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TheAlabama On th, COtIf1' Whu ter Di m ~ Located In !'\Orthwtst At~ma on the Tenneuu River in l..auderdale County. Whetler Dam Is 6,342 feet Ionll and 72 feel high. It wu built in 1933·1936 b)' the Tenncsstf Valley Authority as a unit of It. multl·purpose systems of dams. U.s reservoir is 74 milts long. Bnd in add ition to producing electricity. It helps

regulate noods. - PhQ/()(lroph bg P(/(II Crmt'lord, J/)

IN THIS ISSUE 106 I1USlNESS AND CONi>lIiRCIAJ. [,mGATION IN F8DBRAJ.. COIJkT'S " •••• ,"',. 107 STRESS MANACEMHrr t'OR LAWYERS •.•• • ..• • ••••••..••• , ••••••• , , 108 BooK Rt;Vlt:\VS: TIfI.: SOUIJJANE STRATAGEM • ••.• • .•.•• , , , •• , , , , , , ••

AlABAMA'S HUSINESS TAXt!S: A CHANGE IN DIRECTION IJg William D. J.Jndmry and Bingham D. Edwards, ir. . . . . . . . . . . . . . . . . . . .

III

DlVORCt: AND TAXt:S: WI"T EvERY DIVORCE ArroRN~1' Sl tOUW KNow Auour TAXES By MiduN!IA Kirtland ...........••• , • ........... , ..• • , . ,", •• 116

BRASIIJAN JUOCES ENJOV SECOND VISIT TO ASS ••• • •••••••••• • ••••••

121

Ti lE Docm.INE OF CII1EAT EMPTOR AND TI lE Dm TO DISClOSE MATERW. DEt1::CTS AND On IER CONDITIONS IN m E SALE OF SI:-IGI.t: FAMilY RESlDt:NTW. REAL ESTATE: DEfINING TIlt: I lOME BUYER'S LEGAl. RIGHTS Bu Bowdy J. HrotJ-'I .••.•• • , ••• , •• , .• • ••.••••••••• .•••. .• , . ••• 122

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P RESIDENT'S PAGE RH : Wade, how wo uld yo u alltU

your nnl arK month, In ornee? W8: nobert, r knew from the start whall was getting into since r had served on the ASS BOilrd of Bar Commissioners (or 13 years and I had

Talking with Wade Baxley 8y Robert A. I1,If'a/wr, edilor, The Alabamn Lilwyer

Booty year, The Alabama Lawyer editor ·sits down " with the Alabama Stale Oar presir/elJ/. /0 highlight some of the pr/tJidc.>n(s ar;complishm(mts and fIOllls. This parlicu/ar sessioll ,ui/II the l"'IW)'lI T edilor (lilt! the ASIJ pr(!sidL",t

lake£ 011special meal1in(l..~ince Robert Huffaker and ~~de IJaxley can lay claim /0 a ftieMship (' un begal! over 30lleors ago, i1l high school.

served a year ilS pruidcnt-elect. I'd say the first six m(lIllhs have been very

good, very meanin~{ul. I am grateful thal we haven't had II major controversial issue, such as tort reform, to clluse a rift between segments of the bar duro (ngthis lime, RH: How havt you focused on Inle· grating the vari ou ~ , peclll1ty bar, Into the programs of the , tate barf WB: When Dag Howl' was president sevH~1 yeaTS OII;!O, he called for a sum· mit on the legal profession and invited leaders of the various specialty ba r~, judges' anodallon! and large city bars to attend, The outgrowth of Ulat sum· mit was the creation of a task force con· sisting of presidenu and presidents. elecl of those groups, Past President Vic Loll and [ h~ve continued this task fo rce to show that the state bar needs to be lhe spoke~pe r$(ln for (Iff lawyers in our state and the umbrella organization for these specialty bar groups and IOtal bllr lI.uClCill li on~. We al§o w;mtto $Up' port the judiciary lind keep an open line: of communication between Ihe state: bar and all branches of the judiciary.

RII: Why 18 II so important to try to In\!{llve the 8peclalty groUp8 In the ASH? WB: The main reuon is to stop the divisiveness that has sometimes devel· oped between certain segments of the bllr. 1\1$0, progrllms of the state bilr ilre beneficial to all members. In the past. specialty bar groups-A1'LA, AorA, women, mlnoritie1, crimil1lll lawyer!, and others-have tended to "do their own thing" lind haven't attended annual meetings of the state bar. Also, memo bers of IIlese specialty groups haven't particip<lled in state b<lr govern<lllce and O~

"ARCH 2000

committee work. hI fllCt, ATLA created its own 10LTA (Interest On Lawyer Trust Accounts) progrllll"l. separate and ~part from the state bar. This "splinter. ing ofr' causes fragmentation of the organized bar and is not hellithy for the legal profession as a whole. RH: !lave )l<)u t een any tangible evl. dence that the efforll to have more Involvement by the B ~ci B lty hars iB actually coming to pan? WB: Yes, I have. Greg 8rced10\-e of Mobile WOIS the initial chairman of the task force appointed by Dag, and he has continued to be the chairman becau.1e he has been such an effectiVE leader. I think that our efforts have caused ATLh and other Spedillty b~rs to realize that we are noljust some elite il55OCi~tion in Montgomery running the state bar. The Bo.lrd of Bar Cornmi~iOl'le rs i$ mllde up of general practitioners, plaintiff lawyers, defen~ lawyers, big city lawyers lind small town la~ers. I h:l\lt ~een a diITerent attitude from membi!rs of ATLh who serve on the Board of 13M Comlllissioners, They now realize that the board is really a voice for aI/lawyers in Alabama and that bar commissioners do nol merely cater to the wishes of the big city bars or sponsor pro-business types of programs. [ dl:)n't think they r~alb:ed this until this task force was created.

RH: What other aren have bten your focal points? WB: I've tried to emphrsslze judicial reform. We absolutely have to go to a merit selection of judges, not only at lhe appellate courllevel, but also al the state oourt level. I wrote an article in the November issue of The tI/abam(l/Awllcr pointing out stances t<lken by the l3o;trd (If Bar Cornmi$sioners over the past decade concerning judicial reform. Following the publication of that article, I received calls and letters that were very supportive of a merit selection process. I have alsl:) talked with a number of altor·

neys, appellate court judges and trial C(lurt judges who strongly support merit selection. All we've got to do now is convince the general public and the tCl{islature of this need. which I don't believe is an insur· mountable problem. I think that both sides of the spectrum hm should nol be at odds about who tw conlrol o( the courts. I am 11 hopelus idealist and I strongly believe justice demands that couru be level piIlYin" fields. In recent years, you've seen Il lot of moncy being pumped into judicial campaigns, llnd these campaigns have become very CXI>ClUiive and very demean· ing. The concept tht public hilS is that whoever wins wilt decid~ i$Sues in favor of the side that filUnced th~m. That's not good (or our judicial system. Our judicial s)'5tem needs to be independent, (air, rea· sonable and balanced. RH: Will the AI. b. m. Slate Bar or any o( It, commlttcn or task (orcn hl v, any rolll in the upcoming judicial electlonl? W8: No, the organized bar cannot take pari In that. Of course, man)' stales have nonpartisan elections (or judicial offices. That's cerlainly a step in the right direction, but it's not the ulUrmle goal. We need to encourage good, quali. fied people to serve a5 judges. I think everyone understands thallhe selection of judges can't be taken totally out of politics. lIowever, we need to isolate and Insulate the process and remove it from the pollticlll process to a substantial dcgree In order 10 have an independent judiciary. Until we take judicial selection out of the purely political prote", It will continue lO De ex~nsive and very divisive. and a demeaning uperience (or candidates. RIt: Another arta drawing a good bit of dl lCUlilon recently il multI.dllclpll-

nary practice. Whl l I, the , laic bar doing to Iddreu that lu ut ? WB: You're Iryir1t 10 stump me, ilrcn'l you? Multi·disci/llinary prllctice, or MOP, would allow attorneys to partner and

Washington, D.C. That's not true in the 50 sl.alt$. due to the model rules of pro-

share fees with non·attorneys in other professions. From what I understand and whill ['ve read, this is an accepted prac· tice in Europe. It's becoming more and more acceptable in other Western nation5. What has happened is that some of the rn.'\ior accounting firms are trying to create business relationships wilh attorneys to provide u",ices not only for general accounting work and estate plan· ning, but al50 for geneTlllleg&1 services. I understand thai MOP already exisu in

fusional conduci prohibiting Ihis rela· tionshlp. A resolution allowing MDP was proposed by an ABA commir.sion on multi·disciplinary practice at the last annual meeting of the ABA in August 1999. Most siates had not had time to study how this would affect the practice of law as we know it. Asubstitute resolution was eventually adopted to allow adequate tin'le for state and local bars to further sludy the issue of MOP. I have appointed /I task force, chain:d by past president Vic Lott and composed of lawyers and lay members. who will be thoroughly reviewing this issue and reporting back to the Boord of liar Commissioners with a recommendation at some time in the near future, Hit: Hn the Hoard or Ih r Commin ionen laken I pOIIUon on Ihi. iu ut? WB: The board adopted a resolution IMt year asking our delegattJ 10 Ihe AlIA House of Delegates not to vote on ro1DP until ....oe had time to thoroughly sludy it.

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I think every slate has essentially taken this same pwlUon. It's probably !loing to be brought up 3gain I1t the annual m«ting of the ABA in July in New York. but keep in mind that whatever position the AliA eventually takes will have no effect on what our slate mayor may not do with MDP. II will be up to the Alabama State Bar and the Supreme Court of Alabama \0 chtlllge our rules of professional conduct to allow this pa.rtncring and a sharing of fees with non-attomeys. RH: I've "ked this question of your predeceuors and I' ll ask you the same.

Do you think that our disciplinary proceu I, functioning lufncl ently and, If 10. do you see th.t the involvement of layperson. on Ihe dbclplinary panel haa been helpful? WB: J think it', still being fine tuned. We just recently submItted a new set of model rules to our supreme court for consideration and adoption. Alabama Is one of the few slat~ bars in the nation that handles discipline in·house. Discipline in most other states islotaJly controlled by Iheir highest courts. Of course, our supreme court is the body

being utilited. The addition of layperwhich occurred five or six years ago, has been a \'ery. very good lhing. In fact. we had heard (rom a number of slates. who utilized laypersons before us, lhatlhese people lend to be more con· 5Clvative than the lawyer members of the discipline paneb. Additionally. they go out and lell the public thaI we do a dam good job in M!eln~ to it that lawyers are properly disciplined. I think that has prOVfd to be the case In our state I1S well. The laypersons who are involved in our process are very supportive of what we do In our handling of discipline. In my opinion, the legal profes. sion does a .substantially better job than any other profession as far as discipline. SOIlS,

AI IJrJ/l1l1f-Dfp"wlI Sludium .,l/h wlfiJ Joall Imd I(itIJ IllJmput/llK_

that eventually rules on :III disciplinary matters. The Suprtme Court of Alabollna has authorized the Alabama. State Bar to handle discipline. but the justices can take that away. Yes, I think it works. I think it has impl'O\lfd over the past 15 years thllt I've been a p:trt of lImt proctss. I've selVCd on disciplinary rmnels as a bar commissioner and I've served as n member of the Disciplinary Commission. One problem has been thai sometimes di(ferent panels have meted O\lt different pun· ishmenlJ (or lht SOlme type of offense. RH: 1I11 Ihal becn corncltd? W8: It has, to a grtat extent. We now have a better reporting process

RIf: I auume from your commenll lhat )'Ou ate aaU,Ined with how the di,l' d pllnat')' proteu III runctlonlng'f WB: Concerning our discipline process, do I think it's perfec t? No. Do I think it's in the process of gelling farrer and better? Yes. The disciplinary panels do a good job. The Ceneral Counsel's o(fice does an excellent job In making sure that non·meritorious complaints

..... R .. .. 200Q , . .

are screened out from the very begin. ning. The Disciplinary Commission makes sure IhM meritorious complalnl$ will be handled in a proper and profes. sional manner and thllt the charged lllwyer will he given due process. Recent emphusis has been upon more uniform punishment for similar offenses. J think that our discipline process is in good shape and should continue to Improve In the years to come. RII: What's ahead for Wade Baxley In the next six month,? WB: Chief Justice Pen')' llooper and I are appointing a joint task force on pro SI1 litigation. This stems from the fact that we're seeing more and more liti· gants coming into court at lhe various levels and repr~nling themselves pro suo In some states, such as ~'Iorida and Arizona, pro se litijf.1tion has reached somewhat an epidemic situation, Arizona has even created ~ I f·help centtrs for liti· gants in dome!tic casts that provide forms. I don't know if everyone is aware of this, but litiganl$ have a constitutional right in Alabama to appear in court pro se, lfajudge rtq ulres alltlgant to come bnck into court with an nttorney, that requirement probably violates our siate corutitution. Right now we are in the process of gathering statistics through the Administrative Office of Courts showing where pro sc litigants are appearing, I certainly don't think the AIDb;Ima S\;;Ite I3<lr and state judp;cs ~hould encourage litigants to appear in courtprose, It's usually not in an individual's best in~ete$t to appear pro se. B)' the .same token, if thlse litigants do choose to appe3r pro sc, then they should be given enough access to the court and enough help that the judges

can render a proper decision. We've seen more 01 these liti· gants from what I would call the "working poor." They earn too much to IJ,Illllfy (or legal aid, but they are not wealthy enough to hi re an attorne), to appear for them. RII: What , lie do you wanl stare with our nade,.? WB: I believe thoi evel)' I'k WI/, So", fhmklin (mil ItI7dtr - Autnm 1m 8xi!alrlW 0:/1111<;/1 mwll'lf! in Sumkslln Inwyer owes it to the profes· sion to give a PQrti(l1 of his or her time In some t~ of strvice, whether it be the Volunteer Lawyers of the attomey$ here in the Wiregrass area of Alabama, The Wiregras5 is II great Program, a committee of the state bar or venue in which to practice law, This is service in .speciall)' bar associations, I feel because lawytrs and judges hue general\ieI)' strongly aboulthat. M), friend, Phil ly act professionally and civilly toward Adam. of Opelika, who also served 115 each other, in Md out of court. state bar president, once told me he thought lhe altitude. o( most local 1>.115 1111 : lIow would you aue .. the Wa.'l tim! if the Alabama State Bar would QUl lity of u l'llice pl'Q\llded by lhe Ila(( IClIve them alQlll!, they would IClIve the at the Alabama S1ate 8u? Alabama State Bar alone. That's not a W8: I'm glad)'Ou asked that because healthy attitude. We need to encourage IaW)'tTS to get more involved. We can usu· I wanted to mention how well·run our all)' nnd Ume for hlJ'lting, fishing or, in state bar is by its fu ll·time staff, Keith my CMe, golf, ar\d I know that we C.'lIl cerNorman doo.,n outstanding job, He hM followed up well to what Reg,(le Hamner tal nl), nnd time 10 MYVe our profession, did during his 25 years of service. Tony McLain also dotS II great job as genual lUI: In clo. lng, how does it feel to counsel. Our stale bar's full ·tlme slaff is be a member of that famous llw school excellent. Every program is run by comell" of 1968? petent and professional w.(f personnel. W8: I assume )Qu're being facetious On many occasioru, I've said that our since you and I are both members of that state bar is Ii model thnt organized bars great claS5. Seriously, thou~h. I feel vel)' in other states try to emulate, honored to halle been part of thal class, We've had three Alabama Slate Ilar PTesiRII: \ {xi come (rom a (amily of dtnll from that elMS, 8111 Scruggl , Phil 1aW)'tn-)'Our (ather wu. Ia~ and a Adam, and me. We've had a Alabama judge. and )'()ur imlloo Bill I, I 1aW)'er Supreme Court Justice, Ten')' Butll, and former IHomey genml. Art IhI!rt We've had a dean of the Universil)' o( goln" 10 be other lawyers In your family? Alabama School of Law, Chn lu Gamble. WI) : l\!, a maHer of fact, my olde~t iIOn, We've had a president of Ihe University o( Alabama, Richard Thigpen, We've had lIamp, Is at the University of Alabama In law school right now, He'll be Oul In a the editor of The Alabama IAwger, couple of years and in practice with me, I whose name escapes me right now. hope, My youngest son, Keener, who is We've had several d rcuit court judges, Mmed after my father, has just completed We've had four pruidents of the ATlA, Lan')' Mom •. Andy Bom•• Greg his "lOA and is working in Birmingham. He has also expressed an Interest in Cusimano and Delaine Mountain. I'm very proud of our class, The elMS of '68 attending law school. At last count, brother 3111 ho,d fou r sons and a daughter, and has attorneys practicing in CV(!I)' area of I'm sure $Ome of them will become. the State of Alabama-big cities, rural lawytrs, I'm proud to be a lawyer, and I areM, from the tri·cities and Ft, Payne in hope that members 0{ m} family will con· the northern corners to Dothan and Unue to be active in the p-actice of law in ,,1obile in the southern comers and all the State of Alabama. • areas in between. I "m also equally proud 10

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EXECUTIVE DIRECTOR'S REPORT fJy Keith I), Norman

Looking Back at 60 Years of Alabama's Legal Profession, Part III: The 1970s1

Keith B. NOl'nMln

...... CH 2000

decade of the '705 began with a Alabilma Supreme T henine-member Courlsitting for the fi rst time. Hugh Maddox of Montgomery and former Circuit Judge Dan T, 1>lcCnll Of f.lobile

were sworn in as the eighth and ninth justices of the newly enlarged court. Likewise, the newly constituted court of civil appeals witnessed the investiture of its three new members: Robert P. Bradley, L. Charles Wright and T. Werth Thagard. J.O. Sentell. editor of The Alabama /..uwy(!r ilnd supreme COllrl clerk, wrote "The Supreme Court of Alnbamll- 1820- 197Q-A Climpse," which appeared in the J.au-yer. II provided ant

of the (irsl concise histories of Alabama's highes t court. " Ilhysicllln-

Patient Confidence: Legal E(fectJ o( Computerization of Records" was an early indicalion of concern with the potential impact of computerization. Similarly, the 1970 article, "The Need fo r Constitutional Ilevision in Alabama," would be the nr51 of many articles and committee report$ recommendinglhe replacement of Alabama'S antiquated constitution. The Alabama State Bllr hlld beco r'l'l ~ a mllndatory bar by virtue of a 1923 leg. islative act. In the "f' resident's Message." state bar President Patrick W. Hichardson of HuntJvilie wrote: Considering that there was only one such act in existence to serve as a model when OUTS was drawn in 1923, we must credit its draftsmen with incredible foresight and skill. By the broad simplicity of its provi s ion~, investing <luthorily over regulation ri the practice of law In the BOIlrd of Bar Commissioners (JUbjectlo

Supreme Court review) the Act has created a uniquely nexible and respQn5ive vehicle. ~'or the 1970-7 1 bar year. there were 40 different committees, including tile Committee on Automotive neparation Pillns, CommitlH on D<lla Retrieval and Computers, Screening Committee on State Court Judges, and COrllr'l'litlee Orl L.lwyers and Title Insurance Companies. Former state bar President Howell Heni n was sworn in as IIlabama'~ 24th chief justice in 1971 . The Client Security Pund began operation that )'i:ar with an initial fu nding of $15,000. The $upreme court declined to approve canons of clhic$ for laW)ll:r$ in govemment which hOld Ix!cn propQ5(!d by the state bar. Miss fo.lol1ill jordan became thc nrst female clerk of lin appellate court in Alab;lma when she was sworn in as clerk of the Alabllma Court of Criminal API>ClIls. Charles Y. Cameron became the nrst director of cOll rts. State bar President Robert Albritton o( Andalusia reported in the "President's Page" on the bar.sup. ported "court reforms," including rulemaking authority for the supreme court, " sY5tem of court management and leg路 i~lative IIpprop r iation~ for the defense of indigents charged with crimes. President Albritton 111$0 highlighted several other matters being coruidcred by the bar, including an internship for third-year law students, long路range planning for the bar, economi c~ of law practice, closer liaison with local bars, and revision of the canons of ethics. 'fWo major ngures of the legal profession died in 1971. they were Unit~d Slates Supreme Court Justice Ilugh Black <lnd former Alllbama Supreme Court Chief Justice Ed Livingston.

Comprehensive judicial reform legislation was passed during the regular and SPtcial sessions of the legislature in 1972. The 17 legislative items in the judicilll reform package included rulemaking authority for the ~upremt court, mandatory retirement at aile 70 for judges, two additional Judges for the court of criminal appeals, a constitutional amendment to create a Judicial commiS5ion to Investigate complainlS against judges, and the abolition of the omce of justice of the peace. With the pmspect of rule-making authority, the supreme court appointed a committee to study proposed lules of civil ilnd appellate procedurt. A host of articles appeared in the Lawyer dealing with the proposed new rules. Champ Lyons. lin attorney in Montgomery and (uture a$~QCiate justice of the Alabama Supreme Court, wrote his first article fo r the IAwuer entitled. "Proposed Rules of Practice in Alabama.~ An article by David A. Bagwell of Mobile, ~ l1ench Imd Ballot in Alabama," called attention to the di$CIdvantages of partisan election of judges and r«ommended a serious dialogue to examine other means of selecting judges. Another 1972 article. "Law Clerkships- Three Inside Views." by Arthur File, Hobert C. I'otts and Donald B. Swe~ney, Jr., coycred clerkships with the Alabama Supreme Court, Federal District Court and U. S. Court of Appeals and was the fir~t article appear· ingln the LAwver ~ea lin g extensively with judicial clerkships. In 1972. the stale bar received atI Award of "1erit Honorable "1ention from the American Bar Msociation. Camille W. Cook became the director of conlinuing legal education (or the University of Alabama replacing Doug l..1nford. Judge Annie Lola Price died that year. In 1951 , Judge [Irice had become the first female to sClVe on an appellate courl in Alabama. She became presiding judge of the (ourt of aPl~als in 1962 and presiding Judge of the (ourt of criminal appeals with that court's crtatlon in 1969. In 19TJ, the state bar installed a WATS line to better serve members and, as state bar President I)rew Redden described, to be the "source" for service for the legal pro(eS5ion. The Boord of Bar Commissioners approved an Anti-trust Law Section and tht multi·state bar

Justice Howell Henin received the Herbert-Lincoln Harley Award from the American Judicature Society ror his tireless efforts in promoting judicial reform in Alab:lma. The Environmental Law Section was chartered by the Board of Bar Commissioners;u the eighth practice section of tile bar. The nrst state bar meeting held ou15lde Alablll'IU WOlS in Biloxi that year. The Alabama Bar t'oundation. the Alabama Law School Foundation and the state bar's Committee on I'rofwlonall::conomics published the nut set of "How to Do Ie books anll forms. The supreme court appr~d Ihe Alabama Pattem Jury Instructions, Cumberland law I~ofes.sor Janie L. Shores, who would later be elect· ed to the supreme court, had served as the reporter for the Alabama Jury Chaqte Committee that had drafted the pattern jury instructions. The new Judicial Article was ratified by volers in Incember 1973. by a 2-1 margin. The Al3bama Constitution Commission, consisting of lawytl'$, judges and citizens and chaired by lawytr Conrad M. t'owler, probate judge of Shelby County, played a signifi-

eXZlm for use beginning with the July 1973 b:lr exam. A 1.Ccond Citiren's Conference on A1abama's judicial system in April of that year r«ulted in a u con _ sensus statement~ that called for the follOWing: I) unification of state trial courts under lhe superviSion rJ the supreme court; 2) non-political merit selection of judges with retention elections; and 3) rele;ues on recognizance instead of bail, court control of criminal dockel$, full · time prosecutors. IIdeqUo'lte compen$CI' tion for appointed defense counsel, and speedy trials, An article by AlabamA native Robert C. Ford, project director of the American Bar Assoclation Activation Program for Correctiol'lll Reform enti· tled. "The Bar's Responsibility for Prison Reform." urged the bar to pursue needed prison reforms. The bar re~pond ed with state bar President Rod Nachman's appointment of the Cl)rrcctional Institutions and Procedures Committee. This committee consisttd of both lawyers and IllY persons to study the Alabama prison problem. On July3 1973, theAl:iliama Rules of Civil l>rocedure became effective. Chief

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cOlnt role in the public's ovcrv.'helming acceptance of the new Judicial Article. A long-rllnge planning study com!'ni,ssion in 1974, chrlfred by Oliver Brantley of Ttoy, studied the issue of lawyer specialization and certification and lhe relationship of CI.E to specialization. 'fhe Alabama Cod(/. of Professiollal Respollsibilll.1J was approved by the supreme court after its recomment!..,Uon by the bllr, and I:Nlcame effective October 1. Alabatn'llaw Professor M. Clinton Ncece served M chief reporter for the Alabama Crill'.lnlll Code Project of the Alabama Law Institute. His article, "Towards a New Criminal Code for Alabama," appeared in The tllaoomll lAwyer and pointed out the many deficiencies in At~bami)'s existing criminal law. The supreme court approved a thirdyear law student practice rule In 1974. The Proposed New nules of Appellate Procedure Advi ~ory Committee lind the COOs Itevision COrllmillee were chaired by Opelika lawyers lacob A. Walker, Jr. and C, C, "130" Torbert, respectively, A3 women lawyers were starti ng to join Ihe legal profession in ever.larger numbers. the article "Why Can't a Woman Be More Like a Man, or Visa VerSo'?" by Camille Cook noted: The issue iJ not whether men or women have 'superior rights: it is that different treatment based solely on sexual characteristics is seldom justifiable and that its obliteration will requi re a substantial re~isi on of the 100w. [n an addre$S before lhe Southern Conference of Bar Presidents in Oclober 1974, Judge I~rank M. Johnson highlighted the role and the need for the organized bar in providinl1lcgal sClVices to those who were unable tOllfford them. The year 1975 witnessed both high inflation !l11d long gasoline Hnes with the energy crilis. An article In the Lawyer entitled, "[nflation is Illegal," challenged inflation as being an unconstitutional taking. State bar f' resident Alto V, Lee, [[I of Dothan reported in his presidential address at the annual meeting that summer that there were 36 sec· tjQn~, committees and task forces of the bar at work. Nineteen seventy-five also m<lrked MUes Law School's first enlering class. Bar member Ceorge D. Schrader, It. colonel. USJ\I<', reflected on a goal for \10 .... ntH:rooo

more lawyel'$ to consider- retirement In his article, "The Attorney Retired," Colonel Schrader wrote; Pcrhaps like olJ soldiers, old lawyers never retire. They just prllctice away. Realistically, however, IlIwyeu should review relirement as a desirable goal and as a reward for a life of service to their profession and society. Cadsden attornty Robert L. f.1cCurley was named the new director of the Alabama Law Institute. He followed L. Vastine Stabler, Jr., the institute's first fu ll·time director, Three new associate justices joined the Alabama Supreme Court: former court of appeals Judge Renea(r P. Almon, t Eric Embl')l of Birmingham and Janie L. Shores, also of I3irminaham. Justice Shores becilme Alabama'~ fir$t female 'ls5()Ciatc justice. John H. Wilkerson, Jr. wa~ named cbk of the court of civil lIppeals lhn.l sn.me year. I~ules of diSCiplinary enforcement were recommended by lhe stale bar's Thsk Force on Professional Discipline fo r the supreme court's consideration. The Young Lawycrs' Section received two lop awards at the American Bar Association's Annual Meeting in 1975. The $Cction, chaind by fv hrre AIM President Lee Cooper of BirminJ.lhilm. wa~ recognized for its legislative progrllm delliing with the Judicial Article and improvement~ In Alabama's bail bond law, as weUas iu Volunteers in Parole Project. The Judicial Article Implementation Act, companion to the Judicial Article, wu enacted. The "new" tort of outrage was featured (or the first time in an article in The Alutxlffl(l lAwyer. The suprEme court adopted Alabama's first Canons of Judicial Ethics in December 1975. The nllllon's bicentennial in 1976 wa~ celebrated by the }-<uuyer with a special edition. [n his "State of lhe Judiciary." Chief Justice ]'ieflirl responded to critics who were claiming that the unified judicial system would put the state into receivership, He reported that the judi. Cial system would ~ctually crcilte a S\lr· plus. Justice Pelham Merrill retired after 23 years 011 the stat~'s highest court. Sam A. Beatty fo llowed lu~ti ce Merrill as IIss()Ciate justice. The supreme court's adviSOry com mittee on rules for defending indigents was

chaired by William M. Clark of Birmingham. ~'u ture bu Presidenl Wilde H. Baxley of Dothan served as vice-chair of that comr'r'l ittce. The state bar's active membership in 1977 totaled nearly 5,000. Tht stllte bar's budget for the 1977·78 fiscal year was $330,397, Howell HeOin stepped down as chief justice and C, C, "130" Torberl was elected in 1977 as Alabama's 25th chief justice, A/(Ibumu RI!POrl_( and AI(Joom(J Awe/l(Jle Courls Reporls were discontinued that year and the decision~ of Alabllma's three appellate courLs are reprinted in a single volume, Alabama Reporler Soulhem Second beginning with volume 33 1-333 o( the Alabama edition of lhe Soullwm R('porler, One hundred and sixty applicants So,1 for the t'ebruary bar exam. fhe Cod~ or Alabama 1940 and the /958 Recompi!alion were replaced by the Code or AI(J/wma 1975. "he state bllr'$ code r~vi$ion COmmi ttee plilyed a slgniflcOlnt role in the di::velollment of the new code. The Vifth Ci rcuit Judicial Conference was held in Birminghllm, the fi rst time in the 34-year history of the meeting thallhe conference was held in Alabilma. The Alabama Stlile Bar Rules of Disciplinary Enforcement became effective in 1977. The state bar L.1wyer I~eferral Service commenced operation in 1978, The subcommittee studyinR volUntary specialization released its report analyzing the concept of Iliwyer ~peciali7.at i!)n and suggested Lhat a 1IIlin bt adopted in Alabama. The recommendation WOlS voted down by the Board of Dlir Commissioners. Judge John Scott, (or· mer secretary and executive director of the state bar, died in Fehruilry 1978, [)urinR Ihe 1978 legislative session, I~wyer JQC Cilrpenter of f,10ntgomery sClVcd as the state bar's first legislative counsel. The state bar's first public service c(lrl\mercials rlln on televi$ion. The two commercials discu!~ed the import:lIlce of having II will and tips for the home buyer. I'roposed rules of crim inal procedure were first published in 1978. Thllassce lawyer Sonny Hornsby, who would later be elected chief justice, served as state bar president. 'rhe state bar's fi rst operational s\lrvey by a visitingleam from the American Bar Association was cOrlducted during President Hornsby's term. The lawyers

admitted to the Aillbama Academy of Honor in 1978 were: William Oouglll$ Arlln(. George Alexander LtMaistre, Pelham Jones Merrill , Seybourn Harris Lynne, Bernard Andrew Monaghan, Jr.. and Armistead Inge Selden, Jr, An article appearing in Ihe LoWlier entitled, "Beflinner's Guide to Word Proceulng Terminology," was a first· time introduction for many lawyers 10 computer terms such a$ diskette, electronic mail, hardware, modem, OCR (optical character reader), and software. The new law center at the Univtrsity of Alabama was completed in 1978. Ajuror qualification act was enacted by the leg· islature 10 provide I jut')' box where identifiable claS5es of citizens were no longer systematically eJlcluded from grand lind petit juries. The decade of Ihe seventies concluded wlth the bar celebrating iL~ centennial. 1879- 1979. State roT Presideni llugh W. Roberts, Jr. of 'fusealoosll announced in his president's n-.ewge that the Federal Trade Commiuion had contacted the Alabama State Hllr II! a p&rt of its

nationwide invC5tigation of the legal profusion. Judge Frank M. Johnson, Jr. delivered the keynote addreu at a joint muting of the National Conference of Bar Presid~nts and the National Association of Bar ~:xecutivu in Atlanta in Februat')' 1979. His address was enti· lied "Judicial Independence." Asurvey of lawyer population ratios of Alabamll counties appearing in the I.awller found that Montgomery County had more lawyers based on population than any other of Alabama's 67 counties, The survty indicated that approximately three of every 1,000 people in t-1ontgomery County were lawyt:rs. The counly with the lowest rlltlo was Bibb County with approximately two of C\!I:ry 10.000 residents being a lawyer. The IAtt'Yer con· tinued to Include many practice.related articles. "The rederal and Alabama Hules of i::vidence," "To Appeal or Not to Appcal,~ "The New Sankruptcy Code," and "The New Hules of Discipline and Their Practical Applicatlon" were examples of some of the articles appearing on the pages of the journal in 1979 dealing

with recently enacted rules. Robert L I'otts of Florence served as president of the Young Lawyers' Section. The sec· tion's 17 committees included the Public Information Committee, Disaster I-:mergency Legal Assistance COmmittee, Notary Public f.hnual Distribution Committee ilnd Bar Admissions Committee. A helpful article ~nlit1ed, "Prepar:.tlon fo r a I.egal Career." by Justice Sam Beatty helped aspiring lawyers prepare (or their careers as lawyers. The IIrUcle "Ltgal Malpractice ~ by Ralph Gaines of Thlladega explained the legal standard (or malpractice, the burden of proof, areas of liability. damages, and limitations o( actions. Concerning this new trend of cases. Mr. Gaines aptly noted, "Our profession hilS reached II milestone." • Endnote Duot 10 ~ 1itI'iIII~. ~

fit; jII'riod 0I1hI 1'701 could ~ ~ In "'M III We wi! _lOdOM ........ wiIh ""M IV In ...

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Divorce on the Beach The Family Law Section of the Alabama State Bar presents

"Divorce on the Beach XIV" July 20-22, 2000 • Sandestin Golf and Beach Resort Call (800) 320-8115 for hotel reservations (group #146717) *More information coming soon/"* .... "CH __

' ll'

MEMORIALS Augusta Elliott Wilson ~; lIi ott Mi~~i$sippi

Judge Jeri Blankenship

ugusta Wilson was born in A 1939 and passed away in Jackson,

ith the untimely passing of Judge W Jeri Blankenship, the legal com· munity of Huntsville and

Mississippi on Decenlber 22, 1999 of

County has lost an admired and beloved member of the profession and lhe Stale of Alabama has lost 01 valued and respected public serv<lnt. l udge Blanktnshlp r~ce:ivc:d a Bachelor of Arts degree from Ule University of Alabama in 1966 .....here she was a member of Phi Beta Kappa and, lherea:J'ter, taught in public an~ private schools from 1967 to 1972. In 1976, J\ldge Blankenship received her l~w de~r« from the University of Alaoo/ll3 School of Law and then :served in clerkship positions with Justice Eric £mbryof the Supreme Court (If AIab.1ma and with Judge Joseph Colquitt of the CirQJit Court of 'JUsc<lloosa County. After moving to Huntsville, leri Blankenship demonstrated her high level of legal skill, dedication and professional· ism and. by doing 00, clCIIYI)! justified her appointment as a district court judge of Madiwn County in 1981. Having confinned her skill and strength as a jurist by her oound judgment. hard \\IOrk and fairne~~, Judge Blankenship became the first \\lOman circuitjudge in !'>1i1dison County upon her IIPpQintment to the court In 1987. a po5ition to which ~he was twice selected subsequent to her appointment. ultimately serving as the presiding judge of the circuit court. Judge Blankenship CIIrncd the respect of those who came before her by the fllir· ness of her judgment and the evenness of her demeanor. She was able to maintain her wit and common touch witho~lt ${Icri· Iking the respect 01 the office that she held. frequently USing her sense of humor and her candor as effective tools in eliminating conflicts lind resolving disputes. Also, l udge Blanktruhip deIllonstrllted a strength of character and uncom· mon valor lIS she .....aged a courageous fight against the illness that ultimately claimed her, while being ever mindful of

Ro§cdale,

on M\l rch 12,

heart failure. Wil~on attended Stratford

1-10111 Preparatory School and Vanderbilt University where she was a member of the Kappa Alpha Theta sorority. She

received her master's degree in ~nglish literature (rom Ole Miss and her Juris Doctorate (rom Catholic University Law School in Washington, D,C .. where she w..s on tilt editorial st.I(( of the Will Journal. Wilson was the recipient of many IIcadernlc lind $chohmhip hOnors

and taught English IitcTOlture at [)eIU State University. She was admitted to the Alabama State Bar in 1973. Augusta Wilson was forme r publica. tions director of lhe Democratic National Committee in Washington, D.C., and a congressional staff member. As a 5t"ff member, Wilson was instrumental in drafting the Fair Credit Reporting Act of 1971 . She was execulive: M$i~tMt to the late Winthrop Rockefe:lle:r, governor of Arkansas. Augusta Elliott Wilson was thl;! author of a book entitled. uad(!,. /." Ihe flous#!, published by Parthenon Press. Augusta Wilson had been a land developer and an insurance agent In Pascagoula, Mississippi and practiced law in Mobile from 1973 until 1995, when she retired. Wilson was the Democratic party nominee for Congress for the ~'irst District of Alabama in 1974. She is survived by her sisler, Mary Eli1.llbeth Wilt.(ln Pierce of Mobile; her brother, William Roberts Wil~on, lr. of lackson; her nIeces, Mary Eliz<lbeUl Milek, Elizabeth Ann Wilson, AuguSUl Elliolt Wilson and Dana Oldllnij and nephews William Roberts Wilson. 111 and Mark B1~nton . Wilson Wll! the daughter of the late Mr. And Mrs. William Roberu Wilson. Sr. of Rosedille.

Wllli ~ m

Robert Wilson. Jr.

M~dj son

the obligations of her position and, in so doing. established a standard of per· sonal and professional behavior of the highest degree. While the passing of this tndy fine indio vidual and public servant is a loss to our profession, our community and our state. all who wtre privileged to know Judge leri Blankenship have been ble.\Sed by the example of a life well lived, a community well stMd and a.1)fOrt~lon practiced at the highest level of skill and honor. The Huntsville-Madison Courlly Bar Association and the community have suffered a great loss in Ihe passing of Judge Jeri Blankenship and we sympathetically join with her husband, Clyde Alan Blankenship, her mother, Norma B. Burnette, and the other members of her family in celebrating the life, recogni~ing the Ilecomp li ~h ments and honorIng the name lind legacy of Judge l eri Blankenship. - Charles C. Robinson, pNl ldenl, Ifunllvllle-Madison County Bar Au oclatlon

F. Michael Ford Michael Ford, a distinguished and E • respected member of the 'tUscaloosa County Har Association, passed away on April 25, 1999 in Tuscaloosa County at the age of 51. He was born in Tuscaloosa. and attended undergraduate school at Ihe University of Alabama, where he lettered in foolblill in 1966, 1967 and 1968. He was selected 10 the fint learn All SEC in 1967 and 1968 and was selected to the All SEC Academic Ttllm In 1968. While at the University, he was instrumental in securing the chapter fo r Campus Crusade for Christ and was also active in the Fellowship of Christian Athletes. Upon graduation from the University of Alllbllr'rlll. he attended the University's

School of Law, gndualing with a Juris Doctor degree; hf WM admitted to the Alabama State Bar in 1975, and began practici ng law that year, In 1978, he was a founding member of the firm o( Ford, HcElvy & Ford in Tuscaloosa, where he practiced lmtiil984, at which time he left the practice d law to engage in (ulltime church work and Christian ministry, a call which he long sensed on his life. After service in Christian ministry for a number of y?ar~, he returned to the active practice of law in 1991 in Tuscaloosa, where he practiced unlit his untimely and unfortunate death. During the course of his life, many people of all walks of life were served by his caring friendship, counsel and selfless service. He will be remembered for his intellect, keen sense of humor and contagious laughter and personality. ~: Hichael Ford was a man with a deep devolion to his five children: Frank Michael Ford, Jr., Favor Pord, Porrest Ford. Joanna Ford, and Camille Claire Vord. In addition to his children, he is survived by his wife, mother, two broth· ers, and many nieces and nephews. The Tuscaloosa County Bar Association mourns the passing of ~: Hichael ~'ord and honors the memory of our friend and fellow member. - Charles H, Malone. PTeRldent. 'J'uacaloo!l Cou nty Dar An oelallon

James T. Tatum, Jr. he Huntsville-Madison County Bar Association suffered the loss of one of its most highly respected and beloved members by the death of James T. Thtum, Jr. on September 8, 1999. Jim was born on May 28,1931 in Birminllham to James T. and Katherine McKen1.ie Thtum. I-Ie received his Bachelor's of Mechanical Engineerinll degree from Auburn Universi ty in 1953 and his law degree from the University

of Alabama School of l..aw in 1962, where he received nUlT'lerOU$ honor~ and selVed as president of the law school $ludent body. Jim alsO' served his country as fI first lieulenflnt in the United States Army Corps of Engineers. He was a respected and f1dmired member of the Huntsville-Madison County Bar Association fo r over 35 years, being elected president in 1985, and where he practiced law as a partner in the firm of Berry, Ables, Thtum, Baxtcr, Parker & H.. ll. Jim was a member of the Episcopal Church of the Nativit}·, giving un~e l fi$h Iy of his time and efforts to numerous civic and charitable organizations and W&S honored to serve on the board of trustees of his beloved Auburn University for over 13 years, Through his ski llful and diligent prac· tice of his profession, his pride in and devotion to his community, and his hillh level of character and courteous demeanor. he pe r~onified the very best traits of a citizc:n .. nd lawyer and set an cKllmple to which all lawyers should aspire. The Huntsville-Madison County Bar Association was honored to count Jim Thhlm as one of its o.... n and joins in sympathy with his wife. Dana Lee Thhlm; his children, William 13, Thtum, Terri Thtum Estess, Jamie Thtum Brown, Terese Estess, Jamie Tatum. Philip I,ee I.ehman, and Julie Lehmiln Durk; hi$ $ix Arandchildren: and the other members of his family .. nd loved ones. - Charles G. Robinson , president. Huntsville-Madison COUJl~ Bar Association

W. B. Femambucq, Sr. he Birmingham Bar Association T lost a true genliemen with lhe de<llh of B. Fernambw;:q, Sr. on W.

December 23, 1997 at the age of 75. Bill was a lifelong resident of Birmingham, and was married to his childhood sweetheart, Georgia, fo r 52 years. They had three sons and five grandsons, along with many nieces and nephews. Bill graduated from the Univwity of Alabama, both undergraduate lind law school, lind was an enthusiastic sup· porter of the Crimson Tide, He was also very active al l..akeside Baptist Church. Bill WilS one of the founding members of the firm of Huie, Fernambucq & Stewart, and he had prOlcticrd law since 1951. One (If the trllditions he started at Huie, Ferambucq & Stewart was cooking breakfast on Friday mornings for everyone at the office. He loved to cook, not only for his law fi rm but for his fllmily, and wore colorful outfits on special OWl sions and holidays. He also loved playing with his grandsons in his later years. Bill was known at his firm and throughout the legal community of Birmingham for his humor, kindness, integrity and profe~sionalism. He was a lrue gentlemen in every sense of the word. This resolution is offered as a record of our admiration and ..JfectiOl) for Bill Fernambucq and of our condolences to his wife, sons and thei r farllilies. - S. Shay Simplu, president. Blrml nghlm Bl r Assoclltron

Judge Drayton N. James

he Birmingham Bar Association lost one of Its most distingui$hed membcrs and judges through the death of Judge Drayton N. James on December 23. 1997 at the aile of 59. Judge James grew up In Auburn and went to Auburn Univeuity for his undergraduate degree. Even at that stage in his life. he loved fa~t cau. He then attended the University of Alabama School of Law and was admitted to the Alilbilma Stille Bar in 1969.

Judge James had a distinguished law practice with Charles 1Yler Clark for many )'tars before he went on the bench, As a lawyer, he was known as a very (air, calm, kind and professional advocate, Thou same qualities served him well for the years he served as II. circuit judge for the Tenth Judicial Circuit. Litigants belore Judge James were always treated with respect. kind· ness and profeS$ionalism, He WIlS great· Iy re$pected as a trial judge by memo bers of the IJirmingham Bar Association. He was a loving husband to his wife, Billie, and lOVing father to his daughter, Tracy. He was II very active mcml>er at St. Luke's Episc()pal Church and was greatly respected by all In that congr~ gation. /1$ mentioned above. Judge James IOvtd (ast cars. ~specially Ponches. and tinkering with them.

This resolution is offered a5 a record of our admiration and arf~clion for Judge Drayton N. James and of our oon· dolences to his wife, daughter and other members of his family. - S. Shay Samplu . prelldenl. Birmingham Har Auoc.latlon

R. A. Norred

he Birmingham Bar Association lost one of its most distinguished members lhroulth the death of It A. Norred on NOvtmber 21. 1998 at the age of 71. Bob Norrtd WM a veteran of the United SUtes Army, having $ClVCd in the 82nd Airborne Division. I-Ie graduated from the University of Alabama School of Law in 1951 and had a diJtinguished legal career Ihereaner, wh~ch Included being II

prosteutor In Calhoun Coonty, in priv;lle practice in many courts of the slate, and, especially, in representing Jim Walttr Homes for the past 35 )'tan, l10b was a loving husband to his wife, Helon, and a wonderful father to his son, "lichael, and daughters Stephanie and Shelby. He also had three grand. daughters whom he love~ vel')' much. In addition, Bob was vel')' active and involved with Kair05 Prison Minis!1')' for many years and was a very aclive memo ber of SI. Stephen's Episcopal Church, serving as scnior warden OIl the vcstry. This resolution is offered a5 a record of our admiration and af(cction (or R. A, Norred and of our condolences to his wife, son. daughters and the other members of his (amily. - S. Shay Samplu, pnlldent. mrmlngham liar Aflod.Uon

Alonzo. Reynold, Thornu. Jr. MobifB Admitted: 196..1 Died: Jufll8, 1999

Nle:r.er. Charln Mahlon Cullman Admitled: 1975 Died: Oecember 16. 1999

Uamll. Sidney Moxey Mobile Admitted: 1954 Died: November 20, 1999

Steagall, lIenry Bu corn, II Ozark

Admitted: 1951 Dietl: Nowmbur 20, 1999

11011. John nenJamln Plarer/at Arlmitfed: 1971 DIed: IJ«ember 6. 1999

Maya. Welley Todd PM Campbell Admilled: Apd130. 1999 Died: Jul!! 10, 1999

Knight. Andrew lIendrix Birmingham Arlmilled: 19.10 Died: IJ«embm- 6, 1999

Melnllh, Hue)' Dwight, Jr. Dothan Admitted: 1949 Died: November 20, 1999

... .. R C H .......

Wilion. Au,ulla Ellioll Jacksan. /oIS

Admitted: 1973 Died: D«ember 22. 1999 Mandt, John Frtderlck Birmingham Admitted: 1982 Died: Januarg 13, 2000

ABOUT MEMBERS, AMONG FIRMS

Due to the huge Increase in nolices (or ~Abo u t 1'o1embers, Among Fi rm5,~ The Alabama LAwyur wi ll no longer publish addressu and telephone num· bers unle.. the announcement relates to the opening or address change of a fi rm or $010 practice. Please continue to send in name antVor addre$s changes to the Alabama Stale Bar fo1 cmbership Department, al (334) 26 1·6.110 (f/lx) or 1',0. Box 67 1. Monlgomel')' 36 101.

Todd O. Wataon announces the opening of his offict lit 102 Court Slrett, Evergreen, 3640 1. Phone (334) 578- 13.10.

Mark D. Ryan announces the opening of his office. Mark O. Ryan. p,e. Offices are lotated at 100 E. First Street. Bay f.1inette, 365()7. Phone (334) 580-0500. Anllda 1.. Kimbrough announces lhe opening of her office al lM Main Stred, EutllW, 35462. Phone (205) 372·9635.

Among Firm. Leon Y. Sadler, IV announces the rormation of Leon Y. Sadler, IV L.L.C. Offices are located at 2702 8th Street. Tusc.lloosa. 35401. Phone (205) 344·5848. The Marlin Mediation Group announces that it has changed ilS name to The Mediation Group, Inc., and IlS new address is 717 Foci. Street. Metairie, Louisiana, 70005. Phone (5(4) 836·8400. lIeninger. Burge. Vargo &. Oavb. L.L.P. announces that R. Edwin Lamberth has become a.ssociated with the firm. Renton &. Centeno. L.L.... announces that C. Steven Rail has joined the firm as an associate.

Burdeue & Burdette. P.C. announces thllt James W. Wolley has become a partner in the fi rm and the fi rm name has changed to Burdette. Wooley &. Burdette. P.C. Carr, Alford, Clauun &. McDonald. L.L.C. announces that Martu. E. McDowell, David A. Stnuburg and 11(11), T. A1vea hllve joined the fir m M associates. lIarria &. Uarrls. L.L.P. announces that Pamela R),an IUfbert and StephanIe Zahar 4'nlun have become auoclated with the fi rm. \..In)' U. Simi , Charles A- Graddlck, Charlu II. Dodson, Jr., JOHPh O. Steadman. and Todd S. Strohmeyer announce the formation of Slm•• Cnddlck &. Dodson, P.C. and that James 8. Pittman. Jr. has become usocialed with the firm. Office.s are located at 205 SL Emanuel Street, Fort Conde Village, Mobile, J6602. Phone (334) 690·9300. Piper &. Marbury L.L.I). announce a merger with Rudnick &. Wolfe creating lhe new firm, Piper, Marbury. Rudnick &. Wolfe. Officts art located In Chlcligo. l1altimore, New York, Philadelphia, Tampa, Dallas. Reston and Washington. D.C. Armbruht, Jackson, DeMouy, Cl'(lwe. UQlmfM, & Reeve" a..L.C. announces that I). Vincent Cadd)' has become a member of tht fi rm and that Mal')' Carol Whit!!. Gngol')' P. Bro and Craig O. Martin have ~come associated with the fi rm. Adams &. Reue, L.L.P. announces that T.K. Jackson. III. I)aul O. M)'Tlck, 8nodle), R. Byrne. William T. McCowin, IV. John W. McDonald. Randall Scott If!!tridc, and Kelly Collll'l l Woodford have become a.ssociat(d with the firm. Robert J. Morris and Can)' S. McAnnally announce the formation of

Moma & McAnnally. L.L.C. Offices are located lit 10365 Holtville RQ.'Id, lXalSvilie. 36022. Phone (334) 569-1820. Berkowitz. LeOrovItI. 110m &. Kushner. I'.C. announces that G. Steven Ifel'lry has joined the firm as a member. Andrew R. Chlmble.. , Lee T. Clanton, Wlllillm M. \..Iwrel'lce, D. Keith Arldreu. Michele L. Scarbrough, Anl)' D. S)'lvuter. and Kenneth I~ Weinberg have also joined the firm as associates. Undrord &. Donahue. I'.C. announces that Shane T, Searl and DanielI'. Avery have joined the fi rm as associates. Gilbert & Sackman announces that \..Iurle A. 'I'\'Iklman. J~ Smith and Christopher E. Knfchak have become principals of the firm . McPhllllpl, Shlnbaum &. Gill. L.L.P. announces that Joseph C. Culllot has become associllted with the fi rm. Cabanlll, Johnston. Cardner, Dunw &. O'Neal announces that Anna Funderburk Budmer and William H. Walker have become lI550Ciated y,~th the firm. Lanier. Ford, Sh.\'tr &. PII)'ne announces that David L. Herdan, 1'II),lor P. Brook. and Robert N. Ilaile)" II have become associated with the fi rm lind that Gerald M. Wal.h, J)h.D. has become of counsel to the firm. Robert G. Methvll'l Jr. and Phillip W. McCallum announce the formation of McCallum & Methvin. ".C. Offices are located at 220 1 Arlington Avenue, South, Birmingham. 35205. Phone (205) 939-3006. Farmer. Price, lIomaby &. Wtatherford, L.L.P. announces thllt Joel W. Wu lherford. D. 1Aw1. Te~, EII:r.abeth 8. Glasgow and J. Vincent Edge have become partners in the firm and that Cathey E. Berardi has joined the firm IU an IIssociate. .. .. Rf; .. <,ooo ' U

nan & S mIth announces that Nancy SmIth Pitman and M. Ada m Jonel havc joined the nrm as associates.

Cory. Wat.on. Crowder & DeGari. announces that C. Anthony Gnrfeo, IlIvld Madl.on Tidmore

and Dennis

Runell Weavtr have become partners in the firm. Callb & S lover announces that

Frank I. Browa has become Q! counsel (or the firm. The Southern Law Group. P.C. :.nnounces thaI Cregory L. Clle has Decome ilSsociated with the fi rm.

Officn :.rt located it Suite 200, Frank Nclson Building, 205 N. 20th Street. Birmingham. 35203. Phone (205) 25 1·

6510. CUl lman!). Keentr, Robert. & Klmbl!rley. P.C. announces thllt l'hlUp Earl Milu has joined the firm as a part· ncr lind the firm n;une has been changed to Cusimano. Keener, Robert" KImberley & Miles ".C. Pierce, Ledyard. Latta & Wu den, P.C. announces that Oougl11 L. Andenon, John I'. Kava nagh, Jr., W. Peny lIall and Gabrielle Elaine Reevel have joined the firm.

lIand Arendall. L.L.C. announCe5 tha t Unnnon D. Anthony has become a member of the firm and Ginge r P. Gaddy, W. Cnl, lIamlllon . Aaron L. OeUling. Geoffrey K. Gavin. and Norman M. Stockman have joined the firm as aS5OCiates.

Schmitt, Harper &: Smith announces Ihat Sle\'en F. Schmitt has become of counsel 10 the fi rm . Michael S. IllI'per nnd John G. Smith will conUmle their practice under the name of Harper & Smith, P.C.

John L. Bodle. David M. " atker and Gordon II. WalTEn announce the (or· mation of 8odi~ , ramr & Wa,",n. P.C.

Corham & Waldl'tp . announces that Inac Rollman ha5joined the fi rm ils an associale.

".C.

Ott., Moo~ & Jordan announct$ that Jamu Eric Coale hu become a partner or the firm and that Ihe firm'1 name has been changed 10 Oil., Moon . Jordan & Coale.

8all & Koons nnnounces thaI Ru nell J. Wal,on has joined the firm as a part· neroThe fi rm's nDllle has been changed tl) 8all, Koonl & Walson. Ort'ices have been relocated to 502 E. 2nd Street. Bay Minette, 36507. Phone (334) 937·2303. Wolre, Jonet & Boawell announces has become a partner

that Cary P. Wolfe of the firm.

Kilpl trlck Stockton L.L.I'. announceJ Ihal Michael E. Hollingsworth. II has joined Ihe fi rm as an associate. I'atloll. ~Ihlm, Legge & Cole announces that B. Chadwick Win has become associated with the firm. KerkQwilZ. LeI'kovll, . 180m & Ku. hner. P.C. announces tholt Jllck H. ~ I\:lj joined the firm as a member. V. Leigh Mattu and Laura Schiele Robln w n have also join~ as assodatt$. •

Notice of Election Notice is given herewith pursusnt to the Alsbama State Bar Rules Governing EIBetion of CommissionBrs.

Commissioners Ba r commissioners will be elected by those lawyers with their principal offices in the following circuits: 2nd; 4th; 6th, place no. 2; 9th; 10th. places no. 1, 2,5,8, and 9; 12th; 13th, place no. 2; 15th, place nO. 2; 16th; 20th; 23rd, place no. 2; 24th; 27th; 29th; 38th; and 39th. Additional commissioners will be elected in these circuits for each 300 members of the state bar with princ ipal offices herein. The new commissioner positions will be determined by a census on March 1, 2000 and va ca ncie s certified by the secretary no latar th an March 15,2000. All subseq uent terms will be for three years. Nominations may be made by petition bearing the signatures of five members in good standing with principal offices in the circuit in whic h the election Will be held or by the candidate's written declaration of candidacy. Either must be received by the secretary no later than 5 p.m. on the last Friday in April !April

28, 20001. Ballots will be prep are d and mailed to members betvveen May 1 and May 15, 2000. Ballots must bo voted and return ed by 5 p.m. on the last Friday in May !May 26, 2000) to th e Alabama State Bar. 10 lURCH 2000

11111

LEGISLATIVE WRAP-Up 8y Robert L McCurley. Jr.

Second Special Session 1999 The Second Special Session convened November 15, 1999 and adjourned November 29. There were 140 bills Introduced in this two-week session, with 59 of them being enacted into law. Most of these new acts were local, with only eight bills being of statewide concern to lawyers. Four bills rcplactd the revenue shortage caused b)' Alabama's franchise tax bting declared unconstitutional. These are: Act ••..e00 (HB·3) A proposed constitutional amendment to provide a rate of

6.5 percent on taxable income of corporations for the calendar year 200 land fo r any fiscal year beginning in the calendar year 2001 and each year thereafte r. The special election to vote on the amendment is to be held 011 March 21. 2000. Act ....50 (HB.2) A redistribution of certain taxes from the Special I::ducation Trust Fund to the State General Pund by amending A/a. Code

If 40· 12-227, 40-23-2, 40-23·6 1, 40-23-108. and 40·25·23. This act will become effective January I , 2000. provided the constitutional amendment is approved.

In5t!tutlon cKdsc lax 10 6.5 percent. This will amend Ala. Code 40· 16·4, 40·16·6, 40-18·16, and 40-18·31Ihrough 40- 18-35 and repeals If 40-18-3 1.\, 40- 18-36 and 40·18·38. These laJee! will be distributed to thc State Ceneral Fund. §§

Act 89-UII tHB.1)

The Alabama 8usinc.u Privilege and Corporate Income Shares Ttu of 1999 providu for II lax on the ntt worth of cor· porations, limited liability entities and disregarded entities, which will replace the domestic and foreign franchise tax declared unconstitutional by the United Stain Supreme Court lind provides a new statewide shares lrut, also levied Oil net worth, and repeals the fo rmer Domestic Shares Tax. It provides for an increase in the CQrporate income tax from 5 percent to 6.5 percent, provided the constitutional amendment is approved, It furthe r provides for an increase in the nnanc:ial institution's exclse tax from 6 percent to 6.5 ptrcent and repeals various sections of Title 40. Act " ...3 (HB·?3)

Technical amendments to the electronic voting counting systems law and provides definitions, the system's approval process, and a process for implementation of procedure! for electronic voting by amendin" A/a. C<Jde f§ 17·24·2, 17·24-4. 17·24·5 and 11·24-9.

Act ,'·684 (HB.") A bill 10 revise the corporate income tax law to conform to

(Continued on page 100)

the federal corporate tax system and to increase the financial

Pro Bono Award Nominations The Alabana Stale Bar Committee on Volunteer llIo,vyer PTIll/rams (lC!JOOJiy the Commluco on Access to legal Services). is sookil'{l nomil'lBtions IOf tho Alabama State Bar Pro Booo Award. Nominations forms can be ootaiood by contoctrng linda Lund, dlreClor Volunteer lawyers Program All bl ma Slat. B. r p.e. Box 671 Montgomery, Al36101 (334) 269·1515

Tho Alabama Sune Bar Pro Bono Award recognizos tho outstandrng pro bono of/orU 01 anO/nays. law frrms and low studen'''s In tho Sialo. Tho award cnloua Includes but IS not limited 10 too following: the loml number of pro bonO hOurs or complexity 0/ cases rumd ed. impact of Ihe pro bono work and benofrt for Ille poor, partlculer expenSIl provided

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anorneys lor pro bono reprcsontallon, and provon commitment to del wry of quality logal services to the poor and to prOViding OCIual acton to lelia I sorvices Nomlnatlonl mUlt be pOl tmarked bV Mav 15, 2000 end include a complatad Alabama Stato Oar Pro Dono Awar" Program nomination rorm to be con,idered bV the commitl...

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Amends Alabama election law § 17· 22A·7 to provide that during the pertod of 12 months berOrt: an t lection in which the person intends to be a candl· dMe, the prohibition cOflcerning contri· bulion~ shall not apply to a loan {rom a candIdate to his or her own ]}()litical campaign committee,

The 2000 Regular Session of the Legislature began ~'ebruary 1, 2000 and can continue until May 15, 2000. ror information about bills and the current legislative term, you may access this inform~tion at wU!w.legis!alllrc.slale.al.us. For information about the Institute or any of its projects, contact Bob McCurley, director. Alah.·UTh1 Law lrutitut~, P.O. Box 86 1425, 1U:sca10QS.'l35486·0013; fax (205) 348-84 11; phone (205) 348·741 1; or Ulrough the Institute's home page at www.law.ua.edulali. •

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BAR BRIEFS • The Nalionll Boord o( Trial Advocacy announces that John A. lentine or the Birmingham fi rm of Corham &:

Waldrep has achieved Boord Certification as II. criminal trial advocate through NOTA. NBTA il dedicated to the identiflca· tion of attorneys with a history of enhanced skill in trial practice and ensures that each NOTA boord·certified attorney can substantiate his or her specialty designation with true quality. • The L.'\wrence County Bar AMocllltion recently elected new omeen. Cho~en were John Eric Bumum, Moulton, pres· ident; SClln Da.1e Masterson, Moul ton, vice-president: and

RIchard Derek Proctor, Moulton. secretary-treasurer. • Anthony A. Jouph , a partner wlth the Birmingham firm

of Johnston BaIlon Proctor & Powell LLI~ was recenlly elect· ed to sel'Vc on the Council of the American Bar Association's Criminal Justice Section. Joseph also serves on the Executive Committee oftne Birmingham Bar Association and is chair of tne White Coliar Crime Sutx:ommitlce of the Commercial &: Banking Litigalion CommiUee of the Litigation Section of the American Bar Association. • Thomu Jay Sldnner. IV of the Birmingham (jrm of Lloyd, Schreiber & Cray, !'.C. is cumntJy serving as president of the Alabama Real Estate Lawyers Assotiation, Inc:. • Judith S. Crittenden of Crittenden-Martin AUorntySlll LtIw was recently named Lawyer of the Vear and her secretary, Debbie I...lwrente. WlU named Member of the Vear by BLSA, a professional organization whose members work in law-related offices and agencies, Crittenden is a founding partner of Crittenden-Martin of Birmingham. Lawrence has worked for Crittenden-"1artin si nce 1994. She earned her Profe»ional Legal Secretary certification in 1995 and now teaches sections of certifiCllion workshops.

CLE Opportunities Tho Alabarra Mendatory elECommission continually evaluales and epproves in-slale. as well as natioowido, proglilms which are mai'llairlltd in 8 compuler databaso. All are idenlified by sponsor. l0(.8tlon. deto end specialty area, For II complete listing 01currml ClE opportunities or II calendar, COI1t8Cllhe MClE Commi!Sion 01l1CB at (334) 2S9-1515. extension 117, 156 01 158, 01 you may view 8 complete listing of current progr&m$ at me sUlle bar'S Web she, WWW,aIab&OIp.

• The Civil Pnrcti« Fedenl Court Commlttte of the Mobile Bar Anoclatlon recently published a practitioner's guide entitled Introdllcliollto Civil Discooerll Practice in the Sou/hen' District of AI/ltHl/na. The committee worked dosely with Ihe judges of the Southern I)lstrlct In drafti ng Ihis guide to local di5covery practice and thank the court for iu participation. especially Maglatn le Judge William E. Canady, who served as chairman of the committee. Copies 0( the guide are being attached to the court's local rules and may be obtained, free of char(te. from the clerk's o(fice of the Southern District. • The Eleyenth Circuit IIIl torical Society. a private, nonprofit organization incorporated in Ccorgia in 1983, invites judicial conference members to Join the Society. The eleventh Circuit was the first fede ralllppeals court in the country 10 create an historical soclely dedicate~ to preserving chambers papers, portraits and personal memorabilia of its judges; over 650 federal and state court judges, attorneys. law firms and legal history scholars are members. To increase the public's awareness 0( the elevtnth Circuit federal court.s· role in American histol')', three book$ were commissioned by the Society. From t.ocol Courts to Nalional 'J}ibunals: The f'L'lkra1 District Courts ofFforida. 182I-J99{); United Siolts COllrt ofAppeals for the ""'ewnth Circuit: The Pirsl Decode, 1981-199/: and Ikmoc1'Uev and Judidallmkpenc/l!na!: A History of the Fetkrul Courts ofAlabama. I820-J994. The Society Iw a pemlllnent office in the Elbart Parr Thttle United Sl.:!.tes Court 0( Appeals Building in Atlanu. Officers include AJabarlkl attorneys Thomu S. Lawton, Jr., president, and Ben 11_ lIarm, Jr_. vice-president. Trustees include Julian O. Uutkr. Waltu R, Ryan, AJ, Coleman. Camille Wright Cook, N. Lee Cooper, Rlchant H. CIII, Ralph N. Hobbs, Alex W, Newton, and James L. North, all members 01 the AJab.1ma St.'Ite llar. For more information, contact lh ~ Society nl (404) 3356395 or at P.O. Box 1556. Atlanla 30301. • Forru l S. Latta, of the Mobile fi rm of Pierce, Ledyard. Latta & Wasden. P.C .. is the latest recipient of the I)efense Research Institute's C. Duffield Smith award. The ])R1 , the nation's largest association of civil litigation defense lawyers, pre5ents the award annually to the aulhor of the most outstanding article published by the Institute. • The Mobile Bar Foundation, the charitable ann 0( the Mobile Dar Association. provided over 530.000 to Mobile arta charitable organizations. Iknefidaries of the 1999 grants, which included The Shoulder. Ronald McDonald I-louse. Penelope House and the Mobile Oar Association Pro Bono Program .....oeTe recogni1.td at the association's luncheon JanuaT)' 20. Since illl establishment in 1995, the Foundation Iw made gins to community organizations in excess of SI5O.000. •

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B UILDING ALABAMA'S C OURTHOUSES By Samuel A.. Humore, Jr.

Fayotte County Rovlsltod

F.W'ette County Established: 1824

he Fayette Counl)' Courthouse was first featured in the January 1992 iuue of The Nabamrl [.owyer. This courthouse has undergone a recent renovation and deserves an update. The building was originally constructed in 1911 al a cosl of S59,000, The ren-

ovation. corYlplded in 1999, covered two

The following continues a history of Alabama's county CQurlhouses-

their origins and some of the IX!ople who contributed to their growth. If YOII houe any photographs of (.'(Ir("

or present courthouses, please forw(mllhem to: Samuel A. Rumore, Jr., Mig/ionico & Rumore, j230 Brown Marx ?bILler, 8i,.,ningllam, Alabama 35203.

phases and cost approximately two mi t· lion dollars. PhMc one was the new roof that cost over $350.000. Ph0\5c two was the interior renovation that had a price t.'Ig of approximatel)' S1.7 million. A large portion o( the (unds for the project came from a one mill.on dollar glR (rom local philanthropist &:irl McDonald. The modernization work included new lighting, new ceilings. new wiring, and the renov:!tion of walls. noors and cabinetry. The courthouse now hM cen· tral heat and air for the first time. Formerly. it had more lhlln 30 window arr conditioning uni tl. A new sprinkler

and alarm s),stem was Installed fo r fire protection. Awheelchair ramp and ele· vator were added (or compliance with lhe Americans With Disabilities Act. The third·floor IIttlCwas totally renovated to now include 8 new courtroom and 2.000 square feet of additional office space. The two'$tory main courtroom was completely renovated. The ceiling was raised and the balcon)' area opened up. Much of the original wood, marble and preSlied copper ceiling were retained. Exterior lllndscaping will complete the Fayette County Courthouu project. The cont ractor (or the f'll.yette County Courthouse renovation was H &: N Construction. Inc. The architectural firm was TurnerBalSon, with Jamie Collins as project coordinator. A rededi· cation and public barbecue are planned (or the spring 0(lh15 year. according to Probate Judge Will iam Oswalt. •

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B OOK REVIEWS

The Soulbane Stratagem A novel by Norman Jetmundse n, Jr. • Hardcover. John Hun t Publis hi ng . October 1999 RelJiewed by Charles A. Stewart, 11/

he Soutbun. StNllu~m:

You won', lind it in the conve· nience store down

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novel is an tKciting discovery. The book is a. sequel to C. S. Lewis's book, The

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Norman was /In undergraduate student. too. 00 not be fooled. This is not Ihe typical lawyer's mystery novel. The site of the n(Wi!J Is Odord, t;ngland, The main ch"rader is an American student, Cad~ Bry50n, who is studying 011 f.lagdalen College. \Vhlle studying in the library late one snowy winter's solstice night, Cade discovers some strange letters hidden in the book5helvu, The$e letters were cxch:mgcd bct'ol'cen II junior devil, Soulb/me, and his fiendish superior, Foulheart. They contain a riddle about the location of some relmrts to be prepared by Soulbane, Cade Bryson goes in search of the reports, He receives help from II fellow student, I~achad, and Mr. I1rooke, the vicar of a 5mll!! country church. The story Is exciting, with some unexpected twists ilnd t1.lrns, The message is strong and very timely, Ch.rt., A. " , w. rt, III

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!.ike C. S. Lewis's characters. Screwtape and Wormwood, these evil characters are plellsed with the cumnt state of the world and the church. In discuuing the slate of the mQt!em world, Soulbane add ruses the numerous victories that the devil hM managed to havt on Earth, Of course, from the devil's perspective, everythinJt is reversed (i.e .. evil Is good, down is up. he has no compassion). Among those victories are the inability of man to tell riJthl from wrong. the nuclear dutruction of the family. the effect of technology on our livts, ilnd the overall decay of the moral ilnd religious fiber of our society. Soulbane even says the following about lawyers: "115 II l)art of our research. we attempted to inurview that spe. cilll species of vermin they call lawyers, l13drtCU knows, there are enough of them down herel (f:.'ven our Royal l-lindne55 can't stand to be around Ihem for very long.) It is clcar Ih!!t the goal of lawyers in thei r trials is not justice, but winning. We tried to get a groull of them to expl.. in to us why there is so much liti· gillion in ....'estcrn society. lind why society i~ so distrustful of tJ1C legal system. so that we could clilrify the 1Th1tler for this Iteparl, but allihey did was argue, and we never Jtot a Itrnightanswcr. l..IIter, $everal even tried to send us a bl1l for their limel~ Norman gradu.lted from Se.....anu with II degree in English literature. l ie attended the Univttsity of Alab;una School of La...... Thereafter, he clerked for Judge Sam Pointer in the Northem District 01 Alabama. He then studied at Magdalen ColleQi!. Oxford, where he recciwd an fol.Litt. In Law. A ROUl!,), International Scholarship is whllt land(.'(i Norman in Oxford. It was while at Oxford lhat he kindled his Interest in C. S, l .ewi~. Lewis taught at Magdalen College, where he wrote The Scri!wltqXl iA!1I1!t'S. Norman conceived the idea {or the book while crossing lfigh Street in Oxford one day. 1'llIving tossed around the idea of the book for nearly ten years. Norman started pUlling

down his lhouQ:ht$ in March I!j{J4, two months after his wife, Ketti, Q:ave birth to triplet OOY5, Jonalhan, Taylor and Nelson, The birth of the triplets is parlly responsible (or the book's having taken so long to write, as is the fact that he main· tained his full ·tlm~ law practice at Dradlcy Arant noSt' & White !.!.P. After a couple of ye.'lrs, he began to think thllt per· haps this could turn into a book. and Norman then engaged in a self-study program to learn how to write fiction. Nonnan is a member of the litigation practice group with Bradley Aranl. and also works in the area of alternative dispute resolulion, serving as a mediator and arbitrator in vari0U5 casu. The finn has been very supportive of the publication of his novel. Also, the nev. Dr. Paul Zahl, an EpiSCOPal pritst, lind the Rev. Fred Barbee. editor of 1'Iu! Anglicu1l Digest. provided him with guidance. advice and support. In addition, Norman received w ismnce from Robert Fraley, a former UnivtTilty of A1llbama

quarterback and sports attorney, who was Norman's (riend in law school. ~'raley's firm. Leader Enterprises, helped Nom'lan find a British publisher in John Hunt Publishing Ud. The tragic death of Robert Fraley with 1I0lfer Payne Stewart occurred immediately before Norm.ln left for Oxford to launch the new book. Norman, Kclli. his brother and 5l'\ICral friends. includinll his rartner, Joe Mays, and Joe's wife, June. were prestnt for tM offioallaunch of Norman's book lit Magdalen Col1e~ on October 29. 1999. Norman's fiTit novel I. a real success, and I highly rteom· mend it to )IOu. Your local bookstore can order The Soulbane Stratagem (rom the United Siaies distributor, f.10rehouse Publishing, in Harrisburg, Pennsylvania. (It can also be ordered oyer the Internet (rom Barnes & Noble, at UlUlw.bar· ,,(!Sondl/able.com, and from Itllt!w.omozo".co.uk.) Based upon my reading of this book, I certainly hope NOrman will write lInothcr onel •

Business and Commercial Litigation in Federal Courts (ABA and West Group 1998, $480) Reviewed by Edgar C. Gentle, 11/ his six·\I{Ilume work was prepMcd jointly by the American Bar Association and West Croup. The wi· urnes were authored by distinguished fede ral judg~s and litigaton practicing in federal courU, including Birmingham's own Lee Cooper, who co-authored the chllptet on the Selection of Expert Witnesses. The work is 6.700 pages long, containing 349 forms and 319 jury charges in print and on disk. It boastJ over 17,000 cited cases and thousands of cited statutes. The fiTit h.,l( o( the set is devoted to the simple and sophisticated building blocks of general commcrciallitillation. There are scholarlYchapters dealing in an ac.1demic m'lnner with hotly contested threshold issues in federal cues. such as subject matter and personal juri~iction and venue. These portions of the work provide a welcomed update to Wright & Miflt'Y's Cklssic 1'rt!atisl!. Even Ihest portions of the series are practical, however. in providing handy checkHsls to comply with or challenge the leg.ll strictures Involved, as well as (arms, for cXllmp[c, to accept service or transfe r venue. Other chapters on the (undamentals of litigation treat law as art and not science, In, for example, addreSSing how to engage and use Imeslillulors to work up a case, debating whether to haye a factually deyeloped or a brief and general complaint or answer. how!o select a jury, present or cross

-ov., C. O_n"., III

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witneues, and open and close the cast. The voice of experi· ence is loud and clear in many ofthe practical forms proyid· ed. such as written investigator guidelines design€d to r€duce exposure resulting from aggressive discoyery by non·lawyers. Unlike many trial advocacy works. this series Iriu to take an even·handed approach to the topics, not faw ring either side of the bar. Thus, the treatment of the expert testimony turmoil resultinll (rom Daubtrl is addressed objectively, from the per· spec!ivu of both admitting and excluding expert evidence. In IIddition to the marc rudimentary chapten applying tit· menl$ encountered In every litigated commercial case, the se ries also provides chapters with les5er known factOTi affect· ing litiglltion. such aJ the Dllnkruptcy Code and multi·district litigation options. The building block half of the set proceeds chronologically through a lawsuit, discuMing procedure. legal principles. practical advice and strategy specifically applying to commerciallilig.1tion for each building block. Helpful narrative discussion, practice pointers and checklists are proYided on liability, defenses and damages. as well as case summaries, forms and Jury charges. The second half of the work outlines the practice procedure and strategy In the commercial litigation of specific subjet;:t rlUIt· ten. Including tradlUon.a1 areas such as contracts, warranties, the sale of goods, employment discrimination. and competiLive torts, as well aJ mort specialized or undeveloped fields, such as antitrust franchising, enel'ln' and environmental clainu. The work is a valuable guide for tyro and expert litigator alike. It provides necessary ammunition used in every case as well a5 insightJ into more specialized, but increasingly papular. ayenUes of commercial litigation. To order, call 1-800·328·9352. • ... Alle H '0001 10 1

Stress Management for Lawyers By Jeanne Marie Leslie, director, Alabama lAwyer Assistance Program

tress r.lana"emcnt for Lawyers,"

a four-hour continuing legal educAtion progrllM, was offered

In Oecember at the Alabama Slate Bar In Montgomery, Aminm EIII.'()rk, Ph,D"

director of lhe Law.Psychology GradUZlte Training I~ognm at I'ennsylvania's Widener Univ;:rsii),. caPtivated lawyers from around the state with his fast.paced presentation. Along with his work III Widener University, Dr. Elwork has iI pri· vate psychotoll)' practice. where he counsels firms IlIld Individullllawytr$ in ffi,m aging stress, !-It has literally written the book on the topic, entitled Stress /oIollogcm01t for IAWJIl!n.

Dr. Elwork d.scussed many ways to increase both personal and professionlll !latisf,u;:tion in the practice of law. In particular, he described how poor stress nlan:..gemenl skills can keep lawyers from experiencing their (ull potential. Developing these skills can help lawyers experience job satisfaction, achieve bal· ance between CIIrecr and ~rsonalli(c, improve relatiooshlps with family, a5$O' ciates and clients, and even Incre,ue productivity, According 10 many studies, the prac· tice of law is one of the most stressful professions. There are higher incidences of d~pres$ion, 5lJbslance abuse and sui· cide amongla.,.;yers than any other professlon:..lllroup , A$ a result of lhe stress lawyen experience, there is a risinll rate of job dls$B.tisf:..ction, and increasing numbers of III~er$ IIrc dropping out and switching to new careers. Or. Elwork dd'ines a successfullllwyer a5 one who finds happiness lind does not ex~rience chronic distress in the practice, All lawyers will experience st ress from time to time, but chronic distress can be avoided with appropriate stress management techniq(les. Or, E:lwork outlined many methods to help stay calm and confident duriniJ st ressful times and to eliminate negative th ink· ing habits. He ~esc r ibed ways to under-

I),. Am/rum h'/1lXri (ritJI.tJ tJiKuI,m Iiif/IfIfIII s(rm·,w/ud'w1edul/Ques wilh AJAf' Dlffdtlf' kat_ MarN LaJIlInId MOrtI{lOr'fWf¥ .lIonwv Corqlll1U"/oomfl,

stand stress responses and replace maladaptive reactions with beneficial ones. All participanl$ received a copy of Or, E:lwork's book, and the re!pOnH to the presentation and written materials was overwhelmingly positive, Unfortunately, many who wanted to attend were turned down because of limited space. however, ~nolhH workshop is under consideration. If you are interfsted In being ptllctd on lhl! malllngll.t for II

repeat (lrfsentlltion. please call Sandn

Clements althe Alabaml Siale Bar, (334) 269- 15 15. IXlenllon 302, This program was sponsored by the Alabama Siale Bar's I.aw Office Management Assistance Program, lhe Alllbama Lawyer A$si5la n ~e Program, lhe Volunteer Lawyers Program and the Lawyer IMeml Service, Bnd was made possible through a generous gtant from Luis Publishing. •

Information is power. And when you need information on the legal profession in Alabama, there is no better place to find it than through the publications of the Alabama State Bar.

Alabama attorneys depend on The Alabama Lav.rer magazine for substantive legal articles and updates on the legal community. The ADDENDUM newsletter provides practical and timely information on everything from law office management to local bar news. Lawyers and law office staff members count on a copy of the ASB Ber Directory to enable them to have quick access to colleagues and law firms at their fingertips. Clients receive important and helpful information from law offices that make the Alabama State Bar's legal brochures available to them . The publications of the Alabama State Bar - an information resource that Alabama lawyers can count on evety day.

Keeping Alabama LawyeJlln The Know. ~

AlABAMA STATE BAR To Serve the Profession

MAIlCH 2000 I 100

110

...U.eM:rooo

Alabama's Business Taxes: A Change In Direction

n Harch 23, 1999. the United States Supreme Court dccl3red that Alabama's franchise tax $)'$ '

tern ViOl/lied the dorl1\ln( commerce

ctause of lhe Unil'ed Stales Constitution. See South (Arllra/Bell Telephone CO. II. Alabama, 119 S. Ct. 1180, 1185·86 (1999). As a result, Alabama w;u can· fronted with the potential annual rev· enue 10$s of S150 million. Following a histork sh:·day special session of the Allibamll Leghlature, on November 29, 1999, Governor I)on

Siegelman signed Inlo law the Alabama l3usineu Privilege and Corporate Shares Tax Act of 1999 (lhe Act). The Act pro-

vides (or the implementation of II busi· ness privilege, or franchise, tax as wtll as a shares tu. The shares tax would be repealed if II constit\Jtional amendment is approved to increase the corporate income tax rtlte. The rtferendum on the constitutional amendment will be held on t<larch 21. 2000. The (ollowing is a summary of the Act and the related tax legislation that was enacted.'

Business Privilege (Franchise) Tax Appllc.bllity

The business privilege tax applies to all corporations and limited liability entities (LLEs) which do business in Alabama or are organized under the laws of Alab,1ma. It applies beginning January I, 2000. Tax a •••

The lax base Is the net worth of the taxpayer. • For a corporation. net worth equals the sum of: 1. OulStanding capital stock 2. Paid-in capital, without reduction for Ireuu!')' stock 3. Retained earnings. but not Ius thM 2:ero • For an LI.E, net worth eqUOlls tilt sum, but not less than uro. or the ()Wr\t1'S' capital accounU. Limited liability companies wed as partnerships, registered ""R CM i'OOO' '"

ALABAMA LAWVER

Assistance

Program Are you watching someone you care about self-destructing

because of alcohol Or drugs? Are they teUing you they

limited liability partnerships and limit· ed partnerships art examples of LLEs subject to lhe privilege tax. • For a disregarded entity such as a sin· gle·member LLC or qualified sub· chapter S subsidiary, the net worth of the disregarded entity is included in the net worth of its owner. However, if the owner of the disregarded entity is an individual. general plIrtnenhip or other entity Ilot subject to the privilege tax, then the disregarded elltity is subject to tax. tlIId net worth is equ1ilto its assets minus liabilities.

have it under control ?

They don't. Are they te lling you they can handle it?

They can't. Maybe they're telling you it's none of your business.

It is. People entrenched in alcohol or drug dependencies can't see what it is doing to their lives.

You can. Oon'l be part of their delusion .

Be part of the solution. For every one person with alcoholism. elleast live ot10r lives are n&galivaly affected by the pmbillm drinking. Thl!

Aillbamalewyer Assistance Program is available to help members of the legal profession who suffer from alcohol or drug dopondencills. Information lind BssistontB is also IIveillible lor the spouses. family members and office staff of such rrembefs. ALAP is com· mined to deve oping a greater aware· ness end understaoding of this illness within the leg.1 profession. If you or someone you know needs help call Jeanne Marie Leslie (ALAP directorl at 1334) 834·7576 (8 con fidential direct linelor 24·hoUi page al (334) 395·0807. All calls are crotidenllol,

112

M ~IlC H :lOOO

Addition. to Net Worth

• Related-party debt In excess or net worth • Excess compensation: I. COlllpellSl1tion III exces~ of $500.000 paid to a 5 percent or more owner of a C corporlltion 2. COlllpellSl1tioll or distributions in excess of $SOO,[}OO paid to a 5 per· cent or more owner of an S corpo· ration 3. Compensation or distributions in excess of $SOO,[}OO paid to an owner of an I.I.E or disreg.lyded entity 4. Aggregation rules are prOVided for payments of compensation and/or distributions to related parties, unless the individual recipient is over 21 years of age and materially participates Deductions from Adjusted Net Worth

• Equity investmenL~ in other taxpayers doing bu~ineS$ in Alabama • Purchased goodwill ;lIld core deposit int.lngibles • The unamortized ba lance of any amount a Llxpayer elected. pursu,ml to FASB p rOI\OUnl~mcnts, to :u'I"Ior\ize rather than expense • Additional deductions available only to finan cial instltu\iI;lIls: I. Investmen15 in any other corporation or LLE not doing business In AIII~ma if the tlUqlayer owns more than 50 percent. unless the other corporation or LLE is dormanl 2. The alllour)t of net worth exceed· lng 6 percent of assets

Apportionment of Net Worth

An entity's adjusted net worth Is apportioned to Alabama using the enti· ty's Alabama income or excise tax apportionment factors , except that an insurance company apportions net worth on the basl$ of Ihe ralio of its Alabama premium income 10 ils nationwide tot,,1 direct pre mium ~. Deduction. from Apportioned Net Worth

• Net investments in Alabama securities issued before January L 2000 • Net Investments in Alabama pollution control devices and facili ties • Net investments by a ctrtified or licensed lIir carrier wi1l1a hub opera· tion • Certain investments in manufactur· ing fa.cililies meeting minimum investment and employment criteria • Certain re$(!MS. funds 01' accounts required for plnnt or site reclnmntion, storage, decontamination or retirement • The Dock value of any low-income hou ~jng projects • for an S corporation, 3[) percent of its taxable income • For lin LLE, 30 percent of its taxa.ble income (only If the shares tax is not in effect) TIl" R.te.

Thx rates are graduated and based on feder/ll taxa.ble income apportioned to Alabama. PrIor Va ar', TalClllbla Incoma

less than $1 $1 to $200,000 $200,000 to 5500,000 $500.000 to $2,500,000 $2,500,000 and over

Tax Rata

$0.25 per $1,000 $1 .00 per $1,000

$1 .25 per $.!. ooo $1.50 per $1,000 S1.75per$I.000

T.x C.ps The minimum amounl of tax is $100, The 1'I"IllXimum amount fo r most taxpayers IS $15.250 for the year 2000 and $15.000 fo r all years lhereafier. • For utilities wilh an obligation to serve the public. insurance companies s\lbject 10 premium taXe$, and finan cial institutions subject lo the financial institution exci$e tax. the I'I"IllXimum IImount of tax is S3 million.

• For real estate investment trusts (REITs), lhe maximum amount of tax is $500,000, • If a constitutional amendment is passed to raist lhe corporate income tax to 6,5 percent, the tax cap fo r uUl· ities with an obligation 10 serve Ihe general public and RE ITS will be decreased to $15,000. Financial instl· tutions and insurance companies will remllin subject to a ffi<u:imum tax of $3 million. hmlly Limited LI.blllty Entitle. The tax on a qualified family limited lillbility entity is $500 if it mllkt$ an annulIl election. A limited liability entity can elect to fall within this provision 1(: • It is at lellst 80 percent owned by an individual and his family, and • At le:ut 90 percent of the as5elJ o( the entity are used in a passive activity, which includes certain rental activities. Te.-Ex.mpt Entltl •• Organizations described in 26 U.S.C. f SO l (a) are exempt (rom the privilegt tax. Time of P.vm.nt The t;lIt 1$ calculated January 1 of each year and is due March 15. Extensions will be allowed for a period not to exceed Sbl months. A new entity must calculate the tllX on the day it is organized or first does business in the stille, must pay the tax two and a half months tater. and is allowed to prorate the lax based on the number of days it does busineu during the short taxable year. Con.olld.ted Reporting Not allowed

Shares Tax

2000. The shares tax will be repealed for all taxable years beginninganer December 31. 2001 if a constitutional amendment i$ pa$$ed on March 21. 2000 to raise the corporate income tax to 6.5 percent. TIl.

a •••

The lax base is the net worth of the taxpayer. The net worth of a taxpayer Is computed in the same manner as the privilege tax (withom additions). The tax base is apportioned to Alabama in the SlIme manner as Ihe privilege tax. Deduction. from Net Worth • Book value of goods. wares and merchandise held for s~le • Book value of the equity investment In other cotpOl'atiQnS doing business In Alabama • Book value of federal obligations. weighted in certain circumstances • The unamortized bol lance of IIny amount a taxpayer elected. pursuant to ~'AS B pronouncfmentJ. to amortize rather than expense • For an S corporation, the Itreater of 30 percent of itJ tall'lble income or its lax liabllily if II were treated as a C corporation • Net value of IDB·finlinced nssets obtained prior to May 21. 1992, limit· cd to $200.000 annually Apportionment of Net Worth Acorporation's adjusted net worth is apportioned to Alabanm using the corporation's Alabama income tax apportionment factors.

• Fair market. or current use value (if applicable). of the real and personal properly as last determined by the county assessing official on which the taxpayer is subject to property tax T•• R.te. The tax rate is $5.30 per $1.000. If a constitutional amendment raising the corporille income tllll rate to 6.5 percent is passed on March 21. 2000, the shares tax rate will decrease to $1.33 per $1.000 with a mrudmum tax of $125,000 for taxable years beginning after December 31. 2000. and the shares tax will be repealed for all taxable )'tars beginning aner December 31. 200 1. T•• C.p. There is no minimum amount of tax. The maxjml,lm amollnt of lax is

1500,000. Time of Pevment The tax Is calculated January I of each ~ar and is due March 15. Extensions will be allowed for a period not to ttceed six months. A new entil), must calculate the tax on the day it is or(l1nized or first does busineS5 in the state, musl pay the lax two and a half months later. and is allowed to prorAte the tax based on the number of days it does business during the $hort tllllilble year. Con.olldet.d Reporting Not allowed

Deduction. from Apportioned N.t Worth • Net investments in Alab"ma securities issued before January 1.2000 • Book value of Alabama poilu· tion control device~ and fadli · ties

Appllc.bliity The shares lax applies to all corpora· tions which do business in Alabama or are organized under the laws of Alabama other than utilities with an obligation to seM the public. inS\lrance companies. nnanclal i n~ti luti on5. and Rfo; l ~. It applies heginning January 1.

• Certain invutmenls in manufac· turing facilities muting mini· mum hwestmtnt and employment criteria • Certain reserves. funds or accounls required for ptalll or site reclama· tion. storage. decontamination or retirement "'AIICI! :1000 I

Financial Institution Tax (FIET) Appllc.bllltv

The Act specirklilly utends the F I ~:T to out-or·state credit card companies. Consequently, Alabama is one of II minority of states attempting to tax this activity, However, it is unknown whether these attempts will be $uccenful or whether the PI8T's reach may now be brO<lder Ihan ils slaled extent.

Apportionment Financial institutions allocate and

apportion net income to Alabama as provided in future department regulalions which shall be substantially the same 115 the allocation and apportionment formula (or financial institutions

recommended by the t>1ullistate Thx Commission. Until regulations arc adopted, the apportionment formula for financia l institutions recommended by the Mullistale Th.~ Commi5!lion should be used, TIIx R.t ••

The w rate renUlins 6 percent, However, if a constitutional amendment is passed on March 21, 2000 to raise the corporate income tax rate to 6.5 percent, the ~'mT t/l.~ rate will also be raised to 6.5 percent fo r all taxable years bellinning after December 31, 2000.

against the insurance premium tax to 60 percent from 100 percent. With the repeal of the securities registration lax. the deduction (or security registration taxes paid has been removed.

Credit. The prlvilege tax is not creditable aglllnsilhe FIET,

Corporate Income

Insurance Premium Tax (IPr) The Act reduces the amount of privilege tax which is allowed as a credit

Tax On March 21, 2000, a constitutional rtfertndum will be htld to consider whether the constitution should be changed to allow the corporate income tax rate to be increwd to 6.5 percent. The following describes the corporate income tax for all tauble yean beginning on or aller January I. 2001 if 5uch amendment pams.

Appllc.blllty The corporate income tax will apply to all corporations and to tax-exempt organb.atiolls (described in 26 U.S.C. § 501(c)) with unrelated business taxable income. The lax will not apply to: • Farmers and cerlAin mut\UI\ companies • AssociMion~ (or the marketing of products grown by farmers

• Pederal land blanks and national farm loan :!."ociation! • Building and 10111'1 a5socillions • Counties, municipalities and inst rumentalities of the state or its subdivisions • National banks and corporations engaged in banking, jf subject to the

m:T

• Insurance companies, if subject to the 11"1' TIl.

a •••

The tl\)( base will be fede ral taxable income without fedtral net operating loue5, Addition. to TIl.

a •••

• Slate and local income tllXt~ • Interest earned on $tate and local bonds • Refunds of federal income taxes • I)ividends received from II corporation less thl," 20 !krcent owned by the tallipayer D.ductlon. from Adju. t.d TIl.

a •••

State and local income II\)( re(und~ Federal income tllJ(es p.1id or accrued Interest earned on federal bonds Interest earned on Alabama state and local bonds I( Included In fed eral gross income • Amounts paid to the State Industrial Development Authority to Induce an approved company to undertake a major project • Expenses otherwise deductible that wtre not deducted (or federal purpos· es as a result oi an election to claim a credit for such ellipenses • Dividend Income received from cer· tain foreign corpor.. Uons

• • • •

Apportlonm.nt of Adju.t.d TIl. a •••

The tax basc, plus additions and less deductions, will bt apportioned to Alabama using triditional apportion· ment method5.

T•• R.t•• The tax rate will be 6.5 percent of the apportioned tax base.

TIl. Credit.

The tllJ( Incentivt5 provided (or In §§ 41 . 10-44,8(a)( I) and 41 · 10-44.9, Code of Alabama of 1975 , will be allowtd aJ credits. Tim. of P.ym.nt

There is no change (rom current law, T:uces are due on the 15th day of the third month followin" the close of the taxable year, although estimated tax payments may, as before, be required, Con.olld.t.d R.portlng

There is no change from currenllaw, An affl!iated group of corporations (defined in 26 u,S,C. § 15M a",lnol including any corporations subject to the IPT or FIET) which files a federal consolidated return may elect to file an Alabama consolid;l\cd return (or the same period.

Old Provisions Repealed The Act repeals the following provi· sions; • ~"orcign admissions tax • Requirement of corporate permits • Domestic shares tax • Securities registration lax • Foreign and domestic fran chise tllJ( (repealed prospectively only)

Constitutional Referendum On March 21, 2000, a constitutionlll referendum will be held to consider whether the constitution should be changed to allow the corporate Income tax rate to be increased to 6.5 percen!.

r-~~~-----------' WIIII.m D. Li neberry WrIIiIPI 0 UrIIobefry II .., _ " ' ' ' In ....

6wf!'ll\(lhlm o/II(;e 01 6eich & BrI'ICII*T' UP HI ~ I B.A. !10m v~ ~ In 1lIII0.• J ,O 111)ITI tn9 Vr'oIYt<Jif\o' 01 AlabamJ, Sehool oIlIw In 1992, and lin LL.M In 1I)[IIlan!rom New YotlI UnlvtftHy In 1993

If such an amendment passu, the fol· lowing will occur: • For utilities with an obligation 10 serve Ihe general public and (or ItEITS, the privilege laJ( caps of $3 million and 5500,000, respectively, will be decreMed to $15,000, Financial institutions and iruuranct companies will remain subject to a malliimum tax of S3 million, • The shares II\)( rale will be changed to $1,33 per $1 .000 with a malliimum tax of S125.000 (or taxable years begin. ning after December 31. 2000, • The shares talli will be repealed for all talliable years beginning after Dtcember 31, 2001. • The ~"IET taJ( rate will be increased from 6 percent to 6,5 percent fo r all tllXable years beginning after December 31, 2000, • The Alabama corporate income laJC will generally ~piggyback~ the fed eral tax rules ""d federal tuable Income will be apportioned 10 Alabama and will be subject to Alabama·related adjustments. • A corporate income {lUI rate of 6.5 percent wm be effective (or tMable years beginning a(ter Oecember 31,

2000. Still outstanding is the remedy phase of the Sourh Cerllrallklf litigation. The past discrimination against foreign cor· porations identified In Soulh Getl/ro/ Bef/ could be remedied by refunding to foreign corporations the laxt$ they overp;lid or. as the State has suggested, by requiring domestic corporations to pay some of the tllXes they underpaid in the past. • Endnot. 1.

AoI~·~. ThII •• \IcIII wu ~nlod prlot 10 the ~ InlIOIIr.H:Ilon oil IIC:I'Irio:aI 0011.:110",

bIIln IN 2000 ........ MMIoII tJ IN IegiIIIlu... ~, ~ oor.eaIionf mtdt b'/' IN !f9IJllllu". ~ any, ••• I'lOl IGcIr_.

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What Every Divorce Attorney Should Know About Taxes By Michael A, Kirtland espite the hesitancy of organized bllrs throughout Ihe United Siaies to recognize it, law hu become iI complex subject in which most lawyel'$ end up "specializing" in some particular area to the exclusion of most. or even 1111, other areas of practice. This concentration of an attorney', practice does not, however, eliminate the need for the attorney to remain aware of other practice areas lh<l\ have a direct impact on an attorney'. primary area of concentration. One such IIrca In which attorneys often concentrate their prllclice is divorce law, Another is tax law. While many view these two areas as far di~rgent, federal and slale tax laws inherently affect vi rtually every divorce decree. seulement agreement or le"al separation. Far too often, though, the domestic relations a.ttorney simply tells his or her client. ~ I don't do taxu. You'll havt to consult a tax altorney or accounl,mt." Perhap~ even more commonly, the domestic relations attorney Simply says nothing to the client about the tax implications of the divorce. While Ihe providing of specific tax advice by a.n altorney who doesn't prilctice in this area is not advisable, having some bilSlc tax knowledge concerning the tax implications of divorce will permit domestic relations attorneys to gain more advantageous settlements for their clients, and perhaps keep both the client and the attorney from receiving unhappy $uqlrbes when tax time ~rrives,

The Basics Property

Virtually ever)' divorce dtcrtt Involves a property .settlement. While, In general, property transferred between spouses made ''0 J""UAhY

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within one )'far after the end of a marriage is not subject to income tax (J I~C, 10<1 I), certain exceptlons apply which C<ln cause inclusion of property .setUcmCIlIJ In taxable income. The party receiving the property In the divorce proceeding takes the property with tilt same basis (or tax PUrpose$ as the property had In Ihe marriage. "lowCV\!r, if the transfer is made to a Spo\lse who is not a U.S. resident. or if the transfer is made to a trust rathu than direcUy to the spouse, any gain on the prop. erty must be reported and is subject to tax. The benefit of this non路taxable status is expllnded under Internal Revenue Code (iRC) f 2516. which prOlJides that if the property transfer is pursuant to a written agreement between the parties, in settlem~nt of marital and property rights, or if it is done to provide child support to a minor child of the parties, and the divorce occur! within a threeyear lime period beginning one year before the agreement is entered into lmd ending two years after the agreement 15 entered, Ihe Internal nevenue Service (IRS) pr\:$umes thllt the transfer is not intended as a gift, and therdilre is not sub. ject to "ift w. Child Support

Child support is perhaps the second most common provi. sion of a divorce decree. The IRS reeognb:cs child support as a responsibility of the paying party, regardless (I( whether or not the parents remain married, ru such, child support is not taxable to the non-custodial parent (lRC 搂 71(c)). nor Is it deductible to the paying spouse, regardless of the physical or leltal custody status awarded in the divorce decree. I I OW~vtr, the decree needs to be careful to make a distinction between child support and alimony in any decree contliining both pay_ ments. lest the entire amount be considered alimony, resulting in inclusion as taxable income to the receiving party,

Where the settlement agreement or divorce decree have !>ten less carefull., drafted and the distinction betwetn tht amount of support payment attributable to alimony and thai to child support is unclear, the IRS will consider the amount of tht undistinltulshcd payment ending upon a child attaining certain specified conditions, including death. marriage. age of majority or leaving Khool, as child support, resulting in its exclusion from income of the recipient. and also eliminating it as a deductible bmount from the incomt of tht payor. Given the formula llpproilch to child support found in Itule 32 of the Alabama Rule.( of Judici{ll AdminiSlration, and the requirement for wriuen justification of any deviation from this amount, the SeNicc would likely impute the I~ule 32 amount as child support in any unspecified support payment. A major issue which causu the divorced parties to be audited by the IRS is Ihe question of who may deduct the children of the mllrriage as dependents on thdr federal income tax return, The IRS routinely catches divorced parents who are both claiming the children as a dependent exemption. by com· puter matching Social Security numbers submitted on the tax return fo rm, and resulting in penalties and interest becoming due, in addition to the increased, re-computed tllX. IICIXlrtlng the Social Security number of dependent children Is a requirement in order to daimthe exemption. and the IRS will not permit a claim (or a dependent exemption (or a child without a Social S«:urity number, The ba5ic rule o( the Internlll Revenue Code is that the parent with primtlry physical custody is entitled to claim the exemption (or dependent children (me f 152), However, where the spouses are in dif(erenttax brackets, or where one spouse has no taxable income. this can lead 10 the exemption being wasted or underused. As a result, Ihere is prOllision in f 152 for the pri!l1llry physical custody p.uent to voluntarily give up the child's exemption in favor o( the non-custodial parent. Th i~ i~ accomplished by havIng the parent with primary physical custody complete an IRS Form 8332, and attaching that form to the fede ral tax return of the non-custodial parent who will be claiming the e.xemplion. This same ~'Orm 8832 is used when parents are entitled to claim the del)(!ndent exemption in IIlternatinll years according to the divorce decree or Incorporated settlement agreement. Alimony The third common tax issue in many divorcu 1$ the question of alimony, Alimony may be had as periodic, or recurring, alimony or liS "alimony in gross." Under rlumcrous provisions of lhe Internal Ilevcnue Code, alimony (and sepaTilte maintenance payments under a legal separation) are considered income to the recipient and as a deduction to the paying spouse. This fact an haw significant advantages in negotiating a settlement agreement betWf!en spouses whose postdivorce income will be significantly different, Where one spouse will have income plaCing them In a hillh Income tax bracket. the auvantage of being able to claim the deduction for alimony is greaLer than the impact of the income tax on

the recipient spouse in a low income tax bracket Being aware of the tax impact on each spouse can enhance the divorce attorney's ability to negotiate alimony Il3ymenls favorable to his or her client. Unlike periodIc alimony, alimony in gross is con~idered to be a property seUlement between the divorcing ~arties, and therefore is not taxable. 11'1 order to prevent the abuse of the distinction between deductible alimony payments and nondeductible alimony in gross, IRe I 71(I) makes provision for recapture of alimony payments deducted by the Pllying spouse when Ulere is sillnificant "front loading" o( these alimony payments. While computation of what constituteJ "front loading" Is complex, essentially. the IRS looks to the fi rst three years of alimony payments to determine whether an "eJlcess ~ amOllnt or alimony Is being paid during this timt period, If the total of Ihe first year's alimony minus U\e IIvera"e alimony paid in the second two years i5 greater than $15.000. or the second year's alimony minuslhe third year's ~Iimony is greater than S15.000, the payments will be considered as part of a property settlement, rather than periodic alimony. resultIng in their non-deductibility, Any "excess" amount deducted by the paying spouse will be re-computed as income to the p.:lying spouse, with an equivalent deduction from income for the rtcelving spouse, Divorce practitioners attempting complex alimony schedules must be aware oflhi' rule 10 prevent serious tax consequences to the client arId possible claims of malpractice against the lawyer, In determining whnt Is alimony, the attorney necd5to realil!:e thai !l1llny items of support to the ex-spouse may be I:onsldered alimony, not just cMh payments. An item which CM be: included is payment of court-ordered life insurance. ustd to replace alimony support in tht event of the death of the pbying ~poU5e. Again, howeVf:r, a distinction needs to be made between lift insurance intended as a replacement of alimony in the eVf:nt of death and that intended to replace child support. with the amount paid for child support beinll nondeductible, Also included among the non-w h pa)'Tllents which may be deductible as alimony are tuition p,aid on behalf of the spouse, medical insurance paid on bthalf of the spouse, or similar paymcnts. Note, howevcr, Lhnt where such payments are made for the benefit of the children, they will always be considered additional child support and thercfon nOTl-deductible. Attorn.y'. F•• Often the domestic relations attorney will be asked whether the cost of an attorney's ree is a deductlble expense, Ordinarily, this amount, regardlus of how large, is not deductible. HoweVf:r, where a portion of the attorney's fee is Itemized as tllX advice pursuant to a divorce procttding. that portion is deductible. Just as any other tax advice would be. The key is that the tax-related advice must be clearly delineated, The IRS will not presum~ a portion of a general divorce fee has been paid (or tax advice, ''''IICH toOO"

Re tireme nt a . ne llt. Where the partiu to the mllrrill.ge have done careful planning in the fo rm of a prenuptial agreement, s\lch ilgreement may be enforceable In the divorce proceeding, but it is not binding on the inS (or any agreements concerning who may be taxed on Issues In the prenuptial agreement. Among those rights which should be considered In prenuptlllJ planning for possible divorce are a spouse's righllO retirement benefits. While not necessarily present in all divorce cues, the an~a that has the greatest lax impact is oneil the issue of division of retirement fu nds, Including pensions. profit-sharing pIMS. such as 40 1(k) and 403(b) pians, annu-

ltics and $ulVllIOr benefit plans. I~ Quite often, these retirement fu nds can be II lignificant portion of lhe assets of lhe divan:ing couple. Eligibility of a spouse to receive. as a portion of the property settlement. /I portion of the retirement benefits from a spouse is governed by the Code ofAlabama, § 30-2-5 1. In order to recelve any portion of a !I>ouse's retirement benefi ts there must have been a marriage of at least ten years in length, Regardless of the length of the marriage, lhe total award of retiremenl benefits cannot exceed 50 percent. and no benefi ts ma.y be included in the divi· sion If those benefits were acquired " '....._~ prior to the existence of the marriage. If one or both of the parties to the divorce is a military member, the requirements become even more stringent, and are governed by (ederallaw, in the form of the Uniformed Services Former Spouses' Protection Act (USF'SPA 10 U.S.C. § 1401 ct.!Wq. More lI()«:ifically, 10 U.S.C, I 1048 (or division of retired pay and f§ 1447-1460 for Survivor Benefit Plan issues, discussed later In this paper), and Department of Defense reg:ulations. The i1§ue of military retirement benefits in a divorce is one fl11ed wilh misinformation, both among divorcing parties and among lawyers practicing divorce law. Perhaps lhe mOil common misperceplion is that a person divorcing a mil· itary member is automatically entilled to II portion of the mil· itary member's retirement bencl'it5 u a matter of federal law. Quite to the contrary, military retirement benefits are never an automatic enti tl ~ m(: nl. There lire provisions in the law which Ptrmit the Department of Defense to make direcl pay-

menl of retirement benefits 10 the former spouse at the time the reti red mi litary m~mber begins to collee! military retiremenl, de pending on .. combination of the length of the marriage and the length of military service. In 199:), Alabama became the last state in the Union to recog· n i ~e mllltary retirement benefits as divisible marital property. (Ex Porte Vaughn, 634 So, 2d 533, Ala. 1993). Prior to that case, the law in Alabama. W3$ that military retiremtnt Wa5 not divisi· ble aJ property In any event, although the value of mili· IIIry pension payments could be used in Qlculation of an appropriate child support or alimony amount. The US ~'S l'A was a reaction to a decision of the U.S. Supreme Court concerning a Califomla divorce case which said military retirement benefits 'Nere not divisible as property, USFSPA reversed this by declaring that retirement benefits were, in facl, divisible by divorce. However, this Act left It up to the gOVfming law of tllCh ~tll tc to deter· mine if such bencfi15 were property divi51ble under state law, The F.x Purte Vaughn decision, which covered only military retirement, was expanded upon in Byrd /.I. Byrd (644 So. 2d 21, Ala. Civ. App. 1994), extending coverage to ali lltirement plans as assets which a trial C(Iurt was I (ree to consider in fashioning property and alil1'.ony awards. As property, the divi!ion of retire· ment benefits are not modifiable more than 30 days after the entry of judgment In the dll'Orce case. (I.ocklier /J. l.ocklil!r, 625 So, 2d 442, Ala, Civ. App. 1993)_ The late recognition 0( this concept has led to many unhappy clienl$ in divorce pl'OCtedings, Qu.Ufl.d Dom.aUc Rel.tlona Order The procedure for effecting the division of retirement benefits Is the filing of a Qualified Domestic Relations Order (QDRO) with the retirement (und administrator. As each retirement fu nd administrator has its own requiremtnlS for whllt must be included in the QDRO, it is advisable for the domestic relaliom attorney to con13ct the plan administrator and request an example of an acceptable QOIlO prior to submitting the QI)110 to the C01.lrt for signature of the presiding judge.

A properly prepared QDRO, apprO\'ed and ordered by the dOme5tic relations court, witt not be subject to income tax if the transfer is made within ooe year of the divorce (IRe 1 1041), The Intemal Revenue Code further pennil$ that the transfer of Individual Retirement Account interesl$ (lUf'5IJ.1nl 10 a divorce is not taxable to ~ith~r polrty, (lRC 1 0108) Aft~r the division by the QDRO, the receiving spouse is considered to be the owner of the IRA or other retirement account. wku the original owner'~ basis in that portion of the account and pcrmil$ "roIlO\ler" of the account into other retirement vehicles In accordance with standard Internal HCYEfltJe Cooe procedures, (IRe § 402),

Survivor B.nem PI.n. A separate issue from retirement benefits paid to military members and federal civil service reti rees is the issue of military or civil service Survivor Benefit Plan (SHP) benefits, These federal programs are euentially s(lrvivor annuity payments for the surviving spouse or former spouse of a retired military member or civil service reliree, The rules are fairly complell and strict, Any attorney considering SOP pllymenl$ in the settlement agreement or divorce decree should con~ull with the personnel office at the nearest mJlitary Installation or federal employment office in advance of the firual divorce hearing to ensure all SUP benefits are protected,

o..th of • Form.r Spou •• Even well-designed settlement agreements can be defeated by the dcalh of the former spouse, From lhe beginning of the divorce, tax luues invade the divorce proceeding and have consequences where one of the spouses dies prematurely, Should one of the spouses die during the pendent)' of the divorce, the divorce proceeding will become moot. (Jom>s u. Jones, 517 So, 2d 606, Ala, t987), Parties lO a divorce often ask about existing wills in the event of the death of a divorcing party, If the divorce is not finlll, the ellisting will governs the distribution of property of the deceased, In the event the deceased has no will, Alabama intestate rules under the Probate Code lIovern, and the spouse will receive his or her appropriate share of the deceased's property, Once the divorce is final, all portion~ of the will of the deceased concerning h1:qu~sll to the former 5POU5C are automatically revoked by lhe divorce or Ilnnulmcnt. as well lIS any de~ll:lnlltion of the (ormer spouse lIS eltccutor, trustee or gUOIrdian under the will. However, if the parties are legally separated rather than divorced, the will provisions stil i govern, as the pa.rties arc legally still husband lind wife, (143.8.137, Code 01Alabama ), 1l is important to remember that a benefiCial')' deligflation under a life ill$urance policy is not revoked by a divorce decree or selilement agreement, nor can the will change the

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life insurance beneficiary designation, Unless the allorney is tllorougll in the administration of the divorce, this area can be easily overlooked, resulting in a windfall to a former spouse, Perhaps the most negative t:.'IX consequence concerning life insurance p.'lid tl) a former $pou~e is the fact that, if tile deceased remained the owner of the life Insumnce policy, tile forme r spouse reeeives the benefiu of the policy willie tile estate of the deceased former spouse Is required to count the face value of tile life insurance policy in the taxable eslate of the deceased, (IRe 12042) As federal utate taxes begin at 37 percent and rise rapidly to a5 high as 55 percent, the negalivt impact Coln be quile large, One very useful solution for the former spouse required to maintain a life insurance poliey witll the forme r spouse or children as the irrCVOCllble be.neficiill')', is the creation of an irrevocable life Insurance trust (lUT). Under tllis trust arrangement, the trust mllY purchase a nlOW life Insurance potil)" or tile insured may transfer an existing life insurance I>oliey to the trust. which becomes the owner of the life ht,urance. If an existing policy is transferred to the [LIT, the non-Inclusion of the policy benefill in the estate of the Imured will only OCcur aner tllree }'tars from the date of tmNfer 10 the JUT. (lRC § 2035) The fomJer spouse. or children can be named as the beneficiary in accol'tbnce wilh the divorce decree or selllement agreement. I3ecause Ihe insured former spouse has no incidenu

THE HIGHEST QUALITY IN COURT REPORTING !SIA!ltl~HED

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of ownership in the policy, the value 0( the policy is not included In the estate of the deceased. Since life insurMCt payments are not subject to inCOme Uu:, tile beneficiary spouse or children have no lax consequences either. Ca$e law in Alabama permill the payment of life insurance premiums to a truslto qualify as an acceptable alternative to direct owncrshil) of a life insurance policy, It should be noted that careful drafting or lhe JUT is required 10 eNure that the payment of premiu~ to the ILiT do not accldenlally resull in the paying spouse owing gift tax on tilt premium paymenll. The use of an ILIT is especil!.lIy helpfu[ whtrt the estate of the former spouse is quite large or if the l\mount of Ihe life insurance ordered for the benffil of the former spouse or cllildren is substantial.

Incom. ,..x •• Payment of income tax in lhe final year of marria"e is an issue facing Illost, if not all, divorcing parties. The ms bMIc rule is tlllll a person attains the tax filing status that he or she holds on Ihe last day of the tax year, That is, if the parties are married on December 31, they are required to file either a joint rtlum or separate returns filing illI married persons. This is 10 regardless of whether a legal separalion or divorce is in progress at the close of Ihe tax year. Settlement agreements during the first portion of the year sllould addrw the issue of who is entitled to the laX refund, if any, and who ;s liable for any taxes due if the parties attempt to file a joint tax return. Of special concern to forme r spouses is what happens to them if it is discovered that their former spouse hM not correctly reported income for lax purposes during the marriage. The [nlernal nevenue Code permits the inS 10 collecl any outstanding taxu from either party in a joinl tax return, Without regard to who actually earned the income resulting in additional tax due. It is quite common for recently divorced parties to receive a notice from the IRS that Ihe income tax return they thou"hl they were going 10 receive is being held by Ihe IRS in partial payment of tile tax burden of the former spouse. Given the common mistrust among recently divorced spouses, and the fearsome repulation of Ihe IRS in coliecting taxes due, this causes greal concern for many former spouses.

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Th. Innoc.nt Spou •• Rul •• Fortunately, recent changes to the Internal Revenue Code have significantly improved the options fo r former spouses. Known as the "Innocent Spouse Rule , ~ IRC 160 [5 provides three separate methods of relief for former spouses and tho.se legally separated O\Itr one year. The first of these methods is separate liability. The spouse who filed a joinl rtturn during the marriage, only to find the IRS coming ooc:k after \he marriage 10 collect b.lck taxes, can request that the IRS consider the liability of ~ac:h spouse for taxes due based upon their pro rllUl portion of the income urned. As a result, if the untllXed or under-taxed Income ISllllribut.able to only one spouse., Ihe other spouse cal) request Iha\ Ihe IRS collect Ille t:.'lXCS due only from the spouse earning the Income, or if the income is from both spouses, pro rate the tax according to

the relative income of each part)' which resulted in additional wes. To qualify for this relief, the two spouses (if still marriw but separated) must have lived separately for 12 months prior to the fil ing of the request for innocent spouse protection (not II requirement If already divorced): the spouse rcquesUng the relief must not have actual knowledge of the income causing additionaltaxes to be due; lind the request (or relief must be made within two years after the IRS begins collection !\Clivii)', If the addition,,1 tax burden is a result of underestimation or under-reporting of income which is unknown to the other spouse, that spouse may request innocent spouse relief removing any liability for the taxes due from the innocent spouse altogether. In order to qualify for this relief, the partie! must havt previously filed a joint return; the IRS must determine lhallhe miuUltemenl of tax is due to an erroneous Item of tht other spouse; the innocent spouse must not know or have reason to know there was an understatement o( tax due; it must be inequitable to hold the innocent spouse lillble for the tax; and the relief must be requested within the two-year time period after the ms begins collection activity. Finally, even if the (or mer spouse is technically liable jointly with the other spouse for the wes due, he or she can request that the IRS provide purely equitable relid from tax liability where it is shown that it would be inequitable to demand payment from the former spouse. If the additional tax due is lhe rhult of underpayment of taxes (as opposed to underestimation or under-reporting), then only equitable relief is availlible to the former spouse. The spouse requesting relief must file IRS Form 8857, f~eques l (or Innocent Spouse I~eli e r. within this two·year time (rame. The appliCllnt should request all possible forms of relief lit the same time, giving the IRS the opportunity to apply any relief which may be available. These are only the basic tax ramilications in a divorce proceeding. For the divorce attorney who remains unaware of the tax consequences of diVOrce decrees and settlement agreements, the pitfalls can be enormous. Convtnely, for the divorce attorney who is awart of tht various tax issues which surround dlvorct. Ule IIdvantages in settlement negotiations can be veT)' ndvllntllgeous to the client, providing significant leverage in the diVOrce process. In any event, providing the best possible advice concerning tlilt issues results in a more satisfied client. •

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Brasilian Judges Enjoy Visit to ASH nch year, Cumberlnnd School of Law, Samford University, hosts visiting judges from IJrasil (the traditional spelling), The judges attend law school classes, observe trial and appellate court ses· sions, and talk with the staff of both the Administrative Office of Courts and the Alabama State Bar. The iJrasifittn visitors represent both trial and appellnte courts in Bra.o;iI, and are primarily from the city of Sao Paulo, Professor C hlirle~ D. Cole, Ii member of the Cumberlllnd faculty, seNes as the director of International Programs for the Inw 5chool and coordinntes the 111::uming and implementation o( the visits. Professor Cole reported thnt the visitors were very impressed with the state bar's faci lity, howe\'er, the visitors were even more impressed that the state bar staff offered such a comprehensive QveNiew of the numerous bar functions. According to f'rofCS$Or Cole, b"r aswciations in IJrasil are not as effective as those in the United States, but visit! such as those to the ASB arc having a positive impllct on the functions of the Brasili/III bMs. •

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The Doctrine of Caveat Emptor and the Duty to Disclose Materi al Defects and Other Conditions in the Sale of Single Family Residential Real Estate:

Defining the Home Buyer's Legal Rights By Bawdy J, Brown

Introduction

Discussion

In the sale of single family residentlal real cstate, the relationship between buyer lind seller is generally no different from any other vendor-purchaser relationship. Ab~ent an express warranty, special relationship, or some actionable (r<lud on the part of the seller in induclng the sale. the tran$action between buyer and seller is governed by the doctrine: of c(JIJ('U/ emptor, or "let lhe buyer beware.~ 77 Am. JUT. 2d Vendor and PurchUS4!r § 326 (1997). Under this doctrine. a seller is not liable for injury to a buyer caused by a defective

A. 5.1•• of N.w Singi. FemUr R•• IMntl•• R•• I I.t.t.: Th. Appllc.tlon of the Doctrln. of C.v••' V.ndl'or Following the lead of a number of states, Ala~ma has abrogated the doct rine of calH!at emptor with resptclto the sale of new single family residential real est.'lte. In the 1971 case of Cochran IJ. Kea/on. the Alabama Supreme Court overruled itJ 1961 decision in Druid Homes. /llc. IJ. Cooper, in which the Alabama Supreme Court applied the doctrine of caueat emptor to the sale of a new residence by a builder·vendor. Cochron IJ. Keeton. 287 Ala. 439, 252 So. 2d 313 (1971); Druid Names. II/C. IJ. Coop0', 272 Ala. 415, 131 So. 2d 884 (1961). In abandoning the doctrine. the Cochran court implicitly acknowlcdged that a warranty of mncS!! and habitability, known as the doctrine of co/Jeoi /J/!11ditor, or "seller beWilTC:," applied instead in the sale of new single family resi dential real estate. 287 Ala. at 440, 252 So. 2d at 314. However, Ihe Cochran court did not discuss the scopt or the l'Ipplication of lhe caveat /)fmdiror doctrine. In tilt case of SimS /I. uwis, the Alabama Supreme Court in t979 formally recogni~ed the CO/Jf!Q/ umditor doctrine. 374 So. 2d 298 (Ala. 1979). In itJ opinion, the Sims court acknowledged that "implicit in Cochron is the principle that Alabama would generally follow the CQlJI!(Jt uendilor doctrine as developed in other jurisdictions." td. a1303. Drawing from the opinion in a similar case decided by the Indinna Supreme Cou rt, Theis/I. Neller,264 Ind. 1, 280 N.E:.2d 300 (t972), the Sims court outlined the clementi of a claim under Ihe implied warranty of fitness and habitability:

condition of the !(:1I1 tstate exislinR at the time the buyer takes possession.ld. Historically, Alabama courts have applied lhe CQ/JeQt emptor doctrine to the sale of single family residential real estate without exception. In recent years. however, Alltbama courl$ have chipped away allhe scope and applicability of the doctrine, weakening it considerably. Today, the doctriue or camw/ emptor no longer applies to the sale of new single family residential real u tale and is subject to a number o( exceptions with ruptcl to the sale of used single famity residenllal real estate. The effect of the$( changes has been to shift (rom buyer to stller part of the leltal responsibility (or ensuring the home is habitable and 'ru of defects. In light o( these changes, this article will analyze the rights and responsibilities o( the buyer and the seller in the sale of single family residential real estate. SpedOcalJy, it will (ocus on the current scope o( Ihe caveat emptor doctrine with respect to the seller's andlor real estate broker's duly to disclose to a buytr lhe presence of material defects or conditions in the sale of sinQle family residential real estate. U'

.... RCH;H>OO

(I) The plaintiffs purchased a new residence from the

defendants; (2) The defendants had constructed the residence; (3) The residence had not been inhabited by any other pellOn or persons prior to the purchase of the residence: (4) The residence was constructed by the defendants fo r purposes of ~Ie and was sold In a defective condition, which defective condition impaired the Intended use of the residence, namely, inhabitation; (5) Plaintiffs were not aware of the defective condition Imd were not possessed of any knowledge or notice by which they could have reasonably discovered it; (6) By reason of the defective condition, the plaintiffs suffered damages in the form of a decrease In the fair market value of the residence, Sims /J, lA/wis, 374 So, 2d at 303 (Ala, 1979). Since SinlJ, there has been IItry liUle liligation involving the implied warnnty of fitness and habitability. The few suils involving the implied warranty of fitness and habitability hilve dealt with the scope of the Sims criteria, One issue rcceiving attention from the Alabama Supreme Court has been Ihe lenn "other person" as it is used in the third element of the Sims criteria, ~'or example, in the case: of Waites u, 1bron, plaintiffs brought suit against the builder of their new home (or brellch of the implied warranty offitneu and habitability, 411 So,2d 127, 128 (Ala, 1982). In defense, the ddendilnt builder claimed the home ~'OU not new, and therefore not subject to the implied warranty, becau5e the plaintiffs had resided in the home fo r several months before purchllsing it. Id. Reasoning potential owners wili50melimes lillt in homes before purcha5Ing, Ihe court rejected defendant's argument. finding owners 0( a new home /II\' oot ~othe r persons~ (or the purposes of the third element of the SirILf criteriil. Id. at 129·130, In 1985, the Alabama SUI)reme Court faced a similar issue In the case of O'Connor /J. Scott. 533 So. 2d 241 (Ala, 1988). In O'Connor, plaintiffs purchased II home in which the sellers resided for almost \WQ years prior to Ihe purchase. (d, al 242, After noticing stT\lctural defects, plaintiffs brought suil against defendant sellers, (d. One of the bsuu in the case was whether the defcndants were "other per$Ons for the purpoSe5 of the third element in the Sims criteria. In holding the home in question was not "new" for purposes of applying the doctrine of COUM! uendifor, the court concluded the sellers of a new home. by living In the home before selling It, qualified as "other persons" under the third clement of the Sims crlleria. Id. at 243, Set also Hallgood /J. Burl Pounders RoolIII, InC .. 571 So.2d 1086 (Ala. 1990) (finding that the sale of a home was one of a used residence because the builder had lived in thc home for three years prior to selling it). Oul!lde of these types of cases. the abrogation of the doctrine of cal.lOOl emptor and the recognition of the implied warrant)' of fitness and habitability have Iilrgely eliminllted suits concernIng the disclosure of defects and conditloM in M

tht sale of new single family residential real estilte, A$ a result, there is little incentive on the part of the builder-vendor to challenge Ihe claim of the buyer. B. S.,. of U••d Singi. Family R•• ld.ntla_

R.al a.tat.: The Application of the Doctrine of C.v•• t Emptor Despite Its willinglleu to abrogate the doctrine of calJeat emptor with respect to the sale of new siOille family residential real utate, the Alabama Supreme Court ha$ nevertheleu refused to abrogate the doctrine as it appliu to the sale of used single family residential real estate. See, e.g., RQJI u. Nontgomerl/, 399 So. 2d 230 (Ala. 1980) ("althouAh we have abrogated the caueat emplor rule in .sales of new residential real estate by a builder-vendor, ... ~'e are not inclined in this case to depart from a long·standing rule which prO\lides certainty in this area of tht law"); I..ee /J. Clark & Assoclatl!J R('(JI f~/ale, Inc., 512 So, 2d 42 (Ala. 1987) ("Alabama still retains the caueat emptor rule as regards the sale of residential real estate"). However, the court has been willing 10 carve out certain exceptions to the C<lveat emptor doctrine in several specific 5itullllon5. These excepted situlilions can be divided into five general categories: (I) specific inquiry by the buyer; (2) latent defect that affecls health and .safety; (3) existence of a special relationship; (4) expreSli agreement; 3Ild (5) misrepre' sentation of a maltrial fac!. Each of these situations will Ix: discussed in turn. Specinc InQu11')' b)' the Buyt'r The first exception to the rule of ~1Ji..'(J1 emplor as it applies In the sale of used single family residential real estate is the situation in which the buyer directly inquires a5 to a material defect or condition known to the seller nnd/or broker. 11'1 Ihese cases, the seller and/or broker have a duty to disclose the defect or condition upon such inquiry. See, e,g" Ff!lmel Rooltll Co" Inc. /J. Mllrtin, 529 So, 2d 1003 (Ala, 1988) (affirming judgment against defend.lOlS for their (anure to disclose, upon direct inquiry b)' the plaintiffs, a malfunctioning llir conditioning unit that wou producing carbon monoxide). 10 triggu this exception. lhe buyer must (I) Il\llke an inquiry (ii) which is direct and (iii) which pertains to a defect or condition of which lhe seller and/or broker hllve knowledge. I.

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•. Inquiry mUl l be made For the specific inquiry tli:ception to apply, the buyer must 1Th1ke an inquiry into the defed or condition. If the bu~ r does not inquire, the exception docs not apply. The case of Hays II, Olzin.""" 1$ illustrlllive of this point. 669 So. 2d 107 (Ala. 1995). During a Ilre,puTchase inspection of their home, plaintiffs noticed a distinct odor in the kitchen area, but did not quution the sellers about the smell, Id. at 108. Mer purchasing the home, plaintiffs determined the odor was causcd by a pesticide spr~ in the home by sellers, Id. Thereafter, plaintiffs $utd sellers fo r failure to disclose the spraying. Id, Affirnling the trial court's judlOnent in favor of the ddend/lnts, the Nays court stated, ~~nt a questiort by the [plalntiffsl concerning the odor, the [defendants] were under no obligation to relate any informatlon about the odor." Id. The court concluded its opinion by staling the case "i11ustrate[d1 the Importance of a prospective hom~ buyer's questioning the seller regarding the history and condition of the home," 'd, b. Inquiry mlil l be dIrect The second requi rement of the specific Inquiry u«ption is lhe Inquiry must b( direct. In order to meet this requirement , the inquiry must b( specifi c and to the poinl. Questions such u, uls this noor warping?" or ul>oes the roof leak?U, satisfy this requirement: however. vague inqui ries, such as, uAre there any problems with this h ou5e?~, are insurncient to meet thb requirement See, (l,g., I/JC!/ II, "'rankle , 619 So, 2d 1277 (Ala, 1993) (finding thllt a "casual inquiry about loose dirt does not constitute a specific Inquiry about a material condition"); Ikmwllll. CA!ff·llesl Collirol, Ille.. 70 1 So. 2d 1122 (Ala. Civ, App, 1997) (determining that inquiry by plaintiffs regarding whether there .....as anything else about

the houst that they should know Willi too vague to bring CUt within the specific inquiry exception). c, Sellcrlbroker mu, 1 have Imowledge of Ihe defect or condition The third requirement of the specific Inquiry exception is the seller ;mdlor broker must have knowledge of the defect or con· dition In the used single family residential real eltate, Proof of knowledge requires a significant evidentiary showing. Evidence that only lends to show knowledge is oot suflicientj rather, the evidence must be direct and incontrovertible. For example, in Commercial Credit Corp. /I, lisenbu, plaintiffs sued Klier, broker and broker's agents for fail ing to disclose a defect in the home defe ndants sold plaintiffs. 579 So, 2d 129 1, 1292 (Ala, 1991). Plaintiffs claimed to have inquired about the condition orthe roof. ld. nt 1293. However, pl:linti(fs produced no evi· dence thlll de ftnd;mt~ had any knowledge of water damage or roof leaknge. Id. at 1294. Notlng defendanlA had no duty to disclose a Intent defect of which they were unaware. the court reasoned that "[ k[nowledge of previous problems and repair of earlier difliculties does not impute or constitute knowledge of present prob[ems,~ Id. at 1294, 2, Latent Deftcl that Mfeclt Un lth and Sifely Known by the Seller/Broker Asecond eli:ception 10 the rule of cowut emptor as it applies to lhe sale of u:sed single family residential real estale is the situat ion In which lhue exi~ts a defect or condition affecting health and safety not readily observable to buyer but known by sell ~ r undlor broker, See, e.g" Rumford /1. Va/fI'Y fbI Con/ro', Inc., 629 So. 2d 623 (Ala. 1993) (reversing summary judgment for the seller because aeller failed to disclose hidden termite

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infestation which could ewntulllI)' affect health and safety of the plaintiffs). In the latent defect exception , unlike in the case of the specillc inquiry txception, the ~e l1e r andlor broker have II duty to disclose the defect or condition regardlelll of whether the buyer directl)' inquires as to the problem, See Pennell, 529 So. 2d at 1005 (Ala, 1988). To trigger this uception, the buyer must show there was (i) a ddcet or condition affecting health and safety (ii) nol readil)' observable to the buyer, but (iii) known to the seller andlor broker, l . Defect or condition must affect health and safety The fi rsl requirement of the latent defect exception is thi:re must be a ddect or condition affecting health and safety. It is not enoogh that a defett or condition exisu: rather, the defecl or condition must also affect health and safety. The case of Quhiorl I). Mmadi is iliustfative, 345 So, 2d 268 (Ala, 19n), In CiWliorl, pl"inliffs sued sellers and broken for failing Lo disclose the home 50ld to plaintiffs had a standing water problem in the basement. Id. Plaintiffs alleged, among other thir\gs. thM dcfentl.lnls had a duty lo disclose the water leakage because it affected the health and safet)' of the pllintiffs. ld. at 269. Affirming the judgment in favor of two of Ihf: thret defendanlS, the court found that Ihe water p!'Oblem did not affect the health or safety of plalntiffs.ld. at 271, In so doing, the court confirmed that "the doctrine of COIX'ilt emptor ... should remain alive and well in t.he situation ... where the al1eg~d defect docs not affect health Ilnd safety." Id.

b. Defect or condition mUl l nol be readily obJl!rv. ble to the buyer In addition, the latent defect exception requires the defect or condition must be unobservable 10 the bUyfr. If the defect or condition is patent, the doctrine of C(lvtQt emptor applies, and seller andlor broker have no duty to disclose the dercct or condition. Instead, alls£lier IIndior broker must do 1$ provide bu)'er with an opportunity to determine the defect or condilion through illSp('Ction of the residential real estate. An example of this re(!uirement is given in CompcW Point Condominium 0u'rUlN Ass'n. u. Pirst Pederal Sou. & l.oon Assn or"'1orCIlCfJ. 641 So. 2d 253 (Ala. 1994). The plaintiffs In Compass Poillt purchased from a bank a condomini um thaI had obvious water problems. Id. :l.t 254. Plaintiffs brought suit :l.gain~t the b.1nk when the)' learned the blink failed to disclose a third·party report that detailed the WMer intrusion, Id. Rejtcting plaintiffs' argumenlS regarding failure of defendant bank to dlM:IOSt the report, the Alabamtt Supreme Court affirmed the trial c<!urt's summary judgment in favor of defen· dant based on tht fact thai "plaintiffs had ample opportunity to inspect the condomlnlu ms~ In order to delect the water damage, ld. at 255·256. See also Blaylock u. Carll , 709 So, 2d 11 28 (Ala. 1997) (fact that buyers knew of water damage before they purchased home precluded buyers from auer!ing latent defect exception to the rule of COlJeUt emptor). c, Oded or condition mUl l be known to the lellerlbl'(llcer The third. and final, requirement of the latent defect excep· tion ;5 seller antVor broker must have knowledge of the defect

or condition. To meet thia requirement, the bu),er must show the seller antVor broker had actual knowledge of t.he defect or condition, Simple :l.lIeg:l.tions that seller andlor broker knew of the defect or condition are Insufficient to show knowledge. For txample, in Williamson I). Realty Champion, plaintiffs pur· chased a home that ultimatel), lumW out to hallt a number of structural ddcc15. 551 So. 2d 1000, 1001 -1002 (All. 1989), Plaintiffs sued the real estate brokerage firm that sold the home, allegin.ll the Arm had fail ed to disclose !hUe dtfec15. Id. at 1002. However, plaintiffs failed to produce evidence ~howil'lg defendant had an)' kl'lowledge of the defects, Id, Finding no such evidence of knowledge, therefore, lhe Alabama Supreme Court affirmed the judgment in favor of defendant. ld.

3. Exlltence of a Spec.lal Relatlonl hlp Between Buyer and SelierlRl'(lker A third exception to Ihe rule of caveat em"tor M it applies to the sale of used residential real eslJlte occurs when there exists a special relationship between the parties which creates a duty on the part of the seller antVor broker to disclose defects or condi· tions in the real C$late. See, e.g., Cole I). Fa17TH!rS ,.:.rchange &1Ik. 1999 WL 820799 (Ala. eiv. App, 1999); K'e also Ala. Codt § 6·5·102 (1975). A special relationship between buyer and sell· er andlor broker can arise in two general circumstooces. The fi rst circumstance In which II $pccial relationship can arise is the situation in which seller and/or broker and buyer

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enter into a fiduciary relationship. See Cato v. /.ooxJer Realty Co., 630 So. 2d 378 (Ala. 1993). When the Po'\rtJes are deemed to be in a fiduciary relationship, the seller and/or broker must act in the buyer'! b<:~t interC$tJ. which Incl udes dlsci05ing any material ddectJ or conditions in the real estate that buyer is purchasing. Generally, any arrangement between seller andlor broker and buyer in which seller andlor broker agree to perform for or act on behalf of buyer would give rise to a fiduciary relationship. The most common such arrangement is an oral or written agreement in which the broker agrees to repre5ent the buyer in a transaction involving the purchase of si11(lle family residential real estate. The second d rcum$t.1nce in which a special relationship can arise involvts unequal bllrgainlng power between the two parties. In this case, if buyer lacks the same bargaining power as seller. then st11er may be required to disclme any material defect or condition in the residential real estate over which the parties are hargaining. Soo. ll.g. , Jim Walter Homes, Illc. /J. Waldrop. 448 So. 2d 30J (Ala. 1983) (Slating that "where one party has some particular knowledge or expertise not shared by plaintiff a duty to discl05e has been recognized"). liowever. facts indicating se11er andlor broker and buyer dealt with each other in an arm'S length tranSllctlon tends to show that seller andlor broker had no duty of disc losure.~. e.g .. Richard Brown Auclion & Rl'tll f;State. hlc. v. Brown. 583 So. 2d 1313 (Ala. 199 1) (recognil::ing that "an obligation to disclOSe docs not uise where the parties to II transaction are knowledgeable and capable of handling their affairs"). 4. ExprelJ Agreement Afourth exception to the mle of aJlH!fll emptor In the $ale of used single famIly residential reo,1 estate is the sitlJ<llion in which buyer and seJler agree by contract to the terms and scope of the duties and resporuibilities ov."'td each other. [n the usual sale, the seller includes in the sa[ts contract "no warranties and as is~ clauses which rtquire the buyer to accept the residential Nal esl.:lte as sold and In itJ ~as is~ condition. l1owever, buyer need not itCcept thm provisions and rna)' protect himself by altering the agr« mentto include terms more favorable 10 his position. See Mmltgomery. 399 So. 2d at 233 (Ha purchaser may protect himself by express agreement in the deed or contract for sale"); 1.L'tltlllm/X.JOd, hrc. v. Ikllror, 619 So. 2d 1273 (Ala. 1992). hI many wles of u5ed residentiill rCill esl1lte. the seller may warrilnt certain aspeclS of the home for a certain period of time. Such warranties elim I\Ilte the dOClril\t. of C(wrut emptor to the extent M

of the subject matter 0( the warranties, thus shifting to the seller p.1rt 01 the responsibility for repair 01 defects or othtr conditioru.

5. Mil represenlltlon of a Material Fact The nnal eXl;eption to the rule of COII('Qt emptor as it applies in the sate of used residential real u l1lte Is the situation in which the seller IlmVor broker misrepresenlJ a material (act relating to the home sold to the buyer. Si!e. e.g., Storrer v. Anderson. 70 I So. 2d 1140 (Ala. Civ. App. 1997): see also Ala. COOe § 6·5· 101 (1975). In the misrepresentation situation. the Miler an~or broker lire under a duty not to miuepresenlto buyer all)' material faetlhat buyer might rely on in purchasing the real esl.:lte. If seller andlor broker misreprC$Cnt a material fact upon which buyer relies, causing buyer da~ , the doctril'lt of COIJ('(Jt emplor will not apply to protect seller andlor buyer (rom the r~ult ing liability. To trigger this exception, plalntlff must show seller antVor broker (I) misrepresented (H) a material feet (iii) that the buyer relied on and (Iv) that Chused the buyer injury. a. Sellerlbroker must make I mlsreprelentation The fiTSt requirement of the misrepresentation exception is thai seller and/or broker must make a false representation. To meet this requirement, buyer must offer din'Ct evidence wt seller an~or broker knowingly misrepresented a defect or condition. Evidence showing only indirect proof that a flilu representation was made i$ it\$ufficient for the purposes of meeting this requirement. For tx.1mple, in Sanders v. ~Vhile. the plaintiffs brought suit against the se1leTS of a home that had a lellkIng roof and a dcfectiVt. supporting structure. 476 So. 2d 84, 85 (Ala. 1985). At trialplainliffs attempted to prove, among other things, defendnnlJ re-shingled the roof in order to conceal the (act thai the roof leaked. Id. Concluding plaintiffs fail ed to produce sufficienl evidence to show defendants knew of the defects in the home, the trial court entered summary judgment in favor of the defendanlJ. [d. On appeal, tht Alabama Supreme Court affirmed. $tating that "Itlhe fact that the [defendantJl put new shingles on the house does not, without more evi· dence. give riK to the inference they Intentionally misrepresented material faelJ about the roof.~ [d. at 86. b. The mlsrepreu nlallon mu. 1 concern a material fact TIle second requirement of the misrepresentation exception is the misrepresentation must concern (i) a fact th.,t i5 (ii) mat..:ri,,1. To prove this requirement, buyer must lirst show the misrepre. sentation coocemed a fact. Mere opinion. or "putlery" as it 15

called, is insuffidert for the purposes 0( pnwing the (act requIrement. &e, e.g .. O>rrtdius v. Austin, 542 So.2d 1220 (Ala. 1989) (sellers' negative response to plaintiffs' question whether there were any problems with the houst "OOI'IStitutcd an expression of opinion, not a misrepresentation of fact"); Cooper & Co., Inc. II. /Jr!ltml, 440 So, 2d 1016 (/\Ia. 1983) (Uealtor'5 dC5CrlpUon of the house's condition M "excellent" w;u an opinion and mere puffery). Ilowevcr, any representation that is a d~Rfll tc lind unequivoc.'ll statement of fact will satisfy the requirement. For example. in Cruse IJ. Coldwell (Jullker/G'robOJ Real Estafe. IIIC., plaintiffs purchased a home advertised by defendant real estate brokerage Rnn;u ~ntw." 667 So. 2d 714, 715 (Ala. 1995). Mer taking posswion. plaintiffs noticed 5CYCral defects in the home and thereafter brought suit against defendant. /d. Rejecting defendant's chatacluitation of the U$t of the lenn "new" as puffery, the A1abam.l Supreme Court reversed the trial court'5 judgment in favor d the defendant, ruHng that "the unequivocal term 'ncw,' when applied to real estate, Is not merely descriptive I, butl is a definite leg.1J tenn that carries with It the Implied warranty of habit.lbility and prevents the broker/Realtor from invoking lhe protection d the doctrine of ctweal eIlIlJlor," Id, at 716. In addition. buyer mwt also show the fact misrepresented was material to buyer's decision to purdl3se the residential real estate. I( the f:w:t misrepresented \o\'OUld not h.we affected buyer's decision to purchaJt tilt home, then seller "n<VOT broker cannot be liable under this exception, for buyer 'W'Ould have entered into the purchase regardless 0{ the misrepresenllltion. The Alabama Supreme Court cast of R('eVf!S II, Po,.t& iIIustrales this requirement. 521 So. 2d 963 (Ala. 1988). In Reeves, plaintiffs slfed a broker and its agent for failing to disclo.'\e termite and water damage in a home sold b)lthe broker to the plaintiffs. /d. at 966, At trial, defendants produced evidence plaintiffs had conlrllctuallyagreed to purthase the house even if there. was structural damage to tilt proptrty. ld. at 967. The trial court granted summary judgment in f~\IOr 0{ defendants, and plaintiffs appealed. Id. at 964_ Affinnlng the trial fXM.Jr\. the Alabama Supreme Court found the "alleged misreprtsenlatlons in the present case \o\'ere not material, because the jplaintiffs1 were not. and could not, have been injured by relifiJ'\Ct therr:on." Id. at 969, c. The buyer must rely on the mlsrtpruentaUon The third requi rement of the mIsrepresentation exception is th.1t the buyer mU5t rely on the misrepresentation. Reliance is closely related to the materiality requirement discu~Std above. To meet this requirement, buyer must show reliance Of\ the misreprmnlation in making the dedsion to purchase the used single family rtsidentlal real eslate. In Affa Reallll. Irlc. v, &11, for example, plaintiffs brought suit against a broker and its agents for mlsrtprtsenting the condition of II home sold to plaintiffs, 733 So. 2d 423, 424 (Ala. eiy. App, 1998). SpeciRcally, plaintiffs claimed defendan15 fai led to disclose the roof leaked. Id. At trial, defendants argued plaIntiffs could not have relied on defendants' representations because plaintiffs did not belieye the roof was leak-free.ld, at 425, As proof of the plaintiffs' skepticism, defendants showed that after the represef\latiofls were made, plaintiffs hired an engineer to inspect the home in order

to confinn the roof did not leak. ld. Finding that plaintiffs did not rdyon the rcpresenlations of defendants, the court stated, 'The undisputed filet that Iplaintifn was unwi lling to accept the statement of Ule jdcfend:lntJ without veriRcation is evidence that he did not rely on il." Id. The Ball court Ihen reversed the judgment in fllyor of plaintiffs lind remanded the case for a new Irial b.'\5Cd on other grounds. Id. at 426. d. The mllnlpnllenlallon mus t cause the buytr damage The final requirement of the misrepresentation ueeptlon Is the misrepresentation must cause the buyer injury. The evidentiary shOWing required to prove inju!)' in this case Is relalively low. All the buyer must show is the misrepresentation caused some injury that would not ha\lt resulted but for the misrepresentation. Inju!)' is not limited 10 physical injury, but includes financial damage as well.

Conclusion While the Alabama Supreme Court has replaced the doctrine of co/X.'OI emplor in the sale of new single family rtsidtntial rt.ll UllItec with Ihe doctrine of cavrut IJ(lfldilor, it nevertheless continues to apply the doctrine of cavrul emplor to the sale 0{ used single family resilkntial real estate. H()'A.'t\Itr. the supreme court has determined thert are certain circumstances in which the doctrine of cauoot emplOr should not apply. These circumJiances can be grouped into the following five categories! (I ) specific in(]uiry by Ihe buyer; (2) latent defect that affects health and safety: (3) existence of a special relationshIp; (4) express agreement; and (5) misrepresentation of a material fact. The foregoing exceptloll$ to the caveat emplor doctrine have helped to mitigate the significant burdens UII~ doctrine places on the buyer 0{ used residential real estate; howeYtr. the exceptions are far too narrow to provide complete relief. The continlied application of the cavrul emptor doctrine to Ule s.lle of used sinille family residential real estate can still trllP the unwary home buyer. As a result, buyers of used single family residential real estate must continue to be aware of their unprotected position and t.,ke every precaution to protect IhemSt]ves from the harsh conSl:quences the doctrine can cause, â&#x20AC;˘

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Code of Legal Ethici 'I

By Mary Edge !-lorton n J)cctmbcr 1-1 , 1887, the 68lh anniversary of Alabama's statchood, the Alabama SUit Bar adopted a Code of Ethics, the first such American code and a subscquent model (or that of many other stales. The author was primarily Thomas Goode Jones, Col. Thomas Coode Jones was it distinguished ex·Confederate officer. serving the State of Alabama in the dark neconstruction days. lie served as Covcrnor of Alabama twice, lind was a member of the Constitutional Convenlion of 1901. He also served 13 years as 11 Judge of the United Slates

District Court for the Northern and

Middle Districll of Alabama. The Alabama Code was, in large part, subsequently made on the basis of the canons adopted by the American Hat Association, which were presented by a committee that included Col. Jones. It was also adoptoo by Ihe bars of ! ! sLaU:s. Thomas Goode Jone5, a young man who had studied law in a night clll$S held in Montgomery h)' Chief Justice Abram J. Walker. was intmsted in the wtl(are of the younger lawy(!rs of the Montgomery bar. and frequently assisted them with their questionsand problems, They con· suIted him onen about mnny matters, Including the subject of professional ethics. On his desk. he kept II. copy of "An Essay on Proft$5ional E lhics~ by former Chief Juslice Gtorge Sharswood of the Supreme Court of Pennsylvania. a distinguished lay,oyer. law professor and jurist. Judge Sharswood's "Essay" was fi rst published In 1854 as II "Coml>end of Lectures on the Ainu and Duties of the Profes,sion of the l.aw.ft delivered before the law class of the Univenily of Pennsylvania ', but it was not widely d rculated in Alabama. Col. Jones consulted It regularly. Many of its principles and • 2ft MA RC H :tDDO

standards are visible in the code which Col. Jones drafted. In 1881. Thomas Coode Jones, 37 years old and chairman of the Alabama State Bar's "Committee on Judicial Administration and Remedial Procedure." fiut recommended "that the A5soclalion appaint a comtrlillee. with instructions 10 report a Code of Legal EthiC! for coruideration at the next annual meeting." His suggestion was worded as follows: "While there are 51<1ndard work$ of Slreat eminence and authority upon leil'll ethics. these <Ire not always hcceuible. In marly insl:lnces. practices of questionable propriety are thoughtless ralher than willful and would have been avoided if any shorl. concise Code of Legal Ethics stamped with lhe approval o( the Bar had been in easy reach. Nearly every profession has such II work which is treasured by Its members. With such a guide pointIng out in advance Ihe sentiment of the Bar against practices which it condemns, we would find them disappearing, and shOuld anyone be bold enough to engage In evil practices the Code W(luld be a ready witneu for his condemnation and carry with it the whole moral power of the profession.... What just complaint exists of lawyers stirring up strife. or being swift to originate or initiate litigation, would vanish when the profession throughout the St.,!c rai$(!S its warning voice in advance against these pernicious practices. The lllwyer who shall frame such a Code need ask no greater nor more enduring fame. f\othing would more effectively promote the ends

of justice or tend more to advance judicial administration." It was ironic that this duty was later w igned to Col. Jones. For wh&tevCf reMon. this suggestion was not acted upon by the bar until a year laler. when Major Henry C. Semple. a Montgomery lawyer, moved that a committee o(three be appoi nted to compose a Cooe of Ethics 10 be presented at the next bar mteting, and that Col. Jones be the chai rmln of thllt cornmittee. This motion was carried, but duc to some misunderstanding, the membeu of the committee were not named. Col. Jones felt It would be Improper of him to proceed alone. regarding the duty as VCI)' delicate and important. and desi ring the counsel and experience of a full committee. In 1883. at the fi fth annual meeting of the bilr in Blount Springs. Col. Jones. serving a$ chairman of the ~;xecu tive Committee. again brought the need for this Codc 10 the attention of his col· leagues in his report, stilting:

"Your committee believes that a Code of Legal Ethics would go VCI')' far. using the language of our Constitution, 'to advance the science of jurisprudence, to promote the administration of justice throuilhoul the state, uphold the honor of the profession of the law and establish cordial intercourse among the me mbt r~ of the Bar of Alabama.'" The committee recomnlcnded the appointment of a special committee of three to prepare a Code of l..egal £thics for the Bar of Alabama. and report it to the nexl annval meeting. The special committee consisted of: Col. Jones.

chairman: Col, Richard Orrick Pickett, a distinguished $Oldier of the Southern Confederacy and an outstanding northern Alabama lawyer. and Col, Daniel Shipman Troy, a veteran of the Confederacy, and an able lawyer, Although neither Col. Pickett nor Col. Troy took lin IIctive part in the drafting of lhe Code, a draft of it WCl$ apparently submitted to them for thei r approval prior to its presentation to the bar, The next mteting of the Alabama State Bar was held in Binningham in 1884, \Yhen Ihe report of the special committee was called for, Col. Jones requested additionallime, staling that Mdrafting a Code of Ethics is a matter o( such importance to the profwion that it cannot be done hurriedly, A!lrI:'" delll of preparatory work hll.1 been accomplished. Letters have been Wrllterl to many eminent lawyers and judgu asking suggestiOr\$, and with the aid lhU! ob!;lined the Chairman had expected to be able to draft the Code and submit it to the ml'mbers 0( the Committee in time to be acted on at this meeting, The week.set apart for this work was unavoidably taken up by other duties and the committee is relue!;Intly compelled to ask the indulgence of the Auociation until its next meeting. ~ This request Wi\.'i granted. The seventh anTlulil meeting of lhe bar was held at the Capitol in 1884. When the report of the committee WCl$ called (or, Col. Jones was on the floor of the State Legislature in a debate, $0 the considel1ltioo of the leport was postponed. but it was ordered to be printed In pamphltl form and sent to each mtmber of the bar with Instructions that they read It and be ready to discuss it and make suggestions at the next meeting. In 1885, at the eilthth annual meeting of the bar in Montgomery, when the report was called for, Col. Jones was Involved with the U.S. Court. It was postponed for another year. The ninth annUllI meeting was held in Montgomery in 1886. The report was set to be presented on Wednesday, December 2, 1886. Col. Troy, a member of the committee, stated that Col. Jones, as Speaker of lhe l'louse, relt thaI he needed to be at the l..ellislature in the morning, but moved that the report of the committee be set to be presented a\ 4 p.m, This moti(]n was adopted.

At 4 p.m .. Col. Jonts arose and stated that an ilccident prevented him from presenting the report-apparently part of the proposed Code of Ethics had blown out through a window and w;u losll Considerallon of the Code was again postl>oned, but it was again ordered to be printed in a pamphlet and senl to 1111 the members, In 1887, Montgomery was again the site of the annual har meeting, At the morning session on December 14, in the hall of the liouse of Representatives in the Capitol, Col. Jones at long last read tilt rtport of the committ« appointed to draft a Codt: of Legal ~:thiC$, in its entirety. Be further asked lila! the committee be discharged, and that further consideration of the report be made a sl)eclal order of 4 p,m, that day. The oor reassem· bled that afternoon to discuS!! the Code, The preamble was immediatel), adopted, and the remainder of the report was dis· cussed extensively, section b), .section, Of interest, the shortest of the 56 seclions of the prOJ>O$ed Code was Section 20, which read: W An attorney should not

conduct his own cause." Mr. Alex 1. London of r.10ntgomery, later of Birmingham, stated that he did nol see any objection to it M [bJut It Is one of the American privileges to make a fool of yourself and it Is guarllnteed b), the Constitution, and I do not see anything wrong in ih1nything immoral in it, and I move to strike the rule out." Thai rule was stricken. Following the discussions, the Code was adopted as a whole. At that time, there were apparentl)' 795 lawyers in Alabama. and only half of them were members of the bar. One thousand copies were ordered to be printed, with one mailed to every lawyer in the state, and to each of the judges of the courts of record. The Code was printcd for the fint time as an appendix to the report of lhe: 10th Annual Meeting of the Alabama State fiar. This Codt was written by Col. Jones without any model or guide, exctpt for guidance from Judge Shanwood's ~ E5say,~ It was adopted with Vfry few coonges from the original draft, 8r\d the

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Alaban,a State Blr has the distinction of having adopted. on December 14, 1887, the fi~t Code of Legal Ethics In lhe country. In 1907. approximately 20 years after the adoption of the Code. the Alabama State Bar printed and framed copies of the Code to present to all the courts in Alabama. The Alabama Law Journal (i~sue October 1925, vol. I , no. I , page 24) related the ItOry of Thomas Coode Jones, while pre~l ding on the bench of Ule United Slate.! District Courts for the Northern and Middle districts of Alabama, haying his court interrupted by Mr. Alexander Troy, secretary of the Alabama State Bar, who presented a framed copy of tile Code to the court. Mr. Troy staled, "Your honor, if one's lit· crary productions are the children of his brain, then. in presentins this Code to your honor. and askIng Its accep· tance, I feel Ulat I am but presenting you with one of your own children." The committee of the American Bar Association on a Code of Professional fo:thics. in 1907. iIo5 reported by Col ,

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Thoma.~ I [amlin Hubbard of New York City, stated in part:

"The report which I now present gives the Alabama Code and tht variations made b) the ten associations other than tilt association 01 the State of Alabama that have followed it. So that you have before )'Ou in this report. as we think. the substance 01 all that is needed to prepare canons of ethics and you have in lhe main a form which may safely be adopted; (or mani· futly, it is safer to follow a good precedent if one Ius been made Ihan to establi~h a new one."

In its final report, the committee of the Americ.ln Bar A.$$OCialion, on Thursilily, Augusl27, 1908, paid a tribute to the AJl\OOlTh'l Code lind ItJ ~\.Ithor M foll()W~; "The foundation of the draft for canons of ethics, herewith submitted, is the code adopted by the Atilbama State l3ar A$scx.iation in 1887, and which, with but ~light modificatiOns, hMlx!en adopted in e1CYen other states. The committee in this connection desire to record U\eir appreciation of the hetp they have received in this work from their fellow member, lionorable Thomas C. Jones. of Alabama. who was the draftsman of the Alabama code of ethics, and who attended the three days' session of )'Our committee in Washington, M(lrch 30 to April I, 1908, and moved the adoption of a numbt:!r of your committee's modificati(IOS of Ihe Atab:una code dmftcd by him more than a score of years ago." This history of the Code of Ethics was written by Col. Jones' son, Judge Walter Burgwn Jones. The Code of £thics itself Is stated in Alabama Reports, volume 118, /IfId reptinted in the same book as the above·mentloned history. beginning on page 259. In 1998, a historical marker was placed outside the Alibama State Bar building in Hontgomery. giYing a history of the Alabama Slate Bar. A portion of that marker reads; ~Thomas Goode JOI\t.S o{ f.10ntgomery drafted a code of profusional ethics, and

on ~cember 14, 1887, Iht Alabama Bar became the first in the country to adopt a code of legal ethics. The AJabal'l'ia code was the foundation of the canons of ethics later adopted by the American Bar Association and by other slates.~ Additionally. a museum display has been sel up in the Alabama Judicial Department building in Montgomery which contains some of the documents used in compiling the infOl'maUon {or thIs article. This display also includes one of the framed original copies of the Code (on loan from the Jackson Count)' Law Library) which was distributed to 1111 the courthouses in the state in 1907. The information eontained in this article was taken from the following sources: I. The AI(lbama Law Journal. October 1925, vol. I. no. I. p. 24, 2. Hon. Ceorge Sharswood, i.L.i)"AlI f:..·ssau 011 Proff/ssionalt:'thics, 5th edition, in the f.1emorial. 3. "Canons of I'rofessional Ethics. Their Cenesls and H istory,~ Notre Dame Lallll/Cr, \/01. 1. 1931 -32. 4. " ~'inal Report of the Committee on Code of Professional Ethics,~ Reports of the American Bar Association, vol. XXX III , 1908. 5. "Code of fo:thics Adopted by Alabama State Bar Association ,~ Alabama Rt!POrfs. \/01. 118. 1897, p. 259. 6. "The Alabama Code of l.egal ~:thics," ThaAlabama IAwl/cr, vol. 2. p. 245, July 1941. • Endnot •• 1fI~ IfOII' An ElM)' on PnIIINlonilI Efhk. by 11On. QOO<goII SNi,IIWOOd. ll.D.. 81h

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OPINIONS OF THE GENERAL COUNSEL By J. An/hOlly Mc1Ahl, VI/nerol counsel Que.tlon;

LawyerWitness Rule Not Applicable to Pre-Trial Phase of Litigation

"In J\JnC. 1988 Ms, Doe came to me (or advice in regard to her work·related injury while in the employ of ABC on or about Februtlty 1988. During Ule CO\lrse of my representation of Ms. Doe, facts came to my attention which would Indicate that she was harassed by the employ<:r arId, more p.lrticularly, its plant nurse. [ had <I munber of conversations with the attorney (or ABC, the personnel manager (or AIle, a n:h.lbilitation nurse hired by Ule wmkrnen'$ compensa1ion carrier, Ill1d two emplOyees of the workmen's compensa· liM C.'Irricr oor'lceming my client's med. ical condition a.nd the (acllhal [ thought she was being harassed by the plant nurse. On two or Ulree occasioru [ WIIS oont.lcted by the personnel manager of the COffiP<lny who desired to know when my client would be returning to work, He was quite insistent upon obtaining this knowledge I)t:cavse he S<lid he n«ded to make provi· sions for replacing her i( she would not be back and needed 10 take care of other administrativt mMte~. Il<l~d on information that I obtained, I wrote the personnel manager aleHer stating that my client would not be returning to work beCilU$e of the recommendations of her doctors concerning her medical ,uld mental condition resulting from her injury, Upon receiving my letter the persollnd nl.,nager mailed to me a letter stating that he considered th.l1 my clienl had Quit. To my knowledge I h.,d no h,Jriher cont.let with the person· nel manager after this point. On 8·28·89 I, along with oo-counscl, brought a suit against ABC 01'1 behalf of Ms. l)oe in the Circuit Court of Anywhere County. The s\lit alleged injuries compensable under the workmen's compcnMltion law of the sltlte of Alabama and also stated a claim for wrongful discharge or termination under the same workmen's act. These two causes of aclion were later severed for sep· arate trial. Ajury triill was requested by the plaintiff for Gause of action based upon wrongful1ennil'llJlion. "During the course of di~covery the deposition of the personnel momager,

Mr. Smith, was taken by the plll1ntlrfs. At the deposition Mr. Smith malle the following statement when askell about a conversalion thai he had with me: I)ages 132, Lines 13 & 14: Q. 'Okay. 1)0 you recall anything else thaI was said in those dis· cunions?' Pagc5 132, Lines 15 & 16: A, 'The only thing Ihal l remember specially thM Mr. G told me was when she quit.' Pages 132, Lines 17, 18& 19: Q, And what was that ?' A, That, In essence, Ms. Doe has quit and she will not be returning to work.' "Subsequently the defcndant ABC noticed Illy deposition and it was taken in pari but not concludell em the 6th of March 199 1. "At my deposition, counstl for the dcfend.1nt raised questions about the propri ~IY of me continuing 10 represent my client and le$tilYin~ at the trial of the case and d ted lIisciplinary rule 5· 101(B) of the QxJe of ProfeSSioIlUl R(${JQI:sibilitg of the Alabama Stale Bar. I h,we consistently maintainell to the attorneys fo r the defen· dants and the court that b.1S('d upon the discovery that we have had to d<ile, tI'Illl it would nol be necessary for me to tC.!itify in Ihe case unless the personnel marlagcr for the defendant or the workmen's com· pensation nurse or Ihe employees of the iruurance carrier testified as to matteI'S that were diS(u$Sed between us prior to the instigation Of th~ l(lwsuit, and that such testimony W<IlI contrary 10 my understanding of our conversation. I have not heard anything to date Ulat would lead me to believe that I would be called as a witness for the plaintiff in tile case in chief or for impeachment pUI'J)OSC.!i ilgainst defendanls' witnesses. My feeling is thallhe only lestimony I might give would be for impeachment of one of the defeJltoe witnc~s previously mentioned if tlley were to change their I~timony or testify to facls that were contrary to my

memory of said communications. "Because the defendants have made various remarks concernin!!: the propriety of my reprc!\Cntinll my dient and testifying!1S a witness III the trial I would apprecJlIIe it very much if you could answer the following questions: I. I~i rst. can I continue to represent Ms. Doe throughout the remaining discovery procedures In this case? 2. Can I repr~sent Ms. Doe III the trial of the wrongful dlschuge action andlor workmen's compe n ~tion action? 3. If I am called upon to give testimony to impeach ddendanl$' witnesses concernin!!: my communications with them would I be required to withdraw? 4. If it becomes apparent that [ may be COIned upon for the 50Ie purpose of impeaching tesUmony given by the defendant's witnesses concerning whether or not the plaintiff volunl.arily terminated her emplo~men t, may I continue as her attorney ilnd give such testimony or am I required to with· draw at that. point? 5. J( the defendants call me as a witness. wQ(lld I be required to withdraw?' Answer. Qu.stlon One: Yes, the lawyer-witness rule is not applicable to the pre-t rial phase of litigation. Answer, Qu.stlon Two: You may represcnt M$. Doe at thc trial of tht workmen's coml}(!nsation IIction since it is "unlikely" that you would be II "necemry witness." The answer to your Question concerning tile representation of Ms. Doe at tht trial of the wrongful discharge is contained in three, (our and five below. Answer, Qu.stlons Th ...., Four & Flv.: You must withdraw from the reprt$entation of Ms. Doe in lhe. wrongful dlsch<irge action, if, at trial. you are cIIl1cd upon to testify concerning whether or not the plaintiff volulltarily terminated her employment, unless withdrawal at that poi nt would work it substantial hardship on your "2 MIIIl C" 2000

client. Your withdrawal in this inslance would be mandated without regard to which ",1tty C<illed you as a witness. Your disqualifi. cation in this matter, however, wou ld not extend to co-counsel or other members of your firm. Discussion: Itule 3.7 of the Rules of I'rofessional Conduct of the Alabama State Bar. dfective January I, 199 1, continues lile traditional and wel1 - est~bli shed proposl' tion that a lawyer who represents a tllent in a liliRated matter may not also appear in that matter as a witness. Rule 3.7 provide$ as f()l1ow~ ; ;'nule 3.7 l-llwyer iI$ Wilne$$ (a) A lawyer shall not iltt as advocate at 01 trial in which the lawyer is likely to be a necessary wi\J\ess. ~xcept where: (I) The testimony relates to MI uncontested issue; (2) The testimooy relatu to the nature lind value of legal servicu rendered in the case: or (3) Di ~qua1iflcalion of the lawyer would work substantial hardship on the client. (b) A lawyer may act as advocate in a trial in which another lawyer in the lawyer's firm is likely to be called as a wltneM, unless precluded from doing 50 by Rule 1.7 or Hule 1.9." 1'he prior lawyer.wilness niles, DR 5I01{B) and I)H 5-102, contained the somewhat vague langu.'lge regarding the tondilions that would lead 10 disqualillcation, i.e" wher\ a lawyer "knov,1 or it is obviow that he or a lawyer in his firm oughl to be called as a witness." The effect of this Ian· guage in some instaJ'ICu clluscd counsel to be diSQualified on mere speculation. TIle language in new Hule 3.7 is more carefully drawn requiring withdrawal only when tile lawyer is "likely" to be a "necessary" witness. Consequently, the decision to withdraw can, in I«JQd faith, be delayed to a Ume closer to the dale of the trial. At that pQint, the lawyer would then dctel'lT'line whether his continued representation at trial would be permittw under any of the three exceptions in 3.7(a). The third exception IRuie 3.7{a)(3)J to the lawyer-witness rule is the most important because it permits an equitable balancing of the interest of the parties.

Consequently, a lawyer may continue as an advocate at Irial even though ht is a witnc$$ if the h.1rm to his client caused by his withdrawal is nol outwelghed by the harm to the opposir\g part>·. This eXCel)tion Is similar to the exception found in DR 5. )0I(B)(4) but is less restrictive. The language in DR 5-101(13)(4) permitted a lawyer to continue as an advocate at trial if his disqualific.ltion WfJuld ;\\''Ork a substantial hardship on the client because of Ihe dlsthlclillf! wlue of the lawytr or his firm a.~ COu n~el h\ a particular casc." (emphasis added) The new language permit.! a balancing of Ihe equities without t~ing substantial hardship to the dislinclive IXlluo of the lawyer. F'inlllly. Rule 3.7(b) makes it clear that the disqualification is personal and is not imputed to other members of the Ii\wyer's fi rm. Thus, i\ solution, and a factor, in balancing the equities involved in disqualillcation i~ to ~ r mi t another ];I.wyer in the firm to continue the trial should thllt become necessary. h\ tilt filet situlltior\ that you pose you state. "I have consistently maintained to the attorneys for the defendant and the court that based upon the discovery that we have had to d.lte that it would not be netessary for me to testify in the case unless the personnel man.1~er for the defend.lnt or the workmen'5 compensation nurse or the employees of the insurar\ce carrier te~lilled as to m.1Uel'$ that were discus.sed betwten us prior to the Instigation of the la~ult Ilnd that such testimony was contrllry to my undcl'$tandlng of our convenation." In view of )'Our uncertainty concerning whether it will be neces· sary that you be a witness,)Ou may delay a withdrawal decision to such time that an)' uncertainty is resolved. It should be noted thai It does not betome "necessary" that a lawytr be a witness simply because the opposing party asserts tb.lt the lav.ryer has knowledge th<Il might be rcleVlu\t. If, in fact. it docs become "necessary" thllt yOu be called a~ a wilness. whether before trial or during trial, lhen you must withdraw as counsel at the trial unless your testimony relates to an uncontested issue or withdrawal would cause a substantial hardship on your client. In this regard, if pO$sible, you should prepare co-counsel to proceed with the trial should it bec(lme neccs~ary {or you to be a witness. • 11<0-91 -191

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DISCIPLINARY NOTICES mal disciplinary charges within 28

Notices

days of Milrch IS, 2000, or there-

• John Thflmll& Kroulter, whose

whereabou15 are unknown. must answer the Alabama State Bar's for mal disciplinal'}' charges wilhin 28

days of Narch 15. 2000, or there-

after, the charges contained therein shall be deemed admitted and lIPpropriate discipline shall be impo~ed allainsl him in ASH Nos. 97·371 (A). 98-274(A) and 99129(A) before the

DI ~cipHn:II')'

Board of the Alabama Stale 13M. • Harold G. QuatUelNlum, whose wherenboul$ lire unknowll, must

<inswer Ihe Alabama State Bar'! (or-

after, the charges contained therein shall be deemed admitted and appropriate discipline ~hall be impo$td aguiltS! him in ASB No~. 94-014(A), 94-138(A), 94-222(A) and 9S.279(A) bcfo~ the DiscipHnary Soard of the Alabama St.lte &lr. • Richard Jude Spurlin, whose whereabouts are unknown, must lillswer the Ailiballla State Har's formal disciplinary charges within 28 days of March 15, 2000, or thereafter, the chMges contained therein shall be deemed admitted and appropriate discipline shall be imposed against him in ASB Nos.

Reln.t.temen ••

Suspensions

• On October 28, 1999, Gulf I3ree!:c, Florida lawyer Richard E. Ju month was reinstilted to the roll of the Alabama Supreme Court as an allorney authorized to practice ]<lW in the

• Effective January 3, 2000, attorney Gregory Miles Heu of Mobile has been sU$pended from the practice of law in the State of Alabama for noncompliance with the 1998 Mandatory Continuing Legal Education requirements of the Alabama Slate Bar. ICLE 99-131 • On December 27, 1999, the Alabama Supreme Court affi rmed a 120.day SUSIICluioll for Birmingham attorney David Malcolm Tanner. Tanner was given the suspension following a hearing before the Disciplinary Boord, Panel V, on October 19, 1999. The hearing wa~ held to determine appropriate discipline in five ca$e~ pending against Thnner. The cases primarily illVolved willful neglect of client matters and the failure to cooperate ill Ule investigation of the underlying complaints themselves. Tanner allowed defaults to be entered on the merits of each case. The com· plaints were filed between 1997 and 1998, '!anner offered mitigating factors due to several pers(mal problem ~ within that time period. Prior discipline Wll.$ considered and restitution

courts of Alabama. [ASB Pd. No. 99-

0061 • Huntsville attorney Carter Alan Robln80n YI'''~ reinstllted to the Ilr..ctice of law in the State of Alabama by order of ]Janel IV of lhe Disciplinary Board, effective January 5, 2000. IRuie 20(a): ASB Pet. No, 99-071 • Jasper attorney Larry Edward Smith was reinstated to the practice of law in the State of Alabama by order of the Disciplinary Board of the Alabama State Bar effective October 22, 1999. [ASB Pet. No. 99-021 • The Supreme Court of Alabama entered an order reinstating Huntsville attorney David Eugene Worley to the practice of law in the. Stale of Alabama, effective November 17, 1999. This order WIlS ba~ed upon the decision of Panel II of the Disciplinar)' Board, lASH Pet. No, 98091

99·04J (AI. 99-4S(A). 99·49(AI. 99· 72(A), 99-80(A), 99-125(1l), 99134(13), ,md 98·337(A) before the Di~ciplinary 110llrd of the Alabama State Uar. • William Bartlett Tlylor, who~e whe rellbout~ arc unknown, must answer the Alabama S~at e Oar's for· mal disciplinary charges within 28 days of March 15,2000, or thereafter. the charges contained therein shall be deemed admitted and appropriate discipline shall be imposed all:ainst him in ASO Nos. 96-33I(A), 96-332(A), 96-374(A), 97·093(A) and 97-116(A) before the Di$ciplinary l3o.1Td of the Alabama State Bar. is a condition of reinstatement. (ASS No. 98·0S1(A), (/1. 01.1 • On December 27, 199~, the Alabama Supreme Court affirmed a 91-day susl)ension for Birmingham attorney Sean Edward McLaughlin. McLaughlin tendered a conditional guilty pleil which called for the imposition of the suspension in return for McL<l1,lghlin's guilty p!t:lI to all charAes in the three underlying cases. In one cas~, Mclaughlin was hired to repre5ent a client on DUI charges. The client had several prior DUI convictions. Laughlin attempted to get the client's ex-wife to pay the legal fees associ..ted with his representation of this client. The clienh ex-wife refused to pay the charges. 'thereafter, t-1cLaughlin wrote the client's elderly mother an inflammatory letter in hopes that shc would pay his fees. McLaughlin f11ed a notice of IL~ pimdell5 on property owned by the client's motiler, without legal basis of any kind. This notice interfered with an ..ltempt to sell the property. In a separate case, McLaughlin was hi ..ed to represent a foreign natural in an immigration matter and Wi15 paid a

retainer of $1,000. The client was ftlready in the United Stlltes but was eligible for "permanent r~ ident sta· tus." HcLaughlin failed to meet dead· lines imposed by the Immigration and naturali;:ation Service and failed to communicate with the client. At one point, Mct.aughlin continued a criti· clll hellrlng to II date beyond II statutorily Imposed delldHne. As a result. the client's permanent resident S13tus was procedurally denied. The dlent then hired another attorney to fighl depor. tation by the Immigration and Natura1i,.ation Service. In a third mat· ter, f.1ct.aughlin was representing a woman in a domestic maUer. At one point during the repreKntlition, McLaughlin eXpOsed himKlf to her. At other times, McLaughlin had tried to gel her to engage in $€Kulll activities. lASH No, 97.3ffi(A) , (11. al.1 • Effective Dfcembcr 8, 1999, attorney Pl ul R. Knighten of Marietta, Georgia hI\! been suspended from the practice of law in the State of Alabama for noncompliance with the 1998 Mandatory Continuinll l.egal Education requiremen15 of the Alabama State Bar.ICLE No. 99-461 • By order of the Disciplinary Boord, Panel [. t>10bile attorney Vader AI I)ennlnglon hM received athree·year susptnsion, effective January 1. 1992. Pennington was previously interimly suspended by the Disciplinary Commission of tile A[abama State nar while several disciplinary files ~re pending against him. Pennington entered a guilty plea to charges pend· ing against him In certain of these cases in exchange for a fixed suspen· sion of three years, effective January I. 1992. The cases were resolved in an effort to allow Pennington's petition for reinstatement to the practice of law to proceed consistent with lhe Alabama Rules ofDisciplinary Procedure. The records of the Disciplinary Conlmission reflected that some 25 discip1inllry files ~re pending agalnst l)ennington at the time he petitioned (or reinstatement. While the plea (!Xu Pennington'S suspension at three years, Pennington wlll still be required to undergo the rei nstatement proceM. IASB No. 89· 4 18(1I.al.1

•

Uy order of the Disciplinary Iloard of the Alabama State liM. Bemmer lawyer Richard Lany McClendon was suspended from the practice of law in the Stllte of Alabama for a period of 91 days with the imposition of the 91.day suspension 10 be suspended and held in abeyance pendlnll f.1cClendon's successful completion of a two·year probationary period. This discipline was imposed pursuant to McClendon's pleas of guilty in two separate maUers. [n one case McClendon pled l11.IillY to violating Rules 1.3, 1.4(a) and !.I6(d). Alabama Rules of Professional Collducl. In the .second case,

McClendon willfully neglected leRal maIlers entrusted to him by doing lillie work on the client's behalf. lie also fa iled or refused to promptly respond to reasonable requests for information (rom each client regard· ing their case. In one matter, McClendon failed to promptly deliver the client's file upon terminalion of the representation and the request of the client. lASS Nos. 98-09(M Rnd 99.193(A)1 • Birmingham attorney PhUi lp• Ruuell Thrver was $u5pended from the practice of law In the State of Alabama for a periOd of 45 days by order of the Disciplinary Board. effective November 16,1999. Thrver pled guilty to soliCiting professional employment from II prospective client with whom he had no familial or current or prior profes.sional rela· tionship. a violation of Rules 7.3 (b) and 8.4 (a), Alabama Rules of Professirmal Conduct. 'rlIrvtr was automatically reinstated \0 the prac· lice of IIIW effective December 31, 1999. IASB No. 97.2 18(A)1

•

Effective November 22, 1999, attor· ney David Garrtll llooper of Montgomery was suspended from the practice of law in the SlJte of Alabama for noncompliance with the 1998 Mandatory Continuing Legal t:ducation reQuiremen15 of the Alabama State Oar,jCLE 99-141 • Effective December 6,1999, attorney WIllIam CllYIon Wallace ofGuJ( Shores was suspended from the prac· lice of law ;n the State d Alabama for noncompliance with the 1998 Mandatory Continuing l.egal Education requirements of the Alaba.m:a State Bar. ICU; 99-311 • Effective December 6. 1999, attorney Joan Charlene MclAndon of Conway, Arkansas was suspended from the practice of law In the State of Alabama fo r noncompliance with the 1998 Mandatory Continuing Leglll Education requirements of the Alabama State Bar. (CLE 99.221 • Effective October 20, 1m. attorney Michael Norml n Mclnl)'l't of Birmingham was suspended from the practice of law in the SUIte of Alabama for noncompliance with the 1998 M:mdatory Continuing Legal 8ducation requirements of the All1bMlli Stale Bar. (CtE 99-2 1) • Effective October 26. 1999, Michael Norman Mcintyre was reinstated to the practice. of law by fuiA11ing his 1998 requirements.ICI.F. 99-2IJ • Effective October 18, 1999, attorney Michael Bray 1I0uston of "lobile wa.s suspended from the practice of [aw in the State of Alai>.lma for noncom· pliance with the 1998 Mandatory Continuing l..egal Educlllion requi re. ments of the Alab/lma State l1ar.

[eeE99·151

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• Effective October 26, 1999, attorney John A. IJlanton, 111 of Columbiana was suspended from the practice of law in the State of Alabama for noncompliance with the 1998 M<tI1datory Conllnuing ~gal EducOltion requirements of the Alabama State Btu, [eLE 99.3[ • Effective October 26, 1999, attorney nose j\hrle JOrlU of Birmingh/lrl\ was suspended from the practice of law in Ihe Slate o( Alabama (or non· compliance with the 1998 r.1/1ndalory Continuing L.egal l~duca ti on require· ment~ of the Alabama Stall: Bar, IC I.~: 99·18) • Effective October 26, 1999, attorney John Cregory Wolln, kl, practicing in Columbus, Ceorgia, was suspended from the pr~ctice of law in the State of Alabama for noncomplillnce with the 1998 Mandatory Continuing ~gal Education requirements of the Alabilma State Bar. ICLE 99.33! • On November 17, 1999, the Disciplinary Commission of the Alabama State Bar Interimly suspended Birmingham attorney Dennl. Michael 8nmlt on the grounds thai his conduct was causing or was likely to cause immediate and serious injury to a client or to the publh;:. The Disciplinary Commission found thlll Barrell had misappropriated a substantial sum of client money from the trust account of th~ law firm of Barrett &: Poore. I'.C, Formal charges were filed by the Alabama State Bar's Office of the General Counsel on December 22,1999. IRuie 20(01), ASB Pet. No. 99.oo8! • I3<lldwin County uttorney WUllam Clll,Ylon Wallace was suspended from Ihe practice of law in the St.lte of AI"bam" for a period of lwo years. eff~ctive November 18, 1999, by order of the Alab.lmll Supreme Court. The Alabama Supreme Court entered its order bascd upon the deci5ion of the Disciplillary Boord, Panel I\/, of the Alabama State BIlr. Adefault judgment was entered against Wallace finding him guilty of violating I~ules 1.1. 1.3, 1.4(a) and 8.I(b), Alabama Rilles 01 l'+ofcssioll(ll Conduct. Wallace was relained to represent a client in an uncontested divorcc and paid 5525 for his S€r'\Iicu. TIierclLner, Wall;tce did lit· 130 MarIC H .DOG

lie work in the matter. failed or refused to communicate with the client reg.lYding the malter and eventually abandoned his client and the practice of 11.Iw. Durin" the cO~Jrse of Ihe distiplinary proceedings, Wallace (ailed or refused to rcspQnd to reque5t~ fOr information (rom U\COflice of the Ceneral Counsel and the Baldwin County Bar Association local grievance committee.IASB No. 99.21(1\)! • On OctoDer 21. 1999. Panel I of the Disciplinary Boord imposed II 45·day suspension on Birmingham attorney Chuck Hunter, The suspension is to be held in abeyance while Hunter ser'\les a one-year probationary term with special cOnditions. Hunter was found guilty o( a violation of Rul ~ 8. l(a), Rule B.4(c) and Rule B,4(g) of the Ru/~s of Prof~ssi(JTI(/1 C(JTIdllct. The Disciplinary Board found that Hunter had submitted /I false affi· davit from one of his clients. The affidavit was sent to the bar, unsigned. in connection with a grievance Hunter had filed againsl anoth· er attorney. The affidavit was never submitted with a signature because the client refu~ed to ~ign it due to the purported untrue $latemCn( contaIned therein. lASH No. 9$.250{A)] Public Reprlm.nds

• On December 3,1999, Texas \lttorney Rolando Garcia, who was admitted JlrQ hac /lice in the Circuit Court of Mobile County, was puhlicly reprimanded for engaging in improper trial publicity, engllging in conduct that adversely affects the administration o( justice nnd engaging in conduct that adversely renects on his fitness to practice lllW, violalions o( Rules 3.6(a}, 8.4(a)(d) and (g). Alubama RI,IIl/j of Professiollul Conduct. C\lrcia was reprimanded for comments made during a pre» confer· ence, In which he WII$ II. partieip.mt, which improperly criticized the rulings /IJld questioned the integrity of the circuit judge presiding in the case in which he appeared as counsel. [Pro hac vice admission ! • On De<:ember 3,1999. Birmingham attorney Chuck Ilunter received a pub. lic reprimand without general publica· tion. The reprimand was the result o( a conditional guilty plea tendered by

Hunter for having viohted nule 1.5(c) of the Rules of Professional Conduct. Hunter represented a client in a dog bite case. The client terminated litlnter one week before trial and sought olher counsel. The client's case scWed for $7,500 and Hunter asserted alien for $2,250. TI\e trial CQurt reduced Hunter's lien to $750 and based its decision on the (bet that Hunter did not have a written contract agreement in a contingent fee C.1se as required by Rule 1.5(c), A,R.J'.C. The court also noted, in reducing the claimed fees that Hunler's 5er'\lices "...were of no substdntial vall,Je to the plaintiff." IASB No. 98·249(A)] • On December 3. 1999. Montgomery attorney Charlu Nichola, Parnell , III received a public reprimand with· out gener ... l publicllti()rl fOr engaging in a busincts transaction or acquiring an ownership, possessory, security or other pecuniary intertst adverse to a client in violation o( Rule 1.8(a), Alabama Rules of Professional Comluct. Parnell represented a lawyer clienl in bankruptcy and other related proceedings. Ouring the coune of these proceedinJls, Parnell ncgotiated with several of his client's creditors ~nd obtained their ~!:Ir~e ment to accept deeds in lieu of (ore· closure in full satisfaction or eert/lirl debls owing on numerous parcels of real estate in Lee County. These transactions were structured. in part. on the advice o( the client's accoun· tant and were intended to avoid adverse tax consequences which would have resulted from the sale of these properties and would have had an adverse impact on the client's bankruptcy proceedings. The bankruptcy court approved th ~se tran~ac· lions on motion of Parnell's client. I~ecords indicate thalshortly aner Ihe bankruptcy court approved these transactions, Parnell and his client's accountant incorporated an entity which was solely owned by their chilo dren and for which Parnell and his client's accountant were the sole directors and officers. DurinJl the fl.;xt year this corporation acq~Jire d several PIlrcels of real Htate that Parnell's cHent had contemporaneously surrendered to creditors in lieu of foreclosure. This corporation also

purchased another parcel o( property at a foreclosure sale, having previous'

Iy accepted a third mOrtgage on this property (rom Parnell's client. In addition, Parndl's client directly con· veyed separate parcels of real eslllte to Parnell. to the accountant and to the corporation. It appeared that the lawyer client was aware of these tranMlctions and, by his p.1rticipation, apprOVfd of them. However, Parnell's relationship with the corporation tl\.1t ultimately purchased the properties was not disclosed to the bankruptcy court in the motion for apprCMII of these transactions and there was 00 evidence of strIct compliance with the provisions of Rule 1.8(a), A. R. /~C. II. was noted that the (act that Parnell's client was a lawyer did not insulate him from a (inding of guilty in Rule 1.8(a), but was cQnsidered as substantial mitigating evidence when imposing discipline in this Clise. [ASB No. 96·J09(A)1 • Bay Minette attomey Habib Yazdi received a public reprimllnd with general publication from lhe Disciplinary Board of the Alabama State Bar on December J, 1999. Yazdi was appointed by the Circuit COllrt of Baldwin County to repre· sent an indigent criminal defendant. After concl usion of the trial. but while he was still attorney of record. the client's mother asked Yazdi to provide her son with his case fil e and courl document!. Yatdi told the client's molher, whOSt only income is a disability check. that she would have to pay him $200 in order for him to take the fil es from his orrice in Daphne to her son in the Baldwin Count)' Jail and consult with him. He eventually collected $50 from her. The Di!ll;lplinary Board determined this conduct constituted a violation of I~ule 1.5(f) .... hith prohibits an attorney appointed to represent an Indigent criminal defendant from accepting any fee from the defendant or anyone on the defendant's Dehalr without prior lI{lproval of the appointing court and Rule 8.4(d) which prohibits an attorney from engaging in conduct that is prej udi. cial to the administration of justice. 1ASB No. 98·273(Al1

DI ••blllty • The Supreme Court of Alabam;, has adopted the dedsion of the DiKiplinary Board of the Alabama State Bar transferrIng Montgomery attorney Cllyin Mercer Whlttnll, Jr. to disability inacti\e status effective November 5, 1999. [Hule 27(c): ASB Pet. No. 99·071 • l-l oo~ r attorney WOllam Kevin l)elCroliO was Iramferred to disability in.'\Ctive $tatus pUl'5uant to Rule 27(c).

Alabama Rufi!S ofDisciplilwfl/

Prrxedure. effective: Navtmber 9. 1999.IRule 27(c); ASB I'~ t. No. 99·06] • The Supreme Court of Alabama has adopted the decision of the DiSCiplinary Board of the Alabama State Bar transferring Anni5ton attorney Dlnle! Eugene MOI'1'18 to disability inactive status c((cct!ve December 3. 1999. [Rule 27(c); ASS Pet. No. 99·021 •

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... provld!!s an o verview of the mediation process in question-and-answer form Acr ylic Brochure Stand $5 .00 each Qty. _ $ _ _ _ __ ", individual stand imp rinted with individual, firm or bar association name {or usc al distri bution I>oints One stond per brochure is recommended.

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Shipping & Handling $ 5.00 TOTAL $ Please remit CNECK OR MONEY ORDER M!\ DE PAYABLE TO TI IE ALAHAMA STATE BAR for the amount listed on the TOTAL line and forward it with thi s order form to: Shallnon Ell iott, Commlll1iC{l(i ons Dept" Alab""'{l State 6.1r, p,O, Box 671, Montgomery, AL 36101. (33 4) 269·1515

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RECENT DECISIONS By David 8. Ilyme, Jr. and Wilbur C. Silberman

United States Court of Appeals for the Eleventh Circuit Mon.V" I.und.rlng-£I.v.nth Circuit'. prlm.r United Slul(fs D. MojQr!l, Cue No.

97-2803 _ F.3d _ (November 19. 1999). ~'ederal criminal practitioners are encountering, on a fa r more fre· quent basis, indictments thai allege i"tllr alia money laundering. The Eleventh Circuit. in United Stutes u. Majors . clarified the substanti~ differ· ence between the promotion prong of money laundering, section 1956(aj(I)(A)(i), and the concealment prong. section 1956(a)( 1)(11)(1), The Mqjors' opinion Is ' must reading" for every lawyer engag~d in federal criminal practice, DtI~ ••• ~, ....

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StrOrt the primary offen5e or mooey laundering clln occur, the undcrlyinA criminal activity must be comp1c.le, gener/lling proceeds to be laundered. !XwUn;ted Stales u. Christo, 129 F:3d 578, 580 (lllh Cir. 1997), Section 1956(a)(J)(A)(i) has been referred to as the promotion prong of the moneytOlundering $lal(lle. See, United Stoles /I, Cttfderon, 169 F.3d 718, 720 (II th Cir. 1999). For sentencing purposes, a defendant convicted under the promo· tion prong receives a bue offense level of 23, USSC section 2S I,1, while one convicted under the concoolmt'lll prong, section 1956(a)U)(B){i), rw:i~s a base offense level of 20. Id. A grenttr punishment is applied to thou de(en· dants who encourage or (acilitllte the commission for other crimes, USSG section 2S 1.1 Commentary, The Eleventh CirClJit, in Mqjors, criticaliy notes th:.t money laundering is not a continuing offense. United Slalcs u. Kramer, 73 F.3d 1067, 1072 (11th Cir, 1996), The slalulory language and legislative history indicate that each trans· action or transfer of money constltutu a separate offense, Thu!, a violation of the concealment provision must "(ollow In tlme~ the completion of the underly. ing transaction ;u an aclivity designed to conceal or disguise. the origin of Ihe proceeds, The concealment prong was designed to punish defendants who take the additional step of attempting to legitimize their procetds so thaI observers think their ll'lOney is derived from legal enterprises, The panel opinion in Mqjors also adopl$ the Tenth Circuit's rationale in Carcia-Emanue/. 14 ~',3d 1469, 1476

(10th Cir. 1994). In Garcia-Emanuel, the Tenth Circuit attempted 10 formulate certain principles governing section 1956(a)(1HIlHn appeals, a "difficult task of separating money laundering, which is punishable by up to lwtnty years in prison, from mere money spending, which is legal." Id. 011 1473. "Oecause lhe sUalutt is :aimed at lranycUons that are engaged in for the purpose of concealing /i!seu, merely engaging in II transaction with moncy wh~e nature has been concealed through other means is not in itself a crime, .. If transactions are engaged in (or present personal bene(il, and not to creale the appearance of legitimate wealth, they do not violate the money laundering slatute. l d. ilt 1469. Ultimately, the Tenth Circuit concluded that section 1956(a)( 1)(11)(i) is a conculment statlJte, not a spending statute. Arelated principle is lhal the evidence o( concealment must be substantial. The Eleventh Circuit. in Mq;ors. also adopted the rationale of lhe rifth Circuit in United Siaies u. l){Jbbs, 6J ~~3d a1391. In Dobbs, the rifth Ci rcuit reversed a money·laundering conviction because the transactions wert as open and notorious as typical bank transaclions ClIn be, The ClIUle rancher in Dobbs had been chargtd with money laundering when he deposited illegal callie sale proceeds in his wife's bank accounl and used those funds to pay ordinary household and ranch expenses. Ultimalely. the activity that section 1956(a)( I)(8)(1). the concealment provision, seeks to prevent is the Injection of illegal proceeds into the strum of com· merGe while obfuscating their source. M

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Recent Bankruptcy Decisions and Rule Changes Eleventh Circuit holda that

debtor'. un,.cured truat fund recovery .,.rullty tax not dl.ch.r,••bl. In 11! Costa.fl Gust, 197 F.3d 11 12 (lith Clr. Dec. 9, 1999); 84 A.F.r.R. 2d 99.7208, 1999 WI. 1127405. Under the IRe. debtor was a responsible parly of his corporation, Con-Fleet Enterprises, Inc" which owed the Internal IlcvcnllCService trusl fund taxes. The ms as5cssed a penalty of S18,41 3.85 and interest, which it followed with a tax lien notice on Augu.~t 16, 1989. ~'ive ~ars later in the Southern l)i5trid of Georgia. debtor filed II chapler 7, listing $19,821 in personal property which he claimed exempt. On April 13, 1995, the IRS filed II corrected tax lien notice which extended lhe lien through June 24, 1999. 1Wo years later. deblor filed a chapler 13, listing personal propert)' 0( $51,42(), of which he claimed $47.320 exempt The II(S filed a claim for $52,6 12,26 which coruisted of $50,255.83 secured, and priority unsecured of 52,356,43. The secured claim included the trust fund ptnalty claim o( $18.4 13.85 plus accrued interest of $31.84 1.98, TIle debtor objected to the ms clr.im on the ground thM section 507(a)(8) only elcept! (rom discharge unsecured claims, Debtor appealed (rom the bankruptcy court's adverse ruUnl!, District Court Chief Judge Uowen, a (ormer bankruptcy Judge, affirmed with

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opinion adopted by the Eleventh Circuit, The debtor had contended thai because section 507(a)(8) gives priority to "allowed unsecured claims o( govern· mental units," and section 523 provides that no discharge is granted for a $tC. tion 507(a)(8) lax clllim, it foll(IWS that the exception to disch3rge applles only to unsecured la)I dellts, The argument W3S bottomed upon the Tenth Circuit case o( United States 11, Victor (10th Cir, 1997) but Judge Bowen rejected it, stat· ing that the Vic/or case was erroneously decided, He noted that the Tenth Circuit in the VictOf case di~greed with Iii re Gurwlch, 794 1':2d 584 (11 th Cir, 1986). Judge !lowen, in turn, approved the opinion of the bankruptcy judge, who SIIld that the plaIn meaning o( the leglsilltion WaJ dear, and he quoted the lower court: "There is no ambiguity in f 523(a)( J HA), Seclion 523(a)( J)(A) addresses 'debt' arising (rom a 'tax', 'or the kind' specified in f 507(a)(8)." Judge Bowen, in concluding, cited other cases and, in particular, In re 1.aluIiPl}(!, 13 D.H. 526 (Ilankr, I).VI. 1981) which noted, ~ It is illogical that CongTeS5 intended to make unsecured claims non-disehMgeable while rendering a claim dischargeable i( the government has sought to enforce payment by creating a lien.~ Comment: It is certain that the Eleventh Circuit is not going to change its view that it makes no difference i( the !lUI claim is sec\.red or unsecured. If it is a trust fund liahility. it is not dis· ch;ugellble. :In

Eleventh Clreult •• YI no p.y. ment c.n ~ m.de from ch.po t.r 7 ••t.t. to p.y d.btor'. .ttornev In rtl American S((!ell'rociucls, /I1C" _ f3d ~ 35 BCD § 86, I' 394, 1999 WI. 1186416 (llth. Cir.Oec. 15, 1999. In a very terse opinion of Judge ChMles It Wilson, the Eleventh Circuit held that the 1994 CongreS5 IImended Section 330 to delete the provisions allowing (or payment (rom the bankruptcy estate to the attorney (or debtor, In this chapter 7 case, which WaJ converted (rom a chapter II, debtor's attomeys requested $30,141.87, of which $19,600 had bten paid as a pre·petition retainer. The bankrupt!;)' court allowed SI0,541.87 (the difference which WaJ unpaid), but

reserved ruling aJ to whether it should come (rom the estate or the initial retainer. l.ater, in reconsidering, the bankruptcy court vacated the original order, and held that nothing could be paid (rom the estate. An appeal culminated in the Eleventh Circuil. which held thllt the plain reading o( the legis. lation did not permit payment from the estate to debtor's attorney. The Court rejected the attorney's contention that as Congress alJowed such payment in a chapter 12 or 13, it must have intended the ~me in a (hapter 7 or 11. In adopting this view, the ~: Ieventh Circuit followed tht Fifth Circuit ruling in In re Pro Snu.r Distributors, 157 F.3d 414, 425, lind dlf(ered with the Ninth Circuit In In rtl Century Cleaning Service, 195 ~~3d 1053 (9th Clr. Nov. 18, 1999), which had written that the failure of Congress to include chapters 7 and II IIUorneys (or the debtor in Ihe list o( compen~bl e per50ns. was "an unintended slip of the pen ..... Comment: J assume the attorneys were allowcd to keep their pre-petition fees, although the Court could have said these fees were in trust. lnd lhus part of the estate. III the matter now stands in the Eleventh Circuit. do not look (or additional (eu (rom the estate once a chapter 7 or I J case is filed . To change this will require action from Congress or the U.S. Supreme Court. Rul. Chlln, •• On April 26, 1999, the U.S. Supreme Court promulgated amendment! to the BlIllkruptcy Ilulu. [n the IIbsence of any changes by Congress, these amendments became effective December I, 1999, It had been my intent to review these chllnges in depth: however, it became Dpparent there would be too much detail for this column. Thu5, r will attempt a very broad b ru~h with the admonition that one should refer to II book or service showing the before-andafter changes, The substance o( the changes on some routine motions are to reduce the number o( parties upon whom notice is obligatory and to allow losing parties additional time to obtain a st"y pending an appeal. For example, the changes to Rule 1017 require only that the deb:or and the cast trustee be given notice of a motion to dIsmiss as flied by the U.S.

Rule 2oo3(d) concerns the mechanics of reporting when there is II disputed election. Rule 3020(e) "..as added to provide for a ten-day stay after an order of confirmation of a plan, unless otherwise directed by lhe court. I~ule 3021. concerning distributions, adopts the same ten-da)' st1\y mentioned in Rule 3020(e). These amendments were made 11\ order to allow advern parties the opportunity to request a stay pending an appeal. Rule 4004(a) makes (eTtain thai II complaint objecting to discharge must be filed 60 days after the fiNt date let for lhe creditoN' meeting, regardless of whether lhe meeting lakes place. Rule 4007(c) was amended exactly lhe &arne in filing a complaint to determine the discharlleabilily of any debt. l~ule 6004(11), in order to allow time for a party to request a stay pending appeal, provides for Iln) lI.utomatic stay

for len days of an order authorizing the uu, sale or Itue of propert). Likewise, 6006(d) allows the ten.day window on ordeN authorizing the auignment of an executory contract or leau of properly, except for cash collateral. Rule 7001 now provides that when injunctive or other equitable relief is part of a confi rmed plan, it is unnecesMIry to fill! an ~dversary proceeding for the same relief. The last sentence of amended Rule 7004(eJ exceplJ service of process in /I foreign country so thai the ten.day time limit after issuance does not apply. The amendment to Rule 7062 deletes c<>nte$ted proceeding! from the slay of proceedings to enforce the order. The Advisory Committee comment slates that this change is because Hule 9014 was amended to make the rule Inapplicable in contested proceedin~ unless authorized by the court. •

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Trustee or flankruplcy Administrator for failure of the d~btor to furnish information such as schedules. lists of creditors. etc. Hule 1017applieJ gtnerally to dismissal. conversion ~ and suspensions. The change reduces the number of pcrsons to be notified in such instances unless the courl olherwise directs. Additionally. in subdivision (f) is a l)rOvlsiol1 that a moti(Jn to dismiss or abstain, tIlcept in certain enumerated cases. will be 11 contested proceeding under Rule 90 14. Rule 1019 clarifies or describes procedures to be followed when a case is converted to chapter 7 from any of the other chapters. Subdivision 6 of Rule 1019 requires that all administ ration expenses incurred before lhe conversion of it chilptcr II , 12 or 13 case to chapter 7 be milde by filing a request under § 503(a), rather than filing II proof of claim under I 503(11).

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CLASSIFIED N OTICES

Flatss: Members: Two froe IIslings of 50 words or less per bar member per calendar year EXCEPT lor ·posltlon wanted" or ~posltlon offered" IIstlngs-S35 per Insertion 01 50 words or less, $.50 per additional word; Nonmembers: $35 per insertion of 50 words or less, $.50 per additional word. Classified copy and payment must be received according to the following publishing schedule; March 2000 issue---deadllne January 15, 2000; May 2000 Issue---deadline March 15, 2000. No deadline extensions will be made.

Send classltied copy and payment, payable to The Alabama Lawyer, 10: Alabama Lawyer ClassUleds. c/o Shannon Elliott, P.O. Box 4156, Montgomery, Alabama 36101. 900. MOf'ltoomery. 36104 . Phof'le (334) 264·6466. e·mall: MOR0760a.ol.com.

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Katherine S. Weed p.o. Box 590104 Bi rmi ngham, AL 35259

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.U MARC H

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www./ega/c/ub.comlormora Inlo. ATTORNEY POSITIONS: Many 01 the best IJrms In Birmingham, Mobile, Huntsvllle. Atlanta, Nashville, ane! other cilies aerosa the Soulh are seeking good lawyers with experience In the fol· lowing araas: corporala, Iltlgallon, real estata. taK. Intallactual property, ERISA, labor. and amploymanl. Associate and patlnar lovel positions ora available. All inquiries are strictly conllOOnllal. PlaaSB contact Richard G. Brock, uq. at ~m tech, Inc. Phone (205) 87 1·3223. Fax (205) 871 ·3224. E·maM: rlch8rdOacymltJCh.com. • ATTORNEY POSITIONS: Three·aUor· ney IIrm &8Bk& allorney lor corporate! aSilito ane! bu&lna~8 planning pracllce. Will consldar new or roeant graduale with LLM In taxation . Doug Friedman, 200Q·A SouthBridge Parkway, Sulta 210, Birmingham, 35209. Resumes only Irom new or recent graduates. plaase. ATTORNEY JOBS: The nation's '1 /Ob-huntlng bulletin lor allor~ Is now onllnB at AllomayJobsOnlirnt.com. Subscribe onllna or call us: 1·800·296· 9611. Extens!VB Web slta prasents thousands 01 attomey and law·ralatad jobs nationwide and abroad at all levels 01 experlonce In publiC (laderal. state and local) and prl~ale SllCtOrs. Sponsored by Welt Group. ATTORNEY POSITIONS: Established, growing law IIrm .....ith COfporate client base $BBItlng attomaya with three to ,IK years' experl&ncG in litigation or cor· porate IlIIw. Good bBnBlits, excellent Iong·term carOBr opportunity. Confidential Inqulrie. should be direct· ed to Hiring Managor, P.O. BoK 630, Montgomery, 36101 . ATTORNEY POSITION : Auburn law IIrm seeking auorrays. Two years'

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FOR RENT SOUTHSIDE OFFICE: FIve Points• South&ide lAw oIfiee avalable lor 8010 aIlOtnBy(s), 1117 22nd Stroot, South. Birmingham. From S42510r a window office. "VIrtual" ol!ica 01' ·corporate Image" also avollllb!e lor lhose needing limited con/erence room time. RaceptIonlstond other ardllary aarvlces provided. Cell Tom PIoutI, esq., at (205) 939-0000.

LAW OFFICE: Liberty Square, 7 East 13th Street, Annlslon. otIlce available lor solo attorney. From $400 lor window office: socrelary and othOr ancillary services available. (256) 238·6200.

FOR SALE LAW BOOKS: WlIIam S. HeIn Companv-Moto than 70 years later, still your '1 aouroe lor buylngf88ll1ng low books. Fifty percent- 70 peroenl SIIIYlngs on major sets. lntomat\onallaw, tora/anti· quarian Law. Appraisal services avail, able. Cell I ·800-496-4346. Fax: 7 I 6·883· 5595. Webslta: ~. wsh9Jn.com1Js8d. books. •

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