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Cotto" n , ld /" 'lOfthusl Afll/HJIIIII. Although cotlon is grown in most oounllu In the state, it Is mort conce ntr~ted in the Ttnncs.s.c:c Vallty and the Wire,r., arru.

This ytar. Alabanu cotton (armers NMSttd about 570,000 !>alu of cotton. UmcMorw County leads the galt in cotton production, arod Alabama ranks 11 th RIIlil)NJly. Cotton is planted In the 'Pring and me(hanically harvested In the r.lI, - Pholo bv Puti Orowford, JD, (.W

IN THIS ISSUE 1998 F'ALLAoMIlTI;t;S

., •• , ••••• " ••• , •.• , ••••.....•..••... ,"

COMl>U1TIE ON Aco;ss TO LEGAL SERVICES HONORS VOWNl'EERS .........

EMPLoYE!! LIAUIU11' IN SEXUAL H~RASS.\IEm' CASf.s: 1\00 NI::w U,S. SlII'REMt: COURT DECISIONS •.••••.••••.• ,.,'''',.,.,

, •.•••. • ••.••••.. , •••.•..•••.

Til E Nt:w LITrGATIVJ<: ~:NVIRONMENT: Dl::n :NJ)ING A CLIENT IN PARAW:I. CIVil. ANI) CIllMINAI. PROCEEDINCS .••••••

TlU: AIAHA.\\A I,.AWYER AssiSTANCE PROGRAM • ••• • •.•••••..•••.••.•••

MARKER HONORS

At..AJw.1A STATE BAR

AOOITlONAl. A~n:NOH~:NTS TO THE RUU:S OF TI lE UNITED STATES COuJrr Of' A1'1'EAlS FOR nl!: EL.EVl':NTH CIRCUIT •••.•• , ..• , , .•• • , ..•• • • • • , • • 68

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Executive Oirector's Report

12 I~i rm s

2. l3uildlng Alabamll '~

Oltlcl,t Viclor 11. Loll. Jr., MQOIIt ...................... " ..... ". " ..................." ....... .. .. ........." .. ..... ,............. Pr • • lll6nl W.III H. s...ley, DoINrJ. ...... ............. " ......................... ,,"" , .... ,., ...... " ... "" ... ",,, •. Pr..l(Ifnl·t/IC1 ............... _........ ,VIcI.prQkIam D6'11d R. BOyd. MOrII~ry ............. ............. ......................... . .. ,. ,,, .. ,,",.,, .... , ,........ ,.......... ",.,. ,.sec,.taty Ktlm e, NO/JlI.In. Mor11111""t'Y ..................... ,." .. " ..... , Aoard of Comml .. Ial Clfcull. E. Marl! Erel, ButIef. ~ CkcuI!, Frank A. I1W;kman, G~. 3rd CltcuIt, WrlWMn I. GrUIltI. II, EufBuWo , 4th Clm.rII, FWph N. Hc:ItJt», SIImtI. &Ih CIfcuiI, EmNh S. SIIpp. TUIkeOH. 6Ih CkcuI!. PIa:I /110, I. W. ScoI1 Dor.alIIIon. T..acaIooIa, 5Ih CWeuIt. PlAcer /110. 2. J. ~ McEIvy. T~. 7lh CIrw~, WlIIiIom H. AI'or'OsIOll. $lIl CirWl, W"m E, ~ , ./t.. Dtealut. 9\11 CItcuiI. W.N. W~teOn. Fl. PloY"", lOIh CIrculi. ~ NO. 1. SBrnuII I1 . F...wJIn. ~ 1()O;h CIrwM, ~ NQ. a, J9mN W. ~. ~ 1(>11\ CltcuII. PIIIOI No, 3. J. MartI WIllIe. Bhmir¢lm. 10lIl Cin::lr11. ~ No. 4. SarnI* It. RUIIlOr1r. Jr.. BIrrnIngNIm. 10th Cimlh. """'NO ,~, Ellwa«l P. MIjItrIOrI . 51"""'O/11m. 10lIl CIrculi. ~ /110, 6, M6c 8 . G, ........ Bi~ . IDIt! CirculI. ~ NO. ' . ~ It. ~WiI , ~nnlngNlm. 10lIl C\rwI!, PIr.ot No, S. M/I.o: C, Porlt . .)r.. 8/frring/'llm, IQlh CifcutI , I'(eCI /110. 9. caJOl H. Silwart. IIIrmInQIIam. Bautmer CUl-ol!. OoorQfl M. ttogInboIhIm, 1Ie_. 11th Circuit, I'Iobtrt L GorQ. ~..-o. 12111 CIrQriI. JcIH!lII E. F.uIk. Troy. 13th CIraril. P'- NO. I , WIIIe!< ~. Mobile. 13Itt CirWII. ~ NO, 2. Silly C. SoIItoIe. MobItr. 13lh Cln;:uil. PIDc:o No. 3. CaIna O'AHr. III Mct!iI9. 13th Cin:utI. PI,\ot No •• , ~ J. C()jl ...... MotiIt, 1.11\ ClIQIII. PNNQ P. NIIIOn. Jl\8I)fr. 15!h CIrculI. PIacoII NO. I. ~r\ O. Segal, MDntgDmary, 15111 Cln!uIt, PIAI;. NO. 2, Wandol D. 0...,.. "". Monigr;>rl-..'"I'. 1$111 CkwI1, PIIIQI No. 3. J _ E. Willama. MDnt!lOfl'l'"l'. 15th CirculI. PIaca NO. 4. Thom8I J. MItIhvIn. MonI(/OmIIry. IlItIl Cin:utI. 1'(eCI No. 5. 0.'11<.1 A, &oyd. MOnfl/Ot'l"4ry. 16th CirtvII. GIorge P. Ford. Gad6cIe!I , 17111 CkwiI. T. -;1or T. Paffy. Jr .. DIrnopc)III , 18111 Cireuil. COrIrad M, F~. J, .. ~ 1(/lh CitM JOlIn ~.kWII<fOI\ Jr.. CIIonlon. 20th CIrwI!, AulUi R. SmI!h, ..I" . DoIhan. 2 111 CirculI, ChilO.... R. GodwIn. Aunore, 22M Cire\Iit, &II V, .IO/IMon. "",,,,1uIWI. 23rd ClraAt. ~ /110, I. ~ S. P~II, Hun~ . 2~ CIrl:uII. PIaca /110. 2, P81ric1l H. 0(8_,.if .. Hur\ItYiIIe. 2.11\ CirculI. 01/1,1&1 A. lIlnvleY. "ayelle. 2M1 CireuIt. Qjjyo, Frederick Wood. I'IIImIIIOf1. 26th CirruiI. ~ W, ~". Ji" Pt.tnbc CIty. 271h CittlvIl. JoIv> C. GuIIW'oorl'l, AIOI~II&, 28111 CllCUI. €.E. Bal. filly M~" 29It'I CircuIl, R. Blake laHnby, TIllAaIIge . :xI!h Cln:utI. J. ~ BonUey. OrooonLl , ~ 1 " C4rcuh, WiIWA.rn K. ~II. TUICU!T1bII , 32IId Clrrul, Roy W. WoIliIma, Jr" CIAmIn, 33n:I Cimlh. f\obart H. II<o(IgIn. Cu,lI. ~Ih CIrculI, Aotl.rt I. ~ . .)r.. A~. 35111 C4ouiI. JoI>n B. Bernett 1I1.~. 36111 CItrut, CMII Malcom. Moulton. 37lP1 Circ\MI., J, Tuu 8II"e~. ~ik.tr , 38th CIn:uiI. S\Opllot1 M, ~mer. ScoUoI!aro, 39m CirculI. ""..... M . Corllltr. Jr.. Au..n.. 401h CirI:uI1,..John 1(. Jo/lnIOrI, Roc:kIotd TM Alto"""'" 1..<1..,..,,11 publiitlad QVlH' II""" II 1'"' 10< S20 1>11' I'M' In!~ Unlled Sla. . ana 125 PI' Yllr OYllkit lilt \JPlltMi Stall. try lilt AJab/i"... Stal. SlIU. • 15 AV1Ir'IUe, MonIl/Orn8fY. AIabarnII 36104. SlngIe III".' .,. $11,00 10< I'" Jor.r"""11(1 $2»60 forint OU~O!Y. P$rIodicalt OOtllOg. peklll MOnlg.omt'), Alabama, and addilional milling oIIic6I.

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Memorials

Among

Roberl • . HuHak" ..............•.. "... ........................ ............................ ..... ." .... " .... "........ Chait & Editor SuMn ShlfOCII Deptola ....................... ,.....................................................................Vk::o.chll' & Aaoodlola Editor OOw;! B. CnAmplin ........"",.............." ...."",,... ,,",,..... ........ V~C~.~. f l _ s..un f-I. ArId............ ................. ....................................... SLlH Ur.leon '" CQmm~IIIIn' 01,,..;10< M''lII''II.. Mu'p/ly .. "" ........................................................................................... SI.lI l111lton '" MBr'IIIging Editor Rila M. Gr.y. ............................ . ................................................"'dvtrliling Boar(1 0 1 1!(lIIO<t Undil G. Flippo. BI,rrjl\!Nlm • HOII. Pamelli W. Batehab. MonlOl)motty • 0."'" B. CI'I&~iI\. 8irmongM.m • l!ugenbI H. MulWns. Birmingham . Samuel It. Rumonl. J' .. Birmingham ' J. TImolhy BI~ ' Robe" S. smtill. HU~LI~IIe ' 000II J. MCPIIe,eon. MonIQOr'l1llfY · w.ndeII J. Chamblill. BInnIngtwn · GIDndo G. Cochrln. BlrrnifIQtwn · M. DontJ\I 0. ....... JI .. MOOIIt · VIc\orIfI J. Ff8n11li11-SlIIOIl. 61rm"'Ohilm · WII~am O. OaM. Birmlr'.gl\am · HarI. Dttt><a OoId.t<tIn. Birmingham ' Lynda L l1endtbt. Tru ..""'" MkN .. A. K1n1J,nd. MonIOl)mot'Y ' MarOll"1 Kubln~yn. Bi,...,ngIIam · AllIn T. Routr •• BirlTMnO/lllm ' Mall""" A. Vega. 61,mlngl'l&m ' Robarl M. Wt>inborg. Mcnlgotnory

I.0"".

Bar Briefs II

M ~ mbers,

Hmss a year (Iha June I88UElls a bar dlrllCtory edition) by the Alabama SIIIIII 811r, 41S(1. Monlgomgry. Alabama 36101·41M. Phooe (33<1) 2n9-1515 ' www,a1abar.org

St""".

President's Page 6

About

I1eV~1n

80~

Ci)u rlhou~e~

30 Opinions of the General Counsel 32

Do,,,,

Legislative Wr"p-Up

AlAlIA.llA STAn: liAR

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ST,u"F

415 Dtxtt r Avtnue. Moolgomery. AI. 36104 (334) 269· 1515 ' 1::u'''II~

Young Lawyers' Section

59 AlabJrnil Mediation & Arbitration Training

Dir«Ior ................... ,........ Kfilh B, HOlllloln EIKU11"" .....1.I.nl .......... _.....Mar .. rcl IIooM Vinelar ~ Pratlrllnll .... ,,, ............... f.<lwor<l M. r ln.non Mmlnlwatl"" .....1.1>.01 {(I Pfflj'~AIt ,.. """ ... II .ldl ~ll'I!j Oi..etor ~ Communkationt ~ I'Irbllc In{ormillon ......... " ................. 5u.. n H. And". l'ubllcollono Oi,ocIO, ... .. ......... Mafi.l"II. M urph~ C4tn,nunitlll\(MU & l'ubllcallon ...... i......1"" .. " Ri ta C'OY H' ~Ilhlr $trW:u Dlrtc\Of.......... H.. "H." Db .... W,IIIor\ H,mbon hip AlII.lanl "..... _.............. ,...... M ~ r M Mdl.nf)l DinCIr)r ()/ AIImluMII ...... ,... "."' ...... DurvIhy I). Johruoo Adml ..lon......" Lanl> .. ".. .. .. """ .... ,, .. "".,."Mof)l C.,.,blll J.nni{n ILK<h", III.tw. ..... !,ow "0\0~11on, 1~. I~mlo>r .......TrlIC\I o.nill H ...

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l'ro,lIl m Ilirlclo, ......Jam,. Mid. Inl ll! (834·75161

Diseiplin<lry Notict

61 f~ecent

Decisions

6' C la~sified

ALAlIA,'lA STATE liAR CENTE II " IIOn:SSIONAL IIt:Sl'ONSIIHLI1Y STA!'!' M 011~omery. AL 36104 (334) 269· 1515 ' PAX (334) 26]-6311 • ~:·mall (;t"',11 Co)\l r\KJ "H'."""~'H"H"~".,~ J, Anlhany M. Llin Clio"1 s..:u';l)Il'und. C5P II

41 5 1)(~( tr "\'tOU t.

Notices

AII"tanl Gentrlll Courucl._n_.H .. _H. L Cilborl K.nd,lck Ct.r. Cao,diMI .................................. Il<>nni. Mol...,. AIII>1an1 Ge .... rlIl COUrucl ...... _ .... _ ...... .Mi llD11 L M.... l'aral'lIIW1nvu1lplon _ •... _ ...... PtIUl)' COrMI ,...btanl Ge""n) COUrucl. •...• _.• _ ...... _.RIIbI!rt E. I.usk. Jr. CIILf)'I 1I>I\IIln s..:rol.lfY !a Gentral CQUM!1.._.. ,••. _.. __ ._.VMan F.... man RobIn K f)' C""","lnll Intalc. _ ,._ .. _........... _ .... _ ........... Klm F.llit Hf(tptlonlll ... " .. _ ... H.H ... _ ...H............" "H,h ... Pu'iIUa ",._'...,....IfIStI IIOI2..a7I, .. _ _ .... _ _ ...... ..-... _ _

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PRESIDENT'S PAGE By Vic IAII

n nearly every survey of la'o'l)'trs conover the past stveral yean. I ducted

poor ~ rceptlon o(lilwyerS by lhe public and tht lack of profU5ionl11ism and civility hnve rllnked, respectively, 1I~ the

number one and number two concerns of laW)'trs. This is ce rtainly lhe cau in Alabama as renecltd In Ihe resulu of our 1998 survey on lhe profession which we reported \0 you in an eartier edition of rhe A(olxmllliAIU'Y(Jr. In response to you r concerns, and as a pari of our strategic plan, the stale bilT has undertaken several iniUiltlves \0 address these issues. Though these I<,\,'() concerns are ecrU.inl)' interrelated. "professionalism" is of p.lrticular concern. We are actively trying to improve the pub-

Are We Willing to Be Professionals?

Vic LoU

lic's perception of lawyers. though given the adversllrial n:tture of our legal system, I do not think it is realistic to think that we will ever be looked upon kindly by all of our citizenry, Professionalism, on the other hand, is almO$t entirely up 10 us. As you 311 know, when we $pe3k of "profe$5ion"H~m." we are not JuSI talk路 InQ:lLbout ethics, or COrnl)lyi ng with the Ilules of l'rofcssiOlml Conduct. or competence, or even civility in the context of litigation and other deali ngs by and between lawyers. We are, In fact. talking about all of the above and more. I have been practicing 13w since 1975 and I certainly remember a kinder and Itentler ilPpTo..1ch to the practice of I'tw. We worked hard. but few lawyers kept lime sheels. We took se\!tral breaks durIng each workiliay \.() visit in the office or ovtr a cup of coffer, and your word to another lawyer Wa! your bond, While litigators were aggreMive adversaries for their clients. I don't recall the meanspi ritedness and verb31 haranguing thai pervades IitiJlation today, particularly during the diKovery process. On the other h3nd, our ()I\n surveys indicate IhM lawyers in Alabama and elsewhere generally n'lllke more money than in the past. even when correctcd for innation.

If we are to change our ways 3nd try to re-Instill "professionalism" into the day-to-iliay pr<lClice I)( law in AlabMTla, we each must IN! willing to make some vcI')I di((jcult decisions, which, in many instances, maya((ect our pocketbooks. Are we willing to do sol We are driven by the dock in our practices today, particularly in the larger firms in metropolitan areas, but not only there. Are we willin!!: to reduce hOllrly 1t0tl1~ for the lawyers in our firms in order to improve their qLl<llity of life, and, perhaps, <lllow the", to sl)end some of their extra time providing pro bono services to the rnany poor and indigent in this state who cannot acce55 our sys路 tern despite our best effortJ to date? If. arter llnalyzing a potentilll cause of llction 011 behalf of a client. we conclude thlllthe clienl's case is weak or nonexistent, are we willing to advise the client of such, or do we take the case hoping to extort a small amount of damages in "settlement v3Iuc"] Worse, are we willing to file oomplainlS based on unsubst.lntillted allegations of a client without completing our own due dili. gence, to ensurc thllt no one else beats us to the case? In general, lire we willing 10 make decisions about the clients and the cases which we accept based on purely professional motives. or are those decisions based in significant PMt on economics? ~'<IT too orten these days. I think our <ln~wers to all of these ques\lOrlS revolve around potential profillibility to the lawyer or the law firm. instead of our responsibilities to each other and to our profession, l'low orten have )'Ou heard a lawyer defend the filing of what should be categorized as a frivolous lawsuit by st,lting that if he had not flied it someone else would? If our justification for the pursuit of quutionable cl<lims is to fall back on the various remedies intended to protttt one (rom the filing of "frivolous lawsuitJ, ~ then [ am afraid we are living by the letter of the law instead of ils spirit. This is nol profes-

sional conduct and it is not what we should aspire to if we are serious about "p rorcs~iona1ism," NI.'Vertheless, i()IOu are l!. young IlIwycr with $50,()()O or $ 100,000 in student debt staring you in the (ace, these decisions an! very diffi· cult, and they don't get any easier as the ranks of lawyers ~ithin our profeuion continue to swell and the competition for legal busincss becomes more and more inten$t each year. Another area where 1h.wc grave oon· cerns aboul tile lack of professionalism often arises when Illwyer$ dl.'Cide to move from one practice to another. The mOVe· ment of lawyers from one firm 10 ,moth· er has become much more IIccellted Ih.1O in the pa5t. but tilt manner in which one departs a practice is governed by anum· ber of ethical rules which. apparently, om:: unkn()wn to m~ny practicing Illwyen. or simply ignored. On many occasions in the p.1.~t sewral years. I have hellrd lawyer! complain of p.utners or lWOCiatu who announced that they ....'ere leaving to join another practicc and that. "Oh. by the """1)', I wel\tllhclld ;lOd contacted all of the firm 's c1ien15 and many of them are leaving with me. ~ When this conduct is challenged. the re5p(lnst is often something along the Unes of, "Wtll, they were my clients any· wilY," or "I had to ~now who would go with me b<-fore I made the decision to leave so I could evaluate my ability to make ends meet. ~ 1understand the rea· sonlng, but this type of conduct is unethical. disloyal and unprofessionill. Once ag.lin, many lawyers are milking decisions like this b.lsed on financial concerns instead of thinking first 01 their profeSSi()nal re$p(lnsibility to their col· lellgue5 and partners, and lo their profession. Tony HeL"in, Ileneral counsel of the AlaruuYm StOlte Bor.lms written an article in this edition of the LowVlJr explaining the various ethical concepts which bear upon the departurt of a lawyer from a law firm. and I recommend that each of)'Ou read this. J am sure thal 0111 of you CM think of many other examples where our professional duties .stem to be at crOS$ purposes with other personal or institutional gools. We c.an talk about "professionalism" all we ~ant, but until and unless we each aTe willing to "('llk the talk and walk the walk," OIS they say, professionalism will remain a loftyaspl·

ration which we have no willingness to ilchieve. Yu. these (Ire difficult decisions. Yu. some of them may even have an impact on our level' of income. But. if we are not willing to mOlke these sacrifices, and many others thllIembody the "professionalism" which ~'e seek, Ihen we need to quit worrying about public perception, quit calling ourselvcs profcuionals, just admit that we h:lVt become a trade association focused solely on profitability, and go about our business. I don't know of many lawyt':r5 who are ready to admit \0 this, but we can't be hypocritical lind expect the public not to call our hands, The same people whose perception about us is of great concern are the ones who set us make these unprofessional decisions every day, We can't allow ourselves to be manlpulatcd by Oll r colleagues or our clients to conduct that 15 unbecoming and lInprofe~slonal. We must be willing to draw the lint in the $and and stand up for our profc5:Slon if we are ever to regain the mutual respect for om profession and its pro(c55ion.ds which \\'e desire. •

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Bar Facilities Expand for New Programs

" $ tht numbtr of members of the b:H n il"! incre~d since the slart this decade, the bar has added programs to

meet the v3rying needs of an expanding

membership. In 1 9~O, there were 9,300 members, As we begin Lhis new year. our membership stands ill 13,6001 In leu than a decade, we have added a dozen new membership benefits, t.g. Ai rborne ExprcSl dl$Counts. AT&T long distance service, Pennywiu Office dis(OUOI$, :md nin" br;lIld new practice $ections. Additionally. during this peri. od of growth, the Iloard of Bu

Commissioners approved the creation or (our major programs that were recom· mended by committees appointed by previous bar presidents to study existing needs within the bar, These programs are: the Volunteer l.aw)'tu I'rognun (VI.P), Llw omce Management AulJltance I'rogram (I.aMAr ), F'et DIJlpute Mediation a.nd LlW)'er Aubtance Program (AI.JIP), The Alabama Cenler for DI'pu te Resolution (ADR Center) has also been operating at the stllte bar for the last several years.

With these n~st programs.lhe bar offers a broad range o( suviccs designed to help increase lawyer I'Iroductivity and efficiency, liS well M nlllke it casier for lawyers to fulfill our professio n's com· mitment to publiC service, In essence, these programs are offered to help you be a beller la~r, This expanded array o( programs and services has made it necessary for us to reorgani~e e,ll:isting staff and add addi· tional sta(( to provide the best service possible, As a consequence, we lire com· pleting work on II portion of the third floor of the state bar helldqullrters build. ing 10 1I((ommodate this program growth. The third floor was constructed during the 1990 building campaign for future expansion but left unfinished, The bulld·out of a portion o( the third floor will provide us with neetled office ~pace fo r VLP, LOMAI', AlAI' I\l\d the AOR Cenler to operate efficiently, Joinirlg these prOl:trams lind the ADlt Center on tilt third floor will be the Alabama Llw

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Executive Director's Report (Continued from page 8)

"'oundallon (AU'). Also included with the expanded f~cilities on the third noor will be a slllle-of-th e·art video·confertnce facility. This facility will be available for bar committees, task forces and sections to use (or conducting meet ings. When not in use by bar groups. the video-conference facility will be available for use by bar members on II (1'1' basis. We anticipat~ th<lt tht' third ncor work will be completed this month and that fumishln~ will be delivered and installed by ellrly ~·ebruary. We are excited about the completion o( this new space and the opportunity (or these programs to opernte in offices that arc more than makeshift. Our past and present officers and commission members should be praised for their foresight in constructing II bar facility to IlCCOfllnlO· date our profession's future needs (or growth. These individuals also deserve our thanks for their ste\\'llrdship.

IleCllUSt of their wiie management of the bar's resource. the build·out of the third ncor will be a;complished without the need (or a dues increase. The

Alabama State Bar is poiied to enter lhe !lut century with programs and services that can help make the Itgal profc:uion even stronger in the fulure. •

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BAR BRIEFS

• Hope Place, Huntsville', , heiter for victims of domestic violence, has IllUllW attorney Slacey lIalre: "Volunteer orthe Year," The annual lIonor goes to 11 person whose gift of time and energy provldlod exceptional help (or IIOPE Plact's clien ts.

• Charlu A. Stewart, III has been elected pre$ident of the Alabama Odcnse 1...'l.W)'cr$ Association (ADLA). Practicing in the f.tonlgome!,), offi ce o( Sirote &: I'ermutt. Stewart Wiu voted into omce at the group's annual meeting r«cnlly held In Birmingham.

In presenting the award, HOPI:: Place Executive Director I<alhy Wells noted thai Ms. Haire routinely goes far beyond what her job requires. "Once a month she comes to the shelter so Ihal cHenlJ eM ask her legal QuestioN on legal m<lUm," Hs. Wells said. "She's also the advisor to IIOPE Place's Legal Assistance Program, and she trains our .:ther vol· unteers in child cUStody, proledion order and other domestic violence laws.~ Ilaire received her J.D. SIIK'tj !lIliN from the Univusityo(

Alabama School of L.aw in 1995 and joined HOPE Place as a siaff attorney. She joined Legal Services or North Central Alabama in 1996. In April 1998, lhe women's shelter in DOlhan nomi nated her fo r recognition by the Ikpartment of Justice during National Crime Victims' Week in recognition of the succt.$sful appel. late brief she wrote (or the Dothan shelter. • Assistant Unite<l Stales AHorney !'Ilichel Nlero&\ was seletted iu one of the fiVf recipients of the 1998 Younger Federal l..awyeu AWlrd sponsored by the Federal Bar Association. Now in its 31st year. this award program is dcslglled to recognize outstanding young federal attorneys selected (rom among those nominated by agenc)' heads, general counsels and (ellow attorneys throughout the count!')' and OVfrstU. Civilian and milital')' la~rs who have at least three ye<Ju of continuous federal service and lire under the age of 36 are eUglble (or the award. A panel or distinguished federal judges selected tht recipients. Nicrosi. who I~ the chief of the criminal division o( the U.S. Attorney', Offict in Hobilt. WIIS honored at the Federlll Bar Association'S Annual Convention in San Antonio In October.

J. MI"/(lI1d HIJj<'J. 'N.1I,*lt~r tdftOf'. IIHlAYI prt'Jltl,'ullon JAA"fI' Smith ami Thamot IV. &rowIn,

to R. "u<lIn /luffuA'w.

• The Environmental Law S\!ction of the Alabama State Ilar recently announced the winners of its 1998 Envi ronmental l ~~w Essay Contest. The firsl prize of $300, second prize of $ 150 and third prize of $100 were awarded to Thomu W. Scroggins of Montgomery, Jason Smith of Ile(orm and R. Au, Un Huffaker of t-1ontgomcry. reJPectively. All three are seniors at the University of Alabama School of taw and students of Will iiun Andreen. pro(es$(Ir of envi ronmental law. The annual contest is in its fourth year and is optn to aU students enrolled in 1m Aillbllnla law school. Essays may have beel' Submitted fo r course credit or (or law reviews. but not :u part o( paid employment. The first place e5~)', b)' Scroggins, entitled "CERCU Liability and ln5urance I nd emnity,~ alll>f!ared in Ihe fall iuue or rhe ElIfQw, the quarterly newsletter of the Envi ronmentall...1w Seclion. • ~."u.AY

'9" "

M EMORIALS

Judge Robert W. Gwin, Sr.

Whereas, Robert W. Gwin, retired

Jdfer$Ofl County District Judge. passed aw..y on June 8, 1998, after 3 dis-

tinguished leWlI and judicial career in llirminghllM, Jefferson County. Alabama: and, Wherells, the Birmingham

aar

Association desires to honor his name and recognize his cont ributions 10 the legal pro(mion: and, Whereas, Robert W. Gwin was born on August 19, 1912. in Be~selller, Alabama, and grlldullted from Bessemer Hillh School in 1929. Judge Cwin grad. uah:d from Howard College, now Samford University, in 1934. and rtcelvtd his LL.B. degree from George Washington Univtrsil)' in 1939. Upon his return to Birmingham, Judge Gwin began his legal career as a partner with Howard Sullinger in Be"emer, Alnbllmn. He was appointed Assistant U.S, Attorney in 1943 and in 1946 became associated with the law firm of Beddow &: Jones. Judge Cwin became II partner in tht firm of Beddow, Cwin & Embry in 1951 and lifter serving liS Assistant District Attorney fo r both the

BU5emer and Birmingham divisions of Jefferson County, was appointed as the presiding judge of Criminal Court of Jefferson County in 1965. He later became president of the Alabama District Judge's Association, After retirement as the presiding Judge. Judge Cwin received appoint menu by the Chief Justice of the Alabama Supreme Court to return to advice judicial duty for J5 continuous yCIlTS: and, \Vhcrcac;. while a partner In the law fi rm of Beddow, Cwin &: Embry, Judge Gwin p.lrticip.ltl'<l in numerous noteworthy criminal trials .....ith Roderick Beddow. Sr" including the defense of Albert Puller, one of several defeml.lnls acclised of the murder o( Albert Patterson. the then·[)emocr:.tic nomi· nee (or Attorney Ceneral; :lI1d. Whereas. while serving as district judge (or 18 years. Judge Cwin was a member of Ihe Executive Committee for Judicial Reform in the State of Alabama and p.lrtieipated in the establishment of the current Unified Judicial System: and, Whereas, Judge Cwin was a member of the Democratic Executive Committee, deleg;.\e to the Democratic NMional Convention at fou r con\'Cntions lind was iI member of the Jefferson County Board of Education: and. Whereas, Judge Gwin !trved as chair· m~n o( a citizen's committee working toward the incorporation of the City of Vestavia Ilills. also serving as its city attorney and city judge, was a member of the Vestavia Hills Bislorical Society, the Vutavia l'I ill5 t:xchange Club, the Episcop;ll Church of the Ascension and The Club. He was ilso iI ('o1a5On. a Shriner and a member of the Elks Club: and, \Vhereas, Judge Cwin was predeceased by his wife of 57 years. Harriet Wise Cwin. and is survived by their four children. Ann Cwin Keith. Robert W. Gwin, Jr" Cay Cwin Fowler and David

White Gwin. I-Ie is also survived by his beloved wife, Virginia Hanners Cwin. whom he married on January 4.1997, Be It. therefore. resol\'ed. by thc Executive Committee of the Birmingham Bar As.sociation that the leglll community was well se1W<l by Judge I{obert W, Cwin. both as an active practitioner and advocate for his clients in the practice of law and as a fair and Impartial judS/e. - Stephen 1>. l-!enlnger I)re.ldent, Blnnlngham Rar AlIIIociation

Jack G. Paden G. Paden was a member of the Jtimeack Busemer Bar Association the of his dCl\th on October

at 27, 1998. I first knew Jack when he was a member of the trust department of AmSouth, (ormerly First Natioml ~nk of Birmingham. This was in the early sev· cntin :md then, /IS always. Jack displayed his unique abilit)' to be a $outi1crn gentleman. J3Ck was alway~ a favo rite lawyer of the Beucmer Bar Association. always affable, always pleas· ant and a pleasure to be around. He loved his family, spoke of them often, particularly his grandchildren, and of his place in North carolina. Jack attended l1irmingham Southern College, "raduMing in 1947. He received the Bachelor of L.awand Doctor of Juris Prudence degrees from the University of Virginia in 1949 where he was editor of the Virginia Low Revh!w. He continued his educ:Jtion lit Columbia Univenity and the Northwestern Trusl Banking School. Jack was an active member of the fol · lowing professional usoeilllion5: The lJeS5emer Bar Association. the Alabama State Bar al1d American Bar Association. I-lis excellence in law wu recogniud by citing him M a member of the Fellow of International Academy of Trial Lawyers

and the American College of Trial Lawyers. While lit Am$outh, he was appointed vice-president and chief executive officer of Ihe trust department. M a prominent citizen of the community. Jack was assOi:iated with the following: chairman of the board of Hillcrest Foundation, president of Birmingham Southern College National AlumnI A.uociation. president of the Alabama Ballet Company. board memo Der of the Alice B. Stephen's Performing Arts Center. and a member of the bo.1rd of the American Counsel fo r the Arts. Jack served on the board of di rectOrs fOr the National Alliance for Research of

SchizophrenIa and Del1re禄ion and director of ]l&M Bank Corporation. In addition. he served on the bo.1rd of the Birmingham Civic Baliet, the Birmingham f.1useum of Art. the Birmingham f.1etropolitan Arts iUsocialion, as forme r president of Town and Gown Theatu. and on the UAB Arts lleard. Jack \'ias a supporter of Birmingham Summerfesl. Birmingham Festival Theater. TerrifIC New Theater. and the BJrmingharn ()pcra. Recent honors were d ted by the Alabama Msociation of Independent Colleges and Universitlts and the Counsel for the Advancement of Private

George Rushton Baggett

Colleges in Alabama which recognized his innuence in education. In June of 1998. Birminghllm Southern College honored him with the Doctor of L.ilWS Honoris Cau5ll. Jilek 15 survived by his wife, Marjorie C. Paden: daughter Lisa I'. Gaines and son-in路law, Had: grandsons Oewn and Paden Caines: brother I~obe rt E. Paden and sister ~:1izabeth 1'. Holt. Jack will be missed by all or his friends and family and particularly, r will miss seeing his 5mile ilt a local favorite restfluran l. - Clinord W, Hardy. Jr. " "'Ildent. BU&emer 8ar Anodatlon

Died: May II . 19.98

Jack Merrell Nolen. Sr. Fayette Admitted: 1952 Died: eptember 24, 1998

Thomas Merle OeRose

Jack Gideon Paden

Tallahassee, Jo1orido Admitted: 1979 Died: September 4, 1998

Bessemer Admitted: 1949 Died: October 27. J998

Day/on. Ohio Admi/ted: J953

Joseph Michael Hayes lIar/fo rd, COllnecticut Admitted: 1968 Died.' March .16, J998

William Dunn Mallard Atlanta, Gc!orgia

Robert Sommerville, Jr.

Charles Albert Nix

Montgomery

Westpoint, Georgia Admitted: J95.1 Died: October 10, J997

Admitted: 1929 Died: November 18. J998

Admitted: 1971 Died: August 25, 19.98

James Reese Phifer Tusca/oos(1 Admitted: 1940 Died: October 25, 1998

Wesley Reid Smith Albuquerque, New Mexico Admitted: 1940 Died: September 27, 1998

~.Nu . nY ' DDD I 13

Fall

STATISTICS

OF INTEREST

Number sitting (or exam ...... , ........ ,.,', ....... ".,", .... ,", .. ,. ,.,", ... , ..

57 1

Number certified to Supreme Court of Alabllm<l ... , .... ,., .... ", .... ,., .. . ".""".,.

399

Certifi cation rate'" . . .... . ......................•... . .. , , . , .... , .... , .... ,

69.9 percent

Certifica tion Pe rce nta g ss:

University of Alabama School of L<lw, ........ ' . . ' . . ' ...••... ' ... , ' . •. Birmingham School of Law •. , ... , .. , . , .......•............... • . . . . Cumberland School of Law , , ..... , .......... , •..•.................

Jones School of Law, •....• , • , .......•.•.....................•... . Miles College of Law ... , , . , . , ... , . , .. , . , , . , ., , . , ................. , • .... "'Includes only those successfully passing bar exam lind MPRE

~4NU."T

"100

95.4 percent

38.5 percent 8<1.3 percent <18.6 percent

10.3 pe rcent

Fall 1998 Admissions Ceremony Remarks Given By Perry O. lioopet; 51:, chidjustice of Ihe Alabama Supreme Courl

ongralulations on bccominlt member of ont of lhe finest pro-

fessions known 10 mlln.

Conllratulations. also. to those ..... ho helped )IOU to get where you lire- your pMcnt5. Jlrandparfnl5. a wife, a hus· bllnd- pcrllllp5, a Ilood friend. We cer· tainly wllnt to re member yOU T excellent professors who worked wilh dedic<llion in tCllching you the: fund:lmenta ls neeeS5al')llo becoming <I lawyer. All of Ihis makes)'Ou unique, because relatively \leI')' (e ....' ilCople havt IIIt11inCd what you Imve attained. In 1997111(' population of Alabama w~s 4. 141.410. There weTe only 8,23 1 Iirel1scd attorneys in Alah'Ul1a. a lIery small part of the popula. tion. There ilrc those who mistakenly say there are too many lawyer~ in the United States of Americtl. As lonA as we are a free peoille. there will al\\'3y5 be a Areal need for a very substantial number of la\\')'(:rs. Jusl how Il.ood a Illwyer you will be. will be entirely up 10 you- limited only by your desire. The grelLler tile desire- Ihe Arcilter the Iilwyer. You arc unique. bee-1Use you belong 10 Ihe Mil'll! professior lIl<ll a large percentage of our foundin!! fathers belonged. TIlere is a kinship IWld a relationship in the legal prof~ion. It is the n<llure of lawyers to believe in the freedoms of the individual. Our ver)' reMOn (or existence is to protect those right.s .md frecdolll$. There was a greal spirit that inspired our founding filthe ls. There is hardly a Arnde school student who will not quote alonJt with you the~e words: "We hold the5e truths to be self-evident thai all men arc created cllual. that they are endowed by their Cr~alor with cerlain unalienable righu. Ih.,t ilmQnI! these are life. liberty and the pursuit of h.1Ppiness." The more you think on these lx!autifuJ words. the more meaningfulthcy become. What. students don't seem 10 remember are lhe last words of that great DecliITlltlon of Independence: "And (or the support of this Declaratlon and a firm reliance on the protection of Divine Providence. we mutually pledll:e to each other our I ves. our fortunes and our sacred honor."

J'W! onen thou~ht of mose words. Divine Pr(IVidence, and the (ullmclming. The best way I know i5 to dc~rilx! the jI.,,1 that two of thOM: signers playtd-111onw Jcffe~ and John Ad:tms. One the principle author. Jefferson. the other. JOJ'II Ad.~llU. The Declaration was executed on July 4. 1776. Hoth of these men IlIler occllme presidtnls of Iht United Slales of America. The 1v.'O men died exactly S(l yc,lr5 later on the eKact s.,mc day of July 4. 1826. I lave you eller lhoultht of tht odds llt lhIItlime of such an oco,lrrence? We hear n lot llhout lotteries thde: rul)'5, r lllade an inquiry about Ihe odds of winninlt 11 101tery. 111111 told lhllt the ooru of winninj:l the power b.llliottery are over 00 million to one ;md that the Florida 100tery odds arc over 30 million to one. Pretty big odds. bulthe odds of Thomas Jefferson and John Adams. both writers o( the Declaration. ""hith W,I$ executed on July 4, 1776. both later ix'«lminlt presidcnl$, ;irld both dying on thi:! S;UllC Jatc of the Declaration. July 4, 50 yt.'1'5 laler arc. l am told are 20 trillion to ont, Wh.,t unbcli..'Vable odds. TIlere nre lhrut who take this as chance or just an unwlI.lI occurrence. Based on the evidence, Perry Ilooper. Sr.. who also h.lppens to be chief justice of AI"bama. c.ln only conclude Ihis to be Divine Providence to a \\atthing world. I ~metimes lind mys.::lf concerned thai we do not (ully comprehend what those men launched in 1776. ellen though we lire recipi~nU of th,.t which was p;lsscd on to us. J read an article in theA/ban.V UIUI Rel'ietl' thall beliC\e makl:5 u~ all undcrslImd ourselves a lillie beUer. 'The article was written by Ii lady who is II justice o( the Ohio Supreme Court. JuatJo. ...,... lul'l. . . . ....tton ll'OS bom ill IJall.QkoJ.;, Thailallc/. to Ameri"m mi.~ioll/lrie.s. Shu wriles: "I grew III' /lllIhulIl /i,/el'isioll or 1II01 'ies; I neller saw H!I'I:V MasOIlI""1l /I casl!. "As a child, IIINllllo missiol/-Tlm /xHmling schools ill Soulh Viet Naill ulld Malaysia: Ihe flOlIV childrt!lIl111d Viel N(lm I}roresfers were mcrody pictures ill a lIIagazinc.

~AI Ilyi' ('(IIMe,"I. 1,'/11/1(, 10 tlmcrit'll alOlle. wilh $.ljoo, l!.\lX1Ctillg II 1/llld of rebelli()/I. prolesl. lind n(·go/illl'lp. Illy images from /II/! lIell'S lIIuyaz'-'ws I had reI/d. IlIslMd. I foulld a countrp fillL'il lI'illi prille. hope, l1/1d OJIIwrtunily. -//I'lItChCll America send ils yOlll1l to SOlllh Vi.'1 Naill /0 figh t for SOIl1L'()/1I! els(':~ frr'c(loIII, 10 dic 011 (ordglJ soil. I lI'epl when Ollr lIIissiol1{ll'i.,s. gil'illy llN!s of $acrifke to olhers. UWl' killeel byl'ie/ COII.I) just to maJO/' 11 stull'lI/('1I/. "We. us missionary childTi!ll, rlli/(w (lllaitlsilhe Americ{~n pre.t.( 'or Ifwir hursh Irt!alll/i'IIl of My l..ai. while 1lt!lJ{!r ri'lJ()r/ iny tile daily al rocities of 11111 Viel CUllY, of ollr lIillt/ge paslors hllllg upside dOIl'1I from Irees lIlIIl Ihllir guts clIl all/while IhlJir children walched. "' worluw 1II{1 w(lylhrough college (/nd lalll .~chool. III Ihe COlllllries of my yOl111!. workin!!'-'1 Ihp ricc'mlddies would hUl'1! be•..'I1 my maill omwrlul1i1y. "AmIJric/i is gellfm;w.l' IU ill' poor wilh granls IIml scholarships; my childhood friends ollly wlmt to co/lt'fllJ 11 their parel/ls wcr(l w~!al'hy. "I blaled lrails as the first woma/l ill law fimlS amI Oil the trial bellch: I slill walk fi/1(l paces behi/Ill my hl/Sballd, my Asiall CIIl/urc i/lbrCll. "My lIIoll/('r. whell "roJgl/{lIIl. had 10 lake (t !(!II-hollr Iraill rid(' 10 gel 10 a d(>elflll hospilalli l I1l1l1gko";: 1 Oll'(! my lif(l to lilli' trip, bl>eauSi! III'OS born of U/l emm-gency Cesarean seclioll birth. During "'y preglloncy, I could call my doclOr, "'II core of friends. at f!l'l!rll IlIIileh or imagilwli pmi1. ''Wllell my molher was illl1/ocal Thlli hospillli for a broken b(lck, there II.'(/re 110 /IIRI m(Khines. /10 mY/''Q{}rtlms. Families of 0111(11' palietl/S sll!;)/ 01/ Ille floors in Ihe halls or lIIukr Ihe beds of Iheir sick relulilW$. ·We debate issues of blSlIfllIIce and IIlIderiIlSUT/IIICI1. of greedy pku'lIliff Irial l/ll/'yers IN!/'SIlS 'fat cat' illSIIT1IIICIJ ..'0111p(lllies: ill Illy yOIlIh, 110 OIJ(! el1i!n hlld iI/SIIT/lIIe.'. "Il'i> dem(md the highest sll1l!dords of Ollr physic/mlS..flling allhe slightest {/P/~l1rI1I/Cc of tlwlpractice. There, I/O Olle slled doctors; I/O Olle lIIo/il1ger('d to

JANUMn

1QQ\l11 ~

recover wllfesem(!l/ benefits. No one receilJ(,,(/ work/ff(JIIS compensation for legilimale llljurie.~. ··Here. f}/'Odl/l;lliabillly suits shape prOt/IICI .~aflll.v, raise stOll(lards. shal'1U'11 consumer olllll1lion to qUltfity ..~ome limes fi!.wlting in outrageous pUllitive damages. Companies ill mally COlin' tries fuwe 110 gool but profit. 110 guide excopl greed. no recollrse for Ihose illjured bl/ their l1roduct. "A~ judges, IW slruggle wilh piles of ZOl1hl.q or{/i/1lIllCe,f. ePA restrictiollS. OSIIA regll/atiolls. bllilding codes. III olher coulllrir!.." fr1ctori(!.~ oml apartment.f col/apse from poor construction. "Ollr l)OOr lilJ(1 ill govenl/lu!IIt hO/lShlf/. llilving ollly a black alld white telCllisio71. a tell,y('(JN)ld rnr. food slumps: Iheir poor have only Ihe clolhes on their bocks. "' woldllhe press ill Ihis coulltry IIIlcover sC{IIukls, e.rpose lrafi. highlight gownmlt'1l1 weakness; ill m.1/ YOIlIh. Ihe IX/per Salltl 011(1/ prai.~es for c/}erY.Qollfmmllml acliOIl. "Here, Wf! pOllder where poiiea power (!lids allli constitutional rights begli,; in Olher lands, gOi:enmli?llls .~cotrs al such a dilemma while IIw prisoniff' Ilmguishes for yoofS. still 1/01 charged wilh a crime. "WI? hoffy debt/Ie iSSIl(lS ofjudicial restraint verSIlJ judicial aclillism: jud!Ji1s elsewh(!ru may only be pl/J1J)ets who rub/X!r-slamp govcmment actiollS, "/-Iere all Ilnpolmlar dL'Cision draws a harsh editorial; aTl 1II1/JOpul(lr decisiOll agaillSt (ert"in parties in Columbia can rcsult in (Ieath. ~M (/ Justice oftlla Ohio Supreme Court, I castlJOtt!S ill cases ofm..'e speech; I hate wh(lf they say. bullheir righlto soy il fn.'Cly in this CDlmlry rllminds IIW offhe fOrccll sHe/ICe olathe'S ill my youlh, My mel/lOry is villid of the /Juddhist monk. crimson robes llflame. sillin.1J into/us positiOlI, making hisJ)rotesl by his d£'()lh "/ ,'ast 'JOles ot UIOrk on e.ro/eric issues of /(IX (///(1 public ulifities. zolling regulatiQn.~ WId II!.tiilT btcludetl offanM's ofmurr/(1(; / go home amI thank C(}(I for the J)riIJilege oflivifl{J ill this great country. "

When I read things like this, I am reminded of lh~ words of Jeremiah Denton when he got off the plane in the good ole U.S.A., after having been ktpl in ~ box likt rJri~on for ~evc.ral years by the enemy in North Vietnllm. His words: "Cod Hleu Anu:ricll....

Thoma. Pape At the time of the signing of the Declaration. Thomll5 Payne wrote lhese words: "'1'lIe.wr (lfII thl! times tl/altry IIIL-'I' :~ souk The summcr !.oldiars multhe sunshille "atriot will. in this CfI:#S. ,~hrinJ.. from the S(J(IJiCfl of Ilis counlry: but he Ihal stands it /lOW, deserves the 101,,,, alld thanks of mall (lnd woman. Tymnny, like hell. is IlOt "(lsily col/Que·'(!(t yetllM! Ilil/Ie this consolation wilh us, th(lt the hankr the conflicl. the more glol'iQUS Iltc Iriullmh. Wha/,IX! obtain too Cheal). we es/(wm too light(v: ·Ii.~ dl!anll!S_~ only II/ut ,QilK!S I!very thin.Q its I/aille. J-/OOl/i!II !molt's how to Pllt (/ proper price U/)(}II its goods; and il would be stran{Jfl indeed. if so celestla! all arlicl~ os frootlom should 1101 be highly rated. •

.... Franklin Or. Ilenjamin Franklin. while departin$l lhe Constitutiorml Convention of 1781. was ~sked, "\I,.·cll doctor. what have we got? A republic or a democracy?" "A republk." the good doctor replied. "if you can keep it," I30th of these semin.. 1documents are nl!Ccssary (or 11 (ree. people-the Dedaration 01 Independence and the Constitution. As we think on what Justice Stratton had to say. we ftilly reali",cthe importance of freedom. the importance of necessity for a written constitulion. lhe necessity of the lt~g.'1 profession l(l maintain those liberties ;md the ncce$S1ly of !...wing to fight, did Jeremi"h Denton. from lime 10 time to protect those liberties. My (riend Bob In ~ram. a (ormer U. S. Harin\:. who is a well kl\Own and outstanding columnist, wrote this about two months ago in lhe MOlllgomery AlilJ(JrtisQr on the occasion of the death of C. C. "Jack" Owen. who served fo r years on lhe Public Sllrvice Com1l1iS5ion and whO W,IS my den friend. "Time nibbles away ,It r,mks of World War II veteran~ in 1)OlIties. "There were countless others after World War II. m:my o( them wilh distinguished combOlt records. who came home from what has been accurately called ·the last good war' and were successful in politics. "Now there ilre so fllw of them left. in ilnd out of office. ;u'ld wilh the de"th of Jilek Owtn there is one less.

,t'

"Oriee thtrt were ~co rcs of World War II veterans holding state office in Alabama. Today there are on ly three- House Spcilker Jimmy CJ<lfk of Eufaula. state I~ep. "etc Turnham of Auburn lind S\Jpreme Court Chief Justice Perry 1·looper, Sr. "Clark and Turnham arc retiring at the end of their presenl terms and then there will be just one." Conelu.lon His article reminds me that it was on Augusl13. 1943.lhe day I left Birmingham for the United Slates Marine Corps, that President Pranklin I~oosevell dedicaled the JcffcT$on "lcmorial and idlmlified him as Ihe "ajlo~tlc of freed()n1." Written on this mem()ri.. 1 are these word5: "For 1 have sworn on the alter of Cod eternlll h()stility "gainst aoery form of tyranny over the mind of man." All lawyers have a right to be proud 10 be lawyers and. also. be proud to have such an excellenl hcrita$le. Since our DeclMation and our written ConstitUlion. we have held Ihis country togelher under unbclievllble circumstances. Freedom IS nol perfect- law is not perfect, but freedom is someUling we musl constantly fight for and justice is something \\'e musl conslIlntJy strive (or under the law. There will always be weeds in the yard. We just I...we to dig them. I losl a lot of dear friends in World War II. just as J lost dear friend. in Ihe l{orean and Vietn,lm wars. It reminds me ,md you of the price thaI. many have l"lid for the fre~-doms thal y()u OInd I tlljoy. Preedom has never been free nor will it ever bt frtt. You in this room have a ~reat heritage from people like Thomas Jefferson and John Adami-outstandin!l lawyers. You and I are aoo\lt to lake a step into the 21st century. a new millennium. I am convinced thai the land of liberty.-America- must maintain its principles and be an example to the watching world. YQu elln be an out$t"nding example in preserving and pro· tecting our liberties by how you con· duct yourselves as lawyers. Never. never forget that character does COt/lit. The challenge is up to you. You c. m be only limited by your desire to do $load and to be a good lawyer. May God bless you ~nd yout journey in the legal profession. •

Alabama State Bar 1998 Fall Admittees Adkio•• Ilrandy An!! Alcorn . lJr.1llI Kay

Alien, Frede rick We'1dell AndreN. t:rk Chri$topher Aparicio, Ricardo Aml. ln d, Tara Jean Barr

Amngton, Andrew D~rre ll Artrip. Eric James I\l ch llOll, Jame~ Derek

Atkin l, Sarita Tyienne Atwood. ~lcli.ulI Ka.) AII, tln, Jeffrey Brian Axt man, Sanh l.ynne Ad.:Im Aye r•. HCJllt M lch~lI~ run. Thoma$ Joseph Jr Hallie. ~181thew John naker. SUMnn:.h Le!th Ulmr. Willl3m Cory Uamell·Jeffetlon. Renit .. t'ayt Hartee, Sidney Tr:lYiJ 811n , Mary ~:lIen lIaze mort, Jarrod Utaxton Rearden, Nohl1lda l'l~tcher Beaver. tock. Jeffrey Uhlm~n 811t, Keven Curtis Bennlldn, ~I arlcla DMitlle Benlon, RicM.rd 8MT)' 8el'llmln, And rew Dean 8frry, Edward JOitph Bllllng,ley, [)~I1~ A Helton Moore 811 ~H, Windy II Cockrell HI,lr, William Stuart Bll udea u, ~'r~ncob Michel 8lock, AIIdrew David 8lock. llebecC3 wmi~ms 1I0nn , Jason Jamu 60nl , ROXllnlll.l:1I l:loonl , Jeu Street KoUelll l, Jennife r Jo lIoykln, Scott ""hlty 6no. Ryan Gtoffrey Krookl. l.earnml 0 iii Hroob, Thylor I'atrick Krown, C.ltol Nccole Urown, Keith Adrian Krumlow. Jcffre~ Wayne IIl'11ner, ilhonda Denise Hurlrh. rt. JOKph ~;Ikins HU rTOugh•• Ooloru Campbell UUlrul , Grellory Pau C.ln, Christ{)pher Ltc

IIan.ol'l , AI~n Ross lIa rbi.on. Katherine Andtnon C.I\..:rt , 1imm)' Ray rho no, Charlts Hardy lIard ln, Peter Jllmcs l)ye, Chnlon ~1 ....'Orth HI ClR)'. Tury r.l ichllel 1I1.rrt'!10. KMhryn 1.cJ Cnm.ck, Hettie Jean l»olen, Jonathan Tobias lI u t , John Webb lIart!rofr, Jeffrey Jay Cnmlchae l. Thomas 1./11'00 Erwin , Charillon Mark Culer, Maxwell [)ouillas E!leUI , J(imbcrly Sue lIi rlley. EIi:e.,beth In ~" I1 _ CU'Y. William Julius I[ EI lts , IIrt n\ !>Iichae l lI. rUey. Cerald Wnd~ Jr IbtOe ld, I)ayid AndrfW Call.lda, Rdltcca Inu Ilyrd i::ttn. Ch ristopher Bdk Cigellkt. ll ryan Nell E,ln . I!aymond Timolhy lIavtrcrofl . Jdfrcy VtnlOn Eva nl , Matthew lawrence lIaytl. Donald !::ugene Jr Cigellb. Kathryn "'cCllln CllI'k, Brian Dayid I::~n.gt . Charles Ali lI u d, Jonathan lIyro1 fo'a lkncr, Ltigh Grace lI u d, Thomas RldUlld JI] CllI'k. Kevin ~:ullene f u ril, Ilugh ])oulIl/l$ Jr lI u Tl.tIl, James Abnrr III Clemmer. Michael J~y COII_. Jamu ~: r lc Fugliion. Iionty lienee IMml, Thra l.aine lI~ n drick , Jeulin l.amine ~:atman eachn n. James Christopher FtTg lllon. James Holt Fleldl, Jennifer Lynn Cole. Kenneth Ilrldlles Jr lIendrick, Hobert WaJne Comer. Jamu MlctUlel t'lynn. Patrick Smith IIcndrickio n. Holly Jran F,rd, lohn Douglas Ilen. ley, Michael Alan Condn.lamu Jeffrey t' TlI nklin, I'latlhew Thomu lIenlOn, Willard Il uichens Conna lly. Joel l)avidson Cood)', t:mily Michele FTlinki. John Richard Jr lIerring, Joe Evans Jt Coomn. Jllmes Joseph Flll nch. George Courtney lIu ler. Anna Kathryn 11000 Co uch. Steven Wmiam t'ulmer, Christopher Tracy II n ler. Jeffrcy Gr~nt II ldtje, Tasca Maria COli, Gregory Richard Fumil h, Tara I.YIlIl Crawford, HMlon Thomas George, Meli~ Chrb th\t 1-1 Itlgey, Todd Michael Crawford. Silas Jr Collon. Clnller I.orralne lillI, MaryAmmom Coil lon, l.arry Apall Jr Croft. Christopher Kyle II lnlon. Urian Robert Cl'lltehfield. William Todd Gonn lu , JacQuelyn AM IInd,u, Brooke I'arku Cunnlngl\a;m, RUSKII I'lcWllOrter IV Coodwln, James Alan 1I01l1wl)'. Eric Shane ClUlck. l~ichMd Anlhony Gorhl m, Julie Aim lIoll lon. Amy Stolarayk nagl \')', David Lynn GOl nf)', I'lIchnt l Con r~d lIoule, Mark Edward IIOWlrd, Nicholas Le{)n III I)anlel, Jeffrey Stunrt GTlIYU, Ann/l,Katherine lJave nport. Carohn~ Armstrong CTlIYtI.lrene MlcheUe N lIowland. Lori Lee Dlyb, Kathy Rawdlllg CTlIVU, John "III rick tludlo n. Margaret Kelley Dlyb. Kel1l llobilUOll Gray, John Philip tlu"hu . Donnie Clay Jr I)IV". Kdllin l..wn;mJ Gray, Kenneth t' rank Jr Hu"hf)'.lames Fletcher III " avb. Il~r\dal Kevin Crten. Hrendettc laurionc Ilrown lIu mp hrry. Mark Alarl DaWley, Mllrc c..'yrus Grte n·llarnett, Cheryl Deloi. Uunler, Gin~ l'ear$Ot\ Daw.on. Char lel Cook Jr GlYtr, Josellh Stott lIuliler, Mnry Scolt Deakle, John Mark Grtgory. Michael "I!tgd lIy11t. Clinton lIasseli Du kle. ~'arprd MoleHe Grt"ory, S:mul'lI Eubank Ingl'llm, Jerry DaN Dean, Brt l'llOt\ l.Ilwrwce Grill . 1'1Mthew WOImn Irby. Roberl 6rt nt De{jeurin. George Michael Jr Grlmu . Cil/Irits Todd lronl. Thmmy Leigh Oe{jeuri n, Vi rllinia Gladys I'atrick Grimmell, Cindy Sue J.ckton. Chdsty t..eillh Walktr Oerry, KIa$lIn dra l.ce Gillilan, Holltr Crant J. mu, C I~udine Rae l)I~o n . Iiallie SCOIt IIlM:knty. Jbmes Patrick J. mu, Wlliter Kendri~ k t)onahuc, Oavid Patrick lIahn, N~lIcy Clara Jander, l'13rkus Alexa1lder Ihle, lIradley Mitchel Jenke,lIu ber, Erlk~ l,mne DOTOugh. Li~ t ludson I)oru ll, Su~nnc Carol Ihll. Stephen l'Iamilton Jtnklili. The rw Henfe I>owdey. Carl King III Ih m, John Charln Juter. William Dall1u I)T1Ipcr, lOMthan Ltc Ihm mlck. Michael Alan Johnlon, An ne Rawlings Moody Ca in, t:llen Mary Mau)

Ouku , Ri chanl Scars Jr

C.. II, olo. R~rt Stephen

l)u nn n, William Casey

JA"UAIl~

'000

Alabama Slate Bar 1998 Fall Admltteel McGow in. Donald I~ ei ron Meln er ney, I{crt)' Pa!rk k MeWI!uA, Me glln l.ee McWhort er, David !~cilh

John ~o n . C~ry Ch~rles

John Jo n. Cregorl Allen Joh nson. Kill\b~tly Se~rt Johnson, LI~ Michtle Johnson, N~lh~tl Wlltrtn Johnson. Tonya C;liI Johnstoll, John Christollhn Johnston . Sha ron Andrew John _tone, Fr~ncis Inge Jonu. Clni re Coo k Tinney Jonn. N~ lth ew Boyd Keel. J~me! r.ll el'lIel

M~m l\ . StM I~y

K ~y, I3ri~tl C hrt ~toph~r

Kilborn . Bl!nj~mit1 Hcu!ti§ Jr Kilgore. Chris\itlJ Dione Kil gore. Ilichard Allen Jr Ki ng. James Will am Kirk, Brandy Mich el~ Clark Kl lor. HII~~1 The' u., Hunkin Kn (lw lton, Dom.1J [)uan~ II Kobl er. Ccorjlt l'onds Ku chnert. loel r.lt~h~d Lackey. Patricia Sue Lamberth, K elle~ Pirnie I.a mherth . Richard Edwin t..... gla... d, John Brian Langley, I::rlc Urandon lallier. Slcphunie Leillh Larklll, Iltnjamin ThomM Lawley, Ilugh CMrlOn l.eatherl. Jackie Pearl l.ee. Grellory Wayne tee, Robert loserh t.e~ . 'l'racie Breshun LhUIAn. Kri sty Lynn Lllln , Stacy Anne t.l tI}·d. SanIes B~rto III t.uekmdo, Mlc hu c Shllr'tlotl l.ynn. l ..ury Aller Jr Mau y. Marilyn Hilda Hopewell ManIlCO, I n.~ml l.ee Mann. Brilltl Dnniel Mapp. Cllyle Niccte ,'YIarjluon. Leijlh Ann Mar1in, J;ttncs O(lul/la$)r MBn~y, llalph I::dwMd lit Matl Aon, Ge rald Arthur Jr MaYI. ~l at)' ~;Ilz.abelh McCaIn , Jennifer liub}' MeDantel, Emily SCOIl Me1)OrI~ ld .

Jenni1er Elaine

Me(:hee, Venll$ Sharee

.'", ,,'hiil!,.

LnThsha Antoi rlctte t.elHtld Jr Mllu . Jonnth:m Eric MllI ~r. ChrisloJ'jher Hay Mllter. I)avid Ea rl Jr Millica n. Shannon l.eAn ne Minor. Anna llebecca Monda. Dan I'aut Mon tl!onlery. Connie Sue Moore, Jamie l.ee MOON, ShnrmOIl M~lthcw Moon:, Thom~& She~ltr Moo re, Thoma& Wil50n Jr MOil, James Wood50n Mou, Patricia June Mulllnl, l10berl Alberl Jr Mu."hy, M ich~e l Jo~eJlh Nand, James l'h!l!p II N~w.om , i'I~ltther Eli111beth N~w!ome . ilurtot' Wh~eler Ngu)'i:n , Manh lIunli Ntx, Sha Del NIM'. Glenn Carl~le Northru p. Ryan Thomas O'1)ell, t).wid Ilri.,n Orl ell~ . Juan Carlos ()u.'~ IU . Katherine Ldgh 1'!Th. Bfverly Diane l'RTkcr. George Hobert I'allenon, Paul Winton II 1'lI,I' ne, Blake 1\llIn I'. )'ton. DJtlH l.eil(h I'urc~ . Allyson Carole l' ettllU, l.Ioyd C h~nd l e r III l'cnOeld. Jetlni(er l..ee Renfro I'erkin s, Atfrtd fluey Jr I'elll •. I\imbcrly Illl.wnl.itltisey I'hllllp' , ~lichacl Scott I'hllllp', Ilobert Buchanan II l'hllllpA, Silellcer Antonio I'hilllt>" Will Crimes Sr 1 'llIm~ n . J~mcs IIr~dford Jr I'lolirr. Thomas O'Connor I'om~ ro)' , Jcffr~'Y Malthew l'oole. William l.uther Ch~rldler I'ope, C~ cilia Ann I'oreo. Geraldine Janel I'owfll, Daniel Chappell Mudow~ .

r"" AMxm",I"~jfrT

I'ritchd t, Stel)h~n Ni~ Jr I'roctor. Ilichard Derek I'rllill. I::ric l.Ioyd Quarle• . Tyrotlc Radlley. William Larkin IV Ran ab llrg·llruwn, Cynthia R eavt~, Samuel Timothy Redm ond. Jerry Danc~ Jr Reed. C lmrl~1 Wnll~~e Jr Retd. Nlchele ~:Iaine Reid. Kirkl~nil Ed ..... ~ril Rtu\'age, Todd Presion Re)'lloltll, ~l tst)' Claire lle~' oll Riel, Jann Alicia Jllckwll Rlckl , Jcnnifer Wi5c RlI ey. meha rd Jon R(lbbl n ~ . F:1I7.abeth EI~ing R (lb~rt A, ThomM Atkitl~n Jr Roblnell, Natthew Whitlle Robin lon. llon~ l~ Taylor Roblnlon. K~tl1wlh )crOtne Ron . AI)'5sa l.)'nn Wardrup Roun ..~ lIl e. Bradley ll00tlC Ro ..... elt, June Krislen Royal, Thtn\\r;l Roys ter, Brian Speegle RU i8cll, Brion I)ejotl Sinl an"in i. l.:ll! r~ Alison Sch l ~ nkcr, Jonathan Scoll Schurger. Eric [Javill S~lbe l . Anne ~' ari ~ Sheedy. Brell SCOtl S hlrtf . l~evin Thnnehitl Shook, Ch~dwlck I.est~r Shore • . bcksorl G rnh~m Jr Siglur. David Ar\drew Sigman, Adam J o~hlla Simi, Jam~s l'-larvin Slat e, Amy l.eAnn Siaullhter. Marjorie Padgett martt, Phitatlder Knox lit Smllh. Christopher Nathan Smtth, Janlll$ r.lIchaci S milh .l'~ull)oujlla! Jr Smith. 1'<lmn), l.oubc Smith, nri Ka)'e Illl)'u Smith T, r.tandi Norton Snyder, Reginald Lavon Sowell. Slcp hcn Liles S p~I "" Verne fi arminl(

Spencer. ~'rcd Jr Sb gl15, I(it'rlberl ~ Glct r.llnOf Stewart, J05~I'h ~dwMd Bisholl StCWil rt , Scott ~'or~ster StllWl rt·M lg~~. Canda~t

Iiurnd

Stllh. Jennifer Dawn Stoku. Thmm)' r.lc Clenllon Stover, Fallany Qlay Strelll(th. Br!~11 i'Jul StyrtA. Jeffery AII~t)

Sykn 1':IUI ~1~ tth\:w Talmadgc, JO~~J'jh Danl~1 Jr Temlll , Jamcs l'-lichad Terry, Angela f}ai~c J)awwn Tllt. Misty Carol TInker. Nikki Michelle TrQo ~dl le, Jerem)' Nelson Tucker, Jooph LU1her Tuft •. Cytllhln Ann ))el~ney Tuley. Jay Stewart Tuley. S~a rl cltc Moo re Turner. Brian l)or\itld Varller. Katht)'n I !ardwich Ve nUml l(lI~. Tiziana Naddalena Waller, ll~nJamin Earl r Bishop Waller, 'l)1t~ SherJ'l:1I Walsh, Stellhen Andrew Wallhall.l loward PhlllpJr Wud , Brandon Sroll Warneld. Alan ~lkhad Wu hbunl , !.aura C I'Mchmm1 Wayne, Desi ree Welborn We1:lb. Lind~ SU1",nne W~d ltW(Jrth , Phillip Cnrri~on Weil, Shci l~ Antl Weldon, Mkh~ellJavid Weldon. StCphCll Swll Weill . David Hobert Weill. Hcilli Anne Stark Wells, Jimmy Domld White. SUSlltl Ilrennnn White, WIII1:"l1 C~I~ln II Wilku , J~mcs Ste.rtrl WIIII ~ m s . Ar'tthon1 lUetl WiIIlamson.1'hensa Norris wml •. John Perry IV WI11011, Debra lJ!ack WlnteTi. Haymond I·toward WIAt, MlIrlha E W~ters Wootllre. t..1ne I·tl re~ Wootirofr. lohn"y Leon Wright. I~hlt:, Jon Yarbrollgh. Millon I::dward III YOUIl". John !)avid YOlm". Leilus Jackson Jr Zllonlz. li enry Phillip Zchrt . HIHh I.)'nn Hidgeway Zhnmf rt1l l ll, Joseph Pau l

Url.lrI n. 7llmrr WI9li). J<lIIU'~ fJ. 7lm!<'r (19U ). /.ou/u I 111111(" (/953) IInJ J,IIIh'SA.llmN',(/ij!i2) ,,,/mlll.,<,, fi,/hr' , IImnd~wlh<" !II!d gral/(Jful/U:'

ThlllfJl' "'001.5. (19911) omd J.N. IJmt>ks {/97/} udmill<'<' UIIJ IdlMr

'1<IIM 1:..,,/ Mill,,,, Jr. (19.'1/11, Ci1l(/1I1lagbV (1974). IImTV A'tlmf tAlk ' HUll). t...5/i<, Mill", Kfusfug (/992), {)a"h-I H. Nlal lrlg (III!!!). mil 1/""'1/ Arthur /,.;s{i.· (1.'M"1 "ifill/II.:.!. mo/lwr.llfdrlJlul/"" , sitler, /Jrolhn ·iu-I" w, lI"d ,mel,

e/"in' nlllN'lIJ,mrJ (f!}!JIII. Mn A. 71-"''''/1 (1.9141 mId )alm (:/11111

,111..h<l.'1 tI. I/ms/"II (1.9911) mId QII/IJ/(m H. 1I00-.I (J9.~b'J

(m1)

adm/lit'll uru/ (u/her-fllluu'

t...." Mumm:o f/99H) ami /)rl)Qroh Sm.k" MOlhl.K'll (191U) mlmillN' ullil lI.'i4'

J<l$QI1

.l(lm/II.", (allH-r 11m! unfl,

J~rr/lM

II illhml c;, lt1!il.·, II (I.9 M/llnd II Mt,'IJ96SI

Ix",ld /I.~,drickJlm (I.m ;)

<1(/111111•." un" ruth.,/,

",lmiIM' ""d {i/III.:r

/1011/11 t.~,dridaot, (l998) <11111 R,

.~I,u/llmw '),1It (JWM/ und (I',I/WIII.I,m fu,1g (1!J9Ii) ,JdmiJl'~' mI(l Ji.sl,·r

""trod /J &:cmolY fl M II) </ud Nirhd~1 f~ HoMrls (1.077) <IIlm///('O' <111,/ emltill

Fa.nily

I1M,I !rbv (1998). Hml/llrbv (J992) and Rlisstlllrb/l (1968) al1l11ll11\'. broth," fila falher

Valllrf" Klwr (1991) amI Thl'rrsa Kisor (J99/j) '''mght.路, ami l1uIIIII/<,<,

}ulil' Gorhum (1998) mlllOm,lcs

IV. (!o,hlll/! (1968) Mmill"" and falhrr

20 JANUARy . OOI>

5U;;<lIIIIII !I'rbtl (/.9.'111), J,,""'t \I~'bb ( J9.~6) "nd ""'IlI/rlck S. I\',>bb (/$8;) admill,'!', f"lIwr uII/1 bwOwr

Atrllll路Kath,路ri,.,. Grrll" ~ (191M). 1~lIri(k 1l1)U'Un/ Gro,"s, Jr. (19n; <Iud /}(muld MI1U~1I }"mft (1971) /JIJmlll,~'. /ulh,>ruIUJ mrd~

H. /:'du'Ilrrl MUSJ/!/I. 11/ (199/J) 11/11/ H. h,'du'llrri MaSUIl. Jr. (1.972) Mill/liN IIl1d 1i.1l1m,

1I1'1lr1l P. Zlllanl: (1998) (lilt! Rlcharr/ t-. /{l11<'.f (1,99(1) uum;/I1oc and ~IJ/II

CII</ffe5 C. Dawson, Jr. (1998). GIll/drs C. /lau'.'Oll, .'if, mil,!}) (llld Judg~

fronds,t. 1.0119. Sr, (1985) <J(fmill,~',

fath..,.uUlf cousl"

1. ,11,,,,,, PuoIQ (I!/9.YI umJ HrX>t71 l'oo/il (I993)

J~""v

/JIM! Au.srin (l99.~) "m! NrllrnkJ MQf(I{»! Au.sl", (1996)

IA!oIJun/ f). /JrookJ. 11/ (19.'IS). LrolmnJ D. IJrooItJ. Jt. (198J). JII~ HoM.j ,I. Sapp (1,1149). Juni! Supp Ilrnob (I!Mfi), IWIwrf A. Supp, Jr. (;982), und

uJmll/<\I a1ll/ brolher

"dmillf'llllllll u~f~

/oil" M~rA' Sol'll (19111) v(/"'II/..... fa/hr., f/'lIIulfalhl!Y', m(}lhi!r. utili ,,"d,'1

Amlll•. SI"I, (19911). RI/!p/! E_ Sl(/I~ (19·m. &(h 5I"(t'/'Ufl (I!#ISI, tv"lhia 51,,1<, Cook (1987), <IIu! Shdl, SI"lr Il a(rn (I!JIJ!J) a(/lI/i/lIV, (alher u,1II S/S/ltfl

011,,'11

t'/!.~I

IklltJ (1998) UIJIJ Jalm (1963) uJ,mll<'fl a".1 (,,1M' Hurtkll~ Hul~l

I,..,.,~ /If

C' m'f!s (1998/ a1ll/ JoII" Gru,-a (19911) /i!lfll Imd hu&ixJnd Cf)-admi//J'(Il

lIugh () Flmis, Jf. (19981 wuJ lIugh () f,,"is (1955) ell",;/("" (/1111 (,,/h''-7

MII/t";

(""IMa fl T!Jfls (1998) "ud HobI!Y'I A 7LfI~ (1997)

t:mi/JI M Cood~ (/998/. Jllaflll thallI'S S. Coodl mr,S) wkl Rkhard /I, Narb (/~91) uJmill<'i!. ("llU'r (lud fj",I{'ft'

wmlllN ,mJ hu.sixJnd

NlclNNllI.,,/ 1998} ""d

IIIp;n;" H. 1/01'1'.-7 (l9!I9)

uJmlltN ana Jis/,',

J4NU,o."y "100 I "

Nlllall

edlL~lnJ

l'a,brtm/lh, III

(J9!J8/ wtd MlllflII fdl,~,rd !'ar()l'Qugh, Jr. (1981) (/lh"I/I•.., "'1(1 (alII.,

}aml'S

IIlIl/h,'V, III (I.99/j1 1/,,,1

J(//m~'~:

I/l1l/h"l/. J~ (1970) mlmllli!1luM (aIM,

Lawyers fa the

Sooll J.'Qresl"f $rCII'lJrl (1998) all<l Jill/II" {kmallf I¥. 81<',nl" (1971) ai/mill.", IJnd f.,lhur

{"Jimi,·, C1wllp'-/1 PrJI,,·/1 (J9!18) <llId

(;f.~11! I'DINII (J966i

adm/lie.! aM foth~r

MJfll A'Ii:a/J<llh Naill (199iJ) and J~ph /J. NUllS (1978) ililmllll'it </IlIllil/IU',

Mal/11m' IV. G111/ (1998) </Iull.ll11'J1 R. Grill ({,m)

mimi/ll';' ","1 ruth.."

wlgh

OrI"~IS

(1998) uud 1'1",1

IIIlmil/<'f! IItld Mhe

J(Jhll \1~""'iI' 111111 (1.9'<18) mtd Jalll~s

/;',lIar/, {/I (l9J6) adm/liN lI/li/ b'O/hcf

I,, C/II/lflll IllJu~III/~Je (1998) aud

fJ.wfd 1: "Vd,'. Jr. (/,967) admill" 111111 "tlhrr

22 JAIIUARY' ''o ll

GIl/dAwson I/WII~r (1998) wrd r;il!f1<'f 7bmlill (/99 J) 11I1",i/I~~ Ilnd motlwr

0I1'/!II& (J9fj.9)

'.,',

l -

Jo:8:j

SIIl~'1 fkKm,' (/9.9~') 11m! RfJIxor/II'. /!ooI"" Jr, (1,9651

fhlllc/s II/IN jolmSIQ1If1(1f}98) (md

IId",ilh'<! and 1<11","

(ldmill.'~

/)011/11111 IlIiI'l Jwmsl(l1l<l (/906) ",,,1 (r.lh~r

IJlUtlOlt l.tIa.,.,.,t('<' Ik~" (199H), llou."rd J.: 1/rINU, 11/ (1914) oM JudtN

liouvrd f; 1I",,,u (l9i1) "dmill" " gnmJfolh,lrm-/<ltC ami falhtr-In·/.tw

Jrnwlmm

r./~A·n

(19M) aud

0, 1I0I1('II(1936} "Jmill"" au" gruu.ffal't"

Ju~J"m,'S

J:d",11t l.;Jmlll'rUt (l99l1), 1(('11"11 Lumlln'lh 11998} uud }lId"" Hili Th(}mpMlJt husbond und Ii'll.. ctNltlmllf1"'5 and foJlhu-/u/oJU'lllqiloJlm'r

f'mkrld I1 l7td.'11 A/lm (199/1)

1/olllml I! 11,,1I1w1l, Jr.

amI J.""'II \I' Ail"!t (19611) admill.... ami folllm

lIowarrJ I' Wallhall, Sr. (1!M7) mlmll/... , (/lid foJllwr

(199.~)

Imd

PiJrrk,oJ S. Ludt~/I '1998) uuJ

ea", LV, IAcA'lI (1M/I) udmflll'li uml ~rolh.-r

Initial Domestic Corporation Franchise Tax Returns and Permit Application Nawly organizad domestic corporations ara required to fila their initial domestic corpOration franchisa ta~ return and permit application with the Alabama Department 01 Ravenua and relT'it tha tullS and laes due Within tan days of incorporation. The allactiva date 01 incorporation IS the data that the aniclas 01 ~corporation are liled with the judge of probate, Corporations that do not file their reMn afld make payment within tefl days of Ifleorporalion are subject 10 penslties afld interest. Additionally. II corporation that docs not comply aftar 180 days 01incorporation may be certified for involuntary dissolution. Tho initial re turn and PllrmitllppliclItions ere availabln at !ha offic9 01 each judga of probete, the Revenuc Dopartment's TaMpoyer Snrvlce centers and on tho dopartmont's Web site, \lVlMV.Mor.SII/(().(Ii.lIs. For ndditionnl information or nssistence, con· lact the Alabama Dep8l1ment of Revonue, Individual and Corporete Tax Oivision, Domestic FranchislI Ta~ Soclion, (334) 353-7923.

JANUAlil •• 0 . . , n

ABOUT MEMBERS, AMONG FIRMS

Due (0 lhe huge increase in notices for MAhout Members. Among Finns," The Alabama 1A/lL'yer will no longer publish address changes (or firms or individuld practices. It wifl ron/hili/} to publish announcements of Ihe (onnation of new firms or the opening of solo Pl1lcticC$. as well as the addition of new ilS$OCiate5 or p.lrtners. Plc(l.S£ continue 10 $end in ildd rtS.~ changC$ lo lhe membership dep.'rlm ~nt of lhe Ahlb:lmn St.1te Bnr.

Tll m~ri ll

S, Oriskill annoullces the

opening of ~r office III 246 South 8th

Sireet. GlldMlcn. 3590 I, TIle muiling

IKidress is P.O, Box 8505, 35902. Phone (256) 546-6557. Jllm e.~

N. Thullms ImllounCts the

opening of his office III 405 Elm Street.

1'.0 . Box 97<1, Troy, 36081. Phone (33 <1 ) 566-2 18 1. (:, 1'1I1I ... rsoll

K ... nl,... y unllOUllces the

uptning of his office lit 2323 2nd

Avenue, Nurth, Suite 200. Oinninghnm, 35203-3758.

About Me mber . Jilmes lJurry Ahsw n IUHlounces Ihe

opening of his ollice ut Suite 2B.

1I II nt~~ille,

Square.

Eu~tslde

35801 . Phone (256)

534· 3336.

lll-:IlInl. 1II-:\T\1. II \I.I'n \!TICI' [WEInS

_--....

-..., . ...

• 0 ........ _

• nEE: • FJtI!Ii: • FREE:

(UIO,~

...

MedlClITe1l1ll Ilrevlew

and \\'rillen Findings Conference and Rep~ To rOllt office Wrillen Meports If Case lI a~ No Merit

STAT " .. noun's AVAIU.Bl.Ill

We have successfllily completed over 10,000 cases for 3,000(+) law firms. Our board certified experts work with )'ou to maximize reco\'ery. Healch Care Auditors, Inc. IH17 rt.thtrSoullll Drl""

Bid" II. SIIhe 190

t lt.,.....t" .FIc><'Id• .u761·UH

Toll free 1-877·390·IICAJ TdcphOllt (717) S79,IWS4 TclKopltt (717) S7HUl ..'~ .... ,It............. 2.

JANUARY ' ''''0

M,.,... ,.u•.

l'lil rick M, La mur ImllU\l ncc-~ the fur· llIalion of l'nlrick ~ 1. Lllnmr. L.L.C. Ills office I.~ locll\ed ut IheCivic Phv.a, Sulle 3 11 .307 ClintOn AVCOlM:, Wt:.~I . I-Iuntsville, 3580 1. Plhlrte (256) 534-4355.

John 11. lIarper, deputy reg ional coun· sel. Southeast negior. Internal nevenue Setvice, /l1'1I'1()unce~ !'is retirement after 29 years or government practice

Among Firms Russelll)rllke, Jot n. Whlllle),• .Ir., Glen M, Connor, Al\d l~", C. Allen, !\'1ull l'(!e n K , IIel'g. l'cler II . Burke, Chll rlene 1'. ·ullen. W, Todd I-Iun·... y. :md Rlclm rd P. Ruun> nnllounec Ihl' for· mntion of Wtmtley Orukc, L,L,C. Offiees nre locillcd nl I Il)() flinunciul Center, 505 20th Street, NOl'th, l1inninghulll. 3~203--460 I. Phone (205) 328·9576, 1.10),11, Schreiber & Gm),. P.C. anlll}UllCCS liult E.l1rltton MonrilC. Knlh)' R. OU\'\s, lh:idi ShIrk Wells and Mlchllel J, Clemmer have btoon'le Il~;mc.~. OffICeS fII't. loc.... lOO mTwo ~rimel\.'1' rar~. South. Suile 100. Bimtingh:ull, 35243, Phone (2005) 967-8822

Olllllrtl, G(M)1.ce & King announees Ihat All wt n K lIorn. IV hllsjoincd the firm as lin associme. Offices are IOCllIed al 20 15 2nd Avenue. North, 1lIc Ikrry

Iluildlng, 4,h Floor, Birm ingham, 35203. Phone (205) 25 1·2823, l>Omlnlck. Flelcher. \'elldlng, Wood & U oyd, 1'.1\, IUlilOUnccS ,I1Ot Lisn lIutison l)orough has become lin u_~soci ·

me. Olliccs :Ire tocutcd at 2121 lI ighl:lIld Avenue, South. B irmingham. 35205, Phone (20~) 939·0033. Cnbun ls~, JUIIUSIOII. Gu rdne l·. IllilUos & O'NeIll nnnou n~es Ihm Stephen A. Wnlsh ond 1\10l'k E. Iiollse hll ve become n~~ocl:ll e~ . Officc~ arc locnted 01 Pur~ Plact Towcr, 2001 Purk t'lucc, Norl h, Suite 700. B irmln~hllm, 35203. Phone (205) 7 16-5200.

Ku ufnmn & RUlhfedcr, I),C. nnnounces tl10t Eric Llo)'d I'rullt ltll.S become nn Ilssocime. Oflicc:..~ Ilrc localed In Ihe Ahnnl Bnnk Center, 2740 Zdd::J Rood. 3«1 noor. M OlIIgomcry, 36 106. I)hone (334) 244· 111 1. Schoe!. Ogle. Lilt'll & Upshu \\,. L.. I,, " , nnnounces Ihm Junn J , Rice hilS bc:c;Qme :111 n\~inll.· . om(X'~ ure IOClUed nt 600 Fiuuncial ·cnler. 505 Nonh 201h SCreel, Birminghlllll, 35203, Phone (205) 25 17000. Slnl.'/.. Clinlllhdl. J)uke & Tllylor 1lll110UI1Ces that KUl llI'yn W. I'clcnien lind Mlchncl l), A l1dCI'!ion h:.vc become l1~soci:lt c~ , Offices Me locmcd :11 37 63 pro rcs~lonnl PlU'kWl.Y, Mobile, 36609. Phone (334) 344·7241. Uuy f: Kin\.:, .Ir.. Nllncy C. I)rllllllllolld and Mnrjori(' 0, Dubbs un nouncc the form at ion of Klnl;. 1)1'11111111011(/ & I)lIbhs. I'.C. Officcs Ilre loc~tcd lit 100 Centerview Drive. Suite. 180, Olrminghmll. 35216, Phone (205) 824·7882,

Ilu bburd, Snlilh, Mdl"l"IIin, Urnkf-ncld & ShuUuck. I'.C. announces Ihut lIerherl E, II ntwdcr hll..~ joined II~ II parmer. Offices lire locoted lit 808 Lurl« n W:.llul.'1: OOtlIC\'IU'd, North, P,O,

Box 2427. Tu SC4Ioo~, 15403-2427. 345-6789. IInrrls. Cleckler, Kogers. Ilollls & lIumgur ne r. P.C. Dnnounccs II nllillC chllilge 10 IInn is.. Cleckler, Iiollis & lIumgn rnc r, I'.C. Officcs IIrc locmed III 2007 3rd Avcn ue North . Uirmins hnm . 3~203·334 7. Phooe (20~) 328-2366.

3540 I. 11lt llIuili ng lI,ldre.~s is 1'.0 . Oox 2155. TIlscliloosu. 35403. PhOlle (205) 758·2.58.5. I'ltlmlln. Books. Dil lion & 1I0Ub . P.C. announces thaI Siel e Cuuch hn~ joined the linn. OffiCC5 nre lOCated nt 11 00 "!Irk Place Tow(r. Birmi nghnm. 3.5203. Phone (205) 322-8880.

UI'U"'II, Iludllm s, P.C, IInnoun(;c.~ tl ml M isty Cill'U11111 hns beC()mc lin 1I~:iOC i me. Omces lire 100aloo aI 1495 Univcl'l>ily

MOrl1s.lhIYIt('S, Inll rllm & 1-lonJsby announc:es Ihm Nuncy L. £nd y lul.~ become lIuIl$SOCi:'le. Officc.~ ure located III

Pho ne (205)

Rou lcvard . I~O. Oox 16818. Mobi lc. 366 16-0818. IlJIQIIC (334) 344-7744. ~~

J{n~e ll , Cook, Sled ge. Om-Is, C"rmll ,fones, I'.A . lllliiounces II f1Iune chnnsc

13 I M:lin Street. Alexunder City. 35010. The m:lilina nddre.~s is P.O. Box 1660. 350 11 - 1660. Phonc (256) 329-2000. Cllslmll no. Kl't'llcr. Roix!rls & Kl mberlcy. P.C. Ullllou neCi thot Jun od II rll:<lOII 1)rI'l.eJlIore has beeome lUI ".bOdute. Offices urc loc~ lcd at 153 S. Ninth Street, Gausden, 3~90 I. Phone (256) :'i 43-0400. UrutJl\,y Arli ne Rose & While. L.I ••I'. announces Ihal I'uul M. SikeS joincd the

to Rosen, CClOk, Sledge. DUI'ls. Cnrrull & Cade, I).A. Office~ arc localed m 2117 Ri ver Ro., d. l'uscl l()(h~, 3540 I. Phouc (205) 344-5000. 1.lull, I)llll, MUllhi: \\'s & Nllv uk, I'. A. 1I1l1l0UneC$ tlwt ElnU )' M. Cood y, Urundy A. Adli lns and Cto~c R.

I'nrkc r h:lVc become assod lll e~. Officcs art: IOCllled ~t 2000 l nlel'l>tute I)urk Drh~. Suilc 204. M 0ll1 g0IllCI'y, 36 109. The m!liling I1ddrcss i~ P.D. Box 2 148. 36102. I'honc (334) 387-7680. HennCI ~~ ncuncl, P.LJ ..C. unnounces Ihal l)o nald L IlcrmuII. Jr. hilS joined the lirm. Officcs urc tocllled m 1019 Ninelecnlh Streel. N. W. Suil e 500. Wnshington, I).C" 20036. Phone (202) ~30-9800.

I.dllllim . Slq:ul ~~ l'uYlle, I'.C.

Ihm JIIUlCS S. Robinson has becomc an lI~socl r.te. Office.~ lire locllled III 600 Norlll 20111Street. Suite 400. Birmingllam. 35203. Phone (205) 25 1· u n nounc~

' 900. CII"IIII",II, \\'1I1 ~ r &: McCall um, LL.C. linn{Ju tlCe.~ t h~ l 1>:lI'ld M. Loper hM be(:ome n I);Ir1u cr, J nnel K. "HI·tlcll. formerly u~~odlil ed with Aldridge & Associmes has Jx:t.'\lmc (Jf I·(JUI/Se!. lind R, Brcnt Irby has become an ussoci:llc. Olhe r members Ilrt Andrew 1'. Cnmp l",lI, Jonlllhlln II. WlIlIl'r. Chllrles 1\ , McCull um, III, Mu r t/ul RI'I" 'cs Cook, lind 1-:111,1I1I( lh 1.III rl:(er I\u t huny. Ofticcs lire locmcd 1Il 2000A SoulhBridge I)arkwuy. Suile 330. l}irminghllrl1. 35209. l>hone (205) 803-005 1. I)ollnld, RIWdIlU, OUllllid & TiplOtI announces Ihm ,fohn R. Fr n "k.~ • •l r. hilS become un :I~~ocime. o mcl's ure locmcd III the AmSOllih IJlJilding, Ninth nClOr. 2330 Univcrsity 1J001levard. TUSCllluosli.

T he most dificult prohlems requu:e ti,e n1.oS'~

ilUlo vaove responses. \Il,.nd.......b. . "f ......,.,,"

.' MISsISS]!>1'1 VALU.'Y Tilti! ' " . ' ' INSUKANO: COMPANY

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firm liS liB IlSsoclute. OfficC-' /llt lOCAted 2001 Purk PllICe, Suile 1400, Birminghllm, 35203·2736, Phone (205) 52 1·8000. K~IIY, Ntttlt~, Stogl n & 1II'IIIIIIcy, P.C, an nounces thlll IIrnlllc), M. I-Itlle IIIIS become iln ilSsoci(lle. Offices orc locllted HI 2728 8th Sireel, TU,'iCo loosn, 35401. Phone (205) 758·5591. I'otts & YOlIlIg, L.I... I'. IInnouoce5 Ihm Dchrll Hend r), Coble has become It pnrlner, Offices nrc locmed 01 107 E. Colle~e Strce l, Florence. 35630. I'hollt: (256) 76<1·7 142. Dn Yld It Hil ker lmd J. Brooke J ohnstnn • .Jr. annOunce the opening of their offices nl One Independc:lK:c PloUi, Suite 322, Ilirminghnm. 35209. Phone (205) 263-9050. :II

!'I'\lCII & Wlildl'IIII, I... L.C, un nounces Ihnt Tel'! Hnyes Smith hilS become un Its'iOClmc wilh the fi rm. A new offi~ is located 111 12 1 Piedmont l'lighwll)', Sui te

E, Centre, Gadsdcn. 35960. The mniling address is P,O. n Oli &92, Phone (256) 927-3904. Other offices ore locmed III 11 I S. Fourth Streel, 3590 1. Pholte (256) 546·9666. ,Iunccky. Ne well, I>olls, Wilson, Smith & Mnsh:rscm nnnounces Ihm Hnrry V. SlllItrwhilll hUjoined the nml. Offices nre loctled III the AmSOUlh Bank Building, 107 Suint Francis Streel. Suite 3300, Mobile, J6602. Phone (334) 432-8786, nllteh & Ulnl:llllrlI unnOUllces the IIddi tion of 1 t new 1I1soeimeJ, Wlll hl nJ S. Hlulr, Grcgor), II, lIulrus, J. Chrl~ Cnch n m, IJInghnm O. Edwnrds, T hcrCSIl R, Jenkins, Eric II. Lllnr.:lcy, J , T ho nlllS Longi no, IV, J ennlrer R. McCain, J, Ueth MtSCIII'clll, Shunnoll L. Powell, and WCli dy A . ZIIT'l.Llu r. Ilred ":um~ , II. Juu;lIn IlclininAtoll, 111 and Roberti .. Loh.ln, 1I1 have been added liS of r:OIl/ISt:/. Offices lire localed

in Birlllinllhnm, HunstYilk . Montgomery lind Wll.~hinglon . D.C. Cnlld l, Howll rd , KlUlhe & Cobbs, I'.A. 1lllil0Ulices the ehonge of its nllme 10 CUIJeli

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Fl'llnklln W, Corde!')' ar1nounces lhat he has closed his private practice and is now servin" il$ an assistan t district att orne), (or the 121h Judicial Circuit (Elmore, Autauga and Chilton counliul. Ilcn dcuon & Outler announces thllt Lany O. Ih lllel, Jr, has joined the fi rm. The add re.u is 200 W. Court Square,

Suite 972, Buntsyille 35801. Phone (256) 536-4457. Otis, Moore & JordUIi an nouncc.~ Ihlll ,/lmld Eric COllie has become oll ll.'.wciute. Offices nrc tocn!cd ut 40 1 Eyergreen Ayellue, P.O. I}o~ 467. Brew!On. 36427, I'hone (334) 867-7724. •

l!Iow c:lo we in~'pr.o~e the bn_ a ge of the legal pr.ofession today?

Our answer is ' (j)oe la~er at atilme." And YOU can do )-'Our part by having the Alabama Stale Bar'. award-winning \lideo pre,entation "To Sel'\le The Public" shown In yOur community!

"I didn't rC<llizc how m.an)' pro~rams you lulU to help the public." "I-low C<ln our school partidp.lte in your partnership pro~ ram?"

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lots of helpful information," -The public's comments 011 the lIideo

Winner o( ~ 1997 Public I{cinliol'l.!i Council of Alabama tolerit Award and a prestigious 1998 TELLY aWilrd for video production, "'To ~rve The Public" is designed (or uS(: in speaking to civic and communit)' groups, includi ng !.Chools. Every local oor associ.1tion in the slate has received a free copy of the video presentation and 300 brochures. Contact your 10<:111 bar lWOCi..tion president or call the ASBat (334) 269· 1515 for additional copitS or infonnlltion. This complete public service video prtSCnt.1tion inc1udCll: thc eight-minute video: a handbook of sJ)'.'CCh points: and infomliltionaJ brochures for the audience. (NOTE: 1V and r.adio announcements have been excerpted from the video and are now being shown lICl'O$5 the stat look and listen for them in )'Our cOmmunity and encourage your loc.'ll stlltions to air them!)

What Do •• Th. Pre.entatlon Do? I) It highlights public service programs and resources of the stalc baT, focusing On the public as lhe true benefi· ciary of our lega l system:

2) It (caturu re,,1 Alabama la~rs involved in their communities presentjn~ a positive mCSSllA:e about the legal llrofe~s i oll ill Alabitm8: and 3) It mllke! it c"sy (or individual attor-

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Why I. It Important For You To Do Your Part? The key 10 the succus of the prOA:ram lies with each individual har member. Only if the video is seen by thc public, will its positive image mCU<lge be spread! Please complete and return this form to: Communications. Alabam. State Bar, P,O, Box 671 . Monlgomery. AL 36101 or fi x 1110 (334) 26'·6310.

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ulXllE [P(]JJ@[LO~ YES. I volunteer to present or to help schedule a presentation of "TO SEINE THE PUB LIC" to groups in my area. Contact me to make arrangements! NAME _ _ _ _ _ _ _ _ __ BAR ASSOCIATION PHONEORE-MAll _ _ _ _ _ _ __

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•• .a summary of b.ulc informatioll on common legal questions .md procedures for Ille gener.ll public

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BUILDING ALABAMA's COURTHOUSES By Samuel A. Humore, Jr.

The British Isle

nce again. a vacation trip caused a minor delay fo r courthouse article author Sam Itumore'~ next 'installment on Alabama courthouses. This time, th'e destination was to the ilncestral

home of American jurisprudence ami the

Common Law-the British Isles. Sam and Pat spent two weeks in Engl.lOd lind Ireland. One highlight wa~ staying with the family of an old hi"h school cI,u5ma l~ who is the military anilch~ to Iht Americ!lr\ Ilrllba1:1ador. Another

hi,;hlighl wa~ seeing an old college classmate who is the Deputy Chief of Mission at the American emba$$}' il'l 1.o11dol'l.

The vacation included visits to castles. palace5. cathedrals. abbeys. museums. theatres. ilnd the Tower of London. Particularly interestinll W~5 the morning spent in Birmingham. England. the namelake city of Birmingham. Alilbal1la. Of cour~. Sam and Pill 5.lW the IloYill Courts of Justice and photographed numerous courthouses.

11<Âť11"''1' from IYnll/l!/JiIom, 1)lfJillllll

The reAular featur e "Building Alabama's will continue lnlhe next issue of The

COurlhouse~"

Alabama Lawyer.

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OPINIONS OF THE GENERAL COUNSEL 11y J. Ail/holly McLnin. general counsel

Contingency Fee Contract in Collection of Child Support Arrearage Cases Impermissible Absent Extraordinary Circumstances Qu •• tlon:

In recent weeks, the Office of Ceneral Counsel has received numerous opinion inquiries concerning two growing aTtn! of ethical concern fo r the practitioner: coliectiQn of child support amarage and third.party audits of lawyer billings. The Disciplinary Commission has recently rendered formal opinions deal· ing with these two areas of practice. In lin dfort to keep the members of the Alabama Stale IJar informed as to the position of the Commission on Ihcsc i$$uu, both formal opinions are repro. duted in this i55UC of The Alabama lAwver,

In 1991, lhe Disciplinary Co01mi55ioo of the Alabilmil State !lar issued formal opinion I~O-9 1 -05 wf'lich held thai tin allorney may enter inlo II cont ingency fee agreement to collect child $UPI>ort ~rrcar~ge where the clientls unable to pay a reasonable attomey's fee on " non·contingent bash. Since the issuance of this forma l opinion. there have been t....,o significant developments which are materiallCl the conclusions reached therein. ~·ir5t. Alabama appel· late court.s have helc in a num~r of recent child support cases that the money due for support belongs to the child. I\()I the custodial parent. Second. there have been federally mandated changes in child support proceedings which require the Department of li uman l~e50urces to provide collection services to any indiVidual regardless of his or her economicslatu5 or ability 10 pay. The question presenled is whelher, in light of these developments, HO·9 1· 05 continues to accurately reneel Ihe IlOsition of the [)i~(irl i n~ry C(lmmiuiOll of Ihe Alabama St'lte lJar with reg~rd to the collectiOl\ of child support arrclIrage on & contingency fee basis. Answer.

In view of chanse! in lhe responsibili. ties of the Department of Human Itesources (or lhe collection of back child support. the I)isciplinary Commi»ion has difficulty envisioning any circumstance under which a con· tingency fee contract would be in the be~t inlCte~1 of the mild. Ilowtver, the Commiuion does not. at this lime. con· clusively prohibit su ~h contracu out of

concern that unforeseen circumstances could resuilin a situation where a con· tingency fee contract is the only me:m~ avail(1ble to the child to colieci lXlst due child Stlpport and would. therefore, De in the child '~ best h\terC5t. DI.cusslon: I~ule

I.S(d) of the I{ules o( Professional Conduct of the Alabama State Bar prohibiu contingency fees in a.ny "domestic relations m.'lIer.~ The rationale behind this prohibilion is a public policy con· cern that a lawyer·client fei: arrangement should nol discourage reconciliation betwi!en the parties. Obviwsly. this .... Uon<1le has limited applicability in child support arrearage c.\SeS. and mo51 statu allow allorneys to collect child support arrearagt on a contingency fee basis where the right for child support h.,s already been judicially established lind the sole purpose of the representa· tion is to collect past due payments. I iowever, these states .. II impost conditi0115 upon the use of contingency fees in arrearage casts similar to the conditions Imposed by the Digciplimll), Commiuion in nO·!)I·OS. The concluding parllgrllph of 1{D·9l· OS provides as (ollows: "For thtst reasons. it is our view that it would nol be a violation or nule I.S(d) to charge a contingent fee in /I case involvinscollection of arrellrages in unpaid child support. subject to the following conditions: (1) that the fee is fair and reasonable: (2) that the client is indigent and no alternative fee arrangement is practical. and

(3) there are 00 means 1)\1aHabie to the client (similar to those menlionrd in YOUT question) to collect the .mearage." While nO-9t-OS continues to accuTlllely renect. in $tlbstance, the poSiti()n of the Di~c!plinary Commission, the Commission i~ of the opinion that. in light of the changes In !)I-JR's mandate and responsibilities, rurther rtslrictions on the use or such cont racts WQ\lld appear 10 be apPlopriale. It is, therefore. the opi nion of the Disclplln:l1j1 Commission that an attorney may enter inlo a conlingency fee agreement to collect child 5UPf'Ori arrearage Mly when to do $0 is in the best interest or the child and, tvfn then, subject to the specific conditions discuued below, One of the conditions imposed in RO· 9t·05 on contingency fees in (lrrcar(lge caSC5 is Ihat thert be "no means avail· able to the client (simi lar to those men. tioned in your question) to collect the arrearage. ~ The opinion request 1Th1kes specific reference to an income withholding order wh~ch may be obtained from the court (or payment of a modest fcc. More significantly, al the time IW· 91-05 WIiS Issued, Ihe [)epartment of l'luman Itesource! provided child support arrearage collection services only to custodial pareru who met the department's indigency requirements, It would appear. therefore, Ihllt at the time the Discipl inary Commission issued IW-91-05, the Commiulon intended that iln altorney nol accept a contingency fcc if the custodial ~rent qualified fo r the Sime services to be provided free of charge by Dl lft 1·lowever. since th~t opinion was issued, there has been a f(de rally mandated chanlle in chi ld support procedu res which now requirts the Depilrlment of fluman He50\Jrces 10 prollide arrearage collection services to any cU5todiai pilrent regardless of his or her economic slatus, It is. therefore, no longer reasible to tie Ihe propriety of contingency C(Jn· tracts 10 whether the custodial p:mnt would qualify fo r free DHH services. since all custodial parents may now avail themselves of Ihue services. In view or the fact that collection of back child support is provided free by the state, the Disciplinary Commission is or the opinion that only In Ihe rarest of instances shoul~ an attorney tlccep!

such collection caus on a contingent basis, The determinative consideration should always be Ihe best interest of the child, which may not necessarily coincide with the desires I)r expectations or the cusIodial parent. An attorney should not enter into iI contingency fee agree· Im:n! without giving urious consideration to whether an hourly or contingent fee is in the best interest or the child. The Conuniu ion frankly has difficulty enllisioning My circumstance under which II contingency fee conlrllct would be in the besl interest orthe child, However, the Commhsi(Jn docs not. at this time. conclusively prohibit such contracts out of conCfm that certain circumstances, of which the Commission is not cotlnl7.ll!lt and C.(In· not at this time roreSff:, could result in ., situation where a contingency fce contract is Ihe only means available to the child to collect past due chi ld support and would, therelore, be In the be~t interesl of Ule child, The Commiu ion emphuizes again, however, that an attorney should !lot enter Inlo a conlingency fee agreemenl unlcS5 lhe lIttorney

can conctusively make a /toad (ailh determination that the interesl$ of the child are besl served by such an agreement , '1,e Dlsclplin!lry COOlmiAsion is furthe r of Ule opinion that. in those rare inst.1llCes under which an attorney can Il'lllke a good (ailh determination that II contingency contract is in the best inl{:(est of the child, the attorn/:) mUllt advise the parent. in writing, that the collection or child support is available at no expense 10 lhe p.1rent or child through either the Ikparlmenl of Human neso.rrces or the Child SuPPOrt Collection Dlyision of the District Attorney's Office, In fact, the Disciplinary Commission is of the oPinion that the parent should be advised of Ihe free service offered by the sUle, rcg:r.rdless or whether the representatioo Is on II con· IingenC)l or ~et fcc b;isis. 1'le Disciplinary Commission is also of Ihe opinion that failure of the attorney to adequately inform the parent of lhe aWlllabilily of I)!-In or the DA's services, or any attempt by the attorney to discouragt or dissuade the pouen! of using such (ree strvices. would constitute a lIiolation or lhe nules

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of Professional Conduct 0( the Alabama State llar. including. but oot necessarily limited to, lMe 1.4(b). Attached to this opinion as an Ilddendum is lm acknowledgment form which gives notice to the parent 0( the availability 01 fret Sfrvices and Illso coot,.iru an affirmation by the parent that the attorney has discussed and explained the option of using the Oep.... rtment of HutnMl I~esollrces or the District Morney's Office to colleclthe arrearage. TIle Disciplinary Commission of the Alabama State Bar is of the opinion Ih.'\t nule 1.4(b} rClluires every ,.Uoml')' who proposes to enter into a contingency contract or a set fee contract to collect past due child S\lpport to obUlin the sig",,1ture of the cwtodinl pa.rent on this acknowledgmenL Another requirement of RO 91 ·05 is th.,t the fee must be fair lind reasonable. The Oisciplinal')' Commission has serious concerns that. in the absence of sill:nificant militating lactors to the contrary. any oontingenc) fee which exc«ds the actual value of the services rendered by the attorney. when calculated on the basis of II reasollilble houtly rate for time actually expended. would be excessive. In fact. the Disciplin.lry COl'l'lllliS!ion is 0( the opinion that there should be a rebut· table presumption Ulat any contingency fee which exceeds lhe actulli value of the service~ calculllled on an hourly bnsis must be deemed excessive. In other words, in those rare instancH where a contingency fee is determined to be in the best interest of tne child. the fee nlay not exceed the ~mOlmt the allorncy would receive were he em ployed on an hourly basi$. Any attorney who accepts a child support arrearage case on II contino gency fee basis should cMefully consider the amount of hi$ fee and should make a Aoo<! faith determinlltion that the fee is reasonable when measured by the above standard and th ~ factors set forth in Rule 1.5. All attor~ who accept contingency fee arrearage cases should be a.....are that their fees nre subject 10 scrutiny by the Office of CCIleral Counsel and the Di~iplin.lry Commission to determine compliance with the nules of Profusional Conduct and this opinion. Any altomey whose fee is challenged as being unreasonable will bear Ihe burden of showing that the above standard. as well as the critcrill in Ilule 1.5. have betn applied in determining the fee. :w

~."U.RY

The final condition imposed by RO 91· 05 is Ulllt Ule client must be truly indigent and. therefore, unable to pay for the leg.11 services on nny basis other thlm a contingency fee. If the client i$ IIble to pay the prevailing nrurly rate for an attomey's servicu. the attomey I'Ill5 an ethical obligation to work for an hourly rate fee mUler Ullln llking a substantial portion of the back child support which. in virtually every instance. would result in a much higher attorney's fee than would an hourly rate. Ag.lin. the determl· Illllivt criteria is the best interest of the child. When an attorney taku a p.::rcenlage of b.:lck child supporl as his fee. he deprives the child fOr whom the child support Wil$ intct'lded of obviously needed resources. As rtferenced in the question. Alab.lm.1 Court~ have held. and repeiltedly confirmed in recent decisions. Ihnl child support belongs to the minor child. not the cU5todiai parent. and the p<1renl may oot. by agreement with the non,cuslodial parent or others. deprive the child of the monetary Sllpport to which the child is entilled. I~ ep rese ntative of such ca.ses is "'loyd /J. Elimollso11. 58 1So.2d 58J (Ala.CivApP. 1996). which holds. in perti· nent part. as follows: '''Although child support is paid to the custOOinl partnl, it i~ for the sole benefit of tne minor children.' Sta/(! ex ri!1. Shellhoust II. Bentley. 666 So.2d 517. 518 (Ala. Civ,App. 1995). 'P,uental support is II fundamental right of all minor children .... The right of slJPport I; inherent and cannot be waived. ev~n by agreement.' f;X parte Uniller.~it!l of South A/rItXmUJ. 541 So.2d 535. 537 (Ala. 1989). 'Achild has an inherent right to receive support from his parents, and that right cannot be waived by Ihe parents by agreement evt:n if a waiver of support provision is included in the final deuce.' Davis & McCurley. Alufxmlll Diu()~. AlimollY & Child Custody f lombook § 22·8 n.t 247 (3d ed. 1993). See IIlso Ex parte Stllll! e:c rd. Summar/in. 634 So.2d 539 (Ala. 1993). It is 'Ule public poli. cy of this stale that parents c.'\noot abrogate their responsibilities to Iheir minor children by mutual agreement Delween themselves so asio de1)rive their minor children of the support to which they ar~ leWllly entitled.'

Balik ilu/eJH!t1dellI /J. Cools. 591

So.2d 56. 60 (Ala. 1991): 681 So.2d at 585. See also, State /JetJl. Res. IJ. SullilJ(ll1. 701 So.2d 16 (AllI.CivApp. 1997): State Dept. of Human Res.• £\' ref. Nattum v. Na/hem. 655 So.2d 1004 (Aia.CivApp. 1(95). The Disciplinary Commission ll.'\S seriou.~ concerns tliat the praclice of nllowing c(lnlingency (eu in child support arrearage roues can result in a subst.,ntial portion, sometimes as much M half. 0( tl'M: fundslhat should be used to clothe. feed and educate depen· dent children, going to attorneys in Ihe fonn of contingency fees. If the custodinl par~nt may nol deprive the child of $UPport by forgiving the support obligatjoll~ of the noo-custodial parent. it would appear equally question<tble (or the p:!renl to deprive the child of support by giving a subs!"1ntial percentage thereof to nn attor· ney il$ leg.11 floeS. TIlis concern becomes even more compelling if lhe parent has the ability to p:!y the attorney from funds oth(or Ullln those designated for support of Ihe child. It is the opinion of the Disciplinary Commission th~t any nttor· ney who desires to !"lke a child ~upport llTTt:'Irage case on a conlinll:ency fee bMis must take all reasonable steps to investi· gate the financial condition 01 the cuslodilll parent and make it good faith deter· mination that the parent is. In (act, un.1ble to pay a reasonable hourly rate or 10 obtain legal representlllion on any other than" contingency fee basis. It is further the opinion of Oisdplin.1ry Cotnlilission that an ilttorney who accepts 11 child support arrearage () Il a contino gency bMi! when he k!l()Y.'S that Ihe p:!rent is fin.1nciillly able to p;Jy an hourly fee. or an a\lorney who fails to aOcquately in\'e5tigMe tne fin.1ncial resources 01 the parent in order to make such a determi· nntion. is In violation of Rule 1.5(d) and is subject to di$Cipline therefor. In summary. it i~ the ot)inioo 0( the Disciplinary Commission 01 the Alabama State I~r that rarely. if ever. are contingency fee contracts in the best intemt of the child and that Defore any attQrney ente~ into a contingency fee contract for the collec· lion of child support arreara.ge, the folIov.·ing conditions must be satisfied:

of /-Iumall

The attorney has madt a J!{ood faith delermlnHtion Ihal a conlingent fee or hOllrly fee Is in the best Interest of the child.

c.c~," c=.=,------------------------------------------------------------'.,.0 r-=""~.....

2, The attorney has requirell the custo· lIial parent to sign a written acknowledgment arfirming that the pimmt understands that the $<1me collection ser.'ices are available from Ule state at no cost, 3. The contingent fee is reasonable and not excessive. TIlere shall be a r<!buttable presumption Ihal any contIngency fee which exceeds the actual V<llue of Ule services calculated on an hourly basis musl bt deemed excessive, 4. The attorney has conducted surficient inquiry to make a good faith determination that the parent cannot pay lin hourly rate from funds other than those deslgrlatcd for support of lhe child. IRO·98-011 •

Addendum To AO 98'()1

I, (name of parent), acknowledge that I have been irlormed and undelltand that the Dep.1rIrTlCnt of Humlln Resources, andlor the District Attorney for the Judicial District in which [ reside. will collect the plist due child support 10 which my child is entitled at no cost to me or to my child. I fu rther acknowledge that my aUornty has explained to me the procedures which I may follow to avail my child of lhis fru strvice ,md that my attorney has done or said nothing to discourage or dissuade me from usin" this service, With full knowledge of the availability of this free service, I hereby make the conscious and Informed decision not to take advantage of such free serviN: to collect the support due my child, but instead I have deeided to 1><1y my attorney either an hourly rate of $ _ _ per hOur or a percentage of the money due my child in accordance with the terms of the attorney's propo5td cortingency fee contract. My signature on this acknowledgment affirms that I fully understand my rights and obligations with reltard to the back child support due my child. Signed this the __ day of , 19_ _ . signature of parent

Third Party Auditing of Lawyer's Billings-Confidentiality Problems and Interference With Representation Que.tlon:

The Office of Ceneral Counsel has received numerous opinion requests from attorne)'s who represent insureds pursuant to an employment agreement whereby the allomey is paid by the Insured's insurance carrier. Some insur· ance companies have begun to submit to the allorney billing guidellne! lind litigation mana"ement guidebooks which place certain restrictions on discovery, the use of experts and other third party vtndoB. The billing guidelinC5also restrict the lawyers who will be allowed to work on the files and require pre-approo,'al of time spent on research, travtlllnd the taking and summarization of depositions. Some insurance companies also require the attorneys they employ to submit their bills to a third party blllJng review com1><111y for their n:view and approval. The bills obviously contain descriptions of work done on beh~lf of the insureds, In most instances, the insureds havt not been consulted and hllve not ilpproved the use of the billing guidelines and litig.1Uon management guidebook or the

billing review proem. The Inquiry presented is whether theT\! is any ethical impropriety in following these procedures which some insurance companies are attempting to impose. An.wer:

It Is the opinion of the Di5Ciplin;u,)' COrllmi»ion of Ihe Alabarna State Bar that II laW)'i,!r should not permit an insurance company, which PllYS the lawyer to render legal services to its insured. to interfere with the InW)'i,!r's independence of profcMion;l1 Judgment in rendering such leg.11 services, through the acceptance of litigation management guidelines which havt that effect. It is furth\!r the opinion of Ule Commission that a 1~W)'i,!r should not permit lhe disclosure of information relating to the representation to a third l)3rty, such as a billing auditor, if there is a possibility that waivtr of confidentiality, the attorney.cIient privilege or the work product privilege would occur. The Discipllmu')' Commission expresses no opinion as to whether an attorney may ethically seek lhe (onsent of the

insured to disclosure since this turns on Ihe Icg~l quest ion o{whether such disclO$ure results in waiver of client confi dentiality. However, the Commission cautions atlorne)'li to err on the side of non·disclosure if, in the exercise of tht: attorney's best professional judgment, there is a reasonabll! possibility that waiver would result. In other words, j( an attorney has any rea$Onable basis to believe that disclosure could result in waiver of client confidentiality, then the attorney should decline to make such disclosure. DI.cu •• lon: The Disciplinary Commission of the Alabama Sl.'Ite llar has addrtSsed the conflict of Interest issues raised by dual represent{ltion of the in5\lr~r and the insured in several earlier OP'nions, In one of those, Im ·S7-U6, tht Commission concluded as follows: "Although )'Ou Yo-ere retained to represent lhe insured by the insurance company and are paid by the company. you r fiduciary duty of loyal ty to the insured is the same as if he had

directly engaged )'Our services himself, See, RO-84·122: Nali()IlIl.'I'de Mul ua/ lnsurallce Comlxmy ll, Smith , 280 Ala. 343, 19>1 So.2d 505 (I9661 and Out/J<xJrtl Mtlrill(J Corporatioll /!. UbltrlU Nlltual

536 ~: 2d 730, 7th Cir. ( 1976). Since the interests of the two clients, the insurance com· pan)' and the insured, do not full y coincide, the allomey's duty is first and primarily to the insured." Similar conclusions were reached in RO·90-99 and IlO·8 1·533. Additionillly, the Alabama Supreme Court discuued the Insurer-insured relationShip in Nitchum II, Hudge1ls, 533 So.2d t94 (Ala. 1988) and confirmed the I)isciplinary Commission's analysis of Ihlll n: l allo n~ hi~, lIit: Insurallce Cf)mIXllly,

empha~i~cd tlwtlhe relalionship beho.'een Ihe insured and allorney is thai of attorney and clienl. That reilllionship is the same as if Ihe atlorney were hired and paid directly by the insured lind therefore it imposts upon the attorney lhe same professional responsibilities thai would exist had the attorney been personally retllined by the insured. These responsibil- ilies include ethical lind fiduciary obli~ . tions as well as maintaining the appropriate !tandard of Cllre in defending the action against the insured." 533 So.2d at 199, See also, Hazard and Ilodcs, 1'he Low of l.owuerhlfl. 2nd Ed. §§ 1.7: 303·304, These authoritiU conclusively establish the proposition that the Insured is the attorney's primary client and it is to the in5 u,,~d that tht attorney owes his first duty of loyally and confidentiality, I~f(ective Janul!rY I. 1991. the Alabama Supreme Court promulJt,.lted the l~u l e5 of Profc5sionlll Conduct of the Alabama State Bar. Rule 1.8(f) of the Hules of Professional Conduct provides as follows: "Rule 1.8 Conn let of Interut: Prohibited 't'ransactiOI15 (0 A lawyer shllil not accept com· pen$iltion fo r representinll a client from one other than the client llIlle55: (I) the c'ient consents aft er con· sultalion or the tll'.',1)'er is

"It musl be

appointed pursuant to an insurance conlract; (2) there is no interference with the lawyer', independence of pro(essional judgment or with the client· lawyer relalion~ h i p: and (3) information relating to repre· sent:ttion of a client is protected as required by Rule J.6.~

A si mililr ilnd relilted prohibition ig found in Rule S.>I(c) of the Hules of Professional Conduct which provides as follows: "Rule 5.4 Professional Independence of a Lawyer (c) A lawyer $hall not permit a person who recommends, employs, or pays the lawyer to render legal scrvieu for tUlother to direct or regulate the hwyer's pro·fessional judgment in rendering such legal services." The Disciplinary Commission has elll!.mlned a "Litigation Management Cuidebook" which the Commission ullderstllnds to be one example among mally of the procedures which r.ome insurance companies have requestcd allorneyslo follow in repre:sc:nting insureds. This gl.lidcbook contains vari· OI.lS provisions and requiremenU which are of cOOcern to the Commi.uion. The " uidcbook requires a "clalnu profes. sion"I ", who in most Instances Is a nonlawyer irlsufarlce Ildjuster, to "manage" allllligation. An excerpt (rom the guidebook provides liS fol 'ows: ~Accoun tabi1it)' for the lawsuit rest with lhe defense team, This learn is composed of the claims profe~ionlll and the defense ~ tt o rney, The claims professional is cll11rgcd with fulfil ling all the responsibilities enumerllled below and is the manager of the liti· gation." Other responsibilities of the claims professional includt ~('YaluatIOIl of liabilit)', evaluation of damllges, recommendation of disco\ery and selllem c nVdispositio n .~ The guidebook requires the clalms professional and the defense attorney to jointly develop an ~ I nitia l Case Analysis~ and "lntegrllted Defen5e Plan" which are "designed for the claims professiOnill ilnd defense

llltorney to reach agreement on the Q5e strategy, investigatiol' lind disposition pla n .~ Furthermore, the attorney "must secure the consent of the claims profc$siona l bdore more than onc attorncy may be used at depositions, Irials, conferences, or motions." The claims pro· fcuional must approve "Ielngllglng experts (mediClll llnd othuwi5e), prepa· rat ion of charts arId dillgrams, use of detectives, motion pictures and olher exlraordinlll')' preparation ....~ The Llli(l<III011 Management Guidebook also requires thai all research, incl udin" computer time, over three hours be pre· approved by the insurance company and restricts deposition preparation by providing that the "person att~ndinglhe deposition should not Sp(nd more time preparinA for the deposition than the detlOlilion l a~ls." 11 lIthe opinion of the Disciplinal')' Commission of the Alabllma State Bar Ihllt many of the requirements of the Litigation r-lanagement Cuidebook such as described above could cause an "interference with the lawyer's indtpen. dence of professionlll judgmcnt or with the client-lawyer relationShip" In yiola· tlon of 11\lle 1.8(/)(2) lind Illsa possibly constitute an attempt "to direct or reg· ulate the lawyer's profus.onal judg· ment" in violation of Rule 5.4(c). The Commission is of the opinion that foremost among an attorney's ethical obliS' IIlion! is the duty to exerd5e his or her Independent professionlll judgment on behalf of II client and nothing should be permitted to interfere with or restrict the attorney in fulnlling this obligation, An attorney should not allow liligation guidelines, or any other requirement or restriction imposed by the insurer, to in any way impair or innuence the inde· pendent and unfettered e~ercise of the attorncy'$ best profeSSional judgment in his or her re presentation of Ihe insured. The Commission has a!so examined the insurance comp,lIly's ~ tJiliing Program" pursuant to which attorneys lire reQ\lIred by the insurance company to submit their bills fo r representation of the insureds 10 a third party auditor for rt'\lil..>w and approvili. Not only are the bills th em~e l\'es to be submilled to the auditor, bul all invoices must be accompanied b)' the most recenllnilial Case Analysis and Integrated Defense Plan which contains the defense attor·

ney's strategy, investiJlalion and dislXlsi. tion plans. ~::a.ch activity (or which the attorney bills "must bt described adequately so lhat a person unfamiliar with the case may determine what IIctivity is being perrormed .~ It is the opinion of the Disciplinary Commission Ihat disclosure of billing informal ion to a third party biliing review company as required by the billing Ilro~ ram of the insurance com· pany may constitute a breach of client confident iality in lIiolation of nules 1.6 lind 1.8({)(3) and, if such circumstances exist. such information should not be disclosed without lhe upreu consent of the insured. 1·low!.'Ver. the Commission Illso has concerns that submission of an attorncy's bill for representation of lhe insured to a third party for review and approval may not only constitute a breach of client confidentiality, but mllY also result in a w~lver of the in$ured's right to confidentiality, as well as a waiver of the attoTl\ey-clierlt or work product privilegel. While it is not within the purview of an ethics opinion to

address the legal Issues of whether and under what ci rcumstances waiver may result. lhe factthal ....'3iver is II possibili. ty is a mailer of significant ethical concern. A recent opinion of the United Slales First Circuit Court of Appeals. U.S. II. /IIa.f.fachusetts Inslillilu of Thclll/o/ogy. 129 ~:3d 681 (ht Cir.

1997). held that the !ItS could obtain billlng information from MIT's allorneys, which would otherwise be protected under the atlorne).client privilege and as work product. because foUT had previously provided this lame informa· tion to l)efense Department auditors monitoring follT's defense contracts. The Court held that the disclosure of these documents to the audit agency fo rfeited any .....ork product protection and waived the attorney·client prillilejle. MIT argucd th:!t dl$ci(lsure to the /Iud it agency should be regarded liS akin to disclosure to those with a common interest or those who. though separate parties. are si milarly aligned in 11 case or consultation. e.g.. investigators. experts, codefendants. inSllrer and insured. patentee and licensee. The Court reject·

br·IJ.4,... ~ J. ~'lrmiIH I)tllll)'•• 111 CI, U You c$llIbli$h Bools for creatinB wealth. We help you meet your BOlils. while protC1:ting YOIlr rllrnlly lind eSUitC through InsunllCe Dnd finllllCilll products.

100/1II'trottS$ C,.rllrr l'lll('t

$lIil" SOO 8lrming/oum. M. JSUl JWj. lI lJ

CIVIL ACTIONS AT LAW. Third Edi (i on IJy Crol'i: r S M eum/

TIle third edition or M c Le~xl', eMf I\ClimrJ has 75 chaptcfll llnd is 870 pages or up·to-dmc lexi. It ~how~ lhe growth and chllng(~ in c;i(!h $ubj,."ci. For in ~l n nce. do you know when nn employer 15 liable for a grawilous )CX act or II rdlow employee? Do you know ir an employee files II claim ror workrrron'$ collll)Cn~:l1i on lind his employer thereafter lIelll~ hilllllndul) lhm he hlls an !\Cllon ror rcmli:nory dischllrge '~ McLeod wi11 lcl1 you! 1b 1)lhCe your order. pltus<: rnuilliris fonn 10: Manchester PreiS. 1'.0 . Box SSOI 02. Birminghmll. AI 3520S. or cull (20S ) 933· 1800. (E·mnil : IIlsI111208@uo1.COIll: Wcb: www.woctdrellchillc.com/mllnchcstcfpreSS). Pl tn~o ~c n d

me _ _ Copy(ics) or CII'/f tlcli(J/I.Yfli /.irM' III tI/tlbmlllr. Jrt/ rt/ .. by Gmvcr S. McLcOO.

o I h:llfe enclosed Illy check In the umounl of $108.00 ($9S.00 plus 8% IIIX plu~ ~hippills/hnlldHll8 ehurges) per book. o chnrge $108.00 VholMC l)Cr book. Plcu'iC

10 Illy

BCCOurU

Exp. DUle: ----1----1__ My account number is: Stgnmure: _ _ _____________ _ ____________________

Nlltlle: ________________ ___ Firm: _____ __ _________ Addrcss:_ _ _ _ _ _ _ _ _ __ _ _ CiIY. Slille. Zip: _ _ _ _ _ _ _ _ _ _ _ _ _ __

ed this argument holding that an out · side auditor was not within the "magic ci rcle" of "others" with whom informa· tion may be shared without 1055 of the privilege. "Oecisions do tend to mark out, although not with perfect consisten· cy, a small circle of 'others' with whom IMc)rInation may be shared without lou of lhe privilege (e.g .. secretaries, interpreters, counsel for a cooperating codefendant, a parent present when It child consults a lawyer), Although the decisions often describe such situations as one in which the client 'intended' the disclosure to remain confidential, the underlying concern is fu nctional: lh,it the lawyer be able to Con5(11I with others needed in the represen· tation and thut the client be allowed to bring closely related persons who are appropriate, even If not vital, to a consultation, lin intent to maintain confidentiality is ordinarily necesSilry to continue protection, but it is not sufficient. On the contrary, where the client chooses to share communit.'ltions out· side this m.1gic circle, the courts have usually refuud to extend the privile5{e." 129 F.3d at 684. ru Indicated above, the question of whether disclosure of billing informa· tion to a third party auditor constitutes a waiver of conrldentiallty or work product is essentially a legal, as opposed to ethical, iuue which the Commission has no jurisdiction to decide, The Commission is also aware that this may be. a developinll ~ rea of the law which could be affccted, or even materially "ltered, by fut un: decisions. However, while the Co mmi ~slon rccOllni7.es that the MIT opinion may not be the dcfini· tive judlcllli determination on this issue. the possibility that other cou rt~ could follow the ht Circuit makes it incum· bent on every conscient ious attorney to err on the side of caution .....ith re!lord to such disclosures, If disclosure to a th ird party auditor wilives confidentiality, the attorney·client privilege or work prod· uct pro·tection, then such disclosure is clearly to the detriment of the insured to whom the delense attorney owes his first and (oremOlt duty of loyalty. Attorneys who represent the insured

puuuant to an employment contract with the Insurer should err on the side of non·disclosure when there is any Question as to whether disclosure of confidential information to a third parly could result in waivtr of the client's right to confidentiali ty or privilege. Furthermore. while a client may ordi· n:'Tily constnt to tilt disclOlure of con· fidentia l information, the Commission questions whether an attorney may eth· ically seek the client's consent if disclo· sure may result in a .....aiver of the client's righlto conr.dentiality, the attorney.client privilege or the work product privilege, This concern was 5Pf:cifically addrmed by the State Bllr of North Carotin;! in Prol)05ed Ethics Opinion 10. The opi nion points out lImt "the imured will not generally benefit (rom the rele:ue of any confidential i nfor mati on .~ To lhe contrary, rCleM£! of such informiltion could work to the detriment of the insured, "The relellse of such Informat ion to a third party may constitute a waiver of the insured's attorney·cl ient or work product pri\'ileges. Therefore, in general. by consenting, the insured agrees to release confidential information that could possibly (even if remotely) be. pr~j ud icial to her or invade her privacy without any returned benefit.The North Carolina opinion discusses the comment to Rule l.7(b) which states that the lest oj whether an attorIley ~hould a~k the client to consent is ''whether II disintere.lted lllwycr would conclude that the client should not agree." The opinion conc lude~ lU follows: "When the insured could be prejudiced by agreeing lind gains noth ing, n disi nterested lawyer would not conclude th~tthe insured shou ld agree in the ilbsence of some special cir· cumstance. Therefore, the lawyer must reasonably conclude lhat there is some benefit to the InS\lred to out · weigh any reason)ble expect.1Uon of prejudice:, or thaltht insured cannot be prejudiced by a relea~e of lhe confidential informaLon, before the lawyer may seek the informed oon· sent of the insured nfter adequate consul ta tion ,~

In reaching the alxwe st'lted conclu· 5ions, the Disciplinary Con'll'niS!;ion has examined and considered, in addition to opinion of the North carolina Bar referenced above, opinions iu ued by, or on behalf of, the Bar Associations of Florida. Indiana, Kentucky, Louisiana, MiS50uri, r-tontana, North Carolina. Pennsylvania, South C<lrolina, Utah, Washington and the I>istrlct of Columbia. All of these opinions appear to be consistent with the: eonciusions and concerns expressed herein. Only Massachusetts and Nebraska have relelUed opinions which may, in part, Dt inconsistent with this opinion. and it appears that the opinions from these two 5tates are not official or formal opinions of those states' Uar Associlltions, In summaT)l, lind bascd upon the foregoing, it is the ')pinion orthe DlsciplinllT)l Commission of the Aillbama Stale Bar that a lawyer should not permit an insurance company, which pays the lawyer to render legal services to its insured, to interfere with the lawyer's independenCE of professional judgment in renderln!lsuch legal ser· vices, through the acceptance of litiga· tion manal:(ement guidelines which have that effect. It is fu rther the opinion of the Commission that a lawyer should not permit the disclosure of information relating to the representation to a thi rd party, such as a billing auditor, if there is a possibility that waiver of confide nt l3lity, the attorney-client privi lege or the work product priYilege would occur, The Discipli nary Commission expresses no opinion as to whe th ~ r an attorney may ethically seek the consent of the insured to di5tlo$urc since this turns on the lcg.~l (Iuestlon of whether such disclo~u re rcsul ts in waivcr of client confidentlnllty. However, the COlllmission cautions attorneys to err on the side of non·dlsclosure if, in the exercise of the attorney'. best professional judgment, there 15 a reasonable possibility that waiver would result. In other words, if an attorney has any reasonable basis to believe that disclosure could result in waiver of client confidentiality, then the attorney should decline to make such disclosure. IRO·98·02) •

Southern Conference of Bar Presidents The 1998 Southern Conference of Bar Presiden ls was held in Octobe r in

Ihanson, Mi ssouri. Rep resenting the Alabama St.ate Bar were Presiden t Vic LOll, President·elect. Wade Baxley, Past President Spud Seale and

Executive Director I<ei th Norman.

Ie ae

-One 01 the nalion's leading pain physicians

·A specialist eel'lilied in pain management by the American Board 01 Anesthesiology and the American College of Pain Medicine

Pk/fIrlV (tOOl." U'lI ASH ,m/dt, u..-I«I WiHN lJax/q und Pmhiell/ L'k 1.011ul II dmnt.,. hotl<!tll>¥ TM M~ri llur.

mmer, M.D. Well qualified to address

Complete medical and

issues of pain its cause.

neuropsychological

effect and \l'e01mel11

evaluations are available

indications. Dr. Hammer

through The Comprehensive

·Trained In anesthesiology at Yale university School ot Medicine

has prov ided valuable and

Pain Trentmellt Center. Call

credible testimony to both

for further in fonnatlon or 10

·Held a faculty poslUon at Boston

1)laintirr and defendant

schedule n conference.

university Medical School and currently serves on the faculty at EmolY University School 01 Medicine · An InlernaUonallecturer and Instructor

lor various professional organizations ·Founded The Comprehensive Pain Trea tment Cen ter

cases.

11111

L EGISLATIVE WRAP-Up By Hobert L. McCurley. Jr.

The new legisilltors have beerl ~W()rn in and lhe Legislature finds iuel( with 22 new Uou ~e members and len new Senillon. Eight of lhe Sen.,lors are first-timers in lhe Il:'sisla. live process, while all o( the "louse memhers are first-timers. The new legi~lators mel at lhe Law Center in 1\JscalOO$.!l for an orientation on December 14 , 1998. where they were briefed on the Icgblatl\'c proce~, wh'lllo expect as a new legislator, slnfnnR. orne!!s. nnd computer capabilllieJ, as well as an awareness or the ethics I'M;md dealinll with lobbyists. The new le gi~ l ato r~ were joined by the retu rning legislators on 1\Jcsda)' and Wednesday, December 15-16. 1998. 'rllis three-day stssion was pre~l ded oYer by Senator Ro"er Bedford, chair oflhe Legislative Council and Rcpruentative Seth Hammett, vice·chair of the Legislative Council. The kick·off remarks \\'ere deliVfred by L.t. Governor·Elect Steve Windom. lie was followed by Brian Weberg. of the National Conference of State Legislatures in Denver, who spoke on the trends of state legislatures as we approach the 21st century. Other iuues add res.~ed were children, education K through 12. and higher educatioll. Former ~H " i ssippi Covernor William Winter revie\\'ed a pilln for economic development. Dr. Earl Fox. administrator of the I-Iealth Ilesources and Services Administration in WMhington. DC. briefed them on health care problems. They were also given a welfllre reform updllte and briefed on lhe reapportionment proceu that this legislature will hllW: to undergo after the 2000 census. Alabama.·s financilll condition was reviewed by Jo),(:e Bigbee, director. Legislative ~'iscal Office. and Oill Newton. assistant finance director for lhe Stale of Alabama. This was followed by Chic( Justice Perry I-looper briefing them on critical issues facing the judiciary. The three.dllYLegislative orientation session. held at the Unl ve r~l t y of Alaban\a School of Law. concluded with 811 address by Covernor·Elect Don Siegelman In his first major ~ddress to the entire I,egisillture.

Robe rt L.

McCurle y,

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fIObIoIl L MCCu!1ty .II II !he dirOCIOl 01 ... ~~ ..... lniIoIUM M lilt ~OI ~ Ha _ "" ~lI'lIMI' "'" law degfw. lrom me lIrIIYtItljl"/

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This orientation was the t.eVenth conducted by the Alabama Law Institute and LegislatiVf Council and held at the UniVfrsity of Alabama School of l.aw since 1974. I.awyers comprise II of lhe 30 Senatorial positions. but only It n of the 105 seats in the House of Hepresentatives. This was a decrease of lilW)'el'$ from 25 10 only 21 in this new l.egi~ la ture . These law graduates come from eight IIlw schools. Six tawyer~ attended Cumberland. fi ve attended the University of Alabama. and ,lI\Othcr five attended the l3irminJlham School of l.aw. There is also one from each of the foll owintlschools: Harvard. Miles, Catholic Uni\'e r~ity. B05ton Uni\·ersity. and Jones School of Law. The Legislature will convene for an organiUltional session on January 12, 1999, with the inauguration held Montlay. January 18. 1999. Some of the first items of business will be to organize the respective houses. The Iiouse of nepreStntll.tives will elect II Speaker and Speaker I'ro Tern. n ,e Senate will elect a President Pro Tem. l10th Ilouses will develop legislative rules and legisla. tors will receive COmmittee appointments. This organiZ<ltional session is limited to ten consecutive calendar days and 110 business can be lrans,lcted at these SC$Sions. except organization of lhe Legislature. election of officers. adoption of rules, "ppoint· men! of committees, and declaration of rcsults of the elections for constitutional st-,te executive officen. The regular Stuion of the Legislature willlx!gin 1\Je~y, ~Iarch 2. 1999. The Legislature has 105 ealtndar days in whicll to meet for 30 legisllllive days. Special snsions can only be called by tile Covernor. Should Covernor Siegelman decide on a Special Session. the Legislature would haw: 12 lellislative days within a period of 30 calendar days to consider any lellislation In t~e Covernor's call. Any bill$. other than tll(l~e in th~ Governor's stilted pur· pose of the legl~lative se5~iOrl. muSlllaS$ with a two·thirds mlljority of tach house. Instltute-Dr.tted Legl.l.tlon Th~ Alabama. I.aw Institute is expected to present to the Legislature the Uniform Clliid Custody Juristiict on and t:nforctmerlt Act (see November 1998 ~lfaooma 1.IIItlycr). and a merger provision {or all business entities (see September 1998 ; Ifaooma Lowycr).

For more informlllion about the Institute or any of its proJects, conlact Uob McCurley. director. at the Alabama i..;!w Institute, P.O. Uox 861425, T\.Iscllloosa. Alabamn 35486·00 13; fax (205) 348·84 11: phone (205) 348·7411 ; or through lhe I n~titute's home palle, wWltI. faw.ulI.,,'(/u!all. •

Committee on

Access to Legal Services Honors

Volunteers

Alabama Supreme Court Justice Il ugh l\'laddox and Alabama State Bar President Vic Lott. Jr. were the fea tured speakers recently at special luncheons in Birm ingham ar,d Mon tgomery honori ng Leade rship Cou ncil members. The Leadership Cou ncil consists of attorneys throughout Alabama who have volun teered to take an active role in recruiting morc ba r members to join and participate in the Volun teer u lwyers Program. The VLP provides legal assistance to quali. fied persons who cannot afford to pay for legal :H!lVices. Alabama currently has 21 percent or eligible attorneys enrolled in the progY'lm (the national average is 17 percent). and the

~oal

for 1999 is to have 40 percent participating.

For more information about the VLP contact Kim Oliver, director, al (334) 269-1515, exl. 117.

ingham

Leaders

~A"OAfl짜

' 000 14 .

Save $100 or More and Make Tomorrow's Ideas Work Today! Because the Alabama State Bar is acting as a Program Partner, ASB members who wish to attend the ABA TECHSHOW '99· in Chicago - March 18-20 - will receive $100 off the regular registration fe e. Additional discounts of $100 each are available for early registration (before February 12thl,

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ABA Law Practice Management Section membership, and multi-

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For more information about TECHSHOW '99" or to receive a registration packet, contact

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March 18-20, 1999 Oon't mitt mo only logol r.c hnology (onf ....",. ",. .t..d by lawyen lot- lawyer.'

.:It ' ho """"'ry" ..... t ..n....'I.1 ope"'... d;,.",,, ... ,•• dInIIoS" kow '0 JWII'I. /or 101lI0I'I0 ..

Laura A. Calloway, Alabama State Bar Law Office Management Assistance

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Program . Phone 13341269-1515 or e-maillcalloway@alabar.org.

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r Liability

Emp

In Sexual

Cases:

1\vo New U.S. Supreme Court Decisions By Matt Vega

Introduction [n its most recel'll term, the United States Supreme Court

issued three decisions that ~lgnifiCllntly cxp;md the Illw"gllinst sexual hnrll~menlln the workplace (and one additional decision concerning li~bitity of educational institutions (or sexual harassment of students by employees).' 'J'wQ of these landmark cases, Burlington Indus/ries, fIlC., Petitioner P. Kimber/II B. £fli!rlh. 11 8 S. Ct. 2257 (1998). and &!h AnI! Furagher, PelillQl1l!r II. Cily oI1Joca RlIloll, li S S. Ct. 2275 (1998), were decided on the final day of the term. This laleS\ p3ir of decl-

siOtU con5[it utcs[he Supreme Court's first allempllo decide Whetl Md ul'lder \'ihat ci rcumstances an employer could be

held liable for the conduct of its employees. For over a doU!n yean there has been continued uncert/linty over ..... hether an employee who brings a Kxual harassment claim can recover against:1O employer that did oot know about (or authorize) the alleged harassinll behavior. In Mcrilor Sat'illflS l1tmk I'. Wnson. 477 U.S. 57 (1986). the Supreme Court fint recoSlni1.ed semal harassment as a cause of action under Title VII oflhe Civil Rights Act of 1964. 78 SUIt. 253, as amended. <12 U.S.C. § 2000e el seq. In that seminal case. hO'o\'t.'Vt!r, the Court specifically declined to iS5ue a definitive rule on employer liability. Instead. it instructed the I()\\.~r courts to look at common law agency principles while k~pjng in mind that Congress

clearly intended that lhere be "some limits on the acu of employtes for which employers under Title VII are to be held responsible." [d. M 72. As ~ re5uit, for over a decade courts have been conducting complex $COpe of employment 1ln.11yses to determine employtT liability. with widely varying resulu. Seven years after "'erilar the Court made $Ome efort in fiflrris u. fork/in Syslems. Inc" 510 U.S. 17 (1993). to define ho.~tile work environment sexual harassment. but it still did oot .usist the lower courts in deciding when the tmployer could be held liable for harassment perpetrated by its employtes. Although the new opinions certainly raise further questions, they do provide some much-needed assistance to employers who attempt to ~fo ltow the rule5 .~ Thi5 article will auempt to explain the newly announced rules as \\'ell as repOit what M.1t

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some of Alabama '5 Ia rge~ t employers have dOr1(l Or are dOi ng to eompjy wit.h lh ~ rulh\f{s <Indio avoid legal liability. The New Stand.rd for Employer Liability In Eller/II and in Fc1ragller, the Supreme Court expanded an

employer's liability for sexually harassing acts by supervisors, Before June 26, 1998, most eourts h~d ruled that the standard for liability turned pri marily on whether a Cilse was quid pro quo sexllal h,lrassment Or hostilt: work envi ronment ~eK\JllI harilssmenl. The employer was held vicariously or ~utomali · cally liable fo r quid pro quo sexual harassment. but wM generally rIot held lIahle for a hostile cnvironment ul\less it '"knew or should have known of the har<lssment and failed to take prom])t remedinilictioll ," See /Jenson/I, Citu or Oll/uk-e, 682 ~:2d 897, 909·910 (lllh Cir. 1982). The basic distinction between quid pro quo and hostile environment har~ssme nt is that in a quid pro QUO case, the employer has explicitly demanded sexual favors in return for a job benefit. or conversely explicit Iy denied job benefits beciluse of the employee's rejection of the dem;md for sexual favors (e.g., "Co to bed with me and I'll hire you" or "If you don't go to bed with mc, J'II dcmotc you"). Jr\ the hostlle Cr\virorwr\cr\t case, however, the employer docs not overtly demand sexual fawTS, yet the vab,,!, physical or visual misconduct is so "severe or pervllSive" Oil both a !ubjective basis (i.e, ull\\'el· comed by the vktim) and objective basis (i.e., as perceived by a reasonable perron) that the court Infers that the employer has altered the terms and conditions of employment. In EII~.,/h and Faragher, the Supreme Court all but abandoned this trilclition,,1 dichotomy of q(li(! pro quo or hostile ellvironment. First, employers can no longer defend themselves in certain hostile environment c.lses merely by proving Ihat thl'Y were unnw<rre of the harll.~sment or th~t the victim f"i1ed to rel'lOrt the har<lssment. There i~ no more "ostrich·he<ld·in·the· :<.and" defense. 1 !1~te"d, the Supreme Court shifted the focu~ to whether the /lneged har.rlSer is a supervisory or non.supervisory employee. The Court held that an employer can be held viCllriously (or automatiC<\lly) 1illble for a hostile environment created by a manager or supervisor (subject to a new affirmative defense discussed Delow if no tallgible employment aclion (ollows). O( course, when the hostile environment is created by co· workers rather thiln supervisors, ilseems likely th;rt cou rL~ will continue to use the Soll11e stand.,rd "pplied prior to ffler/h and Faragher; ntuncly, whether the employer reasonahly kllf:W or should hllve known of the conduct and fai led to address It. The ElIerfh and Faragher decisions also clarified the lIM 0 11 quid pro quo harassmellt. The Court made clear in these opinions that the quid pro quo framework will not ~pply to a non-s\lpervisoI'Y employee unless he or she has been given some form of authority, such as making oul a~ignments or scheduling, and CQuid abuse that authority to coerce sexual favo rs through the promise of preferential treatment or threats of reprisal. In additiQn, tht ~ trict lillbil1ty formerly a$~ociated with the term QlIld pro QUo now i~ limited to circumstances where a ""tangible emplO'/ment action" has occurred, Formerly, if II supervisor stated. "If you want to keep your job you·lI have to

go to bed with me," this WllS labeled quid ,,1'0 q(;o sexual harassment even if nothing detrimental (or positive) actually occurred. Under the new standa rd such a statement would constitute a hostile environment claim. provided that no "tangible employment action" act ually occurred. The Court narrowly defined tangible employment actions as thOse resu lting in a significant change in employment st;ltus such as a '· hir· inf{o firing. failing to promote, reassignment with significantly diffeT(mt responsibilities, or <I deci~ion C<l u ~i n g a significant change in benefit s." Strict liability means no dclense would be llvailnble for an employer found vicariously liable fo r harass· ment that resulted in a "tangible employment action:· Finally, the Court also gOIve employers guidance regOlrding how to limit their liability, The employer not only must have an effective ~nli · ha ri\SSment policy in place. with an effective com· plaint procedure, but it also must attempt to prevent the haTll~· mel'll from occurrinll and \..lke appropriilte corrective ;retion when it does occur. This is important because it b the first time the Supreme Court has llsed the word "pr(:vent" to dc~cribe what the employer mu§t do to make out an affirmative defense. The Court's rulings constitute" two-edged sword for employers. On the one hand, it is now possible for employers to avoid liability fo r certain types of qUill pro quo harassment (non-tangible harassment) by reclasSify ing the conduct as hostile environment harassment and proving their affirmative defe nse. On the other hand, employers will be found strictly liable for hostile environment har~ssment if a supervisor WilS involved and the conduct resulted in tangible employment action all:ainstlhe employee, Burlington IndustrIes, Inc. v. Ellerth

In Ellerfh. the pll,intiff. Kimberly Ellerth, was employed by Burlington, 11 large corporation, Il.~ a !<Ilcspcrson in a small outlying office located in Chicago, with a staff consisting o( herself and her dil'cct supervisor MlIl')I Fitzgerald. Ellerlh claimed her boss' boss, Theodore Slowik, had sexually harassed her, Slowik was a mid·level manager who worked ou t of the N..'W York City office and visit ed the Chicago office once or twice II month. and regultrrly ca lled the office fou r or five tim!;~ a m(!nt h. ,'he S1.lpreme Cou rt found that the combin<ltion of Slowik touching Ellerth on the knee, rmlklng veiled but unfulfilled Ihre<lts (telling her she should "loosen up" and that he cau ld make her job '"very hMd or vety easy"), referring to Ellerth's breasts, legs and buttocks, and making comments about her clothing w~s "severe and pervasive" enough to constitute hostile \\'ork environment harassment. Although the plaintiff rebuffed her supervisor's ildvances, she suffered no tangible job detriment and was, in fa ct, promoted. If she had 5u ffer~d some t,'ngibl\.' employment action, the Court observcd thllt it would h<lve held the cmployer strictly liable for the hosti le crlllironment. Nevertheless, Ihe employer was still held vicari· ously or automatic<ll1y liable for the supervisor's misconduct even though she su((ered no tangible job detriment. The Cou rt allowed the plaintiff to pursue the lawsuit ag~imt the employer. However, in order to sQuare its ruling with its decision in

Mer/fOr. which made clear that vicarious liability fo r employ-

the haraument occurred and their positiolls did not "(acUi· ers should not be absolute, the Court provided the enlployer tate~ thei r harau ment. The City o( Uocaflllton was held vicarBurlington with II new affirmative defense. iously or automatically liable for the supervisor's actions. with The affi rmativt deft n« available to all employers comprises Its only recourse to assert the new affirmative deftnsc. t"''O necessary elemenls, both of which must be proved by /I The cast gives us some indication of what it takes to llS5l rt lhe preponderance of the evidence: ( I ) that the employer exercised new affirmat ive defense. InstC<id or remanding the case. the reasonable care to prevent and correct promptly any sex· Court held that the City. as II matter of law. could not satisfy u(lily har~55in g beh(lvior. and (2) th:..t the plaintiff ~......... either element of the affi rmat ive defense. An employer employee unreasonably failed to take advantage of can Ilormnlly 5ucce~fully ral ~e the affinn.\\ive defense any preventive or corrective opportunities provid· by establishing the existence of II l111ra$~ment IXlliey ed by the employer or to otherwise avoid harm. imd the employee's unre:.sOllable failu re to use it. In Keep in mind. this affirmative defense applies this case, however. the Court said the affirmative only in a hostile environment case. and only defense was not a'T.lilable to the City because it had where there Is no tartgible job det riment. There failed to disseminate the policy to all of its employare no available defenses to quid pro QUO harass· ees (or in the alternative "keep track or' its superment or to hostile environl'Tlent harassment that viSOrs), and it had failed to include a reporting affects the victim's employment st:.tus. In 5uch procedure in the pOlicy allOWing the complaining cases it Is irrelevant whether the employer m.,inperson to bypass the harassin!!: superv,sor. tained an anti·harassment policy or whether the victim complained to managemenl. Practical Step. to Comply wIth Th ••• Although il remanded Ihe case b.1ck to the district New Ruling. court without nlling on the faCts of the case. the Under the new standard. an employer with 15 or more Supreme Court noted lb.,t Hurlington could attempt to employees must be prepared to show that It "exercised defend Itsclfby prO'Jing that Ellerth never sought assistance reasonable CMe 10 prevent and correct promptl/ any under the company's $tXual h..1rassment pro(l.rnm. TIle case record hara.ouing conduct. At a minimum. Alabama employers report showed toot BurlillllOn had an appropriate written stXU.l1 MI'lW· that they havt taken or are about to take the following steps: ment policy. and trot Ellerth IIdmitted she WiI$ aware of it but J. Adopt II slllndani higher Ihl n the legal one. BeC.1Use the claims ~ was unsure ..... hether it was enforced and fe.lred retaJia· Court held that an employer is vicariously liable for actionable tim. TI,erefore. Burlington \\!iii have to demonstrate tll.lt it would have quickly invest.g."Ited and taken corr(dive llC!ion if Ellerth had Complilined. If BurlingtOll can establish thi~ pmt of the defense. CLASS ACTION ADMINI S TRATION then the fact tb.,t Ellerth failed to take adv:U1tnge of the prOiectiOl15 In the workpl"ce sl10uld b.lr all Iiabilil)lllnd dltll.,ges. Faragher If, City of SOCII Aaton In the FarogJwTopinion, handed down the &.1 me day II~ £lIe,III, the Supreme Court provided further guidance con· cerning what conduct cOt\~ti tute$ an actionable hostile envi· ronmenl. The plaintiff. Beth ~·lIragher. was employed during the summer 115/1 rart-time lifeguard for the City of Boca Rillon, ~· Iorida . (rom 1985 to 1990. During her employment Faragher was 5upervised by Bill Terry. chief of marine 5.1fely. and t.wo marine safet)' lieutenants. I):.vid Silverman and fl obert Gordon. I~ewe r than ten percent of the 1if~"tmrd s Oil the City's payroll were women at the time. The Courlnoted the district court'~ conclusion thai the two supervisors repeatedly touched the badiu of (emale employees without Invitlltion (including 011the buttocks). 1Th.1de gestures imitating var· ious sex acts. told female emplo~es Ihey would like to have sex, and made "crudely demeaninlf comments to women. The Court concluded Ihllt this conduct was Msevere and persuasiveM enough to establish /I hostile work environment claim. The Court furth er ruled that lhe fact that Faragher resigned In 1990 without complaining 10 city mllnagement. and therefore the city h/ld no way of knowing she had been harll$5cd. did not negllte the city·s liabilit)'. The Courlalso rejected the court of appeilis' nnding thal the Cily could not be held lillble under basic tlge l \c~ prindples because the two supervisors were not acting within Ihe scope of their employment when

Settlement Notice Admlnlstrntlon Call Center Assistance

Address Tracking Service Clnss Member Data Base Mainlennnco Claims Form Handling Settlemenl Benefrt Disbursement

JANUAn. 1000 I U

h~ril.wnent cilused by il sllPerviror, Jerry Kirby, human rcsource~ legal toun~cl for ProffiU's, Inc., advises employers

Because a person's direct supervisor is often the alleged to harasser, every employee should Dc given the nllme and contake"a zero tolerance l)Osition on hIlrMSment." In other words. tact information of at least one <lddition<ll member of man<lJl.emllnagement must avoid ml,1I aclion which could arguably be ment, prefH~bly a scniQr-level m.m.,~er, Whenever possible, construed as hara.,smenL 1(lrby says his company deals with the multiple chnnneis of communic,ltion should include at problems lit a very early stage, "before the conduct even comes lea.st one female mn"nger to whom employeH can feel free to close to the harassment stllndard," The Elterlh and bring a complaint. This will help reduce the anxiety com/<'tl r(l,9I1er decisitms are evidence that the leg,11 standards ~~..... monly associated with reporting problems ofa private are constantly evolving, The only wayan employer, or embarrassing nature to persons ofthe opposite especially a l<lrge employer, can Quickly respond to sex, ~~mp l oye rs may also wish to consider setting new Tu1ing~ withOut unduly disruptin!l; its b(lsincS5 up a toll-(ree telephone number which employees is to stay ahead of them, II good anti-harassmcnt can c<l112-1 hours a day, seven days a week, to file I>olicy will include both the leglll definition of a complaint. Brad Hale, group vice' president, hllrassment as ....·ell as concrete extunl)les of proh~lman re$Ollrces, al H ca lth So~llh, cautions hibited verbal. physical and visual misconduct ernployeu, however, that a complaint hotHne lind llnprofessicuaJ behavior, At the same time, an will never replace the t, ..ditionnl complaint and employer should not attempt to define in its poli. grievance procedure, "llea lthSoulh uSC~ the cy what does/Jol constitute sexlial harassment: hoLline as a fall blick," says Hale. This is due to otherwise the employer runs the risk or cre<lting a the (nct thM HenlthSouth's hotlim is not set up loophole in the policy. to handle sexual harassment issues exclusively, In addition, one or the main difficulties with II com· 2, E5tllbll5h II written polley, The EEOC as well as plilint milde over the telephone is that the caller wi11 the COLlrts have long counseled employers to promul. onen wish to remain anonymous which makes it gate a written polky prohibi tinJt harassment. The much more difficult, if not impossible, to properly invesSupreme Courl'$ recent decisions c1cville these basic pretiQate., cautions to a mandlltc. Although it made cle.,r that a form~1 written policy 15 not absolutely required, the Supreme Court in 5, Enforce your policy, Employers should make clear to thei r Faragher stilted thM such 11 document would constitute "a $ig. employ~e5 th,.t lInyone who enJlages in prohibited conduct ni(;cant (lIctor" in meeting the first element of the employer's will be subject to di$ciplinnry action, up to .md including defense. The Court le(t open the possibility that an em]lloyer Immedi .. te dismi$S<.1. In ~ddition. there should be equally with a small ....'ork force could theoretiC1llly communicate il5 severe consequences for anyone fOllJ\d to hllv/! retalil.tcd policy and implement a sensible complaint procedure without against someone for reporting po~sib le harassrnenl. On the hilving iI written document: however, the Court also seemed to other hand, anyone-who uses the anti·harassment policy to sUJl,tlesl that sllch an employer would have the more onerolls bring frivolous complaints against a supervisor ~Iso should be burden of constnnt ly "monitoring" its supervisor's Dchilvior, reprimanded, Since the majority of clWned employers ha~ a written policy, 6. Olsaemlnate the I)oiley 10 every employee, The importance it seems clear that anyone whl) chooses not to adopt one will of communicating and enforCing lhe anti·harassment polic)' be hard prused to ~hO\v it e~e rdsed "rea$On,.ble care" to precannot be overemphasized, Too m~ny employers sli11 mllintain vent and correct hllrassing behavior, their policies only in management binders or on corporate 3, Retllace your existing Aexual harau menltlOlicy with an office shelves, The anti-harassment policy shou ld be issued to an tl · hara ~a m(lnt polk)" 1'ho~e em pl oyer~ th .. t have not alre .. dy each employee. In addition, each employee should be required done so should updllte their sexual harassment policy to proto sign a paper copy of the policy or .1 receipt ndmowledging hibit all forms o( unlaw(ul harassment, not just sexua1. The that he or she wns given .1 copy of the policy, Employers EEOC and courts recently have applied the snme legnl princishould rei~sue the policy to .,11 employees on ., periodic basis. ples developed in sexualllllrilssment cases to harassment 7, Establish i n vc~ l l gall on gulddin e~, lypicnl investig~ t i(m claims based on race, color. creed. national origin, disability, protocol requires that nil compl<lin{J be ch<lnneled to a cenor age, In his dissent in both £{{(Irlll and I-'oragh(lr. Justice tralized plnce such as the tmployer's hum,1I\ resources departThomas points out that this new (ramework (or hosti le work ment. Itlllso provides a timetrlble for reporting hllra~~ment, ~nvironment claims will be easily extended to claims o( beginning and completing an investigation, lind responding to hllrassment bnSl!d on race or niltional oriA:in, Sever<lliower the compininnnl. I..lluta Hayden, senior vice-president, human courts have nlready done so,, The new 5tand<lrd for liability resources, at Bruno's, Inc" stresses the importance of conwill also very like!y be extended 1(1 ~ ti!tutes beyond Title VII, ducting the investigation immediately, "Normal ly Hit gets such as the Age Discrimination in Employment Act. since the involved the same dilY the complaint is received,~ says I'layden, Supreme Court's reasoning was based on the authority of a Investiltators tit !jnmo's generally interview the complainant supervisor in the workplace more than on lin)' specifk legislllwithin 2-1 hours, and then interview the alleged harasser and tive mandate in Title VII , IIny witne~$e~, In addition, I lale rCC()111mends the. practice at 4, Ilevlew )'Q Il T coml)laint and grievance ]lrocedurt8, AnLiHcallhSouth of "$uspending the alleged haramr pending the harassment poliCies should contain lin effective mechanism La outcome of the IrwestigMion." Finlllly, all cl",pIQyer should $c lgive employees alternative avenues (or reporting harassment. dom promise absolute confidentiality, At mosl. an employer

MARKER HONORS ALABAMA STATE BAR

t>lonroeville, commemorating Ilarper Let'S 7b Kill A Mockingbird and the importance of its mai n character,

Al\ icu$ Finch, to the le~l profession. and Ilunl$ville, hon· _________,-_ , orinj:! the stale's first constitution and

he Alabama State Oar now has its own historical

marker highlill:hting events in the e~tablishl'nel'Lt of th~ bar in Alllb..1ma. An unveiling and prescntation were held Decel'nber 4.1998. jU$t prior to the reguhirly $cheduled meeting of the Bffilrd of Bar Commi5Sioners. IJirmi nghatll attorney and chair of the bar's llistory and Archives Comnittee Sam Rumore made the presentation. The Leltll folilestones Program recognizes importaJIt tll$('~, events or personalities in Alabama's legal hislory by placing bronze plaques lit designated sites. Current sites include

can assure the complainant that every reasonable effort will be made to respecl his or her privacy. 8. Conduct regub.r EEO and lexual hal'llu menl lralnlng. When 11 supervisor's conduct is at issue. courts will no longer focus on whether the employer knew or should ha~ known of the conduct. Ralhu. in a case involving a hostile cnvironment created by a SUI)ervisor that dot$ not culminate in a tangible employment action, lhe (ocus will be on the c mpl oyer '~ pr()Cedure ror. and response to, complaints, All eml)loyers ~hould therefore update their traini ng regimens (or supervisors and. if fea sible. non·supervisors as well. Agood training program typically takes at least one to two hours lind would discuS! what constilules lurassment, and how to prevent it , and review the contenb of the anti-harassment policy and the proper procedures for filin g a h"rassment complaint. The company should provide additional Ir"ining to designated managers and suptlVisors (e.g.. human resources directors) on how to investigate haraument complaints and take corrective action. The programs should emphasi7.t the need 10 show employees respect and to remind SUI)ervisors lhat they clln be found personally liable under state tort laws lInd the new Violence Against Women Act (VAWA), See l)radl!ll lJ. Piggly Wiggly (M.D. Ala. 1998). ~'or larger employers with multiple locations like Pro(fiU's, Kirby suggesl5 conducting "train the trainer" courses and developing a "canned" seminar complete with video and handouts that can be sent to a particular location and used by the general manager as a refresher course on an aJ·needed basis. 9. Thke prompt lnd erfectl\-'e remedlal .cllon. Bruno's lYies 10 take appropriate corrective action within as short a ti me frame as possible, IIsulllly no more th ~ n seven to ten days aft er the complaint was tinl reported. "Many complainl5 arc resolved even morf quickly," stilled Hayden. \Vhile the victim is not entitled 10 decide whalaction will be taken, his or her wishu should be taken into consideration, To Ilvoid claims of

~tatehood .

The

~l o ntJ!o mcl')'

marker 'lilth·

liltht$ three ~iflnific .. nl daIC$: the estllblishmcnt of the 5tnlc b;n in 1879: the adoption of the code of legal ethics in 1887, making ,\llIbama

the fi rst state in the country to do so and providing the foundation for the

canons of ethics later adoPted by the American Bar Association and other 5tates: and 1924, Ihe year that the bar became a mandatory bu with rules to rcRulatc and Itovcrn the conduct of atto rney~

in Alab;tma.

•

retaliation, lhe victim should not be required to transfer or to change jobs to resolvt the situation. Atlhis ~ tage, it is also II good idea to reaffi rm the employer's I1ntj·harnssment policy ....ith all employees i nvol~d in the in\"e5tig3tion. including the zccused. the accuser and any witnes$es. Copies of the policy should be distributed to such persons as II IlkIller of course. Under appropriate circumstances. immediate training is recommended. The investigation and corrective action !.. ken should be well-documented and the documentation kepi in II safe area. Employers must be prepared for lhe fact that raising U,e new tlffi rmlllive defense wilillkely open Ihe door for the plainti(f to seek broad discovery of any and all documentation related to the investiglltion and deciAion.making PI OCts!. To what extent the courts will allow require employtrs to pro· (llJce records relating to prior internal investiglltions remains to be seen. 10. lo'ol1ow up. The employer should always (ol1o\\-up with the hi\rassed employee aner remedial action has been taken to make sure thOlt It was effect ive in resolving the harusment. The follow-up Iluestions (including any feedback) 115 well as any periodic monitoring sholJld be well document ed , •

Endnot••

I no. O!hfr two u.s. &.opr-.rr. ecu.I dI<:WonI not dlJcuued In """ .,*", All """"~. ~ ~ ~ 118 S.Ct. _ (IIMM1) (1IOIdirI(j "'" r..VM _ _ ..,...._ _ ..... ",,,_",,,") V(I OtI:w!'toI • • Ugo ~ ...... NMr~ SdtoOI OoIJrict He>. IIlIIMI) (1'ICIIrIIng. IC!!OOI ~'Ic1_ not "-lIlt lor • l...:Nr'a _11M ............ 011 t1\Jd1r11 ....... I .".. diIIrIc:I dIIcMI _ lilt -.oriIy 10 ""blVll ~ _ _ ~ MPOuIIIICI _

"'Me

Iw;JdIe<wnIID !he ~ 1IdIono)

IN 0,""'" , .My 10. IlIIMIl eourl-'1nI/ysII1O rKIaI """'1..-... !he "'" judvoo In

2 8M. Ig . 800Ur •. ~ AoI<!J,A..CMS¥"1ImI. ~ppIyIftg lilt Suprlml

EJooq'fUie<llIItl auGgel WH vV.rIoulliAblliljl

or_'td 1,0tI' atH'!lnQ In 1III,,..,1Yt <l6I6r'rM

"filii"" for ,'''' 8Q1'1'1 b\I • 0f"II,.1 ""'MOt< bl<:aUM IIYdgooI 1&11ed to IlfOvtIIl

raclaIl>I"'llIJI\tI1l 01_ 01 "1 II1II1l1li fnIIII· dOIl,lbuled III tIlIl.IIIII","""" POIIc\IIO ""IIPIO,_ JII\d Jfllf<lto Jl!'oYt 'lllal mIIIIfiI'II,.,...".w, NCeIwd !he kind 0I1t~ wIII1 '"f*:I lg _ _ I 01 ,~ ,*,,,,"*,,,.

THE NEW LITIGATIVE ENVIRONMENT: Defending a Client in Parallel Civil and Criminal Proceedings By Anthon,l/ A. Joseph and R. Marcu$ Gillhan

Introduction

You h.'we jU5\ returned from it much路 needed vacntion and th ~rt i$ an ur~ent message on your answering machine (rom lvll Hundelit. irt-houM: COul1sci for

XYZ Hellith Care Providers. You immedi路 ately call lvii, \\.ho proceeds 10 tell you how much (un he's hlld over the past tWQ weeks. Things 5tarted to happen when the m;mager of one of XYZ's facilities called Ivll and Informed him that investi路 gators from the United Stales Department of Health lind I-hull,m Sfrvices had jmt arrived, unannounced. lit the facility. TIlt manager stated that

the Investigatols had an "IG 5ubpoena" (whlltcver lhlll was) llnd were demanding thllt XYZ produce nil of Dr. Crook's

patient files and 311 supporting documentation for Dr. Crook's "consultation fces.~ Ivit informs you that he instructed the manager to tell all employees to cooperate fully with the investigator.; and to aosw<!r any questions they might ha~'e. You interrupt Ivil and ask him whelher ht has /I COpy Qf the subpoena. Ivillell5 )IOu that he received iI copy of the 5llb~nl1 I'.'hen the investigators c<lme 10 corporate headqulirter5 to speak with XYZ's CEO. You ask Illi i. "Whnt questions did the investigators

ask the CEO?" Ivillells you that he was nOI prtstnl during Ihe intelView, [villhen tells you that Ihe firCW(lrk$ really stMted whCrl 30 liB! agenl$ executed a S('arch warrant Ilt one of XY7. '~ other corporate facilities. None of the employees at the (licilily hlid any prior eXI)Crlence with an FBI agent. Nany of the cmpl~es talked freely with lIle agents, in an effort to allQid eYen the slightest 5ugge5tion that they had anything to hide, You ask Ivil whether he obtained a copy of the Sl!arch warrant. Ivil informs you that he did gel a copy, but has nol had an opportunity to re:rd it. While [llil is describing th b nighlmllre, you recall that several months ago IlIiI asked )lOu to gille him a legal opinion on a sensitive antitrust iu ue, You recilli sending lvil a confidential attorney.client memo reflecting your leg.ll analysis o( the issue, Hoping (or the best, and expecting the worst, you ask Ivil whether he took any steps to protect privileged atlomey-dicnl documents when the FIJI allents \\'ere searchirlg the XYZ facility. Ivil lells you thlit In the midst o( all the excitement. it neller crossed his mind. You then slowly break the news: it appears that XYZ is embroiled in paral-

lei civil and criminal proceedings. In other words, the corporation, its directors, its officers, l1nd pos1ibly a few key employees could be (acing clllil penal. ties, fine~ and exclusioll from the Medicare pro"rarn, along with criminal $<ll1ctions thlll could include restitution, forfeiture, (elony conlliction$, and jail time. Once lvii's brelllhing pamrn Sl!ulu back into a normal mooe, he concludes lIlat he is going 10 hlllle to speak with the board o( directors about Ihese parallel proceedings, Before deling so, he wants you to provide him with some guidance on the (o1lowinll issues: (1) Are parallel civil and criminal proceedirl~ common? (2) Is it constitutionally permiuible (or the gO\IC:mmcnl to pursue parallel procudings? (3) What triggeT! parallel civil and criminal invutigations? (4) What should II company do when confronted with grand JUT)' subpoenas, search warrants and other COIItacts by government investigators? (5) \lJhat <Ire the rights and obligations o( a comp.111Y'S directors, officers, and employees during p<ITalld investigation~? (6) Arc there .my fundamental iuues that arc o( particular concnn during pllrallel proceedings? (7) lIow

can a company reduce its chances o( civil and criminal txposure? I)ue to lime constr",ints, yOu tell Ivil that you have only an hour to speak to him about parililel proceedings, but think you can /olive him a sumcienl overview 10 facililille his Aeneral understanding of the process and prepare him (or his diKussions with the board o( directors, Background: The New Lltls.llve Environment In what was characterized as the "new litlglllive environment" in the proseculion of white collar crime. United Stlltes Attorney Ge~ral hnel Reno, in l\ memorandum circulated to all U_S_ Atlorney's offices and Department Litigation divisions. launched a new ini路 tiative (or coordinated u~e of parlll1el criminal and civilprocccdinils. (Nml/Qr(llll/um fyom Ihe Allonwv Cem!y(lllo fill/ural AIIOnre!lJ. July 28,

1997). Emphasizing the need to use resources efficiently, the Attorney Ceneral stated: The challenge requIres greater cooperation. communiClltion lind leilmwork between the criminal lind civil prosecutors who are often conducting parallel investigations of the same offenders and matters . . . . In order 10 maximiu the emcient use of resourcu. It is essenti:.llhal our attorney! c()f)$idtr whether there nrc investigative steps c.ommon to civil and criminal prosecutions. :.nd to agenc.y administtativt adions . .. Accordingly, every United Slales Attorney's o(fice and each Dfpartmentl.itigating Division ~houl d have a sy~te m for coordinlltIng the t rimin:.l, civil and administrative lIspects of all while-collar crime mailers within the office. Id. Although it is not yet clear how

many federal pro.secutions will ultimately be conducted as parallel proceedings, this "new litigiltive environment" fo reshadows the Itovernment's use of a broader, more altltre5sive riltlge of statutol')i and investigative tools than was used in the past to prOllccute white COIiM crime, While Ihe federal gOVfrnmenl has exprused an increased focus on all while coll:.r c rimin~ 1 m~tters, consider-

able funding hilS Ix!en filTmarked toward eradicllting, or at least reducing to an appreciable degree, health care fraud, (FBI Report 10 liou5e Ways and Me:.ns Committee, Oc.tober 9,1997). In 1996. Congress enacted lhe Health Insurance Portability ilnd Accountability Act (" ltlPPA ~), which contains many new atltl-frllud-lind-ab\l$e provisions and enforcement tools. Congress established a Health Care FrJud and Abuse Control aCCOUI\! (Section 20 I(b)) to fund these investigative efforts. (Pub. 1.. No. 104 -9 t. 110 Stat. 1936 (1996)). In this regard. $548 millioo has been appropriated to the FBI over the next sewn )'tau (and 51 14 million each year lhereafter) for health care fraud enforcement. Will Report. supra). On the local front, Alib:.ma Attorney Cenerall3il1 Pryor recently :.nnounced thai his office 11150 IntMd~ to prioritize white collar crimi nal prosecutions by fo rming a new white collar crime enforcement division within the Attorney Ceneral's officr, The new division WIIS created primarily to attack fraud committed agilinsl lhe State of Alabama. Under lhis new slate initiative, Attorney Generall'ryor is seekinll passalle of a ~crimina] fraud bill" to give his new division the weapons it needs to combat white collar criminal maHers, especially in the area of government fraud. (Attorney General 1991 Press Helell5e). Alilbama hM also benefiled from the IIiPPA funding account. The Attornty General's Hedicaid Fraud Unit recently receivtd II 5232,700 grant from DOl and lUIS (or the exclusive purpose o( invesligating and prosecuting Med icaid fraud. Not."lbly, whil~ the fcderal government's use o( parallel proceedings is on the rise, lhe invcsligMiv~ trends appear to be headed "to,,"'lIrd a coordinat.ed investigation by task forces composed of federal and state investigators. (Buey. Health Core fraud: Criminul, Civil aM Admhlislruliue Law), M

Constitutionality A, I'arallcl Proceeding, ~re Con,Uiutionally I>ermln lble In Uniled Siules II. Korcld, 397 U.S. I, 10 (1970), lhe United States Supreme Court confirmed that. in general, parallel civil and criminal proceedings are constitutionally permiSSible, Iloling that

"lilt would stultify enforcelTl拢nt o( (ed路 erallllw to require a governmental agency, , , invllriably 10 choose either to forego recommendation of ~ crimin(l] proseclltion once it seeks civil relief, or to defer civi l proceedings pending the ultimate outcome o( a criminlll trial." A5 long as the government has not initiated the civil action in "bad faithH-that is, for the purpose of obtaining evidence for ;ts criminal prosecution-1lilrilliel proceedings art permitted b)' the Constitution, See United Siale.f II. TisolJ. 780 ~:2d 1569 (11th Cir. 1986) (finding that it is improper fo r a governmenl to institute a civil action 10 generate disCOVfry (or II criminal case). 8. Ihldsol/

II.

Ullited Stotes: No Double

Jeopardy

The Double Jeop.1rdy ClllU5e of the United States Constitution provides that no person Ml sh:.IIJ be subject for the same offense to be twice put in jeopardy of life or limb: U.S. Const., Amend. V. The clause "protecl& against three distinct abuses: a second prosecution fOr the same offense after aCQuiml: a second prosecution for the same o((ense after conviction: and multiple punishments for the sam~ offense." Unilcd Stall'S IJ. Nalper. 490 U.s. 435, 440 (1989). By their vtry nature, paraliel criminal and civil proceedings would 5eem to be vulnerable to Double JeoplITdy challenlles, particularly to chal1enge~ that the government is seeking to impose multiple punishments-crlminal and civil- for the same offense. A recent United Slates Supreme Court declslorl, however. effectively closes tht door to such challenges. [n NudwII /). United Siules, 522 U,S .. IJ9 1..J::d.2d 45Q, 458-59 (1997), the Court re-/lrnrmed thai the I)ouble Jeopardy Clause "protects only ag.1inst the Imposition of multiple criminal puniShmenl& {or the same offmu and then only when such occurs in successive proceedings. (emphasis added) (Citations omitted). The Court then stt forth II two-step analysis for determining whether II particular punishment is criminal or civil for purposes of the Double Jeopardy Clause. Under fludson. a trial court "must first ask whether tht legislature, 'in establishing the penalizing m~chanism, indicated either expreS5ly or impliedly ~ H

~ANUAII~

, QUO , 4 0

preference fo r one Ijlbel or <mother.'" 139 LEd.2d at <1 59, quollllg United Stales I'. Wart!. 448 U.S. 242, 248 (1980). In other words, did the legislature intend to establish a criminal or a civil penalty? If the legislature intended to establish a crimi nal penalty, then the penalty is subject to the Double JeoPilrdy Clause witnol,Jt fl,Jr\her Malysis. [f 1he legislature intended the penalty to be civil. however, the courL musL inquire further. The court !llust determine whether the penalty is "50 punitive in either purpose or effect" as to render the penalty criminal despite the legislature's intent to the contrary, 139 l...ed.2d at <159, The Supreme COllrl identified the (ollowing factors lisled in KelllJedy Y. N erl(R(I-Narfillez. 312 U.S. 1<1<1 (1 963). as providing "useful guidePQsts" for makmg th i~ determination: (1 ) whether the ~anct ion involves an affirmative disabil ity or restraint; (2) whether the !.,nction has historically been regarded as a punishment: (3) whether the sanction comes into play only on a finding of scienter; (4) whether the operation of the sanction will promote the traditional aims of punlshmenl- retriblltiM ;md dl:terrenee; (5) whether the behavior to wh ich the sanction appliu is already a crime: (6) whether ,In alternatlve purpose to which the sanction may ratIonally be cOMeeted is assignable for it; and (7) ¥,'hether the sanction appears excessive in relation to the alternative purpose assigned. Hudson, 139 L.ed.2d at 459. The Cou rt cautioned that "only the clea rest proof' would be suffi cient to override le~isl;ltive inlent and transform an intended civil remedy into a criminlll penalty. Id. For all practical purposes, the lIudson decisi()n means that p!lTallel civil and criminal proceedings will rarely. if ever. violate the Double Jeopardy Clnuse. except in the rare case where "the clearest proof' establishes that a civil statute, on its face, imposes a penillty "50 punitive" that the penalty is rendered criminal, the Double JeopllTdy Clau$Il will not be offended. l-Iud.~(}I1,

P.r.llel Investigation_ A.

S OOTCC5

of the Inve5 tl galiun

Parallel civi l and criminal proceedings can be generated from a nu mber of sources: (I ) False Claim lawsuits: (2)

media reports: (3) audits; (4) complai!lt$ obtained (rom governmental hotlines: (5) Congressional inquiries: (6) tips or complaints from competitors: nnd (1) interviews with current and (onner employees. (~;ffecliye Corporate Compliance Programs (or Health Or!lani7.ations; see Bucy, supril.). Any of these $o urce~ may Sput an industrious agent or prosecutor to pursue parallel proceedings 1Ig.,inst II deferldllfli. False Claim lawsui ts, in particular, oft en lead to parallei llroceedings. Strengthened during the I~eaga n administration. the False Clai ms Act. 31 U.S.C. § 3Tl9 el seq.. has emerged from over a century of neglect to become one of the government's most potent anti-fraud we'l[JOns. In II Ilill ~e Claims Act ~ ult (Ill$() known as a "Qui Thm" suit). a private plaintiff brings an action on behalf of the gove rnm~nt against an Individual or entity that is alleged to have knowingly defrauded or conspired to defraud the government The pl.lintiff who successfully prosecutes a False Claims Act suit on behalf of the go\'ernment is entit led 10 at leasl l5 percent....lnd may be awarded as much a5 30 Ptrcen\-()f the 101011 government r~covery. 31 U.S.C. § 3130(d). [n addition, the plaintiff may be clIlitled to recover m orlley's fee~ . expenses and c05ts. /d. The potential recovery alone is more than suffic ient to produce legions of "private attorneys general." Such plaintiffs oft en come from the ranks of current or former employees. who may be motivated by conscience, by antipathy toward the employer. or by a simrle desire to 5hare in the proceeds of any rCcQ\lcry.

I>ocnas: (4) civil investigative demlinds interviews with current and former employees. Defense counsel and their clients should also expect greater use of more sophisticated irwestiga\ ive techniqllcs sllch a.~ undercover operations. electronic surveillances. and computer progrtllns desigl1Cd to screen Medicare claims. (8ucy, supra). The government not only has the we/lpons, it also has the element of surprise- the lUXUry of knowing when, where, how, and what level of force to use in investigating the matters under consideration. Acco rdin~ly. it Is ("eID·'): and (5)

e~tremely import~n tthllt tmployee~ IIrt

fully apprised of their dShli and obligations with respect to responding to subpoenas. ~ea rc h warrants. and conlaCli by government agents. I. Gr:rnd Ju T')'

S ubpoen~

The grand jury is empowered to issue subpoenas requesting te5timony or production o( documents. The fundamental purpose of the grand jury is for lhe enforcement of criminal laws. Uniled !jfafes II. Sells /:"lIg., Inc., 463 U.S. 418, 435-42 (I983). Therefo r~, as a gene,.,1 rule, the information obtained pur~uant \0 a grand jury sub[J()ena wm be availIIble oilly to the crimillll! investiglllion, and not to the civil investigation. absent a showing of" "particularized need." Sell Ilule 6(e)(2) of the Fed. R. Crim. P.: United Slates /J. Sells, supra. On the other hand . it is permissible to use the information subpoenaed by, but nol presented to, the Ilrand jury in a civit Paise Claims A(.: t cilse. United Sfufl!$ u. £ducuf!Ollal DeueiOPtni!l1f Network Corp .. 884 r.2d 131 (3d Cl r. 1989). cerl. df!llied, 484 U.S. 1018 (l990).

8, In\'utlgaU"e Tool8

Defense counsel should full y expect Ule government to take advantage o{ all available investigative tools in this "new litigalive environment " The ultimate goal o{ D01"s white<ollar crime enfo rce· ment initiative is "to use Ihe !lavernment"s resources as efficiently and effeclively as possible in order to punish offenders, reCQver damages, lind prevent future misconduct" (Allomey Ceneral's Memomndum. July 28. 1991). To this end, the government's inventory of investigative tools includes: (I) grand jury subpoenas (for testimony or for documents): (2) search warrants: (3) Ie sub·

Once a subpoena hall been presented. cOUllsel should be contacted as soon liS possible. Counsel should immediately determine whether there are potential connicts and whether addition~l counsel is needed. This is especially true where sl.>veral members of a corporation have been subpoenaed to testilY. An initial conversation with the Auistant United States Attorney /lSsig!led to the case could help clarify whether separate C[)unsel is needed for individual offi cers or employees. With rcsl>cct to requests f()y documents. counsel should follow a pre-designed procedure that the appropriate personnel \Ire prepared <lnd able to implement.

2. Search WarT;ln( In mOSI casts. the largel has no advance warning that agerlt$ are in the process of uecuting a search warrant. Most people have had tittle or no experience with federal agents. Intentionally or circumstantially. this unfamiliarity creates trepidation on the part of unsus· pecting employees: a$ a natural conse· quence of these unfllmiliar circum· stances. emploYff' often feel preS.$ure to conform, which is not lilways in their best interests. Educating employees about thei r rights and obligations duro ing execution of starch warrantJ and other contacts with agents will make the experience Iw intimidating and will further enhance the prospect o( preserving all right$ and privilelles. ru II general instruction. an)'Qne con· (ronted with II search warrant is obli.lt<lt. ed to allow the agents to Ullrch fo r the specific items in the locations Identified in the search warrant. but is not obli!lllted to do anything more. While an employee may not delay or interfere with the se.1Tch. the em, loyee is not obligated to submit to an interview. Without the Ilropcr guidance. employees often feel that they hiM: no choice other than to answer questions Jl(I$ed by the ilj:lents. A word of cauli<:'l: in instructinj:l clients on how to delll with search warrants. it is improptr to advise that they cannot talk to the agents during a sea rch. This could be construed ~ s obstruction of justice. IS/..'C 18 U.S.C. § ISI8-0bstruction of Criminal Investigation of H~alth Care Offenses. which lIpplit$ to an)'Ql1I: who willfully prevents. obst ructs, misleads. or delays commurlicatiOll of information or records relating to a violation of health care offense to a c riminalln\IC~ligll\or.1 COTl)()rate counsel may, however, advise employees that. due to the serlo u ~llc u of the allegations of the Investigation. the company would prefer that any employee who decides to speak with the in\li!Stiglltor5 has counsel prestnt. Some basic instmctions rej:larding search \\'arrants are a~ follows: • Conlact cllun~elll11l11edID'ely: • Obtain a copy of Ihe uarch wllmnt: • Identify the agents (partlcu larl), Iht lead .gent) lind the lI!fency Involved: • Respond only 10 the specific items ldenUned In the ,earch warrant:

• One or more emp lo}~u . hould be aulgned 10 take detailed noles of the agent,' Icilvilie. during and after the search: e.g.. rooms searched. Items tnken r ql1u tlons asked. and length of search: • Obtain Ncelpt or CO(IY of hwento!,), for all property taken; • l'ou do not hive 10 talk to the agents unle.. you want Io-the ,earch warnnt only ",quires the agents to lurch certain areu and 10 lake t)rOllerty, it don not authorize Ihe .genla 10 conduct Inve,ti.llative Inler· view.: • If you decide to Ipuk with the .gent •. )'<Iu ha\'e tht right 10 have cOllnsel present: • Do not Interfere with the agenls' search effort .: that I•. do not mislead. hide or dllcard doc ulll e nt ~ or delay In producing the It(lm. Identl· fied In the Jellrch WIl'1'lInt: and • If }'Ou decide to speak with the agenb. your reltlOnSes must be InIthful.

See. fl.g.. /In:Jg(m I'. l/nit/..'f/ Stutes. 1998 Lexi! 648 No. 96-1519, 11 8 S.C!. 805 (1998). In Brogan. agenl~ from the JI~S and the 1)cpilrtment of l...bor contacted Bl'OIlan at his bome and sought his cooperalion in an ongoing investigation. Brogan "IIreed to spt..lk with the agrots. The agents then specifically asked him \\'hcther certain real est~t e comp.lllies had ever p.lid him or given him IlHb. BrOQiln told them "no." Unbeknownst to Brog.l n, the agents had already Iktermined It''lt he had in f:w:t received gilt!. Bl'OlllIn declined 10 change his al1S\\'('t. A grand jury subseQuently indicted Brogan for m.1king II false statement under 18 U.S.C. f 100 1. Hrog.1n argued that his general dellial n()V,ltd oul o( his right aga.in~t self·incrim· ination, which sho\lld not provide a basis for II false statement charge. This argu· ment traditionally is refured to as the "exculpatory 1'10" dl)Clrilll:. In rejeding the OOclrine. the Court held that \\'hile the ~·ifl.h Amendment privillgc Is available to any person III any time, It is not <l "privilep:e to lie." The privilege only allows the individll<ll to ilvoid incriminating himself by staying silent. {d. 3. Ie SlIbpoena The Ie suboocna requi res the target to produce "information. documents,

reports. ans\\'ers. records. accounls. Pilpers. and other data and documentary evidence 5 U.S.C. App. f 6(11)(4). The information obtained pursuant to this subpoenll may be used in civil. criminal. lmd administrative proceedings. See US.

I'. f.'ducuti(mof De,'. NefWQrk Corp.

884

~:2d

737. 740·44 (3d Cir. 1989):

Uniled Sloles tl. Aero /IIuyflOftoer Transit Compal'l/, 831 F.2d 1142. 1145 (I).C. Ci r. 1987).

4. Civil In\'e.tlgatlve 1)emlll,d (ellJ)

Pursuant to a CID, the OOJ hilS the right to dem,md documents. IIllswers to interrogatories. and oral testimony. 31 U.S.C. § 3733(.. )(2)(0 ),( 0 ) (False Claims Act): soo also 18 U.S.C. , 1312 (an lil ru ~t ) and 18 U.S.C. , 3486 (H1PPA). Tht requested Information must be "relevant" to that particular a!leneil investigation. Un{h'(1 Sla/e$ I). Nurku ood. 48 E3d 969. 977 (6th Cir. 19951. 5. Responding to Requu ts (or

llocumeni8 With respect to responding to rC(IUe~ t ~ for documents pursuant to grand jUry suboocnas, Ie subpoenas or ClOs. lhe foll owi n~ paints should be considered: • Review the requul ln detail: • Locate the d(leument.: • Identify re~ pon Jl bl e . comj)Clcnt cuatodlan: • Or.llanb:e, auemble. B ~tu , tamp and index all rele\'ant documents: • Make copies o( all documenls produced: and • ":nsure th.t altomey.cllent and work product privileged document. are properly t!rolected. S(.'C UlJjolm I). Ul'llftJd Slulc$. 449 U.S. 383, 394·395 (1981). Ai a practical matter. in most Instances it will be: difficult 10 convince the agents that certain documents should not be taken becaust': of the attorney-client or work prodLlct privileges. If U,e agents Insist that the documents are due to be taken, there are a couple of approoches to try: (1) ask the lead agent not 10 review thme p3rticular documents and to place thme docu· ments under seal for a court determination. or (2) speak with the AUSA in ~ANU.nY

,QUO, M

c.harge Qf the invcstig.llion ~nd make the same request. If th05e appro.lchc5 fail . c()ull ~t l shOuld tllke immediate steps to request a court review, identifying. if at all posJibte, each document and citing the reasol1 why the document should be protected. 6. IntervlewAWith

1~ lII plo'yeu

Interviewing former or current empl(Jyee~ i~ one of the most basic-yct most eKplosive-nle;m~ of obtaining a bird's-eyt view of lhe practices of :l!ly company. ACOml};!I1Ycmbroiled in a parallel proceeding should (ully expect that if its employees have not already voluntarily submitted to an intervie",'. at some point the investigators will attemplto either interview lhe employees durinll the course of executing ~ 5C11rc.h wilrranl or contact them away from the workp:<lcc. If an employer decides to educate its tmllloycH about lhe po~$ibility t)f bting contacted by investigators, the instructions shou ld be directed to explainir,g the employees' rights and obligations with respect to such contact. It cannot be overemphasized thllt any instruction directing employees not to speak with agents could be construed as an attempt 10 thwart or deby t.he efforts of the <lgents and r.:ould 5ubjec.t an employee or the comp;II1Yto obst ruction of justice c:h<ltgcs. An issue that frequently arises during the ll\vestigntiorl of a corporntiM is whether prosecutors or agents mlly interview employees without corporate counsel being present. ABA "1odelllule 4.2, which has been adopted by the Alabama Rules of Professional Conduct, expressly forbids comm(mication with parties a lawyer knows to be represent· cd by another lawyer. "bsel'lt that lawyer's corlsenl or by some other fell,,1 authori~lltjOrl.

The commentary to Model Rule 4.2 states that the prohibition on ex parte communications applies to any I>erson exercising managerial responsibility on behalf of a corporation. or to anyone whOse (lcts or omissions may be imput· ed to the corporation or whosc state· I'Ilcnt$ may cOn~tilute a binding admission <llIainst the corporation. Rul£: 80 I (d)(2)( D) of the Federal I~ul es of Evidence allows llIl employe£:'s statements to be construed as admissions

"g.1inst the corporation if the comments concern any maUerwithin the scope of his or her employment and made during the cou r~£: of tht £:mploy£:£:'§ relationship with the coq)Qration. Interestingly. DOf s own irllerr'llli rules are considerably more tolerant of ex parte contact with corporate employ. ees, 28 C.~:H. § 77. 10(01), a rule promul. gated by the Attorney General. autho· rizes ex part.e government contacts with employee5 who <Ire not "controllinR individuolls." The I~egul(ltion ddines a controUirlg Individulil <I~ <lny high level employee who acts as a decision-maker in defining the corporalion's legal [)Osition. It is unsettled whether ])OJ's more permissive standards of ex [l'lrte contacts supersede a state's local rules of conduct for allorne~5. The Eighth Circuit of Appeal~ addressed this issue in Ullill!d Skiles II. McDonTlell Dol/girlS CorpOra/iOIl . 132 1~.3d 1258 (Sth Cir. 1998). In McDomwlJ [)ougla.~. the Eighlh Circuit found th<lt the federal reguilltions on ex p<lrte emtlloyee contacts do not trump local disciplinary rules. It is worth noting that a modification to ABA "lodel Hule 4.2 has been pro· posed. Under proposed Hule 10, prosecutors would be free to speak directly with persons represented by il lawyer if the contact occ ur~ "before lhe person is arrested or charged. or before he or she is rlhmcd as a defelldllnt in " civill"w enforcement proceeding." ABA Journal /.ilIIJyer Elhlcs: (hIe Size Fils AfI?, July 1998. Govemmenllawyerg are seeking this modification to Model Hule 4.2 because the existing prohibitions "obstruc.t criminal and civil investigations, particularly in cases involving companies <lnd Or~l1ni ~'l li ons whe r~ sever<ll people arc represented by the same lawyer." Id. While it is almost certain thllt this proposed rule will not be adopted in its present form (if It Is adopted at all ). the IlI'ollosed rule still points to the government's efforts to obtain additional tools for the "new lit· ig,ltive environment." Concerns of the ClvlllC~lmln.1 Defendant In Parallel Procoedlngs

Unless a defelld<lnt involved hI phr~l lei civil and criminal proceedings is able

to obtain a stay of the civil action while the criminal action is pending. parallel proceedings will inevitably present sevHal interrelated concern~ for Ihe civil/criminal defendant. Those concerr's include: (1) pre~erving the Fifth Amendment privilege 1I1tlinst selfincrimination. (2) ensuring tlmt the broad, liberal discovery permitted in civil actions is not used to further the criminal prosecution. and (3) protecting agai n~t disclQsure of the theory of the r.: riminal defense in advance of trial. SEC v. Dre$SerllldIlS .. 1m: .. 628 1~.2d 1368. 1376 (D.C. eir.). cert. denied, <1<19 U.S. 993 (1980). A. Fift h Amendment As a general rule. the privilege ~gllitlst self-incriminlltion can be maintained "in any proceeding, civil or crim· in"l. administrative or judicial. investigatory or adjudicatory." f(asligar u. Ullilefl Slules. 406 U.S. 44 1, 444 (1972). It is particularly important to nQle thilt in the context of a r.:ivil interrogation. a defendlll\t cannot rely upOI'l n gerler;l! assertion of plc<ldinll "the Fifth." but must instead <lnswer each question that does not involve Fifth Amendment implications. and invoke the privilege as to each question that doel. U.S. IJ. BaM. 807 f: 2d 272, 276 (1 st Cir. 1986). If the Pifth Amendment privilege is not prop· erly invoked in the civil action. the priv. ilege wi![ be waived <lnd the information obt<lined through thl;! waivtr may be u~ed ag1lirHt the dcferld<lnt in the criminal proceeding. United Slaies IJ. Kordel. 397 U.S. I . 11 -13 (1970).,\ witneu should invoke hi s or her Ilrivilege against self-incrimination where there is even the slightest possibility of criminal proseclltion. U.S. IJ. Miranli, 253 E2d 135 (2d Ci r. 1958). With respecllo the civil trial, the jury is Ilermilled to draw an adverse infercl'lce from a dcfl!ndlll'll'S invocation of the Pifth Amendment pri\'ilclle <lgainst sc lf-incrimin~tion. Baxler v. Palmigicao, 425 U.S. 308 (1976). The United States Suprtme Court has long recognized that corpClr<ltions do not enjoy Fifth Amendment protection. Georgo Campbell Paintillg Corp. IJ. R(Jid, 392 U.S. 286, 288-89 (1968); StJfi also /)ellis II. Unil(.'d Slates. 417 U.S. 85 (1974) {finding thai records generated by corporate entities are not shielded by

the privilege against self. incrimination). Conversely, corporate directors and offi· cers are afforded Fifth Amendment priv. ilege. Adirector's or o{ficer's assertion of the Fifih Amcl'ldment privilege at trial can be problematic for the corporll· tion, especially if Ihe jury is il'lstructed that the lldmlsslon may be used to estllblish liability on the part of the corporation. There is a split among the circuits as to whether this is a universa lly accepted rule. Un;fl.'(l Slates II. Single Family Residence, 803 ~:2d 625, 629 (11th Ci r. 1986); RAD Seros., Inc, II. Aetna Cos. & Sur. CIJ., 808 ~:2d 27 1 (3d Ci r, 1986): Brink's, Inc. II. Cily ofN('w York. 717 F.2d 700 (2d Cir. 1983): United Stotcs II. Dislr'iel (AuIISI!I of New York and Vicinitll of the United Bd. of Carpenters and Joiners of Am .. 832 F, Supp. 644, 651 (S.D. N.Y. 1993). Keep In mind that a corporate employee's active participation in an illegal activity can expose the corporation to liability as long as the emplo)'ee llcted within the line of scope of his or her lluthority and the company reaped some bendit. U.S. II. Cincotla , 689 F.2d 238, 241 -242 (1st Cir,). Ctlrt. dcnled sub nom Zero II. United Stutes, 459 U.S, 991. 103 S.Cl. 347 (1982): United Stales II. neusell . 596 E2d 871 (9th Ci r. 1979): Standard Oif II. (}nilc(1 States, 307 E2d 120 (5th Clr. 1962). B. Fifth Amendment'. Application to Production or DoaJmentJ Under the holding in &ms, supra, corporations do not enjoy Fifth Amendment protection. AJ a result. records generated by corporatiOl'ls are not shielded by lhe privilege agIIinst .self. il'lcrimination. Beflis, 417 U.S, at 90-91. Accordingly. neither a corporation nor j(j empl oyee~ may avoid a grand jury subj)()Cna request for documents by asserting thallhe r~cord~ may expose the corporation to criminal liability. In BrasUN!ll II. lJr:il/u/ Slutes. 487 U.S. 99 (1988), the United States Supreme Court explicitly held that corporate CU$todians may not avoid a subpoena to produce records on the ground that the act of production could be incriminating. The Court reawned that a corporate custodian, rather than fun ctioning as an Individual, is merely a ghost o( the underlying corporate enlily. The Court concluded that recogl'li1:ing Fifth

Amendment prote<:tion (or record custodians would. as a practical matter, substantially ul'ldercut lhe corporate eJCemplion (rom the Fifth Amendment. Id. On the other hand, a sole proprietor mlly invoke his or her Fifth Amendment right with respect to producing documents requested by a ~ rand jury. United State.f /J. Doe. 465 U.S. 605 (1984). Note, however, that the contents of the documents are nOI privileged, just the act of producing them. The Braswell decision leavt'S unanswered one thorny question: whether a custodian may be compelled to answer questions about the localion of records thai were subpoenaed but not produced? In III re Gralld Jurv SlIbpoena !x/t/.'(/ April 9. 1996, 87 ~'.3d 1198 (II th Cir. 1996). lhe Elevenlh Circuit held that a cllstedilln may assert a Fifth Amendment privilege ag<linst questions related to the 10000tion of unpreduced documents. The court reasoned that to compel such testimony would be II direct intrusion into the thought processes of the custodian. and would squarely invade the protective zone of the Fifth Amendment. C. Broad Civil OllCovtT)' For Ihe crim i n ~l defendant , civil dis· covery during the course of parallel proceedings can generate ~ ignif1 ca nt concerns. Under Rule 26(b) of the Federal nules of Civil Procedure, anything that is relevant to the subject mlltter and does not fall squarely within a privilege is discoverable, The def~ ndant will not be llble to plead the blanket protection of ~the FifthM as a means of avoiding questions posed during civil discovery. The liberal civil discovery mles will therefore allow the government access to Information which woliid not normally be available under the criminal rules. Acriminal defendant cllught in this web has the option of s~ekin" a sla),. a protective order, or an order that places certain conditions on discovery. SEC II. Dresser Indus" Inc.• 628 ~:2d 1368 (D.C, Cir. 1980), wt. denied, 449 U.S. 993 ( 980): Federai Sav;,lf/S and Ulan 1115. Corp. u. Moli/raro. 889 F.2d 899,902 (9th Cir. 1989); Unil/.,(/ Sralcs v. District CDuncil of NC/Q I'or* Ci ty, 782 F. Supp. 920, 925 (S.D.N.Y. 1992). The decision to grlln! a stay is discretionary with the trial court. U.S. v.

Kardel, 397 U.S. I. 12 (1970). In mak-

ing this decision, the court wtighs the cruts and the competing il'llereslS in determining the appropriateness of the stay, including such factors u: (1 ) lhe plaintiffs interest in expediting the prace» ,and the prejudice to the defen· dant in defending Ihe stay. (2) injury to public illtere~t, (3) the potential for lost evidence (and witnC55Cs), and (4) whether there Is an il'lfringcment on it defendant's Fifth Amendment privilege. Tn Re Crand Jurll Proceeilings, 995 ~~2d 1013. 1018 (11th Cir, 1993): Wiuon II. OIa/lle Bank, 1998 WL 184470 (D. Kan.). As long a5 the ~ mme nl does not abuse the civil discovery process. it is allowed to pursue civi l discO'lery to the full e:.:tcrlt of the rulu. SEC 11. DreSMr Indus" Inc., supra. The government cannot. however, use a civi l action mnely to gain access to brood base civil distovery for use in the criminal adlon. ld. Corpor.t. CompU.nc. State and federal enforcement agenciu ' current focus on parallel criminal and civil proseculions of heliith care frllud and other white collar crimes sends a blaring 5igl'l<llto busintsse5-noncompliance will be costly. For cO!'\'lOrations or responsible individuals such iI5 offi cers and directors. the cost of noncompliance may take the form of crimin.,j pcn.lltiu, substantial monetary fines. or administrative pen.llties such as exclusion from participation in govemment health programs, often a death knell for those in the health care industry, Acompany that find$ iuelf II targct of a government investigation onen must devote money and lTIIU\llgerial personnel res;xmding to the investigation while, at the same time, waging a publicity batUe In the mcdia. These efforts take their toll on the boltom line, even if the compMy ultlmately prevails in the criminal or civ,l proceeding. By proactively developing an effective internal compliance program that enables the company to detect and root out problenu or illegal practices before becoming embroiled in a gowmment inw:stigation. the company can reduce its exposure, both civilly and criminally. Compliance programs, when properly designed and implementcd, offer sevcr<rl important benefits, Such program~ reduce or prevent criminal and civil JAN VA IiV

'Q""

exposure by reaffirming org.lni1.ational thcme~ $uch a$ quality ,md superior service, keeping management ,md employees Informed of legal requircmcnt~, establishing internal monltorinQ systems that deter organizational misconduct and detect problems when they do occur, and providing an opportunity (or damage control before a company finds itself under a proseclltorial microscope, In addition to these benefits, the QrgMi1.lItionlll Sentencinil Cuidelines ("Cuidclind'I promulgated in 1991 establi$h a uniform sentencing structure (or business organi1.ations' criminal conduct. See United States Sentencing Guidelines ("USSC") Ch, 8. Corporlltions have powerful incentives under the Guidelines to h3Ye compliance programs in pl"ce 10 detect viol~tions or the l.,w, reporl violations when discovered to law enfortement ~\Itho rities, and take voluntary remedial action. In the cven! o( a conviction. the existence of an effective compllllr\ce program rntly lead to a significant reduction in sentencing. Furthermore. the costs that a government investigation and prosecutiOr\ poses to a public corporation may result in more shareholder sui ts asserting thM corporate o(ficers and directors should be personally liable for any injury to the corporation. The e~istence of;m ef(ec· tivc corporate compliance program pro· vidu directors with a defense to personallinbi lity in such drcumstllnci!$. /11 r(l Carl!mark lilt'!. Inc. DeriliutilJl! Ulig{ltion, 698 A.2d 959, 969-70 (Del. Chan. 1996). The Coremark decision

suggests that officers and directors may have a fiduciaT)l responsibility to ensuti! that their companies have compliance progrilms in pl~ce that provide adequate information and reporting on the corporation's actiVities. Id at 969·70. AIU\Ough 11 d(i"iled frllm(.'WQrk (or the development and implementation of a

compliance program is beyond the scope of this discussion, the Sentencing Guidelines set forth 'seven minimum sleps" it company must take (or its progrllm to be considered 11$ 11 mitijj<ttinJt f"ctor in any criminal (lr civil inve~tigation: (II Establish compliance standards and procedures for employees to follow thai dcter prospective c rimin~ 1 conducL (2) Identify high-level personnel to ovcrsce compliance by employees and managers with such standards lind proccdutes. (3) Avoid delegating substantial discretional)! authority to an employee or a groul) of employees who hllve incentives (or or a hi5tol)! of violating tlpplicable l/lWs and regul ati o ll~. (4) Communicate the company '~ stlllldards and procedures 10 all employees effectively and rcpeilledly through training programs or publications that explain clearly what cond\tct is prohibited, (5) Take reasonable steps to ensure compliance with company standards of conduct through monitoring and auditing systems illld through a con· fidential reporting system where employe£:$ can re[)or! criminal act ivlty wlthoul fear of repris.lts. (6) Enfor~e compliance standards C011sist ~ ntly through appropriille disciplinary measu res for employees who violllle the Slll11dards or fail to d~lI:ct violations by others. (7) After a violation has been detected. respond IIpproprlately to the offer\se by reevaluating and modifying the compliance program, if necessary, to prevent similar offenses, USSG § 8A 1.2, comment. n. 3(k). flecent legislation. judicial decisions and the elttraordinary commi tment of

An'hony A, Jo..plr Anll>o"~

A• .Io•• pl> II. parlner In lIIIl f!Jtm!ngllllffllltm o!.IOI\rlIlOO 6&1100 f'foclOt & Powal LLP foia I, a grllduolo o! Vondorbdl UnIveI'tll\I, Howilid IJrIIvtItily aIId C",!\b;Hml\d S<:hc!oI 01 Lp' Ho wllllormer'V empIoved n an 1 '$1,'&111 dll~k;1 01101"..". 01. Spe(:1It1 AgonI with IIle federal Buteau oI l f'Vft1~ l kln _ n an ....'I'tlJlll \JIIlltd SI~I" AIIorney He lithe 1998 ( "-II, oi lha WhJla Cotlar CrlmD SYboonrnIltM 01 !/Ie ComrrlIm:IltI and BIIrtkIrlg LlIlQIIUkln Seelkln 01

u..

I~. &4

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.0110

Alr4riettn

ea' AHOClllIOfl

government resources howe dramatically increased the likelihood of greater scrutiny, especilllly in the helllth care industl)!. As a result. the adoption and maintenance o( corporate compliance programs has never been 50 important to companies' continued vi~bility, Conclusion As Ivills 1l0W aware (thar\ks to your quick but informative overview), parallel civil and criminal proceedings are the government's most pCltent IlIltifraud weapon and its most effective means of obtaining high returns on its investmenl o( money anc manpower. The trend is toward increased emphasis on su~h prO~eedings in the future. Along with this emphasis has come a Illore tlggres5ive effort to root out fr,lUd wherever agents Clln find it, upccilllly in the health care industry. For defense counsel, operating in this "new litigative enviro nment" of p..'lrallel proceedings requires a "proactive de(ense" rather lhan a "rtactive defense." Counsel must take the lead in convi ncin.: their busines5 clients of the need to be prepilTcd to respond to search warrants. grand jury or Ie subpoenas, ,u1d CJDs. Corpom t ~ officers, directors and employccs must be aware of their rights and obligations wilh respect to contllcts by in\l'stiglltors tlnd must be forewarned o( the significance of preserving work product materials and the attorney.client privilege. Equally as important, corporate clients must t<lke steps to develop, monitor and maint<lin effective compli-lnce programs that will reduce thei r e~posure to both civil lind criminlilliabi lity. The government's usc of parallel proceedings can be a formi dable wellpon against any target. Vigilance and preparation arc lhe keys in the defense or this two-pronged attack, •

R , M_rou. O l vh_ " fII . M.... u. Olvh. n II_ pa',"" in lilt II.m 01 JOhnSlon Ba.1On PrflClDI '" f!'!7MII LLP Nler g.ad ... &11ng I.om Cvmotrlend So::ItQOt cI lIIw, lie MIVtd DI • ~'V o;Illlfi<Il Ollornoy lor idonlgomtll'l CQurlly and all clapuly I liOInIt/ lor !/Ie Slftl. 01 AIabllml In charlie 01 IIPICIaiIlbglllkln

oene.a1

REGISTRATION

FORM

Joint Meeting of

e Bench ana Bar I

The State an

ederal Council

Embassy Suites Hotel. Montgomery, Alabama

January 21-22, 1999 A joint meeting of the Bench and Bar and the St.lte and ~~ederal Counci l wi ll be held January 21路22, 1999 at the Embassy Sui les Hotel in Montgomery. The meeting is sponsored by the Alabamil Judicial College, the Administrative Office of Cou rts, the Circuit and District Judges Association. and the Alabama State Bar. A tolal of 8.3 C Ll~ hOu rs h,IS been i.lpproved, The $60 registration fee includes lunch on January 21, Tickets to lhejoint reception at 6 p.m. on January 21 may be purchased {or SI5 each. Seminar topics include: "Courts Under Attack: Problematic Communication"; "Schedu ling ConOicts: Attorney Client Calendar ConOict Resolution Order"; "Discovery in Federal and State Courts"; "Federal and State Courts-Comparing Issues in Criminal r.1alters"; "Standards of Civility in lhe Alabama Legal Communi ly"; and "Civil Law and Domeslic Relalions Law Updates." Nume: _ _ _ _ _ __ _ _ _ _ _ _ _ _ _ _ __ _ __ _ _ _ _ _ _ _ _ _ __

Add ress: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

Tclephone;___________ _ _ __ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

o o o o

Enclosed is my regislr(ltioll fee of $60.00 for th is tmining session. J

will attend the reception at 6:00 p.m. on Jall uary 2 1. 1999.

I will have a guest (s) at $ 15J)o each nI the reception . I wi ll nOI attend Ihe reception.

Tota l umOll ll t of check e nclosed $,_ _ _ _ __

MlIkc cht'Ck paYlible to: AJ C FA

..M ail the ron n and check The ~ I il b :llna 300 Dexter

7, 199,9 to:

in . Ill" !II

of COUIlS.

Bnr Associmion

,J;

" WI! arl! all subj('Ct 10 s/rI!SSf!.f Ihal could at /frong lime ill our IllX!s pmll us QI'ttr rhc' edf///. There is a 9n'O/nccd (or colleugues who C(l1l hdp liS lk'(ll lI'ifll slich stresses and pcr. hap.f luke us aside and A"ci'(J liS (rom going OINtI the edge. AI 'hu/ {JOint. if lIN, urho k~u that Iawl/cr, could s/cp ill /md perhllps CI'Ctl ha/llhe 111'OCm of deepening substance abuse, pi!rhllps It'C/ CO/lII/ sailiage (J valuable mem/x!r 01 the bar and do u fillie soml!lhil1g /0 preteI'Ve our ,.cpu/allo" as 0"0""('/1$. The Alub(lf1fu Slale IJm hus a ptOflrom intcTldl'd /0 do j ust that. I heartily cndorM /llis I"ourom. ~

-Alabama Suprcml! Courl Chief Justice Pi!"JI O. !looper, Sr, he Alabama State Bar hlu rw~ntJ)' joined 38 other states

in developing lind implementing:lo L:awyer AMi~tance Program. TIle Alabama Lawyer Assisunce Program o((ers prompt. rrrective and confidential assistance to lawyers,

judges and law students with alcohoVdrug problems, Service. Offered

Au eu menl and Hereml: The AI.AP Director andlor memo bers of the committee will meet with the affected person, to I15sess Ihe problem and recommend professional evaluation, treatment ,It,d rchabilit .. tion ol)lions. lnterven lionA: When appropriille lhe program director will plan, rehearse and facili tate a formal intervention to assist the affected person in recogni7.ing their illness. allowing for the recovery procus to bej:lln. "eer Support Network: The profe»ionat in need of helping will be paired wilh a recovering lawyer or judge in their geographic area, who will help provide support and guidance into the recovery process. Education and l)!'t\'tnllon: AI.AP will work with law firms, the couru, and lhe AS]) committees and section$, as well as local bar u$O(ialions to provide education concerning lawyers troubled by a1coholand drug dependendrs. ALAP is al50 available 10 present educational programs on prevention and how individuals can help. ~o

~.NU.A¥

'0iI1l

"c.:::::~',:::;~II ~;~~:I:I, '~'~I1I~SI toof the AI.AP are confidential and are .t with helping and Il»istirlglhe individuallnvolved. ' Th • • torl •• you are about to read .,. not about bad people, Immoral people or weak people. They ar. about fellow coll.agu•• who needed help_

'Will's" Story M is

y name Will, and I am a lawyer in recovery. This is hard (or me to write in short SlKlce, It would be best if I just told the whost story without descriptions, bullhis is my best shot at it. I had developed II success(ullaw practice when I beC<lme addicted. I remember driving along the highwiY on a spring afternoon and thinking lhat I mighl have a problem. Weekends had suddenly become longer alld n,y rt$olve to quit after "this one" no longer worked. I knew that lhe only way was 10 quit entirely and for a rnomerlt J thought about asking (or help, Instead, J decided to stop for a month, mllybe I cOllld control it again. Th ~ 1 brief momenl was the lasl sane IhouJ{hlto cross my mind fo r .. long lime, J am fortunate lhal addiction fin ished me off quickly. Only a r.erson who hilS betn thert can comprehend how lilY life spi ral(d downward until everything and everyone I cared about was gone, my profe»ion, my (riends, and my family. [ know now that they weren't really gone, they just did not know what to do with me. People tried to talk to me, but I was livingwilh insanity. There is no explanation for why I could not just stop, ucept that I was an addict and a very sick person, I don't know how to relate what il was like 10 be in hell and to be controlled by somelhing tholt power(ul, In Ie» than a )'tar after I first thought about askin" for help, I was arrested. I went to treatment for damage control. promised myself 10 yep and came b1lck 10 SUrt back where I left oIT. I was unwilling 10 take the time and make necessary changes in my life_ I kept trying to

do it my way, but ultimately my way failed, and I was ready 10 take the easy way out. Accounts were exaggerlltcd, but I can't complain, because the truth W/IS wor~e, II Wil t just a $ltd slory, I know a few people who have whatever il lakes 10 give up early, bull didn't and was totally helpless before I surrendered, Alabama lawyers began /II process which eventually saved my life, For the f1rsllime, I was ready 10 do anything and 10 trusl others to help me, I know Ihallhe Question must h(lve been asked bdore, but my (ln~wcr w~~ alw~ys <julllif1ed, Nothing changed for me until my Iln~wc r to question "wh~1 arc you willing to do in order to turn your life around," was"anything." There were so many people who tmde a difference lhat I am not sure that 1would have made It without everyone of you. Other aHorneys who wtre in recovery became aclively inllOlved in putting me back together. The lawyers who rellchtd out to me gave me hope, Then, J had to accept rest}()1\sibility for my actions and m(lke an attempt at honesty. For the first time, I let someone else tell me how to live. I went to a long term treatment (enter Ihal lawyen recommended. ~lemben of LawytrS Helping Lawyers Committee stayed in touch with me and let me know that I did nol have to do this alone. Next, (ame a trllnsition facility where I could W(lrk during the day, Being a clerk in small law firm was fun. A committ ee member (lnll Bar Commissioner g.we me a chance to start a new life, I workell all day with them and al:\{) spenlllil of my free lime out of treatment with them, They introduced me: to other people who, like me, were sober (maybe I should have said other friends who understood me). My life started LO change and good things started 10 happen. I started 10 love the law again. uwyers and judlles helped me to work through a period of shame and guill, feelings which would have eventually driven me back down. I didn't have a chnnce by myself, but I<lwyeu hel]lcd me into II nelwork where I could be myself and struggle along with olheu. After a year of clerking, 1 appliell for reinstatement from disabled status. When I wenllo Ihe hearing with some of the lawyers and professionals who had helped me, I was slill sick enough 10 prepare myself for anolher look alshame, although I had done everything asked of me, 1was wrong again, The Alabama IJat Anociati()n recognh:ed that [ had (I. Ire<llable disease. The Bar wanted to verify my recovery <lnd help me, provided that I stay in Ihe program. They welcomed me back. It was emolionlll, ~1y relationship with friends and family is beller than before the bad times. I have a good law practice and enjoy going to work again. I have been sober over four )'tars now and I am getting a chance to change, That deep fee ling of fear and insecurity thai I have lived with all my life has starled to subside some. I had been hurting a long time and dilln't even know it. Now, somttimes, just for II little while, I feel at peace. [t W(luld be a mistake to hold me oul as an example of recovery; I still struggle, but I am staying sober partly because of the Alabama Bar Lawyers Helping Lawyers Program. After I had a sufficient amount of recovery time. they told me: ~good news lind bad news; the good news is wei·

come 10 Ihe IifcbObt, the ball news is that )'Ou have to help row:' Working in the progr,lm Is good for me. beCiluse it helps me 10 remain sober. Hopefully. someone else will learn from my past experiences without mtlking all of Ihe mistakes that I m..1de. There are many others who Alabama lawyers have quietly reachtd out to touch. Some have made it, some have nol, bul the program works. I am sorry for the hurt and the embarrassment thai I caused my friends, [ am grateful lhal you thought tlml l was worth 5aving and reached out a hllnd when ' was desperllte anll ncelled you.

THE HIGHEST QUALITY IN COURT REPORTING LOCAllY

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Richard Wilson & Associates Registered Profess ional Court Reporters 804 S. Perry Street Montgomery, Alabama 36 104

264-6433 JANU ~"Y

1000 I

THE UNIVERSITY OF AlABAMA ScHOOL OF

LAw

CONGRATIllATES THE GRADUATING CLASS OF 1998 ON ITS

ON THE J ULY 1998 ALABAMA BAR EXAM

The

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of AI. baIu Sc hOQlolu.

Box 870)1.1 TUiCl loosa, AL Js.87-o)8.1

I entered treatment because some tawyel'5 and my family wanted me to. Boy. did I learn a lot. I \o\'as an addict and an alcoholic who had no control over my disease. Plus, I found out that I wasn't the only succusrull~r who suffered. The fact that other lawyers were willing to share their similar experiences. trials and tribulatioll$ helped rm to have the hope and determination 10 become a grateful recovering addict/alcoholic. Ttmnk5 to Lawyers Helping Lawyers, I have a promiSing recovery thlll allows me to continue to practice law soberly and to be the dependuble man I want to be. If not dOing drugs or drinking were as eluy u many want to hclieve, wouldn't these people have just quit? They would not have destroyed their families and their carurs, bankrupt. ed thei r friendships, gone to jail, been institutionalited, or possibly died- they simply would have stopped. But that's not how it iHllcohol and drug dependencies are progressi\"e ill. nems. ones that without help only get worse. L.lwyers are not immune to these problems; in fact, by the nature of their profes.sion they are at greater risks. The AJ"b<llThl Stale Bar reCOj:lnize5 tft.l! ilcknow!edging ilnd educating its membership about akohol and drug dependencies is not only responsible but carllIlso prOmote healthier streSJ·reduction choices. Understanding the disease 0( llddlctJon often lellds to action, and acting ellrly in these Illnesses otten leads 10 ri:CO\ICry, The Alabama La~r A$siStllllce I'rogram is a;out halting the disease process before issues of misconduct are raised, enabling a valuable member of the bar to get the help they need and retum to practice. fo'or strictly confidellt/al assistance or for more information call Jeanne Harie Leslie, program director. at (334) 834-7576, • ~CI('OrlV'

Another Alabama Attorney W

hat hllppencd? [was the lawyer who had thc world by the ta[l. lIadn', I h..d grtAI succus in my tiul seven years of law practice? I had handled II C2ise that settled fo r two million dollars I had been able to cOrlvince jurors IlIld judges that my side dERIVed to be awarded the verdict. I had a wife

and fou r wonderful children.:I hOU3C, new cars and all the trappings of success. Why were these lawyers tell ing me I might have an addiction problem? Who were Ihcy but a couple of drunks? [n hind~il:l h t they

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'hit mission of (h6 IIII/ball/a $tat4! flar is (0

improutl (he administration ofjustice bll aSS/Sling Ih6 lawllers alld citizclls of our .state with their Icgalllred.s, It i.s imperative (hal (hi.s assiMallce include efforts (0 ellcourage illl(it1ircd lawgcr.s (o.seek th4! h4!lp IlCCI!ssorg for their recolJerg MJ Ihallhl!1I can continue to proui!k eff('CliL'It lL'fIlJI.ser. lJlars 10 Ihlj public, • - Victor H. Loll, Jr,

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something I didn't. They saw Ihe

dient complaints and grievances that on thei r face appeared trivial but were in relility II lIign of my inallentlvene~$ lind distraction. They had heard from my wife and my fathe r (also an attorney) about the man that they could always depend on who w/l5n't dependable any more, I was deep in denial about the (act that I drank to excess and W35 addicted to cocaine, Hadn't I come up with some of my best Jury arguments at the bar after a day in court or at one o'clock in the morning while doing /I "tine"l l wanted them to leave me /lione! Th'lOk Cod they didn't. I wa5 told thall could either get into a treatment program or else, I w;u blacked into II corr)er by three drunk lawyers who had conspired with my wife and parents to make me do something that II bright successful guy like me didn't need to do,

PlOQI_ on

For IN

1MI.a IWO )'HIt, Us L.... I\NlIItO ....."..td willi 01'* NC......o ll'oI-*t ,~ IfotoIl«Iietionl. by monoIOrlng, 1 . .1"", .n(I ~ Iheif PM' "*1 back "'10 INIIr Plac:rieed proIewon. sr.. II mtI,rit<110 Mhur Ln~. \Oho It I rnIII!'btI 01 lilt AleIllm8 Stall 9~', MtlI!le\I htI.. IWO cholr;jron, AtUY, II, And CIIII.,.rgt! Tht Artbamll LIIWV*I ,·.lIIiIIDrlCe Plog,am I. dotllgned 10 I)romole COIIII, dtnl~ , fIt!y iote'''erllklrllo lewyerl. ju(lgM arid It.. IllICMrIlt wllh JIOohoIkj'UII otI)tn(ItnC~

YOUNG LAWYERS' SECTION By Gordon G. Arms/rollg, //I

YLS A •• lsts Dlsa •• er Victims rollin), >'tars ago. the Young Lawyers'

Section organized a diwter relief com· mittee 10 provide natural diwlcr victims with pro bono legal advice as may l)I;! nceded following natural ciluutrophc5, Yl.S volunteers. W(]rking through the cooperative efforts of FENA. discuss problems. an$\\-'er qUe5liom. anti gcnemJI)' try to stecr disaster victims in the right direction when their lives are othelWise tumed upside dOWtl by a hurricane, tor·

nado. flood, fi re. or other disaster. Although [would sincncly prefer thaI our program ncver be utlll 1.cd, I ilm

proud to say Ihllt ,'LS volunteers from IIcr055 the slate have prOYidcd much needed help over the last year or so. Lasl )'tar's tornadoes in Birmingham . as well as late September's Hurricane Georges in Ihe t>1obile area, have put our progrllnl lo a lest. Through the

leadership of last ),ear's Alabama VI.s FEMA program chairman, ~lichat l O. Fn!eman . and Ihis year's ch/lirnum. Janelle I~va n s . both of Birmingham. the di$listcr victims were offered free leQ:llI aid to a,~i 51 I hem wilh legal issues related to the p;!rticular disaster, The aid program offered help with the (01 · lowing legal concerns: insurance claims for medical bills and lou of propert)'; drawing up wills and other legal papers lost in a disaster; homt repair contracts and cont ractors; and IWldlordltelllmt problems. Our bar and our state can be proud of lhe tirelcu efforts of f.1ike. Janelle and all of the mt mbt;rs of the VLS who vol· unteered their ti me and service for such a need)' cause. The)' ha'le nol onl), hon· ored Iheir profession, but more impor. tantl)'. lhe), have honored themselves. Con~ralulati o l\s and thank )'ou.

Young L.wyer.' Section OHlc.r. for 1998·99 Officers for this year's Young I.awyers' Section wert elected at lhe Alabama SI,lle Bar annual r"eeling held in Jul)' in Orange Beach, Alabama. rhls year's officers are: Cordon C. Annstrong. III- Pruideni Thomu 11. Albrithm- I're.ldenl·elect J. Cole I'ortls-Secretal')' J. 81')'an SllIughh:r-Treuunlr Hobert J. lIedge-lmmediate I). ~ ( Pruldcnt Each o( the offi cers is dediC<lted to serving the YLS membership and looks forward to a very succt 5!fu l ytar. If any· one has questions or is interested in YI.S activities, please clIlI meat (334) 434·6428 or any of the omcn s. We /lTe here to strve you. •

Judicial Award of Merit Nominations Due Tho Board of Bar Commissioners of the Alnbomll Stot(l Bar will recoivo nominations for tho stote bor's Judiciol Awnrd of M(lrrt th rough Morch 15, 1999. Nominations Should b(l prepored and mailod to: lCeith B. No,man, Sec,etary Boa,d 01 Ba, Commissioners Alabama State Bar

P.O. Bo)( 611 Montgomery, Al3&101 Tho Judicial Aw ard of Merit was esurblish(ld in 19l17. The 1998 recipIent WIiS Unit(ld States District Court Judge Ira O(lMenl. The award is not necessarily an annual award. It must be presenled to a judge who is not retired, whether SI&le or l(lderel coun. lrial or appellate, who is determined to have contributed significantly to the admrnistratlon 01 Justice in Alabama. The recipient is presenled With a crystal gaval bearrng tho state bar seal and the year 01 presentation. Nominations are conSidered by

threo -member committee appointed by tho president of the slate ber, which then makes 8

rocommendation to tho board of bltr commissionors with respect to tI nomil1(l(l or whllthllr the awerd should be presented in tiny

gl~en

yller.

Nominations should include a detailed biographical profila of the nliminee and a narrativo outlining the signifiCant contribution!s) tho nominee lias mado 10 the admrnlstration of justice. Nominations may ba supportod with lottors of endorsement.

For an Expert Business Appraisal, Knowledge and Experience Make the Difference , , , Russcll Fi nancial ConBul tin l(, Inc. Is nn Indepen. dent ccrtl(j d profc~lonul firm spcdali Iill8 In busi-

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CLE Reminder All CLE credits must have been earned by December 31,1998. All CLE transcripts must be received by January 31, 1999.

CLE Opportunities The Al abama Mandatory CLE Commission continually evaluates andapproves in-Slota. as wall as nationwida. programs which are maintained in a computar databaso. All oro identified by sponsor, location, date end specialty erea. For a complete fisting of current ClE opportunities Of a calendar. contact tha MClE Commission office at (334) 269- 151 5. extension 156 Of 158. or you may view 8 complete listing of current plograms at the staIn bar's Web sitn. MVW.8/8b8r.or(}.

....

~ANUAnY

' 0011

(Approved for CLE credit and Alabama Center for Dispute Resolution roster registra tion) January 21·23 Birmingham Mediation Process & the Skills of Conflict Resolution litigation Alternatives. Inc. (Troy Smith) (SOO) ADR·FIRM (S88) AORCLE3 CLE 22 Hours

ution with the Amcric!1Il BU~j !1C55 Apprniscl'li Network, II nntion!!1 GOu Htion of independent busincM

• EMJ'lOYEESTOCKOWNERSHIP PLANS • INVESTMENT AND FINANCING DECISIONS

Alabama Mediation and Arbitration Training

January 21-24 Montgomery Divorce Mediation Atlanta Divorce Mediators (Elizabeth Manley) (800) 862·1425 CLE 40 Hours February 25·27 Mobile M ediation Process & the Skills of Conflict Resolution Litigation Alternatives. Inc. (Troy Smith) (BOO) ADR-FIRM (88B) ADRCLE3 CLE 22 HOurs M arch 15-17 Montgomery Mediation Process & the Skills of Conflict Resolution Litigation Alternatives. Inc. (Troy Smith) (800) ADR-FIRM (888) ADRCLE3 CLE 22 Hours Note: To date, all courses except those noted have bean approved by the Center. Please check the Interim Mediator Standards and Registration Procedures to make sure course hours listed will sat· isfy the registra tion raquirements. For additional out-of-state training, including courses In Atlanta. Georgia. call the Alabama Center for Dispute ReSOlution at (334) 269·0409 .

DISCIPLINARY NOTICE

Notice Welter Jesp.r Price, J r., .....nose whereabouts are unknO'Nll, must answer tho Alabama Stete Bar's formal dlSClpli. nary chllfges within 28 days of January 15. 1999. or, thera/ter, tho charges contained therein shall be doornlld admluod lind oppropfiOIa dlsCI~line shall be imposed ogalnsl him In ASB No 97·232(A) belore ~he DiSCiplinary Boerd of tile Alabama State

Bar lASe No 91·232(All

R.lnstat.m.nt • By order of the Disciplinary Commission dilled August 31, 1998, David Cartellllooper. a Montgomery attorney. was suspended from the practice of law in the Slate of Alabama for noncompliance with the Client Security Fund Assessment I~ule$ or the Alabama State 13;ir. Said suspension was effective September 9, 1998, and, by order or the Disciplinary Commi»ion dated September 18. 1998, I)avid Carrett l'looper c<ime into compliance with these said ~ll ies and was reinstat· ed to the prnctice of law e(fectivt September 17, 1998. Suspensions

• Birmingham attorney Charln Robert Poore, III, was inter· iml), suspended from the practice of law b), order of the Disciplinary Commission of the Alabama Stale BIIt effective October 21. 1998. IRule 20(a): Pet. No. 98·101 • Monroeville allorne), Mickey Womble has been suspended from the practice of 13W for 3 period of 90 da),s, effective August 14. 1998. This acUon W3S laken as a result of Womble having pltaded guilt)' in feder31district court 10 fil ing a fa lse ftder31 income lax return (or the ),eM 1992. IRuie 22(a)(2): I'et. No. 98.021 Public Reprimands

• On September 18, 1998, Birmingham lawyer David 8. Norrll , Sr. received a public reprimand with Jteneral publi.

C3tion in connection with his conditional guilt)' plea. Norris was handling a perwnal injury case (or it client. When he was unable to setlle the case at his initial demand, he turned the case over to a subordinate lawyer in the firm . Thai lawyer failed to file suit within the two-year statute of limilallons. Norris maintained some conlrol over the file after assigning it to lhe 51,lbordinate lawyer. and even wrole letters to healthcare providers after the statlite h.1d already rlln. Norris pleaded guilt)' to willfully neglecting" legal maUer. and failing to Sllpervise a subordinate lawyer in hi~ ethical obl igations.IASB No. 95-132(AlI • On Seplember 17, 1998. Oinningham lawyer Dennis ~lIchael lh""tt received a public reprimand without gener· al publlcatfon in conjunction with his conditional gllilty pita. While serving as a "stllfr litigation attome),Hwith th~ law nrm of Norris &. Associates. ilarrell neglected to file a ptrsonlll injllry lawsuit within th~ statllte of limitations period. Barrell entered II plea to willfully neglecting a legal mailer enlrllsted to him. lASS No. 95.132(8)1 • On September 18. 1998. Birmingham I<lwyer lIeDY)' Lee I)enkk received <I publiC reprim<lnd with general Pllblication by the Alabama Siale Bar. Penick (alied to obtain service on II defendant he had sued for one of his clients. The U.S. District Court sllbseqllently disrniued the cnse. but Penick did not notify his client of that fact. Th~ Disciplinary Board of the Alabama S tat~ Bar found that this conduct violated the Rules of Professional Conduct, in that Penick neglected a legal mailer entrusted to him. and failed to commllnicate wilh his client. Prior discipline WII5 considered.IASB No. 95.2:17(A)I . 011 October 16, 1998. f.10bil e lawyer ))eborah Diane McCowin received II public reprimand without generlll publication b), the Alabama State Bar for her conduct in three different cases in which she was involved. In one case. />1cCowin failed to fe-file a cau in a timely manner, and let the statute of limitations rlln. In another case, McCowin failed to commllnicate with her clients after Slltnrll"ry judgement had been gn.nltd against them. In the third case. />1cGOwin failed to cooperate In the Investigation of II grievance filed b)' one of her incarcerated criminal clients. McGowin plead glli lty to violations of Rule 1.3. Hule 1.4(a) lind nllie 8. l(b) of the Hules of I'rofession.. 1Conduct. I'rior discipline was considered. !ASH Nos. 9S·336(A). 96·282(A) & 97·380(A)) •

J ..... U ... A . . . . .0

.. ,

NOTICE OF ELECTION NOtl'C8 is given herewith pursuant /0 the Alebtlme Sle/8 88{ RU/fJS Governing Elec/ion of President-Elect end Commission,,,

President-Elect Tho Alabama Stele 6ar will elact 8 president-olect in 1999 to assume tho prosidency 01 the ber in July 2000. Any candidato must be II member in good standing on March 1, 1999. Petitions nominating n Cllndidelo must beef tho 91gnoluro 0125 memo

bers in good standing of the Alabama Stolu Baf and be received by 11)9 secretary of tho SIOUI ber on or bolortl March 1, 1999. Any candidate for this aNica muslalso submit with tho

nomin~llng

petition a black end while photograph end biographical

dala to be published in Iho May 1999 Alabama ('WIler. 8allots wilt be mailed between May 15 and June 1 and must be received at state ber headquarters by 5 p,m, on July 13, 1999.

Commissioners Bar commissioners will be elocted by those lawyafs with their principal ollicas in the following circuits: 8th; 10th, place no. 4; 10th, place no. 7; 10th, Bessemer Cut-off; 11th; 13th, place no, 1; 15th, place no, 5; 17th; 18th; 19th; 21St; 22nd; 23rd, placa no. 1; 30th; 31 $t; 33rd; 341h; 35th; 35th: and 40th, Additional commissioners will be olaclad in thesa circuils for each 300 membars of tho stOIa bar with principe I officos horoin. Tho now commissioner positions will be determined hy II Cllnsus on Morch 1, 1999 and vacancies cenified by th(l secretary on March 15, 19(19, The terms of any Incumbent commissioners lifO retained. All suhsequent terms will be lor three years. Nominations may be made by patition bearing the signatures of five members in good standrng with principal oHices in tha circuit in which tha election will be held or by Iha candidate's written daclaratlon of candidacy. Either must be receiv(ld hy the secre!a'Y no later than 5 p.m, on thalast Friday in April (April 30, 1999), Ballots wil1 be praparad and m8ilad to members between M3Y 15 end June 1, 1999, Ballots mllst be voled and returned by 5 p.m. on Iha second Tuesday in Juno (June 8,1999) to slate bar headquaners.

IMPORTANT! Licenses/Special Membership Dues for 1998-99 All licenses to practice law, as well as special memberships. ore sold through th(l Alabama State Bar headquarters. In mid-September, a dual invoice to be used by both annuellicense holders and special members, was mailed to every lawyar curfBntly in good standing with tho bar.

I! you are actively practicing or anticipoto practicing low in Alabama betwoen October I, 1998 and Seplombor 30, 1999, plellse bo suro that you purchaso on occupational license, licenseS are $250 lor th(l I998-99 bar year and payment should hove been RECEIVED between October I and October 31 in order to avoid an automatic 15 percont panelty ($37.501. Socond notices will NOT be senti An attorney not engaged in the private practice 01 law in Alabama may pay tho special membership 11111 of $12510 be considored a membllr in good standing, Upon receipt of payment, those who purchue a licenso will be mailed a license and 8 wallet-size licenSIl for identification purposos, Those olecting speCial membership will be sent a wallot-Slzo 10 card lor both identification and receipt purposes,

If you did not receive an invoice, please notify Diane Weldon, membership services director, at 800-35461541In-st.te WATS) or 1334)269-1515, ext. 136, IMMEDIATElYI

If you're Jlot In8ured with the Att.ol'neys' Advantage Profo881onaJ LlnbUlty InBul'n.nce Program ... you 8hould objoct to you!' ourre n t In8lll"01'

on the following gt'ounds:

1. You may be paying too muoh for your liability coverage.

2. You may not have the broad ooverage you really need. ttomoy,,' Adv(\.nUl.go ProfOll8ionai U abillty [n!l\lrunoe offen brood OOYO l'ttg'O .. ,up to $ 10 million In Ilmll.a. Program benoNt8 IJloludo;

• Fir.' Dollar Defense •

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Best of all, It\! underwritten by '1'[0 IJ\8tl1"MOO CoIYl IXUly, A.M. Bot!t rut.od "A" (\':!xooUont), Xl.

IP[11

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INS:U RANCE_

RECENT DECISIONS By Wilbur G, Silberr11(m ami Rachel Sanders-Cochran

Recent Bankruptcy Decisions Anv United Stat•• agencv owing bankruptcy debtor ha.

right 0' .etoH of chlilm due from debtor to another agency of U.S.

Ullif(!c/ SMes II. !o1a:nvcll, 157 F.3d 1099,33 I3.C.O. 332 (7th Cir. 1998). The lower \:ourts held there to be an cKceptioll to Ihl! bl1nkrupl\:y right of setoff in deciding th at the

"perva~ivl!

nature" of the U.S. prevented the riAhl of one federal agency to set off its debts to the debtor against th ose of the debtor

owed another federal agency. Jnlhis case, the NaV)' rellched agreement with Ihe trustee for 3n oblig.1tion due the debtor of $5 1.050. However. Ihe SBA had a secured cI~im of $490.575 due on various 10"n5. 1\150, there were substan· ti<ll Ului!:curcd claim~. The U.S. filed iI complaint. which included ,I setoff claim, to determine rlght$ of the V'lrious creditors irllhe $51.050. The trade creditors denied the claim of setoff while the trustee took no position other than to defend his own administrative claim. The bankruptcy court held that the setoff claim was superior to eQui-

Wilbur Q. S lIb. rm. n W\ItIuI 0 SiI)eI ........ 01

table liens. but th;I' lienholders had priority over secu red creditors. It rejected the contcl1tiol1 of the U.S. that the setoff of the alnount due from the Nal!)' could be setoff to the SBA. The court based its holding on two ground$-onc. that Section 553 of the Bankruptcy Code did not allow setoff between dis· tinct federal agenc ~es, as they are separale entities under both 101 and 553, and the other that public policy favo rs denial of setoff between different U.S. agencies ;1I1d lhe debtor, in that setoff Ullderzllillcs trcatlng similar creditors eQually and that the "pe"'<l~iveH nature of the federal government "amplifies the effect of setoff'. The district court affirmed only on the public policy llrgument. 5,lying that to allow setoff in such inslOlnces would give the government an unfair <ldvantllge. The ~venlh Circuit dif><lgrwd, slating that lhe BankruPtC}' Code preserves wIlt1!L'Vcr rights exist ou\:iide bankruptcy-lhat ouuide of bankruptcy, the United SI,ltes is II single entity. It noted thnt nothin" in the Ba.nkruptcy Code CrCIltC$lm £x~pti on to setoff when there nrc pe,,'nsive creditors, lind to hold to lhe view of the lower cour\:i WQuld be a rtpe<ll of the stMute, II cites as authority the Eleventh Circuit C<lSC of St:c /1, Blfiof/, 953 1;;2d 1560, 1573 (1 1th Cir.1992). The COllrl concluded with a statement thai b.lnkruptcy courts can· not in the n<lmi! of equitable subordination, categoriC.1l1y suoordinale certain claims, because it would intrude on the legisilltive function.

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Comment: This decision. in its application, could be fa r-reaching. For examjlle, in chllPler 11 cases. how does the court allow certilin critical creditors to be !hIid pre-petition claims, in order thilt the chllplt r 11 debtor obtains their product or ~eNices during Ule chapter 11 pro-

ceeding? Are these variances not clear viol<ltions of the preference provisions? Eleventh Circuit rule. that State 01 Oeorgla lo.t It. Eleventh Amendment Immunl·

ty by rea.on of filing proof of claim for unpaid .tate Income taxes

fn ril Burke. 146 ~~ 3d 1313 (J Ith Cir. 1988), In the IJurkc case, the Georgia Department of Ilevenue (COlt) filed a proof of claim for unpaid income t,lxes of $12.437.40 frOm year$ 1980-84. Prior to discharge, neither the debtor nor CDH requested a determinillion of whether lhe~e taxe~ were disch<lTlj:ed, and the chapter 7 (convtrted from chapter I I ) was closed. Three month~ subseQllentto the discharge. COil demanded payment from the debtor who then re-opened the case, and filed an adversary proceedingllgainstthe SllI!e of Georgia contending violation of the discharge injunction set out in 524(a). The State moved to dismiss urlder the Eleventh Amendment il11l1lunUy cI,lUse per Seminole Tribe II. Florllla, 116 S.Ct. 1114 lI996). The bankruptcy court held for Iht debtor under the authority of the Eleventh Amendment. and nbo Bankruptcy Code Section \06(a), stilting lhllt 106(aj was enacted under authority of the Fourteenth Amendment. The Eleventh Circuit. on appeal from the distri(;t comt. first commented that the Supreme Court has r.reviously held thai Ihe Eleventh Amendment not only bars ~uilJ agaln~l a .stMI! by ciliz~r'ls of other slates, but also by ils own citizens. It determined that it was not necessary to decide whether 106(a) was enacted under the 14th Amendment. beclIuse the State waived its immunity privilege by

filinjl a proof of claim. The State con· tended tn.lt COR oould not .....ai\"e immu· nity. that according to its constitution only the l.egislaturc could do so. and that .....aiver i~ limited 10 the extent pro· vided in the Ceorgia constitution. The Eleventh Circuit dull with this by citing Currin(1/' II. New Jl!fSI.!Y, 67 S.CL 467 (1 947) which held that when the State becomes the actor by filing a proof of claim, it waives its immunity. The Eleventh Circuit followed by stating that the waivtr Includes the !>.lnkruptcy cOllrf! enforcement of the discharge injunction and the automatic slay. Olll. it then narrowed its ruling, stating that it ruled in this manner becauk the debtors were seeking only costs and attorneys' fees inculred in enforcing the automatic stay and discharge injunction. Comment : I do not know what to gllth· er from Ihe "narrowin${" portion of the opinion. Don it mean that if additional damages fl owing from the violation were incurred. Ihe mmunity .....ould not have been waived? This is intimated. Should the practitioner havt Ihis prob· lem in the future, a decision will have to be made on the particular fac ls of the matter.

Section 1129(b)(2)(I1)(ii). The Ju~tic(5 heard oral argument on Nowmber 2, 1998, all(! at this submiulon (NO\.-ember 16. 1998) is considering its answer. The abo\-e-cited Code section provides that a plan may be confirmed over dissenting cr~ditol'5 only if unsecured creditors rcccivt full p<1Yment or e(I\Jity holders will not receive or retain property on acrounl of their equity interests. (empha. sis supplied becau~e the Interprct1ltion of this appeared to be the main issue) Possibly by the time this iuue of Till! II/abama Lowyer is published. you will have an answer. I go out on the limb predicting, as previously. that unleu w:ditors are granted the same privilege as equity holders for purchase of the new equity. the new value tJ(ceplion will be rejected.

Recent Civil Decisions

Cas. Update Important to chapt.r 11 practl. tlone,..: Supreme Court h.ars argument on new value excep. tlon to absolute priority rul. M. I have commtntoo previously. the

Arbitration; mutuality of rem .. dy doctrine Inapplicable to Invalidate agr.ement to arbl· tratej In.u"lcl .. nt evidence of unconsclonabllitYi non. slgna. tory may enforce arbitration provlslan when complaint aneges Joint conspiracy t:x IKlfie Napier /j'{oph.,. II. MOllllilig. el u/.). Ms. 1961828 (Ala.. Nov. 6. 1998). I'lainti«s sued a mobile home dealer. the

U.S. Supreme Court is considering whether there is an exception to lhe absolute priorit)' rule contained in Code

dea ler'~ representative. the assignee of the installment contract, and an insurer. alleging (raud;n connection with the

5..11e of the mobile home and in the procurement of force-placed ilUul'llnce on the mobile home. The defendants sought to compel arbitration. Plainli'fs objected, alleging that the arbitration rrovision was \!Oid for lack of mutualit)1 of remedy, that enforcement of the provision would be unconscionable because of plaintiffs' advanced age, lack of education and poor vision, and thai the non.signatories were not entitled to enforce the arbitration agreement The lrial court granted defendants' motion to compel and plainti(r~ ~tit;oned for tn.1nu..mu5 relief. The AlabarTkl Supreme Court denied the plaintiffs' petition. rejecting all three of plaintiffs' argument!. The tourl reaffirmed the holding of Ex parle McNaughton, in which the doctrine of mutuality of remedy was Uflcquivoc/lliy rejected as a defense to the enforcement of an ilgreemenllo arbitrate. As to the plaintiffs' claims of unconscionability, the court noted that, although an unconscionable arbitration provision would De unenforceable. the party asurtiJlg UJlcoJl$CionabililY bor~ the burden of proof on the Issue. Btcau$C: pillintiffs failed to present sufficient evi· dence to meet their burden of proof. the courl rejected the claim of unconscionability. ~·inally. the court found th,lt because the plainlifff COO'lplllint alleged a conspi racy among the signato. ries and non-sijlnatories to defraud plaintiffs, the claims asserted agolinst the non ·~ignlllo ries were intimately Intertwined with the claims asserted against the signatory parties. For this rea50n. the court compelled the claims asserted against the non·sigl\'ltories to IIrbitration.

Motion to Reopen a Bankruptcy Code Case Thll Judicial Confere nce has rnandetlld a change in the foe sche:lule for flhng a motion to faop6n B bankruptcy codo case, Effective Imm,dllllely, a fee shell be collected in tho saml} amount as the fmng fe e prescribed by 28 U.S.C. Section 1930(0) lor cornmencing8 new clSe on thll da to of reopening. union the reopening IS \0 correct an administrative error Of lor IIctions

related to the debtor's discharge. The court may waive this fee under appropriate circumstances

may deler payment 01 the lee from trustees pending dis-

covery of eddillcnal essets. ThiS new lengJoge mandates that tho reopening fee will ba colilic ted bV the bankruptcy clerk's office allhe tima 01fl!i flO.

The feo is non·rehmdeble even if the motion is deniod. - U.S. Bnllkwp/ey CtfJrk's OffietJ, Norrl1 fJrn District of AI/Jb/Jm/J, 1800 5111 Avonuo, North, Blfmlnghnm, AI/Jb/lmIl35203; phone

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Medical malpractice; trial court'. discretion under rul. 403 as to admiulblllty of evl. dence relating to physician's laek of board eertilleation Gli,son /J. Younes. Ms. 2970415 (Ala. Civ. App., October 2, 1998). I' laintiffs filed a medical malpractice action alleg. ing negligence in physician's treatment of plaint itrs chronic pain. At trial. plai n. tiffs sought to int roduce evidence that phY$icillll twice had failed the medical board certification exams for anesthesi· ology and pain m:111agcmcnL Although the physician was allo\\'ed to te~tify as an expert on his own behalf. the trial court refused to allow plaintiffs to ques· tion or elicit information regIlrding the physician's "failme" of the board ex;\ms for fear thallhe jury would connote the word "failure" with "neillillence." However. the pl<lintiffs were <Illowed \0 question the physician as to whether he W<lS b«lrd-certified. The ju!), returned a verdict in fnvor of the phY$iCilin III)d plaintiffs appealed. Presenting an issue

of first impression in Alabama, plaintl(fs challenged the trial court's refusal to allow evidence that the physician failed the board exams. claiming that the evidence was highly probative and that its cxdusion was prcjudicial to them. The court of civil appeals concluded that a phy~iciar\'s i~ a bility to pas~ II medical bo.ud certificat ion exam is irrelevllnt to the issue of the physician's negligence in a malpractice caSf. However, the court also held thai when a phySician sued for malpractice testifies as an expert. the fact that he has failed n board t:ertific.ltion exam is relevant to his credibility as an expert. In lhe case before it. the physician had te~ tified as ~n expert and, theref(lrc. his two failed attempt! at bo..'\rd certification were rclevont to his credibility. However, the court affir med the trial courl's decision to exclude the eyidence as unfairly prejudicial. noting the great discretion afforded a trial court under Hule of Evidence 403.

Papllntonio eX ]l lni n~ hr)W Iklther Clarl.'ncc Darrow t\1)r Attic'u, Finl,;h r~,c 1l1 bl ed the ~in g l ~ .dimensionnI, Ii ne::lr. thin ki llJ.l :lrturncy t hat ~CI.'I11 ~ to Ix a I l11 11~! dk h ~ and cpiJcmk il\ the '90s. Th c~' WCf e nOl abridget! versions of l<lwyc r~ . Their e ndl cs~ cffoTl to lJlldcrswnd :lIlt! appreci(llc rhe: world ou tside thr (()l IT wnlb Iheir o ffi(;c~ prnvirh;d b~ l ~ n cc to their Ji \'c.~ . " 111.')' bUlh worked hard

0' cIt-

Class actions; div.,.lty l:renshlp Jurisdiction and fraudulent Joinder 7r199.~ II.

John Crump 1/)yO{(l, Me. ef

E 3d _ , 1998 WL 633673 (11th Cir" Sept. 16. 1993). In this case. plainliff Triggs leased a car (rom Omni, a Florida corporation. through an Alabama car dealership, Crump Toyota. Plaintiff fill!d 11 fraud action in Alab"ma state court against Omni and Crump Toyota. IIlleSing that Crump lind other dealerships sold Cllrs in Alabama to Omni llliTlnllled priCes and UIlll Omni wou ld then lease the cars to the plaintiff class. passing the excess cost onto them. Plaintiff sought class certifica· tion. The defendants removed the suil to federal court on the basis of diversity jurisdiction, allegi ng that Cn1mp had been fraudulently joined. On a motion tu rCI1111nrl. the District Court found that the put'ltive class included over 17.000 people, all of whom had dealt with Omnl. but only 2 pucenl of whom had dealt with Crump. On this basis. 01" _

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the District Court concluded that Crump had Dun ftolUdulently joined. Because there WolS complete diversity of cili7.en~hip among the named parties once Crump was disregarded. the district defiled plilintirrs motion to remand. On appeal. the Eleventh Circuit reversed, finding that Crump Toyota had been properly joint<!. thereby defeating diversity jurisdiction. The ~; I eve nlh Ci rcuil reviewed tht three situations in which the courts hbve deemed joinder of a party to be fraudulent: (1) when there is no possibility that the plaintiff can prove a c.luse of action against the lion-diverse defen· dant: (2) when there is outr;Rht fraud in lhe plaintiffs pleading of jurisdictional facts: and (3) whert a diverse ddend,ml is joined with a 1101l-dlverse defend'mt as to whom there is no joi nt . sevcral or alternative liabilityand where the cI<lim against the diverse defendant has no real connection to the claim agalnsllhe non·diverse defendant, The Eleventh Circuit found thai the plainlifrs complaint clearly stated a potential eauS(! of action against Crump and, thus. as to the named plnintiff. Crump was not fraudulently Joined. The Eleventh Ci rcuit rejected the dden· dants' claim that Dtcause 98 percent of the putat ive cli15S members would have no claim against Crump. Crump must have been fraudulently joined. "This focu~ is inconsistent with the well·settied rule for class act ions~that a court should consider only the citizenship of the named plltties to determine whether there is diversity jurisdiction." For these re.l50ns. lhe Eleventh Circuit found Crump·s joinder as a party to be proper under Rule 23.

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1-800-274-2663 The Eleventh Circuit noted that Crump's joinder WilS also proper under Rule 20 of the Federal Rules of Civil Procedure. Under the e~p res5 language of Rule 20, ~a plaintiff or defendant need not be interested in obtaining or ddending against all of the relief demanded. Judgment may be given for one or more of the plnilltiff! according to their respective rights \0 relief. and against one or more defendants accord· ing to their respective liabilities. ~ Thus, lhe fact that a grtat many of the memo bers of the putative class could seek no relief against Crump .....as no obstacle to Crump·s joinder as II defend/lilt. Additionally. the defendants argued that bifurcation was aPl)l'opriatc becau:se many of lhe putative class members did not have a potential claim against all of the defend,mts. In reject· ing this argument, the Court distin· guished TupSCOllu. /t1. S. 1)('lI/er Service Corp .. 77 E3d 1353 (11th Cir. 1996). The Court found lhat. ullilke T(/I'5COIl . this case "does not inllQlve two distinct classes that have no real connection to each other.... Triggs ard all the memo ben of the putative class have claims for relief which would impose joint lia· bllity upon Omni and tht particular

dealership involved. Those claims arise out of II series of t r<ln~ctiUIl! precisely like the Triggs·Omni tran~ction and give rise to comlTlOll questions of law and fact. Thus, unlike Tupsoolt , there is a real connection bet~en tht claims of the named plaintiff and the c:aims which defendants seck to bifurcate and ~eve r (i.e .. the claims of the 98 percent of the putntive da5S) .~ For these rea· sons. the Eleventh Circuit found that Crump's joinder W<l$ 1'1$0 proper under Federal Rule of Civil Procedure 20. t"inally. the Eleventh Cl rcu t rejected defendllnts· claims lhat because plaintiff joined on ly one of the numerous dealerships through whom membeu of the pulative class dealt wilh Omnl. plb;nliff m\,J$t have joined Crump solely to defeat diversity jurisdiction. Citing United Statu Supreme Court precedent, the Eleventh Circuit stated that "a plaintiffs motivation (or joining a defendant Is not important as lung a5 the plaintiff has the inlent to pursue 11 judgment againstlhe defendant." Because the Court found nothing in this case to sug· gest an absence of an intent to pursue a joint judgment against Crump. the Eleventh Circuit rejected defendants' "~d faith " argument. • ~. N U.nY

.QuO J 81

Additional Amendments to the Rules of the United States Court of Appeals for the Eleventh Circuit ollowing receipt and consideration of comments 10 the proposed amendments to tile Rules of the

United States Court of Appeals (or the Eleventh Circuit. the court has determined to make the following additional

revisions to the Rl.lles as set forth below. Pursuant to 28 U.S.C. Stction 2071 (e). these additional amendmcnIJ take effect on December I, 1998 at the ume time as the other amendments to the !tules. 1. New 11th Cir. R. 27·l(b)(4) is

.. mended to begin with the following clause: "Except in capita( Cilses in which execution has been scheduled.

whom will you trust

2. 11th Cir. It 28·2(01) I~ .. mended to conform to the li$\ of ilcnU con· talned in FIMP 32(a)(2).

with your next lvaluation?1

3. 11lh Cir. It 32·3 is amended to add the (ol1owing sentence: "The clerk may exercise very limited discretion to permit the filing of briefs in which the violation o( FRAP and circuit rules governing the format of brid$ is exceedingly minor if in the judg. ment of the clerk recompOsition of the brief would be unwarranted .~

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5. lUh Cir. R 27-I(e) isamended to read: "lWo-Judlu: Motions Panels. Specified motions as determined by the court may bt acted upOn by ~ p.1ncl of two judgc~."

6. Ilt.h Cir. H. 47.5(11) isamended 10 delete the lllst sentence. 7. 101' 8, Negative Poll (p. 85) is amended to read: "If the vote on the poll is unfavorable to en bane consid· eration, lhe chief judge enters the appropriate order." On and after Dtcember I. 1998. the revised rules !Illly be foond at the Eleventh Circuit's Web 5.te. IL'lL'w.caJI .!lscourts.{JOIJ.

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ELECTRICAL EXPERT WITNESS: SICMW'I J. Owen, electrical consultant. 24 years' In electrlcal lndu, try. Momber 01 BOCA, CABO. IAEI , ICBO, SeCCI, OSHA authorized In$!ructor. LPI cert l· lIod lightning prot&et!on. NICET cert!. lied. Master etectrlclan/contractor In 39 slale8. Fee·baala only. Phone (205) 987·2502: Fax (205) 982·96 13. TRAFFIC ACCIDENT RECONSTRUCTIONIST: Case evaluation with respect 10 Issues. Legaltestl· many. Vehicle acclcl6nt reporlanaly!is. speed calculations IncllJdlng stopping distance, scene scale drawing. 01(:. Rogistered Profession(ll Engineer. Technical aocIety member. Over 20 years' englneerfng e~perlence , Traffic accident reconstruction training. Background Includes technical and communication skjls, adverserlel axperi· ence. !egaltestlmony and proc8SS 'amillelily. Contact John E, Reinhard!, P. O. Box 6343, Huntsvlle, Alabama 35824. PhOne (256) 837·634 t FORENSIC DOCUMENT EXAMINATIONS: Richard A. Roper. Ph.D.. 7956 Vaughn Road, ~ 141 , Montgomery. Alaooma 36116, Phone (334) 260-2552, Fax (33-4) 260·7929. E-mail: richroporOaol.com. Seventeen yeara' forensic dooJment o;r.amlnatlon,: 27 yeara'total lo/enslc experience: retired senior docU1'\enlS axamlner and discipline coordlna:or, Alabama Deportment of Forensic SciGnces: memo ber Questioned Docurn&f'llS sectloo, American Academy of Forensic Sciences, SovIh6aslorn AssocIation 01 Forensic Document EJCamlnera: Southern Association 01 Forensic Sclent)sts: Alabama State AsaocIallon 01 Forensic Sciences (past president). CONSULTING ENGINEER/EXPERT WITNESS: ProIes5Ional Engineer with 22 years' 01 Industrial construction, saloty, machln41ry, and pulp and paper eKperlenca. IndustrIal accidents, OSHA, building codes, automobile aoclden1,. product liability and detense. Roberl T. Tolbert. p, E, Phone (205) 856-9922. SKIPTRACING-lQCATOR: Nood to locate someone? Will lOcale the person

or no charvetno minimum Ige tor basic: lOcate. 87% IIUClCl6S$ mle. NaIlonYActa. Confidential. Other ano'l'lOy needed aearche~sIInlormatlon servICes In many area, lrem our elflensive dL\1abases. Tell us w~t you nood. Verity USA. Calltoll·free (888) 2·VERIFY. LEGAL RESE ARCH AND WRITING: Research and writing serviCes. Includ· Ing brIefs, trial memorsnda and otner documents. Prompt deadline servlcea. EJCperlencad resoarcher and writer. Llcen'ed Alabama attorney and memo bar of the Alabama State Bar since 1979. Katherine S. Weed. P. O. BoJC 590 104, Birmingham, Alabama 35259. Phooe (205) 941, 1496. No rspresBfltatlon is fTl8d6 that the ~ltlity 0' I9QS1 services to be performed Is (JrtJlJter than the quality of 16g81 services performed by other lawyers. STRUCTURED SETTLEMENTS AND LOTTERIES; Inlorm your cllentsl Top dollar paid lor Insurance ae ttlements, structured se1tlemenl annultlos, business notes and perlOOk: poyment con· IraCts, Help clients eKplora th alr opUonl, Call today, no obligation. Your client will receive straiChtlorward, rail· able servlca. HaarllaM Capital Funding. Inc. Phone (800) 897·9825. ·Professlonal Annuity Funding ,0 r)'01,I and your client." Brochures evallable. STRUCTURED ENGINEER AND CONSTRUCTION MANAGER: Rogistered proIes$lonal engineer In three states, M.S.C.E. TNeIlty·flve yean' eJCpel'Ience with heavy ItwJU8lrlai, pulp and paper, petrochemical plants. com· merclal. and resldentlsl, EJCtonslve OKpe· rlence with unusual stn.ctural lallur8' and Insurance cttdms, Computer anima· tIon!of lolled structl,lres. NeQoIlate c0nstruction claims and medlata construc· too disputes. Contact Hal K. Cain, Mobile. Phone (334) 661·2605.

Position Available Chief Deputy Clerk,

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TIle chilli deputy clerk is a 58nor-lovol POSlllon reporllng to me cler~ Major respon· slbllitles lI'ICiude asslSling the clll't with sUpeMSIOI'I. managomeot and adr!II'IIS11111YO opalltlOfl 01 tile clark's o"~s

Responsibilities Speelfle IIISponslbll,!IIlS Include CIISO man· agement, porsor.r.el. stBti stlCllI rOlXl! tlfo\l, /lulomatlQ!!, COUll 58$'100'. li5CIIl, IIr1d pto· eUIOOl4'!fIt The chief deputy clerk ortlCli'/ $UClOf\'IS8S mId·managers lind oY8!5OOS IWld COOtdll'lBtes oil case PlDCeSSlng lIC'Mtres.

establishes. adjusts and 1lII$VI8S eon'4lharce Wlm QIIo,lity eontrol sl3t'<l3tds. UUllln ostablishlng and enforclllQ opemtlilO proce· dUlos arid $tondalM and ensures mmpliaoco. osslsts III OOwloplIlg organill1tillOill gOllls end objectrves. 8mbllSlles plans. ptiorrtles and deadlines for COOIIlIetioo 01 wor~ .'IWI· ments; and IICU lor the clerk In illS absenar

Qualifications An U!'<IeflIrildualC oooroo from lJl acerOOlt· ad university IS reqUire(!, Mule 8 pcst -I/Illdu ma !legrno In jUdicial or public OdmnlStfnllon. 00510011. polrtica l science. or 1\ relillad Hald is oeslrablo A law llIlgree IS Ilighly tltsimble

A mlllrmo..m of SlXyears of PfOIjfBSSMli'/ 183IlOf\SbIe flllNllllHiIIl Of IOrunISlI3II'1O expo rieraI is rlllPJired. t1Yee of y,tJiCh rt'IISI h.We I!WOIvod ~ ~lbIhly jlIllferllbly in an ;wollllt9 or lederal COUll OIMlOM'I8!It AIlalytlCll l llnd commumcatlon "ills (Oral and wntllln), Intorporsonal s~lll s Dnd an abil· Ity to assume and dlllOQllt8 18spolllrblilly mUSI be demonstrated A knowIe<Ige 01 ollice outomall)(ll$

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Salary IhIl5lliary III'1011 01 m.31fHl17,4()1 (JSP t6) IS dBpordent upon Ihe opplitant's Qualifications

How 10 Apply Submit a lotter 01 '"tBrest and curmnt rUl.lm8 to ThomaSI( KIM, Clerk US Court 01 Appeals EllJYIlf1lh Circuit 56 Forsyth Suoot. rffl Atlanta. Goorgla 30303

Altn P8lsonll(!1 Specialist

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$nd Interntlllon$1 job openings received by our offieEI $nd should be the $tarting polnt of any Job search by lawyefS look· ing 10 changl!l jObs." Each monthly Is&ue contains 500·600 current (pubHc/private &eClor fObS). $45·3 months. $75·6 months. COntact: Legal ErnplOyrnant Report. 10tO Vermont Avenue NW. Suite 408·AB, Washington. DC 20005. (800) 296·9611 . VhwMCJAMEX. Web site: www.a ltorntl~.com. ATTORNEYS WANTED: Firms throughout Alabama and IICJti&S the II{\tion lire seeking outstanding enomeys In the fol· lOwIng $rees! banldng, corpomte. empIoymen1. ERISA. IPo Ii\lg<l.tlon. end tax. Penner and assocIela level positions s~ll$bIe. Strictly CXlI1IIdentI$l. COntacl Richart! G. Brock. asq. fit Speciel Counsel. Phone (205) 670-3330. exlensian 102. Felf (2O:e) 870-3337 Of e-mail 10

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As an attorney with l!Iill lll~~n ycars of experience In tellelll'ch and writing I bllvc the time nceenllI}' (o r the sus tained. unintetnlptcd rescllrCb so Of'ten needed to win D cose. When your cue Is full y re~lIlII"chcd

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LITIGATION: Birmingham plaintiff's law firm la seeklng an etlomey with one to three years' litigatIOn experlenc&. Strong appellate writing skJlla elso essential. Insumnca and 4011< pIlIn Included. Salary commel'lsumte with experlenc&. Send rEtSUme to: Garrison end Sum mil. PC 2117 Magnolia Avenue. SOuth, Birmingham. AIBtlI.ma 35205. ENVIRONMENTAL AITQRNEY: The Soutrlern ErwlronmenUlI L8W Cenler, one 01 lhe ne.Uon·, leading environmental organlzaHons, Is Interviewing lor $ staH anorney posklonln lIS Deep SoI,Jth ollice In AlIan1e. Georgia, Posltlon requlros a lawyer with strong eced&mlcs, lOOt years' 1~lgallon elfperlence. erwironmenteilltigetion or adYocecy experience st ~y preferred. Competlliw &Ellery, e~cellenl benef~s. Send resume end three relerences to Heyley PlIrrish, Southern Erwlronmentel

Law Center. 201 W. Main Stre&t. Suite 14, CharloneSville. Virginia 22902·5056. ASSOCtATE: Atlentll oltlca of lnternB' tlonalltlw firm seeks l\lbOr end employment assoclete. SuC(:essful cendldata should hllve excellent acad· emic cr8(lential $ I;Ind s minimum of two yeara' eKperlence In employment litigation. Send resume and lew school trentlCript In confidence to Hunton end Willillms. Recruiting Administrator. NetlonsBlInk Plaza. Sulle 4t 00. 600 Peachtree Street. N. E.• Atl an ta. Georgie 30308-22 16. No phone calls or plecementlirms. please. EOElAA

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