Lawyer
The Arkansas
A publication of the Arkansas Bar Association
Vol. 57, No. 1, Winter 2022
Inside: Arkansas Stare Decisis Arkansas Constitution Arkansas New Uniform Laws Arkansas Supreme Court Rule XIV
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PUBLISHER Arkansas Bar Association Phone: (501) 375-4606 Fax: (501) 421-0732 www.arkbar.com EDITOR Anna K. Hubbard EXECUTIVE DIRECTOR Karen K. Hutchins PROOFREADER Cathy Underwood EDITORIAL BOARD Anton Leo Janik, Jr., Chair Melody Peacock Barnett Luke K. Burton Haley M. Heath Ashley Welch Hudson Jim L. Julian Philip E. Kaplan Tory Hodges Lewis Drake Mann Gordon S. Rather, Jr. William A. Waddell, Jr. Brett D. Watson David H. Williams Nicole M. Winters OFFICERS President Bob Estes President-Elect Joe F. Kolb Immediate Past President Paul W. Keith Secretary Glen Hoggard Treasurer Brant Perkins Parliamentarian Brent Eubanks YLS Chair Payton C. Bentley BAR ASSOCIATION STAFF Executive Director Karen K. Hutchins Executive Administrative Assistant Michele Glasgow Director of Government Relations Jay Robbins Director of Education & Operations Kristen Frye Data Integrity Specialist Alexis Teal Director of Finance & Administration Yan Chen Membership Administrator Janet K. Marshall Office & Data Administrator Cynthia Barnes Publications Director Anna Hubbard
The Arkansas Lawyer (USPS 546-040) is published quarterly by the Arkansas Bar Association. Periodicals postage paid at Little Rock, Arkansas. POSTMASTER: send address changes to The Arkansas Lawyer, 2224 Cottondale Lane, Little Rock, Arkansas 72202. Subscription price to nonmembers of the Arkansas Bar Association $35.00 per year. Any opinion expressed herein is that of the author, and not necessarily that of the Arkansas Bar Association or The Arkansas Lawyer. Contributions to The Arkansas Lawyer are welcome and should be sent to Anna Hubbard, Editor, ahubbard@arkbar.com. All inquiries regarding advertising should be sent to Editor, The Arkansas Lawyer, at the above address. Copyright 2022, Arkansas Bar Association. All rights reserved.
The Arkansas
Lawyer Vol. 57, No. 1
features 10 Arkansas Precedent on the Law of Precedents: Where Have We Been and Where Are We Now? By Tory Hodges Lewis and Brett D. Watson 16 A Report from the 2021 National Conference of Commissioners on Uniform State Laws By J. Cliff McKinney II 20 Understanding the 2017 Revisions to the Arkansas Pro Hac Vice Rule By Andrew King and Harper L. Kiefer
26 Observations and Reflections on Litigating and Judging Under the Arkansas Constitution By Justice Shawn Womack and Christian Harris
Cover photo of the Historic Washington County Courthouse in Fayetteville. The courthouse is located in downtown Fayetteville (home of ArkBar President Bob Estes) at the corner of Center Street and College Avenue. The Historic Courthouse was completed in April 1905. It housed the City of Fayetteville's administration offices until 1927 and Washington County's administration until the purchase of the courthouse at College and Dickson in 1990. The building underwent a restoration between 2006 and 2010. It now serves as home to County Archives and the Washington/ Madison County Drug Court - Arkansas' 4th Judicial Circuit Court, Division 4. For the full article by Tony Wappel on the history of the courthouse, please visit https://www.washingtoncountyar.gov/government/departments-a-e/ archives/history-of-the-historic-washington-county-court-house.
Contents Continued on Page 2
Lawyer The Arkansas Vol. 57, No. 1
in this issue ArkBar News
4
Public Service Academy
19
Arkansas Access to Justice
32
Disciplinary Actions
33
In Memoriam
35
Arkansas Bar Foundation
36
columns
President’s Report Bob Estes
7
Young Lawyers Section Report Payton C. Bentley
9
Thank you to ArkBar Speakers and Planners 40
Board of Trustees
District A1: Geoff Hamby, Jason B. Hendren, Timothy R. Scott, Kesha Zaffino District A2-A3: Evelyn E. Brooks, Leslie Copeland, Jason M. Hatfield, Brian C. Hogue, Sarah C. Jewell, Kristin L. Pawlik, George M. Rozzell, Russell B. Winburn District A4: Kelsey K. Bardwell, Craig L. Cook, Brinkley B. Cook-Campbell, Dusti Standridge District B: Michael S. Bingham, Randall L. Bynum, Thomas M. Carpenter, Tim J. Cullen, Bob Edwards, Jesse J. Gibson, Steven P. Harrelson, Michael M. Harrison, Rachel Hildebrand-Kane, Anton L. Janik, Jr., Jamie H. Jones, Victoria Leigh, Jessica V. Mallett, William C. Mann III, Skye Martin, Stefan McBride, Kathleen M. McDonald, J. Cliff McKinney II, Jeremy M. McNabb, Molly M. McNulty, David S. Mitchell, Jr., Meredith S. Moore, John Ogles, Emily M. Runyon, Carter C. Stein, Danyelle J. Walker, Patrick D. Wilson, George R. Wise District C5: Melanie A. Beltran, Joe A. Denton, Todd C. Watson, William Z. White District C6: Bryce Cook, Paul N. Ford, Paul D. Waddell, Ryan Wilson District C7: Kandice A. Bell, Laurie Bridewell, Sterling T. Chaney, R. Margaret Dobson Delegate District C8: Carol C. Dalby, Amy Freedman, Wm. Blake Montgomery, Taylor A. King At Large Members: Paul W. Keith, Payton C. Bentley Liaison Members: Dean Theresa M. Beiner, Interim Dean Alena Allen, Denise Reid Hoggard, Gregory J. Northen, Judge Edwin A. Keaton, Curtis E. Hogue
2
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ArkBar News Ballots Due March 18, 2022 for ArkBar 2022 Elections Ballots for positions on the Board of Trustees and office of President-Elect were distributed February 15, 2022. The deadline for filing was January 31, 2022. Members in District A 2-3 will each receive a ballot in conjunction with their ballot for President. In those districts, each Association member will have the ability to vote for the number of available seats (3 votes in A 2-3 & 9 votes in B). The top 3 vote recipients in District A 2-3 and the top 9 vote recipients in District B will be elected.
Electronic ballots will be delivered from AssociationVoting.com. Be sure to add announcement@ associationvoting.com to your address book to prevent the email from going to your junk mail or being blocked by your spam filter. Paper ballots will be mailed to members who do not have an email address on file or who have opted out of electronic communications from the Association. For questions contact Michele Glasgow at mglasgow@arkbar.com or 501-801-5661.
Two Members Announce Their Candidacy for Association President Kandice Bell and Margaret Dobson have announced their candidacies for President-Elect of the Arkansas Bar Association. Association members will receive ballots either electronically or by mail on February 15, 2022. The candidate receiving the highest number of votes cast in the election becomes the President-Elect Designee, and succeeds to the office of President-Elect at the conclusion of the 2022 Annual Meeting. Members are encouraged to vote and return their ballots by March 18, 2022. I want to be your next Association president to continue our rich traditions while creating more spaces to learn, grow and lead. Over two decades as a licensed attorney, I realize that I am still learning what it takes for any of us to be great. My goal is to help lawyers and strengthen our Association. My leadership experience includes House of Delegates, Board of Governors, Kandice A. Bell and Board of Trustees. I have been recognized by six Association presidents for the contributions I have made to make us a better organization. With your vote, I seek the position of President-Elect.
In this digital age, we need to continue to promote the personal connections that improve our profession. Individually we represent diverse clients, but as an association, we represent all our members. We must work together to serve our members, improve access to justice, and educate the public. I am a solo practitioner with service Margaret Dobson to our Association in Sections, House of Delegates, Board of Trustees, and Executive Council. I have also held leadership positions in my local bar association, Rotary, Law School Committees, and various organizations. I ask for your vote to serve as President-Elect of your Arkansas Bar Association.
Board of Trustees Candidates Below are the candidates for the Board of Trustee’s 20 open seats. Three open seats in District A 2-3 (Washington County) and nine open seats in District B (Pulaski County) will be decided by election. The remaining eight open seats received no opposition. Those eight candidates are: District A-1 (Benton Co) Geoff Hamby; District A-4 (Sebastian to Boone Co) Craig Cook; District C-5 (North Central AR) two seats Joe Denton and Tyler Henderson; District C-6 (Northeast AR) Paul Ford; District C-7 (Southeast AR) Taylor King; District C-8 (Southwest AR) two seats, Carol Dalby and Connie Grace. There are four candidates seeking the three open seats in District A 2-3. In alphabetical order they are: Matthew Benson,
Richard Elliott, Jason Hatfield and Michelle Jaskolski. There are 10 candidates seeking the nine open seats in District B. In alphabetical order they are: Tim Cullen, Jessica Virden Mallet, Chase Mangiapane, Skye Martin, Stefan McBride, Kathleen McDonald, Jeremy McNabb, Casey Carder Rockwell, George Wise and Edward Zellmer. Ballots will be issued to members residing in those two districts for the election of these candidates. Voting will take place through Friday, March 18, when all ballots must be submitted. Thanks to each of these candidates for their willingness to serve and promote our Association.
Learn more about the candidates and elections at: https://www.arkbar.com/for-attorneys/governance-nav/elections 4
The Arkansas Lawyer
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Oyez! Oyez!
Deadline for submission of Annual Award Nominations Friday, March 18, 2022
APPOINTMENTS AND ELECTIONS The University of Arkansas School of Law announced that Alena Allen, associate dean for research and faculty development and professor of law, has been named interim dean of the School of Law effective Jan. 1, 2022. C. C. “Cliff ” Gibson III of Gibson and Keith Law Firm in Monticello was elected Chairman of the Board of Trustees of the University of Arkansas System. Cale Block of Barber Law Firm PLLC has been appointed to the Board of Directors for Ronald McDonald House Charities® of Arkansas. WORD ABOUT TOWN
Allen Dobson and Andrew Vines have joined together to form the law firm of Dobson & Vines, PLLC. Arkansas Access to Justice announced that Abby Brenneman joined the staff as the new Program Coordinator. Hall Booth Smith, P.C. announced that Baxter D. Drennon joined the firm as a partner in the Little Rock office. The firm also announced the opening of a new office in Rogers. Partner Jason B. Hendren will manage the new Rogers office. Of Counsel Ryan P. Blue is joining Hendren in the Rogers office. Christopher R. Heil has joined Taylor King Law of Little Rock. Friday, Eldredge & Clark, LLP announced that Katherine C. Campbell has been elected as partner within the firm. Sarah Ort has been promoted by Stone Bank to Senior Vice President and Chief Legal Counsel. Jonathan Warren has joined Stephens, Inc., as Compliance Counsel. James M. Graves has joined Crouch, Harwell, Fryar & Ferner, PLLC, in Springdale. The partners of Wright Lindsey Jennings announced that four attorneys have been elected into partnership: Jake Fair, Quinten Whiteside, Meredith Lowry and Jennifer Smith. Kutak Rock LLP has elected Pierce G. Hunter (Little Rock) and Scott E. Wray (Fayetteville) as new partners. The law firms of Wright Lindsey Jennings (WLJ) and Dover Dixon Horne PLLC (DDH) announced a strategic partnership effective January 1, 2022, that will unite the two firms under the WLJ umbrella.
ArkBar Welcomes New Staff Member Janet K. Marshall joins the Association’s staff as the Membership Administrator. A native of Wynne, Arkansas, Janet is a graduate of Baylor University in Waco, Texas. She married fellow Baylor graduate and Texas native, Matt Marshall. They settled in Little Rock and raised two sons, Garrison and Reece. Janet began a career as a professional, nonprofit fundraiser and event planner in Little Rock in 1992. Prior to joining the staff at the Arkansas Bar Association, she was the Vice President of Development at The Methodist Foundation for Arkansas since 2001. Janet’s Janet Marshall community involvement activities include P.E.O. Arkansas State Chapter Secretary; member of P.E.O. Arkansas Chapter AL; and member Arkansas Chapter - Alpha Chi Omega Sorority Alumnae. Janet enjoys spending time with her family and friends, cooking, reading, and taking beach trips. She is also learning how to play mahjong. “We are excited to have Janet join our team,” Executive Director Karen K. Hutchins said. “Her extensive experience with nonprofits both as a professional and as a volunteer will be a great asset to the Association. Janet is looking forward to getting out and meeting with members to learn how we can add value to membership.”
It is time to nominate deserving candidates for this year’s Arkansas Bar Foundation and Arkansas Bar Association Annual Joint Awards. The awards open for nomination are: • • • • • • •
Outstanding Lawyer Award Outstanding Lawyer-Citizen Award C.E. Ransick Award of Excellence James H. McKenzie Professionalism Award Equal Justice Distinguished Service Award Outstanding Jurist Award Outstanding Local Bar Association
These awards will be presented at the Annual Meeting in June. You are encouraged to nominate Arkansas lawyers, judges and local bar associations who deserve recognition. Nomination forms may be submitted by any Association member or Foundation Fellow. Forms are available at https://bit.ly/3HrlTlo or you may submit a written letter of nomination to Ann Pyle at the Arkansas Bar Foundation at 2224 Cottondale Lane, Little Rock, Arkansas 72202. Please call Ann Pyle at 501-8015670 with any questions. Submit your Oyez! news to ahubbard@arkbar.com. Look for the Oyez feature with photos in ArkBar's Monthly Electronic Member Newsletter. Visit arkbar.com /for-attorneys/publications/ member-newsletter.
Vol. 57 No. 1/Winter 2022 The Arkansas Lawyer
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ANNUALH A L L O F MEETINGFA M E GAL H L ALELGA OF FA L E GALLELet’s L ME Get Together! FA M E
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June 15-17, 2022 LEGA L H A L L O F FA M E A R K A N S A S B A R A S S O C I AT I O N
HALL O
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Joint Meeting with the Arkansas Judicial Council Hot Springs Convention Center
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Watch for more information coming soon at www.arkbar.com/annualmeeting/home
LEGA HO AFLFA L MOE F FA M E L E GAL HLALL A R K A N S A S B A R A S S O C I AT I O N
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A R K A N S A S B A R A S S O C I AT I O N
HAL
L HHAAL POSTHUMOUS L LO O F FFA M E Philip S. LEGA Anderson
Honoring A MElegal legacies. Senator David Pryor
FA M E Judge Richard Arnold
A R K A N S A S B A R A S S O C I AT I O N Secretary Rodney Slater Scipio Africanus Jones
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ARK ANSAS BAR
ARK ANSAS BAR
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LEGA L H A Governor LL O F FA M E Sidney McMath
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Little Rock Nine
Presented by the Arkansas Bar Association and Arkansas Business September 2022
The Arkansas Bar Association Hall of Fame recognizes the men and women who have made an extraordinary
6 The Arkansas Lawyer www.arkbar.com
contribution to the law, society, the administration of
A R K A N S A S B A R A S S O C I AT I O N
LE GAL H A LL OF FA ME
Honoring legal legacies. A R K A N S A S B A R A S S O C I AT I O N
ARK ANS
LEG
LE GA L H A LL OF FA ME
The Arkansas Bar Association Hall of Fame recognizes the men and women who have made an extraordinary
PRESENTING
contribution to the law, society, the administration of justice and legal education. We invite all Arkansans,
SPONSOR:
not just the legal community, to join us in celebrating those who have helped shape justice and positively impacted our profession and state.
Thursday, September 24, 2020 Wally Allen Ballroom, Statehouse Convention Center Reception 6 p.m. / Dinner and Ceremony 7-9 p.m. Tickets: $150, $1,500 for a table of 10
For more information and to purchase tickets:
Arkansas Business.com/LegalHallOfFame Contact Tiffany Mattzela at 501-455-9334 or TMattzela@ABPG.Com for details and sponsorship questions.
PRESEN
SPONS
PRESIDENT'S REPORT
Members Matter The Association brings lawyers from different backgrounds, different practice areas, and different geographic locations throughout the state together into one voluntary Association supporting the legal profession. Each of you are the face of the Association. We work together to promote the effective and efficient administration of justice. We work together as one profession to accomplish common goals. The leadership and support of our members are invaluable to our profession. We work to create valuable experiences for our member lawyers, so they find value in supporting their Association. Here are just some of those efforts: Part of our membership drive this year was providing six free hours of on-demand CLE. Be sure to take advantage of this perk if you haven’t already. Register here for your free CLE: https://eazyform.app/form/mf47246392. Jason Hendren has led a Membership Task Force this year that has made fantastic outreach efforts to members who had not yet renewed for this bar year. The task force was responsible for recruiting over one-third of our nonrenewals this past quarter. Thank you to the following task force members: Kandice A. Bell, Thomas M. Carpenter, Craig L. Cook, Amy Freedman, Geoff Hamby, Brian C. Hogue, Jamie Huffman Jones, Mary Catherine McNulty, Kristin L. Pawlik, George M. Rozzell, Emily Moss Runyon, Paul D. Waddell, Danyelle J. Walker and William Zac White. Our sections have some great CLE lined up for this Spring, including some longstanding esteemed annual conferences— Natural Resources Institute, Environmental, Debtor-Creditor, Construction and
Bob Estes is the President of the Arkansas Bar Association. He is a solo practitioner in Fayetteville.
Workers’ Compensation. If you are a member of a section you get $25 off your section’s CLE as part of your member benefits this year. We also have a task force on legal research to review benefits valuable to our members. Thank you to the following Trustees for serving on this task force: Kelsey Kaylyn Bardwell, Payton C. Bentley, Leslie Copeland, Glen Hoggard, Jamie Huffman Jones (chair) and Immediate Past President Paul W. Keith. We held our first session of the 2nd Public Service Academy in November and will host the second session this Spring. The first Academy originated with Past President Brian Rosenthal in 2019, and the number of people who have gone on to serve in public service in both the public and private sector is phenomenal. The Association sponsors the Academy along with the University of Arkansas Clinton School of Public Service, in Association with the UA Little Rock Bowen School of Law and the University of Arkansas School of Law. The Academy is for member lawyers and law students who are interested in public service in any capacity. The steering committee is chaired by Michael Goswami and Nate Looney and vice chaired by Skye Martin and Madhav Shroff, both of whom served in the inaugural class. The list of Academy participants can be found on page 19 of this issue. The members of the Young Lawyers Section (YLS) have for many years provided hours of volunteer labor to produce the Guide to Arkansas Statutes of Limitations, one of your free member benefits. The YLS has once again stepped up to the challenge and is now working on the Ninth Edition.
Please consider volunteering your time for this valuable project and respond to Payton Bentley’s call for volunteers on page 9. We are in the process of reviewing all our handbooks to see which ones need to be updated, and our members have been amazing in their responses. We now have multiple new editions in the works: The Arkansas Form Book; Domestic Relations; Handling Appeals in Arkansas; and Debtor Creditor Handbook. Updates to other handbooks are also being discussed. Is there a handbook that you would like to help with? Have an idea for a new handbook? Contact Cathy Underwood at cathy57737@ gmail.com. When you see emails asking for help on these projects, please consider answering the call. I am very excited that our Annual Meeting co-chairs Kristin Pawlik and Patrick Wilson are planning our first inperson annual meeting since June 2019. Kristin unveiled the “Let’s Get Together” theme for the 2022 Annual Meeting at our recent Board of Trustees meeting. “We are ready, let’s get together,” Kristin announced. “We want to get together June 15-17. We are planning a lot of your familiar favorites and adding the ABOTA Masters in Trial Program along with some mini-social networking events throughout the day. That is our goal—to get together again. To see each other’s faces and share the fellowship of practicing law.” Watch for more information on the meeting at www. arkbarcom/annualmeeting. Your Arkansas Bar Association is important. It is it essential. It provides valuable opportunities for you to engage in promoting justice. And it needs you. ■
Vol. 57 No. 1/Winter 2022 The Arkansas Lawyer
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YOUNG LAWYERS SECTION REPORT
Handbooks, Clinics and More
YLS is gearing up for a busy Spring. YLS is leading the effort in updating the Statute of Limitations Handbook since its last update in 2017. The Statute of Limitations Handbook is a great benefit to our members. It contains 14 chapters covering all subject areas and miscellaneous issues. This handbook is a valuable tool for any practitioner, and is available to you free as part of your Fastcase legal research member benefit. We need a few more volunteers for this project; please consider volunteering for a chapter. The Statute of Limitations Handbook can also be found on the Association’s website at www.arkbar.com in the Publications section, which can be accessed by going to the Attorneys drop-down tab and clicking on Publications under the Resources subheading. You will find many other member benefits in the Publications section, including ArkBar Docs, the Domestic Violence Practical Guide, e-Bulletins, Law Reviews, Law Student Spotlight, Member Newsletter, Practice Handbooks, Social Media Guidebook, and The Arkansas Lawyer magazine. Make sure to check these out to get the most of your membership! YLS is preparing for our Annual Wills for Heroes Clinic for late March or the beginning of April that provides Arkansas First Responders free simple wills, powers of attorneys, and living wills. Given the success of last year’s statewide virtual clinic and the current state of COVID-19, this year’s clinic will be virtual. This will enable YLS
Payton C. Bentley is the Chair of the Young Lawyers Section. He is an attorney at the Clark Law Firm, PLLC.
to recruit more volunteer attorneys and to help Arkansans across the state. Please consider volunteering for this incredible clinic. Any lawyer from any practice area even with no prior experience can volunteer. Volunteers will use a completed questionnaire to fill in the blanks on the provided forms before the clinic and then go over the documents with the First Responders in 30-minute appointments via Zoom on the day of the clinic. Make sure to keep an eye on the YLS Facebook page and the YLS page on ACE for future updates! YLS is helping in the effort, along with the Arkansas Bar Association, Center for Arkansas Legal Services, and Legal Aid of Arkansas, to recruit volunteers to provide pro bono legal assistance to the victims of the recent storms in the counties of Craighead, Jackson, Mississippi, Poinsett, and Woodruff in Northeast Arkansas. YLS coordinates disaster legal assistance through the Disaster Legal Assistance program, and in conjunction with Legal Aid of Arkansas YLS created the Arkansas Disaster Assistance Manual that can be found in the Publications section referenced above. Those hit by the severe storms and tornadoes will call a toll-free number, 1-800-952-9243, and a volunteer attorney will gather and divide requests between those willing to respond by telephone to answer legal questions. The goal is to assist as many individuals affected by these storms as possible. The volunteer attorneys will be asked to help with the following areas:
•
• • •
•
• •
Assistance securing FEMA and other government benefits available to disaster victims; Assistance with life, medical, and property insurance claims; Help with home repair contracts and contractors; Replacement of wills and other important legal documents lost or destroyed in the disaster; Consumer protection to guard against price-gouging and avoiding contractor scams in the rebuilding process; Counseling on mortgage-foreclosure problems; and Counseling on landlord-tenant problems.
Please consider volunteering. Our fellow Arkansans need our help in picking up the pieces and dealing with the aftermath of this disaster. Our first responders need help and our membership in general will greatly benefit from an updated Statute of Limitations handbook. If you would like to volunteer for the disaster relief, please contact Jay Robbins at jrobbins@arkbar. com. If you would like to volunteer for the other projects please contact me at pbentley@clark-firm.com. ■
Vol. 57 No. 1/Winter 2022 The Arkansas Lawyer
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Arkansas Precedent on the Law of Precedents: Where Have We Been and Where Are We Now?
By Tory Hodges Lewis and Brett D. Watson
H
ave you ever thought you had a strong argument, but then you came across an Arkansas Supreme Court or Court of Appeals case that directly contradicted your argument? Most of us have. When we are confronted with unfavorable precedent that is on point, we must decide whether to make the argument anyway—despite the precedent—in hopes the appellate court will overrule its prior decision. The Latin phrase for our dilemma is stare decisis. Stare decisis, the law of precedents, is “not a mechanical formula of adherence”1 but a principle courts emphasize or deemphasize depending on the nature of the case, the policies at play, and the persuasiveness of precedent. The Arkansas Supreme Court has not always been clear on whether stare decisis will dictate the outcome of cases before it. Just 10 years into Arkansas statehood, the Court declined to reconsider cases it had decided a few years earlier and set forth what appears to be its first explanation of stare decisis:
Tory Hodges Lewis works for Taylor & Taylor Law Firm as a remote, part-time appellate attorney, preparing cases for the Arkansas Supreme Court and Court of Appeals. Brett D. Watson is an Arkansas appellate attorney who has handled more than 250 appeals in state and federal courts.
There should be strong reasons for overruling previous adjudications. . . . [W]here a principle has once been declared and acquiesced in, in subsequent cases it should be adhered to, unless great injury and injustice would necessarily result from such adherence. . . . In most questions of practice more depends upon the uniformity of the rule than the rule itself.2 Later that month, however, the Court favored accuracy over consistency: [W]here the decision goes to the merit of the controversy, . . . if the court should from any cause have erred, it is not only proper, but it is an obligatory duty upon them . . . to re-examine the opinion[] so pronounced, and if found to be erroneous to recede from it.3 These opinions illustrate the challenge stare decisis presents for lawyers: How can we know when the appellate court will overrule precedent and chart a new course? Recent cases have drawn renewed attention to stare decisis in Arkansas.4 In this article, we survey authority in areas of constitutional interpretation, statutory interpretation, and property law.5 We consider whether and to what extent the Arkansas Supreme Court’s application of stare decisis has evolved in these areas. And we draw practical tips for assessing whether the Court will (or won’t) apply stare decisis.6
Lewis 10
The Arkansas Lawyer
Watson www.arkbar.com
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Stare decisis, the law of precedents, is ‘not a mechanical formula of adherence’ but a principle that courts emphasize or deemphasize depending on the nature of the case, the policies at play, and the persuasiveness of precedent.
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I. Stare Decisis in Constitutional Interpretation Stare decisis has less force when deciding constitutional issues than other issues.7 That may seem counterintuitive, but the Arkansas Supreme Court derives its legitimacy from the Arkansas Constitution.8 Thus, “to maintain a plausible claim to obedience, the Court must ensure that its rulings comport with the document that confers its power to decide cases.”9 When the Court applies stare decisis, it favors consistency and stability over proper interpretation.10 The resulting tension is evident in Arkansas’ jurisprudence. A. Then In an 1850 case, Ex parte Hunt,11 the Court issued a writ of habeas corpus based on its original jurisdiction established in prior opinions. Justice Scott dissented as to the Court’s power to issue the writ. He acknowledged precedent and recognized that “uniformity of authoritative decisions is, for obvious reasons, of great importance in the administration of justice.”12 But he found no constitutional foundation for the Court’s exercise of original jurisdiction.13 He contended that stare decisis is not an “inexorable” rule but is instead “of mild and beneficial sway, and, when justice is to be advanced and the means are clearly pointed out, and they contemplate no private or public wrong, it interposes no barrier at all.”14 In Brickhouse v. Hill,15 the majority echoed Justice Scott when it overruled
precedent interpreting Amendment 7. The Court reasoned that “the decision . . . is wrong, and that more good than harm would result from changing it at this time.”16 The Court identified other authorities that overruled precedent for “cogent reasons” where there was “a clear manifestation[] of error” and where “more mischief w[ould have] be[en] produced by adhering to [the] error [than] by retracting it.”17 The Court thus departed from its prior opinions to avoid perpetuating “an erroneous and dangerous construction of our Constitution.”18 While Justice Scott’s dissent in Ex parte Hunt and the opinion in Brickhouse suggest that egregious mistakes in constitutional interpretation justified a departure from precedent, the Court more often than not deferred to its prior construction of constitutional provisions. In a 1938 case, O’Daniel v. Brunswick Balke Collender Co.,19 the Court explained: A cardinal rule in dealing with constitutional provisions is that they should receive a consistent and uniform interpretation so that they shall not be taken to mean one thing at one time, and a different thing at another time. Certainly, when a constitutional provision . . . has been construed, and that construction followed for many years, such construction should not be changed.20
Ironically, to give the relevant constitutional provisions and statutes a more “consistent and uniform interpretation,” O’Daniel overturned precedent that would have limited the Court’s jurisdiction.21 The next year, the Court applied stare decisis when construing Art. 19, sec. 22 of the Arkansas Constitution.22 While the Court cited only one case of precedential value, the Court noted that the precedent thoroughly discussed the relevant constitutional issue; thus, it would be “a work of supererogation to review a question so thoroughly considered in that opinion by the late Chief Justice McCulloch.”23 The Court thus tended to adhere to precedent on issues of constitutional interpretation unless an interpretive error was so egregious that the precedent simply could not stand. B. Now The Court still generally defers to precedent interpreting the state constitution when the precedent is clear, consistent, and well-established.24 The role of stare decisis is less apparent when precedent is inconsistent.25 For instance, in Board of Trustees of University of Arkansas v. Andrews, the Supreme Court relied on “six decades of . . . precedent” when it found that Art. 5, sec. 20 of the Arkansas Constitution barred suit against the state under the Arkansas Minimum Wage Act.26 However, in doing so, the Court overruled recent cases that had
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served as precedent for 20 years.27 Also, while the Court generally defers to precedent, it will not defer to an egregious error—although the Court may not expressly overrule the erroneous precedent. In Edwards v. Thomas, the Court held that a statute did not violate the separationof-powers doctrine in the Arkansas Constitution although the statute contained certain procedural components. Justice Womack, concurring in part and dissenting in part, argued that this ruling did not square with Johnson v. Rockwell Automation, Inc.,28 which created a bright-line rule that a statute is unconstitutional if it contains any procedural components.29 He urged the Court to overrule Johnson because “[a]ny respect due Johnson and its progeny under the doctrine of stare decisis does not warrant perpetuating the error within th[at] decision.”30 The majority neither applied the Johnson rule nor expressly overruled it. So what is the present state of the stare decisis principle as to constitutional interpretation? While the Court may cite stare decisis as a basis for its opinions, it is not inclined to let interpretive errors dictate the outcome of any case—particularly where errors are egregious and significant. II. Stare Decisis in Statutory Interpretation It is said that courts are less likely to overrule precedent interpreting a statute than precedent interpreting a constitution. The rationale is that if courts interpret a statute incorrectly, the legislature can amend the law to correct the error. Not so with the constitution. Thus, “[s]tare decisis applies with special force to questions of statutory construction.”31 Is that true in Arkansas? The record is mixed. Although the Arkansas Supreme Court has said that its statutory interpretations should rarely be overruled, the Court is inclined to do just that when it believes prior interpretations are erroneous. A. Then The Court first considered whether to overrule a statutory-interpretation opinion in 1850 in Byrd v. Chase.32 The Court agreed that its three-year-old opinion was “not altogether free from doubt,” but the Court, without elaborating, declined to 12
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overrule the case because it did “not feel at liberty to” do so.33 But in 1852, the Court overruled a twoyear-old case regarding whether a statute required a bond for costs from probate court.34 The next year, the Court overruled a case it had decided a year before regarding the statute of non-claims.35 And in 1897, the Arkansas Supreme Court overruled a 20-year-old case that had “overlooked or failed to consider the changes made by the [C]ode [of Criminal Conduct].”36 So, in the early years, while acknowledging stare decisis, the Arkansas Supreme Court was willing to correct prior errors in statutory interpretation. B. Now The Court continues to speak the language of stare decisis, sometimes following it, sometimes not. In the 1991 case of Scarbrough v. Cherokee Enterprises, the Court declined to reinterpret a workers’-compensation statute: “[W]e feel the constraint of stare decisis, especially when dealing with legislative intent in the interpretation of a statute.”37 And in Morris v. McLemore, the Court declined to overrule a statutory interpretation that had stood for a century: A cardinal rule in dealing with a statutory provision is to give it a consistent and uniform interpretation so that it is not taken to mean one thing at one time and something else at another time. . . . As time passes, the interpretation given a statute becomes a part of the statute itself.38 Although Morris and Scarbrough are informative, it is unclear in either case whether the Court thought its prior decisions were incorrect or whether the Court relied on stare decisis simply to support its opinion. When the Court concedes that its prior interpretation is incorrect, the tendency is to overrule.39 In Moore v. Moore, the Arkansas Supreme Court overruled 30 years of precedent.40 Discussing the statutory definition of “marital property,” the Court corrected prior cases in which
it had misread the definition.41 The Court acknowledged that “[t]he policy behind stare decisis is to lend predictability and stability[,]” but it explained that precedent should be overruled “when there has been a palpable error in legal analysis” or where decisions “clearly conflict with the statutory scheme.”42 Likewise, in Lineham v. Hyde, the Court overruled cases in which “judicially created tests . . . ha[d] moved termination-ofguardianship cases too far from the statute,” thereby delaying the return of children to fit parents.43 The tests, the Court said, were “divorced from the statutory text, [and] [t]he best path [wa]s to abandon the tests and bring termination-of-guardianship cases in line with the statute.”44 In State v. Griffin, however, because lower courts had relied on the precedent for two decades, the Court declined to overrule precedent that was admittedly erroneous.45 The Court had held “that the statutory requirement of parental consent to a juvenile’s waiver of the right to counsel applie[d] only to proceedings in juvenile court.”46 In Griffin, however, the Court said the statute did not limit the consent requirement to juvenile proceedings, but stated that it was “bound by the principles of stare decisis” even though “the result may seem egregious.”47 The Court pointed out that “[t]he legislature is . . . familiar with this [C]ourt’s interpretation . . . , and if it disagrees with that interpretation, it can amend the statute.”48 So, what to make of stare decisis when it comes to statutory interpretation? If you ask the Court to overrule a case, first convince the Court that the prior interpretation was incorrect. Then show that the conflict between the statute’s text and the prior interpretation is clear. Better yet, persuade the Court, if you can, that the error is recent, that no reliance interests have sprung up around the error, and that the correct reading is more just. If you can do those things, then you might avoid the application of stare decisis to your statutoryinterpretation argument. III. Stare Decisis in Rules of Property Rules of property are “rules governing the descent, transfer or sale of property, and the rules which affect the title and possession
thereto.”49 Stare decisis is strongest with such rules because property rights “become vested in reliance on the precedents.”50 Thus, “[a] precedent that creates a rule of property . . . is generally treated as inviolable.”51 A. Then The Arkansas Supreme Court has long held to this rule. In Mack v. Johnson, an 1894 decision, the Court considered whether a prior case misinterpreted an Arkansas statute.52 It determined that even if the decision in [the prior case] was erroneous, we should feel constrained to uphold it. This court, by an undeviating line of decisions, has recognized its binding authority ever since its rendition, and it would be nothing less than calamitous to repudiate it now. Property rights have grown up under it, and to overrule it might throw the law into a state of inextricable confusion.53 In Maulding v. Scott, the Court noted that “[a] series of adjudications have established a definite meaning to these words until they have become a rule of property, which we should be careful not to invade.”54 And in Ford v. Burks, the Court said “a rule of property . . . cannot be safely disturbed, save by the prospective operation of a statute.”55 The 1886 case of Taliaferro v. Barnett sums up the Court’s approach to stare decisis and rules of property in the 1800s: “When erroneous precedents have become a rule of property, the tender regard the courts entertain for interests that have grown up under and are dependent upon them, causes them to stand by the established error. The doctrine of stare decisis is then the prevailing rule.”56 B. Now The Court continues its strong adherence to stare decisis involving rules of property: “[A] rule of property is rarely, if ever, overturned, so that the bar can rely on the rule in drafting long term instruments and advising clients.”57 In Otter Creek Development Company v. Friesenhahn, the Court declined to overrule a case involving
the rule against perpetuities, noting that the Court “should rarely overrule an earlier decision when the decision has become a rule of property.”58 The Court also noted that, even if it did overrule a rule of property, it could do so prospectively only.59 For issues that do not clearly qualify as a rule of property, stare decisis holds less sway. For instance, in Low v. Insurance Company of North America, the Court overruled a 2002 case that had broken with its “well-settled interpretation of the charitable-immunity doctrine and directaction statute.”60 In Arkansas, charitable immunity historically has operated as a rule of property.61 However, Low considered the issue one of statutory interpretation, overruling its more recent opinion in favor of older precedent.62 Thus, the Court adheres strongly to precedent involving rules of property, but a litigant might persuade the Court to overrule precedent by arguing that the issue is one of contract, tort, or anything other than property. IV. Conclusion In reviewing Arkansas jurisprudence, the Arkansas Supreme Court’s deference to precedent is mixed. Sometimes the Court affirms erroneous precedent for the sake of consistency; sometimes it overrules precedent to achieve accuracy. But this is not surprising, for as we note at the outset of this article, stare decisis is “not a mechanical formula of adherence to the latest decision.”63 Yet a pattern emerges: Stare decisis is a must with rules of property. With statutory interpretation, deference to precedent is strongly favored but not absolute. And with constitutional interpretation, the Court may give stare decisis consideration, but accuracy is generally paramount. Recognizing this pattern and the nuances therein may help lawyers craft arguments for following or overruling precedent in a manner more likely to achieve favorable results. Endnotes: 1. Zinger v. Terrell, 336 Ark. 423, 430–31, 985 S.W.2d 737, 741 (1999) (quoting Payne v. Tennessee, 501 U.S. 808, 828–29, 111 S. Ct. 2597, 115 L. Ed. 2d 720 (1991)).
2. Roane v. Hinton, 6 Ark. 525, 527 (1846). 3. Smith v. Henry, 7 Ark. 207, 213 (1846) (reversing Byers & Minniken v. Aiken, 5 Ark. 419, as “unsupported” and “opposed to the whole weight of authority both English and American”). 4. See, e.g., Edwards v. Thomas, 2021 Ark. 140, 625 S.W.3d 226; City of Fort Smith v. Merriott, 2020 Ark. 94, at 5–6, 593 S.W.3d 481, 484 (describing stare decisis as a “slender reed”) (quoting Schwarzschild v. Tse, 69 F.3d 293, 297 (9th Cir. 1995)). 5. We do not address in this article stare decisis in the interpretation of court rules, but see the following trilogy of recent cases on that issue when it comes to Arkansas Rule of Criminal Procedure 36: Collins v. State, 2021 Ark. 80; Treat v. State, 2019 Ark. 326, 588 S.W.3d 10; Pettry v. State, 2020 Ark. App. 162, 595 S.W.3d 442. 6. We take no position on whether the Arkansas Supreme Court’s application or non-application of stare decisis in any particular case was or was not the correct decision. 7. Jonathan F. Mitchell, “Stare Decisis and Constitutional Text,” 110 Mich. L. Rev. 1, 2–3 (2011) (indicating that the rationales for stare decisis rest on a “controversial” premise: “that good consequences suffice to justify a judicial practice or doctrine”). 8. Ward Sch. Bus Mfg., Inc. v. Fowler, 261 Ark. 100, 114, 547 S.W.2d 394, 402 (1977); Ark. Const. Amend. 80. 9. Mitchell, supra note 7. The Supreme Court is tasked with serving as the “final arbiter of issues involving the Arkansas Constitution.” Unborn Child Amend. Comm. v. Ward, 318 Ark. 165, 168, 883 S.W.2d 817, 819 (1994). 10. Michael Stokes Paulsen, The Intrinsically Corrupting Influence of Precedent, 22 Const. Comment 289, 290–91 (2005). 11. 10 Ark. 284 (1850). 12. Id. at 289. 13. Id. 14. Id. 15. 167 Ark. 513, 268 S.W. 865 (1925) (overruling Hildreth v. Taylor, 117 Ark. 474, 175 S.W. 40 (1915)). 16. Id. at 519, 268 S.W. at 867. 17. Id. (citing Whittington v. Flint, 43 Ark. 504 (1884); Collier v. Davis, 47 Ark. 367, 1 S.W. 684 (1886)). 18. Brickhouse,167 Ark. at 521, 268 S.W.
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at 867. 19. 195 Ark. 669, 674, 113 S.W.2d 717, 719 (1938) (recognizing that the rule at issue had been in place, and the relevant constitutional provisions construed, for 52 years). 20. Id. 21. Id. 22. Coulter v. Dodge, 197 Ark. 812, 125 S.W.2d 115 (1939). 23. Id. at 819, 125 S.W. at 118. But see id. at 829, 125 S.W.2d at 122 (Mehaffy, J., concurring) (cautioning against “generally rely[ing] on case law, regardless of existing reasons that may appeal from righteous judgment”) (citation and internal quotations marks omitted). 24. See Sw. Ark. Commc’ns., Inc. v. Arrington, 296 Ark. 141, 145, 753 S.W.2d 267, 269 (1988) (citing O’Daniel, 195 Ark. at 674, 113 S.W.2d at 719) (“Our interpretation of Amendment 60 has been a part of the law of this State for almost five years, and we will not change it without sufficient reason.”); Box v. State, 348 Ark. 116, 123–24, 71 S.W.3d 552, 556–57 (2002) (applying a 30-year-old precedent and finding that the right to fair trial included the right to be tried in something other than prison garb). 25. Certainly, “any inconsistency between precedents set by the supreme court and the court of appeals must be resolved in favor of the precedent announced by the supreme court . . . .” Box, 348 Ark. at 124, 71 S.W.3d at 557 (internal quotations omitted). 26. 2018 Ark. 12, at 11, 535 S.W.3d 616, 622. 27. Id. at 11–12, 535 S.W.3d at 623. 28. 2009 Ark. 241, at 7, 308 S.W.3d 135, 141. 29. Edwards, 2021 Ark. 140, at 13, 625 S.W.3d at 233 (Womack, J., concurring in part and dissenting in part). 30. Id. at 24, 625 S.W.3d at 238. Justice Webb went even further, arguing that “[t]he highest value of stare decisis— respecting past decisions that are wrong to keep the law settled—is not the priority when the Constitution is the thing that has been wrongly decided.” Id. at 29, 625 S.W.3d at 240–41 (Webb, J., concurring in part and dissenting in part). She considered four factors relevant to stare decisis: (1) 14
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whether the precedent was erroneously and egregiously decided; (2) whether the precedent has resulted in significant negative consequences; (3) whether overruling the precedent would upset reliance interests; and (4) the age of the precedent. Id. at 30–32, 625 S.W.3d at 241–42. Given those considerations, Justice Webb urged the Court to overrule Johnson. Id. at 33, 625 S.W.3d at 243. 31. Bryan A. Garner et al., The Law of Judicial Precident 333 (2016). 32. 10 Ark. 602 (1850). 33. Id. at 604 (declining to overrule Fitzgerald v. Beebe, 7 Ark. 305 (1847)). 34. Biscoe v. Maddin, 12 Ark. 765, 766 (1852) (overruling Morrow v. Walker, 10 Ark. 569 (1850)). 35. Walker v. Byers, 14 Ark. 246, 260 (1853) (overruling Allen v. Byers, 12 Ark. 593 (1852), and Burton v. Lockhert, 9 Ark. 411 (1848)). 36. Read v. State, 63 Ark. 618, 621, 623, 40 S.W. 85, 87 (1897) (overruling McClellan v. State, 32 Ark. 609 (1877)); see also Hempstead Cty. v. McCollum, 58 Ark. 159, 162, 24 S.W. 9, 10 (1893) (overruling Fanning v. State, 47 Ark. 442, 2 S.W. 70 (1886)). 37. 306 Ark. 641, 644, 816 S.W.2d 876, 878 (1991). 38. 313 Ark. 53, 55, 852 S.W.2d 135, 136 (1993). 39. We do not eliminate the possibility that the Court, when it relies on stare decisis, is tacitly admitting that its prior decisions on the subject at hand are incorrect. 40. 2016 Ark. 105, at 8, 486 S.W.3d 766, 772 (overruling Layman v. Layman, 292 Ark. 539, 731 S.W.2d 771 (1987); Farrell v. Farrell, 365 Ark. 465, 231 S.W.3d 619 (2006); and Brown v. Brown, 373 Ark. 333, 284 S.W.3d 17 (2008)). 41. Moore, 2016 Ark. 105 at 8, 486 S.W.3d at 772. 42. Id. at 8–9, 486 S.W.3d at 772 (citation and internal quotation marks omitted). 43. 2015 Ark. 289, at 8–9, 467 S.W.3d 129, 134 (overruling Graham v. Matheny, 2009 Ark. 481, 346 S.W.3d 273; In re S.H., 2012 Ark. 245, 409 S.W.3d 307; and In re S.H., 2015 Ark. 75, 455 S.W.3d 313). 44. Id. at 9, 467 S.W.3d at 134. 45. 2017 Ark. 67, at 5, 513 S.W.3d 828, 831.
46. Id. at 3, 513 S.W.3d at 830. 47. Id. at 5, 513 S.W.3d at 831. 48. Id. 49. Gibson v. Talley, 206 Ark. 1, 7, 174 S.W.2d 551, 554 (1943) (quoting 54 C.J. 1110). 50. 20 Am. Jur. 2d Courts § 135 (“Property Rights”). 51. Garner, supra note 31, at 421. 52. 59 Ark. 333, 338, 27 S.W. 231, 232 (1894). 53. Id. 54. 13 Ark. 88, 93–94 (1852). 55. 37 Ark. 91, 94–95 (1881). 56. 47 Ark. 359, 363, 1 S.W. 702, 703 (1886). 57. Edmundson v. Estate of Fountain, 358 Ark. 302, 312, 189 S.W.3d 427, 434 (2004); see also Abrego v. United People Fed. Sav. & Loan Ass’n, 281 Ark. 308, 318, 664 S.W.2d 858, 862 (1984) (finding that an Arkansas rule of property “may be eliminated by a complete federal preemption of [a prior Arkansas case]”). 58. 295 Ark. 318, 321, 748 S.W.2d 344, 346 (1988). 59. Id. 60. 364 Ark. 427, 440, 220 S.W.3d 670, 680 (2005). 61. Courtney Jane Baltz, When Justice Should Precede Generosity: The Case Against Charitable Immunity in Arkansas, 2021 Ark. L. Notes 1, 12–13 (2021). 62. Low, 364 Ark. at 439–40, 220 S.W.3d at 679 (“When a statute has been construed, and that construction has been consistently followed for many years, such construction ought not be changed.”). 63. Zinger, 336 Ark. at 431, 985 S.W.2d at 741 (quoting Payne, 501 U.S. at 828–29). ■
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A Report From the 2021 National Conference of Commissioners on Uniform State Laws
By J. Cliff McKinney II The Uniform Law Commission (ULC) held its 130th annual National Conference via a hybrid method of inperson meetings in Madison, Wisconsin, and virtual meetings through Zoom in July 2021. Arkansas was represented by its commissioners, David Nixon, John Thomas Shepherd, Cliff McKinney, and Marty Garrity, who serves as an associate commissioner. Arkansas’ New Uniform Acts In 2021, the Arkansas General Assembly adopted three new uniform acts: Revised Uniform Limited Liability Company Act, Uniform Fiduciary Income and Principal Act, and Uniform Civil Remedies for Unauthorized Disclosure of Intimate Images. All three passed the House and the Senate without a single no vote. Below is a brief summary of all three newly-adopted acts: Uniform Limited Liability Company Act (Revised) Act 1041 (SB 601); Ark. Code Ann. §§ 4-38-101 et seq. The Uniform Limited Liability Company Act (Revised) is a modernized replacement for Arkansas’ current limited liability company act, which is known as “The Small Business Entity Tax Pass Through Act,” which was adopted in Arkansas on April 1, 1993. This uniform act provides refinements and modern legal updates. Twenty states plus the District of Columbia have adopted this uniform act, most recently Alabama in 2019. Two other states (South Carolina and Wisconsin) introduced the uniform act in their legislatures in 2021. The uniform act was endorsed by the Real Property, Probate, and Real Estate Sections of the American Bar Association.
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Uniform Fiduciary Income and Principal Act Act 1088 (HB 1693); Ark Code Ann. §§ 28-77-101 et seq. The Uniform Fiduciary Income and Principal Act is an updated version of the Uniform Principal and Income Act, which has been adopted in 47 jurisdictions. The Act provides rules for allocating receipts and disbursements between income and principal accounts of a trust in accordance with the fiduciary duty to treat all beneficiaries loyally and impartially unless the terms of the trust specify otherwise. This revision includes provisions allowing conversion of a traditional trust with income and principal beneficiaries into a total-return unitrust when all beneficiaries consent. Uniform Civil Remedies for Unauthorized Disclosure of Intimate Images Act Act 420 (HB 1645); Ark. Code Ann §§ 16-129-101 et seq. The Uniform Civil Remedies for Unauthorized Disclosure of Intimate Images Act addresses an increasingly common form of abuse that causes immediate, and in many cases, irreversible harm. The act creates a cause of action for unauthorized disclosure of private, intimate images. The act also outlines procedures enabling victims to protect their identity in court proceedings. In addition, the act provides various remedies for victims, including actual damages, statutory damages, punitive damages, and attorney’s fees. The ULC's 2021 Proposed Acts 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 Cohabitants’ Economic Remedies Act The Uniform Cohabitants’ Economic Remedies Act is intended to enable cohabitants to exercise the usual rights of individual citizens of a state to contract and to successfully maintain contract and equitable claims against others in appropriate circumstances. The Act is intended to affirm the capacity of each cohabitant to contract with the other and to maintain claims with respect to “contributions to the relationship” without regard to any intimate relationship that exists between them and without subjecting them to hurdles that would not be imposed on litigants of similar claims. Uniform College Athlete Name, Image, or Likeness Act Until recently, college athletes have not been allowed to receive compensation for the use of their name, image, or likeness (NIL) while still maintaining athletic eligibility. The Uniform College Athlete Name, Image, or Likeness Act allows college athletes to earn compensation for the use of their NIL while also providing reasonable protections to educational institutions, athletic associations, and conferences.
J. Cliff McKinney II is a Managing Member of Quattlebaum, Grooms & Tull PLLC.
Uniform Community Property Disposition at Death Act Community property acquired by a married couple retains its character as community property even when the couple relocates to reside in a non-communityproperty state. This Act provides a structure for non-community-property states, like Arkansas, to handle these situations. Arkansas currently has the 1971 version of this Act, which this Act is intended to replace. Uniform Personal Data Protection Act The Uniform Personal Data Protection Act is intended to apply fair information practices to the collection and use of personal data from consumers by business enterprises. The Act is intended to provide a reasonable level of consumer protection without incurring the compliance and regulatory costs associated with some existing state regimes. Uniform Restrictive Employment Agreement Act This Act regulates restrictive employment agreements, which are agreements that
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prohibit or limit an employee or other worker from working for other employers after the work relationship ends. The Uniform Restrictive Employment Agreement Act addresses the enforceability of these agreements, notice and other procedural requirements, choice of law issues, and remedies. Uniform Unregulated Child Custody Transfer Act In some cases, parents find that, after the birth or adoption of their child, they experience considerable difficulty or even inability in caring for or effectively managing the child's behavior, which sometimes leads to families transferring a child to another person outside of the courts and the child welfare system. Without specific regulations directed at these types of unregulated transfers, a transfer of custody might go unnoticed within the child welfare system. The Act addresses the transfer of children in these types of cases.
Amendments to the Uniform Common Interest Ownership Act The Uniform Common Interest Ownership Act governs the formation, management, and termination of common interest communities, including condominiums, homeowner associations, and real estate cooperatives. The 2021 amendments to the Act update it to address recent legal and technological developments. 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. ■ Editor’s Note: See the Fall 2021 issue of The Arkansas Lawyer for articles on the Uniform Limited Liability Company Act and the Uniform College Athlete Name, Image or Likeness Act.
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2021-2022 Public Service Academy 2021-2022 class of the Public Service Academy
law Students
Caitlin Alana Campbell
Nathan David Coulter
Sarah E. Cowan
Bob Edwards
Daniel D. Ford
Benton James Gann
Jordan B. Hallenbeck
Deborah L. Hardin
Martin Arroyo
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Chris Danforth
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The Arkansas Bar Association and the University of Arkansas Clinton School of Public Service, in association with UA Little Rock Bowen School of Law and the University of Arkansas School of Law, are proud to announce the second class of the Public Service Academy. The individuals pictured above participated in the first session in Little Rock on November 12-13, 2021. See more information at www.arkbar.com/cle--events/public-service-academy.
Thank you to our sponsors ArkBar Civil Litigation Section ArkBar Government Practice Section University of Arkansas School of Law University of Arkansas at Little Rock William H. Bowen School of Law Rose Law Firm Brian Rosenthal
Steering Committee: Maggie Benson Former Chief Justice Howard Brill Judge Earnest Brown Michael Goswami Nate Looney Speaker Matthew Shepherd Chaired by: Michael Goswami Nate Looney Skye Martin, Vice Chair Madhav Shroff, Vice Chair With assistance by: Nikolai DiPippa Jay Robbins
Vol. 57 No. 1/Winter 2022 The Arkansas Lawyer
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Understanding the 2017 Revisions to the Arkansas Pro Hac Vice Rule
By Andrew King and Harper L. Kiefer
This article examines the 2017 revisions to Rule XIV of the Arkansas Rules Governing Admission to the Bar, identifies important changes to Arkansas pro hac vice practice, and outlines the process for admission of nonresident attorneys to participate in a case in an Arkansas court.
Andrew King is a litigation partner at Kutak Rock LLP in Little Rock. His practice includes class action defense and representation of financial institutions. Harper L. Kiefer is a litigation associate at Kutak Rock LLP in Little Rock. Her practice includes representation of businesses and financial institutions in civil litigation.
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n 2017, Arkansas became one of eleven U.S. states to specifically limit the number of times that an out-of-state attorney can be admitted pro hac vice1 to appear in a court of the state, to three cases per 12-month period.2 In addition to limiting the number of appearances, the amendment to Rule XIV of the Rules Governing Admission to the Bar imposes a new fee of $200 per pro hac vice applicant per case, unequivocally requires Arkansas local counsel, and mandates several new disclosures for a pro hac vice motion.3 In the five years since the revised Rule XIV took effect, more than 1400 nonresident attorneys have submitted the fee and initial paperwork4 to appear in roughly 900 Arkansas cases.5 While there is no reported case law regarding the new Rule XIV, the authors have noted instances of spotty compliance. This article is meant to shed light on the new rule and identify points that could cause trouble for unwary pro hac vice applicants and their local counsel. A brief history of practice by comity in Arkansas Until 1975, pro hac vice practice in Arkansas courts was a matter of the trial court’s discretion, framed by a loose statutory guideline.6 By adopting Rule XIV of the Rules Governing Admission to the Bar, the Arkansas Supreme Court superseded the statute and imposed a handful of requirements for admission “by comity and courtesy.”7 Under the 1975 version of Rule XIV,
the lawyer seeking pro hac vice admission must: (a) be admitted in the United States Supreme Court, the United States Court of Appeals for the circuit where the lawyer resides, or the highest appellate court of the lawyer’s state of residence; (b) be in good standing in the court in which the lawyer is admitted;8 and (c) reside outside the state of Arkansas in a state that “likewise accords similar comity and courtesy to Arkansas lawyers.”9 The rule further stated that the nonresident lawyer must sign and file a written statement submitting “to all disciplinary procedures applicable to Arkansas lawyers.”10 The 1975 rule did not mandate the association of Arkansas-licensed local counsel, but permitted the trial court to impose such a requirement. Over the next 40 years, Rule XIV remained largely unchanged.11 Case law established that the rule required separate admission to appear in an appeal,12 held that oral motions are insufficient,13 and confirmed that association of local counsel was not mandatory.14 The most memorable decisions are those in which a pleading was struck due to an out-of-state attorney’s failure to timely seek admission pro hac vice.15 Policy reasons for 2017 amendment to Rule XIV The Arkansas Supreme Court has the constitutional responsibility to regulate the practice of law in Arkansas.16 Regulation of lawyers serves the public interest of ensuring professional competence and adherence to ethical standards by persons answerable to the state’s courts.17 While there is no official public commentary regarding the origins of the 2017 amendment to Rule XIV, the driving factors appear to have been enhancement of compliance with ethics and court rules and to generate revenue. In 2016, members of the Arkansas Access to Justice Commission and the Office of Professional Programs discussed the possibility of revising Rule XIV to collect fees to fund the Commission and other court programs.18 Arkansas courts were seeking to increase efficiency and access to justice in light of a growing number of self-represented litigants and a high demand for legal aid services in the state.19 The Commission and the Court took several actions between 2006 and 2018 to address these issues, including the revisions to Rule XIV.20 The Clerk of the Arkansas Supreme Court collects the new $200 fee in the same manner as annual fees collected from attorneys licensed to practice law in Arkansas.21 The fees are allocated to the Bar of Arkansas and used to fund offices and programs such as the Office of Professional Conduct, Office of Professional Programs, Arkansas Access to Justice Commission, and the Arkansas Lawyer Assistance Program. The Clerk has collected approximately $350,000 in pro hac vice fees since Rule XIV took effect.22 Major changes made in the 2017 amendment The 2017 amendment to Rule XIV is a major departure from historical Arkansas practice. First, it appoints the Clerk of the Arkansas Supreme Court to an administrative role of collecting fees and issuing payment certificates to pro hac vice applicants.23 As a result, the public now has better information regarding the role of out-of-state attorneys in Arkansas courts. Data from the first five years of Rule XIV answers questions that were previously difficult to ascertain:24
From which States do the most pro hac vice attorneys appear in Arkansas cases? 25
Which Arkansas courts see the most pro hac vice attorneys?26
(1) Texas (19.6%)
(1) Pulaski County (18.8%)
(2) Missouri (10.8%)
(2) Washington County (9.3%)
(3) Tennessee (8.5%)
(3) Crittenden County27 (8.5%)
(4) District of Columbia (6.9%)
(4) Benton County (7.0%)
(5) Illinois (6.6%)
(5) Jefferson County (4.1%)
(6) Oklahoma (4.5%)
(6) Sebastian County (3.3%)
(7) Alabama (4.2%)
(7) Union County (2.6%)
(8) Florida (3.7%)
(8) Lonoke County (2.5%)
(9) New York (3.6%)
(9) Arkansas Court of Appeals (2.4%)
(10) California (3.6%)
(10) Arkansas Supreme Court (2.3%)
all others (27.9%)
all others (39.2%)
Second, the new rule creates disclosure obligations that did not previously exist, including identification of other Arkansas cases in which the nonresident attorney has participated or sought admission, a list of jurisdictions in which the attorney is admitted, a summary of the attorney’s disciplinary history, and a supporting affidavit from local counsel.28 Third, in all cases Rule XIV now requires the association of local counsel,29 who must hold an Arkansas license30 and be a “resident practicing Arkansas attorney.”31 The word “resident” means that the local counsel must reside in Arkansas—if the lawyer has an Arkansas license but resides outside the state, the lawyer cannot serve as local counsel.32 “Practicing” means that the local counsel must be actively engaged in the practice of law for the duration of the proceeding— merely having an Arkansas license is not enough.33 Fourth, the new rule limits the number of appearances by nonresident attorneys to three cases per 12-month period,34 where previously there was no limit.35 The text makes it clear that pro hac vice admission is further limited by the number of cases in which the attorney has “participated” or “served as counsel” within 12 months before filing the motion, regardless of whether pro hac vice admission was sought or granted: The court shall deny the pro hac vice motion of a nonresident attorney when the non-resident attorney has participated, served as counsel, or entered an appearance pro hac vice in three cases in the State of Arkansas during the twelve months prior to the filing of the motion.36 Vol. 57 No. 1/Winter 2022 The Arkansas Lawyer
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In a case applying a similar limitation on pro hac vice appearances, the Mississippi Supreme Court defined the word “appearance” under the Mississippi rule limiting out-of-state lawyers to five “appearances” within a 12-month period:37 [A] foreign attorney will be deemed to have made an appearance in a Mississippi lawsuit if the foreign attorney signs the pleadings or allows his or her name to be listed on the pleadings. A foreign attorney may further make an appearance in a Mississippi court by physically appearing at a docket call, a trial, a hearing, any proceeding in open court, at a deposition, at an arbitration or mediation proceeding, or any other proceeding in which the attorney announces that he or she represents a party to the lawsuit or is introduced to the court as a representative of the party to the lawsuit. These actions require that the foreign attorney be admitted pro hac vice and activate the prohibition of [Mississippi’s pro hac vice rule].38 The Mississippi definition of “appearance” is analogous to the Arkansas phrase “participate in proceedings in a court” for which admission pro hac vice must be obtained.39 Rule XIV(f ), however, uses the broader terms “participat[ing]” and “serv[ing] as counsel” for non-appearance conduct that also counts against the threecase limitation in addition to “enter[ing] an appearance pro hac vice.” In other words, admission of pro hac vice attorneys is limited by the number of the lawyer’s participations in an Arkansas case, not the number of pro hac vice applications or appearances. In complex litigation, it is common for multiple lawyers, including those licensed in other states, to assist with tasks such as document production, legal research, and briefing while a smaller number of attorneys actually file appearances in the case. Rule 5.5(d) of the Rules of Professional Conduct permits this practice.40 Even though such services are often performed by out-of-state lawyers who do not obtain pro hac vice admission,41 the work could amount to “participation” and count against the three22
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case limit if the attorney wishes to appear in court proceedings.42 Therefore attorneys seeking admission under Rule XIV should make candid disclosures43 regarding their activity in Arkansas cases during the previous two years,44 understanding that the terms “participate” and “serve as counsel” are not specifically defined by the rule or Arkansas case law.45 Possible consequences for noncompliance with Rule XIV Since 2017, the authors have noted instances in which pro hac vice applications were submitted without careful attention to what Rule XIV requires. The lapses usually fall into one of three categories: (1) counsel appeared to be unaware of the amendment, and submitted forms under the old rule; (2) failure to disclose all cases in which the out-of-state lawyer “participated, served as counsel, or entered an appearance;”46 and (3) omissions of other information specifically required under Rule XIV(b)(1)(7). In our experience, the lapses have been quickly corrected without incident. But if a failure to comply with Rule XIV is not resolved proactively, there are several means to address a deficient application. Under Rule XIV(g), the court may revoke the nonresident attorney’s permission to participate47 and issue a citation for contempt. The court may refer the matter to the Arkansas Supreme Court Office of Professional Conduct48 or Arkansas Supreme Court Committee on the Unauthorized Practice of Law. A grossly deficient pro hac vice application could result in the striking of pleadings filed by the nonresident attorney49 or affect the attorney’s right to legal fees.50 Under some circumstances, it could be possible to seek an injunction.51 Some of these outcomes could be appealable on an interlocutory basis.52 Conclusion Every year, hundreds of out-of-state lawyers seek permission to practice and appear in Arkansas courts. For those of us who serve as local counsel, our responsibilities begin by paying close attention to Rule XIV of the Rules Governing Admission to the Bar.
APPENDIX: Steps for pro hac vice admission in an Arkansas court Under the 2017 revisions to Rule XIV, a nonresident attorney (the “movant”)53 must complete the following steps to be admitted pro hac vice in an Arkansas court: (1) confirm that at least one of movant’s states of licensure would permit an Arkansas attorney to be admitted pro hac vice in a case in the state’s courts;54 (2) confirm that the movant has not participated, served as counsel, or appeared pro hac vice in three cases in the state of Arkansas during the 12 months prior to the filing of the motion;55 and (3) complete, sign, and date the Arkansas Supreme Court’s Pro Hac Vice Information and Payment Form56 and submit it to the Arkansas Supreme Court Clerk with a payment of $200.00.57 (4) Upon receipt of the payment certificate from the Arkansas Supreme Court, complete, sign, and notarize the motion for admission pro hac vice and forward the signed motion and certificate to local (sponsoring) counsel. To comply with Rule XIV, the motion must: (a) be accompanied by the Arkansas Supreme Court payment certificate; (b) be written and sworn by the movant; (c) contain the office address, telephone number, fax number, and email address of the movant; (d) identify by name and Arkansas Bar ID number a resident practicing58 Arkansas-licensed attorney with whom the movant will be associated (the “Arkansas local counsel”), and local counsel’s office address, telephone number, fax number, and email address; (e) contain a list of all cases, including case number and caption, in Arkansas courts in which the movant has participated, served as counsel, or sought leave to appear or participate within two years before filing of the motion;
(f ) list the jurisdictions in which the movant is licensed, including federal courts; (g) state whether the movant is or is not an active member in good standing in each of those jurisdictions; (h) state whether the movant has or has not been the subject of disciplinary action by the disciplinary authority of any jurisdiction in which the attorney is licensed and describe any such disciplinary actions; (i) state whether the movant has or has not been denied admission, including admission pro hac vice, to the courts of any state or to any federal court; (j) state that the movant is familiar with the Arkansas Supreme Court Rules of Professional Conduct, and will at all times abide by and comply with the rules while serving as counsel in the action;59 (k) be signed by the Arkansas local counsel; (l) be accompanied by an affidavit of the Arkansas local counsel, stating that local counsel recommends that the movant be granted permission to participate in the particular proceeding.60 (5) After affirming compliance with Rule XIV, Arkansas local counsel should file the motion and submit a proposed order granting pro hac vice admission.61 The movant is admitted once the order is entered. (6) To make electronic filings in an Arkansas court (where available), the pro hac vice attorney must attend online training and pay a $100.00 fee to request an online account.62 If an e-filing login is not obtained, the pro hac vice attorney will not receive electronic notices of case filings. (7) If an e-filing account is obtained, the attorney should file a notice of appearance in the case to receive e-filing notices.63
Endnotes: 1. “Pro hac vice” is a Latin phrase meaning “for this occasion only.” 2. Rule XIV of the Rules Governing Admission to the Bar of Arkansas (hereinafter “Rule XIV”); see American Bar Association, Center for Professional Responsibility, CPR Policy Implementation Committee, Comparison of ABA Model Rule for Pro Hac Vice Admission with State Versions and Amendments Since August 2002 (Jan. 26, 2017), available at https:// www.americanbar.org/content/dam/aba/ administrative/professional_responsibility/ prohac_admin_comp.authcheckdam.pdf (last visited Jan. 4, 2022). According to the information compiled by the American Bar Association, as of January 26, 2017, the following states specifically limit the number of pro hac vice appearances by out-of-state counsel: Alabama, Arkansas, Florida, Michigan, Mississippi, Montana, Nevada, New Mexico, Ohio, Rhode Island, and Virginia. In addition, the District of Columbia, Puerto Rico, and Commonwealth of the Northern Mariana Islands restrict the number of pro hac vice appearances in their courts. Id. 3. In re Rule XIV of the Rules Governing Admission to the Bar, 2016 Ark. 354 (per curiam). 4. Arkansas Supreme Court Office of the Clerk, Supreme Court of the State of Arkansas, Pro Hac Vice Appearance Information and Payment Form (rev. Oct. 3, 2017), available at https://www.arcourts. gov/sites/default/files/formatted-files/ ProHacViceForm_0.pdf (last visited Jan. 6, 2022). 5. The authors obtained data for the period from January 1, 2017, to December 31, 2021, from the Arkansas Supreme Court Clerk, and then conducted further analysis to better understand the data. 6. See Brown v. Wood, 257 Ark. 252, 254-55, 516 S.W.2d 98, 99-100 (1974); McKenzie v. Burris, 255 Ark. 330, 334, 500 S.W.2d 357, 360 (1973). 7. Ex parte Arkansas Bar Ass’n, 258 Ark. 1027, 1027-28, 528 S.W.2d 140, 140-141 (1975). 8. The 1975 rule did not address the possibility that a lawyer is in good standing in one but not all courts of admission. 9. See Willett v. State, 334 Ark. 40, 42, 970
S.W.2d 804, 805 (1998) (denying pro hac vice admission to Arkansas resident licensed in Texas). 10. Ex parte Arkansas Bar Ass’n, 258 Ark. at 1027-28, 528 S.W.2d at 140-141; Fisher v. State, 364 Ark. 216, 220, 217 S.W.3d 117, 121 (2005). 11. The rule was amended in 1992, apparently to replace male-gendered pronouns with gender-neutral language. See Rule XIV, history; McKenzie v. State, 354 Ark. 2, 3-4, 116 S.W.3d 461, 461-62 (2003) (quoting gender-neutral version of Rule XIV). 12. McKenzie, 352 Ark. at 4, 116 S.W.3d at 462; Willett, 334 Ark. at 42-42, 970 S.W.2d at 805-06; Walker v. State, 274 Ark. 124, 124-25, 622 S.W.2d 193, 194 (1981). 13. Fisher, 364 Ark. at 219-20, 217 S.W.3d at 120-21. 14. Id. 15. E.g., Clarendon America Ins. Co. v. Hickok, 370 Ark. 41, 47, 257 S.W.3d 43, 47 (2007) (deeming notice of appeal a nullity); Preston v. Univ. of Ark. for Med. Sciences, 354 Ark. 666, 128 S.W.3d 430, 434 (2003) (striking complaint, resulting in limitations bar). But see Tobacco Superstore, Inc. v. Darrough, 362 Ark. 103, 114, 207 S.W.3d 511, 517 (2005) (distinguishing Preston and reversing trial court’s order denying pro hac vice motion and striking answer). 16. Ark. Const. Amend. 28; DeSoto Gathering Co. LLC v. Hill, 2017 Ark. 326, at 12, 531 S.W.3d 396, 404. 17. DeSoto Gathering Co., 2017 Ark. 326, at 12, 531 S.W.3d at 404; Mays v. Neal, 327 Ark. 302, 311, 938 S.W.3d 830, 835 (1997); McKenzie v. Burris, 255 Ark. 330, 344, 500 S.W.2d 357, 366 (1973). 18. Arkansas Access to Justice Commission Meeting Agenda (April 29, 2016), available at https://arkansasjustice.org/wp-content/ uploads/2017/04/2016-0429_CommissionMeeting-Packet.pdf (last visited Jan. 6, 2022). 19. See Arkansas Access to Justice Commission, Commission Accomplishments, available at https://arkansasjustice.org/ our-work/accomplishments/ (last visited Jan. 6, 2021); Arkansas Access to Justice Commission & University of Arkansas Clinton School of Public Service, Justice Measured: An Assessment of the Economic
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Impact of Civil Legal Aid in Arkansas, available at https://www.arkleg.state.ar.us/ Calendars/Attachment?committee=420 &agenda=I14130&file=Handout+1++Access+to+Justice.pdf (last visited Jan. 6, 2021). 20. See Arkansas Access to Justice Commission, Commission Accomplishments, available at https://arkansasjustice. org/our-work/accomplishments/ (last visited Jan. 6, 2021); Arkansas Access to Justice Commission Meeting Agenda (April 29, 2016), available at https:// arkansasjustice.org/wp-content/ uploads/2017/04/2016-0429_CommissionMeeting-Packet.pdf (last visited Jan. 6, 2022). 21. Rule XIV(b). 22. Data from the Arkansas Supreme Court Clerk on file with the authors. 23. Rule XIV(b). 24. See supra note 5. 25. Data through December 13, 2021. 26. Data through December 31, 2021. Circuit Court admission unless otherwise stated. 27. A total of 90 attorneys have sought pro hac vice admission to Crittenden County Case No. 18CV-18-268, a lawsuit by 90 plaintiffs against 67 defendants alleging liability for involvement in the opioid industry. The authors are local counsel to two defendants in the case. 28. Rule XIV(b)(1)-(7), (c). 29. Previously, local counsel was only required if directed by the trial court. Fisher, 364 Ark. at 219-20, 217 S.W.3d at 120-21. 30. Rule XIV(b)(2). 31. Rule XIV(c). 32. Cf. Willett, 334 Ark. at 42, 970 S.W.2d at 805 (holding that state of residence is a material requirement under Rule XIV). 33. In a similar context, the Arkansas Supreme Court has denied admission by reciprocity where the applicant was not “engaged in the active practice of law” for three years prior to the application. Undem v. State Bd. of Law Examiners, 266 Ark. 683, 692, 587 S.W.2d 563, 568 (1979). 34. Rule XIV(f). 35. McKenzie, 255 Ark. at 344, 500 S.W.2d at 366. 36. Rule XIV(f) (emphasis added). 37. Miss. R. App. 46(b)(6)(ii). 38. In re Williamson, 838 So. 2d 226, 235 (Miss. 2002) (emphasis added). 39. Rule XIV(b). 24
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40. See Ark. R. Prof’l Conduct 5.5(d). 41. Estate of Condon, 76 Cal. Rptr. 2d 922, 927-28 (Cal. Ct. App. 1998) (holding that Colorado law firm’s assistance of California local counsel in California estate litigation was not unauthorized practice of law); Fought & Co. v. Steel Engineering & Erection, Inc., 951 P.2d 487, 495-97 (Haw. 1998) (permitting award of fees to out-of-state firm that assisted local counsel and stating that a “blanket rule prohibiting the taxing of fees for the services of extrajurisdictional legal counsel who assist local counsel in the conduct of litigation among parties, who are themselves domiciled in different jurisdictions, would be an imprudent rule at best”). 42. Compare Rule XIV(b) (“participate in proceedings in a court”) with Rule XIV(f) (“participated, served as counsel, or entered an appearance pro hac vice”). Future cases could address whether such activity includes advising a client regarding the case, supervising local counsel, assisting with settlement negotiations, or assisting with discovery. 43. See Ark. R. Prof’l Conduct 3.3 (duty of candor). The duty of candor is enhanced in ex parte proceedings. Ark. R. Prof'l Conduct 3.3(d). 44. See Rule XIV(b)(3). Conceivably a lawyer’s non-appearance “participation” in a case could have been limited to an early stage of the case, such that it does not count against the three cases per 12-month limit even though the case remained pending within the 12 months. In such a circumstance, the applicant should carefully explain the nature and duration of the “participation” so that the court can make an informed decision regarding whether the requirements of Rule XIV(f) are met. 45. Cf. Brookens v. Committee on Unauthorized Practice of Law, 538 A.2d 1120, 1123-25 (D.C. 1988) (holding that attorney’s regular practice in District of Columbia violated spirit of limitation on “participating” in five actions or proceedings per calendar year and stating “that apparent technical compliance with a court rule is not dispositive of whether that rule has been violated”); In re Williamson, 838 So. 2d at 236-37 (holding that attorneys’ financial interest in lawsuits and advice to clients constituted unauthorized practice of law). 46. Rule XIV(f). 47. See Brown v. Wood, 257 Ark. 252,
516 S.W.2d 98 (1974) (affirming trial court’s striking of previous order granting enrollment to out-of-state attorney). 48. Rule XIV(g); see also Ark. R. Prof’l Conduct 5.5(a); Mays, 327 Ark. 302, 938 S.W.2d 830 (affirming sanction against lawyer for violating Rule 5.5 by assisting paralegal in the unauthorized practice of law). 49. See supra note 15. 50. See Fought & Co., 951 P.2d at 495-97; C.D. Summer, Right of attorney admitted in one state to recover compensation for services rendered in another state where he was not admitted to the bar, 11 A.L.R.3d 907 (1967). 51. See McKenzie v. Burris, 225 Ark. 330, 335, 500 S.W.2d 357, 361 (1973). 52. Ark. R. App. – Civil 2(a)(6), (8); Ark. R. Sup. Ct. 1-2(a)(5). 53. Defined in Rule XIV(a) of the Arkansas Rules Governing Admission to the Bar as “an attorney admitted to practice law in another State, District of Columbia, or territory, which would allow an Arkansas attorney to seek permission to participate in the proceedings of any particular case in the other courts of the state of licensure” of the nonresident attorney. 54. Rule XIV(a). 55. Rule XIV(f). 56. See supra note 4. 57. Rule XIV(b). To avoid delays, local counsel can submit the signed form and fee directly. 58. See Rule XIV(c). 59. Rule XIV(b)(1)-(7). 60. Rule XIV(c). 61. Typical practice is to submit the order immediately after filing the motion with notice to all counsel who have appeared, rather than waiting for responses or objections. 62. Arkansas Judiciary, eFile Instructions, available at https://www.arcourts.gov/ administration/acap/efile/efile-instructions (last visited Jan. 10, 2022). 63. Ark. R. Civ. P. 64(a); Ark. Sup. Ct. Admin. Order 21, § 3(b) (electronic filing is mandatory where available), § 7(c)(1) (service on registered users). ■
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Observations and Reflections on Litigating and Judging Under the Arkansas Constitution
By Justice Shawn Womack and Christian Harris
After serving for a decade in the Arkansas General Assembly, and eight years as a circuit judge, Justice Womack is now serving in his sixth year as an Associate Justice on the Arkansas Supreme Court. Mr. Harris is an Assistant Attorney General of Arkansas.*
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Introduction Do you remember your constitutional-law class? That course probably focused exclusively on the United States Constitution. You no doubt covered essential questions of rights arising under the Bill of Rights and the Fourteenth Amendment and explored the structural doctrines that define the powers of the legislative, executive, and judicial branches. Given the role the federal government plays in the lives of its citizens, the course is essential for lawyers. Chances are, however, you did not take a course on Arkansas constitutional law; and if you did, it was offered only occasionally as an elective.1 This is a significant omission—after all, every Arkansan also lives under the law of the Arkansas Constitution of 1874.2 Our state’s constitution plays a vital role in our federalism system of government and has deep and broad effects on the lives of all Arkansans. This article reminds advocates that the Arkansas Constitution deserves an important place in your issue-spotting toolbox. And because jurists, no less than lawyers, must grapple with questions arising under the Arkansas Constitution, this concept is relevant to both bench and bar. The Big Federalism Picture “Federalism was our Nation’s own discovery[,]” as Justice Kennedy memorably explained. “The Framers split the atom of sovereignty. It was the genius of their idea that our citizens would have two political capacities, one state and one federal, each protected from incursion by the other.”3 The agreement of the founders brought into being a federal government of limited, enumerated powers. On the most basic level, this means that when a litigant challenges a Congressional enactment, the first question is whether the law is legitimately tied to one of Congress’ enumerated powers.4 The question of whether a constitutionally-recognized right invalidates the law need be reached only if the law was properly enacted in the first place.5
“This article reminds advocates that the Arkansas Constitution deserves an important place in your issuespotting toolbox.”
State legislatures, however, act under the authority of the police power—the power to define the criminal law and “provide for the public health, safety, and morals.”6 Accordingly, the relevant question for a state statute is whether any superseding legal rule—federal or state—bars the law.7 In the area of individual rights, it is well established that while a state supreme court may not interpret a right more generously than the United States Supreme Court as a matter of federal law, it is free to do so when considering the rights provisions in its own state constitution. Two Bites at the Apple As United States Circuit Judge Jefferey S. Sutton, a leading commentator and scholar of state constitutions, observed, discussions of landmark constitutional decisions usually “begin and end with discussions of rulings by the U.S. Supreme Court, rarely discussing, rarely indeed even mentioning, related rulings of the state supreme courts that construe similar constitutional guarantees.”8 To illustrate this in another setting, imagine the Razorbacks, down by four points to Alabama with 20 seconds left in the game. It’s 3rd and goal and they have one timeout left. They run the ball and get stopped just inches from the endzone. Rather than call the timeout and line up on 4th down for a final chance to score and win the game, they let the clock run out without attempting another play. Of course, no coach who wants to keep his or her job
would forego the opportunity to try again, yet highly skilled and talented lawyers are in similar situations and elect to only run one play. They hand the ball to the federal constitutional claim that fails to score for their client and then let time expire without trying the play from the other playbook on their shelf: the state constitution.9 The Arkansas Constitution’s Declaration of Rights enumerates some rights that are textually identical, or nearly so, to their federal counterparts,10 others that differ, sometimes markedly, and some rights that appear only in the state constitution.11 Many state constitutions, including the Arkansas Constitution of 1874, contain guarantees of rights that the federal constitution does not have.12 There are important areas of law affecting Arkansans that arise only under the Arkansas Constitution.13 More formally, as noted above, in determining the rights of our citizens, we start with the United States Constitution as the floor to establish the minimum baseline of rights and we allow the states to build stairs up from there.14 So long as the states build their stairs going up to a higher level of rights for their citizens and do not attempt to create stairs going down below the federal floor, they may determine or recognize additional rights as they see fit.15 Arkansas criminal procedure is a pertinent example. In Griffin v. State16 and Sullivan v. State,17 the Arkansas Supreme Court interpreted Arkansas’ analogue to the
Fourth Amendment to provide heightened protection in the curtilage and against pretextual arrests, respectively, beyond the federal floor.18 Justice Ray Thornton’s opinion for the Court in Griffin held that a warrantless nighttime search of the curtilage violated article 2, section 15 of the Arkansas Constitution. An example of an Arkansas Supreme Court opinion showing special solicitude for the home in the area of individual rights, Griffin cited the “roughand-ready culture of the frontier,” which was “no less pronounced in the Arkansas Territory[,]” in defense of the principle that “a man’s home is his castle, and . . . even the King is prohibited from unreasonably intruding upon that home[.]”19 Later decisions occasionally exceed the federal floor,20 and other times not.21 In all events, however, judicial federalism remains a vital feature of Arkansas criminal-procedure jurisprudence.22 For other examples of Arkansas having adopted strong guarantees of personal liberties that go beyond the federal provisions we need look no further than the Declaration of Rights in Article 2. At least five sections of Article 2 of the Arkansas Constitution arguably provide heightened guarantees to Arkansans in the areas of freedom, independence, equality before the law, priority of the rights to private property and religious liberty, and protection against encroachment on these rights.23 While there are other examples, these five sections speak volumes about the priorities of our
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forefathers as they wrote our constitution. Having stood the test of time for nearly 150 years without alteration or diminishment, the statements in these sections regarding personal freedoms and liberties recognized in favor of our citizens are just as relevant today as when they were written, yet they are rarely raised. Unique Areas and Structural Issues There are areas of constitutional law that, in Arkansas, fall only in the domain of the state constitution. Ballot initiatives and election cases are both unique areas of law governed to a great degree by state constitutional provisions, and they continue to regularly occupy space on the Court’s docket. As you prepare your case, make sure you know what the Arkansas Constitution has to say about these Arkansas-specific areas of law. Although separation of powers is not specific to Arkansas, our state’s concept of separation of powers has its own nuances. Recently, the Arkansas Supreme Court addressed structural questions and the separation of powers. In Board of Trustees of the University of Arkansas v. Andrews, the Arkansas Supreme Court overruled two decades of recent opinions to return to prior precedent when it invalidated a legislative waiver of sovereign immunity.24 The Court held that the waiver—which allowed suits against the State under the Arkansas Minimum Wage Act—to be “repugnant to article 5, section 20 of the Arkansas Constitution.”25 Follow-on decisions have just begun to delineate the contours of Andrews.26 And on the administrative-law front, the Arkansas Supreme Court recently declined to give deference to agency rulings when it held in Myers v. Yamato Kogyo Co. that, “where ambiguity exists” in a statute, an agency’s interpretation of the statute “will be one of [the] many tools used to provide guidance” to the Court’s interpretive task, but that “agency interpretations will be reviewed . . . de novo.”27 The Perspective from the Bench Lawyers, of course, have the opportunity to raise constitutional issues in appropriate cases, and judges bear the responsibility of deciding them. When, and by what means, a state supreme court should 28
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depart from the federal floor is a delicate question demanding the highest degree of jurisprudential legitimacy. As then-New Hampshire Supreme Court Justice David Souter aptly put it: It is the need of every appellate court for the participation of the bar in the process of trying to think sensibly and comprehensively about the questions that the judicial power has been established to answer. Nowhere is the need greater than in the field of State constitutional law, where we are asked so often to confront questions that have already been decided under the National Constitution. If we place too much reliance on federal precedent we will render the State rules a mere row of shadows; if we place too little, we will render State practice incoherent.28 What Justice Souter said is true when federal and state constitutions overlap, but what about when state constitutions provide unique rights? In that scenario, federal precedent is of little help. One such Arkansas case, one of the most significant Arkansas constitutional decisions in the modern era in terms of its effect on all Arkansas citizens, was Lake View School District No. 25 v. Huckabee.29 In Lake View, the Arkansas Supreme Court held that the funding formula for public schools violated the requirement in Article 14, § 1 of the Arkansas Constitution that the State “shall ever maintain a general, suitable and efficient system of free public schools[.]”30 In its breadth of reach, perhaps no Arkansas Supreme Court case in the last several decades has had a greater impact than Lake View. This decision affected every public-school student and employee with an entirely rewritten funding formula and view of educational adequacy, and every taxpayer in the state through the redirection of billions of dollars of public funds. The Arkansas Supreme Court in Lake View interpreted a state constitutional provision to force the General Assembly, of which this article’s jurist co-author was a member at the time, to find efficiencies in
managing our system of public education while prioritizing education funding within our state’s budget. The General Assembly responded with numerous measures, including a requirement for more rigorous course offerings throughout the state, significant increases in teacher salaries, massive increases in facilities funding, consolidation of smaller districts, and regular reevaluations of what constitutes adequacy. While similar policy initiatives were always in the realm of the legislature’s reach, with many being addressed in smaller ways through the years before Lake View, the impetus for radical change was driven by a renewed focus on the words of the framers in the text of our constitution. Lake View thus shows how fidelity to the text of the Arkansas Constitution can support your client’s position. The change wrought in your case might not be as widespread as in Lake View, but it just might make the difference for your client. Conclusion We close with an exhortation: advocates should, indeed are obligated to, include the Arkansas Constitution in their issuespotting toolbox. Perhaps this approach is often overlooked because practitioners and judges tend to rely more heavily on cases interpreting our constitution than on the text of the document itself. Doing so often causes advocates to miss important distinctions between the constitutional text and the way it was applied to the facts of a previous case versus the best application of the text to their current case, resulting in missed opportunities to make winning arguments. This is somewhat understandable given the emphasis on stare decisis. However, as advocates craft their arguments, they should remember that the judicial oath is to uphold the constitution, not the case law that may or may not have correctly interpreted it. Endnotes: *The views expressed in this article are not intended to take a position on any case that might come before the Arkansas Supreme Court or litigated by the Arkansas Attorney General's Office. 1. Professor and former Chief Justice Howard Brill first taught his seminar on the
Arkansas Constitution in 2009. In 2012, your non-jurist coauthor, together with Arkansas attorney John Adams, developed and taught a similar seminar at Bowen, entitled The Arkansas Constitution: History, Politics, Law & Litigation. Both have continued on an intermittent basis. 2. The current Arkansas Constitution of 1874 is the fifth, following the statehood constitution of 1836, the secession constitution of 1861, the reconstruction constitution of 1864, and the fourth Constitution of 1868. For an accessible introduction to Arkansas’ constitutions, see Robert A. Leflar, A Survey of Arkansas’ Constitutions, in Arkansas: Colony and State (Leland Duvall ed., 1970). 3. United States Term Limits v. Thornton, 514 U.S. 779, 838 (1995) (Kennedy, J., concurring). 4. Thus, the question presented in United States v. Lopez: does the Commerce Clause authorize Congress to ban possession of a handgun within 1000 feet of a school? 514 U.S. 549, 551 (1995). 5. See Erwin Chemerinsky, Constitutional Law: Principles and Policies 166 (1997) (“[I]n evaluating the constitutionality of any act of Congress, there are always two questions. First, does Congress have the authority under the Constitution to legislate? Second, if so, does the law violate another constitutional provision or doctrine, such as by infringing separation of powers or interfering with individual liberties? In contrast, when evaluating the constitutionality of a state law, there is a single question: Does the legislation violate the Constitution?”). 6. Barnes v. Glen Theatre, Inc., 501 U.S. 560, 569 (1991); see also, e.g., Gonzales v. Raich, 545 U.S. 1, 42 (2005) (O’Connor, J., dissenting) (“The States’ core police powers have always included authority to define criminal law and protect the health, safety, and welfare of their citizens.”). 7. See, e.g., Chemerinsky, supra note 5, at 166 (explaining, albeit in federally-centric terms, that “[a] basic principle of American government is that Congress may act only if there is an express or implied authority to act in the Constitution; states, however, may act unless the Constitution prohibits the action”). Thus, for example, the question presented in Gallas v. Alexander was not
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whether any provision of the Arkansas Constitution allowed the Arkansas General Assembly to permit communities with dog or horse tracks to hold local referendums on electronic gambling. It was whether the Arkansas Constitution (according to the plaintiffs, nondelegation or the prohibition on special or local legislation) prevented it from doing so. 371 Ark. 106, 109, 263 S.W.3d 494, 497 (2007). 8. Jeffrey S. Sutton, 51 Imperfect Solutions: States and the Making of American Constitutional Law 1 (2018). Judge Sutton’s book and its sequel, Who Decides? States as Laboratories of Constitutional Experimentation (2021), are invaluable general introductions to state constitutional law. 9. The analogy, modified by the authors to adapt to Arkansas readers, comes from Judge Sutton, who posits a similarly confounding decision made by a Kentucky basketball coach. See Sutton, supra note 8, at 7. 10. Compare, e.g., U.S. Const. amend. IV (“The right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”), with Ark. Const. art. 2 § 15 (“The right of the people of this State to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no warrant shall issue, except upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or thing to be seized.”). 11. Compare, e.g., U.S. Const. amend. V (providing, in part, that “No person . . . shall be . . . deprived of . . . property, without due process of law; nor shall private property be taken for public use, without just compensation”), with Ark. Const. art. 2 § 22 (“The right of property is before and higher than any constitutional sanction; and private property shall not be taken, appropriated or damaged for public use,
Vol. 57 No. 1/Winter 2022 The Arkansas Lawyer
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WANT TO PURCHASE MINERALS AND OTHER OIL/GAS INTERESTS. Send details to: P.O. Box 13557, Denver, CO 80201. without just compensation therefor.”). 12. See Ark. Const. art. 14 § 1 (“Intelligence and virtue being the safeguards of liberty and the bulwark of a free and good government, the State shall ever maintain a general, suitable and efficient system of free public schools and shall adopt all suitable means to secure to the people the advantages and opportunities of education.”). 13. Ark. Const. amend. § 20 (balanced budget); amend. § 14 (no special legislation); art. 2 § 13 (right to remedy). 14. See, e.g., Oregon v. Hass, 420 U.S. 714, 719 (1975) (explaining that while “a State is free as a matter of its own law to impose greater restrictions on police activity than those this Court holds to be necessary upon federal constitutional standards[, . . .] it may not impose such greater restrictions as a matter of federal constitutional law when this Court specifically refrains from imposing them”). 15. It is the interpretive approach of the jurist coauthor that these rights still are limited to the text and original public meaning of those state constitutions. 30
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16. 347 Ark. 788, 67 S.W.3d 582 (2002). 17. 348 Ark. 647, 74 S.W.3d 215 (2002). 18. See Griffin, 347 Ark. at 797-800, 67 S.W.3d at 588-90; Sullivan, 348 Ark. at 650-56, 74 S.W.3d at 217-21. For an effective analysis of judicial federalism and Griffin and Sullivan, see Robert L. Brown, Expanded Rights Through State Law: The United States Supreme Court Shows State Courts the Way, 4 J. App. Prac. & Process 499 (2002). 19. Griffin, 347 Ark. at 792, 67 S.W.3d at 585. 20. See, e.g., State v. Brown, 356 Ark. 460, 156 S.W.3d 722 (2004) (holding, in the context of a “knock and talk” procedure to obtain consent to search a home, that the Arkansas Constitution requires law enforcement to apprise a homeowner that he or she may refuse consent). 21. See, e.g., Clark v. State, 374 Ark. 292, 301-04, 287 S.W.3d 567, 574-76 (2008) (Arkansas Constitution does not require complete recordation of custodial interviews); State v. Harmon, 353 Ark. 568, 113 S.W.3d 75 (2003) (declining to extend Sullivan to pretextual traffic stops); Rikard v. State, 354 Ark. 345, 123 S.W.3d 114 (2003) (declining to exceed the federal floor set by California v. Greenwood, 486 U.S. 35 (1988), and holding that one has no reasonable expectation of privacy in trash placed in a garbage can at the curb). 22. See, for example, Court of Appeals Judge Brandon Harrison’s forceful reaffirmation of Brown in Virgil v. State, 2020 Ark. App. 314, at 1, 603 S.W.3d 603, 604 (applying Brown to invalidate a consent search and “remind[ing] all who are interested that Arkansans’ right to be free from an unreasonable search of their homes is alive, well, and robust”). 23. Ark. Const. art. 2 §§ 2 (freedom and independence), 3 (equality before the law), 22 (right to private property), 24 (religious liberty), 29 (protection of unenumerated rights). 24. 2018 Ark. 12, 535 S.W.3d 616. 25. Id. at 10, 535 S.W.3d at 622. A good overview of Andrews is Robert C. Dalby, Comment, Too Plain to Be Misunderstood: Sovereign Immunity Under the Arkansas Constitution, 71 Ark. L. Rev. 761 (2019). Additionally, Mark Allison provides a valuable historical perspective on sovereign
immunity under the Arkansas Constitution in Mark H. Allison, Sovereign Immunity: Holford Bonds, the Brooks-Baxter War, and the Constitutional Convention of 1874, 54 Ark. Law. 44 (Winter 2019). 26. For an early recap of post-Andrews decisions, see Haley M. Heath, Evolution of Sovereign Immunity After Andrews, 54 Ark. Law. 48 (Winter 2019). 27. 2020 Ark. 135, at 5-6, 597 S.W.3d 613, 617; see also American Honda Motor Co. v. Walther, 2020 Ark. 349, at 10, 610 S.W.3d 633, 638-39 (reaffirming Myers in the context of interpreting the term “business income” in the Arkansas Tax Procedure Act). For an effective introduction to Myers, and its impact on the larger issues of deference, see Joshua C. Ashley, Un-bowing to Deference: Where We’re At, and Might Be Going, on Judicial Deference to Agencies in Matters of Statutory and Regulatory Interpretation, 56 Ark. Law. 10, 10-12 (Spring 2021). 28. State v. Bradberry, 129 N.H. 68, 82–83, 522 A.2d 1380, 1389 (1986) (Souter, J., concurring specially) (quoted in State v. Brown, 356 Ark. 460, 470, 156 S.W.3d 722, 729 (2004)). 29. 351 Ark. 31, 91 S.W.3d 472 (2002). For an essential recap of the Lake View series of decisions, see Justice Brown’s A Judicial Retrospective: Significant Decisions By the Arkansas Supreme Court From 1991 Through 2011, 34 U. Ark. Little Rock L. Rev. 219, 227–30 (2012). 30. Lake View, 351 Ark. at 52–53, 91 S.W.3d at 494.■
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Modest Means Panel Will Help Arkansans Caught in the Justice Gap
By Grace Wewers
Far too many Arkansans are priced out of the legal system. Let’s take a look at the situation through the eyes of a typical moderate-income Arkansan; let’s call her Jane Smith. Jane is a working mother of two. She has a job, working 40 hours a week plus overtime, but she still barely makes ends meet. Jane has been separated from her husband for many years without any contact between the two, and she has decided it is finally time to get a divorce. She initially applies for legal aid, but because Jane earns just above their financial requirements, she cannot get help this way. Jane cannot afford an attorney’s usual rates without giving up basic necessities for her and her children. Without anywhere else to turn, Jane would be unable to obtain representation in her simple divorce action. Now, however, there is a way for Jane to get representation. Community Legal Access is a new nonprofit in Arkansas, searching for attorneys to join its Modest Means Panel. Arkansas is in an attorney shortage crisis. The problem is particularly acute in Arkansas’ more rural counties, with at least one county having no attorneys.1 There is a great need for affordable legal help in Arkansas, particularly for those living in more underserved, rural areas. Through the use of platforms such as Zoom and Skype, attorneys have more tools than ever to help serve these underrepresented persons. Arkansas is far from a rich state. Its residents have a median income of $26,315.2 While those who can afford legal representation or qualify for free legal aid3 are able to acquire at least some kind of 32
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assistance through paid attorneys and pro bono work, there is a significant population left to handle their legal troubles without representation. Community Legal Access plans to use its Modest Means Panel to help fill this gap in representation. The purpose of Community Legal Access’ Modest Means Panel is to make affordable legal services available to low and moderate-income people in Arkansas, like Jane, who do not qualify for free services through legal aid. Community Legal Access does not engage in the practice of law itself; its main goal is to facilitate attorney-client relationships, at a fixed rate that modest-income people can afford. Part of facilitating these relationships includes recruiting attorneys to join Community Legal Access’ Modest Means Panel. As a part of the Modest Means Panel, Arkansas-licensed attorneys will be matched with clients, like Jane, who are seeking affordable, fixed-rate representation in a variety of cases, including domestic relations, bankruptcy, adoptions, guardianships, wills, probate, real property transactions and disputes, employment matters, landlord/tenant conflicts, consumer protection, insurance matters, and immigration. Jane would apply to Community Legal Access for assistance, and if she meets the program’s income criteria, she would be matched with an attorney who handles divorce matters. Clients will be screened by Community Legal Access to identify those with potentially solvable legal issues who make too much money to qualify for free
services, but do not make enough to be able to afford the regular rate of attorneys in Arkansas. Once Jane and her attorney are paired, the two would meet for an initial consultation. After this meeting, the attorney and Jane will each decide whether they want to accept the representation. If both parties agree, Community Legal Access will then step out of the relationship and the attorney will carry on Jane’s divorce until the case concludes. As a part of the Modest Means Panel, Jane’s attorney will accept a reduced, fixed rate fee. This is a great opportunity for all attorneys to help struggling Arkansans like Jane, while still getting paid for their work. If you are interested in joining Community Legal Access’ Modest Means Panel, please email us at communitylegalaccess@gmail. com or call Tony Mansell at (501) 2406542. Endnotes: 1. Profile of the Legal Profession 2021, American Bar Association, https:// www.americanbar.org/content/dam/aba/ administrative/news/2021/0721/polp.pdf (last visited Dec. 15, 2021). 2. Arkansas, U.S. News, https:// www.usnews.com/news/best-states/ arkansas#state-rankings (last visited Dec. 14, 2021). 3. 45 C.F.R. § 1611.3. ■
Attorney Disciplinary Actions
Final actions from October 1, 2021 – December 31, 2021,* by the Committee on Professional Conduct. Summaries prepared by the Office of Professional Conduct (OPC). Full text documents are available online through the Judiciary website by checking under “Opinions and Disciplinary Decisions” using the following link: https://www.arcourts.gov/ professional-conduct/opinions. [The “Model” Rules of Professional Conduct are for conduct prior to May 1, 2005. The “Arkansas” Rules are in effect from May 1, 2005.] *The disbarment was in September 2021.
DISBARMENT: VAN ES, TODD A., of Centerton, ABN: 2008202, in Supreme Court Case No. D-21-200, was disbarred by the Arkansas Supreme Court on September 9, 2021, upon referral by the Committee for violations found on a complaint by former client, Dawn Rodriguez. Van Es failed to respond to the Petition for Disbarment served on him, and the Supreme Court granted the Petitioner’s Motion for Default Judgment of Disbarment. INTERIM SUSPENSION: DONALDSON, BRYAN DEWITT, of Marion, ABN: 95071, in Committee Case No. CPC-2021-033, on a complaint before the Committee, by Order of Interim Suspension issued November 17, 2021, was placed on Interim Suspension for allegations of serious misconduct involving criminal activity.
STEWART, DANIEL A., of Greenwood, ABN: 95024, in Committee Case No. CPC-2021-034, on a complaint before the Committee, by Order of Interim Suspension issued November 12, 2021, was placed on Interim Suspension for allegations of serious misconduct involving criminal activity. CAUTION: BURKS, CHRISTOPHER WESLEY, of North Little Rock, ABN: 2010207, in Committee Case No. CPC-2021-018, on a complaint before the Committee, by Consent Findings & Order issued November 1, 2021, for violations of AR Rules 8.4(c) and 8.4(d), was Cautioned, and assessed costs of $50.00 for his conduct in this matter. Burks violated a Circuit Court Protective Order and provided false information, which caused harm to the parties involved and undue burden on the judicial system. ■
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in memoriam Leon Burrow of Blytheville died May 15, 2021, at the age of 85. He graduated from McCallie Preparatory School in Chattanooga, Lambuth University and Vanderbilt Law School. He was a former deputy prosecutor and practiced law in Blytheville until his death. He was past president of the Blytheville Bar Association and the Mississippi County Bar Association. Jesse Lee McCombs of Lowell died on January 24, 2022, at the age of 39. Jesse was a member of the Cherokee Nation. After graduating from Colcord High School in 2001, Jesse earned a bachelor’s degree in Business Administration from Northeastern State University in Tahlequah, OK. He then moved to Arkansas in 2005 to attend the University of Arkansas School of Law. While at the School of Law, Jesse spent a summer studying international law in Russia. Over more than 13 years of practicing law in Northwest Arkansas, Jesse was passionate about helping his friends and clients through often difficult situations and earned the respect of his peers. Judge Vann Smith of Little Rock died on January 22, 2022, at the age of 71. Following graduation from law school at the University of Arkansas, Judge Smith served as a law clerk for Arkansas Supreme Court Justice Conley F. Byrd, Sr., before joining his brother Bob and George Jernigan in the private practice of law. Former Governor Bill Clinton appointed Judge Smith to the Pulaski County Circuit/Chancery Bench, Sixth Judicial District, on November 8, 1989, for a term to expire on December 31, 1990. In 1990, Judge Smith was elected to the trial bench and served until his retirement on December 31, 2020. Since 2003, the trial judges in the 6th Judicial
District voted annually for Judge Smith to assume the Administrative Judge position, which he held until he retired. A lifetime member of the Arkansas Judicial Council, Judge Smith served on the Council's Board of Directors and as President in 2012-2013. He was also President of the Judge William R. Overton Inn of Court, and served on the Arkansas Judicial Discipline and Disability Commission. Albert Janney Thomas Jr. of Clarkedale died December 21, 2021, at the age of 84. He graduated from West Memphis High School in 1955. Jan continued his education at the University of Arkansas, obtaining a B.S.B.A. in accounting in 1959 and then receiving his Juris Doctorate in 1962. Jan began practicing law in 1963 in West
Memphis with Nance Law Firm, ultimately opening his own law practice in 1965. Always looking for ways to support and assist his community, he served as former Deputy City Attorney for West Memphis, as well as a former Deputy Prosecutor for the Second Judicial District. He also served as United States Bankruptcy Trustee for the Eastern District of Arkansas, Jonesboro, Helena, and Batesville Districts. A member of the Arkansas House of Representatives for the 1969 and 1971 legislative sessions, he was recognized for his service to others and received the Outstanding Volunteer Attorney of the Year for Crittenden County in 2006 and the Lawyer Community Legacy Award from the Arkansas Bar Association in 2014. The information contained herein is provided from the members' obituaries.
At Public Notice Agency, we have one important mission: place all legal notices for firms like yours, saving you money and time while ensuring accuracy. Our team uses innovative technology to place your notices in qualified newspapers. We confirm scheduled publication, manage accounting, and provide you with proofs along with one invoice. INTERESTED? EMAIL US! INFO@PUBLICNOTICEAGENCY.COM OR BY PHONE (501) 823-9002 Vol. 57 No. 1/Winter 2022 The Arkansas Lawyer
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Arkansas Bar Foundation 2224 Cottondale Lane, Little Rock, Arkansas 72202 www.arkansasbarfoundation.com • 501.801.5670
Memorials and Honoraria The Arkansas Bar Foundation acknowledges with grateful appreciation the receipt of the following memorial, honoraria and scholarship contributions received during the period November 1, 2021, through January 31, 2022. In Memory of Vincent W. Foster, Jr. Judge Dick Moore, Jr.
In Memory of Gus B. Walton Judge James M. Moody
In Memory of Judge Melinda Gilbert Judge Dick Moore, Jr.
In Memory of Roxanne Tomhave Wilson Judge James M. Moody Judge Dick Moore, Jr.
In Memory of Robert M. Hanlon Hayden and Gordon Rather Judge Dewain William Hodge, Sr. Judge Robert T. Dawson In Memory of Ronald Jean “Blue” Killion Judge Robert T. Dawson
HONORARIA, SCHOLARSHIP CONTRIBUTIONS, AND OTHER GIFTS
In Memory of James H. McKenzie Judge James M. Moody
Arkansas Bar Foundation Hermann Ivester Robert S. Jones, Jr.
In Memory of Frank Newell Silas H. Brewer
In Honor of Michael H. Crawford Jeffrey and Lester McKinley
In Memory of Bobby Odom Frank S. Hamlin
E. Charles Eichenbaum Scholarship Fund Peggy and L.R. Jalenak
In Memory of Judge William R. Overton Judge James M. Moody In Memory of Judge John B. Plegge Frank S. Hamlin In Memory of Don Schnipper Judge James M. Moody In Memory of Judge Vann Smith Patti and Charles Coleman Laura Partlow Foster Nancy and Judge John N. Fogleman B. Jeffery Pence Hayden and Gordon Rather Rex M. Terry Sharon and Fred Ursery Mike Wilson In Memory of Mrs. Gerry Eilbott Soltz Kirk N. Wilson In Memory of A. Jan Thomas Patti and Charles Coleman Michael R. Gott Charles D. Roscopf 36
In Memory of William H.L. Woodyard Judge Dick Moore, Jr.
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Friday, Eldredge & Clark/Herschel H. Friday Scholarship Fund Friday, Eldredge & Clark J. Smith Henley Scholarship Fund Anonymous McKinley Family Scholarship Fund Jeffrey and Lester McKinley
We are pleased to announce the establishment of a newly endowed scholarship: George N. Plastiras Scholarship Fund Given in his honor by: Lyle D. Foster Philip Miron Arkansas Bar Foundation Memorial Medallions
In Memory of George E. Pike, Jr. Honored by: The Family of George E. Pike, Jr. In Memory of Judge John B. Plegge Honored by: Watts, Donovan, Tilley & Carson, P.A.
In Honor of Gordon S. Rather, Jr. Jeffrey and Lester McKinley Charles B. Roscopf Scholarship Fund Charles D. “Chuck” Roscopf
CONGRATULATIONS! The Arkansas Bar Foundation congratulates all Arkansas law school student recipients of the Foundation administered endowed scholarships for the 2021-22 year. We are grateful to all who made these scholarships possible with your contributions to these endowments. Please see the opposite page for this year’s scholarship listing.
ARKANSAS BAR FOUNDATION SCHOLARSHIPS 2021-2022 Name of Endowed Scholarship
Law Student Scholarship Recipients UA Little Rock Bowen School of Law
ABF Misc. Scholarship ( in honor of Sebastian County Bar, Mike Gorman, U.M. Rose, Edward Wright) Donald J. Adams Guy Amsler, Jr. Arkansas Association of Women Lawyers* Barrett/Deacon Bogle-Sharp Ruth Huskey & John H. Brunson John A. “Jack” Davis III E. Charles Eichenbaum R. A. Eilbott, Jr. Justice John A. Fogleman Vincent W. Foster, Jr.* Friday, Eldredge & Clark/ Herschel H. Friday Judge J. Smith Henley Justice J. Frank Holt W. Jane Knight James H. Larrison, Jr. Ernest G. Lawrence, Jr.* Edward Lester Brian MacMillan Austin McCaskill Horace and James McKenzie McKinley Family Col. William A. “Bill” Martin Judge John E. Miller Judge William R. Overton Col. C. E. Ransick Rather, Beyer & Harper Justice Andree Layton Roaf Ramona J. Roe Charles B. Roscopf Rose Law Firm U. M. Rose Sebastian County Bar Association Shackleford/Phillips Justice George Rose Smith Smith Stroud McClerkin Dunn & Nutter Stella Boyle Smith David Solomon M. Jeff Starling, Jr.* Judge Thomas Clark Trimble C. R. Warner Harry P. Warner Bernard & Bud Whetstone Roxanne Tomhave Wilson Wilson & Associates Ethics Wright, Lindsey & Jennings LLP Paul B. Young Judge Henry Woods Arkansas Bar Foundation Professor of Law W.A. Eldredge, Jr. Award: Tyler Bone * Scholarships not awarded at this time
Sarah Voss
University of Arkansas School of Law
Shelby Davis Jonathan Jenkins Jacob Holland Bennett Waddell Tyler Mlakar
Cassius Price UA at LR Law Review Editorial Board
Brett Whitley Amelia Hensel Joshua Sullivan Jasmine Hicks Kaitlyn Logan
Cody Gracie Caleb Epperson James Teague Tyler Mlakar Justin Gunderman
Bailey Gambill Fariha Momin Ashley Pratt Cassius Price Paige Harris
Caroline Brown Helen Manuel Anna Cunningham Shayla Dawson Donta Dismuke
Christina Cummings Lindsey Roy Amelia Hensel Weston Sizemore Monica Woolems
Connie Stephany Quintero Audra Halbert Ruby “Katie” Dean Sparrow
Mariajose Reyes Marcus Montgomery Julie Hill Lyda Ryan Robert Stodola Sydney Parham Triston Cross Jonathan Valley
Abriel Williams Monica Speir Jon Bruning Eliza Rogers Jacobe Malone Jasmine Hicks Elizabeth Bray Melody Pruitt Patrick Taylor Christopher Yeatman Katherine Clark Anuj Teotia Professor Lindsey P. Gustafson
Trent Freeman Akayla Lyons Edgar Hernandez Madison Miller Mason Gates Donta Dismuke Hannah Lundry Elizabeth Esparza Professor Will Foster
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TSCHIEMER
LEGAL BRIEFING Handling all your briefing needs Robert Tschiemer is the author of the Arkansas Bar Weekly Case Summaries, available at www.arkbar.com. For a complete list of decisions see www.tschiemerlegalbriefing.com
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Thank You 2021 ArkBar Volunteer Speakers and Planners Emily Abbott Vanessa Cash Adams Allison C. Albritton Amber Wilson Bagley Jill Barham Jordan Bates-Rogers Judge Cristi R. Beaumont Kandice A. Bell Turney P. Berry David Biscoe Bingham Katie Watson Bingham Matthew C. Boch Abraham Bogoslavsky Will Bond Amelia C. Botteicher Dylan James Botteicher Alexandra Kosmitis Bowen Brian Bowen Wade Bowen Valerie F. Boyce David R. Bridgforth Nicholas Jacob Bronni Ashlea Brown Judge Earnest Brown Michelle Burge Julia L. Busfield Jenny O. Caldwell Dr. Joseph D. Candido Joshua T. Carson William A. Cash, Jr. Jeff Chadwick Professor Carl J. Circo Brian M. Clary Aaron Cole Cochran Craig Cockrell Representative Andrew Collins Judge Cathleen V. Compton Nate Coulter Sarah Cowan Kevin A. Crass Junius Bracy “JB” Cross, Jr. Adam H. Crow Professor andré douglas pond cummings Representative Carol C. Dalby Lillian Dee Davenport Amanda W. Denton Dean John M.A. DiPippa Jennifer Donaldson
Missy McJunkins Duke Katelyn Marie Eaves Tamika Edwards Lauren Mary Anne Elenbaas Taylor Dawn Ellis Bob Estes Sara Ann Farris Daniel Knox Faulkner Professor Rebecca Feldmann Milton Fine II Hugh A. Finkelstein Professor Lynn Foster Karey Gardner Judge Robert B. Gibson III Ashley Haskins Gill Mary Elizabeth Goff Jennifer Goode Nicole McKenzie Gore Maya Goree David Allen Grace Michael Goswami Adrienne Griffis Shannon L. Halijan Bilenda Harris-Ritter Chief Judge Brandon J. Harrison Michael B. Heister Vincent Henderson J. Blake Hendrix Judge Robert L. Herzfeld, Jr. Kat R. Hodge Glen Hoggard Caleb Douglas Hollinger Cyril Hollingsworth Timothy N. Holthoff Joel Hoover Lauren White Hoover Lori D. Howard Governor William Asa Hutchinson II Anna Imbeau Kathryn M. Irby Judge Patricia A. James Sarah Jewell Judge Amy Dunn Johnson Darnisa E. Johnson Laura D. Johnson Judge Shawn J. Johnson Jamie Huffman Jones Paul W. Keith
40 The Arkansas Lawyer www.arkbar.com
Chief Justice John Dan Kemp Emily J. Kembell Jane A. Kim Tom Kirkham Robert Kirkland Cynthia Worthing Kolb Michael Langley Stacy L. Leeds Michael J. Leicht Stark Ligon Perry Isaac Linam Judge Donna M. Lipsmeyer Jennifer Loiacano Nate Looney Representative John D. Maddox II Nga Mahfouz Angela Michelle Mann Jonathan P. Martin Skye Martin Benjamin R. McCorkle David McCoy Sarah McDaniel J. Cliff McKinney II Kaye McLeod Robert S. McMahan Matthew Brian Miles Rebecca Miller-Rice Collier Moore Judge Christopher W. Morledge Judge Charles L. Moulton Jonathan Nichols David G. Nixon Trae Aaron Norton Sach D. Oliver Allison Christine Pearson Michelle Perez Antwan Phillips Ashley Phillips Judge Mackie M. Pierce Madison Pitts Michael Marion Pollock, Jr. David Powell Kendra Khrystal Pruitt Jeff Puryear John Rainwater Adam D. Reid Judge W. Michael Reif Georgia Robinette
Gary B. Rogers Brian Rosenthal Alexandra Rodery Rouse Judge Lee P. Rudofsky Attorney General Leslie C. Rutledge David J. Sachar Mary M. White Schneider John Thomas Shepherd Chelsy Shields Madhav Shroff Stuart Spencer Carter C. Stein Ashley Stepps Bill Stovall Joanna Boyles Taylor Bruce E. Tennant Jim Tilley Christopher L. Travis Jon Tribell Justice Annabelle Imber Tuck Senator Clarke Tucker Cathy Underwood Judge Ashley R. Vailes Judge Bart F. Virden Professor Kim Vu-Dinh Jack Wagoner III Professor David Walker Elisabeth A. Walker Brooke Augusta Ware Jason Waters Brett D. Watson Michael M. Watts Judge Susan Kaye Weaver Judge Morgan E. Welch, Jr. Laura R. Westbrook Blake Whittle Carrie Williams Robbie Wills Emily Wineland Justice Rhonda K. Wood Andrea Woods Lisette Yang Harold Wayne Young
Spring 2022 CLE Calendar February 23-25
March 30
April 8
60th Annual Natural Resources Institute
The New Arkansas Supreme Court Office of Ethics Counsel: What It is & How it Works
Workers’ Compensation Conference
DoubleTree, Hot Springs
Webinar
Inn at Carnhall Hall Fayetteville
April 22
May 4-6
Construction Law Conference
25th Annual Environmental Law Conference
Oaklawn Racing Casino Resort, Hot Springs
On-Demand CLE Do you still need to register for your six free hours of on-demand CLE that are included with your membership this bar year? Register here for your free CLE: https://eazyform.app/ form/mf-47246392 View the on-demand library, seminar agendas and register on CLE CENTRAL.
May 12-13
Inn at Carnhall Hall Fayetteville
June 15-17 124th Annual Meeting
25th Annual DebtorCreditor Conference
Pleasant Valley Country Club, Little Rock
https://bit.ly/arkbarevents
Hot Springs Convention Center
Also in June — Best of CLE!
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