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2
JANU A RY , 1973
By B. G horml ey
celebrated in October. Jerry Post , Batesvi lle, was guest speaker at a November meeting of the Modern
Judge Simpson
Judge Harrell Simpson , Pocahontas. was elected President of the Arkansas Judicial Council at a meeting during October. During this meeting Judge Harry Crumpler, Magnolia, was given a lifetime membership in the Council. Dougla. Wilson , Rogers, was elected Chairman of the Committee of Juvenile Code Revision and Legislative Evaluation during a November meeting . A seminar for all Municipal Court Judges, City Court Judges and Justices of the Peace holding court was held in Hot Springs Nov . 30-Dec . 1, sponsored by the Municipal Judges Council, Judicial Department and the Governor's Coordinator for Public Safety. Judge Ford Sm ith , Augusta , was honored at a ban q uel in Wynne during October. John B . Moore, Clarendon. was presented the Arkansas Conservation Achievement Award in water resources at the November meeting of the Arkansas Wildlife Federation. Governor Bumpers made the presentation. Kent Coxsey, Berryville, has been sworn in as an Advisor to registrants for the draft. Robert W. Henry, Conway, has been appointed to the State Board of Law Examiners and Bill Penix , Jonesboro, has been reappointed. Nicholas Bierwirth , Frank Morledge of Forrest C ily, Otto Boeckmann , Gordon Humphrey of Wynne , and S. Woo te n Epes of Helena were licensed to practice before the Federal Court during Oct ober. Henry Wood s, Little Rock , was a speaker at the initiation ceremony of the Robinson Chapter of Phi Alpha Delta Law Fraternity. Chief Justice C arleton Harris, Little Rock , spoke at a November meeting of the Student Bar Association of the Univ. of Arkansas at Litt le Rock. Edward L. Wright , Little Rock, made a keynote address at the annual Red Mass which was T H E ARKA NSAS L AWY E R
Rubens, West Mem phis , has joined Edward J . Rubens and they now pr actice under the law firm of Rubens and Rubens with their office relocated in the Buntin Bldg. Linder and Moore, Ltd. , o f Li ttle Rock and Jacksonvil le, now has an offi ce in Hamburg . Tom Allen , Batesville, has opened his own law office located in the Barnett B ldg. Brown , Compton and Prewett, Ltd ., EI Dorado, has opened an o ff ice in Camden staffed b y Eugene Bramblett and located at 213 Van Buren St. Marvin Robertson , Cabot, is now associated with Joe Gunter and they practice under the firm name of Gunter and Robertson . Lloyd Henry, Jr., Searcy, is associated with Boyett and Morgan . Walker , Kaplan , Mays , P.A ., little Rock , have announced the association of John M . Bltheimer. Esther M . White and Terry R. Kirkpatrick , Fayetteville, announce the formation of a
J L.J
'....,.. Professor Brockm ann Woodmen of America. Prof. Robert G . Brockmann , Fayetteville, resigned from the faculty and has opened a law office with James H . Broyles, Jr. , located in the Hathcock Building in Fayetteville. Edwin Bethune, Searcy, has opened his own law office in Searcy. Robert Tolson , Jr. , Pine Bluff, has joined in to a partnership with John Harris Jones and Wayne Matthews to form the law firm of Jones, Matthews and Tolson with offices in the National Bldg . Hoyt Thomas, former ly of Little Rock , has opened his law office in Heber Springs with offices located at 108 So. Fifth St . Moore, Logan and Berryhill , Harrison , have relocated their office in the Heuer-Wi lson Annex, 119 W. Capitol. Haskins, Ward and Rhodes , Little Rock, has announced plans to bui ld an office bui lding at Third and Ringo Streets. House, Ho lmes and Jewell, little Rock, have opened a branch office in Beebe with offices located at 110 Center Street and staffed by Robert Robinson two days a week, Tu esdays and Fridays . L. Philip McClendon, Pine B luff, has beco me associated with the law firm of Reinberger, Eilbott , Smith and Staten . Kent
Ester M . White and Terry R. K irkpatrick partnership under the name of White and Kirkpatrick. Eugene J . Mazzanti, Paul A. Schmidt and Jerry E. Mazzanti , Little Rock , announce the forming of the law firm of Mazzanti , SChmidt and Mazzanti with offices located at 505 Union life Bldg. Thomas D. ledbetter, Harrison , announced the association of William Wesley Hylton III in the practice of law as Ledbetter, Hylton and Associates and they now have an o ff ice located at 88 South Main , Eureka Springs. New officers for the Southwesl Arkansas Bar Asso ciation have been elected : President, F. Embry Pickett j Vice-President, Donald l. Corbin ; and Secretary-Treasu rer, Talbot Feild , Jr. Greene-Clay County Bar Association hosted a fish fry for local law enforcement officers and county officials. Hot Spring County Bar Association sponsored a law mini-seminar with speakers including: Judge John Fogleman, R.A. Eilbott and Jack Holt , Jr. Union County Bar Association invited Mr. R. Glenn Vawter, Denver, Co lorado, Manager of Oi l Shale Development fo r the Oil Shale Corporation to speak at Continued on page 4
3
(&REATER 14EGAl
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Ray mond E. Tyra its October meeting . Raymond E. Tyra has been appointed staff director 01 the Law Student Division of the American Bar . Mr. Tyra obtained his law degree from the University of Arkansas
REGISTRATION WILL BE 8:30 A.M. -9 :30 A .M.
in 1970 . •
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4
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JANUARY, 1973
PIESIIIIT~S
BEPOIT By Henry Woods
Since my last report to you , I have been working virtually full time on two of o ur maj : projects: the new Bar Center and the legislative program . Many o f yo u have been working on these same matters. It is already obvi o us that the Bar Center drive is going o ver the top . In the planning for this drive, it was agreed that $200 ,000 would be raised from Association members and $100 ,000 would be o btained from large gifts and memo rials . The first goal has already been surpassed, as a result o f yo ur generous contribut ions and pledges . There is no question but that the sec ond will also
be reached .
Scheduled completio n date fo r the Center is September 8 , 1973. We are assured that this will be the finest Bar Cen-
ter in the United States. The buildings and property on which the center is located will cost approximately $1 ,200,000. In front o f o ur Center will be a plaza and urban forest constructed with Federal funds at a cost of $800,000. The Center is constructed over a 500 car parking garage that will give access to our facility through two elevators .
The structure will ho use a law library that is fast becoming one of the best in the South. Besides our Executive Director and his staff , it will also contain the Evening Division of the University of Arkansas Law Sc hool. In the plan is a beautifully furnished club room for the use o f Arkansas lawyers, their families and their guests. There will be another room provided entirely for the use of o ut of town lawyers for conferences and depositions.
THE ARKANSAS LAWYER
A part of the money being raised will be used to establish scholarships at the University of Arkansas Law School and for research pro jects . There is a preSSing need in both these areas which your generosity will help to meet. For the first time, continuing full-time scholarships will be provided by Arkansas lawyers to deserving students.
In order to receive favorable consideration for our ambitious legislative program , it was felt that we had to take it to the legislators in person with an adequate explanation. A meeting was set up in each bar district to which all the legislators in the district were invited . Our major legislative prop osals were then explained in detail by the lawyers most actively involved in the drafting of the proposals. Many legislators have expressed warm appreciation for our interest in making an effort to acquaint them with our proposals pri o r to the session . We have also had two briefing sessions with Governor Bumpers. The last session was held on the Governor's initiative with his entire legislative staff in attendance. We are most gratefu I for the interest he has shown in our legislative proposals.
The enactment of our bills in the hurly-burly of a Legislative Session is go ing to depend on how well our membership supports the program by contact with their own Representative or Senator. We have a fine legislative liaison man in Bill Wilson , but he cannot be effective without support from the lawyers out in the legislator's district. I am confident you will give him this support. .
5
Edward lester
Will S. Mitchell
J. C. Deacon
6
New Bar Center Memorials
With the current fund drive for the new Bar Center well underway, Chairman Edward Lester of the Arkansas Bar Foundation wishes to direct the attention of all concerned to the memorials program for the new Bar Center. Chairman Will S. Mitchell of the Foundation 's Memorials Committee and Chairman J . C. Deacon of the Association 's Past Presidents Committee will direct the memorials program . Mr. Mitchell has been responsible for the initial planning and for the development of the types of memorials. Mr. Deacon will be directing the campaign to make the memorials available to possible sponsors. In his report , Mr. Mitchell states: The Memorials Committee is responsible for seeing to it that every deceased Arkansas Lawyer who should be remembered in a permanent way at the Arkansas Bar Center is so remembered. Many families , friendS and former clients will desire to honor the memory of a deceased attorney through gifts to the Foundation and it is hoped that County and District Bar Associations will memorialize others from their areas . A w ide variety of memorials is available - entire rooms , a monumental
tapestry to depict the Bar, specific items of furniture , portraits, gifts to program , and individual scholarships are among them. A brochure giving more details can be obtained from the Bar Center. Gifts can take the form of cash , pledges, transfers of shares of stock or other assets to the best tax advantage of the donor, creation of an Intervivos Trust with annuities reserved to the donors and remainder to the tax exempt Arkansas Bar Foundation , or variations of those and other methods. While the ostensible purpose of the Bar Center is that of a " service center," in the truest sense , for individual Arkansas Lawyers and the Organized Bar, it will symbolize all of the ideals of Arkansas Lawyers of every generation and thus pay respect where respect is due - to a grand heritage from our predecessors and to the dedicated and sometimes courageous efforts of the present and future generations toward the preservation of liberties, development of better prepared attorneys, and improvements in the Administration of Justice. A memorial gift will thus, in every sense of the word, be an investment in the
Law .• JANUARY, 1973
(§Ie
Arkansas Lawyer
"'"''''
..... .. ~
"'.1 .....
1 January 1973
TO ALL CONCERNED: This is the second issue being devoted to the history of law in South Arkansas and to our living Past Presidents in the area. We would urge that every lawyer read the cover stories by Judge Ed . F. McFaddin and his message. The Memorials Program of the Arkansas Bar Foundation for the new Bar Center will afford the opportunity "to remember those who deserve to be remembered. " The Arkansas Lawyer
.... "'••"..
•• "SEY
There are many people who have excepti onal ability in some field , but qualities of warmth and personal magnetism combined with professional competence are rare. Lo uis L. Ramsay , Jr. is one o f those rare individuals. H is profe ssional and personal career has been filled with significant achi evements, but he has been recognized by people in all areas o f life as a warm friend. Louis Ramsay acquired the nickname " Ramrod" as the tall , slender
quarterback for the 1938-40 Razorbacks. An abbreviated version of this nickname decorated the fuselage of
the C-47 he flew as a pilot in the U.S .
Lou is L. Ra msey, Jr .
THE ARKANSAS LAWYER
Army Air Corps in Eu rope during World War II. Unique among all o f the aircraft symbols was the red figh tin g Razo rback painted on his airplane with the inscription " Ram 's Razo rbacks." After Louis was discharged as a major in 1946, he returned to the University of Arkansas to complete his law degree there, which he received in 1947. Directly from law school , he
came to Pine Bluff to become a member of the then firm of Cole & Gantt. While vigorously engaged in the law practi ce, Louis has also been quite active in the business world. He became a director of Simmons First National Bank in 1952 as a very young man . At his very first Board meeting as a Director o f the Bank, Louis cast the lone " no" vote on a small loan which the President had recom-
mended to the Board of Directors. Al though nothing was said to him about his solitary " no" vote at the time , within a few days he received an anonymous ca rtoon picturing an employer speaking to an employee with the words : " Higby, it has been a pleasure to have had a man of your character who is willing to stand up for his convictions in our organization . Good luck and good-bye." However, instead o f leaving the Board o f Simmons First National Bank , in 1971 he became its President, in addition to his activities as a practicing lawyer. Continued on page 8
7
To say that Louis has been active and effective in his civic and professional activities would be a gross understatement. There are few offices of responsibility in the City of Pine Bluff which he has not held and served with distinction . He has been President o f the Je ffe rson County Bar Association , the Pine Bluff Chamber of Commerce, and the Pin e Bluff Rotary C lub . He has been Chairman of the Official
Board
of
First
United
Methodist
Church o f Pine Bluff. He was an organizer and has been a Directo r of the Jefferson County Industrial Foundation and Fifty for the Fu ture of Pi ne Bluff, Inc. since their found ing . In ad d ition to his service as President and a Director of Simmons First National Bank , he also serves as a Director of Meyer's Bakeries, Inc ., Arkansas
Oak Floorin g Compan y, Fox Brothers Hardware Co. , Ben Pearson M anu facturing Company and Rel iable Abstract & Title Com pan y. Notwithstanding his numerous business and civic attainments, Bar activities have predominated in Louis ' interests and achievements. He served as an inn ovat ive Presiden t o f the Arkansas Bar Association in 1966, and received the Outstanding Lawyer Award of the Arkansas Bar Foundation for
1966. He is a fellow in the American College of Tr ial Lawyers , the American College o f Probate Counsel, and the Ameri can Bar Foundation , and a member of the Board of Directors of the American Judicutu re Society. He has served in the House of Delegates of the American Bar Association as a representative of the Arkansas Bar Association . Fo r several years he hos been an active member of the Board of Directors of the Arkansas Bar Foundation. One wall of the Ramsays' den is covered in plaques commenorating Louis ' numerous Bar activities and achievements. Sometime ago, when neighbors with a rather young son were visiting the Ramsays , Louis was busily engaged in preparing refreshments behind a counter in that den when the young son , watChing both his prep arations and the insc riptions on the plaques on the wall, com mented to his father, " Dad , t didn 't know Mr. Ramsay was such a bartender! " No institution has been closer to Louis ' heart than the University of Arkansas. He is a life member of the Alumni Associati on and has served as its president. In addition , he has served as president of the End ow ment
Trust Fund . Since 1970, he has served as a member of the Board of Trustees of the University of Arkansas which is truly a labor of tove for him. For many years, Louis did not miss a single Razorback football game, and he misses on ly those which he is unavoidably prevented from attending . President Nixon recognized his interest in education by appointing him to the President's Advisory Committee on Public Education for the State of Arkansas o f whiCh committee he serves as chairman. There is perhaps no better description of Louis than the one given by a friend when Louis had been mentioned as a possible gubernatorial candidate. " Louis is the on ly man I know who would receive every vote of every person wh o knows him. and he is extremely well known. " The speaker was reflecting the feeling of the numerous people that Lo uis calls ·· friend ·· for whom he feels and demonstrates genuine affection and concern . As athlete, father. husband , sportsman , civic leader, churchman , busi~ nessman , and above all , lawyer, Louis Ramsay, Jr. has evidenced qualities of ability and integrity that make him a man for all seasons .•
the to welcome the members of the Arkansas Bar Association for their 20t h Mid-Year Meeting , January 17-20, 1973.... . .. and . . .
to introduce Mr. J . E. Lewis as our new Sales Conference Manager , Mr . Lewis was with the Majestic Hote l from 1949 until 1972, serving in all Front Office positions. Duri ng more recent years, he served as Director o f Sales and Conventions. Mr. Lewis became assoc iated with the Arlington Hote l on November 1, 1972 as our Conterence Sales Manager, He is looking forward to serving his many friends who return to Hot Springs for seminars and conven ti ons .
Mr . l ewis
8
JANUARY, 1973
fill'" 8. VII"••
The Young's
A native of Malvern where he graduated from high school. Served in the Army in World War II. Attended Hendrix College, and graduated with honors from the University of Arkansas Law School in the Class of 1947, where he served o n the Arkansas Law Review . After graduating from Law School , practiced law at Malvern until 1953 when he moved to Pine Bluff to become a member of the firm with which he now practices , Bridges, Y oung, Matthews & Davis. His record of service to the Bar Association includes Chairman of the Junior Bar Section (now the Young Lawyers Section) in 1952-53; Chairman of the Arkansas Bar Foundation , 1963-64; President of the Arkansas Bar Association , 1971-72; and Chairman of the 1970 Annual Meeting Committee. He has also served as a member of the Association 's Executive Committee and on numerous other committees. He was on the Arkansas Supreme Court's committee on jury instructions which compiled the Arkansas Model Jury Instructions. He served one year as President of Jefferson County Bar Association and is pre-
I t
sently a member of the Program Committee for the Annual Judicial Conference of the Eighth Circuit Court. He served on the Pine Bluff School Board for ten years, and was President of the Pine Bluff Chamber of Commerce in 1970. He is a member of the Pine Bluff Rotary Club, having served as President in 1964 . He is a member of Lakeside United Methodist Church , where he has been on the Official Board for many years and has taught an adult Sunday School Class for almost 20 years. Quiet and unassuming by nature, he is famous for his dry wit and is held in high esteem by all of his acquaintances tor his knowledge of law, his good judgment , common sense and practical approach to any problem. An outstanding student in law school, he was nicknamed "Cardoza" by his classmates and is still affectionately referred to by members of his class either by that name or "Youngun ." He is married to the former Marcella Batchelor, of Malvern . They have two sons, Paul , Jr. a first-year law student at the U of A, and David , a sophomore at Hendrix .•
1N1l1lIlM 5.
118".1.
William S. "Bill" Arnold of Crossett is a lawyer's lawyer. All who know him would agree that he is devoted to the practice of law and is constantly alert for opportunities to improve and develop the law and to further the finest principles of the legal profession. It has been said that he is devoted to his family, church and the law - but his wife , Mary Ellen, might comment that the order of his devotion might be reversed . Although born in Yonkers, New York , on February 5, 1921, his parents, L.J. and Hazel S. Arnold , brought him to the small logging town of Crossett In 1924 , where Bilrs father later became manager of Crossett Lumber Company. Following his graduation from Crossett H igh School , Bill attended the University of Arkansas at Fayetteville and obtained an A .B . degree in 1942. While at the University he met and married another student, Mary Ellen Gittinger. After graduation , with World War 11
10
in full swing, Bill entered the Army Air Corps and served until the end of the war . He then re-entered the University and began studying law , receiving his L.L.B . in 1947 . Even at that time he indicated a desire to know more of the law than the minimum required and he promptly enrolled in Columbia University in New York City where he received an L.L.M. in Corporation Law in 1948. With this preparation for what might have been an entry into practice on Wall Street or perhaps in a large Little Rock firm , Bill decided to return to his home and become a " country lawyer. " He first opened an office in Hamburg , which his firm still maintains, and shortly afterwards another in Crossett. As President of the Arkansas Bar Association, Bill championed the idea of the multi-office practice as a concept for providing better and more specialized legal services in non-urban areas , and this idea has been implemented in many areas of the United States. Since returning to Ashley County, Bill and Mary Ellen have resided in Crossett. They have two Children , Patricia, now married and living in Omaha, Nebraska, and Richard , a law student at SMU. Hard work is another of Bill's characteristics and one to which he subscribes who leheartedl y. Since return to Ashley Counly he has engaged himself in virtually every facet of community affairs . He has served ' as a Sunday School teacher for twenty years, has been Chairman of tt1e Administrative Board of his church , and has been chairman of many of its major committees. In civic affairs, he has served as President of the Crossett Jaycees, its Chamber of Commerce, the Prairie Country Club. Hamburg 's Rotary Club and DeSota Area Boy Scout Council. His leadership in these areas is exemplified by his receipt of the Silver Beaver Award by the Boy Scouts and a Distinguished Service Award by the Crossett Jaycees. He was also Chairman of the Committee in Ashley County that had the primary responsibility for designing and constructing the new Ashley County Courthouse, located in Hamburg, which was completed in 1969. In other public affairs , Bill has served as Deputy Prosecuting Attorney for Ashley County, Crossett City Attorney, and as Trustee for the Crossett Health Foundation, which operates the Crossett Hospital.
With all the activities mentioned it is clear that only a person w'Uh boundless energy, outstanding ability to organize and a real love for the law would still have time to work for the betterment of his chosen profession. Bill has always worked , on the local , state and national leve ls, to make the legal profession a better profession. A firm believer in the organized 8ar, he has served as Chairman of the Southeast Arkansas Legal Institute, his local Bar, and in most endeavors of your Arkansas Bar Association . He chaired the Fair Trial-Free Press Committee of your association and has served on other committees. He became president-elect of the Arkansas Bar in 1966 and its president in 1967 . He has served by appointment in connection with Arkansas ' prison "whipping " cases and has served as Special Justice of the Arkansas Supreme Court. On a national level, Bill has been active in the American Bar Association serving on its Special Committee for Adoption of Code of Professional Responsibility. Other of Bill's present commitments are as a member of the National Association of Insurance Counsel , Fell ow in the College of Probate Counsel. and Commissioner for Arkansas for the Commission of Uniform State Laws. As one who always seeks a new challenge and with deep commitment to the legal profession , Bill Arnold epitomizes the better things in our communities , our profession , and the organized Bar .•
Mary Ellen Arnold JANUARY,1973
TH~ PR~~ID~NT'~ ADDR~~~ • •
Louis L. Ramsay, Jr. President , 1963-64 Arkansas Bar Association
• •
I submit that in our present day world the individual lawyer may not be assuming the full responsibility that his influence demands. A report made at the Boulder Conference in 1956 regarding Legal Education and Public Responsibility indicated that in a study made to determine the groups who influence American thought and American thought patterns, lawyers were accorded an index of 57 while the nearest group to it was 17 . This is indicative of the power and with it the responsibility that we have to help mould public opinion on matters involving the public interest . Our predecessors in the profession earned for us the reputation of law maker and society builder through the challenges of revolution and rebellion . This fine tradition has been carried down through the years as evidenced by the leadership that lawyers have displayed in all fields involving their country and their community.
******
--pllrtinlwt Ilxtraets from his Prllsidllnt's Addrllss - -
But my question and challenge to you today is whether or not the lawyer is still vigilant and still active enough in matters of public concern . One of our country's and one of our state's most acute needs today is leadership. Leadership that will arouse and inspire our people as was done in earlier days. Whenever our people have exercised their rights and privileges as citizens, whenever they have shown a great interest in public matters , our country has grown strong and virile. It is only when interest is lacking , issues are not debated and leadership is lackadaisical that we fail to move forward properly.
******
In analyzing our Association and our responsibi lity to the public , we must first recognize the makeup and background of our membership. Our profession is unique in that we are trained to form ou r own opinions, to speak out and act on matters based upon our own thinking and our own judgment. We are trained to test, to joust, to parry and to point out weaknesses in arguments or positions contrary to ours. We are a profession made up of different kinds of men and women with different backgrounds and different political and religious beliefs. We represent different types of c lients and we have different types of practice . Our interests are extremely diversified but with all this considered we still make up one of the best cross sections of America as we know it today. 12
I submit to you today that lawyers must make an effort to ho ld to our place of lawyer-leadership in governmental and public affairs and we must, if necessary, make some sacrifices to see that we carry forward the trend set by our predecessors. Lawyers have never been found lacking in courage , intelligence and energy to accomplish their objectives . These characteristics must be displayed not only in dealing with the affairs of Our clients, but they must also be shown in dealing with affairs of the public.
*.* * * *
The public has a right to expect lawyers to lead the forces for good citizenship, partic ipate in and encourage the settlement of community prob lems, promote the advancement of our educational system, endorse harmonious relationships between all JANUARY, 1973
A LOOK IN THÂŁ MIRROR people, cooperate with the public interest and support portant role in our lives. It serving and it is the public our services.
news media in matters of the churches in their imis the public that we are that we must satisfy with
******
In the coming session of the Legislature there will be laws proposed and enacted that will govern the lives of our citizens. We should keep abreast of these developments as best we can and inform our people on those that may be of a controversial nature . We should encourage the use of voting machines and make every effort to see that means are found to provide this facility for our voters. We should engage in politics, when required , not necessarily as a candidate for public office, but as leaders who attempt to constantly improve our government and its processes.
******
One final suggestion that I make at every occasion that presents itself. We should be proud of our state and its people and do all that we can to show the rest of the nation and the world tha t this truly is the "Land Of Opportunity". When I observe the people of our state in the high offices that they hold on the national
scene , in government , in American Bar Association, in the professions, in the business world , in sports and now with Miss America, it gives me a sense of deep pride that I am an Arkansan and that these fine people represent my state and are illustrative of the people here . We must quicken to dispell the image of the Hillbilly, " The Slow Train Throu gh Arkansas " and the " Grandpa Snazzy" of the old Bob Burn 's stories. These are of a bygone era and the sooner buried the better. We must look to the future with pride and we must emphasize and point out the improvements in our educational system , our economic condition , our highways, our success in attracting new industry and all of the things that give us the " New Look " in Arkansas. Lawyers can take the lead with other citizens in creating the new image and new attitude for a progressive state .
******
As lawyers we are called to high adventure and new opportunities. So long as we see the imperfections in an imperfect world and an imperfect society there is work for us to do . I know within my own heart that the lawyers of Arkansas will rise to the task .
Our Admiration And Rilspilct For louis Arll Mirrorlld In This Tildimonial , , ,
~ FOX B llOTHER.S I-IAR.O\\i\RE C O:\IP r\~Y
500 Rhinehart Rd.
BROWN MANUFACTURING COMPANY Sam L. Bro wn
Pine Bl uff, Arkansas
Pine Bluff. Ark. 71601
w. inCl, PINE BLUFF
ARKANSAS
[W~IiiJ@
W. S. Fox
Yellow Pine -
Lumber
Pine Bluff, Arkan sas
OAK LAWN FOODS, INC,
THE MAD BUTCHER Pine Bluff, Arkansas
Allan Bellamy
S. FOX & SONS, INC.
Hardwoo d -
IIDQMQQ G~I?@ &, I?MIIDIID@I? @@)o
J. M. Shults , President
PINE BLUFF CRATING & PAllET, INC.
CLARENCE ROBERTS W. H . ROBERTS
THE ARKANSAS LAWYER
D. E. ROBERTS
LEONARD R. BRAZIL
13
JURIS DICTUM by C.R. Huie Executive Secretary. Judicia l Depart ment
At the annual meeting of the American Bar Association held in San Francisco in August, 1972, new standards governing the responsibilities and conduct o f trial judges were considered by the House of De/egates . The following news relea se covering the action taken by the ABA Ho use 01 Delegates should be 0 1 interest to all Arkansas Lawyers and Judges.
A.B.A. Adopts Standards Governing Responsibilities, Conduct of Trial Judge The American Bar Association has adopted a new set of standards governing the responsib ilities and conduct o f the tria l ju dge. The Association 's poli cy-making Ho use of Delegates approved the standards during the ABA annual meeting here. Although they touch on various aspects of the administration of criminal justice - from issuance of warrants through post -convictio n proceedings - the new Standards Relating to the Functi on o f the Tri al Judge emphasize the judge's responsibilities and conduct before and during trial. They also include recommended procedures for dealing with judicial misconduct and in co mpetence, and provisions fo r retirement o f judges due to disability. One porti on of the standards, on the judge's role in dealing with tria l disruptions, was adopted by the House of Delegates in July. 1971 . The standards were deve loped by the ABA Advisory Committee on the Judges' Functi on, chaired by U. S. District Judge Frank J. Murray . Boston. Judge Murray is also board chairman of the National College of the State Judiciary, and former chairman of the ABA Section o t Judicial Admin istration and the National Conferen ce of State Trial Judges. The Ho use has already approved 15 sets of guidelines cove ring other aspe cts of criminal justice. Th e new standards provide that the judge bears the responsibility to " d irect and guide the course of the tria l." with the power to c larify obscure issues or evidence, prevent unnecessary delay, and pro mote fairness and dign ity. The introduction to the standards states that " Unless the judge possesses and , when necessary, exerts power to curb excessive and prejudicial zealousness on the part of
14
the prosec uto rs, the rights of defendants would be exposed to serious abuse . And, man ifestly , unless the power of control exists, the interest of society in preserving the cri minal cou rtroom atmosphere as a place where trials can proceed wit h dignity wou ld be frustrated by unchecked misconduct on the part o f the accused, counselo r others." The standards allow for rem oval from the courtroom of a defendant whose conduct is " so disruptive that the trial can not proceed in an orderly manner." Rem oval is considered preferable to gagging or shackling the disruptive defendant. If rem oved, the defendant is to be kept in the court building , allowed to meet with counsel , and given a cont inu ing opportunity to return to the courtroom upon his assurance of good behavior. The judge also is to restrain his own conduct and speech. "He should not perm it any person in the court room to embroil him in con fli ct ," and should avoid cond u ct which " tends to demean the proceedings or undermine his authority in the courtroom. " If an attorney seriously disrupts a criminal proceeding, the judge is directed by the standards to " co rrect the abuse" and, if necessary, discipline the atto rney through censure or reprimand, citation or pun ishment for con tempt, rem oval from the co urtroom , o r tempo rary suspension of the attorney's right to practice in that court. Anyone else who "wi llfully obstructs the course of cri minal proceedings" may be punished by the judge. The standards specify that no sanction other than censure should be imposed unless the conduct is c learly " contemptuous " or carried on after prior warning . The standards urge each jurisdiction to establish an independent
commission - composed of lay citizens, lawyers and judges - to investigate complaints of judicial misconduct o r incompetence against judges. The findings wou ld be presented to the highest court in the jurisdiction , which would be empowered to censure, suspend or remove the judge. Each jurisdiction also is advised to provide for prompt retirement of ju dges who become physically or mentally disabled from fulfilling their duties. The standards urge tria l cou rt s to adopt rules prohibiting court personnel from disclosing, without court authorization, any information relating to a pending criminal case that is not part of the public record. The judge is to refra in from comment ing publicly on a pending case, or making other statements that might interfere with a party's right to a fair trial. Other major provisions of the standards include: • The trial judge, not the jury , should be empowered to determine sentence, except possibly in capital cases. • The trial judge should not be involved with plea discussions before the parties have reached an agreement . and he should not accept a plea o f guilty o r nolo contendere without first inquiring whether there is a plea agreement and having it disclosed on the re cord . • Whether or not the plea is tendered as a resu It of a plea agreement. the tria l judge should not accept a plea of guilty or nolo contendere from a defendant without first determining that the plea is voluntary, and that the defendant understandS the c harge, maximum and minimum possible sentences. and the fact that by pleading guilty o r nolo contendere, he waives certain Constitutional rights . Con tinued on page 15
JANUARY. 1973
EXECUTIVE COMMITTEE NOTES By James M. Moody Secretary·Treasurer
Proposed legislation for consideration by the House of Delegates for approval by the Bar Association continued to be the principal business of the Executive Council at its meetings on October 27. t972 . and December 9. 1972 . Some important bills which were approved by the Council included a no-fault insurance law , a bill providing for bail reform , an act to impose strict liability for defective products in cer· tain circumstances, a bill to make comparative fault a defense in strict liability cases, an act creating a presumption that a motorist is uninsured if he fails to file evidence of insurance within ninety days after an accident and a bill to increase the salaries and retirement benefits of state judges.
gates is ready fo r conside ration by the Arkansas Legislature when it convenes next month .
Bill Wilson reports that all legislation approved by the House of Dele-
Henry Woods appointed a committee consisting o f Phil Anderson , Ed
Lester and John Gill to coordinate with Charles Rixse the partiCipation o f the Bar Association in the grand openin g of the Convention Center in Little Rock set for September, 1973. The official dedication of the new Bar Center which is part of the Convention Center complex is presently scheduled for January. 1974. The Client Security Fund has a balance of $8.454 .04 and an additional $1,545.96 is needed to attain the goal of $10,000 .00. The fund drive for the Bar Foundation is receiving a favorable response and will end on December 15, 1972. All members of the Bar are encouraged to make their pledges by that day. Membership in the Association remains at a record level with 1,677 active and current members . •
• Notwithstanding the acceptance of a plea of guilty. the trial judge should not enter a judgment without assuring himself that there is a factua l basis for the plea. If the plea is not accepted. the judge should state the reasons. • The first time an accused person appears before him . the trial judge shou ld inquire whether the accused is represented by counsel. If unrepresen ted and eligible for aSSigned counsel , the accused should be assigned counsel by the judge. • When two or more defendants who are jointly charged , or whose cases have been consolidated , are represented by the same attorney, the
trial judge should inquire into potential conflicts which may jeopardize the right of each defendant to the fidelity of his counsel. • When feasible , the trial judge should give preference to the trial of criminal cases over c ivil cases, and to the trial of defendants in custody and defendants whose pre-trial liberty is reasonably believed to present unusual risks . • The trial judge should not permit examination or cross-examination of witnesses at the witness stand, but should require counsel to examine from counsel table , lecturn or other designated location , to avoid intimidation and humiliation of witnesses.
• The trial judge should not indicate to the jury his personal opinion regarding the guilt of the defendant or the worthiness of testimony. When necessary for the jurors' understanding of the proceedings, he may instruct them 'o n a principle of law or applicability of evidence to the issues. • The trial judge should not allow counsel , during the clOSing argument to the jury, to : express personal o pinions regarding the truth or falsity of any testimony or evidence, or the guilt or innocence of the defendant; make arguments based on matters outside of the record unless common public knowledge; or inflame the paSSions or prejudice of the jury . •
THE ARKANSAS LAWYER
The Council passed a resolution recommending the rescission of the minimum fee schedule adopted by the Executive Committee of the Bar Association on March 19, 1966. This action was prompted by reports that minimum fee schedules have been recently attacked as being in contravention of antitrust laws. A copy of the resolution was mailed to the Presidents of all local bar associations. A record number of advance registrations have been received for the midwinter meeting in Hot Springs scheduled for January 18 through January 20.
15
Unless men quickly learn to control the rate of change in their personal affairs, as well as in society at large , we are doomed to a massive adaptational breakdown . -Alvin Toffler, Future Shock
IN HIS PRESIDENT'S ADDRESS , given before the Inaugural Meeting of the Arkansas Bar Association 's House of Delegates on June 2, 1972 , Mr. Young recognized Tottler's theory of " future shoc k" - the shattering stress and disori en tation in duced in individuals by subjecting them to too much change in too short a ti me - and discussed its application to the legal profess ion.
****** " An editorial in the Memphis Commercial Appeal on September 24 , 1972, entitled Lawyers Have Never Had It So Good , observed : Today we live In a legal-mi nded society, whose comp lexities invite litigation . Real estate transactions , a rising divorce rate , tax regula tions , business and corporate dealings, high crime rates, auto accident suits - all this is grist for the legal mill.
* ** * * * " But along with this increase in services and business like methods I am asking myself if we are not also in danger o f losing one of the best things about being a lawyer, not only a respected but a friendly , devoted type o f relationship with our clients.
****** "It seems to me that along with this greatly increased pace we may be in danger of losing a client relationship that was inva luab le if we don 't take steps to protect it.
****** Th e jammed situation of the law schools all over the country is another phenomenon which has far reaching implications for the practice of law in the years ahead.
****** " It is human nature to resist change and so metimes it seems to me that lawyers must be most human of all because we ce rtai nly seem to put up the strongest resistance . We are going to have to adjust to it and meet the new public demands o r the public is going to turn in other directions for leadership and service in many areas. The in dividual lawyer is going to h ave to reco gnize his responsibility to not only give lip service to organized bar effo rts bu t to be willing to invest some o f h is time in things that many of the busier, more successful lawyers have ignored. I inc lude in this even those who have been most active in organized bar efforts."
****** At this point, Mr. Young discussed various problem areas, including the field of corrections , the bail bond system, the availability of legal services, prepaid legal service programs , etc .
16
JANAURY, 1973
At no other time has the leadership of the Bar been more concerned about these problems and more determined to do something about them . - Leon Jaworski, 1972
Mr . Young appl i ed Amer i can Bar Assoc i at ion President Leon Jaworski 's statement to the Arkansas Bar Associat ion , poi nti ng up its most act ive and produ ctive year.
****** " Fo rtu nate ly. the organized bar has begun to move towards a responsible an d informed response to these change pressures . The point I am trying to make is that a time when the greatest demands in history are being m ade on the organized bar to adapt the processes of law to modern day needs, the individ ual lawyer needs to reexami ne his own professional attitude and be willing to p ut the necessary time and emphasis - not just on bar wo rk bu t in meeting the new demands and cha llenges in the day by day practice of his profession . Only if he does so, can the efforts of the organized bar have any success in preservi ng the great practice of law as we have known and enjoyed it ."
Paul B. Young Immediate Pa.t President Arkansas Bar Assoetation
All Arkam:an!: ArQ IndQbtQd To Paul Young For His lQadQrship In Civic And lQgal Affairs . .. . . CENTRAL ELECTRIC SUPPLY CO. 3017 Midlan d Park Drive So uth INTERNATIONAL PAPER COMPANY
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The life of the dead is in the memory of the living. -Cicero
We put ourselves to no trouble to have their names kept in remembrance, but unconcernedly permitted them (early leaders of the Bench and Bar) to glide away from us into obligion , no record of their words or deeds remaining . -Albert Pike, 1887
It is hoped that the local Bar Association of each Country may be encouraged by this fragmentary article to make a complete list of the Lawyers and Judges of each and every County of South Arkansas. The Bar owes this to posterity. -Judge Ed F. McFadden, 1972
In his cover stories for the November 1972 and the January 1973 issues of The Arkansas Lawyer, Judge McFadden has pointed the way to keep " their names in remembrance " in the " memory of the living ."
Our concern in this connection is reflected by our joining in this salute to our legal heritage in South Arkansas.
Ouachita County Bar Association Southeast Arkansas Legal Institute Union County Bar Association Texarkana Bar Association Chicot County Bar Association Bradley County Bar Association Clark County Bar Association 18
JANUARY, 1973
Priva te Aircraft Crash Cases Tom H, Dav is A us t in , Tex a s According to the Texas Aeronautics Commission, there are about 15,500
private planes based in Texas. This number has doubled in recent years, and should continue to increase during the coming years . With this number of private planes in Texas, it is not surprising that Texas ranked along with California and Pennsylvania as the states having the highest number of general aviation accidents. The Federal Aviation Agency says that " there are several general aviation accidents nearly every day of the year with an average of more than two deaths every 24 h ours ," This agency further states that at least 80 % of all fatal accidents are caused by pilot negligence . The remainder were caused by mechanical failure and structural defects which for the most part were due to faulty or inadequate maintenance and inspections. It is apparent from these statistics that claims resulting from the death or injury of persons in light plane' crashes will continue to increase and represent a greater percentage of liti路 gated cases . Since most light planes are o wned an d operated by persons in the higher income brackets, they are heavily insured . Likewise, the persons who fly in these planes as passengers are usually of substantial means. Consequently, these suits involve c o nsiderable sums of money . Although the average attorney may not handle more than one such case during his entire practice , the uniqueness and complexity of these cases require that he have some basic knowledge of the subject and the problems involved so he can properly recognize and analyze the opportunity for recovery . Insurance While practically all light planes are covered by liability insurance, this kind of insu rance is n ot regulated by the Texas State Bo ard of Insurance or any other governmental agency . Therefore, there are no " standard form " policies and each company is free to write the policy under such conditions as it sees fit in each particular instance. While competition has created some uniformity, there still remains a wide variety of forms in use. Probably the most serious problem to an attorney representing the beneficiaries of those killed or injured in a THE ARKANSAS LAWYER
light plane crash, as well as the personal attorney for the pilot or his estate , lies in the various exclusions that have been written into some of these policies . Many of these policies have a serious limitation upon liability and present a dangerous trap for the inexperienced attorney in this field .2 Some policies provide disclaimers of liability in the exclusion clauses as follows : This policy does n ot apply ; (h ) to the liability o f any insured who operates or who permits the o peration of the aircraft ; (i) in violati o n of its Federal Aviation Agency Airworthiness Certificate or operational record ; (ii) in violation of any regulation of the Federal Aviation Agency applicable to acrobatic flying , instrument flying , repairs , alterations and inspections, night flying , minimum safe altitudes and student inslruction ... (iii) for any unlawful purpose or for the purpose of crop dusting , spraying , seeding or any form of hunting . This policy does not apply (d) to liability with respect to bodily injury or damage caused by the operati o n of the aircraft with the knowledge o f the named insured ; (1) if used for any unlawful purpo se, or during flight or attempt thereat , in violation of any government regulation on civil aviation ... This policy does not apply ; (a ) ... to any insured who operates or permits the aircraft to be operated, .. . (3) Instrument Flight Rule (s) (IFR) c o nditions unless the pilot possesses a valid Instrument Rating and is proceeding in accordance with Instrument Flight Rules , It is obvious from these exclusionary clauses that some o f the language is so broad as to give the insurance company an opportunity to deny liability in most any crash . Those exclusions relating to violations of governmental regulations require a knowledge of a multitude of specific regulations covering every phase of aviation . It is apparent how easy it would be for the inexperienced to plead or prove himself into such a trap, allowing the insurance carrier to escape, leaving the insured or his estate to pay for the very liability which they thought they were protected
Tom Davis
Editor's Note : Mr. Davis is a nationally-known authority on aviation law . He was a featured speaker at the Arkansas Bar Assoc iation's 1971 Fall Legal Institute, falking on fhe " Plaintiffs Preparation of an Aviation Case." He Is Past President of fhe Texas Trial Lawyers Association ; a member of the ABA 's Aviation Committee ; Past Chairman of the American Trial Lawyers Association's Aviation Law Section; and Fello w, International Academy of Trial Lawyers. He has a Commercial Pilot License , with single, multi-engine and instrument ratings. This article. " Private Aircraft Crash Cases," will be followed in the nex t issue of The Arkansas Lawyer with a related artic le by Mr. Davis on " Sources of Information in Private Aircraft Crash Cases." against. Practically all of the older policies contained similar disclaimers of liability . However, due to the increased competition and the awareness of this problem by insureds, some of the later pOlicies are removing the more objectionable clauses . C ho ic e o f Forum In this type of case there is usually a wider choice of forums than in the average damage suit. Texas residents are killed in airplane crashes occurring outside of Texas and non-residents are killed in airplane crashes occurring in Texas. Besides the question of venue in State Courts under I. Aircraft of less than 12,500 Ibs . maximum gross take-off weight. 2. "Risks and Causes of Loss Covered and Exc luded by Aviation liability Policy," 48 A.l.R .2d 704.
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Art. 1995, the possibility of suit in the Federal Courts should be considered . Any detailed discussion of the advantages or disadvantages between various State and Federal Courts will not be undertaken here, but the broader discovery rules and general verdicts which are available in Federal Courts should not be overlooked . In considering suits in other States , or the filing of suit in Texas where the accident occurred in other states, the statutes and laws of the States involved shou ld be examined in detail. While our Guest Statute, Art. 6701 b, would not apply to airplane crashes,4 some States have guest statutes applyin g specifically to aircraft accidents. Aviation guest statutes which closely follow the form of automobile statutes have been adopted by 15 States (Arkansas, California, Delaware, Illinois , Indiana, Michigan, Nebraska , Nevada, New Mexico, Ohio, Oregon , South Carolina, South Dakota, North Dakota and Utah). Georgia has applied its automobile guest rule to an aviation case s while Virginia held to the contrary.6 Seven States have statutory limitations on damages for wrongful death. with amounts varying between
$20,000.00 and $110,000 .00 Kansas ($35 ,000 .00) ; Massachusetts ($50 ,000 .00) ; Missouri ($50 ,000 .00) ; New Hampshire ($20 ,000 .00 or $60 ,000 .00) ; Virginia ($75 ,000 .00); West Virginia ($110,000.00) ; Wisconsin ($49,000.00) . The statute of limitations in the var路 ious States range from one year in seven States, two years in 32 States , three years in nine States and six years in two States.
The avoidance of the harsh restriction on liability by guest statutes and on damages by wrongful death limitations may be accomplished in several ways. It has been held that the limitation on damages for wrongful death by Massachusetts was repugnant to the public policy of New York and thus unenforceable in a suit brought in New York .7
In other cases 8 the old conflict of laws view that the laws of the state in which the accident occurred would be fo llowed was rejected in favor of a more enlightened view that "gives to the place having the most interest in the problem paramount control over the legal issues arising out of a particular factual context ," thereby allowing " the foru m to apply the policy of
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4. Schoremoyer v. Barnes, 190 F.2d 14 (U .S .C .A ., 5th Cir " t951) ; 98 A .L.R .2d 544 , 5. Sammons v. Webb, 86 Ga.App. 382 , 71 S.E,2d 832 (1952) . 6 . Walthew v. Davis , 201 Va. 557 , 111 S,E .2d 784 (1960) . Other cases supporting the Virginia decision are : Gridley v. Cardenas, 3 Wis,2d 62 3, 89 N.w.2d 286 (1958) ; Hayden v. Boyle, 174 Kans. 140, 254 P.2d 81 3 (1953) . 7. Kilberg v. Northeast Airlines , 9 N.Y,2d 34 , 172 N.E.2d 526 (1961 ), and Pearson v. Northeast Airlines , 309 F,2d 553 (U .S.C .A., 2nd Cir " 1962), cert. denied , 372 U.S. 912 (1963) , 8. Babcock v. Jackson , 12 N.Y.2d 473, 191 N.E.2d 279 (1963) ; Griffith v. United Airlines , Inc., 416 Pa. 3, 203 A .2d 796 (1964) ; Seguros Tepeyac, S .A ., C a mpania Mexicana v . Bostron , 347 F.2d 168 (U .S.C .A ., 5th Cir., 1965) ; Watts v. Pioneer Corn Co., 342 F.2d 617 (U ,S.C ,A . 7th Cir., 1965) ; but see Marmon v. Mustang Aviation , Inc. 430 S.w .2d 182 (Tex ., 1968).
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JANUARY, 1973
been referred to as the "Center of Gravity Text. "9 Non-residents who are involved in airplane crashes occurring in Texas may also escape guest statutes, damage limitations or other statutory limitations in their States by bringing suit in Texas, obtaining jurisdiction under Art. 2031 b. In •• l llgalion Responsibility for the investigation of all airplane accidents in the United States was delegated by the Federal Aviation Act of 1958 to the Civil Aeronautics Board, and now rests with the National Transportati on Safety Board . The NTSB is a distinct and independent administrative agency from the Federal Aviation Agency (FAA). Investigators used by the NTSB are employees of the Department of Transsportation and members of its Bureau of Aviation Safety. They are in charge of the investigation , but may delegate part of the investigation or ask assista nce from an investigator from the FAA. Most non-fatal , non-air carrier accidents involving aircraft of less than 12,500 Ibs. (maximum gross takeoff weight) are investigated by personnel of the FAA under a delegation of authority from the NTSB . These governmental agencies have co mplete cont rol of the investigation of aircraft accidents to the exclusion of all others and are required to make and file a repo rt of the resul ts of their investigation . A co py of these reports can be obtained at a nominal cost by writing the NTSB in Washington , D.C. However, Sec. 701 (e) of the Federal Aviation Act provides : " No part of any repo rt or reports of ... the Civil Aeronautics Board relating to any accident , or the investigation thereof, shall be admitted as evi dence or used in any suit o r action for damages growing out of any matter mentioned in such report or reports." While these reports are not admissible in evidence to prove the cause o f a crash, they nevertheless usually contain considerable information which will materiall y aid an attorney in securing evidence which is admissible in court . As the police report is the usual starting point in an aut omobile accident, so a copy of the NTSB accident report is a must fo r the investigation of an airplane crash . Even though the NTSB report is not admissible in evidence, the facts found by the NTSB investigator at the scene of the crash or in the course of his investigation can, with certain administrative limitations, be obt ained from the investigator by depOSi tion. However, these investigators are prohibited by administrative regulation from appearing as expert witnesses or THE ARKANSAS LAWYER
testifying to opinions or conclusions. Their testimony is limited to matters of fact only. NTSB Regulations Section 435.4 provides in part as follows : " Accordingly, no Board employee or former Board employee shall make public, by testimony in any suit or action arising out of an aircraft accident, information obtained by him in the performance of his official duties, except in accordance with the followin g provisions : (a) Testimony of employees and fOfmer employees . Employees may serve as witnesses for the purpose of testifying to the facts observed by them in the course of accident investigations in those suits o r actions for damages arising out o f aircraft accidents in which an appropriate showing has been made that the facts desired to be adduced are not reasonably available to the party seeking such evidence by any other method , including the use of discovery procedu res against the oppo sing party. Employees and former employees shall testify on ly as to facts actually observed by them in the course of accident investigations and shall respectfully decline to give opinion evidence as expert witnesses ... " (c) Testimony by deposition and written interrogatories . Testim ony of empl oyees will be made available for use in suits or actions for damages arising out of accidents through depositio ns or w ritten interrogatories on ly. Normally, depositions will be taken and interrogatories will be answered at the Board 's office to which the employee is assigned, at a time arranged wit h the employee reasonably fixed so as to avoid substantial interference with the performance of the duties o f the employee concerned. Employees will not be permitted to appear and testi fy in court in suits o r actions for damages arising out of accidents. Employees will be authorized to testify only once in connection with any investigation they have made of an accident . Consequently, when more than on e law suit arises from the accident , it shall be the duty of counsel seeking the Board employee's deposition to ascertain the identity of all parties to the multiple law suits and their counsel and to advise them of the fact that a deposition has been granted so that they may be afforded an o pportunity to participate there in Similar provisions are likewise appli ca ble to the employees of the FAA. Perm ission for the taking o f the deposition of an employee of the NTSB must be o btained in writing from the General Counsel of the Board in Washington , D.C . Permission
to take the depOSition of an employee o f the FAA may be o btained from the Regional Counsel for the FAA under appropriate circumstances. Experience has found the attorneys for the FAA to be cooperative and accommodating, and the Flight Service Station (FSS) and tower perso nnel most helpful within the administrative limitations imposed upon them . Besides the obvious leads, sources of evidence and witnesses revealed by the NTSB accident investig ation report , the following information should be obtained and studied . 1. Type of Aircraft and Equipment The make and model of the particular aircraft involved is much more important than is the make and model of an automobile in an automobile case . II should be remembered that an airplane is operated in a three dimensional sphere and there are considerably more facto rs that can affect its operation than an automobile. Besides the make of the aircraft, there are various models of the same type, each having different characteristics which could be important in the case under consideration . In addition, there is a wide choice of navigational and co mmunication radios , autopilots and other optional equipment that may be installed in an airplane. The particular equipment installed in the airplane under investigation , its limitations and the manner in which it is operated and functions , might well have a material bearing o n the outcome o f the suit. You should secure a copy o f the FAA Approved Airplane Flight Manual for the specific aircraft involved . This should show the limitations, performance data, and the normal and emergency operating procedures of the aircraft ; as well as its weight and balance information and the optional equipment actually installed , both when purchased and at any time thereafter. The Owner's Manual for the particular make and model of aircraft can be o btained from the manufacturer and will contain a multitude of information concerning the airplane, its o perat ion, service and maintenance. In addition , you should o btain the plane 's log bo ok and the engine log which by FAA regulation are requ ired to show all servicing , repairs , maintenance, additions and inspections performed on the aircraft and its engine, certified to by the person who performed such services. If important , you can also obtain from the FAA a history of the ownership of the aircraft. Continued on page 22 9. 30 NACCA Law Journal 35.
21
If possible, you should find and per-
serve the wreckage or parts thereof and have them examined by an expert if warranted by the facts . 2. Pilot's Background The pilot's background should be carefully looked into. His personal log book or a copy thereof should be obtained. It should show in detail a day by day record of h is flight experience. The type of certificate held by the pilot can be obtained from the FAA, as well as copies o f his application on which he has certified as true certain facts concerning his experience and training . The medical history and current medical certificate can also be obtained. Those who had flown previously with the pilot or were familiar with his background and experience can be consulted in determining his experience and qualifications as a pilot. 3 . Federal Aviation Regulations (FAR ) The Federal Aviation Regulations 10 promulgated by the FAA and particularly Part 91 should be carefully studied and reviewed for possible violations. These regulations are lengthy and involved , but if properly studied and evaluated , can be very helpful in establishing neg li gence on the part of the pilot. They have the same effect as law and their violation would consti-
tute negligence per se ,1 1 4. Communications with Pilot The radio communications between a plane and a traffic control facility such as an airport control tower are recorded and retained for a limited period of time. Transcribed copies of these communications can be obtained where such records are still available. Likewise records are kept concerning communications either by radio , telephone or in person with all Flight Service Stations and are also available for a limited time. The FAA personnel operating these facilities are instructed to obtain the plane 's identification number on all communications over the radio and whenever information is requested of them by telephone or in person . This identification number is likewise kept by the U.S. Weather Bureau in connection with all preflight weather briefings or requests for aviation weather. Some of the fixed base operators at various airports have a two-way radio called a " unicom ." Very often pilots of private planes use these radios for obtaining information and relaying messages. 5. Weather Weather is all too often a contributing factor in the c rash o f a private aircraft. The FAA's statistical informat ion
22
on aircraft crashes and fatalities in 1970 indicates that weather was an important factor in approximately 28% of the fatal accidents. Time after time reports of crashes issued by the CAB contain as the probable cause " noninstrument pil ot attempted continued visual flight in adverse weather conditions, resulting in disorientation and loss of control" or " non instrument pilot attempted continued visual flight in adverse weather conditions , resulting in flight below weather-obscured obstructing terrain ." Weather information from many sources is readlly available to a pil ot both before and during a flight. The failure of a pilot to obtain this information would constitute negligence, as would flying into areas of adverse weather after rece iving information either disclosing or forecasting its existence. All U.S. Weather Bureau stations are manned by personnel trained in briefing pilots concerning the weather conditions which they migh t reasonably expect to encounter during their flight . This would include not only the current weather at the various reporting stations throughout the United States, but a forecast of the conditions that are expected to occur at a later time, both enroute and at the intended destination . Also available at weather stations are maps,-charts, sequence reports , radar observations and other information which a pilot should be able to interpret and analyze himself. While a personal visit to the Weather Bureau is preferable, complete and adequate briefing can be obtained by ph o ne. Weather information can also be obtained either in person or by phone from Flight Service Stations whose trained personnel are more than glad to be of assistance to an inquiring pilot. Flight Service Stations have not on ly the data supplied them by the Weather Bureau , but also have pilot reported weather conditions (PI REPS ) as received by any Flight Service Station or traffic control facility in the United States. While en route , weather information can be obtained upon request from any Flight Service Station or by listening to the regular scheduled weather broadcasts made by such stations at 15 minutes and 45 minutes past each hour. Additional weather reports can also be obtained by tuning to a facility which transmits continuous transcribed weather information . The location of thunderstorms and other severe weather as shown by radar can be obtained through Flight Service Stations , Air Traffic Control Centers or other facilities having such
equipmen t or access to the reports of those that do have weather radar capabilities. The information obtained from these sources contains not only the hourly weather at the various report ing stations, but also the actual weather conditions as rep o rted by pil ots in flight and all warnings issued by the Weather Bureau concerning conditions which might be dangerous to the flight of light aircraft. These warnings, AIRMETS , as issued whenever the following conditions are either known to exist, or expected within the next two hours : 1. Moderate icing . 2. Moderate turbulence. 3. Winds of 40 knots or more, within 2,000 feet of the ground. 4. Visibility less than 2 miles or ceilings below 1,000 feet , includ ing the ceiling and visibility near mountain ridges and in mountain passes . These warm ings are broadcast by Flight Service Stations on the voice channel of the FAA Navigational Aides and by Air Route Traffic Control Centers on all frequencies serving sectors which have active traffic. Records concerning the reported weather, forecasts and warnings issued can be obtained from the U.S. Weather Bureau in certified form . Radar reports of thunderstorms can also be obtained from the individual weather stations where such radar units are located . Obviously other pilots flying along the same route o r in the area of the crash and witnesses on the ground can supply valuable information con10. Fo rmerly Civil Air Regulations. 11 . Section 610(a) of the Federal Aviation Act of 1958 states that it shall be unlawful : " (5) For any person to operate aircraft in air commerce in violation of any other rule , regulation , or certificate of the Administrator under this title. " See also : Eastern Airlines v . Union Trust Co. , 212 F.2d 62 (U.S.C.A., D.C ., 1955) ; San 'Dieg o Gas & Electric Co . v. U.S., 173 F.2d 92 (U .S.C .A ., 9th Cir., 1949) ; American Airlines v. Ulen , 186 F.2d 529 (U .S.C .A ., D.C ., 1949); Citrola v . Eastern Air Lines, Inc .. 264 F.2d 815 (U .S.C .A ., 2nd Cir., 1959); Prashker v. Beech Aircraft Corp., 258 F.2d 602 (U .S .C .A ., 3rd Cir. , 1958) ; Neiswonger v. Goodyear Tire & Rubber Co., 35 F.2d 761 (D.C., N.D. Ohio, E.D., 1929); Rinehart v . Woodford Flying Service, 122 W.va. 392, 9 S.E.2d 521 ; " The Ro le of Adm inistrative Safety Measures in Negligence Actions," 28 Tex . Law Review 143 (1949) . JANUARY, 1973
cerning the weather as it existed at the ti me of the crash . Since most pilots of private airplanes are not rated or qualified to fly in weather conditions requiring instrument flight, it is important to ascertain not only the weather conditions that existed at the time of the crash, but also the weather information that was available to the pilot at the time he took off and during the flight. This in· format ion may reveal that before the pilot took off, or well prior to the crash , he knew or should have known that he would encounter weather which would make it extremely difficult , if not impossible, to continue the fl i ght without violating the FAA regulations concerning VFR (Visual Flight Rules) flights , or weather requiring that the flight be made by reference to instruments.
Res Ipsa Loquitur As often occurs in cases of this kind, all occupants o f the plane are killed. This makes the proof of negli· gence more difficult , but by no means impossible. While it is true that air· planes do not normally crash in the absence of neg ligence, complete reliance upon the doctrine of res ipsa loquitur can be subtly alluring and deceiving to the inexperienced. 12 According to a study made some years ago of the use of res ispa loquitur, it was discove red that out of 24 cases submitted to the jury on res ipsa loquitur alone, 22 jury verdicts were returned in favor of the defendant . It should also be pointed out that these were cases against airlines who owe to their passengers the highest degree of care, and where there could be no question about the exclusive
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control of the aircraft resting with the defendant and its employees. While Texas 13 and other jurisdictions 14 are firmly committed to the proposition that res ipsa loquitur is applicable in airplane crash cases, most of these were airline cases , or cases in which there was no question concerning the identity of the pilot or the person responsible for the crash . Dual Controls With the possible exception o f some Beechcraft models, practically all light planes have dual controls. While Beechcrafts have only one control wheel, it can be adjusted for flight from either the left or right front seat. In either case where all occupants are killed , the dual control capabilities of private aircraft create a problem in establishing who was flying the plane at the time o f the crash . This problem can become even more involved when there are two or more licensed pilots among the plane's occupants. Not only is proof of who was flying the plane at the time it crashed required to establish the control necessary for res ipsa loquitur, but it is equally important in cases relying on specific acts of negligence. Unless some proof is presented concerning who was piloting the plane, it will be difficu It in most instances to make out a case against the particular defendant named in the lawsuit. As in other cases this can be established by circumstantial evidence, the plaintiff being only required to prove who was probably flying the airplane at the time . Circumstances tending to prove who was piloting the plane are : (1) the alleged pi lot is also the owner, (2) the possession o f a license by the alleged pit ot with no license being possessed by the other occupants, (3) the flying experience of the alleged pilot as contrasted with the experience of the oth er occupants, (4) the Continued on page 26 12 . For an example for what has occurred by reliance upon res ipsa loquitur alone in a light airplane crash , see Morrison v. Le Tourneau , 138 F.2d 339 (U .S.C.A ., 5th Cir., 1943). 13. English v. Miller, 43 SW.2d 642 (Amarill o Civ. App., refused , 1931 ). 14 . Lobel v. American Airlines , 192 F.2d 217 (U.S.C .A ., 2nd Cir. , 1951); Northwest Airlines v. Rowe , 226 F.2d 365 (U .S.C .A .. 8th Cir. , 1955) ; Capital Airlines Inc . v . Barger, 341 SW .2d 579 (Tenn . App ., 1960) ; U.S. v . Johnson , 288 F.2d 40 (U.S.C .A ., 5th Cir., 1961); " Res Ipsa Loquitur in Aviation Accidents ," 6 A .L.R .2d 528 ; 28 NACCA Law Journal 437 , 446 ; 10 NCCA 3rd 198.
23
ASHLEY THE COUNTY . .
.
THE COURTHOUSE . ..
" During that long transItion period when Arkansas was struggling and gradually rising up ou r. of Ihe palilfful 'nf{uences which shadowed her early history and wrote mailY of itsrpageSrin blood, th.~se two men (Co lonel Chester Ashley a1d COlO e l William E. Woodrulf~ with many other noble coadjutors, struggled ith parlan firmness fa advani'!e me highest interests of the people. In that great labor they became hl storc characters, and their fame is the State's eritage. Will the ge nerouS and noble Arkansas of tod ay, who owes so much路 to these , her sons, build a monument to hem wortlJy of th eir aCllieve'irlents for her civilization and fame? Their names ought to be written on the dome of her Partheon ." John Hallum, History of Arkansas, 1887
Colonel Chester Ashley 1791-1848 Lawyer- U.S. Senator
It is particularly fi tt ing Ihat Ashley County, upon its c reati n on Nove mbe r 30 , 1948, was named after Colonel Chester Ashley. HaWburg beca me the coun ty seat in the following year. The Ashley COUl)tx area trac es its rec orded history back to 1541 when Hernando de S.oJo , the Spani sh explorer, and his party spent the winter there ; to the first permane nt non-Ind ian settlemen t by the Frenc at Lo ngview on t he~S~~~li~n;~e_ _...._ River; to 1791 with the accoun ts o f Father Pierre Franc isco e Charlevoix on the Quapaw Indians ; to 1818 an 1824 wi th the t rea ties with the Quapaws which opened up the area far pibneer se tt lemen t.
Ashley County 's population has grown to some 25,000 - the County is moving ahead with its varied ec onomy of forrestry, industry and agri c ulture , rankin g fo urth in the State in average weekly earnings. The Ashley County Courthouse in Hamburg , Arkansas ~ as a unique hisotry 0 its own . The o riginal' courthouse , built in 1854, burned in 1869. The second courthouse burnect1 n 921 . lihe third cou rthou se building-was comp leted in 1924, out lived its usefulness , and was torn down in 1969. The site is now a city park in the center of the business district. The fourth and present ultra-modern structure , with connecting wing hou sing the welfare, health and education departments, was completed in 1969. William S. Arno ld, then President of the Arkansas Bar Assoc iation , was appointed by the Ashley Co un ty Judge in 1968 as Chairman of the Special Committee to plan the new courthouse . He was guided by the fact that the basic physical purpose of the courtroom is to g ive the judge , the opposing lawyers, the jury and witness on the stand an unobstructed view of each other and the opportuni ty to hear normal speech c learly. 24
u
JAN UA RY , 1973
ARNOLD THE COURTROOMS IN THE ROUND
":J:her is marct ly a cOWro aoywMr~ wne,e tffis is possil5l . Either the judge sees only tM back of the neck of the witness, or one g ou of counsel is off in lefHield r or Hie ;j!lry box is so arranged that it's ve\)( aif· ficult for juro~s to see all other trial participants and exhibit boards." Judge Georg,e 1:1 Boldt SI< ' ••
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The new court ouse desiiln incorporates two circular courtr ms , "Courtrooms in t e Ro nd " , an all related facilities for judges, wit· nesses, prlsoners, etc ., d was designed blfA nshaw and Taylo,4- orth LitJle Rock Archi ects , , e new design, el s to eradicate the can· ception of a cou room as a heatre a perform nce being conducte 0 e e efit of the spe.cJat , rs." -W'm . S. nold
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The Courthouse has served t e . itize ~ ry well .L arrd is a livin of Asfiley Co nty s conti ued (I,e velopment.
William S. Arnold Chairman, Building Committee Ashley County Courthouse
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Conrinued from page 23
mechanical arrangement of the controls in the plane in question may prohibit take-ofts or landings by persons in the right front seat, (5) the seating arrangements of the occupants, the seat on the left being customarily occupied by the pilot operating the plane, (6) voice communications received from the pilot requesting instructions from the tower or other FAA facility , (7) position of the bodies after the crash, (8) the condition of the control wheels after the crash , (9) agreements with the owner not to permit others to pilot the p lane or not to give flight instructions, (1) if a flight plan was filed , who was designated as pilot. These are only some of the circumstances that may be used to establish by a preponderance of the evidence who was flying the airplane at the time of the crash . Once it has been established by a jury finding who was in control of the aircraft, issues on res ipsa loquitur and specific acts of negligence can then be submitted. In the past sufficient proof to allow a case to go to the jury in the above situation has been a difficult stumbling block . Some courts have required a complete negation of the possibility that the plaintiff 's decedent was operating the plane at the time of the crash. 1S Fortunately the trend of the recent cases is toward a more realistic appraisal of the problem .16 In the early days of aviation , the mysteries and uncertainties of flight coupled with unfamiliarity of the subject by the Courts might have justified a cautious approach to the problem . However, today with the vast technological changes and improvements in airplanes and safety in flight and with the mass production of light airplanes which are being used by an ever-increasing percentage of our population , no justification exists for requiring a plaintiff to establish wh o was flying the airplane " beyond any reasonable doubt. " This element of an airplane crash case should be no different nor should it require a greater degree of proof than any other element in the case of in any other kind of case. The plaintiff should only be required to prove this element by a preponderance of the evidence. There is no reason why circumstantial evi dence and legal presumptions as used in other types of cases 1 7 should not be sufficient to establish who was pro bably flying an airplane at the time it crashed . O ther Causes of Acti on Besides cases against the pilot for negligence, a cause of action may exist against the owner for improper 26
or inadequate maintenance, or under the theory of negligent entrustment. 18 A cause of action may also exist against the company or individual responsible for the maintenance of the aircraft or who serviced the aircraft prior to flight. 19 The facts may also warrant a suit against the manufacturer of the aircraft or its instru ments and navigational or communication equipment for negligent design or breach of warranty .20 Conclusion In order to handle an aircraft crash case , it is imperative that you become familiar with the operation 01 an airplane and understand the reasons for the procedures and regulations that exist. It would be much easier to try an automobile case without having ever driven or ridden in one than to attempt to try an airplane case under a similar handicap. While pilot training and experience with aircraft will be helpful in handling such a case , It is by no means enough . You should be Ihoroughly familiar with the latest FAA regulations and operating procedures. You should be thoroughly familiar with the different types of information available from Flight Service Stations, Air Traffic Control Centers, Approach Controls, Control Towers , U.S. Weather Bureau , and how such information can be obtained . The terminology and procedures involved can be very confusing to one who is not currently familiar with the latest techniques and
practices. A lot has changprj since some learned to fly during W< Id War II. Unless you are thoroughly acquainted with aviation parlance , regulations , procedures and problems, you and your clients will benefit by seeking the assistance of someone who is weH versed in modern aviation and who is actively engaged in the field on a regular basis .â&#x20AC;˘
1S. The unrealistic "beyond any doubt " attitude is best exemplified by Hayden v . Boyle, 174 Kans. 140, 254 P.2d 813 (1953); 36 A .L.R.2d 1290. 16. Underwriters at lIoyds, London v. Cherokee Lab, Inc ., 288 F.2d 95 (U.S.C .A ., 10th Cir., 1961); Lange v. Ryan-Nelson Flight Service, Inc ., 259 Minn . 460 , 108 NW . 2d 428 (1961) ; 36 A .L.R.2d 1290; 28 NACCA Law Journal 406. 17 . " Proof in Absence of Direct Testimony by Survivors or Eye Witnesses, 01 Who, Among Occupants of Motor Vehicle, was Driving it at Time of Accident, " 32 A .L.R .2d 988 . 18. Central Flying Service v. Crigger, 215 Ark. 400, 221 S.W.2d 45 (1949) ; 5 NCCA 3rd 13. 19. Upper Valley Aviation Inc . v. Fryer, 392 SW .2d 737 (Corpus Civ . App. , 1965). 20 . Boeing Airplane Co . v. Brown , 291 F.2d 310 (U .S.C .A ., 9th Cir., 1961); 78 A.L.R .2d 460 ; 28 NACCA Law Journal 460 ; 30 NACCA Law Journal 362 ; 12 NCCA 3rd 334 .
BEST WISHES For A Prosperous And Happy Ne w Year The Arkansas Law yer JANUARY, 1973
"'West's Ultra fiche Edition" Avai lability in an Ultra Fiche edition of the entire 2,300-volume National Reporter System, First Series, has been announced by West Publishing Company, st. Paul, Minnesota. The new microform editions, the product of one of the most extensive programs ever undertaken in legal micropublishing, involves the use of Ultra Fiche, which permits the reproduction of an entire reporter volume of up to 1,450 pages on a single four by six inch ca rd. According to West, the volumes of the First Series reporters in book form occupy more than 300 feet of shelf space, or the length of a football field . In Ultra Fiche format and in standard four by six inch files, the same volumes occupy only a few feet. Since each card will contain the contents of an entire reporter volume , ease of use with standard citations will be facilitated. The National Reporter System was originated almost a century ago by West Publishing Company. It was designed to make readily accessible to the legal profession all of the reported opinions of the appellate courts in the nation. The First Series of reporter volumes was succeeded by a Second Series of reporter volumes beginning in 1924. "The need to meet the growing demand for space in law offices and libraries was a key factor in West 's decision to offer the entire National Reporter System , First Series, in Ultra Fiche form ," said Dwight Opperman, West Publishing Company President. "Modern technology and microform techniques make it possible for us to provide lawyers and libraries who have the First Series in book form access to the same volumes in spacesaving form . Those lawyers who do not now have the First Series will now be able to acquire it for their libraries with a remarkable savings in space. Also , many lawyers and libraries will find it useful to acquire extra needed sets of the First Series for firm or library USB . Ultra Fiche provides an ideal way to meet this demand." First Series reporters to be made available in Ultra Fiche include South Western Reporter (covering reported appell ate court decisions in Texas , Missouri, A rkansas, Kentucky and Tennessee, 1886-1928). As part of its new program, West is offering to its c ustomers a portable reader, a combination reader/printer-
THE ARKANSAS LAWYER
tion and also permits hard copy reproduction on standard size paper of the selected pages in any quantity desired . No special skills or training are required for operation of the unit. This machine has been designed so that it can also be used as a standard copying machine.
copier and storage cabinets for the Fiche. The portable desk-top readers provide a bright, high quality screen image of the Ultra Fiche material magnified 87 times to a somewhat larger than full page size. The unit is designed for easy control and fast retrieval of the desired pages. The reader/printer-copier serves as a vIewer for page-size screen presenta-
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Successful lawyers know the value of time, and the right set of books. They rel y on UN IT E D ST ATES CODE ANNOTA T ED to s upp lement the ir state statutes so th ey may reac1 il y answer t heir cli ent's Question- whet her the questio n ari ses from s tate or fe deral stat utes.
WEST PUBLISHING COMPANY Archi e C. McLare n, Jr. 74 9 W. Snowden Ci r cle Memphi s, Tenn. 38104 Phon e : 901/ 276- 0172 27
The public has a right to expect lawyers to lead the forces for good citizenship. participate in and encourage the seft/ement of community problems. promote the advancement of our educational system. endorse harmonious relationships between all people. cooperate with the news media in matters of public interest and support the churches in their important role in our lives . It is the public that we are serving and it is the public that we must satisfy with our services. - Louis L. Ramsay. Jr .• 1964 The President's Address Arkansas Bar Association
Louis L. Ramsay. Jr.
WE APPRECIATE HIM.
A.
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Weyerhaeuser COInpany
'Wallace C.
H o t Springs. A['kBnsBs
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FOR HIMSELF .
CHARLES MEYER, SR . and CHARLES MEYER, JR.
&"~~b>~
@ffi~ W!1..0..ID~ ~~ (!';@li)lj~ Clh~:l: ~J..:;;J .7Y.£J.E3:J JANUARY. 1973
Success in any dem ocratic undertaking must proc eed from the individual. - Brandeis, 1922
How well Louis L. Ramsay, Jr. lives up to his own Code is refle c ted in his rec ord of service to his Co un try, Community, Church and Pro fess io n . . .
• Board Member, First Unit ed Method ist Chu rch
• USA F Pilot, World War II
Fellow Member, Board of Trustees, University of
American Col lege of T rial Lawyers
Arkansas
American College of Probate Counsel American Bar Fou ndation
• Life Member, U of A Alumni Association Recipient, "Outstanding Community Leadership Award" - 1970
Chairman, Arkansas Advisory Committee on Publ ic Education
•
Recipient, "Outstanding Lawyer Award" -
1969 Past President Member, ABA House of Delegates
Arkansas Bar Association Arkansas Bar Foundation University of Arkansas Alumni Association University of Arkansas Endowment Trust Fund
Director, various businesses • Partner, Coleman, Gantt, Ramsay, & Cox Law Firm
Pine Bluff Rotary Club President, Simmons First National Bank
Pine Bluff Chamber of Commerce
I~
• • •
AND FOR HIS MANY SUCCESSES.
katveD
Pine Bluff
HATCHER CONSTRUCTION COMPANY Pine Bluff, Arkansas
Litt le Rock
/
SIMMONS FIRST NATIONAL BANK Pine Bluff THE ARKANSAS LAWYER
• •
Arkansas
Pine Bluff
doto processors, i nc.
Arkansas
29
A
History Of law In South Arkansas (Part"
':
from 1874 to the Prese nt) by Judge Ed F. M c Faddin
If we would guide by the light of reason , we must let our minds be bold. - Brandeis
Part one of this article mentioned very briefly the period of reconstruction! following the War between the States . The year 1874 was a monumental one in Arkansas history, as well as in the Law of South Arkansas : for in that year the Confederate Veterans finally regained control of the State Government , overrode the Carpetbag Constitution of 1868, and framed the Constitution of 1874, under which the State has gone forward . The strength of that constitution has withstood the attempts to supersede it by the t9t7 and 1970 proposed constitutions. South Arkansas (as previously delineated) furnished great leaders in the 1874 Constitutional Convention. Hempstead County sent two able lawyers : (1) Gen . G . D. Royston, who had been a member of the 1836 convention and became president of the 1874 convention ; and (2) John R. Eakin, the owner and editor of the Washington Telegraph , and who was later State Chancellor and Justice of the Supreme Court. Ouachita County sent Col. Henry G . Bunn , a Confederate Veteran , who later became Chief Justice of the Arkansas Supreme Court. Nevada County sent R. K. Garland, brother of Augustus H. Garland , who was later Governor, U. S. Senator and Attorney General of the United States. Phillips County sent John H. Horner and R. P. Polk , each from a distinguished family . Union County sent B. H. Kinsworthy , the father of E. B . Kinsworthy , who became attorney general of Arkansas . Ashley County sent one of its leading lawyers, M . L. Hawkins, a distinguished Confederate Veteran . Those from other South Arkansas counties were equally fine . They were all "time tried and true ." They were as gold refined in the crucible of war and reconstruction . In 1917, there was an attempt to supersede the 1874 constitution ; and that attempt was unsuccessful. Then in 1970, there was another such attempt , which was also unsuccessful. So it is proper to consider South Arkansas lawyers from 1874 to date. After 1874, the South Arkansas lawyers and judges became a galaxy of great legal talent. To name all from 1874 to the present would be a work of supererogation, and would extend this article beyond its allotted space. Since 1874, there have grown up in South Arkansas generations of lawyers in the same family : that is, a lawyer
30
Editor's Comment : The Arkansas Lawyer is deeply indebted to Judge Ed. F. McFaddin. In the May 7972 Issue, his " History of the Arkansas Supreme Court" appeared as the cover story. As Chairman of the Memorials Committee of the Arkansas Bar Association , Judge McFaddin has been preparing the necrologies for the In Memoriam. His cover stories on the " History of Law In South Arkansas" for this issue and the November 1972 issue of The Arkansas Lawyer have opened the door to Arkansas' legal heritage in South Arkansas - his concluding sentence is worth repeating here, " Surely the present day lawyers would do a fine service to the future generations to preserve the memories of the lives and labors of those fine la wyers who have gone before." Judge McFaddin was born in Hempstead County, Arkansas in 1894 . Following graduation from Hope High School, he took his pre-law studies at Hendrix College and Simmons College (now Hardin-Simmons University ), receiving his A.B. in 1913. He obtained his LL.B . from the University of Texas In 1916, and was admitted to the Arkansas Bar the same year. He was a LL.M. graduate of Columbia University in 7977. tn 1947, Hardin-Simmons awarded him an honorary LL.D. He served as an U.S. Army Captain (Infantry), 1917-1919, with six months overseas duty. He married in 1920 to Tillie McCammon of Fort Worth , whom he met attending the University of Texas. Judge McFaddin practiced law in Hope, Arkansas, for the next 23 years . Then for the next 24 years, he served as Justice of the Arkansas Supreme Court, retiring in 1966 after serving the sixth longest tenure in the Court's history. The McFaddlns have three children and nine grandchildren - a family that is a source of g reat happiness to the Judge. Perhaps the most remarkable facet o( Judge McFaddin is his kno w ledge o( the Hoty Bible. His personal library has many and varied editions o( the Hoty Bibte. The Arkansas Lawyer feels that Justice Brandeis ' challenge is well met by Judge Ed. F. McFaddin .
fath~r, a. lawyer s?n following in the professio nal footsteps of hiS Sire, and, In some instances, grandsons who were also law~ers . This is such an interesting fact, that there will now be listed those " Generations of Lawyers ." They will be listed by counties , and in the chronological order in which the counties were created ; and after the name of each person there will be the year of birth, and the year of admission to the bar.
JANUARY, 1973
路' RK COUNTY (created in 1818) has "Generations of Lawyers." . (A) Cotonet Henry William McMillan was born In North Caroli.18 in 1830; moved to Arkansas, and in 1859 was admitted to the bar at Camden. He served in the Confederate Army as Lieutenant Colonel; and after the w~r ~e moved to Arkadelphia, where he practiced law all of his life . Three o f his sons became lawyers: 1. Dougald, (69-91) who had a son , Dougald, Jr. (07-28) who was also a lawyer In Arkadelphia.
2. John Henry, (1871-93) who had a son, Boswell (06-29) who was also a lawyer in Arkadelphia. 3 David William (1877-1903) who had a son, Henry Wiliiam (Bill ) McMillan (09-34) who is now a lawyer in Arkadelphia. . 4. One of Colonel McMillan 's daughters marned an Arkadelphia lawyer, John H. Crawford (1853-75) whose son was Dwight H. Crawford (1890-1915) also a lawyer in Arkadelphia. . So Colonel McMillan had three sons, a son-m-Iaw and four grandsons - all of whom were Clark county lawyers . Thus for over 100 years the McMilians have had four "Generations of Lawyers " in Clark County. Clark County also had several other families who had lawyers of two generations. (B) There was Jo hn H. Lookadoo (96-28) who was president of the Arkansas Bar Association in 50-51 ; and whose son J. Hugh Lookadoo (25-51 ) was a state senator, and is still in the active practice. (C) There was R. W. Hu ie II (78-02) whose son C. R. Huie (08-31) was ci rcui t judge, and who is now executive secretary of the Judicial Department of Arkansas. (D) There was J . E. Calloway (68-96) whose son Joseph Calloway (98-21) was also a lawyer. HEMPSTEAD COUNTY (created in 1819) has several "Generations of Lawyers ." (A) General G. D. Royston (1809-1831) had a son . C . E. Royston , who was also a lawyer. (B) Senato r James K. Jones (1839-1873) was U. S. Congressman and for 18 years U. S. Senator. His son , James K. Jo nes, II (1867-1899) was a lawyer in Washington , D.C. and Senator Jones' grandson , Steve Carrigan (84-06) was an outstanding law yer in S.W . Arkansas . (C) A. B. Williams was a lawyer as was his son, R. B. Williams . (D) U. A. Gentry (88-12) is a lawyer as is also his son Leffel Gentry (07-30) . (E) Chancellor Royce Weisenberger's (08-36) son , Royce Weisenberger II (40 -64 ) is also a lawyer. (F) Judge John R. Eakin 's son , W. S. Eakin was a lawyer. In the Graves family , Hempstead County has three "Generations of Lawyers. " (G) O. A. Graves (76-02) was a member 01 the Constitutional Convention o f 1917. His son , Albert Graves (09-33) is a lawyer as also are Albert Graves II (36-61) and John Robert Graves (41-66). PHtLLIPS COUNTY (created in 1820) has " Generations o f Lawyers." (A) W. G. Dinning (75-00) and W. G. Dinning , Jr. (14-41). (B) John I. Moore (58-80) and John I. Moore , Jr. (96-20). (C) George K. Cracraft (91-14) and George K. Cracraft. Jr. (22-48). (D) J. G. Burke (91-13) and Richard K. Burke (22-47). (E) John L. Anderson (15-38) and Douglas Anderson (4266) . CHICOT COUNTY (created in 1823) has " Generations of Lawyers ." (A) Ohmer C . Burnside (89-12) and Ohmer C. Burnside II (19-47). (B) G. B. Colvin II (10-46) is Circuit Judge. His son is
THE ARKANSAS LAWYER
Greene B . Colvin III (40-66) . (C) W . W. Grubbs (83-13) and W. K. Grubbs (20-49) . (D) John F. Gibson (16-33) and John F. Gibson II (40-66) and Charles S. Gibson (43-70) . LAFAYETTE COUNTY (created in 1827) has "Generations of Lawyers ." (A) R. L. Searcy (69-92) and R. L. Searcy, Jr. (97-21) . (B) G. Pat Robinson (96-22) and Miss Patsy Robinson (2951 ). SEVIER COUNTY (created in 1827) has "Generati ons of Lawyers ." (A) W . H. Collins ( -97). His son was Abe Collins (85-07) , president of Arkansas Bar Association in 1938-39; and Abe Co llins, Jr. (24 -57 ) was also a lawyer. (B) J . S. Lake (6 1-87) had two lawyer sons : E. C. (Dub) Lake (93-19) and Winfred Lake (00-25). The Steel family is claimed by several counties (Sevier, Little River and Howard) but will be listed in Howard County . UNION COUNTY (created in 1829) has " Generations of Lawyers ." (A) Jeff Davis II (96-21) and Jeff Davis III (30-54) . (B) Neil C . Marsh (72-94) and Neil C . Marsh II (01-28). (C) J . V . Spencer (87-28) has a son and grandson : J. V. Spencer II (20-46 and J . V . Spencer III (44-68) . (D) Henry S. Yocum (85-13) and Henry S. Yocum II (2147) . (E) John M . Shackleford (96-21). John M . Shackleford II (21-43) and Dennis L. Shackleford (30-58). (F) The Mahony family has three generations. Joe K . Mahony (84-09). Eamon A . Mahony (13-36). Joseph K . Mahonyll (39-66) . Michael F. Mahony (44-68). JEFFERSON COUNTY (created in 1829) has "Generations of Lawyers." (A) F. G. Bridges (66-86) and F. G. Bridges II (06-29). (B) E. W. Brockman (79-08 ) and E. W. Brockman II (2147). (C) Alex H. Rowell (80-03) and Hendrix Rowell (09-31) . (D) T. M . Hoo ker (68-96). T. M . Hooker II (02-29) . John E. Hooker (05-28). (E) Jay W. Dickey (06-34) . Jay W. Dickey II (39-63) . (F) Carleton Harris (09-32), Chief Justice of Arkansas Supreme Court , and Eugene S. Harris (3 5-62) . (G) Irving Reinberger (60-88) . M . L. Reinberger (87-08) . Chas. R. Reinberger (97 -20 ). (H) George H. Holmes (90-13). George N. Holmes (23-50). Joe Holmes (26-52). HOT SPRINGS COUNTY (created in 1839) has "Generations of Lawyers ." (A) D. D. Glover (60-09) was Congressman from Arkansas, and had fou r lawyer sons : 1. W. H. Glover (03 -27) whose son , Dorsey D. Glover (3561) , is also a lawyer. 2. Julian Glover (09-36). 3. Quinn Glover (98-25). 4. Lawson Glover (12-38) whose son is David Mac Gl over (44-70). (B) Judge H. B . Means (75-08) and H. B. Means II (20-41 ) now Circuit Judge. PIKE COUNTY (created in 1838) has "Generations of Lawyers ." (A) O. A . Featherson (72-01) and Allred Featherston (0022). (B) J . C . Pinnix (63-89) and R. S. Pinnix (92-16) . DESHA COUNTY (created in 1838) has " Generations of Lawyers ." (A) James M . Smith (92-19). James N. Smith (25-50). Robert M . Smith (23-48). (B) E. E. Hopson (83-08) . E. E. Hopson II (15-38) . OUACHITA COUNTY (created in 1842) has "Generations Continued on page 33
31
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32
JANUA RY, 1973
Continued from page 31
â&#x20AC;˘
of Lawyers." (A) T. J. Gaughan (64-87) was president of the Arkansas Bar Associat ion in 1926-27. His son, J . Emmet Gaughan (9016) is a lawyer, and so is Thomas Gaughan (11-34) . (B) J. Bruce Streett (98-21) . Julian D. Streett (37-61). DALLAS COUNTY (created in 1845) has "Generations of Lawyers." (A) T . D. Wynne (76'{)3) was president of the Arkansas Bar Association in 1929-30. His three sons are lawyers : T. D. Wynne II (15-53), R. Doug Wynne (20-48) and Frank Wynne (24-49). DREW COUNTY (created in 1846) has " Generations of Lawyers ." (A) J . G. Williamson (57-82), had two sons who are lawyers and one grandson who is a lawyer. I. Lamar Williamson (87.{)8) was president of Arkansas Bar Association in 1945-46. 2. Adrian Williamson (92-15) was chairman of the original Probate Code Committee. 3. The grandson of J. G . Williamson is J. Gaston Williamson (14-35). (B) James A . Ross (11-23) and his son James A . Ross II (38-62). Ashley County (created in 1848) has " Generations of Lawyers." (A) Ovid T. Switzer (03-29) . W. P. Switzer (16-47) . Bruce Switzer (45-68) . COLUMBtA COUNTY (created in 1862) has "Generations of Lawyers." (A) Wade H. Kitchens (79-00) was a member of U. S. Congress . His son was W. Hampton Kitchens II (06-31). (B) Charles W. McKay (72-97) . David McKay (02-24). (C) Melvin Chambers (05-35) . Rodney T. Chambers (3661 ). (D) A . A . Thomason (97-30). W. Byron Thomason (41-70). LtTTLE RtVER COUNTY (created in 1867) has "Generations of Lawyers." (A) C . E. Johnson (88-11) was Chief Justice of Arkansas Supreme Courl. His son is Cecil E. Johnson II (16-41) . GRANT COUNTY (created in 1869) has a splendid " Generalion of Lawyers." (A) Isaac McClellan (71'{)7) was the father of our distinguished U. S. Senator Jo hn L. McClellan (96-13) . Other lawyer members of the McClellan family are : W. H. McClellan (04-31) and W oo drow McClellan (12-33). NEVADA COUNTY (created in 1871) has many "Generations of Lawyers." (A) Han. T. C. McRae (51-73) was a member of Congress, president of Arkansas Bar Assoc iation 1917-18; and then added the capstone to his career by being Governor of Arkansas from 1921 to 1925. His son, Duncan L. McRae (85-07) was a lawyer, as also is the grandson Duncan l. McRae II (12-34) . (B) W. V. Tompkins (61-83) was president of Arkansas Bar Association 1910-11 and his son , Charles Tompkins (89-14) is a lawyer. (C) Henry B. McKenzie (77'{)0) was a lawyer, and his son and grandson are lawye rs being : Horace McKenzie (05-33) and James H. McKenzie (41-66). (D) J . o. A . Bush (55-96) was a lawyer and each of his three sons was a lawyer, being Dexter Bush (93-15); Jim Bush (00-24); Judson Bush (10-35). (E) W. F. Denman (87 -22) was a lawyer, as is his son W. F. Denman II (23-49). (F) H. E. Rouse (88-07) was a lawyer, as is his son R. Dudley Rouse (15-40). ) was a lawyer, and author of (G) Col. c . C. Hamby ( "Appeal and Error" a bo ok on Arkansas trial practice. His son, Randolph P. Hamby (66-09) was a lawyer and was mayTHE ARKANSAS LAWYER
or of Prescott for many, many years . HOWARD COUNTY (created in 1873) has "Generations of Lawyers." (A) W . D. Lee (61-84) was a lawyer as is his son Robert D. Lee (91-16). (B) Judge David Bennett Sain was born in 1855, and admitted to lhe Bar in 1877. He had two sons who were lawyers being J . Guthrie Sain (82 -04) and D. Ben Sain (94-25). (C) W. C . Rodgers (63-86) was a lawyer and the author of a volume on Domestic Relat ions. His son , Sam (94-19) was also a lawyer. (D) Then comes the Steel family c laimed by Sevier, Little River and Howard Counties, since some member of the family has lived in each of the three counties. This family gets the prize for "Generations of Lawyers," since there are five generations of Arkansas lawyers in th is family. The original ancestor was Th omas George Tucker Steel. He was born in 1816 in Virginia, move d to Arkansas , was admitted to the bar, and was Circuit Judge of the 8th Circuit in 1873 and 74 ; and died in Locksburg , Arkansas in 1889. His son was Judge J. S. Steel (50-75) wh o was also Circuit Judge , and had three sons who were lawyers, being : I. Robert Steel (1877-00) . 2. A . Percy Steel (80-03) who succeeded his father as Circuit Judge, and then later became Chancellor. 3. George R. Steel (90-12) who had three lawyer sons, being : (a) George E. (Jetty) Steel (16-40) . (b) Judge Robert (Bobby) Steel (20-47) who is Circuit Judge as was his grandfather. (c) Don Steel (28-51) . Then George E. (Jetty) Steel (16-40) has a son who is a lawyer, being George E. Steel II (45-70). So there are five generations of lawyers in this one South Arkansas family . MtLLER COUNTY merits special consideration. It was originally created in 1820 but abolished in 1836 and then recreated in 1874. It has many "Generations of Lawyers." (A) James D. Shaver (61-84) was presiden t of Arkansas Bar Associatio n in 1912-13. His son , Ben Shaver (88-15) was a lawyer. (B) Judge Jacob M . Carter (65-90) was Circuit Judge; and his son Ben E. Carter (94-21 ) was a Justice of the Arkansas Supreme Court. (C) Paul Jones (55-77) was president of the Arkansas Bar Association in 1933-34; and his son , Paul Jones II (84-12) was a lawyer and the author of Jones on Arkansas Titles . (D) Mr. Henry Moore, Sr. was a lawyer, as also was his son , Henry Moore, Jr. (74-03) who was president of Arkansas Bar Association in 1941-42. (E) Willis B. Smith (03-26) was president of Arkansas Bar Association in 1959-60 . His son, Willis B. Smith , Jr. (36-61) is also a lawyer. (F) Boyd Tackett (11-35) is a lawyer and was a member of U. S. Congress. His so n, Boyd Tackett, Jr. (40-70) is also a lawyer. (G) Ned A . Stewart (03-26) was a lawyer, as is his son , Ned Stewart, Jr. (39-64) (H) R. W. Rodgers (67-94) was a lawyer as was his so n, R. W. Rogers , Jr. (93-15). (I) W. F. Kirby (67-85) was attorney general of Arkansas , Justice of Arkansas Supreme Court and U. S. Senator. His son, W . J. Kirby (02-29) is a Circuit Judge . (J) T. E. Webber (52-73) was a lawyer, as were his sons T. ); and T. E. E. Webber, Jr. (89-13) and George Webber ( Webber, Jr. had a son, T. E. Webber III ( ) who was also a lawyer. (K) J . D. Cook (58-80) had two sons who were lawyers being J . D. Cook, Jr. ( -20) and Flippin Cook (86'{)7). Can tinued on page 34
33
By Professor Robert Brockmann Tw o members of the Fayetteville Bar have been teaching at the law school on a part time basis this fall. F. H. Martin of the firm of Bali, Gallman & Martin, has taken over the taxation courses left vacant when Professo r B ill Lancaster left to teach at Rutgers Un iversity Law School on a year 's leave of absence. Tom Burke of the law firm of Wade , McAllister, Wade & Burke has been teaching the course in Legal Profession , in the absence of Professor James W . Gallman, who is on leave. Assistant Professor Robert G. Brockmann has resigned from the facutty of the Schoot of Law, Fayetteville Division, effective January 1, 1973. Professor Brockmann served as Director of Continuing Legal Edu cation and was the first Dire ctor o f Admissions at the Law School , assuming this (L) W . G . Cook ( ) was a tawyer, and had three tawyer sons, being : L. Jean Cook (82-07), Fteet Cook ( ) and Robert Cook ( ). (M) Then there is the Arnotd Family which has tawyers for three generations. t. W . H. (Dick) Arnotd (61-82) was president of the Arkansas Bar Association in 1907-08. He had three sons who are lawyers : (a) W . H. Arnold, Jr. (93-16). (b) David C . Arnold (96-17) . (c) Richard L. Arnold (06-31) . W . H. Arnold , Jr. has two sons, both of whom are lawyers, being : W . H. Arnold III ( ) former Circuit Judge ; and Th omas S. Arnold ( ). Richard L. Arnold also has two sons who are lawyers, being : Richard S. Arnold and Morris S. Arnold (41-69) a law professor at the University of Indiana. Thus , in the three generations there are a tolal of eight lawyers. By oversight or ignorance, other " Generations of Lawyers" in South Arkansas may have been omitted ; bul enough have been listed to shew that " like father like son" bears out the noble tradition of the Legal Fraternity in South Arkansas . In limiting this article 2 to " Generations of Lawyers " in South Arkansas , there have, thereby. been eliminated many outstanding lawyers and judges, whose names have not been mentioned in the "Generations of Lawyers." There are Supreme Court Judges and Presidents of the Arkansas Bar Association, from South Arkansas , not heretofore mentioned, but now named : On the Arkansas Supreme Court, there were : Burrill B . Battle, Carroll D. J In Vol. 12 page 126 of the Arkansas Historical Quarterly, there ;s an article on " Radical disfranchisement in Arkansas; " and in Vol. 9 page 259, there is an article on "Arkansas Confederate leaders after the War."
2 This article cannot be concluded without thanking some of those who have furnished much aid and information to the writer. Some of whom are: Miss Annie Laurie Spencer, James H. Pilkinton , Adrian Williamson , H. W. (Bill) McMillan , Miss Francis Crawford, Horace McKenzie, Hugh Lookadoo, Ned Stewart, Jr., Lawson Glover and Judge Bobby Steel.
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Editor's Comment: - It is with regret we note that this column will be the last in the " News of the Law School" series to be written by Professor Robert G . Brockman. He has been a faithful contributor to The Arkansas Lawyer since our May 1969 issue . Since The Arkansas Lawyer is the Association's Bar Journal, its policy has been one of internal public relations - its purpose to keep the members advised as to what is happening In local legal circles. " News of the Law School" has been a valuable tool to inform the members concerning a most important facet in this connection . Professor Brockman's contribution, albeit without monetary recompense, has been truly outstanding. He plans on entering the private practice of law in Fayetteville - we wish him well in all things .
task upon the advent of the selective admission policy at the School of Law in 1971. He spent one semester at the little Rock Division teaching Constitutional Law in the place of former Professor Jerome Leavell who was then on leave. New officers have been named for the Arkansas Law ReWood , Turner Butler, Minor W. Millwee, Robert C . Knox , Charles C. Wine, Lyle Brown, Jim Johnson, and Ed . F. McFaddin . Presidents of the Arkansas .Bar Associations from South Arkansas , not heretofore mentioned , include : W . T. Wooldridge , A . F. Triplett , William S . Arnold , Louis Ramsey , Jr. and Paul B . Young . In conclusion , there is again expressed Ihe hope that each County Bar Association will compile and distribute the biographies of its lawyers. Many, many interesting items have been learned about outstanding lawyers in each county in South Arkansas . Surely the present day lawyers would do a fine service to the future generations to preserve the memories of the lives and labors of those fine lawyers who have gone before . â&#x20AC;˘
LA WYERS' MART Classified Ad Rate 20 cents per word each insertion$3.00 minimum WANT TO BUY Set of Arkansas Reports or Southwestern Reporter Arkansas Cases . Please advise condition and price desired . Robert G. Brockman , P.O . Box 1292, Fayetteville, Arkansas 72701 , Teleph o ne 521-1292 . Arkansas Statutes 1947 Annotated with current replacem ent, supplements, and index. Mitchell D. Moore, 306 West Hale Avenue , Osceola, Arkansas 72370 (563-5252). Wast 's Digest of Arkansas cases, Arkansas Reports , Vols. 99-250. R.B. McCullough , P.O . Box 390, Forrest City, Ark . 72335. LAWYER WANTED Three man firm in growing university town in Missouri needs experienced lawyer to replace partner mo ving to bench . Outstand ing opportunity for industrious person . Reply in c onfidence to Arkansas Bar Cen ter, 408 Do naghey Building , Little Rock, Arkansas 72201 . JANUARY, 1973
•
view for th e Sprin g Semester. They are : Doug Buford of Forrest City was selected as editor in chief of the Review.
Other officers are Webb Hubbell of Little Rock, managing editor; Mike Mashurn of Fayetteville, comments editor; Jack Lassiter of Little Rock, casenotes editor; Bobby Hargraves of Forrest City , business manager; John Crowell of Marked T ree, citations editor ; and Brady Anderson of Helena, Betty Anderson of Shreveport, La. , and Chuck Hanks of Fayetteville, all associate editors. We would like to again remind the practicing lawyers of the state of the Law School Placement Service. The service is quite flexible as far as providing for the needs of the individua l attorneys are concerned and interview ca n be arranged here at the Law School as well as having the prospective graduate come to the attorney 's law office. Resumes can also be furnished if requested . The on ly prob-
lems that arise are during holidays and just before final exams. This spring classes resume on January 15, 1973 and final examinations start on May 8, 1973. Naturally, it would be difficult to arrange interviews during the time close to these dates. Interested persons should contact the Student Director, Placement Service, University of Arkansas School of Law , Fayettevi lle, Arkansas , 72701.
Judge Darrell Hickman , Chairman of the Pre-Law Advisors Committee of the Arkansas Bar reports that the committee has been successful in contacting the various campuses in the state and advising them of the current admission requ irements in effect at the law school.
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··'1111"11. Ir I. jI rl • • • • (Editor's note : In this " Legal Heritag e" series of The Arka nsas Lawyer, we are reviewing the tenure of ea ch o f the livin g Association Past-Presidents . Th eir insight and fores igh t - never cease to amaze . Mr. Arno ld's address at th e Association's 70th Annual Meeting is undoubtedly we ll remembered. It was no " swan song" as he described it - rather a c ontinu ing challenge (22 Ark. L. Rev. 565) ,
In conclusion , then, I urge you and each of you that it is indeed a time for facing up. I believe you will agree with me that challenges to our system of law and ju st ice prevail today on a magnitude never before seen in t his country. Many of the problems exist beyond the borders of our state and , hence , are beyond our abi lity to solve . At the sa me time , many of those chal le ng es do exist in Arkansas . We must face up to them. We cannot continue to ignore them or hide our heads in the sand and hope they will go away. We cannot say "We will have none of that. " We must restore public confidence in our courts and our system o f justice. We must put away affirmatively the petty self-in terest and private political aspirations which stand in the way of a const ructive progressive exam ination of our judicia l system . If we persist in pettifoggery in our thinking and attitudes , we may we ll wake up some morning to find that our enti re legal structure has been slipped from beneath us. We must assure to every man in this state that justice can and will be done and is, in fact , being done, regardless of his race , color, national origin or economic status. We must make sure that our courts are pres ided over by men of unquestioned ability and integrity in whom the pub lic has confidence and that
36
our courts are administered in such a way that it can never be said in Arkansas, with any degree of truth , that justice is delayed and thus denied . The foundations upon which this profession has been built and lives today are great enough to sustain and meet these challenges. But to us, the inheritors of this glorious past , there is now cast down the sacred obligation to move forward and meet the challenge with honesty and integrity. We cannot do less. If we fail , I predict that there are those in this room today who will live to see the country lawyer as an extinct breed ; and in this context, all of us who practice in Arkansas are country lawyers. Will we continue living in the past, pursuing the old ways, resisting change, being more concerned about whether our political inf luence will win tomorrow 's case, being afraid to try our cases in an impartial forum ; or will we face up to the challenge, speak out and foster and encourage the programs, the laws and the activities that will restore public confidence in our system of justice and preserve for future generations the availability of the independent , private practitioner of the law , dedicated to the concepts of freedom and justice for every man? Indeed , it is a time lor laCing up.
JANUARY, 1973
1
IfE '''" FIII:I"8 ." •• Before his ringing conclusion, President Arnold pointed up a number of problem areas . . . Suppression of c ivil disobedience Dealing with minority groups Fair Tria l - Free Press " No Fault"' basic protectio n plan Overcrowded dockets - use of arbitration Group legal practice Urbanization of law practice Constant search for progress and justice Responsibility to speak out.
Since these problems are still with us, every citizen would profit by studying his views. WILLIAM S. ARNOLD President 1967-68 Arkansas Bar Association
INDHD, it ill a tim!! to comm!!nd Bill Arnold for hill "facing up" , , , u
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Some Tax Considerations For Practicing Lawyers
<Y
~~~~
Part I: Deductions Continued from Nov, 1972 issue - The Arkansas lawyer
by
Bruce R. Hopkins
(Mr. Hopkins was a featured speaker at the Arkansas Bar Association 's Fall Legal Institute, September 22-23, 1972. In view of the interest in his topic , his remarks will be published three Parts on " Deductions," " Oepreciation " and " Billing Practices." Part I on " Dedu c tions " will be presented in two issues. Mr. Hopkins is an associate of Williams , Myers and Quiggle of Washington , D.C. He is Co-author of the Chapter, " Federal Ta x Considerations for Practi cing Lawyers" in the ABA 's Lawyers Handbook, and author of several articles for The Tax Lawyer, The Practical Lawyer and the American Bar Association Journal.) Organ iza ti on Dues It goes without saying that lawyers can deduct dues paid to professional organizations as an ordinary and necessary business expense. 64 But what about dues paid to a country c lub or other social or athletic organization? As discussed, these entities are known in tax jargon as " entertainment facilities ." The rules as to deductibility of dues paid for the use of entertainment facilities - as opposed to the expenses of entertaining there - are even more rigorous than the previously discussed entertainment deduction rules. Dues or fees paid to any social, athleti c, or sporting club are treated as "expendi tures with respect to a facility used in connec ti on with entertainment. " 65 Consequently, more than SO per cent o f the use of the club must be business use to obtain a dues deduction . For example, use of a country club 40 per cent for business and 60 per cent for personal use will result in no dues deduction at all. Moreover, a lawyer can deduct only the portion of the SO ner cent-plus use which is " directly rel<.lted " to his practice. Here Again, deductibility is rooted in the " quiet business rule,"66 the satisfaction of which is deemed to satisfy the "directly related " requirement. 67 Consequently, having met the " primary use " test , a lawyer
38
can deduct on ly that portion of the club dues which corresponds to his actual use of his club for entertaining whicn is " directly related " to his practice. Also , again , in computing the percentage of club dues directly related to a lawyer's pract ice, he may include, in addition to the cost of his meals and those o f his clients , the cost of the meals of the spouses who go along .68 The " associated with " rule is unavailable as a basis for obtaining a deduction for country club dues. Thus, it is generally not enough to sustain a dues deduction if a lawyer entertains at his club after a business discussion at the office. The substantiation requirement s are, of course , applicable to social and athletic club entertaining whether the deduction is for entertainment costs or for dues. Thus, a lawyer should keep a log , showing the days of personal and business use of his c lub. If the club is used for a bona fide business discussion on the same day a lawyer's family uses it for personal use , the business use Counts toward the SO per cent requirement. It is possible, however, to sustain the deduction where personal use of a c lub exceeds business use on a calendar-day basis , if the facts and circumstances, such as duration of
business use or amount of expenditures , are right. Automobile Expenses A taxpayer can deduct , as ordinary and necessary business expenses, the costs o f maintaining an automObile where the auto mobile is used in connection with a trade or business . Thus, a lawyer who is required to use his automobite in connection with his practice, can deduct the expenses incurred in the operation o f the vehicle. The deduction is allowable, o f course. on ly with respect to the po rti on of the autom o bile expenses attributable to business, as o pposed to personal , use . Typi cal ly , the automobile expense deduction is ascertained by first determining the total amount of autom o bile expenses incurred during the taxable year. Then , to determine the deductible portion , such amount is multipl ied by a percentage, based on mileage for the year , reflecting the business use . Fo r examp le, if the expense of maintaining an aut omObile for the year was $2,000, and the tota l mileage was 30,000 miles, o f which 7,500 miles were fo r business use , the deductible Continued on page 40 64 . Reg . Sections 1.162-6, 1路162-15(c): Rev, Rul . 66-261 . 1966-2 C.B 47. 65. Reg . Section 1.274(e)(3)(h). 66. Reg . Section 1.274.2(1)(2j(i). 67 . Reg . Section 1.274.2{c)(6). 68, LaFo rge, sup ra.
JANUARY, 1973
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The Bench and Bar of Arkansas' 5th Chancery Circuit honored retiring Chancellor J . Ford Smith at a Gridiron Dinner, on October 24 , 1972 at the Country Club, Wynne , Arkansas. Judge Smith was " toasted " in turn by many members of the Circu it , and received a plaque "for his many years as a distinguished Arkan sas jurist. "
Jimason Daggett speaking for the 115 Lee County Bar
J. L. " Bex" Shaver presenting plaque to Judge J. Ford Smith
portion of the expenses would be 25 per cent or $500 ($2,000 x 7 ,500130,000) . However, the Internal Revenue Service has authorized an optional simplified method of computing the deductible costs of operating automobiles. Under this method, the automobile expense deduction may be computed at a standard mileage rate of 12 cents per mile for the first 15,000 miles of use each year for business purposes and 9 cents per mile for use for business purposes in excess of 15,000 miles per year .â&#x20AC;˘ 9 The Internal Revenue Service has prepared a worksheet (Form 2106) for computing deductible automobile expenses under either method. Costs which qualify as deductible automobile expenses include outlays for gasoline, oil, lubrication, washing, repairs, tires, supplies, parking fees, tolls, taxes, license tags, and insurance (Form 2106, Schedule A.) Deductible costs do not include the cost of the automobile nor rep lacements (e.g ., radio, motor) which either prolong the useful life of or increase the value of the vehicle. The cost of items which prolong the useful life or add to value may only be recovered through allowances for depreciation. However, a deduction compu ted un-
der the optional method for computing automobile expenses must be in lieu of all operating and fixed costs of the vehicle allocable to bu si ness purposes, except for parking fees and tolls. 7o In addition, the optional method may not be used where depreciation has been c laimed on the automobile in the past by use of a depreciation method other than the straight line method o r whe re additional firstyear depreciation has been c laimed .71 Moreover, to utilize this optional method , a taxpayer must actually own the automobile 72 and, if more than one automobile is operated for business purposes by the taxpayer on different occasions, the standard mileage rate must be applied to the total business mileage of such automobile to arrive at the deduction.1 3 A taxpayer, in computing deducti ble expenses with respect to an automobile used in his business, can include each year an amoun t representing a port ion of the depreciation in va lue o f the vehic le. This deduction is likewise confined to the portion of the cost o f the automobi le allocable to business purposes (Form 2106, Schedule 8) . The automobile expense deduction must, of course, be substantiated, as
must any transportation expenditure.1 4 However, the dai ly costs of automobile travel , such as lor gasoline and oi l, may be agg reg ated ." A lawyer shou Id also keep records showing (1) the dates of departure and return, (2) destination, an d (3) the business reason for th e travel o r the nature of the !;>usiness benefit derived or anticipated. 71S It is not eno ug h to simply show a reasonable method o f calcu lating the business mileage.77 Educational Expenses Generally, a tax payer can deduct , as an ord inary and necessary business expense, all expenses for education when undert aken fo r one of two purposes: either to (1) main tain or improve a skil l requ ired in his employment or other trade or business, or to (2) meet the express requirements 01 his employer, o r the req uirements of applicab le law or regu lations, imposed as a condition to the retention 69. Rev. Proc. 70-25. 1970-2 C .B. 506: Tho mas C. Sl. John,29 T.C .M. 1045 (1970). 70. Rev. Proc. 70-25, supra, Section 3.0l. 71. Rev. Proc . 70-25, supra, Section 3.05. 72. Rev. Proc . 70-25, supra, Section 2. 73. Rev. Proc. 70-25, supra, Section 3.02. 74 . IRC. Section 274(d) . 75. Reg . Section 1.274-5(b)(2)(i). 76. Reg. Section 1.274-5(b)(2)(ii) , (jii), (iv). 77. Imero O . Fiorent ino , 29 T.C.M. 1445 (1970).
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by him of an estab li shed employment relationship , status, or rate of compensation .78 Other educational expenditures are considered " personal " and do not qualify for the business deduction J9
Court has been quite liberal in finding the taxpayer q ualified fo r a new trade o r business. For example, in one case, a patent trainee , who was required by this empl oyer to attend law schoo l, studied to
What are "personal " educational
become a patent attorney. In denying
A specialty within the legal field
expenditures? Basically, they are o f two categories. First, a nondeductible education expense is for education required of the tax payer to meet the minimum educational requ ireme nts fo r qualification in his employment or other trade or business. 80 Consequently, a law student aspiring to the practice of law cannot deduct his law school expenses. Similarly, upon graduation, he cannot decou rse .81 Second, a nondeducti ble personal education expense is for education which is part of a program o f study being pu rsued by a taxpayer which will qualify him fo r a new trade or business. 82 The regulat ions under Section 162 take the position that the expenses o f, e.g. , an engineer or an accoun tant , for law school training , are nondeduc-
a deduction for his law school expenses. the court fo und that bec oming a patent attorn ey was a "new positi on. " 89 In another case, an Internal Revenue Service agent attempted to deduct law sch oo l expenses. Faced with the argument that his legal training qualified him for a new business, namely, as a lawyer. he c laimed that his business was being a " Federal in co me tax pro feSSional. " This is a business, he explained. which encompasses tax attorneys , tax account ants, and Internal Revenue Serv ice agents. Since, he argued, he was on ly making a " lateral shift" between categories, he was not qualifying fo r a new business. The Tax Court held that his expenditures were nondeductible. gO So much for personal education expend itu res and the expenses o f law students. What ab out deductible
shou ld not be considere d a new trade o r busi ness . The acquisition o f a specialty in law is wholly cons istent with the improvement o f skil ls required for practice generally. In the wo rds of the First Circuit, most occupations requ ire a bundle o f skil ls, and the fact that an individual acquires a new skill is irrelevant fo r tax purposes if th e individual's primary purpose is to add to his equipment in carrying on his pre-existi ng vocation. 9s Once it is determined that the educati on expenses are deductible, the expenditures for travel required to obtain th at education are also deductible. Th is form of business dedu ct ion includes ex pend itures for meals and lodging , as long as the tax payer is away from home overnight. 97 To sustain th e travel expense as an education deducti on. a taxpaye r must
tible, since the training would qualify
education
ad -
him fo r a new trade o r business.83 Presumably , under the reg ulations, this adverse resu It is not changed where the individual remained in his profession and did not undertake the practice of law . Nor is the result chan ged where the taxpayer is an empl oyee and is required to obtain a law degree, although he continues to practice his non-legal pro fessi on .84 The existing regulati ons covering
be able to estab lish that the travel was
mitted to the bar? Once a lawyer has entered pract ice , he will find it relatively easy to deduct his continuing legal education expenses. This is because the lawyer can establish that he is merely maintaining or improving his skills as a lawyer. Fo r example, a lawyer may return to law school for a graduate degree in law and deduct the cost, especially if the cou rses taken are in an area of law in which he specializes.91 He may also attend co llege for the purpose o f taking courses in such fields as accounting , business and the like. and deduct the expense, as long as he can show an improvement in or maintenance of skills. The deduction is not adversely affected if the courses taken lead to a degree. More commonly, a lawyer may take refresher courses dealing with current developments in law and deduct the expense. 92 Again , the principal test is whether the program of study leads to the obtai ni ng of a new skill. Fo r exam ple, if a general practitioner were to attend an institute as part of an effort to become a patent attorney, the cost of such education would not be deductible. How ever, the expenses o f attending the same in stitute would be deductible if his primary objective was to acquire a general knowledge o f patent law in order to im prove his general skills as a law yer. 93 The standby decision on this po int has been the Second Circuit's ho lding in Coughlin v. Comm.9 4 Cou ghlin was
undertaken primarily to obtain education. 98 A ce rt ain amount of personal activity incident to the trip , such as sightseeing or social visiting, will not destroy the deduction. Sti ll , the portion of travel expenses attributable to such personal activities is not deductible. But if the travel away from home is primarily personal , the expen d itu re s
duct the expense of a bar review
the
deduct ib ility
of
education
ex-
penses were promulgated in 1967 . Bef orehand, the Tax Court had held that an accountant could deduct the cost of attending law school where the legal training o btained was for the purpose o f improving his skills as an accountant. 8S In other cases decided befo re promulgation o f the present regulations, the law school expenses of a civ il ian Air Fo rce employee were held deductible. where his skill in writ ing regulati ons was improved,86 and a forensic pathologist was allowed to deduct law school expenses, since he was employed as an examin er of suspicious deaths and he planned on using his legal skills in performing his duties more effectively.S 7 How has this mo re rigorous qualification -on ly test fared in the courts? T he Tax Court, at least, seems to be adhering to it. 88 The Tax Court is repeatedl y holding that the expenses of law school incurred by an individual who subsequently entered practice as a lawyer are not deductible. On this poi nt, the
THE ARKANSAS LAWY ER
expenses
for those
the tax expert in his firm and regularly attended tax institutes. In allowing the deduction , th e Tax Court almost commended Coug hlin for keeping " sharp the too ls he actually used " in his practice. 9S
Continued on page 42 78 . Reg . Secti on 1.162-5(a) . 79. Reg . Sect io ns 1.162-5(b)(1 ). 1.162-1 (b)(9) . 80. Reg . Section 1.161-5(b)(2) . 81. Reg . Sectio n 1.162-5(b)(2)( iii ). Example (3); Rev . Rul. 72-450 .I. R.B . 1972-39. 31 ; Rev . Ru!. 69292. 1969-1 C.B. 84 . 82 . Reg . Section 1.162-5(b)(3)(i J. 83. Reg . Secti on 1.162-5(b)(3)(ii). Example (1). 84. Reg . Section 1.162-5(b)(3)(ii). Example (2). 85. Frank Kilgan no n. 24 T .C .M .619 ( 1965); Walter T. Charlton. 23 T.C.M . 420 (1964). 86. Dunald P . Frazee . 22 T.C.M . 1086 ( 1963). 87 . Campbell v. U.S .. 250 F. Supp . 941 (ED. Pa . 1966). 88. N. Kent Baker. 51 T.C . 243 (1968); Lawrence H. Bakken. 51 T.G. 603 (1969). afl'd 435 F.2d 1306 (9th Gir. 1971 ); Burke W . Bradley . Jr .. 54 T ,C . 216 (1970). 89 . Ro nald F. Weiszman n. 52 T.C. 1106 (1969). aII'd 443 F.2d 29 (9th C ir. 1971 ). 90. Jeffry L. Weiler, 54 T.C. 398 (1970): cl. Welsh v. U.S .. 329 F.2d 145 (6th Cir. 1964): William J . Brennan . 22 T .C.M . 1222 (1 963); Mitton L. Schultz, 23 T.G.M . 1372 (1 964 ). 91. Rev . Rul. 69-199 . 1969-1 C.B. 51. 92. Reg . Secti on 1.162-5(c)(ll : Coughlin v. Co mm .â&#x20AC;˘ 203 F.2d 307 (2d G!r. 1953). 93. Greenberg v. Comm .. 367 F.2d 663 (1st Cir . 1966). 94 . Coughlin v. Go mm .. supra. 95. Co ughlin V. C o mm .. supra. at 309 . 96. Greenberg v. Comm .. Supra . at 666. 97. Reg . Section 1.162-5(d). 98. Jo hn G, Fo rd . 56 T.C . 1300 (1971).
41
for travel, meals and lodging are not deductible.99 In one case, which is a classic illustration of this point, several doctors and their wives embarked on an 18-day ocean cruise to Europe. During some of the daytime hours, the doctors attended a few lectures. One doctor tried - unsuccessfully - to deduct the cost of the entire trip as a business deduction .lOo Another case ill ustrates the fine distinctions which can be drawn. A husband and wife spent a summer touring France. They were both high schoo l teachers: he taught Latin ; she taught world history. They both claimed a business deduction for the trip. The Tax Court disallowed his deduction but allowed hers. 10l Even on a personal trip, however, the expenses incurred which we re directly related to education pursuits, including meals and lodging , are deductible. There are tax savings to be found in a lawyer's ongoing legal education and these savings are not necessarily wholly lost even where a personal vacation is built around the instruction period. 102
The Home Office Most lawyers extend their work hours into the evenings and weekends. Certain ly, if such hours are spent in the lawyer's primary office located in his home, a business deduction is available. 103 For those who maintain quarters at home for extra work, tax savings from the second office at home may also be available. Generally, of course, the expenses of maintaining a household are nondeductible, being personal and living expenses.104 Basically, to sustain the home office deduction , a lawyer must be able to establish three items: (t) that a portion of his residence is c learly set aside for office space, (2) that this portion of his home is regularly used fo r office purposes, and (3) that, like all business expenses, the item is ordinary and necessary. Once these basic criteria are established , a portion of the expenses of maintaining one's home, allocable to business use , may be deductible. Thus, a pro rata portion of the following nondivisible expenses would be deductible: fuel , electriCity, telephone service, cleaning, fire and liability insurance, property taxes, rent , interest on a mortgage, exterior painting , exterior repairs (e.g .. roof , driveway) , interior repairs (such as to plumbing , e lectrical, and heating systems) , and depreciation on the home. Payment of the principal of a mortgage is not deduct ible, as it is a capital expenditure. I 05 The depreciation deduction is
42
computed on the lesser of the fair market value or the adjusted basis of the residence (exc lusive of land) at the time o f the conversion of a portion of the resident to business use, reduced by the salvage value. 106 In addition, a lawyer can deduct in full the cost of painting and repairs to the office portion of his home, and depreciation on office equipment. In addition to the foregoing criteria, the Internal Revenue Service takes the pOSition that the home o ffice deduction is on ly available to (1) an emp loyee (2) who, as a condition of his employment, is required to provide his own space and facilit ies for performance of his duties.107 That is, in the government's view, the deduction is unavailable to the employee who voluntarily and inCidentally maintains a home office 'OB and apparently, in the government's view, the deduction is completely unavailable to the selfemployed. For example, the government would deny the home office deduction to a corporation executive on the theory that he can remain a\ the company's o ffice to indulge in work after regular hours.l09 However, this highly restrictive and somewhat unrealistic view of the availability of the home office deduction has been rejected in the courts. The Tax Court has developed the doctrine that the home office deduction is available where the use o f one 's home for this purpose is "appropriate and helpful " to the conduct of one 's business. l10 The Tax Court has d ismissed the government's insistence that the taxpayer rema in at or return to his primary office in the o ff hou rs as being, at least in one case, "wholly impractlcal. " lll Despite the relative ease of securing the home office deduction under the "ap propriate and helpful " rationale, a lawyer should be prepared to be able to present good reasons for maintaining the second office. For example , he could contend his regular office is too far from his home to return to in the evenings and that his workload requires additional work in the off hours.ll2 Or, if he is a member o f two state bars, he could maintain a practice out of his home for cases involving the local jurisdiction. 113 Or, if in addition to his regular practice, he engages in writing or teaching activities, he could maintain a home office for research and related efforts.114 The point is that in all of the cases which enunciate the "appropriate and helpful " doctrine, the taxpayers had good reasons for not utilizing their primary o ffice in the off hours - and some of these taxpayers had no pri-
mary office at all. There is no requ ired method for allocating the expenses of maintaining one 's personal residence to the portion devoted to business use. Both the courts and the government are in agreemenl that the method must be reasonable, and must fairly and accurately discriminate between personal and business use. 11S Generatly, one lakes eilher a percentage of lotal square feet o r a ratio based on the rooms utilized for business purposes. For example, a lawyer may determine that his one-room office in his home comprises 15 per cent of the tolal space in his residence ; 15 per cenl of all expenses pro perly attributable to the use of this office in his pract ice would be deductible. Use whichever method is most beneficial - as long as it is reasonable. However, unless the home office is never used for personal purposes, the porti on of the expenses which are deductible must be determined on the basis o f time as well as space. Thus, a further allocation must be made on the basis o f the ratio of time the area is actually used for business purposes to the total amount of time it is available for all uses. The time allocation is determined on the basis of 24 hourS.llS Thus, if, in the example, the lawyer's one-room office is his den , which he uses in his practice on an average of two hours per day, only 2/24 of the expenses allocable to the 99. Irving Eisenberg . 26 T.C.M. 174 (1967). 100. Reuben 8 Hoover. 35 T.G. 566 (1961 ). 101 Stanley Marhn. 54 T,C. 560 (1970). 102, In June, 1972, the Internal Revenue Service ann ounced thai us auditors had been In路 structed to scrutinize deductions lor bUSiness tripS and conventi ons which are really vacations In disgUise f R S. News ReI. No. 1224. The Service warned It was going to locus largely on time comparisons between personal and bUSiness pursuits. The SerVice 'vas especially Critical 01 the promotional mat,~,' ,al which IS sometimes being sent out. In that vacation pOSSibilities are emphasized and full deductibility is implied. 103. Reg . Section 1.162-6. 104. I.R.C . Section 262. 105. W. F. Bolin, 26 T.C.M. 62 (1967) 106. Reg. Section 1.167(g)-1. 107. Aev. Aui. 62-180. 1962-2 C.B. 52. 108. Reg . Section 1.262-l(b)(3). 109. Reg. Section 1.262-1 (b)(3). Example (4). lID, Cosimo A. CarlUCCI, 37 T.G. 695. 699 (1962); Herman E. BISCholl, 25 T.G.M. 538 (1966): Christopher A Raflerly, 30 T.C.M. 848 (1971); Marvin L. Oielrlch. 30 T,G M, 685 (1971). 111 Newl v. Gomm. 432 F.2d 998 (2d Clf. 1970). 112. Bischoff, supra. at 539 113. Dietrich. supra 114. Rev. Aul. 64-272. 1964路2 C.B. 55; Auper1 Stuart, 20 T.G.M. 938 (1961) ; MonroeJ. Paxman. 50 T.G. 567 (1968), aft'd 414 F.2d 265 (101h Gir. 1969).
115. Martha E. Henderson. 27 T.C.M. 109 (1968); Aev . Rut. 62路180. 1962路2 C.B. 52. 116. Rev. Aul. 62-180. 1962-2 C.B. 52; Henderson, supra, at 113: Horatio C. Hoggard III. 67-2 U.S.T.C. Par. 9742 (E.D. Va. 1967).
JANUARY, 1973
,I
den would be ded ucti ble as business expenses. Like other business deductions, the successful home office deduction requires strict record.keeping . The case books are full of cases where taxpayers convinced a court of the existence of a valid home office deduction , only to have the actual deduction chopped to as little as ten per cent of the amount claimed because of inadequate documentation .117 One shou Id keep a record of the amount spent on repairs , utilities, telephone service, taxes, and the li ke. Cancelled checks, receipts , vouchers and similar reco rds should be retained. Also , one should keep records of capital items, such as equipment, furniture, and improvements, for purpo ses of depreciation . And, to insure the deduction, a diary of time spent and business accomplished should be kept , and where possible, a notation as to why the activity was undertaken at home. Items Permanently Nondeduc tib le As has been repeatedly stressed so far . a fawyer may generally deduct all the "ordinary and necessary" expenses paid or incurred in connection with the conduct of his profession . In certain instances. a lawyer will be lace d with the pro blem of allocating his expenses between those which are deductible business expenses and those which are considered either capital expenditures or nondeductible personal, living , or family expenses. One category of nondeductible expenses are those which are deemed illegal or contrary to public policy.118 Payments by a lawyer to an organization , a substantial portion o f the activities o f which is lo bbying , would generally not be deductible. However, expenses incurred with respect to legislative matters which may be deductible by a lawyer are those ordinary and necessary expenses incurred in carrying on a practice which are directly in connection with (1) appearances be fore, su bmission of statements to o r com munications with Congress o r a state legislatu re, with respect to legislation or proposed legislation of direct concern to him , or (2) communication of information between himself and an organization of which he is a member, with respect to legislation or proposed legislation of direct interest to the taxpayer and the organization. 119 Additionally , there is now avai lable a tax credit or deduction for political contributions.120 Campaign expenses incurred by a lawyer while running fo r election to public office are no t deductible, regard less of the outcome. 121 This policy was recen tl y tested in the Tax
THE A RKA NSAS LAWY ER
Court by a lawyer who ran for the office o f state senator. He contended that the campaign expenses were ordinary and necessary expenses paid in carrying on his business as a lawyer. His rationale was twofold : (1) since he was trained and experienced in matters relating to the making , construction and enforcement of laws, he had a duty as a lawyer to seek public
office and participate in public affairs , and (2) his campaign was a practical means of advertising and a way to increase his legal business . The Tax Court, however, did not allow the deduction .I22 The prohibitions on the deductibility of campaign expenses are not confined to efforts for public office. One
11 7 Larry N Kul Chtn skl, 27 T.C M. 216 (1968); Bischo f! . supra. at 539; LoUIS Lin dauer. 15 T C M 896 (1956); Lyndo l l. Youn g . 16 T.G.M . 1012 ( 1957), all"d 268 F 2d 245 (9th Glr. 1959). \ 16. Ta nk Truc k Rentals. Inc .. II . Gomm .. 356 U.S. 30 (1956): Cammarano II. U.S .. 358 U.S. 496 (1959).
119. I A C Secllon 162(e). 120. I A.C Secllon 4\. 121 McDon ald II. Comm .. 323 U.S. 57 (1944): Shoyer II US , 290 F.2d 617 (3rd Cir. 1961); cert. den . 368 U.S. 835 (1961): Mays II . Bowers. 201 F.2d 401 (41h Clf . 1953). cerl den . 345 U.S. 969
Continued on page 44
(1953) 122. William H. Maness, 54 T .C . No . 155 (1970).
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43
lawyer. who was a member of a social club, ran for election to the club 's governing board at the request of a client who sat on the club 's nominating committee. Thirty-five per cent of his firm 's fees came from clients who were members of the club and he was able to show an increase in fees and business following his election . Nonetheless, the Tax Court denied the deduction .123 Amounts spent on travel and the like in searching for new business, such as the job-hunting expenses of a lawyer, are not deductible. 124 However, fees paid to employment agencies are deductible, whether employment is secured 125 or if the agency does not find a position for the taxpayer. 126 Also, the expenses of gaining admission to the bar of another state are not deductible.127 Oftentimes, amounts expended by a lawyer on behalf of a client are not deductible as business expenses, in that such outlays are characterized as loans or advancements. Advances to clients which are virtually certain to be repaid are not deductible as business expenses.128 Thus, where a law firm specializing in plaintiff's personal injury litigation advanced litigation
costs to clients under contingent-fee contracts, the Internal Revenue Service successfully characterized the expenditures as being in the nature of loans and hence nondeductible.129 The same result obtained with respect to costs, which were to be reimbursed , incurred for a client in connection with a divorce action. 130 as well as where practitioners paid clients ' personal living and sustenance costs while their cases were awaiting trial.' 31 While ethical referra l fees are considered deductib le expenses, the full amount of a professional fee whlch is subject to an improper fee-splitting arrangement must be included in the recipient's income.l32 However, expenses incurred in defending disCiplinary proceedings are deductible as business expenses. 133 In the past, the deductibility of expenses incurred in the process of defending against disbarment, income tax evasion or similar charges, arising out of the conduct of one's business or profession , depended upon the outcome of the case, as a successful defense resulted in deductibility of the fees and costs,13 4 while the deduction was disallowed where the taxpayer
did not prevail .135 However, in light of the Supreme Court decision in Comm. v. Tellier,136 the cost of defendi!lg a criminal prosecution ariSing out of the conduct of one's business is deductible regardless of the outcome. This is also the case with respect to civil proceedings asserting violation of tax and other laws . • 123 Charles 0 Long . 32 T.C 511 (1959) aff'd 277 F.2d 239 (8th Cl r 1960) . 124. Morlon Frank , 20 TC 511 (1953). 125. Rav Ru!. 60·223. 1960·1 C.B 57: DaVid J . Pnmuth , 54 TC . 374 (1970); Guy R. Mollo. 54 T.C 558 (1970) . 126. Leonard F. Cramona, 58 T.C. No. 20 (1972); Kennath R. Kenfield , 54 T.C. 1197 (1970). 127. Ryman. supra: Yaroslaw Horodysky. 54 T.C 490 (1970) . 128. Warren Burnett. 42 TC. 9 (1964). affd 356 F 2d 755 (5th CIf. 1966). cert. den . 385 US. 832 (1966)
129. Adolph B Canalo 111 , 53 T C. 217 (1969). all d 72·2 US T ,C , par 9598 ; Hearn V Comm., 309 F.2d 431 19th CIf 1962). cert . den 373 US 909 (1963). 130. Henry F, Cochrane. 23 B T A 202 (193 1). 131. Fran c.s H Monek. 25 T.C.M 582 (1966) 132. lilly V Comm .. 14 I.C 1066 (1950). alld 168 F 2d 269 (4th Clr. 1951). rev 343 U S. 90 ( 1952). 133 Cochrane. supra. 134. Morgan S Kaufman . 12 T.C . 1114 (1949). 135. Acker v Comm .. 258 F.2d 568 (6th CIL 1958). afl'd 361 US. 87 (1959) : Th omas A. Joseph. 26 T.C. 562 (1956). 136. Comm . v. Telher. 342 F 2d 690 (2d Clr. 1965). afl'd 383 U.S 687 (1966).
MISSING AND UNKNOWN HEIRS LOCATED NO EXPENSE TO THE ESTATE
WO R L D ·WIDE SERVI CE FOR
COURTS - LAWYERS - TRUST OFFICERS ADMINISTRATORS - EXECUTORS
America n Archive:J A :J:Jocialion tNTERNATIONAL PROBATE RES EARCH 449 WAS HIN GT ON BUILDI N G WAS HIN GTO N, D. C.
44
JANUARY, 1973
In jfflemoriam ED. G . LOVETT 1913 - 1972 Ed. G. Lovett died from a heart attack on Dec. t 1. 1972 while on a business trip to New York. He was born in Georgia, but mov~ ed to little Rock at an early age and graduated
from
the
little
Rock
School system. Then he received his law degree from the Arkansas Law School, and at all times thereafter was a member of the Arkansas Bar Association and also the Amencan Bar Association. In 1933, Mr. Lovett began working for the Commercial National Bank in little Rock, and was Senior Trust Officer of that institution at the time of his death. He was a recognized expert on the Uniform Commercial Code, and was chairman of the trust comm iSSlOn of the Arkansas Banker Association. Mr. Lovett was a veteran of W.W.II. and was a member of the Presbyterian Church. He IS survived by one brother. PAT C. HERRINGTON 1891 - 1972 Patrick C. Herrington died in lIltle Rock on Dec. 13, 1972. He was born in Georgia. and was a graduate of Mercer University, where he was a member of the Sigma Nu Fratern ity. Mr. Herrington had lived In Arkansas for many years, and had Visited lawyers all over the State. He was a member of the MasoniC Fraternity, and was a past member of the Kiwanis Club, and was also past vice president general of the Sons of the American Revo lution . He is survived
THE ARKANSAS LAWYER
by hiS wife. one daughter and one brother. ROBERT LAW 1912 - 1972 Robert Law died of a heart attack in Fort Smith on Oct. 18 , 1972. He was born in Benton County. Arkansas on Nov . 14, 1912, and was an honor graduate of the University of Arkansas Law School in 1943. For many years, Mr. Law was a claims adjuster for an insurance company, but retired from that work In 1970 and was engaged in the active practice of the law in Fort Smith at the time of his death . He was a member of the Arkansas Bar Assoclalion, the Optimist club. and the Presbyterian Church. He is survived by his wife, his mother. 1 son , 2 daughters and one grandchild . JOHN L. DAGGETT 1906 - 1972 John Lockwood Daggett of MarIanna died on Nov. 20, 1972. He was a member of the distinguished Daggett family of Eastern Arkansas. He attended UniverSity of the South at Sewanee. Tenn. , Cumberland University. University of Virginia and University of Arkansas. For thirty years he was in the active law practice. and at various times, he was executive director of the Arkansas Free Enterprise Association. member of the Arkansas Game and Fish Commission , and Arkansas Wild Life Association. He retired from the active practice in 1960. He was a member of the EpIScopal Church ; and IS survived by hiS
wife, one son, one daughter, his mother. three sisters and three grandchildren . J. W. DURDEN 1919 - 1972 Joseph Woodrow Durden, a prominent Fort Smith attorney. died Oct.
24, 1972. Mr. Durden graduated from the University of Arkansas, where he was a member of the Sigma Alpha Epsilon fraternity ; and was a W .W. II veteran. He was a member of the First Presbyterian Church in Fort Smith; and is survived by his wife, two sons, a daughter. his mother. a sister and two grandchildren JUDGE J. PAUL WARD 1890 - 1972 Judge Paul Ward, a retired justice of the Arkansas Supreme Court, died on Nov . 8, 1972. He was born in Independence County, Arkansas , graduated from Arkansas College in Batesville, attended Tulane University, and received hIS law degree from the University of Oklahoma. He was a W.W.I veteran . Judge Ward had an illustrious career: having served as Mayor of Batesville, member of the Arkansas State Senate, Chancery Judge, and Justice of the Arkansas Supreme Court. from which he retired on Dec. 31,1968. At the time of his death , he was a member of the Justice Bu ilding Commission . Judge Ward was a Methodist, a Mason and a Kiwanian. He is survived by his wife, two sons. one daughter, and two grandchildren.
45
1973 Abidian World Conference: Progress Judges and members of the legal profession will convene in a World Conference in 1973 in Abidjan. Ivory Coast, August 26-31. Sponsored by the World Peace Through Law Center, this Conference which has generated world -wide interest and support will be attended by more than 3,000 participants from over 100 nations. This first meeting of the world's legal profession in Africa, as befitting its site, will stress the role of the developing countries in international law and will be a tremendous educational and professional Conference with enormous benefit for lawyers and judges, Charles S. Rhyne, Presi dent of the Center, stresses the fact that every judge, and every lawyer in the world is invited to participate in this grea t Conference. Mr , Rhyne said : "A visit to Afr ica is a fascinat ing experience even aside fr om th e pro fessional and personal enrichment coming from joint endeavors with jurists and lawyers from over 100 nations ." The Conference will provide and propose concrete, prac· tical solutions to many of the world's current problems . A Model Uniform Law for nations on Control of Dangerous Drugs, one result of the Center's year-long study, by a group of experts from throughout the world, on the Control of International Narcotics, will be offered for approval. Practical dis· cussion of environment problems of the developing countries in their important process of industrialization will occur. An updated version of the Center's Environmental Convention will be considered. Included in the Conference environment program will be the model laws for nations on noise control, water and air pollution and weather modifications. There will be a tremendous spotlight on Human Rights by a celebration of the 25th Anniversary of the signing of the Uni· versal Declaration of Human Rights. A report will be presented on human rights progress for the past 25 years highl ighting decolonization of Africa , destigmat izing of the "untouchables" and wiping out of race, color and creed discriminations on a world-wide basis. As the culmination of another in depth study report, a Model National Law on Rights of Refugees will be presented for consideration . WORLD LAW DAY 1973, stressing the crucial relationship between religion and the Izw will be a highlight in Abidjan and will be celebrated throughout the World on August 26, 1973. An update will be presented on the Center's A irplane Hijacking Convention and Model Uniform Law. Urban Development - a subjeCT of importance to all cities but particularly so to the developing nations with their accelerated process of urban· ization will be a major topic. There will be Demonstration "Trials" similar to the famous Belgrade Spaceship Trial on skyjacking and pollution to demonstrate the practical feasibil it y of an international court system. An essay contest on the theme " The Impact of Developing Nations on International Law" will help focus upon this area of Afr ican concern at this historic world conference. 46
The Center will celebrate, in Abidjan. its 10th Anniversary as an independent and non-political international association
of the world's leading lawyers and jurists. With participants now from 135 nations, the Center ha s stressed re peatedly the necessity of building a solid found ation of in ternati onal law
rules and legal institutions in order that peace, security , and order with justice will prevail throughout the world. Those desiring full details of the program , travel, and other arrangements for the Conference should write to : World Peace Through Law Center, 400 Hill Bu ilding, Washington , D.C. 20006 USA . •
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17
JANUARY, 1973
some "light" reading
• • •
Commentary: The Exparte Application For A Continuance By Herschel L. Feibelman *
To the Editor: The attached article appeared recently in the Shelby County Bar Journal, Syllabus, Memphis, Tennessee. I thought it amusing and something that might well fit in the next edition of The Arkansas Lawyer. I'm sure the republication would not be objected to. S;ncerely yours,
Charles W. Light Circuit Judge Second Judicial Distric t of Arkansas
There is a prevalent, almost ra mpant , urge to improve the practice of Law. It manifests itse lf in procedure reforms, uniform sta tute, and techniques of specialization. It has called for evaluation of every aspect of th e lawyer's role -
every
one, t hat is, exce pt the Applica tion for a Continuance. Th is highly specialized area of trial practice has, up to now, escaped uniformity. codification and reform; it remains the
oasis of ind ivi dual ity, the last frontier o f the practioner against the invasion o f conformity . It is, none the less, one of the most important parts of t he legal craft, a tale nt which should be ho ned to the sharpest edge . Th e role of the continuance is undeniably important; if all matters set for trial were expeditiously heard our alreadyoverworked-Court system would be strained beyond enduro ance. (1) Th e lawy er who seeks to continue a matter should think of himself as performing a necessary function, a part of the whole, as it were . On the principle t hat no one can make a mis tak e in a matter not tr ied , he favo rs everyon e; h imsel f, his adversary and the Court. Acknowled ging its significance, the techniq ue of the Applicati o n mu st be examined. Th e key to the successful Appl icatio n of a Conti nu ance is preparation, Far in advance o f the setting of a cause, counsel must begin his prog ra m of del ay. If possible, two cases, in dif fer ent cou rts, should be set on the sa me day . Th is provides the opportunity to avoid the trial of at least one and, in what is called th e Quinella Approach , possi bly both matters. (2) If. unfortunately, the date of the setting does not suggest ground s for the Applicatio n, some other bas is should be sought . Here ingenuity and resourcefuln ess playa major role. Some classic standbys are : the Out-of-Town Engagement, the Religous Holiday and, in a desperate situation, Minor Surger y (this can range all the way from a close haircut to unexpected dental anguish . No judge, however stern, would requ ire a lawyer to go to trial wi th a missing lower plate ,)
Unlik e preparation for other matters in litigation, the advo· cate seeking a continuance should anticipate that his application will be unopposed. Th is is justified for two reasons: First, it is likely that one's adversary is planning the same outcome, and second, if opposed by adversary or Court, the hurt, sur· prised look of the Applicant lends a certain poignancy to the effort. As in all matters of advocacy, the Applicant mu st be confident. (3) Th is can be demonstrated in one of several ways: Appearing without the file or Law Books. If this technique is adopted it is best to leave the client in the hall. Another is the Moving Appl icat io n . Th is is done with a slow undulating mo t ion toward th e door as if the issue never was in doubt. Still another device is the Murmur (sometimes called the Mumble). Th is is acco mpl ished by approaching the counsel table, hea d downcast and remarks directed toward one's own shirt pocket . Since most judges remember their days as practitioners, this met hod wi ll be imm ediately recognized and the continuance granted. It is important, though, in us ing the Murmur, to employ certain key words such as ... reconciliation ... or ... settlement. As in every field of endeavor, practice makes perfect. A lawyer should try to continue every case at least once. (Please note that the term 'resetting' has not been used; to the true pilgrim of procrastination, the term resetting is anathema). It's delightful to try a case and win, but considering all the fine things one can do o n any free day, it's even better to have a case and continue it. . ·Member, Memph is & Shelby County Bar A ssociation; Author, " Shar' ing of Fees in Association for Continuance Application." Nonconnah Quarterly. Feb. 1956. ft) Finister on Continuances. p. 27. (2) Bomprezzi. Trial Technique. pp. 167·9. (3) Lauderdale Counry Law Review, Vol. VII. p , 521.
Reprinted with permission of Author and Memph is & Shelby Counry Bar Associati on. Author is member of Feuerstein. Feibelman & Kaminsky. Memph is. Tennessee.
THE ARKANSAS LAWYER
47
Editor 's Comment : AEGIS is a fea ture of
the
Arkansas
Association's tional
Bar
educa-
program
con-
cerning docker co ntrol and other areas o f high risk experience in professional lia bility
cases.
SAFEGUARDING YOU R PROFESSIONAL FUTURE
When In Rome: It Is Wise To Check The Local Statutes! the problem
An insured attorney based in the city was handl ing the claims of four peo ple who were involved in a car accident in an adjoining state. He was not aware, however, of the one year statute of limitations for bodily injury c laims in that state . While the insured attorney was dealing with an independent adjustm ent firm by ma il and negoti ati ng for a settlement, the statute ran out. Subsequently, he received a letter from another firm of attorneys who were engaged to represent the four individuals in their claim against the insured attorney for medical expenses and loss of time.
48
the result
Settlement was made with the four individuals because of the insured attorn ey's failure to check the statute of limitations in an out of state claim.
advice
Always check the specific pOin ts of law when handling cases involving another state. /I in doubt, refer it to a lo c al attorney.
JANUARY, 1973
Great partnership: Rodgers & Hammersteln ••• another great partnership: ARKAnSAS BAR ASSOCIATion & RATHER BEYER & HARPER Now working together with CNAlinsurance to provide you with the two most vital forms of fundamental protection for every practicing attorney: • Professional Liability • Business Liability Fiduciary coverage Settlement only with consent Legal defense provided
nEW PROfESSionAL LIABILITY PROGRAm $100,000 per claim
Want more details? Call or write Arkansas Bar Association Administrator Rather, Beyer & Harper Three Hundred Spring Building Little Rock , Arkansas 72201 (501) 372-4117