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GO TO TRIAL WITH CONFIDENCE. Chapter 1. Introduction to Arkansas Civil Practice
Chapter 13. Pretrial Procedures, Molions and
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Chapter 14. Settlement, ADR and Related Molters
Chapter 2. Inilial Interview and Assessment of Case
Chapter 3. Venue Chapler 4. Parties
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VOLUME 33, NUMBER 3 PUBLISHER
ArkDnsas Bar Association Phone: (501) 375-4606 Fax: (501) 375-4901
on en s
Homcpage: www.arkbar.com E路Mail arkbar@ipa,net
II(KA:-<SAS BAI( ASSOC IATlO:-< -100 \\ \lad"ham little ({(lck, \rkan ..a.. 72201 EDITOR Adriel/lie H. Brietzke ASSOCIATE EDITOR
Features
Sara lAndis EDITORIAL BOARD
David H. Williams, Chair Wiley A. Branton
Going Home To Practice
Thomas M. Carpenter Morton Gitelman James c. Graves Thomas H. McGowan AI Schay
Jacqueline S. Wright OFFICERS President Robert M. Cearley, Jr.
On the Cover: Association President Robert M. Cearley, Jr. at his home in Little Rock. Photograph by Dixie Knight Photography.
President-Elect Louis B. Jones, Jr.
Immediate Past President Jack A. McNully Secretary -Treasurer
H. Murray Claycomb Executive Council Chair Philip E. Kaplan Young lawyers' Section Chair Gwendolyn D. Hodge Executive Director Don Hollingsworth Assistant Executive Director Judith Gray
EXECUTIVE COUNCIL J. Ray Baxter Robert M. Cearley, Jr. William M. Clark, Jr. H. Murray Claycomb F. Thomas Curry Thomas A. Daily Thomas F. Donaldson, Jr.
TlU! Arl'unsas lJI1llY" (USPS 546-(40) is published quarterly by the Arkansas Bar Association. l'enodiClls postage paid al LIttle Rock, Arkansas. POSTMASTER: send address changes to TJU! Arkansas Lnwyrr, 400 West Markham, little Rock, Arkansas 72201. Subscription price to non-members of the Arkansas Bar Association $25.00 per year. Anyopinion expressed herein is that of the author, lind not nec:essarily that of the Arkansas Bar Association or l1r~ ArkallsaS UlWyn. Contributions to Th~ Arkmuas LQwyn are wt'lcome and should be sent in two copies to EDITOR, Th~ ArkllllSDS Ul~, 400 West Markham. lillie Rock, Arkano;as 72201 All inquiries regardma advertising ~Id be senl to Editor, Tht Arkansas Lnwyo at the above address. Copyright 1998, Arkaffiils 8.:lr Association. All righlS reserved.
10
Finding Your Niche in Private Practice by uumia Davis Stadter
II
Show Me The Money... Not! (So Fast) A Primer for Defending Attorneys Fee Petitions by Patricia 1. Hays
18
Barbarians at the Gate: Image, Ethics and The Unauthorized Practice of Law by Brad Hendricks
32
Advisory Ethics 0 inion
40
Editor's Note: Vol. 33, Number 2, Spring 1998 of The Arkansas Lawyer featured on the cover four law students lrom the UALR School ot Law. They are, from left to right: Bryan Achorn, Jenniter Owens, Knsty R. Bnetzke and Derek Smith.
Lynn M. Flynn
Ron D. Harrison Dave Wisdom Harrod Gwendolyn D. Hodge Alire L. Holcomb Don Hollingsworth Louis B. Jones, Jr. Philip E. Kaplan Knox B. Kinney Thomas o. Ledbetter Jack A. McNulty Michael W. Mitchell Harry Truman Moore Charles C. Owen Brian H. Ratcliff Steven T. Shults James D. Sprott Carolyn B. Witherspoon
by Al Schay
Robert M. Cearley, Jr.: A Study in Professionalism by Adrielllle Brietl1<e
26
In Every Issue PRESIDENT'S REPORT,
by Robe" M. Cearley, 11:
ASSOCIATION NEWS
by 0011 HollillgslVorth by SWilley R. Rallis alld Frederick R. Spellcer
EXECUTIVE DIRECTOR'S REPORT, LAW OFFICE TECHNOLOGY, CLE CALENDAR
YOUNG LAWYERS SECTION REPORT,
by GlVelldalyll D. Hodge
2 3 4 8 24 38
LAWYER ADVISORV OPINIONS
40
JUDICIAL ADVISORY OPINIONS
42 43 51
LAWYER DISCIPLINARY ACTIONS
IN
MEMORIAM
CLASSIFIED ADVERTISING/INDEX TO ADVERTISERS
52
1ll'I'sidt'nt's Rl'plll't
Promote and Adhere to the Highest Standards of Professionalism by Robert M. Cearley, Jr. As lawyers we are in many ways a privileged group. We are well educated, our work is intellectually challenging and financially rewarding, and we have the opporruniry (0 help people solve serious problems. onerheless there is growing evidence that many of us are unhappy, unfulfilled, and dissa[isfied wi<h [he qualicy of our professional lives and that the public has lost respect for our profession. Whar can we do? I believe the best answer we can give to our critics is ro be the very best lawyers that we can be and ro promoce and adhere (0 the highest standards of professionalism. L.1wyers are nor just legal service providers. The practice of law is not a business. The ride, "Anomey and Counselor At Law" should remind us of OUf role. We muSt remember that the practice of law is not a popularity COntest. We will never be popular, bur we can regain the respect that we have lost, if we: earn it. 'When we practice as uue professionals we advance not only our clientS' goals but those of the profession as well. When we mUSter our very best efforts on behalf of our clients, when we use all of the knowledge and skill that we possess and we do it diligently and with a civility that we expect from others, we will begin ro regain the respect that we have lost. When we innill in our students of the law the highest values of professionalism and teach by our own example, we will begin to regain what we have lost. Every client is entitled to competent and ethical representation. But professionalism embraces much more. First is dedication to ethics and integrity. Ethical rules should not be: a constraint but a commitment that guides our every anion in the practice of law. Some courtS and legal organizations have developed aspirational codes of conduct encompassing not only what a lawyer must or must nor do but whar a lawyer should do and how it should be done.
t Til Irtulil La~Jlr
Ill.ll II.l/S•••lr 19l5
These efTorrs should be applauded. In [his area, our reach should always exceed our grasp. Second is competence and dedication. Clients wall[ and deserve comperence and dedication. But clients also want and deserve independent judgment from their lawyers. Sometimes that means saying, "no." Ambassador Sol Linowin pur it this way:
What makes the lawyer professional is his insistence that in the legal realm he setS the parameters of what he will and will not do---and he tells the client what he believes is in the client's best interest.
Third is civility. Civility is an integral part of professionalism. We need to remember that, "what goes around comes around." The Golden Rule fits into the practice of law JUSt as it does in our daily lives. We are officers of the court and the court should be accessible co us for early intervention in disputes. Judges need to recognize that firm and consistent enforcement of the rules and insistence on civility not only promote the administration of justice. bur enhance the public's perception of the process. The law encourages what ir pennies. Fourth is legal education. ontinuing legal education is not just a requirement, it is a way of life for a true professional. fu
practlc1l1g lawyers we should have more exposure co students in the law schools--they should be cold first hand what is expected of them when they join the bar. Fifth is commitment to improve the justice system and advance the rule of law. Trust and confidence in our courtS is the very foundation of a civilized society. \Y/e need to dedicate oursdves to improvement ofour court system--and there are improvementS we can make. Litigation is tOO slow and too cosdy. Greater resources need to be: allocaced to <he judicial braneh for scaffing and facilities. Ahernare dispute resolution muSt be encouraged. \Y/e are, for the most part, trying cases the same way we did in the horse and buggy days. We should be open to new ideas and embrace modern technology. An impressive coalition of eight national legal organizations, including the American Bar Association. the American Board of Trial Advocates, the Association of Defense Trial Acrorneys, the Defense Research Institute, International Academy of Trial Lawyers, and [he Association of Trial Lawyers of America recently concluded a four year study making recommendations for changes in our civil justice system. Among these recommendations are: limiting jury service to one day or one trialj instructing juries before any testimony is taken, as well as at the close of the evidence; allowing juror questionnaires; and allowing jurors to take notes. Our civil justice system is the envy of the world. Bur the world is changing and we must accommodare change. The independence of <he judiciacy is under political arrack. We members of the bench and bar are in the best position to counter baseless and ill-informed attacks on the courrs and on our judges. We should join together and do so. Sixth is pro bono service. The only thing less popular than a poor person these days is a poor person with a lawyer. The poor have no con5[ituency. Lawyers hold the keys to See Page 5
\ssol'ialion \rlls
Winning Essay in the Arkansas Bar Association Law Day Essay Contest What Is A Lawyer? by Heatb Himstedt A lawyer is by definition a person qualified to offer legal advice to diems and co represclH them in court. Of course that definition is the very basic definition and explanation of what a lawyer is. Lawyers
spend their lives fighting for the well being of their clients and the overall well being of their country. Some will argue that an attorney and a lawyer are different and require different amoums of education. This is actually the furthest thing from rhe truth. In reality an attorney and a lawyer arc [Wo names for the exact same thing. fn this essay I will explain some details of what a lawyer does, qualifications and training required, the need to have a lawyer, and the different services they provide.
Qualifications/Training The training and qualifications of lawyers is rcguJated by each state. Usually, the first step is the completion of high school and at least mree years of college. After college, they take an examination in general scholarship to get into law school. Next, a study at a school of law and sometimes an apprenticeship, or clerkship, for one to two years, in the office of a practicing lawyer. Lastly, to become a lawyer you muSt pass an examination in law before being admitted {Q the bar. Duties of a Lawyer It is the duty of a lawyer to inform his clients as to which laws apply to them and their families, and to make known what can and can not be done under the law. Lawyers must also be effective, clear communicators, able to communicate with individual c1iems, large Ot small companies, cities, towns, or other lawyers. in all cases, lawyers wam their clients to be treated fairly. Lawyers need to know where to find facts and how to put them together at a later time. They must also be good readers, writers, and quick thinkers. Lawyers often have to change people's ideas in order to win the case for their cliems, so they must ask the right questions.
When a Lawyer is Needed According to the Bill of Rights, a pan of the Constitution of the United States, everyone accused of a crime has the right to a fair trial. Lawyers help people maimain a fair trial. First, lawyers meet with c1iems in homes, offices, or jails. They talk about the law and their c1iems' rights. Together the lawyers and their clients decide what to do. Then, lawyers look up laws in law libraries. They find other cases that are similar to their client's case. They put these facts together in a way that best helps their client. Sometimes lawyers raJk to the lawyers on the other side. They may nOt want their client to go to court. So they try to settle the case before this happens. However, when a case goes to court, each lawyer speaks for their client. Each lawyer wants ro win the case for his client. When two (or more) people do not agree about what is right, lawyers help them pur tOgether a fair agreement. Lawyers write everything about this agreement in a contract. The contract becomes a law for these (wo (or more) people to folJow. Sometimes two people still can not agree abom what is right under the law. So, they go to court. In court a judge or jury of many people is asked to decide. One lawyer talks for each side. The judge or jury heatS all the factS from the lawyers. Then rhey make a decision. The people must follow what the court decides. DifferentTypes of Lawyers After lawyers learn about many different laws, they may specialize in one area of particular interest. These lawyers work at only one kind of law such as tax law, environmenrallaw, civil law, construction claims, or criminal law. Lawyers who have specialized practices may work for themselves, large law firms, private businesses, or Federal, state, and local government. Many lawyers do nor specialize. They need to know all types of law. They practice general law and usually work independently or for a law firm.
belief in the judicial system-right or wrong! Therefore. a lawyer can passionately defend a diem that he knows is guilty. They wam the laws to work for you. Lawyers do many things for many people.•:.
Heath Himstedt is a student at Southwest Middle School in Searcy. He received {/ $500 savings bond for his essay which was selected from over 120 entries.
MEDICAL RECORDS REVIEW M.D., J.D. with experience in PI and medical malpractice. Will evaluate cases, locate experts, and provide litigation support.
Call 501-960-7122 lIt'l'l ing \111 in's
EXECUTIVE COUNCIL August 21 & 22 Li ttle Rock, Arkansas
Summary Lawyers tOrally commit themselves to a
fol. n No. I/Solmer 1998 fhe Arkaosas La"Jer I
EWl'utiH' 1IiI'I'I'tol"s RI'pOl't
Endings and Beginnings by Don Hollingsworth LAST
ANNUAL MEETING
OF
FIRST 100 YEARS
SETS
RECORD
Anendance records were shancred at the
100th Annual Meeting of the Arkansas Bar Association. 1,108 lawyers and judges (26% of the membership of the Association) were registered participams. To put this in perspective, the annual meeting of another southern stare bar association, held this summer, achieved a record when 3% of its members attended. (In recent years, ancndance at the Annual Meeting in Hot Springs has averaged 20% of the Association's membership, which is the highest or one of the highest attendance percentages in the U.S.) The reasons so many lawyers and judges annually ancnd this meeting are as diverse as the membership itself. Meeting planners recognize and cater [0 the needs of the Association's eclectic make-up. CLE, networking opponunities, omstanding programs, [Op-flight speakers, relaxation and family time, qualiry emeruinment and of course tradition, are all considerations thar go into designing the program. The Arkansas Bar Association is especially pleased that the Arkansas Judicial Council held irs Annual Meeting in conjunction with our Annual Meeting, which the Council has been doing on alrernate years. As has been true for many years, the Arkansas Bar Foundation held its Annual Meering and Annual Fellows Dinner in conjunction with our Annual Meeting. We are also grarified that other law-related groups and boards hold meetings during our Annual Meering. A feather in the cap of the Association was the recognition of the quality of the
program by C-Span. The June 12th panel feamring three former lawyer governors of Arkansas and the address by Associate Justice Clarence Thomas were aired nation-
ally. I wish every artorney in Arkansas could have been present for the June 12th morning session. In addition to the above were
the presentation by Judge Richard Arnold
TlIr ,lrk;1l1S;ll J,;III.II'r
I'olll !o.l/SllllllOl'r 1998
and the investiture of and remarks by incoming President Roben Cearley, Jr. It was an uplifting and challenging morning for the over 750 at[Orneys in the room, beginning with the outstanding opening remarks of Governor Sid McMath and ending with the call co professionalism by Presidem Cearley. Hats off to Fred Ursery who was program chair of this Cemennial Annual Meeting! He cenainly put cogether an outstanding 4 day program. If you missed this meeting, mark your calendar for June 9-12, 1999. There is no better way to start the next 100 years of the Arkansas Bar Association. New Member Benefit from LEXlS-N.EX.IS Your Association has elHered recently into a Membership Group Agreemem with
LEX1S-N EX1S which will provide our members online legaJ research at reduced rates. Specific information on this benefir will be coming ro all members through the mail and Associarion publications. Special rhanks go to rhe members of our Task Force on Legal Research, Publications and Technology, which is analyzing such benefits for our members. Your Associarion srill has rhe agreemem wirh LOIS for the production of our Systems and Handbooks on
CD-ROM. New Dues Structure The inirial evidence is chat most attorneys in our stare like the new membership dues strucrure. The 1997-98 bar year has ended with a record Association membership or over 4,200 attorneys, which includes former members rejoining our Association. M,any members are renewing rheir 98-99 dues ar the $150 level even though they could have lowered rhe amount through the new income range option. This financial support is important for maintaining the various projects of our Association. Anorher example of this supporr are rhose members who renewed at a lower rate through the income range option and included an additional amount as a contribution or became a sustaining member for the firsr rime.
AJice Holcomb, New Lobbyist Whjle we regret losing Stacey DeWitt ro Atlanta, Ga., we are fortunare to have retained Alice Holcomb as our new lobbyist. Alice is no stranger to this Association, State government or the Arkansas Legislature. She has been an active member of our Association since graduation from the
UALR School of Law in 1984. Alice has served as a Commissioner of the Workers' Compensation Commission, Legal Counsel for Governor Tucker, and the Pulaski County Chancery and Probate Clerk. Among her Associadon work is current service on the Jurisprudence and Law Reform Committee and rhe Task Force on Legal Services. Stacey DeWitt was not only our lobbyist. She had been our media person and had been an outstanding volunteer on many Associarion commirtees. We wish Stacey and her family well in their new endeavors. JudiciaJ Artjde Vote In what is hopefully the beginning of the end, our membership approved the proposed judicial article by a vote of 1389 to 254. Our Association along wirh the Arkansas JudiciaJ Council and others will request the Arkansas Legislature to place the judicial arricle on the general election baHot for November 2000. The media response on the judicial article has been favorable so far. Please remember thar your Senator and Representative may want information on the specifics of rhe judicial article. Anyone may contact this office ro obtain such information as well as a copy of the article. Membership Survey This fall 1,500 members will receive a 4 page survey asking member opinions on a variety of subjects such as technology and member benefits. This is the first membership survey in over 10 years. The 1,500 members will be randomly selected. Your Association intends this to be the beginning of a reguJar program of surveying members on relevant issues facing our pro-
See Page 5
President's Report Continued from Page 2
. :"1
entennla 1
the courthouse and it should be open to everyone, rich or poor. We need to expand our pro bono service. One-half million people in our own stare qualify for legal services---we must do everything in our power to serve rhe legal needs of the poor, from our own pro bono work to demanding that the Congress continue to provide adequate funding for legal services. These are all things that we can do every day as professionals to better serve our clients, the public, and the profession. As an association there is more that we can do. Several task forces will be appointed for the coming year, including a Task Force On Lawyer Admission and Discipline (to assess the ways we admir and discipline lawyers and recommend any needed improvements), a Task Force On The Unaurhorized Pracrice of Law (to look ar unlawful pracrices, as well as the impact of rhe Imernet and changes in the marker place on the practice of law), and a Task Force on Law Office Managemcm Assisrance (ro explore rhe feasibiliry of providing law office management consul ring services to our members). I am a rriallawyer and a solo practitioner, and I am proud of whar I do. I hope that you will join with me in making this a year of professionalism .•:. Executive Director's Report Cominued from Page 2 fession and the Arkansas Bar Association. Due to staffing and budget constraints, most of the surveying will be more informal than the more comprehensive survey this fall. For example, we learned useful information/opinions on 5 issues from about 200 members at the Annual Meeting. If you are one of the 1,500 who receives the survey this fall, please complere it as soon as possible! Only with your cooperation can we gather such information and thereby improve rhe services of your Association. A Personal Note I was blessed, in my first full bar year as Executive Director, to work with Jack McNulcy, the IOOth President of our Association. Both Jack and Montine have made the first half of our Cemennial Year a resounding success. I will always value their advice and friendship.•:.
:.0
WHEN YOU THINK OF
~
THE GREAT ARKANSAS
" ." ~
<ti
g
LAWYERS OF THE PAST
e
~
1898-1998
~v,
100 YEARS•••
oor
WHAT LAWYERS COME TO YOUR MIND?
HELP US WITH YOUR CENTENNIAL CELEBRATION! Now's the time to tell us who or what you know. Jot down your stories or names of those you think deserve recognition and send them to us for possible inclusion in our 1998 Centennial Celebration. The Centennial Issue will be published in November.
r------------------------------,
IYour suggestions:
L
Please send YOllr sllggestions: names to be recogl/ized, stories, al/ecdotes, and al/Y interesting facts from the lasl100 years to Adrienne Brietzke, The Arkansas Lawyer, 400 West Markham, Little Rock, AR 72201 or FAX 501-375-4901 for possible inclllsion in Ollr cenlennial celebration.
\'01. II 10. l/Sommrr 1995 The ,Irkansal Lal\!rr
~
~
ER OF YOUR MEMBERSHIP ••••••••••
For more information about member benefits or programs call Barbara Tarkington (501) 375-4606 or 1-800-609-5668.
ueED COST
The cornerstone of an attorney's professionalism is up-to-date information. The Arkansas Bar Association provides the most comprehensive statewide CLE program, and members pay reduced tuition! Over 20 CLE Seminars are produced annually.
CAR AVIS - for discounts call 800-331-1212 and give them this number, B-314500.
LEGI
You are well-represented on legislative issues affecting the profession and legal system. The Association's lobbyist represents its members' interests in the Legislature.
NTS
Call Rebsarnen at 501-664-8791 for professional liability (5% discount for members) and member group rates for accident, disability and term life.
IN THE ARKANSAS BAR ASSOCIATION /.
MEMBERS RECEIVE A
-e~
SPECIAL D1SCOU T
Ten practice handbooks on CD-ROM from LOIS and in print and disk from this Association. The 1998 version of the Arkansas Form Book is now available. To order, call the Association at 501-375-4606 for print or disk versions or call LOIS at 1-800-364-2512 for CORaM.
• The NewsBulletin • Tile Arkansas Lnwyer • Legislative Summary From the Hill • Guide to Arkansas Statute of Limitations • Annual Membership Directory • The Arkansas Lnw Review • Tile UALR Lnw Journal Brochures on Law-Related Topics are available for members to share with clients or civic groups.
UPS gives Arkansas Bar Association members discounts and quick response time. Call 800-325-7000 and identify yourself as a member of the Arkansas Bar Association, or use account
Call 501-661-5853 or 680-5029 for discounts on services and equipment.
#50000700360. L SYSTEM
The MBNA Platinum Plus MasterCard includes a card with the Arkansas Bar Association logo, no annual fee, miles plus option, a low APR, and travel services. Call 800-847-7378.
The Arkansas Bar Association has historically worked to secure adequate funding of the court system, to revise ou tda ted laws, and to provide needed legal information to the public. Association members do this through the legislative program, Sections and Committees, the Association's Mock Trial Program, Young Lawyers Section's projects, and special studies.
NEW! This Association has endorsed the American Bar Association's program. It offers options, stability, and comprehensive services. Call 800-826-8901 or visit the website at http://abra.ris.ssga.com
LEX
In coming weeks members of the Arkansas Bar Association will be eeing information about the Lexis-Nexis online legal research benefits, which will be provided to Association members at a discount.
Lilli IInin' Tl't'llllnlng)
Have Technological Advances Solved (or Created) Problems? by Stanley R. Rauls though one might question whether technological advances have olved more problems than they have created, twO things seem ccnain -- rhe practice of law has been significantly affccÂŁed by changes in technology. and rhe full impact of change is yct {O be seen. Though any lawyer or firm may have benefitted to varying degrees from the increased resources made available through technology, smaller firms and sole pracririoners seem {O have been rhe major beneficiaries. In the nor roo disram past, access ro a respectable law library was a privilege granted by virtue of firm or court affiliation, geographic location or personal wealth. Today, electronic publishers and ilHcrner providers have reduced (and in some cases eliminated) the need ro make exorbitanr expenditures for printed material. An added benefit is the speed with which legal information is disseminated -- it is almost incomprehensible to those of us trained in a precompurer era. For anyone willing to endure rudimentary training or self-instruction in the use of computer software and Boolean logic (an oxymoron), statutes, regulations, opinions and a wide variety of useful information is instantly available from aJmost every jurisdiction. Information may now be obtained
Jt
faster, less expensively and. in many instances. more reliably because of today's technology. Legal research is not the only facet of a lawyer's daily routine that has been affected by changes in technology as well as in public attitudes. Nor long ago. any lawyer who allowed an answering machine to field telephone calls was likely to miss a cliem or hear obscene messages. Either the attitudes of the general public have changed or they have resigned themselves ro calking ro computers. At any rate, the number of recorded wisecracks and hang-ups seem to have decreased. and voice mail can be an effective way to reduce workload or personnel req Ul remen ts. For the lawyer on the go, a cellular or digital telephone and laprop computer with the proper software and peripheral devices can turn any car or motel room inro an office. When files have been smred electronically, entire case and documem files may easily be transported ro any location without dragging along cardboard boxes and dollies. If the laprop has a CD drive, the firm library may be taken on the road as well. E-mail can be an effective method m communicate with others at far away locations. and electronic files may be transport-
ed across rown or the world much faster than by mail or express carrier. Communicating bye-mail rather than facsimile gives attorneys and clients an advantage when documents received need correction or sllpplemenration. However. security measures or encryptjon should be used for sensitive material sent bye-mail. Once roo unrdiable or cumbersome to use effectively, scanners and rdated soft\vare have made great strides in the past few years. Today, the scanner can save an attorney or support personnel time when responding to discovery requests. using printed forms or amending lengthy documents. With recordable CD drives now avajlable, documents or files may be scanned ontO compact d.isks to reduce storage space needed at the law office as well as decrease time necessary ro retrieve or review dosed files. Needless to say, there is no point in outlining all of the ways that technology can benefit lawyers III today's world. Considering its rapid and constant advancemem, such a list would likely be obsolete when completed. anyway. Suffice it to say, the use of technology is essential to any lawyer's survival in today's information proliferation.•:.
by Frederick R. "Rick" Spencer
First, is the software you are using adequate? As the old adage states, "if it ain't broke. don't fix it!" There is very inexpensive software that the attorney can purchase which is nOt trilly a "verticaJ package" [i.e. created just for attorneys] that seems to be more than adequate for some attorneys. Secondly, you must decide whether you and your staff have the time to sweat through the "learning curve" and learn how to actually use the software. Finally. you must ask if the software you want to purchase is widely used in law offices. Once you have answered these questions to your satisfaction, you are ready to go ahead and "bite the bullet" and purchase the software for your needs. In our firm, we had used Terolaw since
the 1980's. But when the soft\vare's database in our office gOt so large that it rook its final gasping breath in 1994, we found our mat the company was swallowed up by the competition and there were no updates ro fix the problems. They recommended the software packages that I ultimately purchased - Amicus Attorney Pro can reduce your risk of errors and omissions in cases and client matters. It increases your efficiency as well as billable time because of the comprehensive calendaring and "to-do" functions. It has a number of features which 3re essemial to the reduction of law office insurance claims. It can help reduce your risk of facing liability claims by: • organizing your practice better
p;;
ecision regarding which legal software to use on a daily basis can be rusrrating and time-consuming. This is a summary of the software that we use in this firm, but it is just "one lone voice in the wilderness" and not the final authority for your particular needs, unless your goaJs are the same as ours. Our ultimate goal in this large volume practice was and is to have a totally electronic office file for every diem with only a "backup" hard copy of my documents if necessary. \Vle have not reached that goal yer. No marrer what your particular goals in your office, before you purchase any software, you must ask yourself three questions.
s
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101. ~:lllo. ~/Sollllllrl' 1998
• reducing the likelihood of limitation periods being missed warning you of deadlines as they approach reminding you to keep files current keeping an accurate record of what has been done, when, and by whom, in the event of a dispute arising keeping an accurate record of telephone calls, in the event of a dispute arising alening you when it's time to report to your clients reminding you to keep in touch with people • helping you to spot potential conflicts of Interest. What we wanted was a "one-write" package for everything - time and billing, accounring, check writing, statistical anaJysis, phone call journals, conflicts and truSt accounts. In other words, we wanred to have virtually electronic files rather than just hard copies of everything. Although almost all of my fees are contingency in nature and I am the only lawyer in the firm, I wanted to know how I am doing on each type of casesocial security, workers' compensation, personal injury, etc. Amicus Attorney Pro allowed us to do this. But if it is a billable case, you naturally capture more billable time from existing work. This translates into more bottom-line revenue. Am.icus Attorney Pro organizes and streamlines your practice to the extent that some malpractice insurers even reduce the premiums. So let's take a quick look at some of the features of Amicus Attorney Pro.1I1. Its calendar is fully custOmized. It includes support for deadlines, notification of how many days are remaining until each deadline, and "Bring Forward" items to be brought [Q your anention. Of course, limitation-period reminders are built in. The calendar is integrated with the case management tools in the Files module. Every item in the calendar can be cross-referenced to a contact and to a file. You can review lists of events and schedules in either of those modules. In this way, you can set up a schedule of tasks on a particular transaction. Any items you list will be included in the calendar automatically. And any changes you make in one location will be reflected in the other instantaneously. Amicus AttOrney Pro's Daily Repon brings together the many differenct aspects of your practice at the stan of your day. Key matters are brought to your attention. Reminders help you stay on top of things.
Any loose ends from yesterday are flagged. Double-click anything to be taken instantly to the place where you can deal with it. The Daily Report is linked with the "To-Do" list so that your list of reminders is updated constantly as each deadline draws near. Once an item is on the "To Do" list, it is automatically carried forward from day to day until you mark it "Done." The length of time each item has been carried forward is shown on the list, so that you can see the items that are getting stale. If any items are getting stale, you are given a warning on the Daily Report. There is a "Do Someday" list for items that have no fixed date. However, you won't forget these items, because the "Daily Report" will remind you if it has been more than two weeks since you last consulted your "Do Someday" lisr. With Amicus Attorney Pro, you can save transactional checklists as "Precedents." Since you have recorded the appropriate schedule for any type of transaction, you can apply it in each subsequent case to ensure that a necessary step will never be forgotten. The "Precedents" feature is enhanced by the ability to "link" any twO or more items together according to their legal reJationship. For exan1ple, you can set the deadline for filing court documents to be twO days before the hearing date, with a reminder to start preparing those documents a week before and a reminder to report to the client the day after the hearing. If the hearing is rescheduled, all of those dates will be rescheduled with it autOmatically. This ensures that all relevant reminders are in place, and that they will be rescheduled as required. While this is a simple example, it is JUSt as easy for you to establish chains of linked events in a much more sophisticated way, modeling the requirements of any given statute or the Rules of Procedure for any given court. These need only be set up once, saved as a precedent, and then applied any number of times. In this way, all of the necessary legal reminders for given types of transactions or cases can be set up and are readily accessible. You can set up precedents of this kind as reminders to report to your client after every step in a transaction, addressing another major cause of liability claims - failure to report. The abil ity to create linked event precedents is something which could be taken further by someone assisting your practice with risk management. Amicus Attorney Pro includes several sample precedents which are helpful to get you started.
In the "Basics" view of each file there is a check box which can be used as a reminder if yOll do not work on any given file within a specified time. If such a file does go beyond that period withour a time entry, a "To Do" item will be placed on your "To Do" list. Automatically, you are reminded to check the sta tus of the file, and a note about this is placed on your Daily Report. A similar facility is available in Contacts for keeping track of people to help ensure that you keep in proper touch with your clients. Amicus Attorney Pro helps you keep track of the people with whom you work. It records a list of your contacts which you can easily track, limiting the risk of porential conflicts of interest. Each person in your practice can be related ro the various files with which they are associated. When you open a new file, you can simply search your Contacts to find out whether you have dealt with that person before. If so, a quick review of the files list on their Contact card will show you what files they were on. You can then open the files and readily determine whether a conflicr exists in dealing with that person on the new file. With Amicus Team, the information for every attotney in your office can be combined in a common database, providing shared information on files and people. It features linked check-lists between attorneys on the same file and the ability to see whar Others have or have nOt done, group scheduling and much more. Amicus Attorney III has full internet email integration, world wide web integration, and will synchronize with the popular palm pilot so that you can have all the "to do" and calendaring features in your coat packer. Of course, your friends will wonder about you when a very British voice comes out of your coat pocket with "Sorry to interrupt, but you have an appointment soon." It can be run on not only Windows 95, but also Windows NT, and a tutorial mode is helpful to get starred. In document assembly problems, when you're generating a document with Word or Corel WordPerfect, a dialog box appears, letting you save the document and attach it to the documents brand of the relevant file. We have Hot Docs 4 which links to your information in Amicus so that the fields in the template files are automatically "filled" once you tell the com purer to send one of your standard template letters [that your clients still think were personally dictated by See Page 38
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ant to cur your overhead? Feel the need to spend more time with your children? How about taking advantage of the space you acquired when your kids grew up and left you with an "empry nest"? Or JUSt wam ro make things more simple? These are among the reasons given by some Arkansas attorneys who gave up "downtown digs" and decided to 5[ay at home ro practice law. Martha Miller Harriman decided on the home office rOute "ro make my life as simple as possible." After she and state Senator Morril Harriman were married in June of 1992, Van Buren became her home and plans for her office were incor~ porated into the couple's blueprints for a new home, which was completed in December of 1992. Harriman is also an attorney, and he maimains a traditional practice with a traditional office on Van Buren's Main Street. Ms. Harriman's specialty is govcrnmemal relations, a/kJa lobbying. This means that when the Arkansas General Assembly is in session, her work is in dle state capital (as is her husband's) and she works out of the corner of an apartment the couple maintains in Litrle Rock. For about a year after she was married, Ms. Harriman maintained an office in Lirde Rock. Lowering overhead was on her list, bur nor at the top. "1 couldn't have
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asked for secretarial suPPOrt from him. Like ochers who practice at home, Ms. Harriman finds her computer indispensable. Through the computer, she is in daily contact with diems in several states. She does pro bono work for the Arkansas
their case over a cup of coffee," she said. She said none of her clients care that she works our of her home. "For me it's great. It fits my needs and life style just grear," she said.
Joel Taylor practiced III downtown Little Rock for 12 years, about half of that in partnerships and half solo. One impetus for moving his practice ro his brick and stone two-story home in the Oak Forresr section of Litde Rock in January of 1996 was the "['ylor children growing up and moving Ollt, leaving Taylor and his wife with a large home. Other factors in the move were {O get away from high overhead, driving to work and for the convenience of his c1iems. Clients had trouble finding parking places downrown. "If I had a 2 p.m. appointll1eIH 1 I could almost count on the diem gerring there at 2:30, and being exasperated," Taylor said. His clients are more comfortable now, he said. His overhead in 1997 was ten per cent of his groSSj downtown ir was between 25 and 30 per cent. Taylor, who has a general civil practice, remodeled the downstairs of his home and Tony Slone Images
Going Home to Practice several places I needed ro be, so I shut it ro make my life more simple," she said. Ms. Harriman has a part-time secretary ar Van Buren. In a crunch she can ger help through her husband's law office, bur can recall only [Wo or rhree times when she has
Volunteer L"vyers for the Elderly (AVLE) and a legal services program, the River Valley Volunteer Attorneys Project. Ms. Harriman ofren sees rhe pro bono c1iems ar their homes, "or I can go down the street to Hardy's and find a quite corner to discuss
by AI Schay 10
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dedicated all of it except rhe kirchen to his law practice. His wife, Nancy, has served as his secretary for a dozen years. "If yOll can maintain a Chinese Wall between your business and personal life, you can make it at home," he said. "We make a
reaJ effort to segregate these functions, and when we go up5[airs at night we are out of the office." His after-hours caBs are taken by an answering service, and he and his wife often spend weekends at their Petit Jean Mountain hideaway. The advent of fax machines and computerized legal research make practicing at home possible, Taylor said. The only downsides (0 home practice Taylor mentioned were that his wife of ItaJian descent can't use garlic when she cooks because the smell would permeate the law office. Also, the occasional unannounced drop-in client is disconcerting when Taylor's attire is less lawyer-like than he would prefer.
ye Mcleod struggled for a long time with her decision to move her doption-based practice to her home in the Hillcrest section of Litrle Rock. "There was my ego, for one thing, thinking I had to be a downtown lawyer," she sajd. She aJso worried abom how "professionaJ" it wouJd appear to practice at home. She made the move in June of 1996, and said it was "absolutely, a good move." American Bar Association articles about home practice played a big role for Mcleod in making her decision. "They zeroed in on lawyers with a small, speciaJized, and solo practice, for people who were compmer literate, and that fit me perfectly," she said. Mcleod utilizes much of her home for work. Her primary office is a sitting room that can be closed off from the rest of the house by French doors. She shares the office wim a parr-time secretary. Most of her contact with clients occurs away from her office, but if a client needs an office appointment in Little Rock, she sets this up for a conference room of a court reporting firm. Her work schedule involves days, nights, weekends and holidays. "Babies are born whenever they want to be," she explained. Besides adoption and related work, such as guardianships, and some family law for former clients, McLeod maintains an active role in VOCALS-volunteer work with Legal Services clients. Financial considerations were important in her move. Mcleod said she has cut about 25 per cent of her overhead compared to
l(
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Finding Your Niche in Private Practice by Taunia Davis Stadter
By the time I made the decision to go to law school, I was a nursing school dropout, had completed my bachelor's degree at night school, was inro my second marriage and had been working in healthcare administration for several years. I decided that a law degree would complement my ambidons to move up the ladder in healthcare administration and I never had any ilUelHion to actually practice law. I also had four young children who kepr me. very busy when I was at home and a wonderful husband who was my cornerstone. Before I began my final year of law school, I decided I needed to be exposed to the actual practice of Jaw before I graduated and had the good forrune of being hired by Justice David Newbern as his secretary for a year. Because I was a law studenr, I was also able to work as a law clerk at the same rime. That year
was pivotal in terms of my future career. During the fall of 1995, I was surrounded by SOme of the greatest legal minds in the state at the Arkansas Supreme Court and one of my courses at school was Legal Clinic. I believe that I learned more about the law and the practice of law during mat year than I had in the previous three years of law school. It was during that period that I decided I wanted to open a solo practice after graduating and passing the bar examination. My husband, a heaJthcare executive in Lirtle Rock, was, as always, very supportive of this decision. My true inspiration to open a private practice, however, came from my father. My dad had always encouraged me to go into business for myself He was a chemist and executive in a chemical manufacturing See Page 12
Cominued From Page 11 plant in Tucson, Arizona, and by December 1995. he was counting down the days to his retirement so mat he would finally be free to set his own pace and do the things mat he really enjoyed doing. He believed that if I were to open my own legal practice mat I would have these opportunities early on, without having to wait until I was older to enjoy them. During my final semester of law school, 5. my father passed away. I missed quite a bit ~ of school and work during that time. j However, with encouragement from my ! husband, family, and friends, and because I didn't want to disappoint my father, nOt only did I gtaduate, but I took and passed Cominued From Page 11 the bar exam in July. I then opened a pridowntown; bur another big factor was that vate legal practice in September of 1996. moving home allowed her to spend more I began my pracrice sharing office space time with her daughter, Ali, now 6, who with an esrablished attorney in an executive goes to school in me same neighborhood. suite in Little Rock. This was very helpful Mcleod said many of her dients are on because I had the support and legal experthe Internet, and it is far easier to commutise readily available to help me get on my nicate with them using E-mail as opposed to (CCt. 1 learned very quickly after hanging playing telephone tag. "Plus I have a copy of out my shingle that even though I had a law all my E-mail, which goes into each client's degree and a license, I really knew very little file," she said. "I check my E-mail before my about the practice of law. What I did know, morning shower."-:路 I learned from my experience in Legal Clinic. I can't imagine going into practice, Alvin Scha) is in privau practiu In Little Rock. He has sn-ved as executive director of particularly on my own, without having apprlum public drftlid" agrllcirs and dratiJ had that base. I learned how to deal with pmalty resouru unUN in Arkansas and clients, where to find th~ anS\vcrs to my questions and the process for working Oklahoma. He was an assistant arrornry general in /978/80. Biforr becoming an arronuy lhrough situations mat arise. So fairly early in my practice. I was way ahead of where I in /975, he worked as a newsman in Lirrl~ Rock, N~w York City, Memphis and would have been without my Legal Clinic experience. And I continued to receive supChattanooga. port from there after I opened my practice.
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Oftentimes questions arose (and still do) that I thought were too dumb to ask anyone. But I could always call the people at the Legal Clinic and get help without being made to fed foolish Ot stupid. If they didn't know the answer, they would either hdp me figure out where to find it or direct me to someone who would know. That supPOrt and encouragement gOt me through a lot of low points that came during the first year of my practice. Despite this, only three months after hanging out my shingle I was ready to caB it quits. Not because I didn't think I could make it, but rather because I was frustrated with the day-to-day pressures of the job and the profound effect it was having on my life at home. I had started a general legal practice and registered with the Arkansas Bar Association's Lawyer Referral Service. The number of calls I got every day was incredible, and it got to me point that every time the phone would ring I would cringe. I know that having a ringing phone is usually the sign of a flourishing practice and that's what everyone wants, right? But the stress was tremendous. The questions that I got ranged from specific questions regarding family law matters to probate matters, criminal matters and questions about starting a non-profit organization. People wanted to know how to get patents and whether their employers had the right to engage in cerrain activities. There were questions relating to loca.I1.Oning ordinances and juvenile law, general violations of civil rights and one question was about whether someone had a case because n he was "harassed by local authorities about
his barking dog. It really was overwhelming and I believed that if! didn't feel competent to handle a matter myself at least I knew enough about the particular area of law in question CO make an appropriate referral. The pressure that I put on myself was enormous. I was gening wough every day only by operaring under the philosophy of "fake it 'til you make it. n I finally reached a point where I didn't want to go into the office not only because I didn't want to hear the telephone ring, bur I wanted a career change. I would have been happy to go back co any of the jobs that I had worked at before - a waitress, a sacker at a grocery StOre, a lifeguard, or anything thar didn't require having to think abour the law. I felt guilty because of the sacrifices my family had made and I was extremely frustrated with many of the experienced attorneys with whom I had been dealing. Then I was invi ted to speak to one of the Legal Clinic classes about opening a private practice. Luclcily for the class, another attorney was there who kept a positive spin on the topic. I think I was very down on everything about solo practice and didn't offer much encouragement ro those students. At this point, I realized that I had to make some kind of change and it had to happen quickly. I men re-visited a word that had somehow been eliminated from my vocabulary. The word is "NO." When I staned my practice I was sure that I could be all chings to all people. Learning to say "no" again was one of the highlighLS of my career so far. I suddenly felt free, like a huge weight had been lifted from my shoulders. And remarkably, the world didn't stop turning when 1 said no. In fact, my world began to turn a little easier. I then made an important decision with the new year; I decided that I would begin to limit my practice to what I knew and felt comfonable wim and to begin educating myself as much as possible in the area of healthcare law. I had found my niche and 1 was going to do everything I could to establish myself. 1 had many contacts in the area aJld I knew that I couJd use that to my advantage. I began targeting my marketing effons with mese contacts. I aho began furthering my education in the health care field itself. I joined professional organizations for healthcare lawyers and arrended CLE meetings directed at healthcare attorneys.
And I made another imponanr decision I decided to move my practice home. I set up an office in my house, eliminating much of the overhead associated with renting office space. And because I was limiting my clients to corporations and hea\chcare professionals, I knew that not having a public office wouldn't be a problem. I could have meetings with my clients at their offices, or I could meet them at a "neutral site." I'm self-sufficient with clerical matters so I didn't need a secretary or receptionist. And I didn't need lots of fancy office technology. I had a lap-top computer, a separate phone line and answering machine for my business, and a fax machine that would also make copies. I knew that if I needed extra clerical suppOrt or had a large copying job, it was readily available through 10caJ businesses. I was set. With this move home, I greatly simplified my life. My endeavor to limit my practice began as a slow and easygoing process. In other words, I didn't have any healthcare clients yet and needed to bujld chat base before tim~ iting myself. But I also found that the more educated I became in healthcare law and the more focused I became on individual areas within this field, the more comfortable I fclt in presenting myself as a healthcare attorney. Within a few months, I signed a contract with a mid-size, non-profit heahhcare organization and I felt like I had fmally broken a barrier. My comfort-level and job satisfaction increased significantly. I was asked to give presentations to small groups on various healthcare law topics and it was gratifying to know that all of the work and sacrifices that my family and I had made were finally beginning to payoff. ] have cominued to refine my education and expertise in healthcare law. With all of the government initiatives in the area, keeping up with developments requires daily study. I subscribe to journals and periodicals that help me with this and I've been attending at least one healthcare law conference approximately every four months. This has been time-consuming and at times expensive and there have been times that I've wondered if establishing this niche was reaUy worth it. But upon reflection, I know that the time, expense, and effon has been an investment in my future and are well worth it. I am now, less than t\vo years into my law practice, successfully limiting my practice to healthcare law. The field encompasses a
variety of topics including fraud and abuse, antitrust, tax-exempt corporations, employment issues, managed care and COntract issues. I can say now that I truly am happy with the work I do in my private practice and I have much more confidence that I am truly a skilled practitioner. Of course, I have to continue to study and fine-tune my skills, but that's pan of the fun and the challenge. To me, heaIrhcare law is never boring and always changing. These are the aspects that drew me to love and appreciate the practice of law in the first place. I truJy respect those individuals who can open and maintain a general law practice. I know how much effort and patience it takes. Bur I think that attorneys who focus their practice are also vital to our industry. I see many similarities between the ever-expanding praccice of law and development of legal niches to the specialization in the practice of medicine. The law is vast, covering every aspect of our society, and I believe it is imperative that more lawyers become "specialists" in the many differenr areas of the law to better serve our clients. I never really thought about it in law school, although I d.id realize there are some recognil.ed legal specialties, such as tax and oil and gas. But 1 never thought that a solo practitioner couId realistically limit a practice in other areas. I always believed that solo practitioners needed to be generalists. It was only after I got into practice myself that I discovered that a person doesn't have to join a large firm to limit his or her practice. I have found that the real key to being successful in the practice oflaw is to practice what you know andlor what you enjoy. The Aavor of a law practice is determined by the individual practitioner's interests, mixed with continuing education and is oftemimes folded in with the practitioner's previolls life and work experiences. The result can be a practice that is appealing and satisfying to the practitioner and one that he or she will feel good about promoting and marketing. You've heard the saying, "If you build it, they will come." I believe that the same is true of a law practice which is limited in scope. The client who is purchasing your legal services will not necessarily want or need that particular service all of the time, but as long as you've built it, maintain it and continue to improve it, there will be someone who does come and who tells others to See Page 14
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Continued From Page 13 corne as well. Of course, there is a down side to the "Main Sereet" law office of a solo practitioner that focuses in olle particular area, and that's having to compere with the "shopping
center" legal practices that sell a little bit of everything. Ir's tough compcring against rhe big guys at rimes. especially since rhey offer one-stop shopping. But I know frolll experience that perseverance, highqualiry service and personal 3ncnrion ro my clients will keep me in business. I believe that the most imporranr
aspen of that succes is that my practice can offer the personaJ [Quch that isn't always available or feasible at the "mall." Recendy, on a long flight ro Disneyworld with my family, I was thinking about what a great decision I had made during my last year of law school when I chose my future
boss. My boss can be very tough and demanding, but she keeps the «red tape" minimal in decisions - such as when I can rake my vacation and how long I can be gone, how many hours I spend at work on any given day, the dress code, whether I have time to take my children to their denral appointments or can volunteer to go on their school field trips. There is also a great deal more flexibility in how many billable hours I have ro have for me firm, who I can accept as a client and how ro manage and prioritize my cases. My father was right. I'm free to set my own pace and to do the things I really enjoy doing. And while I do nor live ro work, I enjoy the work that I do. And more importantly, I work to enjoy those things that matter most in life. Finding my niche in the practice oflaw and going home to practice have given me that opportunity.+
DONALD COURT REPORTING I~O. Box 1733 Springdale, Arkansas 72765-1733 Telephone, (501) 756-2256 Toll Free, (888) 438-7836 Fa" (501) 751-9153 E-mail: 10416G.1112@compuserve.com
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The Barristers Ball November 14, 1998 The DoubleTree Hotel, Little Rock, AR A Gala Affair that will close the Centennial rear
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Alison O. Branon as Of Counsel The firm will maintain a general practice focused in the area of Bankruptcy. Little Rock Office
10800 Financial Centre Parkway, Suite 490 Little Rock, AR 72211 (501) 223-9495 Jonesboro Office 514 W. Washington Ave. Jonesboro, AR 72401
(870) 932-4729
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Retirement Programs
The ABA Members Retirement Program was designed by lawyers, for lawyers. That's why it provides the options that today's law firms need. The Program features a wide selection of investment offerings and plan options, including the new SIMPLE 401 (k) plan, plus comprehensive services that can eliminate administrative headaches and free up valuable, billable time. These are just a few of the reasons why we currently service over 5,000 plans in the ABA Members Retirement Program.
The Program offers comprehensive services and features including: • Core Funds • Structured Portfolios • Self-Managed Brokerage Accounts • Plan Sponsor Services And Assistance • Participant Services If you're interested in a retirement program designed around your firm's requirements, call: 1-800-826-8901.
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To obtuin H prospectus llbout Ihe Program, learn about charges and expenses or sl>eak lI·jlh a Plan Consultant, call 1-800-826-8901. Hem! the Prosl>ecIU~ carefully before yOIl forwunl or iIlH..-S1 funds. The AHA Members Heliremenl Program is offered through State Street Bank and Tmst 0Jmpany. ABA Members Hetiremenl Program. PO Box 2236 • Boston. MA 02107 Visit our web sile al http://abra.ris.ssga.colll or email usatabraprogrum@slalestreel.com
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IAWYERS MAKE IT HAPPEN... Lawyers are 100 often the unsung helVes in l1umy of the communities ill Arkansas. As part of our Ce1l1ellllial Celebration, the Arkansas Bar Association has implememed a project, "JOO Hours for 100 Years," 10 give the public a
more realistic image of ollr legal cOf1ll1ltwity and their consistellt vo/unteerisnl. BUI we need your help. By participating in the "100 Hours for 100 Years" project this yew; all of us can rake parI in recognition of our profession's contribu路 to our C0I111nllll;ties Gnd Ollf Slate. We want to show thalllot Dilly can lawyers make it happen - but they've been making it happen for years.
I;OIlS
THE TRADITION CONTINUES Jim F. Akins Brian W. Albright H. William Allen Blair Arnold E. LeRoy Autrey Joyce Bradley Babin James A. Badami Anthony Bartels Paul B. Benham, ILl Mark Binns Anthony W. Black Janet L. Bledsoe C. Tad Bohannon Clifton Bond Dan R. Bowers
Robert Branch William C. Bridgforth Robin Brown Thomas E. Brown William Jackson BUll, II Craig A. Campbell Thomas M. Carpenter Phillip Carroll H. Murray Claycomb Pat Jackson Compton Vicki S. Cook Barry E. Coplin M. Gayle Corley James O. Cox James E. Crouch James D. Cypert Boyce R. Davis Michael 1. Dennis Terri A. DeSio Jeffrey H. Dixon Melissa R. Dorn Annamary Dougherty Richard C. Downing John C. Echols W. W. Elrod, II Alan D. Epley Lewis E. Epley, Jr. Audrey R. Evans
Janie M. Evins Ann P. Faitz Roger H. Fitzgibbon, Jr. Victor A. Fleming Kay West Forrest Andrew Fulkerson C. Alan Gauldin
Lisa G. George Diane A. Gibson Melinda R. Gilbert John P. Gill Gerard F. Glynn Ray A. Goodwin Todd A. Greer Charlotte L. Greer Wendell L. Griffen
Dennis B. Haase Rita R. Hale
Don F. Hamilton David K. Harp
James E. Harris Charles L. Harwell Alice L. Holcomb John T. Holleman Don Hollingsworth P.A. Hollingsworth
Eugene Hunt Blaine A. Jackson William O. James, Jr. Mark R. Johnson Louis B. Jones, Jr. Robert L. Jones, J r. Jim L. Julian Philip E. Kaplan Charles M. Kester Deborah A. Knox Stanley R. Langley Hugh R. Laws Ike Allen Laws, Jr. Ike Allen Laws, III Robert B. Leflar Harry A. Light Martin E. Lilly
Mark Lindsay Hugh E. Longino, Jr. James M. Luffman Diane S. Mackey Jeffrey G. Maim Barbara A. Maim Howard L. Martin Stephen A. Matthews David R. Matthews Michael L. McCauley Mary S. McGowan Thomas H. McGowan D. Malcolm McNair, Jr. Jack A. McNulty Brandy M. McShane Henry N. Means, [IT Russ Meeks Harry Truman Moore R. Scott Morgan Tim W. Murdoch Charles R. Nestrud Wyck Nisbet, Jr. R. Gary utter Bobby Lee Odom Richard P. Osborne Laura E. Partlow William L. Patton, Jr. Donna C. Pettus E. Lamar Pettus Randy F. Philhours David J. Potter Kimberly S. Pulley Louis L. Ramsay, Jr. Brian H. Ratcliff Ken Reeves Bill D. Reynolds Lee Richardson Chet A. Roberts Kathryn W. Roberts Mark Roberts Judith Rogers Brian M. Rosenthal April M. Rye
Isaac A. Scott, Jr. Jay F. Shell Scott M. Simmons William R. Simpson, Jr. Susan M. Skinner Howard L. Slinkard Gregory G. Smith Rodney K. Smith J. Timothy Smith H. Vann Smith Carla G. Spainhour Jim D. Spears Janis C. Speed J. William Spivey, IU James D. Sprott Paula J. Storeygard Joseph A. Strode Judge John F. Stroud, Jr. William H. Sutton Gregory D. Taylor C. Tab Turner Fred S. Ursery A. Glenn Vasser
Larry D. Vaught Joe Volpe Guy Alton Wade Wyman R. Wade, Jr. Douglas Wallace Henry G. Watkins, III John D. Watson Ann West Charles N. Williams W. Jack Williams, Jr. Wade Allan Williams Misty J. Wilson Russell B. Winburn Carolyn Witherspoon Keith N. Wood Ronald G. Woodruff Marsha Choate Woodruff Robert R. Wright, III W. Kelvin Wyrick (as of 711 4/98)
100 HOURS FOR
~
~
100 YEARS
~ ·9
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Complete this form and retuMl it to the A,·kallSas Bar Association when you have completed 100 hom·s ofcommunity se,·vice during the past 12 months. This project is part ofour Centennial Celebration and you will ,·eceive ,·ecognition.
1898-1998 ~lVd oar
Arkansas Bar Association· 400 West Markham· Little Rock, AR 72201 ·501-375-4606 or 800-609-5668
Hours I.
Church, Synagogue or Mosque Work (other than reguJar attendance)
2.
Service on national, state, or local government board, commission, committee
or task force (no compensation was paid)
3.
Civic Projects, indudjng nonprofit boards and comminees (other than attendance at service club meetings)
4.
Free Legal Assistance (through organized pro bono programs or individually with up from pro bono commitment)
5.
State or Local Bar Association Outreach Efforts Disaster Relief. Lawyers for Literacy, Mock Trial, Law Day Activities, etc.
6.
Other (specify)
_ NUMBER OF THESE HOURS BENEFITTING CHILDREN
TOTAL HOURS SERVED DURING PAST 12 MONTHS Please Describe Three Primary Activities from Above:'
_
(for additional comments, plcuc
lI#
back of form)
I certify that I have perfonned 100 hours ofcommunity service for which no C011lpelLSation was received.
~
City
Narne
_
(Please Print)
Signature
Date
_
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Show Me The Money. (So Fast)
• •
Not!
A primer for defending attorneys fee petitions by Patricia J. Hays Losing a trial is bad enough, bur it adds insult ro injury when rhe loss occurs in 3. case with a fee-shifting statute. Before you can even unpack your briefcase, opposing counsel serves you with a fee petition weighing several pounds, which he has thoughtfully hand-delivered to your office. Keep in mind, this is the same opposing counsel who throughout the litigation never once timely responded ro a motion or a discovery request. Yct, the exhilaration of winning has inspired her ro stay lip all night preparing her fee petition which she now expects
your client {Q pay without question. Before you call your client and (ell him to write a check, grab your caJculaw( and a bottle of aspirin and head for the law library. You're in for a lor of work, but it will be worth it if you want to save your client some money. Remember that the purpose of feeshifting statutes is to ensure effective access to the judicial process, not to serve as full employment or continuing education programs for lawyers and paralegals. I \Vith this thought firmly in mind, you are ready to begin your artack on the excessive fee petition. It is imperative, however, thar you make it easy for the judge ro reduce the fee award. Don't expect the court ro meticulously dissect the fee petition and exrract the offending portions. In fact, most courts will routinely approve fee petitions if no serious challenge is mounted. After all, it's not the court's money at stake. It is your responsibility to carefully examine the fee petition and demonstrate to the court why the fee should be reduced. A wellorganized, thorough, and legally-supported analysis will be effective in persuading the courr to substantially reduce rhe fee award.
IS Thp .Ir\ansas l,allfPr
1'01. n Xn.l/Summpr
1995
THE LODESTAR The starring point for determining a reasonable attorneys' fee is the calculation of the "lodestar" which is done by multiplying a reasonable hourly rate by the number of hours reasonably expended on the litigation. 2 However, the prevailing party is nor necessarily entitled to this amount. The party seeking a fee award is responsible for submitting evidence supporting the hours worked and rates claimed. Where the documentation is inadequate, the court may reduce the award accordingly.3 Typically, the court computes the lodestar by ascertaining the time counsel actually spent on the case and then subtracting from that figure hours which were duplicative, unproductive, excessive, or otherwise unnecessary.4 In making the final lodestar determinacion, CourtS generally apply twelve factors 5 to determine whether to adjust the lodestar upward or downward to arrive at the appropriate fee. These f.tctors are as follows: (1) time and labor required; (2) novelty and difficulty of the questions; (3) skill requisite to perform the legal ser· vice properly; (4) preclusion of other employment, due to acceptance of case; (5) the customary fee; (6) whether the fee is fLXed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the undesirability of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases. Of these twelve factors, the United Stares Supreme Court identified the results
obtained as the mOSt important one and said that it was particularly crucial where a plaintiff is deemed prevailing even though he succeeded on only some of his claims for relief.6 The Supreme Court noted that many of the other twelve factors are subsumed within the initial calculation of hours reasonably expended at a reasonable hourly ratc. 7
REASONABLE HOURLY RATE The easiest parr of the lodestar equation to analYLe is the "reasonable hourly rate." The court is not bound by the hourly rate requested by the victor's counsel; rather the court may establish a rate that it considers reasonable based upon counsel's skill and experience and prevailing marker rates. s A starting point for this determination is the attorney's ordinary billing rate. However, this rate is nOt conclusively reasonable bur should be compared to the usual and customary fee for similar work in the communi£y.9 The Eighth Circuit defines the relevant communi£y as the one in which the case was tried. everrheless, if a plaintiff can show that he was unable to retain qualified local counsel despite a diligent, good faith effort, other rares may apply.l0 However, there are relatively few situations in which the use of our-of-state counsel is justified. Plaintiffs certainly have the right to choose our-ofstate counsel to represent them, but the defendant should nor have ro bear this extra expense, especially when competent, qualified local counsel exists. Therefore, if the prevailing counsel is a member of another state's bar, the reasonable hourly rate, for purposes of the lodestar, will generally be that of the particular Arkansas community where the case was tried. Prevailing counsel bears the burden of producing satisfactory evidence, in addition
to the anorney's own affidavit, that the requested rates are in line with those prevailing in the communiry for similar services by lawyers of reasonably comparable skill, experience, and reputation. I I At a minimum, counsel should inform the court of his or her qualifications, experience (especially in the subject maner of the litigation), and ordinary billing rate. Affidavics from other local anorneys who practice in the same field should be submitted as further supporr of the requested billing rate. If the prevailing counsel fails to submit any proof of his skill, experience, and qualifications to support the reasonableness of his requested rate, there are a few things you should do. First, provide me court with some information concerning the prevailing anorney's background yourself This information may be limited to only a Martindn/~足 Hubb~" listing, but it will at least reflect the number of years of practice and the general scope of the attorney's practice. Even this minimal information can be instrumental in reducing the hourly rate, especially if it indicates that a lawyer was recently licensed or that his or her normal practice is in a totally unrelated field. AnOther generally fruitful exercise is to review fee petitions and affidavits that the prevailing anomey has submitted in other cases. The anorney may have attached a resume or included a statement in a fee affidavit arresting (0 a lower hourly rate than that currently requested. Additionally, the anorney may have ubmined affidavits from other anorneys to suppon the lower hourly rate. The defending counsel can use dIOse affidavits to establish the reasonableness of the fee requested. Most importantly, remember to review orders from other cases in which the prevailing counsel was awarded attorneys' fees. It can be very persuasive to show the court that another judge awarded this same attorney a lower hourly rate in a similar case. Remember that even a $25 reduction in the hourly rate can mean a significant savings for your c1iem.
REASONABLE NUMBER OF HOURS EXPENDED Once a reasonable hourly rate is established, the really inceresring pan of defending the fee petition begins. Fee petitions are easiest to defend when the requested fee bears no rational relationship to the results achieved such as when the judgment is $ I5,000 and the prevailing counsel seeks a
There are several valid reasons for asking the court to reduce the number of hours claimed by prevail.ing counsel.
These reasons
include lack of specificity in billing,
block
billing,
over-
Slaffing, performance of unnecessary and duplicative work, and biUing inconsistencies.
fee award of $ I50,000. The prevailing parry would hardly be pleased if his lawyer presented him with a bill for ten times the amount of the recovery. Similarly, your client should be less than emhused about paying such a bill. Remember that "[a] reasonable attorney's fee is one that is adequate to attract competent counsel, but... [that does] nOt produce windfalls to attorneys."ll ow it's time to use that caJculator. First, simply add the number of hours requested to see if the tOtal is correct. It is amazing how often the addition is incorrect. ext, try breaking the bill (or bills if multiple fitms participated) into broad general categories such as pleadings, correspondence/conferences, research, discovery, trial preparation and trial. Put everything that does not easily fit imo one of these categories into a miscellaneous group. Alternatively, you may find it easier to categorize the bills by phases of the litigation, i.~., investigation and complaint, discovery, motions, trial preparation and trial, and miscellaneous. Amounts that may initially appear reasonable when reviewing a bill can rake on a rather sinister appearance when viewed in this manner, particularly if there
are two or more attorneys billing on rhe case. If there are multiple attorneys involved, analyze the bills as a whole, rather than individually because abusive billing practices will become much more obvious this way. At this initial stage of the review process, be aware of patterns that begin to develop such as several attorneys all performing the same task, ~.g., abstracting depositions. It is not necessary for all of the prevailing parry's attorneys to absHaCt the same depositions, even if the attorneys are located in differem cities or states. Furthermore, a paraJegal billing at a much lower rate can perform this work more efficiently. Also, watch for multiple attorneys billing for attendance at depositions or conferences. Finally, be suspicious if a prevailing attorney who claims expertise in a particular area of law has a large number of hours billed for research, particularly imo serried areas of law.
REDUCING THE NUMBER OF HOURS There arc several valid reasons for asking the court to reduce the number of hours claimed by prevailing counsel. These reasons include lack of specificity in billing, block billing, overstaffing, performance of unnecessary and duplicative work, and billing inconsistencies. The Eighth Circuit has instructed trial judges to weigh the hours claimed against his [or her] own knowledge, experience, and expertise of the time required to complete similar activities. 13
LACK OF SPECIFICITY At a minimum, the documentation offered by an attorney seeking a fee award ushould identify u,e general subject matter of his time expenditures. "14 Chief Justice Burger took this requirement a step further, stating that when a lawyer seeks to have his adversary pay his fees, the lawyer muSt provide derailed records of the time and services for which fees are sought. IS Detailed records are necessary, according to Justice Burger, because a court should nOt authorize the payment of attorneys fees unless the prevailing attorney has established by clear and convincing evidence the time and effort claimed and shown that the time expended was necessary to achieve the results obtained. IG The fee applicant bears the bu.rden of See Page 20
1'01, II No. I/So.mer 1Y9S 1'he ,Irkmas LaWler
19
Comillued From Page 19 establishing emidemem to an award by properly documenring the appropriate hours expended and hourly rates. Inadequate documentuion may warrant a reduced fee. l l Incomplete or imprecise billing records preclude the court from making any meaningful review of the fee application for excessive, redundant, or otherwise unnecessary hours and may make it impossible for the Court to ascertain a particular anomey's time expended on a specific issue or claim. IS Casual after-the-fact estimates of time
spem on a case are insufficiem to support an aWard of anorneys' fees. Anorneys who anricipate making a fee application must maintain contemporaneous, complete and standardized time records which accurately reflect the work done by each arrorney.19 Some courts have substanrially reduced or even disallowed fees ahogether in the absence ofcomemporaneous time records to substantiate fee requests. 20 Lack of specificity in billing is easy to idenrify. Check the billing statemenrs for time entries described in the following rerms:
meet with diems," "conference with cliems," "meet with witnesses," "meet with co-counsel," "review file,'" "'egal research," and "triaJ preparation." Such descriptions fail ro provide any clues regarding the type of work which was actuaJly done or its purpose. \'(Iith so little information, it is impossible for the court ro determine if the time spenr was reasonable and necessary in the prosecution of the case. Therefore, these are some of the easiest time entries for the coun to eliminate from the fee award. If you find several of these vague time
Mitchell Williams welcomes our new attorneys.
Pictured: Tim E. Howell. Of Counsel. Litigation Group; Jack D. Grundfest. Associate. Tax Group: Leigh Anne Yeargan. Associate. Litigation Group: Steve Bauman, Member, Tax Group
M1TCHELL W1LL1AMS SEL1G· GATE S· WOODYARD· P·L· L· C·
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entries, itemize them right in the text of your brief. Don't expeCt the cOlin to go digging through the fee starement to find them. Set forth the date, vague description, and amount of rime billed. Particularlyemphasize time entries of severa] hours duration that have no satisfactory explanation regarding how the time was spent. Courts are generally willing to reduce fee awards where the time entries are so vague that they cannot determine with certainty whether the time was even relared to the instant litigarion. 2 \ -[U]ncertainries should be resolved against the plainriff if arising because of imprecise recordkeeping without adequate justification,"22
BLOCK BILLING Block billing is another improper billing practice that is relatively simple ro arrack. Block billing occurs when a number of different activities are grouped rogether wirh one single claim for time. For example, a single time entry consisting of six hours may be described as: "research ADA: substantial limitation on major life activity of working; draft section of response brief on this issue; revise brief; telephone conference with client re: affidavit for brief." This practice makes it impossible ro determine how much time was allocated to each activiry, leaving the court no way ro separate the proper portions of the claim from the improper portions. 23 Again, take the time in your brief ro highlight some of the more egregious block billing enrries for the court. It is not necessary, or even practical, ro include an exhaustive list of all of these enrries in your brief. However, isolate those examples that emphasize the point. Keep in mind that vague, nonspecific descriptions often abound within block billed enuies so there are usually rwo possible avenues for reducing these fees.
OVERSTAFFING AND UNNECESSARY OR EXCESSIVE WORK Overstaffing occurs mOSt often when several attorneys represent the same client. When this situation arises. determine whether the client/anorney ratio makes it appear that practically every plaintiff had his or her own lawyer. [fso, by emphasizing this faa, you can often convince the court that the case was overstaffed, especially if you defended the case by yourself. The United States Supreme Court recognized that cases may be overstaffed and direCted trial judges to scrutinize fee requests
for excessive, redundant or otherwise unnecessary hours which law firms would exclude Billing from bills to their own clients. 24 judgment is an important component in fee setting. "Hours rhat are not properly billed to one's client also are not properly billed ro one's ndv~rsnry pursuant to statutory authoriry."25 Remember those panerns of excessive billing you initially idenrified such as several la'\vyers abstracting the same depositions? Bring them to the court s attention now by grouping rogether, by ropic, some of the more blatant examples. Identify specific projects performed by more than one anorney such as drafring or responding to dispositive motions, preparation of jury instructions, or witness preparation. Then make a chart showing the attorney, date, description, and amOunt of billable time charged co the particular activity. Where multiple attorneys represent the prevailing parry, you will often find that the total number of hou rs expended on a given project is excessive. Overstaffing is also apparent when rwo or more attorneys charge for time spent at depositions or trial, especially when only one of the attorneys actually participated, Some courts have held that absent an explanation, a fee request for several attorneys in attendance at hearings where only a single atrorney's presence was arguably necessary is excessive. 26 Finally, a bill reflecting an unusually large number of hours biUed in one day is a red flag that you should wave. For example, if an attorney bills over rwelve hours in a single day, you may convince a court ro be skeptical of such a claim. Certainly, as the number increases to fifteen or more hours per day, it becomes easier and easier to convince the COLLrt that the time charge is unrealjstic. In one case, a court found that the accuracy of the time records was called into question by a lawyer's claim that he logged 18.9 hours in one day. The court said that "[tlo accomplish this, he would have had to have been in his office from 5:06 in the morning until midnight, without taking any time for meals, to relieve himself or to do anything else. n Therefore, billing 18.9 hours in one day is "almost ipso facto excessive. "27 Any such Outrageous examples should be brought to the court's attention.
Remember that the trial court has discretion in determining the amounr of the fee award and that the most critical factor in making this determination is the degree of success obtained. Therefore, if the plaintiff failed to prevail on all of his claims, list the claims for the court and emphasize the ones which he failed to establish. If all of the claims are interrelated or relied upon introduction of the same evidence, it may be more difficult ro convince the court to reduce the award on this basis. However, appeal ro the judge's discretion. Even where the successful and unsuccessful daims are related and the hours are nOt easily allocable to a particular claim, a court can still reduce the fee in relation to the results. 29 If the prevailing attorneys obtajned results far below their expectations and performed unnecessary work on a case that was relatively straightforward with no novel issues, the court should reduce the fee award accordingly.
LIMITED SUCCESS
COSTS AND EXPENSES
The number of hours claimed will be reduced significantly if you can successfully
persuade the court to subtract fees attributable to block billing, vague time entries, and excessive work precipitated by overstaffing. You may also want to attack the praCtices of charging the full hourly rare for travel time or for work used in another case, such as form Be prepared to produce interrogatories. proof that the work prodUCt was "recycled" for use in your case. After both the hourly rate and the number of hours expended are reduced to more reasonable levels, ask the court to further reduce the lodestar due to the prevailing parry's limited success. Of course, this tactic works only in those situations where the prevailing parry actually enjoyed only limited success on his claims or damages. For instance, if the plaintiff asked the jury to award $1 million in damages, but received only $50,000, this result could fairly be characterized as limited success. Additionally, if the plainriffhad several different and distinct claims, but prevailed on only one of them, most courtS would likewise consider this result to be limited. Always put into perspective for the court the fee requested versus the results obtajned. For example, if a parry recovers $15,000, bur his attorney requests a $150,000 fee, the fee is ten times greater than the amount recovered. When viewed in those terms, mOSt courtS would agree that the fee is excessive. 28
Costs and expenses can add considerably See Page 22
fol. II Nt. l/Soller IItS
Tbe ,Irkma! LaWler
jI
Continued From Page 21 {O me {OtaJ award requesred. Some fee~ shifting statU[es indicate certain expenses which are recoverable as COSts.30 If a starute does nor define "coStS," then it is lIsually safe {Q rely on those costs enumerated in 28 U.s.c. § 1920. This statute is very speci"c regarding which costs are recoverable.
TRAVEL EXPENSES Usually the single largest expense Item will be for travel~related charges such as airfare, hotels, and meals. Many of the charges arise due {O the hiring of out~of-state attorneys. Other expenses arise from traveling to take depositions or attend triaJ. Regardless of me source of the expense, travel~related expenses are simply not recoverable as "costs." Some courtS have stated that since there is no need {Q employ out-of~state counsel, travel expenses should not be reim-
bursed. 31 Other courts have taken a "less liberaJ view toward aJlowing our-of-state atlorneys such items as travel, lodging, park~ ing, and long distance telephone calls so as to refrigerate undue enthusiasm for engaging our-of-state counsel."32
COURT REPORTER EJ(J'ENSES Fees of the coun reponer for any pan of the transcript obtained for use at triaJ are recoverable as a cost pursuant {Q 28 U.S.C. § 1920. Some couns have held that the costs of taking and transcribing depositions also fit within the meaning of this statute. Other couns have held that for the deposition expenses to be recoverable, the depositions must have been reasonably necessary to the litigation and used at triaL33 Still other couns have held that absent a speciaJ showing, COStS should not be taxed for depositions nOt used at trial. 34
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WITNESS/PROCESS SERVER FEES Fees associated with lay witnesses such as statutory witness fees and process server fees are recoverable as COSts. However, me prevailing parry needs to list the names of the witnesses on whose behalf he seeks (Q recover and provide documentation ro support the process server fees. Remember that some fee shifting statutes expressly authorize the payment of expenses associated with expert witnesses. while others do not. POSTAGE AND PHOTOCOPYl G Postage and overnight mail fees are not COStS within me meaning of 28 U.S.C. § 1920. Instead, these items are considered merely overhead or general our-of-pocket expenses which are not recoverable.3 s Expenses for printing and photocopying are generally recoverable as costs. Prevailing counsel needs to indicate the number of copies made, state the price per copy. and describe what was copied. Absent any receipts or documentation regarding copying costs, they will normaJly be disaJlowed. A FEW FINAL THOUGHTS As a finaJe to your brief, attach a copy of the prevailing attorney's fee statement. On it, next to appropriate time entries, write a reason why the fee for that particular service should be disallowed. For example, indicate "block billing," "vague," or "overstaffing." Then, subtract these time entries to arrive at a total reduced fee. in lieu of this practice, at least give the COUrt an amount which yOll believe is reasonable for the work performed and results obtained. When you've completed this task, it's time to take those aspirin and head for home. Ms. Hays is n /989 bonorgraduauoftlu UALR School of Law wheu slu was Managing Editor of tlu UALR Law Journal Silt is cttnrntly employd as in-house litigation counsel flr Southwestern Bell ulephone Company in Little Rock.
Prior to her
employment at Southwestern Bell, Ms. Hays defended an attonllY fie application for the City of Liuk Rock in which the plaintiffs' Ilttorneys petitioned the courtfor over $/94,000 in fus and costs. The court IlItJIlrded the plaintiffs only $35.000. The IlwIlrd was "cemly affirmed by the Eighth Circuit Court of
Appenu. EndnOtes I.
Lipmr 1992).
I'.
Bumco, 975 F. 2d 934, 938 (1st Cir.
See Page 39
tt fbr Irkml! LlII")rr \'01. 1110. l/Sommrr 1998
1998 ANNUAL AWARD RECIPIENTS
Arkansas Bar Association Arkansas Bar Foundation
James H. McKenzie
Outstanding Lawytr TIN Outrlllndinluwyn AWIlnJ is givtn in rrcognition of txttllntct in tIN prama of law and oumanding contributions to ,IN
pro/mion.
Charles B. Roscopf Outstanding Lawyer-Citizen
John P. Gill CE. Romick Award of Excelltllce
Tht OutsCilnJint uWJ"-Citiun Award is gium in rrrognirion ofoll-manaing partici-
ThiJ aUlard if tivm in rtCOf"irion oftxtra· ordirtllTJ snv;ct to fix kga/ profroion.
Tht Oumandi,,!. lAwyrr-Humanitarilm Award is givm to rrrogniu oumonding humanitarian smJict.
John Gill's record of service lO the legal profession began years ago while he was a law studelll and has continued since that time. His goals and determination throughout the years lO advance the interest of and to improve the legal profession are evidenced through an unparalleled sense of responsibility and commitment. John is a dedicated member of the Arkansas Bar Association and a Fellow of the Arkansas Bar Foundation, having served both organizations as President. He has also been a member of the Association's Ex~tive Council and House of Delegates, in addition to serving on a mulrirude of commitrees. He served as Chair of the Building Comminee for the Arkansas Bar ~nter and has been a faculty member for the Arkansas College of Trial Advocacy. John is a Pasr· President of the Pulaski Couney Bar Association and is very acrive in his community. John's dedication to the legal profession is embodied in 0" th~ Courthous~ Squau in Arkansas, a picrorial book he co-authored with his wife Marjem.
According to Bud Whetstone, "What you're worth is what you give away." Bud has given much to his community, both in time and financial support. He has been generous with his time, lecturing on the subjects of torts and workers compensation. He also served as Chair of the Workers' Compensation Section of the Arkansas Bar Association and co· authored the Workers' Compensation System Handbook published by lhe Association. He has been hon· ored by the Arkansas Trial Lawyers Association, receiving [he Outstanding Trial Lawyers Award. He has been generous to the community in his financial suppon for many years. According to a r«em Arkansas limes article, he •...s[arted giving his money away almost from the moment he starred earning it. First it was [0 his college, then to his law school. Then, gifts to var· ious causes." Bud recendy contributed $ J million ro the Greater Little Rock Boys Club, honoring a promise he made [0 his late son, Dal[on.
pation in and (Xcrlkm pnformanct ofcivic
Bud B. Whetslone
OutJIanding LawyerHumanitarian
mponsibilirif1. lindfor Jnnonsmuing high standards of pro{roio1tJl1 comptttnct and conduct.
For the past thirty years Jim McKenzie has proven himself ro be
a credit to rhe bar, his communiry and his state. He is widely recog~ nized throughout this stare as one of (he rop-notch trial lawyers in Arkansas. In addirion, and more imponandy, Jim is an absolurely honorable and professional atrorney. "In aU his years of trial pracdee, Jim has never Cut a corner, his word has always been gold, and his inregriry has always been beyond reproach. Jim is one of the lasr of whar...may be a va.nishing breed of trial lawye.rs, whose excellence in coun is exceeded only by their personal honor and dignity." These natemenrs, made in nominating Jim, caprure many of his qualities and virtues. Jim was schooled in the profession by one of the truly great ge.ndemen of the law, his fuher, Horace McKenzie., and he has carried on the tradition instilled in him of civiliry, honor and integriry. Jim has served his profession in various leadership roles including President of the Arkansas Bar Association, Chair of the Executive Council, and on numerous committees. As a Fellow of the Arkansas Bar Foundation, he has served on the Board of Directors and as a member of the Trusr Committee.
Charles B. Roscopf has willingly and fairhfully served his profession and his communiry and has made significant contributions to bOlh for more than forty years. He has led many of his professional organizacions, serving as President of the Arkansas Bar Association, President of the Arkansas Bar Foundation and President of the Phillips Counry Bar Association. He is a Fellow of the Arkansas Bar Foundation and the American Bar Foundation. He was a member of the Arkansas State Board of Law Examiners for a number of years, also serving the Board as Chair. In addition to his many bar leadership roles. Charles' accomplishmenrs in his community are numerous. Charlie was active in nate politics as a member of the Arkansas House of Represencatives for three rerms. He has served as a member of the Board of Directors for the Helena Chamber of Commerce, Helena United Way and East Arkansas Council Boy ScoutS of America. He is a Past President of the Hdena- West Helena Industrial Development Corporation and rhe Helena- WeSf Helena Rotary Club. Chairman.
III. II SI. lllllllr illS Til lrkmil LIW)lr 1l
IUIUIUIUIUIUIUIUIUIUIUIUIUIUIUIUIUIUIUIUIU lUlU lUlU lUlU IU III III III IU
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If you don 'I see the seal - it's 1Iot all Arkansas Bar Association eLf Program. As a vo[wuary association, we depend ml you, our members, to suppon our eLf programs. Your financial support benefits every Arkansas Bar Association member with enhanced membership bellefits lind discolllus as \Veil as rile highesl qllality eLf programs ill the slale.
September 18, 1998
December 4, 1998
FEDERAL PRACTICE
EsTATE PLANNING Glour! ~«oTb.
INSTITUTE:
November 19-21, 1998 BRIDGING THE
TBA 6 hrs. CLE
GAP
UALR School of Law, Little Rock 15 hrs. CLE
A DAY WITH THE COURT
UALR School of Law, Little Rock 6 Hrs. CLE (including 1.0 hrs. ethics)
December 10-11, 1998 FEDERAL TAX I
STITUTE
(CPA SOCIETY)
DoubleTree Hotel, Little Rock ARKANSAS TRIAL PRACfICE I STITUTE
Date & Location-TBA 6 Hrs. CLE
January 15-16, 1999 MID-YEAR MEETING
ovember 19, 1998 CNA Loss r;:::::=====:::;l
Peabody Hotel, Memphis 9 hrs. CLE December 4, 1998
CONTROL
LEGISLATIVE
Hilton, Fayetteville 3 Hrs. CLE (including 2 hrs. ethics)
ADVOCACY
February 5, 1999
TBA
5TH DISTRICT TRIAL PRACTICE
6 hrs. CLE
£1 Dorado, Arkansas 6 hrs. CLE
t I Tlr ArillSIl LIIITrr
\'01. II Ne.l/Summrr 1915
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1'01. llilo. l/Sommer 1~9S
The ,lrkalSal Lattjer
2i
1998-99 PRESIDENTIAL FEATURE
I
f
I zÂŤTr in high school and my uacb~r told m~ to wriu an asa) on Mr. Rob~rl M. uar/9 Jr., I would entitle it "My thoughts on Bob." And
Ihm I would probably sit and star~ at a blnnk pag~.
For a long while. Buause what do yolt say about a man in his fifties who wears starched whitt shirts and gray pants and thinks history is inumting? So Ihm I would probably writt something dup like, Bob iJ lik< hiJ o/fic<. o.K.ftrgiv< m< ifl wax po<tic or ovado a metaphor. but Bob is like his offia. And it's II gnat offiu. The walls flrt' slott gray, tJu floors a polished hardwood, and then is off-whiu aou.m molding ali around. Vt'')' comervt1tive, very classy, vay dignified .. on the Imfnu. But thm you Slart poking Jour nose around and you think, Man!
Pictured at the righl are Bar Association President Robert M. "Bob" Cearley with his daughters Ginger (left) and Erin (right).
ARTICLE BY
Sara Landis & Adrienne Brietzke
!,
U, .IrtllllJ IJwlfr
III. ~~ ),. ~ S'lltr IllS
Arizona. He has bun rafting through Arizona for nint days wlltre you bathe in the frigid wnUrs oftlu river and cook 011 the short. And apparmt/y at an AnnuaL Muting ofthe Trial LAwyers in Eureka Springs. pmefiud a ''middle-aged v(nio" of slam-dnncing, " according /0 David H. \f/il/inms, and nearly broke David, bmw bont (tht ,amt night David did "the Monkey Danet" in the window). He has two dnugluUJ of whom he is ~ry proud. When IJt talks about them, his ryes get
bright and crinkks fonn around tilt cornnJ of them becau.se his smik buom~ so big, quick and easy. Erin, 26, has a Masurr Degru in Marketing and she works for a mortgage broktmgt finn in Atlnma, Gtorgia. Gingtr, 24, graduaud fom tilt University of Colorado, Bouuur with a dwu in economics and now works for tilt \Vhiu House Millennium Projul. He tries /0 gtl /ognhtr with his girls as ofim as possjbl~. This yMr tluy are going to Canada tog~tl)(r to do SOl1U biking and hiking and genaal "looking around" Both girls gr~w up I)(rt in Arkansas, Bob himstlf moved here nt I}lt ag' of 12 from Ttxas. BOlh ofBob, parents live in ArkamllS too. His fatl)(r, Robert M. Cearley, Sr. who was in Production Management for a corrugated box company. mird 15 yw', ago and bt and hi, wift Joy moved to Hot Springs where they built It house on th, Inkt. Bob apprtciaus art. His house is a contemporary style with the most inttrestingfront door I have ever sun. When you stt it, you wonekr why the Home & Garden channel hasn't approached him to do a fiatu"". "TOnight's fiaN/re... Cool Front Doors in America. .. it is a heavy wooden revolving door that the archiuct who built tht holtSt ftTTtttd from tht Pulnski County Courthouse during a past renovation. At one time the part of the Courthouse that -! faces the Arkansas Bar Cenur used to "'be at 13 !Last double. maybe even trip!L "volving doors. This piaee is cooL There art funky silver stat- he is a very in/erYsting and extTnTUiy colorftl At some point they put in what they've got th~ now." The architect got the doors and some ues tucked into comers, very co/erftl art on the person. He enjoys travel. He does some ronning, light fixtures. It's inspiring. I am now on my wails. magazine articks ofcases he is proud of .framed on the fualis and travel magazines but biking is his particular /eve. A friend. own quest to have such a great conversation interspersed with law joumals on the tables. Mike Mitchell. got him interested in biking pi~u. He even has a couple ofpieces ofart at eight yeaTS ago. Now he takes several biking his house by the same woman who designed the So ytab... Bob is likt his Offict. IfI had to 'pOIll out a qltick, on-tht-,urjirct, trips a year in Colorado whert you bike ail day Vietnam WOmen's Mnnorial H, is quick to Inugh and has a V"j plnyfUl SIlmmary ofBob Iii ,ay "H,!ik" staftod. dri- tbrougb tht moumains during th, tiny and then stop at a really great place to spend the spirit. Surprisingly enough, he even inquired as ves a BMW, has no pets because hes not home evening enjoying good food and wine. In to when South Park. a controversial cartoon enough to properly care for them. enjoys Bar September ofevery year, for the last six or seven airing on Comedy Central, comes on at night Association work and loves the law. .. But, dig a lirsk alld b, nosy, andyolt think years. a group that hIlS tumed out to be pri- so he can check it out. So thm yOIt go. My Tholtghrs On Bob' Ht, Man! This gllY is rtally cooL H,11 probably marily Inwytr!, goes ',om,whm" to bih They never reveal it to you himself because, believe hav, bun 10 Utah, Bryct Cauyoll in Las jqgas jusl...w,II... cool. .:. .:. .:. mt, }" tin",,'t likt talking about },imulj but and this September they'll be going to Sedona,
i 1 J
1S
ne MkuSIJ Ll~yer
1',1. II Ii. l/Su••er 119!
~
at you first notice when you step off the elevator into Bob Cearley's offices is that you're immediatley pUt at ease. You realize that the office is, in many ways, a projection of Bob himself, an impeccable dresser whose imer-
The Cearley family pursues their passion for biking near Inn at the Mill in Johnson, Arkansas.
ests are both broad and eclectic, but whose style is easy and exudes calm. Cearley is incredibly easy to talk to, and in conversing with him, you sense a depth of knowledge and a thirst for learning. He shows a quiet passion when he talks about the law and his love for his chosen profession. Born in Galesberg, Illinois, Cearley moved with his family to Arkansas at the age of twelve, when his father, who worked for the Champion Container Corporation, transferred here. He earned his J.D. from the University of Arkansas School of Law at Fayetteville in 1969 and began his legal career with a firm in Little Rock. He then served briefly as a deputy prosecutor in Pulaski County, after which Cearley joined with schoolmate Dent Gitchell in opening their own law firm. "We were twO young, idealistic, somewhat naive buddies from law school," recalls (now) Professor Dent GitchelL "It was juSt Bob and me and a secretary, taking on the cause of just about any client who wandered into our office....sharing our hopes and dreams, splitting every fee we earned down the middle. When one of us went hungry, both of us went hungry." The firm grew to include other old schoolmares Mike Mirchell and (now) Judge David Bogard. "I thought ir would be easy to write something about Bob Cearley for
The Lawyer, I rhoughr ir would be easy to write something about a hen friend," relates Mike. "I first started writing down adjectives such as perfectionist, honest, private, but it sounded so hokey... .! just don'c know what to say..... [without betraying confidences or getting too personal.] Judge David Bogard wrires: "Roben Louis Stevenson once said "... 3 friend is a gift you give yourself." My gifr to myself is Bob Cearley. ...what impresses me most about Bob is his steadiness. He has the abilicy to focus and maintain a calmness in the face of calamiry. ...1 COLInt myself fortunate to have him as a friend." The side of Bob Cearley with whom we're all familiar is the quitely imaginative lawyer who went up against the state's "Creation Science Law.Âť That law required the Biblical account of creation be taught in Arkansas public schools on an equal fooring with the theory of evolution. The court held that "creation science" met none of the tests of science. And then there were the Daisy BB gun cases that gained Cearley national attention. He sued the Daisy Manufacturing Company of Rogers, Arkansas on behalf of a 10 year old boy who was accidentally shot in the heart
wirh a BB gun rhar rhe children playing thought to be empey. The accident rendered the boy a quadriplegic. The gun, seemingly empty after being shaken and "dry fired" even multiple rimes, can suddenly shake loose a BB lodged in the rough interior and shom a BB with enough force to pierce human tissue and bone. A tandem case Cearley rook on involved an 11 year-old boy in Michigan who suffered severe brain damage after being similarly shot in the head with a BB from another Daisy BB gun. Borh cases eventually settled, one for $5 million and the other for an undisclosed amount and caught the attemion of the ABC Network, which ajred a segment about the cases on their "20/20" newsmagazine show, featuring an interview with Cearley.
Bob with his Office Administrator, Kathy Wooley.
---------1'01. llll'O. liS ulmer 1995
ne IrkuSl! La"ler
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The respect and admiration of Cearley's colleagues throughout Arkansas was demon~ strated when he was named "1997 Outstanding Trial La\"'Yer of the Year" by the Arkansas TriaJ Lawyers Associarion, an award of which he's particularly proud. In writing about his friend and office parmer, David H. Williams said, "Anyone who knows Bob respects and appreciates his intelligence, his thoroughness and his drive for perfection.... Bob is willing to put it all on [he line and roll [he big dice. Fear of failure is no obstacle. ... Bob's tenacity and determination to "hang in there" resulted in success... " in the Daisy BB gun case. "As a result of his work in exposing this dangerous product, Bob succeeded in providing a mea~ sure of financiaJ support for the children injured by it. JUSt as importantly, he suc~ ceeded in lifting rhe burden of guil[ from rhe hearts and minds of [hose young boys who thought they were responsible for a disabling injury." Cearley was aJso honored in 1997 wi[h a Golden Gavel award from [he Arkansas Bar Association for his work and
10 The lrkaum LIII!er
1"01.
nSo.l/Summer 1998
don't have dinner together at least every Left: Bob with David H. Williams al their other week, if not weekoffices. ly. Judge Reasoner said Below Left: Judge Robert F. Fussell of that. ore of the reasons Fayetleville, Bob, Beverty Witlenberg, and he so enjoys these dinJudge Richard S. Arnold at his retirement ners is that he loves to reception. hear what Cearley has to say about different legal points and the debate thar sometimes ensues when they may not agree on a particular point. He describes Cearley as "...a Renaissance man. He has a wide range of interests and can talk about them knowlOf course, edgably. Bob's on my recusaJ list, so I've never seen him in court as a lawyer but in conversations with him, I can teU he's very versatile about some cases, dedication not only as Chair of the and innovative in his theories of recovery Association Membership Committee and establishing evidence." that year, but as Chair of the Annual Another close friend, Bob Trammell, capMeeting Committee. Cearley has been tures the "quintissential Cearley," - the total volunteering his time and serving on professional, the consummate gentleman committees since he first joined the and the man who doesn't just go through Association in 1969, including Chair life, but devours it in large chunks. "Bob is of the Young Lawyers Section, Chair of incredibly stimulating in so many of the difthe Family Law Section, co-edicor of the ferenr points of the practice of law. He Association's Domestic Relations Handbook aJways has something inreresting to share (l996 Ed.) and membership on numerous and does it with such charm and frolic. He's committees. He's also served as Chair of everything that's good about the practice of the Executive Council and is a current and law and he's concerned about it's future."路:路 tenured member of the House of Delegates. Cearley's passion for the law, his dedication, ingenuity, honesty and integrity have earned him a universaJ respect among his colleagues and all who know him. Judge Stephen Reasoner, Chief of [he Easrern Coun of District Arkansas is an old lawschool mare and friend of Cearley's. He [a1ked about the close friendship [hey've shared through the years, commentlllg that it's rare [ha[ he and Cearley
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One third of the membership of the Arkansas Bar Association will receive a this fall. It will ask questions about technology, member benefits, etc. Your cooperation in completing the Survey is crucial to your Association knowing the opinions and needs of members. (Members receiving the survey will be randomly selected.)
Barbarians at the Gate: Image, Ethics and The Unauthorized Practice
of Law by Brad Hendricks
T
he currem controversy surrounding the unauthorized practice of law in Arkansas creates a unique opportunity for anorneys in this state co unify and improve our public image. Though we
worry incess31ldy over our plummeting
public image. we are our own worst enemy on that subject because we greatly contribute to the very public perceptions which we decry. Some plaimiffs' 3CtOrneys are quick to cast defense anorneys as sinister shysters whose sole purpose is to avoid the rruch. Conversely, some defense attorneys caSt plaintiffs' attorneys as greedy hustlers who will do or say anything to make a buck. Corporate and tax anorneys are sometimes referred CO as leaches on society. taking much and contributing lircle. These are remarks often heard from anorneys abom other anorneys. The public needs linle help in drawing thcse conclusions about us, as we create thcse images for ourselves when we describe one another with such derogacory language. We don't talk anymore about how a courageous sole-practitioner risked bankruptcy CO cause a dangerous product marketed to children to be removed from the shelves. We don't talk about how a determined defense anorney marshaled the forces of a large firm to save a person from financial ruin who has been falsely accused of negligence. We don't talk about the benefit to society when corporate and tax arcorneys skillfully negotiate the maze of issues, tOO complex for most of us to understand, so that a new museum. library or arena is transformed from the drawing board to reality. We don't talk about these things because we have become myopic in our individuaJ perspectives. We want the negative image of attorneys to have been caused by someone else. We seek easy scapegoats. We are far
11 ne ,Irklllil LIW!er
f,tll 1"I/S.ller illS
wo quick co cast one anomer as some type ofculprit. In order to effectively combat the unauthorized practice of law. it is imperative that we rid ourselves of these faIse and petty notions and unite as a profession. By recogniz.ing that we must stand wgether to protect the public and ourselves from the unauthorized practice of law. we have the opportunity to have an impact on the image of anomeys, while reining in a serious and growing threat w the public and our profesSion. MoS[ attorneys understandably do not wish to soil their hands by grappling with the tawdry details of unlicensed individuals soliciting personal injury cases. In John Grisham's Th~ Rainmak~r, such activi[)' was enough to drive the bright, young protagonist from the practice of law. Investigating and dealing with this issue is unpleasant, time-consuming and expensive. A3 attorneys, we are often unaware of these activities until one of our clients or family is approached in person or by telephone by a non-lawyer seeking legal business. Defense and corporate attorneys oftentimes don'r think or don't know that these activities affect them. It is tOO easy to scoff at me matter as if it is somehow beneath us, or is the problem of someone else. Nothing could be further from the truth. If you are an anorney, it is your problem. The most salient point, frequently missed by attorneys, is mat every unauthorized practitioner of law taints the legal profession directly. The public perceives these unlicensed individuals as lawyers, or as having some role in the legal profession. Even in those cases where a vicrim knows that the perpetrator is nat an attorney. the legal profession still gets the blame. The perpetrator is perceived, at the very least, as being a
fringe member of the legal profession. Consequemly, we get the worst of both worlds. The unlicensed person is responsible for causing a bad experience for the victim. and all attorneys are blamed for the mishandling of the matter. Concern over the unauthorized practice oflaw has reached new levels now that unlicensed individuaJs are making inroads into virtually every segment of our profession. Accouming firms are buying law firms and engaging in the practice of law. There are strong arguments that collection agencies have long been practicing law without a license. I Non-lawyers with a toll free number offer estate planning as if one need only paint by numbers in order to properly pro[ect and distribute one's assets after death. Living trusts are sold by unlicensed individuals with no thought given to the anguish suffered by a family when they learn that ir is unenforceable and useless. on-lawyers offer to do divorce work. Defense attorneys seldom litigate without imerference from an adjuster. lnsurance companies reportedly are now so bold as to issue written rules to defense firms governing wh..ich functions within me firms must be performed by paralegals instead of attorneys. This places defense firms in an untenable ethical dilemma as they attempt to exercise their independent professional judgment and exacerbates the potential conflict between representing the insurer and the insured in the same action. Ethics opinions from around the country reveal mat there are intrusions into every area of practice. The harm to the public and to our profession is substantial. However, instead of aggressively attacking the problem, we wring our hands over being perceived as protecting our own and do little or nothing. We. have an obligation (0
protect ourselves and to protect the public from these intrusions. The fact that these wrongs are being commined within and around our profession imensifies our need to work together to eliminate the unauthorized practice of law wherever we find it. In the area of tort law, we have been compiling information concerning who is engaging in the unauthorized practice of law and how they are doing 50. Individuals of various employment backgrounds, certain independem paralegaJ services, and a variety of common street hustlers who seek to profit from tort cases by performing functions reserved by law for licensed attorneys are being idemified. Some medical providers
are also allegedly parr of rhis problem, although this has yet to be proven. The typicaJ scenario involves unlicensed individuals accessing public records or monitoring police scanners for information concerning victims of tOrtious conduct. The unlicensed person or group then engages in direct, in-person or telephone solicitation. Attorneys have long been prohibited from engaging in such solicitation techniques, as it is believed that direct solicitation of this nature constitutes overreaching. Currently it is common for new personal injury diems ro complain about individuals appearing at their home or hospital room, or calling them on the telephone. This conduct contributes significantly ro the negative image of attorneys and we absolutely must put a StOP ro It. Unfortunately, the unlicensed person who engages in direct soliciration sometimes does so on behalf of an unscrupulous attorney. We need to identify each attorney who is a part of this problem and ensure that they are appropriarely disciplined. Some unlicensed persons hold rhemselves our to the public as being brokers for atrorneys, or offering a service of finding the righr attorney. This means simply rhar the dient will be referred to someone with whom [he broker has some form of prior arrangement. Some allegedly attempt to handle the case as if they are attorneys themselves. Those who
ey appe3.rs ro have lapsed jusr prior to the accident, the non-lawyer usually does nor know that the coverage may have scill been in force. Under such circumstances, the victim may be incorrectly advised that there is no coverage, so there is no source of recov· ery. A non-lawyer often does nor understand the importance of protecting subrogation interests of automobile insurance carriers or workers' compensarion carriers. When the victim gets sued by the workers' compensation carrier after he or she has spent the funds recovered from the rhird parey it is the legal profession that he will blame for his troubles. A non-lawyer is uninformed regarding the legal significance of medicaid liens and ERISA plans. An unlicensed person cannot protect a victim from improper, irrelevant or leading questions during a taped ilHerview by the adjuster, and does nor know how ro ensure
The salient point most often missed by attorneys is that every unauthorized practitioner of law taints the legal profession directly. The public perceives these unlicensed individuals as lawyers, or as having some role in the legal profession. the recording is inadmissable if the m3ner proceeds to rrial. The non-lawyer is unaware of developing case law which may directly affect the victim he represents. The non-lawyer has no ethical obligation whatsoever with respect ro the victim. He has no reason to be concerned about the long-term consequences of his actions or inactions with respect to whatever compensation might be obtained for the victim. Since trial muSt always be avoided, cases are sertled for far less than their objective value.
riz.ed practitioner is nor governed by rules of ethics, he may encourage the victim to be dishonest with rhe insurance adjuster. Some may even go so far as to manufacture witnesses, if the porenrial reward seems to ourweigh rhe risk of gerring arrested for insurance fraud. There are as many risks of harm as there are issues and tasks in a personal injury case and the viccims who are harmed are left without even recourse ro a legal malpractice carrier. Continued on Page 34
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• Business Valuations • Personal Injury Damage Analysis • Divorce (Property & Child Support Issues)
hold rhemselves our as helping only ro find the righr attorney will oftentimes issue selfserving statements that rhey do nor give legal advice. Bur despite their disclaimers, under the ex.isting statures and under the craditional concepts of rhe practice of law, they are giving legal advice. The lisr of ways that a personal injury case can be mishandled by a non-lawyer is exrensive. If the tortfeasor's insurance poli-
Evidence is nor preserved. Witnesses are nor interviewed. First part)' coverage is not properly utilized so that the victim is protecred from bill collecwrs. Letters of protection are unavailable to the non-lawyer. Broad insurance company authorizations for the release of medical records get signed which permit adjusters to converse with a vicrim's doctor without an anomey present. Insurance companies are allowed ro gather medical records which have no bearing whatsoever on the case, but which can be used to embarrass or inrimidate the victim. Non-lawyers know nothing about venue choices, or why they can be important. Complex cases are not properly funded and developed [Q ensure a proper recovery. Overcharging by medicaJ providers is lefr unchallenged. To the contrary, it is encouraged by individuals engaging in the unauthorized practice oflaw. Since the unautho-
COllrl-Appoillled • Reglliar Caliri Appearallces Richard l. Schwartz
Certified Public Accountant Certified Business Appraiser Certified Fraud Examiner
11510 Fairview Road, Suite 100 Little Rock, AR 72212-2445 Phone: (501) 221-9900 Fax: (501) 221-9292 email: schwartz@busvalu.com
I"ol.ll XO.l/SUlllllllr 1m Tbl.lrkaosal LlII,tr
II
Cominued from Page 33 The taerics being employed to practice tort law without a license vary. depending on who is involved. One of the cactics used by unlicensed persons who are not brokers for attorneys is to tell victims that they don't need an anorney. Ami-lawyer rhetoric is used, as well as inflated promises of financial gain and Other exaggerations and misstatements. Nothing is out of bounds. Brokers for attorneys will extoU the virtues of the attorneys involved, and speak ill of any other attorney. Since there are no ethical rules to govern them these people may say anything which might help persuade the pOtential client to sign a contract, without regard to what is or is nOt the truth. Attorneys who practice in collections, tax, domestic relations, probate and other areas of practice where unlicensed individuals are making inroads into our profession are all too familiar with the harm ro the public when non-lawyers practice in those areas. Presumably, the harms that can befall the public and me profession are equally extensive in those areas of practice as well.
TOXICOLOGIST/ FORENSIC SCIENCE
ROBERT W. FLOURNOY Ph.D., R.E.P., D.A.F.B.E. • Diplomate, American Board of Forensic Examiners • 32 years Experience • Registered Environmental Professional • Expert Witness/Courtroom Expertise • Curriculum Vitae Upon Request
205 W. Alabama Avenue P.O. Box 2001 Ruston, LA 71273-2001 Phone: (318) 251-0980 Fax: (318) 255-6703
II
Thr ,Irkmas I,llljrr
1'01. ll,l'o. l/Summrr
1991
Aggressive enforcement of the prohibition against in-person solicitation must be applied on both sides of the Bar. The tactics of plaintiffs' and defense counsel should be reviewed to ensure compliance with the Model Rules of Professional Conduct. Defense firms allegedly use direct, in-person and telephone solicitation to seek out insurance companies as the source of personal injury business. One customary approach reportedly involves calling an insurance executive known to be in need of legal services, and issuing a social invitation or arranging a business meeting. The attorney then engages in direct solicitation of that business. The only difference between this behavior and that of the plaintiffs' attOrneys who approach pOtential clients in person is that it sometimes takes place in a semi-social setting among more affluem individuals. There is no legitimate ethical distinction. If we are com mined to prohibiting in-person solicitation, we are obligated to enforce the prohibition in all instances. Selective enforcement of the prohibition against this type of solicitation fails to accomplish the purpose of the rule. The abuses in the area of tort law are not limited to tactics by people seeking to represent potential litigants. One insurance company. claiming to be concerned for the well-being of its potential adversaries. dramatically overstepped rhe boundaries. This company initiated a practice of sending let· ters and other documents to people injured
ance company can be held accountable for the unauthorized practice of law in so many different jurisdictions, we can put a StOp to the activities of a group of individuals in Arkansas who are going well beyond anything this insurance company tried to do. The larger, more disturbing issue with respect to insurance companies is the extent to which they seek to control and manipulate the legal profession. just as they have succeeded in doing in the medical profession. There we have seen comrol seized over decision-making. wherein the judgement of bean counters has been substituted for {he professional. medical judgement of treating physicians. Having been successful in transforming tort reform (an oxymoron also known as tOrt deform) into a common political phrase. insurance companies now seek to practice law on both sides of the Bar. Having witnessed the once-unimaginable constraints that are now exercised over medical professionals and the subsequently negative impact on their patients. we wiU have no one to blame but ourselves if we do not come together as a profession and confront the fact that the same sights which were effectively trained on the medical profession are now trained on us as law practitioners. The unauthorized practice of law has long been prohibited. 3 bur there was a lack of clarity in terms of specifically what does and does not constitute the practice of law.
by policyholders which were designed ro
tice of law in personal injury cases and setS
persuade potential claimants that they should nor seek legal counsel. New York, West Virginia, and Connecticut have taken different actions against this practice, declaring it to be the unauthorized practice of law. Pennsylvania, Virginia. New Mexico, Illinois, Texas and New Jersey currently have action under consideration. West Virginia ended the practice by enjoining the company from sending these documents and Pennsylvania has endorsed the position taken by West Virginia. A class action lawsuit has been filed in Illinois alleging fraud and the unauthorized practice of law. A consumer fraud action is pending in ew Mexico. ew Jersey is proceeding along the same lines as West Virginia and in Connecticut. the legislature has passed a new law prohibiting any insurer from advising a potential claimant, either orally or in writing. that they do not need an attorney. The penalties include fines and forfeiture of insurance licenses.2 Surely if a major insur-
Arkansas Trial Lawyers Association's Legislation Committee and closely monitored by the Tort Law Committee of the Arkansas Bar Association, the statute classifies a first offense as a Class A misdemeanor and a second offense as a Class D felony. If a non-lawyer contracts a personal injury case with intent to obtain a direct economic benefit, the statute has been violated. Legal advice and direct solicitation. in person or by telephone, are prohibited under the statute if there is intent to obtain a direct economic benefit. 5 While protection of me public is our primary concern. we are also obligated to pro· tect ourselves and our colleagues from intrusions in the legal profession and our legal businesses. Again. we can be our own worSt enemy on this subject when we are embarrassed to admit that our businesses and the income they generate is important to us, along with the myriad of other issues engen-
Acr 1301 of 1997, now codified as A.CA. §16-22-501, defines me unauthorized pracpenalries for such conduct.' Drafted by Ihe
dered by the unauthori7...ed practice of law. We are hampered in our efforts to protect ourselves when we succumb to antiquated perspectives on the practice oflaw which are no longer applicable in the modern age. The idea that there is some conAict between the profession of law and the business of law is outdated and incorrect. Denying the importance of the business oflaw along with the profession of law is tantamount to burying our collective heads in the sand. Try relling your associates or staff members that salaries and benefirs are not important. Try telling the government thar regulation of business should not apply to us. The fact is, we are engaged in business and there is no reason to be apologetic. The notion thar there is some inherent ethical conAict between law as a business and law as a profession is simply nor true. That perspective is a holdover from the J 8th century English legal syscem where barristers were trained at the Inns of Court and had little financial need to work. They were often rimes disdainful of approaching law as a source of income, and remnants of that philosophical ourlook are srill wirh us. Bur today our society is vastly different, as is the profession of law. We are nOt among the privileged aristocracy. We need heaIrh insurance like everyone else. We want to send our children to good schools. We want our families to grow and we want life insurance to protect them when we are gone. We want to be able ro retire without burdening our children. We accomplish rhese things by engaging in both the business and the profession of law. \Xle hear much abom rhere being roo many arrorneys. This popular idea ignores
the fact that the dury falls upon us to resolve virtually every dispute in our society, from the smallest matter solved by a quick letter or short meeting. to matters of life and death. Withom attorneys. the parameters of our civilized society would disinregrare. Ir is essemial that we maimain our voice in the halls of Congress so that our judicial institutions and access to them are protected for our clients and for our profession. This can only be accomplished by ensuring the continued vibrance of our legal businesses by reigning in the proliferation of the unauthorized pracdce of law. As practicing arrorneys. if we are observant of the Model Rules of Professional ConduCl. as we muSt be. there can be no conAict between the business of law and the profession of law. They are one and the same. If. as a practitioner, one has more legal business than can be handJed competently. there are only n.. .o choices: expand the business or reduce the case load. Doing so keeps us within the ethical boundaries which govern us. In the legal profession, we are confronted each day with thorny new problems. As we address each new issue, rhe rules of ethics prevent us from placing the interests of our business ahead of the imerestS of our clients. The great beauty of our profession is that in placing our diems' interests and our ethical obligations ahead of all other considerations, the end result is the continued growth and success of our businesses. When a c1iem seeks to have us do or say something which is not within the consrraints of rhe ethical rules. we have co draw the line. Jusr as plaimifTs' attorneys must refuse a c1iem who wishes to make false claims. defense attorneys must refuse to bow
co the demands of insurance companies who insist on compromising the attorney's independent professional judgmem. Any porential conAict between our business and our profession is easily resolved through commitmem to the rules which govern us. Maintaining our clients' and our own legislative voice is extremely important if we are to survive the anti-lawyer sentiment which pervades the current social climate. To voluntarily relinquish any aspect of our profession to those who are unauthorized law pracritioners is the height of timidity and foolishness. We cannor allow erosion of our profession. It is ohen said that businesses which are not busy growing are busy dying and thus. the legal profession finds itself at a crossroads. Do we want atrorneys to be able ro work in the legal profession or ro be forced from i(~ Do we want jobs for paralegals and other support staff'? We are going to have to act rogether when we see intrusions inco our profession by those who would harm our diems and our businesses by performing legal functions that only a licensed attorney should perform. In a world where too many people want something for nmhing it should surprise no one that the practice of law would be encicing to someone who wants the benefits without paying rhe dues and completing the lengthy training. If we believe that the practice of law is a worthy endeavor which should only be practiced by those who are properly licensed, we must all be part of the continuing struggle co eliminate these dangerous and destructive imrusions inco our profession. The problem of the unauthorized pracCominued on Page 37
Registered Professional Engineer in 3 Sl.ales. 9 years of experience as President of large distributor specializing in all types of safery equipment, major emphasis on metal forming and stamping. II years of e.xperience as President of company involved in repair and rewinding of electric mOlOrs and manufacmre, sales, installation and servicing of electrical conlJ"ol p:l1tels for industry. 14 rears of e.xperience with General Electric Co. in engineering and industrial sales. Earned BS· Electrical Engineering in 1947. • Complete curriculum vitae and references on request.
••
rol. 11.10. I/Summrr 1995 Thr ,Ir~onll! LOlljrr 15
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Comillued from Page 35 rice aflaw can be solved by anaclung on several fronts: 1. we should begin by moving away from expressions of cynicism and sarcasm roward our fellow members of the Bar, in favor of murual respect, unicy and cooperation; 2. we need to gather credible evidence of violations of the law and present ir ro our local prosecutors; 3. we need to properly fund the Supreme Court Committee on the Unauthorized Practice of Law and actively pursue complaints against those who we believe have violated the rules; 4. we can develop recommended guidelines for the disciplining of attorneys; 5. we can utilize the resources of our state and local bar associations to fully investigate and expose inappropriate practices in the areas of in-person solicitation and the unauthorized practice of law; 6, we need to seek cooperation not only from attorneys on both sides of the Bar, but also from the insurance industry, which must cease efforrs to exercise control over the legal profession. The problem of unlicensed individuals negotiating claims on behalf of injured victims will end if insurance companies refuse to negotiate with non-lawyers. (It has been suggested that doing so constitutes aiding and abetting the commission of a crime as set forrh in §16-22-501.) Some of the more reputable insurance companies have already begun to refuse to talk with non-lawyer representatives. 7. And finally, it has been suggested rhat (he Arkansas Insurance Commission promulgate and enforce a regulation mandating that tOrr claims be negotiated only with the claimant,
a c1aimanr's family member, or an attorney. If we follow through with these suggestions, we will substantially resolve the problem of the unauthorized practice of law as it relates to tOrr law. The simarion demands a concentrated effort by every attOrney to eradicate the inappropriate activities of nonlawyers in all areas of law. By coming tOgether and fighting for and with one another as colleagues, we can drive a stake thtough rhe hearr of this problem.·:· EndNotes: I. Maggio, Michael A. and Maggio, Stephen J., CriminaJ and Civil Liability Under Recem AmendmentS lO the Fair Debt Collections Practices Act, The Arkansas Code and R.LC.O., THE ARKA SAS HEALTHCARE FI ANClAL MANAGEMENT ASSOCIATION, August 14, 1997. 2. Wend. Annette, More States Act Against AJlstate, ATLA Advocate, Vol. 24, No.3, 1-2 (April, 1998). 3. SeeA.C.A. §16-22-208. 4. See A.C.A. § 16-22-50 1. Prohibited Activities. (a) A person commirs an offense if, with intent ro obrain a direct economic benefit for himself or herself, the person: (I) Comracrs with any person to represent that person with regard to personaJ causes of action for property damages or personal injury; (2) Advises any person as to the person's rights and the advisability of making claims for personaJ injuries or properry damages; (3) Advises any person as to whether or nor to accept an offered sum of money in settlement of daims for personaJ injuries or properry damages; (4) Enters into any contract wirh another
person to represent thar p~rso'n in person;1 .injury or properry damage matters on a contingent fee basis with an attempred assignment of a portion of the person's cause of acrion; (5) Emers imo any contract, except a contraer of insurance, with a third person which purportS to grant rhe exclusive right to select and retain legal counsel ro represem the individual in any legal proceeding; or (6) Contacts any person by telephone or in person for the purpose of soliciting business which is legal in narure, as set forth above. (b) This secrion does nor apply to a person currently licensed to practice law in rhis srare, another srare, or a foreign country and in good standing with the Srare Bar of Arkansas and the state bar or licensing authority of any and aJl other stares and foreign countries where licensed. (c) Excepr as provided by subsection (d) of this section, an offense under subsection (a) of this secrion is a Class A misdemeanor. (d) An offense under subsection (a) of this section is a Class D felony if ir is shown on the rrial of the offense that the defendant has previously been convicred under subsection (a) of this section. (e) This section shall nor apply to a person who is licensed as an adjuster or employed as an adjuster by an insurer as authorized by §23-64- I0 I. 5. Id. at §16-22-50J. Brad Hmdricks is th~ OWll~r of Th~ Law OJfic~ of
Brad Hnuin"cks, which fotusa primarily 011 plainnfF P"JOnal injury cam. His trial work is in th~ arra of obstmlC malpmetic~ wlm-r h~ has obtain~d nummJUs multi-million dollnr vmiim mui smkmmrs.
RICHARD H. MAYS, Esquire ftrmrrly Acting Assistant Administrator for Enforcement and Senior Enforcement Counsel U.S. Environmental Protection Agency Washington, D.C. andftrmrrly Department Attorney Arkansas Department of Pollution Control & Ecology andftrmerly member ofThe Environmental Practice Group ofthe law firm of Venable, Baetjer, Howard & Civiletti, LLp, Washington, D.C., announces tilt opening ofhis law office.
H. MAyS, ENVIRONMENTAL LEGAL SERVICES 1500, 425 WEST CAPITOL AVENUE, LITTLE ROCK, (50l) 372-3310
RICHARD TCBY TOWER - SUITE
Litigation
ARKANSAS
72201
Practice limited to Environmental and Toxic Tort law: • Criminal Defense and Investigations • Regulatory Counseling • Transactions • Environmental/Audit/Disclosure Strategies • Mediation/Arbitration
1'01. 3310. 3/Solmrr 1998 1he ,Irklnsll Lillfrr 37
lOllllg Lilli ~ I'I'S
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Comments on Recently Undertaken YLS Projects by Gwendolyn Hodge, Chair, Young Lawyers Seclion
As the incoming chair of rhe Young Lawyers Section of rhe Arkansas Bar Association, I am looking forward ro this Bar year with great exciremcm and anticipa[1011. In looking back at rhe accomplishments of past Chairs of this Section, I have large shoes to fill. I accept this challenge. However, in doing so, I ask for your help. As I know rhe past Chairs would say. it cannot be done alone! I encourage and would hope that each of yOli gets involved in the Young L1wyers Section and Arkansas Bar Association activities. During the next year, it is my goal ro encourage and fostcr greater participation in the Young Lawyers Section. You will note that I did llor say "membership," for each Arkansas Bar Association member who has practiced law for five years or less or who is 35 years of age or less, whichever comes last, is auromatically a member of the Young Lawyers Section. There are no section dues ro pay. Projects of the Young Lawyers Section include the following: I. Bridging the Gap Seminar. The Bridging the Gap Seminar is a nuts and bolts approach [Q the practice of law. This seminar teaches you what yOll probably djd not learn in law school and will need to know [Q practice law. It also serves as a refresher for seasoned lawyers. 2. Law \Veek Essay Comest. In conjunction with Law \Veek, the Arkansas Legal
Secretaries Association and the Young Lawyers Section sponsor an essay contest for 7th graders across the state. Each year the topic relates to the judicial system. Disaster Relief. The Young 3. Lawyers Section has developed a Disaster Relief plan through which lawyers provide pro bono legal assistance to disaster victims. Last year, Chair SCOtt Morgan expressed an interest in developing a Hospice Program. The Hospice program would provide basic legal services to the terminally ill. SCott and Jonann Roosevelt have been working throughout the year on this project and I look forward to our continuing work on this project. This year, the Young Lawyers Section will form a Speakers Bureau [Q address the proposed Constitutional Amendment on retired judges being used as special judges. Particip~tnts in the Bureau will speak at civic organizations and other organizations educating the public abom the proposed amendment that will be on the November
bailor. Volunteers are needed for the Speakers Bureau and all other projects. I encourage you and ask you to volunteer. How do you volunteer? It is as easy as contacting your district representative, the Arkansas Bar Association, or me. And, if you have ideas, comments, or suggestions, I encourage you to do the same. Bar panicipation is a great way to become
The Arkansas Freedom of Information Act Third Edi tion Professor John Watkins A new and updated edition of this important book, published June 1, 1998. More than 470 pages of essential information on access to records, open meetings, enforcement issues, and use of the FOIA as a discovery device. An essential reference for attorneys and public officials, PRICE: $24,00 + $3.00 shipping/handling, Orders may be faxed to M & M Press at (501) 582-4265 or mail to M & M Press, P.O. Box 338, Fayetteville, AR 72702. If you wish to use VISA or Mastercard, mail or FAX credit card information,
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reacquainted with classmates who are near and far, to make new acquaintances, as well as a way to serve both the profession and the community. Again, I encourage and ask you to join me in making this a successful Bar year.•:. Law Office Technology
Cominued from Page 9 you). There are new document assembly fields that list the lawyers associated with each file, contaCt, event or time entry. Finding someone on your comact list is easy. Each column on your contact list (name, company, phone, etc.) has a header button that makes it easy to sort the listed COntaCts. To help prevent the creation of duplicate contacts, Amicus Team now has a preference to prompt for a Team contacts search whenever yOli add new contacts. Statistics are carried forward from one year to the next and the statistics setup interface lets you specify how much rime you have accumulated from the start of the fiscal year up to the time you started using Amicus Anorney. The software also has an electronic 'stickies notc' feature to send messages between attorneys and paralegals if your office is networked. PcLaw "links" with Amicus so that aU of your time automatically translares imo a billing to your diems if you prefer. It also writes checks, and again this "one-write" system automatically plugs in the numbers in the right places for proper accounting of your expenses and truSt monies held. My biggest frustration with .111 of these software packages is the technical support you obtain. Because of their popularity, you can depend on holding for any suppOrt at least (en minutes. Since PcLaw and Amicus have only been around for jusr a few years and they conrinue to grow so fast, hopefully my frustrations with the technical suppon represents only "growing pains." Obviously, they will also be replaced unless this is improved no maner how great their software for lawyers.•:.
Continued From Page 22 2.
3. 4.
25.
HrnJky If. &Jrm1ltrl, 461 U.S. 424. 433 (1983). 1"G""tblJ Dro, I'll'. If. urki". 749 F.2d 945. 950
18.
Cir. 1984). TheM: twelve guidelines were first M:l fonh in jolJ1lw" v. Grorgia Highwny ExpmJ, IIIC., 488 F.2d 71 (Sth Cir. 1974). The Eighth Circuit aplUSly adopted these- guidelines in Win Crnur, Nrbnukll, Inr. j.t Tho"" 645 F.2d 645 (8th Cir. 1981). Hrnsky« &Jrahart, 461 U.S. 424, 434 (1983). Id. at n. 9. P/"rosomphonr v. Alliw" &rd Group, I"c., 984 F.2d 4 (lSI Cir. 1993). MrDonald v. Armomrour. 860 F.2d 1456. 1459 (8rh Cir. 1988). At-'ll/on CinmuJ Corp. v. Thompson. 689 E2d 137. 140 (8th Cir. 1982). BI",m If. StntJiJn, 465 U.S. 895-96 n. 11 (1984). Itl al 897. Gilbmv. CilJofLmkRork, 867 F.2d 1063, 1066 (8th Cir. 1989) rm. dn/ird, 493 U.S. 812 (1989). HnuUy If. l:..Clurhart, 461 U.S. 424. 437 n. 12 (1983). It/. at 440 (concurring opinion). It/. at 441. H.j. Inc. If. FlJg1 Co'!'., 925 F.2d 257. 260 (8th Cir. 1991) quoting Hrmky. 461 U.S. al 437. hi.
19.
Nlluo",,1 Au;' ofConrnn«l Vnm:l'nJ
(lSI
5.
6.
7. 8. 9. 10.
11. 12.
13. 14. 15. 16. 17.
1Jif"mn. 675 E2d
20.
21.
22. 23.
24.
/.!.
S«mllry tlf
1319. 1327 (D.C. C;,. 1982). Scc: r.g., G"ndrli Dm, htr., v. urltin. 749 F.2d 945.952 (lsI Cir. 1984); Ramos v. I..m"m, 713 F.2d 546. 553 (10th Cir. 1983); and Nrw }'/:l,k Stair AJS'" fOr &tartkd Childrnl, Inr. u. Carry. 711 F.2d 1136. 1148 (2d Cir. 1983). Additionally, in one of the morr egregious cases of billing abuses, K«nl'T u. lRpnrrmmt ofArmy. 55 FEP Cas. 200 (M.D. Tenn. 1991). the court disallowed all anorney's fees and imposed Rule' II sanctions on the anorney for his billing practicc:s. 5« r.g., National Asin of Conurnrd Vnrmns u. &rrrtllry of Drftnu, 675 F.2d 1319, 1327 (D.C. Cir. 1982) (insufficient ro provide the disrrict court with ve:ry broad summaries of work done and houTS logged thai do nOl offe:r any actual description of th~ nature or purpose of the: activity); Paxron u Union Natl Bank, 806 F.2d 785 (8th Cir. 1986) (allowing reduction of ftt award for all houTS nOl propc=rly documented); and H.j. Inc. j.t FIJt! 0>'1'.. 925 F.2d 257. 260 (8,h C;,. 1991) (billing records induded numerous time entries such as Alegal rese-arch" or "trial prrpar:nion- or "met w/cliem" that werc~ so vague that district COUrt could not dC=lc=rmine with cerraimy whether they wert: rrlatro to Ihis litigation). H.j.lnc. v. Flygt Corp., 925 F.2d 257, 261 (8th Cir. 1991). Some block billing c:a.se:s includ~ Drokr v. Pmin, 593 F. Supp. 1176, 1178 (E.D. Pa. 1984) (COUrt held that block billing made it impossible: to sepaTate: the propc=r claim from the: impropc=r and con· seque:nuy dc=cided that :1.Il unanalyz.ed allocation of houTS was not pc=rmissible in arriving at the lodesur and disallowro all block billro hours); Mmo Data SpumJ, Inc. v. Durango SJIwm, Inr.• 597 E Supp. 244 (D. AriL 1984) (combined time for different activities does not give court any guichnu as to how much time: was dn'oted to each activity): and So," u G. 6- U. Inr.• 801 F. Supp. 1056 (S.D.N.Y. 1992) (coun disallowed all block billed entries because the commingling of activities within one lime c:mry impedes rhe coun's c:frOrt 10 ('V:dU31C: Ihe reasonableness of any of the' listed activiriC'S). H,,"I'1 v. Erkmw,.461 U.5. 424. 433-34 (983).
26. 27. 28.
29.
Id. quoting Co~lAnd If. Marshall, 641 F.2d 880, 891 (1980) (en bane) (emphasis in original). Grrrubli lRn u IAnin, 749 F.2d 945. 953 (1st Cir. 1984). Mrrro Data SYltrms, Inc. v. Durnngo SylUmJ, bu., 597 F. Supp. 244. 246 (D. Ariz. 1984). For example, in Davis v. SEPTA, 735 F. Supp. 158 (E.D. ~,. 1990) ajf'd924 F.2d 51 (3d Ci,. 1991). tht pbintiff sought approxim:uely S6OO.oo0 in w.m:llgd in an employment discrimination casc:. The jury awardc:d her 10,000 in damages and her attorney asked the coun for a ftt award of SI18,5oo. The court said: "There is somerhing wrong with spc:nding $118.500 to receive:ll rccov· ery of 10,000. This amount simply is not re:150n· able in relation to the results obtained." 735 E Supp. at 161. Wintl'T If. urro Gordo Co. ComlTl!lllion &I., 925
F.2d 1069. 1074 (8th Cir. 1991): P.mon v. GTE North, Inc., 971 F.2d ISO. 156 (8th Cir. 1992): UJtg'nJ u Drlo, 999 F.2d 364 (8th Cir. 1993). 30.
31. 32. 33. 34.
35.
For e'Xample, in Title VII cases. e'Xpc:n fe:es an~ recoverable as cOSts. See 42 U.S.C.S. §2000e-5(k) (Cum. Supp. 1997). This is nor necessarily true in all ftt-shifting Sl"JrUles. IWmOf u umm, 713 E2d 546 (10th ir. 1983). Entmainmfflt Conrrpn /fl, 1m". v. Mllri9~.Jri, 514 F. S,pp. 1378. 1382 (N.D. III. 1981). Cok« Williarm, 624 E Supp. 712. 720 (WD. Ark. 1985). ajf'd798 E2d 280 (8,h C;,. 1986). Et.'tltufJ. F",IIP, 94 ER-D. 311.313-14 (W.O. Ark. 1982). MlIrpJJty v. AmMO Produrt;on Co.. 558 E Supp. 591, 594 (D.N.D. 1983) ajf'd729 F.2d 552 (8,h Cir. 1984).
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Advisory Ethics Opinion Issued on Ownership of Land Title Company Advisory Ethics Opinions may be issued to members of the Arkansas Bar Association in certain situations. Members interested in securing such an opinion should contact Don Hollingsworth, Arkansas Bar Association Executive Director, for the requirements which must be met. There is a 550 administrative charge for each opinion.
ADVISORY OPI 10 98-01 Date: June 8, 1998 Subject: Ownership of Land Title Company
FACTS:
everal arrorneys in different firms and one non-lawyer propose (Q set up and own a Title Insurance Plant, Escrow and Closing Company. Pursuant ro a wrirten agreement, the owners will have an interest in the fixed assets and will be compens:ued based on rhe business referred to the company. The proposed company will maintain a compmer base of properry records. compile tide his[Qries and provide loan closing services. In addition, as an agem of a national title insurance company, the proposed company will issue title insurance policies. The proposed company will nor issue tirle opinions or ririe certificates (Q lenders or other interesred parries. The issues presented to this committee are: I. \'(Ihether a lawyer in private practice may
own a land title research and escrow company; 2. Whether lawyers in different firms may jointly own such a company; 3. Whether the presence of a non-lawyer as a parr owner bars or restricts the participation of attorneys; 4. What restrictions, if any, are placed on the anorneys.
THE RULES: The applicable rules ate: Rule 1.7(b) of the Arkansas Rules of Professional Conduct: "(b) A lawyer shall nOt represent a client if the representation of that client may be
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materially limited by the lawyer's responsibilities to another c1iem or to a third person, or by the lawyer's own interests, unless: (I) The lawyer reasonably believes the representation will not be adversely afftected; and (2) rhe client consents after consultation. When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved." Also relevant is Comment 6: "The lawyer's own interests should not be permirred to have adverse effect on representation of a c1iem. For example, a lawyer's need for income should nor lead the lawyer to undertake matters that cannot be handJed competently and at a reasonable fee. See Rules 1.1 and 1.5. If the probity of a lawyer's own conduct in a transaction is in serious question, it may be difficult or impossible for the lawyer to give a diem detached advice. A lawyer may not allow related business inrerests to affect represen~ tarion, for example, by referring clients to an enterprise in which the lawyer has an undisclosed interest." Rule 1.8(a) governs business relations between attorneys and c1iems: "(a) A lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory. securiry or other pecuniary interest adverse to a client unless: (I) rhe transaction and rerms on which the lawyer acquires rhe inrerest are fair and reasonable [Q the diem and are fully disclosed and transmitted in writing to the client in a matter which can be reasonably understood by the client; (2) the client is given a reasonable opportuniry to seck the advice of independent counsel in the transaction; and (3) the client consems in writing thereto." Comment I provides: "As a general principle, all transactions
between c1iem and lawyer should be fair and reasonable [Q the client. In such tramactions a review by independent counsel on behalf of the c1iem is often advisable. Furthermore, a lawyer may not exploit information relating [Q the representation [Q the client's disadvantage. For example, a lawyer who has learned that the c1iem is investing in specific real estare may nor, without the client's consent, seek [Q acquire nearby properry where doing so would adversely affect the diem's plan for investmemo Paragraph (a) does nor, however, apply to standard commercial transactions between the lawyer and the c1iem for prodUCt or services that the client generally markets [Q others, for example, banking or brokerage services, medical services, products manufactured or distribuced by the client, and utilities services. In such transactions, the lawyer has no advantage in dealing with the dient, and the restrictions in paragraph (a) are unnecessary and impracticable."
D1SCUSSIO : I) The protection of a client's title to land has historically been the practice of law and has been accomplished through a title opinion. American Bar Association Formal Opinion 331 (1972). However, the development and growth of title insurance companies and similar entities have raised questions as to the attorney's participation in them. A minority of jurisdictions have concluded that the conflict between an attOrney representing a client and simultaneously having a financial interest in a parricipating title insurance company is so great rhat the conflict cannot be waived. (In rt Opinion
682 ofth. Advisory Committu Olt ProftssiOltol Ethics, 687 A. 2d 1000 (New Jersey 1997)) ("The purchaser of title insurance seeks the maximum possible protection, while the tide company strives to limit liability in the event of a claim under the policy. \'(!here exceptions are negotiable, consent, no matrer how well informed, will not remedy the confliCt of interest.") However. the consensus has been thar an
anorney. while nill protecting the imerests of a c1iem. may be an agem for a tide company and be compensated in connection with the insurance [issuance] of a policy. The opinions are clear that an anorney may not receive a fee or commission (delayed or not) for recommending or selling title insurance without fully disclosing to the c1iem the anorney's financial interest in the transaction. American Bar Association FormaJ Opinion 331 (December 15, 1972); American Bar Association Formal Opinion 304 (February 16, 1962). The potential conflier of interest arising from the 3[[orney's financiaJ interest and the resulting effect on the independent professional judgment of the attorney mandates disclosure roo and consenr from the client. Ark. R. Prof. Conduct 1.7(b). 2) 0 rule of professionaJ conduct bars anorneys in differem firms from owning and operating a separate business. \'({hether it be a restaurant or a title insurance company. these attorneys are permitted to jointly enter into such an enterprise. 3) Attorney and non-lawyers are permitted ro engage in commercial enrerprises, provided the business does not engage in the practice of law. Ark. R. Prof. Conduct 5.4(b). A corporation cannot practice law, cannot furnish legal services or advice, and cannot render legaJ services or any kind. Ark. Code Ann. § 16-22-211 (a). But subsection (d) does permit a corporation to engage in the "examination and insuring of titles to real property." The issuance of title opinions by nonlawyers has long been held to be the unauthorized practice of law. Beach Abstract & Guamn", Co. v. Ark. Bor As",., 230 Ark. 494,326 S.W: 2d 900, (1959). 0 advisory opinions from the Supreme Coun Committee on the Unauthorized Practice of Law have varied from the rule in Beach Abstract. Unlike a title opinion. which is aJl inclusive and gives an opinion as to the stanis of the land going back to the original patenr, the tirle certificate covers the land, bur does nor certify title [Q the severable aspects of the land (minernl, timber, oil and gas rights) and the cenihca<e only goes back a prescribed number of years. This company does nor intend to issue either title opinions or tirle certificates. 4) (A) Disclosure by Attorney Rule 1.8(a) governs business transaccions with clients. A client has a special trust in, and is frequently dependent upon, the inde-
pendent judgment of the lawyer, which is to be: exercised in the diem's best interest. The possibility of referral of legal clients (0 another business of the lawyer introduces an exuaneous and potentially confliC[ing motive, which can threaten or imerfere with the lawyer's independence of judgmenr. The dual relationship of an attorney represeming a c1iem and also having an imerest in the title insurance company that will issue title insurance is a closer relationship and a relationship with more risks to the c1iem than the nandard commerical transaction envisioned by the Comment to Rule 1.8. See generaJly, Howard \Y/. Brill, "Business Transacrions with Clients: Ethical or 111Advised?", Arkallsas Lawyer (Wincer 1995) 28. It is difficult, if nOt impossible, for an anorney to maintain the degree of independence and objectivity necessary co serve an individual client, when the attorney is aJso an owner and perhaps an employee of a land ritle company that is involved in the transaction for the individual client. The client is entitled to know thar the lawyer has an ownership interest in a title company, and that the title company will be making a charge for the services provided. Therefore, the committee concludes that an attorney may refer a client to a tide insurance company owned in parr by the attorney. only if the atcorney has disclosed in writing that the atcorney has an ownership interest in the business, and that the same services may he obtained from other providers, and only after the client has acknowledged the same in writing. See Nell)
Jersey Supreme Court Advisory Committee on Proftssional Ethics, Opinion 657Lf the attorney who is providing services for a client also provides services for the company in regard co the same rransaction, the potemiaJ conflict must be analyzed by the arrorney in light of Ark. R. Prof. Cond. 1.7(b). Only after successfully navigating the requirements of thar rule can the anorney represent both the client and the company. (B) Disclosure by Company Rule 5.7 of the Model Rules of Professional Conduct, as adopted by the American Bar Association in February 1994, covers "the responsibilities regarding law related services." The proposed land title research and escrow company falls within the definicion of such services. Although the rule has not been adopted in Arkansas, it is consistent with the exisring rules and
interpretations. If the lawyer individuaJJy or wich others has control of the operations of a law-related emity, the Rule requires the lawyer co take "reasonable measures to assure that a person obtaining the law-related services knows that the services provided by the separate entity are nor legal setvices and that the Rules of Professional Conduct that relate to the c1iem-lawyer relationship do not apply." This committee adopts thar mandate. The burden is on the attorney, through the company. to communicate that information to the recipient of the law-related services prior to an agreement for such services. The information should be communicated in a reasonable way, in light of the services and in light of the nature of the client. (C) Litigation Of further concern are situations where the attorneys which have an ownership inrerest in the tirle company oppose each other on behaJfof c1ienrs. At least three primary scenarios presem themselves. First the litigation is related to the land and ro the services provided by the company, as for example. in a dispure over warranties of tide. Second, the litigation involves the land, but not any services provided by the company, as for example, in a dispute over trespass upon the tract. Third, the litigation is unrelated to the land, as in a personal IIlJury case. In all three situations, because the possibility of conflicr exists. the anorney must evaluate the situations by the three party tCSt of Rule 1.7(b): whether a reasonable attorney would undertake the representation, whether the client has received complete disclosure of the role of both attorneys in the company, and whether the client has knowingly consemed. In the first rwo situations, it is difficulr to see an attorney, pursuanr to the reasonableness standard of Rule 1.7(b), concluding that such representation would be permissible. In the third situation, the possibility of a conflict exists between the opposing a([orneys, not with the land or with the clients. Although unlikely, it is conceivable that the attorney may nor be as zealous because his business partner is the opposing attorney. Therefore Rule 1.7(b) requires that, after having concluded thar representation is permissible by the standards or a reasonable attOrney, the attorney must make a full disclosure of the corporate involvemcl1t with See Page 51
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.Iudil'iill .\(h·isol·~· Opinions Tlu Judicial Advisory Opilliom ar~ writtm alld provided by tlu Arkansas Judicial Ethics Advisory Committu. MILAS "BUTCH" HALE, III herwood. Arkansas The Arkansas Judicial E,hics Advisory Commirree recently issued an advisory opinion to Milas "Butch" Hale, III, a municipal court judge in Sherwood, Arkansas. Judge Hale asked whether a parrtime municipal court judge in Pulaski Counry should terminate his current represemation of clients with criminal cases pending in the Pulaski Coumy Circuit Courts. The Judicial hhics Advisory Comminee considered this question to he a follow-up of their recent Advisory Opinion, 98-02, in which they concluded that a municipal judge, as a continuing part-time judge, should nor accept representation of criminal defendants in the circuir in which rhe prosecuting .morney, who appears before the
judge, has jurisdiction. Ar the time of rhe issuance of that opinion, Judge Hale, in his capaciry as a private attorney, was involved in the represemarion of such a criminal defendant. Secrion D of the Application Provisions of rhe Code of Judicial Conducr recognizes thar a judge can and should comply wirh some provisions "as soon as reasonably possible." Ir was the Commirree's opinion thar the representation resrriction should apply prospecrively. Accordingly, Arrorney Hale could continue his representation in pending maners.
JAY C. MIL ER, ESQ. Eureka Springs, AR The Arkansas Judicial Ethics Advisory Commirree recently issued an advisory opinion to Jay C. Milner, Esq. Mr. Milner is a candidare for judicial office from Eureka Springs, Arkansas. Mr. Milner asked rhe Commirtee if he would be in violation of the Code of Judicial Conducr by making pledges and specific campaign promises
I PAUL D. MrXON, Ph.D, P.E.
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wim respecr to changing or improving court administration should he be elected. The Judicial Ethics Advisory Comminee was of the opinion thar Mr. Miner may state general changes or improvements in COUff administration. However, he should not state specific terms.
PAUL R. BOSSO Eighreenth Judicial Districr The Arkansas Judicial Ethics Advisory Comminee recemly issued an advisory opinion ro Paul R. Bosson, Prosecuting Arromey Eighteenth Judicial District. Mr. Bosson asked whether it is proper for a municipal judge with jurisdiction over cases wherein the rare (as represemed by the prosecuring arrorney) regularly appears to represenr defendanrs in other municipal or circuit courts where the same prosecuting anomeyalso represents the State? The opinion found rhar ir would be improper for a municipal judge to represem criminal defendants in other municipal or circuit courtS where rhe same prosecuring atrarney also represents the Stare. The Judicial Ethics Advisory Commirtee was of the opinion chat an individual who accepts the posirion of a cominuing parrtime judge places the judicial office first in service and priority, and certain restrictions must follow. It is, rhey believe, self evident rhat a municipal judge who is engaged in an adversarial role opposing a prosecuting arrarney in a criminal case brought by the State and who presides over proceedings involving thar same prosecuting anomey is in an untenable position. however principled that individual may be. Acting as both judge and jury, the municipal judge has significant discrecion in dealing with the prosecuting arrorney. To oppose that same attorney in another matter creates an appearance of impropriety which is prohibited by the Code of Judicial Conduct. The opinion concludes thar under such circumstances and in the perception of reasonable minds, the abiliry of municipal judges ro carry out their responsibiliries with inregriry, comperence and impartialiry could he impaired. It follows that the inirial responsibility rests on the municipal judge ro decline the personal representation ofa criminal defendant in the circuit within which rhe prosecuring anoency has jurisdiction .•:.
til\\JeI' The Lllwyer disciplinary actiolls are wrirtell (lIId provided by 'he Supreme COllrl of A rkallsas , Commillee 0/1 Professiol/al Conduet. MR. DAVIS HENRY LOFT1N West Memphis, AR A lener of Tc:primand was issued to Mr. Davis Henry Loftin for the violation of Model Rules J.2(d), 3.3(a)(l) and 8.4(d) based upon the Complaim Before the Committee. The lener of
reprimand was filed with the Clerk March 13, 1998. These Rules stare, in parr, that :t lawyer sh;lll not counsel a c1iem to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent; that a lay,fyeT shaJl not knowingly make a false starcmem of material faCT or law ro a tribunal; and, a lawyer shall not engage in condun that is prejudicial to rhe administration of justice. On December 16, 1996, the Honorable William Houston Brown, United Srates Bankruptcy Judge for the Western District of Tennessee, filed a complaim against Loftin regarding his actions in the representation of debtor Laurarener Crowder, United Stales Bankruptcy COLIrt Case No. 96-35720. Judge Brown's complaint explained that in Ms. Crowder's b::lnkruprcy petition, Lofrin asserted that Ms. Crowder had been domiciled or had a residence in the Western District of Tennessee for 180 days immediately preceding the date of the filing of rhe petition. The bankruptcy petition showed Ms. Crowder's address to have been 223 Lee Street, Earle, Arkansas. Loftin signed the bankruptcy petition on November 20, 1996, and caused the petition to be filed on November 22, 1996. Shortly after the commencement of the bankruptcy action bur prior to December 3, 1996, a creditor of Ms. Crowder's repossessed her vehicle. Loftin then filed a Complaint to Compel Turnover of Certain Property from Defendam and for Sanctions. A hearing on the Motion was rhen held before Judge Brown on December 5, 1996. Following prescntation of the cvidence. Judge Brown dismissed both the Complaint and the Bankruptcy action because Ms. Crowder confirmed in her testimony that she was a resident of Arkansas. Ms. Crowder's testimony failed to presem a basis for venue in the U.S. Bankruptcy Court for the \'(festern District of Tennessee. [n Loftin's explanation to the Court, he stated that he and his cliem were concerned about the likelihood that his client's vehicle would be repossessed. Because it was quicker to drive across the Mississippi River and file the Petition with the U.S. Bankruptcy Court for the Western District of Tennessee in Memphis rather [han driving to Little Rock, he allowed Ms. Crowder to sign the Bankruptcy Petition, under penalty of perjury, and stated that rhe information contained therein was true and correct. In his Order which denied his complaint and dismissed Ms. Crowder's Bankruptcy case, Judge Brown found Lofrin's actions to have been improper and an abuse of the bankruptcy system. For his response, Loftin sr::ued thai he represenr-
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cd Ms. Crowder and thar when she came to his office her car was about to be repossessed. Even though he knew that Ms. Crowder did not live in Tennessee, he believed that she was permiTted ro relief file in any other bankruptcy district if the other bankruptcy district were more convenient. He asserted that he did not violate Model Rule 1.2(d) as he did not counsel Ms. Crowder to do anything criminal: Ms. Crowder's Arkansas address was listed on rhe Pctition; the case proceeded in the same manner as if rhe case were filed in Arkansas; no creditor was misled as to Ms. Crowder's address; and, no rights or defenses were asserted thai would not have been available in Arkansas. In regard to Model Rule 3.3(a){I), Loftin asserted that there were three places on the bankruptcy petition for an attorney to sign. The first requires an anorney to state whar he was to be paid. Lofrin stated that he provided that information. The second signature requires an affirmance by an anorney that a debtor is eligible for relief under the Bankruptcy Code. Loftin then stated thar Ms. Crowder was eligible for such relief and that she did request relief under the code. The third signamre, he asserted, requires the attorney to state that he advised the debtor of dle different forms of relief available. He stated that he did so. Because he signed in the appropriate places on the bankruptcy petition for the stated limired purpose, be averred that he did not make a false statement to any tribunal. In regard to Model Rule 8.4(d), be asserted rhat the filing of the bankruptcy petition in the inappropriate forum was not prejudicial ro the administration of justice. He stated that had the Bankruptcy COUrt transferred the case to the appropriate venue, Ms. Crowder could have pursued her claim in the Eastern District of Arkansas. He added that even though the Bankruptcy Court for the Western District of Tennessee was inconvenienced, Ms. Crowder did file a Bankruptcy Petition in Arkansas and the administration of justice was accomplished although it took a little while longer.
MR. FLETCH ER LONG. JR. Forresr City. AR A letter of caution was issued to Mr. FletCher Long, Jr., for the violation of Model Rules 1.3 and l.4(a) based upon the complaint of Charles Thomas
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Bridges. The letter of caution was filed wirh the Clerk April 29, 1998. These Rules slate that a lawyer shall act with reasonable diligence and promptness in representing a client and a lawyer shall keep a client reasonably informed about the status of a matter and promptly comply wirh reasonable requests for information. In his complaint, Mr. Bridges SIated that he employed Long in Septcmber 1990 to represent him in a dispute with Ross Ford-Mercury. Suit was filed by Long on Mr. Bridges' behalf in October 1990 and answered timely by the defendant. [n February 1991, a cross-complaint was filed and an answer was timely filed by Long. Since February 1991, Mr. Bridges has made attempts ro meet wirh Long and discuss the case, but Long would be unavailable to speak with him. Mr. Bridges provided a copy of the docket sheet which reflected that [he case was continued every quarter for six years. Three cntries on the docket sheet showed that the case was dismissed. On March 5, 1995, an entry was made on the docket sheet reading "D.W.O.P.L.P." which was believed to stand for Dismissal Without Prejudice for Lack of Prosecution. An entry made June 28, 1996, stated "Per Pit dismissed wlo prejudice." A third entry to the docket sheer was made 011 September 25, 1996, which stated that action in the case was required on or before October 7, 1996. The docket emry reflec[ed [hat a copy for that notice was mailed to Long's office on the same date. On November I, 1996, an Order of Dismissal was entcred which stated "By agreement of rhe Plaintiff and rhe Defendant, this case is dismissed without prejudice." Mr. Bridges did nor consent to the case being dismissed and was not informed of his action. For his response, Long asserted [hal he was sympathetic to Mr. Bridges' plight and agreed to represent him even though he could not pay a retainer. Mr. Bridges had a habit of dropping by the office unannounced to talk with him and he [ried to see him. Long admitted that there may have been occasions when he could not meel with him. Following the filing of the counter-claim by Ross Ford-Mercury, Long asserted that M r. Bridges was advised that he would continue to pursue the matter blll that he believed that the counter-claim placed him in a defensive position rather than an offensive position. A1> a result, Long continued to See Page 44
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make appearances in Circuit Court on Mr. Bridges' behalf [0 prevent Judgment from being raken against him. He stated that he evenrually reached an agreement with rhe anorney for Ross FordMercury whereby both the Complaint and the Counterclaim would he dismissed. This was then explained to Mr. Bridges by Long. Long then believed the matter to then be concluded.
MR. DAVID MARK GUNTER Hope, AR A letter of reprimand was issued to Mr. David Mark Gunter for the violation of Model Rules 1.3 and 8.4(d) based upon the Per Curiam complaint on appellant Wilbert Muldrew. The letter of reprimand was filed with the Clerk April 29, 1998. These Rules state, in pan, that a lawyer shall act with reasonable diligence and promptness in representing a client; and, a lawyer shall nOt engage in conduct that is prejudicial to the administration of justice. Following Gunter's client's conviction on January 28, 1997, Gunter timely filed a Notice of Appeal. Subsequently, he failed to timely file a brief despite having received twO extensions of time within which to do so. The Clerk directed written inquiry to Gunter aboU[ the sta[Us of the case. On Gaober 13, 1997, Gunter called the Clerk and responded that he would file a Morion for Belated Brief within ten days. When he failed to do so, on November 13,1997, the Court issued an Order to Appear and Show Cause why he should not be held in contempt. At the hearing held on December 4, 1997, he pled guilty and was fined $250. Ultimately he did file a brief. The Per Curiam complaint was sent to Gumer by certified mail, restricted delivery, on January 2, 1998. Gumer signed for the formal complaint on January 8, 1998. He failed to provide the Committee with a response to the allegations within the 20 days provided by Section 5 of the Procedures of the Arkansas Supreme Court Regulating Professional Conduct of Attorneys at Law in effect at that time.
MR. ROBERT B. LESLIE Little Rock, AR A lener of reprimand was issued co Mr. Roben B. Leslie for the violation of Model Rules 1.13, 1.4(b) and 8.4(d) based upon the complaint of Joseph W Brown. The lener of reprimand was filed with the Clerk on April 28, 1998. These Rules state that a lawyer shall act wirh reasonable diligence and promptness in representing a cliem; a lawyer shall explain a maner to the extent reasonably necessary ro permir the client to make informed decisions regarding the representation; and, a lawyer shall not engage in conduct thar is prejudicial to the administration of justice.
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Mr. Brown hired Leslie during June of 1995 to represent him in a bankruptcy proceeding. At the time he filed bankruptcy on Mr. Brown's behalf, he was the defendant in twO pending lawsuits. During the course of the bankruptcy proceeding, a motion was filed by the special counsel for the bankruptcy estate wherein it was requested that the special counsel be allowed to compromise and settle one of rhe pending lawsuirs. Mr. Brown had an objection to the proposed compromise settlement and he advised Leslie of his objeaion. Leslie, then, took the appropriate steps to file Mr. Brown's objection and give the other parties notice of the same. Thereafter, a hearing was set on the motion and objection with nmice of the hearing being sent ro Leslie and the other four attorneys involved in the mauer. Nmice was not sent to Mr. Brown by Leslie nor by court personnel. Leslie did not auend the hearing on Mr. Brown's behalf. As a result of the failure to auend, Mr. Brown's objection was dismissed for failure to prosecute and the Compromise Settlement was approved causing Mr. Brown a purported loss of $28,000. Ir was several months after the Order dismissing the objection was emered before Leslie contacted Mr. Brown to advise him of his "oversight." Mr. Brown's recollection is that Leslie admiued to him that he "screwed up" and offered free legal services because of his inaction. Because of what Mr. Brown calls his irresponsibility, he had no mecllOd available to him by which he could recoup his purported loss or challenge the Compromise Settlement. In his affidavit of response, Leslie acknowledged rhat he represented Mr. Brown and also thar he filed an objection to the proposed compromise settlement on his behalf. According to him, he heard very liule from Mr. Brown <:fter he filed the objection. He asserted that when he finally spoke with him, Mr. Brown told him that he was talking direcrly with the trustee; that he had a new telephone number; and, that he had no permanent place to stay. He averred that he did not receive notice of the hearing and that was the rcason neither he nor Mr. Brown were present. According to his response, when he received a copy of the Order Approving rne Compromise Settlemem, he prompdy sem the same to Mr. Brown. He asserted that Mr. Brown did not comaet him within the time allowed to file a Motion explaining that he had nor received notice of the hearing. Because he did not hear from Mr. Brown, he assumed that he did nOt wish to prosecute the objection. He provided a copy of the Order to Mr. Brown. In his transmittal memo scm with the Order he advised Mr. Brown to contact him, but nowhere in the memo did he advise Mr. Brown that rhere was a chance of overturning the Order based upon lack of notice. When he did speak with Mr. Brown, Leslie said he advised him that he did want to prosecute his objecrion. Leslie asserted that he checked with the bankruptcy trustee who said he would stand by the expired time because he had no inrcresr in revisiting the serrlemenr. When Leslie explained this fact to Mr. Brown, he told him that he felr very badly but he did not accept responsibility.
MR. ROBERT DAVID LEWIS
Little Rock, AR A letter of caution was issued to Mr. Raben David Lewis for the violation of Model Rules I. I, 4.2 and 8.4(d) based upon the complainr of Larry Via. The letter of caution was filed with the Clerk on April 28, 1998. These Rules state, in part, that a lawyer shall provide competent represemation to a client, to include the legal knowledge, skill, thoroughness and preparation reasonably necessary for the represenration; in representing a client, a lawyer shall nor communicate about the subject of the representation with a party the lawyer knows to be represemed by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so; and, a lawyer shall not engage in conducr that is prejudicial to the administration of justice. In his affidavit of complaint, Mr. Via explained that in October of 1996, he received a letter from Lewis concerning his ffimher, Bonnie Bishop. Mr. Via is his mother's guardian. He was appointed as such after she had been declared incompetent in 1990. Subsequent to 1990 and prior to Lewis' involvemem, Mr. Via's mother's incompetency was reviewed on three occasions. The purpose of Lewis' lerter was to obtain Mr. Via's signature on a medical authorization which would have enabled Lewis to acquire his mother's medical records. After Mr. Via received his letter, he learned that he had been to the Benton Services Center ro see his mother and had also received funds from her. Mr. Via responded to his letter on October 28, 1996. In his response, Mr. Via refused to sign the medical authorization provided by Lewis and explained to him the basis for his refusal. In addition, Mr. Via directed Lewis nor to contact his mother again. He also provided Lewis with the names of the other attorneys who had previously represented his mother. Subsequent to his letter to Lewis, Mr. Via learned that Lewis had received additional funds from his mother and had also conracted her again despite his directions to the contrary. M r. Via wrote Lewis after he learned the faCts. In response to this letter, Lewis wrote Mr. Via and explained that he was going ro proceed on the assumption that his mother was not incompetent. Lewis also had communication with Gail Laster, who advised him thar she had been appointed as attorney for Mr. Via's mother. Following all of the abovementioned communication, Lewis filed a Motion in probate court on behalf of Mr. Via's morner. He requested the Court order Mr. Via to execute a Medical Release from his mother as well as ordering Mr. Via to prepare an accounting for the entire time since he was appointed his mother's guardian. Based upon his pursuit of this Motion, Mr. Via was forced to hire an attorney and travel from Moline, Illinois, to attend a hearing in Little Rock. At the conclusion of the hearing, the Judge found Lewis' actions were improper. From his resti~ mony at the hearing, it appears that Lewis did not adequately review the file in the previous probate matters. Lewis contacred Mr. Via's mother and discussed the legal mauer with her despite being aware that she had a courr-appoinred attorney. He did not
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hav~ the con m of the coun-appoinred anorney to have discussions with Mr. Via's mother. Further, if he had made an appropriate inquiry into the previous Court proceedings, it might have proven unnecessary for the Coun [Q have a hearing and for Mr. Via [0 rctaln the servicC$ of a lawyer yet again. For his response lewis began by explaining that
began 10 cry and hung up the phone. He c1oS«l his response by stating that he will nor help Mr. Via's mother again and presumes she will die where she is even though she may be sane and also able to rake care of herselr.
he did nOt violate any of the Model Rules as alleged. With regard to Model Rule 1. I, he ~ned that he did provide com~[em n:prc:sem.uion to a diem and coOlinued by explaining that Mr. Via was not his client. According l'O Lewis, he did not violate Modd Rule 4.2 because this particular situation is nor the ry~ of situation Model Rule 4.2 is designed to preveOi. Further, in his opinion Model Rule 8.4(d) was nOt violated because his conduct was in the furtherance of the administration of justice. Factually he explained he was contacted by Mr. Via's mother who wamed his help in gaining her rel~ from the Iknton &rvices Centet. He tOld her that if she would .send him S3OO, he would visit her face to face. She.sent the funds and he went ro .see her. When he visited with Mr. Via's mother, he asserted that he asked her various quesrions in order ro check out her mental n:uus. According to him, Mr. Via's mother answered all his questions correctly. Thereafter, Mr. Via's mother told him that her son had put her in the Benton Services Unit even though she had never been committed. He provided Mr. Via's mother with a medical release form which she executed. The hospiral where he.sent the medical release would not honor the release be:cause Mr. Via is his mother's guardian. Lewis acknowledged writing Mr. Via and also receiving his response. He also acknowledged that he spokl: with Gail Laster, the court-appointed attorney for Mr. Via's mother. After speaking with Ms. Laster, he determined that she would not assist in attempting a release for Mr. Via's mother. He assc=rted that he did read the probate file and that he did copy large portions of the same. He explained that in the file he discovert.-d motions and notices of hearing relat· ing to the assets of Mr. Via's mother. According to his: response, Mr. Via's mother was n~"t.r .served notice of the hearing about the sale of her homc=. In addirion Lewis explained that the:: cenificates of deposit be:longing to Mr. Via's mOl her were paid into the COUrt and subsequently Gail Laster was paid out of those funds. It was his conclusion after his review of the file that Mr. Via's mOlher would "Stay a prisoner forever" unless he uied 10 help hc=r. According to him, he spoke with the law clerk for the First Division Probate Court in Pulaski County and she agr«d with his conclusion Ihat he should begin a proceeding on be:half of Mr. Via's mother. \'<'hen he spoke with Mr. Via's mother again, he told her he would file a Motion on her behalf if she sent him an additonal 5300. She sent the funds and he flied the Motion. The people who attended the hc=aring and who testified against the rt:lief he r~uesled were people he be:lic=ves may have a "direct financial interest in keeping Lhe guardianship open" and in keeping Mr. Via's mother in the mental inslitution. Lewis averred that when he explained the ourcome of the hearing to Mr. Via's mother, she
MR. PATRICK D. STAUBER Plano. TX A lertc=r of caution was issued to Mr. Parrick D. Stauber for the violation of Model Rules 1.3 and 1.4(30) based upon the complaint of Cassandra Varnell. The letter of caution was filed with the Clerk on April 29. 1998. These Rules stare. in pall, lh:u a lawyer shall act with reasonable diligence and promptness in representing a client; and, a lawyer shall k«p a c1ic=m reasonably informed about the status of a matter and promptly comply with rc=asenable requestS for informarion. In her complaint, Ms. Varndl stared that she c=mplored Sraube:r to assisr her in the adoprion of her daughter by her new husband. On Nove::mber 13, 1995, Sraube:r was paid with twO checks; one represeming attorney's fees and one representing fiI· ing fees. In December 1995, Stauber ~11l the Varnells tWO documents enritled "Consent to Adoption" and "Petition for Adoption." Ms. Varnell stated that the documel1ls were signed, notarized, and returned to him. Ms. Varnell made numetous Ollis to his office .seeking information on the status of the adoption but was never able to dis· cuss me matter with him. In Decembe:r 1996, Ms. Varndl requested from the White Count)' Probate Clerk a copy of all pleadings filed in he.r daughter's adoption case. Ms. Varnell was informed thar there was no adoption involving her daughter. For his response, Stauber admitted that he received attorney's fees and filing fees, and thal he prepared a Consent and a Petition for Adoption. He stated that the documents were not returned to him by the Varnells. He asselled that he made several calls to the Varnells to check on the status of the manc=r but was not successful in speaking with the:m. He denied re«iving r~uC$lS from the Varnells about the maner. Thereafter, he moved from SeaTC)', Arkansas, to Texas bur had a POSt office:: box in Searcy where his mail was forwarded. He stated that the mail was regularly checked but that he djd not receive either of the documc=nts from the Varnells. He denied violating any of the Model Rules of Professional Conduct.
MR. RAY EUGENE HARTEN TEl Lillie Rock, AR A lener of reprimand was issued to Mr. Ray Eugene Hanensrc=in for the violation of Model Rules 1.1. 1.3. 1.4(.) and 8.4(d) bas<d upon lh, complaint of Loretta Armstrong. The letter was filed with the lerk on May 5, 1998. These Rules srate, in pall. that a lawyer shall provide competent representation to a client, including the skiJl, thor· oughness and preparation reasonably necessary for
the representation; a lawyer shall aCI with reasonable diligence and promptness in representing a client; a lawyer shall keep a client reasonably informed about the status of a maner and promptly comply with reasonable requests for information; and, a lawyer shall not engage in conduct that is prejudicial to the administration of justice. According to thc= informarion provided in Ms. Armstrong's affidavit of complaint, Hartenstein was conracted during Octobe:r of 1996 b}' her. Ms. Armstrong wanted him to assist her in certain criminal proceedings pending in Faulkner County, one involving a felony drug charge and the other involv. ing a probation revocation. Ms. Armstrong's contact wilh Hartenstein came following the failure of her trial counsel. Frank Shaw, to apprise her of a plea offer made by the prosecutor in one of her criminal matters. Hartenstein \\l3S unable to repre.sent Ms. Armstrong at het trial on drug charges because the Judge would not grant a continuance so he could ad~uatdy prepare. Following the jury trial, he agreed to repr~nt Ms. Armstrong in her postconviction proceedings and in her probation rC\'0C3tion maHer. Subsequently, Ms. Armstrong attempted to contact him numerous times, both by Ic=rrer and by tdephone. Ms. Armstrong was unable to conract Hartenstein. On January 17, 1997, he SCnt Ms. Armstrong a letter wherein he advised her that a pelition had been filed on her be:half He also told Ms. Armstrong that the law was definitely in her favor. He told Ms. Armstrong thaI he filed the petition on the Monday be:fore January 17, 1997, which would have been January 13, 1997. In fact the petition y.'a$ not filed until January 16. 1997. In addition, he filed the Rule 37 Petition in Ms. Armsrrong's probation revocation instead of the proceeding wherein Ms. Armstrong had a jury trial on the drug charge. In thc= response 10 the petition. the prosecuting attorney assc-rted that the petition \\l3S tOO late w be considered by Ihe COUrt. He explained in a subsequenr lettcr to Ms. Armstrong that he needed a documenr from Frank Shaw's office in order to address the issue raised by the pro.sccut· ing attorney. He:: did not advise Ms. Armstrong what document he needc=d. Since the judgment was entered on Octobe:r 11, 1996, the Petition was r~uired to be: filed on or be:fore January 9, 1997. Even though he be:lieved that the law was definitely on his side, it did not maHer because he failed ro file rhe Petition in a timely manner. He also failed 1'0 take any action in the probation rC\'ocation matter on Ms. Armstrong's behalf. His response to the formal complaint began by expressing his belief that Ms. Armsrrong's case represented a classic example of coun-sanctioned pros· ccutorial misconduct. He acknowledged that Frank Shaw received a plea afTer relative to Ms. Armstrong's ca.se which was nOt communicated to Ms. Armstrong. When Ms. Armstrong lorned of the plea offer. the prosccuwr explained that it Y.'a$ no longer open so the case would go to trial. According LO Hartenstein, his first action on Ms. Armstrong's behalf was to attempt to have the plea offer reinstated. He knew that the failure to com· See Page 47
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tawrlll' IIiSl'iplillill'y .\l'tions Continued From Page 45 municare the offer constituted ineffective assistance of counsel and reasoned that the trial judge would either have the prosecutor reinstate the plea offer or would continue the case so he could prepare to represent Ms. Armstrong instead of Mr. Shaw. He asserted that on October I I, 1996, Judge McNeil "ignored the had faith and misconduct on the parr
of the prosecutor" and caused Ms. Armstrong to have to go to trial with Mr. Shaw as her anorney. He asserted that the prosecutor was vindictive and acted in bad faim. Further, he posited that Judge McNeil likewise assumed a vindictive anitude by his failure to perform his judicial dudes and thereby sanctioned or approved of what he referred to as misconduct by the prosecutor. He advised the Coun of his intention to file a Rule 37 Petition. In addition. he explained to the Coun that the petition could not be filed sooner than January 9, 1997, because of his involvement in another dient's matter. He acknowledged that his contact with Ms. Armstrong during the subsequent time period was minimal. Even though the file mark on the Rule 37 Petition is January 16, 1997, he assened that it was "filed by mail" on January 13, 1997. He explained that the incorrect case number he placed on the petition was provided to him by the Coun. His reasoning for taking no action on the probation revocation maner was because it had to be delayed until the Rule 37 Petition was heard. The Rule 37 hearing was held on December 1, 1997, and he presented evidence demonstrating Ms. Armstrong's entitlement to relief. The matter was then taken under advisement by the trial judge. Prior to the day he was relieved from representing Ms. Armstrong because of the complaint filed hetein, the trial judge denied the Rule 37 because it was untimely filed by Hartenstein. According to him, the judge's ruling was based upon a file matk which he believed was inaccurate. He asserted that he intended to contest the accuracy of the file mark of the judgment. However, it appeared that such a challenge would be prohibited on appeal since he did not challenge it during the hearing on the untimely filed Rule 37 Petition.
MS. TONA MARlA DEMERS North Little Rock, AR A letter of caution was issued to Ms. Tona Maria DeMers for the violation of Model Rules 1.1, 8.1 (a) and 8.4(d) based upon the complaint of Raymond Sanders. The lener was filed with the Clerk May 5, 1998. These Rules State, in part, that a lawyer shall provide competent reptesentation to adient. Competenr reptesemation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation; a lawyer shall act with reasonable diligence and promptness in representing a client; a lawyer in connection with a disciplinary maner shall not knowingly make a false statement of material faCf; and a lawyer shall not engage in conduct that is prejudicial ro the administration of justice. The facts as set out below led to DeMers' clients.
Raymond Sanders, filing a pro Ie Motion For Rule On The Clerk. The Motion was granted. Appellant's conviction of capital felony murder in the death of Ftederick laSalle was affirmed in October of 1992. Subsequently, DeMers filed a Rule 37 petition for POSt conviction reliefin the trial COUrt challenging the judgment. No action was ever taken on the petition. Four years later, on October I, 1996, appellant filed a pro Ie amended petition pursuant to Rule 37. The tecord did nOt contain an order relieving DeMers as counsel; neither did it contain any explanation of why the original petition remained pending for four years. On October 10, 1996, the trial court dismissed the petirion as untimely. Appellant timely filed a pro Ie notice of appeal; however, the record was not timely filed. Appellanr, who is now represented by other counse!' filed a Motion For Rule On The Clerk to belatedly lodge the record. In granting the motion, the Coun stated that DeMers was obligated to obtain a ruling on the Rule 37 petition and temain Raymond Sanders' attorney until relieved. In her Affidavit of Response she averred that she represented appellant in his resentencing trial and through his appeal to the Arkansas Supreme Court. She averred that once the case was affirmed it had to go to the United States Supreme Court. Since DeMers is not admitted to praCtice before that coun another attorney assumed the representation and picked up her file. Successor counsel filed a petition for cerfiomri which was denied. DeMers averred thar her understanding was that successor counsel was to file a Rule 37 petition alleging ineffective assistance of counsel on her part. She stated a.ffir~ matively that she "had never represented Raymond Sanders on a Rule 37 against anyone." Rather, she filed a direct appeal from his resentencing trial. As a result of the statement in her Affidavit that she "never represented Raymond Sanders on a Rule 37 against anyone" a check of the Arkansas Supreme Court Clerk's records was made. Contained in the record was a Rule 37 pedtion apparently signed by DeMers and filed on December 4, 1992, in the Circuit Court of Hot Spring County. The direct contradiction between her statement and the official record caused a supplemental complaint alleging violation of Model Rule 8.1 (a) to be filed against her. DeMers began her Supplemental Affidavit of Response by stating that prior to submitting her initial response she spent considerable time at the Clerk's office attempting to locare anything that would COllnect her to a Rule 37 petition for Raymond Sanders. Following her receipt of the Supplemental Complaint she contacted current counsel for Mr. Sandets to see it there was anything relating to a Rule 37 petition in the file that was obtained from her years before. The attorney faxed her a copy of the Rule 37 petition that the Committee would later serve on her. The Hat Spring County Clerk did nm have the original petition, only a copy on fax paper. She admitted that the signature did appear to be hers. She explained, however, that the passage of five years has pur her at a disadvantage in recalling particular actions she may have taken. She averred that she has no mem-
ory of filing the petition; that others, including inmates have access to her signature; or that possibly a secretary faxed it ro the clerk by mistake.
MS. LORI A. MOSBY Little Rock, AR A letter of reprimand and a fine in the amount of $250.00 was issued to Ms. Lori A. Mosby for the violation of Model Rules 1.3(a), 1.4(a) and 1.8(e) based upon rhe complaint of Cleophus Martin. The letter was filed with the Clerk on April 14, 1998. These Rules state, in pertinent part, that a lawyer shall act with reasonable diligence and promprness in representing a client; a lavvyer shall keep a client reasonably informed about the stams of a matter and promptly comply wirh reasonable requests for information; and. a Ia'vyer shall not provide financial assistance to a client in connection with pending or contemplated litigation. The factual circumstances appearing from the evidence before the Committee and Mosby's admission are as follow: Cleophus Martin was the driver of an automobile involved in an accident on January 24, 1995. A passenger in Mr. Marrin's vehicle, a minor, was injured along with Mr. Martin. Some few days larer, by written contract of employment, Mosby undertook legal representation of Mr. Martin and Angela Williams, the mother of the minor child. Both injured parties sought and received medical treatment to varying degrees. Mr. Martin complained that during the following year he made numerous attempts to contact Mosby to ascertain the status of his legal maHer and to request information. Although Mr. Martin was able to communicate with her on a few occasions, he was unsuccessful for the most p.m in his attempts to speak with her by telephone and was never able fO visit with her in person despite his efforts to do so. Mosby's file refleCted that she had sem three letters, two in February 1995 and one on May 8, 1995, to various insurance carriers in connection with her clients' claims. The evidence also reflected that Mr. Martin was sent three letters by Mosby. A letter on May 8, 1995, advised him of her hopes fO settle the case without resort fO a lawsuit and the difficulty presemed by the failure of the police to cite any party with a traffic violation in connection with the collision. A letter of August 24, 1995. informed Mr. Martin of the insurance company's denial of liability on the part of its insured and requested $110 for a filing fee if he wished to go forward. It was unclear as to what response, if any, was generated by that letter. Finally, on April 11, 1996, Mosby wrote both Mr. Marrin and Ms. Williams apprising them of the difficulties she fitced by virtue of rhe accident involving three vehicles and the lack of a citation issued to any of the drivers, and advising them of her withdrawal from representation. In addition, she advised Mr. Martin that he would nOt be responsible for repayment of rhe loans she had made to him. It seems that on occasion when Mr. Martin had been in contact with Mosby that he acquainted her with his financial plight and she caused $200 to See Page 48
1'01. Ull'o.l/Summcr 1998
The ,Irkausas l,allIer
H
ta\\}el' msl'iplilJjU'~' 1l'tions Continued From Page 47 be delivered ro him on one occasion and $100 on another. It was her stated belief that rhese loans were personal loans made out of her concern for his welfare, they were nOt made "in connecdon" with the pending legal maner and, further, were to be repaid "on demand" without regard ro the results of the legal maner. In her volunteered Slatement to the Committee, she apologized for her conduct in this maner and explained thar she now realized that she did not fully comprehend and appreciate all of the applicarions of some of the provisions of the Model Rules. In funher recognition of her sometimes limited accessibility to clients in the past, she stated thar she has now undertaken substantial remedial actions in regard to her office arrangements and telephone procedures so that she is bener able to maintain communications with her clients.
MR. ROBERT FULLER MEURER Searcy, AR
A letter of reprimand and a fine for $100.00 was issued to Mr. Robert Fuller Meurer for the violation of Model Rules 1.3 and 8.4(d) based upon the Per Curiam complaint on appellant Raben Turner, Jr. The lener was filed with the Clerk on April 14, 1998. These Rules state, in pertinent part, that a
lawyer shall act with reasonable diligence and prompmess in representing a client; and, a lav,ryer shall not engage in conduct that is prejudicial to rhe administration of justice. The Arkansas Court of Appeals forwarded this criminal appeal to the Committee on Professional Conduct for appropriate action. On April 22, 1997, Meurer filed a Motion for Extension of Brief Time requesting seven (7) additional days to flIe the brief with the Court of Appeals. He averred in his motion thar the previous extension was granted as the "final" extension. The instant request for additional rime was necessitated by an "unexpected" personal tragedy which resulred in his inability to complete the brief by the deadline despite the fact that he had been "working diligently" on it. The Coun noted in its Per Curiam Opinion that through April 22, 1997, Meurer received a total of 150 days brief rime. The Coun stared that his motion cited good reasons for the additional short extension, bur that as of May 20 he srill had not rendered a brief. The Court rhen granred him to June 3 to file the brief. adding that if a brief was not filed by said date a show-cause order would be entered. Ultimately, he filed the brief and his dient's conviction was affirmed. He stared in mitigation that he formerly employed a secretary who was irresponsible with his mail. Once he traced the problem [Q her she was replaced. He, however, acknowledged that the ulti-
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mare responsibility for the managemem of the office was his. Furthermore, he stated that he now picks up all of his mail and assured the Comminee that future appeals will proceed in a timely fashion.
MR. PHILLIP K. KINSEY Fr. Smith, AR
A letter of caurion was issued to Mr. Phillip K. Kinsey for the violation of Model Rules 1.3, 1.4(a) and 8.4(d) based upon the complaint by David Fry. The letter was filed with rhe Clerk on May 19, 1998. These Rules state that a lawyer shall act with reasonable diligence and promptness in represcnting a dient; a lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information; and a lawyer shall not engage in conduct rhar is prejudicial to the administration of justice. For his complaint, Mr. Fry explained that he filed a pro se Complaint in Fan Smith Municipal Coun in 1995. The opposing party answered and filed a counterclaim. At the hearing in Municipal COUrt, the Court dismissed both the complaint and the counterclaim. Within the time for filing an appeal, Mr. Fry hired Kinsey and paid him the cost for filing the appeal in Circuit COLIrt. However, with one exception Mr. Fry was unable to discuss his case with Kinsey. He made numerous phone calls to him and left messages bur none of his phone calls were returned. When Mr. Fry went to the Sebastian County Circuit Clerk's office he discovered that there was no appeal filed on his behalf within the rime provided by law. For his response, he admitted that the allegations made by Mr. Fry were true. He also explained that following receipt of the formal complaint filed by Mr. Fry, he had scheduled an appointment to meet with him ro reconcile their differenccs.
MR. PATRICK STAUBER Plano, TX
A letter of caution was issued to Mr. Patrick Stauber for the violation of Model Rules 1.3 and 1.4(a) based upon lhe complaim of Cathi Lynn Henry. The lener was filed with the Clerk on September 23, 1997. These Rules state thal a lawyer shall act with reasonable diligence and promprness in representing a dient and that a lawyer shall keep a diem reasonably informed about the status of a matter and promptly comply with reasonable requests for information. In her complaint, Ms. Henry stated that she employed Stauber on OClOber 21, 1996, for the purpose of obtaining a divorce. On that date she paid him $235.00 which represented $125.00 in attorney's fees and $110.00 in filing fees. He accepted the payment, provided her with a receipr, and indicated that the divorce complaint would be filed the next day. Ms. Henry made numerous telephone calls to his office and left messages for him to call. No complaint for divorce had been filed by him on behalf of Ms. Henry as of the date of her
til\\}IW complaint. For his response, Stauber admined mar he was emplored by Ms. Henry as her anornq. He nared thai he was com.lCrcd by Ms. Henry on rwa occa· sians. In latt'. 1995. Ms. Henry contacted him to discuss a possible di,'O(ce. Following the rnlXcing with him, Ms. Henry wanted (0 discuss with her husband 3. pmc'Ofial pro~rty sc=rdemem. Ms. Henry then left Stauber's office and did not return
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MR. GORDON LEE HUMPHREY, JR. Linle Rock, AR On recommendarion of the Supreme Court Committee on Professional Conduct, the Supreme Coun of Arkansas accepted the surre:nder of me' License of Gordon lec: Humphn:y, Jr., of Linle' Rock, Arkansas to practice law in the State of
Arkansas.
to his office umil the f.all of 1996. In 19%, Ms. Henry returned and asked him to
anothcr area rather quickly. Ms. Henry then retained him and he informed her rhat she would receive a copy of the divorce complaim and property senlemen! agreemelll soon. Stauber SI:lted thai he mailed a copy of the divorce complaint and property sertlement agr~· lllent 10 his diem wilh instrucrions 10 contact him upon her approval or with reqUesled changes. He receivcd no response from Ms. Hemy to the mailing and was not aware of any phone calls made to him by Ms. Henry. II was his belicf thar Ms. Henry had either reconciled with her husband or was nor able to continue wilh her case. As he had nor heard from Ms. Henry, he considered rhe matter closed. The lotal amount of time spent on Ms. Henry's case was 3 and 3/4 hours. At a rare of $75.00 per hour. Ms. Henry's balance acceded that amoul1l initially paid. He stated mal it was inlended that should the action not be completed. all amounts paid would be applied to the balance owed by Ms. Henry for anomey's fees earned but nOI paid. In his response. he St:lted rhat he did not wish for clients to be disappointed with his work and rhal he was, Iherefore, fOfW<lrding a check to Ms. Henry in the amount ofS110.oo for the return of filing fees nOI used. Ms. Henry indianed thai she had not rrce:i\'ed a check as st.ned in his response.
MS. SARAH WILSO
RICE
Upon her verified. petition for volunrary transfer to inactive statuS, the following named anorney was placed on voluntary inacti\'e S{atw by me Commirl« during May 1998: Sarah Wilson Rice
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MR. CARROLL P. CHRISTIAN Jacksonville, AR On recommedalion of the Supreme COUll Comminee on Professional Conduct. the Supreme Court of Arkansas accepted the surrender of the license of Carroll I~ Chrisrian, of Jacksonville, Arkansas to practice law in the Siale of Arkansas.
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start the divorce' process. 11 was at that time Stauber informed Ms. Henry that he was considering wherner [0 leave the practice of law. He told Ms. Henry that if she wanted (0 pursue the' di,'orce that
aU paperwork WQuld nerd. to be approved as quicklyas possible. He (Old her thai if he decided to leave the practice of law, that he would bc rt:locating to
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JOHN T. LIVINGSTON Long-time Association member John T. Livingston, of Dallas, Texas, formerly of ashville, Arkansas, died recently at the age of82. Mr. Livingsron was born in 1914 in Bingen. Arkansas. and graduated from Fort Smirh High School. He received his law degree from the University of Arkansas School of Law in 1937. and was also a member of the Texas and Illinois Bar Associations. He served as a Captain in the United States Army duting World War II, and later worked for rhe Hunt Oil Company for 27 years. Mr. Livingsron is survived by his wife. Frances. ro whom he was married for 57 years. and was a member of Casa Linda Presbyterian Church.
me
HON. J. H. EVANS Jeptha H. Evans, 74, of Ft. Smith died in April. He graduated from the U.S. Military Academy in 1945 and served five years in the Air Force. He received a Jaw degree from the University of Arkansas and served the Sebastian and Logan County area as Prosecuting Anomey and Chancery Judge in the 14th Judicial Districe. He served on numerous Bar Association Commiuees from 1954 1974 including the Membership Commiuce, Eleccion Law Revision Commiuec and the Judicial ominacions Comminee. In later years he was active in the oil and gas business. He is survived by his wife, Billie Sue Evans; one son, Roben Hughes Evans of Fe. Smirh; one daughter, Laura Evans Harwell of Clarksville; and four grandchildren. ARTHUR MACOM
The Arka/lsas Bar Foundation acknowledges with grateful appreciation the receipt of memorial gifts and scholarship contribuitions given in memory of the following individuals from March 28, 1998 through June 18, 1998: IN MEMOR\' OF SUSAN DIXON
ancy H. Bailey IN MEMORY OF MAXINE GLOVER
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CONCLUSION:
At least four restrictions are applicable
to
the 3rrorneys entering into the proposed company. 1) lienrs who will be referred to the company or will be customers of the company muSt be informed in writing that the anorney has a financial interest in the company, and their written consent ro the transaction obtained. 2) Likewise, individuals who deal with the company must be reasonably informed mat the company is nOt practicing law or rendering legal services, and me protections of the profession are not applicable. 3) The a((orney~ownercannot engage in an adversarial relationship with the company or with other owners of me company in regard to rdated property disputes. 4) The attorney-owner can engage in an adversarial relationship with other owners on non-property related disputes, only upon proper notice to and consent by all affected parries.
HORACE H. McKENZIE SCHOLARSHIP
Fu D, IN MEMORY OF HORACE H. Anhur Macom, age 85, died in May in Pine Bluff. He was the senior partner of his firm, Macom, Moorhead, Green & Henry and served on the Inrernational Law Comminee of the Arkansas Bar Association and the Imernational Law Section of the American Bar Association. He also served 10 years as justice of the peace on Arkansas County's Quorum Coun and several terms on me Stungan school board. He is survived by his wife, Helen Brokaw Macom; his daughter, Monique (Nicki) Horronj four grandchildren; three greatgrandchildren; and twO nephews.
the opposing attorney and seek the consent of the client before proceeding with me representation. The diem is entitled to knowledge of the personal ties that may pull at the loyalty of the attorney. Such disclosure and consent is necessary to avoid the "appearance of impropriety." The Supreme Court has described the appearan~ of impropriety concept as "a rock upon which are built the rules guiding lawyers in meir moral and ethical conduct," and likewise it should guide this comminee in interpreting the rules of professional conduct. BllrnUt~ v. Morgan, 303 Ark. 150, 156,794 S.W. 2d 145, 148 (1990).
McKENZIE
James H. McKenzie Law Firm of McKenzie, McRae, Vasser & Barber, PLLC William A. Martin
Please send obituaries 10: Adrienne Brietzke. Editor. 77,e Arkansas Lawyer, 400 West Markham, Lillie Rock. AR 72201 5OI1375-4!i06 or 8001609-5668 or
fax correspondence 10 501-375-4901 7'l,e editors resen't! Ihe righ, 10 edit copy for lel/gth (llld comilJuit)\ If a /)110'0 is aI'ai/able. IJ/ease send alld illdicate w/lether it is to be refumed.
NOTICE ''This is an opinion only of the Arkansas Bar As ociaLion which is a voluntary association of attorneys licensed to practice in the State of Arkansas and reliance thereon is voluntary and relieves any Association member from liability for the content hereof. This opinion is intended 10 be the Association's best interpretation of the Model Rules of Professional ConducI as promulgated by the Supreme Coun of Arkansas as that code applies 10 the written facts presented 10 the Committee." Arkansas IJar Association By: Howard W Bri/l. Reporter for Professiollal Et"ics aud Grievcmces Comminee
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Introducing OroYo KNow... A column series brought (0 you by the Arkansas Bar Associ.uion, in celebration of OUf emennial Yor. It is designed to provide interesting F.aC15 and anecdOle5 aboUi the many lawyers who have contributed (0 the hisrory of the law, particularly in Arkansas. and will be shared weekly with
newspapers around the state. Be sure to look in your local paper for continuation of the series - and if you don't see it, call your local ediwr. CHASING A RAINBOW There never was any system of law mar was nOl ~rter than no law, wrotc Uriah M. R~, the first President of the Arkansas Bar Associar.ion (1899) and President of the America.n Bar Association, 1901-1902. Born in Kentucky in 1834, Judge Rose srudied urin at the age of five. became a deputy circuit clerk as a teenager and graduated from Transylvania Law School in Pennsylvania at 19. Amacted by ArkanS2s' weather, he brought his bride [0 Batesville in 1853. In 1860 he was appoim. ed chancellor of the only chancery circuit in Arkansas. After the Civil War, he resigned his judgeship and practiced law in Little Rock umil his death in 1913, declining a federal judgeship and a U.S. Senate seat along the way. Tho~ who knew him said his outsta.nding characteristics were his gracefulness and his scholarship. His St':J.tuC stands in Statuary HaJl of the U.S. Capitol.v
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'What's in it for my firm?' • a managlng partner might rightly ask. Why theCNA acquisition of Continental Insurance
The CNA Insurance Companies became one of the largest writers of lawyers professional liability insurance in the nation earlier this year with their acquisition of Continental Insurance Co. The CNA member companies now insure over 50.000 attorneys in 49 states. The Merger makes the CNA more valuable both to the firms we now insure and to those that are considering our coverage. · Combined underwriting expertise enables us to price policies more flexible for small as well as large firms.
IS Important
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Call Rebsamen for more information. Telephone (501) 664-8791 Fax (501) 664-9487
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