april 1985

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THE ARKANSAS APRIL 1985 GUEST ARTICLES BY DR. ROBERT A. LEFLAR * BILL W. BRISTOW * VINCENT W. FOSTER, JR. * ROBERT D. CABE * G. ROSS SMITH * PHILLIP CARROLL * PROFESSOR ALBERT M. WITTE * ROBERT M. CEARLEY, JR. * J. W. DICKEY, JR. * CELEBRATING LAW DAY - MAY 1ST

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GUEST ARTICLES BY DR. ROBERT A. LEFLAR * BILL W. BRISTOW * VINCENT W. FOSTER, JR. * ROBERT D. CABE * G. ROSS SMITH * PHILLIP CARROLL * PROFESSOR ALBERT M. WITTE * ROBERT M. CEARLEY, JR. * J. W. DICKEY, JR. * CELEBRATING LAW DAY - MAY 1ST APRIL 1985

TRANSCRIPT

Page 1: APRIL 1985

THE ARKANSAS

APRIL1985

GUEST ARTICLES BY DR. ROBERT A. LEFLAR *BILL W. BRISTOW *VINCENT W. FOSTER, JR. *ROBERT D. CABE * G. ROSS SMITH * PHILLIPCARROLL * PROFESSOR ALBERT M. WITTE *ROBERT M. CEARLEY, JR. * J. W. DICKEY, JR. *

CELEBRATING LAW DAY - MAY 1ST

Page 2: APRIL 1985

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-: !.;

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Today we are the nation's thirdlargest title insurer, workingnation-wide with the legal pro­fession and serving with a special

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Page 3: APRIL 1985

April 1985Vol. 19. No. 2 LCx

ARKANSAS

OFFICERS

THE PUBLlCATtON OF THE ARKANSAS BAR ASSOCIATtON

SPECIAL FEATURES REGULAR FEATURES

55 The President's ReportWilliam R. Wilson. Jr .. PresidentDon M, Schnipper, President-ElectAnnabelle D. Clinton. Sec-TreasurerDavid M. "Mac" Glover. Council Chair

Wm. A. Martin. Executive DirectorJudith Gray, Assistant Executive

Director

Coming of Age: WomenLawyers in Arkansas

1960-1984, by AnnabelleDavis Cli~ton

57 Law. Literature & Laughter

58EXECUTIVE COUNCIL

Jack A. McNultyW. Kelvin WyrickGary NutterWilliam Russ Meeks IIIKaye S. OberlagTom OverbeyRobert S. HargravesRobert HornbergerJoe ReedDavid SolomonStephen M. ReasonerJames A. Mclarty

EX-OFFICIO

William R. Wilson, Jr.Don M. SchnipperDennis L. ShacklefordAnnabelle D. ClintonMartha M. MillerDavid M. "Mac" Glover

Historic Surroundings:An Infinite Variety 01 Law

Ollices' Styles and Qualitiesby Jacalyn Carfagno

Some Arkansas Cases.by Frances Mitchell RossToward the Bicentennial,

Part I by Dr. Robert A.Leflar, Bill W. Bristow

and Vincent W. Foster. Ir.

The Tax Relorm Act of1984: Real Estate Transactions.

by Michael O. Parker

64

66

71

75

78

8996

In MemoriamGenerations in the Law:William Starr Mitchell andJohn Thorpe Williams, byRobert L. Brown

Bulletin

EDITOR

Ruth M. Williams9899

Executive Director's Report

Young Lawyers' Update

100 Arkansas Bar Foundation

ON THE COVER:The bicentennial observance in 1987 of

the United Slates Constitution is beinglaunched in The Arkansas Lawyer with"Toward the Bicentennial of the Constitu­tion" - a series of articles on First Amend­ment issues pertaining to newspapers,educational materials and cable televi­sion programming, Dr. Robert A. Leflar,in an introduction to the series. reviewsthe 250th anniversary ofthe John Peter Zen­ger trial. called the "momingstar of theliberty which revolutionized America."The first articles in the four-part series, byBill W. Bristow and Vincent W. Foster, Jr.,will examine a newspaper's negilgence li­ability in reporting inaccurate informa­tion.

GUEST ART1Cl..ES BY DR. ROBERT A. u:rt.AR ..BIll. W BRlSIOW .. VINCDIT W fOS'lm. JR. ..ROBER\' D. CAN: .. G ROSS SMITH .. PHlllJPCAFlROI.l. .. PROfESSOR AImU M. WI'Tn: ..ROBERT M. CEARlEY. IR... r, W DICI<I:Y.!R ..

C11£BRAnNG LAW DAY MAY 1ST'

La\iJYer ~

TOWARD THEBICENTENNIAL• CONSTITUTION

All inquiries regarding advertisingshould be sent to The Arkansas Lawyerat the above address.

101 In-House NewsThe Arkansas Lawyer (USPS 546-040) is I _============================---jpublished quarterly by the Arkansas l-Bar Association, 400 West Markham,Little Rock, Arkansas 72201. Secondclass postage poid at Little Rock,Arkansas. Subscription price to non­members of the Arkansas Bar Associa­tion S15.00 per year and to members$10.00 per year included in annualdues. Any opinion expressed herein isthat of the author. and not necessarilythat of the Arkansas Bar Association. orThe Arkansas Lawyer. Contributions toThe Arkansas Lawyer are welcome andshould be sent in two copies to theArkansas Bar Center, 400 West Mark­ham, Little Rock, Arkansas 72201.

April 1985/Arkansas Lawyer/53

Page 4: APRIL 1985

It's Open SeasonOn La ers!

In fact, there's no telling when you'll be hitwith a law uit by a dissatisfied client.

Even the mo t competent attorney cannotalways avoid a suit, and often the wealthiest at­torney cannot afford one. Right or wrong. thenumber of claims is growing and the total dollaramount paid out in settlements is growing evenfaster. But we can help. CNA and the Arkansas BarAssociation haveworked together to come up with a comprehen­sive program of professional liability insurancefor its members that can help protect both yourfinancial and proessional future. First, it helpsto minimize the causes of liability suits throughloss prevention programs. Then, it provides fi­nancial protection to help guard you againstprofessional and business liability with a maxi­mum of $100,000 per claim ($300,000 annually)after a deductible.

Think you need more? Higher Limits-Up to$5 million-are available for an extra measure ofsecurity against large liability lawsuits.

Any case you handle could leave you wideopen to a lawsuit. So, let your Arkansas BarAssociation sponsored Comprehensive LawyersProfessional and Business Liability Plan helpprotect you from financial danger. To find out

54/Arkansas Lawye,/Ap,il 1985

all the important details, including the exclu­sions, any reductions or limitations and theterms under which the policy may be contin­ued in force, send the coupon below to the ad­ministrator: Rather, Beyer & Harper.362 Prospect Building, Little Rock, Arkansas 72207.Or call (50l) 664-8791.

,---------------------1I II Please send me information for the Arkansas Bar Association II

sponsored Lawyers Professional and Business Liability IInsurance. Send to:

I II Arkansas Bar Association Adminislr:ltor II Rather. Beyer & Harper I

362 Prospect Building Ii Lillie Rock. Arkansas 72207 I

I~_ II II ~,m II~~ II IIC~ I

Sponsored ......~~s~· II 'Zip by: ~-'A~" II State .... <;...;.~,JO>

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Page 5: APRIL 1985

THE PRESIDENT'S REPORT

HANDWRITING EXPERTScientific examination of Handwritten, Typewritten, Printed. Altered,Obliterated. Charred and Office Copier Documents; Ink and PaperAnalysis, Dating and other document related problems. Diplomate ofthe American Board of Forensic Document Examiners, Inc. Member ofthe American Society of Questioned Document Examiners and theAmerican Academy of Forensic Sciences.

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1109 N. 4TH STREETMONROE. LOUISIANA 71201

318-322-0661Qualified and Experienced Expert Witness in Federal,

State. Municipal and Militarv Courts.

'85 Congressof Interest

By William R. Wilson, Jr.

Undoubtedly the legal profes­sion will be interested in manyissues which will come before theFederal Congress in 1985.

The FTC Reauthorization Legis­lation will undoubtedly be backagain, and the organized bar willagain attempt to insure that thisagency is not given authority tomake unwarranted intrusions intothe disciplining of lawyers - a sub­ject that can be best handled bythe various state supreme courts.

The Arkansas Bar Associationis on record on this issue, andyour officers will continue to main­tain contact with our senators andcongressmen.

An attempt will be made toenact legislation which would in­sure the right of a lawyer for aparty to conduct reasonable voirdire examination in cases in Fed­eral District Court. Unfortunately,too many Federal District judgescategorically deny this basic dueprocess right. And there is littlepossibility that the appellate

courts will correct this un­fortunate situation.

In fact, your President has justlost a case in the Eighth Circuit onthis precise point. In the DistrictCourt I called a forensic psy­chologist and submitted the affi­davits of several leading trial law­yers, to the effect that it isimpossible to obtain a fair and im­partial jury unless the lawyer for aparty can participate. to a reason­able extent in the voir dire pro­cess. A petition for a Rehearing EnBlac is pending.

Both Arkansas senators are co­sponsors and vigorous supportersof the lawyer voir dire legislation.

By the time you read this, thefederal product liability legisla­tion will again be pending beforeCongress. While the Associationhas not taken a posi tion on thislegislative proposal. I can assureyou that its passage would bemost unfortunate for futurevictims of unsafe products. I amhappy to report that both sen­ators, and most of our congress­men, are on record in oppositionto this legislation.

On the home front, Martha Mil­ler, our lobbyist. is working at theLegislature and is doing a top­flight job. As the session pro­gesses you will be receiving re­ports from us.

Let me take this opportunity far

in advance of the 1987 session ofthe General Assembly to remindall members of the Associationthat we have a legislative time­table which requires that pro­posals be submitted to the ap­propriate committee and House ofDelegates several months in ad­vance of a session. I do not knowwhat the exact timetable will bein 1986, but there is no reason tobelieve that it will not be similarto the 1984 schedule. While it istrue that we may miss some worth­while legislation by requiringadvance submissions. the Houseof Delegates is the policy makingaIm of the Association, and itmust have time to get recom­mendations from the appropriatecommittee before taking a stand. fcontinue to be amazed that active.knowledgeable members of theAssociation submit proposals inNovember' or December before theGeneral Assembly convenes inJanuary. So, again, I urge you tofile this information in the back ofyour mind for future reference.

Keep your eye open for the pro­gram for our annual meeting inJune - I promise you it will be alalapalooza. The dates are June 5­8 - please mark your calendarnow. And the members of theHouse of Delegates are remindedthat it will meet Saturday morn­ing, June 8th. 0

April t98S/Arkansas Lawyer/55

Page 6: APRIL 1985

Consider theevidence.

You be the judge: Whatbetter location for an attor­ney in Little Rock is there?The Rogers Buildingstands within a block ofthe Pulaski County Court­house, VALR lAw School

• and Library, and the" Arkansas Bar Association.

It offers a parking deck,private health club andskywalk access to theExcelsior Hotel and theStatehouse ConventionCenter Complex, And itfeatures the office spaceconsulting services offamed Andre Staffelbach-absolutely free. Werest our case.

IR>DOYLE ROGERS

COMPANYCorporate !iui/lg like never hefore.

For lea$il/g il/formatioll. Clmlad til(' Doyle Rogl'rs Compally, 221 West Secolld Street, Suite 800,lillie Rock, Arka"sas 72201, (501) 375-1662.

56/Arkansas Lawyer/April 1985

Page 7: APRIL 1985

Law, Literature & Laughter

..

Stating rules that are helpful indealing with life has always beenpopular. Addressing Old Tes­tament legal concepts, scholarshave identified two types of laws:apodictic and casuistic.

The former is typified by uncon­ditional imperative statementswithout any stipulation of con­sequences or sanctions. For ex­ample, "Thou shalt not kill" (Ex.20:13). The latter is characterizedby a conditional statement anddifferentiation of various and sub­ordinate circumstances and isusually based upon the decisionof one in authority as to a specificfactual experience. Example: "Ifyou buy a Hebrew slave, he shallserve only six years and be freedin the seventh year, and need paynothing to regain his freedom"(Ex. 21:2).

These two categories remainwith us. A quick example of amodem day apodictic law is, "Themaximum lawful rate of intereston any contract ... shall not ex­ceed five percent (5%) per annumabove the Federal Reserve Dis­count Rate at the time of the con­tract" (Ark. Const. amend.60(a)(O ). Casuistic laws are rem­iniscent of Socratic law school tea­ching in which one must ferrettout the rule of the case. Example:Certain good faith mistakes offact resulting in minimal over­charges will exonerate a creditorin an otherwise usurious transac­tion. Davidson v. CommercialCredit Corp.• 255 Ark. 127, 499S.W.2d 68 (973).

In the Murphy's Law genre,many have entertained otherswith principles of diffuse utiliza­tion. My favorite is one I heardPhil Carroll read at a BarIuncheon some years back: "Theodds on the bread falling butter­side down are directly pro­portionate to the cost of thecarpet." Casuistic? Ask Phil.

In 1978 Russell Baker listed in acolumn a number of apodictic"principles for the guidance oflife." Among such admonitions as"Don't expect love from a cat" and"Never play poker with a mannamed 'Doc'," the injunction

"Avoid lawyers" appeared threetimes.

Inundated by letters from law­yers, who Baker said were "hurtrather than angry," he casuistic­ally commented in a later columnsaid he wouldn't mind his sistermarrying a successful lawyer. Butif she considered an unsuccessfulone, he would "urge her to con­sider a dentist before doing any­thing irreversible."

The rules we learn to live by,like the laws of Moses, similarlyfall into the same two groupings.Examples of modern apodicticlaws of behavior:

Never assume, especially whenthe contents of a suitcase are con­cerned.

Unplug the coffee maker if it ispast 5:00 and the secretaries aregone.

Think twice before sayingwhat's on your mind to the seniorpartner.

If your wife wants to sleep late,let her. Corrolary: If your husbandwants to sleep late, tell him to for­get it.

Modern day examples of cas­uistic behavioral precepts:

As a deadline draws nigh, theodds that the one thing needed tomeet the deadline will be missingincease exponentially toward1.000 to I.

To get a room at the Arlington inwhich the dumpster trucks cannotbe heard collecting garbage atdawn, one must specifically re­quest such and endure thechuckles of the desk clerk.

Elevators work better and fewerpeople ride them when you leaveearly for an appointment. Cor­rollary: You are ten times morelikely to receive simultaneous ur­gent calls when you're late for ameeting than at any other time.

A woman will lose her purse atthe most inconvenient time. and itwill always be located in a placewhere it had no business being inthe first place.

No doubt the General Assemblyhad the spirit of the law of Mosesin mind when it passed Act 34 of1969, which was expressly aimedat glue-sniffing. Apparently ourlawmakers deemed it wise. how­ever, to list a number of com­pounds and forbid all methods ofingestion.

Read the statute and I think youwill sleep better at night knowingit is unlawful to drink gasoline forthe purpose of inducing intoxica­tion without a doctor's prescrip­tion. Also, I would like to hearfrom anyone in a dry county whogets his prescriptions filled at aFina station.

Legislatures tread on dan­gerously humorous ground whenthey set out to prohibit a numberof things with one statute. Withroots in Pope's Digest, Ark. Stat.Ann. §41-3261 prohibits the bettingof money "or any valuable thingon any game of brag, bluff, poker,seven-up, three-up, twenty-one,vingtun, thirteen cards, the oddtrick, forty-five, whist, or at anyother game at cards, known byany name now known to the laws.or with any other or new name, orwithout any name ... ' While thestatute is apodictic, it led to a cas­uistic construction.

In 1884 the conviction of a manwho, with others, had "engagedin a game of freeze-out pocre,"was upheld. Each player wasgiven "a certain number of grainsof corn to be used in counting thegame," and it was agreed that thefirst one "froze out" (losing all hiscorn) would treat the others tocigars worth a nickel apiece.Wade v. State. 43 Ark. 77. Thecourt cited a Tennessee case inwhich, under a similar statute. aman was convicted of playing tenpins with the understanding thatif he lost he was "to treat to abottle of champagne."

Cheers! 0

April 1985/Arkansas Lawyer/57

Page 8: APRIL 1985

Comingof Age:

Women lawyersin Arkansas, Judith Rogers

By Annabelle Davis Clinton

1960-1984

Over 450 women became li­censed to practice law inArkansas between the years

1960 and 1984.' This figure demon­strates the coming of age forwomen lawyers in Arkansas.Three times as many women en­tered the legal profession in thelast twenty-five years as com­pared with the preceding fortyyear period (1918-1959) when onlyISO women were admitted to thepractice.' The majority (264) havebeen admitted in the last fiveyears (1980-1984).' Of the 380women lawyers presently in theactive practice of law in Ar­kansas. 227 are located in PulaskiCounty.'.

The years 1960-1984 saw a con­tinuation of firsts for Arkansaswomen in the legal profession: theHonorable Elsijane Trimble Roywas the first woman appointed tothe circuit bench (1966); in 1974 theHonorable Bernice Lichty Kizer be­came Arkansas' first elected

58/Arkansas Lawyer/April 1985

woman judge; the Honorable Elsi­jane Trimble Roy also became thefirst woman appointed to serve onthe Arkansas Supreme Court(1975) and the first woman ap­pointed United States DistrictCourt judge in Arkansas (1977).

Perhaps the best way to illus­trate the coming of age for womenlawyers in Arkansas is to presentthe personal stories of a represent­ative sample of women lawyerswhose range of professional ex­perience extends from two to 24years and from a small town fami­ly practice to a large law firmLittle Rock practice.

Judith Rogers

No women were admitted to thebar during the years 1957-1961. In1962. judith Rogers broke thedrought and became licensed offi­cially at the swearing-in cer­emony for new admittees held atthe Little Rock Club. an exclusive­ly male club at the time. job offers

were not the order of the day evenfor a lawyer who graduated sec­ond in her class from Indiana Uni­versity School of Law. Rogers en­tered into a space sharingagreement with attorney ByronBogard - 50010 of her gross incomeeach year in return for officespace. In the beginning her prac­tice was limited to a poor femaleclientele with mainly domestic re­lations problems. Rogers admitsthat she assumed a tough stancepartially as a result of her ownperception that the world outthere was hostile territory forwomen lawyers. Her reputationfor being pro-female lingered forseveral years, even after her prac­tice broadened into the areas ofprobate, bankruptcy, collectionand workers' compensation.Rogers recalls that the practice oflaw was "gentlemanly"; that is,that attorneys treated each othercourteously in matters such aspostponements. scheduling of de­positions, and in the sharing ofadvice and counsel. EventuallyRogers' law practice supportedthe purchase of abuilding. threefull-time secretaries and a MagCard 11. grossing over $100.000each year. [n [977. Rogers agreedto temporarily assume the posi­tion of juvenile judge for PulaskiCounty. After about three monthsof balancing a law practice andjuvenile Court. Rogers decided toclose down the law practice anddevote her energies exclusively to

A

Page 9: APRIL 1985

the juvenile system. Her tenure asjuvenile judge brought Rogers incontact with more people, morepain and more unsolvable prob­lems. In 1982, Rogers was electedto the Chancery bench in PulaskiCounty to serve out a remainingtwo-year term. In 1984 she was re­elected without opposition. JudgeRogers finds the chancellorship tobe another challenge for furtherprofessional growth.

Idalee R. Hawkins

Idalee R. Hawkins, a native ofTexarkana, went to law school forinsurance in case she ever had tobe sell-supporting, but not nec­essarily to pursue a legal careerimmediately. She was licensed topractice law in 1966 and in 1968began practicing law part·timewith her father and husband intheir family-owned law firm ofRaffaelli & Hawkins at Texar­kana, Texas. Hawkins' law prac­tice in her family's firm was ad­justed to coordinate with theraising of three children. Both as aresult of her own choice and theprevailing attitude that a womandid not litigate, Hawkins pursueda non-adversarial office practice ­examining abstracts, preparingwills and commercial contracts,probating estates, etc. In 1971. shewas appointed United States mag­istrate for the Eastern District ofTexas, which position she stillholds. On January I. 1985, she wasappointed U.S. magistrate for theWestern District of Arkansas. Herreal desire is to become a special­ist in family law - seeking solu­tions to the myriad problems en­countered by spouses, parentsand children in divorce andcustody matters.

Josephine Linker Hart

Josephine Linker Hart grew upon a farm outside of Russellville,Arkansas, graduated fromArkansas Tech in 1965, and joinedthe United States Army for servicein the Adjutant General's Corps.After four years in the UnitedStates Army doing quasi-legalwork. including court martial ex­perience while serving in Japan,

Idalee R. Hawkins

Hart enrolled in law school at theUniversity of Arkansas and gradu­ated in 1971. Although she had in­tended to eventually return to thearmy as a JAG officer, Hart de­cided to delay pursuing her legalcareer in the military and takeadvantage of an opportunity toclerk for the Honorable FrankHolt, associate justice of theArkansas Supreme Courl. In 1973,she again postponed returning tothe army and accepted an offer ofemployment by the firm nowknown as Highsmith, Gregg, Harl.Ferris and Rutledge in Bates­ville, Arkansas. Hart wanted to bein the courtroom; she acceptedappointments to represent indi­gents in criminal cases in order toget the courtroom experience. Infact. she accepted any type ofcase to get the trial experience.Alter one year with the law firm,she was made a junior partnerand alter three years, a full part­ner. Her practice now includescriminal defense, domestic rela­tion cases (including childcustody), insurance defense,workers' compensation. and someplaintiff's personal injury work.Hart's experience with the benchand bar has been positive. Shefound the Batesville bar to be ex­tremely supportive. In the finalanalysis, Hart concluded that herstatus as a woman lawyer wasneither an advantage nor a dis­advantage - she was just anothernew lawyer in town, the basic pre-

Josephine Linker Hart

mise being that you can do what­ever you want if you are willing towork.

Hillary Rodham Clinton

Hillary Radham Clinton's ex­perience may not be typical con­sidering her status as the Gov­ernor's wife, but otherwise herprofessional career is fairly repre­sentative of women in the largeLittle Rock law firms. Before join­ing the Rose Law Firm in 1977,Clinton taught at the University of

Editor's Note:

Annabelle Davis Clinton, ofLittle Rock, is a member of theWright. Lindsey and Jennings lawfirm. She is a former circuit judgeof the Fifth Division. Sixth JudicialDistrict and is in her third term assecretary of the Arkansas BarAssociation. Clinton attendedBates College of Law and the Uni­versity of Arkansas. receiving aJ.D. in 1977. She is a former mem­ber of the Houston Law Review,and served as comments editor forthe Arkansas Law Review.

"Coming of Age, Women Law­yers in Arkansas 1960-1984" is thefinal in a series of three articlescelebrating the lOOth anniversaryof women in the law in Arkansas.

Our thanks to Clinton, FrancesRoss and Jacqueline S. Wright fortheir research into the past ofArkansas' women lawyers.

April 1985/Arkansas Lawyer/59

Page 10: APRIL 1985

Hillary Rodham Clinton

Arkansas law school in Fayette­ville. As an adjunct to her teach­ing duties she instituted a legalclinic for the representation of in­digents in domestic relations,landlord-tenant and credit mat­ters. One particularly noteworthycase involved criminal chargesagainst members of a religiouscult for the "unlawful burial" of achild. As an associate at the RoseLaw Firm, she handled a varietyof matters ranging from anti-trust.securities and product liability lit­igation to adoption and custodycases. She was actively involvedin overturning the state's rule thatbarred foster parents from adopt­ing their foster children. Becauseof the demands that domestic re­lations cases entail. Clinton haslimited that aspect of her practiceand concentrated on commerciallitigation. According to Clinton,she joined the Rose Law Firm todevelop trial practice skills andfound among her fellow lawyerssupport. collegiality and highstandards. The firm also placed apremium on independence, allow­ing its members to pursue their in­dividual interests such as her ser­vice as a board member and chairof the National Legal Services Cor­poration. In 1979, Clinton becamethe firm's first woman portner andthe first in a large Little Rock lawfirm. Since then her practice hasfocused on complex matters thatdemand concentrated periods ofwork such as takeover challengesand suits for immediate injunctive

60IArkansas Lawyer/April 1985

Georgia Elrod: Noaccess toI good 01' boy

networkrelief. This work also fits herschedule demands as First Lady.Both as a woman lawyer and asthe Governor's wife, Clinton hasbeen the object of curiosi ty byboth bench and bar. She also hashad to consider whether or not herpolitical affiliation might presentany conflicts of interest. As in thecase of Josephine Linker Hart,being a woman has not been asignificant factor in Clinton's per­ception of her professional career.

Georgia Elrod

For a number of years, GeorgiaElrod was the only womanattorney in Benton County. Uponadmission to the bar in 1974, Elrodwent into practice with her hus­band and father-in-law in SiloamSprings. Over the years her prac­tice has tended to concentrate inchancery court, in the areas ofdomestic relations, wills, trustsand real estate. Elrod has little in­terest in trying cases before a juryand in fact believes that hertalents are better used in the per­son-ta-person communicationsgeneric to chancery court prac­tice. Elrod perceives the struggleto be one of youth and inexperi­ence rather than gender. Shereadily admits that the establish­ment of a small town practicewould have been significantlyharder had she been without con­tacts and family in the local com­munity. Elrod has felt nodiscrimination by either thebench or bar. Sometimes a fellowlawyer will comment that she isthe best-looking lawyer in thecounty, which Elrod merely attri­butes to a particular style of com­munication that is not intended tobe demeaning. She does not getas many male clients with busi­ness problems because as awoman in a small town she does

;' ,-~-ir\J J ~Georgia Elrod

not have access to the 'good 01'boy network, such as Rotary Club.The client's respect for her pro­fessional opinion is an individualmatter, with little or no relation toher being a woman. However. onone occasion a new client ap·peared for an appointment andwas chagrined to learn that Geor­gia was not George! Elrod findsher practice fulfilling and feelswell-accepted in the community.

Andree Roaf

Andree Roof's experience in thelegal profession brings into focusfactors which are not present inthe experience of most womenlawyers. After nearly 12 years as aresearch scientist, Roaf. who isfemale and black, decided to rad­ically change her professionalcourse. She enrolled at the Uni­versity of Arkansas School of Lawat Little Rock and began to Com­mute from Pine Bluff, where sheresides with her husband and fourchildren. Upon graduation fromlaw school in 1978, Roaf's initialquest for employment focussed onPine Bluff law firms engaged incommercial law practice - withoutsuccess.' In 1979 Roaf joined thelaw firm of Woodson Walker &Associates in Little Rock, becom­ing the third member of that firm.The understanding was that herpractice would be devoted to com­mercial matters with some pro­bate and domestic relations prac-

Page 11: APRIL 1985

lice. Since the firm had littlecommercial practice, Roaf beganthe task of developing the ex­pertise necessary to handle com­mercial matlers. Roaf has beenimpressed with the assistance of­fered by senior members of theLi ttle Rock bar in response to herrequests for advice and counsel.Occasionally a client will expressdiscomfort with the idea of beingrepresented by a woman lawyer.Six years later the goal of es­tablishing a full service law firmis closer to becoming a reality.Roaf devotes 50"10 of her lime to thecommercial practice. The effort toattract more corporate clients, asopposed to individual clients, isproving to be successful. Com­pared to her experience as a re­search biologist with limitedhuman contact in the laboratory,Roaf finds the law practice to bemore rewarding - offering a great­er opportunity to help peoplesolve their problems.

Andree Roaf

10 Ann Compton Maxey

The most junior member of thisrepresentative sample has been

Jo Ann Compton Maxey

practicing law for less than threeyears. )0 Ann Compton Maxey di­rected the funding activities forthe Arkansas Community Found­ation and clerked for the LittleRock law firm of Kaplan. Brewer &

SASCOURT RULES1985 Edition

Or call toll-free 1-800-446-3410.

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A publishing subsidiary of I~For customer service contact:

ALLIN R. JONESP.O. Box 1306

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$27.50*Appx. 900 pages, softbound, replaced annually© 1985, The Michie Company

Arkansas Court Rules, 1985 Editioncontains, in one convenient volume, allArkansas court rules with annotations. Up­to-date through February 1, 1985, it also in­cludes federal circuit and district courtrules. Each set of rules is indexed separate­ly and official commentary is carried whereapplicable.

April 1985/Arkansas Lawyer/6l

Page 12: APRIL 1985

*1984-85 Arkansas Women Attorneys

5

""'"3

-- ""

1 5 1 3f~'OfO

6 2

Total:380

'Statisticsbased on1984-85 AttorneyRoster fromArkansas LegalDirectory.

ARKANSAS

Miller, P.A.. while attending thenight division of the University ofArkansas School of Law at LittleRock. The clerkship experiencewith the Kaplan firm eventuallyevolved into full-time employ­ment as an attorney after Maxeygraduated from law school in1982. Federal court has beenMaxey's turf in the context of civilrights litigation and the hotly con­tested Little Rock School Districtconsolidation case. She is also be­ginning to develop a generalpractice some domestic re­lations. probate and commercialmatters. As with most newly­licensed attorneys. Maxey has fol­lowed the maxim: prepare well tobalance out lack of experience.

621Arkansas Lawyer/April 1985

She echos other women lawyersin observing that her experiencewith other members of the bar hasbeen no different from that of anyother new attorney. Male clientshave been watchful in evaluatingMaxey's professional compe­tence. In contrast. Maxey sensesthat she has to work harder to con­vince female clients that she iscapable. which may be merely areflection of the female client'slack of confidence in herself.Maxey has also noticed that somewomen lawyers try to be toostalwart. possibly in an effort topresent an impression of strength.In the second year of her practice.Maxey joined the increasing num­ber of women lawyers who are

Female Participationin ABA Sections

Economics ofLaw Practice 10"10 (69m

Family LawSection. . . . . . . . . .. 13% (234130)

Labor LawSection. . . . . . . . . . . .. 13"10 (69/9)

Probate LawSection. . . 6% (l68!IO)

Real EstateLaw Section. . 5% (153m

Savings & LoanSection. . . . . . . . . . . . . . 0 (44/0)

Section ofTaxation ... 3% (148/4)

Workers' CompensationSection. . . . .. 5% (207/10)

Page 13: APRIL 1985

Arkansas Supreme CourtLicensed Female Attorneys

1960-1984

1960 1961 1962 1963 1964 1965 1966 1967 19680 0 1 1 1 4 1 3 1

1969 1970 1971 1972 1973 1974 1975 1976 19772 2 5+1? 6 10 5+1? 20+1? 25+1? 27+1?

1978 1979 1980 1981 1982 1983 1984 *Totals: -46+3? 63+1? 59+1? 52 29+2? 65+2? 59+2? 487+ 16?

*The 16? total represents thoseattorneys whose gender cannot be determined.

balancmg motherhood with thepractice 01 law. Since late nightand weekend work can no longerbe the rule. Maxey strives lorgreater elliciency and produc­tivity during regular workinghours. Professional organizationwork has been deferred for theforeseeable future. With the ac­ceptance that she cannot be thebest lawyer. wife and mother.Maxey endeavors to do a good joband is proud of her contribution tothe legal system.

What conclusions can be drawnabout the luture for women law­yers in Arkansas? The ground­work laid by women licensed topractice law between 1918 and1959 has made it poSSible for thoseentering the legal professionsince 1960 to reap the rewards ofunlimited opportunity. Unlimitedopportunity brings hard decisionsabout career. marriage. children ­a balancing ellort that defies per-

feet answers and necessarily re­sults in compromise.

There are still more firsts to beachieved in Arkansas: election ofa woman to the (I) circuit courtbench; (2) Arkansas SupremeCourt; (3) Arkansas Court of Ap·peals; and (4) presidency of stateand local bar associations. just toname a few. But the real task isnot in the achievement of firstsbut in what women have to oller tothe legal prolession in its ellort toresolve disputes without resortingto violence. Women in this societyhave learned to be supportive.nurturing, and sensitive to thefeelings of other human beings.The challenge to women lawyersis to integrate those interpersonalcommunication skills into thepractice of law. and thereby makethe resolution of legal disputes ahealing. rather than divisive. pro­cess.

o

FOOTNOTES'Clerk of the Arkansas SupremeCourt. Register of Attorneys li­censed to practice law inArkansas.

, Clerk of the Arkansas SupremeCourt. Register of Attorneys li­censed to practice law inArkansas.

, Clerk of the Arkansas SupremeCourt. Register of Attorneys li­censed to practice law inArkansas.

• The Arkansas Legal Directory.1984-1985. Women attorneys list­ed in the Arkansas Legal Direc­tory were designated as being inthe "active practice of law." Byway of caveat. these statisticsmay include some errors in thedetermination of gender.

, According to the Arkansas LegalDirectory. 1984-1985. sevenwomen are presently in the ac­tive practice of law in JellersonCounty. Arkansas.

April 1985/Arkansas Lawyer/63

Page 14: APRIL 1985

IN

MEMORIAM

William B. Putnam

William B. Putman III, aged 61.of Fayetteville, died Thursday, De­cember 13, 1984.

A lecturer at the University ofArkansas at Fayetteville School ofLaw and a criminal defenselawyer. Putnam was a member ofthe W. B. Putnam law firm.

He was appointed a special jus­tice to the Arkansas SupremeCourt on different occasions in1968, 1970 and 1971. and hadserved since 1962 on its Com­mittee on Model Jury Instructions.

In September, Putman was in­ducted as a Fellow in theAmerican College of Trial Law­yers.

He graduated with honors in1953 from the Fayetteville lawschool. where he served as editorin his senior year of the ArkansasLaw Review.

A native of Springdale, Putnamwas the only child of the lateWilliam Benjamin Putman II andMaxine Corbin Putman. He wasgraduated from Fayetteville HighSchool and entered the University

64/Arkansas Lawyer/April 1985

of Arkansas to study journalism.He later switched from journalismto language and volunteered forthe Army in World War II.

He was on the first convoy intoNormandy after the D-Day inva­sion and served there as an inter­preter until he was wounded in1944. He received the Purple Heartand three Battle Stars for his mili­tary service. He also served as aninterpreter for the chief of the Ger­man Civilian Police until De­cember 1945 and, in 1948, went towork for the Stanolind Oil andGas Company in Columbia,South America.

Between his military serviceand his position as an interpreterfor the oil firm, he completed hisbachelor's degree in journalismand language at the University.The Arkansas Gazette reportedthat although he said in 1977 thathe "remained a journalist atheart," he entered the Fayettevillelaw school in 1951 and completedhis degree in 27 months.

Putman served as a UnitedStates commissioner from 1954-61.was a Washington County elec­tion commissioner from 1957-61and began lecturing at the Fay­etteville law school in 1956. Hewas a member of the ArkansasBoard of Law Examiners from 1959­64.

He was considered an expert onAmerican Western art and hadone of the largest collections inthe state.

A 31-year member of theArkansas Bar Association, Put­man served on its continuinglegal education, judiciary, un­authorized practice of faw, legaleducation and judicial nomi­nations committees.

He was a former member of theArkansas Bar Foundation Board ofDirectors and was a former pres­ident of the University of Arkan­sas Law School Foundation andWashington County Bar Associa­tion.

He was a fellow of the Inter­national Society of Barristers, amember of the American Judic­ature Society, Phi Alpha Delta,Omicron Delta Kappa and SigmaAlpha Epsilon.

Survivors are his wife, EstherWhite Putman of Fayetteville; ason, William Putman IV of Cham­pagne, Ill.; and, two hal/­brothers. Dr. Robert Dickson ofPueblo, Colorado. and James F.Dickson of Fayetteville.

Edgar A. Woolsey

Edgar A. Woolsey Jr.. aged 48,of Clarksville. died Saturday. Jan­uary 26. 1985.

The senior partner in the Clarks­ville firm of Woolsey and Wilson,he had served as Johnson Countydeputy prosecuting attorney, asjuvenile judge and as Clarksvillecity attorney.

Born north of Ozark, Woolseygraduated from Ozark HighSchool in 1954 and attendedArkansas Polytechnic College ona working scholarship operatingan experimental farm. After study­ing agriculture he transferred tothe University of Arkansas atFayetteville where he received abachelor of arts degree in 1958. In1960 he received a bachelor oflaws degree which was replacedwith a juris doctor degree in 1969,

While in law school. Woolseywas elected president of theArkansas Law Students' Associa­tion, marshal of Phi Alpha DeltaLegal Fraternity and assistantattorney general for the Uni­versity.

Woolsey was licensed in 1960 topractice law in the state and fed­eral courts. He practiced law threeyears in Harrisburg.

A 24-year member of theArkansas Bar Association, Wool­sey was also a member of theJohnson County and AmericanBar Associations.

Page 15: APRIL 1985

He was a member of the Boardof Directors of the Christian CivicFoundation of Arkansas and theArkansas Basin Foundation, di­rector of the Ozarka three-statecommission, member of the John­son County Chamber of Com­merce and a member of theMid-Arkansas River Valley Re­gional Planning Commission. Hewas president of the JohnsonCounty Bridge Association and co­chair of the Johnson County PeachAssociation.

Woolsey was raised to the sub­lime degree of master mason in1969 in Franklin Lodge No, 9where he was master in 1976 andlater secretary, He became a cer­tified lecturer in 1973, certified in­structor in 1974 and served asdeputy district custodian of Dis­trict 25 for four years,

He raised more than 300 can­didates to the degree of mastermason. He was a dual member ofOzark Lodge No. 79, a member ofClarksville Royal Arch ChapterNo. 49, Orsiris Council No.5 Royaland Select Masters and JacquesDemolay Commandery No. 3 inFort Smith.

Woolsey was an officer of theTrinity Conclave, Red Cross ofConstantine in Fort Smith, theWestern Arkansas Consistery, aknight commander of the Court ofHonor, orator of the Rose CroixChapter, past-patron of Clarks­ville Chapter No. 172, Order of theEastern Star, and served as thegrand master of the M,W. GrandLodge of Free and Accepted Ma­sons of Arkansas.

He was a member of the FirstUnited Methodist Church mClarksville and served on itsadministrative board. He wasassociate director of Laity for theFort Smith District of the NorthAmerican Conference.

Woolsey was a member of theBoard of Directors of the WesternArkansas Area Council, BoyScouts of America, served on theMt. Magazine District Sub­committee and was a member ofthe Order of the Arrow of the Na­tional Brotherhood of Scout HonorCampers.

Survivors are his wife, Jacque­lene Woolsey of Clarksville; adaughter, Victoria Jane Woolseyof Clarksville; two sons, DavidAllen Woolsey of North Little Rockand Paul Edward Woolsey of

Searcy; his parents, Mr. and Mrs.Edgar Woolsey Sr. of Ozark, and asister, Mona Beth Brown of Ozark.

David Wilson Brandt

David Wilson Brandt. aged 36,of Fayetteville, died Thursday, De­cember 20, 1984.

A member of the Bumpass andBrandt law firm in Fayetteville,Brandt was the WashingtonCounty coordinator for GovernorBill Clinton's 1984 re-election cam­paign.

Born in Cape Girardeau, Mo..Brandt was the son of the lateRichard and Edna Brandt.

He earned a bachelor's degreein political science and a juris doc­torate degree from the Universityof Arkansas. He received a masterof laws degree in taxation fromSouthern Methodist University.He was admitted to the bar in 1974.

Brandt was formerly a trust offi­cer for First State Bank of Spring­dale, He was president ofC,A.R.E. Inc., a nursing home andhealth care company.

Brandt was a member of theWashington County and Amer­ican Bar Associations and St.Paul's Episcopal Church of Fayet­teville.

Survivors are his wife, JoanGreene Brandt; a son, WilsonDavid Brandt, both of Fayette­ville; and, a brother, Joe Brandt ofEdina, Mo.

A. Jack King

A. Jack King, aged 55, of Ozark.died Thursday, November 29, 1984.

King was a former Ozark muni­cipal judge and Franklin Countyjuvenile judge and an Ozarkfarmer.

He was a retired lieutenant col­onel in the United States AirForce, with 25 and one-half yearsof service.

The son of Andrew J. and MyrtisYeartha King, he was member ofthe Arkansas Bar Associationsince 1976.

King was a member and chair­man of the board of First UnitedMethodist Church, chairman ofthe board of trustees of Turner Me­morial Hospital and board mem-

ber of Franklin County FarmersAssociation.

Survivors are his wife, NevaBelcher King; two daughters, Hil­lary Marie and Haley Noel; hismother, Myrtis King, all of Ozark;and, two sisters, Lucille KingSowell and Reba King Irons, bothof Fort Smith.

Wayne Jewell

Wayne Jewell. aged 74, of El Do­rado, died Wednesday, November28, 1984.

A native of Greene, Iowa, Jewellpracticed law in El Dorado formore than 51 years.

He was a member of theArkansas and Union County BarAssociations.

He was a life member ofKiwanis International, served aspresident of the EI DoradoKiwanis Club in 1938 and as sec­retary of the MO-KAN-ARK districtof Kiwanis International in 1939.He held a perfect attendance re­cord for a number of years at thelocal Kiwanis Club.

King was one of EI Dorado's firstEagle Scouts.

Survivors are his wife, Mrs. Net­tie Hunt Jewell of EI Dorado; fourdaughters, Sylvia Jewell of Jun­eau, Alaska, Helen Decker of SanLeandro, Calif.. Rebecca Hill ofNapa, Calif., and Carla Jewell ofNew Jersey; a son, James Jewell ofEI Dorado; and, two grand­children. 0

HEIRS lOCATED

Missing and unknown heirs idenlified and lo­cated by licensed invesligator with 15 years ofgcneOllogical and search experience. All feescontingent upon successful search.

Carol BriggsRR#2, Eldridge, Iowa 52748

(319) 285-4509

April t985/Arkansas Lawyer/65

Page 16: APRIL 1985

Standing in Iront 01 Chancellors Hall 01 Trinity Episcopal Cathedral in Little Rock are (from lell) Robert D. Ross.Marilyn Mitchell. Frances Mitchell Ross. Virginia Mitchell. John Thorpe Williams and Elizabeth Williams.

William Starr MitchellJohn Thorpe Williams

By Robert L. Brown66/Arkansas Lawyer/April 1985

Page 17: APRIL 1985

Generations in the Law:A Series

Photo by Willie Allen

Their livesintertwinedlike figureeights

William Starr Mitchell. de­ceased on November 25, 1981. andJohn Thorpe Williams practicedlaw in different Little Rock lawfirms during their heyday (Chown­ing, Mitchell. Hamilton & Burrowin the case of Mitchell; Smith,Williams, Friday & Bowen in thecase of Williams) and were not re­lated or close social friends. Yetthe two men typify a generation ofsuccessful lawyers and, more im­portantly, a style of practicing lawthat has inspired numerous suc­cessors to the practice and evensome of their peers. In a profes­sion often perceived as composedof overly zealous desk-poundersor clever finnaglers, the two men'scareers are examples of integrity.competence, humility, dedicationto community, and compassion.William H. Bowen, a former lawpartner of John Williams and nowchairman of the Board of FirstCommercial Bank of Little Rock,makes the case succinctly: "Ifmore lawyers like Will Mitchelland John Williams predominated,the profession would be viewedmuch more favorably."

Born two years apart. their liveslike figure eights intertwined re­peatedly. For years their lawfirms occupied adjoining floors inthe Boyle Building in downtownLittle Rock. They were both pres­idents of the Arkansas Bar Foun­dation during the watershedperiod when the purchase of theland and construction of the BarCenter and Law School next to theCamelot Hotel were being struc­tured. They served for years onmajor Little Rock bank boards.Most significantly, both men havegiven tirelessly of their time andefforts to the Bar, their com­munity, and their church whichthey shared in common - TrinityEpiscopal Cathedral in LittleRock. In recognition of their count­less hours of devoted service aschancellors, or chief legal advi­sors, to the Episcopal Diocese ofArkansas, Trinity Episcopal Par­ish and the Diocese recently re-

named a building on the Cathe­dral grounds Chancellors Hall inmemory of William Starr Mitchelland in honor of John T. Williams.

There are other connectingpoints in their lives as well. Lawpartners and friends of the twomen assign them the same workhabits and personality traits: gen­tle, scholarly, meticulous. ethical.low key, slow to anger but quick todefend what's right. and an in­tense interest in and dedication tothe betterment of their fellow man.

When contemporaries of WillMitchell are asked about the manand his legal career. he is oftendescribed as "too good to be true.""If the devil walked into this roomtoday, Will Mitchell would havesomething nice to say about him,"former law partner W. P. Hamiltonwas fond of saying. Others main­tain that Will Mitchell missed histrue calling - "he would have beena magnificient minister," theysay. Born in Little Rock in 1907,Will Mitchell had his origins inboth publishing and business. Hisgrandfather, James Mitchell. hadbeen editor of the ArkansasGazette and an owner of theArkansas Democrat. He attended

Editor's Note:

Robert L. Brown is a member ofthe Little Rock law firm of Harri­son and Brown, P.A.

He was formerly in general lawpractice with the Chowning,Mitchell. Hamilton and Burrowlaw firm, now defunct.

Brown is a former administra­tive assistant to Congressman JimGuy Tucker, former legislativeassistant to Senator DaleBumpers, and former legal aide toGovernor Dale Bumpers. He is aformer deputy prosecuting at­torney in the 6th Judicial District.

He received an LL.B. from theUniversity of Virginia in 1968 andis the author of several previousarticles in The Arkansas Lawyeron "Lawyers in the Governor's Of­fice" and "Lawyers As Law­makers."

April 1985/Arkansas Lawyer/67

Page 18: APRIL 1985

public schools in Little Rock, Car­ver Military Academy and gradu­ated from Princeton University,where he was known as Bill, in1929. His Grand Tour alter collegewas not limited to Europe but em­braced the entire world. He trav­eled with a friend on a budget of$1,000 and when his money ranout he had to work his way homeacross the Pacific Ocean in the en­gine room of a steamer.

Following Princeton and histraveling adventures, he beganhis legal studies at the Universityof Arkansas School of Law andthen entered Yale Universitywhere he received an LL.B. degreein 1933 and roomed with Henry W.Gregory, the prominent Pine Bluffattorney. He then came home andafter being admitted to theArkansas Bar, he practiced withthe law firm of Rose, Hemming­way, Cantrell and Loughboroughin Little Rock. In 1938, he marriedVirginia Grobmyer of Forrest City,became an associate in the firm ofMoore, Burrow & Chowning whicheventually became Chowning,Mitchell, Hamilton & Burrow.

There was not much that WillMitchell did not do for the BarAssociation or for his community.Indeed, he was so dedicated andwilling to help and so thorough inhis work, he was often called on togive more than his fair share. Itwas commonly accepted thatwhenever Will Mitchell didsomething, he gave 1.000 percentwhether it be founding theArkansas Bar Foundation in 1959,president of the Arkansas BarAssociation which he was in 1960­61. president of the Chamber ofCommerce for Little Rock whichhe was in 1963, chancellor of theDiocese of Arkansas which hewas from 1955 to 1964, director ofUnion National Bank, or leader ofthe former Community Chest. Healso headed the Justice BuildingCommission and worked for anamended judicial article for theState Constitution and for an in­tegrated Bar Association.

During his tenure in leadershipfor the Bar Association and Cham­ber of Commerce, he was re­nowned for trying to attend everycommittee meeting. Unlike somewho seek leadership positions toadvance their careers. former lawpartner Lawrence B. Burrow saysMitchell did just the opposite. "He

68/Arkansas Lawyer/April 1985

studiously avoided any appear­ance of a conflict of interest andwould have been undone if a con­flict had been suggested," saysBurrow. Burrow adds, "Will Mitch­ell believed in the notion ofavoiding the appearance of con­flicts before that notion was popu­lar." "Will Mitchell's prioritiescan be summed up easily," saysW. P. Hamilton. "First, his family,then his church and the Bar in thatorder."

There is no question that WillMitchell's finest hour was duringthe volatile school desegregationcrisis in 1959 when he was cam­paign chairman of the Committeeto Stop this Outrageous Purge(STOP), a group designed tothwart the firing of Little Rockschoolteachers and principals be­cause of their associations and torecall segregationist members ofthe Little Rock School Board re­sponsible for those firings. At thetime, the Little Rock PublicSchools had been closed by legis­lative act and Little Rock wasunder the microscope of an inter­national media. The STOP cam­paign under Mitchell's directionrepresented a turning point in thedesegregation crisis and set thestage for the peaceful integrationof the Little Rock Public Schools.

There were other high points inWill Mitchell's legal career. Onecertainly had to be his introduc­tion of Vice President Lyndon John­son at the annual meeting of theArkansas Bar Association in HotSprings in June, 1962. He workedfor days on the introduction and itwas so detailed and full-blown inits wit and illustrations that John­son subsequently referred to it inWashington repeatedly and of­fered Will Mitchell a position onthe newly formed United StatesCivil Rights Commission - a posi­tion Mitchell refused to take.

When the American Bar Associ­ation met in London during EdWright's tenure as president inJuly, 1971, Will Mitchell waschosen to read the Old Testamentlesson from the lectern at a ser­vice at St. Paul's Cathedral. Heread from Leviticus. Appropriate­ly enough, the lesson was onloving thy neighbor.

And then for some eight yearshe joined a group of friends includ­ing Chancery Judge Bruce Bullion

in editing "Arkansas Bylines"which was a mimeographed bul­letin to Arkansans in the armedservice and particularly in VietNam and which contained a tele­scoped version of news storiesabout Arkansas. At the time Mitch­ell described it as a morale build­er: "It was started when there wasso much criticism of the war andwhen relatives of servicemenwere being harassed. We wantedto do something to offset this."

Former Bishop of the EpiscopalDiocese of Arkansas, Robert R.Brown, worked closely with Mitch­ell during the school crisis and re­fers to him as a "perfectionist."Others type him as thorough to afault and as a man who did tbingsin excruciating detail. Often,there was no way he could bill aclient for the time and effort hehad put into a case. On one occa­sion his son, Jim. who is a lawyerand probate judge in Augusta,Maine, recalls him attending afield survey in Scott, Arkansasover a few feet of land. Jim raisedthe question of how he couldcharge for the work involved. Hisfather answered simply: "[ can'tcharge for it." His modesty andhumility were perhaps best illus­trated by the extremely difficulttime he had in billing clients.There is also the story that whenWill Mitchell's tum came to bepresident of the Arkansas BarAssociation, he had not preparedsomeone to place his name innomination. Undoubtedly, he wasembarrassed by the act, andfriends had to scramble to do so atthe last minute.

He was a man of warm humor­under all circumstances - whichmade him much in demand as amaster of ceremonies. When hos·pitalized for his first heart attack,the doctor entered his room andadvised him that he was going tocheck his pulse. Will Mitchell re­sponded: "Doctor, I am sure gladyou are not a lawyer. A lawyerwould have said: 'I'm going tocheck your pulse, if any.' ..

John Thorpe Williams was bornon March 8, 1909 in Lonoke,Arkansas where his father was agrocery merchant. His father, Car­roll A. Williams, had migratedfrom Shelbyville, Tennessee; hismother, Mary Thorpe, from PrairieGrove in Washington County,

"

Page 19: APRIL 1985

Arkansas.Growing up, Williams had

three brothers and four sisters andrecalls times as being rough. De­spite the economic straits, he at­tended Lonoke High School andgraduated in 1927 as valedicto­rian of his class. He then came toLittle Rock where he worked at theRock Island Railroad in variouscapacities while attending Robin­son Business College and subse­quently the Arkansas Law School.He recalls that during these hardtimes there was a whole group ofattorneys who still practice lawwho attended the Arkansas LawSchool. He earned his LL.B. in 1931and was admitted to the ArkansasBar in 1933. He didn't begin thepractice of law right away be­cause he had a job and they werehard to come by.

During the early thirties heshuttled back and forth betweenwork with the Rock Island (trafficmanager) and with Standard OilCompany of Louisiana (sales), butin 1936 he broke away from busi­ness and joined then ProsecutingAttorney Fred A. Donham's staffwhere Pat Mehaffy, later chiefjudge of the Eighth Circuit U.S.Court of Appeals, worked as chiefdeputy. Williams worked as adeputy prosecuting attorney andas a grand jury reporter for threeyears and in 1939 joined the staffof United States District JudgeHarry J. Lemley as secretary, lawclerk and court reporter. At thetime, Judge Lemley was a rovingjudge for the Eastern and WesternDistricts of Arkansas with hisbase in Texarkana, which iswhere Williams moved and livedfor ten years. While there, he metElizabeth Green of Hope and theywere married in June of 1941.

Following his work with JudgeLemley, John Williams served aschief assistant attorney general inIke Murry's office in 1949 and in19SO joined the respected law firmof Daggett & Daggett in Mariannawhere he practiced until 1952when he joined Pat Mehaffy andWilliam J. Smith in the formationof a new law firm - Mehaffy, Smith& Williams, the predecessor ofwhat is now Friday, Eldredge &Clark in Little Rock. In that firm,Williams specailized as districtattorney and then assistant gen­eral counsel for the Missouri Pacif­ic Railroad Company and counsel

for the Little Rock Housing Author­ity and for the State Highway De­partment in which capacity hehandled land condemnation liti­gation. Later, the State HighwayDepartment was to develop itsown in-house legal staff, a devel­opment which John Williamschampioned and helped to imple­ment.

In addition to his service aspresident of the Arkansas BarFoundation and as a member ofthe Board of Directors of First Na­tional Bank of Little Rock from1963 to 1982, John Williamsheaded the State Legislative Com­mittee of the Chamber of Com­merce for Little Rock in 1963 and1964. Perhaps he is proudest ofbeing a moving force behind thebuilding of the Good ShepherdEcumenical Retirement Center inLittle Rock which can house 280residents and where he hasserved in numerous capacitiessince its inception. He currentlyserves as the Center's chairman ofthe Board. "He is always thereand always available with infor­mation, It says lawyer DianeMackey, who also serves on theBoard.

His former law partner, WilliamJ. Smith, describes Williams as"one of the finest gentlemen I everknew." "We were partners forthirty years and never had a crossword," Smith adds. "He is a greatChristian and I think he has dem­onstrated that. He has a high stan­dard of ethics as a lawyer whichthrough his own practice hepassed on to younger lawyerswho worked with him. Indeed, hewas a mentor for a number oflawyers in the firm."

John Williams' religious con­victions were "demonstrated inhis daily activities," according toSmith. "He is a man who has afine command of the English lan­guage. He does not resort to pro­fanity to stress a point as manypeople do."

Since 1974 when John Williamsbecame counsel to his law firm,he has kept office hours, butworked three to four hours a dayon matters for the EpiscopalDiocese of Arkansas. The Bishopof the Episcopal Diocese, HerbertA. Donovan, describes Williamsas having "0 clear cut sense ofwhat's right legally and morally.But there is something else that al-

ways comes through," Bishop Don­ovan goes on, "and that is his pas­toral concern for people. He has amarvelous ability to care aboutpeople."

There is not much that JohnWilliams has not done for hischurch. He has served as pres­ident of the Trinity Parish laymen,been delegate to at least four na­tional conventions. served as se­nior warden for Trinity Cathedralon three occasions, headed fundraisers, and led search com­mittees for the selection of a bish­op and dean, just to name a few.Whether it be negotiating long­term financing or giving advice ona personal crisis. Bishop Donovandescribes John Williams as an in­valuable counselor and rock ofsupport. He is a man who knowshow to get things done, quietlyand effectively.

Dean Joel Pugh at Trinity Cathe­dral says Williams not only givesadvice, "but helps you carry thatadvice through." And then there ishis common sense. "A part of thatis knowing the reali ties and nottrying to get around them," saysPugh. "John and I were once at ameeting where a discussion wasmade and someone asked if thediscussion was to be kept a se­cret. John said, 'Don't two peopleknow it? Of course it's not a se­cret.· "

Other members of Williamsfamily have had associationswith a legal career. His sister,Beulah Williams, worked in HotSprings as a legal secretary forthe law firm of Morris & Barron.But she admits the highlight of hercareer was her work with thenSenator Harry S. Truman in Wash­ington on Truman's War Effort In­vestigation Committee duringWorld War 11. His brother, ThomasD. Williams, was admitted to theArkansas Bar in 1935, but subse­quently joined the Army andmade the Army his career. An­other sister, Ethel Williams Car­penter, worked for United StatesDistrict Judge Thomas C. Trimblewhen he was in private practice inLonoke.

William J. Smith, in contemplat­ing both men, sums it up nicely:"When you soya gentlemen hashumility, compassion, and in­tegrity, that's about it. and that'swhat I'd say about both of them."

oApril 1985/Arkansas Lawyer/69

Page 20: APRIL 1985

Leake·lngham Building in Camden.70/Arkansas Lawyer/April 1985

Photo courtesy 01 Arkansas HistoricPreservation Program

Page 21: APRIL 1985

HistoricSurroundings:

An infinite variety of

law offices' styles and

qualities

As long as there have beenlawyers there have been law of­fices. Like lawyers themselvesthe offices' styles and qualitieshave had an almost infinite vari­ety and have reflected their sur­roundings. From themid-nineteenth century to thepresent law offices have playeda prominent role in defining ourdowntowns, built as they fre­quently are near the center of acity with quick access to courts,libraries and other professionalconcerns.

In recent years many lawyershave looked to older structuressurrounding and in their down­towns as possible office space.In addition to good locationthese historic structures frequent­ly offered high quality and dis­tinctive space at relatively lowcost. The Arkansas Historic Pres­ervation Program (AHPP) hashad the pleasure of workingwith lawyers, architects and de­velopers in planning and execut­ing many of these projects whilealso working with other groupsthat have taken what used to belaw offices and turned them tonew uses.

Among the earliest buildingsconstructed for law offices thatremain in Arkansas is the Leake­Ingham building in Camden.Constructed about 1850 thisbuilding, which has beenmoved. stood for over a hundredyears at the corner of Wash­ington and Harrison streets inthe heart of Camden. Mr.William W. Leake, a prominentCamden attorney, built it. Hehad at least three different part­ners in his practice there. TheClassical style of this smallbuilding gave it a dignity appro­priate to its use and others. By1866 Leake had rented it to theFederal government as officesfor the Freedmen's Bureau andlater as a Government Land Of­fice. The cost of construction isnot known but records do showMr. Leake paying a $16.00 pre­mium on a $1.000 fire insurancepolicy. In 1906 the Camden Li­brary Association purchased thebuilding for $1.100 and it hasserved since as a library. Inaddition to carrying the name ofLeake the building name recog­nizes Mr. and Mrs. H. M. In­gham who made substantial con-

tributions to the purchase andconversion of the building.

A little farther south is theKing-Whatley building in Lewis­ville constructed in 1902 as abank. Lewisville was thriving asa county seat in cotton-growingcountry with the railroad run­ning through. By 1919 the bankhad moved and David LatimoreKing acquired the building. It re­mained a law office ac­commodating the practice ofKing and his son-in-law. GeorgeWhatley until about 1960. Kingwas prominent in legal and po­litical affairs of southwest

Editor's Note:

Jacalyn Carfagno, of LittleRock, is a planning specialistwith the Arkansas Historic Pres­ervation Program, a division ofthe Department of Arkansas Nat­ural and Cultural Heritage, andis responsible for public re­lations, gran ts and generaladministrative concerns. Sheholds a B.A. from the Universityof Arkansas at Little Rock and re­ceived the Booker T. WorthenAward for Outstanding HistoryGraduate.

By Jacalyn CarfagnoApril 1985/Arkansas Lawyer/71

Page 22: APRIL 1985

LICON SERVICES, INC.10825 Financial Centre Parkway

- Suite 400Little Rock, Arkansas 72211

Telephone No. 224-6361 (501)

Specializing in background, location ofwitnesses, interviews, and other generalinvestigative work for attorneys. All are

former F.B.I. agents, with extensiveinvestigative experience.

John (Jack) Kenney, President. (FormerAssistant Agent in Charge for Arkansas)

Arkansas serving as the firstDemocratic sheriff of LafayetteCounty since 1865 and later as astate representative and statesenator. Although the King­Whatley building is no longerused as law offices it remains inthe hands 01 King heirs and hasrecently been the subject of ex­tensive restoration efforts. tak­ing advantage of Federal tax in­centives for preservationprojects.

Another historic law officenow serves as the Arkansas Citymuseum in Desha county. It wasbuilt in the final decade of thenineteenth century as a law of­fice. One of its occupants wasXenophon Overton Pindall (morecommonly referred to, not sur­prisingly, as ''X. 0.") whoserved as acting governor ofArkansas lor almost two yearsfrom May 1907 to January, 1909.The museum is close to theheart of this once thriVing rivertown. Only a short distancefrom the county courthouse itsits with its back to the levy.The building's use apparentlystrayed from the law when, ac­cording to local reports, ashallow cellar underneath wasused as a still during prohibi­tion.

The changing uses of build­ings have brought many earlystructures that were houses, of­fices of another type. govern­ment buildings and even, in onecase, a jail into play today aslaw offices. Some of the finestrestoration and rehabilitationprojects carried out in Arkansashave involved law uses from theOld Post Office and CustomsHouse in Little Rock that nowserves as the University ofArkansas at Little Rock Schoolof Law to another Old Post Of­fice, this one in Camden, thathouses the county law library.

The Camden Post Office com­bines several uses. In additionto the law library it houses theoffices of attorneys Hamilton H.Singleton and James D. Foyil aswell as other office space andtwo retail outlets. Here againthe location is critical. the PostOffice sits only a block from thecounty courthouse and in themiddle of the downtown busi­ness district. The building,

721Arkansas Lawyer/April 1985

Arkansas City museum in DeshaCounty,

Photo Courtesy of ArkansasHistoric Preservating Program

which had been sold as surplusby the General Services Admin­istration (GSA) to the Berg fami­ly of Camden was the subject ofgrant funds administered by theAHPP and was also a projectthat took advantage of the tax in­centives.

The Guisinger building onFayetteville's square is anotheradaptive use to law offices thathas taken advantage of the fed­eral tax incentives. Built in 1886to house a hardware businessthe building was bought in 1925and somewhat altered by IvanWinford Guisinger for his musicbusiness. Guisinger had enor­mous success and the businesscontinued in this location, runby his sons, until 1981. It waspurchased in 1982 to house thelaw firm of Odom, Elliott, Leeand Martin. The ground lIoorused largely as reception andclerical space gets abundant nat­ural light through the large dis­play windows that Guisingerinstalled to show his pianos andother wares. The upper storywas originally one large storagespace and has been adapted toprivate offices. Both lIoors havepressed tin ceilings which re­main in excellent condition.

The most common adaptiveuses for office space are of olderhomes. With their formal entry­ways, excellent natural lightand generous proportions theyhave lent themselves easily to

Page 23: APRIL 1985

--<>-­Photo courtesy of Arkansas HistoricPreservation Program

Photo courtesy of Arkansas HistoricPreservation Program

which is critical to any success­ful use. Additionally rehabilita­tion projects are cost effective,with lower costs per square footthan construction. Those factsalong with the substantial tax in­centives available to preserva­tion projects have made goodinvestments for their owners.Another plus, as the buildingsdiscussed here show, is thatthey are good investments fortheir communities as well. 0

April 19851Arkansas Lawyern3

Prigmore-Martin House in Pine Bluff,

Gann House in Benton.

,L

charitable contribution deduc­tion for granting an easement toretain the historic features of theproperty.

The offices described here areonly a sampling of the historicbuildings in Arknsas that havebeen put to new uses. Thecharms of historic buildings areonly a part of the reason for thesurge in such projects in the lastdecade. They also have, as hasbeen discussed, good location

office uses. The most recentsuch project is the Prigmore­Martin House, occupied by thefirm of Eilbott Smith Eilbott Hum­phries & Taylor in 1984. Built in1874 by George W. Prigmorewho had come to Arkansas fromIllinois the two story house occu­pies a prominent comer lot onFifth Avenue, one of the mainarteries in Pine Bluff. Theprimary rooms in the two storiesare used now as private offices.The reception area, clerical andservice spaces are contained intwo additions to the rear of thehouse. The transformation intooffices required few significantchanges in the layout of thehouse and ample parking hasbeen provided at the rear andsides. This project has gainedconsiderable local support andhas served as an impetus forfurther rehabilitation work inthis older Pine Bluff neighbor­hood.

The Walker-Stone house onCenter street in Fayetteville nowhouses the law firm of Kincaid,Horne & Trumbo. Rehabbed in1979 and '80 with the assistanceof a historic preservation grantthe house was built in 1845 byJudge David Walker. JudgeWalker owned it only briefly sell­ing it in 1850 to Stephen K.Stone, grandfather of the notedarchitect Edward Durrell Stone.Its present use recalls the build­ing's early connection with anattorney and is part of the excit­ing redevelopment that hastaken place on and around theFayetteville square.

The Gann House in Bentonhas been one of the proudestprojects accomplished in thatcommunity, restoring this 1895Queen Anne home to a place ofprominence and giving it a newuse as the offices of attorneysSam Gibson and George Ellis.Although many interior featureshad been lost the originalstained glass remained as didsome of the interior woodworkincluding all the mantels. Of­fices in the parlors make gooduse of those interior details aswell as of the abundant lightprovided by the large windows.The owners of the Gann Househave taken advantage of thepreservation easement programwhich allows owners to take a

Page 24: APRIL 1985

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741Arkansas Lawyer/April 1985

Page 25: APRIL 1985

ByFrancesMitchell Ross

Some

courts where he sued the NewMadridites for forcible entry anddetainer. Russell won the firstround, lost on appeal and took thecase to the Superior Court.' In Juneof 1821. in the first function of theterritorial government at the newcapitol of Little Rock,' the Supe­rior Court ruled in the case ofRussell v. Wheeler et al. that thelands were in the lawful and right­ful possession of Russell and thatWheeler and the others had un­lawfully driven Russell out in Jan­uary of 1820.' So much for theCourt's opinion. It prompted re­percussions which few could haveanticipated, since most of the im­provements on the land had beenmade by the New Madridites whorefused to give up.' A visitor to thecity on the day after the SuperiorCourt's decision later recountedhis version of what transpired thatday. "First we saw a large woodand stone building in flames andthen about 100 men, painted,masked and disguised in almostevery conceivable manner, en­gaging in removing the town.These men, with ropes andchains, would march off a framehouse on wheels and logs, place itabout 300-400 yards from its for­mer site and then return and moveoff another ... They all seemedtolerably drunk They were ajolly set indeed and by night-fall they had completely changedthe site of the town. In one dayand night. Mr. Russell's land wasdisencumbered of the town ofLittle Rock. The free and en­lightened citizens of Little Rockmade a change of landlords more

rapidly than Bonaporte took Mos­cow.'"

The court had ruled, but whohad won? No court in the land

A k could prevent the town from run-

r ansas ning away. Thus Russell negoti­ated with Ashley, who repre­sented the New Madridites, and in

CaseSNovember of 1821. they divided thearea in dispute. This gcrve Ashleyhis start in real estate' and atleast for the time being, the landdispute was resolved.' This in­deed, was a famous case. It wasLittle Rock's first case as ter­ritorial capitol, it dealt with com­plicated land title issues and itproduced some absolutely as­tounding results.

Some years later, Little Rock,still in place and growing, wasstruck by scandal. It involved therecent failure of the Real EstateBank of Arkansas which had goneinto receivership April I, 1842.Approximately $14,000 of Real Es­tate Bank money had been depos­ited with Justice of the Peace J. D.Fitzgerald by holders of the notes.the money was stolen in a robberyof Fitzgerald's office in August1842. Several persons were ar­rested in connection with thecase, among them Samuel Trow­bridge, recently of Maine and Il­linois, William Caldwell, Mrs.Caldwell, and others. Caldwelltemporarily escaped but was laterfound in his house, sitting by thestove in which fresh ashes ofpaper were found. Could it beashes of the money? Mrs. Cald­well, also at home, was found"with a vial in her bosom contain­ing $1.400" believed also to be themoney.'

Officials began to connect thisrobbery with a rash of recent coun-

Editor's Note:

This article by frances MitchellRoss is the text of a speech she pre­sented March 9, 1984, before thePulaski County Bar Association.Ross is the coordinator of theWomen's Studies Program and theOral History Program at the Uni­versity of Arkansas at Little Rockwhere she is an assistan t professorin ;he Department of History. Ourthanks to Dr. Robert A. Leflar forhis assistance, and for help re­ceived from the staff at theArkansas Territorial Restoration,Bill Worthen and Louise Terzia.

"The Ten Greatest Trials ofPulaski County," the titleand subject originally

assigned to this talk, emergetoday alter much modification as"Some Arkansas Cases, A Few ofThem Great and a Few of ThemNot." The cases which I hcrveselected fall into three broad cat­egories which for convenience Icall the Little Rock cases, thecases for reform and the mysterycase.

The Little Rock cases are first.and first among them is a casewhich involved a title controversyover the site of Little Rock itself.No sooner had the territory ofArkansas been created, than theSuperior Court was enlisted to re­solve a land claim dispute overownership to the Little Rock area.Two major conflicting claimsexisted. One was a pre-emptionclaim purchased around 1819 bySt. Louis land speculator, WilliamRussell. The claim dated back to1812 when a wandering trapperwho had spent a few months herefiled claim for the land based onthat period of residence. Secondwas a claim which stemmed fromthe New Madrid earthquake of1811-1812. The earthquake had dis­located many settlers around NewMadrid, Missouri, and Congressin 1815 voted relief to the settlersby offering them New Madrid cer­tificates which allowed them to re­settle on land that included thisarea. Several men bought up theLittle Rock area certificates. Theyincluded Amos Wheeler. who be­came Little Rock's first post­master; Stephen F. Austin, whowent on to seek his fortune inTexas; Chester Ashley, recentlyarrived from New England and anambitious young lawyer, andothers. Both Russell with his pre­emption claim and the New Mad­ridites, with their certificates,wanted legal ownership to theland at the "point of rocks. ",

The dispute grew heated. TheNew Madridites, in January 1820,decided Russell's claim wasworthless and threw him out.Russell. not easily defeated, en­listed the press in his cause. InMay of 1820 he published notice inthe Arkansas Gazette of his right­ful claims and his intent to pressthe issue vigorously. Even beforethis, he had taken his case to the

April 1985/Arkansas LawyernS

Page 26: APRIL 1985

Suite 400, Continental Building100 Main St., Little Rock, Ark.

1-501-375-1439

TOM M. FERSTL, MAl, SREA

searching all the private apart­ments. greatly disturbing her andinjuring the property." some ofwhich they took away.

The court decided against theMoores. first because as a mar­ried woman Mrs. Moores was im­properly joined with her husbandin bringing action. and second be­cause all property purchased orowned by the wile belonged to thehusband ... and he alone mustsue, The court said that "everyspecies of personal propertywhich the wile may acquire bypurchase. by her own labor. or bygilt. during the coverture belongsto the husband." and only he canbring action. The opinion further­more said that "this doctrine is toowell settled to be controverted;and it is not necessary to supportit by reference to authority."

In 1845. the Court ruled on acase which originated in PulaskiCounty and involved a woman.Harriet Kelly." who before mar­riage was given a slave. She latermarried Mr. Jeffries. Soon theslave was seized under orderagainst her husband. The slavewas sold and purchased by Mr.Lindsay. Harriet Kelly Jeffriesattempted to reclaim the slaveand the court had to determine ifthe husband through marriage ac­quired title to the slave so that itcould be seized in action againsthim. Not surprisingly the courtsaid that through "the marriage

Member:Arkansas Bar AssociationArkansas Realtors Assn.

Society of Real Estate AppraisersAmer. Institute of Real Estate Appraisers

Court Testimony ...Real Estate Counseling ... Feasibility StudiesCommercial and Residential Real Estate Appraisals

terms of general in'terest aroused.it came closer than any other tobeing the "Creation Science trial"of the 1840·s.

I include this limited collectionof Little Rock cases because theymay be of interest to PulaskiCounty lawyers. because theywere important to early LittleRock. and as a reminder that LittleRock was largely born and rearedin the courts. Contemporary litiga­tion falls into the long. costly. butolten colorful heritage of LittleRock judicial controversy.

Next are the cases for reform.The first few cases for reform arefairly easily discussed togetherfor they all point to a commonlegal and historical problem: therights of married women undercommon law. The last case shallbe saved for separate considera­tion.

In 1828 Benjamin Moores andhis wife. Ann, appealed to theSuperior Court in a case oftrespass with arms against Law­rence F. Carter and others."While Mr. Moores was stationedwith the army at Ft. Gibson, Mrs.Moores "lived by her own industryand had a small house furnishedat her own expense in CrawfordCounty." The Moores alleged thatthe defendants "with force andarms. entered the dwelling ­house. and threw Ann into greatfear by their menacing manner.by breaking open her chests.

terfeiting which included U.S.gold and silver coins, bank notesof other states. and corporationnotes of the town of Little Rock."The same gang of thieves waslater connected to a jewelry storerobbery a year earlier" as well asto most of the crimes committed inLittle Rock during the past four orfive years. 11

The arrests and subsequent tri­als of the gang were the talk ofLittle Rock in 1842 and 1843.People discussed almost nothingelse for months and for manyyears it was Little Rock's most sen­sational criminal case. 13 It wasenough that the gang of thievesand counterfeiters had beencaught and were being tried. butimagine how you would have feltto learn that the chief crook. thelead thief, the man who kept thecounterfeiting press and fakemoney in his own home. was noneother than Samuel Trowbridge.the mayor of Little Rock! On theone hand he printed counterfeitmoney and then gave his officialopinion as mayor that the verynotes he knew to be counterfeitwere genuine and would be re­deemed. l

In their 1843 trials. Trowbridge'sbeing first. several members ofthe gang were found guilty andsentenced to the penitentiary.Trowbridge went for 21 years. Youcan imagine the public's outragewhen about a year and a haJilaterGovernor Yell sliced 16 years offTrowbridge's sentence. l~

In commenting on the whole sor­did affair. and probably as a re­buttal to unfavorable publicitywhich the case had aroused else­where, the Arkansas Gazettewrote that "we beg leave to informedHors at a distance that if theyhave any propensity to writemoral lectures ... for the benefitof Arkansas. the very ringleadersof the arrested gang. and almosteveryone of their subordinates.are from the lands of steady hab­its. to wit: Ohio, Pennsylvania.New York and Maine, ... most ofthem have been but a few years inthis state. II we are overrun withdesperadoes. it is because theyhave come down upon us, likeGoths and Vandals. from theNorth. "Ifi If sensationalism makesfor greatness. then the Trow­bridge case should qualify. In

761Arkonsos Lawyer/April 1985

Page 27: APRIL 1985

all personal chattles of the wife(are) vested in the husband ...during the coverture. Whilesingle. she could have sold andconveyed the slave to any otherperson. and by the marriage sheconveyed to her husband." Boththe sale and Lindsay's title werevalid.

In 1884. in Walker v. lessup" thecourt determined that Mrs.Walker. who had purchased landon credit for $1.280 and was latersued because the term of thecredit had expired and nothinghad been paid. was not in the firstplace able as a married woman tobuy real estate on credit and bindherself personally for its pay­ment. None of the laws passed re­cently had enlarged the wife'sability to contract generally. thecourt said.

None of these cases is outstand­ing in itself. but together they alldo relate to the common law asthe common law applied to mar­ried women in the 19th Century.The common law simply relievedmarried women of significantrights. In a case similar to thosedescribed above. it is clear thateven the justice involved ques­tioned the justice of the law." butit is also clear that Arkansascourts in the 19th century acted touphold tradition and to protect theestablished body of common law.Inequality before the law restedlargely undisturbed. Indeed aslate as 1912. married women werefor some purposes still legallyclassified with children and in­competents. 2•

The problems which thesecases illustrate are no longer withus. They have been remedied bystatute and constitution over along period of years. But I do thinkit's worth remembering that theseproblems were felt by a largegroup of people and that reform ofthe law was a painfully slow pro­cess.

The last case for reform con­cerns an issue which was neverheard in any Arkansas court. butwhich affected countless lawyersfrom Arkansas and other Southernstates after the Civil War.Arkansas attorney. Augustus Gar­land. found himself disqualifiedfrom appearing before any Fed­eral Court because he had servedin the Confederate Congress. The

U.S. Congress had passed lawsrequiring all government officersas well as attorneys to swear thatthey had never supported a gov­ernment hostile to the U.S. Thisoath was required of attorneys inorder for them to practice in anyU.S. Court and to falsely take theoath would be to perjure them­selves.D Garland prepared anargument to present to the U.S.Supreme Court challenging theconstitutionality of the Acts andmaking other points." Garlandwon his case24 by one vote.~ Itwas a landmark case because itwas seen to vindicate the rights oflawyers against legislative en­croachments. it re-instated Gar­land. countless other southernlawyers. and brought about in­stant reform in the process.

Finally. the mystery case; theonly case of the late 20th Centurywe have to consider . .. and it,not a real case at all. Yet it hasbeen much cited unofficially andhas been used in Appellateludges Seminars at New York Uni­versity." This is. of course. thenoted 1968. April I. opinion of lus­tice George Rose Smith in the suitof I. R. Poisson against Etienned·Avril.~ You will recall that Pois­son sued d'Avriito enforce an oralagreement by which d'Avrii soldPoisson 40 acres of bottom land inthe Hot Springs Mountains.O'Avrii maintained that under the1838 Statute of Frauds an oral con­tract for sale of land cannot be en­forced. Poisson countered that theOmnibus Repealer of 1945. whichrepealed "all laws and parts oflaws." had nullified the Statue ofFrauds. The question then be­came what is the Law? Is it statuteonly or common law plus thedigest of statues. annotated? Theauthor of the opinion determinedthat it was beyond belief that theGeneral Assembly would doaway with Judge-made law say­ing "it is essential that the com­mon law be preserved if we are toavoid anarchy. The statutory lawis not equally essential." Thus therepealer was seen to apply only tostatues. "leaving all judge-madelaw unmonkeyed with." The caseitself called into question the na­ture of law and legislation gener­ally.

If we have reached the point ofquestioning the nature of law and

legislation. then that might callinto question all that has beensaid thus far today. If we shouldthrow out statutory law would weresurrect married women's"rights" under common law? Canwe imagine that such a situationcould arise at the Federal level? Ifso. what about the Little Rockland claims? Would any be legit­imate? How could the court de­cide? Indeed. we might all be con­sumed wi th the burning questionof who really does own Little Rock!

The implications of all of thisare staggering and frightening tocontemplate. Having raised thisweighty issue and having consid­ered some Arkansas cases of noteand near note. I shall on that noteconclude. leaving both judge­made and statutory laws un­monkeyed with.

FOOTNOTES

I Ira Don Richards. Story of a Rivertown.Little Rock in the Nineteenth Century("·n.p.... 1969). pp. 6-7.

2 Margaret Ross. Arkansas Gazette. TheEarly Years 1819-1866 (Lillie Rock:Arkansas Gazette Foundation. 1969). p.36.

3 Ross, Arkansas Gazette. p. 37.4 Russell v. Wheeler, Hemp. 3 (Super. Ct.

of Ark. Terr. 1821).~ Dallas T. Herndon. Why Little Rock Was

Born (Little Rock. 1933). p. 141.& Herndon. Why Little Rock Was Born. p.

139-140. Herndon, for one, questions theaccuracy of this colorful description.

7 Herndon. Why Little Rock Was Born. p.152.

8 Richards. Story of a River Town. p. 10., Little Rock, Arkansas Gazette. Oct. 5.

t842.10 Ross, Arkansas Gazette. p. 186.II Little Rock. Arkansas Gazette Oct. 12.

t842.12 Ross. Arkansas Gazette p. 186.13 Ross. Arkansas Gazette p. 186.14 Little Rock, Arkansas Gazette Aug. 21.

t844.I~ Little Rock, Arkansas Gazette. Aug. 21,

1844.16 Little Rock. Arkansas Gazette. Oct. 12.

1842.17 Benjamin Moores and Ann Moores, his

wife v. Lawrence F. Carter. FrederickThomas, and William Clark, Hemp.(Super. Cl. of Ark. Terr. 1828).

18 Lindsay v. Harrison. 8 Ark. 302.I' Walker v. Jessup, 43 Ark. 163.:III Harrison v. Trader and Wife. 27 Ark. 288.21 Deane v. Moore, 105 Ark. 309: lSI SW

286.22 Augustus Garland, "Argument in the

United States Supreme Court, on His Ap­plication to be Permitted to Practice inSuch Court Without Taking the Oath, AsPrescribed by Act 01 Congress of July 2.1862. and January 24. 1865." 08651. p. 4.

:l3 Garland, "Argument," p. 5.24 Garland, "Argument," p. 3-23.25 Augustus H. Garland. Experience in the

Supreme Court of the United Stales,With Some Reflections and Suggestionsas to that Tribunal (Wash.. D.C. 1898), p.20.

26 Robert A. Leflar, "Letter," Jan. 10, 1984.27 J. R. Poisson v. Etienne d'Avril. 244 Ark.

478·A.

Aprit 1985/Arkansas Lawyer/77

Page 28: APRIL 1985

Toward the Bicentennialof the U.S. Constitution

Introduction by Dr. Robert A. Leflar

78/Arkansas Lawyer/April 1985

Bill W. BristowVincent W. Foster.

Jr.Should negligence

liabilityattach to thereporting by

a newspaper ofinaccurateinformation

if it failsto publish

a retractionwithin 30 days

of the error?

Robert P. CabeG. Ross Smith

School board reviewof educationalmaterials andschool course

content ­should it berequired to

remove indecent,obscene or

inappropriatematerials?

Phillip CarrollAlbert M. Witte

Should priorrestraints be

used onnewspaperswhere the

informationpublished interfers

with a person'sright to privacy?

Robert M. Cearley.Jr.

J. W. Dickey. Jr.Should therebe specificcontrols on

cable televisionprogramming that

contains sexualor violentcontent?

Page 29: APRIL 1985

u Toward the Bicentennial u

I In the United States, develop­ment of the legal concept of free­dom of speech and of the press asa basic civil right dates from JohnPeter Zenger's New York trial forthe crime of libel. and his acquit­tal. in 1735. That was 250 yearsago. It is difficult for an informedcitizen in 1985, especially if he bea lawyer, to appreciate the tre­mendous change that has takenplace in our law of defamationsince that time.

Zenger was a political opponentof William Cosby, the governor ofNew York. Zenger's newspaper, aweekly journal. published articleswritten by James Alexander, alawyer, highly critical of Cosbyand his administration. Becauseof this, Zenger was prosecuted forlibel. Cosby's new appointee aschief justice, James DeLancey,was the trial judge. Alexanderplanned the defense, but he ap­parently was a better writer thanspeaker, and knew it. His defenseplan was primarily jury persua­sion, and for this he needed appro­priate eloquence. Accordingly, heasked his friend Andrew Hamiltonof Philadelphia, reputedly thebest trial lawyer in the Colonies,to try the case. Hamilton ac­cepted, and the transcript of hisargument constitutes the princi­pal matter that is remembered asrepresenting the beginning ofwhat we now know as FirstAmendment rights in America.

Hamilton began his part in thetrial by stating that he did notdeny the publication, but thatwhat was published was true,which was his sole defense. Thechief justice's response was:

"You cannot be admitted, Mr.Hamilton, to give the truth of aLibel in Evidence. A Libel is notto be justified; for it is neverthe­less a Libel that it is true."

This was in keeping with the oldStar Chamber maxim, "The great­er the truth the greater the libel."Unpleasant reports were mostharmful if they could not be dis-

Free Pressand FreeSpeech:ADevelopingConcept

By Dr. Robert A. Leflar

proved. That was still the law inEngland, and in old New York. Noevidence of the truth of Zenger'spublications was admitted. TheChief Justice was specific in his in­struction to the jury that truth wasno defense, and he admonishedHamilton to make no argumentconcerning "truth" as a defense.The clever advocate thanked thejudge politely, yet managed tobuild his entire jury argument onthe importance of free public ac­cess to facts (the truth?) in mattersaffecting government. The jury'sverdict. rendered promptly, was"Not Guilty." What happened wasthat the jury decided for itself. re­gardless of the judge's in­structions, that truth should be agood defense, and that the de­fense existed in this case despitethe lack of admitted evidence. Ajury can do that.

Critically analyzed, this wasbut a small beginning for freedomof the press. "Truth," ascertainedthrough jurors' beliefs and preju­dices, is an illusory thing. No onecan know with certainty whatjurors will think is "true."

Yet it was a beginning. Ham­ilton's argument. carefully re­ported, was copied and reprintedthroughout the Colonies. Becauseit had been successful. it wasquoted as though it were the law.

Gradually it became the law,though it was not until the deci­sion in Garrison v, Louisiana. 379U.S. 64 (1964) that the UnitedStates Supreme Court so held ex­plicitly. Blackstone stayed withthe Star Chamber view, but St.George Tucker's 1803 Americanedition of Blackstone's Com­mentaries essentially agreed withHamilton.

The First Amendment to thenew Constitution of the UnitedStates was in the meantime adopt­ed. The part of it dealing with freespeech and press provides onlythat "Congress shall make nolaw ... abridging the freedom ofspeech, or of the press ... "Obvi­ously. that was a limitation uponfederal enactments only; it wascommonly said at the time thatthe states remained free to controlspeech, and .especially the press,as tbey pleased. The prohibitioneventually became applicable tostate law also when in the middle1900s the Supreme Court made itclear that the Fourteenth Amend­ment, adopted in 1868, made the

Editor's Note:

Dr. Robert A. Leflar is a dis­tinguished professor and deanemeritus of the University ofArkansas School of Law at Fay­etteville.

He received an LL.B. degree,cum laude, from the University ofArkansas in 1922 and an S.].D.from Harvard Law School in 1932.

Dr. Leflar was president of theArkansas State ConstitutionalConvention in 1969-70 and 1978-80and was chairman of the ArkansasConstitutional Revision StudyCommission in 1967-68.

He is the recipient of the Doctorof Letters (honorary degree) fromJoh_, Brown University, the JusticeAward of the American JudicatureSociety and Scribes "Most Mer­itorious Book" Award for Appel­late Judical Opinions, amongother awards.

April 1985/Arkansas Lawyern9

Page 30: APRIL 1985

Constitution's Bill of Rights basiclaw for the entire nation. That leftit for the Court itself to determine,hy constitutional interpretation inthe cases it accepts for review, thereal scope of the freedoms.

At one stage it seemed that"prior restraint" on protected pub­lications might be all that was pro­hibited. Near v. Minnesota 283U.S. 697 (1931). Sanctions after pub­lication might not be precluded.That did not make much sense.Freedom to publish, then to bepunished for having published,was not much of a freedom.

Ultimately the Supreme Courtachieved less obscure, thoughstill not comprehensive, inter­pretations. In New York Times Co.v. Sullivan. 376 U.S. 254 (1964), itlimited the right of a "public fig­ure" (municipal official) to recoverfor nonmalicious criticism of hisconduct. and in Gertz v. RobertWelch, Inc.. 418 U.S. 323 (1974),after redefining the term "publicfigure," it confined somewhat thescope of libel recovery by plain­tiffs who are not public figures. Adozen other cases have described,or at least hinted at. con­stitutional boundaries on a vari­ety of aspects of libel law. Olhersremain for future analysis.

One far-out analysis may nowbe deemed to have fallen by thewayside. This was the view as­serted by Justice Hugo Black, thatthe Constitution forbids any andall legal interferences with or bur­dens upon completely free speechand press. "The Constitutionmeans what it says, with no ifs,ands, or buts," he argued. Heseemed to believe that the wholelaw of libel and slander was pro­scribed. One answer to that argu­ment comes from a more exactreading of the First Amendment.as to just "what it says." The word­ing is that there shall be "nolaw ... abridging" the namedfreedoms. To "abridge" is to di­minish or lessen an existingstatus. There was a small body oflibel and slander law in existencein America in 1791, when the First

SO/Arkansas Lawyer/April 1985

Amendment was adopted. If theword "abridging" were to be givenits standard meaning, the Amend­ment "says" no more than that theexistent relevant law should notbe diminished or lessened, pre­sumably in the meager protec­tions it then afforded to speakersand publishers.

Mr. Justice Black ignored thateasy interpretation of the Amend­ment's words, and the SupremeCourt without discussion has re­jected it. The limitations es­tablished in New York Times andGertz. for example, go far beyonda mere abridgement of protec­tions afforded by 1791 laws. Thoseearly laws are for all practical pur­poses deemed irrelevant. The Su­preme Court's current approach isto give to the guaranty a meaningthat will fit the needs and societalstandards of the time - latetwentieth century - for which therules are laid down. It seems far­fetched to call this an interpreta­tion of the specific words em­ployed in 1791. and it is. Still, thatis the accepted approach toAmerican constitutional interpre­tation, for clauses which statebroad principles inexactly. Wereit nol for that approach the 1789Constitution could not havelasted for nearly two centuriesalready, plus a future time as yetunknowable.

By that same token, the future ofFirst Amendment rights cannot beintelligently predicted, particular­ly as they relate to the press. Theuncertainties inherent in libelsuits, especially as huge verdictsare rendered in them, can bothdiscourage publication in ad­vance and, later, terminate publi­cation altogether. The modememergence of newspaper owner­ship chains with theirmonopolistic tendencies may mixanti-trust law concerns into thefree press picture. Jurors may bereadier to render big verdictsagainst big corporate publishers,and such corporations may beprimarily concerned with protect­ing profits. Their interest in free-

dom of the press may be basedmore upon its effect on profitsthan upon concern for the tradi­tional values that the Bill ofRights was designed to protect.Big damage awards may be theonly sanction that can influencethem.

For ordinary parties to def­amation claims, however. awardsof money damages will often beless than the ideal legal remedy.Perhaps, at least for some types ofcases, either the courts or the leg­islatures should revive the oldArkansas device of the Lie Bill.(See 6 Ark. Law Review 423). Thatwas a realistic and effective rem­edy. 0

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* Toward the Bicentennial *On January II, 1985, Frank

Simps' was astonished to read thefollowing article in his morningnewspaper:

Frank Simps, 38, of 146 PikerStreet was arrested Friday andcharged with first-degree bat­tery and aggravated robbery inconnection with the shooting ofa mailman in the 300 block ofPiker Thursday afternoon.

Simps is the man who ap­proached the mail carrier.Winston Em, 52, about 2 p.m.Thursday and complainedabout receiving too much junkmail and about receiving aChristmas card in mid-January,about a month after the cardhad been mailed to him by aneighbor.

When Em refused to stop anddiscuss the complaints, Simpspulled a pearl-handled .22­caliber revolver from his waist­band and shot Em in the rightthigh. Simps then took severalPublishers Clearinghousesweepstakes entry packets fromEm's mailbag and lied thescene. Em was taken to JeckyllMemorial Hospital where hewas reported in satisfactory con­dition Friday.

Simps was being held under$50.000 bond Friday night in thecity jail. The sweepstakes entrypackets have not been re­covered.After his wife had received sev­

eral phone calls from neighborsand friends indicating worry thatFrank was still in jail withoutbond, an irate Frank Simps calledthe City Desk to say his only con­nection with the incident was as awitness. The newspaper editorlater called Frank and apologizedprofusely and the next day thenewspaper ran the following arti­cle on the same page and in thesame print size as the originalstory:

Correction:In a news article Saturday.

the Herald-Cryler incorrectlyidentified Frank Simps. 38, of146 Piker Street. as the man whowas arrested and charged with

Retractionand TortLiabilityIn MediaDefamation Cases

By Bill W. Bristow

first-degree battery and aggra­vated robbery in connectionwith Thursday's shooting ofmailman Winston Em. Actu­ally, the man arrested for theshooting and robbery was FredLimple, 44, of 138 Piker. a neigh­bor of Simps. Simps' only con­nection with the shooting inci­dent was a witness. TheHerald-Cryer regrets the error.This article will address itself to

two issues. First. what is the ef­fect on an action for defamation ifa timely retraction is made? Sec­ondly, if the newspaper had re­fused to print a retraction. wouldthis refusal constitute an addi­tional tortious action for which adamage remedy will lie?

Under present Arkansas law,there appears to be a ready an­swer as to the effect of a timely re­traction on an action for defama­tion. The Arkansas SupremeCourt in a non-media defamationcase, Dun & Bradstreet. Inc. v.Robinson' ruled in 1961 as follows:

At any rate, of course, eventhough the second Dun & Brad­street notice could possibly beconsidered as a full and fair cor­rection or retraction, samecould only be considered in miti­gation of damages. 345 S.W. 2dat 38.It is submitted that the afore­

said rule is a sound one. As dis­cussed in that decision, a personwho is charged with a crime willgenerally deny that he has com-

mitted the crime, but this denialdoes not vindicate him in the eyesof tbe public. The Arkansas Su­preme Court pointed out that if anotice were published to the effectthat "it is currently reported JohnSmith has stolen money from hisemployer" and a subsequentnotice is published that "JohnSmith denies that he stole moneyfrom his employer" that tberewould still be a question of dam­ages. It is thus submitted that theeffect of retraction itself shouldnot be a complete and total de­fense to a defamation action, butthe defendant charged with libelmay properly defend by showingthat a timely and immediate re­traction eradicated or seriously re­duced any damages.

The issue of retraction, how­ever, may bear markedly on theissue of punitive damages. TheEighth Circuit Court of Appealsapplying Arkansas law in a diver­sity action in Luster v. RetailCredit Company' found the defen­dant's immediate correction of theoffending article to mitigateagainst an award of punitive dam­ages. The Court of Appeals gavethe plaintiff a choice between ac­cepting a remittitur of the punitivedamages and receiving the com­pensatory award or alternativelyhaving a new trial on both issuesof compensatory damages andpunitive damages. The case readi­ly illustrates the effect that an im­mediate and complete retractionof an error can have on the ques­tion of the defendant's good faithand issues of malice, particularlyas viewed by an appellate court.

Editor's Note:

Bill W. Bristow, of Jonesboro. isa plaintiff's attorney who has rep­resented several clients in defam­ation cases.

Bristow graduated in 1975 cumlaude from Harvard University.His senior thesis was designatedan honor's paper and placed inthe Harvard Law Library. He is a1972 graduate of Arkansas Col­lege. suma cum laude.

April 1985/Arkansos Lawyer/S1

Page 32: APRIL 1985

Similar considerations as regardsthe effect of a retraction on theissue of a plaintiff's entitlement topunitive damages are noted instatutes in other states. 4

Thus, in Arkansas the makingof a retraction is not a completedefense but it certainly bears onthe issue of damages and retrac­tion may in fact in certain circum­stances preclude the award ofpunitive damages, It is submittedthat this is in fact a proper ruleand is grounded in sound policynotions because to do otherwisewould basically be to allow thesloppiest form of initial reportingto be insulated from liability bythe simple process of making a re­traction when demanded, Asnoted in Dun & Bradstreet v.Robinson. supra. damage mayalready have occurred, and the ex­tent of this damage in the face of aretraction should be a question offact for the jury, It is submittedthat this rule in Arkansas is soundand proper and is in accordancewith the general law in otherstates.

The more perplexing questionis the effect of the failure to makea retraction when demanded. Touse the factual situation set forthabave, what would Frank Simps'remedy have been if the retractionin the example given abave hadbeen arrogantly refused? Statedin different terms, can the refusalto print a retraction be a separatebasis of tort liability?

It should of course be admis­sible as to the general pattern ofevents relative to the publishingdefendant's state of mind to showthat demand for retraction hadbeen made and that no retractionhad been published. Likewise. ifthere is a demand for a retractionand the newspaper were to printthe demand for retraction but thenstate words to the effect that itstood by its story, this may argu­ably be a reaffirmation of the libelwhich would further be relevant tothe defendant's good faith. Theabove inferences can be gleanedfrom the Arkansas Supreme Courtdecision in Jones v. Commercial

821Arkansos Lawyer/April 1985

Printing Company'. There, thenewspaper printed an original ar­ticle and the Plaintiff brought suitfor libel. The newspaper then re­ported on the libel suit and com­mented in the article that thenewspaper's answer to the suithad stated that the articles weretrue and accurate accounts of theproceedings. The lower court heldthat this second article was notadmissible as a republication ofthe asserted libel on a theory ofaggravation of damages. The Su­preme Court reversed. stating asfollows. viz:

If the jury finds that Ap­pellee's initial publicationswere libelous and not privi­leged, it might well also findthat the subsequent report ofthe pleadings had another pur­pose which was to furtherimpress its defamations uponthe public mind. However,since actual malice - Le.,knowledge of the falsehood orreckless disregard for the truth- is not required, the jury, evenif it finds that the initial pub­lications were unprivileged,could nevertheless find that thesubsequent report was pub­lished in good fai th as a fair ac­count of the pleadings. ofcourse. the jury might also findthat the initial publicationswere privileged, in which casethe subsequent report has nosignificance. In any event, wethink the Appellee's subsequentreport of a pleading should bemade available for the jury'sconsideration. 463 S.W. 2d at 96.Therefore, it can be argued

under Arkansas law that actionssubsequent to the publicationsuch as a failure to retract or a par­tial reaffirmation and response toa demand for retraction can beadmissible as aggravating cir­cumstances and on the questionof the defendant's good faith.However. this is a different prop­osition from the contention thatthe failure to do a retraction is aseparate tortious event. This mayappear at first blush to be an im­material legal distinction if one

can in fact get the issue of thefailure to make a retraction beforethe jury, but in one species ofcases it would appear to have realsignificance.

In a case where an admittedlyfalse article has been written butthe media defendant is protectedfrom initial liability by the NewYork Times v. Sullivan rule thatfalse material must have beenpublished with knowledge that itwas false or with reckless dis­regard as to its falsity. a suit fortortious failure to retract might bethe libeled plaintiff's only rem­edy. Certainly, it would appearthat it would be substantiallyeasier to prove a simple failure toretract after demand was madethan that the publication wasmade with knowledge that it wasfalse or with reckless disregard ofits falsity. On the other hand, thecreation of this separate tortwould be a substantial expansionof liability for the media com­pared with the present state of def­amation law.

It is submitted that this afore­said expansion of liability is justi­fied by the same policy decisionsthat led to New York Times and itsprogeny. Maintaining a balancebetween the righls of the mediaand the rights of an individual isan extremely delicate task forcourts to wrestle with and hasbeen a source of bafflement to thegeneral public. The reasoning ofthe New York Times rule was suc­cinctly stated by the ArkansasSupreme Court in Jones v. Com­mercial Printing Company. supra.as follows:

The fear of a costly lawsuit forinaccurately. though honestlyreporting matters concerningpublic officials would certainlydiscourage the exercise of thatdegree of freedom which theConstitution guarantees to thepress. especially in matterswhere even good faith investi­gative efforts cannot assureabsolute accuracy. An added in­centive behind this rationale isthat public figures normallyhave access to the various mass

Page 33: APRIL 1985

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opportunity to have a remedy forthat defendant's failure to allowthe plaintiff's version of the eventto be placed before the public?

In summary, it is argued thatthe creation of a "duty to retract."with concomitant tort liability iswithin the spirit of the rationale ofthe New York Times rule and isjustified by sound policy con­siderations. There is no Arkansascase supporting such a tort rem­edy. but it is argued that policyconsiderations would supportsuch a holding in a proper factsituation. 0

FOOTNOTES

I This entire incident is fictionalbut has been used to frame thelegal discussion against a real­istic fact situation.

'233 Ark. 168.345 S.W. 2d 34 (1960., 575 F. 2d 609 (8th Cir. 1978).• 50 Am Jur 2d. Libel & Slander, at

P.689-690., 249 Ark. 952, 463 S. W. 2d 92 (1971).• 376 U.S. 254. 84 S.Ct. 710. 11 L. Ed.

2d 686 (1964).

article has created damage to aparty's reputation. should thatpublisher not have the duty to atleast attempt to correct the hazardcreated by that publisher's ac­tions?

The aforesaid argument is in­deed on the fringe of the law. Itperhaps can be called a separatetort of outrageous conduct or in­tentional infliction of emotionaldistress based on a theory of creat­ing a duty to retract. An old axiomis to the effect that where there isa wrong. the law should create aremedy. Indeed, there is much tobe said that the New York Timesrule has given the media wide pro­tection. The threat of costly law­suits and extensive litigation hasbeen found to justify this protec­tion that allows many such claimsto be handled on summary judg­ment. Yet, in the narrow instancein which a media defendantwould arrogantly refuse to make aretraction of an erroneous report.should that plaintiff not have the

media and can thereby readilycorrect or refute any defamatorymisstatement made aboutthem. Therefore. it is reasonedthat a showing of actual maliceas a prerequisite to recovery is.in such instances. a realisticand fair requirement. 463 S.W.2d at 95.What then about the situation

where there has been an inac­curate report about a public offi­cial and the publishing defendantrefuses a request for retraction? Ifthe rationale of the protective NewYork Times rule is the fact that apublic figure has access to themedia so as to correct or refute thedefamatory statement. it wouldappear that the refusal of themedia defendant to publish or dis­seminate the retraction strikes atthe heart of the rationale for theprotective rule.

The justification for the re­strictions on suits by public fig­ures is invalidated by a media de­fendant's failure to allow thatpublic figure equal access to ex­plain the charges against that per­son. If the charge is true. truth isnow recognized as a complete de­fense to libel and the mediadefendant may properly refuse toretract. But if the initial charge iserroneous. although reported hon­estly and in good faith. does notthe publishing defendant have anobligation to give the claimant anopportunity to clear the recordwith the public? If there is no suchduty. the media defendant couldbrazenly refuse to correct sucherror all the while insulated fromliability by the New York Timesprotection. It is thus submittedthat in balancing the rights of themedia and individuals that thecreation of tort liability for failureto retract should be a corollary ofthe New York Times rule.

There is another legal rationalefor the development of a theory oftort liability for the failure to makea retraction. It seems fair thatevery party should have a duty tocorrect hazards created by thatparty's actions. If a media defen­dant by its erroneous newspaper

April 1985/Arkansas Lawyer/83

Page 34: APRIL 1985

* Toward the Bicentennial *"Judge in Libel Suit, Acting on

Lack of Published Retraction.Says 'Other' Steps May Follow."Thus read the headline in a storyin the August 4, 1978 edition of TheNew York Times concerning finesassessed against two reporters forfailing to retract previous articles.The earlier articles had reportedassertions by friends and rela­tives of a convicted Georgian thatpolice authorities had fabricateda videotape showing the accusedconfessing. At a hearing subse­quent to the publication of the arti­cles, the convicted person con­firmed the veracity of theconfession. After the reportersfailed to retract the articles in re­sponse to an order by the judge ina libel action, the Court finedthem, set a new deadline for theretractions, and indicated "othermeasures" besides fines might beused if no retraction appeared.Who was this judge? Soviet CourtChairman Lev Y. Almazov of theMoscow City Court.

Should American jurisprudenceadopt the Soviet system of assess­ing fines and "other measures" fora refusal to retract? What aboutthe proposition that an indepen­dent tort liability should attach tothe refusal to publish a retractionof inaccurate defamation?

The practical difficulties pre­sented by this proposition, to­gether with serious First Amend­ment questions concerning its con­stitutionality, weigh against theadoption of such a new cause ofaction. Every responsible news­paper publisher will print aretraction to correct an uninten­tional defamation learned to be in­accurate. I Faced with the situ­ation described as an example inthe accompanying article by theproponent of this new liability,the publisher would readily printthe retraction once he learned ofthe misidentification of the personarrested. The publication of a re­traction not only may limit the li­ability or reduce the damages forthe original publication, it is alsoa matter of basic journalistic eth­ics to correct significant errors

84/Arkansas Lawyer/April t985

NoIndependentLiabilityFor refusalTo retract

By Vincent W. Foster, jr.

upon discovery. The difficultywith the proposal arises in theharder cases where the truth isnot clear-cut or easily verified.

Take, for example, the publica­tion of defamatory quotes from atechnical analysis which a news­paper printed in reliance upon thereputation of the author. Assumethat the newspaper cannot beheld liable for the original publi­cation either because of a quali­fied privilege of neutral reporting'or because reliance upon the re­port will not be found to have beennegligent. Should the newspapernevertheless be held independ­ently liable for failing to print a re­traction of the error if the news­paper is not qualified or hasinsufficient information to resolvethe facts in dispute?

Most newspapers. particularlysmall local publishers, rely heavi­lyon articles originated by thewire services. Few newspapershave the staff or financial abilityto verify independently the truthof a wire article about a distantoccurrence, and would be unableto determine whether a demandfor retraction was meritorious ornot.

Another example: Alter an investigation. a government agencyissues a finding that a private con­tractor has engaged in bid rig­ging. Your local newspaper pub­lishes excerpts from the report.including the conclusion. Al­though one who republishes alibel is independently liable as ifhe had originally published it.'here the newspaper is immunefrom liability because of the quali­fied privilege to accurately andfairly publish or abridge a govern-

ment report.' The contractor de­nies the accusation and demandsa prompt retraction. The pub­lisher is now upon the horns of adilemma. The conclusion is clear­ly defamatory, but its truth is atpresent uncertain. The printing ofretraction would be an admissionof error which the publisher hasnot yet concluded was made, butif he fails to print a retraction,under the proposed new cause ofaction he would be exposed to li­ability for refusal to retract eventhough the original publication isnot actionable.

The publisher is also in a quan­dary where the original publica­tion does not clearly identify thesubject of a defamatory state­ment. A few years ago, astatewide newspaper in Arkansaspublished an article about a pend­ing federal investigation of"blockbusting:' the attempt, forprofit. to induce a person to sell adwelling by representations re­garding the e'ntry into the neigh­borhood of persons of a differentrace or religion. The article didnot accuse any particular indi­viduals. The story was ac­companied by a photograph show­ing "For Sale" signs from various

Editor's Note:

Vincent W. Foster, Ir" a memberof the Rose Law Firm in LittleRock, regularly represents severalnewspapers in the WEHCOMedia, Inc., chain, including theTexarkana Gazette, EI DoradoNews-Times, Camden News andMagnolia Banner News.

He attended Vanderbilt Uni­versity and the University ofArkansas, where he received aI.D. degree in 1971 with highhonors. He was managing editorof the Arkansas Law Review in1970 and a member of OmicronDelta Kappa honorary leadershipfraternity.

Foster is a former president ofthe Pulaski County Bar Associa­tion and a former delegate in theArkansas Bar Association's Houseof Delegates.

Page 35: APRIL 1985

real estate firms in several frontlawns in a row. The name of an in­dividual real estate agent couldbe read on the sign in the fore­ground. The agent contended thatthis amounted to an accusationthat she was engaged in block­busting. The author of the articledid not intend to refer to thisagent. but the legal test for li­ability is whether the article couldbe reasonably understood to referto the agent.'

How should the newspaper re­spond to a demand for a retrac­tion? If the publisher prints a re­traction stating that it was notintending to accuse the agent,then the publisher has as much asadmitted that the article reason­ably could be read to refer to theagent, thus increasing the risk ofliability for the original publica­tion. If the newspaper does notpublish a retraction, however,and a jury later finds that the arti­cle did defame the agent, underthe proposed new cause of actionthe publisher would be independ­ently liable for the failure to re­tract. even though he may haveother defenses against a libelclaim for the original publication.

The same dilemma arises whenthe article is not clearly defama­tory. The subject of an article mayread into it a defamatory meaningwhich was not intended. Underthe law the meaning of the state­ment is that which the reader cor­rectly, or mistakenly but reason­ably, understands that it wasintended to express, taking intoaccount the entire article.' If thenewspaper prints a retraction dis­claiming the meaning ascribed tothe article by the subject. a strongargument can be made that thepublisher has admitted that thearticle reasonably may be read toexpress that meaning.

This proposed independent li­ability for refusal to retract wasargued last summer in Kaplan v,Newsweek Magazine Inc.. 10Media L. Rptr. 2142 (U.S.D.C., N.D.Cal. July 31, 1984). An article inNewsweek on Campus char­acterized Professor John Kaplan's

criminal law courses as "the easi­est five credits a Stanford studentcan earn. Attendance: unneces­sary." Professor Kaplan sued forone count of libel and for a secondcount of intentional infliction ofemotional distress for the maga­zine's failure to discharge its"duty to retract." The Court foundthat the article was not reason­ably susceptible of a defamatoryinterpretation and dismissed thefirst cause of action. In also dis­missing the second cause of ac­tion, the Court held that ProfessorKaplan could not bootstrap an­other theory of liability onto hislibel claim to tum one action fordamages into two separatecauses of action, citing the Uni­form Single Publications Act.'

The Single Publications Rule,which is considered the commonlaw of many states, provides thatanyone edition is considered asingle publication, and a personshall not have more than onecause of action for damages forlibel or any other tort foundedupon any single publication, re­gardless of the number of times itis exposed to different people.'

The proposed cause of actionalso raises serious constitutionalquestions. It presents the otherside of the chilling effect of a priorrestraint upon publication. Ratherthan restraining publication, theproposed cause of action maytend to intimidate a publisher intomaking a publication he wouldnot otherwise have made. By thethreat of independent liability forrefusal to retract. the publishermay be compelled to publish a re­traction whether or not be be­lieves the original article is ac­curate or not, especially wherethe article would require expen­sive investigation to substantiateor would be troublesome to proveat trial. Thus, a primary objectionto compulsory retraction is that"such a heavy burden of investiga­tion is placed on the publisher, ifhe is to dispute his obligation toretract without risking liability,he will be deterred from makingthe original publication or co-

erced into making undeserved re­tractions.",

Does the First Amendmentguarantee the freedom not to pub­lish? In Miami Herald PublishingCo. v. Tornillo." the U.S. SupremeCourt unanimously struck downas unconstitutional a Floridastatute granting a political candi­date a right to equal space toreply to criticism by a newspaper.The Court ruled that a require­ment constituting a compulsionupon a newspaper to print thatwhich it would not otherwise printis an unconstitutional infringe­ment upon the First Amendmentguarantee of a free press. The Su­preme Court reviewed earliercases from which it recognizedthat a compulsion to publish is asserious an infringement as a re­straint from publishing. The Courtalso expressed grave concern thatthe threat of compulsory publica­tion may result in self-censorshipto avoid controversy.ll just as ithad feared in New York Times v.Sullivan" that the risk of largedamages in a libel suit could re­sult in reluctance to publish arti­cles on important issues involvingpublic officials. Justice Brennan,in a concurring opinion joined byJustice Rehnquist. reserved con­sideration of the constitutionalityof "retraction statutes" whichwould provide plaintiffs an actionto require publication of retrac­tion upon proof of a defamatoryfalsehood." a cousin of the leg­endary "lie bill" of North ArkansasDr. Lenar has described." But thebroad language of the Tornillo de­cision appears to be a condemna­tion against compulsory publica­tion generally, which castsconsiderable doubt on whetherthe proposed independent li­ability for failure to retract couldpass constitutional muster.

The proposed liability is partic­ularly offensive when applied topublications concerning publicofficials and public figures pro­tected by New York Times vs. Sul­livan and its progeny. This line ofauthority prohibits a public offi­cial or a public figure from re-

April 1985/Arkansas Lawyer/8S

Page 36: APRIL 1985

covering damages for a defama­tory falsehood unless publishedwith "aclual malice" - knowl­edge of falsity or in reckless dis­regard of whether it is true orfalse. A finding of recklessness re­quires "sufficient evidence topermit the conclusion that the de­fendant in fact entertained ser­ious doubts as to the truth of hispublication. "l~ These con­stitutional restrictions upon libelactions would seem also to pro­hibit secondary liability forfailure to print a retraction of animmune publication unless theplaintiff can prove by clear andconvincing evidence, that basedupon new information, the pub­lisher now knows the original arti­cle was false or now entertainsserious doubts as to its truth."

It should not be assumed. how­ever, that the subject of an articlewho unsuccessfully demands a re­traction has exhausted all rem-

edies. Aside from retraction. theregenerally exists the opportunityfor reply. While the first Amend­ment would likely not permit agovernmentally enforced guaran­tee of access to the media, as apractical matter most newspapersstand ready to publish the reply ofa defamed subject either in a fol­low up article or by a letter to theeditor from the subject or his sup­porter. In fact. Professor Kaplanavailed himself of this op­portunity in a later edition ofNewsweek, It is. in part. the recog­nition of this ability of public indi­viduals to obtain access to themedia that influenced the Su­preme Court to set them apartfrom private individuals in es­tablishing standards for libel ac­tions." This ability of public indi­viduals to gain access to themedia for a reply need not be ex­tended to establish a right to re­quire a publisher, under penalty

of independent liability, to pub­lish a retraction upon demand.

Rather than propose a secondwave of liability for a single pub­lication, the legislature should in­stead consider the adoption of astatute that requires as a pre­requisite for a libel action a timelydemand for retraction and failureto retract. Twenty-three stateshave enacted similar or relatedstatutes. 17 Some make a retrac­tion demand a condition prece­dent to the filing of a defamationaction, while others restrict re­covery to special damages or atleast disallow punative damages,where there has been the publica­tion of a retraction. These statutesare based. in part. upon the beliefthat a voluntary retraction willcompensate the defamationvictim far better than an award ofmoney damages." The pro­ponents of these statutes have nosympathy with gold brickers who

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seize upon a good laith publish­ing error as an opportunity to seeka jury award 01 general and puna­tive damages. As the SupremeCourt has stated: "The first rem­edy 01 any victim 01 delamation issell-help - using available op­portunities to contradict the lie orcorrect the error and thereby tominimize its adverse impact onreputation. "19

Requiring a porty to attempt tomitigate his damages by prompt­ly calling an error to the attention01 the newspaper and giving it anopportunity to correct the error vol­untarily. is more consistent withAmerican jurisprudence than isimposing fines. independent li­ability or "other measures" on apublisher lor lailing to publish aretraction upon demand.

FOOTNOTES

see Lellar. "The Single Publica­tion Rule." 25 Rocky Mt. L. Rev..263 (1953); see also Restatement(Second) of Torts §577A,

• "Vindication 01 the Reputation01 a Public Official." 80 Harv. L.Rev. 1730. 1742-3 (1967).

" 418 U.S. 241 (1974)" 418 U.S. at 257." 376 U.S. 254 (1964)." Justice Brennan first suggested

the consideration of right toreply statutes or retractionstatutes as alternatives lor dam­ages for all delamed persons.public and private alike. inRosenbloom v. Metromedia.Inc.. 403 U.S. 29. 47 (1971).

" Lellar. "Legal Remedies for Def­amation," 6 Ark. L. Rev. 423(1952). See a discussion 01 Tor­nillo on the concept 01 manda­tory retraction in "Reply andRetraction in Actions Againstthe Press lor Delamation: TheEffect 01 Tornillo and Gertz." 43

Fordham L. Rev. 223 (1974)."St. Amant v. Thompson. 390

U.S. 727. 731 (1968);. see also.Gallman v. Carnes. 254 Ark.987, 497 S.W.2d 47 (1973).

.. Gertz v. Robert Welch. Inc.. 418U.S, 323. 344 (1974).

"Steigleman. The Newspaper­man and the Law. 319 (1971), Seealso Annot.. "Validity. Con­struction and Application 01Statute Limiting Damages Re­coverable lor Defamation." 13A.L.R. 2d 277. 289. §6 (1950). andAnnot.. "Libel and Slander:Who is Protected by Statute Re­stricting Recovery Unless Re­traction is Demanded." 84A.L.R. 3d 1249 (1978).

.. See. e.g.. Warner v. SouthernCalifornia Associated News­papers. 35 Cal. 2d.. 121. 216 P.2d825 (1950). app. dism·d. 340 U.S.910. 71 S.Ct. 290 (l95!).

.. Gertz v. Robert Welch. Inc..supra.. 418 U.S. at 344.

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'Steigleman. The Newspaper­man and the Law. 322, 330 (1971);Morris. "Inadvertent News­paper Libel and Retraction." 32Ill. L. Rev. 36 (1937).

'This new principle provides aprivilege lor the accurate anddisinterested reporting 01charges against a public figureby a responsible and prominentorganization. whether or not thepublisher has serious doubts 01the truth 01 the charges. See.e.q.. Edwards v. NationalAudubon Society. Inc.. 556 F. 2d113 (2d Cir. 1977). cert. den.. 434U.S. 1002 (1977).

'Restatement (Second) of Torts§578.

• See e.q.. Brandon v. GazettePublishing Co.. 234 Ark. 332.352 S.W.2d (1961); see Restate­ment (Second) of Torts §611.

• Thiel v. Dove. 229 Ark. 601. 317S.W.2d 121 (1958); Restatement(Second) of Torts §564 (1977).

• Restatement (Second) of Torts§S63 (1977); see. e.g.. Pigg v.Ashley County Newspaper.Inc.. 253 Ark. 756. 489 S. W.2d 17(1973),

'Calilornia Civil Code §§3425.1­3425.5. The Uniform Single Pub­lication Act has been adoptedby six other states.

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Page 39: APRIL 1985

Effects on Real Estate Transactions

By Michael O. Parker

The Tax ReformAct of 1984

On June 27. 1984, Congresspassed the Tax Reform Act of 1984(the "Act") as part of a larger bodyof legislation designated the Def­icit Reduction Act of 1984. It isclear that a primary theme of theAct is to narrow the beneficial taxtreatment given many real estatetransactions, and reduce the at­tractiveness of real estate as a taxadvantaged investment. How­ever. not all of the changes affect­ing real estate transactions areunfavorable.

The reduction in the capitalgains holding period from a yearto six months and the changes inthe tax treatment of property divi­sions on divorce are two examplesof helpful revisions. However.these provisions do not relateprimarily to real estate as an in­vestment. The change in the cap­ital gains holding period is morebeneficial to securities trans­actions than real estate, while thetax treatment of property divi­sions on divorce (which will bediscussed in an upcoming issue ofThe Arkansas Lawyer) does not di­rectly involve investment deci­sions.

This article will address the pro­visions of the Act which come intoplay at the various stages of com­mon real estate transactions: pro­visions affecting acquisition andholding; construction and rehabil­itation; rental and leasing; anddisposition of realty.'Provisions Affecting Acquisition

and Holding of Real EstateDeferred Payment Trans-

actions. Most business clients arefamiliar with the imputed interest

rules previously contained in In­ternal Revenue Code §483 andapplicable regulations. Underthese rules, most real estate pur­chased on an installment basisover a period in excess of sixmonths needed to carry a mini­mum "safe harhor" interest rate(usually nine percent') in order toavoid having interest imputed. orassumed by the Internal RevenueService to be present. at a one per­cent higher rate.

Congress was concerned thatthis minimum interest rate wastoo low and did not react to marketchanges and that the timing of in­terest deductions taken by pur­chasers did not correspond to in­terest income recognized bysellers, due to differences in thetaxpayers' accounting methods.

Therefore. Congress developednew sets of rules which will relatethe safe harbor and imputationrates to an "Applicable FederalRate'" and will require matchingof expense and income treatmentbetween taxpayers in many in­stances.

The Applicable Federal Ratewill be determined by theTreasury at six month intervals forshort term, mid-term and longterm obligations.'

A recent article in The ArkansasLawyer discussed how the Appli­cable Federal Rate applies toloans between related tax­payers.~ Certain loans mustcarry interest at 100"10 of the Appli­cable Federal Rate in order toavoid gift or compensation treat­ment. The rule is somewhat dif­ferent with respect to sales trans-

actions. Where an installmentobligation is received in ex­change for property, the install­ment obligation must bear inter­est at 110"10 of the ApplicableFederal Rate to avoid unstated in­terest treatment.' If the interestbeing charged is less than 110"10 ofthe Applicable Rate. unstated in­terest will be present and interestwill be imputed at 120"10 of the App­licable Federal Rate.'

Congress carved out a few ex­ceptions to the new rule when theAct was passed, and then passedadditional legislation which tin­kered with the concept further.First. the Act continues the 7%maximum imputed interest ratefor land transactions between re­lated individuals involving$500,000 or less.' Second. in thecase of sale of a farm for less than$1.000.000. the safe harbor and im­puted interest rates under priorlaw continue to apply.' Third, inthe case of a sale of a principleresidence. the rates under priorlaw continue to apply to the extentthe purchase price does not ex­ceed $250,000." Where the pur­chase price exceeds $250,000, acombination of old and new ratesapplies.

After the Act was passed. thenew deferred payment rules re­ceived a tremendous amount ofcriticism. and their future is nowsubject to some doubt. Late in theCongressional session an interim

Editor's Note:

Michaela. Parker is a partnerin the Davidson. Horne. Hollings­worth Law Firm in Little Rock. Heis a graduate of Vanderbilt Uni­versity in Nashville. TennesseeIBA-Economics. 197J) and a 1973honors graduate of the Universityof Arkansas School of Law inFayetteville. where he served onthe Board of Editors of theArkansas Law Review. He present­ly serves as vice-chair of the Sec­tion of Taxation of the ArkansasBar Association and on the South­east Regional Internal RevenueService-Bar Association LiaisonCommittee.

This artlcJe is one of a continu­ing series by members of the Sec­tion of Taxation in its effort to keepthe membership informed and upto date on important develop­ments in tax law.

April 19a5/Arkansas Lawyer/a9

Page 40: APRIL 1985

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"transitional rule" was passed(P.L. 98-612)" which altered andpartially suspended the use of theApplicable Federal Rate to deter­mine if unstated interest is pres­ent on a temporary basis. UntilJuly I. 1985. the 9"10 safe harbar.and 10% imputation rates will stillapply for transactions where theborrowed amount is $2.000,000 orless. Where more than $2.000,000is involved. a combination of thetwo concepts is used. 12

Assumptions of Debt. It is impor­tant to keep in mind that the newdeferred payment rules apply toassumptions of existing debt aswell as new borrowings. The ac­tual mechanics ot application willbe clarified by regulation. How­ever, P.L. 98-612 contained anotherchange which made this provi­sion inapplicable to debt obli­gations issued before October 15,1984. on a permanent rather thaninterim basis. I:!

ACRS Recovery Period. The ac­celerated cost recovery system("ACRS") was added in 1981 as animportant part of Economic Re­covery Tax Acl. Under ACRS, mostreal property placed in serviceafter 1980 could be depreciatedover a period as short as fifteenyears. The Act increases the re­covery period for commercial andresidential real property. with theexception of low income housing.to eighteen years." The longer re­covery period is also applicable toadditions to an existing structure.even if the existing structure qual­ified for fifteen year ACRS depre­ciation. Other minor changes incalculating the amount of the an­nual deduction under ACRS werealso made. to be implemented byTreasury regulation.Provisions Affecting Construction

and Rehabilita1ionDemolition Deductions Dis­

allowed. Under prior law. therewas a general rule that costs andother losses incurred in connec­tion with the demolition of a build­ing qualified as losses and couldbe deducted when incurred. How­ever, there was a general excep­tion to the rule that such costs andlosses could not be deducted andmust be added to the basis in theland, if the land and buildingwere purchased with the intent todemolish the building. fn addi­tion. pior to 1984, no deduction

SO/Arkansas Lawyer/April 1985

was allowed with respect to anycosts or losses associated with thedemolition of a certified historicstructure. All such costs andlosses had to be added to the tax­payer's basis in the underlyingland and could not be expensed,depreciated or amortized.

The Act eliminates any deduc­tion for costs or losses associated.with demolition of any structureand applies the old rule for cer­tified historic structures to the de­molition of any structure, whethercertified historic or nol." There­fore. in the future. taxpayers willnot be able to allocate a portion oftheir purchase price of property toa building and later deduct theirbasis in the building when it is de­molished.

Removal of Architectural Bar­riers. For a period of time prior to1983. a special deduction of up to$25,000 was allowed for expensesincurred during a taxable year inremoving architectural barriers tothe handicapped or elderly. Thisprovision was rather narrow inscope because it could not beclaimed in connection with a gen­eral renovation of abuilding.

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Further. it only applied to removalof certain specific types of bar­riers set out in the regulations.The Act reenacted this provisionand increased the deduction to$35.000 per year for expenses in­curred during 1984 and 1985."However. the previous limitationson the scope of the provision willcontinue to apply.

Construction Interest andTaxes. There has been a generalrule that interest and taxes in­curred while a project is underconstruction cannot be deductedas expenses. Instead. these ex­penses must be capitalized andamortized over a ten year pe­riod. 17 However. this rule does notapply to construction of low in­come housing. and other projectswhich the Congress classified asnot suited for profit making ac­tivity. In the past, another excep­tion has allowed interest andtaxes incurred by corporations(but not individuals or partner­ships) in connection with theconstruction of residential prop­erty to be deducted. These rulesappear to have come /rom anattempt by the Congress to bal-

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ance a concern for construction ofadequate housing during the1970's, with a concern that largeconstruction period deductionsnot be available to tax shelterpartnerships or individuals undermost circumstances.

In any event. the Act eliminatesthe exception which allowed de­duction of interest and taxes in­curred by corporations during theconstruction period of residentialreal estate. 18 However, the excep­tion for low income housing andother "not for profit" activities con­tinues to be available for all tax­payers.

Rehabilitation Expenditures forLow Income Housing. Prior to Jan­uary 1, 1984, a taxpayer couldelect to amortize up to $20,000 ofrehabilitation expenditures perunit of low income housing over asixty month period. Individualapartments qualified as unitsunder this rule. Congress ex­tended this rule for three yearsthrough December 31. 1986." Thisreflects the continued concern byCongress for the rehabilitation oflow income housing and use ofthe tax laws to divert private sec­tor monies to projects of this type.The amount which may be amor­tized is also increased to $40.000per dwelling unit if the project iscertified by HUD or some othergovernment subdivision and cer­tain other criteria are met.

New Rule For RehabilitationTax Credit. Under current law. thegovernment will pay 15% to 25% ofthe costs of rehabilitating build­ings for business or other non­residential purposes. through taxcredits. This is a valuable tax ben­efit which has been used in the re­habilitation of downtown busi­ness districts and other propertiesin Arkansas. One of the criteriafor claiming the credit has beenthat 75% or more of the existing ex­ternal walls of the building mustbe retained.'" This apparentlycreated problems for some proj­ects where the external wallswere not load bearing walls andwere irregularly shaped. The Actprovides an alternate test whichwill allow other factors to be con­sidered under certain circum­stances. Under the new text. thecredit will be available if: 50% ofthe existing external walls are re­tained as external walls; 75% ofthe existing external walls are re-

tained as either external walls orinternal walls; and at least 75% ofthe internal structural frameworkis retained. 21

Provisions Effecting Rentaland Leasing

Accounting For Variable Pay­ment Leases. The differences intax treatment between accrualand cash basis taxpayers haveprovided a number of tax plan­ning opportunities over the years.One of these has been in the leas­ing arena. A cash basis lessor isonly required to recognize leasepayments as income when thepayment is actually received.even if the lease provides for un­reasonably low payments in theearly periods and unreasonablyhigh payments in the later periodsof the lease.

On the other hand, an accrualbasis lessee deducts rent whenthe obligation becomes fixed.even though the actual cash pay­ment is deferred under the lease.Further. if a cash basis lessor soldproperty on which a large amountof rent had accrued was not yetdue. this could make the propertymore valuable to the buyer andallow the seller to convert ordi­nary income into capital gain. TheCongress used the "complexifica­tion" approach to address thisproblem in instances where thetotal aggregate considerationunder a lease exceeds $250.000and any of the payments eithervary in amount or are deferredmore than one calendar year. n

The new rules will not applywhere rent variations are due tocommon commercial reasons. Ex­amples are variations determinedwith reference to price indices;rents based on a percentage oflessee receipts; reasonable rentholidays; and changes inamounts paid to unrelated thirdparties for such things as utilitiesand maintenance. However,where variations exist for otherreasons, the actual payment andreceipt of rent and the accountingmethod used by the taxpayer willbe largely irrelevant.

Under the Act. the lessor mustinclude two items in income eachyear regardless of actual receipt:accrued rent and interest on rentpreviously accrued which re­mains unpaid. The amount of ac­crued rent each year will be theamount allocated to the taxable

year under the agreement be­tween the lessor and lessee, plusthe present value of a portion ofcertain types of consideration tobe paid later. Where the agree­ment is silent on the allocation ofpayments. rents will be spreadequally over the term of the lease.Rents will also be spread equallyover the term of the lease wherethe agreement is part of a saleand lease back transaction. or is along term lease which has taxavoidance as a principal purpose.The criteria for determining whena transaction has tax avoidanceas a principal purpose is largelyleft to the Internal Revenue Ser­vice and will, no doubt. providefertile ground for controversy.

Interest on rent which has pre­viously accrued but which re­mains unpaid will also be re­quired to be taken into income bythe lessor annually. Interest is at110"10 of the Applicable FederalRate compounded semi-annually.This does not mean that addi­tional amounts not provided for inthe lease must actually be paid asinterest. However. it is presentlyunclear whether this provisionwill merely affect the timing fortax purposes of payments actu­ally made. or will instead result ina total income to the lessor andtotal deductions to the lessee inexcess of the total rental amountsprovided. It is hoped this concernwill be clarified and eliminatedby regulation. Further, the effectof this new provision on lease­purchase arrangements needs tobe clarified.

Exempt Entity Leasing. Anotherinnovative tax planning op­portunity has been the purchase.renovation and lease back of pub­lic property by private investors.A recent attempt to use this tech­nique which received wideattention in Arkansas was the pro­posed plan to renovate the OldMain Building at the University ofArkansas at Fayetteville. Underprior law, a private investor couldpurchase a public building andwrite off the purchase price overfifteen years under ACRS; ren­ovate the building with the gov­ernment paying 15%, 20% or 25%of the renovation costs pursuant totax credits; and take advantage ofother planning opportunitieswhich were available to reducethe economic cost of the project.

April 1985/Arkansas Lawyer/9l

Page 42: APRIL 1985

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The Act reduces or eliminatesthese benefits under most circum­stances. 23 The new limitationswill apply under several circum­stances. including where a pur­chase and lease back areinvolved; the tax exempt entityuses the property under a leasewith a term in excess twentyyears; or the tax exempt entityuses the property under a leasethat contains a fixed or determin­able price purchase option. If anyof these circumstances are pres­ent, the tax benefits previouslyavailable will be removed, no re­habilitation credit will be allowedand the property must be depreci­ated over the greater of forty yearsor 125% of the lease term.

Some planning opportunitieswill still be present where a gov­ernmental entity is interested inleasing or acquiring facilities ithas not used previously andwhere the versatile nature of thebuilding will allow the owner tobe reasonably protected even ifthe building is leased for a periodof less than twenty years withouta purchase option. However, suchrestrictions will substantiallylimit the rehabilitation of existinggovernment buildings by privateinvestors.Provisions Affecting Disposition

of RealtyThe changes in the law with re­

spect to the disposition of realtyappear to have importance tomany more taxpayers than theconstruction and rehabili lotion orleasing provisions. The twochanges associated with businesstransactions are very onerous,and a change associated withgifts or bargain sales to charitieswill cause additional expenseand compliance headaches. Theone beneficial change is with re­spect to property settlements ondivorce, which will be discussedin an upcoming issue of TheArkansas Lawyer.

Depreciation Recapture on In­stallment Sales. One of the morecostly provisions of the Act dealswith a new rule on the recaptureof depreciation. When a taxpayersells property which has been de­preciated at a gain, some of thisgain may be treated as ordinaryincome under rules governing therecapture of depreciation. With re­spect to real property, severalrules apply which will classify

92/Arkansas Lawyer/April 1985

from none to all of the deprecia­tion taken as subject to recaptureat ordinary income rates, depend­ing on the type of real estateinvolved and the type of deprecia­tion method which has been used.Under prior law. when propertywas sold on an installment basis,recapture was recognized aspayments were made over theyears of the installment sale.Under this approach, cash wasgenerally available to pay anytaxes resulting from the transac­tion, over time.

Under the Act. all taxes result­ing from the recapture of deprecia­tion at ordinary income rates willbe due in the year the transactionoccurs, even if the transactionqualifies as an installment sale. 24

Any gain in excess of the re­capture income will continue to berecognized under the installmentmethod.

This change will have a sub­stantial impact on the structure ofinstallment sales. It will be veryimportant to obtain a cash down

payment sufficient to cover thetaxes which will be due in the firstyear of the transaction unless thetaxpayer is willing to be out ofpocket for taxes.

Like Kind Exchanges. It is gen­erally recognized that a taxpayercan avoid tax on the disposition ofproperty if he receives like kindproperty in exchange in the trans­action. Under prior law, there wasno specific requirement that anyexchange be completed when asubject property was transferredor within any set period thereaf­ter. As a result, various types ofescrow arrangements and trustswere used to allow the taxpayer todirect the reinvestment of sale pro­ceeds and then receive the newlyacquired property as part of theexchange transaction. Congressclassified this as "too good to betrue." The Act provides that anyproperty received by the taxpayermore than 180 days after the dateon which the taxpayer transfersproperty. or the due date of thetransferor's tax return (whichever

Page 43: APRIL 1985

occurs earlier) will not qualify aslike kind of property.~ In addi­tion, the property to be receivedmust be designated by the tax­payer within 45 days of the datethe transferred property is re­linquished. This designationrequirement may be satisfied ifthe contract between the partiesspecifies a limited number ofproperties which may be trans­ferred. with the particular prop­erty to be determined by con­tingencies beyond the control ofboth parties. Regulations will beimportant to develop the Treasuryposition on contingencies whichqualify for this purpose.

Appraisals For Gifts of Prop­erty. During 1983, a group of mu­seum curators. art dealers andother experts who make up thespecial IRS Arts Advisory Panelexamined taxpayers' evaluationsof 223 donated works of art andfound that more than half re­quired adjustment. These workswere over valued by an average of671%.s Studies such as this pro­vided the impetus for a new provi­sion in the Act which will requirewritten appraisals of charitablecontributions of property in many

instances. The Act requires thatthe Treasury issue regulationswhich will require any individuaLclosely held corporation, or per­sonal service corporation claim­ing a charitable deduction forproperty to obtain a qualified ap­praisal of the property contrib­uted, attach a summary of the ap­praisal to the return on which a de­duction is first claimed for suchcontribution, and include certainother information prescribed byregulation.'" This rule will applyif the charitable gift or gifts ex­ceeds $5000 in the aggregate.

Regulations will also requirethat the appraiser be independentof both the donor and donee andthat the appraiser's fee not bebased on a percentage of the ap­praised value of the property. Theappraiser can be assessed a pen­alty of up to $1000 for aiding orassisting in the preparation or pre­sentation of an appraisal result­ing in an understatement of taxliability and can also be barredfrom offering evidence before theInternal Revenue Service. Fur­ther, if the value of the giftclaimed on the return is 50"10 ormore greater than the actual

value as determined by a court orsettlement agreement. the tax­payer is required to pay a penaltyequal to 30"10 of the understate­ment of tax. There is very limitedauthority to the Treasury to waivethis penalty.

This article provides an over­view of the impact of the Act onmany types of common real estatetransactions and also illustratesthe present Congressional focuson the tax treatment and planningopportunities afforded real estatetransactions. Congress will con­tinue to address the issue ofbroadening the tax base and truetax reform in 1985 with a serious­ness not seen in recent memory.Proposals which are presentlybeing considered range from theelimination of interest deductionsand beneficial capital gains taxrates to a modified flat tax andother more innovative proposals.Both the discussion and adoptionof such changes can be expectedto have substantial impact on thereal estate market and will effectboth property values and thestructure of transactions in thefuture. A review of the Tax ReformAct of 1984 illustrates how the com-

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plexity of our present tax structurecontributes to this mood for re­form. 0

FOOTNOTES

1 There are other provisions inthe Act which affect real estatetransactions. but where thefocus is on the nature of the par­ties to the transaction ratherthan on whether realty is in­volved. Examples are trans­actions involving foreignpersons. the dissolution andliquidation and swapping of in­terests in partnerships and sim­ilar types of transactions.

, Reg. §1.483-1 (d) (I) (ii) (C)., Act §4I(a); Code §1274.• Id., Westbrook. "Congress

Changes The Rules For Low­Market Loans." 19 ArkansasLawyer Vol. I, p. 41 (1985).

• Act §41 (a); Code §1274 (c) (3)., Act §41 (a); Code §1274 (b) (2).• Act §41 (b); Code §483 (I)., Act §41 (a); Code §1274 (c) (4) (A)." Act §41 (a); Code §1274 (c) (4) (C)." CCH. Standard Federal Tax Re-

porter. '16722 (1984)." PI.. 98-612. §2." Id." Act §1lI; Code §168." Act §1063; Code §280B." Act §1062; Code §190(d)." Code 189." Act §93; Code §189(d)." Act §1064; Code §167 (K)... Code §48 (g) (I) (A) (iii)." Act §1043; Code §48 (g)." Act §92; Code §467." Act §31; Code §§48.168." Act §112; Code §453(il.~ Act §77; Code §1031.'" Matthew Bender. Analysis of

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Page 46: APRIL 1985

By Norwood Phillips

In the past several years, a num­ber of states have considered andadopted an 10LTA (Interest onLawyers' Trust Accounts) program,at the urging of state and local bargroups and bar-related or­ganizations. On September 17,1984, the Arkansas Supreme Courtunanimously approved the repeti­tion of the Arkansas Bar Associa­tion to establish a voluntary 10LTAprogram.

In approving the concept of10LTA, the Court reversed its priordecision by holding that client con­sent is not an element of the 10LTAprogram. However, the client mustbe informed of the program.

At the present time, there are10LTA programs in 29 states. Theinterest income received. hasranged froni a low of $1,500 inIdaho (implementation date of Jan­uary L 1984) to a high of $4,900,000in California (implementation dateof March L 1983). It is readily ap­parent that even though the resultshave been uneven due to such fac­tors as population and implemen­tation dates, the potential for gen­erating funds for public needs andprojects is present.

The Internal Revenue Service, inRevenue Ruling No. 81-209, has de­termined that interest incomeearned· on lawyers' trust accountsunder the Florida 10LTA programwill not be taxable income to theclients. The key to the determina­tion by the Internal Revenue Ser­vice is that the client cannotcontrol by consent or veto whetherhis or her nominal or short-termfunds may be placed by the

Editor's Note:

Norwood Phillips, of El Dorado,is a member of the Shackleford,Shackleford & Phillips, P.A. lawfirm. He is chair of the Interest onLawyers' Trust Account ([aLTA)Education and Recruitment Sub­committee.

96/Arkansas Lawyer/April 1985

BULLETIN

IOLTA UPDATE

attorney in an 10LTA account. Ifclient consent were required, thenunder the long standing doctrine of"assignment of income," the clientwould be taxed on the income.Further requirements are that theorganizations receiving the 10LTAincome must be tax exempt underSection 501(c) (3) of the Internal Rev­enue Code, and such must be usedfor approved, charitable and pub­lic service purposes which mustcomport with the applicable tradederegulations and revenuerulings.

The Supreme Court, in its deci­sion approving 10LTA, establishedten guidelines as follows:

I. Interest be made availableunder the program only on avoluntary basis.

2. No earnings from the fundsmay be made available to theattorneys or firms.

3. Clients may specify that theirfunds are to be deposited in in­terest-bearing accounts fortheir benefit as long as thesefunds are neither nominal inamount nor to be held for ashort period of time.

4. Although client consent is notan element. attorneys and lawfirms participating in the pro­gram must inform their clientsof their participation by send­ing to each client a notice inthe form prescribed by the Su­preme Court.

5. Clients' funds which are nomi­nal in amount or to be held fora short period of time by attor­neys and law firms not par­ticipating in the 10LTA pro­gram must be retained innoninterest-bearing, demandaccounts.

6. An Arkansas nonprofit corpo­ration must be founded to re­ceive the interest earnings.The Board of Directors shall becomprised of the chief justiceand two associate justices,five members of the lay publicappointed by the governor (ofwhom three shall be repre-

sentatives of low income per­sons), three lawyers ap­pointed by the president of theArkansas Bar Association,and the president of theArkansas Bar Association.With the exception of the mem­bers of the Supreme Court andthe president of the Associa­tion, terms of the directors areto be on a staggered basis.

7. The nonprofit corporation is re­quired to obtain IRS cer­tificates of exemption from in­come taxes as necessary toinsure that no participatinglawyer or any affected clientwould be charged with ortaxed upon any interest paidon funds in a trust accountused in participation with theprogram. The corporation ischarged with the duty of allo­cating net income as follows:

8. The individual lawyer shouldnotify his bank of intention toparticipate in the program inwriting. Tbe bank then shouldtransmit interest earnings di­rectly to the corporation, mak­ing period reports of earningsand disbursements to thelawyer. The bank is permittedto make reasonable chargesfor such services against theinterest earnings of the re­spective accounts.

9. The determination of whethera client's funds are nominal inamount or to be held for a shortperiod of time rests in thesound judgment of eachlawyer or law firm.

10. The Court reserved the prerog­ative of imposing additionalguidelines as to what con­stitutes funds "held for a shortperiod. of time" or funds"nominal in amount."

Herman L. Hamilton, Jr., of Ham­burg, has chaired the Committeesince its inception. Following ap­proval of the concept. PresidentWilson appointed Larry Yanceyof Little Rock to chair the Techni­cal Implementation Subcommittee

Page 47: APRIL 1985

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A corporation named ArkansasIOLTA Foundation, Inc. has beenformed, and it has applied for ap­propriate IRS certificates of exemp­tion. By the time this article is pub­lished, it is anticipated that the IRSapproval will have been obtainedand the funding commenced.

Joe Irwin and Ron Clark of LittleRock are members of the Sub­committee chaired by LarryYancey. William D. Haught ofLittle Rock and Richard L. Ramsayof Pine Bluff are members of theSubcommittee chaired by Nor­wood Phillips.

and Norwood Phillips of El Doradoto chair the Education and Recruit­ment Subcommittee.

After the IRS approves the plan,it is contemplated that participa­tion in the program can be ob­tained by the stroke of a pen. Theparticipating lawyer (or law firm)will simply notify, on a form fur­nished by Arkansas IOLTA, Inc.,his depository bank of his inten­tion to be a part of the IOLTA pro­gram. This singular act will permitthe depository bank to make peri­odic distributions of interest in­come to IOLTA for so long as thetrust account is maintained. Anominal fee may be charged by thebank, but this fee will come frominterest income. The participant isrequired to make neither IRS fil­ings nor reports. He simply mustnotify his clients who have fundson deposit in his trust account ofhis participation. A joint com­mittee of the Arkansas Bankers'Association and IOLTA will final­ize the anticipated procedure.

While Arkansas is a relativelypoor state economically, it is richin legal heritage and tradition.There has heretofore been an ur­gent need for additional funds toprovide legal services for the poorand other law-related public pur­poses. Our IOLTA program, as evi­denced by the experience of otherstates, will become a significantsource for such funding. It is sub­mitted that the IOLTA program inArkansas will be another factor inhelping Arkansas retain its posi­tion as a leader within the legalprofession. 0

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Page 48: APRIL 1985

EXECUTIVE DIRECTOR'S REPORT

And the Snows Came . . .

By William A. Martin

FIRST WEATHER CANCELLA­TION IN 15 YEARS - That is whathappened to our Family Law Sec­tion program on "The GrowingFederalization of Divorce andFamily Law," planned forFebruary 1-2. It has been re­scheduled for Friday, June 7, dur­ing the annual meeting.

Calling off a program that hashad so much effort put into it isnever easy. With speakers com­ing from New Jersey and Wiscon­sin, our decision early Thursdaymorning was made while only avery fine snow was falling. Wethought, "What if the weather fore­casters aTe wrong and we doo'thave snow?". When Fridaydawned with 7 inches of snow inLittle Rock we knew we made theright choice. Ben Rowland, whohad knocked himself out prepar­ing an outstanding program, hadto have been terribly disap­pointed. He got on the phone andcaught one speaker, William M.Troyan, before he left Red Bank,New Jersey. He caught the other,Allan R. Koritzinsky, at O'HareAirport in Chicago. Members ofour stafl. Virginia Hardgrave andBarbara Tarkington, spent most ofthe day calling those who regis­tered in advance to tell of the post­ponement.

This experience points up acouple of advantages of pre­registration. We were able to con­tact pre-registrants about the post­ponement and. those who hadordered the new Volume II to theDomestic Relations System willget it at the seminar price and gettheir registration fee refunded, toboot.

Other members can buy thiswealth of information on how re­cent federal legislation impacts

98/Arkonsas Lawyer/April 1985

family law, plus an update to theoriginal volume for $75, plus $3 forpacking and mailing costs.

Your Association is embarkingon a most exciting and importantyouth education effort. With fund­ing from the Arkansas Bar Foun­dation, the Association will leasethe "Ways of the Law" in­structional television program onour system of justice. "Ways of theLaw," and a lesson guide to becompiled by the Young Lawyers'Section, will reach the state'sschools beginning with the Fall1985 semester.

These IS, 20-minute programswill be broadcast over theArkansas Educational TelevisionNetwork to high schools for video­taping. They can be used incivics. government, history. fami­ly living, economics or other ap­propriate classes. The 15programs are about the right num­ber to use each week for a semes­ter.

Developed in South Carolina,"Ways of the Law" has been en­thusiastically received both thereand in Louisiana, where the statebar associations co-sponsored theprograms. A survey in Louisianashowed it the most widely usedvideo program in their secondaryschools in the fall of 1982.

When these programs getstarted in Arkansas, you may beapproached by teachers or princi­pals with an invitation to speak toand lead one or more of theirclasses centered around the ser­ies. We hope you will say "yes" tot~eir request. The students willgreatly benefit from having con­tact with a lawyer and you will bemaking a contribution to ouryouth having a better apprecia­tion of the need to respect andobey our laws.

Martha M. Miller, our newlobbyist for the Association, is

busy pushing the Association'slegislative package and theAssociation's position on otherbills. She also has a big job goingthrough all the bills filed to decidewhich ones are of general interestto the membership and then boil­ing down their descriptions to areasonable length.

The Legislative Newsletter willbe useful in letting you know whatis being considered by the Leg­islature.

We welcome your suggestionson how we can serve you better.

You may have read the articleby UALR Law School ProfessorRichard K. Burke in Volume 38,Number 1 of the Arkansas Law Re­view entitled "Truth in Lawyer­ing'; An Essay on Lying and Deceitin the Practice of Law." The LawReview is one of the publicationswhich you get with your member­ship in the Arkansas Bar Associa­tion.

Dr. Burke and the article werethe subject of a feature article inthe Arkansas Gazette and of a talkshow on radio station KAHN. Heraised some troubling questionsabout the ethics of our professionthat we should give our thoughtfulconsideration. He points out mostlawyers are honest. fair and bar­gain in good faith and asks whywe should protect those who arenot. He gives numerous examplesof the harm those who lie, deceiveor countenance clients doing sodo to society, to the legal profes­sion and to themselves. Through­out the article he makes a persua­sive plea that rigorous pursuit ofhonest, good faith, and fairness isa duty owed to the profession andsociety that is prior to any dutyowed an individual client and ourcodes of ethics should unequivo­cally say so.

If you have not read the article, Icommend it to your attention. 0

Page 49: APRIL 1985

YOUNG LAWYERS' UPDATE

'Ways of the Law' on AETN

Martha M. Miller, Chair

This year's Trial Practice Semi­nar ought to be of the best yet. Thefourth annual event, scheduledfor April 4-6, 1985, at the ArlingtonHotel, will feature Judge WilliamR. Overton, U.S. District judge forthe Eastern District of Arkansas,Nicholas H. Patton, a trial at­torney from Texarkana, and MaryWolff, a trial attorney from Mem­phis. Jim Simpson, Little Rock,and Bob Ridgeway, Hot Springs,have done an excellent job of or­ganizing this event. The programwill begin with an informal recep­tion for those arriving early onThursday evening. Our speakers'presentations are scheduled forFriday and Saturday morningsand will conclude in plenty oftime for registrants to get to Oak­lawn Park before the daily doublewindow closes.

If you haven't already pre­registered, you may register at thedoor. For more information, callSandy Casteel at the AICLE office.Her number is 371-2024.

Other YLS seminars were heldFebruary 16 in Little Rock andMarch 2 in Fayetteville to assistlocal bar associations with Na­tional Law Week activities. Sincemost Law Week activities are pre­sented at the local level, theYoung Lawyers' Section LawWeek Committee began last yearto focus their efforts on providingtechnical assistance to local barassociations so that Law Week ac­tivities could be tailored to theneeds of individual communities.Tom Ray, Little Rock, and JohnMoore, Little Rock (formerly ofMountain Home), have done anoutstanding job coordinatingthese efforts. The Arkansas BarFoundation also deserves creditfor this program. Without theirgenerous financial support thisprogram would not be possible.

Another seminar which the YLSwill be working on is the annualFall Legal Institute presented byAlCLE. This seminar, scheduledfor September in Fayetteville, willfeature the Criminal Law Hand­book which should be hot off thepress in June. Sam Perroni. YLSCommittee chair, has put togetheran impressive publication. Samwill also serve as program coor­dinator of Fall Legal.

In addition to these continuingprojects, YLS has recently initi­ated two new projects of major im­portance. The first is the State­wide Mock Trial Competitionwhich will be held April 27. Teamsof high school students will becompeting at both regional andstate-wide levels. This project ischaired by Terry Derden of LittleRock.

The second new project is ayouth education project called"Ways of the Law." A series of IS,twenty-minute videotaped pro­grams will be aired on AETN dur­ing the 1985-86, 1986-87, and 1987­88 school years and accompaningteachers guides and student hand­books will be distributed by AETNin cooperation with the ArkansasDepartment of Education. The pro­grams trace the roots of law, looksat why we need law, examinesthe criminal process and law en­forcement, and discusses familylaw, wills and estates, contract!consumer law, civil law, environ­mental law, and due process. Theprogram was developed by theSouth Carolina Education Depart­ment and has been aired in al­most 30 states with great success.Martha Jean McHaney, LittleRock. will chair this effort. Again,a special thanks goes to theArkansas Bar Foundation for fund­ing this project.

Two recent YLS appointments toAmerican Bar Association posi­tions deserve mention. Frank C.Elean, II of Harrison, has been

appointed as the ABA YoungLawyers' Division liaison to Judi­cial Administration Division Law­yers' Conference, and Carl A.Crow, Jr. of Hot Springs, has beenappointed as the ABA YoungLawyers' Division liaison to theForum Committee on Franchis­ing. Both Frank and Carl are pastchairs of the Arkansas YLS.

This is the last YLS Update youwill receive before the AnnualMeeting in Hot Springs on June 5­8, 1985. The Young Lawyers' busi­ness is scheduled during the after­noon of Thursday, June 6. At thattime, we will be electing officersfor the '85-86 Bar year. I urge eachof you to attend and participate inthis process. D

Liberty&JusticeLiberty&JusticeLiberty&JusticeLiberty& JusticeLiberty&JusticeLiberty& JusticeLiberty& JusticeLiberty&JusticeLiberty&JusticeLiberty&JusticeLiberty&JusticeLiberty&JusticeLiberty&JusticeLiberty&JusticeLiberty&Justice

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April t985/Arkansas Lawyer/99

Page 50: APRIL 1985

ARKANSAS BAR FOUNDATION

Foundation Funds Educational Programs

By Robert L. Jones, III

In 1984 the Arkansas Bar Foun­dation began the annual award ofa research fellowship for a profes­sor at both the University ofArkansas School of Law at Fay­etteville and the University ofArkansas School of Law at LittleRock. The grant enables the pro­fessor to undertake research andstudy during the summer months.The Foundation is pleased to re­port on these two research fellows.

The 1985 research fellow for theU of A School of Law at Fayette­ville is Robert B. Lellar. The fel­lowship will enable ProfessorLellar to write a law review articleon the discovery and use of fed­eral regulatory evidence inprivate litigation. The 1985 Foun­dation research fellow at theUALR School of Law is Glen Pas­vogel. Professor Pasvogel plans toresearch mortgage law inArkansas and draft a set of formsfor use in mortgage law practice.The Foundation is proud of the ser­vice to the legal profession exhib­ited by these two research fellow­ships.

The Foundation is continuing tofund other educational causes. Atthe meeting on January 17, 1985,its Trust Committee approved agrant of $2,275.00 to the YoungLawyers' Section of the ArkansasBar Association for the purpose offunding a statewide law weekproject.

The Foundation is pleased to re­port that it has awarded $1.000.00to the Young Lawyers' Section toassist in the distribution of theSenior Citizens' Handbook, Dur­ing the past, the Foundation hasmade possible the printing of65,000 copies of this handbook.This has been one of the most suc­cessful projects of the Foundationin the last few years.

IOO/Arkansas Lawyer/April 1985

The Foundation has allocated$5,665.51 to the Arkansas BarAssociation for such matters as:

a. The distribution of a specialbrochure familiarizing Arkansaslawyers with interest on lawyers'trust accounts;

b. A reprinting of the bookletentitled, How Do Lawyers SetTheir Fees:

c. A reprinting of the booklet en­titled, Marriage and the Law:

d. A reprinting of the bookletentitled, Small Claims Court inArkansas: and

e. A reprinting of the bookletentitled, The Reporter's Guide toLegalese,

The Foundation is most pleasedto report that it has granted$4,610.00 to the Young Lawyers'Section for a youth education proj­ect entitled "Ways of the Law."This project is to fund the "Ways ofthe Law" video program which isan instructional guide for teach­ers. It is designed to acquainthigh school students with areas ofthe law they are likely to comeinto contact with as adults. Theprogram traces the roots of thelaw, looks at why we need law, ex­amines the criminal process andlaw enforcement and discussesfamily law, wills and estates, con­tracts/consumer law, civil law, en­vironmentallaw and due process.

The Foundation manages andprovides income from fundswhich have been contributed forscholarships to students at boththe Fayetteville law school andthe UALR School of Law. The fol­lowing is a list of current scholar­ship recipients at the University ofArkansas School of Law at Fay­etteville.

Friday, Eldredge & Clark ­Gary Fogleman;

Harry P. Warner - Dave Jacob­son;

C. R. Warner-Garland Yarber;Rather, Beyer & Harper ­

Cynthia Rodgers;

Edward Lester - Mark Long;Henry Woods - Steve Gilbert;R. A. Eilbott. JI. - Michael Lee

Murphy;Arkansas Bar Foundation

Cindy Ann Falls;Arkansas Bar Foundation

Robert Montgomery;Judge John Miller - Dana Dean;Bud & Bernard Whetstone ­

Thomas Kase;Judge John Fogleman - Pa­

tricia Jackson;Col. C. E. Ransick - Addie

Burks;Fellowship Recipient - Lonnie

R. BeardThe following is a list of current

scholarship recipients at the Uni­versity of Arkansas School of Lawat Little Rock.

Friday. Eldredge & Clark (JerryT. Light) - Kenny W. Henderson;

Friday, Eldredge & Clark (BoyceR. Lovel - Larry K. Cook;

Harry P. Warner JamesPender;

Cecil R. Warner JamesPender;

Rather, Beyer & Harper ­Ronnie F. Craig;

Edward Lester- Vicki Sandage;Judge Henry Woods - Oscar

Jerome Green;R. A. Eilbott, JI. - Paul Dicker­

son;E. Charles Eichenbaum

Robert Ivan Bland, Mary M. Belland Debra L. Cagle;

Arkansas Bar Foundation ­Lynn F. Plemmons;

Rose Law Firm - Scott Lan­caster;

U. M. Rose - David Schoen;Judge John A. Fogleman ­

David O. Bowden;Judge 1. Smith Henley - Rita S.

Looney;Bud & Bernard Whetstone

Wanda C. Wyeth;Colonel C. E. Ransick - S.

Randolph Looney;Fellowship Recipient - Arthur

Murphey 0

Page 51: APRIL 1985

IN-HOUSE NEWSLaw Schools, AIeLE and House of Delegates

UNNERSITYOFARKANSASSCHOOL OFLAW ATFAYETTEVILLE

By J. W. Looney

Expansion OfWaterman

Hall

Construction is under­way for a major expan­sion of Waterman Hall.The expansion is de­signed to provide cru­cially needed libraryspace, and, in the pro­cess. some renovation ofthe original portion ofWaterman Hall. The lib­rary addition to Water­man Hall. completed in1974, was designed forlibrary holdings slightlyin excess of 100,000 vol­umes. The current hold­ings have expanded toapproximately 185,000volumes and, thus, thespace is no longeradequate to accommo­date both the libraryholdings and the needfor study space forstudents.

In addition to theadditional space for theRobert A. and VivianYoung Law Library, anew faculty research li­brary will also be in­cluded along with addi­tional classroom spacefor computer training. In

addition, two smallcourtrooms and a newarea for the legal clinicwill be provided. Rear­rangement of secre­tarial staff work areaand administrative of­fices will also be in­cluded as a part of theproject. Construction isexpected to be com­pleted by the 1986Spring Semester.

Faculty Activities AndPublications

Lonnie R. Beard (whoteaches courses in fed­eral taxation, taxation'of estates, gifts, andtrusts, agricultural tax­ation, and farm estateand business planning)along with 1983 gradu­ate Pati L. Hoffman havean article in the Ar­kansas Law Review:"Selected Tax IssuesArising During the De­velopment Stage ofOrchards, Groves andVineyards."

A chapter entitled "NoTask for the Short­Winded" written by Dr.Robert A. Leflar is in­cluded in a recent bookHandbook for Judges,published by the Amer­ican Judicature Society.

A new textbook co­authored by Donald B.Pedersen, director of theAgricultural Law Pro­gram, was recentlyreleased by West Pub­lishing Company. Thetext, Agricultural Law:Cases and Materials, isaccompanied by a teach­er's manual. This text­book will be used in Ag­rieul tural Law courses

in a number of lawschools.

Rodney Smolla was aspeaker at the Uni­versity of Toronto LawSchool on "Media andthe Law."

Dean's ActivitiesJake Looney was a

speaker at a meeting ofthe Great Plains Re­source Economics Coun­cil, Denver, on "WaterConflicts, How They AreAddressed by Courtsand Legislatures;" at theArkansas Seed GrowersAssociation meeting on"Water Legislation inArkansas;" at the Na­tional Association of An­imal Breeders meetingin Denver on "Tax Im­plications of EmbryoTransfers;" at an Agri­cultural Policy Forum inGainesville, Florida on"Government Regula-tion and PropertyRights;" and at a meet­ing of the American Em­bryo Transfer Associa­tion on "Legal Con­siderations in EmbryoTransfers."

UNIVERSITYOFARKANSASAT LITTLEROCKSCHOOL OFLAW

By John M. Sheffey

Alumni NewsSheffield Nelson, a

1968 graduate of the lawschool, joined the LittleRock firm of House,Wallace, Nelson andJewell on January I.1985. Nelson had servedas chairman and pres­ident of Arkansas Louis­iana Gas Company for12 years. He is now asenior partner of the lawfirm and serves as thefirm's chairman of theBoard.

Frank B, Whitbeck, amember of the 1975 grad­uating class. was recent­ly featured in ArkansasBusiness, The profile ofWhitbeck traced his ca­reer as president ofAmerican FoundationLife Insurance Com­pany, as a lawyer inprivate practice, and asfounder and chief exec­utive officer of SignatureLife Insurance Companyof America.

Numerous graduatesof tbe School of Law andits predecessors are cur­rently serving in elec­tive pasitions. Notableamong those are Sen­ator Max Howell (whohas served in theArkansas Legislaturesince 1947), Art Givens,Cliff Hoofman and DougWood, all of whom holdseats in the Legislature.Judicial posts are heldby Robert Garrett (Sa­line County chancellor)and Floyd Lofton andThomas Digby (PulaskiCounty Circuit Court),Dan Stephens (Chan­cery judge in Clinton)and J. Hugh Lookadoo(judge in Arkadelphia).Floyd "Buddy" Villines

April 1985/Arkansas Lawyer/WI

Page 52: APRIL 1985

and Tom Prince were re­cently elected to theLittle Rock City Board ofDirectors. Prince hasalso been elected toserve a two-year term asmayor of the city of LittleRock.

The monthly luncheongatherings of our Alum­ni Association continueto draw interest from ourgraduates who practicein central Arkansas. Re­cent speakers have in­cluded Judge ThomasGlaze of the ArkansasCourt of Appeals, whospoke on evaluation ofjudges; Jody Mahony, amember of the ArkansasLegislature from El Do­rado, who discussedwhat he considered thesignificant issues facingthe current session ofthe Legislature, andPhillip Carroll, a LittleRock attorney with theRose Law Firm, whogave a very entertainingslide presentation onthe trial of Lizzie Borden.Terry Derden and SherryBartley, co-programchairmen. have prom­ised further interestingprograms for the upcom­ing luncheon meetings.

Altheimer Lecture

The eleventh Ben J.Altheimer Lecture featu­red Robert Charles Cas­sidy, Jr., a partner in theprestigious Washing­ton, D.C. law firm ofWilmer, Cutler and Pick­ering, and an expert ininternational trade mat­ters. Before going intoprivate practice, he hada distinguished careerin government where heserved in the Office ofLegislative Counsel ofthe United States Senateand the staff of the U.S.Senate Finance Com­mittee. In both he speci­alized in internationaltrade and tax matters.His government career

lO2IArkansas Lawyer/April 1985

culminated with the pos­ition of general counsel,Office of the UnitedStates Trade Represent­ative, Executive Officeof the President. In thatcapacity he was the sen­ior executive branchlegal officer responsiblefor international tradematters.

His address was en­titled, "Resolving Inter­national Conflicts OverEconomic Regulation: AModest Proposal." Itwas particularly timelyfor Arkansas, because ofthe state's increasingparticipation in inter­national trade.

Faculty News

Donaghey Distin-guished Professor Rob­ert R. Wright has beenelected a fellow of theAmerican Law Institute.This is a prestigious pos­ition to which only avery few legal scholarsand practitioners are el­ected. The only otherArkansas members arePhillip Anderson (amember of the Councilof the American Law In­stitute), and the twoArkansas law schooldeans.

Professor Wright isnot teaching during thespring semester but hasbeen granted an off­campus duty assign­ment. He is engaged inwriting a treatise on theArkansas law of prop­erty. Professor Wrightalso addressed theArkansas MunicipalLeague and city attor­neys on December 15 inHot Springs on planningand zoning law.

Professor Richard K.Burke delivered the Sev­enth Annual Clark Y.Gunderson Lecture atthe University of SouthDakota School of Law.Professor Burke's topicwas, "More Judges or

Less Litigation - A Fed­eral Question?". Hisaddress will be pub­lished by the Universityof South Dakota. Pro­fessor Burke is a formerprofessor of law anddean of the School ofLaw of the University ofSouth Dakota.

Professor Burke's arti­cle, "'Truth in Lawyer­ing': An Essay on Lyingand Deceit in the Prac­tice of Law," appearedin Vol. 38 of theArkansas Law Review.

Professor Judy Lan­sky, a supervisor in theLaw School's LegalClinic, was elected sec­retary of the Board ofAdvocates for BatteredWomen.

Professor Susan W.Wright addressed theEighth Circuit Court ofAppeals as a represent­ative of Judge Henley'sformer law clerks. Theoccasion for the en banccourt session was the un­veiling of Judge Hen­ley's portraii. to be hungin the Eighth CircuitCourtroom in St. Louis.Judge Henley has nowbeen elevated to seniorstatus. Professor Wrighthas also been appointedto the local arrange­ments committee of theEighth Circuit ludicialConference, to be heldin Little Rock next sum­mer.

The American Associ­ation of Law Schoolsmet in Washington,D.C. on January 3-6. Thelaw school was well rep­resented by Dean Aver­ill and ProfessorsAdams, Gitchel. Gould,Spears, Robert Wrightand Susan Wright. Pro­fessor Adams also atten­ded the meeting of theLaw School AdmissionCouncil while he was inWashington.

A.I.e.L.E.NEWS

By Claibourne W. Patty, Jr.

The Mid-Year Meetingof the Arkansas BarAssociation, held at theCamelot Hotel in LittleRock on January 18-19,devoted one day of itsCLE portion to an inten­sive review of recent de­velopments in six areasof the law.

Under the leadershipof Robert L. Jones, m,program chairman, andProfessors L. Scott Staf­ford and Rodney Smolla,program co-chairs, thefollowing topics weredeveloped: ArkansasFederal Court Rules andCivil Procedure, byChief U.S. District JudgeH. Franklin Waters;Legal Advertising byJerry Cavaneau; Specia­lization by Richard Hat­field; Pitfalls in the Trailof Lawsuits by An­nabelle Clinton, formerPulaski County Circuitjudge, John Patterson,Circuit judge, Fifth ludi­cial Circuii. and Han.Howard Templeton,Chancery and Probatejudge, Second ChanceryCircuit; Bad FaithClaims by William H.Sutton and William R.Wilson, Jr.; and Signifi­cate Arkansas Appel­late Decisions by DavidNewbern, Arkansas Su­preme Court justice. Atotal number of 160 per­sons attended.

23rd Arkansas FederalTax Institute

The 23rd annualArkansas Federal TaxInstitute, co-sponsoredwith the ArkansasSociety of Certified Pub­lic Accountants, washeld December 6-7, 1984at the Excelsior Hotel.Little Rock.

Page 53: APRIL 1985

The faculty, consistingof lawyers and CPAs ofnational and statewideprominence.

AICLE Joins PrivateSatellite Network

On October 23, 1984,the TV Satellite Programon "Banks and Their Bor­rowers"; produced byPractising Law Institute,was shown at the UALRConference Center inLittle Rock. On March20th, a TV satellite pro­gram produced by theSection of Urban, Stateand Local Governmentof the American BarAssociation will beshown by AICLE con­cerning the topic of Gov­ernmental LiabilityUnder Anti·Trust Laws.Programs concerningthe Durable Power ofAttorney will be shownApril 24, 1985; on May8th The Lawyer Buying aComputer; on March26th, Estate Planning forthe Aged, IncapacitatedClient; on May 14th,Evaluating a PersonalInjury Case - The BrainDamaged Child; on May15th, UCC Strategiesunder articles 2-9; andfinally scheduled is BlueSky Laws produced byPLI to be shown June II.1985.

Until the Bar member­ship is notified other­wise all TV satellite pro­grams will be shown atthe two locations ­UALR Conference Cen­ter in Little Rock and theUniversity of ArkansasConference Center,Fayetteville. Brochuresproduced by the co­sponsors will be mailedto the Bar membershipsufficiently in advanceof the program so thatthey may mark their cal­enders and attend. Youwill be notified of futureprogrammings in AICLEBrochures, the Arkansas

Bar Association News­Bulletin and TheArkansas Lawyer,

1985 BankingLaw Seminar

The 1985 Banking LawSeminar, sponsoredwith the Banking LawCommittee of theArkansas Bar Associa­tion, was held March 22­23, 1985 at the SheratonHotel in Hot Springs.This program was chai­red by V. Markham Les­ter, and dealt with usuryproblems on Fridaymorning. The Saturdaymorning sessions dealtwith recent dev­elopments in bank­rupcty laws and theRICO statute as appliedto banks.

Labor Law Institute

The 8th annual LaborLaw Institute, jointlysponsored with theLabor Law Section of theArkansas Bar Associa­tion, the National LaborRelations Board, and theIndustrial Research andExtension Center ofUALR, will be presentedat DeGray Lodge, Arka­delphia, on April 19-20,1985.

Please mark yourcalendars lor theseupcoming annualprograms:

YLS Trial PracticeProgram, April 5-6,Arlington Hotel. HotSprings

Tax AwarenessInstitute. April 26.UALR ConferenceCenter. Little Rock

Federal CourtOrientation Program.May 6. 1985, UnitedStates Post Office.Courthouse. Little Rock

ARKANSASBARASSOCIATIONHOUSE OFDELEGATESMEETINGJANUARY 19, 1985

The House 01 Dele­gates 01 the ArkansasBar Association held itsSemi-Annual meeting atthe Camelot Inn in LittleRock. Arkansas, on Jan­uary 19, 1985. PresidentWilliam R. Wilson, Jr.,presided.

The House approvedthe minutes 01 the lastExecutive Council meet­ing, the financial state­ment as 01 December 31,1984, association mem­bership statistics, theannual report of the sec­retary-treasurer lor thefiscal year 1983-84, andthe report 01 the audit­ing committee.

The House adoptedResolution No. 85-1 en­dorsing Philip S. Ander­son lor chairman of theAmerican Bar Associa­tion House 01 Delegatesand Resolution No. 85-2endorsing an amend­ment to the state's Con­stitution which enablesthe General Assembly toconfer jurisdiction 01 ju­venile or bastardy mat­ters upon chancery. cir­cuit or probate courts. orto establish separatejuvenile courts.

Annabelle Davis Clin­ton, chair of the Commit­tee to Consider Guide­lines lor Selection 01Federal Judges and Elec­tion of State Judges, re­ported that the Com­mittee recommendedconsideration of themerit system for theselection 01 state judgesand that this matter be

relerred to the recentlyappointed Merit Selec­tion Committee. With re­spect to the selection offederal judges, the Com­mittee concluded that aproposal 01 guidelinesfor selection of federaljudges would be advis­ory and, therelore, 01minimum value, in viewof the power reposed inthe President 01 theUnited States to appointfederal judges with theadvice and consent 01the United States Sen­ate.

Jane Knight, co-chair01 the Committee toStudy Resolutions and"Special" Meetings ofthe House 01 Delegates,reported that the Com­mittee recommendedthe following amend­ments to Article XII ofthe Association's Con­stitution: (I) the House 01Delegates, by a two­thirds vote of those pres­ent and voting, maywaive the notice re­quirements 01 thearticle; (2) the House 01Delegates, by a two­thirds vote of those pres­ent and voting, may con­sider resolutions at aspecial meeting 01 theHouse 01 Delegates. TheCommittee also recom­mended that the fallHouse 01 Delegatesmeeting become a re­gular meeting under Ar­ticle XIV of theConstitution. The pro­posed amendments willbe submitted to theHouse 01 Delegates at itsJune meeting.

Martha M. Miller,association lobbyist. re­ported that 01 the ninebills in the Association'slegislative package, theGuardianship bill andthe Judicial Compensa­tion Commission billwere the subject of themost attention. TheHouse 01 Delegatesvoted to remove the Judi­cial Compensation Com-

April 1985/Arkansas Lawyer/103

Page 54: APRIL 1985

Association of Behavior Trial Consultants

Trial Consultation

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Little Rock. Ark. 7220150l-374-1169

You are invited to attend a national conferenceAdvance Directives in Medicine:

Ethical. Legal. and Medical ConsiderationsMay 2-4, 1985

University Conference CenterLittle Rock, Arkansas

Living wills, durable powers of attorney, "no code" ordersand other methods of directing one's future medical care

provide the focus of this interdisciplinary conference.Nationally recognized scholars in medicine, law and

medical ethics will address:- appropriate uses of advance directives.- roles of physicians. attorneys. and nurses.- economic considerations.- legislative proposals and judicial decisions, and- liability of physicians and health care institutions.

For more information and registration materials please contact:Division of Medical Humanities

University of Arkansas for Medical Sciences4301 West Markham - Slot 646

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Rules of ProfessionalConduct as the rulesgoverning the pro­fessional conduct oflawyers in Arkansas.

President Wilson an­nounced that the Associ­ation's 1985 annualmeeting will be June 5-8,1985, and that the first re­gional state trial prac­tice seminar will be heldin Camden.

The meeting was thenadjourned.

Annabelle Clinton

Case PresentationVoir Dire Analysis

Post Trial Jury Review

soon. The House ap­proved a motion toapply to Legal ServicesCorporation for an im­plementation grant.

The House approved aslightly modified ver­sion of the American BarAssociation's ModelRules on ProfessionalConduct and directedthe special AssociationCommittee on the ModelRules to petition theArkansas SupremeCourt to adopt the Model

Jury SelectionWitness PreparationVerbal-Nonverbal Analysis

Association's group in­surance package.Further, the House ap­propriated $2,500.00 forexpenses incurred inconnection with reten­tion of an independentconsultant.

Herman Hamilton,chair of the Interest onLawyers' Trust Accounts(I0LTA) Committee, re­ported that the non­profit corporation toadminister IOLTA is ex­pected to be operational

mission bill from theAssociation's legisla­tive package. Millerfurther reported that theArkansas Medical Soci­ety is not opposing theUniform Determinationof Death Act and that theadditional staffing re­quirements of both theArkansas SupremeCourt and the ArkansasCourt of Appeals will beincorporated in their re­spective budgets. TheHouse of Delegates en­dorsed the work of theStatute Revision Com­mission including theCommission's budget re­quest. Miller concludedby requesting that mem­bers of the House of Del­egates pledge contribu­tions to LAWPAC. JusticeJohn Fogleman notedthat a bill may be intro­duced in support of con­solidating the JudicialRetirement System andthe State Employees Re­tirement System. JusticeFogleman observed thatthe enactment of such abill would be devastat­ing to judicial retire­ment.

John Forster proposeda bill allowing judges toset punishment in allcases other than murderClass A and Class Y fel­onies. A motion to en­dorse the proposedamendment was tabled.

The House adopted anamendment to Article IIof the Association's By­laws, so as to exemptnew admittees from thepayment of dues for thebalance of the bar yearin which they are admit­ted to the bar, withoutapplication.

The House authorizedthe Group InsuranceCommittee to hire an in­dependent consultantfor the purpose of eval­uating the group insur­ance needs of theAssociation. This con­sultant would not be per­mitted to bid or write the

104/Arkansas Lawyer/April 1985

Page 55: APRIL 1985

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