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PUBLISHER Arkansas Bar Association Phone: (501) 375-4606 Fax: (501) 375-4901 www.arkbar.com EDITOR Anna K. Hubbard EXECUTIVE DIRECTOR Karen K. Hutchins EDITORIAL BOARD Anton Leo Janik, Jr., Chair Haley Heath Burks Luke K. Burton Dr. Frankie Martin Griffin Judge Brandon J. Harrison Ashley Welch Hudson Jim L. Julian Philip E. Kaplan Tory Hodges Lewis Drake Mann Gordon S. Rather, Jr. David H. Williams OFFICERS President Anthony A. “Tony” Hilliard Board of Governors Chair Paul W. Keith President-Elect Suzanne Clark Immediate Past President Denise Reid Hoggard Secretary F. Thomas Curry Treasurer Joseph F. Kolb Parliamentarian Aaron Squyres Young Lawyers Section Chair Eric A. Marks BOARD OF GOVERNORS James Paul Beachboard Arkie Byrd Chase Adam Carmichael Earl Buddy Chadick Sterling Taylor Chaney Brian M. Clary Grant M. Cox Bob Estes Buck C. Gibson Robert (Skip) L. Henry III Joshua D. McFadden J. Cliff McKinney II Chalk S. Mitchell Brandon K. Moffitt Brant Perkins Colby T. Roe Robert M. Sexton Amy Lee Stewart Albert J. Thomas III Andrea Grimes Woods H. Wayne Young, Jr.
LIAISON MEMBERS Judge Wiley Branton Patti Julian Judge Stephanie A. Casady Harry Truman Moore Judge John N. Fogleman Richard L. Ramsay Karen K. Hutchins Casey Carder Rockwell Sarah Jewell
The Arkansas Lawyer (USPS 546-040) is published quarterly by the Arkansas Bar Association. Periodicals postage paid at Little Rock, Arkansas. POSTMASTER: send address changes to The Arkansas Lawyer, 2224 Cottondale Lane, Little Rock, Arkansas 72202. Subscription price to non-members of the Arkansas Bar Association $35.00 per year. Any opinion expressed herein is that of the author, and not necessarily that of the Arkansas Bar Association or The Arkansas Lawyer. Contributions to The Arkansas Lawyer are welcome and should be sent to Anna Hubbard, Editor, ahubbard@arkbar.com. All inquiries regarding advertising should be sent to Editor, The Arkansas Lawyer, at the above address. Copyright 2017, Arkansas Bar Association. All rights reserved.
The Arkansas
Lawyer Vol. 52 No. 3
features
10 2017-2018 Arkansas Bar Association President Anthony A. (Tony) Hilliard By Anna Hubbard Cover photo by Joe Dempsey
18 2017 Legislative Session Review By Patti Julian 20 2018 ArkBar Legislative Timetable
22 Tilting the Balance of Power: Senate Joint Resolution 8 By Brian G. Brooks 26 SJR8: Some Economic Implications By Dr. Ralph D. Scott, Jr. 30 Presidential Executive Orders By Prof. Andrew M. Wright 38 Legal Aid of Arkansas Marks 50 Years
Contents Continued on Page 2
Lawyer The Arkansas Vol. 52, No. 3
in this issue ArkBar News
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2017-2018 ArkBar Officers
6
Book Reviews
15
Board of Governors and House of Delegates Report 16 Arkansas Bar Association Annual Meeting
34
Disciplinary Actions
41
columns President’s Report
Young Lawyers Section Report
48
In Memoriam
51
Classified Advertising
52
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Eric A. Marks
The Arkansas
Lawyer A publication of the Arkansas Bar Association
Arkansas Bar Foundation
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Anthony A. “Tony” Hilliard
Vol. 51, No. 1, Winter 2016 online at www.arkbar.com
Inside: Same-Sex Marriage Judicial Campaign Finance The Arkansas Supreme Court During World War II Arkansas LLCs Guardianships of Minors
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HOUSE OF DELEGATES Delegate District A-1: Andrew T. Curry, Susan K. Kendall, George M. Rozzell, Ryan Scott, Vicki S. Vasser-Jenkins Delegate District A-2: Earl Buddy Chadick, Leslie Copeland, M. Scott Hall, Brian C. Hogue, Sarah Coppola Jewell, Alan Lee Lane, Richard Kyle Lippard Joshua D. McFadden, John Pesek, W. Marshall Prettyman, Jr., Rick Woods Delegate District A-3: James A. Arnold II, Aubrey L. Barr, Michael Alan LaFreniere, Joseph Karl Luebke, Samuel M. Terry Delegate District A-4: Justice Paul Danielson Delegate District A-5: Johnny L. Nichols Delegate District A-6: John D. Van Kleef Delegate District A-7: Samuel J. Pasthing Delegate District B: Darryl E. Baker, Jordan Broyles, Carrie E. Bumgardner, Bart W. Calhoun, Tim J. Cullen, Thomas J. Diaz, Tony Anthony DiCarlo III, Jason W. Earley, Edie Ervin, Jesse J. Gibson, Shana Woodard Graves, Christopher Heil, Glen Hoggard, D. Michael Huckabay, Jr., Amy Dunn Johnson, Jamie Huffman Jones, Joseph F. Kolb, Victoria Leigh, Kathleen Marie McDonald, J. Cliff McKinney II, Jeremy M. McNabb, David Stockley Mitchell, Jr., Chad W. Pekron, John Rainwater, Scott Michael Strauss, Jonathan Q. Warren, David H. Williams, George R. Wise, Jr., Kim Dickerson Young, Heather Goodson Zachary Delegate District C-1: Roger U. Colbert Delegate District C-2: Michelle C. Huff Delegate District C-3: Robert J. Gibson, Hunter J. Hanshaw, Ryan M. Wilson Delegate District C-4: Kara Lynn Byars Delegate District C-5: Christopher Michael Bryant, Matthew Coe, Brett D. Watson Delegate District C-6: William Ellis Arnold III, Danny M. Rasmussen Delegate District C-7: Ginger M. Stuart Delegate District C-8: Kandice A. Bell, Margaret Dobson, Brent J. Eubanks Delegate District C-9: Katelyn Burch Busby, Lee Douglas Curry, Molly S. Shepherd Delegate District C-10: Amy Freedman, Joshua R. Thane Delegate District C-11: Sterling Taylor Chaney, Taylor Andrew King Delegate District C-12: Kurt J. Meredith, Brenda Sue Simpson Delegate District C-13: Brian M. Clary, John Andrew Ellis Law Student Representatives: Jenna Dale Poe, University of Arkansas School of Law; Taylor Pearson, UALR William H. Bowen School of Law
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The ABA Retirement Funds Program is available through the Arkansas Bar Association as a member benefit. Please read the Program Annual Disclosure Document (April 2017) carefully before investing. This Disclosure Document contains important information about the Program and investment options. For email inquiries, contact us at: joinus@abaretirement.com. Securities offered through Voya Financial Partners, LLC (member SIPC). Voya Financial Partners is a member of the Voya family of companies (“Voya”). Voya and the ABA Retirement Funds are separate, unaffiliated entities, and not responsible for one another’s products and services. CN1029-19104-1117 - 2015
ArkBar News ArkBar 2017-2018 Committee Chairs
ArkBar 2017-2018 Section Chairs
President Tony Hilliard appointed the following members to serve as committee chairs. Thank you to all committee members who volunteer their time, talent and expertise to the Association.
Administrative Law: J. G. (Gerry) Schulze Agricultural Law: Matthew Vandiver Alternative Dispute Resolution: Jennifer Taylor Business Law: Grant M. Cox Civil Litigation: Matthew Kezhaya Civil Rights Law: Renae Ford Hudson Construction Law: J. Don Overton Corporate & In-House Counsel: Matthew David Mitchell Criminal Law: Brian M. Clary Debtor/Creditor: Kimberly D. Burnette Disability Law: Deborah L. Hardin Elder Law: M. Gayle Corley Environmental Law: Michael B. Heister Family Law: Natalie J. Dickson Financial Institutions: William Lance Owens Government Practice: David J. Sachar Health Law: Johnnie L. M. Matlock Hispanic Lawyers: J. G. (Gerry) Schulze Intellectual Property: Joseph Davidson Calhoun International & Immigration Law: Kathleen M. McDonald Juvenile Justice & Child Welfare: Melody Peacock Barnett Labor & Employment: Louise Elizabeth Tausch Natural Resources Law: Kathryn Whaley Searcy Probate & Trust: J. Nicholas Livers Real Estate Law: J. Cliff McKinney II Section of Taxation: Blake D. Lewis Solo, Small Firm & Practice Mngt.: J. Don Overton Tort Law: William Arthur Buckley Workers’ Compensation Law: Steven R. McNeely Young Lawyers’ Section: Eric Andrew Marks
20/20 Commission: Hon. Audrey Riemer Evans and Howard Baker Kurrus Annual Meeting: Judge Mary Spencer McGowan Arkansas Bar Commission on Diversity: Niki Trang Cung and Lee P. Rudofsky Arkansas Bar PAC: Bob Estes Audit: Robert S. Jones Continuing Legal Education: Dr. Casey Carder Rockwell Editorial Advisory Board - The Arkansas Lawyer: Anton Leo Janik, Jr. Editorial Advisory Committee for Handbooks and Legal Forms: Jillian Herrick Wilson Finance: Joseph F. Kolb Governance: J. Cliff McKinney II Judiciary: Richard F. Hatfield Jurisprudence and Law Reform: Tom Curry LAMP Task Force: Brenda Sue Simpson Law Related Education: Beverly I. Brister Law School: Harry A. Light Legislation: Aaron L. Squyres Mock Trial: Anthony L. McMullen Past Presidents: Brian H. Ratcliff Personnel (Arkansas Bar Association): Mark W. Hodge Practice Closure Task Force: Stark Ligon Professional Ethics: Brad L. Hendricks SJR8 Task Force: Justice Annabelle Imber Tuck Uniform Laws: Brant Perkins Website and Social Media: William Andrew Gruber Women in the Profession: Heather Goodson Zachary
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ArkBar News
Oyez! Oyez!
Filing Petitions Due October 31, 2017 For 2019-2020 ArkBar President
ACCOLADES Retired Judge Mike Kinard was awarded the Lifetime Achievement Award from the Southern Arkansas University Alumni Association. Bill Waddell, partner with Friday, Eldredge & Clark, received the 2017 American Bar Association’s Pro Bono Publico Award. Arkansas Business selected the following members for inclusion in the 2017 “40 Under 40 Class:” Adrienne Baker, Wright Lindsey Jennings, Jamie Huffman Jones, Friday Eldredge & Clark, and Zachary Steadman, Mitchell Williams Selig Gates & Woodyard PLLC. Judge James O. Cox, Judge Donald Goodner, Judge Van B. Taylor and Judge Billy Roy Wilson were recently honored as the 2017 Distintuished Alumni of Waldron High School.
APPOINTMENTS AND ELECTIONS Karen K. Hutchins, Executive Director of the Arkansas Bar Association, will serve as the 2017/2018 President-Elect for the National Association of Bar Executives. Janet L. Bledsoe, Assistant Director of the Dependency Neglect Attorney ad Litem Program, recently obtained certification as a Child Welfare Law Specialist. The Arkansas Access to Justice Foundation Board announced that the following attorneys have been appointed to the board: Representative Sarah Capp, Capp Law Firm, J. Cliff McKinney II, Quattlebaum, Grooms & Tull, PLLC, and Kristin Pawlik, Keith, Miller, Butler, Schneider & Pawlik. Governor Asa Hutchinson announced that J. Cliff McKinney II has been appointed to the Commission on Uniform State Laws.
WORD ABOUT TOWN Conner & Winters announced that Todd P. Lewis of Fayetteville has been elected to the firm’s Executive Committee. Ecoark Holdings, Inc. in Rogers named Stephen Dacus as general counsel. Dover Dixon Horne, Little Rock, announced that Adrienne Griffis joined the firm’s family law practice. Jason Wales and Christy Comstock announced the formation of Wales Comstock Trial Lawyers in Fayetteville. Mitchell Williams Selig Gates & Woodyard, P.L.L.C., announced that Sainabou Sonko has joined the firm as an attorney in the Litigation Practice Group. Please send Oyez announcements to ahubbard@arkbar.com.
Retired Law Library Finds Home
New Statute of Limitations Handbook Available The Arkansas Bar Association Young Lawyers Section recently released an updated Guide to Arkansas Statutes of Limitations. ArkBar members can login and download a complimentary copy. Thank you to the Young Lawyers Section and the many attorneys who volunteered their time to update the guide. https://www.arkbar.com/for-attorneys/ publications/statutes 8th Edition Revised May 2017
In April 2017, William F. Sherman made a unique donation to the Arkansas Supreme Court Library, giving to the library bound volumes of the Supreme Court Reports dating from 1837–2002. Sherman, who recently closed his office in Little Rock, is in his 53rd year of law practice.
New forms updated regularly. 24 new probate forms!
The President-elect of the Arkansas Bar Association is elected by the vote of the entire membership of the Association. The position is rotated each year among the three state Bar districts. The next president-elect designee will come from Bar District B. Nominating petitions must be filed with the secretary at the Association’s office no later than October 31, 2017. The petitions must be signed by at least 75 Association members. The petition signers must include at least 25 signatures from Association members residing in each of the three state Bar districts of the Association. The member elected this fall will assume the office of president-elect at the June 2018 Annual Meeting in Hot Springs and will become the Association president in June of 2019.
Prepared By Arkansas Bar Association Young Lawyers Section
www.arkbar.com/arkbardocs/home
THE cloud-based, ecommerce marketplace for automated legal document creation Vol. 52 No. 3/Summer 2017 The Arkansas Lawyer
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Meet the 2017-2018 Arkansas Bar Association Officers The Arkansas Bar Association began its 2017-2018 Bar year on July 1, 2017. President Tony Hilliard and the ArkBar officers welcome you and thank you for your membership.
The voice of the Arkansas lawyer
President
President-Elect Suzanne Clark
The Arkansas Bar Association is your statewide professional network—your connection to over 5,700 lawyers across the state.
Anthony A. “Tony” Hilliard Ramsay, Bridgforth, Robinson and Raley LLP, Pine Bluff
Clark Law Firm, PLLC Fayetteville
Secretary Tom Curry
Treasurer Joe F. Kolb
McMillan, McCorkle, Curry & Bennington, LLP Arkadelphia
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j.kolb Little Rock
www.arkbar.com
Board of Governors Chair Paul Keith
Immediate Past-President Denise Reid Hoggard
Gibson & Keith Monticello
Rainwater Holt & Sexton Little Rock
Parliamentarian Aaron Squyres
Young Lawyers Section Chair Eric A. Marks
Wilson & Associates, PLLC Little Rock
White & Marks PLLC, Arkadelphia
PRESIDENT’S REPORT
Tag—We’re It Anthony A.”Tony” Hilliard
Every lawyer sworn in as president of the Arkansas Bar Association vows to support, protect and defend the Constitution of the United States, of the state of Arkansas, and of the Arkansas Bar Association. Arkansas Senate Joint Resolution 8 (SJR8), passed in the General Assembly this session, will appear on the November 4, 2018, election ballot. SJR8 seeks to amend the Arkansas Constitution by giving the legislature authority to set all court rules. Currently, only 16 out of 134 legislators are lawyers, but this legislature wants to take over court rulemaking. I reject any contention that the court rules should be set by the legislature without any controls, inputs or public comments. We must take a stand now and we need to be ready. We are the Arkansas Bar Association and we are the voice of Arkansas lawyers. SJR8 is in fact a blatant usurping of the fundamental separation of powers in our constitution. Millions will be spent on the campaign to advocate for SJR8 which, if passed, would ultimately affect the practice of law. We can agree to disagree here, but while the proponents of SJR8 think it is good for business, we all need to ask instead, what is the best way to seek liberty and
justice for all? As we’ve seen in the past and in other countries, what some people think is good for business is not necessarily best for the economy or liberty and justice for all. Retired Justice Tuck is chairing our task force on the effort. The task force is beginning to develop its plans now. No matter what the task force decides, I know the only way we will defeat SJR8 is with you, sitting across from your friends in Rotary, Lions Club, church or your child’s baseball game and explaining your position on the proposal. You are the best opportunity to sway the vote. We also have other issues we need to address as the Bar Association. We are on much stronger financial footing this year. Our revenues exceeded expenses, including depreciation, by over $120,000 for the year ending June 30, 2017. We still have a long way to go toward building sufficient reserves to ensure we can fix what breaks at the Bar Center and to help with unexpected financial challenges that will come. We need to put a stronger emphasis on Sections this year. Specifically, I’ve asked that more Sections be directly involved in developing the CLE tracks related to the Section’s practice area. I would like for each major section
to develop a CLE tract this year, including bringing in national speakers if appropriate. Each Section also needs to ask its members if there are changes in the Arkansas Code or other legislation that is needed in that specific area of practice. Any proposed legislation to be presented by the Bar Association to the Arkansas legislature must be submitted to the Jurisprudence and Law Reform Committee by January 31, 2018, and then forwarded to the House of Delegates for ultimate approval. We need to do a better job of coordinating efforts with local bar associations on judicial races and SJR8 in 2018. As the state bar association president, I’ll appoint a task force that will hold forums for the Court of Appeals and Supreme Court races (if any) that will give all judicial candidates equal time to introduce themselves to the community. The format used will ensure the forums are unbiased. Specifically, as stated in my acceptance speech, I call on each local bar association to work with civic clubs to host forums with local judicial candidates. The local bar associations can use the same forum format for local judicial races. Civic clubs may host these types of candidate forums without risking their nonprofit
Tony Hilliard is the President of the Arkansas Bar Association. He is a partner with the Ramsay, Bridgforth, Robinson and Raley, LLP firm in Pine Bluff.
status so long as the forums are neutral. Additionally, I encourage local bars to hold forums inviting all members of the community to discuss SJR8. I am confident that when we put this to the light of day we will win this fight and defeat SJR8. Finally, if you’ve thought about running for the Arkansas legislature or other political office, please run. Years ago when we were forming the Arkansas Bar Political Action Committee a reporter from the Arkansas Democrat Gazette called and asked why we formed the PAC. When I explained that we felt it would be very beneficial to have more lawyers in the legislature, regardless of their political affiliation, the reporter asked if I thought lawyers would make better legislators. I answered, “Yes. I think we significantly improve the odds when we have persons well trained in the law so directly involved in making the laws.” The Arkansas Bar Association is the best place for you to give back to your profession. It is your duty to be a part of this. It is our duty, our obligation, our time to say, “Tag, we’re it.”
Vol. 52 No. 3/Summer 2017 The Arkansas Lawyer
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YLS REPORT
How to Kick Back and Get Involved Eric A. Marks Eric A. Marks is the Chair of the Young Lawyers Section. He is an attorney with White & Marks PLLC in Arkadelphia.
I watched in awe as the stately elder attorney strolled into the courtroom, cane clicking on the hundred-year-old hardwood floor; without much fuss, he settled himself in a chair nearest the defendant’s table. With an air that defied question, he promptly kicked the chair backwards and tossed his leg up on the table as if he were lounging at his home. My awe stemmed from the fact that all of this transpired as circuit court was in full swing, the judge on the bench, and the routine bustle of a busy docket day on-going. As a newly-licensed attorney attending court for the first time, uncontested divorce prove-up questions clutched in my clammy hand, I was incredulous at what I perceived as such a casual and borderline disrespectful entrance to court. I was further confused as to why it was not met with immediate gasps from others and anger from the presiding judge. As it would turn out, I only had half of the story. You see the lawyer had experienced multiple issues with his back and hips, and thus was afforded the latitude to sit how he pleased. Additionally, he had accomplished so much in his storied career that he had gained a certain degree of deference unrelated to his very real health issues. The local members of the bar knew him, he was well liked by his peers and judges, and he had been involved
in his local bar for so long that his behavior did not cause an eye to blink. I was fortunate to get to know that lawyer in the course of my practice. His incredible story included him being a veteran, former pro football player, and practicing lawyer in Arkansas for many decades. The thing that stuck out the most as I got to know him was that for every “war story” I heard about him, I heard two stories about how he had done something within the bar or the community to help others. Sitting here now, years removed from that memory, I chuckle to myself at how it exemplifies the fact that being a young lawyer and earning your stripes is so much more than just learning the law itself. It is about taking the time to become involved in your local and state bar community. It can be enriching. Of course it takes time to learn about others or become involved in activities that afford those opportunities. Involvement. Many reading this article see the word involvement, but it oddly reads “commitment.” Why then should busy lawyers surrender their valuable time to become involved in activities and social events that create chances to meet fellow bar members? The answer can be as simple or complex as you desire. It can
expand your practice and knowledge, and help you grow as a lawyer. Alternatively, it can be fun, entertaining, and a great way to develop contacts that can lead to one of the most important things all of us value—business. I suspect that any lawyer who has practiced long enough will tell you that some of his or her best cases come from peer referrals. I can say from experience that becoming involved and taking the time to get to know that older lawyer led to numerous phone calls from potential clients he sent my way. It is easy to pass on chances to meet and network with your peers or become involved, but the benefits are certainly there in more ways than one for those who take the time to do so. I am happy to say that many young lawyers took the recent opportunity to connect and hear a few stories of their own at our YLS reception, which was held at the Annual Bar Meeting in Hot Springs. In addition to being well attended and received, it provided ample opportunity for attorneys of all ages and practice areas a chance to interact on a professional and social level. This year, we plan to host numerous events across the state to promote membership in YLS but most importantly, involvement in the Arkansas Bar Association. I am happy to say that these types of events are
successful, but only because of the hard work of young lawyers who sacrifice their time to ensure that success. Looking at the upcoming year, we will continue the Wills for Heroes events across the state and continue the “Managing Student Loan Debt” at both law schools, both of which have been very successful. I cannot mention either of those events without acknowledging Caitlin Savage and John Rainwater, both of whom personify the involvement I mentioned and are responsible for the success of those events this past year. We also plan to host a deposition clinic and provide numerous other opportunities for lawyers of all ages to become involved. I hope I am fortunate enough to kick my leg up one day and reflect on a career as rich as my friend and fellow lawyer. I know his career was in large part due to his skill, but also to his commitment to invest time in others and to be involved in activities that exceeded his daily practice. I encourage you all to take a minute, check out the Arkansas Bar Association website or the YLS Facebook page, or contact one of the YLS Executive Counsel members in your area for a chance to become involved. I look forward to meeting many of you this coming year.
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2017-2018 Arkansas Bar Association President
Anthony A. “Tony” Hilliard
Article by Anna Hubbard Photo by Joe Dempsey 10
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www.arkbar.com
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nthony A. “Tony” Hilliard was sworn in as the 120th president of the Arkansas Bar Association on June 16, 2017. His breadth of experience will benefit the association that represents a group of over 5,700 diverse lawyers. Although Tony proudly represents the Bar Association’s district C, he has spent his lifetime living and working alongside Arkansans throughout the state. Currently the tax lawyer at the Ramsay, Bridgforth, Robinson and Raley, LLP firm in Pine Bluff, Tony began his career as a certified public accountant. He left his job as the Vice President of Finance and Controller of a major defense contractor in Magnolia, Arkansas, to enroll in law school and follow his wife Mary’s ministry to a new church in England, Arkansas. As the son of a preacher and husband of a preacher, he has lived in almost 20 cities and towns in Arkansas. Having been exposed to lawyers who inspired him throughout his lifetime, Tony has seen the valuable role that lawyers play in the community. When he told his mother he was enrolled in law school after a corporate finance career, his mother asked, “does the world really need another lawyer?” He has attempted to answer “yes” to her question ever since. His dedication and commitment to his community is evident by his long list of civic, religious and non-profit volunteer activities. He has always worked hard to counter the negative stereotype many people associate with lawyers and to promote a positive public image of his profession. His first time in a courtroom was as a Boy Scout in West Helena with family friend Gene Scheiffler. He credits Glenn Vasser and his wife Judy for getting him interested in the legal profession when he was on a junior high debate team that Judy coached. Tony said that Judy provided him with the support and encouragement that convinced him he could do anything. Judy said that she taught Tony during her first teaching assignment in Fayetteville. Glenn was in law school at the University of Arkansas at the time. As part of the speech class, she had students on debate teams as well as theater productions. To prepare for a college-level debate tournament, Judy took a group of students to the law school library where Glenn helped them with research. “Tony had the energy and the desire to do whatever I asked him to,” Judy said. “Plus he had the intelligence—a lot of intelligence. He was the ideal student. He was very talented, eager to please, eager to do. I am so proud of him.” Tony worked at Simmons First National Bank when Louis Ramsay was CEO. “He led with humor, humility and wisdom,” Tony said. “I wanted to be like him when I grew up. I had the unique opportunity to know Louis Ramsay in many capacities, first as an employee then as an officer at Simmons when Louis was Chairman there, then his associate, and finally as his partner and his family’s lawyer.” Tony has been friends with Little Rock attorney Gary Speed since high school. They became friends through the United Methodist Church in the early 1970s, which continued on as they attended Hendrix College. “Tony has always been a happy, energetic guy, and the source of that happiness has been his deep faith in God and his love for others. He never hid his light under a basket, but let it shine for others to see. He has always loved people.” Their friendship has caused them to cross paths many times over the years, and Gary was not surprised to learn that Tony had been elected president of the Arkansas Bar Association. “Tony has risen to the top of every organization he has joined. He will do an excellent job and inspire others.”
Tony comes from a long line of members of the Ramsay, Bridgforth, Robinson and Raley, LLP firm who have served as president of the Association: W.F. Coleman (1920-21), N.J. Gantt, Jr. (1940-41), Louis L. Ramsay, Jr. (1963-64), E. Harley Cox, Jr. (1979-80), and Rosalind M. Mouser (2008-09). Past Association President Rosalind Mouser worked with Tony at the Ramsay, Bridgforth firm before she joined Simmons First National Corp. of Pine Bluff. “Tony’s service to the Arkansas Bar Association continues the tradition of the Ramsay, Bridgforth Law Firm of providing servant leaders to the lawyers of Arkansas. As the sixth lawyer from the firm to serve as President, he represents not only the firm, but Pine Bluff and Southeast Arkansas, as we continue to provide statewide leaders who exemplify integrity and trust.” Tony was born in Rison, Arkansas, and subsequently lived in Fort Smith, West Helena, Fayetteville, and Cabot where he graduated from high school. He graduated from Hendrix College in 1978 with a BA in Economics and Business with an emphasis in accounting. Growing up itinerant, Tony learned that the best way to meet kids was through sports, so he has always been athletic. He also wanted to be an astronaut and began running as a kid because he knew that astronauts ran for fitness. “My only ambition from kindergarten through 8th grade was to be an astronaut,” Tony said, “but in the 8th grade I passed the maximum height so my dreams were crushed.” He continued running in junior high and high school and some in college before an injury caused him to join the swim team at Hendrix as well and ended up doing better at swimming competitively than he did running. “At Hendrix, it wasn’t cool to be in athletics, so I was in athletics,” Tony joked. “I often say that a good description of my athletic ability is that if it requires hard work and the ability to endure lots of pain I tend to win. If it requires hand-eye coordination, I’m dead last.” During his senior year of college he had to choose between taking the CPA exam or the LSAT. Although he always wanted to go to law school, he decided to take the CPA exam and work for a few years instead of going straight to law school. He worked for more than 10 years in banking and corporate finance before finally making it to law school. “I kept looking over there [law school] and trying to figure out how to get there,” Tony said. “Things were going well, we were having kids, and I had a good job at Amfuel in Magnolia.” He recalled working on a business buyout deal and being consumed with the excitement of the mergers and acquisitions work and decided he wanted to do more work like that as an attorney. He made the commitment to finally take the LSAT and began the process of pursuing his dream of going to law school. At the time, he was living in Stephens, Arkansas, where Mary was the pastor of a small church and he was the controller at Amfuel. Mary was offered a move to a church in England, Arkansas, so they made the move there and Tony started law school. “People were surprised I was leaving my job where I made three times as much income as my wife so she could move to get a 10% raise,” Tony joked.
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ecause of his work experience in the high-pressure corporate world, Tony did not get as overwhelmed with the schoolwork as some of his fellow students at law school did. “I recall from the first semester of law school, a guy was so stressed out that his hair turned all white,” Tony said. “And here I am just walking around with a silly grin on my face like this is the best thing in the world, Vol. 52 No. 3/Summer 2017 The Arkansas Lawyer
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From top: Tony at his law firm Ramsay, Bridgforth, Robinson and Raley, LLP in Pine Bluff; Tony, Mary and Chief Justice Dan Kemp at the swearing-in ceremony.
I’m finally here! One of the other classmates asked me why I didn’t seem to understand the stress that we were under. I said, ‘I just left a job where if I understate the financials and the banks look at that, there is a good chance that 700 of my friends and I are going to be out of work. If I overstate the financials and the banks find out, there is a good chance that I’m going to jail. If I state the financials just as they are there is still a good chance that 700 of my friends and I will be out of a job. On top of that, we had all this classified stuff so there is a good chance if I say the wrong thing I go to jail. Every day there was a chance that I could be out of work or go to jail.’” “What’s the worst thing that can hap12
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pen to me while I’m in law school? I flunk out,” he added. “Then I go back to being an accountant making twice as much as I would make my first year out of law school. So tell me again, where’s the stress? In some ways I didn’t change careers; I just took the next step up. So for me it was a continuing natural progress to my career as opposed to a career change.”
T
ony graduated from UALR School of Law in 1996 and served as Associate Law Review Editor. He earned a Masters of Law in Taxation from Southern Methodist University School of Law in 1998. Prior to law school he graduated with
highest honors from the American Bankers Association School for Bank Administration at the University of Wisconsin. Tony and Mary married in 1982 after first meeting at Lakeside Methodist Church in Pine Bluff when Mary was in seminary at SMU. Tony said he knew she was the one the first time he saw her. Being the son of a United Methodist preacher, he admitted he had cold feet about marrying a preacher and becoming itinerant again. Thirty-five years later, they are starting to see some more stability in their residence. Mary is starting her sixth year as senior pastor at Asbury United Methodist Church in Little Rock. They have two daughters, Kara and Katie, both of whom live in Fayetteville with their families including one granddaughter, Laine Austin Tacito. Tony has always been active in the Methodist church, singing in the choir and teaching Sunday school. He helps Mary with her Sunday morning contemporary service by running the video equipment but stays away from the “big committees.” “There are certain rules for being a preacher’s husband,” he said. “One of the rules I live by is that the preacher and her husband should stay as far away from the thermostat and money as possible.” Tony’s hobbies include canoeing, fishing and duck hunting. He and Mary enjoy bicycling together and were able to bike in Alaska on a recent trip to celebrate their 35th wedding anniversary. They have taken numerous canoe trips with the family and have floated most of the rivers in Arkansas. He is the “wagon master” of the annual guys’ trip started by his father when Tony was 10. This year was the “50th annual Hilliard Harmony he-man-no-girls-allowed canoe trip.” His hobbies also included playing with a chain saw, front-end loader and brush hog until he and Mary recently sold their home with 29 acres and a pond. He loves to cook on the grill and tinker with building things, including a full-size barn. “I’m hyper, but I do get a lot done.” Tony was the volunteer chancellor for the Arkansas Conference of the United Methodist Church for seven years. “It was extremely fulfilling work in many ways,” he said. He worked closely with Bill Waddell in this role. “As a joke, the one thing that I’m better at than Bill Waddell, is delegating. And I know why—Bill Waddell was very hesitant to delegate because he clearly understood everything and knew it better than anybody else. On the other hand, it would be a distant dream that I
would know it better than anyone else.” Bill Waddell said, “I have high hopes for Tony’s term as bar president. He is the right person to serve as the ambassador of our profession and will build positive relationships everywhere he goes. That is already his legacy from his work in the bar association, his law practice, and in the church. His new work this year will leave that same legacy in us, and the Arkansas bar will be better for it.”
T
ony is committed to the Arkansas Bar Association and its members. His leadership has been a great value to the association over the years. He has served as chair of the Board of Governors and was a longtime member of the House of Delegates. He served as secretary of the Arkansas Bar PAC for five years and as chair of the Audit Committee for four years. He was a member of the Legislative Task Force, Specialization Committee and Annual Meeting Task Force. The Bar Association honored him with the Charles Carpenter Award for his extraordinary service to the Association. The Arkansas Society of CPA’s awarded Tony the 2006 Mac Angel Discussion Leader of the Year Award. He has taught CLE and CPE courses in tax, probate and trust. His sense of professionalism is surpassed only by his passion for his community. The Association honored him with the Lawyer Community Legacy Award in 2006 for recognition of his outstanding volunteer public service. He served as past chair of the Mount Eagle Christian Retreat Center Board of Trustees, past president of the West Pine Bluff Rotary Club, and treasurer of the Pine Bluff Community Foundation Board. He served on the Board of Directors of the Southeast Arkansas Arts and Science Center and helped start the Academics Plus Charter School at Maumelle where he served as the first president. Tony recognizes the impact of good deeds by Arkansas lawyers, and continually lifts them up and encourages them to do more. During his acceptance speech, he commented on the selfless work of many Arkansas lawyers, including Justice Robin Wynne, Amy Johnson, and retired Justice Annabelle Tuck for their work on access to justice. “Your work represents the change we must have to ensure liberty and justice for all, including the least, the last and the lost. The world needs a lot more lawyers like you.” “I witnessed a lawyer speak at a church
From top: Tony and Mary; Katie Tacito, Mary, Tony, Kara and Clay Willis, Laine Austin and Channin Tacito (Photo by Steph Smith Weddings) where years earlier he was blocked from attending because of his race,” Tony said. “Instead of expressing anger, he explained he could only understand God’s love because he experienced his mother’s love. The world needs another lawyer like Harold Flowers.” He also mentioned that the Arkansas Bar Foundation and the Arkansas Bar Association honored Jeff Rosenzweig with a Special Award of Merit this year for his distinguished services and accomplishments in the legal profession. “Most of us dreamed of being a lawyer after reading To Kill a Mockingbird, yet like me, most of us have not been near a criminal trial. Jeff Rosenzweig, on the other hand, has the courage to work on one of the
toughest death penalty appeals case. He has the conviction and persistence to work with the governor and legislators to improve the process. The world needs another lawyer like Jeff Rosenzweig.”
T
hrough his selfless commitment to serving his community and the legal profession, Tony is doing his part to improve the public’s image of lawyers. While his humble and self-deprecating nature would never let him admit it, he has become the lawyer who other lawyers aspire to be. He has achieved the much sought-after elusive balance in his roles as a lawyer, family man and public servant.
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Book reviews
Distinguishing the Righteous from the Roguish: the Arkansas Supreme Court 1836-1874
Arkansas Legal Research, 2d ed.,
Long time Mena attorney and former judge, professor and law school Dean Jake Looney has written a fascinating and informative book detailing the work of the Arkansas Supreme Court during a tumultuous period in Arkansas history. The book is both a thoroughly researched and documented trove of information for the legal researcher, and a good read sprinkled with humorous and bizarre details for any history buff. The book traces the major role played by the Arkansas Supreme Court in the state’s early economic, social and political development, concluding that the Court used the law to accommodate the interests of the elite class rather than promote economic growth and social change. The study is broad in coverage, broken down into chapters which analyze both the Court’s opinions themselves and the settings from which they arose. Individual chapters address land titles, banking controversies, slavery, and family and criminal law, as well as unique issues resulting from secession, civil war, and Reconstruction. Not only does the book contribute to the store of historical information, but also illustrates the living, breathing context in which legal principles are born and develop. What appear to be abstract legal principles in Arkansas, therefore, have actually evolved from the actions of both the righteous and the roguish.
Comprehensive, yet concise, Arkansas Legal Research is an indispensable resource for every Arkansas practitioner. If you do research of any kind, state or federal, this book provides a thorough approach to the latest resources both free and subscription, online and print. Arkansas Legal Research will provide users tremendous gains in research quality and efficiency. It is easily accessible with charts and step-by-step guidelines and is annotated for fast response. The book will prove equally valuable to those who want to ensure their research is thorough and those who want to confirm the latest in online options. To say it differently, if someone took the time to guide you on all of your options on a given research topic, would you benefit from that? The answer is obvious—buy this book as a present to yourself. Here is my hypothetical—a lawyer, alone on a desert island, with a solar-powered laptop and Internet service could service his or her clients well by referencing this book. Imagine what you could do in your office or home.
by J. W. Looney, The University of Arkansas Press, 2016, 285 pages, $59.95. Book Review by Mary Beth Matthews
by Coleen M. Barger, Cheryl L. Reinhart, Cathy L. Underwood, Series Editor Suzanne E. Rowe, Carolina Academic Press, 2016, 236 pages, $29.00 Book Review by Brian Rosenthal
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Vol. 52 No. 3/Summer 2017 The Arkansas Lawyer
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Report from the April 2017 Board of Governors Meeting and the June 2017 House of Delegates Meeting By Karen K. Hutchins The Association’s Board of Governors held their April 2017 meeting at Big Cypress Lodge in Memphis, Tennessee. President Denise Hoggard reported on the Association's strategic goals for 2016-2019. President Hoggard explained the need to align each committee’s work with one of the Association’s strategic goals. Further, she explained the need for the Board and House members to be involved in oversight of each strategic goal. She asked all Governors to assume an assignment on a strategic goal oversight group to help the Association focus on building a strong future as the legal profession faces unprecedented challenges. President Hoggard also discussed the Association's response to SJR8, which is a Legislative initiated Constitutional Amendment that will be on the ballot in November 2018. She discussed the need to form a task force and stressed that the Association represents all attorneys, not just one subgroup or practice area. President-Elect Tony Hilliard reported the appointments of Bob Estes as Chair of the PAC and Carla Miller as Secretary/ Treasurer of the PAC. Both were approved. The Board also approved the merger of several current committees with similar goals and the sunset of committees whose objectives had been achieved. Governor Bob Estes, Chair of the PAC, reported on the distribution of funds to attorney candidates and the number of attorneys elected to the General Assembly. Patti Julian reported on her first year serving as the Association’s lobbyist. She stated that all five bills of the Bar Package passed. Executive Director Karen Hutchins reported on the plans for implementing the new dues increases for sections. A motion was made and passed to change the bylaws of the sections as needed to reflect the correct dues structure as approved by the House of Delegates in its February 2017 Meeting. 16
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Treasurer Shaneen Sloan presented the report of the Finance Committee. The Board reviewed the Finance Committee’s proposed 2017-2018 budget. The Board voted to approve the proposed budget with two changes. First, the Young Lawyers Section budget was increased by $2,000 to cover cost of travel to the American Bar Association. Second, the Mock Trial Committee budget was increased by $3,000 to maintain the current state competition in Little Rock. The Association’s budget as amended was approved. The House of Delegates held their Annual June meeting in Hot Springs. President Hoggard reported on the success of the 2017 Annual Meeting, thanking Dean Cynthia Nance for planning outstanding programming. President Hoggard also updated the delegates on the denial by the Supreme Court of the Association’s proposed changes to the Rules of Professional Conduct concerning the representation of clients involved in the manufacture and sale of marijuana. Next, President Hoggard presented the proposed separation of powers amendment to the Arkansas Constitution. The proposed amendment had been provided to the Association membership 30 days in advance of the meeting as required by Article XIV of the Association Constitution. After extended discussion President Hoggard called for a vote on the question of support of the proposed constitutional amendment. There were a total of 78 votes cast with 56 in favor and 22 opposed. The motion failed to obtain the required three-fourths vote of the House present and voting as required under Article XIV of the Association Constitution. The Charles L. Carpenter Award was presented to John Comstock by President Hoggard for his work in chairing the drafting taskforce for the proposed judicial selection amendment. President Hoggard called for nomina-
tions for the positions of Secretary and Treasurer. F. Thomas Curry was re-elected as Secretary and Joe Kolb was elected as Treasurer for the 2017-2018 bar year. Other positions elected at the meeting included District Representatives to the Association’s PAC and the House Advisory Committee. PAC representatives elected are Earl Buddy Chadick, Victoria Leigh, and Brent J. Eubanks. House Advisory Committee representatives elected are M. Scott Hall, Scott M. Strauss, and Hunter J. Hanshaw. President Hoggard recognized the delegates whose terms were expiring with the end of the meeting as well as Governor Tom Carpenter who completed his term on the Board of Governors. President Hoggard recognized the out-going Young Lawyers Section Chair Greg Northen and out-going Treasurer Shaneen Sloan and thanked them for their service to the Association. President Hoggard passed the presidential gavel to the 2017-2018 President, Mr. Anthony A. “Tony” Hilliard. President Hilliard thanked Past-President Hoggard for her service as Association President and presented a gift on behalf of the Association. President Hilliard announced that in the 2017-2018 bar year Paul Keith will serve as Board of Governors Chair, Aaron Squyres will serve as Parliamentarian, Joe and Cindy Kolb will be the Mid-Year Meeting Chairs, and Judge Mary McGowan will Chair the 2018 Annual meeting with Nathan Looney serving as Vice-Chair.
Karen K. Hutchins, J.D., CAE, is the Executive Director of the Arkansas Bar Association.
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Vol. 52 No. 3/Summer 2017 The Arkansas Lawyer
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2017 LEGISLATIVE SESSION REVIEW By Patti Julian
I
t has been said by a noted Arkansas attorney that “it takes a village.” That is certainly the case when you consider the number of Arkansas Bar Association members it takes to propose, track and respond to the association’s needs during a legislative session. In this year’s legislative session a total of 2,069 House and Senate bills and 36 Joint Resolutions were proposed. Ultimately 1,127 were enacted into law. ArkBar’s purpose at the legislature is threefold. First, is the presentation for passage of our legislative package. Secondly, we review each piece of proposed legislation for its impact on the practice of law. Finally, we serve as a resource for legislators. ARKBAR’S LEGISLATIVE PACKAGE In the 2017 session ArkBar proposed five pieces of legislation. Legislative proposals were submitted by the Jurisprudence and Law Reform Committee and approved by the House of Delegates for inclusion in our package. The chosen proposed bills were made by the Real Estate Section, the Criminal Law Section and three from the Uniform Laws committee. Four of our proposed bills were passed with no changes and one passed with a minor change. The proposals were submitted to the Bureau of Legislative Research to be formatted into bills and reviewed again by the sections to make sure no unintended consequences occurred in the translation. This is a painstaking process particularly in the case of the Uniform Law bills. The bills passed were as follows: The Transfer Tax Clarification bill was passed with the deletion of the provision providing that no recording fee be collected when a receipt was generated through the electronic payment of real property transfer taxes. This was a compromise with the Association of Counties. The portion of the bill clarifying that exempt transactions are not required to contain a receipt or affidavit of compliance was left intact. The Uniform Voidable Transactions Act was passed as presented. It changes the name of the former Uniform Fraudulent Transfers Act. The revised act provides a creditor the means to reach assets a debtor has transferred to another person to keep them from being used to satisfy a debt. It clarifies choice of law provisions that have been inconsistent and unpredictable. It fur-
18
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ther provides that the net worth of a general partner need not be included when determining the insolvency of a partnership. It also clarifies that the “preponderance of the evidence” standard applies throughout the act. Lastly, it modernizes the act by addressing issues such as electronic communications and series organizations. The Uniform Unsworn Foreign Declarations Act was also passed as presented by the Bar. It extends to the state the same flexibility enjoyed by the federal court to allow an unsworn declaration made outside the United States to be recognized as valid as a sworn affidavit if it includes language substantially similar to “declare (or certify, verify or state) under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on (date). (Signature).” The Uniform Fiduciary Access to Digital Assets Act was amended only to include an addition made by the Uniform Laws Commission between the time the bill was included in our package and the legislative session. It updates fiduciary law for the Internet age. Many people now own digital assets such as photographs, documents, social media accounts, web sites and more which may present privacy concerns. The act provides the legal authority for a fiduciary to manage digital assets according to a user’s estate plan, while ensuring that the user’s private communications remain private unless the user has consented to the disclosure. The Act to Define the Affirmative Defense of Lack of Criminal Responsibility was passed as presented. This law clarifies the two types of forensic mental examinations (fitness to proceed and criminal responsibility) already existing in Arkansas law. The criminal responsibility examination will now only be ordered if a defendant asserts the affirmative defense of lack of criminal responsibility. The act further reorganizes the act to provide further clarification. Review of Proposed Legislation Your Legislation Committee was ably chaired by Kristin Pawlik. The 11 members were charged with reviewing each piece of legislation filed for its effect on the practice of law and the administration of justice. Each committee member took an ending bill number and reviewed each bill corresponding to that number and reported back to
the entire committee in its weekly meeting. We owe a debt of gratitude to these committee members for the long hours they put in carefully reviewing each bill. By vote of the committee it was determined whether we would oppose the bill as written, take a neutral position or support the bill. In many instances a bill was passed along to the appropriate section for comment or informational purposes. Over the course of the session we opposed the passage of 12 bills. Nine of the bills we opposed were either withdrawn or defeated. Three of the bills we opposed, including Senate Joint Resolution 8, were passed. Of the four bills we supported, two were passed and two died in committee. The bills passed were Senator Maloch’s Senate Bill 491 (Act 649) excluding the value of the homestead and any statutory allowances for the benefit of a spouse or minor children from the calculation of the $100,000 limit on the definition of a small estate. Also passed was Representative Cozart’s HB1750 (Act 808) changing the notice requirement in lien filings against residential properties. Testimony against the bills we opposed was given by President Denise Hoggard on multiple occasions. In her absence other members of the committee were prepared to express our viewpoint. The testimony was critical to our success in defeating bills we opposed. Testimony critical to the passage of our legislative package, particularly the Uniform bills, was provided by Professor Lynn Foster with Uniform Laws Commissioner Elisa White always on standby. All testimony required hours of time on the part of these Bar members as there is no way to ascertain exactly when a bill will be heard in a committee or even if it will be heard on any given day. The patience required of those who testified on our behalf was admirable. Also crucial to our success was building alliances with other groups whose position on a bill was in line with our position. These alliances made increased personal contact with legislators possible. Lastly, but perhaps most importantly, our lawyer legislators played a vital role in advancing our legislative package and supporting the position of the Bar on other bills. I cannot stress enough that support of lawyer legislators plays a critical role in our success or failure at the legislature. I hope that you will consider supporting our PAC and encouraging more lawyers to offer themselves as candidates.
SERVING AS A RESOURCE The collective knowledge of the Bar Association can be an invaluable resource to legislators. Efforts were made this year to make this knowledge available in a timely manner through the creation of a panel of subject matter experts who were available to provide assistance and answer questions posed by legislators. Each time these experts were called on they provided concise summaries of answers to questions as well as supporting documentation and citations. The legislators we were able to provide this support to were uniformly appreciative and complimentary on the timeliness of the help. I believe as word spreads about the availability of this assistance, more legislators will avail themselves of it allowing us to make a meaningful impact on the process. Members of the Legislative Committee and the Executive Committee were also helpful in suggesting language changes to bills which we opposed that were made by sponsors allowing us to withdraw our opposition. All of these measures will hopefully pave the way for a more positive attitude regarding the legal community on the part of legislators. LASTLY I appreciate the trust and opportunity the Association has given me to act as your lobbyist before the legislature. The number of members who made my task easier and more successful is long. But each of you can play a vital role in our success. Each of you has a Senator and a Representative in your district. I suspect many of you are well acquainted with them. Outside your district you may have a former classmate or friend who serves in the legislature. Yours are the voices they listen to. Please take a few minutes of your time to contact me through ACE to give me your contact information and the names of the legislators you know. A few well-placed emails or calls from you may make a huge difference in the passage of good legislation.
Patti Julian is the lobbyist for the Arkansas Bar Association.
Vol. 52 No. 3/Summer 2017 The Arkansas Lawyer
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2018 ArkBar Legislative Timetable
The voice of the Arkansas lawyer
One of the most important things The Arkansas Bar Association does each year is represent its members at the Arkansas Capitol during the legislative session. The Association speaks with a unified voice to best represent the interests of the legal community and the profession of law. Legislative or administrative proposals concerning all matters of jurisprudence and procedure, including reforms of the substantive law and improvement in practice and in administration of the courts originate with Association members, sections and committees. If proposals are recommended by the Jurisprudence and Law Reform Committee and adopted by the House of Delegates, they become part of the Association’s Legislative Package. Deadlines have been established by the Arkansas Bar Association to facilitate consideration and inclusion for the ArkBar’s Legislative Package, and thereby sponsored by the Association. For the 2019 session of the Arkansas General Assembly those deadlines are as follows:
JANUARY 31, 2018 Initial deadline for submission of legislation to the Jurisprudence & Law Reform Committee. All proposals must be in bill format.
APRIL 2018
JUNE 2018
Board of Governors considers the report of the Jurisprudence & Law Reform Committee and makes recommendation to the House of Delegates.
House of Delegates acts upon recommendation. Up to 10 bills selected for Association sponsorship. The House may also add up to three additional bills.
For more information or to submit proposals, contact Karen Hutchins at the Arkansas Bar Association’s office at (501) 375-4606.
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Vol. 52 No. 3/Summer 2017 The Arkansas Lawyer
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Tilting the Balance of Power: Senate Joint Resolution 8 By Brian G. Brooks
S
enate Joint Resolution 8 (SJR8) seeks to realign power over civil lawsuits in Arkansas. It asks the people to approve broad measures vesting power in the legislature that it does not have now. Whether that is a good idea or a bad idea is not the topic for today. Rather, at the request of the Bar Association’s publications committee, what follows is an examination of what SJR8 does and why it does it, with some questions arising from a review of it interspersed for thought. The Bar Association opposes SJR8, and this article is designed to inform and educate about its provisions but not to be an opinion or editorial piece. Every effort is made here to remove my point of view and my biases from this project.1 The mission here, again, is to set out what SJR8 would do and why it would do it without elaboration as to whether it should do it. Even where technical questions that might be seen as flaws are pointed out, the effort is to do so without editorial comment or opinion as to the wisdom of the measure. With those caveats in mind, an examination of SJR8 follows.
Brian G. Brooks is a solo practitioner who focuses on appellate practice and complex legal research, writing and advocacy for the plaintiff’s bar.
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1. Act 649’s Troubles: the Root of SJR8 Proponents of what is euphemistically known as “tort reform” have advanced measures meant to limit exposure to damage awards by Arkansas juries for many years. Those efforts bore fruit in the 2003 legislative session. The Civil Justice Reform Act, Act 649 of 2003,2 was passed that year through which the venerable doctrine of joint and several liability was abrogated and replaced with proportional liability. That cornerstone of Act 649 remains
in place today with all of its attendant consequences. But other portions of Act 649 did not fare so well. Portions of it enacted rules of pleading, practice and procedure, and that power is vested in the Arkansas Supreme Court by Amendment 80 to the Arkansas Constitution.3 Provisions directing how fault was to be allocated under Act 649’s proportional liability scheme,4 notice provisions in medical injury cases,5 the same-special requirement in medical injury cases,6 and the partial abrogation of the collateral source rule were struck down as legislative violations of separation of powers.7 The portion of Act 649 capping punitive damages was struck down as a violation of another portion of the Arkansas constitution forbidding the legislature from enacting limitations on damages in death cases, personal injury cases, and injury to property cases, Article 5, section 32.8 Article 5, section 32 is a particular form of separation of powers leaving to juries and the courts the ability to award damages in those types of cases.9 Tort reform advocates were thus forced to turn their attention to amending the Arkansas constitution in order to achieve the full measure of reforms they sought. Various attempts were made to refer proposed amendments in succeeding legislative sessions but were unsuccessful. An initiated amendment was struck from the ballot prior to the 2016 election.10 SJR8 is the latest, and thus far most successful, effort to grant to the legislature broad power to control civil litigation through legislation that is currently forbidden by separation of powers. It does so in three ways. It grants the legislature broad power to limit fees attorneys may charge in contingent fee cases;11 it mandates caps on certain types of damages in civil cases;12 and it grants to the legislature ultimate control over rules of pleading, practice and procedure.13 Attention turns now to the details of how those actions are accomplished. 2. The Power Shift Part 1: Attorney Fees SJR8’s first shift of power is to remove from the courts the ability to control contingent fees charged by attorneys. Contingent fees, defined as “an attorney’s fee that is paid only if the claimant recovers money by way of settlement, arbitration, or judgment,”14 are limited to 33 1/3 percent of the “net amount of recovery” in any “civil action.”15 This cap on fees is not set in stone and may be amended up or down by
a 2/3 vote of each house.16 “Net amount of recovery” is not defined. Instead, SJR8 commands the legislature to define it and other terms within the subsection limiting contingent fees beginning with the 2019 legislative session.17 It also commands the legislature to enact laws “[e]stablishing penalties for contingent fees that exceed the maximum” established by SJR8.18 The term “commands” is used intentionally. Section 1 of SJR8 does not simply empower the legislature to enact attorney fee caps; it sets a cap and then requires the legislature to define its scope and penalties for violating the cap. This provision is a marked shift in power over fees attorneys may charge in civil cases. The Arkansas Supreme Court currently controls fees through a Rule enacted pursuant to its constitutionally delegated power to make rules regulating the practice of law and the professional conduct of attorneys found in Amendment 28.19 Rule 1.5 of the Rules of Professional Conduct deems that a “lawyer’s fee shall be reasonable” and sets forth certain factors to be considered in determining reasonableness.20 Contingent fees are subject to additional control and are forbidden in certain cases.21 Curiously, SJR8 never mentions Amendment 28 and by its text is not meant to alter it. Rather, section 1 adds a section to Article 7, the judicial article. It reads, “Arkansas Constitution, Article 7, is amended to add an additional section to read as follows,” then proceeds to add a new section 53. Which highlights another curiosity. Article 7 already has a section 53. A portion of Amendment 95 enacted by the voters in the 2016 general election is found there and it prohibits certain county officials from holding another civil office during the term in which he or she has been elected.22 In any event, the clear purpose of section 1 of SJR8 is to shift to the legislature the power to control certain attorney fees. The general idea expressed is to limit contingent fees to one-third of the net recovery. This limitation goes beyond personal injury and property damage cases and extends to all civil actions. Control over contingent fees is thus removed from the Supreme Court. 3. The Shift in Power Part 2: Damages Caps SJR8’s second shift in power is to amend Article 5 section 32 to remove from juries and the courts the ability to determine puni-
tive damages and “non-economic” damages in civil actions involving death, personal injury, and injury to property by imposing preset caps on them.23 With respect to punitive damages, which are “damages to punish and deter wrongful conduct,”24 the limit for “each claimant” is either $500,000 or three times the amount of compensatory damages awarded to that claimant, whichever is greater.25 The cap is to be adjusted for inflation or deflation,26 and can otherwise be adjusted upward but not downward by a 2/3 vote of each house of the general assembly.27 The cap does not apply if the fact finder determines by clear and convincing evidence that the defendant “intentionally pursued a course of conduct for the purpose of causing injury to the claimant” and that “conduct harmed the claimant.”28 Reference to “the claimant” in the intentional conduct exception is somewhat troubling. It is unclear whether the exception would apply when the “claimant” is one who is bringing a claim on behalf of another person who was injured by the defendant. For example, where a suit is brought by a parent on behalf of a child, a guardian on behalf of an incompetent, or a personal representative on behalf of a deceased person and his or her wrongful death beneficiaries, is the exception applicable? The literal “claimant” is not the person at whom the conduct was directed, so arguably the exception does not apply in these cases. With respect to “non-economic” damages, the limit is $500,000 for each claimant29 and $500,000 for “all beneficiaries of an individual decedent in the aggregate in an action for injuries resulting in death.”30 Thus, in a death case, the injured person’s estate is limited to $500,000 in “non-economic” damages and his or her wrongful death beneficiaries are limited to a total of` $500,000 in non-economic damages irrespective of how many beneficiaries may be injured by the defendant’s actions. Like the punitive damages cap, this cap must be adjusted for inflation or deflation,31 and may be adjusted upward but not downward by a 2/3 vote of the general assembly.32 A core provision of SJR8’s damages caps is the definition of “non-economic” damages. The term means “damages that cannot be measured in money, including without limitation any loss or damage, however characterized, for pain and suffering, mental and emotional distress, loss of life or compan-
Vol. 52 No. 3/Summer 2017 The Arkansas Lawyer
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ionship, or visible injury.”33 This wording is curious. Each of the specific injuries identified is a “loss or damage” that is “measured in money” and has been historically.34 Further, it is unclear how any injury to property, to which the caps apply, could ever be incapable of measurement by money. The power shift in this section is obvious on its face. Article 5 section 32 currently forbids the legislature from enacting laws that cap damages that may be awarded in death cases, personal injury cases, and property damage cases, and leaves that authority solely with juries subject to adjustment by the courts. SJR8 proposes to alter that law by limiting the amounts that may be awarded in those cases for punitive damages and “noneconomic” damages. 4. The Shift in Power Part 3: Rulemaking SJR8’s third shift in power is to remove exclusive authority for enacting rules of pleading, practice, and procedure from the Arkansas Supreme Court and to grant to the legislature both rulemaking ability and an override of conflicting Supreme Court Rules through an amendment to Amendment 80 section 3. SJR8 recognizes that the Supreme Court is to continue to enact rules of pleading, practice, and procedure,35 but removes the Court’s exclusive power by enabling the legislature to amend or repeal a rule or to adopt its own rules by a 3/5 vote of both houses.36 If a rule enacted by the legislature conflicts with a Supreme Court rule, the legislature’s version prevails and supersedes “a conflicting rule of pleading, practice, or procedure prescribed by the Supreme Court.”37 Naturally, rules in place when SJR8 becomes effective remain in place until amended, superseded, or repealed.38 Rules of pleading, practice, and procedure are to preserve the right of trial by jury and include “rules governing the presentation and admission of evidence.”39 Once again the shift in power proposed by this portion of SJR8 is significant and obvious. Amendment 80, section 3 vests rulemaking authority with the Supreme Court and leaves no place for legislative actions in this area. Power is separated. SJR8 creates two rulemaking bodies, and where rules promulgated by those bodies conflict, final say is given to the legislature. 5. Concluding Comments If SJR8 passes, it will apply to all contin24
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gent fee agreements signed on or after January 1, 2019, and to all causes of action accruing on or after that date.40 The sea change it works in distribution of power between the legislature and the courts, hopefully, will cause significant and lively public debate as to the wisdom of what it does. One hopes that the debate will be informed, careful, and thoughtful. I promised I would not editorialize with respect to my views, and I won’t. It is my desire that the explanation above of what SJR8 would do, and some questions arising from a surface reading of it, help spur the debate on. Endnotes: 1. At the outset, though, it is only fair that I reveal my point of view and the bias with which I come to this project. I am by and large a lawyer representing plaintiffs. Where personal injury and medical negligence are concerned, my work is exclusively for the plaintiff. My writings are generally considered to be pieces advocating in favor of the rights of injured plaintiffs and against the contraction of the tort system in favor of tortfeasors. E.g., Brian Brooks, The Perplexing Problem of the Absent Joint Tortfeasor, Ark. Law, Fall 2011, at 18; Brian Brooks, Don’t Forget the Ordinary Negligence Claim, Trial Magazine, Aug. 2011, at 24; Brian Brooks, Phantoms, Empty Chairs, and Diminished Recoveries: Why the “Empty Chair” Provision of Act 649 Violates the Arkansas Constitution, Ark. Law., Winter 2009, at 14; Brian Brooks, A Plaintiffs’ Attorney’s Perspective on Act 649 of 2003: What is it Really? Ark. Law., Fall 2007, at 15; Clayborn and Scamardo: Two Nails in the Coffin of Charitable Immunity, Ark. Law, Summer 2004, at 16. 2. 2003 Acts of Ark. No. 649. 3. Ark. Const. amend. 80, § 3. 4. Johnson v. Rockwell Automation, Inc., 2009 Ark. 241, 308 S.W.3d 135. The Arkansas Supreme Court has now dealt with allocation of fault through rulemaking. See Ark. R. Civ. P. 9(h), 49, 52. 5. Summerville v. Thrower, 369 Ark. 231, 253 S.W.3d 415 (2007). 6. St. Edward Mercy Medical Health System, Inc., 2012 Ark. 14, 386 S.W.3d 385. 7. Johnson v. Rockwell Automation, Inc., 2009 Ark. 241, 308 S.W.3d 135. 8. Bayer Cropscience LP v. Schafer, 2011 Ark. 518, 385 S.W.3d 822. 9. Brian Brooks, Why the Arkansas Constitu-
tion Forbids Meddling in Damage Awards, ATLA Docket, Fall 2016, at 7, reviews the history leading to Article 5, section 32’s passage and cases applying it. It explains that the provision arose from tort reform efforts in play at the time our 1874 constitution was adopted in which power over damage awards in death and injury cases is vested in juries with the ability to adjust verdicts vested in the courts. Legislative encroachment is forbidden. 10. Wilson v. Martin, 2016 Ark. 334, 500 S.W.3d 160. 11. SJR8 § 1. 12. SJR8 § 2. 13. SJR8 § 3. To a lesser extent, SJR8 § 4 does so as well. Section 4 is not addressed here as it is seen as a minor alteration affecting only management of the lower courts. 14. SJR8 § 1(a). 15. SJR8 § 1(b). 16. SJR8 § 1(d). 17. SJR8 § (c)(2). 18. SJR8 § 1(c)(1). 19. Ark. Const. amend. 28. 20. Ark. R. Prof. Cond. 1.5(a). 21. Ark. R. Prof. Cond. 1.5(c),(d),(e). 22. Ark. Const. Art. 7, § 53. 23. Section 1(b) inserts reference to exceptions to the general rule that damages in death cases, personal injury cases, and property damages cases are not to be limited, then sections 1(c), (d), and (e) contain the exceptions. 24. SJR8 § 2(a)(2). 25. SJR8 § 2(c)(1)(A) and (B). 26. SJR8 § 2(e). 27. SJR8 § 2((c)(3)(A) and (B). 28. SJR8 § 2(c)(2)(A) and (B). 29. SJR8 § 2(d)(1)(A). 30. SJR8 § 2(d)(1)(B). 31. SJR8 § 2(e). 32. SJR8 § 2(d)(2)(A) and (B). 33. SJR8 § 2(a)(1). 34. See generally AMI—Civil, Chapter 22, Damages; and more specifically AMI—Civil 2202, 2205, 2208, 2211, 2216, 2217. 35. SJR8 § 3(a). 36. SJR8 § 3 (b)(1)(A) and (B). 37. SJR8 § 3(b)(2). 38. SJR8 § 3(d). 39. SJR8 § 3(c) and (e). 40. SJR8 § 6.
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PRESERVE THE JURY TRIAL Vol. 52 No. 3/Summer 2017 The Arkansas Lawyer
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SJR8 Some Economic Implications By Ralph D. Scott, Jr., Ph.D.
I
f passed, SJR8, as amended, will have significant implications for tort litigation in Arkansas. Many of the arguments for and against this proposed legislation have been articulated elsewhere and will not be addressed here. Focus will be placed on economic implications of the proposed $500,000 cap on non-economic damages. Specifically, three issues are considered separately below. Although the analysis is ultimately tied to the proposed $500,000 damage cap, it should be noted any legislatively-determined damage cap is ultimately arbitrary in the sense of being a “one size fits all� remedy that fails to consider the circumstances of a specific case. Likewise, any such ceiling ultimately involves legislative encroachment into what should arguably be a judicial function.
Dr. Ralph D. Scott, Jr., is a professor of economics at Hendrix College and the president of Economic and Financial Consulting Group, Inc., in Conway.
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Incentive Structures for Defendants The existence of a damage cap would virtually eliminate the possibility of resolution of cases prior to trial. Rationally, no cases would be resolved for an amount above the damage cap plus litigation costs. In the absence of a legislatively-established damage cap, incentives exist for both defendants and plaintiffs to resolve cases prior to trial. Defendants benefit from the possibility of resolving cases at levels below their exposure and plaintiffs benefit by eliminating the risk of a trial. Both sides benefit from a more rapid resolution of the conflict. A damage cap tilts the playing field and redistributes the potential advantages of a possible resolution from the plaintiff to the defendant.
Realized Attorney Compensation With Damage Cap Damage Cap
Case Probability Expected Evaluation of Success Award
Litigation Costs
Net Award
Attorney Fee (1/3)
Attorney Hours
Hourly Rate
% of Average Arkansas Hourly Rate
$500,000
toss-up
30%
$150,000
$60,000
$90,000
$30,000
1200
$25.00
50.00%
$500,000
toss-up
30%
$150,000
$100,000
$50,000
$16,667
1200
$13.89
27.78%
$500,000
toss-up
30%
$150,000
$60,000
$90,000
$30,000
2000
$15.00
30.00%
$500,000
toss-up
30%
$150,000
$100,000
$50,000
$16,667
2000
$8.33
16.67%
$500,000
strong
50%
$250,000
$60,000
$190,000
$63,333
1200
$52.78
105.56%
$500,000
toss-up
50%
$250,000
$100,000
$150,000
$50,000
1200
$41.67
83.33%
$500,000
toss-up
50%
$250,000
$60,000
$190,000
$63,333
2000
$31.67
63.33%
$500,000
toss-up
50%
$250,000
$100,000
$150,000
$50,000
2000
$25.00
50.00%
Consider the following example involving medical malpractice leading to the death of a minor. Research conducted and published by Philip G. Peters indicates a roughly 30% probability of winning a medical malpractice case that is rated a “toss-up” and only a 50% probability of winning cases in which malpractice is clearly present.1 Suppose that liability is well established and that expected damages amount to $3,000,000 yielding an expected judgment of $1,500,000 (50% x $3,000,000). In the absence of a damage cap, this case could conceptually be settled at amounts between $500,000 and $1,500,000 to the benefit of both parties. With a $500,000 damage cap, the case would not be resolved for any amount in excess of $500,000. In addition to inefficient case resolution from the standpoint of time and resources devoted to the conflict, the defendant would experience a windfall gain of up to $1,000,000 ($1,500,000-$500,000) at the expense of the plaintiff. Additionally, the plaintiff would experience an additional loss equal to litigation costs. Ultimately, defendants are not held ac-
countable for improper behavior and plaintiffs are not appropriately compensated for incurred damages. Incentive Structure for Plaintiffs A $500,000 damage cap will fundamentally change the incentive structure for plaintiff attorneys such that justice will be denied to damaged parties in potential lawsuits. Specifically, case evaluation is a critical component in the practice of plaintiff law. Explicitly or implicitly, plaintiff attorneys go through a process in which probabilityweighted outcomes are ultimately weighed against projected costs to determine the expected profitability of a potential lawsuit. Although other motives are possible, expected profitability is a fundamental determinant of whether cases are accepted and pursued or, alternatively, potential clients are denied representation. Stephen Daniels and Joanne Martin include the following quote from an anonymous Texas attorney in their recent Emory Law Journal article: “Unless there’s a way to make money practicing law, rights don’t make any difference.”2 To the extent
that the $500,000 damage cap would artificially reduce potential awards and projected profitability, it will limit case filings for legitimate plaintiff cases that are below the profitability threshold with the result that justice is denied to damaged parties. As an example, consider a medical malpractice case in which there are little, if any, economic damages (lost earning capacity, lost household services, future medical expenses, etc.), but significant non-economic damages (pain and suffering, loss of quality of life, mental anguish, or even death). Based on the above-cited study by Philip G. Peters, there is only a 30% probability of winning a medical malpractice case that is rated a “toss-up” and a 50% probability of winning cases in which malpractice is clearly present. With a $500,000 damage cap on non-economic losses, a toss-up case would translate into an expected award of $150,000 (30% x $500,000). Deducting projected expenses of $60,000 from this amount yields a net expected award of $90,000. With (1/3) fee arrangement, the amount a plaintiff attorney could be expected to realize would be
Vol. 52 No. 3/Summer 2017 The Arkansas Lawyer
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“SJR8
would cap ‘loss of life’ damages at $500,000.
Although that statute is subject to various interpretations as to what actually comprises “loss of life,” it is inconceivable, irrespective of judicial interpretation, that in the majority of instances “loss of life” would not be valued at greater than $500,000. In general, it is insulting and presumptuous for the legislature to cap the value of a human life, irrespective of
”
individual considerations, at $500,000 for all decedents. $30,000. For a case requiring 1,200 hours, likely accumulated over multiple years, this amount translates into a compensation rate of $25.00 per hour. If the projected costs and hour totals increase to $100,000 and 2,000 hours, respectively, the compensation rate drops to $8.33 per hour. The cost assumptions ($60,000 to $100,000) and time assumptions (1,200 to 2,000 hours) incorporated into the examples above are reasonable based on multiple interviews that have been conducted with prominent Arkansas plaintiff and defense attorneys. The resulting hourly rates are well below the average compensation of attorneys in Arkansas, $50.00 per hour based on Bureau of Labor Statistics data.3 (This figure probably understates average compensation because fringe benefits are not considered and self-employed attorneys are not included in the database.) The disincentives created for case filings and client representation are clearly demonstrated by the examples presented above. What motivation exists for an attorney to accept cases and represent legitimate plaintiffs with expected compensation at 16.67% to 50.00% of the average compensation of attorneys in Arkansas? Again, the ultimate result is that justice is denied to damaged individuals because they are denied access to the judicial process. Scenarios based on alternative parameters of computation are presented in the table on the previous page. Only one example considered, based on clear liability and low litigation costs and hours, yields compensation at the average rate for attorneys in Arkansas. Other scenarios, even involving strong cases with clear evidence of liability, yield plaintiff attorney compensation rates well below average rates for attorneys in Arkansas. Is it fair or 28
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reasonable for the legislature to expect plaintiff attorneys to bear the risks of litigation and accept compensation at rates well below state averages? Is there any consideration of adequate representation for legitimately damaged potential litigants? In the absence of adequate incentives for plaintiff representation, defendants are not held accountable for improper actions and plaintiffs are not appropriately compensated for damages sustained. Before leaving this topic, the concept of “frivolous” lawsuits should be briefly considered. It is frequently argued that capping damages would eliminate or reduce frivolous lawsuits. It is also clear, based on the analysis above, that legitimate lawsuits would likewise be eliminated. The question then arises as to whether the positive aspects of eliminating frivolous lawsuits would outweigh the negative aspects of eliminating legitimate lawsuits. The answer to this issue is ultimately dependent on the prevalence of frivolous lawsuits. Based on the analysis above, it is hard to imagine that attorneys who responsibly evaluate potential lawsuits (by considering costs, time requirements, and potential results) would be anxious to file frivolous lawsuits. If a frivolous lawsuit is defined as one in which the probability of success is 5% or lower, potential damages, based on a cost of $100,000 and a time requirement of 2,000 hours (likely incurred over multiple years), would have to exceed $8,000,0004 to generate attorney compensation at the average rate for attorneys in Arkansas ($50.00 per hour). Higher compensation rates would require higher potential damages. With only a 5% chance of a positive outcome and a cost outlay of $100,000 per case, it might take up to 20 case filings, at a total cost of $2,000,000 and 40,000 hours,
before a positive decision is realized. It is hard to imagine that there are many lawsuits meeting these requirements that responsible attorneys, with the willingness and financial ability to bear the associated costs and risks, would accept and pursue. Implications for Loss of Life SJR8 would cap “loss of life” damages at $500,000. Although that statute is subject to various interpretations as to what actually comprises “loss of life,” it is inconceivable, irrespective of judicial interpretation, that in the majority of instances “loss of life” would not be valued at greater than $500,000. In general, it is insulting and presumptuous for the legislature to cap the value of a human life, irrespective of individual considerations, at $500,000 for all decedents. Consider the narrowest and most restrictive interpretation of Justice Clinton Imber’s decision in Durham v. Marberry5 in which she articulated that “loss of life damages seek to compensate the decedent for the loss of the value that the decedent would have placed on his or her own life.”6 Based on a literal interpretation of Justice Clinton Imber’s decision, imagine an individual dictating a memo (all individuals should dictate such a memo if there is any possibility of wrongful death and if Judge Clinton Imber’s decision is to be literally interpreted): “I believe my life is worth $______.” What percentage of decedents, other than minors, would rationally fill in the blank with an amount less than $500,000? As an aside, it is not clear that the literal interpretation of Judge Clinton Imber’s decision would ever yield meaningful damages for children (“I believe my life is worth a new motorized Barbie jeep”). More generally, if “loss of life” is interpreted as being synonymous with “value of life,” it should be noted that there is voluminous economic literature on this topic. This literature has proliferated in recent years and utilizes the most advanced econometric analysis. A recent Wall Street Journal article presented a range for the statistical value of life (“SVL”) figures, based on underlying economic research and analysis, utilized by various government agencies in cost-benefit analysis.7 The range presented involved valuations ranging from $3,500,000 to $9,100,000. The United States Department of Transportation (DOT) regularly revisits this topic and publishes guidelines, supported by rigorous documentation and analysis, to establish SVLs to
be utilized in agency projects. The latest DOT memo addressing this issue, published on August 8, 2016,8 establishes a benchmark SVL of $9,600,000. The proposed $500,000 damage cap arbitrarily establishes a valuation between 5.2% and 14.3% of the valuations widely utilized by government agencies. Again, the implementation of such a cap could arguably be perceived as being insulting and presumptuous. Another issue that arises when “loss of life” is considered to be synonymous with “value of life” involves considerations of human capital or earning capacity. If earning capacity is considered to be a component of the “value of life,” as it rightfully should, the present value of projected lifetime earnings should be considered in relation to the $500,000 damage cap. A 30-year-old individual with annual earnings of approximately $20,900 (approximately $10.00 per hour), projected to work to age 67, would have an earning capacity, calculated in accordance with standard financial formulas at a 2.5% real discount rate, of approximately $500,000. Wage earners capable of generating annual earnings in excess of this amount would have earning capacities, a component of the value of life, in excess of the proposed damage cap. Since earning capacity represents only
a component (maybe a small component) of the value of life, the arbitrary $500,000 cap on “loss of life” damages would again result in significant undervaluation of human life. Discussions of human capital/earning capacity in this context are separate from and independent of the “loss of financial support” element of damages, which is not capped. In summary, economic issues related to SJR8 have been considered. Ultimately, the issues considered have highlighted negative implications of the proposed legislation, which take the form of reduced representation and inappropriate/unfair awards for damaged individuals, unfair compensation for attorneys, and the elimination of accountability and responsibility for guilty defendants. A possible positive aspect, the elimination of frivolous lawsuits, has also been discussed and refuted. Another possible positive aspect, the reduction of insurance rates, has been refuted by other authors. Endnotes: 1. Philip G. Peters, Twenty Years of Evidence on the Outcomes of Malpractice Claims, 467.2 Clinical Orthopaedics and Related Research 352 (2009), https://www.ncbi.nlm. nih.gov/pmc/articles/PMC2628515/.
2. Stephen Daniels and Joanne Martin, Where Have All the Cases Gone? The Strange Success of Tort Reform Revisited, 65 Emory L. J. 1445 (2016). 3. United States Department of Labor, Bureau of Labor Statistics: Occupational Employment Statistics, May 2016. 4. Damages of $8,000,000 x success rate of 5% = expected award of $400,00 – expenses of $100,000 = net award of $300,000 x attorney share (1/3) = attorney fee of $100,000 / 2000 attorney hours = hourly rate of $50.00. 5. Durham v. Marberry, 356 Ark. 481, 156 S.W.3d 242 (2004). 6. Id. at 492, 156 S.W.3d at 248. 7. Jo Craven McGinty, Why the Government Puts a Dollar Value on Life: The Numbers, Wall Street Journal, Mar. 26-27, 2016. 8. Memorandum issued by the United States Department of Transportation, Office of the Secretary of Transportation: “Guidance on Treatment of the Economic Value of a Statistical Life (VSL) in U.S. Department of Transportation Analyses—2016 Adjustment” (Aug. 8, 2016).
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Vol. 52 No. 3/Summer 2017 The Arkansas Lawyer
29
Presidential Executive Orders
By Prof. Andrew M. Wright
This document presents a brief primer on executive orders and other documents reflecting direct executive actions by the President. It was originally presented as a CLE seminar at the Arkansas Bar Annual Meeting in Hot Springs, Arkansas, on June 15, 2017.
Andrew M. Wright is an Associate Professor at Savannah Law School, where he teaches constitutional law, presidential powers, criminal law, criminal procedure, and federal criminal law. 1
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A. Executive Orders & Other Presidential Directives Since the founding, Presidents have issued directives as a method of exercising powers grounded in the Constitution or delegated by Congress. They are most commonly associated with executive orders, although they take a number of different forms including memoranda, proclamations, agreements, national security directives, and signing statements. Presidential directives are most often used to manage the Executive Branch. Under certain circumstances, however, they can directly define the rights of private individuals, companies, and associations. In addition, presidential directives can affect states’ interests in federal policy, thereby implicating federalism. In our limited, separated, and enumerated government structure, presidential directives must trace authority to an express constitutional grant of power, a presidential power implied by the Constitution, or a legislative enactment delegating authority to the President. Executive orders can be controversial as a matter of process by nature of their expression of unilateral action by the President. However, they are more often controversial as a matter of substance: either by means of a contested authority asserted by the President or the President’s policy choice. Neither the Constitution nor Congress created executive orders and other presidential directives. Rather, they are creatures of customary presidential practice. There are therefore no concrete, universally-accepted definitions of each form of presidential directive. There are some general distinctions that can be made based on recent presidential practices.
1. Executive Orders A House committee offered the most widely cited definition: “Executive orders are written documents denominated as such… [and] are generally directed to, and govern actions by, Government officials and agencies.”2 Executive orders tend to regulate the conduct of government officials and affect private individuals only indirectly. They tend to focus on management of the federal agencies of the Executive Branch. Presidents have used executive orders to establish executive branch policy binding subordinate officials, to formulate policy in an area the President deems to have authority, to delegate executive authority to agencies, to direct agencies to establish regulations, to manage federal property, to reorganize federal agencies, and to supervise military organization. Executive orders that originate outside of the White House must go through an approval process run by the Office of Management and Budget (OMB), which is a component of the Executive Office of the President. The Federal Register Act requires that executive orders and proclamations be published in the Federal Register.3 Examples: • President George Washington, Executive Order (June 8, 1789) (requiring executive department heads “to submit ‘a clear account’ of affairs connected with their Departments”) • President Barack Obama, Executive Order No. 13658, 79 Fed. Reg. 9851 (Feb. 12, 2014) (establishing a minimum wage for government contractors) • President Donald J. Trump, Executive Order (Mar. 6, 2017) (establishing a travel ban prohibiting people from specified countries from entry into the United States) 2. Presidential Memoranda Recently, Presidents have used presidential memoranda to issue directives to executive branch officials. They are basically used for the same purposes as executive orders, but they are attractive because they are not subject to the formalities of interagency approval, indexing, and publication.4 Examples: • President George H. W. Bush, Memorandum (Nov. 30, 1992) (directing federal departments to treat the Commonwealth of
“Puerto Rico administratively as if it were a State” notwithstanding its status as a territory of the United States) • President William J. Clinton, Memorandum (June 1, 1998) (directing department and agency leaders to use “plain language” in all federal documents) • President Donald J. Trump, Memorandum (Jan. 28, 2017) (organizing the National Security Council and Homeland Security Council) 3. Presidential Proclamations Though used in a variety of manners, presidential proclamations more often affect the interests of private individuals and organizations than other directives. Presidents use proclamations to grant pardons, declare holidays, make hortatory pronouncements, and recognize citizen achievements. More consequentially, Presidents have used proclamations to announce foreign policy. In addition, proclamations may become the vehicle by which to make presidential findings required in order to trigger a conditional statutory authority. Presidents have also invoked emergency powers by means of proclamation. Like executive orders, the Federal Register publishes presidential proclamations as well. Examples: • President George Washington, Proclamation (Apr. 22, 1793) (enjoining citizens of the United States from any acts toward “the belligerent powers” that would upset his policy of neutrality in the war between England and France) • President Abraham Lincoln, Proclamation (Jan. 1, 1863) (emancipating “all persons held as slaves” within the Confederacy, declaring they “henceforward shall be free”) • President Barack Obama, Proclamation No. 8783, 78 Fed. Reg.14265 (Mar. 6, 2012) (implementing the United StatesKorea Free Trade Agreement) • President Donald J. Trump, Proclamation (Apr. 5, 2017) (honoring the memory of John Glenn) 4. National Security Directives Presidents have used national security directives to implement national security policy and coordinate national security agencies. Names of this type of directive vary by President. The White House often classifies national security directives and resists disclo-
sure of the existence and substance of such directives to the public and Congress. In effect, such directives are a secret form of presidential memoranda. Examples: • President George W. Bush, National Security Presidential Directive/NSPD-5 (May 9, 2001) (directing the Director of National Intelligence, in coordination with the Secretary of Defense and Secretary of State, to conduct a comprehensive review of U.S. intelligence) • President Barack Obama, Presidential Policy Directive/PPD-43 (Oct. 14, 2016) (orchestrating normalization of diplomatic relations between the United States and Cuba) 5. Executive Agreements The Constitution provides that the President negotiates treaties and then submits them to the Senate for ratification by twothirds of the members.5 In contrast, an executive agreement is “an agreement between the United States and a foreign government that has not been presented to the Senate for ratification.”6 An executive agreement may be negotiated by the President or authorized by subordinates in the Executive Branch. The Case-Zablocki Act of 1972 requires that the State Department notify relevant congressional committees within 60 days of their execution.7 The Supreme Court appeared to validate executive agreements in Dames & Moore v. Regan,8 which addressed President Ronald Reagan’s executive agreement with the Islamic Republic of Iran to freeze legal proceedings in U.S. courts as part of the consideration for return of U.S. hostages. According to a comprehensive study, between 1977 and 1996, the Executive Branch entered some 4,000 executive agreements but only 300 treaties.9 Examples: • President George W. Bush, Executive Agreement, Status of Forces Agreement with the Republic of Iraq (Nov. 17, 2008) (establishing framework of withdrawal of U.S. military forces from Iraq, as well as a smaller residual U.S. military presence) • President Barack Obama, Executive Agreement, Paris Agreement on Climate Change (Apr. 22, 2016) (establishing country-specific benchmarks for emissions reductions and other measures to mitigate climate change)
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6. Presidential Signing Statements The term presidential signing statement is descriptive: “When signing a bill into law, presidents often release a statement concerning the legislation.”10 While the Constitution envisions veto messages, it is silent as to expressions of presidential characterizations of legislation as it is accepted as law by the White House. Signing statements trace their origins to President Washington. However, in the modern era, signing statements have become a platform for Presidents to express disagreements, concerns, and reservations about legislation. More controversially, Presidents occasionally offer an interpretation of legislation out of or declare an intent not to comply with provisions the Executive Branch deems unconstitutional. There is a vigorous debate about whether courts should consider signing statements as part of a statute’s legislative history and whether the practice is, itself, unconstitutionally incompatible with the veto power. Examples: • President George W. Bush, Signing Statement (Mar. 9, 2006) (declaring the Executive Branch would construe the anti-torture provision of the Detainee Treatment Act “in a manner consistent with the constitutional authority of the President” to supervise the administration and protect Americans from terrorist attacks) • President Barack Obama, Signing Statement (Jan. 2, 2013) (expressing constitutional concerns about a provision of the National Defense Authorization Act restricting the military’s authority to transfer third country nationals held at a detention facility in Parwan, Afghanistan) B. Judicial Review & Congressional Limitations Every presidential directive must be grounded in constitutional, statutory, or treaty-based laws. Marbury v. Madison11 is most commonly remembered for its recognition of the power of judicial review of constitutionality of legislation. However, it also constituted judicial review of President Thomas Jefferson’s executive actions, namely his failure to allow delivery of James Marbury’s signed and sealed commission. Presidential directives, too, are subject to judicial review, provided the parties have standing and the substance is otherwise justiciable. Standing and justiciability often pose particular prob32
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lems in the context of separation-of-powers litigation, especially given the difficulty legislators have in establishing legislative standing. However, often, there will be concrete injuries to specific parties as a result of executive actions. Recall that the Supreme Court struck down President Harry Truman’s executive order seizing the nation’s steel mills when a labor strike threatened the defense supply chain during the Korean Conflict in Youngstown Sheet & Tube Co. v. Sawyer (the Steel Seizure Case).12 Since that time, when addressing a power not specifically granted to the President by the Constitution or a statute, courts have generally looked at the nexus between an executive order and a related act in order to assess whether the President’s directive is valid.13 C. Practical Politics & Considerations The defining feature of executive orders and other presidential directives is the unilateral action of the President. That stands in contrast to the legislative process that contemplates participation by both Congress and the Executive Branch. As a matter of substance, presidential power must be authorized by our constitutional scheme. However, as a matter of perception, presidential directives are unilateral acts. From the perspective of the White House, presidential directives provide an opportunity to send a message to the people in the face of a recalcitrant Congress. Finding opportunities to act unilaterally is especially enticing to Presidents during a time of political gridlock.14 However, presidential unilateralism is a double-edged sword. To critics, it smacks of the so-called Imperial Presidency.15 The President’s congressional opponents regularly point to executive orders as a symbol of a presidency run amok. Therefore, they come at a political cost. They also come at a cost to their political legitimacy: legislation passed through regular order has the stamp of approval by both Congress and the White House. One practical consideration is that most presidential directives can be reversed by a successor with the stroke of a pen.16 Legislation, on the other hand, requires a superseding legislative act or an adverse judicial ruling to alter it. Therefore, use of presidential directives as a means of bypassing Congress comes at a cost to the President’s policy legacy.
D. Bibliography For further, in depth, information about executive orders and other presidential directives, please consult these sources: • Tara L. Branum, President or King? The Use and Abuse of Executive Orders in ModernDay America, 28 J. Legis. 1 (2002). • Kiki Caruson & Victoria A. Farrar-Myers, Promoting the President’s Foreign Policy Agenda: Presidential Use of Executive Agreements as Policy Vehicles, 60 Pol. Research Q. 631 (2007) • Vivian S. Chu & Todd Garvey, Executive Orders: Issuance, Modification, and Revocation, Congressional Research Service Report RS20846 (Apr. 16, 2014) • John Contrubis, Executive Orders and Proclamations, Congressional Research Service Report (Mar. 9, 1999) • Phillip J. Cooper, By Order of the President: The Use and Abuse of Executive Direct Action (University of Kansas Press, 2002). • Daniel P. Gitterman, Calling the Shots: The President, Executive Orders, and Public Policy (Brookings Institution Press, 2017) • Glen S. Krutz & Jeffrey S. Peake, Treaty Politics and the Rise of Executive Agreements (University of Michigan Press, 2011) • David S. Schwartz & Lori A. Ringhand, Constitutional Law: A Context and Practice Casebook (Carolina Academic Press, 2013), pp. 455-459 Endnotes: 1. In addition to six years in private practice, Professor Wright served as Associate Counsel to President Barack Obama, Assistant Counsel to Vice President Al Gore, and Staff Director to the national security subcommittee of the Committee on Oversight and Government Reform in the U.S. House of Representatives. Links to Professor Wright’s academic articles and Just Security blog articles can be found by following the links below: • SSRN: https://papers.ssrn.com/sol3/ cf_dev/AbsByAuth.cfm?per_id=564958 • Just Security: https://www.justsecurity.org/ author/wrightandy/ For further information or follow up, please do not hesitate to contact Professor Wright at 912.525.3912 or awright@savannahlawschool.org. 2. Staff of House Comm. on Gov’t Ops., 85th Cong., 1st Sess., Executive Orders & Proclamations: A Study of a Use of Presidential Powers (Comm. Print 1957).
3. See 44 U.S.C. § 1505. 4. The President may designate a memorandum for publication in the Federal Register if it has “general applicability and legal effect.” 44 U.S.C. § 1505. Most are nevertheless published in the Weekly Compilation of Presidential Documents and The Public Papers of the President. 5. See U.S. Const., art. I, § 7, cl. 2. 6. David S. Schwartz & Lori A. Ringhand, Constitutional Law: A Context and Practice Casebook 457 (2013). 7. See 1 U.S.C. § 112b(a). 8. 453 U.S. 654 (1981). 9. See Kiki Caruson & Victoria A. FarrarMyers, Promoting the President’s Foreign Policy Agenda: Presidential Use of Executive Agreements as Policy Vehicles, 60 Pol. Research Q. 631 (2007). 10. Marc N. Graber & Kurt N. Wimmer, Presidential Signing Statements as Interpretations of Legislative Intent: An Executive Aggrandizement of Power, 24 Harv. J. On Legis. 363 (1987). 11. 5 U.S. 137 (1803). 12. 343 U.S. 579 (1952). 13. See, e.g., Contractors Association v. Secretary of Labor, 442 F.2d 159 (3d Cir. 1971) (upholding President Lyndon Johnson’s executive order authorizing the Secretary of Labor to establish affirmative action benchmarks in federally-assisted projects); AFL-CIO v. Kahn, 618 F.2d 784 (D.C. Cir. 1979) (en banc) (establishing a nexus between the Procurement Act and President Jimmy Carter’s executive order directing the Wage and Price Stability Council to establish voluntary standards for the entire economy in an effort to fight inflation); Liberty Mutual v. Friedman, 639 F.2d 164 (4th Cir. 1981) (finding a nexus with the Procurement Act lacking). 14. In one of several similar statements, on October 26, 2011, President Barack Obama told the University of Colorado Denver: “We can’t wait for Congress to do its job, so where they won’t act, I will.” For his part, President Donald J. Trump has repeatedly cited his executive orders as evidence of accomplishments during the first 100 days of his term. 15. A term popularized by Arthur Schlesinger, Jr., in his 1973 book of the same title. 16. There can be situations in which a presidential directive could be binding on a successor due to the nature of the legislation delegating such authority to the President. Vol. 52 No. 3/Summer 2017 The Arkansas Lawyer
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HOT SPRINGS CONVENTION CENTER
The Annual
ArkBar
2017 JUNE 14-16th
The Arkansas Bar Association held its 119th Annual Meeting and Joint Meeting with the Arkansas Judicial Council at the Hot Springs Convention Center June 14-16, 2017. More than 1,000 attorneys, judges and guests attended the three-day meeting that was complete with CLE seminars, receptions and award ceremonies. This year’s Annual Meeting was chaired by Dean Emeritus Cynthia Nance. With a theme of “Lawyers Leading in Times of Change,” the program addressed several leading legal topics from 2017 and included over 20 national speakers in addition to our own experts. Sponsorship opportunities for 2018 are now available at http://www.arkbar.com/about-arkbar/sponsorships. See the complete photo gallery online at http://www.arkbar.com/annualmeeting/home.
President Denise Hoggard recognized Dean Emeritus Cynthia Nance for her work as chair of the 2017 Annual Meeting as well as others during the awards ceremony.
The meeting included numerous panel discussions on cutting-edge topics affecting the legal profession.
Chief Justice Dan Kemp presented the “State of the Judiciary Address” following the presentation of the colors by the U.S. Air Force Honor Guard.
The House of Delegates met on Friday afternoon.
2016-2017 YLS Chair Greg Northen passed the gavel to incoming YLS Chair Eric Marks.
Congratulations to Members Celebrating 50 Years
President Denise Reid Hoggard honored members celebrating 50 years of practice at a luncheon on Thursday. Thank you to the following sponsors of the 50-year luncheon: Branscum Law Offices, Dover Dixon & Horne PLLC, Dunner, Nutter & Morgan, L.L.P., Friday, Eldredge & Clark, LLP, Kelley Law Firm, and Taylor Law Partners LLP. 34
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W. Christopher Barrier Frank W. Booth Herby Branscum, Jr. John Dudley Bridgforth James M. Bryant, II Edward M. Coffman Winford L. Dunn, Jr. Judge Mahlon Gibson Fred H. Harrison Richard F. Hatfield Cyril Hollingsworth David B. Horne Donald T. Jack, Jr. Eugene T. Kelley
Chester C. Lowe, Jr. Eugene J. Mazzanti L. Philip McClendon Josh E. McHughes T. Ark Monroe, III Don D. Montgomery, Jr. Jerry D. Pinson Thomas S. Stone Robert F. Thompson Denver L. Thornton Fred S. Ursery Gus B. Walton, Jr. Judge Henry Wilkinson
Thank You to the 2017 Annual Sponsors Diamond Arkansas Bar Foundation
ArkBar Benefactor Members ArkBar Patron Members
Platinum
Gold
a tla
Wilson & Associates, PLLC
Silver Business Law Section of ArkBar
Criminal Law Section of ArkBar
Family Law Section of ArkBar
Real Estate Law Section of ArkBar
William A. Martin
Kirby and Rosalind Mouser
Hilburn, Calhoon, Harper, Pruniski & Calhoun, LTD
RamsayBridgforth
Ramsay, Bridgforth, Robinson and Raley LLP Attorneys at Law
Labor & Employment Law Section of ArkBar
Bronze
Construction Law Handbook Authors Recognized
Prizes and Networking Opportunities
The authors of the Arkansas Construction Law Manual were recognized during the awards ceremony on Thursday. Ashlea Brown Carl J. Circo Junius Bracy (J.B.) Cross, Jr. Gregory L. Crow Allen C. Dobson Richard C. Downing Jack East III David L. Gershner David A. Grace Cyril Hollingsworth David L. Jones
Lizabeth Lookadoo Jeffrey H. Moore J. Don Overton David M. Powell Jeffrey W. Puryear John M. Scott Jeffrey Swann John Dewey Watson Patrick D. Wilson Andrea G. Woods Dennis Zolper Vol. 52 No. 3/Summer 2017 The Arkansas Lawyer
35
The Annual
ArkBar
2016 - 2017 Arkansas Bar Association Award Recipients 2016 - 2017 Association President Denise Reid Hoggard selected the following members as award recipients for their outstanding work and service.
Clary
Comstock
DiPippa
Foster
Hathaway
Hoggard
Jewell
Jones
Moore
Nance
Pawlik
Perkins
Rainwater
Rockwell
Savage
Sloan
Brian M. Clary, Saline County Prosecuting Attorney, received a Golden Gavel award for his work as chair of the CLE Committee.
Sarah Coppola Jewell, Hare, Wynn, Newell & Newton, LLP, Fayetteville, received the YLS Award of Excellence as a Rising Star.
Jon B. Comstock, Comstock Conflict Resolution Services, Rogers, received the Charles Carpenter Award for his work as chair of the Drafting Task Force.
Jamie Huffman Jones, Friday, Eldredge & Clark, LLP, Little Rock, received the Presidential Award of Excellence for her work on the Drafting Task Force.
Dean John DiPippa, UALR William H. Bowen School of Law, Little Rock, received the Presidential Award of Excellence for his work on the Drafting Task Force.
Barrett Moore, Blair & Stroud, Batesville, received a Golden Gavel award for his work as chair of the Mock Trial Committee.
Lynn Foster, UALR William H. Bowen School of Law, received a Golden Gavel award for her work planning the 2017 UALR Bowen School of Law/Arkansas Bar Association Symposium.
Cynthia E. Nance, Dean Emeritus, University of Arkansas School of Law, received the Presidential Award of Excellence for her work as Chair of the 2017 Annual Meeting.
James E. Hathaway, Kutak Rock LLP, Little Rock, received the Presidential Award of Excellence for his work on the Drafting Task Force.
Kristin L. Pawlik, Keith, Miller, Butler, Schneider & Pawlik, Rogers, received a Golden Gavel award for her work as chair of the Legislation Committee.
Glen Hoggard, Attorney at Law, Little Rock, received the Presidential Award of Excellence for his work on the Drafting Task Force.
G. S. Brant Perkins, Perkins Law Firm, Jonesboro, received the Presidential Award of Excellence for his work on the Drafting Task Force.
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John Rainwater, Rainwater, Holt & Sexton, Little Rock, received the Judith Ryan Gray Outstanding Young Lawyer award and the YLS Award of Excellence for his work on the Citizen Education programs. Dr. Casey Rockwell, University of Arkansas at Little Rock, received the CLE Award for elevating the quality of continuing education provided through ArkBar CLE. Caitlin E. Savage, Deputy Prosecuting Attorney, Sixth Judicial District, received the YLS Award of Excellence for her work on the Wills for Heroes events. Shaneen K. Sloan, Miron & Foster, PLLC, Little Rock, received a Golden Gavel award for her work as Association Treasurer.
The Annual
ArkBar
Arkansas Bar Foundation and Arkansas Bar Association 2016 - 2017 Annual Joint Award Recipients
Outstanding Lawyer Award
William A. Waddell, Jr. Friday, Eldredge & Clark, LLP, Little Rock, received the award in recognition of excellence in the practice of law and outstanding contributions to the profession.
James H. McKenzie Professionalism Award
Charles C. Owen Gill Ragon Owen, P.A., Little Rock, received the award in recognition of sustained excellence through integrity, character and leadership to the profession and the community.
Outstanding LawyerCitizen Award
Gary Speed Speed Law Firm, Little Rock, received the award in recognition of outstanding participation in and for excellent performance of civic responsibilities and for demonstrating high standards of professional competence and conduct.
Equal Justice Distinguished Service Award
Caitlin E. Savage Deputy Prosecuting Attorney, Sixth Judicial District, received the award in recognition of her commitment to and participation in equal justice programs, including pro bono efforts through legal services programs.
C.E. Ransick Award of Excellence
Scott C. Trotter Trotter Law Firm, PLLC, Little Rock, received the award in recognition of outstanding contributions to the profession.
Outstanding LawyerHumanitarian Award
Terry Goodwin Jones Attorney at Law, Jonesboro, received the award in recognition of outstanding humanitarian service.
ARKANSAS BAR FOUNDATION WRITING AWARDS: Special Award of Merit
Jeff Rosenzweig Attorney at Law, Little Rock, for distinguished services and accomplishments in the legal profession.
Zachary T. Steadman received the general writing category for his article in the Fall 2016 issue of The Arkansas Lawyer: “Ransomware and Healthcare Providers.” Michael A. Thompson received the legal writing category award for his article in the Fall 2016 issue of The Arkansas Lawyer “The Emerging Field of Drone Law.” OUTSTANDING LOCAL BAR ASSOCIATIONS • Craighead County Bar Association • Independence County Bar Association • Washington County Bar Association Vol. 52 No. 3/Summer 2017 The Arkansas Lawyer
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Legal Aid of Arkansas Marks 50 Years
This year marks the 50th Anniversary of Legal Aid of Arkansas’ founding. Until 1964, legal aid organizations across the country were a hodgepodge of law school clinics, bar associations, private firms, social services agencies, municipal governments, and other entities that operated with little coordination and sparse funding. Then, the Economic Opportunity Act was passed and it initiated federal funding of legal aid programs across the country. The first federally-funded legal aid organization in Arkansas was Jackson County Legal Services Project, founded in 1967. Other legal aid organizations began operating over the next decade following the creation of the Legal Services Corporation. In 1974, the University of Arkansas School of Law began a legal aid clinic. By 1978, when LSC began funding legal aid organizations, the clinic, then Ozark Legal Services,
covered counties from Benton to Baxter. Around the same time, East Arkansas Legal Services began in Crittenden County and served those in the Arkansas Delta from Mississippi County to Phillips County. In 2002, the three organizations combined to form Legal Aid of Arkansas. Today, with six offices spread over 31 counties and a Medical-Legal Partnership office at the Arkansas Children’s Hospital, Legal Aid of Arkansas continues to serve low-income Arkansans facing civil legal crises. Legal Aid of Arkansas is joined in this effort by its sister legal aid organization, the Center for Arkansas Legal Services, which covers Arkansas’ remaining 44 counties. In the years since legal aid first arrived in Arkansas, both Legal Aid of Arkansas and the Center for Arkansas Legal Services have faced many challenges, ranging from demand that far outstrips capacity to limited
Celebrating 50 years of Legal Aid! 6:30 pm October 12, 2017 Chancellor Hotel 70 N East Ave Fayetteville, AR 72701
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and unstable funding. Despite this, Legal Aid of Arkansas strives to provide access to justice for as many Arkansans as possible. In 2016, the organization closed more than 7,000 cases, impacting over 19,000 household members. The organization’s staff helped low-income Arkansans avoid $4.95 million in liabilities and recover $2.43 million in damages. Legal Aid of Arkansas is helped by a strong pro bono network of more than 800 attorneys, which closed more than 500 cases in 2016. “The most humble among us should be the peer of the most affluent when seeking justice,” said Lee Richardson, Executive Director of Legal Aid of Arkansas. “In civil cases, that idea becomes a reality thanks to legal aid programs.” On October 12, 2017, Legal Aid of Arkansas will host a celebration of its 50th birthday at the Chancellor Hotel in downtown Fayetteville. The event begins at 6:30; distinguished speakers will address the attendees and Hillbilly Casino will perform. All members of the legal community are invited to attend the celebration of legal services in Arkansas. Attorneys are also welcome to join the Statewide Legal Aid Providers Conference beginning at 1pm on the 12th for training on various topics, including: Predatory Collection on Student Loans, Domestic Violence’s Impact on Employment, Statutory Non-Judicial Foreclosure, Ethics in Social Media, Adoption and Guardianship, and more. For more information about Legal Aid of Arkansas’ 50th Anniversary and associated events, visit www.arlegalaid.org or contact Elizabeth Tong at etong@arlegalaid.org.
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Discounts include an additional 5% when shipping labels are created online with FedEx Ship Manager® at fedex.com or with another approved electronic shipping solution. FedEx shipping discounts are off standard list rates and cannot be combined with other offers or discounts. Discounts are exclusive of any FedEx surcharges, premiums, minimums, accessorial charges, or special handling fees. Eligible services and discounts subject to change. For eligible FedEx services and rates, contact your association. See the FedEx Service Guide for terms and conditions of service offerings and money-back guarantee programs. Black & white copy discounts apply to 8-1/2" x 11", 8-1/2" x 14", and 11" x 17" prints and copies on 20-lb. white bond paper. Color copy discounts apply to 8-1/2" x 11", 8-1/2" x 14", and 11" x 17" prints and copies on 28-lb. laser paper. Discount does not apply to outsourced products or services, office supplies, shipping services, inkjet cartridges, videoconferencing services, equipment rental, conference-room rental, high-speed wireless access, Sony® PictureStation™ purchases, gift certificates, custom calendars, holiday promotion greeting cards, or postage. This discount cannot be used in combination with volume pricing, custom-bid orders, sale items, coupons, or other discount offers. Discounts and availability are subject to change. Not valid for services provided at FedEx Office locations in hotels, convention centers, and other non-retail locations. Products, services, and hours vary by location. © 2013 FedEx. All rights reserved.
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ARKANSAS CHAPTER The following attorneys are recognized for
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DISCIPLINARY ACTIONS Judicial Discipline & Disability Commission Actions On April 25, 2017, the Arkansas Judicial Discipline and Disability Commission announced that a Letter of Admonishment had been issued to Fifth Judicial Circuit Judge William “Bill” Pearson, of Pope, Johnson and Franklin Counties, in Commission case #17-109 and #17-112. On March 28, 2017, the Arkansas Judicial Discipline and Disability Commission announced that a dismissal with cautionary instruction letter has been issued to the Seventeenth Judicial District Judge Tom Hughes of the First Division Circuit Court in White and Prairie Counties, in Commission case #16-103, #16-179, #16260 and #16-284. The full press releases can be found online at http://www.state.ar.us/jddc/ decisions.html.
Attorney Disciplinary Actions Final actions from April 1, 2017 June 30, 2017, by the Committee on Professional Conduct. Summaries prepared by the Office of Professional Conduct (OPC). Full text documents are available on-line either at http:// courts.arkansas.gov and by entering the attorney’s name in the attorney locater feature under the “Directories” link on the home page, or also on the Judiciary home page by checking under “Opinions and Disciplinary Decisions.” [The “Model” Rules of Professional Conduct are for conduct prior to May 1, 2005. The “Arkansas” Rules are in effect from May 1, 2005.] DISBARMENT: JOHN SKYLAR “SKY” TAPP, Bar No. 76123 of Hot Springs, in case No. D-13-
150, by Supreme Court opinion issued on May 18, 2017, 2017 Ark. 185, was ordered disbarred on the basis of his combined “serious” misconduct in five of the six complaints involved in the disbarment case. In summary, the 112-page findings of fact filed by Special Judge John Lineberger found that Tapp violated multiple rules in each of the six complaints. In the Fenimore matter, Tapp filed two complex bankruptcies, one personal and another for an LLC for which he did not have LLC authorization to file. In the Dr. Hurst matter, Tapp failed to maintain his client’s $6,611 in his trust account from 2006 to 2012. In the Schlenker matter, Tapp created a conflict with his clients when he personally bought, at a foreclosure auction sale, a gutted condo that was the subject of litigation by Tapp for his clients who had claims against the owner of the condo Tapp bought (found to be lesser misconduct). In
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the Bowerman matter, Tapp filed pleadings for his client Bowerman in a lawsuit that failed to disclose Tapp had filed pleadings taking a contrary position for Bowerman in an existing suit with a different party over the same insurance premium debt. In the Riley divorce matter, Tapp failed to acknowledge an agreement his client made at mediation to be bound by the trial judge’s decision as to which of three custody options would be used in the case when the three options were presented to the judge by counsel pre-trial. In the Tankersley matter, Tapp filed improper lis pendens in October 2008 for two unrelated Tapp clients against an entire Lake Hamilton real estate development that had the effect of shutting down condo sales and killing the development, into which one Tapp client (Hampton) had invested or pledged about $900,000 and the other Tapp client (Hood) was contracted to receive the last condo built in the project, valued by the client at several hundred thousand dollars in 2007. The Tapp clients then suffered the loss of project investment or the expectancy of a nice condo. Between 1984 and 2013 Tapp accumulated 14 sanctions, 13 of which were public sanctions, including a 90-day suspension in the latest case, 2014 Ark. 374. (Note: at the publication submission deadline, Tapp has a motion for reconsideration pending.) SUSPENSION: WILLIAM KURT MORITZ, Bar No. 99021 of Hope, Arkansas, on a complaint filed by Michael R. Bair, by Committee Findings & Order filed June 12, 2017, in Case No. CPC 2016-153, received a Six Months License Suspension and $1,000 fine for violations of Rules 1.1, 1.3, 1.4(a) (3), 1.4(a)(4), and a separate Reprimand and $1,000 fine for failure to respond to the Complaint. Bair was a pro se defendant in a civil suit involving a promissory note, and a default judgment had been entered against him. The court issued an order to show cause against Bair for failure to provide a list of assets. Prior to court on December 15, 2015, Bair saw Moritz outside court and spoke to him. Moritz had represented Bair previously in a separate matter. For $500, Moritz agreed to represent Bair in the post-judgment matter. Bair was found
in contempt but allowed an opportunity to purge the contempt by preparing an accurate and complete schedule of assets within ten days of the entry of the court’s order. After court, Moritz told Bair that he would take care of everything and if he needed anything that he would call. Bair did not have any communication from Moritz thereafter. On July 27, 2016, a deputy from the Hempstead County Sheriff ’s Office took Bair to the Hempstead County Jail by order for Bair’s failure to comply with the April 18, 2016, order. Bair was held in jail until a cash bond was paid. Upon release, Bair called Moritz at his office, but Moritz was unable to speak to him by phone. Bair went to Moritz’s office, but Moritz was not there. Bair employed new counsel who filed the schedule of assets on Bair’s behalf. Moritz was served with the Committee’s Complaint, had 30 days to file a timely response, failed to do so, and, pursuant to § 9.C(4) of the Procedures, his failure to respond constituted an admission of the factual allegations of the complaint and extinguished his right to a public hearing. WILLIAM KURT MORITZ, Bar No. 99021 of Hope, Arkansas, on a complaint filed by Deborah Dillard, by Committee Findings & Order filed June 12, 2017, in Case No. CPC 2016-161, received a 60 Months License Suspension and $5,000 fine for violations of Rules 1.3, 1.4(a)(3), 1.4(a)(4), 1.16(d), 3.3(a)(1), 3.4(c), 4.1(a), 8.4(c), 8.4(d), and a separate Reprimand and $1,000 fine for failure to respond to the Complaint. Dillard and her siblings employed Moritz to represent their interests in the probate of their father’s estate. Their stepmother filed a will in Calhoun County Circuit Court and the siblings wanted to contest the will. There was no written fee agreement but the Dillard family paid Moritz $9,000 by check in August 2014. In September 2014, Dillard’s aunt provided her with a legal notice that was published in the estate. Dillard sent the notice to Moritz on September 3, 2014. In April 2015, Dillard sent an email to Moritz asking about the status of the case. Dillard sent other emails to Moritz and placed calls to his office and left messages requesting an appointment. There was no response from Moritz to any of the emails or telephone messages.
In May 2015, the Dillard family employed new counsel to represent their interests. The attorney sent notice to Moritz directing him to provide her with the Dillard client file. Moritz did not respond. Moritz was subpoenaed to appear at a deposition and provide the client file and did so prior to the deposition. The client file contained little information. Nothing was ever filed on behalf of Dillard and her siblings. The Dillard family filed suit against Moritz in July 2015. The parties were directed to attend mediation. Mediation resulted in an agreement that Moritz pay the Dillard family $7,000 by March 16, 2016. Moritz failed to pay the money. Trial was set for March 31, 2016. At trial, Moritz’s wife, an attorney, appeared on behalf of her husband. An agreement was reached that Moritz or his agent would deliver $7,600 to the office of the Dillard family’s attorney in Texarkana by no later than 4:00 p.m. on March 31, 2016. Moritz failed to deliver the money by the attorney’s close of business, leaving a note taped to the front door of the attorney’s office stating that he would bring the money the following day. He also left a message on the attorney’s telephone stating that he was trying to locate her office. Moritz spoke to attorney’s assistant the following day and advised that he would have the money at attorney’s office within 45 minutes. Moritz did not deliver the money on that day. Attorney placed a call to Moritz and advised that if he did not provide the money by end of business on April 4, 2016, she would file for contempt. A motion for contempt was filed and Moritz responded, admitting he was in contempt. A hearing on the contempt motion was heard on April 26. Following the testimony and exhibits, the court found Moritz in contempt and directed the Hempstead County Sheriff to take him into custody until he could cure the contempt. Moritz provided the money and was released from custody. On January 6, 2017, Moritz was served with a copy of the formal complaint and he failed to file a timely response, which pursuant to § 9.C(4) of the Procedures constituted an admission of the factual allegations of the complaint and extinguished his right to a public hearing.
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KYLE A. WEST, Bar No. 2012292 of Sherwood, Arkansas, in CPC 2015-103, by Committee Findings & Order filed June 20, 2017, on a complaint filed by the Sixth District Prosecuting Attorney, for violations of Rules 8.4(b) and 8.4(c), had his license suspended for 24 months and was directed to continue with the Arkansas Judges and Lawyers Assistance Program during his term of suspension. In July 2015, West was found guilty in North Little Rock District Court of misdemeanor Conduct Constituting Attempt to Obtain Drugs by Fraud and was sentenced to a one-year jail sentence, which was suspended, and fined $300. This conduct is classified as a “serious crime” under Section 2.J(3) of the attorney discipline Procedures, as it involves
misrepresentation, deceit or fraud. West presented forged prescriptions, purporting to bear the signature of a physician, at a drug store in an attempt to acquire a controlled substance. In his response to the Complaint, West admitted that at the time he presented the forged prescriptions he was impaired and knew the wrongfulness of his conduct. INTERIM SUSPENSION: THOMAS C. MORRIS, III, Bar No. 84110 of Bella Vista, Arkansas, in CPC 2017-010, by Committee Order of Interim Suspension filed April 21, 2017, was placed on Interim Suspension with a finding that Morris presently poses a substantial threat of serious harm to the public or his client(s).
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According to public records, Shoptaw was found guilty of criminal conduct, driving while intoxicated and refusal to submit, in Grant County District Court in 2015. In 2016, Shoptaw was charged in Little Rock District Court with public intoxication. He failed to appear in Little Rock District Court on that charge. Shoptaw is charged in Grant County Circuit Court with felony theft of property in No. 27CR-17-50.
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KYLE A. WEST, Bar No. 2012292 of Sherwood, Arkansas, by Committee Order of Interim Suspension filed May 1, 2017, was placed on Interim Suspension with a finding that West has been found guilty of a Serious Crime and poses a substantial threat of serious harm to the public or his clients. According to public records, West was found guilty in North Little Rock District Court of Conduct Constituting Attempt to Obtain Drugs by Fraud, a misdemeanor. Though a misdemeanor, the conviction is a serious crime under § 2(J) of the Procedures. West is additionally charged in Pulaski County Circuit Court with theft of property in Pulaski County Circuit Court Case No. 60CR-16-1209; charged in Little Rock District Court with theft of property and possession of an instrument of crime in Little Rock District Court Case No. LRCR-17-266; and, charged in Pulaski County District Court with burglary and theft of property in No. PCS-17-1867. REPRIMAND:
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BRYAN L. POWELL, Bar No. 2003151 formerly of Bentonville, Arkansas, and now residing in Ohio, in CPC 2017-012, by Committee Order of Interim Suspension filed May 19, 2017, was placed on Interim Suspension with a finding that Powell poses a substantial threat of serious harm to the public or his clients. 44
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STEPHEN A. SHOPTAW, Bar No. 2012145 of Prattsville, Arkansas, in CPC 2017-013, by Committee Order of Interim Suspension filed May 19, 2017, was placed on interim suspension on a petition filed by the Executive Director that alleged Shoptaw poses a substantial threat of serious harm to the public or to the lawyer’s clients.
JAMES F. VALLEY, Bar No. 96052 of Helena-West Helena, by Consent Findings & Order filed April 21, 2017, in CPC 2016-164, for his violation of Rule 8.4(d), consented to a Reprimand and $100 fine. Sherrie Currie was charged with a felony offense in Craighead Circuit Court in Jonesboro. Valley, of Helena, entered his appearance for Currie. Valley’s oral motion for a continuance of Currie’s trial was granted and an Order was entered setting her motion and plea day for October 2, 2015, and the jury trial for October 1923, 2015. On October 20, 2015, at 9:17 a.m., Valley filed a notice of intent to rely on mental disease or defect as Currie’s defense. The same day two orders for
Currie’s mental evaluation were filed. On the morning of October 21, 2015, Dr. Thomas examined Currie. That afternoon Dr. Thomas testified by telephone at a hearing on the Currie motion, stating she was fit for trial. The trial judge announced Currie’s jury trial would start the next morning, October 22. Valley told the judge he would not attend the Currie trial as he had been subpoenaed to be a witness in a case in Phillips County District Court on October 22. The trial judge directed Valley to attend the Currie trial. Court convened on the morning of October 22, 2015, for the Currie jury trial, with a pool of 59 jurors and Ms. Currie present. Valley did not appear. The jury was sent home. Ms. Currie’s trial was reset for December 10-11, 2015. At 9:20 a.m. on October 22, 2015, Valley fax-filed a notice of contest of Dr. Thomas’s findings and a “Second Notice of Conflict With Court Date [October 22] with a copy of the witness subpoena issued October 19, 2015, by the Helena-West Helena District Court for a court appearance on October 22, 2015. Valley attended court in Helena district court on the afternoon of October 22. On October 22, 2015, an order of continuance and resetting her jury trial for December 10-11, 2015, signed by Currie, was filed in Currie’s case. On October 22, 2015, at 11:04 a.m., the State filed a Motion to Show Cause directed to Valley for his failure to attend Currie’s trial on that date, and an Order was entered setting the show cause hearing for November 18, 2015. The show cause hearing was held November 18, 2015. A transcript was prepared. Valley testified or did not dispute assertions that he made no effort to seek a continuance of the Helena District Court case or to quash that witness subpoena, timely seek a continuance in the Currie case, or to provide the judges in the respective cases an opportunity to confer and see if they could resolve Valley’s October 22 conflict between the two courts. At the conclusion of the hearing, Judge Fowler found Valley was in willful contempt and ordered him to pay $885 for the jurors dismissed and paid by Craighead County, $114.80 in restitution to the Prosecutor’s Office, and a fine of $500.00. An Order of Contempt was filed January 5,
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2016, setting out the court’s findings and sanctions against Valley, who appealed. Valley tried Currie’s case to a jury, she was found guilty, and the Sentencing Order was filed December 14, 2015. The Supreme Court issued its Opinion in Valley v. State on December 8, 2016, 2016 Ark. 443, unanimously affirming the trial court’s order of contempt against Valley.
Lawyer The Arkansas
A publication of the Arkansas Bar Association
Vol. 51, No. 1, Spring 2016 online at www.arkbar.com
Inside: Mock Trial Competition Independent Contractor Status New Venue Statutes Professional Licensing
CAUTION:
YOU ARE THE EXPERTS Contact the Association if you have article ideas for The Arkansas Lawyer magazine. Email: ahubbard@arkbar.com For more information on the submission process, go to http://tinyurl.com/ thearkansaslawyermag or call 501-375-4606
From the ordinary to the most complex, no appeal is too small or large Writing Briefs to the Arkansas Court of Appeals, the Arkansas Supreme Court, the Federal Circuits and the United States Supreme Court
JOHN A. LEWRIGHT, Bar No. 2002054 of Cassville, Missouri, in CPC 2016-134, by Findings and Order filed April 18, 2017, was cautioned for failing to file a response after being served with a formal Complaint against him from the Office of Professional Conduct and fined $500. WEEKLY CASE SUMMARIES of significant Arkansas Supreme Court and Arkansas Court of Appeals cases are provided exclusively for members Receive your quick preview early— Join the ArkBar Case Summaries community on ACE .
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Robert S. Tschiemer
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LAW OFFICES OF
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Arkansas Bar Foundation 2224 Cottondale Lane, Little Rock, Arkansas 72202 www.arkansasbarfoundation.com • 501.375.4606
Memorials and Honoraria The Arkansas Bar Foundation acknowledges with grateful appreciation the receipt of the following memorial, honoraria and scholarship contributions received during the period January 1, 2017 through June 30, 2017. In Memory of Melanie Ruth Carlson Roscopf & Roscopf, P.A.
In Memory of Scott Vaughn Patti and Charles Coleman
In Memory of Ralph Clifton Roscopf & Roscopf, P.A.
In Memory of Judge Perry V. Whitmore Hayden and Gordon Rather B. Jeffery Pence Sue and Judge John Plegge
In Memory of Jay W. Dickey, Jr. Jennifer and Randy Coleman Mr. and Mrs. Don A. Eilbott Hayden and Gordon S. Rather In Memory of Garnett Louise Donnelly Watts, Donovan & Tilley, P.A. In Memory of Don Richard Elliott, Sr. Judge Cathi Compton and Judge Bill Wilson In Memory of Richard “Dick” Jarboe Michael R. Gott, P.A. In Memory of Jesse “J.C.” Manning Don A. Eilbott In Memory of Stephen A. Matthews Suzanne and H. David Blair Judge Robert T. Dawson Don A. Eilbott Philip E. Kaplan Hayden and Gordon Rather Laura H. Smith Fred Ursery Judge Cathi Compton and Judge Bill Wilson In Memory of Jerry D. Nixon Don A. Eilbott In Memory of William L. Terry Philip E. Kaplan Fred Ursery Judge Cathi Compton and Judge Bill Wilson
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In Memory of Judge Walter G. Wright Roscopf & Roscopf, P.A. Marcella J. Taylor In Memory of David Solomon Designated to the David Solomon Scholarship Fund Philip S. Anderson Anthonette Akins William D. Boatwright Callie S. Brandon Lanie & W. H. Brandon Donna and Patrick Butler Clatworthy Law Firm, P.R. Clatworthy, Chris and Mildred Patti and Charles Coleman Cathy and Ernest Cunningham Judge Robert T. Dawson William Groves Dinning III and Sharum, Darcy and Tanner Ida and Louis Etoch and Etoch Law Firm Judge Audrey R. Evans Kimberly Ferzan Carol Flannery Laura Kalman and W. Randall Garr Glaub Farm Management, LLC Donis Hamilton Roy Helton Jr. and family Philip E. Kaplan Patrick G. Kavanagh Susan Leverone Jill and Clarence Mayer Theresa A. McCuen
Jeffrey and Lester McKinley Helen and Russell Morgan W. Frank Morledge Anne V. Dalesandro and James J. Morley Martha Morse Craig Oren Miriam and Harold Reddicliffe Jane Bradley Rice Robbins Family: Ruth Anne, Steve, Shelby and Gwen Roscopf & Roscopf, P.A. Donna Schragis Ronald A. Schroeder Anna and Michael Sepanic Jim Shaver Family Southern Bancorp Jan and James Sprott Elizabeth and Thomas Swann Dinny and Mark Taylor Peggy Howe Webster Pat and Buddy Wheeler Judge Cathi Compton and Judge Bill Wilson Mr. and Mrs. Earl W. Wilson, Jr. Barbara Zakin Scholarship Contributions and Gifts In Honor of Sally and Jim McLarty Jeffrey and Lester McKinley Thank you to the following donors who contributed to their named scholarship endowment: Friday, Eldredge & Clark, LLP Jeffrey and Lester McKinley Sebastian County Bar Association Wright, Lindsey & Jennings LLP
Arkansas Bar Foundation News Judge John N. Fogleman Elected Arkansas Bar Foundation President
Arkansas Bar Foundation Welcomes New Employee
Judge John N. Fogleman began his term as President of the Arkansas Bar Foundation Board of Directors for the 2017-18 bar year immediately following Annual Meeting in mid-June, 2017. He graduated from Arkansas State University with Distinction in 1978, and he received his Juris Doctorate from the University of Arkansas School of Law with Honors in 1981. Judge Fogleman has served as Circuit Judge for the State of Arkansas’ Second Judicial District since 1995. Prior to 1995, Judge Fogleman was in private practice with the firm of Hale Fogleman and Rogers and served as the City Attorney for the City of Marion and Deputy Prosecuting Attorney for CritJudge John N. Fogleman tenden County. He has been a Fellow of the Arkansas Bar Foundation since 2004 and is a Sustaining Fellow. Judge Fogleman has served the Foundation as a member on the Board of Directors, as Secretary-Treasurer and Vice President, and a member of the Trust and Special Projects Committees. He has also been active in numerous leadership capacities over the years for the Arkansas Judicial Council and Arkansas Bar Association. He was awarded Outstanding Trial Judge in 2008 by the Arkansas Trial Lawyers Association. As he begins his term as Foundation President, Judge Fogleman states: “The practice of law is a privilege and not a right. With that privilege comes a corresponding duty to give back to the profession that has provided us with so many opportunities. There is no better place to fulfill that duty than the Arkansas Bar Foundation.” Active in his community, he has served as President of the Marion Chamber of Commerce, a member of the Board of Directors for the Marion School District, and was pro bono legal advisor for the Marion Youth Sports Association, Inc. He has been a lifelong and active member of Marion United Methodist Church, and he enjoys golf and history. Judge Fogleman and his wife, Nancy, call Marion home. They are the parents of two sons, John and Adam.
The Arkansas Bar Foundation welcomes Jennifer Johnson as the new Associate for Finance and Administration who began her work with the Jennifer Johnson Foundation in late March. A native of North Little Rock and a graduate of the University of Central Arkansas, Jennifer relocated back to the Little Rock area recently after working and raising her family in the Houston, Texas, area. The Arkansas Bar Foundation will publish its next page of memorials in the Winter 2018 issue of The Arkansas Lawyer recognizing gifts from July 1 – December 31, 2017. Memorial and other gifts are updated regularly on the Foundation’s website on the news page at www.arkansasbarfoundation.com. Please note the Foundation’s email address has changed! Ann Pyle can be reached at apyle@arkansasbarfoundation. com. Jennifer Johnson can be reached at jjohnson@arkansasbarfoundation.com.
Arkansas Bar Foundation Save the Date!
First Annual Foundation Friendraiser
Rockin on the River Friday, October 13, 2017 5:00 until 7:00 p.m. BBQ, beverages and music on the Arkansas Bar Center Plaza
Portion of the net proceeds with be designated to the Mock Trial Program
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IN MEMORIAM Ralph Michael Clifton Ralph Michael Clifton of Brinkley died April 20, 2017, at the age of 68. He was a 1967 graduate of Brinkley High School, graduated from Arkansas State in 1972 and continued his education at the University of Arkansas at Fayetteville, graduating with a degree in Law. While in college he became a member of the Kappa Alpha fraternity. After graduating law school, Ralph returned to Brinkley to care for his mother and began his general law practice with Attorney Dan Kennett and continued his practice in Brinkley until his death. He was qualified to practice law in any court in Arkansas. He was very active in the Brinkley community, serving as the city attorney for 31 years, prosecuting misdemeanor violations within the city of Brinkley. He was a recipient of the Arkansas Municipal League, Jack R. Roe award for 25 years of distinguished service in Brinkley
and a member of the Phi Alpha Delta Law Fraternity International since 1978.Ralph was past president of the Brinkley Chamber of Commerce, and an active member of the Brinkley Rotary Club where he was recipient of the Paul Harris Fellow Award. He was a faithful member of St. John the Baptist Catholic Church, and a 4th degree Knight of Columbus, serving as Grand Knight for 20 years. He was a member of the Arkansas Bar Association where he served on the House of Delegates. Richard Allen “Dick” Jarboe Richard Allen “Dick” Jarboe of Walnut Ridge died April 1, 2017, at the age of 72. He earned his J.D. from the University of Arkansas School of Law in 1969. He practiced law with Leroy Blankenship and the late Attorney Harry Ponder of Walnut Ridge. He was a member of the
Arkansas Bar Association where he served on the House of Delegates. In an open letter from Northeast Arkansas Legal Community which was artfully penned by District Judge Adam Weeks and Deputy Prosecuting Attorney Ryan Cooper, this was said about Dick: “Lawrence County lost a great man on Saturday. The legal community lost a legend. Dick Jarboe was a lion. His acumen and legal reasoning was coupled with a good-natured humor and a folksy charm that endeared him to fellow lawyers and judges alike. Dick was a respected colleague and a legend in the legal field, but more than that, he was a good man, a wise man, a trusted man, a sympathetic ear, a mentor, and even though it is a simple word that falls far short of the man....Dick Jarboe was our friend and he will be missed.”
The information contained herein is provided by the members’ obituaries.
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ation as a member benefit. e investing. This Disclosure Document contains important information about the Program and investment options. For
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oya and the ABA Retirement Funds are separate, unaffiliated entities, and not responsible for one another’s products
Savings calculations are based on SoFi J.D. borrowers who refinanced between 5/21/14 and 7/11/14. Prior to refinancing, these borrowers had on average a $89,289 loan balance, a rate o refinancing with SoFi, these borrowers have an average lifetime payment of $109,850 based on an average received fixed rate of 5.00% and all terms offered by SoFi with AutoPay. Savings If approved for a loan, the fixed or variable interest rate offered will depend on the borrower’s credit history and will be within the ranges of rates listed above. For the SoFi variable rate pro and changed monthly. APRs for variable rate loans may increase after origination if the LIBOR index increases. The SoFi 0.25% AutoPay interest rate reduction requires you to agree to make or checking account. This benefit will discontinue and be lost for periods in which you do not pay by automatic deduction from a savings or checking account. ***Payment will be issued el
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IT’S TIME TO DO YOUR LPL DIFFERENTLY. It’s time for you to talk to the professionals at ArkBar Insurance Services about your professional liability insurance program. Our LPL plan is offered by Stephens Insurance, an Arkansas company with Arkansas people servicing your business right here in Arkansas. Take the time. Call Stephens’ ArkBar Insurance Services professionals today.
Richard Henry Senior Vice President (501) 377-8448 richard.henry@stephens.com
Bill Cobb Senior Vice President (501) 377-8305 bill.cobb@stephens.com
Matthew P. Waddell Producer, Commercial Lines P&C (501) 377-2247 matt.waddell@stephens.com
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