APRIL 1974 by Arkansas Bar Association

APRil 1974 •

•

I "

':g

* * *

FREE LOCAL CAlLS FREE AIRPORT TRANSPORTATIO 1S6 GUEST ROOMS B LUXURY SU ITES EXTRA PHONE I BATHROOM

•

THE

RAMADA INN 5101 Towson Ave. Fort Smith. Arkansas 646-2931

A WORD About This Issue This issue was published by the Public Relations Committee of the Arkansas Bar Association. The committee assumed the task for several reasons. including trying to give Colonel Ranslck a

much-needed break

because of his

additional duties in connection with the opening of the Bar Center.

The Lawyer

has been edited by

Colonel Ransick in his spare time which in actuality amounts to doing it in time when he ordinarily would be at home. The Lawyer is completely self-sustaining from a financial standpoint in that the advertising revenues are sufficient to pay the total cost of the publication. Colonel Ransick also manages the ad-

vertising campaign. again in his spare time. which is in and of itself a tremendous task. The committee wanted to publish one issue and perhaps use this issue to persuade the mem bers of the AssociatIon that we can have a quality and informative publication on a quarterly basis. if the association is willing to finance It independently of advertising revenues. The advertising is difficult to sell because of our limited circulation and be-

cause of the

limited appeal thai a

publication concerning lawyers has to general advertisers. The advertising in times past has unfortunately dictated to some extent the articles within the Issues. We would like to see the coming issues of The Lawyer patterned after this one. This is only possible if the membership is willing to pay for them. We perceive having some advertising in

the lulure issues. but not relying tolally upon advertising as the financial base of the publication. Our sincere appreciation is expressed to the contributors of the articles. Dent Gitchell. who served as the advertising manager in order to make this issue also self-sustaining, and a special thank you to Ron Robinson and Shirley Kennedy of Cranford/Johnson/Hunt for the many hours devoted to this issue which were

above and beyond the call. We hope you enjoy this issue.

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

April. 1974

APRIL 1974 VOL. 8, NO.2

THE OFFICIAL PUBLICATION OF THE ARKANSAS BAR ASSOCIATION

OFFICERS James E. West. President James 8. Sharp, Vice President James M. Moody. Secretary-Treasurer

EXECUTIVE DIRECTOR C. E. Ransick

EXECUTIVE COUNCIL Thomas F. Butt Douglas O. Smith. Jr. Robert Hays Williams Otis H. Turner Herman Hamilton. Jr. John A. Davis. III W. D. Murphy, Jr. Julian B. Fogleman David Solomon John P. Gill Guy Amsler, Jr. Leonard L. Scott

Ex-Ollicio James E. West James B. Sharp James M. Moody Henry Woods William R. Wilson Dale Price

EDITORIAL COMMITTEE Robert O. Ross Philip E. Dixon C. E. Ransick The Arkansas Lawyer

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

Published quarterly by the Ar1tansas Bar Association. Arkansas Bar Center West Mar1<ham 81 North Conway lillie Rock Arltansas 72201 Second class postage paid ailiule Rock, Ar1tansas Subscrlptlon pnce to non-members of the Arkansas Bar ASSOCl8110n $600 per year and to members 52 00 per year In· cluded In annual dues Any opinion expressed herein IS that 01 tile authOr and 001 necessarily that 01 lhe AJ1l:ansas Bar Assoclatlon. The Ar1<ansas Lawyer or the Ediionai Committee Contnbutlons 10 The Arkansas Lawyer are welcome and should be sent In two COPies to the Ar1<ansas Bar CeOler West Mar1<ham at Non:h Conway Lillie Rock Ar1<ansas 72201

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

(§Ie

Arkansas Lawyer TABLE OF CONTENTS What's the Real Image 01 Arkansas' Lawyers? , , ....•..•....•..... Dr. Ken Bailey 64 Mysticism

John P. Gill 71

New Bankruptcy Rules Practice Pointers

Judge Charles W. Baker 73

Wage Earner Rehabilitation Law Day U.S.A., 1974

A. L Tenney 75 78

Arkansas' Unsung Hero ..................•.......•....•.... 79 The Legal Prolessional Corporation MystiCism

p. 70

in Arkansas

George N. Plastlras and Harvey L Bell 81

The Public Delender in Arkansas

Don Langston 85

C. R. HUie 88

Juris Dictum Sebastian County Legal Aid System

Federal Clerk's Response to the Five Most Frequently Asked Questions Replevin in Arkansas -

Act 144 01 1973

Title VII 01 Civil Rights Act 01 1964 Practice POinters

p. 72

Oyez-Oyez

E. A. Riddle 91 Gnffln Smith 93 Virginia Tackett 95 97

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

President's Report

James E. West 108

76th Annual Meeting .....•.......•....•................... 109 In Memoriam ............•..•............................. 110 Law School News ..........•..... Director J. Steven Clark 112 Lawyers' Mart ...........•................................ 112

Unsung Hero

April, 1974

p. 78

What's the REAL Image of Arkansas' Lawyers? by Kenneth O. Bailey. University of Arkansas

(NOTE: Dr. Kenneth D. Bailey is an assistant professor in the Department of Political Science at the University of Arkansas at Fayetteville. Originally from Nebraska, Dr. Bailey was awarded a B.A. in 1965 and an M.A. in 1967 by Midwestern University and completed his doctoral studies in 1969, at the University of Maryland. Dr. Bailey has a broad background in research and his professional affiliations include membership in the American Association of Public Opinion Research, American Association of Political Consultants, Institute for Social Research/Center for Political Studies, Roper Public Opinion Research Center and Center for the Study of the Presidency. Dr. Bailey would like to express his thanks and appreciation to Mr. James A. Henderson, an MP.A. candidate in judicial administration at the University of Arkansas at Fayetteville, for his undaunted support throughout the entire project, and to Mrs. Margie Bryant and Area Market Research Associates of Little Rock for her moral and their financial and promotional support. Area Market Research Associates, one of the largest public opinion and marketing research firms in the Middle South, is a joint sUbsidiary of First National Bank in Little Rock and Cranford/Johnson/Hunt & Associates, Little Rock-based advertising, marketing and public relations firm. The author takes sale responsibility for the analysis and interpretation of the findings presented within this paper.) The Solar System has no anxIety about Its reputatIon. -Ralph Waldo Emerson Today no group. no organlzation. no Institution can afford to be complacent about Its reputation. Indeed. all aspects of our sOGiety - particularly those that have tradItionally commanded the hIghest respect - are beIng Increasingly pressured to JustIfy themselves or to change. This IS true whether we are talkIng about colleges. Congress. the PresIdency. the medIcal profession. bUSiness. the military. the medIa. or the legal profeSSion. more than ever has become Intensely disconcerted with the professions and professionalism. In essence. there has been a fleXing of muscle by a multItude of sell-Interest groups which have focused their crlllcal concern and decreasing trust and confidence not only ::)0 our governmental InstItutions. but also on the groups. organizations. and associations traditionally accepted by

socIety. e.g., the church. the schools. the family. and many of the profeSSions listed above. Faced With increasingly more complex institutions and problems that seem to rapidly shrink the uniqueness of the individual. people tend to explode against any available barrier. When the price of food goes up. they picket the supermarkets: when new demands for health care surface, they Vilify the doclors: when colleges dIsappoint students. they besiege the administration offIces: and when scandals like Watergate emerge (whIch, for the moment. overshadows such other controversial legal profeSSion Issues as no-fault auto insurance and pre-paid legal services), they discredit lawyers Philip Lesly has noted that there are no "havens" from the assault of critiCism and IndignatIon from the public. whether warranted or not. He has stated that "There IS no refuge from the activist Critics who hold no truths to be self-evl-

dent certaInly not our legal system. the courts. or the rule of law.'" Therefore. the legal system. too. has been subjected to the onslaught of public criticism and to what has most aptly been labeled the "new consumerism. "2 Thus. today more than ever. the leaders of our professional associations must recognize the faci Ihat publiC attitudes toward an organizatIOn are Significantly Influenced by what that profeSSion contributes to society and by how well InformatIOn about these contributions IS commUnicated to the general publiC Large groups WIth loosely linked membership (whether profeSSional or trade assOciatIOns) find It particularly difficult (0 establish and maintain a favorable reputation. Many such organizatIons have resorted to public relatIOns techniques to develop and bolster their "publiC image" (witness the energy related Industries). It is this author's contentIon. however. that prior to any attempt at image building. an organIzation {or In-

The Arkansas Lawyer

dividual) must be cognizant of existing dispositions prepossessed by an in· terested public. Since a considerable bibliography already exists on public image building and a comprehensive work was recently published on public relations law,3 this study focuses on the relatively unfurrowed research area of public attitudes toward the legal profession ..l SCOPE AND OBJECTIVES There is an awareness among members of the legal profession that a "mood" or "apprehension" eXists among the general public about lawyers and the jUdicial system. In addition, It is generally Ihought that many people fail to take full advantage of available pro· fessional services and needed legal advice. Therefore. the scope of the study may best be identified by a series of questions based on an analysis of the public need for. and reaction to. legal servIces. For example: What is the reputation of the lawyer in his own community? That is, what standing and respect do lawyers command or enjoy? To what extent is the profession meeting its public obligation? What percent of the public uses legal services? Does the public recognize the need for legal services? Are people making the most of legal services? Or. do most individuals simply wait until "after the fact'" to seek legal advice? What. in fact. are the major legal problems and what are the most effective methods available for motivating the public toward an earlier recognition of these problems and the need for seeking legal counsel? Has the Bar Association made any real effort to answer these questions? Has the Bar made any real attempt to advance the professional position and prestige of its members? Are there. perhaps. profesSional and ethical problems facing the Bar itself? These are only a few of the many possible questions raised by the above mentioned assertions. A two-staged stUdy has been launched as an attempt to gather the necessary information for answering some of the questions proffered. ThiS paper is based on the results of a state· wide survey of the general public's attitudes toward the legal profeSSion. A follow-up survey of the members of the Arkansas Bar Associallon will attempt 10 measure lawyers' perceptions of the legal profeSSion. ItS role In society. and the responsibility of the Arkansas Bar Association. both 10 the IndiVIdual lawyer and the profession as a whole. By adopting this approach. it is hoped that any "breach" or "gap" between lawyers and the various publics can be identified. Once Identified. if In fact they do exist. it IS believed that Bar Association programs can be instituted to close these gaps and. thereby. make better

April, 1974

and more acceptable legal services available to the public. The ultimate objective of such a study is to provide ways and means of helping the legal community serve the public more efficiently and thereby improving the status of the profession and the position of its members. This primary goal might best be accomplished by concentrating on two other important obJectives: (1) improving the quality of legal services. and (2) increasing public recognition of the need for legal coun· sel. A reasonable approach might weH be a Bar Association program oriented toward: (1) educating the public to the benefits of legal services. (2) motivating the public toward going to a lawyer for "preventive legal advice," (3) developing better methods of establishing and improving attorney-client relationships. and (4) improving follow-up seNices for the client. The ultimate success of such a program is based on the assumption that a majority of lawyers can be motivated to a new sense of appreciation for their own expertise and thereby upgrad· ing the profession in the eyes of the public. The nature of the inquiry of the surveys will be limited to three general areas: (1) the attitudes of the general public toward the legal profession, (2) the attorney-client relationship. and (3) the improvement of specifiC legal services. Although many questions can be answered only upon the completion of both surveys. the following serve as a probable basis for consideration of the suggested areas of inquiry: professional competency; publiC responsibility; professional trustworthiness; and economic aspects of the profession. METHODOLOGY This study is based primarily on in-

formation obtained from lengthy telephone interviews of the general public throughout the state of Arkansas. The interviews were conducted during the week of February 11. 1974. by professionally trained and experienced interviewers under the direction of Area Market Research Associates (AMRA) of Little Rock. In order to Insure that the data gathered would be representative of total stale population (18 years and over), a mUlti-stage area sampling method was used so that all segments of the populace would be proportionately represented. s The sampling method employed was as follows: Each of Arkansas' four congressional districts was subdivided into the smallest possible components, i.e.. the political townships within each county of the district. Within each district ihe townships were arranged by categories. or "strata." each based on the total population of the individual townships. (See Table 1) Utilizing U.S. Census Bureau data, the percentage of each district's total adult population within each of the given strata was determined. The alloted number of interviews were then apportioned among the various strata according to each stratum's percentage of the total district population. Interviews were dispersed randomly among the townships according to a modified clustering technique reSUlting in 477 completed interviews distributed throughout the state. For example. Strata VI in the third congressional district contains 133 "units" (political townships). representing 29% of the distnct adult population. and thus, requiring the drawing of 73 samples. Since time and cost prohibited the interviewing of respondents in each of the 133 townships. a computer program. RANOU. was used to randomly select 30

Dr. Kenneth D. Bailey

~If~

~t:' ~

.<5

(

~I townships from which a minimum of three and a maximum of seven mler views were conducted dependmg upon the weighted population of the specIfic IDwnshlp6 4

TABLE I Population by Strata I - 50.000 plus II - 25.00 1-50.000 III - 10.001-25.000 IV - 5.001-10.000 V - 2.501-5.000 VI - 501-2.500 VII - Below 500 As previously indicated. the legal studies project IS a two-stage venture Involving surveys aimed at measuring public attItudes toward the legal profesSion and lawyers' perceptions of thelf own profession and Its role In society This paper (Part I) IS based on the results of two separate Interview schedu les. Form A for indiVIduals who have at some time In the recent past made use of legal services (53°0 of the respondents), and Form B for those who have never used the services of a lawyer (47°0).7 The questionnaires were constructed by the author and James A Henderson and were pre-tested In the Fayetteville area by Mrs Nancy McVey. presenlly Ihe U S Bureau of the Census representative In Washington County. Arkansas. The questionnaires consisted of 52 possible responses. most of which were designed to answer three questIOns' (1) what does the public think of the legal professIon. (2) why does II Ihmk Ihls way. and (3) what are the most prevalent legal problems. A demographIc profile of the respondents IS as follows'

It should be mentioned that at this WritIng. no statistical operations have been applied (0 the data other than frequencies (percentages) and some elementary measures 01 central tendency (I e. averages. such as the mean. median. and mode). By this we mean that no controls other than dividing the respondents Into user non-user subsamples have been done For example. we have not yet tried to determine whether respondents In different age categories or occupation groups think differently about the legal profesSion. LikewIse. no correlations or cross-tabulations have been applied for purposes of "explainIng" Similarities and or dIfferences be· tween responses With these limitatIons In mind. we can proceed With an analySIS of some of the more relevant findIngs. RESULTS Since the layman questIonnaire revealed that 53% of the publiC were users and 47% were non-users. we can Infer. statistically. that half of Ihe adull population In the state of Arkansas has, at one tIme or another. VISited a lawyer for legal advIce The reasons lor non-use of lawyers' servIces are Important More than 85% 01 those who responded that they had never made use of legal services mdlcated. when asked why. that they had never felt the need for such ser· vIces. This IS approximately 38% of the total number of persons Interviewed Of

equal Significance IS the fact that less than 3°'0 of the non-users speCified flnanclal reasons as a probable cause of non-use This represents an Inslgnlflcant 014 percent of the total number IntervIew Other reasons for not uSing a lawyer s services lall Into categories such as those who do their own legal work and those wh9 recognize the need for a lawyer's services but procrastinate. A question previously proffered was. what are conSidered . real legal prOblems and what are the most effective methods available for motlvatlng the publIC toward an early recognitIOn of these problems and the need for seekIng legal counsel? The problem seems to be one of perceived as opposed to actual need and finally an overt act of seeking legal counsel We have already stated that 85°0 of the non-users have never perceived a need Yet. 19°'0 of the users and 11 % of the non-users responded In the affirmative when later asked' "Have you ever thought you should have consulted a lawyer but did not?" The following tables may better explicate actual use of legal counsel and perceived need for such advice. Table 2a indicates the percent of users who have done the specific acts (therefore representing a potential legal "need") and the percent who actually sought legal counsel and the total percent In regard to the same variables. Table 2b is perhaps more meaningfUl

• SEX

Male Female

35% 65

Under 30 30-45 46-60 Over GO

27% 32 18 23

AGE

• • • OCCUPATION

ProfeSSional BUSiness Sales Small buSiness Clerk secrelary Skilled semi-skilled Farmer Student HouseWife Unemployed Reilled

11°0 6 7 16 8 2 4

26 3 17

* In regard to the sex of the respondent. the high percentage of females could poSSibly be attributed to several factors, e.g.. time of day of Interview. the fact that females are more apt to answer the telephone even if the spouse IS at home. etc. Or. as In our case, the interviewers were mstructed to interview not B quotB, but any adult in the family. It should be noted, however. that the percentage of USERS and NON-USERS would not have changed significantly. since married adults normally responded to the "legal advice" question as if it represented the family and not just the indlvid· ual being Interviewed. * * For those respondents who answered "over 50," an additional series of questions (Form C) were asked. This part of the survey IS being supplemented for a separate and distinct study concerned with the attitudes. legal problems. etc., 01 retired persons here in Arkansas. * * * For purposes of this study. occupational groups were collapsed into these categories to facilitate analySIS. In actuality, "Professional/BusIness" represents doctors, lawyers, business executives, management. teachers. etc.. and "Skilled" represents machine operators. carpenters. construction workers. etc. 66

The Arkansas Lawyer

since it represents the yes/yes responses as expressed in the percent of the number of those individuals who have done each of the events as compared with each other event. For example. we find that 51 % of the people who bought or sold a home made use of a lawyer. whereas only 21 % of the people who had property damage used a lawyer. The reason this differs from the "user" breakdown in Table 2a is the difference in the number of cases involved. In Table 2a. all 253 users are included (N equals 253), whereas in Table 2b each N (number of cases) is different because we are taking the number of those who have used lawyers and dividing it by the number of persons who have indicated "yes'" they have done something. Several conclusions may be drawn from the above findings. First. perhaps the general public has not been educated concerning the variety of services offered by the legal profession. For example. the three most frequently cited actions do not necessarily correspond with the percent of lawyer use. This most likely is due to the fact that several other professions (non-legal groups) may provide the same services. Examples could be that the respondent who has been involved in one of the above events. such as "had your income tax return questioned." may have used the services of an accountant instead of an attorney. The same is true of those who have bought and sold a home since they may have used the services of a realtor. etc. Of primary importance. perhaps both to the lawyer and to his client. is the perceived satisfaction of those individuals who have at one time or another required the services of an attorney, In this respect. the survey attempted to ascertain from those individuals who have used attorneys several things: was the lawyer used for personal or business reasons; how often had legal services been required in the past few years: and. of course. was the client satisfied with the services received; and would he. if necessary. return to the same lawyer again? Of the 253 respondents (53%) who stated that they had made use of legal services. 44% considered their use to be for personal reasons. 23% for business reasons only. and 33% indicated that legal advice was sought for both personal and business purposes. In regard to when legal advice was sought. 48% had used an attorney at least once during the past year. 57% within the past three years. and nearly 70% had required the services of an attorney during the past five years. The remainder (30%) of the persons who had answered "yes" to the question: .. Have you ever gone to a lawyer for legal advice?" indicated that they either did not remember when it

April, 1974

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

(N equals 253) USERS Have you ever:

-bought or sold your home -been involved in an auto accident where there was personal injury or substantial damages -had an injUry at work reSUlting in lost time -had an injury requiring a doctor's attention where someone else might have been to blame -been involved in a dIspute concerning a written or an oral contract -had your property damaged by fire, weather or another person. where a dispute arose ~had a dispute involving the inheritance of money or property -had your income tax return questioned -been sued ~made a will

(N equals 477)

TOTAL

Used Have Lawyer

Have

Used Lawyer

70%

36%

61%

19%

8 14

6 2

1 4 16

5 24

TABLE 2b: Percent of Users by Legal Event

(a) bought or sold your home (b) been involved in an auto accident where there was personal injury or substantial damages (c) had an injury at work reSUlting in lost time (d) had an injury requiring a doctor's attention where someone else might have been to blame (e) been involved in a dispute concerning a written or oral contract (f) had your property damaged'by fire, weather, or another person. where a dispute arose (g) had a dispute involving the inheritance of money or property (h) had your income tax return questioned (i) been sued (j) made a wi II

was or that it had been longer than five years ago. The mode, or the response most frequently given for how often legal services had been required, was twice a year. although the range varied from one to over 100 times a year. 8 The following

51%

66 38 57

90 21

80 16

83 87

table represents the satisfaction with legal services received and the expressed desire of the respondent to return to the same lawyer if it were deemed necessary:

TABLE 3: Lawyer Satisfaction and Recrudesce

Satisfied

Dissatisfied

Unsure

87%

11 %

Return

Not Return

Unsure

80%

17%

TABLE 4 Lawyer ChOice by Users and Non-users

Personal Fnend Recommended Select al Random Other Don t Know

Users

Non-users

Total

45%

13 0/0 62 12 7 6

30%

100 0 0 (N equals 4771

Hx)掳o (N equals 224)

33 14 7 1 100 0 0

(N equals 253) Table 3 merely portrays the client's satisfaction with the expenence of havIng to retain an attorney and the public's Impression of services performed by lawyers. Although there IS some difference In whether the respondent would return to the same lawyer. the difference tS slight and should not necessanly be Interpreted as representing "dlssatlsfaction" as the reason for not returning to the same lawyer. Another question of probable Interest to lawyers was: "How did you go about choosing a lawyer In the first place was he a personal fnend. was he recommended to you by a fnend. did you select one at random. or what?" A SImilar question was used for non-users. It asked' "If you were to need the services of a lawyer, how would you go about choosing one. .?" Table 4 summarizes the replies of those questions relating to the selection and recommendation of a lawyer. It is significant to note the differences between users and non-users In regard to the first two responses. I.e" selection because the lawyer was a personal fnend or an acquaintance and recommendation of a lawyer by someone else. The Implication here IS that IF one does not know of a lawyer personally. then the reputation of a particular lawyer IS more likely to be a determining factor. ThiS may be further substantiated by looking at the results of a SimIlar. yet more Indepth question asked In the Mlssoun legal study.9 In the Mlssoun survey the Layman Questionnaire asked for up to three reasons why those interviewed selected a particular lawyer The analySIS showed that Taken together. 'reputatton' reasons represented a total of 64% of all responses. Being known as an honest. trustworthy person and referrals by a friend. neighbor. or other lawyer contain strong elements of reputation. This is likewise true of 'skill as a capable lawyer' since clients rarely have the ability to jUdge this factor in advance and are in fact largely relying upon the lawyer's reputation for skill in giving this reason. Factors showing more personal knowledge about the lawyer through friendship. acquaintance, community and political activities. account for

the remaining 36 0 '0. To summanze. It IS clear that general reputation. whether for honesty or capability. IS by far the most Important factor which governs the selection of a lawyer by MISSOUri laymen .10 BelOg limited In scope because of the nature of the present survey (telephone as opposed 10 Ihe m-depth personal Interviews In the Mlssoun study). we were unable to "probe'路 for depth reasons for lawyer chOice However. It IS significant that 62% of those who have never used a lawyer would ask for a recommendallon rather than use a personal friend (if available) or select one at random. The seven percent who answered "other" prlmanly Cited "fathers" or "other relatives" as being their representatives for any legal problem or potential legal problem. A senes of questions related to POSSIble methods of chOice dealt With publiC attItudes toward the trustworthiness. comperence. and altruism of lawyers as a profeSSion Each of our respondents was given general Instructlons and then asked a senes of questions Here are a senes of two statements, each dealing With truthfulness, competence. and public mterest of lawyers. We would like to have you tell us which one of the two statements comes closest to your own POint of vIew (al Do you feel that lawyers can be counted on to tell the truth as they know It almost all of the time. OR (b) Do you !eellhey distort the truth often enough that you really never know whether or not they are telling the truth? <a) Do you feel that lawyers almost always can be depended upon to know what they are talking about. OR (b) Do you feel that they may know more than the average person but not much more than anyone With good common sense? (a) Do you feel that lawyers are concerned mainly with the good of others and they will sacrifice a great deal for others. OR (b) Do you feel that they are usually out for themselves but they will make

47 13 7 3

some effort to help others If they have nothing to lose by dOing so? The above questIOns were adopted from a study which employed ratings on 4-polnt scales for truthfulness. competence. and altrUism (publiC Interest) as applied to twenty separate occupations where lawyers were Included. The authors emphasized the Importance of their study by stating: It IS belaboring the obvtous to pOint out the Importance of Interpersonal trust In a SOCial group. Family relations. relationships between countries. and groups withIn a SOCial unit as well as the everyday bUSiness of living depend upon trust. It IS the fabric that holds social organizations together. The importance of trust IS emphasized when we realize that a number of investigations have uniformly found that trust and trustworthiness are closely related. The less trusting an indiVidual. the more he tS likely to lie or to deceive others So. as trust diminishes In a SOCial group. lies Increase and a VICIOUS cycle IS continued,ll Again. because of the nature of thiS study. we found It necessary to limit the scope of the scaled-questlons. Therefore. we chose the first and third statements (thus, eliminating a moderate and the most extreme derogative statements) as a relative measure of Arkansans' attitudes toward the legal profession on the three van abies Although not uSing all of the same occupations. the MISSOUri study also attempted to determine the public Image of lawyers In comparison with other professlons. 12 No direct analogies can be made between our findings and the results of the other two studies: however. some generalizations about identifiable trends can be inferred. For example. the Rotter and Stein study found that their sample perceived lawyers to be very high In competence (third behind phySICians and dentists) and only about at the average of all twenty occupations in truthfulness and public interest (ninth in each - just behind high school teachers and before law enforcement officials on the former and behind college professors and before law enforcement officials on the latter)"3 The

The Arkansas Lawyer

]

findings of the Missouri study were entirely different in that the respondents were asked to rank the professions as to general reputation in the community. Out of seven professions, lawyers were consistently ranked number SiX. 14 In regard to our results, we find that there is no significant difference in the way users and non-users responded to the series of statements. However, we do find that our pattern conforms to that of the Rotter and Stein survey in that our sample perceived lawyers to be more competent than truthful and more truthful than altruistic. Somewhat related to the above is the perceived reputation of the lawyer not in relation to other professions, but in regard to his position within his own community. Our sample was asked: "How do you think people in your community feel about lawyers in general - would you say that lawyers are well respected, only somewhat respected, or not respected at all?" The layman user and non-user have similar impressions in regard to lawyer respectability with two significant differences. Applying the principle of "significant differences between percentages"15 we find that in regard to "well respected" there is no difference between the responses of users and non-users (the percentage difference would have to be approximately 12% to be significant). However, there is a considerable difference on how users respond to the "only somewhat" and "not respected" categories, Eleven percent fewer users than non-users perceived lawyers to be only somewhat respected. and six percent more users than nonusers see lawyers as not being respected at all (levels of significance for the two subgroups are 10% and 8% respectively, thus the latter is on the border of not being a "real" difference). Several explanations could be offered here. First, there may be a strong correlation between the 11 % who were dissatisfied with thei r lawyers and the 17% who said they would not return to the same lawyer and the responses of "only somewhat respected" and "not respected at all." Or. as we will see. there may be some connection between past or recent events (whether local. state, national. or, for thai matter, personal) that may be responsible for those who have made use of legal services to respond less favorably, Without controls and correlations, however, this IS merely conjecture. Two additional questions of interest to lawyers have to do with legal ethics and the possible effects of Watergate and its ramifications on lawyer reputation. Upon first glance. the responses may seem to be contradictory, For example. 55% of the public believe that recent events, April, 1974

TABLE 5: Comparison of Truthfulness, Competence, and Public Interest by Users (U) and Non-users (NUl '00

.0 80 70

POSITIVE RESPONSE

z U

w ~

(U)

(NU)

(U)

(NUl

(U)

(NUl

NEGATIVE RESPONSE

30 20 DON'T KNOW

TRUTHFULNESS

COMPETENCE

PUBLIC INTEREST

TABLE 6: Respectability by Users and Non-users

Well Somewhat No Respect Don't Know

Users

Non-users

Total

59%

55%

57%

22 6 13

33 0 12

27 3 13

100% (N equals 253)

100% (N equals 224)

100% (N equals 477)

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

A Great Deal Somewhat Nol at All Not Sure

User

Non路user

Total

29% 30

18%

24%

32 27 22

31 29 16

100% (N equals 224)

100% (N equals 4771

31 10

100% (N equals 253)

TABLE 8: Lawyer Ethics by Users and Non路users User Ethical Unethical Not Sure

Tolal

75% 9

67% 6

72% 7

100% (N equals 253)

e,g .. Watergate, have hurt the lawyer's public image; however. the public consensus (72%) is that lawyers are considered to be ethical. An examination of Tables 7 and 8 indicates that there is probably no correlation between one's perception of the ef-

100%

(N equals 224)

(N equals 477)

fects of Watergate on the legal profes路 sian and one's attitude toward legal ethics, It is interesting to note, however, the difference in opinion 01 users and nonusers in regard to the Watergate question, The public was asked: "Generally

speakmg. do you think that recent events, e.g .. Watergate. have hurt the image of lawyers a great deal. only somewhat. or not at all?" A combination of the first two responses shows that those who have had direct contact with lawyers are more apt to see political events, e.g., Watergate and perhaps the Agnew affair. as tarnishing the public image of lawyers than those who have not made use of legal services. (59% to 50% respectively). A fmal point of interest to the lawyer might be the fact that one individual, when asked: "What is your opinion about lawyers' fees?" answered. "They are too low!" On a more serious note. of those individuals who had sought legal assistance. 41% thought that legal fees were too high and 51% indicated that they thought they were about right (with 8% answering don't know), The majority of responses supporting the present level of fees should not be too surprising since we have previously noted that only three percent of the non·users cited financial reasons as probable cause for not seeking legal advice, CONCLUSIONS The purpose of this part of the legal studies project. of course. was to collect data which would provide information concerning publiC attitudes toward the legal profeSSion; the reasons why these attitudes prevail. and the motivational factors affecting the use of legal ser· vices. We have attempted to explicate publiC acceptance of legal assistance by delineating those practices of the legal profeSSion which create positive and negative public impressions and to help clarify those attitudes which can be at· tributed to a lack of public understanding. We did this by constructing questionnaires and conducting interviews based on what the public thinks 01 the legal profession, To summarize. we found that half of the people (adult population) in the stale of Arkansas have at one time or another made use of legal counsel. In addition, we found that even though some state and national events may have hurt the overall publiC image of the lawyer. m his own community he is Slill well respected - thiS may be based on the findings that he is perceived to be trustworthy (truth· ful). competent. and. to a lesser degree. ccncerned with the welfare of his com· munity (society). Likewise, the publiC sees Ihe lawyer as being ethical. again reflecting the attitudes of trustworthiness, competence, and altruism as perceived by the general public. One area of surprise might be that half of those interviewed believe that the fee schedule used by the legal profeSSion was "about right" while only 41 % thought that fees were "loa high," A major recommendation seems to be

4 The publiC 01 pubhc op,nlon Or public attitudeS may be defined m seve,al ways By pubhc opinion we mean the cemple. 01 Dellets e.pressed Dy a Slgrllhcanl number 01 pefsons on an Issue of gene,allmPO!'"lance See Beroald C HennesSy Public Opinion (Belmonl Cal Wadsworth PubliShll"9 Company Inc 2nd ed 19701. PP 2.1-:1) fo, an e.planatiOn ot me delinillon AnOlhef usage IreQuenlly means Ihe prevailing and p,edomtnant allitudes and ludgments ot lIle memt>ers 01 a community on given ISSUes of generlll conlrOversy as determined by puOlic George A anCl AChilleS G Theoc!Or. Opll'llon poliS son A Modern Dicllonary 01 SociOlogy {New Yorll ThOmas Y Crowell Company 1969) 0 315 The Theoctor. sons have also pronered an adequate del1l11tlon 01 atll tudes that applies 10 our SltuallOl'l al1llucles are an Orlentatlon tow,tfd cellSln obl8Cts {InCluCllng persons _ otne,s or oneselll or sllua:lons lhat IS emOlionally loned and ,elallyely peflislenl. An atutude 's learned and may be rega,Cled as <l more speclllC e~press\on 01 a value or bellel In that an altitude results I,om the application o! a general value 10 concrete OblectS 01' Slluallons Ibid.. p 19 my emphaSIS 5 See Leslie Klsh Survey Sampling {New York JOhn Wiley & Sons Inc. 1967) especially chapters J anCl 10 We have attempted to "miniaturize K,sn s national sam· pie by adoptlngpohhcal townstllps as our Primary samphng units as opposed to the county as used by Ihe SUIVey Research Cenle, at the UnlverSlly of Michigan lind other national SUl'\ley concerns For a less techrllCal and more leaClable presenlatlon see Roll and Canlul Poll.: Their Un and MisulIl In Politic. lNew York BasiC Books 1972) 6 TI'l9 political township was cnosen as the pnmary samp Ilhg unit since It is a SUtxllVISIOn of a COunty With per manenl and Identifiable boundanes and has been deltned Oy Charles ADrams as a unit 01 local government I e a diVISion 01 a COunty (f'eQuentlyl With administrative con· trol over schools roads and Other lOCal aHalf'S 7 A Form C reqUiring a posSible ten additional fCSponseS lor respondents over lhe age ot GO was adCled III the reo Quest 01 tne Amencan AssoclaliOO 01 Retire<! Pet'sons Na· honal Retire<! Teacl'lers Assoclallon Washington 0 C

In the area of publiC education of the types of services offered by the legal profession. As was indicated by our list of "events." many of those who had been involved in one or mare of the ac· tivities had not sought legal counsel. Perhaps this is an area where the Arkansas Bar Association should step in and attempt to inform the public of the available services, A number of questions on this survey were not covered in this paper since their interpretation will be more mean· ingful when compared with responses as obtained from the members of the legal profession itself. J--....

see

FOOTNOTES: 1 Pnllhp Lesly Respect for Ihe Law and Lawyefs In an Age 01 Unresl Speech before the Nahonal Instltule on Bat Public RelatlOfls, American Bar Assoctallon, Chicago February 6, 1971 P 2 2 Betsy Ann Ptank Consumensm Communlcallon and lIle Amencan JudiCiary Speech belOl'e the Cow1S and Community COmmll1eeS Amencan Bar Associalion Washington DC AugUSt 4 1973. and The JudiCIary Needs a PR Progfam Public Relalion. Journal. Vol (August 1973) P 1 3 FOI' arttcles on publiC rei allons ancl puDhc Image see PhilliP Lesly (ed) Public Relallon. HandbOOk IEngle· wood ChITs NJ Prenllce·Hall Inc 197!} or Howald Stephenson (eel} Handbook 01 Public Relalion. (New York McGraw·HIIi Book Company 2nd !Xl 197tl and Morlon J Simon Public Relation. law (New YOI'k Ap. Qleton.(;enlury·Crons 19G91

Continued on page 84

for the people....

MERCANTILE BANK Jonesboro, Arkansas

MEMBER FDIC

come in and see why we are called..

CT'\

t-'Lea~er~

The Arkansas Lawyer

•

A Luxury We Can't Afford Anymore by John P. Gill The profession of law is probably man's most unique relationship. Certainly. it is one of the most unique. In today's vernacular. one must. un· doubtedly, refer to the practice of law as a "super" profession. I don't know of any other of man's relationships on this earth where one person is called upon to share the intimate relationships between a man and his wife in matrimonial discord. Or. where a man is given privy to guide the judgment of another man's business livelihood. A lawyer is entrusted with the correct distribution of a testator's entire worldly goods, and I know of no greater calling than for one man to go to another and say, "Will you draft my will? Will you see that my family, my loved ones. are cared for when I'm gone?" What greater trust can you put in another man than that? In addition, we are given the privilege of asking laymen to transform bodily injuries and pain into a dollar amount of money. What other profession offers one the opportunity of having such consequential discourse between human beings? I'm not sure how we acquired all that responsibility, but I think it is safe to say that we hOld it at the pleasure of the pUblic. The responsibility is en· trusted to us, as long as we keep the public trust. It is mandatory, therefore,

April, 1974

that we keep the public advised about how we lawyers operate. We can no longer afford the luxury of a magic or a mysticism about lawyers. There can· not be any mystery about how you and I perform au r professional responsibilities. Mystery does exist. however. Our language is most unusual. There are great numbers of laymen who hear us talk about "demurrers," and "res ipsa locquitur," and they understand that just about as much as I understand Swahili. We have a responsibility to communicate to our clients, to explain the actions of the legal system. Put yourself in the client's place. There he sits in the courtroom and all of a sudden, his lawyer, the man that's looking out for his rights, and the other lawyer, who is looking out for the other guy's rights, rise and approach the bench for a consu Itation with the judge, Or worse yet. they go into the judge's chambers and return for recess or dismissal. You and I know that a conference of this type is entirely proper and necessary for the efficient and orderly administration of justice. We know it is right, but the layman doesn't, and it is our obligation to inform him about why this parBcu lar transaction happens. I think we have an obligation to explain away some of the mystery about the system and bring the practice of

law down on the street. A great deal of dispelling the mystery of the profession has to do generally with a lawyer's individual public relations. He does it best with his own clients. For instance, a subject that he should always address himself to is on the question of fee. Surveys and statistics show that the area in which there is the most general misunderstanding between the client and his lawyer is in the area of fees. We have heard it said time and time again, "bring it out in the open. Tell the man how he's going to get charged, tell him what the basis of his fee is going to be and don't wait and give him any surprises at the end," There is a small booklet which is called the "Lawyer's Personal Public Relations KiL" pUblished by the American Bar Association, that is one of the finest pieces of literatur~ available to any practicing lawyer. It discusses many things which space does not permit me to cover, one of which is the importance of discussing fees on the front end. The client must know what we know. He must know how great this profession is and we must tell him. One of the greatest injuries to the images of attorneys is the whole question of lawyer discipline. Our image has to do in a large part with how often and how effectively the discipline

of the profession is enforced. But. what can we do to tell the pub· lic about tills profession that you and I love enough to give our entire lives to? The Public Information Committee of your State Bar Association has been given this massive responsibility with a budget of $3,000. Let me put that in perspective for you. The State Bar of Texas has a budget for public information of $200.000. The State of Missouri has allotted $25.000 just for salaries for a public information direc· tor and his staff. I believe the entire budget is around $40,000. Let me say basically that the question of public image and public information is an executive function. It must be discharged by the executives of the Bar, and not by the lawyers. Why? Because it's a day·to·day routine. a day-to-day obligation. There must be a public information director of the Arkansas Bar available for any member to call and say. "Look, we've got a problem! We need to make a response, and set someone straight."' When there is misconception we need someone who hasn't another thing in the world to do but drop what he"s do· ing and straighten out the misconception. We are lawyers, we're not public relations people or public information people. We have obligations to a client who wants our services, has paid for them, and is entitled to them. And I1'S difficult to tell that client to wait while we try to straighten out an image problem. l1's an executive function and we in Arkansas need that function fulfilled by a public information director, as it is in almost half of the states. But let's talk about what we are doing and what is involved in the whole question of public information. We have under study. and under draft, a booklet which lists the services lawyers perform. Because of poor public relations, lawyers have written off large areas of the law and let laymen perform them, Real estate closings, tax work and other areas that used to be performed by lawyers are no longer performed by us in part because the public doesn't know we do that sort of thing, You can't find a lawyer to draft a deed in Little Rock. Oh, you can get a lawyer if you ask him, but most of the people think deeds are drafted by abstract com· panies, And this is why it is important that we get a booklet out that informs the public of our services. Legal seminars. on such things as recent court decisions, ecology or other areas, need to be instituted in every county in the State of Arkansas. The State Bar of Missouri has just completed a pilot project in which

they brought in school professors and instructors and taught them something about the legal process. A speaker's bureau has been formed. and although it may be a small thing, it is necessary to provide adequate exposure. The question of internal communication among lawyers in Arkansas is something that has suffered to some degree in the past. but is can· tinually getting better. The Arkansas Lawyer, probably the finest Bar publication in America today, is a step in the right direction. I don't know how closely it is read. We have attempted to make it more readable by incorporating more information and exchange of ideas about what is being done, But this job, however. is done almost entirely by one person - the executive director, He has no staff to help implement that particular program. We have instituted what has been called the "Bar Communications System."' in which we report on the lawyers that are doing something, Cyril Hollingsworth of Little Rock is heading this particular committee, By writing Cyril and telling him what you are doing, he is able to use the information in the publication and prepare follow-up news releases. For the first time, the Arkansas Bar Association has been able to employ a draftsman for press releases. He has a degree in journalism and he has a law degree and he's been in practice. With his assistance, we have been able to get something in the state newspapers at least once a month and are working toward getting some information to the public about what lawyers are doing every two weeks. If you stop to think of the man-hours that have been put in criminal workshops, if you think of the man·hours lawyers have given free to try to improve the criminal justice system in

Arkansas, It IS staggering. It would be tragic if the publiC didn't know lawyers were dOing thiS. Why? What could possibly be in it for lawyers to improve the criminal justice system? Certainly not dollars In their pockets. They're doing it because it needs to be done and because they love the profession. We don't have to build any story, we don't have to create some story to tell what lawyers are doing, we just have to .. tell it like it is." We have now tor the very first time a procedure by which we can effectively cover Bar meetings. I'm talking about the full business - press kits, press rooms, press tables. We have a long way to go, but we're on our way to making sure the press knows what is happening, The image will take care of itself. We hope to institute within Law Day 74 a program that opens courthouses to the public, Last year we had a 30minute, prime·time television special the night before Law Day. In addition, a tour was conducted of the Pulaski County Court House in Little Rock, This year we should take the public into all Arkansas courthouses and let them view, first hand, what goes on in those cold buildings, Public service radio time is another example of what we've done. We've gotten tremendous mileage out of a set of tapes produced by our public relations people in Little Rock. In fact. the public affairs director of one of the five largest radio stations in Arkansas said that was the best set of public information tapes for free pu blic service time that he had ever received, In addition, we"ve taken some old American Bar TV tapes, placed an Arkansas Bar tag on them and sent them out. They cost $35 each once produced. It

Continued on page 99

John P, Gill is a partner in the Uttle Rock law firm of Spitzberg, Mitchell & Hays. He attend· ed Hendrix College and graduated lrom undergraduate and law school at Vanderbilt University. He is a former chairman of the Public Relations Committee of the Arkansas Bar Association and is presently a member of the House of Delegates and the Executive Council.

The Arkansas Lawyer

PRACTICE POINTERS under the new Rules of Bankruptcy Procedure

(Hopefu Ily, a guide through the maze) by Judge Charles W. Baker

On October 1, 1973 new Rules of Procedure for the Bankruptcy Courts became effective. They have made some significant changes and the past five months have been filled, much more than usual. with trying to explain to the members of the Bar, (most of whom are infrequent visitors to the Bankruptcy Court) what is required from a procedural point of view to present the contentions of the parties. This article is an attempt to cover a few of the most recurrent questions. There are new forms for the Petition for Voluntary Bankruptcy and for Wage Earner Plans under Chapter XIII. The forms are available from virtually all of the legal form printers in the state. The new forms are more

simple to understand. in my opinion, but they do require a good deal more information than was necessary previously. It seems that we are receiving more of the new petitions which are

April, 1974

not complete. It will behoove you to fill out the forms completely before fil路 ing because they are meticulously examined by the clerks of the Bankruptcy Court and the Bankruptcy Judge. If all of the information is not given, then you may have to file amendments: and. on occasions. when omissions are discovered shortly before the first meeting of creditors. it may be necessary to require you and your client to return to Court for a second time. Some of the common omissions are: a. listing of the property and its value which is collateral for a secured debt; b. listing of property on schedule lor property; even if it serves as co Ilateral: c. signing the petition by the attorney: d. itemization of the property claimed as exempt:

e. information regarding income tax refunds. An income tax refund is an asset of the bankrupt which must be listed and if the tax return for the past year has not been filed then the case should not be declared a non-asset case until the return has been filed and the information concerning it is disclosed: 1. disclosure of the attorney's fee arrangement: and g. failure to list the proposed payments to the various secured creditors in a Chapter XIII case. The most recurrent questions for attorneys in straight bankruptcy cases seem to be how to go about getting the return of their secured client's collateral. The old procedure was to file a Reclamation Petition which could usually be heard at the first meeting. The new rules have divided controversies into two basic types:

"Adversary Proceedings" and "Con· tested Matters." Rule 701 denomm· ates the following proceedings to be Adversar.y Proceedings: Proceeding to 1. recover money or property. other than proceeding under Rule 220 or Rule 604. 2. determine the validity. priority. or extent of a lien or other interest in property. 3. sell property free of a lien or other interest for which the holder can be compelled to take a money satisfaction, 4. object to or revoke a discharge. 5. obtain an injunction, other than injunctions effective as a matter of law, simultaneous with the fil· ing of the case, such as provided in rules 401. 601 section 11 a, 6. obtain relief from a stay as provided in Rule 401 or 601. or 7. determine the dischargeability of a debt. Since a Reclamation Petition (so called) would be a proceeding to recover property, it is classified as an Adversary Proceeding. This brings into playa whole series of rules start· ing with 701, which among other things, require the filing of a Com· plaint, the issuance of a summons and notice of trial. Technically a Reclamation Petition is now called a Com· plaint for Reclamation. Your secured party is the Plaintiff and the Defendants are everyone who has any interest in the collateral, including the Trustee or Receiver. An Adversary Proceeding is a trial for all practical purposes. Obviously, this is too time· consuming and expensive a proce· dure for most situations. There are ways to avoid all of this in most cases. First of all, non·asset cases do not require the appointment of a Trustee to collect and sell assets. In these non-asset cases, the interest of the Bankruptcy Court in the assets of the Bankrupt is abandoned by formal Or· der of the Court within a day or two after the first meeting of creditors. Upon the filing of that Order the secured creditor is free to proceed un· der state law to regain possession of his collateral as if Bankruptcy had not intervened. Secondly. in those cases where there are some assets and a Trustee is appointed, the easiest procedure is to informally ask the Trustee to seek an Order from the Court authorizing him to abandon and disclaim any interest in your client's collateral. Such a Trustee's petition is not an Adversary Proceeding and requires no notice. hearing or delay. It is suggested that this procedure can be speeded up if the attorney representing the secured

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

creditor prepares a Petition for signature and filing by the Trustee. which sets out the facts showing that there is no equity in the property for the benefit of general creditors and that the property is burdensome and shou Id be abandoned and also pre· pares a precedent for an Order of Abandonment. Then all the Trustee has to do, if he is agreeable, is to sign the Petition and forward it with the precedent for an Order of Abandon· ment to the Cou r1. Of course. if the Trustee thinks there is some equity in the property and refuses to abandon. then the proper procedure is for the secured creditor to bring a Complaint for Reclamation in accordance with Rule 701 et seq. Thirdly, if the issue raised by the Complaint tor Reclamation is primarily between the secured party and the Trustee. move the Court (per FRCP 8 (f) Rule 903) to treat the Adversary Proceedings as a Contested Matter. under Rule 914, and dispose of the matter forthwith. Another new rule which is likely to create trouble for secured creditors occurs in Chapter XIII proceedings. Rule 13-302 "Filing Proof of Claim (e) Time for Filing (1) Secured Claim." provides as follows: "A secured claim. whether or not listed in the Chapter XIII Statement. must be filed on or before the first date set for the first meeting of creditors in the Chapter XIII case unless the Court. on application before the expiration of that time and for cause shown. shall grant a reasonable. fixed extension of time. Any claim not properly

filed by the creditor within such time shall not be treated as a secured claim for pur· poses of voting and distribu· tion in the Chapter XIII case." This means that if the secured creditor does not file his claim. with supporting documents. by the first meeting of creditors. he will be treated as an unsecured creditor under the Plan, which means that the secured creditor will not receive any payments for at least six months after the first meeting. even if the proposed plan calls for payments to him. So be sure your secured creditor client files his claim at or before the first meeting of creditors. In the past there has been some confusion as to the title which should be used in addressing the presiding officer in the Bankruptcy Court. In the past his title was Referee in Bank· ruptcy. He is now designated "Bank· ruptcy JUdge." Rule 901 (7). The proper place lor the filing of pleadings. claims, petitions. etc .. has been the source of some confusion. The original Petition in all Bankruptcy cases should be filed with the District Clerk. Thereafter. all claims. pleadings. complaints. etc .. should be filed with the Bankruptcy Judge who IS handling the case. Our mailing ad· dress is P.O. Drawer 1899. Little Rock. Arkansas 72203 and we are located on the fourth floor of the U.S. Courthouse and Post Office. 600 Capitol Avenue. Little Rock, Arkansas. Until the new rules are tested by time and appellate decisions. It is likely that there Will be some differ· ences in interpretation among Bank· ruptcy Judges, and I hasten to point out that the views expressed herem are those of the author only. J.

The Arkansas Lawyer

Wage Earner Rehabi Iitation I

and the Impact of the New Bankruptcy Rules by

A. L. Tenney, Trustee, Chapter XIII Cases

The debtor-creditor relationship is as old as commerce itself. Perhaps the earliest reference to this relation· ship is recorded in Chapter 15, Verse 1, et seq., Book at Deuteronomy, the Old Testament. The historical plight of the debtor runs the gamut from penal exactitude to our modern rehabilita· fion statutes. The English Bankruptcy law treated the bankrupt as an evil person and one to be rooted out of society. The first Bankruptcy Act in the United States was patterned after the law of England and adopted the same attitude. Thus, historically, the filing of a bankruptcy case implied the demise of a business, the liquidation of its assets into cash, and distribution to creditors. This is not a valid assumption in the United States since the Chandler Act of 1938, whereby the Congress added the "chapter" provisions to the existing Act, which provide for rehabilitation, instead of liquidation, Viz: the Reorganization and Arrangements of corporations and businesses under Chapter X and XI; Real Property Arrangements by persons other than corporations un· der Chapter XII; Wage-Earner plans under Chapter XIII, etc. This paper is restricted to Chapter XIII, 11 U.S.C" section 1001, et seq. By this chapter, the Congress provided for the rehabilitation of an individual whose income is derived from wages, salary or commissions. Upon the filing April, 1974

of the case, creditors are enjoined from garnishing the wages. salary or commissions of the debtor or from repossessing his property or from any harassment. direct or indirect. It allows the debtor to keep his property on which there are liens. The Court may cancel contracts which are unnecessary to rehabilitation. The Bankruptcy Court is vested with the sale and exclusive jurisdiction of the debt· or and his property, wherever located, including future earnings; and the debtor is not subject to suit in any other Court. The use of Chapter XIII is in direct ratio to knowledge of its existence and provisions by individuals and at· torneys. Over 60% of all cases filed in Arkansas are of this type. Almost without exception, these plans provide for payment in full to all creditors. over an extended period of time. under the supervision of the Court. The Judicial Conference of the United States and the Bankruptcy Division of the Administrative Office of the United States Courts encourages the use of Chapter XIII in appropriate cases, as an alternative to straight bankruptcy. At the present time, there are about 1700 such cases pending in Arkansas which, in 1973, rendered payment to creditors in excess of $1,200,000.00. On October 1, 1973, new Bankruptcy Rules went into effect. includ· ing Rules 13-1 through 13-901, which

pertai n to Chapter X III. Most at these Rules merely reiterate existing procedure. but some provide for drastic change, so it is timely to discuss some of them. Rule 13·302 (e) - Time for filing (claims). This rule provides that a secured claim. whether or not listed in a Chapter XIII statement, shall be filed on or before the first meeting of creditors, unless the Court grants an extension of time before the first meeting of creditors. It further provides that a secured claim not filed within such time shall not be treated as a secured claim for purposes of voting and distribution. (Patterned after section 355 of Chapter XI; and for discussion see, Collier on Bankruptcy. Vol. 9, section 7.25(5), P. 97, et seq.) The rationale is that an early determination of secured claims is essential to confirmation and the distribution to creditors under the plan. If secured creditors file untimely, they may find they have jeopardized any rights to reclaim collateral subsequent to the confirmation of the plan. Rule 13-303 Filing Claims by Debtor or Trustee. This rule allows a debtor or the trustee to file a claim in the name of a creditor. The purpose of this rule is to reduce the possibility of the existence of non-dischargeable debts should a debfor later qualify for discharge under section 660 or section 661 at the Act.

Rule 13·307 Objection to and Allowance Claims, Valuation of Security. Sub-paragraph (d) of this rule requires the Court to determine the present value of the security and to allow the claim as secured to the extent of Its present value and as an unsecured claim for the remainder. This means, for example. that a

$1,000.00 claim secured by collateral

with a present value ot $500.00 will be allowed as secu red for $500.00 and unsecured for $500.00. It seems to follow that the contract payment on the secured portion of the claim should be reduced in a proportionate amount. Rule 13·401 Pelilion as auto· malic stay of acllons against debtor and at lien enforcement. By section 606(1) of the Act. 11 U.S.C. 1006. the Congress expressly provided that claims secured by real property shall not be included in a Chapter XIII case. However. the case law holds otherwise, if foreclosure would scuttle the plan. Two of the leading cases on this point stem from rulings by Bankruptcy Judge Arnold M. Adams and sustained on appeal by District Judges John E. Miller and J. Smith Henley, Viz: In Re: Pizzolato, 281 F. Supp. 109 (W.O. Ark. 1967): and In Re: Howard,

companies which are located acrosS the state lIne but are actually dOing bUSiness In Arkansas will be requlfed to meet the test of Arkansas Usury Laws. The new rules have also made new forms necessary In Chapter XIII cases. A sample completed Chapter XIII form follows. Most of the Items are self-ex· planatory. however some general comments may be helpful. Home payments may be Included under the plan. and It is probably to the best Interest of the debtor to do so. However. whether Included in the plan or not. the secured party may not commence action In any Court to foreclose. without permiSSion of the Bankruptcy Court. Section 611 of the Bank· ruptcy Act, 11 U.S.C. section 101l. Reduced contract rates to secured creditors may be proposed. The Court sends notice to the creditor of the proposal and the proof of claim provides a space for an acceptance or rejection. The new rules were controversial in their conception and no doubt in their interpretation: hence, the views herein expressed are those of the author only.

344 F. Supp. 1138 (E. O. Ark. 1971). These cases have been frequently Cited by appellate courts throughout the United States and In a large mea· sure are the baSIS for Rule 13-401. As a collateral matter. I Invite your attention also to In Re: Pizzolato, 268 F. Supp. 353 (W.O. Ark. 1967), wherein the power of the Bankruptcy Court to enJOin foreclosure of liens on per· sonal property was affirmatively deter· mined by JUdge Adams and sustained by Judge Miller. I commend your study of the above cases for the reason that all cases appealed from the Bankruptcy Court regarding Chapter XIII were mentioned and discussed. Rule 13·301 - Proof 01 Claim. This rule provides that a proof of claim shall consist of a writing setting forth facts showing that such claim is free from any charge forbidden by applicable law. This feature is unique in that it requires the creditor to prove lack of usury. rather than reqUIring the debtor to allege and prove usury as an affirmative defense. The rule expands the former requirement by substituting "charge forbidden" for "usury" and ··applicable law'· for ·'Iaws of the place where the debt is contracted." This provision could mean that loan

UNITED STAllS DlSTIICT COUll ~Olt lHE

Editor·s Note: A complete sample set of Chap. XIII forms begins on this page and continues on the next.

o\kMNS...

L\SHltS DlstMl<

WTI

ocn

I'\I~NIE

DEn,:

- ........ --___ _..- --,_ ..... --... - - ---- "--"._-"- ... ...._._--- ._--- --. ....... -...... -_ _._ _----_.....---_._...... -,.... _....a, . _._.. ..-". ---__. -.-.. _--- .... _--. ---..__. _-_ ..,- - ---, _ .. _...--_ . _ _.----.....---.-_............ ---_---._-- -. - .._._ _ .. __ --_.___.... -. -. . _...-....._ ..

--.

ORIGINAL I"£TmON .... 0 PlAN UND£I CHAl'lllt lUll

......

....

'::-

,-....

_~-

....

--_

............'

.... _

,.,

....

_ _ .... ,_.......... _,...

Mr. A. L. Tenney is a native of Independence County, Arkansas and received his BA from the University of Arkansas in 1951. He ;s a 1970 graduate of the Uttle Rock division of the University of Arkansas Law School. He has served as trustee of Debtor Estates since May ". 1962.

......

.... , _

:;':~7.:-:":"~: ..:::.~"i:::" "'.:: :""...::"~ ....... ....

•• _ _

F.b~u..y

_,_............. _"'-. _-.......__"....,,__'-_ -_.. __ . .... .............. _

.......... _ _

_o....<..

·...........

<>-

__ __ -

..---_ ...... _ _. ...-_ -.,. 1_ ...... _ _ . _ . ,

... - ,

...

00 _ . '0 . "......... _

,~~

_...

.. _ . .

.... .

.....

__ b __

.......

...-

.....

....

.....

- -

.._

..........

II 14

__ ._ .

, _,."",_ "':'"""....:-.;.""--;':..:'.:"_....": :;.:.:: =..::.:= ,............ _,,-' .... ~."

John Smith. Attorn., P~oh.. ion.1 Bulldln& Nor!h Linl. Rock. o\rk.n... 12114

The Arkansas Lawyer

~ ~

... ~

. " d! .. r'u

• ~~ ",

?:-

i t"ll'''' I ~ ~EE :1

l ~.:~;:~ I f1

",!i'~ I

I :

t r ~=- \ g

~r~

· -, ·

~~?'

~E~ r ,;; :~I

... ~'"

'i:.

•

~ ~.§' ~ ~ ~f

q ~

-j' - I •I!:;:::' I " l!:ii:'·

;e, 'I :;t"; :;8;; I ~ :: .. ~ ,: iO:if!, \1

~i! .. I

?~ ;1

~;:;! ~~ !~ ili !" IE .... ...... I' l 't ~ .. ~ IV. ;0.$1" lOP II • " <:> "<> ~I," I" ~~ . . . . . c !,o:d Hlo:!t

"0" ,

r'"

! 2

;

I:}' 1- ; <§

-j

!, !"

,"'t:;',;1

........"",• o ,

.- . ,.

r-l!, !: I

i 8 :1

, , 'I,

fI,~ ::1

.'... ·.1 ,_, 18 I

,.,...

j!l

~,~ ::1

,,0

;

r -i!ll "

II· ."

~!'

~.I"" i~ •

...

"""

.......

2:;'

g HH .. i~;~

:m -~'i ~~:

~~i

"'I' ~~~ r t~7

~i;l~

~~!

: 'u ~

H; ~ ~:~~ ,I, , •••

i!~

::l

:i~ "'I

;~ ~II

:-1 : vp_

;::~i~

~.~ .:

H ii ,;

,!; ~

E' --

IiU ~ r H!t' i

_'1

:1!

•

~"I" I 0

:.! ~

-; 2'

'il

;

. ~

~1 ~

l ,Ii

li!'1

-r~ !!!I, . :il

--++-H --+' r

~ I ~i ~o _~" e

I ~!

H ii

i J

~! :i

r;:

.,!",

-""

B~I

in'"

~~ ! i i i ." i;; ~~ iii :

Wi ~~~;

if ~ ; i I·~H

~ ~ g

, I, !

E I g ~

! J

'I'

H2 ,!1I . d;

-~-:

i· ;; ,p

~gg

ggg -----

g -1l

ml ....

ti,,,s'

Ilii"l .~ i :;!

l'! di !,

i ,,1

:.i" ~5i

C:i -

I'"

f.. .... j::;

ii' g g

Ii; :~~ i~'

III

•

i~i

j;:'

'''i ',' 'I I

hi: ov • ~

Iia

"j 'i

! 1\g

'I"~! Hi. ." H q I" jL ",i ~ i :=, ,i;; ;:'. !~ . ;," "":I, II' ~~~ ~~;'I: v: .~ ,.;- I faa

'f' :3

h'l ;'" P ~ • :z

!i .. ~ z;= ,~ ..i ~ m~~ "'!l' -. i a H~. ~~~;. EiE if .:". i:a ~t ~"I: ..... . ,• H " , , i' "i~ '"l;?, !I .[~ i, -~ •~ ~ ;1 'I" ' .. Ii , :is

~ ~;

0 ..

II"., ;:j' ;

i :

" h

1"': ,

I:;I'~,~ h· ~gH :;t \~:, l~ . H i:

Ii IHH , .• '1 1 '1

'l'i

~,I

'I! .....•.. , I., :~;i

~~ - ~ii' ~

; it

!:;::;:;:

- !

II_

"~-"I'I~~I~

, ,

.. n

I I

:.~

:;1

f-,' a

i~!j

-. . o

•

,g '"

~..

, _

,ll .!

ggg::;g'ggg

;;:;;l

:<' "" I'"

i ;a;

0""-..0

1. g~gg

.... I'" I....

"1. llil' II!

'",,,

OJ''

- . : ~ : I ),

I j!;

' ,

I. I' F

~ ~

\! ,;~ lJ !I!

.....

~: ~ :'f~·l· " ;i~";;"E. i~i

,f 1-"~

:~i

R "::r

"-., 'I i~ ~~.. ~2'(' "'-rp 'c

mm :;; III m

;;~~

;.,;~i ;.::, 'i. ~ nil=f

ih;p

! ~

••

~~r·

.,," II

;I:

ii, W ;;: ~i~

III !i d m II n

!lHil m

I ,i

~~~

!, !

i~ ~

~ ~ ~

J!tf'l': I

~i:

:I;

'i g '

III ~

'11

~i~ .'l~

"i Ii,

~8 ~

~~ ~ ! II, '

Ii '"

• i i

ll!l~ l~I!~;;!

H !~

z ......

l;~

0 0

~~~~! l ~i~~'l;,

~! ~

~~:;~.

I ! iI I" il :26' ""

•

~;1;!<!

li i ~:m ~ ~:: Wi ~ iii h

i,~::~ H ~ ~:! ~ ;·i ~ H i; i-~}: t:

I; " '-,

, § j

.:;: ~l

1 Ii ,

g;8~;'

j ,

••

;~ !'n,! ~~

g,:g

[;'

~:i

' 'II, r"

! ~

lie'" Ii L:~~

r~-

r,.

"i.

: 'II

Iif~

'~ ~j

~ ~

~il

n: ~

~; ll!

~ ~

'"I!

~ I'i

!~:~ ;~!

. . ~~

~ iii

il! ~

~Ig f~

I,,'

"'" I

.!'

~~II;! '~Il ;11;<> 1 'I ;;:' f A:

v,!!

:&a~~;

m H~ ~~: m ,'! H m H E~

£rl~

~ I

~~.~

or:!:;: 1 !, \ I

,, , ": '

n ! 'I II

~-----.l

t ..

i~~

~ ~.&.I>. ~i.' i F~~ i~:~ f ' ~;~:t ~ .8 1J! ~

.. '~:.:..; j~ i~

•

[... ~,::; g !:0 ,0 I;1 ~;, ' .. ~ t ., . . ;. -'I! :~I 'I. 'I i~ I;.

;

I _

~,g i

dl~ j!!;:1' I~:l

,n ,•

I I

:n~ ltl- !',' , " I' '! !'~;:~ -.:> I~!~ ;,'.~ i i. 'It I51 /8; j8 I l J ! i .i:

i ::

:.:

i:g

~-,-

i ihl H:I

II iH

: ~.

•

i~~

I I

n ~ : !~!-

It ~I ~

~ g

I......,!

~~:

~;~ ~i~

'!~H ~H~I~ ':n 1'1 U

I,,;:;

~~~ ~~~

~ z.~ O"'::r

! :': ''',",! ,. ! . !!~ i:

~~~ m

",,!II'

"1<: ..

1~~

~ !! 1

i:=g' •

Ii ~l

I, a

!; II .•

-, II it i

.i i

Ii i-

T _~ t ;:;:

i i

LAW DAY USA 1974 May lsI. 1974. IS not Lawyers Day. It is Law Day - a day for celebration of the law by and for the people. Even without religion. Henry Ward Beecher wrote, the preciousness of the laws and liberties of a great people would enkindle such an enthusiasm as to consume baser feelings. The purpose of Law Day is to annually rekindle such enthusiasm among the people of the nation. It was not conceived by Charles S. Rhyne in 1957 as a day to be observed within the profession by members of the profession. Rhyne. a Washington. D.C. lawyer. then president of the American Bar Association. said that the greatest strength of America lies in the concept of individual liberty under law. and he proudly proclaimed that no other system of government has produced the individual freedom which exists in America. He wanted America to celebrate the law, and the thousands of Law Day observances held annually are eloquent testimony that the nation's leaders in the fields of law, government and education share that purpose, Law Day 1973 in Arkansas was observed in every corner of the state. It saw the establishment by the Public Information Committee of the Arkansas Bar AssociatIOn of the Eagle Award for best Law Day observance by a small local bar assocIation and by a large local bar aSSOCiation. In recognition of the plannmg and execution of this program, Cyril Hollingsworth. 1973 State Law Day Chairman. received an Eagle, and appropriate credit was given Ron Robinson of Cranford/Johnson/Hunt & Associates for outstanding public relations services in connection with Law Day 1973. Probably in no year since 1958 when Law Day was officially established by presidential proclamation, nor in the years since 1961 when Congress by joint resolution formally desl9nated May 1st as Law Day USA. has there arisen a more spontaneous demand for the accomplishment of the purposes originally advanced for Law Day than exists today. Those purposes were: the advancement of equality and Justice under law; the encouragement of citlzen support of law; and the fostering of respect for law, and understanding of its essential place in the life of every citizen of the United States of America, This year on May first. the obser-

vance will agam be statewide in Arkansas through the efforts of local bar Law Day chairmen working with the Young Lawyers Section of the Arkansas Bar Association, the State Judicial Council. and the State Law Day Committee. Because the right theme and the right time have coincided, 1974 will be an outstanding year in the annals of Law Day USA. The theme is: YOUNG AMERICA. LEAD THE WAY Help Preserve Good Laws Help Change Bad Laws Help Make Better Laws.

ThiS year young people In the state and nation are realizing that their help IS not only needed. but sincerely sought. They are ready for the responsibility. If Law Day USA 1974 IS successfully executed. its sponsors will have helped create an informed and responsible young Arkansas and young America ready to assume the challenges of good citizenship extolled in Jean Jacques Rousseau's "The Social Contract" - "Good laws lead to the making of better ones: bad ones bong about worse. As soon as any man says of the affairs of the state. 'What does It matter to me?" the state may be given up for lost.'路 y#*

The Arkansas Lawyer

Colonel C. E. Ransick

ARKANSAS' UNSUNG HERO (Editor's Note: Since joining the Arkansas Bar Association as its Executive Direc~ for, Colonel Clarence Aansick has edited every edition of The Arkansas Lawyer. Until this one. In the absence of the Colonel's blue pencil, the editors seized this first opportunity to salute a man who is an outstanding tribute to the legal profession.) "He demonstrated those qualities of intellectual honesty. moral courage and balance which contribute to the making of an outstanding jUdge. His untiring efforts and dedicated devotion to duty greatly enhanced the administration of military justice within the Army.. ,.. Legion of Merit awarded by the President of the United States. 1968. That citation is one of more than 50 bestowed upon Colonel Clarence E. Ransick during his three careers. It was 1937. and a young Ohioan was just hanging out his shingle in Hamilton County. He had recently received his Bachelor of Laws degree from Salmon P. Chase Law School in Cincinnati and was eager to start practicing. Real estate and probate law were his preferences. And they were to be his specialties, with a tew minor criminal cases along the way. Those were his plans and things went well until World War II broke out. The draft changed those plans and abrupt路

April, 1974

Iy ended his first career. His initial assignment in the U.S. Army was instructing officer candidates in some 20 sUbjects. one of them military law. A military wedding also took place about this time when Ransick married his wife, Clarine. Within the short space of two years. he was provost marshal and security intelligence officer at a large army ordnance depot with the responsibility of direction and training of a 125-man civilian guard complement, three detectives and a military police unit of about 150 men. Here he received the Army Commendation Medal for his leadersh ip. By 1945, he had become a legal writer, marshalling facts. summarizing them. applying pertinent law and regulations and making recommendations or handing down decisions. Then another disaster changed his course. On April 16 and 17, 1947, explosives and fires leveled Texas City, Texas. As a result. the United States

government haf:t hundreds of claims to be settled. Lieutenant Colonel Clarence E. Ransick was named Assistant Chief, Texas City Claims Branch. Office of the Judge Advocate General, Fort Holabird, Maryland, He approved over one hundred claims for payment of over 52 million, and his work was rewarded with another Army Commendation Medal with First Oak Leaf Cluster. That citation read: "By his dedicated efJorts and skillful utiliza路 tion of his manifold talents. Lieutenant Colonel Ransick contributed in a major degree to the prompt and efficient accomplishment of the unique. unprecedented mission. " With this assignment successfully completed. he became a maritime law specialist. schooling himself in this special field at Tulane Law School and processing all types of maritime claims and contracts. Mission accomplished. His next move up the military chain of, command was to Chief Legal 01-

flcer He was responsible for command administration of military Justice In seven major Army commands. While fUlfilling this assignment In Germany. he established a Brigade Preventive Law Program for which he was given the Legion of Merit award. The Citation tells the story "Colonel Clarence E. Ranslck. Judge Advocate General's Corps distInguished hImself by outstanding performance of duty while serving as Staff Judge Advocate. 32d Artillery Brigade. United States Army. Europe, from March, 1964 to February, 1966. During this period Colonel RanSlck Instlluted policies and procedures which provided superior legal service and advice for members of the Brigade as well as non-Brigade units located In the Palatinate District. The regulatIOns. guidance letters and directives prepared and distributed to commanders on all levels demonstrated his comprehensive knowledge of all facets of legal mailers. His active In路 terest in providing extensive legal services to the military personnel. their dependents and commanders prompted the initiatIOn and development of the Brigade Preventive Law Program .. The Preventive Law Program broadened the scope of legal assistance to personnel and their dependents. which resulted in a reduction of the Brigade's courts路martial Incidence by one-Ihird and a workload of 600 cases per month for his section on all phases 01 legal advice. The reaction and use of the program by commanders and personnel reflect highly on Colonel Ransick's encompassing coverage of legal problems facing members of the military community and procedures for solving them before more serious difficulties could arise At about the same time. he was also honored with an Army Commendation Medal with Second Oak Leaf Cluster for hiS Confinement and Clemency Program. With diligence and outstanding leadership the hallmarks of his military career. it might have been expected that Colonel Ransick would eventually reach the U.S. Army's highe.,t appellate tribunal. He did in 1966. That year he was named Chief Judge and given the responsibility of determining the legal sufficiency of records of courts-martial trials and appropriateness of sentences, His brilliant work brought yet another citation: his second Legion of Merit with Oak Leaf Cluster. By 1968, Colonel Ransick had become one of the Army's most decorated Judge Advocates and with that distinguished record he retired from

an IllustrioUS military career that spanned 27 eventful years. It was a happy cOincidence that in the same year the Arkansas Bar Association was In search of an ExecutIve Director. J. Gaston Williamson. then assoclatton president. was leadmg the search. He contacted Army Judge Advocate General Kenneth Hodson and Hodson gave him the names of the three most qualIfied persons he could think of. One of them was Colonel Clarence Ransick. At the time Colonel Ransick and his family moved to Arkansas in January. 1969. the Colonel said he knew only one Arkansan. WhJle servmg as Port Judge Advocate at the New Orleans Pori of Embarkation. JUdge Tom Butt had been his mobilization deSignee. which meant that if a war erupted Judge Butt would take over the New Orleans Port while the Colonel would take off for overseas. Ransick later learned that he had served with three other Arkansas lawyers. Joe Woodward and Bill Eldredge were with him at Fort Bliss and Hugh Overholt was the Colonel's Chief of Military Justice in the Seventh Army Command in Mannheim. Germany. In the years since the Ransicks moved to Arkansas. the place where he thought he knew but one person has become home and a host of friends with whom he works and plays

his two favorite games. golf and bridge. The Ranslck's oldest daughter IS married and living In Germany They have another daughter now In the ninth grade. a son In high school and three sons In college So the family IS now well-oriented to Little Rock And the man who hung out his shingle In OhIO In 1937 IS today an unsung hero In Arkansas.

-'.

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

The Arkansas Lawyer

â&#x20AC;˘ , .'

Fact Or Fad?

The Legal Professional Corporation in Arkansas by George N. Plasliras and Harvey L. Bell

This article is directed to you. a practicing attorney in Arkansas. for

Before reading further, it is requested that you extract a professionally

your consideration. Hopelu liy. it' wili

earned one dollar bill from your wallet and place this biil adjacent to this

be useful for you to determine whether you should incorporate your legal practice or continue your present form of doing business. Traditionally. the practicing attorney has operated as a sale proprietor or a partner. So much so, that some attorneys will not even consider any alternates. It is our view that the Legal Professional Corporation ('"LPC") is here to stay: it does have merit for many

reading material so that it will be easily viewed at a glance. Now, let's define your dollar so that it is understood in its economic perspective that is. what it can buy for you at this time, II your dollar instead represented an Interest payment received by you on a non-taxable municipal bond. then II would be accurate in most cases to say that your dollar had one

bracket. your dollar contains only 64c of buying power, Under this analysis,

we quickly realize that we all possess different kinds of dollars and must first understand our dollar before we can evaluate its economic worth, Con-

ceptually. the LPG is a springboard whereby one may in certain cases

jump from the 64c dollar into the 100c pool however, the pool is both shallow and deep so that it is receptive only to the informed swimmer.

On August 8. 1969. because of obvious unanimity in the federal courts

practitioners and perhaps you; and

hundred cents worth of buying power;

upholding the professional associa-

yes. you shou Id consider it. Why? The answer is money, and more particularly. your money.

on the other hand. since your dollar was received for services rendered and you are in the 36% income tax

tion as a taxable entity, the Treasury Department relinquished its position and formally announced professional

April, 1974

l corporation recognition. Four months later, the Arkansas Supreme Court entered its Order authorizing attorneys to practice law as an employee of a duly organized LPC and. on March 2. 1970. the IRS jssued a revenue ruling which recognized the Medical. Dental and Professional Corporation Acts of Arkansas. During and after such evolution. the number of Articles of Incorporation annually filed for Arkansas LPC's were as follows: two in 1969; two in 1970; five in 1971; five in 1972; and. seventeen in 1973 (approximately five of which appear to be end of year filings for a 1974 practice). At the date of this writing. there are approximately thirty-two Arkansas LPC·s. What IS an LPC? 1t IS a corporation (albeit with certain limitations) in which you the attorney would be a shareholder. director. officer and professional employee. Consequently. it affords the opportunity for different economic arrangements that may not be available to the partnership or the sole proprietor. It is the favorable tax structuring. however, which provides the essential attraction. QUALIFIED RETIREMENT PLAN The most often promoted attribute of the LPC is the fact that it can adopt a Qualified Retirement Plan. A Qualified Retirement Plan is a conduit whereby you may obtain present 100c use of a particular dollar plus the growth on this dollar tax-free until: (1) your retirement: (2) your disability; or (3) your death. Compare thiS to the 64c dollar which you have put to work for you In a saving account, the earnings on which are also being taxed. In other words. normally the dollar contributed to a Qualified Retirement Plan is wholly deducllble to the taxpayer LPC In the year of contribution but is not taxable at that time to the professional employee and neither are the earnings, growth. Interest or compounded earnings over the years while the funds are held In the Plan. ThiS tax deferral concept is obviously not the same for an individual taxpayer's personal investments that yield annual interest such as your savings account. The advantages of such a Qualified Retirement Plan can be illustrated by the following example: Assume you are married and have a 525,000 taxable income and are in the 36% tax bracket. If you placed 10"10 or $2.500 in a Qualified Retirement Plan. then you would have reduced your taxable income to 522.500 which computes to taxes of $5.180 and a balance of 517,320 after tax spendable income. On the other hand. jf you did not have a Qualified Retirement Plan. then in 82

order to place 52.500 In a savings program you wou Id need S3.960 of taxable Income. Your spendable income under the same Circumstances wou Id be 516,480 ($25.000 less $6.020 taxes and S2.500 placed In savings). Of course, monies distributed by the Plan are subject to taxation when withdrawn. However. upon retirement or disability. you would normally be in a lower or possibly nominal tax bracket. Cash in the Qualified Retirement Plan can be Invested In several types or combinations of investments: accordingly. the yield, earnings, growth. Interest or losses depend on the Investment. For example, such funds may be Invested as follows: (1) In common trust funds; (2) In life insurance; (3) In stocks. bonds and bills; (4) In real estate; or. (5) In a combination of these plus others under certain IRS rules. It is staggering to compute the potential growth from investments held for a long duration with earning thereon compounded tax free. For example. 52.500 invested annually at a 6% growth rate will yield S197.645 at the end of thirty years ($75.000 actual contribution). Though Qualified Retirement Plans are available for both the LPC ("Corporate Plan") and the self-employed ("HR-10" or "Keogh Plans"). a Corporate Plan and an HR-10 plan are significantly different. The Corporate Plan permits higher contributions (up to 25% of each profeSSional employee's compensatlon) than the HR-1O plan which presently permits 10% or $2.500 of annual salary. whichever IS less However, Congress is conSidering Increasing thiS amount to S7.500. HR-10 imposes less flexible rules on employee membership. on

vesting of contributions and on ages for distributIOns On the other hand. the Corporate Plan permits exclUSion of certain employees from such plan (at less expense) and a gradual or long vesting schedule to encourage employee retentIOn (at further less ex· pense) and more fleXIbility as to diStribution prOVISions Generally speakIng. the Corporate Plan IS a tallormade document With a great degree at fleXibility and the HR-lO IS a rigid document. MEDICAL PLAN Probably the second most important economiC aspect of the LPC is the Medical Expense Retmbursement Plan ("Medlcal Plan"). ThiS IS because most profeSSionals are unable to Significantly uttllze medical expense deductions In their tax bracket. An unIncorporated practitIOner seldom exceeds the 3% of adjusted gross income medical deduction expense and thus loses any deduction for such expenses. Conversely. a professional employee can be covered under a Medical Plan whereby the LPC can payor reimburse hIm for medical expenses Incurred by the professional employee, and his spouse and dependents - which brings us back to the lODc dollars. To illustrate: Unincorporated Mr. Lawyer has an adjusted gross income of $40.000. His family's medical expenses for the year include $325 for drugs. 5320 for medical Insurance and S1.500 for doctors. dentists. eye-glasses, etc. Mr. Lawyer's medical deduction for the year IS only S620 (note that the S1.525 balance IS not deducflble). On the other hand. Incorporated Mr. Attorney has the Identical facts except he has a Medical Plan. Mr. Attorney's employer. the LPC, reim-

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

The Arkansas Lawyer

burses him $2,145 for his medical expenses which Mr. Attorney puts back in his pocket, tax-free and the LPG deducts the total $2,145 reimbursement. OTHER ECONOMIC CONSIDERATIONS There are many other frequently cited economic reasons to consider incorporation. but fundamentally each one is related to the economic centdollar concept. Some other important considerations are: (1) As a professional employee you may receive up to $50,000 of group term life insurance ("Group Life") fax free and the premiums are deductible as an expense fa fhe LPG. Also, Group Life insurance is particularly attractive where the LPG can qualify and thereby include a member who may otherwise be uninsurable. In addition. Group Life insurance can be assigned thereby making it a valuable estate planning tool. Arkansas presently permits the purchase of up to $100,000 Group Life; however. the cost of coverage above $50.000 is at a slight tax cost to the professional employee. (2) As a corporate employee's survivor, your wife may be paid a death benefit of up to a maximum of $5,000 which is not income to her and the cost is a deduction to the LPG. (3) Under current tax law, corporations are taxed at 22% on the first $25,000 of taxable income and 48% of amounts in excess thereof. Suppose a new office is desired. It can be advantageous to accumulate dollars taxed at 22% in order to obtain funds for expansion

April, 1974

rather than tak ing personal after tax dollars to do this, which are generally taxed at a higher rate. However, before deciding to use that approach, it is wise to analyze the IRG rules on accumulated earnings. (4) Disability income insu rance of a professional employee is deductible to the LPG. However, the disability income received would be treated as income to the lawyer-employee, except for the $100 per week exclusion. Further. this would alleviate the LPG of payments while the attorney is non-productive and relieve the burden on the remaining attorneys. (5) A corporation can have a fiscal year rather than a calendar tax year. This permits flexibility on both the initial year (which can be less than 12 months) and on subsequent years. For example. a professional employee might receive his end of year bonus on December 31 or on January 1. One way it is taxable in the December calendar year and the other way it is taxable in the January year. Such flexibility is normally unavailable to the private practitioner who has to pay income tax on income in the calendar year of receipt. OTHER FACTORS The LPG is not to be evaluated solely on its economic aspects because there are non-economic facets which may encou rage or deter a decision toward incorporation. These are: (1) flexibility in transfer of interests; (2) perpetual existence; (3) a degree of limited liability; and, (4) centralization of management and operation.

Any attorney who has undergone the expansion or contraction of a partnership can most likely bear witness that the LPG's transfer of a stock certificate pursuant to a pre-arranged agreement can be both economically and emotionally easier to accomplish than dissolving a partnership. The partnership, unless otherwise arranged (some attorneys occasionally procrastinate as to their own affairs) faces the legal tax formalities required to administer and value a deceased partner's interest in the partnership which can be time-consuming and complicated. On the other hand. the expansion or contraction of an LPG can be accomplished by the transfer of stock certificates which are restricted as to transferability and which also have a pre-arranged "fair price." Furthermore, initial incorporators may design the LPG where they can maintain voting control through the use of voting and non-voting stock or disproportionate voting stock. This aspect is comparable to managing partners of a large law firm whose counterpart would be the board of directors of the LPG. As a corporation. the LPG is subject to all the rules of liquidations. mergers, reorganizations. etc. The LPG has the framework for perpetual existence. The ethics rules establish guidelines for retention of names of deceased shareholders; however, the removal or addition of a name to the LPG only involves the filing of amended Articles for Name Ghange. A partnership is not perpetual under the law. Whenever a partner dies or a specified amount of partnership assets are sold, then the tax law requires valuation of the partnership and recognition of gains or losses of each partner's interest. This can present difficult obstacles in some situations. Most attorneys comfortably understand joint and several liability. Each partner is liable for the acts of anyone other partner in the course of his authority. On the other hand. shareholders are not liable for the acts of other shareholders. The shareholder owners of the LPG are individually responsible for their professional conduct and the LPG as employer is responsible under master-servant rules. Accordingly. the professional employees who are shareholders are not jointly liable for each other's professional conduct although an undercapitalized LPG would quickly run afoul of ethical responsibilities if used as a shield to avoid liabilities for failing to meet professional standards. This view of limited liability is often cited, but as a practical matter, legal malpractice seldom arises and

generally speaking. the reputation of the LPC would suffer even if there exists a degree of professional limited liability. Quarterly estimates for federal income taxes seem to be a dilemma to many practitioners. This results because of both the "paper work" aspect and because accurate computa· tions of professional fees in a fluctuating law practice are normally difficult. As an LPC professional employee. taxes are withheld from each compensation check whether paid as a salary or as a bonus. A system of a set salary plus a percentage of collected billings combined with discretionary bonuses can provide the LPG with flexibIlity and can serve to level salaries from law practice. One further badge of adaptability needs exposure - unless the professional employee has other significant income. he can reasonably be assured that he will not have to obtain funds at the end of the year to pay his taxes because his approximate taxes have been withheld from his wages. NEGATIVE FACTORS Objectivity would suffer an injustice if the unattractive aspects of the LPG were not also reviewed. The LPG is a separate taxable entity under both state and federal law. A partnership is a separate entity but it merely files an information return and it does not pay income taxes. As a separate entity. the LPC is subject to the double taxation argument and generally costs more to operate. A corporation is taxed on its earnIngs and its shareholders are taxed on dividends paid to them from the previously taxed corporate earnings. Such is the double taxation problem: however. it IS not an unsolvable situation. Many closed corporations in years past have not been challenged as to small corporate earnings which resulted partly from employee salaries as long as such salaries were reasonable. Simply staled, unless the LPG has Sizeable capital Investments or other peculiar facets, the profeSSIOnal employees' salaries Will generally be of such a nature that the LPG wtll have InSignificant profits and small dividends. It must be stated that the antiCipated Ilnal outcome of this view is predictable only with certain reservatIOns because mtnimal case law eXists which clearly establishes reasonable compensation for a pr.ofessional. Gostwise, it is generally agreed that the LPC is somewhat more expensive to operate and administer than other practices. This is partly due to: (1) an· nual franchise taxes: (2) initial $25.00 license with subsequent $10.00 an-

nual renewal: (3) increased FICA and unemployment tax: and, (4) tangent additional paper work such as cor· porate tax returns instead of a partnership return and preparation of corporate documents such as minutes. Furthermore, the lOOc dollars do have their cost. e.g .. in order to obtain the deferred taxation on Qualified Retire· ment Plan contributions for HR-10 or corporate plans, contributions are also necessary for all employees. nonprofessional as well as professionaL While this cost can be adjusted by lower salaries, integrating contributions to social security, and vesting schedules. such aspect cannot be Ignored. Other "fnnge benefits" for employees require a similar analysis: however, It must be correspondingly recognized that employee morale, loyalty and retention have both tangible and intangible value which arise from providing these benefits, One last caveat deserves exposure: there are other alternatives to incorporating the professional practice. For example. investments in tax shelters such as cattle, depreciable real estate. falms. timber and oil and gas. If you the professional have time, talent and composure to get involved in such transactions. then you may want to ac· cept such posture: however, each practitioner has to evaluate what degree of business venture vs. professional practice is adaptable to him. The LPG is not a universal salvation to the practitioner; each attorney must consider his own personal situation.

However, upon close examination, there are growing numbers who believe their economic foot can comfortably fit inlo the LPC shoe. While such conduit for the practice of a professional may offer the key to better economic dollars, more mileage with an equally comfortable ride can be achieved only if the LPG shoe fits. It is hoped that these comments will have demonstrated that the LPG is a viable alternative for you to consider. Hopefully it can place the professional man on similar economic footing as the business executive both during active employment and upon retirement or disability. :I, Continued trom page 70

10 11

12 13 \~

I';'

Part II a ma,I.ou1 queshonnalfe 10 the enhre memberst"p 01 the Ark,ansas Bal AsSOClallon ....'11 prOVIde lhe pelcep hon 01 lawyers to....ald lhelr own prott'SSlon 11 ... <11 seNe as a oasas 01 compar,son 01 data Irom the publIC aoa pro IessJonal sampleS II Sl'IOold be noled lhal IhP over 100 lImes a year was a response gillen by 11 reallOl' wtIO OOV!ously makes eJllen SlYe use 01 legal servoces A.s ,oa,caled lhe moSI Ir€quem response was lw,ce a year .... ,:h a lew respondenlS S3y1ng lhey had used legal servoces as many as live to l... enty love tomes a yea, M,ssoufl Bar Prenl'ceHall Survey A Motivation.1 Study 01 Public Attitude, and Law Ollie. Mlnagernenl (The M,ssourl Bar 1%31 pp 77.7'9 Ibid. P jO Juhan B Rouer and Donald 0 Ste,n PubliC Alhtudes Toward lIle TrUStworlh,ness Competence and AluulsrTl 01 Twenty selected OCcupahonS Journal 01 Applied SOcial P,ychology. Vol 1 (March 197tl p 335 my em phas,s The M,ssoun Bar op. ell" pp ~1-1J Roner.and Stein op. cil" pp JJ9..lt Tne M,ssour' Bar op. cit., OO.{;l see especially tables ';'-1 tnrougn 5-K See W,lham Buchan(ln Underst.nding Polilical Variable, INrw York CharleS SCribner 50 Sons 19691 pp 8S 88 lOr 11 bnel but undcrSlllndable d'scuss,on 01 th's lest 01 s,gnllicance

The Arkansas Lawyer

Representation of Criminal Indigents â&#x20AC;˘ Arkansas The Public Defender In by Don Langston Sebastian County Public Defender Who should represent persons charged with criminal acts in ArkanÂˇ sas who cannot afford their own private attorney, appointed private attorneys or public defenders? The purpose of this paper is to point out the advantages of a public defender system over an appointive system of

assignment of counsel in Arkansas and recommend that system for the entire state. An accused charged with a crime has the righ't to counsel. Powell Y. Alabama, 287 U.S. 45. Amendment 6 to the United States Constitution and Ark. Const. Art. 2 Sec. 10 provide that in all criminal prosecutions the accused shall enjoy the right to have the assistance of counsel for his defense. See 21 Am.Jur. 2d, Criminal Law, Sec. 318. P. 347. If the accused cannot afford his own privately retained counsel he is entitled to the appointment of an attorney. Gideon v. Wainwright, 372 U.S. 335. The pertinent statute concerning assignment of counsel in Arkansas is Ark. Stat. Ann. Sec. 43-1203. It provides that if any person about to be arraigned upon an indictment for a felony be without counsel to conduct his defense. and shall be unable to employ any, it shall be the duty of the court to assign counsel at his request. In other words. the appointive system of assignment of counsel. The appointive system of assignment of counsel under the provisions of the above statute varied in its operation as much as there were number 01 judicial districts. Under this statute, an attorney was not appointed until arraignment of the defendant. Usually. the defendant would appear before the court standing alone and the court would inquire concerning counsel immediately after the charge was read to him and he was asked if he understood the charge. If the defendant advised the cou rt that he did not have counsel. the court would make further inquiry to see if he intended to employ any. If the defendant then told the court that he did not have funds with which to hire counsel. the court would appoint him counsel at that lime or advise him that he would be notified when counsel was apPointed. In some instances, no further inquiry was made as to money April, 1974

and property with which to hire an attorney. Perhaps the financial status 01 the defendant was previously known to the court: ordinarily. however, further inquiry was made into the financial status of the defendant prior to the appointment of counsel. Then. when it was determined by the court that the defendant was unable to employ an attorney, one or more would be appointed for him under the provision of Ark. Stat. Ann. Sec. 43-1203. The method by which a particular attorney was assigned varied from judicial district to jUdicial district. Some of the appointments were made the following ways: 1. A few attorneys among many attorneys of the local bar association regularly practiced criminal law and these attorneys were usually the only attorneys who appeared at plea and arraignment sessions. The assignments of counsel were made from these attending attorneys on that day. 2. Some courts kept a list of every practicing member of the local bar and made assignments of counsel on a rotating basis from this list. Counsel was usually assigned by letter. (The Federal Courts also used and still use this method.) 3. Some cou rts assigned the least experienced attorneys from the local bar as appointed counsel. 4. If the case appeared to be serious and complex, the court would assign an experienced attorney as counsel and an inexperienced attorney to assist him. 5. Other methods that will not be described herein, Obviously. these different methods of assignment of counsel under Sec, 43-1203 affect the rights of the defendant In various ways throughout the judicial districts of Arkansas. In some districts. he will receive effective assistance of counsel and in others not so effective, There are also other disadvantages to a defendant. These being (1) several critical stages of his case will pass without counsel prior to the assignment at arraignment. and (2) the defendant is not entitled to counsel for misdemeanors. A discussion of these two disadv;;intages is appropriate. (1) Critical stages disadvantage. If a defendant is assigned counsel at arraignment in Circuit Court. he has been without counsel usually through

several important critical stages of his case, These stages could be that he has been interrogated by the police without counsel. has been in a lineup without counsel. and has been arraigned in the examining court and has had a preliminary hearing without counsel. Although the case is not directly in point, the language contained in it is appropriate to thrs discussion. In Davis v. Stevens, 326 F, Supp. 1182 (D.C. N.Y. 1971), the court stated that the basic right to representation by counsel in criminal proceedings extends itself to every stage of the proceedings, formal or informal. in court or out. where counsel's absence might derogate from the accused's right to a fair trial. See also Childs v. Cardwell, 320 F. Supp. 1365 (D.C. Ohio, 1970), wherein the court said a critical stage in a criminal proceeding consists of any confrontation between the accused and authorities in which defenses are waived or lost. or rights prejudiced. American Bar Association Standard 5.1 (Providing Defense Services) recommends that counsel should be provided at every critical stage of the proceedings and emphasizes the importance of early appointment. Obviously Ark. Stat. Ann. Sec. 43-1203 does nol meet this test as the earliest that appointment can be made is arraignment in Circuit Court after several critical stages of the case have passed. (2) Misdemeanor disadvantage. The above statute only applied in felonies. A defendant was not entitled to counsel on a misdemeanor even if he could suffer punishment up to a year in jail. See Winters v. Beck, 239 Ark. 1151, 397 SW.2d 364, Cer!. denied 385 U.S. 907 and Cableton v. State, 243 Ark. 351. 420 SW. 2d 534. However. the statute would not hold up In the face of later proceedings in the Winters' case Supra. Winters v, Beck, 281 F. Supp. 193 (D.C. Ark. 1968). affirmed Beck v. Winters, 407 F. 2d 125 (8th Cir. 1969). Cert. denied 395 U.S. 963. The Federal District Court held that a defendant charged With a serious misdemeanor (usually defined as 6 months in jail. fine of $500.00 or both) was entitled to appointed counsel. This holding was further extended by the decision in Argersinger v. Hamlin, 407 U.S. 25 (1972). wherein the court

held that a defendant was entitled to appOinted counsel when he may suffer even one day In Jail lor a misdemeanor Amencan Bar Association Standard 41 provides that counsel should be appointed In all crimInal proceedings for offenses punishable by loss of liberty, except those types of offense for which such punishment IS not likely to be Imposed. regardless of their denomination as felonies. misdemeanors. or otherwIse These disadvantages were so acute that It was decided that something had to be done, Some of the Judicial districts now have what are called the defender system of assignment of counsel Under thiS system a full time public defender IS appointed for the district and the courts then assign the public defender 10 represent persons who cannot afford their own attorney There IS presently no statute provld路 Ing for a public defender In Arkansas. These offices have been created In thiS state pursuant to the authority of the Omnibus Crime Control And Safe Streets Act of 1968 passed by the Uniled States Congress. 1 he pro-

grams have been set up as pilot programs under thiS law through grants of federal funds admInistered by the Arkansas Commission on Cnme and Law Enforcement These federal funds have usually been matched on a 25 0 0 baSIS by the affected counties These pdot programs were put Into operation to determine whether Arkansas should convert entirely to the defender system of assignment of counsel In other words. the funding would remain the same for a few years to see If these programs Improved the administration of Justice, and if they did. an ellort would be made to persuade the Arkansas General Assembly to enact a public defender bill to provide a program for the entire state The first defender program was provided In 1971 In the Twelflh Judicial Dlstnct (Sebastian County) Subse quently, programs were made avall able In the SIxth Judicial District (Pulaski and Perry Counties). the Fourth Judicial District (Washington County), Fourteenth JudIcial District (Boone. Marlon. Newton. Searcy. Van Buren and Cleburne Counties) and for 4

MISSISSiPPi County alone Each of these pilot programs 15 different (although there are Similarities) These programs are governed by gUidelines set forth In the grant awards from the Arkansas Crime Commission and gUidelines established locally by practice because there IS no statutory authOrity for a publiC defender As was stated above these five programs are operating With various dlf ferences The more ambitiOUS programs operate baSically as follows: 1 Felonies There are various sta9 es of these offenses at which the public defender Will be appointed (a) lineup The authOrities have been nottlled to adVise the public defender to be present when an accused IS to be viewed In a lineup and IS unable to employ counsel In order to satisfy the requirements of Kirby v. Illinois, 406 US 682 (1971) If the accused deSires the assistance of the publiC defender. he will attend to protect the accused's nghts at the lineup. (b) Interrogation. If the police are interrogating an accused and he deSires the presence of 4

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

The Arkansas Lawyer

appointed counsel prior to answering questions under the provisions of Miranda Y. Arizona, 394 U.S. 436 (1966) the public defender is called by the authorities. The public defender then advises the accused prior to any questioning. (c) Preliminary Hearing. At arraignment in Municipal Court if the person cannot afford counsel, the public defender is appointed by the examining judge to represent the accused at the preliminary hearing. If the accused is bound over to Circuit Court. that court ratifies the examining court's appointment and the public defender continues to represent the accused in Circuit Court and thereafter. (d) Arraignment. If charges are filed direct in Circuit Court and the public defender has not previously been assigned the case, the appointment is made at this point after inquiry as to financial ability. 2. Misdemeanors. In order to satisfy the holding in Argersinger v. Hamlin, Supra, a member of the public defender staff attends each session of Municipal Court and. if an eligible person desires counsel. a public defender is appointed in court that day after inquiry about financial ability. The case is tried that day or, if it is complex or witnesses need to be called. the case is continued. Appointments in misdemeanors are made only in this way for obvious reasons. To do it otherwise would be chaotic. As can be seen, these public defender programs. as implemented, have solved the main disadvantages of the appointive system. The public defender should be effective counsel as he would be a full-time criminal defense lawyer and should acquire more expertise in that phase of the law than the general private practitioner. Fur路 ther, the programs provide for early appointments in felonies and representation in misdemeanor cases. The above described implementation of the public defender programs in Arkansas follows closely the provisions of House Bill 677 of the 1971 General Assembly which provided for a public defender system. This bill passed the House but not the Senate. The grant awards from the Crime Commission for public defender programs provided that the programs follow the provisions of House Bill 677 as closely as possible. This bill is taken in large part from the Uniform Laws Commissioner's Model Public Defender Act. The differences in the two will not be discussed herein. As related above. the pilot public defender programs are funded by the Crime Commission. Because they are pilot programs, provisions for funding them are provided only until 1975. If

April, 1974

the General Assembly does not provide for defender systems during the 1975 regular session, then the programs will cease to be pilot programs and the Crime Commission will have to decide what, if any, assistance it will give for defense services in the future. The 1975 General Assembly should pass a defender act for Arkansas to make defense services uniform for the entire state. It should provide for state funding to help local governmental units provide adequate defense services for the poor. Everyone concerned is convinced that the pilot public defender programs that are in effect clearly show that there is a need for a pUblic defender system to provide adequate defense services for the poor. (This article has been written on the premise that the person is indigent and cannot

afford his own counsel). The poor need representation at every critical stage of the proceeding as much as the affluent; the poor need representation on misdemeanor offenses as much as the rich: the poor need effective counsel as much as the person who can afford his own: and the poor need their rights protected as much as do persons who can employ their own attorney. The appointive system cannot provide these services. The defender system can. The State of Arkansas needs a public defender system approximating House Bill 677 of 1971. If the Arkansas General Assembly does not enact adequate legislation to cover the sUbject. and fund it adequately, it could deteriorate into a haphazard system. or perhaps, it will be taken away from the state and administered by others. J-

He says he has no federal practice

Maybe he's changed professions, Roy

There is no way the citizen, whatever he pursues, can escape the spreading influence of federal law. It is a 1974 daily fact of life. To adequately represent his citizen clients. today's lawyer must have federal law readily at hand. Many thousands of successful lawyers rely heavily on United States Code Annotated to bring them the federal statutes that affect their clients. together with all court decisions that construe them. USCA can be a working tool for you, helping to build your practice. See your West representative or write us for facts.

WlU,'SHIIO

C'oYmI'

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

36131

JURIS 0 ICTUM by C.R. Huie Executive Secretary. Judicial Department

Calendaring Conflicts -

State and Federal Courts mail to Inmates from attorneys. Under departmental rules an inmate is not allowed to personally receive cash. checks or money orders through the mail. The normal procedure ;s for the above items to be removed from the envelope and a notice given 10 the inmate that the money has been deposited to his inmate account. Therefore. it is requested that anytime an attorney wishes to send money to an inmate in the Arkansas Department of Correction. that he send it by the use of a United States Postal Money Order and indicate on the envelope that it may be opened for postal inspection. SUPREME COURT OF THE UNITED STATES The Office of the Clerk. Supreme Court of the United States. has a project to list all accredited attorneys on machine-readable tape. All attorneys who are members of the Bar of the Supreme Court of the United States are urged 10 fill out the form below. returning it to the Clerk. Supreme Court of the United Slates. Washington. D.C. 20543. and marking It for the allention of BAR ~" PROJ

Judges will be holdIng court has been prepared. Facilities are not available to print and distribute the calendar to all attorneys. The calendar is on file in the Office of the Executive Secretary. Judicial Department (375-7001). and al the Arkansas Bar Center (375-4605). MAIL TO INMATES Robert A. Newcomb, Attorney for Inmates, Department of Correction, State of Arkansas. has requested that the following be brought to the attention of members of the Arkansas Bar. Any mail addressed to an inmate should have the inmate's name and Arkansas Department of Correction number on the envelope. In order to Insure proper delivery. Example: John Doe ADC 00000 Arkansas Department of Correction Cummins Unit Post Office Box 500 Grady. AR 71644 If the inmate IS at Tucker. the mall shou Id be addressed as follows: John Doe ADC 00000 Arkansas Department of Correction Tucker Intermediate Reformatory Tucker. AR 72168 It IS departmental policy nol to open

The State路Federal Judicial Council of Arkansas. an association of State and Federal Judicial officers created by Supreme Court rule. held its regular meeting Fnday. October 5 in Little Rock: Chairman. Chief Justice Carleton Harris presiding. Chiel JUdge Pat Mehaffy of the Eighth Circuit Court of Appeals moderated a panel discussion of "Calendaring Conflicls Between State and Federal Courts." Members of the panel were Chief Judges Smith Henley and Oren Harris. and Circuit Judges Elmo Taylor and Henry Britl. Following the discussion the Council went on record as endorsing the principle that judges of both State and Federal Courts give priority to those cases which are first set for trial. based upon the date of the order scheduling the trial date. It was agreed by all present that open lines of communicafion befween Slate and Federal Judges and mem bers of the Bar practicing be路 fore their courts provide the means of solution of most problems encountered by Judges In the conduct of theIr courts. COURT SCHEDULES The calendar of court days In Ar路 kansas shOWing when and where the

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

Information Form For Attorneys Admitted to Practice Before the Court NAME

DATE ADMITTED

BUSINESS ADDRESS:

_ _

Sireet

_ ZIP

City & Slate RESIDENCE ADDRESS: Street City & State SOCIAL SECURITY ACCOUNT NUMBER

_ _

ZIP

_ _

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

A New Approach to Legal Aid

The Sebastian County Legal Aid System Full-time legal aid has now been available to indigents in Sebastian County for over a year under a program organized by the Sebastian County Bar Association and Sebastian County Judge Glenn Thames. The program IS locally funded and supervIsed by members of the local bar and Judge Thames. Response has been heavy and most members of the local bar are enthusiastic about the program. The office operates on a cu rrent budget of $26,630 and is staffed by a lulltime attorney. Harry Foltz, and a secretary. Office space, library, and use of a copying machine are donated by the Sebastian County Law Library, and funding is provided by the Sebastian County Quorum Court with

federal revenue sharing funds. There are no state or federal controls on the program. The local bar association believes that the program is unique because it is altogether locally controlled. The attorney IS responsible to the county judge and the Sebastian County Bar Association Legal AId Committee and operates under guidelines drawn up by the Legal Aid Committee and Judge Thames. Criminal cases are not handled by the offIce. but are referred to the Sebastian County public defenders office. The idea for the office originated with Circuit Judge Paul Wolfe who telt there was a need in the county for expanded representation of the indigent

In civil cases. He approached the president of the local bar association. Don Callaway. and Bob Dawson. the Immediate past president. about the feasibility of setting up such a program. Chancellor Warren O. Kim路 brough was contacted and gave his full support to the Idea. The four men then met wHh County Judge Glenn Thames. who volunteered to see if funding for the program could be arranged. Judge Thames appointed a Quorum Court Committee to study the feasibility of the project and. after a favorable recommendation of the committee. the project was funded by the Quorum Court with a bUdget of $26,000 In January, 1973. Harry Foltz was hired as the legal aid attorney, and on February 1. 1973. offices were

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

April, 1974

opened In the Merchants National Bank Building In Fort Smith near the county law library. President Callaway appointed a legal aid committee consisting of Bob Dawson. chairman: Jerry Canfield. Willard Smith, and Alan Wooten to supervise the office. assist the legal aid attorney with legal expertise when needed. and draw up an operation policy for the office and qualification guidelines for the applicants. A great deal of study was given to the guidelines. The committee and the legal aid attorney wanted to arrive at guidelines that would insure legal representation for all of the poor who needed It. without Infringing on the practice of private attorneys. Arkansas Social ServIces was consulted and their regulations at that time stated the following monthly expenses were necessary for a minimum subsistence level "compatible with decency and health .. '

Rent or house payment per family. $40.00 Utilities per family. . .. 15.00 Medical expense per family ... 20.00 Food per adult 45.00 Food per child. .60.00 Clothing per adult ... 1500 Clothing per child .10.00 Personal expenses per family. . .. 20.00 Transportation to work as paid. Assuming for purposes of computing food and clothing allowances. there are two adults and two children In a family. the amount necessary to meet the monthly minimum requirements is $295 or $73.75 per week. This does not include transportation expenses to work or child care expense while working, bott1 of which can be fairly substantial. The committee found it difficult to see how an at路 torney's fee cou Id come out of a budget like this. and concluded. after studying all data, that the qualification guideline for an individual should be $55 per week net pay with $5.00 allowed for each dependent. excluding applicant. In addition, if all parents present in the home were employed. child care expenses of up to $10 per week per child would be allowed. No amount of child care expense wou Id be allowed that was not actually incurred. The committee empowered the legal aid attorney to determine whether or not to accept specific applications that do not meet the guidelines, but only after "considering the objective of the program, the type of case involved. the need for relief, the fact that persons should employ a private attorney whenever possible." Very few

cases have been accepted In the last year that do not meet the guidelines. The legal aid office may handle all civil cases of a non-fee generating nature for qualified applicants who are residents of Sebastian County or who work In Sebastian County. In its first year of operation the office handled 693 cases. Referrals to the office come from many sources Including social agenCIes, Judges, lawyers. and persons in the community who are aware of the program. Newspaper and television coverage was given to the office when it first opened and this helped to make the public aware of its existence. The phone number is listed under several different logical headings in the telephone directory to make the office easy to find for persons unfamiliar with government listings and unaware of whether the legal aid office is a city, county, state, federal or private agency. In addition to trying to solve legal problems for Indigents. the office often acts as a referral service to other social agencies. The legal aid attorney has found that often his clients

are not aware of any social agency that can help them. For example. a wife with several young children may have been beaten and deserted by her husband and left with no money whatsoever for food, rent or other necessities. Mr. Foltz attempts not only to help such an applicant with the divorce she may desire. but also personally calls a social worker to see that the woman and her children get immediate assistance in getting food, shelter, medical aid, etc. He then follows up to see that the services were actually obtained after the referral was made. If the services were not obtained. he finds out why and is often able to straighten out the problem so that the application for dif路 ferent types of aid can proceed. Sebastian County Legal Aid Committee Chairman, Bob Dawson. believes that there may be many ways to organize a legal aid program, but he feels that the Sebastian County program serves hundreds of qualified people who need legal help without infringing to any significant degree on the private bar. and that is hard to beat. J-.~

We've put it all together in the largest Trust Department in South Arkansas. FIRST NATIONAL BANK OF EL DORADO

The Arkansas Lawyer

A Federal Clerk's Response to

Five Most Frequently Asked Questions by E. A. Riddle, Clerk United States District Court, Western District of Arkansas When asked recently what five questions of most general interest are put to the clerk of a United States District Court by attorneys, I stated they would probably be: (1) questions concerning admission to the bars of the United States District Court. Court of Appeals and Supreme Court; (2) whether or not expert witness fees are taxable as costs; (3) when the district court loses jurisdiction in a case on appeal and when jurisdiction is reconferred; (4) how to satisfy a judgment in the United States District Court; and (5) various questions concerning appeals. When an attorney requests information concerning admission to the bar of the United States District Court. a copy of the local rules and an application form are mailed to him. and his attention directed to Rule 1. This rule. in brief. provides that the applicant may obtain a certificate from the Clerk of the Supreme Court of Arkansas certifying that he is a member in good standing of that Court. When the ap~ plication form (which is self-explanatory) has been filled out and approved by the Committee on Enrollment for the particular division, the applicant may appear with his petition and certificate and be admitted by the court. Those desiring to be admitted to the

Court of Appeals are advised to write to Mr. Robert C. Tucker. Clerk. United States Court of Appeals. SI. Louis. Missouri 63101. and request an application form. The form will be self~ explanatory. (See Rule 46. Federal Rules of Appellate Procedure.) Those desiring to be admitted to the Supreme Court of the United States are advised to write to Mr. Michael Rodak. Jr.. Clerk. Supreme Court of the United States. Supreme Court Building. Washington. D.C .. and request an application form. The form. too. will be self-explanatory. It is no longer necessary to appear before that court for admission. (See Supreme Court Rule 5. revised October 12. t970.) There are inquiries as to whether or not expert witness fees are taxable as costs. The principle that has become applicable in the Western District of Arkansas is that they are not. The general principle applicable is that only the regular statutory fees and allowances are taxable. The actual fees and expenses paid to such wit路 nesses are allowable only in exceptional cases where dominating reasons of justice compel the allowance. Such an allowance generally requires a prior approval of the court. As to termination of jurisdiction of

Mr. Riddle received his undergraduate degree at Samford University and his LLB degree from Cumberland University. He is a former Assistant United Stales attorney for the western district of Arkansas and was serving in thai capacity when he was appointed on April '9. '965. as the clerk of the United States District Court. Western District of Arkansas. He is a member of the Arkansas and Federal bars and the bars of the Eighth Circuit Court of Appeals and Supreme Court of the United Stales.

April, 1974

the District Court when a case is appealed. it terminates when the case is docketed in the Court of Appeals. Jurisdiction is not reconferred on the District Court until a Mandate (not just a written opinion) is issued by the reviewing court as prescribed by Rule 41. F.R.A.P. (See Floyd v. Lawrence. Federal Rules Decisions. 116 D.C. Tex .. 1973). There are no provisions in the Federal Rules or Statutes as to how to satisfy JUdgments Therefore, the state law is to be followed. Satisfaction of a Judgment should be noted by counsel on the margin of the record. However. the Clerk's Office has "Satisfaction of Judgment" forms available to attorneys which authorize the Clerk to note the satisfaction. The forms can be executed and mailed to the Clerk. At times in the past. attorneys representing defendants who have had judgments rendered against them would want to deposit money or a check in the registry of the court and ask the court to order the money paid to the person in whose favor the judgment had been rendered. This practice has been discouraged in the Western District of Arkansas. Rule 67 of the Federal Rules of Civil Pro~ cedure provides that money or things may be deposited in the registry of the court but it is contemplated that there is some dispute as to who is entitled to them. Usually the money proposed to be deposited to satisfy a judgment would be in the form of a check or a draft on an out-of-town concern. The court would not direct the payment of such money out of the registry of the court until it is positively established that the check or draft has cleared. Sometimes it took weeks. Probably the subject most inquired about is appeals. It would be impossible to discuss here all of the various questions that arise on this subject. but it is suggested that any attorney who has not appealed a Civil case but is contemplating such appeal should study Rules 10Ib). 28 and 30 of the Rules of Appellate Procedure. and Rule 8 of the Rules of the Court of Appeals for the Eighth Circuit. Rule 8 provides that "pursuant to Rule 11 (e) of the Federal Rules of Appellate Procedure a certified copy of the docket entries in the proceeding

below shall be transmitted to this court In lieu of the enlire record." II will be noted that this provision, by authority of Rule 11 (e). supersedes Rule 10(a) and certain other provisions of Rule 11. The only papers the Clerk forwards to the Court of Appeals are a copy of the Notice of Appeal and a certified copy of the docket entries in the proceedings in the District Court. This constitutes the record on appeal for the pu rpose of docketing a civil case.' Attention is called to Ihe following provision in Rule 10(b): "Within 10 days after filing the notice of appeal the appellant shall order from the reporter a transcript of such paris of the proceedings not already on file as he deems necessary for InclUSion In the record. " There IS a "standing" direction by the Judicial Council of the Eighth Circuit that clerks forthwith forward copies of notices of appeal and docket entries in all cases as soon as possible after the filing of the notice. (The reason given for said direction is 10 transfer superviSIon of preparation of transcripts to the Court of Appeals and to expedite the submiSSIon of appeals.)

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

provides, among other things, that those matters be heard on the origina' record as defined by Ru'e 10(a) of the Federal Rules at Appellate Procedure).

I-Iome Federal Savings

410 South Street Indian Mall Shopping Center Jonesboro, Arkansas 72401 932-1561

'(Rule 11 of the US Court of Appeals as amended effective Feb. 15. 1974, is ap-

Compli ments of the Trust Department of the 1\ 1erchants ]\' ati anal Bank of Fort Smith, Arkansas.

The Arkansas Lawyer

Replevin

ACT 144 OF 1973 ARKANSAS' ANSWER TO FUENTES V. SHEVIN by Griffin Smith

In the turbulent wake of Sniadach Y. Family Finance Corp.,l and Fuentes v. Shovin,2 counsel for banks, finance companies or agencies extending credit on personal collateral may well be justified in feeling belea路 guered. These decisions have touched off a tempest of litigation and achieved a profound alteration in the structure of commercial and consumer law. Just how far the progeny will go is by no means certain, but the

cure. In the process, the Court laid to rest the notion generated by Sniadach that only "necessities of life" such as wages were under the constitutional protective shroud. The Fourteenth Amendment's procedural due process requirements were held to apply to the "taking" of any significant property interest, even one in which the debtor had only qualified interest. The net result - summary taking of personal property by legal process,

first obvious necessity effectuated was adoption of legislation designed to fill the void created. As to the remedy of replevin, Act 144 of 1973' is

hearing - offends due process and statutes permitting the practice are void.

Arkansas' attempt to deal with the problem. Sniadach deals exclusively with garnishment but its doctrine, under which prior notice and opportunity to be heard were held essential to due process, was readily applicable to a multitude of other creditor remedies,

meet the exigencies of Fuentes. Of necessity, it was drafted and adopted without benefit of many judicial decisions that emerged from the nation's courts subsequent to June 12, 1972, the date of Fuentes' decision, because most were unannounced

replevin followed striction collateral creditors

included.

Act 144 of 1973 was designed to

soon

during the interim to February 14,

and it was dependent on having a

and established similar rewhere personal property, for a loan, was sought by deeming themselves inse-

1973 when engrossment, coupled with an emergency clause, signalled Act 144's effective date. Prior to Act 144's adoption, a patch-

judge in the county where the hearing was to be held, a luxury available only in a limited number of Arkansas judicial districts.

April, 1974

Fuentes

without opportunity for prior judicial

work procedure arose, similar to the practice followed in preliminary hearings in chancery courts, for the purpose of awarding temporary relief in domestic relations cases. Practitioners filed suit and applied to the circuit judge for entry of an order directing the debtor to appear at a stated place and time to show cause why a writ of replevin should not issue. This order was served with the summons. The effect was to accord an opportunity for hearing prior to issuance of the writ. the essence of Fuentes. The procedure left a great deal to be desired. Aside from the lack of specific statutory sanction (a minor objection, as the same could be said of the chancery practice, readily answered as within a court's inherent rule-making power), it resulted in unnecessary waste of judicial time, because many debtors failed to respond,

Act 144 sets up a procedure where JUdges may order appearance of the debtor in any county of the district for the purpose of determining whether a tangible defense against issuance of the Writ eXists. and It also offers an alternative designed 10 afford hearing opportunity but places the onus of exercIsing the right on the party claiming it - the debtor. Section 5 of Act 144 permits service With the summons of a notice which informs the debtor of the nature of the relief sought and requires the filing and service of written objections within five days (Sundays and holidays excluded) In default of which the clerk IS required to issue the writ at the request of plaintiff's attorney. To meet problems represented by the extraordinary case where genuine reason eXists to anticipate removal of the collateral after service, the court is empowered to authorize immediate seizure of the property and hold it subject to JudiCial disposition. beyond control of either party. It is assumed that if this aspect is utilized. the court will require. and the record should show. that a real emergency actually exists. Attempts to utilize it as a merely formal matter. and to disguise a convenience as an emergency. will doubtless encounter a high degree of judicial skepticism. In recognition of the fact that emotions frequently run high where property is sought by a creditor. and that instances of resistance. including damage to persons. property and psyche are by no means rare. the Act imposes on the debtor a command of docIlity. with appropriate penalties. both cIvil and Criminal, for destructive behavior.

Where the debtor avails himself of his right to Judicial hearing prior to Issuance of the writ. the degree of proof supplied by the creditor is that shOWing a prima facie right to Immediate possession. To support thiS. the Instrument creating the security In· terest should be exhibited and ade· quate eVidence offered to indicate that the debt IS delinquent and ac· celeratlon has occurred. The Act does not contemplate a full-scale trial of all issues at the preliminary hearing. In or· der to achieve delivery of the collateral. the creditor stili must furnish bond as provided In seclion 34-2105. and adequate recourse by the debtor exists If final adjudication IS adverse to the creditor's claim. Experience to date has indicated that the alternative procedure serves satIsfactorily In most cases. A Sizeable majority go by default. Where hearings are requested. most circuit jUdg· es. With a minority of notable exceptions. readily accede to motions for early setting. Cases where the collateral is deliberately damaged dur· ing the period between service and hearing are not unknown. but the number has not been 01 critical pro· portions. However. the opportunity for loss to a creditor through this avenu€. remains and represents a serious. valid objection to the Fuentes rationale. Fuentes IS only one incursion on prejudgment remedies which have existed for more than a century. the destruction of which has disrupted business practices of long standing. Everyday tools of businessmen ex· tending credit have been practically eliminated. Some courts have gone far beyond the language of Fuentes and

Sniadach, holding that even private acts of repossession are subject to prior hearing requirements.'; Such a view IS presently In a minority. the bellwether of the flock holding to the contrary.' The Eighth CirCUit has JOined the maJorlty.6 If obliquely. applying the same reasoning to a banker's hen as the Ninth CirCUit applied to phYSical repossession. The ramificatIons of Fuentes are all too clear. and are attended by a degree of uncertainty that IS wholly unwarranted. The deCision was by 4 to 3 vote. Justices Powell and Rhenquist abstaining. For thiS reason. some courts have refused to recognize it as binding The Supreme Court of the United States. apparently cognizant of the whirlWind It has sowed, has granted certiorari and heard argument in a case from LOUISiana] that is close enough to Fuentes to look suspiCIOusly like a rehearing. The results from thiS second consideration should prove interesting. Should the unusual occur. and the Court retreat from Fuentes to such a degree that the former practice in Arkansas is restored. re-enactment of the replevin statutes will not be necessary. Act 144 (SECTION 9) disclaims any intention to repeal existing laws. J1 J59 us 337 89 5 et 1820 23 L Ed 20 349 11969J 2 407 US 67 92 5 Ct 1963 32 l Ed 2d S56 (1972) 3 Ark Slats sectlOfl 34·2119 et seq 4 Bolend v Esse.. County Bank & Trust Co Aep 38 USCC Mass Aug 15 1973

13 U C C

5 AtSam$ v SooJthem Cahlornla Flf$t NatIonal Bank Hamp. tori v Bank 01 Calilorn,a 13 U e e Rep 161 90'1 e,r Oct 4 1973 6 Blcnel Optical Lat:toratOnes Inc v Tne Marquette Nat' Bank No 73-1330 {81h Clf Nov 7 19731 7 Mitchell v W T Grant Co No 72-6160 (U 5 L W Dec 11. 19731

Griffin Smith is a native of Paragould and a graduate of the University of Arkansas School of Law. He is the author 01 Arkansas Forms With Practice Commentaries printed by West Publishing Company, and is general counsel for Union National Bank of Uttle Rock as well as counsel for Ford Motor Credit Company. He has served as a special agent for the Federal Bureau of Investigation as well as assistant United States Attorney for the Eastern District of Arkansas, and in addi· tion to membership in the Pulaski County. Arkansas. and American 8ar Associaflons, is a fellow of the International Academy of Trial Lawyers.

The Arkansas Lawyer

A Discussion of

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

Some Cases and Administrative DeciSions under the Sex Discrimination Clause.

The action In civil rights law today is in the field of sex discrimination. An attorney representing a covered em~ ployer can expect to be asked for an~ swers as to the employer's liabilities In the area of sex discrimination In time to avoid problems. More and more individual attorneys and law firms are being approached by aggrieved working women who want advice and action. Litigation In thIS field In the past has been sparse. but IS now mushrooming. Until Ihe passage March 24, 1972. of Public Law 92-261. the Equal Employment Opportunity Commission, the administrative arm of Title VII of the CIvil Rights Act of 1964. had timlted powers. However, since the 1972 Equal Employment Act which amended Title VII to expand EEOC's coverage and sharpen its teeth. the picture has changed. Instead of a conciliation conference being the ultimate confrontation. an attorney representing the employer may find herself or him~ self vis-a-vis EEOC before a United States District Court Judge. Today. Title VII has been extended to cover formerly exempt employers who are governments. governmental agencies and political subdivisions. The federal government is under an Executive Order which is adminiStered by the United States Civil Service CommIssion. Already covered were businesses. labor unions, trusts. hiring organizations such as union hiring halls and employment agencies. and almost any other employer you could name who has fifteen employees workIng In at least twenty calendar weeks of the year. In 15 Am Jur 2d Supp. Civil Rights. Sec. 58.3 (new text) can be found the amended provisions affecting employment practices which discriminate against any Individual with respect to his compensation. terms. conditions, or privileges of employment because of such individual's race. color. religion. sex. or national origin. After a backlog of charges had stacked up In the EEOC. and payment of negotIated settlements and litigated JUdgments crept along at a snail's pace. and while public employees April, 1974

were not covered by Title VII, some women whose expectations had been aroused by pUblicity about equal job opportunities sought a more direct remedy_ At the time two pregnant school teachers, one in Ohio and one in Virginia, initiated litigation against their employer school boards involv~ ing the constitutionality of mandatory maternity leave rules, they did not come under the protection of Title VII. They went into U.S. District Court and the United States Supreme Court in a 7-2 decision said the school boards' arbitrary rules violated the Due Process clause of the 14th Amendment to the United States Constitution. Cleveland Board of Education et 01. v. La Fleur et al., No. 72-777, 465 F2d 1184, aft'd: and Cohen v. Chesterfield County, Virginia School Board et aI., No. 72-1129.474 F2d 395. reversed and remanded. These decisions, although in cases not brought under Title VII, clearly uphold the provisions of the EEOC's Guidelines on Discrimination Because of Sex. but without expressly validating them. These guidelines. appearing as amended In 1972 in 37 Federal Regisler 6835, AprilS, 1972, provide in Section 1604.10 that employment poliCies or practices which exclude applicants or employees from employ~ ment because of pregnancy are In prima facie violation of Title VII: that the disabilities of pregnancy. miscarriage. abortion. childbirth and recovery therefrom are temporary disabilities for purposes of health or temporary disability insurance or Sick leave; that policies on commencement and duration of leave. extensions. accrual of seniority and other benefits and priVileges. reinstatement. insurance payments. are applicable on the same terms and condItions as for other temporary disabilIties; and that when termination for disability where Insufficient leave is available has a disparate impact on employees of one sex and isn't Justified by bUSiness necesstly, It IS a Violation of the Act. The Cleveland Board of Education rule required a pregnant teacher to be placed on unpaid maternity leave for

the five months before childbirth to last until the next regular semester after the child was three months old. The Chesterfield County. Virginia, rule required six months notice of the anttcipated childbirth and that her work stop four months before childbirth. The Supreme Court said that the arbitrary cut-off dates had no valid relationship to continuity of instruction if substantial notice is required; that the teacher's ability to continue past a fixed date is an individual matter and administrative convenience alone is insufficient for the rule. The Court's opinion did not foreclose the possibility of a valid cut-off date during the last few weeks of pregnancy - a four-week pre-birth cut-off date being suggested by Justice Powell. Policies that have an adverse impact on women because of pregnancy must be Justified by business necessity and essential to safety and efficiency. EEOC Decision No. 71-413 (1970) CCH Employment Practices Guide. paragraph 6204. In Doe v. Osteopathic Hospital of Wichita, Inc. (DC Kan) 333 F Suppl 1357. the court held that discharge of an office worker for unwed pregnancy was unlawful sex discrimination. Now. With Title VII revitalized by its stronger provisions. the promise of more examiners and more funds. the agency is in litigation again with at least 25 cases on discrimination filed in various District Courts. Both EEOC. in Section 1604.2(a) of its gUidelines and the courts. with cases annotated In 12 ALR Fed 15, 39 Sec. 6 (b), agree that the bona fide occupational qualification exception as to sex should be narrowly interpreted. Sex has been held not a bona fide occupational qualification for the positton of airline flight-cabin attendant In Diaz v. Pan American World Airways, Inc. (CA 5 Fla) 442 F2d, cert den 404 U.S. 950. 30 L Ed2d 267. 92 S. Ct 275: for the pOSitIOn of stenographer In EEOC Decision Case No. YNO 9-082 (1969) CCH Emp. Prac. Guide paragraph 6005: for the position of lifeguard in EEOC Decision No. 70-286 (1969) CCH Emp. Prac. 95

Guide paragraph 1166.20; for the position of bartender in McCrimmon v. Daley, (DC 111) 418 F2d 366; Sail'er Inn, Inc. v. Kirby, 5 Cal. Rptr 329, 485 P2d 529. 46 AlR2d 351; as casino card dealer in EEOC Decision No. 71· 77 (1970) CCH Emp. Prac. GUide paragraph 6161: as steamship purser in EEOC Decision No. YNY 9·047 (1969) CCH Emp. Prac. Guide paragraph 6010; as railroad agenttelegrapher in Rosenfeld v. Southern Pacilic Co. (CA 9 Cal) 442 F2d 1219; as a racing car driver in EEOC Decision No. 71·2088 (1971) CCH Emp. Prac. Guide paragraph 6250; as a baseball umpire in New York State Division of Human Rights v. New York·Pennsylvania Professional Baseball league, 36 App. Oiv. 364, 320 NYS2d 788. alt'd 29 NY2d 921, 329 NYS2d 99. 279 NE2d 856. The guidelines provide that the assumption of a general characteristic of women, such as a higher turnover rate than men, or a stereotyped characterization, i.e. that men have less capacity for manual dexterity than women. or that women have less capacity for aggressive salesmanship, are not BFOQs, nor is the preference of co-workers. But the need for authenticity as in hiring an actor or actress is a BFOQ and an exception to the prohibition against sex discrimination in job practices. The test the court has approved is whether the employer had a factual basis for believing that all women would be unable to perform the job safely and efficiently. Weeks v. Southern Bell Telephone Company, (CA 5 Ga) 408 F2d 228. 12 AlR Fed 1. EEOC has ruled that state laws that prohibit or limit employment of women in certain jobs which involve lifting or carrying weights, or working certain night hours do not take into consideration the capacities and abilities of individual women and therefore discriminate on the basis of sex. They are not considered by EEOC to be a defense to an otherwise unlawful employment policy. The fact that it will cost an employer more to comply with the law by paying minimum wages and premiums for overtime, furnishing separate rest rooms and providing special rest and meal facilities is not a business necessity which will excuse violation of the law. Although state laws limiting women's hours of labor, frequent lifting of weights over 25 pounds and lifting weights more than 50 pounds, or employment in certain jobs. such as bartending, are invalidated by Title VII. certain other state laws have been undisturbed. The 8th Circuit Court of

Virginia Tackett, Staff Attorney for the Arkansas State Highway Commission, graduate of Arkansas Law School; licensed in 1965; member of Governor's Commission on the Status of Women; member of the Criminal Code Revision Commission; member of the House of Delegates, Arkansas Bar Association.

Appeals, in Potlatch Forest, Inc. v. Hayes, et al .. 318 F Supp 1368. aft'd. 465 F2d 1081 (1972) held that Ark. Stats. 81-601 which provided that women employees required to work more than 8 hours per day must be paid one and one-half overtime confers a benefit on women employees which cou Id be extended to male employees and the company could therefore comply with both Title VII and Section 81-601. Likewise. in Ridinger v. General Motors Corp. (DC Ohio) 325 F Supp 1089. the Court declined to invalidate a statute requiring seats, lunchrooms and minimum lunch hours for women. The maintenance of separate lines of progression or seniority lists based on sex. if it would adversely affect an employee, is an unlawful employment practice. EEOC Decision No. 71·1100 (1970) CCH Emp. Prac. Guide paragraph 6197. EEOC Decision No. 71-1062 (1970) CCH Emp. Prac. Guide paragraph 6196. An employment policy restricting employment of married women but not married men is an unlawful employment practice and can only be justified in terms of the peculiar requirement of the particular job, and not on the basis of a general principle such as spreading work around. See Sprogis v. United Airlines, Inc. (CA 7 111) 444 F2d 1194. cert den 404 U.S. 991. 30 l. Ed2d 543.92 S. Ct 536; Neal v, American Airlines, Inc" eEOC Decision Case No. 6-65759 (1968) CCH Emp. Prac. Guide paragraph 6002. and EEOC Decision No. 71-2048 (1971) CCH Emp. Prac. Guide paragraph 6244 for cases dealing with the requirement that airline stewardesses be single and women truck drivers be married, an interesting contrast of employment philosophy and practice. One of the earlier sex discrimination cases involved denial of a supervisory job to a woman with preschool age children where the same measure was not applicable to men with preschool age children. The court in Phillips v, Martin-Mariella Corp., 400 U.S. 542.

27 l Ed2d 613. 91 S.C\. 496. said that such a practice is valid only if conflicting family obligations are demonstrably more relevant for a woman than for a man. A refusal to hire or a policy to terminate an employee whose spouse is also employed by the employer is a questionable practice since the fact that salaries paid women are generally lower than those paid men, and in such a situation more women than men would be affected, would cause a disparate impact on women, a principle in conflict with the law and regulations. A disclaimer by a newspaper that its want ad heading "Jobs - Female Interest," "Jobs - Male Interest" and "Male - Female Help" was only for the convenience of the readers was held invalid and the practice called an unlawful aid to sex discrimination. Pittsburgh Press Co. v. Pillsburgh Commission on Human Rights, 4 Pa Cmwith 488. 287 A2d 161. In Frontiero v. Richardson, 41 l.W. 4609 (No. 71-1694. 14 May 1973) the United States Supreme Court held at page 4612 that" classifications based on sex. like classifications based on race, alienage or national origin, are inherently suspect and must therefore be subjected to strict judicial scrutiny." Section 706 (k) of Title VII provides that the court in its discretion may allow a reasonable attorney's fee to the prevailing party along with costs. other than to EEOC or the United States attorneys. Although some employees had not filed charges of discriminatory employment practices and had not received notice of right to sue. in a successful suit for injunction and damages the court found the suit to be a Class action and relief in the form of damages to be available to all who suffered damages whether or not they file charges or joined in the suit. Bowe v. Colgate-Palmolive Co., (CA7 Ind) 416 F2d 711. Continued on page 99

The Arkansas lawyer

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

Judith Rogers of NLR was recently elected Board President of the State ACLU Chapter. Roy Edward Thomas IS the new associate of Bennett and Purtle In Batesville. Neva B. Talley-Morris' new book. "Family Law Practice and Procedure Handbook," has been published by Prentice-Hall, Inc. Eugene B. Hale, Jr. is now Assistant Vice-PresiBrady and Betty Anderson

Eugene B. Hale, Jr.

dent In the Union National Bank's Commercial Loan Division. L.D. Gibson has opened his law office In Trumann. George E. Campbell of Little Rock received the Distinguished Citizen Award from the National Municipal League. Ruth Brunson, Professor and Law librarian, Little Rock Division of the U of A School of Law, is the current President of the SW Chapter of the American Association of Law Libraries. Brooks Hays was recently elected at Washington as President of the Former Members of Congress Club. Paul B. Young has been elected to the Board of the National Bank of Commerce in Pine Bluff. President Hoyt Thomas of the Cleburne County Bar Association has annou nced that there is a display for the public in the courthouse with brochures about the different aspects of the legal profession. Mike Beebe of Searcy has been apPointed by Governor Dale Bumpers to ASU's Board of Trustees. Sidney H. McCollum is the new partner in the Little. Lawrence and McCollum firm of Bentonville. Barber, McCaskill, Amsler & Jones is the new name for the Little Rock law firm. Sheridan has a new April,

1974

law firm with Joe Brady Anderson and Belly Wray Anderson. Michael E. Irwin is now Deputy Prosecuting Attorney for Cleburne County. replacing Carl Mc· Spadden of Heber Springs. John M. Belew IS associated with the Harkey and Walmsley firm In Balesville. NLR has a new law firm - Wallace, Hilburn and Wilson. David Clinger and Howard Slinkard of Rogers have opened part time office at Pea Ridge - the town's first law firm. Don Adams and Scott Covington are a new law firm in Harrison. Perry V. Whitmore IS a new partner in DaVIS. Plegge. Lowe & Whitmore of Little Rock. Gerald W. Carlyle has announced the opening of hiS new law office In Newport. Thomas S. Stone IS now associated with Davidson. Plastlras & Horne. Ltd. In Little Rock. Osceola has welcomed David Stubbs

as the new associate of the Moore and Cleveland law firm. The Washington County Bar Association donated $300 to the local Juvenile Court to buy 'gilts for deprived and low Income children V.P. Walter Niblock was one of the gift wrappers. Neva B. Talley-Morris is a candidate for one of the five Assembly Delegales to the ABA House of Delegates to be elected al Ihe 1974 ABA Meetmg In Honolulu. George D. Ellis of Little Rock has been named to the Board of Directors of AcademiC Press Denver Thornton of EI Dorado has been appOinted to Arkansas' Labor Commission. The Faulkner County Bar Association sponsored a questlon-and-answer program on the Homestead Tax Relief Act of 1973 with Guy Jones, Jr., Francis T. Donovan and Jim Watson as the Committee. Terry Kirkpatrick of Fayetteville has Joined the slaff of John Doar. Majority Counsel for the House JudiCiary Committee. as a research assistant for the Committee's investigation of im· peachment proceedings against the President. Past President Henry Woods spoke in Memphis at the Trial advocacy seminar. sponsored by the Tennessee TLA and U of Tennessee at Nashville. Allen W. Bird II IS now associated With Max C. Mehlburger for the pracllce of law in Little Rock. L. Philip McClendon has joined the Legal Department of Georgla-Paclfic's Crossett DiVISion. Paul W. Hoover and John H. Jacobs are a new law partnership in Little Rock. It is now the Cathey, Brown, Goodwin & Hamilton law firm in Paragould. New Association Officers Arkansas Assoclatton of Criminal Defense At· torneys: PreSIdent Omar G. Greene; Robert L, Pierce, VP: Lloyd Haynes, Secretary: and Henry Osterloh, Trea· surer. Independence County Bar Association: President C.T. Bennet i VP David Blair; Secretary Bernice Mc· Spadden; Law Day Chairman John Belew. Union County Bar Association: President Wallace M. Moody; VP Albert R. Hanna; Secretary-Treasurer Michael R. Landers; and Law Day Chairman Ronald L. Griggs. Arkansas City Attorneys' ASSOCiation: President Bill Ross; 1st VP Clifton Hoofman; 2nd VP Robert Tolson, Jr.; and Secretary..I. Treasurer Ike Allen Laws. Jr.

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

EXECUTIVE COUNCIL NOTES By James M. Moody Secretary-Treasurer

On November 30. 1973 the ASSOCiation moved Its offices to the new Bar Center and the Executive Council held Its first regular meetmg In the new facility on

March 9. HIgh on the prlonty of bUSiness discussed at the meeting was consideration of a new budget for the Association

Phil Anderson reported 10 the CounCil that the Bar Foundation was In good finanCial condition and able to meet all current obligations concernmg the completion of the Bar Center as well as carry out Its pnmary purpose of making funds available for scholarships and research projects

bers of the facully of the University of Arkansas Law School The secretary-treasurer IS happy 10 report that the Assoclatlon's finances are In good shape even after extraordinary expenses were Incurred In the past year In connection with the annual meeting and the legislative program. The

and a proposed restructullng of the

Plans are almost complele for the Fall

balance sheet prepared by the audllor

dues With mflatlon affecting every or~ ganlzatlon 5 operating expenses and the maintenance of the new Bar Center. an Increase In Bar dues IS Inevitable and a proposal will be submitted to the House of Delegates to put Arkansas in line with her neighboring states.

Legal Institute which will move back to Fayelteville on the weekend of the TulsaArkansas game James Sharp has arranged lor ample room at the Moun路 tain Inn Downtowner which has recently been remodeled and an outstanding program has been prepared utilizing mem-

showed lotal current assets of 558.739.20 and total fixed assets of 53,517.47 or total assets of $62.256.67 Total current Ila路 billtles were listed as $252.66 and memo bers equity as 562.256.67. an Increase of Continued on page 99

uperior Federal Savings and Loan Association FORT SMITH

MAIN OFFICERogers Avenue at 16th Street EASTSIDE OFFICERogers Avenue at 571h Street VAN BUREN OFFICE11()4 Broadway MENA OFFICEMaIn at HIckory Street MOBILE OFFICEOzark. BooneVIlle. Waldron, Paris

The Arkansas Lawyer

Mysticism, Continued from page 72

costs 5192 to produce the tag. so we bought four tapes and are routing them around the state like a bunch of country merchants. There are ten television stations in Arkansas, but we lawyers can't shake loose enough money to buy over fou r tapes. It is very depressing to see this happen when the power of television and the power of the written word can be combined to provide effective support for law and for the legal profession. Today this proud profession. which has dedicated itself to the service of others. is being attacked by those who say that lawyers are selfish, that there is a self-interest among us which wou ld override a ded ication to the public and a dedication to others. I remind you that you and I have a license to practice law. I think the public attitude governs the extent to which we will be permitted to exercise that license. Arkansas lawyers must insure that the public attitude is one of confidence, confidence in us. And I think this can be changed in two ways. First, by an emphasis on our daily personal relations as lawyers. If we must criticize Maranda. Escubedo or Jackson Y. Denno, then let's do it in an attitude of a legal discussion. Let's do it in our professional manner and not by slander of the justices. Secondly, by support of an aggressive public information program of the organized Bar. I would really like to see us do what the lawyers in Kansas did. They

voluntarily increased their dues $25 per lawyer to insure that they cou Id effectively inform the public about their profession. If you agree with me on that. then ask your representative in the House of Delegates of the Arkansas Bar to consider increasing the dues so that we can have effective public information programs for the lawyers of Arkansas. A noted short story writer was incarcerated in a state penitentiary. While the prisoner was there. he decided that when he was released he wanted to write. but that he had to get another name because his name was marked. With the guard's permission, the prisoner assumed the guard's name and, as he left the prison. the old guard waved and said, "Take good care of our name." Like that writer, we need to take good care of our name - lawyers. J ...

"Notes, Continued from page 98

$5,915.92 over members equity as of June 30, 1972. At the last meeting of the House of Delegates, a committee was appointed to organize a tennis league which will hold round robin tournaments around the state CUlminating in a final tournament to be held at the annual meeting with prizes for the winners. Jack Young has been appointed chairman of the committee. The House adopted a resolution proposed by Robert Hays Williams that the

Service Directory MATTHEWS & CO,

Association appoint a committee comprised of members of the House of Delegates, members of the Judicial Council and faculty from the Law School to make specific recommendations for consideration by the House of Delegates in an effort to restructure eXisting judiCial districts to equalize the work load. The House also adopted a resolution approving the action of the Senate JudiCIary CommIttee which had recommended that Arkansas remain in the Eighth CirCUit Court of Appeals rather than being moved to the Fifth CirCUIt. Membership is still at a record high with 1.843 members compared to 1.709 in March 1973. ./, Civil Righls, Continued from page 96

While EEOC is the administrative arm of Title VII, the U.S. Civil Service Commission administers Executive Order 11478 which prohibits discrimination because of race. color. religion. sex or national origin for federal employees, and the Office of Federal Contract Compliance administers Executive Order 11375 governing federal contractors and subcontractors. The Wage and Hour Division of the Department of Labor administers the Equal Pay Act, an amendment to the Fair Labor Standards Act, which prohibits wage differentials based on sex.

v',

PARAGON Printing & Stationery Company has been printing BRIEFS for over 35 years. May we be of service to you? 311 East Capitot 375-1281 Linle Rock

INCORPORATED TAX-EXEMPT MUNICIPAL BOND SPECIAUSTS

1930 Worthen Bank BUilding lillie Rock. Arkansas 72201

376.Q491 800-482-9381

BEACH ABSTRACT & GUARANTY COMPANY REPRESENTING: COMMERCIAL STANDARD TITLE INS. CO. ABSTRACTS - ESCROWS - TITLE INSURANCE 213 W. 2nd $1. - little Rock, Ark. - FA 6·3301

MEL VIN E, FRY 225-2914 AN ECONOMIC APPROACH TO TOP OUALITY PARA-LEGAL ASSISTANCE

April, 1974

FAULKNER COUNTY ABSTRACT CO, Robert M. McHenry, Manager • Copying and • Abstracts Duplicating • Title Insurance Service • Laminating Service Over 60 Years Service Conway, Ark. 13 Oak St. • Phone 329-2631

Aerospace .. Aggressive At Wesson One, that's just one of our management solid our plans aren't current ventures financing, innovative always up in the air. that's helping us to thought and the As one of Arkansas' courage to sometimes reach for the sky. most unique And why not? fly-by-the-seat-ofmulti-faceted At Wesson One, our your-pants without corporations, we're success tells us winging it is leading well-grounded that we know which us to new horizons. in the various kinds way is up. of opportunities Wesson One. that are taking shape in our state. Where new ideas

have a way of taking off.

100

The Arkansas Lawyer

Complete Trust Services For Attorneys And Their Clients

MISSING AND UNKNOWN HEIRS LOCATED NO EXPENSE TO THE ESTATE

WORLD-WIDE SERViCE FOR

COURTS - LAWYERS - TRUST OFFICERS ADMINISTRATORS - EXECUTORS

American Arcl..iueJ AJJocialion INTERNATIONAL PROBATE RESEARCH 449 WASHINGTON BUILDING

WASHINGTON. O. C. Member FDIC

Member Federal Reserve System

J.J. White, Pres .• John M. Move, V. Pres., & Trust Officer

':J,:lte ..!)n:Htrance

Commercia! Standard

NOW IN OPERATION

Assets over $37,000,000.00 Agencies in 18 states Subject to State supervision everywhere

General Agent for The Stote of Arkansas

Beach Abstract and Guaranty Co. 213 West Second Street Little Rock, Arkansas 72201 Telephone 376-3301

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

Member of American, land Title Association

April, 1974

101

We're concerned about you and your future Our vast expenence in legal malpractice cases indicates that at least half of all malpractice claims stem from a faulty diary system for case follow-up and docket control We're concerned about your diary system. Is it adequate or have you Just been lucky? Does it contain all your important next week? dates to follow up today? . next month? next year? How long will your luck hold out? To help you establish the essential characteristics which any reliable system must have, the American Bar Association has prepared a special Docket Control Kit Irs a suggested approach for you to consider for the development of your own system The Kit contains a cassette tape and booklet that spell out in detail what to do and how to do It Normally, the Kit costs S750 and irs worth every penny. But if you're insured under the CNA Bar-Sponsored Professional Liability Program, we'll send it to you for only S6.00 (Our special offer expires 12 31 73.)

This coupon saves ~ou $1.50 now. And possibl~ lhousands of dollars laler.

,.------coupon------'" I I I I I

:路CNAlinsurance

ENCLOSED IS 5600' PLEASE SEND CASSETTE AND BOOKLET TO

DOCKET 1N1 IL P 0 B( IX 1263

CHICAGO ILLINOIS 60690

NAME

I I

POliCY NO

ADDRESS CITY

STATE

ZIP

-MAKE CHECK OR MONEy ORDER PA YABLE TO CNA INSURANCE

~------------------~

102

The Arkansas Lawyer

Great partnership: Orville &Wilbur ...another great partnership: ARKAnSAS BAR ASSOCIATion &

:路CNA/insurance Now working together to provide you with a long-term stable program to combat the professional liability problem. With a partnership like this, wouldn't you expect more? There is, if you just participate. The future is uncertain-protect it.

PROFESSionAL LIABILITY PROGRAm Want more details? Call or write --,

,--------------- - -- ---------- --- - -- -- --- - Please send Professional Liability Program details.

Arkansas Bar Association Administrator Rather, Beyer & Harper Three Hundred Spring Building Little Rock, Arkansas 72201 (501) 372-4117

L----.: April, 1974

Name' Address; City' Zip,

_ _ _ _

'--_-' 103

Two States Petroleum Company} Inc. ':~;W

WHOLESALE GASOLINE OILS GREASES TIRES

II SHE,LL

P.O. Box 627

900 Wheeler Avenue Fort Smith, Ark. 72901

We care for more Arkansans than anybody. And\Ve're proudof that. Blue Cross. Blue Shield

速

of Arkansas

We care about people. Arkansas people. 104

The Arkansas Lawyer

CITIZENS BANK OF JONESBORO

SINCE

1895

We appreciate the opportunity of working with Arkansas' Lawyers

ABSTRACTERS OF TITLE

cn(arkLe 04£,,,tract eompcm\j Jonesboro - Lake City, Arkansas

MEMBER FDIC

MEMBER: ARKANSAS TITLE ASSOCIATION AMERICAN TITLE ASSOCIATION

Arkansas Eminent Domain Digest Compiled by the University of Arkansas for t.he Arkansas StaLe Highway Commission.

207 Pages

Arkansas statutes Annotated

89.50

22 Volumes with Current Supplement $17;).00 in the State of Arkansas.

WORKBOOK FOR ARKANSAS ESTATE PLANNERS MITCHELL D. MOOR" • WILLIAM H. lJOWEN

A Complete Source for Planning Estates in Arhansas Planned exclusively for Arkansas lawyers, it is based on the statutes, cases. regulations. and tax situations of the stale. This workbook serves as a guide to drafting a simple will. testamentary planning for benclit of minor or aged. forms of property ownership. purposes and techniques of making gifts, drafting partnership and business purchase agreements and many other important topics. The handy loose-leaf format makes this source a unique working tool-an invaluable reference for the Arkansas la\',ry....r.

11 Chapters

$35.00

REID'S BRANSON INSTRUCTIONS TO JURIES 7 VOLUMES WITH CURRENT SUPPLEMENT

JONES LEGAL FORMS THREE VOLUMES. 68 CHAPTERS

$60.00

$125.00

Contact Your Bobbs-Merrill Arkansas Representative, Mr. Joshua E. McHughes 920 West 6TH Street

Little Rock. Ark. 72201

(501) 376-9131

The Babbs-Merrill Company, Inc. 4300 W. 61nd St. / Indianapolis. Indiana 46168 Any reseUer

April, 1974

free

charge whalcuf?f pru:e it

wI.~hes

for our books.

105

Amoving experience.

1974 Datsun 260-Z

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

sistorized for a fatter spark and longer spark plug life. A four-speed stick or optional three-speed automatic transmission transmits the power. A fully independent suspension and standard radial tires pul it on the road.

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

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

ERNIE LEMMON, DATSUN, INC. Ph. 785-2401 - 1410 Towson Ave., Fort Smith, Ark. 72901

106

The Arkansas Lawyer

Aide-de-courl. Jim Kennedy connects the workings of the bar with banking. As an investment management counselor at Commercial National Bank, Jim can hel p you with the money management of trusts and estates, pension and profit sharing, investment counseling and other trust matters that matter. Call Jim for a briefing. 378-3342 .

••• III COmmercial National Bank OF LITTLE ROCK Member F Die

April, 1974

107

BIPOIT by James E. West

HIGHLIGHTS Committees are the lifeblood of the Arkansas Bar Association. All of us can take great pride in the work of our committees this year, and this issue of the Arkansas Lawyer serves as one example of the work of a single committee. This issue was conceived and edited by members of the Public Information Committee. and it contains matters of practical and vital Interest to every Arkansas lawyer. Highlights of this Bar year have included eight Regional Institutes on Trial Practice: Fall Legal Institute covering portions of Workmen's Compensation Law. Maritime Law. new legislation, and trial practice: Long Range Planning Conference: dedication of the new Arkansas Bar Center: obtaining many thousands of dollars for the Arkansas Bar Foundation: moving into the new Bar Center: completion of volunteer legal assistance to tornado disaster victims: special programs lor law students on legal economics and trial practice: publication (in larger type) of new directory 01 members: increase of membership from 1709 in March. 1973 to 1843 in March. 1974: Oil and Gas Institute: preparations for unique annual meeting; and a tremendous amount of work and accomplishment by the many committees of the Association.

THE GOOD OLD DAYS We are rapidly approaching the climax of this Bar year. Our annual meeting in Hot Springs on June 5-7 will have as its theme "The Good Old Days." and the program will include legal economics help for all solo practitioners and members of small law firms; a discussion of the new model jury instructions: and a tremendous variety of entertainment. includ路 ing Gridiron Show. amateur lawyer talent. arts and crafts display by lawyers and family members. tennis. golf. ping pong. bridge. bingo. barbecue. horseshoe pitching, moustache contest. old costume contest. receptions. humorous luncheon speakers. banquet. square dancing. modern dancing. and general fellowship with our lawyer friends from all parts of the slate. I would like to repeat something I said prior to our mid-year meeting. One of the reasons we work so hard as lawyers is to be able to enjoy a few of the finer things of life. The 1974 annual meeting of the Arkansas Bar Association will be one of those finer things. Doris and I look forward to being with you in Hot Springs as we all relive the good old days.

The world will never be the same Our lives have changed in many ways For just a while let us ree/aim The spirit 01 Ihe good old days James E. West

lOB

The Arkansas Lawyer

ARKANSAS BAR ASSOCIATION 76TH ANNUAL MEETING JUNE 5-7, 1974 HOT SPRINGS, ARKANSAS

ARLINGTON HOTEL

"What's Ahead for the Sole Practitioner and the Small Law Firm"

Dean Robert A. Lellar "The Dean" Reminisces

Robert P. Bigelow Leading Editor-Lawyer

J. Hams Morgan Noted Lecturer-Lawyer

Bernard Sternin Author-Gonsu Itant-Lawyer

G B. Nance, Jr. Pioneer In Video Usage

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

April, 1974

109

In memoriam In memory of our departed colleagues, and in honor of the families and friends they have left behind, the following words of recognition and memory are hereby shared with the members of the Arkansas Bar Association through its Memorials Committee.

FRANK G. BRIDGES, a senior member of the Pine Bluft. Arkansas law firm of Bridges. Young. Matthews and Davis. died November 7, 1973. at the age of 67. A 1929 graduate of Vanderbilt University Law School. Nashville. Tennessee. Mr. Bridges was admitted to the Arkansas Bar in 1930. He was an active practitioner and a member of the Jefferson County, Arkansas and American Bar AssociatIons. Mr. Bridges was born in Pine Bluff, the son of the late Frank G. and Vive Walker Bridges. He was educated in the Pine Bluft public schools and did undergraduate work at Vanderbilt where he was president of the student body. Mr. Bridges was Interested in and active In Pine Bluff Civic and community affairs, serving on the Pine Bluff school board. being a director of the National Bank of Commerce. a member of Quapaw MaSOniC Lodge No. 730. a member of Pine Bluft Rotary Club. a member and several times director of the Pine Bluft Chamber of Commerce. a former director of Arkansas Oak FloorIng Company. a member of "Fitly for the Future. and a member and deacon of the First Presbyterian Church In Pine Bluff In addition to these actiVities. Mr Bridges served from 1943 to 1945 In the United States Navy In World War II being discharged with the rank of lieutenant commander. Survivors Include hiS Wife, Anna Lou Young Bridges. two sons. F. Gordon Bridges. III. and Lundsford W. Bridges. and a daughter. Mrs J. William Sanders. all of Pine Bluft. Also. a brolher. J. Walker Bridges. of Wright. and 11 grandchildren.

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

110

Baptist University. died an Wednesday. November 28. 1973. "This IS a great personal and institutional loss, ' stated Or. Daniel R. Grant. president of Ouachita Baptist University Dr Kelly was a member of the Ouachita faculty since 1965. and was president of the Arkansas College Teachers of Economics and Business Association. She was also a member of the Clark County and Arkansas Bar Associations, the Arkansas and National Associations of Women Lawyers, a member of the Daughters of the American Revolution, member of the First Baptist Church of Arkadelphia. where she taught Sunday school class. a member of Della Cappa Gamma. and an active participant In college and community affairs Dr. Kelly"s courses on Business Law and Personal Finance were always favontes of the Ouachita student body. Dr. Kelly was actIve In the planning and construction of Ule Hall. which houses the DIVision of BUSiness and EconomIcs and Ouachita Dr Kelly was born In Soper. Oklahoma. attended Texarkana. Arkansas High School. Texarkana College and the UniversIty of Arkansas. majOring In prelaw and drama. She received her law degree from the University of Arkansas In 1951. and her Masters of Educalion degree In 1957 from East Texas State University. and had done work on a Doctor of Philosophy degree at LOUISiana State University Or Kelly's abilities and energies found her time to enter and work in the private practice of law since 1951. to be a member of the Arkansas Legislature as Representallve from Miller County. Arkansas. tram 1952 to 1954. serve as a graduate assistant at East Texas State UniVersity, chairman of the Speech Department at Nichols State College, Thibodeaux, LouiSiana, from 1957 to 1963. and In 1965 take up her special duties as Ouachita Baptlst University faCUlty member. She was an active lady lawyer and educator who will be greatly missed.

WILLIAM DULIN ROTHWELL, a wellknown attorney and civic leader of Crossett. Arkansas. departed this life on December 29. 1973 at the age of 39 years Mr. Rothwell was survived by hIS Wife, Mrs. Mona Lou Rogers Rothwell. two sons. DaVid and John Rothwell. all of the home, and hiS parents, Mr. and Mrs. John C. Rothwell. and his paternal grandmother. Mrs Dan Rothwell. all of Hope, Arkansas. At the time of his death. Mr. Rothwell was an attorney for Georgia Pacific Corporation in Crossett, Arkansas. He was a graduate of the University of Arkansas Law School. a former deputy prosecutIng attorney for Bradley County. Arkansas. chairman of the Crossett Airport Commission, former pr~Sldent of the Crossett Area United Fund. a member of the Crossett Rotary Club. and an aclive member of the First Baptist Church of Crossett. Arkansas.

JUDGE EDWARD LYNN WEST路 BROOKE, a distingUished Jonesboro lawyer and former Chancery Judge. died In Jonesboro. Arkansas on February 11 1974 at age 73 A native of Jonesboro. JUdge Westbrooke attended Washington and Lee University. and Harvard University He received hiS law degree from Northwestern University at ChIcago. He thereafter entered law practice at Jonesboro With hiS father. the late E.L. Westbrooke. Sr. DUring hiS legal career. Judge Westbrooke was attorney for the Northeast Arkansas District of the Frisco Railroad. a fellow of the Nalianal College of Trial Lawyers, a member of the American Bar ASSOCiation. and a member and Executive Committee Chairman of the Arkansas Bar ASSOCiation. He also served as Chancery Judge ,n hiS district from 1944 to 1945

The Arkansas Lawyer

Judge Westbrooke was Interested In and served as Vice-PresIdent General of the National Sociely of Sons of the American Revolution. and currently was Hlstonan General of the ASSOCIatIon He also was a member and past president of the Arkansas Sons of the American RevolutIon. and was a member of the First Presbyterian Church of Jonesboro. Judge Westbrooke was survived by hIs wIfe: a brother. Henry W Westbrooke 01 MIssouri. and three sisters. Mrs E.J. Braman and Dr Olive W QUinn. both of Maryland. and Mrs George Ogdon Hallan. of illinOIS.

JUDGE CHARLES C. WINE, a noted Arkansas attorney. former Arkansas Public Service Commission chairman. and a former Associate Justice of the Arkansas Supreme Court. died in Bentonville. Arkansas on February 9, 1974. at age 72. Judge Wine was semi-retired and lived in Bentonville. but also maintained a home in Texarkana. where he still maintained a law office. Born May 17. 1901. In Carthage. MIssouri. he later moved to Arkansas. where he was reared and subsequently attended the University of Arkansas at Fayetteville. He was a graduate of Cumberland University Law School. Lebanon. Tennessee. and began the practice of law at Texarkana In 1935. During his long and notable legal career. Judge Wine was appointed chairman of the Arkansas Public Service CommisSion by former governor Ben Laney. and later served out an unexpired term as Associate Justice of the Arkansas Supreme Court. Judge Wine was a member of the First Methodist Church of Bentonville. a veteran of World War L and a member of the American Legion. He is survived by his wife. Mrs. Anna Grace Phillips Wine of the home. and two sisters. Mrs. Helen Clouser. of Bentonville. and Mrs. Gwendolyn Rogers, of Fort Worth, Texas.

April, 1974

THOMAS B. TINNON - It was on February 6. 1974. In Assembly before the Chancery Court of Baxter County, Arkansas. that Bench and Bar paid solemn respects to a deceased active colleague. a practicing lawyer. a CIvic leader, and noted Arkansan, Thomas B. Tinnon of Mountain Home. Arkansas,

whO expired In January. 1974. at the age of 58, while on a triP to Washington. The following Memorial of the BaxterMarion County Bar Association was read in Open Court by the Honorable Gordon F. Engeler, Jr.. President, and ordered spread of record by the Honorable Ernie Wright. Chancellor of the District:

IN MEMORIAM The Baxter路Marion County Bar Association and the individual attorneys comprising said associatIon hereby pay tribute to our late member and fellow confrere, THOMAS B. TINNON. As a person and as an attorney, his unfailing efforts on behalf of this association. his constant and devoted efforts in civic affairs toward the betterments of Baxter County and the State of Arkansas. his gracious assistance to attorneys individually and in guiding and aiding young persons toward worthwhile vocations in life. will long be remembered and constitute and will continue to constitute a loss which we and the community can ill-afford to lose. DATED: January 30. 1974. THE BAXTER-MARION BAR ASSOCIATION BY: Gordon F. Engeler. Jr., President

ATTEST: Drew Luttrell. Secretary

0.0. Pendergrass James C. Johnson John A. Crain Jennie F. Pond Albert L. Cox Terry M. Poynter Kenneth R. Smith

ThIS expression by his colleagues of Bench and Bar demonstrate the esteem and respect for Mr. Thomas B. Tinnon by those who knew him best. Mr. Tinnon distinguished himself in all that he undertook. He was a senior partner of Thomas B. Tinnon Professional Association; he actively practiced law in Baxter County for 24 years; he organized Baxter County's First MuniCipal Court and served as its judge: he also served as City Attorney, was past president of the Chamber of Commerce. helped organize the First State Building and Loan Association and the First National Bank and Trust Company. all of Mountain Home. Arkansas. He set up Baxter County's Planning Commission, and participated in many county road improvement projects. He was attorney for the North Arkansas Electric Cooperative from 1952 to 1966. He was past president of the Arkansas Wildlife Federation. and assisted in presenting the state's first water conservation laws. He offered himself as a candidate for several important state and district offices, and maintained an active interest in political affairs. A 1949 graduate of the University of Arkansas Law School. Mr. Tinnon was a

Michael E. Kelly Leo J. Carney Frank J Huckaba DaVid L. Osmon Ted H. Sanders Nell Power Wright Roy E. Danuser Edward J. Cunningham

member of the Amencan and Arkansas Bar Associations. and served as chairman of the First Special Section of Savings and Loan Attorneys for the Arkansas Bar Association. He was licensed in and practiced before all state and federal courts, including the U.S. Supreme Court. the U.S. Court of Appeals, the U.S. District Courts. the Arkansas Supreme Court, and various administrative agencies. such as the Treasury Department, and the Interstate Commerce Commission. Mr. Tinnon's energies and capacities found him time to participate as a member of the Baptist Church. the Masonic Lodge. the American Leg ion. and the Disabled American Veterans. He was a veteran of World War II. Survivors include his wife, Mrs. Adele King Tinnon; a daughter. Mrs. Ed Cunningham 01 Fayetteville; a sister. Mrs. A.N. Derouin of North Carolina. and hiS lather and stepmother. Mr. and Mrs Hugh Tinnon of Cotter. Arkansas Thomas B. Tinnon will long be remembered. and his passing is a noticeable loss to his colleagues. friends. and neighbors of his community, area. and state.

111

by Director J. Steven Clark

Director Clark

Dean Wylie Davis attended a Dean's Workshop at the Midwinter meeting of the American Bar Association in Houston. January 31 - February 2. Newly elected officers of the Student Bar Association at the Fayetteville division are Ron Williams of Little Rock. President; Larry Crane of Hot Springs, Vice-President; Steve Vowel of Green Forest. Secretary; Susan Webber of Texarkana, Treasurer; and Buster Guthrie. Faculty Representative. Joseph H. Purvis is the new president of the Student Bar Association of the Uttie Rock Division of the University of Arkansas Law School. The other officers are Lonie McAllister. Vice-President; Sandra Harper. Secretary; and Doug Mays. Treasurer. The SBA at the Fayetteville Division is providing the funding for a law school newspaper titled "Imprimatur" edited by Mark Stodola. The Arkansas Bar Association recently purchased and delivered for use to the Fayetteville division and Central and West Arkansas. Sony video-tape equipment. This equipment will allow the school 10 use the Bar's library of video tapes to present instructional materials. Professor Morton Gitelman was re-

112

cently elected Chairman of the Fayetteville Planning Commission. Professor David Newbern has recently been appointed to the Board of Adjustment of the City of Fayelteville. Margie Chapman. Fayetteville division law student and 1972-73 national president of the Intercollegiate Association of Women Students was one of a panel of 16 women from across the country who met recently in New York to determine the winners of the second annual Ladies Home Journal's "Women of the Year, 1974." Law Day at the Fayetteville division will be celebrated April 12 and 13 with a picnic. banquet. dance. and traditional "Law Day Skit." February 22nd bar examiners Bill Penix. Jonesboro; Joe Woodward. Magnolia; and Robert Henry. Conway. participated in an SBA-sponsored panel discussion on the bar exam. Professor Fred Spies attended the annual meeting of the American Academy of Forensic Sciences in Dallas during the week of February 11. and moderated a panel on ABA Standards for Criminal Justice. At the Dallas meeting Professor Spies was elected a Fellow of the Academy. the first attorney in the stale so elected. Eighteen students have been named

staff members of the Arkansas Law Review. published by the University of Arkansas School of Law. according to Richard John Morrisey. III of Russellville. editor. Named to the staff were Larry E. Crane of Fayelteville. Wayne B. Ball of Little Rock. Boyd Cox of Fayelteville. Edward Cochran of Bradley. John R. Cullen of Fayetteville. Mark W. Grobmeyer of Little Rock. Fred J. Hart of Little Rock. Donald H. Henry of Springdale. Phyllis H. Johnson of Fayelteville. Rodney D. McDaniel of Texarkana. John David Myers of Uttle Rock. Walter H. Pupko of Douglaston. N.Y.. David E. Smith of Hot Springs. Octavia Vashti Varnado of Pine Bluff. Steven E. Vowell of Green Forest. Buford B. Wiley of Fayetteville. Ronald A. Williams of Little Rock. and James R. Williamson of North Little Rock. Membership on the staff of the Law Review is limited to the top 10 per cent of students in the School who have taken at least 26 semester hours of study to law. Participation involves substantial legal research and legal writing. The Chapter of Phi Alpha Delta. the national honorary law fraternity. at the Little Rock Division of the Law School elected Phillip Farris. Justice; Jerry Glover. Clerk; and Mike Beardon. Treasurer. J-

Lawyers' Mart HELP WANTED Openings for two law graduates on editorial staff of nation's leading publisher of city and county codes. Some editorial experience preferred, but not required. Prior practice or membership in State Bar not required. Please send resume and salary requirements to Municipal Code Corporation, P.O. Box 2235, Tallahassee, Florida, 32304.

FOR SALE: Arkansas 1-46; ALR 1,2,3; Southwestern 151. Labor Cases. Box 1624, Wilmington. Del. 19899.

....

Conference Room Furniture ARKANSAS BAR ASSOCIATION 400 West Markham,

lillie Rock, Arkansas Phone: 375-4605

The Arkansas Lawyer

A high standard of professionalism is just as important to us as it is to you .

.IIF John/on, moo,man a. Pc"a,i In/ulancc 8 Bonding

104 North 16th

Fort Smith. Arkansas

Phone 501 785-2338

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

A GREAT TRIP A GREAT VALUE.

ci898

plus 840 tax and service lncluding: DircctC hart.ercd. Jet fiiglHs, dclmle hotels, AJllclican brcakfasL<;, gou011Cl meals at a selection of tllC fulCSl rcsta llronts, transfers and a generous 70 lb. luggage alluwance.

DEPARTING LITTLE ROCK -

JULY 30, 1974

r--E~;ci~~~-;di~-~;;~-h~~k-f~;-g--------_路_(-31(jO~;~;~~~;~~~;);~-d~~;~i~~I-~;;d~;~;'~~---: the total deposit wUI be l-eflll1ded if it becomes necessary to cancel Illy Scandinavian : Adventure membership at least 60 days before departure, when final payment : isduc.

i-:,:;-',7'''''I''拢''5--------------------------------1-:""0"'0=I<"E"55,,.路-------------------------------i-:C"'I;"T"'Y,....:------------....,,5"T.7.r:;:;::E----------"Z711" .------!:-__:c=,.,_:, PHONE __:'__~_,.,_,.,_"'__:'._:c_-_-_-__:'__:'__"_,,_,,_,,___:'_,,_,,_,,_,,___:'_,,_,,_,,__:'__,,_,,_,,_,,_:c__-_,,_,,_,,__:'__-_-_-_7__::_::_"_7__::_::_"_7__::_::_"_".7__::_"_"_"_7__"_"_"_"_7__"_"_,,_,,__,", ~Iuke

Your ltescrvutlOlls Xow- Spoce Strlctl~' Limited