the arkansas lawyer magazine winter 2015

A publication of the Arkansas Bar Association Vol. 50, No. 1, February 2015online at www.arkbar.com

LawyerThe Arkansas

Inside:

ArkBar Lawyer Legislators

Tort Reform

Retirement Planning

Same-Sex Marriage

2 The Arkansas Lawyer www.arkbar.com

June 10-13, 2015

Justice Oliver Diaze, Jr.

Former Mississippi Supreme Court Justice

Friday, June 12, Keynote Speaker

“Buying Justice: Corporate Spending on

Judicial Elections in the Wake of

Citizens United”

The Arkansas Bar Association Annual Meeting

is the largest legal event in Arkansas. Over

four days, attorneys will come together

for continuing legal education, receptions,

award ceremonies, and entertainment.

From traditional social events and receptions

to cutting edge CLE, the ArkBar Annual Meeting

is the place to be in June.

The 117th Annual Meeting will be held June

10-13, 2015. This year’s theme of Preserving

Justice For All brings together a stellar

lineup of local and out-of-state speakers.

Register now! Visit the official Annual Meeting siteace.arkbar.com/AnnualMeeting

The 117th Annual MeetingReturns to Hot Springs

Annual MeetingArkBar

June 10 -13, 2015

Register Now!

Preserving Justice For All

ace.arkbar.com/AnnualMeeting

“Come for thecelebration

leave with the

education.”#ArkBarAM

Join us in Hot Springs for the ArkBar Annual Meeting

LawyerThe Arkansas

Vol. 50, No. 1

features

PUBLISHERArkansas Bar Association

Phone: (501) 375-4606 Fax: (501) 375-4901www.arkbar.com

EDITORAnna K. Hubbard

EXECUTIVE DIRECTORKaren K. Hutchins

EDITORIAL BOARDJim L. Julian, ChairKeith L. ChrestmanKaren Sharp Halbert

Judge Brandon J. HarrisonAshley Welch HudsonAnton Leo Janik, Jr.

Philip E. KaplanTory Hodges Lewis

Drake MannGordon S. Rather, Jr.David H. Williams

OFFICERSPresident

Brian H. RatcliffBoard of Governors Chair

Anthony A. HilliardPresident-Elect

Eddie H. Walker, Jr.Immediate Past President

Jim SimpsonPresident-Elect Designee

Denise Reid HoggardSecretary

F. Thomas CurryTreasurer

Shaneen K. SloanParliamentarianLeon Jones, Jr.

Young Lawyers Section ChairJessica S. Yarbrough

BOARD OF GOVERNORSThomas M. Carpenter

Suzanne G. ClarkDon R. Elliot, Jr.Frances S. Fendler

Amy FreedmanBuck C. GibsonAmy L. Grimes

Denise Reid HoggardDon Hollingsworth

Leslie J. LigonJeffrey Ellis McKinley

Wade T. NaramoreLaura E. PartlowJerry D. PattersonKristen L. Pawlik

Brant PerkinsJohn C. Riedel

Gwendolyn RuckerJerry L. “Jay” Shue, Jr.

Brian A. VandiverDanyelle J. Walker

LIAISON MEMBERS Brian M. Clary Jack A. McNulty Judge Van A. Gearhart Rosalind M. Mouser Karen K. Hutchins Richard L. Ramsay Judge Mary S. McGowan Charles D. Roscopf

The Arkansas Lawyer (USPS 546-040) is published quarterly by the Arkansas Bar Association. Periodicals postage paid at Little Rock, Arkansas. POSTMASTER: send address changes to The Arkansas Lawyer, 2224 Cottondale Lane, Little Rock, Arkansas 72202. Subscription price to non-members of the Arkansas Bar Association $35.00 per year. Any opinion expressed herein is that of the author, and not necessarily that of the Arkansas Bar Association or The Arkansas Lawyer. Contributions to The Arkansas Lawyer are welcome and should be sent to Anna Hubbard, Editor, [email protected]. All inquiries regarding advertising should be sent to Editor, The Arkansas Lawyer, at the above address. Copyright 2015, Arkansas Bar Association. All rights reserved. Contents Continued on Page 2

14Meet the New Arkansas Supreme Court and Arkansas Court of Appeals Judges

16ArkBar Lawyer Legislators

18Act 649 of 2003, Act 1116 of 2013, Shelton, Methany, and a Special Task Force Later, Where are We on Allocation of Fault?By Brian G. Brooks

20What’s New? Act 1116 of 2013 Creates Allocation of Fault Without Actual ContributionBenjamin McCorkle

24Tort Reform in WonderlandBy G. Spence Fricke and Scott M. Strauss

28Retirement Planning for Lawyers: Why You Should Consider a Retirement Plan for Your FirmBy Melanie J. Strigel and Tom Overbey

36A Tale of Two Arguments: Same Sex Marriage in the Arkansas Courts and the Fayetteville Fairness OrdinanceBy Danielle Weatherby

42Traps for Us Attorneys Not Blessed with a Steel-Trap MindBy John Keeling Baker


Delegate District A-1: Jon B. Comstock, Andrew T. Curry, Angelia Esparza Muldoon, Kristin L. Pawlik, Vicki S. VasserDelegate District A-2: Suzanne G. Clark, William Fitzgerald Clark, Casey D. Copeland, Bob Estes,

M. Scott Hall, Jason M. Hatfield, Matthew L. Fryar, Leon Jones, Jr., Joshua D. McFadden, Sarah A. SparkmanDelegate District A-3: Aubrey L. Barr, Veronica Lawson Bryant, Colby T. Roe, Samuel M. Terry, Candice A. Settle

Delegate District A-4: Open Delegate District A-5: Wade A. WilliamsDelegate District A-6: Jonathan E. Kelley Delegate District A-7: Samuel J. Pasthing

Delegate District B: John T. Adams, Amber Wilson Bagley, Eric Scott Bell, Bart W. Calhoun, Frankianne E. Coulter, Grant M. Cox, Jason W. Earley, Edie Ervin, Caleb Peter Garcia, Kenya J. Gordon, Shana Woodard Graves, Stephanie M. Harris, James E. Hathaway III, Christopher Heil, Matthew R. House, Amy Dunn Johnson,

Jamie Huffman Jones, Dominique King, William C. Mann III, Patrick W. McAlpine, J. Cliff McKinney, Chad W. Pekron, Shaneen K. Sloan, Jonathan Q. Warren,J. Adam Wells, David H. Williams, Thomas G. Williams, George R. Wise, Jr., Shana R. Woodard, Kim Dickerson Young

Delegate District C-1: Roger U. Colbert Delegate District C-2: Michelle C. HuffDelegate District C-3: Keith L. Chrestman, Robert J. Gibson, Jason Milne Delegate District C-4: Jobi J. Teague

Delegate District C-5: Matthew Coe, Sara Rogers, Albert J. Thomas III Delegate District C-6: Michael L. Murphy, Andrea G. Woods Delegate District C-7: Jimmy D. Taylor Delegate District C-8: Brent J. Eubanks, John P. Talbot, Jessica S. Yarbrough

Delegate District C-9: Chase Adam Carmichael, Jenny Denise Chambers-Lemoine, Leslie J. Ligon Delegate District C-10: Clark D. Arnold, George M. Matteson Delegate District C-11: Sterling Tanner Chancey, J. Philip McCorkle

Delegate District C-12: Kurt J. Meredith, Michelle M. Strause Delegate District C-13: John Andrew Ellis, Brian M. Clary Law Student Representatives: Tiffany Nicole Godwin, University of Arkansas School of Law; Nicholas Williams, UALR William H. Bowen School of Law

HOUSE OF DELEGATES

2224 Cottondale Lane, Little Rock, Arkansas 72202

Arkansas Bar Association

LawyerThe Arkansas

Vol. 50, No. 1

ArkBar News 4

Board of Governors Report 10

2014-2015 Board of Governors 11

A Call to Leadership 12

2014 CLE Speakers and Planners 34

CLE Calendar 40

Disciplinary Actions 48

Arkansas Bar Foundation 54Memorials and Honorarium

In Memoriam 55

Classified Advertising 56

in this issue

President’s Report 7Brian H. Ratcliff

Young Lawyers Section Report 9Jessica S. Yarbrough

columns

A publication of the Arkansas Bar Association Vol. 50, No. 1, February 2015online at www.arkbar.com

LawyerThe Arkansas

Inside:


Tort Reform

Retirement Planning

Same Sex Marriage

For information on submitting articles for publication, go tohttp://tinyurl.com/thearkansaslawyermagor email [email protected]

Vol. 50 No .1/Winter 2015 The Arkansas Lawyer 3

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A r k B a r ’ s Marketing and I n f o r m a t i o n Specialist, Crystal Newton, recently celebrated her five-year anniversary. Crystal’s day-to-day responsibilities include database management, web-

site content, membership marketing and special events such as the Annual Meeting and Mock Trial.

“Crystal has helped the Association integrate new technological and mar-keting strategies that have allowed the Association to keep up with our member’s expectations,” said Executive Director Karen K. Hutchins. “Her determination to make it right makes her invaluable to both Association volunteers and staff. Her assistance to the Mock Trial Committee’s recent restructure of the competition has allowed the event to expand and include even more Arkansas high school stu-dents.”

Crystal and her husband have a three-year old son, Bryson, and are expecting their second son, Easton, in March.

ArkBar Staff Anniversary

Crystal Newton

ArkBar NEWS

Denise Reid Hoggard was elected the new Arkansas Bar Association President-Elect Designee following a ballot count in December 2014. Ms. Hoggard is an attorney with Rainwater, Holt & Sexton in Little Rock.

Ms. Hoggard currently serves on the Board of Governors; as Chair of the Personnel Committee; Co-chair of the Women in the Profession Committee; and is a member of the Bar’s Long-Range Planning Committee, Law School Committee, and Leadership Academy Committee. She is a Bar Association Benefactor and a Sustaining Bar Foundation Fellow. She has served as a member of the Judiciary Committee, Chair of the Labor and Employment Section, and as past President of the

Arkansas Association of Women Lawyers for three terms.Ms. Hoggard will assume the office of President-Elect at the June 2015 Annual

Meeting and President at the June 2016 Annual Meeting.

Denise Reid Hoggard Elected ArkBar President-Elect Designee

Denise Reid Hoggard

The Arkansas Bar Foundation welcomes Lauren Phillips as the new Associate for Finance and Administration.

Lauren and her family relocated to the Little Rock area from Maryland two years ago and lived overseas in Rota, Spain, before that time. Lauren earned her B.S. Degree in Transportation & Logistics and Marketing from the University of Maryland College Park and her MBA Degree in Management from Loyola University Maryland. She worked as a budget analyst for the United States Customs Service in Washington, D.C. and as the payroll/insurance lead for The Griffmore Group in Maryland. She most recently served as a part-time sales auditor

for Dillard’s, Inc. Lauren lives with her husband, Commander Joseph P. Phillips, United States Navy,

and their three children: twins Aaron and Lynda, age 15, and Danny, age 11.

Arkansas Bar Foundation Welcomes New Staff Member

Lauren Phillips

ArkBar Leaders at Arkansas Supreme Court Justices’ Investiture

Pictured from left to right: President-Elect Eddie H. Walker, Jr., President-Elect Designee Denise Reid Hoggard, President Brian H. Ratcliff, and Immediate Past President Jim Simpson. The Arkansas Bar Association leaders attended the swearing-in ceremony at the Justice Building for the three Arkansas Supreme Court justices on January 6, 2015.

SIGN UP FOR THE MINI REVIEWSBe one of the first to know about significant case decisions.Mini reviews are posted to the Case Summaries discussions in ACE. To join, login to ACE & go to the Communities tab, All Communities and Join Case Summaries.


ACCOLADESRosalind M. Mouser has become a member of the American College of Bankruptcy. The Jewish Federation of Arkansas honored Justice Annabelle Tuck as this year’s grand honoree for its annual Tikkun Olam awards. UALR School of Law Dean Michael Hunter Schwartz was named among the “2014 Most Influential People in Legal Education” by National Jurist Magazine.

APPOINTMENTS AND ELECTIONSThe U.S. Senate confirmed the nomination of Colette Honorable to join the Federal Energy Regulatory Commission. Governor Asa Hutchinson appointed Leon Jones Jr. as director of the Arkansas Department of Labor and Lamar Davis and Elana Wills to the Arkansas Public Service Commission. Lori L. Burrows has been named as vice president and general counsel for Arkansas Electric Cooperative Corp. and Arkansas Electric Cooperatives Inc. Dan Young of Rose Law Firm has been elected a Fellow of the American College of Trust and Estate Counsel. Fred Ursery will serve a second three-year term on the Central Arkansas Library System board of trustees. Jeannie L. Denniston was appointed as Conway County District Judge. Darrin Williams has been appointed to the Little Rock Technology Park Authority Board.

WORD ABOUT TOWNQuattlebaum, Grooms & Tull PLLC recently announced that Brandon B. Cate has become a managing member of the law firm; Grant M. Cox, Michael B. Heister, Joseph W. Price II and Everett C. (Clarke) Tucker IV have been named members; and Ashley D. Phillips and Meredith Causey have joined as associates. Scott Hall has been elected as a shareholder of the Hall Estill law firm in Tulsa. Trae Gray, founder of LandownerFirm.com has moved into a law office overlooking Lake Carmack in Coal County, Oklahoma. Gill Ragon Owen, P.A. announced that Wm. David Duke became a shareholder and Jordan Wimpy recently joined the law firm as an associate. Richardson Richardson Boudreaux announced that Jason C. Messenger has been named a partner in the Tulsa based firm. Eichenbaum Liles, P.A. in Little Rock announced that Thomas B. Staley has joined the firm as of counsel. Wilson & Associates announced that Randy Bueter, Shellie Wallace and Aaron Squyres have been named shareholders in the law firm. Williams & Anderson announced that Dana Landrum joined the law firm. Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C. has elected three counsel to the firm’s membership, elevating the status of Courtney C. Crouch, III, Zachary T. Steadman, and Mary Catherine Way to members.

We encourage you to submit information for publication in Oyez! Oyez!Please send to [email protected].

Oyez! Oyez!

ArkBar NEWS

It is time to nominate deserving candidates for this year’s Arkansas Bar Foundation and Arkansas Bar Association Annual Awards. The awards open for nomination are:• Outstanding Lawyer• Outstanding Lawyer-Citizen• C.E. Ransick Award of Excellence• James H. McKenzie Professionalism Award• Equal Justice Distinguished Service Award• Outstanding Jurist Award• Outstanding Local Bar Association

These awards will be presented at the Annual Meeting in Hot Springs in June. You are encouraged to nominate Arkansas lawyers, judges and local bar associations who deserve recognition. Nomination forms may be submitted by any Association member. Forms are available at www.arkbar.com under the “What’s New” tab or by calling Ann Pyle at the Arkansas Bar Foundation at 501-375-4606.

Deadline for submission of Annual Award Nominations due

Friday, March 13, 2015

Upcoming ArkBar CLEFebruary 26-27 Natural Resources InstituteMarch 12-13 Appellate AdvocacyApril 16-17 Debtor Creditor law Institute

Nominate a Colleague for the Lawyer Community Legacy

Award Nominations Due February 28, 2015

Do you know an unsung hero or heroine?

Submit nomination online at www.arkbar.com under the

“Awards Nominations” tab in your member portal.


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Dessert is the sweet conclusion to a meal. Many times it is what we remember the most. The pièce de résistance can range in form and substance from a sorbet to cool and cleanse the palate to a dense decadent cake that leaves one stuffed for a week. I will confess that sometimes I get too carried away with my appetizer and entrée and do not have any room for dessert. Over Thanks-giving we had our nieces and nephew for a visit. As my neph-ew Beckett was chomping down on a hamburger, I warned him that he would not have room for dessert. Without missing a beat he said, it was “not a problem—I have two stomachs.” I like his approach to dessert. Dessert is the hardest thing for me to cook. I am just not a skilled baker. I do have several favorites that are tried and true such as Bananas Foster, Amaretto Crème Brule with chocolate swirls, bread pud-ding, and ganache soaked choco-late brownies. When dining out if there is a pastry chef listed on the web site or menu I will look hard at the dessert offerings be-fore ordering so I can make sure to get my sweet tooth satisfied. Some of our favorite places for dessert have been Restaurant Au-gust in New Orleans and Charlie Trotter’s in Chicago.

With that being said, I have several desserts to offer for a tast-ing. The first would be some-thing to help cleanse your palate. Perhaps a deliciously light lemon soufflé. This would be the Annu-al Meeting June 10-13, 2015, in Hot Springs. As I have travelled and met other bar presidents, it is sweet to have them all asking

questions about the success and attendance at our annual meet-ing. They want to replicate what we do. As president an impor-tant appointment is the Annual Meeting Chair. It is hard to find someone to sacrifice the time it takes to do this right. My deci-sion was easy. Paul Keith called me and volunteered! Paul has an excellent meeting planned. Our theme is “Preserving Justice for All.” We have Justice Oliver Diaz, Jr., whose story on the Mississip-pi Supreme Court inspired the John Grisham novel, “The Ap-peal.” Other programs include: Law, Justice, and the Holocaust: How the Courts failed in Ger-many by Dr. William Frederick Meinecke, Jr., and Humorist at Law, Sean Carter.

While the Annual Meeting has wonderful CLE, it is more than that. This is an opportunity to meet new friends and catch up with old colleagues. For the most part lawyers all over our state are very civil to each other. I am of the opinion one reason is that each year we all gather and enjoy our company together and just have fun. If you have never been to an Annual Meeting please come and give it a taste. It is like your favorite dessert. All you have to do is think about it and many memories of food, family and love come flowing.

The next offering for your menu is the big and decadent death by chocolate dessert. This would be the work done by the Task Force on License Suspen-sion chaired by Past President Jim Simpson and the House of Delegates. After many meetings and rewritings, the Task Force

recommended amending Rules Governing Admission to the Bar, Rule VII. The Association supporting this amendment re-quired approval by the House of Delegates so a special meet-ing was called. Several people warned me not to be disappoint-ed if the required quorum, 51% of the voting members, was not met. On November 17, 2014, 48 voting delegates attended the special meeting, which made a quorum by two. Our Associa-tion staff gave a Herculean effort to obtain a quorum for the spe-cial meeting. The House passed a recommended version of Rule VII following discussions and re-visions. On Tuesday, November 18, 2014, I filed with the Arkan-sas Supreme Court a Petition to Amend Rule VII. On Thursday, November 20, the Court entered a Per Curiam adopting a new Rule VII. The Per Curiam states:

We thank the members of the Task Force and the Bar Association for their work. Because time is of the essence, we must act on the proposal without opportunity of comment. Accordingly, we accept the recommendation with mi-nor revisions and adopt the amendment to Rule VII C as a provisional rule, effec-tive immediately.” (empha-sis added) 2014 Ark. 498

I strongly suggest you read the new rule. We learned that approximately 900 of our col-leagues are delinquent in paying their annual license fee to the Supreme Court. The new rule

has teeth. If bar members are delinquent in paying the annual license fee, the delinquent attor-ney’s name will be published in a Per Curiam issued by the Court. I am proud of our Association as a whole. Our members sacrificed and worked on the revised rule and showed up for a specially-called meeting that many did not think could happen. This was a dessert where two parts work together to create a fabu-lous taste, i.e. chocolate cake and raspberry sauce.

The final item on your dessert tasting menu is our current leg-islative session. I know there is nothing sweet about this! I failed to mention that there are savory desserts too. I love a good cheese tray with fruits for dessert. One of my favorites is blue cheese. I think the session can be akin to this. It does not look good, has an odor, but boy can it be good. At this time, the session is just getting moving. The Legislative Committee has had two formal meetings, and has not instructed our lobbyist, Jack McNulty, to support or oppose any bills. My next article will give you a de-tailed report on the session and our legislative package.

Bon Appétite.

A Three Course Meal—The Dessert

By Brian H. Ratcliff

PRESIDENT’S REPORT

Brian H. Ratcliff is the president of the Arkansas Bar Association.

He is partner with PPGMR Law, PLLC and manages the El

Dorado office.


Extensive Form List with new forms added periodically.

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Business Organizations

Acknowledgements

Civil Litigation, Federal & State

Commercial Transactions

18

7

16

3

Creditors’ Remedies

Construction

Criminal Procedure

Decedents Estates

13

12

28

25

Domestic Relations

Deeds

Easements

21

6

1

Leases

Guardianships

Liens

Real Estate & Real Estate Finance

3

22

16

21

Entity & Corporate Authority 1

only


“You have not lived today un-til you have done something for someone who can never repay you.” — John Bunyan

These long lasting words of the old English Christian writer and preacher should resound loudly within the hearts of those who appreciate the principles of service above self.

While in Portland, Oregon, for the American Bar Associa-tion Young Lawyers Division Fall Conference, I seized an opportunity to serve as a vol-unteer for Project Street Youth. This program is the current na-tional public service project of the Young Lawyers Division. According to the ABA, there are over 1.7 million homeless youth in the United States, and the population grows each year. Almost 40% of the homeless population is under 18 years of age. The unfortunate aspect of this study shows that Arkansas is included within this calcula-tion. However, the saving grace is that Arkansans, young lawyers in particular, have the opportu-nity to make a positive impact in the lives of those that are less fortunate.

Project Street Youth has three main components:

Educating and Raising Awareness of the Issue. Young Lawyers are being armed with information and materials that

will help educate other lawyers and members of their commu-nity about the severity of the homeless youth problem in this country, as well as the laws and policies enacted to combat youth homelessness.

Legislation. Young lawyers are encouraged to lobby for laws and policies to address the issue of youth poverty or homeless-ness, and provide those model laws and policies.

Legal Clinic. Young lawyers are encouraged to partner with existing community organiza-tions and set up legal clinics to help homeless youth or those who are in foster care with credit and consumer issues; public as-sistance and government ben-efits; and tickets, warrants, and minor criminal matters.

While in Portland, my great-est reward was assisting a home-less youth who entered the legal clinic upon learning that young lawyers were present. Quickly dismissing his current situation and lack of resources, his eyes became bright as he inquired as to whether there was a patent attorney in the room. While I am not a patent attorney, other lawyers and I were able to point him in the right direction and he received a one-on-one session on what it takes to make his dream come true. The time taken for that young man who I will likely never see again was a seed sown

in helping to possibly change his life forever. Other youth had questions about credit issues, identity theft, and criminal mat-ters.

In Arkansas, there is an over-whelming population of chil-dren and youth who are in the custody of the Department of Human Services. According to the Arkansas Dream Center, there are many children who do not have proper after school supervision because of their par-ents’ or guardians’ work sched-ules. YLS looks forward to mak-ing a lasting difference in the lives of many by partnering with the Arkansas Dream Center to assist with after school mentor-ing, providing clothing, furni-ture, toys, and books for the less fortunate.

YLS members should also consider becoming a member of Volunteers Organization for Central Arkansas Legal Services (VOCALS). The Center for

Arkansas Legal Services helps people who suddenly find them-selves vulnerable or helpless. According to Donna Ramsey, Pro Bono Coordinator in Pine Bluff, clients are interviewed and screened prior to the refer-ral. Lawyers are also asked about their preference of cases and are able to accept them when con-venient.

There are countless avenues to get involved and make an impact in the lives of those who may never be able to repay their benefactors. Those interested should contact a member of the YLS, or make contact with a lo-cal civic organization. As John Bunyan would ask, “Have you lived today?”

Project Street Youth at the American Bar Association’s YLD Fall Conference in Portland, Oregon

YLS REPORT

Living and Giving

By Jessica S. Yarbrough

Jessica S. Yarbrough is the

Chair of the Young Lawyers Section. She is an attorney with McKissic &

Associates, P.L.L.C. in Pine Bluff.


Report from December 2014 Board of Governors Meeting

By Karen K. Hutchins

The Association’s Board of Governors met December 5-6, 2014, at the Arkansas Bar Center. Chair Anthony Hilliard began the meeting by welcoming the 2015 Leadership Academy class mem-bers. This was just one of the many opportunities that the class has to learn about and experience leadership in the legal community.

President Brian Ratcliff reported to the Board that its appoint-ment of the Administrative License Suspension Task Force led to a recommendation to petition the Supreme Court to amend Rule VII C of the Rules Governing Admission to the Bar. The Task Force’s recommendation was presented to and approved by the House of Delegates at a special session held on November 17 at the Arkansas Bar Center. The Association filed the petition to amend Rule VII C with the Supreme Court who quickly issued a Per Curiam adopt-ing the rule changes. The Task Force’s work was completed, and the task force was disbanded by the Board upon recognition of the importance of their work.

Chair Aaron Squyres presented the Governance Committee Report. The committee developed a privacy policy which the Board voted to recommend for adoption by the House of Delegates at their February 2015 meeting. The Board also approved the Governance Committee’s recommendation to adopt a Memorandum of Agreement clarifying the administration of the Arkansas Bar Association Political Action Committee.

The Board congratulated Ms. Denise Hoggard in her recent election as the 2016-2017 President-Elect. In her current role as Personnel Committee Chair, Ms. Hoggard reported that the com-mittee supported adoption of an Executive Director Succession Plan. The plan was approved at the meeting. Also recommended by the Personnel Committee was a By-Law amendment to Article V Executive Director. The purpose of the amendment was to clarify the role of the Executive Director in carrying out the business of the Association. Article V will be presented to the House at their February meeting along with Article XII Indemnification, which was previously recommended by the Board in August for consider-ation by the House in February.

The Alternative Dispute Resolution (ADR) Section requested that the Board approve proposed amendments to their bylaws. The ADR Section bylaws were reviewed and approved by the Board. Additionally, the Board reviewed the Executive Committee’s rec-ommendation to alter the Leadership Academy’s schedule to be held

every other year to coincide with full legislative sessions. The Paralegal Committee report was presented by Chair Amy

Johnson. That committee has developed Guidelines for the Utilization of Paralegals and asked that they be presented to the House. The Board voted to present the guidelines to the House for their consideration.

Mr. Larry Burks, Chair of the Task Force on Professional Liability Insurance, presented their report. This Task Force has worked diligently to review our current professional liability insur-ance benefit. The Task Force recommended that the Association create a new comprehensive structure for its lawyer professional liability insurance program. The Board approved the Task Force’s recommendations and collectively thanked the members of the task force for their continued service to improve this important member benefit.

With the legislature’s recent appointment of an Independent Citizens Commission to study the salaries of judges and legislators, the Board fully supported the creation of a task force which could participate in the conversations on judicial salary as invited.

The Board encourages all members to mark their calendars to attend the 2015 Mid-Year meeting as it returns to Little Rock. All Arkansas attorneys are welcome to attend the Opening Reception at the Clinton Presidential Library on Wednesday, February 18. Other special Mid-Year events include the Supreme Court’s Oral Arguments in the Old Statehouse at 9:00 am on Thursday, February 19. This marks the first time the Supreme Court has heard oral arguments at the Old State House for over a century. Seating is limited for this event. Visit www.arkbar.com for more information on Mid-Year activities and to register.

KAREN K. HUTCHINS, J.D., CAE, is the Executive Director of the Arkansas Bar Association.


2014-2015 OfficersPresident, Brian H. RatcliffBoard of Governors Chair, Anthony A. HilliardPresident-Elect, Eddie H. Walker, Jr. Immediate Past President, Jim SimpsonSecretary, F. Thomas CurryTreasurer, Shaneen K. SloanParliamentarian, Leon Jones, Jr.Young Lawyers Section Chair, Jessica S. YarbroughPresident-Elect Designee, Denise Reid Hoggard

Board of Governors: Thomas M. Carpenter, Suzanne G. Clark, Don R. Elliot, Jr., Frances S. Fendler, Amy Freedman, Buck C. Gibson, Amy L. Grimes,Denise Reid Hoggard, Don Hollingsworth,Leslie J. Ligon, Jeffrey Ellis McKinley, Wade T. Naramore, Laura E. Partlow, Jerry D. Patterson, Kristen L. Pawlik,Brant Perkins, John C. Riedel, Gwendolyn Rucker, Jerry L. “Jay” Shue, Jr., Brian A. Vandiver, Danyelle J. Walker

Liason Members: Brian M. Clary, Judge Van A. Gearhart, Karen K. Hutchins, Rosalind M. Mouser, Judge Mary S. McGowan, Jack A. McNulty, Richard L. Ramsay, Charles D. Roscopf

This photo was taken at the Capital Hotel in Litttle Rock by KES Photos

during the December 2014 Board of Governors meeting.

Front Row (l to r): Eddie H. Walker, Jr., Shaneen K. Sloan, Kristen L. Pawlik, Brian H. Ratcliff, Amy Freedman, Anthony A. Hilliard; Second Row: Jerry D. Patterson, Karen K. Hutchins, Judge Mary S. McGowan, Laura E. Partlow, Suzanne G. Clark, Denise Reid Hoggard, Leon Jones, Jr., Jeffrey Ellis McKinley, Amy L. Grimes; Third Row: Brian A. Vandiver, Brant Perkins, Don Hollingsworth, Wade T. Naramore, F. Thomas Curry; Fourth Row: Thomas M. Carpenter, Jack A. McNulty, Richard L. Ramsay, Buck C. Gibson

Arkansas Bar Association

2014-2015 Board of Governors


Election Process for Governors and Delegates For both governors & delegates, a nomination petition, signed by three current members of the Association who reside in the geographical area of election, must be filed with the Secretary at the Arkansas Bar Association, 2224 Cottondale Lane, Little Rock, AR 72202, no later than March 31, 2015.

A CALL TO LEADERSHIP IN THE ARKANSAS BAR ASSOCIATION

Board of GovernorsQualifications for Board of Governors The attorney must reside in the geographi-cal area for the Governor’s position and must have served one year in the House of Del-egates or must have been an Association member for seven years by the time of joining the Board of Governors in June. One Governor position is available in the districts listed. All are three-year terms.

House of DelegatesQualifications for House of DelegatesThe attorney must be an Association member residing within the delegate district as defined by Article XVI Section 2 of the Association’s Constitution. All are three-year terms.

The petitions, current members of both bodies and district maps are listed on the Association’s website at www.arkbar.com. Board of Governors and House of Delegates links are located from the “Home” tab. The Young Lawyers link is located on the home page. Questions? Contact the Association at 501-375-4606.

Secretary & TreasurerArticle III, Section 7 of the Association’s Constitution pro-vides for an annual election of the positions of a Secretary and a Treasurer. Any member interested in serving in either of these capacities shouldcontact Karen K. Hutchins at 501-375-4606.

American Bar AssociationDelegateOne of the two ABA Delegate positions is open for election for a two-year term. The Del-egate from this Association to the House of Delegates of the American Bar Association shall be nominated by petition signed by at least 75 Associa-tion members with at least 25 voting members from each of the three state bar districts. The nominating petitions must be filed with the Secretary at the Arkansas Bar Association, 2224 Cottondale Lane, Little Rock, AR 72202, no later than March 31, 2015.

Young Lawyers SectionNominating Petitions are due March 31, 2015 for:

Chair-Elect elected from District B (one-year term)Secretary/Treasurer elected from any District (one-year term)Representative District A (three-year term)Representative District B (three-year term)Representative District C (three-year term)

A-01 Benton2 Delegates

A-02 Washington4 Delegates*

A-03 Crawford, Franklin, Johnson, Sebastian2 Delegates

A-04 Conway, Logan, Perry, Polk, Scott, Yell1 Delegate**

A-06 Pope1 Delegate

B Pulaski 10 Delegates

C-01 Clay, Greene, Lawrence, Randolph1 Delegate

C-02 Independence, Jackson, Sharp1 Delegate

C-03 Craighead 1 Delegate

C-04 Mississippi, Poinsett1 Delegate

C-05 Cleburne, Crittenden, Cross, St. Francis, White, Woodruff1 Delegate

C-06 Faulkner, Van Buren1 Delegate

C-08 Arkansas, Grant, Jefferson, Lincoln, Phillips, Lee1 Delegate

C-09 Ashley, Bradley, Calhoun, Chicot, Cleveland, Columbia, Dallas, Desha, Drew, Ouachita, Union1 Delegate

C-10 Miller1 Delegate

C-11 Clark, Hempstead, Howard, Lafayette, Little River, Montgomery, Nevada, Pike, Sevier 1 Delegate

* One of these seats is open due to vacancy and has a term ending in 2017. ** This seat is open due to vacancy and has a term ending in 2017.

02-BG Cleburne, Independence, Jackson, Jefferson, Lonoke, White, Woodruff

04-BG Bradley, Calhoun, Columbia, Drew, Hempstead, Lafayette, Little River, Miller, Nevada, Ouachita

09-BG Baxter, Boone, Carroll, Faulkner, Fulton, Izard, Lawrence, Madison, Marion, Newton, Randolph, Searcy, Sharp, Stone, Van Buren

11-BG Clark, Conway, Crawford, Franklin, Howard, Johnson, Logan, Montgomery, Perry, Pike, Polk, Pope, Scott, Sevier, Yell

13-BG Pulaski

14-BG Pulaski


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Associate Justice Karen R. Baker

Position 6

Associate Justice Rhonda K. Wood

Position 7

Associate Justice Robin F. Wynne

Position 2

Meet the New Arkansas Supreme Court and

Arkansas Court of Appeals Judges

Three Supreme Court justices were sworn in on Tuesday, Janu-ary 6, 2015, in the courtroom at the Justice Building. Justice Karen Baker was reelected to serve an eight-year term. Court of Appeals Judges Rhonda Wood and Robin Wynne were both elected to eight-year terms on the Supreme Court.

The ceremony was historic, as Arkansas will have its first female-majority court. The first woman to serve on the Supreme Court was Elsijane Trimble Roy, who was ap-pointed to complete a term from 1975-1977. Justice Annabelle Im-ber Tuck was the first woman to be elected to the Supreme Court. She served from 1997 until her retire-ment in 2009.

The new and reelected Court of Appeals judges were sworn in on January 30, 2015, at the Justice Building. Information courtesy of the Arkansas Judiciary website.

Arkansas Supreme Court

at the courts

Arkansas Court of Appeals

Judge Ray Abramson

District 1, Position 1

Judge Kenneth Hixson


JudgeCliff Hoofman


Judge Larry Vaught


Judge Bart Virden


Judge Phillip Whiteaker


Judge Mike Kinard

District 5


Exhibit A:150 combinEd yEArs of impEccAblE ExpEriEncE.(nEEd wE go on to Exhibit b?)

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The Arkansas Bar Association has four members serving in the Senate and 10 members serving in the House of Representatives. Governor Asa Hutchinson and Attorney General Leslie Rutledge are also Association members.

A priority of the Arkansas Bar Asso-ciation is to assist in the enactment of laws which comply with the Arkansas and U.S. Constitutions and improve the legal system in Arkansas. The Association works full-time to monitor legislation

issues affecting justice and the legal profession.

The Association is your advocate at the state Capitol. The Leg-islation Committee meets every Friday to review all bills that

have been filed and keep you up-dated throughout the session. Ark-Bar’s Legislative Resources website is your source for current legislation issues affecting justice and the legal

profession. You must first login to www.arkbar.com and then go to Legislative Resources under the For Attorneys tab on the home page. The recently updated website is the place to find the status of bills of interest to the legal profession as well as more re-sources to keep you updated.

Back the Pac! Become a supporting member of your non-partisan political action committee. Only $30 per year. Join today via your Member Portal on www.arkbar.com.

90th General Assemblyat the capitol


GovernorAsa Hutchinson

Attorney GeneralLeslie Rutledge

SenatorDavid Burnett

District 22

SenatorJeremy Hutchinson

District 33

SenatorDavid Johnson

District 32

SenatorBruce Maloch

District 12

RepresentativeBob Ballinger

District 97

RepresentativeCamille Bennett

District 14

RepresentativeMary Broadaway

District 57

RepresentativeDouglas House

District 40

RepresentativeMatthew J. Shepherd

District 6

RepresentativeClarke Tucker

District 35

RepresentativeJohn T. Vines

District 25

RepresentativeJohn W. Walker

District 34

RepresentativeMarshall Wright

District 49

RepresentativeDavid Whitaker

District 85


Act 649 abrogated the common law doctrine of joint and several liability and replaced it with separate proportional liability, called “several” liability by the Act. This abrogation created a right in each defendant sued to a judgment in which he or she is liable for no more than his or her proportional share of damages.4 The legislatively-created procedural device implementing Act 649’s change in the common law was declared unconstitutional by Johnson v. Rockwell Automation, Inc.,5 but Johnson did not replace that procedural device with something else. Defendants in cases where absent tortfeasors could be held responsible for some of the plaintiff’s injuries looked to a contribution action to accomplish a mathematical allocation of fault to every tortfeasor whether or not that tort-feasor was a party to the case from whom the plaintiff sought a money judgment at the time of the verdict.

Brian G. Brooks is a solo practitioner who focuses on appellate practice and complex legal research, writing and advocacy for the plaintiff’s bar.

Act 649 of 2003, Act 1116 of 2013,

Shelton, Metheny, and a

Special Task Force Later,

Where are We on

Allocation of Fault?

By Brian G. Brooks

The Winter 2014 edition of The Arkansas

Lawyer contained articles discussing allo-

cation of fault following the abrogation of

joint and several liability in Act 649 of 2003.1

In true “Joe Friday” form,2 I wrote simply to

describe the status of the law at that time.3

Continuing in the spirit of that venerable

detective, I endeavor here to bring us up-to-

date on the topic.


But ProAssurance Indemnity Co., Inc. v. Metheny,6 and St. Vincent Infirmary Medical Center v. Shelton7 held that Act 649 con-tained no right to allocation and that a contribution action seeking only an alloca-tion of fault was not cognizable due to the language of the contribution statute. So, the Legislature enacted Act 1116 of 2013, which alters the contribution statute in a clear effort to remedy the flaws identified by Metheny and Shelton: want of a “right” to allocation and lack of a cognizable cause of action for contribution solely to allocate fault.

On August 2, 2013, the Arkansas Supreme Court appointed a task force to address con-cerns arising in the 2013 legislative session, including an effort to strip the Court of its exclusive rule-making authority.8 The Court noted that the debate arose even though no “recommendations” had been submitted to the Court for changes to rules of pleading, practice and procedure that were implicated in the debate, namely those “concerning ‘damages and/or liability in civil litigation.’”9 The Special Task Force was appointed to “insure thorough examination of the con-cerns” raised in the legislative debate.10

The Special Task Force issued its Interim Report at the end of December 2013.11

The topic addressed by the Task Force by way of proposed amendments to Rules 9, 49 and 52 of the Rules of Civil Procedure was allocation of fault and the interplay between Act 649 of 2003 and Act 1116 of 2013. The report was published, com-ments were sought and received on the proposed changes, and those comments resulted in changes to the proposed Rules by the Court’s Committee on Civil Practice.12 In August 2014, the Court adopted changes to Rules 9, 49, and 52, effective January 1, 2015, that put in place a procedure for allo-cating fault to absent alleged tortfeasors in civil cases.13 In essence, these Rule changes allow juries to assess “fault” against parties not sued by the plaintiff, or with whom the plaintiff has already settled before trial, when the procedures are followed and where the language applies. Lifting language directly from Act 1116 of 2013, the Rules allow assessment of fault against anyone “who may have joint liability or several liability” for the plaintiff’s injury even if that person or entity is not, and perhaps never was, a party to the

suit. The overarching question purposely left unanswered by the Rules’ drafters, a question highlighted in a dissent from the Court’s per curiam adopting the Rules, is how far the language “may have … liability” reaches.

Two opinions from the Court also enter the mix. J-McDaniel Constr. Co. v. Dale E. Peters Plumbing Ltd.14 held that a tradi-tional contribution action through which one tortfeasor actually seeks a contribution payment from another tortfeasor survived Act 649. English v. Robbins15 held, on the other hand, that Act 1116’s creation of a right to allocation of fault where no money judgment is sought from an absent tortfeasor was something new in the law that could not be applied retroactively.

The Court did not comment on how the holding in English v. Robbins squared with its alterations to Rules 9, 49 and 52. Presumably, the Court made no such com-ment because those alterations were not in effect when the case was tried or when it was decided. The failure is unfortunate and somewhat short-sighted. The altera-tions to the Rules are in large part driven by the creation of a right to allocation of fault to nonparties by Act 1116. Indeed, the language of Act 1116 is placed directly into the Rules. Those Rules are to apply to cases before the courts from their effective date on, but English v. Robbins holds the right they are driven by is prospective only. Where and when does the right to allocation come into effect?

The remand of English v. Robbins raises the issue quite pointedly and in a bizarre way. One reason English was reversed was because the right to allocation could not apply to it retroactively and allow alloca-tion of fault to the settling tortfeasor. But now, on remand, the new Rules appear to require just that. So, can the defendants now allocate fault to that settling tortfeasor even though the case was reversed at least in part on that basis? That question is unanswered by the cases or the Rules.

That is where we are with respect to allo-cation of fault in Arkansas. Rules are now in place, but their breadth and width are uncertain. A right to allocation exists, but it is prospective only, and its breadth and width is also uncertain. Let the cases on construction begin.

Endnotes:1. 2003 Acts of Ark. No. 649 § 1(a).2. “Joe Friday” is the fictional detective on the Dragnet series, initially a radio show and later a television program, created by Jack Webb. Detective Friday was fond of telling digressing and editorializing wit-nesses during interviews, “Just the facts, ma’am.” My intent in my writings on Act 1116 thus far has been the same. No edito-rializing. “Just the facts, ma’am.”3. Brian G. Brooks, Legislative and Case Law Ties That Bind Act 649 of 2003 with Act 1116 of 2013, 49 The Arkansas Lawyer 38 (Winter 2014).4. 2003 Acts of Ark. No. 649 § 1(b).5. 2009 Ark. 241, 308 S.W.3d 135.6. 2012 Ark. 461, 425 S.W.3d 689.7. 2013 Ark. 38 425 S.W.3d 761.8. In re Special Task Force on Practice and Procedure in Civil Cases, 2013 Ark. 303 (Aug. 2, 2013) (per curiam).9. Id. at 2. 10. Id.11. In re Special Task Force on Practice and Procedure in Civil Cases, 2014 Ark. 5 (Jan. 10, 2014) (per curiam).12. In re Special Task Force on Practice and Procedure in Civil Cases—Ark. R. Civ. P. 9, 49, 52 and Ark. R. App. P—Civ. 8, 2014 Ark. 340 (Aug. 7, 2014).13. Id.14. 2014 Ark. 282, 436 S.W.3d 458.15. 2014 Ark. 511.


By Benjamin R. McCorkle1

Benjamin McCorkle is co-founder of the Beacon Legal Group, a general service law firm emphasizing Internet law.

What’s New? Act 116 of 2013

Creates Allocation of Fault

Without Actual Contribution

Reacting to Johnson v. Rockwell Automation, Inc., ProAssurance

Indemnity Co., Inc. v. Metheny and St. Vincent Infirmary Medical Center

v. Shelton, the Arkansas General Assembly passed Act 1116 of 2013,

amending the Uniform Contribution Among Tortfeasor’s Act (“UCATA”),

codified as amended at Ark. Code Ann. § 16-61-201, et seq. (Supp. 2013).

The General Assembly created a new right to allocation of fault to a non-

party at trial regardless of whether the trial party’s right to actual monetary

contribution existed; the trial party simply could request that the jury

allocate fault to a nonparty. The absence of the right to actual monetary

contribution did not matter.

Two cases made their way to the Arkansas Supreme Court. J. McDaniel Construction Company, Inc. v. Dale E. Peters Plumbing Ltd.2 is a “bad house” case involving the home buyer, the builder and the subcontractors. English v. Robbins3 is a medical malpractice case, where one defendant settled and the plaintiff proceeded to trial against the other defendants.4

Was Act 1116 Constitutional If Applied Retroactively?To determine whether an Act of the legislature can be applied

retroactively, a court must determine, based on the facts of the case, whether retroactive application imposes a new right or whether it is purely remedial applying a previously existing right. The analysis becomes one of as-applied constitutionality.

1. If the right to contribution is present and being sought, then it is constitutional.

J. McDaniel involved a dispute among defendants, the contractor and the subs concerning the contractor’s right to actual monetary contribution after the plaintiff settled. The Court found that Act 1116 was essentially procedural and remedial in nature where the right to actual monetary contribution was sought. Because contribution among tortfeasors for indemnity and money damages was a previously existing right, Act 1116 could be applied retroactively.


2. If the right to contribution does not exist and is not being sought, then application of Act 1116 retroactively is unconstitutional.

In English, the defendants added a third-party defendant close to trial for the pur-pose of allocation of fault and did not seek actual monetary contribution. On appeal, the Court held that Act 1116 created a new right to allocation of fault where actual monetary contribution did not exist nor was being sought and that such a new right could not be applied retroactively without violating the Arkansas Constitution.

Impact of Act 1116 on Plaintiffs 1. Defendants are able to place some

nonparties on the jury ballot for the purpose of allocation of fault, without claims for actual monetary contribution (see below). Therefore, defense counsel will not be lim-ited to telling the jury that some other unnamed nonparty or named party, not present at trial, is responsible for some or all of the fault.

2. Act 1116 is generally procedural and remedial in nature where the right to actual monetary contribution exists; however it also created a new right—allocation of fault where the right to actual monetary contribu-tion does not exist and is not being sought.

3. If the defendant is claiming a right to actual contribution for indemnity or money damages from another party or former party to the lawsuit who may have settled, Act 1116 can be applied retroactively. For exam-ple, after the plaintiff settles, Act 1116 can be applied retroactively to permit the defendants to fight it out over allocation of fault for con-tribution purposes (J. McDaniel) where the right to contribution still exists (see below).

4. If the issue is just allocation of fault, then it cannot be applied retroactively. (English).

5. Adding a third-party defendant for allocation purposes can result in a role reversal for both defendant’s and plaintiff’s trial counsel:

a. Defendant’s counsel must take on the role traditionally held by plaintiff’s counsel because the defendant has the burden of proving that the third-party defendant was negligent.

b. Plaintiff’s counsel must defend the absent, third-party defendant to explain the relative negligence shared by all the defen-dants placed on the jury ballot.

Two additional takeaways from English are tangentially related to Act 1116.

1. Rule 14 allows a third-party complaint within 10 days of answering a complaint, or allows a third-party complaint with leave of the court after 10 days.5 However, the tim-ing of adding a third-party defendant can be unduly prejudicial. The English Court found that the circuit judge did not abuse her discretion in concluding the plaintiff was unduly prejudiced by the defendant’s waiting over two years and then filing a third-party complaint close to the time of trial.6

2. Failing to instruct the jury that the defendant has the burden of proving the fault of the third-party defendant may be unduly prejudicial. At trial, the English trial judge instructed the jury that the plaintiff had the burden of proving the third-party defendant’s negligence and denied a prof-fered jury instruction based on AMI 206.7 Improperly instructing the jury on the bur-den of proof can provide sufficient prejudice to justify a new trial.8

Unanswered QuestionsMcDaniel and English shed some light

on post-Act 1116 third-party defendant actions, especially on the question of retro-active application. However, several ques-tions remain unanswered.

1. Can a defendant who has been assigned some, but not all, of the fault by a jury take an additional offset based on the amount of the settlement paid by a third-party defendant?

Section 5(c)(1) of Act 1116 states that defendant’s judgment is reduced by the amount of the settlement or the pro rata share of the settlement, whichever is greater. Assume Plaintiff sues D1 and D2. D1 settles for $100. The jury awards Plaintiff $300, attributing 50% of the fault each to D1 and D2. D2’s liability is $150. Plaintiff gets a total of $250. Plaintiff is short $50, but that’s life. However, under section 5(c)(1) D2’s judgment is reduced by $100 (settlement), and P only recovers $50 from D2, in spite of the jury’s award. If section 5(c)(1) is inter-

preted as allowing a reduction beyond that specified by the jury, this would effectively limit the amount of recovery by a plain-tiff. Article V, Section 32 of the Arkansas Constitution provides that other than for workman’s compensation, “no law shall be enacted limiting the amount to be recovered for injuries resulting in death or for injuries to persons or property; . . . .”9 If this section is interpreted to allow an additional offset, its constitutionality is seriously in doubt.

2. When does the application of Act 1116 become retroactive?

We know that attempting to apply Act 1116 after the jury has rendered a verdict is a retroactive application. However, sup-pose a case is filed before the effective date of Act 1116, and the defendant attempts to invoke the new right of allocation of fault prior to the commencement of trial.10 Is that an attempt to apply Act 1116 retro-actively because Act 1116 was not in effect at the time the action was commenced? Some would argue that the right to file a third-party complaint with leave of the court existed at the time Act 1116 became effective. Therefore, no vested right would be impaired. However, other courts have refused to apply a new law to a tort commit-ted before the law was enacted.11

3. Can a defendant add an immune nonparty as a third-party defendant for allocation of liability?

For example, in a highway construction case, can the Arkansas Highway Department be placed on the verdict form for allocation of fault, even though they are immune as a governmental entity? Or, can a hospital that is immune from a damage award under charitable immunity be added as a third-party defendant under Act 1116? Or, can an employer who is immune under the Workers’ Compensation Act be third-par-tied in for allocation of fault? My best guess is no. Act 1116 applies only to “two (2) or more persons or entities who may have joint liability or several liability in tort for the same injury. . . .”12 If a potential party is immune from suit or damages, then that party could not be held liable.

4. Is Act 1116 facially unconstitutional


as an impermissible intrusion into the Court’s exclusive power to make the rules of procedure?

While the separation of powers issue was raised in English, the Court did not find it necessary to address the issue because the appellants attempted to apply Act 1116 retroactively. Act 1116 has both substantive and procedural aspects. The newly created right to allocation of fault without money damages is substantive and would not invade the Court’s exclusive power to promulgate the rules governing the procedure and prac-tice of law.13 On the other hand, procedural aspects of Act 1116 identified by the Court in McDaniels could constitute an uncon-stitutional intrusion into the Court’s rule-making powers.

5. Will a plaintiff ever settle with only one of several defendants?

The rule of thumb has been, “Settle with all defendants or with none.” This informal rule is based on the tendency of juries to

conclude that if a plaintiff settles with one defendant, then the plaintiff already has his or her money and does not need any more. Now, a piecemeal settlement is even less likely. Allocation of fault and the potential set-off issue noted above effectively preclude partial settlement in most cases.

ConclusionSince the passage of the Civil Justice

Reform Act of 2003, the practice of tort law in Arkansas has been in a state of upheaval and confusion. Act 1116 and the interpret-ing case law attempted to clarify some of the issues raised by the abolition of traditional, time-honored and tested common law joint and several liability. It will be rare to see contribution in the future. Contribution may arise where there is a settlement with-out allocation of fault (McDaniel); under Ark. Code Ann. § 16-55-203 where a court determines that one defendant’s share is not reasonably collectible and increases the per-

centages among the other defendants; under Ark. Code Ann. § 16-55-205 where defen-dants or their agents were acting in concert; or perhaps under a products liability claim.

Plaintiffs should expect to see third-party defendants added just for allocation pur-poses under Act 1116. Now, a plaintiff who proceeds to trial against one defendant after settling with another takes on the huge risk of an unknown outcome, depending on how this new right of allocation of fault is applied to reduce the jury’s verdict. Rather than cutting down on the cost and expense of litigation, it has only increased it.

Endnotes1. The author was appellee co-counsel in English v. Robbins. This article will not attempt to recite the complete procedural and case history, as these have been ade-quately addressed elsewhere in this and pre-vious issues of The Arkansas Lawyer. See e.g. The Arkansas Lawyer (Winter 2014).2. 2014 Ark. 282, 436 S.W.3d 458.3. 2014 Ark. 511.4. The Arkansas Rules of Civil Procedure have been amended to facilitate the changes made by Act 1116 of 2013.5. Ark. R. Civ. P. 14.6. See English, 2014 Ark. 511, at *10.7. See id. at *11-13.8. See id.9. Ark. Const. art. V, § 32.10. This issue is before a circuit court at the time of this writing.11. A statute abolishing the rule of no con-tribution among joint tortfeasors was held not to apply in the case of a tort committed before it was passed. See Massey v. Sullivan County, 464 S.W.2d 548 (Tenn. 1971).Cf. Phillips v. Agway, Inc., 389 N.Y.S.2d 977 (N.Y. App. Div. 1976). A Pennsylvania court denied retroactive application of a comparative negligence statute. See Costa v. Lair, 363 A.2d 1313 (Pa. Super. Ct. 1976). See generally 2 Sutherland Statutory Construction § 41:9 (7th ed. 2014). 12. Act 1116 of 2013, § 2(1).13. Ark. Const. art. 4, § 2; Ark. Const. amend. 80, § 3.

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By G. Spence Fricke and Scott M. Strauss

Tort Reform in Wonderland

G. Spence Fricke (pictured left) concen-trates his practice in the areas of profes-sional liability and personal injury defense litigation for the Barber Law Firm. Scott M. Strauss (pictured right) leads the Barber Law Firm’s Insurance Coverage Practice Group.

The subject of tort reform and the issue of which branch of government is the greatest among equals has been the subject of debate and speculation since the Arkansas General Assembly enacted the Civil Justice Reform Act (Act 649 of 2003) and the Arkansas Supreme Court largely nullified it in Johnson v. Rockwell Automation, Inc.1 Following the Court’s decision in Johnson2 (striking the at-fault nonparty procedure), we were left with several, rather than joint and several liability, but with absolutely no way to assure that any one defendant or at-fault party paid only its share of liability. This vacuum was met with conflicting trial court decisions attempting to implement this new, substantive, right to pay only one’s share of fault.3

Following the Supreme Court’s decision in Johnson4 and the widely varying trial court decisions attempting to imple-ment several liability, the Arkansas General Assembly again entered the fray, this time amending the Uniform Contribution Among Tortfeasor’s Act5 (“UCATA”) to set out precisely how a defendant might assure itself of a true “several” rather than “joint” share of the plaintiff’s damages. The act itself stated that it was “remedial in nature” and to apply “to all causes of action accruing on or after March 25th 2003,” the date on which the Civil Justice Reform Act6 went into effect.

“How puzzling all these changes are! I’m

never sure what I’m going to be, from one

minute to another.”

— Lewis Carroll, Alice’s Adventures in

Wonderland


The amendment to the Uniform Contribution Among Tortfeasors Act led to the inevitable challenges concerning the date of implementa-tion of the Act’s language. In construing the timing issue, the Arkansas Supreme Court, in J-McDaniel Construction Company v. Dale E. Peters Plumbing Ltd.,7 stated:

However, as McDaniel argues, and as it asserted below in its motion for reconsideration subsequent to this court’s dismissal of the first appeal, the General Assembly has since passed Act 1116 of 2013, which clarified that a claim for contribution pur-suant to the UCATA still exists after the 2003 enactment of the CJRA. [reversing its earlier opinion in St. Vincent Infirmary Medical Center v. Shelton8]...

The cardinal principle for construing reme-dial legislation is for the courts to give appro-priate regard to the spirit which promoted its enactment, the mischief sought to be abol-ished, and the remedy proposed. Although the distinction between remedial procedures and impairment of vested rights is often difficult to draw, it has become firmly estab-lished that there is no vested right in any particular mode of procedure or remedy. Statutes which do not create, enlarge, diminish, or destroy contractual or vested rights, but relate only to remedies or modes of procedure, are not within the general rule against retrospective operation. In other words, statutes effecting changes in civil procedure or remedy may have valid retrospective application, and remedial legislation may, without violating constitutional guarantees, be con-strued to apply to suits on causes of action which arose prior to the effective date of the statute.

Id. at 353–54, 266 S.W.3d at 713 (internal citations omitted).

Applying these principles to the present case, it is clear that Act 1116 was intended by the General Assembly to have retroactive effect. According to the stated purpose of the Act, which became effective on August 16, 2013:

It is the intent of the General Assembly that the rights afforded to joint tortfeasors by this act apply with equal force after the modification of joint and several liability as provided in § 16-55-201 [Civil Justice Reform Act], and that none of the rights granted to joint tortfeasors by this act, including allocation of fault and credits for settlements entered into by other joint tortfeasors, shall be denied to joint tortfeasors.

Act of Apr. 11, 2013, No. 1116, § 1, 2013 Ark. Acts 4345, 4346. Furthermore, the [amended Uniform Contribution] Act also states that, “This act is remedial in nature and applies to all causes of action accruing on or after March 25, 2003.” Id. § 8, 2013 Ark. Acts at 4348. Not only did the legislature expressly state that Act 1116 was to have remedial effect, the statutory provisions at issue in this case, which provide for a right to contribution, remain essentially unchanged from their prior versions. It is apparent that any changes that were made pursuant to Act 1116 were only

procedural in nature, contrary to the assertions of appellees. See Steward, supra. Thus, as McDaniel argues, Act 1116 is retroactive and applicable to this case.9

So, as of June 2014, the law was settled, Act 1116 amending the Uniform Contribution Among Tortfeasors Act applied retroactively, consistent with its own language and the Supreme Court’s decision in J-McDaniel.10 It appeared that for the first time since tort reform was considered in 2003, the General Assembly and the Supreme Court reconciled and spoke with a single voice. But……………

The doctrine of stare decisis provides:

[I]t is the policy of courts to stand by precedent and not to disturb settled point[s]. … [W]hen [a] court has once laid down a prin-ciple of law as applicable to a certain state of facts, it will adhere to that principle….11

In construing the doctrine of stare decisis the Arkansas Supreme Court stated:

This court has consistently recognized that the doctrine of stare decisis is of fundamental importance, and that our prior decisions should not be overruled unless great injury or injustice would result. [internal citations omitted]...As Justice Cardozo recognized many years ago, no judicial system could do society’s work if it eyed each issue afresh in every case that raised it. B. Cardozo, The Nature of the Judicial Process 149 (1921).12.

Despite its decision holding that Act 1116 was to be applied ret-roactively (J-McDaniel) and despite its adherence to the doctrine of stare decisis, and just short of six months following its decision in J-McDaniel,13 the Arkansas Supreme Court revisited the issue of the retroactive impact of the amended Uniform Contribution Among Tortfeasors Act14 in its decision in English v. Robbins,15 reaching a vastly different result. Specifically, the Court stated:

Appellants’ second argument is that the circuit court erred in denying their motion to set aside the order vacating the judgment following the General Assembly’s passage of Act 1116 of 2013. Appellants argue that this Act clarifies the law that a claim for con-tribution and allocation of fault is proper and should be applied retroactively to this case. We agree with the circuit court that the

Tort Reform in Wonderland

Wonderland Revisited“Alice came to a fork in the road. ‘Which road do I take?’

she asked.‘Where do you want to go?’ responded the Cheshire Cat.‘I don’t know,’ Alice answered.‘Then,’ said the Cat, ‘it doesn’t matter.’” —Lewis Carroll, Alice in Wonderland


Act cannot be applied retroactively to this case because it creates a new, substantive right of allocation of fault that the appel-lants sought to invoke in this case.16

To be fair, the Court attempted to recon-cile its holdings in J-McDaniel17 and English18 when it stated:

Our decision in J-McDaniel Construction Co. v. Dale E. Peters Plumbing, Ltd., 2014 Ark. 282, 436 S.W.3d 458, is not inappo-site to this holding because the statutory provisions at issue in that case did not directly impact the newly created substan-tive right to allocation of fault. In that case, the plaintiff had brought suit against a construction company, which in turn filed third-party complaints against sub-contractors. The plaintiff subsequently settled with all defendants. The circuit court dismissed the third-party com-plaints for contribution. On appeal, this court held that Act 1116 could be applied retroactively because “the statutory provi-sions at issue in this case, which pro-vide for a right to contribution, remain essentially unchanged from their prior versions.” Id. at 12, 436 S.W.3d at 467.

The markedly different procedural posture of the instant case mandates a different result. First, because the plain-tiff had settled with the defendants in J-McDaniel, that case involved only the right of contribution for indemnity and money damages and not the right to receive an allocation of fault. While the provisions of Act 1116 regarding contri-bution for indemnity and money dam-ages are similar to the previous version of the UCATA, the provisions of Act 1116 establishing a substantive right to an allo-cation of fault between joint tortfeasors are wholly new.19

A literal application of this language creates a very troubled legal outlook by encourag-ing plaintiffs not to settle with less than all defendants. Should a plaintiff settle with less than all defendants, he runs the risk of subse-quent apportionment as to a defendant who will have no incentive to defend himself. A settled defendant might even be encouraged to “fall on his sword,” claiming all liability at trial secure in the knowledge it has no fur-ther exposure to the plaintiff by virtue of his release. Consequently, and in the absence of

apportionment, plaintiffs will be forced to take all defendants to trial or settle with all defendants simultaneously. Given the public policy of encouraging settlement,20 one is left is left to wonder as to the purpose of this seemingly artificial distinction as between contribution and apportionment when both are designed to assure the right to several rather than joint and several liability. As the Arkansas Supreme Court has noted time and again, Arkansas’ public policy is determined by review of its constitution and its statutes.21 Following the adoption of the Civil Justice Reform Act,22 and in the absence of any showing of constitutional infirmity, the public policy of Arkansas clearly favors not only sev-eral liability but also a mechanism by which to enforce the right to several liability.

Conclusion

Those who practice tort law (and, indeed, any other area of practice) on a day-to-day basis know all too well that their comfort level in the decisions they make and the plead-ings they file is founded on certainty and predictability. Knowing the state legislature and the Arkansas Supreme Court have consis-tently assured the practitioner that a particular defense, claim or pleading in general is the proper one for a given set of circumstances serves to greatly lessen one’s anxiety level in an already stressful profession. It also helps one advise his or her client on expected outcomes and overall strategies.

It naturally follows that a host of legislative acts and inconsistent appellate decisions often have a severe negative impact on stability.23 Knowing, for example, the correct method to use to be sure your defendant/client is assessed only her proportionate share of any fault gives you a clear-eyed look at the approaching ter-rain. Not knowing, on the other hand, leads to confusion, uncertainty and inconsistent fit-ful efforts at addressing the situation by both courts and lawyers.

An objective reading of J-McDaniel24 reveals no equivocation on the Court’s part on the retroactive effect of Act 1116. The decision was clear: There were no caveats in terms of its applicability. Act 1116 was to be applied retroactively. To then hold approximately six months later that it was not retroactive, at least as to an allocation of fault, leaves the practitioner in a state of complete uncertainty. What other portions of the Act are retroactive? What portions are not? Can one be assured a statute will be applied retroactively when

the legislature says its intent is for it to be retroactive?

The editors of this publication asked us to comment on the implementation of Act 1116 in light of the J-McDaniel25 and English26

opinions. Our comment, frankly, is “we don’t know.” Like Alice, we are not sure of the direction in which we are going; unlike the Cheshire Cat, however, that matters a lot to us.

Endnotes:1. Johnson v. Rockwell Automation, Inc., 2009 Ark. 241, 308 S.W.3d 135. 2. Id.3. See, e.g., Montgomery v. Chesterton Co.. Case No. CV2010-209, Crawford County Circuit Court; Reed v. Malone’s Mechanical, Inc., W.D. Ark., Ft. Smith Div., J. Dawson, Case No. 2:09-CV02061-RTD; Reed v. Malone’s Mechanical, Inc., W.D. Ark., Ft. Smith Div., J. Holmes, 2:11-cv-02135; Robinson v. Power Equip. Co., Case No. CV2010-108-6, Ouachita Circuit (Judge David Guthrie).4. Johnson, 2009 Ark. 241.5. Act 1116 of 2013.6. Act 649 of 2003.7. J-McDaniel Constr. Co. v. Dale E. Peters Plumbing Ltd., 2014 Ark. 282, 436 S.W.3d 458.8. St. Vincent Infirmary Med. Ctr. v. Shelton, 2013 Ark. 38, 425 S.W.3d 761.9. J-McDaniel, 2014 Ark. at 10-12, 436 S.W.3d at 465-467.10. J-McDaniel, 2014 Ark. 282.11. Black’s Law Dictionary 5th Ed., p. 1261.12. Franklin v. Healthsource of Ark., 328 Ark. 163, 942 S.W.2d 837 (1997).13. J-McDaniel, 2014 Ark. 282.14. Act 1116 of 2013.15. English v. Robbins, 2014 Ark. 511.16. Id. at 6-7.17. J-McDaniel, 2014 Ark. 282.18. English, 2014 Ark. 511.19. Id. at *8.20. See, e.g., LaFont v. Mixon, 2010 Ark. 450, 374 Ark. 668 (2010); Ark. R. Civ. P. 68.21. Tripcony v. Ark. Sch. for the Deaf, 2012 Ark. 188, 403 S.W.3d 559.22. Act 649 of 2003.23. Nowicki v. Pigue, 2013 Ark. 499, 430 S.W. 765; Davis v. Parham, 363 Ark. 352, 208 S.W.3d 162 (2005).24. J-McDaniel, 2014 Ark. 282.25. Id.26. English, 2014 Ark. 511.


TSCHIEMERLEGAL BRIEFING

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Robert Tschiemer is the author of the Arkansas Bar Weekly Case Summaries,

available at www.arkbar.com.

For a complete list of decisions see www.tschiemerlegalbriefing.com

Robert S. TschiemerArk. Bar 84148

P.O. Box 549Mayflower, AR 72106-0549

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From the ordinary to the most complex, no appeal is too small or largeWriting Briefs to the Arkansas Court of Appeals, the Arkansas Supreme Court, the Federal Circuits and the United States Supreme Court


Retirement Planning for Lawyers:

Why You Should Consider a Retirement Plan for Your Firm

Retirement plans are complicated and expensive, right? Why would

I consider a 401(k) plan for my small firm? Aren’t retirement plans

only for large law firms? Can’t I just contribute to an IRA or a SEP and

avoid the hassle of a “real” plan?

Melanie Strigel (pictured left) is an attorney with Overbey, Strigel, Boyd & Westbrook, PLC where her practice focuses on retirement plans, employee benefits, and tax planning for both businesses and individuals. Tom Overbey (pictured right) is also with the firm and his practice focuses on tax planning. Tom is the State Chair for the American College of Trust and Estate Counsel.

In our representation of attorneys and other service profes-sionals, we have found that questions like these are common. In fact, the answer is that a tax-qualified retirement plan can provide substantial retirement benefits for attorneys and law firm employees at an affordable cost to the firm.

This article will explain how a retirement plan can be a cost effective option for all attorneys, regardless of firm size. Contributions made to the plan are tax deductible to the law firm, thus reducing the firm’s current tax liability. While held in a retirement plan, earnings on the amounts contributed accumulate tax-free until withdrawn. In addition, funds in a retirement plan are protected from creditors both inside and outside of bankruptcy, unlike funds in a regular after-tax sav-ings or investment account.

By Melanie J. Strigel and Tom Overbey


The effect of tax-free accumulation of earnings is significant and often overlooked. Deferring tax on investments provides at least two benefits. The first benefit is tax-free growth. Instead of paying tax currently on earnings, the investments can grow unhindered and tax is paid at a later date. The second benefit is that, with a retirement plan, the investment is typically made when the attorney is in full-time practice and making a higher income (and is in a higher marginal income tax rate) than when the funds are withdrawn in retirement.

The following chart illustrates the significant effect on savings of tax deferral. The chart shows the effect of annual $10,000 investments over a 30-year period, with an assumed growth rate of 8% and a 30% mar-ginal federal and state income tax bracket. Investment in a tax-deferred account such as a qualified retirement plan would result in a balance of $1,223,459 ($946,421 after taxes are paid on the earnings) compared to $778,355 in a taxable savings or investment account. The chart also shows the projected variance after different periods of time. Although the most significant growth would occur if plan contributions begin at an earlier age, significant growth can occur over a shorter period if one should begin plan contributions at an age closer to retirement.

What Can I Contribute to a Retirement Plan? The current rules governing retirement plans provide generous

contribution limits and flexible techniques to structure plan con-tributions to accomplish attorneys’ goals. A properly designed plan can provide attorneys the opportunity to save for retirement and also offer a valuable benefit to employees that can help with attracting and retaining qualified staff—all at a small cost to the firm.

This article focuses upon the most generally applicable type of retirement plan for a small law firm—a “cash or deferred” or “401(k)” plan.1 This type of plan permits attorneys and employees to elect to contribute a portion of their pay to the plan on a pre-tax basis rather than receiving it as taxable compensation. Deferring compensation to the plan postpones state and federal income tax on the deferrals and also permits the deferrals to grow on a pre-tax basis in the plan. The law firm employer can also make contributions to the plan by “matching” the employees’ contributions and by contributing addi-tional amounts as a discretionary contribution. A 401(k) plan can be established by a firm using any organizational form, whether a pro-fessional association (C Corporation or S Corporation), professional limited liability company or partnership, or general partnership.

There are limits to the amounts of compensation that can be con-sidered and the amounts that can be contributed to a 401(k) plan. We will provide more detail about these rules in the following sec-tion. But first let’s look at the savings opportunities that a plan can provide. Following are illustrations of possible retirement plan designs

that could be used for firms of various sizes and for attorneys of differ-ent ages. These illustrations show the benefits available for attorneys compared to the cost for contributions for staff. In all examples, the contributions satisfy all required contribution limits and discrimina-tion testing and are deductible by the firm.

Example 1: Law Firm A

2 attorneys (both partners,2 ages 46 and 37)1 assistant (age 30)

Law Firm A is a professional association with two partners.3 The older partner, age 46, would like to make the maximum permissible contributions to a plan, while the younger partner, age 37, would prefer to have higher take-home income due to family financial con-siderations. The firm employs one assistant, age 30. As shown below, a plan can be designed to achieve the attorneys’ objectives.

In this example, the partners each accomplish his or her objec-tive. Partner 1 can have the maximum permissible contribution of $53,000 to the plan, Partner 2 does not have to contribute any amounts to the plan, and the firm cost is only $1,500 for their assis-tant, in addition to providing the assistant the opportunity to make salary reduction contributions to save for retirement. The partners can decide each year whether or not to contribute to the plan, so Partner 2 can begin contributing at any time and in amounts that are appropri-ate for his financial situation. The contribution for the assistant will be determined based upon discrimination testing.

Example 2:Law Firm B

3 attorneys (2 partners ages 66 and 52, and 1 associate, age 35)2 assistants (ages 58 and 42)

Law Firm B has two partners who are at or nearing retirement age who would like to make maximum permissible contributions to a retirement plan ($59,000 for those over age 50 and $53,000 other-wise). The firm has an associate who would prefer not to reduce salary to contribute to a plan.

Individual Compensation Employer Contribution (includes 3% Safe Harbor for Assistant)*

Employee Salary Reduction Contributions**

TotalContribution

Partner 1(Age 46)

$220,000 $35,000 $18,000 $53,000

Partner 2(Age 37)

$180,000 $0 $0 $0

Assistant(Age 30)

$30,000 $1,500 $0 $1,500

Totals: $36,500 $18,000 $54,500

Total Cost for Nonpartners

$1,500 $0

* Safe Harbor 401(k) Plan using the 3% contribution safe harbor (for NHCEs only) and a cross-tested employer profit sharing contribution, as further described below. $53,000 is the maximum contribution limit in 2015.** Salary reduction amounts are contributed by the employees as salary reduction contributions so they are not an expense to the firm. $18,000 is the legal salary reduction limit for a person under 50.


This example shows that Law Firm B’s two partners can each receive the maximum permitted total contribution of $59,000 for the year (combination of $118,000 for the partners), with a total firm contri-bution cost for the associate and two assistants of only $11,000. This means that approximately 88% of the total employer contribution cost for the plan will benefit the partners. If Law Firm B uses a productivity-based compensation method for the associate that charges the cost of the associate’s plan contribution against his or her pay, the total firm plan contribution cost would only be $3,960 for the two assistants. In addition, the plan offers the nonpartners the opportunity to reduce their pay on a pre-tax basis and contribute to their own retirement savings. In this example, both assistants have made salary reduction contributions.

Example 3:Law Firm B (same census)

If the partners in Law Firm B do not wish to make maximum contri-butions, they can still achieve significant retirement savings. The illus-tration below shows the contributions if the plan uses the 401(k) safe harbor contribution formula of 3% of compensation for all participants (discussed in the next section) but without any additional employer profit sharing contribution.

In this example, the two partners can each make the maximum permitted salary reduction contribution of $24,000 for the year, and each will also receive a 3% employer contribution of $7,950, for a total contribution of $31,950 for each. The firm’s total staff contribu-tion cost is only $7,500, or only $2,700 not counting the associate.

Example 4:Law Firm B

(with variation in salary deferral amounts)

The 3% contribution safe harbor method is more efficient for Law Firm B than the matching safe harbor method (discussed in the next section) because the firm’s assistants participate in the salary deferral option. This is frequently not the case. Following is an illustration of the possible contributions for Law Firm B using the matching contri-bution safe harbor method, and assuming lower staff salary reduction contributions.

In this example, the partners of Law Firm B again make maximum salary reduction contributions of $24,000 each, plus each receives a 4% matching safe harbor contribution of $10,600, for a total contri-bution of $34,600 for each. The only staff cost is a $2,120 matching contribution for Assistant 1.

These illustrations of possible plan contributions show how a plan can be structured to best accomplish attorneys’ retirement objectives within the context of the firm’s situation. But, even though a retire-ment plan can offer a flexible means for an attorney to save for retire-ment with affordable costs for staff contributions, what about all the rules that apply to 401(k) plans and the cost involved to maintain and administer such a plan? Won’t these expenses offset the savings?

What Rules Must the Firm Follow?It is true that many rules apply to qualified retirement plans.

However, as shown above, these rules are flexible and permit law firms to customize a plan to suit the attorneys’ goals.

The Internal Revenue Code sets annual limits on the amount that an individual can contribute to a 401(k) plan by way of salary reduction. For 2015, the maximum salary reduction contribution is $18,000. Individuals who are age 50 by the end of the year can con-

Individual Compensation Employer Contribution (includes 3% Safe Harbor)*

Employee Salary Reduction Contributions

TotalContribution

Partner 1(Age 66)

$265,000 $35,000 $24,000 $59,000

Partner 2(Age 52)

$265,000 $35,000 $24,000 $59,000

Associate(Age 35)

$160,000 $7,040 $0 $7,040

Assistant(Age 58)

$53,000 $2,332 $3,600 $5,932

Assistant(Age 42)

$37,000 $1,628 $2,200 $3,828

Totals: $81,000 $53,800 $134,800


$11,000 $0

* Safe Harbor 401(k) Plan using the 3% contribution safe harbor method and a cross-tested employer profit sharing contribution.

Individual Compensation Employer Contribution (includes 3% Safe Harbor)*


TotalContribution

Partner 1(Age 66)

$265,000 $7,950 $24,000 $31,950

Partner 2(Age 52)

$265,000 $7,950 $24,000 $31,950

Associate(Age 35)

$160,000 $4,800 $0 $4,800

Assistant(Age 58)

$53,000 $1,590 $3,600 $5,190

Assistant(Age 42)

$37,000 $1,110 $2,200 $3,310

Totals: $23,400 $53,800 $77,200


$7,500 $0

* Safe Harbor 401(k) Plan using the 3% contribution safe harbor method and no other employer contributions.

Individual Compensation Employer Matching Contribution*


TotalContribution

Partner 1(Age 66)

$265,000 $10,600 $24,000 $34,600

Partner 2(Age 52)

$265,000 $10,600 $24,000 $34,600

Associate(Age 35)

$160,000 $0 $0 $0

Assistant(Age 58)

$53,000 $2,120 $3,600 $5,720

Assistant(Age 42)

$37,000 $0 $0 $0

Totals: $23,320 $51,600 $74,920


$2,120 $0

* Safe Harbor 401(k) Plan using only a matching contribution of 100% of salary deferrals up to 4% of compensation.


We’ve spent the past 50 years planning for retirement. When did you start planning?

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tribute an additional amount, up to $6,000, as a “catch up” salary reduction contribution, making their maximum salary reduction limit $24,000 for the year.

The Code also limits the overall amount that can be contributed to a plan each year. The maximum permitted total 401(k) plan contribution for an individual (including salary reduction and all employer contribu-tions, whether matching or profit sharing) is $53,000 in 2015, or 100% of compensation if less. This maximum is $59,000 for those over 50 because the $6,000 catch up salary reduction contribution is not counted in the annual limit. To be deductible to the firm, the total employer contribution to a plan for all participants (excluding salary reduction contributions) cannot exceed 25% of total compensation. Under the Code, the maxi-mum amount of compensation that can be considered for an individual for retirement plan purposes is $265,000 in 2015. The examples demonstrate that these limits per-mit generous contributions.

A 401(k) plan cannot discriminate in favor of highly-compensated employees (“HCEs”). For 2015, an HCE is an individual who is a 5% owner of the employer sponsoring the plan or who has earned more than $120,000 in 2014. In order to prove that it is not dis-criminatory, a 401(k) plan must pass special tests to check the level of salary reduction contributions and matching contributions for HCEs compared to nonhighly-compensated employees. If a regular 401(k) plan fails these tests, the employer must make an extra con-tribution to the plan or return some of the deferrals of HCEs. In some cases, the plan must also pass discrimination tests for the employer profit sharing contributions.

This may sound complicated, but in prac-tice there are a variety of techniques to use to automatically satisfy the discrimination requirements. One option is to adopt a “safe harbor” method of satisfying the 401(k) dis-crimination rules, such as illustrated above for Law Firms A and B. The benefit of a safe harbor 401(k) plan is that the employer does not need to perform the discrimination tests on an annual basis. Consequently, any HCEs, subject to certain limitations, may contribute the full 401(k) plan annual dollar amount without regard to the amount any non-highly-compensated employee defers.

There are two commonly used 401(k) safe harbor methods. The first requires an employer contribution of 3% of pay for all

eligible employees. The second requires an employer matching contribution of 100% of a participant’s salary reduction contributions to the first 3% of pay and 50% of salary defer-ral contributions up to the next 2% of pay. The effect of this formula is that a participant must defer at least 4% of pay in order to receive the full contribution. Thus, for sim-plicity, many employers choose to offer a safe harbor matching contribution of 100% of a participant’s salary reduction contributions up to 4% of pay. The “cost” for using a safe harbor method is that safe harbor contribu-tions of either type must be 100% vested immediately and they must be made even if the employee works less than 1,000 hours during the year or terminates employment during the year.

Both types of safe harbor plans can also provide for additional matching contribu-tions that are exempt from testing if they meet certain requirements. These additional matching contributions can require employ-ees to work for a certain number of years in order to become vested in the contributions. A commonly-used vesting schedule permits employees to vest over a six-year period, so that the employee is 20% vested in his or her plan accounts after two years of employment and earns an additional 20% vesting after each successive year, becoming 100% vested after six years. If the employee terminates employment before becoming fully vested, he or she is only entitled to the vested percent-age of the accounts. The nonvested portion will be forfeited, and the law firm can use the forfeited funds to pay plan administrative expenses, reduce the firm’s contribution to the plan, or contribute to other participants.

A plan can provide for employer contribu-tions in addition to safe harbor contributions. These additional contributions are frequently referred to as “profit sharing” contributions, but they are not contingent upon the firm’s profits. They can be subject to a vesting schedule (as described for matching contri-butions), and can be contingent upon the employee’s working more than 1,000 hours in the year and being employed on the last day of the year. There is great flexibility in structuring employer profit sharing contribu-tions. If a firm wishes to provide maximum benefits for partners or other attorneys, one method is to use a type of contribution for-mula known as “cross-tested,” as illustrated above in Examples 1 and 2. Such a formula permits a firm to determine how the contri-

butions will be shared and can minimize staff costs. This type of plan will need to be tested each year to verify that the contribution satis-fies discrimination tests; the testing depends upon the ages and compensation of the attorneys and staff in the firm. Other types of profit sharing contributions do not require annual discrimination testing.

A retirement plan is considered “top heavy” if more than 60% of the accounts are held by certain key employees. If a plan is top heavy, the employer must make a special top heavy minimum contribution of at least 3% of each non-key-employee’s pay for those employees who are employed at the end of the year. Many law firm plans become top heavy. As another benefit of using a 401(k) safe harbor method, the 3% contribution safe harbor satisfies the top heavy requirement. Also, a plan that provides only safe harbor matching contributions is deemed to have satisfied the top heavy contribution requirement.

To use a 401(k) safe harbor, the firm must give a written notice to employees before the first day of the plan year. This notice must describe the safe harbor method that will be used. For the 3% contribution safe harbor, the firm can give a “wait and see” safe harbor notice that states that the firm may make the safe harbor contribution for the year. If the firm decides to make the contribution, it must provide a supplemental notice at least 30 days before the end of the year stating that the safe harbor contribution will be made. This supplemental notice can be included in the safe harbor notice for the subsequent plan year. Thus, a 401(k) plan offers a firm flexibility in contributions. Contributions are not required if not advantageous in a particular year.

Isn’t Retirement Plan Administration Complex and Expensive?

Maintaining a tax-qualified retirement plan is not a complex process. With proper guidance, administrative expenses should be reasonable and are not a reason to avoid establishing a plan.

The first requirements are to have a plan document, and then to follow the terms of that document. Plan documents are available in formats pre-approved by the IRS. These forms of documents must be revised for law changes once every five to six years.

Regarding investment of contributions, the plan can either hold all contributions in a pooled trust account in which the trustees


determine investment, or permit participants to have segregated accounts in which they control their own investments. If certain Department of Labor rules are followed, the trustees are insulated from liability for losses that occur in a participant’s self-directed account. Trustees of the plan are subject to the fiduciary duty requirements of the Employee Retirement Security Act of 1976 (“ERISA”).

ERISA contains a preemption rule and a general anti-alienation rule that protect qualified plan assets from the claims of par-ticipants’ creditors, including claims for state and federal taxes. Also, a participant’s interest in a tax-qualified plan is exempt from the participant’s bankruptcy estate.

Participants must receive statements of their accounts, and an annual report, Form 5500, must be filed with the Department of Labor each year. The Form 5500 is filed online, and is a simple form that contains basic plan information. Many accountants handle these administrative requirements for their clients. Another option is to engage a third-party administration firm to handle the requirements.

Does a 401(k) Plan Offer Advantages to a SEP-IRA?

Many small firms have adopted a SEP-IRA4 or a SIMPLE-IRA,5 which are not subject to ERISA and do not have these administrative requirements. Why would a firm consider a 401(k) plan when these plans, that can be set up easily with a bank, broker-age firm, or insurance company, are avail-able? The answer is that, even with the added administrative cost of a 401(k) plan, a 401(k) plan can provide greater contributions toward retirement with a lower staff cost than a SEP or SIMPLE.

There are other considerations as well. Under a SEP, the employer contributes to IRAs on behalf of employees. Employees can-not make salary reduction contributions. The contributions cannot be conditioned on the employee keeping the funds in the IRA and the SEP cannot prohibit withdrawals from the IRA. In contrast, the employer has dis-cretion in structuring withdrawal provisions from a 401(k) plan. By law, salary reduction and safe harbor contributions cannot be with-drawn until age 59½. The employer could choose to prohibit all withdrawals while an employee is still employed, or to limit in-ser-vice withdrawals to hardship circumstances.

This preserves the aspect of the plan as pro-viding a retirement benefit for employees.

In addition, SEPs and SIMPLEs have required participation and contribution requirements. A 401(k) plan has flexibility in eligibility provisions. For example, part-time employees can be excluded. The contribution options described in the examples above are not possible in a SEP or a SIMPLE.

ConclusionAttorneys, regardless of practice size,

should investigate the options that a retire-ment plan may provide to save for retire-ment. Tax incentives for attorneys and the law firm, combined with creditor protection for assets and a reasonable cost to maintain a plan, make sponsoring a retirement plan an attractive option. A retirement plan offers an affordable benefit that can attract and retain qualified staff for a firm, in addition to offer-ing valuable retirement benefits.

Endnotes1. Because the purpose of this article is to illustrate possible retirement plan options, we have omitted specific citations to the Internal Revenue Code and also omitted technical explanations of many of the tech-niques discussed in the article. The article outlines general principles only. Readers should discuss these options with their tax advisers, as results will vary depending upon an individual’s or firm’s specific situation. 2. The term “partner” refers to an owner in the firm, whether a shareholder of a pro-fessional association, member of a limited liability company, or partner in a partner-ship. Compensation for purposes of plan contributions is based upon W-2 compensa-tion plus the amount of 401(k) deferrals and other nontaxable benefits such as cafeteria plan contributions, or upon net earnings shown on Schedule K-1, whichever is appli-cable for the attorney. 3. Individual partners in a partnership in many cases do not have the flexibility to determine the level of contributions to a plan as illustrated in this example. Other techniques can be used to accomplish the objective, however, such as having the part-ners individually incorporate.4. “Simplified Employee Pension” under Internal Revenue Code Section 408(k).5. “Savings Incentive Match Plan for Employees” under Internal Revenue Code 408(p).

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A Tale of Two

Arguments:

By Danielle Weatherby

Danielle Weatherby is an assistant professor of law at the University of Arkansas School of Law.

In August 2013, I moved to Fayetteville to join the faculty at the University of Arkansas School of Law from New York, where I prac-ticed labor, employment and education law for seven years. In the context of my law practice, I advised clients, and I now write, about laws governing the fair and equal treatment of LGBT individuals. So, naturally, I was intrigued to learn of several legal developments in Arkansas affecting the LGBT community. Not only was same-sex marriage litigation percolating its way through the Arkansas courts, but my new hometown was considering adopting a local ordinance that prohibited employers, businesses, and landlords from discriminating on the basis of gender identity, gender expression, and sexual orientation.

For gay marriage, the issue brought added excitement and suspense when both the highest court in the state and a federal district court scheduled arguments on the same day concerning whether same-sex couples had the right to marry.

I. Morning Arguments at the Arkansas Supreme CourtOn a frosty morning in late November, I sat in the back of a hushed

courtroom at the Arkansas Supreme Court among dozens of other legal enthusiasts. Many of them were the same-sex plaintiffs personally affected by the outcome of the day’s proceedings.

As I pondered the fact that the Court was about to consider one of the great civil rights issues of our era, into the courtroom walked Jack Wagoner. The folksy, charismatic, and crisply dressed Little Rock-based lawyer leaned casually against the appellees’ table, his snow-white hair glistening against the backdrop of the crimson and leather-appointed round chamber. He waited to make his presentation to the seven justices who would decide his clients’ fate. The question of the day was whether the Court should uphold Circuit Judge Chris Piazza’s decision in Wright v. Smith,1 declaring the Arkansas ban on same-sex marriage (“Amendment 83”) unconstitutional.

Same-Sex Marriage in the Arkansas Courts

and the Fayetteville Fairness Ordinance


A. Appellants’ Argument After the clerk called the case, coun-

sel for the state approached the podium, clearly conscious of his duty to the public. “This is a case about change—about who decides, whether and when and how to effectuate change—seven justices of the Arkansas Supreme Court or over 700,000 voters of Arkansas,” Colin Jorgensen pro-claimed. He urged the Court to defer to the voters on this issue. Justices Corbin and Danielson interjected with a flood of ques-tions about the inherent tension between Amendment 83 and conflicting expressions of “due process” and “equal protection” in the Arkansas Constitution’s declara-tion of rights. Jorgensen argued that the voters’ adoption of the same-sex marriage ban, which came subsequent in time to the declaration of rights, amended the state constitution in a fundamental way and was now the state’s “supreme law.” He insisted that the voters are empowered to amend the Constitution by the Constitution itself, as expressly stated in Article 2 § 1.2

When Justice Goodson asked whether Amendment 83 violated the right to pri-vacy, Jorgenson made a sharp distinc-tion between laws like the statute at issue in Jegley v. Picado,3 which criminalized sodomy between same-sex couples, and Amendment 83. The former, he argued, granted the government an unconstitu-tional “invasion into the bedroom” and intruded upon inherently private behavior, while the latter simply preserves the status quo. Here, he explained, the plaintiffs ask not that the government cease from interfering in their private lives but instead that it act to publicly recognize their rela-tionship. This response invited a flurry of questions from the panel, during which Jorgenson had to concede that his time had expired and promptly sit back down.

Counsel for the city clerks took issue with the appellees’ reliance on Loving v. Virginia,4 claiming that bans on inter-racial marriage are distinguishable from bans on same-sex marriage. He claimed that the fundamental right to marry was originally founded in the common law of England, and interracial marriage, unlike same-sex marriage, had never been banned in England. He insisted that the plaintiffs were trying to “change the pool” of who’s eligible to marry—a “long-held, deeply rooted tradition.”

B. Appellees’ ArgumentWhen it was his turn, Wagoner

made his way up to the podium, seemingly in a rush to rebut the state’s case. He dramatically unrav-eled a two-foot scroll of paper, a long list of the 50-plus decisions across the country declaring bans on same-sex marriage unconstitutional. With the lengthy scroll held high in his left hand, he held up in his right a pint-sized, two-inch scrap of paper, the “short-list” of the three instances in which courts had upheld bans on same-sex marriage. The list included cases decided by courts in Louisiana and Puerto Rico, which Wagoner later jokingly referred to in the press room as “foreign countries.” The visual imagery was compelling and served as a legal testament that same-sex marriage is spreading like wildfire across the country. This set the “everyone else is doing it, so we should too” tone for the morning’s arguments.

Wagoner equated the Sixth Circuit’s recent 2-1 decision to uphold a ban on same-sex marriage to Arkansas Governor Orval Faubus’ infamous defiance of the Supreme Court’s unanimous decision dictat-ing desegregation in the Little Rock School District. Wagoner implored the Court to “be on the right side of history.” Marriage equality is “happening whether we like it or not,” and none of the state’s justifications (procreation, preserving the institution of marriage) justify denying same-sex couples equal protection of the law.

Justice Goodson asked how a favorable decision for the same-sex plaintiffs would affect challenges to statutes criminalizing bigamy and incest. But, Wagoner pointed to rational reasons (the bilateral nature of marriage and health concerns) to differen-tiate those circumstances. Justice Corbin asked whether Amendment 83 would be upheld if reviewed under rational basis scrutiny. Wagoner attempted to cite sci-ence that debunked the state’s assertion that traditional marriage is somehow better for children. When he was unable to locate the science in an amicus brief, Wagoner sheep-ishly confessed, “After 25 years of practice, I’m still nervous in front of you guys.” Justice Corbin chuckled and admitted, “We are just as nervous as you are on this side!” This playful banter between Wagoner and

the panel solidified the feeling in the court-room—Wagoner was in his element. Finally, when asked whether the people can amend away federal constitutional rights, Wagoner posed a hypothetical. What if the people voted to amend the Constitution to require “everyone to join the Baptist Church?” Counsel admonished, “you just can’t amend away my constitutional rights.”

Despite the growing body of federal prec-edent suggesting that Amendment 83 is unconstitutional, the arguments that morn-ing took a surprising turn to the state law constitutional issues. The Court’s focus led me to believe that it could issue an unprece-dented state law ruling that could hold a por-tion of the state constitution unamendable.

If the Arkansas Supreme Court declared Amendment 83 unconstitutional on state constitutional grounds, the question would end there. Same-sex couples in Arkansas would be able to marry, and Arkansas would recognize same-sex marriages performed in other states. One argument down, one to go.

II. Afternoon Arguments at the Eastern District of Arkansas

Three hours later, I was driving across downtown Little Rock to the federal court-house. Wagoner and Maples would now face Eastern District of Arkansas Judge Kristine Baker, in Jernigan v. Crane,5 a separate but substantially similar case, in which a differ-ent group of same-sex plaintiffs challenged Amendment 83 on federal constitutional grounds.

Arkansas Supreme Court


The federal courtroom, massive, formal, and imposing, was starkly different than the intimate chamber at the Arkansas Supreme Court. As I tried to find comfort in a rigid, wooden bench in the back of Judge Baker’s granite-lined courtroom, I recalled the morning’s lush and cozy seats.

A few minutes later, Wagoner and Maples entered the courtroom, and all eyes were on them. The observers clapped their hands together in gratitude, sounds of acknowl-edgement and thanks for the morning’s suc-cessful performance.

A. Plaintiffs’ CaseWith several pending motions on the

docket, Judge Baker consolidated the issues and asked Wagoner to present the plain-tiffs’ arguments. With the aid of a CLE-style Powerpoint, littered with large block quotes, pristinely Bluebooked citations, and color graphics of same-sex couples, Wagoner nervously clicked through 88 slides. He walked the Court through a history lesson of the Supreme Court’s recognition of the right to marry. While I questioned whether Wagoner’s approach was appropriate for a federal judge, I wanted to believe that it was carefully calculated and well-thought-out. What followed was an hour and a quarter soliloquy, as Judge Baker listened patiently without interrupting. When Mr. Wagoner turned around to sit back down, there was an audible sigh of relief in the air.

Then it was Ms. Maples’ turn to make her final plea. She spoke briefly and fervently to Judge Baker about her clients’ denial of equal protection. Maples reported that just yesterday, a man died, his husband now the first widow from the group of same-sex couples married during the time before Judge Piazza’s decision was stayed. Because his status was in legal limbo, the surviving husband was not protected by state law and could not claim his husband’s body. Why should he be denied the fundamental right to have the same protections as heterosexual couples, simply because of his sexual orienta-tion? “It’s time for these people to live their one life in happiness,” Maples concluded.

B. Defendants’ Case Substantively, given the flood of federal

decisions declaring bans on same-sex mar-riage unconstitutional, there is no question that the State had the uphill legal battle. Assistant Attorney General Nga Mahfouz’s

argument primarily drew on two precedent cases. She argued that Windsor’s6 holding was narrow, standing only for the proposi-tion that the federal government cannot impose its own definitions on the institu-tion of marriage and that the question is left up to the states. Mahfouz first relied on the Supreme Court’s dismissal of the Minnesota Supreme Court’s decision in Baker v. Nelson, upholding a state law that limited marriage to persons of the opposite sex.7 Mahfouz argued that Baker bound the Court because it was a decision “on the merits” that is still controlling precedent. Mahfouz also cited the 2006 Eighth Circuit case, Citizens for Equal Protection v. Bruning, in which the Circuit upheld a Nebraska ban on same-sex marriage.8 Arguing that Bruning was “completely dispositive of the issues here,” Mahfouz claimed that Bruning rejected the argument that same-sex marriage is a funda-mental right.

Wagoner forcefully countered that the Supreme Court summarily dismissed Baker without adjudication for “want of a sub-stantial federal question.” There have since been important doctrinal developments that supersede Baker, including the deci-sions from the Second, Fourth, Seventh, Ninth and Tenth Circuits declaring simi-lar bans on same-sex marriage unconstitu-tional. Wagoner cited Justice Ruth Bader Ginsburg’s remarks during the 2013 oral argument in Hollingsworth v. Perry: “The Supreme Court hadn’t even decided that gender-based classifications get any kind of heightened scrutiny. And the same-sex intimate conduct was considered criminal in many states in 1971, so I don’t think we can extract much in Baker v. Nelson.” Wagoner ended by distinguishing Bruning because the Bruning Court did not address whether there was a fundamental right for same-sex couples to marry.

Upon completion of Wagoner’s argu-ments, Judge Baker reserved judgment. Then, the clock began to tick, and dozens of same-sex couples were waiting anxiously for a decision.

III. The Take-AwayGiven the high stakes for the plaintiffs,

as theatrically played out in court, Wagoner and Maples effectively captured the real-life impact of the issue. In contrast, attorneys for the state were relegated to procedural and impersonal institutional arguments.

Ultimately, Wagoner and Maples emerged from their day in court as Arkansas’ modern-day legal heroes, champions of LGBT rights, who could both articulate the most sophis-ticated nuances of the constitutional legal arguments and, at the same time, joke with the seven justices of the Arkansas Supreme Court.

IV. Civil Rights in FayettevilleTwo-hundred miles northwest, the city of

Fayetteville has been engaged in an equally important and divisive debate over whether to adopt a local ordinance prohibiting dis-crimination on the basis of gender identity, gender expression, and sexual orientation, among other categories. This past summer, the city council voted Chapter 119, affec-tionately dubbed the “Fayetteville Fairness Ordinance,” into the City Code during an all-night public meeting. Shortly thereaf-ter, opponents of the ordinance gathered enough signatures for a referendum, and the question of whether to repeal Chapter 119 was put to a vote during a special election.

On December 9, 2014, the residents of Fayetteville voted by a 4% and 500-vote margin to repeal Chapter 119. While at first glance the loss seems dismal, the voter turn-out was one of the highest in recent history, with over 14,500 Fayetteville voters showing up at the polls. The city-wide debate over Chapter 119 sparked impressive commu-nity involvement on both sides of the issue, indicating that the people of Fayetteville are deeply engaged and care about their city.

As Dr. Martin Luther King, Jr., so poi-gnantly said, “human progress is neither automatic nor inevitable.” His point was that progress does not necessarily happen overnight. This is certainly not the end of the story for civil rights in Fayetteville. The effort to pass anti-discrimination protections for the LGBT community is simply gaining momentum, and I suspect the debate over fairness and equality in Fayetteville will con-tinue into 2015.

ConclusionIt’s an exciting time for civil rights in the

state of Arkansas. On November 25, 2014, in a 45-page decision, Judge Kristine Baker declared Amendment 83 unconstitutional, opining that same-sex marriage is a funda-mental right that did not pass muster under strict scrutiny review. Judge Baker imme-diately stayed her decision pending appeal,


and the case is now being briefed in the Eighth Circuit Court of Appeals.

As of the time I submitted this article, the Arkansas Supreme Court had yet to issue its decision in the state case. Since the oral argu-ments in November, Justice Donald Corbin has retired and newcomers Robin Wynne and Rhonda Wood joined the bench. In light of the change of personnel, with the weight of same-sex marriage still hanging in the balance, there remains uncertainty about which justices will cast votes on the issue and when a decision can be expected.

Ultimately, the Arkansas Supreme Court’s silence may not matter in the long-run. The United States Supreme Court will decide the issue once and for all this term. On January 16th, the Court granted certiorari on four same-sex marriage cases in the Sixth Circuit, paving the way for a historic ruling by the middle of this year. As Wagoner said dur-ing oral arguments at the Arkansas Supreme Court, change may be “happening whether [we] like it or not.”

Endnotes:1. Wright v. Smith, 60CV-2013-2662, Decision by Judge Chris Piazza (3d Div. Ark. May 9, 2014).2. “All political power is inherent in the people and government is instituted for their

protection, security and benefit; and they have the right to alter, reform or abolish the same, in such manner as they may think proper.”3. 349 Ark. 600, 80 S.W.3d 332 (1977).4. 300 U.S. 1 (1967).

5. Case No. 4:13-cv-410.6. United States v. Windsor, 133 S. Ct. 2675 (2013).7. 191 N.W.2d 185 (Minn. 1971).8. 455 F.3d 859 (8th Cir. 2006).

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PASSPORT


For the civil practitioner with both a federal and state litigation practice, years of practicing in both courts brings not only the gray-ing (or, in the author’s case, significant loss) of one’s hair but also a learned appreciation for unique differences found between certain of the Federal Rules of Civil Procedure (FRCP) and the Arkansas Rules of Civil Procedure (ARCP). Many of the differences between these rules are minor; others are quite serious.

Highlighted below are some of the more significant differences found between the Federal Rules of Civil Procedure and the Arkansas Rules of Civil Procedure and the traps for the unsuspecting that spring from them. Though not exhaustive, the rules and traps listed below are intended as a refresher for the experienced attorney and to be shared with new attorneys who, hopefully, can avoid lessons learned the hard way. Of course, this list is no substitute for reading the rules. As a supervising attorney once told me, a new attorney fresh out of law school, “It is amazing the answers you will find if you simply read the rules. Go read them.” Though he certainly was right, a list like the one below may help hammer home the importance of his admonition—especially to a new attorney.

John Keeling Baker, who serves on the Arkansas Supreme Court’s Committee on Civil Practice and is a partner with Mitchell Williams’ Little Rock office, has a litigation practice that focuses on contract disputes, business torts, and class actions.

Traps for Us Attorneys

Not Blessed with a Steel-Trap Mind

Keeping up with the subtle and not so subtle

differences in the Federal and Arkansas Rules

of Civil Procedure is no cake walk and requires

vigilant study.

“It is amazing the answers you will

find if you simply read the rules.

Go read them.”

By John Keeling Baker


Rule 5 - Filing of Responses to Requests for Admission

Under FRCP 5(d)(1), an attorney is pro-hibited from filing written discovery requests and responses thereto until “they are used in the proceeding or the court orders [their] filing.” Ark. R. Civ. P. 5(c) is similar but different in one key respect: Requests for Admission and responses thereto must be filed in Arkansas state court actions, and the result of not doing so can be quite harsh.1

Rule 6 - Computing TimeUnder ARCP 6(a), when computing

deadlines less than 14 days, intermediate Saturdays, Sundays, or legal holidays shall be excluded. Under FRCP 6(a)(1), when computing deadlines in days, intermediate Saturdays, Sundays, and legal holidays are included. Though “legal holidays” under the federal and state systems do not mirror one another (e.g., the birthday of an attorney employed with the state of Arkansas is a legal holiday under Ark. Code Ann. § 1-5-101(a)(11)), both sets of legal holidays are incorpo-rated into each set of rules.2

Rule 7.1 - Corporate Disclosure StatementFRCP 7.1 mandates that nongovern-

mental corporate parties file a disclosure statement with their first filing or request addressed to the court. There is no such requirement in the Arkansas Rules of Civil Procedure.

Rule 8 - Pleading Standard One of the most important differences

between the Federal Rules of Civil Procedure and the Arkansas Rules of Civil Procedure is found in Rule 8(a). FRCP 8(a)(2) merely requires a pleading that states a claim for relief to “contain a short and plain state-ment of the claim showing that the pleader is entitled to relief.” In contrast, ARCP 8(a) requires such a pleading to “contain a statement . . . of facts showing . . . that the pleader is entitled to relief.” The former is commonly classified as “notice pleading,” while the latter is commonly classified as “fact pleading.” Not observing the more stringent fact pleading standard can lead to a bad outcome for the pleader in an Arkansas state court action.3

Rule 10 - Required ExhibitsARCP 10(d) states that “[a] copy of

any written instrument or document upon which a claim or defense is based shall be attached as an exhibit to the pleading in which such claim or defense is averred unless good cause is shown for its absence in such pleading.” The word “shall” in Rule 10(d) indicates that compliance with the rule is mandatory and that not complying with ARCP 10(d)’s requirement may contribute to an undesirable outcome for the claimant.4 The Federal Rules of Civil Procedure do not mandate the attachment of any exhibit to a pleading.

Rule 15 - Amending a PleadingUnder ARCP 15(a), a party may amend

his pleading at any time without leave of court. It is not so easy in federal court. Under FRCP 15(a)(1), a party may only freely amend his pleading within: (1) “21 days after serving it”; or (2) “if the plead-ing is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.” Otherwise, a party “may amend its pleading only with the opposing party’s written consent or the court’s leave.”

Under ARCP 10(c), a state court litigant’s amended pleading may adopt by reference statements in a prior pleading. Such prac-tice is specifically prohibited by Local Rule 5.5(e) of the Local Rules for the Eastern and Western Districts of Arkansas, a rule that also imposes additional filing requirements not found in ARCP. In short, amending a pleading in federal court is often much more cumbersome than amending a pleading in state court.

Rule 26 - Initial DisclosuresFRCP 26(a)(1)(A) mandates the service of

initial disclosures in most civil cases. There is no such requirement in the Arkansas Rules of Civil Procedure.

Rule 26 - Discoverability of Documents in Possession of Retained Expert Witnesses

Often, when a testifying expert is retained, there will be written communications between the expert and trial counsel, and it is not unusual for the expert to create various drafts of his or her written expert report. These sorts of documents are gen-erally afforded protection from discover-ability under FRCP 26(b)(4)(B) and (C). There are no similar protections specifically afforded under the Arkansas Rules of Civil Procedure. An attorney who has a “one size fits all” way of interacting and communicat-ing with retained expert witnesses in both federal and state court actions does so at his or her own peril.

Rules 30, 33, 34 - Commencement of Discovery

Under FRCP 26(d)(1), civil litigants normally may not commence discovery until after their Rule 26(f) conference has occurred. There is no equivalent line in the sand under the Arkansas Rules of Civil Procedure. Generally, depositions may be taken in state court cases anytime after the expiration of 30 days after service of the summons and complaint upon any defen-dant.5 Interrogatories and requests for pro-duction of documents may be served upon a defendant at the same time the summons and complaint are served.6 Interrogatories and requests for production of documents may be served on a plaintiff after a com-plaint is filed.7

Rule 38 - Right to a Jury TrialAnother of the most important differ-

ences between the Federal Rules of Civil Procedure and the Arkansas Rules of Civil Procedure is found in Rule 38. FRCP 38(b) requires a party to make any demand for a jury trial by serving and filing such a demand “no later than 14 days after the last pleading directed to the issue is served.” Typically, the “last pleading directed to such issue” is the answer.8 Woe to the attorney


who really wanted a jury trial but failed to realize the time crunch imposed upon him or her under the Federal Rules of Civil Procedure. Perhaps he or she can hope for the FRCP 39(b) discretion exercised by the Honorable Leon Holmes to empanel a jury even though counsel’s jury demand was made untimely and thus considered waived.9

In contrast, in Arkansas state court, the attorney who really wants a jury trial can file and serve his or her demand “not later than 20 days prior to the trial date.”10

Rule 41 - Voluntary DismissalIn Arkansas state court, a litigant generally

has an absolute right to dismiss voluntarily his or her action “before the final submis-sion of the case to the jury, or to the court where the trial is by the court.”11 No such right exists in federal court after the litigant’s opposing party has served either an answer or a motion for summary judgment.12 In federal court and subject to a few rules relat-ed to unique proceedings, after the litigant’s opposing party has served either an answer or a motion for summary judgment, the liti-gant can only voluntarily dismiss his or her action in one of two ways: (1) obtain a stipu-lation of dismissal signed by all parties who have appeared or (2) obtain a dismissal order (“on terms that the court considers proper”) from the court. Such court-imposed terms can provide for fee and cost recovery and limits on discovery in any re-filed action.13

Rule 45 - Notice of Subpoenas for Documents to be Served Upon Third Parties

Subpoenas seeking only documents from third parties served in a stealth manner are not permitted under either set of rules. However, under ARCP 45(b), the serving attorney must serve such a subpoena “by e-mail, facsimile, or hand delivery on all other parties at least three business days before the subpoena is served on the per-son to whom it is directed.” Under FRCP 45, the serving attorney must merely serve each party with “a notice and a copy of the subpoena” “before it is served on the person to whom it is directed.”14 In short, one can-not move as fast in state court as in federal court when serving a third-party subpoena for records.

Rule 64 - Addition and Withdrawal of Counsel

Addition of counsel in a civil action is gov-erned by Rule 64(a) of the Arkansas Rules of Civil Procedure. Neither the Federal Rules of Civil Procedure nor the Local Rules for the Eastern and Western Districts of Arkansas contains a rule that addresses the addition of an attorney of record. However, when a new attorney wishes to represent a party in a civil action in federal court, he or she is required to file a separate notice of appearance form and serve it on all parties.15

When working with suitcase-carrying out-of-state attorneys, be aware that the substan-tive requirements for a motion for admission pro hac vice differ between federal court and Arkansas state court.16 A motion that fails to address each and every requirement for admission pro hac vice can contribute to a very bad outcome for a client.17

The Federal Rules of Civil Procedure contain no rule that addresses withdrawal of an attorney of record. Local Rule 83.5(f) of the Local Rules for the Eastern and Western Districts of Arkansas provides only that “[n]o attorney shall withdraw from an action or proceeding except by leave of Court after reasonable notice has been given to the client and opposing counsel.”

An attorney’s withdrawal from a state court civil action can be trickier than in a federal court civil action. Rule 64(b) of the Arkansas Rules of Civil Procedure mandates a showing of good cause and a showing of three specific circumstances. Even if an attorney is granted permission to withdraw, his or her failure to fully comply with all aspects of Rule 64(b) can have troubling ramifications and result in protracted litiga-tion.18

Rule 68 - Offers of JudgmentThe major distinction between these rules

is found not in the text of the rules them-selves, but the notes discussing and case law interpreting how they work. Together, they render ARCP 68 a decidedly more potent tool than FRCP 68.

The first difference between FRCP 68 and ARCP 68 has to do with when the cost-shifting provision of the rules is triggered. The cost shifting provision in FRCP 68 has been interpreted to be triggered only in

cases “in which the plaintiff has obtained a judgment for an amount less favorable than the defendant’s offer.”19 In other words, if a federal court defendant successfully obtains a pre-trial dismissal of the action or even a defense verdict or bench trial ruling, it can make no application for costs based on a previously unaccepted offer of judgment it extended under FRCP 68.

Arkansas case law has specifically reject-ed the limiting interpretation of Rule 68 announced in Delta Air Lines and permits an application for costs based on a judgment obtained by a prevailing defendant.20

The second difference between FRCP 68 and ARCP 68 has to do with the meaning of “costs” within the language of the rules. The case law interpreting FRCP 68 has gener-ally held that the “costs” which are subject to the cost-shifting provisions of FRCP 68 are those found in 28 U.S.C. § 1920, unless the substantive law applicable to the par-ticular cause of action expands the general § 1920 definition.21 Costs recoverable under 28 U.S.C. § 1920 are quite limited and include fees charged for the clerk, marshal, court reporter, printing, witnesses, copy-ing, docketing, and court-appointed experts. These costs contribute to a small fraction of the hard costs typically incurred in modern civil litigation. The statute does not reach such things as travel expenses, long distance charges, imaging and duplication charges, AV trial expenses, and expert witness fees.

According to the last sentence of ARCP 68 and its accompanying Reporter’s Notes, the Rule’s definition of recoverable “costs” was amended in 1988 and defined as “reason-able litigation expenses, excluding attorney’s fees.” The Notes state that this amended def-inition of costs “permits assessment of not only those costs authorized by statute, but also reasonable expenses typically incurred in the course of litigation. As a result, expens-es disallowed under Darragh—e.g., meals and lodging—are now available under the amended rule. Attorney’s fees, however, are expressly excluded from the new definition.” No Arkansas case appears to have interpreted the outer limits of the broader definition of costs (“reasonable litigation expenses”) since the Rule’s 1988 amendment. Nonetheless, a litigant can feel confident that the “costs” recoverable under ARCP 68 are significantly


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more expansive than the “costs” recoverable under FRCP 68.

Endnotes:1. See, e.g., Duncan v. Olive, 2014 Ark. App. 152.2. Fed. R. Civ. P. 6(a)(6)(C); Ark. R. Civ. P. 6(a).3. See, e.g., Arkansas Department of Environmental Quality v. Brighton Corp., 352 Ark. 396, 403, 102 S.W.3d 458, 463 (2003).4. See, e.g., Ray & Sons Masonry Contractors, Inc. v. U.S. Fid. & Guar. Co., 353 Ark. 201, 212-216, 114 S.W.3d 189, 196-198 (2003).5. Ark. R. Civ. P. 30(a).6. Ark. R. Civ. P. 33(b); Ark. R. Civ. P. 34(b)(2). 7. Ark. R. Civ. P. 33(a); Ark. R. Civ. P. 34(b)(1); Ark. R. Civ. P. 3(a). 8. Cross v. Phillips, 2006 WL 778607, *1 (W.D. Ark. Mar. 26, 2006).9. Corbin v. Arkansas Best Corp., 2009 WL 707407, * 5 (E.D. Ark. Mar. 16, 2009).10. Ark. R. Civ. P. 38(a).11. Ark. R. Civ. P. 41(a)(1).

12. Fed. R. Civ. P. 41(a)(1)(A).13. See, e.g., Weaver v. Toyota Motor Corporation, 2014 WL 907715 (E.D. Ark. 2014).14. Fed. R. Civ. P. 45(a)(1)(D)(4).15. Section III.A.2.a. of the CM/ECF Administrative Policies and Procedures Manual for Civil Filings (Rev. 3/13/14).16. Compare Rule 83.5(d) of the Local Rules for the Eastern and Western Districts of Arkansas and Rule XIV of the Arkansas Rules Governing Admission to the Bar. 17. See, e.g., Preston v. Univ. of Arkansas for Med. Sciences, 354 Ark. 666, 128 S.W.3d 430 (2003).18. See, e.g., Jones-Blair Co. v. Hammett, 326 Ark. 74, 930 S.W.2d 335 (1996).19. Delta Air Lines, Inc. v. August, 450 U.S. 346 (1981).20. Darragh Poultry & Livestock Equip. Co. v. Piney Creek Sales, Inc., 294 Ark. 427, 743 S.W.2d 804 (1988). 21. Parkes v. Hall, 906 F.2d 658 (11th Cir. 1990).

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On November 21, 2014, the Arkansas Judicial Discipline and Disability Commission announced that an agreed Letter of Censure was issued to Fourth Judicial District, Circuit Court Judge Doug Martin of Washington County, in Commission case #14-180.

On January 16, 2015, the Arkansas Judicial Discipline and Disability Commission announced that an agreed letter of Censure was issued to the Union County District Court Judge, George Van Hook, Jr., of Union County in the Thirteenth Judicial District in Arkansas, for Commission case #13-306, #14-185, #14-251, #14-252, #14-253 and #14-254.

The full press releases can be found online at http://www.state.ar.us/jddc/decisions.html.

Final actions from October 1 - December 31, 2014, by the Committee on Professional Conduct. Summaries prepared by the Office of Professional Conduct (OPC). Full text documents are available on-line either at http://courts.arkansas.gov and by entering the attorney’s name in the attorney locater feature under the “Directories” link on the home page, or also on the Judiciary home page by checking under “Opinions and Disciplinary Decisions.” [The “Model” Rules of Professional Conduct are for conduct prior to May 1, 2005. The “Arkansas” Rules are in effect from May 1, 2005.]

INITIATE DISBARMENT:

COLSON, DONALD W., Bar No. 2005166, of Saline County, Arkansas.On November 21, 2014, Panel A voted an interim suspension and that disbarment

proceedings be initiated by the Executive Director in Case No. CPC 2014-041 on a complaint brought by Sharon Cornice regarding Colson’s representation of her son on a criminal post-conviction matter, based on the panel’s findings of violations of AR Rules 1.3, 1.4(a)(3), 1.16(a)(1), 3.2, 5.5(a), and 8.4(d) and consideration of Colson’s prior disciplinary record. The interim suspension order was filed and effective on December 2, 2014.

PACE, JAMES ROBIN, Bar No. 85123, of Bentonville, Arkansas. On November 21, 2014, Panel A voted an interim suspension and that disbarment proceedings be initiated by the Executive Director in Case No. CPC 2014-015 on a complaint brought by Benton County Circuit Judge Brad Karren and attorney Ted Holder of the Arkansas Securities Department (ASD) based on Pace’s involvement in matters that were part of a civil regulatory suit brought by ASD against Pace and others, including a firm named Nick Lynn Technologies,, Inc., and the panel’s findings of violations

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of AR Rules 1.1, and 8.4(c). The interim suspension order and disbarment suit have not been filed yet as Pace has instead petitioned the Supreme Court to surrender his law license, now pending as Case No. D-14-1110.

REPRIMAND:

WILSON, JIMMIE LEE, Bar No. 73128, of West Helena, Arkansas, in Committee Case No. CPC 2014-027, by Findings & Order filed on October 14, 2014, was reprimanded and fined $2,500 on a complaint by attorney Chet Dunlap for violation of AR Rule 3.4(c), and also additionally reprimanded and fined another $2,500 for his failure to file a response to the Complaint. In assessing these sanctions, the panel stated it considered Wilson’s prior disciplinary record. Wilson failed to pay his 2014 Arkansas law license renewal fee when due by March 5, 2014 (deadline extended from March 1 due to bad weather and clerk’s office closing), resulting in his law license being automatically administratively

suspended until he paid his required renewal fee. As of April 25, 2014, he had not paid his 2014 fee and had his law license reinstated to good standing from its suspension. He also failed to timely pay his law license fee for the years 2004-08 and 2010-13.

On April 17, 2014, while his Arkansas law license was in suspended status, in Poinsett County Circuit Court No. E-92-291 for his client Perry Vann, Mr. Wilson filed two pleadings which were served on Dunlap, attorney for Pamela Tate. On April 22, 2014, Dunlap referred the matter to OPC alleging Wilson was practicing law at a time when his Arkansas law license was in suspended status. According to the clerk’s records, Wilson paid his 2014 fee on May 5, 2014, the same day he signed for certified mail service of the Summons and this Complaint. The Arkansas Supreme Court’s decisions in Chandler v. Martin, 2014 Ark. 219 and Williams v. Martin, 2014 Ark. 210, holding Court Rule VII(C), the automatic administrative license suspension provision upon non-payment of the annual license renewal fee, was unconstitutional and

enforcement was enjoined, was not issued until May 14, 2014, after this Complaint was filed on April 30, 2014.

CAUTION:

DEPPER, ROBERT L., Jr., Bar No. 81046, of El Dorado, in case No. CPC 2014-009, by Findings & Order filed October 15, 2014, on a complaint generated from an appellate file, was cautioned for violation of Rule 8.4(d) and assessed costs. Depper was retained counsel in Columbia County Circuit Court DR-2011-92. He filed a motion to extend time to lodge the record, the order to extend the time was granted, but the order was filed one day beyond the deadline. Depper filed a Motion for Rule on the Clerk, and the Arkansas Supreme Court denied the Motion, ending his client’s appeal. Following a committee panel public hearing, by a 6-1 vote Depper’s conduct was found to have violated Rule 8.4(d). By a 4-3 vote, no violation of Rule 1.3 was found.

HILL, DONALD C., Bar No. 2008105, of Hot Springs Village, Arkansas, in

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Committee Case No. CPC 2014-025, by Findings and Order filed October 2, 2014, was cautioned for his conduct in the representation of Kristin Kuelbs in the matter of Kristin Kuelbs, Donald Hill, and Edwardena Hill v. Kimberly Hill, CA 09-1326. In 2007, Hill moved his sister Kristin Kuelbs to Garland County, Arkansas. His other sister, Kimberly Hill, then filed a Petition to be appointed as guardian for Kuelbs. Hill initially hired attorney Justin

Hurst to represent himself and his wife Edwardena Hill. At some point, he also hired Hurst to represent his sister Kristin. During the case, Kristin was appointed several guardians, including Hill at one point. After being appointed guardian, Hill took on legal representation of Kristin as well. On March 19, 2009, the court appointed Kimberly as Kristin’s guardian after Hill failed to follow the court’s order to have Kristin evaluated.

This appeal was one of five filed by Hill in the guardianship case. The first appeal was from the probate court’s guardianship ruling and other intermediate rulings. The probate court continued to issue orders in the case while the first appeal was pending. The second appeal challenged the probate court’s appointment of Kimberly as guardian and the probate court’s jurisdiction to enter decrees after the first notice of appeal was filed. Both the first and second appeals were submitted simultaneously, and both affirmed the probate court’s rulings. Hill filed a third appeal again challenging Kimberly’s appointment as guardian and the probate court’s jurisdiction to enter three specific orders after the first appeal was filed. The third appeal was dismissed as to the issue of Kimberly’s appointment as guardian. This opinion arose from an issue raised in the third appeal, specifically the probate court’s orders entered on March 26, 2009, April 2, 2009, and April 24, 2009. All five appeals were filed by Hill and/or Justin Hurst on behalf of Hill, his wife, and Kristin. In the October 26, 2011, opinion, the Court of Appeals addressed Hill’s representation of Kristin. In orders of December 23, 2008, and January 5, 2009, the probate court disqualified Hill from acting as Kristin’s attorney because of a conflict of interest. Despite having been disqualified as Kristin’s attorney, Hill persisted in filing pleadings and appeals on Kristin’s behalf. The Court of Appeals found that the notices of appeal in the case were filed in April and September 2009, long after the disqualification orders were entered. The probate court never reinstated Hill as Kristin’s attorney, nor was there any authority by Kristin’s guardian, Kimberly, for Hill to thereafter file appeals on Kristin’s behalf.

HURST, JOSH Q., Bar No. 2004016, of Hot Springs, in Committee Case No. CPC 2014-043, by Consent Findings & Order filed on December 12, 2014, was cautioned on a complaint by Thomas Landis of Lawton, Oklahoma, for violations of AR Rules 1.3, 1.4(a)(3), 1.4(a)(4), 1.16(d), and 8.4(d). Landis employed Hurst, for a $2,500 flat fee, as successor counsel to defend Landis in a lawsuit in Montgomery County Circuit Court; Hurst did not enter

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his appearance or keep Landis properly informed of the status of the case. Landis was forced to travel to Arkansas to check the case file and to employ new counsel as the date for depositions approached. Hurst was slow to provide his Landis file to new counsel and declined Landis’ request for a fee refund. Landis sued Hurst over the fee refund in district court and was awarded judgment for $1,825.00 plus costs.

HURST, JUSTIN B., Bar No. 2005021, of Hot Springs, Arkansas, in Committee Case No. CPC 2014-026, by Findings and Order filed October 2, 2014, was cautioned for his conduct in the representation of Kristin Kuelbs in the matter of Kristin Kuelbs, Donald Hill, and Edwardena Hill v. Kimberly Hill, CA 09-1326.

In 2007, Hill moved his sister Kristin Kuelbs to Garland County, Arkansas. His other sister, Kimberly Hill, then petitioned to be appointed as guardian for Kuelbs. Hill initially hired Justin Hurst to represent himself and his wife Edwardena Hill. At some point he also hired Hurst to represent his sister Kristin. During the case, Kristin was appointed several guardians, including Hill at one point. Hill was later removed by

court order. On March 21, 2008, the probate court entered an order recusing Hurst and his law firm as Kristin’s attorney. Hurst was allowed to continue his representation of Hill and his wife. On April 9, 2009, Hurst and Hill filed a Notice of Appeal on behalf of Hill, his wife, and Kristin, appealing any and all orders entered between March 5, 2009, and April 9, 2009. On September 8, 2009, Hurst and Hill filed another Notice of Appeal, appealing all orders entered in the probate case since April 9, 2009. On September 9, 2009, Hurst and Hill filed another Notice of Appeal, making corrections to the notice filed on September 8.

This fifth appeal in the Kuelbs guardianship case arises from an issue raised in the third appeal, specifically the probate court’s orders entered on March 26, 2009, April 2, 2009, and April 24, 2009. The appellants argued that the orders were entered erroneously and without hearing or notice. The Court of Appeals ruled that it had no jurisdiction to hear an appeal of the April 24, 2009, order as the appeal was not timely filed. The two remaining orders were timely appealed; however the court ruled that the argument was raised for the first time on appeal and the court does


not address such arguments. All appeals in the Kuelbs case were filed by Hurst and Hill on behalf of Hill, Mrs. Hill, and Kristin Kuelbs. In the October 26, 2011, opinion, the Court of Appeals addressed Hurst’s representation of Kristin. Despite having been recused, Hurst persisted in filing pleadings and appeals on Kristin’s behalf. The Court of Appeals found that the notices of appeal in the case filed in April and September 2009 were filed long after the recusal order removing Hurst as Kristin’s attorney. The probate court never reinstated Hurst as Kristin’s attorney, nor was there any authority by Kristin’s guardian, Kimberly Hill, for Hurst to file appeals on Kristin’s behalf.

KING, MICHAEL J., Bar No. 88124, of Hot Springs, in Committee Case No. CPC 2013-065, by Findings & Order filed on October 6, 2014, was cautioned and ordered to pay $1,000 restitution on a complaint by Diane Dodd for violations of AR Rules 1.4(a)(4), 1.16(d), and 8.4(d). In July 2013, Dodd employed King to represent her in a child support matter in Garland County Circuit Court, and paid him his requested full $1,500 fee. Dodd and King went to court for a short hearing on July 15, 2013. Each party was directed to complete financial disclosure forms and the hearing was reset for November 4, 2013. From July 15 into late October 2013, Dodd had substantial difficulty contacting King about her case and approaching hearing. Dodd was finally able to contact King’s wife by telephone and was assured King was going to represent Dodd at the November 4 hearing. Closer to the hearing, Dodd needed confirmation King would be there, or Dodd needed to employ another attorney.

Dodd employed Hot Springs attorney Ben Bancroft to represent her at the November 4 hearing and paid him a $750 retainer. Shortly before the hearing, Dodd was finally able to contact King. He informed her he was unable to give her any fee refund, even if he wanted to. Dodd gave King an opportunity to still represent her. King was asked to call Dodd the next day but did not do so. Dodd proceeded on with Bancroft. Dodd paid Bancroft a total of $1,100 for him to finish her case. Since the November 4, 2013, hearing, Dodd has not been contacted by King, nor has King provided her any refund of unearned fee.

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The Arkansas Bar Foundation acknowledges with grateful appreciation the receipt of the following memorial, honorarium and scholarship contributions received during the period October 10, 2014, through January 15, 2015.

In MeMory of VIrgInIa “gInger” atkInson

B. Jeffery PenceJustice Annabelle Imber Tuck

Mike Wilson

In MeMory of e. J. Ball

Judge John and Barbara Lineberger

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Silas H. BrewerJustice Annabelle Imber Tuck

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In MeMory of JuDge WIllIaM r. oVerton DesIgnateD to tHe JuDge WIllIaM r.

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Susan H. Mayes

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Hayden and Gordon Rather

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Charles Frierson III

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Hayden and Gordon Rather

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Arkansas Bar Foundation Memorials and Honorarium

arkansas Bar Center MeMorIal Wall

In MeMory of MIke HuCkaBay, sr.

Three memorial medallions were given in memory of Mike Huckabay, Sr. from

the following individuals and firm:

Donald H. BaconH. David Blair

David M. DonovanWilliam M. Griffin IIIMichael Huckabay, Jr.

Munson, Rowlett, Moore & Boone, P.A.Edward T. Oglesby

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Fred UrseryRichard N. Watts


William H. BowenWilliam H. Bowen of Little Rock died November 12, 2014, at the age of 91. Bowen was a senior partner in Arkansas’ largest law firm, president of the state’s largest bank, chief executive officer of a

health insurance company and dean of the state’s largest law school, which was later named the William H. Bowen School of Law. He was a friend and adviser to Bill Clinton and managed the governor’s office for a year while Clinton was away running for presi-dent, and also a friend and adviser to Dale Bumpers and David Pryor when they were governors and United States senators.

Bowen served on countless business, profes-sional and civic boards and state and national governmental advisory boards. He was a Navy pilot in World War II, survived a series of training crashes, and he had an extend-ed career in the Naval Reserve. President Clinton appointed him to the Employers Support Committee for Guard and Reserve visiting Bosnia and Germany while chairman of the committee. Also, he was awarded the Secretary of Defense Outstanding Service Medal. He left the Navy and enrolled at the University of Arkansas in 1946 and then in its law school. He graduated from law school in 1949, worked briefly for a Pine Bluff law firm, and then did graduate study in tax law at New York University.

In 1950, he became law clerk to Judge Bolon B. Turner of the U.S. Tax Court in Washington, D.C. and two years later joined the Trial Section of the U.S. Justice Department’s Tax Division as special assis-tant to the attorney general. He tried tax cases in federal district and appeals courts across the South, including Arkansas. In 1954, he joined the Little Rock law firm of Mehaffy, Smith and Williams as a trial tax specialist, switching from defending the government to defending taxpayers. The firm had seven lawyers. It would soon become Mehaffy, Smith, Williams, Friday and Bowen. It is now Friday, Eldredge and Clark and has 85 lawyers.

Bowen became general counsel for the Arkansas Bankers Association and in 1970

Richard C. Butler approached Bowen about succeeding him as president of Commercial National Bank, then the fourth largest bank in Little Rock. He became president in May 1971 and began an aggressive campaign to build the bank. At the age of 72, Bowen became the dean of University of Arkansas at Little Rock School of Law in July 1995. After he stepped down, in 1998, Bowen gave the school’s largest gift in its history, to estab-lish the Bowen Scholars Program. In 1999, the school’s faculty renamed the school the William H. Bowen School of Law.

Early in his legal career, Bowen was president of the Little Rock Chamber of Commerce. He was president of the Pulaski County Bar Association and a member of the Arkansas Bar Association and the Arkansas Bankers Association.

Walls TrimbleWalls Trimble of Little Rock died on November 5, 2014, at the age of 94. He was born in Lonoke, Arkansas, on October 19, 1920. Walls gradu-ated from the University of Arkansas and the University of Arkansas

School of Law in Fayetteville. He was a member of Kappa Sigma fraternity, Blue Key Honorary Society and Delta Theta Phi Law fraternity. His education was interrupt-ed by WWII where he served in the infantry. After the war, he returned to Fayetteville to complete his education in 1947. A fifth generation lawyer, Walls began his practice in Little Rock in 1947 with the law firm of Bailey & Warren. He was recalled to military service during the Korean War, serving in the Judge Advocate General Corp in Japan. He and Eugene Bailey formed the firm of Bailey and Trimble in 1958. He con-tinued to practice in that firm which became Bailey, Trimble, Lowe, Sellars & Thomas until his death. He was a member of the American Bar, Arkansas Bar and Pulaski County Bar Associations and a Fellow in the Arkansas Bar Foundation. During his career he served as assistant attorney general and as a special judge in Chancery Courts on many occasions. His primary law practice was cen-tered on wills, trusts and probate.

Donald Houston SmithDonald Houston Smith, 84, of Pine Bluff died January 1, 2015, at the age of 84. He gradu-ated from Arkansas State University and the University of Arkansas Law School. He was a member of Pi Kappa

Alpha Fraternity, Blue Key Law Review and ROTC. He served in the Army from 1953 to 1956 as a 2nd and 1st Lieutenant in Korea and Japan. His main duty was artillery scout. After graduating law school he prac-ticed briefly in Blytheville, Arkansas, and then moved to Pine Bluff in 1959 where he joined the Reinberger and Eilbott law firm where he later became a partner. He retired from practice in 2001. He was a member of the Arkansas and American Bar Associations and served as president of the Jefferson County Bar Association. He was a Fellow of the Arkansas Bar Foundation. He served as a member of the Arkansas Department of Corrections Board of Directors.

Ralph Rust (Rusty) Wilson IIRalph Rust (Rusty) Wilson II, of Solana

Beach, CA, died December 26, 2014, at the age of 73. Rusty was part of the Lost Class of 1959 at Hall High School and graduated from the New Mexico Military Institute. He spent a semester abroad in Aix en Provence, France, while attend-ing Vanderbilt University, from which he graduated in 1963, and he graduated from Columbia Law School in 1966. Rusty served as law clerk to Justice Paul Ward of the Arkansas Supreme Court and practiced law in Little Rock for 25 years with his great friend and mentor Sam Laser. Rusty is survived by his wife of 38 years, George Ann (Yotter) Wilson. During their careers, George Ann and Rusty traveled through-out the southeastern United States for her work and his. After Rusty’s retirement in 1993, they enjoyed touring the Southwest in their RV and made their home in several places in Arizona, New Mexico, Nevada, and California.

The information contained herein isprovided by the members’ obituaries.

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