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October 1979 Vol. 13, No.4
~ THE OFFICIAL PUBLICATION OF THE ARKANSAS BAR ASSOCIATION
Arkansas Lawyer SPECIAL FEATURES
OFFICERS E. Harley Cox, Jr., President
Phillip Carroll, President-elect James A. Buttry, Secretary-Treasurer
EXECUTIVE COUNCIL
Robert L. Jones, III David R. Malone Thomas D. Ledbetter Tom B. Smith Robert G. Serio LeRoy Froman William C. Bridgforth Dennis Shackleford Clint Huey Christopher Barrier Webster L. Hubbell Gus B. Walton, Jr.
EX OFFICIO E. Harley Cox, Jr.
Phillip Carroll Wayne Boyce James A. Buttry W. Russell Meeks, III John F. Stroud Herschel H. Friday
EDITOR
C. E. Ransick
Teaching Each Other: The Arkansas College of Trial Advocacy Steven H. Goldberg Devitt Committee Recommendations John A. Krsul, Jr. Law of Gambling: Arkansas-Part II Fall Legal Institute ..................•............... Organizational Directory Annual Meeting Photo Highlights Arkansas Tax Procedure Act Eugene G. Sayre Pleasure Boats, Swimmers and Water SkiersRecreational Accidents on Navigable Inland Waters James A. George
140 144 151 158 159 167 176
180
REGULAR FEATURES President's Report E. Harley Cox, Jr. Juris Dictum ............•.•.•.............C. R. Huie Legal Economics Fran Shellenberger Law School News. . . . • . • . • . • . • . . . . . . . . . . . . . . . . . . . . .. B. Tarkington Oyez-Oyez In Memoriam . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. Executive Council Notes ...•.•.•......James A. Buttry Service Directory Lawyer's Mart C. E. Ransick Addenda Ethics.............................. W. Christopher Barrier Context AICLE News Claibourne W. Patty, Jr. The Arkansas Bar Foundation Boyce Love Tax Tips Paul D. Williams Advising Innovators Robert R. Keegan
138 148 149 178 175 184 142 IBC 186 187 174 154 156 139 186 172
The Arkansas Lawyer (USPS 546-040) is published quarterly by the Arkansas Bar Association, 400 West Markham, Little Rock, Arkansas 72201. Second class postage paid at Little Rock, Arkansas. Subscription price to non-members of the Arkansas Bar Association $6.00 per year and to members $3.00 per year included
in annual dues. Any opinion expressed herein is that of the author, and not
EDITORIAL COMMITTEE
Robert T. Dawson E. Alvin Schay Cyril Hollingsworth
necessarily that of the Arkansas Bar Association, The Arkansas Lawyer, or the Editorial Commi«ee. Contributions to The Arkansas Lawyer are welcome and should be sent in two copies to the Arkansas Bar Center, 400 West Markham, U«le Rock, Arkansas 72201. All inquiries regarding advertising should be sent to The Arkansas Lawyer. above address.
October 1979/Arkansas Lawyer/137
PRESIDENT'S REPORT by E. HARLEY COX, JR.
EFFICIENCY AND ETHICS AFFECT LAWYERS ECONOMIC WELFARE As a youngster growing up in Fulton, Arkansas, with 485 bona fide inhabitants, I saw the daily activities of three independent blacksmith shops which provided services to the farming community. The ring of hammer on anvil was a familiar and regular part of the scene. With an abundance of mules and mule-drawn agricultural implements, it seemed that blacksmiths would be necessary forever. Today, there probably isn't a bona fide blacksmith shop left in the entire state, much less in Fulton. The blacksmith's passing from the scene vividly illustrates the well-known fact that only those services which meet a genuine and continuing need retain a place in the professional world. This applies to lawyers quite as much as to any other activity. The direct and simple answer then is that lawyers' capabilities and services must be relevant and efficient for the needs of the society which they serve. Cannon Six of the Code of Professional Responsibility mandates that "a lawyer should represent a client competently". In today's rapidly changing world, this requires lawyers to learn new laws on a daily basis which change the old pattern by which things are done. Perhaps equally important, lawyers must learn more efficient ways to accomplish their work. Your Association, working with the Arkansas Institute for Continuing Legal Education, strives to make available opportunities for all of us to remain current and efficient. I urge you to take advantage of them.
STUDY OF DISCIPLINE CHANGES On June 26th, representatives of the American Bar Association met with the Executive Council, the Professional Ethics and Grievances Committee of the Association, members of the Supreme Court, and members of the Supreme Court's Committee on Professional Conduct to review the newly adopted Standards for Professional Discipline recommended by the American Bar Association. It is our hope that after careful review of this and other potential changes, this Association will recommend improvements in the system of professional discipline in our state which, while protecting rights of accused lawyers, will provide public assurance that the professional is continuing to maintain high standards. 138/Arkansas Lawyer/October 1979
COMMITTEES OFF AND RUNNING Most active Committees of the Association have outlined their work schedules and objectives for the year, planned their meetings and are well underway. Read the current monthly edition of the NEWS BULLETIN to keep abreast.
OPPORTUNITIES AT HAND On September 13th and 14th, during the Fall Legal Institute, among other informative and helpful programs will be the presentation of the new Arkansas Form Book prepared by Dr. Robert R. Wright, with specific discussions of the more commonplace transaction affected. In my opinion, no lawyer can competently practice law in the state without this form book. It is thoughtfully written and comprehensive in scope. In January, during the midwinter Bar meeting, there will be a very comprehensive seminar on a variety of subjects which will probably include updating criminal law, the probate system and the estate planning system. Your attentive participation in these events will make you a better lawyer and increase your earning power.
LOOK FOR YOUR NAME IN PRINT In keeping with our plan better to publicize the good activities of lawyers, Kaye Oberlag solicits your help in leaming about your community activities and that of other lawyers about whom you know. Drop her a note when you know of a particularly useful action or honor accorded to a fellow lawyer, or to yourself. Press releases will be sent to your local media regarding lawyers' participation of seminars of AICLE or the Bar Association.
PUBLIC INFORMATION ACTIVITY By this time you should be hearing pUblic service announcements on radio stations in our continuing effort better to inform the public of its need for legal services. It is our hope that several television stations will run pUblic service video spots toward the same goal. The end purpose, of course, we hope may be to encourage contact by persons with a lawyer if they have a matter with which professional help may be needed. ~
ARKANSAS BAR fOUNDA rlON by Boyce Love Chairman
ARE YOU A MEMBER OF THE ARKANSAS BAR FOUNDATION? Ask any member of the Arkansas Bar Association whether he is a member of the Foundation and chances are he will say: "Yes". A substantial percentage of Association members giving this answer are wrong! Somehow Arkansas lawyers have gotten the impression that by becoming a member of the Arkansas Bar Association they automatically become members of the Arkansas Bar Foundation. Not so!
According to Article III of the Constitution of the Foundation, the members are: "the officers; the members of the Executive Committee and the past Presidents of the Arkansas Bar Association; the members of the Board of Directors and the Fellows of the Arkansas Bar Foundation; and those individuals who receive or have received the awards given by the Arkansas Bar Foundation." At this time there are 294 Fellows of the Foundation. This number is, of course, increased when the officers, Board members and award winners are added to the Fellows, but since many of these are also Fellows, the increase is not substantial. Therefore, only about 12% of the members of the Association are also members of the Foundation.
It is fairly well known among Bar leaders that the Arkansas Bar Foundation is among the very best, if not the best, of all Bar Foundations in the United States. Considering the small number of lawyers in Arkansas compared to the populous states, this is almost unbelievable. When one considers that not all Arkansas lawyers are members of the Association and that only 12% of the Association members are Foundation members, the superior status of our Foundation is truly hard to comprehend. Since the beginning of our Fellows program, there has been a continuous and steady addition to the Fellows roster, but it has been slow. However, there has been no concentrated drive to bring in new Fellows. Heretofore, we have depended on word of mouth, natural curiosity and the lure of having one's picture displayed in the Hall of Fellows to get lawyers interested in becoming Fellows. Obviously, some of our prospects need a boost.
William A. Eldredge has assumed the Chairmanship of the Committee On Selection Of Fellows with 12 members from around the state. At their first meeting, the committee will decide how to proceed, but, in general, the thinking is that there are presently a considerable number of Association members who can and should be Fellows. We believe that most of these lawyers simply need a little urging-a reminder of the benefits of becoming a Fellow-in order to be persuaded to join their friends and colleagues who are already on the rolls. Many have never been given a real opportunity to become a Fellow. Some do not know how to do so. It is my belief, however, that virtually every Arkansas lawyer, once he is informed about the Fellows program, wants to be a Fellow. Some of these lawyers can write the necessary $1,000 check immediately. Others will find it more convenient to pledge the money over a period of years and pay installments as the majority of the present Fellows have done.
Bill Eldredge and his committee plan to sit down with the Fellows' membership roll and go over it in comparison with the Association roll. They will pick out those lawyers who, in their opinion, should already be Fellows and invite them to become members.
I want to emphasize that this is still not a concentrated membership drive. The day may come when such an effort is necessary, but this is not the time. This committee's efforts will be more of a "reminder" than anything else. The plan is to reach those who really should have already become Fellows but for one reason or another have not yet done so. If you are not yet a Fellow and a committee member calls on you-please hear him out. If you do not receive a call but are ready to learn more about becoming a Fellow, call Bill Eldredge. If you already know you want to become a Fellow, don't wait for a call, contact Bill now. There are many other committees of the Foundation that will be functioning during this Bar year, and we will discuss more of them with you in later reports.
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October 1979/Arkansas Lawyer/139
TEACHING EACH OTHER: THE ARKANSAS COLLEGE OF TRIAL ADVOCACY By Professor Steven H. Goldberg UALR School of Law
The idea for the College originated with Henry Woods of Little Rock. According to Dean Robert Walsh, when he arrived to assume the deanship at the UALR School of Law, he was met at the airport by Henry Woods who allowed him three or four steps upon Arkansas soil before suggesting that the law school ought to undertake such a trial advocacy program. During early 1979, the Arkansas Institute of Continuing Legal Education Board of Directors decided to cosponsor such a college. A program committee consisting of Dean Walsh, Phillip Carroll, Winslow Drummond, Professors Steven Goldberg and Kenneth Gould, Boyce Love, Executive Director Clay Patty, Bill Wilson, and Henry Woods began to develop the format. Not only did the committee plan the program and select and recruit the faculty as is usual in continuing legal education programs, but they also handled the complex details of juggling busy schedules, securing the necessary extra videotape equipment and operators, and generally managed the longest and most intensive AICLE program yet offered. When the planning process was complete, the committee had come up with a five day program which emphasized individual student performance of trial techniques under the guidance of experienced teachers and attorneys. The program was particularly designed for lawyers with zero to five years of trial practice experience. The program was a condensation of the semester long trial advocacy course required of all graduates at the UALR School of Law, combined with the successful techniques of the Hastings College of Trial advocacy and the National Institute of Trial Advocacy. There were demonstrations and lectures by experienced attorneys. The central feature of the program, however, were the workshops, each of which had a workshop leader and two workshop faculty members, one of whom was a plaintiffs attorney and one a defense attorney. The format adopted by the program committee struck a responsive chord among Arkansas lawyers. The College was oversubscribed. Attorneys came from all parts of the state. On Sunday, May 13, the College began with a demonstration trial. The fictional plaintiff, Mary Dixon, widow of a 140/Arkansas Lawyer/October 1979
\ lawyer, was represented by a "dream" team of plaintiffs' attorneys: e. robert wallach, Scott Baldwin, and James Jeans. Providential Insurance Company, the fictional defendantthat denied the widow's claim for accidental death benefits, was represented by an equally distinguished team of advocates: Alston Jennings and Boyce Love of Little Rock and James George. Henry Woods served as judge of this hard fought case. Professor Barbara A. Caulfield, Director of the Hastings Center for Trial Advocacy and an oftentimes teacher in the National Institute of Trial Advocacy, set the tone for the week by opening the Monday morning session with the observation that the schedule called for an 8 a.m. start and a 7 p.m. finish for the remainder of the College. Each day the participants conducted parts of a trial that they had prepared the day before-<lpening statements, direct examinations, cross-examinations, and closing arguments. The participants were divided into three groups, led by Professors Caulfield, Goldberg and James George. Each group, under the direction of one of these three workshop leaders and two workshop faculty members, consisted of thirteen or fourteen enrollees. This excellent student/faculty ratio led to highly individualized instruction for each participant. Twice daily each participant conducted the part of trial then under study, was videotaped, critiqued by the workshop faculty, and then critiqued again while watching the videotape performance with the workshop leader. The exercise sessions were separated by demonstrations of various aspects of the trial probl em with discussion about the method of the demonstration and questions from the participants to the demonstrating faculty. Discussions and practice sessions focused 0 n topics like why an opening argument succeeds or fails, how to pace direct examination to keep the jury's attention, and how to control a witness on cross-examination. At a luncheon on the last day of the College each participant was awarded a diploma from the Arkansas College of Advocacy. In thanks for her leadership role in org anizing and directing the first Arkansas College of AdvocaCY, Professor Caulfield's student section also arranged for her to receive an Arkansas Traveler Certificate signed by Governor Clinton.
The evaluation completed by each participant indicated a widespread belief that the College had improved their trial skills. The enthusiastic response of the bar and the evaluations submitted by the participants indicated that the College of Advocacy was an extremely successful program. Indeed, it is contemplated that the program will become an annual event at the UALR School of Law. The chance to learn by doing and the opportunity to share experiences with other attorneys made the experience a broadening one for everyone involved. The College was a success because James George, a workshop leader and trial attomey of great experience, could return to Baton Rouge feeling that he had learned as much as he had taugh!. In medieval days, before the organization of large universities, a college was a group of people with a common educational purpose. All members of the college were both teachers and students. So it was with the first annual Arkansas College of Trial Advocacy, convened from May
13 through May 17 at the UALR School of Law. The College was a joint undertaking of the UALR School of Law, the Hastings Center for Trial Advocacy, and the Ar1<ansas Institute for Continuing Legal Education. Fortytwo Ar1<ansas attomeys enrolled as students for five days of intensive study and exercise in trial skills. Thirty of Arkansas' most experienced trial lawyers participated as faculty, along with an equally distinguished cast of nationally recognized practitioners and educators. From outside of Arkansas came James Jeans of the University of Missouri Law School at Kansas City, Professor Barbara Caulfield, the Director of the Hastings Center for Trial Advocacy, E. Robert Wallach of San Francisco, James George of Baton Rouge, and Scott Baldwin, former president of the Texas Trial lawyers Association. James George summarized the success of the College during his ciosing remar1<s: "One of the reasons I try to take the time to teach at this kind of college is that I always end up learning the mos!.",",
Alston Jennings for the defense.
James George, Baton Rouge, addresses a jury.
Participant practices opening argument.
E. Robert Wai/ach, San Francisco, during a demonstration.
October 1979/Arkansas Lawyer/141
EXECUTIVE COUNCIL NOTES by James A. Buttry Secretary-Treasurer
House of Delegates Begins New Bar Year The House of Delegates at its last meeting, June 8, wound up an unusually productive and exciting bar year and prepared for a year of challenge and hard work under the leadership of new officers. Harley Cox assumed the office of President and announced the selection of John Stroud as Chairman of the Executive Council. The election of Phil Carroll as President-Elect was formally announced. At district caucuses House of Delegates representatives for the Executive Council were elected. The representatives elected for the current bar year are LeRoy Froman (Northeast), Gus Walton (Central), Tom Ledbetter (Northwest) and Clint Huey (South). President Cox announced the Committee Chairmen for the year and the membership of the Standing Committees. (A complete Organizational Directory is set forth in this issue, beginning at page 159.) The House received Jim Rhodes' report on activities and action during the 1979 Legislature, an area of Bar responsibility to which the House and the Executive Council devoted a substantial portion of its time and attention during the 1978-79 year. More than forty items of proposed legislation were considered and debated by the House and the Council. Some bills received Association endorsement, and the results would indicate that the effort of the Association was of significant effect. Reports distributed during and immediately after the legislative session have told of the Association's efforts and the results in detail. Bills which became law include those pertaining to revision of the corporate franchise tax, revision of state tax administrative procedure, the medical malpractice stature of limitations, dispensing with probate, uniform juror selection and judicial 142/Arkansas Lawyer/October 1979
salaries. Certainly one of the most important acts of the Legislature was that which established the structure and procedures for the new Court of Appeals. The Association's 1978-79 year was marked by unusual achievement in other areas, some of which have been the subject of attention, concem and effort for a long time. As reported in the July issue, the Association is particularly indebted to a number of committee Chairmen and others for results obtained during the year. Otis Turner and his committee were successful in urging the Supreme Court to create a committee on the unauthorized practice of law. The Prepaid Legal Services Committee and Arkansas Prepaid Law, Inc., under the leadership of Harold Simpson, after a protracted and strenuous effort, were able to effect arrangements for the writing of prepaid legal insurance in Arkansas. Dennis Shackleford and the Special Committee on Cameras in the Courtroom prepared during the year a draft report for consideration and, ultimately, action by the Association. Under the leadership of Charles Eichenbaum, the Association continued to make its position known on various items of proposed federal legislation, including bills pertaining to federal court reform, diversity jurisdiction and carryover basis for estate tax. In August of last year, President Boyce announced that the Association had received special recognition in one area of endeavor. The Association received the American Bar Association Award of Merit for its System service, an award easily understood and appreciated by all who have utilized any of the Systems. The challenges of the 1979-80 bar year are numerous and serious. There remain problems to be solved
in the areas of specialization, competency and discipline, and the Association has already taken steps to find solutions to these problems. Recent studies indicate that the public image of the lawyer is still less than what it ought to be, and this is an area that will no doubt receive special attention from the Association during the year. This bar year promises to be both busy and exciting. The addition of two persons to the Association staff promises to expand and intensify the performance of the Association in two areas. Kaye Oberlag has joined the staff as Publications Secretary and Billie Bates has been retained as Committee-Section Secretary. For years the Association has sought to augment its efforts in the areas of public and intemal information. And the need has been apparent for special staff responsibility for committee and section work, for most of the work of the Association is done by its committees and sections. It has been recognized the Association has been more fortunate in the effectiveness of its staff (the smallest in the country for an association of our size) than it has a right to be. As the House recognized, with obvious enthusiasm, at its last meeting, the Association has accomplished all that it has accomplished during the past year primarily because of its leadership. Under the presidency of Wayne Boyce the Association managed to complete projects which had been long in development and to deal effectively with new challenges which arose during the year. Whether speaking softly to guide (in areas such as the judicial poll) or wielding the big stick (in areas such as threatened FTC regulation) his industry and ability leave a record of accomplishment and a foundation for achievement in the future.
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October 19791Arkansas Lawyerl143
BAR OPPOSITION TO THE DEVITT COMMITTEE RECOMMENDATIONS by John A. Krsul, Jr.
(Editor's note: In response of criticism of lawyer incompetency by Chief Justice Warren E. Burger and certain other federal judges, the Judicial Conference of the United States appointed in 1976 a Commit路 tee to Consider Standards for Admission to Practice in the Federal Courts. The Committee is chaired by the Honorable Edward J. Devitt, Chief United States District Judge in St. Paul, Minnesota, and has come to be known as the Devitt Committee. Its report and tentative recommendations were presented to the Judicial Conference in September 1978, and disseminated for comment at that time. We are fortunate to have permission to reprint the article, "Bar Opposition to the Devitt Committee Recommendations", by John A. Krsul, Jr., which first appeared in the Detroit Lawyer, June 1979. Mr. Krsul is a partner in the Detroit law firm of Dickinson, Wright, McKean, Cudlip & Moon and is President-Elect of the Detroit Bar Association.)
Confronted by the recommendations of the Devitt Committee to create a federal overlay on the opportunities for lawyers to practice their profession in the federal courts, the organized bar has urged the Judicial Conference of the United States to proceed with caution on certain of those recommendations. 144/Arkansas LawyerlOctober 1979
I
\ The key recommendations of the Devitt Committee Report which have led to organized bar reaction contemplate separate standards and procedures for admission to practice in the federal courts. In particular, the Devitt Committee has recommended that admission to federal court practice be conditioned upon a lawyer's showing of minimum uniform standards of competency through the passing of a separate federal bar examination administered by a District Committee on Admission and through involvement by the lawyer in 4 trial experiences in actual or simulated trials. Moreover, the Devitt Committee has recommended that all Federal District Courts establish Performance Review Committees with authority to review cases of inadequate performance, to encourage improvement by the lawyers in question and to "recommend further action." The organized bar has spoken out almost unanimously against all or part of these key recommendations. The State Bar of Michigan and the American Bar Association, for example, have expressed serious reservations or opposition to the federal bar exam and trial experience requirement, but have supported the Performance Review Committee proposal in principie.' At the public hearings on the Devitt Committee recommendations in San Francisco on April 5-6, 1979, over 30 bar associations, including the State Bars of California, Colorado, Utah and Washington, appeared in opposition to the admission requirements and a mandatory peer review system.' Some bars, such as the Missouri Bar and the Atlanta'Bar
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Association, have directed their opposition only at the Performance Review Committee proposal. Not all of the Devitt Committee's recommendations have faced organized bar opposition. The proposals for a student practice rule for district courts, increased availability in law schools of student trial practice courses, promotion of C.L.E. courses in trial advocacy, district court sponsorship of federal trial practice programs and revisions in the Code of Professional Responsibility as it relates to trial advocacy have been supported almost unanimously by the bars that have considered these areas, including the American Bar Association. The distinguishing factor in these ncn-controversial recommendations is that they are to be voluntary, whereas the admissions requirements and the Performance Review Committee will be mandatory restraints on lawyers, if implemented. Source of Opposition The impetus for opposition to the proposed bar examination and trial experience requirement has come from young lawyers' organizations, principally the Young Lawyers Division of the American Bar Association (ABAjYLD). On December 6, 1978, the Federal Practice Committee of the ABAjYLD reported on its analysis of the Devitt Committee's recommendations. The ABAjYLD Report incl uded an incisive review of the Federal Judicial Center's study entitled, The Quality of Advocacy in the Federal Courts (FJC Study).' The ABAjYLD took the position that the FJC StUdy, which established the statistical and factual basis for the
Devitt Committee's recommendations, was unreliable and that the conclusions drawn by the Devitt Committee were not supported by the Federal Judicial Center data.' Those organizations which have opposed the Devitt Committee's recommendations have relied heavily on the ABA/YLD Report. In addition to young lawyers, opposition has also come, as might be expected, from law students who have expressed legitimate concern regarding both the proposed "grandpersoning" of present practitioners who would not be required to take the federal bar examination, and the effect of the proposed admission requirements on practitioners in nonmetropolitan areas.' Of course, the principal group disadvantaged by the proposed admissions requirements would be the small firm and sole practitioners who may have difficulty "second-chairing" actual trials in order to satisfy the proposed trial experience requirements, but questions have aiso been raised by spokespersons for minority lawyers. In an article in the April, 1979 issue of the ABA Journal entitled, "Devitt Committee Report: New Hurdles for Minority Lawyers," it is concluded that these admission requirements are "likely to affect adversely the opportunities of minority lawyers" and limit their access to federal courts.' It is submitted that these concerns should not be taken lightly and that the effect of the Devitt Committee's proposals on minority lawyers and the large number of small firm and nonmetropolitan practitioners must be taken into consideration by the Judicial Conference of the United States. Lawyer Incompetency Myth or Reality? The impetus for the work of the Devitt Committee came in the early 1970's as the result of criticism of lawyer competency by a number of federal judges, not the least of which was Chief Justice Warren E. Burger.' In his 1973 Sonnett Lecture, Chief Justice Burger accepted "as a working hypothesis that from V3 to V2 of the lawyers who appear in the serious cases are not really qualified to render fully adequate representation.'" Whatever the intent behind the limitation on lawyer inadequacy to "serious cases," the Chief Justice was viewed as indicting V3 to V2 of all trial advocates as inadequate. Probably the
single most persuasive reason for opposition by bar groups to the federal court admissions requirements is that the statistics do not bear out such an overstated rendition of the inadequacy theme. The FJC Study showed that in 1,969 trials actually rated by federal trial judges during a 4 week period in the spring of 1977, only 3.5% were rated "poor" or "very poor" and 5.1% were rated "not quite adequate," a total of 8.6%. The balance of the ratings were "adequate but not better," 16.7%; "good," 27.0%; "very good," 26.3%; and "first rate," 20.9%. (0.6% of the cases were not rated.)' It is submitted that any reasonable view of these statistics shows that at least 90.8% of all trial performances are adequate or better. Indeed, the FJC Study concluded that "On the whole, the ratings present a very favorable picture of the quality of advocacy in the district courts."" Despite the clear findings of the FJC Study on the small degree of lawyer inadequacy, the Devitt Committee report sought to balloon the 8.6% inadequacy figure by combining it with the 16.7% figure for "adequate but not better" performances and concluding "that 25% of the performances (by lawyers) were less than good."" Probably the only justification for including this statistical inflation in the report of a Judicial Conference Committee is that it lends minimal (albeit unreliable) credibility to the Chief Justice's claim that up to V2 of trial advocates in serious cases are not really qualified to render fully adequate representation." Nevertheless, a study by the American Bar Association supports the un inflated statistics on lawyer inadequacy. The American Bar Association conducted a survey in the fall of 1975 which resulted in a response from 1,422 state and federal court judges as to lawyer competency during the judge's most recent trials." The rating system was more clear-cut than that used in the FJC Study since judges were asked to rank lawyers in categories using "competent" or "incompetent" descriptions of trial performance. The conclusion was that 87% of alltrial advocates were ranked as "competent" and 13% as "incompetent."" Significantly, when judges ranked their most recent trials, the ratings showed a higher degree of competency (90%) than when the judges were asked to remember and rate
trials that had occurred during an earlier time period." This is not to say that the bar considers inadequacy in 8%, 10% or 13% of trial advocates as no problem. As ABA President S. Shepherd Tate has said in his statement to the Devitt Committee, " ... if there is one incompetent lawyer, that is one too many."" The issue, rather, is what should be done about it. Remedies for Lawyer Incompetence The organized bar is as yet unconvinced that a federal bar examination is the answer to lawyer incompetency. In this regard, the Devitt Committee has concluded that there is a need to test a lawyer's knowledge in 6 areas: Federal Jurisdiction, Federal Rules of Civil, Criminal and Appellate Procedure, the Code of Professional Responsibility and the Federal Rules of Evidence. However, after analysis of the supporting data found in the FJC Study, the ABA/YLD Report concluded that trial advocates do not have serious deficiencies in the 6 areas to be covered by a federal bar examination and that "there is no correlation between performance level and study of these subject areas."" Rather than finding lack of knowledge or inexperience as the key factor in inadequacy, both the FJC Study and the study by the American Bar Foundation pinpointed inadequate trial preparation as the most important cause of inadequate trial performance." Hence, it is reasonable to conclude that testing counsel through a separate bar examination would not be productive. As Judge Frankel has written: "there is ... not the slightest published evidence that more pencil-and-paper examinations will help predict court room performance. .. After all, with rare exceptions, the incumbent incompetents passed the same examinations as those by their acceptable colleagues."" The proposed trial experience rule is equally open to attack. The FJC Study showed that there is little or no correlation between previous trial experience, or lack of such experience, and inadequate trial performance. In this regard, the analysis of the FJC statistics in the ABA/YLD Report suggests that 75% of the performances rated inadequate were by lawyers who already had substantial trial experience in state courts." One of the more controversial asOctober 1979/Arkansas Lawyer/145
peets of the Devitt Committee's proposed trial experience requirement is the suggestion that a way be found for lawyers who have not had 4 trial experiences to practice in federal courts until the required experience is achieved. The solution found by the Devitt Committee was to create a bifurcated federal bar made up of lawyers qualified to do pre-trial work and those qualified to do trial work. A substantial minority of the Devitt Committee considered the "bar-trial bar" solution as unnecessarily complex and burdensome." It is submitted that this solution would be a practical and administrative nightmare which should be rejected by the Judicial Conference of the United States. As to Performance Review Committees, bar organizations have viewed with some concern the role to be assigned to such a committee. The ABA/YLD Report recommends that the proposal can be useful if standards of competency are devised, confidentiality is protected, the role of the committee in the disciplinary process is defined and lay members are excluded." Some organizations, such as the International Association of Insurance Counsel believe that the Performance Review Committee proposal should be defeated because of possible intrusion into the iawyerclient relationship and a candid "fear [of] the results of federal judicial power on the practice of law. ">3 Clearly, the bar's concern necessitates further consideration of a mandatory peer review system before it is implemented. The base line with regard to each of these proposed remedies is whether they will be effective tools for the correction of the alleged deficiencies. The fact is, as noted above, that inadequate trial preparation, not lack of knowledge or experience, is the chief cause of lawyer inadequacy. Federal bar examinations and trial experience requirements are not the proper remedies to correct the existing wrongs." A Washington State Bar Association study has suggested that the better method of correcting lawyer inadequacy is in-chambers critique by the trial judge." Weyman I. Lundquist, Chairperson of the ABA's litigation Section, has also suggested that the burden of identifying inadequate lawyers is more properly put on the trial judge. According to Lundquist, the best medicine for inadequacy would be 146/Arkansas Lawyer/OCtober 1979
for federal judges to comment strongly on specific inadequate performances before them. He said that one or two strong reprimands in the district in which they practice would be sufficient to get the message to trial lawyers that inadequate practice will not be tolerated." Voluntary or Mandatory? The organized bar has not played an obstructionist role in its opposition to the Devitt Committee's proposals. Improved trial advocacy is as importantto the bar as it is to the benchbut the bar sees little value in creating a federal bureaucratic structure to carry out by mandate ill-defined goals premised on faUlty evidence. Judge Donald P. Lay of the Eighth Circuit has put it well in his statement to the Devitt Committee in opposition to the proposed admission requirements: "Don't bureaucratize our federal courts or our federal process any more than it already is. Don't make our lives more complex as lawyers and judges ... Don't force [admission requirements] upon the bar. Stimulate the bar but don't stifle the independence and the individuality of the trial practitioner."" The Judiciai Conference of the United States should recognize the substantial controversy generated within the bar by the recommendations of the Devitt Committee and allow time for further study of the proposed admission requirements and Performance Review Committees. To do so would acknowledge that the administration of justice is and has been a partnership between the bench and the bar which must be promoted in a cooperative spirit. If the Devitt Committee's recommendations are implemented at a time when the bar has expressed sincere and sound reservations about those recommendations and has urged further study, it bodes ill for the administration of justice in the federal courts........ FOOTNOTES 1. Action of the Board Commissioners of the State Bar of Michigan on March 30, 1979; Action of the Board of Governors of the American Bar Association at its meeting on April 5-7, 1979
2. Chilly Reception in San Francisco, 65 A.B.A.J. 716 (May 1979) 3. A Partridge, and G. Bermant, The Quality of Advocacy In the Federal Courts (Federal Judicial Center FJC路R路78-1) (hereinafter "FJC Study")
4. ABNYLD Report, pp 2路3 5. See, e.g., Devitt Committee Report: New Hurdles for Minority Lawyers, 65 A.B.A.J. 561 (April 1979) 7. Burger, The Special Skills of Advocacy, 42 Fordham L. Rev. 227 (1973); Bazelon, The Defective Assistance of Counsel, 42 U. Cin. L. Rev. 1 (1973); Kaufman, The Court Needs a Friend In Court, 60 A.B.A.J, 175 (February 1974) See also, Devitt, Improving Federal Trial Advocacy, 72 F,R.D. 471 (1977) 60 Judicature 491 (May 1977), 16 Judges Journal 40 (Spring 1977); and Devitt, Improving Federal Trial Advocacy-II, 76 F.R.D. 251 (1978) 8. Burger, The Special Skills of Advocacy, 42 Fordham L. Rev. 227, 234 (1973)
9. FJC Study, p. 13 10. Ibid. 11. Devitt Committee Report, p. 7 12. The Devitt Committee also chose to focus on the negative side of statistics where that view supported its position. In this regard, a question was posed to judges as to whether there was "overall, a serious problem of inadequate trial advocacy in your court." Although 58.7% of the responding judges answered "no," the Devitt Committee chose to look instead at the fact that 41.3% answered "yes" and concluded that such statistics make "a strong case ... for. .. recommending responsive studies." Devitt Committee Report, p. 12 13. Maddi, Trial Advocacy Competence: The Judicial Perspective, American Bar Foundation Research Journal, Vol. 1978 (Winter No.1, p. 105 (hereinafter, "AFB Study")
14. Id. at 118 15. !d, 16. Statement of S. Shepherd Tate, President of the American Bar Association before the Devitt Committee, April 26, 1979, p. 4
17. ABY/YLD Report, p. 12 18. FJC Study at 147, Table 29,148, Table 30. ABF StUdy, p. 124, Table 8 19. Frankel, Curing Lawyers' Incompetence: Prlmum Non Nocere, 10 Creighton L. Rev. 613, 626 (1977)
20. ABA/YLD Report, p. 14 21. What You Need to Know About the Proposed Federal Practice Rule, 65 A.B.A.J. 60, 63 (January 1979)
22. ABNYLD Report, pp 17-18 23. Statement by Robert E. Leake, Jr., President of the International Association of Insurance Counsel to the Devitt Committee, March 22, 1979, PP 2-3 24. See e.g., Otorowski, Some Fundamental Problems with the Devitt Committee Report, 65 A.B.A.J. 713, 715-717 (May 1979)
25. Id. at 717 26. Litigation News, Vol. 4, No.3, April 1979, pp 3, 6 27. Statement by the Han. Donald P. Lay to the Devitt Committee, p. 18
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JURIS DICTUM by C. R. Huie
Executive Secretary, Judicial Department
Continuing Judicial Education or Alice In Wonderland "And thick and fast they came at last And more and more and more." Lewis Carroll-"Through the Looking G/ass" Developments in the system of jurisprudence during the past decade have come with such rapidity and regularity that the modern judicial officer and attorney are hard pressed to stay abreast of current case law, statutory changes, and new rules of procedure, not to mention the rising flood of litigation which threatens to engulf even the most dedicated and energetic jUdge and the most assiduous and diligent attorney. To equip present day judges and attorneys to meet this challenge in some degree, continuing judicial education for the judge and continuing legal education for the attorney is a must for those conscientious enough to desire the highest and best professional approach to the problems. THE BAR The Arkansas Bar Association together with the law schools at Fayetteville and Little Rock have in recent years sponsored the formation of the Arkansas Institute for Continuing Legal Education. A non-profit corporation governed by a Board consisting of the deans of the two law schools and members of the Arkansas Bar, the Institute under the direction of Claibourne W. Patty, Jr. conducts seminars which are open to Arkansas lawyers and members of the judiciary on a wide-ranging number of subjects with emphasis placed on the more important recent developments in the field of jurisprudence. For instance, the mid-year meeting held January 18-19 at which pleading, practice, and procedure under the new Arkansas rules promulgated by the Arkan-
148/Arkansas Lawyer/October 1979
sas Supreme Court were thoroughly covered, was attended by over 700 Arkansas lawyers and judges. This seminar, and others like it, provide the practicing attorney the opportunity to obtain the tools and knowledge so necessary for the advancement of his professional career. Obviously those who do not take advantage of these opportunities will find themselves remaining in Wonderland. THE JUDICIARY "Judges don't need any more education" was a remark often heard as late as 1965 when I first took office as Administrative Director under the Chief Justice of the Arkansas Supreme Court. Nothing could be further from the truth. In this connection it is appropriate to quote an article by Jim Wooten which appeared in the Atlanta Journal on February 26, 1979: THE PLEASURES OF RENO "There's a rule of thumb about speakers and trips: 50 miles from home the speaker is an expert and the trip is a junket. "If the seminar, school or conference is held in an area associated with pleasure or sin, depending on your perspective, participants are presumed guilty of indulgence. "The National Judicial College is at the University of Nevada. The university is in Reno. Gamblers are in Reno. Prostitutes are in Reno. "Many Georgia legislators don't want judges going to Reno. Their opposition suggests they know more about temptation than they know about the school in Reno. Cheer up, my brother, there's sunshine in Reno.
"The school is in Reno because a foundation contributed the money to build it in Reno. Before that, it traveled from campus to campus. Faculty members are judges from all over the country. "In some states, it is mandatory that new judges attend the four week course; in others they are strongly encouraged to go. Georgia lets judges go if they want to. "Far from being a boondoggle, it is a course I think vital to new judges at all levels. "And instead of debating whether judges are allowed to attend, the General Assembly ought to be considering legislation to make attendance mandatory. It should be a must, at the very least for new jUdges. "There is a distinct difference between being a lawyer and being a judge. Lawyers don't instruct juries. They do not bear the burden of a fair trial. They do not sentence. They do not rule on evidence. On and on the list goes. "It is fallacious to assume good lawyers will be good judges, and it is equally fallacious to believe good judges assume the bench with skills, knowledge and temperament necessary to render sound decisions. They are the product of training-and it is absolutely essential that training continue. "Judges are so well insulated from public view that few know whether they are competent to perform their duties. Many of them, in fact, are not. "And once elected or appointed, they are able to serve, with rare exception, until they die or elect to leave (continued on page 153)
LEGAL ECONOMICS by Fran Shellenberger Information Systems Support Analyst
The firm of Waring, Cox, Sklar, Allen, Chafetz & Watson of Memphis, Tennessee, one of the country's oldest continuing law firms, has installed a word processing center for its 16 lawyers and has successfully combined its time and charges billing on the same equipment used for word processing in the center. At the same time the firm has retained individuai text-editing typewriters in its litigation and tax departments. These automatic typewriters and every other typewriter in the firm are compatible with the firm's centralized word processing equipment through the use of optical character recognition equipment (OCR) in the word processing center. The firm's unique configuration of equipment and procedures and their success in centralizing word processing deserve a closer look. Waring Cox's history with word processing equipment began with two IBM MTST's, then changed to one Magcard I and one Magcard II. These were later replaced by three IBM Magcard A's; an IBM Office System 6 was added for the firm's lengthy documents and time and charges billing. Upon expanding the firm in June, 1978, the firm decided to create a word processing center instead of installing more automatic typewriters to support its five new lawyers. The word processing center is equipped with three CPT 8000's and one Hendrix Typereader (optical character recognition machine). Additionally, the three Magcard A's were retained outside the word processing center; one supports the litigation department, one is in the tax department, and the third is shared by five secretaries. The Magcard A's are used by department secretaries for documents up to five pages in length which will be typed, revised and mailed the same day. Lengthier documents are typed on the Magcard A's or Correcting Selectrics and routed to the word processing center for editing and final typing on the CPT 8000. The center's operators do no draft typing. Instead, draft typing is prepared by department secretaries who are familiar with the lawyer's dictation, terminology and client information. These secretaries use OCR fonts which type machine readable characters. The typewritten pages are
routed to the word processing center and stacked in the Hendrix Typereader which "reads" them onto the CPT 8000s. (At Waring Cox the CPT 8000s and Hendrix Typereader are supporting nine Correcting Selectrics at a cost of $50 per desk.) A word processing operator performs editing as noted on the hard copy and returns new copy to the author. Because draft typing is prepared outside the word processing center, the firm has retained the value received from having the lawyer's secretary do her boss's work; at the same time the cost and number of word processing systems has been reduced. (The uses :mu benefits of OCR equipment have been discussed in detail by the author in "There's an OCR in Your Future," THE ARKANSAS LAWYER, Arkansas Bar Association, Little Rock, Arkansas, October, 1978, and "OCR-A New Way With Words," LEGAL ECONOMICS, American Bar Association, Section of Economics of Law P, 路路,ctice, May-June, 1979.) The 8000s are used 100% of the time for text editing, creating documents from pre-recorded forms, and billing, resulting in improved utilization of the equipment. It is not unusual to have documents as long as 90 pages typed by department secretaries and edited five or six times in the word processing center. These 90-page documents were a primary factor in selecting the CPT 8000 for the word processing center. A 90-page document can be printing from an 8-inch floppy disk in one of the 8000's two disk drives, leaving the second disk drive available for text-editing and billing entries. Smaller disks or single-drive word processors could not handle this volume. The firm's Wills and Agreements are set up as stored paragraphs which are prepared in final form by the word processing center. Lengthy rush jobs may be split up among the firm's nine secretaries using Correcting Selectrics. Text is read through the OCR and onto the 8000 as it is finished, then edited and printed in final form. A recent project of the center was a set of five documents, each about 40 pages long, which underwent five revisions. Two weeks later three of the documents were merged into one. October 1979/Arkansas Lawyer/149
The firm's corporate paralegal uses the word processing center to prepare documents from standard pre-recorded forms. The clerks also receive typing support from the firm's secretaries or from the center, depending on the nature of the work. In selecting equipment for the word processing center, the firm chose a system which could record time and charges, retrieve them by client, and print client bills. The firm did not want to use an outside computer service because of the two or three-day turnaround time associated with an outside service; they liked the idea of in-house billing because they could include billing on the same equipment used for word processing and because they wanted to be able to bill any client at any time. All attorneys dictate time and charges to a Lanier Action Line which is dedicated to billing; they may also write a time sheet. The word processing operators type time and charges entries onto the CPT 8000 each day. Expenses (all those which do not require a check, such as mileage, telephone and photocopy charges) are also entered on the CPT 8000. A printout of the entries for any client is prepared upon request and routed to the office manager for summary. The printout and summary sheel are routed to the attorney for editing and setting the final fee. The final bill is printed on billing letterhead; copies and summary sheets are routed to the bookkeeper for her records. The center's success is keyed to the hiring of experienced word processing operators to staff the center. These operators need not be legal secretaries since draft typing is created outside the center. Accordingly, no legal secretary was asked to leave her department to work in the word processing center; no lawyer was asked to allow his secretary to transfer to word processing. The firm's legal secretaries universally appreciate the support they receive from the word processing center via OCR; they realize that they are freed from heavy typing jobs so that they can concentrate on other areas of their work. In some cases the secretaries have learned to operate the word processing equipment so that they can pinch hit when necessary. Lawyers who were skeptical of centralized word processing and OCR have been reassured by the appearance of final copy and by the fast turnaround time for finished work. usually the same day. By providing OCR equipment in the word processing center, Waring Cox has succeeded in overcoming a major stumbling block to the installation of centralized word processing in law offices-that of disrupting the traditional lawyer-legal secretary working relationship. At the same time, the elimination of draft typing from the center has improved the utilization of the center's equipment, allowing it to be used for its most valuable features, that of editing and revising text and providing high-speed error-free printing. By selecting equipment offering sorting and selection of files, (features usually associated with data processing equipment), Waring Cox has streamlined its client billing. The firm enjoys the best of two worlds in the production of legal documents and client billing; its word processing center has been accepted as a member of the team by lawyers and legai secretaries alike. The center's efficiency, productivity and acceptance by the firm should encourage other firms to consider centralized word processing." 150/Arkansas Lawyer/October 1979 --..
NEW SCHOLARSHIP FUNDS The Judge John E. Miller Scholarship fund has been established with the Arkansas Bar Foundation by various individuals and law firms in the Fort Smith area in an amount over $5,000. The income therefrom will be used to fund annual scholarships at the Law School, University of Arkansas, Fayetteville. The Law School catalog will carry appropriate credits for the scholarships. The desired criteria for these scholarships are as follows: (1) The recipient be a resident of a community situated within the Western District of the United States District Court. (2) The scholarship be awarded to a student enrolled at the University of Arkansas Law School at Fayetteville, Arkansas. (3) The recipient have completed at least one semester of law school prior to his or her application for this scholarship. (4) The scholarship be awarded upon either academic achievement and/or financial need. The Foundation presented to Judge Miller a plaque and parchment certificate in recognition of the permanent scholarship fund in his honor. Judge Miller responded in a telephone call to the Foundation's Executive Secretary C. E. Ransick that he deepiy appreciated this effort of his friends in Fort Smith. Additional contributions to the JUdge John E. Miller Scholarship Fund may be made at any time to the Arkansas Bar Foundation. The contributions are tax-exempt and none of the contributions or related income is ever used for operating expenses. Probably, no other foundation in the Country can make such a statement of policy. ####
While the Sebastian County Bar Association was only indirectly responsible for the creation of the Judge John E. Miller Scholarship Fund, the Association has started the funding of its own Scholarship Fund with the Arkansas Bar Foundation with an initial contribution of nearly $1,000. The goal is $5,000, which will establish a permanent scholarship fund in the name of the Sebastian County Bar Association. ####
Lawyers and Local Bar Associations in other areas of Arkansas may be interested as to the creation and funding of the above Scholarship Funds. President Bill E. Wiggins of the Sebastian County Bar Association or Chairman Douglas O. Smith of the Foundation's Memorials and Scholarships Committee, both of Fort Smith, may be contacted directly for the details.
THE DEVELOPMENT OF THE LAW OF GAMBLING: ARKANSAS
III.
The Modern Era: 1900 to date
~20 Until World War II, the bulk of Arkansas' population remained in rural areas. Migration into the state continued to be minimal, and English, Scotch-Irish and Black families represented the vast majority of Arkansas' people. The economy of the state continued to lag behind the rest of the South, and the Great Depression took a heavy toll of hardship in the state. Still, throughout these hard times, the Democratic party and a generally conservative ideology dominated Arkansas politics. Changes in the gambling law were enacted to ease state fiscal difficulties, but the general anti-gambling thrust was not altered significantly.
A. Early Prohibitions and Enforcement Efforts ~21 In the early years of the twentieth century, the legislature grappled with lawlessness and problems of law enforcement throughout the state. An important element in this battle was a two-decade attempt to suppress gambling and to sternly punish professional gamblers. In 1901, the legislature raised the fine for setting up, keeping, or exhibiting a gambling device from five hundred to one thousand dollars." Those who owned
or controlled buildings leased for gambling purposes, or where gambling took place with that person's permission, drew the same fines. Corporate owners were included among those liable for such offenses." ~22 The 1901 act also recognized that measures to insure good enforcement of the laws were required. While prior legislation offered monetary incentives to spur enforcement, the new law threatened criminal sanction for those who neglected their duty. A prosecuting attorney, city attorney or mayor who refused to cause the arrest of an alleged gambling violator could be fined from five hundred to one thousand dollars." Further, if any of the officials accepted money from those involved in gambling to insure immunity from the risk of conviction, he could be fined from one thousand to five thousand dollars." In fact, the act even established a presumption of law that any gambling table or gambling device found or operated in any city or town of the state was operated with the knowledge of the mayor of that city or town." In an appeal to civilian enforcement, the act authorized any citizen to file information against an alleged offender as well."
B. Gambling Devices The courts aided in the attack on gambling through judicial interpre~23
(Editor's Note: The first segment of the 1976 Report by the Commission on the Review of the National Policy Toward Gambling as it pertains to gambling in Arkansas was published in the July 1979 issue of The Arkansas Lawyer. The second section is printed here. The final part will be published in the next issue. Footnotes are being published with each coverage.)
tation of the term "gambling device." In State v. Sanders,44 the state Supreme Court held that a pooi table was an unlawful gambling device, which could be destroyed in accordance with the "burning statute." The court stated that only instrumentalities which were designed exclusively for gambling could be summarily destroyed as being illegal per se. However, devices which were " ...not necessarily intended solely for gambling purposes"" could also be destroyed as unlawful if it were proven that they were actually used in gambling activities. ~24
The so-called "burning statute" made it a nuisance to operate pUblicly an instrumentality made solely for the purpose of gambling. It authorized the abatement of the nuisance by the destruction of the device. The Arkansas Supreme Court denied that this statute constituted a deprivation of property without due process of law in October 1979/Arkansas Lawyer/151
Garland Novelty Co. v. Stark." The court observed: While the legislature would have no right to
authorize the summary destruction of a house to prevent gaming or to prevent the illegal sale of liquor therein, it being unreasonable, oppressive, and unnecessary to resort to such measures for the prevention of crime, yet, if the nuisance be one that can
be well abated in no other way, even the destruction of property so valuable as a house may be justified, as where its des-
immediate preservation of pUblic peace, health, and safety."" Violation of this provision was no longer to be a mere misdemeanor, but a felony. Anyone who kept, operated, or was interested in keeping or operating a gambling house was, upon conviction, to be confined in prison for one to three years." The core of the offense was maintaining a place where gamblers could find shelter.
derations of public morals to hold that "...racing, whether by men, horses, dogs, or other animals, or by animals of one kind against those of another, is a game, and one who bets on such a race offends against the statute prohibiting betting on games."" Moreover, the court found a house maintained for taking bets or wagers to be a criminal nuisance."
truction is necessary to prevent the spread of fire or disease. ~25
In time, the court further broadened the definition of "gambling device" to reach seemingly innocuous conduct. In 1930, the court found a machine which gave a package of mints and a varying number of extra game slugs in return for a nickel to be an illegal gambling device." All that was necessary for a device to be considered iliegal was the possibility that one could lose money or property playing it through the auspices of chance. Justice Butler found the baseball pinball machine involved to be such a device, stating: The machine under consideration is attractive to children, and the fact that they may sometimes secure the right to play an attractive game-(by chance)...-induces them to spend their nickels, not for the mints, but for the possibility of the game, and is gambling within the meaning of our statute....
~26 Later decisions of the court found such pinball machines, or "slot machines," to be gambling devices per se." And, as Sheriff J. D. Mays of Phillips County learned in 1926, a sheriff could be suspended from office and indicted for knowingly failing to arrest exhibitors of illegal gambling devices because such slot machines were operated in his jurisdiction. '"
C. Gaming Houses '127 Apparently, the laws forbidding the exhibiting, setting up or keeping of gambling devices did not suppress gambling to the satisfaction of the legislature. For in 1913, it enacted an "emergency" measure, which it declared to be "...necessary for the 152/Arkansas Lawyer/October 1979
E.
D.
Animal Racing and Betting ~28 The early 1900's witnessed the enactment of a criminal sanction to reach betting on the outcome of a horse race. In 1907, all such betting, direct or indirect, by the selling or buying of pools or otherwise, was declared illegal, .3 whether the race took place in or out of the state." The first offender drew a twenty-five dollar fine and the two-time violator a twenty-five to one hundred dollar exaction." A third offense could bring a five hundred dollar fine and a prison term from thirty days to six months." Every bet, wager, and sale or purchase of pools was declared a separate offense." In addition, any sheriff, constable, or policeman who refused or neglected to arrest a violator and bring him to trial directly upon discovery of the offense could be convicted of nonfeasance in office, fined up to five hundred dollars, and removed from office." ~29
In the leading case of Fox v. Harrison," an action was brought by the operator of a dog racing tract to restrain the law enforcement officials of Crittendon County from interfering with his business. The track operator alleged that he had spent $150,000 in preparation for the conduct of races and that thousands of people deserved to attend. He contended that the act of 1907 was aimed at horse racing rather than dog racing, and, moreover, that since dog racing was not specifically mentioned, it should be found to be a sport rather than a game of chance. The court denied both allegations and dismissed the complaint as being without equity.'" The court felt constrained by consi-
Futures Contracts and Bucket Shops ~30 Early cases held that contracts for the apparent sale of commodities were unenforceable gaming ventures when the parties involved had no intention of delivering and accepting goods but rather were simply betting on the rise and fall of commodity market prices." However, to protect innocent brokers, the undisclosed gambling intentions of two parties using the broker's services was not enough to invalidate the broker's contracts with those customers. 54 ~31 In an attempt to clarify the situation, the legislature passed an act in 1929. The act prohibited bucket shops and futures gambling in stocks, cotton, grain and other commodities, and declared under what circumstances dealings in futures would be legal in Arkansas." The purpose of the act was to ensure that all contracts of sale for the future delivery of commodities would be made by a process of free exchange between parties in accordance with the rules of a newly established Board of Trade and the provisions of the United States Cotton Futures Act of 1916." Only transactions so regUlated, and made on the floor of a recognized public exchange, would be enforced in Arkansas courts. Those made elsewhere were declared null and void. 67 ~32
The 1929 act, however, was more than a clarification of judicial interpretation. It involved a strong reaction to the commodity market crashes of the times, establishing criminal sanctions for gambling in futures. Anyone who knowingly entered
into or assisted in making bucket shop contracts could be convicted of a felony, fined up to one thousand dollars and imprisoned for up to two years." Corporations that executed such contracts could lose their charters of incorporation." The fact that before 1929 such offenders were already arguably criminally liable for such activity under the general wagering laws underscores the seriousness with which the legislature viewed such activity. ~
FOOTNOTES
no. 67.
§ 1 (1901)
39. !d. § 2.
40. !d.
(1904). 47. Ranken v. Mills Novelty Co., 182 Ark. 561.32 S.W.2d 161 (1930).
48. !d. at 563. 32 S.W.2d at 162. 49.
(TO BE CONCLUDED)
38. Act of Mard127, 1901, Arlc. Acts 114-16.
44. State v. Sanders, 86 Ark. 353, 111 S.W. 454 (1908). In Albrl9ht v. Karslon, 209 Ark. 348, 190 S.w. 2d 433 (1 945) the court refused to extend Sanders so as to alk>w the state to retain money seized during a gam~ing raid. relying on the absence of express statutory authority for such a seizure and retention. 45. !d. at 356, S.w. at 455. 46. Garland Novetty Co. v. Stark, 71 Ark. 13, 141. 71 S.w. 257. 258 (1902). Garland was reaffirmed unanimousty in Furth Y. Slale, 72 Ark. 166. 78 S.W. 759, 760
3.
41. Id. § 4. 42. Id. § 6.
43. Id. § 5. This entire act, however, seems to have little remaining bite. No known case construed the statute. It was omitted from the new Arkansas Code of 1947.
Juris Dictum (continued from page 148) the bench. Their courtrooms are autonomous fiefdoms. "In the short run, the public is not going to change that. The public is not going to make them better. Lawyers are not going to make them better, because lawyers cannot risk alienating them. "The only way to improve the quality of judges for now is through peergroup pressure, to expose them to the ideas of other judges. That occurs at the National Judicial College. "The time to get them interested in continuing their judicial education, because nobody makes judges do anything, is when they first ascend to the bench. When they are eager to learn, training should be provided. Judging should not be a pursuit learned totally on the job. "It is more in our interest than theirs that judges continue their education, because there's no good way to get rid of the bad ones. Our only hope is to take the lot we've got and provide them the opportunity for improvement. "Send them all to Reno. And send them back, and if it's a "blank check" taxpayers have given them, as Rep-
see Stanley v. State, 194 Ark. 483, 107 S.w.2d 532 (1937). See also Sleed v. Slate, 189 Ark. 389, 72 S.w.2d 542, 543 (1934).
SO. Mays v. Robertson, 172 Ark. 279, 288 S.W. 382 (1926). 51. Act of March 11, 1913, no. 152, § 1-3 (1913) Ark. Acts 613-15 (codified in Ark. Stat. Ann. II 41-2001 to ·2002 [1964]). 52. Id.
I 1.
53. Act of February 27, 1907, no. 55, II 1·5 (1907) Ark. Acts 134-35 (codified in Ark. Stat. Ann. I 41·2030 to -203311964]). 54. Id. § 1.
resentative Billy McKinney says, then glory be, sign it and send them off to Reno." Arkansas "CJE" A majority of Arkansas trial judges have attended the National College of the Judiciary in Reno or seminars conducted by the American Academy of Judicial Education held in various cities including Richmond, Virginia and Denver, Coiorado. Some Arkansas judges have acted as faculty members and advisers for these sessions. Arrangements for attendance are made through the office of the Executive Secretary of the Judicial Department. Schools for appellate judges are conducted by New York University each summer and all Arkansas Justices with the exception of two have thus far attended. Of the two remaining Justices one will attend this year and the other next summer so that all members of the highest court will have attended by the end of next year. Funding for continuing education for Arkansas judges and court personnel administered by the Judicial Department has been supported largely by the federal government through grants awarded by the Arkansas Crime Commission for both
55. Id. I 2. 56. Id. § 2. 57. Id. § 2. 58. !d. § 4. 59. Fox v. Harrison, 178 Ark. 1189. 13 S.W.2d 808 (1929). 60. Id. at 1194, 13 S.w.2d at 809. 61. Id. at 1192,13 S.w.2d at 809. 62. Id. at 1192-93, 13 S.W.2d at 809. The court relied here on the common law to find the keeping of a gambling house a criminal nuisance. This statement however was dicta. 63. Phelps v. Holdeness, 56 Ark. 300. 19 S,W. 921 (1892). Phelps lost much of its sting, at least for those dealing through a commodity exchange, in Johnston v. Miller, 67 Ark. 181. 53 S.w. 1052 (1899), when the court held that, where the rules of a futures exchange expressly provided for delivery of the commodity the rules would be evidence that a "good faith" contract and not a gambling transaction was contemplated by the parties. 64. Browne v. Thorn, 260 U.S. 137 (1922). 5eealso Mulllnlxv. Hubbard, 6 F. 2d 109 (1925). 65. Act of March 27. 1929, no. 208, II 1-12 (1929) Ark. Acts 1024-30 (codified in Ark. Stat. Ann. I 68-1001 to -100911957]). 66. Id. I 2. 67. !d. § 4. 68. !d. § 7. 69. Id. I 7. I
in-state and out-of-state schools and seminars. Expenditures have been on the average of $60,578 per year since July of 1975, which totals as of this date, $242,311. Of this amount the average payment by the State of Arkansas has been $6,058 (10%) and the federal government $54,520 (90%). OUT-OF-STATE
For out-of-state education since 1975 a total of $149,645 has been expended. Of this amount 10 percent has been provided by the state and 90 percent by the federal government. 24 percent or $57,254 has been provided for continuing education for circuit judges, chancellors, and justices. 13 percent or $31,342 has been awarded municipal judges and clerks. 10 percent or $24,776 has provided continuing education for circuit clerks and their deputies. Case coordinators have been provided with 2 percent or $5,215. The balance of 13 percent or $31 ,058 has been utilized by Judicial Department staff, court reporters, law clerks, and trial court administrators. Thus, 62 percent of the total expended has been for out-of-state education. (continued on page 157) October
1979/Arkansas Lawyer/l53
CONTEXT By W. Christopher Barrier
STRESS AND THE LAWYER Some months ago, the Association scheduled a conference on dealing with stress. Ironically, the conference had to be cancelled, apparently because too many lawyers felt that they could not take the time to come. In other words, those most in need of the conference were those lawyers least likely to allend.
But stress has gollen lots of allention in the last few years, primarily due to its apparent relationship to physical health. In their 1974 book, Drs. Meyer Friedman and Ray H. Rosenman identified certain behavior patterns and related them to heart disease. (Type A Behavior and Your Hearl, New York, Alfred A. Knopf). Stressful Occupations ... On a broader range, the National Institute of Occupational Safety and Health studied hospital and death records to determine which occupations had the highest incidence of heart attacks, ulcers, arthritis, mental illness and other stress-related illnesses. The NIOSH study (summarized in the June 19, 1979, issue of Parade Magazine) analyzed 130 jobs, and listed the 12 most stressful and least stressful occupations. According to NIOSH, practicing law falls in neither category-although it is well for us to keep in mind that the occupation of secretary ended up near the top of NIOSH's "most stressful" list. Whether it is at the top or not, all of us would agree that practicing law for a living is stressful. Why? In the same Parade article, Dr. Hans Selye, a biologist who has long studied stress and its effects on the human body, identifies three factors that determine the amount of stress in an individual's life: success, satisfaction, and control. Success v. Failure ... According to Dr. 5elye, success has "an anti-stress effect," at least partially due to the sense of well-being engendered by achievement. However, for most lawyers, success versus failure is not a permanent situation, such as achieving a certain position with a company, a certain number of patients, etc. lt is a mailer of success versus failure every time you enter a court room, and if you don't find losing a lawsuit stressful, you had beller get into another line of work. In any event, 154/Arkansas Lawyer/October 1979
success as an "anti-stress" device may simply not be readily available, even to "successful" lawyers. Job Satisfaction... Having to constantly repeat your successes also may have some effect on job satisfaction. Dr. James House, a psychologist at the University of Michigan, has found that the reason for choosing particular professions may affect the health of the persons within them. For example, some occupations are chosen generally because of their intrinsic satisfaction-teaching, the ministry, scientific research. However, the decision to become a lawyer may involve other factors besides intrinsic job satisfaction, (at least in part because very few entering law students know what lawyers actually do). People may allend law school so that they will have more control over where they live and work, because it is a respected profession, or because they do not wish to be part of a large corporate organization. However, these reasons are only indirectly related to what lawyers do, and may not result in an optimum level of job satisfaction. The Control Factor ... Dr. Robert Butler, director of the National Institute on Aging, suggests that persons with "a sense of mastery and predictability over their lives" are apt to live longer. Lawyers are subject to the will and demands of clients, judges, and juries. They may have lillie control over their own calendar, and constantly find themselves doing things because someone else wants them done. Consequently, stress is built-in to a lawyer's life (as it is everyone's life to some extent). According to Dr. Selye, stress "is the response of the body to any demand placed upon it." Lawyers simply get a lot of demands on a constant basis and they are going to react physically to them. The aim should be then to deal reatlstically with stress, rather than trying to avoid it. (Several of the more recent works on the stages of adult life, a topic also in vogue, suggest mid-life career changes. While such a change may be the only way to deal with certain types of stress, it does not appear to be a realistic option for most people with spouses, children, mortgages, et cetera.)
Four Suggestions ... The Parade article does suggest four approaches for dealing realistically with stress, some of which may seem elementary, but which apparently don't get much attention from most of us: 1. General Fitness: Few constitutions are rugged enough to withstand repeated overdoses of food, alcohol and tobacco. Additionally, studies indicate that vigorous exercise on a regular basis is also essential to genuine good health. Sid McMath walked to work as governor, and now regularly swims distances lawyers half his age would find eXhausting. Judge Tom Eisele runs daily and the Arkansas Bar boasts at least a few marathon runners, like Terry Mathews. All insist that the time devoted to these pursuits increases their productivity far out of proportion to the time expended. 2. Family Life: Michael Smith of NIOSH suggests that a strong marital and family life may help deal with a lack of satisfaction on the job. However, the relationship of family life, stress, and job success and satisfaction may be less clear among lawyers-statistics from several years back indicated that the divorce rate among trial lawyers was among the highest for any professional group. Perhaps the lesson here is that a stressful occupation and a stressful home life cannot co-exist-<>ne is going to give. 3. Diverse Interests: You have got to be able to get away from your work at least part of the day, which can be accomplished in some surprising ways. I know of one labor lawyer who spends a great deal of time travell ing to trials and administrative hearings. An accomplished photographer, he takes his camera with him, and leaves time in his schedule to photograph interesting subjects as they appear in his travels.
4. Control What You Can: According to Drs. Friedman and Rosenman, a type A person is one who is "aggressively involved in a chronic, incessant struggle to achieve more and more in less and less time, and, if required to do so, against the opposing efforts of other things or other persons." Such a person, the doctors explain, fails "to perceive, or perhaps worse, to accept the simple fact that a man's time can be exhausted by his activities. As a consequence, he never ceases to 'stuff' more and more events in his constantly shrinking reserve of time." A simple realization that only so much can be accomplished in a given day or week may not only relieve stress but result in at least as much being accomplished, if not more. Anyone who recognizes within themselves at least some type A tendencies may well need to take stock of the way in which they use their time. A good starting place may be reading a work on time management. One of the best and shortest is Edwin C. Bliss' Getting Things Done, Charles Scribner's Sons (New York: 1976). Bliss touches on a number of techniques which may be helpful in relieving the stress induced by trying to do too many things. (At this point let me differentiate between doing too many things and getting things done-you rarely can decide nolto try a lawsuit, draft a will, research a brief, etc. The point is to get them done without your having to do all of it.) Don't do it yourself... Consider the number of things which you do each day which could be done by someone other than a lawyer, starting with your secretary, receptionist, office manager, bookkeeper, etc. In this area, good dictating and word processing equipment may be useful and not just to the urban lawyer-the first effective user of word processing I ever observed practiced in Osceola. Analyze your practice for cost effectiveness. In other words, determine if some items of work take a great deal more time than their dollar return justifies. My observation is that it is difficult to avoid rushing yourself through these kinds of tasks. Try to decide whether you ought to be doing them at all, even if it means giving up some clients. Just keeping up..â&#x20AC;˘Also, look at the amount of time it takes you to keep up in a number of different areas. If there is more than one lawyer in your office, perhaps all of them don't need to read the latest OSHA regulations. If you are a one-person office, recognize the natural limits on the number of areas in which you can be an expert. Future shock, future stress... According fo a BNA publication entitled "Future Law: Lawyers Confront the 21 st Century", we are in the midst of revolutionary changes in our system for the delivery of legal services-legal aid, prepaid legal services, computerized research, national law firms, legal clinics. Some sources quoted by BNA even forsee legal offices patterned after H & R Block. As lawyers, we are going to be subject increasingly to changes and stresses over which we have no control, in addition to the stresses inherent in our own profession. We owe it to our clients to adapt to those changes and still deliver high quality legal services. We owe it to ourselves to do it without sacrificing our physical and mental health.
~ October 1979/Arkansas Lawyer/155
AICLE NEWS by Claibourne W. Patty, Jr. Executive Director Arkansas Institute of Continuing Legal Education
SECOND YEAR OF OPERATION NEARLY DOUBLES CLE ACTIVITY IN ARKANSAS The Arkansas Institute for Continuing Legal Education (AICLE) has completed its second year of operation. During the past year, the number of programs, the diversity of topics and the overall attendance by the Bar have shown a marked increase over the previous year. Statistically speaking AICLE directiy sponsored six programs in Little Rock, one at DeGray Lodge at Arkadelphia, and three regional workshops on the new Rules of Civil Procedure which met one day each in Fayetteville, Jonesboro and EI Dorado. A total of 118 lecture/demonstration hours were presented to approximately 1350 registrants, or an average of 135 registrants per program-session. To relate these statistics to Arkansas Bar membership, the number of registrants increased from one-third during the previous year to more than onehalf of the Bar membership during the immediate past year. The number of lecture hours almost exactly doubled and the number of programs increased 25% As I have stated previously, by necessity as well as by tradition, AICLE relies on the members of the Arkansas Bar Association to voluntarily participate as planners, program chairmen, lecturers and panelists, or authors either pro bono or with modest honoraria and minimal reimbursement of expenses only. On my own behalf and on behalf of the AICLE Board, I wish to take this opportunity to thank the leaders and members of the Arkansas Bar Association for their support and direct participation in AICLE programs as well as their indirect support and participation by providing input and suggestions for the improvement of existing programs as well as the 156/Arkansas Lawyer/October 1979
presentation of new programs. The leadership of the Bar Association deserves particular thanks because they have supported strong Bar section and committee activity in the area of CLE programs and publications. The members deserve appreciation for their enthusiastic participation as program faculty as well as their enthusiastic attendance as registrants. Not to be overlooked are the two cosponsoring law schools, the University of Arkansas Law School in Fayetteville and the UALR School of Law, which provided leadership in program planning through their respective deans and provided generous faCUlty support for program participants. In addition, UALR School of Law continues to provide housing for AICLE as well as the salaries for the Executive Director and his secretary. In this sort of climate, AICLE cannot help but grow; and the Bar membership will continue to benefit by the availability of quality CLE programs available to them at geographically convenient locations at registration costs modest by national comparison.
sider the basic tax aspects of legal transactions which the general practitioner is otherwise qualified to perform. In other words the program was designed to aid the general practitioner to become aware of tax aspects pertaining to typical legal transactions and forms of litigation so the practitioner may ascertain and avoid common tax pitfalls. Since the response to this program was so favorable and the questionnaires indicated a further interest in the estate planning area, the Taxation Section is now working on a tax awareness workshop to deai specifically with wills, trusts and estate planning with emphasis on the gift and estate tax implications for the benefit of the general practitioner. Once again the program is not designed to make a tax specialist out of the general practitioner, but to merely point out the basic gift and estate tax implications and the common pitfalls to be avoided in connection with wills, trusts and estate planning. More information on this program will be sent to the Bar membership in 1980.
Tax Awareness Workshop For The General Practitioner To Be Repeated In The Spring Of 1980.
Trial Advocacy College-A First For Arkansas
A Tax Awareness Workshop for the General Practitioner, cosponsored by AICLE and the Taxation, Trusts, and Estate Planning Section of the Arkansas Bar Association was presented at the Camelot Inn in Littie Rock on April 27-28. The general topics concerning basic tax implications of divorce and separation, real estate transactions, estate planning and creation of a professional corporation were enthusiastically received by the registrants. The program was designed to con-
The UALR School of Law, Hastings Center for Trial Advocacy and AICLE jointly sponsored a four-and-a-half day program conducted in Little Rock at the UALR School of Law courtroom facilities May 13-17, 1979. This program was limited to 40 registrants, and it was designed primarily for practicing attorneys with zero to five years of trial practice experience. This Trial Advocacy program stressed techniques and information designed to enhance the practical knowledge and to
sharpen the courtroom skills of those attorneys who attended. Lecturers, demonstrations and workshops were conducted by highly qualified teams of experienced trial practitioners and law professors. The topics included direct and cross examination of witnesses (expert and lay), adverse examination, opening statement and closing argument, use of demonstrative evidence and foundationsimpeachment. Each of the registrants were assigned to one of three workshops, each consisting of a leader and a different pair of workshop faculty each day. The workshop leaders were Professor Barbara A. Caulfield, now with Hastings College of Law and formerly head of the NITA program; James A. George of Baton Rouge, Louisiana, who is also on the Hastings faculty; and Professor Steven Goldberg of the UALR Law School. The other workshop faculty mentioned above consisted of a different pair of experienced Arkansas trial practitioners (one plaintiff-oriented and one defense-oriented) to work with each of the work groups. By the use of lecturers, demonstrations and videotaping of the performance by participants, the workshops focused on improvement of the participants' trial skills. This particular workshop met with a most enthusiastic response by those attending, and plans are now underway to make this an annual event to be held at the UALR School of Law. Please note the more detailed article on this seminar elsewhere in The Arkansas Lawyer.
New Arkansas Form Book And New Bankruptcy Law Topics of the Fall Legal Institute. The new Arkansas Form Book, edited by Professor Robert R. Wright of UALR School of Law and the new Federal Bankruptcy Code which will become effective October 1, 1979, are the topics of the 1979 Fall Legal Institute to be held at the Camelot Inn in Little Rock on September 13 and 14. At this time the Thursday afternoon program will be devoted to the new Arkansas Form Book with its editor, Professor Robert R. Wright, presiding as chairman. Professor Wright will spend about an hour describing the creation, purpose and use of the new Form Book and the remaining time will be spent with a panel of practitioners moderated by Professor Wright, who will discuss the use of the Form Book in certain areas of the law such as: commercial transactions, contracts, the creation of corporations, partnerships, associations and sole proprietorships; and in the area of real estate transactions involving sales, leases, conveyances, etc. It is contemplated that these are two of the typical areas in which a Form Book of this sort will be extensively used, and the comments and suggestions made by the panelists will aid the users of the book to implement the forms pertaining to other areas of law practice. "Mark Your Calendars" The program on Friday will be chaired by Allen W. Bird, II, who is also chairman of the Arkansas Bar
Juris Dictum (continued from page 153) IN路STATE 38 percent or $92,666 has been used for in-state education. Of this amount 28 percent or $67,958 has been utilized for Arkansas Judicial Council Seminars. 5 percent or $11,500 for Court Reporters' Association Seminars. 3 percent or $6,323 has been expended for circuit clerks continuing education, 1 percent or $3,333 for prosecuting attorneys and their deputies and 1 percent or $3,552 for municipal judges. Our congressional delegation has played an important part in seeing that the judicial branch has received its proportionate share of LEAA funds
administered by the U.S. Department of Justice and it is anticipated that continued interest in the improvement of the administration of justice will be sustained. Even though like the little bat in Alice in Wonderland, we sometimes wonder what we're at, with continued interest in further education and knowledge we will be able to enjoy the fact that we are not in the position of the queen in "Alice" who said, "A slow sort of country I Now here you see, it takes all the running you can do to keep in the same place. If you want to get somewhere else, you must run at least twice as fast as that!" (More Later)
:Ill If-..,
Association Creditors' Rights Committee. It will involve presentation of various aspects of the new Bankruptcy Code by seasoned practitioners in the bankruptcy area, including the Referee in Bankruptcy, Hon. Charles Baker, who will emphasize how the bankruptcy law and court system will affect general practitioners representing debtors, creditors or third parties. A brochure describing this program in detail will have been already mailed to the Bar membership by the time they receive this issue of the Arkansas Lawyer. Practice Skills Course The Twentieth Annual Practice Skills Course, designed for the recent admittee to the Bar (and those lawyers recently becoming active in the practice of law), will be held at the Camelot Inn, Little Rock, Arkansas, October 4-6, 1979. This course, formerly the "Bridging-the-Gap" seminar, is sponsored jointly by AICLE and the Young Lawyers Section of the Arkansas Bar Association. The object of the course is to provide basic and practical instruction by lawyers who have a recognized expertise in the areas they will discuss. The sessions conducted during this two-and-a-half day period will include an extensive review and analysis of current forms used by these lawyers in their daily practice. Typical subjects will include: ethics and fees, real property transactions, estate planning and probate, domestic relations, representation of business clients, litigation, criminal practice, representation of creditors and debtors, economics of law practice, and worker's compensation. A brochure more fully describing this program will be mailed to the Bar membership in general, and it will be handed out to the new admittees when they are sworn in before the Supreme Court. Reminders of these programs as well as CLE programs planned for the remainder of the Bar year 1979-80 will appear in future issues of the Arkansas Bar Association News Bulletin. Please be sure and mark your calendars if you are interested in these programs.
I...,
iIIi'
October 1979/Arkansas Lawyer/157
AICLE - ABA FALL LEGAL INSTITUTE SEPTEMBER 13-15, 1979 CAMELOT INN, LITTLE ROCK INTRODUCING
THE ARKANSAS FORM BOOK by Professor Robert R. Wright
AND
"CLE" SUBJECTS
THE NEW BANKRUPTCY CODE (Effective October 1, 1979)
Committee/Section "Roundup" Thursday Morning, September 13th
House of Delegates' Meeting Saturday Morning, September 15th
Arkansas v. Colorado State Saturday Evening, September 15th
158/Arkansas Lawyer/October 1979
\
Arkansas Bar Association EXECUTIVE COUNCIL President (534-5221 ) President-Elect (375-9131) Immediate Past President (523-6751 )
E. Harley Cox, Jr. P.O. Box 8509 Pine Bluff. AR 71611 Phillip Carroll 720 West Third Little Rock. AR 72201 Wayne Boyce 209 Walnut SI. Newport. AR 72112
Secretary Treasurer (376-2011) Chairman, YLS
James A. Bullry 2000 First National Bldg. Little Rock. AR 72201
(371-2007)
W. Russell Meeks, III 8123 Lowell Lane Little Rock. AR 72207
Chairman, Executive Council (773-5651)
John F. Stroud State Line Plaza Texarkana, AR 75502
SOUTHERN STATE BAR DISTRICT William C. Bridgforth 1980 Dennis Shackleford 1981 Clint Huey 1982
Pine Bluff EI Dorado Warren
NORTHWESTERN STATE BAR DISTRICT Robert L. Jones, III 1980 1981 David A. Malone Thomas D. Ledbeller 1982
Fort Smith Fayelleville Harrison
CENTRAL STATE BAR DISTRICT Christopher Barrier 1980 Webster L. Hubbell 1981 Gus B. Walton, Jr. 1982
lillie Rock lillie Rock lillie Rock
NORTHEASTERN STATE BAR DISTRICT Tom. B. Smith 1980 Robert G. serio 1981 LeRoy Froman 1982
Wynne Clarendon searcy
LIAISON NON-VOTING MEMBERS Chairman, Legal Education Commillee .......•••........Don M. Schnipper 123 Market SI. Hot Springs. AR 71901 Chairman, Arkansas Bar Foundation .........•...................Boyce Love 2000 First National Bldg. Little Rock. AR 72201 Executive Director
Delegate to American Bar Association Arkansas Judicial Representative
Herschel H. Friday 2000 First National Bldg. Little Rock. AR 72201 Judge Tom Digby Pulaski County Courthouse Little Rock, AR 72201
C. E. Ransick 400 West Markham SI. Little Rock, AR 72201
.
STAFF Executive Director Administrative Assistant Membership secretary Publications Assistant Commillee/Sections Secretary Lawyer Referral Service
160/Arkansas Lawyer/October 1979
C. E. Ransick Judith Gray Barbara Tarkington Kaye S. Oberlag Billie Bates Adrienne Brietzke
Arkansas Bar Association 400 West Markham lillie Rock, AR 72201 (501-375-4605)
~~~~~--~-------------------------------------------.,
1979-1980 HOUSE OF DELEGATES President (534-5221 ) President-Elect (375-9131) Immediate Past President (523-6751)
E. Harley Cox, Jr. P.O. Box 8509 Pine Bluff, AR 71611 Phillip Carroll 720 West Third Little Rock, AR 72201 Wayne Boyce 209 Walnut St. Newport, AR 72112
Secretary Treasurer (376-2011 ) Chairman, YLS
James A. Buttry 2000 First National Bidg. Little Rock, AR 72201
(371-2007)
W. Russell Meeks, III 8123 Lowell Lane Little Rock, AR 72207
Chairman, Executive Council (773-5651 )
John F. Stroud 6 State Line Plaza Texarkana, AR 75502
NON-VOTING MEMBERS Past Presidents
District No.1 John R. Elrod P.O. Box 580 Siloam Springs, AR 72761 Term Expires 1980
VOTING District No.9 R. Bynum Gibson, Jr. Box 303 Dermott, AR Term Expires 1980
MEMBERS District No. 17 Harry Truman Moore Box 726 Paragould, AR 72450 Term Expires 1982
District No.2 Thomas D. Ledbetter P.O. Box 637 Harrison, AR 72601 Term Expires 1981
District NO.1 0 David Mac Glover 130 West Second Malvern, AR Term Expires 1980
District No. 18 James F. Sloan Box 309 Walnut Ridge, AR Term Expires 1980
District No.3 Paul D. Gant 630 Broadway Van Buren, AR 72956 Term Expires 1982
District No. 11 William Reed P.O. Box 327 Engiand, AR 72041 Term Expires 1981
District No. 19 Jerry C. Post Box 2595 Batesville, AR 72501 Term Expires 1982
District NO.4 James K. Young 306 S. Arkansas Russellville, AR Term Expires 1980
District No. 12 Jerry Cavaneau Box 100 Searcy, AR 72143 Term Expires 1982
District No. 20 Frank Huckaba Courthouse Mountain Home, AR Term Expires 1980
District No.5 Charles A. Yeargen Box 214 Glenwood, AR Term Expires 1980
District No. 13 John M. Pittman Box "J" West Helena, AR Term Expires 1980
District No. 21 Edward Allen Gordon Box 558 Morrilton, AR 72110 Term Expires 1982
District NO.6 James A. Pilkinton, Sr. P.O. Box 583 Hope, AR 71801 Term Expires 1981
District No. 14 Tom B. Smith Box 592 Wynne, AR Term Expires 1980
District No. 22 G. William Lavender Box 1938 Texarkana, AR 75501 Term Expires 1982
District No.7 Oliver Clegg P.O. Drawer A Magnolia, AR 71753 Term Expires 1981
District No. 15 C. B. Nance Box 1090 West Memphis, AR Term Expires 1981
District No. 22 Leroy Autry Box 960 Texarkana, AR Term Expires 1980
District No.8 Samuei N. Bird Box 507 Monticello, AR 71655 Term Expires 1982
District No. 16 John B. Mayes P.O. Box 406 Blytheville, AR 72315 Term Expires 1981
District No. 23 Carl A. Crow, Jr. 520 Ouachita Hot Springs, AR 71901 Term Expires 1982
District No. 23 Regina Whitaker Laidier 116 Trivista Right Hot Springs, AR Term Expi res 1980 District No. 24 Norwood Phillips 100 East Church EI Dorado, AR 71730 Term Expires 1981 District No. 24 Floyd M. Thomas, Jr. 423 No. Washington EI Dorado, AR Term Expires 1980 District No. 25 William C. Bridgforth Box 8509 Pine Bluff, AR 71601 Term Expires 1981 District No. 25 Jack A. McNulty Box 7808 Pine Biuff, AR Term Expires 1980 District No. 26 Tommy Womack Box 1245 Jonesboro, AR Term Expires 1981 District No. 26 Paul Mark Ledbetter Box 1346 Jonesbcro, AR 72401 Term Expires 1982 District No. 27 Boyce Davis 115 South Main Lincoln, AR 72744 Term Expires 1981 District No. 27 Charles N. Williams 112 Southeast Avenue Fayetteville, AR Term Expires 1980 October 1979/Arkansas Lawyer/161
District No. 27 David R. Malone U of AR, Law School Fayetteville, AR Term Expires 1980
District No. 29 Charles L. Carpenter 1405 Main St. N. Little Rock, AR Term Expires 1980
District No. 29 Robert R. Wright 400 West Markham Little Rock, AR Term Expires 1981
District No. 29 Tim Boe 1635 Union National Bldg. Little Rock, AR Term Expires 1982
District No. 28 S. Wallon Maurras P.O. Box 43 Fort Smith, AR Term Expires 1981
District No. 29 Donald T. Jack, Jr. 1550 Tower Buildin9 Little Rock, AR 72201 Term Expires 1980
District No. 29 Robert D. Ross 300 Spring Buildin9 Little Rock, AR Term Expires 1981
District No. 29 B. Frank Mackey, Jr. 1970 Union National Bldg. Little Rock, AR 72201 Term Expires 1982
District No. 28 Bill Thompson P.O. Box 818 Fort Smith, AR 72901 Term Expires 1981
District No. 29 Frederick S. Ursery 2000 First National Little Rock, AR 72201 Term Expires 1980
District No. 29 George N. Plastiras P.O. Box 3363 Little Rock, AR Term Expires 1981
District No. 29 James M. Moody 2200 Worthen Bank Bldg. Little Rock, AR 72201 Term Expires 1982
District No. 28 Robert E. Hornberger Box 185 Fort Smrth, AR 72901 Term Expires 1982
District No. 29 Gus B. Walton, Jr. 2200 Worthen Bank Little Rock. AR Term Expires 1980
District No. 29 Robert M. Cearley. Jr. 1014 West Third Little Rock, AR 72201 Term Expires 1981
District No. 29 William L. Owen 400 Gaines Place Little Rock. AR 72201 Term Expires 1982
District No. 28 Robert R. Claar 3017 Free Ferry Fort Smith, AR Term Expires 1980
District No. 29 Thomas L. Carpenter 807 W. Third Little Rock. AR Term Expires 1981
District No. 29 Allen W. Bird, II 720 West Third Street Little Rock, AR 72201 Term Expires 1982
District No. 29 R. Christopher Thomas 1700 First National Bld9. Little Rock. AR 72201 Term Expires 1982
LAW STUDENT MEMBER UALR-LAW SCHOOL Ann Henderson
PAST PRESIDENTS' COMMITTEE Walter R. Niblock Joe C. Barrett A. F. House Terrett Marshatt J. L. Shaver John A. Fogleman Willis B. Smith W. S. Mitchell Oscar Fendler Louis L. Ramsay, Jr. Bruce T. Bullion Maurice Cathey
Chairman
Jonesboro Little Rock Little Rock Wynne West Memphis Texarkana
Lrttle Rock Blytheville Pine Bluff Little Rock Paragould
1943-44 1948-49 1951-52 1953-54 1958-59 1959-80 1960-61 1962-63 1963-64 1964-65 1966-67
William S. Arnold J. Gaston Williamson Robert L. Jones, Jr. J. C. Deacon Paul B. Youn9 Henry Woods James West James Sharp Robert C. Compton Herschel H. Friday Walter R. Niblock Wayne Boyce
Crossett Little Rock Fort Smith Jonesboro Pine Bluff Little Rock Fort Smith Brinkley EI Dorado Little Rock Fayetteville Newport
1967-68 1968·69 1969-70 1970-71 1971-72 1972-73 1973-74 1974-75 1975-76 1976-77 1977-78 1978-79
SECTION CHAIRMEN Natural Resources Law Section
Young Lawyers Section
Gerald L. DeLun9 P.O. Box 1626 Fort Smith. Arkansas 72902
Criminal Law Section ....•..............Robert L. Lowery 1700 First National Building Little Rock, Arkansas 72201
Wm. Russell Meeks, III 8123 Lowell Lane Little Rock. Arkansas 72207
Savin9s and Loan Section
Law Student Section ....•..............Thomas DeMarco UALR-Law School Little Rock, Arkansas 72201 Labor Law Section
Philip K. Lyon 1550 Tower Building Little Rock, Arkansas 72201
Family Law Section
Ben D. Rowland 604 - Three Hundred Spring Little Rock, Arkansas 72201
162/Arkansas Lawyer/October 1979
Ed Cunningham 650 South Street Mountain Home, Arkansas 72653
Taxation, Trust and Estate Planning Section
Workers' Compensation Section
Thomas L. Overbey 1091 First National Building Little Rock. Arkansas Bobby Odom Post Office Drawer 818 Fayetteville, AR 72701
COMMITTEE CHAIRMEN Dennis L. Shackleford ....••.............Annual Meeting Anti-Trust & Trade Peter G. Kumpe Regulations Committee John L. Johnson ..........•.........Auditing Committee Bobby McDaniel ........•.........Automobile "No Fault" Insurance Committee Martin G. Gilbert Banking Law Committee Dennis L. Shackleford Cameras In The Courtroom Stephen A. Matthews Civil Procedures Committee Charles Roscopf Committee on Bar Related Title Insurance George Campbell Constitutional Reform Committee Robert G. Serio Consumer Law Committee Allen W. Bird, II Creditors Rights Committee Leroy Froman Desk Book Committee John G. Lile, III Economics of Law Practice Committee Michael W. Mitchell Eminent Domain Code Committee W. Dent Gitchel Environmental Law Committee E. Charles Eichenbaum Federal Legislation & Procedures Committee John P. Gill Governmental Affairs Committee Group Insurance & Eldon F. Coffman Malpractice Education House Committee Charles L. Carpenter .Interest on Lawyers Cyril E. Hollingsworth, Jr Trust Accounts Ralph M. Sloan, Jr .International Law Committee Charles L. Carpenter Judicial Council Liaison Committee
Douglas O. Smith, Jr Albert Graves LeRoy Autrey Thomas M. Carpenter
Judicial Evaluation Committee Judicial Nominations Committee Jurisprudence and Law Reform Committee Juvenile Justice Standards Committee
Beth E. Gladden Coulson, Woodson W. Bassett, III ..Law Student Liaison Committee Eugene Mazzanti Lawyer Referral Service Committee George Howard, Jr Legal Aid Committee Don M. Schnipper Legal Education Committee Jack A. McNulty Legislation Committee Raymond Galloway Maritime Law Committee Jerry L. Canfield Committee On The Mentally Disabled Pre-Law Advisors Committee Samuel C. Highsmith Truman E. Yancey Prepaid Legal Service Committee Richard F. Hatfield Probate Law Committee Festus H. Martin Professional Ethics & Grievances Committee James D. Storey Professional Utilization Committee Samuel A. Perroni Public Information Committee Tom A. Buford Real Estate Law Committee Thomas L. Overbey Specialization & Advertising Committee Judge Warren O. Kimbrough Uniform Laws Committee Andree L. Roaf Youth Education For Citizenship Committee
Arkansas Bar Foundation Chairman
(376-2011 ) Vice-Chairman (273-2417)
OFFICERS
1979-80
Boyce Love 2000 First National Bank Bldg. Little Rock, AR 72201 Sidney H. McCollum P.O. Box 447 Bentonville, AR 72712 Executive Secretary
Treasurer
(375-4605)
(853-5461 ) Secretary (972-1400) Colonel C. E. Ransick 400 West Markham Little Rock, AR 72201
Herman L. Hamilton, Jr. Box 71 Hamburg, AR 71646 Randall Ishmael P.O. Box 4096 Jonesboro, AR 72401
DIRECTORS Boyce Love James D. Cypert Herman Hamilton Christopher Barrier Ed McCorkle Randall W. Ishmael C. B. Nance, Jr. Ex-Officio:
1980 Little Rock 1980 Springdale 1980 Hamburg 1980 Little Rock 1980 Arkadelphia 1980 Jonesboro 1980 West Memphis E. Ha rley Cox President Arkansas Bar Association
1981 1981 1981 1981 1981 1981 1981
Sidney H. McCollum Douglas O. Smith, Jr. Dennis L Shackleford Byron M. Eiseman, Jr. Joe D. Woodward Donis B. Hamilton William A. Eldredge, Jr. Marvin L. Kieffer Past-Chairman
Bentonville Fort Smith EI Dorado Little Rock Magnolia Paragould Little Rock
Arkansas Bar Foundation
COMMITTEE CHAIRMAN Awards Court Standards Finance House Investment Advisory Oral History
Boyce Love John P. Gill John L Johnson Charles L. Carpenter James B. Sharp H. Alan Wooten
Public Education Scholarships & Memorials Selection of Fellows Trust Writing Awards
E. Alvin Schay Douglas O. Smith, Jr. Wm. A. Eldredge Henry Woods James A. Cypert October 1979/Arkansas Lawyer{163
LOCAL BAR ASSOCIATIONS ARKANSAS ASSOCIATION OF WOMEN LAWYERS President Jeanene Delille
FRANKLIN COUNTY BAR ASSOCIATION President . .
Vice-President. _
Vice-President
Regina Laidler
Treasurer. . . . . . . . . . . . . . . . . . . . . .. . Gladys Lucy Recording Secretary Betty Anderson Corresponding Secretary. . .Annabelle Clinton ARKANSAS COUNTY BAR ASSOCIATION President .... ........ .F. Russell Rogers Vice-President ................. . .Malcom Smith Secretary Treasurer Virgil Moncrief BAXTER COUNTY BAR ASSOCIATION President . James W. Atkins Vice-President. . . . . . . . . . . . Norman Wilburn Secretary . Rick Spencer Treasurer Chuck Vandergrif BENTON COUNTY BAR ASSOCIATION President .. ......... . Howard Slinkard . Terry Lee Vice-President.. . . . .. .. .. . Secretary . . . . . . . . . . . . . . . . . . . . . . . . . .Asa Hutchinson BLYTHEVILLE BAR ASSOCIATION President. . .
........
.
Bill E. Ross
Vice-President John B. Mayes Secretary-Treasurer. .. . .. .. .. . Jeff Gardner BOONE COUNTY BAR ASSOCIATION President . John Hackett Vice-President Kandy Gregg Webb Secretary~Treasurer . . . . . . . . . . . .James Gresham BRADLEY COUNTY BAR ASSOCIATION President. . . H. Murray Claycomb Vice-President. . .. Robert Vittitow Secretary-Treasurer Stark Ligon CARROLL-MADISON COUNTY BAR ASSOCIATION President Steven Vowell Secretary-Treasurer Kent Coxsey CHICOT COUNTY BAR ASSOCIATION President W. K. Grubbs, Sr. CLARK COUNTY BAR ASSOCIATION President .... . . . . . . . . . . . . . . . . . W. H. Dub Arnold Secretary. . . . . . . . .
.
Sherry Mathis
CLEBURNE COUNTY BAR ASSOCIATION President. . . . . . . . . . . . . . . ........ . Mike Irwin Vice-President ........ . Ancil Reed Secretary. . . . . . . . . . . . . . . . . . . . . . . . . . . . . Jim Cooper Treasurer Earl N. Olmstead COLUMBIA COUNTY BAR ASSOCIATION President Ronnie Bell . Mike Epley Secretary-Treasurer. . . .. .. . . . . . CONWAY COUNTY BAR ASSOCIATION President. . .. Howard Yates Vice-President Nathan Gordon Secretary-Treasurer .. . William J. Cree CRAIGHEAD COUNTY BAR ASSOCIATION President W. B. Howard Vice-President Troy Henry Secretary-Treasurer Stephen M. Reasoner CRITTENDEN COUNTY BAR ASSOCIATION President. . . . . . . . . . . . . . . . . . . . .. .
James C. McCaa, 111
Vice-President Clint Saxton . William Hightower Secretary-Treasurer.. . . . . . . . . .. . . CRAWFORD COUNTY BAR ASSOCIATION President. .................. . Robert Marquett Secretary-Treasurer. .. . . . . . . Steven Peer CROSS COUNTY BAR ASSOCIATION President. . . John N. Kellough Vice-President DeLoss McKnight J. L. Shaver, Jr. Secretary-Treasurer 164/Arkansas Lawyer/October 1979
... Steve White .... Neva King
.
Secretary-Treasurer
. .. Lonnie Turner
.
FAULKNER COUNTY BAR ASSOCIATION President. William M. Clark .Phil Stratton Secretary-Treasurer. . . .. . . . . . . GARLAND COUNTY BAR ASSOCIATION President . R. Keith Arman Vice-President. . . . . . . . . . . . . . George M. Callahan Secretary-Treasurer. . . . . . . . . . . . . . . . . . . . . .Don Pullen GRANT COUNTY BAR ASSOCIATION President Vice-President Secretary-Treasurer
John W. Cole Joseph W. Swaty . Harold King
GREENE-CLAY COUNTY BAR ASSOCIATION President. . . . . . . . . . . . . . . . . . . . . . . . . . .. H. T. Moore ........ . Oliver Cox Vice-President .. Secretary-Treasurer. . .
.
Joe Holifield
HOT SPRING COUNTY BAR ASSOCIATION President Lawson E. Glover G. Chris Walthall Secretary-Treasurer INDEPENDENCE COUNTY BAR ASSOCIATION President . .Josephine L. Hart JACKSON COUNTY BAR ASSOCIATION . .Harold Erwin President. Vice-President .... . Joseph P. James Secretary-Treasurer ........... . Max O. Bowie JEFFERSON COUNTY BAR ASSOCIATION President. . . Vice-President Secretary-Treasurer. . .
Bart Mullis Ted Drake John Rush
LAWRENCE路RANDOLPH COUNTY BAR ASSOCIATION President. . . . . Harry L. Ponder Vice-President
Secretary-Treasurer
Harrell Simpson, Jr.
.
LEE COUNTY BAR ASSOCIATION President Vice-President LONOKE COUNTY BAR ASSOCIATION President. . . . . . . . Vice-President Secretary-Treasurer. . .
Tom L. Hilburn
.
W. H. Daggett Carrold E. Ray Navada Roberts Charles A. Walls Joe O'Bryan
NAVADA COUNTY BAR ASSOCIATION President . .James H. McKenzie Secretary-Treasurer Joe M. Fore NORTH PULASKI COUNTY BAR ASSOCIATION President.. .. .. . .. . .. . . .. . . .. . . Robert P. Pierce Vice-President Larry Carpenter Secretary .Darryl E. Baker Treasurer
NORTH CENTRAL BAR ASSOCIATION President . Vice-President . Secretary-Treasurer .
Charles Smith
.. Forrest Dunaway .. Bill McKimm ....Herbert L. Ray
MONROE COUNTY BAR ASSOCIATION President Raymond Abramson Secretary Steven Elledge Treasurer John McKnight
MARION COUNTY BAR ASSOCIATION President .. . . . . . . . . .. . Secretary. . . . . . . . . .
Mike Kelly . .Dale Shoup
NORTHEAST ARKANSAS BAR ASSOCIATION President . . . . . . . . . . . . . . . . . . . Joe C. Boone Vice-President C. B. Nance, Jr. Secretary-Treasurer Bill Ross OSCEOLA BAR ASSOCIATION President Vice-President Secretary-Treasurer
Ralph Wilson, Jr. Mike Bearden Lee Ferguson
OUACHITA COUNTY BAR ASSOCIATION President Ralph E. Faulkner Vice-President V. Benton Rollins Secretary-Treasurer Ralph C. Gaze PHILLIPS COUNTY BAR ASSOCIATION President. John M. Pittman Secretary-Treasurer _. . .. .. . .. _ Jesse Porter PIKE COUNTY BAR ASSOCIATION President. . . . . . . . . . . . . Vice-President Secretary-Treasurer
Jimmy L. Featherston Philip M. Clay James C. Graves
POINSETT COUNTY BAR ASSOCIATION President Vice-President Secretary-Treasurer POLK COUNTY BAR ASSOCIATION President . . . . . . . . . . . . . . . . . . . Vice-President Secretary-Treasurer.. . . . . . .
.
John Henry Burk Dabney Mike Everett James Stoker Jerry W. Looney David Maddox
ST. FRANCIS COUNTY BAR ASSOCIATION President. . . . Michael Easley Secretary. ........ . Preston Hickey SALINE COUNTY BAR ASSOCIATION President Secretary-Treasurer ,
. .George Ellis Richard Madison
SEBASTIAN COUNTY BAR ASSOCIATION G. Alan Wooten President Vice-President Harry A. Foltz Secretary-Treasurer Randolph C. Jackson SOUTHEAST ARKANSAS BAR ASSOCIATION President
Sam Bird
SOUTHWEST ARKANSAS BAR ASSOCIATION President Ed McCorkle Vice-President John Finley, III Secretary-Treasurer Talbot Field TEXARKANA BAR ASSOCIATION President Vice-President , Secretary Treasurer
Winford L. Dunn William Haltom Johnny Arnold William C. Gooding
UNION COUNTY BAR ASSOCIATION President Vice-President . . Secretary-Treasurer
Floyd Thomas William A. McLean Jerry James
WASHINGTON COUNTY BAR ASSOCIATION President . James M. Roy Vice-President David B. Horne Secretary-Treasurer . Joe Reed
POPE-YELL COUNTY BAR ASSOCIATION JeH Mobley President Vice-President Robert W. Hardin Secretary-Treasurer.. . . . . .. . . Ms. Ruth Teal
WHITE COUNTY BAR ASSOCIATION President Vice-President Secretary-Treasurer. , , ,
PULASKI COUNTY BAR ASSOCIATION President Milas H. Hale Vice-President Guy Amsler, Jr. Secretary-Treasurer ........•• _...••.•........Frank Seweli
WOODRUFF COUNTY BAR ASSOCIATION President James F. Daugherty Vice-President , .. ,T. B. Fizhugh Secretary-Treasurer .............•..........Joe N. Peacock
Paul Petty , .. William P. Mills , ,Clarence ShoHner
ARKANSAS INSTITUTE OF CONTINUING LEGAL EDUCATION BOARD OF DIRECTORS 1979-1980 Robert K. Walsh (371-1071)
UALR, Law School 400 West Markham Little Rock, AR 72201
Marvin L. Kieffer (932-1120) Phillip Carroll (375-9131 ) Boyce Love (376-2011 )
McAdams Trust Bldg. Jonesboro, AR 72401 720 West Third Little Rock, AR 72201 2000 First National Bldg. Little Rock, AR 72201
E. Harley Cox, Jr. (534-5221 )
P.O. Box 8509 Pine BluH, AR 71611
C. E. Ranslck (375-4605)
400 West Markham Little Rock, AR 72201
Wm. Russell Meeks, III (371-2007) Don M. Schnipper (624-1252) Sid McCollum (273-2417) Ben Core (782-0361 ) David Epstein (575-5600) EXECUTIVE DIRECTOR Claibourne W. Patty, Jr. (371-2267)
Justice Bldg. Little Rock, AR 72201 123 Market Hot Springs. AR 71901 Box 447 Bentonville. AR 72712 Box 1446 Ft. Smith, AR 72902 University of Arkansas School of Law Fayetteville, AR 72701 400 West Markham Little Rock, AR 72201 October 1979/Arkansas Lawyer/165
There may be an angry client on your trail! - - -.=6_ --~-
--
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You never know when a client will threaten you with a lawsuit ... and be hot on your trail to collect. In view of the growing number of claims and the dollar amounts paid in settlement, the time may come when the only practicing attorney wiu be a well-protected attorney. No lawyer, working alone or as part of a team, is immune from a lawsuit. CNA and the Arkansas Bar Association have worked together to come up with a comprehensive program of professional liability insurance for its members that helps protect both your financial and professional future. First, it helps to minimize the causes of liability suits through loss prevention programs. Then, it provides financial protection to help guard you against professional and business liability with a maximum of$100,000 per claim ($300,000 annually) after a deductible. Think you need more? Supplemental protection of$1,000,000 for business and professional coverage and $1,000,000 for personal liability is also available. Your professional survival may depend on adequate insurance protection. Find out more about your Arkansas Bar
.;...
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Please send me information for the Arkansas Bar' Association sponsored Lawyers Professional and DU.!oincss Liability Insurance. Send 10:
Arkansas Bar Association Administrator Rather. Beyer & Harper Suite 362. Prospect Building. 1501 North University. Little Rock, Arkansas 72207. Or call (501) 664-8791.
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PHOTO Hiqhlights
81st ANNUAL MEETING JUNE 6-8, 1979 ARLINGTON HOTEL HOT SPRINGS, ARKANSAS
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ADVISING INNOVATORS by Robert R. Keegan
Who is Pat. Pending? Many products bear cryptic notices having to do with some proprietary interest in an innovation connected with the product. For the most part the general public is badly misinformed with respect to these notices. For example, there seems to be an undeserved mystery associated with the term "Pat. Pending" found in great proliferation on products of all kinds. Legend has it that there was a novelty manufacturer in New York City who had his name legally changed to Pat Pending in order to have an excuse to put it on all of his products. "Pat. Pending" simply means "patent pending" and is equivalent to "patent applied for." Strictly speaking, a product should not be marked Pat. Pending or the equivalent unless there is on file in the Patent Office an application for patent on the product. Understandably one may find that products are occasionally so marked when the patent application is still in the course of preparation. Even less excusable misrepresentations are all too frequent. There is a significant penalty in the patent law for falsely marking patent notices such as patent pending or patent applied for. 35 U.S.C. §292. The penalty for false marking is $500 (maximum) for every offense. The statute also has one of those anachronistic provisions that anyone may sue for the penalty and claim half of it as a bounty. The effect of the widely misunderstood "patent pending" notice is basically psychological. It has no effect on legal actions that might be taken by the patentee once the patent issues, and no action can be taken against an infringer until the patent does issue. Nonetheless the patent pending notice is considered to be of deterrent value because it warns a potential copier of possible future legal problems which could make the decision to copy a regrettable one. The legally significant patent notice on a product Is the patent number preceded by the word "Patent" or "Pat." ... 35 U.S.C. §287. The notice is not necessary to bring an action on the patent, but it serves as constructive notice to the infringer, and damages may be calculated only from the time of constructive or actual notice. As much as six years' damages could be lost by failure to properly mark a patented product. It is interesting to note that there are two kinds of patents, the ordinary or "utility" patent which relates to function and another "design" patent which relates solely to appearance. The patentee does not necessarily distinguish between them; some patentees will make a design patent marking more informative by using something like "Des. Pat. 250.000". In any case the design patent can be identified by the fact that the patent number will be under one million; historically, fewer design than utility patents have been issued. Since utility patents with numbers less than one million have been expired for over 50 years, it is safe to 172/Arkansas Lawyer/October 1979
assume that a number under one million indicates a design patent even though not so designated. What about "Registered In U.S. Patent Office"; does this mean that a product is patented. Very probably It does not. Such a notice relates to a trademark, and It Indicates that the trademark is registered in the United States Patent and Trademark Office. 15 U.S.C. §1111 . The most common and the most convenient notice of registration is @. As with the patent notice its absence can limit the recovery of past damages. When the user of a trade designation considers it to be a common law trademark but the mark has not been granted a U.S. registration, a small "TM" with or without a circle is often used. This is an accepted practice under the trademark laws. In addition to the @ for registered trademarks there are two more encircled symbols, provided for under the copyright law. 17 U.S.C. §401 - §406. Everyone has seen the ubiquitous encircled C, but the encircled P may have escaped notice. The former is a prescribed part of the notice for the usual copyright interest in copyrightable works; whereas the latter is part of the prescribed notice for a special copyright interest in phonorecords of a copyrighted sound recording. In either case the compiete notice must also include the year date (with certain exceptions), and the name of the copyright owner. Whenever a copyrightable work is "pUblished" (in general when it is distributed to the public), it should bear the appropriate copyright notice to advise that copyright is claimed in the work. The copyright owner may then at leisure file an application for registration of copyright; there are advantages in being reasonably prompt, however. The most common, and one ofthe most serious errors made by those unfamiliar with the copyright law is to produce and publish some work of literature, sculpture or music without a proper copyright notice. Some omissions of copyright notice or improper copyright notices are remediable (but only if they are not intentional). The word "copyright" or the abbreviation "copr." can be used in place of, or in addition to, the ©. One will often see both Copyright and ©; while the word is more commonly understood than the symbol, the symbol is specified in certain international conventions and may give international rights which the word would fail to do. These are only the essentials of patent, trademark and copyright notices that may be used relating to innovations in technology, trade, or art. However, armed with this knowledge the reader should be able to decipher just what proprietary interest is being claimed in a product. Sometimes it will be found that the proprietary interest claimed is not quite what the general public might be led to believe. Copyright
1979,
ROBERT R. KEEGAN
~
West Releases Special Deluxe Edition Of Black's Law Dictionary, 5th A July publication date was set for the completely revised Fifth Edition of Black's Law Dictionary, according to West Publishing Company. Release of this new edition of Black's marks the first time that the standard reference will be available in a Special Deluxe Edition, the company says. It features a padded cover of specially processed leather with gold foil stamping, thumb cuts, and a specially-made binding.
The HOUSE OF DELEGATES OF THE ABA has now established one of the most important and exciting entities in many
years-an educational COMMUNICATIONS FORUM.
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cisions involving First Amendment cases and other forms of communications law.
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Every day new trends are established in media litigation and the FORUM will be the best way to keep abreast of the times.
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It works like a master index relating all the sets to one another to make each more valuable than before
LOCAL OR FEDERAL KEY NUMBER
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Black's Law Dictionary was last revised in 1968. The new volume will also be available in a standard edition.
Send $15 enrollment fee to insure your place on this FORUM. Make check payable to ABA, but mail directly to me so that
Every attorney has some need of knowledge about recent developments and de-
Editorially, Black's Fifth Edition has bee.n revised to include more than 10,000 new entries reflecting recent developments in the law. For the first time, pronunciation guides will be included in the main text of the book. in addition, internal cross-references have been expanded, case citations updated, and recent legislation such as the 1978 Bankruptcy and Copyright Acts included. New appendices include a Table of Abbreviations; a chart of Supreme Court Justices and terms; an organizational chart of federal government; and the Constitution of the United States. Black's Fifth Edition makes numerous references to federal court rules, Uniform Commercial Code, internal Revenue Code, Model Penal Code and Restatements of the Law. It has expanded and updated coverage of areas of the legal profession ranging from accounting to uniform and model laws.
Only a tew attorneys are now being contacted as the enrollment probably will have to be limited to the first 1000.
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October 1979/Arkansas Lawyer/173
CODE Of PROfESSIONAL RESPONSIBILITY Financial Involvement With Clients Many complaints allege that the lawyer failed to fully represent and protect the interests of the complainant as a result of the lawyer's own financial interests in the matter.
Such a complaint may arise when, during the representaliun of a client in contemplated or pending litigation, the lawyer has acquired a financial interest in the au tcome of the matter. Disciplinary Rule 5-103(8) provides: " ... a lawyer shall not advance or guarantee financial assistance to his client. except that the lawyer may advance or guarantee the expenses of litigation. including court costs, expenses of investigation, expenses of medical examination, and costs of obtaining and presenting evidence. provided the client remains ultimately liable for such expenses."
and use of legal knowledge or skill. The relationship of lawyer and client could also arise or evolve if the nonlawyer entered into the transaction with the lawyer partly because of his status as a lawyer. or if, during the course of the transaction, the non-lawyer looks to the lawyer for advice or services because he is a lawyer. Such complaints should be avoided by making clear to any non-lawyer with whom one engages in a business transaction that no lawyer-client relationship is intended. As in most other business relationships, the roles of the parties are more clearly defined when the terms of the business agreement 3rc reduced to writing. A lawyer should refrain from rendering advice or services to such an individual which would create a lawyer-client relationship, insisting that he seek the advice and assistance of another lawyer whenever the need may arise. ' "
In complaints of this type the lawyer usually has advanced or guaranteed financial help to his client with the purest of motives. a desire to assist a client in serious
financial need. Nevertheless. such well-intentioned acts create seriolls ethical problems. The lawyer's financial interests or obligations in his client's cause limit the exercise of his independent professional judgment. This type of complaint may also arise when the lawyer engages in business transactions with a client not represented by other counsel. He fails to consider the arrangement as involving a lawyer-client relationship. Disciplinary Rule 5-104(A) provides: ..A lawyer shall not enter into a business transaction with a client if they have differing interests therein and if the client expects the lawyer to exercise his professional judgment therein for the protection of the client, unless the client has consented after full disclosure. " When a lawyer enters into a business transaction with a non-lawyer the relation of lawyer and client is generally found to exist. Usually a lawyer is deemed to be practicing law, whenever he furnishes to another advice or services under circumstances which imply his possession
174/Arkansas Lawyer/October 1979
-Take bim to COU,"t. .. tbat would be a good tr"ick to play on YOUI' neighbour. .. he would have to eat into his savings to the extent of at least three hundred fl"anes . .. -Yes, but Twould have to eat into my savings too and I have no appetite for" that. " "
OYEZ
•
,, OYEZ ••
by Barbara Tarkington Membership Secretary
MITCHELL D. MOORE, Osceola, has been elected to membership in the American College of Probate Counsel. LOUIS L. RAMSAY, JR., Pine Bluff, has been elected chairman of the board of Simmons First National Bank and also elected by the Arkansas Bankers Association as its first vice-president for the fiscal year 1979-80.• JERRY D. JACKSON, Little Rock, has been named by AP&L as its general counsel. JOHN C. GOCIO, a 1975 U of A Law School graduate and son of CHARLES GOCIO of Bentonville, has just received his medical degree. JUDGE JUDITH ROGERS, L~tle Rock. has been selected as the Democrat Woman of the Year. ALLEN GORDON, Morrinon, has been elected president·elect of the ATLA. JUDGE PAUL JAMESON, Fayetteville, was named the Arkansas Trial Lawyer Association's outstanding trial judge for 1979. WILLIAM H. BOWEN, Little Rock, has been chosen by the state Economics Development Commission as its vicechairman. MICHAEL R. DENNIS, Pine Bluff, has been appointed to the Pine Bluff staff of Congressman BERYL ANTHONY. FRED DAVIS, III, Pine Bluff, has been elected Redfield's city attorney. M. BURK DABNEY, JR. has been retained as "interim city attorney" for Marked Tree. HALL McADAMS, III, Little Rock. has been appointed to a 10-year term on the Univers~ of Arkansas Board ofTrustees. WEBSTER HUBBELL, Little Rock, was recently elected to complete an 18 month tenure as mayor of Little Rock. F. J. HOWELL, JR., Little Rock, has been accepted as an administrative law judge with the Worker's Compensation Commission. BILL WALTERS, Greenwood, has been included in the 2nd edition of Who's Who in American Law. FRED LIVINGSTON, Batesville, will again head the membership drive for the Mental Health Association. ROBERT D. CABE, Little Rock, has been elected chairman of the Board of Trustees of Hendrix College at Conway. JEWEL BROWN, Little Rock, has been appointed to the state Merit System Council. The Arkansas Trade Exchange has announced that LYNN DAVIS, lillie Rock, has been named its owner and director. DAVID PRYOR and HENRY WOODS were awarded Distinguished Alumnus Citations by the U of A at its
spring commencement. GOV. CLINTON has announced commisstoners to the Arkansas State Crime Commission. New on the commission are MICHAEL EASLEY, Forrest City and TOM TATUM, Danville; and those re-appointed are CHIEF JUSTICE CARLETON HARRIS, Little Rock; JOSEPH H. PURVIS, Little Rock; C. R. HUIE, Little Rock; JUDGE RANDALL WILLIAMS, Pine Bluff; and JUDGE ROBERT H. DUDLEY, Pocahontas. JIM GUY TUCKER, Little Rock, has been named chairman of the White House Conference on Families. ROBERT O. LEVI, N. Little Rock, was awarded in Mayas outstanding civilian allorney of the year for 1978 by the LRAFB Military Airlift Command. BYRON EISEMAN, JR., Little Rock, was a guest lecturer on corporation & tax law at the 97th annual meeting of the Kansas Bar Association held in May. JIMMY R. BURTON, Jonesboro, was speaker at the June meeting of the Arkansas Democratic Women's Convention. DAVID OSMON, Mountain Home, spoke at a June meeting of the Methodist Men's Christian Fellowship. DELIA COMBS, N. Little Rock, was guest speaker at the Garland County Federation of Republican Women's Club. She also emceed at the 29th annual Lincoln Day dinner sponsored by the Garland County Republic Committee. HILLARY RODHAM, Little Rock, was featured speaker at the McGehee Women's Chamber of Commerce. B. J. McCOY, Little Rock, spoke at an April meeting of the Justamites Clubs 11th Awards Tea. B. S. CLARK, lillie Rock, conducted a seminar on construction law at the National Association of Women in Construction that was held in April. BRENT HALTON, Stamps, has opened his law office at 302 Thomas Street. EDWARD L. ECKHART, formerly of Fayetteville, has opened an office in Rison and is also serving as the county's deputy prosecuting attorney. RICHARD L. SMITH, lillie Rock, has a law office in Perryville which will be opened on Tuesday & Thursdays. GEORGE G. GLEASON II, formerly with the Rose Law Firm, is now with the Bank of Ozark. JOHN A. DAVIS, ttl, formerly of Pine Bluff, is now with AMCA International Corporation in New Hampshire. TED N. DRAKE is now a partner in the Pine Bluff
law firm Bridges, Young, Matthews, Holmes & Drake. JAMES EADS, formerly of Dallas, Texas, is now located in Little Rock. HERMAN H. HANKINS, JR., formerly of Little Rock, is now practicing in Arkadelphia. BRENT BUMPERS, Littie Rock, is associated with the Spitzberg, Mitchell & Gill law firm. ANDREE ROAF, Pine Bluff, is now associated with Chinula & Walker of Little Rock. CARL BONNER, formerly of Siloam Springs, is now located in Bentonville. BRUCE E, MUNSON, formerly of Fayetteville, has become associated with the Little Rock law firm Laser, Sharp, Haley, Young & Huckabay. The Fayetteville law firm of Putman, Davis, Bassett, Cox & Wright have changed their name to Davis, Bassett, Cox & Wright. MARION L. FARMER, formerly of Fayetteville, has moved to Searcy. JAMES A. GRAY, formerly of little Rock, has moved to Hot Springs. A new NLR law firm has been formed, Lee & Green, R. WAYNE LEE and GARY L. GREEN with offices at 4915 J.F.K. Blvd. BILL D. ETTER, formerly of Little Rock, has moved to Jonesboro. WILLIAM C. HONEY, formerly of Rogers, has moved to Scottsdale, Arizona. BETH GLADDEN COULSON has opened a law office in Perryville. A. DELBERT MICKEL, JR. little Rock, announces the re-Iocation of his law office to 4120 W. Markham. ROGER HARROD, formerly of Arkadelphia, is now with the Arkansas Baptist Foundation in Little Rock. ROB BARROW, formerly of Helena, has moved to Litlle Rock. WILLIAM H. KENNEDY, formerly of Arlington, VA, is now associated with the Rose Law Firm. MARILYN BROWN has moved from Newport to Little Rock. DAVID E. HIGHTOWER, formerly of Texas, is now located in Fort Wayne, Indiana. A law firm has been formed in Texarkana, Texas, Friedman & Hooper with ERROL FRIEDMAN, DONALD FRIEDMAN, JIM HOOPER and MICHAEL FRIEDMAN. DONALD FRAZIER has returned to private practice with offices at 1100 N. University, Little Rock. PAUL LANCASTER has opened a law office at 115 N. Conway, Benton. SHARON M. FORTENBERRY has joined the law Pine Bluff law firm, Holmes, Holmes & Trafford. BEN JOHNSON, JR., (continued on page 183) October 1979/Arkansas Lawyer/175
Pictured with Governor Clinton at the signing ceremony for the Arkansas Tax Procedure Act are, from left to right, Commfftee Members Eugene Sayre, Charles Owen, Darrell Davis; Representatives Capps, Barclay, Tyre, Melson, and Bryan; Section Chairman Thomas L Overbey; and Senator Allen.
ARKANSAS TAX PROCEDURE ACT By Eugene G. Sayre (The author was Chairman of the Tax Section's Subcommittee on Uniform Tax Procedure. He wishes to acknowledge the invaluable contribution of time and experience to the project by the members of the Subcommittee, Bob Holmes of Pine Bluff, and Derrell Davis, Jack East, Wyck Nisbet, Charlie Owen and Joe Polk of Uttle Rock.)
Prior to the 1979 General Assembly's passage of Act 401 of 1979, the Arkansas Tax Procedure Act, Arkansas had no uniform procedure for the administration of its various taxing statutes. Rather, each separate tax, e.g., income tax, sales tax, use tax, estate tax, severance tax, etc., had its own procedural provisions for assessing, collecting and contesting the respective tax involved. In many instances, these procedural provisions were inconsistent l76/Arkansas LawyerlOctober 1979
and even conflicting, not only for the different types of taxes, but sometimes even when dealing with the same type of tax.
Act 401 of 1979, which becomes effective of January 1, 1980, will provide a uniform procedure for administering all State taxes. This Act was drafted and sponsored by a subcommittee of the Taxation, Trust and Estate Planning Section of the Arkansas Bar Association and was endorsed as part of the Association's legislative package for 1979.
To accomplish the objective of uniformity Act 401 generally follows the concepts provided by Subtitle F (ยง6001 et seq.) of the Internal Revenue Code dealing with Procedure
and Administration. The Act contains approximately 44 substantive sections which will apply to all Arkansas taxes, and it specifically repeals or amends 114 existing statutory provisions that were deemed to be in conflict.
Administration. The Act provides for the first definitive procedure for determining a deficiency assessment and it also provides a uniform method for filing claims for refund. For the first time, the Revenue Department is required to make readily available to the general public copies of all rules and regulations under which the tax laws are administered.
Interest. The Act provides that interest shall be paid on overpayments (refunds to taxpayers) as well as collected on deficiency assessments. The interest rate has been set at 8% per annum.
Penalties. In addition, the Act also estabiishes penalties, both civil and criminal, which track their federal counterparts. Cumulative monetary penalties for late filing and late payment are imposed (unless reasonable cause can be estabiished) and percentage penalties apply to negligence and willful fraud on the part of the taxpayer. A new "responsible officer" penalty, similar to the one provided by ยง66?2 of the IRC, is included and will provide the Commissioner a method of cOllecting deiinquent sales and use taxes from corporate officers individually when the responsible officer fail to pay over the taxes and their corporation becomes insolvent. The bad check penalty has been set at 10% of the face amount of the check, or $10, whichever is greater.
Collection. The powers of the Commissioner in collecting assessed taxes have also expanded. Under this Act, the Commissioner's agents may levy on a deiinquent taxpayer's property and sell it without having to rely upon the goodwill of the sheriffs in the various counties, as has been the past practice.
Statute of Limitations. The statute of iimitations provisions for assessment of any deficiency, iike the federal counterparts, has been set at three (3) years for the assessment of any deficiency, unless there is a 25% understatement of the gross amount reportable, when the statute of limitation is six (6) years. If the Commissioner is able to estabiish that the underpayment was due to fraud, then the statute of iimitations never expires.
Administrative Review. Probably the most significant procedural change is the estabiishment of an administrative appeals procedure whereby proposed deficiency assessments can be more easily contested by the tax-
payer. Under the new system, the Revenue Department auditor must give notice of the proposed assessment to the taxpayer in enough detail to explain the basis for the proposed change. If the taxpayer wishes to contest the proposed assessment, he may do so by filing a written protest with the Commissioner within 30 days after receipt of the notice. Thereafter, this matter is submitted to a Hearing Officer (a position similar to that of an Appeals Officer in the Appellate Division of the IRS) who shall determine the correctness of the proposed deficiency. While occupying this appointment, the Hearing Officer shall not contemporaneously have any other administrative duties within the Revenue Department. Under present practice, administrative personnel sit on the Revenue Department's hearing board on a rotating basis. Also, the Hearing Officer will hold hearings in any city in the State in which the Revenue Department maintains a Field Audit District Office, or in any other city that the Commissioner shall designate. This change will bring the forum for the administrative appeal before an independent reviewer to the taxpayer, rather than bringing the taxpayer to the Commissioner in little Rock, as is now the practice.
Judicial Review. In the same vein, if the Hearing Officer sustains the proposed assessment and a final assessment is made against the taxpayer, the tax can be paid under protest or a bond posted and the matter appealed for a trial de novo to the Chancery Court of Pulaski County or the Chancery Court of the county in which the taxpayer resides or has his principal place of business, whichever the taxpayer chooses. Jurisdiction is thus expanded statewide, instead of being only in the Pulaski County Chancery Court, as under present law.
Miscellaneous Provisions. There are numerous other procedural matters that are dealt with in this Act, e.g., a determination that timely mailing is the same as timely filing; if the last day for an act to be performed falls on a Saturday, Sunday or legal hoiiday, then the last day for performing the Act shall be the next full business day; municipalities are treated the same as other taxpayers for sales tax purposes; transferee liability is established, and the Commissioner is provided a defense in any civil suit. By the adoption of the Arkansas Tax Procedure Act, this State has overnight catapulted itself from having one of the worst procedural systems for administrating its taxing statutes to having one of the best systems. Only a few other states have followed the federal example and provided uniform tax procedure provisions, though the Committee on State and Local Taxation of the American Bar Association's Tax Section is presently drafting a Model Act in the area. It is anticipated that the Arkansas Tax Procedure Act will eliminate needless confusion and controversy for both State tax administrators and for practicing attorneys and their taxpaying ciients. Further, the Act should also allow taxpayers, who have heretofore foregone the contesting of legitimate disputes because of the costs involved, to have their day in court.
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October 1979/Arkansas Lawyer/1??
LAW SCHOOL NEWS Assistant Dean James K. Miller Assistant Dean Ellen Brantley
SCHOOL OF LAW, UNIVERSITY OF ARKANSAS, FAYETTEVILLE Dean David Epstein spoke to the State Bar of Texas Annual Meeting on the New Bankruptcy Act. He presented a one day program on the new bankruptcy Act at Gonzaga University School of Law. Mr. Epstein also offered a series of bar review lectures in Dallas, Houston, Austin, Denver, Minneapolis, Atlanta, and Chapel Hill. He has completed a set of teaching materials on the new bankruptcy act that will be published by West Publishing Company in August. He will be speaking at the American Bar Association Annual Meeting on the new Bankruptcy Act and will be participating with Judge Charles Baker, Allen Bird, Robert Brown, Charles Davidson, Isaac Scott, Jack Sirns and A. L. Terry in a program on the new Bankruptcy law to be held at the law school on August 8th, 9th and 10th. The School of Law recently installed a Lexis Computerized Research System. The unit's terrninal is on-line with a library in Ohio, and is the first computerized research unit installed in the state. The new system offers lawyers computerized access to a national electronic law library. The law school will teach beginning law students in the research techniques necessary to use this system in its courses on legal bibliography. Dr. Charles Bishop, president of the University visited the Law School and was given a demonstration of the use of this new system. A reception was held for Wiley A. Branton, Dean of Howard University's School of Law on April 24th. Dean Branton who was among the first black graduates of the School of Law, has practiced law in Arkansas and Washington, D. C., and has held important positions in the federal government, including Special Assistant 178/Arkansas Lawyer/October 1979
to the Attorney General and Executive Secretary of the President's Council on Equal Opportunity. Dean Branton was the speaker at the 39th annual Honors Day Convocation at the University. The Law School held its first annual alumni party at the annual meeting of the Arkansas Bar Association in June. The Law School wishes to thank the law firms of Ball & Mourton, Niblock & Odom, and Crouch, Blair, Cypert & Waters for financial assistance in sponsoring the party. Last year, the law school inaugurated its first Annual Summer Legal Institute. This program (patterned somewhat after the very successful program at Harvard) was designed to bring practitioners back to the classroom. The Institute lasted one week, and consisted of intensive courses in Taxation, Evidence and Secured Transactions. The second annual program is planned for August 6-10, 1979. Programs on Bankruptcy, Evidence, Tax, and Secured Transactions will be presented this year. Wylie H. Davis will be on leave of absence from UAF for the 1979-80 academic year. His appointment is the Earl F. Nelson Professorship (an endowed chair), which is designated as a "distinguished visiting professorship", at the University of Missouri-Columbia. He will be teaching Contracts, Insurance, and Adrniralty. Mr. Davis was the recipient of the "Certificate of Recognition" at the annual meeting of the State Bar earlier this month. The award is a special award of the Arkansas Bar Association. The faculty of the Law School of the University of Arkansas, Fayetteville, voted unanimously to name its library in memory of R. A. Young, Jr., long-
time trustee of the University of Arkansas, a founding member and leader for the Development Council, and a major benefactor of University programs and projects. Since Mrs. Young shared equally her husband's philanthropic interest, the faculty also honored her by naming the library jointly for Mr. and Mrs. Young. David Malone gave a program at the Jefferson County Bar Association and two programs to the Benton County Bar Association. Bill Riggs, a May graduate from Pine Bluff, has received the $1,000.00 annual Craig Sterne Memorial Award. Governor Bill Clinton was the speaker at the 105th annual spring commencement May 12. Clinton is a former assistant professor of law at the University. He joined the faculty in 1973 after graduating from Georgetown University in Washington, D.C. and the Yale Law School. While in law school, he taught in the law enforcement education program of the University of New Haven. Clinton served on the U of A faculty until 1976 when he ran for and was elected attorney general. Two Law School graduates, United States Senator David Pryor and Henry Woods, Little Rock attorney, received Distinguished Alumni Citations. The Law Review Staff recently selected for the 1978-80 year is: Tom Hardin, Editor-in-Chief, Hanahan, SC; David Fuqua, Managing Editor, Fayetteville, AR; Thomas Thrash, Comments Editor, Ashdown, AR, Jerry Jones, Research Editor, Bentonville, AR; Pat Joyce, Citations Editor, Charleston, IL; J. D. Gingerich, Business Manager, Stuttgart, AR; Louis Pappas, Articles Editor, Williamsburg, VA.
SCHOOL OF LAW, UNIVERSITY OF ARKANSAS AT LITTLE ROCK INAUGURAL ALTHEIMER LECTURE HELD The trial courtroom of the Old Federal Building was filled to capacity on Friday evening, April 13. Professor Philip B. Kurland, editor of the Supreme Court Review and Professor of Law at the University of Chicago, delivered the first of the Ben. J. Altheimer lectures. His topic was Government by Judiciary, and the text of his address will be published in the Fall, 1979 issue of the UALR Law Journal. After the conclusion of his lecture, Professor Kurland answered questions from the audience. Before the lecture, the School of Law hosted a reception in the appellate courtroom which adjoins the trial courtroom. A special guest at the reception was John Stern, a Chicago lawyer who serves as trustee of the Altheimer Foundation and who is a close friend of Professor Kurland. He introduced Professor Kurland. Two Altheimer lectures, which are made possible by a grant from the Ben J. Altheimer Foundation, will be held annually. The next lecture is planned for this fall. NELSON TAKES OFFICE AS PRESIDENT OF UALR LAW SCHOOL ASSOCIATION The UALR Law School Association held its annual meeting on Thursday, June 7 at Hot Springs. At the meeting, which was held in conjunction with the
annual meeting of the Arkansas bar Association, alumni and friends heard reports from Dean Robert K. Walsh, outgoing president Gayle Windsor, and incoming president Sheffield Nelson. OHicers for the 1979-80 year were elected. They are, Presidentelect: Sandra Wilson Cherry; VicePresident, Frank Whitbeck, Jr.; Secretary, James W. Spears; Treasurer, Claibourne W. Patty, Jr. CHANCELLOR ROSS HONORED The Pulaski County Bar Association honored Dr. Robert Ross, Chancellor of the University of Arkansas at Little Rock, at its annual law day banquet held at Pleasant Valley Country Club on Friday, May 18. Chancellor Ross received a Liberty Bell Award recognizing his support of legal education. FACULTV NEWS Dean Robert K. Walsh spoke on the duties and privileges of citizenship at the Naturalization Ceremony held in the United States District Court for the Eastern District of Arkansas on Tuesday, May 1. Dean Walsh served as judge of an essay contest for elementary school students sponsored by the Pulaski County Bar Auxiliary and Volunteers in Public Schools which was held in conjunction with Law Day. Dean Walsh and Professor Ken Gould attended a conference on clinical legal
education at Notre Dame Law School on May 28th and 29th. Assistant Dean Ellen Brantley spoke at a workshop on Women's Legal Rights at the annual convention of the Arkansas Association for Human Services in Hot Springs on April 30. She has been named a special commissioner of the Arkansas Public Service Commission to hear a rate case from which Commissioner John Pickett has disqualified. Professor Fred Harris was appointed to a position on the governing council of the Labor Law Committee of the Arkansas Bar Association. Professor Earl Maltz's article, "A Bakke Primer," was published in the Winter 1979 edition of the Oklahoma Law Review, An editorial by Professor L. Lynn Hogue entitled "Institutional Review Boards and Consumer Surveys" was published in the American Journal of Public Health. Professor Steven Goldberg served as a faculty member of the Arkansas College of Advocacy held at the School of Law on May 13-17. An article on the College of Advocacy appears in this issue of the Lawyer. Pauline Ghidotti, Assistant to the Director of the Law Library, received an award for 10 years of service as a UALR employee at a ceremony in May. Professor Richard W. EHland of Arizona State University served as a visiting professor for the summer term. He taught a course in Decedents' Estates. Professor EHland is coauthor of the leading casebook in the field, Ritchie, Alford, and EHlands' Cases on Decedents' Estates and Trusts. Many faculty members attended a joint meeting of the faculties of law schools located in Arkansas, Kansas, Missouri, New Mexico, and Oklahoma which was held at Lake Eufaula, Oklahoma, May 6-7. Those attending were Professors Ellen Brantley, Ruth Brunson, Steven Goldberg, Ken Gould, Lynn Hogue, Earl Maltz, Arthur Murphey, John SheHey, Robert Walsh, Susan Webber, and Robert Wright. Assistant Dean Claibourne W. Patty's work with the Arkansas Institute for Continuing Legal Education is discussed in his separate article in this issue.
f-.
Trustee Stem, Professor Kurland, end Dean Walsh October 1979/Arkansas Lawyer/179
PLEASURE BOATS, SWIMMERS AND WATER SKIERS-RECREATIONAL ACCIDENTS ON NAVIGABLE INLAND WATERS by James A. George
In the last two decades, the inland waters of the United States have seen a marked increase in recreational boating, swimming, and water skiing. During the same period, the offshore oil industry has grown at a rate which defies description. This increase in maritime traffic, coupled with the development of many new manmade lakes, has resulted in an inevitable increase in accidents and personal injuries on our inland waterways. Many of these "inland" mishaps will give rise to lawsuits, and inland lawyers, who may have had no experience with Maritime Law, may suddenly find themselves caught in the tangled web of the Admiralty. Indeed, inland lawyers would do well to acquaint themselves with the rules of Admiralty because the maritime jurisdiction of the federai courts has been greatly expanded since our Constitution was first written. As one author put it, "the silver oar, long the historic symbol of Admiralty practice ... would hardly have been recognized fifteen years ago in a federal court in Nevada, Wyoming, or any of the other inland states not bordering on the Great Lakes or the Mississippi
River... the Admiralty Law has found its way upstream and is becoming an important field of law in all districts of the federal courts.'"
It is the purpose of this series of articles to assist in a determination of whether a given case involving inland waters or offshore drilling operations is within the Admiralty jurisdiction of the federal courts, the choice of courts in which suit may be filed, and the substantive law which governs when a case is in Admiralty. The article will be presented in a four part series, the first part of which will deal exclusively with pleasure boats, swimmers and water skiiers. One of the greatest explosions in recent years has been the recreational watercraft, swimming, and skiing boom. The 1975 statistical abstract of the United States indicates that in 1960, 295,000 recreational motor boats were sold in the United States and that by 1974 that figure had risen to 495,000;' also, by 1974, statistics indicate that there were 7,595,000 recreational boat
Lawyer James A. George of Baton Rouge is a noted trial lawyer and expert in maritime law matters. He has written numerous articles and has lectured frequently on admiralty litigation techniques, the Longshoremen and Harbor Workers' Act, maritime wrongful death, etc. Mr. George was one of the main speakers at the recent "Arkansas College of Trial Advocacy" program of the Arkansas Institute of Continuing Legal Education. He is a member ofnumerous professional organizations, including the Faculty, Hastings College of Advocacy, 1978-79. Mr. George is a fine example of an outstanding lawyer-<]iving freely of his time and talents for the betterment of the legal profession. This is the first of a series on maritime law by Mr. George for The Arkansas Lawyer.
lBOIArkansas LawyerlOctober 1979
motors in use. Because of the great increase in recreation on our inland waters there are inevitably more accidents involving pleasure boats, swimmers, and water skiers. The question now is whether these accident victims may assert maritime claims or whether they are limited to ourely state law claims. A. Pre-Executive Jet Prior to its decision in Executive Jet v. City of Cleveland,' the Supreme Court decided three cases dealing with pleasure craft in which it assumed jurisdiction without discussing the issue at all.' Thus it seemed that pleasure boat accidents on navigable waters were within Admiralty jurisdiction. However, following Executive Jet the question of jurisdiction over pleasure boats, swimmers, and water skiers is anything but clear as the lower Courts have not been in agreement in either their results or reasoning. B. Pleasure Boats On Inland Waters: The Fourth Circuit Court of Appeals has considered two cases involvinq
pleasure boats since Executive Jet was decided. The first, Richards v. Blake Builders Supply,' involved two pleasure boat accidents on navigable inland waters, one being the explosion of a motorboat being operated on Lake Gaston, a man-made lake partly in Virginia and partly in North Carolina, and the other involving the crash of a twenty-foot motorboat on Cape Fear River in North Carolina. Both of these inland waters were navigable and the craft in each case was being used solely for recreational purposes. In addition, there was no evidence of any substantial maritime commerce on either body of water. The Court, although expressing its belief that s.uch cases should not be within Admiralty jurisdiction, concluded that both cases were within Admiralty jurisdiction because Executive Jet was limited to airplane crash cases and had not oven路~IP.d the settled jurisprudence of the SLo preme Court prior to Executive Jet. Despite the absence of commercial shipping on these inland waters the Court did find that there was a maritime connection here, vessels in navigation, that was not present in the airplane crash in Executive Jet; thus these cases were within the rule announced in Executive Jet, having a sufficient nexus to traditional maritime concems. The Court was firm in its belief that the historical foundation upon which federal Admiralty jurisdiction had originally been based did not justify extending that jurisdiction to cases involving private pleasure craft as state courts should deal with such local matters. However, the Court felt compelled to follow what it considered the settled rule, that pleasure boat accidents on navigable waters are within Admiralty jurisdiction. The other case, Lane v. United States,' involved a crash between a pleasure craft and a sunken barge on an inland river. The Court had no difficulty upholding jurisdiction over this collision case because "collisions between vessels in navigation and submerged hulks of wrecked vessels are a traditional concern of Admiralty.'" Thus the Fourth Circuit, while upholding jurisdiction over pleasure boat cases, has made it clear that a significant relationship to traditional Admiralty concems is required:
The Eighth and Ninth Circuits have viewed the maritime nexus requirement of Executive Jet in a more expansive manner. In St. Hilaire Moye v. Henderson,' a case involving a boating accident on the navigable waters of the Arkansas River, the Eighth Circuit found that the locality plus test was met merely by operating a vessel on navigable waters as "the use of a waterbome vessel on navigable waters presents a case falling appropriately within the historical scope and design of the law of Admiralty.'" Thus the Eighth Circuit places the emphasis on the operation of a boat, regardless of its size or activity, on navigable waters. In the Court's view, that in itself is a traditional maritime activity justifying Admiralty jurisdiction, even if the vessel is not engaged in commerce, because its operation on navigable waters presents a potential danger to vessels which are engaged in commerce. However, the Ninth Circuit, in Adams v. Montana Power Company," required more than the operation of a boat on navigable waters before asserting Admiralty jurisdiction. The Court reasoned that since the purpose behind Admiralty jurisdiction was to promote the shipping industry through the development of a uniform body of law, there was no need to extend that jurisdiction to incidents occurring on bodies of water that are not capable of being traversed by commercial vessels. If some obstruction in an otherwise navigable waterway "has the practical effect of eliminating commercial Maritime activity, no federal interest is served by the exercise of Admiralty jurisdiction over the events transpiring on that body of water. "n The Court pointed out that navigability under the Commerce Clause of the U.S. Constitution was not always sufficient for purposes of exercising Admiralty jurisdiction. In Chapman v. U.S.,.. the Seventh Circuit followed the reasoning of Adams, denying Admiralty jurisdiction over another pleasure boat accident. The Fifth Circuit also requires something more for maritime nexus than the mere operation of a vessel on navigable waters. In Kelly v. Smith" a case involving gunfire from an island in the Mississippi River which wounded the man at the tiller of
a fifteen-foot outboard motor boat, the Court held that the fact that a vessel was involved was only one factor to consider in determining if a substantial maritime relationship existed, the other factors being the function and role of the parties involved, the causation and type of injury, and traditional concepts of the role of Admiralty Law. Because the party injured in Kelly was the pilot, the person responsible for safe navigation of the vessel, and the vehicle was a boat, the Court concluded that jurisdiction was present as the wounding of the pilot presented a danger to maritime commerce on the river. The Fifth Circuit has also decided two interesting cases involving accidents on a ferry. In Byrd v. Napoleon Ave. Ferry" Admiralty jurisdiction was sustained over a claim involving a car which careened off the ferry and into the river, while in Peytavin v. Government Employees Insurance Co." the Court held that a rear-end collision between two cars on a floating pontoon at a ferry landing was not covered by Admiralty jurisdiction because no connection with maritime activity, other than that the pontoon was involved in maritime commerce, could be found. Neither the cause of the accident, nor the injury (whiplash) had any maritime connection. Byrd was distinguished as having sufficient maritime connection because there the plaintiff was a passenger aboard a commercial ferry. rather than merely waiting for a ferry, and the negligence involved was that of a commercial ferry boat operator rather than that of the driver of a car. The test announced by the Fifth Circuit in Kelly v. Smith has been followed in at least three District Court cases. In two of these decisions, jurisdiction was sustained: Kayfetz v. Walker," a case involving a collision between two pleasure yachts in Long Island Sound, and Gilmore v. Witschorek," a case involving a col ision of two pleasure boats. In both cases, the fact that vessels were involved in a collision resulting from improper navigation was the determining factor. In the other case adopting the Kelly test, Clinton Board of Park Commissioners v. Claussen" the District Court dismissed a suit arising out of the drowning of an eleven year-old boy in Joyce Slough, a October 1979/Arkansas Lawyer/181
navigable body of water connected to the Mississippi River, because no maritime connection could be found between shipping and commerce and a boy who fell from a flotation platform while fishing; the Court viewed the case as a state wrongful death case that just happened to occur on navigable waters." Three other recent District Court cases deserve mention. In King v. Harris-Joyner Co.," a 1974 case involving the explosion of a pleasure boat on Lake Gaston, a navigable lake, the Court dismissed the suit for want of a maritime nexus, citing Executive Jet, while in Brown v. United States" a sufficient maritime nexus was found by the Court in a case in which a man was killed when the mast of his pleasure boat struck a low-hanging power line strung across the Colorado River. The Court considered the power line an "impediment to navigation" and thus the Executive Jet test was met. A District Court considering the issue, the Eastern District of Tennessee, in Roberts v. Grammer," relied heavily on Executive Jet in finding that federal Admiralty jurisdiction did not exist on the facts of that case. The Roberts case involved a collision between two small non-commercial pleasure boats on a small land-locked lake wholly contained within the State of Tennessee. In finding a lack of a significant relation to maritime activity the Court stated: "In this Court's opinion, in order to invoke the admiralty jurisdiction, the libelants must establish a significant relationship to traditional maritime activity...
It becomes apparent that the law of admiralty is specially designed for the shipping industry, not small pleasure boats... Based on Executive Jet, and the scholars mentioned therein, the Court is of the opinion that a significant relationship to traditional maritime commerce is met only when the persons or events involved have some connection to the shipping industry. The Court fails to find such a relationship when two small non-commercial pleasure boats collide on a small landlocked lake wholly contained within the State of 182/Arkansas Lawyer/October 1979
Tennessee. In these situations there is no need for a national uniformity of laws designed to provide special remedies and procedures to the shipping industry. The states provide adequate remedies and procedures for settlement of disputes arising from local, intrastate, small-boat accidents that have no connection with the maritime industry."" In another District Court case, Bendlin v. Virginia Electric and Power Co.,". The Court required the same maritime nexus as did the Roberts court, and accordingly refused to extend Admiralty jurisdiction. However, in Armour v. Gradler," another District Court case decided upon similar facts, held that Admiralty jurisdiction did apply since the accident occurred aboard a vessel while on navigable waters." C. Swimmers: Whatever difficulty the Courts have had with pleasure boats, they have had none with swimmers. This class of plaintiff is clearly out, both before and after Executive Jet. Prior to Executive Jet the Sixth Circuit adopted the "locality plus" test in holding that a plaintiff who dove from the side of a pier into a navigable lake and was injured oould not sue in Admiralty." Following Executive Jet, in Onley v. South Carolina Electric and Gas Co.," the Fourth Circuit found no nexus between traditional maritime activity and an injury to a person who dove from a dock into a navigable lake and struck a submerged boat ramp. Even control by the defendant of the water level of the lake was not enough to meet the "plus" test of Executive Jet. One case has upheld Admiralty jurisdiction in a suit against the Coast Guard. In Kelly v. United States," the plaintiff claimed that the Coast Guard negligently failed to rescue a drowning victim who fell following the capsize of a pleasure boat in Lake Ontario. The Court upheld Admiralty waters, a category which does bear a significant relationship to traditional jurisdiction, viewing the case not as a pleasure boat case but as one involving rescue operations on navigable maritime activity.
D. Water Skiers: Prior to Executive Jet, cases involving water skiers were held to be within Admiralty jurisdiction.'" However, in 1973, in Crosson v. Vance," an action brought by a water skier against the operator of a towing motor boat for injuries suffered on Maryland navigable waters, the Fourth Circuit relied on Executive Jet, where the Supreme Court explicitly disapproved of extending jurisdiction to cases involving water skiers, and held that "Admiralty jurisdiction does not reach a claim for personal injury by a water skier against the allegedly negligent operator of [aJ tow boat."" Crosson was followed by the District Court for the Eastern District of Tennessee in Webster v. Roberts." In another case involving a water skier injured on a navigable body of water, Jorsch v. Lebeau," an Illinois District Court remained in accord with the Crosson and Webster rationale in denying Admiralty jurisdiction. That Court reasoned that since the tortious conduct which caused the accident had no significant relationship to traditional maritime activities, there was no reason to try the case in Admiralty. In conclusion, it is obvious that the lower courts will continue to render irreconcilable decisions regarding Admiralty jurisdiction over pleasure boats unless the Supreme Court creates a uniform test of the applicability vel non of Admiralty jurisdiction in these cases. Unless the Supreme Court speaks against including pleasure boat cases in Admiralty, it appears that most lower federal courts will continue to include pleasure boat cases on inland waters within the Admiralty and Maritime jurisdiction of the United States. Further, it is clear that swimmers will be uniformly excluded from Admiralty jurisdiction and that most Courts will continue to exclude water skiers as well. FOOTNOTES
째It is to be noted that Ihis paper was submitted on July 11, 1979, and attempts 10 discuss significant developments occur-
ring prior to that date. The aUlhor gralefUlly acknowledges the competent and able assistance rendered by his associate, Han. Vincent J. DeSalvo, In the preparation of this paper.
1. McCaughan, Federal Maritime Jurisdiction Over Inland Intrastate Lakes, Wash and Lee Law Rev. Vol. 26:1 2. 1975 Statistical Abstract of U.S. at 215 3. Executive Jet Aviation v. City of Cleveland, 409 U.S. 249, 93 S.C!. 493 (1972) In Executive Jet, the U.S. Supreme Court held that Admiralty jurisdiction over an airplane negligence case did not exist merely because the tort occurred on or over navigable waters, and that claims arising from airplane accidents are not cognizable in Admiralty unless the wrong bears a significant relationship to traditional maritime activity. 4. Levinson v. Deupree, 345 U.S. 648 (1953); Coryell v. Phipp, 317 U.S. 406 (1943) Just v. Chambers, 312 U.S. 383 (1941) 5. 528 F.2d 745 (4th Cir. 1975) 6. 529 F.2d 175 (4th Cir. 1975) 7. Id. at 180 8. 496 F.2d 973 (8th Cir. 1974) 9. ld. at 979 10. 528 F.2d 437 (9th Cir. 1975) 11. ld. at 440 12. 575 F.2d 147 (7th Cir. 1978)
21. 403 F.Supp. 472 (C. D. Calif. 1975) 22. 432 F. Supp. 16 (E. D. Tenn. 1977) 23. ld. at 17 and 18 24. 449 F.Supp. 934 (E. D. N. C. 1978) 25. 448 F.Supp. 741 (W. D. Pa. 1978) 26. For a contrast in recent District Court decisions see Jacobs v. U.S., 1979 A.M.C. 660, No. 76-2, United States District Court. Eastern District of Kentucky, decided January 25,1979, upholding Admiralty jurisdiction over a pleasure boat accident in which a pleasure boat went over a damn owned and operated by the Army Corps of Engineers, and Richardson v. Foremost Ins. Co., (No. 76-280, M.D. La.) decided May 23, 1979, in which the Court declined jurisdiction over a collision between two boats, neither of which had ever been used in any commercial maritime activity.
27. Chapman v. City of Grosse Point Farms, 385 F.2d 962 (6th Cir. 1967) 28. 488 F.2d 758 (4th Cir. 1973); see also Rubin v. Power Authority of State of New York, 356 F.Supp. 1169 (1973) 29. Kelly v. U.S., 531 F.2d 1144 (2nd Cir. 1976) 30. Isaacson v. Jones, 216 F.2d 599 (9th Cir. 1954); King Y. Festerman, 214 F.Supp. 335 (ED. Tenn. 1963); Kaiser v. Travelers Ins. Co., 359 F.Supp. 90 (E.D. La. 1973)
13. 485 F.2d 520 (5th Cir. 1973) 31. 484 F.2d 840 (4th Cir. 1973) 14. 227 F.2d 958 (5th Cir. 1955) 32. 484 F.2d 840 (4th Cir. 1973) at 642 15. 453 F.2d 1121 (5th Cir. 1972) 33. 417 F.Supp. 346 (E D. Tenn. 1976) 16. 404 F.Supp. 75 (D. Conn. 1975) 34. 449 F.Supp. 485 (N. D. III. 1978) 17.411 F.Supp. 491 (ED. III. 1976) 18. 410 F.Supp. 320 (S.D. Iowa 1976) 19. See also Montgomery v. Harrold, No. 871905 (E D. Mich.) decided May 25, 1975, in which the Court held that a complaint alleging that decedent, while aboard a pleasure craft moored to a dock in the Detroit river. was overcome with lethal fumes and died of asphyxiation, did not allege a maritime cause of action. 20. 384 F.Supp. 1231 (ED. Va. 1974)
OYEZ-OYEZ (continued from page 175)
JERRY D. JACKSON Pine Bluff, has opened his law office at 520 W. Second Ave. JOHN McKNIGHT, formerly of Brinkley, has moved to New Iberia, LA. BRUCE R. LINDSEY, formerly with Wright, Lindsey & Jennings, has moved to Arlington, VA. ROBERT R. ROSS, formerly of Texarkana, AR, is now located in Little Rock. RUSSELL D. BERRY has joined CLAUDE JENKINS of DeWitt. JOHN W. UNGER, JR., has joined the Fayetteville law firm Jones & Segers. JOE VILLINES, RfCHARD PARKER, and CLAUDE JONES will share office space at 115 W. Central in Harrison, but no partnership has been formed. PHIL MEADOWS and FRANK ELCAN of Harrison have opened their new offices on Stephenson Ave. FRED C. KIRKPATRICK, formerly of Marshall, is now back in Harrison. Officers for the Arkansas Municipal Judge Council has been elected for the new year: FRED ENGELER, JR., Mtn. Home, president; CHARLES GOLDBERGER, Pine Bluff and ROBERT BATTON, Jacksonville, vice-presidents; RICHARD PROCTOR, Wynne, sec.-treasurer; with JAMES DAUGHERTY, Augusta SAM GIBSON, Benton, JOHN DRIVER, Marshall, and DAVID GRUBBS, Dumas as members of the executive committee. Central Ark. Legal Services has filled the vacancies on its reorganized Board of Directors, with, among others, attorneys WOODSON D. WALKER, ROBERT M. CEARLEY, KEN GOULD, ZIMMERY CRUTCHER, C. DOUGLAS BUFORD all of Little Rock; ALAN HUMPHRIES and HORACE J. FIKES of Pine Bluff; and JANET BURTNESS, Hot Springs.~ October 1979/Arkansas Lawyer/183
In gIemoriam They that deal truly ara His deHght. Proverbs 12:22
Jerry Thomu light 1935-1979 Jerry Thomas Ught, aged 44, a partner in the law finn of Friday, Eldredge & Clark, died June 26, 1979. Mr. Light was born at little Rock in 1935. His parents were Louis A. and Geneva Rapier Light. He had obtained a bachelor of science degree from the University of Arkansas at Fayetteville and later obtained a law degree from the same school. He was admitted to the Arkansas Bar in September 1959. He spent a year with the law finn of Eichenbaum, Scott & Miller before moving to the finn of Friday, Eldredge & Clark. Three years later he became a partner of the finn. Mr. Light was a tax and corporate lawyer with such clients as Jacuzzi Brothers and Allied Telephone Company. He was also general counsel and Board member of Capitol Savings & Loan Association. He was a member of Pulaski County, Arkansas and American Bar Associations. He was also a member of the First Presbyterian Church.
Besides his parents, he is survived by his son, Jerry T. Light, Jr. of UttIe Rock a student at Tulane University at New Orleans, and a brother, Robert V. Light of UttIe Rock who is also a partner in the Friday law finn.
cecil B. Nance 1900-1979 Cecil B. Nance, aged 78, the senior partner in the law firm of Nance, 184/Arkansas Lawyer/October 1979
Nance, Fleming & Wood In West Memphis, died May 3,1979. Mr. Nance was born in Poplar
Grove on August 17, 1900. He had attended Hendrix College in Conway before entering law school at the Uni-
versity of Memphis. He was admitted to the Arkansas Bar in 1926 and became licensed to practice law in Tennessee in 1930. He was admitted to practice before the United States Supreme Court in 1941. He practiced law in Marion from 1937 to 1951. At that time he was joined by his son, C. B. Nance, Jr., and they opened law offices in West Memphis. Mr. Nance was well known among the people of Crittenden County for telling stories from his colorful past. This quality prompted his daughter Kathertne to write a Story, "Confessions of a Grandfather", which was published a few years ago in Coronet Magazine.
An editorial In the West Memphis TImas eulogized Mr. Nance by saying: Cecil B. Nance was a man who lived life to Its fullest and shared his many experiences with his friends and associates. His pessing win leave a void in the everyday life of the many friends who koow and loved him. Mr. Nance was a member of the American legion. He was a World War I Veteran of the Anny Medical Corps. He was also a member of the Marion United Methodist Church and served on the administrative board. He was a past member of the Marion Rotary Club.
Survivors include his wife, Mrs. Virginia Essary Nance; two daughters, Mrs. Kathryn N. Hardin and Mrs. Dorothy N. Buchanan, bolh of Marion; his son, C. B. Nance, Jr. of West Memphis; two sisters, Mrs. Gladys Smith of West MemphIs and Mrs. Pauline Hendrix of Athens, Ala.; seven grandchildren and four greatgrandchildren.
Andrew D. Gregory 1950-1979
Andrew D. Gregory, aged 29, a McGehee lawyer who had recently been appointed to the McGehee School Board, died on June 11, 1979. Mr. Gregory was a native of McGehee and had graduated from Desha High School. He attellded the University of Arkansas at Monticello where he received a degree In p0litical science. He attended Georgetown University and later received a law degree from the University of Arkansas at Fayetteville.
He was admitted to the Arkansas Bar in 1978. He was a member of the Arkansas and American Bar Association. He was also a member of St. Mary's CatholIc Church in McGehee. The McGehee School Board had unanimously voted to appoint Mr. Gregory to fill the tenn of Sanvnle Denton who had resigned. Mr. Gregory Is survived by his parents, Mr. and Mrs. Prewitt Gregory and a flve-year old sister, Peggy, all of McGehee.
Edwin B. Keith 1907-1979 Edwin B. Keith, aged 71, the senior partner in the law firm of Keith, Clegg and Eckert and former mayor of Mag· nolia, died May 22, 1979. A graduate of the University of Arkansas Law School, Mr. Keith was admitted to the Arkansas Bar in 1932. He began his legal career in Magnolia, and in 1935 he became city attorney. In 1938, he was elected mayor of Magnolia. In 1941, Mr. Keith entered the Army. He was awarded the Silver Star, two Bronze Stars and numerous other decorations for bravery while fighting in Europe during World War II. He was a major when he left the Army at the end of the war. Mr. Keith is noted for having first developed a system for payment to owners of mineral rights to brine. He was also one of the originators of a desegregation plan for the Magnolia public schools. He served as chairman of the State War Memorial Stadium Commission and was a member of First United Methodist Church and the Lion's club. He was also a member of the Arkansas Bar Association where he served on various committees. Survivors include his wife, Mrs. Elsie Lou Keith; a son Edwin Keith, Jr., of Mena; two daughters, Mrs. Dotty Lou Buffington of De Queen and Miss Elizabeth Ann Keith of Magnolia; a sister, Mrs. B. G. Hubner of Plano, Texas; two brothers, A. W. Keith, Jr., of Texarkana and James Jernigan of New York; and four grandchildren.
Mr. Gathings was bom in 1903 in Prairie, Mississippi. He was the son of Melvill W. and Virgie Gamer Gathings. He was the youngest of eight children. He was a graduate of Earle High School, attended the University of Alabama and received a law degree from the University of Arkansas in
1929. Mr. Gathings was admitted to the Arkansas Bar 1929 and practiced at Helena, Earle and West Memphis. In 1934, he won a seat in the Arkansas senate and four years later was elected to the United States House. He served as representative of the First Congressional District from 1938 to 1968. While in the House, Mr. Gathings served on or was chairman of several key agricultural committees. He was instrumental in the passage of the cot· ton and rice sections of the Omnibus Agricultural Acts of 1958, 1962 and 1964. He also co-sponsored the bills that led to the construction of the bridges now spanning the Mississippi River at Helena and West Memphis.
Austin M. Cold. . 1895-1979 Austin M. Coates aged 83, a wellknown Attomey in Helena, died in January, 1979. Mr. Coates was admitted to the Arkansas Bar in 1917. He practiced law in Phillips County most of his life. DUring World War I, he served in the armed forces as a pilot in France. He formed the 206th National Guard Coast Artillery unit of which he was a commander. DUring the flood of 1937 he organized the refugee camp at Barton. He was a member of the American Legion. He was also a member of St. John's Episcopal Church and was the senior member of the Phillips County Bar Association. Survivors include his wife, Mrs. Christina Coates of Helena; one son, Austin M. Coates, Jr. of Jacksonville, Florida; two daughters, Mrs. Mary Catherine Sammon of Helena and Mrs. John Henry Norris of Columbus, Ohio, and three grandchildren.
At his retirement in 1968, Mr. Ga· things received citations for distinguished service from the Arkansas Farm Bureau, the National Association of Businessmen and from the city of West Memphis. United State Representative Bill Alexander announced his death at the opening session of the House Wednesday by saying "he died as he lived, serving the people". He was a member of the First Baptist Church of West Memphis, the Arkansas and American Bar Associa· tions, the West Memphis Rotary Club, the Arkansas Trial Lawyers Association, and was a Mason and a Shriner.
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1903-1979 Former United States Representa· tive E. C (Took) Gathings of West Memphis, a staunch conservative and strong advocate for agricultural interests in Arkansas, died May 2,
1979.
Survivors include his wife, Mrs. Tolise Kirkpatrick Gathings; a son, Joseph Royston Gathings of Austin, Texas; a daughter, Mrs. Tolise Norwood of Burke, VA.; a brother, William G. Gathings of Stuart, FLA; and three grandchildren.
FEDERAL TAX INSTITUTE CAMELOT INN, LITTLE ROCK November 15-16,1979
October 1979/Arkansas Lawyer/1 B5
TAX TIPS by Paul D. Williams Director, Little Rock District Internal Rev"nue Service
One Level Appeal and Processing of Unagreed Cases Since implementation of one levei of appeal, I would like to advise you that I am keeping close tab on the assurances the Commissioner gave regarding the level of service offered to taxpayers. From all indications, the level of service continues to be very good. However, there is one area of concern I would like to share with you and solicit your continued help and cooperation in striving for even more effective service. In the past, the Conference Staff served to "clean up" a lot of items and issues and secured factual documentation in an attempt to reach a mutually satisfactory disposition of the case. With the implementation of one level of appeal, District Conference is no longer available to perform the heretofore mentioned function. Therefore, it is necessary that a better job be performed at the examiner level before the case is submitted for further processing. In the past, the tax auditor and revenue agent sometimes submitted unagreed cases that were not fUlly developed, especially where there was a lack of cooperation, failure to submit timely verifications and documentations, etc. The Examination Division has issued instructions to the examiner and to the Review Staff requiring the retum of cases that are not complete. When a case is forwarded for administrative appeal, it will benefit the taxpayer, preparer and the Service if it is completely ready for a hearing. It has long been the practice of Appeals to return those cases where new information or facts haVing a material impact are presented for the first time at the hearing. We would hope, and I solicit your continued cooperation, that situations of this nature will be few and far between in the Little Rock District. Let me urge you to require the examiners to explain fUlly the rationale and basis for their proposal and position. On the other hand, I will appreciate your furnishing the examiners with the basis for your disagreements to their proposals so this can be included in their report which is forwarded for administrative appeal. The Review Staff will continue to grant, for a reasonable length of time, extensions for filing protest where the facts and circumstances warrant. An example of this would be where an accountant or attorney is engaged after the examination is substantially completed, or a new practitioner is brought into the case. I am sure that you share with me the fact that all cases should be examined and processed as expeditiously as possible. It will be appreciated if you will bring to my attention instances where this is not done....... tBG/Arkansas Lawyer/October t979
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(Editor's Note: Amicus Curiae is a publication of the Arkansas Judicial Department under Executive Secretary C. R. Huie and Editor Jean Langford. The following items were published in the June 1979 issue and, with permission, are reprinted here as being ofparticular interest to all members of the Arkansas Bar.)
REPORT: JUDICIAL ETHICS COMMITTEE The Judicial Ethics Committee was created by Act 653 of 1977 to investigate alleged violations of laws or canons of ethics and charges of alleged mental or physical disability of Supreme Court, Circuit, and Chancery Judges. Act 653 of 1977 empowered the Committee to prepare and file with the General Assembly a bill of charges, specifying any misconduct or disability with which an above named member of the judicial branch is charged, whenever the Committee believes there is probable cause for discipline or removal of such member of the judicial branch from his office, folloWing a fonnal investigation and fonnal public hearing conducted by the Committee. Members of the Committee are: Chainnan, Gaston Williamson, Little Rock; Secretary, N. Dale Price, Little Rock; Walter R. Niblock, Fayetteville; Don H. Smith, Pine Bluff; and Warren Wiltshire, Wynne. Since its organizational meeting on December 22, 1976, the Committee has received eight informal letters of complaint against Arkansas jUdges. Of the eight, one complaint involved a charge of alleged conflict of interest against a judge, but was found by the Committee to be based on erroneous facts and thus to be without merit. The Committee detennined that it had no jurisdiction to investigate another complaint since the judge named in the complaint had retired. The remaining six of the eight infonnal complaints lodged with the Committee were filed by disappointed litigants who did not like some decision on the merits oftheir case. These six cases were found to be beyond the jurisdiction of the Committee since no question of judicial misconduct or violations of canons of ethics was involved. The Judicial Ethics Committee has employed an investigator, N. David Harrell of Little Rock, on a per diem basis for investigation of fonnal complaints. Mr. Harrell, a private investigator, served as an agent for the Federal Bureau of Investigation from 1942 until his retirement in 1974. For 16 years before his retirement, Mr. Harrell served in the FBI's Little Rock office. The Chainnan requests that complaints against Supreme Court, Circuit and Chancery Judges be referred to
N. David Harrell, 4 Pinnacle Point, Little Rock, Arkansas 72205. Authorized by Act 416 of 1977, the Judicial Qualifications Commission, which is to investigate allegations of misconduct, of violations of laws or ethics, or of mental or physical disability of judges of Municipal, City, Police, or Justice of the Peace Courts, has not yet been activated. REPORT: COMMITTEE ON PROFESSIONAL CONDUCT During the year 1976, the Supreme Court Committee on Professional Conduct received 172 complaints against practicing attorneys in the state, according to the Committee's statistical data report for that year. The figure of 172 complaints received and recorded that required some action on the part of the Executive Secretary represents an increase of 24% over the number of complaints received in 1977. One hundred and thirty-nine complaints were received and recorded in 1977. Of the 172 complaints received in 1976, 70 written affidavits of complaint were filed with the Executive Secretary. Rfty-four of the 70 fonnal affidavits (or equivalent) of complaints were referred to the Committee as a whole, and the remaining 16 were either withdrawn by the complainant or never completely processed due to the desire or inactivity of the complainant. Following evaluation of formal complaints last year, the Committee issued eleven letters of reprimand, four letters of reproval, and two letters of caution to Arkansas attorneys. After Committee investigation, one attomey voluntarily surrendered his license to practice law in Arkansas for six months. As a result of disbannent suit by the Committee tried in 1977, the Circuit Court Judge rendered a judgement in 1976 of reproval against one attomey. Five formal complaints and 36 separate matters in various stages of processing were pending before the Committee at the end of 1976. The Arkansas Supreme Court Committee on Professional Conduct follows the Code of Professional Responsibility of the American Bar Association, supplemental to goveming statutes. The Committee is composed of one lawyer from each Congressional District and three from the state at large. Members of the Committee are: Chainnan, Clint Huey, Warren; Caldwell T. Bennett, Batesville; Jerry Winston Cavaneau, Searcy; Walter R. Niblock, Fayetteville; Russell Elrod, Siloam Springs; James W. Steinsiek, Blylheville; and Dale Price, Little Rock. Taylor Roberts of Little Rock serves as Executive Secretary of the Committee. His duties include receiving comOctober 19791Arkansas Lawyer/187
plaints, interviewing complainants and assisting them in preparing affidavits pursuant to Committee rules, and conducting investigations when circumstances warrant such action. MODEL STUDENT PRACTICE One hundred and thirty-nine applicants were certified by the Arkansas Supreme Court for representation of indigents under Rule 12 (Model Student Practice Rules) in 1977. Ninety'five were approved from January 1 to June 30, 1978; 44 were approved from July 1 to December 31, 1978. The Rules established by per curiam order on February 23,1970 allow students who have completed at least four semesters of law school, are certified as qualified by the law school dean, and are supervised by a lawyer, to represent indigents in civil and criminal cases under the Rules' guidelines. A qualified student may also represent the state in criminal matters with approval of the prosecutor and supervising attorney. In all instances, a written consent olthe client or prosecutor must be filed with the record of the case, and no student may receive compensation of any kind for his services. NEW "UPL" COMMITTEE By per curiam order on December 18, 1978, the Supreme Court established the Committee on the Unauthorized Practice of Law. The Committee is empowered to receive and investigate complaints relating to the unauthorized practice of law, to determine by formal investigation whether the alleged action or course of conduct constitutes such, and to pUblish an advisory opinion reflecting the decision of the committee to interested parties. In the event of a finding of unauthorized practice of law and a continuation of the action or course of conduct after receipt of the Committee's advisory opinion, the Committee is empowered to bring an action in the proper court seeking to enjoin the conduct deemed to constitute unauthorized practice of law within the statutes and laws of this state. The Supreme Court's per curiam order of December 18, 1978, provided that disobedience of any subpoena or a refusal to testify before formal Committee hearings may be regarded as constructive contempt of the Arkansas Supreme Court, and punishable by proceedings in that court. Members of the Committee are Otis Turner, Arkadelphia; Eugene Schieffler, West Helena; Zack Wilson, North Little Rock; Jerry Pinson, Harrison; Mel Orender, North Little Rock; Wayne Hartsfield, Searcy; and Jerry Fleming, Fort Smith.
WOMAN OF THE YEAR Judith Rogers continues to acquire well-deserved honors at a fantastic rate. Her accomplishments as the Juvenile Court Judge for Pulaski County are noteworthy. Her record for civic and professional activities would require too many pages to recount here. However, it should be noted that Judge Rogers is the current Chairperson of the Committee on Neglect and Abuse of the National Council of Juvenile and Family Court Judges. Her Committee, in a cooperative effort with the Exchange Clubs of America, provides a community-based abuse and neglect program across the Country, and also is concemed with related 188/Arkansas Lawyer/October 1979
legislation and trends. She is a Vice-President of the Arkansas Juvenile Judges Association. It is especially fitting that Judge Judith Rogers received the Pulaski County Bar Association Award in May, 1979 and the prestigeous Arkansas Democrat Woman of the Year Award, 1979. We add our congratulations.
STATE BAR OF TEXAS For those interested in the "trials and tribulations" of the so-called unified bar, the saga continues. While the State Bar of Texas has successfUlly (?) survived a Sunset Act, the State Bar of California is now under legislative attack. On June 11, 1979, the Governor ofTexas signed a new State Bar Act, ending a two-year "Sunset" review of the State Bar of Texas. The original Act, which created the State Bar in 1939, was amended by the 1977 Texas Sunset Act so as to terminate on September 1, 1979, unless continued by new legislation. It is interesting to note that the Texas Supreme Court on May 23, 1979 decided that it has the inherent power to regulate the practice of law in Texas, but apparently deferred to the Texas Legislature. The State Bar of Texas did not get by without major changes, e.g., over 150 lay persons have been added in the overall Bar functions; six non-lawyers will serve on its Board of Directors; each of the 47 local grievance committees will have one-third nonlawyer membership; expedition of complaint handling is mandated; and a new Grievance Oversight Committee of six lawyers and three nonlawyers was created to annually review statewide grievance procedures and report its findings to the Court. It is interesting to note that the complaint procedures received particular attention. The State Bar of Califomia, according to its President David Levy, is "in the vortex of a cataclysm", caught between those who believe that the bar is exceedirig its proper functions, and those who think it is paralyzed with indecision. Proposed legislation would prohibit the bar from using its membership dues for any function other than admissions and disciplinary matters. The ABA Bar Leader publication asks the question, "Will the California Bar go the way of Camelot?" The Arkansas Bar is so fortunate. It has the Arkansas Supreme Court, which through its Committees on Professional Conduct, Client Security Fund, Admissions and Unauthorized Practice of Law, handles the regulatory requirements; the Arkansas Bar Association, which provides all the services of a voluntary bar association; and the Arkansas Bar Foundation, which gives the added dimension of a tax-exempt organization to the organized bar.
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