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:11"",11<1 Slephens Bradley Arant I~ Oi!e & White Huntsville, Alahamu

TheAlabama 0" til. Ctn'tr SUI/rlu (In Clrr 110/1, N()'ltflOfflf''J' Opened In September 1937, the folontllomery

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on the $ite of an urHer one which burned In 1932. Frank I.ockwood,

notd Montgomery architrct, designed this classically inspired municipal building at the corner of North Ptrry and r.\onrot ! Ireets. - /VIOIO by Paul Crawford, JD. CW

IN THIS ISS UE LAWYEIlS MOVING r 1lO,.1 ON~: LAw I~IIIM TO ANOTHERWHAT AnE TilE £TltlCAl PROIlIJ:MS INVOLVED IN CIIANGING LAw r IRMS? ..•

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ALTEHNAT1VES To UTI GATING Y2K DISI'\TTES , •• ".,', •. " ..••••••.•

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Sm)UIJ) Tills CASt: BEM I>f.Al.t:O? . , ...•..••......... • .•...•.....

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Sfo:X OtUNDER I~WSTRATION AND NOTIFICATION: THE CONSTIrorroN VS. PUULlC SAFI:.TI • • •••• • • • •• , •• , • • •• , ..... , , • 112

WrTN~ $TATl-:MENTS ••. , •• , •• , .••• , , •.•.........•.•.. .. ..... J 19

STATt: BAR NM-lt;S NEW f\-1CLE AND V1..P DIRECTORS

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ALABAMA STATE BAR

ONLINE Whnt's New...

- Publ ic::ttions - O n. Line Community - OOC Opinions - CLE Ca lendar - O n. Line C hrmge o( Address

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112

ICII',IInlN'd!ton, I~ 15/

DEPARTMENTS

Presidenl.'s I)age

P",bllShod IOYOI'I tlmel e yoar (tho JUl'lol..",o II a bar dl rooiOfY odltlOll) by Iha Alabama StaiD Bar, P.O. BolC 4 t (l(l, MQI'I toomery, Alnboma 3(1101 · 4 I~, PhoI1o (334) 269· 15 15 ' www.alabar.org flab&rl A. I1 Li1laker ............ ....... .. .. .. ......... .................... " .. ,.... " ... ""..... "... ,.......,,,.CIlJlt (I. EOitot &INn ShIroQ< o.P8OI&, " .. " .. " ......... "......... .. .............. Va-Cm.~ a AMociala EdUor O.vId 8, C~mplln ."... ." ....." ....,...... ".. . ... . ,Ya-CIlaj,. Finenctl SuNn '" AM,.I " .... ,............. ".. ".. ....... S"'N lillitor'> to Commun!ealk)nl Ohtc1Dr '-Y'Va,,' L Mu,phy ....... " ........ " ........... " .. ".""" ... " .. "", .. """".,,",,.,,,, ... ,," ...... SIIIIIIJI,III)n" Man-oong EdllOl nill M. Gray " ... ""..... ................. .. .................. ................ .............. . ' ....... "... ..Advorlltling BOIIr~ or Editor. L..Indn G, Flippo. ~rmlnQllf.m ' HQI'I P~ m ... W 6fteIIIt>. MOr'I100mtry . OI!rYl(l 8. CI\&rrIs)IIn, 611~1'I\ . Eugenll "'. Mulin • • Birmr'lgt1am · SIIm...1A. Rumor., Jr., Burningham ' J, TImollYy $mIlh. 6JrmItIQII.m . ROt>t11 S. Smllh. Hunllvil" · I3IoNI J. McF'tlerlon. Monlgorr\eli" W~I J. ctlambN". Dlrmlnglllun ' G~ G. COCht6n. 8Irrnlng~m . M. Donald O.~ Jr.. MQ/.lIIt . Yk:lor1~ J. F"""IIn.~, 8W'rnlnghem ' Willem G. Ginn. 9Irrniflgtlllm ' HQI'I, Ott>/I GOkIeltin, Sumlr'lQllam • l)'llde l. I-O&rodrl~, 'rry ..vllkt · Mk:haol A. KI' ~IIlld . Monlg<lmlry • M1fOa'" l<ulllnzyn. llJ'mifIIII'IIm • Allin T, ROIIfII, SlrlftH>Dham ' M81i/1e¥o' "" 'fflOa, 9rtmlngllam ' M WIIfl'I~. Mo"llgDmOry Olllc.r. View 11. lo", JI.. ~ .. .. , PrMidtnl WaOl M Sa..,., Doll1an .. P~I" 'tc1 O. vId R. Boyd. Monlgorr«)' ..... .. .. ,.............. ... .. ".,.,..... Va·jllelidanl l(eh~ 0, Norma". MDrIigDlTlflli' .............. .. ".Secretary

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98 Legislative Wrap·Up 105

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PRESIDENT'S PAGE By Vic /.,011

Dober! A. Huffaker, (!llilor of Thl!

.II Alaball/Q Lowlier , mel rL'1:I!/JII.1J

with AlabulI/a Sia/e Bur Preside/ll Vic /,.nil 10 (/;SCU.H lilt>. first half of his term- Ihe chunges he's brought aboul. file {Ioofs yel to reach 011(/ the overall f/tm(1ral heallh of t!/C ASf).

Robert A. Huffaker: Vic, )'Qu're

halfway through you r tenure as Ihe bar president. What has been the theme, or the fOC<ll point. of yo ur administration? Vic Lott: Having been on the BOl'I.rd

of Bar Commissioners (or nine years, and then h~ving served a reliTas presj路 dent路elect, I've had the opportunity to see how the Ooard of Bar Commissioners and the committees of the s\,l\e bar actually (unction. One o( the Ihin.lls that I w,mted to lIddnm wa~ the lldmillistrative ~lruClure of the ~tatt Ihlr. RAH: How did you do th,lt?

Consolidating and Communicating

VL: I went back to ou r statutory mission and I tried to take a look at the Ilrograms, the comm ittees and task (orces that were in place. \\lhall (ound was that there was really no rhyme or reason for the existence of a lot of the committees and the task (orces which were sllPposl:d to be shvrt-tl:rm Mforts. and had, in many cases, dragged on for years. Some of the commitlees and task forces really wcren t functioning and yet our staff has to appoint and re-appoint members each year with the help of the new bar president. try 10 encou rage those commitlen 10 (unction, and arrange for meetings and so forth, That was taking a lot of lime and effort by our staff that really wasn't D roducin~ anything, RAH: Did you elimin<"Jte some of those committees?

Vic LoU

VL: Yes, I don't remember Ihe exacl numbers, but we had about 45 committees and task fo rces and [ reduced it to aboul25, Some of thl:m we eliminilted

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altogether and some of them we combined, I'll give you an example, There was a perm~nenl code commission on the I~ules of f>ro(ession~ 1 nesponsibilily, there was J committee on advertising ~nd $olicitation, and thcre was a tll~k force on lawyer dl5dpline. r combined Ulllhrcc of th()$~ into one cOnunittce, We took the peoplc \\'ho had been most <"Jclivl! (rom those thrce committees and rolled them all jllio one committee, giving them the task of reviewing the Rules of Disciplillllry Enforcement and the Hules of Professional Responsibility on an on.going bJsis, They're coming back to lhe oo..1rd al l e~s\ annuilily wilh a reporl on mQdificatiOI15 th~t may or mJY not be neccssary. I think that's a good eXlimple of what Il~cded to be dOlle to bring some beller focus to our conlmi ttce structure. I think the bar has two primary (linelions: One is rcj:luJatory, and that indude~ disciplinary functions, b.1r admissions and t>1CLE, arld the other missiOIl is programs. [ tried to align our committees and our task forces along Ihose two principal axis SI) thai each program has a staff liJi50n person at the bar and II committee that functi ons like a board for that staff person. That's made our progrJms morc efficient. 1t'5 enabled us to get Ollr arms around exactly whnt it

is we are trying to accomplish in the state oor thro(lgh our committees and our programs and to bring that back into align. Illent with our mission, which again 15 regulatory IlIld program·oriented. RAH:

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REAL ESTATE SETILEMENT SYSTEM

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appointed any ta s~ forces? VL: Acouple. Olle is a

Jufivtl Fronlr II. f.JJrlil. 01 Ifill ilfll/N111II1 C()(Jr1 of erim/lIu1 Am-u. and l'k Loilulu n«'fIfll _I"" oI lM 7UsIr F()l'CI orr 1,11rfI·&mdr and Bur

task (orce. on long. range Communlcullatu financial plilnning for the bar, We've h.'Wl such good fortune in the past decade with our finances th.,t I think we've been lulled inlo /I malaise just i!.uuming tho,t ....>e·re all..'ays going to have plenty of money, bulthilt Will not UlC! case as recently as the mid-·SOs. There were times, llhink. when Jim North Wll$ presidel'lt. thilt the bar couldn't afford to pay for Jim to go to tlw Natiolllli Confercnce of Bar Presidents, I-Ie hold to pay his own way. Thai w;u nolthal long ago. or course, we have increased dues, and Reggie Hamner and K~ilh Nonnan have done a superb job in n\llnaging our finances. so now I'>'e're in very good $hllpe. In (act, the last six to eight yt:.rs wc'w actually had a small surplus. We al50 treated Ihe Alab..1ma Stille Bar fo'oundation which owns our state b..,r building and le:ue5 Ihal facility to Ihe bar for a fllir market rent. We've been able to payoff Ule debt on that facility and the result is that the bar 11.15 a healthy financial situation right now, and the bar foundation does as well. But .....e'rt starting to see pressure on the bar's finances. I don't think it's going to be too much lon"er before v,'e're going to h:ive to make $Ome decisions ag.lin about dues Increascs or puhaps dccre:uing the rent l)Did by the bar to the foundation. I appointed a LllSk force U\llt I~ick Manley is heading and they arc focusing on long. range finances, which I think is an enormousl)' important e«ort. I think Rick is the perfect person (or the job, 100. RAH: What was the other task force that you appointed' VL: Ont o( the things that Oag nowe focused on during his term, and that r

was very much irlllgreement with. was the need to do a better job in c()mmunieating with the specialty bars ant] sections in Alabama.

RAH: \\IhM do you mean b), specialty bars and sections?

VL: The Defense La\\)ICrs Association,

the Alabm11.1 Trilll Lawym Auociation. the Oi~lricl Attorneys Aoociation, Ihe AI.,b/lma 1~,wyc r5 Assocbtion. the Criminal Defen~ 1.awy(.'1'5 Association. We now have II Womcn Lawyers Section. An of those sectiQll! a.nd specialty bars are very active on a substantive level but as a mandalory bar, I feellikt we am do a lot to encourage communication among those various speciality b.lrs and 10 make sure lhat they all understand what role the state bolt is supposed to play and what role we cannot play. Being a unified bar, under the Keller decision. we can't take positions that are pro or con to various elements of our membership, We would be endarlgcring our pOSition under the KelIL", decision. That is for the specialty bars to do. If the Trilll Lawyers Association wants 10 advocate a l)Drtlcullir piece of legislation that they think benefits their constiluency, they can do it, We can't. Bul we can be II fonlm for discussion purposes 10 Iry to facilitate the resolution o( differern:e$ among our lawyers and among the various specialty bar and sections. 1 Ilppoinlcd a task fOrce chaired by Greg Breedlove, who is lhe currenlllresident of the Aillbama 1'ri31 Lawyers Association. We included rcprC$(!nlAlM:$ from every other specialty bar and some of Ihe largtr and older sectiOl1$ 3rld Lhty'vt Intt several Umes. They are trying to (ocus on things like inviting several of the rcpresentatives of the specialty bars to /III 0( our Board of Bar Commissioners meetings just so they can see what we do, We are also coordinatins our ,mn(l<ll meetirlgs 50 thllt we

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(Continued 011 pagil80) MAIICH ,'''",,.

RAH: WIlli! other contact hM lht bar had with lhe supreme court?

President', Page (Continued from page 79)

VL: We've had two or thret meetings

ers from all over the country. We are continually on the front li ne of issues.

We just receivtd a major national award (or some of Ihe video prcsentalions that we h.we m.'\de and used in marketing and in efforts to try to improve lilt image of Ihe lawye rs in our slate. Sewral

with the court 5inc:t lhen. These were vcry frank discu5s;cn5 about the pendenb"u. Last year lhe Trial ~rs cy of rule chanses, lind about discipliA$S(ICialion "',d their own $tlninMs at our Tlary Issues thaI the courl had already. other state bars are copying that effort annual ml'tting in Gulf Shores, which looked at and decided. We are requesting now. That's just an el<ample of how our was very succt~ful. It helped increase the wl11e rule changet. on various front!. The state bar is COining up with innOVative participation level at our annual meeting. chie( Justice is very concerned about proways 10 address issucs that are not jusl 1 think there arc hot issues like arbitra路 fessionalism and we are talking aboul our issues bul iuues being every orgation and tort reform where the lawyers in some joint efforts to improve professionnited bar. We're not having the problems the state have different opinions and dif路 alism in Alabama. We are also talking that a lot of other bars have had. ferenl obje<:live5. many of which ~re ~dvoabout some rather major inues 1I1.1t btar California doesn't even hlve a bar now. cated by the specialty bars. I think th.11'S on our profession. II's p.uticularly heartWe have studied what Ihey did over the where the state b.u c.,n playa role of ening to me, not only btcau~ the court past dec.lde to make sure we don't do it. encouraging di5C\lssion and fllCilitating KCIlIS to be very interested in CM,mulliWe really have a great and ~pericnced :lOme harmony and some direction for U,e eating with the bar, but also because in staff. U's one that does a 5uperior job on benefit of Ihe profenion without a<!vocalthe states Ihlll have the most effective iIo very dficient basis. We have not lei our ing one position (fJer the other. That's judicial systenu, nuny of the major 51aff at tht stll!e h<!r get bloaled. I<tlth what I'm hopir~ is going to come out of effort! directed at benefiting our profesNorman does a great.iob in controlling that wk foret. sion ilnd the public are partnerships flnnncu nnd keeping his staff small and " "I",'n Ih' """'" '-""" ~~ 路rt and the bar. ' I . III,'II 'k "'" ..... ~.A I-v I VI "' '"Po RAH; When will thai task force ren....... ef".IClen "" d"I' ~" -1',. d,'",II-" ",. der i t ~ final rcport? .. . . in which I would like port an d rea II, m-" " ,'nlerestln the state 10 see us move, Ilhink it's a direction in bllr by the rank Ilnd file members lhan VL: This spring. which the court is wil ling to move. We I've &ten in 15 or 20 years. That's .. result RAH: Share with ou r readers the arc sending them a lot of informal ion liS of efforts by Keith and the leadership of state of Ihe communidltion between the a malter of routine about Wholl the Board the b.,r ()\.'er the past de~de inslitulinlt -v"'" f n " , C-mn,;ssioners is doing, and d II1,I ..... __ --,nin,f\l1 to our bar and our appellnte courts. v pro"rams ",.; . aboull'l:ltiOI'lll1 iMutS thatl'lll\'e been members. like the l.aw ()(flce VL; We h:lu re'.sooably good conUl)Ubrought Into focus at meetings of the to1<lnagcment Assistal\C.e Program th<lt's nic:llion with lhe AlnOOma Supreme National Conference of Bar Presidents reilchin!! out to 5111all firms and sole Court alleast back to the point in 1986 or and the Southern Conference 01 ~r practitioncrs to help them with tecill)Ql'S7 when 1beame a bar commissioner. President!. We are trying to heighten OIlY and other issues. Ilhillk we're doing Most of that communiwtion was through their recognition 0( issues facing the a really good job. I think we have a lot of our Supreme Court Lilli50n Commil~ee. profession. IThlny of which the court positive inforl1)31iOll to ttll the supreme which was a small group that mel With wants to be involved in. I think that's court when we make our State of the Illlr the court a couple of times a )IC"r for a been a very $uccessflll effort anU 10 cap il address in June. brief meeting ..,out particutar issues. off I've been invited to speak 10 the court However, there were a variety of issues in June with'" SL\tt of the llar :addrtM. RAH; Vou mentioned e:arlier U"lt that raiSl-otJ the Ire of the court and the bar one of the functions of the bar is discialike, Communications bet",'een the two RAH: How would you ch~racter;ze pline. I think we all know that Ihere are broke down in about 1994 and we really lhe state of the bar) layperwns who are participating. now h<lve not met ....ith tht court since tllen. VL: i\lab.1ma. I think. is the second on the disciplinary panels. How IS that until this summer. I think Chief Justlce oldest unified bar in the country. We've working? Hooper was vel)' instrumental ii' encourpropounded the original Code of VL; I think it's working Vl;!ry well. /15 lilting that communication and i.u reo. I>rol'mional Responsibility and Alabama [ultieip.lIed, those 111ypeople are rClIlly institution. Wt had a good meetmg With contimJcs 10 be thought of as ont of the Illore conseMtive than the lawyers. the court in July, very much assisted by best functioning unified bars in the They're more proteclive rJ the lawyers Dave lloyd and M~rk White, who I nation. And I say that not only because than the lawyers sitting on Ihe panels. appointed as my s\lpreme court liaison. I'm proud of whnt we're doing nnd know That was certainly the experience in other The chief justice appointed Justice Champ th<ll we have a good staff and good leadstates. ThaI's surprising to outsiders when I.yons as the liaison to the bar, which we mhip. but because 1have heard that you tell them Ih'l\. I think it ilOC5 to show were delighted wilh, not only \)eCl'luSC he comment m:uly times from r'Illlional and that 1I.'e have an open system. We have a is a person..l friend of mine but al~ . regional bar leadtrs at the National system th.,t is not a good old boy s~tem. because we felt like that .....as lin Indlcatlon Conference of ~r Presidents and Ilstlll llc(-ds somc fjlle tuning and we are IhM the court was serious about their Southern Conference of B.1r Presidents looking lit it all the time. In faet Ihe commitment to re-!nstitule meaningful and at vllrious AUAmeetinl{5 of bar leadCommittee on Lawy;!r Di5(;ipline has communication with the, :"':'~';;:;:=:;::=,..-________________ ______________

include more ~tivities by those spcci.,lty

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We also encouraged the creation of vari· ous pro bono e(foru by the local ban. Alab'IIT1a Llwyers have contributed mil· lions of dollars worth of their time to this effort. After a decade of fighting this, 1 think we've accomplished il lot, We have one of the highe.stlevels of pro bono par· tidp<ltion IImong our Imvyers of any stille in the nation. But. we also hm'(! one of Ihe highutlevels of indigtnts of any state in the nalion. We've jusl comlllis.slo!led an uptLlte of that survey to se« whOlt impact .....e've had on this problem but .....e're faced with a tremendous challenge. RAH: \vilat is thls challenge?

rn,lde ,I Po,rtial report this year Ulat rec· 6mmends tiltht or ten fai rly significant rule ch.:mgt'J-but it i5 also lookinlt at wllat would be some pretty major changes in the disciplinary panels. They haven't reported ~t 50 J don't want t6 say wh.,t I think lhey might do but am6ng Ule alter· n.~tives they are considering is adding an administrative Ibw judge who ....,outd sit as the chbirmlln 'Of all the panels t6 lend .some consistency lind lake some of the administrative burden off of the panels. They're looking at reducing lhe number of JIo",(!is from five to three, We don't Ulink that would significantly increase the worklOlld of the three remaining panels but. again. it ....,ouid be 1IO effort to lend some consistency to the ....,ork and the oulcome of some of the disciplinary hc.lr· ings. We're looking lit creating an inLer· mediate appellate bOOy that would be availilble to review allY decision of n dli\d· plin.lry panel before it went to the $vpreme court for the limited purpose 'Of ensurinQ: that the outcome was consistent with discipline metC1l out in similOir cases to other lawyen in the state, None 0( UlOSt may end up INlppening. It may be fell that they are not necessary or we may have some combination. I think Ihe meso sage is that we are always looking al way$ to fine tune our system and ensure con· sistency, We feel like we hllve it 111 a lower lwei of the disciplinary system through the Disciplillilry Commission beCi!use it rt'Vilows every complOlint and it's a single

body that looks at every single llricvance filed i!l Ihe sate. BuL /lb(ne it, the more serious disciplinary matlus are IN'Indlt'll by five different disciplintry panels and .....e .....ant to make sure thaI "e are achieving the highest level 0( consistency po$5ible 011 tIN,t level, 100. RAH: What Uisks still lie nhead fo r the next few months?

VL: We're continuin!l sotlle of our adminislrative efforts-thm:'s an evalua· tion of 1111 of our ptogra!)\!$ that's under· .....ay to mIIke sure that th~ arc function · ing as 'O riginally intended by the board. We'll be continuing our nleetings with Ihe supreme court, We're anticipating receiving some recommendations for some pretty significant changes in the b.lr admission and Ihe b.lr examination procc55u in AIOll).llThl. I'll be conlinuing my efforts to br in~ 50me focus 10 what I Ulink is a m<\.ior iss\le filCtnlt our profes. sion and our slate which is "acccss to jus· tice." We have a couple of committees that have been in plllCe and workin« on thaI issue for over a decade tIN'II resulted from a MlJ"\.'t)' thill"'t' i!lltinted back in 1989 to pinpoint the number of indigents in Ihe State of Alab.ulkl "he were not able to acCeM our legal system. Tllllt .!Iur· vey indicated that Ihere were over 720,000 people in the Slate of Alabama who were not involved in our system. As a result of thai, we crcOIIed our Volunteer I..w.,),crs 1'l'Ogrll!1\ at the li(lltc b.'r It'Vt.!l.

VL: Our two primary sources of (und· ing f6r pro bono efforts In Alalama are 10LTA funds which go to the AI,1b.1ma lAW POundalion, bul which arc threat· tned by Ihe TcXII~ litigation th,,1 I know everyone is aW3re 0(, and l.egal Scrvice5 Corporation funding, which was main· tained after a Krious fight ag.~in this ~ar in Conllre55 but is severely threalened in lhe near fu lure. £very indiclltion is that the mechanism for distributing Legal Services funding is going to be changed to a matching system b.ued on slate and local funding. We get no stale o'llld IOCll! funding in AI~bama. The State of Alabama contributes nothing and none of our locllillovernmenis con· tribute anything. So, we could lose both of our major sources of funding (or pro bono efforts within the next couple of yeal'$ and IIlat is going to create /I tremendous crisis in this slate if that INlppens. We've hilcJ a 101 0( m«etings and discussions with the supreme cou rt about this too. They are very amcemed aboul it. At their sUflSll:stion. we're look· ing Inlo somc grants Ihrou~h the J)ep:trtmenl of JU$tice thai might help us coordinllle some resolution of Ihue issues. I visited with Ihe editorilll boards of the major nCW$papers in Birmingh~rn , f'olontgomery and f'olobile and Ihey feel like it is a very note.....orthy IMue. We·ve received some good pre55 in the form of editorials in those newspapers, Ifs an educational procm and it's one Ihal 1 know my successor Wade llaxley is also \'Cry concerned about. I think t's one thilt the btlr lind Ihe court arc going to have to really pul some efforl into trying to resolve. to tlk1ke sure that everybody in the State of Alab;ulllI hilS IIcce~s to ovr leg.11 system. • "'ARC H . . . . . . .

EXECUTIVE DIRECTOR'S REPORT /Jv Keith 8. Norman

he principal components of our sys· tem of justice arc the bench (federal and state) and the IhJr. Although we are 11.11 members of the legal profession, the bench and the bar serve two distinct purposes which are ..,itallo Ihe justice system's mission. We are the stewards of the jllslice system, ensuring that the system works fairly imd Impartlally.

Good Bench And Bar Relations Strengthen Our Judicial System

MARCH I DDU

The old Nlying th"t. a chain is no

stronger than its wl'lIkesl link Is apt when referring to the role of 111W)'t1"$ and judges in the judicilll !ystem. The legal profes. sion has received more than illl share 0( opprobrium leading to II not·$O·favorable public perception of lawyers. Although this Is not entirely new for the legal profession, the recent degree and sharpness 0( attacks QI1 our stale and feder.. 1courts appe", to me to be unpreudenU:d. Our judicial $)'Stem requi res a strong legal profession and judiciary to function prop. erl),. Without th~$e two strong linksjud"~s and lawyers---our democratic form of government loses the irn]>oriant bal· ance of ~ strong lelPi system. One way of strengthening the judicial system is not nece.ssarily to (orge new links, but rathe r to fortify the existing bonds between the bench and the bar. One grO\lp working hard to do this is the Alab..lmi'l St..lte B.lr Committee on Bench and Bar Helations. f h i5 cOrlltllillee has done much 10 improve channels of com· munic.ltion between judges and lawyers at all lewis. The committee is ably chaired by Ann MtMnhiin. Birmingham. and Justice tlugh Maddox, r-10nt!IQmery. who servu as vice·chalr. Other judges serving on this committee are: retired Circuit Judge Joe Colquitt . Tuscaloosa; 0I8trict Judge Aubrey f'ord. Tuskegee:; District Judge Pew Givhan. Montgomery; retired Circuit Judge Wlililim Gordon. r-tol1tgomery: Circuit Judge Steve Haddock. Decatur; retired Court of Civil AllPCIIls Judge Richard

tlolmu . r.lont"omcry; former Chief JU8t1ee Sonny Horn ~ by. Thlhmee; Circuit Judj(e William JlIcHon. Birmingham; Clrwlt Judge Robert Kendall, "1obile: retired Circuil Judge Gay Lake. TuscalOO5ll; Circuit Judgt 1.o)'d UttJe. 1-luntsvil1e; Circuit Judge Edward ~tcDe mlOtI , ,.1obile: Cln:uil Judlle nen ~lcLa uchlln . Oz.1rk: U. S. Unnkruptcy Judgt T:ulIl\ra Mllch ~ lI , Ilirmin"h<lm; Circuit Judge Samuel Monk, Anniston; MunlclPIII Judge Carnella CNtne Nonnan, l3irmingh.lm: U. S. Oi.lrict Court Judlle 4'nwood Smith. Huntsville: lind U. S. ~lagia ll1l le Judge \Vllllarll Sletle, "lobile. The IIIW)'CT members include: Michael AlchllOll, Birminghl1ll1: Muo n Davi8, Bi rmi nghnm: Annesley DeCans, Birmingham: I I~ nr)' Frohsln. Birmingh:!m; 4mn l-tare. Birminghilm; 'l'rfp lIu lon, Birmingham: Viclor IIlY1l1p, 8irmingham; Chris lIume. Mobile: Frank James, I\irminglum: Jeue Keller. Florenc~; I' hlllip Laird. Jasper; William l.awn!nce. 'I';,lIadega; Suprerlle Court l.ibr:.rian 'nnl i.tlfis. MOlltgomet')': Jim Lloyd. Birmingham; U. S. Attorney Redding Pilt. HO[lIg<lmery; Larld n Ibdney, Alex Cit)': William Roedder. ,.1obile; Ken Schuppert. Decatur; Lany Slm8, Mobile: Kathryn Sumrall, Birmingham; Rebecca Thal. l-luntsville; Cleo Thomu , Anniston; ~nd Joe Whalley, Birminghnm. A most recent example of the e~cel· lent work of this committee wal its par· ticipation in planning th t bench and bar component of lht Circuit and District Judgu' Midwinter Conference this pasl January. The committee hilS planned this segment of the judges' midwinter conference for several years working with the staff 0( the Alabama Judicial College headed by Callie Dietz. ~'or the first time this )'far, however. federal judges attended this .segmenl of the meeting with their date judicial

colleagues and bar members, Judge Taman Mitchell deserves much credit in encouraging the inclusion and p.u tlcipdtion of federal judges in this important gatheril'ljJ, Iloth Chief JUl lice PerT)' Hooper and Chief Judge JOleph W. lIatchell of Ihe gleventh Circuit Court o( I\ppeals ~re enthusiutic sup· porters from the sldrt and attended the meeting, Only by meeting and dis· cussing issues that are common to us all. can we hope to h.1ve any chance o( re5Qlving them. This conference provid· ed a perfect opportunity (or Ihe bench and bar to develop a dialogue that can lead to a mutual strengthening of our profession lind our Judicial system. With public lrusland confidence in our judicial system at a low ebb. j udge~ and law),ers must act. f.1uch of the public's disaffection stems (rom a lack of understanding aboul the operntion of the jUdicial system, Lawyers and judges must share Ihe resl>DllsibHity of helping to educ.1te the public. Al the S<lme time, the bt:nch ,Ind the b.1r must cooperate in getting our own house in order. In Ihis regard, I am h.:tppy to report lhat

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Judge Ibrold Albl'llton. chid judge of the U.S. District Court for the Middle District of Alabama and fonner state bar president. and Jud.lle t'l lyron ThomplOll and Judge In Det'llent have adopted slim· u.'rd.$ (If civilit)' tnal wf:r~ dtvCIO(>I:d through the h.:trd ....,ork ,md vision of Carol Ann Smith, Birmingham. and Crt, BreedIO\'C. ~lobile. The compilation of these standards of civility was initiated by the Alabama Defense Lawyers Association and the Alabama Thial LaW)'eTS

Association to emphasize to their memo bers and lawyers In general the need ror civililY In dealing with other counsel and Ihe court, These standards ;u'ld their adoption by the Middle District represent a milutone effort to restore some of the Imter tn.lt our profe$5ion has lost over the last few decades. It also re~ecb. J think, a new cooperative spirit bet....-een lhe bench and the bar that wi.1hclpthe bench and bar tackle other issues tllat are vital 10 the justice system, •

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Judicial Award of Merit Nominations Due Tho Board of Bar Commissioners of tho Al abama Slale Bar will rccllive nominations for tho statl! bar's Judicial Award of Mllri! through March 15, 1999, Nominations should bo prepared Bnd moiled to: Keith B. Norman, Socretftry Board of Bar Commissioners

Alabama Slate Bllr P.O. Box 671 Montgomory, Al361Dl The Judicial Award of Merit was established in 1981. The 1998 recipient was United Sl ates Dlstrlct Court Judge Ira DeMont. The BWHd Is not necessarily ftn annual award. II

mllS\

be prllsen1lld to II ludge who is not rallred, whether state or federal

coun, Irial or oppellolll, who Is dlltllrminlld \0 have contributed slgniflcantlv 10 tt,o administration of lustice In Alabama. The reCipient is proSQnted wah 8 crys tlll gavltl bltsring thlt stste bar sesl and the year of presenllllion. Nominations ara considered by

a thrl'le路member committeII' appointed by the president 01the stete bar, which tiler! makes e

rl'lcommltndatiOr! to thlt boerd of bar commissionltrs with respect to a flOminee or whethar Iha award should be presontod In ony given year. NominatOJi$ should include II detllill3d biogrllphical profile of tho nominoo lind a narrative outlining the significBnt ~ontribution(s) the nominelt has mode 10 the adminlstrlllion of justice. Nominations may bo supported with leuers of endorsement.

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BAR BRIEFS

• The Lee County Oar Auociation recent·

ly recognized reliring DI.trlct

AllomC)l Ronald L. ~lyen , H)'er5 has served as district attorney (Of I.ee

Count)' since 1971 lie retired in January. Al the Honold MII"I'$, righi, l'IICo'ltUIl f.Vfllflrul~ of 1'I.'fO(J' December meeting "'I/()IIAmI/LIlA ~~II ~ IV. PWrcw. of lhe I.ee County Bar Auociation, 1>1)'e1$ was recoilnized for his oullitanding work as diSlrict attorney and his c()ntriblJtions to I.ee County.

The Cllrter award honors (ormer gav· ernrmmt orficials and serves as a helicon of liilht (or current Orfidllls, IIccording to Wilkerson. Judge Coley WIIS born June 17, 1902 and served liS Thllllpoosa County prob.1te jtldge from

Judgct Coil!l) u-'lduu.', A'w/VI' M. Co/I'll, uccvtll$ 1l1li /lUvl'd (roll! Mark WiikllrJorl, hcitlrNitl/l hI1r mill huslN11Id.

1946101960, He died on December 16. 1997 lind is survived by his wife and two children. Jack Colt)' and Evelyn Coley Puckett. •

• The Alabama State Bar I~ood Show spoke to lhe l.awrence COUllI)' Ihr AuoclaUon in

December. The (ree CLE program fea -

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1/Vo,MfI SIIIII

I~"

•

lured a presentation by Judy

Keegan. director of the Alabama Center (or Dispute He50lution, enti-

krof'M ~~ un;1 )mf6KWfIII.,

1.oo_~Co.mI6 ull~.

tled "(\1cdi8Iion

and Arbitration in Ahlbama: An Update SU$.l l1 Andres, ASB di rector of communications, was available to answer (IIleSlions about other stilte Ixlr programs. To schedule n similar CU; prescntillion, call the communlciltlons department ilt the ASB, III (334) 269- 1515, ext. 132,

• All'! public certmony held December 11 at lhe Thllapoo$.!l County CourthOuse, the lale Judge CJ . Coley, (ormer Tallapoosa County probOlle judlle. was honored as the recipient o(lhe 199 Eugene W. Carter r.1edallion Award. The award is Itiven to former offidl'll s who havt distinltuished themselves in public service. The a\\'ard \\'115 presented to Judl;e oley's widow, Evelyn r.1cCord Coley. in a ceremony Ihlll was atlended by friends and colleagues of Judge Coley's. Mark Wllkerl on, chairman of the state bar's A(hniniSlrative Law Section, and I<eith Normiln, ASB executive director, spoke on behalr of the slate bar and the Kction,

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M EMORIALS

Emily Bad! Gassenheimer hcreu, Emily Bad! Gasscnheimer, W " highly beloved lind respected member of the fol ontgomel')' Counly Bar

AsJocialion, departed this li(e on Aprit 28, 1998 at the age of 73 years; and \Vhereas, The Nontllomery County Bar Association desires to honor her ""me and recognize her many contributions to th e lelllli

pro{e~~ lon,

her mllny civic

.md religious accompli$hmcnts, and enrichment of the arts in the City of

t-lofltgomcl')' and Slate of Alabllllla;

Now. lherdore. be il remembered thai Emily Bad! Cassenhe imer ~':u born on April 26, 1925 in ,.lounl Pleas.lnl. TexilS, lived hcr early years in Shrl'Vcport , Louisiana. and then called Montgomery her home (or more thbll 50 years, She had just celebrated her 50th wedding annivers.1I')' to Irvin Gassenheimer, Jr" a prominent t-10ntgomel')' businessman. Emily honed her skills early a5 governor of Louisiana Cirl'5 Slate and a5 valedictorian of Ne\\.'C()mb College, Thlnne Univtr5ily where 5he IIraduated with a Il A. degree in 19<1 6. l-Ier educational experience also included a fellowship at the University of Chicallo, study of clinic.ll psychology 111 UCLA and coursl'!5 at Ihe Tulane School of Social Work . Emily enrolled at Jones School of Law in 1958 and (or the next 15 years she studied at a leisurely pace while raising her three daughters, attending classes one night a week in the converted downtown residence then occupied by Jones. She spent SO long there she announced to Reginald T. /lamne r. fo rmer executive director of the Alabama State Bar and dear friend and colleague. that she was "retiring from Jones" when she received her Juris Doctor degree. In fact. her attendance at Jones WIIS Ule 5ubject of a New York Times article

written by Ray Jenkins. local stringu for the paper. Emily'5 extensivt civic hwolvel'rltnt in the :ma o( mCrllal health lind jUlJ!nl1e justice, including 24 years o( seNice on the boord of directors of the t-lontgomel')' Mental Health AssociatiOn, inspired her seNice in a legal context lipon graduation from Jones. She was Mlrnitted to the Alabama State Bar in 197.4. Consistent with the cause of mental health she. hltd ch.lmpioned (or dec.atks, she was appointed by now United StllIes Court of Apptal~ Judge t'rank M. Johnson, Jr. lead atlor~y and guardian ad litem for Bryce H o~pi tlll lmd Veterans Administration patlen[j in the landmark L1W5uit of l.Ul/ch II. IJaxlou to improve lhe standards for Ule mentlllly III and mentally retarded residing at these institutions. Then Emily became em1)JO)'(!d by lhe newl)'-founded 1.eg.11Services Corporation in Alabama in 1977. She became its first managing attomey of the )101'1tgomtry Regional office. There \\'Cr~ some resistant to this idea in the legal community ~ re but, when they leal'ru!d Emily Gassenheimer's name was IltlJched to this endeaV()r, doors opened. She was also project director orIhe Juvenile Justice Judicial Project. a federal probation offi cer and she published a leg.ll praclice m.lnu.11

- -Q - governing IHW~ and procedures in juvenile courl s),stems in AI~b.'mii. Emily CauenheimH was born and married Into rilmll ~5 committed to Judaism and made those v.. lues her own. She had a long-standing involvement with Temple Beth Or in folonlgomery and served the last two years of her life as its lirst woman presidmt. ~:mil )' eased back (rom her legal inyolvement aner a few years and resumed her lifetime interest in art, lak· ing welding lit John I)allerson Trade School lind 5ludyin~ sculpture at Auburn Univenily ttl t>10nlgomery. One of her sculplUres, "Sail & Ught," is on display al lhe entrance of AUf'I's School of Nursing. Emily WilS a very innuenlial artisl ..nd leader in the Montgomery arts community. serving as II boord member of lhe Montgomery Museum of Fine Arts, and as president of the t-lontgomery Art Cuild. She was a life-long patron of the IIrI.$ as well as an artist herself. devoting u nn ll~lnll e nergie~ to painting, ceramic and metal 5(:ulplure. Posthumously. she was the subject of two art shows which had been planned befotC hcr demi$e. 11\ a gallery in MontgOTl'.ery and at the Center for Cultural Arts in Gad.5den, Alabama. Her award·winning art is in more than a ~en public and private collections, In addition to her numerous involve· ment in the civic and art communities, she was also co·founder. secretary and treasurer of 1~ l cc lronic Engineers, Inc. of Alabama with her husband, Irvin. Whereas. Mrs, Ga.~~c nheime T is SIlT· vivcd by her husband. Irvin Gassenheimer. Jr.. of Morltgomery; her three tbughters, fobry T. Beller of Napa, California. Ann Cwenheimer of 1'-lontgomery and Emily Friedlander of Costa Rica; her brother. Joe lot Badt of Shreveport. l.ouisana: and her four grandchildren, Erin e mily Beller, lolegan Emily Gallagher. ISldora Amelia Friedlander and Hilrrison 1i ~'r iedJa n de r. Now. Therefore. be it resolved by the Montgomery County Bar Association thai we pay speci111tribute to the life of

Emily B. Ganenheimer, a woman of v3 10r, and mourn her pa~~inQ, Iler com· mltment to service. her love of f3mil y and fri ends. her belief In causes good and just, her colorful character. and her complete and lotal u lnessneu arc "rully admired by many, many people. - Teny Urown. SecretaryfJ'reuurer Montgomery Cou nty Uar AuoclaUon Prepared by Nicki Ueth Stiller, Montgomery

Frank J. Tipler, Jr.

tup uf{ the clocks, cut off the t(l/eI)ho",~. Pr(!I}f!/lllhe dog (rOIll

barking with a juicy bone, Silence the pianos and with /IIumeli drum Bring out the coffin, let tile mounlllts CO/rH!. lAIt aeroplanes circle mooning OlXIrhwd Scribbling on the sky the message fle !s /kat!. l>ut crepe bows round the wllile necks ofvublic doves. /.e! the trome policeman wear black cottOIl gIOl~. Nt IL'(lS my North. mil So/llh, mil East alld We#, My working IIJ('C~: alJ(/ m1l Sunday rest, M.lllloon, mylllkl· night. my ttI!k, my song: , thoughl that he would losl (O/'{'lJf!r; I was wr(mg. Thl! sla rs are 1101 wanled mUll: put out clX!ry

IJack liP thlJ maorI am/ dismanl/e 0C(!(111 and SllIIIep up the I~'()()(I: fo'or /lolhing /lOW can elX!r coml! 10 011/1 good.• - w.1f. Audl!/I Olll!;

Ihl! S/lII; Pour away the

When my father died this put 'A'Ctkend, even though wt had expected his death for some time. it ""35 ur\expt(ted. It wM unexpected becatUe of his smnAth. MlIny of you know that he has fouQht cancer for the lnst ten years, defying all odds and defealing all predictiOns. So when he was t<lken to the hospita lthis lhlst week, I did /lO1 believe he would die. '-lis wife, K.,therine. told me tmt she thought it was his lime: hb doctor, Heid Kerr, told me lhat he did /lOt believe my father would II'lake il. but I believed that he would. During this past W(!(!k at tilt 1\0$. pital . he rallied. he seemed to be getling better. He wO!tched "Judge JudyMOrl televi· sion with my wife, Usa, who \'isiled with him in the afternoons so that Katherine could have some relief from her constant vi"il at his side. Dr. Kerr called me Th\U'St!.l Ymorning to tell me of his dra· malic lind unexpt(:ted imprcmment. Then. Friday night. his blood pressure dropped. When I wtnt over Saturday morning, I held his hand as he slept. bul he did not wake up. Katherine spent the early afternoon combing his hair lind holdinll his hand. Then. at 2:» that after· noon. he stopped breathing, quietly arid painlcssly in his sleep, and he ",'as gone. The poem lhllli just read by W. H. fl uden is how I fe ll, how I know his wife. Katherine, felt , and how it seems to me Ihe whole world must have surely felt about my father's passing. How do you sum up his extraord inary life? My (ather was born almost 82 )/tars allo and IIrew up in tht small town o( Sheffield in North Alabama. His parents ""ere Crace and Frank Tipler. He had two brothers. Jack and George, and a younger sister, Doris. His fathe r was a railroad conductor, and his mother ran the $Cliool cafeteria, He loved his time as a child, and he loved his parents lind lu nC H , ....., . .

- - - - -( (amily. His roots in North Alabama were very important to him. One Of his oldest

and best (ri~ n ds from up there. Howell Heflin. servc~ a.~ 1m honorary pallbearer today. li e was, not ~urprisillg l y. one of the smartest kids in his class, and he went to the University of Alnbamn at the

age of 15. He received his law degree there at the ag( of 20 and became a member of the Alabama State lJar at lhilllime. His best friend. when he was growin" up, was a m~n named James Harvey JohnS(lIl. rot )' r~ l he r graduilled from Jaw school in 1939, and he and his bC$l friend, HMVCy, wei'll off IQ WilT. Harvey did not return from the war. A

pilot in the Ai r Force. he was miSSing in action. f-ly (alh~ r served in the Pacific

Theatre and was on the staff of Admiral Bull Halsey, HEwas a lieutenant commander. When [ was in college and the Vietnam War was being debated. he told me now il was different it W~5 in Wortd War II, Ihat military service was nOI only an obligation but an honor because of the: differcnt kind of war thal was bdng fough t. [lis lime in the service WIlS Ol\e of the best thlltS of his life. Years ago, I took my father on a trip back to the Pacific. and he showed mc the places where he hlld served in the Navy- New Zealand. New Caledonia. Fiji, the New Hebrides. It was a special two weeks (or him and fo r me, and I learned fi rsthand how im]lOrt;lI1t his time in the service was to my f(ltner (lnd how proud he was of il. Before he went off to war, my fathe r I'r'IMried my mother. After his retu rn, he: ,md my mother had Iwo 50ns. Prank Jennings Tipler. m. and me. My fllther was a terrific dad, and he was devoted 10 his family. When J W3S growing up. although [ knew that he was a lawyer and that he had an office. I never had the sense that he ever worked. Any time I would call him <lnd <15k him to play catch with me or do anything I w,mted. he wouhl come immedintely. Ollce. [ understand. he was in a trial. and he told the judge that he had to leave early nn MAn e" "un

because my Little Leallue game was startinl:!. He WM mnrried to my mother for 40 yean. They rabed two ~(ln~ and ~cn t u~ to college lind grndunte ~chool. During thai time. his law practice blossomed. The monlh I was born In 1951. he received a judgment for the then unheard-of amount of $60,000. This was. in those days. an enormow sum of money, ano it put him and his law practice on a differenllevel. '!'he trial lawyers among U5, especiall}'lhose from my fal hcr'$ gcne:ration. will awee with me th.1t the image of Irial lawyers 1'l.1~ hcen wQr~e in the p<1~1 thMI it i~ 110\.... lUld it hOll been better in the llalt than it is now. It will continue 10 change. But my falhe r. along with his long-time friend and law partner, Syd Fuller. and legendllry lawyers like l'loweli Hemn. lhllnan Hobbs, Careth Lindsey. and many olhers, helped to carve out in Ihe State of Alabama a place of respect for triili lawyers th~1 exisls to this day. His fellow lawyers chose him as the only plnintiffs lilwycr in A I ~b.1mOlI('l be included in the fir~t edition of Tbe Best J..a\\ycrs In America. I [e was vcry I)roud of U'Illl. He was also proud to have been selected to The American College of Tl'ial Lawyers and to The [nternlitional Academy of Trial Lawyers. He was very proud 10 have been selected in J964 as the president of the Aillbama Stale liar. He really did receive every honor he could have received as a lawyer. I knOW Ihal his (lbiliti\1s were revered and respected by his clients and by the Ilublk, but it was the res~cl with which he wa~ held by other memb~ rs of thc bar, by members of the defense bar as well as the plaintiffs bnr, and by members of the judiciary statewlde.lhat he vaillcd the most. He was the kind of lawyer who was able to command the respect nol only of those I"wyers customarily on his side of the bar, bUl also from !.hose 011 the other $ide. He did Ihi$ by integrity. and by alwa~ keepil\g hi5 word. It) 198.1, my (ather asked me to come back home from my law practice in California and take over the fi rm. It took

him about a year of talking. but I came b.~ck. He told me thai th~ real rl:lI$('Ill J should come bnck W,LS nel for the money or for the sucCH5. but because he hlld things 10 teach me. and remember at that time. he was 66 years old. and he said, "I don't ll.we that much time left to teach you. and you need to come b..1ck while I'm still able." Not many people know this, but [ told him th,lt I WQlJI~ come back to learn from him. but that J wouldn't stay more than two years. F'iftcen yearslaler, I'm still here, and he did have much to tench me. l,.1~1 week. the day he WII$ laken to the hosplta1. J wns silting with him in the living room of his house where he was sleeping. When he awoke to find me there. he said. "Hey. boy.l was just catching a wish." r asked him what he was wIshIng fo r. and he said. "I was just thinking how we could push those two C"~f;:s." Alw~ys the plaintirrs I<lwyer. I assured him that I would push the cases for him. llnd he w~nt back to sleep. This I'lst J~athcr'~ Day, I was walching "The Today Show" llnd Lh~y had interview~ with several youllg chlldrClllibout their (alhers. When a five.year-old boy was asked why he loved his father. he said, "My fillher is the kind of man who can fix whatever problem you have." I called my father that morning and told him the slory because, as I told him. that was Ihe kind of father he was to me, He told me he nppreci,lted me $aying that. and that he loved me. When J visited with Klltherlnc within ~n hour after h i ~ death, she Mid almost the Ml)IC W(lrd$to me. that my (aUler always seemed to be able to solve whatever kind of problem you had. that he always knew the right thing to do to fix it. He loved his dogs. He loved all animals and particularly th<lse dogslhal were his const<lnl comp;rnions during the Inter YC,Irs of hi$ life. lie abo loved pondering the possible outcomes of footblll! gall1es with gOI)lt wcl! -ChOg~ ll friends. although [ '1'1'1 nol sure what he Illeant by "pOint spreads." He loved his

grandchildren, Allison, Caroline, and Jemison. He loved the law. lind he loved his law firm. My fllther was loyal to hi5 friends. I think it is tutimony to my father's character that he r~ally only had two secretaries In his entire SO-),,!ar career. Understand that he had other Kcretaries after the callCer had ()V(:rtaken him during the last decade of his career, and they were very good to hin" but the two women who really worked with him durin" his st rong )'eHrS 115 lll<iwyer were Evelyn f.1i1ler 'md, of course, l\atherine, who became his wiie. My father told me that Evelyn Miller, when she started to work for him, did not know how to type. It W:l$ just he and her in the office. she taught herself to type, and he paid her to basically stlly in the office when he talked to l)Cople around town. SO there would be someone there if /I elient came in. She. of course, became a very accomplished legal secretary. and her son, Tony, will be one of my father's pallbearers today. I tried to think of what things I will miss most about my (ather. and it is iml>ossibie to summarize in II (ew minutes a life of 82 years. much less the 40some-odd years that I have known and been close to him. Alabama football pmes when I was II kid, wilh his good friend, lIed Clark. When I was older. he and my mother coming up to Ville to watch me play. A siory he used to read f..'Vcry Christmas si nce my brother and I were lillie, and in l~ter years 10 the Slll(f of his law firm, clllied Ilow Come Chri~tm:u. He could tell a story-to a jury,to his family, <It to friends-and find humor in a situation. like no one cise. Once, when [ WIIS a leenager. we were watching the movie "Camelot" on tell'Vi· sion, and the song "1'low to Handle II Woman~ c,lme on, If you don't know it, the song goes into the comlliexities of women, 8nd concludes that the only way to h.mdle a woman 15 to love her, si mply lind purely, After this beautiful. romantic song, he turned to me and $aid. "I don't

think iI's (Iuite that simple." He never did tell me the rtst of hi5 secret. I would like to talk about my falher's religion. Thert hilS been .some talk, and I hopt that Reverend Faircloth mentions this during his remarks. that my father was converted to Christilll1it)' recently. ,.ly fathe r l'I'as a Christian his tnlire life. Hany of you may not know thllt at the "ge of ten, he waSll prellcher in the Church of Christ. When my brother. Frank. and I were growing up, he was a Sunday School teacher. When my brother lIpent the summer after his junior year in high ~chQOI at Harv••rd and Clime bllck with QunliOlls aboul Cod, my father debated wilh him through the night. Recently his strong religious faith was renewed, and he spoke to me about the imporlllnce of his granddaughter. Jemison, being part of a churchgoing family, lind we agreed as II family that thai would be lrue. My brolher's most recent book. The Physks of /mmorlall/y, Is full of malhe· mntics ~nd phy~ic~ thai neither I nor most of us can understand. but It 15, at its cssence. about God. My br(llhcr was comforted by this after my fllther's death when he told me. "Ilarvey, I believt in the Iheory of my book.~ I went to hear my brother spe.'lk about his book soon after it was published, "nd I would like to quote (rom what he 5llid to that audience in Allanta. f.1y brother Solid. "I am here to tell you thllt God eX/5t5, that lie loves each ~ n d every one of us, and that lit the end of time we will all be togtthtr asain." f.ly (alher believed that. too, and SO allhough the depth of lou expressed in the poem by W. tI. Audm is very real, I would like to think that my father is looking down on us today, listening, and that he would want each o( us not to be $ad about his pa5sing, I think he would have liked Ihese words written by another poet: "1)0 nol stand III my ,,'r(UJ(1l1I1fIIL'(.~I). I lim nollhere; I (/0 nOI sleep. I am a

thol/sand w/rlds Ihat blow. I am the (/i(llam IhlJ .~lIlIlighl 011 ripelled gf(lill. I (tt11 tl1l1 fli!l1lle ul//l/mll rain. IVh,", you awake illlhll momillgs hush l am Ihe swift IIpflillg. illg rllsh 01 qlliel birds ill circling flight. I am Ihe son slar-shlrl(! at mght. Do not slolld al mg gral!(! alld cry. I alii ,wi Ihere; / did 1101 die. • mOIl(/ glillfs 011 SIIOW.

...AIIOtIgmou.~

-James lIar...ey Tipler, A nd D lu ~ l a

James Gilbert Speake Gilbert Speake of f.loulton died December 24, 1998 11ft cr a difficul t ill· Jness.limes He had served a5allorney for the Lawrence County Boord of EduColtion for more than 25 years and was imtrumental in initialing Ihe equity funding IIIW$uit which challenged the method 01 funding Alabama schools. This Coue, wbich eventually sawall school systems in Alabama named as p;trties. resulted in the holding thallhe poem school systems in Alabama were not fairly and adequately furld~ by Ihe stille formula in place at Lhe lime. The state was ordered to df..'Vise II more equitable method for funding public school! so thllt the (Iulility of edu-

cation which an Alab.lma child received 1'10 I(.mller dl1j)er'lded !;hieny upon where that child was born. Jimmy worked long and hard wilh II group of attorneys 10 further his P.'Ssiolt:1te !>tlief that the children of Alabama should be treated equally. A threshold banier to the successful pursuit of the equity funding issue required an allack on Amendment III to the Constitution of Albbama, which Silid that the children of Alabama did not have iI right \0 11 free public education. This wa~ c(lmmonly known as the "Segregation" Amendment since it wa.~ el"lm.:h:d shor\l) after the United Sillies Supreme Court oull,lwed M:gregiltioll in the public M: hoo l ~. Amendment III was decillred uI\CollstilutiOl"l,11 1I11d Jimmy IIlld the Alabama Coalition (or Equity wenl on to pr(:Vail in the equity funding elise. Jimmy \~lIS lifelong resident of 1...1wrence County with roo15 going deep into its history. He was born in the small community of SDeake on rotarch 17. 1933.

His anceston; included the first teacher in Speake. the first superintendent of education and a Rcconslrudion legislatOr. lie graduated from Spellke Il igh School <ll"l(l Florence SL1te Te<lchefS College (now the Unive~ity of North AI<lbal'l1l1). lie did gr:.tdUIIICwork lIt the Uni\'Cnity of Tennessee lind receillfd his law degree from Cumberland School of l..nw lit Samford University. After graduating from law school, he returned to L.w,'rence COllnty in 1966\0 pr"ctice I"w with his brother. HilYold Speake. He was a member of the 1.c1wrence County Oar i\ssod,ltion and the Aillbamll StOlte llar ,lJId scrvt'd ,I~ a COI\1missioner (or the slate bar. He will long be remerllbered for his strong sense of justice. his indefatigable representation of his clients. his unquestioned ethical COI\1pass and his pride and professionalism in the Dractice of law. Jimmy viewed the leglll profession as j~!st that. a profession, and a high cillling. The facl that it was

also a way in which to e'lrn a living was alwnY$ $(:c(lndnry to him. Ills df:\lOlion to the "jealous mistress of the law" was unpMlIllcled hnd his passirlg leaves 01 void ill the bar not won to be filled. Oeing a voracious read~r. he was extremely well·relld an(l widely knowl· edgeable. One of his chief diversions was discussing the books he had read. !-Ie Wi\S a great supporter of Ihe public library, the Veterans. community heautilkalion and innumerable other dlaritl1bl ~ CilUSeS. Jimmy was a Veteran and 01 member of the I~i rst United Methodist Church of Moultorl. Jimmy wb$ pr€ceded in delllh by his son. John Charles Speake. He Is survived by his wife. Donnie C. Speake; 01 daughter, L:iuren Itobcrts or Declltur: II brother. Harold Speake of Moulton; and two grandchildren. Memorials may be made to the I...lwrence County I)ublic: Library. - TIm Littrell. Moulton

John Engllmt nertolloti, Jr. Mobill! tldmilled: 1978 Died: January 10. 1999

Robert Sommerville !-liIl, Jr. MOlIlgomery Mmitted: 1929 Died: November 18, 1998

Thomu Franklin Seale Livingston MII/illed: 1937 Died: Nooomber J5, 1998

Karl T. 'Tyree, Jr. Plorunce Mmilfed: 1949 /)jeri: Oclober 29. 1998

Keener 11pplns Blackman Mobile Admitted: 1941 Died: September 2, 19.98

Hulherford Alonzo Norred Blnninglwl11 Mmitttld: /951 Died: Nowmber 21. 19.98

Clay Runell Shcrrill Annislol1 MmWed: 1954 Died: IJece/lloor 21, 1997

Mary Alice Wells Willttlr Park. Florida Mmilled: 1988 Died: AII(/IISI28, 1998

George Imrl Cllse. Jr. Ijirmillglwm Admitted: 1935 Died: IJ(!{;ember 2. 1.998

J. H!chllrd Plel MOlllgomery Admitted: 1974 Died: Jalll/ary /3. / 9.9.9

James Gilbert Speake MOl/ltoll Dietl: Decl!mber 24. 1998

Carl A. Elliou Jasper Atlmitted: 1936· OiL'll: Jlt/wary 9, 1999

Bonnem c Hu tings Rooorts Mobile Admilled: 1946 f)ie(!: Oc/ober I I, 19.98

William C. Thom/lf Monlgomery Admitted: 1936 Died: December 2, 1998

C h art e~

Frank J. Tipler. Jr. Alldalusia t\dmi/led: 1939 Died: Decem/)(Jr 5. 1998

Warnn L. Finch Hobi/I! Mmifletf: 1955 Died: September 20,1998

110 MARCH 111011

Barnwell Robinllon

nunpa, Florida Mmilled: 1953 Dilld: March. 1991

Admitted: 1966

Doug/IS O'Brien.

formor chair, NY Siale Bar Association Public Relations Committee, addresses the tough lopic of Image and lawyer路 bashing in a direct, prac路 tical and upbeat manner, You will dehnitety leave this session as a better lawyer, And thai's no Jakel

Thl ASB TIsk FDfCI On MlnD,I" Parllclpallon showcases the cnallenges 01 our legal profession today and how specially and local bars can work with the ASB on Issues Important 10 all Alabama attorneys. Program highlights Include: "Miles To Go: Progress 01 Minorities mthe Le(Jal Prof/lsslon"; How to Get anrl,tle/Ilin Corporale CII/lnlS'~ and a luncheon with {juost speaker James 0, Cole, ESQ" past presldont 01 the National Bar Amclat!on,

Mart Mayflrld contil1ues to earn accolades for his high-content seminars and stand-up comedy. He received rave reviews at his previous appearance before the Alabama State Bar and returns by popular demand to help Alabama lal'lYerS "Koop Balanced! ",

ABOUT MEMBERS, AMONG FIRMS Due to the huge increase in notices (or "About r-1e nlbcf~, Among l~i T!ns." The

"lIl1bama ulwyet will no lon.llu pu bli$h address changes for firms or indiyidual pr;:u.:tices. It wi/! continue to publish annOllnCC1l1Cnt5 of the formation of new firms or the opening of solo practices, as well as the addition of new associates or Il:lrtncrs. Please continue to send in lIddrc~~

eh/mlles to the membership

department of U\e Alab.1m~ SI,lle Bar. About Member.

CII!')'I P. I'rl"cll , fo rmerly United States Attorney (or the Nor them Distri ct

of Alab..lma. announces the opening or her o((lce localed at 11 5 O((ice I'ark Drive, Suite 320, Birmingham. 35223. Phone (205) 868- 1240.

l!Em!:.\I" I)li ~T.\I. ,IIALI'IIACru:1i IiXI'IiIITS

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Stlln ley A. lI-hutln announces the opening of his omce at 400 Second Avenue, Opelika, 36801. The mlliling address i5 P. O. Box 2526, 36803·2526. Phone (334) 749·4142. Michael J. Upton announces the c~ t ab· lishment of I'tichacl J. Utlton. I'.C .. uP!)'\ returning from a lwo·year sabbatical in Puerto I~i co, omces are located llt 2121 14th Street 1hscilloosa, 35401. Dwayne L. Drown ilnnounceS hi: is no longer with the firm of Chestnut, SantleTS, Sanders & PeWt.....ay, P,C. He has opened his solo practice. with omces locllted lit 4252 C:tr1T1lchael l~o..1d . Suite 219, I'. O. BOll 230205, f'.1ontgomery, 36123·0205. Phone (334) 277-3757. William M. MOIlI1', formerly II partner in Mc)light, Jllckson. f>tyrick & M()I)r~ , L. C.C., announces the opening of his omce al 107 S1. FTMcI~ Street. 1204 1;'lr51 Nationlll Bank Building. Mobile. 36602 )'hone (334) 431 ·68 17 G. Palterson Keahey announces the opening of hl~ offic~ ILt 2323 2nd Avenue. North. Suitt 200. Birmin"ham. 35203·3758. Phone (205) 250·0050.

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Toll free t·877·390·IICAJ Tclc pholM: (727) S79-1I054 TclttOptu(727) S73-13:B .... IN p"1LWd 10 ...... ~ 1""" <:III • .

Among Firma G. Stephen Wiggins. Thomal It Jones, Jr. (\lld C h~rlu M. Coleman announce lhe (ormation o( Dllv ld~ on . WilUlins, Jones & Cole.man. fI.C. The fi rm also announces that McCoy J)avld ~o n is of counsel lind Randal Kevin Ilavill ilnd J. I'aul Zimmennan have joined as associates. Offil;es aTe l()I;ated at 2625 8th Street. Tt.1.~Ca I OOs.l 3540 I . "he mailing address i$ P.O. Box 1939,35403· 1939. Phone (205) 759·577 1. Helmsing, Sims & Lc~eh announces lhat Jllmu B. I'lt tm~n. Jr. hilS become an associate. The m~iling address is I~ O. Box 2767, "10bile. 36652. Phone (334) 432-5521 .

Jbm e~ E. IIams &: Auocillies ilnnounce5 that I<ellie A\'cry.Tubb has become an associale. Offices are located at the Civic Center Executive SuilU. 1117 21st Street. North, Birmingham. 35234·2722. Phone (2051 322·5800.

".A.

Schofi eld &: Wade. announces thai ('aul A. Wilson has become an associate. O((ices arc located at Harbourvicw 011 Ihe Bay. 25 W. Cedar Street. Suite 620. P. O. 0011 13510, Pensacola. Florida 32591 -3510. Phone (850) 429·0755. I~u nell Jackson Drake, Joe R. Whalley. Jr., Glen 1'1. COIInor. Andrtw C. Allen. (lJauNen Kane Berg. I~eler II. Burke. C harl~ 'le P. Cullen. W. Todd UalW)', and IUchard I'. Routo announce the fortTllition of \\Ih~tley Drake. L.l"C. Offices are located ill 1100 I·'ini\ncii\l Center, 505 20th Street. North. Ilirminlth~m. 35203· 4601. Phone (205) 328·9516,

Vickers, niia, (llulr.l)' & CUrr.ln, L.I.. C. announces thM F. G!'(,')' Redditt, Jr.. L. Thomas Styron and Terry A. 1'1ool\! have become members lind that TImothy A. Clarke has become an associate. Offices are loc..1ted at the Ilegions Bank Building. 81 h FlOOr. 106 SI. Vrancis Street. "lobi Ie. 36('il2. I)hone (334) 432·9772. Iloilea & DMinlJI.'T, I'.C. (Innounc~ th.11 F'nnk Thmer 1I01l0n ha.~ bC(:ome a !l.111· ncr. The firn\ name ha.i changed to Iloilu . Daslnger & 1I01i0n. I~C. The m.~i1ing address is I~ O. Box 1058. HoberUdale. 36567.l'hone (334) 94704757. Spllin &: Clllon. L.L.C. announces Ihal David S. Maxcy and JAmes 1'. !tea have become m~mbeT5 and thaI Oavld I). Donahue has become ~n 115wciate. Morrow, Romine & PelTaon , P.C. announces thllt Chllndrtl C. \\-'right ha~ become an associate. Offices are located at 122 S. \-lull Street, f.lontgomcry. 36104. Phone (334) 262·7707.

Sadler, Su lllYlIn, Sharp & Van 1'lIutl. Il.e. announces that Keyin T. ShIrt. .. nd Michael II. Cregory haye become ..ssociatn. Offices are located at 2500 SouthTrust Tower, 420 N, 20th Street. Birmingham. 35203. Phone (205) 3264166, Charlu fit. Thomp.oll & Auodatu. P_C, ~ nn ounce5 IhM Kerrl Page Parker and Joh n I'. Willi,. IV have become usoclates. O((ices are located at One Independence Plaa;t, Suile 720, Birminghllm, 35209, Phone (205) 879· 9393. Donald.on. Guln & Slate. L.L,C. announces llllli Clndll R. York lind 1'lImmy filcClendon Stokes have bteome a$soclllles. O((ices are located al Th~ Morll.~ n Keellan Buitding, 2900 Highway 280, Suite 230, Oirmingham. 35223. PhOne (205) 879-999<1 , 8erkowltl. Lef'kovits, 110m & Kushner announces IhM Kil'8ten II . Kowalski. Sianley W. Logan. Robert D. Phillips. II lind Adam J, Sigman have become a$$OCiates and that Linda. S. khc h1l5 become of COI.lIlscl. Offices are located III the SouthTnlst Tower. 420 N. 20th Street, Suite 1600, Birmingham, 35203·5202. Phone (205) 328-0480. Richard E, OIlV!! and Leslie T. Field. announce thc (ormation 01 Ollvl. & Fldds, I·.C. O((ice! are located at 25369 Ilighway 98, Suite C-2, 1', 0, Box 2925, Daphne. 36526, Phone (334) 62 1-1555. l..eltman. Siegal & I'aynt. I>.C. announces that John Jostph Kubiuyn has be<:ome a member, Offi ces are locattd at 600 N. 20th Street, Suite 400, Birm ingham, 35203, Phone (205) 251 ·

5900. IJl'l'Idley Arant ROM" & White. I"L.P, announces that Luther J. Slnmj{e. " all D, IJl)'lInt. III. Paige M. Oavil~. Richanl II . filonk. "I , Jack W, Selden. IUld Meade Whltalcer, Jr. have become partners and tholt Rebecca G. Del'almll and F'~derk I..ee Smllh, Jr. have become associates, John.ton narton 1'!'OCtor & l'O\o,'cll, L,U ', announces thai John \II, She(fJehl. l118kln8 W. JOnC8 lind

nunell L, Irby, III hllve become I)~rl ners. Offices lire loc~ted at 2900 AmSouthlHarbert Plaza, 190 1 Sixth

Avenue, North, O(rmingham, 3520326 18. Phone (205) 453-9400.

Center, Suite 205, Birmingham, 35243. Phone (205) 970-0034 .

Nakamura & Quinn, L.L.I'. announces that Graham L. Sluon. lormerly 01 counsel, has become dCI)Uly Attorney Ceneral (or the State or Alabama.

Wallace. Jordan. R. tllf( &: Brandt. LL.C. annQunces that J. Birth Dowdre. Klm~rly R. Wu t lind I'eler E, IlIrber have become mt mbeu and that Matthew S. Alkln ~, Scoll \\" Cotnell, Kyle C. Damnlinl.'. Shllra 1" GI'fI)'. fillchael J. Murphy, and JOIlI O.

JIIIICCky. Newell, PoIIII. WII ~on , Smith & fibstelllo n, p,e. arlnOUnCe5 that Ilany V, Satterwhite has become an l1S5QCiate, Offices are located in fi10bilt and Pensacola. Phone (334) 4328786. lIolllday & Al5oci~ttl announces lhat Roger W. Varner ha~ joined the firm with offices at lWo Chase Cotl)Orale Center, Suite 120. Birminj{ham, 35244, Phone (205) 733·8598. Urlnn fit. White, A m ~ lIa 1I~ lnu Grlffilh and Brian Austin Oaku announce the formation 01 White. GrI(filh & Oaku. P,C. Offices are locat· ed lit 601 J ohn~ton Street, SE, l>tcatur, 35601. Phone (256) 355-11 00, Conlon. Silberman, Wiggin. & Child, announces that Karen Koluuk has JOined the fi rm. Offices are located al 1400 SouthTrusl TO\OIer, Birmingham, 35203. Jlhl)rle (205) 328-0640. Oemt''':y, Sleed, S t ~wart & Kj!IlYu . P.C. announces that Jonathan Oavld Creen has joined the fi rm. Offices are located at 100 Riverl'oint Corporate

Connally have become aS$()(laIC$.

Offices are located in Birmingh:.m and Montgomery. Nix, lIolbford &: \'ercellJ, ".C. announcu that Slacy A, Unn and Jay S. Tuley havc become aSSOCiates, Offices are located at Union Stalion, 300-A Water Street. Suite 300. Montgomery, 36104-2558. Frank Turner Hollon. Sharon lIoliei and filkhaell)u lnger announce the formation of 1I0ilu. Oll8lnllcr & 1I01l0n. Officu are locat~d ~ t 1841 0 Pennsylvania Street. P. O. Ilox lOSS. nobertsdale 36567. Phone (334) 947-4757. I)avidson. Wiggins, Jonel & Coleman, p.e. announces that Thoma. R, Jones. Jr, hasjoincd Ihe r.rm. Offices Me localed al 2625 8th 5lret!. Tuscaloo:l<l, 35403. The mllihng address is r. 0, BOK 19:19, :15401. Phone (205) 759-577 1. Lamllf, Neltoll & fitliler, I~C. announces the change of its I'klme to Lamar. fitllkr & Noms.l',e. The office will remain at 1600

Amendments to the Rules of the United States Court of Appeals for the Eleventh Circuit Following receipt and considermiOn of comments to the proposed amendments to the Aules ollhe UOiled SI~ t es Court 01 Appeals fOr Ihe Eleventh Circuit, the court has adopt· ed the proposed amendments, with mlllor mo(liflcalions, effective Aprrll. 1999 In partic· ular. counsel are adviSed that Ihe court adClllled amendments to Ihe Aules which Pfoylde that the lime for filrng appellent's brief begrns to run on the date the COUrt repoller files the tral\SCllpt or, If no transCflpt IS 10 be prepared, on the date the appeal IS doc:~eted by the COUrt of appeals The court also determined 10 make addlllOnal minor rftYlsioos 10 the fonowlng Aules and IntDlllal OperatIng Proce<iur9S (lOP) of the court, lOP (p. 22). 11 th Cir. A 11 -2 and 11 · 3: lOP 1 and 2 (p. 43), 11 th CII A 28,1. lOP 2 (p. 73): lOP 15 ~p 99). lOP 4 (p 128). Pursuent to 28 U.S C Secti on 2071(0), these additional amendments also take e'fect on April 1, 1999. at the samB tIme as the olher amendments 10 the Aules The cncui t rules, along with tile amendments therolo. may be found at the Eleventh Circuit's WebSIte et www.ce l1 ,uscOurlS_{l0Y.

MA"CH . n l l I D3

~'inancia l eentef, 505 20th Street, North, Suite 1600, Binningham, 35203. Phone (2051326-0000.

Bainbridge, ~lIm s , Rogers & Smith , L,L.r. announces that Charles Keith

Hamilton, form erly with Bradley Arant Rose & White, has become an associate. Of/lees are located at The Luckie Building, Suite 415, 600 Luckie Drive, Birmingham. l'i223. The mailing addfcss is 1', 0 , BOM 530886, 35253, Phone (205) 879· 1100. lIalcomb &. Wertheim, I'.C. announces thllt Thomu \\I, St, John ha~ become an asgociate. Offices are IOCMCd at 2231 1st Avenue, NOfth, Birmingham 35202. I'hone (205) 251 ·0007. Gardner, DUllln &. O'Neal announces that John M. Graham became a partner. Offices are located in Birmingham ~ nd Mobile. C BbB nl ~~ , John ~ h'",

Sabel &. Sabt l, I'.C. announces that D, nennckin . forme r law clerk

~hrida

to the Honorable Charles Price of the 15th Judicial Circuit, Montgomery County, 'lIId to the Honorable Sharon C. Vates, Alabama Court of Civil Appeals. has become an associate. Of(lce§ arc located at 2800 Zelda ROlld, Suite 100·5. Montgomery. 36106. Phone (334) 27 1·2770. l'aUon, I.atham, I.ejl:[!e & Cole announces that Claire Tinney Jonu ha~ joined the firm. Offices are localed al 315 W. 1>1arket Stred, P. 0 , Box 470, Athens, 35611. Phone (256) 232·20 10. ~l allWey & Siotu r announces that Ann ~ D. l.amkin lind Jeffrey \\I.

Brumlow have become as§ociates. Offices are located at 1100 E. Park Drive, Suite 301, Bi rnlinghll1n, 35235. Phone (205) 836-4586. William V, Powell, Jr, and Grel(ory T. Denny IInnOU1\Ce the formlltion of Powell &. Denny, P.C. The mailing address is P. O. Box 362145, Birmingham, 35236. Phone (205) 982·6909,

Luker, Cole & ruS()t';IIIIU, I..I..C. announces that Michael C. COSTley, ~1.D, has become an associate. Offices are located at 2205 f\lorris Avenue, Birmingham, 35203, Phone (205) 251·6666. I.ucas, Alvis & Wllsh, I',C. announces that Mark A, Stephens hal joined the ~ rm. Offices are located at 1Wo Chase Corporate Drive, Suite 460. IJirmingham, 35244. Phone (205) 733-1595. Pomtle)' & !'ompey, P,C. announces lhat Deborah B, ~I ont gom e ry, fo rmerly an aUorney for the City o( Birmingham, has become an associate, Offices are l(X;ated at 117 Broad Street, Camden, 36726. The mailinR address is P. O. Box 189. Phone (334) 682-9032. ~lcElvy & 11ord, I'.C. announces that RIchard 1\1. Kemmer, fo'n nk 1\1. Cauthen, Jr. and I)avld I', ~I artln have become shareholders. Offices are locat· ed in Tuscaloosa ami Centreville. •

Mow do we in\pf<ove the image of the legal profession today?

Our answer is "ORe lawyer at atime." Winner 01a 1997l'ublic Ilelatiotls Council o( Alabam.1 r<leril i\WOlrd and a prestillious 1998 TI::I.I.YaWOlrd for video production, "To Serve The Public" is designed for usc in slleaking to civic lind community groups. inc\udillg schools. Every local bllr association in the state hll.~ rcc~ivcd a free copy of the video pre· sentation ,llld 300 brochures. Contact your loc.1! b.1r as5OCiation president or runtheASB at (334) 269·1515 for addi· tiollal copies or information. This com· plete Jlublic service vIdeo Ilresenllltion includes: th~ eight-minute video; a hantlbook of spet!ch points; and informational brochures for the audience, (No'rE: 'IV lInd r,ldiQannouncements h.we been excerpted from the video and <Ire now being shown across the state-look and listen for them in your community and encourage your local stations to air them!)

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BUILDING ALABAMA'S COURTHOUSES J3y Samuel A. Rumore, Jr.

arbour County

arbour County was established on the busiest single day in Alabama B county.creation history. which was

Barbour Countv Established: 1832

1he following continues a history of Alabama's county courthollsestheir origins tm(/ some oflhe people

who contributed to their grow'''. If you have ally photographs of early

or present courthouses, please forward them tQ: Samuel A. Rumore, Jr., Miglionico & Rumore, 1230

Brown Mar:( 1bwer, Birmingham, Alabama .15203. on .... neM tlOO

December 18. 1832. OtiC to land cessions (rom the Choctaw, Cherokee ;lOd Creek Indi'IllS. the Alabama I.elfislature e5tilblish~d ten new CQI.II1tic$ on thM on(: day. Sumter came from the Choctaw land. Coo:!a. Macon. l~andolph. Ilus~e ll . Tlllllldegli. and Thllapoosa were carved (rom the Cherokee cessions. Chnmbers. Benton (later called Ca lhoun) and Barbour came from land previously occupied by the Creek Indians. The earliest American settlers in Ihe area that would become Barbour COlmty probably arrived there in 1817. 'rhey came to trade with the [ndian~. 'l'he oldest town was Williamston. localcd approxim"tely 12 miles southwest of present.day Eufaula and six and a half miles southellSI of present路day Clayton. This lown W1iS seWed by members of the Williams (amily from South Carolinl. Farming and Indian trade were the princi. pal occupations orthe lown. There is also evidence that other pioneers ventured down the Chattahoochee I~ iver in 1823 on their way to f.1arianna. Plorida. 'l'hey approached 51. Francis Bend lnld were surprised to find the tndian lown of "Yufala" located at 51. Frllncis Point. They decided lO remain in lhe nrcI'!. The Indian town of "Yufl'!la" was located north of present-day Eufaula. A number of seUlements throu"hout the Creek territol)' hild this same name Qr one of its variants, including Ufilla. Ufaula. Uphllulie IIIld YOfllib IImOI\1l oth路

ers. There is no generally agreed urmn spelling or translatiOn for Ihe name. The spcllinA of present-day Eufaula i$ probably phonetic. There is also a EufllUllI, Okillhol'llil., 11~m~d by the I ndian~

who were removed from

Alabama in lhe 1830s. When IlItrbQur Counl y WM crea ted on

December 18. 1832, its territor')' came fro m Pike Coullty and the Creek lndi:ln lands. On January II, 1833, the Legislature provided for the organiza' tion of Ihe COWlty. Any oifke 路holders living in the portion of Pike County transferred to the new Barbour COllnty CQuid stily in (,Iffiee for the rcm"indcr of their terms. The legisl<lHon directed the sheriff to hold an election ill February 1833 for addillonal ofl'icers 3S needed. The I.t!gislnture appointed an II -per. son commission to select the site for the county seal. The members of the com路

mission were: Jacob Utery, Daniel r-1cKenzie, Willinm Cadenhead, James A. Head, William Norton, William Bush, Creen Beauchamp, Samuel G, D, Adams, Noah Cole, I~obert ltichards, and T, W, Pugh. The yet·to·be selected toYo'n site WilS named Clayton by the l.egislature in honor of Judge Augustine Smith Clayton, a distinguished jurist. author and statunl:ln from Athens, Georgia, who served in the United States Ilouse of Representatiws from 1831 to 1835. The Legislature further mandated that until a centralb:ed selll of justice was scleeted, courts would be htld at Louisville, the former counly seat of Pike County, which was now located in the newly-cre· al~d Barbour CoUllty. James Barbour, fo r whom the county was named, W;I~ a Virginian born in Orange County on June 10, 1775, lie became a lawyer at agc 19 :lnd W<lS clect· ed to thc Virginia Ilouse of Iklegalcs <It age 21. He served In thllt legisillllve body for 16 years and was elected Spenker of the "louse, He authored the Virginill anti·dueling laws. In 1812 he was elected Governor of Virginia, In 1815 he became a United Statu Senator. From 1825 to 1828 he was John Quincy Adanu' Stcretllry of W..,. Barbour then served as fo1inistn to Englnnd from 1828 to 183(), lie died in Orange County, Virginia on June 8, 1842. The first circuit court in Harbour County conwned til Louisville on March 25, 1833, with Judge Anderson Crenshaw presiding. The next court wM set for September 23, 1833, also lit I.ouisville. but il adjourned to meet the next day at Clayton. The judge did not appear (or this fir~t sch(!d(lled court session at Clayton and so the firSl circuit COtlrt held in Clayton took plllce in March 1834 with Judge Andcuon Crcnshilw of the Sixth Ci rcuit again prcsldin". A "suitllble house" hlld been provided by the citizens for holding court in Clayton, The courthouse was 20 feet square and constructed of round pine 10115. It had one simll window and one door at the southent end of the building. Accordinll to an early account it WM located on Ihe northwestern corner of lhe present court square approxi. mately where the store of C.C, Greene stood lit the time the account was writ· ten in 1873. The contractOr for this flrsl courthouse was Thomas Warren.

While Clayton was the le"isla. lively-mandated and cenlTlilly located county scat o( Barbour County. another town .....as settled around 1832. On March I. 1833. a post office .....as established al this small villa"e OVtrlooking the Chatl1lhoochee. The village was called Irwinton in honor of GellHal Willillin Irwin. an c<lrly pio· neer and legislator from Ilcnry County. He had done much for the development of the town, including securing a landinl:t for riverlmats as well as being Instrumental in obtaining the l)o5t office, [)urin{l 1834 and 18351he town grew rapidly, The first churches, stores and hotels were established. Because a .5<1wmill .....as built in 1835, better homes could be tonslnlCted, By 1836 the town hIld a popul3tion of approximately I,SOO. In 1843 the name of II"\\~ntoo was changed to Eufau la, the n3me of the former looi3n village that i'I:Id been located a few miles to the north. This action did oot reflect disaffection 01 the community with Ceneral Irwin. It \\'35 simply done to avoid confusion .....ith a Georgia town of Ihe same name. Irwin continued to reside on his plantation located in the area. In March 1850, Irwin had JOld some cotton and was returning with the gold p;l}'ment which he kepi in a money belt. The slellmboat on which he traveled, the /·I.s. Smith , caught fire, and hwin. weighted down with gold, drowfl~d in the waters of the Challllhoochee niver liS he atu:mplf:d to eSCIlI>C the names. The river, which provided the fo undation for prosJl('rily in Irwinton. later called Eufaula, had claimed the lown's first namesake and patron. Eu(au la became a rich community becau$(' of cotton, and many wealthy plantation ownH$ built fine homes in the town. One reason they built these resIdences in Eufllulll WIIS to allow their children to take advanL.:age of thl! educational opportunities there. induding the Irwinton literary Institute. Many of the beautiful ante·bellum mansions remain in Eufaula today, and a I-Ieritage

Association sponson annual tours of these homes, Eufaula was threatened during the Civil War when fede raitrOOl'5 under General Benjamin H. Crierson appro.lched (rom fo1obile on ,\pril 29, 1865. The Iteneral had not received word of Lee's ~ urrender on April 9. Leaders of the town went out to meet the general and his 4,000 cavalrymen. They escorted the soldiers through the town and across the Chatlllhoochee Ilivtr bridge to camp ne3r Ceorgetown, Georgia. Eufaula remained under federlll military restriction (or several months, but it did not (onnally surrender. No private propert)' was destroyed, which makes Eufaula a shoYo'CaSC In Alabama of ante·bellum residential construction. The 183310101 courthouse ~l Clayton WIlS replaced in 1854. The ntw court· house WIlS built 011 a cost of 59,695. It was constructed in Ihe clasu:a! style, In 1924 this building WIlS remodeled and expllnded, a!ld wings werc added to the structu re, In the 1960s II frlod crn court· hotlse replaced the 19th century building at Clayton, The new Clayton courthouse was a prim<lty project of the BIlTbour County Bo.lrd of ncvenue, chaired at the time S.m",e l A. fhlmO N , Jr. ~ A. fVrooe. Jr It e ll'lI(IuIotIt t:J .....

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lor ... !OII QoiI. pr.o. ~ ku. _ II. nwrC)oIr t:J flit AIJoI:IJwnII UIoyIIt EdiIOIIII eo.d .... nCI! ' 00',,,

by A. O. Robertson, Jr. It required ycars ofplanninp; and re~e<lrch . COI\~ t rucllol\ wa~

made possible by a vote of the coul\ty 011 June 28, 1960, authorizing $350,000 in bonds fo r the project ~ n d a 2·mill ad valorem tax for il perioo of 20 years to ;Imort i~e the bonds. The bond issue passed by it county.wide vote of 1,592 10 377. The ad valorem lax incrtase was approved by a vote of 1,532 to 385. The courthouse contract was awarded on Noyember I. 1960 to Mid·South Constructors Corporation of ~1 0ntgomery fo r $414,030. The architect who designed the building was Carl Ilerberl Lililcaster, Jr.. illSQ of Montgomery. In a news article published III the time thllt the cont ract WIlS <lwarded, L;mc<lster ~ t"ted th"t the de~ign of the building WIIS based or\ enhancing the entire court square and the Confederate monument whi=h is typical or small southern towns. The building was constructed of limestone, granite and brick. It consisl5 of tViO stories and a full bitsemen\. On the front of the buildin" is a massive portico of blllck granitc columns enclosed with glas~ forming a lobby. The first floor was designed with an unusual octagonal.shaped auditorium that opens into the lobby, The large court room is located on the second floor. 'rhis court· house in Clayton was completed in December 1961. Meanwhile, by the 18705, Euf1Luill h1Ld flLToutplLced Clayton as the most populous lind Importllnt tity in Barbour couLlt)' and theTe W<lS intcrest in having it be the count)' seat. Instead of removIng the county 3eat from the geographi· cal center to the commercial center of the county. Barbour County leaders reachel,l a compromise. A courthouse would be buill in gufau[a fo r Ihe conve· nlence of its citizens. The City of Eufaula would fumish the [and OInd Barbour Count)' would construct the l oa

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building. By agreement, the city would have control of rl'Lunkipal officc$ In the building. Act No. 106 of the legislature of 187879 was approved on February 12, 1879. Under this law, the first week of any term or circuit court in Barbour County would be held at Clayton. The second week of the term would then take place at l~ufIl\Lla. The circuit clf,!rk ....'.1$ directed to maintai n an officc in each loca-

tion. Also, a dividing line was made in the cou nty between survey raLlge~ 27 and 28. Crimilml and civi l matters aris· ing west of the line would be heard in Clayton; those arising east of the line would be heilrd in i!:ufa(Lla. This arrangement sti11 eKists lol,lay with courts being held in both Clayton and Eufau[a. The originlli courthouse ir) Eufaula was built In 1877. It was a two-story brick bui lding with oulside double curved stair~ leading up to the entrance to the cou rtroom 011 the second noor. These stairs had cast iron posts and rails. This building WilS used jointly as a COlmty courthousc by 13.1rbour County and as a city hllll by Eufau ill. The City of EufOlula owned the building. By Novcmber 1922, the city hOlIl-courthouse in Eufa ula needed to be replaced. The state fi re marshal declared the structure unsafe. [n 1923 the City of Eufaula appropriated $15,000 toward construction costs of a new buildinJi on the same site, The County Board of Ilevenue aWllTded a building contract of 534,958.52 to Shicld~-Guice Lumber Company of Dawson, Georgia (or construction of a new fucili · Iy, They 11150 approved II heat· ing-system contract with Wal ter Denison of Columbus, Georgia. This new courthouse in Eufaula was completed in Oclober 1924 at the $arne time thal the Clayton Courthou$e WlI~ remodeled al'ld CXpllnded. The building continued to be jointl)' owned and used by Barbour County <lnd the City of Euf.1u la. The Eufaula Kiwanis Club passed a res· olution praising the new courthouse illld the cooperation of the City Counci l and the Count)' Board of Revenue in completing the project. By 1975 the shared facilities were no l(JnR~ r Mlcquitte fO r u~e by the city and the county. The Eufaula City Council and the B:,rbou r COullty Commission

Clavton attonwu LUIIII RoINrtSOIl Jackson; and the Probate O!1ioo of /JurOOlir Cmlll/ll for assislU/1CfI ill obtain;119 infomw/iOI1I1s{-d inlhis arficle. Source5: / !J:~(Qr!l of f.:uftwla . Alnb.1m.1. Eugenia rerS()n.~ SrTh1rtl. 1930: llis/ory of Barbour COl/ll/y. ;Uabama. Mattie Thorrw TIlompson. 1939; lJ.tcktraeJ.ill!l In Barbour Comity. Aline Kendrick Walker. 194 1; Along Brood Streel. A Hislory of £lIftwla. Alabama. 1823-1984. nobert H. F1C'n'ellen. 1991 : TfwClflyfon

Ni.'COro. Jllly 1. 1960. July B. J960.August 11. tOOO. Seplember B. 1960. October 6. 1960. November 3. 1960. NO'lCmber 30. 196I,lkcemher 14. 1961: Til'! ClulIlOIl R("COn/. ~ 1 1istoriCIII Facl$ o( Barbour

County neve.l1ed." article by nuth McDonald. TIlUrsday. June 17. 191\. came up with li pl~n whereby Ihe counIy would purchlisf the half interest of Ihe city in the building for $100.000. This amount \\'Ould be Polid in three yearly installments of $33.333. As part of the agreement. lhe Cit)' could retain its courlhouse oWlees rent.free for up to 30 monlhs while a new cit), hall was built. The new Eufa(lla City Halt was compleled in 1976 and Ihe ~;ufau l a Court hou~e wa~ then occupied solely by the counl)' and the courls. In 1984 Ii non·binding referendum took pll\CC to meaiure public opinion on an increase in properly tllxes that wOJ.l1d be used 10 renovate and cxp:md the courthouse at Eufaula. This slraw vote p.used 1.30 1 to 935. Substantilil renovations Wi!rc completed in 1986 which modtrni:zcd the look and Ihe operlition of the building. Anderson Construction COrnllany of ~'o rt Gaines. Ceorgia selWd as general contractor. t)londhcim and Mixon. Inc. were the architects. As n final note ahoul Barbour COlmty, it has exerted nn influence In Alabam,l politics far beyond Whli! should be expected from a small. primarily mral county. Six Barbour counlians have served as governor of the state of Alabama. These inclJ.lde John Cill Shorter. 1861 10 1863: Wi11iHm Dorsey Jelks. 1901-1907; Ilraxton ijragg Comer. 1901· 1911 ; ChOluncey Sparks. 1943· 1947; Ceorge Corlty Wallace. 1963· 1961. 1971-1979, 1983. 1987; and L.urleen Burns Wallace. 1967-1968. It 15 also remarkable that the small county seat lown of Clayton was tile

h om~ of both the COW!Tnor. CL'{)rge Wallace. lind Ihe Liculen:lflt Covernor. Jere Beasle),. from 197 1 to 1979. CoosirudioosJpntl/ Harbour County tw ""uhulu Courlhowr. 1986 a truly remarkable heritage of providing high.ranking politic:.1leaders to the st"te of AI"O;lIna.

•

Tlwall/hor ucimoll'ledgt>s the {Issis/am:e ofJuslice J. G'oml(/II HOI,ISIOll, ir. of'lta II111buma Suwellll! Courl: Eufaula allon/ell ~S/Oll C. Claglon:

lURC H . DOg , . 0 .

Lawyen Moving From One Firm To AnotherWhat Are the Ethical Problems Involved In Changing Law Firms? By 1. Anthony /t1cwin, general counsel lawyer may h.we with clients of the fi rm. [n R0-82-689, the COI1\mission held that a former partner of a law finn could mail and commitmenllO one's a proposed letter to members of the for· clients, with Alabama haYing adopted mer firm, offerin g the lawyer's future ser· the first "o(ficiul'" code of ethics for vices. The caveat ilS enun· lawyers, Ih e reb~' (ormillh~· ciated by the Commission ins: these principles. With \.o,'ilS that such il let ter was the growth of the profespermissible if(J) the leller sion, proliferation of speis lim·ted to dients that cial interest (acllon5 of the lawyer persona!!y the bar, lind specializaserved and is nol mailed tion, the days of fi rms to prt.Y!nt or fonner having lillie, if any. clients 0{ the finn wilh turnover of lawyer memo which the lawyer had oot bers mlly soon be OVtr. personal oontact. and (2) Granted, there are lhe language 0{ the letter. those megafirnu where "It I may ever be of service lawyers who previously lo you in lhe futu re. worked for the 13w firm as please feel free 10 call on law clerks are hiTt<! upon J . Anthony Melilin me,\.Ias deleted since graduation. tutored for such constituted direct Ihe b.u exam, and added solicitation. Note that this opinion WM to the roster of attorneys once they rendered pursuant to the fonner Code 0{ receive their succu$ful bar exam grades. Professional lksponsibility. Under Ihe preBut there Is also II significant increllse in sent rults governing tll.wyer IIdverlising. the transition of lawyers among fi rms, the referenced language could be utilized as well as substantial defections by so long as the disclaimer and filing lawyers (rom their parent firm to create requiremenl5, as \'o'~ IIl}s other IIpplicable II new and independent firm, In thcse advertising rules requiremcnl5. were mel. situations of wiUldrawal of fi rm memWith regard to clienl nics, the bers, resort shou ld be madc to the rules Commission has repeatedly held that of ethics to ensure thilt the principles of absent a fee dispute or valid illlorney's loyalty and confidentiality arc upheld. lien, the me of the client belongs to the The most obviOUS problem would dient. In RO-92-0S, the departing Iilwyer appear to be connict of Interest issues $01,Ight a(!vice as to what his fOrmer firm which are eteattd by the transition of should do with the multiple me~ of lin both lawyers and non.laW)'ef employees existing dient. when the dient had among law fi rm}, However, II more requested that the files be transferred 10 troubling Issue to the public appears to the departing lawyer at his new firm . The be what the Hmovi ng" lawyer can ilnd Commission determined thllt in all mat· cannot do with relJllrd to conlllctinA ters wherein the firm's fees had been clients of the finn, lIS well lIS whal haplXlid, the firm would be required to pens to client files. release the files consistent with the Thl': Disclplln.'lr)' Commiuion has oon· directions of the client. The Commission sidered what. if any, oonlllcilhe departing

he history of the legal profession

IIcknowltdges continued loyally

rell{firmed il5 earlier position as to the right to client files as previously oon· cluded In HO's 86·02. 87·148, 90·92, and 91·06. The Commission noted that if the multiple files ilnd documents contained therein were so inleFWQVen thalthc files could not be, with reaSonable effort. segregated, Ihen Ihe firm might be allowed under lhe altorney's licn Sllilutc (Code of Alabama 1975. § 34·3-61) to retain the entire work produc\. HOWtver, if, with lhe exercise. of reasonable effort. segrega· tion of the files could be accomplished. the lien would IIttach only to those files wherein the firm was still owed a fee. The primary focus should remain on the client in these types rJ sit (lations. Disputes between the firm and the departing Iilwyer should in no way jeopilrdize the rights of the client, .. nd the orderly progressIon of the dient's legal matter(s). Since most of the disagreement over client files appears to be mat· ters of contract law disputes between the firm and the departing lawyer, and not the concern or responsibility of the client. these personal issues should in no way imlXlir the continued ~ea lou$ representation of the client. In further explanation and amplificlItion oflh cse princi ples.lh~ COrllmi~5ion, in 110-91-06. addressed tht ~itua lion wherein a firm rcprC5cn t ~d several cli~ nt s on a contingency fce contract basis, Upon the depMture of one of lhe members of the firm, the query WilS posed as to whllt oontact the departing lawyer could ha\'e with these clienu, The Commission concluded that the depart· ing la~r oould contact the clients with whom he had had contact, some of whom hc had even "brought- to the firm when he had joined it. Tht departing lawyer could. in communicating with thest clients, nOlify them of lheir right

to designate where there files should go, including (I) staying with the firm. going with the departing lawyer to his new firm. or (3) takinllthe file to a new lawyer or lllw fi rm. The departing lawyer could, upon request of lhe cHent. draft a let· ler to the fornler firm, for the client's signature. notifying the former firm of the client'. decision and request. ing that the client's file ~ trans· (erred to the departinllla~r at his new fi rm. This all assumes the com· plete absence of any intention:!1 interference \\.;Ih the previous con· traclual relationship, or fraud, deceit or misrepresentation in inducing ter· mination of allrevious lawyer.client relntionship.

(2)

The connicl of interest problems 3re specifically addressed in various ethical rules. Rule 1.1 0, AllIlxml/l Rules of Profes.f/onal Conduct, deals with the issue of imputed diSQualification: "Rule 1.1 0 Imputed Disqualification: Cener:!1 Rule (a) While lawyers are a.s.sociated in a firm , none of them shall knowingly repreSf!nt a client when any One of them practicing alone would De pro· hiblted from doing 50 by Rules 1.7, 1.8(c), 1.9 or 2.2. (b) When a lawyer becomes associated with a firm. the firm may not know· ingly represent a ptl'$C)n in the same or a substanlia.l1y related matter in which that lawyer, Or a firm with which the lawyer was wodated, had previously represented a client whose interests lire materially adver$e to that person and about whom the lawyer hml acqllired informlllion pro· tected by Rules \'6 and 1.9{b) that i$ material to the matter. (c) When a lawyer has terminated an association with a. firm, the firm is not prohibited from thereaAer rep· resenting a person with interests materlallyadvtrse 10 those of II client representtd by the formerly associated laW}cr, unless: (1) The mailer is the $lime or sub· stantially related to that in which the forme rly associll\ed lnwycr represented the client: :.nd

(2) Any lawyer mnaining in the

firm has information protected by nules 1.6 and 1.9(b) that is material to th~ matter. (d) Adisqualification prescribed by this rule may be waived by the affected client under the conditions stated In Aule 1.7:' The Comment to Rule 1.10 recognizes the present problem of bein~ able to exaclly define '·firm." in the context that word Is USf!d concerning conflicts of interest. The Comment even devotes sig. nificant discussion to the (oncept of "I..awyers l'>1oving Betwun Firms~ and ~Confiden lial i ty. ~

Recognizing the need for interpretation of the "new" Rules of Professional Conduct as adopted by the Alabama Suprenlc Court in 1991, the Disciplinary Commission of the Alabama State 1311r issued /I formal opinion, RO-93·03. construing Rule 1.10 in light of a co-counsel arrangement. The Commission pointed oullhe gener:!1rule of 1. 10 that when a lawyer switches firms. he or she must t\iWe actual knowledge about a former

client !>tfore lhue is any disqualification or imputed disqu.1lification in representing a J)<Irty iKlverse 10 tilt former client. In other .....ords. a "moving lawytr is only deemed 10 carry actual knowledge when associating with the "new firm. Under the previous Code of Profusional Responsibility. the "Iaint" of imputed disqualification was much greater. c:!using almost absolute dis· qulllificlltiofl reg:!rdless of whether there was "~ct ual knowtedg.:. Kas is required under the present Rule 1.1 0. Thus, the "Typhoid l'> laryKstand.lrd has been significantly relaxed to now require knowledge. and not merely pre· sume that such knowledge automatical· Iy exists. The Dis<:iplinary Commission has long recognized in Its fo rnml opinions the duties of loyalty and maintaining confi· dentiality of client information. The extension ofthese duties to non.lawyer employees was addrused in RO·89·41. Therein, lhe Commission concluded that the plaintiffs firm 's hiring of a legal investigator previously employed by an insurance defense firm, and who had M

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actu<llIy performed investigative services for the defellse firm wherein the plain. tiff's firm was opposing counsel. WI\S impermissible. The Commission did recognize that the parties could waive the conflicl after full disclosure and consul· laticm. but ,Ibsenl slich the hiring of the investiltator would require the plaintiff's firm to withdr<lw from all matters in the iI'I\Ie~li gator had worked while employed by the defen se firm. In nO·89-71. a lawyer left one firm to begin fI solo practice. The solo pr~ctition . er wanted to sublease offi ce space from another attorney. However. the limdlord· laW)ler was ollPosin(l counsel in a case against the solo praclitioner's former firm and in which the $010 practitioner had been involved while a member of the firm . The solo practitloner's n(>W arrangement with the I<lndlord-kll',oycr would require him to assist in certain cases of the Ilmdlord-la\\.')'cr. but not the eMe in question. Even so. the Commission deter· mined that the ])roposed sublease ;\Tr~ngemenl between the solo practitioner lind the landlord·hlW)ler must be carefu lly guarded so as to not illiow the slw-

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ing of any inform~lion by the solo prilctitioner and the landlord-lawyer about the case in question. The Commi5sion further Cilutioned the solo prtlctitioner. in dClIling with his "n(>W" employees lind associates. to exerci:se rellllOnabl~ care to prevcrlt his employees, flssocilitCJ and others whose services were utilized by the lawyer from disclosing or using the confidences or secrets of any of his former clients. [n I~O·89· 81. the Commission held that the hiring by plaintirfs law firm or iI secretary who had previously been employed by oppOsill" COun~\lI. 1Ind who had been directly and substantially inllQlved during s<1id employment. disilualified the plaintiffs lOll'.' firm from rep· resentation in the [itlgatlon. In reaching this conclusion. the Commission referred to lind relied upon iU determinOltion in Ito·89-4 1. supra. The Commission has further determined that the gaining of confidential information by a departing attorney may contimle to disqualify Mid attorney from represent ing new clients ag.linsl clients of the fo rmer firm, ~'\Ien in " n ~w" tIl<ll\ers. This di ~IIUjllificlltion occurs when the depa.rting 11Iwycr's knowledge includu settlement and trial st rlltegie~ or philo:lOllhies. theories of defense, or overalililigfltion philosophy of the c1icnls of the former firm. The Commission hOls also considered the utilization of teml)()r.:Ir)' non· lawyer employees. and the !X)ssible connicts involved when these ~mployees do work for more 1I1IIn one firm. The Commission determined th~t sh~ril1g of these tltmJXIrilr)' em pl~es did not automatically require diSlIU~ l ific.1liDn of the employer finns_ In order for the firms 10 avoid di&qU<llific.llion. they must take reOlsonable rneasure~ to protect confid enti1l1informa· tion and to preserve lhe confidences of Iheir clients. [n its discllssion of this issue. the Commiuion pointed out iI's findings in RO·89·91 that the firm should withdraw because it had made no effort to screen the secretary from furlher involvement in a particul~r case. r.1cntion was ~ [ ro mad~ of nO·89-<11. JXIinting out that the OP t)()rt linit i~s for disclosure of confidenti;!1information werc $0 great If the irlVestigillor were hired. Lhllt due diligence find "Chinese ""'01115" erected Ilround the ilwestigator were insufficient to pre· vent disqualification. In addition to IlO·93·10. discussed abovi!. two other opinions hiL\'e been ren-

dered by the Commi~~ion Jince 3doption of the 199 1 rule~ which merit discussion. hi flO-91 -IS. a firm was con$idering hiring 01 lawyer \\'ho was previously employed as assistant general counsel and assistant secreUlr)' ror fI corporatlon that had instituted a lawsuit against a client of the inquiring finn. Hecognizinll: the "new." relaxed standard of the 199 1 rul e~. the Commission cOllc1ud~d thlt it w(luld not require disq(mlificalion of th(>. firrllif the hire was consumm.'\ted. as the corporation Ikld. in writing. waived any possible connlc!. TI)e Commission poInted oul that the connict could be .....aived. provided said consent was given aner "consultation." find the laW}'er satisfied himself thal the representation would not be adversely ~trected. ,x'(.', Ilules l.7and 1.9. Alabama Rules of Professional Conduct. Lastly. ilny Iilwyer confronted with the possible tonnict of interest issue reJtarding vicarious di5qualification sh(nl1d consider this mailer inlht cOr)text of the I,ll'.', in <lddition to ethics. In the case of Roberfs rI. Hlliehills. 572 SO.2d 123 1 (AlfI. 1990). the Supreme Court of Alabama held: "We have full y considcr(>.d the plain. tiffs ;Irgumcnt corlccrning the flpp lic~bility of the so c1ll1ed 'Chinese wall' defense. which is recognized in some juri~dic tl orl8 and which ....'1IS recog· nized by the trlllicourt as II basis upon which to avoid the vicarious disqualification of Pittman. '·Iooks. The term 'Chinese wall refers to any set of physiCllt and procedural b1lTriers intended to prevent One member of an org.1ni7.ation. such as 11 law firm. frOm being exposed to inform1ltion r(>.lallng to a tm\t(>.r currently or fOl1l1erly handled by one of his colleagues."''''''· Howllwr, this defense I:~ /Jot /IIllzi,(lble IInder fhe Code {(If Profession1l1

Responsibility!. and it will be OIv:li[able 'under the new AI/lI»II'1111 Ihlles of ProfcssionOlI Conduct only In cer· I ~i n cases involvIng the movement of 100wyers between the government and private law firms." Atlootnote 3. In the final 1In1llysi5. lawyers con· fronted with this type of d hical dilemma ~hou ld consult the ~Plllica.ble ru ! ~s of ethics. the case law. and the advice offered by the Offi ce of General Courlscl of the Alabama State !lat. _

11111

LEGISLATIVE WRAP-UP By Robert

McCurley. Jr,

L.w)'.... Take L••dershlp Positions

Although there are only 21 lawyers in the Alalxln'UI Legislature. which is composed of 140 members, these few lawyers are in the most p(iwerfuIIKlsitions. The 11 lawyers in the Senate chair eight key committees and are viee-chllil'S of flW! more. Birmingham lawyer Rodger Snlltherman chai rs the Stnau: Judiciary. Russellville attorney Itoller Bedford chairs the ~'inance and Thxation Ceneral ~'und Committee that appropriates funds 10 all of state lIovcrnmenl except schools. while Hank Sanden of Sel ma ch"i rs the com· mittee lhat funds all schools. The Financial RUPQnsibility CommitLu is chaired by Auburn's Ted Liltle. Pal LindleY o(

Duller chairs the Senate t:conomic ExpanSion /Inti Trade Commiltee lind is like-chair of two others. Wendell ~Iltchell of Luverne. dean of Jones Law School, chairs the Business and Labor Committee. Charlu l..I\n.ll(ord of ~1 0ntgo",ery chairs the Tourism lind ~Illrket ing Committee, while freshman Senator Zeb Lillie of Cullman chairs the Agricullure and FOTutry Committee. Tuscaloosa attorney Phil Poole is viccchair of t....,o oommillees. The l'louse of Htpresentatives has only ten I"wyers out of its 105 members. however, six of them occupy some o( the lop positions. Birmingham city IIUorney and State Hepruentative Demetrius Newton is Speaker Pro Tem. the number two posi · tion in the 1101.1$1:. Ken Culn of Carbon Ilill is Democratic Majority Leader while Anniston's !'Ilike lIil1 ls I~epubliclln Minority Leader. Bill Fuller o( LaFayette chairs the powerful Jutlicillry Committee. !'Ilal'cel IJlack o( Tuscumbia chnir~ the Election Commiltte that will oversee reapportionment after the nellt census. Iloward Hawk, Arab attorney and city judge. chairs the Ways and f.lellns Committee that appropriates over two billion dollars a yellr to educ;llion. Alt hough lowyw are only 15 percent of the entire Legislature, they will be predominant lIS leaders tht ne~1 (Qur yt!ars. 1.1. Governor Steve Windom, a Mobile lawyer in the firm of Sirote & Permult, continues the tradition that a lawyfr is Rob.rl L . McC url.w, Jr,

Roberl L MCCurley. JI a. tn. d lRlClOr QI t~ AIat.mIo \.tow lnII~lIIf a! I/Ie \..WWtI ...... QI ~ He - . a hili \llldlll1I'~ MId .... OIQI_ lrom

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president of the Senllte, a tradition thM hllS hOld fewexcep' tions. Now Rul ••

New tu le~ will g~rn the procedure of both the 1I0use and the Senate. The House of Representatives, under the leadership or Speaker Seth Hammett, has revi5ed its committee structure giving more power to the commiUee$. These commillee~ are organi1:ed around party lines with I>cmocrats chairing all major committees. Also new this year is a consent calendar fo r speedy action on non·controversial bills. The Senate Hiles placed the power or org;mizin~ the body in the hands of President Pro Tel'll Lo\<.'i!11 Barron. All committee apl)(lintments are now made by lhe three senatoTSwho comprise the Committee on Assignments. Regular So •• lon

The 1999 Regular Session convened March 2nd, The Legisll\lure only remains in session until June 14th. The Alabamll Law Institute has presented two mljor revi5ions: The Uniform Child Cu~tody and Jurisdiction Enforcement Act to govern interstate child custody cases (see September 1998 A/aoomo WU'!JI!r). lind the f.1erger of Business ~:nlilies Act which will allow a bU$im:$$ entity of one kind 10 merge into a separate form of business entity (see September 1998 AfuixmwiAII1!/Orj. I"or more informat ion about the Institute or 3n~ of its proJects, contact !lob McCurley, director, at the Alabama I.aw Institute, P.O. Box 86 1425, Thsca100501, Alabama 35486·0013: fax (205) 348-841 J: phone (205) 348-74 11 : or through the Institute's home ",Ige. u:ww.fow.ua.(.'(/II/(IIi. •

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• PQ ..... " C " , DO D

mediation group for Year 2000

(Y2K) business disputes has been fo rnlcd under the auspices of the Alabama Supreme Court Comm ission on Dispute I~esol u tion and their Center fo r Dispute Hesolution. The purposes of the group include informing clients of alternative dispute resolution (ADRj initiatives at the state ~nd niltional levels fo r resolving '12K disputes and providing trained mediators to a~si~l in mc:diilting such disputc:~. The Y2K problem arose out of programming «Inventions using six digits for dates (ddlmm/w) rather than eight digits (ddlmm/Wwj. These conventions arose for a variety of reasons. including to econ·

omize computer memory ~nd to aid in filling out preprinted forms. As a rc.~ult, 1l\1ny computer programs t1kIy not recognize );muJI)' 1. 2000 as a valid date or 1Tl<1}' interpret the d.lllC M J~nullry I, 1900. In Alab,I1""" the Alabama Center for Di5pute Rc.soiulion has lI~ist ed in estab· li$hing ~ groull of mediators knowledge. able in the areas of business and comput· er law and information technology specif. ically (or the purpose of mediating Y2K disputes, Additional information regarding the Y'..!K f'.tediation Te~m can be obtained from Kurt Miller, Ilakh & Uingham. (205) 226-30\29, or Judy Keegan at lhe Al<1bilma Center for Dispute Resolution. (3J.t) 269-1515. ext. 11 L •

Should This Case Be Appealed? By Forrest S. IAllU

t W;)S lin importllnllrill1. TIle jul)'" verdict '''las like a kick In the hend.

Your client wenl home dCVlIslated. You kept your composure until you returned 10 the office. You llre wrung out ,md depressed. Afew tbys later you pick up the file agolin. b(1\ it represents II bad memory and you would Tillher nol think about the cast: III all. An~er is m i ~ed with wounded ego. Now comc51he hard question, "Sholllff th is CUIIe be uppeul4!t1 ulld, /! :10 , wllat ure thll be$1 is!ue!?" Obviously )'Our client fub the: j u~tice

... there is no such thingas a perfect trial, and tlal! lo/() dops not g uarcllllce

one.

system (aited, and )IOU per$()nally want vindic.1lion (or your vanquished pride. You immediately think of nve "errors" that you believe Me obvious lind which c.lused the unhappy outcome. All signals point to appeal. rillht? Not necessarily. The nw,tter nl)W calls for clear·eyed objective analysis, free of anger and predilection. You must somehow disconnect (rom your emotions andlor .seek counsel from II colle~e who is more detached from tht cast. Even counsel for the lippe/it'll must overcome the euphoria of victory and cons:der whether cir· cumstances dictate heading off all aPl)\!al by .settlement. The.se Wk5 require a level 0( objectivity that is elllremely di(ficult in Ihe ....·ake 0( a harMoughl trial. This is no time for snap decisions. 1hisling one's own cloudy j\Jdlj:ml,:nt (or shooting from the hip) can be costly. One must nrst recogni~e that there is absolutely no ve~led right or due proce~ right to an appeal. and none eMi~ttd at comnlOO law. Does that surprise you? The remedy of appeal is given solely by statute. It may further surprise you that there is no such thing as a perfect trial. and the law docs not guarantee one. It lj:u.lTlInt~e5 only that the proceedings shall be reasonably fair and free of any subsUintial prejudice, "h15 came as a sur· prise to me. because somewhere along the way I had developed the notion that a perlect trial, and a fair appeal. wert every

litigllnt's constitutional rillht. Not 50. In (.iet. the American BM As$OCintion 11<15 dl5tllled the role of the appellate COl,Jrt into the following statement: Scope or Appell..t, Rn'lfW. In reviewin!!: a determination by a trial court. an appellate court should dttermint whether thll court below relied on properly appliable and correctly Interpreted rulu of law, conducted the proceeding fairly and deliberately so that there was 110 sf/bsralltlar pJ'fjlldlrc 10 rh. partl,s, and rested its detennina·

tioo on factual conclusions reason· ably supported by the evidence. It should consider an issue thai ....·as not r;Iised in the court below only where necessMy to preverlt mani· fest injustice or where it concerns the court's jurisdiction or tho,t or tilt court below. It sholl" M.'eNft 0111111/)11,,, there ho.' bHlI a t/I'tlla/ of IIl1bsltmtialjustice or a lIeriolis d,partllNl from (liltoblished prou· tll/fIf. Recognition should be given

to the trial court's opportunity to assess connicting testimony. to resolve conflicting inferences that miAht be drawn {rom the evideoce. and to apply generallegalsUindards to the Po'rticular cirC(lmstllnces .. \ iuuc. Appropriate respect should be gi'X!n the trial court's ucrclse of discretionary authority. AM Commission on Stand.lTUs of Judicial Administration. Standards Relating to Appellate Courb. § 3, II at 19 (1977). (emphasis lidded) APIIrty must have been deprived of II 5ub~ t "n · !ial right or Ilrejudiced by the decision of the lower court for the maller to be reversed on appeal. Perfect trials cannot be l1"d, and due recognition is accorded to the dimculty of conducting an error· free Iri .. 1. Thus, some error i5 permitted in order to favor nnal and effective declo "'MIC HI OOO/ I OY

siom 1I11he Iri&1 courl leveL Oelermlning ~:ll>lleal .W()rlhiness~ is II process of finding an issue lhal in\lOlvts reversible error. Flndlnlll An Appe.I·Worthy Issue The process d deciding whether to appeal requires honest. objeclivt and informed analysis. 11 111 prim:ilHllly U pfOCf!U of 1$SlIfI $flfoctiOIl . which is nol si mply identifying alilhe possible errors you believe wert committed. bsue idt'T/li/icatioll is only t.he st.1rting point for deciding whether II case is 1Ippeal.worthy. Once an appeal.worthy issue is fo und. it Is unnecessary. even counterproductive. to auert all of the other issues. It is far more cffcctive to distill the issues to two or three-a maximum of five-and perh.1ps use the others as "color." nemember the advice to use the "riOe shot" rather than ~shot gun" approach.

Issue selection is one of the essential ~kills of thr' appeUate lawyer's ('I'al'l. I, is 1" (> la y illg of lil t· COl"tI{'t'strme. In my view. issue selectioll is ontl oflhe esse11lilll skills oflhe appel/atl! lau.'/It'r's crafl. /I is IIw lauil1g oIlhe comerslOTll!. Without skillan;l care in the selection of iuues. )'Our ch.lnce of succeu diminishes greatly. lu ue selection therefore should be an inlegral PMt of your decision whether to appeal. Omit this step lind you are vulnerable to the aphorism. "neMiy. fi re, aim!!" The process d issue selection involves an analYSIS of ellch issue with a view of where the court has ~c n , nnd where it is Qoing. It involves critically exalllhling the record fo r prescrvation of the Issue. knowing the st:mdards of review on that issue. knowing the rever$lll rnte ollthllt Issue. and other I)rnctical considerations that are discussed below, Your gool ideally is to find an issue that in\lOlllts all of the fo llOWing (acton: (I)

a ....>fll.preservcd objection.

(2)

a strict standard of review. equitable appeal.

(3) (4)

a proposition that is cons!!lent with recenl prior decisions or trends,

(5)

a higher thal'l avera,!!e reverSo."I1rate. bnd

a worthwhile outcome. The fewer of thest factors, the more problematic your appeal. Keep in mind thatlhe best appealable issue may nOt be the most gillmorous. or the one Ihat bothers you I1l(lst. Remember you are looking for a winner- not a salvt for wounded pride. Determin ing ~ppeal ·worlh ineu is II process of evaluating your likelihood of 5~lcce~ on your best issues. Once you select the best Issues. you then must weigh the likelihood of succe~s 1.gainst olher proctical considerations thlll mayor may not dictate an appeal. At thi ~ poirlt your client docs not need your advoc,lcy or writi ng skills. or your research talent. but your common sense judgment. (6)

.D .

.. ARCH . . . .

Ten Factors for Assessing Appeal-Worthiness 1 . Consider the possible Is.ues

Begin by listing every possible issue, no matter how minor they are. This gets you in the rllooe of brnlnstormlng to create a 'shopping list' of potential errors. At this poi nt. you should leave nothing out. Think of both the novel and mumllrne. Be willing to challenge established precedent. I( nn issue was not adequately rnised, and the record isn't closed. think of ways to raise it while the record is still open. At this point )'Our list of possible appealable !ssu4!S may be Qu ite lengthy. Sometimes it helps to group th4!m by c<ltegoritS. such 3S pr4!trial. evidence. dirccted vtrdic\' and so on. As you list lhe issues. it is not too early to start trying to state them In t4!rms of how they mighlllppenr in II brief or argument. Your gQ.llls to dt....eJop a tightly worded ~Ia temc llt of the issue. a "grabber." Keep coming back to the lis\. allowing other people to review it. eSllecially persons fnmillar with the proceedings. 2. Conslde , preserv.tlon 0' the I.sue(s, Now begin honestly analyzing whether each issue was ade· quately preserved. It is best to confront this now. rather than risk being embarrassed later by an opinion that disposes of )'Our argument (or not being adequately raised. Ask how the record on this particular issue will look to the apilellate court. It is important 10 view lU(le preservation from the court's per· spective, not )'Ours. Cenerally speakinll. issues that are not adequately preserved in the trialtourt' have little charlce of being reviewed on nppeal. This process of annly.dng issue pre5ervation can sometimes be uncQmfort&blc, but It requires total objectivity lind cllndor. This i5 no time for trial counsel 10 be unduly sensitive. The willingness to be candid about whether an iuue W35 adequately preserved is a mark of profeuionlliism. Clossing over II record problem may only prove expensillt and embarrassing, and damage lhe credibility of your appeal . Why $hould the court trust you on anything else, if )'Ou are not "lndid about the record? If )'Ou should choose to assert an iSSlle on a weak record, then Ollenly telling the court what happtned. warl$ and all. may actually win you some credibil ity poinl$. There is something powerful and persuasive about beingcllndid nbout your wCllknuscs. but ninny lawyer~ find this dimcult. II Is best to acknowlcdQe problems:lt the outset :lnd show the cou rl why you !tllillre er\ti tled to relief. Even if the issue wasn't perfectly preserved. don't eliminate it from the Iist)'Ct. The "not raised below" rule serves n'\llny valid purposes (promoting finality of judgments; avoiding sccood· guessing trial judges on iuues that \O.'ere never presented; usin«

Vi~w

issuc preservation from the court's pt'rspective, not

y OI/I' . ..

the trilll court to sharpen the i"ue). Ilowever, there ilre certain exceptions that scr'netinws allow the appellate court to review issues first rlli5td on appeal. There lllso lire tKamplu of cases that were decided on issues not fully rllised in the trial court. Bear in mind such caw as Armstrong v. Rog(!rs Outdoor Sporls. wherein Ihe Alabama Supreme Court ordered a "renlllnd for cure" lo llilow Ihe appellant to raise an important constitu· tional issue that was not adequately presel'\led in the trilll court. If the record is nol closed. think of ways 10 adequately raise the luue before filing thl;: appeal. Otherwise, keep the issue on your list fo r now (noting the record problem) lind llnaly;:e it with 1111 the othen. In the end. howcver. II problem with the record generlllly suggeslJ the issue has a low probability of success on appeall1nd is not appeal.worthy. 3, ConsIder the St.nd.rd 0' Revie w

In the author's opinion, this Is the single mosl important and most overlooked aspect of deciding whether to appeal. /)ef(ml1lil/IIU w/Jo//wr a case is oppc(I/-u;orlhyls (wl(lam('11tal/g (I process of issur! lelecl ion. and you cannol fully evaluate the

merits of an issue without considering the stnndard of r(-'view. The standard of review is the formll l:l that determines what powcr the appellate court has to rule in )'O ur fallOr. TIllis. the review ~umdard Will have as great a bearing on the disposition of the appeal M Ihe merits themsel\'es. if not more so.

The standard of reviewis the formula lhallit>fUH'S the power of lhe appellate coml to rule in your favor, By determining whal review stand:trd will 1\lmly. yOu will he ilble to better evalmte the likelihood 01 that issue's success. The process of issue sel«:tion will be more informed. and your briefs and arguments will be more tightly focused and mort persuasive. Equllily u important. your credibility will be enhanced by 11 demonstrated aWiU'eneu of the court's constraints. which am be innuentilll in shaping the final decision. For example. if the stand:lrd requires viewing the l'Vidence from the opponent's perspective. and you keep in~istillg upon reciting facls faIlOrable to your client. then your client may be Impressed with your advocacy bul the court will not. The standard or review is what shajli!s your Mgume!l!. [t defines the playinll field. WhM a pity to be pl:lying by rootb<lll rules. only to discover)'<lu were on a bluketbal1 court. Belir in mind you sometimes can shape the Sl3ndard of review, lind hence the cOllrt's final decision. by how you define the Issue. Every good lawyer for the appellant will try to pre· sent the issue in such a way as to climb the ladder or review to obtain the st rictest stand/lrd pQssible- preferably the d4! '1CH!O standard. By "climbing the ladder" on standard of review. you incre:lse your chllnce of success dramatically because the cou rt has more pcM'cr to grant relief. An example is the "abuse of discretion" stllndard Involving an evidence ruling, Itecognize thllt some trllli court decisions are entitled to broader discretional)' review thon others. The decision whether to permit an expert to testify i$ almost never

Byclimbing the ladder on standard of I'f'virw, yo",. c/H",('I> of sfI(,(,('s,,, 011 UPP('(l/ ;1I('rP(t se,., dromwicolly reversed. whereas the admissibUity of certain ophlion testimony by that expert may be contrill)' to certain legal guideline~ in recent court decisions. The court hM wider latitude In the first instance than the second, Ily demonstrating that the trial court's ruling involved pure legal error. you can euentially convert the Mabu~e of discretionMslandarcJ to a (/e IlOVO standard. Tht chance of rMBaI goes up. Another tlUIrnple: Appeal from the trial court's refusal 10 grant it remittitur. I)nes that triggtr the traditional "abuse of discre· tion" standMd? Not if you can show that the trial court misapplied the Gn.,('11 Oil or BMlVfactors. Ironically, the (,(('(.'11 Oll system has essentially converted remittitur issues from "abu!\t of discretion" to pure legal error (ria /lO/JO review) dCSllite the striking down in Armstrong of the statutoI)' d<ll1oVO :lJlI>eal stllndi!rd, because the trial court's discretion now is constrained by various lego,1 standards-at Ie-lSI 12 "faclors" Ib.,l must be considered. The scOpt of discretion is therefore somewhat more limited, Many courts require that Ihe parties set forth Ihe applicable standllrds of review at the beginninJt of one's brief, The federal rules rrquire Ihis. If you arc in such" court. do nolsimply recite a rote standard from a recent case without fi rst t.uefully analyz· ing whether there is some nuance of the i»ue that cnHtles)lOu to "climb the I:lddcr" to a stricter siand.:lrd. The Alabama Rules Gf Appellate Procedure presently do not require /I statement of lhe review standard. />105t good briefs nonetheless include 11 dis~lIS5ion o( the review standard in their argument. 4 . Consider the affirmance r.te

Another aspect of determining whether a case is appeal.wor. thy involves trying to determine the reversal rate of ca5ts which include the iu ues)lOU propose, based upon the appliC.lhie $tandard of review. In some instances statistics are avail· ~ble from thc Administrative Office of Courts. In others, you must drllw upon your own base of experience in reviewing the court's decisions. Many experienced appellate lawyers already have an instinctive knowledge of the likelihood of SUCCe55 under various st:mdards from il genera l familiarity with the court's decisions, For example, obtaining a reversal of tin Qr/! tenus finding that is sUllported by at least some evidence i~ virtually impossible. Obtaining a reversal of:l discretionary ~c\i on . standif1ll alone. is almost u unlikely. The data collection system of Ihe Admini5tl'lltive Office of Courts now makes it possible to know the statistical chance of IUCCCU in many situations that previously Involved guesswork. 11lis is a helpful scrvice to litigants which, in Iheol)'. should reduce the number of Ilppcab ·th.11 arc filed. The parties are more likely to resolve the case themselves where the oulcome is more predictable. An experienced appellate Ill\l')Ier can take the statisti· ca l figuru lind fllctOf them upward or downward. ba~d UI)()!l the as.sessment of other circumstances in the CIl5t. Sometimes it is possible to do )'O ur own statistical research by computer. such

AS tailoring a qt.ery that includes, for example, the Yo-ords "ore tenus" nnd "re\'tJ"SetJ'" and "date (l996),HThis kind 0( information will help)lOU in advising )lOur client whether to appeal.

(actor may not govern whether to appeal or not, but it is a (actor to help evaluate the likelihood of success. ju51. as in evilluating trials. Nobody would evaluate a trial without considering the attorneys. and the $ilme is true in appeals. Are you in it dog5 . Consider the court fiAht with Snoopy. or the Red Haron? II should make 00 difference Iheorctic.1I1y. but practically it does. I.ook ill the trends of recent decbiollll from the appellate court Most appellate judges re ..dily admit the quality of represenand ask not only whr:re the Illw is. but where it is going. I;':vm if tation does mllke a difference. Suppose your opponent is highrecent precedent is against you. con~idr:r the court conlposition. ly knowledgeable o( the court's decisions. schooled In the legal ,uld how changes mlly have affected )'Qur issue. The proce$$ of issue. ski lled In the art of "counting heads" may sound appellate adYOC/lcy, anll has a overly simplistic but it is realisYOLI reputillion for candor with the tic. Comider the following examcourt. That opponent knows ple. The Unitell States Supreme 0 ,- th e Hed !Ju,.o,, ? how to win appeals, and will Court issued an opinion in Aeill" make )'Qur task very difficult. l.ife IllS. Co. Ii. LoI'Qie in 1985 that was the ~clllrion call ~ to Me If. on the other hand. the opponent has demomtrated total constitutioNI challenges agtlinsllargt punitive dalllolge awards. confusion On the legal issues and has no substantial experiThe court ",we every indication it was prep.lred 10 announce ence in handling appeals. thai may make a difference. some standards for punitive damages In civil C.l$eS. Since then Vou. likewise. must honcstly cvaluate yourself by the same five justiccs ha~ 1~1t the bench-Berger. Powell. Brennan. stllndards. Are you 5uffiderltly detllched from the cast to be t>1l1rsl'lllII, and \\11ith'll1 of whom had wrillcn in faV()r of $tancandid with the court? Are you sufficiently con\ersant about !lards. It therefore is not the ~1me courlth:d fir5t adllressed thOlt the /eflOf iuue! thntlhe court cnn look to you for guidance in is.~ue in 1985. It was more Ihan a Ilccalle before the court finally resolYing the case? Can you avoid Illpslng into jury arguaddressed 111.11 issue. The point is, one must exllmlne the ments? Are you diM:iplined enough to present yllur appeal changes in the court. and not merely rely upon yesterday's opinwithin the proper standard of review? Do you have enough ions. in determining the likelihood of success on 11 given issue. time in your busy schellule to prepare and present a quality For these reasons it is import.lrlt-tven vital- to know the appellate brief and argument? direction the court is leaning on the issue you would raise on appeal. There is nothing wrong with seeking to overrule a 7 . Consider the e xpen s. 10nA line of precedent. but your chances of success are obviously minim,,! unless you have detected a trcnllin your direcAn obvious facto r is the cost of an appeal. Vour client needs tion or n receptlyity on the court to your arAument. If the anlllleserves to know this in deciding whether to liIe an prece~ent is supportive, bullhc court i~ trenllinQ UII'(I,II from appeal. There (Ire seyeral things to consider. jlirst is the cost of yOur I)()~ition, thill should figure s tron~ly ngnlnst Ilppelil ing the prcliminariu- liIing the notice, designating thc rccorll ilnd particular issue. 50 on- things that take a surprisinRly large amount of lime but often are fo rgotten in estimating tht cost. While thou func8 . Con side r the equities, parties, lawyers tions often call be handled by a skilled legal assistant. it is rare that such details do not require some deMrce of the appellate Always consider the nature of the parties. the lawyers. and lawyer'. attention. the "equitllble appeal" o( the facu. One eltarnple inYOlves a Seconll is the availability and cost of an apPfal bond if you mother who los! her daughter to cancer. and who sued an are appealing from a money judgment. Such boods are insurance comrany that denied a claim of $ 1.000 in cancer becoming harder to obtain. as fewer insurance companies now benefits. The jury awarded $750.000 in punitive damages. offer them, and the premiums are higher. The bonll surety which the trial court set aside. The npneal was argued in front commonly requires a financial statement. and sometimes of a live audience al the University of North Alabama. Because requires collateral. II illmost goes without saying thllt if Ihc of the C(luities. the insmer's action appeared callous ilnd indif~llPcal is 1051. your client will be obHgilled to pay the full ju~g足 ferent. Thc court. in a poetic opinion usln" thc illu~l rati on of menl plus ilny inlHest and penalty from the date of judQmenl. the "widow's mite." reinstated thc rull amount or the judgAnd I( there is any default. the bond ~u ret y will look 10 your ment. Although the in$urer'~ legal arguments wcre ClCtrcmely client for indcr'nnilication and will remember)'Qu (the attorcompelling, the equities too strongly favorellthe plaintiff. ney) the next time you sttk an appelll bond for l client. In Another case involw:d the OyStermen 0{ the Alabama gulf coast some instances it 15 simpler and cheaPfr to Simply post a cash who sought protection of their right to tong for oystcrs in Heron bond with the clerk in an interest-bearing account. thereby Ilay. The riparian land owners had poy,'erful lcQ31 argumentl for forestalling execution and M1ying the cost of the appeal bond. exclusive ownership titie to the bottom lands in the bay. That Finally. there are times when your client cannot post an particular bay, however. \.I.'as the only foul Yo'C,lther refuge (or the appeal bond of any kind. and you must face the reality of fightoystermen- their only means of livelihood during the winter ing execution of the jullgment while prosecuting the appeal. months. The bri ~ f5 and oral MglJment by the rip.uian landownFigure th~t cost as well. ers wcre oullilm'Kling. but the equit ie.hlnd Ihe ore 't'llllS Another important cost factor isllw expense of preparing rule- wcre on the oystermcn's side. the record hself. including a transcript in some instances. Also The process of evaluating altorneyll milY SQund cr1l~~. but it is cOrlSider the lime and cxperlse of reviewing anll studying the important 10 consider the quality of counsel on each side. This

Are

in a dog fight with Snoopy?

""-......

record. which is always lime consuming If done properly. Of course. the largest expense typically will be Ihe time dl.'VOled 10 research lind preparation of the brids lind preparation for oral argument in wille cases. 8 . Consider the potential res ult Never file 1111 appelll without knov.'ing whal kind of relief the court is most likely to grant. Although Ihis sounds ob\'ious, it is surprising how mtlllY IIppellalc particsllpparently don't real· i,e what relief they are likely to receive if they win, and the possibility of a "pyrrhic victory.fl It makes no sense to fight II baltic Ihat is meaningless, 9. Consider the client This is sometimes the most difficult factor. especilllly where the client is unsophisticated in litigation. Sometimes tht client truly cannot tolerate the result, because he cllnnot afford the judgment. or cannot sluv ive without the relief sought. In those instanccs, there is no alternative to nn appeal if the case cllnnot be ~C lt lcd, The more difncult dccision~ comc in two vJ rielie5, One is where lhe case is not appeal·worthy, butlhe client is Insistent. He either is putt ing off the incvitllble or trying to 5<lve face ("go down figh tinf) and the opposing parly refuses to com· promise. Those cases always challenge )'Our professionalism. 11 seems many appeals could De avoided if the opposing parties would recognize the chance of reveTSIIl, and be a liUle le5$ stingy, thereby allOWing the loser to settle with dignity. Another difficult decision involves lhe case lhat cOlltllins IIppcal·worth)' issues but possesses other rellsons that weigh agai n ~t the risk of an u n f~lI()rab l e P\lblished opinion, There is a saying thlll "di$crl'lion is the better p.lrt of valor," and some· Limes the rl5k of nmking bad IllW on ~ P<lrLicular issue is worth buying your peace

10. Con s ide r the Importa nce to s ocle ly We arc. in n)llny ways, public $Cn'tlnts. As "office" of the courtfl we have a duly to COluider the public IUtU!l: of our job. 11 sometimes be(alls us 10 make decisions on whether to raise an issue that will sh:ape the 1111'.' in sorne ifnportant way, Thert rna), be an i5.'Iue that is repetltive in nature but does not onen rellch the appeal stage, or an issue thaI will establish an inlportant legal precedent, thereby Alving guidance to the bench and bar, and the public llllllrge. Those thin~ weigh in favor of llPpeal because you are helping dl'V(:loll the law for the benefit of all society, even if you don't ultimately prevail. Some clients are VCI')' ttcepti\'t! to thi:Hhey sec the big picture-while othen are not. Conclusion The decision whelher to appeal a case should not be approached harhazarllly. but as a crallsn'llln would a[lJlr<lo\Ch con· stnlctinR a fine building, the cornerstone being the procfU of i$Sue selection, Onl)' in this way will you assure youlklf of the bc"t standard of review, and a more l'I.'Ceptivc Dudience, •

REFERENCES

littnlllll, Pf8cIIc8 ~"1Or ~'" en.t WJ1\InII, 1II1II122 t~ 11m): COmrntnI. A/lIMIII~ SIar\(IAtd aI RdYiew FrIoInd or FGot1, 13 AmJ.lHoitAd,. ' (IMt), &om.MII, 8wldMM0I~ RfyIfw. l a ~~ ( I_): H!Mn;. 1M MOIIIw ApjMIr.IllI1tW, 12 A.B.A JoInIIoI11 ( leN), IIttnnIn, ScandMII aI~" "*"-- 33 o.tLJ. 371 (1"); GocIIoId, ~ ~ _~t.IInuIM.~~L.IW. eol (lin)

FOITe.t ' _

s, u n.

_ 1 S.

La n ,

...... fI\OkMf In ... IoIoDIIt IlM'\d

I'Io!c. Llldvllld, YIW A w...., PC He II. ~ 01 lilt SIanOoroQ COmmon.. on AiaUlnlll ~ 01 ~IO 1'foI;1'duI. IIf\d ,~ "PI_tl cI4ntI n IN! l1li1. II!Id 1.,.,.,., ...ppoalll QOUIIJ 01 AlIII»mII

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, 1999 to chanqe it and still get it in the 99 directory. MARC H , " I I '"

The Constitution vs. Public Safety fly Non. Debra N. Coldstein and Stephanie Goldstein

esse Timmcndequtls lived across the street (rom !Cvcn-)'cM old

Megan Kilnkll in Hamilton

Township, New Jersey. On July 29, 1997,

TimmendcQulls. a convicted sex o(fender, raped ilnd mllrdered Megan in his home. The New Jersey Assembly declared alegisLllive emergency ilnd cnill;t¢d Megan's Law, N.J. STAT, ANN § 2C:7-8 (We~t 1995), within th ree months of Me!l~n's rape and murder.

Mcg/Ill's L.~w requires convicted sex offend ers to register with law enforcement agencies llntl requires 3gencies to notify various segments of the public of

the ph)'sicalloc~lion of the offenders. As a result of a natiollllliegisltltive frenzy to protect other children (rom similar brutal and senseless deaths, two types of sex offerlder laws gerlcrally were p<lsscd. All 50 Sl.ltes, and the federal governmcnt. adopted statutes re(luiring sex o(fcndcr regi~tr .. tion, .. nd many st.. tes also passed Icgisl .. tlon rCQuirinl:! public notification of the regi strMion irdormfltion. Alabama passed a Community Notification L.lw in 1996, which req uired law enforcement officials 10 notify communities when a convicted sex offender W(lS released (rom prison and pl;mned to move into the neiJlhborhood. Between 1996 (lnd 1998, over 600 notice~ wer~ mai1~d to Alabama comtllUililies. On May l. 1998, the Alabama Legisillture p..ssed .. modified Alabar'lla Community Notification Act ' This new version incorporates sugges.. ~

",ARCH 1000

tions that arose after enactment of the original legislation, Chal1ges from the 1996 law include: verification thflt the sex offender is gOing to live at the address that he/she gives law enforcement; imposition ofa permlty on the sex offender if he/she falsifies the address at which he/she pl;ms to live: requiring the Department of Pardons and Parole to send out notkes when (I sex offender is paroled or when a SEX offender or parolee from tmother stale mOves to Alabama: ~cnding nolific.. tion immediately to the victim or family of the victim find to the comm unity of the last known address of a convicted sex offender when he/she escllpes from prison: notifiClllion of schools, dllycllre or child care cenlers when a convicted sex offender plans 10 live within three miles of the facility: and the establishment of an Internet web site (Itlu'u;.gsiweb.net) where all convicted se~ offenders in Alabama arc listed. By comparison to Its predeccswr, the !998 version of the Alllbllma Community Notification Law strengthens Alabama's registration and notificlltion pro\,isioI15, The A!abrll11a Legislature explained its changes to the law in Section 1 of the Act. Section 1 ciles the danger of recidi vism posed by criminal sex o((enders and the paramount (oncern or interest thai the government ha5 in protecting the public from sex offenders. The Legislature further roted thllllht efforts o{ law enforcement agencies to protect their communities, conduct

investlgations, and quickly apprehend crir11ir1al sex offcr1der~ are Impaired by a lack of information about the Sl!lt offenders within their jurisdiction, Thus, the purpose of the amended legislation is to better protect loclll commu· nities, to assist in the investigation and tlPtlfehension of sex offenders, and to lesson the likelihood of child-related sex crimes by providing priv(lte citi?'ens with relevant information. This Mtide will first present a s~cifk: overview of the si:.lutOry re{tuirements of Alabama's new Community Notification l.aw, The SCC()r1d part of the article will .1Il1l1)'ze Alabama's law in the context of constitutional challenges to other existing state sexual offender laws, with particular emphasis on the Ex Post ~'acto Clause and the impact of registration/notification statutes in terms of the balance of public security versus puni. tiven~5S.

Alabama Community Notification Law' In Alabama, § 15.20.21\a)(4) provides

that II cri minal sex offender is a person cOllvicted of a criminal se.~ offense. A conviction is II determination of guilt 35 a restllt of II plea, trial or adjtldication liS either a youthful offender or a delin· quent. regardless of whether adjudication i~ withheld. Section 15-20-21(5) lists as criminal sex offeme$: Pirst· or ~tcond-degree rllpe; first- or stCOlrddegree sodom)': ~exual torture: first- or second-degree sexual abuse; first- or

secOlld-deAree promotion of prmtitution: vioilition of the Alabama Child I'ornograph>' Act; enticement of /I child to enter a vehicle, room, house, office, or other place for immorlllilurposcs; first - or second.degree kidnapping of II minor, except by I parent; incest when the offender is an adult lind the victim Is II mInor; and .oolicitation of a child by computer for the purpose of committing /I sexual IIct l nd transmitting obscene material to a child by computer. or any solicitalion, lIttempl or con. spiracy to commIt llny of the offenses previously listed. In addition. any crime committed in another state, or II federal. military. Indian. or a foreign country jurisdiction which. if it had been committed in this state. ~'ou ld constitute one of the above listed offenses. will subject lin Individual to Ihe registration and notification rtlluirements,

any criminal sex offense conviction, the responsible agel\cy Is charged with requiring the criminal offender to declare in writing the actual living address at which he or she wIll reside ul>on release. An intentional failure to register through a timely written declaration shall CQnstitute a Class A misdemeanor.

Registration of Criminal S.xual Offender. R.I •••• d from Prison

The person or government entity charged with obtaining Informll\iort from a criminal sexulIl offender before release and then providing thM infonnllHon to the appropriate police or sheriffs dep.utment is denClted as the responsible agency. Section 15-20·21(8) provide$ that the ruponsible /lgency for a person being released from stale prison is the Department of CorrC(tion~. The county sheriff is respo!l$ible fo r InfQrmation pertaining to Indi\iduals being released from county jail. while the municipal police department is responsible for munIcipal jail releasees. The sentencing court is the responsi. ble agency for a criminal sex offender placed on probation, including condlHonnl diM:hJlrge or ~l[lcOllditionll ! dis· charge, without any sentence of illcar· ceration. By definition, a sentencing court is a court wh~e determination is competent under state taw. but it need not be the SlIme court in which the criminal sexual offender originlilly Wil$ convicted of the underlying criminal sex offen~e. If an individual is being released from a jurisdiction outllide of AlabMla, but is to reside in Alabama, the responsible agency is the Department of Public Safely. Procedurally, 30 days before the release of a criminal sex offender fol'

R•• pon.lbl. Agency DI.elosuN R.spon.lbllltl •• If the sexual offender declares an intent to live within the boundarltS of Alabama, the responsible agency has five days from lhe date of the writtel\ declaration to notify the Attorney Ceneral. the director cJ the Department of Public Safety, the county districl attorney and sheriff where the individ· ual plans to reside, the chief of police of the municipality where the individual plans to reside. and tht Alabama Criminal Justice Information Center. In turn, the Alabama Criminal Justice Information Center is charged with notifying the Federal Bureau of Investig.1tion of the datil it receives. In order for lhh to be an effective tool. the legislation requires that the responsible agency illclude all information it possesses that ...,'ould identify and trace the criminal sex offender, This includes, but

is not limited to, daUl pertaining to each sex offense history or pre-~ Ilt ell(e investigation of the offense. fingerIlrint$. and a current photograph of the criminal sex offender. The responsible agency requirements are similar if the criminal sex offender declares an intent to live outside of Alab.1ma. Under those circumstances. the responsible agency has five days (rom the written declaratio:1 to notify the Alabama Crlminallustke Information Center Dnd lhe director of the Department of Public Safety, Attorney Ceneral. or design.1ted stllte law enforcemenl agency of the state to which the offender has declared an intent to move. Again. the provided notification must incl\lde aJ much documentation as possible to permit Ihe identification and tracing of lhe criminal sex offel\der. Once the criminal sex offender is released into general society, he or she must reside for a minimum of 30 days /It the address stated in the declaration of intent unless written approval is obtained from the sheriff in the county of re~iden cy. If a change of residency is desired in a municipality with Dpopulation in excess of 5,000. wrlt'cn approval must be obtained frOm the municilKllity', chief of police. The reporting provisions stated above lire the same if the criminal sexual offender changes residentiallocation after the mInimum 30 days or with prior wrillen approval. Finally, lhe responsible a~ency is charged with cooperating \\;th the director of the OelKlrtment Clf Public Safety 10 enable Ihe department 10 prepare a criminal sex offender release notification fOrm. Any informat ion col· let ted or maintained by the Department of 1'ublic Safety, II sheriff or a police department. as pre:!tri~d h1 the Act. shall be for the purpose of tracking the whereabouts and mo~'tments of criminal sex offenders in Alabama. The Informalion can be disclosed to federal. state and local criminal Justice agencies for law enforcement purposes Mid for com· munity notification as provided by AIDbama'~ Section 15-20·22 or by a sim· ilar codification from anothtr state, It also CM be disclosed to federal, state. and local governmental agenciu that are responsible for conducting employment related confidential bllCkground .... IIC H

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check$. Since the effective da.te: of lhe law. this inforrnation has be:en available for crir'l'lir'a.1 justice purp(lses through the Alabama Criminal Justice Information Center network, It became Ilccessible through the ACJIC/NCIC network on January 1. 1999. Verltlcatlon Provisions

The 5tatut e contains verification properlilinin!!: to offe:nde:r~ who have been relellsed from prison. Thi~ provisiol' may have been added because of 1111 incident in Birmingham. In Oclober of 1997. a convicted rapist. serving time in a Florida prison, registered his second cousin's Birmingham address as his place of residence upon release. He did so without her knowledge. Police began to distribute flyers waminJt that a sex offender liv~d ~t this ~dd ress. The rapist's ~econd cousin had to post a sign I'm her mailbox stating that no sex offe:nd er lived at that addresS. As a result of this situation, the IJirmillglwm News publishcd an editorial calling for a change in the Irr.v to require 1)Olice to verify addresses provided by offenders. The Quill, September 1, 1998, Sixty days after 1m individual's most recent release, and on the anniversary date of iI criminll sex offender's birthday occurring more. than 90 days after release, except during ensuing periods of inCilrcerati(ln, the Departmcnt (If Public Safety ~hall mal! a non路forwardable verificati(ln fo rm to the addre$s of the criminal sex offender, The designated offender has ten days from receipt of the verification fo rm to present in person a completed form to the sheriff, or where applicable, chief of police, The signed (orm shall attest that the criminal sex offender stili resides at the designated add ress ~nd that the individual is in compliance with the re5idence restrictions. At the time that the form is presented. the applicable law enforcement official will obtain finge rprints and a current photograph, Within 30 days of the annual date of address verification. the sheriff or police chief will submi t W!rification of the criminal sex of(ender's addreis, pictures and finger. prints to the Department of Public Silrety, Failure o( an indiyiduallo appear in ptrSOn with II tompleted verification form within the specified ten days or to vi~ion$

114

.. AJoCH

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refuse to permit finlle rprinting and a photograph is a violation of the statutory provisions. As such, it constitutes commission of a Class C felony,

Agency Notification Situations Other Than Prison Release Section 15路20-21 of the Alabama Community Notification I.aw also provid~s (or three instJlnces for notifiC1Ition, other than rele~~e from a penal institution. The three instnnces are eSCllpe, ptr.folt Of probllIiOIl, or whtn tht sentencing court does not impose a sen路 tence of incarcerMioo, In the instance of an escape from a .Itate or local prison facility, the responsible agency is charged, within 24 bOllI'S, to notify lhe Oepartment of '>ublk Safety, Ihe sheriff and the chief of polite who h3d jurisdiclion 311 he time of the criminal 5f:X offense conviction. Such notificiltion musl include the !lilmC$ ilnd lIlia$es of the: criminal ~ell offender. the time remaining to be served, i( any, on the full term for which the individual was incarceratetl , and tht nature of the pun路 ished crime, Fingerprints. a current photograph, lind <a summary of the of(ender's criminal r~cord is to be transmilled a\ the same t me the other information is provided. As of June 30. 1998, the Board of Pardons and Paroles h:IS been chfirged wilh notifyin" the D~part men t of Public Safety of the name ,md a ! ia~e~ of any crirllinal ~ell offender who is on pa.role or probation. The notification also must Include the address u which the offentler resides, the alTIOUrlt of time to be served on parole or nrobation, the nature of the act that conviction WtlS based upon, and a summary of the indiyidual's criminal record, In ~dd ition to those on n,lyole or probation fo r criminal acts in Alabama, the ilpplicable definition of II criminal sell offtllder Is broadened to include a person who resides in or enters Alabama who hM been convicted in another state, or 11

fed eral, military, Indian, or foreign country jurisdiction of a crime which would h<lve been punishable as a criminal sex offense in Alabama, Once idenlified, lhe Bo<lrd of Pa rdo n~ lind P~ roles is requi red to di rect each criminal sex offender on prob:ltion or p~rolc to rt]X1r] to tht ap!lro]lriate law enforcement agency for fingerprinting and photographs that will be .lent to the Department of Public Safe ty, The final area of r~gislration involyes indivitluals who a sentencing court does not sentence to incarceration for thei r criminal ~ex offense conviction. In thi$ instance. notific,ltion shall be provided by the responsible allency within 24 hO\lr$ of r elell~c. The regulation does provide thM afte r conviction, the sentencing courts shall order the crimina l sex offender to submit to the sherif( or probation officer a DNA sample that will be forwnrded to the Department of Forensics, Public Notification

The notification provisiOfls. rather than the registration provisions, of MC!l<ln'$ ],Alw h,IVC been much mOrt vulnc,...ble to constitutional ch,dlenlles. fhe Alabama Community Nolificatioll Law procedurally distingui$hes between the cities of Birmingham, Mobile, Huntsville and HOIltllomety. and cities in AlabJma with resident populations of 5,000 or more or 5,000 or less, In all three instances, the public notifiCiltion procedures must occur within five days after the notification by a reSPOnsible allen,y of the release of any criminal sex offender. In Birminllham, Mobile, Huntsvil le and Montgomery, the chief of police is charged wilh notifying, through a community notification flyer. or any other method reasonably expected to I}rovitle notification, all person! ....ho have 11 legal residence within 1,000 feet of the stated residence of the released offender, and all public and private schools, licensed daycMe cenlers, and other child care facili ties within three miles of the released offend er's dedilred address. Notice c.ln be provided by mail, hand delivery, Internet po~ting,local r\ewspaper publication. posti ng, or filly othCf available means. Cities with a resident population of 5,000 or more require the chid of police or, if none. then the county sher-

iff, to notify all ptrsons having a legal residence within 1.500 feet of the declared residence of the released offende r, Notification shall also be provided 10 1111 public ami private school~, licensed daycare centers, 111ld IIny other child care filci litiES within three miles of the convicted sex offender', stated resi· dence. Again. notIficat ion shall be made through community notification fl)oe r and any other means reasonllbly expect· ed to provide Ilotificlltion to the public. In unincorpol'lll~d ltrCliSand in munici· palities with resident popul;lt lons of less than 5,000, the sheriff of the county in which the released criminal sex offent1er intends to reside is responsible for notifyin" all persons who have a legal residence within 2,000 (eet d the declared residential address. Unlike the more densely pop. ulhled llrea$, public and privllte schools, licensed cL"\ycare centers, and other child care facilities within six miles of the declared rtsilknce will receive notific.,)tion of the offender's rtlease through a community notifiQlion flyer SC!nt by regular mIlil or hand delivered, as W(!II a.~ any other mellns rfasonably txpccted to provide notification.

Convicted SexulIl OHender Re.trlctlon. and Re.ponslbilitle. Pursuanllo Ihe Alabama Comm\mity Notificlltion Act. any criminal sexual offender, whether having served time in prison or not for conviction for a sexual offense, always remains subject to the requirement that other residents living in the specified proximity be notified of the offender"s presence. 1\ is important to note that individuals who Yo'ere convicted prior 10 Ihe 1998 implementation of the 1l0\lfication law also are requi red to regisler. Once registered, the notifi· cation procedures required of police and sheriffs will be applied in the s.1me manner as if the offender wu beln" released (rom incarcel'lltion. Individuals who haw been released (or more thlln 30 dllYs IIrc required to give 30 days written notice of llJl interlt 10 change legal residency, Ills noted that notwithstanding Ihe provisions of Ihis act, a criminal sex offender is detmed to have established II new resi· dence during any period in which the individual is domiciled in a location fo r five co rl~ec utivc day~ or more.

The Act also places boundary restrictions upon an individual's choice of residence lind employment. Specifically, no criminal sex offender is allowed 10 e~tllblish il residence or accept emilloyment within 1,000 feet of the properly on which any public school, private or parochial school, lictn~ed d1)'Care center or other child care facility is located. The offender also is restricted from establishing a residence or otht r living accommodation within 1,000 feet of the prOllerly on which any form er victim or the victim's immediate family resides. Chanltcs in property within 1,000 feet of Ihe sex offender"$ registered addreS5, ..... hich occur atl.er a criminal sex offend · er u tablishes a residence or accepts employr·nent, shall not form the basis (or find ing thOlt a criminlll .sex offender is in viollltiOrl of the residence restrictions set forth in the Act. [n terms of interacting wIth former victims, the Act prohibilJ a convicted sex offender from willfully or kl\OWingly being within 100 feet o( any former victim, except as where provided by IIIW, Furthermore, visual or audible sexually sugge5tive or obscene "cstures, sotlnds

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or communication directed al or to a fo rmer victi m also IIrc prohibited. Convicted 5e~(I,,1 offenders ill~o aTe nol allowed to establish residency where Ii minor resides. Notwithstanding the slaled po~ition, a crirrlinal sex offender may reside with a minor if lhe individual is the parelll of lht nlinor, unless one of the following conditions applies: (I) the crimi mil sex offender's parental rights have been or aTe in Ihe process of being terminated as provided by law and (2) any minor or ildull 'hild of the criminal sex offend er's was a victim of a criminal sex offense commillcd by the criminal .~ell offender. Tht Act IIlso provide~ thllt a criminal sell offender shall not be allowed to change his or her Ilame and that any notice prOVided to the commu· nity shallllot contain the name or any other information identifying the victim, A knowing f"ilure to comply with ;II1Y provision of § 15·20,21 through § 15· 20-24, except § 15-2(}-2 1(b)( I), will constitute a Class C felony. The final provisions of § 15-20-24 rcpeal all law~ or part$ of laws that conniet with the newly amended act. Section 4 of § 15-20·24 makes the provisions of the Community Notification Law severable. Thus, if any part of the act is declared invalid or unconstitutional. the remainin~ parts will remain valid and enforceable, Constitutional Challenges The impoTt(lnce of the ~e\ler~ bility provision of § 15-20·24 rests on the number of constitutional dllll1engC$ IhM h~ve been rrlad~ ~gair\SI M eg.~n'$ Laws. Alleged areas of violation of constitutionhl l)roteclions have ir\Cluded the Ex Post Facto cI~use, double jeop. ardy, equal protecticn , due process, and bill of attainder, /I w:dely litigated Chbl· lenge involves the i': ~ Posl ~'acto clause. Ex Post Facto lalY~ have been defined as laws I)<lssed after the commission of an act which rc t rosD~eti\lely chanlle the conseq\J e n c~s of the act. The Con~ti t ution, in two different d mse5. U.S. CONST. ArUcie I. section 9. clause 3 II1\d U,S, CONST. Article 1, sectiM lO, prohibits pllssage of ~x Post Facto laws by Congress and the stales. resj)cctively,' The Constitutional Ex Post l'acto clause guanmtees an individual the right to rely IIPQn the laws in place ~t the time an acl is committed, and serves as a

means of restricting federal and state governments from I)<lssing legislation which is retro~ct ive in nature. The United States SuPlttne Court fir~t add ressed Ell Post Facto I~ws in Ca/dlll'v. Bull, 3 U.S. (3 Oall.) 386 (1798), In Caldar, the Supreme Court specifi cally denoted four types of laws that the Ex Post facto clause prohibits: ( I ) punishment (or an action that was innocent when the act was IlCriormed: (2) laws that make a crime greater than when it was committed: (:1) laws which innict a grealer punish· ment thlill was prescribed by law at the time the crime w~s committed: and (4) laws that after the (act alter that rults of evidence necess~ry to convict an offend er,' The key issue in Ex I'ost Facio challenges is whether a given law can be defined as punishment. Therefore, the registration and notification provisions of 1-1cgan's L.lw5 must be considered punitive in order to violate the Ell Post Paclo clausc. Historically, the constitu· tional definition of punish1l1cr\! ror Ell Post racto purposes has been unclear, but Kansas II, Ncmlrlcks, 117 S. Ct. 2072. 2083 (1997), ~ double jeopardy and Ex Post Facio case, significantly clarified that definition. l1endl'icks based its test on Ursery v. UnitcdSta/es, 116 S. Ct. 2135, 2139-40 {I 996), Ursery. which held th~ t civi l forfeitures do not constitute punishment under the Double Jcolmrdy CI~u5c, applied iI tWO-PMI te~t. II ~xil mincd fi rst whether the legislature intended the m ca~urc to be crirliinlll or civilllrld second whether the me<lsures arc so puni· tive in either purpose or effect as to persUllde the court thllt it may notlegili. mately be viewed as civi l in nature despite the legislature's intent. Much Meglln's \..<lw liti!IJtion predates H{!m/ricks and Ursery. Thus, COllrts h,lVe llsed different st~nd~rds LOl,'valuate Megan's Law cilses. Tllese C,IS(:S relied on some combination of fou r Supreme Court cltses 10 deterr!)lne If regislfallon and nolificatl(lIl constitute punishment: United States v. Halper, 490 U.S. 435 (1989), which held that if Ii civi l sanction docs not solely serve ~ remedi~1 purpose bUI rather c<ln be explained ilS serving a deterrent or ret·

ributivt purpose, it 15 punishment: United SIale1 /1. Au11ill. 509 U,S, 602 (1993), which stru$«! the significance of a sanction's hi ~torically f1unit i~ pur· pose; Ullited Slales 11. J(lIrlh /?(mch, 511 U.S, 767 (1994), which stresscd the pun itive nature of a provision If it was conditioned on the commission of a crime: and Kel1nedg /J. MelldozoMurlinez , 372 U.S. 144, 168·69 (1963), which providcd $eVen considerations' to aid analysis when intent i5 not cle:nly determinable. Becausc of the very n ~ lure of the reg· istration and notification provisions of Megan'. Laws, th~e laws have been subject to ex post facto chal· lenges since thei r inception,' The ex post facto argument made agllinst requiring registration of previously convicted sexual offenders is that such legis. latlon impoSl!5 an additional and more burderuome pun· ishment than was prescribed by law at the tirllt the crime was committed. Similarly, challcngcs h:we been made Ihal notific .. tion provisiOIl5, ffillde applicable by statutes enacted after indi\iduals have been previou.d y con· victed, violate the second and third prohibitions outlined in Culder /1. nu/l. Ccnefillly, the counter argument is that Megan's I..<!w~ do not constitute punishment becalL'l e the statutory design or legislllli\'c intent is to protect society from the danger of re-offense by sex o((enders and to aid law enforcement in investigatmg and &<lIving crimes. The extended argument i$ thlll f,lilure t.o include previously convicted se~ua l offenders requires communltiH, despite knO'Nledge of the high probability of recidivi$m, to wail until further harm occurs. [n balancing the di((eren! arguments, courlS haw had , " difficult task because of the extreme difficulty in capturing the intent of the Icgisillturc. If the intent is purely punitive, the statute is punishment. hO'A'evu, if the Intent is non'punitivt, the (ourlS have had to weigh whether the punitive effect of the statute neg.1tes the public safety intent of the I cgi ~ la ture. All hough legislative

intent is the threshold Question, the courls also are grnppling with giving the effects lind purposu of the sanction equal weight in terms of balancing pub· lic safety versus punltivencss, 1~5Se nti a ll y, the thought is that despitt the public safety argumenlS, Mesan's I..<!ws lIctually have much broader con· sequences on an offenJer's life, with notification potentially affecting his famlly, job and ability to live in a given community. Arguments that have been raised Include potential viltilnnt iSIll, fin ancia l hardship on both the offender and the community i!i.elf, and the per· sonal stigma to the convicted offender

that widespreild dissemination can have, Thl:5e concerns may be especially salient In Alnbnmol because Alnbama's rcvised law regulates where an offender can live and work. The lIrgument perlllining to vigilan. tism is lhat with the information provided through notification laws, the possibility exists that hate citiZC11$ will use the information to seek out and ter· rorile 5C~ offenders rather than allow them to liv~ in a given community, In situations where lhe public takes mat· ters into its O'Nn hands, the possibility of an innocent bystander, or an individ· ual whose looks are similar to tht offender, being injured becomes a real and fri ghtening possibility.' There also is a l>otenti,11in1J)<tcl on the earning abilities of 1\ convicted ~ex offender, Any individual convicted of 1\ f\: lony will have a more difficult time being hired. but it is argued lhat one who is subject to sex offender registra· tion and notirication law may find it di(·

ficul t to oblain and maintain employ· ment. Either pressure can be made to bear resulting in termination, resignation, or a busineu that declines when p~opl e minimize trading soa~ to avoid the offender, AI.bama Case Law

Alabama has not had a caSt that chal· lenged Alabama's Community Notification Act on ex post ~1ctO grourlds. AI) Alabam.. court, howl..'Vcr, has given some Indicat ion of Its views on Ihe punitive nature of regist ration and notification. [n RobinsOll 11. Slale, Court of Criminal Appeals cJ Alabama, CR·97·06Q7, 1998 WL 599472 (not yet released for publication), September II. 1998, the court held that registration lind notification are not punishment. Willie Robinson . . .as indicted on two counts offi rst.·degree sexual abuse. lie pled guilty to one COul'Lt. Robirlson subse· quently filed a motion to with· draw his guilty pica. He argued thM his gui lly plea was involun· tary because the court did nOI fully inform him of Ule punish. ment. He argued that the failur e of the district court to inform him of the ilPplication and t ffect.s of the Community Notification Act rendered hi5 plea in\lOl· unlary. The court first noted the standard for D \IOlur)tarlneu challcrlge to a guilty plea, The court staled: ~An accused i ~ entitled to information concerning Iht direct consequencu of his pica. lie is not enlilled to information concerning all collateral effects, or fu ture contln· gencies that might a rise.~ The court. citinJl case law from Washington state, Penruylvaniil and New Je rse~ held that noWlcation and registration do not con· stitute punishment. Thus, the provi. sions were collateral, rather than direct, consequences of nobinson's guilty plea. Th_ Real M_gan'. Law

Megan's l..Ilw, as passed by the Ne\',' Jersey legislahlre at N,J, STAT. ANN. D 2C:7·8(c)(3J(West 1994), required anyone Hconvicted, adjudicated delinquent or found nOI guilty by reason of in~n ity for commission of a sex offense~ to reg· ister 111)()n releilse from incarcerat ion, . . . R C H H>UO/'"

relocation from imother state, or after a CQnviction wher~ OIn OIctive. sentence was not imposed. The statute further required previously convicted Individuals, who were not presently Incarcerated or subject to 5UI)trvision, to register. in addition to registration, the New Jersey Megan's Law required notification to t he public of certain offender~ b~sed upon three catellories that were contingent upon the potential fo r recidivism. M determined by the prosecutor in the county where the offender resides. The bre~dth or notillc<ltion wa~ b:tsed ul'0n the risk of potential recidivism. Thus, notification pertaining to low-risk individunls would only be made to 11M enforcement agencies likely to encounter the individual. Moderate-risk individuals also would be subject to having information released to schools, and religious (Uld youth organi~ations, In the instance of a high-risk r<tled offender. the gl'lltral public Ih,lt 111<15 likely to come in contact with lhe offend er would be notified. Even with wlnt seemed to be a clear lier variation in terms of disclosure find nolifirulion. New Jersey's Megan's Law lIIas qtlickly the subject of litigation in hoth state and federal court. This has Deen the case in other states as lIIell. Generally, Ihe fillal determin<ttions hitv\: held lhat the laws are proper because the statutory design or Icgisliltive Intent of protecling the public. Hpecilltly chi ldren, hOls outweighed any punitive imp,1ct. Examples of dccisiol'~ which hllve held registration proYisions to be non-punilive include Artway II. Ilttomey Gl!71llral, 81 1':3d 1235, 1253·67 (3rd Cir, 1996), rehearing dank'l1. 83 E3d 594 (3d Cir. 1996) (finding clmllenge:; to public notifi· cation provisions (mripe): lXx! II. Cn,[/oire. 960 ~: Supp. 1478. 1482·82 (WD. W'lsh. 1997); Doe I '. Pataki, 940~: Supp. 603, 629·30 (S.O.N.V. 1966). rl'llersed in pari, 120 ~~3d 1263 (2nd Cir.

t97); flrlway L'. Altonlcy Genemf. 876 ~: SUPI'. 666, 671 -77. 688 (O.N.J. 1995), L'lJC(JWt/ ill part. BI E3d 1235 (3rd Cir. 1996): Rou_ 'e 1l.lJurtOll, 884 F. Supp. 1372, 1375·81 (0. Alaska 1994): People II. Taylor, 561 N.E. 2d 393, 393 (Ill, ApI', Ct. 1990); Slttl(l v. MYCN, 923 r.2d 1024, 1041-43 (Kan 1996), ccrl. dellied, 117 S. Ct. 2508 (1997). E" post facto cases which have held registration and notillcation provisions to De non·punitive Include: RI/sse/f L'. Gn'(l{}iffl, 124 F.3d 1070. 1087·94 (9th Cir. 1997): /)00 II. Patuki, 120 1~3d 1263, 1276-86 (2nd Cir, 19977); I¥.P.II, Porit2. 931 E Supp. 1199, 1213·19 (D.N.J. 1996): Stufeu. Noble, B29 1~2d 1217, 1221·24(Ariz, J992);Slafe I I. McCuin, 808 r.2d 332, 335·42 (Ariz. Ct. ApI', 1991). vacaled ill purl, 829 P,2d 1217 (Ariz, 1992): Proplc I'. Slamcs, 653 N.~:, 2d 4. 6·7(1lL App. Ct. 1995); S(ale u. flickells, 558 N.W.2d 396,397-400 (Iow<l 1997); Sln/(l II. Mallllhltl, 532 N.\V.2d 244, 247-49(Minn. CI. App. 19959): Stale II. Costello. 643 A.2d 5:ll, 5:12·35 (N.H. 1994) : Doe fI. Porllz, 662 A.2d 367, 3878405 (N.J. 1995): Ample I', A(riktl. 648 N.Y.S.2d 235, 238-4 1(N.Y.sup. Ct. 19961: f(ifzc /J. Commol1wrulrh. 475 S.E.2d 830, 832·34 (Va, Ct. App, 1996); SIC/Ie II, Ward, 8691'.2d 1062, 1067·74 (Wash. 1994): SI(I/a /J, 1Ilylor , 835 P,2d 245, 247·49 (Wash. Ct. App. 1992); Sll!/dl!r 1/. S/lItl!. 912 P.2d 1127, 11 30-31 (WYQ. 1996). 13;lsed u[)On pr~senl case law and IIIrit· Ing.~, it wt)uld apl)Car th'lt the greater need to protect the public's good h<ll outweighed IIny stigma or difficulty thtllthe individual offender \\;11 encounter. Ptrh~I}S, this is best ~um marized by the New Jersey Supreme Court in the decision {)oov. l"orilz. 142 N.J. 1. 147 (1995). when the court quoted Blackstone's Commentaries (SI. Ceor,Qe lUcker ed. 1803). vol. v. ch. 18, ~t251: "Preventive justice is upon every principle of rcason. of humanily, and of ~und polk)', preferable in all respl!tL~ to punishing justice."

""d•• D. b,.

. . . IICH ' .00

Endnotes 1. ACt 118·469 to aM$l\d SI<::Iion II e·20-21 to I~20· 2

For

'_"'tne. 10

IN ACt

"·~ u

1e.20-24.

~IC PlOIJIIlorIt mtntlOOf(J to am.nd Sa<1Iomr 15·21)·21 10

I~utlvt.

CtxJt Of.u.tNmot 1975.

3. U.S. CONST, lit I, SIocIIort 9. cllUH 3 (eong_): U.S, CONST', 1111,"0 (1Iel"), ~

tQ.'3W,

The~" M~.· M~ "inflz.

t88.&9 (1903) IrIctor'I

372

u,s. 144.

Ire:

111 (...1hi11lfH It\It HrlCtlon lnIO/vtIan 1111,malfvt OlNOIIity or ,..I'elol, (2) ..... ther ~ h~1 hIIlOtII:9lry bHn 'fOIliOed II. pun/llImOnt, (~) WIMIIt\It,

(4)

11c:on\H Into pilI' DIlly an • IlndIng Of

1I¢I8<11.'. whelM/III operttlon will jlfomoll lhe Irad/· lionel '~I "" I/UIIltIlmIn",.Ir!Wllor!lrI(t

(51 ...... Itla, 1M D.MvIor to ..tUch

~ .J>PI~

Billad)o I e,lmt.

16) whett!er." IlllerI\lIM purllOlllO wtich Kmay '1I11(InaI/)' b!I CQI'IIf>ClIMI " ..itIgnIIbIo lor k, and 111 wn.II1tI, II ~ 10 ,.lalian 10 1M BII.'.... '"'- W'ilOM ."~. 6. Set genMliIy. Jamn O. HIding, III. Commenl, WQt\'1You 94 MV ~: 00 Communtty

appH"'"__

NoIllicJolion SlIIlUt.1 V"","l. Sox","1 0I1ond.,.' UI'o(Itr The COIIt~I~'t Ban 01\ 1M Palllll& "" Ex Pol! FaciO La ...? ~ 1 51. ~0IMr U; 1.J. 761 ('"'): JoAn"" W..... Com","",!), N otil ~1Ion PiOYIIkInIlor Sex OI~: No! PwnlBl\mallt for E~ Posl Facto BrI(t Doo.IbI, JIoI>4I'1fY PU'poMl. 22 S<wllwm III. Vn/tI, 1. J. 243 (1997).

RIQhtI

M'fJad<aon law · A l.odI< et Iht COr\smulionality 01 NoItM Caroln$l " ' - 10 MlIPII'n't Uow.:/O c.mp.I L" .. R.vItw347. 3$7,8

7. The

(IW).

H . Gold,t.ln J udi' Deb, . H. Ooldl ' ll n ~ an Idminlat1alMl ..... I\IOOt wllM Int OIIiel 01 HOI,lng. 111(1 Aopel"

St.ph. nl. Gold, ' . ln

Sac"1 Sl<::u'Hy Adml""IUlliQn," BI'minghrun, AiIOItIIa ",Iot 10 IW 1900 AU I~I. ant WIll I Ili00rIIY lor 1111 01111:. 011111 SOIICiIor. ~II!I;! Slaltl Oopartmon1 of t.abor ~ Ooidlilifl It I I9IW Idmll1H 10 II1I.o.tab«l\/lo Sllle 8/1, lild ~ • ~ 01 Tflil AI,o.m.t I..W)'Of .o,tor1III board Ilnd .-.DDENOUM sub..:ommItllMl

"I"

11 0

Act 98·489, the modified Aluballla Community Notification Law, WOlS signed on May 1, 1998 and did not become effective until August 1998, Although one Alabama cou rt has held that registration and notification are not punitive, the court relied solely on other jurisdictions' cases. It provided no analysis. l.ike the many olher stIl! C~' versions of f.l egan·s [...1W, Al'lbama's law too may be subject to EK P()5t Facto ch l\ lI~ngc~, and other constitutional chOlllcnges. in the futurc. •

Sl .ph. nle Qllld,I . ln II. HCOI\d·yelllllw ...... 0In1 _I GtorgOlOwrl UlllYtllity &rot ~ ~ rntn'iUI' of G~1Own

Law Joutnal

Witness Statements By Marcel L. Debruge and Tom S. Roper reparing il case (or trilll is a timc-consuminllllnd exhaustive Ilrocess. Within the bounds of ethics, it is the lawyer's job to track down everyone who Is, or could be, a witness and find out wh/lt that witneM knows "bout the cau. Certainly depositions are one of the most important tools in this process. but another option is taking a witncu's statement. Indeed. determining when it is better to depose a witness, and when il is better simply to take his statement. is somethinglhe lawyer must decide, and if a wit· ness statement is selected as the bc~t way to pTOteed. care must be laken to See lhat it is done right. Witness statements are valU.:lble because they enable the lawyer to Mlock i n~ the testimony of perIOns with knowltd~c of relevant (/lelJl. Ohen, an attorney i5 wise to obtain witness stiltemenlJlto safe· guard il{lainst the unavail· ability of an important wit· ness at lrial and to pre· ~ervt the testimony of a witness who, (or any num· ber of reasons, might later chrmge his or her ~tory. Witness statements can scrvt as an attractivt and cost·effecti\'(! alterl\lltive to depositions. especially when an attorney does not know beforehand what the \\'itness's testimony will be. Thus, wi tne~s statements are an Important pMI of trial preparation. A lawyer c.m ,1stertain critical (;'ClJl, view the witness's demeilnor, es t abli~h a relationship with the witness, and pQ$sibly uncover additional faets important to the case. This article dl$(u$$es: (I) laking a witness's statement, (21 tht discoverability and admissibility of wltnU5 stalements. and (3) thnitiltion5 on the efforts of OPPOSing counsel to obtain statements of a client's employees.

Prep. ring to Tak • • Wltn ••••• Statement Most la~rs either obtain witness statements on their own. or use all invtstlg<ator. associate or paralegal to obtain the statement. Investlg<ltors are an essential parI of the HUga.

lion learn for rnany attorneys. and statement.s taken by them are considered an "ttorney's work product. U.s. /J. Nobles. 422 U.S, 225. 238·39 (1975). When usinil investigaton. howevet. the (tHorney should be careful to instruct the invtstigator that he must disclose to persons interviewed that he is employed by an attorney. and also inform the witness of the name of the attorney's client. (Alabama. Rules of Ilrofcssional Conduct Ihile 4.3.) Determininlt the best wily to take a witness statement depends. of course. on who Is being interviewed. If an allor· ney representing a corporation is taking the st"tement of the client's current employee, the attorney ordinarily can expec:t a reasonable measure of cooperation. The pd· mary consl~eration s here are f~'l. finding. preservation of testi· mOny. i1nd creation of the attorney·client privilege. If applicable, See Upjohll Q). I'.

United State$. 449 U,S. 383 (198 1). dlscu sse~ infra. If nn attorney

interviews a person with no relation to any p.uty in the case, it is important to proceed with c<lution and make every effort to gain the witness' confidence. In such instances, lawyeu ~hou l ~ find out as much as possible about the witness before interviewinil him and make every effort to obtain a complete account of the relevilnt (acts. As discussed below. if a current or former employee of an adverse party is being interviewed. special considerations come into play Taking the Statom. nt

AI the outset, Ihe attorney shoul~ inform the witness thaI the purpose of the meeting Is to obtaIn truthful informntion about wh,lt he 5<lW or what he knows about the relevant i.'llue. Usually wltne~ statements are hamlwritten statements taken outside the OrnCt. It is generally preferable to h:l\'e the witlltM write the &tntement herself and sign it at tli.lttlme. This is to avoid the emb;u'nwment recently visited upon a fellCMP bw)'tf at the Jefferson County Courthouse when the l<lwyer wa5 attempting to impe<lch n witness with his prior statement. The 1~W)'er read .. AR CH

'ann,

11 0

the statement aloud and asked the witness whether his signature appeMed at the boltOm of the ~gc, The witness looked ()Vcr the: papc:r and rest)()nded, "Yeah, thal's my signature, but you wrote the statement:' However, on occ.lsion, having the witne:ss write the sUltement may not be feasible-things may be rushed, the witness may have very poor handwriting, or he m.ly be just plain uncomfortable with the whole process. In such cases, the lawyer sho\lld ;lvoid writin~ the statement. Ap.lralegell may be used for such PUrpose5. or. if the witnm is an important. one, use of a COu rt rcporter may be IIpproprillte. ~:lect ronic'll1y recording the st.ltement also may be a good idea. Formerly. ;lltornl~ were prohibited by the Aill.b:ttnn StMe Iklr from recotding a person withoul his or her knowledge. but that rule has befn changed. a.,scd on discussions with counsel for Ule Alnbanu St.1te 111r, it is the Alaooma State Bar's position 1b.1t an attorney Uust like ilnyone else in Alabama) c.ln tape record a conversation withoullhe knowledge of the person being recorded. There is room (or disagreement as to whether this nl'W freedom for attorneys to surreptitiously t,lpe record people is a good idea. but it is important thilt pl'ilctitioners know whM the rule! nre right now. Also. consider vidt(ltOlping lhe statement. espc:dally where the witnc$..~ is prc~nti ng import,mt visu;II infornmtion or cxpll1ining wlllit "'~]lptncd nt the $Celle of 1I1l accident. All witnes~ s t~t cmen ts should include the following infor· m.. llon: ( 1) The wilnes~'~ lilllll\:. ~ddress. occupalion, date of birth, lind telephone number; (2) The witness's confirnl"tion that she was .. t the scene (or II party to Ihe tr~li$aCl ioll. etc.). :md had Ihe ability and opportunity to personally observe the events recounted by her; lind (3) Any $pccial credClitials the witness hIlS relating to the weight of her observations (e.g., co·worker. supervisor. security guard. police officer. firefighte r. nurse, etc.), The witness should givc her own hceoull\, in her own WQrds, in plain English. Usu[Jlly. it is best to proceed chronologically. noting the relevant dales and times, Be careful, however, when hllving the witness put down dates and times, because she could inadvertently make a mistake, thereby openinll herself lit) to impellchment at trial. If the witness is not ab$Olutely certain abollt dates and times. one way to reduce this ri~k i$to have the wilnes5 redte that the dales and times given Me l1Pproxim(ltionsonly. While il is Iruc Ihlll the stlltelllenl shou ld be detailed. be careful not to go overboard and record unllOCl?s, .wry det.1i1. Remcmber that the more you put In the sllltemcnt, the morc you give: your oPI)()nent to scrutinize lind attack. If a notary Is available. it is always a good idea to have the statement notarized. The attorney should not notarize the statement himself, a5 this creates a risk that he later could be caned as a witness to testify about the circumstances smrounding the execution of the statement by the witness. Consider using a paralegal for this purpose. If a notary is not available. ilthlrdparty should sign the stat em~ nl M a witne~ to i\$ exccutioll, The witness should initial each page of Ihe statement. and the P.1ges should be numbered "I of 3." "2 of 3." etc. This prevents Ihe witness rrolll IlIler claimillg that a new page has been inserted or omitted. For those of you who favor "legalese." a provision can be inserted to acknowledge thai the stlltement may be used 120 MAnCH

1 ~DO

in a court of law or other legal proceeding. Final:y, if there is not II notary available, and there are no witnesses available, have the witness declare "under penalty of perjwy" that the informlltiol1 eontilined in his statement is Irve and correct. Special Con.lderatlon.

Memories f'lde. ro the stlltemenl should be taken as soon as possible. The laW}'er should do his best to investigate the (acts lind gather rclevant documents beforo inteJ'Viewing a witness because sometimes it will be helpfu l 10 refresh a witness' memory with facls and documents you have obt<lined elsewhere. II is advis.lble to move Quickly so YQU c~n interview third.party witnesses first. before your opponCI,t or his investigator. Also. leave it up to the witness to S\lggC$1 Ihe but place fo r the interview. This usually will result in II more comfortable and cooperOitive witness. Wh ~ ncver plmible. the lawyer ~ hou ld be: the one to take the statement. Invcstigators are an essential tool in the prepar,ltion of a case for trial. and cost-consciOlIs clients may Insi~t Ihlll non-IILtomey $taff tlOund the pavement to obtain witncss statcments. However, if you contacl witnesses and meet them in person to take their statement. you can use the opportllnity to judge the witness's demeanor and even e~tilb· lish some measu re of trust. Drafting the Statement

A typed draft of the statement ciln 00 Ilrepliroo from the IlOlCS h'lndwritlcn st:llement t..~ken III the interview. Having Ule statement typed providcs an excellent opportunity tQ correct glaring grammMical e rro~;md mllke Ihe statement more coherent, if necessary. The statement should be drnftcd in the first pe~on , rather than using lllnguage such as. ''The witness obseJ'\'cd 1'-lr. Smith run through the red light and strike 1'--ts. Joncs's automobile." Of course, i( you plan to ha\e a typed statement prelh~red. the witness should be told about it bdoreh,md. ~'o r obviolls reasons, the witness must be aHowed to rcad through the typed draft and make any changcs she WlllltS. Additionally, make surt YQI,I give the wilnCS$lIn opportunity to read thr()u~h the entire fin:ll draft before she signs it. Qr

Dlseo"erablllty and Adml .. lblllty of Wltne •• Statements: The Work Product Doctrine

"The work product doctrine exists to protect the integrity of the advefSliry system by safeguarding the fruits of an attorney'strial preparation materials from discovery by the opposing party," Fet/eral Deposif hiS. Corp. v. Cherrg, !)ek(lert & HOl/lIIII/, 131 1·:IW. 596. 605 (1'--U H'la. 1990). (Quoting III re Subpoena Duces Thcum, 738 ~:2d 1367. 137t (I).C.Cir. 1984)). The doctrine recOllnlr-cs that a laW}'er should not be relieved of his obligation tQ prepare " ca~e by rdying on the diligence of oPpQsinS (QU!l~e l , alid prtseJ'Vu the advcrsarial p roce~~ in:ln arena of liberal. allen discovery rules. Unles.~ a wilncss sllItemcnt has been obtained from II client, Ihe attorney-clicill privilege ordinarily does not prevent discovery o( the statement by an adverse IXlrty. Consequently. attorneys generally argue that witness statements are shielded (rom discovery by the WQrk proouct doctrine. See Hickmall/I. ruylor. 329 U,S. 495 (1947) (extending qualified immunity from diiStloS\.lre to wrillen stalements of witn(l;~s, a.~ well :IS notes of

attorneys made during interv;tw!I, where such inform.t!ion is develo~d in prell'lrlliion for possible litiJlallon). In J-/icJ:mml, the Supreme Court concluded Ihtll Fed, R. Civ. p, 33 does not require the production of witness statements prel)dred by an /lttomC)' after a claim "ri5(!S, With this holding, flic/m/(m Cre.ll· cd the work produc:t doctrine ultimalely codified in both the Vederal ilnd i\ lllbmntl l~ulcs of Civil Procedure. Amol\1:l other things, the doctrine places considerable restrictions on the abll· ity (l( One party to obt.ain an adverse party's witness·statement "work product. /lick","" did 1lOt. however, impose any (I/)$Qlufe restriction on the diSCQ\'t1')' of witness 5t.a te mcn~; a witlU!.'l..t .~fafl!l/l(!l11 or 011111' /IIork prodllct i.~ (IiS(x)lJutlble if Ihe H

mooing party is able 10 shot/) "subStanlial nt'(.'lI" tmd ·undue hardship•• Fed. It Civ. P. 26(b)(3): Ala. R. Civ. P. 26(b)(3),

In Upjohll, 449 U.S. 383, "the Supreme Court made clear IhM an attorney', notes and memoranda of a witness's oral slillements is co,uidcrcd !o be Opillioll work product." COX IJ. Administrll/or u.s. SteEll & Canregie, \7 V.3d 1386. 1422 (11th Cir. 1994) (dting iJpjohn. 449 U.S at 399-4(0) (emphasis added), IIlQ(.lifit'li on Olll(.'r grounds, 30 ~:3d, 1347. cert. (k'IIit,.'f1 513 U.S. 1110 (1995). Opiniol1l1.'ork prodllct canllot be (/1.<;cfNlergd,

f!11(!/l

I/fxm u showlllg of ~.~ub$la/Jli(llllt'i!(r al/d ·/II/dlll!

IIllrdsllip. · Cox, id, "Instead. 'opinion work product enjoys a

nearly absolute im'llunity and can be diKO\.'ered only in very r~(e and extraordinary circumstances:" Cox, id. (quoting 111 Nt MIII7J/zy, 560 J~:2d 326, 336 (8th Cir. 1977)), Thus,;lt least in the 11th Circuit. attorney notes made in connection with witne$S interviews lire 1l1fllQ$t never discoverable. Following tht ....'light of federal authority, the Alabama Supreme Court ha.~ explained Ihe work product doctrine as follows: Tht work product dOClrine is distinguished from tht attorney·client privileAt in that lhe latter appliu only to comnllmications between client and counsel. The work product doctrine i5 broader in that It affordll pro· tectlon to all documentll and tangible It e m ~ prtpan!d by or for the attorney of the p;lrly fro m whom dilCov" cry i ~ .ougN "as long as they wert prep.1fed in antid· pillion of litig.ltion or preparation for Irial." Ex parle Great Am. Surplus Lillt's IllS, Co., 540 So. 2d 1357, 1360 (Ala, 1989) (quoting C.I.)lQns, Alabama Rules of Civil Procedure Annotated. § 26.6 (2d ed. 1986)) (emphasis lidded). The court in Gn'(Jt Alii. Surplus /..flies also adopted NidmulII $ articulation of the work product doctrine with rcgnrd to witness sl<ltements:

We are dealing I\;!h an attempt. to s«:urt the production of witness statements and men",l impressions contained In the file and the mind of the aUomty without any show· ing of nects5ily or any indiclttion or claim th.l t denial of such production would m"lduly prejudice lhe prelXlration of petitioner's Cll* or C<iuse him any hanbhip or injustice, CrL'ftl Am. Surplus Lin('s, al 1360 (quol ing /-lickman, 329 U.S, at 495). While III one time there O"I."ly have been reason to question the authorily of Greal AmeriCU/J Surplus /il/l!$', Ihe .5Upreme court h.~ recently ruffirmed, in undeniable terms, 11la11l'ilrn:s.s slatemlmls taken in onlidputiOI1 of litigatioll oro /IIork JJrrx/llctlJfO-

en: 1'., 1?1.I11J 26(b)(.I). Sec Ex 676 So. 2d 1307 (AlII, 1996). In S/ephL'71,f Ihe court f<u;ed the Question of whether it is a violation of I~ulc 26(b)(3) to require that defense counsel be present ,.'hen plain" mrs counsel interviev.'e<i policyhQltkl"$ .....ho purclwcd policies from the t.ame agent 85 plaintiff. TIle courl foond that il did, In reachin~ this conclusion, the C(lurt noted that Hule 26(bIl3),

1«(,'lI from dlSCOfX!ry by NA R. IXIr(/1 SI(!IJi1t'7U.

i5 II codification of the holding in Hickmml t', TaV'or lwherellhe Supreme Courl refused to allow discovery of both wrillcn ~nd oral s tatenlent~ mllde by I\itnesses to defense counsel during informal Interviews. The Court reasoned that to allow such di$tO\lCry would allow Ol)posinll counsel to peer inlo lhe /l1I·important

([ommon l4a:fu,

Common Bond

S t8rl planning now to be a part of lhe Amoncan Bar AsSOC13110rl's Annual Meeting In New York City and london In the summer of 20001 The meellng will be held in N&w York City from July 6 1hfOilOh July 12. 2000 and Ihe london mooting will be hOfll July 15 1hf0lJlj! July 20 Members of the london 2!XXl Planl1l~ Cotmillteo, along With the ABA's sectioos. dlVlslOf'I$ and tom:nll' IOOS. arc 'Nenklng ha,d 10 make the London seSSionS the 6"Ient of e lifetime. E(IUlllly In~ol~ed af(! the hosts, the !>anlste,s and solic· IUlI'S of England and Wales Programming Will cover almost all areas of the law from hi· Igation to transaction to regulatory. and Will offel eXlXIsu,e to world renowned leade,s of the law hom ootll Sides of Ihe AtlantiC. Attendees Will ha~e tlla opPO(\untty to ~ISltloc<ltIOf1! in london not usually open to lhe general public, With a spe· cial emphasis on "Legal london" The london sessions Will nol be SUpjXlItnd by the (IIlnelallsv· anua of tho ABA, but by rCOlstJotion faes. and thela WII be II fmlte nombef of La<Nyera who Will be able 10 attend PrE·reglslla· tlon Will close at4,fXK) and 3,1XXI have al/eady pre·regl$teredl Pre"egIStr8tlon forms are 8Vallable villlhe Imamat at ................abanot org or by call1lill (3121988·5870. Tho Ple'l(1Jistlation fee IS $150. (All but $35 Will be refunded If you do 1'\01 actually register for the mEl8{lng.) FOIll'IOfe InfoonatlOl1. cIlack the Wmslte reg. ulorlyor contact the Amellcan 8111 Association at 750 N la~a $hare Dnve, OliCago, IlGOOII,(3121 9O)8.5IXIl

IUIIC N . 001 I ,2 .

mental impressions and strategies of defense counsel, and that an morney's mental impressions of a case lie at th~ vtr')' heart of our justice system. Stpv/u.'l1$, 676 So. 2d 011 1311 (ciling Ilickmml, 329 U.S. at 510-11). Mer quoting from I1ickmull al length the court rejected tht defendant'S argumentlhllt nule 26(b)(31 only protectl'<l tllItgible items or writings, lind therefore could not be extended to cOvtr the actual interview process. In lhe court's view. "lq luesUons asked by an altorney during a pre·trial inter· view would seem to exhibit some of the purut forlll~ of mental impressions, conclusions, and formulations of slrlltegy.M Id. at 1312, Accordingly, such work product was "due to be a{fotded the $olme type 01 protection that is givtn to 'opinion work prod. ucl: MId. ill 1313 (adopting, for witncss slatemen~, the standard of "near absolute Immunity" set forth in the 11th Circuit's opin· ion in Qu). Setr Ex parll! Houlel/, 704 So, 2d 479 (Ala. 1997)(follow1ngSfl'Pht'nS and reaching same condusiOl1s on nClITly Identical fac~). See also Fombll /). Popwell, 695 So. 2d 628 (AlII. Clv. App. 19961(af(jrminll: trial court's refuS<ll to allow discovery of witness sllltement lllken by insurH. dC$pl l~ pll,lntiff's IISsertionthat no litig<1tion could hnve been "anticipated" at time of statement. where interactions between plaintiff and iruurer were such that insurer cO\lld hOlve "rcllsonllbly anticipat. ed that a lawsuit was forthcominl(j. Accordingly. aft er S(cphl!.tlS, it is clear that witness slale· ments enjoy the iame immunity from discovery in Alabama that they are affordl:d in the Eleventh Circuit. DI.covery of Statement. In the Hand. of Non-Attorney. \\/hile it IIPI>eaTS settled thlllthe work product doctrine COv-

er! witncss ~tahm ents obtained by an attorney and In the attorney'~ I)()Ssc!Sion. it 15 not as clear whether the work product doctrine affords protection to witness statements in the 1)()S5ession of the witness or a third party. If a wilne» reques~ a copy of his or her statement. the aUorney must provide lhe statement to the witness. Ala.R.Civ.P. nule 26(b)(3); ~·ed. R. Civ, I~ 26(bH3}. Asimilar situation arises when lin attorocy's client provides a copy of II witness's statemenl to a non·party. What happens If oJlPC»ing counsel subpoenas lhe stll.tements in the pos,'lCsslon of wllnwes or non.parties? Thus far. no Alabilmil cast h/lj dealt with thIs situalion. It could be argued that a witness statement is ''wOrk product" only In the hands of the party or attorney who obt.,ined It, or persons aligned with the p;lrty such as co·defendanl$ or coplainUffs. Accordingly. when the st.ltemcnl i~ in the possession of a non' party, the work product privilege may nOI apply. Several cases support or iW:cept such an argument. SL'B John T. Kolinski, Obtllining fllOIlparly Wil1U!$S SlaU'tmmls Dircclfll from tiro WihU5S: IA!fIilimuflJ Di1a1l.V!rJI or Impermi$Siblill::/ld RIm Around AtlOnlPII tl ork Producl? 67 Fla. BJ. 16 (1993) (discussing bot!' sides of the argument). Hoo'ever, note that th~ mort recent ClUtS appear to limit the availability of this "end· run" around thE privilege lo those situations where the party po5scsslng the statements either obtained them. or failed to dis· close their existence. in violation of the rule$ of discovery, tht: ethical rules or ooth. &~, ",g., &'fl-ROY CQrp. p. SlIIlbell equilJ· & Relltals, fIlC., 172 F.ltI). 179 (r<1.D.N.C. 1997)(unethically taped convers.ltionsl; C.ofch v. Ensco Offshol'l! Co" 168 Ell.D. u2 ... ltC H . ....

567 (E.D.l.:l. 1996)(sllltement concealed through incomplete answcrs to interrogatories); Ward /). Naritz. Inc.. 156 ER.I>. 592 (D.NJ . 1994)(unethically taped conversations). The idea that litigants should not be allOO'ed (under normal circumstances) to use Rule 26(b)(31 to circumvent the 'oI'Ork product protections was first sct forth. In detail. in In ro Cmlllcrgerlf 7t'Ch. &'COlld lIuff 1984 Six. Ufig., 122 ER.D. 555 (N.D.Cal. 1988). where the court. construing federal Rule 26. concluded that Ute drafters of the I~ule nevtr intended to allow dlscov~ry of witness statemenl$ from witnesses absent Hllle 26'~ required showin~ or "substantial need" and " undu ~ hardship." Id. at 560·64. See also High 'Tech Comm!n1icaliolls, Inc. v. PmlOsonic Co" CIV. A. No. 94· 1477, 1995 WI. 83614 (E.D.l.a. Feb. 24. 1995)(finding that interview quest ionnair~s u ~d by the plaintiff to interview a number of witncues were privileged under the work prodllct doctrine and plaintiff did not waive privilege through limited discl()$ur~ to thlrd.plnties); accord lIatco eo,." , /). lYoR. Grace & Co .. CIV. A. No, 89·1031 1991 WI. 83 126 (I).N.J, May 10. 1991). ' Because of the 1000k of guidance both in Alnb.lma and the 1~levent h Circuit, III present it appears that nttorneys may con· sider reque5tin" wllness statements directly (rom the witness or from any non·party beliMd to possess a copy. NothlnJl in I~ule 26 tltprtssiy prohibilj this discovery. though the work product doctrine arguably protec~ attorney-produced witness $t atemCn~ regatdlw 0( Ihe identity of the party po55U5ing them. F...:ach dl.spute likely will have to be resolved by the trial judge and there is a rusonable likelihood that most judge$ will requlrt the moving party to show "substMtial need" and "undue hardship.M Regardless of the a~. if a witness statement is used to refresh a wltness's recollcctloll ~tlrill l , the stat~me nt can be requested by an oppo~ing pOlrty pursuant to ~·ed. It Evid. 612 or the corrc~ponding A10lbOlma Hule. Also, II statement may be obt.llned when it Is used by the witness to prepue (or a depo· sition. Alternatively, where the witness Is a current or former employee of a client, attorney-client privilege may IIpply ~ uch that the witness I'nay be compelled 10 keep his or her copy of th~ statement confidential even thou"h the work product doctrine is found inapplic<lble. Adml • • lbillty of Wltn ••• Statements at .....Iel

Extrinsic statements. whether oral or wrillen, are consid· ered hearsay if offered to prOvt the truth of the mailer asserl· cd. I-I owc~cr. If the declarant Is Ul1(IlJ(Ji(abla to leslify at trial, .In CXCclltlon to Ihe hearsay rule Clln be fou nd in I{ule 804(b) of the FcderOlI nulcs of Evidence. Assuming the witness state· ment was not taken in some prior "proceeding," and therefore admissible under I~ule 804(b)( I). the party offering the slatem~n t should argue that the statement falb under null! 804(b)(S)'s ~catch aIr provision. IMe 804(b)(51 will allow the slllterntnt inlo evidence if (1) the slJtement is offered as evidence 0( a nt<lteriat fact. (2) the stalement is more prOO.ltive on the point for which it is offered than any other evidence which the proponent can pnxure through reasonable efforts; lind (3) the court finds thaI the general purposes of the rule$ and the interests of justice will best be served by lldmission of the st.ltement into evidence. If the st.,tement is signed under oath. the court would h.1VC reMOn to belk'VC thal li has cqulvalent circumstantial guarantees of tnlst'NQrthincs,\ M

oth4!Tevidence which would paM muster under the heart.ay rules. This t.."ldic would not appl), in Alabama M th4! new Alabama evidence rules differ with the fed~ral rules b)' eliminating the "catch alt" found in I~llie 804(b)(5) of the federal rules. If lhe declarant is til/ai/able to testify at trial, Rllle 803 of the Federal liules of Evidence comes into play. This rule pro· vides \'arious e~cept ions to the lu::.tsay rule such as pres~nt sense impression. excited utlerance, etc., which may apply in limited ci rcumstances. The most promising vehicle for Ildmilting II wilneM ~tate ment where the witness is available to testify is Hule 802(5)'5 exception for recorded recolleclions. This rule wmes into play where the witne5.5·s memory has deteriorated to the pairlt thllt she canl'lot testify adequately as to the fllcts ll00ut which she is questioned. If Ihis foundation is laid. the statement may bt re3d to the jury. though it cannot be admitted as an exhibit unless offered b)' lin adverst party. The n+;w Alllooma Rules of Evidence are consistent with the Federal rule~ on this point. C. Cllmble, Mcf.'lroys A/IJ/x"nll ElI/dellce § 116.03 (5th ed. 1996). Limitation. on the Effort. of Opposing Counsel to Tak. Wltn ••• Statemont. of a CU.nt'. Employ ••• : Tt'I. Alabama Rul •• of Prof••• lonal Conduct The analysis bellins with Alabama I~ule of Profmional Conduct 4.2. entitled "Communication with Petson Represented by C(lun:«I";

In representing a client, a lawyer shall not communicate about the subject mattet of the represerllation with a party the lawyer knows to be represented b)' another lawyer in the n'aller, unless the lawyer has the consent of the other lawyer or is aulhorized by law to do 50. The Comment to Hule 4.2 provides addltionlll guidllnce: [n the case of an organization. this nule prohibits communications by II IlIwytr for one party concerning the matter in repre.sentation with persons haying a managerial responsibility on behalf of tht organization. and wilh any other person whost act or omission in connectiol'l with Ihal matter may be imputed to the organit.ation fo r purposes of dvil or criminal liability or whose stlltement may constitute an admission on the part of the organization. If an agent or employee of the orgllnlzation is repreWlted in the mailer by his or her own counsel. the consent by that counsel to II communication wilt be sufficien t for purposes of this IM e. Another Alllbama ltule is relevant to this discussion: 3.4(d) Fairness to Opposing Pllrty and Counsel A lawyer shall not ... request a person other than a client to refrain from voluntarily giving releyant informalion to another party unless: (1) the person is a relative or an enlployee or other lIgent of a client: and (2) the lawyer reltsonably believes thaI the penon's Interests will not be adversely affected by refraining from giving such information. Commellt to RI//u 3.4(d)

ParagrJph (dlllCrmils a lIIwytr to advise employees 0( a client to refrain from giving information to another p;lrty, for the emplo),ees may identify their interests with those of the client. Current Employees Ex parte contacts with corporate employees pose a serious threat to the attorney-client privilege bec.1ust the employee generillty Is not knowledgeable aboullhe privilege and mlly not share the em jlloycr'j interest in preserving it. To protect the employer agalnst t)Ossible overreaching or unfai r Interrogation by ojlposing counsel. especililly where emrloyee statements may be Imputed to the employer, counsel for the employer must be present. Under the Alaixlma Rules and recent casts. opposing counsel cannot interview, or even contact. current employtu in the Mmanagement" category. without permission to do so. This category includes employile$ who have ",,1nagerial responsibilities. or whose acts or omissions in connection with the matter in Iitiglilion mllYbe imputed to the corporation for purposes of civil or criminal lillbility. or whose statements may be all admission on the part of the corporation. &'(1 7l!ffl1 lnt1, Inc. IJ. Niss/ssiWi Chom. Co,." .• 913 E Supp. 1306 (N.D. Iowa 1996)(applying Ilkll1llgerial group test); Browning I'. ,IT&T Pt/f{/{/U'-w. 838 ~~Supp. 1564 (f.t O. Fla. 1993)(same); Stale v. O'NIIIleu, 888 S.W.2d 760 (f.10.CtApp. 1994)(same). The Aroup or employees that may not be contacted without permission is essentially identical to thllt group of employees covered by the attorney-client privilege under the Supreme Courl's decision in Upjohn. 4<19 U.S. 383. There the Court held that communications between corporate counsel and employees of the corporation. for the purpose of determining potential civlt or criminal liability of the corporation, arose within the context of the attorney-client relationShip and were therefore protected by that priyite!te. ABA Formnl Opinion 91-359 identifies the current employ. ees covered by the privilege:

The Inquiry:1$ to present employees thus becomes whether the employee (a) has "a rTlal1llAerial responsibilityM on behllif of It'le employer-corporation or (bl is one whose act or admission in conntction with the matter that is the subject of the pottnlilll communicating lawyer's representation may be impli/('(} to the corporlltion, Qf (c) is one whose "statement may constitute <In admission" by the corporation, Attorneys mlly contllct current employcu of an adverse party which do not ralt within this definition without implicating dlher Ihe ethical rules discussed 1l00vt or the allorney-client privilege. Contact. with Former Emplov ••• Although courts around the country have split on the Question of wht:lhcr former employees may be contacted by opposing coullsel. there is some authority in the ~; I eventh Circllit to support the argument that such communications are prohibited. Rim/club. hlc. IJ. 'J'rUIl$(IIIWriClI Rental 1-';11. Co,.,)., 8 111·~Supp. 651 (M.D. Fla. 1992). arrd. 43 ~:3d 1439 (11th Cir. 1995) ("ex parte cont~ct should be barred to Ilrevent disclosure of any inadvertent confidentinl communica.... "CH

,Qoa

12.

lions"). Riml e/llb is signifi~ilnl be~illise the Eleventh Ci rCliit aftirmed ~ restriction on ~ont acts with ,til fo rmer emp10ycc5. The COllrt made no di5tin~tion between mimageri,ll:md rank· ilnd·file employees, which. ,I~ noted above, i~ an integral part of the law regarding contacts with current employees. Ilowever, the "iability of the rule barring all contllct with for· mer employees In all situations was essentially rendered nil in BroLtllil1g, 838 ~: SUI}P. 1564, where the very judge that wrote the district COtun opinion in Rlm/e/ub "expl~i n ed" that C{\se as stllnding for the proposition that "this Court has and continues to hold tl11lt a "party" for purposes of IRuie 4.21 includes for· mer miln,lgerial employees, if Iheir st"tements '.. . could be admissions against the corporation or ... their actlon5 could be imputcd to thc I;orporation.'" /d. 11\ 1567. This also hIlS been the position tahn in a number of recent decislol\S addressing the i$Sue of ex p:!rte conttlct with former employees. St.,€, e,g.. /Jr'Iil(.'(1 Stutes /J. lkiersdorf-Jobsl, Inc., 980 I~ Supp. 257 (N.D.Ohio 1997); Uniled Siaies /J. Housillg Aull!. of Ihe 7bum of Nifforrl, 179 EIl ,D, 69 (D,Conn, 1997): IJurrrm Uldrs & Ngml Co. 11. J&A Air COlldiliollil1{J & Rerrigeralfoll, IlIc.. elV. A. No. 96·2921. 1997 WL 685352 (E.]),L..l. Oct. 31. 1997): 7'l!rra 1111'1. IlIc.. 9 1:1 ~: SUpl). at 131 4· 16. On the other h;md. there is also subslantial authority (or the position that the cthic.1J rules regarding t x parle contact do not apply to former cmpJoyce~, t hu~. the ahi lity of attomc:y~ 10 interview such former emlllQyt!cs is eiUlcr unlimited or limited only by applicable privilegc~. &~ COIU:emtNi Paf(>llts IJ. Nou.~h!g Aulli. orSt. Petersburg, 93<l E Supp. 406 (M.D.Fla. J996)(declining to follow RL'Ilfclub and holding Ihat contact with a (ormer employ· ee WOl! only prohibited where the employee ....'as represented by the same attorney representing the employer): Aik(!/l/!. Busilless fnt/lIs, Health Group, Inc.. 885 E Supp. 1474 (I}.Kan, 1995)(find· ing that I{ule 4.2 has no applic.ltion to fomle r employees): Reynoso 1/. GreYlloids Park MUl1or, Inc.. 659 So. 2d 1156 (Fla.Dist.Ct.App. 1995)(finding that llule 4.2 hilS no ilppli,ation 10 fonner employees): Conlinent,,! IllS. OJ. II. SlIperior Ct.. 37 Cal. Hptr. 2d 843 (Cal.Ct.App. 1995)(finding fOrmer emJl loyce~ not wit hin rule prohibiting ex pMe cont.lct); In re: Domestic Air Trulls. AnN-111m Ulig.. 141 P.RD. 556 (N.D.Ga. 1992)(holding thilt counsel has subSUnltial liberty to contact tmd Inter'\liew for· Iner employec~ of opposing parties): ABA Formlll Ol}inion 91· 359: Omlacl 1I'll/t Fon ner Employee ofAt/ll(!r;ro Gbrporl/111 Parly (finding thllt Itule 4.2 does not IIPI)ly to former employees). Bul s('il Uniled Siaies 11. ",orida Wies Hvlcr OJ .. e lv. A. No. 93·281·

C1V·FTt>1-2 1, 1995 WL 340980 (f'.l ,I)Yla, Apr. 26, 1995)(following R('11Ic/ub, however, P.l rty was only prohibited from conl"ctin" fo rmer employeES outside the presence o( opposing counsell. With no real consensus on what is, and i~ not. pc r mis~ib l c when it comes to contacting an oPI)o~i n g party's fo rmer employees, attorneys take a certain risk in doing so without di$clo~u re to, and guidllllCt from, the court inV{)lved. SCf./ laC/wi'r, /.,It/. 0. Driggs, 965 ~~ Supp. 741 (D. r>1d. 1997)(dis· qualifying plaintiffs counsel for contlleting defend:lIlt's for· mer geneml counsel ex parte) off'd 141 t:3d 11 62 (4th Cir. 199B). This risk is especially high in stlltes stich as Alabama where the courts have yet to offer ilny real gllid,mce on the matter. However, bear in mind Ihat, at least fo r those courts that find such ex J)ilrtc contil,t objccli onilb l ~, the prin1<lry concern i~ that such contact dl)es or wm result ill th ~ disclo1Z4

MARCH ,.00

sure of privileged or conl1dential information, or heth. The court in BrOlllllil1!1I" AT&T Purt/dyne offered a common· sense solutlolt to this 11rIrticuiar problem. The Brownillg court wrote that the proper ....'ay to prolect privileged and confidential information in the hands of fo rmer employees was (or the ..:ourt to fashion an appropriate order governing such contact rather Ihan barrinp; it outrip;hl. Brownillg, at 1567. In umgl1l/. Rt'(.'(ly Gh.'ek ImprQl.'l!lIl1ml Disl .. 888 ~~StlPp. 1143 (M.lU·la. 1995) the court attempted to fashion an "nppropri"te order" governing contacts with former employeu (If OPpo$ing parties by esillblishing some guidelines for such contacts. The court st<lted the following: Therdore, the Court determines thlll (counsdllllay initillte (IX porte communiclltions with former employees of Ian opposing JXlrty) under any applicable ethical and procedural rules and the following guidelines: (1) Upon cont~ct ing llny former employee, (counsell shall immediately identify herself as the attorney lepresenting (an opposing p.1rty] and specify the purpose of the contact. (2) lCounsel1shOlli ascertain whether the former employee is llssocillted with an adverse party or is represented by counsel, If so. the contilct mvst terminate immedinlely. (3) ICounsel1shall advise the (ormer employee that: (a) p;lrticipation in the interview is not mandatory and thaI: (b) he or she may choose not to particilxlte or to partici· l).llte only in the presence of personal counselor COtlll· sel (or the forme r employer. Counsel must immediately terminate the interview of the former employee if she or he doc5 not wish to partidPJte. (4) ICounsel1 shall advise the former employee to avoid disclo· sure of privileged materials. In the course of the in(erview the (counsell sh;11I not altempt 10 solicit privilep;ed information and shall terminate the cOnVers.ltion should it appear thai thc interviewee milY reve:J1 privileged m~ tters. (5) The linterviewing party] shall create and preserve a list of all fo rmer employees contacted and the dalu of contact and shall maintain and prc$crve ~lly <l.nd all stal~mcnt~ or notes resulting (rom such contact whether by phone or in person.IAdver~e pa rtie~( lire el\tlticd to review the list lind 1\Olc~ within §cvcn dOlyS of dem,U ld subject 10 the protec· tions of work product. Id. at 1148·49. With the possibl~ Cltccpt ion Of till!' fifth Ollt, \olwltl:lry adoption and adherence to these guidelines. whether or not Htigation is ;,Iready pending. would undoubtedly go a very long way tov.'3rd prcventirlg ethical problems with regIlrd to any contacts with former employees. Of course, nny self· impo§cd restrictions should De objectively verifiable, At present, Aillbama places few, if any, restrictions on contacts with the former employees of nn opposing party. Indeed, the Alabama Supreme Court's recent decision in CO.II/(mi II. Homemakers or Monlgomery, Inc.. 675 So. 2d 363 (Ala. 1996), indicates the cotlrl mny not ,Ipply Ilult 4.2, or Imy other ethical rule. to block contact with ronner employees. Whlle the Gllylurll decision de:!lt with whether an OIltorney hlld lI(~ t ed illlprOllerly by eontl:lcting II Cllrrelll employee of <11\ adverse party, the court's reasoning sheds some light on how

the court might view contact with Fonner employees. The attorney in question in C«ylaro hold been hired by an irnJividuallnjured by the emplO)'tt of II home heallh Coue I1gcncy. Prior 10 filin" suit,lhe attorney conL:lctcd the employee and conducted an intelView regarding the Injury. The Inlcrview wa~ taped without the el11ployee's knowledge. The COurt (ound the attorneys actions to be unobjectionable bawd 011 the (Ilcts that: (11 neither Ihe employee intelViewed nor her employer were "parties" within the meaning o( Rule 4.2 at the time the intclView took pillet Ix:cau~ no suit had been filed; and (21, as the employer had yet to retain counsel in this par· lic(llar nl<1iter. it could nOI be shown Ih~t the emplo)'ee w~s a person the attorney "knew" to be represent ed by counsel. !d. at 367. What 15 signirlCant about this decl~ion i~ lhe court's ernph;l$is on the requirement that the person contacted be a "party." The court's opinion enUorKs a very narrow definition 0( who is a "party" and indicates that the term does not include even all cummt employees, mIlch less former ones. A5 an additional note of interest, the Court also held thai evidence obtained In violation of an ethical rule was stili admissible, stating thai "the sole remedy fo r the violation of an ethical rule is the imlXlsitlon of discipllnilry measures. The rules of profeuion~1 conduct... do not playa role In delermin· Inll the admissibility of evidence." Id. Therefore. even ana· grant violalion 0( these rules would not affect the admissibili· ty of evidence at the trial . Ilowcver. such II violation may well result in the violating attorney being di~qualificd from con· thltling in Ihal partic\ilar representallon. Setl Ai: ptlrla I.ammoll. 688 So. 2d 836 (Ala. Civ. App. 1996) (refusing to overturn trial court'5 order Imposing Mlnelion of di~(I UaUfka tion agol!!lst attorney ",ho violated Rule 4.2 by making ex parte contact with opposinllpurtv specifically lo discuss the case). Accordingly, it would be risky. at best. to interpret the C<lJjlard liberally, or even liler:.lly. Until Alabama courll offer more guidance on thest issues. attorneys would be wise to consider Cavlaro as l>eing limiled to the facls of Ihllt case,

Guideline. tor Communlc.tlon. with Current .nd Form.r Employ••• "In dealing on behalf of a client with a per~n who is not repruenled by counsel. a laW)'er shall not slale or imply that the lawyer is disinttrtsted. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer's role In Ihe matter. the lawyer shnll n\lIke reasonable effort s to correct the misunderstanding." Alabama [M es of Professional Conduct Hule 4.3. Even where contacting a current or former employee is oth· erwise permitted, [Me 4.3 requires the lawyer contilC[ing that

person to make clear the nature of lhe Iawytr'S role in the matter giving occasion for the conlact. including the identity of the lawyfY's client and the fact thaI the witness', current or former empl~r is an advene party. Allil "'omUlI Opinion 91359 (f.1arch 1991), Here agoin, voluntarily following the guide. lines set out in lAnge should prevent any pr(jblelll~.

Sanction. tor F.lIure to Conduct Ex Parte Interview. Properly ~'ailure to conduct ell parle interviews in accordance with the rules In a particular jurisdiction (other than Alabama) may result in having the information obtained in the Interview excluded frOrl1 evidence, Carre" v. NatioIJal R,I? f'asscl1gt!r Corp .• 1990 WI. 12291 J ( E .I).I},~ . Aug. 14, 1990): Tralls·CoId E:rJ}rl!ss, hlc. v. Anow Notor Tra/lsil, Inc.. 440

F.2d 1216 (7th Cir. 1971), the disqualification of the attorney in the litiltation, ZllChair. LId.• 965 ,.~ SuPP. 74 1: America" 1>rrJ1,,'Cliotl Ins, Co. v. MGM Crulld lIotel. 2 Law. Man. Prof. Conduct 89 (I). Nev. 1986}: Mill.( IAI/d and l1'aler I'. Golcl"'/J West Ref. Co" 230 Cal, Ilptr. 461 (Cal. App. 19156J. or other appropriate snnctions, sec Fed, It Civ. P. f~ule II. A.~ noted ~bovc. Alabamil does not allow the excl usion of evidence $OleIy ~cau$C it was obtained in violation of an ethical rule, though disqualific;.ltion 0( counsel remains a po"i~ility as docs a disciplinary proceedinlll>efore the state bar.

Conclusion WitncS5 statements nrc an inexpensive and hillhly versatile way to lock In :lI\d IlreseIVe witness testimony nt the earliest ,tages of Ihe litigation process. AddiliOIi<llly.;~ long hS the state· ment! are taken "in antiCipation of litigation" thert s little thance thill an adverse party will be able to obtain lhem throU!lh discovery. However, where the witness is a current or Iormcr employee 0( an adve!le party. lhe ability to take a witness statement without the conKnl of opPQ$ing coun.'\C1 is limited and care should be: exercised to ensure that the all[lUc;,ble tthieal 511Itld<lrd$ lire not violat~d. • Endnot•• I s... ~ __ lotio UIt /tIf co. ~ /U1ItJIIM t.trbr Aaoc., :Je2 So. 2d :tH.

nl ( I878)(1Irrdrng _ _ • _ _ not WOfII 0'00\IeI. IIOIIcIeH 011118 _ _ In ~ PltOIlId) 8uI_, SImfr" ~,..rlI Hofp. . $' I So. 2d 1&4 (AlII ll187)(reooncllinO AN<nd ~~!IIIJI'MI WIIgtrI 01 AIIIM .... auIIIoo1t,' on ".,. bIololllhlo' AH<JfId WIll ~ on • flrrd· Ing 111/11 lhe IIBI_ II 11_ WIll IIOl IlIkon ~ ",,'!clpfUon oIl'IIII'IkIn. not on • flrllllrog I~'I 1111 tl9wn,,,1 Wit IIOl wor~ producI) SH.r.o 0.00"'. " CooIJ. 110 60. 2d 3911. 3M (...... 1$82)(ln0101oUng lllal wiI"... "~lIrne" WIll fIOI 1111' _ _ bil). CII r»I" SUI" F.nn MIIr. _ Ca.. :)IM! So. 2d 1133IA111. lteO}! ...""" I l 1 0 _ obIIIirI8CI by InIurar\ee cDmp. U'IV" n..ligIolor """

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Mitre.' L . Debruge

Tom S. Roper

M_",_. L. ~bl1l,. II. plflMl" lilt Blr"*>gl\am oIhol 01 Bllioh & EloroohtnllLP He 'tcliv.u . B,A Irom LO\HII~ SI ~I' UrweIt.ly Il'1 11187 Md. J 0 lrom ~ .. UnIvet&»y oI ..... bI\nIII &::~ 01 ~IIW ~ WlIM I>OnOtI

Tom S. 110",. 11 '" lnog.. il ln 1111 EI_rrwtgIrlllll

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0111<:41 01 BIlle"

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seroooJ 01 Uow ~

1996

WIlII _•

.. I" C" .onn I r ,.

For an Expert Business Appraisal, Knowledge and Experience Make the Difference ... Russell Floa ncl3 l Consuhi nJ:, Inc. is:m indepen.

(Approved fOr CLE credi t and Alabama Center for Dispute Resolution roster registration)

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work , ~ nmlonrl l coali t ion of independent bus j n c~ appm iscl'5, expands her rC50U!"(;C~ to utrcr l' wid~

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Apnl 22·23-26 Mobile General Mediation Training

ADRI. Inc. (Joe Davenport)

(770) 395·9992

elE 20 Hours

Notice The Alabama Supreme Coun Comnllnlon on Dispute Resolution. ostablishod in by Ihe Supreme Court of Alabama to promole mediation nnd olhor altornativo ways to settle disputes in Ihe state courl system. communities. administratf.ie agllr.cies and schools. will be awarding mini·grants for ADA programs. Grants applications must be received by Iha Commission by OCIOOO' 1 of Bach year. Currently. Ihe CommiSSion is accepting applications unlil Octobor t 1999 for the grant cycle 2000. for grant eligibility cri teria Dnd grant applications. please call the Alabama Center for Dispute Resolution 01 (334) 269-0409. 1994

ClE Opportunities The Alabama Mandatory CLE Commission continually &valuates and approves in-state. es well as nationwide. programs which are maintained In a computer database. All are idlln1ifled by $p¢nsor. location. dale and specialty area. For a complet9 listing of current CLE oppcrtunilies or a calendar. com act Ihe MClE Commission office at (334) 269-1515. extension 156 01 ISS. or you may view a complete listing of current programs at tho stale bar's Web sile. !,W,W,olobar.org.

April 22-24 Birmingham Mediation Process at the Skills of Conflict Resolution litigation Al ternatives, Inc. (Troy Smith) (800) ADR-FIRM (SS8) ADRCLE3. elE 22 Hours Note: To date. all courses except those noted have been approved by the Center. Please check the Interim Mediator Standards and Registration Procedu'&s to make sljre course hours listed w ill sal-

isfy the registra tion reqr.Jlr&menlS. Fo( additional Out-ol-state training. including courses m Atlanta. Georgia. call the Alabama Center for Dispute Resolution at (334) 269·0409.

YOUNG LAWYERS' SECTION 811 Cordoll G. Annstrong. 1/1. YJ.5 Presltll!l1t

Sandestin! Tht Young l.awyers' Section or the Alab:una Siale Bar is, once again. pleased to spolUOr il5 annual seminar to be held at the Sandestin beach resort in Sllndcsl in, Floridll. If }'IIU h a\~ not already made amnl!emenl. , I.hll urnl· nnr has been Icheduled for the weekend or fllay 2 1-23, 1999.

This yeM's seminar is sure 10 be as informative and entertaining as in the past. If you have never attended. just ask somtone who has and 1 bet they will tell you that the s(leaken are top·notch and provide valuable and useful insight into current topics. This year will be no different. Although the final slate of speakers has not been confilm ed a5 of the time this article \'IIIS due (or publicalion. our topics for discussion will include AI,Ib,lln(l e... idence, medil'ltion [!.Ild arbitration, implied ..... mllnly or habitability lind associated issues, recent develop· ments In medical malpractice cases, es~te planning tips for the young lawyer, V2K issues fo r the young lawyer, and II discussion by Sid Jackson on his recent appearance before the United Slates Supreme Court and their decision as to whether the Daubert (actors apply to experienced based C)lI>trU, It is our A0.11 to select useful and current tOllies to be presented by speakers rep· resenting all (acets or the bar, Wt ha ...e also planned enjoyable social events to allow the attendees to learn and relax In the SlIme ~'eekend. As u~ulIl , a gol( tournament has been scheduled for Friday afternoon immedi· ately following the morning progr<lm. Although participation in the golf tour· nament is Slillllmited, the popularity of this e...ent has allOl'ied us to con... ince Sandestin to increase the nu mber of go lfe r~ to 80, broken down into 20 fo ur· golfer teams, Jl<lrt icipation will be on a first-come. first ·serve basis.

If you don't feel like golfing, just lake solace that you will be at the Sandestin beach resort. There wilt be afternoon beach parties on Friillly lind S.'lurday, As usual, our .seminar sponsors art kind enough 10 provide beach lowel5, hug· lI:er5, cups, lind appropriate beverages (or an afternoon In the sun (I hope). AlthoUAh the wCilther is as unpredictnble as Illy two,year-old son's beha... ior, we ha ...e been blessed with beautiful sun· shine and warm temperatures over the IMt several yeal'$. I h.lve also been assured o( allother bellutiful ....'Cekeod this year by a local metoorolOliist whose forecast accuracy is rUll".ored to be betler than Willard Scott's. As well, Sandestin will provide live entertainment by the pool if you decide to lap your toes, There wi ll also be evening SOCill l llctivitie5 by the pool with Ii ...e enter· tainment, food and be...erages. All of the extracurricular social acti... ities are good places to catch up with old classmates from law 5(hool, makc ncw fricnds. and exchange experiences common to the new practitioner, I certainly believe that the interaction at the social acti ...ities is as important to the grOll'th of the younA lawyer as the actual CU;. The registration cost of the seminar is competiti ...e with other eLI:: opportuni. ties but with onl: siltnific;ml difference, If you ha ...e been practicing leM than two )'(!ars, then the regi5tr(llion CO$t is only S125. Ob... iously. it is our goal for this seminar to be attractive ~nd affordable for the new lawyer, As wdl. Sandestin will be providing reduced room rates. Please look for II, speeial mail·out from the young lawyers with more details. Thanks go \0 sevcrlll1awyers on the VLS Executi"'e Committee for the time and effort they ha ...e put into putti ng together this yebr'S program: Todd Strohmeyer. Stoney Chivers and Sarah Stewart of Mobile: Michae l Mul .... ney of

Birmingham; and Lin Van W.gner of t-lonlgomcry. Each of these L1WYers has willingly devoted a significant amount of time, and sometimes their own resources, to making ou r seminar a success. The Alabama Slate IJar eM be proud of these young lawyen whose thilllklc5S efforts are moti ...ated solely by a desire to cont ribute 10 the fellow mell'lbeu of our organization. For more infonnalion about the teml· nar. call Todd StrohmC)'er at (334) 432· 552 1. Stoney Cha\'frA .t (334) 433· 8100. or me at (334) 0134·6428. I look forward 10 seeing you in Sandestin. •

QUALITY SOFTWAR e. Now FOR WINOOWS.

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DISCIPLINARY NOTICE

Notice Notice is hereby given 10 Whitmer A. ThomDs of Birmingham, 41abama thaI ho must respond 10 Iho chargos in

diSCiplinary hlas ASS No. 98-131(AI. at ai, within 30 cays Ir(;l!11

tho date of this publication. March 1999. Failure to respond shall result in funh(ll action by the Office of General Counsel

and/or {I default to be entered aoomSI him lASS No. 9B-1311AlI

Reinstatements

• 01\ November 5, 1998. Gulf Shores lawyer Jim Clay Fincher was rcinstlilfd on the roll of the Alabama Supreme Court as an altorney ~u lh o rized to practice law in the courts of Alabama. Il'et. No, 98·0101

•

• Birmingham lflW}'er Rob ert McKim NONls was reinstated 10

the practice of I<lw in the Stale of Alabama by order of Panel of the Disciplinary BeMd, effective November 16, 1998. Wet. No. 98·1J) • By order of the Disciplinary Commission dated AugUSl31. 1998, I)avld Garrett IIOOI~r. a r.1ontgomery (lttorney. I'o'~s suspemled from the pr(lctice of 1(11'0' in Ihe Slate of Alilbamil fo r noncompliance with the Client Security I·'und Assessment Hules of Ihe Alilbllma SI... h: I%r. S... id suspensiOl1 W,IS dfcctlvt September 9. 1998. <Ind. by order of the Disciplinary Commission daled September 18, 1998. Dllvid Ctlrrctt llooper came into compliance with these follid Itulc~ 1l11d y,'IIS reinstat· cd to the pra(lice of law effective September 17. 1998. J

•

DI ••blllty

• Mobile attorney Peter Austin Uush wa~ transferred to dis· ability inactive stat ll ~ pursuant to Hulc 27{cl, Alab:lIn.. Hulcs of PrI)fC$~iortld Proccdure. effective Decclllher 4. 1998. (l~ulc. 27(c): Pet. No. 98·021 • Birmingham attorney Calvi n Seely ltockefcller, III was trlu'lMerred to di$ilbility hlaClive status by order I)f the Disciplinary Soard of the Alabama State Bar effective January 8. 1999 .I I~ule 27(c): PeL No. 99-011 Suspensions

• On January 20. 1999, lJirminghaml1lwyer Da\lid Elliott lIodges was luspended by the Alabama Supreme Court for a period of 45 days. Hodges agreed to 11 45-day suspension and two years' probation following his suspension. The SLLspen-

•

sian was ordered in conjunction with an ilgreement belween 1lodges and the Alabama State [lar in resolUlion of five pending disciplinary Cil5es. The fi\li: cases illlinvolved willful nClI:lect and lack of commun1ciltion. f our cases were instances in which J lodges f~iled to complw work on unContested diV(ltCH llild h<lnkrulltciu. After lhe c lien~ confronted Hodges about the problems. he would give the client Il~surllnces which would flat be met. In one case, Hodges missed II stlltute of limitlltions in lin automobile accident case. 1lodges notified his client that he had missed the statute of limitations. and later signed a promissory note (or $25,000 in an effort to make his client whole. After a couple of payments, Hodges defaulted. As PMt of his ple(l ilJ!reemcnt with Ihe Alab<lma $1,lle Oar. Hodijes all:rced t(,l confess judgmenl. and milke arr~ngcments for sati~f<lctory payment.IASI3 No. 95-133(A), el.lIl. J 13y order of the Disciplin~1)' Commission daled November 25. 1998. t{ennelh 1-1, ~Ililican. 11 Hamilton. Alabama attar· ney. WilS suspend~d from th~ pmctice (If ];11'0' In the Stille of Alabama (or noncompli:tnce with the Man!Mory Continuing Legal Educ..lion Rules of the Alabama Stllte Bar. Said suspen~ion WM effective December 7, 1998. By order of the Disciplinary Commission d.'1ted January II, 1999. Millican Cllme into compliance with these SIlid rules and was reinstilted to the prllctice of law effective January II. 1999. leu ; No. 98.27] Effective September 28. 1998.llttorney Richard Edward JC8mOllih of Penfollcola. Florida has been suspended from the practice o( law in the State of Alabamil (or noncompliance with the 1997 r.landatory Continuing LeWJI I~dllCiltiQn Hules of the Alab<lma State Bilr. ICU: No. 98·111 Effective September 25. 1998. Birmingham attorney 'filion M~n Gideon h~s been suspended from the practice of taw in the State of Alabama fo r noncompliance with Ihe 1997 Mandalory ContinUing I.c!till Education nules of the Aillbllll1ll SIMe !Jar. jCtE No. 98·321 £ffective November 4, 1998, Mobile attorney Charlu Edward Pearce, Jr. has been suspended from the practice of Illw in the State of Alah1l1'l)1l for nOilcoll1pliance with the 1997 ,.1andatory Continuing Legal Educ,llion I~ules of the Alab<lll1<1 Stnte Bl1r.ICLE No. 98-36J OPI' attorney 1II1'1')' IlandaU Grl&8ell WM ~u~ptnded ftom the practice of law in the State of Alahamli for a period of91 days. Said suspenSion to be held in Ilbeyance J)endirg successful completion of a L"'a-yenr probationary period conditioned on him serving a 30· day suspension from the practice of law effective at 12:01 lI.m .. December I, 1998. based upon his plea of guilty to viol~ting I~ule 1.8ib), At~bama l~ul e5 of Professional Conduct. The respondenl iI\torney ildmitted to enlt<lginll: in sexual relations with a present cHm!. Other can·

.F!H'!.u@8!!!.r~""c-; " c"~c,c,,"c,";::::",,=,:-------------------------------

dltions of probation were ordered, IASB No. 95. 18:1(AI • Effective NOIIember 27, 1008, attorney O llll t Mark Zamora of Atlanta, Georgia 1185 hem suspended from the practice of Illw in lhe State of Alabama for nonCOtnll!i,\nce with the 1997 folandatory Continuing I.(~sa l Educalion Rules of lhe Alabama Slate Bar.ICLE No. 98.251 Public Reprimand.

• Beuemtr Imllycr IUchard L.llr ry McCI ~ndon received iI public repri. niland with genual publication for having violated Rules 1.3, 1.4 and 8.4(g), Alabamll Rules of Professional Conduct. In JanUlu)I 1993. fo1 cCIendon was retained by a client to represent her in II worker '~ compen· 5.1tion action, Although McClendon filed suit on behalf of his dient. ht took no action on her behalf /lnd failed to communicate with her regarding the status of the cue. Based upon McClendon's Inllclion, his client's case wa~ eventuatty dismissed fo r failure to rC~pO nd 10 court· ordered (Ji~covery. During this 5iIme time, fo1cClendon Ilgreoo to dtfend his dient in a matter involving a motor vehicle accident. Notwithslal\dil\g his agreement to rep· resent her, fo1cCiendon fatted to take any action on her bchlllf which result · ed In a default judgment bting taken against her. I,' S» No. 97.308(AlI • Birmingh;lm attorney Emily Cuby ":berhllrdt received a publk rcprimnnd

Hooked on Alcohol or Drugs? You don't have to be. The Alabama law,st AS$lstence Program can holp. Calls als StriCtty conlrdential PIlons (334~ 834-7576 Jeanne Matis laslie, proglam dlloctOf

without general pubHc.atlon for wi!l(\llIy ncglecting Illegal nWltter entrustcd to her in violalion of Rule 1.3, Alabmn.l nulu o( Professional Conduct. and for failillA to respond to a lawful demand for information (rom a !.Isciplin:u)I Iluthor· ity in violation 0( nule 8.1(b), Alabama Hules 0{ Professional Cooduct, Elx!rhardt was retained b)' a client In folny 1996 to represent her in 1\ dispute with II local contractor. After the Inilial conference. the client h"d a difficult time contacting Ebcrh.:lrdl and obtain· ing information regarding the status 0{ the matter, I3ascd upoo these. difficulties. and the fact thilt Ebetharol did little or no work in the rmlter. lhe cHent termi· mlted I':herh~rdrs services, Thereafter, Eberhardt failed to account for ....'<Irk performed or to refund any unearned portion of the rt!<liner thilt h.'tti been p.1id by the client. The dient then tiled a complail\l with the Alabama State B.:lr regarding the mauer. During the investig.ltion of the complaint. Eberlwdt failed or refused to rlumc rou~ requests for In(orl1\lltion from the ornce of Gener31 Counsel as well all th~ local gri~'Vance committee of the Birmingham Bar

Associ/Ilion. Eventually. Eberhardt did communicate with the Omce of Ceneral Counsel regarding the mallcr and, in February 1998, refunded the unearned portion of the r((ainer to the client. lASS No. 96.307·A)] Emily Cub)' Eberhardt al~ r«;civtd a public reprinurnd wiU\out general pub· liC{l\ion (or failing to respond to a law· ful demllnd for information from a dis· ciplinary authority in violatiOl1of nule 8.1(b), Alabama Ruin of Professional Conduct In May 1996, Elxrhardt Wall retained to represent a client in m.:rtte~ involving a dispute with two local contmclOI'$ regarding work performed on her home. Eberhardt did little or no ....'OYk in that maller and failed or re(uSl!d to communicate With the client reg.1Yding this I'lllitter. Therefore, the client filed a grie."ance with the Alabama Slate Bar in December 1996. Ebtrhardt failed or refused to respond to lawful dem.lnds for infomurtioo from the Office of General Counsel, as ....'ell as to the Birmingham ~ r lWocilition Local CriCVllncc Committef. (ASB No. 97·65(AII •

State Bar Names New MeLE and VLP Directors

he AI9111111a SIal!' 1111 r I·t'('~nlly nllm ..d Ki III Olh rr Wllrd tlir'~'lur "f Ilw \11111(IUl(lr) \.:11111ill uinl= I~~h I Eilllt'ali"n I'rosrlllll 01111Lilull! I.. !.mlll ,Ii r"l·lur of ,Ill' \ nllllllr;'r IJI"'P' '''' 1' 1" )~ I'n m. \1 •• \\ II n! hlld ~" I" rolll ~ 1111' \'1.1' dil'Pflur m l l'l' I M~. Wnrtl l·;'('j,h .. tI Iwr IInd.. I·I\I·lIdllllh· ill'J!;I'i'" frlll1l Ihr U n ilrr~i t ) " f \Iio illi li nd h..r III'" 1l;'KN'Cfl'/illI tllc Unlll"'gity of /\ llIhu lllll S('h"ul " f I.,,". SI,,· prl' du u ~! )' ....,lI'k("d II ~ II ll oti(III(l1 hun k OUll !UltiO ll ll l tl'lI ~ t " XIII11i ul' l". (l ~ .... ,·11 n~ flo'plI l)' UIlUI·I... " KI' IH'l' fl l . Sl lll!' II f AIIII'III1UI Orfice AttOI'llI')' (;1·III·ru!. nilll iulIl lIlll',·o l. ,!il·j.lou. ~h. Lund Wilt 11rI, .. iou.ly 1'lIIlllo)r,I II' ~" n i ,w ~lIt rr II\lOr nC) for tl,r Ol,thfln 1I "!liM,,1 Officr of 1...ej;1I1Sen k,'a of Alol fa IIU,. Sin' i. II I'nuI IlMIt' ur Auhurn l. n i ~ ,' r,. il y II I hl

recei"e,lllcr law dl'IlI'1'f' from

tlil'

Unili'rai,y.,f \ lululIIllI School of I,u,," in 19WJ.

I.md~

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NOTICE OF ELECTION Notice Is given herewith purSII8nt /0 the Aillbama SItItS Bar Ru/os GovermnQ Efflf:rion of Prasldont-Elect tJnd Commissioner.

Presid ent-Elect nlll AlaDamo Slate Ber will elect 8 president-eleclln 199910 assumelhe presidency of thlt bar in J uly 2000. Any Clndidate must bo 8 membor in good standing on Mefch 1, 1999. Petitions nomlnotlng ft candldato must bllllr the signature 0125 mem-

bers in good standing of lhe Alabama Siole Bar and be received by the secretory of tha state bar on or before March 1, 1999. Any cendidalo for this office must also submit with the nominll1ing petition a black and white photograph and biographical data to bo pJblished in the May 1999 AI/Jb/Jm/J LBwyef, Bellots will be mailed between May 15 end June 1and must be received al Slala bar headquarters by 5 p.m, on July 13, 1999.

Commissioners Bar commissioners will be elected by those lawyers with their principel offices in the following circuits: 8th; 10th, place no, 4; 10th, placa no. 7; 10th, Bessemer Cut·off; 11th; 13th, place no, 1; 15th, place no. 5; 17th; 18th; 19th; 21sl; 22nd; 23re, placa no. 1; 30th; 31st; 33rd; 34th; 35th; 36th; and 40th. Additional commissioners will bo eloctod in the$o circuits for oach 300 membllfS oftha state bar wlth principal offices herein. The nnw commissioner pOSitions will be determined by II census on March 1, 1999 and vacancies certifled by the secretary on March 15, 1999. The terms of any incumbent commissioners are retained. All subsequent terms will be lor three years. Nominations may be made by petition bearing the signatures 01 five members In good standing with principal offices in the circuit in wf>ich the election will be held or by the candidate's written declaration 01 candidacy. Either must be reclived by tha secrelary no later than 5 p,m, on the last Friday in April IAp'il 30, 19991. 8allots w~1 be prepared and mailed to membors between Mt y 15 and June 1, 1999. Ballots must be voted and relurned by 5 p,m. on the second Tuesday in June (June 8,(999) 10 state bar headquarters.

IMPORTANT! Licenses/Special Membership Dues for 1998-99 Aliliciinses to prilcticllillw, 115 welles special memberships, are sold through the Alabama Stllte Bllr headquarters. In mid,SlIptember, a dlllli invoiclllO be used by both annuell cenSIl holders end special members, was mailed to every lawynr currantly in good standing with the ber. II you are ectivoly practicing or enti cipate practicing law In AI8bamo b&twfJ(ln October 1, 1998 and Soptllmbllr 30, 1999, pleese be sure thot you purchase en occullationailiconse. Ucenses are $250 for the 1998·99 bar year Bnd payment should havo boon RECEIVEO between Octobor 1 and Octobor 31 in order to ovoid an automotlc 15 percent penalty ($37.50) Second notices will NOT be senti An allornev nOI engaged in the pnvate prectice of law in Alebllme mBY pay the special membership fee of $125 t3 be con· sldered a mlmber in good standing. Upon receipt of peyment,those who purchaso a license will be mailed II license and a wallet·size license for identification purposes. Those electing speciel memborship will be sente wallet·size 10 card lor both identification and receipt purposes.

If you did not receive an invoice, please notify Diane Weldon, membership services director, at 800-354-

61541in-51'te WATSI or 13341269-1515, ax1. 136, IMMED IATElYI U O ..... c .. " "0

""---

It you'ro not Insurod with the Attornoys' Advantage Prot08slonnl LlubUJty Insu1'o.n oe Progro.l1l .. . you should obJoot to your ourront InsurOI' on tho followlng grounds:

1. You m a.y be paying too much for your liabUlt.y coverage.

2. You may not have the broa.d coverage you really need. It.ornoy8· Advantage ProrOOlJlonai t.labUity Insurance otrCI'8 brood oovo~ ... up to 110 million In IImJt.8. f.>rognun bOnonl.8 Inc ludo:

• Flr.t Dolillt' Defenle • CllI.tnllJ ElfPeluie In AddlUoli to UKbllity Limit.

• Rhlk MlI.nll.l'ement PrOItt''''"

· .,.n

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RECENT DECISIONS By lVilliom M. /lowell, jT" lJo/}id B. Bf/me. Jr., Rachel Sondt.'T's·Cochrul/ and lVilbur C. Sillwrman

Recent Decisions of the United States Supreme Court- Criminal Traffic stops and To,."y V. Ohio

Knowlu v. Iowa, No. 97.7507, _ U.S. _ (Ikcember 8, 1998). TIle Supreme Court. in Plorilkll!. Royt!r. <lGO U.S.49 1,500. 103S.CL 1319. 75L.Ed.2d 229 (1983), held thai an inll('sligative detentiOIl must be temporary and hut no

longer than llectSMry to affect the pur· stop. In KnotL'fcs, Chief Justice

po5e 0( Ihe

RehllQuis\, writing for the majority, found that a "routine traffic stop. on the other

hand, is a relatj\'el)' brief encounter and 'is more an.ll0g00s to a SO«llled n'frJ/stop than to a formal arrest: Patrick Knowles was stopped in Newton, Iowa after being clocked driving 43 mph where the speed limit was 25 mph. The polict o(ficer Issued a citation to Knowles, although under Iowa law, he might have arrested him. The officer then conducted a full search of the car. and under the driver's seat, he found a btlg of marijuiH\l and 11 "1'01 pipe." Knowles was then arrested and char"ed with a violation of slnle law dealing with controlled substances. Ilefore trial. Knowles moved to sup. press the evidence arguing that the search could not be sustained under lhe "search incident to arrest" exception recogni?ed in Uniled Sioies II. Robinsoll, 414 U.S. 218 (1973) because he had not been placed under arrest. The trial court denied the motion to suppre$.5 and found Knowles guilty. The Supreme Collrt of Iowa. sitting (!II bolle, affirmtd by a divided court. The Iowa Supreme Court upheld the constitutiOtkllity of the search under II brIght-line "search incl. M

dent to citation"

Amendmenfs warrant requirement, reasoning th.ll so long as the arresting offi· cer had probable cause to 1l'klke a custodial arrest, there need not in {act have been a custodial arm!. The Supreme Court aranted t;erliQran' and reverscd. Chief lustice Rehnquist found that the state's justification for tlulhority to Htlrch incident to arrut. i.t., the need 10 discover and preserve evidence, missed the mark. The Chief Justice wrote, "", Once KnO'o'.'les was stopped for spteding and issued a citation. all the evidence neces· sary to prosecute that offense had been obtained. No further evidence of excessive speed ""'liS going to be found either on the pers(ln of thl: offender or in the pa.~senger comp.1rtment of the car." In the case tub judice, the Supremt Court refused to extend the bright-lint rule of starch incident to arrest to a situation where concern for officer saftty is not present to thf same extent and lhe concern for destruction or loss of evidence is not present at all. The Fourth Amendment and the c •• ua. visitor Millllf!soi a 0. Cilrier . No. 97- 1147. _ U.S. _ (lkcftJlber I. 1998). Does a defendant, who WIl! visiting in another ptrson's apartment for a short time, have a legitimate expectation of privacy in order to claim the protection of the Fourth Amendment? Asharply divided Supreme Court answered no. II Hinnesota police officer looked in an apartment window thro(lgh a g~p in Ihe closed blinds ;lIld observed Carter and Johns and the apartment's lessee oogging cocaine. After the defendants were arrested. they moved to S~pn.~S5 the cocaint and other evidcJ\Ce obtained from the apartmenl and IheirCOlr, arguing th.1t Ihe officer's initial observaliorl was an unrea· sooable search in viclation of the Fourth Amendment. The defendants were con« T he V.ICtedo(" s...te drug ouenses. Minne.sot.ltrial court held that they were not overnight weial guests and were not

ttction. The t'olinoesota Court of Appeals held that Carter did not tuve "standing~ 10 object to the officer's actiON because the evidence indicated Ih.al he used the ap,lrtment for a busine~ purpose-to packagc drugHlIId ~cparl!tcJy affinned Johns' conviction without addressing the "!tanding" iSlue. The t'oIinnes0t3 Supreme Court reversed the intermediate lIpptllllle court and held Ihat the defendanlj had standing to claim lhe Fourth Amendment's protection bcCIlUse Ihey had a legitimate eX(JCctfttton of privacy in the inv;,ded place. and fllrther, that lhe officer's obsclVation constituted an unreasonable search. The Supreme Courl reversed the Judgment of the t'oI inncSOla Supreme Court and remanded. Chief Justice Hehnqulsl, writing for a sharply divided Court. heklthat any search th.,t may have occurred did not violate Carter's Fourth llmendment righlj. The Chief Justice leasoned that. M ". to claim the protection of the Fourth Amendment. 11 defendant must demon· strate lhal he per5()nillly has an eXpt<;la· lion of privacy in the place searched. and that his expectation is rell5()nable ... MThe Pourth Amendment pTOteclj ptrson$ ag,llnst unrea5()nable searches of their "persons :md houses" and thu5 irldicale$ thM it Is a personal right that must be Will..... M. Bow.n• .Jr. Wtlilwll

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invoked by an individual. The extent to which the Amendment protcctJ people may depend upon where those people are. White an overnighlguest may h:iVe a legitimat e expectation of privacy in someone else's home, see, />1i1mesoto /J. Olsoll, 495 U.S. 91,98, 99. 110 S.Ct. 1684. 109 L.Ed.2d 8:') (1990), one whQ is merely present with the conKn! of the householder may 001. See. Jones f'. United States. 362 U.S. 257, 259, SO S.C\. 725, 4 L,Ed,2d 697 (1960), The Chief Justice went on 10 rea~on ttl<lt an expectation of privacy In commerci:ll prOjlt!rty is different from and Ie" than a similar expectation in a home. See, NL-'l1J twA' f'. Burger 482 U.S. 691. 700, 107 S.C\. 2636. 96 Ud.2d GOI (1987). In this case, the purd~ commercial nature of the tran8.~clioI'L~, the relativdy short peri. od of time the dcfelldants were on the premises, and the lack of any previous connection bel'ween them Imd the householder, lead to the conclusion that their sihl.ltion is closer to that or one simply permitted on the pr<!mises. TIlliS, any search which may have occurred did not violate their Fourth Amendment rights. l1cx:ause Citrtcr had no teltitim<lte expcctlltiOt) of privacy. the Court need not decide whether the officer'l observations constituted a "search" within the ~aning 01 the Pourth AmendlTlent.

Recent Decisions of the Supreme Court of AlabamaCriminal This InstlilhYitnt includes a number of significant opinions by the Alabllma Supreme Court. Without commenting on the substantive merits of the \'arious decisions, the court is shOWing a healthy Irend to rC\'iew "scttled" principles In the area of crimInal law. Instruction Insufficient to

cure preJudlcl.1 qu •• tlon Ex IHlrie Sparks/ f)_ CitV of We(wer/, Ala, S, Ct.. 19708 12. 11flM.l8 (Almon). This case is so signiflcant it was report·

ed in DNA's Criminol Low Ri!pOrter. (See vol. 64 00. 10, p. 178. 1219/981. Sparks was charged with DUl llnd running II stop sign. On cr05s·exllminlltiol1, the city'~ prosecutor asked Sparks if he recalled having bee" convicted of DUI on a previous OCc.1sion. The trial judge denied ddense counsels motion for a mistrial after giving the jury a cOrrC(;li\'e instruction and after no jurors indicated that they could not disregard the prosecutor's improper question. The cou rt of criminal appeals Ilrt'irmed with· out published opinion. Finding in a footnote thatlhe prosecu, tor's question WM indee<J improper. the supreme court stated thJl "the only questionlo be resolved is whether the prose, cutor's iml)r()p('r question w.u so prejudicial to Sp.~rk ·s case th"t it rendered Ihe circuit court's corrective Jury Instruction insufficienlto ensure II fair trial." The city relied on the oft·cltfd gcnernl rule that a corrective instruction by the trial CO\lrt is ordinarily suffic,ent to eradicntc any prejudice caused by an improper question. The Slipreme court responded with an unusual disreAArd of precedcnt: "I-IOWl'\l{!r. nolwithstondirlll the clIses cited by the Cily, lhis C~lrt cannot condone a prosecutor's attempt to eliciltestimooy about a dcfc1'ldant's prior convictions in violation 0( Ule general exclu· sionary rule against such evidence .... Moreover, reported cases inyolvinil such improper questioning-.lnd a subscqucnt dcni/ll of the defendant's motion for II mistrial-are all 100 common, as demonstrated by the number of such cases cited in the city's brief and in the court of criminal appeals' ~mornndum affirming Spark's conviction. Consequently. It IPlWln to thia Court lhat the cum n! approach to these situaliona 18 ITladequate hl80far /Ill it allow. IJtOfteeuton a 'fNe . hol' at u king an impropt!r qu c~ tlOll about 1 defendant', prior criminal record while I)lw lding little mu ns 10 prolecllhe defendant', rlghlto 1 fair trial other than a mere rom ctl\'£ inl truction to JIII'(I" . which I. IIdminlstert!d only Ilfiir the defendsnt hI" been exposed 10 the prejudIce C/luted by the prosecutor', quu tlonlng.

previously been convicted of the ,.une offense for which he is then being tried, it Is dimcult to expect that a jury could, even in all earnestness. completely disregard the prosecutor's improper (luUtioning in reachIng its verdict. There lire l ome errors that simply Cllnnol be com cted with a mere comcUw [nstrucUon 10 the jury... (bold added) M

Chief Juslice Hooper and Justices Shores, Kennedy and Lyons concurred in this opinion by Justice Almon. Justice Cook concurred specially. He noted that the question in this case wa$ p;lrticularly prejudicial. Iloweo.>er. he also noled that trial judges commonly cure improper prejudicial qucSliOtls by a query to Ihe jurors lind his concurrence there ~'as no indic.llion that this Ilrocedurf for curinll error \\'a~ no longer" 11rOI)Cr mean~ for addressing Ihis problem. JU5tice See concurred in the result. He noted that "lalltilOUllh generally a trial Q)\trt's immediate instruction to the jury to disreg.1rd lin improper prosecutorial ques· tion will cure any potential prejudice, ... lhe question objected to in this case was so prejudicilli lhal the prejudice could nol be erased by an instruction." Justice J'oladdox dissented without opinion,

InsuHlclent circumstantial evidence BxporfI1Mitchell,I961973.10/23198.

This ease involved a youthful offender "conviction" for then of property ill the ~cond degree. The defendant was accused of stealing nitrous oxide IlInk! (rom a hospital. I lCl\Ye\'er. the tank! were never round. The defendant WlS admitted to the emergency room on the early morning of August I, 1995 with II $eVi!re injury to his hllnd, He had be(l1 seen in the IIfea of the lanks on the night of June 28th. Although the opinion dots not state the ex.'ltt date, a blood trail W<\'l discovered (apparently on August I) leading n.vld • • Byrnot, Jr_ 0aVlCI9 9." ... .it , •• lJI'adullte QlIIIII

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from Ihe area of Ihe lanks to Ihe emergency room, HO\vever, there WI!S no testimony Ihat il ....'as the defendant's blood or that the de(endlnt was near the tanks on the morning of August I, The court held thai "!clircumstantial evidence is suffi· cient when it i5 so sl ronll: ilild cogenl as to indicate the l{Uilt of the defendimt to a moral certainty. ThOlt ('Vidence should 1I1~ txcludt any Infc rcnc~ cOl'Isisttnt wilh the deftndant's innocence." Jeopardy f.:xparte Ct'll/rl/, Ala. S. Ct, 1970961, 1/8199. The court held that it reversal based on insuft1dent evidence bars a retrial (or the $<1me offense. Gentry's conviction fo r (,Ipital mv rder was reversed after the Alabama Supreme Court fO\uld Ihe evidence InSufficlerlt to prove the burglal')l portion of the charge. The court held that he cannot be retried for capital murder even though the court admitted that thei r decision reversing Gentry's conviction was "erroneous" and "incorrectly states the law lof an unlawful remaining in lhe residence with the intent to commit a crime) of this State relatinA to the sufficiency of the evidence to prove burglary." Ste/:''x parte f)urJi.~, bel()W. In lim/le.lIl}. Slate, Ala. S. Ct. 1961992, 9/1198, the onl)' evidcr'lce (Or'lr'lcctlr'lg Lindley to the crimes charged was a slattment made to an investigating offi· cer by Lindley's (riend, Allrinl the friend tesli{ied that he was intoxicated when he made the statemenl and did not remem· ber makin" it. The court found th'It the trial court erroneously admitted hearsay evidence of the friend's prior inconsistent statement a5 substantive evidence of Lindh.')"s guilty. "The tolll! ~'Videnc~ offered by the stOlte IIr'1 d adrllittcd by the trial court, however, whethtr erroneously admitted i1S submmtlve evidence or not, was sufficient to sustain a guilty verdict. Thus, the Double Jeopardy Clause does not preclude the state from retrying Lindley. ... The state should have the opportunity to submit oth(!r el}idl!11CfJ of Lindley's guilty:' (emphasis added). Justice Almon dissented on the ground that in remanding for iI n~'W triill :so that the Slate will hav~ an opportunity to fi nd new ('Vidence. the majority .. lIows the State "two ,bites at the 'same apple"'-just what the Double Jeopardy Clause was designed 10 prevent. 134 MARCH 1000

Burglary

f:X parll! /)(1111\ Ala. S. CI. 1961993, 118199. The court, in a per curium opinion, reverSf!d i~ prior holding in Ex partll Gelltry, 689 So.2d 916 (Ala. 1996). Under § 13A-7- 1(<I), tile sUtc is "no longer required to prove thaI the defendant broke Hnd entered the premises. Instead. the strictures of that element have been replaced with the general requirement of a tresp.1Ss on premi.es through an unlOlwfu l entry or ~n unla',v(ul remaininl:[." "ITlhe evidence of a commission of a crime, ~tllr'rd i r'\g alOrlC, i~ Inadequate to support tht finding or an unlawful remaining, but evidence of a struggle can ~UI)p ly the necessary evidence of all unlaw(ul remaining. ..... The evidence of a struggle giving rise to the inference of an unla .....ful remaining is supplied by Davis's choice to kill by II less-than· instantaneou5technique of 5tri\ngul<ltion and by his use o( three nonfatal st<lb wounds to th~ victim'5 lower back." Justices Almon, Shores, Kennedy and Cook dissented. Rej~c t ing the conslructiOrl of "rer1'lainir'lg urI lawfu lly" adOlltcd by the majority, the dissenters argued that such a construction "has Ihe polen· tial to make almost ever murder commit· ted indoors a capital murder." The major. ity's inference of the victim's implied revocation of privilege to remain on the premises results in the defendant beinll: "'g\u:ssed' into a cl,Ipit(l1 conviction."

Recent Decisions of the Alabama Supreme Court- Civil Appollate procedure; third· party plaintiff I, required to file an appeal In order to protect It, claim 0' derivative liability f.x porte P & H Conslruc/ion Co., 11K. (III re lJarber rl. State Qf flluboma),

1998 WL 77173..1 (Ala., Novcmbtr 6, 199B). Plai n tirr~ sued a contractor alleg.

ing negligence or wantonness in con· nection with the contractor's work on bridge pilings. Theconl ractor then filed II third·party comp~'inl seeking con· tractual indemnity against the sub·con·

tractor Ihal had performed the pile.dri· ving operation. The trial court granted the contractor summary judgment on all claims asserted in the compl~int (111\\ granted the sub·contractor summary judAment on the third-party complaint. The pll,intiffs hppcaled tht summ~ry judgment entned against them. On appeal, the AlllbluT'1l Supremt Court reversed in part the trial court's summal')l judgment. finding sufficient evidence to state a jury question as to plaintiffs claims of negligence and wan· tonness against the contractor. However, the opinion on appeal did not address the summary judgment entered ag~inst the cont ractor on its thi n,l-party complaint as the contractor did not filt an appeal from that judgment. After rerl1anll, the suh-COrltractor filed a motion 10 declare it a non·party, based on the COrltr,lctor's fllil ure to al}pelll, The trial court denied tills motion, set· ting aside its earlier summary judgment in (avor of the sub·contractor, The sub· contractor sought a writ of mandamus. The Alabama Supreme Court phrased the i~s\re before it a$ whether a thirdparty plaintiff was required 10 file an appe,11in order to protect il$ claim of dC:rlvative liability. The Court concludc:d that becaust, under I~ulel 3 and 4 of the AlabMtla Ilules of Appellate Procedure, the limely filing of a notice of lIppeal is a mandatol')l jurisdictional act. Thus, the fnilure to {ile such a notice within Ihe time allm...ed is fata l to a claim of deriva· tive liability. Because thecol1tractor fa iled to timely appeal (rom the 5ummilry judgment entered against it. the Court held th.at the judgment WitS enforceable. Awrit of mandamus WOlS issued, ordering Ihe tTl;11 court to dismi$.~ the ~ub-cilr' tractor liS a thi rd-party dtfendant. Court finds slnglo transaction between out-of·state defendant and Alabama plaintiff sufficient to Invoke general jurl,dlctlon Ex parte ,'hase Iff Construction, fllc. (Ill rc Col/illS Siglls, Illc. /.I. Phclse fll

199$ Wl.. 787347 (Ala., November 13, 1998). An out-of· ~tl1ti.1 company irlitiated C(lrltact with an Alabama-based sign manufacturer and requested that Ihe Alabama manufac· turer produce signs to be installed in Virginia. When Ihe out·of·state defen· dant did not pay the full contract price,

Collslrllclion, Inc.),

the sign manufacturer brought a breach of cont ract action ~gainst the company. Defendant moved to dismiss for lack of personal juriwittion claiming that it lacked suftlcicnt minimum contacts with the SUite of Alab.1ma to confer per· $()nal juri~diction upon the tri;ll court The trial court denied the motion to dismiss and the defendant petitioned for II writ of mandamus and. alternMivtly, for l\ writ of prohibition. In arguing that the trial court Jncked personal juri5diction. the defendant relied ullOrl previous decisions of the Alabama Supreme Court, in which the Court stated that "Itlhe purdl<ue of goods fabricated in:a forum state. and of services provided b-I a resident corporalion of a fo rum state. does not alone provide the requisite 'minimum contactj' for e~e rcise of pe r~ollal jurisdiction within the bounds of due process." In rebuttal. the plaintiff established thM the defendant plilC«! iln unsolicited telephone call to the Alabama manufaclurer requesting in:onnation about its products lind services; that various oral and written correspondence followed that unsolicited teltphol1c ca ll: and that. upon receiving the signs in Virginia. the defendant forwarded a Pilrtial payment to the Alabama company, The Alabama Supreme Court noted that "Iwlhen 1lOI1re5:dent defendanLS have initiated COlllllcts with this state solely for U,elr own profit, ava ling themselves of the privileges of conducting business here, this Court h.'l$ dttermined that such activities were su(fldently s}':Itema(ic and continuous to support a finding 01 general jurisdiction and has determinl'd that it was fll ir and reasonable and thus consistent with the principles of due process to invoke such jurisdiction.~ The Court concluded that, in this case, the defendant 's actions v.~ re filr more tlmn the simple purcha.st: of goods fabricated In the forum state as the defeodilrt ordered the manufacture and installation of the signs and Initiated the contact with the State of Alabama for iu OI'.'r1 profit. 11IUS. the Court held. the defendant availed !tlelf of the privilege of doing business in AlabMTh1. Bee-1Use the litigatiOll at iMue arO$! out of the defendant's contacu with Alabama, the Alabama Supreme Court held that the trial court had general jurisdiction over the out-of-state defendant. Justice Lyons concurred in the result

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CURATORS. INJUNCTION. APPEAL. ATTACHMENT. DETINUE ADMINISTRATO RS. GARN ISHMENT. l.ANDLORD· TE NANT CONSERVATORS. ALL OTHER FEDERAl. & STATE COURT BONDS

1-800-274-2663 on ly, finding that Decau5e the defendnnt 's contacts with Alat»lma related to only one transact ion, any Jurisdiction uercised by Alabama cou rts must De specific rather than generill. Magnuson-Moss act prohibit. Inclusion of binding arbltr•• tlon agreement In written warranty Sou/hcm t'/lCf'{JY Homes. !IlC. II. !..LV! , _ So. 2d ___ rots. 1970105. t970106.

1970107, 1970298. (Ala., January 8, 1999). In this nve-Ia-four decision. a Ill.'\jority of the AIl,b.1ma SllPreme Court held that the Magnuson-Moss Act mard11es that COIlsumers l\lIve acce~ to a J~Jd icinl remedy nnd. lhus. prohibig the inclusion of II binding arbitration provbion in a written warranty gowmed by this Act. Justice Almon, with Justices Shores, Cook, and Kennedy concurring. concluded that "although several seclioru of the Magnuson-Moss Act make referer\Ce to infOn1'l.11 dispute resolution procedures or mcchanl~m~. those and other provisions also make It clear that il consumer is to have access to a judil;ial r~medy, , . .a war· ranty may expressly sel forth an informal dispute-resolution mechanism and may m.1ke the use 01 that mechanism a prerequisite for filing a court action, but it r'lll'y not provide that the .ue of such a

mechanism is binding or \lUlt it is II bar to court action .~ III the fou r-mcmbtr n'li\iority opinion. the Court relied heavily upon decisions i» uw by II federa l district court in AI.,bama and the Federal Trade Cotllmission. the agency cha",ed with implementing and administering the r-1agnuson-r-loss Act. Justice Houston's special concurrence created the five-member m;ljority. In his concurrence. Justice Houston noted Alabama '~ longstanding public policy against enforcement of pre.dispute arbitration agreements and deferred to the interpretation given to the MagnusonMoss Act by the federal district court His concurrence a l ~ recogni Eed that under well-recognized principles of statutory const ruction. the subsequent. II

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Iy enacted and more specific provisions found in the Magnuson-Hon Act superseded the general provisions o( Ihe Federal Arbitration Act. Chief )usti c~ !--looper and Ju ~t ic~s See. Lyon~ and Maddox voted 10 enforce the Olrbilr&tion prOvisiOl' found in the warranty agreement. based upon "an unbroken line of decisions starting in 1985" from the United Slates Supreme Court. The four-member minority noted that the Supreme Court had recognized arbitration as an appropriate fo rlim in which to resolve various (ederal claims such as the Sherman Act. IllCO. the Age Di$criminalion in Employmenl Act. the Secu rities Exchange Acts of 1933 and 19311. brld conduded thrr.1 the rationale of these cases was also rr.pplicable to the r.lagl1uson-r.1oss Act.

Recent Bankruptcy Decisions IRS prlorltv claim properly perfected .s a tax Uen, retains priority statua even after Ita lion perfection

Itl re ThomM NiltOll Haus,' Bernice Elizabeth l-Iaa5, _ ~:3d_. (II th Cir. Dec. 14. 1998). 1998 \V.I.. 864566. Debtors owed $685,000 for federal income ;md employment taxes, secu red by a federal tax lien prior to filing a chapter II petition in 199 1. Of that amount, $68,000 repres~nted employment trust fund Irr.xe$. At the time of fil ing, debiors owned assets worlh $259,000. Additior'llllly, 11101;,1 of ~pprox Imrr.tely $7 1,600 in cMh W:lS :lccumulal· ed post.petition. These sums were :lv3il·

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able (or creditors. f he courl dislin· glJished the type5 (J ( claims recogni1.ed by the Code. to·wit: ~ecured. priority .md geneT,,1 unsecured. It then ~taled th'lt a ~cc ured claim could not exceed the value of its collateral. Here, the v;,l ue of the coJlllter/l 1securing the tax lien was 5259.000. Thus, the secu red tIDI lien exhausted the $259,000, with the excess of the tax claim being unsecured. The courl noted. however. thai the $68,000 trust fund employment tilX had priority. was not dischargeable under §523(a). and thai n pl"n could be (onfirl'ned only If II provided for pllymerll of ~uch trr.xes in full \.I·ithln six yerr.rs. The cOurl furthe r noted that the plall must be feasible and Ilroposed in good faith. In this case in prior appe,lls. it had been held that the IllX lien was senior to a real est~te mortgase ;lI1d that lhe income tIDIes were dischargeable. The present debtor's plan provi~d Ihill lhe 568.000 trust fund tax be paid in full from the $7! .600 which wO\Ild mean that thi$ lax liabitity be trC'lled a-; a secured clnim. In turn. this would relluce the income tax portion Of the ~r.'ured claim from $259,000 to $191.000. The balance thcn would be unsecured. The 1)lan proposed to pay the secured claims in monthly installments o( $1.345.72 over a 30.year period (rom the income of Thomas Haas (who is 11 (j8-yeiir·old ilttomey). The unse· cured balance of 1;1}: claims was proposed to bt Pi'id $500 per qlmrter over five: ye~ r5 resu ltin~ in iI paymenl.withoul interest of approximately 2 ~rce nl. The EI(:V(::nlh Circuit reversed the district court's ordcr affir m nil the bankruptcy court'~ oonfirmltlion order. The Court o( AI)peals held that the plan provided (or only a nominal recwery o( the unsecured talC cluims, th~ t it ""'\IS improper to treat the trust (und tax as a secured claim. rather than as a priority claim since Ihis ",,"ould reduce thc INS recovery by $68.000. and that this would ch,mge the meaning of the hLwfor it wOuld re~ult in forfeitingthc protection of a priority claim. The court al:lO ruled that the plan, which conlcmplfllcd Mr. Hrtllj continuing 10 practice law anotiler 30 years on a full time basis, was not feasible as it did not offer "a reasonable assllr~nce o( success." The court did not comment on whether Ihe plan WilS prOIX'r.ed in good faith. nor did it address the nholute priority rule.

Comment: The hislory of the prior 1"'0 ilppelll ~ ,lIld Ihe confirmlltion of Ihe bankru ptcy court. plus affirmance by the di ~ tri ct court. rr.re shown in the syl. labus :lnd parti<llly in the opin ion. To the debtors' attorneys, il was a good try, which worked through the b~n kT(lptcy and district courts. but fail ed at the circuit cou rt level. The ms is a lough adversary. All you ever wanted to know aa to the §1111(bH21 otectlon, and more to-wit: (1) whon 8 chapter 11 appeal Is not moot, (2) chapter 11 reorgani zation of consumer debt, (3) strip down 0' mortgage. In chapter ii , (4) application of post.petltlon pre-confirmation paymonts. III ro Charles Weinstein (lilt! JQUt'(l Weinstein. 227 B.n. 284: 3J B.C.O. 632

(BAP 9th Cir. Nov. 10, 1998). First I~ederbl BILI'rk of C/llifomia (Brr.'lk) in 1991 lellt $ I million to debtors secured by a 10.463 percent mortgage on their re5idence. In 1994, a(ter dcfaulting on the loan. they fIIcd a chapter 11. Debtors made adequate protectiorl payments of $7,000 from April 1995 until plan confir· mat ion in October 1996. 13ank's total claim was $1,012,700.71 . In an evid~n tiilry hcaring. the property was valued at $850,000, and Bank lhen made the eleclion undcr § 1111 (b)(2). At Iht connrmation hearing, the courl d~lermincd that the villuc remrr.ined at $850.000; $98,000 had been paid during the chal)ter II to Bank. which sum the court held 10 be a credit agllinst the $850,000 secured debt. The confirmation order provided for" secured claim o( $752.000 10 be p<lid monthly, with interesl at 9.490 p(:rcent, for 120 months, amortiud over iI 30year period but with a balloon paymenl al the end of the tenth y~" r. Also, if the fair mrr.rkct value (FMV) of the property rr.1the mblurlty drr.te or ,,'hen sold exceeded $850.000. &mk would receive all incrcbse up to $1 62,700.71. Bank objected and. on losing. appealed on severailirounds. First. debtors claimed the ilPpeal was moot beC(luse the plan was substantially consummated to an extent thnl $Cttin~ it ill;ide would ruin lhe entire reorgani?.... lion. and thai as the conflrmrr.tion order had JlOt betn stayed. effective relief was

no longt~ possible. The court disagreed. staUng that if the court elIn fashion relief by simply ordering a parly 10 pay more, the appeal is not moot. even Ihough II 6tay Willi not requested; In this case. if the $90.000 had been misapplied, such could be corrected by having the dtbtor pay more subsequent to the end of the term. Thus. th ~ IlpJ)('al W,15 not moot. Next the court rejected Bank'S argu· ment that chapter II Willi being sub\.ri!rled by allowing debtors to rwrganize their consumer debt. lind in II plan providing for a strip down of lhe mortllage on Iheir personal r~sldtnce. (Note: fo r the prllctitioner who recognizes thlll ' 1123(b)(5) Willi changed in 19!M. not to allow strip down on strictly residential property. Ihe case \o'1Ili filed before the change). The court said that the Code does not prohibit chapler 11 for con· sumers, that the slrip down of the resi· dential mortg.1ge \\as only incidental to the rest of the plan. and that nothing in chapter II law requires the property to be necess.11')' \0 Ule reorganizalion. The flAP in footnote 8 of its opinion arJ;ued that Ikwsnup. the Supreme Courl deci· sion disallowing lien stripping in chllpler 7. does 1'101 apply to chapter II reorg."lniUltion cases_ Next. the 9th [lAP. fu rnished a scholarly dissertation of §1111 (b)(2), by dis· cussing interrelatlons of n506 and 11 29. It stated that although 1506(d) strips the under·secured cred.tor·s lit n rrom the unsecured portion. and the under· secured creditor with II non-recourse ull5ccured claim would not be entitled to a distribution in bankruptcy because such creditor would not have II/I unse· cured claim.' 11 11(b)( I)(A) allows the non-recourse deficiency to become an unsecured claim to be voted at the dis· cretion of the creditor, Ilowever. if the § 111 1(b)(2) election is made, Ule elec· lion allows the non·recourse portion to become secured. albeit subject to certain differences which first eHmintlle Ihe unsecured deficiency claim together with lhe right to \!{lIe a.s "n unsecured creditor. and the deficiency portion can be [l.1id OVtr the life of the plan without interest. even thouJ#lthe secured por· tion is entitl~ to the present value of the collateral. This means that Ihe origi. 1'4'1 1secured portion should be paid the lIalue of the collateral in cash, or alterna· tively over a period of lime witll interest.

Thus. Bank's contention thaI it was enti· tied to the present value of Ihe deficiency was denied. Finally. the COllrl held that the $98.000 paid PQ5t-netition and pre·confir. mation as adequate prottclion Willi prop· erly allocated to the $850,000 secured portion because the U.S. Supreme Court had decided in Timbers that adequate protection payments cannot be u$td to compen:late the creditor for lost interest or lost opportunity cosl5. Further, as in

the instant case where there has been 1'10 depreciation in the collateral, the majori. ty view is that the payments ~hould reduce the secured claim.

Comment : This ;s a lengthy. well-reasoned opinion, The reader .... ho has similar problems should obtain the entire opinion. I do not know if the clISe i~ being appealed to the Ninth Circuit. A Bankruptcy ApPtllate Court is on lhe same level as a district court. •

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