Lawyer The Arkansas
A publication of the Arkansas Bar Association
Vol. 52, No. 4, Fall 2017 online at www.arkbar.com
A Celebration of 50 Years of The Arkansas Lawyer magazine
The Arkansas
Lawyer A publication of the Arkansas Bar Association
2015-2016 Arkansas Bar Association President Eddie H. Walker, Jr.
Vol. 50, No. 3, Summer 2015 online at www.arkbar.com
Lawyer The Arkansas
A publication of the Arkansas Bar Association
Inside: Mock Trial Competition Independent Contractor Status New Venue Statutes Professional Licensing
Vol. 51, No. 2, Spring 2016 online at www.arkbar.com
Referrals with Results The Benefits of Partnering with Hare Wynn
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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 President-Elect Designee Brian M. Rosenthal 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 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.
The Arkansas
Lawyer Vol. 52 No. 4
features
12 Arkansas Supreme Court Appeals on Wheels Program J. Nicholas Shumate 14 The Arkansas Lawyer Magazine Celebrates 50 Years By Anna Hubbard and Cathy Underwood 20 A Short Recent History of the Death Penalty in Arkansas By Jeff Rosenzweig 26 Howell v. Howell: A Refresher on Dividing Military Retirement in a Divorce By Anthony McMullen 30 2017 National Conference of Commissioners on Uniform State Laws By J. Cliff McKinney 32 Women in the Legal Profession: A Panel Discussion 46 VOCALS—Celebrating 35 Years of Service By Jean Carter Panel Photos by Michael Pirnique
LIAISON MEMBERS Judge Stephanie A. Casady Patti Julian Judge John N. Fogleman Harry Truman Moore Karen K. Hutchins Richard L. Ramsay Casey Carder Rockwell 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.
Contents Continued on Page 2
Lawyer The Arkansas Vol. 52, No. 4
in this issue ArkBar News
4
Board of Governors Report
10
Arkansas Bar Association Member Benefits
44
Disciplinary Actions
51
In Memoriam
54
Classified Advertising
56
columns President’s Report
7
Anthony A. “Tony” Hilliard
Young Lawyers Section Report
9
Eric A. Marks
The Arkansas
Lawyer A publication of the Arkansas Bar Association
Vol. 51, No. 1, Winter 2016 online at www.arkbar.com
Inside: Same-Sex Marriage Judicial Campaign Finance The Arkansas Supreme Court During World War II Arkansas LLCs Guardianships of Minors
Advertise in the next issue of The Arkansas Lawyer. Opportunities also available on ArkBar’s website & weekly ebulletins. www.arkbar.com/for-attorneys/ publications/the-arkansas-lawyer/ advertising
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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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Every George Counts with the ABA Retirement Funds Program.
When saving for retirement every George counts. As a not-for-profit corporation, the ABA Retirement Funds Program features no out-of-pocket firm expenses and low institutionally-priced funds for participants. Learn how the ABA Retirement Funds Program can help you reduce plan costs so that every George can count towards your retirement.
Contact an ABA Retirement Funds Program Regional Representative today. 866.812.1510 www.abaretirement.com joinus@abaretirement.com
All ABA Retirement Funds Program fees are allocated to each investment option (excluding brokerage accounts) and are reflected in each Fund’s expense ratio. These fees are the only costs charged to participants (or employers) for participating in the Program. There are no additional costs to the employer or out-of-pocket expenses for participants. Clients may incur additional expenses through the use of outside service providers, such as a TPA or CPA, to support their plan design or responsibilities as a plan sponsor. Participants may incur costs by opting for certain advisory services or by utilizing the self-directed brokerage account option. 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), as supplemented (July 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 The Arkansas Supreme Court Announces New AOC Director and Judicial Branch Education Director
2018 Mock Trial Competition Call for Volunteers
The Arkansas Supreme Court announced in October that Marty Sullivan was hired to permanently head the Administrative Office of the Courts (AOC), after serving several months as a temporary director of the office. Sullivan, who has worked with the AOC since 2003, became its interim director in March, replacing longtime director J.D. Gingerich. In a news release, Chief Justice Dan Kemp said Sullivan would assume the role permanently. The position oversees Marty Sullivan the administrative business of the judicial branch of government. Sullivan said he is excited about the future of the courts in Arkansas. “The Administrative Office of the Courts has long had the motto, ‘Supporting Courts, Ensuring Justice,’” Sullivan said. “As Director, it is my goal to refocus on and stress the importance of that mission as we embrace new technological solutions, improve efficiency, and promote new thinking to meet the challenges courts face in Ben Barham the 21st Century. I am honored and humbled by the trust placed in me by the Arkansas Supreme Court and excited about the future of courts in our state.” The AOC also announced that Ben Barham started working as the Judicial Branch Education Director in April of 2017. Before coming to the AOC he served as a Deputy Prosecuting Attorney in the 6th Judicial Circuit, Pulaski County. Ben completed the Arkansas Bar Leadership Class in 2015 and, as a member of the Arkansas Bar Association, serves on the Professional Ethics Committee and the Jurisprudence and Law Reform Committee.
It’s that time of year again! The Arkansas Bar Association Mock Trial Committee has just released the case materials for the 2018 High School Mock Trial Tournament, and high school students across the state are beginning to prepare for trial this spring. In preparation for what we anticipate to be recordbreaking participation, we need more volunteers than ever. The tournament is scheduled for Friday, March 2 and Saturday, March 3 in Little Rock. There is no prior Mock Trial experience necessary to judge one of our rounds! The Mock Trial Committee provides a volunteer orientation prior to each round of competition. To volunteer, please visit https://www.arkbar. com/armocktrial/home.
ArkBar Welcomes New Staff Members and Kristen Frye as CLE Director The Arkansas Bar Association recently hired two new staff members and promoted one staff member to a new position. Kristen Frye is the association’s new CLE Director. As ArkBar’s CLE Coordinator for the past eight years, Kristen has already been instrumental in administering the statewide CLE program. “Kristen’s attention to detail and congenial determination will propel our CLE program beyond our recent advances across the state,” Executive Director Karen K. Hutchins said. Kristen lives in Benton with her husband Rob and two sons Talan and Ryker and Kristen Frye Alexis Teal dog Dexter Tate. She is a volunteer with Make-A-Wish and teaches a weekly preschool Awana program at her church. Alexis Teal joins the association’s staff as the CLE Coordinator. Alexis most recently worked in association management and is highly skilled in meeting planning and organizational leadership. Alexis lives in Little Rock with her husband, Rich, two sons Cannon and Aiden, three dogs (Bandit, Copper and Bob) and two cats (Polka Dot and Plinka). Alexis enjoys meeting new people and making people laugh. ArkBar also welcomes Ann Bridgman as the association’s Marketing & Information Specialist. Ann brings extensive customer relations experience as well as comprehensive capabilities in data management and marketing to the association. Prior to joining the association, Ann worked in the personal care manufacturing industry in Memphis, Tennessee. She spends much of her time volunteering with animal rescue groups and looking after her Ann Bridgman own rescue pets, Randall, Rudy and Fletch. As an alumni of the University of Memphis, she loves the Tigers. She is also a big fan of the Memphis Grizzlies. “Our ArkBar team remains committed to providing outstanding services to our members and the legal profession,” Hutchins said. “Kristen, Alexis and Ann each bring unique qualities which support our commitment to our members.” 4
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ArkBar News
Oyez! Oyez! ACCOLADES Mitchell, Williams, Selig, Gates and Woodyard, P.L.L.C. member Jane Duke has been selected to serve as faculty at the International Association of Defense Counsel’s Trial Academy. The St. Thomas More Society of Arkansas honored David Menz of Williams & Anderson, PLC with the St. Thomas More Award for his service to his church and his profession. Arkansas State University announced today the establishment of the Price and Sara Gardner Pre-law Scholarship, the first scholarship established for pre-law students at A-State. Price Gardner is a partner with Friday Eldredge and Clark LLP. Allison Cornwell of Friday, Eldredge & Clark has been named a Fellow of the American College of Trust and Estate Counsel. Michelle Ator of Friday, Eldredge & Clark, LLP has become a Fellow of the American College of Trial Lawyers.
APPOINTMENTS AND ELECTIONS Governor Asa Hutchinson has appointed John Thomas Shepherd of El Dorado to serve as the prosecuting attorney for the 13th Judicial District.
WORD ABOUT TOWN Williams & Anderson, PLC, and Allen Law Firm, A Professional Corporation, announce the merger of the two firms effective October 1, 2017, under the style of Williams & Anderson, PLC. Quattlebaum, Grooms & Tull PLLC announced that Christoph Keller joined the law firm’s Little Rock office. Joshua C. Ashley, Kyle D. Kennedy and Taylor A. Stockemer have joined the Little Rock law firm of Friday Eldredge & Clark. Christopher D. Brockett has been made a member of Robertson Beasley Shipley & Robinson PLLC in Fort Smith. Maricella Garcia has been hired as Little Rock’s multicultural liaison. Steve Zega has joined Cypert, Crouch, Clark & Harwell, PLLC, in Springdale, Arkansas. Please send Oyez announcements to ahubbard@arkbar.com.
The American Bar Association presented Bill Waddell, partner with Friday, Eldredge & Clark, with the Pro Bono Publico Award in New York on August 12. Bill is pictured with his wife Patty. Bill was one of five national recipients of the award, which is given to individual lawyers and institutions in the legal profession that have demonstrated outstanding commitment to volunteer legal services for the poor and disadvantaged.
The Arkansas Judges and Lawyers Assistance Program (JLAP) honored the following individuals at its Annual Advocates Dinner on November 7. The 2017 Justice Robert L. Brown Community Support Award was given to Gail Harber, PhD, the first JLAP Executive Director. The 2017 Distinguished Service Award went to the members of the JLAP Inaugural Committee 2000: Dr. Phillip Barling, Hon. Kathleen Bell, Gary Burbank, Gail Harber, PhD, Hon. David Laser, Joe Martindale, MD, Janet James Robb, Jim Smith and Chris Thomas (posthumously). JLAP thanks the honorees for their service.
Brian M. Rosenthal New Arkansas Bar Association President-Elect Designee Brian M. Rosenthal of Little Rock is the new PresidentElect Designee of the Arkansas Bar Association. He was elected without opposi tion at the close of nominations on October 31, 2017. Brian is an attorney with Rose Law Firm in Little Rock. He serves as coun sel in commercial transactions, real estate and environmental matters. He has been an active member of the Association for more than 28 years and has served in numerous leadership roles, including chair of the Board of Governors and chair of the 2006 Annual Meeting. He served on the Arkansas Supreme Court’s Professional Practicum Committee, including as chair. He is currently serving as Co-Chair of the Member Benefits Committee (along with his partner David Mitchell) and is serving on the 20/20 Commission. Brian is a Fellow of the Arkansas Bar Foundation and of the American College of Environmental Lawyers. The Association has honored Brian with four Golden Gavel Awards, a Presidential Award of Excellence and the Charles L. Carpenter Award. Brian earned his Bachelor of Science in Business Administration from the University of Arkansas and his Juris Doctorate from the University of Missouri. Brian expresses his excitement to serve and his gratitude to all bar members. He asks that you contact him at any time with your ideas and suggestions. He is particularly thankful to his firm and looks forward to working with the Association and Karen Hutchins. Brian will assume the office of President at the Association’s 2019 Annual Meeting. Brian will serve a one-year term as President-Elect beginning in June 2018 before assuming the office of President at the Association’s 2019 Annual Meeting. Vol. 52 No. 4/Fall 2017 The Arkansas Lawyer
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ArkBar News Congratulations to Members of the Arkansas Bar Association Celebrating Their 25th Year of Practice
Laura J. Andress Dr. James R. Baber James A. Badami Melody Peacock Barnett Stanley V. Bond Ted Botner, Jr. Lara Elizabeth Bowles Robin Y. Bray Rebecca K. Brown Randall S. Bueter Mark C. Burgess Roger N. Butler, Jr. Steven W. Caple Neil R. Chamberlin Victoria Charlesworth Thomas M. Clark Kevin W. Cole Phillip D. Cook
James W. Couch Roland E. Darrow II Thomas F. Donaldson David M. Dryer Carol M. Duncan April D. Durham Blair Beavers Evans John P. Fletcher Lyle D. Foster Daniel R. Francis Donna Marie Frazier Mark T. Fryauf Carolyn Ann Gai Robert J. Gibson Wilma Elizabeth Goss Judge Robin F. Green Randy L. Grice Janet G. Hamilton Betty J. Hardy Rita Reed Harris Carrol Ann Hicks Ann Hill Martha McKenzie Hill Daniel W. Honey Wendell Louis Hoskins II Leana Houston
Honorable Ann Beane Hudson Michelle C. Huff Jim Jackson Michael Todd Jackson Fred E. Jones, Jr. Trent C. Keisling Sean T. Keith Kenneth J. Kieklak William R. Kincaid Stephen R. Lancaster R. Christopher Lawson Stephen F. Libby Chrisopher B. Lyons Mark Mayfield Marc McCune Lisa G. McGriff Roger McNeil Timothy J. Myers Mary G. Nash Brady Paddock Laura E. Partlow Thomas W. Pennington Kathleen Malone Pitcock W. Marshall Prettyman, Jr. Michael J. Ptak C. Grant Purdy
You’re more than a lawyer. Spend more time doing what you love. Manage your legal practice from any device, anywhere and keep your practice running smoothly. Try Clio for free at landing.clio.com/arkbar
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Jeffrey W. Puryear James D. Rankin III Jim Doyle Rankin, Jr. Roger L. Ray Warren Readnour Catherine M. Richart Donnie W. Rutledge, II William Arbor Scott Charles E. Sharpe III James P. Stanzell Michael D. Stevens Edward C. Swaim Robert D. Teague Caren L. Thompson Jenifer S. Tucker Shawn D. Twing Michael P. Vanderford T. Scott Varady Valerie A. Wallent Lloyd Eugene Ward K. Coleman Westbrook, Jr. Tony L. Wilcox Fred A. Wood II Steven S. Zega Bart Ziegenhorn Jennifer Gay Ziegenhorn
PRESIDENT’S REPORT
Small Town Lawyer Anthony A.”Tony” Hilliard
I enjoyed the new lawyer swearing-in on October 6. As they raised their right hands and swore their Oath of Office to defend the Constitution I was surrounded by their families excited for the future. Chief Justice Kemp reminded them to give back to their community and the importance of balance between work and family and to make time for their families. It was also special because I witnessed friends celebrating with their children. A friend’s daughter from Pine Bluff. A granddaughter of an old Cabot friend. The daughter of my wife’s second cousin (that is still “kin” in Arkansas). In visiting with families I found there were new lawyers from all over Arkansas and points beyond, but when I asked where they wanted to practice, the cities listed were Little Rock, Fayetteville, Jonesboro and Dallas. No one was interested in moving to a small town. The late Senator Dale Bumpers wrote an autobiography titled “The Best Lawyer in a One Lawyer Town” about his life and work in Charleston, Arkansas, before he became governor of Arkansas. He helped guide the Charleston School Board when the school district fully integrated in the fall of 1954. I have often wondered if he would have enjoyed the same success if he had worked in a larger city.
In September I returned to my birthplace, Rison, Arkansas, for the dedication of the high school football field as the “George Walker Field of Champions.” George and Jackie Walker have been friends a long time. I know George as a Christian, banker, great father and grandfather and amazing person. Most of Arkansas knew him in the 1950s as Mr. Razorback football. The world needs a LOT more people like George and Jackie Walker. But there we were in Rison, Arkansas, on an early fall evening. The stands were packed and I suspect most of Rison was there. They even had end zone bleachers to accommodate the crowd. As I sat in the stands watching the game, some homemade candy came down the row followed by homemade party mix. At the conclusion of every play I heard a running commentary of whose child or grandchild made the tackle or the key block or ran the ball. I looked over and thought I saw Bill Humphries, the only lawyer with an office in Cleveland County, also enjoying the game and the event. I love small town football and small town life. There is no Mayberry (for you younger lawyers, Mayberry was the fictional hometown of Sheriff Andy Taylor) but there are some real advantages to working and living in a smaller town. You are a needed and very
important member of that community. You will not be lost in the shuffle, but have a chance to be that key person helping the entire community with its legal needs. In addition, I believe it is easier to find that balance for faith, family and work in a smaller town. As a preacher’s kid in West Helena, I remember Gene Schieffler walking to and from his law office with time to stop and watch his sons and the rest of us playing whatever sport was in season on our little field of dreams. He still had time to make a big difference in that small community. On October 5 Judge Edwin Alderson died. Read his obituary in the Arkansas Democrat Gazette on October 8. I knew him back in the 1980s when I worked in El Dorado. The first wedding my wife ever performed was for him and Diane. After reading his obituary and seeing the difference he made in El Dorado you will understand why the world desperately needs another lawyer like Edwin Alderson and his late law partner Bill Nolan. Ready access to local lawyers is key to defending our Constitution and ensuring access to justice, both for the poor who often can’t drive to Little Rock as well as our communities who need the leadership and legal counsel of a local lawyer. UA Little Rock Bowen School
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.
of Law Dean DiPippa is excited about “The Finch Society,” formed to encourage new lawyers to practice in smaller towns and helping them find the tools they need to succeed. Often, it will involve working with an older lawyer ready to retire but needing someone to step into his or her practice. We need more lawyers in the smaller communities. Regardless of where you practice, you must find your place in a community and find that path to contribute beyond yourself. On October 6 I was honored to participate in the Red Mass at the Cathedral of St. Andrew. Not being Catholic, my friend Judge Butch Hale helped guide me through the service (thanks Butch). Afterwards I joined the St. Thomas Moore Society for lunch where they honored David Menz for his service to his church and his profession. David knows his “small town” community within his church, even in Little Rock, where he is able to make an important difference. The world needs another lawyer like David Menz. I encourage all of you to find your small town where you are that access to justice.
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ArkBar News Congratulations to the New ArkBar Members Admitted to the Practice of Law October 2017 On October 6, 2017, the Arkansas Bar Association held a welcome event at the Arkansas State Capitol for all new attorneys following the Arkansas Supreme Court’s swearing-in ceremonies. Association President Tony Hilliard, Judge Wiley Branton, Judge Mary Spencer McGowan, U.S. Magistrate Judge Beth Deere and other representatives from the Arkansas Bar Association, Judicial Council, Federal Courts, and State Judiciary welcomed the new attorneys and their families. The new attorneys had the opportunity to have their photograph made by a professional photographer, Michael Pirnique, in the historical Old Supreme Court chamber. The new members were provided a copy of the Statute of Limitations handbook and other valuable resources to help them with the beginning of their practice.
Association President Tony Hilliard (left photo) and Judge Wiley Branton (right photo) speak to the crowd. Leslie Brett Abernathy Pamela Renee Abrams Cassie Elizabeth Adams Katelyn R. Admire Corey Evan Anderson Kevin Leo Archer Estefania Arteaga Lauren Elizabeth Barg James Ryburn Baxter Payton Cews Bentley James Harrison Berry Bradley Thomas Binns Kelsey Leanne Boggan Dylan James Botteicher Tess Elizabeth Bradford Katie Waltrip Branscum Lauren Elizabeth Brewer Blake Zweifel Brizzolara Kelly Kristine Brown James Robert Brown Benjamin Nelson Brunner Johnathon Daniel Burgess Jim Alan Burke Lindsey Daniele Burnette James Joseph Burrus John Anderson Butler Katherine Elizabeth Calaway Madison Danielle Cameron Bradley Doyle Carlton Frances Elizabeth Carson Michael Riley Cathey Jonathan Craig Ciginero Alexander Dylan Clark
Mildred Inez Clark Eric Marshall Collins Parker Ferguson Cope Laura Elizabeth Cox Jared A. Davis Mitchell Steven Dennis Jonathan Michael Dixon Natalie Marie Dodd Arno Jules Easterly IV Rhonda Lynn Edwards Eric Holland Eggburn Sarah Catherine Everett Kyla Marie Farler Nathan Reuben Finch Adrian R. Frank Elaine Marie Frigon Benjamin Franklin Fruehauf Amelia C. Fuller Houston Race Garner Julius John Gerard IV Brady Marcus Ghan Catelyn Jane Gibbs Alexandra K. Gonzales Jennifer Brooke Goodwin Verity Louise Grace Cameron Misty Aaron Grady Douglas Bryan Harlan Calvin Francis Harrell III David Trent Harrison Trevor Scott Hawkins Rachel Elizabeth Hildebrand Joseph Christopher Hoke Melissa Kaye Hollowell
Pamela Abrams (2nd from left) and family
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Inez Clark
Mary Elise Holman Michael Benjamin Honaker Bradley Hull Christopher Magdy Hussein Kyle D. Kennedy Kelsey Leigh Kent Bailey Nicole Knapp Joseph Martin Kraska Lauren A. Kuhlmann Stephen Reese Lancaster Hayden L. Lovelace McKenzie Ray Macy Stephanie Mantell Stephanie Dawn McConnell Jacob Andrew McElroy Jennifer Montgomery David Garrett Morgan Zachary W. Morrison Zachary Scott Morton Nicole L. Murray Thomas Reid Murry Khuong Ba Nguyen Andrew Payne Norwood Conrad Thomas Odom Whitney Kay Ohlhausen Daniel Reece Owens Nicole Rae Paladino Cristy L. Park Mark Preston Pearson Waymon T. Peer Cody Pritchard Dequeshia Prude Lindsey Kay Ray
Kyle Singleton (3rd from left) and family
SaVannah Justine Reading Anna Nolan-Wheatley Regnier Matthew MacKinnon Reid James Robert Renner Brett Allen Roberts Elizabeth Gean Roberts Jacob Grant Russell Kari Elise Sawyer Deyonna De’Jurnae’ Scott Alex T. Shirley Kyle Logan Singleton Taylor Ison Smith Jordan L. Snoderly Reagan M. Stanford Taylor Andrew Stockemer Darrell David Studdard Clay Sullivan Lindsey Marie Sullivan Candace Leigh Taylor Trent David Thomas Amanda Jean Thomas Madison Lee Throneberry Harrison William Tome’ James Douglas Tomlin Larry Douglas Treat Jon P. Tribell Kristen Terre Webster James Ethan Weeks Robert Allen White Zachary D. Wilson Jr. Nicole Marie Winters Alex K. Wynn Samantha Vital
Larry Treat (center) and family
YLS REPORT
YLS Handbooks
Prepared By Arkansas Bar Association Young Lawyers Section
8th Edition Revised May 2017
Domestic Violence: A Practical Guide for Navigating the Legal System in Arkansas
Domestic Violence: A Practical Guide for Attorneys, judges And Court Clerks
NEW ADMITTEE SURVIVAL GUIDE
ETHICS AND SOCIAL MEDIA: A GUIDEBOOK FOR ARKANSAS ATTORNEYS
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and Life to Go:
A Legal Handbook for Young Arkansans
Prepared by Arkansas Bar Association Young Lawyers Section Revised Edition 2011
The YLS is an active and growing division of the Arkansas Bar Association, one that is committed to providing useful tools for its members and helping the community through outreach and public service. The YLS has published several handbooks that are available as free downloads to all ArkBar members at https://www.arkbar.com/ for-attorneys/publications. Most recently, an updated “Guide to Arkansas Statutes of Limitations” was released. The YLS recently published a pair of companion handbooks on domestic violence. Written for domestic violence survivors, “Domestic Violence: A Practical Guide For Navigating the Legal System in Arkansas,” is a self-help guide for survivors of domestic violence that explains a survivor’s legal rights and how to get help from the legal system. The handbook will guide people through the civil, domestic, and criminal elements of a domestic violence case. YLS printed 20,000 copies of this handbook and will distribute hundreds of copies of these printed handbooks to every circuit clerk and domestic violence shelter in the state. In conjunction with the survivors’ handbook, the committee also completed “Domestic Violence: A Practical Guide for Attorneys, Judges and Court Clerks.” This handbook is a guide for attorneys who represent or work with survivors of domestic violence. It is divided into two sections: Domestic Violence in the Civil Context, and Domestic Violence in the Criminal Context, and is available on the Association’s website at http://www.arkbar.com/for-public/legalassistance/legal-pamphlets. The “New Admittee Survival Guide” is a resource for new attorneys to help with the transition from law school to law practice. “Ethics and Social Media: A Guidebook for Arkansas Attorneys” is intended to give lawyers insight into the world of social media and how its use—for both personal and business purposes—intersects and interplays with the Arkansas Rules of Professional Conduct. “18 and Life To Go: A Legal Handbook for Young Arkansans” is a handbook tailored to graduating high school seniors and has been used in community outreach programs statewide.
Self Care By Eric A. Marks Eric A. Marks is the Chair of the Young Lawyers Section. He is an attorney with White & Marks PLLC in Arkadelphia. Ninety degrees one day, a brisk 72 the next, fall(ish) is definitely upon Arkansas. I always enjoy this season; with it comes football, holidays, outdoor activities and hunting. As work and personal schedules become more and more hectic during this season, it is important to make sure you practice self-care. Self-care can be difficult, especially between the demands of office and all this season has to offer, but even the most basic things like drinking plenty of water, sleeping well, and making sure that tiny cut on your elbow has antiseptic and a band aid matter. The basis for my extremely specific final example of self-care is rooted in the fact that I got to spend two wonderful days in a New York City Hospital, courtesy of my lack of self-care and ignoring a tiny cut on my elbow until it eventually became an infection that temporarily derailed my otherwise wonderful ABA annual conference. I am excited to report I survived my minor setback and that YLS was well represented in New
York City during the ABA annual meeting and conference. Annual meeting is always a fun and eventful time for all YLS delegations and a time for each state to lend a voice in shaping the upcoming year’s ABA policy and ideals. Recently, delegates from our Arkansas YLS attended the ABA fall conference in Denver and our state was once again well represented. As of this writing, YLS is planning its executive counsel retreat in Hot Springs, Arkansas, where it will discuss activities on the horizon and for this spring. One of those activities approaching is the Mid-Year Meeting in Little Rock February 7-9, 2018. YLS will be heavily involved in providing CLE at this event and hosting a hospitality suite once again for all those YLS members who attend. In close, I encourage all of you to plan to attend one of our Wills for Heros events and certainly plan to attend the Mid-Year meeting for great CLE and great networking with your fellow Arkansas lawyers!
Greg Northen, Eric Marks and Sara Jewell representing ArkBar YLS at the ABA Annual Meeting in New York City.
Vol. 52 No. 4/Fall 2017 The Arkansas Lawyer
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January 31, 2018 Initial Deadline for submission of legislation to the Jurisprudence & Law Reform Committee for consideration for the ArkBar Legislative Package for the 2019 Legislative Session.
The voice of the Arkansas lawyer
For more information or to submit proposals, contact Karen Hutchins at the Arkansas Bar Association’s office at (501) 801-5663.
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Report from the August 2017 Board of Governors Meeting By Karen K. Hutchins The Association’s Board of Governors met August 25-26 at the Pine Bluff Country Club. Board Chair Paul Keith presided over the meeting. President Tony Hilliard welcomed the Board to Jefferson County. The Jefferson County Bar hosted a reception for the Board following Friday’s meeting. As a part of educating the Board on emerging trends in the law, President Hilliard introduced two attorneys from Jefferson County as guest speakers: Dr. Carla Martin from Go Forward Pine Bluff (GFPB) and Judge Robert Wyatt, from the Jefferson County Bar Association. Dr. Martin provided an engaging presentation on how GFPB is creating a public/private partnership that engages all residents in re-imagining the city. She challenged attorneys to embrace the importance of the role attorneys can play in their communities to improve the quality of life. Judge Wyatt presented an overview on current challenges of practicing law in rural Southeast Arkansas. President Hilliard explained his efforts to create a Medical Insurance Task Force to review the possibility of medical insurance options for the Association. He requested the board ratify his appointment of the task force. The motion passed. Executive Director Karen K. Hutchins reported receiving notice of loss of service from our print-on-demand provider for the association’s handbook publications. The handbooks will be sold in electronic format until a new print provider is selected. The Board also approved the hiring of two staff members and training costs for new staff. Executive Director Hutchins reported on the 2017/2018 membership numbers and recruitment plans. The board reviewed requests from association sections for the expenditures of section reserves for section activities. The board approved all but one request which was tabled until more information can be presented to the board. Treasurer Kolb made the report of the Finance Committee which recommended
that five designated reserve funds of the association be re-characterized as “undesignated reserves.” The motion to characterize these funds as undesignated reserves was approved by the Board. The Board also voted to recommend to the House of Delegates that they delete the Officer Expense and Capital Expenditure policies resulting in the deletion of the designation of these funds. Treasurer Kolb also discussed the issue of funding depreciation and will make a recommendation at the December 2017 meeting. Associate Director Trogden made the report of the Personnel Committee. The Board approved amendments to the association’s Personnel Handbook and also voted to recommend that the House of Delegates approve a proposed Social Media Policy supported by the Personnel Committee. Continuing Legal Education Committee Chair Casey Rockwell presented the report of the committee explaining the efforts of the committee to provide more options for in-person and live webinar CLEs throughout the upcoming year. Governor Estes made the report of the ArkBar PAC. The PAC proposed changes to its by-laws. After an extensive discussion the board voted only to amend the bylaws to update the Principal Office and Address. The next meeting of the Board of Governors will be held December 1-2 in Little Rock at the Arkansas Bar Center. On February 7–9, 2018, the Association will host its Mid-Year Meeting and House of Delegates meeting in Little Rock at the Marriott Downtown.
Karen K. Hutchins, J.D., CAE, is the Executive Director of the Arkansas Bar Association.
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Vol. 52 No. 4/Fall 2017 The Arkansas Lawyer
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Arkansas Supreme Court Appeals on Wheels Program
Q & A with J. Nicholas Shumate, Public Education Coordinator, Administrative Office of the Courts The Appeals on Wheels program looks like a great outreach program to teach students about the justice system. Is it modeled after other states or is Arkansas unique with this program? Appeals on Wheels has been very successful in Arkansas, and the Court has received excellent feedback from educators, students, and the public at large. Arkansas’ program was launched in 2002, shortly after Amendment 80 to the Arkansas Constitution allowed the Court to hold its formal duties outside of Little Rock, under then-Chief Justice William H. “Dub” Arnold. The program is not modeled on any other state’s system, but neither is it a unique program. At least a few other state supreme courts hosted oral arguments for educational purposes at high schools, college campuses, and law schools prior to Arkansas. However, because the substance of the program is not dramatized (these are real oral arguments and proceedings), the substantive portions are relatively straightforward and need no special treatment or additional programming. From the website photos, it looks like the justices are very engaged with the students—visiting classrooms and letting students try on their robes for photos. Is this an event that they all look forward to? The justices are extremely pleased that the community and students have been so interested in the program. All of the justices want to promote the value of a good civic life, and they recognize that there are only a limited number of opportunities to do this kind of outreach. Appeals on Wheels is the biggest, most public facet of the Court’s efforts in this regard, and 12
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the justices genuinely enjoy engaging with the students and answering their questions. What are some of the questions that you hear from the students after the proceedings? Every Appeals on Wheels is different, but the justices always receive excellent questions, many of which demonstrate that the students listened carefully to the oral arguments. For example, this fall’s Appeals on Wheels case was Laron Edward Williams v. State of Arkansas, which featured prominent issues of accomplice liability and evidence. The justices received questions such as: What is accomplice liability? What is the difference between direct and circumstantial evidence? The justices also receive interesting questions such as: Do you believe there are unbiased jurors? Do you ever rule in a way that conflicts with your moral compass? Or, do the qualities of the presentations of counsel during the oral arguments ever influence your decision? Students also regularly ask about how to get into law as a career or even, for some of the more ambitious students, how to become a Supreme Court justice! What are some of the thoughts that the justices have about the success of the program? The justices have been pleased with the program, and it remains the longest running of the Court’s public outreach efforts. One justice recently noted that programs like Appeals on Wheels are not only a good thing to do, but they are part of every judges’ responsibilities to their community. As the comments to Rule 3.1 of the Arkansas Judicial Code of Conduct reminds, judges are encouraged to
Top row l to r: Justice Josephine L. Hart, Justice Shawn A. Womack and Justice Karen R. Baker. Bottom row l to r: Chief Justice Dan Kemp, Justice Rhonda K. Wood, Justice Courtney Hudson Goodson and Justice Robin F. Wynne. Photos courtesy of the Arkansas Supreme Court.
engage in these sorts of activities due to their unique qualifications. Appropriate extra-judicial activities help to build confidence and understanding of our justice system. It looks like the program has been all over the state. How does the Court decide which schools or locations to visit? How about which cases to hear? Locations are usually suggested by alternating members of the Court and—if there are no substantial objections—that member will spearhead the effort to organize that Appeals on Wheels program. Generally, the Court also tries to avoid setting programs back-to-back in the same area and is mindful of any logistical challenges that a location might bring. As a result, Appeals on Wheels has been brought to almost every region of the state both urban and rural. If a community is interested in hosting a future Appeals on Wheels program, they can feel free to reach out to me at nick. shumate@arcourts.gov. How many students do you estimate that you have reached? This is a difficult number to estimate, as every Appeals on Wheels varies greatly in size due to the Court’s commitment to bringing the program both to small communities and larger ones. Some Appeals on Wheels have been less than a hundred students while others have been over a thousand. It would be safe to
say that Appeals on Wheels has reached thousands of students and other guests across the state over the last 15 years. Is the public invited to attend or just students? Yes, the public is always invited, though the program is primarily marketed toward the schools we hope will participate. The public is also welcome to attend the Court’s more routine oral arguments in Little Rock. At every Appeals on Wheels we reserve a certain amount of seating for walk-ins from the community. We do encourage attendees to RSVP, if possible, as seating in the past has sometimes been quite limited. There is typically also a sizeable contingent of local officials, friends and family of the Court, and other members of the public. At the most recent Appeals on Wheels in Fayetteville, for example, around 35 members of the Fayetteville Chamber of Commerce Leadership Class attended. This looks like the justices are setting a good example of helping to educate citizens about the justice system. Is there anything else that you would like the members of the Bar to know about the program? We hope that the Bar takes to heart the message that it is difficult to expect someone, especially a young person, to respect the civic values that underpin the rule of law if they never see those values translate into action or
hear from leaders in their community about their importance. The members of the Arkansas Bar are in a unique and privileged position within their communities, both as attorneys and role models, to help address lingering doubts and misconceptions about the justice system. Appeals on Wheels is a useful but limited tool in our mutual fight to promote education. It is far more effective and farreaching if we can count on local members to talk about these issues and defend these values among their friends, families, and communities. To that end, the Court recently announced the revival of the Arkansas Courts and Community Initiative (“ACCI”). ACCI was a highly successful program that recruited local community leaders from across the state to give presentations on civic engagement and to explain the role of the legal system in peoples’ lives. These individuals were collected into a “Speakers Bureau” that represented a huge swath of Arkansas communities. We invite the members of the Bar to participate in the coming year in ACCI as partners in our efforts to promote confidence in our justice system. The Administrative Office of the Courts has already created a base presentation for speakers, and those interested in being a part of the Speakers Bureau need only contact acci@arcourts.gov or call Nick Shumate at (501) 4101935 for more information or to volunteer.
Vol. 52 No. 4/Fall 2017 The Arkansas Lawyer
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Lawyer The Arkansas
By Anna Hubbard and Cathy Underwood This year marks the 50th anniversary of The Arkansas Lawyer Magazine. To celebrate, we have compiled highlights from the past 50 years. Our hope for our seasoned members: that you enjoy this trip down memory lane. For newer members: that this gives you a sense of the full history and development of the bar. From its inception the magazine has relied upon volunteer attorneys for its success. The magazine has an Editorial Advisory Board of 12 members who plan the issues and work with volunteer attorneys to write the articles. The first Editorial Committee consisted of James W. Moore, Philip E. Dixon and LeRoy B. Gaston. The first editor, who also served as Executive Director, was Colonel C. E. Ransick. The longest tenured board members still actively serving on the board are: Jim Julian, Philip Kaplan, Drake Mann, Gordon Rather and David H. Williams. Anton L. Janik is currently serving his second year as the chair.
The first issue in June 1967 included congratulatory letters from both Governor Winthrop Rockefeller and Association President Maurice Cathey:
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1960s and 1970s
September 1967
March 1973
March 1968
September 1969
January 1974
The second issue in September 1967 included a Membership Directory; this tradition continued until April 1984, when the Membership Directory became its own stand-alone publication. The Membership Directory is currently available to all ArkBar members online, in a searchable format. Throughout the years, The Arkansas Lawyer has touted membership benefits. The outside back cover of the March 1968 issue featured one of our first member benefits ad: “You Should Belong to the Arkansas Bar Association. You will receive every issue of The Arkansas Lawyer which will bring you interesting information articles about law, lawyers, court decisions, legal literature, meeting schedules, and news of developments of value in your practice.” Wow, how technology has changed through the years; see our current membership benefits ad on page 44 of this issue. The Justice Building of the State of Arkansas was featured on the cover of the September 1969 issue. This issue included the Petition and Brief for the Reorganization of the Arkansas Bar to a Unified Bar (an obviously unsuccessful endeavor; the Association remains to this day a voluntary bar association).
January 1971
July 1971
July 1976
January 1979
January 1976
The January 1971 issue was dedicated to Edward L. Wright of Little Rock who served as the American Bar Association President from 1970-1971. He was the second of three Arkansas Bar Association members who served as ABA president. U.M. Rose served in 1901-1902 and Phil Anderson served in 1998-1999. In honor of the 150th anniversary of Little Rock as the Capital City, the cover story for the July 1971 issue was “The Arkansas Capitol” by Dr. John L. Ferguson. The State Capitol has been featured on the cover in multiple other issues as well, most recently Spring 2017. The March 1973 issue was dedicated to the Oil and Gas Industries of Arkansas, and was largely prepared by members of the Oil and Gas Institute. 2018 will mark the 57th year for the Natural Resources Institute. The Natural Resource Section of the Association was originally the Oil and Gas Section. A tribute to the new Arkansas Bar Center and a history of the Arkansas Bar Foundation was the focus of the January 1974 issue. “May [the new Arkansas Bar Center] ever serve to improve legal education, the legal profes-
sion, the administration of justice.”—James E. West, Association President 1973-1974. This beautiful building served the Arkansas Bar Association well until it moved into its new home on Cottondale Lane in 2007. (See Spring 2007 cover on page 18) Elsijane Trimble Roy, the first woman to serve as a justice on the Arkansas Supreme Court, was featured in the January 1976 cover story. Judge Roy was a woman of firsts; the year after this article was published, she became the first female judge for the U.S. District Courts of Arkansas, serving in her father’s old courtroom. Prior to that, she had served as the first female judge on the Arkansas Court of Appeals. She was also an avid Razorback fan, well known for stopping to call the hogs wherever she went. The July 1976 cover story featured the new Arkansas Supreme Courtroom at the Justice Building in Little Rock, which was dedicated on January 9, 1976. The January 1979 cover story featured a dedication to the renovation of the Old Federal Building in Little Rock. For years this housed the law school and currently is the U.S. Bankruptcy Courthouse.
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1980s
January 1981
January 1982
April 1984
October 1985
April 1988
April 1988
The cover art for the January 1981 issue is the book cover of “On the Courthouse Square” by John and Marjem Gill which documents 107 Arkansas courthouses and was published in 1980. John was president of the Arkansas Bar Association in 19921993. The January 1982 issue includes an article by Bernard Sternin on “Word Processing: Its Myths and Mythconceptions.” “Trying to picture and prepare for the office of the future is serious business for those of us who will have to live there.” “Arkansas’ County Courthouses in the Mainstream of Preservation Efforts” by Jacalyn Carfagno was the cover story featured in the April 1984 issue. This issue also featured a new look for the masthead. The October 1984 issue featured a series of articles on “100 Years of History: Arkansas Women in Law” by Frances Mitchell Ross, Ruth Brunson, Jacqueline Wright and Ruth Lindsey. Ross’ article utilizes the case of Bradwell v. Illinois to showcase the plight of pioneering Arkansas women lawyers, who were precluded by statute from entering the Arkansas Bar until 1917. 16
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“On June 6, 1985, W. Harold Flowers was honored as a fifty-year member of the Arkansas Bar Association at the annual meeting of the association in Hot Springs. Harold Flowers, often referred to as the Dean of the black bar in Arkansas, has been admitted to the practice of law in Arkansas longer than any other black attorney in the state.” This is from the July 1985 issue, by Andree Roaf. The October 1985 cover story featured a new look for the masthead. The cover story was “Filling the Chair: What Judicial Selection Method Works Best?” by Ann Henry and Elizabeth Cocker. This issue also included an article by W. Russell Meeks, III on “Mandatory CLE in Arkansas: On the Cutting Edge” (mandatory CLE was implemented three years later). Automating the Law Office by Charles A. Morgan was the cover story featured in the April 1988 issue. “In the law office of the future, today’s technology must be mastered if we are to be efficient, profitable.” Fastfoward to 1990, and the Arkansas Bar Association became one of the first bars to offer forms in electronic format, with its flagship handbook, The Arkansas Formbook, on computer diskette. [5 1/4 inch floppies!
October1984
July 1985
April 1989
October 1989
This later changed to 3.5” disks, and then later to CDs, then jump drives.] In 2014, the bar converted to ArkBar Docs, taking its computer processing efforts to the next level. The April 1988 issue included an announcement about the first Joint Annual Meeting of the Arkansas Bar Association and the Arkansas Judicial Council. “A Partnership Spirit...Among Lawyers and with the Bench.” Since this was also the first year that Arkansas lawyers were required to have mandatory CLE, the registration for this annual meeting was just about double that of previous meetings! The April 1989 cover story featured an article on “Campaign Finance in Judicial Elections” by James D. Gingerich. This theme has continued over time, with the latest article published in the Winter 2015 issue with an article by Tim Cullen: “Judicial Campaign Finance: Can the Independence, Integrity and Impartiality of the Judiciary Survive Unlimited Stealth PAC Expenditures in Judicial Elections?” The masthead takes on a new look with the cover of the October 1989 issue.
1990s
October 1991
January 1992
Winter 1993
Winter 1994
Summer 1995
Spring 1996
Winter 1998
Fall 1998
The October 1991 cover story featured a series of articles on “Celebrating the Bicentennial of the Bill of Rights” by Wiley A. Branton, Jr., John Wesley Hall, Philip E. Kaplan, Nancy Bellhouse May and Wm. R. Wilson, Jr.
with this issue of the magazine, the issues were named according to season versus the month.
The Arkansas Lawyer cover for the January 1992 issue featured the 25th Anniversary of the magazine. In honor of the anniversary of the magazine, a Maurice Cathey award was established “to recognize his great foresight and to express appreciation for his outstanding contribution.” Cathey was posthumously named the first recipient of the award. This issue also included the results of a women-inthe-law survey. “These, and a host of other results, call for all of us to find ways to reduce the gender gap in the legal profession.” The April 1992 issue (not pictured) included the results of a minorities-in-the-law survey. “The figures in the survey confirm our gut feelings that we have a long way to go in making the legal profession fully open and rewarding to minority lawyers.”
The Summer 1995 cover story featured Carolyn Witherspoon, the first female Arkansas Bar Association president. Since Carolyn’s term, other female presidents have included: Sandra Cherry (2001-2002), Rosalind Mouser (20082009), Donna Pettus (2009-2010), Denise Hoggard (2016-2017). This issue also included an article by Jacqueline Wright on “The Internet—Resource for Arkansas Lawyers.” “The most important thing about the Internet, at least to those of us who enjoy thinking about possibilities, is that it creates new opportunities for solving problems that concern larger issues.” Who could have imagined, back then, how the internet would change our daily lives, including the practice of law?
The Winter 1993 cover story featured “The Clintons Go To Washington” by David R. Matthews, after Association member Bill Clinton was elected the 42nd president of the United States on November 3, 1992. Beginning
The masthead takes on a new look with the cover of the Winter 1994 issue.
The masthead takes on a new look with the cover of the Spring 1996 issue. In this issue, Claudia Driver announced that the Bar Association “has established a homepage on the World Wide Web.” The Winter 1998 cover story featured U.M.
Summer 1995
1998 Centennial Issue
Rose, the first president of the Arkansas Bar Association in 1898-1899 and president of the American Bar Association in 1901-1902. The statue of Rose pictured on the cover stands in the rotunda of the United States Capitol. This issue also included an article by Todd Greer on the Y2K Crisis, “January 1, 2000: Just Another Day in the Office?” Association member Philip S. Anderson served as the American Bar Association president from 1998-1999 and was featured on the Fall 1998 cover. In 1998, a special centennial issue was added that year in honor of the centennial year of the Arkansas Bar Association. John P. Gill and Christopher L. Travis were special guest editors; Cathy Underwood served as editor. “For almost a third of this century The Arkansas Lawyer has published hundreds of excellent articles on the law and the legal profession. They have been serious and witty, and typically Arkansas lawyer.” This issue also covered the Barrister’s Ball, a formal gala held in honor of the bar’s Centennial, and included a “snapshot in time”: all current members of the Arkansas Bar were listed in the margins of the pages, including law school members.
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2000s
Spring 2000
Spring 2002
Spring 2004
Spring 2007
The Arkansas
Lawyer A publication of the Arkansas Bar Association
Lawyer The Arkansas
Vol. 50, No. 3, Summer 2015 online at www.arkbar.com
A publication of the Arkansas Bar Association
Winter 2014
The Spring 2000 issue featured a new look for the masthead. The Spring 2002 issue featured a new look for the masthead that remains in today’s publication. The Spring 2004 cover story featured the new Arkansas Versuslaw, the Association’s first online legal research tool for members. Pictured on the cover is the late Winslow Drummond, “widely known for favoring traditional means of practicing law, checking out the ultimate member benefit.” The issue included an article by Tom Daily, “Let’s do some Arkansas VersusLaw? (new tricks for us older dogs).” The Association has continued to provide an online legal research tool as a free member benefit since that date, switching to Fastcase in 2010. After 30 plus years, the Arkansas Bar Association decided to move to a new Arkansas Bar Center, pictured on the cover of the Spring 2007 issue. “Judith Ryan Gray loved lawyers and dedicated virtually all of her professional life to promoting the legal profession. She served the Arkansas Bar Association for forty years—of18
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Summer 2015
ficially as our Associate Executive Director, but in fact, as our anchor, program planner, promoter, recruiter, and ambassador extraordinaire.” No one could have stated this more aptly than Judge Beth Deere and Judge David M. “Mac” Glover in the Fall 2009 cover story, a tribute to the late Judith Gray. The Fall 2013 issue was dedicated to veterans law issues with a special feature recognizing members who have served. “To our active and former military personnel: How can we ever thank you adequately for your service? Words fail. You are our heroes. Thank you for the ways that you guard and protect us.” “Diversity in the Legal Profession—A Time of Challenge,” was the featured article in the Winter 2014 issue, based on a transcript from a panel discussion. Panelists included Cory Childs, Milton DeJesus, Harold Evans, Denise Hoggard, Phil Kaplan, Marie-Bernarde Miller, Lawrence Orta, Emily Runyon and Angela Schnuerle. “Diversity is something that we have to want. We have to choose it and then we have to be proactive about achieving it. So if diversity is a value in a law firm, then I think that we have to actually set about achieving it.” A similar panel discussion on Women in the Law is included in this issue.
Vol. 51, No. 2, Spring 2016 online at www.arkbar.com
Inside: Mock Trial Competition Independent Contractor Status New Venue Statutes Professional Licensing
2015-2016 Arkansas Bar Association President Eddie H. Walker, Jr.
Fall 2013
Fall 2009
Winter 2016
Spring 2016
Eddie H. Walker, Jr., was the Association’s 118th president and had the distinction of serving as the first black president of the Arkansas Bar Association. His inspiring story is the cover story for the Summer 2015 issue. The Winter 2016 issue featured an accolade to Colonel William A. Martin (pictured with his wife Mary Lou), former executive director of the Arkansas Bar Association and Arkansas Bar Foundation and longtime Secretary-Treasurer of the Association. Martin received an award of Excellence from the National Conference of Bar Foundations in recognition of outstanding contributions to law-related philanthropy by an individual. The Arkansas High School Mock Trial Competition has been a tremendous outreach program of the Arkansas Bar. This is the feature of the Spring 2016 cover story, with an article by Anthony McMullen. “Volunteering [in the mock trial competition] allows attorneys the chance to help provide civics education to the next generation of Arkansas citizens. They may even influence an aspiring lawyer.” See page 7 for details on how you can volunteer to continue this tradition.
Sign up. Ship. Save. Arkansas Bar members save big on select FedEx® services ArkBar members now have access to special members-only savings on their shipping and business needs. Enroll in the FedEx Advantage® program and start saving today. Up to 26%* off FedEx Express® U.S. services Get important documents delivered sooner, be more competitive, and save money. ArkBar members save up to 26% off FedEx Express U.S. services.
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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.
Vol. 52 No. 4/Fall 2017 The Arkansas Lawyer
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A Short Recent History of the Death Penalty in Arkansas By Jeff Rosenzweig
I
Jeff Rosenzweig has practiced criminal defense, including death penalty defense, for the past 40 years. He was involved in a number of the cases discussed in this article.
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n late February 2017, Governor Asa Hutchinson set execution dates in April for eight Arkansas prisoners who had been sentenced to death and who had exhausted their appeals. For the next two months numerous group and individual challenges were filed in both state and federal court. The scheduling of executions of eight persons in an 11-day period attracted worldwide attention, much of it critical. The reason given for the concentrated scheduling was the impending expiration of one of the three drugs in the execution “cocktail.” When April ended, four of the eight—Jack Jones, Ledell Lee, Kenneth Williams and Marcel Williams—had been executed. The four others—Don Davis, Stacey Johnson, Jason McGehee and Bruce Ward—were stayed by the courts for various reasons.1 The executions of the four made the total number of executions in Arkansas since 1990 to be 31.2 This episode was the latest turn in the complicated and often controversial recent history of the death penalty in Arkansas. This article briefly explores some of that history.
(L to R) Carl Collins, the first person sentenced to death in Arkansas after the 1972 Furman decision; his sentence was later vacated and he remains at ADC. Jack Jones, executed in 2017, the lead plaintiff in the successful challenge to the 2009 lethal injection law. Rickey Ray Rector, the brain damaged prisoner executed during the 1992 presidential campaign. Robert Robbins, whose case established the mandatory appeal process; his sentence was vacated and he remains at ADC. Charles Singleton, executed in 2004 after 24 years on death row; his case involved issues of being medicated into sanity. Photos courtesy of the Arkansas Department of Correction.
The death penalty in Arkansas in the 1960s, 1970s and 1980s. During the 1960s the use of the death penalty declined nationally. Arkansas executed Charles Fields for rape in 1964 but would not execute another person for over a quarter century. An informal national moratorium on the death penalty had coalesced by 1967 as various challenges wended through the courts. One of those was the case of William Maxwell, an African-American sentenced to death in Garland County for rape. It was thought that Maxwell v. Bishop3 would be the landmark national case on constitutionality of the death penalty. Indeed, the Supreme Court granted certiorari in Maxwell to decide the structural issues of the application of the death penalty: (i) Could it be imposed in a unitary proceeding and (ii) Was it proper to give the jury no standards or directions in deciding whether to impose it. However, the Supreme Court took a pass on those issues, opting for a brief per curiam decision applying in Maxwell’s favor the recently decided Witherspoon v. Illinois4 placing some limits on the excusals of capital jurors for “scruples” against the death penalty. As it turns out, Maxwell’s sentence would have been mooted anyway. In December 1970, shortly before leaving office, Governor Winthrop Rockefeller commuted the death sentences of all 15 prisoners then on Arkansas’ death row. In the next year and a half, Arkansas juries sentenced several more persons to death including one who received nationwide attention, Joe Kagebein, who was 15 years old at the time of the homicide. But in June 1972, in Furman v. Georgia,5 the Supreme Court invalidated all death sentences on the very
grounds for which it had granted certiorari in Maxwell. The 1973 General Assembly then enacted a death penalty statute creating the offense of “Capital Felony Murder,” establishing a separate penalty proceeding and setting forth aggravating and mitigating circumstances for the jury to consider. In 1976, in a set of cases decided under the title Gregg v. Georgia,6 the Supreme Court upheld that basic structure of the death penalty. The 1975 enactment of the Criminal Code renamed the offense “Capital Murder,” although the former name persisted in judicial opinions for years. In the late 1970s and throughout the 1980s Arkansas juries sentenced several dozen persons to death. However, no executions occurred in Arkansas during that time. In addition to various case-specific reasons for reversal in both state and federal court, the death sentence of Carl Collins was set aside by the Eighth Circuit for “double counting.” The principle behind Collins7 was that the aggravating circumstance of “pecuniary gain” did not perform the narrowing function required by the Furman and Gregg decisions. Collins himself was removed from death row and several other persons, including Paul Ruiz and Earl Van Denton, obtained new sentencing hearings. Eventually Collins was held superseded by the Supreme Court in Lowenfield v. Phelps,8 despite numerous attempts to distinguish the Louisiana procedure under scrutiny in that case from the Arkansas system. The Supreme Court assayed the Collins issue one last time in another Arkansas case, Lockhart v. Fretwell.9 Fretwell held that the failure to have made the Collins objection, at a time when Collins was still good law, was not ineffective assistance of counsel because
Collins was subsequently overruled. Another case from Arkansas ended up deciding—adversely to the defendant—the issue of whether a death-qualified jury, i.e. a jury with venirepersons excluded from a capital jury because they could not consider imposing the death penalty, was more likely to convict, in violation of the Sixth Amendment guarantee of an impartial jury. In Lockhart v. McCree,10 the Supreme Court overruled the Eighth Circuit and rejected the two-jury solution proposed by McCree, who incidentally had not been sentenced to death. The Issue of Waiver of Appeals One of the most noted cases of that time was that of Ronald Gene Simmons. Simmons killed 14 members of his own family around Christmas of 1987. He later proceeded to downtown Russellville where he killed two more persons and wounded three others. From almost the beginning Simmons expressed a desire to be put to death. After being sentenced to death 16 times over the two cases he sought to waive his right to appeal. A Catholic priest, Father Louis Franz of Star City, sought to appeal as Simmons’ next friend. In Franz v. State,11 the state Supreme Court held that Franz did not have standing to appeal on Simmons’ behalf and that Arkansas had no mandatory review of death sentences. The state court adhered to that position in the case of Jonas Whitmore, another death-sentenced inmate who attempted to intervene in Simmons’ case under the theory that Simmons should be required to appeal so that Whitmore’s case could be compared favorably to Simmons’ under the doctrine of comparative review. This argument—also
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put forth in Whitmore’s Rule 37 petition— so irritated the state Supreme Court that in denying Whitmore’s petition it also decided to abolish Rule 37.12 [A year and a half later the court reinstated Rule 37.] Whitmore then took his argument to the United States Supreme Court, which granted his petition for writ of certiorari and stayed Simmons’ execution. But in Whitmore v. Arkansas,13 the high court held that Whitmore did not have standing to appeal Simmons’ sentence. The two dissenters, Justices Brennan and Marshall, called for mandatory review. The Franz precedent was repudiated a decade later. Robert Robbins, who at age 18 had killed his girlfriend, was permitted by the state courts to represent himself at trial and to waive his appeals.14 But shortly before the execution, Robbins’ mother Bobbye Jean Robbins sought to intervene as a next friend. The state Supreme Court stayed the execution and eventually overruled Franz.15 The Court later promulgated Rule 10, ARAP— Criminal, codifying the Robbins holding. Arkansas Begins to Execute By 1990, some of the Arkansas death-sentenced prisoners began to run out of appeals. The first post-Furman execution in Arkansas was that of John Swindler. Although in 1983 the General Assembly had provided for lethal injection, the law also allowed those sentenced before 1983 to choose between injection and electrocution. Swindler declined to choose and was thus deemed to have chosen electrocution. Another prisoner was also executed in 1990. In January 1992 came the execution of Rickey Ray Rector. He had suffered a self-inflicted gunshot wound to the brain in a suicide attempt. Nonetheless, the circuit judge found him competent to proceed to trial despite significant testimony to the contrary. The appellate and habeas courts all deferred to that holding despite attempts to demonstrate that he did not understand what death was. The Rector case became entangled in presidential politics when then-Governor Clinton, campaigning in New Hampshire in the midst of the Gennifer Flowers controversy, flew home to preside over the execution. It turned out that Rector had saved the pecan pie from his last meal to eat later—after the execution. The Rector execution is now also understood to have been a “botched execution,”16 since it took some 45 minutes for the executioners to find a usable vein and 22
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then another 30 minutes after the drugs began flowing for him to die. As one might expect, mental health issues have been prominent in a number of cases. Although Rector was not suffering from mental retardation as that term was defined,17 the 1993 legislature prohibited execution of prisoners with that condition.18 A decade later the Supreme Court followed suit.19 Several deathsentenced prisoners have been removed from the state’s death row as a result, and others have litigated or are litigating it.
“Arkansas courts, both state and federal, are likely to be grappling with death penalty issues for years to come. This will include further challenges to lethal injection.”
The issue of extending Atkins to other forms of mental illness is a matter of great contention nationwide. The Supreme Court standard is that a person may not be executed if he does not understand that he is to die and the reason for his death.20 Rector was unsuccessful in his challenge, although if the factfinder had known about him saving his pie, the result may have been different. The issue took an unusual turn in the long-running case of Charles Singleton. He had become psychotic on death row, which he had entered in 1979. The prison authorities forcibly medicated him into apparent sanity, which raised the question of whether a state could involuntarily medicate someone into a position in which he could be executed. This involved substantial legal and ethical questions. Singleton was executed in 2004 after the courts found that the purpose of the medication in his case was for treatment and not to cause his execution. Moreover, Singleton, once medicated, decided to continue taking it.21 The Lethal Injection Controversy Despite events such as the Rector execution, challenges to the efficacy of lethal injection did not begin immediately, largely because the alternative was electrocution. In the early 2000s, however, led by attorneys in
Kentucky, lawyers around the country began to challenge the three-drug system employed in most death states, including Arkansas. The essence of the challenge was that the first drug would not reliably induce unconsciousness and the second and third drugs would thus cause torturous pain in violation of the Eighth Amendment. The publicity around these challenges caused many pharmaceutical manufacturers to cease providing execution drugs. Arkansas took to obtaining some of its inventory from Dream Pharma, a company operating from the back of the Elgone Driving Academy in a suburb of London, England.22 Eventually, federal authorities seized the Arkansas stockpile as having been illegally imported. One of the Arkansas challenges was that the Arkansas execution protocol had not been properly promulgated under state administrative law. A circuit judge agreed. Executions were stayed and would not resume until 2017. The state short-circuited that appeal by convincing the General Assembly to enact Act 1296 of 2009, the “Methods of Execution Act,” removing the death protocol from the scope of the Administrative Procedures Act and allowing the director of the Department of Correction to use any substance he wanted to cause death.23 In Baze v. Rees,24 the U.S. Supreme Court had turned back the Kentucky challenge. Unlike most other states which had tightened laws to comply with Baze, Act 1296 sent Arkansas in the other direction. Three years later, in Hobbs v. Jones,25 the state Supreme Court struck down Act 1296 as a violation of the state constitutional requirement of separation of powers by giving improperly unfettered discretion to the prison director. In response, the legislature enacted Act 139 of 2013. This law called for benzodiazepine followed by a lethal dose of a barbiturate and set forth requirements to the director for various “logistical procedures.” Act 139 engendered another challenge, both facially and as-applied. The facial challenge was rejected by the state Supreme Court in Hobbs v. McGehee.26 But because Arkansas had not been able to obtain the execution drugs, the parties agreed to defer the as-applied challenge until drugs were obtained. In the partial settlement agreement, the Department of Correction, represented by the Attorney General, promised to inform the prisoners’ attorneys within 10 days of the
receipt of the drugs and to provide packing slips and other information regarding their provenance. That agreement turned out to be illusory because of legislative action. Act 1096 of 2015 rendered confidential the information which the state had obligated itself to provide in the 2013 settlement agreement. This provision negating the 2013 agreement bred a contract clause claim in the later litigation. Act 1096 set forth a new drug regime “depending on the availability of the drugs: A barbiturate; or midazolam, followed by vecuronium bromide, followed by potassium chloride.” The midazolam provision was particularly controversial. That drug had been used in the “botched execution” of Clayton Lockett in Oklahoma. Various medical professionals believed that because of midazolam’s chemical makeup it would not render the prisoner unconscious and insensate to pain. The drug was at the center of the U.S. Supreme Court’s decision in Glossip v. Gross27 in which the high court ruled that the Oklahoma prisoner challenging the use of midazolam had not met the high preliminary injunction standard. Glossip also required the prisoners challenging a method of execution under the Eighth Amendment to establish that there was another method available. The Arkansas prisoners propounded several possibilities— commercially available gases, drugs and firing squad. In the 2016 decision clearing the way for the executions, Kelley v. Johnson,28 the state Supreme Court ruled against the prisoners. There were three dissents to various parts of the ruling. The court interpreted the agreement regarding the 2013 law as not applicable to the 2015 law. It adopted the Glossip position on midazolam and called the invocation of the prison system’s possession of firearms, bullets and personnel as an available alternative method “conclusory.” The court stayed its decision to permit a petition for writ of
certiorari, which was denied in early 2017. This cleared the way for Governor Hutchinson to set executions of the eight. Right To Counsel In the post-Furman regime there has also been a significant improvement in the structure of the defense in death penalty cases. In the 1970s and 1980s there were no standards for appointment of counsel in death cases. Lawyers with essentially no experience were often appointed. The author of this article was assigned a death case before he had ever tried a felony jury trial.29 Post-conviction proceedings were even worse. There was no right to appointed counsel at that stage at all. Arkansas cases were handled by a small group of five or six lawyers, all in their 20s and 30s at the time and all serving pro bono. Moreover, the relevant statutes put a cap of $350 (later raised to $1000) on attorney’s fees for trials and $100 for expenses. Challenges to that system were rebuffed by the state Supreme Court. Acceptance of a court appointment was redefined as “volunteering.”30 Paying money to an expert to get him on board was a contribution not entitled to reimbursement.31 Then in 1991 two Batesville lawyers, Blair Arnold and Tom Allen, appointed to a capital murder case involving an alleged arson, refused to proceed. The circuit judge held them in contempt. The lawyers appealed. In Arnold v. Kemp,32 the state Supreme Court struck down the caps. The budgetary consequences of Arnold caused Governor Jim Guy Tucker and the legislature to establish in 1993 the statewide Public Defender Commission, including an office devoted primarily to capital cases and requiring the establishment of standards. Around the same time, the federal court system was establishing a number of death penalty resource centers to assist attorneys appointed in the federal habeas corpus context. The state provided a modest contribution which allowed the center to provide
some assistance in state post-conviction proceedings. When the Republican party took control of Congress in 1995, the Congress killed all appropriations for the centers. However, that same Congress also passed the Antiterrorism and Effective Death Penalty Act (AEDPA), which set up an accelerated schedule for resolution of federal habeas corpus death penalty cases if the state were to provide for appointment and compensation of qualified counsel in state postconviction proceedings. AEDPA caused the legislature to pass Act 925 of 1997 creating a statutory right to counsel in post-conviction death cases. In response to that, the state Supreme Court promulgated A.R.Crim.P. Rule 37.5, which largely tracks the provisions of Act 925. Several years later, the federal defender system established a Capital Habeas Unit within the federal public defender office in Little Rock. The Future Several states have abolished the death penalty by legislation. Arkansas is unlikely to become one of them. Two members of the United States Supreme Court have set forth their opinion that it is unconstitutional under the Eighth Amendment despite being recognized in the Fifth and Fourteenth Amendments. However, court watchers do not currently see five votes for that proposition. Arkansas courts, both state and federal, are likely to be grappling with death penalty issues for years to come. This will include further challenges to lethal injection. Endnotes: 1. Davis and Ward were stayed because the U.S. Supreme Court was then deciding an issue which was also presented in their cases. Johnson was given a stay to pursue DNA testing which had been previously rejected. McGehee was stayed because the Parole Board had recommended clemency and the execution was scheduled to occur before the
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governor could legally act on the recommendation. As of the writing of this article, the Governor has announced his intention to grant clemency. 2. As of this writing, 30 prisoners are on Arkansas’ death row. Additionally, since 1973 approximately 56 persons have been sentenced to death in Arkansas whose sentences were eventually vacated or who died while awaiting execution. 3. Maxwell v. Bishop, 398 U.S. 262, 90 S. Ct. 157, 826 L. Ed. 2d 221 (1970). 4. Witherspoon v. Illinois, 391 U.S. 510, 88 S. Ct. 1770, 20 L. Ed. 2d 776 (1968). 5. Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 272, 633 L. Ed. 2d 346 (1972). 6. Gregg v. Georgia, 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976). 7. Collins v. Lockhart, 754 F.2d 258 (8th Cir. 1985). 8. Lowenfield v. Phelps, 484 U.S. 231, 108 S. Ct. 546, 98 L. Ed. 2d 568 (1988). 9. Lockhart v. Fretwell, 506 U.S. 364, 113 S. Ct. 838, 122 L. Ed. 2d 180 (1993). 10. Lockhart v. McCree, 476 U.S. 162, 106 S. Ct. 175, 890 L. Ed. 2d 137 (1986). 11. Franz v. State, 296 Ark. 181, 754 S.W.2d 839 (1988).
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12. Whitmore v. State, 299 Ark. 55, 771 S.W.2d 266 (1989). 13. Whitmore v. Arkansas, 495 U.S. 149, 110 S. Ct. 1717 (1990). 14. State v. Robbins, 335 Ark. 380, 985 S.W.2d 293 (1998), opinion after remand, 336 Ark. 377, 985 S.W.2d 296 (1999). 15. State v. Robbins, 337 Ark. 227, 987 S.W.2d 709 (1999), cert. gr., 339 Ark. 379, 5 S.W.3d 51 (1999). 16. A “botched execution” is the much-used terminology for an execution that does not cause the quick and painless death foreseen by the proponents of the method. The term has made its way into Supreme Court opinions; e.g., Baze v. Rees, 553 U.S. 35, 111 (2008) (Breyer, J, concurring). 17. The term “mental retardation” has been superseded in use by “intellectual disability,” but the former still appears in the Arkansas statute. 18. Act 420 of 1993, codified as Ark. Code Ann. § 5-4-618. 19. Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002). 20. Ford v. Wainwright, 477 U.S. 399, 106 S. Ct. 2595, 91 L. Ed. 2d 335 (1986). 21. Singleton v. Norris, 319 F.3d 1018 (8th
Cir. 2003), cert. den., 540 U.S. 832 (2003). 22. This is discussed in a somewhat sanitized form in Hobbs v. Jones, 2012 Ark. 293, 412 S.W.3d 844. An internet search using “Dream Pharma” and “lethal injection” will produce numerous references. 23. Arkansas Dep’t of Correction v. Williams, 2009 Ark. 523, 357 S.W.3d 867. 24. Baze v. Rees, 553 U.S. 35, 128 S. Ct. 1520, 170 L. Ed. 2d 420 (2008). 25. Hobbs v. Jones, 2012 Ark. 293, 412 S.W.3d 844. 26. Hobbs v. McGehee, 2015 Ark. 116, 458 S.W.3d 707. 27. Glossip v. Gross, —U.S.—, 135 S. Ct. 2726, 192 L. Ed. 2d 761 (2015). 28. Kelley v. Johnson, 2016 Ark. 268, 496 S.W.3d 346. 29. Fortunately, that case was resolved by a plea. 30. Pickens v. State, 301 Ark. 244, 783 S.W.2d 341 (1990). 31. Coulter v. State, 304 Ark. 527, 804 S.W.2d 348 (1991). 32. Arnold v. Kemp, 306 Ark. 294, 813 S.W.2d 770 (1991).
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Vol. 52 No. 4/Fall 2017 The Arkansas Lawyer
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Howell v. Howell: A Refresher on Dividing Military Retirement in a Divorce By Anthony L. McMullen
On May 15, 2017, the Supreme Court of the United States issued its opinion in Howell v. Howell,1 wherein it addressed the division of military benefits when a veteran elects to waive a share of retirement pay in order to collect disability benefits. While the Court’s response to the issue is consistent with previous case law, it does give attorneys an opportunity to review the law when it comes to dividing military benefits in a divorce.
T
Anthony L. McMullen is an Assistant Professor of Business Law at the University of Central Arkansas.
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he facts in Howell are simple. An Air Force airman and his wife divorced in 1991. The trial court treated the airman’s future retirement pay as community property. The following year, the airman retired and started receiving retirement pay, half of which went to his ex-spouse pursuant to the decree. The airman was later declared 20% disabled due to a service-related injury, entitling him to disability benefits. To be eligible for disability benefits, a veteran must waive the portion of retirement benefits equal to the amount to be received as disability benefits.2 As do most veterans,3 the airman submitted a waiver, reducing his military retirement pay. This also reduced the payments that went to his ex-spouse. The ex-spouse sought enforcement of the divorce decree and a judgment for the amounts lost due to the airman’s waiver. The trial court granted the spouse’s request and ruled that the airman was responsible for ensuring that the spouse received “her full 50% of the military retirement without regard for the disability.”4 The Arizona Court of Appeals and Arizona Supreme Court affirmed.5 The jurisprudential history of dividing military benefits in divorce starts with the 1981 Supreme Court case McCarty v. McCarty.6 There, the Court held that federal statutes providing for military retirement benefits preempted state community property laws. Thus, a state court lacked the power to divide a military pension in a divorce. In response, Congress enacted the Uniformed Services Former Spouses’ Protection Act.7 The Act gave state courts the authority to divide “disposable retired pay” in a divorce.8 However, the definition of “disposable retired pay” excludes any money waived in order to receive disability benefits.9
The Supreme Court explained these provisions in Mansell v. Mansell.10 At the time of the divorce in that case, the veteran was receiving both retirement pay and disability benefits.11 The parties executed a property settlement that awarded the spouse half of the veteran’s “total military retirement pay, including that portion of retirement pay waived so that [the veteran] could receive disability benefits.” Four years later, the veteran sought to amend the divorce decree to exclude his total retirement pay from division. The trial court denied the request, but the Supreme Court reversed. The Court wrote that the explicit text of the Act authorized the trial court to treat “disposable retired pay,” but not “total retired pay,” as community property.12 Returning to Howell, the trial court did not expressly divide the disability pay. Rather, it ordered the airman to essentially reimburse his ex-spouse the payments she lost because of his waiver of benefits. Presumably, these funds could come from any source and not necessarily his disability benefits. In its opinion, the Supreme Court noted a split of authority on the issue.13 Courts in Alaska, Massachusetts, and Tennessee allowed judges to order an indemnification of retirement benefits lost because of a waiver.14 Courts in Mississippi and Vermont found the practice to be in violation of federal law.15 Relying on Mansell to resolve the issue, the Supreme Court held that it was improper for the Arizona court to order the division of the disability pay. The ex-spouse argued that Mansell was different. There, the veteran had already waived retirement benefits to receive disability pay, whereas, in Howell, the waiver took place after the divorce decree. The Court disagreed, stating that the trial court lacked the authority to extinguish the veteran’s future right to a waiver of benefits and that the trial court could have considered that waiver when making the award.16 The Court was also unconvinced that the indemnification was different from an order dividing military disability.17 Accordingly, the Supreme Court reversed the
trial court’s order requiring reimbursement of benefits lost due to the waiver. Therefore, it should be clear. A veteran’s nondisability retirement benefits are subject to division in a divorce proceeding; his or her disability benefits are not. That, however, is not the end of the story. As noted by the Howell Court, if it appears that a service member or a veteran may elect a waiver of disability benefits in the future, a court may take that into consideration when dividing marital assets. The basic holding of Howell appears to be the law in Arkansas. In 1999, the Arkansas Supreme Court considered Ashley v. Ashley.18 When the parties in Ashley divorced, the veteran was receiving benefits based in part on a finding of 30% disability. The spouse was awarded $428.95, payable semimonthly, as her share of the veteran’s retirement pay. The veteran later received a 100% disability rating and waived his retirement benefits accordingly. The government stopped sending the spouse payments. As in Howell, the supreme court held that the trial court could not reinstate the payments. This, however, did not preclude the ex-spouse from seeking an increase in alimony because of the lost retirement benefits. In Murphy v. Murphy,19 the chancellor noted that the veteran’s pension was $1554 per month and ordered him to pay his spouse $361 per month in alimony. The veteran challenged the award, noting that the entire pension was disability retirement. In affirming the award, the Arkansas Supreme Court acknowledged that the spouse was not entitled to a portion of the disability pay, but held that federal law did not relieve the veteran from making alimony payments. The following year, the supreme court considered Womack v. Womack,20 where the spouse was awarded $425 in permanent alimony in lieu of her right to receive disability compensation. In hindsight, the lower court should not have referenced the disability benefits. Still, the supreme court presumed that the order complied with federal law and found the scenario analogous to Murphy. In other words,
just as the Howell Court instructed, an election to receive disability payments may be taken into consideration when awarding alimony or dividing marital property. However, there is a line of court of appeals cases that should be called into question in light of Howell. In Surratt v. Surratt,21 the parties executed a property settlement agreement, whereby the spouse was to receive half of the veteran’s retirement income. The agreement expressly provided: Barbara shall be entitled to receive onehalf of Jerry’s military monthly retirement income as it was at the time of the Complaint for Divorce being filed and that should there be any cost of living increases that Barbara will be entitled to one-half of the same. That the said retirement income will not fall below the amount that Jerry was receiving at the time of filing this suit even if Jerry’s disability retirement increases. Jerry will receive 100 per cent of the monthly retirement income that is related to and labeled as disability income and Barbara shall receive one-half of the balance of the monthly retirement income as stated above as well as any increases thereto but never will receive less than the amount that Jerry is receiving as of the day of the Complaint being filed and that Barbara will be paid directly from the U.S. Government, if possible.22 The veteran later received a 100% disability rating, and the government stopped sending payments to the ex-spouse. The trial court later ordered the veteran to make monthly payments of $383, representing one-half of the amount of retirement pay at the time of the divorce. The Arkansas Court of Appeals found that the money was intended to be periodic payment of the property division. The court stated that Ashley was inapplicable because that case did not involve a property-settlement agreement.
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State Board or DEA Licensure Issues? Call Pharmacist/Attorney Darren O’Quinn
800-455-0581 www.DarrenOQuinn.com Representing: Doctors Pharmacists Nurses Healthcare Providers The Law Offices of Darren O’Quinn 36 Rahling Circle, Suite 4 Little Rock, Arkansas 72223 Six years later, the court of appeals decided Provencio v. Leding.23 The initial property-settlement agreement awarded the ex-spouse all the veteran’s military retirement and disability pay. The parties subsequently agreed that the ex-spouse was no longer entitled to the veteran’s disability benefits, and that provision of the agreed order was voided. The veteran later received a 100% disability rating and no longer drew retirement pay. In response to a contempt petition, the trial court ordered the veteran to continue making the payments that the former spouse was receiving under the agreed order. The court of appeals leaned heavily on Surratt and affirmed. The court of appeals specifically noted that the veteran was not ordered to use his disability benefits to make the payments and that he could make the payments from any resource available to him. The most recent iteration of the problem occurred last year in Nesbitt v. Nesbitt.24 There, the parties executed a property-settlement agreement assigning the ex-spouse 32% of the veteran’s retirement benefits. Soon after, the veteran started receiving disability payments, resulting in a decrease in his military retirement. The trial court ordered the veteran to pay the difference, and the court of appeals affirmed. The problem with Surratt and its progeny, 28
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however, is that the cases abrogated by the Supreme Court in Howell also involved propertysettlement agreements.25 There may remain a question as to whether parties can bargain away the protections of federal law. As a minimum, the result in Nesbitt is troubling, as the similarities between it and Howell are too close for one to reasonably consider Nesbitt good law. Surratt and Provencio are closer calls. Both involved agreements that took into consideration the veteran’s receipt of disability benefits. While this article will not attempt to predict how the Supreme Court would rule in these cases, it will suggest that practitioners who continue to rely on them do so with extreme caution. The best way to avoid the problems presented by Howell may be to anticipate the possibility that a veteran may waive retirement payments to receive disability payments when proposing a property-settlement agreement or a decree of a court. One way to address this issue may be to award a nominal amount of alimony to the payee spouse. A division of the disability pay would be clearly off limits. However, a court may have the discretion to increase alimony, not to offset the loss of income created by the veteran’s decision to take disability pay, but to account for the increase in the payor spouse’s ability to pay and the payee’s spouse financial need.26
Howell v. Howell clarifies the law with respect to dividing military benefits upon divorce and modifying property rights post-divorce. Though the case does not represent a drastic departure from established law, attorneys who represent military clients or their spouses should become familiar with the opinion and, if necessary, incorporate its lessons into their practice. Endnotes: 1. 581 U.S. ____, 137 S. Ct. 1400 (2017) (Howell II). 2. 38 U.S.C. § 5305. 3. Because military retirement is taxable and military disability is not, most veterans elect to waive the retirement benefits, resulting in increased take-home pay. See Mansell v. Mansell, 490 U.S. 581, 583–84 (1989). 4. In re Marriage of Howell (Howell I), 238 Ariz. 407, 409, 361 P.3d 936, 938 (2015). 5. Howell II, slip op. at 5; Howell I, 238 Ariz. at 412, 361 P.3d at 941 (2015). 6. 453 U.S. 210 (1981). 7. 10 U.S.C. § 1408. 8. 10 U.S.C. § 1408(c)(1). 9. 10 U.S.C. § 1408(a)(4)(iii); see also Mansell, 490 U.S. at 585. 10. 490 U.S. 581 (1989). 11. Id. at 585–56. 12. Id. at 589. 13. See Howell II, slip op. at 5. 14. See Glover v. Ranney, 314 P.3d 535 (Alaska 2013); Krapf v. Krapf, 439 Mass. 97, 786 N.W.3d 318 (2003); Johnson v. Johnson, 37 S.W.3d 892 (Tenn. 2001). 15. See Mallard v. Burkart, 95 So. 3d 1264 (Miss. 2012); Youngbluth v. Youngbluth, 188 Vt. 53, 6 A.3d 677 (2010). 16. Howell II, slip op. at 6–8. 17. Id. at 7. 18. 337 Ark. 362, 990 S.W.2d 507 (1999). 19. 302 Ark. 157, 787 S.W.2d 684 (1990). 20. 307 Ark. 269, 818 S.W.2d 958 (1991). 21. 85 Ark. App. 267, 148 S.W.3d 761 (2004). 22. Id. at 270–71, 148 S.W.3d at 763. 23. 2011 Ark. App. 53, 381 S.W.3d 82. 24. 2016 Ark. App. 487, 503 S.W.3d 807. 25. See note 14; see also Howell I, 238 Ariz. at 408, 361 P.3d at 937 (noting that divorce decree was entered “[p]ursuant to the parties’ agreement”). 26. See, e.g., Foster v. Foster, 2016 Ark. 456, 506 S.W.3d 808; Kuchmas v. Kuchmas, 368 Ark. 43, 243 S.W.3d 270 (2006) (both cases noting that the primary factors in determining an alimony award are the payor spouse’s financial need and the payee spouse’s ability to pay).
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Report from the
2017 National Conference of Commissioners on Uniform State Laws By J. Cliff McKinney
The Uniform Law Commission (ULC) held its 126th annual National Conference in San Diego, California, on July 14-20, 2017. Arkansas was represented by its commissioners, David Nixon, John Shepherd, Cliff McKinney and Vince Henderson, who serves as an associate commissioner. The Conference heard the following acts on final reading: 1. Directed Trust Act; 2. Protected Series Act; 3. Revised Uniform Parentage Act; 4. Model Veterans Treatment Court Act and Model Veterans Treatment Court Rules; 5. Guardianship, Conservatorship and Other Protective Arrangements Act; and 6. Regulation of Virtual Currency Business Act. The Conference heard a first reading on: Criminal Records Accuracy Act; Civil Remedies for Unauthorized Disclosure of Intimate Images Act; Nonparental Child Custody and Visitation Act; Fiduciary Income and Principal Act; Amendments to UCC Articles 1, 3 & 9; and the National Mortgage Repository Act. The Conference’s rules for approving proposed acts typically require consideration at two consecutive annual meetings. Following is a brief description of the acts that were approved on final reading this year. Uniform Directed Trust Act: The purpose of this act is to address the division of a trustee’s traditional responsibilities when the actual responsibility for trust management is divided among multiple specialists. It is standard practice in estate planning and asset management to name a single trustee who is technically given custody of all trust assets. In practice, though, the actual
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management of some or all trust assets may be given to one or more specialists who are not the actual trustee, such as a professional stock portfolio manager or real estate manager. This divided control creates uncertainty about the fiduciary status of the non-trustees who actually direct the trust assets versus the responsibility of the true trustee. This act clarifies the duties of the true trustee vis-Ă -vis the specialists who actually direct the trust assets. Uniform Protected Series Act: Businesses with multiple operations or locations, such as restaurant chains, often desire to isolate each business unit in a separate limited liability company. The primary reason is to segregate the legal liability risks associated with each unit. Businesses typically use a holding company structure to hold all of the separate companies under common management. This often creates a cumbersome process. The purpose of this act is to create a framework for the formation and operation of a protected series limited liability company. A protected series limited liability company has both horizontal liability shields and a traditional vertical liability shield to enable businesses to establish one entity to run multiple units. Approximately 15 jurisdictions have already adopted some form of a series limited liability statute. This act is designed to provide a uniform framework for all states. The act is designed to work with any limited liability company act, not just the Uniform Limited Liability Company Act, though it is yet to be seen whether it would interface better in a jurisdiction with the Uniform Limited Liability Company Act. Arkansas
has not yet adopted the Uniform Limited Liability Company Act. Uniform Parentage Act: This is a revision of the Uniform Parentage Act of 2000. The scope of the act includes: the parent-child relationship; voluntary acknowledgments of paternity; registry of paternity; genetic testing; and proceedings to adjudicate parentage of children of assisted reproduction. The United States Supreme Court decision in Obergefell v. Hodges1 triggered a need to update this act. The revised act addresses issues related to same-sex couples, surrogacy, the right of a child to genetic information, de facto parentage and the parentage of children conceived through sexual assault. An aspect of this act requires donors of gametes for assisted reproduction to provide a history of known potential genetic diseases for the child to use later in life. This act might be improved by extending this requirement to perpetrators of sexual assault so that children so conceived might also have valuable genetic history information. Model Veterans Treatment Court Act: This is a model act as opposed to a uniform act. A uniform act is designed to be adopted by all states while a model act is designed to
J. Cliff McKinney is a Managing Member of Quattlebaum, Grooms & Tull PLLC
provide an example for states to follow and the Commission is not advocating universal adoption. Many jurisdictions around the country have already created veterans’ courts to divert veterans in the criminal justice system into rehabilitation services. These courts recognize that many veterans suffer from substance abuse problems because of their military service and consequentially need special assistance. These courts are often created by rule or practice rather than statute. This act provides a framework for implementing such a program. This framework requires the approval of the prosecutor for the diversion into treatment and provides the court powers of punishment for violation of the terms of program participation. This act generated a particularly robust debate over whether the veterans courts should be open only to honorably discharged veterans or all veterans regardless of discharge status. The final version of the act applies to all veterans regardless of discharge status. Ultimately, all states adopting this act can decide, as a policy matter, which veterans should be able to take advantage. Uniform Guardianship, Conservatorship and Other Protective Arrangements Act: This is an updated version of the Uniform Guardianship and Protective Proceedings Act, which was originally promulgated in 1969 as part of another act and was revised in 1982 and 1997. This act is meant to modernize the law to better protect the rights of both minors and adults who are subject to a guardianship or conservatorship order. The theme of the act is to encourage the use of the leastrestrictive means of addressing the situation necessitating the guardianship or conservatorship. The act also includes optional forms to help courts implement the act effectively. Uniform Regulation of Virtual Currency Business Act: The purpose of this act is to create a framework for regulating virtual currency (i.e., bit coins). Many businesses are now engaging in the exchange of virtual currencies for cash and other virtual currencies. These businesses are also trading goods and services for virtual currency. The purpose of this act is to address issues in this area related to licensing requirements, reciprocity, consumer protection, cybersecurity, anti-money laundering
McMath Woods is thankful for: The right to trial by jury, our great referring attorneys, and 64 years in business helping injured and wronged Arkansans.
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and the supervision of licensed virtual currency businesses.
the Commission, and is happy to assist with any questions.
You can find more information about each of these acts at www.uniformlaws.org. This website has a copy of each act along with supporting information. The Arkansas delegation is honored to represent our state at
Endnote: 1. 135 S. Ct. 2584, 192 L. Ed. 2d 609 (2015). ď Ž
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Women in the Legal Profession A Panel Discussion
The Editorial Advisory Board of The Arkansas Lawyer magazine hosted a panel discussion on women in the legal profession on September 12, 2017 at the Arkansas Bar Center. The purpose of the panel was to provide insight from several perspectives on the challenges that women in the legal profession are facing now and have faced in the past. The transcript from the discussion is provided in this article. Special thank you to the women who participated in the panel discussion: Judge Kristine Baker, U.S. District Judge, Eastern District of Arkansas; Professor Theresa M. Beiner, Associate Dean for Academic Affairs, UALR William H. Bowen School of Law; Haley Heath Burks, Moderator, Fuqua Campbell, P.A.; Ashley Welch Hudson, Moderator, Kutak Rock LLP; Kandi Hughes, Southwest Power Pool; Jamie Huffman Jones, Friday, Eldredge & Clark; Jane Kim, Wright Lindsey Jennings; Kathleen M. McDonald, Beacon Legal Group; Kristi Moody, Windstream; Debby Thetford Nye, Kutak Rock LLP; Justice Annabelle Imber Tuck, Retired Arkansas Supreme Court Justice; Carolyn Witherspoon, Cross, Gunter, Witherspoon & Galchus, P.C.; and Andrea Grimes Woods, Nabholz. Also special thanks to Bushman Court Reporting for sponsoring the recording of the transcript; Cris M. Brasuell, CCR, Bushman Court Reporting for transcribing and to Michael Pirnique for the photography. 32
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Ms. Hudson: First off, thank y’all so much for taking time out of your day to be here today. My name is Ashley Hudson. I’m a partner with Kutak Rock here in Little Rock. Haley Burks and I are moderating today’s event where we’re going to talk about women in the law here in Arkansas for The Arkansas Lawyer magazine. I started practicing in Arkansas about 10 years ago. And while it doesn’t seem like that long ago, and Jane can probably attest to some of this because we were in law school together, we’ve seen a lot of changes just in the time that we’ve practiced. We’ve certainly had to tackle a lot of issues as women trying to balance work and family, trying to come up with how to manage your business development and your practice and what kind of direction you want your practice to go. I know we have people here from big and small firms, in house, and judges. I know that trying to deal with sexism is something that has been an issue for women here in Arkansas for a long time. In fact, back in law school, I remember the female law students being pulled aside and taught how to dress for court. Pantyhose, of course, were required; suits with jackets, long sleeves, covered up from the wrist to the neck down to the knees. And, in fact, I was reprimanded about six or seven years ago by a judge who I will not name for baring my forearms in his court; so it is still alive and well. But we are all here today from different practices and different experiences, so I’m looking forward to talking about that. I’ll let Haley introduce herself and then we’ll go around the room. And if you would, when you introduce yourself, if you could tell us not only your name but where you’re from and a little bit about the evolution of your practice since you started. Haley? Ms. Burks: I’m Haley Burks. I, like Ashley, am really happy to be here today with all of you and I really appreciate you all coming out to discuss what are really important topics to all of us who are females practicing in the law and important to people of all different areas in Arkansas. I have been practicing for six years. I started out clerking for Judge Bobby Shepherd on the Eighth Circuit. And now I’m at Fuqua Campbell practicing commercial litigation, primarily patent litigation. I also have a four-month-old daughter and a two-and-a-half-yearold daughter and my husband’s a lawyer, too. Tonight I have a Junior League meeting and I have a baby sitter to take care of my kids while I
go to the Junior League meeting in an effort to connect and network. I think figuring out how to do it all, is it possible to do it all, can you do it all and survive, are all questions that I’m interested in. And certainly sexism, business development as a woman, I think is a lot more—it’s different than as a man; it just is. And how do you deal with that, how we work through that are all things I’m interested in talking about today. And how you manage two careers at home or do you take off when your children are little or not go out. The children, all those things are things we’re excited about to talk today. Ms. Hudson: So if we could just go around the room and let everyone introduce themselves, I will start to my right, so Debby? Ms. Nye: Debby Nye and I am practicing with Kutak Rock. I have been in practice for over 30 years, so I have probably run the full gamut of seeing things happen with women attorneys, and I’m very pleased to be here today. I practice in healthcare, corporate healthcare regulatory, basically. I still get asked does that mean you defend doctors; I say no. But I’ve seen a lot over the years. I kind of started with the attorney general’s office and worked through DHS and then into private practice with the firms. So I’m anxious to hear from you all. And I don’t get much time to be able to work with younger women lawyers other than every once in a while I get to practice with Ashley, so I’m anxious to hear what you all have to say. Ms. Hughes: My name is Kandi Hughes. I have been practicing for almost eight years. I’m an attorney with Southwest Power Pool, which is a regional transmission organization. I’ve been there for about a year now. Prior to that, I was associate general counsel at UCA, so a pretty big switch for me. I still do a lot of our HR matters. I did some of that at UCA, as well; corporate services, regulatory type work. And I’m also excited to be here today. I feel like I do everything under the sun. This year was supposed to be my year of the no but it was the year of the yes, apparently. So I’m a wife, I’m a mom of a seven-year-old and a four-year-old. So I too am like Haley, looking forward to hearing what people’s thoughts are about that work-life balance. Vol. 52 No. 4/Fall 2017 The Arkansas Lawyer
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Ms. Woods: I am Andrea Woods; I live in Conway. I’m from Fayetteville originally. I have a son who just started college, which still freaks me out. I have a daughter who’s in ninth grade and getting ready to start driving. So I’ve done the career and family like many of us do. I am Corporate Counsel for Nabholz Construction. I’ve been there 12 years. Before that, I worked in the city attorney’s office in North Little Rock. I’ve worked in a medium-size law firm where I was the first woman they ever hired, so that was interesting. I’ve also worked as an assistant prosecuting attorney straight out of law school many years ago. This is my 21st year of practice, and I love the law. It amazes me, though, when I look around the room, to see there are younger attorneys still experiencing things in their practices, in their professional lives that I thought maybe the ladies who practiced in the 70s and 80s had tackled and gotten out of the way for those of us coming after them. I’m interested to hear from everyone. Ms. McDonald: Hello, I’m Kathleen McDonald. I’m the managing partner of Beacon Legal Group. We’re a small firm, and I primarily practice immigration law, so yes, I’ve been pretty busy. I started out as a deputy prosecuting attorney for six-and-a-half years in Pulaski County, and I agree there are some district court judges who do kind of whatever they want, and I think that sometimes, advances that we make in the “bigger towns” like Little Rock
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don’t necessarily follow through as quickly to the smaller towns. Since I’m in charge of our immigration practice, I also do a lot of business development. I am neither married nor do I have kids. I have a dog. I don’t know that I’ll have kids, so I’m probably the other “weird” one at the table. But that’s a little about what I do. Professor Beiner: I’m Terri Beiner. I’m a professor at the U of A Little Rock Bowen School of Law. Prior to this job, I practiced law in San Francisco at a 100-lawyer firm where I had the distinction of being the first female associate to have a baby prior to making partnership. I have all kinds of stories about that. I’ve been a professor at the law school for the last 23 years. I’ve raised three children on my own, and so I also know balancing work as a single mother with, for one period of time, having three kids at three different schools that I had to get them to in the morning and get them home from in the afternoon; and don’t even start on the extracurriculars. So I certainly know something about work-life balance. Also, one of my areas of scholarly expertise is actually women in the profession, so this is an issue near and dear to my heart. Ms. Moody: I’m Kristi Moody. I’m general counsel at Windstream. I’ve been general counsel for just a few months. Before that, I was senior vice president at Windstream and have been there since 2006. I started at Windstream to oversee dispute
resolution and litigation. And my practice has developed into assisting with strategic initiatives, corporate governance, and board support. So it’s been a nice opportunity for me to diversify my career. Prior to Windstream, I was at Wright Lindsey Jennings for 11 years doing primarily insurance defense litigation. I ended my career at Wright Lindsey doing nursing home defense before unfortunately the nursing homes in the state started running without insurance and those cases have kind of died off, I think. So that’s my career. I grew up in south Arkansas and went to law school here at UALR. I have two children, two girls. One is a junior in high school; she’s driving and we’re doing college tours and she’s at Little Rock Central High School. And I have a nine-year-old at Jefferson Elementary. So we have work-life balance issues. My husband also works. He is a part-owner of a small business in Little Rock, PK Grills, so we have a lot on our plates. I’m looking forward to hearing everyone’s pearls of wisdom on how to balance our lives and our careers. Judge Baker: I’m Kristine Baker; I’m a United States District Judge. I’ve been on the bench about six years now, which seems hard to say, but I’ve been on the bench that long. Even having served those years, I am still relatively new to the bench in the Eastern District of Arkansas. Prior to that, I practiced at a medium to large firm. I litigated primarily commercial
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litigation cases but handled all types of cases that came into the firm. And before that, I clerked for Judge Susan Webber Wright for two years at the start of my practice. I was with her during an exciting time when lots of things were going on in the legal community in Little Rock. As a judge at that time, she presided over President Clinton’s case, the White Water grand jury, and many other types of cases. So that was a very interesting time to work with a very interesting person and to see first hand how someone dealt with high profile matters in the deep end of the pool, so to speak. My husband is a lawyer, as well. We have four children ages fourth to tenth grades. Our children attend three different schools right now, so I understand and appreciate those who have experienced the scheduling challenges that presents. Ms. Kim: I’m Jane Kim and I started practicing in 2007, as Ashley mentioned. I’ve been at Wright Lindsey Jennings since that time. I’m on the Labor and Employment team, and my practice primarily involves defending employment discrimination and wage and hour claims and providing employment law-related advice and training to employers. I’m also the chair of our firm’s recruiting committee. I’m originally from Chicago, my husband is also a lawyer, and I have two very spoiled, spoiled dogs. Ms. Witherspoon: So I’m Carolyn Witherspoon and I feel really old sitting here listen-
ing to all of you. I’ve been practicing since 1978. I started in the city attorney’s office and then went into private practice with a big law firm that imploded in and then we merged with a regional law firm out of New Orleans. So I had the pleasure of traveling all over the United States but mostly to New Orleans where I had my own personal cab driver who would pick me up and take me to all the very best places to get shrimp po’boys which I could take on the plane back then. The labor and employment law group split from that firm, and we became our own firm, which is now and still has been Cross, Gunter, Witherspoon, and Galchus, and we’ve been in that firm for 20 years. This is our 20th anniversary. So I have been there and done all that. Yesterday, I got a present from my daughter. It was a big t-shirt that had Wonder Woman on it. That’s what she always called me. She said, mom, you’ve done it all and you’re still doing it. And she’s right. I did everything. I had a great time in every firm I’ve ever practiced with, not just mentioning the po’boys. But bar leadership opportunities came my way. Our firm is predominantly female now, which I’m very proud of. We won’t stay that way much longer, but we have been for several years. Our firm is very supportive of the opportunities that lawyers get for outside activities like bar leadership institutes, bar leadership opportunities with the Arkansas Bar and the American Bar and the Pulaski County Bar, et cetera. I was divorced in law school. I grew up with one daughter, and that’s my Wonder Woman
daughter now. And she’s a widow and she has cats and I have a dog. And I’m married to a wonderful guy. We’ve been married forever and he supported me. When I had graduated from law school, he supported all my weird, crazy activities like being president of the Arkansas Bar Association. So I’m here to tell you that, yes, you can do it all and it’s okay to screw up occasionally and it’s okay to not make partner your first year. I was lucky enough to do that, but I’m just here to be the witness to say you can do everything you want to do and be successful at it and have a great time. And stop worrying about all that guilt. Ms. Jones: My name is Jamie Jones. I unfortunately am following Carolyn after her great introduction. I’m going into my 14th year of practice at Friday, Eldredge, and Clark where I’m a partner. I’ve been married 17 years to my husband who’s very supportive and we have a sevenyear-old daughter. Most of my practice is 100% defense litigation, mainly in the areas of class action, personal injury, and municipal liability. Justice Tuck: Well, I’ve been listening to the number of years people have been in practice and I think I’m one year ahead of you. My name is Annabelle Tuck. I have had various names which has created a problem for me in getting an enhanced driver’s license and I won’t go through that long travail. My book club already has heard it.
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Ms. Witherspoon: It’s a great story. Justice Tuck: Anyway, I started out as Annabelle Davis Clinton at Wright Lindsey Jennings (no relation to Bill Clinton). At the time I began practicing law, I wanted to be a litigator. I did not want to be in family law necessarily, although I was willing to take family law cases. I wanted to be in litigation in the courts before juries, which was pretty new at that time for a woman. Some of us here have worked at Wright Lindsey Jennings, and it was a challenge to get the insurance companies to let women lawyers represent them—but I had great trainers: Jim Moody, Gordon Rather, Alston Jennings. Ed Wright was the one who offered me the job just before he died I will always have a fondness in my heart for Wright Lindsey Jennings because I went through a divorce while I was there, and they were very supportive. At the time I was up for partnership, I asked Bob Lindsey to take me off the partnership track because I had an infant baby and didn’t think I was producing. As some of you have already raised the issue of guilt, I think we’re hardest on ourselves. Mr. Lindsey looked at me and said, “We don’t judge you by what you’re doing right at this minute; we look at what you’ve done in the past, we know what you’ll do in the future, so just stop worrying about that.” Then he asked whether I had a lawyer. Upon hearing my negative response, Mr. Lindsey offered to make a call. And the person he got for me has just run for president of the United States and lost. After many years of experience, I no longer have to do CLE, which is strange. But I will assure the Arkansas Bar Association that I will continue to attend CLE programs. I was fortunate to have a law firm that not only was very supportive of public service and community service but that was good about letting me run for office when I mouthed off about the quality of the judiciary in the state courts. 36
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So I ran and fortunately won and went on the trial bench. And the experience I had on the trial bench was—there were times when I felt that being a woman judge was a little different. I was a single parent and it’s a journey. Maybe you cannot do everything at the same moment but you can experience all of it and grow from it, both intellectually and spiritually. And I encourage y’all to take care of yourselves. That’s one thing that I—with a few more years under my belt, I have learned that maybe I should have been a little more focused on taking care of my own body and my own mental health. Ms Hudson: I feel like I have been remiss now that we’ve all gone around the room and not mentioning my children for the record. I don’t want them to read this some day and think that I didn’t care enough about them. So I also have kids. I have four beautiful children. I won’t go into their names or accomplishments because we’d be here all day, but I did want to mention it, and two dogs. So thank y’all very much for those introductions. And I think that we can say that we’re pretty lucky to have such a great group here today. Ms. Burks: I think what the Justice was just saying is a perfect segue for one of the topics that we had on the plate today, which was how do you take care of your own mental and physical, emotional and spiritual health while also trying to take care of your kids or your pets or your community or your parents, aging parents, and do your job and get your clients. How do you take care of yourself and do everything else? Ms. Witherspoon: I’d like to speak first about the importance of chocolate. You’ve got to reward yourself and my main reward is chocolate. So if you can do dark chocolate more than once a day, you’re going to be fine.
Ms. McDonald: I think part of “taking care of ourselves while doing everything else” goes to what Kandi was saying. It’s learning to say no. I’m not very used to doing that, I bet many of us are not used to it, and I’m making myself do it more often out of necessity. I guess it’s lightened my load a little bit, but that doesn’t mean that I’m not still running around from early morning until late in the evening. Even so, I think it’s important to say no, and I also think it’s important to not feel guilty when you’re saying it. Probably part of what helps me not feel guilty is that I’m still doing so much other stuff, so at least when I say no, it’s not like I’m doing it to just sit on my rear end. That said, even if I was saying no in order to sit on my rear end, if that’s how I was taking care of myself, that should be fine. It’s really hard! But balance, balance is the key for everything. Ms. Woods: And the balance will fluctuate. Ms. McDonald: Exactly. Ms. Woods: If you think about it, if you’re making a house of cards, I mean, someone walks by and it’s going to disrupt the balance. So being aware that you’re constantly going to be adjusting, that took me longer to learn than I thought it would. And I think that you get in, sometimes, to a whirlwind of doing so much and not saying no, that the people around you are just trying to stay out of the way, much less, try to encourage you to take a break. I recently added a campaign for circuit judge to my list of things to do, and I had to listen to the people who told me it’s okay not to go to that event, spend time with your family, take a nap if you want to. And to give them the opening to say that, because you do get into your roles and you’re moving and you’re working. And I think being open to just relaxing, taking the load off yourself is really important.
Ms. Hughes: I live and die by a calender. I mean, two phones. I have a calendar at home and I have a calender at work. And so one of the things that my mom suggested to me that’s been helpful, I’d say in these last four or five months, is to schedule the time in for yourself. I mean, literally put it in the calendar. Because I found that it would be an afterthought. It would be, oh, I can go try to get a massage on Saturday or I can try to get my nails done on Monday during lunch or something like that. And then 90 percent of the time, it wouldn’t happen. So now I’ve started to actually put it in there. And my parents have access to my calendar, and my husband does, too. And it’s like if you see massage on the calendar, don’t bother me. You know, don’t call me, don’t text me. That has really worked for me. Ms. Jones: And I take help when I can get it. I used to be really bad at saying, no, I can do this all myself. So something as simple as what you said, Kandi, I put it on my calendar and then my assistant backs me up on it. So I once went two years without a haircut. It was on my calender but something else would come up, and my assistant was like we really need to get you a haircut, and so she would start helping. So just accepting help from people and being strategic when I say yes. When I say yes to something, although not illustrated by my presence today, I try to coincide that with something that I can do with my little girl or something I can do with my husband or something with business. That way, I’m at least strategic about where my time is going. Ms. Moody: I agree with that. I’ve gotten better about consulting my husband before I say yes. I was really bad about that for a long time and I realized that we were both resentful. But it was my fault because I was saying yes to things, volunteer activities, school activities, whatever it was; additional work.
And so I’ve learned to try to either say no or at least consult him or give him an update that this is getting ready to happen versus just kind of going out and doing it. Because if you say yes to something, you want to feel supported by your family in whatever endeavor that is, and so I’ve tried to be a little bit better with that in the last year. I’ve also stopped all volunteer activities. I’ve placed a moratorium on that for the next 12 months. When this opportunity opened up, I had already stepped off the board of the Komen Foundation. I’ve stepped away from the Arkansas Rep Theatre as well, and really I’m sad about that. There’s a part of me that misses it. I love those activities because they feed me and I enjoy them, but I just decided I’ve got to say no. Plus, my kiddo’s a junior and she’s going to be going away soon, so I’m trying to focus on her. But it’s hard, because you feel compelled to volunteer, to support your community in addition to your family. Professor Beiner: I think it’s really important to let things go. For example, I have let my house go. If you went to my house, I always describe it as like a snow globe somebody shook and then put down. So, I mean, my house is a mess. There is baseball gear. You will walk in the front door and there is a baseball helmet and a bat and cleats right by my front door. At least my son knows where to find them, so that question about where are my cleats does not happen. But most people don’t have baseball gear laying by their front door in their living room. Studies do show that if you can afford to pay somebody to take care of that stuff, your time is much better spent elsewhere than cleaning your house. I, unfortunately, had two kids at expensive out-of-state colleges at the same time, so I was the cleaning person in my house, which meant it just didn’t get clean and that was okay. You have to pick and choose what you pre-
fer to do, and I preferred sitting on a sideline watching my son play baseball and making sure my job got done. Don’t get me wrong. I multitask. I sit and read and prepare for class between innings when he’s not doing anything, so there’s multitasking going on. But it’s perfectly fine to just let stuff go that you can’t get to. Nothing terrible is going to happen because you haven’t vacuumed for two weeks. Ms. McDonald: Being really busy has forced me to try to work more smartly. And I, just like you, Jamie, have had to be okay delegating stuff instead of saying I’m just going to take care of it myself. But I think having to do that has made me work better, so I’m learning. Ms. McDonald: And that leads into one of the things we were going to talk about—not competing with everybody, with other women, all the time. I definitely think we all do that. Ms. Hudson: And to that end, do you think today with social media, the 24-hour news cycle, Pinterest, you see all of these images that are curated whether we intend to or not, but images of people at their best all the time. I mean, no one posts pictures of their son’s cleats by the front door. They post a picture of their living room ready for a party or the extravagant birthday party they did for their 12-month-old. Do you think that these type of influences have made it more difficult for women practicing now because we have these visible standards that we’re trying to live up to or do you think that it’s just an extension of challenges that have always been there? Ms. Witherspoon: So I go to a lot of bar association meetings nationally. And everything that everyone said here everyone else is saying nationally. It’s no different here than it is in Chicago or New York or San Francisco. Women are facing the same things there that
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“That perfectionist tendency, the competition, trying to do it all and have it all at one time on your plate with everything going on, even with all of that—you can’t be afraid to fail. You can’t be afraid to be criticized. You can’t be afraid to have people who disagree with you.” we’re facing here, so I don’t know that social media plays such a big role in whether my living room looks perfect for Active Years or Soiree or whichever magazine’s coming that day. I think the basic ideas and the basic concerns are present with everyone. Ms. McDonald: I think it’s a fascinating phenomenon, because although social media can have that aspect of “let’s compare how perfect our living rooms are,” it also enables us to easily check in with friends and loved ones and see what’s going on. So I think, again, there’s that balance. There’s good and bad with all technological innovations. They may make some things worse but they also make many things better. So I think part of our job, everyone’s job, not just women’s, is to figure out how to use these innovations most appropriately and positively.
sometimes women are each other’s worst enemies, especially in the profession. So I’m wondering where do we think that originates. Does it originate in law school? Does it originate in our teenage years? Where does it come from and what is the best way to create a helpful community as opposed to a competitive community between women? Justice Tuck: I think it really goes back to our socialization as women. You know, we weren’t encouraged to go into athletics and be on teams and help each other as teams, which also affects our ability to delegate. So we were supposed to take care of everybody else, which is a one-way street. We were not encouraged to be a part of groups that did things together. Maybe Girl Scouts was one of them but it was very few and far between to work as teams. Ms. Witherspoon: When we grew up.
Ms. Jones: It can also have the effect of showing a three-dimensional person. So rather than just being a litigator if someone is a Facebook friend of mine, they also see that I’m a wife and I’m a mother. And, hopefully, as that starts becoming more and more common, it’s harder for somebody who might make a snarky comment about being a mother or something like that in a professional atmosphere because they start seeing you more as a three-dimensional person rather than just this one-dimensional stereotype that they might have in their mind. So maybe it will have that positive effect going forward. And for the rest of the Pinterest stuff, I think we’ve got to go with what the professor said and just let that go. I’m never going to have a Pinterest party for my daughter. Ms Burks: On the issue of competition between women, I am very fortunate now to be at a firm that’s very female friendly and has had a lot of women and moms with flexible schedules and things like that. But I’ve also certainly experienced the other side, which is 38
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Justice Tuck: I was told by my mother, “You’re going to have to do this on your own because nobody’s going to be out there to help you.” And I don’t say that to be critical of her, but that’s what she experienced. So I think the more girls are now involved in athletics, you’re seeing a new generation of women coming up who I think are more team or group oriented. But I still think we have the greatest problem delegating and it’s because we need to work in teams. And I know the law school is working on that with study groups and everything. Because the studies are that most lawyers are introverts. Now, I know you think litigators are not introverts but they are, because they are doing a one-way communication. And they are in control. So most of our time is on our own, is doing our work. And I’m no different. What you have is people who are not extroverts. And all of us have had to learn some of the critical skills that would be extrovert related. But we’re not prone to asking for help. We want to go off in our own little corner, do our
own little thing, do our own little work. And I think with I.T. now and the way the law practice is going to be changing because of I.T., you’re going to be more into group management type things and working together. I was a paralegal first and I had to set up teams on litigation. I was the only one who would say, okay, now, we need minutes, who’s going to do what, when are they going to do it, and to work in teams. But it wasn’t because I’d had that experience, it was just because I had some organizational skills. Ms. Nye: Well, I was just going to echo what you’re saying. I think just the way women are raised has defined how we have joined the legal profession. Of course, Carolyn and Judge and I, we kind of grew up in that era where we had to distinguish ourselves because no one else was going to. I think that now, as I get to kind of float around the firm and kind of interject myself in places, just to hear what’s going on, especially with the associates, there’s still a world of difference between the male associates and the female associates. Justice Tuck: Absolutely. Ms. Nye: Simple things like, the guys, they arrive at 8:30 or 9:00 all ready to go and get after it. They got up, got themselves ready, probably had breakfast made for them and came in and they’re ready to get after it. And then you wander around and you see the female associate and she’s already going after it and she’s been up for three or four hours. Ashley gets up at four o’clock because that’s the only time she can go work out. That’s not happening on the other side and we see it. I mean, it’s very obvious in the way the associates handle themselves and present themselves. I don’t know any way around it other than, as women, we just have to project ourselves. If you’re comfortable getting up at four o’clock in the morning and dealing with that
and then coming to work, that’s great. You shouldn’t have to worry about comparing yourself against the male associate who got up at eight. I mean, that’s not the way you’re going to be judged. No one’s going to know that difference but you, and you just have to define for yourself how you’re going to be able to handle it, make that difference, do what you want to do. And I absolutely agree with you all. There’s no reason why we can’t have it all and do it all. We just have to decide how our path is going to be structured. Because you can and there’s plenty of us that can show you it works. Ms. Moody: I think you have to define what having it all, though, is for you. Ms. Nye: Exactly. Ms. Moody: It’s very individual. So I think that we have a false sense of what having it all is. It took me a long time to figure that out and I think we have to try and figure out what that is for you because it’s individualized to every person. And then once you’ve figured it out, or at least some part of it, I think it’s obtainable. It’s just society places unrealistic goals on not just women but men and women these days. Ms. McDonald: Justice Imber, one of the things that you said very much resonated with me, which was that we don’t ask for help. And for some reason, that’s different in my brain from delegating. But I have a subconscious little voice that says when you ask for help it means that you can’t do it or it means that you’re being weak or you’re less than or something like that; which obviously isn’t correct, but I think that probably a lot of us have that in our heads. That’s something we women have to get over. Ms. Kim: As Haley mentioned earlier, I too work at a firm that’s very supportive of women, and I’ve never experienced any kind
of nasty competition during my 10 years at the firm. But I remember participating in a law school moot court competition where local attorneys were serving as judges—when it came time for the judges’ comments, a female attorney’s advice to me was that, given my height and lack of “girth,” I needed to consider bringing a step stool with me and using it every time I go to court because without it I would lack courtroom presence. Ms. Woods: That’s not distracting from your message. Ms. Kim: Fortunately, once I started practicing, I received actual constructive advice from female colleagues. Ms. Moody: Jane, I had the same experience at Wright Lindsey. I never felt competitive. It is a welcoming, supportive firm and I think you and I are very lucky in that regard. I don’t have the sense of competitiveness in the workplace that maybe others have. I think, however, as women, we’re competitive with each other by nature, and it’s hard not to be competitive with other women. I think in a professional setting, we have to resist that and consciously make an effort to support other women. Bring them along, mentor them or ask to be mentored by them. And some of that, it’s very difficult to ask for help from another woman. And I think networking events is probably something that I should personally focus more on. As women, we probably should. It gets relegated to the very low, the last thing on the to-do list, clearly. We don’t usually participate in activities that are classic networking, for instance, golf. Some women golf, but it seems the majority of women usually do not. But, you know, just to use that as an example, all the guys in my office can always go golf together. All the girls in my office, we’re not going to golf together. So I think making sure that
we come together as a group and making sure we’re supporting one another would be helpful to reduce competition with other women. I’m competitive with men, too. I’m just competitive by nature. Ms. Hudson: And I think people in the legal profession in general are competitive. I wanted to jump off some of the undertones in this, and this is a little bit off script, so sorry, guys. But since we do have people who are running for office or who have run for office or who have been appointed to office, I wonder what you think about women taking risks. And this is for everyone. But I think that women tend to hesitate more before they do take a big step, to put themselves out, such as putting themselves out to run for office. The appointment process, I’m sure, was something you had to think about before you jumped in. Or put themselves out for a big promotion or for a change in career. So I wondered what you think about women’s hesitance to put themselves in those positions or to run for office. Do you think that women tend to sidestep those kinds of opportunities? And if you do think that, how can we support women who want to take those steps? Professor Beiner: Last week in a law school class, I called on a female student who hedged her answer so much before she came out with the exact right answer. I find that women often are hedgers. Well, I’m not sure I have this right and then she’s right. You’re just right, okay? The men in my class rarely do that. And we hedge all the way through our careers. I had a friend call me from UNLV and ask me if I was interested in being their dean. And I told her, oh, I’m not ready for that. She tells me that every woman says, oh, I’m not ready to do that. The men are like, sure, I can be dean. So I think we do this to ourselves sometimes. We stop ourselves.
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I took my associate dean job after a careful negotiation with my 15-year-old son. Mom’s going to have more hours here, I’ve got some night stuff, dah, dah, dah, dah, dah; and I’ve got to work summers. I mean, we do juggle. Realistically, we, as women, are often in a slightly different position, especially when we have family obligations, when we have to make these choices, unfortunately. But we should do it still. We should do it with the support of our families, with the support of our friends. We should encourage each other; because looking at the stats on women down the road, even in federal judgeships, we’re still well behind. In partnership ranks, we’re still well behind. Justice Tuck: Yes, way behind. Professor Beiner: We need to be encouraging women to stick in there and take those opportunities. Ms. McDonald: We should put together the female golf groups. I mean, seriously, that kind of stuff, let’s do it! We’re certainly going to have as much fun. Ms. Witherspoon: I can drive the beer cart. Ms. Nye: One of the things with getting older and having gray hair, you get the opportunity to say more of what you really think and I’ve been practicing a lot of that lately. I’ve decided, especially after the election, that I’m not going to just sit there and I’m going to say what I think. Now, I try to be focused on just where I am and when I’m saying things, but I don’t think that, as women lawyers, we should try to become men lawyers. I think that we should celebrate the fact that we are women and we, I think, do things quite differently and actually much more effective with it. And I don’t think we should make excuses. And I agree with you. I judge these competitions, too, at the Fayetteville law school. It’s amazing to me how many of the women presenters had to qualify everything they’re saying. It’s just like, are you this way, are you that way. It’s because I know they’re right and they know they’re right; but it’s kind of the way, unfortunately, still the way, that women grow up in the world. Now, I grew up differently. I grew up on teams. I’m a golfer and I often attribute the fact that I was successful in business and I 40
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think practicing law as a business because I played golf. I played with the guys. I went with the guys when they played. I took clients and potential clients to play golf and it made all the difference in the world. I don’t think that they looked at me the same way that they would have looked at somebody else that invited them over for a nice lunch. Justice Tuck: I want to echo that. We were talking earlier about finding your own voice. My experience, I remember this very vividly, Henry Woods was active in the Hastings trial advocacy course and he brought them here, when I was at Wright Lindsey Jennings, to do a workshop on how to present yourself and you would get videotaped. Well, if you’ve ever seen yourself in a videotape, well, I still hadn’t found my voice. And like you say, trying to be like the guys, I was bombastic, I was so bad. And I looked at that and it was a great teaching tool. That’s not me. It may be Henry Woods but it’s not me. And I said to myself, no, I wouldn’t believe you if I was on a jury; not at all. You’re being fake, you’re trying to be someone else. And to find your own way as a candidate, as a lawyer, an advocate, you do not have to be bombastic. You do not have to be a knowit-all. But you need to get comfortable in your own skin to who you are. And you can be soft and firm. Juries will listen to very soft voices because they want to hear it. And I just found that whole issue of trying to be a man—I look back at pictures of me in my early days of practice, the bow, that jacket, the short, short hair. Ms. Nye: Now, some of that was style. Justice Tuck: When I ran for the bench the first time, my campaign consultant sent me to Jamileh Kamran, who is an immigrant from Iran but a citizen now. The idea was get me out of black, brown, and beige, and I was put in bright colors. Rich purples, very bright reds, bright, blues. Do you know how different it made me feel? I was not hiding anymore and I was visible. It’s not that you’re trying to be the center, but just so that you know you’re not hiding. And that was a real teaching tool to me. It’s not that I wear high heels because I would trip over myself. And, of course, the podiatrists tell us not to wear high heels. But, it’s how you enjoy yourself as a person holistically. Don’t go to the office and be somebody else and then
go home and be somebody else. I went to a woman’s college and we were back for our 10-year reunion and we had a panel presentation on how can you have it all. I was a single parent and I was feeling guilty and I said, “I can’t get there to bring the cookies to the classroom when it’s needed and everything.” And this woman answered me and said, “Maybe your child right now is telling you, because you’re late to pick them up every time you’re supposed to, that you’re not doing what you should. But let me tell you, when they get to be in their 20s and 30s, they’re going to be so proud of you.” And that is really true. Ms. Witherspoon: That is true. Judge Baker: I think one thing, in terms of running for office or seeking appointed offices, you can’t be afraid to fail. Justice Tuck: Exactly. Judge Baker: That perfectionist tendency, the competition, trying to do it all and have it all at one time on your plate with everything going on, even with all of that—you can’t be afraid to fail. You can’t be afraid to be criticized. You can’t be afraid to have people who disagree with you. If you have found your voice, if you know who you are, if you have people who support you—men, women, friends, coworkers, whoever they are—you can’t be afraid to fail and get back out there if it doesn’t work out the first time. That confidence is important, and it is important to remember what’s the worst thing that can happen if you don’t receive what you’re seeking? You’re right back where you are now, right? I mean, that’s not a bad place to be if you’ve done everything right to get there. But finding that self-confidence, I think, helps that process. As a judge, you watch many people convey a message. There are lots of different ways to be effective when doing that. But trying to be someone you’re not doesn’t work for anybody. I think you have to watch people to find your own voice, find your own way. There’s definitely more than one way to convey your message, so I think that’s important to watch different styles but, in the end, you have to develop a style of your own. I think in terms of seeking these challenges, whether it’s partnerships, whether it’s an in-house counsel job, whether it’s a different
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in-house counsel job than the one you have right now, you have to not be afraid to fail. You have to not be afraid of someone saying it is not your turn, not right now. If that happens, and if you want that opportunity, you also can’t be afraid to get back out there to try again. Justice Tuck: We need to have more lawyers in the legislature. And if you’re going to run for office, realize people are going to disagree with you. And when you’re on the bench, people are definitely going to disagree with you. You’re not there to be everyone’s friend or to get mealy-mouthed about things. I mean, you’ve got to believe in what you want to accomplish. I mean, we have good examples like Joyce Elliott. You just deal with the fact that people are going to disagree with you and that’s okay. Ms. Witherspoon: You don’t have to read that article in the paper that’s so scathing. Ms. Woods: Or check Facebook every night. Ms. Moody: Andrea, how have you found your voice in a male-dominated industry like construction? I’m also in a male-dominated industry. How have you found your voice? Ms. Woods: My husband’s answer to that would be different than mine, probably, that they hired me because of my voice. Ms. Moody: So would mine, by the way.
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ROGERS
Ms. Woods: Actually, it’s been a great environment. And I was going to ask you all, when I hear about the firms being flexible and being open to women coming and going as needed, knowing the work is getting done with effective advocacy for clients, I love hearing that. I knew that Nabholz was the place for me. I heard about burnout with a lot of in-house lawyers in corporate environments and the expectations that they’re going to litigate and do so many other things could be unreasonable in a lot of corporate environments. But I interviewed with who’s now our CEO. And during the interview, he said, “Let’s just brainstorm for a minute; would it help you at all if you just come in after you drop off the kids and then you can pick them up and go home and then, you get back online after the kids had their snack and they
start their homework?” And I thought, ding, ding, we have a winner. Because whether or not I did that, him saying, “Hey, let’s brainstorm. Let’s talk about how we can make this the best place for you to work,” and that truly is the kind of company for me. They’re probably unique in that respect, so I have been very fortunate to work with them. I’ve wondered if it is related to many of them being close to my generation. If they went to law school, their classes would have been 40 percent women. Many of their spouses work or have worked; education is very important to them. Their daughters are all very professionally and personally successful. So they’re very in tune with the needs of working parents, and I’ve never thought that my gender there was an issue. Women have to be confident going in knowing, “I don’t have to work at that law firm because it’s not what I thought it would be or I don’t have to get that promotion right now or have to be willing to move,” and know that they’re going to be fine. They’re going to be fine. Ms. McDonald: And if they’re not, find some other place that will be fine for you. Ms. Jones: But you bring up a really good point, Andrea, and that’s that not only do we need to not be so competitive with women and support each other but the support of our male colleagues can really be instrumental in our careers. And I’ve always felt very, very supportive at my firm. There’ll be an opposing counsel as a young associate, whether it’s being young or being female, that you communicate with them and they call your older male partner and having that partner say, no, you’re going to communicate with Jamie supports and validates you and really helps you grow as a young lawyer or a female lawyer. That’s been my experience. You cannot underestimate the impact that your male colleagues can have on fighting some of that sexism in the workplace. Ms. Kim: From a private law firm standpoint, the reality as of now is that men outnumber women in management and equity partner positions. Since those numbers are reflected in the mentor pool, it’s important that our male colleagues recognize the value in mentoring and approach mentorships in a meaningful way.
Ms. Woods: I’ve had a good mentor at Nabholz. But I have, especially in the last few years, wanted a female mentor. I’ve talked to Carolyn before. I’ve reached out to a friend of mine at Wright Lindsey to have insight from another female lawyer at a certain stage in her life or who has already been through that stage. To have that connection has been very helpful to me. Ms. Hughes: One of the things that my mom, who clearly is a big influence in my life, talked about when I was kind of transitioning, trying to figure out what I was going to do after I first graduated because I was in private practice for just a hot second, was the importance of having like what she calls your board of directors. So, maybe one person that is in your field, a person that’s not in your field. You have someone maybe in your church, just kind of a group of four or five people, women and men, who can kind of pour into you and feed into you various aspects of your life to help keep you whole. So I’ve tried to implement that. My mentor in the legal profession is a male judge, and he definitely gives me a different perspective from what I would think for myself or advice that I may get from my mom. Although we may not necessarily have female counterparts in other firms and things like that, people who can help mentor us. I think there is a lot of value in having that same type of relationship with other people, too. Ms. Hudson: I hate to cut us off but we have reached the end of our time. I think we could have probably gone on for another hour, easily. Thank y’all again so much for taking time out of your day and talking about these issues. I’m sorry we didn’t get to everything, because I really do think we could have gone on for an hour or more and still not touched on everything we wanted to talk about. But I do appreciate your time and I hope this is going to be useful and interesting for people to read. Thank y’all very much for sharing your experiences.
Arkansas Women Judges Honored The Arkansas Supreme Court Historical Society, Inc. recently honored the following women who have served, or currently serve, as Arkansas’ state-court appellate judges: • Karen R. Baker, Court of Appeals; Supreme Court (current) • Beth Gladden Coulson, Court of Appeals • Elizabeth W. Danielson, Court of Appeals • Betty C. Dickey, Supreme Court • Courtney Hudson Goodson, Court of Appeals; Supreme Court (current) • Rita W. Gruber, Court of Appeals (current) • Josephine L. Hart, Court of Appeals; Supreme Court (current) • Sarah J. Heffley, Court of Appeals • Margaret Meads Ising, Court of Appeals • Marian Fox Penix (posthumous), Court of Appeals • Andree Layton Roaf (posthumous), Supreme Court, Court of Appeals • Judith Rogers, Court of Appeals • Elsijane Trimble Roy (posthumous), Supreme Court • Annabelle Clinton Imber Tuck, Supreme Court • Elana Cunningham Wills, Supreme Court • Rhonda K. Wood, Court of Appeals; Supreme Court (current) In addition, the following women have served, or currently serve, as federal judges in Arkansas: U.S. District Court • Kristine Gerhard Baker (current) • Susan Owens Hickey (current) • Elsijane Trimble Roy • Susan Webber Wright (current) U.S. Magistrate Judges: • Carol Crafton Anthony • Beth Deere (current) • Patricia S. Harris (current) • Beverly Stites Jones • Marian Fox Penix • Erin L. Wiedemann (current) U.S. Bankruptcy Court • Audrey Evans • Phyllis M. Jones (current) • Mary D. Scott
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VOCALS—Celebrating 35 Years of Service By Jean Carter This year VOCALS, the Volunteer Organization for the Center for Arkansas Legal Services, is celebrating 35 years of lawyers giving back to their communities. The program was founded in 1982 because the Pulaski County Bar Association recognized the need for the private bar to be involved in supporting legal aid for our neighbors living in poverty. VOCALS members are attorneys in private practice who donate their time and financial support to the Center for Arkansas Legal Services (CALS), which is the legal aid provider for 44 of Arkansas’s 75 counties. The program was a first of its kind partnership in Arkansas, bringing together the private bar and legal aid to narrow the justice gap. Though VOCALS started with Pulaski County, it soon spread to Pine Bluff, El Dorado, Hot Springs, and many other areas of the state, with the support of local bar associations. Sister pro bono programs also began to emerge, including the River Valley Volunteer Attorney Project, the Equal Access to Justice Panel, and Arkansas Volunteer Lawyers for the Elderly. With a service area that stretches from Fort Smith to Lake Village and from Texarkana to Little Katelyn Busby VOCALS Attorney of the Year for the 10th Judicial District
Rock, CALS faces an overwhelming demand for assistance from the hundreds of thousands of Arkansans living in poverty in its service area. VOCALS members provide critical support which allows CALS to serve many more clients that it could with its staff of just 25 attorneys. In fact, last year, private bar volunteers closed more than 250 pro bono cases through VOCALS. Furthermore, financial donations from VOCALS members provided enough funding for approximately three fulltime legal aid attorneys at CALS. By supporting these staff positions, over 450 more cases were closed than could have been without VOCALS support. As we celebrate the accomplishments of 35 years of the VOCALS program, we want to thank all of you who have supported this effort over the years. We also want to say a special thank you to
Jimmy Dill VOCALS Attorney of the Year for Jefferson County
this year’s VOCALS award winners: Abtin Mehdizadegan (Pulaski County), Jimmy Dill (Jefferson County), and Katelyn Busby (10th Judicial District). The time or money you donate to VOCALS provides far more than a resolution to a case. It provides hope to: a survivor of domestic violence trying to start a new life, a veteran struggling to access the benefits he earned, and an elder who has been defrauded by an unscrupulous business. Thank you. Jean Carter is the Executive Director of the Center for Arkansas Legal Services.
Abtin Mehdizadegan VOCALS Attorney of the Year for Pulaski County
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Xarelto®
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Vol. 52 No. 4/Fall 2017 The Arkansas Lawyer
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EXPERIENCE MATTERS Have an appeal? Need help? We can do it for you. We have the experience to do the job right.
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DISCIPLINARY ACTIONS Final actions from July 1, 2017 - September 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 S. “SKY” TAPP, Bar #76123, of Hot Springs, whose disbarment opinion and order, 2017 Ark. 185 (May 2017), was summarized in the previous Bar magazine issue with the notation that a petition for
rehearing was pending at publication time, had his petition denied and the Mandate issued September 28, 2017, ending the case. INTERIM SUSPENSION: CHRISTOPHER ROBERT HART, Bar #2003084, of Little Rock, had his Arkansas law license placed on interim suspension by Order filed August 25, 2017, in Committee Case No. CPC 2017-022, based on a finding by a Committee panel that Hart presently poses a substantial threat of serious harm to the public and his clients if he continues to practice law and based, in part, on his pending felony drug charges in Garland and Johnson Counties. CAUTION: QUENTIN E. MAY, Bar #2006034, of Little Rock, by Consent Findings & Order
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Vol. 52 No. 4/Fall 2017 The Arkansas Lawyer
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filed September 15, 2017, in Committee Case No. CPC 2017-017, on a complaint filed by Tina Warner of Bryant, Arkansas, on admitted violations of Rules 1.3, 1.4(a) (3), and 1.16(d), agreed to a caution and $5,000 fee restitution to Warner. In 2015 Warner retained May and paid him a $5,000 retainer. Later, Warner had difficulty contacting May and obtaining information from him about the matter. In May 2016, Warner discharged May, and employed and paid new counsel in Arkansas $2,500 to handle the same matter. New counsel could not obtain the file from May. In March 2017, OPC got the file from May and provided it to new counsel.
KEITH G. RHODES, Bar #77110, of Des Arc, by Consent Findings & Order filed July 21, 2017, in Committee Case No. CPC 2017-015, on a filed opened as a result of a media inquiry, on admitted violation of Rule 8.4(d), agreed to a caution. In September 2012, Frederick Owens was charged with first degree murder in Prairie County, Arkansas, and Owens was in custody in jail or prison until April 2016. In April 2016, the case, not having been tried, was dismissed on a speedy trial violation. Rhodes was the deputy prosecuting attorney for Prairie County from before September 2012 through December 2014, and directly responsible for ensuring the Owens case was timely processed and that a speedy trial violation did not occur.
We’d love to see all Arkansas’ lawyers, judges, family members, and law students this happy… but, until that time comes, JLAP is here for you when you’re having some bumps in your road because of stress, anxiety, depression, drinking or using drugs too much, problems from past trauma, family troubles, or cognitive impairment. Call Sarah or Laura at 501-907-2529 or go to www.arjlap.org and send us a confidential email.
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Vol. 52 No. 4/Fall 2017 The Arkansas Lawyer
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IN MEMORIAM Edwin Boyd Alderson, Jr., died October 5, 2017, at the age of 77. He attended The University of the South at Sewanee, Tennessee, where he graduated with a degree in Philosophy in 1962. He did a year of post-graduate study in Philosophy at the University of Georgia. He obtained his Juris Doctor degree from the University of Arkansas and returned to El Dorado as an attorney with Crumpler, O’Connor, Wynne and Mays, and later with Murphy Oil Corporation. In addition to his varied business interests, he was first elected as the Union County Municipal Judge in 1972 and served in that capacity for 20 years. He is a lifetime member of the Arkansas District Judges Council. He served two six-year terms on the Arkansas State Board of Law Examiners. Judge Alderson has served on the Arkansas Judicial Ethics Advisory Committee since its inception in 1992 and served as its Chairman until his death. He was a member of the Arkansas Bar Association. David Francis Butler, Jr., of Magnolia died August 13, 2017, at the age of 62. He graduated from Southern State College in 1977 and was a 1980 graduate from the University of Arkansas School of Law. He practiced law for more than 35 years in Oklahoma and Arkansas and was elected in 2014 as Prosecuting Attorney of the Natural State’s 13th Judicial District. David worked as a prosecuting attorney for nearly 25 years. He was a vital part of the Arkansas judicial system and the local law enforcement community. He was a member of the Arkansas Bar Association. Edward Grauman of Helena died September 16, 2017, at the age of 86. He earned a bachelor’s degree from the University of Mississippi in 1954. In 1957, he received his JD degree from the University of Mississippi School of Law. Ed returned to Helena where he practiced law and joined his father in the Grauman Cotton Company. In 1973, Governor Dale Bumpers appointed Ed as Municipal (now called District) Judge of 54
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Helena. Subsequently elected to the position, Judge Grauman served for 18 years and was active in the Arkansas District Judges Council and the Arkansas Bar Association. Herman L. Hamilton, Jr., of Hamburg died October 6, 2017, at the age of 83. Mr. Hamilton graduated from the University of Arkansas in 1955. He then attended the University of Arkansas School of Law, and graduated in the spring of 1957. He was a published author of the Arkansas Law Review, and had the distinction of passing the Arkansas Bar Examination before he graduated law school. Upon graduation, he moved to Hamburg, where he joined William S. Arnold in the practice of law. That law firm grew exponentially into the venerable law firm of Arnold, Hamilton and Streetman, adding Thomas S. Streetman in 1964, William S. Meeks in 1980, and his son, James A. Hamilton, in 1989. In 1998, he and his son formed the law firm of Hamilton and Hamilton and continued their record of service. They added a partner, Timothy R. Leonard, in 2006 and their law firm is now Hamilton, Hamilton and Leonard, PLLC. He held the office of Hamburg Municipal Judge from 1962 until 1982. He was a member of the Arkansas Board of Law Examiners from 1966 until 1971, where he served as Chairman from 1969 until 1970. He served as president of the Arkansas Bar Foundation from 1981 until 1982. He was instrumental in the creation of the IOLTA program in Arkansas, and served as the President of the Arkansas IOLTA Foundation, Inc. from 1985 until 1986. He was a member of the Arkansas Bar Association for 60 years, and was a Fellow in the American College of Trust and Estates Counsel for over 30 years. Albert Rowell Hanna of El Dorado died July 22, 2017, at the age of 74. Albert graduated from Hendrix College in 1965 and received a Juris Doctor degree from the University Of Arkansas School Of Law. Albert also received a degree in Spanish from South Arkansas University. He was a member of the Arkansas Bar Association and the Union
County Bar Association. He is a former Deputy Prosecuting Attorney for Union County. Theodore Charles Lamb of Little Rock died August 8, 2017, at the age of 65. Ted attended Earlham College in Richmond, Indiana, and graduated in 1974 with a BS in Biology and graduated from UALR Law School in 1983. He practiced civil law as a young attorney working at his own private practice. Ted eventually specialized in employment law while working for the Equal Employment Opportunity Commission. He began his work with the EEOC in Charlotte, North Carolina, in 1997 as an attorney. In 1999, Ted transferred to the Little Rock branch where he worked as a mediator, administrative judge, and eventually the ADR coordinator for the Memphis district. Ted had a great passion for the law, and he believed in equal rights and opportunities for all people. He was a member of the Arkansas Bar Association. Lynne Trulock Ravellette of Little Rock died August 17, 2017, at the age of 64. She graduated from the University of Arkansas with a bachelor of arts degree in English and from the University of Arkansas Little Rock School of Law in 1993. She served as a law clerk to the Honorable Robert Dudley. Upon his retirement Lynne went into private practice. She later retired from the U.S. Veterans Administration legal department in North Little Rock. Lynne became a member of the Arkansas Bar Association upon becoming licensed and served the association in many capacities. She was a member of the Government Practice Section and the Labor and Employment Section. Lynne also served on numerous committees including Appellate Practice, Attorney/Client Privilege, Indigent Representation, Health Law, Public Sector, Law School committees, and Young Lawyers Section Executive Council. William Joel Rinke of Little Rock died October 26, 2017, at the age of 64. He was a retired attorney for the Arkansas Board of Review and a member of the Arkansas Bar Association.
IN MEMORIAM Charles B. Roscopf of Helena died August 23, 2017, at the age of 89. Mr. Roscopf was born and raised in Phillips County. He was an Eagle Scout and a counselor at Cedar Valley Scout Camp. After graduating from Marvell High School as valedictorian, he served as a Navy corpsman at Camp Pendleton, California. He attended Hendrix College before enrolling in the University of Arkansas School of Law. While in law school, he was president of Kappa Sigma Fraternity and was elected to the Arkansas legislature, where he served for six years. In 1954 he married the former Mary Anne Maddox and joined the law firm of Burke and Moore in Helena. He was a delegate to the 1969 Constitutional Convention where he helped design the county government provisions that were eventually enacted. He was one of the founders of DeSoto School, an active member of the First United Methodist Church, and a past president and Paul Harris Fellow in the Helena Rotary Club. In 1991 he served as the president of the Arkansas Bar Association and later as the president of the Arkansas Bar Foundation. He was actively practicing law until July of this year. Charles M. “Skip” Mooney, Sr., of Jonesboro died September 20, 2017, at the age of 82. Skip Sr. was a graduate of Jonesboro High School, and Arkansas State College, class of 1956. He graduated with an ROTC commission as a second lieutenant in the U.S. Army and married Mary Carolyn before moving to Fort Carson in Colorado Springs. After returning to Arkansas, he attended the University of Arkansas School of Law in Fayetteville and earned a Degree of Bachelor of Laws and was admitted to the Arkansas Bar in 1961. That year, he started his legal career as an associate with attorney James E. McDaniel before being elected as the City Attorney for Jonesboro for two terms. He served as President of the Craighead County Bar Association in 1967. He was issued a Degree of Juris Doctor from the University of Arkansas in 1969. He had been in private practice for 56 years, becoming a prominent Arkansas lawyer while building a legacy for his family. During his career he was a law partner in Ward & Mooney,
Mooney & Boone and in 1999 he and his son, Skip Jr., established the Mooney Law Firm, P.A., a third generation litigation firm, where he worked until his recent demise. He was a member of the Craighead County Bar Association, the Arkansas Bar Association and he had been an Arkansas Bar Foundation Sustaining Fellow since 2001. He was so admired and loved by his family that one son and both of his granddaughters chose to follow in his legal footsteps. K. LeAnne DanielMyrick of Glenwood died September 23, 2017, at the age of 58. Following her passion for public service she worked for the US Army Corp of Engineers while attending Ouachita Baptist University where she got her BA in 1981. Soon after, she pursued her life-long dream to be an attorney by attending the University of Arkansas-Little Rock Bowen Law School and graduating in 1984. LeAnne joined the Wright, Chaney and Berry Law Firm in 1984, becoming a partner in 1991, and spent almost 20 years practicing law in Arkadelphia. LeAnne centered her practice in bankruptcy and real estate law. She attended to clients’ needs all over Southwest Arkansas and was a member of the Arkansas, Federal and Bankruptcy Bars. She had many close friends in the various bar groups in Arkansas. In 2003, LeAnne decided to “hang a shingle” for her own practice. She took over an established law practice in Nashville, Arkansas, and then expanded to include a title company. While in Nashville, she served in various municipal capacities in surrounding communities including a stint as City Attorney for Mineral Springs and Glenwood. The culmination of her legal career was her appointment in 2006 and later election in 2012 and reelection in 2016 as Pike County District Judge, a position she maintained until her death because of the generosity of the local bar and other District Judges who were willing to serve for her during the months she was incapacitated.
The Arkansas Lawyer
Quarterly
0 5 4 6
0
4 0
4
9/28/17 $35
Anna Hubbard
2224 Cottondale Lane, Little Rock, AR 72202
501-375-4606
Same Arkansas Bar Association
2224 Cottondale Lane, LR, AR 72202
Anna Hubbard
2224 Cottondale Lane, LR, AR 72202
Same
Arkansas Bar Association
2224 Cottondale Lane, LR, AR 72202
X
X
The Arkansas Lawyer
20,725
4500
1045
2667
654
1730 0
0
0
0 1699
4397
0 0
0
0
0
0
0
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4397 103
1787
4500
100
100
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1699 1699 100
0
0
0 100
X X November 2017
The information contained herein is provided by the members’ obituaries.
Vol. 52 No. 4/Fall 2017 The Arkansas Lawyer
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Classified Advertising WANT TO PURCHASE MINERALS AND OTHER OIL/GAS INTERESTS. Send details to: P.O. Box 13557, Denver, CO 80201.
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February 7-9, 2018 2018 Mid Year Meeting Marriott Hotel, Little Rock February 28-March 2, 2018 57th Natural Resources Institute Hot Springs
ONLINE WEBINARS check www.ark.com/cle for schedule
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ArkBar’s CLE Season Pass Select Membership is a Winner! “The Season Pass is a great savings, and I don’t have to worry about getting my hours in when I have so many opportunities to attend class.” Harvey Harris, Harris Law Firm, North Little Rock ““Arkansas Bar’s Season CLE Pass gives you a key that unlocks a bunch of CLE doors that will help this lawyer keep on top of his client’s needs, and all for one great price.” Patrick Hays, Former North Little Mayor One flat rate for Unlimited ArkBar CLE—by the hour or seminar. Call Stephanie at 501-375-4606 X 102 to upgrade your membership. arkbar.com/cle/select
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National Academy of Distinguished Neutrals 49 Odom Law Firm
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Odom Mediation Services
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Stephens Insurance, LLC
Back Cover
Taylor Law Partners, LLP
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The Law Offices of David H. Williams, PLLC 47 The Law Offices of Darren O’Quinn
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Tschiemer Legal Briefing
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Wilson & Associates
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Wright Lindsey Jennings
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Vol. 52 No. 4/Fall 2017 The Arkansas Lawyer
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2018 ArkBAR mid-year meeting February 7-9, 2018 Marriott Hotel Little Rock, Arkansas
Meet Me at Mid-Year!
National Institute for Trial Advocacy Program
Young Lawyers Section Program
Elder Law Track
Learn the art of taking and defending depositions
Probate Law Track
ADR Track
Brochure coming soon to your mailboxes. Visit www.arkbar.com/midyearmeeting for updates. Thursday Afternoon Party ! All ArkBar members and guests are invited to attend complimentary party with DJ. Plus—YL S After Party on Thursday. Attendance at meeting not required.
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