, Henry provided nofunher payments to Dr. Gray. Dr. Graymade repeated requesls for Henry to pro­vide him with an accounting of fundsreceived. Henry did not do sO. Dr. Grayretained another attorney to assist him inrecovering any funds from Henry. Henryadvised Dr. Gray's counsel in June of 1996that he would provide lhe funds he hadreceived to him along with a letter ofexplanalion. He did not do so. Dr. Grayalso learned that a Satisfaction ofJudgmenl had already been filed as to lhisJudgment. The Satisfaclion selS OUI thatthe Judgment had been paid in full on orbefore OClober 15, 1995, a full year beforeDr. Gray executed his affidavit of com-

plaint.Henry's response began with an

acknowledgment of the facts concerningthe trial and entry of judgment as stated inDr. Gray's affidavil of complaint. Henryexplained that he was injured in an auto­mobile accidenl on December 18, 1994,which caused him to be basically inactivefor 90 days. The health problem did notresolve itself until after a hospitalization inthe fall of 1995. During this time, heassened that he relied heavily on a formersecretary/office manager for various officefunctions. Henry stated Ihal he was notaware that any payments were received onthe judgment nor Ihal any funds were dueto Dr. Gray. Funher, according 10 Henry.after being contacted by Dr. Gray's newcounsel, he became aware thaI Dr. Graywas concerned about other payments onlhe judgment. Subsequent therelo, Henryexamined the file and checking accountsand learned lhat there was indeed a prob­lem. He averred that he sent a check to Dr.Gray's new counsel on July 8,1996, in lheamounl of $2,582.28. He was nol awarethat it had not been received until hereceived Dr. Gray's affidavit of complaint.He asserted that he had since sent a newcheck. He expressed his underslanding ofthe seriousne sof this matter as well as hisresponsibility for the mailer. He addedthat there was no wrongful intent or pur­poseful act involved. He explained andjustified the lack of a wrinen fee contracton the grounds that the agreement was nota "pure" contingent fee arrangement.

Mr. David P. HenryLittle Rock, Arkansas

A leller of caution was issued to Mr. DavidP. Henry for violation of Model Rules1.2(a), 1.3, 1.4(a) and 1.4(b) upon thecomplaint by Richard M. Lincks. The let­ter of caution was filed with the Clerk onJuly 18, 1997. These Rules state, in pan,that a lawyer shall abide by a client's deci­sions concerning the objectives of repre­semalion, and shall consult wilh the clientas 10 the means by which they arc to bepursued; shall act with reasonable dili­gence and promptness in representing acI ient; shall keep a cl ient reasonabl yinfonned about the status of a matter andpromptly comply wilh reasonable requests

for infomlalion; and, shall explain a mailer10 the extent reasonably necessary 10 per­mit lhe clienl to make informed decisionsregarding the representation.

Mr. and Mrs. Lincks were representedby Henry when a Judgment was filed ofrecord again I lhem in Pulaski CountyChancery Coun on May 28, 1996. TheJudgment was the result of lwo day oftrial. The lrial began in September of 1995and concluded wilh one day of testimonyand evidence in January of 1996. TheCourt's initial decision was to deny theclaims of his clients and those of theopposing party. However, after posl-trialbriefs were filed, the court decided lhatHenry's clients were indebted to theopposing party. The information andrecords provided by Mr. and Mrs. LinckseSlablish thai the precedenl for thisJudgment was sent to Henry by opposingcounsel on or aboul April 15, 1996. Ahearing was set for May 28, 1996, becausethere was some indication thai he intendedto file a leller of objection 10 the Decree.

lawyer disciplinary actions

His signawre does not appear on theDecree so it appears he was nol present atthe hearing on May 28, 1996. AJJ of thepost-trial activity look place with no noticeto Mr. and Mrs. Lincks. They did nOl learnof lhe filed Decree until June 13, 1996. Hedid nol advise Mr. and Mrs. Lincks of theDecree, rather they were infonned of itthrough service of a Writ of Garnishment.On lhe day thai they received lhe Writ, Mr.and Mrs. Lincks lelephoned him, faxedhim a copy of the Wril, requested anobjection be filed 10 the Writ, and direcledthat an appeal be filed. Henry took noimmediate action as Mr. and Mrs. Lincksrequested. The Olice of Appeal was nolfiled by him until afler the garnishmenlwas paid and the Satisfaclion of Judgmenlhad been enlered of record. Subsequent 10

the Satisfaclion of Judgment being filed,he filed an Applicalion for Stay ofJudgment. As the opposing party's coun­sel pointed out in his response to hisApplicalion, the requeS! was moot.

In his response 10 the Committee,

Henry began by acknowledging represen­tation of Mr. and Mrs. Lincks. He alsoprovided information concerning pre­judgment mailers. In the information pro­vided by him, lhere is an explanation thatthe trial was not complel.ed duringSeptember of 1995 so the panies wererequired to return in January of 1996 tocomplete laking evidence. The Chancellorinitially denied the claims of both panies,from the bench. However, following sub­mission of post-trial briefs, the Chancellorchanged his decision, and ruled againslMr. and Mrs. Lincks, finding them liablefor a certain amount. According to Henry,M.T. and Mrs. Lincks' reaction wasextreme. He acknowledged thai theywanted 10 appeal. He asserted that henever felt an appeal would be fruitful. Itwas also his assertion lhal he did nOl havean objeclion to the precedent for Decree,but he did requeS! more time beforeapproving Ihe Decree because his clientswere so upset. Henry stated that he did nOIreceive a copy of the Decree until after the

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savings account had been garnished.Again. he stated that he counseled Mr. andMrs. Lincks against pursuing an appeal.He was not aware that Sati faction ofJudgment had been filed the day prior tothe Notice of Appeal that he filed. Funher,according to him, everything Mr. and Mrs.Lincks wanted him to do was done withthe objectives of representation beingaccomplished. He also averred that everyaction was taken with reasonable dili­gence. As for his communication with Mr.and Mrs. Lincks, he stated that they werewell informed and he did everything in hispower to fully advise and counsel them.

Mr. Michael A. Beltranilillie Rock, AR

A leiter of suspension was issued (0

Michael A. Beltrani for violation of ModelRules 1.3 and 1.I6(d) upon the complaintof Ida V. Foley. The leller of suspensionwas filed with the Clerk on August 14,1997. These Rules state, in pan, that alawyer shall act with reasonable diligenceand promptness in representing a client;and, upon tennination of representation,an allomey shall take teps to the extentreasonably practicable to protect theclient's interest, such as giving reasonablenotice to the client, aHowing time foremployment of other counsel, surrender­ing papers and propeny to which the clientis entitled and refunding any advancedpayment of fee that has not been earned.

Mrs. Foley slated that on or aboutAugu t 20, 1995, she hired Beltrani to filefor divorce for which he was paid 5500.Approximately two weeks later he told herthat he was taking care of everything. butwhen she next spoke with him around mid­September he admiHed having done noth­ing and offered excuses for his inaction.

By the end of September he told Mrs.Foley that the complaint for divorce hadbeen sent to her husband's office for ser­vice. Soon thereafter she advised Beltranithat she wished to withdraw the complaintand reconcile with her husband.According to Mrs. Foley he said thaI thatwas fine and he owed her some money.

She has been trying since OClober of 1995to obtain this money and has learned thatno complaint for divorce was ever filed.Mrs. Foley averred that he had on several

·11 Tie .lrimllllMjer 1'111 lUi

lawyer disciplinary actions

occasions either laid her that he wouldsend her the money or deliver it 10 herhome. but he has not kept his word.

The complaint was sent by cenified.restricted delivery mail and he receivedsame on or about September 21. 1996. Hisresponse was due October II. 1996: how­ever, he failed to respond.

Mr. Michael A. Belt raniLittle Rock, AR

A leiter of suspension was issued toMichael A. Beltrani for violation of ModelRules 1.1, 1.3. 1.16(d) and 8A(d) upon thecomplaint by Donna Arrowood. The letterof suspension was filed with the Clerk onAugust 14, 1997. These Rules state, inpan, that a lawyer shall provide competentrepresentation to a client. Competent rep­resentation requires the legal knowledge.skill, thoroughness and preparation rea­sonably necessary for the representation; alawyer shall aCI wilh reasonable diligenceand promptness in representing a client;upon termination of representation. anaHomey shall take steps to the extent rea­sonably practicable to protect the client'sinterests, such as giving reasonable noticeto the client, allowing time for employ­ment of other counsel, surrendering papersand propeny to which the client is entitledand refunding any advanced payment offee that has no! been earned; and, a lawyer

shall not engage in conduct that is prejudi­cial to the administration of justice.

Mrs. Arrowood averred that she hiredBeltrani on or about May 22, 1995, to filea bankruptcy on her behalf. She paid him5660 for this service. According to Mrs.Arrowood Beltrani never filed anything onher behalf. She did, at his request, com­plete Bankruptcy Schedule J: however.MTs. Arrowood stated, since that timeBeltrani has done nothing. As a result ofhis negligence and failure to obtain theprotection of Ihe Bankruptcy Coun Mrs.Arrowood's vehicle was repossessed, aswas her furniture. Additionally, Mrs.Arrowood's ability to maintain continuousemployment has been jeopardized as aresult of her creditors contacting her at herjob. Beltrani has failed to relurn any por­tion of Mrs. Arrowood's retainer and shehas hired another attorney who is pursuingher legal remedies against him on her

behalf.The complaint was sent by certified,

restricted delivery mail and Beltranireceived the same on July 3, 1996. Hisresponse was due on July 23. 1996. Herequested an extension based on the factthat Mrs. Arrowood had civil litigat.ionpending against him. An extension wasgranted to September 30, 1996. aresponse was received.

Mr. Ronald C. NicholsLittle Rock, AR

A letter of caution was issued to

Ronald C. Nichols for violation of ModelRules 1.3 and 8A(d) upon the complaintby Lamont Bowden. The letter of cautionwas filed with the Clerk on August 18,1997. These Rules state, in pan, that alawyer shall aCI with reasonable diligenceand promptness in representing a client;and, a lawyer shall not engage in conductthat is prejudicial 10 the administration ofjustice.

Mr. Bowden is Nichols' c1iem in anappellate mailer pending before theArkansas Supreme Coun. The appeal isfrom a capital murder conviction. Fromthe infonnation provided by Mr. Bowden,and discerned from the appellate records,it was determined that Nichols filed therecord with the Clerk on December 6,1995. The brief on Mr. Bowden's behalfwas first due on January 15, 1996. Insteadof filing the brief on that date, icholsrequested the first of his four extensions tofile the brief. Mr. Bowden was notified onthese extensions by Court personnel, notby Nichols. The brief was not filed on orbefore the date of the final extension grant­ed to him. The brief was filed two monthafter that date and only after Ihe SupremeCourt i sued a show cause order to him.The Supreme Coun did not find ichols incontempt based on extenuating circum­stances involving his daughter. Even afterNichols filed Mr. Bowden's brief, he fileda Motion to Amend following the AttorneyGeneral's request that he be required tocomply with Supreme Coun Rule 4-3(h).TI,e final version of Ihe brief that Nicholsfiled for Mr. Bowden was filed over tenmonths after it was initially due to be filed.

In responding to the complain I,Nichols provided a great deal of informa-

tion about the underlying criminal trialwhich was not pan of the complaint beforethe Committee. According to ichols, fol­lowing the verdict of guilty. he spent threehours going over objections wilh Mr.Bowden. He also explained that followingthe reading of the verdici he asked to berelieved, but Judge LangslOn refused hisrequest. He averred that he was forced todo Mr. Bowden's appeal and pay for it outof his own funds. It was also his assertionthat he filed the brief prior to the Coun'sShow Cause notice to him.

Mr. William M. HowardPine Bluff, AR

A leuer of caution was issued to M.r.William M. Howard for violation ofModel Rules 1.3. 3.4(c) and 8.4(d) uponthe Per Curiam complaint on appellantDamond Sanford. The letter of cautionwas filed with the Clerk on August 26,1997. These Rules state, in pan, that alawyer shall act with reasonable diligenceand promptness in representing a client; alawyer shall not knowingly disobey anobligation under the rules of a tribunalexcept for an open refusal based on anassertion that no valid obligation exists;and, a lawyer shall not engage in conductthat is prejudicial to the administration ofjustice.

The facls as set out in the Per Curiamopinion referred by the Supreme Coun arethat appellant Damond Sanford was con­victed by a jury of capital murder and sen­tenced to dealh. A notice of appeal wasfiled. Howard received four (4) extensionswithin which to file a brief. Although thefourth extension was stated to be the"final"' extension, Howard failed 10 file abrief by January 12, 1997, the final day 10

do so. On February 21, 1997, Howardfiled a motion for belated appeal, but itwas denied since he did not accept respon­sibility for the failure to timely file thebrief. An order to appear and show causewhy he should not be held in contemptwas issued. On March 3 I, 1997. Howardentered a gui Ity plea. accepted full respon­sibility for the failure and offered mitigat­ing circumstances. The Court held him incontempt, fined him and gave him ten (10)days to file the brief.

In his response, Howard stated hibelief that the circumstances leading to the

lawyer disciplinary actions

delay were justifiable. Specifically, heaverred that he had never had a client sen­tenced to death and he became obsessedwith trying 10 ovenurn his conviction.During this time some intervening eventsoccurred necessitating the several exten­sions. He stated that the sudden death of afriend and his diagnosis of a medical con­dition that required medication to controlall added to his difficulties. The brief wascompleted, but because the coun reponerdid not have a complete transcript theCoun issued a Writ of Ceniorari 10 thereporter in order to obtain a completerecord. Howard concluded his responseby admitting responsibility.

Mr. Gary GreenLittle Rock, AR

A letter of caution was is ued to Mr.Gary Green for violation of Model Rules5.5(a), 7.1(a) and 7.I(b) upon the com­plaint of Eugene Stone Forrester, Jr. Theletter of caution was filed with the Clerkon August 26,1997. These Rules state, inpan. that a lawyer shall not practice law ina jurisdiction where doing so violates theregulation of the legal profession in thatjurisdiction; a lawyer shall not make afalse or misleading communication aboutthe lawyer or the lawyer's services, omit­ting a fact necessary 10 make the statementconsidered as a whole not materiaUy mis­leading: and, shall not make a misleadingcommunication that is likely to create anunjustified expeclalion about results thelawyer can achieve, or state or imply thatthe lawyer can achieve results by meansthat violate the rules of professional con­duct or other law.

Mr. Forrester is an attorney licensedand practicing in Tennessee. He and hiswife were involved in an automobile acci­dent in Shelby County, Tennessee, wherethey reside. Within 30 days of the motorvehicle accident, Mr. Forrester receivedwritten communication form Greenwherein he attempted to solicit his legalbusiness. This communication violates aTennessee Disciplinary Rule which pro­hibits such communication within 30 daysof an automobile accident. Green's corre­spondence offers his assistance. help, andquick. aggressive action in dealing withthe situation. His correspondence gives

the impression that he can provide legalservices to Mr. Forrester in Tenne see.No-where in the correspondence did headvise that he was not licen ed 10 practicelaw in Tennessee.

Green admitted in his response that heis not licensed to practice law inTennessee. He denied engaging in thepractice of law there and funher, deniedthat he was subject to regulations of thelegal profession in Tennessee. He specifi­cally denied that he made any false or mis­leading communication about his law firm.He also closed his response by asseningthat he had ceased direct mail marketing inTennessee. He also asserted his disbeliefthat anything in his correspondence wasmisleading to Mr. Forrester since he is anattorney licensed in Tennessee.

Mr. Richard J. OrinlasLillie Rock, AR

A letter of caution was issued to Mr.Richard J. Orintas for the violation ofModel Rule 4.2 upon the complaint ofFrank B. Newell. The letter of caution wasfiled with the clerk on Augu t 26, 1997.This Rule states that in representing aclient, a lawyer shall not communicateabout Ihe subject of the representationwith a pany the lawyer knows to be repre­sented by another lawyer in the matter,unless the lawyer has the consent of theother lawyer or is authorized by law to doso.

Mr. ewell represented Dean MarvelConstruction Company in a WorkersCompensation mailer. Dean MarvelConstruction Company was the respon­dent employer. Orintas represented theclaimant employee in that matter. He sentMr. ewell's client a letter in which hedemanded remittance of attorney's fees.In this same letter, Orintas also threateneda garnishment action if he was not paid byMr. ewell's client. Mr. Newell was notsent a copy of this letter. After learning ofthis correspondence, Mr. Newell wroteOrintas and insisted that he cease commu­nication with his client. Despite thi .Orintas again sent communication directly10 Mr. ewell's client.

In responding to the affidavit of com­plaint, Orintas asserted thai he contactedMr. Newell's client directly only because

flllilli Tl! .Irbml In]ff Ii

Mr. ewell had not responded to his earli­er letter to him. His letter told Mr. Newellwhat action would be taken if the issue ofattorney fees was not settled. He alsoasserted that he never received the letterfrom Mr. ewell advising him n01 10 con­tact his client. He averred that his firstnotice of the lelter was when he receivedthe fannal complaint from the ExecutiveDirector. He explained to the Committeethat it was his belief that the complaintwas personal, not substantive.

Ms. Laura J. McKinnonFayelteville, AR

A letter of caution was issued to Ms.Laura J. McKinnon for the violation ofModel Rule 1.5(c) upon the complaint ofJohn M. Thornburgh. The letter of cautionwas filed with the clerk on August 29,1997. This Rule states, in part, that a con-

lawyer disciplinary actions

tingent fee agrecment shall be in writing.Mr. Thornburgh hired McKinnon dur­

ing August of 1991 to represent him on aWorkers Compensation matter, a SocialSecurity Disability mattcr, and a personalinjury matter. McKinnon's client's under­standing of the fee arrangement for thepersonal injury case was that there wouldnot be any attorney's fee unless a recoverywas had. That is a fee contingent on theoutcome of the legal matter. However. Mr.Thornburgh did not execute any writtencontract or document in regard to the feearrangement for the personal injury repre­sentation. In June of 1993, Mr.Thornburgh became dissatisfied withMcKinnon's services and tenninated herrepresentation of him in the personalinjury matter. Upon being notified of thetennination, she sent notice of an aUor­

ney's lien. A dispute arose about tenns ofher agreement with Mr. Thornburgh. This

dispute could nOI be settled because theagreement was never put in wrinen fonn.

In response to the affidavit, McKinnonacknowledged that she did not have a writ­t.en contingency fee contract to present (0

the Comminee specifically referring to thepersonal injury maner. She agreed thatshe could not prove one was ever enteredinto relating 10 Mr. Thornburgh's personalinjury claims.·:·

RE: Estate of Carmen K. (C.KJ PowellWe represent the surviving widow of Carmen K (CK) Powell, a resident

of North Little Rock, Arkansas who passed away on July 8, 1994. Anyattor-

ney who was ever contacted by Mr. Powell to prepare a will, drafted a will

for Mr. Powell, or who knows of any attorney who may have been contact-

ed by Mr. Powell to draft a will, please call or write our office.

Deininger &Wingfield1405 Pike Avenue

North Little Rock, AR 72114.(501) 372-3843 or FAX (501) 375-6298.

,II T~ lrkllw Ll~j/r Fall Illi

Regina Whitaker LaidlerRegina Whitaker Laidler, 70, of Hot

Springs died July 16, 1997, at her home.Regina Laidler was active in Arkansas

Bar Association affairs during her fortyyear legal career. She was a Fellow of theArkansas Bar Foundation and was one ofthe fLrst women elected lO the House ofDelegates. She served on numerous com­minces and sections and in 1995 was amember of the committee which fannulat­ed the SWlldards for ExamillOlioll of RealEstate Titles in. Arkansas.

She is survived by her sist.er, KayWalton of Wilmington, Delaware. Shewas predeceased by her fom,er husbands,Paul W. Johns and Neil Laidler.

George W. Hartje, Jr.Former judicial district judge and

prominent Conway anorney and civicleader George W. Hartje, Jr., died in July.He was 66.

Mr. Hartje had been a practicing attor­ney for 40 years. He received his J.D.from the University of Arkansas LawSchool in 1957.

Judge Hartje was a member of the BarAssociation from the time he was admit­ted to practice. He was elected as a mem­ber of the House of Delegates and servedon numerous sections and committeesincluding the Unauthorized Practice ofLaw, Lnsurance Law, International Lawand the Judicial Council LiaisonCommittee~ as well as many other com­mittees.

He served as prosecuting attorney inthe 5th Judicial District and was in privatepractice, after which he was appointed bythen Gov. David Pryor as a Faulkner

In Memoriam

County Municipal Judge in 1977.Hartje became a circuit court judge in

1979 and immediately won the reputationof an innovator.

Hartje is survived by his wife JohnnyeLewis Hartje; four sons, George Hartje ITIof SI. Louis, Bryan Hartje of Conway,Stephen Hartje of Momgomery, Ala., andRobert Hartje of Little Rock; two step­daughters, Marsha Gilbertson Lewis ofLittle Rock and Robin Lewis Johnson ofPittsburgh; a sister, Marilyn Moores ofRussellville; and seven grandchildren.

Thomas Franklin Meeks, Jr.Thomas Franklin Meeks, Jr., 43, of

Little Rock, died October 7, 1997. He issurvived by his sister Julia Meeks.

Mr. Meeks was a member of theArkansas Bar Association and was a part­ner in The Trammell Law Finn in LittleRock. He had two passions, the law andaviation which were even greater than thenonnal zeal he had for life, in general.

He took great pleasure in l1ying a 1947Luscombe 8A (the first all-metal single­engine) in circles al eye-level aroundPinnacle Mountain. Hi.kers to the summitwould laugh as he came by, at hyper­reduced speed, with his arm out the win­dow, waving as if he were cruising MainStreel. He even chose to reside on an airstrip in eastern Pulaski County.

He died a bachelor, epitomizing theold legal adage that "the law is a jealousmistress." There was no predictability tohis working hours. Tommy could be at theoffice comfortably at 9:00 p.m.• but thenmight l1y to New Orleans to stroll theFrench Quarter, or visit a Tennessee bat­tlefield on a Wednesday afternoon.

He consumed the law in ravenous fash­ion. Principal reference books had to be athis fingertips, next to his desk.

Tommy insisted that anyone hired inhis law firtn be an "exact fit," and theybecame his family. He had been "adopt­ed" by many friends: at his favoriterestaurant, aircraft hangar, and even thelocal haberdasher who kept him alwayslooking the crisp, quintessential coun­selor.

He was bitten by the challenge of talk­ing to a jury. On the eve of a trial, youwould find Tommy walking around asmall town in Arkansas, talking to his

client, making sure that if he was eventu­ally beaten, he would not have been out­prepared.

As an example of the eternal boy inTommy, a partner's 10-year-old wasentrusted for the day. She later reported toher parents thai she had driven her firstautomobile - a red sports car - downTommy's grass airstrip.

Cecil Boone Nance, Jr.Cecil Boone Nance Jr., a Marion native

and local attorney for Nance & Nance,died recenlly in Memphis.

Mr. ance was known in many circles- as an attorney, political representative,scholar. father. friend and an avid l1y fish­erman.

After receiving his LL.B. at theUniversity of Arkansas in 1951, he estab­lished his law practice. He was a long­time member and supporter of theArkansas Bar Association, having servedon the Executive Committee and in theHouse of Delegates. He was also a mem­ber of numerous sections and committees,including Election Law Revision,Constitutional Reform, Defense ofCriminal Indigents. the JudicialNominations Committee and several oth­ers.

Mr. ance was a past president of theCrittenden County Bar Association, andwas also a member of the Arkansas andAmerican Bar Associations, the AmericanJudicative Society and the JudgeAdministration Association.

He is survived by his wife, HarrietMcGee Nance of West Memphis; a daugh­I.er, Janet Nance of Little Rock; a son,Boone Nance of West Memphis; a sisterDorothy Buchanan of Marion; and onegranddaughter. Anna Leigh ance.

Willard C. Smith Jr.Willard C. Smith, Jr., 54, of Fort Smith

died September 23, 1997, in Fort Smith.Mr. Smjth received his law degree

from the University of Arkansas and hadpracticed law in the Fort Smith area since1969.

A continuous member of the BarAssociation, he was admitled to practicebefore all courts in the State of Ark~Ulsas:the Supreme Court of Arkansas, the

continued on page 48

In Memoriam continued flassifird .\dwl'tising

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PAGE28

12141718191920212627282932333536373841414348

AT&TLandTed1 DalaGreat Amer~ InsuranceDavid MillerLegal Nurse ConsullantD~ly &WoodsJohn T. BatesMolly Ply InvestigationsAI~a Thorne-CorkeLOIS, Inc.McAllisterNeblett, Beard, ArsenaullPaul D. MixonRobinson, Wood P.L.L.CLegal Directories PublishingMedical Research InstituteMike ThompsonAccountanVEconomic AnalysisADR,lnc.Bridges, Young &MatthewsJim HallBaim, GuntiProfessional Mediation/ArbitralionMark Perdue' •

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EXPERTExpen testimony provided which relates to theAdministration of programs for persons with mentalretardation or developmental disabilities. Panicularemphasis on the propriety of policies. procedures andindividual lreatment in institutional and communityliving settings related to risk management and com­pliance with state and federal regulations. WilliamA. Lybarger Ph.D., 316-221-6415.

The Arkansas Bar Foundation acknowl­edges with grateful appreciation thereceipt of memorial gifts and scholarshipcontributions given in memory of the fol­lowing individuals from July L, 1997,Ihrough OClober 25, 1997:DONALD J. ADAMS SCHOLARSHW FUND,

IN MEMORY 0'- DONALD J. ADAMS

Bellye L. CurtisIN MEMORY 0'- MRS. BOYCE DAVIS

Judith GrayWalter R. Niblock

IN MEMORY 0'- COREY DENNIS

Judge William R. Wilson, Jr.IN MEMORY 0.- GLENDA HUIE

Judge William R. Wilson, Jr.IN MEMORY 0'- REGINA LAIDLER

Judith GrayIN MEMORY 0'- ROBERT R. LE.-LAR

Ronald A. MayIN MEMORY 0'- TRAVIS MATHIS

Comer Boyett, Jr.IN MEMORY 0'- C.B. NANCE, JR.

Justice John A. and Annis FogelmanMr. and Mrs. Julian B. Fogelman

IN MEMORY 0'- SELMA RATLEY

Judge James M. MoodyIN MEMORY 0.- ROGER SIMPSON

Judge William R. Wilson, Jr.BERNARD AND BUD WHETSTONE

SCHOLARSHtP FUND, tN MEMORY 0.­

DALTON WHETSTONE

Judith GrayAdrienne H. Brietzke

munications Commission, 1954-56; andDirector of the Office of AdministrativeProcedure, Department of Justice, 1956­58. He served as a member of the JudicialConference Subcommillee on SupportingPersonnel, 1975-77, and the AdvisoryCommittee on Appellate Rules, 1978-84.Judge Henley was a Fellow of theArkansas Bar Foundation. In 1984, theJudge J. Smith Henley Scholarship waseSlablished in his honor with the ArkansasBar Foundation.

Judge Henley will be remembered asone of this country's great jurists. Hisdecisions helped to desegregate the LillieRock schools and refornl the Arkansasprisons.

He is survived by his wife of 59 years,Dorothy Ingram Henley; daughters,Wordna S. (Mrs. Tommy) Deere, and JaneK. Henley; grandsons, Jesse T. Deere andDavid E. Deere and his wife, Katie.

Judge J. Smith HenleyJudge J. Smith Henley was born in Sl.

Joe, AR on May 18, 1917, to Ben H. andJessie Genoa (Smith) Henley. He diedSaturday, October 18,1997, at his home inHarrison, AR.

Judge Henley was appointed UnitedStates Circuit Judge for the Eighth CircuitCourt of Appeals in March 1975 and tooksenior judge status in May 1982. Hebegan his career as a judge in October1958 when he was appointed United StatesDistrict Judge for the Eastern and WesternDistricts of Arkansas. He served as ChiefJudge of the Eastern District during hisentire tenure on the district bench.

Judge Henley received his L.L.B. fromthe University of Arkansas at Fayettevillein 1941 and engaged in private practice inHarrison, AR with the firms of Moore &Henley and Henley & Henley from 1941­54. A continuous Bar Association membersince 1954, Judge Henley was a formerreferee in Bankruptcy for the WesternDistrict of Arkansas, 1943-45; AssociateGeneral Counsel, Federal Com-

Federal Courts in the Eastern and WesternDistricts of Arkansas and the Court ofClaims, the Court of Customs and PatentAppeals, the Tax Court, the FederalBankruptcy Courts of Arkansas andOklahoma and the Supren;e' Court.

Mr. Smith and his wife, Nancy, havethree children: Tripp, Katie and Collier.He is also survived by his mother,Catherine Hoge Gilman of Fort Smith; andtwo brothers, Arthur Hoge Smith ofPortland, are., and David Rollins Smith ofMidland, Texas.

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