july 1981

Hastings Center for Trial and Appellate Advocacy'sEleventh Annual COLLEGE OF ADVOCACY

LEARN FROMTHE BESTCIVIL COLLEGE: July 26-31CRIMINAL JUSTICE COLLEGE: August 2-5

The COLLEGE OF ADVOCACY offers a six-dayCivil program and a four-day Criminal Justiceprogram which have graduated over 3,000attorneys since its inauguration in 1971.

SKILLSWORKSHOPS

VIDEOTAPECRITIQUE

EXPERTDEMONSTRATIONS

TOPIC DIVERSITY

ClE CREDIT

SPECIALIZEDEDUCATION

NATIONAL FACULTY

YOUNGER EVIDENCElECTURES

Small-group Workshops meet daily. Participants conduct examinations of witnesses andpresent opening statements and closing arguments. Exercises are critiqued by expertfaculty.

In addition, participants are videotaped performing selected exercises for playbackcritique.

Demonstrations and lectures presented by outstanding trial practitioners are designed toenhance advocacy skills.

Workshops and faculty presentations cover topics ranging from voir dire through closingarguments.

The COLLEGE OF ADVOCACY is accredited for many state continuing legal educationrequirements.

Specialization is available in Civil or Criminal Justice practice. Civil College participantschoose Business Litigation or Personal Injury sections. Learn specific and general skills.

Prominent legal educators and members of the trial bar from throughout the UnitedStates serve as faculty members.

Videotaped lectures on Evidence & Cross-Examination by Professor Irving Younger ofCornell University are shown daily as part of the College instruction.

All programs are held at Hastings College of the Law - San Francisco, California.

Registration fees: Civil College - $400 Criminal Justice College - $230

Please register me in:

J Civil College - Business Litigation WorkshopJ Civil College - Personal Injury WorkshopJ Criminal Justice CollegeJ both programs

College of AdvocacyHastings Center for Trial and Appellate Advocacy198 McAllister StreetSan Francisco, California 94102(415) 557-2205

[ J Please send additional Information.

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A deposit of S100 is requlfed with each registration, payable to Hastings College of the Law.The College has been unable to accept a substantial number of registrations in prior years due to full enrollment.Please register and make hotel reservalions early.

July 1981Vol. 15, No.3

THE OFFICIAL PUBLICA nONOF THE

ARKANSAS BAR ASSOCIA nON

OFFICERSPhillip Carroll, PresidentJames Cypert, President-Elect

EXECUTIVE COUNCILDennis ShacklefordClint HueyWebster L. HubbellGus B. Walton, Jr.David R. MaloneThomas D. LedbetterRobert G. SerioLeRoy FromanFloyd Thomas, Jr.Charles CarpenterD. Mac GloverTommy Womack

EX-OFFICIOPhillip CarrollJames CypertE. Harley Cox, Jr.Don M. SchnipperHerschel H. FridayLouis B. Jones

EDITORC. E. Ransick

EDITORIAL COMMITTEERobert T. DawsonE. Alvin SchayCyril Hollin9sworth

~

ArkansasLawyer

SPECIAL FEATURESCOVER

The Lawyer Legislator-Requiem or Resurgence? .....•... , .•....................92

How to Handle a Tort ClaimsCase in Federal Court Robert Fussell .126

Taxation of Life InsuranceProceeds and Premiums Raymond Weber. 114

Bar Related Title Insurance Stanley B. Balbach .. 98Media in the Courtroom-Its Impact

on the Goals of Juvenile Justice Mary Ellen Vandegrift .118Annual Meeting ,." " 95

REGULAR FEATURESPresident's Report Phillip Carroll 90Juris Dictum .............•.•.•.•.•...................... 107Legal Economics ......•.•...•...•.•...................... 106Law School News ....•.•.•...•.•.•...•.................. 122Oyez-Oyez Carol Utley.132In Memoriam .................•.•.•...•.................. 104Executive Council Notes W. C. Barrier. 129Service Directory .............•.......................... IBCAddenda ..............•.•................ C. E. Ransick . 135Context W. Christopher Barrier. 102AICLE News Claiboume W. Patty, Jr.. 133The Arkansas Bar Foundation Sidney H. McCollum. 110To Wit S. Sponte, Esq. 125Ethics 117Lawyer's Mart IBC

The Arkansas Lawyer (USPS 546-040) is published quarterly by the Arkansas BarAssociation, 400 West Markham, Unle Rock, Arkansas 72201. Second classJXlstage paid at little Rock, Arkansas. Subscription price to non-members of theArkansas Bar Association $6.00 per year and to members $3.00 per year includedin annual dues. Any opinion expressed herein is that of the author, and notnecessarily that of the Arkansas Bar Association, The Arkansas Lawyer, or theEditorial Committee. Contributions to The Arkansas Lawyer are welcome andshould be sent in two copies to the Arkansas Bar Center, 400 West Markham, LittleRock, Arkansas 72201.

All inquiries regarding advertising should be sent 10 The Arkansas Lawyer.above address.

July 1981/Arkansas Lawyer/89

PRESIDENT'S REPORTby PHILLIP CARROLL

WILL LEGAL SERVICES CORPORATIONSURVIVE THE REAGAN BUDGET CUTS?

President Reagan's 1982 budget proposal provides zerofunding for Legal Services Corporation. If Congress agrees,the delivery of legal services to the poor will be dealt adevastating blow. The Arkansas Bar Association has joinedwith the American Bar Association and most of the otherstate bar associations in the United States in an effort tosave L.S.C.

L.S.C. currently employs more than 6,200 lawyers and2,800 paralegals in 1,400 offices. In 1980, it handled morethan 1.2 million legal problems. Studies indicate that approximately 29 million Americans are eligible for free legal services and that nearly a quarter of these face a civil legalproblem annually. L.S.C. can handle only about 20% of thisneed. The balance must look to the private bar.

The subject is not without controversy. An A.B.A. lobbyistis quoted, "Legal Services Corporation is suing the haves onbehalf of the have-nots, and some of the haves haven't likedit." Howard Phillips, National Director of the ConservativeCaucus has formed the National Defeat Legal ServicesCommittee. According to Phillips, Legal Services Is an "elitecorps" of lawyers whose work includes providing "specialassistance to transsexuals, sodomites, and others seekingto legitimate perverse behavior." Dan J. Bradley, L.S.C.President, replies, "Howard Phillips would like to take aladder and climb up the front of the Supreme Court Buildingand chisel out the words, 'Equal Justice Under Law.'''

While no poll has been taken of the membership of theArkansas Bar Association, there has been continuous support of L.S.C. in the House of Delegates and the ExecutiveCounsel. This is not unanimous. On March 9, I polled theHouse of Delegates as to whether the Association shouldask the Arkansas Congressional Delegation to help saveL.S.C. Three negative replies were received from the sixtytwo voting members. Three of the eighteen members of theExecutive Counsel voted against sending Chris Barrier, ourSecretary-Treasurer, to Washington on April 1, to join A.B.A.President William Reece Smith, Jr. and over forty other barassociations in a concentrated lobbying effort. Chris madethe trip, and to him we owe our thanks. On the other hand,

90/Arkansas Lawyer/July 1981

one former president of our association wrote me that heconsidered L.S.C. another of the programs "devised bylarge city lawfirms... merely the way they have for not serving the public in order to concentrate on great fee-producingclients." I vigorously disagree with that indictment.

In November, 1980, I notified L.S.C. that our Bar Association favored an amendment in the law proposing that substantial amounts of available funding should be used toprovide legal assistance to eligible clients by privatelawyers. This is the Judicare concept that can be usedeffectively in many instances. Lonnie Powers, the Director ofLegal Services of Arkansas (serving twenty-four countiesand being one of the seven projects in Arkansas), told methat in 1980 approximately 55% of all of the cases handledby his agency were on a Judicare basis, and that so far in1981 the percentage is between 55% and 60%. On the otherhand, he points out that in one county which has abouttwenty lawyers, not a single attorney would agree to participate in the Judicare program. East Arkansas Legal Services(operating in seven counties) is able to assign almost all ofits domestic relations cases to private attorneys who arepaid $30.00 an hour for their services.

Central Arkansas Legal Services (eight counties, including Pulaski) completed 3,295 cases for the poor in 1980 andaccepted 3,456 new clients. At a recent meeting of thePulaski County Bar Association, a resolution favoring thecontinuation of L.S.C. was adopted unanimously.

Only 3% of the total budget for L.S.C. is spent on administrative overhead. A.BA President Smith points out that theprogram does not require a single page of paper work fromstate and local government.

The outcome of the battle to save L.S.C. is not yet known.It appears certain, however, that the private bar will never berelieved of its obligation to help provide justice for those whocannot pay. Canon II of the Code of Professional Responsibility states that all of us have a duty to make legal counselavailable. E.C. 2-25 reads in part:

"The rendition of free legal services to those unable to payreasonable fees continues to be an obligation of each

,

lawyer, but the efforts of individual lawyers are often notenough to meet the need. Thus it has been necessary for theprofession to institute additional programs to provide legalservices. Accordingly, legal aid offices, lawyer referral services, and other related programs have been developed,and others will be developed by the profession, Everylawyer should support all proper efforts to meet thisneed for legal services." (Emphasis added.)

APPELLATE PUBLIC DEFENDER OFFICE TO CLOSE

It is with sadness that I report to you that our efforts toobtain state funding to support the Appellate Defender Office were unsuccessful. The office will lose further federalsupport and close May 1, 1981.

Douglas v. California, 372 U.S. 352 (1963) holds thatindigents have a constitutional right to appointed counsel ondirect appeal. Members of the Bar of Arkansas must onceagain assume the full load of this responsibility.

As of March 30, 175 cases were assigned to the AppellateDefender Office. So far, relief has been granted in 32 (21reversed, 4 reversed in part, 4 modified, 3 Rule 37 granted).Four cases were not handled for various reasons. Seventythree cases have been affirmed. That gives the office asuccess ratio of about 30%. Not bad, considering the obstacles.

Congratulations should be extended to Director AlvinSchay and the members of his staff for their outstandingcontribution.

James A. McLarty of Newport sent me a copy of his letterto some legislators urging support for the Appellate Defender's Office and quoting John Workman as follows:

"When community resources are scarce and vigorouslyfought over, it is the poor, the oppressed, the minorities andthe victims of injustice who come out on the short end ofthings. They are first to suffer. It is sad, but true... Onemeasure of the greatness of a society is the way it respondsto its poor and oppressed and how it handles its unpopularcauses... Public servants do well to remember that at suchtimes the powerful always have their spokesman, and thatelected officials have a special responsibility to speak for thedispossessed, and to give fair representation for thosecauses, however unpopular, that represent legitimate andvital issues... "

The history of this nation records numerous occasionswhen a lawyer braved abuse and retribution for defendingthe rights of an underdog, protecting the rights of a minority,or arguing an unpopular cause. Those opportunities continue to arise, and I am confident that Arkansas lawyers willnot shirk their obligations.

THANK YOU

This will be my last opportunity to write this column asPresident of the Arkansas Bar Association. What a wonderful year it has been for me! I am so very proud of this BarAssociation and the many dedicated people who make itfunction. Thank you very much for permitting me to serve asPresident. ..,......

~~~~ttiLIn Arkansas and 17 Other StatesMichie/Bobbs-MerriU, law publishers since 1855, now serves lawyers. legislators and judges with

state code publications in seventeen states and the District of Columbia. Timely, accurate and reliable- our code publications are compiled, annotated and indexed by a staff of over SO veteran lawyereditors assisted by the most modem computer technology available in the field.

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Your Sales Representative in Arkansas is:Allin R. JonesP. O. Box 1306

Conway, Arkansas 72032(SOl) 327-6526


COVER STORY.

The Lawyer Legislator -

Requiem or Resurgence?

The chart, Lawyers Represented inState Legislatives, with the articlegives the following percentages for Arkansas:

state legislatives has diminished drastically in recent years." For example,Delaware has no lawyer legislators; in11 other states, the percentage standsat 10 percent, and further reduction inlawyer rolls is likely in the future. Theseare figures for 1979.

In the January-February 1981 issueof the ABA's Bar Leader, the provocative article, "The Lawyer LegislatorRequiem or Resurgence?", raisessome interesting questions as its titleindicates.

Ethical Consideration 8-8 of theCode of Professional Responsibility, in effect in Arkansas, states:

"Lawyers of1en serve as legislatorsor as holders of other public offices.This is highly desirable, as lawyers areuniquely qualified to make magnificentcontributions to the improvement of thelegal system....."

The article states, "the reality is thatthe lawyer membership in America's

196620

197720

'added.

197917

197624

1981 '18

It would appear that the lawyer isbarely holding his/her own in the Arkansas Legislative.

There is no need here to recount themany obvious problems facing alawyer legislator or office seeker in Arkansas. However, it is hoped that thecover story in this issue of The Arkansas Lawyer will encourage Arkansaslawyers in this connection. SenatorMax Howell and Representative JimShaver are shining examples of "the"lawyer legislator.

,)

//

"I've worked for a liVing since I was ayoungster. Since my election to thelegislature in 1946 I don't know howI've had time to work for a liVing," saidState Senator Max Howell in an un-


MAX HOWELL

usually relaxed morning meeting in hisoffice just off the Senate floor at theState Capitol.

The relaxed atmosphere didn't lastlong. There were telephone calls to receive and to place. Bills needing hisattention were pending. One earlymorning meeting with Senate colleagues was over, and a Joint BudgetCommittee meeting was minutesaway. Max Howell has a lot of thingsgoing, and he always has.

His first position in the legal profession was a law clerk and young lawyerin the Solicitor's Office of the Department of Agriculture. He worked under aregional attorney who was to make aname for himself as a member ofCongress-Brooks Hayes.

In the Army Air Corps for four years(he retired in 1975 as a brigadier general in the Arkansas National Guard),Howell said that while he was proud ofArkansas, the State was looked down

upon by many of his acquaintances. Hethought it strange that this should beso, because a number of people inleadership positions in his unit wereArkansans.

"I decided then that if I ever returnedto Arkansas, I would do all I could tohelp the State progress." He didn'twaste any time implementing his decision.

Back in Little Rock, Howell was associated with the firm of Talley andOwen. They supported him when heran for the House of Representatives in1946 and 1948 and when he served inthe House from 1947 through 1950. Hewas first elected to the State Senate in1950.

In 1954, Howell lef1Talley and Owenand started his own law firm with DalePrice, Gene Worsham, and his brotherF. J. Howell. "They shared my concernfor the needs of Arkansas, and encour-

aged me and supported me in my lawbusiness," according to the Senator.

During his 34-plus years in the legislature, Howell has introduced andpassed a large body of legislation dealing with substantive and procedurallaw. His legislative interests has beenwide ranging. Through it all, he hasaccumulated a lot - a whole lot - ofpower. Prestige has been there too,and includes having served as president pro-tempore of the Senate andacting governor on occasions in 1963.Few legislators in the nation even approach his tenure in office.

Howell takes pride in the Universityof Arkansas at Little Rock (UALR) andits school of law, the University of Arkansas Medical Sciences Campus, thelaw on partition, the old Fargo Girl'sTraining School, the Criminal andJuvenile Codes, the Public Defendersystem, the Youth Services Division ofthe Department of Human Services,and the Arkansas Children's Colony.He had a direct hand in getting eachenacted and established, and thosemeasures barely scratch the surface ofhis legislative work.

Howell particu larly takes pride inUALR and its law school and in theArkansas Children's Colony. Both giveinsights into the variables affecting billpassage.

The creation of UALR and, severalyears later, its school of law is a goodcase in point. During an extraordinarysession of the legislature in 1968,Howell sponsored a bill (SB 67) directing the University of Arkansas to mergewith Little Rock University by July 1,1969, but the President of the Senateruled that the bill was not within thepurview of the Governor's call for thesession, and Howell withdrew it.

But in 1969, Senate bill 52 was introduced to the regular session of thelegislature, and in just 11 days it passed both houses, and Governor Winthrop Rockefeller signed it into law asAct 35.

In 1975, Howell and UALR joinedforces, and Howell introduced a bill toform the institution's law school. Inushering the bill through to enactment,Howell was, in a way, honoring hisalma mater. He had graduated from theold Arkansas Law School. That schooleventually became the UALR School ofLaw.

The Children's Colony was createdin 1955 by Act 5. Howell was beginninghis third term in the Senate; Act 5 hadpassed both houses as House Bill 54by Representative Kenneth Sulcer.What does that have to do with MaxHowell?

It is not an uncommon occurrence fora legislator who has an idea for a bill toshare the idea with another legislator,encouraging the other to introduce thebill. The originator of the idea introduces a companion bill. This maneuvercan be especially valuable in Arkansassince history reflects a general reluctance for persons in the state to be onthe same side of an issue as personsfrom Pulaski County.

The Children's Colony bill had beenbacked by then-Governor OrvalFaubus, and both Howell's andSulcer's bills passed both houses. Ithad been agreed that Sulcer's billwould be the one signed. The Act represented one of the most far reachingsteps ever taken in Arkansas to trainthe mentally retarded.

Howell has served in the legislatureduring the tenures of eight electedgovernors, and is now a few monthsinto the ninth "I've enjoyed excellentrelations with each," Howell says of thegovernors. "We've had no difficultieswith each other. They have been asconcerned as I am for the good of Arkansas, the needs of her people, andthe delivery of services to them. I'veenjoyed working with them in developing their programs."

It has been said that Howell's powerstems from three sources- (1) Sincethe Senate is a small legislative body(35 members), its power tends to beconcentrated rather than diffused as inthe House of Representatives;(2) Howell's seniority; and (3) hiscommittee chairmanships and memberships.

The Joint Budget Committee is ahigh prestige assignment and its members are usually the legislators with themost power in the House and Senate.Members are selected by the individualhouses, but it wasn't always like that. Inyears past, the governor appointedJoint BUdget Committee members.Governor Ben Laney appointed Howellto Joint Budget for pre-session planning in 1946, and he was sworn intooffice as a freshman representative thefollowing January.

Howell is a former chairman andvice-chairman of the Legislative Council. In the 1981 legislative session, hewas a member of the Senate Insuranceand Commerce Committee and theCommittee on Committees. In addition,Howell is vice-chairman of the Committee on Rules, Resolutions and Memorials.

In his capacity as a committeechairman, he especially gets thingsdone. He is chairman of the SenateEfficiency Committee, seeing after theSenate's day-by-day operation, chairman of the Joint Budget Committee,and chairman of the Senate JudiciaryCommittee.

As the Judiciary Committee chairman, Howell has seen much change inthe legal profession, and a lot of thechange has been initiated by him. Several Chancery and Circuit Court Districts have been reapportioned. (Hewas a member of the Judicial Appoint·ment Committee in 1977, and will be amember of the Judicial AppointmentBoard created by Act 265 of 1981).

A Constitutional Amendment wasapproved by the voters to establish aState Court of Appeals. In 1981, hesponsored a resolution to be voted onby the people as a proposed Constitutional Amendment giving the Legislature the authority to reconsider themake-up of the state's Judiciary "hopefUlly to the end that a family court system can be included," he said. (As ofthis writing the measure has not beenfinally voted upon).

During Howell's chairmanship of theJoint Interim Committee on theJudiciary, the state insurance lawswere modified as were Arkansas' criminallaws and laws of civil procedure. Inthe 1981 legislative session, the Committee introduced a 25-bill packageaimed at improving service to childrenand young people, juvenile court procedures, youth detention facilities, foster homes, mental health services, ser·vice to exceptional children and othermeasures.

Robert Frost wrote a poem, the finalverse of which seems particularlyapplicable to Max Howell:

The woods are snowy, dark and deep;But I have promises to keep.And miles to go before I sleep.And miles to go before I sleep.


flaws and needs improvement. That'swhy I became a spokesman for implementing the Court of Appeals becausethe members of the committee andevery lawyer in Arkansas realized thatour Supreme Court was overloadedand needed help. I am proud to havebeen a part of establishing the newcourt."

Shaver was instrumental in gettingthe constitutional amendment to createthe court on the ballot and he guidedthrough the Legislation to implementthe court. He also handled legislationregarding the administration of decedent's estates and our probate codeand served on the Judicial Task Forcewhich helped draft the proposed constitutional amendment to be submittedto the voters in 1982 authorizing thelegislature to establish the Jurisdictionand venue of the courts.

House and Senate members andother public officials have taken note ofShaver's dedication to his job and hisdevotion to the legal community.Shaver has been honored on many occasions in his home county and he wassurprised during a special ceremonyrecently in the House when he waspresented the House DistinguishedService Award for 1981. The awardwas presented in a ceremony attendedby hiS parents, wife and law partner,Tom B. Smith. In giving the award,Representative N. B. (Nap) Murphyacknowledged the many characteristics that have made Shaver one of themost popular members of the GeneralAssembly. "Few people have had thepriVilege of serving with a person whohas displayed the patience, calmness,understanding and fairness of thisman, not only as a committee chainmanbut in his daily dealings with the legislature and the public," Murphy said. Hesaid Shaver's "dignity and humility"made him a "unique" legislator.

On a humorous note, Murphy, asouth Arkansas automobile Dealerexplained that it was "difficult for u~non-lawyers to understand the thinkingor techniques of some of our lawyermembers of the House. In fact, some ofus find it difficult to understand a lawyeron any occasion." But, Murphy added.Shaver "continually impresses me thatalthough he is a distinguished andcapable iawyer, He has the unique abilIty of relating to us laymen legislators ina manner we can understand and appreciate."

Shaver was surprised by the presentation and was not aware that his pa-

As he was about to become theSpeaker of the Arkansas House ofRepresentatives in 1977, someonewrote of Jim Shaver, "His main interests in the legislature have prettymuch mirrored his professional interests: He's a lawyer, a general practitioner who seldom ventures into criminal cases and as such he's devotedmuch of his legislative attention to matters concerning legal procedures andadministration."

That may have been the ultimatecompliment to one of the state's mosttrusted politicians and successful practicing attorneys. In his 27 years of continuous service in the House, James L.(Jim) Shaver Jr. of Wynne has becomeone of the most trusted, persuasiveand yet inconspicuous members of theArkansas General Assembly. And aschairman of the House JudiciaryCommittee, he has been responsiblefor passing hundreds of measures designed to improve and upgrade thelegal profession.

Whether it's helping to draft legislation setting up the new Court of Appeals or working up a comprehensiverevision and codification of the state'scriminal laws, Shaver remains in tunewith the ~roble~s in his profession bymarntarnrng hiS law partnership ofShaver, Shaver and Smith in CrossCounty and serving as an elected official.

Shaver's exposure to politics can betraced to his father, J. L. (Bex) Shaverof Wynne. The elder Shaver waselected to the Arkansas legislature onthe eve of the Depression and servedas a member of both the House andSenate before his election as lieutenant governor in 1941. He was lieutenant governor for four years and laterserved as executive secretary to Governor Orval E. Faubus for two years.

Young Jim Shaver made the roundswith his father at the Capitol. He even


JIM SHAVER----------remembers flying a kite at age lOonthe Capitol lawn while his father at·tended to legislative duties. "I remember those days with dad at theCapitol but I don't think my early exposure to the legislative process triggeredany aspirations to serve in political office," Shaver observed. "My desire toserve came later in life and I hope Ihave made a positive contribution tonot just Cross County but for our entirestate."

Shaver was born and raised atWynne and graduated from WynneHigh School in 1945. After a tourof dutyIn the Navy he married his childhoodsweetheart, Bonnie Wood (also froman old Wynne family) and went off tothe University of Arkansas at Fayetteville to study law.

Shaver first ran for the House whenhe was 26 years old and fresh out of theUA School of Law. He was electedwithout opposition, a harbinger ofthings to come as he ran for re-eiectionevery two years, never experiencingpolitical defeat and encountering opposition only three times.

A newspaper columnist once ob·served that Shaver "came to theCapitol at the same time Orval Faubusdid-in 1955-and has quietly outlasted a whole generation of moreflamboyant politicians over whosesons and political heirs" Shaver presided over as speaker.

Shaver's low-key approach to government and politics was evidentthroughout his two-year tenure asspeaker. One Capitol observer noted in1977 that Shaver presided over thechamber in a way that a presidingJudge oversees a courtroom.

"Certainly serving as Speaker was ahighlight of my political career," Shaversaid. "But I look back over these 26years and I find it hard to believe thatI've really been in the House that long.Being Speaker is a part of that 26 yearsbut my service to the folks back homeand the local bills I've handled meanjust as much to me as my position inpresiding over the House becausethose bills directly affected the people Iknow best, the people I see most everyday.

"My tenure as Judiciary CommitteeChairman in the House means a greatdeal to me, too, probably more thanmost people realize. I believe verystrongly In our judicial system and Iwant to be a part in improving our system of Justice because it does have

rents, wife and law partner were in townfor the awards ceremony. In typicalShaver fashion, however, he responded by walking slowly to the "wellof the House," accepting the plaquefrom Murphy and the warm greetingfrom his family, and told his cheeringcolleagues, "Thank you very much."End of speech.

Shaver now ranks second in seniority among the members of the House.He has served as chairman of theHouse Judiciary Committee for seventerms and also serves as co-Chairmanof the Joint Interim Senate and HouseJudiciary Committee. He is a memberof the powerful Legislative Council, theHouse Agricultural, Industrial andEconomic Development Committee,Rules Committee and Joint BudgetCommittee.

Shaver also serves on the DraftingCommittee for Suggested State Legislation of the National Council of StateGovernments and he is a member ofthe Interstate Co-operation Committee. He was also a member of the Judicial Re-Apportionment Committeewhich reapportioned the Circuit andChancery Court districts of Arkansas in1977 and 1981. Before receivingunanimous support to become HouseSpeaker in 1977-78, Shaver was votedthe outstanding member of the Housein 1975. As speaker, Shaver served onthe Executive Committee of the Southern Council of State Governments.

Shaver is a member of the AmericanBar Association, a member and formerHouse of Delegates member of the Arkansas Bar Association, member andpast president of the East ArkansasBar Association, member and presentsecretary-treasurer of the CrossCounty Bar Association and a memberof the American College of ProbateCounsel.

He serves on the Industrial Development Commission of CrossCounty, is a member and past president of the Wynne Rotary Club, pastpresident of the Crowley's Ridge Country Ciub, serves on the Board of Directors of the First National Bank ofWynne and is legal counsel for the St.Francis Levee District, the oldest andlargest improvement district in Arkansas.

Shaver is a former Deacon and Elderof the Wynne Presby1erian Church. Heand his wife, Bonnie, have one daughter and two grandsons.f.....

ANNUAL MEETING(from pages 110-111, this issue.)

You Can't Tell the Players Without a Program!!!Here's the key to a particularly fine program-professionally andsocially-I2J As usual, there will be numerous organizational meetingsHouse of Delegates, Law Review Board, AICLE, Arkansas Bar Foundation Membership and Board, Committees, Sections (especiallyYLS), etc.rn The Great Debate-"Has the Jury Trial Outlived Its Usefulness?"with Philip H. Corboy of Chicago vs. Donald J. Zoeller of N.Y.-there may be a second confrontation on structured settlementswith Winslow Drummond and R. Keith Arman. If Mr. Corboy, who haswritten dozens of legal articles including "Structured Injustice:CompUlsory Periodic Payment of Judgements", is available, a realconfrontation with our Association President Phillip Carroll will beinevitable.mWe are delighted with the "telephone" cartoon-it points up sowell the need for better teiephone and client communications. All Willbe impressed with the fine film, "A Case for Communications", andrelated comments. Attendees will be able to discuss their individualproblems with experts.IT! "Body Language" is a modern art. Dr. Loretta Malandro will puton a 3-hour program on "Nonverbal Communication In Jury Trials".She is the "top" specialist in nonverbal communication-bodylanguage-and how to recognize it, read it and use it. This is oneprogram, none will want to miss!!GJ Where is the legal profession going in the 1980's? It may be acardinal rule to avoid Bar officials as speakers during annual meetings. However, it would be a cardinal sin not to have ABA PresidentWm. Reese Smith, Jr. point the way in these critical times. His will bethe "keynote" address! All will find him articulate, humorous, knowledgeable, and with a message for all lawyers.mWe are going to have two receptions, two luncheons, and Western Nite with a fine Bar BQ. Western Nite will be better than last year'sFirst Fabulous Foreign Food Festival-with hats, western band, andall.rn Under 3 above, structured settlements was covered in part.Lawyers need to know the techniques involved in such settlements.The possibility of a debate on this subject adds to the presentation.rn The YLS will have the sponsorship for the First Annual PoolsideDance with a great band and cash bar. The Western Nite Band willalso play for dancing-western disco, a speciality!ITQI We have added a cartoon on the Jury. This institution is underfire-its capability to handle complex cases, its costs, its consist, etc.The Annual Meeting program will add to one's understanding in thisconnection.[TIl The male Bench and Bar needs to recognize that "Portia" hasarrived. Outstanding Chicago lawyer Joan M. Hall will discuss "Portia's Progress" at the Friday luncheon. Hall not only is a partner in amajor law firm, but also is the Vice-Chairman of the ABA Section onLitigation-in addition to many other professional and civic activities.@] The 82nd Annual Meeting program has "IMPACT"-structuredsettlements; "Jury" debate; communications; body language; telephone systems; public relations; "Portia's Progress"; law in the80's-professional developments. Add to these-a fine social program. The 82nd Annual Meeting is the "best bargain" for similarmeetings in the Country.PLAN TO ATTEND-MARK YOUR CALENDAR-REGISTEREARLY-STAY LATE-TAKE THE PRINTED PROGRAMS HOMEWITH YOU!!

July 1981 {Arkansas Lawyer{95

SAFEGUARDING YOURPROFESSIONAL FUTURE

• Editor's Comment:AEGIS is a feature ofthe Arkansas BarAssociation's educational program concerning docket controland other areas ofhigh risk experience inprofessional liabilitycases.

Don't Put AllYour Eggs

In One Basket:There Could Be A Bad Break!

the problem

the result

advice

96/Arkansas LawyerlJuly 1981

In this case the insured attorney represented a couple whohad been injured as a result of an automobile accident whichoccurred in Canada. Since the accident was caused by arear-end collision, liability on the part of the defendant wasundisputed.

Rather than refer the case to a local attorney, the insuredattorney dealt with the adjusting firm by mail. He was unawarethat a year statute of limitations applied in Canada and failedto take the necessary steps to protect his clients.

The insured attorney notified his clients of his failure to filethe suit on time. He conducted the negotiations with the clientshimself and settlement was made for medical expenses andlost time.

Cases involving a Foreign Country need a much closer reviewof the points of law. Prompt referral to a local counsel isalways a wise decision.

CAYE M P

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Today's real property transactions are more complex and costly than ever before, andmany pitfalls may lurk in the shadow of the real estate "for sale" sign. Such title defects as forgery, fraud, duress, incompetency, incapacity, impersonation and manyothers generally would not be detected by even the most thorough title search. That'swhy property owners need the protection oftitle insurance from First American, oneof the nation's oldest. largest. most experienced title insurers. We protect againstproblems implicit in that old maxim, "Let the buyer beware."

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First American TitIef'!Insurance CompanyREGIONAL OFFICE 6051 N BROOKLINE 5T. STe 106. OKLAHOMA CITY, OK 73112 • (405) 840-3258

NATIONAL TOLL-FREE NUMBER: DIAL 1-(800)-854-9171NATIONAL HEADQUARTERS: 114 E. FIFTH ST" SANTA ANA, CA 92701 • (714) 558·3211

SERVING TITLE INSURANCE NEEDS THROUGHOUT THE UNITED STATESAffiliated with The First American Financial Corporation


by Stanley B. Balbach

BAR RELATED

TITLE INSURANCE

Insurance companies and lawyers inthese words:

"As between the legal servicesand the insurance service in areal estate transaction, andgranting that both are usefuland desirable, it remains to beasked: Which is the dog, whichis the tail, and which is, orought to be, wagging which?

STANLEY B. BALBACH

(Note: Stan Balbach is eminentlyqualified to write about Bar-relatedtitle insurance. During World War /I,Stan was a pilot at Newport, Arkansas, and there met and married theformer Sarah Troutt Witherspoon ofJonesboro. He has been a frequentvisitor to Arkansas, both for familyand professional reasons. His professional contacts with Arkansaswere intensified when he served asChairman ofthe Young Lawyers Section of the American Bar Associationin 1954. He has been President of theBoard of Attorneys of the TitleGuaranty Fund, Inc., an Illinois corporation, and is presently a Director.He is President of the NationalAttorneys Title Assurance Fund, Inc.,and has written a plethora of articleson many subjects, prominent amongwhich is title insurance. He practiceslaw with the firm of Balbach andFehr, P.C. in Urbana, Illinois.

-E. Harley Cox, Jr.Immediate Past PresidentArkansas Bar Association)

and in a Florida city a leading nationaltitle insurance company sent a letter toevery homeowner which read in part:

"Your best sales feature-<Jther thanyour home itself-would be to closeyour transaction through our title insurance corporation and give your purchaser the peace of mind that goeswith title insurance protection. Our services include:1. Examination of the title.2. A written report which you can give

to the purchaser showing the condition of the title.

3. The closing of the transaction, including preparation of all necessarypapers.

4. Issuance of our policy to the purchaser showing title vested in him.All this for a one-time title insurancepremium. Bring us your sales contract and we will take it from there."

The third element, the insurance ofthe title, is conceded by lawyers in almost all parts of the country to be besthandled by an insurance company.The classic exception is in the Northeast where some of the very large lawfirms maintain their own abstactingfiles and as they issue each title opinionthey pay a portion of the fee into anindemnification fund and in the event ofa title failure they reimburse the clientout of that fund. If this were successfUlly done nation-wide the title insurance companies would be out of thereal property practice and so would95% of the lawyers who had insufficientassets to support an adequate fund.

A Judicature Society editorialanalyzed the conflict between Title

lawyer examination. To thecontrary, the evidence wouldshow that lay examiners turnout more examinations for titleinsurance purposes with lesserrors and in less time thantheir lawyer counterpart, andthat, I believe, is to the pUblicgood and the credit of the corporate agent and direct underwriter branch facilities."

THE ELEMENTS OFTITLE INSURANCE

Essentially there are three elementsin the production of a title insurancepolicy: Examination of the record title;analysis of the legal effect of the documents; and insurance of the title. Insurance provides a fund to pay the titleholder in the event of the loss of title forany reasons. The examination function(searching the title) has been abandoned by lawyers in much of the country although it is still the exclusive province of lawyers in parts of New England and, in fact, in many nonindustrialareas throughout the United Stateswhere the lawyer has any involvementat all in the real property transaction.Many offices conduct their ownexamination using lay assistants toprepare the abstract or history of title.

The subsequent analysis of the legaleffect of the documents is acknowledged by almost everyone to be a lawyer's task although an executive of aleading commercial title insurancecompany doing business in Texas andin practically all other states recentlywrote:

Lawyers have a duty to the public toprovide competent, independent advice in real property transactions. Thisservice may be aided if the buyer hasaccess to a bar-related title insurancecompany. The best protection for aclient is his lawyer's opinion of the titleplus the indemnifying feature of title insurance. In this article the problem isanalyzed and a solution is suggested.

"With regard to your feelings,and perhaps the feelings ofyour Committee, that a/l titlesshould be examined by a lawyer before they can be insured,my company takes strenuousissue. .. There is no evidenceto warrant a conclusion thatthe policy holder or the titleunderwriter would be wellserved by the requirement of


To ask that question is to answer it. The operation is essentially a legal one, and the titleopinion is the purchaser's mainreliance with insurance properly being supplied only tocover the contingencies ofhonest error and the likesimply to make the near perfectprotection of a good title opinion complete."

REAL PROPERTY PRACTICEIS PROFITABLE

Many lawyers have not participatedin the handling of real property practicebecause they feel that it is unprofitable.This belief has good foundation because many of us have used our realproperty practice as a loss leader, particular/y the title examination andanalysis feature. Commercial titleinsurance is with most companies aprofitable business. In the preparationof a title insurance policy the lawyerfunction of analysis represents about80% of the total billing.

The survey by the State Bar of Texasshowed that more people found theirway to a lawyer's office for the first timein connection with a real estate problem than in any other way. The American Bar Association "Survey of theLegal Needs of the Public" showed that30% of the legal problems of the publicin the ensuing year would involve realproperty. With proper billing, this isprofitable practice and the opportunityit affords to do a legal checkup willnormally result in other legal work.

There are those who say that the useof a lawyer on a transaction increasesthe cost. A member of the Californiabar who served on the Council of theReal Property, Probate and Trust LawSection of the American Bar Association, made the statement:

"This system (referring to thesystem in the state of Californiawhere a lawyer never participates in a residential real estatetransaction) has resulted in theelimination (of) lawyers frommost residential transactionsand a corresponding reductionof closing costs. It is a very efficient system and serves theconsumer well."

This statement is untrue. The HUDFHA survey shows that the highestclosing costs in the country for legalservices, title insurance, escrow

charges and examination charges arein states where the lawyer is not involved in the transaction while some ofthe lowest are where no title insuranceis used.

THE CONFLICT WITHCOMMERCIAL TITLE INSURANCE

The separation of the analysis (lawyer function) from examination andindemnification is a fact of life in somestates but not in others so confrontationis inescapable.

Fifty years ago the chairman of theTitle Insurance Section of the American Title Association said:

"We all know the goal which thetitle insurance Section is tryingto reach is to eliminate from thetitle business all the generalpractitioners of law. Let's getthe money that they are gettingand save the public from them.Then hire some good attorneys, pay them by the year, andtake the profits which theyotherwise would make:'

At a meeting in New Orleans, anexecutive of one of the leading commercial title insurance companiesqualified in Texas and Louisiana recent/y said:

"There are varying degrees ofrequirements. I don't see theneed for requiring an attorneyin Louisiana any more than inTexas. In the West, examinations are not made by attorneys . .. I believe most titlecompanies would oppose anabsolute requirement that eachtitle would be certified by aLouisiana attorney:'

The Judicature Society article which ispreviously cited in this article hasanother clause which applies to thissituation:

"Now if independent legal services and independent commercial title insurance couldget along indefinitely side byside this would no doubt be asatisfactory situation. But itsimply does not work out thatway. The uniform experiencehas been that the morecommercial title insuranceflourishes, the more the legalservices involved become a

mere appendage of the insurance operation, and the morethe independent lawyer tendsto disappear from the scene:'

The charge might be made that theeditorial was several years ago, thatthe prophetic statement was fifty yearsago-what's happening more recently? On Sunday, June 13, 1976, inthe Jacksonville, Florida Journal wefind this statement:

"According to the spokemenfor a few of this city's dozen titlecompanies, plans include thefollowing: ... a shift towarddealing directly with the consumer through in-house staffexaminations and closings andaway from relying on businessreferred by attorneys handlingclosings. . . .Some titlecompanies hope to handlemore closings. This, coupledwith in-house title reviews,would altogether eliminateattorneys fees, they claim:'

CONFLICT OF INTERESTSome well-intentioned but mis

guided attorneys challenge the ethicsof the lawyer who issues a title insurance policy on the grounds of conflict ofinterest. There is precisely the sameconflict of interest as when a lawyerwrites a title opinion and few wouldargue that this conduct is unethical.Any conflict is lessened by providingthe protection of indemnification. Asthe editorial in Judicature said:

"No matter how sincerely hemay try, the title company'slawyer cannot be dependedupon to give adequate representation to either the vendor'sor the purchaser's interest. Herepresents the company, andanything beyond that raisesserious problems of conflict ofinterest. There is no substitutefor the vendor's and the purchaser's own attorneys in realestate transactions:'

In its pamphlet Residential Real Estate Transactions: The LawyersRole-Services-CompensationProper Transactions, the AmericanBar Association Special Committeesaid at page eleven:

continued on page 100


· ..Title Insurance,continued from page 99

"The fact that the lender andthe insurance company deal atarm's length is well understoodby both. What is not understood by the buyer is that, bythe nature of the contract, hisinterests are in conflict withthose of the insurer. The twocan enter into a binding agreement giving protection spelled out and limited by the termsof the contract. But the inherent conflict, however, between the interests of the parties stands in the way of the insurer either advising or representing the insured."

There is no legal duty for the insurance company to explain the exceptions in Schedule B, but the lawyerhas a fiduciary duty to his client to explain the exceptions. It is true that somecommercial title insurance examinersare highly proficient but this is meaningless to the policy purchaser if theexaminer owes no duty to the purchaser.

SERVICEA legitimate criticism of the legal pro

fession is in the area of service. If thelawyer is to compete with his commercial competitors then he must be willingto do the work promptly. The searchfunction must and can be expedited.Title analysis takes just a few minutesunless there is a close legal question inwhich case there is a time lag whetheror not commercial title insurance is involved. Upon completion of the titleanalysis, the policy can be typed in afew minutes so that in many routine!ransactions the necessary title workprior to closing can be completed in anhour and the policy issued. This iscompetitive with any commercialsource. One reason that the lawyer hasbeen dilatory in real property transactions is because he had charged aninadequate fee. Frequently, this is theresult of pressure brought by brokersand other individuals who desire toshow their clients a nice package ofservices at a very low cost. If the lawyerreceives compensation on the scale ofthe commercial title insurance companies, the problem of inadequate payshould be solved.


ABA HISTORYThe American Bar Association,

through its committees and sections,has long been interested in bar-relatedtitle insurance. In 1947 the Unauthorized Practice News published by theComm ittee on the Unauthorized Practice of the Law said:

" .. .it is suggested that themembers of the Bar generallystudy and discuss the (FloridaFund) Plan as one of the stepsin preserving to the legal profession a field of activity whichis rapidly becoming the objectof corporate encroachment."

In 1961 the Board of Governors ofthe American Bar Association authorized the appointment of a SpecialCommittee on Lawyers' Title GuarantyFunds which included representativesof the American Bar AssociationCommittees on Professional Ethicsand Economics of Law Practice and ofthe Section on Real Property, Probateand Trust Law. In 1962 the purposes ofthe Special Committee were expandedby the House of Delegates of theAmerican Bar Association by theresolution:

"Resolved, that the SpecialCommittee on Lawyers' TitleGuaranty Funds, in addition tohaving authority to make astudy of title insurance and titleguaranty funds, be authorizedto cooperate with state andlocal bar associations indicating interest in the SUbject."

and the same year the Committee onProfessional Ethics released FormalOpinion 304 which found, in part, that:

"A lawyer who merely providesa greater security for his clientthrough the use of a type of insurance or guaranty fund tobuttress his opinion or to provide for contingencies beyondhis knowledge Is not guilty ofunethical conduct."

The House of Delegates action in1967 endorsing the principles of bar-related title insurance organizations wascommented on that same year by aneditorial in the Journal of the AmericanJudicature Society, the lead line ofwhich was:

"One of the less conspicuousbut highly significant actions ofthe American Bar Association."

In t 972 the Special Committee became the Standing Committee onLawyers" Title Guaranty Fundscharged to:

"Study title insurance and titleguaranty funds, cooperate withstate and local bar associationsindicating an interest in lawyers' title guaranty funds, andstimulate efforts among lawyers and laymen to recognizethe essential role of the lawyerin real estate transactions."

DUTY OFTHE ORGANIZED BAR

Why should the organized bar takean interest in bar-related title insurance? Isn't this simply another commercial operation and if a few lawyersare interested in it, why not have themget together without the benefit oforganized bar support? In addition tothe urging of the ABA committee onUnauthorized Practice we find anAmerican Judicature Society editorialstating:

"Lawyers' professional organizations, when they establishtheir own title insurance operations, are taking effective stepsto maintain their place in thereal estate picture by usingbar-related title insurance tomeet the competition of insurance-related legal services. Inso doing, they are acting in accord with the highest conceptof the lawyer's service to theclient, are protecting the interests of the public, and arepromoting the efficientadministration of justice."

Title insurance is a fact of life that theprofession should not ignore. Thelawyer who does not furnish his clientwith indemnification for hidden defectsand honest error is inViting his client totake the next deal to a commercialcompelilor or to another lawyer.

HOW DOES BAR-RELATEDTITLE INSURANCE WORK?

The legal form that the bar-relatedentity takes is almost immaterial in

reaching the objectives. The FloridaFund is a Massachusetts Trust, the Illinois Fund is a profit corporation, theGeorgia Fund is a not-for-profit corpcration. Undoubtedly there would bea cooperative entity except that moststate insurance laws prevent it. Theoperation is very simple-a group oflawyers get together, pool their funds,hire an employee to handle supplies,purchase reinsurance to take care ofthe large loss, and deliver title insurance policy forms to the members. Themembers can then write title insurancein their office and send enough moneyto cover the overhead of a central office.

A bar-related company operates oneleven principles:

1. The motivating purpose is serviceto the public.

2. Control must be permanently andexclusively in active practicinglawyers.

3. The operation is essentiallycooperative.

4. Title assurance is available onlyfrom lawyers.

5. Financial responsibility is essen-tial.

6. Management by Lawyers.7. Cooperate with the Bar.8. Inform the public as to lawyers'

services.9. The attorney-client relation must

be maintained.10. Title assurance means profes

sional service and financial indemnity.

11. A broad bar base.

Bar-related title assurance companies are formed by practicing lawyers who pay one-time dues in the formof a cash advance to an organizationwhich will battle with the commercialcompetitors for the real property practice in a way that the bar association isneither financed nor oriented to do.

The Board of Directors of the Arkansas State Bar ratified the Articles ofIncorporation of Attorneys' TitleGuaranty Fund, Inc., a not-for-profitcorporation on September 19, 1980and elected Thomas R. Ledbetter ofHarrison as President, James H.McKenzie of Prescott, as VicePresident and James Young of Russellville as Secretary-Treasurer. E.Harley Cox of Pine Bluff has drafted theOffering Circular.

On November 1, the Board adopteda bUdget of $50,000 for the first year ofoperation. Each member firm will pay amembership fee of $250 for the firstmember and $100 for each additional

member of the firm up to a maximum of$500 with the firm buying an equivalentamount in fund deposit receipts.

TITLE INFORMATIONA problem that is frequently raised by

those opposed to bar-related titleinsurance is that of title information.They will point out that in a city likeChicago all the title information is withone or two large companies and therefore the lawyers are foreclosed fromcompeting. This is not true. The activebar-related companies have solved theproblem of title information in suchmajor cities as Miami, Chicago, Cleveland, Milwaukee, St. Louis, and Kansas City. A professional administratorpaid by the company can find sourcesof title information that are unknownand unavailable to the single firm.

CAPITALIZATIONStatutory capitalization problems

make it very difficult in some states forthe bar to raise sufficient funds to operate as a title insurer. This was true inGeorgia where they went ahead withtheir organization, incorpcrated, andthen acted as an agency for a title insurance company. If the bar will raisethe money, get the lawyers together,and hire an administrator, then theproblems of title information and titleinsurance can be solved. The thirdproblem of title appraisal can then behandled by the lawyer.

THE FUND AS AN EQUALIZERMany able real property lawyers are

agents of one or more commercial titleinsurance companies. In addition togetting a percentage of the fee which ischarged the client for the title insurancethe agency lawyer may get a percentage of the title insurance cost chargedto others as well as referrals from thecompany. It is an economic sacrifice forthis lawyer to become part of the Fundconcept because as soon as the Fundis created he has enabled his fellowlawyers to have a capacity to competeagainst him which they would not haveif he maintained an exclusive agency.The Fund is an equalizer in anotherway. A firm with 100 lawyers has acapacity to respond in damages whichis usually not available for a sole practitioner. The sole practitioner maypurchase liability insurance but hecannot match the assets of the large

partnership. The use of a bar-reiatedFund enables the sole practitioner tocompete in the market place not onlywith his commercial competitors, butalso with the large law firms.

HOW DOES BAR-RELATEDTITLE INSURANCE

HELP THE PUBLIC TOOBTAIN INDEPENDENT

LEGAL ADVICE?First, if title insurance is available to

the lawyer at its cost for the pure riskfactor then the addition of a legal feewill probably result in his service beingcompetitive with the fee charged by thetitle insurance company which necessarily includes an examination andanalysis fee.

Second, it can, through advertising,encourage the public to "see your lawyer" and perhaps the pUblic will get thisindependent legal advice when itneeds it most-at the time of hiring thebroker and preparing the purchasecontract.

Third, it can establish "chairs" for theteaching of real property law to encourage high quality education.

Fourth, it conducts courses for lawstudents, lawyers and lay employeesof lawyers in real property conveyanceprocedures.

Fifth, it is a center for real estateinformation exchange in the event ofnew law or local procedural problems.

Sixth, it has the interest, duty andresources to keep alert to the legislative process. When Congress was inan advanced stage of authorizingcommercial title insurance companiesto practice real property law at the instance of a commercial title insurancecompany it was the bar-related companies that sounded the alarm to theprofession.

Seventh, it can send its representatives to bar association meetings justas the commercial title insurance companies do to be alert for actions whichmay prejudice the bar and hence thepublic. The impressive voice thatcommercial title insurance has in barassociation activity is due partially to itsentertainment of the profession, butalso due to the work of its representatives in the sections and committees ofthe organized bar.

The future of real property practice inthe United States lies with the informed, independent lawyer. Bar-related lilal insurance is a "tool" to permitthe providing of this professional service at a competive price.f....


CONTEXTBy W. Christopher Barrier

THE WINDS OF CHANGEFuturists spend their time predicting the results of certain

trends, set in motions either deliberately or by chance. However, even the most astute futurists have difficulty dealingwith converging, and even contradictory, trends. Even thosedeliberately sel in motion may have results that were unintended and perhaps even unwanted.

Up to our ears, . ,The legal profession now finds itself at the confluence of

emerging trends which will significantly shape the function ofthe law and our part in it. These trends are only partiallywithin our control. We may find ourselves up to our ears inalligators, and without a stick.

At this point, for example, the future of federally fundedlegal services for the poor is very much in doubt. The statusof the law as a leamed profession has been under assault, atleast indirectly, by the Federal Trade Commission. Mandatory pro bono is approaching the status of an ethical duty.The work of the Kutak Commission has raised grave questions about the proper role of the lawyer, as has the growinguse of advertising by lawyers.

On the ethical edge...Advertising is perhaps the most tangible trend. I had

commented in an earlier column on the yellow page advertising in the Little Rock phone book. The changes in the lastyear are even more startling. Half-page display ads arecommon, several with photographs, and a number with slogans, such as "immediate action and reasonable rates","people you can talk to", and "over 65 years of combinedlegal experience".

A few tread close to promising results-"experiencedattorneys with successful track records". Others bump upagainst the limits of good taste-"it doesn't hurt to call if youhave been injured". Still others list credentials, such asdegrees, certifications in other professions, and professional memberships. One lawyer even advertises his ranking on the Arkansas bar exam!

"For legal action.....My favorite slogan is "For legal action-Cliff Jackson!",

although it does make you wonder how Cliff pronounces hislast name. For simplicity and directness, it is difficult to beatR. David Lewis, whose small ad advertises "marijuanadefense-civil rights."

As a matter of fact, lawyer Lewis' ad comes closer toproViding the sort of information a prospective client wouldneed than most of the other ads, which are long on hype andgenerally short on usable information. Of course, the twomost important things for a client to know what sort of work102/Arkansas Lawyer/July 1981

you do and are experienced at, and how much you chargefor it. Obviously, listing fees in the yellow pages for a year ata time is apt to be a little risky. HopefUlly, when we finally getaround to certifying specialist we can start producing lawyeradvertising which may be less entertaining, but which isactually useful to prospective clients.

The function of the law...But lawyer advertising in Arkansas to date has tended to

obscure rather than illuminate the function of the law andlawyers. The function of the law is to define and protect basicrights and to establish a degree of predictability as to theresults of our actions. The function of lawyers is to structurethat predictability, as in drafting contracts, and to participatein the resolution of conflicts. In large part because of theunavailability of certification of specialties, current lawyeradvertising does little to acquaint the public with these functions.

Lawyers and telephones...Interestingly, one of the more insightful comments I have

come across on the function of the law, especially in theUnited States, was made by a socialist non-lawyer. In hisbook, Tools for Conviviality, Ivan lilich classifies as "convivial tools" those instrumentalities and institutions whichare readily controllable by the individual, without being heldhostage by other forces. IIlich is suspicious of highly complex technology which is not directly utilizable by the individual, as contrasted with instruments such as the telephone, which can be operated by masses of people (andusually is on Monday momings and right before you try toleave town on vacation).

lilich likes the notion that any American can hire a lawyerand get into court and seek redress of a grievance, withoutpermission of any panel or group. (California Governor JerryBrown is a devotee of IIlich, which shouldn't be held againsteither of them.) In any event, lIIich has put his finger on twoelements which are essential to the proper functioning of ourlegal system-(1) availability of lawyers, and (2) ready access to our courts.

FTC and you and me...The essence of the FTC investigation was to determine

whether lawyer price-fixing was restricting access tolawyers, a bizzarre venture indeed in an era of increasingcompetitiveness among lawyers. The Kutak Report alsodemonstrated a curious misapprehension as to the properfunction of lawyers. It emphasizes the position of lawyers asofficers of the court and their duty to the system and to thepublic, as contrasted with their duties to their clients. It

overlooks the very elemental truth that a lawyer serves thesystem best by properly and vigorously pursuing the interests of the clients. Any significant departure from this truthserves neither the client nor the system.

Yes, we have no pro bono...Mandatory pro bono requirements raise additional ques

tions, particularly in a time when lawyer competence is ingrave question and when increasing specialization is a hardreality. In 1975, the House of Delegates of the American BarAssociation strongly endorsed pro bono work as a "basicprofessional responsibility of each lawyer engaged in thepractice of law... "The resolution cited the areas of povertylaw, civil rights law, public rights law, charitable organizationrepresentation and the administration of justice as needingparticular attention.

However, matching the lawyers with the cases presentssome problems. Fifteen years ago, every young lawyercould expect to get appointed periodically to defend a stolencar case in federal court, whether he or she was interested inthat type of case, or even genuinely qualified to handle it.Similarly, a poor person with a landlord problem is not goingto find a bond lawyer very useful, nor is the average drafter ofpension and profit sharing plans going to be on top of the lawof civil liberties. In such cases, the client is plainly better offand better served by a lawyer who wants to handle suchcases and is paid (albeit modestly) to handle such cases.

Some distortions•..Obviously, being provided a lawyer free of charge causes

some distortion in the lawyer-client relationship and the waycases are handled. For instance, a paying client may have todecide whether pursuing a certain course of action is costeffective or worthwhile. When the client does not have tomake that decision, cases which have an importance to theclient far beyond their actual merit may be pursued beyondreasonable limits. However, as lilich suggests, how muchgreater would the distortion be if permission had to begained from some board or commission by litigants beforeproceeding, whether paying or otherwise? Further, the distortion in the system is also evident in instances where aclient without funds must forfeit his rights unless he can finda lawyer who is both qualified to handle his case and alsowilling to do so on a pro bono basis.

Access to legal services needs to be maintained andimproved, both for those who can pay and those who cannotpay. For those who can pay, we need to overcome reluctance to approach lawyers by providing more informationabout fees and services which can be rendered.

Improved delivery•.•The delivery of legal services also needs to be improved

by matching up client needs with lawyer abilities, boththrough certification of specialities and through a systemwhereby the bulk of legal services to the poor are providedby lawyers with a special interest and training in the problems of these clients.

Financial barriers to lawyer access can be reduced (forbetter or worse) by competition, and also by devices such aspre-paid legal services. Again, for certain clients, only theelimination of fees will permit access.

Finally, equality of access to our legal system must bemeaningful. This does not have to mean guaranteed qualityor consistency of results, nor does it mean guaranteed access to the lawyer of a client's choice. After all, even payingclients are not guaranteed that any lawyer will accept anengagement. However, it is no less important to the integrityof our legal system for an aggrieved tenant to have this

dispute with his landlord properly resolved than it is for anaccused person to have his rights protected before a criminal tribunal. Rights established by law, whether criminal orcivil, are meaningless if they cannot be properly vindicated.

but unanswered questions...The need is plainly there and a number of mechanisms for

meeting that need have been tried. However, these verymechanism5---ijovernment funded legal services, voluntarypro bono, mandatory pro bono-raise basic questions aboutthe function of the law and the duty of lawyers. Specifically,whose responsibility it is to see that legal services are provided to the poor, that civil liberties issues are fully litigated,that charities stand on an equal footing with government andbusiness in the courts, and that justice is properly administered? Is it the responsibility of the legal profession? Or thepublic? Or of both?

I would strongly suggest it is the latter. At present, legalservices organizations of Arkansas apparently provide asubstantial portion of the legal representation received bypoor persons in the state. However, by their own admission,without the assistance of the private bar, they would beoverwhelmed. If the activities of these agencies are significantly curtailed, how will the ethical responsibility of lawyersto meet such needs be fulfilled?

... and unwanted answers•.•The cases can be spread among the bar generally,

perhaps on a mandatory basis, but the result will be representation in a good many instances by lawyers notgenuinely qualified to handle the cases. The legal servicesagencies could continue to function, financed perhaps inlarge part by an assessment on lawyers. Quite candidly, Iam not at all sure that this is not the appropriate way tohandle it. However, even beyond the financial burdens onthe private bar, this has serious limitations, particularly withreference to the independence of the agencies.

In any event,lawyers must face the prospect of having theresponsibility for representation of the poor (and the unpopular) thrust back upon them. At a time when they are grapplingwith questions as to the appropriate role of advertising, theirduties to the pUblic as opposed to their clients, and at a timewhen their very status as a profession is under attack, theymay find that some very basic decisions as to the function ofthe law and the way they enhance that function as lawyersare being made in a context wholly divorced from the issuesand principles which they hold dear. f....

july 1981/Arkansas Lawyer/103

In jrflemoriamTHE LABOUR OF THE RIGHTEOUS TENDETH TO UFE.

Proverbs 10:16

Col. Van H. AlbertsonRetired Col. Van H. Albertson, 71, of

Huntsville, died in OCtober. He wasborn in 1909 in Beggs, Okla. and hadpracticed law for 42 years before retir·ing in Huntsville.

He was a member of the AmericanLegion, Washington County and theFayetteville Country Club. He served30 years in the Air Force includingcombat in Southeast Asia and was aJudge Advocate of General Ryan'sstaff from 1956-1965.

He is survived by his wife, Mrs. ChloeDean Parker A1berston of the home;two daughters, Sherry Elaine AI·bertson and Patti Jane Albertson ofCalif; two sons, Robert D. Albertsonand John Richard Albertson, both ofFayetteville; a brother, Joe Albertson;and a sister, Marguerite Albertson ofVenice, Fla.

Lily Mae Bryan carmichaelMrs. Lily Mae Bryan Carmichael,

aged 89, of Little Rock, a lawyer andformer executive secretary, directorand trustee of the Arkansas LawSchool in Little Rock, died February 16,1981. She was the widow of JUdgeJ. H. Carmichael, a former dean of theLaw School.l04/Arkansas Lawyer/July 1981

She was born in Gainesville (GreeneCounty) and studied at Arkansas Col·lege at Batesville before receiving herlaw degree from the Arkansas LawSchool (now UALR School of Law).

Mrs. Carmichael was the author oftwo books of poetry, "Hilltop Reveries"and "Across the Years." She was listedin "Arkansas Lives," "Who's Who ofAmerican Women" and "TwoThousand Women of Achievement:'

She is survived by a sister, Mrs.Helene McMurtry of Little Rock.

Memorial may be made to the JudgeJ. H. Carmichael Scholarship Fund atthe University of Arkansas School ofLaw.

Stanlay Ellington ColemanStanley Ellington Coleman, aged 75,

of Batesville, died January 30 in a LittleRock hospital. Born in Batesville, hewas a former owner of the Amoco OilDistributorship in Batesville.

He was a graduate of the Universityof Arkansas Law School and a memberof the Arkansas Bar Association andthe Independence County Bar Associ·ation.

He was the son of the late JudgeDean H. Coleman and Mrs. NormaLanders Coleman. He is survived byhis wife, Mrs. Kathryn Berry Coleman;a daughter, Mrs. Linda Payne of PineBluff; two sisters, Mrs. Nancy Warrenof Mesa, Ariz., and Mrs. Mary C. Inmanof Pine Bluff; two grandchildren, Stan·ley Payne and Andrea Payne also ofPine Bluff.

.Falon A. Fraley

Falon A. Fraley, lawyer and formerlegislator, died January 14, 1981, inLas Vegas, Nev., after a long illness.

In 1955, he moved to Las Vegasfrom Arkansas where he had been apracticing attorney and a real estatebroker. He had served in the ArkansasLegislature under three govemors.

He is survived by his wife, Norma; asister, Lorene Ogilvie of Las Vegas;and a brother, John L. Fraley ofJacksonville, Ark.

Eugene SloanEugene Sloan, 88, a prominent

Jonesboro attorney and landowner,died saturday, February 14, 1981, at51. Bernard's Regional Medical center.

A native of Powhatan, he moved toJonesboro in 1915 to establish a lawpractice and continued to conduct per-

sonal business until a few weeks before his death.

During his extensive businesscareer, Sloan was president of E.Sloan Farms, Inc., and of the B&Gland Co., managing family-ownedfarms and related properties. He wasvice-president of People's First National Bank, a predecessor to FirstBank and Trust, and served on anumber of bank boards in CraigheadCounty. He was a past president of theboard of directors of the Federal landBank Association of Jonesboro.

He is survived by a daughter, Patricia Sloan Chambers of Danville; 18grandchildren; and nine great-grandchildren.

Grover Cleveland CarterGrover Cleveland Carter, aged 96, of

Ozark, who practiced law in FranklinCounty for 45 years, died in October1980.

A former mayor of Ozark, he was onthe Selective Service Board in WorldWar I, World War II, and the KoreanWar. He was a member of the OzarkSchool Board and served four years onthe state Alcohol Beverage ControlBoard.

He was a member of the Ozark FirstChristian Church.

Survivors are his wife, Mrs. lela Carter; four sons, Wayne and Glenn Carterof Ozark, Roger Carter of little Rock,and Harold Carter of St. Joseph, Missouri; two daughters, Mrs. Nellie Melton of DeRidder, la., and Mrs. RuthWacaster of Fort Smith, 11 grandchildren and 28 great-grandchildren.

Percy laFayette CopelandPercy laFayette Copeland, aged 76,

of Newport, a prominent local businessman, died November 4, 1980,after a long illness.

In 1946, Mr. Copeland helped organize the Merchants and PlantersBank of Newport, and was one of itsoriginal stockholders. He was presi·dent of the Arkansas Banker's Association in 1963 and 1964. He was also oneof the organizers of the Industrial Development Commission in Arkansasand served on its first board.

He is survived by his wife, Mrs. AidaGarland Slayden Copeland of New-

port; three brothers, Gerald Copelandof Branson, Mo., Kermit Copeland ofDayton, Ohio, and leland Copeland ofCleveland, Ohio.

Frank WynneFrank Wynne, aged 56, of Fordyce,

former prosecuting attorney andformer Fordyce city attomey, died inDecember 23, 1980.

He was an active member of the FirstUnited Methodist Church of Fordyce,where he was a lay speaker and amember of the official Board of theChurch.

Wynne served as Fordyce City Attomey from 1952 to 1960 and was prosecuting attomey from 1961 until 1978.

He was graduate of the FordyceSchool System, the University ofTexasat Austin and the University of Arkansas law School at Fayetteville. He wasa member of the Arkansas and American Bar Associations.

He is survived by his wife, SueAttwood Wynne of Fordyce; a son,Frank Wynne, Jr., of Fordyce; threedaughters, Mrs. Mary Still of Columbia,Mo., Mrs. Susan Woodson of NewYork, and Miss Martha Wynne ofFayetteville; his mother, Mrs. AgnesWynne Coffee of Fordyce; fourbrothers, T. D. Wynne, Jr., of Fordyce,Hal Wynne of New Orleans, and Dr.George F. Wynne; two sisters, Mrs.Annett Shipman of Scottsdale, Ariz.,and Mrs. Agnes Phillips of little Rock;and a grandchild.

John E. MillerJohn E. Miller, 92 of Fort Smith, a

former U.S. senator who retired as afederal judge in 1979 at the age of 91,died Friday, January 30, 1981, at a FortSmith nursing home.

Miller was appointed to the bench in1941 by President Franklin D.Roosevelt and served until arthritisforced him to step down in November1976.

He was bom near Aid, Mo., on May15, 1888. He attended Cape GirardeauTeachers' College in Missouri and Valparaiso University in Indiana. He received his law degree from what wasthen the University of Kentucky lawDepartment at lexington in June 1912before moving to Searcy, Ark. There,

he was elected city attorney, markingthe start of a political career that neverknew an election defeat.

It was reporled that Miller was sixmiles out in Chesapeake Bay whenword reached him in August 1937 thatrank-and-file Democrats wanted him tooppose Arkansas Gov. Carl E. Bailey ina special election for the Senate seatvacated by the death of Sen. Joe T.Robinson of little Rock. His election tothe Senate marked the first time since1860 that an Independent defeated aDemocratic candidate in Arkansas.

He is survived by his wife, Mrs. EthelSkinner Miller; a son, Judge John Miller, Jr., of little Rock; a daughter, Mrs.B. C. Goodlow of Virginia; five grandchildren; and a great-grandchild.

Memorials may be made to First United Methodist Church, Old FortMuseum in Fort Smith, or Judge JohnMiller Scholarship Fund clo ArkansasBar Foundation.

Pat MahaffyJUdge Pat Mehaffy, aged 76, of

Westriver Tower, retired chief judge ofthe U.S. Eighth Circuit Court of Appeals, died Saturday, January 31,1981.

Judge Mehaffy was appointed to theappellate court by the late PresidentJohn F. Kennedy in 1963 after a 36year career in private law practice atlittle Rock, where he had been seniorpartner in the firm of Mahaffy, Smithand Williams.

Judge Mahaffy was sworn in as amember of the Eighth Circuit Court August 26, 1963. He became the thirdArkansan to be named to the appellatecourt since it was created in the 1880's.

He was a fellow of the American College of Trial lawyers and a member ofthe Pulaski Heights United MathodistChurch.

Survivors include his wife, KathrynKurtz Mehaffy of the home; a son,Thomas Michael Mehaffy of littleRock; a daughter, Mrs. Kathryn Beairdof Shreveport; a brother, Carl P.Mehaffy of Fort Worth; a sister, Mrs.Mary Mehaffy Black of Cheyenne,Wyo., and five grandchildren. Memorials may be made to the Pat MehaffyScholarship Fund at the University ofArkansas School of law at little Rock.

......July 198I/Art<ansas lawyer/lOS

LEGAL ECONOMICSBy: Frank Arentowicz, Jr.ALTMAN & WElL, INC.

Management ConsultantsArdmore, PA

USE OF WORD PROCESSING EQUIPMENTFOR FINANCIAL ACCOUNTING IN SMALL LAW OFFICES

IS IT PRACTICAL?Several word processing vendors

are developing add-on system capabilities to enable processing offinancialrecords (timekeeping, billing, accountsreceivable, general ledger, etc.) onword processing equipment. Newcapabilities include mathematicalcomputation (add, subtract, multiplyand divide), boolean logic (equal to,less than, compare, etc.) and sort programs (numeric and alphabetic).

Many of these offerings have disappointed law offices who have attempted to automate financial accounting functions on word processingequipment. Why?

ON-LINE STORAGEMost word processing systems do

not have sufficient storage capacity toperform financial applications. Moststand-alone word processing units insmall law offices (1 to 10 lawyers)utilize mag cards or floppy diskettes foron-line storage. Mag cards hold 5,000characters of information, while standard floppy diskettes (about the size of45 RPM records) hold approximately250,000 characters of information.While some word processing units operate with dual floppy diskettes, even500,000 characters of "on-line" storage capacity is often insufficient tostore all of an office's unbilled time orwork in process inventory.

A solution to the on-line storageproblem often suggested by vendors isto split the unbilled time data file. Forexample, clients with last names beginning with the letters A to D are keyedon one floppy diskette, E to H onanother, etc. With this approach timeslips or time entries from a sheet mustbe manually sorted or segregated before being keyed to multiple diskettes.10B/Arkansas Lawyer/July 1981

The operator of the word processingunit then must manually retrieve, insertto the machine and refile mUltiple diskettes. As more and more time entriesand client files are added to the unbilledtime computer file, more manual activity is required, resulting in at best a"semi-automatic" accounting system.

A second method often recommended by vendors to reduce the sizeof the unbilled time fiie is to eliminatekeying of narrative detail onto the diskette. Narrative descriptions of servicesoccupy the most number of characterson the floppy diskette. With this approach, only client/matter numbers,date worked, attorneys' initials andhours worked are keyed to the system.The word processing unit will then sortunbilled time entries by client/matternumber, add the unbilled hours and, incertain cases, multiply unbilled hoursby appropriate attorney's hourly billingrate. Thus, the word processingequipment is the only performing functions a desk calculator can perform(adding and multiplying), but at a moreexpensive price. Time slips must stillbe sorted manually and matched withunbilled time summaries produced bythe word processing unit before alawyer can draft a bill. Statements requiring descriptions of services mustbe dictated or drafted from the timeslips. Drafts of final bills cannot beautomatically produced by the system.

The awkward manual proceduresdiscussed above can be avoided if theequipment performing financialaccounting has sufficient on-line storage capacity. Computer equipmentwith "hard disk" storage offers such asolution. Hard disks are about the sizeof 33 RPM records and hold millions ofcharacters of information.

SOFTWAREAnother limitation of word proces

sing units utilized for financial accounting is inadequate software (programs).Many word processing units are"hard-wired" and cannot be programmed. Additional equipment capabilities can only be added by rewiringthe word processing equipment. Allmag card equipment and many olderfloppy diskette-based units (Vydecmodels 1146 and 1400, for example)are hard-wired.

Newer diskette-based word processing units are classified as "softwired," if they are programmable. Thismeans that the word processing unit isdesigned similar to data processingequipment. A programmer can usecomputer language to instruct theequipment what functions to perform.The difficulty law firms experience inthis area is that the programming languages utilized by the word processingmanufacturers are often not identical toprogramming languages utilized bydata processing (DP) programmersand manufacturers. The programminglanguage problem has restrictedsoftware development of financialaccounting application programs.Word processing vendors must traintheir own programmers. Law firmsoften cannot find programmers trainedin appropriate languages on the labormarket.

MANAGEMENT REPORTSTimekeeping should form the foun

dation for two important functions in alaw firm: (1) billing, and (2) provision ofmeaningful management information.A combination of limited software, slowsort programs and limited on-line stor-


~-----IIII

JURIS DICTUMby Robert L. Lowery

Executive Secretary, Judicial Department

FEDERAL HABEAS CORPUS: CHANGE SOUGHTThe Seventy-third General Assem

bly of the State of Arkansas has requested a modification of the HabeasCorpus provisions of 2B USC, Section2254.

The proposed changes, which wouldrestrict the availability of federalhabeas corpus to state prisoners, areapparently directed at speeding up thetime in which decisions on cases aremade final.

This request is contained in SenateConcurrent Resolution 4, set out below. [The omitted provisions are inbrackets]; the new language is inbold type:

SENATE CONCURRENT RESOLUTION PETITIONING THEUNITED STATES CONGRESSTO AMEND 2B USC Sec. 2254TO MAKE VARIOUS MODIFICATIONS OF THE FEDERALHABEAS CORPUS RELIEFAVAILABLE TO STATE PRISONERS.BE IT RESOLVED BY THESENATE OF THE SEVENTYTHIRD GENERAL ASSEMBLYOF THE STATE OF ARKANSAS,THE HOUSE OF REPRESENTATIVES CONCURRINGTHEREIN:

That the United States Congress ishereby respectfully requested toamend 2B USC, Section 2254 (d) toread as follows:

"(d) In any proceedings instituted ina Federal court by an application for awrit of habeas corpus by a person incustody pursuant to the judgment of aState court, a determination after ahearing on the merits of a factual issue,made by a State court of competent

jurisdiction in a proceeding to which theapplicant for the writ and the State or anofficer or agent thereof were parties,evidenced by a written finding, writtenopinion, or other reliable and adequatewritten indicia, [shall be presumed tobe correct], shall not be redetermined or relitigated by a jUdge or acourt of the United States, unless theapplicant shall establish or it shallotherwise appear, or the respondentshall admit:

(1) that the merits of the factual dispute were not resolved in the Statecourt hearing;

(2) that the factfinding procedureempioyed by the State court was notadequate to afford a full and fairhearing;

(3) that the material facts could notbe developed at the State courthearing;

(4) that the State court lacked jurisdiction of the subject matter or overthe person of the applicant in theState court proceeding;

(5) that the applicant was an indigent and the State court, in deprivation of his constitutional right, failedto appoint counsel to represent himin the State court proceeding;

[6] [that the applicant did not receive a full, fair, and adequate hearing in the State court proceeding; or]

[7] [that the applicant was otherwisedenied due process of law in theState court proceeding;]

[B] (6) or unless that part of the record of the State court proceeding inwhich the determination of such fac-

tual issue was made, pertinent to adetermination of the sufficiency ofthe evidence to support such factualdetermination, is produced as provided for hereinafter, and the Federal court on a consideration of suchpart of the record as a whole concludes [such factuai determinationis not fairly supported by the record]that there is no evidence to support such finding. No evidentiaryhearing may be conducted in theFederal court when the statecourt records demonstrate thefactual issue was litigated and determined, unless the existence ofone or more of the circumstancesrespectively set forth in paragraphs numbered (1) to (6), inclusive, is shown by the applicant." [And in an evidentiary hearingin the proceeding in the Federalcourt, when due proof of such factual determination has been made,unless the existence of one or moreof the circumstances respectivelyset forth in paragraphs numbered(1) to (7), inclusive, is shown by theapplicant, otherwise appears, or isadmitted by the respondent, or unless the court concludes pursuant tothe provisions of paragraph numbered (B) that the record in the Statecourt proceeding, considered as awhole, does not fairly support suchfactual determination, the burdenshall rest upon the applicant to establish by convincing evidence thatthe factual determination by theState court was erroneous.]

BE IT FURTHER RESOLVEDthat the United States Congress ishereby respectfully requested toamend 2B USC, Sec. 2254 by inserting new subsections (g) and (h)immediately following the presentsubsection (f) to read as follows:

continued on page 1DBjuly 1981 /Arkansas Lawyer/107

Legal Economics,continued from page 106

age restricts provision of meaningfulmanagement information, even whenbilling is assisted by timely time recordturn-in. Meaningful management information includes aging of unbilledtime; aging of accounts receivable;hourly yield by client, working attorneyand area of practice; and billing realization. Firms using their word processingunits only as a billing aid have discovered only the tip of the iceberg.Much more can be achieved with theproper selection of hardware (equipment) and software.

Law firms evaluating their alternatives should talk to reference of wordprocessing vendors performing financial accounting on their equipment.

Juris Dictum,continued from page 107

"(g) In a habeas corpus proceeding brought in behalf of a person incustody pursuant to the judgment ofa state court, if the federal questionpresented was not properly presented under state law in the statecourt proceedings both at trial andon direct appeal, the claim may notbe considered or determined by ajUdge or a court of the United States,unless the petitioner establishes:

(a) the federal right asserted didnot exist at the time of the trialand that right has been determined to be retroactive in itsapplication; or

(b) the state court proceduresprecluded the petitioner fromasserting the right sought to belitigated; or

(c) the prosecutorial authoritiesor a judicial officer suppressedevidence from the petitioner orhis attorney which preventedthe claim from being raised anddisposed of; or

(d) material and controllingfacts upon which the claim ispredicated were not known topetitioner or his attorney and


Quite often lawyers have installed financial packages based on theappearance of sample reports provided to the firm. This is not enough toevaluate a system thoroughly.

TIME REQUIREMENTSThe time it will take to key in time

records, disbursements, cash receipts,accounts receivable and adjustmentsis often underestimated. The time ittakes to process reports is usually long,due to poorly written programs and/or aslow sorting process. Slow sorting maybe a programming problem and/or anequipment limitation. The relativelyslow rotational speed and access timeof diskettes result in slow sorting andretrieval of information. Hard disks alleviate the problem, since their rotational speed and access time are ten ormore times faster than diskettes, and

could not have been ascertainedby the exercise of reasonablediligence.

(h) No petition filed in behalf of aperson in custody pursuant to thejudgment of a state court shall beconsidered or determined by ajUdge or court of the United States ifit is not filed within one year from thedate of the state court judgment andsentence became final under slatelaw, unless the federal right asserted did not exist and that righthas been determined to be retroactive, in which case the petitionmay be entertained within threeyears from the date said right wasdetermined to exist"

BE IT FURTHER RESOLVED thatupon adoption of this Resolution theSecretary of the Senate shall transmitto each member of the Arkansas Congressional Delegation an appropriatecopy hereof.

One major effect of the changeswould be to close the door on litigationof written state court decisions unlessone of the enumerated conditions ismet. Under the new provisions the allegations could not be made that theapplicant did not receive a full, fair, andadequate hearing in the state courtproceeding, or that the applicant wasotherwise denied due process of law in

sort programs utilized with hard diskunits are usually more sophisticated.

THE FUTURESome word processing vendors now

offer hard disks with multiple terminalshared and distributive logic word processing systems. As 1) the cost ofhardware declines, 2) programminglanguages utilized by word processingvendors become identical or similar todata processing programming languages, and 3) software for financialaccounting improves, word processingunits for both text and data processingwill become more practical. Until thattime, law offices considering utilizationof diskette-based word processingunits for financial accounting shouldcarefully evaluate this approach beforea decision is made. f....

the state court proceeding. Unless theapplicant could show the existence ofone or more of the enumerated circumstances, no federal evidentiary hearingcould be had if the state court recordsdemonstrated the factual issue waslitigated and determined.

The proposed new subsection (g) 28USC, Section 2254 would require thefederal question to have been properlypresented under state law in the statecourt both at trial and on direct appeal.

The proposed subsection (h) to 28USC, Section 2254 would require a petition for habeas corpus to be filedwithin one year from the date the statecourt judgment and sentence becamefinal. If the petitioner could show thatthe federal right asserted did not existand that it is retroactive, then thehabeas corpus petition could be filedwithin three years from the date theright was determined to exist.

Whether the Congress will adopt anyor all of the changes requested by theArkansas General Assembly, is ofcourse speculative. If the politicallyconservative trend shown by the 1980elections continues, the desire for "lawand order" and the widespread frustration with what is perceived by many asan inability of the courts to deal withcrime, may lead to the adoption ofsome of the changes requested by theArkansas General Assembly. I.....

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~-------------------------------------------------------------------------------------------------------~

ARKANSASBAR fOUNDA TION

By: Sidney H. McCollumChairman

------------.....-------It doesn't seem possible but I realized as I sat down to

prepare this report that it was the final report of the Foundation year. It seems as though we have just begun withseveral of our projects and with our goal to try to raise thelevel of professionalism among the members of the Bar. Butperhaps the fact that we are not finished, haven't reached allof our goals, and have not completed all of our projects is agood thing. Certainly we want these projects and goals tocontinue and the Foundation to continue to work toward thebetterment of the profession and of our system of justice,and maybe the fact that we have projects or goals onlypartially attained will keep us working in the years to come.

Herman Hamilton will become Chairman of the Foundation in June by virtue of the automatic elevation provision ofour bylaws. I know Herman has been very interested in ourprojects for the year and has been very helpful in suggestions and perhaps in holding back on my reins a little bit tokeep our programs practical and in the "real world". I knowHerman has many good ideas for projects for the next yearespecially changing the emphasis of our scholarship program to include financial need as a major consideration ingranting the scholarships along with scholastic ability orachievement. I also know that he has a real interest in ourpublic service television program which we have just begunand I expect to see that grow and blossom during the comingyear.

You must remember that I am writing this article during thelast week in March and many of the projects that we have setup and which are on the drawing board, or else in committee,may be completed by the time you are reading this. As awhole I should say that I think it has been a good year for theFoundation and much has been accomplished even thoughI feel that we have fallen short of our goals. In the fall weconducted a free symposium at the Law School in Fayetteville concerning the avoidance of malpractice. This waswell received and the Malpractice Education Committee ofthe Arkansas Bar Association adopted our format and program and proceeded with an excellent project of taking theprogram throughout the State so that it could be more available to members all over the State. The Foundation washappy to cooperate with the Malpractice Education Committee of the Association by participating on the panels andassisting in setting up the program throughout the State. Ibelieve the programs were well received and were worthwhile in defining the perimeters of the problem of malpractice.110/Arkansas Lawyer/July 1981

The Foundation has been extremely active in publishingpamphlets and booklets to assist each of us in our practiceand our clients with specific problems that they may have.For instance, I'm sure you all know the excellent work thatBob Fussell has done with develping a program to providelegal services for the deaf and hearing impaired. The Foundation was pleased to assist in the program this year byproviding pamphlets and publication of notices for the mockcourt trial held in April as well as providing funds for preparing a booklet on interpreting for the deaf in court and administrative settings. This booklet was provided for judges,attorneys, law enforcement agents and administrators inpointing out the need for assistance for the deaf and hearingimpaired and also providing needed information wherefurther assistance could be obtained. Bob Fussell had plentyof help from the Arkansas Association of the Deaf, Inc. inproviding information for the booklet but the Bar Foundationprovided the funds for printing the booklet and distributing itthroughout the State.

Also the Handbook for Personal Representatives in Arkansas was completed by the Probate Law section of theAssociation. This handbook was then published and distributed as a public service by the Foundation. The Foundationalso published a list of Legal Service Programs available inthe State along with some information for the public aboutLegal Services and how they can become available to them.

Perhaps the largest pUblishing project undertaken thisyear was a project that was actually funded last year. It wascompleted this year to be distributed in connection with LawDay, that is the Arkansas Senior Citizen's Handbook: ALegal Guide. This booklet was prepared by the younglawyers section of the Arkansas Bar Association and againpublished through funds made available by the Foundation.So you can see from this partial list of projects that wereundertaken by the Foundation, publications letting thepeople know about information prepared by others, wassubstantial this year and there is the possibility that two otherpamphlets may be available before the end of this Foundation year.

Perhaps the biggest undertaking of the Foundation thisyear was the assistance in the effort of bringing the MagnaCarta to Little Rock for public display. The Foundation contributed not only financially to this project in their effort tohelp get it off the ground and get people in the area in-

terested, but also assigned Mr. Bob Brown, the head of ourPublic Education Committee, to serve on the committeebringing it to the State and to provide as much help asnecessary from the Foundation to see that the project wassuccessful. This project was an excellent beginning for ourLaw Week or Law Month activities for this year and provideda unique opportunity for the citizens and the school childrenof the State to view one of the documents actually signed in1215 which is the basis of our Declaration of Independenceand Constitution. The Foundation assisted in making thisdocument available to all the association members in theState at a special reception in the old state house in LittleRock as well as making it available to the public in theCapital for four days in April. I can't think of a more meaningful way for the Foundation to spend its funds than to makethis sort of information available to the public and to ourprofession. HopefUlly this will help to instill a feeling of pridein our profession, in our country and in our legal systemwhich will aid each and every one of us to take pride in beinglegal professionals.

The Board also embarked upon a rather broad publicservice television program. This program has been developed and is being chaired by Mr. David Malone, AssistantDean at the Law School in Fayetteville. The purpose ofthese programs will be to provide video tapes for educational television and other television stations which will explain to the lay pUblic, and I'm sure to some lawyers, justwhat should be expected in a visit to a lawyer, and howcourts operate, and various other things which will assistlaymen in understanding the profession. The proposal atthis time is that ten separate programs would be produced ata total cost of more than $7,500.00. The Foundation approved the sum of $750.00 for a pilot program to be produced so that the Foundation could then look at the productand determine how far to go and whether or not to proceedwith the program. This certainly has the potential of beingvery important to the entire Bar as well as the citizens of theState. It is anticipated that these programs could be used inschools for seminars and many other uses separate andapart from being shown on public television.

The Foundation also served as the sponsoring body for anextensive study into the Juvenile System in the State andproposals for changes in the Statutes pertaining to Juvenilesand Juvenile Court procedures. This was a study that wasfunded through an LEAA Grant with the Foundation serving

WHAT do YOU

about the. ..

ARKANSAS BAR

FOUNDATION)

as sponsoring or responsible organization for the study. Adistinguished group of experts in the field of juvenile advocacy and juvenile court procedure as well as enforcementofficers and judicial officers who deal with the problem dailywere placed on the Task Force and were very successful ingetting their proposals passed by legislature. Their work willbe invaluable for years to come as we continue to work tobetter our Juvenile System. This program was headed up byMr. Tom Carpenter of North Little Rock and we certainlythank him for his efforts in bringing the group together andcoming up with a fine finished product just as we thank theentire task force and its support staff for its hard work.

Again this year we are rewarding excellence in legal writing in both the Law School and in writing for the ArkansasLawyer. We will also recognize excellence in our professionby naming the outstanding lawyer and outstanding lawyercitizen at the upcoming annual meeting at Hot Springs inJune.

It is gratifying to report that our Trust Fund now totals over$400,000.00, including more than $90,000.00 in our scholarship funds. However, this means that we will only haveabout $12,000.00 in scholarship money actually given to thescholarship recipients. This fund needs to grow much larger,for indeed it is one of the main purposes for our Foundation.Only the income from the fund is used. We have also committed some of the Foundation's funds for the funding of theLaw Review, certain monies needed for Law Week at bothLaw Schools, as well as funding the projects of our variouscommittees.

From the above you can see that it certainly has been anactive and productive year. However, I believe that there isstill much to be done. You have heard often that our Foundation has been recognized as the leading Bar Foundation inthe United States. After being involved with Foundation workfor the last four years I have no doubt that this is true. I alsohave no doubt that in order to maintain this level we mustcontinue to grow and to be active, we must set our goals highand then reach them. We must continue to strive to increasethe amount of scholarships we can give, to otherwise betterthe legal education offered in our State; to support andencourage continuing legal education among the membersof our Bar, and to sponsor, support and fund as manyprograms or projects that are necessary to keep each of ourmembers ever mindful of their obligation as legal professionals. This may mean sponsoring programs that would notbe economically successful for the Continuing Legal Education Program or for the Association to sponsor. It meansspending money for programs or projects which might affectonly a small portion of the Bar which are vitally important.And most of all it means commitment of our resources,talents and funds toward educating the public to the problems of the profession, problems of the jUdicial system andmore importantly to how we are going about solving thoseproblems.

It has been a very good year, an educational year for meand I thank you very much for allOWing me to serve as yourChairman. I look forward to bigger and better things in thefuture for the Foundation. ~


ARKANSAS BARASSOCIATION

JUNE 3-6, 1981ARLINGTON HOTEL

83rdANNUAL MEETING

II

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by Raymond Weber

PROCEEDS AND PREMIUMS

TAXATION OF LIFE INSURANCE

tate Planning Section of the Arkansas Bar Association. His article isanother in the current series furnished by the section.

Raymond Weber is practicing lawwith R. L. Walloch in Little Rock. Heis a certified Public Accountant; andmember of the Taxation, Trust & Es-

For the general practitioner, the aspects of the taxation of life insuranceproceeds and premiums have littlebearing on his day to day practice. Inmost instances, the proceeds do notrepresent taxable income to the beneficiary. And the payment of premiumsare not deductible from taxable income. There are, however, certain exceptions to this generalization whichwill be the subject of this article.

Policy ProceedsLife insurance proceeds payable by

reason of death are generally exemptfrom income tax under Internal Revenue Code Section 101 (a) whetherthe beneficiary is an individual, a corporation, a trust or the insured's estate.Since the exclusion is stated in terms ofamounts received under life insurancecontracts by reason of the insured'sdeath, consideration must be given towhat constitutes "life insurance."Briefly, a contract constitutes life insurance if it provides protection againstthe risk of early death. However, proceeds of a contract which is clearly lifeinsurance may be taxable as ordinaryincome if the owner-beneficiary doesnot have an insurable interest in theinsured. Generally, an insurable interest is one arising from the relationship between the insured and the partyowning and paying for insurance onanother's life, either as creditor, business associate or relative by blood ormarriage. One with an insurable interest presumably has more to gain bythe insured's continued life than fromhis death. Where the requisite interestis lacking, life insurance is viewed as awagering contract, entered for profit,and the exclusion from gross income isnot available.'114/Arkansas Lawyer/July 1981

Typical insurable interests are the interest a corporation has in a "key" man,the interest of a partnership or itspartners in other partners, and the interest an individual has in a relative.Insurance is often held or taken out bya trustee of an insurance trust, which isalso named as beneficiary under thepolicy. In such cases, the presence ofan insurable interest is determined atthe beneficiary level, rather than thetrustee level. Since the beneficiaries ofsuch trust are typically the spouse anddescendants of the insured, the requisite interest is generally present and theincome tax exclusion is available. Therequirement of an insurable interest ismet if the interest is present at the inception of the policy. Thus, if theowner-beneficiary has an insurable interest in the insured when the policy istaken out, but not when the policy matures as a death claim, the proceedswill nonetheless qualify for the Section101 (a) exclusion.

Generally insurance proceeds payable to a corporation which has insuredthe life a key man are excluded fromthe corporation's income, however ifproceeds of a policy paid for the corporation find their way to a shareholder,the proceeds may be taxed as corporate dividends or compensation.' Thistreatment probably cannot be avoidedby naming the shareholder directly as abeneficiary under a policy, if the premiums are in fact paid by the corporation. If a corporation pays the premiums on life insurance on any of itsemployees, the corporation shouldgenerally own the policy and be thebeneficiary. While it may be possible toavoid dividend treatment on the proceeds if the corporation has no ownership rights in the policy, the service has

ruled that premium payments made bya corporation on such policies payableto shareholders are nonetheless taxable as dividends.'

The Tax Court in Estate of Horne'fashioned an important exception tothe dividend treatment of proceeds of acorporate-owned policy which are distributed to a shareholder. That caseheld that such treatment would notapply where, for estate tax purposes,Treas. Reg.§20.2042-1 (c)(6) attributesto a corporation's sole or controllingshareholder a corporation's incidenceof ownership in a policy on theshareholder's life, rendering the proceeds includable in the decedent's estate. The Court reasoned that the IRScould not have it both ways by treatingthe same transaction as a transfer fromthe decedent for estate tax purposesand a distribution from the corporationfor income tax purposes.

The I.R.C. Section 101(a) exclusionof life insurance proceeds from incomeis limited to the lump sum amount payable at death. Death benefits paid ininstallments are prorated to determinewhat portion of any given payment isexcludable. If the death proceeds areleft on deposit with the insurance company under an interest only option,however, the interest is taxable incometo the beneficiary under Section101 (c), regardless of whether theowner or the beneficiary elected theoption. Where proceeds are payableunder a "life income" or "installment"option, the lump sum is prorated overthe payment period and the proratedportion of each payment is excluded

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payments are not includable in theemployee's income.'

The $50,000.00 exemption is available only if the coverage is on the life ofan employee as compensation for hisservices as such. Thus, under Treas.Reg. §1.79-1(b)(1), the cost of coverage on a self-employed person, suchas a partner or sole proprietor, is notexempt to him even though he is included in the coverage for hisemployees. Coverage of an individualin his capacity as owner or as a directoralso does not qualify. In addition, toqualify, the coverage must constitutegroup term life insurance under theregulations, which set forth detailed requirements for qualification as a "Section 79 plan."

The Table 1 premium amounts arerelatively low as compared to the P.S.58 rate, which impute economic benefits of permanent insurance toemployees. However, unless it bethought that group term would therefore necessarily be preferrable to a splitdollar arrangement with respect topermanent insurance, the practical difficulties of continuing coverage afterthe employee reaches age 65 must betaken into account. Although such con-


fers definite tax advantages to theemployee, within limits. I.R.C. Section79 provides that up to $50,000.00 ofgroup insurance may be provided to anemployee without an income tax effectto the employee. The cost of carryingthe insurance is a deductible businessexpense of the employer under I.R.C.Section 162(a). It the group term insurance coverage exceeds $50,000.00,the employee is taxed on the cost of theexcess protection, calculated on amonthly basis, according to the protection provided to the employee duringhis taxable year, regardless of whenthe employer pays the premiums. Thedetermination is made in accordancewith Table 1 of Treas. Reg. §1.793(d)(2). It the employee contributes towards the cost of the insurance, hiscontribution is allocable to coverage inexcess of $50,000.00 and, thus, is subtracted from the amount which wouldotherwise be taxable to him. If anemployee assigns all of his interest in agroup term policy, employer paid premiums for coverage in excess of$50,000.00 are nonetheless includablein the employee's income. However, ifa member of the insured's family towhom the policy has been assignedpays for the excess coverage, those

from income. Amounts in excess of theprorated amount are taxable interest.However, under Section 101 (d)(1 )(B),a surviving spouse is entitled toexclude up to $1,000.00 of such interest each year in addition to the prorated principal. This special break isavailable only for the interest elementin installment or life income payments,not an interest only option; there mustbe a substantial diminution in principalover the period for which the interest ispaid. Otherwise, even the $1,000.00surviving spouse annual exclusion isunavailable.

Policy PremiumThe payment of premiums on a life

insurance policy, whether by the ownerof the policy or others, is not a transaction which can be deducted from anindividual's taxable income. There are,however, certain tax considerationswhen these payments are made withbusiness related purposes in mind. Ifan employer simply pays premiums oninsurance owned by an employee or bya person or entity designated by theemployee, the payments would constitute income taxable to the employeeand would, if reasonable, be deductibleby the employer under I.R.C. Section162 as compensation. More often,however, an employer, generally acorporation, will pay premiums on apolicy covering the life of an employeein connection with key man coverage, agroup term policy or a split dollar arrangement.

Key man insurance is designed tocompensate a business for the loss to itof the services of a valuable employeecaused by his death. The employer isnormally the owner and beneficiary ofthe policy. Under I.R.C. Section264(a)(1), the premium payments arenot deductible, since the employer is"directly or indirectly a beneficiary"under the policy. No deduction wouldbe available if the proceeds are to beused in payment for stock that is to besurrendered to the corporation, sincethe amounts would be capital expenditures for the purchase of a corporateasset and not an ordinary and necessary business expense.' Where a keyman policy is owned by and payable tothe corporation, premiums paid by thecorporation are not taxable to the insured employee. I.R.C. Section264(a)(1) requires the same nondeductibility and nonincludability forpremiums paid by a partnership for insurance on the life of a partner or byone partner on the life of another.

Employee group term insurance of-July 1981/Arkansas Lawyer/115

employee could then pay his share ofpremiums.

ConclusionOther aspects of a life insurance con

tract can be of concern to the attorneyin income and estate tax planning.Some of these areas include dividendsand cash value increases, transfers forvalue, and loans against the cash valueof the policy and its related interest.While the scope of this article wasnecessarily too narrow to cover theseareas, the practitioner should have afamiliarity with these aspects of the lifeinsurance contract and their relationship to the tax code.

Footnotes:'See Atlantic Oil. 331 F.2d 516, 64-1 U.S.T.C.

paragraph 9425. 13 A.F.T.R. 2d 1267 (CA-5,1964).

'Rev. Ru!. 71·79. 1971-1 CB 112: Rev. Ru!.61-134.1961-2 CB 250

'See Rev. Ru!. 59-184, 1959-1 CB 65.'64 T.C. 1020 (1975).'See Rev. Ru!. 70-117,1970-1 CB 30.'See Rev. Ru!. 73-174, 1973-1 CB 43. and

Rev. Ru!. 71-587, 1971·2 CB 89.'1964·2 CB 11, amplified by Rev. Au!. 66-110,

1966-1 CB 12.·Supra. f...-.

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"CHrISTIanLawyers

State Chairman; Jay Dickey, Jr., P.O. Box 6038, 208 EastFifth Street, Pine Bluff, Arkansas 71601. 5011534-6302

policies and these rates are lower thanthe P.S. 58 rates, under Rev. Rul. 66110,' the lower rates may be used.Under this ruling, policy dividends constitute an additional economic benefitto the employee, taxable to him in theiractual dollar amount, if they are eitherreceived in cash, used to purchase oneyear term insurance, or applied topurchase paid-up additions in whichthe employee has a nonforfeitable interest. If the employee assigns his interest in the policy to a third party suchas an irrevocable life insurance trust,the employee, and not the assignee, isnonetheless taxed under the P.S. 58table.

Under Rev. Rul. 64-328, the corporation's share of the annual premium isnot deductible because the employer isa beneficiary under the policy within themeaning of I.R.C. Section 264(a)(1).Further, it is generally thought that theemployer also may not deduct the P.S.58 value of the benefit which is taxableto the employee, even though it is arguable that it constitutes compensationand a deduction should be available.Thus, it might be preferrable to pay theemployee a bonus (which is deductibleas compensation). with which the

· . .Life Insurance. ..,continued from page 115

tinuation of coverage under a groupterm policy is rare, the Table 1 cost forages 65 and over stays the same as forages 60 to 64. Further, under I.R.C.Section 79(b)(1), the payment of anyamount of premium (not just on the first$50,000.00 of coverage) is exemptfrom tax after an employee has terminated his employment and hasreached retirement or is disabled.

A split dollar arrangement may be animportant alternative to group term lifeinsurance, where the desired benefitlevel substantially exceeds $50,000.00and coverage under the group termplan expires at age 65 or where it isdesired to limit coverage more narrowly than allowed by Section 79. Conversion of a group policy to an individual policy is often too expensive forthe retiree.

Simply stated, split dollar insuranceis an arrangement whereby one partywho can afford to pay the premiums(usually an employer) pays part of theannual premium on insurance. The insurance is on the life of an individualwho cannot afford the full premium (theemployee), but who can pay the balance of the premium. The employerowns, or has a security interest in, thepolicy to the extent of its contributionand the insured or his assignee ownsthe "at risk" portion. The arrangementprovides that at the employee's death,the funds advanced by the employerare repaid to it and the balance is paidto the employee's beneficiaries. Generally, such plans are set up in one oftwo different ways: "Endorsement," or"collateral assignment." Under the endorsement method,the employer ownsthe policy and the benefits split isachieved by policy endorsement. In acollateral assignment, the employeeowns the policy and the employer's interest is secured by a collateral assignment of the policy.

The income tax effects of both approaches are the same and are setforth in Rev. Rul. 64-328,' which provides that the employee is taxed on theeconomic benefit he derives from hisemployer's participation in the split dollar arrangement. This benefit is thepure insurance protection under thebasic policy, calculated by the P.S. 58rates. The employee is thus taxed onthe P.S. 58 cost of the pure insuranceprotection, reduced by the amount, ifany, which he pays toward the premium in any year. If the insurer issuespublic rates for individual one year term116/Arkansas Lawyer/July 1981

'"

CODE Of

PROfESSIONAL RESPONSIBILITY

-csDON'T

LEAVE HOMEWITHOUT THEM

'c:-<

'"'".::: (This series is re-printed, with permission,~ from the booklet of the same title, publishedill by the Pennsylvania Bar Association.)~

'"j~

"

SOMEONE'S WAITING TOHEAR FROM YOU.

While most legal matters seem routineto you, your clients are probably inexperienced and apprehensive about theircases. A conscientious attorney should keepin regular contact with his clients, informingthem of the status of their affairs.

"A lawyer shall not neglect a legalmatter entrusted to him."

Disciplinary Rule 6·101(A)3, Canon 6.Code of Professional Responsibility

COMMUNICATIONOne of the most common complaints brought by

clients against attorneys is that of a lack of communication. Often a lawyer will become encumbered with other business and will forget that eachclient is anxious to hear how his case is progressing. Everyone wants some attention paid tothem, especially if they are paying for it. Whileconstant communication may not be feasible, anattorney should make periodic reports to hisclients. This is a courtesy that is much appreciatedby the client.

Although there is no specific Disciplinary Ruleon this subject, DR 6-101 (Aj (3) does provide that"a lawyer shall not neglect a matter entrusted tohim." Effective attorney/client communication willhelp to prevent such neglect.

MEDIA IN THE COURTROOM:

ITS IMPACT ON

THE GOALS OF JUVENILE JUSTICE

by Mary Ellen Vandergrift

Picture 14-year old Johnny arraigned before the juvenile judge forsupposedly having shot and killed afellow student. Millions of Americans,horrified by the circumstances of thisoutrage, are pasted before their television sets to see what will become ofJohnny. It is this week's prime-time Friday night courtroom drama.

An impossible futuristic myth?Maybe not. For television is definitelymoving into the American courtroom.'Despite the known risk of prejudice, thecertainty of endless litigation and a voteby the American Bar Association to uphold its advisory ban on cameras in thecourtroom,' the Supreme Court hasfound a First Amendment right of theelectronic media to attend criminaltrials.'

In Richmond Newspaper's, Inc.,the Court held unconstitutional a trial tothe public and press and found an implicit First Amendment right of thepress to attend criminal trials. TheCourt, per Burger, J., reasons first thatthe history of Anglo-American justicepresumes open trials, second that public trials provide a catharsis for thecommunity in that "lhe open processesof justice serve an important prophylactic purpose providing an outlet forcommunity concern, hostility, and emotion",' and third that people will acquireunderstanding of the justice systemthrough the print and electronic mediawhich "validates the media claim offunctioning as surrogates for the public. "5 The Court further described theright of access to criminal trials as apublic right "to hear, see and communicate observations concerning[trials].'" In short, television has madeits claim on behalf of the public's right toknow and has won.' We have enteredthe age of the electronic courtroom.118/Arkansas Lawyer/July 1981

Granted a "juvenile court proceedinghas not yet been held to be a criminalprosecution,'" Yet this year the UnitedStates Supreme Court denied certiorari for a petition seeking review of aNew York Court of Appeals decisionupholding closure of a pre-trial suppression hearing in the murder prosecution of a 13-year-old defendant.' Hadthe Court reviewed the controversy, '0 itwould then have had to wrestle with theissue of whether the press has aconstitutional protected right of access tojuvenile proceedings.

What, then, would be the impact ofthe media in the courtroom on thejuvenile justice system?

No one, of course, can know for sure.Television has had an enormous impact on American institutions, reshaping politics, changing the nature ofsports and business, and transformingfamily life," but no one has yet investigated the far-reaching social ad institutional consequences of plugging theadministration of justice into a systemoriented to profit and entertainment."

One thing, however, is certain. Confidentiality of proceeding for thejuvenile defendant would be annihilated.

I. ConfidentialityConfidentiality of juvenile proceed

ings has been fundamental to the goalsof juvenile justice from 1899, when anIllinois legislature created a juvenilecourt system distinct from the adult adversary system." Soon provided for inall jurisdictions, these separatejuvenile courts embraced the philosophy that the child has a right to treat-

Mary Ellen Vandergrith is alaw student at the University ofArkansas at LiN/e Rock whereshe is the recipient of theWright, Lindsey and Jenningsscholarship. She is chairman ofthe Honor Council and amember of Phi Delta Phi LegalFraternity. She holds a B.A. Degree from Duke University andthe M.A. from the University ofArkansas, Fayetteville, whereshe also taught as a graduateassistant. She has taught English in Aix-en-Provence, France; at Southwestern at Memphis, and at the University ofMississippi. At the latter, herteaching included a writingcourse for law students.

Mrs. Vandergrift is librarianfor the Garland County LawLibraray in Hot Springs. She isdivorced and the mother of twochildren. Because her youngerdaughter has a severe impairment, Mrs. Vandergrift is proficient in sign language and isinterested in the legal problems of the deaf.

ment and can be rehabilitated and thatthe State has a compelling interest inpromoting that rehabilitation. ,.Juvenile court hearings emerged asclosed proceedings dominated by social workers and a judge with wide discretionary powers. All records were tobe kept strictly confidential to pave theway for rehabilitation since the childbranded as a criminal by his peers andby those in charge of guiding him couldscarcely be expected to overcome thatlabel. Unfortunately, abuses proliferated. Children were denied fundamen-

tal rights of due process; records werenot kept strictly confidential; and therehabilitative process envisioned wasnot a success. l

$

But to jettison entirely the philosophical goal of treatment on favor of theadult adversary system would be to ignore the fact that children after all arenot yet grown up. Much work, then,focused on establishing goals for aprocess which would accord childrenmore rights while maintaining thephilosophy of rehabilitation.

Two major works, the Task ForceReport" and the IJA/ABA Standards"encompass this effort, and both deemconfidentiality essential to the goals ofjuvenile justice. The Task Force Reportsimply assumes that the system cannot work unless confidentiality is maintained and, without further ado, dismisses the matter in two pages with thestatement that "all States should enactlegislation to make identitying information about juvenile law violators inaccessible to the news media.""

In contrast, the IJA/ABA Standardsdevote one whole volume to the concern for confidentiality of juvenile records so that privacy interests ofjuveniles will be safeguarded." TheIJA/ABA Standards maintain thatjuvenile privacy committees should beestablished (Standard 2.1) for the purpose of institutionalizing "a specialconcern for juveniles and their right ofprivacy and to make information andprivacy issues more visible."20 And although the IJA/ABA Standards statethat the respondent in a juvenile proceeding should have a right to a public

(EDITOR'S NOTE: This is the winningpaper by a law student at the UALRSchool of Law in the 1980 competitionsponsored by the Arkansas Bar Foundation. Professors Norman H. Steinand Steve H. Goldberg, in evaluatingthe article, found that it is well-writtenand contains a good discussion of therelevent issues involved in the subject.The Executive Committee of the Arkansas Bar Foundation made the finaldecision.

It is interesting that the ArkansasSupreme Court, in its Per Curiam No.79·307 issued on December 8, 1980after Ms. Vandergrift had written herpaper, has permitted so-called"cameras in the courtroom" in

trial if he so desires," the Standardsfurther recommend that legislatureenact statutes making it a misdemeanor for persons to disclose information in a juvenile record and a tort "toimproperly collect, retain or disseminate information pertaining tojuveniles."22

Both works view the confidentiality ofjuvenile proceedings as imperative.Further buttressing these recommendations are modern studies of child behavior which indicate that giving a childattention for aberrant behavior willhave the effect of positively reinforcingthat behavior, resulting in a repetitionon the anti-social act," Focus a T.V.camera on Johnny, provide him withthe ego satisfaction of basking in thespotlights, and, bingo, off he will go torepeat whatever offense he committed.Even should he be incarcerated, withhopefUlly no chance of repetition, thissort of public labeling can only havesevere negative repercussions on thechild's self-image" seriously impairinghis attempt to create a positive selfimage, the very injury that Warren andBrandeis, in the famous 1890 essay,The Right to Privacy, were concernedabout."

II. First AmendmentRight of the Press

As imperative as confidentiality maybe in accomplishing the State's goal ofrehabilitating the juvenile, it may wellbe a moot issue when juxtaposed to theFirst Amendment right of the press. InCox Broadcasting Corp. v. Corp,"where a Georgia statute making it a

Arkansas-with the notable exceptionof the "juvenile court for obviousreasons".

It is also noteworthy that the 1981Arkansas Legislature passed anumber of bills pertaining to juvenilejustice, which were signed into law byGovernor White. These laws are basedon the work of the appointed by theGovernor, Legislative Council, President of the Senate, Speaker of theHouse, and the Foundation's Chairman. The Task Force had received anLEAA grant for the juvenile justicestudy and law revision project.

Finally, the 1981 Arkansas Legislature passed a proposed amendment tothe Arkansas Constitution that would

misdemeanor to publish a rape victim'sname was under consideration, the United States Supreme Court held thatinformation becomes privileged whenon public record and may be publishedwithout liability for invasion of privacy.

Then, in Smith v. Daily Mail," acase involving a real-life Johnny whoshot and killed a student, newspaperreports obtained the name of thejuvenile by routine reporting techniques, i.e., listening to the police radioband, and publishing the name in violation of a State statute. The UnitedStates Supreme Court held the statuteinvalid on constitutional grounds,reasoning that the newspaper's FirstAmendment right prevailed over theState interest in protecting the juvenile.Only Rehnquist, in a concurring opinion, considered the State's interest inthe goals of juvenile justice or the potential harmful impact of publicity."

Add to these two cases theRichmond Newspaper's, Inc." case,where a First Amendment right of thepress to attend a criminal trial wasguaranteed, and a very recent case,Pennsylvania v. Hayes," where theUnited States Supreme Court upheld aPennsylvania Supreme Court rulingthat a trial judge erred in excluding thepress from a pre-trial suppression hearing involving an elected state officialcharged with sexually assaulting andsupplying drugs to a male 17-year-old,and a trend emerges. Media rights areexpanding. The media now has a FirstAmendment right to publish the namesof juveniles brought before juvenilecourt. Additionally the media now apparantly has a First Amendment right of


transfer juvenile court jurisdiction fromthe county judge to the Arkansas courtsystem. The amendment will be votedupon by Arkansas voters in duecourse.

Obviously, juvenile justice is of greatconcern to Arkansas legislators andthe organized bar. It is to the credit of allthat have contributed to these new developments. Perhaps, Ms. Vandergrift's obvious concerns may be "put torest"-the Arkansas Supreme Court,the Arkansas Legislators and Governor, and the organized bar are workingin concert on the juvenile justice standards.)


Media. ..,continued from page 119

access to suppression hearings, a rightpreviously denied in Gannett v. Pasquale" where the Court held that access to transcripts of such hearingswould sufficiently uphold constitutionalfree press guarantees."

The interesting point about thePennsylvania Supreme Court decisionin Pennsylvania v. Hayes" is that twojustices would hold, as an absoluterule, that all criminal proceedingsshould be open to the public and press.Very little balancing, either of the defendant's rights or of the State interestin the orderly administration of justice,occurs.

The same myoptic reasoning dominates an Oregon Supreme Court decision directly confronting the issue ofthe media in the juvenile courtroom. InOregonian Publishing v. Deiz,"where a 13-year-old girl was in custodyfor the drowning of a younger child, theOregon Supreme Court held a lowercourt order barring a newspaper fromjuvenile court invalid as contrary to theOregon Constitution. The Court enumerates reasons for maintaining confidentiality of juvenile proceedings, butsummarily dismisses them in favor ofconstruing the constitutional provisionfor open courts to mean a right of access for the public and press. Thus, inOregon the constitutional right of themedia supercedes the need for confidentiality in rehabilitating the juvenile.And the goals of the juvenile justicesystem are effectively effaced.

III. ConclusionThe First Amendment right of the

press is powerful indeed. No one wouldpresume to question the fact that a freesociety is dependent upon freedom ofspeech and especially freedom of thepress. No one would presume to question the landable efforts of the press "toshine light into the dark recesses ofgovernmental decision-making."" Butwith every freedom there is a concomitant responsibility and obligation." And I am concerned about theJohnnys of today and tomorrow whomay have their day in Court but whomay not have the opportunity to be letalone long enough to grow into responsible citizens. Iam concerned that even120/Arkansas Lawyer/July 1981

if the media may not go so far as topander to the morbid, the prurient, andthe sensation seeking, trials may yet bepicked and edited and televised to fitthe dramatic ritual." I am concernedthat the press may be as interested ineconomic gain as it is in the "prophylactic aspects of the administration of justice,"" and I would leave to the judicialprocess its effort to adjudicate the lawand to the mass media its eternal romance with popular entertainment andnews reportage, with the hope thatnever the two would meet.

As far as the impact of the media inthe courtroom on the juvenile justicesystem, it seems obvious that onceconfidentiality is gone, the goals ofjuvenile justice are gutted. It must beremembered, too, that whereas thevoice of the press is loud and powerful,the voice of the juvenile is weak andsmall. There is a need to carefully balance the First Amendment right of thepress against the State interest in theprotection and rehabilitation ofjuveniles. The issues should not beframed as competing, unalterable principles, extolling the superiority of oneright over another. Rather, the issuesshould be approached with flexibilityand objectivity, towards the end ofharmonizing and balancing the fundamental goals of juvenile justice with theFirst Amendment right of freedom ofthe press.

Mary Ellen Vandergrift

FOOTNOTES

'Gerbner, Trial by Television: AreWe at the Point of No Return?, 63Judicature 416 (1980).

'Id. at 417.

'Richmond Newspaper's, Inc. v.Virginia, __U.S.__, 65 L.Ed.973 (1980).

'Id. at 985-86

'Id. at 987.

'Id. at 989.

'Gerbner, supra, note 1.

'McKeiver v. Pennsylvania, 403U.S. 528, 658 (1971).

'Merola v. Bell, 393, N.E.2d 1038(N.Y. 1979) cert. denied,

__U.S.__(1980).

'OThree justices, Brennan, J., Marshall, J., ahd Blackman, J. noted theywould have granted review.

"Gerbner, supra, note 1, quotingComstock, The Impact of Televisionon American Institutions, 28 J. ofCom. 12 (1978).

"Gerbner, supra, note 1.

"Schultz, The Cycle of JuvenileCourt History, 19 Crime and Delinquency 457 (1973).

"Kondak, Juvenile Justice: a Bibliographic Essay, 72 Law Library J. 21(1979).

"Fox, Juvenile Justice Reform:An Historical Perspective, 22 Stanford L.Rev. 1187 (1970).

"National Advisory Cornmittee onCriminal Justice Standards and Goals,Juvenile Justice and Delinquency Prevention, Report of the Task Force onJuvenile Justice and Delinquency Prevention (1976) [hereinafter cited asTask Force Report).

"Institute of Judicial Administrationand American Bar Association,Juvenile Justice Standards Project(1977) [hereinafter cited as IJA/ABAStandards).

"Task Force Report, supra, note 16at 223-24.

"IJA/ABA Standards, supra, note17. Juvenile Records and InformationSystems.

,oIJA/ABA Standards, supra, note17. Juvenile Records and InformationSystems at 45.

"IJA/ABA Standards, supra, note17. Adjudication 6.1 quoted byMcLaughlin and Whisenand, JuryTrials, Public Trial and Free Press inJuvenile Proceedings, 46 BrooklynL.Rev. 1 (1979).

"IJA/ABA Standards, supra, note17. Juvenile Records and InformationSystem at 48.

"Blackwell and Budde, the JUdevineDevelopmental System, Parent Training Program II, Module 14 BehaviorManagement Principles (1973) at 10,12, 14.

"IJA/ABA Standards, supra, note17, citing E. Schur, Labeling Deviant

Behavior (1971), 'Juvenile Records andInformation Systems at 71.

"Dionisopoulas and Ducat, TheRight to Privacy (1976) at 20, discussing Warren and Brandeis The Rightto Privacy, 4 Harvard L.Rev. 193(1890).

"420 U.S. 469 (1975).

"443 U.S. 97 (1979).

"Id. at 407.

20__U.S.__, 65 L.Ed., 973(1980).

'°414 A.2d 318 (Penn.).aff'd.,__U.S. (1980).

"443 U.S. 368 (1979).

"Id. at 393.

"414 A.2d 318 (Penn.), afl'd.,______U.S.__(1980).

"613 P.2d 23 (Or. 1980).

"Bird, The Role of the Press in aFirst Amendment Society, 20 SantaClara L.Rev. 11 (1980).

"Weisberger, The Supreme Courtand the Press, 19 Judges Journal 14(1980).

"Gerbner, supra, note 1. Virginia,__U.S.__, 65 L.Ed.973, 985-86 (1980). •

"Richmond Newspaper's Inc. v. r....

Dean Robert K. Walsh, UALR School of Law, presenting the Arkansas BarFoundation Award to Ms. Vandergrift, with Professor Steve H. Goldberglooking on.

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JUly 1981/Arkansas Lawyer/121

LAW SCHOOL NEWS

Dean David G. EpsteinAssistant Dean Ellen Brantley

SCHOOL OF LAW, UNIVERSITY OF ARKANSAS, FAYETTEVILLE

FACULTV ACTIVITIES

The faculty takes its obligations of pUblication and publicservice seriously. One acknowledged measure of the accomplishments of a law faculty is authorship or co-authorship of texts and treatises. At the University of ArkansasSchool of Law, we have seven faculty members who havepublished such works. And, Wylie Davis, Mort Gitelman,Neil Hamilton, Steve Nickles, Dick Richards, and I are nowworking on books under contracts with publishers.

Faculty public service activities include Howard Brill working on the Ethics and Grievance Committee of the ArkansasBar Association, Wylie Davis chairing the Committee onContracts for the Multistate Bar Examination; Jake Looneyserving as Secretary-Treasurer of the American AgriculturalLaw Association; Phil Norvell contributing to the Oil and GasReporter as a memberof its Board of Editors; Tom Robinsonpresenting programs on tax law for accountants and attorneys in Fort Smith, Tulsa, Springfield, and Minneapolis;George Skinner traveling to University, Mississippi to offersuggestions on improving the University of MississippiSchool of Law Library.

While the faculty takes its work seriously, it does not, asthe following photograph illustrates, take itself too seriously.Notwithstanding Milt Copeland's willingness to "take thecharge," Tom Robinson's willingness "to battle the boards"and my willingness to "throw up bricks," the Dean's Machinefinished the intramural basketball season 0-5.


CLIENT COUNSELING COMPETITION

Happily, the student client counseling team was muchmore successful than the faculty basketball team. On March7, the University of Arkansas School of Law's client counseling team competed in Lawrence, Kansas, against nineschools from the Midwest and West.

The morning interview concerned a stewardess who hadbeen suspended from her job while pregnant, and later fired.These actions were allegedly prompted by economicnecessity. Our team won the morning round, defeatingWashburn University and the University of New Mexico.Washburn won the regional competition last year, and NewMexico its regional two years ago, so the team took specialpride in its performance against schools with establishedclient counseling programs.

For the finals, the field of ten was narrowed to the threemorning winners: Arkansas, Denver and Wyoming. The afternoon problem involved a corporate president who wishedto promote a young, female Harvard MBA over the heads ofseveral corporate competitiors. He wanted the student attorneys (who were members of a law firm which derived fiftypercent of its billings from the corporation) to advise himwhat impact affirmative action policies had on his plans, andwhether he could bypass ordinary corporate channels inpromoting the young woman. He also wanted the problemkept away from other corporate officers and the board ofdirectors.

Our team performed very well in this interview, treating theconflict of interest problem as of paramount concern. Thejudges were complimentary of our team's effort in the afternoon, but felt that Wyoming (previously a national champion

David Nix, Steve Taylor, Dave Thomas, and RichardWatts were selected to represent the law school. A largenumber of students attended the final arguments andthe beer party at my house after the arguments.

in the competition) had performed marginally better than wehad. Wyoming was therefore awarded first place, with Arkansas and Denver in effect tying for second.

Our success in this competition reflects the hard work ofteam members Sharon Flippin and Kirby Lockhart, teamaltemate Murray Tabb, and faculty advisers Bill Bost andDave VanderZwaag.

MOOT COURT COMPETITION

Each spring, the University of Arkansas School of Lawholds an intra-school moot court competition, with the winners of the competition representing the law school in theAmerican Bar Association National Appellate AdvocacyCompetition. This year ten teams entered the competition.Teams argued at least twice. The arguments were heardand evaluated by jUdges and practicing attorneys.

The final arguments were judged by JUdge Robert Dudleyof the Arkansas Supreme Court, Judge J. Dickson Phillips ofthe United States Court of Appeals for the Fourth Circuit,and Professor Robert Knowlton.

CONTINUING LEGAL EDUCATION

The Law School is co-sponsoring a program with theArkansas College Personnel Association on legal problemsin higher education in Fayettevile on April 23rd and 24th. OnMay 1st and 2nd, the Law School is co-sponsoring a nationalprogram on agricultural law problems in Kansas City. OnSaturday, July 25th, the Law School will offer a one-day"workshop" on bankruptcy law for attorneys with somebankruptcy law experience in Little Rock. For more information about any of these programs, please write or call (501575-5601) me at the Law School.

SCHOOL OF LAW,UNIVERSITY OF ARKANSAS AT LITTLE ROCKFACULTV NEWS

Dean Robert K. Walsh served as a judge in the finals ofthe Regional Moot Court Competition for the Law StudentDivision of the American Bar Association. The competitionwas held in Fayetteville on March 28. On Wednesday,March 18 he addressed the Crittenden County Bar Association.

Visiting Professor of Law Morris S. (Buzz) Arnold delivered a lecture, "Is Jury Trial Obsolescent?" as part of alecture series, "The Here and Now: 1981" sponsored byUALR's distinguished professors. His lecture, delivered onApril 22, was the last of the six in the series which wascohosted by the First National Bank. Professor Arnold wasintroduced by Dohaghey Distinguished Professor Robert R.Wright III, one of the sponsors of the series.

An article by Professor Wright entitled "Zoning Law inArkansas" has been published in the Fall 1980 edition of theUALR Law Journal. Another of his articles has recentlybeen published in the Hastings Constitutional Law Quarterly. The article deals with constitutional issues in zoning.Professor Wright served as moderator of a panel on landuse controls and the environment at Henderson State University and addressed the Arkansas Bar Association AnnualMineral Law Institute held in Hot Springs in February.

Also appearing in the current issues of the Law Journal isan article by Assistant Dean Ellen Brantley and ProfessorRichard W. Effland, "Inheritance, the Share of the SurvivingSpouse," and "Wills: Arkansas Law and the Uniform Probate Code Compared." Professor Effland is on the faculty ofthe College of Law at Arizona State University and served asVisiting Professor of Law at UALR in the summers of 1979and 1980. An article by Professor Steven Goldberg, "Harmless Error: Constitutional Sneak Thief" appeared recently inNorthwestern University's Journal of Criminal Law and

Criminology. Professor Goldberg will be teaching at theKentucky Advocacy College from June 1 to 10.

Professor Glenn Pasvogel appeared on AETN as apanelist discussing a film, "A Place Called Rohwer," whichdealt with Japanese internment in Arkansas during WorldWar II. ProfessorO. Fred Harris, Jr. served as moderator ofa discussion on "Current Developments in Equal Opportunity Law," at the Fourth Annual Labor Law Institute at DeGrayLodge on April 2, 1981. Professors Kenneth Gould andNorman Stein attended a conference in Washington on newregulations under Title IX of the Higher Education Act whichfunds clinical legal education. Professors Gould and Steinand Paula Casey, Adjunct Clinical Supervisor, served asdrafters for the Bar's Task Force on Revisions to theJuvenile Code. The proposed revisions were enacted by theGeneral Assembly and signed by the Governor.

ALTHEIMERDISTINGUISHED PROFESSOR ESTABLISHED

The Board of Trustees of the University system has approved the creation of a Ben J. Altheimer DistinguishedProfessorship at the UALR Law School. The Ben J. Altheimer Foundation trustees voted recently to offer $5,000 ayear to the Law School to support the professorship.

The support for the Ben J. Altheimer Distinguished Professorship is the third Law School project supported by theFoundation. It also provided funds to complete restoration ofthe courtroom in the Old Federal Building, and since 1978has supported the Ben J. Altheimer Lecture Series, in whichlegal scholars of national reputation have visited the LawSchool to present lectures. Ben Altheimer was a Pine Bluffnative who practiced law in Chicago for several years andowned farming interests in Arkansas.



DEAN WALSH TO JOIN FRIDAY FIRM

March 31, 1981

rear Phil:

graduated from the Harvard LawSchool, where he edited the HarvardJournal on Legislation. He was affiliated with a Los Angeles law firm prior tojoining the Villanova Law School faculty, where his teaching areas werefederal courts, administrative law, conflict of laws and constitutional law.

Walsh said, "I do look forward to returning to practice with a fine group oflawyers, and my family and I are extremely happy that we can permanently remain in Arkansas...........

Robert K. WalshDean

With best regards,

Again, thanks.

RKW/km

AS you know, I am leaving my position as ~ean of the Universityof Arkansas at Little Rock School of Law on June ]0 after a fiveyear tenure. These past five years have been both productive andenjoyable. The law school is strong with an outstanding faculty anda bright future. It has developed to this position because of t~e

outstanding support of legal education by the practicing lawyers o~

Irkansas. I want to thank you, the other bar leaders with whom Ihave worked during my term as dean, and the many members of thelrkansas Bar Association who have contributed to the development ofthe school.

P.onorable Phillip CarrollPresidentArkansas Bar Association(CO West MarkhamLittle Rock, AR 72201

Dr. James Fribourgh, vice chancellorfor academic affairs, said "It has been apleasure, both personally and professionally, to work with Dean Walsh. Hisleadership in the university and in thelegal community is deeply appreciatedby all of us."

Walsh, 38, came to UALR from Villanova Law School in Pennsylvania.He is a native of Nebraska, graduatedfirst in his class at Murphy High Schoolin Los Angeles, earned a bachelor'sdegree summa cum laude from Providence College in Rhode Island, and

As dean, I have found ~y associations with the lawyers of ~rYansas

extremely rewarding. I believe that the state is blessed with anoutstanding bar. I am proud that in returning to the practice o~ law,I will be a practicing member of the bar of this state. Kathie and Iare extremely pleased that we will be remaining in Arkansas with ourmany good friends in the bar association.

~~ UNIVERSITY OF ARKANSAS AT LITTLE ROCK~ SCHOO!.. O~ LAW

- 4tXI WEST MARI04AM • UTTl.E IIlOCK, -......-s 722111 • !1011'l7'..z2lIO

Dean Robert K. Walsh of the University of Arkansas at Little Rock School ofLaw will leave his university positionJune 30 to become a member of theFriday, Eldredge and Clark law firm inLittle Rock.

Walsh has served as dean sinceJune 15, 1976, the first to hold the postafter the school was established as anindependent unit separate from theUniversity of Arkansas at FayettevilleSchool of Law. Prior to mid-1975 theschool was a division of the Fayettevilleschool, offering night classes.

"I will always be extremely proud ofwhat has been accomplished in thepast five years with the great support ofour faculty, students, staff, universityofficials, and members of the legalcommunity," Walsh commented. "It isa strong law school with an outstandingfaculty. Its future is bright," he added.

When Walsh became dean, dayclasses had been initiated only a shorttime earlier and the school had only273 students, seven full-time facultymembers and four part-time facultymembers. There are now approximately 400 students, 25 full-time facultymembers and 10 part-time facultymembers.

Under Walsh's leadership the UALRSchool of Law earned American BarAssociation accreditattion for the dayprogram in 1977, renovated the OldFederal Building at Second and CenterStreets in 1978 for school use, and in1979 won membership in the AmericanAssociation of Law Schools.

The UALR School of Law participated with the Arkansas Bar Associationand the Fayetteville law school in establishing the Arkansas Institute forContinuing Legal Education, andjoined with the UALR College of Business Administration degree program.

UALR Chancellor G. Robert Rosscommented on Walsh, "From both mypersonal experience with Bob Walshand reports I receive nationally as wellas from the Arkansas bar and the faculty, he is one of the outstandingyoung deans in the United States. Thisdefinitely causes us concern, to losehim. He has a bright future in whateverhe chooses to do, and we wish himwell. We are confident we can count onhim for support and involvement inlegal education in Arkansas."

124{Arkansas Lawyer/July 1981

TO WITBy S. Sponte, Esq.

"S. Sponte is the nom de plume of a lawyer who practices and is generallybewildered in Westmoreland County, Pennsylvania."

VILLAGE OF THE DARNEDNot long ago, I was encamped in the

local Courthouse, hour beyond hour, inwait of a verdict. With much else to do,but little stomach for any of it, I left myclient defend for himself and wanderedoff alone down a dusty basement hallway and into an unlocked side room.There I found old boxes upon oldboxes, full of documents long abandoned, no doubt awaiting some precipitious and fUlly unwarranted heave-ho.Though not born a lawyer, I am by nowbred one, and like others of my bred, Ihave a healthy regard for messagesfrom the past. Accordingly, I rootedthere awhile, and in the midst of olddeeds adustin' and old writs erodin', Ifound a most curious and seeminglymisplaced thing. A poem of sorts, It hadapparently been written by a brother ofanother time, a fellow long since gone,and as best I could make it out, it wasthis:

Listen my colleagues, and you shallhear,

Of the small town lawyer's greatestfear.

Though a colleague long hated atlast be dead,

Not an unkind word must escapeyour head.

For it shall come to pass, as sure asmorn,

And you'll rue the day you were everborn,

If you stand for judgment on thatheavenly shore,

With his yea or nay to pass before."Of me, thou didst not speak too

well."Anon, thou finds thyself in Hell.And though thou roasts and beefs

about,Alas, alas, there's no way out.A sad end to a lawyer's story,Confined for time ad purgatore.

A. V. Malcanew

Unlike lesser lights, this authorsigned his work, and some time later, Ifound his picture in an old group Bardaguerreotype. He looked, for his time,just the lawyer's part, slicked hair andwalrused moustache, high starchedcollar and lips oh so tightly pursed.

There is much truth contained inMalcanew's little gem, as any smalltown lawyer with intellect, sensitivity,insight and wisdom can readily attest. Ipicked up on it right away. All lawyers,regardless of their demographicpersuasion, by and large treat their colleages with dignity, courtesy, and respect, despite the cool rage of anadversary proceeding. It is conduct expected of well-educated professionals,codified by the Canons of Ethics, andabsolutely mandated by the laws oflibel and slander.

In addition to those abstract intellectual restraints, however, the villagelawyer is further governed by a muchmore meaningful and practical consideration: fear. As Malcanew well knew,there is precious little place in a smalltown to hide from an estranged colleague who is bound and determined tosettle old hash.

At the local Bar, legend still lingers ofthe two lawyers long ago who wagedunrelenting war with each other to settle a personal vendetta so old, no onecould recall its origin. Whenever theydealt with one another, the clients'cause became less important thantheir own. In one final ill-considered effort to gain the ultimate, though thoroughly unconscionable upper hand,one of them ran for judge and waselected. His foe, recognizing defeat,simply stopped handling litigationcases, taking solace instead from thealternate professional life style of mak-

ing money and enjoying long life. Thejudge, now with no one upon which tovent his hash-laden spleen, becameunduly venomous, and soon took tospitting upon himself, a condition whichhis colleagues sadly mistook as thepremature onset of judicial temperament.

So it is that, though I often pray forfresh invectives and the wherewithal tofling them, I HAVE LEARNED TOLASH MY TONGUE IN TIMES OFSTRESS. At this stage of my career, asI am much against my will propellednearer my God to Thee, I might as wellstand fast before Malcanew and hisearthly refrains, the better by which toinsure my own ultimate reward. I maygo to my grave with unrequited spleen,but if in fact that state of final grace issparsely colleagued, that will beHeaven enough for me. '"

Copyright 1981, S. Sponte, Esq.

(Editor's Note: Law generally isa rather somber profession. True,once in awhile, there is a pleadingor decision couched in a humorous vein. However, we lawyersmust admit that there are few witsin the legal profession. So, it iswith the especial pleasure that weintroduce a new Regular Featurein The Arkansas Lawyer, appropriately entitled "To Wit" andauthored by S. Sponte, Esq. Alllawyers should be able to identifywith him.)


by Robert Fussell

UP-DATE:

How To Handle A Tort ClaimsCase In Federal Court

Section 2675, Title 28 USC providesthat:

ADMINISTRATIVE PROCESS

§ 2675. Disposition by federalagency as prerequisite;evidence

manded a jury trial. AUSA "Bear"Jackson then filed a motion to limit theplaintiff's claim to $1 0,000.00 as statedin the plaintiff's administrative claim.Then Judge Overstreet advised theplaintiff's attorney that the Federal TortClaims Act had no provision for trial byjury. To the attorney's amazement,Judge Overstreet set the case for trialwithin three months from the filing ofthe Complaint.

The case was tried. The Judge founddamages in the amount of $27,000.00but reluctantly reduced Judgement to$10,000.00, the amount of the administrative claim.

Attorney Izard under his contractwith the plaintiff, was entitled to33-1{3% of FUdge's recovery. ToIzard's dismay and distress, he learnedthat under the Act his fee was limited to25% of the recovery. Furthermore theUnited States Attorney advised him itwas a criminal misdemeanor to chargeover 25%. Later, his client, who hadgraduated from law school by then,filed a malpractice suit for $17,000.00against him because he failed to stateon the administrative claim sufficientdamages.

After Attorney Izard finished thecase, he thoughl... ..."Good Riddance"and to hell with the Federal Torts ClaimCourt.

The most common case under theTort Claims Act is a vehicle collision.On April 1, 1981, Johnnie Postmanwhile driving a government vehicle delivering mail, ran a stop light at the intersection of VanBuren and LeeStreets, Little Rock, Arkansas; and coilided with a vehicie being driven by BudFudge, a law student at the Universityof Arkansas at Little Rock.

Bud Fudge's lawyer, Climbing Izard,proceeded to file a civil suit in CircuitCourt against Johnnie Postman andthe United States Postal Service. Assistant United States Barrister "Bear"Jackson immediately removed thecase to Federal Court and moved toDismiss because Johnnie Postmanwas acting within the scope of hisemployment at the time of the accidentand the United States of Americashould be the proper party defendantnot the United States Postal Service.

Attorney Climbing Izard then proceeded to file a new case in FederalCourt naming the United States ofAmerica as the party defendant. AUSABarrister "Bear" Jackson, followingDepartment of Justice instructions,filed another motion to Dismiss because the plaintiff Bud Fudge failed toexhaust his administrative remedies.Federal Judge "Wild-Bill" Overstreetgranted the motion to Dismiss the dayafter it was filed.

The plaintiff then filed a claim for$10,000.00 with the United StatesPostal Service. The Postal Service saton the case for a year and a half; andthen denied the claim. Izard subsequently found out he could have filedthe suit six months after the date heoriginally filed the claim.

Attorney Izard then filed a suit in federal Court for $60,000.00 and de-

A COMMON CASEWITH COMMON PITFALLS

enough to make an unwary attorney:scream, get an ulcer and pray for forgiveness on Sunday.

(Editor's Note: We were fortunate topublish, in the first issue of The Arkansas Lawyer under our aegis, May1969, Robert Fussell's first article,"Handling Tort Claim Cases in FederalCourt". His"Up-Date" should be a partof every practicing lawyer's library.

Robert Fussell is a sole practitionerin Little Rock. He has been an attomeyfor NLRB, 1965-66; Assistant US Attorney, 1968-75; Chief Assistant US Attorney, 1973-75; and Lecturer on TrialAdvocacy, UALR School of Law. Hehas been appointed a Special Masterin the US District Court for the EasternDistrict of Arkansas.

To our knowledge, Robert Fusselldevotes more pro bono time to veterans and the deaf than any iawyer in theUnited States. For his work, he wasawarded in 1978the only Arkansas BarFoundation-Arkansas Bar Association Special Lawyer-HumanitarianAward ever given.)

INTRODUCTION

With the continuation of growth insize by the federal government and thecongressional trend to broaden thescope of liability of the United StatesGovernment, undoubtedly practice infederal courts will become even morelucrative in the future for attorneys.

The purpose of this article is to pointout some of the common pitfalls whichoccur in handling cases filed under theFederal Tort Claims Act (originallyenacted at Title IV of the LegislativeReorganization Act of 1946, 60 Sta.842), and to suggest some proceduresto be followed which will save you timeand hopefully result in a more successful determination of your client's claim.

Congressional confusion is best illustrated by the Federal Tort ClaimsAct which is scattered throughout Title28, U.S.C.A. The technical proceduresto be followed under the Act are126/Arkansas Lawyer/July 1981

(a) An action shall not be institutedupon a claim against the United Statesfor money damages for injury or loss ofproperty or personal injury or deathcaused by the negligent or wrongful actor omission of any employee of theGovernment while acting within thescope of his office or employment, unless the claimant shall have first presented the claim to the appropriateFederal agency and his claim shallhave been finally denied by the agencyin writing and sent by certified or registered mail. The failure of an agency tomake final disposition of a claim withinsix months after it is filed shall, at theoption of the claimant any time thereafter, be deemed a final denial of theclaim for purposes of this section. Theprovisions of this subsection shall notapply to such claims as may be asserted under the Federal Rules of CivilProcedure by third party complaint,cross-claim, or counterclaim.

(b) Action under this section shallnot be instituted for any sum in excessof the amount of the claim presented tothe federal agency, except where theincreased amount is based upon newlydiscovered evidence not reasonablydiscoverable at the time of presentingthe claim to the federal agency, or uponallegation and proof of interveningfacts, relating to the amount of theclaim.

The Eighth Circuit Court of Appealshas held that before a complaint mayproperly be filed in federal court on atort claim, the claimant must file a written claim with the offending agency.Davis v. U.S. (1971, 8th CiL) 439 F.2d1118.

If you are employed before the injured person files a claim, you shouldprepare the Claim' and include all conventional personal injury items and thetotal amount of damages you intend tosue the United States for recovery. Ifyour client has already filed a claim,you should go over it very carefUlly andif it is defective you should amend theclaim at once.

It has been my experience that thefederal agency wiil not have finishedthe investigation of the claim, muchless get anyone to take the responsibility to act on the claim within six months;so I wouid recommend immediately filing a complaint in United States DistrictCourt after the six months waitingperiod.

FORM OF THECOMPLAINT AND PROCESS

If the federal agency denies the administrative claim or after six monthshas elapsed from the date of the filingof the claim with the agency, then a suitshould be instituted either in the judicialdistrict where the plaintiff resides orwherein the act or omission complained of occurred. 28 U.s.C. 1402(b).

The following is a suggested form ofa complaint to be used in a Federal TortClaims Act case involving an automobile collision where the negligency of a governmental employee isan issue.

COMPLAINT

Comes the plaintiff, Bud Fudge, andfor his complaint against the defendant, United States of America, allegesand states:

1. This action arises under the Federal Tort Claims Act, 28 U.S.C.1346(b), 2671, et seq.

2. Plaintiff has exhausted his administrative remedies in accordancewith 28 U.S.C. 2675(a). Attached asExhibit "A" is a letter from the UnitedStates Post Office Department denyingadministrative relief.

3. The plaintiff, Bud FUdge, residesat 66 Honeybell Lane, Star City, Lincoin County, Arkansas, within thejurisdiction of this court.

4. At approximately 6:15 a.m. onJune 1, 1968, plaintiff while operating avehicle owned by him, stopped onState Highway No. 114 to make a lefthand turn on to a county road known asCounty Line Road, located approximately 2 miles west of Star City, Arkansas, when John Smith, while deliveringUnited States mail, negligently andwrongfully drove his car against therear of plaintiff's vehicle.

5. At such time and place, JohnSmith was an employee of the UnitedStates Post Office Department, anagency of the United States ofAmerica, and was acting within thescope of his employment

6. If the defendant were a privateperson, it would be liable to the plaintiffin accordance with the laws of Arkansas.

7. At the time of said accident, JohnSmith was guilty of negligence andcarelessness in the operation of his

vehicle in the following particulars, towit:

a. DriVing at an excessive rate ofspeed under the conditionsthen existing.

b. Failure to keep a proper lookout

c. Failure to keep his vehicleunder proper control.

d. Following too closely.

The aforementioned acts of negligenceare contrary to the laws of of the Stateof Arkansas.

8. As a result of said negligence andcarelessness, as set out above, plaintiff was seriously, painfully and permenently injured in the following particulars, to-wit:

a. Severe sprain of the cervicaland lumbar spine.

b. Fracture of the right elbow.

c. Bruises, contusions, and abrasions over and about his entirebody.

9. At the time of the collision, theplaintiff was a healthy and gainfullyemployed person. As a result of saidcollision, he has sustained injurieswhich have caused him to lose considerable time from his work and he willcontinue in the future to lose additionaltime from his employment He hasbeen caused to spend money for hospitalization, doctors, medical bills,drugs, and other kindred expenses andin the future will continue to spend additional money for such purposes. Hehas suffered constant bodily pain andmental anguish, and in the future willcontinue to suffer the same. The plaintiff will be damaged in the sum of OneHundred Thousand Dollars.($100,000.00)

WHEREFORE, plaintiff demandsjudgement against the defendant in thesum of One Hundred Thousand Dollars($100,000.00).

Counsel for Plaintiff

SERVICE

Rule 4(a), of the Federal rules of CivilProcedure provides that upon the filingof the complaint in federal court, theClerk of the court shall issue a summons and deliver it for service to theMarshall or to a person specifically appointed to serve it. Rule 4(d) (4) thenprovides that service shall be madeupon the United States by delivering a



2601 KAVANAUGH, SUITE B UTILE ROCK, ARKANSAS 72205 (501) 66J.6324

the "operational level." Ingham v.Eastern Air Lines, Inc., 373 F. 2d 227(C.A. N.Y. 1967), cert. denied 389 U.S.931.

4. Attorneys' Fees. Section 2678provides that attorneys' fees for administrative claims may not exceed20% of the agency award. Attorneys'fees for litigated claims may not exceed25% of a Court award or settlementafter filing of a complaint in court. Anyattorney who demands or collects agreater amount than the Act permitsmay be fined not more than $2,000 orimprisoned not more than one year, orboth. 28 U.S.C. 2678. With a 25% limitation on litigated cases, one canhardly afford a fine of $2,000 or imprisonment for any length of time.

CONCLUSION

It is, or should be, evident that thesuccessful prosecution of a tort claimagainst the United States requires theexercise of more than the ordinary careusually employed in a tort actionagainst a private defendant. An attorney who is not accustomed to federalpractice or to litigation involving federalagencies may do well to familiarizehimself in more detail with the variousprovisions of the Act prior to the initiation of a federal tort claim. " ....

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tion, absue of process, libel,slander, misrepresentation,deceit, or interference with contract rights.

b. Any claim arising outofthe loss,miscarriage. or negligenttransmission of letters or postalmatter.

c. Any claims or suits involving anadmiralty jurisdiction againstthe United States.

d. Any claim based upon an act oromission of an employee of thegovernment, exercising duecare, in the execution of a statute or regulation, whether ornot such statute or regulationbe valid, or based upon theexercise or performance or thefailure to exercise or perform adiscretionary function or dutyon the part of a federal agencyor an employee of the government, whether or not the discretion be advised. Probably thisexception has given the courtsthe most trouble.

It is not within the purview of thisarticle to discuss that problem, or indeed, other problems, in depth. It mayprobably be safely said, though, thatthe discretionary function exception islimited to exercises of executive discretion at the "policy level" rather than at

iJ' . •

=1,11,": ~ .~ .'4:0,'"

~

Tort Claims Casecontinued from page 127

copy of the summons and complaint tothe U.S. Attorney for the district inwhich the action is brought, and bysending a copy of the summons andcomplaint, by registered or certifiedmail, to the Attorney General of the United States at Washington, D.C.

Rule 12(a) of the Federal Rules ofCivil Procedures provides that the United States shall serve an answer within60 days after the service upon the U.S.Attorney of the pleading in which theclaim is asserted. However, it shouldbe noted that Rule 56 of the FederalRules of Civil Procedure further provides that no jUdgement by defaultshall be entered against the UnitedStates unless the claimant establisheshis claim or right to relief by evidencesatisfactory to the court.

SPECIAL FEATURES OF THE ACT

The Federal Tort Claims Act, 28U.S.C. 1346(b), et seq. has certainprovisions which differ from the procedural requirements under state lawin personal injury cases.

1. Trial by the Court. Section 2402of Title 28, U.S.C., provides that anyaction against the United States underSection 1346(b) (Federal Tort ClaimsAct) shall be tried by the Court without ajury.

2. Statute of Limitations. A tortclaim against the United States shall beforever barred unless (1) it is presentedin writing to the appropriate federalagency within two years after suchclaim accrues, or (2) unless action isbegun within six months after the dateof mailing, by certified or registeredmail, of notice of final denial olthe claimby the agency to which it was presented.

A cause of action does not accrueunder the Federal Tort Claims Act untilthe injury is discovered, or by the exercise of ordinary care should have beendiscovered, and the time of the causeof action accrues is determined by federal law. Kington v. United States,265 F. Supp. 699 (D.C. Tenn. 1967),affirmed 396 F. 2d 9 (6th Cir. 1968).

3. Conduct not covered by theAct. The Tort Claims Act, under Section 2680(d), of Title 28, U.S.C., specifically excludes from coverage the following types of conduct of governmental employees:

a. Any claim arising out of assault,battery, false imprisonment,false arrest, malicious prosecu-


EXECUTIVE COUNCIL NOTESby W. Christopher Barrier

Secretary-Treasurer

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was matched by that of former president Wayne Boyce whose ResolutionsCommittee recommended against itsadoption, and that of former Chief Justice Fogleman. In the final analysis, theproposed article was soundly rejectedby the House.

ERA?:Some final refinements and addi

tions were made to the legislativepackage. With very little discussion,the all-male House of Delegates votedoverwhelmingly to recommend statutory revisions that would mandateequality between the sexes on issuesof inheritence, allowances for survivingspouses, and property rights generally.No one even mentioned the EqualRights Amendment. ..~

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Judicial Article:Clay Robinson of Fort Smith pre

sented an impassioned plea for a revised judicial article, patterned largelyon the article contained in the ill-fatedConstitution of 1980. Tom Carpenterthought the revision was worth having,just because of its favorable impact onjuvenile justice. However, their passion

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"Kutak" cold feet:Frank Mackey did report that the

"Kutak" commission had decided thatit did not want that sort of confrontationover its controversial revision of theCode of Professional Responsibility.The Commission will now present twodrafts-<lne a simple revision of thepresent code, the other its much morecomprehensive and far-reaching revision.

TheHousemetonJanuary17,1981,at the mid-year meeting and heardup-beat updates on Law Day, systems,ethics and insurance.

A substantial amount of heat wasgenerated by the continuing press ofthe Federal Trade Commission to regulate the legal profession, and a proposed new judicial article for theArkansas Constitution.

"Take it and...":On the FTC issue, President Phil

Carroll recommended that the Association take a moderate course as it had"no skeletons in the closet". Herecommended that the FTC's ratherhefty questionnaire be answered without waiving the jurisdictional questionand without conceding that the Association was the correct party to bequestioned.

However, those in attendance werein no mood to be conciliatory. FormerPresident Wayne Boyce stated thatpracticing lawyers had been "abandoned" by the American Bar Association and that it was up to local lawyersto combat the FTC's aggressiveness.The consensus, with few dissents, wasthat the FTC should be told to take theirquestionnaire "and shove it".

JUly 1981iAr1<ansas Lawyer/129

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OYEZ · OYEZ IIBy: Carol Utley

Publications Assistant

The Arkansas Chapter of the March ofDimes presented their prestigious"Citizen of the Year" award to LittleRock attorney HERSCHEL FRIDAY atan awards dinner held February 18th.Guest speaker for the event was LeonJaworski, special prosecutor during theWatergate scandal during the Nixonadministration. B.J. McCOY of LittleRock, former director of the state LocalServices Department under formerGovernor Bill Clinton, has opened hislaw office at 903 Donaghey Building.Attorney BOB SANDERS of Arkadelphia, is serving as 1981 president ofthe Arkadelphia Chamber of Commerce. Sanders is a Clark County Municipal Judge and has served as secretary and president of the Clark CountyBar Association. At its February stockholders' meeting, GREG B. BROWNwas elected to the board of directors ofThe Union Bank of Benton. JIM KENNEDY of Danville, has been appointedby the city council as city attorney.Kennedy is a 1979 graduate of the University of Arkansas Law School. Newport attorney ROBERT B. LAMB announced the opening of his law officefor the private practice of law duringFebruary. Since 1972, Lamb served asdirector for the local Legal Servicesprogram. SAM T. HEUER opened hislaw office in Batesville during February.Before moving to Batesville, Heuerwas associated with the firm of Davis,Bracey and Heuer in Springdale.SANDRA WILSON CHERRY of LittleRock, who has served as assistant United States attorney for the Eastern District of Arkansas for five years, was appointed by Gov. Frank White to a seaton the Public Service Commission.She is the first woman to serve on thePSC. CARAN CURRY was appointedprosecutor coordinator by the Arkansas Prosecuting Attorneys' Association in February. She had been the acting coordinator since November 1980succeeding Dail Stiles who was reappointed to the Worker's Compensation132/Arkansas Lawyer/July 1981

Commission. She is a graduate of theUniversity of Arkansas at Little RockSchool of Law. WILLIAM NASH of little Rock, a lawyer with the Rose, NashWilliamson, Carroll, Ciay and Giroirfirm, became the second Arkansan toreceive the Distinguished Eagle ScoutAward. He is a longtime scout workerand a former president of the Quawpaw Area Council of the Boy Scouts ofAmerica. DANIEL R. ELROD hasjoined the law firm of Elrod & Lee inSiloam Springs which was establishedin the early 1930's by his father, Russell Elrod. Others in the firm are hisbrother, John Elrod, his sister-in-law,Georgia Elrod, and John Terry Lee.Danny was graduated from the University of Arkansas Law School in May1980. MIKE HULEN AND PHILLIP P.CUFFMAN announce the formation ofa partnership for the practice of lawunder the name of HULEN &CUFFMAN. Their offices are located atsuite 2124 First National Building, LiltleRock. CAROLYN CLEGG of Magnoliawas named 1980 Outstanding YoungWoman of the Year by the MagnoliaJaycees. She was graduated from theUniversity of Arkansas School of Lawand has a private practice in Magnolia.H. WILLIAM ALLEN, ROBERT D.CABE and MARKHAM LESTER announce the formation of a partnershipfor the practice of law under the firmname of ALLEN, CABE & LESTER,with offices located at 1290 WorthenBank Building in Little Rock. CAROLRODDY, former deputy prosecutor forthe 19th Judicial District, has joined thelaw firm of EVANS, LUDWIG &EVANS at 529 S. Holcomb Street,Springdale. B. FRANK MACKEY, JR.and ECTOR R. JOHNSON, III announce the addition of Mr. Johnson'sname to the name of the firm which isnow MACKEY & JOHNSON, P.A. at1970 Union National Plaza, Little Rock.PHILLIP A. RALEY, RICHARD L.RAMSEY and SPENCER F. ROBINSON recently became partners in the

law firm of Coleman, Gantt, Ramsey,and Cox in Pine Bluff. ALICE ANNBURNS and LESLIE POWELL weresworn in as assistant attorneys generalduring one of former Chief Justice JohnA. Fogleman's last official acts beforeretiring. Both Burns and Powell aregraduates of the University of Arkansas School of Law. W. H. "SONNY"DILLAHUNTY, United States Attorneyfor the Eastern District of Arkansasfrom 1968 to 1979, has opened his office for the private practice of law atsuite 720, University Tower Building,Little Rock. JACK HOLT, SR. retiredas Little Rock Municipal Judge inJanuary at the age of 77. His careerbegan in Harrison in 1928 when he became prosecuting attorney. Since thattime, he has served as municipal andcircuit judge and as attorney generalfor three terms. He was elected municipal judge in 1970 and served untilJanuary 31, 1980. RICHARD H.MAYS, a Little Rock lawyer who hasbeen enforcement branch attomey forthe state Department of Pollution Control and Ecology, has joined the federalEPA in Washington, D.C. AttorneyJOHN PITTMAN was honored by thePhillips County Bar Association for hisservice as president of the organizationfrom 1976-78. STEPHEN LANERIGGS of North Little Rock, has beenpromoted to general counsel and assistant secretary of Arkansas Powerand Light Company. McPHERSON D.MOORE has become a partner in thefirm of Rogers, Eilers, & Howell in St.Louis. THOMAS L. OVERBEY, EDWARD O. MOODY and JOHN B.PEACE are pleased to announce apartnership under the name of Overbey, Moody, and Peace. Their officesare now in suite 402, First FederalPlaza, Capitol and Spring Streets, LittleRock. LEE THALHEIMER, Little Rockattorney, was appointed in February asState Securities Commissioner byGovernor Frank White. TEDSTRICKER has opened a law office in

AICLE NEWSby Claibourne W. Patty, Jr.

Executive DirectorArkansas Institute of

Continuing Legal Education

by the Labor Law Section is to exposethe registrants to all sides of the issuesand not merely present a"pro-management", "pro-union" or "pro-claimant" bias.

LANDLORD/TENANT FIRST FORARKANSAS

A program entitled "Landlord-Tenant, Law and Practice" jointly sponsored by AICLE and the Real EstateCommittee of the Arkansas Bar Association will have already been presented in Little Rock on April 10, by thetime the Arkansas Lawyer reachesthe membership. Tom A. Buford,chairman of the Real Estate LawCommittee, will have presided over thefollowing topics: "Landlord-TenantLaw, An Overview" by Professor DavidS. Hill of Colorado School of Law andauthor of Landlord and Tenant law ina Nutshell (West, 1979); "Representing the Private Landlord" by S. GrahamCatlett, Esq. of Little Rock; "Representing the Public Landlord" by Richard D.Taylor, Esq. of Little Rock; "LandlordTenant Law, Recent Developments"including legislation in Arkansas, byProfessor Morris Sheppard Arnold,visiting professor at UALR School ofLaw; "Representing the Private Tenant" by Mary Ann Spencer, Esq. of little Rock and" Representing the' Public'Tenant" by William F. Rahn, Esq. ofLittle Rock.

Due to the increase interest in therights of landlords and tenants, and inconsideration of the Model Landlord/Tenants Act which was introducedin the Arkansas legislature (but notpassed) it was deemed to be a timelytopic by your program committee. As itdeveloped without a comprehensivepackage of legislation concerning landlord-tenant relationships, it is all themore important that Arkansas lawyershave a feel of what the rights andresponsibilities of each party are underwhat is now the existing law which

continued on page 134July 1981/Arkansas Lawyer/133

centrated on such diverse topics ascomplaint hearing process before theNLRB, current developments in EEOC,pitfalls of private sector bargaining (union perspective), Arkansas workercompensation-the appeals process,organizing-protective activity, EqualAccess to Justice Act, arbitration andthe duty of fair representation.

As predicted in the past the reputation of this fine presentation on currentdevelopments in the vast area of laborlaw is attracting more and more registrants which are made up of generalpractitioners whose clients find themselves involved in a multitude of casesarising in this area as well as businessagents and presidents of local laborunions in addition to the labor lawspecialists and personnel managerswho have regularly attended the LaborLaw Institutes in the past. The overallpurpose of this institute as presented

CLINTON, formerly Governor of Arkansas, has joined the firm at 2200Worthen Bank Building, Little Rock.JUDITH ANN DESIMONE of PineBluff, a 1981 graduate of the Universityof Arkansas School of Law at LittleRock, has joined the firm of Baim,Baim, Gunti, Mouser and Bryant inPine Bluff. f.....

NEW BAR OFFICERS NAMED

STUDENT BAR ASSOCIATIONFAYETTEVILE LAW SCHOOL

PresidentMary Ann Gunn, Bentonville

1st Vice·PresidentJim Garrison, Fort Smith2nd Vice·President

John L. Popilek, Fayetteville3rd Yr. Representative

Steve Tabor, Fort Smith2nd Yr. Representative

Jerome Paddock, Lead Hill

NORTH PULASKI BARPresident

William S. RobinsonVice·President

John Biscoe BinghamSecretary

Charles E. SmithTreasurer

Mackie M. Pierce

OYEZ-OYEZ

FOURTH ANNUAL LABOR LAWINSTITUTE ATTENDANCEDOUBLES

The Fourth Annual Labor Law Institute, jointly sponsored with the LaborLaw Section of the Arkansas Bar Association, the National Labor RelationsBoard, and the University of Arkansas-Labor Education Program of theIndustrial Research and ExtentionCenter, was conducted April 2-3, 1981,at DeGray Lodge, Arkadelphia. Thisyear's institute, like those held previously, was conducted on a workshopformat which has proved to be successful in the past. The paid registration consisting of labor law attorneys,paralegals, personnel managers,business agents, and officers of laborunion locals totaled 125; which is thebest turnout we have ever had considering the tiighly specialized nature ofthe subject matter. The program con-

Gentry on Highway 59 in the GentryProfessional BUilding. He is a formerresident of Denver, Colorado, wherehe was a broker and president ofMedallion Real Estate and InvestmentCompany. WRIGHT, LINDSEY ANDJENNINGS announce that BILL

ANNUAL MEETINGArlington Hotel, Hot Springs

June 3-6, 1981

FALL LEGAL INSTITUTEHilton Hotel-CE Center

FayettevilleSeptember 10-12,1981

A/eLE News,continued from page 133

never has been crystal clear. I will report on the attendance and the outcome of this timely seminar in a subsequent issue of the Arkansas Lawyer.

THIRD ARKANSAS COLLEGE OFTRIAL ADVOCACY

The Third Annual Arkansas Collegeof Trial Advocacy, jointly sponsored byAICLE, the UALR School of Law, andthe Arkansas Trial Lawyer's Association will be conducted in Little Rock atthe Old Federal Building for five daysbeginning May 11 and ending May 15,1981.

This program will be limited to 24registrants, and it is designed primarilyfor practicing attorneys with zero to fiveyears of trial practice experience. Thistrial advocacy program will stresstechniques and information designedto enhance the practical knowledgeand to sharpen the courtroom skills ofthose attorneys who attend. Lectures,demonstrations and workshops will beconducted by highly qualified teams ofexperienced trial practitioners and lawprofessors. The topics covered will include, but not be limited to, direct andcross examination of witnesses (expertand lay), adverse examination, opening statement and closing argument,use of demonstrative evidence andfoundations-impeachment.

There will be two concurrent workshops, each consisting of a leader, twoassistant leaders and a judge (either areal judge, active or retired, or a seasoned practitioner) with twelve participants in each. Each attorney registeredwill sharpen his or her trial skills byactually performing each of the aboveareas, and their individual performances will be videotaped and critiquedby the workshop leaders.

By the time this issue of the Arkansas Lawyer has been published thegeneral Bar membership will have already received an initial flyer along witha more complete follow-up brochureannouncing the details of the ArkansasCollege of Trial Advocacy programs of1981 including the key demonstratorsand workshop leaders.

the Camelot Inn. The program, whichbilled as a "nuts and bolts workshop"will be concerned with basic tax andsecurities problems connected withcorporations, partnerships and otherbusiness entities.

It is the purpose of these nuts andbolts workshops to provide "awareness" of basic tax and securities aspects of those areas of the general lawpractice which are affected by tax andsecurities law in some way. The objective is to give the participants in thisprogram an idea of the securities andtax aspects involved, some of the general theory behind the applicable lawand points to consider in representingtheir clients without trying to makespecialists out of them.

PROGRAMS IN PROGRESSPlease mark your calendars for

videotape replays of the Midyear Meeting highlighting the Arkansas Creditors'/Debtors' Rights Law and Systemwhich will be held at the following datesand locations: Friday, May 22, Waterman Hall, FayetteVille; Friday, June 12at the Audiovisual Center, ArkansasState University in Jonesboro; Friday,June 19, Community Room, UnionBank and Trust Company, Monticello;and Friday, July 10, Media Center,Southern Arkansas University, Magnolia. The topics presented will includethe following: Truth in Lending, Equal

Credit-Fair Credit Reporting, What anArkansas Lawyer Should Do BeforeObtaining Judgment, Survey of PostJudgment Creditors' Remedies in Arkansas, Problems to Watch for in Closing on Real Estate, Agricultural Credit:Collecting from Farmers, Collecting byFarmers (videotape in Fayetteville, liveat other locations), and Deciding whento put a Debtor in Bankruptcy. John R.Eldridge, III, Esq. will act as moderatorand provide live commentary at theFayetteville location and ProfessorJ. W. "Jake" Looney will speak on theagricultural credit topic live and prOVidecommentary at the other three locations. The videotape replays of theselected topics of the Fall Legal Institute concerning Arkansas DomesticRelations Law and System enjoyed atotal attendance in five locations ofapproximately 150 registrants, and thecombination of videotape and livecommentary were well received bythose attending generally. Thesevideotape replays allow attorneys anopportunity to attend at least a substantial part of a major program which theywere not able to see live in Little Rock.These programs which offer the newArkansas Bar Association's systems ata discount price also permit thoseattending to take advantage of thesame seminar rates as were those attending the main event.

THIRD ANNUAL TAX AWARENESSINSTITUTE

A Tax Awareness Institute, jointlysponsored by AICLE, the Taxation,Trusts and Estate Planning Sectionand the Securities Law Committee ofthe Arkansas Bar Associatiorr will bepresented in Little Rock on May 1st at


MID-YEAR MEETINGCamelot Inn, Little Rock

January 14-16, 1982

ADDENDAby C. E. Ransick

Editor

Former Judge Indicted;Becomes 18th NamedOn Kickback ChargesThe above headline appeared in The Gazette on March

18, 1981.

The following letter appeared earlier in The Gazetteunder From the People on the editorial page. The Gazette'seditor deleted the portions of the letter in heavy print. Theletter below is as was sent in by Attorney-at-Law Erwin L.Davis of Fayetteville.

Dear Editor:Couldn't help but cringe at the

black-robed caricatures at the topof your Section B Page 1, on February 5, 1981.

Readers will recall that these"Judges" were taking money out of(presumably not putting moneyinto) the pockets of lay personsand vice versa, depicting the ultimate insult to the public trust, bribery. This cartoon illustrated thevery well written article on certain

corrupt past County Judges in Arkansas, which article listeda ghastly number of them who had pled guilty or wereotherwise convicted of felonious behavior.

It is regrettable that the public image of County Judgesmust suffer even if it was from their ranks that these rottenapples fell. Most County Judges are mighty good men.However it is doubly regrettable, if not patently unforgiveable, that the image of the real Judges of this State must alsosuffer. Yes, unforgiveable because those lowbrow crookslisted in the article, who happen to have been called"JUdges", has Virtually nothing to do with the system ofjustice in Arkansas. County Judges in Arkansas are notJUdges. They are just called Judges. And that nomenclatureis a wrong to the Bench and Bar of this State.

For two years now, I have read a veritable flood of articleson these "JUdges", headlined "JUdge Pleads Guilty" or"Judge Convicted of Bribery" and the like. Upon every suchreading I was a little relieved, as a lawyer, that the wrongdoer was a person outside our profession. And every time Isaw such an article, I knew that while I understood thedistinction and knew that these men were neither lawyersnor judges, I also knew that the public did not know. Theimage of our Bench and Bar (Judges and lawyers) has beenunfairly tarnished by this confusion. The answer to thistravesty lies in a change of name for County Judges.

It is true that historically the County "Judges" heard a veryfew select kinds of cases such as those involving juveniles,illegitimate offspring and certain roadways of necessity.There is even a little spillover today though most County"Judges" no longer hear these matters, and, by law, thesecases are heard by trained lawyers called Juvenile Judgesor Referees. In reality, a County Judge in Arkansas is thechief administrative officer of the County, the chief executiveof the County, like the Governor of the State or the President. As such, he presides over the County Legislativebody and administers to most County employees. Hemakes purchases for the County with increasing guidance from the County Legislators and rides herd onthe County's roads and bridges. He is asked to do a lot,and he may in fact be overworked.

But he is not a JUdge. He is not even a lawyer. He nevertook a course in law, not even one, and probably never setfoot in college. He couldn't define "public trust" or "fiduciaryduty" and he never was told about ethics in school. If hewasn't taught honesty at home in his youth, then his education was left to County purchasing agents and corporatereps. And he wears overalls, not black robes as shown inyour cartoon.

All of the above is of course unimportant overstatement, except it does show a distinction. He is CountyJUdge for only a while before going back to whatever itwas he was doing before he became County Judge. Heis not a member of any professional organization, unless by chance, and he may feel no responsibility toward any highly professional group of persons of whichhe is a member. This overstatement serves only to illustrate a point: County Judges are not Judges.

The real Judges in this State are the Chancellors, theCircuit Judges, and Probate Judges, the Judges of the Su-

JUly 1981/Arkansas Lawyer/135

preme Court and of the Court of Appeals, the many FederalDistrict Judges and Judges of other Courts of record. Theseare the men and women (hereafter called men) responsible for administering justice. They are all lawyers.They are all educated men who were trained in the law,who are aware of their role in the administration ofjustice, and who are responsible to themselves, theirfamilies and to the legal profession of which they arelife-time members. Perhaps their highest trust is owedto the public who put them there. Most of these Judgesare thrifty and hard working men, some are very sophisticated and capable of grasping in one sitting very complex fact patterns, and not a one of them has beenconvicted of such a low rent thing as bribery or anyother felony. These are the men in the black robes whodecide all legal and equitable issues before the Courtsin Arkansas. These are the men who constitute thejudiciary in Arkansas, the men who devote their lives toa noble cause and worthwhile profession, the men whoreceive as compensation therefor a fraction of whatmost could earn in the private practice of law. No, thesemen wouldn't take a bribe- and folks would be well advisednot to try one on for size. Attempted public servant bribery isa crime, and the real Judges of this State are sure to blow thewhistle. Those corporate agents convicted of bribing a fewdull and gutless County "Judges" wouldn't even knowwhere to find a real Judge, and if their paths crossed,wouldn't have anything to say.

The legal profession keeps its own house pretty clean,tho' it may have a few justly deserved crosses to bear. Theprofession can hardly afford to tote around the miserableimages of greedy and crooked Judges falsely created in thepublic mind by bad elements outside our profession.

I would strongly urge the Arkansas Legislature (or thepeople) to change the name of the office of County Judge,maybe to "County Administrator" or "County Coordinator"or "Supervisor" or anything but Judge. This is necessary topreserve the image of the legal profession, the realjudiciary, our system of justice, and even our wholeState. I can just imagine a Texan or an Easterner blowing through town seeing your article (which was accurate) and your cartoon (which was not) and thinking"Gee, the Judges in Arkansas are sure a bunch ofcrooks" or "Golly, what a rotten system of justice herein Arkansas". Neither could be further from the truth.

We people of Arkansas have a right to be proud of ourlegal system and the people in it, but a necessary step isto make the word"Judge" mean Judge.

Yours truly,Erwin L. Davis

Mr. Davis had two purposes in taking the time to write theletter to The Gazette, viz.,

(1) The attempt to get The Gazette properly to identify theindividuals involved in these criminal proceedings; and

(2) Informing the general public as to the proper identification of such individuals.

In its column, From the People, The Gazette made acommendable effort with its headline before Mr. Davis' letter, "Protect Good Names of Real Judges". Perhaps, The


Gazette could have followed up with a change in its March18th headline, as follows: "Former County Official Indicted".

Fortunately, Arkansas has not had scandals involving itsjUdiciary. Every effort should be made to preserve thejudiciary's well-deserved reputation. The media and themembers of the Arkansas Bar should join in this effort.

"MEMORIAL GIFfS

"It is more blessed to (,rive than to receive"I-Iowc\'cr, 8 member profits both ,",'uys with a memorial gift to the Arkansas Bar Foundation. One's gift isa beautiful way of honoring a former colleague. Thefamily lUust be most apl)recialive of such relllcm·bronee. The gift is noted ill the FOlUnlation's Memorial Book 8nd, of cuur8C, is tax ded1lf·lihle. Memorialgifts may be sent to the Arkansas Bar Center. TIlememorial card (below) of the Arkansas Bar Fowldalion is formal and is prompLly delivered upon reeeipiof the memorial gifl.

WE ACKNOWLEDGE WITH GRATEFUL APPRECIATION

THE RECEIPT OF A GENEROUS MEMORIAL GIFT

FROM

OF

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(Prior Cnrpnnlfil' name e.actly 9. on certlfiClu~of inC0f"Jl0N1k)n. IC longer mlll\ i5 chancten and tpeeeI. add $5. 75 for 2" die leal.)Shipment free when youendoee check. o NPV '" 0 PV $ CapitalWioon $

o ShIp vta Air-Sl.OO ~Xb'a

o Fat del;..., in TX add oab tax.

Number

________________________ ZipCod< AR

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Shipmetlt withjn Z. hou.... Ccn:i6cates signed by ~ident and(Scaetary.aeasun:r. una othawlK lpCCibed)

DIRe 11244 compkte~t-rtSOL. dtr. min., rmttist:,law, etc., S".50extta.

a.-R~~t:l VISAShipro _

REQUEST SHIPMENTBY AIR$J.ooEXTRAWITHIN THECONTIGUOUS4llSTATES($4.50 ELSEWHERE)

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july 1981

Documents

hastings college

college instruction

criminal justice practice

trial bar

day criminal justiceprogram

faculty members

toenhance advocacy skills

videotaped lectures