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Mob'!. 6 SpolIls" FOlllllllln dtl Espoml). Mobile', Spanish Fountain was a giA from Spain, lInd is located at the comer 0( GoYemment aod ~l3mllton Itr«u. It w.u desl.lVJtd by oot 0( tilt gttlll rounlain tle5igntn olllw: world, Rul~ of Barct looa. TIle foun· tain Is sUr'YOOr.ded by Mf'ritndship ArchtJ and Itn c;oIorful flags. don.:attd by ten different pt'OYinca in Spain. They art desiantd to honor thole OIITM in Spain thai atrted the ilmtm M

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IN THIS ISSUE THE HIGHT TO COURT-ApPOINTED COUNSEL IN EXTRADITION PnOCEEDINCS ............................94 THE ALABAMA Enllcs LAw FOR LAWVERS ........

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Publi,t\&d SlIYlln ~mltl II year (the June 15~ue 16 II bar directory edition) by the "'lIoom, Stille Bar. P.O. Boll 41 56, Montgomery, Alabama 35101-41.56, Phone (334) 2£9-1515. Robot,t", l-IuHa.k .................... "•. "",,....... "........ .. ... " ..." .... Cl\ft~" ECIOtOot' Suaan SN.oeiI OtPtlOla" .. " .... " .............. 0...-05, CMmplln .. '''''''H.......' $v.." H. And," ."". MllfgaJat L Murpll)o .•.

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UtIdII G. FJiOPO, BII'~ • l.a..UIIna S. DavOa. ~ • VlctcNo J. F,III'IklIn·5juon, ~ • M. 00nIIId Jr., ~ • !-Ion,waliIm ~ 00r00rI. ~ , ~""", ~ JeCt\IOtI. CIavm ' ~ A.KIt'IInd. Mor "QO","Y • Jona!hIn S. CroaI, ~ , E"I/O'III ~. MuIh. ~ • $anW A, Rvm:w•• Jr.. ~~ , milam T. c.tIon. Jr.• MoiO\P''''y • Gregory C. BuIIaklw. MobIII' J. T1mottrr SmiIh. 811'''*''QhIm • RabOIn SeIIrt SniIh, ~ • NIl.,.., A. Nomt. ~m ' 0Ib0r8h !Wi SrrIth. 811'rnInghIm • 0IarIII J. McF'hIfIon, MDnIgDmer)I • Kallali1e W C<wweII, MontoMIe • Slww;y ()M)y HOwolI. ~ , Han. ~ W. ~ ~ , ~ 0.

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I::xecuti\'e Oirector's 72

I~eport

About Members, Among Firms

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.............. ...................... ........." ... P'or.lrUn' Vlc10r H. Lon. Jr .. MobIle ,•. " •.. " .. "... ................................................................................. f"nkl&nl '. , George P. Ford, Gadtden ......................... .." .. ", ...."." ........... ,.""'".. ",, .. "" .... "VIOe.I)r.tkI&rIl Kollh B. Nor"""n. ManlllD'n"y .. ,........... ,...... ,.... .."., .•• ,,,.,,, ............ ,, .............. ,8ect.,My

B""rd at C<ommlnlo""," III CI,wn. E. MiI,k E~I, IkJIler 2nd Circ:u~ . F,ank A. HIdunIJn, Q'OIInviIo. 3«I Clwil, LYM Aobt'\f(ln~. CI«yIofI. "01 CIrw/t, Ra~ N. HOblIt. s.tma, Slh CIreu/t, John Perqt 0IIYe<. II, OIlOMvlh. etn Circuit. PlatA! No. I, WlI~" P. C _ , Tu.ealool • . G,h Clrou/l, ~ No, 2. J. OouQIN MeEtv)'. 'nI&cIIooII. 7111 CIr<:uIl. AltnUl F. FIt •• III , AnniIIOO , 8th Circuit, WOOam E. SIIInn. Jr., o.calUl. 1IIt'I C,",uk, W. N. W~I""', Fl . Payne. 10101 Circuit. ~ No. I. &0......, H. F.. nl<lln. Wnn/nglmm. 100h CItw~. Place No.2, ./amel W. 0ewIn. BilmlnQIIl'II. I()I/I O'~'. ~_ No. 3, J. Mat~ 8~ll'h1ohlom. 1O\h Circ:u~. P'ItU No.~. S~......., A. RUOTlOfI, J,,, Bl'lIIIngham, 100h Ck!;VIl, Pl_ No. 5. Eowar(l p, ldG)'tteon, 6Itmlngllam , 10th CIfcutt.1"Iac6 No. e. MItO a. 8II'minghlom. 101t1 Clmln, Pl.ctl No. 7. ~ " . RowII. Blt~. IOtn Clrwil. PIact No, e. Mall C. ~. Jr.. 811'mInQIIaIlI. 10l1t CWcuIl, PlIce NO. g. carol H. 51 ......" . Birmlngllam. 1IMumfH Cul.off, Georgoo H~m , BelM"....., 11th Clrl:uIt. Robttll.. Gonet. FIor9f'Of. 12\11 C~CU". JOM!lto E. f'aulol. 110'1', 13111 Circuit. Place NO. I . Won,.." PIpft. MoI'lIIe, 13111 Circuit, PIaet No.2. Billy C. Blldsohl. MotlIIt, l:)tn Clfwn, " ' - No. 3, ClInt O"~ar. III. MObIIt, 13111 ClraPt. PI.Ice NO. ' , Benja'll8!l T Rowe, t.IobWtI. I.,h Circuit. P~ P. Nelson. 151h CltcuH. PI_ No. I. RaOorI D. ~. Man~. I Sih Cltwil. I'Iec. No. 2. Wanda D. Dewfeau •• Mootoorne/V. ISln C~WII, PIaooI NO, 3. J8mtt e , WIIIIatII!. ~OftlOOfl*Y. 15th CircuII.1"IIIC4O No.'. Richard B. am.H. MooIllD"*Y, 15th CWI. " ' - No. 5. O!lYl(l A MonIOO"'&"1. letn Clrcuit. GiIoorQ6 p, Forel. 0Idedet\. 171n CIt~I. tlrylor 1. Pe"y. Jr.. ~. 18th Circuit, CtlntDd 1,1. Fowl .., Jr .• Cokomblal1ll. Illth CItwII, ,IQM HooIIII ~ . Jr. Cta"1on. 201/1 CI'cult. Wilde 11. 8a!I1ey. DoIltan. 2111 CIr<:vII. CIIa,"" A. Godwin. Almot •. 22nd Ckcuh, EArl V. Johnaon. ~UM. 2'3«1 CIrw~. "'_ No. I, OOnrlfl $ , Pili. Hunlavlle. 23td Circuit. PlIce No. 2. PaUIck H, GtlII'N. Jr.• Hunlsvill. , 2~lh CIr(;UO,. Ocnald W. v..non. 251h CIrwH. 0I/Y<Jf F,MtiQ<; Wood. Hamlkon. 211m Ckcu~. Bow9n H. B08IMIl. ~ CII\I. 27th CkC\lll, John C. OUIIIIr.orn. AlbetMIIt. 28111 CIIeu". E.E. Bal . a.y MJ".n • • 29111 Circuit. R. sw.. LaElllby. TD~. 3Otto Cl!l;t,Ilt. J. Rob-.I Blnlily. 3tll CI«:uIt, WiIWam K. HllWkln , 'IlJecvmDia. 32nG Ckcult. Billy W JICI<.eon. CullMllrI. 33rd Ci«:u~. Rob-.I H. Brodgan. Ozan...:).I1h CIn:uIl. Roberll. R..... J<.• ~u-.olMIko. ~ C~~"".,IQM 8 , Betnttt, III. MontotV\llt. 36th CItCu~. Chili Matoon!. MOu~, 37th C~CI"1. J. 'llJ" Baflltll. 0pe1ka. 38th Circuli. 51ephen M. t<enNmott. $oolUboro.;»In CItwII. " - M, Cot(le!, Jr. At".,.,.. 40\11 ClrCYIt. John K. Johnton. Rocklord Thf ~ J,lI.JbIIe.htd _~ tlmn. yell'loo" S20 PI< year In 1l1li Un~1d StaiN ItId 125 per yea, 0IItaIr:Ie lilt U'llied SI8181 til' lilt .... sDlioma SI.16 8a" 415 Da>., .... Avtnue. MonlQOmtry. AlAI)fI~ 3611).1. SOIgIa ~U" 110 15.00 for lilt jo ... ~ .nd S251$6O lot lilt dI'Klory. ".,1odic81a POIII. pakll' M(IrlIODnl"Y...... baMa. IIId IOOillOr11i1l mllilino officH.

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neccllt Decisions 120

ALAIIM'IA STAff. UAIt IIf.M)QUA ItTE ItS STIU' F .415 [)eKI~' A""nU('. Mon!IIO~'Y. AI. 36!04 (:}34) w,I.1515 ••'AX (3J4) 261.(1310 • t:·rmil f~cUiitalabar.orQ t;,crcul ... [Ii,nl", ................... . " ........ K.llh II. NIlI"man t;,c"uti.. Aul.tan' ... _......... " ......... ........ ./.,... " .. 'Iiconn< Oi ..ctoo' al r OOl!noml ."..... "......... " .. ~.<foorud M. ".".._ Admlnl,t,.,hoo Aublan, fOf Proi...................ll.,dl AIYt$

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The ALABAMA STATE BAR 1991-98 Memberahip Facts 11.894 10,225

TOTAL MEMBERSHIP mombO!$ OU1-ot·S!ate momb!)!! Male

PRESIDENT'S PAGE

1115MB

By Dag Rowe

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mIl if becomes Ihullheru;s (J lot hapfxmillg inoolving Q /01 of IuU!yi!fS. Because our member$ $()r1U!limes (/(m', realite I/'hal alllhe slale bar doI!s, J ani devolillg this ·Presidell/:S Paflt1" to Q fC/liew Qf what if is and whlllil dW$.

"Does the Bar DoAll That?"

D_. flow. 10 M ARC H l oon

What I. the Alabilmll Stat. Bat? The Alab.lma Stat ~ Bar is a stale agency. created by statute, charged with the responsibility ofticensing and regutalinll lM\l)'tI'!. The b<!r is funded by our license fees and some uscr fees generated by such things M lhe oor exam. Althi,lugh Ihe 1),1T'S SJ.2 million annual budgr:t is included in the stille's general (und. no

slate rtvenu« are included In our budget. We are a IT\Olnd.ltolY bar, which means that attorneys who ,,"'ant to practice in Alabama must be members, With this "monopoly" and state agency status come certain restrictions on what the bar can do. I am occasion~lIy uskcd by both la~rs and laypersons why the state bar doesn't "t.~kl: a stand" on tort reform or on sonle other politrcal Issue. We can't because our bar is mandatory and nectssarlly diverse-we are an umbrella representing the plaintiffs b:lr. the defense b.1r Hnd every shade and stripe in between. /\!, Pust President Alva Caine once snid. "The state bar is evtry lawyer's common ground." One of our gools this year has been to reverse the increasing polariz.a. tion and factionalism of our profession. While we may have different specialties and varied philosophies and priorities, we are ultimately bnd C.55entially;u5t lawyers-and we can. In fact, all find "common ground" at the stale bar. J invite each of)'Ou to join in our efforts and activities to ell5Ure that our state bar Involves and serves all its members: plaintiffs' lawyers and defense lawyers, male lawyers and female lawyers. big

A TOTAL OF 71'110 OF III..L IN·STATE LAINYERS PMCiICE IN JEfFERSON. MODILE. MONTGOMERY. \o1A01S0N ANO TUSCALOOSA COUNTIES

firm lawyers and solo lawyers. There Is indeed a plxe at tht table for us all. but. as you can see from Figurt 1 on this page. it needs to be a big table. Currently, there are almost 12.000 members of the Alabama State Bu, and we are growing at a rapid rate. Presently, 78 percent or the bar members are male and 22 percent are female. In 1990.83.3 percent of Alai).,ma lawyers were rrole and 16.7 percent were female. In Ihe same seven )'i!ars, Ihe number of Afrlcan-AmericOin members has grown from 3.1 percent to <I percent of the tOlal membership. As)'Ou can see (rom Fleurt 2. our bar Is increasingly urban. the 10,225 of our members who are in-state. 37 percent are in Jefferson County. Seventy-ooe l>ercent of all in-state lawyers practice in Ihe five most populous counties. You might also be interested 1.0 see thaI our five leM developed counties each n.we only a nandful of lawyers. In this context.

flClUIiU

Counties with largest number of members Jot!lIr~on

3.764

MonllJOfTlory Mobllu

1.35J 1.121

Ma~lson

550

TU$l:RIOCI$Il

424

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it Is not surprising when we read that we a.re handling less than 20 percent 01 the legal needs of runmta's poor,

How I. the Alabama State allr governed, .ta"ad and organized? The bar is governed by a board of commissioners, composed 0158 Inc.n/)eN who a.re elected by lawyers from each judicial circuit. On the thool')' of wone person, one vote," Birmingh:am has ten conllnis.~ion ers, r-Iontgomery h35 five, Mobile has fou r, Huntsvi lle htls lwo, and every other circuit has one. By legislative lIuthority,and with lIJlllrOVal from the supreme court, the commissioners prescribe and administer rul~ goveming admission to the b.'ir and rules 01 conduct and discipline for its members. We have 32 employees housed In our 22.000-sQuare-(ool headQunrtcts 0 11 DC)lter Avenue, a few doors down the hill from Ihe slate capitol. The employ· ees are allocated to six divisions: 1. Admissions (staff: 3) 2, Center (or Pro(essionlll Responsibility (sta((: I I) 3. r-1embership (sta((: 2,5) 4. Programs and Activities (staff: 6.5) 5. Communicatiof1$ and Publications (staff: 3) 6. Administration and Finance (sta((: 6) What do•• the Alabama Stat. aar do? As you know, ont of Ihe primary (unc· tlons of your state Oar is the promotion o( professionalism among our members. Because of the troubling decline in professionlliism, we have asked the supreme court to permit us next year to require that all new adm ittees to the bar under· go six hours of training In professional. ism within one year of admission, We are confident that the supreme court will approve that Il"!.mdate and we look forward to providing ttl,l! needed service to our new lawyers. Our YOU"" Lawyers' Seetiotl and our Solo and Small Firms Committee are also ~ tudlli nR the implementation of a new statewide mentoring program, which is $Orely nceded. With the rapid growth of the bar and with more than 65 percent of practicing lawyers being either solos or with small firms, the need for mentoring can't be overestimated.

The Alablll"na State Bar has a history o( being in the fo refront of professional ethics, Ours was the first state bar in the nation to adopt II Code of Ethics, one thllt became the model for the Amerie<1n O"r Association in 1908. Notwithstanding lhat Ir"dilion, an important aspect of tht bar's regulatory responsibility remains lawyer diKipline. Last year, our staff attcmeys handled lIlmost 1.700 formal and informal ethics opinions, which are a great w3y to head off II disciplinary problem before it occurs, l~egretru lJ y, however, our Center for Professional l~espons i bi1i ty also received 1,64 1 elhics complaints last )!tar. A majority was summarily "screened out" because they lacked merit on thei r face, but as you can see from Figure 3, there Viere 144 that resu lted in the imposition of discipline. In (ac\. 20 ended with ei ther suspension or loss of license. Many of those complaints started as fee disputes and that is one o( the reasons Wl have started nGURf J

are now almost 8.462 lawyel1 participat. ing in the bar's 19 practice sectiolls: Administrative Law-147 IJ"nkru ptcy & Commercial Law-266 Business Torts & Antitrust L.1w-2 16 CommUI\ic.1tions Law-4 Corpol'll.te. Banking & Busin(ss Law- 142 Corporate Counsel- I54 Criminal l..aw-72 OiS,lbilities 1..aw-17 ~;Ide r 1..1w-14 Envi ronmentall..lIw- 129 Family Law- 293 Health l..aw- 133 International Law-55 Labor Law- 161 Litigation-167 Oil. Cas & Hineral t..1w- 127 (Colltiml(''(/ on

page 125)

JlOUR( 4

Oflica of the General Counsel 1996 Yearly Report

• Commlttoo 00 Clil/nt SecUlIIV ~und

COMPLAINTS ROC81vt1d

Scr8flr.ed OUVpendlng fllos opunod Clo~ wlo dlsclphne Closed w/dlsclphne Act lYO pending hies Formal charges pending I'flVilt6 repr imand, Public reprrmands w/o oonmal publrc;atlon Public reprlmar'id1 w/l)l!neral pubhcallon S~sp(llls l on$

Disbarments Sllrmnr1ar of liccn~e

KEY AREAS OF BAR ACTIVITY PUBLIC SERVICE

I.StI 1,277

• Commillee on Access to leu;a SelVltel • ConvrnUfIrI M Attoo'IatMl O!spt.a I\esokItDl

IndlO8tlt Datoosa CofMlltt8tl Plepald ll!g8l ServICeS Comm~tM law Dav Committee CIII/ens/up EdllC8\1oo Comrnlllee Committee 00 Corrll'Ctiooellnstltutions mnd P1ocadure! • Adult l ltl/racy Commillee

FOCUS ON THE PROFESSION

162 144

156 141

,.,

our Fee Arbitration Prognm. which i5 now up and functioning as a statewide, voluntal')' medililion service. As you know. Ule practice of law has become increasingly spt\:illlized in recent years. Even among thost of us who rCQIlrd our:sdVi:5 as general practitioners, most tend to establish areas of expertise which may dominate our interests, our time and our revrnut. ThI!: $t.ate bar has CKlapted its programming and structure 1.0 reneet that evolvement in our profe~ion. There

• • • • •

• Ed1tOl11l1 IIoafd 01 AJIIb.lrntt LIW)'fIf • PormMent Coda Commlnron • • Comm,ttOO 011 ~wyer PublIC ~elatlOll5 • Solo and Small Firm P1ae1lliorlOlS Ccmn'([OO • InsurmlCo P1ogr&ms Commlltllt • low Day Commilteo • Et~ics Education Committee • Comrmllee on Women In tile ProfeulQII • locIIl Bar ActMl19S In:! SeMces Ccmninee • Tan fOlC9 on Mlrlofil'( PartlClpetlQn & DPPOIIlllllty • HlstOl'/ and ArchIVeS Committee

BENCH & BAR • Bonch ~lId Bar Committeo • Sup!ome Cour! l~slon Comml·tlMl • JixirNI Co1f~ tor tt. S18It 01 AIabIme BAR MANAGEMENT & GOVERNANCE • long·Range Pibnnlng las!; Fooe lunC H

lOun 17 1

EXECUTIVE DIRECTOR'S REPORT By Keith n. Normall

A Milestone Celebration for The Alabama T Lawyer

l'ul/ fhuilhml NI)T/xlnHJ :)1(11"'. Mitrk Whilf.

kn NrJjI'tlff Xcl/JI aM RobtrllluffaA'I!r (I!tlli"'sctd uOOIllltw

"tilrl/! tkJ/I'" of llll' AI!l)Iarruo l..awy.or,

his )(muilry mMked a milestone (or The Alabama l.<Jwgcr. It was J 5 years ago thai Thl.! Alabama LlIIuyer untlerwenl a radical tr,msfonnalion, Not only were the size and the format of the maga~inc chol1ged. the contcn! was

altered and the frequency of the publi-

cation was increased. as well. While this might not seem the sluff of celebration, one need only reclIlIlhat the Lawyer had remained basially unchanged since its initiill publication in 1940, or (or mOTe than 40 yearsl

E. T. DrQwn of Binningham was the state bar prc5idcnt who appointed the Alabamil Lawyer Survey Committee, chaired by Mark While, /1150 of Birmingham, that recommended the changes in its 1981 final repOrt to the Board of Bar Commissioners, Although the changes to the fo rmat and style of the ulwyer were dr~matic. the final n

"' AR CH 1WO

report made clear that the subslance should not be changed and that The tllalmmo lAwyer should "... continue to carry scholarly works of interest and U~!;: to Ihe practitioner oflaw",dissemi路 naling ,urren! information 10 all memo bers .. ,," With one notable exception. the BOlLrd of Col'rlll'Lissi(lncrs adopted the recommendations of the ,ommiUee to change The Alabama l,(Jwyer. The tlnal report also stated: "It i~ recoll'L路 mended that a general newsletter be published during the months in which The Alubamll l.awyer is oot published and il should compliment The Alabama Lawyer." TWelve years later, the ADDENDUM newsletter was published, finnl l)' fulfilling the recommendations orlhe 1981 committee Tlmorl. As asla!e bar publication, The Alalxlma IAwytlr i ~ one 01 the oldes! in the country. Its content, layout and

design make it ont 01 the best, too. The qualit)' of The Alabuma wwynf is no ,u:cident. It Is the result of the ener~ies of the bar slaff. II graphic designer and II printer. plus the dedication of lawyers who serve as editOl's lind con· tributors. Each is responsible (or the fi nal product that you rcceille twry other month. We halle also had the good (ortune of hailing serious-minded and committed persom who have served as editors. Judge Walter It Jones served ru; the fir~ t edi· tor (rom 1940 to 1964. Following Judge Jones \\'ere Richard W. Neal (1964· 1968). J.D. Sentell (1968·1983) and current editor Robert A. lIuffllker. The devotion of these Indillidual$ h<l5 made TIIII Alabama {.owyer a first· rate publication, In Janual')', a luncheon was held M state nar headquarters to recognize those who played II pari in the ma~1Zine's trans{ormlliion, l\S well liS the members of the board of editors who h"'IIIe guided

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the {Awyt>rthe past d«ade lind a h.11f. We owe these people lind our coll eague~ who draft the artkles that comprise the rn.~g.~zine a great debt IJf gratitude (or lileir contributions to this outstanding publication. Without their commitment of lime and energy, we WQuld lack an iml>ortant ruource Ihat helps keep us all better informed lawyers. •

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ABOUT MEMBERS, AMONG FIRMS About Member. Deni ~e

I. 1..IIIIeion lumounces the

relocation of hI:!' office to 4321

Midmost Drive, Suite A, Mobile, 36609. Phone (334) 30~ ·0010 , PhHllp J. Sarrl~ IInr'1QUnce$ a chlll'lllC of hi$ mailing addres~ 10 3106

Independence Drive, Birmingham, 35209. Phone (205 ) 870-9940.

Wlbon MyefM announcCs lhe relocation of his office to 600 Robert Jemison Rond, Sui te B, lIirmingham. 35209. Phone (205) 945·8550.

Michael I). Mor!lan announces the opening of his private practice, His omee is lo<:ated at 4252 Cilrmich ~el

Ro" d, Montgomery, 36106. Phone (334) 274-1117. Beverly J, HQward announ,es a change of address to 640 S. McDonough St reet. Montgomery, 36104. Phont (334) 269-6964. I'llchael S. McGlothren annOll nce5 the opening of his office. His mailing address is P.O. Box 2263. Daphne. 36526. Kalhryn 1\. LepllCr announces the relocation of her office to 2100 Park Place, North, Sliite 1045, Birmingham. 35203. Phone (205) 324·1334. K. Da... ld Siwyer announces the opening of K. Da... ld Sawyer. L.L.C. His o(fice is located at 300 N. 2 1 ~ Street, Su ite 301. Birmingham. Alabama 35203. l'hone (205) 322·2331. RuUll1I K. Bu8h announces the opening of his office located at 812 Avenue A, Opelika, 36801. The mailing address is P.O. Box 135, 36803-0135. Phone (334) 141·4171.

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Piem, Ledyard, Lalla &: Wasden announces the reloc.'llion of o(fices to the Colonial B:mk Centre, Suite 400, 41 N. Beltline. Mobile, 36608. The mailing address is 1'.0 . Box 16046,36616, Phone (334) 344-515 1. The firm also announces that C. William DanIels. Jr. has become a shareholder and Stephanie K. Alexander, James Hobert 1\rrnip~eed, Michael A. Montgomery and Mark E, Tindal h.....e become "$$()CiatC5. fllISkell Slaughter Young & Gallion announces that Carter H. Duku. t-: Hampton McFadden , Jr. and John W. Scott halle become members, Oonald T. Locke has joined as ofcounsel, and Gonion O. Juperaon. 4'1ln ReynoldA. JOlicph N, Ibnien, Clinton C, Carter and Klmberl), L. lIager have become associates. O(fices are located al 305 S. Lawrence Street, P.O. B01 4660, Montgomery, 36103·4660. Phone (334) 265·8573.

Among Firm.

McDermott. wm & Emery allilounces lhe relocation of ofnccs LO 600 Thirteenth Street, N.W., Washington, D.C. 20005·3096, Phone (202) 756-8000.

Dllvld A. Tomlin.on. formerly with Conce. Young & Sibley. has taken a new position as general counsel with the FQundry of Ihe Shoall, Inc. The mailing address is P.O. Hox 916, Florence, 35631 . Phone (205) 160-2050.

Janetky, Ntwtll, Polls. Wt11, & Wilson announces lhal Judson William Wells has been appointed judge. District Court of Mobile CO Ull I)', and the name of the firm has been changed to JIIIICCky, Newell, PollS, Wilson. Smith & MlISterson,

Kathryn R, Shelton announces a change of address to the City of Hun!lIlHle, Ofnte or the City Attorney. Offi ces art located at 308 Fountllin Circle, P.O. Box 308, l'lun t~ville, 35804. Phone (205) 532·730 1.

BdT r.... Soum<>l&. I.c. 600 Inl'll SlrttI. Sdl~ IIlI

• {"OWI!. "

David A. Garflnkel. fo rmerly a part· ner of Dalt, Jacobson. Lembcke & Garfinkel. announCE! the opening of his office located at 2064 Park Street. Jacksonville. lo"iorida 32204. Phone (904) 384.4989.

Engel. lIain ton & Johanson annourlces that Sherrie L. Phlllill8 and Btentorl K. Morris hlwe joined the firm as associates. O(fices are located at 109 N. 20'" Street. 4'" Floor, Ilirmingham, 35203. Phone (205) 328-4600.

William Robert l.ewls, fo rmerly of Pate. Lewis, I..loyd & Fuston. annollnces the fo rmation of WlIilam R. Lewis & A"oclates. Offices are located ~t 120 Euclid Avenue. Birmingham, 35213. Phone (205) 87 1·3900 .

..=_:::-;"",=_ ::-- - - - - - - - - - - - - - - - - - - - - - - -- - - - - -

.---',~",c~~.o

Caines. Wolter &: Kinney announces that Chrlstollhu 8. Greene and Julie OavlJ "earee hllvejoined the fi rm as associates. Offices are located al 22 InverneS$ Center Parkway. Suile 300. Birmingham, 35242. Phone (205) 9805888. Ilurge:u &: lIaleannounces thai Ethan R. nettling. Samuel (II. Ingnm and Van O. McMahan have joined the firm M M!odates. Offices are located at 450 Park Place To.....er. 200 1 Park Pillce. North, Birmingh.'1m. 35203. Phone (205) 71 5-4466. Sliver &: Volt announces that the firm name has been changed to Sliver. Volt &: Thompson. Irving Sliver. Lawrtnce B. Volt. Barry L. Thompson and Thomas G.r. ~ndry are members. Offices are located at 4317-A Midmost Drive:. Mobile. 366&1-5589. Phone (334) 343·0800. lIule. Femambucq &: SteVo'l'Ir1 announces that Martha l..each Thompson and I'.trlck O. GI'lIY have become associ· ates. Offices are located at 800 Regiom Bank Building, Birmingl'l.'lm. 35203. l>hone (205) 25 1· ) 193. Ihll. Conerly, Mudd &: Boll/ig announces Ihal P. Ted Colquet! and LInda It Ambrose have joined lhe firm as associates. The mailing address is 1400 Finllnci3] Cenle:r. 505 N. 20'" Street, Birmingham. 35203-2626. Phone (205) 25 1·8143,

Nowlin &. McAnnall)'ll nnOUr\(e5 that Jamu Patrick Lamb has become an associate. Offi cCJ) are located at 11 8 E. f.10ulton Street. Decah.r, Alabama 3560]. Phone (205) 353-8601. W~bb &: Eley announces that Lorelei A. Leln has joined the firm. Offices are located al 166 Commerce Street. Suite 300. P.O. Box 238. folonlgomery, 36101 0238. Phone (334) 262- 1850.

Scott f) unald8on and I'. ul~ W. HIgginbotham announte the formation or Donaldaon &: III.1Ullnbolham. L.I..P. Ofl'ices hal/e relocated 10 10072 1Avenue. P.O. Box 2344, T\.Iscaloosa. 35403. Phone (205) 750·0098. Yearout. Myera &: 'l'nylor announces lhat John G. W,tls and O. Olrie Thomu have Decome a~iates. Offices lire relocated to 800 Shades Creek Parkway, Suite 500, Ilirmingham. 35209. Phone (205) 414· 8160. Thomu, Melln~ &: Gillis announces that Wendell Chambliu and Millon J. Wettry have become auoclates. Offices are located at 505 20'" Street. North, Suite 1035, Birmingham. 35203-4607. Phone (205) 328·79 15. While. Dunn &: Booker announces that William (It. Howen, Jr. has joined the fi rm. Offices are loclled al290 N. 2 1 ~ Street. Masse), Build;n". Suite 600. Birmingham, 35203. Phone (334) 323· 1888.

Orol &: Stirling announces that Darby R. Wolf has become an associ· ate. Offi ces have relocated to 517 Beacon Park. West. Birmingham, 35209. The new mailing addrcss is P.O. Box 19()()47. 35219. I'hone (205) 9A5066A.

Slevt Olen and Steven L. Nlcholu announce the formlltion of Olen & Nlcholu , formerly Olen, McC lolhern & Nicholas. Offices remain located al Riverview Plaza Office Tower. 63 S. 1~(IYill Street, Suile 710. P.O. Box 1826. t>1obile, 36633. Phone (33A) 438-6957.

Huntley. Jordan & An oelatet announces that Kt11l D. 'liylorEtheredge and Alvin K. lIo~, II have become associales. Offices are located al 503 Covernmenl Street. Suite 20 1, P.O. Box 370, Mobile. 3660 1·0370. Phone: ~334) 434·0007.

CU8lmano. Kelner. Robert. & Kimberley /lIInounces thal PhlUp E. (llIIu has become a shareholder. O(fices aTe located at 153 S. Ninth Street, Glldsden. 3590 I. Phone 1205) 543-0400.

Mlc.hllel S. Burroughs and Sandra C. Guln, (ormerly of PhelllS, Jenkin5. Gibson & Fowler. ,lI1nounce Ihe formation of Burroughs & Culn. L.L.P. Offices are located at 221614· Street. 'JUscaIOOS/J. 35401. Phone (205) 349·5470.

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Cloud &: Cloud announces lhe relo· cation or offices to 521 Madison Street, I " Floor, I tuntsville. 3580 I . Phone (2051 533·9480.

LANDTECH DATA CDRPORATION

Sigler. ~loort . Clemenia. Wolfe &: Zoghby announcesIhe wit hdrawal or Patrick M. Sigler from the p.lrlnership

Floyal Palm Beach, FL 33411

1402 Flo)'al Palm Beach Blvd.

Building 200

MA"CH

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and lht changing or tht firm flame to ~Ioort. Clement •• Wolfe II:: Zoghby. Offices are located lit 107 Saini Francis Street. Suite 2525. Mobile. 36602. Phone (334) 433·7766. Haymond C. Wlnliton announces that Norman C. Wlnliton . Jr. has become an associate. Omce~ are located at 1800 12" Avenue. South. Birmingham , 35205. Phone (205) 933-2300. ralton. lAtham. Legge & Cole announces that Charla D. Oalogh has become an associate. omus are located at 315 W. ~Iarket Street, P.O. Box 470. Athens. 35612. Phone (205) 232·2010. !.loyd, Schreiber & GI'lIIY lUlnounces that ThAlIa ~1. Thruher. lIoward Y. Downey. James A. ()alton. Jr.. Jennl(er A. McCammon :md John T. Hllolldo, Jr. have become associates. Omces are located at 2 Perimeter Park, South. Suite 100. Birmingham, Alabama 35243. Phone (205) 967·8822. Jock M. Smith announces that Fannie Sampson· lJull, has become an IIS5OCiate. Offices have relocated to 306 N. Main Street, Tuskegee. The mailing ~ddrC~5 i~ P.O. Box 8.10419. 3608:1. Phone (:134) 727·0060. Bond, !Jotea, Sykatu&& Laraen IInnounces that Janna L. (fahln hu joined the firm. Omce5 are located al )02 S. Court Street, Suite 314, Florence, 35630. Phone (205) 76().1010. Ilarria. Caddell & Shanks announces that Je((rey S. Brown has become a parlner. Imd lIuel lIamli has ~come an assocl:lte. Ofnces are located nl 214 Johnson Street, Southeast. The !ll8iling addrc5s 18 P.O. IJox 2688, Decatur. 35602. Phone (205) 340·8000.

The firm name has changed to Owen, & Almond, L.L.P.. and that Aplillah G. Owen. has ~come a partner and Anna C. Northington has become an a.uoci-

ate. Offices are located at 2720 6'" Street. Suite 3. Thscaloosa. 35401. Phone (205) 750·0750. Wllllallll , Potthoff & WUllam. announces that Joel I'. Smith , Jr. has become an assO(:iate. The mailing address is P.O. Box 880. Eufaula. 36072· 0880. Phone (334) 687·583<1. l)alnbridge & Straua announces lhe relocation of its offices to 2210 201 Avenue. North. Birmingham. 35203. Phone (205) 324-3800. Pittman, Pittman & Cuwle announces that IUchanl W. Fuquay has been named partner. The new firm name will be !'Ittman, Pillman, Clrwlll & Fuquay. Janine M. .\tcGlnn!. and KdU Win h.lve become o1S5OCiatc~. Omces nrt located at 1111 Dauphin Street, 1>10bile:. 36640. Phone: (3.14) 433·8383. lIand Arendall anrlounCtS that Henry T. ~Iorrluelle. Patricia J. Ponder. EdwIn O. Rogen and J. Stephen IlarvC)' hnve become members. The firm also announces that J. Ken Thoml)SOn, Jallile W. Belbeze, IIkhnrd M. Gaal. E. Shane lJIack, and Jeffrey O. Dyeu have joined the firm as associates. The firm ha$ offices in Birmingham (205) 324-4400. Montgomery (334) 264-5532. and 1>lobile (334) 432-55 11. Frtd Llwton, III Mr\ounces thai William Randall PZ)'lIe has become an associate. Offices are located in the AmSoulh Bank l3uilding, Anniston. 36201.I'hone (205) 238·1984.

Gilmore LI,,· Ornce announces that D. Gregory Dunigan has become an associate. Offices are located at 11 6 Court Street. P.O. Box 729, Crove 11iI1. 36451.l'hone (334) 275·31 15.

I'DIII A. Avron and I).vld ~llIrphree announce the formation or ~Iurphrte &. Avron. I..L.P. Omeu are l0C3ted at 200 Frank Nelson Building, 205 N. 20'" Street. Birmingham. 35203. Phone (205) 327-5555.

John A. Owfna :md M. Br.ldlcy Almond of Owtns. Carvtr & Almond annOUilce Ihat SusIe T. Carver lUI! joined the professional staff of Ihe Unlvenlty of Alabama School or Law.

Llnge, Simpson. Roblnlon &. Somerville announces a name change to Lange. SImpson, Robh18011 &. SOlllel'\lllle 1..1..1', ilnd that DaYld It 111111. Fl'lIInctll .~ . King, Jlal'lllid E.

n~il ey

and Jeffrey E. lIolmti have btcomt partners. Michatl A. 1'011 has become an aASOCiate. and Cleophlll Thomll, Jr. and Will ~t. Booker have become of counS4!J. A new office has opened in Anniston, located at the SouthTrust a.,nk Building, Suitt 50 I, 36202. Other locations are Ilirmin"ham. Hunl5vllle and M ont~Ol11 ery.

Zieman, Speegle, Oldlfeller & Jackaon IIIlnOUrlCe! thM Ben II. llarrb. 111 has become an associate. Offices are located 1113200 )" National13.1nk Building. 107 Saint fo'rands Street, 36602. The mailing address is 1'.0. Box II. ~Iobile. 36601. !'hone (334) 694-1700. Arthur Andersen an n (lUl1ct~ IhM J. Hartley Cavender has joined as a lIIanagel'. Office~ arc located lit 633 West Fifth St reet. Los Angeles. California 90071. Phone (213) 614·7580. Drown & Dattlel L.I..C. announces that Daniel J. Reynold •. Jr., formerly a circuit judge of the tenth judicial cir· cuit, has become of counsel. Offices aTe located at510 N. 18- Street. Bessemer. 35020. I'hone (205) 425·700 I. Akridge &. BDlch announCe! thllt Robert II. Cochran has become an associate. Officts are loc.~led at 1702 Catherine Court. Suite 2·1), Auburn, 36830. Phone (334) 887.0884. John. tone. Adams, Dalley. Gordon and IllI'rll. a ~Iobile law firm which this )'tar celebrated its 100'" anniver~ry. has opened a Haldwin County office. The firm also announced that Charle~ C. SImpson, Ill, formerly a p.lrtne:r in Owens, Benton & SirnpMln. has joined the firm ami will bt residenl in the Ii;Jldwin County office. J. Conner OW(!nl, Jr.. also a rormer p.lrtner in the firm of Ov,·ens. Benton &. Simpson. will be ofOOUltse/ to the firm in Bay Hinelte. BO)'d F. Campbell. p.e.. of Montgomery and the Irnmiarallon Law Center, I'.C. of Birmingham announct the formation or the Immigration Law Center, L.I.. I'.. and tht cpcn!ng of nil ()ffi(,;~ at 1621 S. University Boulevard, Suite B·3. r.tobile 36609. Phone (334) 662-0314. •

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BAR BRIEFS He entered private practice In Opelika and aiso continued II family tradition of being general counsel of Auburn University, until 1995. llc served as Opelika 1>' unicipal Court Judge for 17 years. Civic activities have included serving as president of the Opdika Kiwanis Club. president of the Opelika Chamber of Commerce and chair of the United Way. Ue is active in the Trinity United ft' et!lodis\ Church.

• The Lee County Hat

Au oclatlon recently awarded the "Spud Wright Jurisprudential Award" to Thomll Samford, The award is in memory oHlle late Judge Spud WriJtht and honors members of the ItlPi profc$$i(ln by reCOllnition of a Cdreer of extraordinary contributions and ser· vice to t he legal profeu iOrlllnd

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MEMORIALS John Peiers Ansley hereas, John Ansley was an active membtr of the Birmingham Bar Association lind the Alabama Siale Bar ilt the time of his death on WtdncsdllY, October 15, 1997: and. Whereas, JOM Ansley was born in Philadelphia on January

14 , 1914: and,

Whereas, John Ansley's family moved to Birmingham where his father was (or many years the principii) of IJilrrcU School (Woodlawn): and,

WherellS. John Ansley ntlended the Birmingh(lm Public Schools lind while II swdent III Phillips )-lilth School won the annu,,) statewide oratorical cont.eslsponsored by the IJirmilJyh(l1ll Nilws: and, Whereas, John An ~lcy's inlerest)n public speaking and in Alab.lma history and polltlcll[ science continued. Discussion of politic$ often led to his recOImng nnd recounting the moving acceptance spuch of Adlai Stevenson: the {ireside chats of FOR; Winston Churchill's courageous nnd eloquent war·time speeches: IInd the political Dnd judicinl ClIreer of Justice 1·lullo Black - all these and more furnished interesting and provocati\'e conversations: and, \\lherea.s, John Ansley attended the University of Alabama and was awarded his undergraduate and law dellrus by Alabama, At the university he was a member of the Sigma

John McNeel Breckenridge hereas, to1ack Breckenridge, who died on June 1. 1997,

was a men,ber of Ihe Birminghlll\\ Bar W Association lind the Alabama State Bllr; and, lon~· t ime

Whereas, Mack Breckenridge was born in Samson, Alabama on Augusl4, 1907 where, upon his falher's dealp, he llssumed, at the age of 16 years, a father·like responsibility of helping his mother raise his seven younger brothers and sis· teu: and, Whereas, Mack Breckenridge, under those dimwit circumstances, gradu~led from high school, attended and graduated from Birminglnm·Southern College and received his law degree from Birmingham School of Law; and. Where"s, f.l"ck Breckenridge served his count!')' well in the Uniled States Navy in Ihe South Pacifi c during World War II : and, WhercllS, to111Ck Breckenridge joined Ihe City of Birmingham Ltgal Oepilrtment in 1968 as an attorney, repre· sentlng the Cil1 of Birmingham under ft\'e mayors (W, Cooper Green. James W, f.lorgan, Art llanes, Albert Boutwell. and George Seibels), and served as city attorney from 1960· 1974, difficult. turbulent years during which Uirmingh3m

Alpha Epsilon social fraternity; and, Whereas, "Ihe law (or John was II "zealous nisl ress:~ with golf and 5hO<ll Creek as close seconds: and, \Vhereas, John Msil,), WIIS II mtmber of the Alabama State Bar and the Binningham BM Associatiorl since 1938, a long. time partner in Ihe law firm of Spain, Gillon, Riley, Tate & Ansley, and practiced law for over 40 years in Birmingham: and, \\lhertllS, John Ansley was an agent in the Federal Bureau of Investigation during the war )'tars: and, \\lherellS, John Ansley was a faithful member of Ihe Pir$t tolelhodist Church of Birmingham and in later ye<lrs of Canterbury tolethooist Church: and, Whereas, John, in hi$ personal life and profc ~~ior\, ~ough t 10 foll ow the exhortat ion of the prollhcl Micnh to "do Justly, love mercy, (lnd walk humbly with thy God"; and, Where<15, we de5i re to express our deep regard for John Ansley and our profound ~e n se of loss in the passing of our distinguished colltague who strved our profeMion well, Now, therefort, be it resolved, that this resolution be spread upon lhe minutes of this executive committee and copies thereof be stnt to Ruby Syx Ansley, John's beloved wife, M

- lephen 0 , Ihningn ')resldenl. Ulnnlngham Har A.udt.iation

benefited gre"lly from his wisdom, fairness, se lf·restraint. and unf"i ling courtesy: and, Whereas. Hack Breckenridge enlered lhe private practice of law with the law firm of Cabanlu, Johnston, Dumas, & O'Neal for approximately ten years after reti ring as cily attor· nCy; aMI, Whereas. tolack Breckenridge was an active member of AldmgJlte United tolethodist Church (formerly known as I::leventh Avenue tolethodlsl Church): and, Whereas, we desi re to expre» our high rell:lrd (or M,lck Breckenridge and our deep sense of loss in the pll$~ing of out distinguished colleague who served our profcssion well, and p.1rticularly to express this to his wife of 59 years, Ann Threadgill Breckenridge; to his sons. John HcNeel Breckenridge, Jr. of Thmpa, FloriWlllnd Joe Boytr Breckenridge of Oinningh3m: and 10 his daughter, Judy Breckenridge Mann of Binninghllm: lind to the rest of his fllmily, It is therefore, hereby resolved, that this resolution be spread upon the minutes 01 this executive committee and copiC$ there· of be sent to his wife, Ann Threadgill Breckenrid,le. - Stephen D. lIenlnger 1)l'f:l ldcnl. Birmingham On AnoclatlQn

John Patrick Carlton hereas. John Patrick Carlton was an active member of tht l)irrningham Bar and the Alilbama State W Bar Mlhe time of his death on Sunday, f.1 hY 18. 1997; and, i\s~oci hli o n

\V1'1l'rcM. John Patrick Carlton attended the University of Alabama, graduating in 1958 with a bachelor 01 am degree after performing as First Trumpet in the r.liliion Dollar Band: and, Whereas, John Patrick Carlton graduated from the University of Alabama School of L"w in 1960 with 11 bachelor of law5 degree: di51inguished himself as editor-in·chief of lhe Alalxlmo 1..oU! Review; as an honored member of Omicron Delta Kappa Society, Sigmll Delta Kapp<, [.(IW Fraternity and Theta Chi IIrllternity; and,

Whereas, upon his graduation from the Univenity of Alabalt1{l School of Law, John Patrick Carlton pr3cticed law for three years in lhe United States Army Judge AdVQC..lte General 's Corps, and beginning In 1974, founded lind prac· ticed in the 11IW firm under the name of Carlton, Vann & Stich¥.'eh until hi~ death: and, Whereas, John Patrick Carlton was recognized and hIghly regarded by lhe btnch and bar as a keen and diligent lawyer who promoted Justice while fai rly ,lI\d vigorously representing his clients, and setting an example of selflessness and profes·

Richard Hughes Clem hereas, Richard H, Clem was a member of the Birmingham Bar Association lind the Al~bama State Bar at the time of his death on April 23, 1997: tmd, Whereas, Richard H. Clem was born in Jefferson County on January 3, 1930 and was 1\ lifelong resident of Birmingham, grlldullting from Woodlawn High School In 19<18: and, Whereas, Richard H. Clem aUended Howard College and joined the United States Army. serving in the 82 nd Airborne Division during the Kortan conflict; and, Whereas. Richllr't1 1'1 , Clem returned to Birmingham, com· pleted his undergradullte studies at the University of Al~bama at Birmingham in 1973: and worked In the contract division at Hayes Aircraft: and, Whereas, Richard n, Clem receivtd his juris doctor degree from Birmingham School of I....w and was admitted to prac· tice law in the State of Alabllma in 1977. practicing IlIw until 1984 when his health forced hi m to retire: and. Whereas. RicharJ H. Clem was a lifetime member of Ruhama BDptist Church, having Krved as the chairman o( deacons on numerous occasions and the teacher of the

sionaiism by providing many hours of pro bono work: and. Whereas, John I'l!.trick Carlton was an aclive l i~ long memo ber of Central l'ark Baptist Church, joining Ihe sanctuary choir at the age of 15, and faithfull y serving as chairman of the deacons, chairman of the bo.:lrd of trustees, and interim minister music: and, Whereas, John I'atrick Carlton loved life and Ii\'flllife to its fullcst, performing with the Birmingham Town Mld Gown Theatre under Ihe direction of James Hatcher. arxl portraying lhe role of his personal Idol, Franklin Delano R()()5j!velt, in productions of "Annie" and In a one·man show throughout the sl1Ite and Southeast, to great acclaim: and, Whereas, we desi re to exprcss our deep rell-lrd for John Patrick Carlton lind our profound sense of loss in the lXluillg of our distinguished colleague who Krved our profeSSion and delighted the hearll of untold Alabamians, It is therefore. hereby resolved, that this resolution be spread UllOn the minutes of thi~ ellecutive committee and copies thereof be sent to his wife , Carolyn. and to his children and their spOuses, Laura C. and 1. Scoll Vickery, Clarence A. and Mary K, Carlton, and I'aul J, Culton, III .

- Stephen D. lIeninger Pretldenl, Birmingham au An oelallon

Outreach Sunday School class for some 20 years: and, Whereas, Richard H. Clem was active in the East Lake Masonic Lodge and the Kenny t-10rgan Group from Woodlawn High School which rai$ed money (or Samford University ~'oolb.all Scholarships; and. Whereas, Richard H. Clem, following his retirement, spent countless hours providing legal ~t.'rvi ces and assistance to frie nds and members of his church al no expense; and, Whereas, Richard H. Clem was recognized as one who gave freely of his time, lived a full, but modest life and provided an eKample of "II th"t is good and right in our profession; and, Whereas, we desire to express ou r deep regard fClr Richard Hughes Clem and our profound sense of 1055 In the passing of our distinguished colleague who served our profe!sion well. It is therefore. hereby resolved, that this resolution be spread upon the minutu or this executive committee and copies thereor be sent to hi ~ wife of 47 years, MaT}' Louise Clem, his daughter, Patricia Clem Slocum, and hi ~ son, Richard Hughes Clem. II. _ Stephen D. lIeningt'r Prellident , IJIrmlnghft nl Bar Auoclallon

James H. Dodd hereas, James Dodd was an active member oflhe

W Birminghlm Bar As$OClation and the Alabama State Bar at the time of his dealh on Saturday, January 18, 1997; and, Whereas, James Dodd ..... 015 born in Carbon Hill, Alabama on September 8. 1924 and Ilr"dualed (rom Walker County IUgh 5<:11001 in 1942: and, Whcr(:as, James Dodd next entered the United States Air Corps and wa8 1rained as II cadet officer at the Universi ty of Tennessee, lind then, as 1\ Lieutenant and n11vl(llllor, new 60 missions In the South Pacific during World War II lind earned a number of combat medals; and lames Dodd was discharged (yom the Air National CUMd in 1962 with the rank of captain: and. Whereas, James DOOd gradullted from the University of Alabama L/lw School in 1951 /lnd practiced law in Birmingham until his death: and, Whereas, James I)ood was recogniied and highly regarded by the bench and bar as a keen and diligent lawyer who f.. irly and fearleS5ly purst,u:d the causes of his clients and the (busts of justice while providing .. n eKample of 1111 that is good and right in our profusion: lind,

Merron Alton Hodges herells, f.1trron Alton l-todges \\'a5 a member of the Birmingham Bar Association and the Alabama State Bar W althe time of his death on Saturday, May 31. 1997: and. Whereas, folerron Alton l'lodges received a B.S. degree from the University of Texas (Austin), and M.Ed. degree (rom Eastern Washington State Collc"c, a Ph.D. from the University of Texas Itealth Science Center of Iioustol'l al'ld a ) .1). degrH (rom Birmingham School of law: and, WhercM, Dr. Ilodges was Ilprofeuor al the University of Alabama al Birmingham a!ld secrellll')l of lhe Birmingham Bar Auociatlon'J Medical L.lllison Committee: and, Whereas, Dr, Ilodges' involvement in research and publiC policy included being special assistant for lhe president o( Health Policy Dtvelopmenl al the University of Texas Health Science Center of Houston from 1982 to 1984 as well ali legislativt assistant 10 United Slates Congressman Phil Gramm from 1980 10 198 1: and, Whereas, Or. Hodgu was the recipient of numerous

.... "CM'Do.

Whereas, James I)odd receiwd many honors and awards during his carur, including being inducted into Alabama's Who's \Yho: and, Whereas, James !)odd was an a(tivt member of I~idgtcrest Baptist Church from 1957 and taught Sunday School there for many years; and, Whereas, James Dodd gave freely of his time ~nd to ~rving his church and his community; and, Whereas, James Dodd loved life and brought aood spirit to all who had the occasion to know him: and, Whereas, we desi re to express our deep regard for James H. !)odd and our profound sense of 1055 in the pas5ing of our distinll:uished colleaguc who 5cIVcd our profe55iun well. Now. therefore. be it hereby resolved, thllt this resolution be spread upon the minutes of this executive committee and copies thcreof be ~ent to Connie Brazill>odd, his wife: William Brent ))odd, his son and law partner: his datlghters, Karcn 7.ito and C rim~ Franco: and his brother, Lewis G, ))odd; and his stepmother, Bida I)odd, - Stephm D, Heninger Pruldenl, Blnnlngham Bl r Au oclatlon

awards, incilldinll: outstanding author, Jouma{ 01 Alfied Health, 1987; award of merit, TeKa$ Society of Allied Health Professions, 1982: presidential citation. Amerian Corrective Therapy Association, 1977; as well as other ~wards: and, Whereas, Or. l lodgcs was a member of the Association of Schools of Allied Health Professions, the American Congress of Rehabilitation Medicine, National nchabilitation Association, and the Smithsonian AMociation: ~ n d, Whereas, Merron Alton Hodges was well-respected in the community (or his work in the medical, legal and educational fields: and, Whereas, we desire to express our deep regard (or Dr. Merron Alion Hodges and our profound $en!.e of loss in the p;Issing of our disting1.lished colleague who !.eMd our prof~$iol'l wtll. It is, therefore, hereby resolV(!d, Ihat this resolution be spread upon the minutcs of this executive committee and that copies thereof be !.ent 10 Dr. Hodges' wife, Mal')' )o I-todge.s. - Slephm I) , Ueninger J' residenl, Birmingham liar Auocialion

Judge Joshua Sanford Mullins

Wherc<l5, 1923 In

Jud,e Joshua Mullins WiU born September 9, Ale~nder Cit)'. numll County, Alab,unil, nnd

died March 3, 1997, in Birmingham. Alabama, age 73 years; and.

Whereas, Judge Mullins graduated from Marion fomitary Institute, after which he entered the University of Alabamil L.1W School where his studies were interrupted by service in lhe United Stales Army Corps during World War II : and. Whereas. Judge folullins f llded his missions as a bombardier navigator in 8路255 of the 'JWelfih Air Force on VE Day. (rom which he returned to grluJuate from the University of Alabama L.1W School in 1946: and, WherCII$, Judge HuUin! enlered the practice of law in Birmingham, Alahilmil. in the firm headed by Harvey Deramus which btcame Deramus &: l'>l ullin~ in 1950: and, Whereas, Judge Mullins was elected to the circuit court bench in 1976 and served in lhe civil division of that court unlil his retirement in 1995: he then returned to the succes'

Barry Reed Tuggle hereas, Barry n Iggle was an actilJt member of the W Birmingham Bar Association and the Alabama State Bar at the time of his death on Monday, June 30, 1997; and, Whereas. Barry 'lUggle was born on June 21. 1967, in Birmingham: was raised In l'luffman, Alabama; and graduated from the University of Alahamll with a b.1chelor of arts degree, majoring in history; and. Whereas. Barry fuggle received his juris doctor from the Oirmingharn School of Law on May 22. 1994; and. \Vhereas. Barry 1\.Iggle distinguished himself while in law school as a member of Sigma Delta Kappa, a legal honor soci路 ety: and. Whereas. upon his gradUalion from the Birmingham School of Law. Barry 1\Iggle practiced law in BirminAham, Alabama. with the firm of Johnson, I.iddon & 'JUggle. until Ihe time of his death: 'lOd. Whereas. Blltry TUggle W/U recognized and regarded as a keen and diligent la....'Yer who fairly but fearlessly pursued the causes of his clienu and the causes of justice while providing an example of al1 thllt is good and right in our profession; and. Whereas. Barry 1\1ggle was an :lcllve member of Hu((man Baptist Church; and,

sOr firm of Deramus & 1>1ullins, Johnston, Barton, Proctor & l'ov,'el1, L. I..P. until his death: and. \Vhc rea~, Judge fo1ullins will always be remembered by all who practiced before hi m for his legal schola r~ h ip. integrity and dedicated service all leavened with a kindness, a $ense of humor, and a care that lawyers' and litigants' expectations of the judicial system be met: and. Whereas, Judge Mullins thereby was dee ply respected, admired. and loved by members of the bench IlIld bar, as well as the community at large; and. Whereas, we desire to express our deep regard and $fnse of loss in Ihe paSSing of our brother in this honorable profession. It 1$. therefore. resolved. that this resolution be spread upon the minutes of Ihis e~&utive committee and that copies thereof be SCi'll to Judge Mullins' wife, Jane, and to his $On. J. SMford fo1u11ins, 111, and to his daughter. Maryon A. Allen. - Stephen 1>. lIenlnger I)rtlldenl. Uinningham 8 11 T Au oclation

Whereas, Harry 1\Iggle gave free ly of his time, actively serving as II. member of the Birmingham Bar Associati(l'l, the Amerialll Trial Lawyer5 Association, tile Nlltional A.lsociation of Crilll inlil Defense 1..llW)'ers. the Alabama YOUI1S Republicans, Dnd the chairman of the Policy t:~change Foundation; and, Whereas, Barry 'JUggle l()\Ied life and lived life to the fu llest. bringing laughter lind good spirit to all who had the occa51011 to know him, and who posseued " Shilrp, quick wit and a contagious sense of enthusiasm; and, Whereas, Harry n iggle was Ii devoted husband to his wi(e, Sallie, and iI loving father to his da ughter. I.ila, who looked forward with anticipation and delight for the birth of his 5econd child, Barrie need, born on December 16, 1997: and. Whereas, we desire to express our deep regard for Barry Tuggle and our prOfound sense of 1055 in lhe passing of our distinguished colleague who served our profusion well. 11 is therefore, hereby re50llJtd. that this resolullOn be spread upon the minute$ of this e~eculive committee rllld topies thereo' be sent to Sallie M. Tuggle, Barry Tuggle's wife; Mr. ;md Mrs. Charles 'JUggle of Trussville, his parents: Mrs. Emf: Howell of Trussville, hIs grandmother; and Timothy nIggle. his brother. _ Ste!)hell D. lI ~ nin ger Prtsldenl, Binnlngham Har ASiodatil)n

Malcolm Lynch Wheeler hereas. Malcolm Lynch Wheeler was and had been;1n W active member of the Birmingham Bar Association and the Alabama Slate Bar for 57 yean at the lime of his deilth on Fehrullry 23, 1997, in Birmingham, Alabama: and, Whereas. Mlllcolm Wheeler was a lifelong resident of Birmingham. Alabama. being the son of the IlLte Circuit Court Judge I~obert 1. Wheeler and Milry !lew Wheeler; and, \Vhereas, Malcolm Wheeler gradu::tted from Birmingham Southern College in 1936 with a B.A. degree and subsequent. ly received hi~ law degree from Birmingham School of Law; and,

Whereas, t-ll1lcolm Wheeler honorably sClVed his country in the United States N~vy during World War II: ;lnd, Whereas, Malcolm Wheeler was a V()]unteer ;lnd board member of The Shepherd Center in !o:asl Lake, and was a charter member of two Methodist churches, Wilson Chilpel Uniled ""ethodi.l Church ilnd l.ake Highland United Methodist Church; and, Whereas, f.lakolm Wh e~ l~r served as ill1\ember of the Oo.wd of Director$ of Birmingham Fcderal Savings &: Loon

Waller Lamar Allen Mrm/gomer./I AtImiltt.'/l: 1961 Died: December 29. 1997

WilHam 8, Femambucq, Sr. Birmillgham

Admitted: 195J Died: December 23, 1997

Admllted: /956 Died: Jalluary /S. !998

Joan Van Almen

Jamn David Ford C(/rlilher'llille, MO Admillcd: 1978 Died: April 26. /.997

MaTJIanlle Kennedy Person.

John Pelen Ani ley Birmillgham Mmit(('il: 1938 Died: October 15, 1997

Lawrence F. Gerald, Jr.

JeIJe H, Slaughter. Jr,

LAke Oswego, OR MII/itled: 19$2 Died:Janllaryl4, 1998

{14

J\s5()Ciation and was the county administrator fo r Jeffcrson County fOr 12 years; :lIld, Whereas, duting his long II.I\d successful practice, Malcolm Wheeler established a reputation as a tireless ",orker, worthy oPpoflefllllfld legal scholar, He was a general practitioner in the fullest sense, but during his IMter years he devoted much of his practice to real estate and estate administration; and, Whereas, t.lalcolm Wheeler's life ilnd career StU a worthy example fo r his enlire profession and was one that will be long remembered by the Birminghilm Bar; and, Whereas, we now desire to expre5S our deepest regard for Makol m Wheeler and O\IT sense of gratitude for his distinguished career. It is therefore, hereby resolved, that this resolution be spread upon the minutes of this executive committee and copies thereof be Senllo his Widow, Virginia W, Wheeler, his two sons, Warren O. Wheeler and M. Wayne Wheeler. and his daughter, Elaine \\I, Beiersdoerfer, - Stephen 0 , HenlnJler I'reslden!. IJlmllngham Bar Anodation

James Paul

LoW(1')'

MOIl/gomery

Birmill9!Ulm

Admi//(,(/: 1937 Died: August 25, 1997

MOIl/gomer,1f

Stocktoll

Admill('d: 1940 Died: October 13, 1997

Admllled: 196,9

f)ied: September 21, /997

ErneAI lIamplon Brown

Merron Allon l-Iodge8

Rick A, Wllliamll

Bimlingham A(/milled: 1963 Died: Xm/ember 29. 1997

Birmingham Mmiltl/fl: 1996 Die(l: /I1(/!/31. 1997

MOll/gomur.,! Admt'lled: 1976

Died: December 7. 1997

John Young Christopher 7llsca1oosa MiliUM!: 1,91.9 Dilld: October 7. 1997

Drayton Nobltl James

Bloy. Cregory Wood

Birmingham AdmilllYl: 1969 Dicd: December 23, 1997

Talladega Mmilled: 1971 Dietl: Jamwr.1I I, 1998

MAR C H ' OlIn

Carl W. Albright, Jr. hereas. Carl W. Albright, Jr. was born in 'tuscaloosa, W Atab.una on April 27, 194<1. attended Stafford Elementary, Junior lI igh, and Tuscaloosa High Tusc~ loosa

School; and, Whereas, he entered the University of Alabama in 1963. where he was an active member of lhe Alpha Thu Omell" Fraternity and where he earned a degree in aeronautical engi. neering in \ 967 Md a Juris Doctor in 1970; and, Whereas. (ollowing his admission to the Alabama State Bar, he entered the private practice of law with the firm 01 Rosen. Wright. Harwood & Albright, during which time he W<IS aclivel), involved in the work of the Tusc.,IOOS/l County B." A~iat ion, serving as president of the association in 1981; and, Whereas, Carl left.lhe pri\'3;tt practice of law in 1981 to begin a distirlguished career in banking, Joining the First National Bank of 'fusc.,loosa as its lIeneral counscl. In 1983 hc w,u clccted executive vice-president and a member of the board of directors. Following the merller or First Nation:.1 Bank or Thscaloosa with AmSouth 6ank in 1988. he was elected an executive vicepresident of AmSouth i]ancorporlltion. chl\irml\n of the Tuscaloos.1 Boord of Directors, and an area executi~ (or West Alabama operations. In 1993 he was honored by bting elected the president o( the Alabama B.lnkers As5ociation; and, Wherells, Carl was It tireless civic leader, sel'Villll a~ a director of the Black Warrior Council of the Boy ScoutJ of America (or 17 yeal'$, as a director and president of DCI'I rOund:llion, as a dirttlor and chairman of Commerce or West Alabama and as a director and chairman of the Tuscaloosa County Industrial Dew:lopmt!nt Authority. where he actively pursued the recruitment of new industries to Thscaloosa County and was instl'Umental in attracting major industries such M JVC, TuSCllloosa Steel, and Mcrcedt$ Ben? to locate in TuSC.llooSol County; and,

E. Hampton Brown he $tafr and board of dirtctors of the Legal Aid Society of BirminRham, Inc, sadly note the passinll; of E. HamptM T Brown on November 29. 1997. Htlmpton was a proud graduate of the University of Alabama. receiving his O.S, degree in commerce and business administration In 1961 and his J,D. degree in 1963. Ilc was admitted to the Alabama State Bar in 1963. Hampton began his practice as an assistant district allorney in Huntsville, AlalÂť.mll. Hampton illso selVed lIS an assistant city attorney In Huntsville and with the !..egal Aid Society of Hadison County. From 1976 until his death, l'lampton W;l$

Whereas, Carl was a staunch supporter of Tu$Caloosa's institutions of higher Icarning, serving as a member of the president's cabinet at the University of Alaooma and ~rvin[l for 14 years on the Board of Trustees of Sti1lmlll'l College, where he also served as pruident or the Stillman Colle"e Poundation and chaired a campaign to raise funds to renovate Winsborough Hall on the campus of Stillman College; and, Whncas. Carl ....as a loyal member of the First Presbyterian Church of Tuscaloosa and served as chairman of the board of deacons and as an elder of the church. Carl's leadership as chairman of a multi-million dollar building campaign for the church was undol,Jbtedly the most enduring legacy he leA his beloved cI'll,Jrch and its members; and, Whereas, Carl Albright was a devoted husband and (ather, an avid hunter and golfer, and trusted (riend to many. opening his home and his hurt to newcomers lind making them feel welcomed and l>art or the community: and, Whereas. the members of the 1\lscaloosa County Bar Association were Mddened by his untimely death on December II, 1997. Whereas, therefore, be it resolved, that the 1\lscaloosa COUllty Bar Association in meeting a.u~mbled on this 23rd day of January 1998, mourns the death of Carl W. Albright, Jr. and desires to honor the memory of this distinguished colleague, businessman and community leader, whose life eXp;lnded the highest principals :md ideals of our legal profenton. Be it further resolved that this resolution be spread upon the minutes of the association and that copies be forwarded to his wife, Italner I..amar Albright. and to his two children, $.111y Lamar Albright and Carl \V, Albright, III. with the sincere condolences of the members of this a.uociation. - C. Stephen WIggIns I're8ldent. Tuscaloosa County liar AU(lclation

~m ployed with the I..egal Aid Society o( Birmingham. lIe JelVed a.s executive ditector of the l..egal Aid Society of Birmingham, Inc, (or m:lny yeats. lIampton was recognized by the Alabama Judicial Faculty Association. Ue was a member o( the Alabama Criminal Defense I..IIwyers Association, and wa.s a strong advocate for indigent defense, selVlng as chair of th~ Alabama State Bar IndigentlMense Committee from 1991 until 1993. l'lampton is SUlVived by his children. Bevtrly Brown, Barry Drown and Bliss Brown Wilson; one granddaughter, Olivia Crace Wilson; his mother, Gaynelle Brown: two 5i~teT5, Cay I'inson and Lavinia Mitchell: and several nieces and nephews. - lAgal Aid Society of mrminghllm , Inc. .. anCH ,guB, OB

BUILDING ALABAMA'S COURTHOUSES By Samuel A. HUlllore. Jr.

,- • Hawaiian Islands

ttorneys Sam lmd I'at HUinore recently enjoyed a vacation in our 50'" slate. While in Hawaii they took in the sighlll, sounds. and food of the islands. plus attended a football game. They viewed volC<lnos, saw surfers, and passed pinapple plimtations. These distractions coupled with the ChristlTh15 holidays put Sam behind ~h ed vl e. on his next "Alab;lmll Courthouse" article. In its place are pho· tographs laken in Hawaii. Included IITt the supreme court building with the statue of King Kamehameha, the Feder,,] Courthouse in I lonolulu which i ~ across the street frOIll the: ~U I)rcme court, and Sam and Pat having a good time at a HawaIIan luau.

The regular fCfllure "Building Alabama's Courthouses" will conlinue in the next

issue or The Afabmna lAwyer.

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The trusted source for Alabama statutory research

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Legls'eture online: www •• egls •• tur•.••e.e.el .... s. The Lcgl51<1iure and COOl! of illabama is now online through the Alabama Legislature lilforfllllt ion System (ALIS). The hlternet homepage listJ the (ollowing options: Code or Alabama Text Search Key Word Starch

lIy clicking on ~Text Search one can search the Code of Alabama or Alabama COrlSlilution by "key words. One OPtion is an abstract of the number of documents the search has M

found ::md the Code citlltions lhaL are applicable, f'rom there you can go to the full text of the OxIc citalion with Ih~ kcy word highlighted. A second featu re is the ability to search the bills filed in Ihe 1998 Regular Session of the Legislature by key word or bi ll number. By clickinll on "$eS$ion 1998RS" you can then enter either the subject matter you are searching for or if you know the bill number, tn tu the bill nunlber in lieu of the word search, This will reveal the subject matter of the bill, its sponson and a brief synopsis of the bill , rrom there you can review the text orthe bill on computer screen or obtain a printout.

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Alabama State Qovernment online: www••tate.al.ua/gov.rn.html From this web pagt you can obtain htmlHnks to the governor's omce. It. g(lllernor's ofri«. state agencies. Legislature, and judicial system. These links provide names. addresses, lind phone numbers for the governor and his staf(, legislators and agencies. The judicial system has the "ALALINC" network which will enable you to view and downlo.ld Alab..lnla appellate courl decisions a~ ....·elllli II '" Circuit Court of Appeals opin' Ions and United States Supreme Court opinions.

the University of Alabama Law School. Cumberland Law School. Alabama State Bar. Ilnd Statt of Alabama.1 We are again providing legal counsel to both branches of tht Legislature- in the Senate. Chris Pankey and in the liou5e. Plltn 1·Ii~in5. We :lIsa have thrH colicAe students working as c:lpital interns during the Regular Session: Governor's Office: Kristopher Robinson Ll. Governor's O((ice: foleUnda Stallworth Speaker's Office: Rebecca Tyree Anyone wishing more information concerning the Institute or any of its projects may contact Bob McCurley. director. AlabOima 1..1W Institute. P,O. Box 861425. Tuscaloosa. Alabama 35486-00 13; rax (205) 348· 8411: phone (205) 348-7411: Insti tute home page: www.law.ull.edulali. •

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Oth.r Int.rnet Add ....... Alabama State Oar: www.alabar.org AmerlcM Bar Association: www.abanet.orlll American Law I n~titule: www.ali.org/ National Conference of CommiS5ioners on Uniform State I)lw,: www.nccu'lorgl National Conference of State Legislatures: www.nC5l.org Alabama Law Institute: www.law.ua.edulali (The status of Institute prepared bills are available:at this site plus links to

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Judicial Award of Merit Nominations Due The Board of Bar Commissioners of the Alabama State Bar will receive nominations for the state bar's Judicial Award of Merit through May 15, 1998. Nominations should be prepared and mailed 10: Keith B. Norman, Secretary Board of Sar Commissioners

Alabama State Baf P.O. Box 671 Montgomery, Alabama 36101 The Judicial Award of Merit was established in 1987. The 1997 recipient was the Honorable HlIgh Maddox, associate justice, Alabama Supreme Courl. The award is not necessarily an annual award. It must be presented to a judge who is not ratired, whether state or federal court, trial or appellate, who is determined to have contributed significantly to the administration of justice in Alabama. The recipionl is presented with a crystal gavel bearing the state bar seal and the year of presentation. Nominatioos are considered by a three路member committee appointed by the president of the stale bar. which then makes a recommendation to the board of bar commissioners with respect 10 a nomirlee or whether the award should be presented in any given year. Nominations should include a detailed biographical profile of the nominee and a narrative outlining the significant contribution/s1 the nominee "as made to the administration of justice. Nominations may be supported with letters of endorsement.

AmeLi: l!es{)rt Seminan Call 800-627-6514 or 205-348-6230 to register for these programs. See listing below for hotel accommodations . 8e sure to make your hotel reservation while rooms last.

35th Annual Corporate Law Institute, (Can Mariatt's Grand Hote l at 800-544-9933 for a room reservation.) April 23-25 , 1998, Point Clear, Alabama , The Grand Hotel, 12 MCLE Credit Hours, $395 Preregistration Fee, $150 Registration Per Day .

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OPINIONS OF THE GENERAL COUNSEL BU J, Allihony Nc1.(l;n, !I'II/llral counsel

T Lawyers' Ethical Obligations When Representing Public Bodies

he settlement or 11 recent lawsuit nlcd a~1 ins t the

AI~bamn

State

Bar involved thc interpretation of Ihe Al abamll l~ule$ of Professional Conduct lU applied to lawyers representing public boards or agencies. Media reporu concerning this lawsuit and the selliement have been leu than accurate. This article" intended to clarify the subsequent confu!ion crcatcd by the media's dissemination of Ihi~ Information.

The Disciplinary CO'Tlmiuion of lht AlabOlrlla State Bar had previously reno dered II form:.1 opinion concerning II lawyer's obligations to it client whose meetings were subject to lhe Alabama Sunshine Law, and thai 5.1me lawyer's ethical obligations a5 to confidentiality pursuant to the Alabarml Rules of Professional Conduct. The opinion request sought reconciliation of thue issues of law and ethics in light of the opinion rendered by tile Alabantll Supreme Court in the case of Dunn v. Alabama Siale University BOllrd of Trustees, 628 So.2d 519 (Ala. 1993). The court adopted lhe stand.lrd approved by the Supreme Court of Tennessee in addre"ing that state's "Open Heetlngs Ac\.ft

That standard is that discussions between II public Dodyand its attorney concerning pending litigation nre not ~ubject to the Open H~e t ings Act. The Tennessee Supreme Court also opined that this was a "narrow exception," and applied onty to those Situations In which the public body is a named party in the lawsuit. Smith County Education Association v, Anderson, 676 S.w.2d 328,334·35 (Tenn. 1984). In f{Q·95·09, the DiSCiplinary Commission reaffirmed Lhe obligation of the lawyer representing II public body 10 adhere to the provis.On! of Rule 1.6. Alabama Rules of Professional COllduct, concerning confidentiality, The com· mission pointed out Its 111ck of jurisdic-

lion to interpret the Sunshine Law, and recognized thlll in some instances a lawyer's ethical duty to his or her chent could appear to connict with statutory or case law, Subsequent to lhe Issuance of this opinion by the Disciplinary Commission, the Alabama Press Association (~A I'A") requested reconsideration of Ihe opinion, cont~nding that the opinion encouraged lawyers who represented public bodies to blatantly disregard tht'. Sunshine L.1w and the holding In Dunn. The Olscipllruu}, Commission recon· sidered itJ opinion. and supplemented the opinion with lhe following language: "The

I)I ~cipll nary

Commission IlIwyers confronted with this dilemma to ensure that the client is aware of the require. ments of the statute as ....ell as the lawyer's ethical responsibilities under the Rules of Professional Conduct The client mUSI be adeQuately informed in order to make a decision on what action It will punue. I)lsclosure by the lawyer of his or her ethical obligation sunder the Rules to the client allows lhe client to better understand the ramirications r:I the lawyer's advice and counsel, and should inV()lve a di ~cussion of the requirements of the stilt ute ilS enunciated in Dunn." urge~

Thereafter, the Alabama State Bar and the APA filed II joint petition with the Supreme Court of Alabama, seeking guidance from lhe court liS to clarification of the legal .. nd elhlclIl iuues prestnted. The court declined the petition ilnd request. The APA then filed suit IIgalnst the bar in the J'.lontliomery County Circuit Court, Settlemem negotiations resulted in the APA dismissing the lawsuit after receiving a letter of explanation from tht Office of Ceneral MAnCH IggD I 0.

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Notice of Election Notice is given herewith pursuanllo Ihe Alflbflmfl Slale BIr Rules Governing Eleclion of Presldent· Elllctllnd Commissioner. President·Elect The Alebama State Bar will elect a presldent.elect in 1998 to assume the presidency of the bar in July 1999. Any candidate must bo a member In good standing en March 1, 1998. Petitions nominating a caroidete must beer the signatura of 25 membors in good standing of the Alabama State Bar and be recelVlJd by the secrl1tery of the state tJar on or bofore March I, 1998. Any candIdate for this oHice must also sub· mit with the I'Omlnating pelltion a black end wtllle photograph and bioVaphical deta to bo published In the May 1998 Alabama Lawyer. Ballots will be mailed between May 15 and June 1and must be recai ... ed at state 001 heedquoftars by 5 p,m, on July 7. 1998,

Commiuioners Bar commis~ioners will be elected by those lawyers with their princiPII' offices In the follOWIng clrcuits:l ": 3"; 5· ; 6ft, place no 1,7.... lD", places no 3 and 6; 13", places no 3 and 4; 14'"; 1 5~, ploces no 1,3 and 4; 25'"; 26"; 28'"; 32"'; aod 37". AOditional commissioners will be elOCled in these CIrcuits for each JOO members of the stete tJar with principal offices herein The new commissioner positions will bo ootoonhed by a census on March 1, 1998 and 118C8ncies certified by the sOC/etary on March 15, 1998, The terms of any incumbent commissioners are retained All subseqLl1nt terms will be for thrl1e yeers. Nomlllations may be mllde by petition beering the signatures 01 five members in good standing With principal offices in the circui t in which the election will be held or by the candldete's written declaration 01 candidacy Either must be received by the seCietary no later than 5 pm on tho 1M! Fildey in Aplil (April 24. 19981 Ballols will be prepared end mailed to members between May 15 rod June 1, 1998 Ballots must be voted end returned by 5 p.m. on the second Tuesday in June (June 9. 1998) to 81(l1e bolr Il&atlquarters

Counsel as to the application of the Rules of Profusional Conduct to lawyers representing public bodiu. In reporting th 5 settlement, one APA member newspaper editorialized: "Usulllly, it seems. lawycr$ s\I(llhe media. This time, the media sued the lawyeu. lind won. "L.1st year the Alab<lm<l Bar Association advised governmental agencies they cou d meet behind closed doou to discuss ally kind of I(gal malter. The practical effect of that rule was an open invitation to exclude the public (rom the public's business whenellfr agencies wanted.

••••••• "Th:mks to an agreement worked out between the bar <lnd nine ne ....'! organiZlltiolls which sued, that will no 10nJler be the case. In (act, the bar will send a leiter to members making It clear that lawyers (or public bodies should advise their clienlJ of the. need to obey the open meetings law. "Also. as part o( the agreement, public agencies mny meet privlliely to discuss leglll advice only when suits already have been filed, not to discuss potential cases." rhl! IJirmillg/:u111 NeIL'S, November 19, 1997. Based on a preSl release from the APA, II stale association newsletter reported the settlement as follows: "This consent decree holds that the attorney.client privilege applies only whtre 01 lawsuit hilS been filed

"!9'H E HIGHEST QUALITY IN

against the municipality and the allorney nceds to provide legal advice to the council. Any discussions relating to the action to take on the advice of the attorney mu~t take place in the public meeling." Alabama MllnlclP(l1 News, January 1998. These two articlu are rtplete with incorrtct inform.,tion. First, the bar ha$ nMr encol1raged lawyers to violate the )0111'. Second, the opinions althe [)i5ciplinary CommiMion and tht Office al General Counsel deal only with ethical issues, as Mithtr have tht: authority to render opinions or advice on matters al law. Third, there is no real "agreemenl. ~ The M'A dismissed the lawsuit b..1sed lIl>on a letter from tht Office o( Ceneral Counsel to counsel for the AI'A explaining how l<I\v)'ers seekin.!! an ethics opinion in this Ilrea are Ildvised by the bar. 111i~ Itller ....'ali in rc~ponse to II hypothetical inquiry of said counsel in an effort to SEttle the lawsuit. Last, Ihe letter and the opinion In no way interpret the Sunshine l.aw, Dunn, and the legal issue of allomcy-cllent privi· lege, as tI~ all invol\'e issues o( la ....., and not of ethiCS. The opinion of the Disciplinary Commission clelrly, emphlltically lind repeatedly states that the only mallH$ which can be addrts~ed in such OIn opinion lire mallers which deal with the Alabama Rults of Professional Conduct. To borrow (rom the "settlement" letter directed to counsel for the APA: those few instantes where attorneys have lOu"ht ethical guidance in this regard, the attorneys ;;l\Ie bten informed by the Offite of General Counsel thllt the Rules of I'roftssionill Conduct, as well as the opinions oflhis offlce (Office ofCeneral Cou/Ucl) lind the Disciplinary Commi~sion, are restricted only to the ethical parameters of the attorney's conduct, and that they in no way address quutions or juues of law relcvant to the attorney's rtpresentation of his dien!.

"hI

"To the contrary, 1111 issues al law are left solely for determination by the attorney, b,'scd upOIl the attorney's profeS!!ion~1 opinion and ..... h/l\ ls In the best interc$t of the cUtll1 cOIl$istenl with stlltutOry and case law." In order to help lawye~ Ulroughout the state who m..W hallf 'tad or heard inaccurate reporu similar to thC'lSe $(!t Ollt previ. ously in Ihi5 article, the: Office al General Counsel and the Oisciplinary Commission seek to clarify thest matteTs, and offer ~onti nucd advice on these and other Issues of ethics. • (HO·95-09)

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ighlyears l..rler he was

COIl-

victed of murder and sentenced to life imprisonment. I'hilip Chance escnped from the custody of the /\Iabama Department of Corrections and ned to f'.1ichigall, When the governor of Atabama sought Chance's extradition in 1982. he was politely informed by the Jtov路 Hllor of Mi ~ higan that ChiUlce hnd been grnnted "nsylum" from Alabama because of his "lIery fine character" and "the support of his friend s." What Mkhlg,\I1 re<lUy mc;mt was that it believed Chance hlid been "railroaded," :lI\d it intended to protect him from a Southern justice reminiscent of the dllyS of the Scottsboro boys described in Powell I), Alabama, 287 U.S. 45 (1932). It would be another 14 years and require a

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writ of mandamus from the Sixth Circuit U.S. Court of Appeals to the governor of Michigan, before Chance would be returned to Alabama to serve the remainder of his sentence. SI(lle of Alabclllw v. 拢'nglllr, 85 F.3d 1205 (6th Cir. 1996). Atknowlediling that. as a m,Itler of conslilulior'lld law, Michiglm Could riol refuse extradition. Judge Nath,lIliel n. Jones of the Sixth Circuit nonetheles~ felt compelled to "write sepllr~tely to C)lpress Illy distaste at being unable to affect the return of a citizen ofthi5 County, or any human being. to a juri~diction and prison system with a wretched history las Alabama's,I" lei. 85 E3d at 1210. Decrying the return of the "chain gan8" to Alabama prisons-a practice not in existence at the time

_-,;;",;~:;;",;;;;:,:~:;,",=,~=,:-------------------------------

Ch:ltlce escaped Judge Jones indided Alabama's entIre judicial system. "Cert:r.inly.M he wrote, Mit is no seeret tNt justice in the state of Alabama. particularly for the African·American, has been invisible or peculiar for 0111100 much of that stale's histOl),. The instant case hIlS reminded me of the Scottsboro saga .... M/d. Harely are judges 50 inclined as Judge Jones to concur sepa· rately in order to use thM privilege as a platform (rom which to gratuitously censure the vet')' party to whom they grant relief. But Judge Jones' injudicious dicta may not be the rno~t troublesome aspect of (\1ichigan's re(usal to honor iU constitu· tional commitmerlts. What is most disturbing is the presump· tion (rom our neil1hoon; to the north, state and (ederal. that Alabama has not learned a thing or two since the days of the "Scottsboro saga.· The Powell case recalled by Judge Jones involved the questJoo whether there even existed a right under the Constitution to court appoinled courlsel irl state court: at the lime. il did not. The question in /:"lIgl«r involVfd it slale's obligatiOrls under the extradition clause of Article IV. 1-I;\\Iing paired the Iwo, it might interest Judge Jones to learn that lhe evolutioll of the law applicllble to both in Alabama reveal5 a judicial ,ystem more forward thinking than he and lhe authorities in Michigan have been led to believe. The origin of t\eTy state's extradition authority. responsibili. ty and duty to dellVfr fugitives from justice to a demanding !tate, i! (ound in the United Slates Constitut ion. ~A person charged in any SL"lte With 11ell50n. Felony. or other Crime. who shall flee fron' Justice, and be found in another State, shall on Demarld of the executive aulhority of the State from which he fled, be deliVfred up, to be removed to the State having JuriMliction oi the Crime." U.S, Const. art. IV, § 2, cl. 2. Irl 1931 , the Alabama Legislature .. pallerned with slight varia· tions afler the 1926 text o( the Uniform Criminlll Extradition Act. passed Ala. Acts 1931. No. 482, p. 559. MOZingo 11. Slall!, 562 So.2d 300, 302 (Ala,CrApp. 1990): KNmwinkel v. Slale, 45 AlaApp. 0174. 232 So.2d 346 (l970). There ha~ been no sub· 5tanti~ changes in the statute in over 60 years. "Subject to the Qualifications of this division, the controlling provisions of lhe Constitution of the United States and acts of congress in pursuarlce thereof. It 1$ the duty of the governor of this state to have arrested and delivtrcd up to the executive authority of any other stille of the United States IIny person charged in that state with trellSon, (elony or other crime who has fled from justice and is fOlmd in this state." Ala. Cmlt! § 15·9·30 (1995). "This section Is, in large part. a restatement of Article lV, § 2, d. 2, o( the United States Constitution." Mozingo. 562 So.2d

lit 302. Considering their constitutional oriltin. Alabllmll CQUrl5 ha~ held that "utradilion issues are largely controlled by fed· nal law,MMo~il1gv , 562 So.2d 8t 303. At first blush. the role of the courts appears narrowly defined. "This examination by a ci rcuit court is not n roving commission, Hather. Its fun ction Is to mllke sure of a proper formal charge and that the accused is a fUJ{itive." Krel1wil1kel, 45 Ala.App. at 476. 232 So.2d at 3018: SL'i! also Mozingo. 562 So,2d at 303: Morrison v. Stall! , 258 Ala. 41 0. 63 So.2d 346 (1 953): RoybunI v. Slale. 366 5o.2d 698. 702 (Ala,Cr.App. 1918), arrd. 366 So.2d 708 (1979). CourU (llced ....ith requests for extradition may not entertain, for example. IIm rmali~ defenses to the crimes charged. or allegations thlll the person sought to be ext radited will not be tried fairly in the demand· ing stille. Itla. CQde § 15·9..47 (1995): Couller v. Slole. 611 5o.2d 11 29. 1132 (AI ...Cr.App.1992): Califon/ia v. Sliperior COllrl ofColifon/iu . 482 U.S. 400. 407 (19871: MichigalJ II. Oorall, 439 U.S. 282. 288·90 (1979): SUXXIIU/!lI), Ifoodlllf. 344 U.S. 86. 90 (1952): Marbles 1/. Cra'l,'J/. 215 U.S. 63, 69 (1909). But that is not to say the role of the courts is comidered to be without consequence. "Because a person 10 be extradited is not already in prison, supporting documenu art required by the requesting state for the person. and the asylum state is permitted to investigate the demand in order to determine whether the individ,Jal should be surrendered. See II 15-9·33 through 15·9·33, Code of A/abama 1975. Certain tighu of arrestees sought to be e~t radited are outlined in 1 15·9·38. Code of Alabama 1975." Couller, 611 So.2d at 11 31. Included amm'g the rights guaranteed by statute are the righllo notice of the demand, notice of the crime chllrged. arld notice o( the right to demand counsel. "No person arrest· ed upon a warrant of arrest issued under this division shall be deliVfred over to the agent whom the executive lluthority ~e m .. nding him shall have appointed to receive him unless he I\3s been informed of the demand made (or his surrender. the crime with which he is charged and that he has the right to demand leg.. l counseL" Ala. Code § 15-9·38(a) (1995). "That Seclion merely requi res that before an arrestee Is de li~ red over to agents of the state requc:sting his extradition, the arrestee must be 'illfon ned of Ihe demand made (or his sur· render. the crime with which he i$ charged. nnd that he has the right to demand legal counsel.' Alabama Code Section 15· 9.38(a) (1975) (emphasis addedl," lIesllff/'. Stale, 444 So,2d I, 2 (Ala.Cr.App. \983). The right to demand legill counsel is ....." c .. ...,,"

not a privilege, gratuitously conferred, but serves an importllnt purpo~e, Indeed, federal courts that have had occasion to construe Alabama's el1\raditior'l statutes have held that a perSO il "sought to be ext radited has a fede ral constitutional right to test the validity of his extradition by filing a writ of h"bca~ corpus. Crumlev IJ, Snead, 620 F.2d 481 (5th Cir. 1980)." PaYllev, Bums, 707 ~~2d 1302, 1303 (11th Cir. 1983). Alabama law ~rov ides the mechanism whereby arl accu~ed may test the legality of his extradition. "If the

referred to by the court of appeals in S!llIim1/l many times in response to evolving standards of when and in what circumstances an accused is entitled to court appointed counsel. And the righl to have the assistance of counsel under the state Hnd federal constitutions. as islrue of the right 10 demand counsel ufi dcr the extradition SI'II\lt e. has 110t iLlways been synonymous with the right to be appoinfed counsel if one is indigent :u,d accused of a crimI!. It was not until the year after the Alab:!lrril. l.ei:!i~ I'lture !.:odified tht right to demand counsel in extradition proprisoner. his friends or counsel shall _,~a;;~""'~~i~":'~~~' state th'lt he or they desire to test ceeding~ Ihat the United States lhe leg<llity of the arrest. the Supreme Court, in a capita l cast prisorler shall be taken forth from Alabama. held for the first with before a judge of ,Ldi$time that a person accused lrict or ci rcuit court in this "requi res the guiding hand of state, who shrr.ll fix rr. reasoncOllnsel al every step in the able time to be allowed him proceedings ilgainst him:' within which to apply for a Powell v. AII/bama, 287 U.S. 45. writ of habeas corpus." Na. 69 (1932). Powell was that Cor/I! § t5-9-38(b) (1995). "ScoUsboro ~'g., ,, reicrred to by ''Thi s stillute is not directed to Judge Jones. whether a prisoner will elecl to file In Powell. the Suprerrre Court did nOI or not me ,L petitiol1 but rather gUlIr· apply the Sil1th Amendment to Ule states as anfees him time in which to ,Lpply for the bilsis of its decision. bul upon fundamental the writ and holds his ext radition in timbo fairness and due process concerns expressed by Ihe during such tirrre." PdYlll!, 707 ~:2d ,Lt 1303 Fourteenth Amendment. "Even the intelligenl and (emphasis added). Another right expre~sly conferred by educated layman has sma ll and sometimes no ~kiJI in the statute is the right to bail. "Unless the offen se with which the science of the law. Jf charged with crime, he is incilp..lbJe, genprisoner is charged is shown to be an offense puni shabl~ by erally. of de l ermin l n~ for himself whether the indictment is death or life imprisonment under the laws of the state In good or b"d. H ~ is unfamili'lr with Ihe rules of evidenCe." which it was committed. 'fte district or circuif judge /III/sl Powell, 287 U.S. ,Lt 69. While the Cou rt held that the mlmif the person arresfed to boil by bond or underlrr.king. F'ourteenth Amendment dearly requi red the appointment of wilh suffi cient sureties and in such sum as he deems proper. counsel to indigents accused of s(lriol.ls !.:rimH ~l1d capital for hi ~ armear~n ce before him at a time specified in such bond offel1ses. 287 U.S. at 73. it did not elaborate beyond the facts or undertaking, and for his surrender, to be arrested upon the of the CMe, And Ihe Sil1th Amendment was not to be :!pplied warrant of the governor of this stille." A/II. COf.le § 15·9-43 to the states fo r a number of years. (1995) (emphash added). The statutes governing extradition In Johnson /1. Zerbst, :104 U.S. 458 (1938). Justice Hugo thus anLidp,Lte (hOlt legal counsel, whether ilppointed or Black writing for Ihe Supreme Courl llppHed the Sixth retained, Illlty play rr. 5igrlificant role h' e ~ e rdsi ng the rights of Amendment. fo r the first lime. to crimina! prosecut ions a person charged with a crime and who hM becrllITre$led;md bro\lght in fede ral cou r). "Since the Sixth Amendment constidetained within the State of AII!bamn at the request of a fo rtutionally entit le~ one !.:harged with crime to the assistnnce of eign state. Those rights include the right to notice, the right Counsel, compliance with this constitutionalmilndate IS an to challenge the validity of the charging and requesting docues~entlal p re requl~ite 10 {/ f.'l.'dl.'mf COurf :~ 'IUthority to deprive ments, and the right to bilil pending extradition. an accused of life or liberty." 30<1 U.S. at <167 (capitali~ation in Since 1931, there has been but one reported decision on the original; emphasiS added). Pour years later. Justi!.:u point on the question whether an indigent accused of a crime Black. Douglas and Jl.turphy diuenlinll. the Supreme Court in a fo reign jurisdiction is entitled to court appointed in 811 declined the invitation to apply the Sil1th Amend:rrent to the el1tradition proceeding held in Ihis state. In 1965, the court of states, and further declined to lay down a hard and fast rule u appeals held thOlt a two-year·old statute pertilininlt to the proto when appointed counsel is con slitulion~lly required Ullder vision of court appointed !.:O\Jflsel fo r indigents accused of serilhe Fourteenth. "The petitioner. in this instance. asks us. in ous crimes. Act. No. 526. AcLs of Alabama. 1963. "doe$ not effect. to apply a rule in lhe enforcemenl of the due process ,!pply to extradition," Sullilllll1 v. Sfall!, 4:1 AliI.App. 133. 181 clause. He says the rule to be deduced from our (ormer deciSo.2d 518, 520 (1965). But the decision i~ limited Orl it$ fa!.:ls. sions is th"!. in every case, whatever the ci rcumstances. one and by the statute the court WilS asked to construe. For the charged with crime. who i~ uliOlble. to obtain cQunsel. must be right to appointed counse l has evolved considerably since furnished counsel by the state. ExpreS$ions in the opinions of 1965; the Alabama Legislature has amended the statute this court lend color 10 the ~rgument. but, a$ petitioner

MAR CH , ,,.,,

•

admits, none of our dedsions squarely adjudir;.at« the questions now presented. (kits lJ. Brm/v. 316 U.S. 455, 462·63 (1942) ((ootnote omitted). Thirty years after POWit/l 'I, A/alx/ma, in nnoliler capitlll case from Alabama, the United SIMes Supreme Court held as a matter of r~derallaw that. because arraignment is the time at which an accuwj enlers 11 guilty or no! guilty plea. and must enter or waive special defenses, such M an inS<lnity plea. and must raise or w1Iive chaUenges 10 the indictment or the makeup of the grand jury. the arraignment is 11 ~critical stallc" In Alabama criminal proceedin~. and the due proccu clause of the Fourteenth Amendment requires thai accused are entil1ed to counsel at that Hme. IfmniIrQ'IIl, A/abama, 368 U.S. 52 (1961). "Whatever milY be the {unction and importance or arraignment in other jurisdictions, we have said enough to show that in Alabama it is a critital stage in the prIXeeding. What happens there may arrett the whole trial. A...<ln<lble defenses may be as irretrievably lost. ir not then lind there asserted, as they are when an lIccused represented by counsel waives a right (or strategic purpoks." I/omillon. 368 U.S. <It 54 (footnole omitted). The Supreme Court did not address the applicllbility Q( the Si~ lh Amendment to the rights of state triminlll defendlll'l t ~. nor did it speclfltally ,.ddress the question of whether indigenls are due to be lIppoint(.'(1 tounsel al state expense. and would not do 5(1 for anoth· er two years. On MMCh 18. 1963. the Supreme Court held In Cil/eoll v. Wahlwright. 372 U.S. 335 (1963). that the Sixth Amendment entities Indigent criminal ddend.:ml510 appointed counsel at trial in all fclonie!. The Supreme Court's dedsion in Ci(/I.'OIJ was a lurning point, not only in Ihe evolution of fede ral law lind Silth Amendment jurisprudence. bul in the evolution of Alabama law on the queslion whether <lod under what cirC\lmslllntt5 an accused is entitled to appointed toon· scI at the expense o( the statt. Six months after the Supreme Court's decision in Cideoll. on September 16. 1963. the Alabama Ltgislature set forth specinc guidclincs for the courts to follow pertaini~ to the provision of <lppointed counsel fOr indigent$ in non-death penalty C<lM:S. "wherein a defendant is charged with 1I $erious Orr,"ISI! in the circuit courl , or court of like jurisdittion." Ala. Acts 1963. No. 526. p. 11 36. § 1 (emphasis added). 'l\vo years later, the Alabama S\lpreme Court held that an accused has the right to tounsel beginning with arraignment and at every stage of the prIXeeding, includIng Ruilty plea, unless a competent. intelligellt. and volunt.. ry wlliver is made. Slickltll1d IJ. SI(lt{1, 280 AlII. 31. 189 So.2<1 771 (19651. f::arl ier that year. howe ...!:r. the court of appeals held th .. t it did "not Ihi ... k Ihlll petitiontr had any constitutional right to counsel ta'<en from him in this case [because] Act. No. 526, Acl5 of Alabama, 1963, does not apply to extradition.H M

SlIlhiUJII v. Siale. 43 Ala.App. 133. 181 So.2d 518.520 (19651.

Interestingly, Sulli..... n himself, although ~not represented by coun$el at the proceedings in the ci rcuit court. [w/isl represented by courl-apJ1oillfetl cou n5el on ... allpeal." Id.. 43 AIIl.App. 133, lSI So.2d al 518 (emphasis added). In the: yl!:3r$ following SU/lilJ(JII. the United States Suprtme Court cont inued to redefine the constitutional rights o( indigents accused of crime. St>c e.g., lJlli/(!(1 Stutes IJ. Wade. 3S8 U.S. 218 (1967) (indigent accused is entitled to appointed counsel lit a pre-trial post.indictment lineup): and Nem"ho v. Rhog, 389 U.S. 128 (I967)(lndigent has right to appointed counsel at sentencing). In another case (rom Alabama. the court held in Colemall Ii. Alabam(l, 399 U.S. I (1 970). that because a preliminary he,lrinJ{ is a "critit:!1 slll.ge" under Alab.. ma law, an indigentllccused is entitled to court appointed counsel. Coleman was decided June 22. 1970. nle (ollowing ye .. r. e...idently anticijXIting the tourts' need for ne~ibility. the Alabamlll.eilislature amended Ihe phrase in Act No. 526 which pTe:... iou5Iy read "whereIn a defendll.n\ is charged with a serious offense, ~ to read: "when a defendant is entitled to counsel as provided by law.~ Ala. ACLS 1971 . No. 2420. p. 3851, § I . In 1973. the Alabilma Constitution was amended to (ormally recognize the .. uthority of the Alabama Supreme COllrt to m.. ke and promulgate rules. Ala. Const. amend. 32S, f 6. t t. But nearly 20 years would pass be(ore the Alabam,. Supreme Court's extrcise of that authority would lend any assistance to today', inquiry. And still the phrase "as pro... ided by law" remained unde-

......;~fi"'" OIh.".I,," ..

interpreted by the United States Supreme Court. Nine years after Gide(m tnnrked another lurning point when In Argersillg4!r v. lIamlin, 407 U.S. 25 (1972) the Lniled Slates Supre:mt Court held th ..t "no person may be imprisoned for any offense, whether dll$sified 11$ pelty. misdemeanor, or felony. unles5 he was represented by counsel at his trial." Id"

Richard Wilson & Associates Registered Profess ional COllrt Reporters 804 S. rerry Street Montgomery, Ali\bama 36 104

264-6433 ..... R~M' . . .

407 U.S. lit 37. r.:ight years af'ter Argersingcr, in Scot! v. Iffillois. 440 U.S. 367 (1979). the SUllreme Court declined to require lhe il[J[Jointment of (:01.lnsel in all (:,Ise~ where impri$. onmen! mlly result, adollting instead "actual imprisonment as the line defining the constitutional right to llppointment of (:01.ln$el." 0140 U.S. a1373. Stili. the phrase "as provided by law" beg,m to focus less on the nature or severity of the offen ~e charged. :lfld more on the likelihood of an accused's involuntrtry depriv:ltion or liberty. ~'ive years after Scott. the Alabama Legislature again amended the statute to incor[l()rale this new approach, and to provide ror courl ap[l()inted counsel in all criminal c~ ses "which may resu lt in the jailing of the defendant." Ala. Acts 1984. 1st E".. Se55. No. 84-793, [J. 198, ~ i:llIll. Code § 15-12-20 (19951. The very n;lture of the law of extradition conttmplates th'll a [Jenon whose ~x tradition i~ 5(lught willl10t be routinely pJilced a\liherty. "The o((icer or person executing a governor's warrant of arrest under this division or the agent of tile dernarldil'lg stllte to whom the prisoner may have been deliv· ered may confine Iho prr'soner in Iho jail of lillY co/mly or cily through which he may pass when necessary. The keeper of such jllil must receive ilnd sarely keep the prisoner until the person having charge of him is ready to proceed on his route, such person being chargeable with the expense of the keeping." Ala. Code 1975 § 15·9·39 (emphasis added). In the case of an arrest [Jrior to a formal requisition from a (oreign stllte, the I,IW requires the individual be committed to jail. although it dOe~ nol $tatc for how long. "If, from the examination bdore the district or circuit court judge. it appcilrs that the person held is the [Jerson chMged with having committed the crime alleged. that he probably committed the crime and, except in cases arising under section 15·9·34. thill he has ned from hLstice. fhejutiye must commil him to jail by a warrant reciting the accusation for $uch a liml! spl..'cifled in fhe worrall' d.~ will etJahie Ihe ll,.,.e.~1 of Ille accused to be made under a warrant of the governor on a requisition of the execu·

Robe rt M . Weinbe rg

Robel! M Welnoorg Is a De<;emoor 1964

lI'a d ull ld 01 !rid Unlvc)r&ity 01 AI/'I~m8 SchOol 01 Law and was admlnlld to practice In May 1985 Originally In pri~all1 prac lto.ln TU8Ca I00$.8. sinc. 1968 no 1'1&$ boon wiln lhe AUorney G(If1efal'8 OffICIil. eMI dl.... lslon The vIIIws lI~pre~Blld In this arliclll bolong 10 the aUlhOr and do mit n&teas811ly relleel Ihl,l v~w1.I 01 me Stalll 01 Al abama Of 1116

Ollioe 01 the Attorney Ganeral

live authority of the state having jurisdiction of the offense, Ilctused gives bail as provided in 8ectioI115·9-43, or until he shall be legally discharged." Ala. Code § 15·9·42(1995) (emphasis added). Alabama courts have construed the language "for such a time specified" to allow ror the passage of "a reasonable time" between arrest and formal demand. see SllIlev. Sparks, 44 AliI.AIlP. 531. 215 So.2d 469 (1968). butth~ statutes also provide ror the extension of the initial period of detention pending formal extradition. Ala. COt/(! § 15-9-44 (1995). And while Ihe sta!\rtes do not ot herwi$~ identif)' how long an individual ma), be detained in jail pending formal exlr..dition, as a practical mlltter, it may be upward of90 days or more. Cf. AfIl/i(Jma Rules of Crimh,al Procedllre, Rule 7.4(c) and (d), which requires that lhe ci rcuit and munici[Jal courts "$hall review the conditions of relea$e (or every derendant who has been in jail {or more than ninety (90) days." Interestingly. no federal courl has ever eX[Jressly held there exists a federal constitutional right to court appointed counsel in extradition proceedings. Those federal courts that have considered the argument, reject it. "It is well settled thM e~tri\dition proceedings are not con5idercd crimil'lal proceed. inlls Ihat ca rry the sixth amendment guarantee of assistance of counsel." Chewning v. RogerSOIl. 29 ~::ld 418. 421 (8th Cit. 1994). "Th u~ . hecause the sixth amendment by its terms ,lllplies only to 'criminal prosecutions,' extradition proceedir\gs do nOl carry the sixth amendment right to the assistance 01' counsel." iApcz-Smith v. flood, 951 ~:S\lpP. !.t~~ 908, 91i (0. Az. 1996). If such a right is to be found it will be in sUite court. l3ut until recently, most state courts routinel), held there was no right tn court apllOil'lted coun· sci in extradition proceedings. For ~xll mple. 11'1 VII v. Stale of Muryland, 293 Md. 271 . 443 A.2d 582 (Md. 1982). the Maryland Court of Allpeals concluded the "the vast majority or cases around the country" found no such right because "interstllte extradition is inlended to be iI summary and mandatory executive pr()l;eeding derived {rom the language of U.S. Const. art. IV. § 2, d. 2. It was never contemplated that the as)'lum slale WIIS 10 conduct the kind or preliminary inq(liry traditionally intclVcning between lhe initial arrest and trial." Id. 293 Md. at 285. 443 A.2d at 589. And in Afop/e v. Mort()ll. 479 N.Y.S.2d 275. 278. 104 A.0.2d 569, 571 (N .Y. App. l)iv.1984) the court held that "ext radition IlrOCe5S is not a critical ~tage ofa crimil'lal proceeding lind the cQn~titutlonal right to counsel does not attach thereat." Accord, P{!(Jple v. B(J1Jedicf. 508 N.Y.S.2d 656. 124 A.D.2d 890 (N.Y. App. Oiv. 1986). In 1991.Ihe First District Court of Appeal o{ ~' o rida. con· struing a statute practically identical to Alabama's that provides II person !lrrested lLpon an ext r(ldi\iQn warrant "ha$the right to demand and procure legal counsel. ~ arrilled at a diffcTunleS$lh~

ent conclusion, '( 1(1 is our view that the language of section 941,10(1) which originated in the Uniform Extradition Act. gives a prisoner the right to legal counsel and that the Fourteenth Amcndment prohibits lhe denial of this right to indi"ent;, when it hM been made available to those able to afford counu l. H&mtze! lI, SllIle of Florida, 585 So.2d I I 18. 1120 (Fla.DisI.Ct.App. 1991) (ciUllions omitted). Today, the Alabama Supreme Court wou ld likely agree with the Florida District Court of Appeal's 1991 decision. for that ~me year Ihe Alabama Hulu of Criminal Procedure became effective. HAdefen· dant 5h<lll be enlilled to be repruented by counsel in <lny criminal proceedin"s held purwanllo these rules and, if Indi· gent. shall be entitled to have an IIItorney appointed to represent the defendant in 1111 criminal proceedings in which representation by counsel is constitutionally required." Alalxl/nll Rules oferimillol Procrdllru, Hule 6.1(II). And while it can be argued that the phrase Hconstitutlonally required" lim· its the right to appointed counsel to those types ofp roceeding.~ the United St,ItC5 Svpreme Court has specific-lily held r~qui re them lIS a mlltler of lllw. such IIlimiling construction ignores the Svpreme Court's shift in focus In SeoU l!. IIIlnois, and ArgerSillger v. Nmnlir'l. from the nature or severity of the offense charged 10 the likelihood of lin involuntary deprivation of liberty ilS the detetl1lining factor by which to judge whether appointed covnsel is constitutionally required. Cf III re Ifillmml , 424 Mass. 900, 906-08, 678 N.E.2d 1314. 131 8- 19 (1997) (acknowledging the sui generis civil nature of extradition proceedh\g$ but finding nonetheleu there does exist a right to court appointed counsel because "where a potential deprivation of liberty is involved. it is appropriate that we consider due process rights as we would were this II criminill proceed ing~l ,

Finally. committee COmments to the rules may not be controlling, cr. INI:.'D Corp. II. 5:l/S(0",S b'lIgirlcerillg Assocs. Corp. , 602 So.2d 344, 348 (AlII, 1992).

but in this instana, do prove partku-

I~rly instructive, "For lhe purpose of Rule 6, the term 'criminlll proceeding' includes any stage of the criminal process, from ilccusation through appeal, and In collateral proceedings .. rising from the initi3tion of II. criminal action Ilgainst the defendant. such as post-conviction proceedings and Ilppellis therefrom. ex/radition PfOCelillitlgS, and other like proceeding~ which are adver· ~ry In nature. regardless of Ihe desig. nation orlhe court in which they occur or the clllssification of Ihe proceedings 115 civil or criminal and without rcg.nd 10 whether a 'criminal proceeding' has or has not been commenced under Rvle 2.1.~ Committ ee Comments. Alabama Rilles orCrimillol Procedure. Rule 6. 1 (emphasis lidded). In view of the Commi ttee Comments ilnd the Alabama Legislatvre's prOVision for counu l to be appointed in all cases "which may result in the jailing of the defendllnt." it would appear thllt where·

as the fcdcrlll courts mllY stili be somewhat hchind the times, in Alabama today, the righu of an indigent who faces extradition to a foreign slate include the right to C(lvrt appointed counsel. Judge Jones' uninformed dicta thal Alabama's judicial sy$tem applied to Philip Chance is pruull'l]llively noth· Ing more than a modem day ~Scot15boro saga,fl serves only 10 perpetuate stereotypes of Southern justice that no longer exist. This much. however. is clear: if Michillan were to seek the extradition of a convicted murderer who escaped from one of its priwns, not only would thai Individual. if indigenl, likely be entitled to covrt appointed counsel as II mailer of $tatElaw. but it would not lake 14 years and a federal writ of mandamus for Alabama to honor its consliMional commitments. •

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TOTA.$ _ _ __ f'lea 5(' rl'mit ('HEn OR MONEY ORDER AIA:)E PArAIJLE ro II IE AI.A/JAMA STATe /JAR for Ihe .lmo unlll ~tl'(l on the TOTAL line and forward it With this order form to: SU ~ rI II . Andrl'~, Dirl'<.lor of Communications, Alabama State 8.lr, P.O. Box 61 1, Montgomery, Al ]6 10 1, (]]4) 269· 1515

. oa .. AnC H .". .

'", >4

a ama 'CS Law or Lawyers by James L. Sumner, Jr. and Hugh It Evans, III

whether or not a violMion has in fact

Introduction

occurred, but it is merely their obliga. tion to report suspected violllions of the

n 1995, sweeping revisions were made to the Alabama Ethics Law,

law, While tht legal obligation to report

Code of Ethics for l"ubfic Offlcials, t,'mploYI!t's.I!IC" §36-25· /through 3625-30, Coda of Alabama, 1975, Those

changes have had II tremendous impllct on the way the public's business is con· ducled in the Slale of Alabama. While the Alabama ElhiCJ ~w and Ethics CommissiOll only have jurisdiction over public officials and public emlll~es. there are certain areas of the Ethia I..1W of which tile practicing attorney in the Slate of Nabama should be aVo'are.

Section I Reporting Violations of the Alabam. Ethics L.w Section 36·25· 1; of the 1995 amended ~:lh iC$ Law prO\lldcs Ihal: ~(a)

£1'fJrV gmvlnlml!lItul ogencv hl!ud

sltall withill 10 du¥s file reports with the commission

all

allY matters thai

come 10 his or hllr affnl/ion in his or her official capacity which COllst /fufe u u;o/aliOIl of Ihis dUipler. (b) Gooomme11(u! ugl.!nCII heads shall coopcro((I in c/)(Jry pos.fbl/! mallllffr in collm..>ctiOIl with any intJC!s/igulioll or hearing, public or wioo1e, which may

Ix1 conducteel by the rolm/li.~siol1 ." While the law requiru that evtl')' gov. ernmental agency or department head report suspected violations of the Ethics Law to lhe Commission, it is important to recognize thal it is not the department head's responsibility to determine

these matter! to the Commission rests solely on the dtp.'lrtmenl heM!. for the Ethics L.lw 10 be successfu ll ~ enforced. it is incumbent UPOll those individuals who provide legal counsel to Ihe various public entities to not only make those governmental ofticials wholll lh~y represent aware of the reporting requirements, but to Ildvist. those officials as to the merits of a suspected Ethics violation, Arecommended guideline if there is blly quc~ lion is, "when 11'1 doubt. report to tile Commission," Oue to the litigiou5 nature of todbY'S $OCiety, many individuals are somewhat reluctant to report suspected violations fo r fear of incu rring liabilily (or thei r actions, Governmental agency heads should ~ counseled that If their rcport is made in good faith 10 the Commission, no liability will auach to thenl, Their flili ure to file the required information, however, could subject "'Ail e .. 'OQIII . ".

that governmental agency or dep;.lrt· menl head to criminal liability. Seclion 36·25·27(aH71 maku the fail· ure to diM:I05e required information 10 the Ethics Commission a Cia» A misde· meanor. Under the Ethics Law. a Clan A misdemeanor is punishable by up to a year in prison and up to b 52.000 fine, Under the new law, there is a two·year statute of IImitaiions for misdemeanor prosecutions. Section 36·25·17 further requires that the reporting of suspected violations to the Ethics Law be made within ten days. From a realistic viewpoint, Ihe Ethics Commission is not 50 concerned as 10 when the suspected vioilltion is reported, but thai tht SU5ptcted vlolalion is, in (act, re ported, Por example, should the dClhitiment head !101 make the report until the 13" or IS'" day Is of little or no constquence as long as the report is indeed med with the Commission. Section 36·25·2(c) indicates that the Ethics Law shall be liberally construed to promote complete diM:IO$ure of all relative information and to ensure that the public interest is fully protected. There are many situations under which a department will conduct an internal in\/tstlgltiOll into alleged viola· tions of the Alablma Ethics Law. Should disclO$ure of Ihe in\/tstigation hinder or jeopardi ...e an internal in\/tstigation, the Ethics Commiss on WQuld surely nol hold the departmenl head 10 a strict ten·day reporting requirement. However, as a practical matter, the Commission should be notified of th~ intern"l invcltigltion wilh Ihe additional cavcat thaL tht results of the internal inwstigation will be. forwarded to the Commission upon completion, Generally speaking. the Commission will then take nQ action untlltht inter· nal in\/tstigation is completed, Section 36·25·17 fu rther requires department healls to cooperate in e\/try possible manner in connection with any investigation or hearing being conduct· ed by the Alabama Ethics Commission. Therefore, II deputment h(!lId should be prepared to provide the Ethics Commission with any and all documen· tation that supports the allegation. as • 0. M AIIC H

. ou

well as making individ~Jal$ available to assist in gathering nteded documents. In other words. a derartmenl head should not file a complainl with the Ethics Commission and then fail or refuse to provide the documentation to bllck up the charges. A further question that arises is whether or not a dep.lrlment head or counsel for that departmenl head may require an employee to testify in matlers relillinJilo that investiAation.

The f;thics Lilw ele.nly s\<ltu tlklt respondents may not be required to testify or be a witne$.~ ag,"lnst themselves duro ing any phase of an Ethics Commission invtstigaUon. In 3ddition. as Ule Ethics Commission has no subpoena ~'tr, no witness may be compelled to testify. The case of Garrity v, Netb.Jmev, 87 S. Ct. 616,385 US. 493, 17 L. Ed. 2d 562 (1967). held that a po ice officer may be required to giw a statement d~lrinll an inlemal investiAation and refusal 10 do so could result in termination or Olher disciplinary action. However, should the police officer give a sLl.tement. while it may be used against lhM officer in disci· plinal'y !rlatten. It may not be used against him in a criminal proceeding, Based on Gal'l'ity and the Ethics Commission·s lack of 5ubpoen3 power, the Ethics Commissic)1l has taken the position that a department head may not force an employee to testify before the Commission and then use that testi· mony against the tl1"{)loyee in II crimi· nal proceeding. This would especially hold true with individuals who are answering to ethics complaints. However. a depbrtment head should, under no circumstances. diM:ourage or prohibit an employee. who is asked to testify, from testifying.

One area of concern thlll hM arisen on numerous occasions under the reporting requirements of Section 36· 25. 17 is the question of whether or not the department head. in fulfilling their legal oblig.ltion to report oil suspected violation. Is merely fulfillinll their reporting requirements. or is in fact filing an official complaint. The Ethics Commission has addrcs$ed this sitwlion (rom two perspectiVe!. In one situation. a departmenl head is fulfilling his reporting requirements under tht law and has taken appropriate action against the empl~'tt in relation to the suspected violation, and does not intend the report to be a formal com· plaint. Under Ihis scenario, it is within the Ethics Commission's dIscretion to either treal the notification as a complaint and investigate fu rlher, or If nppropriate action hM i nd~ed been taken by the department head. 10 comider the mailer appropriately hluldled and the reporting requlremenlJ satisfied. Under the second scenario. the department head not only fu lfills his reporting requirements but fu lly Intends for his notification to the Commission to serve as a formal com· plaint. Under the second scenario. an investigation will be instituted into the allegations 115 would be done in the cast of any other complainl filed with UIC Commission.

Section II n ••olvlng Conflict. of Int.,..t. Under the Alabama Ethic. Law One key IIrca that attorneys who re present public entities orten have to deal with involve~ ~itualions whereby a connict of interests Is presc!lttd. The Alabama Ethics Law defines a connicl of interest as: "(8) CONfl.lCT Of /mEREST. A con· flict on tlul part 01a public offldal or public emp/ogegix!/weeI, his or her private in/crests arn//he offid!ll res/JOtUibllities inhen",t in an office of,wblic lrust. A conflict ofilllt.'N!S1 inlJ()/!1i'S any 00;011, inoctiOll, or ckdskm by a public oflidal or pI/bile emplQ!J«l in lite discharge 01

his or her official dulies which u/ould material/v oRecl his or her (;'lUnciol hlll!rtS1 or lhose of his or her fomilv members or OilY business wilh which fhe persOfl is OSJOCillt,'(/ ill a man/ler diRerenl from Ihe 11I(III"cr il aRects Iha other IrK'miJers of lhe class 10 which he or she

funding matters, In that opinion. the supreme court stated that legisilltorsleducaton could vote: and participate in matters Ulat they or a family mcmber millht be affected by,

fx!longs, ~

For example, /I member of a county bo.1rd of educatlon ha$ a spou.se who is employed as /I tenured teacher within that county school system. The Question thllt presents itself is, "Am I strictly prohibited from participatlng in any matters that come before the board for offi cial action due to the fact that my spouse will be impacted by my action?" In OPINION OP rHf: JUSTIC£S NO. 317, 474 So. 2d 700, the Stlpreme Court of the State of Alabama addrused /I similar situation regarding ICllislators who were also educators, or who had spouses who were educators. and what, if any, hwolvemenl they could have in 5chool

provided, lhllt they or the family member were not affected in a manner dif· ferent from other members of the class to wh ich they belong, In Ihe hypothetical Jituation we have prucntcd, a county OO/lrd of education

Tells the whole story about U.S. District Judge Frank M. Johnson,Jr. and his years on the bench. Filled /f/flb 11'/(8 (tI1(.'Ccioles! slories oj bis srotvlng IIjJ 111 lIorlb Aklbamtt, Ibe dtly·ill (Iud dl{y,oUI cietlling Iflilb COIISlilllliOflll1;sslIes- mtIllY fi'Ol1I bis OWII viewpoint. 1bld as il bas never beefl lold be/ore. "frank Sikor.I's book :ulm ir.lbly tells the Slor), of Judge Johnson's courageous th..'d siolls," /tom liJf /nlrt)du(lk)n b)'

U.S. JU~ljCc \l-1111:1111 j , Hrenn:1II Jr. Sow TIIBJUt)(}lf; t lHJ Lifo 6< Opln/OIlS (ifAlabffllln's f'rfIllN !1I.j olJ//S(lIIjr.

be )'01l1'S fllr only $28.S0 Iitus $4 slitilplull Ulld h~ndttIl8. lilly!lIle for yourself arid :mochl'r for a friend for only S50 pl u~ S4 Mil. call I-MQO·9S9-j14S 10 order II'lIh VISA. M:a.'ilcrf.:ard or Alnl'licaJl Expre!i5. Or 'I:tlla cllrck (pa)"ble 10 !!lack 1lcI1 1'rcs.~) 10; B1~ck Ik'h Pn..~, I~O. Iklx SS I, MOntgomff)', At jQ tOt. C'J!I

member may \/Ote on an Il(ross·the· board pay raise for all emp:oyeu of the school system, but not vott, attempt to innuence or in any way participate In a vote for a pay raise that is only going 10 be given 10 science teachers, when that board member's spouse ha{lpens to be a science teacher. The effect of that \/Ote would be lhal the spouse is affected dif· ferently from other membus of the C135$ to which he or she Iw!longs, that class being all employees rI that county school SySlem. In the past several months, the Ethic5 Commission ha$ rendered numerous advisor)' opinions relating to this matter, a sampling of which is below, Ad ...1801')' Opinion No, 95-73 states that (l mayor or council member mny not vote or partiCipate in any matters which would result in finar'l:ial gain to the member, or fami ly member, or a buslncss In which the mllyor or council member has an interest.

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Ad vll ory Opinion No. 96-20 ltatu

that a city council member, whose 5pouse is emplo-;td as a tenured teacher by the City of Athens School System,. may vote on an appointmentlO the cIty !.Chool board. i\dvlaory Opinion No. 96·69 statu \hilt an employee with a municip<" water and sewer board may run for the position of city councilm(ln or mayor 1II1d hold the s.,me, if elecled: provided, Ih.,1 Ihl: public o(fiCI: is not used for personal gain, thai he not VOle 01\ or otherw~5t participate In the apl)Qintment of hIS 5UperiOrs 10 the w:,ler llfld sewer board, and that the duties of city councilman or mayor are performed on his own lime, and furlher Ihat no public equip· ment. facilities. time, materials, or labor are used to assist the public o(ficia1. Further, a IT\3yor Qr council member, whose spouse i5 employed with that cily's library, may nol vote or otherwise p.wticipate on a matter thilt will affect his spouse in a manner differently than the ru t of tht class to which she belongs. Further, a mlIf'Or or council member, whose spouse is employed wilh that . city's library, may not vote or olherwlse participate in any budgelary mlillers rtlilling to the library employing the spouse. Ad visory O" lnlon No. 06-78 s tate ~ that a superintendent of a county $Chool system, may recommend an acrou.thc.board pay ralst for all school board employees, including his wife. as long as his wife does not benefit in II manner differenl from other members of the class to v..'hich she belong.,.

• J A memlx1r of alegisultive bodll 0" a ml~lIl1r /lJhich inl}()/l'Cs Ihal jXlrson ~ offlcial duties. Attorney ••• Lobbyl.,. 2. A persall or allomey rendering Section 36·25·1( 171 defillCS lobbying lI$: profe.uiollal services ill drafting bills or "(17) I.OIJIJYINC. 1~le practice of pro· in advising clients (md in rellderi11fl mo/in.9. ol1PoshlY, or in tlll./j m(llmer Ol)illioll$ tiS 10 Ihe construction {Illd influ('f1cinJl I)r allfmltJlin9 to influence effect 01 proposed or ,xmding legisla· the introduclion, deic.'£ll, or (maclmenl lion exccutilHl {Ietioll, or rules or ,,>gu01 legi.~latio" lx>fore oily legislatiUCl lati~"s, where Ihose wofessiollal ser~ body: opposl"g or ill UIlY mOllller influ· vices are 1101 o/h(!flvise wmet;ted WIth (!tleillg the t'xeculitle apPI'QIXII, 00/0, or legis/ati///!, f!:\·('Culi/!(J, or regulatory amerldme"t 01 1('fIis/lJlioll: or Ihe pracactioll. lice ofpromo/ing. opposilif/, or in ally 3. Re/JOrlltrs alld edifol'$ while pur.~I1 · manner influencing or attempting to illll normal reportorial alld editorial influence Ihe enoc/ment, I,romull/alioll, duties. IIIo</ificalioll, or deletioll of fI!.9u/al iom 4. AIl.V citizel} riot t?X/1fJlldillg fUllds tiS before any regulalorv b<xlg: prOtJidild. sct oul above ill parograph 0.3. or 110t howeller, Ihat W()lJidill9 lobbying for compel/slilioll who COli ' public leslimony wfore a {(>gis/atille tacts a member of 0 Icgisla/iu(! body. or body or ff.!gu/aIOry body or allY COlligives public testimollY Oil a parlieular mift+!flthr.!r€Of .~hafl nol be d('(Imcd lob· issl/e or OI1IX1rtiCl.llllr II..'fjis/atioll, or for Ihe purpose of illfluel1cinG legislation byirzg. " Further. Section 35·25·1(18)(a) and who is ml!roly exercising his or her constitulional right to commullicate defines a lobbyist as: ' 1. A persoll who f(!cci/'i!s COlllpl!tI$awith membfrs of a li.'fjislall've bodg. tioll or reimburS4!mrrlt from "'lother 5. A perSall /lJho appears oofore a It?{}persoll. group, or en lily to lobby. islatilHl body, a rClf/ulatory body. or all 2. A I}/Irson who lobbie.f as a rClf/ular executille a{fi!llcy fO eithar sell or purand usual port of cn;ploymell/, whl!lhr.!r chaSl! goods or Slmllces. , or IIOt ally compel/saliolJ ill o(lclition/o 6. A persoll whosj! primary dulrcs or regular salary alld Mlefits is reatiood. respollsibililies do nol include lobbyillg. 3. A person who expends in excess of bul who IIIag, from time to /lme, orgaoml hundred dol/ars ($100) for a thillg nIze social elXmls for mambars of a leg· 01 t>(Jlue. not illcludill!! funds eXlX!ndl!d isllllit'C lKx/ylO m(.>et alld confer wilh ror tru!H!/, subsistence eX1xmses. (mil lit· mcmbc!rs of profi!.'.siollal Crf}ullizaliolls e~alllre, buttons. stickers. publicatiolls. und ,uho ma.v have Dilly irff.!l/ular COIl' or o/her acls of frcc speech. durtng 0 lacls wilh members of a I~islative bodywhel1 the body is 110t ill session Of ca/(",dar /leur to lobby. 4. II col/sullan/to the stote. COllllly. when file body Is ill receu. ~ or municipal levels of g<HJemm(,.'/J1 or Acommon question that arises when Iheir irnlrurmmta/ltll?s, in atlll rmmner an attorney is representina clients emploYlld /0 influcllcc legislation or before public boards and bodie5 is regulation, regardleM whether the co,,· whether or not that aUorney is in fact .(u/lallt is paid in wllole or port from serving as a lobbyist. Several questions state, counly, mUllidpol. or "rillate for thought are: (II Under whal circumst:mces is an fw/ds. 5. An employee, a p(lid cOl1sll{uml, or attorney required to f\:g;st~r as a lobbyist? a memlHtr of the stOlT of a lobbgist. (2) Would art attorn(,), be requi red to whetller or nol he or she is /Jaid, who register as a ,obbyist e\lery time he or regularly oommuniC'J/cs uri!h mem~r5 $ite mes an appearance of counsel with of 0 It'Uislalil'C b<xly fCgardmg pI.!lldmg :1.11 agency on behalf of a client? (epistal ioll and olhef mailer.' while ilUI (3) Who will be affected by the altor· ""'fIislati/1f! body is in session." ney's actions?

Section III

Section 36·25· 1(IBl(b) excludes frorn the definition of" lobbyist the (ollowing:

" . . . . . RC H ,0<>0

The important distinction to make is. when doeslhe <lltomey cease to be "n

attorney representing a client and become II lobbyist. triggering the reporting requirements of the Atllbrlll"la Ethics L"w? The obvious distinction is the situation where an association consisting of numerous businWI:$ with similar inter· eslS hires an attomey to represent them regarding legislatiOr\ that impacts on the various association members. This obviously would consist of lobbyinll, thereby triggering the reporting re(tuirements and requiring the attorney to register with the Commiuion 115 a. lobbyist. If the a\tomey is merely representing II client befOre ,In agency. he may not nee· e""'rily be con$id''I'ed a lobbyist. For example. lin attOrrlC), represents an individual attemptirlg to have a pial restriction lifted by the municipal zoning board, The foct that the official action requested will impact only on the client ....,ouid not triAller the lobbyi~ registration requirements as this is II situation where the attorney is clearly representing Ihe Intcrests of 1\ client. and not attempting to influence legislation per se. On the other hand, should thllt same IIltorney be appearing before the same municipal zoning board in an dfort to h/lvt the entire munidp.11 zoning ordi· nance revised, he 'NQuld indeed be con· sidered a lobbyist and would therefore have to register WIth the Ethics Commission. A key consideration in m:.king the distinction is who will be affected by the attorney's actions. Will the actions havt lin impact On only the individu/ll he is Immediately representing, or will his actlon5 have an impact on II broader group? If his actions have an Impact on a larger group. nlore than likely. he will be considered a. lobbyist and not strictly an attorney representing II client. There /Ire many agencies within the State of Alabama whereby an attorney represents a client justa, he would rep· resent a client in II courl of l;,w. For cllo'mple, before the I'ublic Service Commission, an attorney is required to file form1l1 pleadings, notices of appeatance. briefs, tiC. In this setting, which is more likely than not a quasi-Itdversar· ial setting. the attorney would again

merely be representi ng a client and advocating the interests of that client. On the ot her hand, shou ld the ll.ttorney be representing II spedal interest group in an effort to have regulations. guidelines. etc .. rtvi$dl. changed. or amend· ed, he would be lobbying and would be required to register With the Alabama Ethics Commission.

Section IV R.p .....ntlng Client. aefore the Alabama Ethic.

Comml •• lon The Alabama Ethics Commission ~iu; ;u a (IUllSi·criminal body whose (unction i5 to determine whether or not prob<lble cause exisls 10 believe that an individual who ha5 been charRed with violating the Aillhama F.thic5 l.aw has violated the Ethics Law. Stclion 36-25-1(23) defines probable cause 115, "A finding thilt the allegations are more likely than not to have occu rred." The Ethics Commis5ion. therefore, serves in the ",lture of a grand jury. and hearings before the Ethics Commission

are conducted in much the samc mannu as proceedings before a grand jury. In fact, Section 36.254(b) states that II complaint filed with the Ethics Commlulon 15 "subject to the same restriction! relatinll to ~ecrecy and non· disclosu re of information. conversation. knowledge. or evidence of Sections 1216·214 to 12· 16-2 16 ... " (commonly referred to as lhe Gtand Jury Secrecy Act). Section 36-254(d) requiru that II respondent be given no less than 45 days' notice of a complaint having been fil ed against him or her prior to that matter being sel for a hearing with lhe Ethics Commission.

II i D~~r.n

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Ju~t as with .. grand jury proceeding, there 15 no right to crou-tKamination, nor are the Rules of ~: . . idence strict ly applied. We 0111 know thaI when 11 client has been sued dvilly, the first step in defending the client Is \0 obtain 11 cop}, or the complaint. I.i kewise. if you Rre representing 11 criminal de(endllnl, you first obtain a cop>, or the Indictment. However. undu the Alabama Ethics Law, a complaint filed with the commission is considered confidential information and is not discoverable ..s provided in Section 36-25- 1(7). which slates: "(7) CONFIDENTIiII. INFORMATION.

II complaint filed pursuanf to this chapter, logefhl..>r wilh (lIlV sfalflml.'nl. oon·

/J0'$(Jlions, Imoft:ledge ofevidl..'TlCf!, or

information received (rom (he comploinalll, wilne$$, Of other pers(JII relal·

ed to such complainl. ~ To protect the respondent's due process rights, the IIIW requires that the respondent be provided with a summaI)' of the charges thllt have been levied against him or her, The policy of the Ethics Commission is to make thllt summary 11$ dellliled as possible in order to make Cilrtain thaI the respondent's due procus rights IIrc protected .

One 0( the oo$ic CQnCept$ in legal pro. ceeding.s is the right of cross·examina· tion. Ilov.'WCr, under the Grllnd Jury Secrecy LaW$, there i$ no right 01 croo· examination. When a complaimnttestifies before the Commission. neither the respondent nor his or her attorney is present in the hearing room. and likewise. when a respondent and his attorney testify before the Commission, the com· plainant is nol present in the hearing room. In addition, the respondent may produce any witnesses he or she deems neccS5<uy to defend the ~lIegalions levied ag~inst him or her: ho~ve r. when those witnesses testify, neither the respondent nor the respolldcnt's atlotney lire allowed to be present in the room, nor may they examine those witnesses. Should you as lin attorney represent nn individual before the Ethics Commission, the filing of a formal notice of appearance is not II technical requirement; howewr. in order that all communications be ilddressed through )'Ou and not )'Our client. it would be the wiser courst of acticn to file a notice of appearall(e as soon l$ you are retained by your cHent. As the Alllooma Ethics CommluiOIl does not have subpoena power. the commission may not compel lhe attendance of either respondent.s or witness· es at a commission hearing. 1\5 an aUor· ney representing 3 dienl before the commission. it is ),ol.lr judgment which should determine whether or not your client is going to appear and lestify before the. commission. The Alabama Ethics L.1W provilie.s that di$covcry will be. made Ilursuan\ to nul\! 16.1 of the Alabama Rules of Criminttf

... . pt • • L. Sumn. r, Jr. Jomot I. Svmr\or, Jr "tho dlu,ctor 01 the

Ala06ma Eth~s ConvniUion. ~Vlng been appointed to tllII positIOn by the Commlillon In Apill t997 Pl'ior 10 hit

IppolntrnOrl1, Sur'nroof IOfVO(l as auillant to the vlce-chancollol lor alliamal aliaII'. 01 the UMo"'lty 01 Alabama System, aa VlCe·pres· 1denlJl&glsilltrvo 11111\11 ' ror tilt AlII~ HoIpltll Aaaoclatlon and H executive aAillanc .mI chlet 01 . tan In the lleulenanl governor .. oIlre e He allO torVOCIos.amin· ielfllillie ",Istanl \(I \hi lara U S Cm::urt Judge RotIefI 5 VancelOd H en ...... tant allorney genel'11 He Is a gfa<Juate 01 the UnIYef,lly 01 ~ Ind C¢lbtrl6tlCl $ehOOl 01 Law. SamIOId Ur~ty r OI ' . . II CH "uo

l"rocedure. Under the Ruies ofCr;mitwl Procedura, the Ethics Commission will

provide to you and your client. prior to the hearing. copies of any statemenu lhllt your client may havt made to a spedal agent of the Alabama Ethics Commission. In addition. should there be co·respondents to the complaint, you will likewise be provided with their statements. As II general rule. it is the policy of the ~Ihics Commission to suppl)' to the respondent an), information and docu· mentation that may arguably be e.)!:culpatory In nature. [n addit ion, any documentation thal your client is questioned on during ally interview conducted wilh a ~taf( member of the commission will be Ilrovided to you as part of the discovery process. Just as in a normal criminal proceed. ing. the Ethics Commission will not disclose internal memoranda. speCifics of an investigation which mJ)' include opinion. or witnesses who ma)' testify before the commission. After the. Elhics Comm ssion he.ilrs the lestimony and evidence relating to the complaint. one. of thrte possibilities exists. ~'iT$t of all, tht Ethics Commission can dNtrmine thott probable eause does not exist and close the case. ending the matter at lhat point. Likewise. the Ethics Commission can determine lhat probable cause does u ist and Clm refer the. C<lJe. for further revie.w and presentation to a grand jury to either the attorney general or the dist rict attorney for the appropriate jurisdiction. For purposes of the ~:thi cs 1..1w, V(:nue i5 locllIed in lhe county where Lhe HuOh R . ..... n . , III

Hugh R Evenl. III reoer.-ad ilia ulK18fgradulie dogroe 'rom Aubul'll l)niverliry lit Montgomery arid hli J 0 cIo~tee 'rom JonetI School ot I.lw He Pfl!lII8rltly Mrve8 I I anlslanl director and gtrI8I'al oounll8l lor Itlt AI/!Ibtrl'la Elhlc. CorM'oIUion

alleged violation occurred. Should the violation have occurred outside the State o( Alabama, venue lies In Montgomery. Should the attorney gentral or district attorney have a conflict or otherwise be L.nable to prosecute the ClIse, the case may be referred back to the Ethics Commission (or prosecution by the commission ~ tilff under the auspices of eit her lhe attorney general or the district attorney. When the Aiab.1lTla Ethics Law was amended in 1995 to give the Ethics Commission prosecutorial powers. there was a benefit that I'.'as created that was undoubtedly not inteoded. Bec.'luse the Ethics Commission h.1S prosecutorlal I)()wCrs lind the case mlly be referred back to the cQmmissiQn staff (or handling, the I:;thlcs CQmmission's policy is that the sbff will rIot mllkt a recommendation 0( probable cause unles.s the starr is ready, willing and able to prosecute the case to its conclusion. 111.$ bcntfit accrues to the respondent in lhal lhe staff 11.1$ placed a higher burden on itself than the general probable cause standard. Prior to the 1995 amendments tQlhe Ethics t.aw, the Ethics Commission had only two choices of Ktlon: (I) refer the cast for prosecution. and (2) close lhe case fQr lack of probable cause. The AlnOOn..., Ethics Law, as amended, includes Il ilrocedure known as an "adnlinlstratiV(: rC5Qlution." An administrative resolution ls appropriate when the financial bcrlefit to the individual charged or the financial detriment to the public entity is less lhan $250. Il1llking it a minor violation as defintd by law. Should the ~th ics Commission determine that an administrative resolution is appropriilte. severtll steps must be taken. Pirst of all. the respondent must request that his or her case be handled admlnistrativelyalld must acknowledge an unintentional violation of the law. In other words. lin individual may not appear before th~ Ethics Commission and simply state, ' 1did not do this: however, I would like to have my case handled administratively." Should the respondent request an administrative resolution. the Ethies Commiuion must unanimously agree to have the milller handled administra·

tively. Should the commission dQso, either the attorney general or the district attorney (or the apprOllrlllte jurisdiction must also gi~ their approval. Once the paperwork is completed, the Ethics Commission c~n order restitution to be paid ilnd m~y order II fine of thru timu the restitut ion up to $1.000. The mission Qf the Ethics Commbsion i~ not only the responsibil ity o( seeing that IndiYiduals who have violated the Ethics Law /lrt adequately punished, but it is also 10 sec that those individuals who have had a complaint wrongly filed against them havt their good name and character cleared. The cQmmission staff works equlI.lly hard to accomplish both gOilb.

Section V Advisory Opinions

Just as the attorney general's offi ce is charged with the responsibility of inter· prellng various sections of Alnbama law. so is the 8thics Commission chnrged with rendering adviSOry opinions relat· ing to interpretations of the Alabamtl Ethics Law. Any individual within the State of Alabama. whether it be II public offici/ll, public employee. attorney representing one of the abQve classes o( individuals. or an Individual who pu rely has an interest in stille law. may reqllest a fo rmal advisory opinion based on either a hypothetical set of facls or an actual fact situation. provided that the sce· nario 15 prospective in nature. A (ormlll advisory opinion Is drafted by the staff of the Ethics Commiu ion and is presented 10 tht commission for omcialaction. The commission Il1llY either adQPI the opinion a5 drafted. /ldepl the opinion with modifications. or Il1llY render an entirely different opinion from that which was presented 10 the commbsion. A formal advi~o ry Qpinion C/lrries the weight of law to the extent that it is (I) requested in good falt~ : (2) all pertinent facts are made available to the commission: and (3) it is relied on as rendered. An advisory opinion is only as good as the (acts that are presented. Should an

individual provide /I specin: set of facts to the ~th ics Commission which ltave Qut material details. then tile advisory opinion will not offer that individual the protection of law. Likewise. an advisory opinion that is relied upon in good faith by other individuals similarly situated \0 that of the individual requesting the opinion will al$Q prQteet lhat person from jlOtentialliability. •

IIWIC.II./ IlE''I'.I/. \I I HIII ·l fT/I:E EXPERTS

..... RC H tUotll t OI

Practitioner's Guide to the Alabama Age Discrimination Act of 1997 By John IV. Sheffield and Brian It Bostick

he Alabama legislature recently enacted Alabama Ik~~ Act No. 97·723, which prohibits age discrimination in employmenl. The Act went into

effect on August 1, 1997, and now Alabama, like every other state, the [)i~l r ict of Columbia, Puerto nicQ, and the Virgin Islands. has an altt

discrimir\ation statute.' Yet , important di5tinctions betwccn Alabama and all other stllles will give rise to several questions about Ihe application and Interpretation of Alabama's statute.

Alabama is one of only three slaltS that does not have a slale or local filif employment practice ("FE"") agency that handles diJCrimination complaints under the relevant slate or local law.' The o\her two stain

that have no such agencies are f.lissi$$ippi and Arkansu . However. Alabama is unlike Mississippi and Arkansas. because thost two states' statutes lire limited to public officers and employfu, and lilt Sp:!tU case law interprtling those two statutes sheds litlle light on any comp:!rable interpretation of Alabama's Act Three states (Coorgia. Louisiana and North Dakota) have local (ai r employment agencies that have not been given nFEIl designation" by the £qual £mployment Opportunity Commission.' Again, howtVer, the statutes of North Dakota and Ceorgi" .. re distinct from AJaba.ma's becaU$(! they provide that a statutory violation constitutes a misdemtaoor pUflishable by fin e, Thus, liability is imposed criminally, not civilly. Louisiana hM adopted an age discrimination statute

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108

that is somewhat similar to Alab,una's statute.' Uoth statutes expressly provide (or n private right of IIction. Because tlml statute, like Alabama'5. only became effective on August I , 1997, there is not much c.ue law to help practitioners and courts inttrpret Alabama's statute. Alabama's Act is modeled somewhat aner the federal Age Discrimination In Employment Act ("ADEN) of 1967. 29 U.S.C. §§ 621 fU seq. Genmlly, both prohibit disctiminlition In employment against individuals who are allellSt 40 years old. The Alabama statute expres~ ly adopts all remedies. defenses and statutes of limitation enumerated in the federal ADEA. Stale courts commonly look to federal AOEA precedent (or guidance in construing provisions of state statutes that are similar to. or the same as. the terms of the federal statute. However. state law will not neces$IIrily be read and applied the 5Ilme wily as il ~ federal counterpart simply because a given stale law provision parallels an AD~;A provision. The enactment of Alabama's Age Dlscrlmllllltlon in Employment Act poses several questions that Alabama's CO(lrts and practitioners will be forced to answer in the near future. Some important iSSUC5 to be resol~d include: (1) how the act interacts with other statutu; (2) the applicable statute of limitalions period; (3) proptr plaintiffs and ddemtant,$: (4) prohibited emplo)'ment practices and available affi rm/ltive defenses: (5) available remedies: /lr\d (6) the constitutionality of the act.

Interaction with Other Statutes A. Th. Fltderal Ag. IMscrlmlnatlon In Employment Act The Alabama Age Discrimination Act was intended

to be an altcrnlllive form of relie( to lhe federal ADEA. Therefore, the statute provides thlll "If an action is brought in the federal court. any action pending in lhe sUte court shall be simultaneously dismissed with prejudlce.~ 1997 Alabama Acts 97·723 § 10. The federal ADEA llisa notes the superiority of a fede ral action by stating that a fedenll ADEA ~ction "$h~1I supersede ~ny State acllon." 29 U.S.C, § 633(a). U, for some reason. a defendant fails to move to dismlu the state court action, there are still fu rther safeguards expressed in the statute. The Alabama statute provides thllt the plaintiff ~sha ll onty be entitled to one recovery o( dllmalles. Any dam· ages assessed in one court will offset any entiliemenllo damages in any other !late or fede ral court." 1997 Altlbamll Acts 97-723 § 10. If the Alabama courts stray from lhe language in the Alabama statute and allow (or damages not recoverable under the federal ADEA (i.e., COmpensatory and punitive damages). then there could be much confusion in determinIng what damages are offset by damages awarded in another court.

B. ERISA

Section 514(a). 29 U.S.C. § 1144(a), of Jo:RISA provides that if a state law "relate[s1 to ... employee benefit plans." then it is preempted. "A law 'relates to' an emplO,Yt!e benefit plan if it has a connection with or rderence to such a plan." Chom,1iOll /ll /ern. Corp. 0. Broom, 73 1 F.2d 1406. 1403 (9th Cir. 1984). "ITlhe expreu preemplion provisions of ERISA are deliberately expansive, and designed to 'cstablish p/!nsion plan regullllion ,u exclusively a federnl concem."· Pi/ol Ufe IlIsrmlllCl! Co. v. ~tievllx, 481 U.S. 41. 45-46 (1 987) «tuoting Alessi 0. Raylwsl().~-Nal1h(/lI(//r. Inc.. 451 U.S. 504. 523 (198 1I). Thus. to thc extent the Alabama AOEA applies to employee benefit pillos covered by ERI SA. the Alabama stlltute may be preempted in some cases.~, e.g.. Von Camp 0. AT & T I"fo. Sys" 963 ~:2d 11 9 (6th Ci r. 1992)(ER ISA pre· empted state age and sex discrimination claims of participant who was allegedly forced to accept carly retiremenl under enhanced pension plan in lieu of reassignment). rerl. (II/flied,

506 U.S. 934 (1992), QWffuk-d Oil olh(tr ground$, 46 (6th Ci T. 1995).

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c. AI.b.m. V.nu. Stetut•• The Araoon~ Am::A provides th:!.t an employee "may bring a civil action in the circuit court of the county in which the person was or is employed .... 1997 Alabama Act.s 97·723 § 10, Under Alaooma Code § 6·3·7: A fo reign corporation may be sued In any county in which it does business by agent, and a domestic corporation may be sued in any counly in which it does business by agent or Wi\S doing business by agent at the time the cause of action arose; provided, that all actions against a domestic corporation for per:Klnat injuries musl be commenced in the cQunty where the injury occurred or In the county where the plaintiff ruidu if $uch corrlOration doe~ busineu by allent in the county of the plaintiffs residence. The venue proviSion In the Aihlmmll. Age Act does not allow for suit in the plaintiffs counly of residence, unless that hap· pens to be Ihe county in which the ptllintiff is employed. Further, no distinction is made between domestic and foreign corporations. Thus, if the Alabama courts strictly follow the Jangualle of the Act, then a plaintiffs choice of w:nue will be limited to the county of his or her employment. Where a spc· M

CLASS ACTIOf.! ADM INI STRAT I ON

Settlement Notice Administration CnII Centor Assistance Address Tracklng Sotvlce Class Mornbel' Do.ts Bo.so Malntononce Claims Fonn Hondllng Sottloment Bonofit Disbursement

1.888A14.1470 Toll Free

cific venu£ provision is provided in" legi51i\1ive enactment, Alabama precedent indicates that the specific venue provision will control over the general venue provisions d the Alabama Code. Ex parle Ala. Depl. oIe'I/v. Myl .. 623 So. 2d 1061. 1063·64 (Ala, 1993).

Proper Plaintiffs Under U,e Alabamll Act, any "worker 40 years of age and Tll1lY sue for age discrimination, Cour" haw: deter· mined that the federal Am:A does not cover uniformed mili· tary personnel,' and independent contractors are also excluded from the definition of "employee" under Ihe federal AI)EA, and are therefore, nol allowed to nte suit. The federal Am;A allows private employers to impose mandatory retirement lIt age 65 on cerlain "bona fide execut ives" or "high policy makinll" employees. 29 U.S.C. § 63l(c). Alilbama'5 Act dO£:5 nol define "employee" and does not provide for any of thc above uceptions, but Alllb.. mll courts may cllrve oul exceptions as \0 who may sue under lhe Act. ove r~

Proper Defendants A. Employ.,. Both statutes define an "employer~ as a ptrSOn employing 20 or more employees for tach working day in fach or 20 or more calendar weeks in the current or preceding calendar year. Some fedeTll.l courts ha~ held thai the number of indio viduals employed In the year tht alleged discrimination occurred, not the year when II charge of discrimination is nted or an action commenced, determines whether an entity meets the statutory definition of ..employer.... The Supreme Courl has recently held that "the payroll method represents the fair reading of the statutory language'· in terms of count· ing employees. Wallers 11. Nelrol1O/iI{1Il Educalional Enll!'1)ri.~I!$, IIIC., _ U.S. --, 117 S. Ct. 660 (1997), The EEOC has issued policy guidelines allpJying the "payroll method"ll.s well. The EEOC states Ihat it ISllppropri1lte to count employees malnillined 0 11 the payroll during any given week for employer coverage PUf\)Oses. and not jusl those employees who report to work e~ry day of the work week. EEOC Policy Statement No, N-9IS,OS2 (April 20. 1990). ~'urther, the EEOC states thill temporary employees should be counted if they are actually on the payroll, Bolh acts include any agent of that "person" within the def· inition as well. Alabama courts will have to determine if ,In individual can be a defendant to iI suit under thl AI ..bama statute because lhat individual was acting as an agent of an cmployer. The majority of federal courts that hIIvt addte~~ed this issue have held thllt individuals may not be made defendants under the AD8A.~, e.g., Miller 11. lofoxWi1I1'J IIIlemal;ona/, Inc.• 99 1 ~:2d 583, 587 (9th Cir, 1993) (ADEA case holding that Congress did not intend to allow civilliability to run against individual employees). "rt. dr/lied sub

nom.• Miller II. l.a Rosa. 510 U.S. 1109 (1994); Cross II. 49 f-',Jd 1490. 1504 (II th Cir.) (individual$ cannot be held Hable under TiUe VII or the ADEM. rell 'g deniL'll, 59 F.3d 1248 (1995). The federal act also tKprcssly includes "a state or polilic:ll sub·divislon of n st,lte" in the definition of an employer and certIlin federal employees are protected under the federal act. 29 U.S.C. § 630. Stale lind federal agencies ilre neither specifically excluded or included from coverage under the Alabama Act. / Iowever, federal employees should not be covered under the Aillbllma Act because the United States government is immune from suib to which it has not consented through the doctrine of 50Vereign immunity. St!4I /.A)(!mer u. Prank, 486 U.S. 549 (1988). Sovereign immunity illl jurlsdictionill bar that operates when a suit threatens to Impose liability upon the United StMC$ for money or property damagcs of some form or coercive injunctive relief. &'IJ FOIC u. Neyer, 510 U.S. 471 (l99.(), St,lle employees will abo likely be excluded from coverage under the Act because Article I, § 14 of the Alabama Constitution of 1901 states that "the Stilte of Alabama shall nevt'r be made a defendant in any court of law or equity,~ Section 14 "wholl~ withdraws from the Legislature, or any olher state authority, the power to give consent to a suit against the state: DUtm Construe/ion Co. lJ. Statu Boord of Aqjllslrmml, 234 Ala. 372, 376, 175 So. 383, 386 (19371. Thus, the legislature's f;ulure to expressly exclude state employus from coverage under the Act will IlOt provide a rellSon to penetrilte the "lllrnOAt invindble 'wall' of the state's immunity, 015 established by the Ileople through lheir Constitution." Hu/chinson II. lJoard ofTruslees of University of Alabama. 288 Ala. 20, 24, 256 So.2d 281, 284 (1971). llowever, the Ailibama Supreme Court has h('ld that municipalities :lIld other local governmental entities are not entitled to immunity under § 14. See City of Foley II. Terry. 278 Ala, 30. 175 So.2d 461 (1965). Therefore, municipalities will likely be capable of being sued under the Act. Alabama,

"eng3.gcd in an industry affecting commerce" to be covered by the Act. &-e 29 U.s.C. § 630(d).

Prohibited Employment Practices The Alabama Age Discrimination in ~mployment Act follows the federal ADEA by providing that it is an unlawful employment practice for an employer to: (1) Fail or refuse to hire or discharge an ind,vidual. or otherwise discriminate against an individual with respect to compenMtion, terms. or privileges of employment, because of the age of the individual . (2) Um!t, segregate, or cll1Uify employees or applicants for employment in ilny way which would deprive or tend to deprive lin individual of employment opportunities or to adycrscly ilffect the status of an individual ll$ iln employee. because of the age of the individual. 1997 Alabam., AcU 97-723 § 3. Under both acts, It is an unlawful employmtnt practice for an ~employment IIgency" to fail or refuse to refer for employment an individual because of his or her age. Both acts prohibit ~ Iabor organizatioru" from refusing to refer a mtmber for employment on the basis of IIge,

8. Employment Agencle •• nd Labor Org.nlz.tlon. The Alabama ~tlllute also ililows suits against an "employ. ment agency" or II 'labor org.lnir.tltion." An "employment ililency" is defined as "[alny ... person regularly undertaking, with or without compensation. to procure employees for an employer or to procure for tmployeci opportunities to work for an employer, including any agent of th.1t person. ~ 1997 Alabama Acl$ 97-723 § 1(2). That definition is virtually identical to the definition of "employment agt!ncy" under the federal AOEA. II "labor organization" is defined under the Alabamil statute as "Ialny organitatJon which exists for the purpose. in whole or in part, of collective bargaining, of dealing with employers concerning grievances, terms. or conditions of employment, or of other mutull/llid or prot.ection in connection with employment." 1997 Alabama Acts 97·723 § 1(3). Unlike the federal stMute, lhelabor organir.ation does not have to be 'URC H

'I>oe I '"

or from limiting. segregating, or classifying its membeuhip on the basis 0( aRe. Both acts also contain retaliation provisions. Employers, labor organizations and employment agencies are al50 expressly forbidden from printing or causing to be printed or published any notice or advertisement reiliting to employment that expresses a preference on the basis or age. The EEOC regulations will be helpful for Alabama employers in determining what constitutes words of preference in their advertisements. Those regulations prohibit advertisements containing age.!)ased "trigger W(lrds, ~ such as ~age 25-35,~ ''yOung,H"recent college 51raduatc,~ "boy," or "gi rl.H29 C.F.R. § I625.4(a). The EEOC regulOitions OIlso prohibit advertise· ments that exprcu prefcrencc5 5uch as "age Over 50" or "age ow:r 65" beCllU5e such advertisements miBht exclude individ· uab at the younger end of the protected age group. The Alabllmll Act liiso specifically prohibits covered entities from cO!lSlderlng age in the selection or placement of employees Into apprenticeship or training programs, Also, under the Alabama Act, covered entities cannot discriminate against Individ\4lls who are seeking licensing or certification.

Method of Proof Both the federa l and state acts provide for jury trials. The Alaooma Act, ooNCVer, does not define what method of proof is required to establish liability. [t merely provide$ tnat employers cannot "discriminate" against an individual btcaust of his agt.. Clearly, a plaintVf can establish a violation of the Alabama Act through evidence of disparate tri:atment. A pl:lirttiIT establishes dispi1T"llte treatment v.'hen he PI'OYfS that his employer treated him differenlly than Similarly silu.'lted cmplO)'tes becIIu.se ofhis age. Disparate trealnlent can be proven through either direct or circumstantial e-lidcl\Ce. When the evidence is circumstantial, the Alabama. courts will likely follow the universally accepted burden·shifting framework for Title VII and ADEA cases expressed by the Supreme Court in the following trilogy of cases: McDolmell Doug/liS u. Grt.'eI/, 411 U.S. 792 (1973): 1kras lJf!p(trlmt'll( ofCol1lmunilv Nfl/irs u. &mlllle. 450 U.S. 248 (1981); ~nd SI. Marvs Iionor Cenler II. flicks, 509 U.S. 502 (1993), In (act, AllIb.lnm courts haw: alre~dy adopted tru.t methodology for retaliatory discl...,rsc ca5e5 under § 25·5· 11. 1. Under Ih,lt framework. a plaintiff must first utablish a prima filcil! ClI$t of discrimination. After the plaintiff establishes a prima facie ClI.Se the employer must produce a legitimate. non· discriminatory wlSOn for its action. The plaintiff must then dis· prove the employer'S stated reason and prove that his age was the true reason for Ole adverse action to establish liability, It is not clear whether adverse impact claims will be allowed under the Alabama Act. Under the adverse impact theory, an employer's facially neutral policy or prClctice may be unlawful-dupite no showing of discriminatory intentmerely because it has a significant adverse impact on a protected group. ~'cderal courts are split as to whether the adverse impact theory applies under lhe federal ADM. &e Hazen Paper Co. /J. Biggins, 507 U.S. 604, 607·12 (1993) 'U IfA"CM' "'.

(resel'\ling the issue): MacPherson u. ihliversitvof M01lfcool/o, 922 F.2d 766, 772 (11th Cir. 1991 ) (allowing adverse impact claim under ADt.:A, but affirming district court's directed verdict in favor of employer); f;EOC II. francis IV, Parker School, 41 ~:3d 1073, 1077 (7th Cit. 1994) (holding the AD~.:A does not recognize the adverse impact theory of liability), cerl. denied, 515 U.S. 1142 (l995).

Affirmative Defenses The Alab.lrT\a AOEA provides that "Ialny empl~nt practice authorized by the fedeml Age ]}jscrimination in Employment Act shall also be authori7.ed by this Act ilnd the ... defen~5 ... under this Act 51,.,11 be the same a5 Ihose authori7.cd by the fed~ral Age Discrimination In ~:mployment Act." 1997 Alab.lmn Acts 97·723 § 10. Thus, the federal ADEA provide$ the defen5CS that are available under the Alllooma Act. A. Bt.tutory Provl.lon.

The Federal ADEA authorizes the followinll conduct by employers: 0) '"10 tnke il!ly action otherwise prohibited ...where aliI' is a bona fide occupational Qualification reasonably necessary to the normal operation of the particulilr bU5ine»"; (2) "to !like any action otherwise prohibited ... where the differential is based on reasonable facton other than age"; (3) "to take any action otherwise prohibited ... where such practices involvt an employee in a workplace in a for· eign country, and compliance with Ithe AOEAI WOuld cause such employer, or a corporation controlled by such emplo)'tr, to violate the laws of lilt country in ..... hich such W(lrkplace is localed H; (4) '"to take any action otherwise prohibited ... to observe lhe terms of a bona fide seniority system": (5) "to take any action otherwise prohibited ... to ob~rve lhe terms of II bona fide employee benefit plan"; (6) "to discharge or otherwise discipline an individual fo r ll00d cause.'" 29 U,S,C, § 623{f}, Therefore, the fed eral defenses should be utilized In state court cases. B. "Mlx.d Motlv ••" D.f.n ••

The Alabama Act docs not expressly slate that federal common law defenses to the federal ADM, such as the ~m ixed motives" defense, also apply to the slate A])E.A. The "mixed motives" defense arises when both legitimate and iIIegitimllle COnsiderations playa role in an adw:rse employment decision. In PriCfl II'I1terhouse u, Hopkins, 49() U,S, 228 (1989), the Supreme Court held that once an employee presents direct evidence of discrimination, an employer may escape liability by showing, as an IIJfirmative defense, that it .....ould have made the same decision without regard to the emplo)te's improper

moti~.

The Civil Rights Act of 199 1 Incorporated the Hmixed· standllrd into Tille VII . but provided thaI it was not a complete defense. Even if the employer establishu the dcfl!nse, the court may award attorney', fees and cosu and declaratory and injunctive relief. See 42 U.S.C. §2000c· 5(g)(2)( 11). J lowever. the A DI~i\ was not affected by Ihlll amendment. Thm, a mixed·motives defense under the ADEA is sUli a common law defense. Therefore, it is unclear whether such a dc(ense will be allowed under the Alabama Act becauilt such a defense is "authorized" by Ihe courts. not by the Act itself. ~;ven If the defense is allowed, it is unclear whether Alabama courts Will allow it as a complete defense, or as a limited defense purSUllnl to the Civil Rillhl~ Act of 1991. mot i~s"

Settlements and Releases Another Issue thaI is likely to arise under the Alabama is whether I settlement or release of a claim under that Act constitutes a ddense. and therefore requires the parties to comply with the stringent standards established for releases anti settlemenU under the federal AOEA. Clearly, if II plaintiff attempted to file suit IIft\'r he or she signed a release. the employer would alSert as a defense th:at the ,,<:tion is barred because the plaintiff had already released the employer from any potential tlllbility. Under the federal AOEA. the waiver of "any right or claim" must be "knowing and VOl untary," and wi ll not be considered as such unless the following require· ments of the Older Workers Benefit Protection Act ("OWBPA"), are met: (I) the waiver must be Pout of an agreement that is "written in a manner calculated to be understood" by the individual: (2) the waiver must specifically refer to the ADEA cI:aims or rights: (3) the waiver must not cover prospective clalm~ or rights: (4) the individual musl receive consideration In addition to Ilnythinll: of value 10 which Ihe individual was already Imtitled: (5) the employee must be advised In writing to consult an attorney prior to executing the :agreement: (6) the empl~t must be givtn :at lean 21 d"ys within which to consider the agrument, unless the waiver is offered to a group or cllISS of employees. then the individual must be given a period of at least 45 days within which to consider the agreement: (7) the agreement must provide for at l(:lIn:a seven·day rtvocatlon pulod following the execullorl of thl! allree· menl and the all:reement does not become effective or enforceable unlil Ihe revocation period has expi red. AD~

29 U.S.C. 1626(00).

The Alabama COu rts may determine thilt a reluse or settlement need only be "knowing and volunlary.fl without requiring that the federal statutory requirements be mtl. However. employen would be well advised to comply with the OWBPA requirements for executing a release. which is ncceuary to b;lr a federal ADEA claim.

Remedies A. Comp.n •• torv .nd Punltlv. D.m•••• The Alab.lmll ADt:A hIlS conmcting prOVisions as to what relid is available to plaintiffs under the Act. The Act first prOvidu that a plaintiff may bring an action "for such legal or equitable relid as will effectuate the purposes of this Act." 1997 Albbama Acts 97·723 § 10. This language arguably encompassu compensatory and punitive dlimageJ. However, the Alllbamll stlllute merely tracks the language 0( 29 U,S.C, § 626(c)( 1), which provides that "lalny person aggrieved may bring a civilllctlol\ in any court Of competent jurisdiction fo r such leglll or equitable relief a~ will effectuate the purposes of this Act. Federal courts have unanimously held that com· pensatory and punitive damages lire not recoverable under the fed eral AOEA.!XVI Lindemann & Grossmarl, EmIlIDJ/ment Discn'min(lrion Will, at 644 n.563, & 645 n.566 (3d ed. 1996) (listing cases that have held compensatory and punitive dam· IIges art not recoverable under the federal ADEA). M

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1036. 1038·39 (5th Cir. 1977). a!rf. (""lieel, 434 U,S. 1066 (1978). the fO rmer ~'ifth Ci rcuit e~amined the "legal ... relief as Illily be appropriate 10 effectuilte the pu rposes of this Act" language lind concluded that neither compensatory or punitive damages were recovtrable: The silence of the Act with respect to Iteneral dimagu is entirely consistent with legislatiYf intent to abstain from introducing a volati!e ingredient into the tripartite negotia' tions involving Secretary, employee and employer which might well be calculated to frustrate r:ather than to "effectuate the purposes" of the Act. The proviSions fo r liquidated damilges for willful violation of lhe Act and its silence as to punitive damages convinces us

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that the omission of any rderence thereto was intentional. t1f!all, 559 "~2d OIl 1039. 11\e Alabama Act also provides that "Ihe remedies,.,under this Act shall bt the same ll.\ those authorized by the redern1 Age Discrimination in Ernploymtnt Ac\. ..." 1997 Alabillna Acts 97-723 f lO. Thus, under the Alabama Age Discrimination Act. i1 plaintiff may receive the following relief:

U,S. 1005 (l985). Finally, prtvaiHng plaintiffs aTe entitled of an award of attorney's fees and cosU. &oe 29 U.S.C.I 626(b)(whkh incorporates by reference § 16(b) of the FLSA. 29 U.S.C. § 216(b). which provides that a court shall allow reasotuble attorney's fees and costs to the prevailing plaintl(f).

B. B.ck P., nack pl.y encompasses the "'ages and benefits the plaintiff would h.we received in compensation bul for Ihe ernplo)'er's violation of the Act. It may include lost wages. pension, insurance. vacation, profit-sharing. accrued sick leave and other economic benefits of employment. Back pay accrues from the date of the wrongful act and terminates on lhe dtlte that dam· ages ure "settled." which in most c"ses will be the date of judgment.

A. Contusing St.tutory L.ngu.g_ The most immediate i~ue for the Alabama courts to resolve 15 the applicable statute of limitations. The Alabama Act provides that the "statutes of limitations, under this Act shall be the same as thO$e authorized by the federal ADEA except that II plaintiff shall not be required to pursue any administrative action or remedy prior to filing suit under this Act." 1997 Alab/lma Acts 97-723 § 10. This language is confusing because the statute of limitations In the feder~l AI)EA is bilsed directly on compliance with admlnlSll'lltive filing deadlines. The federal ADEA states that a charlie fl\ust be filed with the EEOC within 180 days of the unlawful practice. 29 U.S.C. f 626(d)(I). Then, after the employee receives his rlght-Io-sue letter from the EEOC. he must filt a federal ADE.A. suil within 90 days. 29 U.S,C. § 626(e). Thus. the statute of limitations under the Alabama Act must be 90 or 180 dAys after the unlawful practice. In deferral states. the fil ing period is extended to 300 days after the occurrence of the unlawful practice or 30 dllYs after the individual receives notice of termination of a state agency proceedi ng. whichever occurs nrst. 29 U.S.C. § 626(d)(2). For a state to qualify as a deferral state it must have: (I ) a law prohibiting age di5Criminlltion in employment: and (2) an agency established or authorized to grant or seek relief froln age diKriminatory practices. 29 U.S.C.§633(bl. Alabama Is not considered a deferral state because it does not meet the .second requirement. Thus, the 300-day lime limit has no application in Alabama. In addition to deciding the applicable limitations period under the Alabama statu t ~, AI"bama courts will have to determine whether the limitations period is subject to equitable tolling. "Equitrtble tolling is a type of equitable modification, which 'often focuses on the plllintlfrs excus,lble Ignorance of the limitations period hnd on Ithej Irtck of prejudice to the defendant ...· Coclre v. Merrill Lyllclt & CQ .. hlC .. 817 ~~2d 1559. 156 1 (11th Cir. 1987) (quoting NaNo" IJ. BanA- of Ca/ifomio, 649 F.2d 69 1. 696 (9th Cir. 1981 )).

C. Llquld.ted D.m.ge. Under the fede ral ADE:A, liquidated damages are awarded for "willful violations of the Ac!." 29 U.S.C.§626(b). To establish a willful violation, the plaintiff must show the employer ~knew or showed reck l e~ disregard for the mailer of whether its conduct was prohibited by the ADEA.~ 7hms World Airlilles II. Thurstoll. 469 U.S. III. 126. 105 S. Ct. 613. 624 (1985) (citatiON and internal quotations omilled). Mer a determination of willfulness is madc. an award of liquidated damllges is fYllu\dllto ry and must eljual double the amount of the actual damages to date. Front Ilay i~ not included in the amount of damages doubled for purposes of liljuidatcd damages. St'C Graoftllaill 0. Paps/ IJII/o Ribbon Co .. 870 F.2d 11 98. 1210 (7th Cir. 1989). The federal ADEA does 110t incorporate f II of the Portal· lo·Portlll Pay Act, 29 U.S.C. § 260. which provides a good faith defense to an award of liquidated damages. &e Ti'ans World Airlines, 469 U.S. at 128 n.22, However. the Ele~nth Ci rcuit hll.~ held that a consideration of the employer'S good faith will phlY a part in the Ihrl!Shold determination of willful· ness. See Gastfe tJ. SlIllgamo WestOIl. " 'C .. 837 ~:2d 1550, 1561 (II th Cir. 1988). Therefore, a good faith defense may be applicllble to stllte Age Act claim~ becau~e that defense is authorized under the federal A DI~A by vi rtue of elise Illw. D. Eqult.ble R_lIef

The federnl ADEA allO\\'s courts to "grant such ... eQuitable relief as tn.1Y be appropriate to effectuate the purposes 01 this Act. 29 U.S.C. f 626(b), Therefore. Alabama courts are empowered to issue injJnctioos against employers and to grant ordm compelling employment. reinsl<ltement. or promotion. In accordance with fede ral prttedent. Alabama courts may award front pay instead of reinstatement when reinstatement is not feasible. See Goldstein IJ. Manhall(lII Illdustries. IIIC" 758 ~:2d 1435. 1449 (1 1th Cir.) (front pay is apprupriate when "di5Cord and antagonism between the parties would render rein5tate· ment ineffective as a make-whole remedy"). cert. (1(,llk'd, <17<1 M

Statute of Limitations

B_ Th_ St.tute Will Only a_ Applied Prospectively The Alabama Age i)i5Crimination in I-:mploymenl Act does not state that it will be applied retroactively. In lhe absence of such an t)fplieit statement, Alabama cou rts will presume that the Act is to be applied only prospectively: The Judicial')' get'erally di~daitH retroactive application of laws because SllCh application usu;llly Injects undut di5harmony and chaos in the application of law to !I. given fact 5ituat1on:

therdore, the courts will generally indulse every presumption in f,lVOr of p ros~ctive application unless the legislature's Intent to lhe contrary is clellrly :md explicitly expressed. Ue u. Lee, 382 So, 2d 508, 509 (Ala, 1980), Thul,lIny alleged IIcts of discrimination that occurred prior to August I , 1997 will not present a cognizable claim,

Constitutional Issues In Opillioll of/hI! Jlls/ices, No, 102,252 Ala. 527, 41 So, 2d 775 (1980), the Alaoomll Supreme Court was lUked to Issue an advisory opinion /IS to whether a cla5sification scheme under an unemployment compensation statute Stltisfied due proceu and equal protection requirements. The court focused on the dassific,llJon under the stlltute: While the due process and equIII protection guaranties are not coterminous in their spheres of protection, equlliity of right Is fundamental in both. ~:ach (orbid~ dMs legislation IIrbitrarily di$criminatory against some and favoring other in like circumst:ances.... It is essentiallhat the clWlfication itself be reasonable and not arbitrary, and be based upon materilll and 5ubstanti/ll distinctions and differences reasonably related to the subject ma!.ter of the le"islation or considerations of policy, and that thert be uniformi ty within the dass. M., 252 Alii. at 530, 4 I So. 2d at , The courlthen deler· mined that it did nol have 5u(flcitnt information to make a determination: While good faith and knowledge of c)l.i$tin" conditions OIl lhe p.lrt of the legislature art to be presumed. yet we do not think it lO."tlllo IIwi$C '" to the validity of Ihe proposed bill upon a presumption when the bill upon Its face atll)tllrs to be discrimi· nMory. With no rt(ili\l in the proposed bill to show that the classification is reasonable and not arbitrary and no facts called to our attentlon or which we judicially know to show that the classific.llioll is re.uollllble and bJsed on a rational basis, we feel that your inquiry should ''lOt be C-iltegorically answered in reSl>onse to this request for an :advisory opinion. Id., 252 Ala. ilt 532, 41 So. 2d lit . The tlmification under the Alabama AD!::." "upon iu face appears to be discriminato· ry," M.. betausc it allows only certain individuOIls to bring claims under Ihe ~ct (i.II., those over age 40). While Congress has made find ings that age discrimination

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is an invidious form of discrimi nation that requires proteelion of a group, no reasonable Ilrgument can be made M to how the protected class 15 defined. In passing the 1974 amendments to the ADM, both the I louse a.nd Senate com· mittees expressly found that ~ ldJiscriminalion Insed on age ... can be as great an evil in our society III discrimination based on race or religion or any other characteristic which ignores a person's unique status as an individual and trealS him or her as a member of some arbitrarily.deflned group." Equul E'm" foymen! OppQrlllllily Commission v. f;froy, 674 1~2d 60 1,605 (7th Cir. 1982) (citinA STH~; P. No 93·690, 93d Cong.. 2d Sass. 55 (1974): II.R.Rep. No. 93·913, 93d Cong.. 2d Sm., reprinted in 1974 U.S. Code Cong, 0& Ad, News 2811. 2849). Ironically, in seeking to redress injuries C-ilused by age discrimination, Congress and the Ailibama legislature have crealed "some arbitrarily defl/led group." Bolh h,we arbitrarily chosen 40 years of age as the entry point for coverage under lhe Act withoul5tating any rational basis (or th1l1 decision. The Alabama legislature's failure to give some rMi ol1~1 b.lsis for allowing someone 40 years old to bring a claim under the statute, but denyinll someone 39 years old that same opportu· nity should render the statute unconstitutional. Conclusion

As the foregOing discussion reveals, practitioners would be welt advised to keep abreast of all clIses involving appliclltion and interpretation of the Alabamu ADEA. Although Alabama courls will likely look to federal ADEA precedent for guid. ance, there is no guaranlee Ihat Alablln\l! courts will read and IIpply Alabama's statute in the $lime manner. • Endnotes 1 see SA DNA UoI)Ot 1'I... ~t~ 1'Iapof*, f'tPM, 451 58 2 see 8 UNA LatlOr R1rJ~lk:1n1 ~lor. f[PM . 22 lht E(fJal e",plOymerlt ()ppoIhlno .... COrrtnINlOI\ ",,11 <HIlor eMrOl'" 01 cllIc ....... tlon 10 ." 'I'II'"oCY

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MAIlCHr Bgal"G

Your Help Needed to Pass Bills to Increase Indigent Defense Fees '1\\'0 bills hoM: been filed to increase the cOIllI'ICns.llion for ;Iltorneys: 11.11.458, sponsored by lawyc r- I cp:isl<llor~ l)enlctriull Newlon of Binningham. ,",0 Guln of Carbon J lill, Marcel H1ack of1\l5Cumbi:t, lind Mike Rogel'll of Anniston, mlli ils Sen.,le companion. S.B. 437. sponsored by Iawycr-lcp:islaloT Roger Smithtrman of Binningh:ull. This lej:lisialion will i1ccQmplish the (011 owing: I. Raise the hourly rate paid to attorneys appointed to represent indlllcnts in criminal eMe to S551ler hour in court and oul o( court: 2, Iluise Ihe nlli..~imum allowable fees 10 Ihe followinll1(.wls: a, No limit ii' capital caSd:

b. $3,500 \.I'here original char~e 15 a Class A r'c!oll)'; c. $2,500 where the original charue Is a Cla5$ B l~e l on)': d. $1.500 where the orll1:inal c1mrjlC is a Cbs! C Felony; e. $2,000 In juvcni1~ cases: f. $2,000 for each level of appellate work: and p:. 51.000 (or post conviction work. 3. Addition.ll expenses incurred by this legislation will be fu nded by a $28 increase in the filing fee.! (or crimll\lll and civil C.15es.

Please contact your local legislators today and encourage them to support H.B. 458/ S.B. 4371

POSITION AVAILABLE

Director, Alabama Lawyers' Assistance Program Description of Position: this I. a pert'llflle pos't,on reQulling 80. r.ourl per month Too pt'mary responsibilIties otthr.s poSition WIll be to implemenl, admimster and m;roage the AlabEma l8Wyeu' Asslst&nee PrOQlDm pt'O¥ld,ng etlueatlOl'l, 6dvlCe, idenllhea· tlOl'l, Int8fV8fl1l0ll, and reterralfor UICIWIIfy and support nMcllS to the Ieg<II pt'otesJiOl'l tor "lOse ia\VfOrl8nd JudOtl8tpefienclng impaillnetlts llsullll'lllirom 81cohot and drug dependency

Responsibilities: The InitlallesporlsibihllllS will be to establish the la\VfOrs' Assll!ance Progla m in coordinalion willl!tlll Lawyora fia lpitIQ lawyers Committoo of the Alabama State Bar Specifically, the losponsl· bIll tie. wlllincludt' I To help attDlIl8'lS. coIIeaguas .-d l<mtv bers identIfy (II'(! WtteMlne WIth I3wvIn rnpeQd We to ItOhoiIll OIlIer It\.Q ~IQI'IS; 2 to lUIS! rneniler. of the IeQaI proleS$IOII end thelr /emltle.1Il secure counseling and trUt· ment 800 maintaIn CUllent in/ormatIon on available resources and treatmont SllVleeS, 3 to uI8b11s~ 8m malnt~in regular liaison Wllh other agencie, and bar eommil199S which IBM HI either sources 01 r811mB1or resources in prO¥idlng help,

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5 To plan end deliver ad\lC8tlOllll programs to tllIltgal communIty 8'11:1 to law studtnu, 6. To Inform the bar, couns end flll'1Uhes eboul olcohol and dll-'iJ ~ and thD MllaMI' tv oilasources lor r9C!Mtry and the available fEllVlC1S of the Lewyer'I' As,islanee Program. 7 1o rllCrult, train and al'actively utllllil Iho 581· ~iees

018 $tatQwide n~twtlrk 01 lawyer volyn· teer lor Imorvenhon, rnoolloring, end/ol pMr lu~rt groups, 8. To Klenllly and see( QIj\ fundIng lor \lie admln ISlrat~ hpens8S 01 this PlO1Irom lor treat· ment of impaIred attorneys. 9 To establllh, lTI11Ir'I18II'IlIfId pt'0VIdtI the IlIIlIal response to a stat8WHle "hotline- 10 eSllst attorneys WIth elcoholend drll\! abuse pt'Db· lems and to Buisl coll~ and tamlly memberl, aoo 10 To mell'lt81n statistICS Ind report 10 till Board of Sar CommiSSIOo/lr' :ollCerOlIlg prO!,lram $la, tu s, hnallCialltatus, u!l lllaIion. etc, 01 tho Lawyers' Assislance PToglllm

Qualifications: At a minimum, the dlf9<:tor shou'd be ellher 8 per$Ol1 With SIlYIIS) years' expellllrcein rocoverv, or a CllI3hllOd menUllllealth pt'oleSlIQllaI WIth addICtIon treatment expeflencl Tilt dlfllCtor mull have sul1icient IItpefienceln 1181nllg 10 enable hltl'\,l1ler 10 ldenllty and WllllfllP8red ~II TI'Nt director WIll not prO¥lde CN'Isehng servICeS Salary 1$ r;<mnen$lll'8le Wlt~ 8.q)8tience

Location: The office ollhe lawyers' AssisIlI rc8 Pfogr8m WIll be located In the Slate OOt hea:lqual16rlln MOf'llQOfOOry Tho dllllClor WIll 00 rtqulrad 10 oporll!8 lhe program from Ihis 01l1C'

ApplicBtion: PleaSillubmll & rHumo WlIll ctII'8f leller to lIwyefs AssIsmllCe Proguwn AttenllQ11 Keuh Norn\iln PO 1k»1671 Monlpn8ry. At 36101

The deedline for appliCAtions Is April 10, 1998,

CLE

OPPORTUNITIES

The following ;'I-stute programs how heellappointed for efl.'eli, bylhe ,lIabama Mandalory CLE CammissiOIl. I-/OUJf!oor, {" for· marion is at-'llilable (T/,'e of charge 011 otIer 4,50() appfOf.'I.'Ii pn>gY(lms nationwide identified blllocoliolJ dole or slX!Ciaflll area. Contact/he /tICLE Commission offlce af (334) 269·1515. or J-8f)()-j54·6154, and a compfete eLf; calendar wiff b41 mailed 10 yOu.

26·27 Rejl;lonlll Se mln ~r ror Ccmrt lind

MARCH 17 Effective Eslate PI ~nnlng ((I T Ih ~ Small E, tale In Alabama Ilirmingham lioliday Inn Redmon! Nation.. 1Business Institute CLE credits: 3.0 Cost: $99 (715) 835·8525 18-20 14· National S)'mpos]um on Child Sexual Abu se Huntsville

National Childrfn's Advocacy Center Ct E credits: 15.0 Cost: $350 (2051534·6868

!'o1Jce Omdals Gulf Shores Gulf Shores Quality Inn /iolel Alabama Judicial College CLE credits: 8.0 (334) 242·0300 31.Apr1l1

APRIL 30.May 1

Regional Seminar for Court and I'olicf: OrRelll, Birmingham Birmingham Radisson Hotel Alabama Judicial College Cl.!': credits: 8.0 (:134) 242·0300

Pre\"entlng Emplo)'ft lawsuits 'JU$C.\loou Alabama Bar Institute (or CLI': CI.E credits: 13.0 (205) 348·6230

In-State Mediation Training (Approved for

ele credit and Alabama Center for Dispute Resolution ros ter reg istration)

Atte ntion Arbitrator. If you would! ke to be listed on the temporary arbitrator fOSter being developed by the Alabama Center for Dispute Resolution. please call the Center for an applicatlor : (334) 269-<l409. Aprrll6- 1S Birmingham

Medlellon Proce.. & the Skill. of Confli ci Resolution Litigation Alternatives . Inc /Troy Smith)

April 23·25

Mobile Mediation Proce.. & the Skllil of Conflict Retolutlon Lillgation AllernatlWtS. Inc .

moY Smith)

M av 23·27 M ontgomery

Divorce Medilltion

School IOf Dispute ReSOlutIOn (LemQlne Pleroo)

[800) ADR·FIRM or 18881 ADRCLE3 22 Hours

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Aprr120·22

April 24

Montgomery

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ocellt/II. ThtAlabwua Uwucr: Editor Robert Huffaker ,f at dow" (u;a telepholle) with Oinllillghalll uttorlIell KUII Wilburn. chair of thl! stutl! bor's Media Pro.J«t sub-COllllll/U{/f/. RaIx'ft alld Kall disCIIss('{/ "To SIIn.'4J the Public, .. the Alabama S(/Ite 8ar's complete public serIJIa! uidea plYSelltat/oll, as 10011 as the 1Vl radio Image amrpulgll which fH:gUIi III /(lIIuarll.

or churches and present the legal profession in a very po5iti~ way. ALlliow could JfIl!t

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KWl All o( the local bar llSSOCiation~ have oollies and the state bar has extras that can be checked oul. Contact SUSIIn Andres or mla Cray at Ihe stale bar (or in(orma· tion, Attorneys need to uti1i7,c the video when rTh;1king present~tions to the public.

The Alabama Lawyer: How did .//ou becollle ill/J{)ill(l(/ ill this /lidco project and what is the purpose of this campaign?

Kay Wilburn: J became part of the state bar's Committee on Lbwyer Public Relations became I (cit that we needed to address the public image o( the legal profession, and that, as a whole, we typically do not do lhat. Originally, I was on the Committee on Alternative Methods o( Dispute nesolution, where I fell the committee did lin exceller'll job (If te:lChirlg h1dges lind attorneys more about ADIl. including medl1ltion. TIlt ADR Committee had worked with the Public ItelatiOIl~ Committee on some medlalion spots for radio. I relt the Pit Committee cou ld enhance the leg~ 1 profession by teaching the public about ADil and other positive aspects o( lawyer public service. The year I went on lhe committee. they dedded to try somethinll: thaI had never been done, which was to creale a video. The eight-minute video covers state b:lr servicc$ such 1l.~ the l",w.'Y cr Itefcrral Service and the bar's (ree h.-gal brochure~ as well as attorney volunteerism. The video comes with 1'I J}l'I cket o( mllterill!8 that makes it very ellsy (or an allorney to take it to civic organ izations or schools 11 6 'U RC H l U90

clilssroom and help students learn ilbout citizenship. connie! resolution skills and other law-related topics. The video include~ attorneys volunteering in non-law-related areas. too. ALI Now do you plan to !Jill thl! word oul about these good Ihillgs that IIlabama allot'/l(!IIS are doillg?

KW: That's why we came up with the thi rd phase of the public relations campaign. The first phase was the video pre· sentation package. a complete tool to assist attorneys speakinll: to various ~roup5 and an easy way of informinll: the public about positive :l5pecls of the legal profession in Alabam). The second phI1$\' WIlS gClling the mMcrilll$ produced to accompany the video-a handDock o( speech points and brochures for the public. But we knew those wouldn't be enough because you can't reach everyone through public speaking engagements. In Oecember, the Media Project sub·commitlee went before the BOMd of Bar Commissioners and received approval for funding a p<lrtnership with the Alabamallro.ldc.lstcrs As~ocill.lion . Thi~ bcgM tht thi rd phllSe. ALl What willtllis partl'le~h;" /t'()d 10?

Au What :S in the video? KWI In addition to highlighting the l.<lwyer Heferral Service and other bar

program$, the free brochure$ and alternative dispute resolution. the video also cover$ the many ways Alabama Mtorneys give something back to their communities. One examl)le o( that is the state bar·a({jliated Partnership 11rogram. where attorneys and judges go into the

This is very excitingl The Alabama Broadcasters Associlltion has lin arrangement called a Non-Commercial Sustaining Announcement program, If you "partner" with the ABA, yO\1 con· tribule an initial amount and then they guarlmlce you media coverage throughoutlhe state in a specified, agreed-upon amount. We qU<llify (or <I four-to-one return on our illVcstmcnt amount during 1998. I(W:

l'roIJII(.W'MI1rrJU1W NkhtJnhQ,l. 1M} rlch.!!1 1'roI/Jlc/lQrn; KQJI WI/bllm; oM /)f. UJu,"j!t/ Hroom. dIIIir. rkparlmfml ofQCCQllnlitlg. 001 School of /Ju~II-' dlscws llul ICff/It!:J

WN 1l111uI JChoo/,

The sub-committee hlld looked al different awards and granls from Vllr!ous (usociations. including Ihe American Bar Association, to fu rther I)romote the positive mewge of Ihe video. but WII$ disappointed in U,e amounts offered. We quickly found oul that we fletded II significant amount of money in order to have an effective campaign, Once we received approval from our Board of Bar Commissioners and the Broadcasters rusocilltion to ~part ner," we began work on the three 30sccond public scrvice annOUilcements currently airing on television and radio stalions IIround the state, The U,ree spots concentrate on bar services for lhe public; attorneys volunteering in lhe public; and alternative dispute reso· lution. [ was very Impressed by the fact lhllt the legal profusion gives more volunleer hours thlln ~ny other profession, The public probably doesn't know tha\. With 30 seconds, you Cllflnot fully educate the public on each topic, but a telephone number of lhe stale b;lr is provided in case someone hM a quel'

tion. In fllel, clills are already coming in requesting brochures lind Information on mediation. AL: AllJllhing elseP

KW: The video received a 1997 t>1edll[lion Award of Merit from the Public nelations Council of Alab.'\ma. We've. also been getting cnlls (rom b;lu across the country who are interested in doing something similar. I'm proud to be part of such a proactIVe program where other state$ are looking to us, You're not goi ng to be able to change everyone's opinion but I think focusing on the positive side of the legal profes· sion i$ very important. One thing I do want to note. We made sure the spots are not easily dated $Q they won't be shelved quickly. We might tvcn do this another year because we clln use the same spots, When )IOu look at the total number or ASB members and the cost or the partnenhip, it is only /l fcw dollars per member. This is a good relurn on your bar duesl •

RECENT DECISIONS By Wilbur C. SlibenTIIIll

Bankruptcy Decisions and Amendments to Bankruptcy Rules LIIw firm entitled to ...Imbu ....•

ment tor "u,.r f ••" expen ••• nOllncluded In "overhe.d" III re l-lillsborough Nolding.' Corp.. 127 F.3d 1398.3 1 B.C.D. 917 (1 1th Cir. 1997), In this challter 11 C<tse, Ihe blink· ruptcy court denied reimbursement of several categories of expenses claimed by the attornc)'$ (or lhe chapter II debtors and the official bondholders committee as M overhead These expens· es included poslage, sccretuial charges, word processing, clerical tasks, loclIl travel exptnsu, meal!. exprus mail. messenger dell\cf)' expensts, copy charges. laundry, onice SUPlllics, type· setling. Dnd computer research chargn. The court determined thallhue M

expenses were non·compensable because they were already built into Ihe firms' hourly billing rales, The bankTuplC)' court rejected the fi rms' argu· menllo the conlrary that the charltes were "user feu" which were ;u$(!S5ed directly to the particular client (or

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....'hom the)' \'o'ere identifiably incurred and were eKcluded when the fi rms set up their hourly ratu, The firms appealed the denial of reimbursement of these expenses in the final order on thei r fee ilflplicatiolls. After lhe dist rict courl affi rmed the bankruplcy cou rt, thc firms apllcaled to the Eleventh Ci rculI. The gleventh Ci rcu it v3cl'Ited lind remanded pursuant to the pre'llmend. ment seclion 330(a)(2), The Court ini· tially noted that the bankruptcy judge abused his discretion by refusing to consider the reimbursement of the expenses without reecilling evidence app,wenl!y bec'W5e of the bankruptcy judge's belief that these categories of expenSe5 could not by their nature be: true "ellpen$tS" under pre-amendment SCction 330{a)(2). The ~:tellenth Circuit lhen noted that the legistatiyt hinory of stcllon 330 is inconsistent with a narrow reading of that Jection and empha5 i ~ed the Congressional intent to pro· mote lhe same billing practices in bankru ptcy cases as in other areas of the legal practice. The Court then noted the widespread use of "user billing" and held thilt the record did nol Sllpport the bankruptc)' court's ru tin!! which was apparently based solely upon the bank· ruptcy Judge's ptr~onll l belief lhnl lilt rtquested "txpenses' wcre "overhead". The Court first quoted III re Red Carpet, ate., 902 ~:2d .890 (11th Cir. 1990) thllt. "An abuse of discretion occurs if the judge fails to apply the proper legal standard or to follow proper procedures in making the determination, or bases an "ward \Ipon findings of (ilcl that are dearly erroneolls," 1\ then (ound that the bankruptcy juuge in an early stage of the case said he would I'IOt allow the afortmentioned expenses. As there was 110 evidel\(t taken on the question,

the court viewed the review standard to be: on the teg.,l questions only. It then reviewed various cases which n.1d cqn$id· ered the qucstions of overhead expense. and opintd 1fl.1t "if certain categories of expenses are commonty b.lled by practitioners In non.bankrulltq cases. they should not be arbitrarily excluded under 1330(3)(2)." The ~:leventh Circuit panel agreed with the Thi rd Circuit holding in III re Busy fJealJ(!r, 19 ~~3d at 848 tb.,! the best method is to rely on Ihe market, subject to court review. Circuil Court Judge Carnes (an Alabama judge) stl'()nfl' Iy dissented, statinfl thai the appellate court shmlld nol have $tCond guessed the bankruptcy judge- lh.:it the review should have concerned only whether the overall amount was foir. (tmpha.sis supplied). l ie further commented that beca.ust tht majority required the trial court to consider both compensation and expenses, the award may change little when being reconsidered, Judge Carnes said that the m.Uority opinion gives the law firms, rather than thecourl5, discretion liS to billing. CO'\'~1ENT: In its consideration of (ees and eXpC1W!S, the b.lnkruplC)' court will have much support from the dissent. In 111y opinion, this case .... ill not change Ihe law greatly except that the bankrupt. C)' court will be more apt to Insist upon testimony as to fees and expenses, and then make a re.l5Oned finding.

Amendments to Benkruptcy Rule. e"ectlve December " 1997

Variou5 amtndmtnts to the IlankruptC)' Rules were submitted to Congress in April 1997 to become e((ec· livt on December I. 1997, if not modi· fied or deleted. Changed were Rules

1010, 1019, 2002, 2007.1 , 3014, 3017, 3018, 3021. 8001,8002, 9011 , and 90 15, In addition there He now new rules lowit: 1020,3017.1. 020. and 9015. A short synopsis follows: Rule 1010. SeNlce of Involuntary I)etltlon and Summons: Petilion Commend ng Andllary Cue This amendment stems purely technical in nMure, made only to conform to changes rIl<lde in subdivisions of Bankruptcy IMe 7004 and FI~C P 4. Rule 101 9, Conwralon or Chapter II Reorganlu Uon Case, Chatlter 12 Family Farmer's Debt Adjustment Cue, or Chapler 13 Individual'. Oeb! AdjUlllment ClIe to Chapter 7 LI~uldalion ClIe When a reorgantz.ltion case is converted to chaptH 7, all claims filed before con\ltrslon 3re deemed fil ed in the chapter 7 case. Additionally, there are other amendmen~ clarifying or imprO\ling on lhe requirements in the event of convenions. Rule 1020. Eledlon to be COnlidered a Small Buaineu In a Chapter II Reorganization Cue Ally election to be considered a small busine~ must be made in writing no later than 60 days from the order for relief, Rule 2002. Nolicu to Creditors. Security lIolden, United Statea and United Statu 1'rustee Provision is made for notices to be gi~ n if the challter II tTllstee is to be elected; also requires thnt notices to creditors must contain information in the caption as mandated by uction 342(c) requirinR the name, address and tax identification of the debtor. E~ ull)'

Rule 2007. 1. Appointment of Trustee or Examiner In a Chapter II Reorganlzallon Cue This is a completely new provision added concerning (a) the motion (or appointment 0111 trustee in It chapter II case: (b) the procedures for the request of election of a trustee, mlmner of eleclion /Ir'Id notice, report of election ilnd resolution of disput&S; and (e) the approval of appointment.

Rule SO I4 . Election Under Stctlon llll(b) b)' Secured Creditor In Chapler 9 Municipality or Chapler 11 Reorganization Cue This amendment concerns time limits and procedures for election of the 111 1(b) option in chllplen 9 and II .

ter 11 plan. Subdivision (e) of the amendment refers to 28 U.S.C. 搂l58(c) dealing with appeals from interlocutory orders and decrees and al!lO the melhod of electing 10 have lhe appeal heard by the U.S. I)istricl judge rathtr th .. n the Bankruplcy Appeall'unel ("BAI''').

Rult 3017, Court Con.lderallon of Disciolure Statement In Chapter 9 Municipality and Chapler II Ueorgnnltntlon Cues Procedure for hearinAs and objections thereto on disdosure statements fi led pursuant to Rule 3016(b). This amendment was (or the purpose of giving dis路 cretion to the court liS to determining thost holden o( ucurities entitled to receive notice of disclosure statement, ballot, lind other matters related to vote solid tatlon.

NOTE: As there is no such panel in the Eleventh Circuit, this presently would be inapplicable.

Rule 30 17.1. Court ConsIderation of Dlsclosurt Statement In a Small (Jullneu Case 'fhe thrust of this new provision is in allowing the disclosure st.. tement to be conditionally approved; thus getting the cast on a fastlrack to confirmation, \Vhere small business has been elected, this rule shou ld be carefully followed, Rule 30 18, Acceptance or Rejection of Plan In a Chapter 9 MunldplllUy 01 1\ Chapter II Heorganlu tlon Cue This llIncndmcnl allows the Caliri dL cretion In setting a bar dill e for id e nti~ ing record holders of securi(iu entitlel to vote. Rule 3021 , I)]slrlbuUon Under I'III~ This is another amendment after COl firmat ion allowing (I) the court discrc lion in determining the record date of the holding of iI claim by (m equity security holder in order lhat distribu路 tion be handled properly: (2) equal treatment 10 holders of debt security 11$ that of other creditors by requiring allowance of Iheir cl~ims: and (3) mandating distribution to interest holders whou interests ha\lt not been disal-

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nule 800 I. ~Iann er or Taking Appeal; Voluntary Olsmllllal This amendment allows appelll from an order eitiler increasing or decreasing the exclusivity period (or filing a chap-

Rule 8002(c) . Time for Filing NotIce of Appeal Tht amendment to subsection (c) sets out the exceptions to Ihe dhcrcllon of the bankruptcy judge In w~nding the time for apPtal in a manner different from the oristinal wording of tilis rule. It stales that the request must be by written motion, .. nd sets oullhe time limits of the extension, 10-wi120 da)15 from the eltpiration of the orillinaltime prescribed by the Rule, or in lhe event of txcusable neglect, len days (rom the date o( the order granting the motion.

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R... le 8020. Damlgu and COlli ror FrI"olo .... Appal This is a new rule providing lhat If the district court 01 the BAP in considering an appeal from an order, judgment, or decree of a bankruptcy judge, Delieves the appeal to be frivolous, "it" may, nner II sep..'lrately filed motion or nolite from the district courl or BA I~ and nfter rca· sonnble opporltlnil)1 to be Iward, ILwttrd damage COSt5 to the appellee.

does not apply to 1\ petition, (Apparently, this means "petition In bankruptcy".) This rule was rewritten to confi rm generally to Rule 11, and thus is not in the form of the prior Bankruptcy Rule 9011. Generally speaking. the m~t notable chllnge from thllt of the pruent mcl' 11 is thllt the withdrllwing of II petition in INInkruptcy will not rel ieve the atlorney of exposure to sanctions,

COMMEN'n This rule leaYf:S some· thing 10 be desired. Is the 'it" the bank· ruptcy judge or is ~it" the district judge. or IlAl'. Also who file! the motion, the opposing altolTlf')' or the court?

R... le 9015, Jury 1'rIal. This i~ a new rule (the prior 9015 was abrOlt<lted in 1987). It llpplies FRCP 38,39.47-51. and 81(c), exceptthM /I JUT)' demlll"ld ul'lder FRCP 38(b) 15 filed pursuant to Bankruptcy Ilule 5005, If a bankruptcy judge is designated to con· duct the juT)' trial, the p..lrties may con· sent to the bankruptcy judge by filing consent, jointly or sepa rately, under the time limits imposed by the local rules.

R... le 90 II . Signin g or Pipe": to the Court: Sanction,; Veriflcatlont and Coplu of Paf)l!l'II This rule was nmended in order to conform it to ch.mlles madl: in 1993 to Rule II of PltCP, wilh the excelltion that the portion of Rule 11 disallowing 5anctions if the p:!rticulllr paper in question Is withdrawn or corrected, Rep~ae ntatl olU

Rule 9035. Apptbbllit)' of Ru tu in Judicial Oltlrlclt In Alabama and North Clfolinil

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Th i~ rule states tml th( oonkruptcy rules apply to these t....,o s~les only as Ilot inconsistent with any federal statute relating to b.lnkruptcy administration.

U.S. Supreme Court overrule. Eleventh Circuit .nd po •• lbly Sanator Heflin on Interpret.tlon of enabling lo.n ellceptlon, Section S47(c)(3)1B) Fidefl,y finllncllll Sen'ices. Inc. IJ. Fink, U,S. Sup, Ct. No. 96. 1370,

Souter, J., Jan. 13, 1998. The debtor galle a purchase money security inler· est to Fidelity on a new car. Under t'olissouri law. the lender was allowed 30 days to perfect. Fidelity Il"IIIlIed the application 2 J days after delillery. The trustee claimed II preference, Fidelity contendl:d that complillnce with stOlte law re§uited in the perfection on the d!ly of creation. All the lower courts ruled in f/lllor of the trustee. The U.S. Supreme Court affirmed. Bankruptcy Code Section 547(c)(3)(8) prOllides that a truslee may oot allQld a transfer "(3) thai creates a security inluest il'l property acquired by the debtor-"(B) that is perfected on or before 20 days lifter the debtor receives pouusion of such properly." The Supreme Court htld thlll state law fI1U~t be complied wit h, and that the b;lIlkru ptcy .section not on ly applies but controls. A colloquy in 1994 Delon.'Cen Senator Henin Ind Senator Sauer was referenced in which ~'ide l it)' had contended that both senators thought that in increasing Ihe time period from ten to 20 days. the state Nrelation·back" statutes were being made consistent with fedtrallaw. Not so, 5.'Iid Justice Souter. He sllid thai the st.1temcnts of the $enalors were at odds with thc gOllcrning text. and with stalutory hislory of the preference prOlli. sions. The opinion in footnote two referred to the opinion in the t;leventh Circuit case of In re 8usmlehtrer, 918 F.2d 928, 930·93 1, as a contrary holding. Thus, there is little doubt thai such case was beinA OIIerruled. COL \IMENT: The end result is thai if there ilre different "'relation·back" periods in the stllte and fedemllaw, the set,;ured pllrty must perfect within the shorter period. •

DISCIPLINARY N OTICE

Notlc. e Jene Eldridge 11011. whose whereabouts :ire unknown. mus! answer the Ala.bama Sliite Bar's (orm31disciplinary challtes within 28 daY$- of "larch 15. 1998 OT, thereafter, the charges contained therein shall be deemed admilled and appropriate discipline shall be imposed against him In ASB Nos. 92-505, 92·530. 93·22, 93-<122 and 94·20 before Ihe DiSCiplinary Boud of the Alabama State IJar. Reinstatement. • By order of the Alabamll Supreme Court Jamtl Curti.. Utmard was reinstated to the active practice of law on October 14 , 1997. Bernard was disbarred on March 9,1992 fo r a pt!riod of fIVe years. iPeL No. 97·031 • f:ffect ive December 11, 1997. Dothan attorney Charlet Bruce Adams hu been rdnsla ted to the Alabama. Slale Bar. On September 29, 1997. he had been suspended from the practice of law in the State of Alabama fo r noncompliance with the M,lrldlltOry Continuin ll l.C:llal l~ducalion Rul u. (CLE 97·011 Susp.nslons • Birmingham attorney Stephen Willi. Guthrie was suspended from the practice of law fOr a period of 45 days by order of the Alab.lma Supreme Court effective August 26. \997. Cuthries' suspension Wil5 Ole result of his having entered a pica of guilty in the Circuit Court of Jefferson County to the: possession of a controlled substance_ (Rule 22(<1), Pet. No. 97-051 •

~:ffect ive December 4. 1997, Pel ham attorney Will iam FellJl Mathews has betn suspended from the practice of law in the State of AJIlbilm8 for noncomplillnce with the

t.landatory Continuing l..ega! Education Ilules of the Alab.lma State Bnr. (CLE 97-101 Public Reprlm.nds

• On December 5, 1997, Birmingham lawyer Hobert ~l c Klm Norris received a public reprimand without genernl publica. tion for vioillting Rules 8. 1(a) lind 8.4(a) lind (II). Alabama nules of Profeuional Conduct This discipline ....as imposed by Panel I of the DISCiplinary Boord of the Alabama State nar after finding Norris guilty of making false stlltements and misrepresenting his participation in a maUer under investigation to an investigator of the Birmingham Bar Association Crievllnce Committee. IL should be noted that Ule d l~ciplinilry proceedings conducted before the Disciplinary Board were in conjunction wilh Norris' petition for reinstatement to Ihe practice of law in Alabama. The petition for reinstatement was denied. IASB No. 92-191

• On December 5, 1997, BeS-'emer lawyer Tommy Eugene Thcker received public reprimands without gener~1 publiC2ltion in ASIl NO$. 96-235. 96-244, 96-247, 96-267 lind 97-134. This di$Ciplinc is based upon 1\J(ker's guilty pleas in the foregoing cases for willfully neglecting legal matters entrusted to him IRuie 1.3. Alilb.lm~ l~uJes of Professional Conduct 1andlor railing to respond to rcason~ble requests for information from 3 ciient IRulel.4 . A.R.I'.C. I andlor fHili ng to tnkt r~il50nilble steps to protect a client's interest upon termination of representation. including faitil1jJ to return client's files andlor fail inll to refund to clienl$ any uneilrned portions of retainer fees (Continued Ofl (XI9C 124)

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Disciplinary Notice (COrltinued (tOm page 123)

Letter to the Editor

!Rule Ll6(a).A.R.1'.C.l: engaging in conduct involving misrepresentation IRuie 8.4(c). A.HoP.C.1 and (or enlla"ing in conduct prejudicial 10 the administration of justice. It should be noted that in additit)n to the imposition of these public reprimand~. 'lUcker received a 91.day suspension from the practice of law. the imposition of which was ~ u$pend e d pending l\Jc ker'~ succeuful completion of a two year-period of proballon. !ASB Nos. 96.235. 96-244, 96-247. 96-267 lind 97- 1341 • Selma ilttorney Uruce Ca n~r Boynton received a public reprimand without gtneral public.lllon on December 5. 1997. Boynton rcpruented two different individuals 011 criminal chllrge~ after hl~ rellresentalion was concluded both of these client '~ requested copies of their file including their tran· scripts. Howe·ltr. Boynton failed or refusoo 10 respond to these requests. Thereafter. both individuals fil ed complaints against Uoynton with the Alabama State Bar. Boynton fai led or refused to respond to requests (or infOrT11<ltion (rom the (lmce of general counsel or to otherwise cooperate in the investigation of these two complaints. IASB No. 96-358 (A) and 97-008(AJJ • Birmingham Mtorney Edward Eugel1e May recei~d a public reprimand without general publication on December 5. 1997. May represented Mr. and Nrs. Herbert Williams in connection with two rei!1 estate closinM. When queslion~ aro$e with regard to title insurance and termite bond on the property the Williams' attempted rc[)tatedly to contliet Nlly to rC$(Ilve these problems but he cons i ~ten Uy fail ed or refused to return the Williams' telephone c"l1 ~ or otherwise communicate with

This is a letter of apology under the directive of the AlablUna State Bar Association fo r my conduct in fail inJ! to timely file state income tax return5. I have recently pled guilty to fOu r counts of failing Lo timely nle stllte income lax returns and hllve been $entenced to probatioll. community $ervice and (jnes. I h/lve also agreed to have this leUer published in The ;llt/bamll ul/vyer and 10 comply with Olherdi rectives of the Disciplinary Commission. I rellret the publicity and emba rra$..~mcnt this I","IS c;IlL~d the A!ab.iL ITIlI St.lte B"r Association and to members of our profession. I urge /Ill olher members to the Alabmna Slate Bar Associlltion to comply with all tax laws and regulations and to cooper.lte with the Disciplin.ll)' Commission of the Alalxlma State B.lr Association. - John L. Sims H:u1selle, Alabama

them regarding their concerns. Thereafter, the WiUiams' filed a complaint against May with the Alabama Stale Bar and May failed or refused to respond to the complaint or otherwise cooperate with the bar in its in~sligation of the Willi,lm$' complaint.1ASB No. 96-056(A)1 •

Take a moment now to check your address on any mailing label from the Alabama State Bar.

Is it correct? If it isn't, you have until April 1st, 1998

to change it and still get it in the '98 directory. 1 24 M AR C H 1008

President's Page (Contil/ucd from page ?J)

Professional Economics &: Technology-l53 Real Property, Probate & TrU5t Law-3 14 ThXllti(ln- 24 1

Workers' Compensation- 268 Young LawytfS'-3,7 15 These sections provide II valuable ser· vice to their members in terms o( semi· nars, newsletters, b rllin~torming and fellowship, In IIddilion to tht bar's practice sec· tions, there are 38 bar committees and tnsk forces, This yeilr we had over 700 IIIW)'i!rs who volunteered (or 1I11pC!intmenl to little more than 200 vacant slots. 'J'ht.\t committees and toclt forces might be cate· ~orized in (our art.'I!i (figure II , IXlge 71): (I) public service; (2) focus on the profes. sion; and (3) bench and barlbar ITIo'Inagement and governance. I will highlight a (~specific bar pro· grams which might be of p.1rticular interest: (I) Alabama Law FoundatlonI~ece ives Interest income (rom tht trust accounts of participating lawyers. In the past ten years, it hilS made grants of

o\"er $7,000,000 to IIIw-relattd projeclS. (2l Volunteer Lawytr8' !'rognunProvides pro bono legal services to the poor in civil, non.fee.generating mill· lers. lind is now P'lrticullirly important in light of the decreasfd funding of Legal Services. (3) AJternl!.tlv~ I)lspule Ilesolutlon Cenler- fo1 eets the growing need to promote ADR and mediation training. (4) lA~r Referral Servl Founded il'l 1978 to assist the public in finding legal reprcsentntion, (5) lAw Ornee Management Au l. tanee Program- Provides practice management assistance (such as com· puter ~onware , accounting lind file management) 10 ~Ios and small firms. We haw hirtd lin IItlorney, Laura A. Ca llo~'ay (who hM $everal years' experi. ence practicing il'l II smll1 nrm). to coordinate this culling.edJ{e program. (6) IAw·Related Edua lion l'rogl'llmProvides an opportunity for local bars and school systems to jointly sponsor and implement programs to I)ut lawyers and law-rel,tted materials in lhe cla.~room. (7) Public Relatlon.- The board of bar commissiOl'lers hil! appropriated $50.000 for television and radio spots that begal) J:lI1l1al)' 30 on the 30 major

television 5\111101l5 lind 100 radio stMions IIcr055 the slate, as a part of (In agree· ment with the AJabllma I3r()ldcasters Association, under which the broadcasl· ers will match each "p;tld" spot with at least (our free spots. (8) Website (U.'IIJfII.a/Cloor.org)- PulJl the Alabam1 St."\le Bar online. (9) Publkalion, - lncJude the bi-monthly mllQ/lzlne, The Alabama l.awller, and in alternate months, the ADDENDUM, an eight-p;tge newsletter. ( 10) Member Services- Include AT&T SIlvings services, group Insurance, malprllctic~ insurance, Airoome ~:xp ress discounts, and many others. (1 J) "To S~ rvll Ihe I'ubllc"- (A barsponsored video available to loclIl bar$, civic clubs and schools) Highlights the ways allorneys seM the public lind focuscs attention on the principles underlying the Lawyers' Creed, If the Alabama Slate Bar i$ indeed an "ant hill," then it's an exceedingly busy one. We realize, hOW'l:Vi!r, that wt cannot adequately represent or scrve our diverse membtrship if we're not awart of Ollr membtrs' professional needs and con· cerns. Cor\SequentJy, we continue to request and wtlcome the sUlll!estion~ and re<:ommendations of our members. •

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""' .~ "'~ 0. CLASSIFIED .

NOTICES

Rates: Members: Two free listings of 50 words or less per bar member per calendar year EXCEPT lor ·posltlon wanted" or ' position offered" U511OO5-$35 per Insertion of 50 words or less, 5.50 per additional word;

Nonmembers: $35 per Inserlion 01 50 word s or less, $.50 per addiUonal word. Classilled copy and payment must be received according 10 the lollowlng publishing schedule: March '98 Issu&-deadllne January 15, 1998; May '98 IS8u&-deadline March 15, 1998. No deadline e~ l en slo n s will be made. Send cla ssified copy and payment, payable to The Alabame L.Bwyer, to: Alabama Lawyer Classlfleds, c/o Rita Gray. P.O. Box 4156, Montgomery, Alabama 36101 .

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Forensic Documenl Examiners. Criminal and c:fyll matters. Carney" Hammond Forensic Oocum6f1t LaboralOfy, 4078 Biltmore Woods Courl. Buford (Atlanta) Georgia 30519. Phone (770) 6t4-444O, Fax (170) 27t-4357. lEGAL RESEARCH AND WRITING: Research and writing services. includ· Ing briefs, trial memoranda, and other documents. Prompt deadline service. Experienced researcher and wri ter, l icensed Alabama attorney and mam· bar of the Alabama Slate Bar since 1979. K8therine S. Weed, P.O. Boll 590104, Birmingham, Alabama 35259. Phone (205) S4 \01 496. No r&pr8Sfll/la· lion Is mode /flat 1M qult/iry of Ihe /e(J81 servlC6s 10 be perlormtJd Is {JrtH.l ter than Ifro ((Ulility of logSI S6" vices perform9(J by olher lawyers. INSURANCE EXPERT WITNESS: Douglas F. Miller, Employel1' RIs!< " Intural'lCe Managemanl,lnd&pendent risk manager. F8ft basls onty, Ollpert witness, Eighteen years' ln risk man· agement Insurance consulting, policy analysis, assistance to your corporate Clients, Member SAMC, Experiance In daductibles, selllll$urance, excess, undaflylng coverage. Call ,·205·967· t 166, Birmingham, Alabama or WATS 1·800·462·5602. SKIP TRACING·lOCATOR: Need 10 tlnd someone? Will locate the pArson or no minimum lea for basic search. 87% S1JCCOSS rate. Nationwide. Confidential. Other atlorney needed aearches, raports, records In many areas Irom our e)(\enslve dotabase,

Tall us what you fltHId, Verily USA. CII.lI 101l·frea(888) 2·VERIFY. DOCUMENT EXAMINER: Ellsmlnation of quesUol"Ied documents. Certified toren8ic handwriting and d0cument allaminer. Thirty years' 8llperl· ence 11'1 aJllorenslc dorumenl prob· lams. Formerly, Chief Questioned Document Analyst, USA Criminal Investigation Laborfl torles. Diplomate (cer!llled)·ABFDE. Member: ASODE; IAt, SAFOE: NACCl, Resume and lee schadtJle upon raquest Hans Mayer Gldian, 218 Merrymont Drive, Augusta, Georgia 30907. Phone (706) 660·4267. DOCUMENT EXAMINER : Certi!led Forensic Documenl Examlnar. Chlel document $xaminer. Alabama Department 01 Foransle SCIences. retired. American Board 01 Forensic Document Examlnal1, American Academy of Forensic Sciences, American Society 01Ouestlol"led Dacumenl E ~ am ln$rs. OV$r 20 years' axporlence In state and federal court s In Alabama, lamar MlIIar, t I 42() N. Kendall Drive, Suite 2QS·A, Miami. Florida 33 t 76, In Birmingham, phone (205) 988·4 158, In MlaTlI, phone (305) 274·4469. Fax; (305) 596·26t 8. HANDWRITING EXPERT/FORENSIC DOCUMENT EXAMINER: ABFDE car· tilled; past president, South$astern Assoclallon of Forensic Documant E~amlners : American Academy 01 Forensic Sci$nC8S fellow. Fedafal courl qu<ililied. Nineteen years' e~perl· $nce. Civil and criminal. Handwriting

comparison, fof~ry delectlon, deteclion 01 allered medical records and othel documents. L. Kellh Nelson, Slone Mountain, Geelgla. Phone (770) 879-7224, EXPERT WITNESS: ProfeS$lonal engineer and 9t1orney with 8 praclice 01 e_perllestlmony In conslructlon, SCI/ely, highway and slrlJC1ural design. Thirty·flve yean' experience In high· way, railroad, commercial buildings and power plant construction. Call or write for resume, lees: Lamar T. Hawkins, Medical FOl"Um &Jlldlng. 950 22"" Street, NOfth, Suite 632. Birmingham, Alabama 35203. Phone (205) 458·8485. No representa tion Is msd6 fha/1M quality of /htltflglJ/ ser· Wc6S /0 fH perlDtmed Is gf8lJt8f than lhe quality of legal services performMJ by other lawyers. TOXICOLOGIST: Chemicaiioxicologist, 25 years' experience In industry, government and unlvef$lty research and teaching, Sampling and expert Witness, OUt, prodl.Jct liability, ·cheml· cal poisoning; SOT and ACT member,

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Thomasville ROlld, Tllllahassee, Florida 32303. Phone (904) 385·8000: (904) 222-1930: laK (904 ) 56'; ,6080, COUNSELING: Carey BemeI1 McRae. J.D., M.S.. CCA, I&wyer, menial heahh counselOr. and domestic re:aUons med!. (lIar, offers counseling servi::es tor adults exper\encing depreSSIon. an_lely, IIress, voca1lonal1ssoes, grief ar'oCI relationship COOClefns, Cttrufied oounsGlor aS80Ciale of Judi1h Harrington, Ph.O.. LPC, in Birmingham. Weekend, &YQfIlng awoIntmen.. 9Yilil<able. Phone (20SJ 930·9006. No rept9SIJfIlBlion Is made /hilt the qusity 01 the 199B/ seMoos 10 IH p6rlom1f1d

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