The Arkansas Lawyer Winter 2020

Lawyer The Arkansas

A publication of the Arkansas Bar Association

Inside: 19th Amendment Centennial Celebration Uniform Directed Trust Act Electronic Appeal Pilot Project 20 Years After Amendment 80 Rome, Shakespeare and the Rule of Law

Vol. 55, No. 1, Winter 2020 online at www.arkbar.com

122nd Arkansas Bar Association Annual Meeting June 10-12, 2020 Hot Springs Convention Center

Opening Plenary Speaker • Wednesday June 10 • 5:30 - 6:30 PM

Criminal Justice Reform Activist

Judge Victoria Pratt

Topic - “Why What We Do Matters” Followed by opening welcome reception

GUEST SPE AKERS MAKING A DIFFERENCE TO CLIENTS

MAKING A DIFFERENCE IN HER COMMUNITY

MAKING A DIFFERENCE IN THE PROFESSION

BACK

BY POPULAR DEMAND

nEW! LATE NIGHT COMEDY CLE

nEW! INTERACTIVE CLE

Laura Nirider

Kelsey Skaggs

Judge Victoria Pratt

Mark Lanterman

Sean Carter

Jennifer Strouf

Attorney for Brendan Dassey of Making a Murderer and Damien Echols of West Memphis Three

Co-Founder of the Climate Defense Project

Chief Judge of Newark Municipal Court

Chief Technology Officer of Computer Forensic Services

Wednesday, June 10 7 - 8 PM & 8 - 9 PM

Friday, June 12 3-Hour Course on Interactive Evidence

watch for more info @ www.arkbar.com/annualmeeting

THURSDAY EVENING SHOWDOWN RETURNS! Food & Live Entertainment!

Watch for more information coming soon.

PUBLISHER Arkansas Bar Association Phone: (501) 375-4606 Fax: (501) 375-4901 www.arkbar.com EDITOR Anna K. Hubbard EXECUTIVE DIRECTOR Karen K. Hutchins EDITORIAL BOARD Anton Leo Janik, Jr., Chair Melody Peacock Barnett Luke K. Burton Dr. Frankie Martin Griffin Haley M. Heath Judge Brandon J. Harrison Ashley Welch Hudson Jim L. Julian Philip E. Kaplan Tory Hodges Lewis Drake Mann Gordon S. Rather, Jr. Trent David Thomas David H. Williams OFFICERS President Brian M. Rosenthal Board of Governors Chair Brandon K. Moffitt President-Elect Paul W. Keith Immediate Past President Suzanne Clark President-Elect Designee Bob Estes Secretary Glen Hoggard Treasurer Joseph F. Kolb Parliamentarian Aaron L. Squyres Young Lawyers Section Interim Chair Chris Hussein BOARD OF GOVERNORS Aubrey L. Barr Kandice A. Bell Margaret Hobbs Benson Douglas Brimhall Chase Carmichael Sterling Taylor Chaney Brian M. Clary Representative Carol C. Dalby Bob Estes Brent J. Eubanks Robert (Skip) L. Henry III Jamie Huffman Jones Jessica Virden Mallett Patrick W. McAlpine Joshua D. McFadden J. Cliff McKinney II James E. McMenis Anthony L. McMullen John Rainwater Albert J. Thomas III Harold Wayne Young LIAISON MEMBERS Karen K. Hutchins Judge Hamilton Singleton Harry Truman Moore Judge John C. Throesch Richard L. Ramsay Danyelle J. Walker Jay Robbins 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 non-members 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 2020, Arkansas Bar Association.

All rights reserved.

The Arkansas

Lawyer Vol. 55, No. 1

features

10 Arkansas Enacts a Version of the Uniform Directed Trust Act: Relief for “Directed Trustees” Begins in 2020

By David Biscoe Bingham

14 Navigating the Uncharted Course of the Electronic Appeal Pilot Project By Kyle E. Burton and Paul Charton 20 A Report from the 2019 National Conference of Commissioners on Uniform State Laws By J. Cliff McKinney II 22 The Merger of Law and Equity: 20 Years After Amendment 80

By Jim L. Julian and Rachel Hildebrand

30 Inaugural Public Service Academy 34 Rome, Shakespeare and the Rule of Law

By Carl J. Circo

38 Members Who Have Served in the Military

42 ARJLAP Advocates at Heart Network By Jennifer Donaldson 44 Center for Arkansas Legal Services Receives $500,000 Grant for Disaster Legal Assistance

By Jennifer Ivory Contents Continued on Page 2

Lawyer The Arkansas Vol. 55, No. 1

in this issue

columns

ArkBar News

4

ArkBar CLE Calendar

6

ArkBar Call to Leadership

18

Law School Updates

26

Thank You to 2019 CLE Speakers

40

Disciplinary Actions

47

President’s Report Young Lawyers Section Report

50

In Memoriam

51

Nomination Form for the Arkansas Bar Association Legal Hall of Fame

52

9

Chris Hussein

Fastcase Fast Facts

28

Cathy Underwood

The Arkansas

Lawyer A publication of the Arkansas Bar Association

Arkansas Bar Foundation

7

Brian Rosenthal

Vol. 51, No. 1, Winter 2016 online at www.arkbar.com

Inside: Same-Sex Marriage Judicial Campaign Finance The Arkansas Supreme Court During World War II Arkansas LLCs Guardianships of Minors

Advertise in the next issue of The Arkansas Lawyer.

Opportunities also available on ArkBar’s website & weekly ebulletins. www.arkbar.com/for-attorneys/ publications/the-arkansas-lawyer/ advertising

Arkansas Bar Association

2224 Cottondale Lane, Little Rock, Arkansas 72202

HOUSE OF DELEGATES Delegate District A-1: Geoffrey Denzil Hamby, SaVannah Justine Reading, George M. Rozzell, Ryan Scott, Seth A. White Delegate District A-2: Payton C. Bentley, Leslie Copeland, M. Scott Hall, Luke Mitchell Haller, Jason M. Hatfield, Brian C. Hogue, David R. Hogue, Sarah Coppola Jewell, Jarid Markus Kinder, Alan Lee Lane, John Pesek Delegate District A-3: James A. Arnold II, Sarah E. Capp, Craig L. Cook, Keith M. Kannett, Stephen Napurano Delegate District A-4: Justice Paul Danielson Delegate District A-5: Johnny L. Nichols Delegate District A-6: Allen Laws Delegate District A-7: Frederick S. Spencer Delegate District B: Darryl E. Baker, Jordan Bates-Rogers, David Biscoe Bingham, Anthony Bryce Brewer, Tim J. Cullen, Thomas J. Diaz, Paige Edgin, Bob Edwards, Joseph Dean Gates, Jesse J. Gibson, Jordan Broyles Hallenbeck, D. Michael Huckabay, Jr., Ashley Welch Hudson, Kyle D. Kennedy, Joseph F. Kolb, Victoria Leigh, Jessica Virden Mallett, B. Chase Mangiapane, Stefan McBride, Kathleen M. McDonald, J. Cliff McKinney II, Jeremy M. McNabb, David S. Mitchell, Jr., Meredith S. Moore, Ruthanne Nash Murphy, Andrew Payne Norwood, John Ogles, Scott Michael Strauss, Heather Goodson Zachary Delegate District C-1: Robert F. Thompson III Delegate District C-2: Barrett Moore Delegate District C-3: Robert J. Gibson, Warren Curt Hawkins, Ryan M. Wilson Delegate District C-4: Kara Lynn Byars Delegate District C-5: Christopher Michael Bryant, Keith L. Grayson, Kathie A. Hess Delegate District C-6: Joe Aaron Denton, Pamela Osment Delegate District C-7: Ginger M. Stuart Delegate District C-8: Margaret Dobson, George Lea, Carla M. Martin Delegate District C-9: Benjamin Patrick Barton, LeAnne P. Burch, Lee Douglas Curry Delegate District C-10: Amy Freedman, Joshua L. Potter Delegate District C-11: Sterling Taylor Chaney, Taylor Andrew King Delegate District C-12: Kathy A. Cruz, Kurt J. Meredith Delegate District C-13: John Andrew Ellis, Lori D. Howard Law Student Representatives: Hannah Butler, University of Arkansas School of Law; Bradey Camille Chambers, UA Little Rock William H. Bowen School of Law

2

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ArkBar News 2020 Mid-Year Meeting

Mid-Year Chair Sarah Jewell and ArkBar President Brian Rosenthal

Barbara Womack Webb, ArkBar President Brian Rosenthal and Judge Morgan “Chip” Welch

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The Association held its Mid-Year Meeting in Little Rock February 6-7, 2020. Thank you to the sponsors, exhibitors, volunteer speakers, planners and the over 200 registrants who made the meeting a success! The meeting included two days of CLE seminars held at a new location—the Holiday Inn Airport in Little Rock. Sarah Jewell of McMath Woods, PA served as the chair of this year’s meeting.

Association President Brian Rosenthal welcomed attorneys and judges at the Thursday afternoon reception where attendees had a chance to hear from the two Arkansas Supreme Court candidates Barbara Womack Webb and Judge Morgan “Chip” Welch. A big crowd joined the Young Lawyers Section for their evening reception at the Flying Saucer.

ArkBar’s endorsed lawyer’s professional liability insurance agent, BXS Insurance, offered four hours of risk management seminars. For the first time two hours of evening CLE was offered on Thursday.

The Association hosted the award-winning traveling exhibit, “100 Years After the 19th Amendment: Their Legacy, and Our Future,” which celebrates the centennial of the 19th Amendment.

The six-banner free-standing exhibit on loan from the American Bar Association Standing Committee on the Law Library of Congress features historic photos and artifacts, details the story of the battle for ratification and outlines the challenges that remain. In addition to being on display during the Mid-Year meeting, the exhibit spent time at each of the state’s law schools while it was in Arkansas. Sponsors of the exhibit include the Arkansas Bar Foundation, Brian Rosenthal, and the association’s Young Lawyers, Civil Rights and Labor & Employment Law Sections.

See the list of sponsors and complete photo gallery at www.arkbar.com/midyearmeeting.

On the Cover

New Sculpture Celebrating 19th Amendment Centennial

As part of ArkBar’s continued celebration of the 19th Amendment Centennial, photographs of the new sculpture by Jane DeDecker titled “Every Word We Utter” are included in this issue and on the cover. The sculpture, located in the Little Rock River Market’s Vogel Schwartz Sculpture Garden, was dedicated on October 10, 2019. The base of the sculpture includes the names of Arkansas women’s suffrage leaders who worked between 1869 and 1919 along with some historical facts.

Photos by Mike Pirnique, Pirnique Photography.

Read more about the sculpture in AY’s January issue at https://issuu.com/ ayisaboutyou/docs/ayjan2020-allpagescropped/100.

Oyez! Oyez!

ACCOLADES Skye Martin, an attorney at the Arkansas Department of Human Services, was named a World Woman Fellow 2019 at the World Woman Summit in November.

APPOINTMENTS AND ELECTIONS Lucie Brackin has been elected as president of the Memphis Bar Association. Keith Chrestman of Jonesboro was appointed to a seat in the 2nd Judicial Circuit to replace Judge John Fogleman of Marion, who retired. Davy Carter has been selected to serve as a Federal Reserve Bank branch director in Memphis. Quattlebaum, Grooms & Tull PLLC announced that Joseph R. Falasco has been appointed to the Arkansas Supreme Court Committee on Model Jury Instructions-Civil for a three year term and Meredith M. Causey has been named to the Board of Directors for USAble Life. The American College of Environmental Lawyers elected Mitchell, Williams, Selig, Gates & Woodyard partner Allan Gates as President of the ACOEL Foundation.

WORD ABOUT TOWN Quattlebaum, Grooms & Tull PLLC announced that R. Seth Hampton, Sarah Keith-Bolden, Scott M. Lar and Thomas H. Wyatt have been named members of the law firm. Richard H. Mays, formerly of Williams & Anderson, announced the opening of his new office at 2226 Cottondale Lane, Suite 100, Little Rock. Lax, Vaughan, Fortson, Rowe & Threet announced the addition of Branch Fields and Robert Beach as shareholders. The firm also welcomes Emily Nadeau, who has joined the firm as an associate. J. Dalton Person has been named partner at the Fort Smith law firm of Jones, Jackson, Moll, McGinnis & Stocks, PLC. Friday, Eldredge & Clark, LLP announced attorneys Robert W. George and Matthew D. Mitchell have been elected partners in the firm. The lawyers work at the firm’s Rogers office.

Vicki S. Vasser-Jenkins joined Walmart as Senior Counsel, Merchandising Business Support. Gill Ragon Owen announced that Aaron Heffington and Adam Reid are new shareholders in the firm and that Sam Piazza has joined the firm as an associate. Cross, Gunter, Witherspoon and Galchus, P.C. in Little Rock announced that the firm has formed an “of counsel” affiliate relationship with the national labor and employment law firm Constangy, Brooks, Smith and Prophete, LLP. The firm also announced the addition of the following attorneys to the firm: Philip E. Kaplan, Bonnie Johnson, Nicholas Williams, Robin G. Fish, and Bryan Borland.

Duncan Firm, P.A. announced that the firm has moved its main office to 809 West Third Street, Little Rock, Arkansas, 72201, effective February 1, 2020. McDaniel, Wolff & Benca, PLLC formally announced the completed merger of three law firms: McDaniel, Richardson & Calhoun, PLLC; Wolff & Ward, PLLC; and Benca & Johnston, PLLC. Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C. announced that it has selected attorney Jeffrey H. Thomas as the law firm’s new Managing Director and Amanda Orcutt has joined the firm as Counsel in the Little Rock office. Crouch, Harwell, Fryar & Ferner, PLLC, in Springdale announced that Steve Zega has been named as a partner with the firm.

Please send Oyez announcements to ahubbard@arkbar.com.

Bob Estes of Fayetteville elected the new ArkBar President-Elect Designee Bob Estes of Fayetteville is the new PresidentElect Designee of the Arkansas Bar Association.

A United States Army Veteran, Estes earned a BSBA, MBA and JD from the University of Arkansas Fayetteville.

Mr. Estes joins the Association’s leadership track composed of President Brian Rosenthal, President-Elect Paul Keith, and Immediate Past President Suzanne Clark. Mr. Estes will assume the office of President-Elect at the conclusion of the June 2020 Annual Meeting and become President at the June 2021 Annual Meeting.

Mr. Estes is a solo practitioner in Fayetteville who has long served the association in its efforts to advance the administration of justice. His service has included YLS Executive Council, House of Delegates (Tenure), Executive Council and Board of Governors. He is currently serving a third term on the Board of Governors and is the chair of the Re-Districting Task Force and the Practice Closure Task Force. He has chaired the PAC Executive Committee and the Legislation Committee, for which he was awarded a Golden Gavel. He is a Fellow of the Arkansas Bar Foundation which has honored him with the Arkansas Bar Foundation writing award.

Mr. Estes has served in three cases as a Special Associate Justice on the Supreme Court of Arkansas. He currently serves on the Arkansas Supreme Court Committee on Civil Practice. He has been a member of several Fayetteville city and community boards and commissions.

Committee Appointment Applications Now Accepted at mx.arkbar.com/FORATTORNEYS/ Committees/committeeApplication.aspx

Vol. 55 No. 1/Winter 2020 The Arkansas Lawyer

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2020 LIVE SPRING CLE CALENDAR

26-28 Feb. 6 march

59th Annual Natural Resources Institute

12-13 march

Civil Rights Law Conference 43rd Annual Labor & Employment Law

2-3 april

24th Annual Debtor/Creditor Law

24 april

24th Annual Environmental Law

Construction Law Conference

On-Demand CLE 30 april1 may

Check out our extensive library of one-hour seminars you can watch anytime anywhere. $49 Members/$69 Non-Members

WATCH FOR BROCHURES, REGISTRATION, FULL AGENDAS & MORE EVENTS @ WWW.ARKBAR.COM 6

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PRESIDENT’S REPORT

THE BAR IS FOR SERVICE, FOR GOOD AND FOR !*

By Brian Rosenthal Please run for our new Board of Trustees; see page 18. Please vote on our Redistricting Task Force’s amendment to the constitution; see page 19. Please submit your Legal Hall of Fame nominating application by March 16, see page 52. *Thanks to staff member Kristen Frye, who turned in the best-completed slogan. The Bar is for Service, for Good and for YOU! THE BAR IS FOR SERVICE. Proferred Exhibit 1. Please see our article on Page 30 describing our service theme for this year as captured by the Inaugural Public Service Academy.

Proferred Exhibit 2. The theme for this year’s reimagined Annual Meeting is “Making a Difference; Lawyers in Service to Clients, Communities, and the Profession.” Co-chairs Joe and Cindy Kolb have put together a lineup of speakers including real-life examples of how we as lawyers can offer our unique skills in service to others and make a profound difference for our clients, our communities and our profession.

We are excited to announce this year’s Annual Meeting will include some changes designed to offer a more intimate and personal feel, with spaces to relax and catch up with friends, extended conference-wide breaks and an expanded list of social events.

THE BAR IS FOR GOOD. Proferred Exhibit 3. This item has double meaning. We need your membership for good—as a staple of our profession we need to use our diversity to create a strong, unified voice for our profession.

Proferred Exhibit 4. Our committed volunteers act in so many positive ways.

Promoting justice—helping represent veterans and the underrepresented; serving on our boards, our task forces, in our sections, on committees, as legislative witnesses; and in myriad community roles.

THE BAR IS FOR YOU. Proferred Exhibit 5. The staff, leadership and volunteers are at work for you. Would you like to be more involved? E-mail our 123rd President, Paul Keith, who will soon begin his appointment process at: pwk@gibsonkeithlaw. com.

Proferred Exhibit 6. Chaired

by Jeffrey McKinley, a creative group including firm marketing and public relations professionals Heide Harrell and Heather Haywood and a lay artist Lange Cheek are working with Mangan Holcomb Partners to help us design a new logo that reflects our progressive, inclusive, diverse association. Bar members Mark Mayfield, Nicole Winters and David Wilson join in this creative process.

Proferred Exhibit 7. Please consider running for one of our new 60 Board of Trustees positions. Your application is due March 31st and elections will commence in April.

Proferred Exhibit 8. We stand together to serve our profession.

Our Jurisprudence and Law

Reform Committee (chaired

by Jamie Jones and Sean Keith) and our Legislative Committee (chaired by Professor Lynn Foster) with key staff liaison Jay Robbins propose, analyze and consider legislation impacting the profession and public. The Legislation Committee reviews every bill and resolution for its impact on you.

Proferred Exhibit 9. Our benefits are for you. Find them at www.arkbar.com/for-attorneys/ membership.

Our Bar is for Service, our Bar is for Good and our Bar is for You—help us serve you for good!

Our successful Mid-Year Meeting required many volunteer hours. Please take time to thank our Mid-Year planners when able.

They are: Chair Sarah Jewell; Immigration Law Kathleen McDonald; Family Law Angela Mann and Leslie Copeland; Probate & Trust Dan Young and Section Chair Dee Davenport; Elder Law Steven McClelland, Jennifer Glover and Caroline Currier.

Finally, the winner of our cartoon contest is shown on page eight. Send a caption for our next cartoon by April 15, 2020.

Meet three members of our staff. The newest member of our Association’s staff, Cynthia Barnes, Office and Data Administrator, will celebrate her first anniversary in February.

She assists with CLEs and is the

Brian Rosenthal is the President of the Arkansas Bar Association. He is a member of Rose Law Firm in Little Rock. first and last person you will see on entering and leaving the Bar Center. She is the mother of twin daughters and, according to her unbiased opinion, Grammy to the two most adorable grandsons known to humankind. A selfproclaimed foodie, she unselfishly makes herself available for taste testing family, friends and associates’ dishes. Her interests are varied: reading, cooking, music, etc., but has yet to find a true passion. However, if or when she does, she has agreed not to Tweet or post it on Facebook.

Yan Chen has been the Finance Director of the Bar Association for four years. She is from China. She lives in Conway with her husband and sons. She enjoys running, painting, and gardening and serves as Vice President of the Arkansas Chinese American Association and committee member of Little Rock Chinese School.

Alexis Teal serves as the Association’s data integrity specialist. She oversees the association management software, data analytics, and implementation of webinar programming, and can be found behind the keyboard on the Association’s social media outlets.

Above all, she loves problemsolving. She is married to her high school sweetheart, Rich, and they reside in Little Rock with their two sons, Cannon (16) and Aiden (13), three dogs, and two cats. 

Vol. 55 No. 1/Winter 2020 The Arkansas Lawyer

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- Cartoon Caption Contest Thank you to all who submitted clever captions for the cartoons below. The artist, John Deering, chose the winners. From our clown contest with West Virginia, the best overall winner was from WV and will receive a case of McClard’s bbq sauce (“Your Honor, may I approach the witness?”).

Arkansas member Timothy J. Anderson had a similar entry, and he and Mike Mullally will also receive McClard’s bbq sauce (thanks McClard’s!) #1 “Your honor I request permission to publish exhibit 3.14 by placing it upon the face of the witness.”

-Mike Mullally #2 “But there were eleven other occupants in the vehicle.”

-Paul Keith Honorable mention: “With all due respect, Your Honor, how can we certify this witness as an expert without a proper cross examination?!” -Greg Northen

“ When asked to do the office bulletin board, Karen decided to create a diagram of the Oxford comma rule.”

-Kristina Farmer, Bowen 3L, Student Body President and 2020 JD/MPA Candidate

➮ Please help us come up with captions for this new cartoon. Send your captions to Anna Hubbard

by April 15, 2020, at ahubbard@ arkbar.com. The winners’ captions will be shown in our next magazine.

Next caption due April 15!

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The great work of the members of the Young Lawyers Section can be found throughout this issue. ArkBar is grateful to its almost 1,200 YLS members who keep the association moving forward. They are the future of the association!

HATS OFF TO YLS! Thank you to Sarah Jewell for chairing the 2020 MidYear Meeting along with the program planners listed on page 7.

Congratulations to Kristina Farmer for having a winning caption for the cartoon contest!

Read David Biscoe Bingham’s article on the Uniform Directed Trust Act on page 10.

Rachel Hildebrand coauthored an article on Amendment 80 on page 22.

Congratulations to the new attorneys listed on page 5 who have joined law firms and to the young lawyers listed on page 31 who just completed the Public Service Academy, and the CLE speakers listed on page 40!

YLS Nominating Petitions are due March 31, 2020, for these positions: 1. Chair-Elect 2. Secretary-Treasurer 3. At-Large Representative 4. District A Representative (Northwest Arkansas) 5. District B Representative (Pulaski County) 6. District C Representative (Everywhere Else)

YLS REPORT

AND THEY’RE OFF!

By Chris Hussein Chris Hussein is the Interim Chair of the Young Lawyers Section. He is a staff attorney with Legal Aid of Arkansas, Inc. The Young Lawyers Section ended 2019 with a bang hosting a couple of events in the month of November. On November 7, YLS held a record-sealing clinic at Genesis Church in Fayetteville.

YLS partnered with the Genesis Church, Legal Aid of Arkansas, Inc., and the Washington County Bar Association. At our record-sealing clinic we were able to assist 26 different individuals in the preparation of 134 different documents. In providing these documents our volunteer attorneys and law students gave the individuals what they needed to have their record sealed. By having their record sealed the individuals will have greater access to jobs and housing options that they previously wouldn’t have had.

Later that month on November 21, YLS teamed up with the Washington County Bar Association to host a Young Lawyers Section happy hour.

The happy hour was held at Pinpoint in Fayetteville, which is a pinball bar. There was a good turnout as about 20-30 young lawyers from the area attended and had a great time.

The month of February held even more big things for YLS. For the most part, February revolved around the MidYear Meeting. YLS hosted a reception on February 6 at Flying Saucer in Little Rock. We

had a huge turnout of around 80 people with a great night of conversation, food and drinks.

YLS had the opportunity to co-sponsor the 19th Amendment Traveling Exhibit through the American Bar Association. The six-banner free-standing exhibit featured historic photos and artifacts and details the story of the battle for ratification and outlines the challenges that remain. Attendees at the meeting enjoyed the exhibit on display during the Mid-Year Meeting.

The exhibit spent time at each of the state’s law schools while it was in Arkansas.

As we look forward to the Spring YLS has some great things coming up. We will be hosting our annual Wills for Heroes clinics this Spring on Saturday April 18th from 9 AM to 1 PM. We will do them at the same locations as last year, the Access to Justice Center in Little Rock and Good Shepherd Lutheran Church in Fayetteville.

Keep an eye out for information about signing up to volunteer!

We are also working on another happy hour or two and considering other ways to serve our communities.

YLS is in the final stages of wrapping up our Local Practice Guidebook project. This will be a great resource for basic court information such as hours, location and the clerk’s name; for

any filing specifics the clerk’s office may have; and other information that makes the clerk’s job easier and deals with any preferences the clerk may have.

We have also begun our project updating the Statewide Disaster Manual. Many YLS members have graciously volunteered their time and efforts to help in the revision of this manual. This manual, once complete, will be a wonderful resource in times

of natural disaster for not only attorneys, but anyone who may be in need. This manual will outline typical issues that arise during disasters, what resources are available to disaster victims, and in some cases how to handle the issues that arise.

I am so excited for YLS to start off 2020 with a bang! Make sure to keep an eye on the YLS Facebook page for upcoming events and announcements! 

Thank you to YLS members for assisting in a recordsealing clinic on November 7. Watch for your volunteer opportunity coming soon with the Will for Heroes events.

Vol. 55 No. 1/Winter 2020 The Arkansas Lawyer

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ARKANSAS ENACTS A VERSION OF THE UNIFORM DIRECTED TRUST ACT: RELIEF FOR “DIRECTED TRUSTEES” BEGINS IN 2020

By David Biscoe Bingham

David Biscoe Bingham practices with Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C., working as counsel in the firm’s tax department.

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Being a trustee means complying with the highest applicable standard of duty under the law—fiduciary duty. A person who stands in a fiduciary relationship over another person cannot act, or fail to act, in a way that harms the beneficial interests of the fiduciary’s charge.

(This “charge” can be called a ward, beneficiary, or many other things depending on the specific office of the fiduciary.) This article, in dealing with the Uniform Directed Trust Act (the “Uniform Act” or the “Act”), will focus on the fiduciary relationship between trustees, nontrustees, and the beneficiaries of a trust.

In recent years, it has become more common for trusts to grant multiple parties various powers over trust property. Of course there is still a trustee, owing the classic fiduciary duty to the beneficiaries. But now, trusts increasingly provide for non-trustees (often called “trust protectors” or “trust directors”) to have power over some aspect of trust administration—such as the trust’s investment strategy or the management decisions for a family business owned by the trust. Increasingly too, trust beneficiaries are requesting that non-trustees be given responsibility for some aspect of trust administration, and sometimes they even want to modify the trust to allow for such an approach. This all stands in contrast to the traditional approach of centralizing trust power, with its attendant fiduciary duty, in one trustee.

When these non-trustees exercise their power as non-trustees, to whom do they owe fiduciary duty? Do they owe any fiduciary duty?

What if the trustee disagrees with the non-trustee’s decision or believes it could harm the beneficiaries? Not to mention the instances where

trustees and non-trustees have been sued by beneficiaries for the bad investment decisions or improper utilization of trust assets by a non-trustee.1 Sometimes the beneficiaries actually win these lawsuits.2 Understandably then, there needs to be some clarity in the law for situations where a trust instrument grants trustees and non-trustees various powers over trust property, or where a trust has beneficiaries that insist on keeping the same investment manager around as a non-trustee.

Enter the Uniform Act. First introduced by the Uniform Law Commission in 2017, the Uniform Act is designed to solve the problems that arise where the trust instrument itself grants powers to a third party other than the trustee, and that third party non-trustee (who is termed a “trust director” under the Act) exercises (or fails to exercise) those powers. Since being introduced, the Uniform Act has been adopted by 10 states3 in multiple regions of the country.

The Arkansas Legislature, via Act 1021 of the 2019 Regular Session, adopted Arkansas’ version of the Act (the “Arkansas Act”) with an effective date of January 1, 2020.

The Arkansas Act tracks the Uniform Act almost verbatim except for two minor differences and one major difference. The Act contains 20 sections; but, as is common in all the uniform acts, some of these sections are technical provisions. In the Uniform Act, Sections 2, 3, 5-11, 13, 15, & 16 are the substantive sections. The same is true in the Arkansas Act, but the corresponding sections bear their final codified section numbers as set out in the Arkansas Code.

Section 2 is the first substantive section and contains the definitions used in the Uniform Act. These definitions contain some new innovations and clarifications to address the difficult problems mentioned above.

For instance, Section 2(1) of the Uniform Act expands “breach of trust” to cover trust directors, as well as trustees, who violate any duty imposed on them by the terms of the trust.

With this expanded definition (as well as other provisions in the Act) trust directors who exercise their powers under a trust now owe a fiduciary duty to the trust beneficiaries in the exercise of those powers, the same as if those trust directors were serving as trustees themselves.

Another key definition is found in Section 2(5) of the Act. This provision defines a “power of direction” as any power granted by a trust instrument to a person who is not serving as trustee when he or she exercises

the granted power. Before you start thinking about how this would work with powers of appointment and the trust grantor’s power of revocation, Section 2(5) excludes these, and a list of other powers in Section 5(b), from being powers of direction. With this broad and innovative definition, the Act recognizes what most drafters know and some legislatures eventually discover—there is always some way to create a new power in a trust.

Section 2(8) expands the definition of “terms of a trust” to include not just the express written words of the trust, but the meaning of a trust as established by subsequent court orders and non-judicial settlement agreements. Both court orders and non-judicial settlement agreements are authorized under the Uniform Trust Code4 and are increasingly common ways in which trusts are modified from the grantor’s original written direction.

Section 2(9) defines “trust director” to mean any person who is granted a power of direction, by the terms of a trust, exercisable as a non-trustee. Combined with the expansive definition of a power of direction in Section 2(5), the only limits to creating a trust director via the terms of a trust are: 1) the drafter’s imagination, 2) making sure that person is not a trustee already, and 3) Sections 5(b), 6, and 7 of the Act, which will be discussed shortly.

Section 3 clarifies that the Act only applies to actions which are taken after the Act’s effective date,5 where the trust has its principal place of administration in the enacting state, or to actions taken after a trust has moved its principal place of administration to the enacting state (subsequent to the effective date, of course). Section 3(b) provides two “safe harbors.”6 These “safe harbors” are objective facts that, when added to a trust stating its principal place of administration, conclusively establish that principal place of administration. This is the first area in which the Uniform Act and the Arkansas Act part ways—the Arkansas Act drops the safe harbor for trust directors.

Section 5(b) contains an important list of exclusions from the “power of direction” definition found in Section 2(5). These exclusions are: powers of appointment, power to appoint or remove a trustee or trust director, power of a grantor to revoke the trust, power of a beneficiary to affect his or her own beneficial interest, and power given to a non-fiduciary for tax purposes.

“What is certain is that directed trustees in Arkansas had a good start to 2020.”

The drafters of the Uniform Act made the commonsense choice to exclude these powers because each power has its own accumulated law and including these powers as “powers of direction” (thereby turning their exercisers into trust directors) would have created worse problems than the Act was supposed to solve. For instance, what if a grantor, desiring to revoke his or her trust, was then determined to be a trust director? This would mean he or she owed a fiduciary duty to the beneficiaries (all of them) in revoking the trust. This result flies in the face of current law and would be a serious disincentive for any grantor desiring to create a trust in the first place.

Section 6 establishes the boundaries for any possible power of direction that a trust instrument could grant. Those boundaries are…pretty much anything a trust can be created for in the first place (and that a drafter can come up with), as long as it’s not listed in Section 7. (The drafting committee did include a list of “contemplated powers” in the comments to Section 6, which are some of the common powers given to the typical trust director.)7 Section 7 contains two important policy areas that all powers of direction (and thereby trust directors) are subject to—Medicaid payback and state regulation of charitable trusts. Although not stated in the official comments, it is likely this section was included (at least in part) to check the enterprising drafter who may attempt to grant a trust director power to quash a Medicaid payback or charitable notice provision. Other than these two areas, basic trust formation law, and the list of excluded powers in Section 5(b), there is no limit on the creativity of trust drafters to design new powers of direction under the Act.

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Section 8 contains one of two cornerstones in the Uniform Act. Under this section, a trust director, in the exercise or nonexercise of his or her power of direction, has the same fiduciary duty (and thus liability) to the beneficiaries that a trustee would in a similar position under current law. This section is where the Act expands the fiduciary duties owed to the beneficiaries to all trust directors, the same as trustees. Section 8(b) is a notable carve-out. Under this section, fiduciary duty and liability do not attach to a healthcare professional acting within the course and scope of his or her healthcare profession, unless the terms of the trust provide otherwise. The comment to this section conveys the drafting committee’s concern that a healthcare professional might decline to serve as a trust director if he or she would be exposed to a fiduciary standard in performing healthcare work.8 The addition of the “terms of the trust” clause means that any healthcare professional asked to serve as a trust director would be well-advised to read the trust first.

Section 9 is the other cornerstone of the Act and where the major difference between the Uniform Act and the Arkansas Act occurs. The Arkansas Legislature declined to adopt the Uniform Law Commission’s “willful misconduct” standard for a trustee (termed a “directed trustee” when the nontrustee trust director is, well, directing that trustee). Remember, under the Uniform Act a trust director now owes a fiduciary duty to the beneficiaries, but where does this leave the “directed trustee” while the trust director is acting? The Uniform Law Commission considered the various states’ standards and finally decided that as long as the trustee did not engage in willful misconduct with respect to a trust director’s action, the trustee should be protected from liability for the harmful actions of the trust director. This is the approach that is used in Delaware,9 Illinois, Texas, and Virginia, with Delaware’s experience and approach particularly influencing the Commission.10 Of course, this approach would still leave a core of fiduciary duty, with its attendant liability (the key word), in the “directed” trustee.

Directed trustees have reason to feel even less nervous in Arkansas. Although they must take reasonable action to comply with a properly acting trust director, under the Arkansas Act’s version of Section 9,11 unless the terms of the trust provide otherwise, the directed trustee is not liable for: 12

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1. Any loss that results directly or indirectly from any act taken or omitted as a result of the reasonable action of the directed trustee to comply with the direction of the trust director or the failure of the trust director to provide consent; and 2. Whenever a directed trust reserves to a trust director the authority to direct the making or retention of any investment, to the exclusion of the directed trustee, […] any loss resulting from the making or retention of any investment under such direction.

Arkansas’ codified Section 109(b)12 provides added protection. Under it, unless the terms of the trust provide otherwise, any actions the directed trustee takes to comply with the directions of a trust director, if those directions are within the scope of that trust director’s powers, are considered administrative actions. Administrative actions, under the language of Section 109(b), do not cause the directed trustee to participate in or accept any fiduciary responsibility for the actions of the trust director. The summary is, under the Arkansas Act’s version of Section 9, the directed trustee isn’t liable for any loss to the trust beneficiaries when a trust director is properly exercising his or her power, and the directed trustee’s actions following a trust director’s direction don’t carry with them any fiduciary duty to those trust beneficiaries (which means no fiduciary liability either).

With this Section 9 as enacted in Arkansas, if a trust director is involved, there really isn’t liability exposure for a directed trustee. But what about the ability to vary that liability exposure in the terms of the trust? This is where Arkansas’ codified Section 109(c)13 comes in.

Section 109(c) requires any party seeking to hold a directed trustee liable under this section to prove the matter by clear and convincing evidence—the highest evidentiary standard in civil law. Of course, since Section 109(a) already plainly provides that the directed trustee is not liable, this provision only kicks in where a trust’s terms expose the directed trustee to liability by overriding the default provisions found in 109(a). Clearly, there was reason for any directed trustees in Arkansas to have had a Happy New Year. The only thing they now have to watch out for, under the Arkansas Act, is the wily drafter or grantor who attempts to hold them liable via the trust instrument itself. And if such an instrument should slip

through and expose the directed trustee, the (potentially) harmed beneficiaries of such a trust still have a high threshold to clear.

With this major change to the text of the Uniform Act as enacted here, Arkansas really does hew closer to states like Missouri,14 New Hampshire,15 South Dakota,16 Nevada, and Alaska that do not maintain any “core of liability” in the directed trustee. In fact, Arkansas’ codified Section 109 borrows quite closely from the language of the Missouri statute. Further, the “clear and convincing evidence” bar is also found in Missouri, New Hampshire, and South Dakota.

So, although Arkansas is considered a state that has adopted the Uniform Act,17 in practice, it really has the “no duty, full reliance” standard adopted by Missouri, et al. The Uniform Law Committee considered this approach, but ultimately rejected it, as the Committee felt the directed trustee was still a “fiduciary” who had some minimum level of continuing duty, even while a non-trustee was exercising powers granted by the trust.18 Sections 10 and 11 of the Uniform Act deal with the flow of information between the trustee, the trust director, and the beneficiaries. Section 10 also contains the last difference between the Uniform Act and the Arkansas Act. Under Section 10, the trustee and trust director are supposed to share information, and each has no liability for any breach of trust as long as the breach resulted from reliance on the information of the other. The Uniform Act added “unless by so doing the trustee (or trust director) engages in willful misconduct.” Arkansas declined to adopt this language,19 consistent with its choice against the Act’s willful misconduct standard.

Section 11 straightforwardly provides that the trustee and trust director do not have a duty to monitor each other or report to the beneficiaries if they believe anything to be amiss with the other’s actions. It further provides that if the trustee or the trust director do monitor or report on each other, by so doing they do not assume any fiduciary duty.

This provision seems necessary to prevent a plethora of “you should have told me” arguments and essentially tear down the liability shield the Act creates between trustees and trust directors for the actions of the other.

Practically, however, it has now shifted the risk for failing to stay informed. Once again a version of the old common law adage applies: “Let the beneficiary beware.”

Sections 13 and 16 conform the office of trust director to the Uniform Trust Code,20 while Section 15 provides that any person who accepts appointment as a trust director is submitting himself or herself to the personal jurisdiction of the courts of the enacting state for any matter related to the exercise of his or her powers or duties. Out-of-state investment advisors who happen to read this article and think they are safe so long as they administer the trust’s investments from their office might want to take note.21 The most controverted issue addressed in the Act was the fiduciary standard for a directed trustee. Under the Restatement,22 Uniform Trust Code,23 and prior Arkansas law24 (for actions before December 31, 2019), a directed trustee has to follow a trust director’s directions unless the action would be “manifestly contrary to the terms of the trust” or the trustee knows the action would constitute “a serious breach of fiduciary duty” that the trust director owes to the beneficiaries. This standard has been unpopular with most of the states and creating an alternative was one of the reasons the Uniform Act was introduced.

Arkansas has adopted the Uniform Act but, somewhat ironically, adopted the standard for directed trustee liability that the Uniform Law Committee rejected. Only time will tell if this standard is the better one for beneficiaries than the standard proposed in the Uniform Act. What is certain is that directed trustees in Arkansas had a good start to 2020. Hopefully, the standards set forth in the Arkansas Act, and by Uniform Act overall, will create greater certainty in this area of the law. And, by so doing, create more opportunity for trust grantors and drafters to incorporate powers of direction into their trusts.

Endnotes: 1. Guinan v. Block, No. HHDCV126041243S, 2015 WL 601356, (Conn. Super. Ct. Jan. 23, 2015); Robert T. McLean Irrevocable Tr. v. Patrick Davis, P.C., 283 S.W.3d 786 (Mo. Ct. App. 2009).

2. Rollins v. Branch Banking, Tr. Co. of Va., 56 Va. Cir. 147 (2002).

3. Arkansas, Colorado, Connecticut, Georgia, Indiana, Maine, Michigan, Nebraska, New Mexico, & Utah.

4. As adopted in Arkansas, Ark. Code Ann. § 28-73-101 et seq.

5. In Arkansas the effective date is January 1, 2020.

6. Safe Harbor 1—the trustee’s principal place of business is in the enacting jurisdiction, or the trustee is a resident of the enacting jurisdiction. Safe Harbor 2—the trust director’s principal place of business is in the enacting jurisdiction, or the trust director is a resident of the enacting jurisdiction.

7. Uniform Directed Trust Act § 6 cmt. (2017). Some of the more notable powers listed are: The power to direct investments; the power to modify, reform, terminate, or decant a trust; the power to change the principal place of administration; and the power to determine the capacity of a trustee, grantor, director, or beneficiary of the trust.

8. Uniform Directed Trust Act § 8 cmt. (2017).

9. Del. Code ann. tit. 12, § 3313.

10. Uniform Directed Trust Act § 9 cmt. (2017).

11. 2019 Arkansas Laws Act 1021, § 5, Ark. Code Ann. § 28-76-109.

12. Id. 13. Id. 14. Mo. Ann. Stat. § 456.8-808.

15. N.H. Rev. Stat. Ann. § 564-B:121205.

16. S.D. Codified Laws § 55-1B-2.

17. Uniform Law Commission−Directed Trust Act Enactment: https://www.uniformlaws.org/committees/community-ho me?CommunityKey=ca4d8a5a-55d7-4c4 3-b494-5f8858885dd8 (last accessed October 31, 2019).

18. Uniform Directed Trust Act § 9 cmt. (2017).

19. 2019 Arkansas Laws Act 1021, § 5; Ark. Code Ann. § 28-76-110(c) & (d).

20. As enacted in Arkansas, Ark. Code Ann. § 28-73-101 et seq.

21. See Matter of Beatrice B. Davis Family Heritage Tr., 133 Nev. 190, 394 P.3d 1203 (2017).

22. Restatement (Third) of Trusts § 75 (2007).

23. Uniform Trust Code § 808 (2000).

24. Ark. Code Ann. § 28-73-808 (as in effect prior to January 1, 2020). 

ANDERSON, MURPHY & HOPKINS NOW OFFERING MEDIATION SERVICES David Littleton 501-210-3610

David Littleton is a licensed mediator with over 20 years’ experience in civil litigation cases in Arkansas with emphasis on medical malpractice, professional malpractice, nursing home litigation, property and casualty defense, and insurance coverage matters.

Vol. 55 No. 1/Winter 2020 The Arkansas Lawyer

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NAVIGATING THE UNCHARTED COURSE OF THE ELECTRONIC APPEAL PILOT PROJECT

By Kyle E. Burton and Paul Charton

Burton

Charton

Kyle Burton and Paul Charton are Appellate Review Attorneys at the Arkansas Supreme Court.1 14

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I

f your latest journey through circuit court left your client bound to an unfavorable judgment, then you are probably considering whether an appeal is a viable escape plan. Until recently, there was only one route to an appeal. Even if you are comfortable taking that path, the time and expense of preparing the abstract and addendum probably figures into your viability analysis. Now you have another option. Much to the pleasant surprise of appellate practitioners, the Arkansas Supreme Court recently proposed what are probably the most significant changes in appellate practice since 1885—adoption of electronic appeal records and elimination of the abstract and addendum.2 The proposed changes are currently undergoing testing as an optional “pilot project.” The authors hope the pilot project demonstrates efficiencies not only for litigants, but for the appellate courts as well. It is obvious that relieving lawyers and their clients of the onerous burden of converting trial transcripts to first-person narrative form and copying voluminous portions of appeal records will save them time and money. Less obvious is whether the change will be efficient for the appellate judges.

Certainly, one could imagine that the success of the project, from an appellate judge’s perspective, may be whether the new system leads the court to relevant portions of the record in a manner that is at least as efficient, if not more so, than the abstract and addendum regime. That is one goal of the pilot-project’s rules and why practitioners’ careful attention to them is vital to the success of the project.

So, for now, you have an option. You can choose the familiar, but more expensive, paper route, or you can navigate the new, yet relatively uncharted pilot-project course that will hopefully save you and your clients some time and expense. The authors hope you choose the latter; therefore, we offer to guide the voyage. Together, perhaps we can help send the archaic abstract and addendum the way of the astrolabe.3 Let’s begin.4 I. The Gateway to the Pilot Project—The Electronic Appeal Record From our launching point at the unfavorable judgment, we set our sights on the gateway to the pilot project—the filing of an electronic appeal record. As the Supreme Court discussed, document digitization makes palatable the abandonment of the abstract and addendum.5 That is because, unlike with a single paper record, the judges and their staff can simultaneously work from electronic files, thus eliminating the need to reproduce the relevant portions of the record in the abstract and addendum for each judge’s use.6 As such, filing an electronic record is a prerequisite to participation in the pilot project.7

“So, for now, you have an option. You can choose the familiar, but more expensive, paper route, or you can navigate the new, yet relatively uncharted pilot-project course that will hopefully save you and your clients some time and expense. ” (a) Requesting the Electronic Record With the electronic appeal record coordinates plugged into our GPS, we set out to promptly inform the circuit clerk and court reporter of our request to prepare the record in electronic format. The sooner we do so, the better. The electronic appeal record is more than just a scanned copy of the paper record. There are new formatting requirements designed to make it easier for appellate judges to locate relevant materials.8 Circuit court staff are still learning these new requirements, and they will need time to get acquainted with them so they can prepare our record.

Not only do we promptly let circuit court staff know that we request the record in electronic format, we also take pains to alleviate any reluctance that the circuit court staff may have about preparing an electronic record. Despite the court’s straightforward command that, upon request, circuit court staff “shall provide the record in an electronic format,”9 some are nevertheless hesitant to do so. We chalk this up to fear of the new process. In an effort to dispel this fear, we offer a copy of the pilot-project rules and a sample electronic record to use as a guide.10 We also let them know that we would be glad to try to answer any questions that they may have, and that the staff at the Supreme Court Clerk’s office will review drafts of the record for compliance with format requirements.

Just like with paper records, once we have made payment arrangements for the record, we must file a notice of appeal within 30 days of the judgment.11 Although not required by the rules, we reiterate our request for an electronic appeal record in our notice of appeal so that the request appears in the record. We provide a courtesy copy of the

notice to the court reporter, and we calendar our deadline to file the appeal record at 90 days from the filing of the notice.12 We also calendar intermittent ticklers to remind us to check in with circuit court staff regarding the status of the record. (b) Format of the Electronic Record After several follow-up conversations with circuit court staff, we finally receive the electronic record with one day to spare before the deadline. We quickly review the record to ensure compliance with the pilot-project rules. The court reporter’s transcript is properly contained in a PDF file that is separate from the circuit clerk’s PDF file, and each file is smaller than 30 megabytes.13 Both files are searchable and include the requisite bookmarks that serve as an interactive table of contents, making it easy to view any document in the files with just one click of a mouse.14 Trial exhibits are properly scanned and located in the court reporter’s file behind the transcript.15 While the record is mostly compliant, we notice that the pagination of the circuit clerk’s file is adrift. More specifically, the complaint, rather than the cover of the record, is identified as page one.16 It is important for the cover to be page one for a couple of reasons. First, it will be much easier for the court to find in the record the documents we cite in our brief if the PDF’s pagination is consistent with the pagination printed on the documents in the record. Also, the Administrative Office of the Courts is developing a software application for the appellate courts’ use that recognizes citations in the briefs and creates hyperlinks from those citations to the electronic record. If the record is paginated incorrectly, that software will

not work properly. Thus, compliance with the new pagination requirements is vital to demonstrating efficiency for the Court, and we must have this issue corrected.

Upon contacting the circuit clerk about correcting the pagination, we learn that a key employee is on vacation and it may not be possible to correct the pagination before our 90-day deadline expires. What do we do?

The safest approach to this problem is to attempt to file the noncompliant record so as to avoid the procedural default that results if the record is not filed by the deadline, and the record can be corrected at a later date.17 (c) Filing the Electronic Record Filing the electronic record via eFlex is relatively simple when the aggregate size of the files is less than 100MB.18 Once we log in, we select “new case” and the appropriate appellate court. After we enter information about the parties and counsel, we then upload the appellate cover sheet. After that, we select the “Record Lodged $” document type and upload the first part of the circuit clerk’s portion of the record.19 For every file uploaded thereafter, we select the “Multipart Document” document type and upload the court reporter’s transcript. When we are finished uploading the files, we click the “submit the filing” button.

Sure enough, upon submitting the electronic record, the Supreme Court Clerk notices the pagination problem and informs us that it must be corrected before the record will be accepted for filing. She also documents the timely attempt to file the record and requests that we resubmit the corrected record, ideally within seven days. A few days later, the circuit clerk provides us the corrected record, and we successfully resubmit it to

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eFlex. When we receive an automated email informing us that the filing was accepted, we celebrate our passage through the gateway to the pilot project.

II. Briefing the Electronic Record Now that we have successfully traversed the gateway of the pilot project by acquiring and filing an electronic appeal record, we must prepare a brief. Since we are now able to bypass the abstract and addendum, the course is all downhill from here. However, at this point, it is helpful to take advantage of the bird’s-eye view this high ground offers as we prepare to blaze our trail through the new terrain. (a) Replacing the Abstract and Addendum As we prepare our descent, it is helpful to think about the function of the abstract and addendum as well as the tools that replace them. As with all appeals, to win, our appellant’s brief must demonstrate three vital things: (1) that we have successfully invoked the appellate court’s jurisdiction; (2) that the circuit court committed legal error; and (3) that the error justifies the relief we seek on appeal. But the court is not going to take our word for it. We must prove these things using the record, which is the only evidence the court is going to consider. In the past, we used the abstract and addendum to reproduce the relevant information in the appeal record as we attempted to prove jurisdiction and reversible error. As discussed above, reproduction of the record in the abstract and addendum is now unnecessary. Instead, the abstract and addendum are replaced by an updated jurisdictional statement and a more robust statement of the case and facts. The appellate court will be counting on us to use those new sections to direct its attention to the relevant portions of the record through the use of citations. Thus, complete and accurate pinpoint citations to the pertinent pages of the electronic record are essential. (b) The Importance of Citation Format Not only must the pinpoint citations to the record be complete and accurate, it is imperative that a specific citation format be used throughout the brief. The software application that the appellate court will likely be using to link the citations in our brief to the appellate record will not work correctly if the citation format is incorrect. All citations to the record should be placed between 16

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parenthesis. Any citation to the court reporter’s transcript should include the letters “RT” followed by the page number, and any citations to the circuit clerk’s portion of the record should include “RP” followed by the page number. For example, a citation to page 57 of the court reporter’s transcript should read “(RT 57).” A citation to page 35 of the circuit clerk’s file should read “(RP 35).”

When formatted this way, the application will recognize the text as a citation to the record and create hyperlinks from the brief to the referenced pages.20 Having familiarized ourselves with the new terrain, we delve into the record in search of adverse rulings that might support an appeal. As we do so, we gather a list of citations to all information of jurisdictional significance and a list of all information that will be necessary for the court to understand and decide the issues on appeal. A good rule of thumb is to include all information that we would have abstracted or included in the addendum if we were briefing the case under the rules for paper records. (c) General Organization of the Brief Once we zero in on our strongest points for reversal and have gathered our lists of citations to the record, it is time to prepare the brief. Under the pilot-project rules, our appellant’s brief must be consecutively paginated with the cover being page one so that the PDF’s pagination is in sync with the pagination printed on the documents.21 It should also be bookmarked and include a table of contents, a points on appeal section, a table of authorities, a jurisdictional statement, a statement of the case and the facts, an argument, a request for relief, a certificate of service, and a certificate of compliance with Administrative Order Number 19 and with the pilot-project’s word-count limitations.22 We start by drafting the points on appeal before moving on to the jurisdictional statement. (d) The Jurisdictional Statement The pilot-project’s jurisdictional statement is significantly revised. The outdated informational and jurisdictional statement form is no more. Instead, we are to provide a “brief statement, supported by citations to applicable authority and to the pages of the appellate record, demonstrating the appellate court’s jurisdiction.”23 Thus, we must prove to the court that we have timely perfected an appeal from an appealable order. Because

we are appealing from a final order under Rule 2(a)(1) of the Rules of Appellate Procedure-Civil, we cite that rule and identify the parties involved, the claims asserted, the orders disposing of each of the claims, the judgment, the notice of appeal, and the date the record was filed. For each, we pinpoint cite to supporting pages in the appeal record using the citation format discussed above. At the end, we indicate that we believe our case is appropriately filed in the Court of Appeals as we have no basis for Supreme Court jurisdiction under Supreme Court Rule 1-2. (e) The Statement of the Case and the Facts With the jurisdictional statement complete, we move on to the statement of the case and facts. Like with the jurisdictional statement, the statement of the case has undergone significant revision. No longer is it a device used to tell the court about the “nature of the case” and the “general fact situation.”24 Instead, this new statement of the case and the facts is more akin to the abstract in that it must include “all material factual and procedural information” that is “essential to understand the case and decide the issues on appeal.”25 This is where we must wade through the factual weeds and tell the court about the good, the bad, and the ugly in an impartial manner “without argument.”26 Nevertheless, as we draft our statement of the case and facts, we want to keep in mind that our goal is to prove that reversible error occurred. Thus, we certainly want to identify with specificity our pertinent motions and objections and the court’s rulings on them to demonstrate that we preserved the issues for appeal. And because we assert a challenge to the sufficiency of the evidence and an evidentiary error that is subject to harmless-error analysis, our case warrants a thorough summary of the evidence. Again, we pinpoint cite to supporting pages in the appeal record using the citation format discussed above. (f ) The Argument and Request for Relief Our next task is to prepare the argument.

Little has changed with respect to the rules regarding the argument except that we must now cite directly to the record rather than to the abstract and addendum.27 Thus, we arrange the argument according to the sequence of points on appeal, direct the court to the applicable authority and standards of

review, and argue that we are entitled to relief.

After the argument, we must conclude with a specific request for relief, and we therefore ask the court to reverse the judgment and dismiss appellee’s complaint, or, in the alternative, to reverse and remand for a new trial.28 (g) Word-Count Limitations With the bulk of the brief prepared, we enter the final stretch. This involves confirming and certifying that the brief is compliant with the pilot-project’s word-count limitations. For this, we use our word-processing software to count the words contained in the jurisdictional statement, statement of the case and the facts, the argument, and the request for relief. Combined, these sections can be no longer than 8600 words.29 Once that is complete, we prepare for landing by completing the cover, the table of contents, the table of authorities, the certificate of service, and the bookmarks to each section of the brief.30 After some final editing, our journey is concluded when we submit the brief to eFlex and receive email notification confirming that the brief is approved for filing.

III. Some Final Words of Encouragement Thank you for allowing us to take this journey with you through the uncharted course of the electronic appeal pilot project. We encourage everyone to give the pilot project a try and to provide comments and suggestions for improving the process.31 With your insights and careful attention to detail, perhaps the pilot project will demonstrate efficiencies for not just litigants, but for the appellate courts as well. That, in turn, will hopefully propel final adoption of the proposed rules and expand access to Arkansas appellate courts by decreasing the costs of taking appeals.

Endnotes: 1. Any opinions expressed in this article are those of the authors and not the authors’ employer. The authors can be reached by email at Kyle.Burton@arcourts.gov and Paul.

Charton@arcourts.gov.

2. See In Re Acceptance of Records on Appeal in Electronic Format and Elimination of the Abstracting and Addendum Requirements, 2019 Ark. 213 (per curiam).

3. The astrolabe is a medieval instrument that was “used to make astronomical measurements, typically of the altitudes of celestial bodies, and in navigation for calculating latitude, before the development of the

sextant.” See Astrolabe, Oxford Dictionaries, available at https://premium.oxforddictionaries.com/definition/english/astrolabe.

4. For purposes of this article, our hypothetical appeal is a civil appeal. However, the pilot-project is available for all types of appeals, including criminal appeals.

5. See In Re Acceptance of Records on Appeal in Electronic Format and Elimination of the Abstracting and Addendum Requirements, 2019 Ark. 213, at 4-6.

6. Id. 7. Id. at 1-3. Just like with paper records, the appellant’s attorney is responsible for acquiring and filing the electronic appeal record. However, the Court announced that it is exploring the feasibility of having circuit clerks transmit the record directly to the appellate court clerk via a more automated process. Id. at 6.

8. The pilot-project’s rules are located at pages 9-29 of the order and in “line-out, linein fashion” at pages 30-63. Id. at 9-63.

9. Id. at 2.

10. You may obtain sample electronic records and briefs by contacting the Supreme Court Clerk’s office or by visiting the Arkansas Judiciary’s website at https://www.arcourts. gov/courts/clerk-of-the-courts.

11. Ark. R. App. Pro.-Civ. 4(a) (2019).

12. Ark. R. App. Pro.-Civ. 5(a) (2019).

13. In Re Acceptance of Records on Appeal in Electronic Format and Elimination of the Abstracting and Addendum Requirements, 2019 Ark. 213, at 25. Had either the circuit clerk’s file or the court reporter’s file been larger than 30MB, it would have been necessary to divide them into separate files that are each less than 30 MB. If either portion is divided, the pagination of the latter files, including the PDF’s pagination, must continue from where the prior file ended.

14. Id. at 25.

15. Id.. at 26.

16. Id. at 9.

17. O’Fallon v. O’Fallon, 335 Ark. 229, 231, 980 S.W.2d 246, 247 (1998) (holding record timely filed where tendered to clerk before the 90-day deadline, returned to attorney for correction, and resubmitted to the clerk as corrected after the expiration of the 90-day deadline).

18. You should contact the Supreme Court Clerk’s office for filing assistance if the aggregate size of the record is larger than 100MB. 19. For felony appeals and other appeals that do not require the payment of a filing fee,

WANT TO PURCHASE MINERALS AND OTHER OIL/GAS INTERESTS. Send details to: P.O. Box 13557, Denver, CO 80201. the “Record Lodged” document type should be selected instead of the “Record Lodged $” document type.

20. The authors note that the software application is still under development and that the citation format could change in the future.

Therefore, we recommend contacting the clerk’s office to confirm the correct format prior to filing a brief.

21. In Re Acceptance of Records on Appeal in Electronic Format and Elimination of the Abstracting and Addendum Requirements, 2019 Ark. 213, at 14.

22. Id. at 14-16.

23. Id. at 15.

24. Sup. Ct. R. 4-2(a)(6)(2019).

25. In Re Acceptance of Records on Appeal in Electronic Format and Elimination of the Abstracting and Addendum Requirements, 2019 Ark. 213, at 15.

26. Id. 27. Id. at 16.

28. Id. 29. Id. at 17.

30. Id.. at 14.

31. You may email comments and suggestions regarding the pilot project to eROAcomments@arcourts.gov. 

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BE A PART OF THE NEW ARKBAR LEADERSHIP

!

1 3 h c r a M e u d s n o Petiti

The Association’s recent adoption of the new Constitution has resulted in some important changes to how our leadership is elected. The new Board of Trustees will be elected this spring. The election of the President-Elect Designee and Secretary will be included in the spring 2021 election cycle. The election of the Association’s Delegate to the American Bar Association’s House of Delegates remains unchanged as does that of the Young Lawyers Section’s leadership. See page 8 for the YLS positions. Contact Karen Hutchins for information on the Secretary, Treasurer and ABA Delegate positions.

Board of Trustees The Association’s membership voted to approve the governance restructure proposal, part of which merges the existing Board of Governors and House of Delegates into a single governing body made up of 60 trustees. The body will consist of 15 Trustee Districts, with four Trustees elected from each Trustee District.

Each of the initial positions are available for election. Article IV of the newly adopted Constitution outlines the responsibilities of the Trustees.

Trustees’ terms shall be staggered and at least one (1) Trustee shall be elected from each Trustee District each year. Members elected to the Board shall serve for a term of three years and shall assume office at the end of the Association’s Annual Meeting held following their election. The term will end at the conclusion of the Association’s Annual Meeting three years later (except for the 2020-2021 positions which will vary in terms of length from one to three years). A member of the Association who serves six years 18

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as a member of the Board of Trustees shall be given the status of Tenured Trustee. Tenured Trustees will be ex-officio members of the Board of Trustees with the right to participate in all proceedings but without the right to vote.

Officers The new Constitution’s Article III outlines the procedure for electing the Association’s Officers. The President, PresidentElect, President-Elect Designee and Secretary shall be elected by the membership of the Association and the Treasurer shall be elected by the Board of Trustees. The President shall appoint the Parliamentarian subject to ratification by the Board of Trustees.

Nomination petitions for these positions can be found at https:// www.arkbar.com/for-attorneys/elections. The deadline for filing a nomination petition is March 31, 2020.

NEW GOVERNANCE TRANSITION TIMELINE NOMINATING PETITIONS OPEN

NOW MARCH 31

FINAL BOARD OF GOVERNORS MEETING

APRIL 3-4 APRIL 15MAY 18

BALLOTS DUE FOLLOWED BY ELECTION RESULTS ANNOUNCED

FIRST BOARD OF TRUSTEES MEETING WITH ORIENTATION ON FRIDAY OF ANNUAL MEETING

NOMINATING PETITIONS DUE FOR BOARD OF TRUSTEES & YLS ELECTIONS —VOTING • TRUSTEE • CONSTITUTIONAL AMENDMENT

MAY 18 JUNE 10

JUNE 12

Arkansas Bar Association’s Governance Restructuring Proposal Passed with 90% Approval.

The Association’s membership voted to approve the governance restructure proposal, which includes incorporation as a non-profit.

The proposal includes the adoption of a revised, clear mission and merges the existing Board of Governors and House of Delegates into a single governing body made up of 60 Trustees. This Board of Trustees will consist of 15 districts. District boundaries will be established every six years and the Board of Trustees will meet four times per year, including at the Annual Meeting.

The House of Delegates met February 8, 2020, at the Mid-Year meeting in Little Rock and approved the creation of 15 Trustee Districts for this Spring’s election to the Inaugural Board of Trustees.

The House of Delegates also noted that Article V § 3 of the Association’s current constitution is inconsistent with the Association’s established practice of electing the president elect from the three Bar Districts. In an effort to preserve the rotation of the President elect and allow equitable representation for all members, the House of Delegates recommended that the membership vote on a constitutional amendment that allows more than five trustee districts to be included in a bar district.

The membership will vote on this amendment in the spring 2020 election.

FINAL HOUSE OF DELEGATES MEETING WEDNESDAY OF ANNUAL MEETING

Candidates must file for a Trustee seat by March 31, 2020.

The election for the Board of Trustees will occur between April 15 and May 18, 2020. The Board of Trustees will first meet at the 2020 Annual Meeting. Newly elected Trustees must plan to attend orientation scheduled at 2:00 pm on Friday, June 12, 2020, at the conclusion of the Association’s Annual Meeting.

The current Board of Governors will hold its final meeting in Fayetteville on April 3-4, 2020. The current House of Delegates will hold its final meeting in Hot Springs on Wednesday, June 10, 2020, during the Annual Meeting.

“Many thanks to all of the volunteers who have helped us coordinate this important transition to keep the association responsive to our members and relevant to the legal profession as we face the future,” said Executive Diretor Karen K. Hutchins.

For any questions, please contact Karen Hutchins at khutchins@arkbar.com.

Karen K. Hutchins, J.D., CAE, is the Executive Director of the Arkansas Bar Association.

Vol. 55 No. 1/Winter 2020 The Arkansas Lawyer

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A REPORT FROM THE 2019 NATIONAL CONFERENCE OF COMMISSIONERS ON UNFORM STATE LAWS

By J. Cliff McKinney II The Uniform Law Commission (ULC) held its 128th annual National Conference in Anchorage, Alaska, on July 11-18, 2019. Arkansas was represented by its commissioners, David Nixon, John Thomas Shepherd, and Cliff McKinney. Earlier in the year, Arkansas adopted two new uniform acts: the Uniform Protected Series Act (now Act 1611) and the Uniform Directed Trust Act (Act 1021).

The ULC’s rules for approving proposed uniform acts typically require consideration at two consecutive annual meetings. Following is a brief description of the acts that were approved on final reading this year.

Uniform Automated Operation of Vehicles Act The Uniform Automated Operation of Vehicles Act regulates important aspects of the operation of automated vehicles. This act covers the deployment of automated vehicles on roads held open to the public by reconciling automated driving with a typical state motor vehicle code. Many of the act’s sections—including definitions, driver licensing, vehicle registration, equipment, and rules of the road—correspond to, refer to, and can be incorporated into existing sections of a typical vehicle code. This act also introduces the concept of automated driving providers (ADPs) as a legal entity that must declare itself to the state and designate the automated vehicles for which it will act as the legal driver when the vehicle is in automated operation. The ADP might be an automated driving system developer, a vehicle manufacturer, a fleet operator, or another kind of market participant that has yet to emerge. Only an automated vehicle that is associated with an ADP may be registered. In this way, the Automated Operation of Vehicles Act uses the motor vehicle registration framework that already exists in states—and that applies to both conventional and automated vehicles—to incentivize self-

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identification by ADPs. By harnessing an existing framework, the act also seeks to respect and empower state motor vehicle agencies.

Uniform Electronic Wills Act The Uniform Electronic Wills Act permits testators to execute an electronic will and allows probate courts to give electronic wills legal effect. Most documents that were traditionally printed on paper can now be created, transferred, signed, and recorded in electronic form. Since 2000 the Uniform Electronic Transactions Act (UETA), which Arkansas adopted in 2001, and a similar federal law, E-SIGN, have provided that a transaction is not invalid solely because the terms of the contract are in an electronic format. But UETA and E-SIGN both contain an express exception for wills, which, because the testator is deceased at the time the document must be interpreted, are subject to special execution requirements to ensure validity and must still be executed on paper in most states. Under the new Electronic Wills Act, the testator’s electronic signature must be witnessed contemporaneously (or notarized contemporaneously in states that allow notarized wills) and the document must be stored in a tamper-evident file. States will have the option to include language that allows remote witnessing. The act will also address recognition of electronic wills executed under the law of another state. For a generation that is used to banking, communicating, and transacting business online, the Uniform Electronic Wills Act will allow online estate planning while maintaining safeguards to help prevent fraud and coercion.

Uniform Registration of Canadian Money Judgments Act The Uniform Registration of Canadian Money Judgments Act (“Registration Act”) creates an administrative procedure for the

registration and enforcement of Canadian money judgments in an enacting state. Once the Canadian judgment is successfully registered in the state, the judgment is enforceable in the same manner as a judgment rendered in that state. The Registration Act only applies to a Canadian judgment if it (1) grants or denies recovery of a sum of money; (2) is final, conclusive, and enforceable in Canada; and (3) its recognition is sought in order to enforce the judgment. The Registration Act supplements the Uniform Foreign Country Money Judgments Recognition Act (“Recognition Act”), which Arkansas has not yet adopted, by providing an alternative method to seeking recognition and enforcement of a foreign judgment. If a state has not enacted the Recognition Act, it may enact this Act at the same time it adopts the Recognition Act as a companion Act. The Registration Act offers an efficient alternative to filing a lawsuit to recognize and enforce a Canadian money judgment in the United States.

Uniform Athlete Agents Act Amendment The Revised Uniform Athlete Agents Act (RUAAA) updates the 2000 version of the act for the ever-evolving sports commercial marketplace and the increasing activity between athlete agents and student athletes. Arkansas currently has the 2000 version of the act, which the General Assembly adopted in 2001. The RUAAA protects the interests of student athletes, academic institutions, and athlete agents by regulating the activities of

J. Cliff McKinney II is a Managing Member of Quattlebaum, Grooms & Tull PLLC.

athlete agents. The 2015 revision updated the definition of “athlete agent”; required reciprocal agent licensing; created a central licensing process; enhanced notice requirements to educational institutions; and revised administrative remedies arising from damages resulting from improper athlete agent conduct. An Amendment to the Uniform Athlete Agents Act, approved in 2019, applies to changes that the NCAA made to its bylaws in August of 2018 to provide student athletes playing basketball with more freedom and flexibility to explore the possibility of going professional while retaining their college eligibility. Under the new NCAA bylaws, certified sports agents can cover limited expenses of prospective or enrolled college basketball players and their family for meals, hotel and travel in connection with the agent selection process. Because the NCAA bylaw changes were in conflict with the Athlete Agents Acts, the NCAA asked the ULC to amend the two Uniform Athlete Agents Acts so they will not conflict with the bylaw changes. The Section 14 Amendment was drafted to clear up the conflict; it was also drafted so that it applies beyond the current bylaws to ensure that the ULC will not have to go to state legislatures every time the NCAA broadens its bylaws.

The amendment does, however, set forth appropriate safeguards so that it only applies if the NCAA makes further changes.

Uniform Probate Code Amendments The promulgation of the Uniform Parentage Act (2017) has necessitated amendments to the Uniform Probate Code’s intestacy and class-gift provisions. The 2019 Amendments to the Uniform Probate Code provide a more consistent formula for determining intestate shares within blended families, remove outdated terminology, and incorporate the concept of de facto parentage. The intestacy formulae will also account for the possibility that a child may have more than two parents, and therefore more than two sets of grandparents. Arkansas has not adopted the existing Uniform Probate Code or the Uniform Parentage Act. You can find more information about each of these acts at www.uniformlaws.org. This website has a copy of each act along with supporting information. The Arkansas delegation is honored to represent our state at the Commission and is happy to assist with any questions. 

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645 CR 235, Eureka Springs, AR 72632 Vol. 55 No. 1/Winter 2020 The Arkansas Lawyer

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THE MERGER OF LAW AND EQUITY: 20 YEARS AFTER AMENDMENT 80

By Jim L. Julian and Rachel Hildebrand

Julian

Hildebrand

Jim Julian is a former President of the Arkansas Bar Association and chaired the campaign for the passage of Amendment 80. He is Of Counsel to the Barber Law firm. Rachel Hildebrand is an associate attorney at Barber Law Firm PLLC. 22

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Introduction & Background On November 7, 2000, commonly referred to as “a watershed event in the history of the Judicial Department of this state,”1 Arkansas voters approved Amendment 80, which modernized the judicial article of the Arkansas Constitution by eliminating courts of chancery, and by establishing circuit courts as the state’s trial courts of general jurisdiction, replacing the dual system which one lawyer had previously characterized as “a cumbersome relic which still breathes.”2 The practice of law has changed a great deal in the 20 years since, yet, due to size constraints, this brief article aims simply to address Amendment 80’s key components.

Prior to 2000, chancery courts were vested with jurisdiction over “all matters in equity,”3 meaning such matters as domestic relations, partition actions, disputes involving trusts, and requests for equitable remedies such as specific performance.4 A plaintiff in a chancery court was required to allege in his or her complaint that “irreparable harm” would be suffered unless equitable relief was granted.5 In contrast, circuit courts were “courts of law,” meaning they held “original jurisdiction in all cases where jurisdiction [was] not expressly vested in another court.”6 For example, it was “well established that an action for money damages [wa]s cognizable in law.”7 In order to successfully attack a circuit court’s jurisdiction, a party was required to demonstrate that another court, i.e., the chancery court, was vested with exclusive jurisdiction.8 The dual system led to frustration because parties could spend years litigating a case, only to have the appellate courts later hold that the action should have been tried in the other court. In 1992, the Arkansas Supreme Court aptly characterized the inefficiency of the dual system when it wrote, “We do not share our colleagues' view that four years of hard fought litigation must go for naught and these parties sent back to square one to begin anew.”9 In fact, at the time Arkansas voters approved Amendment 80, only three other states (Delaware, Mississippi, and Tennessee) still maintained the archaic dual system of law and equity.10 In these states, including Arkansas, the problem of jurisdiction was always present. For example, in Ark. State Game & Fish Comm'n v. Sledge, a circuit court granted an injunction to the plaintiff. On appeal, however, the Arkansas Supreme Court concluded that the circuit court, a court of law, “was wholly without jurisdiction to enjoin”

“The adoption of Amendment 80 formally changed Arkansas’ judicial selection method from partisan to nonpartisan elections.”

...

a party due to the separation of law and equity.11 Only courts of equity, or chancery courts, held the power to provide injunctive relief.12 Therefore, the Arkansas Supreme Court had no choice but to reverse and dismiss the case.13 Similarly, in another case, when the plaintiff sued in chancery court for specific performance of a contract, the chancery court could not award damages.14 The so-called “cleanup doctrine,” however, did provide some relief. Once a chancery court assumed jurisdiction over an action in equity, any ancillary legal matter could be disposed of under the “cleanup doctrine.”15 For example, in Towell v. Shepherd, the plaintiffs sought primarily injunctive relief, but nevertheless the chancery court was empowered to “decide all issues involved in the subject matter of the dispute,” as long as “the legal questions [were] incidental or essential to the determination of the equitable questions.”16 There was, however, no right to a jury trial under the cleanup doctrine, because the constitutional right to a jury trial did not extend to an equity case,17 and likewise there was no right to punitive damages in an equity case, even under the cleanup doctrine.18 In Stolz v. Franklin, the Arkansas Supreme Court held, “Certainly, one who appeals to a court of equity for relief waives the award of punitive damages as a matter of right.”19 Punitive damages resembled penalties, and equity did not enforce penalties.20 Furthermore, a defendant held a constitutional right to a jury trial on the issue of punitive damages, but a plaintiff in a court of equity had no right to a jury trial.21 Thus, the separation of law and equity sometimes led to peculiar results.

By contrast, today, a party before a circuit court may make “as many claims, legal or

equitable, as the party may have against an opposing party….”22 Accordingly, one of the fundamental purposes of Amendment 80 was to eliminate “[j]urisdictional lines that previously forced cases to be divided artificially and litigated separately in different courts.”23 Post-Merger Considerations Prior to the passage of Amendment 80 in 2000, similar efforts had been attempted, but defeated, in 1970, 1980, 1991, and 1995.24 Yet, even though success finally came in 2000, the passage of Amendment 80 came with “a whole host of issues, both theoretical and practical, concerning the form and structure of our court system.”25 Jury Trials One issue which soon arose was the question of the jury trial. In Arkansas, the right to a jury trial is constitutionally preserved for all matters at law.26 Thus, prior to Amendment 80, the right existed only in circuit courts (courts of law), not in chancery courts (courts of equity).27 Yet, Amendment 80’s merger of legal and equitable actions led to the question of whether mixed cases of law and equity would be presented to juries.

The Arkansas Supreme Court first addressed this topic in First Nat'l Bank of Dewitt v. Cruthis, where it held, “Amendment 80 did not alter the jurisdiction of law and equity. It only consolidated jurisdiction in the circuit courts. Therefore, matters that could be submitted to a jury for decision and matters that must be decided by the court remain unaltered.”28 Accordingly, the Cruthis court held that it was error to submit equitable issues to the jury.29

A few years later, the Arkansas Supreme Court again addressed the issue in National Bank of Arkansas v. River Crossing Partners, LLC.30 There, the circuit court submitted the following issues to a jury: (1) the amount due on the promissory note secured by mortgages and the security agreement; (2) whether bonds secured the notes and mortgages; and (3) whether the mortgagee fraudulently transferred real property.31 Historically, all of these claims were traditionally submitted to a judge in equitable proceedings. Emphasizing the importance of the historical analysis, the appellate court held, “In cases like the one before us, a circuit court must review the historical nature of the claims to determine whether they should be submitted to a judge as equitable matters or to a jury as legal matters. See Cruthis, supra. To that end, these equitable claims should have been tried before the circuit court instead of the jury.”32 Accordingly, as both Cruthis and River Crossing demonstrate, in cases with mixed law and equity issues, the appropriate procedure is for the jury to decide the legal issues, and for the court to subsequently decide the equitable issues.

Non-Partisan, Elected Judiciary The adoption of Amendment 80 formally changed Arkansas’ judicial selection method from partisan to nonpartisan elections.33 Although the current trend among states appears to be a movement toward the “Missouri Plan,”34 or a system under which a group of experts recommend potential judges to the governor, who then appoints one of the nominees, Amendment 80 retained the elected judiciary process, which continues to be the method by which Arkansas’ judges take the bench.35

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Division of Cases After Amendment 80, the circuit courts consisted of five divisions: criminal, civil, juvenile, probate, and domestic relations.36 Each circuit judge, however, was vested with the power to hear all five types of cases.37 The Arkansas Supreme Court preference is that cases be distributed by a “random selection of unrelated cases.”38 In the smaller and less populous judicial circuits, the trial judges hear all five categories of cases, and the cases are assigned entirely on a random basis.39 In the larger circuits, however, the Arkansas Supreme Court has permitted judges to divide the work on a basis that is not entirely random.40 For example, one judge may have a docket consisting of 80% criminal and 20% civil cases; a second may have 20% criminal, 60% civil, and 20% juvenile cases; the third may have 20% civil, 20% divorce, 20% probate, and 40% juvenile cases.41 Importantly, though, these divisions have nothing to do with subject matter jurisdiction. As stated above, unlike the system before merger, a circuit judge now has authority to hear all types of cases and to grant all types of relief.

In other words, a circuit court may exercise any act of jurisdiction that either a court of law or equity could have exercised prior to Amendment 80, and “the designation of an action as a specific type of action does not prevent a circuit court from hearing any matter within the court’s jurisdiction that is properly raised to the court.”42 Conclusion As one Arkansas Bar Association leader argued in promoting the successful campaign for Amendment 80, the amendment “kind of brings the courts into the 20th century”43 by “eliminating the artificial distinctions regarding a circuit court's jurisdiction.”44 The previous system, based on antiquated principles dating back to the Norman conquest of England,45 was “ill-suited to modern litigation,”46 and, thus, the enactment of Amendment 80 in 2000, and the subsequent unification of law and equity, does, indeed, represent “a watershed event in the history of the Judicial Department of this state.”47 Endnotes 1. In Re Implem. of Amend. 80, 345 Ark. App’x 664, 2001 Ark. LEXIS 706 (2001); First Nat’l Bank of DeWitt v. Cruthis, 360 Ark. 528, 203 S.W.3d 88 (2005).

2. Dalrymple v. Simmons First Nat’l Bank of 24

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Pine Bluff, 296 Ark. 534, 537, 758 S.W.2d 5, 6 (1988) (quoting the appellant’s argument); see also Ark. Const. amend. 80 § 6(A) (“Circuit Courts are established as the trial courts of original jurisdiction of all justiciable matters not otherwise assigned pursuant to this Constitution.”). Amendment 80 also established courts of limited jurisdiction, known as district courts, as of January 1, 2005, and permitted the continuation of city courts. Id. §§ 7, 19(B)(2).

3. Ark. Code Ann. § 16-13-304 (repealed).

4. Howard Brill, Chancery Courts Before the Merger of Law and Equity, Ark. Law of Damages, § 2:2 (Nov. 2018).

5. John J. Watkins, Law and Equity in Arkansas—Or, Why to Support the Proposed Judicial Article, 53 Ark. L. Rev. 401, 409 (2000).

6. Vanderpool v. Fid. & Cas. Ins. Co., 327 Ark. 407, 418, 939 S.W.2d 280, 286 (1997).

7. Daves v. Hartford Acci. & Indem. Co., 302 Ark. 242, 246, 788 S.W.2d 733, 735 (1990).

8. Id. 9. J.W. Reynolds Lumber Co. v. Smackover State Bank, 310 Ark. 342, 352, 836 S.W.2d 853, 858 (1992).

10. Morton Gitelman, The Separation of Law and Equity and the Arkansas Chancery Courts: Historical Anomalies and Political Realities, 17 U. Ark. Little Rock L.J. 215, 244 (1995).

11. 344 Ark. 505, 512, 42 S.W.3d 427, 431 (2001).

12. Id. at 512-513.

13. Id. 14. Arkansas State Highway Commission v. Rice, 259 Ark. 190, 532 S.W.2d 727 (1976).

15. “Mixed” cases, 2 Arkansas Civil Prac. & Proc. § 29:3 (5th ed.).

16. Towell v. Shepherd, 286 Ark. 143, 145, 689 S.W.2d 564, 565 (1985) (internal citations omitted).

17. Mitchell v. House, 71 Ark. App. 19, 26 S.W.3d 586 (2000) (pre-Amendment 80).

18. C. R. T., Inc. v. Brown, 269 Ark. 114, 118, 602 S.W.2d 409, 411 (1980).

19. 258 Ark. 999, 1009, 531 S.W.2d 1, 7 (1975) (internal citations omitted).

20. Howard Brill, Actions in Equity, Ark. Law of Damages, § 9:9 (Nov. 2018). See also Gardner v. Robinson, 42 Ark. App. 90, 854 S.W.2d 356 (1993) (plaintiff who proceeded in equity forfeited the right to seek

treble damages under trespass statute).

21. Howard Brill, Actions in Equity, Ark. Law of Damages, § 9:9 (Nov. 2018).

22. Ark. R. Civ. P. 18(a). Subdivisions (a) and (b) were after the passage of Amendment 80. The new language in subdivision (a) authorized joinder of claims whether “legal or equitable,” as does the corresponding federal rule. Amendment 80’s merger of law and equity removed any barriers to the joinder of legal and equitable claims in a single action. Previously, subdivision (b) stated that a trial court could “make appropriate orders affecting severance of claims and may transfer claims between courts of law and equity on appropriate jurisdictional grounds.” This provision was deleted after Amendment 80.

23. In Re Implem. of Amend. 80, 345 Ark. App’x 664, 2001 Ark. LEXIS 706, *2 (2001); Addition to Reporter’s Notes, 2001 Amendments to Rule 18 of the Arkansas Rules of Civil Procedure.

24. Larry Brady & J.D. Gingerich, A Practitioner’s Guide to Arkansas’s New Judicial Article, 24 U. Ark. Little Rock L. Rev. 715 (2002).

25. In re Implementation of Amendment 80: Admin. Plans Pursuant to Admin. Order No. 14, 2001 Ark. LEXIS 706, *4 (June 28, 2001).

26. Ark. Const. art. II, § 7.

27. John J. Watkins, The Right to Trial by Jury in Arkansas After Merger of Law and Equity, 24 U. Ark. Little Rock L. Rev. 649 (2002); Colclasure v. Kan. City Life Ins. Co., 290 Ark. 585, 587, 720 S.W.2d 916, 917 (1986) (internal citation omitted) (“The constitutional right to a jury trial is limited to those cases which were so triable at common law.”).

28. 360 Ark. 528, 534, 203 S.W.3d 88, 92 (2005).

29. See also Reporter’s Notes to Ark. R. Civ. P. 38 (“Since Rule 18(a) permits the joinder of legal and equitable claims, problems could arise when equitable issues are resolved in circuit court; however, Rule 18(b) permits the trial court to make such orders respecting severance and transfer as may be appropriate and this should cure most potential problems. There may be instances, however, where a circuit judge might be called upon to decide equitable issues in a case where a jury is sitting. In those instances, the court should follow the federal practice of having the jury resolve

the legal issues with the court itself resolving the equitable issues. Wright & Miller, Federal Practice And Procedure, Sections 2305 and 2306.”).

30. Nat’l Bank of Arkansas v. River Crossing Partners, LLC, 2011 Ark. 475, 385 S.W.3d 754 (2011).

31. Id. at 8, 385 S.W.3d at 760.

32. Id. at 761.

33. Ark. Code Ann. § 7-10-102; Acts of 2001, Act 1789, § 2, eff. Aug. 13, 2001; Ark. Const. amend. 80, § 17.

34. Assisted Appointment (Judicial Selection), Ballotpedia (October 6, 2019, 1:38 PM), https://ballotpedia.org/Assisted_appointment_(judicial_selection); Ark. Const. amend. 80, § 17.

35. Id.; Ark. Const. amend. 80, § 17.

The most common merit system employed by other states is a gubernatorial appointment chosen from a list recommended by a judicial selection committee, followed by a “retention” election.

36. Ark. Sup. Ct. Admin. Order 14 (as revised December 13, 2012).

37. Id. Circuit courts may create specialty dockets or programs, such as drug courts, mental health courts and veterans courts.

38. Id. 39. Id. 40. Howard Brill, Circuit Courts, Ark. Law of Damages, § 2:1 (Nov. 2018).

41. Id. 42. Smith v. McCracken, 96 Ark. App. 270, 275, 240 S.W.3d 621, 624 (2006).

43. Mark Waller, Combine Courts, Jurists Propose, Ark. Democrat-Gazette, March 15, 1990, at BI (quoting Sidney McCollum, co-chair of the Arkansas Bar Association’s Committee on Amendment 80).

44. Smith v. McCracken, 96 Ark. App. 270, 274, 240 S.W.3d 621, 624 (2006).

45. Morton Gitelman, The Separation of Law and Equity and the Arkansas Chancery Courts: Historical Anomalies and Political Realities, 17 U. Ark. Little Rock L.J. 215, 244 (1995).

46. John J. Watkins, Law and Equity in Arkansas—Or, Why to Support the Proposed Judicial Article, 53 Ark. L. Rev. 401, 437 (2000).

47. In re Implementation of Amendment 80: Admin. Plans Pursuant to Admin. Order No. 14, 2001 Ark. LEXIS 706, *2 (June 28, 2001). 

A T T O R N E Y S

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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 implemented some exciting programing in the last quarter of 2019.

In October, Bowen and Philander Smith College created a 4+3 pipeline for Philander Smith students who wish to attend law school at Bowen. In November, the University of Arkansas at Pine Bluff and Bowen created a 4+3 program for UAPB’s students. Students who graduate from these schools with at least a 3.4 GPA and 154 LSAT are automatically admitted to Bowen as long as they meet character and fitness requirements.

These partnerships recognize each college’s commitment to preparing students who aspire to law school and ensure that highly motivated graduates have spots at Bowen. Bowen professor andré cummings has been teaching an LSAT preparation class at Philander Smith College to students interested in attending law school. These programs, along with Professor cummings’s efforts, reinforce Bowen’s commitment to these colleges and to Arkansas communities.

In addition to these programs and other scholarship opportunities, Bowen offers a 25 percent tuition scholarship to accepted students who earned a bachelor’s degree from an Arkansas historically black college or university.

Bowen and the Arkansas Administrative Office of the Courts also have created the Arkansas State Court Fellows Program.

This program, a collaboration between Bowen and the National Center for State Courts, recognizes the essential nature of court administrators in the administration of justice.

The program is open to all students with the exception of those expected to graduate in May 2020. Students selected for this program will receive additional training, certification as national court managers, and paid internships in the office of circuit court judges. The program is designed as a pipeline for law students interested in court administration, a position that increasingly requires successful applicants to have a J.D. In addition to this Fellowship, Bowen’s Career Services Office will actively search, compile, and share job postings for court administrators in state and federal courts, particularly those requiring completion of a law degree, and assist interested students in their pursuit of a career in court administration.

l to r: Philander Smith College President Dr. Roderick L. Smothers, Sr. and Dean Beiner; Right, UAPB Chancellor Dr. Laurence B. Alexander and Dean Beiner

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Dean McCabe

In spring 2019, we launched the University of Arkansas School of Law Summer Public Service Fellowship Program, which provides paid public service fellowships to promising law students interested in public service careers.

The students spent 10 weeks working for nonprofit, non-governmental, and government entities that could not otherwise afford summer interns. Through these partnerships, our students perform meaningful legal work while making significant contributions to the community, reinforcing the law school’s broader effort to fulfill the university’s land-grant mission.

Our eight inaugural fellows had diverse and meaningful experiences across a broad array of legal services: Lexi Acello worked directly with low-income clients to help them gain access to quality civil legal services at the Center for Arkansas Legal Services in Fort Smith. Maria Baez de Hicks helped Arkansas Advocates for Children and Families in Springdale study the barriers to access for those attempting to use government programs intended to address food insecurity. Derick Dillard attended hearings and client interviews and helped with writing and research on the proper application of U.S. Sentencing Guidelines as part of his work for the Federal Public Defender’s Office in Fayetteville.

Badria Mryyan helped create, research, edit, and share resources on human trafficking, the rights of undocumented immigrants, and public policy changes affecting immigrant families for the YMCA in Tulsa, Oklahoma. Clinton Summers observed hearings, did research, and drafted two opinions, one civil and one criminal, for U.S. Magistrate Judge David P. Rush in Springfield, Missouri.

Mitchell Dowden served as the Tyson Summer Public Service Fellow while working at the Harvard Food Law and Policy Clinic in Boston, where he assisted on projects dealing with hemp, sugar, USDA grass-fed standards, bill tracking, and international date labeling. Marion Humphrey worked at the Center for Youth Justice in Washington, D.C., as the Squire Patton Boggs Public Service Fellow, where he tracked legislation and case law regarding the transfer and sentencing of youth under 18 in the adult criminal justice system and contributed to a joint policy brief on Latinx youth in the adult criminal justice system. Nick Linn, the Raffaelli-Lineberger Public Service Fellow, assisted trial attorneys with determining whether a variety of individual actions violated federal civil rights statutes while working at the U.S. Department of Justice – Civil Rights Division, Criminal Section in Washington, D.C. I hope you will go to law.uark.edu/probono to learn more about these students and read about their experiences in their own words. (clockwise from top left) Nick Linn, Badria Mryyan, Marion Humphrey, Derick Dillard, Clinton Summers, Lexi Acello, Mitchell Dowden and Maria Baez de Hicks.

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Vol. 55 No. 1/Winter 2020 The Arkansas Lawyer

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Fastcase Fast Facts

By Cathy Underwood

It was great to see so many familiar, and new, faces at the ArkBar Mid-Year Meeting.

Many of you came by the ArkBar/Fastcase booth to look at the new handbooks and ask questions about Fastcase. Your questions gave me a lot of food for thought.

Some members seem frustrated with the new version of Fastcase, so I spent some time thinking about how we can make that better, and came up with a couple of things: we have created a Fastcase User Forum on our website and will also feature Fastcase tips in this new column of the magazine.

We can use the Fastcase User Forum to communicate and help each other with our Fastcase questions. Also, when an upgrade occurs in Fastcase, I will post the information there, so it will come directly to your inbox (assuming you join the community, of course—just click the “Join” button!).

I’ve already posted some helpful documents out there, as well as a link directly to the video tutorials that Fastcase provides, and information about the changes in the latest release. (And remember, you can always contact the Fastcase research attorneys for help at 866-773-2782 or by email at support@fastcase.com.)

In this first column, I talk about two things that seem to give folks a bit of trouble when they first log on to Fastcase: what are the entry points to use Fastcase, and the difference between searching and browsing.

Cathy Underwood has provided editing services to ArkBar for over 35 years, and provides training to its members on Fastcase and ArkBar Docs.

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Entry points: When you look at the Fastcase entry screen, there are three basic entry points: (1) the search bar, (2) browse, and (3) advanced search.

The search bar: From the beginning screen, you simply type in your search and click the “search” button. Your search will be run in the entire database (unless you have changed your default settings). Remember that you can easily filter the results down later.

Browse: When you browse, you are just reading; after you hit the browse button, click on the source you want to browse, and then just drill down through the tree structure (like a table of contents in a book) to get to the section you want to read. This option is available for sources like the code, court rules, constitutions, and our new ArkBar Handbooks. (ArkBar Handbooks in Fastcase require a yearly license fee, except for the Guide to Arkansas Statutes of Limitations—that one is part of your free member benefit).

Advanced search: Choosing this option allows you to select your jurisdiction up front, and walks you through creating your Boolean search, for a more detailed, tighter search. To reach this option, click on the cog just to the right of the browse button. (You can also reach this option by clicking on “Jurisdictions & Sources,” but I personally like the screen you get with the cog better.)

Browse and search are two totally different functions: Remember that search and browse are two distinct functions. If you are browsing, you choose your source in the browse screen; if you are searching, you choose your source in the advanced search screen. One mistake that I think some users have made is that they click on the browse function, choose the Arkansas Code or whatever source they want to look at, and then instead of browsing, they click up in the search bar and type in a search, thinking that it will search just the Arkansas Code. Once you click up in that search box, anything you have selected in browse is gone, and you will be searching the entire database (unless you have changed that in the search function).

Hope this “entry” information helps! Join the Fastcase User Forum in the ACE Community and send me your Fastcase questions. They just might appear in a future column!

Join the Fastcase User Forum in the ACE Community Go to www.arkbar.com/communities/allcommunities, find “Fastcase User Forum” and Click JOIN!

RICHARD MAYS LAW FIRM, PLLC Richard H. Mays, formerly of Williams & Anderson PLLC, has relocated his office to 2226 Cottondale Lane, Little Rock (adjacent to the Arkansas Bar Center), and will continue his practice with emphasis on: • • • • • •

Environmental Law Oil, gas and natural resources law Eminent domain Flooding and Levees General litigation Real Estate and Business transactions

Richard Mays represents individuals, citizens groups and environmental organizations in cases against governmental agencies, such as the U.S. Army Corps of Engineers and the Federal Highway Administration, and companies such as electrical utilities, oil and gas production companies, and national pipeline companies regarding private and public-works projects harmful to landowners and the environment of Arkansas.

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info@facilicominc.com THE SELECTED TELECOMMUNICATIONS PROVIDER OF THE ARKANSAS BAR ASSOCIATION Vol. 55 No. 1/Winter 2020 The Arkansas Lawyer

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inaugural Public Service Academy

“The best way to find yourself is to lose yourself in the service of others.” Mahatma Gandhi.

chaired by:

Maggie Benson and Nate Looney

With assistance by:

Nikolai DiPippa and Jay Robbins

Steering Committee:

Former Chief Justice Howard Brill Judge Earnest Brown Speaker Matthew Shepherd

Thank you to our sponsors

• University of Arkansas School of Law • University of Arkansas Little Rock William H. Bowen School of Law • ArkBar Civil Litigation Section • ArkBar Government Practice Section • Rose Law Firm • Brian Rosenthal 30

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“Never doubt that a small group of thoughtful, committed citizens can change the world; indeed, it’s the only thing that ever has.”

Margaret Mead

The Arkansas Bar Association and the University of Arkansas Clinton School of Public Service launched the inaugural class of the Public Service Academy in Little Rock November 15-16, 2019, and in Fayetteville January 17-18, 2020. The Public Service Academy was established to provide serviceminded lawyers the tools they need to serve in both elected office and as volunteers. The academy is believed to be the third program sponsored by a bar association in the United States following North Carolina (2017) and Tennessee (2018).

“Do we really need more lawyers in service?” The answer is an emphatic yes! Lawyers lead, serve and give back to their communities in so many ways.

Our competitive, statewide Public Service Academy will serve as a launchpad for public service achievements by these attendees as well as those they mentor.

Arkansas Bar Association President Brian Rosenthal’s remarks to the inaugural class of 25 lawyers and 12 students from the University of Arkansas, Fayetteville School of Law, Bowen School of Law and the Clinton School of Public Service are excerpted on the following page.

On page 32, you will find descriptions of the presentations that were made and a listing of our presenters at our two sessions. Read more about the academy at www.arkbar.com/events/public-service-academy. The next academy will be in 2021.

2019-2020 inaugural class of the Public Service Academy

Westley Ashley

Kelsey Bardwell

Caleb Baumgardner

Kandice Bell

Kelly Brown

Martha McKenzie Hill

Jera Houghtaling

Alexander Jones

Skye Martin

Joey H. McCutchen, II

Mary “Molly” McGowan McNulty

Jeffrey H. Moore

Meredith Moore

Dequeshia Prude

Brenda Simpson

Dusti Standridge

Judge Sam Terry

Wendy Scholtens Wood

O

Tabitha Lee

n behalf of the Arkansas Bar Association and our Executive Director Karen Hutchins, Dean Skip Rutherford and Nikolai DiPippa from the Clinton School of Public Service, chairpersons Maggie Benson and Nate Looney, and staff liason Jay Robbins, we enthusiastically welcome you to the Inaugural Public Service Academy. The idea for the Public Service Academy grew out of a postcard from North Carolina Bar President Caryn Coppedge McNeill, who suggested its program could be replicated. After study, we determined that Arkansas like many states has seen a sharp decline in the number of lawyers who are serving in its legislature. In this last session there were approximately 15 lawyers in the legislature, down from approximately 30 in 1997 according to the Bureau of Legislative Research.

We have said unlike a judicial position, it is not necessary and you’re not required to be a lawyer to be in the legislature, and you are also not required to be a lawyer in

Lauren Manatt

S. Taylor Chaney

Cara Boyd Connors

Tyler R. Farrar

Students University of Arkansas School of Law, University of Arkansas at Little Rock William H. Bowen School of Law and the University of Arkansas Clinton School of Public Service

Kara Butler

Caleb Conrad

Derick Dillard

Wesley Manus

Dana McGee

Trent Minner

many other opportunities for public service. However, it is undeniable the training lawyers receive in critical thinking, as well as an understanding of how rules, laws, regulations, orders and proposals can work together, or in opposition, are invaluable to our state, our country, and the organizations that are formed within them.

In this Public Service Academy, we are trying to refocus on that time in our country when people took time to serve. Each one of you has expressed through action or desire an interest in public service. During today and tomorrow and at the session in Fayetteville, our hope is to give you the tools necessary in order to decide when and how to make that decision.

I have looked for some of the best quotes on public service. Of course, John F. Kennedy’s quote about asking what you can do for your country is at the top of the list. [See other quotes on pages 30 and 32.]

As I was preparing these remarks, I thought about these great individuals, and the many

Amy Freedman

Pam Percefull Hathaway

Nate Arrington

Jennifer Browne

Justin Gunderman

Liz Hall

Madhav Shroff

Connor Thompson

Americans who have served in public service.

If you made a list of your Mt. Rushmore of America’s greatest citizens, would it include a non-president, like Benjamin Franklin? A woman like Harriet Tubman, Sandra Day O’Connor or Rosa Parks? I have no doubt that your Mt. Rushmore would have one thing in common with all others—it would include people who chose to serve, people who had the courage to reach down deep inside and use what they had within them to better society.

We are so excited to see what this class produces as far as public servants and leaders. You are 25 in number and 12 students hailing from all over Arkansas—Springdale to Dumas—Texarkana to Harrison and you are from Central Arkansas. We are very pleased to have so many with diverse backgrounds.

We have those who have served in the military. We have an instrumental band instructor—band members make creative lawyers!

We have non-lawyer students at the Clinton School and we welcome them.

Vol. 55 No. 1/Winter 2020 The Arkansas Lawyer

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class developed mantra— the alphabet of serivce:

“Service to others is the rent you pay for your room here on earth.” Muhammad Ali November Agenda Recap: Friday Welcome Reception at Clinton School of Public Service: Speakers: Chief Justice Dan Kemp, Little Rock Mayor Frank Scott, Jr. and ArkBar President Brian Rosenthal Saturday Welcome: Nate Looney and Maggie Benson Session 1: Public Service and the Law: Dean John DiPippa

Authentic beneficial committed dedicated empathy flexibility giving humility integrity justice kindness leadership meaningful noble optimistic persistent quality resilience strength Trustworthy unify volunteer willing xenodochial yearning

zeal 32

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Session 2: Attorney Panel: Former Representative Clarke Tucker; Judge Cathi Compton; Speaker of the House Matthew Shepherd; State Representative Carol Dalby; moderated by Former Little Rock Mayor Mark Stodola Stories in Arkansas Politics: Clinton School of Public Service Dean Skip Rutherford and Roby Brock Session 3: Ethics/Campaign Finance: Graham Sloan, Director of the Arkansas Ethics Commission Session 4: Campaign Consultants: Running a Successful Race: Michael Cook and Isaac Foley January Agenda Recap: Friday Welcome Reception at the Fayetteville Chamber of Commerce: Speakers: Cynthia Nance, Dean Emeritus, University of Arkansas School of Law; Steve Clark, President and CEO, Fayetteville Chamber of Commerce; and ArkBar President Brian Rosenthal Saturday Welcome at the University of Arkansas School of Law: Dean Margaret McCabe, University of Arkansas School of Law Session 1: Public Service and Ethics: Former Chief Justice Howard Brill Session 2: Reaching Your Voters–Field Strategies: Will Watson and J.R. Davis Public Service Outside Elected Office: Nate Coulter, David Gearhart, Dak Kees, Kelly Browe Olson and Nelson Peacock; moderated by Maggie Benson Breakout Session—Public Service Fellowships Session 3: The Art of Fundraising: Mark Henry, Scott Varady and Former Representative Rick Green; moderated by Nate Looney Session 4: Balancing Politics and Life in the District: Representative David Whitaker, Representative Nicole Clowney, Representative Gayla Hendren McKenzie, Moderated by Former Representative David Matthews

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Vol. 55 No. 1/Winter 2020 The Arkansas Lawyer

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ROME, SHAKESPEARE AND THE RULE OF LAW

By Carl J. Circo

Juliet’s balcony in Verona

Carl J. Circo teaches Real Estate Transactions, Property, and Construction Law at the University of Arkansas School of Law, and is a fellow of the American College of Real Estate Lawyers.

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This summer, I had the opportunity to explore Shakespeare’s perspectives on law with a small group of students and a dear colleague in a study abroad program at the University of Arkansas Rome Center. The Center, located in the heart of Rome, is one of the University’s most extraordinary (and least known) resources.1 My friend and colleague, Dr. Joseph Candido of the University’s English Department, and I taught a course for law students and humanities undergraduates that explored the law through five plays: Julius Caesar; Richard II; Henry V; The Merchant of Venice; and Measure for Measure. Our sessions included literary aspects of each play, such as “characterization, setting, tone, imagery, and symbolism” (as Dr. Candido’s syllabus specifies). For present purposes, however, I leave those matters to the domain of my most capable colleague, who presented them with passion and flare, much to our advantage. While anyone can learn much from Shakespeare’s portraits of law, a Shakespearean scholar’s guidance opens a door to a far richer experience.

In this article, I aim only to illustrate some of what lawyers can learn by studying great literary portrayals of legal systems and institutions.

The study of Western culture, and especially great literature, has figured prominently in Anglo-American legal education.2 From before our country’s founding, literary stalwarts have influenced our leading legal minds. The Bible and Shakespeare influenced 18th and 19th century lawyers at least as much as did Blackstone.3 Over time, however, the profession has lost some of its shared understanding of the human experience that once came from a common background in great literature. The law and literature movement offers one way to keep the humanities alive for lawyers.4 Julius Caesar initiated a debate over how well legal institutions can order society politically. Shakespeare’s version of Rome’s violent transformation from republic to empire reinforces the legendary connection between liberty and eternal vigilance.5 Julius Caesar leaves us puzzling why and how the Roman Republic failed, especially given the elegance with which Shakespeare’s Brutus and Cassius expressed the ideals of freedom and liberty centering the republic’s legal structure, and with equal force, pleaded the compelling case for resisting Caesar’s strongman rule. Questions much like these remain matters of first principles today.

We debated the disconcerting implications of the play’s compelling case for the Roman republic as an abstract ideal, which Shakespeare sets in conflict with the more concrete benefits a strong, unitary, and autocratic leader seemingly promised for the expanding empire.

What should a reader in a modern constitutional democracy make of Caesar’s assassination that provoked a civil war, which in turn ex-

“... in this brief excursion into the field of law and literature, let me suggest that great literature about law, just as law itself, is too important to leave to the experts. Literature helps to humanize the development, practice, and administration of law. The best lawyers and judges already know this.”

A Roman bridge in Verona

changed a 400-plus years’ experiment in representative government for rule by emperors lasting almost as long? Must we conclude simply that military means can always repeal liberty supported solely by legal institutions?

Or, might better-conceived and managed legal institutions have resolved the conspirators’ concerns, avoided the breakdown in civil order, and saved the republic? Do the legal institutions of modern constitutional democracies provide adequate alternatives to violence as the means for ousting a popular demagogue? Can Shakespeare’s Julius Caesar, Mark Antony, Brutus, and Cassius offer any useful lessons for today’s political leaders and dissenters? We noted with particular interest that Brutus, Cassius, and the other conspirators had no effective legal recourse to resist Caesar’s popular ascension to extralegal power, leaving them to decide, on behalf of their countrymen, whether Romans would “rather Caesar were living, and all die slaves, than that Caesar were dead, to live all freemen.”6 At a more practical level, we studied the funeral speeches that Shakespeare masterfully crafted for Brutus and Mark Antony as demonstrations of effective oral advocacy.7 We found especially useful a trial lawyer’s analysis of the orators’ display of closing argument skills.8

Next, we took up a play set 1300 years later in England that presents remarkable similarities to the competing cases for and against a Caesar-like ruler. Richard II depicts a king deposed in part because he disregarded rights fixed in the hearts of English nobility from the time of Magna Carta. Chief among the king’s offenses was his refusal to respect private property rights. Richard’s crude manipulations of his royal power prevented Henry Bolingbroke from inheriting his father’s title and estate as Duke of Lancaster.9 Richard’s confiscation of Lancaster’s property, however, struck a chord with other noblemen, who perceived similar threats to their own property rights. This decision, while arguably within the king’s legal power, left Bolingbroke in position to mount the uprising that ultimately left Richard in the dungeon at Pomfret Castle and Bolingbroke on the throne as Henry IV. I find no better illustration of law as an instrument of society than the history of English land law, which serves as a backdrop to the play’s central action. We used selected aspects of feudal services and incidents to consider the importance of property law principles to Anglo-American law and to appreciate the feudal origins of our property law. We examined the limits on governmen-

tal authority over property rights that began with Magna Carta and evolved century after century, ultimately in favor of a propertied class, with such Parliamentary developments as the Statute Quia Emptores, the Statute of Uses, the Statute of Wills, and the Statute of Tenures, to name a few.10 We also used an important secondary character in the play, the Duke of York, to begin a discussion on legal institutionalists and the concept of the rule of law that we would continue for the balance of the program. York, uncle of both King Richard and of the treasonous Bolingbroke, offers a remarkable instance of a politically influential figure distinguished by a steadfast commitment to law and legal process and a strict adherence to convention. We used the contemporary label “institutionalist” for this type, found not only in Richard II but in one form or another in each of the five plays. It was, however, York who best portrayed the institutionalist. Employing legalistic maneuvers and subtle rationalizations, York gradually evolves, first as a loyalist who resolutely stands by the duly anointed king despite Richard’s enormous political mistakes and ethical malfeasances, and later as the political actor who invokes legalisms to mediate Richard’s manufactured abdication; he gradually

Vol. 55 No. 1/Winter 2020 The Arkansas Lawyer

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Pictured left: the Forum in Rome

and tentatively switches allegiance to Henry, until he finally manages to convince himself to accept Bolingbroke as Richard’s rightful successor, even being the one to summon the usurper to Richard’s throne, hailing “And long live Henry, fourth of that name!”11 Henry V, in addition to continuing to examine legal institutions that establish and preserve governmental legitimacy and provide for succession in political leadership, also introduces another fundamental role of law in society. Henry V reigned from 1413 to 1422, a time during which international law, especially a code to regulate the conduct of war among nations, was emerging.12 The play presents an ideal opportunity to gain a historical perspective on legal principles governing relations between sovereign states.

The play begins as Henry V, whose questionable claim to the throne derived from his father’s treasonous ouster of Richard II, solicits and ultimately accepts what we suspect he must recognize as tainted and debatable legal advice from two ecclesiastics. That advice supports his own claim to the French throne and his desire to conclude that his contemplated invasion of France would constitute a just war. In keeping with English social institutions of the time, the churchmen functioned not only as religious leaders, but also as trained legal experts qualified to advise the king on such matters.13 They crafted a plausible interpretation of French law to support Henry’s ambitions because they knew that a war of conquest in France could provide much-needed revenue that could stop a bill pending in Parliament to confiscate church property.

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First, we debated the questionable reasoning behind the legal advice the king received.

Next, by examining the conflict of interest that influenced the advice, we advanced our understanding of the connection between religion and law that Richard II first suggested. This was, however, only the beginning. Henry’s decision to invade France and his conduct of the war exposed the origins of international law and the principles of just war as then understood by the Christian countries of Europe, to which modern international law stills owes much. The play leaves unanswered some disturbing and still timely questions about war crimes. Henry’s decisions during the siege of Harfleur and in the battle of Agincourt (where Henry ordered the killing of French prisoners of war) continue to inspire heated debates among international scholars, lawyers, and jurists.14 Ultimately, we viewed Julius Caesar, Richard II, and Henry V as a series exploring the role of law in governmental institutions.

Each play tempts the modern reader to discern in Shakespeare an ambiguous or even fatalistic acceptance of the governmental structure of England at his time. Might we read each play as a veiled prayer, uttered in hushed tones to evade the Elizabethan censors, for a political system at least minimally responsive to the will and aspirations of its citizens? One commentator reflecting on the broader implications of these plays argues that they “fit between a classical Aristotelian notion of natural law integrating the individual into a larger society and the later concept of individual rights in a limited, liberal constitutional state.”15 From that claim comes the suggestion “that these plays later had an important role in developing a better governmental system in the succeeding centuries.”16 Subplots in Richard II and Henry V explore the royal prerogative to choose between the strict letter of the law and a more flexible, discretionary, and merciful application of the law. Consider, for example, King Richard’s arbitrary decision to pretermit a trial by combat between two nobles (Bolingbroke being one of them) who accused each other of treason, and instead, banish them both.17 In another scene from Richard II, after Bolingbroke ascends to the throne as Henry IV, he grants his aunt’s plea to pardon her

son, who has been exposed as a traitor.18 Next, in an early scene in Henry V, the king ostentatiously rejects the advice of three noblemen who press him to enforce the law strictly by punishing a commoner who had insulted Henry.19 Later, the play twice portrays Henry as an especially merciful military commander, once in his compassionate orders to his victorious army at Harfleur,20 and the other when he pardons a common soldier.21 Taken at face value, these scenes seem to praise the wisdom of a powerful leader who humanizes law with mercy. At the same time, each exposes tension between law, as an objective and constant set of rules, and law administered with broad discretion by someone arguably acting out of self-interest. Is justice through the wise exercise of mercy possible only when those who administer the law operate above it, or is such discretion the antithesis of a just legal system?

The last two plays we studied brought such questions to the forefront.

Perhaps none of Shakespeare’s plays has generated as much reflection on law as has The Merchant of Venice.22 The play places the law-mercy debate at center stage, which it famously develops in the context of a society devoted to commerce. Shakespeare exaggerated the problem by inserting the “pound of flesh” term into the bond Shylock ultimately insists the law must honor to serve the commercial values central to Venetian society.23 In less sensational ways, modern courts continue to struggle to balance the sanctity of contract against harsh contractual terms or seemingly unfair or illogical results.24 Must a court interpret a contract strictly according to the words the parties used, without the slightest regard for what they must have intended those words to mean? Should the law tolerate or even encourage the kind of rhetorical tricks that Portia, disguised as a respected doctor of the law, successfully employed to relieve Antonio of his burdensome bond and to punish Shylock for refusing the court’s pleas to settle the dispute on reasonable terms? Can a just legal system develop principles to strike unconscionable terms and to interpret enforceable ones flexibly?

More broadly, whether for contracts or in other fields, can the law establish an acceptable boundary between rational judicial discretion and arbitrary judicial power?

Portia’s use of legal stunts in service of her vision of justice, together with the related problem of tempering the letter of the law with mercy, furnish especially clear examples of how lawyers, judges, law professors, and law students can learn from Shakespeare.

Shylock, a Jewish moneylender much despised and yet much needed by Venetian society, brought his case to enforce the forfeiture term of the bond given to Shylock by his Christian archenemy, Antonio, to secure repayment of a debt of Antonio’s dear friend Bassanio. Because neither Bassanio, as principal, nor Antonio, as surety, was able to pay the debt on time, the bond entitles Shylock to a pound of Antonio’s flesh.

As soon as Shylock and Antonio appear before the ruling duke, he reveals institutionalist convictions by announcing he will order the forfeiture if Venetian law so requires.25 Portia, disguised as a learned doctor of the law serving as the duke’s designated advisor, authoritatively confirms the bond’s validity. In her “quality of mercy” speech, she eloquently reprises a plea the duke himself previously made for Shylock to forego the bond’s harsh terms and accept a generous financial settlement. When Shylock refuses, the duke orders the forfeiture. As Shylock raises his knife to Antonio’s breast, however, Portia clarifies that the law requires strict adherence to the bonds terms, which “doth give thee here no jot of blood.”26 Shylock finally agrees to settle, but Portia declares it too late because the court has already rendered judgment. Next, Portia announces that Shylock must lose all his wealth and beg the Duke’s mercy for his very life under an obscure provision of the Venetian code dealing with any alien who threatens the life of a Venetian citizen. The Duke relieves Shylock of the death sentence, but on conditions that not only still require of him all his wealth, but even his conversion to Christianity. Thus, the law dispenses radically different versions of justice and mercy for Antonio and for Shylock.

We ended our study of The Merchant of Venice with the distinctly uneasy suspicion that many in our own society, including some of the more cynical members of the bar, believe law too often fails justice, no matter whether controlled by letter or spirit and even when it vests discretion in dukes or kings or judges to dispense mercy. More disturbing was our apprehension that Portia’s slick tricks portray a common perception of lawyers and the legal process.

Finally, Measure for Measure continued our consideration of the law-mercy-discretion dilemma, this time set in the realm of criminal law and official abuses of power and social position. In brief, Measure for Measure confounds its characters and its audience with a series of dilemmas: what should those charged with the administration of law do when accepted social behavior mocks criminal prohibitions (think of today’s federal marijuana laws); do moral or religious principles stand above legal ones; who will listen when the politically powerful abuse the politically weak (think of the #MeToo movement); and should we prefer wise judges over wise laws to serve justice?

Measure for Measure served as an especially fitting end to our study of Shakespeare’s critique of law because it challenges everyone concerned with law to offer a workable definition of justice itself and demands legal institutionalists to defend their commitment to the rule of law in the face of recurring injustice. Although the play has been used to support widely divergent interpretations about law as an instrument of society, the conventional version sees it “as portraying the tension between law and discretion, between strict and loose construction of laws, between justice and mercy, between law and morality.”27 To conclude this brief excursion into the field of law and literature, let me suggest that great literature about law, just as law itself, is too important to leave to the experts. Literature helps to humanize the development, practice, and administration of law. The best lawyers and judges already know this.

Endnotes: * The author gratefully acknowledges the helpful research assistance of Levi Jefferies, a second-year student at the School of Law. 1. Information about the Rome Center is available at https://www.uarkrome.it/.

2. See generally Charles R. McManis, The History of First Century American Legal Education: A Revisionist Perspective, 59 Wash.

U. L. Q. 597 (1981).

3. E.g., Madeline Sapienza, A Little Touch of Shakespeare at the American Bench and Bar, 22 VT. B.J. & L. Dig. 20 (1996).

4. See generally Richard Weisberg, What Remains “Real” about the Law and Literature Movement?: A Global Appraisal, 66 J. Legal Educ. 37 (2016); Richard A. Posner, Law and Literature: A Relation Reargued, 72 Va.

L. Rev. 1351 (1986).

5. The origins of the phrase “Eternal Vigilance is the Price of Liberty” came from John Philpot Curran, an eighteenth-century Irish lawyer and politician. See Suzy Platt, Respectfully Quoted: A Dictionary of Quotations 200 (1993).

6. William Shakespeare, Julius Caesar act 3, sc. 2.

7. See id.

8. See Peter W. Murphy, In re Julius Caesar, Deceased: Whoever Wrote “Shakespeare” Knew a Few Things about Closing Argument, 30 Am. J. Trial Advoc. 71 (2006).

9. See William Shakespeare, King Richard act II act 2, sc. 1.

10. See Cornelius J. Moynihan, Introduction to the Law of Real Property 21-25 (1962).

11. See William Shakespeare, King Richard II act 4, sc. 1.

12. Theodor Meron, Shakespeare’s Henry the Fifth and the Law of War, 86 Am. J. Int’l. 1, 2-4 (1992).

13. See Robert J. Delahunty, The Conscience of a King: Law, Religion, and War in Shakespeare’s King Henry V, 53 J. Cath. Legal Stud. 129, 130-131, 139-142 (2014).

14. See id.; Meron, supra note 12.

15. C. M. A. McCauliff, The Right to Resist the Government, 14 Ilsa J. Int’l & Comp. L. 9, 13 (2007).

16.. Id. at 16.

17. See William Shakespeare, King Richard act II act 1, sc. 1.

18. See id. at act 5, sc. 3.

19. See William Shakespeare, Henry V act 2, sc. 2.

20. See id. at act 3, sc. 3.

21. See id. at act 4, sc. 8.

22. Westlaw reveals over 800 articles and 200 cases mentioning “Merchant of Venice.”

23. See William Shakespeare, The Merchant of Venice act 4, sc. 1.

24. See, e.g., David Campbell, The Incompleteness of Our Understanding of the Law and Economics of Relational Contract, 2004 Wis. L. Rev. 645.

25. See William Shakespeare, The Merchant of Venice act 4, sc. 1.

26. See id.

27. Daniel J. Kornstein, A Comment on Prof. Halper’s Reading of Measure for Measure, 13 Cardozo Stud. L. & Lit. 265, 267 (2001). 

Vol. 55 No. 1/Winter 2020 The Arkansas Lawyer

37

Members who have served in the military This list is a supplement to the feature published in the Fall 2019 issue of The Arkansas Lawyer magazine. The list is not inclusive and was compiled from member contributions. Special thank you to all members who have served our country. If you know of a member who should be included in future publications, please contact the editor.

David F. Barton, Lt. Col,.

USAF (Retired). While in the Philippines the USAF exited Vietnam and his unit was the airlift support unit that supported the repatriation of U.S. prisoners of war from North Vietnam.

James A. Buttry (19402013) served three years in the United States Army, being discharged as a Captain in 1966.

Marilyn Dearien Barton, Colonel, USAF (Retired) joined the USAF in 1979 and joined her husband, David F. Barton, who was also a Judge Advocate.

Marilyn served at Eglin AFB, FL, The Pentagon, Randolph AFB, TX, MacDill AFB, FL and Kelly AFB, TX.

Johnathan D. Dial, Sr., Captain, U.S. Army (Ret.).

John enlisted in 1996. He earned an infantry commission with the 82nd Airborne Division in 2002. John was a 2003 Honor Graduate of the Infantry Officer Basic Course before deploying to Iraq. There he recruited, trained, and embattled a rifle company of Iraqis in support of 3-325 Airborne Infantry Regiment. He later served as an anti-tank platoon leader, HHC executive officer, and general’s staff officer. John was severely wounded and medically retired in 2006.

Charles A. Brown was a part of the 1954 drafted group assigned to then Camp Chaffee. After basic training there he was assigned to Fifth Army Headquarters JAG at Colorado Springs. He reviewed Summary and Special Court Martial cases for the Colonel in Charge. He was raised from E-1 to Specialist E-5 in 1954.

From then Fort Carson, he was requisitioned to the JAG unit of the 1st Calvary Division, at Sendai, Japan. He received the Meritorious Service Medal before separation from service in 1955.

Major Natalie G. Brown, Deputy Staff Judge Advocate Arkansas National Guard.

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Oscar Fendler (1909-2002) was an officer in the U.S. Naval Reserve (serving as a legal specialist). Fendler was called to active duty in 1942. During the war, he served at several bases around the United States before being transferred to the Pacific Theater. He spent most of the war in the Philippines, with

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special assignments that took him to Australia and China.

Fendler left active duty in 1945, receiving a Bronze Star for his war service.

Martin G. Gilbert was commissioned a Second Lieutenant (Infantry) with active duty deferred in 1961 to attend law school. In 1964, he transferred to the U.S. Army Judge Advocate General’s Corps as a First Lieutenant and went on active duty in September 1964.

He served in the JAG Office of 1st Logistical Command, Saigon, Vietnam, from 1965-66, during which time he was promoted to Captain and received the Army Commendation Medal. He received the Army Commendation Medal with Oak Leaf Cluster.

Paul Leo Giuffre (1933-2020) served in the U.S. Navy from 1955-57.

Dr. Morriss Murphey Henry was commissioned as captain in the Air Force and was chief of the Eye Clinic in Bitburg, Germany.

Robert L. Jones, Jr., (1922-2004), as a Private First Class, was at Normandy in 1944 and stationed in Germany in 1945.

He was then commissioned as First Lieutenant and was in the JAG Corp at Fort Chaffee, Arkansas, during the Korean Conflict.

Dak Kees currently serves as a Staff Judge Advocate Officer in Arkansas Army National Guard Judge Advocate General’s Corps in rank of Major.

James H. McKenzie (1941-2002) served in active duty as a Second Lieutenant in the U.S. Army Military Police and served two years active duty, which included service at Seneca Army Depot, Romulus, NY. Eudox Patterson, 1st Lieutenant, U.S. Army, served six years as an ordnance officer, the last of which was in Vietnam. He is now a disabled American Military Veteran from slushing around in Agent Orange in 1967-68.

Andy Rittenhouse, First Lieutenant, U.S. Army Judge Advocate General’s Corps. He is a Judge Advocate and serves as Trial Counsel for the 87th Troop Command Brigade.

Adam Rose, Major, U.S. Army, currently serves as a Judge Advocate, Special Victims’ Counsel with the National Guard Bureau, Office of Chief Counsel.

Major Rose received an LL.M. in Military Law from the Judge Advocate General’s Legal Center and School, Charlottesville, VA in 2018.

Major Rose has been a member of the Arkansas Army National Guard since 2011.

Judge David L. Rush was commissioned as an Ensign in the United States Navy in 1975 after graduating from the University of Arkansas in 1974. While on active duty he served onboard many Aircraft Carriers and other surface combatants while forward deployed to the Western Pacific. Upon release from active duty, he completed law school at the U of A and remained in the Naval Reserve. Judge Rush served as Commanding Officer of the Naval Reserve Units in Fort Smith and Fayetteville. During his tenure he served on numerous ships from the Western Pacific to the North Atlantic.

Judge Rush retired from the Navy as a Commander in 2004.

the U.S,.entered World War I. He had 21 months of service in the Army, including six months in France, and was a captain when he was discharged.

John Cecil Shane (1887-1942) helped organize the first military unit in Paragould when

Thomas Streetman (1937-2019) proudly served in the U.S. Air Force as a JAG officer from

Scott E. Smith, Captain, United Stated Marine Corps. From 1985-1988 he served as Judge Advocate stationed at Camp Pendleton assigned as a Trial Counsel and as a Special Assistant U.S. Attorney prosecuting civilian crimes occurring on military bases in Southern California.

He was recalled to active duty 1990-1991 to serve as an infantry platoon commander in Desert Shield/Desert Storm with India Company, 3rd Battalion, 23rd Marine Regiment in Saudi Arabia and Kuwait.

1961 until 1964, where he earned the rank of Captain.

Todd C. Watson, First Lieutenant, U.S. Army, serves with the 326th Trial Defense Team as a Judge Advocate in the Arkansas National Guard. He has been in the Guard since February 2016.

COL Jeffery D. Wood, the State Judge Advocate General.

Photo by Mike Pirnique Vol. 55 No. 1/Winter 2020 The Arkansas Lawyer

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THANK YOU 2019 ArkBar Volunteer CLE Speakers & Planners James L. Acuff J. Todd Allen Mark H. Allison Jess L. Askew, III Michelle Ator Joyce Bradley Babin Donald H. Bacon Judge Kristine G. Baker Senator Robert A. Ballinger Judge Ben T. Barry J. Travis Baxter Jennifer Beaty-West Dean Theresa Beiner Paul T. Bennett David Biscoe Bingham Matthew C. Boch Adam L. Bodeker Anastasia Boles Senator Will Bond Misty W. Borkowski Brian M. Bowen Spencer Sims Bowling Toney Baker Brasuell Judge Timothy L. Brooks Ashlea Brown Judge Barry A. Bryant Representative LeAnne P. Burch Stacey E. Burke Cynthia L. Burleson Melissa A. Burton Dennis Byrd Daniel J. Casamatta William A. Cash, Jr. Professor Carl J. Circo Suzanne G. Clark Sarah Clem Charles T. Coleman Representative Andrew J. Collins John C. Collins, II Judge Cathleen V. Compton David A. Couch Junius Bracy “JB” Cross, Jr. Adam H. Crow Zachary Crowe andre douglas pond cummings Thomas A. Daily Representative Carol C. Dalby Lillian Dee Davenport Jennifer Davis Frederick H. Davis Judge Jodi Raines Dennis Amanda W. Denton Dean John M.A. DiPippa James F. Dowden

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Jack East, III Katelyn Marie Eaves Don R. Elliott, Jr. George Raff Ernst Neemah A. Esmaeilpour Ken Estes Jamie Leigh Ewing Professor Lynn Foster David Allan Gates Ashley Haskins Gill Sarah Gosman Michael Kenneth Goswami Gena H. Gregory Adrienne Morris Griffis Judge Rita W. Gruber Judge David F. Guthrie Karli N. Hannan Jewel H. Harper Raymon B. Harvey Pamela A. Haun Kyle W. Havner Warren Curt Hawkins Teri Hays Judy Simmons Henry Mark Murphey Henry Mauricio A. Herrera Judge Robert Herzfeld Jessica Hoffmann Denise Reid Hoggard Jerry Holder, Jr. Lauren White Hoover Johnathan D. Horton Ashley Welch Hudson Judge Marion A. Humphrey James C. Hunt Christopher M. Hussein Benjamin D. Jackson Anton Leo Janik, Jr. Sarah Coppola Jewell Darnisa E. Johnson Amy Dunn Johnson Judge Phyllis M. Jones Will M. Jones Judge Brad L. Karren Chief Justice John Dan Kemp Matthew A. Kezhaya Judson C. Kidd Robert W. Kiefaber Andrew King Joseph F. Kolb Rex Kyle Jason Lafayette Thane J. Lawhon Paul Ledbetter

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Professor Robert B. Leflar Dr. H. Steve Leslie Tabitha Hubbs Lipscomb Meredith Kristin Lowry Representative John D. Maddox, II Senator Bruce Maloch Angela Michelle Mann P. Drake Mann Judge D. Price Marshall, Jr. Aaron L. Martin Daniel Mathis Richard Hartley Mays Michael E. McAlister Kathy McCarroll Steven Michael McClelland Benjamin R. McCorkle Sarah Murphy McDaniel Kathleen Marie McDonald J. Cliff McKinney, II Robert S. McMahan Paul D. McNeill Abtin Mehdizadegan Jennifer L. Merritt Judge Brian S. Miller Lance R. Miller Matthew Miller Judge Chalk S. Mitchell Brendan T. Monaghan Cristina S. Monterrey Leonardo A. Monterrey Judge James M. Moody, Jr. Charles M. Mooney, Jr. Rodney P. Moore Brooke Moore Michael S. Moore Barbara Morris-Williams Rosalind M. Mouser Ruthanne Nash Murphy Rashauna Norment Gregory J. Northen Phillip Norvell Laura O’Bryan Todd Scott Parker Paul Parnell Gregg Parrish G. Alan Perkins Brian Perlberg Greg Phillips David M. Powell Jeff Priebe William B. Putman, IV Robbin Shumon Rahman Charles A. Redd Judge W. Michael Reif

Christopher Ronald Reinhold Victor Ray Richardson Judge Melissa Bristow Richardson Jeremy Rigsby Bonnie Lee Robertson Gary B. Rogers Jordan Rogers Bianca Rucker Timothy L. Russell Attorney General Leslie C. Rutledge R. Doug Schrantz J. G. (Gerry) Schulze Speaker Matthew J. Shepherd Robert Shields Shon Simpson Graham F. Sloan Daniel H. Smith Aaron L. Squyres Amanda L. Stanton Timothy Steadman Carter C. Stein Tom Stevens L. Christopher Stewart Edward C. Swaim Jeffrey Martin Swann Sarah R. Tacker Louise Elizabeth Tausch Judge Richard D. Taylor Judge Joanna Boyles Taylor Bruce E. Tennant Judge Cindy Thyer Christopher L. Travis Ret. Justice Annabelle Imber Tuck Charles W. Tucker John E. Tull, III Cathy Underwood David B. Vandergriff Vicki S. Vasser-Jenkins U.S. Magistrate Judge Joe Volpe Jack Wagoner, III Andrea D. Walker T. Christopher Walton Kimberly R. Weber Bryson J. Williams David H. Williams Ralph Edwin Wilson, Jr. Jordan Purnell Wimpy Carolyn B. Witherspoon Alan J. York Kim Dickerson Young Danna J. Young Harold Wayne Young Wayne W. Young Dan C. Young

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Arkansas Judges and Lawyers Assistance Program Advocates at Heart Network

By Jennifer Donaldson, LCSW, Executive Director, AR JLAP

With a new year comes new ideas and new avenues for growth and advancement.

Such is the case at the Arkansas Judges and Lawyers Assistance Program and Foundation for the year of 2020. There are several aspects to the Arkansas Judges and Lawyers Assistance Program. However, outside of the primary purpose of providing mental health and recovery services to the legal community, ARJLAP wears many hats! The Foundation’s Mission is to support and enhance the ARJLAP mission through fundraising that assists the Program in reaching members of Arkansas’ legal profession in as many ways as possible. Outreach activities build public trust in the Program by raising awareness, create social interactions to strengthen ties between Program volunteers and the public, and create connections within the legal community.

Keeping in line with that mission, the ARJLAP Foundation relies on a vast network of volunteers to assist the ARJLAP staff and Foundation Board of Directors.

This volunteer network works behind the scenes to ensure the ARJLAP Foundation continues to provide contracted mental

Confidentiality is the Cornerstone Judges, lawyers and law students need to know when they call or come to ARJLAP that their involvement with ARJLAP and their conversations with ARJLAP staff, committee, agents (referrals), or volunteers are confidential. ARJLAP client confidentiality is protected

by Arkansas Judges and Lawyers Assistance Program Rule 10.

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health services across the state. From hosting annual fundraising events, providing CLE opportunities, and corresponding with various donors and sponsors, the ARJLAP volunteer network is vital to the overall mission of the ARJLAP Foundation.

This year, ARJLAP Foundation is looking to expand its volunteer base, by relaunching the program in the 1st quarter of 2020. The Advocates at Heart Network will consist of volunteers, donors, and community partners all invested in the wellbeing of the legal community in Arkansas. Every Advocate at Heart gives of their time and resources in an effort to support and advance the service-driven mission of the Foundation. The Advocates at Heart Network consists of volunteers who will pledge a monthly donation, give service time to ARJLAP-sponsored events, assist in contacting possible donors/sponsors, present educational materials to groups, partner as a community resource, or assist through other talents and connections. The Advocates at Heart volunteer network is vital to the growing needs of the ARJLAP Foundation.

Whether attorney, judge, family member, law student, or community patron, your volunteer service is greatly appreciated. We wish to thank all of those who have so generously given to further the work of ARJLAP, helping the Arkansas legal community maintain mental health and well-being. This furthers the mission of ARJLAP to protect clients, litigants, and the larger community by helping these individuals and families through difficult times.

For more information on how to become a ARJLAP Advocate at Heart, visit arjlap. org/donate or call our office at 501-9072529. 

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The Advocates at Heart Network consists of volunteers who will pledge a monthly donation, give service time to ARJLAP sponsored events, assist in contacting possible donors/sponsors, present educational materials to groups, partner as a community resource, or assist through other talents and connections.

It is estimated that 40% of Arkansas’ attorneys and judges suffer from addiction or mental illness.

JLAP provides family member, judge, attorney and law student assistance in the form of free therapy services.

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Vol. 55 No. 1/Winter 2020 The Arkansas Lawyer

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Center for Arkansas Legal Services Receives $500,000 Grant for Disaster Legal Assistance

By Jennifer Ivory

Surviving a flood is challenging. The dangers of a flood start immediately, but the devastation can last long after the waters recede. Arkansas experienced a record-breaking flood that started on May 21, 2019, and continued until the floodwaters receded in mid-June. In the aftermath, Arkansans were confronted with a multitude of legal needs from this wide-ranging disaster. Most striking, over 857 homes sustained major damage. Of these homes, approximately 97% were uninsured and roughly 21% of the flood victims are low-income, which created an additional hardship for individuals striving to repair their homes.

The Center for Arkansas Legal Services (CALS) recognized the need and immediately began providing educational resources and legal services for flood survivors.

In December of 2019, the Legal Services Corporation awarded a disaster relief grant to CALS to build on these efforts. The $500,000 grant allows CALS to address the needs of flood survivors by expanding pro bono legal services to low-income Arkansans in the 13 affected counties, which are: Arkansas, Conway, Crawford, Desha, Faulkner, Jefferson, Lincoln, Logan, Perry, Pope, Pulaski, Sebastian, and Yell. CALS currently serves the poverty populations in all of these counties, with offices located in Pine Bluff, Russellville, Little Rock, and Fort Smith.

Representative Steve Womack acknowledged the need for the grant. “Flooding devastated the Third District earlier this year, and our communities are still working to fully recover and rebuild. This grant will provide resources to help families in need get back on their feet and move forward. Natural disasters impact people on many different levels, and I’m pleased that Arkansans will have increased access to services that will aid in their disaster recovery.” Senator Boozman 44

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echoed that sentiment, saying, “Arkansans unfortunately know all too well the devastating impact flooding has on their homes and communities. This funding will deliver more opportunities for individuals and families in need of legal services to help them recover from these natural disasters.”

The grant has a twofold purpose of increasing direct access to legal services and expanding the capacity of legal aid staff to address the unique needs of disaster survivors. CALS will make the application process work more smoothly by allowing survivors to apply online and by creating a dedicated disaster relief hotline. The grant will also support community outreach and expanded pro bono recruitment for disasterrelated legal cases.

Direct legal services are essential to making flood survivors whole. Assessing the unique needs of disaster survivors through initial contact with victims and disaster relief stakeholders helped to determine a variety of legal needs, which include: 1) appealing FEMA denials, 2) resolving issues with contractors and contract review, 3) addressing food insecurity due to spoilage and SNAP denials; 4) replacing documents such as driver’s licenses, social security cards, and birth certificates, 5) addressing mortgage and bankruptcy issues, and 6) representing clients with landlord-tenant disputes.

CALS will address these needs through client intake, advice and brief services, pro bono referrals, and representation in court and administrative hearings.

These direct services will put survivors on equal footing with the agencies and companies they will face on their path to recovery. Through community outreach, CALS will collaborate with government agencies, service providers, and non-legal disaster responders to provide educational sessions to the public. These sessions will provide legal information to recent flood survivors, as well as to survivors of potential future disasters.

CALS has already had several success stories, including Ms. Scott’s case. Ms. Scott endured the trauma of watching her house and belongings sustain major damage from the recent Arkansas River flooding. After FEMA denied her claim, due to her unclear ownership rights in the property, she called the CALS helpline. With the help of a CALS staff attorney, she successfully appealed her FEMA denial, obtained almost $6,000 to repair her home, and replaced many of her belongings.

If you are interested in volunteering to help with the case of a disaster survivor, please contact Jennifer Ivory at jivory@ arkansaslegalservices.org. Our staff are also available to make presentations about disaster recovery in your community. For additional information, visit www.arlegalservices. org.  Jennifer Ivory is the Pro Bono Coordinator for Center for Arkansas Legal Services

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Disciplinary Actions ATTORNEY DISCIPLINE ACTIONS Final actions from October 1 – December 31, 2019, by the Committee on Professional Conduct. Summaries prepared by the Office of Professional Conduct (OPC).

Full text documents are available online either at http://www.arcourts.gov and by entering the attorney’s name in the attorney locater feature under the “Directories” link on the home page, or also on the Judiciary home page by checking under “Opinions and Disciplinary Decisions.”

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SURRENDER: HERROD, PAUL E., of North Little Rock, Bar No. 84070, through Case No. CPC 2019-036, petitioned the Supreme Court for the surrender of his law license in lieu of disciplinary proceedings. On December 19, 2019, in No. D-19-880, the Court accepted his petition and removed him as an attorney.

Herrod’s surrender was based on his health and that a non-lawyer employee of his office had engaged in criminal financial conduct against a Herrod client in connection with her employment which led to her arrest. The conduct of the non-lawyer employee was unknown to Herrod at the time. The Herrod employee was a former lawyer who had lost her Arkansas law license before Herrod employed her to work in his law office. The employee was also hired by a Herrod client, where she embezzled funds from that client, for which she currently faces felony theft charges.

MARTIN, DUSTYN CODIE, Bar No. 2016051, of Hamburg, was placed on interim suspension by the Committee on October 18, 2018, after he was charged with a felony offense involving use of funds of a client.

Martin then petitioned to surrender his law license in No. D-19-878 on November 14, 2019, after he entered guilty pleas to several felony offenses in cases in Drew and Ashley Counties on October 30, 2019. He was sentenced to serve 60 months in the ADC, where he now resides, and then 144 months on suspended imposition of sentence involving obtaining funds from others by deceptive means (Drew County charges) and

The Law Offices of Darren O’Quinn 36 Rahling Circle, Suite 4 Little Rock, Arkansas 72223 theft of property (Ashley County charges).

Other charges were nolle prossed as part of the plea deal.

INTERIM SUSPENSION: PETERSEN, PAUL D., Bar No. 2015249, of Mesa and Phoenix, Arizona, also licensed in Arizona and Utah, was placed on interim suspension by Committee order filed October 30, 2019, in No. CPC 2019-033 after he was charged on October 9, 2019, with felony offenses in the United States District Court for the Western District of Arkansas, in case No. 19-cr-50079, related to adoption cases and clients in Arkansas, as well as related felony charges in state courts in Arizona and Utah. The adoption cases usually involved Marshallese Island birth mothers either residing in the USA or brought in from the Marshallese Islands for the purpose of an adoption and adoptive parents in the USA. Petersen currently has an Arkansas federal court trial date in February 2021. He is also a co-defendant in a related civil case in Washington County, No. 72cv-19-2712, concerning many of the Arkansas adoptions.

SUSPENSION: MORLEY, STEPHEN E., Bar No. 79215, of North Little Rock and Arkansas City, in Case No. CPC 2016-120, by Consent Findings and Order filed November 15, 2019, on a complaint by the Arkansas Revenue Department in 2015, had his law license suspended for forty-two (42) months and was assessed $500 costs for his conduct in 20072014 in a matter involving sales tax audits of a Dermott liquor store, Royal Liquor. Two generations of the Lee family of Dermott owned and operated Royal Liquor for many years. Mr. Lee died in 2003, leaving the store to his wife to own and manage. She died in 2016. She was assisted in management of the store by two sons into 2007 and beyond, mainly eldest son Curtis Lee. A state tax audit in late 2007 resulted in an assessment of $244,201. The Lee protest of that assessment was withdrawn by Morley. In December 2007, by a deed prepared by the Gibson Law Office of Dermott, Mrs. Lee conveyed title of the realty where Royal Liquor was located to her son Dennis Lee. Morley then prepared the documents for

Vol. 55 No. 1/Winter 2020 The Arkansas Lawyer

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what appeared to be a sale and transfer of Royal to Shaun Perry, a retired police officer and Lee family friend, in late 2007 for a cash price of $40,623, conditioned upon DF&A clearing the sale to Perry, by not demanding the payment of the Royal lien balance of about $203,578 so ABC would issue the Royal liquor license to Perry. The $40,623 Morley sent to DF&A came to Morley from the Lees, not Perry. DF&A approved the sale in early February 2008. At the same time, Mrs. Lee then executed a deed prepared

by Morley’s office conveying the Royal real property to Perry’s company, the same property she had deeded just prior to the sale to her son Dennis Lee. Dennis never appears to have deeded the Royal property to Perry or Block. The Lee-to-Perry transaction was a sham paper sale, as Morley also prepared documents by which the Lees maintained operational control of the store and had a buyback option from Perry which set the option fee at $250 and the repurchase price for the store at $500 for the Lees. Perry did not receive any consideration or compensation for owning the store. The state effectively lost about $203,000 in this transaction. Perry later wanted out of the liquor store deal and in 2010 Morley prepared a similar paper transaction from Perry to another Dermott

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resident, Raymond Block, a truck driver and Lee family friend. After the transfer to Block, the Lees continued to operate the store. Block received no compensation or consideration from the store, as its owner on paper.

In 2012-2013, Royal was again audited

by DF&A, resulting in a new assessment of $296,650, plus $88,804 in interest and a penalty of $29,665. Morley represented Royal in the protest. He also tried to represent Curtis Lee, Perry and Block, each of whom was being held liable for the assessment.

DF&A claimed Morley had a conflict in trying to represent Lee, Perry and Block in the matter, given his documentation that had each of the three indemnifying the others.

Morley withdrew. Chuck Gibson tried to step in but DF&A claimed he also had conflicts.

Income tax records showed only Curtis Lee had income from Royal during the audit periods; Perry and Block had none.

In July 2014, Gibson tried to present DF&A a deal by which another family would buy Royal and its licenses for $101,000 cash at closing, conditioned upon DF&A getting ABC to issue the licenses to the new purchasers without demanding payment of the 2013 assessment balance of $195,650, not including interest and penalty. This deal fell through, the Royal licenses were not renewed, and the store closed in mid-2014. A hearing conducted in October 2014 resulted in Curtis Lee, Perry, and Block each being hit with a judgment and resulting recorded tax lien for $296,664. Perry contested the lien but was denied relief in early 2015. With the help of the Gibson Law Firm of Dermott, Lee and Block managed to deed and transfer title to their residential properties to third parties before the October 2014 hearing and before resulting large liens were recorded locally.

Perry was not so lucky, as the lien is now on his home.

In his consent, Morley admitted violations of Rules 1.1, 1.7(a), 1.9(a), 1.9(b), 1.9(c), and 8.4(d). He did not contest that OPC could submit evidence of conduct which could likely sustain violations of Rules 4.1(a), 4.3, 8.4(a), and 8.4(c). Morley also presented evidence of significant health issues and his age as part of the consent.

REPRIMAND: LILLY, MARTIN E., Bar No. 90098, of Jonesboro, in Case No. CPC 2012-082, by Consent Findings filed October 18, 2019, was reprimanded for violations of Rules 1.3 and 1.15(b)(1) for his conduct in handling settlement funds for two minors from the

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death of their mother. In late 2004 Lilly was ordered to place $59,500 in settlement funds due to two minors into a restricted-access bank account until they became adults. In 2008, Lilly received a document from a credit union which appeared to acknowledge its receipt of the $59,500 into two guardianship accounts opened by the minors’ grandfather and Lilly thereafter believed the funds were where they were supposed to be. He did not check his trust account records close enough to notice that no check from his account to the credit union ever cleared his bank. In late 2011, when one of the minors became of age and asked for his funds, the credit union denied receiving the funds for the young men. Lilly was confronted with the issue and upon investigation realized he had not actually transferred the funds and the funds has since been used for other purposes.

Lilly replaced the funds and interest, totaling $70,000, in November 2012, by his payment to the attorney for the minors’ grandfather.

McCAULEY, RHONDA, Bar No. 2000024, of Fort Smith and Rogers, Arkansas, in Case No. CPC 2019-020 by Consent Findings and Order filed on December 13, 2019, was Reprimanded for violations of AR Rules

1.4(a), 1.16(d), and 8.4(d), ordered to pay $3,720 in Restitution to Douglas Hall and Amilcar Cornejo, and assessed $250 in costs. McCauley represented Cornejo in immigration matters, but McCauley failed to adequately communicate. Hall retained new counsel, and McCauley failed to refund advanced payment of fees that were not earned. Cornejo and his spouse Hall filed suit against McCauley in 66FCV-2016-597 and were awarded a judgment.

RHODEN, SUMMER M., Bar No. 2010208, of Memphis, Tennessee, in Case No. CPC 2019-010 by Findings and Order filed December 3, 2019, was Reprimanded for violations of AR Rules 8.4(b) and 8.4(d) and assessed $50.00 costs. Rhoden entered a guilty plea in criminal court in Shelby County, Tennessee (Memphis) to the offense of Criminal Attempt T.C.A. § 39-12-101, a misdemeanor, for her failure to turn into law enforcement a family member who was a suspect in a homicide, for which she received supervised probation for one year. 

Vol. 55 No. 1/Winter 2020 The Arkansas Lawyer

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Arkansas Bar Foundation Report by Ann Dixon Pyle, Executive Director, Arkansas Bar Foundation

Memorials The Arkansas Bar Foundation acknowledges with grateful appreciation the receipt of the following memorial, honoraria and scholarship contributions received during the period November 1, 2019, through January 31, 2020.

In Memory of Edward Wayne Boyce, Jr. Rosalind and Kirby Mouser In Memory of Beresford L. Church Mike Wilson In Memory of Sidney P. Davis Cary E. Young In Memory of George D. Ellis Judge Henry Woods Inn of Court Philip E. Kaplan Hayden and Gordon S. Rather, Jr. Brian Rosenthal Judge Bill Wilson and Judge Cathi Compton In Memory of Joe M. Fore Cary E. Young In Memory of Judge John Forster Rosalind and Kirby Mouser In Memory of Vincent W. Foster, Jr. Arbor Enterprises In Memory of Judge Melinda Gilbert Judge Dick and Beverly Moore In Memory of Melva Harmon Rosalind and Kirby Mouser In Memory of Judge B. Kenneth Johnson Fred Ursery In Memory of Elizabeth Ann Lancaster Hayden and Gordon S. Rather, Jr. In Memory of James H. McKenzie Judge James M. Moody In Memory of Judge William Overton Judge James M. Moody In Memory of Nicholas H. Patton Judge Robert T. Dawson Judge James M. Moody Hayden and Gordon S. Rather, Jr. Brian Rosenthal

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The Arkansas Lawyer

www.arkbar.com

In Memory of Nicholas H. Patton (cont.)

Fred Ursery Judge Bill Wilson and Judge Cathi Compton In Memory of Richard A. Reid Justice Robert H. Dudley John V. Phelps In Memory of Barrett Spears Cary E. Young In Memory of John Walker Fred Ursery In Memory of Roxanne Tomhave Wilson Judge James M. Moody Judge Dick and Beverly Moore In Memory of William H.L. Woodyard Judge Dick and Beverly Moore In Memory of Elizabeth G. Young Cary E. Young In Memory of Judge Gordon Young Cary E. Young

McKinley Family Scholarship Fund Jeffrey and Lester McKinley In Honor of Judge Bill Wilson In Honor of Judge Cathi Compton Hayden and Gordon S. Rather, Jr. In Honor of Richard Downing Richard M. Pence, Jr. Mary Carole Young Smith Donald M. Spears Judge H. David Young Patrick M. Young Paul B. Young, Jr. Given by Cary E. Young The Arkansas Bar Foundation is grateful for a generous contribution from Col. Wm. A. (Bill) Martin Establishing the Col. Wm. A. (Bill) Martin Scholarship Fund

In Memory of Paul B. Young Cary E. Young SCHOLARSHIP CONTRIBUTIONS, HONORARIA AND OTHER GIFTS Arkansas Bar Foundation Marion B. Burton Judges Rita and Wayne Gruber Arkansas Bar Foundation #GivingTuesday Kathryn A. Stocks Judge Cindy Thyer In Honor of Steve Engstrom Judge James M. Moody Friday, Eldredge & Clark/Hershel Friday Scholarship Friday, Eldredge & Clark

A total of $200.00 in funds were raised through #GivingTuesday 2019 for the #CelebratingtheCentennial program.

These funds allowed the Foundation to help sponsor the American Bar Association’s 19th Amendment traveling exhibit that was displayed February 6-7 at the Arkansas Bar Association’s Mid-Year Meeting.

SAVE THE DATE! Wednesday, June 10, 2020 • 11:00 am* Arkansas Bar Foundation Membership Meeting with Foundation Board Meeting immediately to follow 7:30 pm Arkansas Bar Foundation Fellows’ Dinner • Hot Springs Convention Center *please note new time

in memoriam Jack Norwood Boyd, Jr., 61, of Texarkana, Texas, died December 9, 2019, at the age of 61.

Jack graduated from the University of Houston in 1981 and the University of Houston College of Law in 1985, cum laude.

Jack passed the Texas Bar exam and began a distinguished legal career in 1985 in Texarkana,TX. George D. “Bucky” Ellis of Benton died November 24, 2019, at the age of 73. Bucky was a long-time attorney practicing in Saline County, a member of the Arkansas Bar Association, and a Fellow of the Arkansas Bar Foundation. Bucky had three appointments as Special Justice to the Arkansas Supreme Court. He was a delegate to the Arkansas Constitutional Convention in 1968.

Judge William (Bill) Ralph Hass of Springfield, Missouri, died December 30, 2019, at the age of 83. Bill graduated from the University of Arkansas School of Law Fayetteville in 1962.

After having served two years in the U.S. Army at Fort Hood, Texas, Bill began his legal career in 1964 in private practice with the Niblock Law Firm in Fayetteville. In 1990 Bill was elected the Associate Circuit Judge for Oregon County, Missouri, and served in that position until 2003. He served as a part-time senior judge for the state of Missouri from 2003 until 2017.

Judge Tom Garner of Ash Flat died November 3, 2019, at the age of 60.

Garner spent more than 30 years practicing as an attorney and also served as a prosecuting attorney for 16 years prior to closing down his practice when he was appointed to the position of Third Judicial Circuit Judge in February 2019.

Thomas S. Streetman of Crossett died December 1, 2019.

He was a founding member of Streetman & Gibson PLLC, and a member of the Arkansas Bar Association, the Arkansas Bar Foundation, and the Debtor-Creditor Bar Association of Central Arkansas. He served as Crossett City Attorney from 1967 until 1998. He proudly served in the U.S. Air Force as a JAG officer from 1961 until 1964, where he earned the rank of Captain. Tom attended the University of Arkansas where he received a BA in 1959, and a JD from the University of Arkansas Law School. He was associate Editor of the Arkansas Law Review.

Paul Leo Giuffre died January 2, 2020, at the age of 86. He graduated from College of the Holy Cross in 1954 and received a Master of Arts degree from the University of Pennsylvania in 1955.

He served in the U.S. Navy from 1955-57. He received a Juris Doctorate degree from the University of Arkansas Law School in 1961. He practiced law in Fort Smith, first at Daily and Woods and then as a senior partner at Warner and Smith, before starting a solo practice.

Anne Shelton Parker of Little Rock died November 22, 2019, at the age of 76. In 1965, she graduated with a Bachelor of Science in Accounting from Arkansas State University. In 1968, Anne received a Master of Arts in English from the University of Kentucky. After moving to Little Rock in 1976, Anne joined the second-ever class of students at UALR’s School of Law and graduated first in her class in 1979.

Following law school, she was a clerk for

Judge Richard S. Arnold. Upon completion of her clerkships in 1981, Anne became an associate attorney at the Mitchell Law Firm and was one of the first three women to become partners in the firm.

Nicholas H. Patton of Texarkana, Texas, died November 2, 2019, at the age of 80. He graduated from the University of Arkansas, both undergraduate and law school. Nick received many honors during his long career, among them serving as President of the Texarkana Bar Association, being named Outstanding Trial Lawyer of 1994 by the Arkansas Trial Lawyers Association, and becoming a member of the American College of Trial Lawyers and the International Society of Trial Lawyers.

John W. Walker, Sr., of Little Rock died October 28, 2019, at the age of 82. Walker graduated from Arkansas AM&N in 1958; received a master’s degree from New York University in 1961; and in 1964 received a law degree from Yale University. Walker’s first work was as an attorney with the NAACP Legal Defense Fund in New York.

He remained associated as a cooperating attorney and later as a member of the Board of LDF. Walker began the general practice of law in Little Rock with an emphasis on civil rights. In 1968, he opened one of the first three racially integrated law firms in the south, first known as Walker and Chachkin.

Walker was a Democratic member of the Arkansas House of Representatives representing District 34. The Arkansas Bar Foundation and Arkansas Bar Association honored him with the Outstanding Lawyer Award in recognition of excellence in the practice of law and outstanding contributions to the profession.

The information contained herein is provided by the members’ obituaries.

Vol. 55 No. 1/Winter 2020 The Arkansas Lawyer

51

Nomination Form for the Arkansas Bar Association Legal Hall of Fame Please use this form to nominate a person, group, organization or event for the Arkansas Bar Association Legal Hall of Fame. Launching in 2020, the Legal Hall of Fame will honor Arkansas’ greatest lawyers, most revered institutions, most treasured traditions and other legends of the Bar. Please use this form to nominate one person, group, organization or event. Please submit multiple nomination forms if you wish to nominate more than one person, group, organization or event.

Any person is welcome to submit a nomination. The form is also available online at www.arkbar.com/events/hof.

ELIGIBILITY REQUIREMENTS: For an individual to be eligible for inclusion in the Hall of Fame, the nominee must: 1. Meet one of these two criteria: a. Be a living person at least 50 years old; or b. Be deceased for at least three years.

This requirement may be waived by a supermajority of the Selection Committee.

2. Have an articulable connection to the state of Arkansas, including but not limited to: (i) born in Arkansas; (ii) reared in Arkansas; (iii) educated in Arkansas; or (iv) practiced law in Arkansas.

3. Have made an extraordinary contribution to the law, society, the administration of justice or legal education.

For a group, organization or event, the nominee must have a close and clearly articulable connection to Arkansas. National groups, organizations or events where Arkansas is just one of many affected areas are not eligible for consideration. For example, the American Bar Association would not be an eligible organization and the signing of the United States Constitution would not be an eligible event. The group, organization or event must have existed for at least 25 years or occurred at least 25 years ago. The group, organization or event must have made an extraordinary contribution to the law, the administration of justice or legal education. No person, group, organization or event may be selected for the Hall of Fame more than once, though a person who is also a member of a group, organization or event may be separately honored.

You may find the complete guidelines for selection at www.arkbar.com/events/hof. This nomination form, along with the required attachments, is due on or before March 16, 2020. Please send the nomination form and attachments to: hof@arkbar.com.

If you have any questions, please contact Karen K. Hutchins at (501) 801-5663.

General Questions: 1. Name and contact information of the person submitting this nomination: Name:______________________________________ Address: _____________________________________________________ Phone:______________________________________ Email: _____________________________________________________ 2. Name of the person, group, organization or event being nominated: __________________________________________________ _______________________________________________________________________________________________________ 3. Contact information of the nominee (if applicable). If the nominee is deceased, please list living next of kin or other possible representative of the nominee if known: __________________________________________________________________________________ _______________________________________________________________________________________________________ 4. Concise statement regarding the nominee’s connection to the state of Arkansas: _______________________________________ _______________________________________________________________________________________________________ _______________________________________________________________________________________________________ _______________________________________________________________________________________________________ Questions Applicable to Individuals: 1. Birthdate: _____________________________________________________________________________________________ 2. Birthplace: ____________________________________________________________________________________________ 3. Date of Death (if applicable): ______________________________________________________________________________ 4. Residence at Death (if applicable): __________________________________________________________________________ Required Attachments (use separate pages or include in separate files): 1. A general statement of why the nominee should be in the Hall of Fame (not to exceed 750 words); 2. A resume or vita of the nominee (if available); and 3. Up to two letters of recommendation.

Deadline March 16

CASE STUDY

Arkansas Bar Association Publications on Fastcase The Arkansas Bar Association has partnered with Fastcase to revamp our pubications programs. Deskbooks are now available in new print editions, as PDFs and within the Fastcase legal research system.

How to order: Go to www.fastcase.com/ product-category/arkbar • Find the handbook you want, and choose “Select Option.”

• Choose from print copy or pdf download, and then add to cart.

• Click on “View Cart,” enter your discount code* in the “Coupon” box, and then click “Apply Coupon.”

THE FOLLOWING BOOKS ARE NOW AVAILABLE:

Note: ArkBar Handbooks are also available through the Fastcase legal research tool for a yearly subscription.

FULL COURT PRESS

ArkBar Handbooks

Retail Price

Member Price

Arkansas Business Associations Handbook

$275.00

$175.00*

Arkansas Construction Law Manual

$275.00

$175.00*

Arkansas Elder Law Desk Manual

$225.00

$125.00*

Arkansas Probate System

$225.00

$125.00*

Arkansas Workers Compensation Desk Book

$225.00

$125.00*

Guide to Arkansas Statutes of Limitations

$300.00

$25.00*

Handling Appeals in Arkansas

$225.00

$150.00*

Handling Appeals in Arkansas Supplement

$150.00

$50.00*

Revocable Trusts Handbook for Arkansas Practitioners

$225.00

$125.00*

Standards for Examination of Real Estate Titles in Arkansas

$75.00

$45.00*

Call Michele Glasgow at the Arkansas Bar Association at (501) 801-5661 to obtain discount code. *

Handling Appeals in Arkansas Includes 2019 Supplement

Coming Soon: • • •

Arkansas Form Book Domestic Relations Handbook Arkansas Debtor-Creditor Handbook

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