Lawyer 5 84 web by Alabama State Bar Association

Alahama

, • sour 0

• Union Bank \\.Orks closely with many Alabama an omer-; in administration

of trusts and estates. We've built our reputation on prudent and progressive trust manab'Cment.

As Alabama's largest indcpcndem bank, our computerized system gives us state-of·the-art capabilities and gives your client lOtal confidentiality. All operational and investment decisions are made within our own Trust Depanment. And as a hometown bank, we tlJke pride in being able to give professional, personalized attention to every client. To find out if your client could benefit from Union Bank's rapidly growing Trust Department, conrner us roday.

IlIlkll BlIJ1K&

TRUST Membc. fOlC

60 Commerce Street

Montgomery, Alabama 36104" (205) 265-8201

Federal and Slate Postconviclion Remedies lind Relief

Denial Prllctice lor Trial Lawyers by Robert L. Pekarsky. D.D,S.

By Donald E, Wilkes. Jr. $52.95 S54.?5

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Social Security Disability ClaimsPractice and Procedure

By lack B. Hood and Benjamin A. Hordy. If.

By Don C. Keenan, Charles R. Ashman with Patricia A. Lucas, Contributing Editor

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THE MAY 1984

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- pg. 127 By contracl and SlalUies tile preva il· ing pany is frequenlly allowed to ~ co,'er atlorn~y"s fees. There are s". cific criteria lhal muSI be pro\'cn juslify an award of auorney's fees.

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On the Cover Pictured in connection wilh Ihis special i~ue focusing on "old build· ings for modern uses" are several his· loric Slructures bejn~ used as law of· fices. On the co,·tr are tile offices of: 1) Russell L. Irby - Eufaul" 2) Smith and Smith - Ph e ni x Cit y 3) SIOUI & Roebuck - Mo bile 4) Kracke. Woodward & Thompson - Binningh"m 5) Fulford, Pope & NatlerBirming ha m 6) Drinkard & Sherling - Mo bile 7) R\lshlOn. Slakdy.]ohns!Dn & Garren - Montgom<, r y 8) Pilgrim & Hope - Montgo·m c r y 9) j ollnoon & ThoringlOnMo m gomc r y

Midye ar Conference Highlights - pg. 132 The reinSlit\lt ion of tile MidWinter Meeting of the Alabama Slale Bar. reo named the Midyear Conference, was Quitea slIl"fess.lhghlighISof the i\-!a,(h 9·1 0 meeling inside.

Moy 19$4

ISSUE IN BRIEF U,>coming Mill' 18- 19

YI..S Annual Seminar Sandestin , Florida

J ul y 12· 14 Alabama Siale Bar Convention Mobilf'. Alabama

Augus l 2.9 AHA Annual M~i"8 Chicago, Illinois

The Decision Made -1)g·135

Lawyc:r groups wishi ng \nhave mctl;ngll li sled in this column should cont3(:t the Alabama Slate

Congral"l~t;ons to Waher G. Ward.

the winner of nlr AIa/)Q,,,,, ["'"'Yrr 5hQrl Slory Conies!. His entry. Tllr ikis;lm. b.aS('dona CharnbersCoumy trial. IS IlUblisl\ed Irlsid/:.

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Rehabilitation Projects Making Tics with Past - pg. 165 Rel1QValion 0( h,storic struct ures for

law orrlCl' use has IlecQmc an increa!;ingly popular "'cans of preservingour

archil«lural heritage. Tllere are sig. nificant lax and financing bencfil s 10 the att orney or finn who

availa~

under1ake such pro;eciS.

Rejection of Collective Bargaining Agreements - pg. 154 The Unned Statts

SUJlrHne

Coon

ruLed on In H:<, Bild; SCQ Ihal a bank· ru~ cy ,:ourl may permit rejection fA a collt'(!i.'t ba'lY'ill;ng agre..ment. This

decision may foreshadow future legis!am'c or judicial action in the bank. ruptcyarena.

Regular Features. I'resKlcnt's l>age ............ Exto;utive Director's Rep(M'1 ....... "" •....... About Mcmber!l, Among Finna,,,............. . Riding lheCircuits ......... Legislative Wnlp-Up ......... Recent Oocisionl ...... , .•... CLE Opp::>nunitit5 ........ CLE News .... "." ........ Bar 8Ma .................. C(lmmill~ Work ........... , General Cwnstl

124

125 138 140 143 145 150 152 160 162

OpinIOn' ............ " . .. 172 Oi!iciplinary Report ......... 174

The FinalJudgmenl •.. 176 Classified.................. 179

<Tresidem's <Tage

ne of tJM, many functions of The Alabo"", IA""""is IOkfep 1,1' informed aboullhingsot in-

10 Alabama lawY""" The only function of lhe I'resident's Page, the ~:~ecutive lJ;rcctor's ~eport and the MCI.E director.', r<:po!"l is to inform tet'l:$\

about activities, problems and coming event!!. 11 is the (lilly way I know to

communical e Willi !IOn\(' 7,CXXIla wyers. [ hope )'00 will take lime \0 gi.." these

,,"iclts aome lime. [\'1 a 1iult late, but it ;stOO fi'1illirne I have had the opporIunily tQ publicly thank l)ext"'" Ilobbs 01 Monlgooltf)'. Ihe enl ire Commillce on Ihe Mid·Wi n1<"" ConfCf"CflO%. the folk$ at Bar l-kOOquart~. the memben of 'M various Q}ffi' miutft. and all you wonderful people for the smasl!.il1t! SI.loCO!SS of the Mid· )"e,ar Confercro;e in March. This revi\'al of an old custom was on a trial basis. ~'ron\ the con,mcnlS J have received. the Ik>ard ol Ba r Commissiooe.-s has no clloK:e bul !(Icon\;nue;1 as a permanent ~n d. 00. annual activities. &Ilurday morning ollhe conference wasspent m'lt'Wingrommilt,-", repon.s. And wllat .epM! they W~! Lots of great programs are in the ,,'<Irks. We will be the better for it. The substance of the..:pons hal been furnished each Icx;al bar pregidenL Sl'l all 10 be .,-ailable to all the membel"ship. Rus ht on. Sta kel y •Johnston a nd Gar· re11: Robison and Belser, Webb. Crumpton and McCrt'gOr: and Jones. Mu rray.

Stewal1 and Yarbrough opened their olTns for our enjoyment. Thesf, are IOITIe alfices! J bet these finns have trouble JI'l1ting their lawyers to leave such ~."joyablc surroundings O~er the ..... eekend s, II you haven·t visited these offices you should try and do so the nut time you are in Montgomery. They are 5OII"ICthing. Our !>eX! rr>embership meeting is in MOOiif,. July 12th through July 14 th. T he program is s haping up as a blue ribbon affair. There will be several ( h,,,,goes '" the format thai I think you and your spouse w,11 enjoy. I thank each oneof you whoacoeptoo theinvitation tocomment on the MCI. E pnJKI1\m. You made !lOme excellent suggestions. TheCommission will take up each $UAA<'Stion in a continuing ef· fon to make the program one that fits the ,It'o.'ds ol the !lar.

I personally would like to"'"'" theday

soon when the Alabltma State Bar could go on video tape ..... ith both basic and adYllnced CU : pnJgr3ms that COlIId go anyplao::t in Alabama lhal the bus goes. Thai "·ay il wouldn·t make any difference if you had two or twenty lawyers. And the pnJKI1\ms could be enjoytod a ll time and pbcco lhal mel the Ir;tc;al

bar·, CQnI..."ienc::f,.

One thing J if,amed from lhe MCLE su ..... ey - we woold have a better Bar if we had eome way 10 get more input from the members. This is especially

In>('

10 mentbersllip needs.. Walter

Byars is busy putt;ng t 0II'!l her an excit· ing ~m for next year. He will em· phasi~ t\'cry member pal1icipation. You can helll him with your sugges· tions. K~qJ !hoIit cards and letters conllng. In response to a continuing oonccm by lhe Birmingham Bar Association we I1<tve appointed a committee on g!l\•• emment u~ the cl1<tirmanship ol Commilll1oner G~ry Huckaby. This oommiu~ will look into ~II aspects ol Silr i\dm'ntsu':ltion including the size and makeup of the Board of Silr tun· missioners. lhe numberollaw~~ represefl1ed by eilCh commissioner. and the way we nominalt and elect our pres;dent. This is a follow·UII on the work aI a like coonmil1ce chairmanned by Uarold Herring in 1he mid·sevf1Ities. lIy the time t his gets to you we ..... ill havcacquired ~1I\lroximately a hundred lIew members. We w~1corne each of them to Lhe prllCli~ of law. We look f...,..-ardto working with them. T oeach we extend an in,-italion to bocornt invol>-oo in lhe a ffain of lhe Bar. We do ~mllod them thaL the prada ollaw i5 a pmf('55ion and charge lhem to keep it so. As I loki the last grotIllol inductees - you ,,~ oouc,uoo to the purple: now he 10 the purpif,. What other nobihty is left in Amcrica~ 0

William B. Hairs1on.Jr.

M.,I!1t4

GExecutive ~irector's ~port

Midyear Conference

awyer, from throughout the Slale. aod IKIIf\e Abbama Siale Il.a r I1'I<:m bers residing outside of. Alabama. participated in the reinsl;I,,liQn (If the "MidWinter Meeting" on March9·[O,I9&i. Twohundred thirtyeight (238) lawyers rt'gislcred for this year', meeting. The cooler""""" ptan· ning rommiuee did a superb job. I"ve ne'o'Cf received more complimentary letten ~nd rommftll$ from an annual _ing. From a personal standpoint. the comments following our committee"," pons "..~ the most ~nling. I en· joyed "''3tchmg the eWlernenl of Bar members as thty ackl'lO\\'!edged 1he $JJiendId work of. our committees. h is \00 allen saKI that our COfnmillecs are the lifeblood of the !lar but. I fear. not truly belie,'oo or apprt'(iat~..:I. Tho:s<! prel<!n\ 31this meeting kno ...' we are in excellent health and Ihallhe ~is for 1985;s bright. Annuull\l.,.,\;"g I'bns for the Ju]y 12·14 ",",ling in Mobilearulll'lOllt complde. YOU'UIlOIC some changes In this yea r', rneeling lormal - the biaeIt being theeliminalion ollhe Annual [)inrw. Friday night is fret inlOfar as formal din~r plans a~ OOIla'med. Panicipanls will h.we a cocklail hour slani ng al 5:;);) p.m. 10 be hOliled by In surantt Specialists in the lobby oIllle ~iver.... iew Pla~.a. You will

be I~ lodmt in lhe reslaurant 0/. your dlOOCr or panakt 0/. _ 0/. the hospi· lalily planned by members oIllIe Mobile Bar. A new convenlion realu~, a /I.: igh 10111' 1'3 rl y wi Ih deuerts a nd a ft e!" dinner drinks. wilillegin at 9:;);) p.m. and will f~alure, by popular r"'luest. Ihe relum of Mac Frampton. Thunsday will be a CLE day wilh CBS Legal Corre!lpondenl Frro Gra· ham ftalurro al the Bench and Bar Luncheon. The Membership Reception " 'ilI be mformal, on lhe R,,'erv~w Ver· anda. w,lhenlerlammt'f1t by the popu. lar '¥rh~ on a String." The Young Law)"ft'$ ~tlOll ... ,11 pany on the USS 111,,/111,,", wllh music by the "Cruistmali<;s." A champagne brunch wil! stan 011 Saturday lhe ]4(h, 10110""00 by OUr business seMion and principal address by a nat ionally promilli!fll iegal persoo· ality. ~emernber (he dall'l - July 12· 1.1. The pI~ - lilt> Riven'jew Plaza. Mobile, Alabama, HOld rne1"\'ations must be I"fIlldoo Ihrough the Bar al lhe lime you register for the convention. Please do not call or wril~ for lhe hold reser· vatKJrlS until lhal time. lice nsc8 a nd Mernbershi,. Cards

Rtgrtttably.ltlOfethan th~ hundml Iaw)'eI"'I were delinquenl wilh InnS<' purcha!leS on lhe October 31. 1983 deadli~. Man)' deficiencies have been rorreo;:tOO, bul far 100 many remain. Don't fOl)(t!I. your 1984 Membership

Card is available ~ sending uS a ropy oIllle 196J.3.1 professional license. New C<>de" A"ailable The Code" Professional Responsi·

bility and I'!ules 01 [>iscilliinary En· fon;erTICnt have been reprim(..:i wilh all amendments Ihroutth January 1984. They are available for $1.75 each plll~ pOII!agt if mailed ($1.05 Third Class, $1.56 Fi rst CIaS!l~ Please ad· dress your reqllCStl !of copies !O Gak Skinnet". Tra vcll'ro,(rarns The Board " Commissioners \w; apprm'OO fivt tra,·tl "ferings for 1985. One sure to be popular is a Iwo-w«k trip!o Ireland. ScoIlarod and England. Tho: ~al plus of thifi trip is (hal lhe England port ion will lake pI~during 1m- American I~r A!;li(II;;ation's wn· "CnlK»t Im-re. These will be jII"OntOtOO by INTI'!AV. IncKlcntally, yOll' Bar incurs noex· pense in promoling I htse tripll. No rree In", are laken: however. in lieu of com pI,ltt<'fIt a ry tnp!>. a ash "'l ui vaient "incentive _IS is paid to the State Bar FWn<lal1Oll $I') thaI each member bendit5 "'lually.

lIelp , ,. lIel p , .. lIelp

TN A/oUIu .. J<l/... ~""".,.nlund neo!ds news of local oor activities. Please wrile 10 our editor, I know all 01 OUr

ALABAMA STATE BAR ANNUAL MEETING July 12-14,1984 Speakers: Mort Herold - Professional Memory Specialist Fred Graham - Legal Correspondent CBS News and other nationally known speakers

and

Programs: Analyzing Tax Shelter Investments Prepaid Legal Services Workshop "Collectibles Seminar" ot Point Cleor for Spouses

and

Socials: Membership Reception .RiveNleW' Veranda featuring "Three on o "String" YlS Party aboard USS Alabama featuring "The C fUlsematics" Nightcap Party with Desserts and After-Dinner Drinks featuring pianist Mac Frampton

• . • and much morel

- Riverview Plaza

MOBILE

Hotel Reservation RequellWlII Accompany CoIwention Reglllralion

Proving Attorneys' Fees in Alabama by

F1(11ndl appellate coon judge. some \""wly >"tars ago. in Lyk f'. l.yk. 167 So2d 256 (tla.

19(1). wrote:

Nl)lhu1lC 1....-.:1. (oquick", ,lie 1"'1;;e(l/ the "",mbe", d lhe bar r•• I,.,. IMn a good d,""u""",,, '", f«'ll. Soc" distu"""",. lI"lWnlly .......,.,;tt<! and h"dy. d",o • ..:!!o lho IIOInt,lnd prt~l~on It.. 1IO"1I"..,.ode nuhn" than the ntgal"'~, J.a ..'~"" can d,~ on al"'OIn any

""bjocC '" be nIfOllOontd but on lheq_

r_ Ihfy u~ ...lly ~.... nd "nIlod. F..... 1a",mI practn law for pleasun:; '"t1'Y r..... CIIn a/ Ion:Ito..nd t he subJ<ct of Ita .. t'1IIhllully 01 un"'ft'A1 intm;ot to tilt bar but thnubj«t .. oIl~n nogIooctod ocd toktn lOr l1l"i101«1 <ieople 11. ,mporllllOl' lot"'* ..'ho<1l", (M,a;ly Ij'-.ng t"", '"

.n ""''', This same judge C\'lI"R'<:lly pointed

out: "TIIl.,.e is hili I;(\ \e analogy bel ",,'Cn the eienlt'nt s t hm control the determination of a lawyer'$ fee aoo those whICh ~tcrmllle the CQrnpensation of

~icha .. llI .

Gill

and. appamlily. CilU$tS Ii aclion. N<x on Iy ha ,.~ new federal stal u te:s (and old ones. tOO, such as the antitrust laws) ,pawned numerous proceedings to reco,'er f<'t."S. but po1.lCt(Iural devices such as dallS actions. and shifting..-.:oromic timCII and toughercootroctual bargain· 109 ha"e also made the litigation of k>es far rI"IOI"eCQnlmooP!art:. Few wcll-d ... h· ed commercial COOlracts of any son IlQW fa,1 to COnta,n a provision for reasonable allOl"11l'")"s fff:!!; all brQIcer· <IgIe. warehou!le and shiPPlIl(l COntrllCU 50 pro-..•• as do "nually all contracts oli~mn'ty.

hlogllllon, the all~·s·fce

'"la,r'lIas clearly Wilgl,'to:Ithe lilig'llion "dog:' 1lw' older /'qui"alcnt is illus· trated on the story of the Selma allor· ney who represented a widow. suing the railroad to r<lCover lhe valuc 01 the

woOOw's row which had betn killed by a Ir,,,n. After a lrial. in which the at· toni<")' was suooes&ful in reo:r..erjng SI50 for the "aluc of the row. the attor· ney bined the widow $100. When the widow proIe$tl'!llrn, amount 01 the fee. the attorney oIferOO to submit lhe rea· !IOnabicroess 01 hi s fee to the COlIn. and tokl the widow. ··MMI. ./ones. ram coo· rodcnttllat any groupof attorneys wwld t6t,fy thai my fee is very reasonable:' To " 'hich the widow replied. "]..awyff Brown. ] am not intere:5tni in what a groupof att~y, would say. I "'ould liu 10 hear the leslimony of a group of

w;,x,..·s..··

In a _ t ca~ inlhe Middle District of Alabama./'rdr$t1H~. CoW"ial !-"iIW'" d,,1 S/"rl'iu. CV. 80-] 17·N. the amount rt'W"CTll bIe under t he T rut h·in·l.cnding Act was only SUXKI.OO. but based 00 a

skilled ,raflsmen III 01 her fields." Thai ""lcnlly lHIe fact " fn.'<luemly forgot· ,~.

The I)rJC(' fam,har and mulino' prac\;c" of calling a law)'er friend \0 aJrl'Il' 0\'('( to lherounhouse tote.;tify about

a fee in a di,"OrCt C3.iiI: or a prOmi!;l!Or)' nolC CiliiI: (~ nearly lhor only occa· sions 00 which fces Win 1l.'OJ\'erable) has oow pas.sed into histe>ry alQflg with such bc),o..·ed and lamented things as

demurrers. min'mum fee schedules,

Nich(Jrd II. Gill 'fffitwl his ~ "dt'1[md""k degrt:f' from Vllnderbill UNit.,rJjty ""d LLB. from 11t~ U"jvenjly of Vjrgi"u, Sd,()()/ Qf lAw j" 1965. He is" fNlrln~r

i" 1M MQ N/gomtty /hw fi rm of Copc/h"d.

F""",;o. 5croll1! & Gill.

claim <J:JJ7 hours 01 allomey' S I;nw. a fee pcllllOn ""as "ubm;ui.'d lor $3I$1!,o. Thedlstriclcoun 1..a.'Hompelll.'d 10 hold a hearing and rffiearing and tOl<;Sue t ""0 ~nglh)· ordo:ni. Noting the dispanly bet"'eetl lhe fee sought and lhe .mounl f1.'OO\"erabie. lhewun. w,th lusur13b1e llterblly. awarded a It'(' ofS6.OXl,OO.comnwnllr"Og ... SorrJey..I1t..... along lhe line. a <Mtam scnseol (lroIlOI"' lion has been lost." The U.S. SUjlreme COOrt has reo,.'fHly char;t(lcri>:<:d dispUIl'S UI'cr law' )'cr"s f~'t-'!I as "Of\(.' of lhe \east socially 1l<"Oduclil'c IYPI:S oIlil;lIatioo imagina· bIe." If~nslry ~. f:rk..,hl1rl. IQ:l S.CI. 1933 (191:13). and II\( Alabama SUi""l'ffit' COOrt has IW~ in II\( last l"""r under· taken 10 define II\( all\ll"OP'"1ate baSI'S f<or measuTlrog allorney's fees. fqrllm P. 1I';lIi""u. ro So.2d 4:l6 (Ala. 1!IIn). and 1'rfbkJ~. Miu,.. 4.39So2d 137 IAIa_

,.,"

Mosl pr.lCI;I~ are famIliar ,,-nh II\( landmark case IieIlIng OUI criteria l<or I~'n. Juhn",n ~. Crorgin 1I~'1. H..· prrss. 4l!8 F.l!d 714 (5th Cir. 1974). bul IlIlIb:lbly fewer are awareof Alabama's own similar case: 01 ,';ing u. lI.(il". "1.57 Ala. 463. 60 So."l.d ,17 (19:\"1.). Theclear teaching~ uf both II\( nnnt decisions "lid t I\(okkr guidelines a11': (I) pro;ing allOfI1eY's lee!I;$ no! a n1l'f"e mallcrof a lell ....... anorney'l balll'3rk judgment 3!1 10 a "rt'3SOll.1b1e~ I.....: ("l.l probably no other sIngle faclP" or oombina(ion 01 lactOl"ll 1$ as imporlam all tl\( remltli obtaIned: and (3) a mere lotaillng u"of hours !lmt'!I customary ralC5 "'ill no! be wlficient IOsusl aln a sognir1C3.m fee award. The Alabama Suprem." Court h~s plainly said. "We must bewarcol slav' ish adhc"'fl<.'e 10 Ihe lime crn~rion 10 lhe uclusion 01 other crit eria." 439 So.l!d al I'l l. For example. in l'....bil'S v. Mili'y. suo pra. lhe OOIJrt ,ndlCa(~'IIthat a I..... in the Ta"IIC brt ,,"'<'ffi Sl.'iOO a nd S16.700 wl,1Uld be rea!!OOablto. on proof 01 11-10 hours of auOJrnt)" S II nLe: i.e .. a fre of from S!G7~'iO to $1.:137.50 per hour. drarly based on tl\( elfteienl and eflect;I'e result Dblalllt'd , At tl\( same 11111(-', II\( court made II dear thai n ,,'a~ no! OI.ly (he r.-sul! "hich had to be con.ldered. On II\( other hand. in J'rar"S<m, (he hourly rale was S17,80 per hour, because IIIe COIlrl rt'gardt.-'d lhe hours as having

b,.'en unprooucli"e in ligh( of the size of II\( ll'o,lH'ry. Equally plalnl)·. lhe U.S. Supreme Coun. In IIt,..~. hdd. 'Hihe most critical faclp" I" the dtgr.... <J ~

" wII "eY'S

call

d isogru

011

(lflll Q.d UJI)' slI bjer:J 10 be melll jOlled . b it! 0 11 /lIe (lUeSlio ll II//ees IlIe), IIs /lIdl)' sla mJ IIlIile(l. "

obta111~,"

HX.! S.CI, at 19.11. and. '1 '1\( re.uh is "ha( rnauln.. Jbf4 3t 19.10. In IWbIn ~. Miky, supra, II\( Ala· bama ooun e~l'3ndcd tl\( hst <Jl cruena whteh had betn SO.'! 001111 Ki'IX D. Krill!, supra. from fiei,'<'I1 10 Iweh'e. Those twel,.., guodr::-poo,ts are: (I) The na(ureand ""I""of lbesubt<'<:!· manerof IhomLplo)"mtflt: (2) Th...... mlng .• ki ll arid labor "-'Qui, M

i ue 10 ,[0 proper discha'!l'":

ThI' ti"... """umed: (4) Tho profffillOlllll .xperiern and 1"tJ>U'"lIOn of lho attorney: (5) Tho "'<"IIkt of the altom,'r'_ ,..,. ' I""'sibohty. (6) Tho: _rtof the"""'"""obta",..d: (3)

(7) The rtIO!(III,Obio ape ...... incurml

by lhe ."orney: (8) Wlwther.le."Ii«d...-aonll ...... : (9) 1'1\( .... ,Urt.nd ~h of. prof. .

_ I rtlaloonshlp: (to) The I~ CUiI"""'nl~ charged In the lot:a~(y r...- .,mi!ar Itpl Str'I"1Oe5: (11) The \Inhhoo:l th.at • paniroul.or nnplw....... t mar "",pIoyment. (l~)

pr~doo.

other

The t;me hm;Latioo. 'm~ by lhe dienl or by the eircumS1.nr;e,.

If a fdlow al lorney is askl-d 10 It"'lif)' as an experl 00 a f<'t<, II is imperali\'e Ihm he be furnl"hed wilh tl\( nt'CI.-".';S<Iry

background ",formation to all",,' his oponoon 10 be lornlf<l ,,·,th lhese Iweh'~ m lffia '" mInd. lie may P" ma)' no! find lhat all (weke ha,.., a malenal bearing on his final opinion. but the ..... " ma~enal~ ~hould be furnished to h,m.11e should no! merely belold the number ol haul'll and (I\( pet,tionlng auoml~"~ usual hourI)' ra(~, but should ha,'(-, an opportunny 10 re"iew Ih(' en· (ire file, 10 understand lhe natur.,. dilli· culty. rt<J,'elty and ~-omplcxily of lhe

case. and 10 understand II\( relallon bel"'cen 11M-' TI'!luh obtaillt'd and both II\( issUl'!iand labor in,-oI"ed_ orlen (he allorney "exlll""' " 's trealed almost as an aflerthoughl, wil hout con~ldera(ion ell h<... <Jllhoroogh preparalion or<J hIS a1'e3 <J eJtpert~. The ",'Ofk 01 allor· 11e)'$ IS J10I lungoble. and a pt'rsonal ,njury Inalspeo:iahS( IS noll1l~nly aquahfio.dexpen ona Truth·on·l.endong case,or \'ice "ersa. Thecommoo areas ""here ft't.... arr T<'C<JH'T3b1e are com· mercial disputi'S, Truth·in·Lending, c"'II nghl8. dOftll.,>lic cases. e;tat ' .... en· "i",nmenlal and ant il",,,( actions, and cla!lll ilCtion lIugalion of all kinds. Some thought ~hould be IIh'en 10 (he exptricnet' ol (I\( "upen" in II\( type 01 case in which I\( IS 'ollf)·IIIg. no! mcreI)' as a licenlll'd pr.lClllooner. TI\( cnlena listed do not de(t-'...ml1e """ t he f~'C' 'NUIJ1d be rxpnssl.'d - i.e .. as a ((lI31 dollar amounl. an houri), rail', Of a ~ntagc fogore. While a total dollar amount ,s the most common ex· pre!SKlIl. (he Alabama Supreme Court recently aplJI"O\tod a III;".'n;entagc ligun;, In /:'11,.,'rIQII ", lI'il/i,,,".'. supra. a tax· payer dass aclion. tile COlIn affirnl<.'!l a I~...,award 10 IheaUOflJeYs lor tl\( plain· tifl class 0/ 50.\:. of the first Si",(X),OOO 01 lax rtfundl and:ilno 01 all ",Iuoo$ in exem of $!jOO,lXXl. I'er~-en(agc Ires a .... u"'-'iul m C3><'S such as Uog.'fflJII, since II\( pLllntiff class nwntlx-'rs "oold ('itch TI'CO\'erdlflrn:nl amounbof taxes. and a dollar fi!CUre 00IJ1d no! readi!)' be prorat~ otherWIse, 1'1\( COlIrt8 nlrel)' focus on each <J the I"ehe ek'menls separalely. but SOlIII;".' hlll'CIS ooghl 10 be oonsidered on ~'3Ch of tll<.~n' ( 1) The nUl ure ""d "R lu" 01 (he ",,,Ller, Nowhere i. (his brt· ler illusl mtl-d - in a nega(i\e SO'tlse Ihan in II\( 1'(,111'$1111 decision. Gi"en 11\( mlmmal \'alueollhesubject mal1er. it was (Ilaonly un..,a""""bIe to exp!nd $31,59.1oIiegal hnw 00 il. B)' (he same loken, (he IiUb!«t mal1...,. rna)' be 01 greal SOCLeIalorother''lIloot:\'en lhough <Jlhltle ~taryronceo-n. The \oogosla· (j"e history ol42 V.SOC. §19S8 points 10 II\( Conill.'5Sional fl.'CqII1ilion lhat (he "''lillie'' <J the 'U~I rnaue'!" i. no! to be denograled rt1<'rdy "bccau>i(' lhe righl~ in,'oI"t-d may be nonpecuniary in nalure." Senate Report 6. U.S. Code ~,,"jccc

'\/oyl'JS.I

Coog. and AdmIn. Kews [976. ". 59[3. WhlLe' ~ social ""<lI1h 01 alilitig;atioo to ,he rt$OIulIon 01 d,s puu's can be argued. this factor w(JUkI ra~ly ....·cigh heavily in a pronlissory notecascor the li ke. but much "'private" litigation pOS' SCII;e!I public polK")' or "private allor· nty iffiI'T3\"' aspec' s " 'hich shouLd be emphasll:ed. That ;5 "rt\la[[Y .he m· lire rationale behInd thot s ta.ulory award 01 fees in civil rlgh.s . m.-iron· mental and similar litigation . (2) The learninlf, ~kill, and labor TL"quisicc 10 Ihe prol~ r d ischa'lf<' of 'he e n.,>lo)"men l. "fh,e murts rec· OKnl:!C thaI an expel itnctd and s killed Jll"llClotioner ma)". by.he application 01 htsacquired skills. acoomplish the work mpidly. Although this denltnt sounds ,""nodest. it is important not to ietthe sktll and l'ITiciency 01 the lawyer wind up pmali~ing him because very few h(JUrt are ...... uired. Hut f'tono>l pointS 10 I~ nsk 01 bril"lglng more " ~ming" and "labor" to the task than is ·'requi. s ite" to its "proper" discharge. Dr. Ddl.1key may be hil"l.'d for surgery in whICh he [>t'rforms only .tn crucial mlnute!!oIchfooperation. but fe"ll' wouLd contmd he shouLd be ~l;"lId at the rate!! 01 a third'Yfllr ~ •. (3) The li me loonsu"'c d . This fac· tor. which once occupl("(! so prominent a role. has been ~kwIted to less and less s ignificance. Despice Linooln's famous diclum about .Iawyer·s stock ,n tndt, theHn(>haSISI)n hours aloneis both mis[llaccd and demean'ng.ll putS the work. s kill a nd j udgmen t 01 t he [lI"\>" fl!llSlO<1al on the same basis as an as· sembly line ....·orker. without rq(ard to alll106t ever)·thing that is important to the allomey's role: il SUP!)Cll!eS .hat. a s beI" ..~n t .....o dintts " 'i th identical po oUeo o>S. the one;s belter !iCfVed ..... hoIie at.OI"TII'y tal= ~r toaooompiish the client's business; it faili to distinguish bet ..... C\.... the anguIshed houl"li at mid· night during a trial going over a critical CT"OfOS-examination and the ··l"I.'View 01 file" ume so frequencly r«:OnIed; it gl'"t$ no crWellOle 10 an IlI!ipired sIlIu · tion 10 a hoprl~ SItuation ,'ersus hours proo(r<'3ding a SCI cJ. routine in· terrogatories. Nr'\letheleSl, hours a..., importam. and m:ords ~hould be r~a·

5003b1y kepi/rom IMlI><lJtlln anycasc ...·here the ' !iI;UC 01 a fl'e may ulnmatel)' becomestoo. Many cases first am\"ut an hourly rate. N'ferl"l.'d to as a "Jade. $t3r.·· then multiply it by SOllIe factor to produce the final f<.'e. &t t.g. Ct..pJJn fiqMllr. IMC. D. ;Id.,q,h Coon. Inc.. 6M F.2d 100 (5th Cir. 1982). 110\00' a steep.

" Obl';OU S/)"

hig h 1/0111"/)'

niles reflecl 10 some e"delll lite a/fo /"ll ey's professiol/al Ira;"il/g, bId s,u'Id, II lO r!! ;s tlfsfa k e fhall m ere l/o ll n •.. ,.

Il'SII night going over a clos ing argu· ment in your mind.or the ra"ago!$ 01 an um from wrestling wnh saving a chen"~ li,-e/ihood or family can be 50 r('C(lI"ded isdifr.cul! coaroswer. Although chts Irt icLe is IlOl a forum for one Ia.....· yer',"philosophy:' [ suj(gCSt that. in all but rou t inc matt ers. we do our clients. ourstlvCl! and our profession a disser· \"Ice to _k C(IIIlpmsation from a COUrl as if .....e ..-ere pieoe-.....orkm lumingoul ..... idaI"!l. Ob-,·iously. h'8h hourly races refkct to fiOITIe extmt the allomey'$ professional trai ning. but surely I1"IO)N' is at s take than mere hours - a meas· UN' which putS a premium OIl inc/fi. ~HCY. make-..... ork and delay. (<I) The prote,."io"nl experie n ce

""d re l.utation of .he allorney. I doubt if tlle-N' is much IlfICIicaJ differ· ~

brtwecn thi s liloCtor and thfo "skill and learning" faclor. but perha1'" lhere is SOllIe dist inction . Few. if any. great result s are achie\'oo I)n rept.lt 3t ion alone. and oIlen a young whose C()I18I:iousnessof h,s Inu~ leads hIm 10 .."O\"k harder and more singlemllldedly 00 a ca~ ..... il1 dou much or Il"IOrl! than many "'lions of the bar."' AI· bert Jcnncr 0( Chicago is TC[XII"ted to earn o,'er $300 per hour. Clea rly. hi~ reputation helps to juscily such a f~. but .. is a reputation budt I)n s kill. leamll" and ex~lIOIe. and lOOse factors juscif)'c he feco. not «'PUlalion alonr.

che mean, ng oIc hislacto:r " 'as found in m:ent IIl1gatiQn III which ,he plaintiffs' allorr.ey1l ~~ted a class 01 trust beneficiaries who had suffered losses from imprudent truSt in''CStments. First t!1~oo"U1 fI,;",k of MQ~/flU"'VJ. N.t!. ~. M~'li~. 425 So.2d 41 5(AIa. 1983~ T he ab6en1 class .....8$ lal"Jl'tly C(IIIlpoMci 01 ,.,ido,,:s. elderl)" people and dependent chi ldren. C~r1)·. lhe .....elghl 01 , he at· torney's responsibility ..... as greater I han III II<)IIle other .ypes 01 litigation and s hould ha"e been (a nd ..... a~) considered by che murt. Similar oonsiderations ....·0IJ1d apply whmtver. fo:rtxa mp1e. a ch,Ld', futuN' is at Slake.or a prisoner's life. etc. "The Supmne Court pointed co this ftatu ", in f'«bln~. Mi~. supra. ....·here the court noted that the", are cases which "involve the li" n and for· tunes of larger numbers 01 people and have a greater [JUblic value than other cases ..• In class action cases. a lawy.... may represent hundrerls cJ. tt.ou....nds

01 people."' (6) The mCaSu re of ~ uCCess ob. w ined. T he Supreme Court has an · notHlCfd k>udly a nd clearly that this lactOl" mUSt now assume the fiTS! posi· tion. l..ogically, 1\ should al ....·ays ha'"e brett more importa'" lhan rT\en! hours. 01" chan the ~tation of t he allOl"Tll'y. SillOle &ItCaS.S/Ol/ representation is the goal 01 all ~prcsentation any .....ay. it is the most laudabLe of n1('asurement s 01 the 1«. T he murts have heLd that the murt may make a fee a ..... ard ba!;t'd " 'hoIlyor in (>art I)n lhe murt's O"'n obsen·a.1On oI lhe condUCt oIlhe case and tl li own position as an "upert" Ilf1

legal fces. CtJ",plxll II. GmeH. 112 F.2d 1,13 (5t h Cir. 1940). Thi s applies to a number of factors. $uch as the rom ·

pnct,,_

(5) The wcil,(h l (,II he ul torney',; A p....sonal example of

re~I)()I,sibilil y .

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plexit Yor d iffICU II y 01.1 he case. and ca n be uniquely hd(lful in t"" court's as""""men I of lhe results obtainoed. ( 7) The rcasonablccxpcnscs in ·

curred. Whenevera feeis uncertainol. nn;wer)'. a n addilional clement fit""

risk is the invest ment by the allomcy d largesums of Ilisown lund» towards expert lees. deposil ions. etc. A Iawycr who must advaroce $10.000 or $50.000 (as may easily OC<:\IT in rn«.Icrn pr0ducts. securilies. medical ncgligt.'fICe Of class act ion cases) should receive con· s ideralion fOf" l hal risk. In 1913. in a .,roduocts case agains t General MotOl""!i. t"" plaint iffs' allomeys advancn:l over$50.000; in 1981. in a will contesl. the ex penses wer-e $10.000; in 1962. in a classact ion with l.200 class members. t"" costs were $35.000 el(Clusive oI.lhe rnsI 01. notice 10 the class; in 1983. in a defect ive drug case. lhe expcflSCS 3p(Iro3Ched $1 00.000. The allomey who ta kes s och risks. and ~, should begiven wm parali vecredit by the 100SClting jlldge. (8) Whelher a lee i~ lin..! orcon tingent. This cat<1lOf)' is somewhat putzling. siroce a "","ilion to a court for allowance 0( a lee a lmosl prcsuppo!!eS sorrw. conlinger>ey. It would be rare. in· deed. for a leetl) beawarded unless the attorney represenled the prcvai lingside. making lhe conlinger>ey 01. w inning a cenlral consideralion. l lowever-. il is clear that lhe risk d obtaining ~o fee is an in'(lOMant consideralion 101" the coorts: "Allomeys who take cases on conlinger>ey. thus deferring payment oflhcir Ices untillhe case has ended. and taking upon themseh'es the risk that they will r""';ve no payment al all. generally receive far lTIClTe in winning

cases than they woold if they charged an hourly rate:' IftllSley v. Eclrerharl. 1(0 U.S. at 1~1. (9) The ...,ture and le n gth of a l.r o fe J<J< ion ai relalion s h ip. Tile courts use this factO!" rardy. and it is ger>Cfally inteT]lreted II) mean that an allomey is justified in expecting a hixher fccfrorn a """timedient ve!"Sus one w hose business is regu lar and cao be coonto:! on for repeat employment. ( 10) 'The (.,.,customarily charged in the localit y fOT s imilar legal sc r _ vice!!. This factor- embodies the dan· gerous roncept d the "locality" role. and neWs to becarclullydcah with. Is il the "locality" oithe lawyer's prac. tice. or the "localily" of the client. or the "locality" of thecoort? A Birming· ha m a llomey customarily charging $100 peT hour should not be penalized because a dient from a loca1ewhen:$60 is customary choo;es the Birmingham lawyer's services. T heexperience. s kill and reputation of the Birmingham lawyer- which merit his hourly rates may well be lhe vcry Ihings which draw l he dient to employ him. Nor is Ilis overhead less because the case is heard in Camdenor ChalOm. Thedem · ise of "minimum fee" schedules, and the ruling in Gold/arb v. Va. Stale Bar. 421 U.S. S.Ct .2004. 44 L.Ed2d 572 (1915) woold be a caution against too rigid a usc of "customary" fee;.

m.95

(1 1) The likelihood Iha l a paT' tie ula re mploym e nt m ay ,.reclu de olllcT emplo y ment . Tile surface meaning of thiscriterion is merely that of doing work for client A instead 01. client B. Unlessan allorncy were other· wise unemployed. there Wl>UId be very

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lill ie substance to this yardstick. The more im(lOMan! meaning relates to the "desirability" of the ,.'ork - Ihal is. will il cause others not to employ the allorncy? An example from the case law is thaI of an allorney who sued a policeofficcr. and was thereby unlikely to be hired by other officers. The same cou ld be said of suing any large c0rporation. bank, institution or profession (such as doctors) - the allorney may well find thaI he is precluded from being Ilired by those who arc associated with lhe opposing porty. ( 12) T h e lin'" Ii'm il a t ions "" _ posed b y tile cli e n t or the c ircum· S lance ~, If the case requires immediale attention. emergency procedures. dropping other work. etc .. then the fee should retlectthose demands. The "lesson: ' if you will . is merely tllat. where a\lorney's fees are a iiI, ig;tled issue. the same care. (ll"eparation. and analysis should be brougllt 10 bear as on other crucial factual issues. While we should not devote mo"'care to fees than to the client's business. we need todo more than perhaps hascus· tomarily been done in Alabama. There are many cases where lhe issue was men::ly submilled to the court without any testimony, and others where the submission was only by affidavit. The court is no more bound by a fceexpert than by any other. but il s hould be given a full and thoughlful presenta· tioo tosupport a fair finding. This may includedlcring not only or-altestimony. but all oI.the non-privileged lile. deposi· tions. correspondenoe. lime slips,ctc, A record wllich is inadequale under Peebles ~. M;Iey./oItllSl)~ v. Ga. IIWy. Ex· PJ't;S.S or IItns/ry v. Eckerharl may no longer stand scrutiny. 0

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C. Ward lions 01 judg.?$. ~wy\'rI, their wives, Irier-.cb, p..\rlllcr., ''''''lives and children, His father, the ~ Judge WOods. hid IN<m died 1he,e nearty row years "'.JO. And so much had COII'Ie.to pass in the "",,,,,hnl(>, Sonce the ddo.r Judgo Wpodo had paSIJIO.'don, the ~ Judge WoOds too been appointM by the governor 10 replaCe him ar.:lIO fullillhe r;.,." ".,..,..Idt on hl5 51K year tenn. I-tis appointmenl ""'" "'""'" !"Oe"3t1\l up III10d on top 01 ""'!!'Y' thing else he had !hi! pressures 01 !hi! upeoming cle<:tion to tlWlk 01. How arne fl~ he thOughl. !\>e..st"';;" showing ,n the ~pending lurrowso(his lorehe3<1.

The judge rock«! back in the old oak porch picked up the doth which Iwl b«n lying besiOe him and

,wing.

ca!IU...., I\"lOPPCd II¥! peupir<ltion that had coleo:.ted on h.. i<ioehead. Bbs,td hoi WOOIMr, he I~I. It on'y mol<es ~ 1A.'OrW. F'lII9R'rirog his dark Ir........! glasses he looked 0\11 ll>rough II", while slats and the KTOOfl that encb6ed hos bad< porch and took in the view oilOO hills behind the house f,Bed with pUle tTees 01 all kinds. as well as popWs,o.lks, _gum aoo cedar ,re<!$. The """'1I"""ns wetI' darker tha" 1N:y had be<!n a few short months earlier nnd the othe. trees Iwl beg"n Soo""'">9 the flaming colors of the COIllUlS

autumn.

He rem<!mhered with the realizahonol cree1'ing middle age t he da~'S 01 his youth ",110m he had carelessly ...... and ... red through the woods bdOffl him now. He had know!> them hilI' he k"""",he We k 01 hos!>and. And wo>II he shouId~ ,hey wet.,

8\ ho$ blood The white frame Iv.o-~Iory house thai he "''lIS 51UII'9 In Will' on I he edg;> oilr.:.w woodo and ........ the same one he Iwl oo..n born in th"ty·five years;,goand t.... one his lathe. had been born in before (hill. TheoJd house had hekllWQ genera-

..... '"

,hw<h

BiI <>nd thllatniloJ .......... <>nd BiI had 9J'I!If. IhrO\.l!ll lhe ~ IooImg br .... dad W>I~'" o;amI! upon him an It.. fIoo< in Iucchm. He was dead.hisold ho:>lr1 firIj!III '" I

"!',.;.

i The 9""'!'nor lli>d .."""""ed"Bil 10 ' ...... h.. dIId', pIaoce:,within thr...,...eeI<sol the lulWr.... B;II hadt..-.JRed the old t.ome place _ tho: orJv chid arid ~ ~in .... hin 1.....0 moolhs,JUSt Ii\..; he had <ilcU5lied ¥th his dad 110 """'Y times before. Pow ~ 1-IDdt,bf.m thai bng?He

Cil;utll.

I~~d \heCOONSIeeI tlial ~ ~ and !hi! "",.,,~ Mifs he lhio

-.roadinll around ..

90""19. his than they

slower than they had been when he was ,ust a spry young country judge. He also had known _ ~nd had conlked to V€Ty lew _ I!\!II the arlhritis in his shoulder!

~U>N"'f' and dfrk /&r

&/ C,'"jl Appro/$

d, ...... moslly $implo. time p.:>S$<'d aoo the cases he drew b«;u tougher. JUSl lheloclo: ~ lhe draw. The tIIopoi flesh on fleSh wJ.s shaJp as he "ruck lhe ffIOSQUIIO ho: saw perched atop his left iofeannjusl aboutoosink it:!I hungoy i\tle flftdlelnlO hi; skin. ~.xI in the.eanyevenmgskyw:dh IwiIioJ>l 11 Vooo1 'une auJ"I! he saw a hawk CIrclIng above wOOl he knew to be lhe held he and l"IIs dad had shot doves together '" so ITIiIny 11""", before. TIl<! ~un wM low..riTl9 ,ts 9i'U behind toc (wes on tllC hill,USI 10 llis k>f! and he

s.,wwhit~ '!WI' 01 hght .It. they rul p..>rl 01 8"kI Rock I.... """'" giwn to the m<)f~ .,!.>rgo> hill. ",..u~, - ru· '''''Ily. whoCUlS the I.....", 00 the """'em !>Ide oIt .... hoIItolwdi.kc, "" lhough lhey !wi ~,>.>iy ('S<.~po!(I from t.... SUn and t .... .....:>t I'd bk~ to I'St·ape f'om .'iOffJ(' of the nrol m~'...'I'f•.... lhougtl1 "" .... hoa.d the JlO"h "",'k.:>t il.lQi",s. SI lenlly ,eilCho.'Ii to ,he s,ooI on h .. MI. Itft,'Ii hi. sI.~~ of .. ~ IN. movOO ,.... SP'1g 01 rnml OUI 01 his w.'Y. "nd took a Ions SIp It w... cool on hIS hps ,md lell w:ry good ~s II 11,"'.-<111110 his ston"",,,h. Ht> """nt~d IO<>S<:,'i>C lhe he~, dU right But oot Ihc ph)'5icdf t...at; t... coukl <1$' caP<' t.... , by 9O'ns "",ode uncle, It... cen· 1r..J a" conmhO'uns ,ru, hdd been in <'ISh1 "9". No. hoc ""dmed '0 boo ou, 01 lhe he.ll Q( lhe Roose....~1 n>ur<kor ,rr.>J. II ".,,. t .... first mur<kor ,,\ill m o..k ~ Counly Ir\ 1""""y f".. yc,'" III ",·hich the dislncl ~t lomcy had ,~ked for t.... dealh prnahy, In I<><:t. there h.td I>e<.~' roo C,ls« Ilke this 01'" sil)c~ hI> lillh.. ,. h.td w.", " neuly electoo ClfCU1lJU~ in" one·Judge on,,· cuunty ~ "cur l ,,,,d h,1d hc<>.d , .... now ramou. $m"h ",,,I No ct...",,,e for d.Jd 1<> 9<'1 OUt oIth.'t c"S<·. th,mk you. He hdd to Idke wl",tC\-"r '~n'" <>10<'9 The younS", JOOge Woods had nol wdnled to hN. lhis case. At illI, But .... ~ hdd 10 t.>I<(' t"'" lurk 011 .... draw ;u<:k" """ lhe ~ppropn."e lerm, 8/asl The "-ord ....'<l, d"..,- "9<'inSl ,he sbssy Ailmce dround tum Ho> >ilt hl:.tc~ b..ck OOu.n. pus.h<od tum· ",H mto " mor<' Cornlorldble pO>/IIOfl. .. nd clo5ed his "Y'-'S remen>benng. He h.td ,troug/y hoped t... coukl S"t out 01 tryu'9 thi~ ~"", ,lIId tflcd 10 lind ~ co"Oo<t 10 !u,lily r~'Cu",,1. The vil;tim wdS Cn..rl~y Joh"""". dn ~""able house p<,int~r ",ho did " lot of wo.k d.OUnd t .... county wl",n 1I(:(ould be lound sobel Bul I", "',,, ~ good ~'lOU9h fel\ov.' dnd 6n ex~e1l.·I1t .....""k", Only Judg<, W"""" hdd h.td W'V btl'" '''''Idel ....,Ih t .... man <11><1 ~OUId IU1d no con/bc! 01 m'CfCSI And lhoc.~ ....'''e II><! ~ perpeI.d tors, A1btn to'<' Jenk",. dl><l Tony F.dnklm Roo...,,~It. Ju,t t"",drilters who h.>d txodr d II", lak>s of JJIOney ,tufftod rnlO 1.... mattres>es of old N<>di"" Peabody'. 000"" "nd decided 10 investi 9-'1'" lhem for them..,lves. Only tllCY h.,d not c~kulated on on~

Congratulations

IYIO<U""'' .

'''''ns ....

.,.oIIed

Short Story Contest Winners First Place:

MI. Walter G. Ward "The Decision" featured in this issue

Runner·up;

Judge Robert L Hodges "AnlKlbelle's Dilemma"' To be published in the November issue

Thank you 10 all of IDose participdting in 171.., A)"lMm.. Lawyer Short Story COOl~ Othe< ~,..;II be published in lutu,e """JeIlor you. ~mef1t.

11"'"'

dPOC""*"'\

1tuns' old Ch...1ey "'oLS ....-orking there and ....,hl~, hi> """",!>()OC~ he ""<>S up ....'Ih II><! chid'",,,..oo ;,t "uk C~fly. He h.>d in· d.,,,,d gone 10 work ea,ly the morning .... "',... mu,tk.ro 1e,\\lIns 1TI hi~ old p.,llnt ,poll<'(1 Chc\lfolet pickup about 6;30 dlte' k~w'!l hI> "if,· 90Qdbye for

w"'"

whal w,... 10 bto the 1,.,;1 t"n" eve •. But Jud<J<' Woods W "evcr W de~I,,'9> ""th

~I1Y

the.e lwocrl""" S<> .... could root com~ up ..... ,th " confl,cl. He couldn't get out 01 ~"'rns lito.> c_ The luck oIthe- d ••,..... h..>d lallen on tum JI (\'It mort· lit.. bghlning. B/a,,' "" ,..id "9<"n, llu; 1lJ11<! aceoml 'ns II ""h d ptlllt"h Q( h", fisl mto the dnn rC!oI of lhe ''''ns .... "h enough 10«.. 10 mt''1"r"Upt lhe ~",ng'~ ",,11"''' ~nd SC.ill>" """'" ,;k", ofl tu; ,rUddJ<O knu<:kle. lhe!-e ....' .... a sn",n, sn...p "',,,, tMt I><! bdrely lelt He ..... ~s!Jl<Ld If>." V" ginid dnd t .... kids h.td 9011" ~w"Y 10'" lew &IIS, Acludlly, tflcy h.wl oc'<'n ",'Ill ,r ..... ,'v ~ItN the Judge h.,d SUtl~" more t .... n his usll<ll numb... oj d"'l'y phone cdlls ,md IeI1~rs 6boul "'....1 would 1'1.'1''''''' to h,mor his fdrnily il .... tI.",>d s<1 Roos....~t gr.'" hin> ofe rn pnoon ,~,,'.uI 01 It... dedth I>"""h~' contkmn hnn to tho.>~r..'C t "" c ....". To b<o on the ,..,fe ...de .... h..d senl lhem ""'J~' f<>< It... hM.ll,.,,,, on h.. Me, lelling lhe ki IUSI aboul 10 bewn 10 d,,'e on ils prey rn thl: fields below. T1w WmP<'rdlu,e had begun drop. 1''''9 dnd he wul<lldl dldt II .cally wooid

f,,,,,

boo dulun>n boofOJ .. 1ons by 1he bn 01 a chill In t .... aI. Mi 1"'" sun ht.'9"I' '0 sel "nd by tho< begmn'ngs 01 goose bumps on his "rrTIS

The IruI of ROOSCV('lt had beo>n diffICult hom II". outset He ilnd Jenkins had holh oc'<.'n ch."ged with firsl Mg"'" murder but due to LICk 01wrt,IeSS<'S and s<X><! dMC I cv;.k,nce It .....<os t roc opinIOn of tho.> DA's oIf"'e tn.., t.... y """",Id boo.....,11 ..dIi......t 10 <>sk lor ble rmprison""'n!. But Jenkins had finally tun1<!d stale's ev.de'ICe ~,JC! told tt... 5Iorvln aD 0/ rlS !lOry det"d. lie ",>lofied If>.,1 he WMlt'li 10 Slop R""""",,,," but trut he w"s ~I.~od <>fthe much bW.

""'"AI I.... 1.0;1 minute " neighbor Cdn><! forv.;drd "nd ~dmrltcd Ih." "" h.-.d oe£n I",,, m.m I", odcI1r.flt'd ~~ Roosewl1 dnd Jenkill~ runtl<lIg f.om t .... Peilbody OOos« "It", he, .. ,ns;.c 'C,,!T\S from 1M Idirecl ion TIl<' Ic~t I Jl)()l"" 01 lhe~{)for.er "'as IMt Joh".."n h.td b..-cn slab!1<!d betwe.m t"'''''t~·....d th"ly """"" lhe Slabs "",'e SO ,un tos", .... , 11'1.11 .... could not b..ee""," 01 lhe ~>WCI numb... The po; IU.c> oil ho.> munL" cd body <>nd t ....

bIood·s",med

w..us """'e ...;imine(!

<'I.'Idencc and """"'n to the JUry, many of whom could St"nd 10 lilke no more tlldn a qUICk look. Two of I.... women .... d OC'9Ull ,.oobrng so/Ily. The thfO!{! blo>clt ju.ors had ,uioplOO ~ drs IntO

look whom they saw the pictures. In shorl. It took the jUf}' less than one hoor to decide on ~11"s guilt and less than allother hour to vote II I to gill<! him the dealh 1>"""lt~'. The otle vole "9"i""t wM from d young woffi1ln who ""id lat.,.,. thai she o~d the dealh pelldlty unless there was more and bet I.,.,. evidellCe . Much of the hoW" was a wasted at l"""pt to convince her to change her mind. Now it was up to him, He nad to decide whether 10 follow lhe jury's recOmmen· dation or to 1>1' letlienl and give Rooso::wll life without Pdroic It was 1Iil up 10 him. Only him. TIl<! s«ntcncing hearing had turned up lillie that ....'''" help/ullor ROOSIM!it Hc had been abandoned by h,s parents when he was Vl'!f}' young and had been rdised by his m>.1ema! grandmother. He had been in and oul 01 relOfm school and later the county jail for all of his lik!, The judge had found that there ~re two "9!Irdvdtins c;<cumSldnces lhat the killing was avoidable and that it was don(! during the commission of a crime and no real miti90ting circumstances. So now tnc judge had to sentence him fOf what he had done to old Charley Johnson. The jUf}' had recommended the death penalty. The heat was on~ and It v..as on him. As illo punctuale the thought he fell the moisture under both drmpitS and a lric:kle down hi. sideburns The illCreas ir.g coolness around him told him that his perspiration s,,"rol was the term he a.:1~1Jy prelern-d v,,," from internal and not extemal oources, A bree?.e swayed lhe rose hushes in Iront of lhe p::n-ch. Those roses had been his I"the,'s pride andjoy. winn ir>g g;orden cI ub and county fair a ....'ards lor as long lIS Bill could remember, BlJI Bill had oot shared thIS intcrest wilh his dad and in tl", Interval tnc neglecl h<td ca~d the bushes to lose much of looi, lustre, At thIS hme 01 year they had kmg since lost lheir !lowers and were now ne",ly lnerl. jusl waIting for lhe cold winl'" to enve· lop thorn. Dearh. Tr.e word. even lhough it had sou rKIed only in his mind, cMried ....;Ih il a g,,,at t01'" ollormality. You could giVl'! much back 10 "man, II .. Ihief stole M could "",k" rc&tilution; if sornecme in jures soll"K'One ers.. he could be made to pay; il you conv'ct~d the WfOr>g person gust~d

T.... A"", ... I"",,,

you could give him back whatewt was lelt of his iife. But a lile could never be restored. Ever. WilD! abour Clklrley Johnson', life? he thought. This pef50Il had taken it without reason, with premedtl~lion. and in lhe face of p"as for mercy. Tr.e words had run true whe" they were spoken by RB. WaUs. the OAwho had proseculed rhe case. Give him the death poena.lty. he had thundor..d 10 the jury. Of ..... should let him SO free. TN. murder had bee" violent, But Roosewlt had nOt been am!Sled in two yearsand had seemed 10 be doing belle, But no one reaUy doubled he murdered O",rIey Johnson. I belieue he d;d ir roo. the judge said aloud. Bul what good would sMng hIm the death p"lldlty really do? Woukl it deler other.?Some $.Jid it """,kl; others that il would not. Bul the elder Judge Woods had called all of thai much ado aboul oothing. Sometimes wejUSt need juslice. he had $.Jid, $(Ithe oommunity can get a feeling 01 relUlf. Bul the final ity of the thir>g bothered him st iU. WhD! if "'" ore wrong. """" rhouyh II IS highly unlikely. he asked him s.elf. Hard and last Cas<lS had been blown open by the d,scovery 01 new .... lIenee, But lhat was rare. the exception to the rule. So now il was up to him, Tr.e spotlighl was on~ and he felt the pressu,e. The press ~ been drOpping by to gel his COmml?t\ts and hE had eVlm seen hnnself on the so x o'c1ock news, His name had appeared in tOO headlines:"JL>dge Woods to S,mtence Convicted Murderer Next Week: and "'o...atn Or fjle TIl<! Only Rerruining Issue: forget Ihe headlines and tM upeom ing el~lion. The judge just wanted to do the right thing. VJhaI aboutlhe biblical idea 01 an eye for an eye? ~ Old Tcslolll<'m. he lhought, and hodn'l the New Testa",em &.>en all jorgll,,,mess? Bul as his I~thef had said: biblical forgiveness can come from 100 iOOividual or from society or from God, The IaSI kind you "'lk di· rectly for, the second kind should always be given and lhe first kind couk! be given WIthout lakn's SOCUlly'S duty to punISh away. Society had 10 defend itselL Who, WOtJId he he "",re he,e?tw asked alaud, Whol would dad """"

abo",

do"

His mind ",<)nt \lack to when Bill was jusl lonle Billy. ~9" 8. ~1"Id Judge Woods was just "d~d." It was ~n early ~pnngd;oy and they had beI'I1 011 a turkey hunl . just the IWO of them. Dad had armed himself ","h his favorite 12 gauge double b.>rrcl 3nd hlile Billy had carried his 20 gauge pump. They W<'re In 3 blind r\l!ar the he6rt of the woods for little Billy's fi1"St real tu~ hunt ever and dad had been callir>g lor ~bout f!Vl! minUles in lhe early momi"!l darkness when an old gobble, ansv.""ed. Belore kmg Billy could see 111£ brush about 125 yards aW3Y hegln 10 mow. flushed with e ~ cilemenl because he had been promtsed first shot, he began r<lis· ing his gun 10 ",m at the bush. Dad's hand had corne down quickly onto the lOp 01 lhe barrel. "Don 't aim at anything unless you can see what you',e aiming ~t and intend 10 kill it." he admonished. BiUy lowered the barrel and """I..d. alraid the gobble!" had heard his dad. The le~rs "'' ' 01 withool justificatlotl and in a few minutes tn.. old gobbler dppedred in tn.. open. Billy raised his gun to fire, his stomach suddenly in his Ihroat and his heart abo", to expklde. As he was readvir>g hImself 10 squ~eze the trigger M noticed somelhir>g funny Jboutlhe bird. II was crippled. Its IeIt foot W"'l badly m.lngied and ils right sid<l,...1>5 IOfn and scarred, lhe only visible r""",,1lS of a fosht of an earlier season, Billyfelt pity for the bird. Bur should he still shoot it' In ils condil ion il couldn'l fly and would probably be kil1ed before Ior>g anyv."'y, But wI"'l had his dad told him ..bout tile and ils cycles~ about the balance 01 mercy and harshness in the wild, The decision was his alone and he kn""" that M dt<! nol have Itme 10 cOllSull anYOr\l! He had lothink quickly and ""t decisively. The man in the porch swingsmiied. 00 longer li llie Billy. bul Judge Woods. And he k,,,,,,,, tnat no one, 001 even his dad cauk! make up his mind for him. The ,ays oIlhe sun could now only be seen in Ihe h'shest part of Ihe sky. Venus wilS dearly visible lUst aoo....: the amber horilOn. No h,,,,,?.e slirred now bUI " was cool 011 the porch. judge lell ~ se""" of r"I,,~se. Now he knew wn.., it was he had to do. He slood UP. look a deep brealh ... 00 walked into the house. The night would p.lSS better now 0

n,,,

Iocaled al 972 Cent",llIank Building.

P.o. Sox 2008.lfunts~ille. Alabama

~bout Members ~mongFirms

351!04. Phone 533-1421. The firm IS al .... pleased to announce the associattOn a Barbara S. Corner as assOcillte and of \)Qn " ld W. O,,,,is as counsel. Am)" M . Wilkin!'Of"l is pleaSfd 10 annoura the opc'ml\fl: a her arlCe fortn. general pncIa a law at 2925 Montgomery llighway. I'.O. &>x Pelham. Alabama 3512-t.

About Membe rs &rbara A. Hand le)'.:o 1983 ad · miufIe 10th!. Alabama Siale Bar. has joined the legal dcpan~t at BE&K. I!>C. Miss Handley was employtJd at IIE& K in 1972 as an administ rative assistant and the COInPl\oy's first em· ~.

Sinoe then BE&K has grown

10 becoo'ioe Ollt 01 the nation's 1a'#Sl

rnginteringand oonstfUClion firms.

Richard C Bentle),. formerl y 01

Montgomery. is pr;I(l idng law in Abi · Icooc, Texas with llanna. Bentley & Hanna, 302 Chestnut Sl~, P.O. Ilox 3819, Abi~. Texas 79604. ~ (915)613-3792.

Edwa rd S. S It.'<Ii/C Il l. a the Mobile law firm a lIane!. Amvbll. Bed· sole. Greaves & ./OOnslon, has been .ppoimed as Abbil.~ State Cllair· man a the Defense Research Institute foc the 1984-85 term a alia:. lI areld 1'. Il erring. a the Il unts ~ille law firm a Lanier. Shaver & lIerring. has bet-n reappointed 15 Abba ...... Nonh· ern Area Slate Chairman for- the 1984-85 term. Robert II . S mith. a the Mobile bw firm d Collins. G~11o wa y & Sm ith. was Tl'3ppointed as Alabama Southern Area State Chairman loc the Defense Research [nstit ute foc the 19&1-85 term a

afa.

Among Firms Aiel< T . Howard . a Mobile anor· ney, has been appOintoo an I SIIOCiale editorol American Maritime Cases. which is a coIl«tion 01 a ll published decisions by OJUrts in the feder.!.] and all-Ie mum mlhe Unittd States 1""1 in..ave mailers 01 interest to tile ad· miralty bar.

Brewton attorncy Jim Il an was eIoclM the 39t h lftSiderU 01 the 16.000 member Alabama Canlemen's Association during the association's .nnl.l31 meeting in Febn.lary. l!.art presently serves as lhechairman 01 the Alabama Bar Association's public

M a T" in II . Cam l.bc ll , formerly a member a the Birmingham firm of I\erkQwitz, l..efkovits, l'3tric;k, loom. Edwards & Kushner. has fM'11lly opened law arlCl:l!l in Montgomery at 322 AbballQ SII"ftl, MontgOmery, Alabama 36103.

Cart ledge W. IlIne k wc ll . Jr .. and J . I'nrke Kci th art pleased to an· nounce the focmalion a a ]lOiIr1nersllip for the practicea law under the firm .... me Blac kwell &: Keit h . The firm is located at 6]9 Alabama A'·mue. P.O. Box 592. Selma. Alabama 3670I.I'hone 812-6272. Ikll. Richardson &: ]f e rrington .

c.e. Torbert . Jr" has been named the 1983 rtcipien\ oillie Distinguished Service Award by the (}pt:lika Jaycees.

Ju~l ice

oJ. a partnership lor the practiceu law under the firm ruune u Haw ki ns & Da y. Officts arc located at 826 Chestnut Stl'('('t. Gadsden. Ala· bama 35901.l'hune 543-7200. John T _i'llOOI"el>milh. having withdrawn as a s/lardloldef" a lhe Mobile law firm oJ. Brown, Hudgens. Richardsoo. Whitfield & Gillian. P.C .• announces that he has opened an or· fioP: for the general pr.ICta of law under the firm nalneu John T. i'II .......".mith. Officu are at the La· Cle!Ie Hotel. Suite Dl I·A. \50GovI.'I'1lmenl Stl"ftl. Mobile. Alabama 36602. Phone 432·1261.

Lewis II . Il an", c r . I'.A .• an· nounces lhe relocation u ils urlOeS 10 202 East Main Slf\'Ie\. Roanoke. Ala·

bama. Phonef!63.21!l>. Donald lee lI em" announces the OJlCning 01 his u fa foc the pri~ale praclkeof law at 55 Central Bank 1lui lding. P.O. Sox 875. Huntsville. Alabama 35IlO4. I'llone 5J3.1724.

relation s committee. Alabama SuJlf'ffllt Court Chief

George C. liawkins and GeQI"i/C

c. Da y. Jr.• announce the formalioo

I'A .. and Spark man & S hepard . I'A ., art pleased to announce the merger a their law pncIm as Be ll , Rich a rdson , Hem ngton , SI).,\rk . "'nn & S hCINlrd , I'.A. Offices are

lIand , Are ndall . Ik dsolc. Greaves & J o hn s ton. 30th Floor· First National Bank Building. Mobile. Alabama. take!; pleasure in announcing thai Orrin K. Amc" III has beo:me "-"'IOCialed with the firm.

The firm U Barne ll , Btlgg & u,.e ;, pleased \0 announce that John B. Barnell III has become a member 01

the firm. Offices are Iocaled in the Monn::o! County Ban k Building. Suile 200, Monroeville. Alabama. Phone 743-3386 or 743-3387. Ja",cs Robert Bel,ird , Sle " en A . Tho",as and \villia", K. Uiggins. Jr .. are pleased to announce the formation of a partnership for the general pract~ of law un<kr the firm name of Beaird. T ho mas & lI ig· gins . Offices are localed at 102 Bank· head B)'ars Building. 1816 Third A'·cnue.Jasper. Alabama 35S01 and Blanton Annex Second Floor. Jasper. Alabama 35501. Phone 387-0332 or

387·1447. Bruce A. Burllram and Hugh Co Hendcrson are pleased to announce the lorn.ation of a Jl"nrn;:rship for the general pract~ of law. T he firm. Hunlram and Ue nrle NQn . is located at Suite 101. Lindley Building . Birmingham, Alabama 35234. Thc firm of Gaillard. Lillie . lIumc & Su lliva " is pleased to an· OQUnce the relocation of their offices to the 10th Floor. Merchants National Bank Building. l'Ilobile, Alabama. George F. May nard, N. Lee CooI>c r , Mel,de Fri erson III. Fournier J . Gale Ill. Douglas T . Arendall . Kirby Sev ie r , GeQrge G. Lynn, J . IIQlJ.s<Jn Presle y, J r .. Calh y S. W ri gh t, II. T ho",a!l Well s. J r .. and John D. Joh ns. formerly Jl3nners in Cabaniss.John· ston. Gardner. Dumas & O·Neal. an · OQUllCe the formation of a pmf=iona corporation for the prnctice of law under the narne Maynard, CooI)Cr . Frierson & Gale, P.C. Offices are located at Twdfth Floor. Watts Build· ing. Birmingham . Alabama 35203. Phone 2'".>2·2889.

\V.L. Longs ho.-e, Jr., takes plea· sure in anOQUncing that his SQIl. \V.L. Longs ho re III. has joined him in the general practice of law under the finn name of Longs hore & Longs hore . Offices arc located at 423 Frank Nelson Building. Bir·

mingham. Alabama 35203. Phone

252·7661.

l..owy<n

p.O. _

l>doca,;o.w P .... 1m

UoI"";". Alaboo») ~

Roberl G. !-Iobi""n takes pleasure in announcing the location of his office in Southeasl Alabama located in Newton. Alabama. P.O. Box 86. 36352. I'hooe 299-3521.

Brown. Hudgens , Richardson. Whitfield & Gi llion, P.C., takes pleasure in announcing that Caro· line E. W e lls, formerly a member of Gallal<lC. Denniston & Chemiak. has ~ associated with the firm. Of· fices are located at Executi"e I'lalo3. Second Floor. 601 Bel Air Boulevard. Mobile. Alabama. Da v id P. Broom e and Edward 13. Mc Donough. Jr .• annwnce the format ion of a Jl"nnership for the pract~ of law under the firm name ~1cDonous:h & B roome. Offices are at 1400 First National Bank Build· ing.P.O. Box 19--13. Mobile. Alabama 36633. Phone 432·3296. 0

, ,._ ......... S24.'1' plus SUO for POSlag"

Imagine, You're about to erect a spectacular new office tower. There 's just one small hitch, The si t e for the monument a l new office building see med perfect. EKce pt for one thing. The company preferred not to have a train running throul/h the lobby. But a ra ilroad helll a right of way across the property. and traIn tracks were scattered over part of an otherwise pictureSque sce ne. A number of other problems threatened to sha t ter everything. They dl dn·t. Because Commonw ealth worked w ith counsel a nd representatIves f rom t he railroad. t he city a nd the _ company to keep things on the track . 50 the build ing-instead of t he 5 o 'cloc k e xpress-arrive d right on schedu le. Whether your project is an office building tha l's s t retching s kywa rd. or a single·family home that's .s lttlng pretty. call Commonwealth. Our service rea lly can make a difference . -

We turn obstacles Into opportunities.

Iii iii COH~THlAND' mu COHrANY

......" ' - - ' 164 St. Franc is Street. P.O. Box 2265 , N9.JlANC(

Mobile. AL 36652 • (205) 4 33·2534

GJUding the Circuits

Cal houn-Cleburne County Bar Association Officers of the Calhoun-Cleburne County Bar Association for the 1984 year are as follows: V~

President : John Norton presiden\' Joe Estep Secretary:

Vaughn Stewart

T reasurCr.

Brenda Stroham

Other positions include Kirk Da,-enplrt as ,hairman of Law Week. andloe Estepas chairman of the law l.ibrary Committee. The Execuli"e Commillee is composed of Ri路 chard Ca ler. Tom Dick. Bill Jackson. Jim Main and John Phill ip!;.

Mobi le Bar Associa tion At the rt'gUlar monthly rneElingon March 19. 1984. the Mobile Bar Associat ion applauded three men who ha"e given a lotal of ISO I'cars of coonsel to therommunity - to Quote the AlIliM Cily Ne .., & Ret';.,,-,. "ISO years of lawyer路

Pictured are Mobile llar ,\ s o;ocia';un Pre , ide"l G. Salle L)'o ns a nd Fill y Vear hOl1o<ccs C.AJ _J ohnS" 'nc.J r .. Wi,,路 s ton F. Groom. a ndJ . Edward Thornton. I'holo counuy or Th~ , lwl"" City N~ N" &, HPI';PN路.

ing." Certificate.; in re<Xlgnition of ~nd aPP!"-'Ciation for fifty yean; of service to the public. bench and bar of Mobile County were presented to Winston F. Groom. CAL John-

stone, Jr., and 1. F.dw3rd Thornton. G. Sage Lyons. prt.'Si· dell! of the local ba r. made the presentation. These gent lemen shaR"<l this ooc3sion surrounded by family. close friends alld associates. Up:)I1 accepting his award, Mr. Thornton . claiming to have lost his VOIce and with tongue in cheek, said he owed it all to "good clean living alld minding my own busine$."

Judge Pelham J. Merrill

Mont gome r y Count y Ba r Associa tion

followin~ Ih" al>fK'inlmenl of forn,,,, GO"crnor J ohn I'al· Ie<"'m 10 I he Court o f Crimi",,1 ' \ l>l><'a1s . a t,oblic i1"'esti· lure " "rem.... y W H S held in Ih<: S UI"'''O'<: Courl Iluilding " nd o \""el)' . ceq>!iun h.... led b l ' the M" nlgon.e r )· Counl )' Ba. ,h..,.,imi"n. Pictur ed n' I hc ,\"ril 9 ",'e n ' arc ( t.. 10 R) Bill I lni.,..on. l>resid"n' of .h" Ala bama S' 3' e Unr; J "d~c Pallc ,"""n, and lI " nr)" Cha"I",II, ",e. ide ,,1 of Ihe Munt g"me r y Counly llar As """i31i"n.

NEW! IIAJOR IIEDICAlllSURAICE MADE AVlollAltlf TO IoIEIoIIIEfIS

" STATE BAR THE ALABAMA • $1 Mitllon Limit • $1000 Stop-Loss • No Coordination of Benefits

• Optional Maternity COMPARE THESE OUTSTAN DING BENEFITS AN D FAVORABLE RATES CONTACT:

Ma n y frie nd s "nd ",;soci"lc~ a" " nded Ihe im'cst il ure " nd conJ(rau ,\a tcd Judge \',011""",,,,,n his a"poin lment ' 0 the ocn ch. " ' hic h h e s lat " d is "a c ulminalion of II life's ambi · lion." li e ...,.id that L>cing a llorn<' )' lIe """,1 and gm"crnor o f ,\ 11I1.o"mll was a side·lrack 10 hi s dre am " f bei"g 3 lawy er anti a judge .

INSURANCE SPECIALISTS, INC. 1716CITY FEOEFW.. SUIL(llNG

BIRMINGHAM. Al.A8AMA 3520:! f'IIoneTOI- F... : '«IOt2. '·7~

Third Judic ia l Circ ui l B.lr As socia t ion

On Fnday. Apri16. 1984. $Iudentll al lhe Eufaula lI'ih School

~njoyed

a !earning upe,;tra of a

diff~m

kind.

Through effons initiated by lhe ThirdJudicial Circuil Bar As.sooatl(ll1 (compriSO'd of Barbour and Bullock coomics). lhe Supreme Cour! of AI~bama ~I in special session before somt 1.500 st udentS in the high schooll/Ymnasium, J>re.

vious 10 lhe COOr! session. studenls and teachers h;od become familiar ,,-.Ih lilt background of lilt j\O'ocasa (one civi l and one crim.nal) presenttd. as ,."ell as tilt Nits of COO" decorum . Twice ynrly lilt Alab<lma Supreme Cour! mndUCIs special lItSSions ou\sidf:of Mom~. n'IOIIlly al tduealional institutl(ll1$. The COO" session was I~~nned 10 coincide whh the beautiful city's ~rlllual hisloric pi lgrimage. On Thursday nighl preceding the C(lU" session a reception sponsore:l by Ihe local bar W3S held al lhe Shone. Mansion and a CLE

The SUt>reme CouI1 of Alabama s its in " 1"",1. 1 "".~ion on the blls ke. bal1 "oo. m " in tI.e F.ulaula llillh SchU<>f M)' nl1111' ohm'. T he se ttinM "' ~ ~ unique but s tu dent s and h" "rcno k"c '" it "'a~ tlcfinitcl y " th., <Cill M cCoy," 0

Three AlabalTlll and FadenoJ Tri. ) Practict' Form Books Ava ilablfl ior Immediate Shipment " .

ALABAMA AND FEDERA L M OTI ON FORM S

ALABAMA AND FEDERAL ORDER AND JUDGMENT FORM S

ALA BAMA AND FEDERAL CO MPLAI NT FOAMS

Part of a series 01 Irlal practice lorm book' by Robert Sellelll Smith and Joan Mf;:l nlyre, The price o f "ch 01 these booh i$ SSg,9S pl"s poslage and handling,

MADISON PUBLISHING COMPAN Y, INC. 223 EA ST SI DE SQUARE HUN TSVILLE , ALABAMA 3580 1 (205) 533-5040

.1 /., II/OU

b y R .. " d o ll>h I'. HClI"CIi

a nd Ro bert L McCurl e y , J r .

hlS rqlOI"I comes (0)'00 '''I'll inlothe 19601 Regular

So5sIOrl of the Alabama legislature. It was ",rlllen

following the 14th legisla!;,"c day of the JO-day n-gular session. [)ue 10 the delays innll"ed in prim ing and di stribution. the StaluS 01 some bills rejlQl"led may have changt'd sigmfica ntly.

Ala bama Sta te Bar Bills Tho! Board t;J B;orCQrnmissionen endorsed 5eVmI1 bill. for introduction III this years ngular $l:SS1OIl. Two bill$ were appr'O\'«I wlllCh will. if passe:!. IIlcrea~ annual Ii· =>~ fees 10 $ 150 per year and ~-e the l'XffllpllO!l for first and S«OOd )'eldaw)"ffS. These- bills w~ ;nlrodUClld III both chamben. Sponsors in the Houvar.,j,m Campbell of Anniston and Delh Marien a of Mobilt'. The Somale span· _ IS Charle$ umgford of Montgomery. The Iwo cllang.':! were IIltroduced IJeP3ralely: however. Ihe sponsors ha"edt'Cided 10 substitute one bill incorpOrating both chan~t$. Thi s has already been accomplished in

ftels win endanger tile fund . As of Ihis wriling, Il(l bill has been introduced IQ effoouale any ot lhese changes. Also appnwed by 1m. Commissianers in principle was legislati()!l tQ create a client ~urily fund, Tm. need for s uch a fund and a JlTQIlOOIOO plan to create one was iIlumi· nated in llIe last issue of The Alabama lAwyer. Con s li lU l iollal Revis ions P rOpOSed Both Lieulmam Governor Baxlty and Serullor Ryan deGl'lIffenried " 'ani a new ('J)fI$lilUlIon for AlatGma, l1ley were sidet"""ed in tOOr rlforts last year by an ad,"CI'W Supmne Caurt roling, This ynr Senalor deGraffenried inlroduoed approx,mately a OOten bills to effect s imilar changes in the single boll whoell paS$ed last year. These bills call for ''Qter appr'(l\'a l 0I111e N'peal of portions of the 1901 C(lnstitution and ~placement wilh a s limmed down ''eT'SIOIl.

Ot h e r UiUs 01 In teres t

the Senate and Ihe remaining bill is number 107. In the

House. both _146 and _1,17 arC on the calendar and a sub5titute is ready when the bills reach the floor. The Board of CommissiOOf'r.! alooal>pro';ed a prt>p(l&al l(l m~ke cllanges III liIe sl~le's indigenl defense. fund statute, TiIe~ppr'(I\'edch.l~ included an incl'Nse. in hourly fees 10$2Sl$5O, renlO"al ot the$ I.ooocaponlhelnalot habolual otlendel' and capllal a5eS, an additional JlOIIIIible $ 1.000 III 3t>Pellalc fl'tS for ca!ieS gnonled certiorari. and di,'ef'SIDI1 d a ~rrmt. d these funds 10 lhe Comptroller's dficf 10 CO'l!f the costs d administration. Al the Ix-gInning d tile session, howe-.'er, fK'IIOIiations w,III lhe Comptrollcr'$ dr"", broke down c~aling an un· certain fUIUT\' for any ot lhechanges. The latl'St word from Ihe Committ l't indicall'S Ihe Comptroller has agreed to all chang<.'$ 01 her Ihan I he increase in hoorly fees, which he

As 01 the 14th day, 1204 bill$ wert introduced in the Houstand Senate. Included a1"Ul>ng lhese bills aN' atl.-ast a huoored mort crime bills, $Qrllt!t1l over from last years crime package. None 01 these bills has produced t~ kind 01 cootf"O','ersy as lhe pa~ d. changes 10 AlatGma's Out laws in I ~ last regular SHSion. Certainly at interest 10 AlatGma', trial lawyers ill H.B. 81, commonly referred 10 as the ·'minimum limits~ bill. Thill bill "wid raise t~ m,nomum amount d liability insul'llTlCle requi~ under I motor vthic!t liability policy under I~ MOior Vehicle Saftly·Respon sibility Act. Its companion illt~ Senale is SJ I. 298, AI this wriling both bills were OUI 01 commiuet. bul Adliler had reached tile

'''''.

An important bill fordamcsI ic practitioners is S.B. 86 by

Jim Smith of Hunt sville. This bill provides for court or· dered continuing income withholding by emllloyers as a means of child support enforcement. There have been an unusually large number of State tax bills intrOOuet.-.llhis session. These include proposals tl} increa~ individual and corporate income taxes. T here arc a dozen different vcn;ions of these proposals presently pending in one hooseor tile other.

Law In s titu te B ill s P end ing in t h e Legi s la ture The Alabama law Institute has presented one major revision. the Revised Non·Profit CorpOration Act. and some minur amendments to the Probate Code and Administra· live Procedure Act to the Ugislature. Non _Profit Corpomt io n. This bill is spnnoored in the Senate by Senator Ryan dcGraffcnried (S.B. 130)and in the tlouse by Representative Michael Onderdonk.Jim Carnpbell and Beth Marietta (II .B. 2 16). It will IKII be effective until January l. 1985. For a review of this bill ~ the Ugislati .·e Wrap-Up in the March 1984 edition of The AIa/ttJ",,, {AwyV. ProM' " A",,, n d n.cnt s. T he Probate Code has been in effect since January I. 1983. While working with this neW code. which "'·as placed in Chapter 8ofTitie43of lheCodeof Alabama (1982 Supplement). it was detcnnined tMt incon· sislencies existed within IIIe Cooe and Chapter 2 of Title 43. whieh basically deals with probate pn::u-.lure. T he pr0posed amendments bring Chapter 2 in confonnity with Ihe !'mbate Code bydeleting references todower and clarifying that ··properly'· refers to both rt.'IIi and pen;onal property. These amendments are sj)::Iflsored by Senator Jim Smith (S.B.84}and RepresentativesJohn Tanner. J im Campbell. Bill Fuller. Phil Poole. Belh Mariella. Michael Onderdonk and Michael Box (H.Il. 18i)}. Adminis l ra tive !'roerour". The Admini strative Procedu re Act bc<:ame effective over a graduated three year perioo. The !.egis!ative Reference Service began receiving rules in it s Administrative Procedure Office on October I. 1981. Agency proceedings were governed by the A<:t as of October I. ]982. An agency rules must have been filed in the Ugislathe Reference Servif:e Office by October]. ]983 otherwise they are void . During the past several years. as agencies ha,'c been working with the administrative pn::u-.lurc law. the need for several clarifying amendlll<!nts bec;lme apparent. This bin is the resu lt of recommended changes from lawyers and statcagt."TICies. It clarifies the effeclivedate provisions . T he bill is sponsored by Senator Mac Parsons (S.B . 357) and R"Jl'l"CSCntative Jim Campbell (11.11. 94~ In s titute R ev is ions U nde r S tud y Condomi n iu m Law. Alabama enacted its present Condominium law in 1971. six years before the Model Condominium Act was approved by theNationa! Commis· sionen; of State Laws. After ten years· experience of deal· ing with condominiums in Alabama. the In stitute has un· dena ken 10 update. revise and complete Alabama"s Con·

dominium Law. Thecommittee.chaired by Alben Tullyo/ Mobile. bc<:ame acutely aware of the need for revision with the rapid. development 0/ condominiums in Gulf Shores after lhe de.·aslation of Hurricane Frederick. Alttr se-;·eral years of slow real estate development. intl-rest rales and prices are dropping causing deveLopers 10 com-en apan· "'ems in se'·l-ral of the major cities into condominiums. Professor Gerald Gibbons is the reporter for this project. The committee is not expected to complete their initial draft until September 1984. Guardian s h ip Revis ioo / Pmootc Code. With the completion and enactment of lhe ··intestate suCO!SSion and wills"· portion of the Probate COOt. the probale revision commillee has clloo;;.,n to review Alabama laws dealing with guardianships. This correspnnds 10 Arliele 5 of the Uni form Probate Code. The re.·jew separates guardianship of lhe person from a conservatorof the propeny. It fins t he gap in our present law and clarifies conflicting and over· lapping statutes dealing wilh curators. guardianships. li· mited guardianships and other stat utes dealing with protl"Ct ive persons. The com m ittee shoo Id complete I hei r draft in 1985. Mr. E.T.Brown ser...esaschainnano/thecommit· tee while Professor Tom Jones is the reporter. 0

P. Reaves. "grnd" ale 0/ Il,l Unit=;/y 0/ Alabama and Un;vers;ty 0/ Alaba"", School 0/ /AU'. p,(U;I;cts will, Ihe Monll1>mery fi.", 0/ Wood. Millor & Po,nell. f'.A . fie prestlltly u:n'eS as I.gislal;"", cou"",,1 for Ihe A Ia· ba ..... Siale Hor. R,,~do/ph

Robe, IL. McCu,k)'. Jr .. dir«.lor o/Ihe Aklba lllo Law {nslil"te. mx;"'ClJ his B.S. ~nd LL.B. degrees /ro", lhe U~;""rs;ly 0/ AIa/ttJ"",. {~ Ihis regula, Co/"",". M,. McCurley will kttfJ I<S updated on kgisla· lion 0/ ;"uTliSI and ;"'/JOrlallctl 10 Ala· ba"", aIlQrnt)'$.

T ... W.TC>t ... D

"ow.LJtY ....",. c ........

. ... C' ... ' 1' .... ' N DIG'T ...... W..-":N ...... ,.

MODERN TIME UU .. ONTGO .. . . V .. Of<TGG .... v .....

".u.

'"".

IDO/U'·IUI

" . ,"" . . . .. . . . TT • • ' . . . . . . .,. ••~" • • •

- . c ..... _

.11.y 1!l84

lla'''''' onl) OOtl,UtllCr credit transac;tion~. ~r.d 'I~ pur~

is to proIect the-

ron5unlCr by d,,.;,,",m!! tlw lenns 01 cro'dll,

by John M . ~I i lli"j(. J ~. a nd O:wid B. lSy"",. Jr.

• Sl.ons

Workme n 's com!X'nsalion " . " e mlllo)c r ma y txo I' Sluppt.'1:I

lode n y l'mployc r/ e mployee rdution s hi" ,I/o"Mi.<S. t:"ltrpr;Sl'S. {"c.

~. {Iros-

if)'. Civil (\PI~';,b :-rll. 39-16 (Februar;' IS. I ~I). In 3 ra«, of first imprt'l;l;ion in Alabama. lhe Coml 01 C,vil API""'ls he'" I rmplo;'cr mal' \,.,

an ",nplo)."er'em" d¢ipilc the .llt'SBofancm-

lion 'fl' on "'klher 011(' I - In

den;""'!.

""r\:lIn 11(1 rcalj()n

should lJe dilf... d;!~;'d; oour1. hut 1"~,11 Ihllt is ,'cry dr~r and ,-an t.-, "hanll~od OI1ly b~'

...,,,t

thelt of a

the Supr,'!lk' Coort ...·as

1'"blk works coutraclS . . . section 39 .2." forfeiture uffimlcd Cl4ru C;;ms/rwl«m Co. v. Sklk' of ;I/ilb.ama 1I;g111,"Y /N/Nlrl..,rlfl, C;<il

Al'Pt'at. NQ. 3761 (january 2S. [984). A 1:oolraclOr likd suit 10 ha'-c ;I~ bid rescindl'd and Its bid 000d return.:.:! due to) a unil3t ... ral mIstake in OIl(' bid iu~rn. Tile bid u~ the figun, $386,000.00" imn\('(il8Idy pJ1lC('(!oo by the words

, , the

was subject

the

Truth on I£ooiiiil ,\ct (l"1U\) since he "a~ IJt:fnuU,'lIlu pal' in in5tallmenls and 3 finanox<:hal"K(' .... 3~ .m",>SCd. The COO" of ,\ ppeals disagrr«l .tal UlJ! 1hal s..cuon 8 8-8. Ala. GJ.dr 1975.

c.:""

mandall~

that optn lICWUn!S bear in_

tere;.t Imlll thed:'I ~ I h~optn account i.

dC<!1llI'Il d,,,,-'(), I."., the dale the 1.1S\

item was cnW-ro . The T II .A mrum·

uncons-

cious. not present. or wo intoxicated to lorm an mtffil dunng theoccul'T'efloCeof all of Ihl-f:\'ffiIS critical 10 thl-<:ommissian of lhe crillY. Al thl- cbe of IhIevidence. lhe uial judge undertook 10 charg!." IhI- jury on I he allinnative defffiSoe of uwolunlary intoxic:atioo. <:OOrt cha .......'d ill pcr1inent part:

n.e

N<l.,e""", mn go"'" here and ,-oIun· t.nt~ g<'I drunk and """'" into this coon and u"" that a. an excu"" for you. ladll'!l and lI"n'icmen. to say he

i< not guilty. We JUSl ",,"'1 operal. lilt' l~w in lhal [ashioo, lio"",'.r. if lit' """"""'" 50 imo<icaled lhal hIS mind =~ 10 [unelioo a. a mind "lid h.. b4 ...""", a" idioJl. if he i$ not "",,nlre as 10 .,hohe i, or where he i. or Ihinl1S of lhal nalure, if he is idiolic. llltn of rou~. lhat rouKi to. an rxcusr to rommil a en"", , . , Jodge Sam Taylor writing for a un· animous Coul'l of Criminal Appeals re,'ersed Ihe case. Jodge Taylor wrote: Thi. cha~ jllCtlO'r<'Ctl~ Slat.. lhe law, idiocy is not 1110 measuremrnlto be employ..:l by the jury. The rourt ern<! 10 rev«Sa lin gi "iog I hi. eha rge.

Mu ltiple defendant re llreSentation . .. cOllflic t o f interest

Sellers I'. Siale, " [)j ,'. 249 (March 20. 19&1), Sellers filed a pro se petition for writ of error OJram nobis. based upon the issue of ineffective CQUnsel. He was indicted for burglary along with IwO OIher defendants. T he petilioner was convicted of second degree burglary. wtlhe indiclments against his caJe. fendants were dismissed. Included in Sellcrs' petition for writ of error coram nobis was a leller writ· ten 10 him by his Irial .1I0rney who was also the trial allorney forone of the codcfelldants. Theallorney's leller read in part: Jerald Carler loid me Ihal he and

Dick liarris "''Obld 1.,.lify Ihal lhey c,.nmiu..:l 1110 burglary while you were sle<ping ina 1nOI~1. I dKi not call Ihtm for Iwo ",asons. Firsl. I did not know 01 any \egal proct<Iu", 10 haw lhtm l"Od""ed lor lrial sira lhey were i"""""""led in Georgia, Second, f "p~nl'" '"aid, I could not advise him to t.,.tify for you and...,. .,.;V~ a sure sen lence .ince Ihtre wu a good possibilily tile SIal. "'Obld !leVer Iry him or [Ji,ck ...

.i"""

Judge Huben Taylor writing for a unanimoosoourt reversed and remand· ed the case. The court held that lhe attorneys' leller affirmative I)' showed a connict 0/ interest. "When a conflict of interest exists, t here i s aden ia) 0/ t he righl 10 eff""lh'e representation ellf'n wilho u l the sh&wing 01 Sptcilic pYejwdice." As a result 01 the Sellers OIse. Ihe Court of Criminal Appeals has ado]lled a "!'Cr se" rule of indfeclive represenlation where a conflici of in· teresl exisls. (Emphasis ours,)

Rece nt Decisions of the Supre me Cou r t o f A laba m a-Civ il

Ins uran ce, . , Wi.mm O\'crrulc d and Utica reinstated Uniled Slall'S Fidelily & Guara"ly Compa"y~. lVaru·icll/.k""lopmcnl Co.. {nc .. 18 AHR 1086 (February 2. 1984), USF&G issued a comprehcnsi,'c general liability policy to a housing con· lractor , The policy was in effect when the house was bui lt, bulthc policy had expired at the time of the accrual of the cause oJ action, i.e .. at the time damage occurred. USF&G denied coverage for alleged faulty workmanship because no insurable loss occurred within the policy !'Criod. The policy OJntained the customary definition of "occurrence" which requires damage tooccurduring lhe policy period. USF&G asserted. and the Supreme COOI'I agreed. Ihat as a general rule the time of an "occurr~" of an accident within the meaning of an indemnity policy is the time thecomp!aining party is actually damaged ralher than the time the wrongful act was CQrnmiued. Therefore . the insurance that is in force when the property damageoccurs is applicable rather than the insurance that was in force when the worle was performed.

Civilil rucedure _.. new rule 54(1)) certifi cation proced ure an llounccd f'rAltrv, Grrerand 5<ons. (II' .. 18 ABR 871 Uarlllary 'no 19&11. In this case. the Supreme Coun of Alabama look the opportunity to announce a new proce· dure in Rule s.J(b) eel'lificalion cases. The Supreme Coon stated that when it appears from the record that the al" peal was taken from an order which was not final but which coold have been made final by a Rule s.l(b) (;(;rtifi · cation. rather than dismiss the appeal the Supreme Court will remand the case for a determination by the trial rourt as 10 whether locel'lify the order as final ]H1rsuant to Rule 54{b). and if so, to enter an order and to s upplement

the m:ord to reflt'<:1 certificati()fl. The judgment ..... ill be taken as final as of the dale the 54(b) cel'lificalion is en· tcred. Adoption of this procedure would ad"ance the policy consideralions un· derlying Rule s.J(b) by s peroing up the process of reaching Ihe merits in a proper case.

Ci vil proced ure _. _ rule 4(0 amen d ed eo"wlcs v. U.j Ch""ro/el Ca.. {ne.. 18 ABR 1205 (February l4. 1984). Upon recommendation of the Suprcme Court Advisory Commit lee. Ru le 4{O. ARCP. was amended cfft'<:t ive March I. 19&. to provide that. when there are multi · ple defendants and the complaint has not been served on all defendants. the plaintiff may proceed 10 trial and judg· ment as to those !!e"'ed, and judgment againsl those served is 1"",1 and. timely appeal mUSI be taken. The ]H1r· poseoflheamendment wasloharmoni~ the provisions of Rule 4{O with IhOlj(' ponions of Ru le s.l(b). ARCP. which provide for finalilY of judgments against fC\l<'er than all parties.

Re s tate ment s ect ion 402A _. _ cum ment k a pl)licable in an Alabama extended manufacturer liabilit y doctrine action Slant v. Smilh, Kline & French 1.11ooralurin.18ABR 1322(March9, 1984). The plaintiff had an emotional condi· tion for which Thoraizine was pre$cribed by a doctor. She toole the medicalion over a period of time and sulJse. quenlly developed Thorai ~ine-induct.'<I hepalitis. She sued the drug manufac· turer under the A\ahama Extended Manufacturer Liability Doctrine. The fl'<leral dislrict cQUrt. as a mailer of law, found that Thorai1.ine, a prescription drug. was an "una"oidably unsafe product" as prescribed in Comment k to Section 402A of Ihe Rl!Slalem~nl af Tori. and held that. as such. lhe pr-o. duct is neither deft'Ctive nor unreasonably dangerous if the pnxIuct is properly prepan'<l and i~ accompanied by proper directions and warnings. The tOlIl'I also found that where a drug warning adequately warn ~ a prescribing physician of Ihe potent ial dangers

of a drug, there is noduty for additional warnings to foreseeable, ultimate us· ers, i,e" consuming patients. In a rertifkd question case, the Sul>reme Court agreed with the f<:<!eral district coun that in acrordance with Comment k. supra, an "unaw,;dably unsafe" )'et jlI"operly p!l:pare<\ drug is not defective or unreasonably danger. ous within the Alabama Extended ~Ianufacturer Liability Domine if there is an adequate warning acrorrlllan)'ing the drug. The Supreme Court also agreed that the manufacturer'sduty to warn is limited to an obligat ion to ad· vise the prescribing ph ysicia n of pol en tial dangers.

Torts .. . e lllployer not res pons ih le fur work rele:ts e in mates ' torts out s ide s cope of e mpl oymc n t Rokrsoll v. Allied Fou!ldry & Mo· chillery Co .. 18 AS!/: 1:./9.1 (March 9. 1984). In a case of first impression, the SUjll"effiCCourt held that an empioyeTof work release inmates has no "special dut y" to sUtler,.ise or cont rol thl!Sl' in· mates outside the stOlle of their em· ployment.ln this case. the plaintiff operated a oonvenicllt:l: store located near the l'1llployer's premises. During work· ing hours all employees, including work release inmates, were permitted to patroni:re the ron"emence stor(!. One ("'ening, two inmates purchast<l spirits from the stoxe. became intoxicated , and subst'qucntly assault ed the plaintiff. Although sympathetic with the plain· tiff's plight, the Supreme Coun felt oonstrai!lCd to follow the g;'neral ru le that ooe has no duty to protect another from criminal attack by a third party.

'VOl-k ille n's cOlllpens ation ... com po "arrie r is nol a "re allmrt y in in te re s t" }-;x I'Mlt: lI~uY'1i (IIvu-eIlIJ./A!j",all;, 18 ABi'I lroo (February 2, 1984). The Supreme Court was asked to consider whether a workmen's wmpem;.ation carrier which paid benefits to an em· ployee is a "'real party in interest" under Rule! 7(a), Ai'lCI'. and accord· ingly, required to be joined in an em· ployee's third-par1\' action under Sec· tion ;!5-5-1 t, ,lIa. Cod~ 1975. i'lule I7(a)

provides that in subrogation cases the a(tioo shall be brought in the name of the subrogee. The Supreme Coun diS' tinguished the workmen·s rompensa· tioo carrier situation from the usual subrogation insufllIlCC' cases reasoning that the "real party in interest" is the one owning t he sui>stanti"t right to be enforced agai"sllhe 10rljlXlS<lr. In third·party actions under Section 25-5·11. hO .... c~ff, when the employee exercises his statutory rights against tlte tortfeasor, his rights are cxciusi\"e if he files suit within the one-year period and the '''orkm~n's compensation carrier's interest is limited to whatenr r<'CO"ery the employee recovers from the tort feasor. [)uring theone-year period. Seclion 2:>'5·1 1 gives the insurer ,t(> substantive right to enforce against the tonfeasor. Since the workmen·s compensation carrier is not a "real pany in interest" under Rule 17(a), the carrier is not required to be joined under Rule 19(a), ARCI'.

Recent Decis ions of the Supre me Court of Alaba ma-Crimitla l P rose culor's reference to defe ndan t's f,til u re to te s li fy cons titutes inc radicable p rejudicial error Ex parlr T"ciwr, 18 ABR 1~1 V.larch 9. 1984). The Supreme Court of Ala· bama granted the writ fi C('rtiorari in order tQ review whether the trial court erred in denying Tucker's m<>tion for mistrial based upon the alleged im· propriety <Jf C(' rt a in oom men (s m "de by the prosecutor. During the direct e Kamination of a defense witness, the reo cord reflects the folIQwing CQI!«tuy: Q. "Who[ dId she Sial. to yw?" M • . Ste ph ells: "W~ oIli«"I10 whot she $1.1«\ 10 him_ $h,' /u!re. ma~ it please thecourl. She",," t.ll .·/wl ,h~

loid him." ;\Ir. CIIII"'I'I",r: "Judge. wN~t

the remark just mad.

Stel'hen'_ ..

.\Ir.

On appeal 1he State argued that any prejudicial impact was eradicated by the trial court's instruction to disre-

gard theoomment. The Supreme Court ronsidered the com ments to be SQ prejudicial as to be ineradicable.

J ury reques t 10 view the defendant after s ubm iss ion uf the cas e is error Hxpa rle: I/(II/rosle, 18 ABR998 (February 3. 1984). The Supreme Court of Alabama granted ccniorari to review the decision of the Coun of Criminal Appeals. which decided that the trial court did not err when it permitted the jury, o"er objection, to view the de· fendant's face to see if he had a SCar 00 it after the case had been submitted to the jury. The Supreme Court. in a un· animous opinion, disagreed with the rationale of the intermedia te appellate court citing the principle of law in liar . !lagt. V. Siolr, 290 Ala. 142, 274 So.2d 352 (1972). In lIartlagt., the court ruled "t hat a

jury request to view the hands of the defendant, who was charged with murder by strangu latioo, came too late because (he case had already been presented to the jury and any member Qf the jury had had the opportunity \Q ol>se"'e the defendant's hands during the trial. particularly while the defend· ant was testifying in his OWn behalf." In Btillraslt, the Supreme Coun was funher concerned with the fact that the defendant did not take the stand which funher compounded the error, because he was f~ to stand before the jury and show both sidesof his fa.::.. .

Knock .. nd announce ... sti ll req uired Ex parle Galllltiuay. 18 ABR 1031 (February 10, 1984). In this case. certiorari was granted to ascertain whether the (I'o'erruling of the defendant's m0tion to suppn'SS based upon the failure of the police officers tOCQmply with the r<:quisite!i <Jf the "knock and announce statute" while executing a search war· ran! was re,'er;;ible error. lIere, the officers asked sorne chil· dren who were inside the SCrt~ .......<l porch the whereabouts of their father . Upon being told that he was in the house, the Q!firers, seeing the defend· ant inside at the time, entered the resi· dence and, displaying identification,

handed the defendant a copy of the search warrant. It was ck'ar from the r<orord that the offia!1'!! \.,hoent"rcd the defendant's home through the from screen door neither "knocked nor announced:· The Supreme Court throoghJustia! &ally re;""Cted the State·s argument that the officers had talked to the two children before entering and that in any case literal compliance with Sec· tion 15·5·9 has never been required . The court foond that these circum· ~tance~ did not justify the entry of the offia!rs through the front door absent compliance with the requirement of Sco;tion 15·5·9. Ala. COOe. In reve,."ing the trial court. Justia! BeaUy noted that ··the record did not demonstrate any necessity for an unannou nced en · try. The ot'r\Ce,." saw the defendant approaching the scrren jmCh from the fiving room . There was 00 evidence that any announcement or delay on their part woold alert him or place them in peril. or that the ddendant knew their identity and pt.Irpo5e or that the officers entertained a reasonable befief that any announcem~nt of pur· pose would lead to destroction of the evidence. ..

Wi thc rs poon re vc rsal affects se nte nce on ly lkcko. Stale. 18ABR 1063(February 10. 1984). On retrial. the defendant. Beck. was com·icted 01 the carlital 01· fense of rOObery·inttntional killing in violation 01 Section 13-11·2(a)(2). There· after. he waS sentenced to death. The Court of Criminal Appeals remanded this case to the trial court for an additional inq uiry under Wilhen· /JOO" v. ll/i"o;', 391 U.S. 510 (1 968). Af· ter remand, the Court of Criminal Appeals entered a dcds ion reversing rof/i the com'ktion and the sentence of death because a juror had been improperly excused for cause as a result of her opposition to the death penalty. The Supreme Court granted the State·s pe. tition for a writ of ceniorari. The sole issue raised by the State waS whether the jury ellClusion error under lI'i/},crs/JOOu v. f/{iuois nccessi · tJtro a new guilt s tage trial when. under Alabama's bifurcatro procedure.

a &eparate sentence proceeding is required. The Supreme Court 01 Alabama thruughJustice Adams held that only a ueK' iU!1I1~n'" p1"<XMf;IIK is r<'Quired on remand to the trial COUrt.Justice Adams reasoned: We ar~ aw,re 01 00 dtcisions 01 tile Supreme Court 01 tile Unit«i States 0< tile ImI-er lede .... t court. that SUI'" port !l!Spondent'.

~ in'~

t.tioo 01 s.ction 13·tl·2(.). Cod,o/ ;\lab.>ffl~, 1975. In It'ilhmpooR o. II/i~<Iis, tile Supre"'" Court 0( tM United States made it d~ar that its holding regarding jury exctusion.".· TOr" d'od nQI render invalid tile peti. tioner·, coovict""', bu, onl;- his sen'· '"""" 0( death.

Jury charge ...

th e d ifference bctwc"n intentionalllll1rder and uni versal ", .. li ce W~sh;'ogt(l" u. Sluff. 18 ABR 1285 (March 9, 1984). The defendant was indicted on a one count indictment charging that he intentionally mur· dered Walker. He was co,wicted 01 murder and his cooviction was affirmed by the Court 01 Criminal Appeals. During the trial court" s oral charge, the judge gave a lengthy charge as to the definition of "recklessness·' and told the jury that they could convict the defendant of murder if they found that he acted "recklessly.· · The one-count indictment. however. only alleged that thedefendant acted "intentionally'· in causing the death 01 the "ictim. Chief Justice Torbert, writing for a unanimous court, reve~ and held that the coort erred in giving an in· struction on '·universal malice" murder where the offense charged in the in · dictment was intentional murder. The court stated in pertinent part ;

The diffc....-.ce be!,,~ 1Iomicid< by I"IlCk k:ssronduct manifesting ex"""", indifference to human hfe, someIimM rderred to as ··uni,'.r.. 1 malke murder"· a nd "purllOS'fu 1"' or ··k now· ing murder·· ",u ... t forth in NUflh· ;.wan~. Sial" ~13 So.2d 1169. 1170 (Ala. Crim. App. 1981). IT)her. are !!<"'ffal MIt""""es between intentional murder, Sectioo 13A-&2(a) (1) and I"IlCkiess murder, Section 13A-&2( .)(2~

Soxtion 13A-6-2(a) (II requires inten· tional conduct and Section 13A-6-2(a) (2) requires reckless conduct. On the other hand, Section 13A·6-2(a) (2) luni· ,·ersal malice murder] requires a show· ing that the defendant's conduct "'as directed at human life in general as opposed toa particular individual. This additional difference bet"'een the of· fen$(' the defendant was indicted for, intentional murder, and universal mal· ice precludes the laller luniversal mal· ice murder I from being a lesser and in· cluded offense sill«' it can be established only by a showing of facts not required in order to be com·icted of in· tentional murder.

Recent Dec is io ns of th e S upreme Court of the Unit ed S tal es Hobson's choice " , probation re vocation or th e fi ft h amen d me n t Mimlrsola v. M urphy, No. 5:2-827. 52 U.S.L W. 4246 (February 22. 1984 ~ In 1980. the defendant pled guilty to a sex· related charge in Minnerota and was gi"en a suspended prison sentence and placed on probation. The terms of his probation required him to participate in a treatment program lor sexual of· fenders. to report to his probation of· ficer periodically, and to be truthful with the o(r,cer "in an matte,.,,:· Our· ing the course 01 a mec:ting with his probation offi~r, the dclendant was questioned about his participation in a 1974 rape and murder. During ques· tioning without benefit of Miranda Warnings. he admitted that he had committed the rape and murder. The defendant was later indicted for fi,."t d~ murder and he sooght to suppress the confession made to the proba· tion officer on the ground that it was obtained in violation of his Fifth and Fourteenth Amendments. The MinneSOIa trial COUrt found that the defendant "'as not in custody at the time of the confession and that the confession was neither compelled nor involuntary despite the ah!;ence of Miranda Warn·

ings. The Minnesota Supreme COlIn reyersed. On writ of ceniorari. the United States Supreme Coon held that a statement obtained by a pmbat ion oflicer in a noncustodial setting from a proba· tiont!1" who fails to assen the privilege againsl s.-1f·iocrimination may be in· lroduced againsl him in a subseq uem criminal prooecution SO long as the of· Iker does not induce the re!;panse by improper thr~'3ts. The Coun further reasoned Ihat Ihe probation officer is .101 l"l."Quin.>d to give Miranda Warnings hefore setting out toobtain incriminat· ing Statements. Mr.justice White ·sopinion reasoned that the defendant·s general obligation 10 appear before his probation ofli<:cr and am;Wt!1" questions truthlully did not in itself COT,,"ert his otherwise ,·01· unt3ry statements imocompelled One! within the meaningof the Fifth Amend· ment.

R e cords of a sole prop,; e tor s hil' an d Ihe fifth ame n dme n t Un;lal Siaies It. Joim DIN. 82·786 decided. 5:! U.S.!~ W. 4296 (February 28. 1984). T he respondent was the owner of scveral sole proprittorships. In lale 1980 a grand jUI)·. during the COUrSC of an im·esl1gation of corl1.lplion in award· ing county and municipal conlracts. served Ii,·" subpoenas on the respOn· dent. The respondent filed a motion in the Federal Distric! Court seeking IOquash Ihe subpoenas. The District COUrt granted Ihe motion except with re5j)(.'(:t 10 th06C documents and records requin.>d by law to be kept or discl(l!;l.'<lto a public agency. The District COUrt fo. tus.:<1 the issue by Slat ing, ·"The rele,·ant inquiry is ... whether lhe acl of producing the documents has commu· nleati,·" aSj)(.'(:ts which warrant Fifth Amendment protection.·· The Court of Appeals 101" the Third Circuit affirmed. The Supreme Coort in a split deci· sion affinned in part and reversed in pan and remanded. justice Powell·. decision eXlends the rationale of Fisher ". Un;lf(/ Siaies. 425 U.S. 391 (1976) to sole proprietOr1;hijl!i. In 1'ish~r lhe Su· prenle Court held that the contents of

business records ord inarily are not privileged because they are created voluntarily and without conlpulsion. The Coon m1sooed as follow.: A. we n<tIed in Fbhn. lhe hhh

Amendment onl y protects lhe per_ a..." ing the I'ri,·ilcge from rumpel1ed $0'1 f·incrim ina Iion. Where the preparation of bu~iness records is voluntary. no compulsion i. present. A subpOena that demands pr0duction of documents does not compel orallestimony; nor would it ordinarily compel the taxpayer to restate. repeal or affinn the truth of Ihe contents of lhedocument sought. ·"This reasoning applies with equal force here:· In this case the respondent did not claim thaI he prepan.>d lhe records involUntarily or that the subpoenas would force him to restate. repeat. or affirm the 1I1.It h of the records· contents. The fact that the records are in-his ~ion is irrelevant to Ihe determination of whether the creation of the records was COm· ptllt'<l.

No r c trOl, c li v e aPI)lication of 1:.ffll"urds II. Arizona $QIc", v. Siumes. No. 81·2149. 5:! U.S.L W. U)7 (February 29. 1984). Stumes. a homicide suspect. when ar· rested on unrelated charges. made in· criminating statements 10 the palice about Ihe homkide aftt!1" the police had twice renewed imerrtl:3tion despite Stumcs· in'·ocation of his right to counsel. While Stumcs' appeal was pending. the Supreme Court held that once a suspect had invoked his right to coun",,!. any s ubsequent conversation

must be initiated by him . £dk'l1rdS v. An·.""". Awlying F:dk'l1l'ds to this case. the Court of Apptals for the Eigljth Circuil found that the police had acled unconstitutionally and re,·crso:.'<l the conviction. In another splil decision thc SupremeCO\Irt reversed and remanded. holding thaI £dk'l1rdS v. Ari",,,a should not be applied retroactively. This decision prerents some star· tling language. On the one hand lhe Supreme Coon rec<;Jgni~ that. as a I1.Ile. judicial decisions apply ··retroac> ti,'d}·:· Hl!binson v. Neil. 409 U.S. 500. 507·508 (l97J). ··Indeed. a legal sYSlem bas.:<1on prec...'<lent has a buill_; .. "n_ s"mpli{JII of retreactivity.·· (Emphasis ours). On theother hand.just ice White in this case staled, The retroani,·e applicalion of Ed· ""rd> would Ita,·e " di"upti"" on the admini.,ration ol justice. We canoolyguessal lhenumber ol castS ..·here Eo~"td. mighl make a dill.,· .""" in lhe admissitMtity ol ,tal.. ments made to lhe POl;"';'. but the number i. surely sig",ficant. In .11 ol t hose. !lOO'Ie i"G uiry would be r"«Iui~ to asess lhe subsl.nli.lily ol any Ed""",h claim. ThaI inW,Ilig:tlion. and lhe roossiblo retrial . woold be hampered by proI;JIems of Io/iL tvi. d"""". faulty memory and missing

"rr"",

wil~

In sum. Hd"'Ilrd. Itas liule 10do wilh Ihe lrul h·fi ndi ng f unclion ollhe cri m~ naJ trial. and the rights;t is designed to protl'Ci may still he d.imro by I hose ..·hose ron \lie! i<>n. pre<:t<lalt he decision. It woold be unreasonable Lo expe<:t law .."Iorren><nl aUI!..,..;ties 10 1Ia'"I! oonductoo lhem,d"." in ilC"" oordancewilh it. brighlli"" rule prior 10 it, .nnounccmem; and retroacti'"I! awlication would disrupt lhe admin· istralion ol justice. 0

Joh"M. Milli,tg.Jr.. a mcmiJrr o/Ihe ,\IonlKomay

la~t

firm I.J/ lIi/l. /liI/. (Arter. FrOJ'w. Cak & lJJack. rrai,m his /J.S. def(>W/rom Spril", 11;/1 CoIIl'fft'a"d j. /)./rom Ihe Uu;'oers;ly 0/ Alahomll. AJ II co·au t/lllr I.J/ sigtl;jicaJlI recenl dec;· s;om. IJe roVen; Ihe tidl por/;o".

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4-5

14-18

SOCCESSflIL INJURV PRAC'TlCE

LABOR LAW ANO lABOR ARI!ITRATlOtl It!.'ton 1m. Dallas Spa .... ed by. ~ t.eooo f<uIcIot, ' for InIttmiIuon 1214; 69(1- z:J77

SCn!d~ pa'""""' !ly. Cl~ :.a....... •• 11.4 Cost. $435 Fcr~omvt"

415)3464457

6-9 15-16

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FWEIIAL TAXATION Of ESTAlES AND

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PREmIALANDTfUAI. TAC1lCS Th!' fa;"""",. ~'" Il1o.o ~ U¥. o.!onsr F\o5Nrt/1 lem".".

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Spcoooed by T..... Ted1l.\'ltwn1tj

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CreaI\.'.·14.7

5250IM'''''t'mb<>r5 For InfOflllilt""', (312) 567·~72S

17-18 PROOI)C'T'

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25 friday

S!xIoooed by 0.<...... Cr'e<lits: 15.3 Cost. S270/..-.mDel'l:

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$Z75Ioonl' otI,lbo!. , Fcrlmormatlon '41~' Z"l2·5995

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18 friday ANNUAL YOUNG IAW'IUIS SEMINAR

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1r&tMe 'or C1.E <l:tso 63 Cost., $6S

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12-14

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17-22

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Credits; 33.5

20-22 AlABAMA INS'nTlfTE ON fEDERAL TAXATION

I1yatt _ . BOl'mJnqtlam 5p:lnsoood by: AIoIbami IrmlMe 00

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fU NDAMENTALCONCEPT'S OF ESTAlE

ENII1 RONMEHTAL UTlGATION \/nlVfl"5jty 01 CokncI<> fngll'll'f'r1ng Cent«.

PlANN ING Tho ~.... 0\iQg0 Sponsored by: _ f i g law lrl!tilUle

Credits: 2\14

Cost, 5350 For 1n1o!ma\JOf1: (212)765-5700

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27 fiiday EMPI.OYMEHT "ffiA MINATION

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prtpare materials are short-cha"lllng lheir audiences. Concen1S in this an'll should be dUl!O:led 10 IIIe ltc:turffS. the !!tm"'ar I pOrISOT$. and the MCtE Comm ISSion. f'artlClp;llll5 in all appro'.ed activit y must be gwen the opportunny 10 eo,'lIl· U41le Iheeffecti,'efIeSli and usefulnessof tile acuvlly and a summary of the results must be forwarded to lhe Com· mtS5ion, PartlcillanlS who take lhe time I 0 com pIe1 e t he Q\Iel;I ion na i res ar~ prolllot ing lhe a.a;oontabi1ity of sponsors 10 Iheir lawyer....'OfIsumers and to Ihe membership 01. the Alabama Slale Bar as a whok The MCLE Commission is dillgt!nt in requiring these eva· luallons of an spOnson. including the State Bar.and acts withoul delay wilen

CLE GNews b)" M nr )' L yn Pike Sta ff Oi r.,.,lor, MCJ.E CQ<um lss ion

Plobitms are revtaled.

robItms drah .... ith as (heyoccur wnd the best cha....,. of belllll lIoh~

effectively. As PresidHJI

Ilai~ton

knew when hecumposed the ~morandum $tnt to bar mcrnberson

Man:h 6, 1984,

SO!l\e

~uggtSllOni rf'l,'lIrding

criticisms and mandaIOf)' con·

tinuing l('gal <'ducat ion had 1101 previously been diroclN 10 the Iradership of the Baror the providen; 0( CLE activ;Iirs. Thoow.: iaw)"tlll who tool< the lime \0 ,",'rile liloolth1 ful. informalin \etten; dod thtm!dves. the M etE Commis-

Auorntys O'o\'e II to themselves and to the1rdiel1lstoauend prIlgI'lIlIIS reJe. "ant to lheir an'll! 01 practict. Anend· ing CQUrIeI in haste al the end oIlhe year jusl 10"~ eredl!" or auen<la1lCt' of only parIs of prIlgI'lIms where fun credillsdaimed defeals lhegoal ri im· proH'd COIllpctcoce 10 practice law. (r('(hls are nOI an end in lhemselves but merely a measu~ of appro"'''! in· Slructl(lfl, 0

to i rocrease I ~ compel"""" of attorne)-'S and IlOl OIhen. ThtS holds unltss lhe Inleresls and ex pert lse of I~ ot hen are fiufrlCM'nlly sImIlar to thooe 01. anor· I\CYSIOwarranl aWO"alofaCQU"!ton a cross-disciphne basis. Qualily Wrlllen mall... ials. complete wil h cilalions wlll'Teapproprial(,'. must be gh'e n to all Imticipants in accre· dited 3Ctivllid. [.ectu~rs who do IlOl

ABA BAR LfADfRa»

sion. and the Bar a sen-ice. The MetE Commission. composed of mne Bar CommlSS~ elected by

INSTITUTE

lht-ir pe«S. $Upef\'I5eS It.. administ ...· tion ci IheCI.E rules by the Bar's staff. The MCI£ Commission does 1101 sponsor or conduct U>nlinuing legal educa· lion acli",II('!I. h IlI<!t'tS fOIl' losix limes annually 10 de,'clop policies to further the teller and inlenl of the (LE rules adopted by the SUl""tmt Court of Alabama. Al l~ limes. it considers "'" quests lor Rminar and sponsor appro-

,-als. rtquesl$ for exemplions and

'.'."'ff'S. and probImls brought 11) ilS

allentlOn . The day 10 day admimSlT3' I,,'e functions are carried 001 by IWO memtw:rs (J/ I~ Bar's slaff. with guidance from t~ Bar's neruu"e direclor, t~presidelll.and t~chairman 01 I~ MC t E CommlSSI(lfl.

All activities 'pprQ\'oo forcredit must nl('tl ctrtaln standards, For example. an activily's primary objccti"e must be

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Now there's an easier way. AmSouIh Bank's new W. and TnlSl Form ~J!'::.:a compIeie and up.lO<lale . c:J will and tnJSl Ionns . to make )'OUf lOb _ and 1asIIw. In addition. exI/lfISNe eommencanes are heIpfU in IN design and mpIementa/lon 01 vanous estate ~. These Ionns rellea ERTA. TEFRA and recenl r8Vl$lOllS III Ile Alabama Proba!e Code and wi be updated peliodicaly 10 insure 00I111~ lICCUI'acy. To order your set 01 Will and Trust Form Books, send your check for $95 .00 payable to AmSouIh 88nk NA to !he Tru$! 0M$i0n at any oIlhe lIddtesses below, or Q)flIaC1 !he AInSooAh ESlaIS and Trust PIarnng AepoMel'UlMt in 'fWI area ArrISo<Ah Bank NA P. O. Bole 1128 AnOIsIoo. At. 35201 236-8241 AmSoulh Bank N.A.

P. O. BoK 11426

B"mul(lham, AL 35202 32&5390 AmSouth Bank NA

P. O.

Box usa

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Mobile. Al 694-3211 AmSouth Bank N."". P. O 0 . _ 431

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MonIgomery, AL 36101

b, Ta ze ... ~ 11 T. Shepard

Rejection of Collective Bargaining Agreements: An Analysis of In re Bildisco

Job A. Wi' ....., is" "",,,be, of lilt lIulsri/k 10 .. firm ul8dl. Hid",mwtl, IItm"8frm. Spa./mJ(JII& ShqanJ. 1'.;1. lit hulds ~ /J.A .from 1114 U"irenity of Alabamll, II }. D./",,,, Climber/and ["'It' Sd,O(J/ and all 1.1../11. in I",/Iv, 1.0,., fro m NtlA! YQ,k Uui· ,~rsiI)' Il lId jl)rmuly Knw/ a. If staffa lIurnry for I"~ Na/;ollai lAb,,, Nt/aliUIIS I/oora I" It'''''hilWon. D.C. lie i. a ",~",Jxorv/ Ihe Alaoomo. IbmsY{''''lJia, and floe m.lriel u/ U!lum/.tia bur ilUQCwlioll1.

.""

John A. Wilmer

" 0

FdJOruary 22. 1984.lhe Supreme Court of the United Slaies handed down its land· mark docislon 01 {II fli Biklisro. 465 U.s. _ _ (1984). which add~ the 00,-io\ls toonicts between the National Labor Relations Act (N LRA) ~nd the Bankruptcy Code (Code). Amid mueh "",blicily and commtntary from union and rnII~"'tnt ad'·(lC3tes.theCoon rultd unammou5ly that a bankrul'lCY court may permit ~ioo d 3 coIlec· ti,~ bIiIrg;uning agTffITIent if thedebtor· emplo)'ercan show thaltM~1 is burden!lOll'lt and th~t equities bal· ance In fa.. or ot ~tion. In a morecomro"ersial fi"'!'m~n rna· jority de<:ision. the Coon also ruled that a dcb\or-emp/oyer does 1101 commit an unfair labor pDcta by implementing a n:j«tion or modification before obtaimng formal allPfO"al otthi' bankl\lptcycoun. Aoconlmgly, the Na· tional Labor Relations Board (Board) may not <'flforu the agrel'fI"I<'flt by a char-goe 01 u nfair 13 bor practices;gai ASt tM debtor. A gmt deal 01 mlsmform,uion lias been sPl't'ad ,bout this d«ision. It is haIled alttrnauvely :as a godsend for struggling busi~or a direexamp/l" of "uni<)l1·busting"' by tt..! highest coun of t his count ry. However. a careful ex· amin~tion Ii the relt"anl statutes and prior caR law will rc'-eal(hat the Suo premeCoort"sdecislon was ntlther unpr«eOenled nor surprising to hankruptcy pt1IIC\l1lOrlt111.

Al>IIlicablc Bankruptcy Law: Tllu-U T. ~",mJ iu IWmbt:ro{IM HIIHl$rilk

fi""

ID.. of &11, /(idardWII, I/tmngll1H. 5/;<1,11· ""''' & Sht!If",!, I~A . lit /wid. (I fJ.A. fro ... DarlmfNlh Co//I'ge oM /I )./), /rom the UniVl'rsily uf Alabama, IIdlU Kn't"i ala T ",.1", i" llank"'/JIQ jrJr !wr ywrs olld is Ji'r:n:lary u/ tI", SI(JI~ flaT mil/f'/!o" Ik"'krwptry lAW.

eo",.

When a ~tltoon for rtorpni1.atioo is filed under Chapter II 01 tile Code. an automatIC Itay ISSues frl)m tile hank· ruptcy court to halt all actS or ",,,,",,,,,,,. ings tocollect. a_ or !"eCO\'''' a claim against the debtor arising before the petition wn filed. 11 U,S.C. Section

36:!(a). Thc purpo;>Se <If thc automatic stay is [Q gi,'c the dcbtQl" tcm~ary relief from the prcssull' of its creditors and an opPQrtunity to create and im· plement a reorgani7,3tion plan under which its unse<:url'd crl'ditors would It.'Cei'e mQl"t than by liquidation under Chapler 1. Reorgani~ation provides the opPQrtunity to try a variety of mea' surcs. ~uch as paying off open accOUnt debts (wer a period of several years. renegotiating theamount and frequency of mortgage payment s and rejecl ing unexpin.>d leaseol and execut<lry ron· tracts. Section 365 of lhe Code provide-s au· thorilj' and guidelines for the assumption or rejection of an executory con· tract or an unexpired lease by the trus· tee 01" Chapter II debtor·in·possession. Such action may be taken. subject to approval by the U.S. Bankruptcy Court, at any time bt'fOl"e theconfirmation of a plan of reofgani~.ation. 01" it may be in· cludl'd as a provision of the plan. II U.S.C. Sections36S(d)(2)and 1123(b)(2). If neither approach is taken by the debtor·in·[XlSSCSSion. the 01 her party to a contract 01" leaS/: may apply to the Court fOl" an order directing that the contract 01" lease be assumed or r~ted "'ilhin a reasonable period of time. See I'h'laddpilia <AI, ~.lJjppk. 312 U.S. 168 (19-11). The authority of bankruptC)" courts ovcreXCOltOl"Y contractsand unexpired leases has bet>n recOj!ni,-oo as far back as the Bankruptcy Act of 1898. Section 313(1) of that Act statl'dthat up;!!l the filing of a petition for rrorganiZ<ttion "the Court may ... permit the rejection of t he executory con t r3C1S of the debt or ..." II U .S.C. Section 713(I)(repealed). As used in thc old Bankruptcy Act. the terms "assumption" and '·rejecti<.!n" gained clear wOl"king definitions. As· sumpti<.!n of a contract or lease signifies that the dcbtor·in ·possession "has agret-d to perform the obligations thereunder, and that any breach of such oblig;l\ions will give rise to an allow· able claim against the estate having priori(y as an expense of administra· tion over the claims of unsecured gen. eral creditors. Rejection of an executory contract 01" unexpired l<-.!se constitutes an election ... to breach the contract or lease, and subjects the property of I he estatc to an allowablc claim for dam·

ages arising from such breach ," C<>i/u,r 0>1 fJaIlRn.plry. Section 68.02 (15th ed. 1981). See II U.S,C. Sect ions 365(g) and 502(g). Only within the lastliftcen j'ears has there bet>n a concerted effort by courts and commentators warri"c at a practi. cal definition of the term "cxecutor)' contract" for use with Section 36501" its predeces.<;()1", Section 313, It has been defined as "a contract tllat has not as j'eI bren fully complctl'd or performl'd .. , theoblig~tion 01 which relates to the future." Ultu;k SlAW /)icliolUJ1Y (5th ed , 1979) at 395. Howe"cr, Professor Vern Countryman of Ha rvard Law School proposes a beller definition for bank· rUJllCY purposes, that there must be currently unperformed material obli· gations by both the debtor and the non ' debtor parlj' to the contract , In ~ccord, the legislative hislQI"Y on Section 36.'; states that "performance remains due to some extent 'on both sides." Thus, a promissory note cannot qualify as an "executory contract" under Section365 boca usconc part j' has a lread y petfOl"mOO fully. Union advocates ha"e repeatedly argued that Congressdid not intend for Section 365 to apply to coIlecti"e bar· gainingagrrements. Unfortunately, the legislative history of Section 365 does not reveal Congress's true intent. Howe"er, three years prior to the 1978 enactment of the Code. the U.S. Court of Appeals for the Second Circuit de-cided in two fre<juent Iy cited cases that a coIlecti,'e bargainingagrecmcnt could be rejected as an executory contract under Section 3 13 <If the old Bank. ruptcy Act, PR..JecesSOl" to Section 365. The failure of Congress to take any action !o nunify thesedecisions wht'n it enacted the Code is signilicanl. See 5hopmlw's f.oea/ UII;lm o. Ket ';" 51..d l'rot/wci<, 1,,(.. 519 F.2d 698 (Zd Cir. 1975): ilrolloerh_t of H"i/u"lJY, Airline. (wd SIC(.m'.<hip Ckrks I'. REA Exprff-S. 523 F,2d 1&1 (2d Cir. 19(5) rerl, d~,,,rd 4Z3U.S.IOI7(1975). It is e<jually significant thai Con· gress did gi\'e special treatment to other types of contracts in the Code. Section 1161 protects a collecti,'c bar· gaining agreement that is subject tot he Railway Labor Act. The legislative his· t<lry of this section reflects that Con· gress intended to specifically exemJll

RLA collective bargaining contracts from the purview of Section 365. "The s ubject of railway labor is too delit:ate and has too long a history for this Code tou~ established relationships." 11K Rep. No. 595, 95th Cong., Is! Ses. 423 (1977). Other types of contractS specifi· cally excepted by Congress as e xecu· tory contracts are shopping centeT leases, II U.s.C. Section :J65(b)(3), and commodities futures contracts. II U.S,c. Sections 765 and 766. Applicab le Laoor Law: Employers who ignore collective bargaining agreements commit unfair labor practices and subject themselves to in"estigation by the Board. In effect. the Nationall.abor ReL,tions Board en· forces terms of a collective bargaining agreement by permitting unfair labor practices against parties whounilater· ally modify or terminate the agreement. C/ Nf.Hil v. Kal~:l69 U.S. T.l6 (1962).

Mid·term cancellation or modifica· tion of a coIl<'Ctive bargaining agTee' mcnt has been held by the Su premc Court to expressly violate the NLRA. See N I.Nil v. Illsura"re Age,,/s r"le,na. 1;0""/ UII'On. 361 U.S. 4n, 488 (1900): and 11. KI',,,le, Campony v. NLRIJ. 397 U.S , 99. lOS (1969). Section 8(d)of the NLRA, 29 U.S.C , Section 158(d), pr0vides that mid'Wrm modification or termination of a coll<'Ctive bargai ning agreement is prohibited unless the party: "'rinen noI'oce u~ (he to the ""'tr3(;t. ., (2) Off.rs to mffi and confer with the (I) Serves a

OIlier

~"y

OIlier ~"y ...; 13) NO\if>eo; (he F«kt"al Medial"'" ond C(InC'"t''''' Serv"", ...; (4) And rontin""" in full force and eftl'd without rcsoning to Slril«> or Iocko>ut alt the term , and roodi· lion, of lhe e"'~t,ng oontr.>CI for a period of sixty days aft.". such n0tice i.g;",n or uniH thee"poration d31e of such contrad , whlChe,'er

occurs (at.,. • .

Although other terms of an agreement are cnforced under Section 8(d). the Board has recently refused to apply the charge of unfair labor practices beyond express contractual Language. In Mi/uy,u/mo Spri"g, f)i";';OIl of fIli·

IWiJ Coil s,ritlg (qml"u,y. 26B NLKB N(I. 87 (1984). the Boord held Ihat be· cause a colk<:live bargainingagr~1 did IIQl eKpressly prohibil It.. transf("f of bargaining unit "''(Ifk. lhe employer was 001 reqUlrM moblain lhe umon·. consenl ~fore transferring it. Howe'o'('r . tile conlinuing duty to bargainduring lhe hfe 01 acontract has been sirictly ""forced since lhe early daysollbe NLRA. NI.NB v. Sm,th Ma· 1I1l/ac/Uri1l1J CtJm/Ja1lY. 306 U.S. 332 (1939~ TheC(lUrts have long held Lhal lbe UC1'plions 10 8(.1) do 001 rdH"o'e ~n employerol lhedulY to bargain. even il the SUbj('(IS were ncilherdiscusSl.'d nor embodied in any tmns aoo condilions of lhe contract bet"'een lhe parties. See NLNB ,. J«Ws MQU/IIC/Ilritlg (q",. /Jany. 196 F.2d 680 (2d CiT. 1952). and NI.NIt v. 1,,,," Oil CtJm/Ja1lY. 35:! U.S. 282 (1957). In 1181l. at 739. an em~'1 unilaleral chanaes during the lerm 0( the OJlltract were con· demned by lhe Supreme Court:

'''/1'''.

A m..,.1 to nqp:"'I~;n floC! .. 10

any IUbjocl ... hictl II ,,"Ilon s.ct .... 8(d).nd .boul whoch lhe un"", ...ek~ 10 IItK\lIl.tt. ,lololeJ 8(a) (S)

"'ell

lhoua:h t""em~ has.--y dosIrt 10 ~h ...._ ,,"h I'" un"'" upon an "''tf1lI] ooIlf!ctl\'e .... ..,UOl!oit and tamesll)' .nd In .11 goccl Iloth bargain~ 10 lhal end.

Allhough lhe Ft!deral C(lUrtl ha,'e de>.'elQped distinctions bel"'een man· datory and pcrmiSS;"e s ubjc<;ts lor bar· g;tining. subjects Ihal "vitally all('(I" cmplOYet!l 31'(' al"'3YS obIigalory subjfcts. See NLNB r, IJo"W·lI'" ......... 356 U.S. 342(1958): NI.NIJ u. A,,,,,rirll~ ,va· lil)1II)//nsIlrrmrn (q"'/XIllY. 343 U.S, 395 (1952). Mandatory 5ubjeo:IS indoo., "rales ol pay. wages. hours of employ· menl or 011,.".- conditions ol employ· ment."IJo'1/'·lVa.,,~r.lupro, at 360, The last obstacle to mWilying a col· I«ti .. e bargaining aarl;'ll'menl is estal). lishing ~heuist~ol an imtlllsse. After parties ha,'e properly ""gaged in "exhau$ti,·c good fait h negotiations "to reach "i~iLabie difftlen(es.~ an imjllil$!('il said touist. Compal'(' f~lzrr Trlet!iJw~. 1m:. ~. NI.N8. 317 F.2d 420 (6th Cir. 1962). When an imtJ'l sse oc· curs, the empi.o)'eT may make unilateral cha~ coosiSlenl with itsollers to lhe union. Compare NI.HB~. &./.. supm.

I)rcvious Decis ions: "New E n tity" The o ry In re;pOn~ 10 lhe aPPilrent coonlCl

between Stction 365 of the Code ar.d ~Iion 8(d) of the NLRA. Federal a~ pellalecoorls during the 197(I"e\'Qiwd "Ihe 1If"o1,' ""IllY" CllIICePI. The U.S. Court of Aweals for the 5fo:ond Circuit was 1M finll toaOllue thai a Chapler 11 debtor is 1101 lhe same legal entily as the pre-petiuon busines but rail,.".- "3 newtntity ... wilh its own righlS and dul ies subjecl \0 the supervision ol I he Bankrup1cy Court." ShD(J"w~ 's Vxal U.io~ p. Kntill SI«i PrfId"cls, IN.. :'19 F.2d fB8(2d Cif. 1975). The new ""tily was 001 a party I(lihe coIlecti''e bar' gai ning ~ment: thus. it is not bour.d by the requiremenls ol Stction 8(d) 01 lhe NLRA. Thus. il is lret toseek rt'jeco lion of lhe agreement by lhe bank· rup1cy court under Section 365 of the Code. This conctp1 pllICI'd the debtor· in·possession in lhe position ola suc< assorem~. ,,'110 is reqUlrM to_ gotiale with the collective bargaining unit INI is not bound by the basie lerms oIlheprior agreemtflt to which il was 001.

l<lrady ,n ! he hand, 0(1"" com piny', ~OCled ~»Io)__ . T~ ,""ply niSI 100 many other «iuclal ",Ier· esll, ,,,,*, of other ~pIoy..... crtdi. 10r1. and ""'" .hoIdo .... lhe ~0Cl "'" of ",hlCh ,,"...'.. odes the ."mul", for lilt J.nkruptcy 10"... lor !h" Cwn to rondude Ih.1 Il>e roIlec"'·~ bar·

n' w.,

pin;re .... ..,".. mtanllohold a IITllreX-hoId poIi''''''' IOUlUy 1m· mUne I....... lilt fIvt;bo~11 pt'O\'('d lor Section 3(6. The prOtection of lhe tmpioyet!l' inler· ellS. U lhe Court ~nttd out.liett 001

in deference to Section 8(d) 01 lhe NLRA. as urged by lbe unions. but in the leSI applied by Ihe bankrup1cy C(lUrt in deciding whell,.".- to allow rejection 01 lbe rollecti"e I.rorgaining agh'i!menl. T he Hcj...:l ion Test

A debtor need only ~nt t\'idtnce ol burdensomeness 10 Il'jfct an ordi nary commercial contracl. but both courts aoo comrtW'nlalOl"S ha~e agreed for years th:ollhis "business judgment" L"'It is in!;Ulftcienl 10 protect tlot rights ol emplO)'ees under a coIleeti .. e bar· gaining agreemenl, Ilo"'ever. the lor·

""ny.

More 'fOeIlt decisions have attemp. ted to limit or do away with Ihe "new entily" theory. In 3 1976 ca~. lhe Seo cond Circuit reslricttd the lheo!y', IJ)' plical;';" tocolll'cti"" bargaining;wtemenls. INt this did li llie 10 curt lbe weakness of this legal liet;';". As p~ lestiOI' Countryman poinl5 OUI. il is un· acceptable "thaI rights iKXXJId«I to tf\1. pIoyees pursuant to a collective bar· gai ning agreemen t executtd pursuant 10 ar.d pn.>IfCltd by Feder:a.llabor Law can be clestTO)·td by lhe (2SUa1 applica· tion ol a theory devised and appli«l lIOIely lor the tNT]lOSe ol deslroying tttoo. rights.":'1 Am, Bankr. W. 3Cr.!. In April 1983. lhe E\e>'('Ilth Circuil "'as lhe first 10 rtiect lhe "1If"o1,' entity" Ihrory in la"or 0( theobviousCongre.· sional intem for oonkrup1cy La,,' to OVeTTUie labor law inCl'rtain siluations.

IN ".Broda Milw.- fYriglrI SysUNIS,/w. 702 F2d 890, (1]l h Cir. 1983). Judge T Ullle staled at page897 (or Ihe Cou rt: Yo'~ do not """'mlP"l!~ I hal Coogr-eM ;n!tm<\td lhe uillmate latrol aa:orpo. TIll"'" undtr Chapter II 10 rtSl !!O

We do more than prinlthe lawwe pulil into perspective... ... both In our law

a nd our

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mulatlon at an ~puble test for that situation has been di fficult. In K~'1" 51«( IMpnI. the Seo:ond Cirolit decbrtd that a bankruptcy coon may aPllfU"~ the ~ion at rmp!oymmt contracts only aher carefulliCT\lliny and balanc· ing lhe «!ULtItS on both s KIes. In a (3l;O! de6d('d only a few months late.-. the sa~ coon added the additional requirement that the bankruplC)' coun must find that the burdensomecolloc· ti,'c bargaining agreement would OIh· erwiS(! defeat effQns to sa,'e the failing company from collapse. Brolherhood 0/ Roil~VlY.

AirUnr. ami SI61'''ship Cluk.<

Rt:A I-:XPITM. 523 F.2d 1&1 (211 Cir. 1975 ). ttrl. dr"itd 423 U.S. 1017 (1975). Apparently the Coun did nO! realUe that thl l striel r('Cjuircment makes il almotU impossIble for a bankruptcy coun to balance the Inlerests at em~, creditors, s harthoklers and ",her paniH of interest . In ils decision In f" rr Bildisco. 682 F.2d 12. arlopon/til 103 S. Ct. 784 (3d Ci r. 1982), the Third Cirolit no(ed the inconsistent require~nt$ of these !)eo wnd Cir~uil decisions and re]ec-loo the additional test of REA I-~PITM for two reasons. First. theCOllrts no(ed that it may be impouible to predict the soc· ctSS of a rmrganilation until ven'late in the ~inp. Second. the COIln obse.-nd that the REA upmsrequireIllffit ~unduly ualts JX'fP!"tuation at theool~""t bargainlng~t <l"er lhe- m(lf"t pragmalic consideration of whelher thermpioyffs will continue to ha,"t jobsat al1." 'd. at 80. This position was also iW:Iopted by the Eleventh Cir· euit in fJr<rdD ~filltr, , ..pi'll, as the only v~w cons istcm wIth lhe Federal bank· rupley pOliciel underlying the Code. Th e /Ji/(JiscrJ Iftci s ion: [n April [900, Bildisl:o and Bildis<:o, a New Jtrwy pannership whieh distribuled building supplies. filed a vol· untary pel ition for I'f'OrlCIlniJ:at ion under Chapter II and was aUlhorized by Itw bankruplcy roun 10allltinueoperating its busineM u a dtbux··in·pIlf<SesSion. Wt..;,n the pelill(lll ",'as filed. almost hall d ttw debtor", employees "''Cre rtpresenled by t oeal 4M. [nternational Brotherhood of Teamsters. Chauf· feur"ts , Warehousemen & lIelpers of America. with whom Ihe debtor had

negut ialoo a coIloct iv~ bargaining agree~nt thai ""ould upirt in April

1982.

Slnct january 1980. the debtor had failed 10 med !Ie\'eral d its obligations under lilt agI"ttIIlent. including Itw paymmt atlwallh and pension benefils and the remittance to Itw union of dues collected, and in May 1980. ttwddltor rdu5t'd 10 pay wage iocr"tasescalled for in the agrt'Cfllen1. Instead. lhe debtor requested and rtOOved permission from the bankrupley COIln to ~ ttwagreemen\. and the union was allowed Ihirty day~ in which 10 file a claim for dam· ages ~temming from lhe re]ec-tion . The U.S. Districl Coun upheld the order aPlJl'O"ing rejection. In the i ummer at 1980. the union filed unfair labor prxIiceeharges with lhe Bocttrd. ""hlCh found thaI theddltor had violated Sectionl8(a) (5) and 8(1)(1) at lhe NLIIA by unilaterally changing the 1tm15 of lilt coIlecli"e bargaining ~~nt and by refusing 10 n.egotiate with t he union. The Board ordere:Ilhe debtor toma!te lhe pension and health conlribulions and 10 remit dues to the umon. Con$Ol idat ing Ihe union's appea II rom the Di s lrict Court's order and the Board·s petilion for enf~ment of its order. lhe Third Circuit held that a col· lecti"~ bargaining agI"ttIIlent is an "ex· «lIIO!"}' alIltrat:I " 5Ubj«1 10 ~ion by a debtor·in·powssion under Section 365(1) at the Code; Ihat the debto:r's ~ion at the agrftfDeIlt "'"as nO! qualifttd by S«tion 8(d) of tt..;, NLRA; and thaI toobtatn t"tjection a debtor·in· p:l6SeSSion must show lhat lhe agree~nt burdens the estate and thaI It... equill(!!l balance in favor of rejection. The Court rcfusOO locnforce the lloartfs order. holding Ihat under the Code a debtor·in·~ion is a "'new enlily"' no( bound by lhe deblor's prj<fr coIlec· tive bargaining agrft1TIent. Both the union and the Board appealed. On February 22, 1984. the Supr"tme Coon affirmed thedtrision of the Third Cirt:Ult. j us la Rehnquis! deli"erM an ollonion In ""hieh tt... Coun was un· animoos on Pans [ and II. justice Brennan filed an opinion which con· curred on Pans I and II and dissenloo on !'an m , lit was join('d in his dissenl by juslices Whi te. Marshall and Blackmun. In Ihe unanimous portion of t hedeci·

sion, the Supr"tme Court found that tilt language "CUCUlory alIllract" in Sec· tion 365 includes collective bargaining agrft1TIents and that the lest for rejec. lion should be whether theddltor can show lhal the Jtgrttmtnt burdens the tstal~ and thaI the«!uilits are in f3\"OI" of nojection. The Court SIlled: The lIandlonl adopted by t he Cour! " AP\IMIII for tlte S«ond Circuit in REA 1:X__ i. fundamentall)' at Wdl w;t~ lhe palM of flexibility and oquity buill into Chapter II We aarl!e with the Cour! of Appeal$ below. and wilh lhe Court" Appul. for the EIe.",th C.rcuil in a ~latod a5c. Itrad. ·Milkr ... that the Bank· ruplqCOUr! .......1d prrmit ~ion " . cdlKtl~ barplning .... ..,".,nt under S":UOn 3&5(.) " the Bank· ruptcy Code " tlw debtor eon $hcrw thai the cdlKti_t ba.-p.n.ng aarmonl bul'dtnl the eatale •• nd that af· ter eot"tluIICr'UU"I'. llot oquitiett ..... al"lCe in fa_or of ~Irc the labor _H'tteI. The I Llndard ... hid> ,... think Conrrcu Inlcndod is. hiehtr one than that of the "'business judgmenl" rult. but a les$trooc than thai t mboditd in the HJ-."A f:xft>.... opinioo

The Supr"tme Court d~lared that the poIidesat lilt NLRA are adequately sernd if the bankruplCY judge find! thaI r~!IOOabie dloru to negotiate a voluntary modificalion ha,"t been made and all' not hkely to produce a prompl and !lahsfactory rf$ult. The bankruplcy coon must lhendet .... mi~that thepol · icy at Chapter I [ would be SrT"o-fci by nojection cI. the coIle=ti"e bargaining contnICt. In balancing lhe inlerests of l he debtor. the crfciitors and the em· ployees. the Court "musl consider the likelihood and consequences of liquida· Iion for lhe debtor absent t"tjection. lhe reduct'd valut of Iht er«lit(lrS ' claims Ihal would follow from affinnanceand lhe hardship lhat would impose on them. and tho: impact of rejection upon tlltem~.·'

[n the S«Ond portion at the Rehn· quist opinion. a fi,'f: member majority of tilt Coun held that a debtor·in· posseSSion does flOC commit an unfair labor pQctice when it ~$ or modi· fies a collective barpining agrnemtnl before 50ch aclion ill approved by the bankrupley roun. The Court pointed 10 the diffcrCllCt between a Chapler II reorgani~ation. in which thedebtor has

until plan coofirmation toao:epl or reject an ex«:utoryrontract. and a Chap.. ter 7 hquldation. in which the tnostee hu only 51~ty days after the petition i~ filed in which to make such a d«ision. JustICe RehnquI.t wrote: "This differerIC(' between the two Iypes d proceed. ings reflects the cooside~ judgmenl of CongrtSll Ihat a debtor·in-possession ~kitlJltoTeorganize shoold begranled more latitude in deciding whelheT 10 ~ a ronll'l'll:t than should a t",Slft In liquidatlOO." The Court also noted that airlC(' the claim d <bmi1j1e5 .nllng out of ~ion of a rnlle<.1iV(' barpln· ing ~nl must be made thr'OUl,lh the banknoplcy OJUrt. the Board is necessarily precluded fronl enforcing the 3gR'i:mcnt by filing ~n unfair I~bor I"'act~ charge againsllhe debtor. The ma;OOly opinion reasoned that from I he fi lingol a bankruptcy petition unlil formal ~aOOl'. the roIlC'cti,~ bar· gaining agreement is not an enforceable COOlra.:t wilhin the mo.nmlj: 01 Sed ion 8(d). Thus. the debtor ne<d not comply with Section 8(d) or bargain 10 Impa~ undcr Sec1ion 8(aX$) befort' O('(:kit\JI lhe bankrupt')' OJUrt'~ per. miS!lion to reject the agreement. In the majority opinion. Jus tice llrennan approved the Court', repudia· tion ot tilt: ilEA FJprm ~Iion requirement and the "new mtity"legal fiction bul argued that permmllll! a debtor to alter a roI1ecti,~ bargaIning ~t prior to OJUrt review -.. rioosly undermines the goals of the NI.NA. JIe found no I<:g31 basi s for the majority conclusion that the coIl('Cliv. bargaining agreement is not an en· forceable COOtract within I he meaning of Section 8(d). stating on pages II and 12: II' the debtor·I ...!"' "on MSumtl lhe _ tlYt .lhal assumphOn rNlt1 back '0 the ti ..... lhatthe hltnkruptcy pttitlOO ..... filed ... If the_tlYtlS e,·",t ually rtjtcted. rtir:-ctiol1_'ti. lut.. a brrach effect"·. imnl<'(fialtly btfor. 1M dat. 01 lhe filing 01 the lI<1uiol1 ... Thtrrl",.... whethrr the _tran io"'-""<'plodorrtj«tod. il ,,',11 ,u()plO1 a cia''''t'''', a ...... tIIIt oIthe dtbtor·. obIoea.io)n$ ,n , .... pool prll tlOO prriod. In addItion 10 lhe int ..... t of Congress as he saw it in the relevant bankruplcy and labor statutes. JUSllCe Brennan bas«! his conclusion on Iwo question.

able considerations. The first is the pOsilion of the Hoard that Sec1ion 8(d) should """lI,n app/oble afler a peti· tion is filed. whictt he foundcompdling btcau$e of the Hoard's "special undlof"· standing of' t he acl ual illt!! d indU'1 ria I relations.' .. /d. at 15. The second coosKkratioo isthe"threattolabor~" which Brennan saw in application of the majority opinion. In a foomtlt~. Brennan cited with coosiderable alarm a ne..·spaper article describing the strikes which folJov,'tC! unilateral wag.' rfliuclion$ by Chapter II deblors Con· tinental Airltlle$ and Wilson Foods COI'Jllf3tion. Brennan clo&ed his opinion with the comment "I do not Ihink th31 the proSpectS for a .uccessful reorganiz.ation will be seriously impaired by holding thai Stxlion 8(d) continues to apply." Id. at 20. Conclu s ion: In I he i.lildr'.!:rod/'(,sion. lhe Supreme Court gal'. i\5 Ipproo,'al 10 the most sensible portions 01 recent appellate court deci~ions in this area. Whether this rational and practical approach

will be alJov,·oo to stand is uocertain. h(N,.t:'o'er. as Congress 15 alrt'ady bctng Iobbtoed he,... ily by union reprtSC1111' tl''et 10 pass mnedialltgtslation. Con· gresman ~odino 01 Nev.' Jersey has prormiK'd to introcJUC(: a boll which would !let a more stricl s tandard for rejl'Cliol1 than that heretofore applied by any court. In the rneanlime. Federal courts will coosider many rebted issues. such all whether lilt N""';s·1...:ot Guardia Act prevenlS a bankruptcy OJUrt from en· jot"'11& mt plol'f'I'S f rt,II1l st rikl 011: ag:a Inst a Chapter II debtor. Cf. Mill," of Cm.'t'I",d ASI«ialn. IIfC.. 713 F.2d 211 (6Ih CiT. 1963)(dissolvinga bankruplcy court injunction) and wh~t right. if any. a union has as the collective har· gainitIJI represen tali,'t of I he enl pIoyees 10 participate as a party·in·intcrell in the bankruptcy en'! at the dl-btor· mtployer. CI b. ,., Alwi, Air/inn, 11K.. 11K No. 82·53399(;. Memorandum Optn. 100 (doenymg tilt application of lilt: Air

Line P,lots Association to join the committee of unsecuroo creditors). Undoubtedly. there is much mort to conle. 0

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o Bankruptcy ~ings o M ergers or a«I\.Ilsltions o Buy·sell agreement s o OIssidentstockholder

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BecaJse OUr I!:<leOOf:d lerml plan gM;ll'1" more flIJ.d\.lling ~, th.ln lily OIher. We begin by "sins JOO. balance to determine montltly payments (5e't ctla,t~ ~ptndin~ on wballIIaI ba~ is, )IOU un i&d from S999 10 $I,9991n new p!Jrtllasu ''';1Il001 raising)'lll' ..... thly Plll""entl by I dime. And th ... ~ M int~rUI. no Q'1)inI t"'r~1 ~r. 'tJo can buikl prole!.$ionaI Ubr~ wl1h fewer in· cruses in )OU • .....thly payments. And pion the ooming ~r~ bOOR"' with I dure, idel 01 whal.l""" I"'J'ID"n[. will be. For ffiOfe details, chjllbe CO\IpGn lDd serod illO us. I.blIhew Bender. Count on UI to give )0\1 il legal edge. And. financial Of'e. 100.

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IUTTIIlWIOOUI'S EXTEa~ TtfIMS Par.1T I'tM

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ABA London meeling. July 14 ·20. 1985

<Bar~riefs

Survey results say yea In March the entire membershipQI the bar was sUl"VI!ytd in order \0 learn the oonseRSuS of Alabama 3ltorr>eys ronoeming mandatory conlinuirlJ( le-

gal education. Sixty.three percenl of those Sur· veyed responded 10 the mail ballot wilh 7:'.9%(3.456)approving MCLE and 24.1% (l.101)disappmving of the mandalory requirement set by the Alabama Supreme Coun in 1981.

In 1980, previous 10 the COUrt'S mandale. al\Olhcr membership potl was taken wilh 59'1r, of those TfSlJ011d· ina favoring lhe implementation of the JII'llPDS('d mandatory continuing legal education program.

opened a law office In ~tomgomery In 1963 after comple!inll hi, term as go,-crnor. PaUen;(ln. who has wanted to serVe On the appellate bench J number of years. says his appomt· men! to the oourt is "3 cu lmination of a lile's ambition," Patterson olficiall;' became iu<4:c the Tuesday following the appoint · ment after t~kmg an ooth of officc bef~ Alabama Supreme Court Chief Justice CC. "IW" Torbert. The public investiture ceremon;' wa< on ,\Ionday. I\pril 9. in the Sl,prcme Court Room.

Texas 75379_

Budget cut may affect se rvices 10 lay ...ers

Fonner governor appoinled 10 appeals cOW'(

On Monday. April 2. 1984, former Gm'emor John ~I. Pallerson was appointed \0 the Alabilma Court of Criminal Appeals by G,wernor G/!Orgt: Wallal:e. The appoimed came after

Hubert Taylor. Wallare's brother·inlaw who had serw:d (Ill the <:OUr! JUSt 0'I'l'r a year. anllOUnoed

his

resignation.

Pallerson. a 1949 grad\Lilte of tilt: Univm!ily 01 Alabama School of law.

'00

The American Bar Association will .hartly be sending out the registration form" for the 1985 Annual .'Ieet· ing in London, Thi. ext~nded me<'ting will follow the stal""ide m<"'ting m Washm!(1Orl. D.C. which <:Ofl\-en"" July ·lth. The 1\laroma State Bar w,1I nOt ha,-e a charter flight to th,s meeting. Trawl arrangement' have be;>n con· tract('d to Am(.'1'ican Express Tra"e1 Services by the ABA. They will han· die the movcmcl1l of all person6 desir· ing w attend the 1\8,\ m~tinJ! and it is strongly IlICOmmend~'<ll h31 you make ,'our ~rrangemcnt; through the ABA travel ,;c....'iCC>; pll:l!ITam due to the rooming requtrements attendant theretoancl lhe facI that loogmg m the more desirable hutch i. blocked through the ABA. h is anticipated that registr:l11ons will be hea"j' as a lway" and ;'00 should nOt delay in r,:gis\Cring. It i; much cas,er to cancel than 11 is to make arran~ments later. You should direct any mqui!'ie- r(.gaming tra,-d to 300 from the London m~"'li,tg to Aml'1'ican Express Trd"cll?dat<1:l Services, 1'.0. Box 79Q.t59, Dallas.

~Ian;' ,\Iabama anomeys mal' have notict'd a recent curtailment til the ,;ervices of the Corporate Di"i'lOn of the Secretary 01 State's Officc _Acoordinl! to Secretary of State Don Sic· gelman, the cut 111 seroiees ,s due to inadequate funding which would a,· Sure their ~'O/lunuauon, Siegelman says the Secretar), of State's OUice has been underfunded since the adoption of the Bu_iness COrp:lrations l\cl. They are making an effort to oomputerire name reservations. regtSll'rcd agents and other mfonnation essemialtol\labama allorneys.

,\merican Exp!'t$:; ha~ made trawl arrangements commencing from a wid(, range of gat~war cities. Allanta i. onc of those cities. There are al!;O limited accommodations between :-<cw York and Southampton on the ()u"", Eliwbrlh If. You ma)' abo con· tact American Expres.~ by <;alling the tollirre number which is

\ ·8IX).527.(1297. The Stale Bar has arrang<1:l an IN· TRA\' Ad,·cnture which will include tGIII'!; of Ireland and Scotland wilh the concluding IGllr-day portion of thc tour m London during the ABA moxting. These plans rn'gate your ha"'ng to do other than regi,\cr for the AliA moxung and purcha$C tickets 10 ~uch AII,\ events as ;'ou desire 5i"", travel

and lodging an' Uldud,~1 in the " TK,\ \' progr.lnl The co>t "ill hI' ~I~ proximately S2AOO po.'f PC""'" for the two""",ktrip

"Iedical examiol' nI adopt mle .. for p.c.·" T he State &ani of ~1,..hCltl f.u miroe"1>. al it' _" arrh 21. 19ttllt\t'et ing, adopted final roll-- for 1Il"0l'.... '1(lIla1 CIYpOrntlOCls mrorl'ora1t'd by ph)-,inan, under the 1l'",>«1 Alabama I'rofl.'<~lOI1al Corporat",n .o\ct, whICh became "m,'ctl\'t' Januar)' I. 198-1 T he mil'" ''''lUIrl'' that pro(,... ~ional corp:)" rations crealc~1 bji Im)·,icJans and (l6. tcopaths lile oopil" of nl((lrporation documents and non'(lnancial portl<lns of annual reports with the State Board of ~1edir.a1 Exammel';_ i\tlomeys an,1other l)('n;on~ inti'restOOIll obtaining COI"C!> of th~ rule!< should addrt'SS n'tluests to EX<'(ull"e D,rector. State I\o;,rd of ~trdical h a"'1I1(,..".1'.0.1I(>< w.. ~1,a'tW)l11l'r)'. Alabama 3610'2 (~),j-l6l 1 1161

)'00 """d th~ initial dues in the am<lUnt of. $15, T~ dues will!J!' u<.('(\ to publish the ""wstelter and to obIain ,peaker.; i" the FamIly Law area. Selld )'ourchecks in the amount of S 15 payalJlco to the Famil)' La,,· Sec· lion, 1'0 Box 2141, Blmllngham. Alabama 3.'>20121 ~ 1_ The first off,cer.; of the SK-lion are ~m !l1I1TlIlIl'. Jr_. 01 8innilllJham. chairman; Vanl.etla Penn l)u"UII <i \Inntl/Offitr)'. ,.~ president; Jrrrilet !iutherlin of lIunh,-ilie. secrNar)-: and '-tcve Arnold 01 Blnningham. tll'\l urtr,

.. fP' I--= ri~ - nt Ii • 0

Ma1andm mate rialll available Comm"nt~

from "best St:minar r have e,'er allcnded'" to "super, could have 'Pl'nt the whole day" to "I wish all CI.E wen: thi~ intl'Tl'Sling" fol Io ..... ed l.orena Malandro's Ps]rlwlotfy '" /I Trial seminar pre;ented at the ~hdyear Conknmn' II( the Alabama State Har, \laL100ro, who has conducted cxtl'llSi,·c rt"i'arcn into Ihe ';sual detail~ ",Ilir;h infllJ('l\re jurors and that ma,' ulilmately affect the OUlcome oJ tnal,. ",hiSl'd 1a..... }'t'Tli on how they and t h"ir clio:nts and ",itne.es can make fa\'Ol'1IbIe impression' in the ~c .. "I,.'<:lion o n fa mil} Ia .. courtrwm. The Alabama Stale lI"r C"mmllt,.., ~lat~"al\ prmted in connection on famIly taw ha~dctemllll('(/ lhe "'tn Ihi' """,mar, meluding topia 01\ need for a new s.."'tlOCl on Famll}' hngul'tic t"'.. hniq ..... (or pen<uasion, l.a .... aoo tilt I..,w oJl:k>me.IIC !IdOl kill(-sir; and vt'rballx-'ha.joo; indicat tim,,- Th.: oomml!t~ ha' aOOptt'(/ b~'- Ins:: emotion or "tualiol\alanxiet)', Ia.... ~. ha' ek<ct,'(/ oJflCel';, ha, pcuu· and moti'-aullJ': jurors through openoned the Boord of Kar Comml,-,iolkl'; tat~ment~. al\' a'";Iilablt' through fOl" St'("lion ,lalU,. and ha~ mlI(\(-' the ."Jabama SUItt' Bar_ Send }wr plans for a pn.:II(I"3m at the .\labama dl<'(k for $,';.00 mad~ out w the Alabama State Bar 1(1 1',0, Box 671. State liar Annual \I<'tuns;: III Jul)'. The liN edilion "I a rt1(IJlarl}' issuOO \lonlWlffi<'ry, Alabama 36101. Tioe newsletter .... ,11 be forthulmlnjt 1'syc/wWto Q[ /I T>i4/- Bdt4irior "hortly and the commilleo!" now!;(>- S' ...1rIlin I'" &Jt/xJrl, P" ...... /1M f?rliclling charter mMTt!J!'r~. SlI4$ifUf booIr.lt1 ....·ill only be a,.. ilable The Famil}' I.AW Committ~ inv1\Mo while the tII"",,1 w pply Jasb, so onin'liOOIl, ~"" to jo," the SectIon and aok that

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tIM: fusibility d a mandatory intern· ship projp'lIm for law school graduates. It has VOIed unanimously to suP\lOl"t the Ba"$ dfcision to limit admission'S 10 graduates of accredited Law schools.

Committee Work to Continue

he clorie 01 tile

mittee

)'CaT

I~ com·

is approaching.

Continuity hilS been assured by limiting membershipoo committ~ lot haie whoupressed a desirelosen-e

lhe l:Iar in j)/Inicular areas <J <;Or>Cem. $t~red lemlS for committee 1TIffil· hers. and cxcelW!nt record·keeping by commiUCle !!eCrtlarie$. PI'6~nl-e1ec1

Walter R. Byars has

already btgun 10 build on the founda· lion laid by President tlairscOll. A

oommillee prelem-aque5lionna~"'"as !ief11 10 all members lut month. In-

dudtd

Wt1't

quesuom lIOIiciling mem·

bers' opinions on !IftV~ provided by tile ~rand str'\'ices rwdcd. Committee appointments f~ 1984-85 will be made Ihis month and committee' members will be in"iled 10 the "kickoW break· iastlo be held 00 Friday,)uly IJ,during

lite Har', annual meeting.

Focu. on the Profession The mults 01 the dforts at the Commiu ce On the 19&1 Midyea r Mcc linJl "'en: obvious toanyone who allfflded the "-ling March g.!O in

Montg<:mcfY. 1)ex1H" Iklbbs 01 Mootgomery st",,",, " chairman. ~rving wilh him 1.'t1't Cliff lleard. Keith NU'"-

man. Victor l'rice, andJen>me Smith of MOIllpntr)'. Eddie Rayman 01 Tusk~ gt't.and!lob Meadowsol Auburn. Reg· gie li amner served u staff liaison to therommill<,(!.

The 1984 AnmmlMeet ingCom. 'niHee tS hard al ""OI"k on plans for lhe Bar"8galhenngat the Ri"erview Plau in Mobilt.July 12·14. T he Yoong Law· yers Section will present a very practi· cal CI.E seminar on July 12 and will $porISOI" a party aboard the USS Ala· ba",,, that night. l.a st years successful "kickoff' breakfast forcommillees will berepeatedon Friday. Thegeneral sessiorl$ will focus on tax shehm. for Law· Y(TS and Il"ImlOI")' improvement. There "'iIl bea ""(II"ksl\opon JlRpaid legal ser· ,·ice. the inaugural pre5mtations cI lhe FamIly Law Commill« and the new BankruJ)lCY and Commercial Law SKtion as well as the usual informa· Ih'e mee1ings of 01 her sections. In lieu of lhe t",dilional Friday night dinner and !lanoe. partICipants will be treated toa nightcap party featuring an array of desstrl S and after dinner drinks and Ihe music of Mac Frampton. Sat· urday will ~n with a breakfast for all PIIrticipanlS. folluwed by lhe presen· latlOl1 of awards. lhe pnsiden(s ad· drtSll. a speaker of national prom;. nena'. and the annual business meet· ing. Bar members should rta"ive the convV'\lon program wnhin a month. The Co",miuCil on l..egal Educa· lion lind Adn,i",,;on 10 Ihe Bar is considering su~ing a representative sample of the Ba r, seeking opinions rq;arding law IIChool rourres and cur· ricula. The commille.e is also st udying

The Tas k t·oree 10 E" aJuale the l.aw)·e r Upl"";Oll recmlly tu,.."oo ns alltntion to Law school applications and admiuions pallems. J ntet"\·ievo~ with thedeansd admission~d lhe two accl"\'diled law IIChools completed the tlsk fora,. informatio" gathering sessions and formal ob$erva!ions and ~ commendation s will be presented to the Iloard at ill May meeting. The Tas k Fo ree on Peer Re\iew isgathering information from (ri:r Bar comm;uees that havt dealt " 'ith ques· tions cI COf\hnutRi legitl education. spec:iahution. advertising, and other mallen tliat rtLat~ to the pet!"" review ,:>we. It i$ also making inquiries to Other bars and 10 the medical and ",. coonline communities reganling their practice and procedu~. Aroording to Chairman 1..11. Feld. the task force's emphasi s will be 011 developing a pro. gram that is both vol untary andobjec· tive. The Ta s k Force on the Es ta ... • lishme nt uf a Ut igat;on S«:lion rtcently rtporled liS opinion IIiat soch a S«tion should be formed topw.·idean intmli!lClphnary forum for tlw trial bar as a whole. Efforts to form a section are being ~. Intem;ted perwns should contact Chairman t.. Tennent Le.e at P.O. Bo~ 68, l1untsvillt. Alabama.

3580-1. l2ffi) 533·9025. Chairman Richard Cannody and mt'mbers of the Ilankrul'(C )' Lo w Cu,," uille e werecom"",nded by Pn.-si· dent l1airslOll as their work culm in<ltcd in the formation 01 the Bankroplcy and Commercial 1.aw Section of the Ala· bama State Bar on Marrh 8. 19M. T he section will hold iLs org<tniulional metunaduring the annual meeting of the Alabama State Bar. July 12·14 in MobIlt. l'enons interestC'd in becoming charter members d the SK"Iion should contact Robert 1'. Reynolds. P.O. Box 2-121. Tuscaloosa. Alabama. 3.5403. (205) 345-6789. Initial dues are $15, PIIyable to the section. Members d the l.... gi ~lath· e Ua; · s o n Co",mitt ee art working toobtain

fa\"(lr.Ibie legislati,~ aclion 00 bills in· troduced 00 beNlf 01 the Alabama Statt Bar. One bill remo,·t!l the t .....o )'ear license fet exemption granted to ne ..... rntmbers oItht Bar. the steor>d raiSts tht annual license tax from 5100 to 51SO annually. The bills art rwded because it ~5 bttn §e>.t!l )'ftIn l ince license fees ,'..ere raised and. despite ef rICitn t operating proctdu res. infl. tion has caught up ..... ,Ih the organization. For moll' information. see 45 AI.o ....

'w'..

I",,,,,"

74 (1984).

The Tas k Force to Study Politi ca l Action Corn n,iutes hal; add I15SI'd the legality of St ate ba r PAC's. the JCope of permissible activities. the des irabilityof an Alabama State 8ar PAC and po&Sibit organization. functioning. and g(I'''em3~ of s uch a commiufC. Members ha,'", revie .....1!d the structure and functioning of lawyer political ac· tion OJI11milleea in Florida. Michigan. Wnhingtoo. South Dakota, llIillOi$. Ohio and Minneeota. Tt.. task force " 'iII rtlX'" to the Roan! of Bar Com· missioners this month.

the discipline and di$barmenl 01 law. )~ he adoptfd. La~tly. the mmmillee proposed a new pr~ure for the ap. Jl(lintment of lawyen tOrtprescnt indio gent plaintiffs in civil righllcase5.

Public Service The ," a OOma Lawy e r Referra l Servicoe ll.oa rd o f T r u s t ee .. is seek· ing to iocrease the number of attorney. participating in the service. Education 01 the Bar as to the ad'"lInt¥5of par· ticipation is a high priority. Allention is also bting focused on the t ..... tlt·e coun· ties that ha.·c 1"1(1 allorneys participating in the S(!rvice. For additiona l infor' mation. SC!e 45 Al.obtmw IAwy6 85

(I984)oreall l.ft>0.392·5660.

One of the p i s set by the Ta~k Force On C;( ;:le n s h ;l) Educ at io n is to assist the Alabama Judicial College in reins tituting ils law·related I!dUCll' tion proJ!ram for secondary school

Members 01 the Fe d ... ....1J udiciary Lia ison Cltn m ill ee have met wilh federal judg<:$ across the state. In il5 preliminary report to the &ran:! 01 Bar CommissioneB. the commillct reoom· mended that I~I judges suppOrt. the State- Fedmtl Judicial Cooncil and that the Cooncil be in"itl!d to meet during the ann ua l mcttingof the State B.ar. [t further r~Jl'Itnded that the admis· s ion procI!dureoithe Northern District be adoptl!d by aU thrte federal district courts. that a uniform procI!dure for ad mission pro Me via be adoptfd, and tha t a u niform met hod of dea ling with

The T a s k Fo rce to E"alua te the PI"OIIOSed Const it ution submitl«l its report to the lIoan! of Bar Commissioners in October 19B3. President l1airston noently reque5t«l that t .... task force contin"" ils service. in vir,,' 01 present ~slati"f tffons at cons titutional

"'~

T he Com m ill ce u n Le ga l Se rvi. CCII for the ~; ldc t1 y has formed s ubcommil\ees on the legal needs oflhe eldtriy. I!ducation. projects in other $Iates. legis lalion. l~ison with other professions. and final'lCl'S. Me-mben of th~ s ubcommi ttees are in the processol de'lcLoping plans of action on t .... par· ticular topics. 0

W E WANT YOU TO JOIN OU R SPEAKERS B U REAUl

Hench - Bar ReLation s Representatives of the "-e d e n .l llan k ruptcy Cou rta U a ison Com· n , ilt Co.' ha,~ mel with !DOt!;t 01 the judgeson the bankruptcy bench in Ala' bama. gathering information on how the committ"" might help both the bench and lhe bar. T hteommillee hal also met wilh Arthur Briskman. coun· sel to the &natt commillee charged with resolving the plight of U.S. Bank· ruptcy Coort l. This oommillct will continue its ....ork within the structure 01 the new 8ankruptcy and Commer· cial La .... Section.

t~ Ao.:!Ordi,.to Chairman Larry B. Childs. the ta!lll. force beliet'eli that teachers are a J!Tt'It resource for allIn· teracting an unprect'dentl!d lack of un· dentanding about the system of law and J!O"emment in this allIntry.

" intl/fcsted

!oI/f\Iing as a tnetnbe.-

1000" :"'9 loon and rt Mont~ry.

SPEAKER'S BUREAU APPUCATION

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

~ Finn Nlome (if a P91k iOble) _ _ _ _ _ _ _ _ ___

Add« .

C"" _______

.....

T",lo>phot",

PIeue I;', l ab;"", . o n ..hlc:h !lOll ate willing 10 epuk: I)

" "

They've made their move . .. The Alabama State Bar Association has made a decisive move to strengthen the professional liability insurance prtr tection available to Alabama lawyers. The Bar has endorsed a program that significantly expands liability coverÂˇ age at favorable rates based solely on Alabama lawyer's claims m<:perience.

Professional Liability Insurance, Inc. will administer the insurance program that combines of two major insurers: ance Cmnpany

Now it's your move .â&#x20AC;˘. To find out more

pro-

fessional liability any Alabama .

keystones of

grtM has granted spt'CllIllax credits 10 per1Orl!I who reTIO'''le e~isung build·

Tax and Financing Benefits in the Renovation of Historic Buildings 0 )' J . Theodore Jnckson

n 1M LaSt few yUill there seems to lIa"~ been an increaSfd in{~l by lawyers in owning the buildings

where (!leiI'd/ices are located. Pan of

Ihis intcrest results from I

desir~

avood signiforanl future increases in

rental COSIS forofflCe space. Part d this inl~1 results from the desire and need 01 many 13w~ for tax deduc-

tion s I.'eneraled by a tax shelter. As a group. lawyers arc aln1()St ideally positioned \0 laltt: advantage of the tremendous tax bcr.efils resulting from I he 1'ffIOYa! ion d oIdtf 5\ met Ures. "lost

llwYffS wish lobe located in throo..'n· lown area cbe to the rourthous...

the rental 01 offlOe5~ and the lawyer

does not build up any ownership inte'!" est in lhe office spa<:e h~ is renting, H(I101.'ever. if the law yer buys or coo· $trl>Ctsa building. he bi>(omesentilled toan interest deduction for money bar· f'O\O,'ed to 3C1lui~ or build the building and for l\eprft:ialion d(>dudions result · ing from lheownershipof the building. For several years after the acquisi· tion orCOOSlrlJ<:tion of!he building. !he owntrship of the building will nor· mally proiuce a "lax loss" which will gt'IIer.I!e dfdUCIions which!he lawye" can use !O offset Ir>C(IIJlIt from his ]lnIC' !1Oe or OIher SOIIrotS. In addition. Con·

1"iS ioro:wnmercial use. Although lhe:!e locenU>'es ha,·t vaned in the laSt few years. presently a special 1II"estment lax credit is available f{jual to 1S'l. of the rehabilitation CQlI foe a buildi ng al ltast !hlny ytarsold. m for lilt ~h.a. tMlUllion COSI 01 a build",g al leas! forly yens old and Z&of the ~habili· ta!ion CO!iI 01 a <:er1lf.oo historic stille' lure. T his special ;n,'est ment tax credit is available to la "'ycrs wooown building! in which they prao;:lla oe woo lease a build,ng for I11Qre than fihfftl ytaTS and incur retlO\'ation cor.IS. The lawy. en reh.a bili!a! ion ~ pencht ures must ex· ceed the greatcr of $5.000 or his ad· juSted basis in thc building under Int erna l Re venu e Code ( I. R.C.) §48(gXIXCj(i). The balance oIthis art;· cle will focus on the ~ invt"l\m"U la~ emlit for!he rehabolltation OO&! of cenified historic stlllCl Ures but the !IlIme rules will gencr1llly apply !O!he cred it for buildlllp of younlo'tT" vimage. A cenified hisloric l!rUCI U~ is one that has been listed on the National l/~ter of Historic l'lam; maintained by the United S ta tts 5«re!ary ]nter lOror IS a buikling loclutd III a Historic [),strict thaI has been listed in the Na· 1I0nal ~ster if the buIlding is ceni· lied by the Sec!l:la ry oI ln!crior as being of historic sign ifica nct 10 lhe Dis· tricl. Normally. a bUlldirli CanlJO! achieve this certification unless it is at leaS! fifty yeaTS old. In ortIIer !O obta.n a lisung of the butlding orol a Ilistonc District on the

Theoldesl Structures In town are nor· m~lIy Iocaled in thai area and are Ihe struc:lUres whkh qualify for special lax crfllilS. While not a dtHnillve discus· sion. this articlt will review (hoe special lax tJe,yfils available for the rel>O\"a-

1100 of h isloric 5\ ruct u res and touch on

Ih slorical Prcser;allOll Authority fi· nanclng.

T he His tori cal n CIlOVill ion Inves tmen t T ax Cre di t As most lawyers know. the rent for the use ,J offia $~ i$ dfductil* for inawne!ax purpJ5tS. ]fov,·e\·er. a dollar haS!O be paid ou! in order 10 ~''l! a dfdoction of a dollar. Noextr.1 or addi· tional lax benefits are available from

f. TIttGdo,., jdcbolt. fr.. II "", ...lNTo{ lIN "'''''/tOW!, ..." It>~ p,..,.. of HMSJII"". SUlIIrIy. fo/flulolf & Go,· nil. is II grodlUlle of S4lt1/ord Ulfirersily 11114 ,.,. c~itJtd II ~ ILH, dqrrrw/Nm ~ ia SchOQ/ I.JlW ill 1969.

fhl Unit"'l'Sily of 1'i'1rl'.

Nation~1

Register, application is made through the Alabama Historical Commission. The Secretary of Interior has appointed theAlabama lIistorkal Com· mission as his agent in Alabama for National Register listings. The Histori· cal Commission provides adv~ ond guidallO! to pt.1"SOns wishing to list a buildingordistrict on tl!.! National Reg. istcr. Thl> application is made to the Historical Commission and is screened and. if apprm·ed. forwarded by the Commission to thc De""rtment of Int.,. rior with a recommendation for listing. The Historical Commissioo is moot hclJlful in guiding the property owner through this process. Obtaining the listing normally will takefrom three to six mooths_ After a buildi ng is listed 00 the Na · tional Registtr. the reno"ation must be conducted in accordance with the standards for historic rchabilitation promulgated by the Department 0( In· terioo-, Most architects are either famil· iar with tl!.!se standards or can easily become familiar with them , It is impor· tanl to take t~ standards into ac· count in the early stages of planning for tl!.! rehabilitation. so that any probkms with the desires and plans of tl!.! Ow!\eT that may conflict with tl!.! standards can be identified at an early date. The Alabama Historical Commission is also quite helpfu l in advising property Owners on the consistO.'flCY 0( their plans for renovation with the stand ards, In my e><perience. the standards are not overly restricti"e and few reno"ation plans have had to be signifi · cantly modified in order tOCQ11lply with the standards. After rellQVation is complete. the property Owner must ootain a certification from the Secretary of Interior that the renovation work qualifies for t ..... historic investment tax credit. This certification is obtained through the Alabama I!istorical Commission which will appro"e the reno,·ation work and recommend the approval 01 the Secretary of Interior. The historical investment tax crWit cannot be taken on the cost of acquiring theoriginal building in its unrenov3ted condition or- on the cost of land on which it is located. The credit is also not available for any expenditures to enlarge or add on to t ..... building. AI-

though regu lations have not been pr0mulgated under I.R ,C. §48(g). mOSt planners have been confident that the credit is available on the cost 01 all materials purcha5£'<! for the renova· tion. on t hl> cost of labor in performing the "'flOvation and installi ng any new materials. on the cost of installing m<llern plumbing,electrical wiring and fixtures. heating and air-conditioning systems and impn)'.'cments required by local building or fire codes, In addition. the credit should be a"ailable for the cost of architectu ral and engineer· ing fees, site sU"'ey fees. legal eXi'Cnses in conncction with the renovation. builder's risk type insurance during omst ruction and Other rehabilitation related COSts. A not uncommon exampleol the rela· tivecostsqualifying for the credit woold be a building and land costing $50.000 to purchase and S2OO.ooo t<.l renovate, In this e xample. the credit woold be computed on S2OO.1») and would gen· Crate a historical im'estment tax credit of $50.1»). The credit is not a deduction. but a credit. Consequently. after the lawyer computed his ta xes due in the year that the building was com pleted. hecould then take this $50.1») credit against the taxes he would otherwise owe thego,'crnmcnt. If he did not owe enough to absorb the credit. the credit can be carried back three years and f<)r"\\'ard hfteen years and tl!.! lawyer would receive a ",fund of prior taxes paid or reduce future taxes that will be o"'ed. There are certain additional rules associated with the historical inw~st menttaxcredit which lhelawyer must keep in mind. One requirement is that the taxpaj'er taking the historical in,'eStment tax credit must depr<'Ciate the building on the straight·line methed rather than on an ~k.,-ated method of depreciatioo, U()\\·e,·cr. the taxpaj'cr can still use the fifteen j'earuselui life pennitted by the =Ierated cost recovery rules lor dcpreciation, Another applicable rule is that the ()\\'ner of the thirty and forty year old buildings must reduce his basis or in· "estment in the property for deprecia· tion purpt.ISCS by 1~0I theallowable renovation credit, For cert ified historic structun:s. the owner must reduct' his basis by one-half of the amount of the

credit. In addition. in S(lme circum· stances. the al1emati,·c minimum tax will reduO! thc benefits to the taxpayer of the credit. Also. if the taxpaj'cr sells or dispt.ISCS d the building within five y(.... rs. he will ha,'c to pay back to t ..... govcrnm,."t a portion of the credit taken. Disposition in one year requires repayment of all of the credit. For diSlXJSitioos thcl"I.'3fter. the recapture perrentage d,..::n... ses m per year. Ute. §47(a)(5), In addition. dislXJSition of the building can also reo suit in recaptun' of some dcpreciation which ""ill result in some of theg-din on sale 01 the building being taxed as ordi· nary income. rather than capital gains. These rules do not make the lawyer who renovates ~ hist()ric structure in a ""orse position than he would have been withoot ha"ing renO\'ated the structure in the first place. Nor do these rules make the construction 01 a new building or renovation of a noo' qualifying building moreadvamagrous than renO\'3ting a historic structure_ From a tax standJXlim. even if the law· yer sold his bui lding within a fcw )'ears after n:nO\'at ion. he would st ill recei"e significant tax benefits from the renovation not available from the construc· lion 01 a new buildingor the renovation 0( a non-qualifying building Pres e r vation Easeme n t

Ch,.. ~ l able Con tribut ion Deduction Anot ..... r tax benefit JXltentially avail· able to a law),cr renovating a hist()ric structure is t he a"ailability of a d!.>duction for a Preservation Easement under f.R.c. 17~h). T<.l establish a Prco;c,rvation Easement. the property owner execute:! an case"",nt with a charitable organization such as a cit)'. a local his· torical preservation organi~ation or the Alabama tlistorical Commission. The owner agrees to maintain the structu· ral aSpe<:ts and appcaranced the build· ing's facade and may also agree to maintain certain interior features d the building. Aqualified appraiser then determines the value of t ..... building free of t ..... easement and thl> value of the boilding after being subject to the easement. The difference constitutes a charitable contribution deduction for ineOine tax purpoSeS_ The owner and

sucressor owners will be obligat<..:l tl> adequately maintain the feature;; of the building covered by the easement. In many instances, such an easement will not impose a restriction which the owner considers an undue burden. He will expcc1 to maintain and preserve the features co,'ered by the easement anyway, H(w..e~er, it shou ld be noted, that a subsequent change in desires for the use of the building may be prohi, bited by the easement. If theowner or a successor Owner wishe;; to demolish the building to build a high'rise skys' craper on the site, the easement will restrict him from doing this. Some Preservation Easements ha"e been valued as high as 40%0f the ~alue of the building, Bear in mind, however, that the ~alue of the charitable COIltribution flY a Preservat ion Easement ..,. quires a rorrespondingdeductioo in the taxpayers basis or inv"'!tment in the building which will qualify fOl'" future depreciation. ConsequC11tly, the Preservatioo Easement does not gi"e the taxpayer a new deduction but simply "accelerates" deduction s that wOl.lld otherwise have been r~i,'ed in the form of depreciation deductions. The charitable contribution of a Preserva· tion Easement may also constitute a partial disposition of a rehabilitated building resulting in partial rrolpture of the historical i""e;;tment tax credit. Consequently. careful thought should be given tl> making such a contribution prior to the expiration of the recapture period which is fi"e ycars from thedate the building was renovated and placed in service. Hl'we,'er. this easement can be e xecuted at any time and may be a uniQut bencfitloa lawyer who is seek. ing 10 offsel income taxes in a given year in which his inrome is extraordi· narily high. H ist ori c a l Prcsc r v <l tion Aut h orit y Financing Many building renovations ha,-e been financed through the issuance of His· torical Preservation bonds. Thesedeb! instruments are issued by a local His· torical Preservation Authority established under §<! 1·1()'135 l>f the Code of Alabama. The local Authority can be organi>:ed fOf a given city or county Of groupof coomies. A number of authorities have been organized for specific cit·

ies or counties in Alabama. The organi. ,ation of the-scaut horiti.,. is not a mas· sive undertaking. The Historical PreserYation Author· ity issues its bonds or n(lles to a lender located by the property owner. Although public offerings of bonds or notes can be made through undeTwriters. virtu · ally alillistorical Preservation Author· ity financings in Alabama have been private placements with a bank or other institution or a small number of individuals. The lender lends money to the Authority and the Authority uses (he funds to acquire, renovate, "'luip and furnish a certified historic struc· ture. The Authority would lease the land. building, equipment and furnish· ings to the lawyer. Under the lease, the lawyer agrees to pay all debt service on the debt issued by the Authority and to maintain and insure the building. The lawyer aloo normally personally gua· rantees repayment of the debt to the lender. The lease provides an option in favor of the lessee to purchase the project for a nominal price when the fi· nancing is paid off. Thu s. when the financing is paid off, the lawyer owns the building. He is entitled to deductions for interest, depreciation and historical in"estmenttax credit as though he owned the building outright during the financing period. Interest paid on Historical Preserva· tion bonds or n(lles are exempt from Federal and Stateincome taxation when received by the lender. Because this in· terest income is tax exempt to the I~nder. the lender will give the Author· ity (and indirectly the property owner) a Jov;cr imerest rate than is otherwise available. Consequently. the deb! ~r· vice on the loan is lower than it woold be without the use of HistoricalPrcser· vation financing. Interest rates on Ilis· toOOI Presel"\'ation Authority finar.c· ing usually run two to five percentage PQints below OOIwenl ional rates. In ad· dition, projects financed through Historical Preservation Authorit ies frequently qualify for ad valorem propert\' tax exemptions and for exemptions from State and local sales taxes on the cost of materials, equipment and fur· nishings purchased for the rehabili. tated structure. Historical Preservation Authorities ha"e no money to lend or grant 011 their

own. They are simply a conduit or vehicle for obtaining a lower interest rate and possible tax exemptions for the property oWllCr . It is the resPQnsibitity of the property owner to find the lender and to negotiate the tcrms of the financing. In recent w~'eks, the availability of Ilistoric I'reservation Authority fi· nar.cing for newly proposed projects has been greatly clouded by proposed Federal (ax legislation. We may not know for severa l months whether this financing will continue to be available_ Ilowe,'er, il it is available in the future. this form <J financing is highly benefi· ciallO the propeny owner. Thi s financ· ing is oonnallj' not feasible lor small amounts of money being OOn-owed. Although there is Ill.> rule of thumb, fi· nancings of less than S75.OOO and, in some install«S somewhat more. arc notlargc enough to warrant the useof this financing. Conclu s ion The availability of the historic investment tax credit for the renovation of hi~toric structure'! makes histQric ",novation projtocts among the best tax shelters available. By "irtue of the credit. the Federal government pays about onc-fOl.lnh of the cost of rtOOva· tion in the year thc renovated building is placed in service_Lawyers desiring tl> own their office building should scriouslj' consider acquiring and renovating a historic structure_The credit can make the acquisition and rCfll>Vat ion of a historic structuresignificantlycheaper than the acquisition or ronstruction of a newer office bui lding. In addition, manj' lawyers have taken great pride in restoring and maintain· ing a magnificent landmark for current and future generations to see and enjoy. For many buildingS. the quality of the materials and the docorative fea· tures of a reno"ated historic building arc simply not available in ""w con· struction . The rewards of historic reno l'vation include t~ psychic benefits in addition to the lax benefits and the possible cileapercost of acquiringoffice space by virtue of the ta x benefits. If Histl>rical PrcscT\'ation Authority fi· nancingcontinues to be a~ailable, such financing e"en further reduce'! theC06t l>f the acq u isi t ion of such office space.D

Lawyers 'Rehabilitating' Statewide by Jc n No",ell

abama !>as many ~Uliful.oId hlstOl'lCClllesand IOWII!I. A dec· ago. ",nh the h.elpd pres· erv3tiomSII who rif<!O:l iyeiy lobbied 10 promoIe l1\('ir interests in ~ing a pa rI 01 our past. Cong!'('SS passed a<;ts providiTljj fOOcraI tax incenl;"es tothc:J6.e inclined to take a part in the preserva-

lion crllll't. Until less th:ln a decade

ag\>.

new

const ruction of homes and offices had a financial advantage ",'er the rehabill· tation of okkr hIstoric S1.ructll~. For

many, many )1!3rs l~ suuctures Ief! untouched and ~ C\= demolished, 001 now I~ is an O'1IU,,' wert

i"ill finanoal allemali.-.'and rellabiJila·

lion d older structures has

be<;orn('

ImId. M~ and II1o(R of theR okIer buikhrl&$.~ findlllg .......· Iifr. and 00'

ciues and town~ a~ bcnefiuing as we rd"urbish these lies " 'jlh 00' past. The U.S. Di'partmenl of the Imeri« has PUblish«! guitk:liru.'li for lhose interested in buy;ngoldcrstruclures and taki ng advantage of these tax 1nct'1l' 1;\'1'$. In Ihese uuidclllles rehabilitation is ~finro as ",he ~ of returnlllg lho: pr<lIlI'I1), 10;>3 :!laleal ulili1y. through ~pa'r or alterallQl1~ which makes pos. sible an efflCienl CI.X11emporary U'll' while preser"-Ing IhI::I5l' portions and featiares oI1~ proJII'fl)' ,,·hieh are SIg' mrlCant to ,t s h,5torical. archnoctura[ aod cultural '·alUf'$..·· In lhe paSI "",,'. Mal )l'ars.law)'ffS ha,'c been lhe lead·

en in lhe ad~~I\'c rcUI;(' 01 old build· Ings - rei1aboluallng old bu,klings lor rI'I(I(\em uses. 1...... '$ take a look al SOffi(' oIlhesot law oIficH Slat..... i<k'. A ~ beaul ,Iull""'n than Eufaula CO\lId flOC be found Ihis 10"", of )'ear as q..'<oods. IUltc,aS, aod CIl'\W m)'nle are In full bloom and splash lhe 10000'n wit h ~i,'id roIor. Amidst the be~ut)' of natu .... are dozens 01 southern homo:.'S n~arl y aslo"cly, Two Eufaula law offi · ces. ""lh 'lIt~rt'Sl ongl y simiT~r hislone ties. cnharlC<.' lhe lown 's SOUlhern fla, \'Or, One is I he II,"' offlll'of kU""clll~ I rb y . fOlll1<'rly lh,.' hornc of Governor ChaurlCl!y Sparks who ser..-ed as g!>\" emor of Alabama from ]9.13 10 19H, ~ hou5l' "'as bu,11 In 1851. and after il was ;aequ,....'!! by Go;n'm1Or Spari:s he Ii"ed thtno unl,1 hos deoIlh in 1969, At· lorTlt')' 1IIISSellirby bJughl the houSl'm 1982 to use 1$ hIS Ia" offu, The change ,n I1M' sirocture from ttorn., 10 oilier T\'(Ju,red ooly m",ol' ahcrations aod. for lhe mosl p;tn, the building re. mam~ tluite ",m,lar today as when il was b.ult well O,'t.,. a Ct'mul)' ago, Go"CI'lIOI' Ch~u 'lC't')· Sparks was no! 001)' a poillician. bu1 was alsoa praclicing aIlOl'1le)' and. al a lime. " 'as a judl,,,, 01 the Cwr( of Common l'leas in 11.11" boIIr Cwnty. tk prnc1i<l'd fa" for a numbo,.,. 01 )"t'afS '" whal 1lO'O' arc lhe law ofrlCl'$ of li ous lon and Man in . In the 18.'iO!H hl5 I""O-Story building of finearch'tl'C1ure WaS btult for UI;(' as the McS~b H.ank. It IS ont' of lhe oldest bank bu,ldlngs In Alaoont;[, The ,,'ails all' Ihfft' f...~ Ihick - fJrrnap.; /0 hiltlkr a "i~(II'I'~lluf'''INf)'. lIulrh CAssidy 1),/1<' of IXJII" I'!JIJ«ry - aod lhe rwms hal'e Clghleen,lOOI e.:,llI1gs, The e~tcrior has hca,'y ornall\fnl~1 iron grillwork pial.

,11",19iH

the Alabama 1I:<'j(Isler of Landmarks and II~nlage_ l int,) she dJed. Mrs. Ac· 100 wwld call allorney Allenslein'S secretary ~h slJI""'.1110 Ol'e how her au· leas and 0Ihc-r plants ........" doong, upOn " hieh she had la"",hed such Krelt ca", and cvnctm for ,hlny )·ears. In lhe Okll'O"'n [lISlncl In Selma, a h'Sloric a"", whoch IS included 00 lhe Nallonal ~'1/1Sler of I"stone Places. a", the I..... offices of Sikes & Kell y. John Kell)' sa)'s Iheir firm is one of the mall)' oos;rx'SSt'S I hal h",·c undertaken r~'SIO"'!lon projecls in thIS dlslrict. The mainllOl"1I0n of this Victorian OOItagt: is belic"ed 10 ha.e Iftn onginally con· slruC1l'd al Cahaba and lI1O'oui by muiedrawn .... agon tl"1l'" to Selma", the late 18OIl!I. ThIS struclu re ""as the only Scl",", olra buIldIng to be included in the 1!lS1 Selma 1'i1gn1Tl3Jll' in March.

loons, sleps, and nllhngs on the lrom and sidt', Iron !!nllwork is al:>o used on Ihe s"' _'OIld noor tx,Il"OII~' and w;ooow's. Thc Wlnd(lW, art' t wd,·c 1~1 hIgh and ITI(I-'it ha"~ the orl!!lnal JXlI1t-'S. Thlsoflice has bt>en used b)' Gorman IlouslOn au law of/ice "'~ 1965and by 11oo.lOn and Man ln, I'.C" s iocc Ja mes I•. MarllnjolllO'd Ihe linn in 1974. Th'5 build"l11 .... as fea1Ured In tho,> September 1978 i.sueol AHliq,,~ and the Oc1oh.'1"IN()\·embcr 1971I,ssueof A"...r· i<all l'rnt-'rt-'d/WH -' 1lw d/ices of lIou s· t(O"l and Martin, I'.C .. and li:ussell L Irby a,.., Iocaled 00 llrood St"-"-'1: In

downlown Eufaula and art' both lisl..:! 00 Ihe Nalional I'lacn.

I?l'j(I~lt'r

of H, storic

North of Eufaula,;n P~'fIIX Cil)', is lhe law offiet' of S "';, h & SIll;' h, orig·

inalll' btJIll in 1896 by Dr.II:.S,·Wal · kms. an carl)' Phenix Cny phl'siclan.

TlK' uniet' , picluIT"t1 on Ihe lront {'O,er, wa~ Il'nO'-allod lor u~ as law offices ;n 19!!O. In rellO\-allllg lhe house for lhe law ofliet', 311orne)' Sydney S, Smith says "r-'ery dlon was mad." 10 retain nSOI"tg"'al lealul'l'S and loiet lhe houst' 'speak for 11,,",,1: .• whoch aoconhng to lho,> Interior l~ruurnllS IlIfonameof lhe g<lme In I he Il'habllnation of ok\ef"

In IIonmngham "'-"'ernl law rinns 1Ia,'e boarded the 1l'IlO\·ati(ln/ n':Sl.llI1I· lion oolldwagon. One of 1he lin.1 reha· bililaliGn cflons in lhe ar(", by ala .... liml .... a~ that of "'·lIc k". WoodwlIrd & Thlll"I""'" ult lIighland A'-e",":

struC1u~.

A forrl1('<" h'S,oc'1lct' know" as the 1'lnlh]lS·Actoo 1I0tl'0f' n.ow hausa the law offkeiof 1\1 )'ron I\. Allt'nst ein. a Gadsdl.'fI al1ornt')·, The I Wo-Slory lrame ~tructu1"l.' of V,ctorian Influe."" wa~ U-'l.1I1t bel",..,n 188:1 and 1897 as the homc of Gadsden oo.itlt"SSman 111.11:. I'hillip... The structure wa~conslructl<l on a lot I"'n:hased from CoIooel ll:obert R. I\yk- who ,,·~s in.lromental in the ~d Clldsdt'fl as a tltl' . lle was also OI'lPniu-r of ConledeQtc lroops dUring the C"'il War and srn-ed as a roIoncl In the Conlt'der.llc Anny. In 1943. altn- chal1ll'tlg hands IWO limes, Gadoden mf'n::hant William ~hlchcll Aclon I"-'rrhased IIIfo hoost' w~ lIfoand hIS w tic n-si<k-'d lor man)' YL"'rs. In 1976 M )'rQn I\. Alk-nstem purchnsro Ihl' hom~ for lise as his la ...· officc and II, S"'!C", has bt>en plact<l in

"rl'l*

"al ion" 10 a resloration in· asmuch a'5 I frQnt porch and back porch 0( lhe structure w~ eliminated which alll'l'l.od liS exterior archilfCturnl hne$. Ihstoncall)', the home was buIlt by I.... Mernll family tn Kinningham in 1913. The brock used to build lhe ~ WaS fi1"l.od III a kIln owned b)' Mr. Merrill in CI~III011 and IS smallcr Ihan reg. ulatiGn oIl«' whoch crN lcd many 1)r'Ul). Icms in Ihe r~rw"at I0Il in replacement

down 21st Sireet Qtl tho; way 10 the courthouse and had always though it would be perfect for a law office. The opporlunity presented itself and he ac· qUiR'<l it in early 1982. Wininger & Lee occupit-s approximately fifty percent of the building on the grwnd floor. The remainder 0( the building is lea"'!<llo IwoOlher law finns. The building was built in lho; early 1920s by D. O. Whilldin, an archilect who u>ed il lor his own office. On~ of the beautiful exterior features of Ihis of/ice is the finely detailed term COila tUfll.'ue at the l'1ltrnnce. desigTll.'<l by IVhilklin. Supponfd by heavy brackets. it fnlures a beriblx)!l~'<l wr('ath of acanthus lea" es framing a carlouche in blue, green and !ighl ochrc terra cot ta with a stipPk'<l surface. the bri~k needed where the pore,," were removed. The ooilding was com· pleted in july 1976. and the structure was awarded the 19n Awa rd of Merit by theAlabama Historical Commission and has receivfd much public notoriety. 0(

A couple

blocks down the street are the law offices of sole praclitiQtlel1i I"" es T. TM\! , Martha Ja n e Pa t· Ion . and Be njam in G. Co he n . This t u rn-of·1 he-rentury structure. origi n alIy the residence of the W.5. Yeilding fam· ily. is vi("l>.'fd by many jogg<!rs and strollers along historic and picturt'Oique High land A"mue on Binningham's 0(

Soot hside. Many original archilectural featuR'S relain lhei r 1913 navor. in· c1uding the mosaic; lile porch. leadfd glass enlrance and woc.:! bcamfd ceil· lIlgs. The law firm of En ],fel. lI "i." lon . Mo ses & Johanson hasjost recently moved their offic;es around the corner lrom Ihe Watts Building in downlOwn Binningham to Ihe Nabers. Morrow and 5innige Building. The men lor which this building is named were partners in the wholesale and relail drog business and built the stroclUre arwnd 1895. Around 19]8. Thorn!," son's Cale OpCnfd on the ground fIoo.and is sHIl operating tho;re today This five-story struct ure is Iocatfd on th~ siteo( t he first City lIall and fir~ slation in Birmingham. The handSQtlle white brkk building is trimmed wilh lena rolla. It is an e xample of the s,m· plified French Rmaissance style. One R'II$(>!l many law)'ers prefer Iheir offices in the downtown areas is lhe dose proxi mit y 10 Ihe OJUrthouscs usually located in the ITnter of town. Most historic structu res are also l0cated in the older areas of lown in or dose to downtown. rather than in Ihe more recently de"eloped suburbs. The law offices of Wini" IIU & l<, c are located a block and a half from tlw jcfferwn County Courthouse and two blocks from the Ffdcrnl Courthouse in downtown Birmingham. Oa"k! Winin · ger says he observed the building for eighteen years as he walkfd up and

,\nolhcr interesting Bi rmingham is the Bradford Building on Socond A,enUl' North which houses the law offices (If D a v id C hi p Sch w"rt ~. This building was CQn' Slru~tfd in 1870 ;'" ;;;'d r~lI()\ial ion

d;;;,,,;"',,,,,,

and restored by the new owner Phil Hont1.a s. proprietor of 1he well·known john's Restaurant Theoffice Ica"'!<l by Ihe Schwartz firm is in lhe central business district. also just a few blocks from lhe courthouse. 1I"" k F,mllin . a Tallad'1.'3 attor· ney. has made lhe use of an ]890 st rut· ture built by the Clardy family for his law practice.lt has remair\td unchanged CXIT]ll for a renovation in the late 19-.l0s when two front porches were removed and the ent rance inslalled as it looks loday. Thisold building has been used through the years as a residence. par· sonage. boarding house. fUTlI.'fal home. and siTll.'e t 978 as a law office.

found in one of Ihe older homes const rueted on Leigh ton A"enue in Anniston. The Bell 1I0use. conlpletro in 1908, was oc:cupied by the Charles R. Belt family unt il theearl)' 19705, It was restored in the fall of 1978 for usus an architcctural design ~tudio and office'!. I! is part of Alabama's I'reservro Architectural Heritage. In 1983 Wi lson. ]>u m ro ), and Bry a n purchased the strue(Ure for use as thei r law off~.

A Tuscaloosa home l>uill in 1887 OIl Ihe soulhwesl corner of the inter$CClion of Sixth Slreet and Twcnty 5/,'" enth A"enue houses the law oflices of Ke lllled y, And res & Ad~" ns . The original owners were Frro and Lucy Maxwell. whoinaOOuII907mo~ro the hou"" to the ,,'es l6{i feet and built a larger, nlO!"l' sumptuous home where this one stood _ University or Alabama Eket rical Engi""<'ring Professor Emer· itus Frro Maxwell.] r .. was born in this house and regularl)' Mums to refk'C1 and reminioo:. As wilh many of these older struc· tures that were originally residenres. there are fircplao:s in each room. T he architectural inflUCn<:e of some of Frank Lloyd Wright's early work is

lisl of tenants including some young ladie; whoweremembersof t he world's oldest prof<'ssion, doctors, t he Alabama Educatioo Assnciation. the Montgomery Real ESlale Board. and the Jones la w School to name only a few. In 19-12 Jaek Capell open<-..:! a one room lawofflCCon the ground floor. In 1962 he acquired t il le'to the l>uilding and, presently, the offices of Capell , fl(lward, Knabe & Cobb;; fill the ent ire struct ure. Across the street from the ,,7 Adams Building slands the "CIlC1<lble old First Presbyterian Church - the oIdcst siructure in the neighborhood and the undispulro Queen of the Block. In an article wrillen by John B. ScotI.Jr., a m~mber of the firm, he enacts a dia logue which might take l~ace between

In concluding this look at romeof the law firms stalewide that ha,'C taken a ,';tal part in the pre;crvation of older, hislori<: struclures, let's take a brief look at a Montgomery law {iml on Adams Avenue whi<:h wasconstrueted in 1901 during a period of great activity in the city. Originally this building. now the law officcs of Cape ll . Il o w_ <lTd. Km, bc & Cob b s . "'as a Iran· sient boarding house at tracting young men trying to make a start in business or a profession in Montgomery. This downtnwn office bui lding, throogh the )'ears. has housed a "aried these twO old building>; on a moonlit night, when the busy downtown traffic has subsided and Ihe s treet is quie1: Fifty."",·..., Adam. might sigh O'IIer .11 thcic fril:ndly old neighbo< build·

ings I<.\t to parking lotund new (:On. struet""" and tilt old church building might ",ply: "H,ng in til<1"c, sist .....

K..-p yoor manor ' ight and )..... r

fkx>r joiS!$ f""" .n~_ Yoo .till ha,'e" long way to gu." To which t~ 0( uS who work under its tcrin~ """ es would add, "Amen." 0

_""I·

{II

Ihl nexl issue, ""u",VJI;,ms

",ill "" Clmli>lurd ,.,ilh a look al a (oupl~ of oJ/,rr "'o"I/,'IImery reka· hililalion, alld "",,,,ral;,, Ihe Mo· hik arca,

Opinions of the General Counsel William II. Morro ..... Jr.

Q UEST ION: " ' s it ethica l for li n Illlomcy "" a n in ves tigator or OIhe r I>crson act ing on bChnlfol a n aHo m ey to nwke recordings or c on versat ion s wit h cl ients. othe r al. torne y s. WilnCS1Ie8 o r <>t hen! withom prior kno .... '. edllc :md Conse nt 01 nil Im Tt;.,. to Ih" con \'CnIJI l ions?"

A NSWER: It is uneth ical for an aUorney or an invcstigator or other person acting Qn behalf 01 an attorney 10 make l"I.'CQrtIings 01 ronvc ..... tioos Wilh any l"'rsotlS, be lhey clients. otheT a1l0l"' neys. wilnessesorOlhers without priorknowlcdgeand con· sent at all parties 10 the con'"<!l"SlItions. DI SCUSSION: Disciplinary IMe 1 · 102(A)(~ ) prov~:

"(Al A law~ $hall 001: (4) Engage in conduct in''OivingdisMnesty. fraud, deoe'It. or ml5r~n"lIoo. nor be guilty 01 willful misconduct," Di!iciphnary Ru~ ]·102(,\) (6) provides;

'"(A) A lawyer shall noI:

(6) Eng:age In any OIher conduct Ilia! ad,~· $ely reflects on his fil ntSS to po;IIICla Law." Canon 9 PfO"ae.: "" I.awyff Should Avoid ~:~ the Awear· anced Professiona.l irnpropriel y.M Ethical Considtnltion 9-2 in pan provides: "When t xphdt ethical gUIdance doI'S Il(II exis!. a law)'C'r s hould deltymine his conduct by acling in a manner Ihal promoces public conlidencH in the inlegrity and effi· ciency ot Ihe l/'gal $ystcm and Ihe legal prOfession," In Formal Opinion 150 (1936) lhe American Bar Associalion COl1'lmillee 011 El hies and !'rofetsional Hesponsibility

was called upon to inltrprft Canon 22, Canons ot Prol('ll' s ienal Responsibilily of the Amtrican Bar Associalion. .... hich in pan provided: ''TIle rondUCl. of the la .... yty before lhe Coun and with ocher la .... yers shou ld be by ClIndor and fairness.

Characleri~

It is unprofessional and dishonorablt to deal OIher Ihan candidly with the facti in taking the statem<!flts of wit!"l('!lStS, in drawing affidavits and Other document s , and in the present ation of ca uSCII," The Committe.. held that a conversation bet"'een a deftndant in custody and his attorney is a confidential com. munication. and a prosecuting attorney may not t thiaUy use a rerording ot such con"trS3tion " 'ithoutt he knowloogt and ronsent of the panies thereto in evidence in t he prosecu. tion ot the defendam although the CO''''~tion might be admissible in ~.t$. mallerot la ..... In Informal Opinion 1008(1967) the Arnerican llar AS&Oci· ation Committee on Ethics and Prolewonalllesponsibilit y. again interpreting Canon 22, heklthat il is unethical lor a lawyff to make a recordingot a conversation wilh his clotnl without lbe- clw,m 's knowledge or without warning lhe client. In the opinion tbe- Committee staled:

"Is il appropri;ue for a laW)'ft" 10 make a

recording ot a COI1\'tfUlion .... ilh a client without the client ', knowledge or w,lhout warning the client ~~ though IhlS con''t'f'S3lion ""QUid not be disck:l5M to ootPd· ers in vioIalion ot the allomey.cJient privi· ~ and ""oold only bedisck:l5M 1000t51(1ers as an exception to l]ow, priviltgc?

Canon 22 on candor and failTM'Sll dealing principally with candor 10 the COlI.t and to other lawyers has been interpre!ed by this Committee to impose an obligation upOn the lawytr 10 he candid with hi s client as well.

T he making 01 s uch a T«Ud would he a vIOlation 01 the obligation 01 candor and fa.ro'less. Therefore."~ think that there is an obligation on the laW)"ff to hecandid and fa,r wnh his d;"nt when he is making a "erb:nim T«Ud of the conversation, and not to make such recording without such disclosllrt!:'

a felktw la~ . should 1\ not be unethical if the Il"COrdfd per!OIl is a layperson? Cer' tainly the layptBOll will not he likely to pen:ei,~ the ground for distinction.

DR 1·I02(A)(4) oIlhe Code oIl'rofessional Responsibility st ates that.·A lawyer shall not engage in conduct involvingdishoncsly. fraud. deceit. or misrepresentation: This disci pi inary ",leis IIU bstant ia II Yequivalent 10. but somewhat broader than . Canon 220( the former Caoonsol Ethics "'hich im~ on an allorney an obIigalion to he candid and fair 'before the Court and wilh othtr lawyers:

In Informal Opinion l009 ( 1OO7} the American Bar A!;$OCi· ation Commit!...., on Ethics and Professional Responsibility. ~in interpreting Canon 22. htklthat il is unethical for a lawyer 10m:or!l a te\ephonecon"ers3tlOl1 wilh allOlhtr law· ~r wnhout advancedi'IClo5u~and warning to such othtr lawyer. In Formal Opinion 337 (1974) the American Bar Associa· lion Commiltee 00 Ethics and l'rofessional Responsibility hc:1d that it is unethical for an altorney to make recordingsol ronvel"S<ltion$ wilh any perw!lS. be lhey (Iiems. other altor· neys. wit nesses or others without prior koowledgeand ron· ~nl 01 all parties. The Commillte reli«! primarily upon Canon 9 and ])isciplinary Ru~ 1·1(Y2(A) (~) oItht C<Xlo!. 01 l'rofeMlONIl Responsibihty 01 tilt American Bar Associa· tion. The Commiltfe citfd Information Oponion 1008 and Information Opinion ]009 and~,

The conduct prOSCribed in DR !·I02(A) (4). i.o: .. conduct which involves dishonesty. fraud. deait or misrepresentation in the ,.jew 01 t he Com m iltte clearly en<XlIIlpa$Se$ tho: mak'ng 01 reeordina "'ilhout the con· Sfflt 01 all partoes." In infonnalOpimon 1320(197S)theAmerican BarAssoci· 8tion Commillee 00 Ethics and Professional RespOnsibility held Ihat an allorney could 00\ permit his investigalor to surreptitiously record a C()'1\"~rsa t ioo wilh a witne511 with· out the koowk'dge and CCII15ent 01 the witr>es$. The opinions 01 statt and Ioc:a.l ethics commillCO!$ appear to be in virtually unanimous agretment "'ilh the foregoing opnions 01 the American Rar Association CommLltte 00 Ethics and PnJessional Kesponsibility. Cf.. Tuu Opmoo 8-1, 16 TQJIS &IT joMnttlI101 (1953~ In v_ 01 the foregang authorities and the reasons set forth therein. ,,'e conclude thai )'OU could not roo:wd llot colwersalions described in your request for opinion without 0 prior Knowledge and consent of a1\ parties therelo.

"So far as diems and other allorneys are concerned. the prior Informal Opinions make the conclusion clear. Attorneys must 00\ make m:ording:'l without theronsem 01 these parties to lhe cawersation. WhIle the law is IlOI dearor uniform as to roo:wding by lawyer'S 01 CCIIwersations 01 'other persons: il is difficuh 10 make a dis' I inc\ion in principle. If undisclosed rooxd· ing is unethical when 1he parly is a client or

Who says your

EdlicatiOll has to be a chore? ALABAMA ATTORN EYS lt1EMO providn w....,kly digoesrs of mn.ions of the Suprc.... Court , Court of Civil

Appe~ls,

Court of Criminal Appuls ~nd xts of the l~sluun. SubJc,ipti"" b,.. , U .. F1,,,. '\31.00 _ Sol. ALAIIA.'>iAA n ORNEYS MEMO

•

' .O.Box1117

'rocli"".. $108.00

• CoIumbto, T.nnes_38402

n March 8. 1984. tile follo"';ngdisciplinary pro-

Cftdings took place before the Board 01 Com· miSl!ionen 01 the Al.aoorrnl Slale /:Ia,:

P riva te Re llrimand A Iaw)'tr wn priVllleiy reprimanded for haVing viiilau~d DR 1·102 (A)(4). by mi!Wrpo C\entinga rrnueri.al fact in his response 10 a oompiainl thaI a client IIad filtd apinSI him willi. the Disciplinary Commission of the

Stalt Har.

P ublic

~ ns ures

Tuscaloosa lawyer Richard O. Fanl. Jr .• was publicly censured for having violated DR 5-101(C) by Ilavinll represented a client in connection with a petition til modify a divorce decree. after ha"ing previously reprn· tnted thai client's formerspoose in connection willi. an tarlier petition 10 modify the same divoroe d«=. Mr. Fan! \\'as aliSO publicly oensured 1(0'" 1\a"iOi violated DR 1·102 (A) (!>), DR ! . ]02(A) (6). and 0 11: 7·1(12 CAl by ha"ing advised a bankruptey cI~m 10 Il'lms fer ownership 01 a motor vehicle 10 the client', mother prior [0 filll1' for bankrup":y in order 10 ~llhe .dllle ,<ehic:le Ihr"OUSlh the bankruptcy ... ox«dings. Mr. Fanl Jnparm a bill at sale from tile client 10 lIis mothfor for lhe vehick. failed 10 list the ''ehicle on any of the bank. ruptcy schedules which he JUP3r«! for the client. and advised lhe clienl to make 00 menlion of the molar vchick durirIJI his testimony in connection with the bankruplC)' proceedings.

en.

Gulf Shores attorney Sa muel McK craU was put>. licly «nsur«! btfQrt the Board d Comm;51ionen of the Alabama State Bar for .ioIation d Disciplinary Rules 1·I02(AX4), H02(AXS). I· I02(A:(6). 7·102(A)(5). 7· I02(A) (7) and 7·I02{A) (8) oIlhe Codeol Profe5lional Re$pon$i · bility. It wn found thai Mr. McKerall had sialtd falsely under OiIth. in his CiI~ty as a notary public. tllat an instrument had llrfll exa:uted in his I" csen(1l!. when . in fact. Ihe inSlrument had been signed earlier. outside 01

his prese~. by a person other Ihan the person whose name was affixed to lhe instrument and to whose signa· lUre he alte!5ted, Mr. McKe1"ll1l admItted Ihat the in· strument already had a signalure affixed when it ,,'as presented \0 him. and Illat it was not presented to him by thepenon that purponedly.igned thedocument. but that he ~he\Qs allesttd 10 the sianalure. De:atur allorney Joe IJ. !'o well ,,<IS publicly «n. sured bef(ft the Board 01 Commissioners oIlhe Ala· bama Stale Bar lor violation of Disciplinary Rule ~ 1000A)(1 )0I" the Codeof ProftsSional Kesp;)nsibility. M•• Pov.·el1 admilled that he had commingled his personal funds wilh lhose of hi s dients in his attorney's trust account in violation of the Disciplinary Rule citoo a\xr.'e which requires thai attorneys maintain clients' funds in an identifiable bank aCOOllnt, and that these clients' funds be kepi. Sl:'p;!l"lItc and apart from the allomey's personal funds. Binningham atlomty Law...,n.:e 8 . S heffield.J •••

was publicly ~nsum:l for having "io!aled DR G.IOI.DR 7· IOI (A) ( I). and DR 7·101(A) (2). by ha"ing willfully neglKteda legal matterentruSled to him. havinginlen· tionally lailed to sedt che lawful objecti.-esol his client. and having intemionally faIled to(:lrry OUt acontract 01 employment enlered inlO w;lh lheclienl in connection " '"h a o\"il suit thai Mr. Sheffield filed and Ihen "inu' ally Igr>end for ""..". si~ YN ....

Suspe ns ion

Birmingham lawyer G. I~ n "c tl lIa yn"". Jr., was suspended from the PQCIi« of law fo.- a period 01 120 days, effecti"e April 30. 1964. Mr. 1!a)'TIeS' suspension results from the Disciplinary Board',lindings thai Mr. Haynes violated DR G.JOlCA), and DR HO I(A) of the Code 01 Professional Responslbollt y 01 the Alaooma Stalt Bar. by .... illfully failing 10 rHpond 10 a federnl judge's order Illat he show (:IUSI'. by a spocifoed dale. " 'hy a o"il suit lhat he had filed should not bedismissed lor want 01 pnlO\O'(ution.

.U., I~

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Call 433-3145 Mobile

r--------------------------------------------------l

B 88B

Howard,Wei~l.abouisse, Friedrichs ~

INCORPOAA IÂŁo

56 SI FrancIS Street, PO Box 1866

Mobile, Al36633

!otlll(

''''',00

/,,,, ,tw. .. .,.,.." to. !>file, Wd. to !lei doM lell "'" """" .bout Sllucruton! ..,,,~,,.> on " Ie<<Âť""" to /u"''' , um .,. , """'".

"M<"",------------------------------------______________________________ ( ily_____________

SIO'e' _________ Zip _______

-~::~-~-.-..-.-.-.-. -. .- .-.-.-. -..-.-.-.-. -..-.-.-.-. -. .-.-.-.-. -. .- .-.-.-. -. .

The Final Judgment illness. lie was fifty.JIix at the time 01 his death. Charlie was born in Georgianna 011

dIstInguished. He was a membcr olthe F,rst United Methodist Chu rch of

March 8, 1927. Hcallcnded undergrad·

01 its adm inistrative board. (hulie', skills as a trial ad"ocate

wlte school at Auburn Uniyersity and Nonh Carolilla Sialt CoIlegl' and received h,s l L 8. degree from the Un,· "m;ilyof AJabilllnlllaw School in ]%0. Whiif, in law OiChooi. he $en'eeI as a member of the AIa~"", f.Al ... /lew ... and was elcl:tt'd \0 Farrah Order of Ju·

rispruokooe. Afler graduation from taw !iChW. he began his lifeiongdevOIion 10 the law as a member 01 the Montgomery law firm at Rushton. St akely,Jo/ln· Mon & Ga rretl. During his pract ~. Charlie sen'ed as a member d many statt and local bar comm1lleesand ....iI!I

C.E. Porter Charles Edward Porter. a dlSlmg\lIShed tnallawyer and leg:al ad\'(IC;IU'. dl(don February6. ]~.aftera lengthy

ISake r.

elected president of ttJ,f, Montgomel')' County Bar AS5OCIal1(ll'l In 1973. llis ser"ioe to h,s community ,,'as equally

'1 ..l1in Hilmu ~

·\on\lu,,1: 1979

-Cunt,'",vilk Ihc-d- \Ia .... h 16.I!lI'1

'Ian in. John Clark - T " .....'"mb''' Admm.'(j: 193tl 11,00- \brrh !I,

were well known and re5pcCU.'ents and his ad "eJlS3r1es. lk was 1Mticulous in his Jn1)aralion for the tnal are<1a. always e xhibiu!1jj: a tenaciou~ grasp d all factual <kt~il$ 'MoI,'ed in the coou"()\'ersy, His Irial sk.lIs led 10 his sel<!Ct ion as a Fellow d \~ American College of T rial La W)'<'rs in 1981. Ch~rl ie left a proud heri l a~ for his wirc. lleltn.~r.d twochlld .... n. Maibelh . a pract icing auomey in Birmmgham. and Charlie. a medical siudeni al lhe Un,,'el"llity rJ Alabama Ml'diall Schoxll, Charlie's law firm. his fclkw.· IaW)~ and hIS CQlTImun;ty will long mlSl thIS devotl'd stf','lnt olt~ taw.

1-1"...... Una"<'u" IIralb(. Sr.-]·:m'·'pn .....· ,\<111\,U,,1: l!J! I ])i,'<I: ~IJ ....-h 13. I!*,I I-Iudolph .•:d ..... nt M .. ~ nard - .\n~·n' 111,· ,\dml!!I"\I: I'~I!I Dioo' \larch I. I'N

" aybaU.ito)-Ja,<p,:r Admllll'll: 192::1 DI<<l \I;".:h II. 1<1!;.l

St, Juhn. !-'ini.. E... inl/. Jr. -CullmM) ,\dm'11,~I: I!tll IJlc'll: \iarch';,I!\'i1

Olin'" William Se th -I'"nola

S.." ...... lt1h, u II1 W" " nc -Tusnunl"a ,\<lnlllh;(j- I!'7:, Illc-d : ~"·l>ru",; l~. 1'Ill I

,\dmlllt'<l: 19>18

, ••

Montgomery and se1>ed as chairman

n,,~I:

,\Ia,('h 11.19&1

PnUu,lflI Ora)'lon -1.I\'UlK'lOn Aclmutrd: 1933 Ilwd: h'br"uary 6.

1~1

Wall.·ro. Walla ..... Uarby- \ lonll!"nll"l")' ;WmlU.'tI: I~ra [),,'(!: 1)'-'U'fl\I~'r :\1. 1!1t\\

Thesr nOlln'" Ire pubhsh ... llmmt"dial~h· afle, ",,,u,,.' of d~Jlh J'~ ''''-'''''·00, /:I"ltrnph..:~1 mf(ll'llUlllOl'l 1\01 appea""l! .n Ih._, "~U~ ,,·ill 1:>. pubh tlrd a1 a la1er dale if infotfn..l;m IS a.-...... ibJ... Wca~k that )'OU promptly ... port thcdcalh of an ,'\labamaa!torn~}' 1011l1',\13ooma Stall' Bar. and "-l' .';oold apprrnal~ your ass,,!anIT m I'ro"ld"'R iHowapllll.",,1 Informa""" r<.or

TIN Ala".. ..... 14"'"

1I(l'O.·e. and Sawyer. II,s daughter is Margaret Ann Ro.....e Fogleman. alsod Enterprise.

lngs and [.0110 and 15 a dir«tor d lhe Parkei'" Bank. Finis St.John.Jr ...... as a great lawyer with a keen mind, an understandingol human mture. great wil and capacity for hard work. Sympalhy is expressed to his wifc. Mary Jackson St. John and t ....o sons-Finis III and Warren. lie will be/ll'e3tly missro by h,s family, friffids and fdlow members d the bar.

B.B. Rowe, Sr. Hr.ixu:..., Bragg Iwwe 01 Enlerprise died on March 13. 19SI.1l~ " 'asse"enly' 11m~.

"lIroc""Wowe was born on March 13. 19l1. in New llrocklon . Alabama. fie altended T TO¥ Slal~ Uno"ersity and It.., Un"....."ily d Alabama and earned hIS law dego-ft from lhe! Un, ...mny d Ala· bama School 01 Law in 1942. "" lime " ",as a member 01 the Cdfre County. Alabama and American Bar A$S(I(:ialKm.ln addition HI his activities as II ItM'mberd the legal prOI"¢!$Km. he "'n a long lime member 01 the Enter· prise Ko:oiary Club and the Firs! Unitro Methodist Church d t:nterprtse. "Brae" was a lawyer's lawyer and was a peoples lawyer. and proud ol il. lI is interests were lhe practice al law and his family. He ,,'as an uncommon lawyer and an uncommon man. Ill' had an oId·fashiontd sense d dUlY toward hIS climts " 'hich oompellcd him to tx ~ just their la~. but their friffid. Fn~nds ol"Brac" prlu.'d his wperior mond. hiS crisp yet jJosith'e wi •. and his mastery of the anecdote. The Bar. his parlllCr. and his family are richer for having had Braxlon Il. Wo"'e wilh them these years. yeI he ~,.t:S an empty pI~ in the IIO'art s and minds d tIKR ",110 ha"e lost II true and truSlro friend. Ilisoompanion~hlpand gracious chann wi\l bc missed . In Sept~mbcr. ""Bn~" celebrated his fiftielh wedding anni,·tr1I<Iry with his wife. Pearl k"'1!i R(lYo·e. woo survi,'eS him. lie is also sur"';'·ro by IWO sons. Braxlon D. Ro",'e.Jr .. d Athens. G«lr. gla. and Ch.arles Warren Rowe. who wa~ in t"" pr.lCtoa: ollaw with his fa· t"", in the EntcrjJrisc firm of Wowe.

F.E. St. John, Jr. Finis EWll1g St.John.Jr .• d Cullman died on March 6. 19&1. He was Soevent\·· four. Finis Ewing St.John.Jr .. was born in Cullman on October 14, 1909. He al·

tended 1I(lYo'ard CoIltge (now Samford Um"ersnylin 6inn,ngh.am andgradu·

1100 from It.. Uni"erslty d Alaboma School of Law in 1931. lie then wem InIO lhe jJl"3Ctice of I~w on Cullm~n wilh his fathel". FiniS Ewing St. John. Sr .. who in 1895 foundro the taw firm where the younger St. Jolin prac1iced until his death. Ihs ilOIl. Finis III; grand!lllfl. Finis [V; and daughter·i ... law .Juliet G. St.Johnjoined the finn in lhe \'e3rs that 10110""00. Mr. St.John servoo t wo tcrn'~ in It.. Alabama State Sennlc beginning his first term in 1939and ...·au ItM'mberol the Alaboma Codf, Committee of )940. lI is arandfather. falher. uncle. OOU'Sin and son also sen·oo in the Alabama lJ.'lllslature dating back 10 the )'e3r 18.')2. For many years Mr. SI.John w~scity altorney for I"" Ci ly of Cullman. lie was a paM prtSodent d the Kiwanis Club and the Cullman County Bar Associalion.lle "''as a Fellow of the Amer· ian College of Tnal l.a"·)·ers and a mcmtxr of bolh the Alabama and Aml'tun Bar AS5OCiat ions. He also served as pre;idenl of Impro'w Sav·

J.H. Curry John Hardy Curry d Carrollton diro onJanuary 14. 1984.11e ,,·asriehly·N"O. ··Mr.John." as he wu affectionately called. was a t9"l~ graduate of the Uni"crsity of Alabama School ol Law. Aftcr admis$ion 10 the bar. he began pnctlOt "'ith his father. M .H. Curry. in lhe law p;o.nnershipoiCurry& Curry. From 1935 to 1940 he ,... arked ...·ilh the U.S. CM-ernment in the legal dtpart· mcm of the U.S. Doepartmenl 01 Agri. culture in Montgomery . lie then returned toCarroilton to resume practice with his father until the $tnior Curry's dealh. In 1969. Mr. Curry and W.O. (Ruddy) Kirk. Jr., began the firm d Curry and Kirk and thert' t.. remained untol his recent oolh. Mr. Curry was a memberoflheCar· roilion B.1)11ist Church where he served faithfully as a deaeon and leader d • ..., Men's Bible Class forO\'er thirty years. lie ,,'as a man 01 GOO and exl'fl'll".'d this in his daily life. H,s gtnerOSity in service!; and malerial means for the Cl\U$t of Christianity was widely felt through his church and hiscommunity. At his death. Mr. Curry was ser\'itlJl

as ~ member of the Board 01 Dinxtm of the Pickens County H()8pit~1 Associ· ation and had servC<! on this board con· secuti"ely for m~ than twenty-five Yf31"S.

Mr. Curry was en!kw.·C<! with thl! basic gifts of love. honesty and loyalty. and in"cstC<! these qualities among his ao:quaintances whosoon became friends. !Ie leaves hehind a legacy 01 hard work. aOOlmp)ishment •. I()ve ~nd service to his fellow citizens and to God. Sympathy is expressed to his wife of f(l(jy·nine years. Lola B. Curry, and to his many friends.

Ted died on Christmas day 1983 af· ter an illness of alroost ten years. He retired from the active practice 01 law in 1976. Even though we mourn the death of Ted Holfmann eight fulll'ears aftcr hi. retirement. there are many of uS here with clear and affectionate mernoriesof him . Iledistinguished him· sdf in our hearts and minds as an un· sWeJ"\ling yet honorable comJletit .... a st raight charging yet compassionate mediator. a dignified Il>Oer. yet, more often. a graceful winner. Ted taught many of looay's Mont· gQmery lawyers at Jones Law Institute in the subjOCIs of I... ts and trial advocacy. He was act;"e in the Slate lia r Association and was 00 the Board of Direclors 01 Ihe Alabama De fense Lawyers Association for th= years. Ted kNed practicing law more than any endeavor of his life. Jt was ycry

telling indeed to listen 10 Ted - an expert equestrian. an e xceptional ath · lete, a prolessional baseball pla)"er - to hear him talk about the high points of his life. ln'·ariably he spokeof his triab and the men and women of his profes· sion that he TeijlCCted and lo,'ed. In his twelve short years of practice, Ted ma naged to impart to uS an extra degreo: of pride in being a lawyer. because he had sa much hi mself-lie was able to convey 10 uS through his own quiet assurance that hard work and justice do walk logether before a jury. Ted was able 10 lea"e with uS a meas· ure of his courage. his dignity and his g~.

The Alabama Baris better fOl""Ted's life and we join with his wife, Martha. and his children. J()hn. Paige. Norma. Mal1ha and Sumnna. in OUr S<lIT()W for his death. 0

"Executive "Director's "lwport (G>~tin Nrd

I",,,, pagt 125)

local bars are more active now than

e,'er before.

T.H. Hoffma nn Theodore "Ted" Henry Hoffmann of Moolgo;merydiedonDecernber25.1983. lie was forty·nine. Ted earned his undergraduate degre<l in oomnlCrct'. from the University of Virginia. !lc m:eivC<! his law degree from the University ()f Alabama School of Law and was admitted to the Alabama Bar in 1964. His first resp.;msibility as a lawj-er was as clerk to Justice R()/)ert B. /larwood. He then began the private practice of law in Montgomery and was one of MontgQmery's truly fine lawyers. Ted was a trial lawyer. lie made no secret of that Jll"t'ference. His fellow advocates uniformly called him a gifted trial lawyer.

It is painfully embarrassing to write to a bar member a nd learn that he 01"" she is rea:ntly deceased. I would appreciate receiving notice of any members's death. lJon ·t assume that someonee!se w ill write or call - they usually don·1. Character affidavits for bar appli· ca nts are theapphcants" responsibility. Fa r 100 fr<'Quen t Iy St uden ts lea"e forms with our members who assure them thallhc a ttorneys will forward the af· fidavits to US. but the affidavits don't gel mailed. The student is penalized since our deadliflt'l; ~re firm and, unf()r· tunately. many students wait untillhe last minute to fi le. As a result. some students must wait an e~lra six months to sil for lhe liar exam. Fina lly

I was recently slruck by the sage advice penned by Indiana State liar P.rcsident John Carroll. In his "President's Message" he addressed the '"Reach Out"' JIn)gl"3m of thai ~SS<lC;a· ti(Kl. concerned with outreach to the

bar. the bench and the public, and the high import to be placedon outreach to the public. He wrote: Each laW)ler shoold be coroa:rned about how he i. "iewed by hi.c1ients. hi. lrierl<l s and e>·..-yooe he IOOOts {or t hoir ptrceptions of h im will be t no nslated into general perceptions'" the prof...ion. Thu • • _h of u•• hoold look to .... r own habits and man""" in all oor dealings. Each o/ ..s "'... / ««<pi II.. la~1 I/ur/ " .... ou.-uk",-

art: tI,~ priuripal shaIN'" <>1 ""' p..blk (Emph3<is added).

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Nelson Illdg .. Ilirmingham. Alabama 35203. Phone 324-65-11 . FOR SA LE: So :ld Reporlrr, complete "1. will .. II lor $6.000. Corpus Juris Seculldum (l01 volu"",,"l. nero. !lOCke! ""ns. will stll for $1.045 Se1 0( Proving M~ OcaI Diagnosis and Pr"ll!!nosi$ (by Matthew Ikndecl. alii I voIu"",," _ $20 each: price $220. Proof of Facts (by Am ...· ican jurisprudente). index ~us all 17 Vl> lu mrs. $270.l"lIhelp box them. yoo mm.port them. In Alabama call 534·1443 01'" !>3ti-0911. FOR SA LE, CIS. a ll voIumts U..tIlM "'ith ctlrre1t supPlement. to 1982. $1.500. ,'labama o;g.st. completely upd.tNi. $000. Can 594-7]08. P.O. lloJ< 143. Ash· ville. Alabama 35953. Will deli"er if

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lioo-tsOO .tlOl""'y w;to fine arl s training and '''lens;" . bacl<ground in visu.1 com· munlCa'iofl •. 85" of "'lall'~ inf(ll"matioo i. learned "isually, lIelp)'OUc client by helJ>ing the jury tram and ",member. F(lI" further informalion (lI" .. mplcs cootact Elgin Carv..... 1001 Kingsb\lry Avenue. BirminghAm. Alabllma 3.';213. (2(5) 87(1..1641.

EX,\MINAT ION OFQUE$TIOlliED I)OCUM ENTS . Ilal'ldwri,ing. typewrit· ing. and related e ... minations. In .. ma· tionally court qualiJitd expert Wltl1('S$. Diploma'e. American Board of F""",s;'; Document E....mi ...... Membt" Ameri· can Board d. .·"",n.ic Document Exa· miners. Membtr: American Society of Qu"'tiontd Document Examiners.the In· t... national A!>S(ICiation lor Identification. the British FOI"ensic Scienct Socitty. and the National Association 01 Criminal Dtf, ns- Lawy"'" Ketired Chitl I)ocu"",nt E.. min .... USA CI Labontonts. Hans May... Gidion. 218 Morrymom Dr1'·e. Martinez. Gtorgi. 30907. (404) 861J...1267.

FOR SAl~:: Federal lst 2<1 Suwl""",nt. Amjur 2<1. Amjur Forms . ALR 2<1 3rd. CjS. USCA. Lawym ~::dilion U.S. Su o Pf"m",. Southern lst . • !c. All National Publicalions. Libraries Pun;h;lsed Na· lionwide. Prol""sional Bookl; Service. IIox 366. Dayloo. OH 45401. (513) 22J.3~. STRIJCfUR,U .. E~GI N EER /CON. SU l T ANT I F.ilu," AnalysllExPl""l Witneu . Ph .D. in aP!llitd mechAnia. Alabllma registered !It"of.ssional engineer. Experience in cOO"" & standards. producl li.bili,y. and failu re analysis of illdustrial equipmen' and Structures. coost,uction. mari .... pipeli ..... 1Id !If''SSu," v.... ls, National/ inlernatiofl.lexpet"ientt. Dr. Samu~1 j . Brown. PoE.. Q~:!) Corp,. P.O. Box 1275. Cm;by. T~xa. n532. (713 )

lJ-:GAL RESEA RCII alld writing_. vice. Net'<! help with a deadli",,? 1 ha .. s-ven yeo .. experiente in ~I ....... n;h alld apptllale wriling. Ac<:css 10 lhe la'll' est law library in the State. plus com~lo r data ha"". Rates $3OIhour. Sacao Ka · thryn Farnell. 2 Woodlal'ld Hill • . Tusca· loosa. AL 354OCi. Phone (ZOS) 551).1 451.

CO URTROOM GIt,\ I'IlICS. Maps, chart • . va!'hs. phoc05. scale I'I"I(Idels. e'C.

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