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. *

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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

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.

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'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

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.

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56/Arkansas Lawyer/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


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


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

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.


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-

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 &

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April 1985/Arkansas Lawyer/6l

*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)

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.


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


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.

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.

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(319) 285-4509

April t985/Arkansas Lawyer/65

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

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."


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


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,

"

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

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

Photo courtesy 01 Arkansas HistoricPreservation Program

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

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,


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

--<>-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

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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

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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.

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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

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

Toward the Bicentennialof the U.S. Constitution

Introduction by Dr. Robert A. Leflar


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?

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

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

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

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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


* 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.

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

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),

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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

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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

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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


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

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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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

the Tax Reform Act of 1984 ~124

(1984)." Act §155 (a); Code §§605OL. 6659.

6660.

~Arkansasf-Heritaget--WeeR---t

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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.


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

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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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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

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

ForAllLawDayllBAIMay1

April t985/Arkansas Lawyer/99

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

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

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.

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-


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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


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