Lawyer The Arkansas
A publication of the Arkansas Bar Association
In This Issue: Judicial Deference to Agencies Remote-Work Cyberthreats Pandemic Reflections and Updates
Vol. 56, No. 2, Spring 2021 online at www.arkbar.com
KEYNOTE SPEAKERS HILARIE BASS
123 ANNUA L ARKANSAS BAR ASSOCIATION
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President & Founder of the Bass Institute for Diversity & Inclusion; President of the American Bar Association (2017-2018)
STACY LEEDS
Foundation Professor of Law and Leadership, Arizona State University Sandra Day O’Connor College of Law; Dean Emeritus, University of Arkansas School of Law
JOEL OSTER
Comedian of Law
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LAURA WASSER
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PUBLISHER Arkansas Bar Association Phone: (501) 375-4606 Fax: (501) 421-0732 www.arkbar.com EDITOR Anna K. Hubbard EXECUTIVE DIRECTOR Karen K. Hutchins PROOFREADER Cathy Underwood EDITORIAL BOARD Anton Leo Janik, Jr., Chair Melody Peacock Barnett Luke K. Burton Dr. Frankie Martin Griffin Haley M. Heath Ashley Welch Hudson Jim L. Julian Philip E. Kaplan Tory Hodges Lewis Drake Mann Gordon S. Rather, Jr. William A. Waddell, Jr. Brett D. Watson David H. Williams OFFICERS President Paul W. Keith President-Elect Bob Estes Immediate Past President Brian Rosenthal President-Elect Designee Joe F. Kolb Secretary Glen Hoggard Treasurer Joe F. Kolb Parliamentarian Aaron L. Squyres BAR ASSOCIATION STAFF Executive Director Karen K. Hutchins Executive Administrative Assistant Michele Glasgow Director of Government Relations Jay Robbins Director of Education Kristen Frye Data Integrity Specialist Alexis Teal Director of Finance & Administration Yan Chen Meetings & Membership Director Jennifer Jones Office & Data Administrator Cynthia Barnes Publications Director Anna Hubbard
The Arkansas Lawyer (USPS 546-040) is published quarterly by the Arkansas Bar Association. Periodicals postage paid at Little Rock, Arkansas. POSTMASTER: send address changes to The Arkansas Lawyer, 2224 Cottondale Lane, Little Rock, Arkansas 72202. Subscription price to nonmembers of the Arkansas Bar Association $35.00 per year. Any opinion expressed herein is that of the author, and not necessarily that of the Arkansas Bar Association or The Arkansas Lawyer. Contributions to The Arkansas Lawyer are welcome and should be sent to Anna Hubbard, Editor, ahubbard@arkbar.com. All inquiries regarding advertising should be sent to Editor, The Arkansas Lawyer, at the above address. Copyright 2021, Arkansas Bar Association. All rights reserved.
The Arkansas
Lawyer Vol. 56, No. 2
features 10 Un-bowing to Deference: Where We're At, and Might Be Going, on Judicial Deference to Agencies in Matters of Statutory and Regulatory Interpretation By Joshua C. Ashley 14 Remote-Work Cyberthreats and What to Do About Them By Drake Mann 20 View of the Pandemic from the Technology Trenches By Timothy N. Holthoff 22 Taking the Bench Amid a Pandemic By Judge Daniel Brock 26 Reflections on the Year 2020 and 30 Years on the Bench By Judge Mary Spencer McGowan 28 Defending During the Pandemic How COVID-19 Impacted the Practice of Criminal Law By Coleen Barnhill Kordsmeier 30 License To Ill: Implementing COVID-19 Vaccination Policies in the Workplace By Alexander D. Clark 38 Law School Updates Contents Continued on Page 2
Lawyer The Arkansas Vol. 56, No. 2
in this issue ArkBar News
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2021 Virtual Arkansas High School Mock Trial Competition ArkBar Executive Director's Report 2020-2021 Patron and Benefactor Members
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columns
President’s Report Paul W. Keith
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Young Lawyers Section Report Chris Hussein
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40
Arkansas Access to Justice Disciplinary Actions
42 45
Arkansas Bar Foundation
46
In Memoriam
47
Cover Photo by Mike Pirnique
Board of Trustees
District A1-A2: Maggie Benson, Evelyn E. Brooks, Leslie Copeland, Jason M. Hatfield, Brian C. Hogue, Sarah C. Jewell, Alan L. Lane, George M. Rozzell District A3: Kesha Chiappinelli, Geoff Hamby, Jason B. Hendren, Ryan Scott District A4: Kelsey Kaylyn Bardwell, Craig L. Cook, Brinkley Cook-Campbell, Dusti Standridge Delegate District A-5: Melanie Ann Beltran, Joe Denton, Todd C. Watson, William “Zac” White District B: Jordan Bates-Rogers, Randall L. Bynum, Thomas M. Carpenter, Tim J. Cullen, Bob Edwards, Caleb Peter Garcia, Jesse J. Gibson, Steve Harrelson, Michael McCarty Harrison, Rachel Hildebrand, Anton L. Janik, Jr., Jamie Huffman Jones, Jessica Virden Mallett, Skye Martin, Kathleen M. McDonald, J. Cliff McKinney II, Molly McGowan McNulty, David Stockley Mitchell, Jr., Carter C. Stein, Patrick D. Wilson District C1-C2: Christopher Heil, Victoria Leigh, Stefan McBride, Jeremy M. McNabb, Meredith S. Moore, John Ogles, John Rainwater, George R. Wise District C3: Bryce Cook, Paul Nathaniel Ford, Brant Perkins, Paul D. Waddell District C4: S. Taylor Chaney, Carol C. Dalby, Amy Freedman, Taylor Andrew King Delegate District C5: Kandice A. Bell, Laurie Bridewell Steele, R. Margaret Dobson, George A. Lea, III At Large Members: Brian Rosenthal and Chris Hussein; Liaison Members: Dean Theresa M. Beiner, Dean Margaret Sova McCabe, Harry Truman Moore, Gregory J. Northen, Judge Hamilton H. Singleton, Judge Cindy G. Thyer Law Student Representatives: Hayden Gore, University of Arkansas School of Law; Deepali Lal, UA Little Rock William H. Bowen School of Law
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Is it Time to Change Your 401(k) Provider? The ABA Retirement Funds Program has just made that decision much easier. The ABA Retirement Funds Program (“Program”) is working with plan sponsors to address many top concerns. Fiduciary protection, revenue transparency, and governance play an important role in how your firm’s plan is structured. As the retirement landscape continues to change you need a provider that strives to maximize the value of your plan, improve retirement outcomes, and help you manage your plan expenses. We have been doing just that for nearly 60 years. The ABA Retirement Funds Program is an employer-sponsored 401(k) plan designed specifically to address the retirement needs of the legal community. The Program is structured to provide affordable pricing whether you are a sole practitioner or a large corporate firm. The ABA Retirement Funds Program is available through the Arkansas Bar Association as a member benefit. Please read the Program Annual Disclosure Document (April 2020), as supplemented (November 2020), carefully before investing. This Disclosure Document contains important information about the Program and investment options. For email inquiries, contact us at: joinus@abaretirement.com. Registered representative of and securities offered through Voya Financial Partners, LLC (member SIPC). Voya Financial Partners is a member of the Voya family of companies (“Voya”). Voya, the ABA Retirement Funds, and the Arkansas Bar Association are separate, unaffiliated entities, and not responsible for one another’s products and services. CN1474756_0123
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Oyez! Oyez!
Board of Trustees Elections
ACCOLADES ArkBar's Young Lawyers Section was recognized by the American Bar Association’s Young Lawyers Division as a 2021 Star of the Quarter for its Record Sealing and Name Change Clinic. Cynthia Nance, dean emeritus and the Nathan G. Gordon Professor of Law at the U of A School of Law, received the University of Iowa Hancher-Finkbine Alumni Medallion 2021. Heather B. Hersh of the Law Office of Joseph Paul Smith, P.A. and J. Cliff McKinney II of Quattlebaum, Grooms & Tull PLLC were recognized by the American Bar Association as ABA Free Legal Answers Pro Bono Leaders. Steve Quattlebaum of Quattlebaum, Grooms & Tull PLLC was selected for the Lawdragon 500 Hall of Fame. Brice White received the Esther Silver-Parker Corporate Trailblazer Award. Brooke Moore and Laura O-Bryan with MyVirtual.Lawyer received the James I. Keane Memorial Award during the ABA TECHSHOW 2021. APPOINTMENTS AND ELECTIONS Earnest Brown Jr., Circuit Judge for the 6th Division of the 11th Judicial District West, has been nominated to the Arkansas Judicial Discipline and Disability Commission. The United States District Court for the Western District of Arkansas appointed Christy Comstock as United States Magistrate Judge for the Western District of Arkansas. Edie R. Ervin has been named the next United States Magistrate Judge for the Eastern District of Arkansas. Milton Fine has been promoted to chief administrative law judge for the Arkansas Workers’ Compensation Commission in Little Rock. Ed McClure, a partner at Matthews, Campbell, Rhoads, McClure & Thompson, P.A., has been elected to the Arkansas PBS Foundation Board of Directors. David Biscoe Bingham of Mitchell Williams has been accepted into Class II of the Heart of America Fellows Institute of the American College of Trust and Estate Counsel. Brittany S. Ford of Quattlebaum, Grooms & Tull PLLC has been named Secretary for the Board of Directors for Pulaski and Perry Counties CASA. Kendall Lewellen, an attorney at the Center for Arkansas Legal Services, has been appointed to serve on the Arkansas Access to Justice Commission. Ashley Gill of Mitchell Williams has been accepted into Class II of the Heart of America Fellows Institute of the American College of Trust and Estate Counsel. WORD ABOUT TOWN Todd Whatley has been hired as senior counsel for the Wilson Estate Planning Group in Little Rock. Jenny Wilkes has joined Barber Law Firm in Little Rock in an of-counsel role. Hilburn, Calhoon, Harper, Pruniski & Calhoun, Ltd. rebranded to Hilburn & Harper, Ltd. Jason Browning, Michelle Browning, and Cal Rose of Wright Lindsey Jennings have been elected into partnership. Laura J. Pearn of Ledbetter, Cogbill, Arnold & Harrison, LLP has been elected as a partner in the firm. Daniel H. Wigley has joined the Gibson & Keith, PLLC, law firm of Monticello. Cristy Park joined Arkansas Access to Justice as the new program coordinator. Stephen Hester has been made a member of Spicer Rudstrom, PLLC. Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C. announced that Nick Thompson has joined the firm as counsel in the Little Rock office. Rose Law Firm announced that Michael K. Goswami has been named a member and Nancy Smith and Jessica Witherspoon have joined the firm as associates. Submit your Oyez! news to ahubbard@arkbar.com. Look for the Oyez feature with photos in ArkBar new Monthly Electronic Member Newsletter. Visit arkbar.com/for-attorneys/publications/member-newsletter.
Electronic ballots were counted on May 19, 2021, in contested races for positions on the Association's Board of Trustees. The Trustees were elected to the 20212022 Board for three year terms effective July 1, 2021. Also considered in this spring's election was an amendment to the Association's Constitution. The Association's membership voted to support the Constitutional Amendments as recommended by the Board of Trustees. Congratulations to the following candidates: District A1 Ryan Scott District A2, A3 Evelyn E. Brooks Kristin Pawlik Russell Winburn District A4 Brinkley Cook-Campbell Dusti Standridge District B9-B15 Stephen Bingham Steve Harrelson Michael McCarty Harrison Anton L. Janik, Jr. William C. Mann J. Cliff McKinney II Emily Runyon Danyelle Walker Patrick Wilson District C5 Todd Watson District C6 Bryce Cook Paul Waddell District C7 Taylor Chaney District C8 Blake Montgomery
NEW DATE FOR MID-YEAR MEETING NOVEMBER 10-12, 2021 HOLIDAY INN AIRPORT LITTLE ROCK
Vol. 56 No. 1/Spring 2021 The Arkansas Lawyer
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PRESIDENT’S REPORT
Arkansas Bar Presidents Past and Future “Service is the rent we pay for being. It is the very purpose of life, and not something you do in your spare time.” – Marian Wright Edelman
On the second floor of the Arkansas Bar Center are two walls with pictures of the past presidents of the Arkansas Bar Association. As President Bob Estes and President-Elect Joe Kolb take office it is appropriate to remember some of our predecessors—if only for a bit of context or simply out of curiosity. I am the 123rd President of the Arkansas Bar Association and, like many of my predecessors, I want to believe that the past year has been one like none other. But that is axiomatic. So, in no particular order and at the risk of leaving out a lot, we pause to remember some milestones and a few millstones in our history. U.M. Rose was the first President of the Arkansas Bar Association and many others from his eponymously named Rose Law Firm (which celebrated its 200th birthday in 2020) have served as association president, most recently Brian Rosenthal, whose creativity and enthusiasm as president are unsurpassed. U.M. Rose’s grandson, George Rose Smith, was elected to the Arkansas Supreme Court in 1948 and served until 1987. On a personal note, when Justice George Rose Smith retired, he sold his personal copy of The Arkansas Law Review to my law partner, Cliff Gibson of Monticello. Justice Smith and Bar President 6
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Paul W. Keith is the President of the Arkansas Bar Association. He is a member of Gibson & Keith, Monticello
“We do not inherit the Earth from our ancestors, we borrow it from our children.” – Native American Proverb
J. Gaston Williamson (1968-1969) delivered the books to Monticello while on a hunting trip to Drew County. A bit more about Justice Smith later on. There was at least one milestone and one millstone in 1919. On July 28, 1919, less than a month into the term of William H. Martin of Hot Springs, Arkansas, the Nineteenth Amendment to the U.S. Constitution was ratified in Arkansas, recognizing the right of women to vote. Just two months later, September 30-October 1, 1919, an estimated 100-237 black people and five white people died in Phillips County, in what has come to be known as the Elaine Massacre. One hundred years later, President Rosenthal and I represented the Arkansas Bar Association in downtown Helena-West Helena at the dedication of a memorial to those who died in the massacre. Past President John Gill (19921993) was also in attendance. Later in 2019, the Elaine Twelve were memorialized on the Arkansas Civil Rights Heritage Trail in Little Rock. The Elaine Twelve owed their lives to Arkansas Bar President Thomas McRae (1917-1918). The Elaine Twelve were 12 black men who were convicted of murder in connection with the Elaine Massacre and were sentenced to death. Scipio Africanus Jones convinced the U.S. Supreme Court in 1923 to require that the U.S. District Court for the Eastern District of Arkansas examine the fairness of their trials.1 Thomas McRae was elected governor in 1920 and served from 1921 to 1925. After the Supreme Court ruled in favor of Scipio Africanus
Jones’ client, Governor McRae commuted the Elaine Twelve’s sentences and they were released. More about Governor McRae later. Lest we believe we are unique for having lived through the COVID-19 pandemic, one need only look to the 1918 flu epidemic, which took the lives of about 7,000 Arkansas residents; the mortality rate at Camp Pike (now Camp Robinson) was so high that the undertakers who had the government contract for the camp were overwhelmed and the Army assigned government embalmers to keep up with the deaths, and a statewide quarantine was put in place.2 Such was the water in which Thomas McRae’s successor as Bar President, J.H. Carmichael of Little Rock, swam. By way of comparison, as of May 16, 2021, there had been 5,793 deaths from COVID-19 in Arkansas.3 In 1927, W.T. Wooldridge of Pine Bluff took office in the midst of a great flood that inundated about 6,600 square miles in Arkansas with 36 of the 75 counties being flooded to some degree and water up to 30 feet deep in places. The September 1927 National Geographic said that the streets of Arkansas City were dry and dusty at noon, but by 2:00 p.m., “mules were drowning on Main Street faster than people could unhitch them from wagons.”4 More about a mule skinner Arkansas Bar President later. As late as the 1960s one could see in my home town of Lake Village the “high water mark” about six feet high on the old county jail. And the railroad bridge between flooded North Little Rock and Little Rock was washed away by the flood.
1927 Pine Bluff Flood Encyclopedia of Arkansas
But 1927 would not be the last time the Bar Association and its members were touched by high water. In 2019, the Bar Center was evacuated and sandbagged when the Arkansas River swelled out of its banks, less than a month before the Annual Meeting. President-Elect Rosenthal and his Rose Law Firm provided temporary quarters for bar staff. At least three Arkansas Bar Presidents served during another Arkansas millstone. In 1954, the U.S. Supreme Court in Brown v. Board of Education of Topeka, Kansas ruled that racial segregation in public education was unconstitutional and federal troops were called to enforce the law of the land in 1957 at Central High School.5 Shields Goodwin (1955-1956), Little Rock, was the son of a Congressman from Warren. Eugene A. Matthews (1956-1957) was from Pine Bluff, and Edward Wright (1957-1958) served from Little Rock. Mr. Wright also served as president of the American Bar Association—as did U.M. Rose. He was a founding member of Wright, Lindsey and Jennings. His obituary appeared in The New York Times on February 2, 1977.6 The intersections between Arkansas Bar Presidents and the judiciary are too numerous to count, but, at the risk of leaving some out, a few spring to mind. Bar President William H. Arnold of Texarkana (1907-1908) was a Circuit Judge and the grandfather of two Eighth Circuit Judges, Morris S. Arnold and Richard S. Arnold. They were the first two brothers to serve concurrently on the same federal appeals court. President John A. Fogleman of West Memphis (1958-1959) spent 70 years in the profession, including 14 years as a justice of the Arkansas Supreme Court, the last one as chief justice. He was one of the most prolific justices in the court’s history, writing more than 1,000 opinions, which were profusely documented and footnoted.7 He was a contemporary of Justice George Rose
1927 Lakeport Flood Encyclopedia of Arkansas
Smith, who prided himself on opinions that were concise and uncomplicated, usually no more than five pages. It seemed to court observers that each took pleasure in contrasting his brevity or complexity with the other’s.8 Judge Fogleman’s son, John, is a circuit judge and was a President of the Arkansas Bar Foundation. President Ron Harrison of Fort Smith (2000-2001) is the father of Chief Judge of the Arkansas Court of Appeals Brandon Harrison. And, President T.D. Wynne (1929-1930) of Fordyce was the grandfather of Arkansas Supreme Court Justice Robin Wynne and his brother, Tom, who is a district judge in Fordyce. At least two Arkansas Bar Presidents have landed on the federal trial bench. Henry Woods (1972-1973) and William R. Wilson, Jr. (1984-1985), both of Little Rock, come to mind. Judge Wilson is married to Circuit Judge Cathi Compton, whose father, Robert C. Compton of El Dorado, served as Bar President in 19751976. Judge Wilson will be dubbed the muleskinner Arkansas Bar President after his affection for the mules he owns and raises. The thread of family also runs between Arkansas Bar Presidents. Lamar Pettus (1993-1994) and Donna C. Pettus (20092010) are the first husband and wife to have both served as President. Harry P. Daily (1931-1932) from Fort Smith was the grandfather of Thomas A. Daily, who served as President in 2003–2004. Harry P. Daily founded the firm in 1912 with John P. Woods and Ben Kimpel, whose son eschewed the practice of law and became a professor at the University of Arkansas in Fayetteville and for whom Kimpel Hall is named.9 While women have had the vote since 1920, the Bar Association has not been so quick to recognize their leadership. Only six women have been elected president, beginning with Carolyn B. Witherspoon in 1995, followed by Sandra Wilson Cherry
in 2001. Rosalind M. Mouser was elected in 2008, immediately followed by Donna C. Pettus in 2009, by Denise Hoggard in 2016 and by Suzanne G. Clark in 2018. Carolyn Witherspoon has recently been inducted into the Arkansas Women’s Hall of Fame. The Association’s recognition of minorities in leadership has been even slower. Eddie H. Walker of Fort Smith (2015-2016) is the only African American to be elected President of the Arkansas Bar Association. Mr. Walker has deep roots in service to others, having been a member of the board and President of Arkansas Legal Services. The thread of law partnership also runs through Arkansas Bar Association Presidents. While there have been numerous presidents from the larger law firms such as Herschel H. Friday (1976-1977), a small firm in southwest Arkansas is particularly interesting. In the tiny town of Prescott, the firm of McKenzie, Vasser & Barber was begun by the aforementioned Thomas McCrae (later Governor McCrae). Other Association Presidents from that firm include W. V. Tompkins (1910-1911), James McKenzie (1991-1992) and Glenn Vasser (2005-2006). The Bar Association and the Arkansas Bar Foundation jointly sponsor the Jim McKenzie Award for Professional Excellence. And there are two Pine Bluff threads among the Bar Presidents. Ramsay, Bridgforth, Robinson & Raley of that city claims the most Bar Presidents, with W. Coleman (1920-1921), N. J. Gantt, Jr. (1940-1941), Louis L. Ramsay, Jr. (1963-1964), E. Harley Cox, Jr. (1979 -1980), Rosalind Mouser, and Tony Hilliard (2017-2018). The second thread is Pine Bluff High School. Presidents Fred S. Ursery (2004-2005), Glenn Vasser, Rosalind Mouser, and Richard L. Ramsay (20072008) all graduated from Pine Bluff High School.10
Vol. 56 No. 1/Spring 2021 The Arkansas Lawyer
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Compiling this admittedly incomplete survey has been a humbling experience. In addition to the threads and intersections mentioned, a commitment to our profession and to the people of Arkansas emerges. These people all took an oath to support and defend the Constitutions of the State of Arkansas, the United States, and the Arkansas Bar Association and to uphold the high ideals that they embody. They stood for justice and the rule of law. And they lived the maxim that was so eloquently stated by Marian Wright Edelman. It has been a privilege to follow in their footsteps and to borrow this Association from our children. Endnotes: 1. Paul Keith, I Love to Tell the Story, The Arkansas Lawyer, Winter 2021, at 6. 2. Timothy G. Nutt, 1918: A different pandemic, Arkansas Democrat Gazette, Sept. 21, 2020, at 15, available at https://www.arkansasonline. com/news/2020/sep/21/1918-adifferent-pandemic/#:~:text=In%20 Arkansas%2C%20about%20 7%2C000%20residents,did%20not%20 begin%20in%20Spain. 3. Tracking Coronavirus in Arkansas: Latest Map and Case Count, The New York Times, May 16, 2021, available at https:// www.nytimes.com/interactive/2021/us/ arkansas-covid-cases.html. 4. Flood of 1927, Encylopedia of Arkansas, available at https:// encyclopediaofarkansas.net/entries/floodof-1927-2202/. 5. Desegregation of Central High School, Encylopedia of Arkansas, https:// encyclopediaofarkansas.net/entries/ desegregation-of-central-high-school-718/. 6. Ed Wright Dies, New York Times, Feb. 2, 1977, available at https://www.nytimes. com/1977/02/02/archives/edward-wrightdies-exhead-of-bar-unit-partner-in-a-littlerock-ark.html. 7. Ernest Dumas, John Albert Fogelman, Encyclopedia of Arkansas, available at https://encyclopediaofarkansas.net/entries/ john-albert-fogleman-8918/. 8. Id. 9. Paul Keith, Diversity – and Justice – For All, The Arkansas Lawyer, Summer 2020, at 7. 10. Interview with Rosalind Mouser (May 19, 2021). ■ 8
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YOUNG LAWYERS SECTION REPORT
Serving Others
As we close out the bar year, I wanted to reflect on the things that the Young Lawyers Section was able to accomplish this year. We started the year off by partnering with the Center for Arkansas Legal Services to put on an Estate Planning Clinic for Education Workers. In October the Young Lawyers Section co-sponsored a Record Sealing Clinic which provided 136 record sealing documents to 30 different individuals. We were also able to host a small Wills Clinic for the Pea Ridge Police Department this winter. After the new year we co-sponsored a Name and Gender Marker Change Clinic that saw 10 volunteer attorneys donate time. On April 10, we put on our annual Wills for Heroes Clinic. This year’s clinic was entirely virtual for the first time. YLS Chair-Elect Payton Bentley was integral in planning and running this event. This statewide event saw 35 volunteer attorneys assist 84 First Responders and their families in preparing 504 estate planning documents. This Wills for Heroes event was the largest and farthest-reaching Clinic to date! To end the bar year, we are going to partner up with Legal Aid of Arkansas, Inc. in late June for another Name and Gender Marker Change Clinic. A few other projects the Young Lawyers Section has been working on to round out the year are updating the Domestic Violence Handbooks and our Diversity and Inclusion Scholarship program. YLS has formed a committee led by Alexandra Benton, YLS District Representative, that is diligently working to update the statewide Domestic Violence Handbook for survivors and attorneys. We also created a joint committee that contains members of the Young Lawyers Section and the Arkansas Bar Commission on Diversity
Chris Hussein is the Chair of the Young Lawyers Section. He is a staff attorney with Legal Aid of Arkansas, Inc.
and Inclusion. This committee has been tasked with developing scholarships for law students at the law schools in-state focused on diversity and inclusion. Four scholarships in the amount of $2,500 each will be awarded at the YLS awards ceremony at Annual Meeting to the selected recipients. Once the scholarships have been awarded the committee will then shift its focus to sustaining the scholarship in some form for future years. This winter the Young Lawyers Section was recognized by the American Bar Association’s Young Lawyers Division as a 2021 Star of the Quarter for our Record Sealing and Name Change Clinic. YLS will also be presenting three awards this year at our award ceremony in addition to the scholarships previously mentioned. Alexandra Benton will receive a YLS Award of Excellence for her work in chairing the committee updating the Domestic Violence Handbooks and for organizing our YLS Trivia Night last fall. Ray Slaton, District Representative, will receive a YLS Award of Excellence for his expertise and assistance with organizing the Wills for Heroes event. Payton Bentley, Chair-Elect, will receive the Judith Ryan Gray Outstanding Young Lawyer award. Payton is receiving this award for his tireless efforts in making sure the Wills for Heroes event was planned, attorneys were recruited, and that the event was executed flawlessly. (Editor's Note: Chris Hussein is being honored with a Golden Gavel award for his work as YLS Chair and the Frank C. Elcan Award for his commitment and dedication to YLS.) There is no doubt the Young Lawyers Section will excel under his leadership next bar year. All of the open positions on the YLS Executive Board for the next bar year have
been filled. Will Ogles of Little Rock will serve as Chair-Elect. Kelsey Boggan of Fayetteville will begin a three-year term as a District A Representative. Zach Trail of Little Rock will begin a three-year term as a District B Representative. Rob Riley of Jonesboro will begin a three-year term as a District C Representative. Frank Jenner of Little Rock will begin a three-year term as an At-Large Representative. Lauren Spencer of Little Rock will begin a two-year term as an At-Large Representative. Serving as YLS chair for the last 20 or so months has been an honor and a privilege. YLS has reached new heights and is only going to continue to soar. Next year’s YLS Executive Council is one that has experience and one that I know will continue to make the Arkansas Bar Association and Community proud. ■
Congratulations to YLS members receiving awards at this year's Annual Meeting!
Payton C. Bentley
Alexandra Benton
Chris Hussein
Ray Slaton
Vol. 56 No. 1/Spring 2021 The Arkansas Lawyer
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Un-bowing to Deference: Where We’re At, and Might Be Going, on Judicial Deference to Agencies in Matters of Statutory and Regulatory Interpretation By Joshua C. Ashley
L
ast spring, the Arkansas Supreme Court clarified decades of seemingly conflicting precedent on when Arkansas’ judicial branch should defer to the executive branch on the legal meaning of a statute. No longer would an administrative agency’s view of a statute be given “great deference.” No longer would it be judicially embraced unless it was “clearly wrong.” An agency’s interpretation of a statute would now be reviewed afresh, under a de novo standard of review.1 And when the agency’s view comes into play at all (such as when the statute is ambiguous), it will operate as one of many interpretive tools—a light on the text, but not the sun. This article briefly sketches the antecedents of the rule announced in Myers v. Yamoto Kogyo Co., and then offers a few thoughts about its implications and where things might go from here.
First, antecedents. It’s difficult—perhaps impossible—to isolate the seed of agency deference in Arkansas law. By 1926 a lean shoot had appeared, when the Supreme Court said that the federal Land Department’s interpretation of homestead laws was “at least highly persuasive,” though not controlling.2 That case, Moore v. Tillman, got picked up by a treatise (Crawford’s Construction of Statutes), and, on that current, blew into a 1942 case called Walnut Grove School District No. 6 v. County Board of Education, which is perhaps the earliest full treatment of deference in a majority opinion:
Joshua C. Ashley is a partner at Friday, Eldredge & Clark, LLP. His practice focuses on commercial litigation and appeals. 10
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This administrative interpretation of the legislation is not, of course, conclusive; but it is not to be disregarded. At section 219 of Crawford’s Interpretation of Laws it is said that “As a general rule executive and administrative officers will be called upon to interpret certain statutes long before the courts may have an occasion to construe them. Inasmuch as the interpretation of statutes is a judicial function, naturally the www.arkbar.com
construction placed upon a statute by an executive or administrative official will not be binding upon the court. Yet where a certain contemporaneous construction has been placed upon an ambiguous statute by the executive or administrative officers, who are charged with executing the statute and especially if such construction has been observed and acted upon for a long period of time, and generally or uniformly acquiesced in, it will not be disregarded by the courts, except for the most satisfactory, cogent or impelling reasons. In other words, the administrative construction generally should be clearly wrong before it is overturned. Such a construction, commonly referred to as practical construction, although not controlling, is nevertheless entitled to considerable weight. It is highly persuasive.” Among the numerous cases cited in support of this statement of the law is our own case of Moore v. Tillman, 170 Ark. 895, 282 S.W. 9.3
"The functions of agency and court may continue to collide, and the idea of using administrative interpretation as a tool will have to be developed and refined in later cases."
Our Supreme Court and Court of Appeals have cited the Walnut Grove formulation at least a dozen times in the 70plus years since it was published. Though oft invoked, agency deference has not been universally praised. A full look at the pros and cons is beyond the scope of this article, but a word or two is apt. On the pro side, consider Justice Jackson’s points in Skidmore v. Swift, which came down from the United States Supreme Court just two years after Walnut Grove came down in Arkansas.4 As Justice Jackson noted, there is great benefit to considering the views of the agency that administers the statute, owing both to the agency’s expertise and to the reliance interest that grows around the agency’s administration of the statute over time.5 This reliance interest, especially in terms of how the agency and the public have gotten along with the statute through the years, is what Walnut Grove meant by a “practical construction.”6 There is also the point, expressed in another United States Supreme Court case called Chevron, that perhaps the legislative branch intends for policy judgments to fill any gaps or resolve any ambiguities in a statute, and it makes sense for the administrative agency’s policy judgment (unless it’s unreasonable) to control in that circumstance.7 Justice Kagan recently put the theory in plainer terms: “sometimes the law runs out, and policyladen choice is what is left over.”8 On the other hand, deciding how hard
to rest on an agency’s interpretation in any given case is a tough line-drawing exercise.9 Plus, deference may become an offramp that allows courts to bypass the hard work of puzzling out a difficult statute.10 Tag it ambiguous, and the work is largely done.11 There is also some risk of uneven application. In a 1939 case, the Arkansas Supreme Court, without addressing deference, landed on an interpretation of certain liquor laws that, according to the dissent, had long been applied differently by the commissioner of revenues, such that the agency’s construction should not have been disturbed by the majority.12 But the next year, the same court, speaking through the same justice who wrote the 1939 majority opinion, specifically noted that a particular construction of the statute in that case “has been applied by the state land office,” and was therefore entitled to “considerable weight.”13 The biggest criticism of agency deference, though, relates to separation of powers. Arkansas’ Constitution prohibits each governmental department from exercising a power belonging to another, unless the Constitution separately requires it.14 Judicial recitations of Arkansas’ deference standard routinely paid pen service to the court’s responsibility to decide a statute’s meaning, but there was often an immediate pivot to deference that left separation of powers—at least as a practical matter—in doubt.15 The result was a judicial canvas that looked, in
the words of Chief Justice Roberts, “like one that Jackson Pollock got to first.”16 Enter Myers. In April 2020, without a request by either party, the Supreme Court quietly but decisively “clarified” its agencydeference doctrine.17 It was clarification by elimination. No longer would the Court speak in terms of deference. An agency’s interpretation of a statute, the Court said, is only and always to be reviewed de novo.18 “After all, it is the province and duty of this Court to determine what a statute means.”19 And the statute’s meaning, at least when the text is unambiguous, lies in its words.20 The agency’s interpretation is not entirely out in the cold, though. Where ambiguity exists, “the agency’s interpretation will be one of our many tools used to provide guidance.”21 No justice in Myers dissented from this view.22 Arkansas was not the first state to part with deference by judicial action. Other states were moving away from deference as early as 2008.23 Wisconsin, for one, made the break in 2018.24 So did Mississippi.25 Florida did too, but by constitutional amendment rather than judicial action.26 The Arkansas General Assembly, for its part, had ended deference in tax cases back in 2009.27 But Myers marked a clear line in Arkansas that, so far, is holding firm. A few months after Myers, the Supreme Court decided a case in which the parties fully briefed a challenge to agency deference in an appeal
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from the Oil and Gas Commission.28 The Court reiterated the standard from Myers, and left it at that.29 Toward the end of 2020, in a tax appeal under the Tax Procedure Act, the Court held that the Myers standard applied there too.30 (As noted above, the Tax Procedure Act had rejected deference in 2009.31) That brings us current. But what’s next? Near the top is the question whether courts should defer to an agency’s interpretation of its own regulation, as opposed to a statute—what federal courts call Auer deference.32 The Supreme Court went a long way toward answering that question—at least by implication—in American Honda, the late 2020 tax appeal noted above. Honda had argued that an agency regulation interpreting a statute was void as applied because it varied from the statute.33 The Supreme Court declined to consider the regulation, citing Myers.34 This indicates that an agency regulation merely interpreting a statute is unlikely to receive consideration by the Court when the subject statute is unambiguous. A tougher question is what happens when the regulation falls more on the implementing side of the interpreting/implementing line.35 And what, if anything, does Myers say to an administrative law judge or agency head in a regulatory adjudication under the Administrative Procedures Act? Myers’ separation-of-powers rationale would seem not to reach the agency operating within itself, which could create inefficiencies in judicial review under the APA. Maybe the agency head defers to the agency’s view of the statute, but the reviewing circuit court cannot do likewise. And then the appellate court looks past the circuit court to the agency’s decision, but reviews issues of statutory interpretation de novo.36 What’s to hold the agency to the same interpretative framework as the reviewing courts? Another question is what to do with a federal agency’s interpretation of federal law in a state-court case pressing a federal standard of care. What, for instance, about Ms. Franco’s case against Bunyard Supply for selling a secondhand pistol to an escaped convict in violation of federal gun-sale regulations?37 Or what about a state-court suit pressing federal employment claims that a defendant neglects or decides not to 12
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remove to federal court? Skidmore, after all, was a Fair Labor Standards Act case.38 A final question (at least for this article) is how—and why—the agency’s interpretation should function as a “tool” used by the court. As one judge has observed, the agency and the court are not sitting down to the same task when they approach the governing text: [I]t seems to me that the agency is not trying to answer the same question that we are. The court tries to find the best objective interpretation of the statute, based on the statutory text. The agency instead asks if there is a colorable interpretation that will support the policy result that the agency wants to reach.39 There is nothing inherently wrong with an agency pursuing a policy agenda—that’s the prerogative of the executive branch. But the judicial branch is doing different work: determining what the lawmaking branch meant by its laws at the time they were passed. The functions of agency and court may continue to collide, and the idea of using administrative interpretation as a tool will have to be developed and refined in later cases. No doubt there are other open issues that in time will surface for resolution. For now, we have all benefitted from the Court’s clarification of agency deference, and must be on the lookout for further points of application. Endnotes: 1. Myers v. Yamoto Kogyo Co., Ltd., 2020 Ark. 135, at 4–6, 597 S.W.3d 613, 616–17. 2. Moore v. Tillman, 170 Ark. 895, 899, 282 S.W. 9, 11 (1926). 3. Walnut Grove Sch. Dist. No. 6 of Boone Cnty. v. Cnty. Bd. of Ed., 204 Ark. 354, 358–59, 162 S.W.2d 64, 66 (1942). (The Court in Walnut Grove referred to the treatise as “Crawford’s Interpretation of Laws.” Id. at 358, 162 S.W.2d at 66. As best the author can tell, however, the treatise is called “The Construction of Statutes.” Section 219 from that treatise matches, verbatim, the language quoted in Walnut Grove. Special thanks to Carol Hampton at
the Supreme Court Library for supplying the relevant excerpt.) To be fair, a 1940 case had mentioned in a footnote that “considerable weight, in arriving at [the] meaning of [a] doubtful statute, must be given to practical construction placed upon it by executive officers of state, especially when such construction has been unchallenged over [a] long period of years.” Ware v. Dazey, 201 Ark. 116, 120, 144 S.W.2d 463, 465 n.3 (1940). And a 1939 dissent set out a thorough argument for deference as well. McKeown v. State, 197 Ark. 454, 471–72, 124 S.W.2d 19, 28 (1939) (McHaney, J., dissenting). But Walnut Grove appears to stand as the earliest complete treatment in a majority opinion. 4. Skidmore v. Swift & Co., 323 U.S. 134, 139–40 (1944). 5. See, e.g., Skidmore, 323 U.S. at 139–40. 6. Walnut Grove Sch. Dist. No. 6., 204 Ark. at 359, 162 S.W.2d at 66. 7. Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, 467 U.S. 837, 843–44 (1984). 8. Kisor v. Wilkie, 139 S. Ct. 2400, 2415 (2019). 9. Skidmore, 323 U.S. at 140 (weight of agency’s judgment will vary in each case depending on several factors). 10. Hon. Raymond M. Kethledge, Ambiguities and Agency Cases: Reflections After (Almost) Ten Years on the Bench, 70 Vand. L. Rev. En Banc 315, 319–20 (2017) (“And I would suggest that the persistence and willingness of judges to work hard before declaring statutes ambiguous is an important but perhaps overlooked difference between judges.”). 11. Id. at 324 (“[I]n agency cases it often seems that the court pauses only briefly at step one, without much effort to hack through the undergrowth, before proceeding straightaway down the cleared path of step two.”). Cf. Kisor, 139 S. Ct. at 2415 (“a court cannot wave the ambiguity flag just because it found the regulation impenetrable on first read. Agency regulations can sometimes make the eyes glaze over. But hard interpretive conundrums, even relating to complex rules, can often be solved.”). 12. McKeown v. State, 197 Ark. 454, 471, 124 S.W.2d 19, 28 (1939) (McHaney, J., dissenting).
13. Ware v. Dazey, 201 Ark. 116, 120, 144 S.W.2d 463, 465 & n.3 (1940). 14. Ark. Const. art. 4, § 2. 15. Myers, 2020 Ark. 135 at 4–5, 597 S.W.3d at 616–17. 16. Gunn v. Minton, 568 U.S. 251, 258 (2013). 17. Myers, 2020 Ark. 135, at 4–5, 596 S.W.3d at 616. 18. Id. at 5, 597 S.W.3d at 617. 19. Id. 20. Id. 21. Id. at 5–6, 597 S.W.3d at 617. 22. See generally Myers, 2020 Ark. 135, 597 S.W.3d 613. 23. In re Determination of Existence of Significantly Excessive Earnings for 2017 Under Electric Security Plan of Ohio Edison Co., —N.E.3d—, 2020 WL 7033864, at *14 (Ohio Dec. 1, 2020) (DeWine, J., concurring). 24. Tetra Tech EC, Inc. v. Wis. Dept. of Revenue, 914 N.W.2d 21, 63 (Wis. 2018). 25. King v. Miss. Military Dept., 245 So. 3d 404, 408 (Miss. 2018). See also HWCCTunica, Inc. v. Miss. Dept. of Revenue, 296 So. 3d 668, 681 (Miss. 2020) (Mississippi
statute requiring trial court to give deference to Department of Revenue’s interpretation of statutes was unconstitutional). 26. Frank Shepherd, et al., The Demise of Agency Deference: Florida Takes the Lead, 94 Fla. Bar J. 1, 18 (Jan. 2020), available at https://www.floridabar.org/the-florida-barjournal/the-demise-of-agency-deferenceflorida-takes-the-lead/. 27. See Act 755 of 2009, § 2. 28. Hurd v. Ark. Oil & Gas Comm’n, 2020 Ark. 210, at 8, 601 S.W.3d 100, 104. The author notes that he was counsel in Hurd. 29. Id. 30. Am. Honda Motor Co. v. Walther, 2020 Ark. 349, at 6, 610 S.W.3d 633, 636. The author notes that he was counsel for amicus curiae in Honda. 31. Ark. Code Ann. § 26-18-406(c)(3). 32. Kisor v. Wilkie, 139 S. Ct. 2400, 2411 (2019). 33. Am. Honda Motor Co. v. Walther, 2020 Ark. 349, at 10, 610 S.W.3d at 638. 34. Id. at 10, 610 S.W.3d at 638–39. 35. See Ark. Code Ann. § 25-15-202(9)(A) (defining “rule” under the Administrative Procedures Act as “an agency statement of
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general applicability and future effect that implements, interprets, or prescribes law or policy, or describes the organization, procedure, or practice of an agency and includes, but is not limited to, the amendment or repeal of a prior rule”) (emphasis added). See also Ark. Code Ann. § 20-19-511(b) (authorizing Arkansas Game and Fish Commission to adopt “rules and regulations to implement and enforce” statutory restrictions on the possession of large carnivores). 36. Ark. St. Hwy. & Transp. Dept. v. Lamar Advantage Holding Co., 2011 Ark. 195, at 4, 381 S.W.3d 787, 790. 37. Franco v. Bunyard, 261 Ark. 144, 145–147, 547 S.W.2d 91, 92–93 (1977). 38. Skidmore, 323 U.S. at 139–40. 39. Kethledge, supra n.10 at 323. ■
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Remote-Work Cyberthreats and What to Do About Them
By Drake Mann
Some remote work is here to stay, even if COVID goes away. Practicing law from home requires knowing and managing attendant security and privacy risks. Competent representation of clients requires knowledge of “the benefits and risks associated with relevant technology.”1 Two technology sets in particular will likely continue to be part of every law practice going forward: those for remote connections to the office and for videoconferencing. But these technologies increase the attack surfaces available to bad actors, threatening one of the legal profession’s most important ethical obligations: to make “reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.”2 By becoming more aware of these threats, gaining a better understanding of the relevant technologies, and taking steps to mitigate the vulnerabilities created by those technologies, you can competently use these technologies and protect your clients’ interests. Cyberthreats posed by remote work are not confined to the home. Therefore, this article will also examine the threat landscape between the office and home. Drake Mann is a Shareholder and Director of Gill Ragon Owen, P.A. He is a privacy law specialist certified by the ABA-accredited International Association of Privacy Professionals (IAPP). The IAPP has also designated Mr. Mann a Fellow of Information Privacy and awarded him certifications in privacy technology and privacy management. He is also a Certified Information Systems Auditor (ISACA) and a Certified Cloud Security Professional (ISC)2.
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Traveling between the office and home. Some practitioners do not work exclusively at one place or another. If you divide work between home and office, and if your laptop travels between home and office, be aware that data breaches can happen without the internet or hackers in eastern Europe. A laptop on a car seat presents a cyber risk. Arkansas’ Personal Information Protection Act3 provides that a person or business that acquires or maintains computerized data that includes unencrypted personal information must notify any Arkansas resident of a “breach of the security of the system” if the personal information was, or was reasonably believed to have been, acquired by an unauthorized person. “Breach of the security of the system” simply means an unauthorized acquisition of computer data that compromises the security, confidentiality, or integrity of personal information. A laptop containing unencrypted personal information that leaves your car under a thief ’s arm meets that definition and triggers a notification requirement. And if the breach affects the personal information of more than 1,000 individuals, you must notify the Attorney General as well. Because a stolen laptop containing even one file of unencrypted personal information could present quite a problem, be sure to encrypt files that contain sensitive information.4
Stopping for a latte. Before examining the work environment at home, you should know that working in a public space—at a coffeeshop, for example—presents more risks than just sensitive material being seen (“shoulder surfed”) or overheard at the next table. All public Wi-Fi is notoriously dangerous. A bad actor seeming to be enjoying a coffee at the other end of the cafe or operating from an office building next door may have created a fake Wi-Fi network with a trustworthy-looking network name. “Manin-the-middle” attacks enable bad actors to intercept (and tamper with) data traffic from a victim’s laptop or mobile device. The best practice is to avoid public Wi-Fi and use your mobile network connection, directly, if possible, or as a wireless hot spot. Law offices are designed for doing legal work—homes are not. Before considering technical risks, compare your home environment to your office. In your office, visitor-traffic controls protect against individuals outside the attorney-client relationship seeing documents or overhearing confidential conversations. A home “office” can mean anything from a separate, locked room to one end of your family’s dining room table. Documents left in the open or phone conversations overheard in the next room may invite interest from family members. New Yorker cartoons depicting kids’ playground reenactments of overheard attorney-client conversations practically draw themselves. Consider creating reasonable physical safeguards at home—a filing cabinet, an offlimits room, or, where appropriate, a high shelf may suffice—and consider appropriate “administrative” controls—rules of conduct governing work spaces in the home. And you may want to invest in a low-cost, crosscut paper shredder. On the technical side, perform a quick, high-end inventory of the technology in the house—perhaps you have nothing more than a camera-equipped computer connected to the internet. Each additional device connected to the same network (e.g., smart speakers, video surveillance systems, smart appliances) increases the available cyberattack surface and requires appropriate mitigation.
Make sure all software and firmware on all connected devices is, and remains, up to date. Updates are designed to fix vulnerabilities from newly-discovered security threats. Where possible, configure devices to update automatically. Guard the internet connection and home network. Connectivity products such as routers are often configured to make them easy to use right out of the box. Factory-default settings are well-known or easily guessed by bad actors, and, if left unchanged, expose home networks to unwanted intrusion. So, change default user names and passwords. Install reputable antivirus programs and keep them updated. Programs that guard against viruses and similar threats look for known, defined patterns, or “signatures,” of malicious software. Because criminals constantly invent new malware bearing new signatures, configure antivirus software to automatically update its virus definitions. Most home routers have a network firewall built in, but check to see if it has been turned off by default. If the router has no firewall, a separate hardware firewall between the internet and router may be justified. Some internet service providers will help customers determine the most appropriate firewall settings for their particular environment. If your computer connects wirelessly to your home network, increase wireless security. Use the strongest encryption protocol available. The Wi-Fi Protected Access 3 (WPA3) Personal Advanced Encryption Standard (AES) and Temporary Key Integrity Protocol (TKIP) is currently the most secure router configuration available for home use. If the router is old and cannot encrypt to the WPA3 standard, an upgrade may be in order. Also, a network’s default name may give an attacker information about the router and its vulnerabilities, so change the network name to disguise your network and mask its vulnerabilities. If possible, disable the Wi-Fi protected setup (WPS) setting; it makes setting up Wi-Fi enabled devices easier, but its technical specifications make it easier for bad actors to guess personal identification numbers used in the setup process. Also, reduce the wireless signal strength where
Additional Resources Take time to educate yourself and your staff. Security awareness training goes a long way toward making users aware of common threats and putting them in the right mindset to defend themselves. The SANS Institute is a cooperative research and education organization. SANS is the largest provider of cybersecurity training and certification for government and commercial-institution professionals worldwide. https://www.sans.org/securityawareness-training/sanssecurity-awareness-work-homedeployment-kit The Cybersecurity and Infrastructure Security Agency (CISA) leads the national effort to protect and enhance the resilience of the nation’s physical and cyber infrastructure. This website provides cybersecurity resources and best practices for businesses, government agencies, and other organizations. https://us-cert.cisa.gov/resources The National Institute of Standards and Technology, Special Publication (NIST SP) - 800-46 Rev 2, Guide to Enterprise Telework, Remote Access, and Bring Your Own Device Security https://csrc.nist.gov/publications/ detail/sp/800-46/rev-2/final and ITL Bulletin March 2020, Security for Enterprise Telework, Remote Access, and Bring Your Own Device (BYOD) Solutions (nist.gov)
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possible and turn off the network when it is not in use, both of which reduce the attack surface. A word on Why Me? One common misconception is that criminals only want big fish—why mess with a small-town lawyer doing routine work? This idea presupposes that the bad actor is a human clicking around the internet looking for victims. But bad actors often deploy applications that automatically crawl the internet testing for technical vulnerabilities. Vulnerable systems, in turn, can be probed by tools that search for and retrieve files that are likely to contain valuable information, such as spreadsheet files containing numbers in a social security number format. Most cybercriminals do not care whether the files they steal come from a big fish. Assume bad actors want your files and will use any available tool to get them. Protect the computer and its contents. At the level of any computer used for work, in addition to controlling physical access to the computer, you should use adequate administrative controls (login credentials). Ideally, your firm should provide you with a “corporate” laptop that (1) is professionally configured with security settings that dovetail the firm’s network, (2) has a virtual private network (VPN) program installed, and (3) is used only for business. A computer shared by others in the household can present countless problems. (Consider the Texas lawyer who attended a court hearing by Zoom as a kitten.) If a shared computer cannot be configured for different users, other mitigation is necessary; something as simple as a browser’s history can reveal sensitive information. Use passphrases instead of passwords. Conventional advice has been that passwords should be (1) complex combinations of symbols, numbers, and upper/lower cases, (2) changed often, and (3) never written down. For years, that advice has been criticized for its impracticality. Recently, the National Institute of Standards and Technology agreed. In its SP-800-63-3 (Digital Identity Guidelines), NIST made three important 16
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recommendations: (1) focus on length, not complexity, (2) only change passwords if there is reason to think they have been compromised, and (3) use password managers wherever possible. Password length is most important. Long passwords are mathematically more challenging and take longer to guess. Therefore, a long sentence makes for a stronger passphrase than a short, complex password. Where possible, configure systems to time out after a low number of failed login attempts and to send an alert. To learn whether an email account has been compromised, check https://haveibeenpwned.com; if it has, change the passphrase. Arrive safely at your cyber destination. Many lawyers have transitioned to an all-cloud environment. Microsoft and Google, among others, have suites of cloud-based products to serve general office needs—word processors, email programs, and spreadsheets. Other companies provide specialized law-office-management products for case management, document handling, and marketing. Most of these cloud-based products provide tools to enhance security. The most valuable of these tools—one that should be standard practice for lawyers—is two-factor (or two-step) authentication. After inputting your identification and password, the cloud service sends the user a code by text or asks the user to input a code generated by an authenticator app on the user’s smart phone. Either one requires that the user have physical possession of the phone.5 Because cloud services are accessed via web browsers, browsers should be configured with the highest security settings possible, given the features and needs of the cloud service. Consider dedicating one browser to legal workloads only, using a different browser for all non-work-related web access. For those remotely accessing the office’s network, a virtual private network establishes an authenticated, secure, and encrypted connection between the user and the network. Except for those law firms big enough to have in-house network administrators, most law firms hire managed service providers to provide computer support. These professionals
should be used to help set up the VPN, as they should already be familiar with the firm’s external firewall settings, and misconfiguration of either the firewall or the VPN can give easy access to an attacker. Videoconferencing security matters. Time spent learning the features of each particular videoconferencing platform is time well spent. Begin, of course, by using the most up-to-date version of the videoconferencing application. The leading videoconferencing platforms offer tools and tips to enhance security—use them. Most platform providers’ primary focus is on ease of use, and heightened security requires a modicum of attention and effort. If you are on the receiving end of a videoconference invitation, do not open an invitation that you do not recognize, even if it looks authentic; place a call to the sender to verify its authenticity. If you are hosting a conference, take a multi-layered approach to security. Start by making each conferencing session unique by not reusing identification numbers or passwords and otherwise taking care in extending invitations to your conferences. Require a password to enter. When particularly sensitive matters will be discussed, consider sending the password via a separate communication channel. Enable “waiting room” features to control conference attendance. Lock the event once all members have joined. Manage screen- and file-sharing settings, disallowing .exe files. Unless recording has been discussed beforehand, disable recording. If a recording is made, consider filing the recording locally, rather than with the platform provider. (And note that some jurisdictions require consent from all parties to a recording.) Encrypt the local recording. Before sharing a screen, check to ensure sensitive information about the case or about other clients cannot be gleaned from any part of the shared screen. And, of course, before starting the conference, check to ensure sensitive information is not visible in any part of the shot, such as on desktops or whiteboards. Somewhere along the way, be sure not to make perfection the enemy of the good. Most work does not require the cone of silence or national-security-level security. Call on technical experts as needed, but
simple awareness, using the security features of up-to-date software and hardware, and situationally appropriate precautions will go a long way in protecting clients’ interests. Endnotes: 1. Ark. R. Prof'l Cond. R. 1.1, cmt. 8. 2. Ark. R. Prof'l Cond. R. 1.6(c). 3. Ark. Code Ann. §§ 4-110-101—108. 4. To encrypt an individual file or folder on Windows 10 systems: Right-click (or press and hold) a file or folder and select Properties, then Select the Advanced button and select the Encrypt contents to secure data check box, and then Select OK to close the Advanced Attributes window, select Apply, and then select OK. For computers running Mac OS (full-disk encryption): Use the Apple Menu to open System Preferences, then Select Security & Privacy, then Navigate to the FileVault tab and click on the lock on the bottom left. When you enter your password to unlock the setting, you will be able to select “Turn on FileVault.” You will be asked to create a recovery key in case you misplace your Mac’s password and you cannot access your data. All macOS and OS X, Yosemite or later, allows you to use an iCloud account as a backup method for unlocking your FileVault in case you ever forget your password. 5. Authentication is based on (1) what the user knows (such as a passphrase), (2) what the user has (such as a phone, fob, or other device), or (3) what the user is (as revealed in a scan of a fingerprint, iris, face, or the like). Two-factor authentication most often refers to a known password as the first factor and a code delivered to, or generated by, a physically-possessed device as the second factor. ■
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2021 Arkansas High School Mock Trial Competition The annual Arkansas High School Mock Trial Competition was held on March 6 and 20, 2021. As the legal profession adapted to the changing world, so did the competition. With the closure of many public spaces, the 2021 competition was held virtually using the Zoom platform. Eleven teams participated in this year’s competition. In the Championship Round, Springdale Har-Ber High School narrowly defeated Conway High THANK YOU TO THE School to become the Arkansas State VOLUNTEERS! Champion. Arkansas Supreme Court Chief Justice Dan Kemp presided over the Championship Round. Arkansas Adrienne Morris Griffis, Co-Chair Bar Association President Paul Keith, Anthony L. McMullen, Co-Chair Arkansas Bar Association PresidentMelanie Ann Beltran Elect Designee Joe Kolb, and Senior Beverly I. Brister Assistant Attorney General Jennifer Kelly Brown Merritt served as scoring judges. Har-Ber represented Arkansas at the Robert S. Coleman National High School Mock Trial Meagan Elizabeth Davis Championship, held virtually on Amy Freedman May 13-15, 2021, and achieved a 2-2 Sarah E. Greenwood record. Michael B. Heister This year’s state case was State of Johnathan D. Horton Arkansas v. Andie Martin. Martin, Lori D. Howard a semi-professional MMA fighter, Christopher M. Hussein was charged with second-degree Matthew C. Hutsell murder after Martin allegedly Adam Donner Jackson assaulted someone in a bar fight. The Top photo: Screenshot image of the debriefing Paul W. Keith prosecution’s theory was that Martin session following the regional championship Chief Justice Dan Kemp lost control after a championship round. Bottom two photos: the Har-Ber team Joe Kolb game. Martin pleaded self-defense. competing in the national competition. The case was authored by a group of Gabriel D. Mallard law students and mock trial alumni with the assistance of Mock Trial Subcommittee co-chair William C. Mann Anthony McMullen. The students involved were Abigail Hustead (University of Arkansas Class Richard Bryant Marshall of 2021), Nathan Johnson (UA-Little Rock Bowen School of Law Class of 2021), Olivia Moore Heather Renee Martin-Herron (Hendrix College Class of 2022), CJ Parrish (University of Central Arkansas Class of 2023), and Judge Mary Spencer McGowan Bennett Stuckey (UA-Little Rock Bowen School of Law Class of 2021). This was Arkansas’ first Jennifer Merritt original case in recent memory. Robert Minarcin The Mock Trial Subcommittee would like to thank all of the volunteers who helped make this Barrett Moore possible. Members make our competition special by serving on the Subcommittee, helping to Ashley Elizabeth Norman start programs at their local high schools, volunteering as attorney-coaches, and serving as judges Constance Brown Phillips for the competition. With the 2021 competition year complete, the Subcommittee has started Natalie Elizabeth Ramm planning for the 2022 competition year. Casey Nicole Richmond In addition, Little Rock will serve as host for the National High School Mock Trial Jordan Brown Tinsley Championship in 2023. The Arkansas Mock Trial Foundation, Inc. is tasked with fundraising and hosting this endeavor. If you are interested in serving on the steering committee or sponsoring James D. Tomlin the event, contact Foundation Board President Jordan Tinsley (jordan@tyattorney.com). Timothy F. Watson If you are interested in becoming a member of the Mock Trial Subcommittee or in Matthew D. Wells volunteering for the competition, contact co-chairs Anthony McMullen (anthonylmcmullen@ Nicole Marie Winters gmail.com) and Adrienne Griffis (agriffis@ddh.law). 18
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Vol. 56 No. 1/Spring 2021 The Arkansas Lawyer
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View of the Pandemic from the Technology Trenches By Timothy N. Holthoff
Timothy N. Holthoff is the Court Information Systems Division Director for the Administrative Office of the Courts 20
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It has been a year since the Arkansas Supreme Court issued its first statement on COVID-19. Friday, March 6, 2020, began like any other day in the Justice Building after a long week of in-person meetings. The day ended with the Chief Justice asking our courts to review continuity of operations plans and prepare for a pandemic. Less than two weeks later our courts were ending in-person proceedings. In other states, there were frantic attempts to purchase laptops, build infrastructure, and buy virtual private network (VPN) licenses; but in the Arkansas appellate courts and many of the State’s district and circuit courts, the judiciary was prepared for the pandemic. When we shifted to remote work, our biggest concern was the ability to adequately support the bench, the bar, and the public. What we have realized, though, is that the biggest challenge for the Court Information Systems Division of the Administrative Office of the Courts (AOC) has not been the remote work, or even supporting thousands of users, but has been staying connected as an organization and time-boxing our work. While it is advantageous for staff and courts to be able to time-shift some work, when working from home it is more difficult to disconnect. Naturally, we have concerns about work from home on networks that are less secure and devices that are less secure, but through user education and awareness, other enterprise security measures, and an amazing team of IT professionals, we are almost able to sleep at night—or we were until the recent major government intrusions came to light.1 Over the last decade our focus has been on enabling the courts to work from anywhere. We have done this by replacing desktops with laptops, creating a remote disaster recovery site, providing VPN connections so the laptops could connect securely to network resources, and deploying web-based case and jury management and efiling software. We have identified and built redundancies in our infrastructure for power and Internet connectivity, and we have invested in cybersecurity tools and our cybersecurity team to do the best we can to protect our court data. We have also made a concerted effort to take advantage of cloud computing opportunities such as Microsoft Office 365. Our transition to remote work could not have gone much better because we were prepared. In May 2019, Chief Justice Kemp sent a contingent from Arkansas to the National Summit on Pandemic Preparedness, held at the University of Nebraska Medical Center. For several years, the appellate courts and the AOC have been developing, testing, and refining their disaster recovery and continuity of operations plans. The Summit allowed us to validate our preparation. Our attendees confirmed that our focus on enabling remote work would be instrumental in continuing court operations during a pandemic. When we were notified that the Justice Building would be closing because of the
pandemic, in a conversation with the Chief Justice, I reassured him that IT had been preparing for that day for many years. Had it occurred even five or six years earlier, the impact on our courts would have been much more severe. Except for a few key staff routinely onsite, most of the work of the appellate courts has been conducted remotely since the pandemic began. Our preparedness was tested even further during our unprecedented winter weather during the week of February 14, 2021. With the Justice Building completely closed, both appellate courts issued their opinions with everyone working remotely. Remote hearings have been key to our courts’ ability to continue work. Videoconferencing was not new to us, but it was not routine in court proceedings. When the pandemic began, we had just started a pilot project with two circuit courts to conduct virtual hearings in dependency neglect cases. Our two-judge pilot project became a statewide Zoom rollout. Last year thousands of court hearings were conducted remotely using Zoom and the appellate courts conducted remote oral arguments
that were live-streamed to YouTube. One of the biggest impacts on our courts was a massive rollout of efiling to nearly one third of the counties. Early in the pandemic we were challenged with coming up with a way to speed up rollout of the system. The solution was to focus on subsequent filings. We were able to shorten configuration and training time because Saline County Circuit Court was willing to test this idea. Courts that have taken advantage of remote hearings and electronic filing have benefited most from remote work through the pandemic. By using the AOC-provided services, many of the courts could reduce the number of staff required at the courts and still be able to carry on much of the work of the courts at a near-normal pace. Court technology professionals are now pondering what changes will remain after the pandemic. Are we finally moving to the promised paperless courts? Are remote hearings going to remain? How might we better serve our judges, attorneys, clerks, court staff, justice agencies, and the public with modern technology? How might we better secure court data from foreign state
actors who seek to undermine our justice system? Endnote: 1. In December 2020, two major breaches suspected to be executed by Russian state actors came to light. FireEye, a major cybersecurity firm, revealed that its hacking tools had been compromised. While investigating its own breach, FireEye discovered that SolarWinds, a major provider of technology management and monitoring, had also been breached. Christopher Bing and Joseph Menn, U.S. cybersecurity firm FireEye discloses breach, theft of hacking tools, Reuters, available at https://www.reuters.com/article/us-fireeyecyber-idUSKBN28I31E (Dec. 8, 2020); William Turton and Kartikay Mehrotra, FireEye Discovered SolarWinds Breach While Probing Own Hack, Bloomberg, available at https://www.bloomberg.com/news/ articles/2020-12-15/fireeye-stumbledacross-solarwinds-breach-while-probingown-hack (Dec. 14, 2020). ■
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Vol. 56 No. 1/Spring 2021 The Arkansas Lawyer
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Taking the Bench Amid a Pandemic
By Judge Daniel Brock
"As we (hopefully) leave the virus behind over the next year, perhaps we’ll take with us a renewed sense of unity, civility, and grace toward one another. "
Judge Daniel Brock was sworn in as the Circuit Judge of the First Division in the 17th Judicial District on January 1, 2021.
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“No matter what happens, at least everything will go back to normal after today.” That’s what my wife told me on the primaries election day, March 3, 2020, while we awaited the results of our eight-month campaign for circuit judge. By all means, I was ready for normal. If you’ve ever been part of a campaign, you know it can be an intense marathon of daily sprints for months on end. It’s an incredibly rewarding experience, but you’re ready for the conclusion when it’s over. Mine was highlighted by the birth of our son at the end of January 2020—a mere five weeks prior to the election. To say the first quarter of 2020 was a whirlwind for us would be an understatement. As we all know, that whirlwind came crashing to a halt—and not in a way that brought about any sense of normalcy. Things have a way of taking time to travel to Arkansas. Compared to the coasts, we have typically been on the trailing end to receive new things, such as new music and styles, to name a couple. That kind of delay can also be insulating. Even when the first COVID-19 case was discovered in the U.S., it was not altogether clear whether it would make it to Arkansas or whether it would remain a coastal, big city problem. I remember being on a treadmill one night watching ESPN when it was announced that the NBA was suspending its season due to COVID-19. Major sporting leagues don’t whimsically cut off significant revenue streams. I knew in that moment that this virus would impact all of us—even in Arkansas. Within a couple of weeks after the March 3, 2020, election, COVID-19 had gripped the entire nation. But this article is not about the shutdown of 2020. It’s about my experience as a new judge taking the bench during the COVID-19 pandemic in January of 2021. I’m Daniel Brock, and I’m the circuit judge of the First Division in the 17th Judicial District. My docket consists of civil and probate cases in White County and civil and criminal cases in Prairie County. At 38 years old, I’m relatively young for a circuit judge. My private practice largely consisted of commercial civil litigation. I thoroughly enjoyed the practice of law. While I was comfortable there, being accustomed to the ebb and flow of my caseload, I was mindful that I likely did not grasp all the behind-the-scenes duties and responsibilities that go into keeping a court running smoothly. In my ideal scenario, I would have worked closely with the outgoing judge in the final months leading up to January 1st to get a feel for the day-to-day operations behind the bench. Unfortunately, new COVID-19 cases drastically increased in the fall and winter of 2020. As a result, any unnecessary close contact became impractical. Understandably, I did not spend significant time in chambers prior to taking office. Even so, my predecessor and his trial court administrator worked hard to leave the docket and administrative tasks in great condition for an efficient transition. Still, outfitting an office, hiring new staff, and
creating new processes and procedures is a formidable project for any new judge—and one you better figure out quickly. Lucky for me, my trial court administrator, Diana Snelson, and court reporter, Betsy Watson, are amazing people and were essential in getting our office up and running full speed so quickly. The Challenges By the time I took the bench in January, we were all aware of the operational hardships in our industry brought about by COVID-19. Social distancing, occupancy restrictions, mask mandates, and quarantine protocols are the obvious ones. Social distancing greatly affects how many attorneys, clients, and witnesses can be in a courtroom. Social distancing requirements lead to occupancy restrictions that oftentimes prohibit individuals from attending court unless they are essential to the case. Masks make it difficult to hear and clearly understand one another. Masks also affect the factfinder’s ability to weigh the credibility of witnesses because you cannot read their faces when providing testimony. Quarantine protocols triggered by close contact with an infected person can upend a hearing or trial at the last second with little to no notice. My courtroom is spacious, so we can accommodate and work around most of the challenges. But quarantine protocols very quickly proved to be the primary and unpredictable disruption to the docket. Within the first week of taking the bench, I managed to come into close contact with someone (not in the courthouse) who soon after tested positive. Suddenly, all our efforts to plan around COVID-19 restrictions to conduct safe in-person hearings to begin my term were for naught. I had to hole up in a room at home for at least the next working week. We quickly contacted the attorneys and converted all the scheduled hearings to Zoom videoconferences. Each of the affected attorneys graciously worked to accommodate the change in schedule. As a result of the bar being accustomed to virtual court over the previous year, the last-minute transition was seamless. We missed no hearings on the docket due to my physical absence. I did not contract the virus from my
close encounter, so I returned to the office soon thereafter. But it did not take long for quarantine protocols to grab the spotlight again. I have children in daycare. If there is a close encounter at daycare, your kids must quarantine at home. It is not easy to find folks who want to watch potentially exposed kids. Foreseeing the inevitable, my TCA and I converted all of our operations to run remotely. That way, if either or both of us must be off-site, we can have court, review pending motions, sign and enter orders, communicate with attorneys, and continue moving the docket forward. It should be noted that at the time of this writing, White County is not an efiling county. Naturally, that procedure has been tested several times and has worked out great. Many judicial offices are set up this way now out of necessity. But just a year ago, it was unheard of. While we managed to work around a pandemic, I must admit we could not conquer the ice and snowstorms of February 2021. Although we were available and working remotely, court appearances were halted for approximately 10 working days. We can learn and adopt new technology, but we Arkansans are still not winterweather savvy. The Silver Linings Our industry is notoriously sluggish to adopt new modes of operating. And we’re proud of it, as though we are the last line of defense for a lost way of life. The protectors of . . . WordPerfect? But seriously, in some ways we truly are preserving principles that are otherwise slipping away in our society, such as decorum, etiquette, and civility. We’ve also avoided taking on more efficient ways of conducting business because that’s not the way we’ve always done it. Then enters a pandemic putting a dramatic stop to nearly all of our standard operating procedures. In a matter of weeks, courts began using videoconferencing to give life to their dockets again. Attorneys also turned to videoconferencing to consult with clients and conduct depositions. Suddenly, being a virtual practitioner wasn’t viewed as a newage lawyer’s aspiration. It was everyone’s reality. Early on, I decided that my big-picture judicial philosophy would be one of
service. Service to the law without my personal leanings. Service to attorneys through diligence, accessibility, patience, and grace. Service to litigants by being present, fair, and receptive. No doubt, this is influenced by my faith and the condition of our country throughout the past year. If COVID-19 has done anything, it has exposed us to a collective sense of vulnerability. Some attribute this to the emergence of an invisible virus that does not discriminate against whom it negatively affects. Others blame their vulnerability on the perceived emergence of an overreaching government exerting undue control. There are various other rationales, but the overarching, unifying effect is a distinct feeling of lack of control. We can directly relate to one another, not just through our collective hardships but out of a shared sense of perseverance. That means we also have an opportunity to extend compassion and empathy for those around us in a way that may not have been as accessible before. Moving Forward At the time this article is being completed, new COVID-19 cases have been on a steady decline. Multiple vaccines have been approved and distributed. The Governor recently announced that the mask mandate ended. We’re beginning to see what we hope is a light at the end of the tunnel. As we (hopefully) leave the virus behind over the next year, perhaps we’ll take with us a renewed sense of unity, civility, and grace toward one another. ■
Vol. 56 No. 1/Spring 2021 The Arkansas Lawyer
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ArkBar News
ArkBar Executive Director's Report April Board of Trustees Meeting By Karen K. Hutchins
Karen K. Hutchins, J.D., CAE, is the Executive Director of the Arkansas Bar Association The Board of Trustees met via Zoom April 23rd at noon. The Board meeting was chaired by President Paul Keith. Secretary Glen Hoggard declared a quorum was present. Audit Chair Brant Perkins presented the Audit Report for 2019-20, which reflected no exceptions. Legislation Committee Chair Lynn Foster summarized for the Board the results of the Legislation Committee and the success of the Association’s Legislative Package. Thanks to the dedicated work of the legislation committee and Lobbyist Jay Robbins, four of five bills were enacted into law. The four that passed included: Uniform Limited Liability Company Act, Uniform Fiduciary Income and Principal Act, Uniform Civil Remedies for Unauthorized Disclosure of Intimate Images Act and Power of Attorney Technical Correction. The fifth bill advocated for transparency in NonCandidate Expenditure contributions in Arkansas Appellate Judicial Elections. Annual Meeting Chairs Jamie Jones and Sarah Jewell presented programming and social event highlights for the upcoming 123rd Annual Meeting. The virtual venue has allowed an extensive lineup of nationally-recognized plenary speakers, such as Isaac Wright, Jr., Laura Wasser, Hilarie Bass, and our own Stacy Leeds, and world-renowned entertainment from the Broadway show Hamilton. Mock Trial Co-Chair Anthony McMullen provided the outcome of the first virtual State Mock Trial Competition. 24
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The committee rose to the challenge of adjusting the typically-live event to a virtual competition. The winner was Springdale Har-Ber High School who represented Arkansas at the virtual National Mock Trial competition. Treasurer Joe Kolb presented the current financial update and recognized the success of efforts of all trustees, members and staff in their support and sponsorship of virtual meetings and events to assist in driving our year-to-date financials in a positive trend. He also presented the 2021-22 budget for the Board’s approval. The budget included several new member benefits to help expand and engage members in the upcoming year. These new opportunities include: (See membership flyer on page 4.) • • • •
Six (6) FREE On-Demand CLE hours on CLE CENTRAL Discounts on Section-sponsored CLE with Section dues Case Summaries via Podcasts Creation of an Affiliate membership for Paralegals supervised by attorney members
Young Lawyer Section Chair Chris Hussein reported the creation of a joint committee that includes members of the Young Lawyers Section and the Arkansas Bar Commission on Diversity and Inclusion. This committee developed scholarships for law students at both Arkansas law schools focused on diversity and inclusion. Four scholarships for $2,500 each will be awarded at the YLS awards ceremony at Annual Meeting to the selected recipients. At the request of many member attorneys and judges, President Paul Keith recommended the creation of a new Appellate Law Section. The Board approved the new section. Members can join sections as part of the 2021-2022 membership renewal process.
Immediate Past President Brian Rosenthal reminded the Board of Trustees to save the date for the first Arkansas Bar Association Hall of Fame in Little Rock on September 22, 2022. The Public Service Academy will select its second class for 2021-2022. The Public Service Academy dates and application information will be announced during the Annual Meeting awards ceremony. The Sponsorship Committee reported on its work to reach out and connect event sponsors to our association’s many events including the Mid-Year and Annual Meetings. This important work is vital to the Association success. Thank you! The final Board of Trustees meeting for 2020-2021 will be the lead-off event for the 123rd Annual Meeting via Zoom at 8:45 a.m. on Wednesday, June 15. ■
New Appellate Law Section The Appellate Law Section involves those who practice in the areas of civil or criminal appeals. The section will advance the appellate practice by connecting these practitioners to provide discussion and education on topics such as governing rules and case law, together with practical advice. Sign up with your membership renewal for the 2021-2022 bar year at www.arkbar.com.
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Reflections on the Year 2020 and 30 Years on the Circuit Bench By Judge Mary Spencer McGowan
T Photo of Judges David Goodson, McGowan, Smith and Ralph Wilson taken during their first year on the bench at a judicial conference in Maine.
Retired Circuit Judge Mary Spencer McGowan served 30 years as a circuit judge in the Sixth Judicial Circuit (Pulaski and Perry Counties) and retired on December 31, 2020. 26
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he halls of the Pulaski County Courthouse were eerily quiet and the lights in most of the 14 courtrooms were turned off. What had been a year to look forward to—the last year on the bench for six of the 17 circuit judges who were retiring at the end of 2020—turned out to be the worst year in many respects. All but two of us were “aged out” with the requirement that if past the age of 70 years when one ran for re-election, a forfeiture of all retirement benefits through the Arkansas Judicial Retirement System would occur. The year of 2020 began with planning the retirement parties for our “Gang of Six.” Our service on the trial bench had been lengthy: Judges Vann Smith and Joyce Williams Warren had served for some 32 years each; Judges Chris Piazza and I had served for 30 years; Judge Wiley Branton, Jr., had served for 28 years; and Judge Dick Moore had served for 18 years. That combined total of 170 years of judicial experience was over as of January 1, 2021. In 2020, I had a large number of civil jury trials scheduled. I tried a civil jury trial in March of 2020 shortly before County Judge Barry Hyde closed the courthouse after the first cases of coronavirus were reported in Arkansas. The county judge, pursuant to his power under the Arkansas Constitution, controls the county courthouse and other county buildings. At that time, I realized that there was no way to conduct jury orientation for our new jury panel in April as some 750 potential jurors would be summoned. With that came the realization that we would not have any more jury trials in calendar year 2020, and I had presided over my last jury trial as a circuit judge in the Sixth Judicial Circuit in March 2020. What I did not realize, at the time, was how the closure of the courthouse and the suspension of in-person hearings would affect all of us. Efforts were made by several judges to continue having in-person hearings. However, with the rising number of people who had contracted COVID-19 and the number of deaths caused by the coronavirus, the more prudent choice was to conduct trials and hearings by Zoom. Problems with the technology abounded. In one case, as an attorney was making his argument for summary judgment, his image “froze” on the screen and there was no audio. When it resumed, I asked if he would repeat his argument when the technology failed and he responded: “I have forgotten it.” For hearings involving pro se litigants, there were even more difficulties in making sure they had internet connections and that they were working. With hearings conducted on Zoom, new issues arose. For example, how to invoke the Rule and be able to know
Judge Wiley Branton, Jr.
Judge Mary Spencer McGowan
Judge Richard Moore
Judge Chris Piazza
Judge Vann Smith
Judge Joyce Williams Warren
"The year of 2020 began with planning the retirement parties for our 'Gang of Six.' Our service on the trial bench had been lengthy: Judges Vann Smith and Joyce Williams Warren had served for some 32 years each; Judges Chris Piazza and I had served for 30 years; Judge Wiley Branton, Jr., had served for 28 years; and Judge Dick Moore had served for 18 years. That combined total of 170 years of judicial experience was over as of January 1, 2021." the witnesses could not hear each other or that they would still be available for their testimony during the hearing. In reflecting on how trials had been conducted pre-pandemic, witnesses could be admonished not to disclose what they had said or what questions were asked, and the Rule could be observed. This was impossible to enforce on Zoom. As the year progressed, County Judge Hyde continued to issue executive orders keeping the Pulaski County Courthouse closed due to the rising numbers of people inflicted by the virus and as the deaths caused by the virus continued to rise. These events caused a complete disruption to jury trials and, in some cases, bench trials. In past years, some technology had come into play, e.g. regarding the testimony by expert witnesses by Skype, but at no time, at least during my 46 years in the practice of law in Arkansas, had there been such a disruption in moving cases through the system to completion. This included the time period in the early 1990s when the courts moved out of the Pulaski County Courthouse for the renovation of the 14 circuit courts located there. However, the ability to proceed with Zoom meant that the disruption was not complete. By trying more cases electronically, judges, as well as attorneys, became more adept with the technology. Had the courts not had the ability to utilize the technology available at the time, the entire justice system would have ground to a halt.
In the various state judicial circuits, different approaches were taken in order to continue having trials—both jury and bench. However, it is safe to say all circuits saw their scheduling disrupted and a delay in any activity. Many discussions have taken place as to the long-term effects on our judicial system. There will, no doubt, be many articles and studies done over the effects of trial delay on the criminal justice system as well as the other four subject matter jurisdictions, i.e. civil, domestic relations, probate, and juvenile. For a believer in jury trials, I can only hope this pandemic is not the death of the jury system. Forty-six years ago, when I served as a law clerk for a U.S. district judge whose jurisdiction was both the Eastern and Western Districts of Arkansas, jury trials were a constant occurrence. Those were the days of major jury trials in Arkansas involving the Civil Rights Act and other federal issues. Throughout my legal career, the number of jury trials began to slow down. Now they are few and far between. Prior to the virus, the number of cases tried to a jury had dropped precipitously. Reasons given included the cost of jury trials to the litigants and the uncertainty of the jury verdict. It had become very difficult for an attorney to advise his or her client as to what the outcome of the trial could be. Expert testimony became very expensive, not only for trials but in discovery. The increased
usage of alternative resolution of cases also contributed to fewer jury trials. I fear that this pandemic may further drive a coffin nail into trials by jury. If so, we will have lost a part of our legal system which has been the envy of other countries far and wide. I am glad that I have had the opportunity to see some of the best trial lawyers—both plaintiff and defense—in trials. Over the years, I have observed that juries usually reach the “correct” verdict, or at least the same verdict I would have reached had it been a bench trial. With the creation of the vaccines to combat this virus, I can only hope that by the end of 2021 some normalcy will be returned to the courthouse. Though this was the largest group of judges retiring, not only in Pulaski County, but throughout the state, it reflects the age category more than anything else. The replacements for these six in Pulaski County are aged primarily in their mid-tolate 40s. My wish for them and all others in the practice of law and administering justice, is this too shall pass. I am grateful for having the multitude of memories of my 30 years on the bench, including my last which proved to be the most difficult and strangest of them all. I am hopeful that the courthouse will return to the sounds of the public: lawyers, witnesses, law enforcement, clerks, courts and staff, and all others as they enter its portals. There is work to be done and justice to be served. ■
Vol. 56 No. 1/Spring 2021 The Arkansas Lawyer
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Defending During the Pandemic How COVID-19 Has Impacted the Practice of Criminal Law By Colleen Barnhill Kordsmeier
Introduction As a public defender practicing in state criminal court in Pulaski County, before the onset of the COVID-19 pandemic I spent a lot of time at the courthouse. I was usually there four days a week, and my day-to-day work involved meeting with inmates in lockup beneath the courthouse before the start of the docket call; speaking with out-of-custody clients and their families outside the courtroom; strategizing with colleagues at the counsel table; and negotiating the details of plea agreements between clients and prosecutors. When court was not in session, my work routine involved a lot of desk work, but it also required visiting a client at the jail; or meeting with and interviewing a witness; or getting out into the community and street investigating to get ready for a trial. These in-person interactions at the heart of my job came to an abrupt halt with the onset of the COVID-19 pandemic in March of 2020. By executive order of the county judge, the Pulaski County Courthouse, along with the Prosecutor’s Office and the Pulaski County Administration building (which houses the public defender offices), closed to the public on March 13, 2020.1 At the same time, the Arkansas Supreme Court suspended nearly all in-person judicial proceedings.2 Nearly one year later, these closures largely remain in place, and the practice of criminal law has a much different look in Pulaski County. This article addresses two important ways the COVID-19 pandemic has affected the practice of criminal law in state court. First, judicial proceedings transitioned to an online virtual format, enabling courts to take some meaningful action on cases. Second, the suspension of jury trials has led to a marked increase in the number of open criminal cases.
Colleen Barnhill Kordsmeier has practiced as a public defender in the Sixth Judicial District of Arkansas since 2011. 28
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Virtual Court: An Imperfect Solution to the Courthouse Closure When the courthouse first closed to the public, all court proceedings also halted, and no action was being taken on any cases. However, fairly quickly many courts transitioned to holding criminal proceedings virtually, and the videoconferencing platform of choice for most courts was Zoom. The Zoom solution presented clear benefits to courts in desperate need to get their dockets moving. The Zoom platform allows the judge, court staff, prosecutors, defense attorneys, defendants, the jail, witnesses, and the general public to appear “in court” by video remotely, from each individual’s separate location, and proceed with addressing criminal cases as though we were in the actual physical courtroom, with all hearings being officially recorded by the court reporter. In this way, the court is able to conduct a range of important business, including plea and arraignments, bond hearings, guilty plea colloquies, and sentencing hearings.
Holding court over Zoom is far from ideal. First-time participants often are not familiar with the muting/unmuting function, nor are they certain how to activate the video feature. Parties unintentionally start talking at the same time. Defendants do not always abide by courtroom decorum, and often appear shirtless, laying down in bed, or smoking cigarettes. And a poor internet connection can result in a participant getting kicked out of the session (on one occasion when a judge himself was kicked out of a session, a defendant remarked, “the judge is failing to appear!”). Aside from the small technical hiccups, Zoom court also has significant practical limitations. First and foremost, jury trials cannot take place over Zoom. While criminal defendants are constitutionally guaranteed the right to a speedy trial, the state Supreme Court has already asserted that any time delay caused by the public health emergency can be excluded from the one-year calculation.3 Because the postponement of jury trials will result in persons unable to post bond remaining in jail for longer periods of time, the Supreme Court has encouraged judges to readdress bond in light of this change in circumstance. For persons not in custody, unresolved pending felony charges can limit their employment and housing opportunities. Another limitation of remote Zoom court is that it is not as accessible to the general public as traditional in-person court. While it is true that anyone can call the court’s chambers to get the Zoom log-in information, not everyone has access to the internet, and if they do, they may struggle with the same technical issues described earlier. Logging into Zoom court is just not as easy as going to the courthouse to observe and participate in the judicial process. Zoom court also limits attorney advocacy. Previously, in open, in-person court, if a client had a question or concern during a hearing, he or she could discreetly and quietly alert his or her attorney. But in virtual court, the attorney has logged in from his or her office, and the client has logged in from a geographically separate location. During the session, everyone can hear what every unmuted person is saying,
and everything any unmuted person says is recorded. Nothing is confidential, and a client’s concerns are aired to everyone. The problem is two-fold: a client may unknowingly disclose confidential information to the court; or a client, aware of the public setting, may refrain from sharing helpful information to his or her attorney. The Growing Backlog of Cases When the pandemic first shut down the courthouse and work-from-home policies were initially put in place, I hoped that, by spending less time in the courtroom, I would be able to take a deeper dive into some of my more complex cases. But as it became clear that virtual court would be the way of doing business for a long time, that hope was quickly dashed by the growing volume of cases I was having to manage. The last time I counted, I was representing over 200 clients, and many of these clients have more than one open case. During the pandemic, fewer cases are being resolved by a negotiated plea agreement, and more cases are being set off for a future jury trial date. In general, a criminal defendant will receive the best offer from the State when his or her case is very close to going to trial. This is the time when both sides are most motivated to work out a deal: for the defendant, to avoid the risk of receiving a lengthier sentence if found guilty by a jury panel; and for the State, to avoid the timeconsuming work of preparing for all of the stages of a jury trial. However, without the prospect of a jury trial taking place any time in the near future, most criminal defendants have little incentive to plead guilty to felony charges. In my experience during the pandemic, clients are only willing to plead guilty in the following limited scenarios: 1) a felony charge is being reduced to a misdemeanor; 2) the client accepts a probation sentence to get out of jail or to avoid further postponing the case; 3) the client is already serving prison time for a separate offense, and the State is offering concurrent time on the new criminal case. Even in non-pandemic times, the most difficult cases to resolve are often the ones in which the State is seeking a lengthy prison sentence. During the pandemic, defense
attorneys and criminal defendants have been even more reluctant to resolve a case with a sentence to the Arkansas Department of Corrections (ADC). The spread of the coronavirus in Arkansas’ prisons has been especially horrific.4 The week before Christmas, the Arkansas Democrat Gazette reported that four of every seven prisoners in ADC have tested positive for the virus.5 Because of the very real danger that a client could contract a deadly disease in ADC, fewer cases have been resolved by an agreedupon prison term. Conclusion Nearly one year after the initial closure of the Pulaski County courthouse, my work week retains very little semblance to my routine a year ago. The transition to virtual court and the delay in jury trials are two of the most consequential effects the COVID-19 pandemic has had on the practice of criminal law. With the development and distribution of vaccines, the expectation is that courthouses will reopen to the public later this spring. Hopefully then, the in-person interactions that make the work of a public defender so rewarding can begin again. And we can get back down to the business of getting the best possible outcomes for our clients. Endnotes: 1. In the Matter of Pulaski County’s Continuing Response to COVID-19 Public Health Emergency, Order No. 2020-336 (December 31, 2020) (referencing and incorporating all preceding executive orders concerning COVID-19). 2. In Re Response to the COVID-19 Pandemic, 2020 Ark. 116. 3. Id. (citing Ark. R. Crim. P. 28.3(h)). 4. See Rachel Aviv, Punishment by Pandemic, The New Yorker, June 15, 2020 (documenting the spread of COVID-19 at the Cummins Unit in Lincoln County, Arkansas). 5. Beth Schwartzapfel, Katie Park, and Andrew DeMillo, Covid surges behind Bars: 1 in 5 prisoners infected, Arkansas Democrat Gazette, December 19, 2020. At the time of publication, this was the second-highest prison infection rate in the country. ■
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License to Ill: Implementing COVID-19 Vaccination Policies in the Workplace
By Alexander D. Clark
W
ith at least three COVID-19 vaccinations approved by the Food and Drug Administration (FDA) for emergency use authorization, employers—which are required by the Occupational Safety and Health Act’s (OSHA) general duty clause to provide a safe workplace free from recognized hazards1—are naturally exploring the development and implementation of workplace vaccination policies. As the country inches closer to mass proliferation of vaccine availability, now is an apt time to assess the legal and practical issues and concerns attendant to enacting employee vaccination policies. The Equal Employment Opportunity Commission’s (EEOC) December guidance referred to and explained a covered employer’s2 obligations should it require employees to receive vaccinations, including accommodation requirements applicable to employees who have disabilities or sincerely held religious beliefs that preclude them from receiving the vaccination.3 In addition to EEOC guidance, covered employers should fully consider all applicable statutory and regulatory frameworks, as well as extralegal implications associated with the implementation of a vaccination policy. The following is a synopsis of the issues and concerns covered employers may want to evaluate prior to effectuating an employee vaccination policy. [Please note, at the time this article was written, the Arkansas General Assembly is considering a bill that would prohibit mandatory vaccine policies. Should that bill become law, employers should contact counsel to determine next steps.] I. The Americans With Disabilities Act and Title VII of the Civil Rights Act
Alexander D. Clark is an Associate at Cross, Gunter, Witherspoon, & Galchus, P.C. His areas of practice with the Firm include civil litigation, employment/management, and wage and hour law. 30
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A. Accommodating Employees with Disabilities While medical examinations are generally prohibited by the Americans with Disabilities Act (ADA) unless they are “job-related and consistent with business necessity,”4 the EEOC’s guidance clarified that a COVID-19 vaccination itself is not a prohibited medical examination.5 Therefore, a covered employer does not need to support its decision to require a COVID-19 vaccination with a determination that it is “job-related and consistent with business necessity.” However, the process of administering the vaccination can still implicate the ADA
"Employers should assess their workforce and their business operations to determine the appropriate approach to vaccinations for their employees while complying with applicable legal frameworks."
as well as concerns under Title VII of the Civil Rights Act of 1964 (Title VII).6 In particular, if an individual cannot be vaccinated due to a disability or requests a religious exemption, the covered employer must determine its responsibility to accommodate the unvaccinated employee. Under the ADA, the covered employer must consider whether excepting the disabled employee from the vaccination policy would cause a direct threat to the workplace.7 In making this determination, covered employers should conduct an individualized assessment of four “direct threat” factors: (1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that the potential harm will occur; and (4) the imminence of the potential harm.8 According to EEOC guidance, any “conclusion that there is a direct threat would include a determination that an unvaccinated individual will expose others to the virus at the worksite.”9 Thus, if physical distancing is a natural concomitant of an employee’s job duties, it would be difficult for the covered employer to establish that his or her inability to receive the vaccine poses a “direct threat” to the other employees in the workplace. However, even if a covered employer concludes that the unvaccinated employee poses a direct threat
at the workplace, the covered employer still cannot take any employment action, including excluding the disabled employee from the workplace, unless there is no way to provide a reasonable accommodation that would eliminate or reduce the risk of the unvaccinated employee exposing coworkers to the virus.10 The ADA requires covered employers to make reasonable accommodations to the known physical or mental limitations of an otherwise qualified employee or applicant with a disability, unless the covered employer can demonstrate that the accommodation would impose an undue hardship11 on its business.12 For example, the covered employer may consider whether it can reasonably institute physical distancing and/or mask-wearing or personal protective equipment (PPE) requirements that reduce the risk of COVID-19 transmission while allowing the employee to physically return or remain at work. If the risk cannot be reduced to an acceptable level, the covered employer may exclude the employee from the workplace but should still consider if it can accommodate the employee by, for instance, allowing the employee to work remotely or take leave, if eligible, under the Families First Coronavirus Response Act (FFCRA)13 and subsequent federal legislation, the Family and Medical Leave
Act (FMLA), or the employer’s policies.14 Covered employers should engage in a flexible, interactive process to identify reasonable accommodation options that do not constitute an undue hardship on the employer.15 The prevalence in the workplace of employees who already have received COVID-19 vaccinations and the amount of contact with others, whose vaccination status could be unknown, may impact the employer’s undue hardship consideration.16 B. Accommodating Employees’ Sincerely Held Religious Beliefs Under Title VII, covered employers must provide a reasonable accommodation if an employee’s sincerely held religious belief, practice, or observance prevents him or her from receiving the vaccination, unless doing so would present an undue hardship.17 In the context of Title VII, an “undue hardship”—which is a lower standard than the ADA’s undue burden standard—requires an employer to show that the proposed accommodation would cause more than a de minimus cost or burden on the operations of the employer’s business.18 Factors relevant in assessing whether a religious accommodation poses an undue hardship on an employer include the type of workplace, the nature of the employee’s duties, the identifiable cost of
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the accommodation in relation to the size and operating cost of the employer, and the number of employees who will need an accommodation. The employer may also consider non-monetary factors, such as diminishing efficiency in other jobs, infringing on other employees’ job rights or benefits, impairing workplace safety, or causing co-workers to carry a larger share of potentially hazardous work.19 While examples of potential religious accommodations are generally similar to ADA accommodations, accommodations under the distinct laws should be assessed independently due to Title VII’s less stringent standard. Generally, covered employers should assume that an employee’s request for a religious accommodation is based on a sincerely held religious belief because the definition of “religion” is broad and protects beliefs, practices, and observances with which the employer may not be familiar.20 If, however, an employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice, or observance, it may request additional supporting information from the employee.21 C. Temporary Exceptions for Pregnant Employees and Nursing Mothers Similarly, covered employers should consider exceptions for pregnant employees, as medical complications related to pregnancy could trigger discrimination concerns under the ADA. While pregnancy itself is not a “disability” under the ADA, pregnancy-related medical conditions may be.22 If a pregnant employee declines or refuses a vaccine due to a pregnancy-related medical condition, covered employers should determine whether the employee is a “direct threat” and, if so, engage in the interactive process to ascertain whether the unvaccinated pregnant employee can be reasonably accommodated.23 Many employers that are implementing mandatory vaccine policies are providing exceptions for pregnant employees and nursing mothers. These exemptions are temporary, however, and once those employees are no longer pregnant or nursing, their period of exemption ends.
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II. Administration of Vaccination Policies As noted above, while the vaccination itself is not an ADA-prohibited medical examination,24 pre-vaccination medical screening questions could evoke ADA concerns. The ADA prohibits covered employers from making “disability-related” inquiries that are not “job-related and consistent with business necessity.”25 Because pre-vaccination medical screening questions are likely to elicit information about an employee’s disability, covered employers administering vaccinations directly or contracting with third parties to administer vaccinations should ensure that they are complying with this standard.26 The EEOC sanctioned two vaccination administration structures that avoid prescreening inquiries and, thereby, invocation of the ADA: (1) voluntary vaccinations; and (2) vaccinations administered by a non-employer-related third party.27 First, if employers offer vaccinations on a voluntary basis, answering the pre-screening questions would likewise be voluntary,28 which is permitted by the ADA without assessing job-relatedness or business necessity.29 If an employee elects not to answer prescreening questions, the employer may decline to administer the vaccine but cannot retaliate against, intimidate, or threaten the employer for refusing to answer the questions.30 Second, the ADA is not implicated if an employee receives the vaccination from a non-affiliated third party, such as a pharmacy or health care provider, because the employer is not making the pre-screening queries.31 Relatedly, the EEOC’s guidance clearly states that requiring an employee to provide proof of a COVID-19 vaccination is not a disabilityrelated inquiry under the ADA.32 Therefore, under the above guidelines, an employer may implement a mandatory vaccination policy without implicating the ADA by requiring employees to provide proof of vaccination. However, covered employers should avoid asking follow-up questions and should advise employees not to provide other medical information when providing proof of vaccination to eschew disclosure of disability-related information.33 Asking employees why they did not provide proof of vaccination could precipitate applicability of the ADA and should only be done if the
inquiry is “job-related and consistent with business necessity,” or, in other words, if the unvaccinated employee would pose a direct threat to the health of co-workers by exposing them to the virus.34 If an employer chooses to administer COVID-19 vaccinations to its employees or contracts with a third party to do so, whether mandatory or voluntary, it must ensure that the medical information it obtains in the pre-screening process is collected and maintained on separate forms and in separate medical files that it treats as confidential medical records.35 A. Workers’ Compensation Coverage for Complications Stemming from Vaccination In Arkansas, workers’ compensation insurance pays temporary or permanent disability benefits and medical expenses resulting from an injury out of and in the course of employment.36 If an employer implements a mandatory vaccination policy and employees receive it on compensable work time, employee medical complications resulting from the vaccinations could very well result in workers’ compensation claims because it is received during the scope of employment. Employers that plan on requiring employee vaccinations should contact their workers’ compensation insurance carriers and inquire about coverage. By contrast, purely voluntary vaccination policies will likely not be covered by workers’ compensation insurance as the administering of the vaccine would not occur in the course of employment. Employers that incentivize or encourage employees to receive vaccinations present a more ambiguous coverage issue and would likely depend on the specific factual circumstances surrounding the incentives and the benefit received by the employer from employees’ vaccinations. B. Incentive-Based and Mandatory Vaccination Policies: Wage and Hour Consequences and Other Considerations On the topic of incentive-based vaccination policies, employers should consider applicable wage and hour laws and requirements when incentivizing employee vaccinations through means such as cash “bonuses.” Specifically, such payments could
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be regarded as nondiscretionary bonuses under the Fair Labor Standards Act (FLSA), which should be included in an employee’s regular rate of pay.37 An employee’s regular rate of pay is used to calculate his or her overtime compensation.38 Thus, employers should consider both the actual cost of additional overtime pay for non-exempt employees during the workweek in which the “bonus” is paid and the administrative costs associated with payroll recalculating overtime payments. This small risk stemming from an employer’s wage treatment of an individual’s vaccination “bonus” is augmented when an employer uniformly institutes vaccination “bonuses” across the workforce, creating distinct potential for a collective action lawsuit39 against the employer for unpaid overtime. The FLSA also requires employers to pay employees for expenses they incur on their employer’s behalf, if such expenses would effectively reduce the employee’s wages by reducing his or her compensation below minimum wage or cutting into overtime compensation.40 Therefore, employers that mandate or incentivize employee vaccinations should consider compensating employees for the time spent getting vaccinated and reimbursing them for costs incurred during the process, such as transportation expenses or vaccination costs (if it is not freely administered and/or covered by insurance). Employers must also be careful with electing to offer incentives to employees in order to obtain the vaccine. While this may be seen as a more middle-of-the-road option, it is not without legal risk. Prior to implementing an incentive program, employers should consider whether the incentives would lead their programs to be considered as part of a wellness program under the ADA and HIPAA. Moreover, should an employee not be able to take the vaccine due to an underlying health condition, the ADA requirements are triggered. An employer in turn may be required to provide the incentive to those who cannot take the vaccine as a result of an underlying health condition. Likewise, Title VII’s analysis set forth above would also apply to incentives offered to employees. Counsel should be consulted prior to developing these incentive programs to 34
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make sure that good intentions do not leave employers with unintended legal trouble. C. Taking Adverse Action Against Employees for Protesting Vaccinations Could Implicate the National Labor Relations Act Section 7 of the National Labor Relations Act guarantees employees “the right to selforganization, to form, join, or assist labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”41 Therefore, if employees are collectively discussing or protesting a mandatory vaccination policy, employers should exercise caution before taking any adverse action against the employees, as it could result in an unfair labor practice charge against the employer.42 III. Balancing Cultural Resistance to Vaccination in Implementing a LegallyCompliant Vaccination Policy In developing and implementing workplace vaccination policies, many employers will face both legal and nonlegal challenges, such as resistance to receiving the vaccination. Employers should assess their workforce and their business operations to determine the appropriate approach to vaccinations for their employees while complying with applicable legal frameworks. For instance, employers may consider whether a mandatory policy is necessary and consistent with business needs, taking into account measures already in place, such as social distancing, masking, working remotely, and enhanced cleaning. The frequency with which employees interact with customers and whether those customers (if employers) have mandatory vaccination policies may also be relevant in determining a policy that balances legal compliance and practical implementation concerns. Likewise, employers implementing a mandatory policy may need to be prepared to lose some of their workforce. Ultimately, the appropriate vaccination policy will be the result of an individualized assessment by the employer of personnel buy-in combined with evaluating legal risk and compliance with the assistance of counsel.
Endnotes: The author would like to thank Chris Musteen, law clerk, who assisted with the article. 1. 29 U.S.C. § 654(a)(1). 2. For purposes of this article, covered employers are those with 15 or more employees for ADA and Title VII purposes and nine or more employees pursuant to the Arkansas Civil Rights Act. 3. What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, U.S. Equal Emp. Opportunity Comm'n, K.1, K.5, K.6 (Dec. 16, 2020), available at https://www.eeoc.gov/ wysk/what-you-should-know-about-covid19-and-ada-rehabilitation-act-and-other-eeolaws, hereinafter “What You Should Know.” 4. 29 C.F.R. § 1630.14(c). 5. What You Should Know, supra, at K.1, K.5, K.6. 6. Id. at K.5, K.6. 7. Id. at K.5. 8. 29 C.F.R. § 1630.2(r). 9. What You Should Know, supra, at K.5. 10. Id. 11. 29 C.F.R. § 1630.2(p) (undue hardship means significant difficulty or expense and focuses on the resources and circumstances of the particular employer in relationship to the cost or difficulty of providing a specific accommodation). 12. 42 U.S.C. § 12112(b)(5). 13. The employer leave obligations contained in the FFCRA ended on December 31, 2020. The Consolidated Appropriations Act of 2021, passed on December 27, 2020, did not extend the FFCRA obligations. It did, however, give employers who were covered under the FFCRA the option to voluntarily provide “qualified” paid sick leave or paid family leave wages to their employees and continue to receive a tax credit for such wages until March 31, 2021. The American Rescue Plan Act of 2021 does not mandate that employers provide paid COVID-19related leave. However, covered employers that choose to voluntarily provide paid leave can receive payroll tax credits for leave provided for qualifying reasons until September 30, 2021. The American Rescue Plan Act of 2021, H.R. 1319, 117th Cong. § 9644 (2021). Qualifying reasons include: (1) any qualifying reason under the FFCRA for either the Emergency Paid Sick Leave or
the Emergency Family and Medical Leave; (2) obtaining a COVID-19 immunization; (3) recovering from an injury, disability, illness, or condition related to COVID-19 immunization; and (4) seeking or awaiting the results of a COVID-19 test or diagnosis because either the employee has been exposed to COVID-19 or the employee requested the test or diagnosis. Id. 14. What You Should Know, supra, at K.5. 15. Id. 16. Id. 17. Id. at K.6. 18. Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 84 (1977). 19. Questions and Answers: Religious Discrimination in the Workplace, U.S. Equal Emp. Opportunity Comm'n (July 22, 2008), available at https://www.eeoc. gov/laws/guidance/questions-and-answersreligious-discrimination-workplace. 20. EEOC Compliance Manual, No. 915.063, Section 12–I(A)(3) (Jan. 15, 2021). 21. EEOC Compliance Manual, No. 915.063, Section 12–I(A)(3) (Jan. 15, 2021). 22. EEOC Compliance Manual, No. 915.003, Overview of Statutory Protections (June 25, 2015). 23. See What You Should Know, supra, at J.2, K.5; 29 C.F.R. § 1630.2(o)(3). 24. Id. at K.1. 25. 29 C.F.R. § 1630.14(c). 26. What You Should Know, supra, at K.2. 27. Id. 28. Id. 29. 42 U.S.C. § 12112(d)(4)(B) (“A covered entity may conduct voluntary medical examination, including voluntary medical histories, which are part of an employee health program available to employees at that work site.”); see also 29 C.F.R. § 130.14(d). 30. What You Should Know, supra, at K.2. 31. Id. 32. Id. at K.3. 33. Id. at K.3. 34. Id.. at K.3. 35. 29 C.F.R. § 1603.14(c)(1) (requiring confidentiality of medical information of employees obtained from required medical examination), § 1603.14(d)(4)(i) (requiring confidentiality of medical information obtained from voluntary medical examinations). 36. Ark. Code Ann. § 11–9–101. 37. 29 U.S.C. § 207(e); 29 C.F.R. § 778.208.
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38. 29 U.S.C. § 207(a) (subject to certain exemptions, employers must pay employees overtime pay at a rate of at least one and onehalf times the employee’s regular rate for all hours worked in excess of 40 in a workweek). 39. See 29 U.S.C. § 216(b) (“An action to recover the liability” for minimum wage or overtime violations “may be maintained against any employer . . . by any one or more employees for and in behalf of himself or themselves and other employees similarly situated.”). 40. 29 C.F.R. § 531.35. 41. 29 U.S.C. § 157. 42. 29 U.S.C. § 158(a)(1) (making it an unfair labor practice for an employer “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7” of the NLRA). ■
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Law School Updates
UA Little Rock
University of Arkansas
William H. Bowen School of Law
School of Law
Dean Beiner
Bowen met this year’s challenges head on and provided students with a quality legal education despite being primarily online. In return, our students have shown grit in pursuing that education. With the help of donors and CARES Act funding, we upgraded the technology in five of our largest classrooms to allow hybrid course presentation. As an example, my civil procedure students met three days each week. In each session, up to one-third of the students attended class face-to-face while the other two-thirds attended online simultaneously. In August, our first-year students checked in online or via drivethru. Staff and student volunteers met them in Bowen’s parking lot as they drove from station to station. We are likely to repeat this fun event even after the pandemic crisis ends. Student Affairs has hosted wellness events, such as yoga and stress management, online and outdoors. They were also responsible for hosting vaccination clinics for both the flu and, eventually, COVID. Bowen’s Veterans Legal Services Clinic and Pro Bono Services Center have opened for business. The five clinic students enrolled this spring, along with Professor Rebecca Feldmann, are serving Arkansas’ veterans by assisting with VA disability applications or discharge status upgrades. The Pro Bono Service Center is providing CLEs for practicing attorneys interested in representing veterans. In addition to classroom improvements, we are replacing the building’s 30-year-old HVAC system. We will be safely returning to class this fall, per the University of Arkansas System Board of Trustees guidelines. Our seat deposits are strong, and we’ve recently concluded virtual Accepted Student Days. We will also welcome new faculty. Professor Almas Khan, from Georgetown Law, will be teaching in our RWA program. New programming is on the horizon. We have received the required approvals to offer a Masters in the Study of Law. This evening program will help professionals improve their legal knowledge and advance their careers. We expect to begin enrollment in the fall of 2022. We have realized hybrid teaching may open doors for Arkansas’ students. We are investigating how, in accordance with ABA standards and requirements, we can offer classes online to students who cannot travel to Little Rock on a daily basis. In October, we will celebrate our history and our distinguished alumni as part of the law school’s 45th Anniversary Gala. We at Bowen are proud of what we have accomplished, and we look forward to the year ahead.
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Dean McCabe
This year has been extraordinary. We adapted to unprecedented conditions and I have been truly inspired by the compassion, perseverance, and dedication of our students, faculty, staff, and alumni. While we did offer some face-to- face classes, all of our activities were conducted remotely and so we are excited to return to campus in the Fall of 2021. We are busy planning a gradual, flexible, but most importantly, a safe way to resume our in-person classes, activities, and events. I am thrilled to share that our Commencement ceremony took place on campus on May 8, and our Class of 2021 was able to graduate and celebrate this milestone in their lives together with their friends and families. (Of course, we also had a live stream of the event for those family members who had continuing health concerns and could not join us in-person as the pandemic continued). At least 110 students graduated with a J.D. degree and another 11 graduated with a Master of Laws. These students had worked so hard during this unusual and challenging year. Their resilience and commitment to their legal education is a testament to the fact that they value justice and understand the need to make a difference in the lives of others. I am incredibly proud of them. We have continued our collective work toward diversity, equity and inclusion (DEI) at the law school and in our broader legal community. This focus is critical because it supports a functional democracy and the rule of law. We established a DEI Coordinator to lead efforts to foster a dynamic, inclusive culture for our students, faculty, and staff. We also created programs and held virtual events where we recognized commonalities while engaging with and celebrating differences. Finally, I am thrilled that we announced the inaugural Dean’s Circle Faculty Award recipients this year. The awards were created to recognize excellence in teaching and advising, research and scholarship, and public service. Professor Jordan Blair Woods received the Dean’s Circle Faculty Award for Scholarship, Professor Danielle Weatherby received the Dean’s Circle Faculty Award for Teaching and Professor Annie Smith received the Dean’s Circle Faculty Award for Public Service. Professor Sara Gosman was the awards committee chair and led the law school through the inaugural year. I am pleased to recognize these outstanding individuals who represent excellence and leadership in legal education and community engagement.
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2020-2021
Sustaining Contributors Benefactors 2020-2021 Mark H. Allison Richard Lance Angel Charles Tad Bohannon Thomas M. Carpenter Joshua T. Carson Suzanne G. Clark Ralph M. Cloar Randy Coleman Bryce Cook Steven A. Cosse Tim J. Cullen Steven B. Davis Sherry D. DeJanes Robert H. Dudley Bob Estes Brent J. Eubanks Buck C. Gibson John F. Gibson, Jr.
Patrons
Benefactors are members who make a sustaining contribution of $250/year in addition to membership dues to support Association programs.
Judge Donald Goodner Judge David F. Guthrie Stuart W. Hankins Judge Lance L. Hanshaw Alexandra K. Harper R. Victor Harper L. Cody Hayes Joseph Hickey Philip Hicky, II Denise Reid Hoggard Glen Hoggard Eugene Hunt Anton Leo Janik, Jr. Paul W. Keith William H. Kennedy, III Judson C. Kidd Andrew F. Kirkendall Fred Kirkpatrick
Brandon W. Lacy Charles Knox Lincoln, II Col. William A. Martin Michael R. Mayton Dustin B. McDaniel Judge Mary Spencer McGowan Jerald Cliff McKinney, II Brandon K. Moffitt Margaret Woodward Molleston Rosalind M. Mouser Timothy J. Myers Debby Thetford Nye Chad R. Oldham William L. Owen William Lance Owens Richard Martin Pence John V. Phelps Joseph H. Purvis
Richard L. Ramsay Joseph D. Reece Brian M. Rosenthal Judge John R. Scott John S. Selig Andrew Duncan Sims James W. Smith James D. Sprott W. H. Taylor Greg A. Thurman Glenn Vasser William A. Waddell, Jr. Danyelle J. Walker Eddie H. Walker, Jr. Judge David J. Whitaker Rufus E. Wolff Tom D. Womack Judge Susan Webber Wright
Patrons are members who make a sustaining contribution of $100/year in addition to membership dues to support Association programs.
2020-2021 Gene D. Adams Elizabeth Ann Andreoli Ben F. Arnold Richard L. Arnold Kenneth B. Baim Barry D. Barber Melody Peacock Barnett Sara Hendricks Batcheller James Paul Beachboard David L. Beatty Kandice A. Bell Paul B. Benham III Camille Williams Bennett Stephen Bennett Michael Stephen Bingham Allen W. Bird II Judge Samuel N. Bird 40
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Will Bond Robert Bruce Branch, Sr. Silas H. Brewer, Jr. Fred E. Briner Bill W. Bristow Erin S. Brogdon Mickey Joe Buchanaan Tom A. Buford Larry W. Burks Paul Byrd Robert D. Cabe Donald K. Campbell III David Victor Capes Erin E. Cassinelli Christopher Chad Causey Earl Buddy Chadick James H. Clark www.arkbar.com
Janet K. Colaneri Roger U. Colbert Charles T. Coleman Brandi D. Collins John C. Collins II Jon B. Comstock Danny J. Cook Barry E. Coplin Nate Coulter Judge James O. Cox Merrida (Buddy) P. Coxwell J. B. Cross, Jr. James E. Crouch Tim J. Cullen Casey L. Cullipher F. Thomas "Tom" Curry Thomas A. Daily
Judge Elizabeth Danielson James E. Darr, Jr. Judge Robert T. Dawson Judge Beth M. Deere David M. Dryer Terry Dugger Warren E. Dupwe Don A. Eilbott Laura K. Ferner David Folsom Lyle D. Foster Matthew Gregory French Larry R. Froelich Matthew L. Fryar William Andrew Fulkerson III Price C. Gardner Charles Clifford Gibson III
Thank You for Your Support Patrons (cont.) Pamela B. Gibson Sam E. Gibson Greg R. Giles John P. Gill Dent Gitchel Morton Gitelman John C. Gregg Ronald L. Griggs Justice James H. Gunter, Jr. (ret.) Audra Katharine Hamilton Don F. Hamilton Raymond Harrill Robert L. Hart, Jr. Charles L. Harwell Richard F. Hatfield Patrick Henry Hays Daniel L. Heard Clifford J. Henry William E. Henslee Paul F. Henson Anthony A. Hilliard Brian C. Hogue Curtis E. Hogue Cyril Hollingsworth Don Hollingsworth Robert Howard Hopkins, Sr. Risie Rene' Howard Andrew Hudgens Q. Byrum Hurst Karen K. Hutchins James W. Hyden Michael E. Irwin Lawrence W. Jackson Randolph C. Jackson Larry Russell Jennings Judith M. Johnson
Glenn W. Jones, Jr. Jim Julian David W. Kamps Philip E. Kaplan Sean T. Keith Eugene T. Kelley Donald H. Kidd Judge Milam Michael Kinard Joseph F. Kolb Peter G. Kumpe Howard Baker Kurrus Michelle Y. Leding John Charles Lessel Judge John R. Lineberger Steven M. Lowry Gabriel D. Mallard Angela Michelle Mann Richard Bryant Marshall Stewart D. Matthews Judge Jerry Mazzanti Ed W. McCorkle Michael S. McCrary Bobby McDaniel Becky A. McHughes Devereux Johnson McKnight James "Jim" A. McLarty III James E. McMenis Anthony L. McMullen Kelly M. McQueen Henry N. Means III Michael J. Medlock Rick R. Medlock Philip Miron Chalk S. Mitchell Michael W. Mitchell Mark A. Moll Harry Truman Moore Wm. Kirby Mouser Jim R. Nash
Judge Olly Neal Sheffield Nelson Judge William David Newbern Frank B. Newell Stephen B. Niswanger David G. Nixon Brianna Spinks Nony John Ogles Edward T. Oglesby Judge James E. O'Hern III Michael C. O'Malley Sarah Diane Ort Jerry D. Patterson Brant Perkins Ellis Lamar Pettus Melody H. Piazza Richard L. Proctor Joseph Ramos Brian H. Ratcliff Gordon S. Rather, Jr. Brian W. Ray Robert Jeffrey Reynerson Judge Curtis E. Rickard Lewis E. Ritchey John Boyd Robbins William B. Roberts William S. Robinson Mark Rogers Charles D. Roscopf Philard L. Rounds Coy J. Rush, Jr. John L. Rush Steven E. Schulte Ryan Scott Stephen M. Sharum Justice Ronald L. Sheffield Scotty M. Shively Shaneen K. Sloan Robert D. Smith III
Michael W. Spades, Jr. Aaron L. Squyres Judge Laurie Bridewell Steele Jean D. Stockburger Judith C. Strother James H. Swindle David S. Taylor Floyd J. Taylor, Jr. Steven D. Tennant Judge A. Jan Thomas, Jr. Judge Cindy G. Thyer Justice Annabelle Imber Tuck (ret.) Richard Edwin Ulmer Marcus L. Vaden James R. Van Dover Judge Rice VanAusdall James R. Wallace Bill H. Walmsley Chris Walthall Judge John C. Ward Stan L. Warrick John Dewey Watson Timothy Fagan Watson, Sr. Daniel A. Webb Judge Gordon Webb Kandy Gregg Webb J. Adam Wells B. Dale West Edd N. Williams, Jr. George R. Wise Carolyn B. Witherspoon Marsha C. Woodruff Ronald G. Woodruff Andrea Grimes Woods Cary E. Young Steven S. Zega Dennis M Zolper
Please show your support when renewing your membership by adding a sustaining contribution on your membership form for the 2021-2022 Bar Year that begins July 1, 2021. For questions, contact Michele Glasgow at 501-801-5661 or mglasgow@arkbar.com. Vol. 56 No. 1/Spring 2021 The Arkansas Lawyer
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There's No Place Like Home: Legal Aid Programs Respond to the COVID-19 Crisis
By Kendall Lewellen The last year has created a new public awareness of the way that housing insecurity affects people’s lives. “Eviction affects everything in a person’s life,” according to Wake Forrest Law School Professor Emily Benfer. “It jeopardizes a family’s future housing opportunities and security. It limits access to opportunity, especially as people are attempting to put their lives back together. It is both a barrier to employment and a cause of unemployment.”1 Eviction disproportionately affects families with minor children.2 Mothers report more poverty, depression, and poor health outcomes for themselves and their children after eviction.3 Eviction also increases the spread of COVID-19 and related deaths among the general public.4 The government has taken huge steps to promote stable housing during COVID-19. There is a halt on foreclosures until June 30, 2021, for the 70% of single-family homes with federally-backed mortgages.5 The U.S. Centers for Disease Control and Prevention (“CDC”) has ordered a temporary halt in residential evictions for nonpayment of rent until June 30, 2021.6 The federal government has given generous funding for tenants and homeowners struggling with payments, although much of those funds have not yet reached the people who need them. Arkansas has created the Arkansas Rent Relief Program7 and Arkansas Fresh Start to help landlords and tenants access that aid.8 There are many new laws and resources to promote stable housing. However, many families lose their homes despite these protections. We see evictions for nonpayment of rent on a daily basis although there is an eviction moratorium in place. Some of these happen in courts while some happen through extrajudicial methods such as illegal lock outs and utility shut-offs. Our program has prevented evictions for many of those families. We also help tenants negotiate settlements when appropriate by 42
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getting them time to find other housing, neutral references, and other terms to soften the impact of eviction on their lives. Many tenants have defenses such as the CDC eviction moratorium, procedural defects, and cases filed through the unauthorized practice of law. However, even tenants with defenses will probably lose their homes if they do not have access to counsel. Legal aid programs have stepped up to meet this challenge. The Center for Arkansas Legal Services has almost doubled its housing cases in the past year. We have made it a priority to inform the public of changes in the law through our website (www.arkansaslegal.org) and social media presence. In 2020, the Arkansas Access to Justice Commission hosted a continuing legal education (CLE) course on eviction law during COVID-19 taught by staff from the state’s two legal aid programs. We were proud to see that over 400 people attended the CLE, many of whom now handle pro bono cases through our program. We will continue this work once COVID19 is over. We are especially excited to participate in a Housing Connective Care & Action Network of multidisciplinary partners to work together on long-term solutions to housing stability for Arkansas families over the next two years. If you would like to volunteer to help an Arkansas family keep their home, please contact the Center for Arkansas Legal Services at probono@arkansaslegalservices. org. Our staff can also make presentations in the community about housing and other civil legal issues. For more information, please visit www.arkansaslegal.org. Endnotes: 1. Talk Justice, an LSC Podcast, Episode 4: Eviction and the Pandemic, Legal Services Corporation (Oct. 13, 2021), available at: https://www.lsc.gov/media-center/ blog/2020/10/13/talk-justice-lsc-podcastepisode-4-eviction-and-pandemic [Accessed
28 April 2021]. 2. Matthew Desmond, Weihu An, Richelle Winkler, and Thomas Ferriss, Evicting Children, 92 Social Forces 303, 319 (Sept. 2013). 3. Matthew Desmond and Rachel Tolbert Kimbro, Eviction’s Fallout: Housing, Hardship, and Health, 94 Social Forces (2015). 4. Kathryn M. Leifheit, Sabriya L. Linton, Julia Raifman, Gabriel Schwartz, Emily Benfer, Frederick J. Zimmerman and Craig Pollack, Expiring Eviction Moratoriums and COVID-19 Incidence and Mortality (Nov. 30, 2020), available at https://ssrn.com/ abstract=3739576 (pending peer review). 5. Foreclosure Protection and Mortgage Payment Relief for Homeowners, National Housing Law Project (2021), available at <https://www.nhlp.org/wp-content/ uploads/2020.04.10-NHLP-HomeownerRelief-Info-Sheet-Update2.pdf> [Accessed 28 April 2021]. 6. Temporary Halt in Residential Evictions to Prevent the Further Spread of COVID19, Centers for Disease Control and Prevention (2021), available at <https:// www.cdc.gov/coronavirus/2019-ncov/more/ pdf/CDC-Eviction-Moratorium-03292021. pdf> [Accessed 28 April 2021]. 7. Rent Relief, Arkansas Department of Human Services (2021), available at <https:// humanservices.arkansas.gov/covid-19/dhsresponse-to-covid-19/updates-for-clients/rentalassistance/> (Accessed 19 May 2021). 8. Arkansas Fresh Start, Arkansas Community Action Agencies of Arkansas (2021), available at: <https://arfreshstart.com> [Accessed 28 April 2021]. ■
Kendall Lewellen is the Housing Practice Group Leader for the Center for Arkansas Legal Services
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ARKANSAS CHAPTER
The following attorneys are recognized in 2020 for
Excellence in the field of Alternative Dispute Resolution
Larry Burks (501) 804-5288
Chris Gomlicker (501) 850-8888
Frank Hamlin (501) 850-8888
JP Jaynes (501) 920-4420
John Mercy (903) 794-9419
Jim Tilley (501) 372-1406
Dewey Watson (501) 804-4131
Todd Williams (870) 932-8357
Check your preferred available dates or schedule appointments online, directly with Academy Members - for free. www.ArkansasMediators.org funded by these members
* The National Academy of Distinguished Neutrals is an invitation-only professional association of over 1100 litigator-rated mediators & arbitrators throughout the US and a proud sponsor of the AAJ and DRI. For more info, please visit www.NADN.org/about
44
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Attorney Disciplinary Actions Final actions from January 1 – March 31, 2021, by the Committee on Professional Conduct. Summaries prepared by the Office of Professional Conduct (OPC). Full text documents are available online through the Judiciary website by checking under “Opinions and Disciplinary Decisions” using the following link: https://www.arcourts.gov/professional-conduct/opinions [The “Model” Rules of Professional Conduct are for conduct prior to May 1, 2005. The “Arkansas” Rules are in effect from May 1, 2005.]
REFERRED TO DISBARMENT: VAN ES, TODD A., of Centerton, ABN 2008202, in Committee Case No. CPC 2020-029, on a complaint by former client Dawn Rodriguez, by Findings & Order issued March 22, 2021, for violations of AR Rules 1.1, 1.3, 1.4(a)(3), 1.4(b), 1.16(d), 3.2, 3.4(c), 5.5(a), 8.1(a), and 8.4(c), and in considering his prior disciplinary record, was referred to disbarment proceedings to be initiated by OPC if Van Es does not first surrender his law license. SUSPENSION: CARTER, BRADLEY M., of Franklin, TN, ABN 2012186, in Committee Case No. CPC 2020-025 by Findings and Order filed on January 19, 2021, was suspended from the practice of law for two years, with four months active suspension and the remainder on probation subject to conditions, as reciprocal discipline to Tennessee No. M2020-01394-SC-BAR-BP. VAN ES, TODD A., of Centerton, ABN 2008202, in Committee Case No. CPC 2020-019, on a complaint by Mark McCutcheon, by Findings & Order filed January 12, 2021, was suspended for 12 months, fined $500, and ordered to pay $950 restitution to McCutcheon for violations of AR Rules 1.1, 1.3, 1.4(a)(3), 1.4(a)(4), 1.16(d), 1.19(a), 5.5(a), 8.1(a), and 8.4(c). STAYED SUSPENSION/PROBATION TERMINATED: HUTCHINSON, WILLIAM ASA, III of Rogers, ABN 2001115, in Committee
Case No. CPC 2019-039, by Consent Findings & Order filed July 20, 2020, was suspended, fully stayed, as reciprocal discipline to sanctions imposed by the Supreme Court of Missouri, where he is also licensed. REPRIMAND: DUMAS, PAUL F., of Morrilton, Bar No. 96123, in Committee Case No. CPC 2020016, on a complaint by Jamie Coffman, by Findings & Order filed January 20, 2021, was reprimanded for violations of AR Rules 1.4(a)(3), 1.16(a)(2), 1.16(d), 3.4(c), 8.4(c), and 8.4(d). Dumas was also warned for his failure to respond to the Complaint, to which he was in default. GRAHAM, JEFFREY M., of Little Rock, ABN 81075, in Committee Case No. CPC 2020-022, on a Complaint by OPC, was Reprimanded based on his conduct regarding his IOLTA client trust account and improper financial “advances” to his clients, by Consent Findings & Order filed January 19, 2021. Graham admitted 25 advances to clients totaling about $56,715 over a two-year period in 20162018 in violation of AR Rule 1.8(e), and three violations of AR Rule 1.15(b)(3) by depositing a total of $16,250 of personal funds into his IOLTA account, in violation of the allowable $500 on each occasion. HURST, JOSH Q., of Hot Springs, ABN 2004016, in Committee Case No. CPC 2019-003, on a complaint by former client Kimberly Peters, by Findings & Order filed March 23, 2021, for his violations of AR Rules 1.2(a), 1.3, 1.8(j), 2.1, and 8.4(c), was Reprimanded and ordered to pay $5,000 restitution to Ms. Peters.
VAN ES, TODD A., of Centerton, ABN 2008202, in Committee Case No. CPC 2020-023, on a complaint by former client Mary Washburn, for violations of AR Rules 1.4(a)(4), 1.16(d), 3.4(c), 5.5(a), and 8.4(c), by Findings & Order filed March 24, 2021, was Reprimanded and fined $1,000 for his conduct in the matter. For failing to file a response to the Complaint, he was separately reprimanded and fined an additional $1,000. CAUTION: GRAHAM, JEFFREY M., of Little Rock, ABN 81075, in Committee Case No. CPC 2020-008, on a complaint by former client Joann Dixon, for violation of AR Rule 1.8(e), for making prohibited financial advances to a client, by Consent Findings & Order filed January 20, 2021, Graham was cautioned for his conduct. GRAHAM, JEFFREY M., of Little Rock, ABN 81075, in Committee Case No. CPC 2020-005, on a complaint by a client Janice Samms, for violation of AR Rule 1.8(e), for making prohibited financial advances to a client, by Consent Findings & Order filed January 20, 2021, Graham was cautioned for his conduct. NEWCOMB, ROBERT A., of Little Rock, ABN 73087, in Committee Case No. CPC 2020-021, on a complaint by client Christopher Young, for violations of AR Rules 1.1, 1.3, 1.4(a)(3), 1.4(a)(4), 1.16(d), and 8.4(d), by Consent Findings & Order filed January 6, 2021, was Cautioned, and ordered to pay $2,000 restitution to Young. ■
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Arkansas Bar Foundation 2224 Cottondale Lane, Little Rock, Arkansas 72202 www.arkansasbarfoundation.com • 501.801.5670
Memorials and Honoraria The Arkansas Bar Foundation acknowledges with grateful appreciation the receipt of the following memorial, honoraria and scholarship contributions received during the period February 1, 2020, through May 15, 2021. In Memory of Anita Casteel James A. McLarty In Memory of Ted Boswell Sharon and Fred Ursery In Memory of Phillip Crego Michael R. Gott In Memory of Diane Palmer Hilburn Judges Bill Wilson & Cathi Compton In Memory of John Edward Moore Linda and Donald Bacon Charles D. Roscopf Sharon and Fred Ursery In Memory of Ralph Murray Judges Bill Wilson & Cathi Compton In Memory of Ike Murry Judges Bill Wilson & Cathi Compton In Memory of Frank Newell Mike Wilson In Memory of Alan P. Roberts Judy and Glenn Vasser In Memory of Don Schnipper Diane Carroll and Elizabeth C. Bradbury Jeffrey and Lester McKinley A. Wyckliff Nisbet, Jr. Sylvia and Jim Van Dover Judy and Glenn Vasser Catherine and Dan Young In Memory of Charles W. Stewart Mike Wilson In Memory of William H.L. Woodyard Judge Dick and Beverly Moore Scholarship contributions Judge William R. Overton Scholarship Susan Overton Sutton 46
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New Fellows New Fellows 2019-2020 Bar Year
New Fellows 2020-2021 Bar Year
Matthew Boch Tim Cullen Matthew House Jillian H. Wilson Robert M. Wilson III
Robyn Allmendinger Joseph Falasco Jeb Joyce Mark Mayfield Geoffrey B. Treece Byron J. Walker R. Ryan Younger
New Sustaining Fellows The Foundation appreciates the support of its 248 Sustaining Fellows. We also welcome 57 new Sustaining Fellows listed below who joined during the 2020-2021 Bar Year. Blair Arnold Amber Wilson Bagley Governor Mike Beebe Judge Shannon Blatt Robert B. Branch, Sr. Larry W. Burks Gene C. Campbell Earl Buddy Chadick Jonann Coniglio Chiles Emmett B. “Chip” Chiles IV Carl J. Circo Nate Coulter Tim Cullen Judge Elizabeth Danielson Judge Paul Danielson Judge Beth M. Deere Richard T. Donovan Justice Robert H. Dudley Melissa McJunkins Duke
Phillip J. Duncan Bob Estes Judge Victor A. Fleming Colene Gaston C.C. “Cliff ” Gibson III Julie D. Greathouse Richard E. Griffin Judge Rita W. Gruber Charles E. Halbert, Jr. Randall Hall Eugene S. Harris Ron D. Harrison John T. Holleman Gary Holt Justice Jack W. Holt, Jr. Jenniffer Horan D. Michael Huckabay, Jr. Judge Amy Dunn Johnson Susan F. Martin
Michael R. Mayton Ed McCorkle Margaret Woodward Molleston Edward O. Moody Judge Christopher Morledge John F. Peiserich David J. Potter Senator David H. Pryor James D. Rankin III Brian H. Ratcliff Jeff Rosenzweig Judge Mary Davies Scott Ted C. Skokos Secretary Rodney E. Slater Floyd M. Thomas, Jr. Judge Christopher Thyer Ralph W. Waddell James R. Wallace Jeff H. Watson
Upcoming Events Arkansas Bar Foundation Annual Membership Meeting Wednesday, June 9, 2021 12:00 Noon Foundation Annual Board Meeting Wednesday, June 9, 2021 12:45 p.m. (Immediately follows Membership) Foundation Members: Please watch your email for video conferencing information
in memoriam William R. Bullock of Dardanelle died December 16, 2020, at the age of 86. He graduated from Russellville High School in 1951, and received a B.S. in Business Administration from the University of Arkansas in 1959. He graduated with a Juris Doctorate from the University of Arkansas Law School at Fayetteville in 1962. He served as Yell County Municipal Judge, Prosecuting Attorney for the 15th Judicial District and Circuit/Chancery/Juvenile Circuit Judge for the 15th Judicial District. The photograph for Judge Bullock in the Winter 2021 issue was incorrect. We apologize and regret this error. Ted Gene Boswell of Bryant died March 28, 2021, at the age of 88. He was a member of the U.S. Marine Corps and served during the Korean War. Ted was a practicing attorney at the Boswell Law Firm in Bryant and practiced law for 62 years. Robert Dudley Cabe of Little Rock died May 14, 2021, at the age of 78. He received a bachelor of arts degree from Hendrix College, and a bachelor of laws degree from Duke University at Durham, N.C. He later received an Honorary Doctor of Laws degree from Hendrix. He joined Wright, Lindsey & Jennings in 1966 and in 1981 opened Allen, Cabe & Lester with two other lawyers. In 1988, he became vice president and general counsel of Arkansas Blue Cross and Blue Shield, later becoming executive vice president for legal, governmental relations, and communication services. He retired in 2005.
Anita Sue Perkins Casteel of Batesville died February 27, 2021, at the age of 52. She graduated from Arkansas State University and the University of Arkansas Little Rock Law School. She worked many years at Snellgrove Law Firm and at the Arkansas Attorney General’s Office. Since 2001 she has served as an attorney at the Office of Chief Counsel at DHS. John Edward Moore of Little Rock died April 9, 2021, at the age of 68. He loved the practice of law, which he began in Mountain Home, at the Osmon and Wilbur Law Firm, for three years. He then joined the law firm in Little Rock of Huckabay, Munson, Rowlett, and Tilley, where he remained for 36 years, became a named partner, and the firm is now known as Munson, Rowlett, Moore and Boone. Charles Wesley Stewart III of Fayetteville died February 1, 2021, at the age of 93. Charlie graduated from Fayetteville High School in 1945. He enlisted in the United States Navy at 17 years old. His first day of service was the day the atomic bomb was dropped on Hiroshima. After his active duty, Charlie served in the Navy Reserve for another five years. He attended the University of Arkansas in Fayetteville, graduating from the School of Law in 1951. He was licensed to practice law for almost 70 years. The information contained herein was provided by the members' obituaries.
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