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JANUARY

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The False Claims Act and Qui Tam Symposium

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Alabama Appellate Practice: Will include the newly revised Alabama Appellate Practice Handbook

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Keys to Successful Solo and Small Firm Practice

20

The Litigator's Tool Box: Computers and Your Law Practice

27

Family Law Practice

MARCH

APRIL

6

The Successful Advocate: The Art of Winning Before Trial

13

Banking Law

27

Worker's Compensation

10

Expanding Horizons in Employment Law

17

Creditors' Rights and Remedies

23-25 MAY

JUNE

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1-2

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8-9

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15-16

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28-30

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Til"Alabama Vol. 5.9, No. J

JUI/II IJrIl19.9R

011 (he Cover Chomben COlln11l CtJllrihollse. LoFogette, Alabama. Chambers COUrtly wM ereated December 18. 1832. from Creek Indian cession. It was I\!ll'\'led for Dr. Henry C. Chambers of t>1adisoll Count)', who Wa5 a member of the Constitutional Convention of 1819 and legislature of 1820. He was elected U.S. Senator In 1825 but died enroute to Wll5hingtOfl. A log courthouse was built here in 1833. followed by a brick structure in 1837, and the present courthouse in 1899.

-Photo b.II Paul Crawford, JD. CW

33

IN THIS ISSUE 1997 r AL!. ADMlrrEES ................. ..

.. ..... ..... 16

AIAllA>1A STATE BAR PNrrN EI~SHI P PROGRAM PHOTO H ICHLICHTS ••.•.•••••••••••••.•.•.•.•.•.......30 A PI<ACTITIONER'S GUIDE TO THE BASICS OF TIiE TAXI'AYER RELIEF ACT OF 1997

By Jeffrey B. Carr ................ ,., .... , ... , ...........33

NEW LWE FOR AlA. R elv. I~ 56(1') AJ." ·IOAVITS

By Teresa G. Minor .. "., .. . ................ ,.,., .. ,. , .. .4 1 NETEnllcs: CONCE I~NS Il ECARDINC E·r-1AIL AN!) WORl.D WID>: Wt:B USE BY ArroRN'; YS

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ALABAMA STATE BAR ONLINE www.slsbs,..o,.g Whnt'. No::w...

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About Members. Among Firms

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Memorials

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!JilT Briefs

Lc, islativc Wrap·Up

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Recent Decisions

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Retirement Programs

For Lawyers.

TIlcA I3A Mcmbcl'll Retirement Progmm was designed by lawyers. for Inwyets.

That's why it provides Ihe options that lodny's luw finns need.

The PrognUlI errcl'S comprehensive services und fe:llurcs including: ' Core Funds

The Program fenluTCs II wide selection of investment oITerings and pilln options.

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fe w of the fCnsons wh y we currently

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ABA MEMBERS RETIREM E NT PROGRAM To .hllft I I"'l1011<'<1110 ........ I.... ~."'.I.,.... ..1)0\11 d.,,,..,. -.I ~~I"""" ",.,...a ..,,,". 1'1.. c....uh.... .. u ] . Il0l]. 1\26.1191)1. boof""",... ....... onI .. 1ft' .... (w..t.. n.. AKA ~]........... II ..,~ I.......... ~t lIuUIIJlo S.1I~Sirm B.ni; ............. c-p.",.

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PRESIDENT'S PAGE iiI/Day Rowe

The (ollowing remofks WlJrI! delimmlt/ by Presitlent Dag Rowe /f) Ihe N obife /lur

Association 011 Decttmoor 19, 1997, af the recognition ceren/on.II (or the "'I1A:~ award-willning Volunteer Lawyers Program. hi which more than 401N!rctlll Or its members participate (Ihe nalional averogo is J 7 Plll'am/).

e live and practice IrlW at a time

W

where the emphasis is, "Show me

the money." It is believed by many or our colleagues and the lay public that profes5ionalism h~s become a thing of the past. repl~ ced by a fixation on bill-

able hours and the bottom line. Some

Is It Professionalism or "Show Me The Money?"

. ,".gllt.! Iii!!

...

.5<1y th,lt our profe$sion ",nd indeed OlJr 5och:!y are morc concerned about whllt's in it for th~m ilnd less concnllcd about what we can do for tach other.

Sol Linowitz, fo rmer ambauador to the Organizl!.tion of American SHllCS, recently obselVcd, "In too many nrms, the computer has become the managing p<lrtner as taw firms are ruled by hourly rates and time sheels," Please don't misunderstand me, there's nothing wrong with achieving personal success, as long as we remem路 ber the words of Or, Harold Blake Walker, "We make a livinll by what we get. but we mllke a life by what we give." As l3enjllr'llin 0111 Akllnde ~aid, "It's only when prosperity and personal success blind us and prevent us from seeing the misery and hardship that surround us, then we have missed the opportunity to make 11 difference."

The success of your Volunteer Lawyers Program reminds us that gOY路 ernment does not have a monopoly on compassion and that the best charity is 10c,,1. As ThxiIS Governor George Bush, Jr. recently said, "The most compassion. ate and effective suciat sClVite is one thai restores the hutYtllr'l JirIk between recipient and giver and that replaces a faceless bureaucracy with the helping hand of a neighbor."

William 1-1, I>1iller wryly observed that if you ask militMY veterans the single

most importlillt thirlg they leamed in the service of their country, they'll respond, only half jokingly, "Never volunteer:' Notwithstanding that military lesson, last year 90 million Americans spent an average of 4.7 hours 1I week to benefit olhers and gave a lotal of $100 million dollars.

One hundred and sixty years ago, Alcxis de TO\lucville Solid Ihat while other niltion~ have two sectors (public find private), Americ<l has a third: V()I路 unteerism. Since the Creat Depre~sion, thlll "volunteer seclor" has Ilever been needed more. Today ....'e are witnessing a fundamental change in the way our government deals with socilll serviceg.

Whether you agree with President Clinton's commitment "to change welfare as we know it" or ",hether you subscribe to Newton GinJlrich's approach out lined in his book, '10 R(mew America, it is obviouslhilt bedrock chllnge5 lire ilfQ()t in how we help those who are le~s fo rtunate. It has become abundantly clear that there will be more responsibi lity at local levels lind more dependence on private generosity. Thi~ new reality has not been missed by ]'resident Clinton, who recently said , "The era of big government is over; lhe era of the big citizen is just getting underway," These changes will require a renewed and enhanced commitment by lIS ilil to volunteerism ilnd philanthropy.

We must rcalize that voluntcerism is good for the soul of the volunteer, good fOf the life of the person served. blld good for the collective social fab ric.

Increased volunteerism can benefit each of us nol only by milking OUf com路 munities a better place to Jive, bUl by

.r~ "" C-; Mcc" c.c,c.c .~ c,:-------------------------------

helping to repair our profeuion'$ tarnished image. Attorney Bill Bepko. c.hancellor of Indiana University, recenUy observed thaI: "Today many lay persons view la'N)'ers with unfocused resmtment. This seems to be on the assumption that la'N)'ers take disproportionale value out of the economic system. nQt only in litigation costs but il\ disruillion of legitimate business transactions and the employment of costly and needlcu llitigatlonr practices."

Rightly or wrongly. lawyers are blamed for Rambo-tactic! charac.terlzed by costly and needless confrontation, which ignore opportunity for resolution and consenSU5, and which enhance our rellulation as hired lIuns profiting by the misfortune of our clients.

This perception brings to mind John Howard's stor)' t1bout II Briti$h knillh\ back in the Middle Ages. A knight was returning to the castle one evening after a long, hard dllY, His armor wa~ dented. his helmet was askew, and his plume WiU smashed. His horse was limping and the knight was listing to one side. barely staying in the saddle.

The King saw him coming and went out to greet him. ';You look awfull What hath befllllcn you, Sir Albert?" he asked.

The knight straightened himself up and said, "Oh Si re, I have been striving in your behalf all day, burning and pillaging your enemies to the West." ';You've been doing wha t ?~ asked the ,utonished King. "I don't have lilly enemies to the West." "Oh!" said the knight. "Well. you do now."

A significant and sustained commitmentlo volunteer work by lawyers can ~ure ly help improve that tarnished imllite. I am convi nced, however, that in order for our profession to correct its Image we must fundamentally and permllnently return to the bedrock values that originally made ours an honorable profe55ion, ucond to none. We must give an honest hour's work for an honest fee. We must not lie. cheat, chi:iCl, or steal. We must respect our colIC<lIJl.les, judges and legal system. We must also respect our clients and oth路 ers' clients. their property and their opinions. When we individually and as a profession remember these lhings. we will no longer have to worry about ou r image.

In an age when lawyers are supposed to be lough and pragmatic, we often forget that much of our legal heritage is based on a commitment to how things C."ln be and should be- not merely how the), are now. We forget that our colleagues who framed the Declaration of Independence and the Constitution were idealists committed to valuc~ that transcended Ihe present and the practi, cal. James O. Freedman, president of OilTtmouth College, recently said that: "Idealists are people inspired by an idea greater than themselves. who are driven by a moral impenlive 10 imagine II world better Ihan the one they found ...ldealisl$ are informed [aboul[ and Involved in the civic life orl heir communlties...ldealists care about those who lIeed help and cOltnnit themselves to service and to a life路tinle of civic land professional I engagement. They care about the health and well路being of neighbors and strangers al ike. They care about the legal rights of all. especially those without adv<lcates, They care

B LU MB ERG

aOO1.l1 the working poor who struggle to make their way and to presen'e their families in a global economy of bewil, dering technological change. They cilre about children, who need the full support of societ)' in order to achieve their potential. Idealists remind us, by the way in which the), adv/lnce lh~ I!VfS of other5, that, as Matthew Arnold said, 'I,i(e i5 not a hilving and getting, bula bting <lnd becoming: And they invite us through their "tnerosity to be open to the possibility that what they have been for us, .....e might be for others. Idealists are not mere dreamers. They are known by their deeds and by the pride and pur, pose IhlIt animate their jcharity and generosityJ .. ,ldealists are not rare, but there are not enough of them lin this profession orr in sociely."

There is an old African proverb that s-aY5, "Cod "ive5 nothing to those who keep their arms crossed. It's obvious to me that a lot of people in the Voluntetr Lawyer! Program have their arms wide open to others with a helping tuod.

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Blumberg~cel~qr

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EXECUTIVE DIRECTOR'S REPORT

By Keilh 8. Norman

Judicial Selection, Brazilian Style

Front rotl', from Ir!/I: ~ CoI~. Jui: Pau/u l.'IluurrkJ fW:uk. Jul: l,Jli~ AI'/Q/,0 "" (jQ(/()jJ ul/li Keith

Nrm1lO/I. /JacA' roll',' Juiza Fi1rnI1l!dil Com;>$ Cum(ldw, )II;((J lui: 1'1/11/1) J<>rrN &omu lnl Gulm(1f11/U,

he Alabama Slate Bar recently had the privilege of hosting ~eve n judges (rom the stille of SilO Paulo hl Brazi l. These judges were visiling Lhe United States on an educational program. I'ro(essor Charles O. "80" Cole of Cumbertand L.1W School sCIVcd as their official host for the Alabama visit.

Incl uded on their busy itenerary was a trip to t-1ontgomery. While here, our

T

judicilll visitors had the opporl unity to

visit our slale appellate courts ;md the state bar. Their slale bar visit included a tour of our rllcilillu, II gener.. 1ovcrview of the operation oi bar associations in this country and an explanation of the licensing and regulatory {unction of the Alabama State Bar in particular, The I3rilzili.ln jurists ....'ere especi.. lIy interested in the work of the Alab.)ma Center fo r Dispute Resoh,ltion in advancing this concept in our stMC. o

~ A NUART

.IIDO

CllrmL~II.ueia

rN Si/l.'(1, JliM 6'(1/ Ami<Jka alUl

The Brazilan judicial system is similar to our federal and stat e court system. 'lWo of the lIisiting Brazilan jurists sit on the Cillil Court of Appeal$ of tht State of Sao Paulo. This court is similar to our own intermediate appellate courts of appeal, The fi ve remaini ng jurists sit on trial cotlrls that are simililT to oll r ci rcuit co urt~, Thei r trial courts are dillided so t/l..lt they hear crimi nill and cilli l cases separately.

My conllersations with these judges comparing and contrasting our respectille judicial systems WiIS fascinatins and enlightening. 1 WM particularly interested to learn how j udgc~ arc selected in Sao Paulo. Eighty percent of tht judges, both in federal ~ n d 8tllle servite, are selected by examination. The remaining 20 percent are appointed by the 51ollernor of each state or the president of the 1ll1ion after undergoing a

qua1ific:alion process. The appointing authority then selects one n:ame from among the five names offered, The 20 percent selected in this fashion i'lre referred to as the "constit utioni'll fifth ." The wisdom of the "constitutional fifth" is that it pro· vides the judicial)' with bahmce and diversity. Judges appoint· ed in this fashion must nevertheless have experience as practi. tioners. prosetutOr:s. stale's allorneys or in other law-relhled funt:lion~.

The rem:alning 80 p(!rcent of Brazilian judges are selected by examination, A law graduate. however, Call 110t sit fo r the judi cial exami nation without first obtaining two years of legal experiente, This experience may be gained by pratticing law, clerking with a court. serving as a 5\.1te's attorney, or the like.

Ceneratly, examinations are held when there are a sufficient number or vatancie~ to hlstify doing so. Pollowing appointment of those candidates who have scored the hilthest on the judidal exams, the lIew judge is usually assigned to sit in the l'nOsl rmlll area of the ~tllie until the Tribunal Justlcla (equivillent to our staLe supreme court) promotes the judge to more highly sought judicial positions closer t(lthe capita!.

Tile Tribunal Justlcia act! upon request~ fo r promotions when vacancies occur in the more desirable courts on the recommendation of a committee of 25 sen ior judges 011 that court (there are J33 judges on the Tribunal Justicia). The newly appointed judge serves a two-year conditional term, Upon S<ltisfactorily completing the two-yellr conditional lerm, lhe judge is then eligible for permanent appointment by the

/)I)iff)IIIV JohIUi!lI (I"h).

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'l'rlbunal Justicla. Uiliess they retire or are removed from office (or misconduct. federal and stllte judges in Brazil may serve until age 70, Our Brazilian friends came 10 the United Slates and Ahbama to increase their understanding about ou r national and stllte judiciary. I hope we were able to imparl in/ormation th~t will later prove useful to the State of Sao Paulo's judicial system. In turn, maybe we can usc what we h~vc ie,llned from them to rethink the way we currently select judges in Abbama.

•

Alabama Bar Institute for Continuing legal Education The University of Alabama School of Law Alabama Stale Bar

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ABOUT MEMBERS, AMONG FIRMS About Member.

1.111 ~tilne r lIancoc:k announces the relocation of her office to 2205 Taylor Street. Guntersville. 35976. Phone (205) 582·6940.

John W. Green. III announces the relocation of his office to Plaza I, Suile 24.300 Clinton Avenue, West. Huntsville.

35801. Phone (205~ 534-5671.

Aaron E. Bradahlw announces the relocation of his office to 313 South

Street. Castonia. North Carolina 28052.

Phone (704) 865·461:1, Amardo Wu ley Pllten announces a change of address to 207 Montgomery Street. Suite 210. r-Ionlgornery, 36104.

Phone (334)265·3333.

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John R. Chrbtlan announces Ihe relocation of his office to 1233 Craylynn Drive, Oirmlngham. 35216· 2621. Phone (205) 822·6297.

Charles A. Ray, IV announces a chlmge of ,HlIJrcs5 to 130 Summit Oaks Drive, Apt. 1508, lIuntsville, 35801.

Phone (205) 534·3996. lanier D. Cooper announces a change of address lO 2114 Westchester Drive, Daphne,36526. Phone (3:M) 62 1·6932, Oscar W. Adanls, III announces the relocation of his office to Arthur O. Shores l.aw Center, 1603 5"' Avenue.

North, Birminghmn, 35203. Phont (205) 917·3700.

N.I', Callahan, Jr. announces lhe reloClition ofhi$ office to 13 Shades Creek Parkway. Suite 208. Birminilh/H'll, 35209. Phone (205) 871-1500.

Kathryn A, LeplJCr announces a change (If address to 317 20" Street, North. Birmingham, 35203, Phone (205) 324· 1334.

Carey Dennelt McRae announc" the opening of his pri\'ate practice, His office is located at 1425 South 21" Street. Suite 20<1, Birminltham. 35205, Phone (205) 930·9006.

Perry G. Shuttlesworth, Jr. announcu lhe formation of Perry G. Shuttlesworth, Jr.. P.C. Offices are located at 300 N, 21" Street. Suite 200, Birmingham, 35203.

Phone (205) 252· ) 146, Among Firm.

Ih1t.h & Bln"hanl announces that Michael D, Wllten has joined as a parI· ner, Offices art located at 2 Dexter Avenue, fo10ntgomery, 3610<1, Phone (334) 269·3138, Wallace. Jordan, Ratliff & Orandl announces thllt Klmberl), R, Wut is now 01 cOlltlse(. Offices lire located lit 800 Shades Creek I'ark¥.'ay, Suite 400, Birmingham, 35209, The mailing alJlJress is P.O. Box 530910, 35253.

Phone (205) 870-0555.

Thomas O. Kotouc:, I·,C. announces that Nlt.k V. Shimoda has joined the

firm as ofcowJsel. Tht new location is 4142 Carmichael Road, folontgomery, 36106·2802. Phone (334) 409·0088.

Miller, Hamillon. Snider & Odom announces that Chr18lollher Kern and Gregory C. Iluffalow h/lve become members, and Rotemal')l I>onder Cole, Walter folark Anderton. IV and Robert 8 ,W, McLaughlin have become associ· ates. Offices are located in "1OOile and Montgomery. Alabama and Washington, DC. Langalon. Frazer, Sweet & Freese announces that Ja mu G, Stevens, (or· nler assistant attorney general (or the Alabama Department <J Environmental Management, has joined the Arm. Q(flce5 have relocated to folorgan Kee!!an Center, 2900 Highway 280, Suite 240. 13irmingham, 35223. Phone (205) 871 ·4144, aalch &; Bingham announces the relocation of its Huntsville o(flct to 655 Callatin Street, S,W" Suite 200, Ilunt$vilJe, 35801 , Pho,e (205) 551· 0171, The WashiOllton o(flce has relocated to 1275 Pennsylvania Avenue, N,W., 10th Floor. Washington. DC 20004. Phone (202) 347·6000. t)helpa, Jenkin" Gibson & Fowler announces that A. Courtney Crowder has become a member and W. David ~an has become an associate, O(flces are located at 120 1 Creensboro Avenue, 1',0, 80M 020848, Tusca 1OO5a, 35402· 0848. Phone (205) 345·5100.

The State of Alabama !loud of Plrdons alld ParolCi 3.IInounces that Stt\'t Sirmoll has been promoted to deputy attorney general, assigned to the board's legal division. Offices art located at the l.urleen 8, Wallace Bulldlnl;, 500 Monroe Street. P,O. Box 302405, Montgomery. :.16130·2405.

PhOrle (334) 242-8700.

Thomas. folean. & GUU. announcts that Ikborah ander. Manuco and Darnell D. Colcy have become associates. Offices are located at3 121 Zelda

Court. 1'.0. Drawer 5058, /'I1ontgomery, 36103·5058. Phone (334) 270·1033.

John "lIrtln CaIne. P.A. announces the relocation of ofl'ices to 300 ICommercial Bank Buil din~, 800 Shades Creek Parkway, Birmingham 35209.

Phone (205) 870·0663. lIycal1 Brooks, III and Charles I. !Srock. announce the formation of The Urookl )o' lrm , I".e. Offices are located at 200 1 Park Place, North, I'ark Place Tower. Suite 920, Birmingham. 35203.

Phone (205) 320-0005.

Sherllng. Umwnin" & York announCC$ the relocation of officn to I Iiouston Street. tIolobilc, 36606. Phone (334) 476·8900.

Brooks & lIamb)' announces thai Stewart L. I!OWlird hOis become a part· ncr. Other member! include Benjamin II. Urooka. III. David A. lIamh)" Jr..

Jene W. O\\'enl , Jr.. lIalT)' V. Satterwhite, and Oal')'l A. Atchison.

Offices are IOCllted at6 18 Azalea ROlId, Mobile. 36609. Phone (334) 66 1-4 11 8.

Lehr, "liddlebrooks. Price & Proctor announces that Cinda R. York hll5 become an associllte. Offices Me located at 202 1 Third Allenue, North, Suite 300, Birmingham. 35203. Phone (205) 326·3002.

Thomas II, Bro"" and Clyde O. Westbrook, III, formerly of Harris & Brawn, have changed the firn1name to IJrown Westbrook. and Clytie We, lbrook has bef;!()me ~ sh,ueholder.

In addition. John S. Johnson has become an auociatt. Offi ces remain at 2000-A SouthBridgt Parkway. Suite 520. P.O. Bolt 59329. Birmingham, 35209. Phone (205) 879·1200.

Hedden. Mill! & Clark announces Ihal Ronald J. Gault has joined the fi rm . Offi ce5 lire located at 9<10 IAlabama Bank Building. Birmingham.

35203. Phone (205) 322·0457.

I.. Scoll JohnlOn, Jr. announces that the firm of BirdSong & Johnson will cellH. and the firm name of L. SCOIl Johnson, Jr. will resume in ils place.

Offi ce! remain located 111207 /'I lontgomery Sireet, 36104. The mailing address is P.O. Box 1547. ~Iontllomery.

36102. Phone (334) S34-322 1.

E\'ans. Jonn &: Heynolds announces that Samuel n . PI,yne. formerly wilh

Cabaniss, Johnston, Gardner, Dumas & O·Neal. has joined the Cirm as an a550' date. The shareholdcrsare J. Clarence £\'an8, IUcharo A. Jonu, Winston S. Evans and J. Allen Iteynotds. III .

Offi ces are located at 1810 l~iT5l Union Tower, 150 4'" Avenue. North, N,uhvitlt .

Tennuste 372 19·2424. Phone (6 15) 259·4685.

Ilerkowitz. Leflro...ill, 110m & Kushner announces thai Edward P. /'I1C)'(!uon arId Michlld R. Silbennlln have becomc members of the firm.

Offices are located at 1600 $outh1'rust Tower. 420 N. 20'" Street. Birmingham, 35203. Phooe (205) 328·0480.

John /'II. Wood and Paul n. Shaw announce the formation of Wood & Shllw, I..I..C. Offices are located al 2001 Park Place, North. 810 I'a rk Place Tower. Birmingham. 35203. Phone (205) 322·2777. lIening, Dick, Wisner, !\dams & Walker announces thai Eric P. Adami has become a member. Offices are located ill 100 Washington Slr«t, Suite 200.

Hunlsvillc. 35801. Phone (205) 533·1 445.

I..Inge, Sh1l1)80n, lIobln80n & Somerville announces that William S. "' Ishbume, III and /'Ilac 8 . Greaves have become partners and /'I1lchael J. Velezil, Ju k G. Km..-al!kl. C. Harton North, I\. lhyance l'I lethe ny, Jo),ce Uakcr-Sduky, lind VanUIil A. S immon ~ have becomeauociJltes and that "lark L. Thompson has Joi ned the firm . Offices ate loca.ted 8t <117 20'" Street, North, Suite 1700. Birmingham, 35203·3272. Phone (205) 250·5000.

Ikhrouz K. Rahmati and Kevin C. G"'Y announce the formati on of Rahmati & CI'II,Y. Offices are locat(d at 200 Clinton Avenue, West, Suite 806. Huntsville, 35801. The mniling addr~ss Is P.O. BoK 19006,35804. Phone (205) 533·2002.

Brown, lIudgens P'C. announces that Stewart J. Ihooker has btcome an associ· ate. Offices are located at 1495 University Bo\llevard. I~O. BoK 168 13. Mobile.

36616·0818. Phone (33ot) 344·7744.

Zanllur & Schwarb annO\lllCeS that Wendy A. Zaruur has become an asso· ciate. Officn are located 2209 Morris AW!nue, Birmingham. 35203. The m"ll· ing addrm is P.O. Box 11366. 35202· 1366. Phone (205)250·8437.

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Leitman, Siegal & Payne announces that David U. Champlin, Marcie A. Lanier and Tona M. !lillOn have become associates. Offices are located at 600 N. 20'" Street. Soite 400, Birmingham, 352(}3. Phone (205) 251·5900, Malone. IlrinyarX & Nelson announce5 tn.l1 lhyan S. Brlnyark and Mark C. Nel80n have become share· holders Ilild thllt Jamr, E. Gentry hilS !)(:come an associate. Qmces are located at 221614'" Street. 'fuscaloosa, 35401.

Phone (205) 349·3449. !,yon., Pipu &. Cook announces that Roger E. Cole. S. Andrew Scharienbel'Jf, Gln5ler L. " Ierc:e lind PhiliJl A. Stroud have become woci;,tes. Offices arc 1000lt· ed a\ 2 N, ROYll Street. "1OOile, 36652.

Phone (334) 432-4481.

Joseph G. Stf"'at1. Jr. and Thomall E. Jnmu /lnl1ounce the formation of Stewart & Jalnu . P.C. Offices are lrolted at 200 S. I.,ilwrence Street, "1ontgomery, 36104. Phone (334) 263·3552. lIam •• Cleckler. 8trg, Rogen!. 110111, &: Bumglmer announces that Stephen J. Bumgarner ~ become a member and that Jeffrt)' G. ncbl and Paul A. Wilson have joined tht nrm as i!J.WCiates. Offices are located at llistoric. 2007 Building.

20073'" Av.:nue, North, Birmingham.

35203, Phone (205) 328-2366.

Reglnn D. Edward ~ and Thomu It. Edwanb of Edwards & Edward. have relocated to 109 E. Btidge Street.

Wetumpka. 36092. Phone (334)5 14. lOll. Durward &: Cromer announces 1I1l1t C. John DUlwlr'd. Jr. has become an associ· ate. Offices are located at 20 15 2'" AVimue. North Suite 100, Birmingll.lm.

35203. Phone (205) 324·6654,

CLE Reminder All cu; credits must have been (!Un/cd by Otcernbtr 31, 1997. All CI.E tranM:rip\s must be 1V!Ci!1t14!d by January 31, 1998.

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Jallle~ 1: Sasser and Rebecca A. Walker, formerly of Simmons, Brunson.

Sasser &: Walker. have relocated their practice. The firm name is Sauer & Walker, POC. Offices are located at 406 S. 5· Street . I~O. Iw; 186, Cadsden, 35902.

Phone (205) 547· 11 33.

Donald, Randall, Donald &: Tiliton IlI1nOUnc.es that Iml.abeth U. Sadler and Timothy L. Shelton have become associates, Offices are locllIed at AmSouth Building, Ninth noor, 2330 Univer5ity lJoulev~rd. 1\Jscaloo$ll, 35401. The mailing address Is P.O. Box 2155.35403. Phone (205) 758·2585, 'linner &: Culn announces that Stewn M. Wyatt has become an associ· ate. omce5 are located at2711 Univer$ity Boulevud, 'fuscaloolll.

3540 I. Phone (205) 349·4300. ~'reman &. I<aoul announces Ihe relo· cation of offices to 21 1 5, Cedar Street.

"10blle, 36640. Phone (334) 432·2111.

Cabanlu. Johnston. Gardner. DUIIIIII & O'Nul llnnO\lfl((5 that StIlCt)' L. ~IcD urra. ~1. Anndte I..lnnlng, Kyle C. Barrentine and Jarrod J. While have become llMOCiatts. Officu are localed at Park Place TO'Wer, 2001 Park Place, North, Suile 700, Birmingham. 35203.

Phone (205) 252·8SOO. William J. Gibbol1l, Jr, and Darla T. Funnan announce the formation of Gibbons &: Fl1tman. Offices are localed ilt 117 Jefferson Street. Norlh. l lunLwille, 35801. Phone (205) 539·0021 .

William J. ~l cDat1ie l. J:.ck M, Blins.

Jr. and l'alrlck R. Norris announct the formalion of The McOanle1.'Inn. POC. and thai William S. CrowlOn and ~lichellc 1<. l)inonl have become a.uocl· ates. Omce$lIre located at '1\0.'0 Mct roplex Drive. Suile 504, B rminghllm, 35209.

Phone (205) 871 · 1811.

Charles C. Hart and William R, Willard announce the relocation of offices to 420 S, 4· Street. cadWen, 35901. The mail· ing oodrw remains P.O. Box 26, 35902, Phone (205) 543-1'i01.

Albert J. Trousdale, " and Lan')' n. ~I oore announce the formation of Moore & Trousdale. Both were previ. ously members of Ashe, Tanner, Moori: & Wrillht, and the offices will remliin at the former Plorence office. located al 201 S. Courl St reet. S(lile510, 35630, The mailing addrU5 and phone will

remain the 5iIme, P,O. Box 1072,35631.

Phone (205) 718·0120, !lubbl rd. Smith. Mdlwaln.

Hnkefleld & Shattuck announces thai £I\zabelh F. Colwlck. forme r law clerk to Chief Justice Perry O. Ilooper. Jr.. has become an ~»ociftie. Offices are located at 808 Lurleen Wallilce Boulevard, North, Tu~c/lloo5a, 35401.

Pholle (205) 345·6789.

Rogen. Young. Wolbleln & lIughu announces lhe relOOllion of omces to 1304 Quintard Avtnue, Anniston. 36201.

The mailing address will remain P.O. Box iT.!8. 36202. Phont (205) 235·2240.

Dlvld S. Luker, J. Wl1lll m Cole and William K. Bradford announce lhe for· malion of Luker, Cole & Associates.

L.L.C. Offices are localed at 2205 Morris Avenue, I3ir1llinghnm, 35203.

Phone (205) 25 1·6666.

Yearout. ~Iyen & 'fra,ylor nntlOU1\CCS the relocation of omcu 10 800 Shades Creek Parkway, Suile 500, Birmingham.

35209. Phone (205) 414·8160.

Siamu &: Atchison announces that IIryan O. lIalogh, previously with Lusk, Fraley, "lcAlisler & Simms, hu joined the firm. Omc.e$ are located al 100 Brookwood Place• .,... Floor, Birmingham, 35209. The mlliling address I~ P.O. Box 598512, 35259· 8512. Phone (205) 868-6000.

Sirole &: P~mlutt /lnJ Sauer & Littleton announce the r merger, under Ihe name of Sirote & Pennutt . Offices are located in Birmingham, Huntsville.

Mobile and M01ltgome1)'.

Loflin. lIemdon & Loflin announces that Ihe fi rm name has changed to Loflin. Herndon. Loflin & Miller.

Offices are located at 1705 7"" Avenue.

Phenix City, 36868·2566. The mailing address is 1'.0. Box 2566. PhOllt (334) 297· 1870.

Lanier. Ford. Shaver & PlI)'fle announce5 that Gregol')' S. ~I artin and J. Clark l'endergrau haw: become ass0ciates. ornces are located al 200 West Side Square, Suite 5000. lluntsville, 35801. Phl)ne (205) 535·1100.

Roy S. Goldflnger. P.C. announeu the rel()Calion of offices to 4137 Carmichael noad, Suite 210, 1',0, Box 231555. Hontgomcry, 36123·1555.

Phone (334) 395·8500, •

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NailJs/n'Om . a sesquicentennial history o( Cumberland School of Law, broUJlhl together members of the Cumberland community at The Club in Hirminghilm on Augusl27. Guest of honor was longtime Samford University benefactor I.ucille Stewart Beeson. whQse mO$1 retenl girt is the law school'~ new libr:u)'. and to whom f'tom MOt'l!r'icit to

Mainsfream is dedicated.

Cumberland Dean l1arry Currier intro-

• This yelH's recipient of the Alnbal'l'l:l Circuit

Judges Memorial Scholarshi p, ptcsented annually by the Circuit Judges hssociation to an outstanding law student, is Birmingham School of Law student "alsy l\1cCI.l)' Ou ni\·ant. The scholarship fund was established J~l ly I. 199\

JIl(/gol Gurv {Wil

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to promote the educa-

David J. L.1ngum. bolh

den ts of the IlIw and honor lhe memory of dtcc.' sed Alabmn"

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tion of deserving stu"'rUm Idl u'" r;v.uulhf)Tt 1)/,1";/1 J, /'/n'll(lm

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• Wilbur C. Silbennan was recently prl!5cnted with a life· time achievermnt award by the Blinkru ptcy and Commerci<ll Law Section of the mrmingh;l!l"L Bar Association. I-Ie is the first recipient of such an award. Sl1berman is ~ founding shareholder of the Blrmlnghbm firm of Cordon, Si lberman, Wiggins & Childs, P.C. • Charlca J. Kclley ha5 been named chairperson of the Young Lawyers Commi ttee of the 21.000-member Defense Research Institute, the nation's largest :luoci.. lion of civilli tigation defense lawyers. Specializing In product and prem i ~es 1illbility as weJl as fraud and automobile litigation, he Is a partner with Howard & Kelley, L.L,C, of Florence.

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Duniv:mt, n 21-year veteran of the Alabama Judicial System. worked as a judicial assistant to silt of the ter\ }udge$ In whose honor the scholarship is awarded. She currently serves as judicia l assistant to Circuit Judge J, Cary Pate, domestic relations division, Birmingham, Alabama.

• u.un ic~ s m ~ has been nllmed pTllsident-e lect Qf the Alab.. m.. Lawyers Association, the Alabama aftlliate of the National Bar i\ssoci!ltion and comp r i~ed of approxim:ltely 200 attorneys (rom across the state. Sill$ pteviously served as assistant secretary for the ALA and was also th ~ association's annual retreat coordinator.

Si lls practices in the fwlontgomery o(fice ofn\Omas, Means & Cillis.

• J08ellh II . John8on, Jr., of the finn of Lange, Simpson, Robinson & Somerville, has been awarded the Bern:lrd P. Priel fwledal by the National i\ssociation of Bond l...,wyers for distinguished service in public finance. The award \\',tJI r)lade on September 25, 1997 at the Association's annual meeting in Chicago. The Priel /l1edal is awarded no more frequently than annually, but has not been awarded since 1994.

•

ALABAMA

STATE

BAR

1997

STATISTICS

OF INTEREST

Number sitting {or CK,tm, , .• , • , , .•......................... . .....• , , , •.. , , • , . , . • .. 600 Number certified to Supreme Court of Alabama ......•..•................ , , . , . , . , . . . . .. 407 Certification rate· ......... , . , . , ........ .......•....•....•...... . , . , . , .. , 67,8 percent Certification Pe rc entag•• : University of Alabama choo1 of Law . , .. , ...• . •. , . .• , .. , •.. . •••. ..•.... •. ....

Cumberland School of Law ........ , .... , . , .•. , . , •....••..•••.••• . .• . •.•...

Ilirmingham School of L.1W ........ , .... , . , . , . , •. •....•....•....•..........

Jones School of L.1W, ............. , . , ... , , . , . , , , , , .............•..........

Miles College of Law ..............•. , , , • , • , • , ., • , ••.... ..... • •• • .•••.. . .. t Il/eludes ol/Iy those succeS5rufly passing bar exam amI MPR/j,'

H'

JANUARy.eee

93 percent 89.3 percent 43. 1 percent 39.2 percenl 12.5 percenl

ALABAMA

"Professional Presence

Projection:

~;~' j.-I.-IL-LEJ ! ~'D' ~ July 8-11,1998 ~. ~GG Perdido Beach Resort Orange Beach, AL a:-=:. ~~~th~~ Corinne Cooper, Profossor of Lew,

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University of Missouri al Kansas City School of Law

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..

4

Alabama State Bar 1997 Fall Admittees AliTOn. Jolin Michatl Akm , JAnel M~rit Alw nder, Roger l.twls Alfon!. Rem Brandon AIi!!n, Richard HarTi~n Allen. Wynn Dee TUrberville Andmon, AUen Lewis Andrtwl, Stewn Douglas A~ull •. Julia Therua Spau.uini

M1olp, David Wi;;wm Alklnl, M~Uhtw Scou A1ki nJOn, Amanda Shu Blchl,~!)' Mhur CI\lulu 8alll ~. ~brk Lte Ralogh, Charla Joann Durham Ranlu, Stephanie OieM; 8ard~lI, Craig Allan Bamra, Stephanie Renee !lain Bl mt tt, Allison Vemon IV Bamett, Jdfcry Scott Ib mhHl, Shannon Ltannl· Ihm nti ne, Kyle Craiil 811)', John AlAn Ru pl!eu, Dont\ll Janice 8edwell. Robert Roy II I BUlon, William Iloymd II! Bttl)'hili. JOn;\than Lewis Ru hlll)', Yvonne Marie NorriJ Iktbtu. Jaim~ William BlJck, llroderick Sterling ollck, l)ylan Cook HlJck, Edw~rd Shant Hiack, Sltph~n fOltcr DIKkbum, Call'ln Wtii III Hlaellwtll, Jonalhan Alldrtw lI iJ nnnlhlp, AIliJQn Sumr.e Gunnl" Rll nktnihlp, Ellubtth Jaeitson Hlankenlhlp. Lucien Berl1lrd BIUlmin, Vicki e In Blounl. Edward ~rter Jr. Bodl~. John Louis Booth, Rainey ~\\1hon 80)'lnlon, Benjamin Lee DOltmln, M ~rthIJ Renee' Brady, Anupanu. Aihok MlhIJleklir lInntlt)i. Lar!), Wayne BrI, htwell, Ruth Mauer Brooker, Stewart JeI(erJO/1 Brook., Donna Eich Brookl, Erin Elisabeth O·t/eill Brown, Karen Kathy Drown, Todd Allen

Buchl nln, John Rooney Ouchanu, Virginia Marie Buck, Branl)l)n Jeffrey

Ihmc.ln, l'rit.cilla ll~ Diad Dunham. Oar!}'1 Andrew 01100, W111i~m Norris Dupltchln. llurward hmu Oum.nce. Jenelle Rn

8ulll. Pannie Lucretia Sampson Bunln, Nancy Byrd HUm'lu, hl, Rickry Cl)'dt

DUl"III'l rd , Gerard John Jr. Ed, !. Harry Arthur III Ed,!, Larwn DewiU Jr.

Caddell, RO}' Michael Jr. C.Jdwtll, LuJif Ann Callaway, lJ~rold DU50n III Calion, Jimmy Spurlock Jr, Campbell, John StUllrt Callada, Cynlhl~ Mule M~y Canada, I~r!)' Gene Canway, John Melville Jr. eal'l'". llobbi Jille Carroll, il untfr COJN!land Carter, Jerome Chriltopllrr Ch. mblm , Andrew Rabun Chlmbll ll, Micah Farrell Chandlu , lIilly Howard Chappell. Cuy DeWitt III Charlu , John Wesley II I C!llIdl, J~mes WtJley Jr. Cltw land, Clifford W~yne 11 Clifton, Jeffrey hmt.l Cochran. Robtrt Hollis Colllnl , Meli»a Ann Bahead Cooper. Cary Shane Coprnh.lYfr, Bradlty Stan Cotlrmond. Mtua Patrice Cotter, Maria AthIJrwia Coughlin, Thmmy Denise Smilh Court ney, Jeffrty Jotl Cox, Eliubeth Annt Coyle, Ch.lrlu R/I~h:lel Gerard CI'OII'. Ch rUllna Diane Cmwe, Donna Marcelle Curtll. Stflltn Craig O·Allg010. lostph llryan Ihu btnbtrgrr, Kathryn Da rragh Dll'Cnport, Thra InLana Olvl., Jennifer Lei~h !karman·Davld,on, Kimberly Jan~ Oterln•. Christopher Wayne DtMl rtO, John AothollY Dettllna, Aaron Unden O ld,~, Kath!)'n Mat Dodgen. Walter Arthur Jr. Duchr, Clt3rlu Raymond Jr. Dudley, Cht'Rn' Mi nor

EIHnbtri, Tet')'1 Ann Smith Eli.m, t'rHman Milton Elwood, M~rk Stephen Iin, land, April Anita Ent lt n, AlAn Frtderiek EVIM, C~rI !..enford Jr. IiYl~J, Melim DenlH Falh, a~ndon Kent FelllrW, . Michllel Clay Fll hlT, John Tncy Jr. FlO'o\ut, Mona l,(e Fohu r, Ja50n Matthew io'mman, Clenda Oelorsr frtnth , Laura JOtltl "'rib, Mkhael Aaron Sr, CIlI, RichIJrd M~r k Call lard, Thom.u Ocl.wius II I Cllnn, Rebeca Ann Carner, AI~n WlI}'I1t Gamtt. Joe Wheeler Jr. Gluk, Ronald Jamu Glbbont. Kriltel Neshe lle Mayton Gillum, John Stuart ClllUand, Scott Alan Coldm, Ronald Scott Cold,tt in, Lawnnct Jonathan Co mn , Ifalrick Fitzi/traid Conu-1u , C.:trIN Antonio Goo.!rich, ThOmAS Mlclt3el II Cordon, Nicole Lynn Graham, ~rol, Lynn Gnll, Michael Blakely Jr. Gray. Patrick O·Neal Gny, RoMr! Brian Cray Shara Lynne Cnu. )oNlthan Oal'ld Crlmn, Jennifi cr Quintina Crcws Crlmn, Rtbtm Colley (;rlm, ley, Dwell Wayne Jr. GrillO",. ChrutOilher Ray Gunther, hmu l.ee Guthrie, Larry Lte Jr. Iilgt!', Kimberly Liane Iilgruln , JUlIn Kirk

Drown. Wendi Mack 8r\1Un,I'MaI

111milion, Orville Ln III

ItlmmlUe. Mark E(enn Hanthorn, CrtQory liu$SC1l Itarden, Jouph N~I~nl~1

.bni,. Plerce Jackson Jr. IIl rrbon, Mich:\eJ A~n lI, noy. Robert FAwin Jr. 1I11'WI!1l, Helen Ruth IIIUawlY. Ashlry Suzanne Heron lIaynle, Ltig!! Ann lI~nry, Jamu Fred lIerring, Myles Slanlty Jr, lI u ler, De~ie Carolint HIckman, MlchIJel DeWitt ' lUckl, James O.wid 11111, E~lICn( Patrick 11111. IJsa Jo lilli, MaNin Clifford Jr. II l1yu, Jeffery Alin III n~l, Will iam Chrbtian III IIGlder, Cary Brycf 1I0UldlY, John ROM Honeycutt. J.I), III HOpI, AJl'ln Klrklty II 1I0rate, Toni J3c~urllnf 1l0Wllnl, lUcky AJltn Jludd lu ton, David Wjlan Jlud lOn. TImothy Cecll Jl u, hu , O~vid Bowen l1 ul hu . Glenda Wingard 111,111, Sunny Summer l1 unt, Robi:rt Scott l1 unUey, Eliza«lh Humphrey l1 uuey, Curtis Ray lI ut chln.on, Itlrwy AtwroJ III J. duon, Jostph Walton JlcklOn, Marshell Ret\ll Jaeobl, JoItnny Eugene Jain, Kristin nrookt HandilY Jl mn , Thonw Earl Ju tnblkl. Alytia Katrin JohnlOo, Candace Ltigh Oolhare JohnlOn, Jllml RONild JohnlOQ, John Stephen JollnlOn, Nathan f'aul Johnl lon, flavid I.ee Jr. John' ton, Jamu ~yjd E~rdley Jonel. Allan SIdney Jonea, Thomu Alfred III Jum llY1ly, Bolly Vigodsky JumllY1ly, Sttvtn Oavid Kanuru , Rajrndra Kumar

~ tl NU tl "V ' UUBI "

Alabama Slale Bar 1997 Fall AdmlUee. Kaufman, TimoLh)o Wi1Uam K«nan, P~l rkk JIrlItJ Kenllf1iy, Dl:bon.h Lou lie", Lacy t:liubc:h KllIl'tlJ, WillIAm Btadl'onI KIII$ck. Stfphfn Louil Klilthl, S1mutl D.l1'Id IInowlu. ChrisliN 1M Daslnlltr Knowlu, Juon E""ene Knowln. Jmmy Lynn I....nk, l';aul Villfrt Lan,ley, J~ ~Iallhcw La"),, \\,,11l&1li TodJ Ltdbetttr, Fred Ff1nkhn Ir, LrueH, Joel Thon'as Ldeunr. Peter Iliet rlch lAmoni, Jam~ AnJ re....

Lm!r1. Gina Rayt ~,NilNo Cook ~. Shelby lAigh Ilockman Uchcn.trin, Robrn MlIurice Jr. UnIon, Km Kimberly UnIon, lIand Andeoon Ulfnby. Kimbtorly K.lthtrinr Ti ll Unll, Carol C.lrr Utili. John Mlllory Uttll, John Melgh.wl I.M.Udlb, Alfred Fritdrichs Jr, 1Jo)oII, tauq Ali« ""owt LoUin •. Katie E'v.uu t.ongshort. Cuol 4'!ln l..owdtr, Siltnl}'I1 Jr.ll1 \'ulk, Pa)1on ClllI\\'eli \,yonl, Champ III MaeFan.nt, JarmJ Wry Maddllcnl, C~en"'t1e Main, Btf1jlmln Saxon MlnlOtl, Patricia l.oui1c ,10111'111, Richard lI ullIes Mlrsh,ll. Alexander Joseph 111 Mm hall, [)enn il FAY.'ard Mlnln, Cynthia Ann Pound Mlrtln, Jamrs D.!.I;.

Mlrtln, Kalhlctn Chrnlillt Scott Mullll, Kartn I.yn McC.mmon, lCl'Il1Ilcr Ann McCal11, I lol~ Catlttt MrCormkk, I'."tlll~m ~'r~y McCoy, Albe rt Lte McCulloch, Mkhul JlOOn Mco-II. Marcus ~lfwud McGill, ChtryI A1dc I McCowin, Sbpkcn Cl~nn

'"

~.NU.RY

tnnn

McKlnne)', Enht r l'lIrson Md.endon, Robert Rollinson IV M(.\Ill1an. Van Oooglu Mc Pbtttrn, Stn'fn l.ee McPhmoli. $coli Landm McWhonfT, Willivn Alltn McWiII ill1ll, Mary Maniu MtIIle)', Arthur ROM MIIM.lltrt Jouph Miller, Deborah IUy ,\\Illn . Lelah t:lltn Lassllrr Mllthum, kiCbudia Momy, Lynn Anne Moo". John Oavid Morpn.Omd Troy Monni n, Steplunit JWI N()rri$ Motlb, lIre nton Kirk Moms, Rkhard 1M MorriJon. O.lvid lIrtnl Momtoll, lohn Comun II Morrow, klftrson lAnicl MOJQrtltt, Joy« !klh Mullin., M,w Y1ene MuJondo.Rowden, Tusit Mum)', 81mn Andre Nlbors, Scott Jason NlolKt, Mark t:dw.lord NclU, Robrrt llimilton Jr. Newman, Klnlberly Jo NlclioIl, W,llill1l \\'ayne Nolu. James ~'S Jr, ObikO)'l, Oluftml Adtsoji l'l dgru, Jimmy Cltn !'adtltlt. lll\a C~rol Paduda. ~'arclf .:lIubclh PIl'llrr. ll rrnl l.omr Plrlcer, D.!olid Michael l'lrlcer. F.d\o,n l~iJ Parter. Kmi ~hon Page !'allenon, Lon Caroillackitman ['l ulu" !.tsllr Caren I'aync. Chllrln l.te Jr, Puree, lyhe t:hqbcth Oalis Pendtrt:rul, Joel Cltrk Pertdnl, Jerry .'~ter Jr. Prm", Michael KtI'In Pm)'. ~n Michelle Pl~ron l, Miriltllf Kirby I'oeuchkt, l'iI!e Andel'lOn I'onur, ~vid Randall Portel'1l, Anthony Callcdgt Po)wf. \'altrie !lieu Powell. ~non leigh

Prmky, Oianah 4'nrv 1'Tkf. Jotl Anthony Jr. I'rilcllanl, JOin AlIi~n Quillen, Amy &lIcy Quinlin, Sh.'!un l.tigh Qvlnn, Patncia Ahcf 1I11nfT. N~ncy Jo Pugh IIllmu'Hn, Karyl L)'Il!le 11/11, CN/la Adrian IV Rm!. Joe Morgan R«H, JOiC'ph l .awr~nc:e Jr. Reynold •. Lynn Ric" O~I1l I.ornf Riley, Minda Lynn Rltclity, ll nan JOSfph Rlttfl', Tommy Carl'('li Jr, RoMrtl, E11WIt1h Mn Robert •. Joe l.uttr RobinJOll, l.onw Chri$lopiltr NOICoe, Jtnnifer Anne 1I01l1r, Ch.'!rlu O~nirl Jr. ROIHI. Oaniel Pinson ROUN, Scotl Ltt IIOWJII, t:dwl.rd Po....~11 Rowe, Slrphcn J~kson fl UIHII, JKqutline Virginii Slntlrmn, Slcph:mit Ik nise SllI rNhllt, JIll Kalhh:rn Vinliliflil Saul, llhonda Rana Schuennlll, M~ry Belh St..I. Mark Al.ln Stllers, M)'Ji Milk Shahtnl. M~l ,.,OOQ',i Shlmblln, J.ISOf'I Alan Shdfltld, Haidu Leah Owie Shellon, 11mot hy Luke Shoill •. J~lhan Edward ShoolJ, VlnWII Odette Arnold SlmlllOlll, Deloru Jacquehne Simmonl, Va11USl Mn Simoft. Ktll Ascher Simoft, Ranmy Simi, Jodi Mlchclle Smith, Alan Lee Smith, lJamon Quinn Smith. Gary Slep/ltn Smoift, lKClUeJine Cooper Soulullo, Scott Wlynr SlIonfonl, Jud Chfford Stftlt, Rholldio Vklolla Stftll, Perry RuUtll Sltffan. I.tllie .:Ii:llbtolh Slfphrnl, Charlrs Raymond Jr. Strphrn•. Craig Martin Slfpbcnl, Mlchrllt Ehuhtlh IIlley StrpMnl. NICole I..eigh

SIf\"n., JO$(ph ~ Slorie, IA'O!l Rogu S101)'. Tlimm Ann Slrawll1idJle, C)r()lilt hckson SIron, . H~nry Whilfield Jr, Stroud. Philip Andrew SluNnun. Amy l,rnn Summm, WiUiamAlan Jr. Talbott. Jt'I'fmlah Jostp/l ~Ior, limu .:dmond Jr. Thtrllpton, Drnnis Larle Thompton, MariN Susan l.tach Thompton, Tracy ~I iehtll~ Lynn nndll, M,uk EUIl(J'Ir: nndol, Melton Chad Tomlln5Oll. ~rtley EUI/ene III Tompklnl, Krislll'll "'ide Truutll. S1ri Martu Tuciftr, KUfn J..Inette Tucker, l..Iura Ilaya Undtrwooll, Vicky Ikllft Wllktr, John Rupn " 'IIkt!', Shoon "~ ,,'llIhlll, Carrie PirU "'Ilthall, tb,dIo'ldt COlI WlrmbtOd, Monic.l Lynn Wamn, ('.onion ft()'Ol'u d Webb. Robert 1l ~)'S Whftler. Sun Thonw "'hltl, limn Herbert IV "'hIlt, lirrod Jocl " 'hIt" Kaliltrint Cuire "'hiln", Jcffr:ry Abift " ' "Inl, Ibphllt Ndl ,,1111Iml, Angcl~ RenH "illl~llIl, JO)' Evdle "ll1llml. Kmn M ~tlhews " llJlanu, Kirby ltalln "ll1lam•. /oblthN Chrillian " l11bml, MkhMl Ceurtney " illOll. Ploul AWt " loon, N~ .'rtkridtl Wln,lon, Kdlt)l ltemr Milchell " in&lon, Norman Glftn Jr. " 'nltr, bryan f'alrldc Wlsr, BI'ltIdon CIuctNkk Wolf. Ollby RC)'I'IOldJ Wood, &Iiubtlh louiN Woolley, lima Wilh1ffl Woollty. 'hmmy Crole MurJlhy Wort~, ltnilu Nicoll: Str ickland II'orlt)', Simn Lyllc Wright, D.!.nicl WilHam " I~hnlll, CrelJ1lry "MUIl Zal"&M, Wendy Ann

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WIII/"m Iww LVhII<'. Jr, (;946/. T ,l lkh<lrt Goodrkh (1911) "nd T. Mkh<lrl

Goodrich. k (1997) gToJllrff<llher, f<llih."f uml ",jmilf,,·

J.N"'~"Y

loon I

~l

MEMORIALS Thomas Nicholson

his clients. He had seMd in the AIlIb.:lma t.egislnlure representing Walker County from 1982 to 1986. For many years, he

We honor the memory of

served as the attorney (or Walker County and was ve~ innuen· tial in this position, He was also instrumental in the 911 board being started in Walker County, Tom w;u a strong supporter oi education, and served on Ihe Board o( Trustees at Walker College, He was a force in the rlegotiiltioos necessary (or the merger oi Walker Coltegt and the University of AlabalT\il in Birmingham. lie w:u a loyal supporter of the Democratic party.

Tom was /I very devoted f3mily man. !-Ie w,u married fo r 2<1 years to I~i!a Nicholson. His children are John Tyler Nicholson, age 21 and Crace Lee Nicholron, age 15. Tom was also an avid hunter.

Tom had many friends in Walker County and throughout the stale of Alabama, He always had a funny story to tell, and many of his stories will be repealed for years, His friends and associates continue to mourn his passing.

- Nel.on Allen PTe,iden!, Wa l ~r County Bar Auoclalion

Dean Martin Leigh Harrison

1.0 accept paralegal clerkships in 1'usclllooS<l law firms provid· ing both a rich source of clinicallrainlng, and in many cases, nn oPIXlrtunity fo r placemertt for the students and of substan· tinl assistance to the attorneys in legal ruearch arId selVice; and Whereas, Dean Harrison loved the legal profeuion and in II quiet, serious manner and with much diligence and attention to c.letail inspired those arounc.l him to the same standards of careful analysis and preparation, and integrity in aU dealings as being the e5Sential ingredients of a successful practice; and Whereas, Oean I-larmon's career wa$ carefully oullin«! in a tribute 10 him appearing in the March 1997 issue Ii ThIl Alabama UJlLyer, publbhed just prior 10 his 90th birthday, which i5 incor· porated herein by IItl1lChmenl in Ule l)ermanent minutes: Now, therefore, be it resolved by the Thsc.,loosa County Bar Association in the meeting auembled on this 18'" day of September 1997 that it mourns the delllh of Martin Leigh Harrison and honors the memory of this distinguished col· league whose life has exemplified the highest and best princi· pies 10 which members of the legal profession aspire.

Oe it further resolved that this resolution be spread upon Ihe minutes of the association and that copies be forv.'a rded to his daughter, Barbara Ann (Mrs. I-larwood) Smith, o( Boone, North Carolina, and his $On, W. Robert Harrison, of DanvUle, Virgini . . with the condolences of the mernber$ of this associ8lion.

Thomas Nicholson who pJssed away at Carraway Hospital in Birmingham, Alabama on Jlliy 17, 1996. Tom attended public $chools in Jasper, Alabama, and graduated from Walker College in 1970 lind the University of Alabama in 1972. J-Ie obtained his Doctor of Jurisprudence degree from the University of 700mtu NkOOIsoo Alabama Law School in 1975. He was admitled to the Alabama State Bar in 1975. He beg~ n practicing then with the law fi rm of Maddox & Macl.aurin. At his death, he was a partner in the firm of f.1addox, r.1acLaurin, Nicholson & Thornley.

Thm was II distinguished membtr of the legal community in Juper and Walker County. Tom was a very capable advocate for

herellS, Ihe members of the Th5cal005a 13ar Association were W saddened to Ie.lrn o( the death on July I. 1997, of Dean Martin Leigh 1·lanison in Boone, North Carolina, He w:u living there in a nursing home near his daughter and son after sus· taining a broktn hip from a fall at his 1'uscaloosa home in August 1996; and Whereas, Dtllrl Harrison ruided in ThscalooSli fo r 58 years from 1938 when he began selVing on the faculty of the University of Alabama School lMm Ul4Jh lIorrison of l.aw, 1·le was dean of the law school (or 16 of thOM years, The many members of this bar who were his students allest to his astute ability as a teacher, legal KholaTand as a dean who commanded respect by demanding high standards and yet giving careful attention and utmost faimes.s to the smallest of their problems; and Whereas, during his tenure as Oi:an, the law Khool and its facilities wtre always available to members of this auocialion, who were encouraged to participale In Its activities including opportunities for continuing legal education. I-Ie also encour· aged faculty members to aid in improving legal stlVlces, such as I>rofessor P~yne'5 proposal for requiring source or title and estate pagu in conveyancing which was first adopted in 1'u$caloosa County. He also allowed and encouraged students ,.

_ G. Stel)hens Wiggins Prnldent, TuIe,loola Bar Anocl,tlon

JAHUAR. tOM

I

Hugh D. Merrill, Jr. ~'riday,

ugh D. MeTTi! , Jr. passed away on October 31, H or School of Law in 193711nd practiced law (or more lhan 50 1997. Hugh graduated from the University

Alabama

years in Anniston. Alabama with the firm of f.lerriil, folerrill, t-Iathew5 & Allen. ,.,,. ftlerrill *,,-ed in the Alabama I lowe or Representatives fn)l1l 1955 to 1978. Avery effective Legislator, Ilugh ch.1irrtl Ihe Judiciary Commiltel and Ihe I lo~ Ways and f.'eans Commiltet. lnSlrurllental in pauing many pieces of legblation. he strvtd as noor leader (or Governor George C, WallllCf and ""as sponsor of the Bill to create the Alabama L:Jw Institute. as ....'tll as help create lhe board of trustees (or Jacksonville Stale University.

Jim Campbell. an Anniston attorney and currently presi. dent of the Alabama Law Inslitute, said, "Without Hugh's

Richard Dale Durden hereas. the Illrmlngh:ul'l Bnr Auocilltion 10SI one of lis youthful members through lhe death of Ilichard Dale Durden on December 17, 1995 III lhe vcry young age of 37 years. A product of Monlgomery and a 1976 gradullte of the Jeff Davis High School there, I~i chard Dale Durden graduated from Auburn Univmity at fotonlgomery in 1980 and received his Il\w degree (rom Cumberland Law School in 1983; and, Whereas. he served as a senior staff attorney with the Southern Company Services. holding membership in the Alabamll State Bar, the Birmin"ham Bar Association. the Masonic Lodge and thc Ilaptist Church; and.

Wherea.s, Richard Dale Durden left surviving him his widow, fot rs. Ginger Patterson Durden: his sons. Zaehcry Dale Durden and fobson Warren Durden: along with his parents.

Colonel 1>1. Durden lind Shirley Glenn Durden; and, Whereas. this ReiOlution is offered as 8 record of our admi路 ration lind affection for mchard Dale Durden and of our con-

W

work. the Alabama Law Institute would never have been a reality. lie .....as one of the legislators who was responsible for formulat ing the idea for the Institute. and he shelfierded the legi51ation crealing it through the Legislature."

Oakley Melton. form er prcsidcnt of the Alabama State Bar and the Alabama Law Institute, said. "Hugh Merrill was a gTeM American, and an outstanding Legislator. He was the moving force which created the Alabama Law Insttute. Ills leadership made the Alabama l.2Iw Institute one of the most ouutanding Institutes in the United States. lie will be missed. ~ Hugh folerrill, II quiet unassuming legislator. is sur\lived by his ~'i(e, Martha. one daughter, Nancy Merrill \lagnuson. and three sons, David 1>lerrill, Paul Merrill and Hugh 1>lerrill. ttl.

- Hoberl L. McCurley, Jr.. diredor Alab.m. Law Inltltute. Tuscaloosa

dolcllces to his wifc, sons and parents. and the oUler members of his family.

Now. therefore, be it resolved by the ~:xecutive Committee of the Ilirmingham BlIr Associlltion III ils regular mceting assembled; The Birmin"ham Bar Association Ilreatly mourns the passing of Richard路 Dale Durden lind is profoundly grateful (or Ihe txample that his useful life has brought to the membership. both individu<'tlly and collectively; Thallhe surviving members of the family of Ilichllrd Dille Durden lire hereby wurcd of our deep and abiding sympathy: That 1I copy of this Resolution be spread upon the records of the Birmingham Il<lr Association as a permanent memorial \0 this departed brolhcr; and That copies of this Resolution be furnished to his Wife, his sons lind his p;lrents as our expre禄ion 10 them of our deepest Iympathy.

- M. e ll)' AlsPlugh Blnnlnghl m Bar Auodltion

S lnl'l~

Charles Owings Caddis

Joseph Jacob Levin

!'eter Vaughan

U n Slay Sireet

Binnillgham Admillt'{/: 1.967 met/: AIIlIuSf 5. 1997

Montgomerv MmWed: 1.9.'U Died: July 12. /9.97

Mobile Admitted: 1967 /)jllt/: October 6. 1997

,lIIallfa, GA At/miflt..t/: 1.986 /)jed: JU~I/ 8, 1997

Marlin Leigh Ihrrlson

lIugh D. j\1clTm, Jr.

Claude Hlchard Smith

Hobert F. Wart. Jr.

1!lscafoosa Admilll.od: 1904 Dit'(/: JII/.I/ I, 1997

,1/1111:#011 Admitted: 1937 Died: Nowm/xtr I. 1997

Metairie, LA Admilled: 196'7 /)ied: J(lllllaf!l21, 1997

Millry Admilled: 1953 Oiud: Augllsf 14. 1997

Wile), P. lIenderson

Irene Feagin Scolt

Clyde Allen Smith, St.

f'/omatol1 MmiIM!: 1955 Died: Ocfo/xtr 16, 19.97

Washingtoll. DC Admitted: /936 Died: April 10, 1997

MOl1tgomery Admitted: /965 Died: AligUSf 26, 1997

Mal'lC u\'a

Tom Cui Shlrle),

Samuel A. Sommers. Jr.

Washinglm. IX Admittl.od: 1940 Died: f'cbruarv 2, 1997

lleaumollf. TX At/mitted: 1982 Died: S('1'lemoor 27. 1997

Selma Admitted: 1951 Died: Allgusl 26, 1997

~ ~

.... u .. nY ' .... I a

BUILDING ALABAMA'S COURTHOUSES lJy Samuel A. Humore, Jr.

Conccuh County

onecuh Counl). in south Alabama, has .. rich Indian heritage and II mysterious name. "Conecuh was derived from onc 0( several Choctaw or Creek word1. Some sources MY thnt the name comes (rom tJlI! Indinn word Hconatll" meaning ''crooked,'' Ilowever, most scholllrs discount this derivation. A popular belie(is t~llhe county name is a corruption of "e<:onneka" which mean~ "land of cane." Other sources say the nnme comes from the Creek "kono ika" which means "polecat's head." Another I)()ssible deriv3tion is a combimlion of the Choclnw ....'()rus "kuni akka" which translates Into "young ,,)nes below,· Any of these possible meanings would have been allPfoprille for the fronti er from which Conecuh Courlty Wil5 carved, When it was first seWed by Americans, the territory was quite wild nnd overllrown. Canebrfaks grew evr:ry· where. and the areawilS fi lled with wild animals such as deer, wolf, benr and skunks. So with either popular version, "land of cane" or "pole' cat '5 head," Conecuh County was well· nllmed.

H

Conecuh county Established: 1818

The foflowing continues a history

of Alabama's county courlhousestheir origins ond some of Ihe people who conlribu,'et/ 10 their growth. If you have (lny photographs of ear("

or present courthouses, please for· ward them 10: S<lmuel A. Rumore,

The first signific,lnt military activity in the future county, a Hirmish In the Creek Indian Wnr, took place on July 27, 18 13 at Burnt Com Creek. A Ilroup of Indian warriors were returning with well pons and supplies from their British IIl1ies in Pensacola. The American forces surprised and attacked Ihe Indians. The Indi:ms Oed and the AnmiclU15 began to plurlder their camp. ~leanwhile , the Indians regrouped ,lIld counter· 31tacked. It \\'/IS now the Americans' turn to Oee and they were almost rout· ed. Fortunately, Captain Sam ])ale cov· ered the retreat with II rear guard and the Americans escaped blCk to their TombiAbee settlements. The next month these same Creek IndianJ attllcked ~'ort fotimSllnd massacred the inhllbitanl5 there.

After the Creek Indian War ended. pioneers btglln settling in the fu ture Conecuh County in Inte 1815. Samuel IJuchanatl was the first stiller. The sec· ond man to settle within the borders of the county was Alex~uldcr Autrey. In 1816 Autrey, a native of South Carolina. moved from a place he called Autrey'$ Creek to a line of hills llbove Murder Creek. JIe called his new home J-Illmpden Ridge.

AlItrl'Y named the plact where he settled for John Hampden. nn English statesman and leader d f1IHliament.

Hampden lived from 1594 to 1643, I-Ie was a first cousin of Oliver Crom\\.'ell and an opponent of Charles I. Autrey honored Hampden for being an independent defender of liberty and propefty.

Jr.• Miglionico&Rumore. 1230 Brown Marx Tower, Birmingham.

Alabama 35203.

20

~ANUAnv

'"""

I-'ront !'wol J~C4n«uh Coullt, C4lIrrhw$t btro..

19SIJ odiJilu!

On February 13, 1818, the Alal).r!mll Territorial I.egislature On I)ecember 13, 1819, the Legislat ure .. Iso cre~ ted seven created Conecuh County from t.lonr(M!: County. The new coun· new Alabnma counties. Among these were Butln and Henry.

Iy extended from Ihe Federal Iload, which bordered MOrlrQ(: MI)§I of the territoT}' of Conecuh County Wl\5 10$t to th ~k two County, to the Chattahoochee IliVfr. It covered parts of 14 prene....' counties. Conecuh was left with approximately 1.480 sent-day Alabama counties and extended approximately 170 'Quare miles. miles east to west at its . .____- - " " " - - - - - - - - - - - - - - - - - - - - -_ _ _.... longest point and approximately 60 miles north to south. This first confiAuration included roughly 8,100 $qulIrC miles.

When the count) WiLS established. the legislature mandated that coutU be htld for the lime being at the house of r-Iayberry TI10IlW, or if there was a lack of nece~ry buildings, court could be conVfned at a more convenient place contiguous. Thomas WiLS a m;dor in Ihe militia who lived near Alcx.1nder Autrey al Hampden Ridge. So. H:lInjxlcn Hidge, while IlOt being specifically ll1med county seat by the legislature, did effoctively become the county seat and all county business was transacted lhere, The first courthouse was a one-room log building. with II dirt noor and wooden shutters for windows. Juries would retire to The fi rst courthouse built at Sparta the surrounding forest for privacy when .....as only .. slight improvemtnt over the deliberating. Thl$ building also doubled one .. t Ilampden Ridge. It .....lS conas <to church I'o'hfn the infrequent relistructed of pine logs. consisted of two gious services were held there. rooms, and h..d dimensions of 20 by 30 At this time, Murder Creek served as feel. It had two doors. The building also a dividing line between Ilampden mdge served IU the local house of worship and an Indian village on the east bank when 11 minister WilS available. of the creek. This yillage was called Old Town. For !everal In December 1820, the legislature p.1S5ed a tax (or the con· yea rs the Indians and the American settlers lived in peace, ~t ructi on of another courthouse and jai l, which were complet· However, a rOYing band of Indians made a raid il!tilinsllhe setcd around 1823. The contractor fo r the buildinJl was a rol r. tlers and stole some cattle. The local Indillns were blamed and Simmons (rom Tallahassee, Florida. In addition to his com· $0 the gett lcrs ilttacked Old Town. drove the IndillnS nway, and pemlltion (rom the county, he WM paid $500 by the local burned the vill<lge. liJasonic Order to build their IWllt on the second fl oor of the St'VCral residen\.$ from H:nnlxlen Ilidgc mO\led 10 the eastern courthl)u~e. side of rolutder C re~k lind settled there on the site of the TIlt town of SIlMtll w:.s arrllnged around a square. 11lt courtdestroyed II,dian town. The nrst such settlers .....ere Major house and jllj] were located within the public square. Businesses Richard Warren and his sons. Other famities soon joined the !Urroulldcd the square. TIlt town limits extended 200 yards in Warrens. Thomas Watts, an attorney. nlO\'Cd to the area from each direction from the courthouse.

Sparta, Ceorgia. lIe suggested that the village be called "Sparta.~ Besides being the count)' seat o( Conecuh County, Sparta A-1 the number of residen15 in SP.lrta increased, the)' $OUght to became an important lown in the region because or the have the courthouse moved to their yill;llIe. A bitter struggle rederal Land Office. On (\Ia), I I, 1820, Congress established a ell$ued belw«n the Autrey faction on Ilampden nidge and the regional office there for the sale o( government lands in thi$ W..rren faction in Sparta. FillOllly, on December 13. 1819, the area of 50uthern Alal).r!ma. Purchasers of I.. nd c.. me to Sparta, Alabarm Legislatu~ appointed five commissionen to fix a penna· l nd lawyers, mercrunu and hOlel-keepers all prosptred. ncnt stat of justice for COrlecuh County. These commissiootn On Dtcember 8. 1821, the AlabJma Legislature incorporated sided .....ith the W.. rrens .. nd made Sparta the county seat in 1820. the Spart.. AClidemy, the first suc.h school in this part of the ~"NU""'

,_ I 21

state, It drew students (rom a wide area, Its most famous graduate was William IJarrett Ttavis who later became /I lawyer and achieved immortal fame as the commander of Tew troops III the Alamo, On December 17, 1821, the AlabMll1 L.egislature authorized Ihe opening ofa road from C,Lhaba, the state capital, to Pensacola. This road played an importMt role in the develop. ment of Sparta. [t connected Sparta with the Alabama River in one direction and with the Gulf of Mexico in the other, Sp.'Lrta was later linked to f.1 0blle by te[egr.<aph line in 1858. Jly 186 1. a rail road was completed In llle county.

The Civil War began in 1861 and the residents of Conecuh County proved their patriolism along with othtr Southerners.

Eiftht companiu of infantry were made up in whole or in pllrt from the c ~t izens of Conecuh County. The nr5t of these was Company E of the Fourth Alabama Regiment.

The command was popularly called the "Conecuh Guards," This unit was first organized on April I, 1861.11 mustered inlo service on ,"1ay 7, 1861 at Lynchburg, Virginill, Its ser· vice continued throughout the war until its surrender ill Appomattolt Court I'Joust, Virginia on April 9, 1865.

UniO!l forces did not enter Conecuh County until 1865 foll owing the fall of Ihe Gulf Co.1Sl. According to officia l reports, Colonel A. Ii. Spurling, in command of three brigades of calv<lry, came up from f.1i1ton, ~'l orida, by way of Andalusia on March 21, 1865. Near Owassa he $truck the railroad line. After displacing the trades he captured the train coming northward from Pollard on the mornIng of H<lrch 24. Lilter that morning he captured the train coming southward from Hontgomery, Neltt, the rllidcr$arrived in Evergreen and destroyed all Con(edemte go\'ernment property they could nnd there. Prom Evergreen they arrived al Sparta late in Ihe afternoon of Harch 24, Here they spared the courthouse but burned the

•• mue ' A. Au",o .. , Jr.

s.m..r A. FUnonI, Jr iI. lI' ~ ot lilt ~ ot

Noh 0Iwne IfI(l Il'ot i,..IrWet." ot ~ ScIlODI a!

Law HI ...-..d. b.IndIinO c;l'\IIorflnOI' ot ....

HIIbiI!nII SUQ Bar" Farif Law ~ WId ilirl Pt'1IO!lot IrI 6il rnilout-n ..... hi !irI1\ 01 MogIcnr;:o & IUn:wII ~_.hI"WI' I_",Ii)'N IOfI

eo-a.-. -..1'U'I'Ibaf flu. _

........ a! ".

~~EIliillNlIIoMI

county jail. After spending the night in Sparta, Colonel Spurling and his men proceeded southwc$terly out of the county the nC)I\ day, In 1860, Sparta had a popuilition of approltimately 500. It was the larllc..~t town between Montgomery lind Pensacola. Yet after the Civil Wlir it rapidly declined. How did this happen?

Fiut of 1111, the Federal t....,nd Office was mOVEd from Sp<lrta to Elba in 1855. With the 1055 of Ihe Land Office, many lawyen moved away. Hotel and mercantile trade also declined.

Neltt, the l()Cation of Ihe railroad siAnifkanlly affected Sparta. Early Mu'Vey5 had indicated thlll the railroad would come through the center of Sparta, Instead the rail· rood was constructed on U1C west side of Murder Creek and the depol was built about a mile and half from the town's center. Some merchl\l1l$ moved to the depot area and the town proper diminished more.

Another factor was the war itself. The raid on Sparta resulted in the destruction of several building~ Ih~t would have 10 be replaced. Also, many soldiers did not return from the war and so the POPulation declined.

Finally, the town of Evergreen. whue the railroad did pbU Ihrough, was steadily growing. It became Ihe rival of Spn.rl<l and soon won the county seat, The town of Sparta died and il$ location has subsequently (aded away. One local historian has stilted that it is virtually impossible to determine lhe uact location of Sp",ta since no physical traces o( any sort remain today. It is ont of the dead towns of Alabama that eventually di~ppeared completely.

The town that would becorlle Evergreen wa5 first settled by James Cosey in 1818, Cosey had been a llevolutionary WiLr veleran. The location of his cabin, find lhe Illace where other pioneers settled, was called Cosey's Old Field. [n 1838. a oneroom country $chool .....;\$ built here through tht efforts of Htvtrtnd Alexander Ttavis. uncle of William B. Travis. He named the little school the Evergreen Academy, b«aust it was located among the pines. Asmall community developed around the school and by 1860 it had a populiLtion ofaround 150 residents, Cosey's Old Field became known as Evergreen.

On rebruiLry 23, 1866. the Alabama Ltgislature passed an Acl caWnA (or an election on the first Mond<lY in f.1ay 1866, to determine the location of the county seat for Conecuh County.

The Act also provided that if any place other than Sparta received a majority of the votes, then the residents of that place had to build a courthouse of equal value, capacity and

convenience for the transaction of county busineu. 1\ also stated that If a new courthouse was oot constructed by Janual')' I , 1867, then the courthouse would rell\3ln perma· nenliy located in Sparta.

The citizens o( F:vergrun, desiring to capture the court· house. agreed to erect a new building free of charge to the county. Because of Its rising (ortunes, ill accessibility due to the railroad. and its promise to build a courl hoUM!, Evergreen became the new county seat. The e:wct date for lhe const ruc· tion of l he courthouse is uncertai n. but the Act did specify thnt a new courthouse had to be ready by Janual')' I . 1867.

What is known Is thaI county records were still housed at Sparta when unfortunately the courthouse there burned on November 10. 1866. All of the early county records were 1051.

On December 10, 1868. the Alnhama l.egislature created Escambia County from Contcuh County and a portion o( Baldwin County. This left Conecuh County with approximately 820 squilre miles of ilrell. Minor modiflca tion~ in the Do\lIld· ariu took pillce in Ihe 18705 and 18805. but Conecuh County has remained virtually the same size and shape since 1868.

RCt)()rU connict describing the courthouse bui ll lit EvergrHn. Onc account stal es thllilhe cou rthouse was destroyed by a nre in 1875. Another claims that the county records were ag:.ln dC$troyed by nre in 1882. In any event, the citizens or Conecuh County erected a fine new courthouse in

Evergreen in 1899. This building. though modified. is $till standing today.

The 1899 courthouse is two stories in height, has a T.shaped Roor plan, and also contains an ilUic and a basement. The architectural design is Romanesque. The building was origi. nally 84 (mlong, 80 feet wide. and 30 (eet high. An early photo shows that the courthouSf at one time contained an impressive three.story clock tower. The 1899 courthouse was Ihe model (or the Baldwin County Courthouse constructed al Bay Minette in 190 1. [n 1935. the co u r t hou ~e was repainted and .!Ieneral rep., [rs were made to the building.

By the 195Os, the county needed more space. hluead o( rlU:inl:! the courthouse. Conecuh County decided to add a new office building and jai l, and connect it to the older structure.

The result \\':'5 a functional though not ilesthetically plelUing addition. The clock tower W,I$ removed, and a new building was attached to lhe (ront o( the older courthouse. Martin J. Lide Sfrved alarchitect (or the 1958 project, and Cooper 8rothen Construction Company was lhe contractor.

• SOURCES: Hi'/O(), 01 Conocul! County AllIbama. Benl8ll11rl Frankilrl Rii&)'. 1881.

Spal/II AIII/)NN. l82r. 1866. POI Poole. flO dalli. From Cilbin. 10 Martllonl. Mary E Brllrltloy. r'IO dale~ InVf1(l/ofy ai/tift Coorty ArcIIIWJ. 01 Alabam/!. No 18.ccr«uh CCun(r. WPA, May 1938

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ALABAMA STATE BAR

PHOTO

HIGHLIGHTS

MONTGOMERY COUNTY BAR ASSOCIATION

BIRMINGHAM BAR ASSOCIATION

COFFEE COUNTY BAR ASSOCIATION

30

JANUARV 'IIOn

Judicial Award of Merit Nominations Due The Board of Bar Commissioners of the Alabama State Bar will receive nominations for the slate bar's Judicial Award of Merit through May 15, 1998. Nominations should be prepared and mailed to:

Keith B. Norman, Secretary Board of RBr Commissioners Alebama State Bar P,O, Box 671

Montgomery, AI.bama 36101 The Judicial Award of Merit was established in 1987 The 1997 recipient was the Honorable Hugh Maddox, associate lustice,

Alabama Supreme Court The award is nOl necessarily an annual award. It must be presented to a Judge who is not ratired. whether state or federal court, trial or appellate. who is determined 10 have contributed sl{1llflcanlly to the administration of justice in Alabama. TIle recipiont is presented with a crystal gavel bearing the state bar seal and the year of presentation.

Nominations are considered by a three-member committee appcin ted by the president ef the state bar. which then makes a recommendatiCtl to the board of bar commissioners with respect to a nominee or whether the award should be presented in any given year Nominatioos should ioelude a detailed biographical profile of the nominee and a narrative outlining the significant contribution(sl the nominee has made to the administration of justICe. Nominations may be supported with letters of endorsement

NOT I CE To members of

The Order of the YOLI are eli gibl e to become an Associate M cmbcr of the Uni versity of Alabama Sc hool of Law Chapter of the Order of th e Coif,'" even if you were e lected to T hc Ordcr by anoth er lnw schoo l. urc accorded nil the rights nnd priylleges of regular mCl1lbl:flIi nnd nrc invited to mle nd the Cholller'5 Annuul B rcokra~1 Meeting during the AnnulIl Meedns "f the Al~b;lInli Stote Bnr Oues (S2()(ycllr) help \0 fund ~holarlihip~ for dc\cfyins luw students.

Associllic rncrnbl:rs

To beco me an A ssoc intc M ember contact: Office of Deyelopment, The Uniyersity of Alobmuo School of LIIw B o~ 870382. Tuscnloosn. AL 3!'i487路0382 Phone: (20!'i) 348-5752 I'ux : (20S) 348-6397 - "" - 1, ''''''''', ... ,,,. ... _

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Notice of Election Nolice i, given herewith pursuant to the Alabama State Bar Rules Governing Eleclion 01 President·Elect and Commiuioner.

President·Elect The Aleb<tna Stete Bar will elect 8 presidenHllect in 1998 to IISSUI'l9 tho Pfosidoncy of the bar in July 1999 Any ca~idate rrus! be II member In good standing 00 March 1. 1998. Petitions nominating a cfndidato must bear Ille signature of 25 members in good sKmdlng of the Alabama STeta Bar lind be retolved by Iha secre!ary 01 the state bar 00 or before Malch I, 1998. Any candidate lor this of/i.e mJst also submit with the nominating pelitioJ'! Bblack and while photograph and biographical data to be published In the May 1999 Ale/;Jama lawyer.

Ballots will be mailed between May 15 end June 1 and must be roceivod 31slate bar hlladquarters hy 5 p m. on July 7, 1991), Commissioners 8<lr comm'ssioners will be elected by those l8'N'{8rs with their principal offices in the following circults.I«; 3"; 5"; 6", ~ace no, 1; 7"; 10", places no, 3 and 6, 1:}-, places no. 3 and 4, 14"; 15", places no, 1,3 a004, 25"'; 26"'; 28"; 32"'; lind 37". Additional commissioners Will be el&cted in these circdlS for Gilch 300 members 01the SlIlte bar with principal oflices horein, The IWW commissioner positions will be determined by 0 CItflSI,l$ on Mlrch I, 1998 and vacafl(:ios cefti fied by the secratary on March I S, 1998.

The torms of ally incumbent commissioners are relamed, All SUbS~UB nt lelms will be 101 three yeers Nominations may be made by petition bearinll the signatures of li'/a mambers in good standing Wilh principal offices in Ihe circulI in which lhe el3(;tlon will be held or by the candidate's written declaration of candidacy. Either must be reeelvltd bv the seCiCltar( no later than 5 p.m. on the last Friday in April (April 24, 1996), Ballms will he prep(lled alld mailed 10 members between May 15 and June I, 199B. 8allots must be voted and returned by 5 p,m. on the slICond l uesdoy in June (June 9, 1998) to state bar headquarters,

~

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Newly Revised ABICLE Handbook!

Alabama Appellate Practice: A Lawyer's Guide Will be introduced and used as a handout at an important program o n

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A

Practitioner's Guide to the Basics of the Taxpayer Relief Act of 1997

By Jeffrey B. Carr!

F

ollowing a myriad of b.,ck· room deals and arm twisl· '7'",U jng m.1neuvers that would make Mn the. staunchest bureaucrat blu~h, Congress, on J\lly 31, 1997, pa.wd lhe Thxpllyer Relief Act of 1997 (the "Act"), President Clinton sillned the legislation In\o law on August 5.

1997. The Act represents a compromise between lop congreuional and presidential representatives. and Is the first significant fedml tall reduclion since I~ona ld Reagan signed the Economic necovcry Tax Acl, some 16 year1 ago. Although Ihe Act does not change the basic structure of OUT tax system, It does make hundreds of revisions to the tax laws, mIIn)' of which are implemented in ineremenls over a number of }'eilTS, In fact,

numerous rules, exclusions and deduction amounts will chIlngc. and continue to change, well into lhe next century. To 5<1)' the It-lSI, Ihe vast changes to our lax system Me lechni· clll in nalure and very f~r reaching, lTh'\king lhe implementation and undentanding of the Act complex Indetd.

With that in mind. the fol· lowing is an auempt to highlight and explain wme of lhe key changes affecting lawyers and their clients. Certainl)" all of the nuances of the Act will not be covered. As is the case with any artkle of this type, all statemtnts made hert n should be independently verified before being applied 10 a particular fa ct sit· uation or communicated to II client.

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Aeduetl.n. And

"===" Capita' aalns nat•• GencTlilly considered to be the crown jewel of the n(:\\ legislation. the Act

makes signifi cant changes to the rules governing the taxability of long-term g..lins on non· corporate capital assets.

Although the top tax rate has been

reduced in most cilses from 28 percent to 20 percent. thc holdinll period required for long-term tre"lmen! has been increased. To further compliC<lte matters, Lhe date when the property is sold (and in some ca.~e~ acquired) eM play 1\ vil.,1 role in determining whether the new prefer. ential trclltment is allowed.

Needless to u)', the different ru les on

holding periods make it di((icul! to determine which rates apply. For example. fo r sales of ctlpital assets sold tlfter May 6, 1997. but prior 10 July 29. 1997. the maximum C<lpit(ll g,lin5 rate hilS been reduced from 28 percent (or indi· vidu'lis. estiltes and trusts to iI maximurll ratc of 20 percent if the asset was held for more than 12 months.

However. for la~payer$ln the 15 perCCllt

income tax Oracket. the maximll1n rate on lonll-lerm capital gains under this sccnllrio wO\lld oe 10 pen;:ent instCild of 20 percent. [n the eyent a capital ~s5et Is sold on July 29, 1997. or Inter. the new 20 percent maximum rate wi ll apply if the assel was held for more than 18 months. The old 28 percent maximum rate continues for capital assets sold after July 28. 1997 and held for more than 12 months, but less than 18. Additionally. capital gain on a sale o( de preciable real property lhal is owned for more thim 18 months is taxed at a top ratc of 25 percent to the extent of previously deducted depreeiiltion.

Beginning in 2001. an 18 l)Crcent maximum rate will ~ p ply to property acquired in th1lt year or Illler if hc:ld for more than five years. In some special instances, even if the transaction would 1'1 0 1 otherwise qualify. taxpayers may oe able 10 take adva n ta~e of the 18 percent rale on property acquired before 2001 by "marking 10 market" on JanuOlry I. 2001 and P<lyinll the resultinll capilal g<lin~ t<lX on the appreci~lion lIS of Ihal date. Under Ih~t scenario. if the property is held for more thlm flve yea rs, the 18 percent r,lte would apply to any future appreciation. Additionally. taxpll~'e rs in the 15 Ilercent income \lilt bracket will be able to take advantage of an 8 percent maximum rate on capital (Issets sold after 200~ if the property was held for more than five years.

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Exeluslon

Effective after May 6. 1997. if a taxpayer sells II home that was used 115 a principal resi dence for 'It Icasll\\'o of the previous five years. a single filer (or married couple filing 5eplHale) can exclude from his income up to $250.000 of gain from the sale. Likewise, joint fiIH$ ca.n exclude up to $500,000. As previously noted. to take advantage of this new exclu$ion. the home must hl!ve 34

JAOIUAR'I' 1000

been used as a principal residence II total of two years in the past five.year period. However. the home need not hilVe been used fo r two consecutive years to be eligible for the exclusion.

The home MIle exclu.~ion is <lvailable rega rdle$~ of age. <lnd shou ld be <lvailable on the s,,\le of more than one prlncip1l1 residence so long as the taxpayer don not use it more than once every two yean. Furthermore, ~ny s,,\le consummated prior to May 7. 1997 does not count in determinin~ whether a taxpayer has milde more than one sale in the preteding two-year period.

With th,lt s,lid, in CHl ilin ci rcums t'l nce~. <I taxp,lyer who does not other· wise qualify for thc exclusion either bec1luse the home hu llOt oeen used tiS a principal residence for at least two of the lasl five years. or because the taxpayer sold another principal residence less than two years before the date of Ihe sale, may sti ll be entitled to at least a partial exclusion if the home was sold due to a change of place of employment. for h/!l,Ilth re<l~ons. or for some other reason allowed by the illS. Finiltly. t1lx payer$ can elect nol to apply the new rulH in certOlir\ circumstances if the sale occurnd prior to August 5. 1997. or if It SlI1c5 contr1lct was in effect on or before that date.

~ ~

Educ.tlon Tax Break.

Another major area of chantle is in the education arena. To say Ihe least. mJmy eduClllionlll incentives were included in the Act. One of the m1ljor changes Is the Act's creation of two ncw post-secondlll')' educ1ltlon tax creditsthe HOPE Scholarship tax credit and the Lifetime Learning lax credit.

The I-l O I' I~ credit is based on a perstudent concept. and is allowed for the first two ye~rs of posl-lieCondal')' education. The credit is limited to 100 percent of the fir5t $1.000 of qUlIlifyinQ

annual tuition expenses and fees. and 50 percent of the next $1.000. I-Ience. lhe total annual maximum exclusion is $}.500 per student. It is available for tuilion and eXI>enses paid arrer 1997.

The Lifetime Learning credit. on the other hand, is based on a per-taxpayer concept. It is lwailable for tuilion and fees paid afier June 30. 1998. Its main purpose is to help cover college degree prugram expenses after the fi rst two yea r~. plu$ educ,ltionul expenses necessary to acquire or impro~ job skills. At the present time. the credit amount is 20 percent of annual tuition ex~n~~ Mul fees up to $5.000. The m:iXimum credit of $ I,000 (20 percent o( $5.000) Is available regardless of the number of students in the family. The limit increases to 20 percent of annual tuition expenses and fees up to $IMOO in the year 2003.

AIIOw<lbic tuition expenses and fees for both credits ,In redl,1ced by grants. sc holarship~ ,md employer-provided asslstarlcC, Additionally. both credits are phased out between adjusted gross income of $80.000 and $100.000 fo r joint filers. Imd between $40.000 and $50.000 for other taxpayers. Unde:r the: Act. neither credit is available to mar· ried taxpayers filing separllte returns.

In addition to the newly created tax c.redits, bep;inning next year. a new deduction will be iltlowed (or interest p<lid on CJualificd educational loans. This i~ true r~gtJ. rd l i:S$ (If whether the t,,,(pay' er i5 able to i t emil~ deduction$. A qualified loan is one Incurred to pay qualified higher educational expensu of the ttl ~­ payer. his spouse or any dependent. The: deduction is phased out between adjusted gross income 0($60.000 and $75,000 for joint file rs. and between $40.000 and $55.000 for other taxpayers. Li ke the tax credits. the Act docs not allow a deduction for married ta.~payers who file sepa· Ttlte returns. The dedl,lction is limited to $1.000 fo r 1998. $1.500 fo r 1999, $2,000 fo r 2000:md $2,500 fOr subse· Quent years. Only interest paid during the first 60 month ~ that interest payments are required under the terms of the loan Qualify for the deduction.

An additional educational incentive under the Act is that tax breaks related to the earnings on contributions made to qualified prepaid state tuition progrlLms created ~LI1der last year's leglsla· tion htlve been exptlnded to retroactively cover cont ributions to pay for room .md bOHd. as well as tuilion :md fei:~.

In addition to these bcnefiL~. beginning in 1998. the Act allows parerltJI to establish educational lRAs for each child and make annual non·deductible contributions of up to $500 to each, However. contributions cannot be made after the child rellches the age of 18 ye;m, E<lrnings on education.1! IltAs will accumulate lax-free, and tax·free withdrawals r'l1ay be rn.,de to pay fOr undergraduate or gradullte education:!1expenses. inch,lding tuition, books :!nd room and board. The phase-out for this benefi t is l\dju~ted gross income o( $150.000 and $160.000 for joint filers. and between $95.000 and $1 10.000 for single taxpilyers. Subject to these limitations, grand~ren ts and other individulIls may be able to establish educational lltAs to benefit grandchi ldren and designated individuals.

[D. 1,nC~." d

IAA Opportunltle.

Effective January 1, 1998. numerous changes to the 11M rul ~s may be taken advantage o( by taxpayers. Under the new law. traditional tax·deductible lRAs will be available to more taxpayers.

Specifically, the adj usted gross income limits of those eligible to make deductible JIM contributions will gradually increase to $80.000 for married tax· paye r~ filing jOintly by the year 2007. and $50,000 for single: taxpayers by the year 2005.

Addiliona lly, the Act allows llr"\ irldividual who is not an active participant in a qualified retirement plan to contribute and deduct up to $2.000 to an Iltt\ even ifhis spouse is an active participant in a qualified reti rement plan. As C\leryone

recalls. the old I ~w proh ibi t~d dcd uct ibl~ contributions if the taxpJyer's spouse parlicip>'ted in employer sponsored retirement pl~ ns. The new dtduction is phased out between adjusted gross income of $150.000 and $16MOO. Another change is the cre~tion of the new ROTH JI~. Contributions to ROTH JlQ\.~ are non·deductible. HO'n'ever. their ~amings accumulate tax·free. The lesser of earned i rlCom~ or $2.000 on be CQl1tributed annual ly. rcducc:d by any contributions m~de to traditioMIIHAs. The phascoQut for contributions to ROTH 1ltA.~ is adjusted gross income bet\\een $150,000 and $160.000 (or joint mers,alld between $95,000 and $110.000 (or singles.

Beginning in 1998, withdr~wa ls from t radilion~l lIl.As may be taken to pay for {jl,laHfied hillher educational expenses of the tllxpayer. his spouse, dependent child or p;randchi ld, without incllrring the 10 percent I)(!naity tax that generally arises for wi thd raw~ l s m~de prior to the age of 59 llll. Nevertheless, these wilhdr~wa l s may be subject to federa l income tax and the alternative minimum tax. if applicable. Allowable expenses under this scenMio include tuitiol1. fees. books. room and board, and equipment requi red for enrollment and attendance to an eligible edl,1clltionlll institution. tn addition to the allowable early withd raw:!ls fo r educational expenses, pen~ l ly-fr(:c wi th drawlr l ~ from tr~diliOn ­ ai lRAs can be taken to purchase a fi r~t I)rincipal residence of the ta>.payer or an immediate (amily member. A$ I0,000 lifetime limit applies to withdrawals under this situation.

~ ~

Aul •••• , Hom. Office Deduction.

Beginning in 1999. mOre ta~paye r5 may be able to tOike deductinns fo r at least some of tile costs of working out of thei r homes. This is true due to the Act's change in the definition of "principal place of business."

JAOIU.IIRY t OUllI 30

Under the nEw law, II home office clln qualify I1S a principal place of business If two tests 8re met, First. the taxpayer must use the office to conduct adminis· trativt and management activities of his trade or businus. Second. there cannot be another fixed location where the tax· payer conducu those activities. Should the new definition be applic."lble.taxpay· ers may also bt enlilled to deduct the cost of travtling to and from thei r homes to olher locations where their trade or business is conducted.

f.

E,I.' ••nd Olft T•• ~=-=-~ eh.nge, One of the major changes, if not the major change. in Our tax ~YSlem is the Act's increase of the unified credit exempt ion. For approximately 21 years. gift and estate Ulxes on transfers mllde by taxpayers have been calcuillted by apply.

30

JANUARY

"fill

ing it unified rate schedule. Until recent· ly. the unified credit has allowed cu mula· tive transfers of up to $600.000 to be sheltered from estate and gift taxes.

Beginning in 1998. however. the unified credit will be gradually Increased. The increase will be phased in as follov.'5: Tax

'tear

1998 1999 2000 and 2001 2002 and 2003 2004 2005 2006

Exemption Amount S625,OOO S650,OOO S675,000 S700,000

saso,ooo S950,000 $1 ,000,000

Tile increasing unified credit will reduct the number of estates subject to est.lle lax. It will also permit t\ married couple to pass up to $2.000,000 laX (ree by the ~ar 2000. 1-II,l\\'eVf!r. ill! in the past, coordination of both spouses' respective est,,,!! plans will be n:(lllired to fully maximize the use of the credits available.

Unfortunately, the extreillely wealthy arc not lIS lucky as the rw of u~ with respect to the new unified credit amounts. Thl ~ is due to the fact that the Act makes no change in the provis on pll.1Sing out the unified credit ror est~t es in excess of $10,000,000.

Another major change under the Act is the new Innation indexing o( vll l'iou~ e~tllte and gift amounts.

Begi nning in 1999, t.he $10.000 Imnual gift exclusion. the SI,000,000 gene r;l ti o n . ~kip· ping trust exemption and the $751),000 maximum reduction (or special ust valuation will all be adjusted for innation, The base for adjustment will be the consumer price index for 1997. The annual gift exclu~ion will be adjusted in $ 1,000 multiples. lind any adjustment that would resul t in less thlln II $1.000 change from the previous ;mnunl excl u· slon IImount will simply be ignored.

Both the generation.skipping trust exemption and the special use vnluntion

amount will be adjusted In $1 0.000 multiples.

The Act also codifies II new estate true exclusion for (ilmily·owncd businesses.

This exemption Illiows the exclusion from estate tax a portion of the value of family-owned buslm:sses. The amount of the extra exc.lusion is the difference bel\o,oecn $1.300.000 and the unified credo it amount. For example. the amount of the exclusion IIvailable in 1998 would be $675.000 ($ 1.300.000 less the $625.000 unified credit). By 2006. however. the exclusion drops to only $300,000 ($ 1.300,000 less the $},OOO,OOO unified credit). In either event. the exclusion is in addition to, nnd not in lieu of, the npplicable unified credit.

For the family-owned husine» exclusion to apply. the business must be a "qualified famil y-owned husiness." To gain recognition. many strlngtnt. com· plex and confusing requirements must be met. Generally, a busine» is II quali. fi ed family-owned business only if (I) 50 percent or more of It is ()\Ilned by the decedent and his or her family, (2) 30 percenl or more of it is owned by the decedent ,md his or her family if 70 percent or more of the business is owned by two famil ies or (3) 30 percent or more of it is O\\'ned by the dectdtnt and his or her family if 90 percent or more of the business is owned by three fa milies. The exclusion is available Olll)' if the estate lax value of Ihe decedent'l interest in the business exceeds 50 percent of hi' Sross estate, ilnd the decedent or his family owned and/or mahrillily participated in the business for five out o( the eight years preceding death. l~inally, the business mu~t continue in the family for ten years after the dntc of death. There are tax recapture rules for failu re to comply with these requirements.

Anolher Important aspect of the Act is the valuation methods of real estate allowed fo r family.owned (arms or busi· nesses under Section 20321\, Now, if the renl properly is continued to be used by the family 115 a farm or business, such real estate CAn be valued at its current use value, rather than at its fair market

value considering Its highest lmd best U5e. To qualify, a proper election must be made by the per$Onal representative.

Unlike the old law. the Act providts tht personal representative with a reason· able time to corrett it ddective election, The new law also chaillfes the install· ment paymenU of estille taxes attributable to certain closely held businesses. 1\10re precisely, effeclillt in 1998, the Act alters the rate at which interest is charged on the dderred tax, Interest calcuilltw on the nrsl $1,000,000 of "Oilue in exCeM of the unWed credit tu.s been deerea«:d from 4 percenl lo 2 percent. Interest ren",lnlng on the remi'lining u tate t.lX will be 45 percent of the Jns underpay. ment rule, All estate that elecls to pay the tax in installments. hOWt....'Cr, will not be allowed to deduct lhe diSCO\lnted interest as an est,lle lax administrOition expense,

IG.J ::::~~.nl' of

"""..... Attorn.y.' F••• Por the first time in the history of the tax code. the !itS has specincaliy targe!. ed a pMticular induslr; for special informational reporting. Attorne~ corn· prise the targeted group. The Act specif. ically require5 that any person engaged in It trade or business who makes a payment, regardltu of the amount. to an attorney must report the payment on an 1099B information return fil e~ with the IRS. The old law exempted information· al returns for payments made directly to corporations for legal services rendered.

Ilowever. the new Act abrogates thM exemption.

Tells the whole story about U.S. DistrictJudge Frank M. Johnson, Jr. and his years on the bench.

Filled lI'ifh fme fl1lCCfioks, sJoril'S of his growing up"n lIorlbAlabamll, fhe d(~)'- ill alld dflY·Offl dmlillg with COlls/ill/tiolla! iSSIf(!S-lJ1f11~I' /1'0111 bb' OlllllllielllJOIiII, 'ibId as if bas !IeJler been lo!d be/Ott!,

An interesting aspect of thi, new reporting requirement Mi$oU when a monetary settlement is not 011 ocated between damages and attorneys' fees. In such a case, the Act ~nu to suggest that the entire settlement must be reportt'd on the Informational return. For eXllmple, suppose you rel}resent a business client in a civil suit pertaining to your client's busi· ness. and your fee i\mngement is onethird of any recovery, Prior to trial, you settle tht suit for payment of $100,000 to your client, a.nd the St:Ulemenl agreement does not a!loc.,te the proceeds between damages and attOl'l1e~' fce5, The Act dictat~ that the enlire $100,000 be rcportc~ on the I099B as a payment to the attorney. This certainly can lead toa lot of problell15 for lawyers with the II~S. As if that were not enough. the Act gou Mn further. Now, upon request.

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a.ttorneys must promptly sut1ply their taxpayer identification number to clients. ,,'ailure to do so subjects the allorney to a. $50 penalty for each instance, and subjects any payments to backup withholdings.

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O'h .. Ch.n ••• The Act contains a multitude of other ch:mgcs. Some o( those changes concern reporting requirements (or certain real estate Irans.1ction5 and charitable !tifts; deductions (or securities donated to char-

ilable organizations Klf·employed con· tributions to 401{k) plans; the alter""tive minimum tax for cmain corporations: and the deductibility of health insurance premiums for self-employed individuals.

As stated at the beginning, this article is simply :to thumbl\.\l1 sketch of some of the major tax provisions in the Acl. It is not all inclusive as there lire hundreds or other changes out there. With tax time just around the corner, it is a cer· tainly that lawyers advising clients on tax and related issues will be flooded with Questions about the Act. Only by sl udyin!t the new I~w, ,md working hand in hand with your Certifi ed Public Account<lnt. will the solutions to yOur clienL~' problems lx:come apparent.

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LclU\' Itk hlr, VI' Dnd Q.~II'IJI COUfllolll, LhrvsJcr MI~c COWI"~,Id, I'rtikle'll arod CEO. Carol

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~II I.. us'~m 'nlomu tlon for lilt Ihrcc d~y ~how will M ~~allublc lor USt ill no tOil 10 ~ !1 rnd~~)

oCh«k YES! I n'06I bI ~ c,,11 847.384.174I ro "Il'''''' 0IrI our web lilt .1 : www•• _ , ...."pm l .m.lI' lpome .......... Dr'

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. ,of/as options and choices int.vived ill dilJOTCe

Alabama State Bar Publications Order Form The Alabllnla Sldll' BM i.~ p1e.l&cd to make .WillI,lule 10 incli路tidual <l1I01l1('Y$, fifms .1I1d loe,l) b;u ilssocitltions, at cost only, a ~eries of brOl.hurcs on ,1 variety of legal tOI)k~ of Inlcn路~t 10 Ihe gcncra ll)ubllc.

Below is i1 curren! 11511n8 of publit Information brochurl'~ dV,lil,lhle from the Alabal'nll St.lte Bar for distribJlion by

local bar .w.odations, undcr

c~l.lbll\h('(l suidclinl~ .

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Last Will & Testament $ 10.00 per 100 ... C:OVl'r~ ,'~pecIS of CSt.lll' pl.lnning and Ih1.' iml)Oftance of ",lvin~.1 will

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0 1, ,

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f'IeJS(, r('llllt CI lEeK OR MONEY ORDER MAD拢" fJA YAHLE 10 TNE ALABA ...路,'" STArE lJAR for thc Jmounl ri ~1t-'d on Ihl.' TOTAL line ;md forward it with this ordN forr'll 10: Susan II. I\ndr~, lJilcctor 0( COlnmullic.:.!tion~, AI,I1),1I11.1 StaK' B.: r, P.O. Boli 671 , Mootgom('f)', Al 36101. (jJ4) 200-15 1S

JANUARY . 0 . . , J\)

ALABAMA STATE BAR SECTION MEMBERSHIP APPLICATION To join one or more sections, complete this (orm lind attach separate checks p.1Yllble to each section you wish to jOin. Name Firm or Agency

Office Address _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

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Remember: Attach a separate check for each section. f\1itil lO: Sections, Alabama State Bar, J~O, Box 671, Montgomery, AL 36101

411

~IINU"RY

.1190

TOTAL _ _

.

Ne\N Life For

By Teresa C. Minor

reccnt decision of the Alabama Supreme Court has' revived an often-forgotten and seldom·used rule d civil procedure. Ala. R, eiv. P. 56(0. In £X parle Waf·Marl SIOn!S, Inc., 698 So. 2d 60 (Ala. 1997). the courl granted a writ of rTkIndamu$ directing Ihe Circuit Court of Autaugll County, Alabama to set aside its order allowing the plaintiffs to conduct addiliOll/l1 diKOVCry bdoTe answering the de(endllnu' pending summary judgment motion due

A

to lhe pl~intiff5' counsel fllilure to COIl'lI)ly with Ala. It eiv. P. 56(f). 'rhe CllSt was 11 potential class action challerigiril! the

collection of ~11 e5 tax on the sales of computer software . The dcfendan15 moved for summary judgment Even though the plaintiffs' counsel h.-.u not filed a Rule 56(0 ll((jdavit explaining that the lack of discovery had caused the plainti((s to be unable to respond to the motions, the trial court denied Ihe motion. on the basis that the plaint iffs had not had sufficient discovery to adequately respond.

In granting lhe petition for writ of mandamus, lhe Alabama Supreme Court cited Rule 56(f) which provides: (f) Wh(:'11 ellirielliiary mutter is 1I11C1/Xlilllbl(:'.

Should It appear from the il(fid~vih of 11 parly opposing the motion thilt the party cannot, for reasons stated. present by affidavit fac ~ essential to justify the party's OPPOSition, the court may deny the motion for summary judgment or may order a continuance to permit a(fit\avits to be obtained or depositions to be taken or discovery to be had or may make such other ordfr as is just.

Ala. R. Civ. P. 56(f),' This rule, according to the Alabama Supreme Court, rcquil'f!J counsel opposing summary judgmel'll to tile an affidavit explaining why he or she Cilllnol present e5s cnli~1 facti to oppose the motion. Because the plaintiffs' counsel had not filed sllch a motion, the Idal court erred in denying the defendants' motion on the grounds that

the plaintiffs should be cntitled to conduct furth er di5Covery.

Accordingly, the court granted the writ dirccting the trial court to vacate it order!

A •• sons Artlcul.t.d In th. Atfld.vlt The holding of £X porflllVal./tIarf Slol'f!s force! practition-

ers 10 re-examine I{ule 56(f) and consider. if opposing II summary judllment motion. what reasons must be expressed in the affid~vil In order to ensure Ihallhe slimmary judgment motion will be continued. The following is a list of reasons that have been expressed in 5uch affidavits: A. r t ndency of DlscOVfry or Insufficient Time for Discovery The fact thllllhe non-movant 1'IOlS discovery pending against tht moving party is the most frequently used rCllSCn asserted

in a Rule 56(f) affidavit, Nonetheless, Ule mert fact that discovery is pending will not operate to foreslallthe court's ruling on a pending summary judgment molion M n If II Rule 56(f) affid;wit is nled.:l lnstead. the affidavit must express tint the disCovtry Ihal is pending is "crucial," and the burden of showing the "crucial" nill\ITe of the discovery is on Ihe a((iant.'

For cx.lmple, In Parr /I. Coodvcar 7i'rc & Rubber Co., 641 So. 2d 769 (Ala. 1994), the defenct.lnl. Goodyear, moved for sum·

T...... O. Minor , ..... G MinOI,oI the BIII'fIIrGham lirm 01 BaIcn & BIngham, ~ a II'l/IrIVlef oIltlO BlnoogtllllTl Bar AIIoclauon, !hi Alabama SILI!O Bar and till Arner1c:an Bat AIIoclaIion She II alSO a rnambet' 01 PN Kappa PN lin(!

Curia Honor\9. Minor graduated I,om Aurum Url/v(lrtily and 11'10 Ci.n1Oorland School 01 Law. wt1Qfe Iha Wi!' an aseoclolll 0<1'101' 01 tile Cumb6r[snd LIIW R6V16W

mary judgment on the plaintiffs' claims that it had improperly One caution should be noted. Although the court in Griffin disposed of hazardous w4I$te al a landfi ll, thereby causing a did acknowledgt this as a lIalid reason to support a nule 56(0 devaluation of the plaintiffs' property. At the time the trial affidallit, the court went on to hold that the trial court did court granted Goodyear's motion, the plaintiff had outstanding not err in refUSing to continue the summary judgment motion. The reason for this ruilng was because there ,",'as ell;. discovery reque!tJ to GoodYl.'ar concerning the nature of the materials disprued at the landfill.· On appeal of the grant of dence thilt the non·mOl/ant hlld been gillen approximately two summary judgment, the Alabama SUllreme Court reverSl!d the months to discOIIer the ellidence within the control of the mOiling party, but had (llited to do 50. Id. at 543: S('(! $ummllry judllment. finding that the outstanding (I{SO Cell/ral 1\CC<!plallOO COl1l, II. CoIMialO(lIlk di~collcry WilS "crudill" to the issues Tlliscd by of A{abama, N.A.. 439 So. 2d 144, 147· 148 thl.' mollon. Specincally, the discOllery sought information regarding Ihe nalure (Ala. 1983) ("!tlhe defendants cannot forestall a summary Judgment by of the matl.'rlllis dispost:d by GoodYear at the landfill In orlitr to counter the asserting that the op~osing party has TlieJtolding of possession of pertinent documents basis of the molion that the m.1teri~ als were not haUlrdouS. where the defendant failed to utiEx parte Waf-Mart litt discOllCry to ~cquire elli · Coolltrsely, if the discovery sought is not "crucial,~ it is dence to rebut the plaintifr$ contentions"). error (or the trial court to conforces practitioners tinue the pending summary C, UnallllilDblllt)' of I judllment motion in order for to re-examine Rule 56 (f) and WUne.. the di~cOllery to be complet· cd. Dim110ll(I I'. A'OIlO/l, 621 Althollgh no Alnbamn case consider, if opposin. a summary So. 2d 26:1 (Ala. 1993) iII(lshilS considered this reason, trates this 1l0inL In this federal decisions have recaction ~king the defenognized that II sufficient judgment motion, what reasons dant's proportionate share rtilson to include within II of a partnership debt, the I~ule S6(f) affidallit is that a must be expressed in the crucial witncss is unallailplaintiffs' motio:. for sumable. UI/lled Slates v. mary judgment \\'aJ granted affidavit in to en despite the defend.lnt's asserGollram PI/untmcul Carp., I , . ~ c,AII" F,R.D. 744 (D.C.N.Y. 1941 ) tions that Ihe plaintiffs hild (request (or continuance failed to res(Xlnd to outstand· that tHe summary properl}, granted where witness ing reques\lI for admissions. likely could be located with gOIl· The trilll court c:!id not deem the judgm t:motion will tie ernment's assistance), 8ul see requestJ to be crucial to Ihe issues raised by the 5unlm<lry judgment. (}l1ife/J SIt/les II, 1..019, macA' 2 of continued.

On IlPlX!al, the Alabama Supreme Donllybrook Place, 919 ~:2d 994.

999 (5th Cir. 1990) (affidallit did not Court affirmed. finding that the defendemonstrate how the witness would be dant h:ld failed to meet his burden show· ing that the diSOOllery \\'35 ~crucial. " foulld arld, lhercfort, request for continuance .....as properly denied).

IJ , Fact, to Oppote j\lotion are wit hin Exclu. h·e I) , " llope" that Eyldence Will Emerge lit TrIal Control of Ihe MOIling Put)' Fedeml cases illso recognize that a mere "hope" that elliAllother reason presented through a nule 56(f) affidallit thllt IS closely .. kin to the above·discussed reason is thllt the fllCts neccsdence will emerge al Irial is not sufficient to support 3 Rule 56(0 affidallit. s,'(! emlller v. DeIIOIl Group, /IlC, 774 F, SUPl). ~M)' to O]l(Xlse the motion are in the exclusive control of the mOIling p;rrty. The Alab..1/Thl Supreme COllrt described this silua176, 180 (5.1). N.Y. 1991) ("a party cannot slIcce5sfully oppose tion In Griffin ". AmericalT flunk, 628 So. 2d 540 (Ala. 1993): a 5umm.1ry Judgment motion by simply claiming that furlher discollery may yield unspecified facts thai could plaUSibly laltypical situation for the application of Rule 56(f) defeat summary judgment"): $('(! 0/50 Swrer v. Wl?Sf 15 where the opposing party cannot prestnt by amNichiga/l T/!Iecasters. /IIC" 33 1 f'. Supp. 634. 643 (W.O, "lich. "'wits facts essential to justify his opposition bec.au..se 1974), aff'd, 524 ~~2d 1406 (6th Cir. 1975). kllowledllf: of those facts is exclusilltly with, or largely under the control of, the tTlOIIing party, In such a Th. Aflld.vlt It •• 1t situ.1tion the opposin~ p<lrty should present an affiA. When It Should be Flied dallit shov.ing tlmt the knowledge or control o( the No Alilbilma decision has addressed the issue of when such (acts Is exclusively or largely with the 1110llinll p<1rty II Rute 5G{f) affidallit must be filed. Federal authorities, howand describing any attempts to obt.1ln those facts. eller. halle found that the timing requirements contained in Hule 56(cj' are equally applicable to I(ule 56(0 ilffidallits.

Griffh,. 628 So. 2d at 542.

"""

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Thus, under this authority, such an affidavit must be filed prior to the day of the hearing. Mllon-Tufa Corp. IJ. R()S$, 916 J.~2d 516, 519·520 (9th Cir. 1990) (court found that Rule 56(c) timing reQu remenls also IIpply 10 Rule 56(1) IIrri(!avits and. thus. Rule 5€(0 arfidavils must be filed prior to the sum· 1Th1ry judgment hraring): accord lOA Charles A. Wright & Arthur R. Miller. Federall'mcticc and f'roceflurll § 2740 at 53 1 (1983).

8, Stleel Oc Con ten ts' Although there Is 1)0 concrete list ofwhal mll~t be con· tained in II I~ul e 56(1) arridavit, a review of lhe reported deci· 5ions' discussing such affidaviu would re\'eal that Ihe followinll should be contained in 5uch an affidavit: I . AshOWing of diligence on Ihe part of Ihe non·movant to obtain Ihe information; 2. A detailed expression of "crucial" facts to be obtained; 3. An explanation of why a nule 56(t) rUpOn5e is not presently possible; and 4, An explanation of how continuation will au,llment the nOnmovllnl".! ablfity to e$tllblish the presence of a ,Ilen' uine factual issue.

C. Technlcalitle&

2. ThoI 00\II1 ,tlutid 10 diltcll1W 11111-"'10 11' ..... IIw ~:ns' ''''''''''1 jo.o<Ign'4nI motIone. l\eItIet. lilt COUll I\OIId l1\li1 IN MIed 01 lilt ... ~ -.Ill bt illllllIw - 1 ~ maIionI -..leI bt . . . - I btIOf'IlIw llial CIOWI. SH Id 11.2

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5 . F'Dm lhe ~~Ion, II ~ 1\01 appe.v Ihllille plliMt,lt. · .llOIn • ., !~od • 101m" Rille ~I) I NIcIavII, 001 he !lid liII I moIlon 10 COi'IIj)tIlhlll!e U Hrlod IhI! Jorm Oil Rille 56(1)" I~ . "-,,. 6'l1 SO. 2d II nl Gooo\'til Ole! not ~It U'oItIINult, tIIII thw. "'" court did 1\01 IPIIC'fIcaIy 1Iddr", ..".I/Iltr IhI!

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Of '1IidM In oppIIIoIIbn ..... bt MIVId at U.IIWQ (2) .,.,. prior 10 IIw htamD1.

SH DlI'*I"Y JO/ItI J . Coleman, III. "Summaty ~ In AI.\bamJo; 20

Cumo.l RatI. 1, 1$017 (111811) e

s.. alto '"2 Commilioe Com....nl. 10 All. R CI<i. P. 56lt) (1IJIICh.n 1"1,

davillllollid 11ftll W1th apeclflcl1y wi!)' IhI! ~"" ltYldel"lOll " no! Pln""tIy ....1lJ1Jte IfId 1ho\!1(I.,11t. .. N)ICiIICIRy II potl lllll. wllat 11J'ur' ItCtIorII I I. COII~lod 10 ~ and P'ftlt"1 I/Ie ~

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A few odditiualso appear in some decisions regMding IM e 56(1) affidavits. "'or example. in Olillt!r IJ. 1bu.7"1S4!1ld, 534 So. 2d 1038. 1042 (Ala. 19881. the Alabama Supreme Court found that an affidavit WI5 not required to be filed. Instead. In thllt case. the non-movant's brief was sufficient to serve as a I~ule 56(1) ~ffi davit because the brief is signed by the attorney as lin officer of the court' Another pointlhat should be mentioned i~ thl\t, in Ihe affid.wil, the attorney actually must request II continuance or otller appropriate relief. Johnson v. Cramer.

598 So. 2d 980. 982 (Ala. ei .... App. 1992). There is no duty on the trial court to IlPllrise coun:«:l of aVaiiabilily of Hule 56( 0.

SeeMallouv.Sullwan. 455 So. 2d 12. 13 (Ala. 1984 ). Finally. the Rule 56(1) affidavit should be precise. Haking statements based upon Information and belief is not sufficient.

Go;:ertJ//I(!II1 Street Lumber Co. 11. AmSoulh fum/(. 553 So. 2d 68. 78 (Ala. 1989): Osoom IJ. Jolms. 468 So. 2d 103. 108 (Ala. 1985).

0'""*'" &,.,,.

~14) C<oIp., m so. 2d IJ3IA11o. ltee). Not1r_ Dtd_JtI·Morr/I RHIty Co.. M$ So. 2d ..... MO IAia. Civ App IlleS): Tttrr ~ l .. ~r.I CD. . 65e so. 2d 811 . 8 12·8 13 (AWl CI<i ~ I",,)

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BIll _ ~ ~ P8rtman. 831 SO 2d OM. 10(12·1003 (Ala 1"-,) ' Inor nt(I ""OtIjIaIonI(111II eubmIMIon 01 kIf1\011I()' ~. _ 1IrfIlciftII); GrlIf/n, m So. 2d .. S4(J ImoIIon tor , COII~ no! tuflldtnI}

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Conclu.lon With ex 1)(lrlu Wal-/>Iart. the Alabllma Supreme Court hilS slgnliled Ihlll those who wish to oppose summnt')' judgment based on a lack of discovet')' will be held to the requirements of Rule 56(0, Practitioners must be careful to make their record as to "cruciBI" di$C:o...ery that they seek to acquire. but have not obtained. If Ihey are to successfully ward 0 (( it hear. ing on II pending summary judgment motion. Conversely. practitioners seeki.,g to advance a summary judgment motion now have tx parle Wal·Marl to oITer in response to the onen·heard refrain: "Bul Judge. [ need more time!"

• 17.

Endnot•• 1 Tn. teol 01 ..... . R CIY p.!I6m II kltnlbJ 10 lilt leil 01 FId R CI<i. P. 56lI).

NOble 1\ ~ 504 so. 2d 2~. 2M (...... l N7). COnHq\ltlnl~. 1tdttllI c:lI," IrU4llPl,1lng F..:;I . R C/Y. P. ~(IJ con~ per_live ... ltIari!y 10'"

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.. 387 So. 2d lie, 103 (All

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' 0" I 43

etEthics:

Concerns Regarding [-mail and World Wide Web Use b~ Rttorne~s

By Malvern U. Griffi n and Aaron p, Maurer

Introduction

In lhe practice 0( law today. anorneys are using, and are increasingly expected 10 use, modern c()mmunicalion methods.

N Olwith~ lal1l1ing Iheir adv;.ntages, devices 5uch lU cellu lar phones, facsimile machines, pagers and compul er~ have introduced many new com路 plexlties into the l)n Cli ce of law, including the realm of eth ics. 'tWo of the most recent communications

advances, electronic mail (~e-mall") Imd th ~ World Wide Web! (herea(ter the "Web"). are among the most yaQueI)' c.leOned from an ethical standpoint. !teeenl decisions concerning the use of c-mail and attorney websites on the Web have provided little guidance to lhe practicing <ll\orney regarding which activities are allowable and which are forbidd en.

For Instance, " law firm mi"ht have a website that details the /ITea~ of i t ~ practice. lists the biographi es of the memb~rs of the law firm, and provides copies of some general artides that members of the law firm have published. A potential client browsing (or "surfing") the Web happens upon the law firm 's wtbsite, and reads one orthe posted articles, After deciding that she would like to explore what the firm could offer in terms of legal advice and representation, the potential client clicks on one of the ubiquitous "e路mall the firm " buttons and submits a (ILicry shar路 ing specific details about a millter she Is involved with and IIsks for IIdvicc,

Several tuues arise in this hypothetical. Pirst, has the law fi rm engaged in illegal advertising over lhe Web by PQsting a website? If an unomey with the law firm respond5 to th ~ email, h,\5 the aHomey established an attorney-client relationship? If so, then has the attorney committed the unauthorh:ed prllct ice of Imv if the potential client is located in a state where the attorney is not licensed to practice? Further, in responding to the potential client via e' mail, can the attorney be certain that he has not divulged client confidences, there· by violating prO\llsions of lhe ethiC$ code and pouibly expos· ing himself to liability for malpractice? While the Alabama courts and the Alabama State Bar Center for I'rofeuional I(csponsibility have not yet explicitly addressed these issues, indications relWding potential answers can be glenned from other sources. The following provides a brief introduction into thcsc and other issues regarding attorneys' use of e-mail and websites, and prO\lidcsl/.uidance regarding how one might a\lOid ethical \liolations or malpractice claims originating from such usc.

E-mail

Why u •• E·m.lI? E-mail is rapidly growing in popularity as a means of com· munication. E·mail combi nes the speed of II telcpholle transmission with the accuracy of teRt. as well as incorporating the ad\lantagc~ of being easy to modify, relati\lcly incRpcnsi\lc and reliable. Conlpllrcd to facsimile machines. eomaill! sUjlCrior since ills usually delivered directly to the desktop computer o( the addressee and, unlike facsimile machine phone num· bers. it is unlikely that different e·mail addresses will be con· (used with one another sinc!! e-mai! addresses are usually descriptive o( lhe addressee. That is. the addressee's name usually comprises a portion of the e-mail address (for example, johndoe@firmname ,com). ro10reover, e·mail can be used to send documents prepared with a word processor or ~prelld­ ~hcct program over the Internet as an attachment, thereby maintaining the clfctronic format ilnd integrity of the document. This is particularly useful when drafting or revising a document with a remotely locilled party, I"urther, e·mail ad\lanlageously ean (I) he easily $tored or archi~d in a rela· li~ly small amount of computer memory: (2) can be easily

_.....

M .'".," U. Or'nl" Me/¥tln U a ",,,".

edited: (3) can be easlly replied to Or forwarded: al'ld (4) can be reproduced or copied without any dellradation,

Technologic.' B.ckground In order to more fully understand the impllclllions of u~ing e-mail.sollle background information about lhe ttehnology Involved Is useful. For the most part. an e . mailtr~ ling via the Internet is sent as a plurality of packets of information.

For example, when the POtential client (rom the above hypothetical sent e·mailto lhe law I1rm, the e·mail WiU not sent in one piece like a letter sent through the postal UlVice.

Instead, the e-mail .....11$ broken up into $mall chUMS of data at the client's computer. Each data "packet" contained II portion of the mesSIlge as well as II label with the destination and return addresses. The data packet~ were then directed wer the Internet through a multitude of specialized COrrll)uters which automatically routed the data packets to successive computl!rs until each packet reached the desti nlllion address, '\1 the de!tination, tht data packets were put back in order. reassembling the e-m.'lit into a single document , The e·mail was then passed to the e·mail 50ftware on the computer lind then to the recel\ling attorney. Though it is possible that all of the data pIIckeu took the SlIme p.'llh through tht multitude of connections compriSing the Internet, It 15 highl~ unlikely.

Ethlc.1 Concern.

Foremost among most attorneys' concerns In communicatin~ with clients \lia e-mail is the atlorney's duty to prottet confidential information. This duly arises, at least in pari, (rom Rule 1.6(a) of the Alabama ltules of Professional Conduct. which imposes the obligatioo that an attorney ~not rM<lI informlltion relating to the representation of the client unless tht client oon· sents after consultation.'" Attorneys are also fearful that e·mail may not (all under the scope of rules protectinllthe attorney· client pri\lilege, ..... hich rules state that communications are privileged only if they are IllIIde in, and mainillinw h, confidence. 1 The concern arising in using e·mail systems is that email will not be considered to fall in the category of communicali(Jn~ made in conl1dence, and thus, will not he l)rlvUc~ed.

The Old St.nd.rd The American Bar Association (ABA). addressing the issue o( on·llne communication in II rela\i\'ely outdated 1986

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report, suggested that hlwyen should not communicate over any sort of on-line network without being certain that the system was capable of confidential. reliable communication.'

Essentially following the lead of the AIjA report, the Iowa Supreme Court I3wrd of Professionall-:thics and Conduct slaled in a 1996 elhics opinion that attorneys sending privileged material over the Internet must either obtain the client's consent or encrypl the sensitive material ! In a 1995 ethics opinion, the Soulh CaroHna ~: thi cs Advisory Committee followed thl ~ re~ tri ctive po~ition lowllrd online communication in stating that allorneys ~ho uld receive their client's permission before communicatiflg online.'

The recommendation set out by the ABA report afld the above ethics opinions are considered archaic by many given the technology now used for e-mllil.' l'articularly, conSidering the complexities involved in intercepting all of the data packet~ forming a single e-mail message, lmd given Ihe volume of e-m<lil routinely pa~sintlthrough each computer on the Web, It appears that e-mail users shou ld have the 5.1me expectation of privllcy for e·mai l as fOr other, accepted meal15 of communicating confidential inform"tion, including po~ta l m"il, fa csimile transmissions and land-based lelephone~. In facl, email is more diffi cult to intercept thall" phone con\le r'~'l ti on on an office phone, the use of which i~ not gener,,!!y considered to be II violalion of the duty of confid entiality.' Further, the I-:Iectronic Communications Priv"cy Act (ECI/A) of 1986 makes il a criminal offen se to intercept e-mail messages (the i1I eg~ lity of lappinJl phone lines was already provided by the act), and expressly provides that any intercepted e-mail message retains ils character as a privileged communication.'

The Rising Standard

Hecognizlng thHe complcxitie~ .md changes in technology, several recent decisions have concluded that the ABA rep(lrt and the South Carolina and Iowa concurring ethics decisions no longer "ccurately cmbrilce the technologicalMd ICgl11 environment with respect to the use of e-mai1. Citing several arlicles critical of the South Carolina and Iowa ethics committee decisions, the Illinois State Bar Assodalion (ISBA) issued an Advisory Opinion on PrQfC$sional Conduct in May 1997, suggesting that e·mail should be subject to the 5.1me rca50nllble expectation of privacy as ordinary land· based tekphoflC$," The rell~oning of the lSI3A opinion stating that the u~e of e-mail did not violate Rule 1,6(11) of the llJinoi$ Rules of I'rofessionlll Condllct" .....as based on two critical points: I1 th~ interception of e·mail meso ~ges, though possible, is allellsl as difficult as intercePting an ordinary telephone call : and 2) the ECPA makC5 the interception of e-mail messages illegal. " The JIIinois opinion and its reasoning were cited in 41)

JANUARV 1000

turn by Ihe Vermont B,~r Associalion in a concurring advisory opinion in which the Vermont Bar Association stated that Vermont Mtorrley~ gencrllily may communiCllte with clients by unencrypled e_mai l. u Further, the South Carolina Ethics AdviSOry Comlllittee ove rturned its 1995 decision in June of 1997 in an advisory Ol)iniof\ th,,! stMes South C<lrolina attorneys may use e-mail to communicate confidential client information, but shou ld discuss with the client OptiOflS such as encryPtion for especia lly sensitive information."

In addition to the slates noted above which have recognized that e-maH intercept ion is not a significant security risk, the Attorney's Liability Assurance Society (ALAS). a captive insurIlIlce compMy that inS\lrcs I;nge law firms for malpractice, ha~ taken the position that lin IIttomey can use e-mail without encryption when communicating with or about clients, yet the attorney should take exlr~ precaution when dCilling with matters so important that any Ihrc"t of intercept ion must be avoided."

The same ethics opinions discussed above also sUI)I)Qrt the llssertion that e·mai l should be protected by the attorneyclient privilege, Allhough it has long been illegal to intercept cellular phone conversations," these conversations have not been considered confidential due to the ease of intercept ion, ~n d thus, were not protected by lhe attorney-client privilege."

The South CaroUna Ethics Advisory Committee, recogni7.ing Ihat 111My commentiltOrs h,""e tried 10 draw a parallel between e-mllil and cellullir phone transmissions with respect to attorney-client privilege, found. on the contrary, thai em~il provided " much more cOllfidcntial 111(:"115 of communication and that pri~ilege thu~ attached." Further, the Vermont Bar Association's I\dvisory Ethics Opinion states expl icitly that "e-mail privacy is no less to be expected than in ordinary phone calls,"" Thus, il can be implied that Ihe expectation of confidentiality is at last the same (or e-mail M for ordinary phone clllI$, and that attorney.client privilege should attach to both.

There are several reasons why the old standards regarding e-mail confidentiality and attorney-client privilege h;rve given way 10 the new, The South Carolina Ethics Advisory Committee, in overturning Its earlier decision requiring that attorneys obtain client consent before using e-mllil, reasoned that its r.: hanginlt view was innuenced by the fact that "the u~e of c-mail has become commonplace and there now exists ... improvements in technology" lIScompared to when the first deci~lon w;r~ reached." Aflother contributing factor may be that. as people have learned more about c-mail. they have become more aware of how te(hnic"l1y difficult It Is to interI!thic~

tept il message. e5~daJ1y in light of the increasing volume of e-mail nooding the Internet. I~egardless of the rcasons. how· ever. as the new ethics opinions tnlIke cIe:.r. the view of e·mail as non-trustworthy and non·tonfidential is quickly vanishing.

Sugg •• ted Practlc ••

The Alnbnrllll State Bnr Center for Professlonnl Ilesponslbllity ("Cent er") has not yet made nny ruling on the level of protettion that attorneys should apply when utilbr,il'!g e-rnail to correspond with or about dien!s. Afair assumption is Ih.1t the Center ~Ullike ly follow the lead of Illinois and Vermont in retognizing Ihat unencrypted e·mail is al least :u ~ure as using a land·based leleph()I'Ie, and Ihus, the same stlmdard of confidenti:tlity should :tpply to both.

Ilowever, until all actual opinion is proffered. attorneys should not include confidentlallnfor· maliol'! in an e-ma I communica· tion withoul the client's informed written consent.

Informed consent, in this context. means that the attorney fully discloses to Ihe client Ihe possibilities of e-mail interception, and the possibilities o( losing attorney· client privilege with respett to thilt communication. This should avoid any is~ues of ethical violation, malpradrce or negligence, For those more comfort· able with computers, there are numerou~ cl')'ptographic progrflms available that can be used to encl')'pt conf1dentllll infl)rnmtlon in an e-mai!. Vor exnmple, Pretty Good I'rivllcy (l'CPIi) is a \>opular cl')'ptographic program which utilizes a public key/private key sy~tem. The public key/private key system in Ileneral enables any user to encode an e-mail message with the recipient's public key. The meuage tan then only be decoded with lhe recipient's private key, which only the retiplent should have!1 Al ternatively, most wort! processing pro· gr.llm include the caPilbility to password.protect documents.

A password·protected document may then be ~cnl as 8n attachment to an e·mall. ensurlng that only those computer users with the plIss\\'Ord will be able to view the document. It should be noted, however, that while enCl')'ption clearly offers a reasonable expectation of confidentiality, it is not clellr whether merely pass....,ord.protecting a document using a word processor wOllld be con5idered to offer the same expee· I ~ t io n of confidentiality," Another pret aution that one may tllke when using e-mail is to include a disclai mer in the subject line anti/or at the begin. ning of nn e-mail bdore the message, The use of 5uch a dis· claimer is analogous to the recommended practice for facsim· iles. The discillimer puu Ihe actual recipient on notice that the e-mail contains confidential informlltion and may deter

further dissemination of a misdirected e-mail. Further, if the e·mail is received by another attorney, that :."orney may have an ethical duty to avoid reading the c-mail and to notify the sender." Such /I diKlaimer rnay read as folloYo'S: NOT I CE:.Thi~ Electronic t-tail (e-mail) contains confiden· tial nnd privileged information that is intended or11y (or the individual or \larty identificll directly below, and oot necessa r· ily the addressee. Do 110( read, COpy or forward this e·mall unless)'Ou are lhe intended recipient. If you are not the intended recipient, please call1 firm namel at Iphone numberl and ask ror ltenderl. In addition pleMe return this ,,-mail using a reply command and then ddett all copies, Tll,lnk you.

While somewhat tenJ{thy, Ihis disclaimer ClIn be ellSily Inserted by u~lng a macro command or cuttlng/pastlrlg in ~ Window~@ environment.

Accordingly, given the relatively slTIiIlI amount of authQrity on the use of e-mail, one should use prudent judgment in ~etermining what steps to lake to ensure" reasortlble expectalion of confidentiality. Obviously. the more sensitive lind valuable the information, the greater the measures Ihat should be taken. including encr')'pting the e-rnail or using all OIItCrnOitive medium or communication that offe rs more secure communication,

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Firm Websites

Why H• ..,e • L.w Firm Webslt. on the World Wid. Web?

Aweb5ite on the Web allows altorntys arId law nrms to pUbli5h informill ion in a m.lnner that is superior to traditional means of advertising. including Yellow Pagcs@andprintadvertise· ments. Websitn are interactive. searchable, relatively inexpensivl', instantly attessible, and can be updated easily. Law firms might use Yo'ebsites to list a description of the firm's history or biographical sketches of its members, or to discuss

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the law firm's practice areas. Also, a website may include the info rmation found in most Yellow Pagesi!l advertisements. such as phone numbers and addresses, as weI! as possibly including e-mail links to each of the firm's attorneys. Because of the international reach of the Web, websites have proven valuable to attorneys servicing internalional clients. To this ex t~nl. some websites offer a language oplion so that the vic:wer eiln select the I lIng~mge of thei r chOiet (or browsing the website. However, while a website offe r~ much. the myriad of ethical and legal concerns surrounding lhe Web have prevented mal\Y attorneys III\d law firms (rom creating web路 ~ites. The fo llowing discussion addresses many of these concern!. including advertiSing, altorney-client relationships, the unfluthori1.ed pmctice of law, and disclaimers. First, however. a brief technological overview will be helpful.

Technologlc.1 B.ckground The Internet consists of more thiln 15,000 individual computer netW()rks which connect over 2.2 million computers and more than 23.5 million u~u around the world." Current tnmds indicate thaI the number of u$ers on the Internet doubles every 12 10 15 months." The Web, a subset of the Internet, comprises a series of documents stored on different computers throughout the ll\ternel. These documents, called ''web pages", are all formatted according to a standard language referred to as Hypertext Markup Language ("HTML"). HTML essentially lays out the format fDr the text, images, sound or video comprising an HTr-IL document in a manner thal a user's browser program can interpret for presentation to the user. ACollection of Web pages th~t are related is often referred to as 11 website.

F.very Web page has 11 unique add res~ referred to a~ a Uniform Re~ou rce LQCator (URL). 13y typing the Untoof a Web page into a browser program, the browser program automatically retrieves that Web page (rom lhe location where it is stored on the Web. In addition, a Web page can also contain one or more references. in terms of other URLs, to other Web pages. The.e references are known as hyperlinks (or "links") and are typically flagged by the browser in a particula r manner (for example, any lext associated with a h ~perlink may be in a different color or underlined). If the user selects the hyperlink, then the rcfnenced Web page is retrieved and replaces the currently displayed Web page. I lencil. each Web page can be cross-linked to many other pages, which, if pictured graphically. shows the structure giving the Web its name.

Ethic.' Concerna AdlHJrtl$lllg The Alabama State Bar Center for Professional Responsibility has stated that web~i tH arc governed by

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the same set of rules and standards as all other advertisements, as Web ])3ges are a means of commercial speech.Thus, Web pages musl not be false or misleading as defined

by Rule 7. I of the Alabama nules of Professional Conduct!' and more generillly, as d~fined by the United SII1\e$ Supreme Court in /)of(lS u. Stofe Bar .- Further. the application of Rule 7.2 implicOit es many administ rative detai ls. rOT cKamplc. each Web page mU$t h ~ve the lar\guage: "No repruentlll!on is made that the quality of the legal services to be performed is greater than the quality of legal services petrormed by other lawyers."" Rule 7.2 also requires thflt a COpy of the Web page be forwarded to the Office of the General Coun.el of the Alabama State Bar within three days of its posting, and that a copy of the Web pages be kept for ~tleast six years after they were last on the Web.:!! Ethics nules 7.4 regarding speciali?'alion, 7.5 reAarding firm names, ~ n d 7.6 regarding certifications will also apply to website content. and therefore should be taken into account.

It is unlikely that Rule 7.3, regarding direct solicitation of prospective cllentJ, will be applied to attorney websites. The vitwing of website~ is a voluntary I1ction taken by prospective clients: unlike direct mail or telephone calls, there is no directed communication by altorneys posting websites.

Indeed, both the Vermont Bar Association" and the South Carolina Bar Ethics Advisory Committee'l> recently likened websites to the static advertisements fO\lI1d in the Yellow I'ages庐 and concluded both afe subject to the existing ethical standards with respect 10 advertising. However. as the South Carolina opinion aptly notes. (utur!': chllnges in technology may allow law fi rms to target specilll viewer profiles.禄 This new technology, for example, "Push" technology or directed banner advertising," may be closer to solicitation than advertising, and thus subject to regulation <ISsuch.

Therefore. websites that are "published" Qn the W~b by Aillbllma firms and attorneys arc generally subject to the same restriClions and regul~ t ion~ as other fo rms of attorney advertising in Alabflma. One important caveat (ollows, however. ill that it is unclear If and how the material availa~le on the Web. which by the nature of the Web is accessible in jurisdic路 tions outside of Alabama. will be subject to the regulations of these other jurisdictions.:!!

establlshillg all Attorncy-Cllcnt Relationship ~:ven though an attorney is connected 10 the Web. the attorney may never ]N!uonally interact with tht visitor browsing the attorney's website. or exchange e-m~i1 with the visi tor. Nonetheles~. it Is importllllt thfll the f1 ttorney be wal')' of

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establishing an attorney.cl ient relationship, lind thus, invok· Ing the liability of polentiaI mnlprllctice 5uib as well as • the duties of confiden tiality, Unauthorized loyalty, zell l o u~ represcntaPractice of tion and competence law required by the Alabllmll Rules of Profenional Conduct.Attorneys should take the same safeguards in electronic correspondcnce as in normal correspondence to avoid this uni ntentional establishment of an attorney·client rel~ t ionship, including: I) laking steps to specifi cally clarify the nature of the relationship: 2) Cautioning the computer user not to rely on the posted advice of the attorney: ,md 3) responding generally, rather than specHic.llly, to the fllct p.1Uern posed in an inquiry. One catch·all method of ef(ecllng Ihese $., feguards. a general disclaimer on the attorney's website. Is discuued fu rther below.

11

UmlUlhorl:ed PrUCtiC4 of W I»

In the hypothetical allhe beginning of lhis article, iflhe "ttorney responds to the e·mall sent by the potential client, Ihe attorney may have in/ld',lfrtently vioillted the prohibitions a~"in S I ~mauthori2ed practice of law if Ihe potentilll clicnt wa~ locOited in n slate where the attorney was not licensed to practice law. At;.bama I ~ulc 5.5 provides that II lawyer ~ hllil nOI either practice law in II jurisdiction where that lawyer Is nol authorized to practice or "$Sist imy person who is not authorized to practice law in "ny activity Ihat constitutes the unauthorized practice of l"w.JI Thus, in on-line communica· tions, attorneys should lake special cart to not give legal advice to persons in jurisdictions fore iAn to the attorney's authorized jurisdiction of practice. Practically. this means that attorneys should ensure lhat thei r website is tailored 50 as nollo offer legal opinions or advice. Further, before ,u15wering IIny e-lTIi,ils with personalized legal advice, the Ilttorney should m~ke sufficient efforts to confirm Ihal Ihe altorney is qualified to give le.!lal advice. both with respect 10 the subject maUer and the jurisdiction as required by the client.

Suggtsled ' 'rUCt/CIS

One way to help ensure that attorneys do not become entan.!lled in the ntwly-spun web of ethics hnilfds presenled in modern communications methods, is the judicious use of disclaimers, While each attorney is individually reSPOnsible for addressing these ethical concerns. Ihe followi ng is one eXOImple of" disclaimer aimed at addressing the luues: This website is purely ~ public resource of genera l information which 15 intended, but not promised or guaranteed, to be correct. complett. and up-Io-dale. This website is not a

rource of advertising, solicitation. or legal advice, and Ihus the malerinl provided on this website is not intended to ere"te, ,md Ihe receipl of it does nol constitute, /In attorney· cl ient relationship. Inlernet subscriber and on·line reader should not rely on information provided herein, lind should IIlways seek the advice of competent counsel in the reader's state. The owner of lhis website is an attorney licensed onlv In lhe Stllte of Alabama. ~·u rthermore. Ihe owner of this website does not wish to reprtSl:rt anyone desiring representation based upon vitwinll: this website in a state where this wtbsite flliis to comply with all laws and ethical rules of lhat state. 00 not send the owner of this web5ite or anyone listed herein information unlll you speak wilh one of Oll r lawyers.

The. specification of "generlll information" will hopefully help to allQid ethical difficulties rellJlrding both the unauthorized practice of law and the creation of an attorney-client relationship. Since legltl artic:le$ and newsletters can become outdated fairly quickly. the discl"imer lhat

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the information is "not promised or gua rOl1teed to be correct, complete, and up.to.date" helps in preventing detrimental rclinnce and also will help in avoiding allegations that the information provided was "false or misleading:'" By disclos· ing the names of the 5tilles in wh ich the attorney is registered to practice, the <It\l)rr'l Cy ~tren g th ~ n s th ~ argument thilt the attorney is not allempling 10 practice law in other jurisdictions, This argwllent is further bolstered by the statement that the allornfy does not wish to rcprcscr'l\ llr'l yOr'l(! desi ring representation based Ulx>n viewing the website in a state . where the website faib to comply with alllllws and ethical rules of that slale. ~'inally, the request that no informotion be senl unlilthe visitor talks with a lawyer may prevent a dis(fualifyinll disclos(lre from a potentially adverse party, In other words, a party with an adverse position to one of your current clients which is seeking representation may send you an e-mail with material i1dmissions. Those admissions may then be used in a disqualification motion to prevent you from representins your current client in an action adverse to the inquiring party. Thi~ will also allow II COI\fIicl check to be perform ed before con{identiallnformation is disclosed and the attorney-client rellllionship is created.

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Set IHlnoII Siale EI.r Ann. , AdYiIory Opinion ()11 PrcleHlolIIII CorIducI No. llII' IG(MIIy III, 1991) .

II . Ault 1.6(1) Of Itle 11111101, A~kIt Of Pro!fllion.1 Conduc:I prllYldn. ~mHlr 10 rhflcorllspondjng AJabama rult, I~'I '. l.owyor .1IaiI1'IOI. d.lrlng Of .!I~' t~,mI, 1III1k>n or IJIi pro'u, 1orIa1 '~at~hfI:J Wilh!hl CIiIfII . uN CI ,tveII a conll· 0a1Q Of _er 01l1li ellent know~ 10 IhtlltWYt' ~nl". lilt elitnl 00II1Ifl1l IMII dltclOlure,' 111iMI. RukIt ot Prot.1fk><W Cont.Iucr. A.t. 1.0l.1 (1"').

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AMn.• AlMIOfy Elhlca OpInion No, 97·5 (1997j.

14 , Soolh 0.'011l1li Dar Elhlca MoIIIoI y Comm " AIMIIlry Optlion No. 9HIII (Juna, I"'): 1l000<<I, New 'fOI~ Slal'~' "'tn " CPLR ~SH (JarlUlry 24, 1997).

15. WIHl.om ~,oj~ . "Commul\lclliing w lm Of AbOut CIItnlt 011f1t Inllr ....l · L*I. EII'Iic~. I UabU ~y COIICfIfn; r~ ~S NoM. No. 3 (.t.utUIM 1995).

16. SoN 18 U,S.C. ft 2$IOj I). 2$12(A) PM~, 1'. Set. I .g , M(lII\IChUIltla fillies Op. ~ ~·5 (1994) ; icw. EItrk:a Op. No. 110· 44 (199 1 ~; ~ H~mpoIIIt. Ethic, ()p. No. 1" 1'92te ( ! m~.

16. South Cilrotln, 19, .... rmot"l

a.. EllIIes AdvIIory Comm " ' !IP'81'1011 I ~,

a., AIIII" ' 1IPf' noll 13.

20 Soulh C.roUIIII Bar EIIIicII AdvIIot, Comm" twptI noll t4. pubKo li.lyiptlval,...,. Ct)'lllogr~phf. _ ., hllp*"'-.pgp.com.

21, FOf morl InIOt'mltlorl 011

PrlYllcV"

Conclusion The new means of communication arising via the Internet provide a new realm fo r attorneys to help disseminate Infor· million abo(lt themselves, and law in general. Thankfully.

COurl5 ilnd ethics boards hilve seen (it to embrace this new technology for the fulure promise it holds fo r the pr<lctice of law. Hopc{ully they will CQntinue to do so ilS new hurdles arise in concert with future technological advances. Unt il then, this gcner'&tion of IIttorncys shou ld firm ly grasp the advances th .. t technology h 'l ~ fi llOwed "r'ld COntinue in the ethical path of the legal profession.

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22 ThfIIOWII Suprlmt COu'1 BoItd CI P,Ohr.tb\tII Elhic •• ncr Cont.Iucr r_ntty Indk:atlld Itlalll\e polword prOlactk>n prllYkled by WOld procelllng progrlme '~h .. Mlc!rOf011li WOtd or W()/(lP$rteclll le IvMlcltnl 10 eonlotm "'lIn 0I!/nk>rI No. l1li·1 (~nol. 5).

23. Sett. '.g , ADA Formel Ert-.b Op. 02·~ 11"2)

24 Andrew r<IU!<.lf. "OIl IfIt CIIIIII.· Tht\lm ..nel lW6; Inlflrntl World, DIIe. 1998. I I 45.

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FIO,te,Q? (Iwe).

27. AAlbiIIIIII Autes ot P rollB3lollllI Con4\N;I, Rul' 7.1 (I99tI) .

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(JaOOll'y 1995).

1. &to. I .g .. WIlliam F'I~. ·lnt .....1 ComlTlllnICIUiona · Ps,r II, A Llrge.

Perspective,' AUS ~"" . P_mi<>n JfJjJ,,",IIHI91) at 2. e. see ~r~lly "'US LIM. PN1WN1Iion.lo<Jmal• .III""a.y 1$93. al 6 ; ... LAS tOH P~nlloI! Jour",l, SelHlmbe' 1995. II 24 g. 5et 18US.C.A.f25 17"HO.(1997)

30. AJabaml Rull. 01 Pro!elalonll ConducI . Rult 1 .2(b) ( 199111.

31. SItr "",mool Ba. AlIIfI .. IIIpI'II norl 13.

32.

s.. Soulh e.,o1l"" a~, EttMce ~V Comm., '!IP'a no" I',

33. /d, 34. Sea Milk HlI1k1nl. ·Ambuw-.c. CnIN.. 011 IhilInl .. ner: R ~Ia!1on oj AI\()/tl9y Wtb P"I/H'- I J, ~ I.. , POI)l3. 22 (19911).

35. Sea NsrlOflallllwJoorntli, Nov S. 1995 I! AlB, 36, SM, ' .0 . AJIbII'I\II A~III 01 P,altslional ConOucr, Aula. 11 . 1.3. 1.4 (1ii6).

37. AJabaml Aul. . 01 Pro1alllonli Conc:tUQI. Ru'" U (1991l).

3a. AI.n.m.

Rul"

of PrO~IIIon.1 Conavet. RUlli 7.1 (1996).

L EGISLATIVE W RAP-UP

By Robert l.. fotcCurley, Jr.

T

he 1998 Regular Session of Ihe Legislature beg:tn lIlfluary 13, 1998. It must adjourn after meeting 30 legislative days but flO more

and roltiflcalion by the court or by court order upon proof of il milleriill chllnge of circumstances. t>loreover. the exis. tence of a legal separation does not bar than a I 05-ca lendnr day period. a PM!y from later ;nsliMlng an IIction The Institute hils t~'o bills lhat will be (or dissolution of a marriage. introduced: Section (1 )(d) contemplates that the terms relating to alimony or 1I11ropcrty Legal Separation settlement in the legal separlltion will not Itenerally be incorporllted into II This bill is designed to allow couples tlnill divorce decree absent agreement who are fa cing marital discord to have II by the parties. This 5tClion recognites viable alternative 10 immediately that in mllOy in~ t ilncu Ihe partie5 hope obtaining a divorce. II has been drarted to reconcile lind therefore have not 10 provide flexibility $0 thai it can be Mtempted to equitilbly divide their ulilb::ed by couples who hope (or a brief prollc rly during whlll Is hopcd will be period of legal ~ep;! ra ti on while lhey only a brief period of separation. altempt 10 r«oneile Or it can be used However, this section does provide the by couple$ who llnlicipole II long, pt!rnexibility of allOWing the couple to haps even permanent sep:aration bul do agree that if a reconcili3tion does not nol Wllnt to obtain II divorce for relioccur that the division or property and gious or other re:a:lOns. the alimony provision will be continued Under Section (1)(a) the courl shall in il final decree, enter a legal sep;lration if requested by Section (IHe) provides lhal "the best one or both of the parties provided that inlerest of the child"' standard shall appl), the ju risdictional rtquirements fo r a if the p.:!rties to the lelt."!1 sep.,ralion Illter di~ 50luti o n of il IllMriage have been llIe ror dissolution of thtir I1l4lrriage. mel. In so doing, the court must com.

Section ( 1)(0 provides th."lt jrboth par· ply with nule 32 relating to the manda. ties consent, propcrty acquired by each tor')' child SUPI)()rt guidelines. if the cou. party subsequent to Ule legal separation pie has children. wilt be deemed lhe sole party of the perSection {l)(bl reite rlll e~ that a decree son acquiring the prOtlCrty. Likewise, I( of legal stparation does not terminolle both parties consent. each spouse 1llII)' the mllrital status of the parties. Section waive aUrights of inheritance subse.

(I)(e) speCifies thilt the terms of a legal (IUenl to the legal sep'mtion, This sec. separillion can be modified or dissolved tion has been included to provide nexi. only by written consent by both parties bility to those Iwties who desire more economic certainty when a le(l."ll separa. tion is anticipated to extend (or a long RObeort L. l>eriod of time or when the parties prefer Mc Curle y, Jr. AcIoert l McCurIty to have tI~ I1l4ltters settled by consent Jf • lilt \:lillielOt' 01 prior to the entr')' of the Jeg.,r sCpllralion. !/Ie -'l10ImII La ..

Section (l)(gl provides that the cost for II15~h"'. ~,...

I..I'w.-My 01 ~ legal separation is the SlIme as i( a diuoHoI '&C~ved II~ of the marriage was requested, lution ~grtclua~ III'(J Sections 30·2·30 and ·31 relating to !.oN cIeQr_ II'Qft1 IIW diV(lree from bed and oo.1rd have been repealed.

-..

The act ha5 a delll)'fd effective date to January 1. 1999 to enable the bench and bilr to be informed or the new law,

Constitutional AmendmentCorporations The newly formed BU5iness Entities Committee has recommended that Ala. Const. sections 232, 233, 2J~ and 2:l7 relating to corporations be amended to authorize the Legislature to define activities that do or do not constitute the doing of busineu in Alabama by (or. eign corporat ions, to permit domestic corporlllions to engage In certllin busl. ness not upressJ)' authorited by ib charter, to remove certain restrictions on the issullnce of stock and bonds by domestic corporations, and to Ilermit domestic corporations 10 issue preferred stock as authorited by statule.

Institute Committees at Work; Rules oICrimilltil Procedure Ccmmill('(!, chflircd by Billy Burney 01 Moulton. Th is committee re\'iews sug.

gestions present ed to it to amend the rules lind commentary. /Jusiness Entitles CammiflLl(!. clllIinul byJim Prut!tl o/Cadslh..fI. This commit.

tee is reviewing all of the bu!ines.~ enti. t)' statutes. ie .. corporations. p.e.s and LLes, etc .. to see that comparable provi. sions in the statutes are consistent.

Such maUers IlS mergers, m in~ IIrld QualifiCiltion to do busine.u a~e under review.

Uniform Child C/lstodJj Jurisdictioll ({nd Enforcement Act Commfffee, chaired by Con/Oll fJailey 01Anniston.

This committee Is reviewinglhe Uniform Act propo5ed by the N"tional Conference of Commissioners on Uniform State Laws. Th is Act revises the Uniform Child Custody Jurisdiction Act

to make it consistent with ease law. [\ also enunciates a standard of continuo ing jurisdiction and clarifies modifica· tion jurisdiction. It further provides a remedial process to enforce interstate child cu~tody and visitation determinations.

Unifonn PrinciPal (lnd /IlCQIII(! Acl Commlttai/, chuired by UI()l1urd Wur(lwimur oflJimll'ngham. This com-

mittee is reviewing the Uniform Act which covers four areas of trust administration:

I. How income earned during probate of an tstilte i$ to be: distributed:

2. When income inlerest in a trust begins. what property is princIpal that rvtntually gou to the remain· der beneficiary: 3, When income inlercst ends, who gets the Income that has been received bul not distri buted: and 4, After an income iMeres\ begins and before it ends, how should ils receipl$ and disbursements be allocated to or bet\o.'(!en principalllnd income,

New Ac:ts The timited Partnuship Act ( 10-91)101) becomes effectivt October I, 1998.

Limited Liability Company Amendments became effective January I. 1998, ~'or more information concerning the instill/Ie or an)' of its pre'jects, contact Bob McCurley, director, Alubllma (..lW institute, P.O. Box 861425, Tuscaloosa, Alllb<lrllll 35486·0013: (ax (205) 3488411 or phone (205) 348·7411. Institute Ilome Page-www.law.uudulali •

Attorneys: Buy Extras for Your Staffl

are in!

1997

Members $25 each 1 TO 5 COPIES $20 each 6

OR MORE COPIES

Non-members-$60 each ORDERS MUST BE PRE-PAtD

Moll chock to. AlabatnOi Ba r Dire ctory· P.O. 80. 41 5 6 • Montgotne ry, AL 36101

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R ECENT DECISIONS IJlll)avid B. flyme!. Jr. ulld Wilbur C. Silbennml

Bankruptcy Decisions Mu st debtor ,..Hlrm to maInt ain car payment---Second

Circuit ••ya "Nol" (contradict.

In g the Eleventh)

1/1 re Brian K. 800drow. No. 96·5078, 1997 U.S. App_ LEX IS 23906 (2" Cir. SeptemDtr 12, 1997). Boodrow filed chapter 7. "Ie rCllmincd current on IJIlYmenls, as well as llUIinlaining thc required insurance. There Wil$ no compliance with 1521(2) which provides

Ihat within 30 days of filing the pelition, th ere must bt Illl elcctlOr) to sur·

render, redeem or reart'irm. This debtor, although filing II statement of intention, did not do IIny of the three, whereupon

the secured creditor. Capila1 Communications Perlera! Credit Union

pretin" the statute, hekllhal confining debtor to the three choices could interfere with p rovidin~ a fresh startthat to require reaffirmation would give the creditor:. veto on a "fresh slar\."

Capital countered by quoting the Eleventh Ci rcuit case of In re Tuylor which held that the additional option would give the debtor nol a fresh SINI, but a "head start." Nevtrlhelm. the Second Circuit, afi er disposing of the various arguments of Capital (as enun· ciated in the r"II/0r case) and discu.uing when there could be grounds for lifting the stay, held thaI. §52 1(2) "does not prevent a bankruptcy court from allow· ing a debtor who i$ current on loan obligations to retain the collateral and keep IllIIking payments under Ihe origi· nallOiln agreement. ~ II

("Capital") moved to 11ft the SL.1Y for

non-compliance with the §521(2)(A) requirements. j( grallled, thi5 would require one of the following: immediilte payment of lhe !)"lance, lhe return of the vehicle, or re.establishment of per· sonal ""bilily of the debtor. Capita! argued the Eleventh Circuit cue of III Nt nil/lor. 3 ~:3d .. tI516. that §521(2)(A) mandates the debtor to select one of the three mentioned alter· natives. The Second Circuit. in inter·

Wllb\.I, O. S llbe'rnIIn WfbIO ~rlW\0I II'1II 9irrT1fVwn hrm 01 ~. SIlet".,.

Woggor-. & CNdI,

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CO~I~IE NT: Even though this ca$e connicts wilh Ihe Eleventh Circuit, I have detailed it to show the reasoning, and further lhat there is a definite con· mct in the circui15 leading to a possible United StMes Supreme Court decision, The case contains a strong dissenllng opinion hoth on the muils and moot· ness, Both opinions codd be helpful ilS to legislative interpretations. moot ness and consideration ofHplhin language of a statute.

M

S.v.nth Circuit .nowa n.w velue .... C.pllon.. to Abaolute Prlvecy Rule In re203 N. f..i1Saffe f'tlrlllurship.

Nos, 96·2137. 96.2138. 1997 U.S, ApD. LEXIS 27008 (7'" Cir, September 29, 1997). In an extremely lengthy opinion of iI panel 2· 1 dedsion. the Seventh Circuil held that contribution of new c:lJ)itnl. with the p"r!ners ret,llning their interest, WOuld nQt dcfeat the absolute priority rule, thus allowinll for a con·

fi rmed plan. The plan, In addition to re(luiring frcsh capital. provided for waiver of unsecured claims by insiders. payment of other unsecured claims in full ..... ithout interest, payment of prior!. ty claims. and the $55.8 million KCured claim of the bank to be paid partly in cash with the b,llance in seven to ten years with interest. The bank h"d elect· ed to bifurcate its claim into a secured claim for the value of the property. and unsecured for the deficiency. The total amo ..mt owed to Bank America .....as more than $93 million. Should the property be sold or refinanced, after the secured claim was paid, the balance ....'{luld be paid on the unsecured claim of $38,5 million, The unhappY bank appealed confirm.1tion of the plan. con· tending that the absolute priority rule was violated bee,luse under § 1129{b)(2)(B)(ill. every impaired senior credit must be paid in full before a junior can receive, 011 (lCCOIml of its previous interest. any property. The barlk contended Ihat this provi5ion of the Code eliminated any new value exception. but even ir it did no\' (he amount o( capilal to be injected was unsubstantial. The court rejected this argument, and (urther. "Ithough it stat· ed that it was not conclusive Ihalthe

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plan would succ~~d. ruled that the plan was feasibl~. and th~rtfore could affirm the confirmati[)n.

COMMENT: This mbtter is stit! alive and kicking. The lender, Bank of America illinoIs, has requested a rehe,n· ing, (III ballC. before the entire circuit, and the case may be headed to the U.S. S(Jpreme CO(Jrt. The present Opinion. although lengthy, contilining30 pilgc5 of the majority and 15 of the minority, bear~ reading becau~e o( Ihe different issues discussed, to wit: good faith; cramdown; chapter 11 confirmation requisites; mootness after plan confi r· mation and implementation: feasibility: new value corQllilry \\Ii\h relation to the ilbsolute priority rule: legislative interpretation ilnd history with re!l:ard 10 amendment of prior bimkr(Jptcy provi· sions: impaired classes; and discrimina· tion in twu classes of unseC(Jred cl,Jim$.

In addition, th ~re is a strong di ~sen t which also discusses these Issues. The majority nl1d minority opinlOJ)~ C.1I1 be a primer (or chapter 11 cases.

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J . FtrN~tc r 1)~ lI u)'., III CI.U

You eSlilbli~h gouls for creatin" wc:uhh. We help yUII Illcet yOUJ GOlds. whih: prolectinG your f:unily and CSHlle through insurance IUld fi lHulcinl products,

T he Company't&u Keep.1().IIIIl·rfllI!SS CtlJlU Plol'tl

Suite 500 f/irmlllghClIII, AI. J5242

995· 1122

.... JANuAnV

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Eleventh Circuit rul •• th.t po.t_petltlon tax•••• a••••d on pre.petltlon Income do not con.tltute .n .dmlnlatr.tlv. expen •• 111 r(! Ilillsboff)uf/'h Holdings C017J., 116 f.3d 1391 (II'" Cir. 1991).

Hillsborough and its 32 subsidiaries (debtors) were on a May 31" fiscal year, Debtors filed chapter li on December 27,1989. Debtors filed post-petition income tilX rellirns only (or income from J)ecember 27, 1989, leayin~ unpaid the income earned between June t and December 27,1989. The IRS claimed that the I;l~ on in(ome for that time wllS nl11tdJ'nirMtrlllive txpcn~e­ due to the t1tX being assessed post.pel!. lion. The bankruptcy court and the district court upheld the debtors' objection 8nd determined lImt the tax was not incurred by the estate, The court of appeals first ruled that the judgment of the bankruplcy court W1\S n final appeal · able order (mder 28 U.S.C. § 158(d). thus suP[}Orting prior Eleyenth Circuit case law. (See III re Chartcr Co., 778 F:2d 617. 621). The cou rt then referred to Title 11. §507(a)O) .md (7). holdin~ that the basic Que~tloll WI1S whether the un]laid taxes ""'ere not assessed before, but assess.,ble after the beginning of the ClISe," It took issue with the govern· ment's llrgument. 3nd agreed with the Eighth and Ninth circuits that the posi· tion o( the United Stilles would contril· dict the plain meaning of the statut e.

The government had ,Jrg(Jed thill Section 507(a)(7) (lacs not allow for bifur,ating a single tax and giving dif(erent treatment to the bifurcated por· tions. It contended that to do so wou ld allow a debtor to subvert the tax code.

The ~:I eventh Circuit disagreed, saying that to divide the tax into two portions would hiwe no e((ect on the tax liability, the rate, or Ihe len~th of the tax yeilr, but that the paymerlt would be gOY' erned by bankrupt(.)' law's principles and priorities, Thu:. it affirmed the d~cision of the lower COllrts in denying adm ini~t rative priority to the tax all rib· utable to pre-petition income.

COl\1J\!ENT: In a footnote, the courl slated that it was a mystery as to how the debtors com puled the tax liability. ,'his may be Ihe largest problem in car· rying oul the mandilte of this Cilse .

Ab.olut. I.te.t (October 24, 19971 from Eleventh Circuit on attorney t••• CraN 11. L(J(khl!(ul illtr{)lIduticul Sys.

Co" No. 95·8459.1997 U.S.App.LEXIS

29 124. (11 '" Cir. October 24, 1997).

Lockheed \\'a~ found guilty of destroying documents, The district court imposed sanctions including the assessment of attorney fees. Lockheed claimed exces· siyeness (or the following rellsons: (1) excess of market rate. (2) le~a! seJViccs unrelated \0 document destruction, and (3) excessive. dupliclllive hnd unnecu· s.,1)' billing5. On appeal, the Eleventh Circuit first referred to/lonmm 11. l1omitJ.Q Authority of N(JI!tgomefY, 836

F.2d 1292 (II '" Cir.. (986) for the stan· dards relative to hourly ratcsllnd time, defining II rellsonable hourly rilte as "the prevlliling market rate in the rele· v,mt legal community (or similar ser· vices by lawyers of reasonably comparable ski lls, eKPerience lind reputation."

NQrm(111 alsO held lhal the trial courl cou ld lise its discretion to exclude "cxces~ive Or unllCCHitary work on giyen tasks." The appellate court then held that the diMrict court properly relied 011 nffidavits and news reports dmwn (rom the bankruptcy cou rt for the Northern District of Georgia, as they represented "a broad cross section of dif(erenlsi~e firms and different ley· els of llltorne)' experience" as wellllS prilctice other than in bankruptcy.

Further, the courl noled that Ihe district courl found the appelleu' rCC(lrd~ reliable with no objectiorl.~ by the lIppel. !ll1\t olher Ulan conciuSOl'}' statemeJl!5, The court concluded with these S<llient words: "as the district court must be relisorlllbly precise in excluding hours thought to be unreasonable or unneces· sary, so should the objections and proof from fee opponents." It then a(flrmed the district court.

CO M ~m NT: This was not a bankrupt· cy ca5e, but as the district court used btlnkrvptcy fce bl10wtulCU 11$ a guide, [ thought it proller to reyiew. [t is note· worthy that records of b<Jnkruptcy cases nre approved as II guide for other types of litigation.

•

OPINIONS OF THE G ENERAL COUNSEL fly 1. Alltholl,lI McLain, gOIUJrtJ{ r:ollll.~l!1

QUESTION:

Under Whll! tircummnces can an attorney pay :a witness who offers testimonyat trial or by del"Osition for an attorney's clienO ANSWER:

Payment of Expert and Lay Witnesses

J. Anthonv McLain

Witne.ues who orrer (ulimany at trial fall generally into two categories, expert witnesses and lay or faet witnesses. An attorney may pay an e~perl witrlC$~ ~ reasonable and customary fee (or preparing and

providi~

expert testimo-

ny, but the expert's fee may not be contingent on Ihe outcome of the proceeding. An attorney mOly not pay a ract or Jay witness anything of value in exchange for the testimony of the wit· ness. but may reimburse the lay witne" for actual expenses, including toss of time or income, DISCUSSION:

The prohibitions against paying fact witnesses and against paying experts n contingency fce are fOWld in Rule 3.4(b) of the Hulu of Professional Conduct of the Alabama Stille Bar, which provides that a laW)'er shall not ·offer an induce· ment to a witness thai Is prohibited by law." Iloweyer, lhe Comment to this rute recognizes that the prohibition does not preclude payment of a fact wit· ness's lell:itimate expemes 3S long 35 such pa)'mcnt docs not constitute an inducement to testify in a certain way.

This Comment is coll$istent with DR 7· 109 olthe old r.lodel Code of Jlroressional l~esponsibi1ily which specifi. cally authorized a laW)'er to pay "expens· es reasonably incurred boy 3 witness in 3t1endinll: or testifying" and "reasonable compcn"'1tion to a witness (or his loss of lime in allcnding or testifying,"

Furthermore, payment to a fact wit· ness for his actual c)(penses and lou of time would constitute "expenses of liti· gation" within the me3ning of Rule 1.8(e). Subparagraph (I) of that section authori:..es an attorney to "advance court costs and expemes of litilPtion, the repayment or which may be contino gent on the outcome of the matter."

The situation may arise when an eJCpcrt witne5s would also IH in a posl· tion to provide (actulll testimony in addition to hi$ paid expert testimony.

Under thCSf circumstances, the aUor· ney would not be clhicall), precluded from paying the witness, in his role as upert. his usual and customary (ee.

HO"''ever, caution should be exercised thaI the attorne)' does not pay the eKpert more than his usulil and C(lstomary fee or pay him fo r more time than he actuall), expended in preP'lring and providing his expert testimony. since an)' excess or unusual fee could be con· strued a~ pa)'menl for his te~timony as a (act witneu.

In surnnlllry. it is the opinion of the Disciplinary Commission of the Alabllma State Bar that an attorney rna)' pay a fact witness for actual expenses and actual 1055 of Income or wages as long as such payment is not made as an inducement to the witness to testIfy in a certain W,IY, An e~perl witness may be paid his reason<lble, usual and custom· ary fee for preparinlland prO'Jiding expert testimony, provided such fte is not contingent. This opiniOIl is consis· tent with previous opinions of the Disciplinar')' Commission on similar or related issues in I{os 81 ·549, 82·699 and 88-42, • (nO·97·02(

Q

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-- - --

DISCIPLINARY NOTICE

DI •• bUlly • Jaspe r i1Uorney Larry

Suspensions I~dward

SmIth

wa~

iran§fcrrcd to dis·

ability inactive slatu5. effective October I, 1997. Smith'~ transfer W<lS Ordcr~d by \h"- Supreme Court of Alab~mli pur·

suant to a prior orde r of the Disciplinary Board of the Alab<lm<l State Bar. [Rule 27; Pel. No. 97-041

Dlsb.,red • Hy order of the $(lp TCmC Court of Alabama, Orange Beach attorney 01.mU8 Sigler "Tony" Burke. Jr" was disbarred from the

~-"

p r<l~tice

of 1111'.' in the Stille of Alllbllr'llll, effective

October 29, 1991. Burke h:l(J executed a consent to disbar· ment based upon his felony convictions on two counts of

first-degree theft and one count of second.degree theft in Baldwin County Circuit Court. IRuie 23(a) Pet. No. 97·03J Surrender 0' License

• Fairfi(!ld IIltc)rn(!y Volanlla Ne",,=U·John!on surrendered her license to pr~ctlce law in the Stnte o( Alabama by Order of the Supreme Court of Alabama effective October I I. \997.

[ASO No. 97.346(AII CLASS ACTION ADMINISTRATION

Our S • • vl a •• In " lud .

Settlement Notice Administration Call Center Assistance Address Tracking SoNlce Class Member Data Base Maintenance Claims Fonn Handling

SAttlemenl Benofit Disbursement 1.888.414.1470 Toll Free

• Effectille September 29, 1997, Dothan attorney Charlu Druce Adams has been suspended (rom the practice of law in the Slate o( Alabama for noncompliance with the t-landatory COllt inuill1l: Legal Educatioil n \J I ~s Q( the Alabama Stilte Bar, [CI..E 97-011 • Effectille September 29, 1997, Dothan attorney Edward Michael Young hilS been 5u5pended from the practice of law in the State of Alilbama for noncompliance with the Mandatory Continuing Lellal f;ducation r~ ulu of Lhe Alabama Slale Bar, [CLf; 97-15) • Effective Scptember 29. J997. Birminghiun attorney James Newt Brown, '" has been suspended from the practice of law in the SLate of Aillbama for noncompliance with the t-1andatory Continuing 1..egal l~d\lca tion nules of lhe Alabama State Bar, [CLE 97. 16) • Effec tive October 17, 1997, Alabaster attorney Iflthard Wayne Milel], Jr. has been suspended (rom the practice of law in the State o( Alabama (or noncompliance with the t>landlltory Contlnuing Leg.l1 Education Rules of the Alabama Siale Bar, ICJ..E 97-111 • Sylllcllugllllttorney Jllmu Walthall r>1ims, Jr, was interimly suspended from the practice of law by order [)f the Discil}linary Commission of the Alabama Stale !lilr effective September 26. 1997, Mims was suspended as a result of his having practlced law fo r approKimately (jlle years wilhout having obtained an annuallicen$f;: or having met the continuing, leltat education requirements of the Alabama State Oar, />lims al5Q held himself out to be /I Certified Public Accountllnt when he Wll~ not licensed as such by the Alabamll Bo.1rd of Public Accountancy, IHule 20(al. Pet. No. 97- 121 • t-tonlgomery attorney Keith AUlibom hM betn ~ uspended from the practice of law fo r 11 period of 9 I days by order of the Alabama Supreme Court to become effectillc November t. 1997. Ausborn hlld previously entered a plea of guilty to hllvinll violated Ule Hules of Professional Conduct of the Alabama State Dar. At the time Ausburn entered his guilty plell he had 14 active disciplinary complaints pending against him. most of which inlloilled his failure to provide adequate legal services after having been employed and paid by the client. After scrvinilihe 91-day suspension Ausborn will have 10 apply fo r rein5tat~ment of hl~ liCense. Ausborn's applkation for reinstatement wi!! be considered by the D i~dptin"ry Boord of the Aillbama State Bar in a formal hel!rinQ. [ASB No~, 95-150(Al, 95·159(Al. 95,193(A). 96· 293(A), 96-316(Al. and 97 ·076(A)1

Public Reprimand.

• fotobile attorney Slndl70 Kay Meadow, received a public reprimand without general publication on September 19, 1997 for fai ling to hold proptrty of It client separate from her own proptrty in violation of Rule 1.15 of the Rules of Professional Conduct, fo1eadows Wa5 hired to represent an individual in a divorce prO(!eeding, Pursuant to the terms of the divorce decree foleadows' client was to pay his fo rmer wife monthly alimony, To facilitate thislhe client paid t>leadows a monthly installment which folendow5 was to deposit into her trust m;counl and in turn Issue a check on said trust account to the fo rmcr wife's allorney to :Nltisfy the alimony obligation. IiOWi:Vcr, upon receipt of one such monthly insmllment from thc client Meadows deposited the check to her regular busine" account and treated it as PlIrtial payment of the client's bill for legal services. When foleadows discovered her mistake she tendered to the client a refund check drawn on her busineu account. However, in the mean t im~, the IRS had executed on her busineu account thereby causing lh~ ch ~ck she Imtl issuetlto her client to be dishonored because of insufficient funds.

Meadows WIlS only able to replace $ I,500 of the $2,500 paid to her by the client, with the client having to make up the difference to satisfy his alimony obli~tion.1ASB No. 95.

325(AII

• Cullman attorney ~tl chae l Allen SlewlI't. St. received a public reprimand without general publication on September 19, 1997 for having violated the Rules of Professional Conduct of the Alabama State Bar. flecords of the Cullmlm County Sherifrs Department disclosed thaI Stewart had been arrested on 20 separate occasions since February 1993. The charges inclutled criminal trespass, criminal mischief, assau lt. harassment, lheft of properly, Interfe rence with custody, burgllll)'. rncnating, iUld harassing communications.

All of the criminal charges were brought against Stewart by his ex-wife or other members of her family and resulted from altcrcal ion~ involving domestic relations and child custody disputes between Stewarl and his former wife, In

March 1996, Stewart was given a public reprimand for havin" violated the Rules of "rofWional Conduct. When the reprimand appeared in the local newspaper, Stewart responded by iuuing a statement to the media in which he claimed the arrest record relied upon by the Oisclplinary Commission in reprimanding him was false and was not his arrest record but rather was that of "an African American man in Ohio with the same name." lASI~ No. 96·238(M) • Foley attorney "1"\1 810 11 Lee IlIcks received a public repri. mllnd without general publication on September 19. 1997 for havIng violated flule 1.2(d) of the I~ule$ of Professional Conduct of the Alalxuna Stllte Ilar which prohibits an a\torney from aSSisting a client in conduct that the attorney should ha\'e known was criminal or fraudulent. Hicks was retained by an individual in connection with a pouible bankruptcy prO(!eeding. At the time of the employment the client had in his pomnion II check made payable to his tmployer in tht amount of $4,486. Hicks sliggestetl to lhe client that he endorse the check which the client did with Hicks taking pO~$es~ion of the check ~nd endorsing it fo r deposit only to his tru51account. l'licks deposited 501id check to his trusl account :lnd thereafter deducted from this amount his .. norney fet in the bankruptcy case and an additional $600 for "negotiation with the Internal Revenue Service." Hicks lhen wrote his client a check for the balance of lhe money remaining in the tnlst account. IASI1 No. 96-258(A)) • Foley attorney !'"reston I..ee Illcks receivtd a public reprimand without general publicatiOf\ em Stptember 19, 1997 for hav· ing violated Ilule 3.10 of the Rules of Profe~~ion.11 Contluct of the Alabama State Bar which prohibits an altorne~' from threatening criminal prosecution solely to obtain an IldVlu\tage in ~ clvilmlltter. I'licks was retained by lin Intlivldual to r~prcsenl her in a claim for damages done to a mooile home by the tenants to whom the client had rented the mobile home. Thereafter 1·licks wrote a leiter to the tel\llnts wherein he threatened them with criminal prosecution unless they paid civil damages to l'licks' clienl.1ASil No. 96-257{A)1

• Pelham attomcy William .~d wanl Swatek received 8 public reprimand 'A;thout general publication bilsed upon his plea o( guilty to violating Rules 1.3 and 1.4. Alabama l~ule5 of Professional Conduct. Swatek liIed suit on behalf of a client namina the wrong party defendant. 111ereafter, Swatek fa iled to timely amend the complaint to correclly name the property P.lrty defendant resulting in summary Judgment granted in favo r of the named defendants against his client tlnd h i~ client 's cl"lms "gainslthe proper p"rty defendant barred by the applicable stiltule of limitations. The resl)On· denl llttorney agreed 10 milke restitution to his client. IASB No. 95- 1581 • On September 19, 1997, Montgomery lawyer John Thomas 110m received a public reprimand without general publication for violating RlIle 7.3 of Ihe Hules of Professional Conduct. I-lorn sent a direcl lTIiIiI advertisement to prospec· tive clients in Dolhan. Alabama. These letters were sent in envelopes which contained the term "Advertisement" 85 required by the rule. There was :llso extraneous I"nguage on the cnvelolle which the Disciplinary Commission concl uded was calculated to undermine the objeclive purpose of Ihi5 rule's requirements. Horn accepted the Disciplinary Commission's determination and did not demand formal charaes. IASB No. 97.85(A)I

• Jackson attorr'ley La~ WlIiyne Keel received a public reprimand without general publication on October 24, 1997.

Keel had been appointed to represent lwo crminal defen· danh in separate appeals before the Alabama COllrt of Criminal Appeals. Keel failed to timely fil e briefs in both casts. The CMeS were relTlilnded to the trial court for appointment of new counsel and the matter was referred to the Discipli nary Commission of the Alabama State Oar. The matter Wa5 investil:laled by the Office of Ceneral COllI\sel of lhe Alabama State Bar. DurinJt the Investigation. Keel fai led to respond \0 nllmerOlL$ re(I Ue~t$ for information from the O{fice of Ceneral CouMel. Keel was eventllally reinstated as appellate counsel by the Alabama Court of Criminal Appeals and allowed to file out-of-time briefs in both caStS. Keel also evtntWllJy filed a response pursuant to the Office of Ceneral COllnsel's repeated requesLs for infOlmation.

Ilowever, the Disciplinary Commission determ!rled IhM Keel'$ conduct before the Alabama Court of Criminal Appeals and during the invesligation conducted by the Office of Ceneral Counsel of the Alab.'ma Stnte I3llr evi· denced a disrcgilrd of COllr! rules and the disciplinary process :md viol:lted nules 8.1(b) and 8.4(a), (d) and (g).

Alabama nules of Professional Conduct.IASIl Nos. 97I76(A) and 97· 192(A)I •

Delinquent Notice

Licensing/Special Membership Dues 1997-98 All Alabama Attorneys : The duallllvoice for licenses or special memberships WM mailed in mid-September and was to be paid between October I and October 31. It' YOU HAVE NOT I' URCIIASEO AN OCCUllATIONAl L I CENS I~ OR PAID $1'ECIAl, MEMBE RSUIP DUES, YOUARt: NOW DELINQUENTI In Active Private Practice: Any allorr'ley who engages in the "clive priVate practice of law in Alabamll i~ re(]uired to purchased an occupational license. The practice of law i$ defined in Section 34.3.6, Cod/1 01 AfltiXIIIIlI, 1975, 115 IIl'I'Icnded. (Act N92-600 Wl!5 passed by lhe /\ Inbnma Legl~IMute lind amended Settion 40-12-49. COli;! of Alabu"w , 1975, ef(ccti\'e October I , 1992.)

Occu pa tlo n l ll.lccn ~e: $287.50 (Ind udu automatic 15 Ptreent late l)Cnally) Not in Act ive I)rlvate Practice: An attorney not engaged in the active private practice of l.lw n Alab.uThl may pay the special membership fee to be a member in aood standing. Judges. attorneys general. United States attorneys, district attorneys. etc.. 'A'ho are exempt from licensing by virtut of a position held, qu;,lify for spt<:iaJ r"\lcmbtrship. (Sections 34·3· 17 & 18. Code ofAlaba'ffll, 1975, as amended) Special Membm hlp Duet: $125 (penalty nol lloppliClible) Direct any question" to: Diane Weldon, lilc!lI/b(!r.~ 'JJi) sl!rI)ic(!~· din'C/or, lit 1·800·:154·6154 (in.slale WATS), (,1.14) 26.9-1515. or IN/Wi! II/s@''ltlabnr.org /MMEDlA7"f.'/J'/

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CLASSIFIED NOTICES

Rales: Mambars: Two free listing s of 50 words or less per bar member per calendar year EXCEPT tor "position wanted" or ' posilion offered" Ilslln95- $35 per inserllon of 50 wOfd s or less, $50 words or less .. $50 par additional word : Nonmembers: $35 per Insertion of 50 words or less, $.50 per additional word. Classified copy and payment must be received according to the following publishing schedule: January '98Issue-deadllne November IS, 1997; March '98 Issue-deadllne Janl.lary I S, 1998. No deadline extensions will be made.

Send classified copy and payment. payable to The Alabama Lawyer. 10: Alabama Lawyer Classlfl eds, clo Rita Gray, P.O. BOil 4156, Montgomery, Alabama 361 01 .

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LAW OFFICE : Spil-ce for leasa. 2230 Third Avenue. North. Birmingham.

the most comprohensivo sourca 01 nationwide an(llnlernalional job open· Ings rQC(lIWid by our 01l1e& and should be Iha starling point 01any job search by lawyOrS looking to change jobS." Each monthly Issue c011alns 500-600 current (public/private soctor) jobs. $45-3 months. $75-6 months. Contael: Legal Employment Report, 1010 Vermont Avenue NW, Sta. 408-AB, W(lShlngton, DC 20005. (BOO) 296·9611 .

Visa/MCIAM EX.

Alabam a 35203. Parking tor attorney, secratary and clients. LlbraryfU tllltles. receptionist, copy machine and Iii-X, Call Wayne Wheelar (205) 322·0627.

Available Immedlptely.

LAWBOOKS : The Lawbook ExchflnQe, Lid, Buys, sells and appraises all major lawbook sets. Cal t ·800·422·6686, or fax 1·908·686-309B. MaslerC<'lrd, Vi sa il-nd American Express accepted.

Catil-Iogues issued in print and online al WWW. IB wOookexc.oom.

ATTORNEY Pos mON: Sm<tll insurarlCe defense practlca sooks asSOCiate with live to seven years'litigalion axperi· ence. Submit resumo In confidenca to P.O. Box t 003, Mobile, Alabama 36633.

FURNITURE: Conlerence tabie In walnUlllnlsh, 12' long (one-piece top), three pedestals with 12 till 8nt1 $wiY1lI arm chairs on rollera and tour sldo arm chairs. All in excolent col1(jltl onl $4,50(}, C811 (205) 980-0009.

ATTORNEV POSmON: Medium-sized Huntsville fi rm Intere51ed in a re81 oslato attorney, prelertlt:Wy with il-Iloast two years' real oslale oxparienca.

Partnership/associate poI;ltlon·baSad upon axparianCe. AlllnqJlrlas wUl be Kopt striCtly conIk:lanlial, Sand rasome to: P,O. Box 2395, Hunlsvllle, Alabama 35804 . •

POSITIONS OFFERED ATTORNEY JOBS; Harvard Lew Schools calls our p.Jbllcalion, "Prol).(lbiy

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