Lawyer 3 89 web by Alabama State Bar Association

MONEY MAGAZINE. PALL 1988

That's right. According to Money Magazine, Veribanc and Bank Rate Monitor , Union Bank heads the list as one of the safest, strongest banks in Alabama, and it is ranked among the top 175 "superstar" banks in the nation, based on assets and services. Union Bank. Were strong Were safe. Bank with the independent bank that lives where you do. Henry A. Leslie - President & CEO

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UNION BANK & TRUSTeo ., MONTGOMERY, ALABAMA/MEMBER FDIC

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A thoroughly up.dRUId guld~ to criminfll ttial pract.ice including pre-trial practice wit.h attention given to federel conetitutionellaw.

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The new Second Ed ition is responsive to the acute need of the practitioner to keep abreast of

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recent laws and C88eB AI well aa Federal Income

Tax considerat.ion&. New form, ",dded plue elilting forme altered to

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improvementA.

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The new Second Edition relain, the c htuacter of the first edition in ita emphaai8, and, due to the advent. of tort (o rml, treatl the con~titution81ity of 'tatutellim iting damages.

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The AI/lbllmo1 Lawyer

1-800-241-3561 88·H8

ALABAMA TORTS CASE FINDER

PUBLISHERS OF THE CODE OF ALABAMA

By Allen Wind sor Howell Alabama Torts Case Ander gives you quick access 10 th e cases that will help you win In COUf\. This portable dosktop reference con tains citations [0 all loading Alabama cases Involving lort Issues arranged under 39510pic headings. Following each clle, the

decision Is paraphrased, summarized or occasionally quoted. This handy book also Inc ludes summaries 01 relevant Alabama court rulos and staMes, Including tho "Iort ro'orm" leglslalloo 01 1987 Oesigned. arranged and Indexed wnh tho busy

praclilloner In mind , Alabama Tort. Case Ander is an excellont 1001 lor pretrial prepara1ion as well as a quick referenca In the cOu flroom You Will not lind a mol e

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Or cal tal-free 1-800-446-3410 We accept Visa and MasterCard

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c 1968. The Mlchlo Complmy

The Alabama

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Pos tma ster: Send ~ddress changcs to The A labama lawyer, P.O, Box 41 56, Mon tgomery, Al36 10 1.

Tlw AI/lbama Law}'Cr

legislative Proposal for Alabama by James P. Alexander and John W.

Hargrove .......... . ..... 70 D rug usage in the work I)tace hilS SlhJrked legisliltive action in 5<lnaioni'1S d rug·te51ing prQCI.'(Iures.

Interference wit h Business Rela· tions: the Unified Tort Since Cross v. Lowder Realty by Andrew P. Ca mpbell ., ", ...... , .. " 86 Since Ihe Alabama Supreme COUlt mergoo the torlS of interference wi th con tract and intentional interference with bu siness re lations into a single tort concept, there has been a marked increase In 1i11g.1tion in thiS

area.

INSIDE TH IS ISSUE I'resldent's Page , ...... . f~(:(utlv(l Director's RcPO, t Ai>Qut Mo)rnber ~, Among Firms .. Young l awyers' Sectton lC iding the Circuits .. CLE Oppo.-Iunilies .. Building Atab<anl.1·s CouT1 hou!ots Recent Decisions .

61 68

Opinions of Ihe Ge'lerat Courl sol Wimer 1988 Admlnces . Legtslalive WralrU p . 8ar 8rtefs MCLf News

84 90

MemoTlat, Disciplinary RepM

106 109

Ctassifled Notices

III

61 64

" " 10.

100

President's Page

HUCKA BV

last chance for crcation of captive insurance cOmpa ny

t Is not an D'lCrSl.1lCmcm (0 say that

we Me appro., chlng

a cri sis with the bar's captive Insurance company. At the l ime of this w ri!1ng we are $600,000 short of the 2.5 million dollJr~ required for capitalization of the At· torneys Insumnce Mutual of Alabama, Inc. (AIM), the company orl!<mI 1.~>d 10 offer liability CQ\If;lr<lge for AlilbaOlil

lawyers. To rai se the balimce of capital needed [he com1).1rly l11uSI S£!II an additional 5S0 subSCriptions OIl the CUfrent unit CO\l of 51,500. If the COmll..1ny has not b<!cn successfully capitalized in the very ncar future, I am goln8 to recommend tha t the effort be dlsco!\Unued, If such should occur, I would prcdicllhat it will be 11 very long time before the bar again will undert"ke such" project. tf the bilf wants il Cilptive comp;;my, this likely will be its only chilnce in the foresecilble future. The bar did not under1<lke thi ~ effort without very c<Heful study. As you recall, a survey was conducted, and the re(\uisitc number of lawyers rcspondL>d th atthL'Y vvould purchar.c subscrlptlollSfor capitalization. There has been 110 group of lawyers who has given any greater service to the bar in terms of time i1nd effort on thi s project than the

Insurance Committee, the bOilrd of dirt..>cton. of the compa!'ly atld the bar commi ssioners. tt 'HOuld 00 tl shame 10 see these efforts go to wa ste. Twenty-five bars across the nation are nCM' benefitting from sllccessful CJptive insurance comt>Jnies. When these companies were est"blished, the availabilITy of coverage usuilily increased and the cost usulJlly decreased. Even for attorneys who might desire to obtilin C()'.ICr~ge from CMrie l'S otlwr than the captive, the imprO\l(!ments in the gCIlCoral markCt place should blure 10 the bcrlcfit of all lawyers. Support of AIM therefore can be justified, L"Yen If arl attorney Is rl O\ Irlterestcd In the CQ'lCr(lge. I hope you will not let thi s opportuni ty slip from our hands. It is an Investment that I believe will insure the ,wallilbility of reilsonilbie !iilbility coverilge for Alilbilma l<!Wyers in the (uture. There is still credit ;wailable (or finan· cin g $1,250 of the subscription cos ts. Plellse call the stale bar head<luarters if you ne«l another su!mription p..lckage rmd application. Reggie l'lamner or Keith Normiln can arlswer ally qu(>stlorl you lI\ay hall(! about the COrllpMy. It Is !im(> (or action. Lc!'s no! "Ialk" or "consid(>r" this to dcath. •

March 1989

Executive Director's

Report

We are bursting at the seams! ny visitor to Slale bar headQuar. ters quickly fc.1lizes Ih31 our fa dlltles no longer Ciln (lCCOlllmo-

date our association's needs. We arc literally bursting ,11 the seilms. We have lost our " visi ting l,lwyer'$ of.

flee" to The AlabaMa Lawyer, The pl"csi·

dent's office Is l'IOwour computer operations cenlC(. The library Is a work station for two employees. and, thus, we have givcn up a small conference room which

was used by lawyers needing to wkc depositions in Montgomery. The secretarial stations now serve two secretilriC5 instclld of the one for whi ch thcy were origlnaUy planned. Thl'! large meeting room whi ch was uied for bar exam ad· mi nistration and other large Il1CClings

now serves as a Beneral purpose work area, and file cabinets line onc wall.

Inc

Much of Ofigina! beauty of our buildIng has given way to practical space utilization. The Center for Professional Respon sibility has be<!n modWed reccl1Ily to accommod mc the gerleral courlscI, his thr ....e assist.lrlts mid the (our support pcrsonnelln that office. The hearing room. of necessity, has been converted to offi ce space, and the diKiplinary hearings ag.. ln are K hedulcd in the headqvarters large assembly room which, as stated carller, serves M a ecneral purpose work area most of the time. We also ren t storage space at a nearby record Storage war ....hOuS(l. UnforlJnately, we have to rctrieve many of these records and arc rC(tulred to go to the warehou se almost dally.

The Alabama Lawy<>f

Twenty years ago the state bilr staff Con slstL,(i of two lawyers, two secretaries afld a Ilrinter. We al so had approxl matoIy 2,300 merllbcrs. Today we h,we 8,900 members and a sta ff of 20 full-time employees. We also use three Pllft-lime cleri c.l! assistants. tn Ihe last 20 years we have brought the publication of The A/lIb,lma Lawyer In-house. We now administer a lawyer referra l service, iI client ~urity fund and a marldatory con tinuing legal education program. We SUPllOrt 13 sections ilnd 43 commlltees. The number of bar appllc;lI1ts ha~ Increased ten-fold . The bar commission itself h .. s Iflcreased 30 percen t in total membership. We also st.lff the Disciplinary Commi ssion ;lnd five disciplinary boards, in addition to the board of bar examim!rs and three character and fit · ness commltt~. Our bar staff Is one of the smallest in the natloo that serves a bar with respon· slbillty for the 101011 licensing and regulatory process. The'e are only thrcc other stilte bars performing all o( the fu nctions which we do. Those bars arc o( compa rilbl ~ size, yet their stilffs afe mo re than twice as large. In most juriSdictions, bar admissions and professional responsibility are Independent entities wi th their own facilities and §taffs. Why am t telling you thlsl l want to inform you o( plans to con struct a subslanti al addition to bar headquarters on Dexter Avenue. During the administration of Presiden t Walter Byars, the bilr r .... ceivt>d n dced to the prOllCrty d ir(.'Ctly

HAMNE R

behind our present building. The Board of Tru stees of the Alabam a Sta te Bar Foundati on, during the administration of President/im North, iluthorized the sign. Ing of a con tract with the architectural fi rm of Cole and 1-liII to deslHn the addi· lion (Mr. Hill tJesignt.>d the presen t building In the early 1960sl. A Facilities Commlttcc under the chairmanship of former President Bill Hairston was appoin ted b)' President Huckaby to stud y the needs and review preliminary plans with the goal of Irlpling the work space of the present build· Ing and, at the same time, lI'ovide for future growth. Thilt comml twe has 011re,KJ y met and toured scverlll work ilreM, as well as reviewed 1>lans of fcocently

~ .~ ~, Whorl witnC$lo(/S, defendants, beneOclaries. Insureds, policy holden., debt()n;, h~ve IllOY«I ~nd left no for'V4rdlng add~t. W(j t~k them down on a world-w ide sale. A nd If wadon', nnd your person,

you don't ~~ Glob.:ll ~ ~Ic: charge for a t r"OlU whe!1 Lh6 IMt kl'lOwn addnm Is three ytan old or less Is $180,00. CaII'Of' more Information or

start " tra«I today. t·800· 6n·61441b11 ft'ee to

Al a$ka & Hawa II call 1-800·"'43-6144 9a.m.-1:10 p.m. EST 61,m.~ ~ :)O

p.m. PST

G..:

conslrl,lclL>d bllr cel'lters In other jurisdic. tions. The new " ddition and furnj~hjn85 will co St approximately $3 million. II is con-

Icmplaled thaI

th~

current Center for Pro-

fcssional R(!Sponslbility locallKl on Perry Street will be sold \0 augment and substantiate fundrol sinS c(for'tS required to

raise construction monies. The sl<lte bar Is a tenanl or the slate oor foundmion, and the rent<1lln come will be used to retire a portion of the constru ction debt. It should be noted tha t our present facilities were debt-iree when they WI)(C firsT occupied in 1964. The bar reqljires this much·nlX'ded space. MoS! of us have enloyed Ihe bene. fi ts of those far·sigh:cd oormembers who filised the fund s to construct our present facility. The late Sam Pipes and John B. SCOII, Sr., along with former presidents I. Ed Thornton and Frank Tipler and a host of others, have provided for t h i~ cur·

l'CI't gClrcr(ltion of lowyers. We can do no less for those who wil l practice In Ihe next century, We will publish plilJlS for the new ad· dition when they i1re finaliloo. I invite aU of yOu who all! familiar wi th Ol.lr present facility to make sugg(!Stions fOf the inclusion of needed features in the planned addition. One primary goal Is to make the Imr center an att ractiYe and ser· vlceable work sp.1ce for our members when they are in Monlgomery. M,my of our neighboring bilrs h(IVC moved 10 new facili ties or constructed nCW bar centers In recenl years. W hile ours was one of the first stilte bilrS to hM Its ovm building when II was con· structed, we now must move ahead to mectlhe profession's needs of the fu ture. I hope thilt yOu andlor your firms w ill consider m;)king a pledge to help with the undert<lking when yOu <Ire called UJXln ill the noT tOO disrnnl future. •

,-~ '::::::"'--"" 1I'Ie." ~

Notice Is given herewith pursuant to the Alilbanl<l SIMe Bar Rules Covern;ns Election of PfflSidenl-t:Icr;1 ,"m d Commis· s;orwrs fOf 1989.

PresidenH!lecl The Alabama State 6ar will elccl a l)reside01-elecl in 1989 to <lSSUllle the presidcn ~ y of the bar in July t 990. Any candidate must be a member In good standing on March 1, 1989. Petitions nomlnllling a ca r'ldlda!e mu St bear the signature of 25 member~ in good stand· ing of the Alabama Stil te Baf and be received by the secrelilry of the state bar on or before Mafch 1, 1989. Any candldilte for this office also must submit wi th the nominating petition a bl<lck and white phot08r~ ph lind biogfilphical dill" to be I)ubllshed In the M<ly Alabilma lillvycr.

Notice of Election Ballots wi ll be m<llled between M<ly 15 lind June I (Iud must I)(! receivt.-d at sta te bar headqu<lrlCfs by 5 p.m. or) July 19, 1989, Commissioners B<lr commissioners will be dected by those lawyers with their prinCiPilI o(fif;e5 on the following circuits: 1st; lrd; 5th; 6lh·Place 111; 7th: 10th-Places 13 and 6: 13th-Place 113; 14th; 15th·Places /I 1 and 3: 25th; 26th; 28th: 32nd; and 37th, Ad· ditional commissioners will be elected in these circuits for ellch 300 members of the ~ta te bar wirh prinf;i plll Offif;1:l5 therein. The new commissioner pasi.

tionSwill be determined by <I census on March 1, 1989, and vac<lnc::ies ce(Tlfled by the secretary on March 15, 1989. The terms of any incumbent commissioners are retained. All subsequent terms will be for thrcc ye<lrs. Nominations may be made by petition bearing the Signatures of five members In good standing with I)rinclpal offi ces Irl the ci rcuit in which the election w ill be held or by the candid1te's wriller' declaration of candidacy, Either must be received by the secret<lry no lMer than 5 p.m. on the last Frid<lY in April (Apri l 28, 1969). Ballots will be prepared i'lnd mailed to members I,)ctwecn May 1S and June 1, 1989. Bllllo!s must be ",oted and relurned by 5 1).m. on the second Tuesday in June Oune 13, 1989} to state bar head· quar!e ~. •

March 1989

Notice

onference on [ u <\" I' lP~S

The Go\'ernor's Conference on Drug Awareness will be held April 11路 12, 1989, at Ihc Montgomery Civic Cenler. The conference is sponsored by Governor Guy Hunt and Ihe conference

planning committee, which consists of representatives from stale agencies and local service organizations. Professional groups and Ihc general public are encouraged to attend; registration is free.

The conference wi ll irK lude separMe programs for adults lind youth, The adult agenda will focus on recognizi ng cady waming signs of substance abuse among young people. Prevention and early intervention wil l be emphasized. Offering a number of dynamic workshops, the youth can路 ference will concentrate on substance abuse prevention. The adult conference-sched uled for 9 a.m. through 4:30 p,m., April I I -wi ll feature an opening add ress by Governor Hunt. Following the Governor's remarks, , ,DOD first-graders, representing the "Smoke-Free Class of 2000," will participate in a mock-graduation ceremony. Health , drug trCtllmcnt and law enforcement professional s will cOndllC! workshops in the afternoon sessions. Children in fourth through sixth grades are irwitcd to lunch and an educational session between noon and 2 p.m. on April 11 . The youth conference, designed to meet lhe needs of scventh- through twelfth-graders, wi ll begin April 12. High lighting their program will be remarks by Bill Curry, head foo tball coach at the University of Alabama, and Barl Slarr, former head co.lch of the NFL's Green Bay Packers ,

---------------

r-----

The Avis Association Member Benefit Program offers special low rates, represenU" a great savi~ opportunity, That. . Iong with many time-saving sel'Vlces, makes AviS an extIa - and valuable benefit of your membership. Whether you're traveling for business Of pleasure, Avis is the easy and economical way to go, all year 'round. And now, when you present this ad at Avis the next time you reserw an Intermediate or full size, 2-door-groLJp car, )00' 11 be upgraded to the next higher car group at no extra charse! Just be sure 10 mention your Avis IAbrldwlde Discount (AWOl number when you caU kK Avis reservet ons:

MEMBERS OF THE ALABAMA STATE BAR NA530100

10 take advant.aae of this special upgrade offer, call the Iwis "Speeral Promotion" reservation number:

1-800-831路8000

I I

I I I I I I I I

~--------------------------------------~

The Alabama Lawyer

About Members, Among Firms ABOUT MEMBERS Correaio": In the JilOUilry 1989 edi tion of The Al,lbama Lawyer, Hoyd F. Camp bell's

address ~$ incorrectly listed; Ihe correct address Is 505 South Perry Street Montgomery, Alabamo 36104. J()$ep h M.

• Powers announces a

change of olddress. Offices I'"IO'W are 10C31ed at 716 V.:m Antwerp Building. 103 Dauphin Street, Mobile, Alabama 36602. Phone (205) 432-6966.

•

Effective February I, 1989, lilW offices 0( Melton l. A le~n der will be relocated at Sufle 325, Park Place Tower, Birmingham, Alabama 3520l Phone (205) 328·7400.

•

R,O. Hughes announces the r'CIocal ion of hisprilctice 10 Suite 1225 Park Place To.ver, 2001 PMk Place, Blrm. ingham, Alabama 35203. Phone (2051 323-0010.

•

Larry R. Newman announces the relOCa tion of his olOee to Lornil Pro(!sslonal Building,. 3021 Lorna Koad, Suite 310. Birmingham, Alabama 35216, Phone (205) 823·5515.

•

Tim W. Fleming announc('s a change of address 10 1556 Gulf Shores Parkway, P.o. Box 938, Gulf Shores, AI,lI)am;a 36542, PhOllC (205) 968· 4444.

AMONG FIRMS Jarnl:'§ R. Cleary, Harald E, Bailey, John R. Bouran and R. Dilvid MeDowtll announce the formation of a professiol\.1l corpor,llion under the name of deary, Baih.", Barran & Mc· Dowell, P .e. OffiCes arc localed al Park Plaza, 303 Williams AY('nue, Suite 118, P.O. BOK 68, l"iuntsville, Ala· bama 35804. Phone (205) 534·2436.

•

AlbrillonS, Civhan & Clifton, An· dalusia, Alabanla, announce Ihat Wil· lIam Harold Albri llon, IV, has become a member of the rirm, effooiW! January 1, 1989. Oirices arc located at 109 Opp AvenllC, Andalusia, Alabama 36920. Phone (205) 222·3177.

•

Hayden R, Dailies, HUSh C. Harris and Nancy F. McClell .. n announce the merger of Dattles & BaWe5 ,md Harris & McCleU.n inlO the firm of BaUles, Harris & McClellan, with offIces ;It 405 2nd AV(! nue, S.W., Cullman, Alabama 35055.

•

The (jrm of Gathings & Dowis ill1110unces that Michael A. \o\tJr('I, fOfmerly a p.1nner of Emond & Vifl(!S, has joined the fi rm. l he rirm nam(' has been ch,mged to Gathings, Davis & Worcl, with offices at 600 Farley Building. 3rd Avenue North & 20lh Streel, Birmingham, Alabama 35203, Phone (205) 326-}553.

•

The firm of Reneau & Reneau announces Ihal Blake A , Cr(.'t:n Is now associ,lted wilh Ihe fi rm, wi lh o/(ices at 114 South Main SIf(!Ct, P,Q BOK 160, Wetumpka, Alabama 36092-0160. Phone (205) 567-8486,

•

Chris S, Christ ~nd Wendy L. Wil· liams announce their par!nership, in Ihe name of Chr bl & Williams, Of· flces are tocated ,11 Suill! 710, Frank Nelson Build ing. Birmingham, Ala· bilma 3520). Phone (205) 252-2222 ,

•

The (lrm 0( Schoel, Ogle, Benton, Centle & Centeno announces thilt Paul A. Liles, fOfmerty general counsel of BE&K, Inc., has become a parlner with lhe firm. OffiCes arc located at Third Floor, Wails Bulldlng, 2006 Norlh Third Avenue, Birmingham, Alilb<lma 35203. Phone (205) 324. 4893.

•

The firm of Miller, Hamillon, Snider &0 Odom annoonces Ihal MlchaloJ Cil-

lion and lames V, Ellioll hOM! become members of Ih@ fi rm, Richard A. Wright and Anne Carso n Irvine ha-ro become olSsodnled with the nrm ilnc! WiIli<1I11 F_ Neal, C.A.M., has become dl r('Clor of administration wilh Ihe firm . Mobile offices are located al 254 Slate Slreet, Mobile, Alabama 36603. Phone (205) 432·1414.

•

Nl!ltles, Barker, Janecky &I Copeland annoullccs Ihat Mark A. Nl'Well has b('Come a member of 1he firm, and Its Birmingham office Is now open al 2001 Park PI ..cc T()N(!r, Suite 200, Birmingham, Alabama 35203.

•

The nrm of lohnston{', Adams. Bail(.'Y, Cordon &0 Harris an nounces Robin Brigham Thetford has become a member of the (jrm and David R. Pe(>l{'r has become associaled with the firm . O(fices <.Ire iOColll'd at Royal St, Francis Building, 104 SI. Francis Streel, Mobile, Alabama 36602 .

•

The firm of lyons, PII>eS &,. Cook annQunc(.'S Ihal Thomas H. Benton, Ir., Danil!l S. Cushing, Cllber! F, OukCli, III, and D.wid F. Webber hiM! become associaled with the f rm, {'f(('C· ! i~ Sep!ember 1988. Offices are 10caled al 2 Nort h Ra,r,ll Slreet, P.O. Box 2727, Mobile, Alabama 36652 . Phone (205) 432-448 t.

•

David O. Wininger and D. DeLeal Wininger, Ir., announce the relocalion of Wininger & Wininger, P."'. 10 1025 Financial Center, Birmingham, Alabama 35203, Phone (205) 322·3663.

•

Cary L Blum ~ and Net1l ~ Cohen Blume announce the {ormation of a partnership for the practiceo( law under lhe name o{ Blume & Blume. Neltie Cohen 81ume is formerly of Ihe

March 1989

TuscalOOSJ Coonty District Attorney's O((ice, Officei arc located at 2300 East Unl~rshy Boolcvard, Tuscaloosa, Alabama 35404, Phone (205, 556· 6n2 . N~a

•

C. Conway and John S. An· drews announce the formation of a partnership In the name of Andrews & Conway, Of'lees are located at 415 East Commerce Street, Suite 103, Greenville, Alao..lma, and 10 1..1fayeuc Street, Hayne\'ille, Alabama, Phone (20S, 382·6541, 382-8023 (Greenville) and 548·2132 (Hayneville).

•

The finn of Hornsby & S<:hll1lu announces tflill upon E,C. Hornsby's being elected Chief Justice of the Supreme Court of Alabamil, the firm name was cl'1.1ngoo effcctlve January 17, 1969, 10 Steven F, S<:hmill, a Professional Corporation, The firm's offices will remain loca!(.,(! at P.O. BOK 606,213 BarnClt Boulevard, TJllasS(!C, Alabama 36078, Phone (205) 2836855.

•

The firm of \bwcl1 & Meelheill1, PoC. annoonces thai C. Stephen AleK' ander, formerly law clerk to Judge Jack Carl, bec.lme associated with the firm January I, 1989, and Martha Jane Pallon became associated with the flrm February I, 1989, Offlces arc 10Ciltl-d ilt Suite 500, 310 North 21st StrCCI, Ulrmingham, Alilbilma 35203. Phone (205) 252-2500.

•

The firm of Filrmer, Price & Smith announces that Joel W, Weatherford has become il partner In the firm . The firm will conlinue In the nllme of Farmer, Price, Smith & Weatherford, Ofl'ices tire loc.. tcd ill 115 WPsI Mams St~, PO Drawer 2228, Dothiln, Alabama 36302, Phone (205) 793-2424.

•

Hand, Arendall, Bedsole, Greav('S & Johnston, 30:h Floor, First NOIional

Bank 8uilding, Mobile, Alao..1ma, an· nounces that Henry A, CilllawilY, 111, has become a member of the firm,

•

The Alabama Lawyer

The Huntsville firm of E. Ray Mc-

Kee, Jr., announces Ihal Jackie D. fe rguson ha~ joined the firm as tin assodate. She is a 1987 graduate of the University of Alabama School of law and recently selVCd a ~ clerk for the HonOl'ilble R,l, Hundley, MOrgJn County Circuit Coorl. Offices are 10Catl>d ilt 2319 Market Place, Suite A, Huntsville, Alabama 35801. Phone (205) 551.0300.

•

H,uris, Evans & Downs, P,C" announces that Lonclle Lamb 8erg has become a member of the firm, and Lonnie D, Wainwright, Jr., has become associated with the flrm located In The Historic 2007 Building, 2007 Third A~nue North, Birmingham, AI .. ballla 35203, Phone (205) 3282366,

•

The firm of WilkinS, BlInkester & Biles announces Ihal Marlon £. Wynne, Ir., has become a member of the firm, and the firm's name Is I\OYI changed to Wilkins. Blnkesler, Biles & Wynne, ThQmas P. Wi1li"ms has joined the flrm as an associate. The firm has offlces located al Old Trail· wirf 8uilding. P.o. Box 400, Bay Minette, Alabama 36507; Chicago Street, P.Q Box 562, Rober1sdalc, Alnbilma 36567; and 221 Fairhope Avenue, PO. 60x 1367, Faimol>C, Alabama 36533,

•

The firm of Brinkley & Ford announces that Richard Chesnut alld Daniel F. Aldridge have become part· ners, and the firm name has been changed to Brinkley, ford, Chesnut & Aldridgll. Offices ;.Ire lociltcd at 307 Randolph Avenue, 1'.0, 60x 2026, Huntsville, Aldbama 35804·2026. Phone (205) 533·4534,

•

lange, Simpson, Ro binson & Somerville announces thill Will M. Booker, a parlncr in the fl rm of White, Dunn & Booker, .. nd formerly vicepresident and general counsel of South Central Bell, has joined Ihe flrm as counsel, and that lames F. Walsh, Thomas F, CoiImpbell, Timothy A.

P.lirner, R, Alan Deer, J, Frank Ozmenl, M, Beth O'Neill and Rebecca S, Dunnie have become associated with the firm . The firm also announces their merger with Wd1l5, 5.llmon, Roberts, Manning & Noojin, liuntsville, effective January 1, 1989, under the name of L.1nge, Simpson, Robinson & Sommerville, The Birmingham office is located at 1700 First Alabamil Bank BuildIng, Birmingham, Alao..lma 35203, Phone (205) 250-5000, The Huntsville office 15 located at 100 Jefferson StfC(!t, South, Suite 200, Huntsville, Alab.-~ma 35804. Phone (205) 533·)500,

•

Effective JilnU{lry 1, 1989, the t'irm name of Melton & Espy, P.c. was changt>d to Melton, Espy & Willi~ms, P,C, OffiCes are located ill 339 \Vash. Ington Avenue, Montgomery, Ala· bama 36104. Phone (205) 263-6621.

•

The firm of Knight & Griffith an· noonces that S. lynn Marie McKenzie and Jason P. Knighl have be<:ome partners of the firm, effecti~ January 1, 1989. Offices are loc;ued al Griffith Building, 409 First Avcnl/{', S.w., P.o. Dr.l'NCr M, Cullman, Alabama 3S056. Phone (205) 734.()456.

•

Balch & Bingh;lnl of Birmingham and Montgomery, Alabtlma, an· nounces thilt lohn I, Coleman, 111, and John F. Mandt hilY(! become I)allners in Ihe firm , with offices at 1710 North SiKth Avenue and 505 North 20lh Street, 1'.0, 110K306, Birmingham, Ala· b;Jlll;J 35201, and Ihe Wlnler Building, 2 DeKter Avenue, Court Square, 1',0. BOK 78, Montgomery, Alabama 36101, Phont! (205) 251·8100 (Birmingham) and 834·6500 (Montgomery),

•

The firm of Stropp & Na kamura announces that Robert H. Stropp, Jr., is relocating 10 Washington, D,C, to become general counsel, United Mine 'MJrkers o( America, International Union, George C. longshore and Associates will associate with the firm,

JQhn l. Q uinn will /:Jt,l(om(: il member of the nrm ~nd Robert M, Weaver will be an Msoclale of the firm. The firm will practice under the name of longsho re, Nakannlra & Q u inn, al 21s1 Floor, Cily Federal Building. 6irmlngham, Alabama 35203. Phone (205) 323-8504.

•

The firm of Lewis, M arl in, Burnell & D unkle ann ounce that Sandra W. Murv in and Nancy G. Osborne have become members of the firm. Offices lire loctlle<! ti l 1900 SoulhTtusl Tower, Birmingharn, Alabama 35203. Phone

(205) ]22-3000.

•

Harris, Shinn, Phillip§ & Perry, P.A. and Cadell & Shanks of Dccatur announce the merger o( Ihe fi rms (or lhe Ilracl ice of I<IW under the name Har· rl s, Cadell & Shanks, P,C. and that

SIe...en C. Sa sser has become assoclaled with the firm ,

•

Gary l, Armstrong, Oavid P. V<1 ughn and G, BiII'ker SI(:1 0, Ir., aJ'lnounce the formation o( Ihe firm of Armstrong, vaughn & Stein. The m.. iIing (lddreSS is P.O. Box 2370, Daphnc, Alab.una 36526, an d th e office ad· dress Is The Summit, Sui te 3, 3000 H ighway 98, Daphne, Alabama 36526, Phone (20S) 626-2686.

•

Nancy Ski pper lo nes, formerly an assistant district attorney for luScalOOS<l COUn IY, announces thill she is now the staff attorney (or 8 ryce Hospital, a filci lily of the State of Alabama Department of Mental Health and MeJ'llal Retardation , Her new address Is Bryce Hospi tal, Legal Office, 200 Unl~rsllY Boulevard, Tu scaloosa, Alabama 35404. '>hone (205) 759-0758.

• p.c.

Charles Tyler Clark, armounces the associatlO,l of Gregory I. McKay III the firm of Clark & James. Offices are located at 617 Frilnk Nel~n BuildIng, 6 irmingham, AI~bama 35203. Phone (205) 322-3 636.

•

Th e firm of Bisho p, Colvin & lohnson announces the relocation of its law offices, formerly at the Fmnk Nelson 6uilding on 20th Si reet in Birmingham, to its new offices loca ted at 317 20th Street, North, mailing addrL'Ss P.o. 80x 370404, Birmingham, Alabama 35237. Phone (205) 2512B81. Bishop, Colvin & Jo hnson also announces Ihill J. Merrell Nolen, 11'., Cumberlimd School of Lav.', class of 1968, W1l 5 associll ted with the firm e(fel;:l ive October I, 1988.

-NOTICEThe American Bar Associat iOn Standing CommiHee on World Order Under Law

1989 Bruno Bitke r Essay Cont est 1989 Topi c: First P,ize: Second "rl ~e: Eligibility: Content:

LenS\h & formal:

Deadline:

" What Role Should United Beyondl" $1,000

Sl ate~

Policy Play In the Reallzmion of InWlIlational "Iuman Rights, Today and

1500

Any members of Ihe Americ~n Bar A ~sodation imd ~tudent5 al A6A-acc re(li t(.od law ~hool$ EssilYs should include discussion of th e legil' and policy 1~51,1es related to the role tha t United Stjtcs policy, both fo,cIS" lmd dOnlcstlc, sllo\ild play In tne reallzmlon of International hltman rights. Issues addressed mBy Include Ihe Ql,lestlon of U.S. ratification 0/ thl! International human rlahts treaties. Includlnllthc Intern,,_ lional Covenan ts on Civil and Poli tical Righl s and Economic, Soc:llIl and Cuhwal Ri ghts; the Conventions on Elimill3tion 01 All Forms of Racl~1 Oiscrlmi notio,' 3nd Ellmln,!!lon (If DlSl:rlmlnMlon Agnln st Women; the Amerlc .." Con~e"tlon on I"I "m~n Rlgh!~, a,'£! the Tonure Convention; and Ihe roles of the ext'C~ t ivc and of Congre5s In promoting International human rights and 01 the courts ill implementin g in!C,"aliOn~1 hl,lman flllh ts law and policy. Essavs will be ludlled 0" the quality and forca of the legal and polley analysi s, and elea~n(;e and felici ty of cxp,euion. Entries should not c~ceed S,OOO w()td s, Inc udlng foornoles. Format: (textual footnotes should be kept to a mlnlnwm! Text and foomotes should be typed double.spaced, on white paper, 5uitJbll! for Ilhotoc(>J)ylng. For furl her information write: Bonita J. Ros~ American Bar r\iM>l!iati(1Il Stnn(ll"g COmnlht(}e on Wod(! Qrdlll Under Law 1800 M Srrcel, N.W" 5-200, W~ shlnglon , DC 20036, (202) 331-2277 The essay n)l)SI be post m~/ked no Inrer Ih"n May 1, 1969, 3nd sent to the above address. This es~3y cO'lte~t 15 In memory of Bru no Bltker, late chairman of the ABA St3ndina CommillOO on World Order Under Law, who devoted his life to the quest for peace and justice through law. l~C pracliced In Milwaukee, Wi sconsin, fm moSI of his life, and w~ s in~trull1Cn tal In adva!ichiS ma,'y hum;lJ'l rights Issues. The breadth of his concern fOr humon rI!:Iht5 ftnd wodd order was gIOb.ll. Thi s contt'St Is made possible by the America n Bar Association Sranding Commiu('(l on World Order Unde, Law and other friend s of BlUno Bitk(lr.

M,lfch 1989

Young Lawyers' Section Welcome new ndmitlces n October J 1, r988, thc

Youn~ Lawye~'

Seclion wei·

comed II ~ groUI) of young lawyers into the ranks of the Alllb.lma

State BaL The faU bar adlnlsslons Ceremony was:I great success, thllrlks to the hard work of Rebecca Shows

SIY"n of Montgomery. Alabama.

bar to become an integrill pmt of an excellen t professio",1! association, with projects, progranu and inlerac· tion providing an excellent OJ>I)()rtuni· tv for new lIdmittees to develop them· selves ;Is lilwyers and Individuals. The " Brldg(Hhe·Gap" ;lnd "Seminar on the Beach" ClE progr~ms are directed toward helping with this \riln silion,

N. G unter Gu y, Jr, VLS President

Rebecca rClllact.'CIlaufa Crum, who coord lnaccd the deta i ls of the ceremony (or many years. The Yl5 thanks laura for het UllIirlng service to the section In that Call.lc1ty. The

new admittees, after being Sworn In by the Supreme Court of Alabama, were treated to a lunch wi th their family and friends. The guest speaker (or the luncheon was Harold Apolln.

sky, a manasln!! partner wi th the Birmingham law firm of

Sirole, Per-

mult. McDermott, Slepian, Friend, Friedmiln, Hckl & ApollJ'lsky. Apolin~ky is a dislingllished tax attorney arId merl1~r of the stil te bar, and spoke on the practice of I;lw in the 1990$, The admillces then ret ired to the $Ullreme coun where the trildltiooal I)ictures <He taken, which ,uu con. tal nl,-'(l in the j anuary Issue of The A/,1b,lm,1 Lmvyef. We congratula te the new ,1(ImineG and wi sh thum CV(!ry succes~ as they enter thi s dlstinguishl.-d profession. This high honor is il re5vlt of many years of hard work ilnd (IedlcHtion, coupled wllh the 5UI>I)()rt and en· cour3gemcnl of their family and friends, However, now that these young lawY('1) hiwe achieved their goal, the transition Is not alwilYs easy. The YLS offer~ lin Ideal opportunHy for the newly·admltted member of the

The A/abamil I./IWYCf

VL S executive c ommillee The YlS Executive Commi ttee met S<IIurday, Februilry 11,1989, althe Grand Hotel in Point Clear. Each commlttl.'C chairperson was given the 0PI)()nunity to report the t)rogrcss of their reSI)(l(live c;ommiuces. Those who attended the ABA Mid· Year Meeting the week before g.we their reports concerning Information gleaned from the workshops offered by the Young lawyers' Division of the ABA. The focus of this year's mld.ye,lr meeting, as always, Is the Member· ship SUI)porl Network Nationill Con· ference . The conference offers a mix of substan tive progranl5 designed to assist young lawyers In their profcs· sionill "nrl pcrsonall1ves. Thl.'S(! programs offer new wa~s of rllllna81ng time and stress; peacefully resolving conflict within the work settin g; generating business for the law firm; effectively USing 1~11 assistance; and the very basics of start ing a law prac· tice. The remainder vf the mid·year meeting is devotoo to the assembly of delegates, wherein numerous resolu· tions and proposals ale debated and VOted on by the members of the young lawyers' assembly delegation . Alabama WIIS well.ret1fCscnled at the meeting by a number ot our c;omml t·

lee members, and we thank thum for their ane,ldance and the inforrtllltion they were able to pass on to us. Sid jackson updated the committee 00 the det,llls of the Sandestin Seminar, and it sounds like it will be another OIJIst,mding l)rogr3m Ihis year. The social ilC\ivitics, as well as the CLE program, should not be miSSt'<l. The remainder of the h ecutive Commillee meeting concerned the usulIl business at hand, touching on such m1llters as the Youth judiclal ProWarn, the Bridge-the-Gap Seminar and the annual bar meeting in Huntsville this summer, By the time this article rc<tc;t'L'S you, I anticiparu the presentation of another successful Brid8e·lh~GlIp Seminar. Thi s seminar condu cted February ''1· 18, 1989, has been a valuable 1001 fOf' the young lawyers In bridging the g.lP between law school and the privillC practi ce of lilW. The YLS thilnks commi ttee chairperson Steve Shaw of Illrmingham and Ihc distinguished faculty and practicing attorneys who rY'Iooe the seminar a success. The seminar Included lec· tures on probating an estate, small business Iransactlons, simple tri al practic;e, lilW office J>filctice, c;rlminal

law practi ce, domestic law tr<ln sac tion s, bankrul)tcy (lmJ rt:(li es ti'le lijW. For those who may have missed this very Inform(ltlve ClE seminar, you Ctl n contact the Unlvet'5l ty of Alabama, Alabama Bar Institute for Continuing legal Education, for the possibility of obtilinlng the handout material s. I bring ;lUenlion i1gi1in to the o(ltslanciins job being done by Charlie Anderson of MOntgomery In coordinating thc activities of the Youth Judiciil l Progr:H1'1lhiS year. Thi s program offers high school students the opportunity to p;lrtlclp:\te as attorneys, Judges, witnesses and jUfOt'5 in <l v<lrielY of courtroom experiences. At Ihe time of thi s writin g, Ihe progfilm is

/lOt complete, but I anticipate another success, with well over 400 high school students as p.1rticipants. I will update our section Jlter the program is completed in Montgomery Fehruary 27, 1989. I do nOI f(lel it tOO early to mention thc annual mccting of the Alabama State Bar July 20-22, 1989, In HUI'llsvlllc, Alab(1ma. O ur Executive Committee ch(1lrpeoons, Amy Siaden and Fr(1nk Polls, are "WOrkIng hard to mJke thi s meeting a success for the YLS's activities. Although t-Iuntsville is;l long di ~lm'c(l for milr'ry mcmoorS of Ihc bilr, I eneoungc everyone \0 mark their calendars and make plarlS to attend. Your partici pation certainly can make a contribution to its success. â&#x20AC;˘

otic

The Board of Commi ssioners of the Alabama State Bar has recommended to the Alabama Su preme Court tha t the Code of Professional

Responsibility of th e Alabama Stat e Bar be

CORRECTION NOTICE IN RE: MAR ITAL AND FAMILY LAW CERTIFICATION The notice of a Marital and Family Certifi cation process whi ch appeared 011 page 23 of the January 1989 Alabama Lawyel was printed In error. The BOilrd of Comml ~ sloncrs has not gr.. nti!d certific... tloll authority to any ~tion, committee or such bar cnlilY. Aft er all eJrlier study, the BOMd of Commisslonet'5 speclnca tiy rejected lhi~ concept of specialization.

Riding the Circuits

superseded by the adoption of new "A labama Rul es of Professional Conduc!. " T h e court has taken those new rul es under consideration and Rel)Orter 2d series advance sheet. That publica-

lee County Bar Association The Lee County Bilr Association recently elected its officet'5 for 1989. They

tion should be made in an advance sh eet ap-

are:

ordered that they be pltbli shcd in the Southern

peari ng d uring late February or Marc h , and will probabl y be made in a specia l Alabama editior, of the advance sheet (Le., an edition mailed only to th ose su bscr ibers with Alabama mai ling addresses). Interested persons have un til A p ril 28, 1989, to submi t to the C lerk of the Supreme Cou rt, P.O. Box 1 57, Montgomery, A labama 36 101 , any written objcctior,s or com-

President: Robert H. Pelley, Opelika Vicl'!-preSidcrlt: Arrlold W. Umbach, Jr., Auburn Secretary-treasurcr: Ccell M. TlptOIl, Opelika

â&#x20AC;˘

ments con cerning those proposed rule s.

M,lrch 1989

ATTENTION ATTORNEYS NOW YOU CAN HAVE IMMEDIATE ACCESS TO

LEGAL INVESTIGATORS

AFFORDABLE TERM LI'E INSURANCE ,ROM COOK & ASSOCIAT!S Compare thl.1 low lion,. maker .nnua! f.'tll for non. d.~", •• 'ng grlded premium lit,:

MALIAOU

THROUGHOUT THE UNITED STATES BIRMINGHAM

."".." ."

942-7552

'DOTHAN

793-1288

· HUNTSVILlE

539-7761

'MOBILE

343-3310

'MONTGOMERY

834-7300

"MEMBER N.A,LI_

"'0,000

"00.000

",00°1000 4'0.00

11'.10

~:u.oo

In.IO 202.10

a'I.DO 311.00

211 .00

400 .00 '10 ,00

140,00

700 ,00 1,031,00 1,700 ,00

' ,040.00 ' ,UO .DO 2,180.00

3,000.00

I,Q'O,OO

2:tUO U7 . IO 142.10 17'.00 l , no.OO

100.00 lUO.OO

"0.00

Renewabll 10 101 100. Fem,l, r.t.. ,ama 81 mil" lour )lure young,f. AU coverage provided by companl.,. I.Itd "A+ " by A."4. aU' Co. For . written ql,lOl,1I0rl .nd poUcy doserlpllon .. nd your dill. 01 blrlh and ,mount 01 coverege dlulrod to;

COOK & ASSOCIATES

The NaIionBI AssocIa/ion 01 Legsllnvestigators

QUAUTY PROFESSIONAL SERVICE

2970 COTTAGE HtLL ROAO • SUITE 201 MOB tLE, ALABAMA 36606 (2051418.1731 o(e"!\IC~1

... bOot '., ..... ~tcI "Y <:"01>01 lit. ~ Joo;~_ ".11""01 ll'-

-Noticeloin the Bankruptcy ilnd Commerc ial law Section for it s Annual Semina r at the Beac h May 13, t989-Perdido Beach Hilton Cornu ne «iucalion and rclilxa l ionl Gel 3.5 e lE c,w ltS wl l h l ime 10 work 00 YOUI !.In, yow forehand and your bacbwlns. and enjoy the cpicureiln OOll8ht5 of the "I"b'lmil Riviera !

TH E PROCRAM: 8.1.m. 8:30 a.m.·noon

l alC rC8IW~ t lon/Soulhflrn·~tylc con tinental tlrcakfa5t lion, ",thur Brl ~kmJn , Judge, u.s. U(l nkruptcy CO(lII, So. D iStr ict of Alabilma Recent 11th Clrc:uit D«1~iom Af~'('l n8 Ililnkruptcy law ~nd PraCI'C!"

C. Edw.ud 00I>I», Esq., Parker, Uudson, Ra inier & Dobbs, "tlanta, Goorll ia Fralldlenl Troln) lcrs and Level,lKCt! BUY-Quls

lhe I IiIlon is holditlll a Ilmlled number of rooms 011 special seminar rales of klnllldbl- S69; suites $1 ))/S 196. Rc\CrltJtlotl dCildlinc Is April 11, 1969. M okc ~ rr..m8cmcnts directly wllh Ihe hotel at 1-8QO..6J4·8Q01 , P,O. Bo~ 400, O rilnWl Oe<lch, "lau,Hna 36561 .

--------------------------------------------------Sign me up for the beach! ___ Seclion member regislratio n fcc $50 ___ Join and Si'l ve-ducs and fee $65 NAME:

___ Non-member fee $75

THE. NO .

MAJlING ADDRESS:

MAKE PAYMENT TO: BANKRUPTCY AND COMMERCIAL LAW SECTION MAtl TO: Romaine S. Scott, III • P.O, BOX 306· Birmingham, Alabama 35201 • (2 05) 251-8100

rile Alabama Law},er

Alilb;mlil'S drug epidemic hil ~ spread to the workplace. While natiQnll1 estimatClS vary, there is no dispUh:! th at employee drug U5C, on and off the job, yields serious hurnan and economic harm. M any employers now are grill>piing with drug il bu ~ on the job, abuse whi ch undermines auendance, productivity and both workpl ace and public safety. Some employers ((!cerltl y have implemented drug-lcstlrlg prog,;:nllS Inlellded to IdenTify em ployees or applicants who use cont roUed suhstilrl Ces. Once il " user" has oc>en idenTified, employers' policies Vilry dram atically. Some progr.1m s 1;,111 for lhe imm~>diatc termination of any employee who tests "positiv«( for cOl1lrollcd substances or wh o possesses drugs on the employer's Ilremlses. O ther employers routinely reject applicants wh ose drug screens arc positive for controlled substances. Whil e th e contOUr5 of employer policies v:lty, Ihe " I)'nchpin" usually is a mandalory drug screening procedure. Some emplOy(!I'S will leSI eml)I~S only w here there is a reasonable suspicion of drug abuse while others will tcst emplO'f' ccs on a rand om basis. Many program s include speclf c circumstnnocs under whi ch an employee will be tes ted, such ilS when he or she has an excessiYe number of accidents or iln unusual number (If absences from work. Some cmplO','e1'5 Pl'O'IIide rchilbilitation OptlOr'l s for erl1l)loyees who test positive. The nature alld extent of rehabili tation available vary widel y. A number of employers simply implement il "last ch;mce" po licy under which the employer will reSl;ind (Iny (lisr;ipline imposed lIpan an employt.>e who te sts I>ositive for drugs if th at cl11plOy(.>f! Can show Ihllt he or she crl tcrcd and successfull y completed a drug reha bilitation program. Other employers adopt company-sponsored rehabilitation programs which are man· datory (or any employee who tests poSitive. Some compi;lny-sponsored prQgrams are Ol>cn to ilny employee who desires to ~nt': r Ihe prOgram, :md the rehabilitation involved may range from ou tpatient counsell ing for so-called recrea tiOnAl drug llSCrs to an extended Inpatient treatment program for drug-

Dru estin • • a e IS atlve by James P. Alexa ndN and lohn

w. H iH~rove

March 1989

in Em oyment: Pro osa or a ama

dependent worke~. Although the exIlenS(!!; a s~dllted with comp..11lY'spon路 sored rehablllliltion may be significant emplc:ryef'S often nnd Ihal the benefits rt'!Ceivcd, both in terms of eventual cost

savings and impro.oOO workfol'Cl'! morale,

employers or available from laboratories, perhal)S the most widciy-used test Is an enzyme immullOaSS<IY which is admin15tered upon a urine sPfCimcn.' This pr0cedure aclUally detects the prl.'SCnce of metabolites 芦Is OPllOSCd to the druB

IlsclO thaI are conslstenl with the use of Vouious controlled subswnccs. Urine specimens usuilily Me collected In the presence 01 a witness. and the collections take place either on the empb,.<er's premises or at a dcslgn.ncd COIiOClion Sile.

oUI....-t!igh the iniHal out-of.pocket Cit-

pense. Indeed, the Impact UI)On recovered employees can be <Werwhelm路 ing. As one ctllilloyee (of ;m AI<lbama employer), who had denied Valium and alcohol llddktlon for 26 years, com. mented, "I have II new life now. I would probably be dClld If I hadn'l gonen into line camp.loy's] drug program ... I go Out and IU$1 drive around looking ill all the things I've missed In the last 26 ~;IrS. I'm goUins to know my (our-year-old gfilndson ... The new life I found Is my Incentive 10 kcep clean ." Al though there arc a \lMiery of screen-

A/{::lIiltlder 1\ a /Mftner In tlie Blrmlngli,lm (;rm of Bradlcy, Arant,

J<1nlCS P.

Rose &. Whife, and he received Ills undergraduafe and IJW de8rees from Duke University. He Is a I芦lurer in employment discr;mlnafion lawai Ihe University of Alabama School of

lolin W. Hargrove 1$ /n 1i15 third year wllh 8'ddley, limn! and lie received his undcrBrdduare degree from Auburn Un/vcrslly and law dcgr~ from Vanderbilt Uni-

as an IHsoclatc

versity.

Law.

Ins 1(!5!S either mar kClCd directl y to

Thc Alabam.:l LalV)oer

In contrast 10 t~ts which measure blood alcohol concentration, drug tests do not provide even a rough index of an Individual's imp.lirment flQm a pm'tic::ular drug. Alabama law provides presumptions of impairment that stem from the level of alcohol In the bloodsHeam. Ala. Coelt.· §32-S,A,.194 (1983 and SU1>1).1988). HOW('\I(lr, the presence of the cannilbl· rlold mct;lbollte, for example, yields no rcasoned inferen ce Jbout the extent to which, If any, an Individual presently may be affected I7i marijuana. MOre&.1:!r, there are a variety of con trolled substances. and these substances metabolize 011 differing r;'lles. FOr example, cocaine metabolit(!S may be eltcreted completely within 72 hours after ingestion while marl luana metabolites, which apparently bond to fatly tissue, may be prescnt for much longer periods, Additionally, the individual's I)hysiology and olher circumstances may af«.-ct the rate a drug Is metabolized . Accordingly, a Nposltlve tCSt" fordrugs does not necessarily rcIlect an individual's fl tllCSs for duty, but it may, in fact, identify only occasional use

which may have no current iml)act on job performance. Many employee groups have been "00ciferous in their objt.'cl lons to drug tcstlng. While certain of their objections may be fairl y characterized as Irresponsibil:! (that is, offered only to p(!mllt, If not fostl:!r, Ihl:! recreat onill use of soml! drugs), others have merit. First, coli(lctlng II urine specimen for a drug test I",pllca tes personal privacy 10 an I:!xtent. Sec· ond, Immunoassay tests, as well as other commonly utillzt!d drug screens, have a cognizable errOr rate, and some studies have connrmed false positives. More<M'!f, there have been instances where eithl:!r colmless laboratories, inadequate chain· of-custody procedures or simple employer ineptituoo have yielded Inac· cur.lIe results. Finally, many employers have miS\Jnder5tood a dr'Ugtcst result and iml)roperly or unfairly publicized the resu lt, with thl:! effect of stlgmalillng an employee. Not all I:!mployeeoojections, of coun.e, are well-founded, For example, any legit. imate ob}ections to the possibility of fJlse

•

Ajabama Allorneys for Animals, an as· sociation of 35 allorneys licen sed in the state of Alabama, was recently incorpor· ated as a non-profit corpora tion. The group has been operaling for i1pproxi· mately four years and formed a non-profit corporation to seek solicilation of funds for a legal defense fund for animals. The group is the first of its kind organ· ized on a stalew ide basis In the cou ntry and recently received news exposu re in several national animal rights publ ica· l ions. Any ilnorneys or other persons in Alabama who would like to join Alabama Attorneys for Animals, Inc., or who would like further informalion shou ld con lact:

James R. Foley 101 North Side Square Huntsville! A labama 35801 .

posi!l\leS arising from an initial screen can be rectified Ihrough confirm..tory testing. Indeed, some labofdtory procedures are designed such that a false poslti\!{! Is more likely to result than a false negative because the false posWve triggers a more accurate confirmatory test, ultimately yielding greater overall accuracy, Additionally, certain spet;ific complaints, such as the complaint thai immunoassay tests, In partlculilr the Entyme MultilJlied Immunoassay Techniqul:! (,Ef..1IT" registers false positives for blacks as a result of a cross-~act1on whh melanin, a dark skin pigrrl(!n1, appear5 to have no rational suppol1 in the scientific community.' MilllY othctemplO't«l issues can be dealt wilh through the adoption of responsible pr;lctices lind controls I7i both Ihe employer lind the tcstlng laboratory.

Employers, on the other hllnd, have a number of Incentives to "dopl drugtesting progrJms. Flrsc, the fed l:!ral governmen t has suggested that emplayer5 take a l>rOaCti>,{l position with teSpecl tQ emplO',(!e drul abuse. Legisla.

Noi It has bct:!n brought to the attention of the secretary of the Alabama Statl:! Bar, by the United StJles District Courl for the Middle District of Alabama, lhat lawyer5 may encounter problems regarding service of process and certificalion of counset. A number of lawyers arc Ii~ted as agenlS for serviCe of process, accepting the summonses and complain ts and forward them by regular mail 10 their prl nclp.1Is. In a rccem caSI:!, a dl:!fl:!ndam suffered default because the l)dnclpJI said hI:! did not receive such Impers from his IlIwycr. Lawyers choosi ng to act lIS lIgl:!nts must realize thil t they arc subject lO liability as agents to their prin. cipills anv should assure themSl:!lves of the ilbility to dl:!monstratl:! Ihallhey have duly forwardoo such l)apers 10 their principals. A second probll:!m concerning service occurs when a lawyer certifi(!S service on all counsel without naming them and without saving copies of cover letters or othl:!r papers from which they may reasonably demonstrJte service " on all counsel." Certificates should Indicate Ihe nafl'l('S llnd nddresses where such service WllS$Cflt so Ihat "tleast someone in the office can responsibly tl:!slify that the certificate Is ,l ccurate as to I:!ach cOlrn~e l who was SUI)I)()SOO to have oc-en served.

March 1989

tion recently enacted requires federal contractors 10 provide a drus·free workplace and to d~lop educational programs (or employet.'S.' Second, im· p<1ired workers may have a wave Impact on workplace safety. A substantial north Alabama empl<1)'er who Implemcnted limited Substance ~buse testing (as a part 01 a comprchcnsi~ substance abuse program) found thai his accident ratl! decreascd by (Wet 50 percenl in the Orst year the program was in effect. Third, employers In Industries wheI'C there is $ubstllntllli possibility of Ilubllc liability (e.g., ready-mix concrete companies, over·the-roa(l tfllcking comp.lnles. construction companies and others) hOM'! drammlc Ince nt i~ to Ity to eliminate impaired empl~ from its workforce. Fourth, the conclusion Is inescapable th;lt drug abuse Is a major contributor to IlOQr productivity as 0011 as increased costs from medical and other insurance CcYClages. Certainly, the safety an(l e(Onomic considerations suggest that the prudent employer should at least con· sider adopting subscance abuse testing as a componef1t of a comprehensive work· fo rce drug program. There are a llaricty of reasons which suggest that emplCly'Cf drug testing Is OJ legitimate Ilrea for Slate rcgul.llion. There can be lillie doubt that employer substance abuse programs which encom· pass mandatory (lrug testing are in the public Interest. The substances at issue, after aU, arc unlawful, and no person has any 'right' to 1r18(st thllm. As former Transportation Scc,clary James Burnley obsef\led, ~No one has the constitutional right to use Illegal narcotics In a w;ry that putS people at risk." More<M:lr, the laud· able objc.'Ctives of both ImprO\lCd safety and productivity are unassilliable. Addi· tlonally, considering th'" most Alilbilma d tlzells must maint(aln steady jobs in order to survl'o1!, there is no cogent (argu· ment that the workplace is not an appropriate front on which to wage the Wilron substance abuse. Accordingly, the legislature should f.lcill tatc respon sible employer substance abuse programs, ~ pedally those which include m31ldatory drug testing, since mandatory testing Is the key element in making a substance abuse program e(ft"'Ctiw. While encouraging substance abuse programs, the legislature must protec:t legitimate employee concerns. Some The AI.,bama Lawyer

employers apparently have behaved ir· responsibly with respt'Ct to drug testing. For ex.ample, some employers have termlnat<..>d employees on the basis of IlOsi· tl'o1! dr ug screens without confi rmation tests. Privacy concerns of ellll)I'¥'C5 have not been uniformly respected. The posSibility of employer abuse remains gen· uine. Moreover; many of the legitimate objections to drug tC)ting may be ad· dressed by an appropriate and well· defined standard of calc. The legislature peculiarly is well-equlpped to blllance these competing concerns.

There are, however, lim!b upon what a state statute can accomplish. While a state statute can enumerJle, or limit, causes of action arising under state lilw, a state statute, of course, wi!! be preemllted by cOllfllcllng fedctilllilW. Relevant to workplace drug testing is the panoply of federal laws governing the cmployer-ernployee relationship and protecting individual enllllO'y'Ce rights. The general COunsel of the National labor Relations lJoard, for ex.,mplc, dctcrmlnoo tilat the unilateral implementation of a mandatory drug.testlng progr;11"Tl dur-

Ing tne term 0( a collective bargaInIng agreemCnI betwccn a COr'llpany and a union vlolatcs Ihe COr'llpany's duty to bargain under the National labor Rela· tions Act. TItle VII of Ihe Civil Rignts Act of 1964 prevents tnc implemenlation or appllc:uion of ~ program whicn targets minorities, women and otnt:!r prollXtcd groups. Tht:! OCCUI)lItlonal Safety and t-l t:!ahh Act and similar sta tu tes prevent employers from using drug.testing programs 10 harass whisl leblO'WCrs. Addi· tiOnally, with (('gard to programs affCCI· Ins public sector eml)iO)'CCS, a slatc SI(l!UIC may not limit Ihe constitulional protections for thLose L'fTlpr~ under thc Fourth, Fi fl h and Fourl(!C,lIh ar'llend· mellls. Thu s, In cases where federa l raw effectIvely prohibits a drug test, or (lClion pursuant to a lest, tht:! federal lilW would

make 1IIegai actIons oth erwIse lawful under Ihc Slate drug' testing statu te. One legislature, that of Utah, has dooe a competent iob of balancing the competing intereSts at stake In implemenTing a drug.testing program. S(!C Ut.1h Code Anl1. §34-38·'·15 (1988). The Ut"h legislature succeeded In accommoo(ltlng the Interests of employers, cmployc<.>s and Ihe general public. Although one might quibble about particular provisions of thc 1987 Ulah stiltute, it fCl)reS(!nIS a rca· sonoo approach to thc dfUg.lcstinglssue. The statute specifically authorizcs the use, by c,nployers. of alcOhol and drug Icsts provided Ihat, as a cond ition of im· plementing such tests. Ihe emplcryer's milnilgcment illso must be lestt.'<l ~on a l>criooic basis:' Id. , §34-38-1 Moreover. the eKpenses of implementing ,I drug.

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8·e

S/(I/II O//ictl324 NQr/it

2161 SI.l11im';twliam, AI.352OJ Titl~ Comf/(lt1J'

1M f'rc, · IIBOOI843,1688I7Nf!alt ·J/J26·{)919IA Milllll!wla

lestlng program arc allocilloo exclusively to employers. Id., §34·)6-5. The slatute specifically adopts professional st.lndards and requires thaI adcqua'e safeguards be implemented, Specifically. section 34-36-6, In pari, stall'S: 11) The CollCCl lon ol samples ~hall be pcrlormed under rt!Monablc ~n d santrnry concll t lon~; 121 Som,)lcs shall be colh,lCted and [e'§[ed wllh due reg.lId 10 Iht pllvacy ollhe indivldUill Ix-Ing lestC(!, and In a manner ICJsooably Cdlt:ulau.'d to prevent substiturlQtlS Of Interference with the collect,on or testing of reliable ~mpk'lo;

131 s..nlllic collections shall be documemed, alld the documeniatibn lifO. cedure shall In-clude: (iI) labeling 0( Silmllll!~ so as 10 reaillrHi!)l.,. pmcludc the Ilroba. !)lI!ty 01 erroneous Idrnrl/lc'llioll of lest re~ulls: nnd Ibl an OllPOrlUnlt.,. lor the ern· 1)1<1)'j>e or Il,o~pect lve empl<1)'j>e to p!'ovldc ootl/lc~tion ol any In· fOOlliltlon which he: con~;dc~ r(!I(."v<Inl to the~, including the identlfiC;.llloo ol cUllentl.,. 01' ~ cefltl.,. used prescription or nonj)/l.'Kriptlon dfU~ or other relevant nl{'(hcal In form~tlon , (41 Silml)le collection, SIOI"ilIlC, and transportiltlon to Ihc pl~ce of testing shall be perlotm!:d)() ,IS reasonably to preclude the probabl!llY01 s,1mplc conlaminiltion or aduhl)f~ l lon; and (5) Samph~ tl.'Stlng shilll cbnform to sclentlflC/llly acccl)ted an~l.,.tl c;l1 methods and f)fOCedures. Testing shall include vcri/iC;lIion or (Onfimloil1ion ol any pas,llV(' tl~ re!iYh bt gas chroma· tOS(,II>'"')', gas chrom;llOg'Jllhv-mass spectrc&opy, Of OIller COmll,arablc reliablt! imal),lic;d melhod, Ix.o(are the resuit oi the tl."Si nM), be ur.ed liS a basis for Olny IICllon by Hn em ploo,ocr {lIl1owcd by the SI.1lutel.

Id. This proviSIOll essf!nl i(ltiy codifies wh"t milny profession:ll. bcll(."-1J to be prudent testing .:lfcguards. The Ut,lh stalule reQUlrcs Ihal em· ployers utilizing tcsting for drugs or alcohol dCYelop a wrillen policy. The emplqyer's policy, whi ch is nOt prescribed under Utah law, must be dlstri· butoo to emplo,"C!CS and be uavaHable for review by prospecti\<1l employees." Id., §)4·38-7(1). An employer In Ul(lh may u t ili~c drug lesting within a prOgrilm in connection with the folfl.M'lng specifical. Iy enumerall.>d circumstances: (1} <lcci· dent and workplace Ihelt, (2) itwcsliga. March 1989

tions, (3) suspicion of Individual impairment, (4) 3S a tool for Improving safety either as it il((ects coworkers or the general publiC, (5) for quality control IMposes, imd (6) for security reasons. See id. Thus, this pfl'lVlsion of the Utah statute codlfles the legltimatc reasons for which an cmpl(1)'l'C may be tested. The statute expn."'Ssly provides the I<JWful t~tlng "need not be IImit('d to cir· cumstances where there am IndicatiOns of Individual job-related Impairment of an employel!." lei., ;34-38·7(3). tt docs not, of course, make scnsc to limit an employer'S righ l lo t~st only when there arc obvious Slg.'ls 01 Impairment. V.lrious controlled substances have a variety of dmerent symptoms. and it is difficult (or iml>oSSible) for an untrained obscrvcr to identify impairment in cvcry Instance. Addi tionally, unilnnO\Hlced drug testing may h:wc soml! deterrent cfft.'Ct on drug usc. The UtMr Statutc Implicitly rejec1s Impermissible rea~ns for administering

drug testing. FQr example, an employer could not single out an individual for lestlng Simply because it th ought that employee wa s a troublemaker,- 1)lalnly, the Utah 5t.ltute does not provide a chilfter to employers to use drug testing for Impermissible motives. Obviously, the integrity of the urine sample used in a drug KOSI and adt.'qualc chain-ol'< ustody safeguards arc critical. AI the sample collection point, I1'IOSI lilOOr.ltories recommend a Nwimessed -..old," Thill Is, the individual belnglested muSI be observed so Ihat he provides a specimen of his own ~rine, liS opposed to I>urchased Ncleim" urine.' Likewise, the specimen must not be adulterated with chemicals or othc-r sW§lanCCS (such as Willer taken from a restroom lap or Toilet) which would Intedere with a tcst. UMh's sta tule rccognlzes these problcms In S;lmple collection and simply insists that employe<! pri vacy be al;l;ommodated to the extcn! possible.

Also, Utah requires thilt chaln-of· custody docurnell tation !xl maintained. Simply put, the speclnlen must be labeled upon collection and Its custodians Identlflt.'CJ from collection until lhe Conclusion of the laboratory analysis. Competent laborOi tOri~ understilnd ch;llo-ofcustody requlremenl and Me wellt:!quil>PCd to pr'OVlde prOpef documenta· tion through the process. This proviSion, as a plilctic(l1 mailer, may deler all bu t large eml)loyers (such as thoS(! with in· house nurses or physicians) from Inlern.llly ndmlnlslcring iI "ki t" screen. Utah also recogn ize$ the problem of cross-reaclivl ty. FOr I!X.lmple, some nonprescription pain ~1i('VCrs al>l>3fently rcsult in a false positive teSI for cannabinoids on some versions of the EMIT test, Ukt.'Wise, an emillaycc may 00 IilkIng I!!gltimately prescribed mcd lcmlon thm would Inclu<le one or more can· trolled substances. In thm CVCI'lt, the employer may nOt Wiln t to Impose any

Supreme Court Of Alabama

-Notice-

Order

The American Blind lawyers Association assis ts law students, lawyers, judges and o ther legal profession s in meetin g the special challen ges crealed by visual imp ai rment. The association acq uaints courts, law school ad missions offices, bar examiners ond Ihe bar in general wi th Ihe man y ways in which visually impaired persons can go beyond mere coping to 0 successfu l career in law. Where special needs appear to create confliClS with es tablished pract ice (su ch as use o f tape recorders in court), it advises concern ing possible sol utions. "Wa r stories," practice techn iq ues and informill ion are shared abou t the lotest ildaptive technology; In short, it hilS the same ma jor goals as an y o ther b ar associa tion - i mproving th e com peten ce and success of its members in the practi ce of law. Jf you know o r a b lind or v isually impaired at· tomey or law student, please make him or her aware of the associatiOn and its possible benefits. For more Informm ion, please wri te:

WhereilS, the B(wd 01 Commissioners of Ihe Alilb.lma SI~IC Bilr has recommended celMln Mncndmcl1Il to the RuIL'S 01 Dlsclplinilry [nlorce· menl; and Whercas, Ihe Coufl has cfln ~ldered the 6o.lf(I's I>ro~ ~mcndmcnt;

It Is, IhelefOfe, ordered thill Rule t(a) of the Rules

01 Oi!iCipllnMY EnlorCffOCl11 be arncl1d('(lto rcad follows: "All anolneys O'Idmilled 10 praclice Iilw rn Ihl~ ~I ale, Including district ill1ollley~ , M}i}Mnl dlsllict allomt.>y!o, United Slares ~lIorneys, iI)siStllnt Unilt'!.l StalCs ililorneys, and the anorney gcneml, ;.,sl~l aru OnorrH!YS lIl!nCfill, and any anorneys ,pedally admiTted by any COUIt in Ihl~ STalC /or a Pillticular proceeding are SI,bicct IO.lhe e~clusive dlloCiplinary jurisdiciron 01 the Olsdplln.lly Boord 01 the AI<lb;ima SI<lle Bar, with rev iew by the Svpreme COUll of Alab.lmil, ~ Il ls funhel ordered that thi } a'l'lCndmenr wrll be elfectille Immedlmely. Torbert, c.j., ilnd Milddo~ , jones, Almon, ShOles, Beany, Adams, HouSlon, and Sicagall, )I ., concul.

ill

Robert G. Esd.llc, Clelk, Supreme Court 01 Alabama

American Blind lawyers Associa ti on 1010 Vermont Avt!nue, N W , 1 1100 Washington, DC 2000S (202) 393-3666 or 1-80D-424-8666

disciplinary measures, but it may desire, depending on the particular drug's ef· fects, to isolale Ihe emplO'y'C(! from known workpL,ce hazards or other eml)lCly(!es. Section 34-38-6 of the UtJh statute PI'(> vldcs thm any POSlli\E result obl.lIned on a uri ne screening tcst must be confirmed by a gllS chrom<ltogrilphy/rnass spectromctry ('CC/MS') tcSt or a comlKlrable substi tule !)cfore ar'ly ad~rse action can be tilken ag.,lnst an employee. EMIT ,lnd olher Inilial screening tem generally are determined to ha\IC accuracy rales in excess of 95 percent.· Thus, some "false po5i1i\ICS~ may occur. HOW\.'Yer, Ih<! utili· 2:<lIion of a confirmation test such as CC/MS vi rt udlly eliminates false positiv€!s.' The reported case law to dale accepts this al>Jll'Oach. Sec, c.s., NlUion,1/ 7rea sury EmplO'ICC!s Unioll Clrapter 168 v. \t)n R;tbb, 816 F.2d 170 (5th Cir. 1987), am. sranted, 100 S.(t, 1072 (1988). Some eml)loyers hal.1;l resisted the CC/MS test because 01 it5 relative expense. The decision, however, of the Utah legislature to require CC/MS before adverse action Is laken 15 il reasoned one. The statute {')t.

pressly le~ room lor "comp;lrable analytical methods" as testing technology imp~ while foreclos ing shortcutS which might be tempting to employers trying to reduce costs, The Utah stiJtute permits an employer 10 el(,'<;t the course of action to take with an eml>loyee who tests positive after the ((.><Iulrt'<l COr\flrmaUon test. The statute autho rizes rehabi litation, suspension, termination , refusal to hire or "othcr disciplinary measures in conforman ce with the emplO')ler's usual procedures. Including any collecli\o1! bargaining agreement:' Utah Code Ann. 534-38·8, Tile stiltute neither requires flOr prohlbil5 any of these actions but simply Indicates that the Kost result may be used appropriately In any o( these conle~ts, Correctly, the Ulah statute does not purpo rt 10 dictat!! polley for employe!"! or substitutc its provisions for those of a collective bargain. Ing agreement. Howt.'\I('r, if thc employer elects to use drug tl."Sling, the actions I)ft)o vided in section 34-36-8 are permissible, The Utah statute also prOY'ides certain protections (or an employer who 1m· plements a drug.testing J>(osram. First,

no cause of acllon ari~ against an ernplO)'er who (ails to test a partlcul3r individual or who utilizes a test that fails to detect the presence of a controlled substance within an empl~, Id., 534-36·9. Moroover, with respect to any employi!C action where there Is a claim of a fal se lest resul t, the Utah st.1lute (")!Jbllshes a rebu ttable preSUml)tion tll(ll the leSI result was valid as long as the sample was oblained and processed in accordance with the St.ltule, lind the statute immunizes the emplO'y'Cr (but not the Il'! stlng laboratory) from monetary damages if reliance on II false test result " was reasonable and in good fal th ,~ Id., 534-38·10(2). Llkewlse,tM statute limits the employer's libel and defamation lia· bliity to disclosu re of f~ l se test results with malice. See ;d., 534·38·11. Finally, the st(ltulc mllkes all drug and alcohol lesting communlcatlOIll confidential, and the results may not be disclosed (')t. cept In connection with an adverse ac· tion challenged bv an 1!m1>1O'y'(!e. Id., 534-38·13. While the Utah statute appears to be well-drafted legislation, there probably

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o..-."t,. ........ - . . _.. ~ ...... _oIltMo HW:f9o<loIIy ~a-

March 1989

are several ways the l:rw could be improved. Because the Utah stalUle is rel ;lIively new, passed In April 1987, no case law identifies llOssible weaknes~e~ In the sta tu te. HOY>'e\Ier, several gC!neral cr iticisms can be made of the U tah law. First, the statute ClCemptSall government emplar-ees, Id., §l4·38-2, A possible ex· planation for this may be avoidance of constitutional problems with drug testing wh leh arise In the public sector. Rather than si destel) the constitutional issue wit h reg-1m to state and loc,,1 cmployt.>eS, however, es peci~lIy co nsideri ng the number of safety .. nd se<:urity sensitive jobs Involved (e.8., firefighters, vehicle and C<tuipmen t operators, police), a drug-testing statute should contain prevision s ca.-ering these employees with dUll rllgard to constitutional con stra ints. Second, n statute of thi s nature must be absolutely clem as to the IItig.'l\ion exposure cruMOO or arguably c reatoo by its passage. The whole puq>OSe of a st.. tute such as this is to encoulage, not discourage, employers within the state to take reasonable steps to join In the fight aSilinSI subs tance .. busc. Consequently, eml,loyers must not Implcmcnl drugtesting program s in good f,lllh under the statule and then be saddlt.>d with costly and unfounded lawsuits. One way tl;l .Ip1)lO<lch this problem would be to <'XpressIy codify Ihe causes of action thnt could arise under the stMute and unequivocally el<clude nil othe~. Although the U tah WlIute treat $ thls iSsuC', it Is not COrllprC'hcnslvc. Third, the confidentiality concerns of employees tested should be addressed in gre.ttcr detail. The Utah statute seums to protect Cml)lC1y'ee5 against disclosure of test results only if Ihose results arc false. Id. §)4·38·10-11. It drug' lestlng stil tute should offer greMer protectio n of lcg ltlmate employee! privacy concerns, and th is could be done In such a way as to avoid unnecessary 1I11galion ri sk . As parI of such a con1deil tiaUty proviSion, a labor un ion's e1titlement to tesling I1!sults should be addressed, nnd the best approach probabl y would be sl mllnr to that wkell under the Nmional Labor Rein· ti ons Act, aUowlngdl sclosum only with th e con sent of the irldlvidual employee InYOlVl.-d.· A fOurlh suggestion with regard 10 improving the Statute would be to bellcr define the urine co llection procedur<'!S

The Alabama L.l ...... ycr

neceSS<lry for lesting. Empl~rs, on the one hand, need to know whal precautions arc generilily ;lcceptoo and lawful In mccting chain-of.custoo y requirements, 11Ild erl1pl~s, on the other h;lIld, should know IVha! to (>l<pe(t in what could be an embnrrasslng and dlstilsteful urine co llection elCpcricnce. On b.1lance, the Utah statule has much 10 recommend il. First and foremost, it rL'(lult(!S Ihnt emplCl't'lm who ulili1.e drugtesting prOgrilmS use tl.'Chnl{lues designed 10 Cilsure nccuracy and compliance with res ponsible, profeSSional Slilndards. Se<:ond , II limits the circ umstances in whi ch tests may be 3dministered to those whi c h arc legitimate and In the public interest. Third, It requires that employers who adOI)t a plan do so In writing and thill the 1)lan be communi cated to erlll)loytles nnd apI)lican ts. Fourth, It addrt.'SSCS the confidentiality of drug test results. Fifth, it limits an employer's U;blllty wh(>fe It has aCled in accord"nce with the stalule. The Utah sta tute, ha.Yevcr, docs not dictat e that every employer must adopt a drug-tCSting program. MoreoYCr, it docs not substitute Ihe Icgislatum's judgment for thill of nn erllplOyt'!r or the provi sions 01 a collective bargaining a gJ'!.'(!~t. Yet, its provi sions will eliminate many of the abuses associ ated with IrresllOnsible tes ting program s, yield morc f'('liabll! results nnd permit employers to addr(!Ss seriou s WOrkl)lace drug problems. The U tah slatute 15 II model which Alabama might respoll~ibly follOYl. It certain l y provides a useful starting poin t should till! legislature determine tn.,! this would be a fruilful area of sInt<.' regulation. •

nUSINESS VALUATIONS employce 'lOCk OWfitullip plaru r.c:qu iJ itiolll/di~Q tirure' ,lOekholder d iJpl:tel • ch.nt.ble

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Mitch ell

M ember American Society of Appraisers

Past ~idem-At.lnnUl Chap~r The Insti tute of Chartered Financial Analysts o

Court Testimony and

I.R.S. Experience

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the cornl)laints lha! exist. The purpose of

Michael A. Downes

thi s article is llW-fold: it will provide II basic overview of some of the concepts and elcmClllS of the Alabilnl<l Deceptive TrJde Practices Act and will encoul7Igc the usc of the Alab8mil Decepti ve Trode Practices Act as (In ait(!rn,uive to !raeii-

Introduction Consumer fraud Is "big business" In Alabama. In the last three yean:, the Of· fice of Consumer Protection has returned close to three (lnd ~ half million dollilrs in monies [<lken through decep1ive trade pmcticcs, Even this (lmount is n(l! <In accuraw gauge of the l)foblem, as thi s of· fice receives only a small percentage of

' ional common law actions. St(ltlj <lnd federal COllsumcr protection

statutes arc prcml!rCd on the concept that lillmess in the market plilce promotes the public Interest. Some lYtle of consumer protection stmute exists in all 50 states.

Basic(lily, these st{lMes (lttcmpt to prO-

March 1989

•

ra e ractlces hlbh businesses from laking adllanlJge of consumers and Inducing sales of p~ ducts and services through fraudulent or dccepliYC trade practices. These prohlbl. tion s ,.galns! unfair or deceptive trade

practices also are contained in the Federal Trade Commission's Act, which Clln be found at 15 U.S.c. §45 (1982). Many Sla1C!S copied the FTC Act In its en· tlrety, while nCillly aU states used the FTC Act as OJ model , The Alllbama Deceptive

Trade Practices Act was modeled after the TCKo.15 Deceptive Trade Prilctices Act, The I)rirnary intent of these consumer statutes is to promote meaningful disclosure. ConSunlCrs should have all

relevant and material information on which to base II decision to purchase II product or service These disclosure requirements 1I11a.v I ~e consumer to make an in!clliscn! decision concerning pur. chases. The st11lutes llttempt to put the consumer In i1 bel1cr, if not equal, baf8<linlng position. Ideally, we would hope that a seller would disclose anything thllt Is relevant to a sale; hoY.Icver, as Ihls Is not always the case, these decept i~ tr.de practices acts require relevant Info-matlon before a sale is completed.

Alab.'una's DCCCplive Trade Pr,lctices Act Alabama's Oect.'pllve Trade Practi ces Act Code o( Alabama, 1975, §-8-19-1, Ct seq., (hereinafter, ADTPA) was signed Inlo law In 1961. Alabama was one of the last slates to aC(lulre some type of decepllve trade practices act. The bill defines words and phrases, lisls specific unlawful trade pr.ldices, lists cxclT'pliQfls, aUlhori7es the il1l0rney general's ~nd district altorneys' offices 10 restrain the vioilitions of thi s act, authorlz.es theallornl'y general and di stri ct altof!lOYS to Investigate complaints and prohibited acts, establishes a stillulll of limitations, provides for {l pr!. Ville cause of action, ilnd lists the penalties for vloilltions of the statute. The Alabama Lawyer

Powers of Ihe allorney general 's and district attorneys' offices The ADTPA gl~ the anorocy general'S office and the district attorneys' offices various powers and duties, These offices can receive consumer complaints aod conduct i~t ig.1liQflS coocerning the al· legations received in the COml)laint, The ADTPA further gives the ilttorn(.y gen· eral's o(f1ce the authorily \0 st.>ek inJunc· tions and restraining orders, The S1iItUfO h<Js pr<Nided businesses with a safeguard wherelJi they are entitled to appear 00fore law enforcement officials before arly legal pnxl.!l?dings are initiated, This right, hOWC\ll!r; Is conditioned on the law en· forcement official's determin(ltion that the subject does nOf intend 10 leave the st.lte, to fCmcM! property tncrefrom or to continue conducting unlawful praC1ices. When the altorney general'S o(f1cc receiVt.'S a consumer complaint, a COIYjl of that complaint is sent to the busineSS alon8 with correspondence asking the business lor its position regarding the allegations and issues raised In the COIll· plaint , A large perCentage of the com· plaints received actually are not viola· tions of tnc ADTP..... The attornt.y general always allO'NS any business a reasonable opportunity to resolve the complaint before Initialing any further I)rocccdings or Investigations.

The AOTPA also authorl~es the Courts to suspend or revoke any license or certificate authorl1.ing a person 10 engage in business In the st<Jt!! of Alabama, Unlawful Irade pra ct ices Section 6-19-5, Code 01 A/looma, 1975, liSt$ and defines acts and prdctices which are specifically declared to be urll:rwful, The first ~n unlawful acts deal prinl ariIy wllh misrCI)rc5entl,ltlons as to the quality, Ingredients, labeling <lnd source of goods or scrvices. Specific el<.lmples In. clude: causing confusion or misunder· standing as to the source, sponsorship, approval or certifi cation of goods or ser· vices; representing that goods or services arc of a particular st300ard, quality or grade; representing that goods are Ori8inal or new if they are deteriorated, recon· ditioned, reclaimed, used, second·hand or altered to the point of dccfC(lslng their vallie, The st<llUte declares It 10 be an unl(fwful trade pr,lctice to advertise goods or services with the Intent not to sell them as <ld\.1'!l1ised. This sales practice is more commonly known as "bJlt-and·switch. Further, It is unlawful to ad..ertise goods or setvices without the intent to supply the reasonably expected I>ublic dcm(fnd, unless the advert lscment ~ spoclfic,llly disdosc limitations as to (IUantity avail. H

Mlch.lei A. Bownt'J, sem!r.11 counsel of the Alabama insufdnc:e DCp.'Iflment, $erved as an Alabama assistant allorncy seneral with the Consumcr Protection /\seney from 1984--89 (director of the asency for two and a h31f year)). 11f.> Bradullwd from the Universi ty of AlIliJ.lma in 1980 anrl Cumb(""and Sc:hool of L.11V In 1983.

"blc for sale. ThOllSh few COmpl<lints art! recei....ed concemlng lhis prac1ice, investigations have shawn that "bait-andswitch" practices iHe quite widespread. Section 8-19-5( 12} deals with affi rmative dlsclosull..'$ thaI muSt be mooe in certain circumstances. Individuals must Identify goods damaged by flood , W(lter, fire or acddent. If Ihey are d<lm<lged 10 the point of decreasing their v.lIue or if the goods are rendered unfi t for the or· dlnary purposes for which they were purchased. It is <l lso unlawful for <In In· dlvldual to ffiilke II falso or mlsle<ldlng statement of faa concerning the price reduction's amount, e1Ilstence or cause. Section 6-19·5(13) declares it to be unlawful to make lalse or misle<lding ~Iate-

ments of faCI concerning the need fOr PMIS, their replacement or rt.>pair service. This violation Is secn primarily and most frequently In automobile and home reI>alr fraud. Section 6-19-5(15} deals with odometer fraud. North Alabal'll!) Is one of the top nyc areas In the United 5t<ltcs for the commission o( odometer fraud. As odometer st,ltcments are nQYI rt.'<1uired to accomP<lny title apI)lkations on an amOmobile, in mOSI cases the buyer can determine an odometer roll back by obtilln· ing a title history on the vehicle In quesllon . Section 8-19-5(6) deals with fillse <ldvel1islng relating to 8oing-OOl-of-oosilleSS s.'lles. There has been a tremendous In-

StrategiesfurBorrowing In The Late 198Os.

Your client deserves the best possible defcnsc. And nsnn fII tor· ney, you should be spending )'Our ener· gics on legal mailers. nOi nnanc!'11 maucrs. !-low your clienll11iscs money {O pay you is;1 problem CteSl!If Mort· g.'l.gI! Corpomtion may be IIble to help resolve quickly and easily. If )'Our cliem owns real esUitc and needs 10 r:llse cash quickly,lm equity loan m:ly be II solmkm. \\e offer a rnngc of eqUity loans that will c()\'Cr most SiIU"liolls. And unlike m:myother lending i05lilulions, we muke looms Oll lt varielY of real estate propen ies-notjust owner-occupied homes. And bccliliSC yOur clIent mfly need help lit almost any lime of dayor night we're happy 10 help secure funds M n ifi t means VoQrking weekends Imd nfter hours. \\t= can also armnge" free seminar for you and othcrs in your pmc· lice. so you11 fu lly undersulI\d how ....'C can help. The Equity Finance Division of Cn:sWr MOflg:lge Corpomtion gives you the rc5()urces of II major equity lender with 23 offices across the Southeast. but wit h the ncxlbillty many major lendcrs simply can't provide. So cnll us whenever the need ~ rises. '«>u11 nnd that it pays.

--'*'-_ .. -

..... - . . . - -

cre<lse in Ihe use or distress sales to at· 'filct consume~. In addition to the ADTPA, which determines th is l)rilClice to be unlawful conduct, 5·8·13·1, el seq., of the Code of Aillbtlma, 1975, requlr(>s certain conditions to be met before an Individualls allQW(.-'d to advcrllse a distress sale. However; this statute Is e1I. emptL.od by any munlCip)1 licensing requirement with similar provisions. The Slatutc requires that any person planning to conduct a golng-out-of·bllslness sale fi rst must obtain a license JO (lays prior to conducting the Sille. This statuto CO'llCfS all distress merchandise sales and Includes fire $<lIes, adjustment sales, reorganizing sales, moving sales, bankrupt· cy sales, loss of lease sales, cle. Appli. cants for this licel\se also must obtain iI OOI\d. In a municipillity without similar licensing provisions, iln applicant for this license should apply!o the judge of prebme In the county in which the sale is to be held. The statute further contains CerM!n restri<:tions on the sale, store hours, additions to Inventory, advertising,. etc. Any party who plans on conducting a distress sa le should be advised to fol. low these statutory requirements. Section 8-19·5(18) discu.scs chain referr.ll I>rogfilms. While businesses can use referral plans Ihey cannot use tlx>$e referral plans il S an in(!ucem~nt to purchase. Sections 8-19-5(19} and (20) discuss pyramid organizations. The ADTPA declMCS IY)'ramid sales struc!ufCS to be iI· h~IPI ; hO'M."VCr, multilevel sales pl,lns may not be pyralrrids. The definition of it pyramid v.ules from state to slate. Section 8·19·5119) defines a pyrilmid as iI sal~ Slrudure, which Nincl udl.-s any plan or Ol>cratlon for the S<lle or distribution of goods, services Qr Other property. wherein il l>crson for consideration acquires the o!>l>ortunity to rocelve a pecuniary benefit, which Is based primarily upon the Inducement of additional persons, by himself and olhen, reg.lfdless 01 number, to participate in the same plan or operation, and is not prim<lril)' contingent on the volume or qU<;lnllty of goods. sclVlces or other property sold or dlslrlbuted:' The emphasis O( II multilevel sales progr.1m must be on the sale of a preducl or service aM not on recruitment of additional panicip.lnts. H(M'CVCr, the fact that II multilevel organization oHm a praduct or service does not eKl;lude the pesMarch 1989

slbllity thm It moly be iI I'J'rilmid silles structure. ElJCn the Infamous chain letters hiWC become legally sophisticatc.-d as they now offer some SOft of bogus prod. uct or servi ce. Often a detcrmin;lti on of whether a P'framld eJ<ists Ciln be made only aftcr clltlmining the aClual sales presentation. The "DrAA fu rther makes it illegal 10 misrepresent polCntlal earn· Ings .loci potential nlarkets for the sale of goods. Public pol ky deslgnatcd this type of sales prilctice to be Illegal because as pyramids grow geometrically, the market quickly becomes 5tItumted and consum· ers arc unable 10 recruit additional par· tlclpants and, in(!',itilbly, Ihere is a large class 01 consumerS who loses Iheir money. The lasl Iisled v olatlon Is iI broad dec· larillion thaI 11 Is unlawful 10 cngagl! in any unconscionable, fal se, mlsleadlr)80r deceplive aCI or prilctice in the conduct of trade or commerce.

Standa rds of unfairness and deception The terms "de<:ePlion" and "unfair· nt.!ss" are n01 defined in §3 of the AOTPA. Furtht.!r, unlike mOSt Slates, rim AOTPA

does flOt exp~sly prohibit "unfair" prac· lices. ""hough " Iabama coorts have nOI expressly equated the term Hunconsdon· able" with "unfair'; it is Significant Ihilt §8-t9-6, Code of Alaooma, 1975 dt.'ciares that, "[I]! Is th e Intent of the legislature that in construing Section 8-19-5, due considerollion and great weight shall be giycn where applicable 10 intcrpretations of the federal trade CO'Tlmlsslon and fed· cr.,1 courts relating to Sooion 5(a)(1) of the Feder;'!1 Trade Commission Acl (15 USC 45(a)(1)." St.'c tion 45(a){n states, "Unfair methods of compt.'tition In commeree, and unfair or deceptive acts or Pf,lClices In commerce are declared unlawful." While the lerms Hdccep(ion" and "unfairness" are nol defined in the FTC Act. th{'sc temlS have been Intcq>rcled through eJ<Iensive case law. Although the diffefllOce between deceptive and unfair practices lends to become soml'Whal con(",Sing. Ihc two standards are distinct. White a deceptiYe trade pr3ctlce normally is considertXI to be an unfair pfilctice, an unfair practice is not always, by legal definition, decepl ive. The unfairness doctrine Is pcwntial. Iy broader thiln deception and can be

used 10 teach conduct Ihat lhe deception st.lndard does nOt encompass. Trildltlonally, a deceptive act or pf3Clice has been describt>d as onc hilvlng Ihe tendency or cal>lIclty to mislead a substantial number of consumers In a material w.l'(. American Home ProdUCIS Corporallon v. FTC. 695 F.2d 681, 687 (3d Clf. 1982). Recently the commission has restaled Ihis st.mdard by describing deception as a HmlsfC1>resentation, omission, or othcr pracl ke that Is likely to mislead the consumer acting reason(lbly In the circumstances, to the consumer's detriment:' Committee on Energy and Commerce, letter to Hon. John D. Dlngell, chairman, October 14, 1983. One 1m· porlan! accomplishment of this restatement was to specifically include an admission of infOrmation ;IS a decel>tiYe t/'ilde pr.lCllce. Simcon Manascmcnt Cor· peril/ion v. FTC. 579 F.2d 1137, 1145 (9th Cif. 1978). The unf,Jirocss standard eslablished by the Federal Trade Commission pfOYides Ihe following crilerla for determining whether a business wactice which Is neither antl-competitive nOi deceptive Is nonetheless un/ilir to consumers; 1.

Don't let your Alabama Lawyers get worn, torn or thrown away. Order a binder (or two!) at $10.00 each from:

The Alabama Lawyer P.O. Box 4156 Montgomery, AL 36101 or call (205) 269·1515 The Alabama Lawyer

whether tnc practice offends public pol. icy; 2. whether II is immoral, unethical, OI>PresSive or unscrupulous; and 3. whether it causes consumers substantial injury. Th is crill!ria was developed and published In the commission's rclXlrt en· ti tl ed "Un !;] Jr ~cprlvc I\dvcrtislngllnd L.1bc1l118 of Cl8~rcl!cs 111 Rellllion 10 the I'/ell/lh /-Io l<1fds 01 Smoking, Statement of Basis lind PUipose,~ 29 Fed. Reg. 6355 (1964). The United States Supreme Court ci ted this critf.>fi~ w ith ilPP.Uent aj)J)rOval in FTC v. Sperry & Hutchinson Company. 405 U.s. 233, 2.4 n. S. 92 SO. 696, 90S n. 5, 3 1 LEd.2d 170, 179 n. 5. (1972). In Sperry & Hutch inson, supra, the Supreme Court hJS ap~ the FTC's use of a consumer unfJlrness doctrine not tied to the triJdilional componen ts of

deception. The commission, through its rules and decisions, has continued to reOne the unfairness standard. In a 1980 policy SlatCr'llcnt to Congress, the com· mission set forth the followlnH principle for Identifying unfair trade practices: '~ ..to justify finding of unfairness the Injury must satisfy three tests. 1\ must be substantial; it mu ~1 nOt be ou tweighed by any coun tervailing bcne(lts to consumers or competition that the practice 1>1"0duces; lmd it n\ ust be an injury tha t con· sumeB them selves could not reasonably have iI\1)ldcd •••• The Commission has attempted through this policy statement to provide greater certain ty in the apo plicJtion of the unfairness sti'l!ldard .~ The application of thi s policy stat ement W,lS first used by the FTC Ir\ /-Iodlcn Corpora·

I;on, 97

nc. 464 (1981). This tcst WilS

a l ~ applied in Amcrican Financial Ser·

vices v. FTC. 767 F.2d 957 D.C. Cir,

(1985). In American Financial Services, supra, the Coort further distinguished deception and unf,li rn ess when It held that, "[al practice Is deceptive when a consumer is forced to bear larger rl ~ ks thon ex· IXl(too, whereas a practice Is unfair when a consumer Is forced to bear alargcr ri sk than an e(ficiel'll market would require:' Curmntly. there Is no Alabama case law which allempls to define the term s deceptive or unfair trade practices.. The seldom-used ACTA has not d~IOpcd any relw,lIl t case law construing the sla· tute. Th e elements necl.~sa ry to constl· tute a viola tion of the ADTPA should not 00 confused with the elements required to prove fraud , I1S they differ ma rkedl y. There Is 0 plethora of case law Interpret. Ing and defining common law fraud in Alabama . The stalU tory vefinitiOnS of frauv are contillned In S6-5-1oo through S&-5·104, of the Code 01 Alabama, 1975.

Privale right of ac tion The ADTPA contains a priva te right of action under §8·19·1O, Code 01 Alabama, 1975. As the StMe Henerally enforces the consumer 1>'0 leciion act on behalf of large cl asses of consumers, it is Imtx>r. tanl tha t th is riHht of l)riv,'Ie actlor\ be available to any COnSumer. This ad 15 available \0 any consumer who suffeB monetary damages due to conduct whi ch has been declared unlawful by this act. Section 6·19·10 states Ihat if a consumer suffers monetary damages due to viola tions of thi s statute, thl.')' will be entitled 10: 1. any a( tual vamage sustained by the consumer or the sum of $100, whichl..'YCr Is greater: or 2. up \0 thr(l(! tim es ar\y tlCluol damages, in the court's v lscretlon; and 3. the court <IWi.lrd· ing attorney's fees in its successful action. If the coun fi nds that an action brought under this section is friyolous or wa s brought in bad fai th or for the purpose of harassment, the court shall award the dcf<!ndan's reasonable allornl!'(s fees and C;:OS' 5 inc;:urred defending the action. In· d udlod in thi s section arc the guidelines lor the coun's dc!crmln.ltlon of these damages. Section 8·19·10 provides procedures and requirements which must be fol· lowed when using !he ADTPA as the

March 1989

cause of olCIion. The aCI requires thai at least 15 days prior 10 filing any action, a written demilnd must be mllde for ~Iief upon thc ddendant. The claimilnt must be Identified and Ihere must be a reason· able description of the complaint, the un· fair conduct and the Injury suffert.'d. This dem;md must be communicated to any prospecliYe defendallls by placing It In Ihe United States mail. Any person who Jl!Ccl\lC$ this demand, and within 15 days of ddlvery milkesa written sct1lement of. fer, which Is rejeet(ld , may subsequently file this offer of S(!!llemcnl ilnd the plilin. liffs rejeclion theroof In iln affidavit. If the court nnds Ihat the offer of sculer'ncmt WilS suWcienl to compensate the can· sumer for their damages, the court shall not award ilny additional damages or at· torneys' fees to the I>Ctltloner. The demand rcquirement$ do notaPl>ly to prospective defendants who do not mainlain a place of busine$S or keep assets within the Slate of Alabama. Upon commenl;emelll of any action, the clerk of court should be Instructed to m.ll! copies of {lny filings or pleadings to Ihe office of thc attorney general lind to the local district al1orney. Further, caples of any orders, Injunclions or dOCfees which are obt.llned also muSt be forWilfded to these officials. Under Alabamis private right of acUon, a consumer n,av not bring an <:'I elion on behalf of a class. The authority 10 bring an action in a representative caP<lclty is limited 10 the oWce of the attorney gcneral "nd districl anonlCYS' offices.

AItOrn eys' fees In an altemptto encourago the use of the "DTP" as a cause of action, the st<ll· ute aWhorl1.es the court to ardor reason· nbte nllorneys' fees In a successful actiOn. The attornt.>yS' fees "",,,rdcd should be reasonablc and based on <In objective evaluation of the services reodered. Whi le conslderOi tion can be glYen to the actual amount In conlroversy, the attorneys' fces Me not del)Cndcnt on the aclual d(lm<lges suffered by the consum er. Many lawyef5 do not accept good consumer cases due IQ sm<111 damages, however, it is Importanl to remember thai the ~ason<1ble f~ that could be incurred in bringing an oclion are not direclly /'f!lilIed to the <lctual damages suffered.

The Alabama Lawyer

Alabama ilnd Texas ,ne among the few Slates thllt require a demand (or relief to be made to the defendant and a wrillen tendcred offer of senlcment to the aggrlt.'Vt.'<i party. Also unique Is the procedure allowed in the event the offcr is rejccted. tn Alabam<1, the offer may be filed and reviewed "" the coun. If the court finds thc offcr was sufficient 10 compensa te the aggrieved party, the court Is not allowed 10 award any <1ddi. tional damages, including attorneys' fees nnd cos ts, The courlS in Sl'VCral Jurisdicti ons ha'o1l held th<llthe aggrieved P<lrly's allornt.'Y's lees are not par! of the Injury suffered by the p<"1rty, il'ld therefore, In 00termlnlng thc reasonableness of a settlement offer In relation to the tnjury suffered, it was held that It is not proper to include attorneys' fees as I)art of the aggrieved parties injuries. Kohl v. Silverlake MOlars, Inc., 369 Mas•. 795, 343 N.E.2d 374 (1976), In Kohl, supr,l, the coun stated, Nit wa$ unaw;lre of any Incidents in which the words 'injury' Of, 'Injury actually suffered' ~re Intended l1t' the legislature to Include attorney's fecs,N 369 MilSs. <1t 801, 343 N.E.2d al 379. Exemptio ns <1nd defenses Section 8-t9·7 deals with persons and aclivities which are exempted from I~ ti8<1tion and prosecution under the AOTPA. bempted are any acts done l1t' the IlubUsher, owner, ~81!nl Or employee: of 11 nCWSlhlper, periodical, rOldio or televi sion slation or telephone cornp<1ny in the publication or dissemination of an advertlSCrllent, in which the owner or agents did not have ~nowled8e of the false, misleading or dCCCPliYe character o( the adverti§emllnL Insurance and b,lI1klng activity also is l!Xen1l>ted. There are $(,'\ICfill other exerTlptions, and the burden of proving the exemption Is on the person claiming 11. Section 8-19-13 Slat('S that It shall be a defense to any action brought por$uanl to the AOTPA, upon a showlngl1t' a preponderanc(! of the evidence, tlmt the in· dividuals did not kna'Mngl y commit My act or knO'Hlngly engilge in conduct whi ch vloill ted the statute. Elect ion An Importilnt consideration when deciding to usc the AOTP.o\ as the cause of <1ctlon is the election thilt Is rC<luirl>d

under Sectioo6-19-15. An eleclion to pursue the civil remedies prescribed in this act shall eKdude and be ~ surrender of all other rights and remedies nvailable ilt common IllW, by SI<1tutll Of otherwise, for fraud, misrepresentati on, deceit, suJ)jm:.>Ssion of material facts or frdudulem con· cealment arising out of any acl, occur· rence or transaction actionable undcr this act. This election is prob.1bly one of the reasons the ACT!¥. Is used. Statute of limitations and c riminal r.1mifical ions Section 8.19.14 establishes a statute of limitations of one year. No Klion can be initialed under the act more than one year after the person bringlnsthe action discovers, or reasonably should hilVC discovered, the decl!l>tivc act or practice. In no ~nl rnlJy III) IIctlor' be brou!:lht under this act four years from the: date of the tr<1n s.l ctlon giving rlsc to the cause of action, unless the contract or warranty does not expire (or more than three years. There also may be crim ln<11 ramifications (rom conduct which is In violation of the 5l,rtute. Any j)Crson who continuously ilnd wll1lngfuUy violl1tes the AOT~ shall be guilty of a Class A misdemeanor.

Conclusion The Alabama Deceptive Trade Pr,lCtlces Acl Is one of the marly remedies that is nvalillble to redress consumer fraud. In addition to state remedies there are numorous federal st<1 tules Ihal Oc<11 with specific areas. While federJI consumer protection Stillute50 ilre be-,Qnd the scope of these materials it is iml)()rtant to be both 3'Nare of the statutcs and Ihe remedies Ih;1t they offer. Frequently-ust.-d 51i1tutes Include the Fair Credit Billing Act, Fa!r Credit Reporting Act, Fair Debt Collection Practices Act, Equal Credit Opportunity Act, Truth-In-lendlng Act, Manguson·Moss W,uranty Act, Mall Fraud Statute, Unordered Merchandise Act and the Home Solicitation Act. When cvaluo1ling a potential consumer case, legal analySiSoften Is less reliable than what offends a person's sense of right <100 wrong. The ADTPA Is designed and seck! to promote fair and quick set· tlements and is a viable aite'llative to the more tr.tdiTionill common I~ remedies.

•

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by Andrew p, C.lmpocll

I. Introduction For i1lmost 11 ~t'intury or\(> of the most

Interference with Business the Unified Tort since Gross v.

fascinaTing and yet difficult areas of 10rt law in Alilb,un;\ has been that of inter· feren ce! wi th business .1nd contractual relations. In 1986, the Alabamil Supreml: Court, In GrOH v, lowder R(wity, 490 So.2d 590 (Ala. 1966), rendered the most

6RO?7

Iml>ort ant decisio n In almO$1 a ceMury

of confusing jurisprudence since the court first ft..'co!!ni l Cd a cau se of action for interference. The C()Urt In Gross can·

solidatro the pri.'Viously separate and distinct causes of action of Interference with contra ct and Interference with business \0 create .1 unified 10rt of interfcrlmcc

wl!h business or conlr<lctuai relalion$. In doing so, the court attempted \0 discard

"an outdated ilnd inco nslSUmt body of lilW;' 49-1 So.2d at 596, and create cer· tainty by sening forth 51>cclflc dements !1CCe5~<Hy to eSt<lbli sh liability of 11 third 1:I.... r1y for int ~n t lona llnterfcrcnce with the business dcallngs or re lations bet~en two olher parties. Yet, these reqllirements Included many of the same clemen ts of the old torts. A<:cordingly, the ca se law prior to Gmu ret"ins vi .. bility Olnd mOlY be authoritative Whih:! thtl objective In Cross may have been to end confusion and provide guid· ance, a (Meful ~ l1 fl lysl s of the new tort's cl~m ents and their application to specifi c contexts show thm great uncertainty still exists over the parameters of the tOrt. Simply put, th e court in Cross creOltcd a theory of liability which penalb:e~ some ilssrCssi\lt! business conduc t in ol free economy while legitimizillg o ther COrllpetitiw b('havlcr without any expl<lnation of the dlfferencc. This article will outline the histori cal antecedents of the ul"llflOO tori, review the general prerequi· siTes for liability establi shed by the Cross court ilnd tr;.lee their development in the I<lst two YC<HS since Cross. From this ilnillysis, the Mtidc will tll1empt to prOvide some guidance to the practitioner In prosecuting or defending claims for tOfl ious Interference.

II. HiS10ri cai underpinnings Prior to G rOSS, tWO separate torts ex· istoo, a...cry limhed tort of intentional in· terferen ce with an e~i sting contra ct and much bronder <llld amorphous tort of In· tentional interference with bu sin~>ss. The

tort of interference with contrilct generally did not exist exCel)l where .. lhird porty II) Intentionally or knowingly Interfe red with an existing employcr·Ctlll>loy....e relationship or (2) Induced a breach of a Icasc by coercion or fraud . The underly-

March 1989

Ihal hlndcl$ another In his !fade or ,1 livelihood is liable to an action (0( SO

breach of con trilct 10 recover his d<lm·

'S" An ImpOItol!lt case Illustrating the lorl

Relations: Lowder Realty

of interference with contract was lames S. Kemper and Co, Sout heast, Inc. v. Cox lind Associates, Inc., 434 So.2d 1360

(Ala. 19631. In Ihal case, thc defendant brokcr.lge (:0011);'111')1 Induced lilt! eml>lar ee of the 1)1;'Ilnl l(( brokerage (OI1lI>a I1Y to breach his noncompete agrcemcrl! with his employer and accept employment

wi t" the defendant. the defendant also illdu(l..>(i the employee 10 solicit customers of his former employer, (lnolhe' breach of his l.'fTIploymenl (lgrC(!menl. The court found 11\,11 thl'! ddend(lnt broker was lIilble (or cortiou~ lr1tcrfl'rcnce with COlllraCI. In direct contraSI 10 Ihis conSl(lcted lort, the tOI1 0( Interfet'Cnce with business enjoyed illl ilimosl uil l imilt'd dl.'VClopment, applying to a myriad of contel('~. The common law genesis of Ihe torI ""'5 derived from the 19th century principle of 5ubsril nlive due process Ihill a lX!rson's Iracie, proil.'Ssion or business was a prOperly tlghl prolet:I(.>d I1J' law from inlerference. The Alabama Supreme Court set forth this policy in Ihe case of SP':Uk5 v. McCrary. 47 So. 332, 334 (19081: "!nhc 1rld,vtdui\1 CltlfCl1, JS a necessi-

ty, mu}t be! left free to adopt Such ( •• 11. Ing. prof~sioo or tr.dc .IS m,lY wcm to him mOSt «)O(hKIYIl to rhat end. Wi thool this right, he CJnool1Je a froe man, This righl to choose one's (1111"18 15 esSCn!i~1 p<lrl of 'hilt Ilbel1y which is the obj I oI!1CM..... nmcnt 10 prote€;t; ~nd a (.IUlng. when (h()S<!n, IS.1 man'~ prOptllty ilnd righl. In nccewl ry con· s.equcn(c, an unlawful Inv.nlon Of or inTerference with Ihe pu~ult oIllrOSteSs of one's Irade. ~.on or buiineu Is a wro"1I for which In ilCtlon lies. He

Ing policy for this striCl limitalion on thc lort was found in Erswell v. ford, 208 Ala. 10 1, 95 So. 67 (l922) whe rein the .... Iabama SUI)fCme Court held that 1hc plaintiff, whose conlr,let was Interfered with, already had an IIV,1iiabie remedy In The

Alabama Lawyer

huldi!rlnll him ... .

This common law risht is in(orporared InlO article one, Scctloll 13 of Ihe Ala· b.1ma ConstitutiOn, which proYidl'S Ihal "e-.'CiY person (or any inlury done him in his l{1nds, goods, I>crson or rCI>urmlon should have remedy by due process of lilW.~ SL'C Ev,lns v. Sw.lim , Z4S Ala, 641, 18 So.2d 400 (19441. A slillUlOty basis is also Ala. Code §6·S·Z60 (1975) which provides a remedy for "unlilWful dcpriv,l' lion of or Interierence wi th" orltiS personality. In ill least one case, Mims v. Clti· l,ens Ballk of PrJllvll/e, 312 So.2d 3\1 (Alii. 1979), the AlabanHI Supreme Court almlied this statute as J bJsi5 for Interference wilh business, holding Ihal a bank's unl,l\Nful repossession of plalnll(('5 trUCk lottlously intC!rfcr[.'(1 wilh his logging busin~s.. Prior to Cro)$, only IWO l'Iements were requi red for a plainliff 10 establish a prima IJctc case of Inlcrfcre~ce with bu!.Iness '.In(! shift the burden to the defend. ml. First, the plalnelff was required to shCM' an Intentional act of affirmilllvc in· rcrference and some con~uell tiill h;um to the plaintiff's business. E.g., Purcel/ Company. In c. v. SPtlH8 EntefPfI5es, Inc.. 43 1 So.2d 515 (Ala. 1983); EV,ln$ v. Sw,l lm, 245 Ala . 641, 18 Sc.2d 400 (1944). The unlimited scope of the tM was found In ils prolCClion of all fJcct~ of the 1)lilintlfrs trilde, profes;ion .md bus.iness ;md not simply its relations with

third P<1rtil.'S. Thus. any direct interference with Ihe business created" basis for a prima faCIe claim. Orlce a prima fa de case was established, the borden of proof mifted to the defcndanl 10 prove Justification or pro-

Andrew P. C,mp)cll, a pM/ncr In the Birmingham (irm of Leitman, 5Ieg"/, Pdync & Cilmpbcll, P.C" 15" graduiJIC of Birmingham Sou/hem Col/c8c and thc Uni~r$r/y of A/ilb.,m" School 01 WW wllere IIc was ,1 member of Order of rhe Coil and the A/abilma Law Review. I-Ie Is ch,llrpcrson of /he 8u5incu Tor/s and Antitrust Secfion of fhe Alabama St.1le B,If and it member of the /)o.1rd of editors of The Alab,ln"t lllwye r.

prlely (or ils interference. Early Alabama cases indicated that the burden of proof Wil S on the plaintiff [0 show the Interfer· ence wa s wrongful, Improper or unjus· tifk>d; e.g. Spark.s v, McCrary, supra. The principle gradually developed, however, that justlncation is an affirmative defense to be plead Md proved by Ihe defendant. PoIYII!C. Inc. v. Ulah Foam ProcluCIS, InC.. 439 So,2d 683, 689 (Ala. 1983). As Judge Wisdom held in Thompson v. Al/slJW In· surance Co.. 476 F.2d 746, 748 (51h Cir. 1973), a seminal 5th Circuli case inter· preting the tort: "Justifi catio n (or Interference In Mother's business Is an a(flrmatlve defense and is no PMt of the plain[iff's case. It is Ilnough [0 allose and PI'OYe the COIl(llIct ln effeclleavlng the de(en· dllnt to lustlfy, i( he clln." W hat con stituted justificati on prior to Gross was never (lilly defined. The subjective n<lture or thi s standard of propriety when applied to c()mpeti l i~ tlCtScreatM immense problcmlS for defendants, l><Ir· tic ularly since the supreme court had held that Justification was a question of (act to be determined by the jury. Gen· erally. In lis C.1 5e), Ihe COlirt distinguished incidental harm to the pl<lintiff's business resulting from the natural wo rkings of competition, whiCh were permissible, (rom affirm<l tive intentional <lcls laken out of iI mo tive 10 Injure the plaintiff's bu siness, whi ch .....-ere tortiou s. As to the second and third elemenls of knowlnsand Ir\tcr\tionallntcrference, the Cross court apparently retained these prerequi sites from the old c"usc of action of interference wi th bu siness. This

W<l S app<trent in the recent decision of

Bear C".'ek. Enterprises, InC. v. Warrior & Gulf Ntlv. , 529 So.2d 9 59 (Ala. 1988). In that case, the court reaffirmed prior law (e.g., AlII. Power Co. v. Thompson, 278 Ala. 367, 178 So.2d 525 (1965)) tha t <l third party'S refusill to deill that d isrupt$ the plaintiff's bu siness relation, as o p. POSM to an £lctive Inlc rferer\ce, Is not £lC· tlonable. In reaching thi s l'CSult, the court relied on Rr;>sralCmr;>rll (Second) of Torts §766 and comr\len ts which validn te refusa ls to deal to reJc h ils result. Given the court's adoption of the Restiltement in CrO$$ and Bcar Creek, practitioners should become familiar with Restiltement, §§766--767, on interfcr(m ce, ,mel particularly §§768-i74, which Identify spcclflc examples of justification. To the extent a party can fi t Its acu within one of these example s, It may gain accept· ance by the supreme courl, With re51>Cd to the element of Justifica. tion, the Sllpreme court c reated more uncertainly [han ci<lfilY in CroH. While [he court listed <lbsence of justification as {lne of the elementS of I)roof, the COurt staled In a foomote that it 'M'I S retaining the princi ple that justification WJ San af· nrmatl~dcrense to be plead and prcwecl by the defendant. 494 So.2d at 597, n . J. In the same footnote, Ihe court re[lffirmed prior law that justific<ltion normally would be a question for the jury. The court Ihen adopted the Rl!stamment (5t'!c:o nd) of Tort s § 767 ('979) balanci ng test for il jury to determine justification based Of) il con sideration of factors, Including (1) the nature of the actor's conduct; (2) the actor's motive; (3) the interests o( the

other with which the actor's conduct interferes; (4) the Interests sought to be advanced by the actor; (5) the social Inter· eSls In protecting the freedom of action of Ihe actor and the contr<lClUal interes ts of the other; (6) the proximity or remoterless of the actor's condu ct to the inter· ference; and (7) the rel<llion s between the pnrtics. A criti cal revl(W of IheS<! fa ctors reflects Ihat this balanclngtest of cOrlslderations (1) muddles the law rather than giving any certainty to th e bar olld bu si· nesses as 10 what consti tutes legltlmate business CQndl.lct (lnd; (2) may turn the issue of justification into a subjecti\IC v;.lue-<lrienled dt.'ci sion based on a jury's rough MtlorlS of ftllmess iI ~ oPPQsed to a determination based at least in part on some objecti\IC cri teria. Arguably under thi s test. the most important (eature, as with the old law, will be Ihe Intent or moli\IC of the actor In carrying out the <lllesed interference <lnd not whether the act Itself Constitutes v,llid bu siness com· petition as opposed to wrongful behJ'lior, In subsequent decisions after Cross, the Alal1<1n1a courts hilVl' t!!ndl>tl to pl ace the burden on the Illaintiff to pl'O\lC absence of Justification . In Finley v. Bev· erly EnlCrpriS('s, In c., 499 So.2d 1366 (Ala. 1986), the defendant nursing home adopled th e PQlicy of not allowing nurses whom it had prCYiou sly d lsch<lfged to work as priv<lle nurses to patients ilt its f~ Cility. While the suprl)mc court reeogniu.>d th<lt thi s con stituted <l potenti .. 1 interferem.:e with the relationShil), the court held Ihal the plaintiff had no t "produced a scintilla of evidence to show thJI

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March 1989

there w,u no justification for BeYCrly's policy Ihat discharged 6everly's enlployecs may not re-enter the premises to work as private duty nurses." 499 So.2d at 1368. In Birmingham Television Corp. v. Derilmus, 502 So.2d 761 (Ala.clv.App. 1986), the court of civil appeals emphasized that plaintiff had failed to prove an absence of justification (Of Interfering with a former empl<¥.>e assuming a posi· Tlon wiTh 11 compel lIar. Id. a! 765·66. While the court in Cross left unclear the scope of the Justification defense lind thc l..... ldentiary stJndards for establishing II, subsequent C4Ises have shQY.<n that with thc demise of The scinti lla rule and the question on the borden of proof, justlOcatlon may be rllore of an al>proprlate issue for summaI')' judgment. See Finley. supra; Dunn/valli v. 8i-State AUlo PMIS, 851 F,2d 1575, (111h Cir. 1988), Indeed, what could develop Is an evldentiilry standard akin to federal discrimination clllims where (l) the 1>laintiff has the burden 10 offer proof allhe four olner elements of actionable Interference; (2) the defendant Ihen must articulate Or shOYo' soml! (,.... iden<:e of Justification; and (ll the pial I'll Iff, In turn, must prO\lC that the Ilrt1culated rationale is preteICtual for an Intenl or motive to hilrm the plaintiffs business. This evidentiary stillldard would be more consistent with the em· phasls 1)laced 11)1 Cross and its rx.odigree on thc actor's motive in effecting tht'! alleged Interference, while IIffordlng real protection to iI defendant's aggressive but lawful acts.

IV. Consp iracy to Interfere The limitations imposed by Crou a~ parently did not affeo the availability of the separate tort claim of conspiracy to Interfere with business or rclation s. PriQr to Cross, the supreme court held tha t if two or more persons planned or partido 1><1100 in an actuallnterfcreoce, they 'M!re liable for the separate tort of conspiracy to interfere. E.8., Purcell, supr" at 527. Unlike traditional con~pi ...cy law the essence of tort was nOt the conspiratorial agrcement but the Inter/erence carried out as a result of It. W1:hout the elemt!r'lts of the underlying tort, I.e., actual inter· fereoce and damage, the claim failed. Id. The supreme court in Fosse" v. Davis, 531 So,2d 849 (Ala. 1968), held this claim for conspiracy is still av.lilable if a party establishl.'S thl,l Cross elements and shOYo's by circumstantial L'VldenCEl tha t other IXIliles partlclpML'd In an agr~ mentlO effect the interference.ld. at 851.

V, Conclusion Critics with some justification haYe argued that a lort of Intl,lrfl,lrence with business relmions nOt only Is tOO vague, but fundamentally Inconsistent wilh an economy founded on frce and vigorous competition. This difficulty of f'OConcilIng a tOft of Interference with Ihe competitive order in the Uniled States becomes nlore acute when the defendant comllCtitor Is required to prO'lC thm his conduct was Justified under some undefinl.'<I subjective standard 10 be submit· ted to a jury. What Is fundamentally dear frOm Cross and its prodlllY is that the brOad clemen!s al lhe new lorl sketched out 11'1 Cross need svbSlantial "fleshing our" and clarification, particvlarly on the JUSTification defen~ if businesses arc to be afforded Thc certainty promised, but undelivered, by Cross v. l.owdcr.

•

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The A/.1b.:tma Lawyer

Building Alabama'sCourthouses by Samuel A. Rumore, Ir. sile in lawrence Coun ty. Two communi.

The following conlinues a histoJ of Al.tbarna', county courthouses-IJttolr orl· gins and some of Ihe people ~ho contributed 10 their growth. Th~ (4 1"b"nw uwyrr plans 10 run om~ cour,~y'~ ftory in each iSSue of Ih ~ mag<lZille, If you haye M y phol08raphs of early or presenl courlhouSCi, please for .nd them to: Samuel A. Rumore, J Migllonlco & RumOI 1230 Brown Marx To

8irmingham, Alabama 3 :.!Ol

Lawrence Count y Lawrence Counl y was 1'.11('(1 by the Alabama Territorial Legis Hm' on Ft'b· ruary 4, 1818. It was Mm I for ('.ll)l.lin laml,.'$ Llwrence of the Unit(>d 'it.lll·\ Navy. Captain I1lwtence h.1f1 Inulthl in Ihe WAr with Tripoli a III rtw W.lr 01 1812 . He is most rem Ib<'fI'(l ,h tht' commander of the "C 1""pt'.lk(·," On Ju,le I, 1813, he was m ft.llly wound,od In a battle with the Bri \h. A, hi\ ml'n carried him into the h d of hi\ \h,p ht' said 'he famous words. IIMhll11'r 'til ~t1l' sinksl O.,mn il all! 11'1 KiVl' up Iht· ship!" The earliesl couney ',II of l.lwft'n(l' County was located ~ M<'lton\ Bluff. This area was at the he I (lltht' rlk Rlwr shoal$ on the south ba k of 11rl' It'rlm· ...

ics. Courlland and Moulton. immediilte-

!r Incorporated In order 10 have an edge 8

gral>hical center of Ihe county. CCilUse of its name, many people be-

~('('

lie

.10

ty at of lilWrcnce County. This Is not !rut'. Courtland r('Celved Us name from 11'11' niled Sl11tes Land Office and Fed·

RiV('r. It W.I\ nilml'(! for lohn Ml,I!UI1, lrl,hm<ln who hdci molrr«od ol Chl'rok('(' womdn ilnd dnhl\\I'(j ,I forlU!1t', It" por!("(lIy by robbin!! ..eUlel' 1},\"~l nlt th..: bluff on n.l1bo.lb. Ilr (Quid bl' C,llIl'(l .m AI,lll.UIl,' "riwf plr.rt('." \Nith hi~ hOllty h(> I'xlllKht IlUnWt(lll\ .. laY(''' ,md l,\t.lbll.~hl"(l

that Courtland W<lS a former coun-

{'I.rl our! which had been esta blished tht·"·, HCM'(.'VCr, In laler years the legisI,\lurl'

and",cd

.1 t,lV('tIl .

prollolt

court be held cill;h nlOnth In

A/tN hi~ cleMh in 11315, MI'l1l1n\ I.twlll, pl.Ult.Jtion ,ll1d .. I,M'" wcrt' purdl.l'>l'll by Andft'W JiI,k'iOn. Iillk\oll .md hj~ .l\<;()ci,lll'~ thouKht lh.,l ·twy (ould (>~t.lbll\h .1 town al ,I point .,!xM.' the o,ho..ll~. Till")' I.lid !lui ol "Min "'Il'l·t 011 ,j lin(' IMI.lllel with thl' rivt.!r bluh. A 1.JIRe tily, which Wolo, to tx· c.Jlled Mol'ollhon, W,l\ pl.lnn('(l . Ihe li"t record('(! court (,OfM'nroln i.Jwrt'ntt' County ~t Ml'iton\ Blui( (In AuRU\! 24, 1616. T'1I' IIonm"bll' 011<1di.lh lon<"o pr{'\!dC'd. ('OUIl "" .. ~ion~ ,11'>0 IlImml'll( 1'(llhl'I1' OIl N(,M'mbt'r 5, 1819, .IOd h'bru.lry 14, 1820, A.. in mo~t countlt'" oi AIJh.un.I, the ~U(' of ,I pt'fflhlfll'nt u!Unty ,,·.It W," .1 qUl, .. lion of K'..:.It polltil.II impurt.r nl t'_ On DI'U'mlx'r 4, I!llq, tt1l' rl'rritori.11 ll'KI~I,llUrl' pa.,!>('C! In ,Itt ('lllhlK for ,1n dl'ttioJl of five wmml!><,lon('" who w(Juld (h(lo'){' the l)(:ffllJn('nl county \Nt

Courtl •• d.

________+_____. r_ Samuel ~. Rumor Ir., i~ <1 8foJduiJlt' the University of li/otff' Dame .md the University of ~liJba m,. Sc I l.1w. Ill' served as founding ~m"'In (the ~labam.i1 Slale Bar's Family Ion lind 1$ In pracrlce In Birmingham wilh the firm of Miglionico &. Rumore.

the sclccllon. The commissionerS

c ose Moullon, the ilrea CloSl.'S1 to Ihc

that one session of the

TIlt' 10 nth session of Ihe cireui! court

ofl'lci,llI convened at Mehon's Bluff on AuHU\! 1 , 1820. 'I immediately ad-

lourntod I order to meet Ihe next day at my seal of Moulton. In splle

Ilw rlL'W (

of Andr Mclron'~

Jackson's expe<:lallo ns, B ff m,W f succ~ed as a

town. ,md M.I alhon nt!Vt'r materialized. Tod,lY tt'll'rt' d nO remains of the pl';lI:e .l~ the .Ul'd I~ n<k!rneath the Willers of the T{'nrll'~\I,,(' River. Mmy pl.K:(! In Alabama are n<lmed for W,Jr ht·"I1,.... ;rhe tONn of Moulton was n.lOll'd (or L eutenanl Michael C. Moul· IOn of Ihc r iled Stille5 Army who was klllt>d .It the baltic of Horseshoe Bend on M;lfCh 27, 18 4. It is Interesting to note In l),l\~lnK IhJt the two other officers who (Iit'lI.lt thl~ h. nle illso h",1C county seats n.lml'll (m th I. The city of Montgomery W.I~ nanwd r Miljor Lemuel P. MOn!' ______________ tlommy,- .md SomQrville in MOfgiln County was nilml..'CI for Lieutenant Raben M. Sunlmcrville (Somerville). The Orst courthouse In Moulton dated back to 1820. It was a log building that had n (ence around It; In 1859 this pioneer Structure burned. O n AI)rll 4, 1859, plans were made for a new counhouse 10 be completed by Marc h I, 18&0. When constructed, this new counhQ4.J$Cl was 54 feet $quare, two stori(!S high and built d brick. II was tOI>l>Cd by a cenlral tOW'Cr. The building had lwo large offices, two small ofl'ic(!S, two jury rooms and a courtroom. Pend· March 1989

Lawrence Coumy Courthouse ins its construction, chancery court was held al the office d H:lnscll & CI,lIk,;'Ioo rhe circui t court convened at the Bal>tist Female Institute. During the Civil War the building WilS used as It hosplt<lI . The third and present M oulton Court· house replaced It. predL'Cessor on the town square In 1936. The Mchltt!(tural (lrm was Turner & Northington, and Ihe contractor was W.e. Chambers Construe· tlon Company. The building cos t $450,000 and WJS financed by a special t3K used to payoff [l bond Issue. II was constructed in a classic revival style of limeslone from the quarries ncaf Ru~sell · ville. This Structure serves the coun ty to Ihis d:lY. In closing, It Is fining to quote the inS(riplions on the entrances 10 the lawrence Coun ty Courthouse. They Jrc an inspiration to the 1>C01>le of Lawrence Coun ty and to aU people. Over the (ronl entrJnce arc the words, "The Clcrnallaws of justice are Our rule and our birth· right"-Burke. And ~r Ihe rcar entrance are the words, ~ Let us rcml!f1'lber th;lIju~ lice must be obsef'ved cYen to lhe lowes!"

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Providing rapid, expert, personal service when it counts .. quality structured settlements. Our frc c services are unm;llched in lhe industry: • • • •

annulrY<luOt,u ions In writing within 24 hou rs personal as.o;lstance at scttlement conferences coordinatio n and complet iOn of selilemct1 t docume ntS in·d cpth seml nars ror yOur Staff llI!GtONAI. OfftCfS NA T10NWlOIl 8laMlN(i tl.Ul O ffICII-G KEGORY MO UtNSON l Mrlro plrx OrI..., · s..II~ 1' 1' Klrmlnfl/um . AI. ' ~,~ lO~ 'H70 ' 0944

CORJ"OItA.TI! lilA 1)(,) UA KnItS Ikn..."..Cok>ndo

I • tlOO · 3'4 o.4{I'}H

• 91

Recent Decisions by lohn M, Millin&. Ir., and David B. Byrne. It.

Recent Deci sions of the Alabama Court of Crimina l

Appea ls State canno t force driver to submit 10 c hemica l te I Thw.ver v, Stolte, 8 Div, 962 (No-

-...ember 10, 1988 ~Thl s case presents tin Issue of first impression in the State of AI.,barra, I.e" whether or not fC\lCrsible error occurs when a defen· dMI Is forced to submit to a cheml· cal lest dc)lgnalcd by a law enforcement agency O'v'Cr his objcction and refusal. The evidence at trial demonstrated that Thrower was PrOpt!rly placed under lawful arteSt and transponed 10 police headquarters and then to the

Guntersville Emergency Room, AI the emergency room, a blood sample was t<lken at the direecion of the police of· ncer and after lhe defendant had twice refused to submit to the test. A unanl· mous court of criminal appe<lls re-...ersed and remanded the case lind held that the trial coun commined rt!Vl!rsible error in ildmining the blood 5aml)le into evidence over the obJection of the (lefencLlnt. The state SOUghllO uphold the seizure ba5Cd upon lhe Alaballltllmpiled Consenl Acl, §32·5·192, Code of AI,lbama (1975), and Ihe United Stales Supreme Court's decision In Schmerbe,v, Cali/orni{l, 364 U,s, 757, 66 S.ct. 1626, 16 L,Ed.2d 90B (1966) , Judgc lYsOI\ focused the issue as follows:

O;w;d 11 Byrnc, ,r.,

John M , Millins.

Ir., is a member of

Is a sraduille o( fhe University o( Ala· bama, where he received bofh his undergraduate and

the firm of Hill,

Hili, Carfer, Fran· co, Cole & Black in Montsomety, He is II: SfaduJte of Spf;ns Hill Col/esc and the University of Alabama School of Law. Milling COllt'rs the civil portion of the df.'C lsiOM,

1,1W desrces. He

;$ OJ member of Ih('

MonlSOmcry firm 01 Robison &- Belser

and CoveN the criminal porOon of the df.'cijionj,

" The SlIncllon UrldCf AI,I!),lma law (§J2·5·1921 Is If a person refuses upon propel requ~1 01 a law cn· fOI"Cf!menl affirer 10 ~ubmil 10 a chemicallCSl, 1ht.'Il weh triJ5o'I1 may be placed In evldencf! allriat and apptOprtale action laken 17( taw co-

Iorcemt!nt agencies with reference to the party's privilege ol driving a motor ~ide upon lhe public hlgll. ~.

HCM'e\'ef, the Atabama slatute Is clear thaI 11 law (m/Orc(lmen( ¥rJCy doe~ rIOI h.11'C fhe rlSh(, "fier refus<II by the QrfC51Cci Pollfy, 10 go forwMd wer their fefus,,1 anci I.l~e /I blood SlImple,~

The itPpelliltc COurl, relying upon the ra tionille of the Suprl'me Court of Alaooma In ILlW v. Stille, 513 So.2d 24 (Ala, 1987), ruled that ~Ihe appropriate saf'IClion Is to place weh refusal in C"Ii· dence, and the Director of Public Safl'ty, upon prOI>er certinciltion of such refuSi\l, Shilll suspend Ihe P.1rty's license to (lrive,"

Recent Decisions of Ihe Supreme Court of AlabamaC i vi J

Constitutio na l law , . , contMclunl provisions which de ny common.law nlarriages

same status as ccremGnial ones are void as ngainsl puulic policy

March 1989

SCOIt If. Boar(/ oITru5tres of the Mobile Strumshlp Associarion, erc., 22 ABR 3941 (September 23, 1988). Plaintiffs were purported to be common·law spouses. Jack Scan worked as a longshoreman and W,lS a member of a plan tha t provided group health In. surance to its employees and qualified dependents, The plan only covered spouses of employees who had entert'(j into {I ceremonially solemnized miltria ge. Louise Scan Wed a claim for medical benefits, and the claim was denied bcx:ause she was a common·law spouse, Plain!!ff contended infer alia that the plan's ~Iusion of common·law spouses violated the public policy of Alabama. The federa l district court upht!ld the plan admi nistrator's denial of the clilim, and plaintiff appealed to the Elevemh Circuit. The Eleventh Circuit certlflnd the Que5tion to the supreme court. The supreme Cllutt held that conlrac· tual pr<wlslons denying common-law marriages the same Stalus ilSceremonhl lIy solemnized marriages are void as viaIilti ve of the public policy of Alabama. The supreme couf! noted that the tcrm "publ ic policy" d a state includes Its Constitution and SIilMes, and when they haYe JlOt directly spoken, then II includes the decisionS of the courts. The supreme court also nOted that It is well-settled In Alilbama that the courts recognize common·law marrlag~ as well as ceremonially solemnized marriages.

CourlS . ••

Ex parte Smith dislinguished in its applicalio n of §12·11·9 6c parte I.J:)frin, /1. IRe: Andrews v. I.J:)frin, Jr.,) 22 AflR 3888 ($cptember 23, 1988). Andrews w~s Iniured In an accldellt and flied a ncgligence suit againSI loftin In district court claiming $5,000. Sbc ye{lrs I{lter he moved to amend the complaint to raise the ad damnum to $10,000. The disrrct court denied the motion. and the ci'cuit court refused to Hansfer Ihe case to the circuit <:ourt pur· suant to §12-11·9, Ala. Cock (1975). On appeal, the COU" of civil a~als reversccl, and the supreme court granted <:ertiorarl to clarify the law. Andrews relied upon Ex parte Smith, 438 So.2d 766 (Ala, 1983), In thill case, the circui t court tra flsferred the ca:;e fmm district court to the circuit courl becauw plaintiff's damages exCet'(k>d the $5,000 The Alabama Lawyer

juri sd ictional amount, The supreme COUrt distinguished Smirh on the grounds th{lt Smllh was a delinue aellon and Ihe undispuled testimony shOoYCd that plaintiff's damages exceeded $5.000. whereas in this case Andre'M' aeUon is one sound ing In negligence where the remedy is merely monetary damage. The supreme court nored that It Is well-settled that plalntiH may forego his claim (or monetary dilrllilgcs In excess of the jurisdlcl lonal limit of the district COurt In order to bring his action In the district COurt . Since the statute of limitations expired on his negligence claim, Andrcv.-s cannot dismiss ilnd ~' e in circuil court, and his only mmedy is 10 limit his dam· age claim to $5;000 and remain In district court. Insurance ••• insurance adjusters' selliemeni negotiations do nol amounl 10 "constructive appearance" to prevent defaull We v. Martin, 22 ABR 3904 (September 23, 1988). FolI(lY.ing an accident. plaintiff entered inlO settlement negotia· tioos with defcr'ldant's Insurance adjuster. Plaintiff filed suIt, and service of process wa s perfected, No response was filed , and plaintiff took 11 default. Dcfend;lnt filed II Rule 60(b), Ala.R.Civ. P', motion (or relief from Judgment wUh a SUl>llOrtlng affldayit which statt.'CIthill the Insurance ildjustcr ilccidentally placed the summons and complaint In a bol( of dosed files, and they were nOl discovered until after the default, The trlnl court denied rhe defendant'S motion, and defendant al)l>caled. The supreme court rCVCrsed. Defendant contended tha t his Insurance adjuster's settlement negotiatiOns with th~ plaintiff ;amounted to a 'can· structlve aPlleiHanc;e' and this required 1>lalntlff to give him a three-day written notice under Rule 55(b:. Ala.R.Civ.P., before a hearing on the application for Judgment. The supreme COUl'l disagrl;'(.'CI and Slated that there Is no appearance unti1 some wriling has been flied in court 10 Indicale an Intention to defend Ihe ac· l ion. Settlemenr negOfi~I ions conducted prior 10. Or after, the dille suit Is filed can· nOl constitute an appeamnce to Invoke Rule S5(b)(2). The supreme court also held thai the trial COurt abused Its discretion by refu sing to set aside the default judgment,

Insurance ••• there is cause of action for " bad faith " in uninsured motorist context Sanford v. LIberty Mul. Ins. Co.. Supreme Court No. 87-301 (Na.-cmber 23, 1988). Liberty Mutual wa s sued for bad faith refusal 10 Investigate an unln· sured motorist claim. Liberty Mutu.lI filed iI motion to dismiss based on Quick v. Stille Farm Mur, Au to. Ins. Co., 429 So.2d 1033 (Ala, 1983) and subsequent cases.. Liberty Mutual cortcnded that Quick and Its successors held that Alnbama does nol recognize bOKl (Jith In an uninsured motorist con texl. The trial court agreed and granted the motion, and lhe dismissal was m3de nnal pur. suant to Rulp 54(b), AI/I.R.Civ,P. The supreme court rewrsed. The suprt!me <:ourt nOled lhal the trial COurt's ruling reflects a misreading of Quick and the other twO cllSes dealing with this issue. The court stared, .~ perceive no public policy rea son 10 distin· guish between a 'bad fJith' claim in an uninSllred motorist con text and a 'bead faith' claim in other two-party insurance Contexts." To the conlrary. the supreme court rcd~ned that the legislative mandate for uninsurt.'(j motoriM prott.'Clion enhances a publiC policy 10000ring such claims. Tort reform ••• section 232 of Alabama Constitu· tion limits applicalion of §6-5-430 (forum non conveniens) Ex pdfle Illinois Cen/ral Culf Railroad Co. (In re: Ke€ne v. illinois Cenlr;)1 Culf Railroad Co." 22 ABR 3966 (Septeml)cr 23, 1968).l'tltitioner, IlIinoisCenlral Culf Ra illtlad (ICC), l:>Ctil ioned Ihe supmme Court for J writ of mandamus ordering Ihe Mouile circuit court to l"lnt its motion to dismiss the acrlon pending against It, ICC was a Delaware corporation doIng business In AI{lbama. However, the accident happened in MiS1issippi, Jnd the plaintiff/respondent lived outside Alabama and all witnesses hved outside of Alabama. The motion to dismiss was based on §6-S-430. ;.Ia. CCKh! (1975), re<:ently I>.lSsed In lhe 10rt reform pack. age, Section 6-50430, AS amended, June 11, 1987, provides that the court may dismiss without prejudice any action against a CQrporiltion 11 the tort has iHi~cn 0\11side Alabama, and it is demonstrated thaI

a more appropriQle forum exists outside Alabama . The suit was premised on the Ft.>deral EmpIO)~t!o' Liability Act which allows suit in any counly In which the defendant doc! business. The supreme court denied the writ based on Section 232 of the Alabama Constitution. The supreme CO~1rI noted that Clion 232 provides Ihat a foreign corporation may be sU(.>d in any county where It docs business. The Alabama Legislature Is withoul l)OWCr, because of Ihe mandate of Section 232, to deny a plaintiff access to our courts and suit ag.l1nst fore/80 cor· poratlons. Although §&5-4JO "1>1>lies on its I.lce 10 foreign corporations, it cannot be given effect in light 01 Seelion 232, ilnd a foreign wrpora ti on may be $u ....od in any county where it docs business.

Worker's compensation . .. §2S·S·11.1 discussed Twillcy v.

D~uberl

Cooted Products, Inc" 22 A8R 4041 (September )0, 1988l. Twilley Wi:lS injured in November 1984, while \.\Qrking for Daubert He nlt."CI a wor~er'5 compens.l tion actiorl . In July 1985, he also nled a suit claiming hewJs "constructively discharged" In ret"llation for having flied the worker's compens.l. tion suil and sought compensa tory and punitive damascs. Daubert claimed th(lt he could not return to work because he did not h"ve a doctor's release, and that this WJSaSilinst comflany policy. 5e<:tion 25.5·11.1, AI". Coc/e (1975), effective February 9, 1985. provides that no employee Sh"l1 be terminated solely beC.l use he! has instituted a worker's compenS.1IiOrl claim. The! retaliatory di'" charge claim was tried to a jury, and the! jury found In his favor, nnding thilt he was Hconstructi~ly terminated," but also Ondlng that his \()rmlna tlon was 110\ "solely" OOc,ur$e of the! worker'~ compensation suit. The trial court granted Oaubcr1's JNOV and held there wa s not a scintilla 0( evidcoce to 5Uppon Twilley's claim thm the oor~cr's CQll11>ensation suit was the jo/c reason for his termination . "TWIlley appealed, ;lIld the supreme courl (cve~ed ,

The supreme court noted that S25-511.1 is remedial and, therefore, conStrued Irberally to effcct its purpose. According to the court t~ word "tcrm in<uIOll~ In the! statute Is broad enough to include a "constructive lcrmlnation.H

The supreme court also stated that an cmplO'y'CC may prOYe a prima facie case 01 retaliatory di schilrge by prl)'lling that he W,lS terminated because he filed suit (or wor~er's compensation benents. The burden then shifts to the employer to produce evidence that the emplO'yt!e was ter· minated for a legltlmnte reason, whereupon the employee must prove that the reason was not true, but a I>retext . The SUI>rcme court also noted th"t Twilley's CilUse of action for wrongfulterminiltion did not accrue until July 1985, eYCll though he wa s injured In November 1964. Therefore, Twllley can maintain th is claim und/u §25-5-11.1.

Recent Decisions of the Supreme Court of AlabamaCriminal Prosecuto r's improper closing argument Ex p."te Tomlin, 22 A8R 3929 (September 23, 1988)- Tomlln was convicted for murder and sentenced to deilth. During closing argument, the prosecutor m"dc comments on the defendant's (."III· ure to call his wife and falher and stilttXJ: 1he pollee haYe done II great job. 'Ale haw! blOught the case In here to you , The ",.15on yOu're still hcrt 1$ bK,use

the lud8t $dId wt hlld enoogh evidence lor YQU to vole 011. Now you h:we to dQ the duty thlll you an: chargt.'CI wi th." The defendant failed to object to Ihe remarks. Nevertheless the supreOlC court, in II per curiam OI>lnion , roYCrsed based upon the court of criminal a!>pcals' decision in Adkins v. SUfC, 38 AI".App. 659, 93 Sc.2d 519 (1956). In Adkins, the prosecutor S!3ted, inler .llill, "If the S!3tc had nOt made out a c~, the Court would hove ta~en it from the Jury . , , • " The Adkins coun held that the statement by the prosecutor wa~ prejudicial. Second, thc Court held that thc com· ment by the prosecutor rcg..lrdlng the dt... fondant's failure to call his wife, father and other witnesses was also error. At common law, one S!)Ouse wa ~ Incompetent to testify either for or <lg(linst the other. Holyfield v, St.1te, 365 So.2d 108 tAla .Crim,App.l, eM . denied, 3&5 So.2d 112 (Ala. 1978l, Section 12-21-227, Ccxk o( A/ab.una {1975l, has mod lned

lhe common law by providing that a spouse may elect to so testify. The spousc becomes competen t only·a(ter he or she hil S elected 10 testi(y. Therefore, It is error for the prosecutor to draw an adverse Inference from <I defend.mt's fail~rr(! to call his or her spouse,

Recent Decisions of the Supreme Court of the United States

Brady and its progency do not require slale to preserve evIdence absent bad raith Ar;zOlla v. YounBblood, 57 US lW 4013 tNoYet"r'Ilx-r 29, 1988)-00 !)OUce have a coostitulional duty to prescM (.",II· dence that might exoner~te criminal defendant s, and must lhcy use statc-of-theilIt technology in analyzing evidence? The Supreme Court, In a six-to-three d(."Clsion, said no. youngblood was convicted bv an Ari. zona jury of child molestation, S(')Cual as5.1ult "nd kidnapping. The ArlzOfla Court 01 Appeals revel5Cd his conviction on the ground th'" the State hnd failed to preSCf¥C semen S<lmples from the victim's body nnd dothing. The SUI)rerne COurt granted Certiorari to consider the extent to which the due prOCelS clause of the fcdcral Constitution requires the state to preserve evidenti"ry ma1erlalthat might be useful to a criminal defendant. The victim, a ten-yc.1f-old boy, wa s molest(.>d and sodomiz~d by a middleaged man . After the assault, \he- boy was taken to .1 hospital where a physician ultCd a SWilb frOm d "sexual assault kit" to collect semen samples from thc ba(s rectum . The police also collected the boy's clothing.. which they failed to refrigera te. A police crlmlnologistlmer l)Crformed some tests on the reet;!1 sWilb and the boy's clo thing. but he was un'lble to obtain Informat ion about the Identity of thc bay's assailant. /'oJ trial, expert witnesses testified that the defendant might have been completely eXOnefJted by timely performance of tests on properly preserved semen samples. Writing for the miljorily, Chief Justice Rehnquist said that the due process clause did not requiKl the state to Pr<'seM! the semen samples, even though the samples mlgh1 been useful to the defendant. The Chief Justice noted

"/IV(!

March 1989

Ihal only if Ihe defendant could show bad fa ith on the parI of tnc police would failure to preserve potenlially useful evi· dence conslltule a denial of due process. The Court observed thallhc fallul'C of Ihe police to refrigera te the victim's clolhing and 10 perform te5ts on the SCrllen SlImpies could be (iCS(ribed, OIl worst, a~ negligence, but 1101 bad faith on the part of the police.

failure 10 follow mandate of Anders is ~r se sixth <lmcndmc nt violation; Stricldand standard docs 1'101 appl y Penson v. Ohio, S7 US lW 4020 (November 29, 1988)-ls an indigent defendant denied his right to counsel when his lawyer refuses 10 nle an allJ)eal on grounds thaI it is (rlyolous and i'l cOurt acCt!pts the aUomcy'5 wi!hdr.IW.ll withoul requi ring a detailed cKplanation or appointi ng anolher lawyerl ApprOximately a quilr1er of a century ago, In Douglas II. Cal/fornia, 372 U.s. JSJ (1963), Ihe Supreme COUrI recog' nized Ihm the Fourteenth Amendmenl guarantees a criminal defcl1d .. nllhc right 10 counsel on a (irst appeal, as of right. Four years Imer, in Anders v. Cali fo rnia, 386 U.s. 738 (19&71, the Supreme Court held Ihill a crlmin.ll appellant may not be dcnic.>d repr~ntation on appeal ba§(!(1 on appointl!ti counsel's assert ion Ihal he or shc Is o f the opinion thai there is no meri t to the al>l)(l;ll. The Anders opinion, however, did retognize that In some clrcumSI:lnCCS counsel may withdr.rw wi thout denying the indigcnt appellan t fa r rel)resenl,l tion. provided that cerlain safegu.uds are observed: firs t, appointed counsel is required to conduct a "conscienlious eKamlnatlon" of the case. If he or she then Is of th e opinion thallhc case is wholly frivo loUS, counsel may rC(lucst leallC to withdrOlw. 5e<:ond, the rc(lues t mUSt be accomp.1nied by a brief referri ng to anything in Ihe recorti th at might arguably support the appeal. Once the appell.:ttc court rt.'celws this brief, illhen musl con· duct a "(ull CK.lmlrlatIOtl" of all of Ihe proceedi ngs 10 decide whethur Ihe case is wholly frlyolous. Only after th l~ ~epa rOlte inquiry, and only after the al)J)Cllatc court finds no non-frivolous issue for appeal, may the COUrl ptoce-ed to consi der the appeal on the merits wi thout the assistance of cOunsel. The Alabama Lawyer

Justice Stevens, writ ng for Inc Court, stated: "II Is dpparent that the Ohio Court of ApPf\lls did not foll(M'\he Anders IHocedlrrc~ when it IIr~nted appellate counsel's motion 10 withdraw and that II commI tted an 4.'YCn more K'rlous error when 11 failed to at~int new COUllsel after firldlng that the record sup. port\.'(1 5(M:ral allluab.Jy meritOfious groIrnds for ~'I d petillollt.'(s conIIlctlon and modification of his sentence." Specificall y, Justi ce StCYCns no ted that, first, counsel's motion to wlthdrJW was 1'101 supportl..>d wi th an Anders brief so Ihat tnc court was left w ithout an adequate basis for determining that counsel had performed his duly of carefully searching the record for arguable error and W.1S deprived o( assistance In the court's own J'C'.'lcw of the record . Second, the court should not have acted on the motion Ix,.fore it made its own examination of the record to determ ine whether counsel's evaluation of the case WilS sound. More Significantly, the COurl erred Iyt lai linglo aPI)Qint nCM' counsel 10 reI>" resent the pelltloner after derermln1rlg that " Ihe record supported sC\!Cral arguable claims." O rdinary traffic stop nol cu stodial

for purposes of Miranda PennsY/llania II. 8r(lCCr. 109 S.C!. 205 (October 31, 19881-Must police Inform SUSPI..'Cts of their MlrJnda rights before conducting road side sobriety testsl The Supreme COurl, In a seven-Io-two dl.'CIsion, snld no.

Richard Wilson & Associates Registered Professio nal Co urt Repo rters " Mildred Street M o ntgomery, A.l abama 36104

264-6433

In an unsigned opinion and without oral argumcnl, the Justices held Ihat a police officer In ~n§YIv.II1\a did not violate the rig hts of a motoris t who was stopped for questioning and was nOI initially given th e Mirand" warnings. The Justices relied on BcrkcmCr v. McCarty, 468 U.S. 420 (1984J In ruling that the drillCr's statemenl 10 the officer prior to receivi ng his Miranda warnings wa s ad missible. In 8crkcmer, the SUI)reme Court concluded that the "noncocrcl llC aspect of ord inary traffi c SlOpS prompts us to hold that persons lemporarlly detained pursuant to such stops arc not 'in custody' for the purposes of Miranoo." The Court reasoned th aI Bllhough the SlOP W,lS unqu!$tionably a seizure wi thin the mcaning of Ihe Fourth Amendment, such trJ lnc StOpS typica lly are brief, unlike the prolonged station house interrogation. Secorld, the Court emphasized that trafflc stops commonly occur In Ihe Hpublic vicw H in an atmosphere far less police.dominated Ihan that ~~rrrounding the kinds of Interrog.ltion which were al issue in Mir,lfld,l.

Rap e shield ruling denies effeclive c rosso(.'xaminal ion Olden II: ~nrl.lCky. _ _ lW _ _ IDt.'CC!f1lbcr 12, 1988J-MuSf a Kentucky man's sodomy conllicl ion be overturned because his Irlal lawyer was prevented from questlorl lng the allegl'tl victim of th e se~ual assault about he' living with another manf The Supreme COurl, In an e;ght-to-one decision, answered yes.. In an unsigned opinion, lhe Justices said that the question could have been crudal tO the defend'lIlt, who contended lhal he (IIld the woman had consensual se~ . The defcmd'lI1l sought, on crosseK.lnllnatlon, to PfOV(! thlll the WQman lied about being raped and sodomllL'd to maintain her relationship wi th thc man wi th whom she was living. The St'ItC court held that the crosH!K.1mlnation was prol>criy b.lrred because of its potential for preludlcr.!. The victim w~s white and the nlan sho wa s IIvlrlg wi th at the time of trial was black. The Justices concluded, ''I/tk find il impossible 10 conclude beyond a reasonable doubt that the restriction on petitioner's right to confrontation was harmless." •

Opinions of the General Counsel by Robert

QUESTION, " I am writing for 1In advisory o pinio n, pur$u.lnl 10 Ride 14 of the Rules of Disciplinary Enforcement, concerning the

ramifications of engaging in ciYil disobedience. I have three qUl'Sllons: I. As a ge neral m,lller, if a lawyer Int entiona ll y commits a Ir($pass on properly where ... borllOll5 .ue ~rformed In order to demonstrate his o r her opposition to laws pe rnlilling abortions, a nd if Ihe lawye r is convicted

of a misdemeanor therefor, cUher for Irtlspass. r~is'ing an officer, unlawful assembly, or another offense. is Ihe IJwyer subj ec t to disciplinary "c lion und er the

Rules of Disciplinary Enforcement? 2. Under the Solme gencr.lt (,leiSoutlined In question one, Whlll would be the result if the Iilwycr was COIWiCIM of a fclony1 3. I propou to parlil;ipale in ... peaceful demonstration allaln5t abortion i n which I may be arrested and con. victed oj a misdemeanor. j do not intend to harm anyone, but merel y Intend to denlO" $lrale 01)' opposition 10 1,1WS permiUinll dl'il ruction of unborn children. If I am cOllvicted, willi be subjl'Cl 10 discililinar)' ac路 tlon under the Rules of DisdllUn:HY EnrorcementJ"

ANSWER, QUESTIONS ONE ANO THREE: As a general rule a lawyer who commits a crimin"l <.tel is alwiJY5 "subject Id' disciplinary action under the Disciplinary Rules of the Code of Professional Respons;blllty of the Alabama State Bar. Whether such diSCiplinary action Is tOlken depl!nds on a "ide v;triety of rKlors Including. but not Ilmitoo to, the nature and egregiousness of the conduct, Its ren~颅 lion on fitness to practice law, its Impact on the administraTion of justice 1II1d Its harm 10 persons ,1nt! property of others. \Ne, therefore, cannol sl>cculatl! on who!! action woul<l be taken under the clrcumstanccs you I)ropose In these questions.

ANSWER, QUESTION TWO: Rule 14(b) of Ihe Rules of Disciplinary Enforcement provi<les that an altornl!Y convicted of a felony lother than manslaughter), or d a misdemeanor Involving moml IUrpilude, Shilll be subje<ted to disciplinary action ilnd shilll be susl>ended or disbarred by the action of the Disciplinary Commission. Rule 14 is m,lodillory, however, the length of a susl)CnSion Is dCI)Cndent on the drcums!i'tnces.

w. Norris, lIeneral

counsel

DISCUSSION : The type of action In,,1 yo\) propose, lIn<l which may result In your arrest and conviction, ml8ht well be char.tcterized as civil disobedience. The Code 01 Pro/c$sionalllesponsibilily does not directly address the issue of civil disobt.odience but several Disciplinary Rules do speak of an allomey"s obligation to obey the law. Specifically, Disciplinary Rule 2-102 states that a lawyer shall not engage In Illegal conduct Involving moral turpitude or any other conduct that Is preJudicial to the administration of justice or advctsely reflects on his fitness to prilClice law. Ethical Consideration 1-5, In !1Iumlnatlon of these DiscipUnilry Rules, states in pertinent part thm a l;r.vyef should be temperate and <lignified and should refr;lin from all illegal and morilily reprehensible conduct. EC 1-5 goes on to stil te Ihat, '路Beciluse of his position in society. even minor violations of law by a lawyer may tend to lessen public confidence In tnc 1l'8"1 profesSion. Obedience to law exemplifies respect for law. To lawyers especially, respect for the law should be more than a platitude:' We distinguish l>etWf..'en conduct dcsignl>Q 10 establish test case IItigntion and civil disobedience. The con....enlional wisdom of the courlS and the legal profession has been that a lawyer mtty not advise his client to violate a law or court order, except In the instance of a test case where there is a good faith belief that the 5!;Jtute or order mtty be Invalid. Atforney CrieYilnce Commilfee v. l(erpclman, 420 A.2<1 940, 958 (1980), cerl. denied 450 US. 970 (1981). Similarly, 3 lawyer may nOt violate a statute, court ordl!r or rule of bar discipline unless he has a good faith belief that the law, order or rule challenged ca,l be argued to be invalid on consti tulional or olher legal grounds. BaCCI v. Scate Bal o( Mitona, 433 U.S. 350 (1977), Malless v. Meyers, 419 U.S. 449 (1975). He must, howt.'YCr, be prep;)roo to accept the consequences of his actions in the C\lCnt his chilltenge does not stand . Absen t such good faith belief a lawyer has no legal right to violate a statute, court order Of rule simply because he finds It morJlly repugnant. Conversely, the dtizen-I,lWyer, as a respecled member 01 society, working dally with and in the 13W, has the high obligation 10 support and improve the .ldministfillioo of justice (tnd the legal system. See generally owen, The lawyer's Rule in C;vil Disobt.'Cllcncc, 47 N.C.l. R(...... 587 (1969) . The abortion Issue has been considered by the United States Supreme Court l.\nd ;)pprOllriate rulings ha\1! been issued by thlll Courl. It Is assumed that the '路abortlon clinic"

March 1989

that will bc the object of )'Our prOtest Is operating within the p.lrameters established by the Supreme Courl . Given this assumption it Is the vlL'W of the General Counsel and the Disciplinary Commlr sion that )'OIl have no legal or Cthical dghtlo engage In potentially Illegal acts of civil d lsobedi~nce of the type described bv you based simply UI)()n )'Our conviction that abortion Is Immoral or personally oUcnsivc to you. The American Bar Association, in Informal Opinion 934, May 7, 1966, considered thc requc;t of an attorney who wished to p.1rtidp.atc In Hpeaceful picket. ingN agalr'st thc Ku Klux Klan where no violil tions of sta tutes or ordinances were Involved . Conceding that It would not be unethical for the nttorncy to march in a legill l)icket line, the opinion noncthclt'Ss sta ted that H• • • Ihls Comml nccdoes not feel that the attorney serves the best Interest of the j)fofes.ion In so doing:' The Committee then opined that:

Dispute Settlers Wanted

''While ... an attorney does not surrender his rights as a el tizen by becoming a mem~r of the legal profession and has a right to engage In peaceful picketing so long as no violation of law Is In· volved, we feel that such action on his part invites critici sm of his pr<> lessional iudgment and conduct. As we pointed Out in our Formal Opinion 27S, l~rsar1!offlcersof the court and an es~nUal and im· porlant part of the judicial prOcesses-being vested with special privileges and subject 10 grJ~ responsibilities and duties in connection with the administration of Justice. Thl'Y mUSI ztl"lously gWlfd these rcsponsibilitie and evermore be mindful of their COn(/UCt." (em· phasls added)

We adopt this view.

Arbitration Forums Int., a non· profit organization with over 40 years experience in resolv· ing insurance rela ted disputes, is [ockinS for Alabamll bar members with demonstra ted objectivity to serve a$ arbitrators/mediators for our Accident Arbitra tion/M ediation Forum. As an arbi tra torl mediator, you will be asked to resolve ally Insurance reill ted dlspule ei ther through binding prbitrill ion or advisory medililion. •

fR()'88.9)1

For more information cali:

(800) 426-8889

Winter 1988 Admittees Alabama State Bar

ANGWIN, fdwilrd Eugenc 3717 Briaroak Circle Birmingham. Al 35223

DUNN1E. Rc~co/l SI. Pierre 1700 First Alabama Bank Building Birmingham, Al 3S203

MCLAIN, Deborah StephilOie 209·B DcSilies Avenue Mobile, Al 36607

AVANS, Donna Lea 191 E. Broad Street Athen s, GA 30601

GRISHAM, James Robert 3S35 Mountain Crcek Road, !F0 12 ChlmMooga, TN 37415

SELF, Randall Edwiltd 133..... Trinity L..1ne lebanon, TN 37087

BOONE, Susan AMC P.O. Box 30 t9 Tu scaloosa, Al 35404

H ENDERSON, Diane H aden P.O. Box IS8 Glen Allen, AL 35559

SPRINGER, Curti s ~t owt!. III 225 S. Ch(l se Street, Unit K Ch;!r1otte, NC 2B207

CHILDRESS, B.lffY Kyle 1221 Tahiti l..1nc Alabaster, AL 35007

JONES, Rose Marl!! 9677 Westfield Court BlrminMhilm, AL 35217

WOLlSTEIN, Stephen KI1< 822 Leighton Avenue Anniston, Al 35201

CONLEY, Ralph Michael 5709 7th Avenue S. Birmingham, Al 35212

KING, lawrence Tracy 3567 Carter Hill Road, 1102·1 Montgomery, Al JGI1I

DUDECK, Jon Allyn, Jr. 5045 Galaxy Wory, ' 102 Huntsville, AL 35816

LEHMAN, Thoma s Jeffery 1107 Willaw Avenu(! Marietta, GA 30067

Thc Alabama Lawyer

legislative Wrap-up

•

by Roberl L McCurley, Jr.

The following law Institute bills have been Introdu(ed In the legislature and are pending in both houses: I. Condominium rCYision-This bill is a major r(>Vision of the 1973 ~tatutl:.' on conduminlums. 't Is a b..1lanced readJustment of the authority of the developer, the condominium associatiOn and the condominium unit owners. The follow ing Is a summary of the major changes: Developer- The developer ("declarant" in the (lcl) is given certai n "development" right s which I)rovide greater nc)(ibility In development, espedally In the "stagC!d" deYClopmcnt of low-rise condominiums. II also prOtect~ the dCYClopcr from some types of interference by the associil tion during the construction and markctlng phases. Association-The bill regulatl"'S the transfer 0( control o.oer the association from the developer to the public unit buyers. Assoclmions ,IrC required to be Incorpo rated. The bill strcngthC'ns the authority of the ilssodallons rc~wding Ihe enforcement of fincs and assessments OM..>d I1i unit Q'Nners, which can be foreclosed in the manner of il mOltijilse and giving such obligations il limited protection from ~in8 cut off by a foreclosure of a first mor1gagt: on the unit. Unit btl~rs-The inltillll)ubliC unit buyers are protected by requiring the dCM!fopt.'f to disclose many matters which might aff«t the success of the d~lopmcnt and the buye(s obfig.,tlorn. The dcYCloper must defi-..:!r to the initial bu~ an offering statement containing the condominium rJocl.lmentmlon, current rules, covenants IlOd financial information. There is a scven-dilY "cooling of(" period .. fter the dctiYCry olthl;! Sf<Jtcment bdofll a con t" lct of I)urchase Is cnforccilble.lIl:>enalty is provided for II conveyance with· out a dCli\o1!ry of the offering statement. Subsc("lUent buyers also arc protected by requiring. If a later buyer requests 11, a disclosure of some of the same material by the seller and the association, Buyers are protccted by permilling the association to cancel unfdvorable loog-term management contractS.md recreillion leases imposed by the developer on the association while the ~Iopcr controls It. Unit buyers are proIt..'cwd from each other by requiring the condominium declaration to state IIml1atlons use, OCCUI)ancy, sales and leasing il(ld sct voting limitations on amendments of the declaration.

The bill clarifies numerous technical rniltters rcliltive to

malty recordation, legal descriptions, Insurarn:;e, terminAtion, 31XU1ment conversions ,md escrow of d(.'fXjSits, among others. Thi s dr,lf! is the result Qf a Study begun by thc Institute In May 1982. Chairing the committee have beell Albert Tully and E.B. l\.'Cbles, both of Mobile, wit" Professor Gerald Gi bbons as Ihc reporter, The bill 3S pending is sponsored by Scnmor RY,ln deGra'fenrlc(!, 5. 0. 66 and Represell!.llive Jim Campbell, H.B. 93. 2. Adop tion-The Alabama Law Institute beg.ln their review of the adoption 1iM'5 ill the request of wlfious legislators. The comminee used the l\lllCrican Bar Association'S Model State Iodoption.Ad as the basis from which the c0mmittee y,()rkQd to draft the Alabama Adopfion Ad. This code

cxpm1ds ilnd strengthens Ihc current law In Alabama relat. ing 10 adoption. There are SCl.(!fal slgnlfic,lntlmpr<:NCments in the Inw. The t'lrst Is to increase the criml n ~ 1 Stlllctions agalnstlndlvlduais who aneml>lto prot'lt from bl,lylnij ~nd seiling children, The second improvement is to e)(p..lnd the consen t or rellnql,li shment for adoption provisions. It is lelt that the current statutes do not fulfill (onStitl,ltional requirements and consequently may rt!5ult In potCillial problems with children who are adopted without proper parental consent or relinqui shmcnt.

Robelt L McCurley, Jr, is 1116 rilfeC/o( of the AI4b.tms Law /nstllulO Itl the University 01 AJ8bama He

lecelv9d hiS

urn;JelfJladvalrJ and law degrees from thIJ Unlwtrslty.

0.'

M<lrch 1989

Third, confidemlallty has ~n modi· fied to increase the amount of nonidentifying Inform,1tion av,)ilable to the adult adoptee while safcguardin g the identity of the natural p.11\.>flts who do not wish to be Identified . The final slgillficant chanBc is to cI<lrify the Inheri tnnce law regarding adopted children . This bill will repeal the current statutcs relating 10 the adoption of Children "nd will repeal the proylslon allowing for adult adoptions for inheri· t<lnce purposes. Bill Clark of Binningham chaired the committcc, and Professor Camille Cook was tne reporter. This bill Is sponsored bv Senator CharlC5 langford as S.B. 34 ilOd Representative Beth MarletW as H.B. 103. 3. Memorandum of lease-Alabama's I)rescllt law requires the rfXordtllion of a lease If It Is to Ix! enforced for over 20 years, This bill all(MIS fOr the reco rding of a memorandum of lease which will have the same effecl as filing the lease Itself as required in Ala. Code §15-4-6. This bill is sponsored in the House by Representative Bill Fuller <10<1 is H,B, 126 and in the Senate by Senator Jim Smith as S.B. 79. 4 , Registration of federal la1( licnsThis bill provides lor the regi stration of k'(lefill tax liens and deslg!HlteS II place of filing for notices of 1:1)( Uens of the United Stales ilnd ,lpplies only to the fcd· eral tax liens. The bill provides that fcd· cl"3l liens UI)()n rea property and certifi· cates and notices affl!Cting the liens to be filed In Ihe office of judge of probaTe in The coonty In which The !"Cal PrOperty is locaTed, Federal liens upon personal JllQperty if the lien al)plles to a corpora· tion or p;lrtnershlp or a trUSt will be flied in the secreta ry of stat{!'s office. If the Interest Is ag,ll nst the cstate of the decl.o. dent or In other ca5CS, then the filing will be In til{! ludge of flrobate's office in the county where the estate is filed or the person resides. This bill Is sponsored by Senator Earl Hilli.lrd as 5.B. 202 and Rc~ rcsentat!\IC lim Campbell as H.B. 91. S. St.ltutCI of oon·daims-The United St"tCS Supreme Court has questioned v.lrious laws regarding noti"c to creditors. In a reccnt case In the U,s. DiStrict Court for the Middle DI ... i~lon of Alabama, Ala· barna's STatute of l"Ion-ctalms was de-

dared unconstltUlional. A bill iKldresslng this issue has been introduced by St.'fIator Rick Manlf!y as S.B. 67 and Reprcscnlative Bill Slaughter as H.B. 298. The chair· man of lhls committee W,lS El, Brown, IlI1d j>rofessor Tom Jones W,I S The reporter. 6. Fraudulent transfers acl-In the mld-laOOs, the Alilbama LeglslMure enaCTed Alii. Code §8.9.6 which tr.lckcd the StJtu te of Elill(lbeth, passed by P,lrlia_ men! In 1570. Since then, (ourt5 have bro..ldencd lhe sc~ 01 the statute. Them arc two kinds of fraud : actual and Constructive. ''i\dual fr.lud" is Ihe mental lntemlon 10 dele'lI the rights of anOTher. "Constructive fraud" Is 1~1 (ravd, regardlcss of in· tenT of Ihe debtOr. This ilCT follOW'S the 1985 version of the Uniform Frill/dulelll Transfers Act adopt{!(j u,. 17 stJles. It also will make AI"bama compatible with the bilnkruptcy code. This bill dcli rles "aCTual" fraud gener"l. Iy the same as the current Alabilmil liM'

by requirin8 actual intent to defraud, however; il also idellliflcs a USt of factorS the courl may consider In determining Intem. The bill further adDresses "con· structive" fraud, which must include in· adequate considCr.ltion and enumerates faCTOrs (or conslderiltlon .

The chairperson for this committL'C is Richard Ogle, and Iho reporlcr Is Dean Nat Hansford, The bill Is sponsored by Senator Frank Ellis as 5. B. 61 and by RepresenTJlive Mike Box as H,B. lI S. •

AUTHORS! Law n ook Publisher seeking one lind two volume works, Suhmit Qutli ne Il nd tahle of content! only, 10 : Knowles Law Book Puh., Inc" 1101 W. Euleu 91vd., Suite 178 Eu l e~s, Texas 76040

The Alahallla Wills Lihrary It:.

The

&.\k rnuluplc -cholce Ind . ,Id lhen com· documenu in nllnulu. 1'M

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CO!lIraC15 (4937). omn I.ra!ltt RideN pie and complc~ wil.J pruvldln. for 5Cpi' (493&). Slofe I.rut Hlden (4919), rale dilposil lon ~ of personll effect. Ne t LU StS (4940), l. hnl l ~ d I IId ~Ihy, cuh bequeM!, annu· ONLY I'artnrnh lp.' ("946 ), Sepa. Ities, llle grallung Bnd clcrclMl

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or power!l of appoimmenl, c redll equivalency trU SIS wllh QTIP pru~I~IO!"', nlDri· lal deduct 1011 lfU SI~. chnrlm· hie remai nder !rUIn , lind

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30·day money back guarantee 01 s ati sfaction

Oilier disposhion,. 111e reJ\d· uuy e~l ale may bI: dl~hkd imo equal or ullC'q ual 511~5 with each )hare being gIven 10 OIle or more bl:11C'11c1arie.1 outrighl, 01' In. ~'f1ely of .nuu. TNm may be termlnaled or pafll.lI ~ dlsmbued al specifi c .gu, or may lUI flY. lhe life of lhe bellelklary. Ahemale and MlCCe!iSOr dec tKra!lollJ, power.1 of

rlltlon "grtemenes (49)]), II"Sl nej~ SnIt. (4947). "lid

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(4948). are cV811nbie for AlnbMma at $"l00 e ~ c h . UpdPl tl are frcc lhc fim yur, $ 10 per di.,k I~erufler. IBM or compili ble eompulct'S. S~iry .5 1/4" or 3 In" di~k . C.U Bern itt Wi1lIQm~, (!lOCI) 121·2972 for infomlation on llle.lot .,Id OIhe, prOSf11nu for AI.bama.

~elslor-Le9C'l.

Inc.

62 WhllQS1. New Yurko NY 10013 (!lOO) 22 1·2972 FAX (2 12) 43 1·.5 111

••

Bar Briefs Taylor selected presiding judge

Judge Sam Taylor is ,nc new presiding judge aline Alab.lma Coun of Criminal Appeals. Selected by vote of the judgcs of Ihe court, he will serve for two years. Other judges of the court afC lohn C. Tyson, III, John Patterson and H, WJrd McMillan. Born In Mobile, Taylor served in Mont·

gomery as a county judge, district judgll Jnd circuit judge before mO'iing to ,hI! court of criminal i1Ppeills in 1983.

Jud iciary in 1975. He was a slale reweSCfIlalive from MoolgOmcry County from 1970 to 1974. Taylor is married to the former Emily Atlen Thr.lsher of Montgomery, and they have iI SOfI in me<! cal school, a son the Uni-.el'5ity 01 Alab.lma at Birmingham i1nd a daughter ill the University of Alllb<.lma.

,II

Alabama statutes and insurance slarutes databases on WESTLAW for firsl lime WESTLAW, the ccmputer-asslsted Icg.ll research service from ~t Publishing Company, now contains bolh annotated and unannotatcd ~rslons of Alabama statutes. A separate database, conl.lining InsurJnce statutes from Title 27 of the Code of A/,lb.:ima, <llso has been added to WESTLAW.

at the Univcn.ity of Alabama, and a

Statutt'S Alabamil annotatL>d statutes, as set forth in the CO<k of A/.lbama, con tain the text of a 5el;li()n, a$ well as StJtutory credi ts, historical notL'S. annotations and Volrious types 01 rcie-cnccs. These statules are available In the Al-ST-ANN database on WEST LAW. The unannotatcd statutl!S are contained in the At..ST diltab.1SC. StOltutory credits have been addt.'CI to the full Code and appear in each document <llong with text of the section. Both (InnotalL'tl and unanOOtated SI<ltutes <Ire cur· rent rhrQl,llSh I<MIS p<isscd 111 the 1987 Reg· ul<lf Session of the leglslmure,

master of laws degree from New York University. He practiced In Birmingham tWO ~ars and served as an Army legal officer for three years. He then returned to Alabama, practicing law 11 years In Montl!omery ~n til ilPlJOintmenl to Ihc

Insurance stiltutes The new AUN·ST datilbase contilins documents that reltlle to Insurance issues, Including contflM!rsies ill'lOlving Hfe, property and ci5ualty Insur.lnce, an·

TaY/Of

He Cllrn(,,,(i d€gretlS in bl,J$iness ilnd 1:tW

100

nuities and the regulation of the insurance industry. Documents In the databOIse ~re selected for relevance to insurance topics and arc anootaled sec. tions of Alabama's statu tes, StalUles are curren t through laws P'l5sed at the 1987 Regular Session of the Alabama legisla· ture. Coverage Includes Title 27 of the Code of AlabMM. For additional information ca l! 1-80Q..WESTLAW (1-600-937·85291.

ABA openS LawTech Ccnler The American 8ar Assocla1ion opened the A8A lav.ITech (enlL'r In Its Chicago offices Ot.'Cem1.ler I. The lawTcch Center is an assisted teaming facility, where law\-'C1'5 and their slLlffs can gain hands-on ex· perience wi th law ofnce technology srs'ems and products, such as time account· Ing and bimng, word processing, litigation support, docket i1nd rC<l1 property systems, scanners and CD-ROM, as well as the ABA's own LAWlink and ABAlne! systems. The lawTI..'Ch Centcr Is phySically slm· ilar II,) a language laboratory. Users work 011 Individual carrels equipped with a computer or terminal and the $ystem 'hey wish to try. Complete Inslructional materials are 3VJilllblc for each system, and te<:hnical support Is 3Villiable as needed from cltl)Crt s on duly at the LawTech Ccnlcr and from panlcipating ~ndors via telephone. Appointmen ts arc requested to ensure that ('VCry visitor receives personal attention while at the ~enter. Appoin t. ments can be made by calling the lawTech Center at (lI2)988-lINK. Use of the lawTech Center is free to ABA members; non·members will be charged a modest f.,.,

March 1989

Remarks of Chief Justice Sonny Ho rnsby SUllrelYle COurt of Alabamn Investiture Ceremony Montgomery Civic Center January 16, 1989 COYemor Hunt, U. Governor folsom, Spn<lker CI,lrk, Mr. Chief Justice Torbert, nlembers of the judicillry lind bar, distinguished ladies "nd gemlemen: I th:lI\k you for being here todily.

Former chief justices Former Chief justice Howell HefHn is the fat her of the modern court sys tem in AI(lbama. He persuaded the legislature to prOI)()SC and the people of "Iab-lma to adopt iI new Constitution for the judicial branch. Chief jllstice Torbert has implemented prvvisiol15 oi that ConStitutional change over the paSt 12 years. I Sillute former Chief Justices Heflin and Torbel'1 for the oUlStalldins worlc that they have done.

Tr.1ditio n Alabama has 01 long and proud tradition of judges. assocllllc Justices ,md chief justices who were Md an! outstanding ju ri ~ts. fair and Impartial in their decisions and totally dedicated to the rule of law and thl! betterment of our ~t a l e. 11 Is lin honor for me to join the r.. nks of such outstanding men on<! women. Fortunal e As I look a!Qund the room today, I am rcmlndt.'(I of hOYJ very fortunnte I am. The lord Ims blessed me abundantly. I am fOriunme to h<Ne a filmily lind friends wilhou t whose dcdica\t.'d and steadfast support I would IIOt be here today. I am IOrt\ln.(lte in ,hal the people of Alabama have afforded me the opportunity to 5(!1'VIl as )OUr chief Justice-and In doIng so, havt! allowed m!! to rCi\1i1e one of my life-long ambltlons-that of completing my professional ca reer In public service. The supreme courl The eight associate justices on the Suo preme Court of AIOOilma are recognized as being strong individuills. They are thoroughly hOnest. fair il!ul Impilltlal. I look forward to collegiali ty on the court. I respect and hold In the highest esteem and reg..ud the associate justices of "Iab.lma's highest coun: Hugh Maddox, ROO jones, RenCilu Almon, jaoie Shores, Oscar Mams, Corman Houston, Hcnry Steagall and Mark Kennedy. I am also very excited about working with my (riends on the COUrl of criminal appeals and the court of civil OllllCOls. I congratulate Milrlc I(cnnedy and Bill Robcrtsoo Crt thi s special day.

The A labama Lal-l-yer

Improved juvenile jusl ice system I believe that we must improve the juvenile justice system. I further belilJ"\.'e that the recommendations dcYCloped by the Prison Review T,lsk Force on early in· terventlon/preventlon programs provide the best current thinking on this subject. Based upon the succcHful work of the Prison Review Task force, Ihe " Iabama Judicial 51u(Iy Commission has directed that a similar comprehensi ve study be made of the juvenile justice system. Within 30 d¥, I w ill ilppoint a Commission on Juven ile Justice to conduct thi s rescilfch and stud y. I willi)!! ilsking the commission to submit Its report to the Alabama Judicial Study Commission when it meets in NQYCmber 1989. I an· ticip.lte our Ii ~t ju~nile justice improvemt.'flt legislation will be ready for submission at the 1990 session of the "1;'Ibama Legislature. I am firmly convillccd that a fi rst-class Juvenile ju~t lce system call S<M! wrecked lIvt!s. turn would·be yaung criminal s into worthwhile working ci ti· lens, reduce congestion in our juvenile and adult criminal courts and relieve M!r-croYo'dlng in our pilson SYSlem. 1believe we can S><1\(! thl! taxpayers millionS of dollars by the use of cffectlYC early Intervcntlon/prcYCntlol\ progralm and 3lternative sentencing programs.

Case fl ow

management Court delay can be prevented: where it exists, it can be redvced. I am proud to report to yOu !h~ t , lor the most PM!, Alilb,mlil does not suff!!r from !!xcessive liTigation del,ry. HO'M..'Wr, II is something that must be monitored continuously to assure that all cases are processed promptly for the benef! of the citizens

who Me the true consumers of court services. There is a grOYJing awareness by the bench, bill and public tho! litigation frequen tly l<lkcs too long and cos ts too much. JWlIlce dl!layed truly Is justice denied. Prople have a right to a timely resolution of their diSputes by judges commilled to the proposITion that I>romllt d151>osit1on is a fundamental attribute of justice. H()\o\ICVer. we must t!!mpcr our desire for sileed with a recognITion tl",1 justi ce is our polestar: in the words of Justice Felix Frankfurter. "Mere speed Is OOt a test of justice. DcI,ber.lIe speed Is. Deliberate speed IJkes time. Sut it is time well spent There'ore. while I am proud of the job we arc doing nOYJ, I will acti'.1!Jy seek ways to do It (!'.(!n beIter. We cannot stand still. H

Cooperation I believe thc three independent br.mches of gcM!rnment mu~1 communicate, acconm)()(!ale and coopcriI te to ful· fill their Constitutional duties to each olher ;md to the people. Our Constitu tion 15 fOOted in the will of the people. Employing the doctrine of judicia l review. the courts historically have been Ihe Interpretl!rs of the Constitulion and the protCCTorsof the ~rcign will of the people. Court s, in each Individual case, mUSt strive to interpret w isely and fa irly.

New judicia l building A n(.w judicial building wa s the gO:'l1 of the late Chief Justicc j. Ed Livingston, former Chief Justice HQ\.YCII Heflin lind Chief jU5tice CC. TolberT. Bt.'Cause of Chit..f Justi ce Torbert's tireless efforts, it now ilppcars Ihat a new judicial building is goi ng to be a reality during Iny term of office. It will take about a year to gel the design and plilns for the bulldJrl g completed and apprQKimatcly tWO to three more years 10 construct the buildIng. Because we arc utilizing the besT consultants In thc country, thi s judicial building should be one of the most advanced 5tatlM)f·the-M appellate court buildi ngs in the COUIHry, ~ nd should SCI'Vll the stil te well for the ne.t SO to 100 years. It will house, under one roof, all three appellate courts, all operations of the Administrative Office of Couf1s and

101

succeeds Associate Justice Sam Beatty, wh o retiri;!CI. Rolx;!rIson, a district judge In Talladc83 COUllty for si x years, Icpluced retiring Judge Robert Bradley on the court of civil apl>cals.

1he stilte Iilw lil.lrilry. The court system Is pn:!S(!ntly renting commercial space all over Montgomery, With Its increased cf路 feclillCness and eWciency, Ihe new ju. dicial bVilding shovld be IICry C051effective. The law I believe In the rvle of law, The IJw is the servant of the Pl"Ople. llll! for the rule of law, Ihere would be no individual right s, freedoms or protcctions-j ustice would be ddined by economic stillion, I}()li lical infl uence, military might and birthright. 11 Is l ilt} rule of law Ihal pr~ lects us all. The law m.lkes us all eqval ... rich fUld poor, YOWlg and old, block and while ... we are all e<lual in Ihe eyes of Ihe law, The Iilw must reflect a bill,lrlcl..>(1 respect for the competing interests in our society. The law has an equill reSpI.'CI for i111 p1lrril;!$ 10 a diSpUh? The rule of law Is a servan t of all the pe0ple and its object is the equal and exact ju~t lce for all parties. I promise to continue 10 school myself In the scholarship of the law, and I promIse 10 exercise the disdpline Ihat is required to be the best and fairest chief jl.lstice I c<tn JXls~ibly be. Conclusion Ovcr the l;lst t'NO dcc<ldes, we have rrlade great stride s In Improving judiciill services in Alal,l.'1rlla. Much, hovvever, remtlinS 10 be done. With YOl lr 51.11)pOrl, wilh your pr<lYCrs and wi th the help of God, we can tllcct lhe challenges of the fulur!"! and Insure that the I}(.>()ple of our great state CO'll inu!! If) receive <Iuality judiCial services in a timel y manner,

Hornsby becom es A labama's 26th chief juslicc; Kennedy assumes Suprem e court scat; Robertson joins co urt of civil appeals Ttlllass~ lawyer E.C. Horn sby 1x.'Cilme Alabama's 26th chief justice, Circuil Judge Mark Kennedy lo ins the state suo prl'!lle cour! as nn tlssoci ate justice and District Judge Bill Rpbcrt ron !lloved to the court of civil aPl>I!als In January investiture cerem onies in M ontgomery. Horn sby, a native or Tallassee, has practiced law for 28 years. H e has served as president of the sta te bar, the Elmore Coun ty Bar 1I 11d the Alabama Trial law-

102

Torbert Con8 fjJWlille$ Chic! lus!ice I路/ofllsby at (<<-C!nt investiture.

Kennedy

Taylor, Holmes arc new presiding judges of two appeals courts The sta te's 1WO apl>eals courts have new presiding judges, Judge Sam Taylor has become the presiding judge of the court of crimin;!1 appeal s. He sefV(>(j as a di~ t riCi Md ciu; uil Judge In Monlgomery before joining the appelilite COurt In 1983. Judge Richard Holmes Is t h~ nfM< presiding judge of the court of civil lIppcals. H~ Is the senior member of that CQurt, ~ervlng since 1972. Just ices Maddox, Adams, Steagall, Judge Bowen begin new appellate terms Associate Justices oi the SllPrellle Courl Hugh Maddox, Oscar Nlams, Jr., iIIld Henry Steag.111, along with Judge Willi am Bowen, Jr., t.i Ihe coun of crimillill ilppeals, hll'/(! begun new si x)leur terms in office. forty-nine new tria l judges, ci rcuit clerks assumed office in recent m o nths

RobM$Orl

vcrs Associa tion. He has served as a Slate senlltor, asslstunt commissioner of Insur路 ance and as ci ty ludge and city att orney for Tallassee. Hornsby succeeds Torbert, Jr., i1S chief justice. Torbert served as chief justi ce fOr 12 }1'!ars (Illd did I10t seek reelection In 1988. Kennedy hlls ser ved as a district judge and u circui t judge In Montgomery. He

c.c.

Circuit Judges 10th Judici al Circuit Uelfersonl Place 7 M ike M cCormick Place 11 Bill Wynn I'lace IB Sandra Ross 11th Judicia l Circui t (lauderdale) Place 2 Don P<Jl\eoon 15th Judicia l Circui t IMontgomery) Place 6 Mark Mon tl el 18th Judicia l Circui t (CI(lY, Coosa, Shelby) Place 3 AI Crowson 19th Judicia l Circuit (Aulauga, Elmore, Chilton) Place 2 Steve Drinkard 20th Judici al Circuit (Henry, Houston) Place 3 Denny l. Holloway 22nd Judicia l Circuit (Covington) Place I Jerry E. Stokes 23rd Judiciil l Circuit (Madi son) Placl!' 1 Joo Bil"le 27th Judicial Ci rcuit (Marshall) Place I William C. Gullahorn, Jr.

MMCh 1989

2811'1 Judicial Circuit (Baldwin) Place 2 James H. Reid 30th JlJdicial Clrcuil (Blount, SI. Clair) Place I Robert E, Auslin )Sth JudlClal Circuli (Conecuh. Monroe) Samuel H. IM:Jkh 36th Judicial CIrcuit (l awrence) Philip Reich

Franklin Ben Richey Houston (to be appointed) Jeffcrson Place 3 EUse Barclay Place 6 Roben G. Cahill Lamar Ed Gos" Monroe John CauSi..'Y Rimdolph Pat Whaley T<llladcg3 Place I George N. Sims Place 2 (to be ilppoinwd) W.llkcr (to be appointed)

Dlstrlcl Judgt'S Baldwin PI"ce lLyn SlC'Narl Place 2 P.lmela Baschab Bessemer Earl Carter Barbour Tommy Gaither Blount John Dobson Butler Cleve F'oole Calhoun Place 2 Cus Colvin DeKalb lee C. Traylor Faycllc Terry l. Clary

CliHke Wirfne Brunson Covington Rt'l8cr Powell Greene Johnnie KnOll Hale Beuy Gayle Pale limestone Charles Page Marlt'ln James Odis Garrard Mobile SUSJn Wilson

",,'Mary " Moore

Pike Brenda ~acock Randolllh Kim BeneOeld Shelby Dan Rccvcs 51. Clair

Circuit Clerks Baldwin Jacklc Calhoun Bloor't Mike Criswell Cherokee Carolyn Smhh Chihon Mike Smith

jean BfO\.'Inlng

TillI.. poo~ Frank lucas Winston

•

W.F. Bailey

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MeLE News

by )Ccilh U. NormJn

Director of Programs, Alabama Siale Silt The Mandatory MelE COr'Mlission held ils October 7, 1986, meeTing al the slate bar hcadquilr1ers. in Montgomery. IV th is meeting Ihc Commission:

1. Granted a parlial waiver of thc 1988 e lE requirements (or an <lltorney Ic......ing the practice of law to enter the seminary; 2. waived, on a one-time basis, the cvalumlon rcql.liremenl (or apprO\led sponsor who (,llled 10 distribute evalua·

,In

6. Oeclined to approve for credit a seminar sponsored by the 15th Judicial circui t offered to law clerks and emplOyees of the circuit clerk'S office beCtlUSC the p(08r~n1 was designed pri. marlly for 110nlawycrs and did not meet the requirements of Regulation 4.1.2; 7. Dedlncd to apprCMl for credh a proIvam spon ~l)red by the U.s. Dep,lrtmcnt of Justice concerning attorney mana8~ ment lx."Cau$(! it did nOt m(.'Ct the rc<Iuiremcnts of Regulation 4.1.2; 8. Approved for 6.5 e Lf crcdhs a seminar on estate planning and la)(Oltion with 3 specific admonition to the spon. sor not to advertise a program as having tx.'Cn (\Pprove<i (or CLE credit In Alab3miJ without first obtaining the Commission's appn.)Y,ll of the prolSram; 9. Declined 10 appl'()YC for credit a program deali ng with modern l.'COnomlcs for the legal p(ofcs.ion because II (alloo to meet the requirements of Regulalion 4.1,);

10. Declined to apprCMl for credit a

seminar until the sponsor

S~lbmilled

parillive Inw seminar on admiralty con·

complete Sf;l t o( mat(lrial s for the Commi ssion's review; II . AIlI)ro-.«l for p<lrtlai credi t three scgments of a corporation's In,house seminar which the commission deter· mined to be In compllimce with Regula. lion 4.1.6; 12, Approved rorsil( CLf credits an ac· counting course designed exclUSively (or lawyers; I ) , Declined to app~ sponsor stillUS to the EtowJh Coun ty t..1W Llbl'ilry because il offers only t'NO eLf progr"ms

duCI(!C1 In london;

a year.

tion qUllstionrlaircs to progtarll participan tS;

3. API)f'OYC(\ II mlxcd..audience scmirw on hospital law for 10.3 elE credi ts 0(' fcred by an apprOYed sponsor; 4. AI)PrQYCd three topics of a mi~>d·

audience seminar on nursing home law offered by an apprt1tl(.od sponsor for a 101.11 of 2.5 eLE crooits; 5. AppfO\lCd for 15.8 e lE credits a com-

On December 2, 1986, the MCLE Commissioo held its meeting ilt the Wynfrey HOlel In Birmingham. AI this mc(!ting the Commission: I. AI)proved two altornLYS' request for

a partial waiver of 1968 CLE requirements due to heahh reasons; 2, Declined to appfO\'C the sttlte com· missioner of revenue's requcst for an (!lCemption from CLE requirements during the remaining portioo ofhi$ official term, but waived Ihe 1988 CLE requiremenls cOndilioned UI)!)n his purchase of a special memoorshl l>; ). On <lppc,,1 by Ihe 5I>onso(, rC\lCrst.'<l Ihc director's orlgln<ll decision denying fICI;rt.'(lilation for a progrilm where Ihe sponsor failed to distribute milterials at the time of the activity, condilioned on the sponsor's providing the dlr(.'CIor with a copy of the published compila tion of program speeches furnished to partid· p"nlS subsequent to the program; 4. On tlppeal by the sponsor, r(,(onsi. dered Its previous decision granting only partial credit and appf'OYCd for full credit a corporation's In·house seminar, conditioned on the sponsor', fu ture seml ntlr m;l\cri<lls fully complyil1g with R(lgula. tion 4,1.6.

S. On ill>!>cal by the ' ponsors, roton· sidc((.od Its pfl.'ViouS decision declining to grant three different sporlSOrs al)pmYed sponsor status for 1989 and Instructed the director 10 inform each sponsor th<lt the Commission must be nOlified 01 all progr;lms in oov,mce, as well as the name <lnd <lddrcss of each ofganilt<ltion's can· tact person,

GASTON NICHOLS PROFESSIONAL AUDIO SERVICES

CORRECTION:

EXPERT WITNESS CONSULTANT

The cover of the January 1989 issue of The Alabama Lawyer should have read

TAPEs ANALYZED - INTELlIGOl 811lTY ENHANCED NOIS~ MEASUREMENTS AND ANALYSES

IIJury Argument- Are There Any Soundaries on Fair CommenH"

(205) 591 · 7346

104

March 1989

1989 Approved Continuing Legal Education Sponsors Accredited law schools (ABA, AALSI AllmlniStr.1llve Office of CourtsAlabama Judicial College Alabama Bar Institute for Continuing Legal Education Alabama Consortium ci Legal Services Programs Alabama Criminal Defense Lawyers Association Alabama DC!fcnsc l ,lWyers Association Alabama District Attorneys Association Alabama lawyers Assocllllion AI(lbama State Bar and bar 5C!Ctlon s Alabama Trial Lawyers Association Ameri ciln Sllr Association ;md b..lr sections Ameri can CotlC!gc of Trial Lawyers American Law InstitutC.,o\mcrican Hur A ssociation, Committee on Con ti· nulng Professiona l Education Association of Trial ....lWyers of Ameri ca Atlantil 8M Associ,ltion Bar asSO(iailons of the sister states, the District of Columbia, Puerto Ri co and the truSt territories Birmingham Bar AssociatiOn Commercial Lnw league Fund for Public Educatio'l Continuing legal Educa tion Satellite Network Cumberland Institute for Continuing Lt>g.1i Education Defense Research Institute Federal Bar AsSO(iation, M ontgomery Chapter Federal Bar Association, North Alabama Chap ter Federlll Energy Bar Association

H untsvlllc-MadISOr\ County Bar Association Institutes on Bankruptcy Law Inlernationill Association of Defer'S(! Counsel legal SC!CIions, agency programs-U,S. and st,lIe governm(!f1ts LIbrary of Coogress-Congressional Research Service Mobile Bar Association Montgomery County Bar Association MOntgomery County Trial L'lW)'Crs AsSOCiation M organ Coun ty Bar YQung I.<lwyers Secti on Naslwille Bar Associlltion National Association of Attorneys General National Association of Bond Lawyers Nil\ional Association of Railroad Trial Counsel National Uar Association National College of District At torneys N;nlonal College of Ju»enile Justi ce National Health Lawyers Association National Insti tute of Murlicipal Law Officers National Insti tute for Tri al Ac"'OCaey NaHonal Judicial College Natiomll Legal Aid and Defenders Association National Organization o f Social Security Claimants' Representatives National Rur..1 Electric COOPCr<ltive Association, legal Division Patent Resources Group, InC. Practising law Institute SQuthwestern Legal Foundation Transportation lawyers Association Tuscaloosa County Bar Associllllon Tu scaloosa Trial lawyers Association

THE UNIVERSITY OF MISSISSIPPI

INTERNATIONAL STUDI ES PROGRAMS ANNOUNCES THREE

1989 SUMMER STUDIES PROORAMS FOR LA WYERS AND JUIXiES ~

CAMBRIDGE UNIVERSITY CAMBRIDGE, ENGLAND Internalionallaw

July 8-15, 1989

•

,\t l lll! R N I ' IH' lt

\\ IIlIl· ......

"'H " \

Ill· ...

Dtdrie Sboc::k· AutomotII'tI'A~ F.ltdroIdcI. MedIcal Dnb FIiJaR· Comp4.1kr S)'IIeaII' Mkto•• we ........ 8IomtdbI S,-- 'HIIIIUD-MKbiDt IDterfaoe • CeMnI F.ac1DeertDt: • H _ -.I SodaI SdlDaI

Dr. Mlcbad S. Morse (205) 887-1817

The Alabama l.aW}'Cf

P. O. 80x 879 Unlvtr5llY. MS 1867U879

(6011lJ2·1l82

Dr. Thaddeus A. Roppel

(205) 887-1814

2J7 PaJ'M SIrftl, AuII ....

•

E, F. Ytrby Con(ertllCf Ctmtr

(205) 826-6610

.u... J68J0. F.:rptrt R.d:uDeI WekDllUI

105

Memorials

lorna Oriley Beaty- fori Payne

Mmill<'d. 1953 Died: September 25, 1988 Jay B. Blackburn- Bay Minette Admitted: 1928 Dil>d : Februmy 5, 1989

!\IKIIH ' (,,\\jION

Nace R, Cohen-Montgomery

Admitted : 1973 Died: December 23, 1988

Alberl Sidney G.lSton- Mobite Admitted : 1936 Died: Dccernoor 10, 1988 Edwin Lee (;()()(Ihuc-C .. dsdcn Admitted : 1914 Died: Au guSt 21, 1988 Robert M cClcll,m Hilt- florence Admincd : 1929 Died: ] anui,lry 6, 198':/

These notices are published Immediately after reports of death are receiYed. Biographical information nOl appearin g

in this issue will be published al a later dale If Informalion Is accessible. We ask

you to promptly re pon Ihe deat h of an Alabama attorney to th e Alabama State

Bar, and we would appreciate your assist· ance in providing biographical informa· l ion for The AI"bilrna l.awyer.

106

Mobile .morn c.'Y Albert S. Gaston died December 10, 1988, at the age of 74. Gaston was born October 29, 1914, in Mobile, where he allended public schools. After graduating from Murphy High School in 1931, he rcad law with th e fi rm of Dozier & CriIY for thrl.'!! ~ars. He then o) lI(lnd~>(1 Cumberland Law School in Lebanon, i ennesS(!(!, where he earm.'CI his law degr(>C hI OIIC year arId then wilSad milled 10 the Alabama State Bar in 1936. He pra cticed law wi th th e federal government In W.lshington, D.C., for Sl.'VCn years as principJl COll5truc;tion a1l0rncy for the Fcderal l>ublic Housing Authorl· ty. While in Wil shington, Gastorl al so eilrned (in L.L.M. degffie from CathoHc University of Ameri ca. foil! returned to Mobile in 194610 enter privatc practice. A general practitioner who believed that a ca ll to the bar was a call to service, hc handled all types of Cilses, civi l and criminal, jury and non.jury, in all slate and federal courts. For the l).'Ist 25 yeal'S. he speciali zed in The fi eld of bankrupt. cy ilnd debtor relicf wl1C!rc he was recog· ni l\''CI by his lX'CfS u all cxpert who WJ S illways helpful to younger lawyers, as well as to his many clients.

He Is survived by Sarah Frilnl;es Shafer Gaston of Mobile, TO whom hI! was mar· ried in 1940. He is al$O survived by his sister, Mary Ga$Ton Craighead; two sons, Alben S. Caston, Jr., a veterinarian. and t<ln F. CastOrl, a lawyer with wh om he practiced for 21 years; and four Sl'iIndchildren, ;I II of Mobile. Caston wa s 3 member of ToaStmaSTers tl1lcrnallonill in whi ch he held numerous offices and wa s winner of mmly corllpctl. tion s, being most renowned for his abil. Hies as an cxtt.!mporancous speaker. In i.ldditiQn, hI'! W,IS a long.tlmc active memo ber of Christ Episcopal Church where he served as a lay rcader. He will be mis~, but fondly remembered, by hi s family. friends and brother 11lW'y'Qrs. - Ian f. Caston, Mobile, Alabama

Whereas, Wyman O. Cilmore was born In Silas, Alabama, September 4, 1926, and died in Cr(M Hill, Alabilma, October 3, 1988; ilnd, Wherea s, members of Ihe Cilmden Bar, offi<;ers of the Circuit Court of Wilcox County, and his friends and COlleagues desire to remember his name and recog-

March 1989

nl:ec his contributions to the leg31 profession and to the court s in which he practiced I"w, and to thosll IXlOI)le he represented and helped during h i ~ 38 YCilrs of law practice; Now, therefore, be It known, that Wyman O. Gilmore graduated (rom Southern Choctaw High School In 1944; that he served in the Lnited States Army In Europe during World Wilr 11; ;md thin after his scl'Vice in the Mmy, hll ijraduated from the University of Alabnma School of law February 3, 1951, and W.1S admit· ted to practice laVo' February 16, 1951. Tht! day afler law school grnduation, he wen t to work in the Joe Thompson law nrm in Butler, Choctaw County, Ala1>..111""1a; he lef! this firm in 1953 to run for ci rcui t sollcl tO( (now district .morney) of the Firs t Judicial Circuit of AI(lb(lm(l, which was composed of Choctaw, Clarke (Ind W.lshington counties. He served In Ihis positioo for ten years; during this ser· vice, he imended Sholl courses a l the University of Chicago and NeYI York University to help h m dtwlop his poten· !fal ln pl'OSl."Cutlng cases. In JOIlU"ry 1965, he resigned the position o( ci rcuit 5OJicitor to join the nrm of Watrous Gilrren in Gr~ HIli, Clarke County, Alab..lma; in NoYCrnbcf 1967 he left this nrm to estilblish his own law office in Cr(M;! Hill, Alabilma, Vv'yman grew up during the del)!'Cssion of tht! early '305; a few years ago, he was quoIL>d In Ihe Mobile Press Register as saying, "We had plenty to cal and liule 10 wear, :lrld 'Nt! worked most of Ihe time." He grew up on the farm, and when he was 13 years old he went flOm Ihe farm InlO outside work, and worked in Iho shlpy;lrds when he WilS 15 arId 16 years old. Th is \YOrk at1itude Cilrrled ~r Into his law practice, where It was kn(MIr"l that he would \YOrk from about 6 3.m. until nightfall or afler preparing (or his

other highlights were his being elected 10 thc American Board of Trial N ivoc"tes in 1985, and In 1986 the rt.'cognitlon gl\ICn I7i his IX'Crs as one of the best lawyers in the nation in criminal dOOnse. \Nyman said fTllIny timt'S, ~ I have ncwr known anything but work," and it sh<M>cd in his handling of his cases, Although Vv'ylll(ln was a hard worker, his recrea tion was developing prime hunting and fish. Ins areas, and he d(.'V(ltcd some of his weekends to hunting ilml fi shing, and his family, friends ,inti his callie farm. Vv'yman said, "Each case is a chal· len get illld "each pe~ deserves the best you'yc gOt:' Vv'ymal1 8iIVC each case 1111 he had . He look ca~es for the W1;!ak, (or the strong. for the small and large. They each got "the best he had," He will be remembered for many, many years. When people gOt into trouble, many of them would head for Wyman Cllmore. His reput.ltlon Wlll lliM:f (Iuil. - LV, Sadler, Jr. Camden, Ailibama

tll\\I'\; til ('O()llIlIlf

,,""Born to \>\lyman and his wife, Vlvi;m,

were three children, Vv'ylynn, Vv'yman, Jr., and Frederick !'iloons. Vv'ylynn GilmorePhillippi joined hi5 firm In tht:! fall of 1979, and his 5On, wyman 0. Gllnlore, Jr., (Gil), join(.'(.i hi} firm in the fall of 1983. His tWO children's joining his firm was one of the high'lghls of his life, and

The Alabama Lawver

The B();Ird of Dire<;tors of The University o( Alabama Law School Foundiltion recently adopted by lesolutlon the following tribu te to Ihe memOry of Edwin Lee Goodhue, (ormer Gadsden altOfney, admitted to lhe AL1bama Slale Bar In 1914 as a graduate of The UnlvetSlty

of Alabama School of Law, and al the time of his death Al.rgl,lst 21, 1988, the I""", school's old~sl living illumnus: EdwIn l.C<! Goodhue WilS born In Gadsden, Alabama, December 17, 1892, the 50n of Amos E, and Carrie l.C<! (Ross) Goodhue, and a descendant of Sir William Harris, who WilS knighted a, Whitehall, July 23, 1603, He was educaled In Ihe public schools of Gadsden nnd alll!ndL>d The UniYtJrsily of Alal>..lma, receiving II bilchelor of arts degree In 1912 and an LL.B. degree in 1914. While at the Uni\ICf$ity, he was business manager of the 1912 Corolla, assistant business manager of the 1911 Crim50n White, secretary d the Y.M.c.A. c.lblnCl, on Ihe honor roll his senior year, participated in class <lnd varsity basket· ball, and was a member of Kev-Ice, Alpha Sigma Delta and the Phi Dlllta Thetil sod,,1 fr,llernlty. H e was admitted 10 the AlaI>.,ma State Bar in 1914 and \)egarl prtlctlclng in Gadsden wi th his falher, hIs uncle, Augustus R. Brindley (class of 1902), and Hugh W. White, IMer II member of Ihe Stilte Public ~rvice Commission, In the firm of Goodhue, Brindley & White. This firm was founded by his ftlther in 1886 when he commenced practice in Gadsden, and had Inciuded J.E. Blackwood, who became circulI judge In 191 4. The name of the nrm Subse<IuCntly became Goodhue & Goodhue unlll the death of A.E. Goodhue in 1923, when Edwin l. Goodhue was joined by John A.lusk, Jr. (class of 1913), as p.lrtners In the firm of Goodhue & lusk. They practiced together unlll 1943 when Goodhue, who had served durIng World WJr II as il Heult:!nant in the Chemical W.ufare Service, entered World WJr II as a SI-per. ~ar civilian ilt Tyndilll Air Force Base, P.lnama City, Florida. He was married in 1943 to the former Julia T.upley of Gadsden, who had S(!M.'(! as a legal secfCtary 10 A.E. Goodhue. After the Wilr, he remained In Panama City, cng.1glngln varied business Interests including Ice and ice cream plants ill Mississippi {lnd AI"bama . In 1951, Ihey IlltMXIIO Daylooa Beach, Flolida, where he livt.'CI in Sl'fTli-r(!tir(!rTIt!n t, limiting his business activities to hIs personal In-

107

vestments. He died there August 21, 1988, at the age of 95. The Goodhues maintained their ties and interests In Gadsden and have ~n nOted fOr their generosity, paftlcularly to the First Bal)tlst Church, which has Its Family life Cenler named In honor of Mr. Goodhue. In hi s more than 28 VCilrs of active pfactice of 10m in Gadsden, Goodhue Cl(l:>and<.>d tilt:> prilctice begun by his (juher with clients which induded The First Na· tlonal Dank of Gadsden; A.G.S. R.lilroad; Nashville, Chattanooga & 51. louis Rallro.ld; and Hanford, Aetna and other InsurJnce companies. Julius S. Swann, Sr. (class of 1931), II colleague at the GJdsden Bar and later a member of his firm, remembers him as an Intelligent, delightful and honor,lble gentleman as well as a forceful and ahle t1l1orncy whose astUlc business judgment always served the best Interest of his clien ts In a highly professional manner. Swann s,lid that his wide contacts con· tributed in a s~bstilntial manner to the business lind industrial development of Cadsden during the years of its most rapid growth. The law nrm which Goodhue se,vl.!d so ably later became lusk, Swann & Burns, t1u!Jl Lusk. Swilnn, Burns & Stivcnder, llnd In 1977, mergoo wl!h the firm of Inzer, Suttle & Inzer to form the prescnt firm d Inzer, Suttle, Swann & Sth-ender. This combined firm, trJcing its lineage to Amos Goodhve's first practice In 1886, celebra ted its l ooth anniW!l'$ary in 1986.

HOIUHT M( { HilA .... 11111 More than 30 years of what many of his friends and associates call an "era thal COlli newr be repeated" ended FrldJy, JJnuary 6, 1989, when retired Lauderdale County Circuit J~C8C Robert McClellJn Hut, 84, died.

He beg<tn his legal ca'<.'Cr In Florence in 1929. He was judge of the lauderdale County Law and Equity Court (or five )1.!af"$ prior to his a.ppolntment to the Stall! PJrdon and P.uole Board, at the l ime of the cfCJtion of a new system in Alabama, including the ;n aUII~rJtlon of adult probJtion. He served two and onll-hJlf YCJfS In Jhe Army in the AlliC!d Military Govem· ment in Ilaly during World W.u nand WJS awarded the Bronze Star for o~ t · standIng military service. In 1982 the UnlW!rSlty of Alabama Press published his military memoirs, ~nder tile title "In Ihl' Wake of War:' Judge Hill WJS e!cct<.>d circuit Judge In 1946, at a time when the judicial circuIt covered l.<Illdl!rdill(" Colbert and FrJnklln countIes. During his CM<.'C f as a cIrcuit Jl.ldgl], he served 01\ the Natlon;]1 Advi sory Council of Judscs and was an elected member of the An"ICrlcan Ac.ldemy of Ju· diclal Education. He bccJmc scml·retlroo In January 1977, continuing his 5ervice to the judiciill system by assignment of C,lses Jnd wri t ng decisions for the coun of criminal appeals.

He served as president 01 the AIClbama AssociatIon of Circuil Judges and was omarded the Cefllllcale of Distinguished Public Service by the Lnlvcrsity of AlabOlma School of L.1W. He was a fJithful member of the First United Methodist Church of Florence, si nging in the choir for mllny yeilfS ilnd serving on the board d stewards. Judge HIli exemplified the ilttributes of a judge, to hcar courteously, 10 consider soberly, to answcr wisc:y and to decide ImpMlally. His1ife leaves a rich heritage and legacy for the leg.1oI profession. He is survived by his wife, Elizabeth CrJiS.Hill; his sons, Robert McClell,an Hill, Jr., and \oVllllam FiligcrJld Hill; and Ih~ gr.mdchlldrcn Jnd ont! gre,lI-grandchild. - Rouert McClellan Hill, Jr. Florence, AlauJmJ

Please Help Us ... \Ale have no Wiry of knO\Ning when one of our membership is deceased unless we are nOl ified. Do not wait for someone else to do it; if you knO\N of the death of one of our members, please let us knOYo', Memorial information mUSI be in writing with name, re turn address and telephone number.

108

March 1989

Disciplinary Report Disbarment • Huntsville l¥W')'er W.urcn E. Mason, Ir., has been or· dered c1isb.lrrcd I1f the SUI)rcme court, effect!...", January 20. 1989. The disbarment order WilS based upon findings by the Disciplinary Board thill Ma500 had vlolatt>d V<lrious pf(NiSions of the Code 01 Prok$Sion.1/ Responsibility, by ocglecting iI legal maner entrusted 10 him, by mistll>propriating dien! funds ilnd by failing 10 deliver 10 a client all of the palX!rs in his possession to which Ihe dlent was en titled. IASB Nos. 87·210 and 87..]56]

Suspensions • IlIrminghilffi llIwytlr SOlmuei H. Sandcl'$, III, alkJa

Shmuel Sanders, was suspended frOm Ihe I>r.lctke of I"w for a period of three years, effective February 20, 1989, by order of the Supreme Court of Alabama. By fJUing to nle any al1swer 10 formill disciplinary charges Ihot were pending against him, Sanders admlned th,lt he willfully neglected leg.ll mallCI'! cn· trusted to him, that he f.1iled to seek the lawful objectives of his clien ts, Ihill he r~lIed to Cilrry out con tracts of employment entered into with clients for professional servic~, tha, he prejudiced Or dilmaglod his clients during th~ course of the professional relatlon sh p, ilnd that he engaged In illegal conduct irwol ... ing moral turpitude. dishonesty. fraud. dl'Ccit, misrcpft... sent,ltion or willful misconduct. lASS Nos. 87·161 ilnd 87·3521 • On January 5. 1989, BIrmingham attorney Mark Andrl'W DunCiln was susl>endcd from the practice of law by an order of the Supreme Court of the State of Alabama, effecti\le Dl.'Cembcr IS, 1988, for failure to comply with the Mandatory Cominuing Lcg;11 Education requirements of the Alab.lmil Stilte Bar. IClE 88.141

Public Censure • On December 2, 1988, Auburn lawyer Jilek F. S"int was censured for cond uct that adversely reflect s on his fitness 10 pr,H:tice law, in ...ioldlion of the Coelc of Profession,,1 Responsi. billty. Salm completely Ignored repeated requC~IS from the I:w that he respond 10 a fornwr client'S complalnllhill he failed to dell..-er to lhe cHent certain legal documerlts In his possession that belonged to the client and thaI Ihe clienl had r~ quested. [ASB No. 88·3981

Private Reprimands • Orl October 7, 1988, a lawyer W.lS pri""ltely repri· manded for conduct ad...crsely reflecting on his fitness 10 prac· tice law. The lawyer I>repared a second mortgage alld proml. ssory note which ....as then executed by a cllem In fiNOr of a friend of the client's who 'NilS lending the client a sum of money with which 10 Stop foreclosure proceedings a8ilinSI the client's home. The lawyer .srel.od to hold the S(!(ond mortg..lge and

The Alabama Lawyer

promissory note in escrow, pending repayment of the loan by the client to the lender, but subsequently delh<ered the documents to the client, prior to Ihe client's hewing paid the loan which they sec:::ured. [ASS No. 87·7741 • On October 7, 1988, a lawyer 'NilS pri ...alely reprimanded for havillS engaged in conductlfM)r...ing mi~repfl!sen talion and conduct ad...cfSely reflecting on his fitnes6to prac· tice law, The lawyer filed, on behalf of a cUent. a petition (or woge withholding. alleging that Ihe clienl's former spouse was two months delinquent In making child support payments, though the circuit court files for the case showed the former spouse 10 be current in child support I>(lyments. [AS8 No. 88-391 • Orl December 2, 1968, a 1,1wyt!r was priva l~ly reprimanded for ha... Jng willfully negtecl ~d a legal mailer I!rllr usled 10 him, In ... lolaUon of DR 6·IOI(A). The lawyer agreed to IISslsl a client in recovering her drl'ICr's license, which had been 10S1 as a result of a motor ...chicle accident. He did nothing to assist her for a p(lriod of O\ICr fillC years, and each lime she tnq\Jircd about the maller, he indicated lhM he wa s workinson il and wou ld ad ... ise her within two or three days as to the status of Ih£! maner. He n(wr did so, and he was un cooper~ti'-'C wilh the bar's in'J(!Sligalion of Ihe mailer. (ASS No. 87.3HI • On December 2, 1988, a Illwyer was priWltely ~pri manded for conduct ad...crsely reflecting on his fitness 10 prac· lice law, for willfully neglcctlng a leg.ll maltCf entrusted to him arod for Intentional filliure to seck the lawful objOOi\leS of a climt Ihrough reasonably aWlIIable means. The lawyer enlered into iI contingency fee contract wilh a client to pursue a cliJim against a certain busin(!ss firm, but did nol negotiate any settl ement of the maUer, file any suit on behalf of tnc clienl or Inform the client thM he was withdrawing. The litWyer iml)lied 10 the cllenl thaI he had filed suit by statlnH thaI Ihe mailer IN(luld come up on the dockel C\lCnlually and Ihal he would inform Ihe client when it did. The lawyer a(lowed Ihe stJtutory Pt'rioo of limitation to eKpire on the client's claim. IASB No. 87-5121 • 0 11 Jalluary 27. 1969, iI !,lwycr was pri ....l 1ely reprimand· ed for ha... lng ... Iolat(od DR l·l02(A)(4), OR 9-102(A)(2), DR 9.102(S)(3), DR 9·102(8)(4) Md 01{ l-I02{A}(6). In the cOurS(! o( reprcsentinH a cllenlill 11 l>crsollillin jury actlun, Ihe lawyer received funds h\ settlement of Ihe cllenl's claim and com· mingled said funds of the clien t with funds of the lawyer. The lawyer subsequently mlsal)l>roprialed funds bclonginglo the client to Ihe lawyer's own usc, and, further, f"lIed 10 maintain complete records of the funds of the client coming into Ihe lawyer's I)()ssession. The lawyer also dismissed a party defen· dant 10 Ihe lawsuit without the dicnt's consent. Being subsequently sued bv the dient for malpractice, the law.,.,.r negoti. ated a settlement of Ihat claim with the client which required thaI the client agree to wri te a leller to the bar association requesting that the grlC\'ilnce which the clicot had fried againsl

109

the l<1wyer be dismissed . The lawyer was thereby guilty of dishonesty. fraud , deceit, mi$representalion or wil!f(,1 miscon· duct, all of which adwrsdy rcfk>(ttXl on the lawyer's fitness to practice law. (ASS No. 67·5921 • On January 27, 1969, a lawyer wa s priva tely reprimand. ed for having engaged in conduct adversely reflecting on his lilness 10 practi ce 1(110'1, h,wlng willfully neglected a legal mat· tcr entrusted to him and h(lving intentionally failed to seck the lawful objectives of his clien t ~ through reil sonilbly ,wailable means. In undertaking the NmreSCl'\taTlon of Ihe clienls, the lawyer received from hi s clientSdc:x:unwnts regarding a fr<lud· ulent tran sfer of real propNty whi ch had oolonged to the clients. The lawyer ilssured the client s he would resolve the problem. Some six years l(lIer, th e matter stili having been unresolved, the clients had to retain the services of another tl\lorney, who repe(ltedly contacted the lawyer requesting that the documenlS and file of lhe clients be returned to them. The law~r promised to return the documents imd file of the clients, but nC'IICf did . following the filing of i1 gril.'Vi1ncc by the clients against the lawyer, four con secutive requests for a respon 5e (rom Ihe lawyer were necessary bciore a written response wa s received (rom him. (A5B No. 88·1421 • On January 27, 1969, an Alabama altorncy received a priv.nc reprimand for viol<Jtion of Disciplinary Rules 6-101(A) and 1·102(A)(4}. n W<1S deTermined by the Commi ssion that the attorney had nCKlecft.>d a legal matter entrusted to him and had misrepresented the Slalus of Ihe maner to his client in an

ALTERNATIVE ALTERNATIVE ALTERNATIVE

effort to con ceal his neglect. The Disciplinary Commission delermlned that the attorney should receive a private repri. mand. IASB No. 88·371] • On January 27, 1989, an Alabama attorney received a prlv.ale rl!prlrYIi'II'1d f(lr vi(llalion of Disciplinary Rules 5·105(C) arId 5·106. The Di sciplinary Commission found that Ihe at· tomey, whil e rcprescil ting the plain tiffs in a cause of action In an Alabama circuit court, al so urldertook to reprflsent a subrogated insurance carrier, without Informing the principal clients, and en tered Into <J settlemen t of the cau se of action without the consent of all parties. The attorney also deducted, without the coment of all parties, a con tingency (cc (rom th e subrogatl>d settl emen t. The Comm ission d etermined Ihat th e attorney undertOOk multiple Il!llresenta tion without proper disclosure and s(:ttlNl Ihe mliller wi thout th~ knowinK con· sem of all parties r(:garding the I)articlpa rion of each person or en tity 10 the settiemell\. [ASS No. 68·1801 • On January 27, 1989, an Alaooma J~r m(ei'>«l a I)ri. vate reprim;md for violation of Disciplinary Rul es 1.102(A)(4), 1·102(A){6), 7·102(A)(5) <Jnd 7-t02(A){7). The Commission found that the <1Itorncy in queslion maintained personal correspond. (!ncc with an inm(lte in Ihe Alab.lma prison system after having been rC<lueslcd. for good cause by the prison authorities, \0 discontinue that correspondence. The Commission found Ihal the attorney used false names and addresS(>s 10 (dcllitilll! his Cor· respondence and engaged In conduct Ihat adwl'Sely rcfl~led on his fi tness to practice law. (ASS No, 87·728)

Mark your

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July 20, 21

No No No No

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Yei Yer;

M~ylxl

Ke~,n H~niCl

Huntsville,

or Jerry Johnllon

lnd 21 19P9 Alabama State Bar Annual Meeting

205/870·8008

~ The Mutual Benefit Companies One Independence Plna. Suite ~ 16 BlrmlnlhlM. AL 15109

110

March 1989

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....,............... ""-.....,--,.,....__ .......... ___ .... _......._.......... __ 0-..._ . . _ _.... -"It.. ,~-

,_ p • ... _ _ ... 100__... _ ,.-..._ .... _ _ ........ _

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FOR SALE THE LAWUOOK EXCHANGE, LTD. Buys and sells all major law booksslate and federal-nationwide. for all your law book needs, (800) 422·6686. Mastercard, ViSa & American Express

acccPII!d. FOR SALE: Excellent condition: United States Supreme (ourl Reports. \blumes 1-(u rrtlnt, AmJur Legal Forms 2nd ;lnd AmJur Pleading 8. Pmcticc Forms (1983 edition s); ALR 41n I-cu rren t & 3/4 Ft.od. DIMeS!

j·currl!n l.

Phone

(205)

667-76 13 • Deborah.

FOR SALE: United Slates Code! Anno. laled, current through 1987, excellent condWon. Contact P.lI Hughes. P.O. Uox 2627, Annislon, Alabama 36202 . Phone (205) 23 ~428,

FOR SALE: U5e(llaw books, Volumes 425 through 468 &: So.2d, 44 volumes, $20 per volume. C" II PC(K &- Morrow, (205) 766·4490, or write at 118 Wesl Dr. Hicks Boulcv.ud, Florence, AI,,· bama 35630. FOR SALE: Alabama specific softw,lfc on cor'lll)uter disk. Nep,y available In the foliowinB areas of the law: cfvllilrocedure, criminal pre-trial motions, Inter· rog..ltories, corporations, OUls, probate forms. AVililable In Wordstar, Wordper. fcct, Displaywrite 2&3, Wang pc, Mul· timatc and other word processors upon requl!st. AVJllab11! in S 114 OSDD and 3 112 disk formats. hlqulrlr:s 'NClconwd. Vis.:lIMC accepted LAWTECH, P.O. Bux 59903, BirmhlKh.m, Alabama 35259.

from down town Gatlinburg (M!rlooklng Great Smokey Mountains National I'~Hk, near Ober Gatlinburg ski resort. Acconul1od llte$ 11 milMlmum of six per· sons, fully furni shed, all·electric with fireillacc and balcony. Sale price: $65,000 with assumable loan. Ren tal: $70 per night with two-night minimum; stay four nights - (j{th night free. Con· l;acl lohn C. Watkins, Ir., 2324 Trenton Drive, Tuscaloosa, A I ~b.lm,1 35406. Phone (205) 752-4377.

POSITIONS OFFERED ATIORNEY lOBS - Nation,,1 and Fed· eral Leg..ll Employment Report: highly rega rded monthly detailed listing of hundreds of illtorncy ~nd I;JW-related Jobs with U.S. COYernment, other l)ul.>IIdprivJte employerS in W,15hington, D.C., throughout U.S. .mc;! abroad. $30 - J months; $5] - 6 months. federal Reports, 1010 ~rmonl Ave., NW, 1t40B·AH, Washington, D.C. 20005. I'hone (202) 39J·33 11. visaiMC. POSITION AVAtLAULE ilS aSsistilnt reporter of dcclsions, Ali1bama aplJCllate courts. Rcctuires 1;lIN degree; intCfl.'St and experience In legal writing; strong background in English grammar; ex· l)Crience in editing preferred. Requires stria attention to detail Submit appli. c",ion leUer with resume by April 2, 1989, to Gt.'t>rge Earl Smith, Reporter of DecisiOnS, Alaba"'" Appellale Courts, 1'.0. Box 21B, M(lntgomery, Alabama 36101 . For information, phone (205) 261·4621.

FOR SALE: One IBM Mas Card A In good working condition. $1.000 or best off(!r. Call (205) 28J·6855 in Talla5Sl.'e, Alabama.

ASSOCIATE POSITION available at pialflllffs' ~rSo nal injury firm in Mobile, Alabama. Salary and benefits commensurate with cx~ri(.'f'Ict'. Canclidates must be admitted to the Alabama Stilte Bar and should have legal experience. Send letler Jnd resumi! 10 Richard f. Pate, P.e., P.O Drawer 130B, Mobile, Alab;amil 36633.

FOR SALE/RENT: Giltllnburg condominium. Locatoo 111 Gatlinburg Summit compieM on Mt. l'larrison, S.S miles

ER ISA/EMPLOYEE BENEF ITS AT· TORNEY: New Orleans AV rilted firm seeks attorney with one to three years'

FOR SALE: Attorney re tiring. has vOIr· 10us law books for sale. Call (205) 263-7501 for further information.

The .... ,abama Lawyer

~."'_

...... I'O ........ _

...."'-

experience in ERISA <lnd cmliloyment law. Excellent academic credentials required. Recruiting Committee, P.O. Box 60 11 B, New Orleans, louisiana 70'160.

SERVICES EXAMI NATION OF QUESTIONED Documents: Handwriting. typew ri ting and related ex.lminations. International· ly Court-quillinl.oQ t?:pcrt witness. Diplomate, American Board of Forensic DocumCr\l EXJmlncrs. Member: Amer. Ican Society of Questlont.'CI Document ex<lmlners, the Intern",iollill A~S(lcl a lion for Idcntlnclltlon, the I1rlti ~h Foren· sic Science Society and the NaUOr\al Association of Criminal Defense lawyers. Retired Chief Document Ex.lmlner, uSA Cl Labor;l1ories. Hans Mayer Gld· ion, 218 Merrymanl Drive, "ugusta, Georgia 30907. Phone (404) Bti()-4267. LEGAL RESEARCH HELP: Experienced attorney, member of Alabama State ailf since 1977. Access to law scl1oo1 and st<lte law libraries. Wcstl:!w av,lllllble. Promj)\ deadline service. ~ do UCC·l searches. S35/hour. Sarah K;athryn Farnell, 112 Moore Building. Mont· gomery, Alabama 36104. Phone (205) 277-7937. In IcffelWfl and Shelby coonties. call fr(~ : 322-4419. No repreren\.lllon Is made about/he (IUality o( Ihe legal services 10 00 performed or Ihe expertise of the lawyer performlrlg such services.

LOAN CLOSINC STATEMENTS (com· puterized on H.U. O. (orm) with disbursement and amoni~at ion SChedules. Guarantet.od. Same day service. Nom· Inal cost. Fr(oe trial. Klol and ( 0., Box 76140, Birmingh.lm, Alab;amd 35253. PhOne (205) 87Q.5BS8. LEGAL RESEARCH ASSISTANCE: Ex· perienced attorney with strong research b;ackground avai lable to supplement your resources. Prompt, thorough service. $25-10lhour. Research Assoclales, P.O. Box 398, Cullmllll, Alabama III

Classified Notie 35056, (205) 739·2277 or (205) 734·4721. No rcpresclIIlllion is m.,dc <Ibout Ihe quality of Ihe iCg,l/ services to be perf()lmed or Ihe expertise of Ihe lawyer JX!rlorming such Services.

AUTO INDUSTRY EXPERT; COrlsuha· lion and e)(pert testimony prO'lided in illl!omotive dCillerlmanufilcturer dispu tes~ .ldd-poinls, rcloc;uions, tcrmin,l-

lions, allo(OIlio(1$, economic damages,

all fun clions of pcrsOllrlCl. Expert wi t·

ness, research, consultations, invesliga' lions. ConlilC! Charles HeilIO" , 2452 Fresno Drive, Birmingham, Alabama 35216. Phone (205) 979-262 1.

etc. Fast ~rvi ce. Able to lri1V\'l. Anlhl)ny COMPUTER CONSULTANT; Ob)cc-

Joseph Cataldo, fI, CPA, e MA, MAC.

VIDEO PRODUCTION SPECIA LIST;

l ive, pragmallc advice 1111d elq>erl help

PhOne (602) 688·2734 anyllrne, or write 4lJ4 North Radin Avenue, Tu c· son, Arh: OIM 85705, for brochure.

Fourt een years' eXllCriel1ce In all aspeets of vidco production, budget proI>OSalS and prolet ! svpervision. Complcle production facili lies iI\Iiliiable, ineluding compu ter llnimlllion llnd gr;,phlc SUI)port Fees ncgotillhle ;,nd oosed on project complLo:<ity. Call 8arry Parker, producer/direc tor, In 8lrmlngham 111 (205) 991-725 1,

w ith 'NOrd processing. billing. net'HOrks, e!e. A shortcu! to produetivi!y wit hou t mis!ak(.>s and hassles. I will survey nms, recommend hl,lruwl,lre l,lnd sonware, find best prices, install, customize. Ir.lin and support. Bruce R. GI;,ssmlUl (JD, 1972, member Georgia Sta te Barl. Phone (404) 392-1430,

SAfETY CONSULTANT: 20+ ye<lfS Cl(perlen ce in Industri al SlI fC!lY, Industrial hygiene, WOrkers' coml>cnsiltion lIdmlnlslra llon all{l lnsurance, Iralnlr)s. labor relations-union & non·unlon· and

•

Don't let your Alabama Lawyers get worn, torn or thrown away. Order a binder (or two!) at $10.00 each from: The Alabama Lawyer P.O. Box 4156, Montgomery, AL 36101

or call (205) 269-1515 SMAlL FIRM SOFIWARE

TRUCK ACCIDENTS - TIRE CONSULTING • TIre Consulting • RimfTIre EKp losions • Traffic Accident Reconstruction Truc,~ - ell' - Molorc~16 - Ped6!Jlrl8n

~i~'

fJ..

SMITH·ALSOBROOK & ASSOCIATES BOBBY D. SMITH, B.S.• J.D., Pre.lden1 P.O, Box 3064 Opellkl, AL. 36803 (205) 749-1544

'0" J'III ~'S MI l) (X)IIII'~ T!llla

$H' o SH·

11 M! ' In.UNO 1~UI1"'CCOUN1I N (I

INllOlU.lID TIME 81~~I N O , UUIT M<I<.lnlor ....,IOft • AH t H f .MII"f/

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~ w-,.. , A"""'Y"""-" ",,,W_ ....~,-..,. I"" lSOI AII5traIlan Ave. So. Sul1e 101

W, Palm ~h. PL 33409

(407) 686-9060

112

March 1989

Announcing a New Feature to the C T System of Corporate Protection:

Two-Day Federal Express· Delivery Of Service Of Process ... At No Extra Charge! Faster, More Efficient Delivery of

a llow us to quickly trace rind monitor any service o n its route to you _.. right In ou r own o ffice!

Process' No matter whnt the nnswer dniC-

Immediate Receipt of Important Legal

Papers'

whether it', days. or

weeks-process received by C T will be llutomntlcCllly

{orwllrdcd to C T represented compil nics via twodny Feder,,1 Express delivery servI ce. AI no add i· tlonal cost to you or your client! M:my Ilttorneys and legal assistants haY(! told us that this unique benefit alone covers the cost of ou r entire service. IOf course, we'll cont inue to provide telephone notification on short answer dates .. , without

additional charge.!

Automatic Tracking of Every Process

Delivered' Along with two-day

r-edcral ElCpress· delivery. every C T branch of(ice will be hooked up to the FcdEx l>Owership 2"

, ,

. -

Computer System. This s tate-of-the-ar t elect ronic trilCklng system will

•

Now when you nppoint C T agent. p rocess lind other legnl conlmunlcntiol1ll will be in your hnnds {aSltr, 80 you lind your staff will hllYl! more time to tllke npproprillte action.

Why More Lawyers Appoint C T I A tcam of cxperienced process IIge"ts, Accurate, reliilble report ilnd lax information . Dclinquencyllmpending cancellatio n notices, where IIv;\ilable, And now, two-day deliYl!ry of service of process . At no extra charge to you or your client!

Isn't this the right time 10 IIppoint C T IIgent in tvefysillte? Want more Informat ion? Just contact your local C" RepresentatiYl! today. Or write 10:

C T CORPORATION SYSTEM

2 PeaChlree Street N.W•• A UBIHA. Gt\. 30383 • Tel : 1-800-2 4 1-&824 Sc:rtll , tU 1I1f1lcy/,!1 plV;!J"'$.~'(}t1 " "co: 1892 AU,,,,. • BOllon • Chlc'80 CJndnl\lll1 • Oowl.nd • 1)Olf., [honVl'I • !)elloll • 11 00'1(101

1.. 101" C •. • L,u Jlnllt !.. Mlnn .. p olh • New York l'hll.d.lp"l. - I'ho~nh I'ullborsh - l'l.nto,lo ... 1'1 •• 5 .01 F.. nchto • SUIII, SI. Ll>uh • W.. hlns, on Wilmlnllon

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D I WIIn! more Informatlon.

NXt;l1l

Semel me, copy of your booklet, ProftJ!llolfll1 C T 511111110r1 RtJ,Irt'tlftnffml

and a no-obliglliion quol~

tion covtrlng C T repreIn _ stalel.

~nt atlon

,.,bbii(Sg

••

I'\r. WilU,1II D. Col.."n Capell, Hoourd, KMb~ ~ Cobb, p. O. Sn 2069 Hont90rr.eU AI.. 36197