Joint Award Recipients

The Arkansas Bar Foundation and the Arkansas Bar Association selected the following recipients to honor this year because of their outstanding contributions.

Outstanding Lawyer Award PAUL D. McNEILL,

RMP LLP, Jonesboro, in recognition of excellence in the practice of law and outstanding contributions to the profession

Equal Justice Distinguished Service Award JUDGE AMY DUNN JOHNSON,

Circuit Judge, 6th Judicial District, 15th Division, in recognition of commitment to and participation in equal justice programs, including pro bono efforts through legal services

C.E. Ransick Award of Excellence SHERRY P. BARTLEY,

Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C., Little Rock, in recognition of outstanding contributions to the profession

Outstanding Jurist Award JUDGE JOYCE

WILLIAMS WARREN,

Little Rock, in recognition of exceptional competency, efficiency and integrity on the Bench and exemplary service to the administration of justice

Outstanding Local Bar Association: Sebastian County Bar Association

Thank you for a successful 123rd Arkansas Bar Association Annual Meeting Joint Meeting with the Arkansas Judicial Council

123RD

ANNUAL MEETING This event could not have been possible without all of the incredible support from all of our sponsors, speakers and volunteers. Thank you to all of the sponsors listed on the inside cover of this issue. Annual Meeting Co-Chairs: Jamie Huffman Jones and Sarah C. Jewell Program Planners: Family Law: Adrienne Griffis and Brooke Ware; Business Law: J. Cliff McKinney II; Criminal Law: Brian Clary; Zoom Facilitator: Cathy Underwood

From ArkBar President Paul W. Keith's welcome to the 2021 Annual Meeting:

Much has changed since that first meeting. Construction on the Arkansas State Capitol that we have known all of our lives would begin in 1899 and continue until 1915. The first mass-produced automobile—the Ford Model T—was 10 years in the future. Those attending the first meeting came by train, horse or horse and buggy.

This year, we travel to the Annual Meeting at the speed of light and return to our homes and offices just as fast. The downside is that we won’t be able to shake hands and slap backs. But we can temporarily leave the meeting and take a call or meet with a client.

Whether we arrive by locomotive or by fiber optic cable, the result is the same. We renew old acquaintances and make new ones. We learn something that makes us better lawyers. And we celebrate one another’s accomplishments. What a great time to be alive.

Understanding Human Trafficking Laws and Liability

By Annie B. Smith

Annie Smith is an Associate Professor of Law and the Director of the Civil Litigation & Advocacy Clinic, Human Trafficking Clinic at the University of Arkansas School of Law. Despite widespread public attention to human trafficking, it is still commonly misunderstood. Myths abound and those who spread them—as well as ominous conspiracy theories—make human trafficking harder to address.1 It is critical for judges and lawyers to be well-informed and to rely on reputable sources for accurate information about this serious form of exploitation.2

There are two types of human trafficking: sex and labor.3 Federal human-trafficking-related crimes are found in Chapter 77 of the U.S. Criminal Code.4 In Arkansas, the crime is referred to as “trafficking of persons.”5

The Many Forms of Human Trafficking

Examples taken from federal human trafficking prosecutions illustrate the broad range of abuses that this form of extreme exploitation entails and the diverse settings where it occurs.

In one instance, staffing agency owners used false promises to get foreign nationals to incur recruitment-related debts, secure temporary work visas, and travel to the United States.6 The traffickers compelled these guestworkers to work in country clubs and hotels using threats of arrest and deportation, knowing the serious economic and legal harms they would face in their home country if their debts went unpaid.

In a case involving minors, traffickers recruited Central American teenagers, promising them educational and employment opportunities.7 The traffickers smuggled the teens into the United States and forced them to live in abysmal conditions on a farm and to work for virtually no pay.8 The traffickers used threats of deportation and harm to the teens' families to control them.9

In another case, a U.S. national with an intellectual disability was compelled by his manager to work at a restaurant.10 He worked for nearly 100 hours each week for no pay.11 The trafficker beat, burned, and yelled at the man, and demeaned him with racial slurs.12

In a sex trafficking case, an adult initiated a sexual relationship with a teenager and eventually made her advertise and engage in commercial sex acts.13 In another case, a trafficker sought out homeless women with histories of trauma

and drug addiction.14 He used sexual assault and other forms of violence, threats, as well as access to heroin to compel them to engage in commercial sex acts. He also recorded the women engaged in sex acts and threatened to make the recordings public.

Each of these cases involved the use of threats, coercion, or physical force to compel a person to engage in labor, services, or commercial sex acts. Note, however, that any time a minor engages in commercial sexual activity, they are a victim of human trafficking—no force, fraud, or coercion of any kind is required.15

Criminal and Civil Liability for Human Trafficking

Individuals and entities can be held criminally liable for engaging in human trafficking crimes or knowingly benefitting from participating in ventures that do.16 Under Arkansas law, trafficking of persons is a Class A felony;17 patronizing a victim of human trafficking is a Class B felony;18 and both are Class Y felonies when the victim is a minor.19 Convicted organizations are subject to dissolution or reorganization, revocation or suspension of licenses, permits and other approvals, and other equitable relief.20 Law enforcement can seize vehicles and other conveyances without process where there is probable cause to believe they were used in the commission or attempt of trafficking.21

Human traffickers face substantial civil liability under federal and state law as well, including for attorney’s fees and costs, treble damages, and punitive damages.22 Liability extends beyond individuals who directly engage in the trafficking conduct to those who knowingly benefit from participating in a venture that does.23

Human Trafficking Litigation in Arkansas

Human trafficking litigation in Arkansas remains sparse.24 Included below is a sampling of the Arkansas cases that have alleged human trafficking.25

Labor Trafficking

Prosecutions of labor trafficking are nearly nonexistent in Arkansas. This author is aware of just one—State v. Chen—a case involving a Jonesboro restaurant owner accused of rape and human trafficking of an employee.26 Chen allegedly housed the employee in his apartment and beat her multiple times, prevented her from using the phone while speaking English, and raped her. Chen was charged with rape and two counts of trafficking of persons. He later pled guilty to attempted theft of services and battery in the third degree and was sentenced to 364 days and ordered to pay $3,000 in restitution as well as an additional amount in fines and fees.

Consistent with national trends, civil lawsuits alleging labor trafficking occur much more frequently than prosecutions in Arkansas.27 In one case, Mexican guestworkers brought a lawsuit against their employer alleging that he subjected them to inhumane living conditions on his Lonoke County farm, confined them in a metal shed when they were not working, prohibited them from leaving the farm without supervision, confiscated their passports, threatened them with blacklisting and deportation, and terminated one for consulting an attorney.28 The case settled for an undisclosed amount.

In another case brought by guestworkers, South African nationals filed suit against their agricultural employers alleging that, among other abuses, the employers threatened them with arrest, deportation and blacklisting, tracked their movements when they were away from the farm, verbally abused them, and refused to reimburse their substantial travel costs as a means of compelling work.29 Plaintiffs’ employment on defendants’ Crittenden County farm lasted for approximately one month and the case ended in a $35,000 settlement.

Children raised in Tony Alamo’s Foukebased cult brought a lawsuit against him and others alleging that they were forced to perform unpaid work for the cult and related entities, including landscaping, cooking, roofing, and soliciting donations.30 Plaintiffs alleged they were assaulted, starved, exposed to assaults of others, verbally abused, and prevented from securing government identification. Although a portion of the trafficking claims were dismissed when the court held that critical amendments to the federal law did not apply retroactively, one claim survived a motion for summary judgment.31 Plaintiffs settled with some defendants and dismissed others, including Alamo. At the time of the lawsuit, Alamo was already serving a 175-year sentence for numerous counts of transportation of a minor with intent to engage in criminal sexual activity.32

Plaintiffs in another labor exploitation case brought a class action alleging that they were subjected to human trafficking when they were compelled to perform dangerous unpaid work for a plastics company as a condition of their court-ordered participation in an allegedly substandard substance abuse recovery program in Decatur.33 While the court dismissed plaintiffs’ trafficking claims, it ordered defendants to pay roughly $1,100,000 in wage-related damages.34

Sex Trafficking

Sex trafficking is much more commonly prosecuted than labor trafficking. In one case, Damion Gunnells was charged with trafficking of persons when he allegedly recruited and transported an individual to involuntarily engage in commercial sex.35 He was also charged with assault in the second degree for allegedly dragging his then-girlfriend by her hair into a Springdale hotel room, as well as with drug-related charges. Media reports indicate that the victim was initially Gunnell’s girlfriend, and he forced her to engage in commercial sex acts, including by beating her and threatening her family and friends.36 Law enforcement was alerted when a hotel employee reported their concerns. Gunnells pled guilty to drug-related crimes and promoting prostitution in the second degree—a misdemeanor—and was sentenced to 36 months.

Latosha Lee was convicted of trafficking of persons when she accepted a small amount of methamphetamine in exchange for providing her teenaged daughter to a man for the purposes of engaging in sex.37 According to court records, Lee’s daughter met the man on Facebook when he commented that she was pretty; they later met and engaged in sexual activity. Although Lee repeatedly tried to prevent her daughter from seeing the man and engaging in sexual activity with him, she eventually permitted her to spend several hours with him in exchange for drugs. Her 10-year sentence was upheld on appeal.

In another case involving a minor, Muhammed Arif was arrested for allegedly offering to pay a minor money in exchange for a sex act while giving her a ride home from his Searcy business.38 The minor allegedly recorded their conversation and shared it with law enforcement.39

Several civil lawsuits alleging sex trafficking have been filed in Arkansas in recent years. In one, an alleged sex trafficking survivor pseudonymously filed suit against a Little Rock hotel as well as related entities and individuals alleging that she was held in the hotel for several months and forced to engage in numerous commercial sex acts.40 Notably, plaintiff did not allege that defendants directly engaged in the sex trafficking themselves but rather that they knowingly benefitted from it. Plaintiff alleged that the phones were disconnected in the hotel rooms, numerous keys were simultaneously issued to a single room, traffickers and others regularly passed through the hotel lobby in view of hotel staff, and that the hotel floor dedicated to sex trafficking was extremely noisy. Among other things, she also alleged she was beaten and choked repeatedly by the trafficker, that the hotel never responded to her screams for help, that staff looked away when she was nearby, and that the hotel manager resided in the hotel, participated in the sex trafficking activity, and instructed staff not to contact law enforcement. The case settled for an undisclosed amount.

Implications for Arkansas Attorneys

Attorneys whose practice may intersect with human trafficking might consider employing the following strategies if they do not already.

As a general matter, trafficked individuals should be counseled about their right to bring civil lawsuits against their traffickers and to receive restitution if there is a federal prosecution. If they are not U.S. citizens, they should be promptly referred to skilled immigration counsel. Clients should also be advised about relevant affirmative defenses if they are prosecuted for crimes that occurred as a result of their exploitation and also informed of criminal record sealing options if convicted. Ideally, an attorney would advocate for a trafficked individual throughout any criminal investigation and prosecution of their traffickers. If the individual is interested, referral to appropriate social services is strongly recommended.

Labor and Employment: Plaintiff-side employment attorneys—particularly those representing employees in high-risk sectors41 —might consider screening for human trafficking when presented with wage and hour violations, discrimination, injuries, or other workplace concerns.42

Attorneys who represent employers or work in-house on compliance matters might counsel clients about the risk of criminal and civil liability should they knowingly benefit from participating in a venture that engaged in human trafficking.43 Permitting under-capitalized labor contractors or unscrupulous recruiters to operate without meaningful oversight, for example, likely places clients at greater risk of liability for human trafficking as well as wage and hour and other violations of the law.

Immigration: Immigration attorneys representing clients who have experienced domestic violence, engaged in commercial sex work, or experienced labor exploitation might screen them for human trafficking. Trafficked individuals should be counseled about the private right of action and, if interested, referred to counsel experienced with such matters.44

Family Law: Human trafficking can present in a variety of ways in the family law context. In some circumstances, as illustrated by State v. Lee, minors are trafficked by family members. Cases involving child sex abuse and other forms of domestic violence should be evaluated for human trafficking.

Attorneys handling adoptions should be aware that coercing pregnant birth mothers to offer a child for adoption is now clearly recognized as a form of human trafficking under Arkansas law.45 In addition to physical force, prohibited coercion includes threats that the birth mother or another person will be sued, deported, or subjected to reputational harm.46 Adoption attorneys who do not already do so must ensure the practices of their staff and others they collaborate with do not constitute human trafficking.

Criminal: Human trafficking victims sometimes participate in crimes while being victimized and all too commonly face prosecution themselves. Fortunately, an affirmative defense is now available for certain crimes, including prostitutionrelated crimes and most drug crimes, where a trafficked individual can show they engaged in the criminal conduct as a result of their trafficking.47 In light of this recent change to Arkansas law, criminal defense attorneys should screen clients who were in vulnerable or exploitative situations to determine whether they were victims of human trafficking at the time of the alleged crime.

Finally, prosecutors have an important role in preventing further harm to trafficking victims. They can help to ensure the law enforcement agencies they collaborate with are equipped to identify and investigate all forms of human trafficking. They can also exercise prosecutorial discretion and decline to charge trafficked individuals who committed crimes as part of their exploitation.

Integrating knowledge of human trafficking laws into Arkansas attorneys’ practice is critical to addressing human trafficking in the state. Among other things, attorneys can help trafficked individuals to be aware of their rights and have access to the legal remedies to which they are entitled and to prevent further harms, including arrest, incarceration, and prosecution.

Endnotes:

1. See How Unproven Trafficking Stories Spread Online and Why Stopping Them Matters, Polaris Project (July 22, 2020), https://polarisproject.org/blog/2020/07/howunproven-trafficking-stories-spread-onlineand-why-stopping-them-matters/ (explaining the harmful consequences of conspiracyrelated human trafficking reports for trafficked individuals and the organizations that serve them). 2. Reputable sources include the Human Trafficking Legal Center, Coalition to Abolish Slavery and Trafficking, and The Freedom Network. The National Human Trafficking Hotline also offers basic information. 3. Some cases involve both sex and labor trafficking. 4. 18 U.S.C. § 1590; 18 U.S.C. § 1591.

5. Ark. Code Ann. § 5-18-103 (2013 & Supp. 2019). 6. Florida Couple Sentenced in Forced Labor Conspiracy to Exploit Filipino Guest Workers, U.S. Dep't of Just. (Dec. 10, 2010), https://www.justice.gov/opa/pr/floridacouple-sentenced-forced-labor-conspiracyexploit-filipino-guest-workers. 7. Leader of Human Trafficking Organization Sentenced to Over 15 Years for Exploiting Guatemalan Migrants at Ohio Egg Farms, U.S. Dep't of Just. (June 27, 2016), https://www.justice.gov/opa/pr/leaderhuman-trafficking-organization-sentencedover-15-years-exploiting-guatemalanmigrants. 8. Id. 9. Id. 10. South Carolina Man Sentenced to 10 Years in Prison for Forcing Man with Intellectual Disability to Work at Restaurant, U.S. Dep't of Just. (Nov. 6, 2019), https:// www.justice.gov/opa/pr/south-carolinaman-sentenced-10-years-prison-forcingman-intellectual-disability-work. 11. Id. 12. Id. 13. West Palm Beach Man Sentenced to Prison for Sex Trafficking of a Minor and Child Pornography, U.S. Dep't of Just. (May 2, 2019), https://www.justice.gov/ opa/pr/west-palm-beach-man-sentencedprison-sex-trafficking-minor-and-childpornography. 14. Vermont Man Who Exploited Opioid Addictions of Young Women Convicted of Multiple Counts of Sex and Drug Trafficking and Related Offenses, U.S. Dep't of Just. (May 10, 2019), https://www.justice. gov/opa/pr/vermont-man-who-exploitedopioid-addictions-young-women-convictedmultiple-counts-sex-and. 15. See 18 U.S.C. § 1591(a); see Ark. Code Ann. § 5-18-103(a)(4) (2013 & Supp. 2019). 16. 18 U.S.C. §§ 1589–1591. 17. Ark. Code Ann. § 5-18-103(c) (2013 & Supp. 2019). 18. Ark. Code Ann. § 5-18-104(b) (2013). 19. Ark. Code Ann. § 5-18-104(B)(2) (2013); § 5-18-103(C)(2) (2013 & Supp. 2019). 20. Ark. Code Ann. § 5-18-105 (2013). 21. Ark. Code Ann. § 5-5-202(B)(2)(E) (2013 & Supp. 2019). 22. Ark. Code Ann. § 16-118-109 (2016); 18 U.S.C. § 1595. 23. Ark. Code Ann. § 5-18-103(A)(2), (7) (2013 & Supp.. 2019); 18 U.S.C. § 1595(A). 24. In 2019, Arkansas ranked 32nd in the United States for the number of active federal criminal prosecutions with just five cases. 2019 Federal Human Trafficking Report, Arkansas State Summary, Human Trafficking Institute, https://www. traffickinginstitute.org/wp-content/ uploads/2020/08/Arkansas-2019-StateSummary.pdf. 25. Additional Arkansas sex trafficking prosecutions include: State v. Henry, No. 72CR-15-1174A (Washington Cnty. Cir. Ct. filed Jun. 17, 2015) (plea entered Jan. 27, 2016); State v. Carter, No. 66FCR-1715 (Sebastian Cnty. Cir. Ct. filed Jan. 5, 2017) (plea entered Mar. 8, 2017); State v. Hall, No. 72CR-17-2549 (Washington Cnty. Cir. Ct. filed Sept. 7, 2017) (case closed May 31, 2019); United States v. Handy, No. 09-CR-00052 (E.D. Ark. Mar. 15, 2010); United States v. Harris, No. 12-CR-00154 (E.D. Ark. Apr. 26, 3014); United States v. Roy, No. 13-CR00010 (E.D. Ark. Jun. 7, 2013); United States v. Kimble, No. 13-CR-00319 (E.D. Ark. filed Nov. 6, 2013); United States v. Smith, No. 14-CR-00121 (E.D. Ark. filed May 13, 2014); United States v. Wells, No. 14-CR-50047 (W.D. Ark. filed Aug. 13, 2014); United States v. Johnson, No. 4:15CR-00141 (E.D. Ark. May 25, 2016); United States v. Winston, No. 15-CR-20020 (W.D. Ark. Mar. 9, 2016); United States v. Deffenbaugh, No. 15-CR-00002 (E.D. Ark. Apr. 27, 2017); United States v. Lester, No. 15-CR-20033 (W.D. Ark. Sept. 9, 2016); United States v. Gibson, No. 15-CR-50043 (W.D. Ark. Jan. 28, 2016); United States v. Steward, No. 15-CR-50072 (W.D. Ark. Sept. 23, 2016); United States v. Williams, No. 16-CR-50016 (W.D. Ark. Dec. 22, 2016); United States v. Atkins, No. 4:18-cr00454 (E.D. Ark. May 14, 2021); United States v. Isom, No. 4:19-CR-00577 (E.D. Ark. filed Oct. 3, 2019); United States v. George, No. 4:19-CR-00498 (E.D. Ark. Sept. 3, 2019); United States v. Harris, No. 4:20-CR-00327 (E.D. Ark. filed Oct. 14, 2020). 26. State v. Hexin Chen, No. No. 16JCR18-168 (Craighead Cnty. Cir. Ct. filed Feb. 2, 2021). 27. See, e.g., Ramos-Madrigal v. Mendiola Forestry Serv., LLC, 799 F. Supp. 2d 958 (W.D. Ark. 2011); Kolbek v. Twenty First Century Holiness Tabernacle Church, Inc., No. 4:10-CV-04124, 2011 WL 5188424 (W.D. Ark. Oct. 31, 2011); Fouche v. ICE, No. 3:21-CV-00050-BSM (W.D. Ark. filed Mar. 2, 2021). 28. Cuarenta-Ramos v. Jack Odom D/B/A Odom Farms, No. 4:09-CV-00368-SWW (E.D. Ark. May 14, 2010). 29. Van Rensburg v. Robert Hood D/B/A Hood Brothers Farms, No. 3:19-CV-00008DPM (E. Dist. Ark. Jan. 14, 2019). 30. Griffin v. Alamo, No. 4:14-CV-04065SOH (W.D. Ark. Dec. 21, 2016). 31. Id. 32. United States v. Hoffman, No. 4:08-CR40020-HFB-BAB (W.D. Ark. Sept. 24, 2015). 33. Fochtman v. DARP, Inc., No. 5:18-CV5047, 2018 WL 3148113 (W.D. Ark. June 27, 2018). 34. Id. At the time of publication, defendants’ appeal to the Eighth Circuit was pending. 35. State v. Gunnells, No. 72CR-19-3369 (W.D. Ark. filed Apr. 1, 2019). 36. Allison Wise, Springdale Hotel Manager Helped Rescue Trafficked Woman, Police Say, KHBS/KHOG (Dec. 6, 2019) https:// www.4029tv.com/article/springdale-hotelclerk-helps-rescue-trafficked-woman-policesay/30144570. 37. Lee v. State, 2019 Ark. App. 343, 583 S.W.3d 395. 38. State v. Arif, No. 73CR-19-788 (White Cnty. Cir. Ct. filed Nov. 12, 2019). 39. At the time of publication, the case was scheduled for trial. United States v. Arif, No. 4:20-CR-00035-DPM (E.D. Ark. filed Feb. 4, 2020). 40. Doe v. Seven Stars Hotel Group, D/B/A Quality Inn and Suites, No. 4:19-CV00834-BRW (E.D. Ark. Nov. 25, 2019) (see third amended complaint). Additional civil suits that allege sex trafficking include Doe v. Patel Legacy Hotels, LLC D/B/A America’s Best Value Inn, No. 60CV-21-619 (E.D. Ark. filed Jan. 25, 2021); Doe v. Stone Hospitality, No. 60CV-20-3346 (Pulaski Cnty. Cir. Ct. filed Jun. 10, 2020); Risser v. Fleming, No. 60CV-21-376 (Pulaski Cnty.

Cir. Ct. filed Jan. 18, 2021); Doe v. Fleming, No. 60CV-21-1526 (Pulaski Cnty. Cir. Ct. filed Mar. 2, 2021); Corissa Withrow v. Fleming, No. 60CV-20-7395 (Pulaski Cnty. Cir. Ct. filed Dec. 29, 2020). 41. High risk sectors include construction, domestic work, hospitality, and agriculture, but labor trafficking can occur in most industries. 42. Lawyers should anticipate that it can take time, trust, and stability for a trafficked individual to fully share their experiences and that it will almost certainly require multiple interviews. Among other things, some trafficked individuals may not realize that the exploitation they experienced was human trafficking, may be reluctant to share or to accuse their traffickers, may have priorities unrelated to legal matters, and may struggle to provide coherent, wellorganized, thorough explanations of their experiences as a result of the impacts of trauma. 43. See Ark. Code Ann. § 5-18-103(a)(2), (7) (2013 & Supp. 2019); 18 U.S.C. § 1595(a). 44. The author is willing to assist with screening and referral of such cases to attorneys experienced with civil litigation on behalf of trafficked individuals and to serve as a resource on human trafficking matters generally. She can be reached at abs006@ uark.edu. 45. See Ark. Code Ann. § 5-18-103(a) (6) (2019); An Act to Establish Safe Harbor Provisions for Victims of Human Trafficking; And to Establish an Affirmative Defense, No. 1106, 2021. 46. Id. Additional requirements designed to protect pregnant mothers from exploitation in adoption matters were also enacted, including An Act to Amend the Law Concerning Consent to Adoption and Relinquishment of Parental Rights During the Adoption Process; Concerning the Report of Expenditures Related to an Adoption; and For Other Purposes, No. 599, 2021. 47. See Ark. Code Ann. § 5-2-210 (2021). ■

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2021 Legislative Update

By Jay Robbins

The Arkansas Bar Association is your advocate at the state Capitol, and because of your help and support we had a successful 2021 legislative session.

The Regular Session of the 93rd General Assembly convened on Monday, January 11, 2021, and recessed on Friday, April 30, 2021.

During the 2021 Regular Session, the legislature filed 1,675 bills, passing 66% of the filed bills. The Association worked full time to monitor every piece of legislation affecting justice and the legal profession.

The Association could not have done it without the help and support of the Legislation Committee, chaired by Lynn Foster. This year’s Legislation Committee also consisted of Payton Bentley, Taylor Chaney, Bob Estes, Jason Hendren, Glen Hoggard, Karen K. Hutchins, Jamie Huffman Jones, Paul Keith, Joe Kolb, Cliff McKinney, Blake Montgomery, Ezra Smith, and Aaron Squyres.

This committee reviewed every bill filed and every amendment made, and worked tirelessly throughout the session to protect the practice of law and the administration of justice.

The Legislation Committee supported 15 bills and opposed 15 bills or constitutional amendments. Of the 15 bills the Association supported, 10 were signed into law. Of the 15 bills or constitutional amendments the Association opposed, two were signed into law.

The Legislation Committee could not have done it without the backing of the entire membership. The committee sent over 650 bills to over 30 different sections within the Association for input and consideration. Many thanks to all the members who reviewed bills, provided comments, and testified on behalf of the Association.

The Arkansas Bar Association’s Legislative Package

One of the primary priorities of the Association is to assist in the enactment of laws and improve the legal system in Arkansas. The Association’s 2021 legislative package included the five proposed bills listed below. Each proposal was submitted by the Jurisprudence and Law Reform Committee and approved by the Board of Trustees. Four of the five proposals were passed by the legislature and signed by the governor. The non-candidate expenditure bill, HB1899, passed the House Judiciary Committee, but could not garner the support of the entire House of Representatives.

Uniform Limited Liability Company Act (ULLCA) – Act 1041

ULLCA, SB601, was sponsored by Senator Dismang. According to the Uniform Law Commission, the ULLCA permits the formation of limited liability companies, which provide owners with the advantages of both corporate-type limited liability and partnership tax treatment. The 2011 and 2013 amendments, enacted as part of the Harmonization of Business Entity Acts project, updated and harmonized the language in this Act with similar provisions in other uniform and model unincorporated entity acts.

Uniform Fiduciary Income & Principal Act (UFIPA) – Act 1088

UFIPA, HB1693, was sponsored by Representative John Maddox. According to the Uniform Law Commission, the UFIPA is a revision of the former Uniform Principal and Income Act with a new name to differentiate the act from its three predecessor versions. While older trusts often had clear delineation between income and principal interests, modern trust accounting requires flexibility. Trustees now tend to invest for the greatest total return, and then adjust between interest and principal to produce a fair result for all the beneficiaries. UFIPA recognizes this trend toward totalreturn investing and includes unitrust conversion rules to allow even older trusts to take advantage of modern investment trends. UFIPA gives estate planning attorneys additional flexibility to tailor a trust for each client’s needs and includes a new governing law section to help avoid jurisdictional disputes.

Uniform Civil Remedies for Unauthorized Disclosure of Intimate Images Act (UCRUDIIA) – Act 420

UCRUDIIA, HB1645, was sponsored by Representative Dalby and Senator Ballinger. According to the Uniform Law Commission, the UCRUDIIA addresses the disclosure of private images of nudity or sexual conduct without consent. The UCRUDIIA creates a civil cause of action, protects victims’ identities, and provides various remedies.

Power of Attorney Technical Correction – Act 356

HB1455, an act to amend the law concerning the conveyance of real property by power of attorney, was sponsored by Representative Collins and Senator Ballinger.

Non-Candidate Expenditure – HB1899

The non-candidate expenditure bill, HB1899, was sponsored by Representative Collins and Senator Tucker. HB1899 was an act to protect public confidence in the integrity of appellate judicial elections, require the disclosure and reporting of non-candidate expenditures pertaining to appellate judicial elections and empower citizens to compel transparency from persons making non-candidate expenditures. HB1899 passed the House Judiciary Committee, but was unable to receive the needed support of the entire House of Representatives.

Jay Robbins is the Director of Government Relations for the Arkansas Bar Association.

Legislative Resources

The next Regular Session of the General Assembly will convene in January 2023.

Members, Sections, and Committees of the Association are encouraged to participate in the development of the Association’s legislative package. Proposed legislation should be submitted in bill form and address issues concerning matters of jurisprudence and procedure, including reforms of the substantive law, and improvement in practice and in administration of the Courts. Proposed legislation must be submitted by January 31, 2022.

The Association’s by-laws charge the Jurisprudence and Law Reform Committee with reviewing proposed bills and reporting their findings to the Board of Trustees. The Association’s package for the 2023 Session of the Arkansas General Assembly will be adopted at the June 2022 meeting of the Board of Trustees.

Lastly, please consider becoming a supporting member of the nonpartisan political action committee. The Arkansas Bar PAC is your opportunity to be the change you wish to see. Becoming politically involved is the best way to ensure your voice is heard and that you are part of the solution. ■

Governor Asa Hutchinson Lieutenant Governor Tim Griffin Attorney General Leslie Rutledge

Senator Bob Ballinger

Senator Stephanie Flowers

Senator Trent Garner

Senator Clarke Tucker

Speaker of the House Matthew J. Shepherd Representative Andrew Collins Representative Nicole Clowney

Representative Gayla H. McKenzie

Representative Kendon Underwood Representative David Whitaker Representative Carol Dalby Representative Jimmy Gazaway Representative Ashley Hudson Representative John Maddox

Thank you! Arkansas Lawyer Constitutional Officers and Legislators of the 93rd General Assembly

By Helen Gratil

Beyond Opioids

Substance use disorder (SUD) is a public health issue that challenges our traditional way of thinking about drug addiction. As lawyers, we are trained to look at illicit drug use or substance misuse as damaging evidence against the adverse party. That practice has sent people who are sick to prison, overworked our prosecutors and public defenders, drained the resources of the courts, devastated families by fatal overdoses, bankrupted households, and subjected generations to a cycle of adverse childhood experiences that nearly guarantees a path of criminal behavior or victimization and solidifies endemic poverty in our landscape. The practice did not solve the problem but spread it across multiple sectors. At legal aid we receive generations of traumatized families in the aftermath of our punitive practice against people with SUD. Our local legal aid programs, Center for Arkansas Legal Services (“The Center”) and Legal Aid of Arkansas (“Legal Aid”), came together to begin shifting Arkansas’ SUD paradigm where treatment and support are paramount to punishment by creating Beyond Opioids, a project that pivots the use of civil legal interventions to help cure the opioid epidemic and other substance use disorders.

Beyond Opioids is a consortium of SUD providers led by The Center and Legal Aid.1 We provide legal, prevention, treatment, and recovery services to our shared clients. Our story’s backdrop was a lunch in Jonesboro. Managing Public Defender of the 2nd Judicial District, Brian Miles, asked Lee Richardson, Executive Director of Legal Aid, about possibly sending legal aid attorneys to help his clients charged with drug-related offenses who need support in addressing the stressors that led them to his docket. They are financially distraught, have complicated familial relationships, often homeless or in deplorable housing conditions, and overwhelmed by life’s demands. They are arrested and their driver’s licenses are suspended, adding a layer of stress to their already traumatized condition. They are cut off from their children, triggering a downward spiral of hopelessness that often leads to overdose that is, at times, fatal. Legal Aid set in motion an 18-month inquiry on the needs and challenges they face relating to SUD. When the compelling assessment came, The Center joined the mission to lead our legal community to treat SUD in our practice as a public health issue as opposed to a moral and personal failing.

We found that over 80% of our clients are impacted by substance use disorder, a significant portion of whom have a pending, drug-related criminal charge. Our clients with a pending possession charge often wait more than one year to get through the criminal justice system. In between, the lack of SUD treatment services leads them to spiral, picking up more charges and making it impossible for them to resolve their cases. Through Beyond Opioids’ consortium, we can intervene and offset the stress brought on by the arrest. The punitive approach to SUD finds its roots in the stigmatization of illicit drug use and prescription misuse. This stigmatization normalizes prejudicial attitudes beyond our justice systems and opens avenues for further discrimination. In addition to making arrests for drug use with no initial offer of treatment, we create barriers in our laws that exacerbate the traumatic roots of SUD. Poor people with SUD are barred from federal public housing, creating a swelling population of people who are SUD-sick and homeless. We also know that racial disparities that exist in the criminal justice system also impact perceptions and treatment of those with SUD. Families struggling with SUD need a revolutionary change in addressing the public health issue and we seek members of our legal community to join us in paving that road to curing the opioid and other drug crises in Arkansas.

Our legal community is in a special position to reverse the impact of our historical relationship with SUD. It could be as simple as looking at a person under the lens of trauma that they’ve endured when they are in front of you to be judged and sentenced. We could open up diversion programs and include legal aid attorneys as members of our Drug Court teams. When we arrest people for possession, we could intentionally get them through the system more quickly and give them treatment on the front end. We can reduce offenders’ restrictions in Drug Court. We can create agreements between the Parole Department and Drug Courts to allow parolees access to services. Beyond Opioids is an open space to figure out ways to break the legal barriers for families needing help. To volunteer or help shape our strategy as champions of justice, please contact Beyond Opioids Director, Helen Gratil, at hgratil@ arkansaslegalservices.org or (479) 326-7027.

Endnote:

1. Beyond Opioids was made possible by a $2.2 million grant by Health Resources & Services Administration (HRSA), the federal agency focused on improving health care to people who are geographically isolated and economically or medically vulnerable. The project launched on 1 September 2020 and will be funded by HRSA through 31 August 2023. ■

Helen Gratil is the Beyond Opioids Director