Lawyer 5 87 web by Alabama State Bar Association

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The Union Bank Trust Department. Your Hometown Advantage. Come Homero Us. UNION BANKI 1I~'IO~"""'1(.TII.'SfCO

. 1oIO."I'CO!o1EIfY AI..AIIA.\IA,MDIBUf1JIC

Schroeder, Hoffman and Thigpen on

ALABAMA EVIDENCE INTR OOUCTOIW Pfllet

569 .96 Regula. lv $74 96

by William A. Schroeder. Jer om e A. Ho ffman and Richard Thigpen

In thiS c omprehensIVe DJ(omlfl(ltion 0 1 the rule s o f Alabama EVldoncB. the lIu thOI S prosorn an In-doptl' discussion 01 aU areas

01 evidentiary pr ocedure s from the reilltively Simple way s to objec t to evidonce through compet ence, pflvlleges, relevlIJ'!ce, impeElchment, the OOs\ eviclence rule ond parol eVidence Meny sectlo"s co" ta,n a dlscuS810n ot Federal law and how 1\ compar"'8 to lIS Allibort1 a coun tOrpart Case law IS Ihoroug illy Cited through out th o book, A" el<collom rOfOIO"CO 100 1 tOI both the inel<perienced and vetoro" lawyer!

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T_ble 01 Contents - - - - - ,

Oble!nln", Ollonng and ObJ8Cll n.g to hldenca ' Competence • bllm,na llon 01 W'I!IllSS9' • Re!evllnce lind Llnll l ll1l0 n , 0 1\ Ille Admltaion Or

Relevan t EVidence ' Pllvlleges • Impeachment · Ellport Te'llmo ny • HOQl88 V • Aul henlll;a t ion

IJlld Idon \,II Cll l lon - Rule. 90 1, 90:2. 903 • Speclel Rul o, Relati ng to Wl i1 lrlOs T ~e 6e81 EVid ence Rul e lind th e ParOl Evi donce Rule -R oe l

and OomonSlfllliva Evldonce ' JudiC ial Notice · Presum pti ons Bur do ll' 01 P, oO I (Hid

Per suasion

About the Authora _ _ _ _ _ _ _ _ _ _ _ _ __

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Buy Schroeder. Hoffman and Thigpen on Alabama Evidence and gel 30 % OFF any of the trea l ises list ed below : Gamble & Corley', Alabama Law of DamageB ' 1982 '",:1 cur supp) ""79 Stt S66 .96 McCurley &0 DaVIS' Aillbilma Divorca. Alimony &. Child Custody ' 1962 (wI cur supp) .$67 !}!t $47.56 H~n s 'ord 's Tflltly '. Alabama Equity 2nd Ed. · '985 $1995 $34,96 Hoff 's Alabamll Limitations of Action s &: Notice PrOvisions · '984 (w I cur supp ) .$3795 $26 .55 Hood, Herdy & Seed's Alabama Workmen'. COmps"sltion ' 1982 (wI cur supp ) "'" 9ft $31 .45

1----- ANDIOR

get 40 % OFF any of "The Law in . , "se rie s li sted below : -----I

111 1961 ('11'1 cur supp ) ..$2S 9& $16 ,15 We/thDII 's Corporations - Formlltlon With Forma 111 \98\ (wI cur supp.) 9& $' 6 ,' 6 Hsrrs ton 's Oellnus, Executions & MechanicB' LienB 1111980 {wI cu r Supp I '2S 9& $' 6 ,1 5 Jefffl(}$' Enforcement of Security Interelu in Perl onsl Property ' 1900 (wI cur supp) -&2695 $' 6.16 Husktly & Etheredge's Landlord & Tenant - Breach &. Remedla s 111 1981 -$11695 $' 6 .'6 Jof(rr8s ' Wrongful Oeath Actions 111 1979 (wI cur supp.) -S26 95 $'8.'6 J8fffl8S & W,/kms on 's Collection of Accounts

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The Alabama Lawyer

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The Alaham11

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All aflernOOI1 view of lhe new Montgomery County Cour1· house, scheduled for operaTion thi s month-

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Postmaster: Send address changes 10 The Alal><lma lilwyer, p,O . Box 4 156. M ontKomery, Al 36 101.

The A/abaml Lawyer

The Filir Debt Collection PracTices Act 1m· l:lOses Ilffirmtltive duties upon attorn eys represellling crl-ditols. lilwy~rs with even tI minimal deb! coll~! iOl\ prac tice must be aware of the pJrameters of this rict.

Publi c i n st itutio ns cO l1t Cnl l)lating diSdl)llrwy aC;Tlons .. gainST students must aCTwllhln the confines of tilW. Dlie process protecTions ex tend to student d SCil)linary hearings.

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The Due Process Rights of Students Attorney liability under the Fair in Publi c Sc hool or College Debt Collection Practices Act- by Disciplinary Hcarin~s-by Albert S. William S. Shu lman ..... .. 134 Miles ............... , .. 144

INSIDE THIS ISSUE tnterview with Bill Scruggs .. , . • .. Consul1.ln t's Cotner . . ........ EKccuti ve Director's Report . ... . . Editorial .. , ... ,...... Abou t Members, Among Firms ... RldlnK the Circuits ... ,., •..... Btlr Briefs. . . . ....... .. . . . .... R(.'Ccnt Decisions .. ... . ... , de OI>PortuI1ITles ., . . , . ....•.. ,

t 20 126 127 128 130

132 t 33 14 7 152

Disciplinary Report Commi ttees . .....•... " . Survey of Alabama lawyers Young lawyer1i' Section ...•.•.. , legislative Wral)oup ..... , . . .. . . Opi nions of the Genera l Counsel Memorials ... ..........• , .. . Cla sslned NOtices . ... . . . ...... . M ClE News . . .... .. . ...... ,"

157 158 160

173 180 182 164 186 186

Interview With Bill Scruggs nce the /lew prt!sld(.'nt of 1111.1 A/,loam,l 51.11e aM offlcl,llly wkC$ over ,lIld Vcgins to gct a reallJrasp of t,~e office and lu responsibilities, Tht Alllbama Llwyer attempts /0 interview him. Unfortunately, due 10 schCldulinH conflicts. the edilor of the Llwyer, Robert /-Iuffaker, and 1986-87 bar pres/dem William D, 5cru88S, /r., hiJvc bc<>n unable 10 di$Cu5~ SCru88S' telm unti/ldsl month.

BIOGRAPH Y: WilHam Dayle Scruggs, Jr., born May 29, 1943, fori Payne, Alabama; son of Or.•1nd Mrs. Willi;lm O. Scruggs, Sr.; nttended Baylor School In Chananooga, TN; graduated from University of Alabama, 1964; fLocei\llod law degrt.-e from Uni\lClrsity's School of low, 1968; M!{~r brief I)(!rlod of sole practice, Pilrtner In firm of Kellett & Scruggs, FOIl Payne; September 1975 forllled Scru88s. Rains 8. Wilson; following election of Rains and Wilson to bench, formed Scruggs & Br(,M'nficld. Served In u.s. Army; continuous member board of b..lr commissioners since 1974; 2nd vic:e prt.'iident, Alabama State Sar, 1978-79; vice president 1981-a2; chairman, MClE Committee, 1979-81; chairman, MClE Commission, 1961· 84; member, ASa becut i~ Committee, 1978-84; mernber, ASB Suweroo Court liaison Commi ttee, 1981; chaIrman, ASa Supremc COurt Liaison Committee, 1983; recipIent, ASS Aw.m.l r:J Merit, 1982; member, (advIsory ooard) board of b1lf cx.lmlners, 1981-85; judge, Alabama Court of the Judiciary, 1984·present; former member Young l.<Iwyers' Section, ASB; four consecu tive terms, Exccuti\lCl CommitILot!, YLS. Married to former K<Iy Millone, learning dlsabllitiClS Instructor; one daughter, Shannon Harriette Scruggs, freshman, UniwrSity of Alab.lma; primary outside intercsl- blggame hunting-with tril)!; to Africa, Europe, South America, Iran. At;

Now tha t you lire nearly three.quartel'i of the w;ry through your term, is the Job as president of the statc bar whm you expecteclr Scru ggs: I have had Ihe benefit of serving under 13 presidents as a bar commissioner, but quite frankly, it does take more time and lravel than 1 thought.

At:

120

I am sure you SCt SOIl1C goals when you took <7v'Cf l1Spresident. and now that you arC! 'lv'(!11 into your lerm, what do you th ink have beClIl Ihe major accomplishments of your admlnlstriltlonr

Scru ggs: I hope we witt httvl.! the IOlTA and the C!lents' Security Fund progranlS In place this yellr, llnd our b(lr>sponsorcd malpractice Insurance program Is oock on track. These programs, of course, were commenced by previOUS presidents, and just now arc coming to fruition. I bell(M! we will c:omplete a major revision of the committee, task force llnd section system Ihls year, which should pay dividends in the future. Some commiueei are simply too IMge, and we deSI>Cfately need to Improve the c:on tinuity of projects and commi ttees from prosident to presi dent.

At:

Whm Is the status on themall>r.1Clice InsurOlncc L-overagcl Scruggs: 'v\t: have a malpractice policy written by The Home Insurance Company, endorsed by the Alabama SIOite Bar and, by the language of the policy, Il ls probably the besl in the Industry. The rates are compctltlve In the SClnse Ihev are not more than other companies typically charge. They are not good ra tes because they are high, but (1\ least they ,He not out of IInc wilh other high nltcs. II-k, of course, arc continuing to study the possi bility of fOrmation of a c~ ptjve Insur> ance comparly in AI'lb.1ma 10 pro:ccl lawyers.

AL:

I guess thai would be similar to MA$A, like the doctors have? Scruggs: Yes, it should be similar to thllt plan. There are some technical problems that 'Iv'(! ~ because the bar is a state agency, and 'Iv'(! do nOI h~ tim IClgisliitive -iluthority to form insurance companies. There also are sonm I>robtems regarding recciving monL'Y or cKpendlng funds for the formlltlon costs. Thescllrti prOblems unique to the bar and will take some time to sol\-'(!. Is there some sort of task force 10 COntinue to monitor this situationl Scru ggs: There is. We h.we in place an Insurance committee under the chairmanship of Henry Hen· zel. They hM devoted an tlWaordinary amount of time and energy to the whole problem. They 'lv'(!re Instrumental In securing the p.lrticipa tion of The Home Insurance Company, and il also is the same committee presently charged wi th Ihe responsibility of looking further nto the captive Insurance market.

AL:

May 1987

K'lY, Bill and Shannon Scruggs

Do you know what perce"\lage of lawyers in the state have their mall)ractice CoYerage through the bar's endorsed carrlerl Scruggs: ~ do not haYe that precise Informati on bKause there ;,I.re 11 variety of anniversary dates for pollcles, and we have no reliable Information about the total number of lawyers in Alabamll who have no cowrage al all. We do know 11 su bsl1lntlal number of our members do nol have any malpraetice Insurance coverage, lind the figure would be somewhere between IS and 30 percent.

offer some protecllon to the public. P~menls from this fund would be a maner of gr.lI;e and not a matter of right, and the fund would be available to ccwcr intentionallhefl and intentional fraudulent acts 01 a l;r.yyer If there Wl!re no other source of re(O'Jery, The client 'M)uld have to exhaust all o,h~r remedies before the claim could be considered.

AL:

There were discus~ions a year or ~ ago about selling up a fund to provide payments for c lients who have suffered losses as a result of lawyer malpractice, What is the status of that? Scruggs: The Clients' Security Fund will be the subject of a hearing before the supreme court In April. This fUlld COVlJrs a gal) in client protectio n, Malpractice policies generally exclude, (or Instance, willful thefts of clients' money, and the Clients' Security Fund would Al;

The A/aOOma Lawyer

\r\buld that require legislation? Scruggs: In our opinioolt 'NOuld not. It would be, In effect, a dues increase to be held by the bar for the payment of those claims.

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Do you see the implementation ollhat program In the near futur(!l Scruggs: I hope it is implement(!C/ in April. I trust the supreme coun appl'Ov'CS that rule.

AL;

AL:

Earlier, you mentioned ton reform, What has been the stille bar's position on thaH Scruggs: Traditionally, the Alabama State Bar has not taken a positioo with respect to contlO'o'CfJial legislation. 'vVe geherally have stayed out of

121

Scruggs: The Ixwd of bar commissioners will meet April 15 to gOUYer all these posi tions. 1ft had to halafd a prediction I would say, ger\er<lIIy, the bar would not have any opposition to the abolition of the scintilla rule, AL:

What aboutlhe venue bill whi ch, in essence, would adopt something similar \0 the forum non-eoflw:nlens doctrlne In federdl courtr Scru ggs: I think as a general statementlhe bar would no t be opposed to a forum non-eollvcnlcns rulc so the triBI court could refer a C<lSC 10 a more convenient location, W hd' do you see as the bar's position with f\.ospcr:t \0 legislation imposing a cap on dllmage ,lwardsf Scruggs: I think the bar would be opposee to caps. C'ljJS may become noors. Cal:lS, at le,l st in jury trial s, m<ly 00 unconstitvtit)nal, (lnd Oltly be higher than the Ilmils of I)aBcies. There have been caps on personallnJuty cltllms against municipaliTies (or years, yet the Insurance premiums for ci ties have continued to rise,

AL:

the legislative process. The feeling of the board of bar commi ssioners was recently expressl>d, hQW(.'VCr, wher1 they una1\!rllously voted to participate In and rcspond to the various " tort reform" problems, The commi~ sion believes the proposed changes directly affect the ;rdministrillion of justice to such a degrw !hill the bilr Should respond. The w ne bar, therefore, will p.'lrticipatc In or al least comment on the vnrlous bill s and pllckages, ;\L:

Is the position pro-plaintiff or pro-business or somewhere In the mlddl~ Scruggs: 'vVc hope it is simply I)ro-justice. Fr;rnkly, there are some Chi.lnSe5 thM a majority of I(!Wyers 11'1 Alabama would favor. It is very importan t that th e end result be workable and reasonable! for all sides. I haV(! been ple!asan tl y surprised that lawyers (rom the plaintiff's bar and Ihedefcnse bar whom I haYC talked with and had meeti ngs wi th genemlly have, if not a COllscn sus of Ol)inlon, ;rtl east;r plurality of Ol)inion as to what response INC should give to the V<lrious positions. I have been pleasan tly surprised by the! rell SOMbicness ltor'ld though tfulness everyone h;rs shown,

AL:

Let me ask you ;rbout some of the spcr:ilic bill s, Undol,lbtedly olle of the bills 10 be offeree witt call for the abolition of the scintill a rule. What Is thc bar's position on that?

Will th e bar's position be that therc should be insurance reform as a oonditlon fOl' obt"inins any tort refOrm r S(rllggs: I canno t sp<!,lk for the commission, but I doubt if the bar will concern it5elf with insurance r(:f{)rm lit thi s tim!}. AL:

What is the status of the reapportionment of the membership of the boO!rd of bar commissioners? Scruggs: II has been real)portioned. We have the lawyer popula tion certified, and currently car\didarcs are runr\lng for the Increased scats on the board o( bar commissioners. The first (eapportloned commlsslor'l will be COMtituteel July 1987 in Mobile, ThOll already h;rs been ar:r:omplished .

;\t;

AL:

Do you think Ihe bar commissioners, as a whole, <Ire respon s i~ to the n~'(! s Qf Aliibtlma lawyers? Scruggs: I think the bar COmmission is quite responsive, Based on my knowledge and conversO! lions with bar presidents from around the COl,ln!ry, the Alabilmil Bilr is wi thin the tOI) thr/..'c or four bar associations in the country, llr)d 110 Or\e group of lawyer'5 dominates the

Mav 1987

board of bar commissioners. In my opinion, it Is the best deliberative body In this state.

Do you foresee our bar is gOing 10 bocome more publicly active in Issues such as tort reform and, 5pt!Cifically, do you think the bar should become ifM)l~ in evalulltlng candidilles for Judidlll office? Scruggs: I do not think the bar should become involvt.'tl In willull tlrlg candldmes (or judicial offi ce. The b..1r commission has looked at v<ar· 10U S proposals over tke years, and they all have boon soundly de(elltro. We have not seen a system that does not have some inherent vice or 'hat is not subjcctto <abuse. ru a pr.:actical maller, members of the bar In· formally particpilte in the evaluation of ludges, bccau~ most knowlcdgcllble \l{)te~ will ask their attorney or lawyer friends what they think about iI pilrticular candidate for a iudicial oIfice, so lawyers ill ready have great Input into that process. AL:

thoughts as to whether that should be published in newspapers. Obviously notices stili WQ(Ild need to be published In the Lawyer. On the questioll of discipline, we also are looking at increasing the number of choices a disciplinary panel may hOM! in pun· ishing it lawyer, possibly to put tWQ more Stcps OIl points In the process. Currently, we have a private informal ildmonition, II priv;lIe rcprlmilnd, " publiCccnS(Irc ... and then ~u !o l>enslon or disbMment, There is some fcel· Ing we need one or two mOre options In those ICVI!ls of punishment. Gencr.llly speak· Ing. the s~lCm we hOM! in AI<aooma for lilWYCf diSCipline has been copied in whole and In part by a numbcrof Other states, and n<lUonal· Iy we h<lve il rCI)utlltlon as having one of the beller systems of lawym discipline In the country.

Do you think the bar should SUPI)O(tlcgislaUon pf(1<liding for nOI"l-p.'rti~n selection and erection of judgcsl Scruggs: 1Wo years ago, the bar Commission approved and recommended the non.partisan election S'fStem for judges. There was 00 great support 'or this bJlI among members of the judiciary, and until the judges Ihemsel~ wan t to change the syslem, there will nOt be any movement on this legislation. AL:

Are there any other areas the bar will be supporting In the legislative arena in the upcom· ing session? Scruggs: Other than having a position on the issues il'lYOl...ro In 1011 rciorm, we have no Icgi sl<l\h~ program for April and May. AL:

Every issue of The Ala/xlma l.nwyer carries repotlS of I~r censures, disbarments and other disciplinary actions. 00)00 believe the diSCiplinary ptOceedings arc adequate to police lawyer Ilbusesl Scruggs: I have a smlliitask force looking at tha t situa. tion right !lOw, and one of the questions \o'oo'e have is whether the publication of public cenSllres and disbarments in nev.ospapers Is productive or coun tCr-pIl)dUCli'o\!. ~ have had the poSition th;1I we want to be open about I~r discipline, but we have some socond AL:

Th e Alabama Lawyer

••••• ocp

- '-..- _--

' " 1 ~""¥I" CO-GNU,,... ""!AIlING CD.

.....

123

Since a large scgment of tke b;\r 15 CQmpc>Sl!d of auorneys under the agl! of )5, do you tklnk the bolr Is resjX>nsl\o1:l to the needs of its ~ung er membersr Scruggs: Especially with rea pporliooment of the board of bar commissioners, you are going to see more and more influence from younger members of the bar. There are ~ members of the Alabama bar who are und~r Ihe age of J5 than there are OYer J5, These younger members ha\o1:l the skills, energies and abili· ties to direct Ihe stale bar and they will, in fact, do 50, At:

Lawyer advertisi ng is becoming more prt.'Valent. Whal Is the status of ad\o1:lrtisi ng and specia lization of lawyersr Spoclali1.iI1lon Ig ad'>(!rllslng. You cannot have Scruggs: spccl;llItation withoul advcrtisirlg Ihat specialty, so It is the same th ing. The bar historically has limited advertising to Ihe limits set I1t the United States SUpl'eme Court. Whatever Ihe court permits Is as far as tke state bm has e\lCr gone, The right of commercial free speech Is an evolutionary right, the limits of which have not been completely established by the cou rt. Our mOSI recenl SUr\'CY of the members of the state bar revealed 84 percent are oPposed to advertising. NJvcrtising is very difficult to police, and you cannot write a rule thai requires good taste in the ad.

will 00 and \'Ie do nOI have to wail '-Intil the July bill convention. So, for the first lime we will hilVC at least tWO and one-third years of conllnulty. 'M:l kn(MI who the presidenl-elcct will be injuly, Uen Ilarris, and we know G;IIY Hudwby will be the president a year from July, so there Is an opportunity 10 COQrdinale all these various projects with a lot more foresight and pl.lnnlng,

AL:

Are there any unachieved goals you hope to accoml)lish in your remai ning three or (our months of service? Scruggt: It will depend on the supreme court's hearIng on IOlTA, the inter('$t on 1:r.v~rS' truSt accounts and the client St.'Curity fund. 'lIVe also have the continual j)roblem of the nonaccredited law schools. Under rule 4(c) of the rulus of admission it III)PCIH5 there cannot be any resolution of that continuing problem within !he nexl \hrt.'C to four months. It should be Ilotcd Ihe IOLTA Md clienl security fund arc progl,lrllS started prior to my being the I)rcsldcnt and involve a long history of wQlk by prior presidents and committees. Obviously It lakes more than ooe year (or some of these things to be accomplished. I might add the new governance syslem \'Ie naw have has the additional advantage in thaI, if there Is nO contested election, ......e know by March I who the presldent-elect

AL:

124

You mentioned unaC:C:rt'(Hted law schools. and that has been a problem for a number of years. 00 you sec thaI being resolved any time in lhe future? Scru w: Frankly, I do nOI. There are th ree unaccrediIL>-d law schools in this st,lle, and t'oYO ao:redlted. The sheer number of lawyers admitted is not the real problem; the actual problem lies in the qualifY of Inc education our law students arc receivi ng. and the number of P1-'Ople who spend substantial anlounlS of time and money at an unaccredited law school and (.1nnot 1)'155 the bar exam. These arc really serious problems to us and, unfortunately, I do not $eO any change in Ihe ncar future.

Ai:

Do you think Ihe public perception ollilWyers has changed any In the last sevcral years? Scruggs: 'Ne h{lve spent a lot of money and time in the last 15 years on surveys and public ~ Ia t jon s to improve the lawyers' Image. We always come back to Ihe fact people like their own lawyer and dislike other lawyers. It 15 endemic in OUt ndYCfSarial system Ihat there is a liwyer "on the other side;' and human natUie bein~ what It Is, people do not like their opponents and they never will. Interestingly enough, people who have ncYerdealt with lawyers still h~ a high opinion of lhe professlon. ln reality, there probably has been no change in the public's perception of lawyers in the last 15 years. •

Ai:

May 1987

When you writc wills, trusts, and cstate plans, you want your soure,,"'S to be as orga nized and ns comprehensive as possible. Thnt's why AmSou lh's all new second edition Will nnd TrUSt Form Book is bound in separate volumcsof wilh; and trusts. It includes lwentywninccompictc docu ments ta ilon..'CI to Alnbnma law - far more than any other Alabama form book gives you . We also provide you with parallel wmmentllry on each document, particularly helpfu l in estate planning. Best of all, it's updated regularly to enSurc continuing m.:eumcy. For morc information or to order, c.111 the AmSouth Estate andil'lIst Planning Rcprescnta tive in your area, and talk to someone who fur )6urGrowing Needs. speaks you r languase. w

AnnlSlQn l,M.Y:W() Uirmingh.om JU.53$() Dcatur 5514319 Doth.n 79~ Huntsville SJ5068J7 Mobile <lJ!WI069 Mom.gornef}' 83<1-9500 I 1987 AmSc;Iluh Uank. N.A.

Mc:m~'

fOIC.

Consultant's Corner The foliowin81S

review of and com-

men/My on an office au/omalion issue with curren! import.mec 10 I/le Icgill commvnlry. PfCP<lred by lhe office aUla-

mallon consullJn! 10 Ihe slaw bar, Paul Bornstein, WhOle views arc nOI n'cccssarily those of the slate

bar.

This Is the Ihlld article in our Consullilnr'$ Corner series. \Ilk would like 10 heM from you, both 111 cdOC/ua of the ar· ficle written Md sU88CstinS foplcs fo, (11-

lUre arlicles. Tele phone Charges Ncrc comes Ihc bill. More Ullln 30

days after you

made adient-

chargcable long distance telephone call, your bookkeeper dumps a sheaf of call

detail slips on your desk whh the chC<!r(ul reminder, "\r'ok cannol close oul billing for thc mooth until thc phone char~

are

j\lIocated,~

Fold it inlo you r ral es This is done with some overhead (Ole· tors, such as the COSt of word processing. On that basis, you should raise your rates about $1 per hour, clearly an impractical 1l001on. Fiw dollars 'MJuld be outrilgoou s and cause you more grief thiln profit. That aside, clients are not as acccpting of r,lIe Increilses as they once were; In fact, one is hard l>ressed to find any client who Is not downright resistant to rate In· creases. On the other hand, charges billed as an adjunct cost of business are traditional and genera lly acceptable to clients. Aftcr all, they make phone calls (and copies .. nd mill! packagt.'$, i'lc.).

You toy with Ihe

idC'a of iI mid-c.1reer changl', perhaps a position with the telephone COmp.,1ny. You n:!jecllh"t (narrowly) and return your attentlon to tOO pile ol detail sUps. begin. ning a laborious task of m;lIchlng your time slip notatlorlS of long distance caUs to an infurlaUnglst of dllles, area codes and eJ(changcs. But there Is more-whm about the call you made from the airport, usi ng your peoorlal cn.>dlt cMeH The col· Icct call you IlCCepled lit home on a Sllturdoy afternOOrl( The calls made on Mctl (This is lust the AT&T bill.) 00 not I;;hange careers-Ihure are Illternatl\ICs. Igno re it This can be temptlrlg. After all, why waste an hour (or more) of alaw~r's time chasing small change? 'Tbu should (or the same rcason you ought to chase I;;opier charges (see March issue); they add up to a significant bottom·line profit contribution. Our studies fC\ICal that law firms incur more than $150 per lawyer per month in phone costs that should be re-

126

CI;NCr.. ble from clients.. Ignoring does save the lawyer's lime, bol It illlCMIS more than twice the cast to slip <rNJof as missed profit opportunity.

High tech it The key to capturing phone charges with a minimum of effort iS la record the entire tranS(ll;;tion at the time it occurs. As you place a call 10 a client you obyiously know whom you are calli ng and on what manct What you do not know 15 the long di5tance charge \'UUr long dis\i1nce carrier Is running up for you . Conversely, the telephone company knows the charges but not the dlent's name or maner number. Enter high tcch -~me telephone Switches hilVe a feature cul led SMDR (st3110n message distribution rl.'porting). The (catur<! accumulates a rec· ord o( who (which stilliOn) plact.'<l a long diSlilnce call and hoo' many minutes Ihe cilli lilsted. This Iistirl8 begins to get 10gether the two pieces of the equation, With some creativity, you can enter client/milner number through a phone instrument, prior 10 dialing the number. The SMDR record produces a monthly list for manual cnlty into the billing syslem.

T,lking the process a step further. (or a I)rlce, some YCI"Idors oIlegal,spc(ific biUing programs offer some inlerface software Ihat dynamically captures SMOR Information and automat cally updat[$ a client's bllling record. This is a technique only for medium and large firms. It requires a digital telephone switch, SMOR, a mini-compUl(!f-based billing system and a great deal 01 discipline!. The disc!I)Une Involves having to dial in client and maner number as a condition of accessing the long distance line. Needless to say, some law~rs (ind Ihat a bit much. Low Iceh it I( you me not a large firm, nor Intcrcs ted in acquiring a digital telephone switch nor II mlnl-computcr, Ihere is a perfectly sound procedure you can adopt, and it does not cost anylhirlg. Assign a standilrd cost to long distance lelephone calls, and automatically trigger the toll charge as you habitually fill oUllOO slip for \'UUr professional time. A slandard COSt Is sinWly an i!\Ierage thaI is easily computed IYf dividing tQlallong distance charges by the number of calls made. If you Me a typical firm yOur average co~t will be in the SI.50 10 S2.50 range and not an unfair burden (or a clien t 11W01~ with a brief conversation. If you do nO! habitually charge for time spent on phone (;Ills, thet\! is i\ quick cal· culation Ihat should instantly disabuse you of th(1\ practice; how much fee Irl' come is lost from Ignoring IS minul~ I)()r day (at $80 l)Cr houtH Would you believe $5,000 l)Cr yeMI The sinBle pro(esslonal time charge you now habitually generJte pursuant to il client phone convcrsallon Ix!comes two tr,lnsaClions, onc (or your time tlm;1 onc for a stafldard long distance chtlrge. II does become nccessilry to distinguish these dualtransacllons (rom Ihose where the client caUs you Or from local ca lls. Consider .. Irigger such as ''STO LDTe on \'UUr lime slip. You h~ locked in billablc long distance c hilrge~ 10 your professional timekeeping. Now you can smirk OIl Ihe bookkeeper. • N

May 1987

Executive Director's Report Professionalism and a Shrinking Volunteer Base

resldcnl-clect Ben Harris, Jr., Ill1d I attended the ten th annual Bar Leadership Insti tute sponsored by the Ameri can Bar Association in mid-

March. Thi s Is a work-Intensive session for Incoming presidents of Slate and local b<H associations where Ihey arc briefed

on cmerslnglssues within our profession and, through workshop par1ldpa!1oo, 11m given an opportunity 10 learn how Others have met dloll1enges of the profession in limes paSt They also leilm of current PfOo

gramS for meeting the profcssion's public and pro(...-ssional responsibilities today and In the fu ture.

This was the ninth BU I have allended . I was privileged to serve as a charier member of the ABA Standing Comml!-

Ice on Bar Acti\lilies and Services thai

created the institute and, since my tcrm t"Jn Ihe committee expired, I or!en hove bron Invited to be a program parlicip..lnt I always enjoy mcc!lnK with my coun terparts throughout the coun try, thouKh I leave the BU more al>precln!ive than ever of the voluntccrs who In reali ty glw UI) a year or two of their prilctice to serve their fellow lawyers. Thi s year wn s no exception. An inue never before raised In the Institu tes, but which f(.'Ceived considerable allentlon thi s year. was the "shrinking voluntccr base," a fancy way of saying there are fewer workers willing or able to assume the numerous selVlce and leadership roles within b..lf assoclallons. Reasons for this new phenomenon are varied. Spt.'Claliy bar, minority bar and

The Alabama Law(cr

local bar Interests are Supplilllting slate bar activities in some jurisdictIons. This is essentially fragmentation wi thin the profession . The cost to the volunlccr in actual out<Qf-pockel expense, not to I'nontlon a loss of billable hours, WOlS another suspected ca~SQ. Civic endeavors and other outside interests provt!d more anractlve to others. In SOrlie 1'100professional aCTivities the specter of persol1(1lli(lbility for one's actioos deterred others. In The Alabama Law(E'f, March 1987, President Scruggs noted, " The miljority of accomplishments and su<:<:ess of our association is due to Ihe volunteer <:ommillcc work of our membership." Our bar has a hlslory of unselfish service and e)( traordlnary lel'ldershlp. I urge you to Insure thai we do nOI face tht'! shrinking volunteer b ase that others are experiencing. As I prepared these comments, I rec;~ived the silcI news of M[lrvin Albritton'$ cleiuh . M [lrvin wa~ over 70 i1nd actively serving our profession. He had done so much-and yel he malntllined a successful and very active practice. He "Iways found time to share good times with his family , and Arldalu sla had a first-class ci tizen who made It a bener place in whi ch to live Following his service nine years as bar commissioner from the twentysecond judidal <:ircuit, he was one of A labama's reprcsental ivL'S in Ihe House o( Delegatt'!s of the American Bar Association for six years. l ast ~ar he ac-

HAM NER

cepted the bar's nomination as a judge on the court o( Ihe judiciary. These were not just offkes, titles or mere nlieB for his Martindale listing. These were opportunIties to serve his profe$sion, which he d id well. Marvin Albritton was special, as Is his family. I actually was read lnll the history of his ntm when news of his deiJth rea ched me. His firm hilS OOcn in continuous exi stence for 100 yeilrs; in Ihe laSI 18 alone, It has given U$;r, Sta te bar presiden t in his brother SOD, a bar examiner In his brother 3m, another bar commi ssioner and sunc bar vice president in his nephew Harold and, In the

newest generation, a commlt:ee member in great.nephew Hal. The Alabama bar wm never suffer a shrinking volunteer base as long as there are Albritlons and those of equal commitmenl who cootlnue to serve.

127

To those who .....ould demur Ihat Ihey, 100, could gi~ time wHh Sigtlificarlt suppon from a firm, I .....ould polnl 10 such

sole pr3dllloners as Mihan Davis. city al· lorney Rowena Crocker and P.1St presl. dents Hornsby, Roberts and North and, yes, our currenl president, Bill Scruggs. Former Presldenl Bill Hairston, Jr., once described a professional as "one who puts In more than he takes OUl:' Elsewhere In this issue you have an 01>ponunlty to respond to Ben Harris' call fOr volunteers; history tell s me you will respond magnificently. There will be special calls for help throu8hout the coming year. I know clr· cumstances will eJ(lst when you le8itl. mately Cllnnot respond, but there will be other opportuOilics whi ch should nOl be los t. Llkl'Wisc, if you accept a Job-do II. The one concern Ihtlt t ~ from observIng this year's bar's activities is a higher Ihan desirable percentage of absences at scheduled commillce nlcellngs.

In this day of concern for Images, ours will ~r be better than when we~hlblt Irue professionalism. NC,M' Is Ihe time to "Ilut In moro." P.S. Have you organized or reilctivilted a local bar latelyr - Reginald T. Hamner

Editorial Edilor: For a number 0( years I h~ been n IIrt man subscriber to your Interesting publl. ca tion, While I r~ently retired 100 percen t from Ihe lnsur,mce agency field, I still am interested in keeping up with the ~r'(!C\'Cloping sta\UlOfY and C.1SC liJY,Iln Alabama.

prosenta THE 27TH ANNUAL SOUTHEASTERN TAX INSTITUTE

June 4, 5, e, 1987 Marriott's Grand Hotel, Point Clear, Alabama TNs In"ltute will leature thrH natlonally·known talC eJ(pena, Thursday, June 4

R.el Ettete Teullon 'Hues Raben Gottlieb Tuck$f, Flyer. Saf98r & lewis wuhlngton, D.C.

Friday, Juno 5

Es,ete Plsnnlng Issues Jellrey N. Pennell Prolassor and Director, Groduate Program In TalC Emory University School 01 l aw Atlenta, Georgia Corporete T8utlcn Issu.. Ira Shepard University 01 Houlton Houlton, TaKes

Approved lor t2.0 Alabama MClE credit hoUri. elE credll applied lOr In Florida, Mississippi & Georgia.

For more In/ormation con toct Alabama Bar 'n"ltute lor Conllnulng legal Educa· tlon, P.O. Bo~ Cl. Tuscatoosa, Al 35487, (205) 348-6230.

128

The foliowinH Is a ~ry brief recounl of a famous "Ia'NSult" of the 1870s, in Ught of teday's verdlclS. II occurred to me Ihal you ml!!ht find a spot In an edition to afford a bit of relief from the constant· Iy increaslnH problems of the day. -Stephens C. Croom, CPCU Mobile, Alabama March 6, 1987

A bit of relief

THE ALABAMA BAR INSTITUTE FOR CONTINUING lEGAL EOUCATtON

Salurday, June 8

(I might add that my srandfather was a presidl,.>nt rJ Ihe Mobile Bar A5soclation back In the 1880s.)

Multi·million dollar verdicts are not new All the hendllnes In recent months about linbility verdicts soaring into the multi-million dollar lC\'CIsare written and read as news, as if It W.1S the first ever, but such stories completely Ignore hiStory. Saini' Indude n reference 10 a county In Alab.lnla as home of one of th e three mOSt c~pcnslve 'lCrdlclSrn the nation in the medical malpractice area, but they never mention Ihe fact that one of the 'Mlrld's first multi·millioo dollar liability "lawsuits" was seltk'CI (M.'I' 100 ~ars a80, and also imolvcd Alnb.lma. This W.1 5 the historically famous ~ALABAMA CLAIMS~ case, United Stales vs. England, for the losses. suffered by our merchant neet during the Civil Wilf, caused by ships of war bl,.rilt in England and sold to the Con· federate Stilles of AmCflca. The beSI known of such warship; was the CSS ALABAMA commanded by R.lph<lel Semmes.

The claim was he;ard In Geneva, Switzerland, and resulted in England's paying the United States the sum of $ 15 million. Of course, what they called "reparations" In those d~ would have been "damages~ today, Nevenhcless, wh<lt is most signficanlls that $15 million in the 1870s .....ould C<Iual somewhere in Ihe mulli-hillion dol/ar mnHe today, If }QU could find till IndelC 1,1ble dati n!! back over 100 years. •

May 1987

Bar examiners begin four-year terms New bar examiners, elected rccently

by the boMd of bar commlssloocr5, Included E.L. McCafferty, III; George M . Taylor, III; MictlJcl A. O'Brien; and

Michael S. Burroughs. The new ex· amincrs began their (our-year terms with the Februill)' bar examination. A brief biogrJphlcal sketch of each follows:

McCaUerty E.l. McCafferty, Ill, Is a nallve of Mobile and a partner in the firm of Inge. Twitty, Duffy & Prince. He anended University Military School in Mobile, Sou'~'ern ", Memphis, the University of Alabama ilnd the University's School of law. He was adml\led 10 the Slale b:ar In 1970. After gradulltlon from law school, he was employed In the trust department of

a Mobile bank and thcn clerked for Alabama Suweme Court Jvstice Robert 8. Harwood . McCafferty Is a member of the Mobile Bar Association, Alabama Slale Bar, Amerie,lll Bar Association, Alabama Defense l.i·...... ~rs' Association, Southeastern Admlrahy UIW Institute and Defense Research Institute. He Is marrl(.>d to the former Betsy Corwin and the father of a daughter and son. Taylor George M . Taylor, III, grC'N up in Pratt· ville and graduated, summa cum laude, In 1975 from the Unl'ICrslty o( the South In St:>.vanee, Tennessee. tn 1978, he received his law dEgree from Vanderbilt University School of Law in Nashville. After law school, Taylor clerked for Chief Judge Fr,ll1k H. McFadden, United

The Alabtlma Lawyer

McCafferty

O'lJrien

States Court (or the Northern District, Ingham (lrm of Thomas, Taliil(erro, For· man, Burr & Murray (now Burr & For· man), where he Is a partner. Taylor Is married to the (ormer Judy Gr.lce Howell of Dothan ,

He also is a menlbcr of the Kiwanis Club of Tallad~ and the board of direc· tors of the taUadega Chamber of Commerce. O'Brien is married to the former Janel L. Fievel ,md they hiM! iI son and it daughter.

O 'Bri en Michael A. O'Brien i§ a n.. tlw of Birmingham and a l>artner wi th the Talladcgil firm of Wooten, Boyett, Thornton, Carpenter /I< O'Brien, He joined the (lrm upon graduation from law school. O'Brien received his undergruduale degree In 1972 from the University oi Ala· bama and law degrl:'e in 1976 from the Uni'ICrsity's School of law, He Is a member of the Alabama Slale Bar, the Real Property Probate and Tru st Section of the Slate bar and the T.ll1oocga County Bar As sociation.

8urroughs MichaelS. 8urroughs Is a nall'IC of Tuscaloosa and II partner with the firm of Phelps, Owens, Jenkins, Gibson & Fowler, where he has plJCl lced since 19B2. He grilduated from the Uni'ICrsity of Alabama in 1976 and the University'S School of Law In 1979. Burroughs is marril!(! to the former Joy l..1mon of Tuscaloosa, and tlley have two daughters, _

lind therl ooglln v.urking with thc Birm-

' 29

About Members, Among Firms ABOUT MEMBERS W. Cafft)' Norman, III, formerly senior counsel (or banking at the De-

pMmcnt of thc Treasury, has become d member of thc Washington, D.C., law firm of Heron, Burchette. Ruckert & Rothwell.

•

Marilyn C. Nt..'Whouse, formerly pr.1cl ldng in Phenix City, announces

lh.., she ha~ relocated hur pmclicc 10 W.lshlnston, D.c.

•

Andrew H.-,rper McElroy, III, announces the opening of his office

31 1720 Cit) Federal Building. Second Avenue, North, ;lnd Twenty-First Strcct. P.O. Box 10232, Birmingham, Ala b.1ma. Phone (205) 326·2869.

•

Luther J. Stran ge, III, has been "ilmet! direttor, federal affairs fOf So-

nal, Inc., in charge of Sonal'S Wash· ington, D.C, o((ice. 1100 ISlh S'rt.'et. NW" Suile 700, W.lShlnSlon, D.C. 20005.

•

L. Thompson McMurtrie, .1

Huntsville aUornW. was reccn!!y named "BosS of the Year" by the Huntsville legal Sccret"ries Associa·

tion o1t thei rlifth onnual Bosses' Night CdebrOltion,

•

Locke, Purnell, Boren, loIm..oy & Neely, of D,1I1ilS, Texas, nnnounccs that Gary R. I'owell, formerly law clerk to l"lon . Joe Fish, United Stmes District Judge for the Nortllcrn District of Tcx<ls at 0"lIa5, and Hon, John M. Roper, United States Milglstrate for the Southern District of MlssIsslplli 011 Bi.. 10lCi. has Ixl:ome an associate with the firm, wllh offices located al 3600 Republic Bank Tower, 0,11101$, TClCaS 75201·3989. Phone (214) 754·7400.

•

130

Julia Smeds Stewart announces the opening of her law office at 2160 Highland Avenue, 8lrmlngham, Ala· bama 35205. Phone (205) 933-9433 .

•

8ruce H.S. Anderson, formerly district counsel for Ihe United Slales Army Corps of Engineers' Memphis District, has been appointed deputy chief counsel for NASA's Goddard Space FIiKht Center In Greenbelt, Maryland. He is il 1975 graduate of the Universi ty of Alabama School of law and 11 member of the b"rs of AI,,b"ma ilnd Tennessee.

•

Hermlm D. Pildgen announces that he is a sole pr;;,Clitioner, with of· fices located at S Dauphin Street, P.O. Bo)( 2885, Mobile, Alab<lma 36652 .

•

Mobile attornC'!' Donald f. Pierce recemly was elected pf1;l$ldent of the Defense Research Institute (O RI). The goal of ORI Includes promoting im· pfO'lements in Ihe administration 01 civil justice, encouraging prompt and fair resolution of tort claims In the public interest and >erving as a clearIng house (If informiltion for Its sup. poning mClllbers. ORI is composed of 13,000 memberS and headquartered in Chicago.

•

Effl!Cll'll'! r-ebruary I, 1986, the law firlll of l1aKIl..'y, Beck, Dillard & Dauphin w.1S di ssolV(!(f. Geo'll! Beck .lll' nounces the formlltion of George l. Beck, Jr., P.c., and the location of his office at 22 Scott StrL'Ct, P.O. Box SOI9, Montgomery, Al 36103·5019. Phone (205) 832.. 4678.

•

Correction: In the March 1967 Issue of The Alaooma lAwyer, Joe Walker'S name was listed incorrectly as ~Joseph W. w,.lke( Please note the correct spelling.

AMONG FIRMS The law firm of Dishu ck & Rodeoberrr, P.C. announces Claire A. Black has become a partner In the Orm effectl\'e March 15, 1967, under the fi rlll name of Dishuck, Rodenberry & Ulack, p.c. Offices are located at 810 27th Avenue, and ihe mailing address Is P.O. Drawer 7, TUicaloosa, Al 35402. Phone (205) 758-9044.

•

The law firlll of Johnson. Huskey, HorrlJby & Ethen.'CJKc announces thaI Lc1i<l Dowling, a former associate, has lx.'COIll(! a pMtner In the firm . Offices are located at 131 North Oates Succt, Dothan, AI"bama 36302. Phone (205) 793 .. )377.

•

The law firm of Goggans. Mel,... nish, Bright & Chambless. p.c., has relocated Its offices 10 S40 South Perry STreet, second floor, MOntgomery, Ala· bama 36104. Phone (205) 2&3-0003 .

•

Michael T. Murphy and Barre C. Dumas announce the relocation of thelr offices from 156 St.lte Street, "'* bile, Alllbama 36603, to The le Clede 8uilding, Suite 1004, 150 Co.~mmt.'fll Stn.>et, Mobile, Alaballla 36602.

•

Howtll, JohnstOn & l<rngford " nnounce the change of the fjrm's namc to Howell, Johnston, L.lngford & W,IItCrs. wllh offices ill 61 St. Joseph StrCf!t, Suite 903, Mobile, Alabama 36602. Phone (205) 432·2677.

•

Eyster, Key, Tubb, ~aver & Roth, 402 E. Moulton StfCCt, ()('(ilIur, Alil· llama 35601, announces Ihat l. Willy Allen has become a p.lrtner In the firm.

•

Ronnie t. Willlllms and l.o1rry C, Moorer announce the formation of a p.lrlne(1hip under thc name of Wil· Iiams and Moorer, with offices at 814

MilY 1987

51. Francis Street, P.O. 60x 2611, Mobile, AI:l:bama 36602. Phone (205) 432·69B5.

•

Yearout, Myers & Traylor, P.C., dnrWuncc th.11 Deborilh 5. Br.1den has become a member of che firm and their offices have been relocated to 2700 Soutlirusl T~r, 420 North 20th Street, Birmingham, AI.1bama 35203. Phone (20S) 326-6111,

•

Owcn, B.,II and Simon announce Ihal Rich.ud M. Kemmer, Jr., formerly associated with the firm, has become a member. The firm will continue to practice under the Mrne of Owen, Ball, Simon ~nd Kemmer, with omces at 410 Courthouse Square, Bay Minette, Alabama 36507.

•

Rams,",.-, Flynn &- Middlebrooks, p,c. announce 1he relocation of their offices to the 16th floor of the SouthTrust Bank BuUdlng, 61 51. Josel)h Streel, Mobile, Alabama 36602 and Ihat Charles I. Fleming has joined the finn and Michael G, Hucy has become associated with the firm. Phone (205) 433-6100.

•

Myron K. Allenstein, formerly a sole practilioner, .lnd Charles Centerfit Hart, formerly an assistant district III1(1ml.,,( for EtO'>'-';Jh County. announce the formation of a partnershil) under Ihe nanlC of AlienSlein & Hart with offices located ll\ 141 South 9th Street,

Gadsden, Alabama 35901. Phone (205) 546·6314.

•

The firm of Moore, Kendrick, Glassroth, H.uris, Bush & While, Montgomery, has renamed itself Moore, Kendrick, GI.lSsroth, Harris & White, effective December B, 1966. On that date, John Bush left the firm to accept an appointment from Gover· Ilor Wallace as a chcuit Judge in the 19th Judicial Circuit (Elmor!!, AutilU' gil and Chilton coun!les).

•

Copeland, Franco, Screws & Gill, P.A., of Montgomery announces that Dan W. Taliaferro has Joined the firm tiS M associacc.

•

Arthur J. Madden, III, and Dom ingo Soto announce Ihe formation of a p.lrtnershlp, Madden and Soto, 465 Dauphin Street, Mobile, Alal),lma 36605. Phone (205) 432-0260.

•

The law firm of Rives & ~lel'SOn .1rlflOunces that Bennett L, Pugh has become an aSSOCiate of the firm , Offices are located al 1700 financial Centcr, Birmingham , AL 35203. Phone (205) 326·6141.

•

James W. Fuhrmdster, formerly assi~lilnl district at\omcy (or the 16th Judicial Circuit, announces the (lpcnIng of his office in association with Henr y E, Lagman & John 1\ , MeBr.,)'cr. The firm, Lagman, McBrayer &

VID EO OF:

Telephone: (2051 265-2999

The Alabama Lawyer

•

Church, Trussell & Rubinson, P.c., of !'ell City, annoul'lCcs that W, Van o'lvis has left the firm to servc as dlsHict attorney for the 30th Judicial Cin:uit lSI. Clair and 610unl cou rlll~).

•

Reeves & Stewart annoullee tlmt Robert E. Armstrong, 111, has become associated with the firm. omces an:! located on the 2nd Floor, First Alab;)ma Bi'lnk Building, 101 Church Street, P.O. Box 457, Selma, Alabama 36702·0457. Phone (205) 675·7236.

•

C. R. lewis and Sleven K. Br,lckin, of the firm of lewis & tlracllin, announce that D. Taylor Flowers, formerly with Bunlln & Cobb, DothM, Alabmna, has tK.'Come a partner of the firm. The firm name now 15 ltwis, Brackin & f lowers, at 114 South Oates Strt'Ct, P.O. Box 1165, Doch;lO, Alabama 36302. Pho'le (205) 792-5157.

•

The firm of Rhea, Hoyd & Rhe.l announces Ihat William H. Rhed, 111 , has left the firm to ~I'\IC as a ci rcuit judge in the 16th Judicial Clrcul\. The firm will continue 10 operate under the name of Rhea, Boyd & Rhea with offices at 930 Forrest A..-.;:nue, Gadsden, Alabama 35901. Phone (205) S47·6801.

PUIiLl C RI-:CORO SI.:RVICES (20S) 262-OJSO 1'051 Office [lox tl 56S Monrllolllery. AL 36 1t I

I IDEO TBEASUBES DEPOSITIONS, ACCIDENT RECONSTRUCTION , COPIES MADE, ALL FORMATS

Fuhrmeister, P,c., 15 IOCilted at Suite 102, 200 Cahaba Park,S" Blrmlng· ham, Alabama 35243. Phone (205) 995-0220.

Uniform Commercial Code

~arehtl

A'",

• COUll

Ilou~ $clIChe::>

• COfp. Inform.rlon

COfnminlon

" ~OI4J

• Suhs

• Tn A.!t),mlrll

• Iliv/).ct • Rml.cll of Iny dl '. ntC'd .r .rel roun houUi Ind Ornt••«(I.d 'cpo>llOf!u

• J ud~men" • LdnJ

"...,

• M Ofliatn

,31

Riding the Circuits ----------------~~------Barbour-Bullock Counl y Bar

Association AI ,h~ annual meeting of Ih~ 3rd Judicial Circuit Bar (comprised of Bar· bour and Bullock counties) In NoYember 1986, the following officers were elected for thi s year: PJl.~idlml:

lynn Jackson , C1ilYIOfl

Vice

p~denl :

W. Thom;llS

~i1hel,

Eufaula k'Crt'l3ryhrcolSUICr: tynn W. links. III, Union Springs

U. I'owcll, SupernumerJry ci rcuil ludgc, who WJS the presiding circui t lodge 01 the 8th Jucieial Circ uit when Stand became county solid tor of Cullman Counl Y in 1947. Bland scrved as county soliciTOr un· trl 1955; during such lime, he Wil ~ Ofdered 10 I'henix City to l)m~L>(; U1C thoS(' In Ru ssell County whlhC crimes

and

wfOOgdoll1K~

;I~~il~sin.)tion

culmin.ll('(i wr,h !he

of Alberl P,ltterson, the

,l"omey general-clect for the St,ne of

01 his pro~u · torial scrvices in Phenix City, the Stolte

At,lbi.lma. A~ ,1 ({'Suit

of AI.Ib;rm,r .lWardcd to Slimd both the Alab.lma Commcnda tion McdlJl for nlcrrlOtious service and the Phenil( City Civil Disturbance Med~1.

III 1955, he and his broth!!r, Ralph, forl11~1 a I).,rtnershlp

for the general

practiel' of law. In 1971, Bland wa s cJt.'Ctt.'(lto SCM'! a~ d istrlc, ,ltlOrrlCY of the J2nd Judicial Circui t .and served with dIstinction in such c~padty for 16 years. He was reg;udcd as a tena· cious, succ~~ful and fair WOSt.!CUIor who had 'he resP«l of his fellow al· torrwys at the Cullman Bar.

Chilton Cou nl y Bar Association AI h ~ mol1lhly m~tlns on february 24, the ChUlOn County Bllf elected

nlwofficers Re-clec::ted were lohn M. HiS8in~,

president. ilIId Robert I .

Bowers, Ir" scc;rclary.I,caSUfl!f. Joel Rogcr~ Wil ~

clecIl-d vice prl>sidcnt.

In nddiTion, pr/:si ding circuil judge

W,litcr C. I (,lyden, If" .11>1>01111('<1 '11Sgin) (.lnd hb succc)!>Ors) to servc also .1) cuqo(h'ln of the (cuIlIy l.lW libr;lfY; 1JQwef'i (,md his SUCct'~o;or~) wcre chosen to SCf'\Ie as trustC(' d lhe coun·

ty l,lW libr.uy funcl . ludgc II.JYdl'n .11)IlOimed .1 1~ hbr.rry .utvlMlry comllunC{' compdSt.·d of 1$111 SpeJk~, chalr111.111; Robert L Bo\yN~, Ir.; Richard Moore; Sibley

Rcyrlold ~;

,Uld circuil dc!k

loel ROi!er~

Eloi~ W, Mrm~.

Cullman Count y 8M Association On January '" the Cullm.ln Coun· ty UM AS'iOCi"tion held ,1 luncheon hCl110rins Julian IlI;Uld for his mJlly YCM~ of public ~Nvlcc. 1 he guc~t ~1>t.'ill.cr Wd~ the Iionor.lble Nc.'Wlon

lul,.1Il HI.mel (tdO ,HId

ludW_' NeWlon B.

('0'01'('/1, '1I/}t'/11II11WrJI)' ('u('lIil lud~t!

Bar Briefs Sharp honored and elected Charles E. Sharp, of Ihe Birmingham

firm of Sadler, Sullivan, Sharp & SIvilS, p,c., wa s recentl)' elocte<l !O the Internaliona l Society of B:)rfislers, in An n Arbor,

M ichigan. This society is compri sed of 600 trial lawyers throughout the wo rl d .

In addiriol'l, he was named one o(THE BEST LAWYERS IN AMERICA by his colleagues In the publication hono ringlhe

lOp 1 percent of practicing attorm.')'S represen ting 15 specialties in 50 Slate$. Sharp is a member of the Birmingham, A labama Stale, Federal and American

Bar AssociaTionS, the Inlilrnal lonal Association of Insurance Counsel and the Alabama Defense L.1Wycrs· Asrociation, He received his undergf.ldu;ue degree in commerce and his law degree from the University of AI(lb(lma.

Sti vcnde r c hose n " Lawyer of The

Year" T he Gadsden Lega l Secretarfes Associa tio n Inlrlounccd February 26 tha t James Stlvcnder, Jr., 0 Gadsden attorney, was named " law yer of the Year" by Ihc orgonlzati o n. Each legal secreta ry wa s invited to sub-mit a letter nominilling an alll'Jrney to Ihe (lssociation, omi tting from lhat leller any identifyinK informa tion. These letters were JudgL'd arld, based Ul>on the lenef submitt ed, the winner wa s selected Jnd then named al the luncheon. Sti\ICnder was chosen based upon a leiter nominating him by his secret(lry, ChMlene Clifto n, wh o has v.tlrked wi th him fo r )0 years. Sth'ender has beerl a prac ticing at· torney In Gadsden for 3S yea rs. He Is married to the former Stefl(l Walker ,ll1d the father of four children . His parentS were Dr. and Mr>. Jam es C. Sli\ICnder, Sr. H e is a member the law finn Qf Inzer, SUllie, Swann & Stivender, and a

The A I/lbiJma

~awyer

A lhritton member of the EtCM'ah County B<lf Associatio n, the Alab..l m~ State Bar and the Ameri C<ln Bar Associatio n. He is a former G;'1dsden Municipal ludijc and assistan t di stri c t (lIIOrlley. He is (I Tru Stee (If Slimfo rd Un iversIty, past president of the Glldsden Ki wani s Club, p" ~1 presidenl of Ihe EtCM'ah County Bar Associatio n, pa st chairma n o f the Elowi!h Co unty Rl.'d Cross Chapter, pas t captain of the Gadsden Quarterback Club and pa st chai rman of the board of deacons. Firs t Baptist Church, and is an aCl ive member of Fil'5t 3ilptist Church Jnd a teacher of the men's Sunday sc:hool dass. Albritton ami Harwood honored

w. Hilroid Albri llon, IU, of An dalusia and R. Bernard Harv.'Ood, Jr., of ru se ... • loosa wcre IrlduCtec1 recently into the Americ.ln College of Trial Lawyers. Al b ri llon, of the firm of Al b ri ltonS, Givhan & Clifton, Is a 19(>0 wadua te of the Unil.(!rsily of Al ablma School of LilW. He Is a member of both the Pr..rctice & Procedure Section and the litlgalio l! Sec· tion of the slate IxIr <lnd serves as chair· man of Ihe Supreme Co urt liaison Com· millce. Albritto n also is a member of thc board of bar co mmissioners, representing Ihe 22nd Circuit, and the Pro posed Judicial Building Task Force. I larwood is a parmer w ilh Rosell, I-Iarwood, Cook & Sledge. H e grad umed

frOm th e Univers ity of Al abama School of law in 1963. He Is a member of the Alabama l.aw Institute's A labama Uniform Arb itra ti o n Comm lucc and the A labama Supreme Court's Standing Committt!e on A labam<l Rul es of Almellilte Procedurt! and the Advisory COI'l'lmiIlCC on MUnlci p<l1 Courts.

Judges overloaded Judges of the Alabama Co url of Crimi n;!1 Appt!". ls hilYC contc ndl."'Ci wi th iI 117.3 perccm increase In their casclo:.d. but Ihere has been no increilSt:! In Ihe membershi p of the court since 1971. (By Act No. 7S, AcIS of A la b~m a 1971, the legislature creil tl.,,(1 a five-judge coure.) These wcre the fi ndings of a seven-year SUf\ICY SlImm<lry by Judge John C. TySOrl, III . of the COWl o f crlrn inal appeals. Duri ng the period cxam lned, Ihree iudgl.'S retired , olle d ied and onc re· signed . O ther than th e hiring of two sWff ".1to rrlCYS In 1982, no addit ional judges h.1\IC been Mmed 10 eilse Ihe workload . Trrm ')'9.&0 'BO-.! ·a!·$2 ·'HI.I 'II] . & ~

'&4-85 '$5.&6

,,"" '"'"

Opinion.

Wit"""! OpI>IIO/!!

... ...'"'" '"

'"'J<

[ fta _

". ". ." ,., '"

'" '00

m no

,,,

ohpodllom

...."." IJJ'

14 24

'"'

133

Attorney Liability Under the Fair Debt Collection Practices Act ?::::::::::::-__by:W~

lIIiam S. Shulman

lawyers whose prdctlces Include the regular collection 01 consumer debts now are c~red by the Fair Debt Collection Practi ces Act (FOCPA), 15 U.S.c 搂1692, el. seq. EYen attomE!'(S whose collection activities are only a small pari oi their practice may be considered "debt collectors" as defined by the federollaw,

This piece of consumer legislation was pa 5sed In 1977 lind aimed at re8~Jliltin8

colk'Cfion agencies 10curtall abusive colk"CIion pmClICl'S ilijollnSI consume!$. Pul). lie Law 99路)61 amended the act In July 1986 to remove Ihc exemption (or law-

yers from the definition of "debt collect-

ors:' The effect of this small change wilt have a significant impaC1 upon anomeys and create new problems for rn,my. Summary of the law The act appliC!S to any "person who regularly colloos or atlempls 10 co llect, direCIly or Indlrcclly. [con sumer] debls

134

May 1987

C&S Signs oCrers the mostallraclive

FROM COOK & ASSOCIATES ComPire 11'1111 low non-,moker Ulnu,l r.l" !Of 1IK ....lng ",'<ltd pr,mlum Jile'

MA.LE AOU

" ""

.... . . 50 50

12501000 2&0.00 2&UO 2U.OO 330.00 412.10 542.&0

$5001000

1W)tI-

$1.0001000

455,00 410,00

'70.00 177,10

4",00 515.00 7&0.00 1.015.00 1,1120.00 '10.00 2,5:15.00 1.' ' '.00 4,:)85.00 2.372.50 (Imok,,.. til.. ,UghllV hlght'r)

" '.00 110.00 1,121.10 1,510.00

type of sign around , sandblasted, clear all heart redwood. A profess ionally des igned & executed sign says the kind of things about your practice, thnt you want repeated. For information write or call:

2.217.&0 UIO.OO

'.51$.00

Renewabl' 10 ave 100 Female ,alet 111m, III m.1n lour yhr, YOUn"'r All COye •• ge prOVided by compllnlQ '~III<I .. " E~~II'n!· bV ....M Be$! CO. Fo •• w.llien quolallon and pollcV deJ(lrlp!lon lind 'fOU' d.l. 01 bI'Ih .nd amoon' 01 caYe'av' d"II.o 10

COOK & ASSOCIATES 2970 COTTAGE HILL AOAD ' SUITE 20 1

MOBILE. ALABAMA 36606 (205) 478-1137

(205) 792-8273 RI. 1, Box 376, Webb , Alabama 36376 C.O.D ..:. VISA -:- Maste rCard

0'Ned or due or asserted 10 be 0'M!d Or due another.~ 15 U.S.c. §1692(a)(6) This

ligation has Ix!en redu ced to Judgment."

includes allorn(.>yS. Even though the act

The definition calls for In1C:!rprctal lon ~primarily:' PrCi umably, that \YOuld mean that it was for more Ihan one-half of the purpose of the oblig<1lion. Additionally, the attorney must look to the purpose (or which the clJl igMlon was Incum..>d . Thus. while the obvious type of consumer obllg.1lions (o)nsumcr retail contmcts, Installmcntlo.ll1S, crodit cards, certain services and purchases) arc cCNCred, other obliga tions may be trickier to ca tegorize, Debts whi ch arise ou t of business obliga tions are not covered. Ii ~r, If someone is inwsting their money for pef$Oflal purposes., such as an indi ....idual who invests in the futures markel. the dlSllnction may srow futty. If that 5.1me person Is sued later by Ihe Investment nrm for fanure 10 pay " fter a margin call has been made, a determinati on must be made as to whether the

d~ not d~ne " regularl y:' rTlOSllawyers

should assume that any collection of consumcr debts Is cO'oCred by th e acl. The Icgislali~ history ol thi s amendment indicates that any attorney who handl~s morc than iI h.-.ndful of consumer collec· tion cases will comc within the confines of th~ I:OCPA. Thu s, even those attorneys who collect consumer debts on an occas/ollal basis, or the Arm s whi ch may collect debts only inciden tal to the general practice of lilW. ,lie covered. The term "debt" is defi ned in the act as Hany obligation or alleged obligation Qf a consumCr to pay mOlley arising out of a transaction In which the money, property. Insurance, or services which are the subject of the tran saclion are primarily for !>Cl'$()nal , falnily, or hOusehold puq)()Ses, whmhe. or not such ob-

The Alabama Ltll"yer

15 U.S.c. §1692a(5)

of the \YOrd

transaction was primaril y a personal Investm nt or a business investment. The <let (lise CCNCf5 other areas thilt will cause attomey$ to change their method of colleclion practice. The FOCPA in· cludes venue provisions which in certain Instances are different from those proYld. cd In the Alabama Rules of Ci ....il Procedure. Further, certa in communications with third parties nO'N Me limited and raise spcciallssucs within the conlcxt of dlscOV(!ry procedures. The act also requlrt.'S the l.myer 10 send specific Information along with, or within nve days after; the lawyer's Initial "communication" wilh the consumer. New restrictions are placed on the IWI)'eI' with respec1 to certain oral and written communications with or ;1bool the debt. or. ThE! act (lIse restricts certain practices, such as the receipt of postdillcd checks. Finally, the attorney now may be subJect to sta tutory liability. The aCI prO\lldes

I3S

that lilw.iui ts m"f be brou8h t by the Fed· er,11 Tr<lde Commission and i7( individual

(I}}

co n sumeh Jcting alOnt! or a ~ a da ~~ i1C:. tlon, .. nc! (unhe! I)rovld~s Ih,11 d .. mages, anorney 's fees and CO urt COS 1~ m:ry be ..w.ud(.'d ag.li n~t the viol.lting "debt col· 1('("lor," whi ch includ<'S an .lttorncy col. Il'Ctlng a debt ~g.lmS t iI con sumer. Thi s ac t not only crea tes I\(OW l l ttorm..'Y IInbihty, but POlb Ilt..OW ethlc.11problem~ a.. ........,11, However, the ~copc o( th is M tj· de w ill be IImltt'd 10 Ihe problems of inwrprct,l lioll of cerlaln S('(llon, of the aCI .md Iho~ prQVi sions whi(:h will ha\'C the mO~1 Iml>'lcl 011 i1110rllt.y; eng.1ging in wllet:lion~.

tt' rhe ("IUII.' 01.1 COflj.Ul"lM.'I 10 dl~le Ihe v.llidlry of ~ dclH lII.u.:r Ihi, S('C. lion m;Jy nOl hI! cOIl~lIU(,<1 liry ,IllY tour l d' ,III ,"lmi~siOI1 01 li"bilily by Ihe (OI1'l1nlcr,

Notice and vil lid"tion or debt The l>Ortion cK the .let wi th which 1Il0~t 1.lwycr-; have Inteq)ret.. tion problems i~ (ound In SI'Ction Ib92g. Since <Utorncys "'I.' now induded within the definition of .1 "debt collector," lht.'Y muSI cOllmly with this St"Clion whit..h I)r()yidt.~ d ~

follO'NS: (,I) With,,1 Ii\\' dJ)'!! olfl~r Ihe 1I1ill,II COIllmunl('lTI(HI wllh ;'1COINm~r I" cun rlt'Cllon Wllh II,.. mllt'Ctlon nf ,my (1,·1,,1, .1 tld,1 (ollt'CIU' ~hll ll , un ILoo;~ II", followl IllIlnfUrm,'I;",,, I, cOIIt"ln<'od in Ihe rn ltloll comilluni. l,lIivo or lhe (OtIWIlM.·f h,1S Ih1id l he clebt .. -end l ilt' (OIl,unJot'I •• Wfll1t.'Il

notice cOOl.,'"I"II; III Ihe .IITounl ofllll' dt-ul: UJ 111(· I",Illt.· of IIJot· crt'd' lor 10 wholl1 1111' {!t'I)t I. 0Y0'('C1; flJ ,I Sloll{"II'lI1 Ih,1! un",'" Ihe ~U I1'uml'l, wllhln Ihltt,!, (/,IY' ,I('(,r rt'l.'("Il,1 uf the II<)IIC(', d,,,, IJUt!"> Ih(' valldlry 01 th~ deUt. or ,lilY 1)0111011 IIK'It'Q(, II~ debt 1'0111 Ill' ;1))Ul1ll'd 10 II{' v,lhd 17" Iht' (ielJr COULocIOf: t41 .1 !ilale"lf'Ill th,u If l ilt' (;on .. )um~r nOli(iL"I th(' (lC'!)1 <.01. it.ociol III wrlrinll wilhln the Ihiny"d"l' pl'Ilod l ilotl tht· d~Ur , or .IllY j)Ouiun Ihcoreo(, 1\ (11" ))\11(-(/, lht' dd)! lOlhoclor will obl"ln \1('11(11,)11011 of tIl(' debl Of ,I copy Ii ., jvdllnlt.'fll ,II\<,i"'1 Ihe C0I1Wfll('1 ,mil ,j (;1)11t' 0 \\Joth ""ri/ie.llion or jurlllllll.'Il! will U\.. m.liit'tl 10 !he (Q,hUll1er by Iht, fieb! ~ul· 1("(lu.; dnd lSI ,I ".lI('m~1\I Ih,lI, ul)()n IIII.' r.:un5U"II!r'~ wrill('n r~'tII.l\·'1 within Ihe Ihlfly-d;Jy peliod, 11K' del)! WtlKtor WIll prtNlde 1Ill' COffiUnit'l w.lh th~ n.lfI~ ,Ind ,iddfL'SS 01 Ih,· IItIMllloll nedllm, If (trirl'renl ffOllI l!lI' cut/enl cwditor,

IJ6

If Ihe COIlsomer 1I00;f~'S Ihe debt colleclor In wr Ilnll .... tthrn llJot'lhirt)"d,lY ,x-rlod dcicrrhed In iuh~l rOcI Idl of Ihis O;('cIIOI1 Ihm Ihll debl, or ,"1)' po,tiun Iheft<ui, I, (tI)p1JI~d, or Ih.ll Ill{' CI)II\UlIWr IC(I"('o;I' Ih(' n,ll11(' .IIKI olddrt..'Ss 01 thl.! origln~1 Cft·tlllor, Ihe tIt·bl colk'Ctor slMIl (;e,l-e 1'1)11«:110.1 Of III(' debl, or ,\1", d,\pulL>d pGfIloo IIl('rm, ulllil Ih(' (k.-bt coll(O(lor obl.1in~ o,cnfic,lliorr 01 ItI(' ck'-bl OJ ,I (OIly 01 •• iudll">('I'I, or Ihl! ""me '1I1e1 ,lCktrt.."I~ of IIIf' or!· IIl1hll c" .'dilor, ~nd a COlly of such \/I'rili(;,niOIl o( lulifllllC tll, ur name ,1,,11 ,'\(Idl{',~ of rite o. il\lI1,11 Crt..'tirIOr, I) m.l lll-<l 10 Ihe CO!NltII('! by Ih., debl r.:oUt'{:tUl"..

The Ihre~ho ld itl t('!prl'l.l 1Ion l)rOlJlern !rwol\l(" the word ~cot)lmu n ic.l l ion.~ The Il'rlll i~ defined in Ihe .leI to mean " Ihe COrlVL'Ying of Infocm,111011 regJCdlng " deht directly or indlrl'Cl ly 10 any l>CfSOn throutth ,my mt.·Uiutll,," 1 U.S"c. § 1692.1(21 In a Iil ig,l l ion wnll'XI, IhC' lIotiC(' .me! v,)lIdn tion m.ly be re(luired if the complJlnt b Ihl' in ll l.. 1 ConuI1UniC;Ition . The ft'tler,,1 Thille CommlS~lon has publl~hed th nOIl.blnding p(Opo~l'd offici,)1 staf( comment.lry 10 Ihe ,)<.1 found .11 5 1 f ed. Reg. 60 19, ('1. '('(j, It Slales th,lt "a dd)1 col!ector'~ i n~rrtutlon of form. ,tllt ',II,ll 'l( l iOn ilg.-'linSI ,J con ~\mlt'r I ~ not ,\ 'CllfllI1llInic.1tiol1 in connl'Cl km wi th Ilw (;ol ll'(;llon of illly dehl' ,mel Ihu ~ docs nOl co nfer §809 1§1692SI nOl ice·and · v.llid.1Iion nghb on Ill(' consume,:' SI Fl'd, Reg. JI 8028 While the /,:ommerl· I,l(Y ~ms Iogic.d, at Ica~I one ilnlete has c:ritid~l'(llh,'l l vi ('W, SC<.', NCIC RI.·/XJrtl, VuI. 5 (Sl'J)II!mlwrlOcIQber, 1986). Obvi. llu,ly, ,I weill de.11 of informalion is can .. Vl<yt,,<1 by .1 complahl, ,Ind Iherc(ore II could be coo~id('(l'd.1 "coolnlunic.ll ion." rurlh('r, ther(' i s little (l ul'Stion Ihal In· ~lll ulln8 ,1 ~Ul t is " i n connc(lion wilh Ihe COill'(t;on of any debt." To 1!)lclprCI ,1 "COrlimuniI.Jtion" Win. chlde.1 1,)I.'vsull would Iml)ly that" con\ UI1\('r could h,,1t the proce~~lng of il C0l111'1,linl under §1692c(c), which ~1iIIL~ ,H

follow\: 1(1 ((',I'lnll t.Ol",,,un;{.II(,," - If ,\. UII· 'UIII('1 III:r1rftl'd ~ dd)1 Wllt't. lor in wtUinlllh.11 lhe W' bUIl\t'r rt-iIN'~ 10 I"ly .1 dd)1 (I! Ih,'1 Iii" ("on <;ut\I('!'

wlSh{'5 lhe <lclH {ollfCtOf 10 cea~ fUll her commUI1IC.lI'OO Wllh I~ consumL'I, Ihe dtobl col k't:IO< sh,11I nO! comnlulllc~ le further with l he consumer w!lh re"I)(.'(I 10 ~uch dt..obl, e~ct!tJI :

(If 10 .-idY15I' the consumer Ihal

Ihe ddlt cotkoclOf, furthel cl· fom ,11(> lx'ln" Il!fmln,lcl.'d;

III 111 n(llify Ihe (OcI)UIII('. 11,,'1 t~

dcbl cotlC'CI01' Of creditor

m,lY Il'lVOIIe Spt.'CIfIL'C1 R.'mediL~ wh ich o.dll1<1tilV <lIe

In.. vok('(l by ~uch eM)1 CO!i{,(I(l1

or cred,IOf: Of I)) where olllllllc,lblu 10 1lO41/y Ill('

(;O'Mtnl('t Ihill lhe (k.obl cot.

k'cltlt Of t"tf'(1r16r 1111('1\(1-10 InYO~(' ,1 ~pedned

ICll1roy"

If such notice from Ihll consumer is mndl.' hy m:Jil, nol )(ic,llion shnll be (0111' plclC upon rL't"cipl.

It I ~ nol (on\i~lerl1 with o ther sections uf the FOCPA 10 rnl(!rprel ,I li1wsuillO be .1 communicOl l lon. 111)1, it would pre~un\{' 111.11 " COn)UITlCr wou ld h."'M! IhI! ul· limollC right to prt.'\.'CtlI a Sllit from being I,lk('" 10 judgmen t, and secondly, § 1692(c)(3) allows .1 debt collector to nOl dy Ilw (;on sunw r th;11 hl' mlends to Invok.e;1 ~ 1)t.'CHkod r{'!nll'dy, which could I~ Implied 01 in teq)rel Lod to me,lIl " lawsUlI, ,lmOll8 ol her rcnlt.'lhL~. Untrllhe courts rulc on Ihh i s~uc, II Will rem.lin f('rlilC' ground (or lil i6<lI ion and 1>olenl i,11 11,lhllll y.

On(' w,))' to .woid the I)roblefll fIlay be 10 ~nd ,1 defllilnd lencr wi-h the rt'fl uirt'fl

notice I)rovision <;, H Q\Yl'v,''', C('rMln I)rob-· I('m~ .1r(' l)()';t'd bv il dt.'mnnti leiter con .. I.lining ~uc h notll.e ,11KI t l(! ~ul>SC<luenl fillnl! of a cum pl.1Inl, for (,Ma m l)le, Is an .I1WfIIl'Y (C<lul rccl to wOIi l 30 day, ,1fl er ~l'(ldilll:l ,I demnrld 1('l1e,' belote ini ti atin g ,uil l There i ~ no doubl 11",1 ,1 C(Jn) umcr m,lY ill' (on(u'it'(! aflt'r fI,'t:eiving ,I nOI I ~C indit.11lng Ih"l he Il.IS JO d.-l)') to dispute ,I dlol)l, ooly to find oullhJI .1lawsuil has IX'l'n filt.'tl ilH;Jin!>l him wIT'l i" the JO.d.ly trnlC jX'dod. It has been sUMBcstcd that 'uch ,) practi ce tha t is confUSing CO con'IIme~ m,l)' he held to b(' ,111 ullf,lir trildc praC1i ce on thilt ba sis "lmlt'" Hingham, 'Wh en L.1Wyt'f5 Act ,l'j [)('bt Cllllt'<:tol)," 1.I'g.lllullc~, September 29, 1986 The rrc pmpos('d cOIlln"tCnt.lry indlcoltl" th"l ".1 debl co llcctor need not ce.l'it' nQrmal collection aClivilie~ within thl' con~1Jm· cr') 30,d,l)' period to gill(.' nollce of i1 d i~

"",Iy /987

pute until he receives a notice from the consumer:" Further, an FTC st<lff attorney sugg6tOO to the author that the lawyer could insen in his demand nOl lce Iflnfll'$ a provision to the cfft!ct that the FDCPA doc'S not preclude institution of any legal action prior to the expiration of the 30<1ay period mentioned in the letter. Another possible solulioo is 10 include the Information tcqulred by S1692g(b) in the complaint, along with a \/Crlflcation attached to the complaint and Ihe name and ilddrcss of the original creditor, if dlf· ferent from Ihe dienl. This Is already the practice in mall)' instances where il suit Is being flied ba!.cd on an itemb:ed ~ri fied account. Since a Mini-Code affidavit is required anyway, the allorney simply may wi sh to m<lke sure the affidavit contains the information required by S1692g(b). By dOing so, the Mgument can be made thai if the lawsuit Is considered to be the initial communication, the consumer is receivif'6 illl that he would have been entitled to receive in the event the first communication had been in a form other thAn a Iav.sult and the consumer had exercised his rights under §1692g(b). If the courts or the FTC (through a formal advisory opinion of the commission) decide a liM'5uit is a communication under the act, the <lllorne'( may be faced with olher problems when representing a client seeking a I>rejudgment remedy, For example, If thc attorney sends the debtor a leller In order to comply with the 3O-day notice PfCNision prior to a prejudgment ;lItachmem, the consumer may decide to leave town prior to the L"lIpiration of the 30 days, taking the collateral with him and hindering the ef· fortS of the creditor to repossess the goods. Further poblcms can rt.'Suh If iI temmt who is In default mceiVC!S the tenday notice required for an unlawful detillner lind also is advised he has 30 days to dispute the debt. Cenalnly, there is 00 reason why the written notice required by §1692g(a) cou d nOt be included with the ten-day notice to terminate the lease or the nollce requlrlnSthe tenant to vac,lte the premises, but the seemingly confli cting time requirement s are IIkdy to cause confusion, For attorneys representing clients ~k Ing 10 foreclose residential mortgages. the notice requirement could be inchKied in the acceleration letter the attorney sends 10 the mOrtgagor. If the attorney The Alabama Lawyer

begins publication for foreclosure within 30 days of the f'IOtice, Il ls unclear whelher the consumer may cause the publicalion to cease by making a request under §1692g(b) which says in p<ln that, "if the con sumer notifies tile debl collector in wriling within the Ihlrty.<lay period . . , thilt the debt Is disputed , , the debt collector shall cease collection of the debt. . , ." Since there Is no "good faith" requirement under Ihe acl rt!Qulroo of the con· sumer, such A r('queSi for Informiltion on a "disputed" debt possibly CQuld imerrupt the foreclosure process and buy time for the mongagor. Likewise, the s:.me problem can arise where a con sumer makes the same request in those instancL'S where the required notice Is sent along with a demilnd letter; wilh suit being filLod prior to the expiration of lhe 30 days. Since the debl collector must cease colloolon of the debt upon receiving a written request or notice of dispute from the con sumer; a default judgment which is entered prior to the debt collector's sending a verifiCillion of the debt to the consumer may be Inv"Jid. Attorneys

should hOM! some type 01 "red f1ag~ built Imo their collection procedure 10 avoid an inadvenent del'ault judgment from being t"ken under these circumstances which could lead 10 liability under the FDCPA, As previously slatLod, S16928 requires the debt collector to obtain a verificatioo of the debt, or a copy of the judgment, upon the wri"en request IJt Ihe con· sumer, The act does not define the 'NOrd "verification:' II is ddlned In 81,lCk'5 Law Dictionary as a "confirmation of correct· ness, truth, or authenticity by llffid(lVit, 03th, or deposition:' The safe course to follow 'NOuld be to assume Ihal verification should be made under oath. How(M!r, a COIJY of the note or statemenl of the account detailing Ihe amounts due could qualify, A cen lOcd COI>V of a judgmem should be sufficient, One anicle has suggCSted that, by including a verification of the debl wi th the Initial communication letter, the collection lawyer can SlOp or render moot any Implied 30-day waiting period , P~milbly, Ihe $"me could be said for the attorney who attaches /I verification 10 the complai nt

\37

as prevlO(jSly noted, HOWC\(!r, this has nOI yet been determined by a court or through a formal advisory opinion of the nc. T. Blnglklm and G . Bonenberser, "Attorney Liability:' The Nar/onal Law /oumal, Oclober 27, 1986 Finally, the FTC commentary Indicates thaI the act Imposes no requirements as to form, sequence, locmlon or type size ol the;: IlOtice. H~r. an Illegible notice does not comply with this provision. 51 Fed. Reg. at 8028 One court has held that the validation notice required by the FDCPA was not Improper In form and wording because It W.l5 placed on the back of a form debt collection letter or because It had no referen ce on the (ronl of the letter to refer the debtor to the rt.'\o'(!rse side. IJ/ockweli 1'. Profess/onDI BusirlC!S5 S(!rviccs of Gcorsia, Inc., 526 f. SUIll). 535 (N.D. Ca. 1981) Howt.'YCr, for another opinion embraclng;1n OJ)l>ositc vleYt', sec OSI v. ColIl'Clion Bureau, Inc., 493 f.5upp. 701 (0, N.D, 1980). In addllion, for those collection allorneys who may make the initial con tact wiTh it COrlsumer by lelephone rMher thDn Ihrough a wrillen notice, the prol>osed FTC com· mentary IndicaIe. that Ihe debl collector may make the disclosures omlly at that time and he need not send a written noli, c. 51 Fed. Reg at 8028 Third-party contacts Perhaps the most surprising provision of the FDCPA and the most restrictive Is §1692c regarding communica tion WiTh the consumer. Buically, subsection (a) states that the debt collector may nOT communicale wilh the consumer (1 ) Ilt any unusual time or place which Is krlO'Wn to be InconV(!nient to the con· sumer, (2) If the conSUnler Is rel)I'CSentOO by an attorney with resl>cct to the debt, contact must be made with that illlorney and 0) thc consumer m"y not be , on· tactl;ld at hi s phu:e of employment if the debt collector knows or hilS rcason to know that the consumer's employer prohibits such communication s. This may pose serious problems if the courts determine that a lil'NSuit is a communication under the act. For e)(.llmple, the debtor often is scM!<! with legal process at work. If a suit Is considered 10 be a communication, it is unclear whether the anorney mUSt take additional steps to determine whether the emplayer prohibits its employees from receiving such 136

communiC.ltions, I.e., lawsuits, For purposes of §1692<:, Ihe ddlnition of a "consumer" also Includes the consumer's spouse, parent, gUilrdian, execUTor or administrator. As referred 10 above, §1692c(c) further restricts communications between a debt collector and the consumer after the consumer sends written notice that he re(u ses to pay the debt. Does this mean the suit cannot be filed If The attorney receiYl'S a wrillen notice of a disputel There is a strong argument to the effect that §1692c(c) does not prohibit a lawsult from being flied after the collection attorney receives such ..... ritten notice from a consumer. Indeed, since the debt col· Ie<;tor may nOlify Ihe consumer Ihat he intends to "invoke a specified remedy" it S(!Cms imlllic;il that fOr an illlorney COllector Ihls would mean a lawsuit. Any other reading of the section would be Illogical when readinglhe act as a whole. SecTion 1692c(b) has far·reachlng con· sequences and states as foUCM'S: ''WIthoullhe prior consent of the (onSUriler ... Or the permission of a court of tompetent j\mWICiIOn. or as reasonably nec:essary 10 effectuate a postjudgmenl j udici~1 remedy, a debt collector may no! communic.lI£!, in connoolon with the (01100100 01 any dt.>I>t, wilh any perMln other than the consumer, hi~ 1I11Omt-'y , •• the c.rorler, the attorney 01 the creditor, Of the at· lomey 01 the deb! colll'Cfor." For an e>eTreme example, those attorneys who rc<:ei..-e consumer colleclion cases (rom ,ollection agencies conceivably could 00 prohibiloo from communlcat· Ing with the collection agent reg.1rding the collecllon of the debt, since the col· lection agency is neither the creditor nor one of the other exceptions listed . EVt}n more disturbing. h(Mt()VCr, Is the potential limitation on formal discovery and informal conversations with witnesses. r'Or examl)le, If the attorney is collcct· Ing a debt for a bank and wlshl..'S to speak to il former employee the bank regard. in!! clrcumstan,es surrounding the execu tion of a loan document (where Ihe debtor may be raiSing thl' defense that it is not his $igna t ure~, the communication would appear 10 be prohibited unless permission first Wil$ obtdlned from the consumer or Ihe court prior to discussing the case with the witness. Such a ramificatiOfl setm'lS absurd and only acts as a roadblock (or attorneys to prop' erly preJ}<lre C(lses for their clients. (er-

tainly, permission may beobmined from a court, bUI the extra steps seem an waste of effort. Section 1692c(b) ( an Invoke a myriild of other problems for the attorney. For example, It is uncle"r whether the act prohibits a communication which Ii Inltlatcd by Ihe third p..1rty rather than the debt collooor. Suppose an attorney represents a second mortgagee who is forecloSing a residentidl mortgage. Can the attorney contact the first mortgagl!(! to determine a payoff amount? Is such a communication made In connection with the collection of a debH II would nOi al)l>car to fll within the c>eclusion of effectuathlg a postJudgmenl JudiCial remedy. Obviously, the faCI silualions may be unlimited . Simply put, attorneys should bewarel

Venue requiremenl s When an attorney brings a legal aCilon 10 enforce an interest in re~1 property securing the consumer's obligation, §16921 st.l\eS It may be initiat(.'(i only in the ju. dlclal district In which the real property Is located, Further, If the action does not iflYOlve real property, the suit must be brought only In the jodldal districi in which the consumer signed the contract sued upon or in which the consumer resides at Ihe commencement ol the action. This Is a significant dcpanure from Rule 82 of Ihe Alabama Rules of Civil Procedure which providC5thtJt an action against a resident Individual Hmus! be brought in the county whe'C the defendilnt or any material de1'cndanl resides al the , ommencerrrcnt of Ihe aClion . .. :' Since il debt collector may sue only where the consumer lives or where the consumer 5igl1(.-d the , 0ntraCl, the al1or· ney collector may rIOt be able to join a maker and a ct>slgncr of a promissory notc as defendanlS to a suit filed in th~ district of the maker'~ residence, unless Ihe co-signet also lives there or signed the ,onfra(;l there, Further, the proposed FTC commentary Ind icates where sclVlces were provided pursuant to an oral agN,.'(!ment, the debt coUector may sue only where the consumer resides and not where the services were performed (if that is different (rom !he consumer's residence). 51 Fed. Reg. .118028 This 1)rt1>'ision ch~nges e>cisting Alabama ycn\.le procedure as found in §6-1·1, Cock of "'ab.lma (1975) which MilY 1987

Slates that In actions for work and labor done or brcache$ of contl'3cts or CCJYeo nanlS as to easements or rights-of-way, the aClion may be commenced in Ihe county in which Ihe work was done or the land is situatoo, Civil lia bility of attorneys The FDCPA Imposes civil liability In the form of octua damages. dlscretioOillY penalties, costs and attorney's fees. A lawsuit for violation of Ihe act may be brought by the FTC or individual consumers ilcting alone or as a class. Sec· tion 1692k(a)(2)(A} entitles an individual consumer \0 actual damages. plus statu. tory damages not exceeding $1,000. In the event of a class action, the ma)!· imum s"'tutory damages <HC limited to thc h~)Sl.'r of $500.000 or 1 percent of the nel WOflh of the debt collector, plus ac· tual damages, allorney's fees and costs. It Is further pro.<lded that an action 10 enforce any lIabl Ity created by Ihe subchapter may be brought within one year from the dllle on which the violation oc. curs. Also, a p.1I't)' may act in reliance on a formal advisory opinion of the commission pursuant 10 16 CFR §§1.I·1A, without risk of civil liability. The proposed slaff commentary polrlts oul th l$ protcction doos not extend to reliance on said pr~ posed commentary or other infOrmal siaff i!1lerpI'Ct;lIions, 51 Fed. Reg. at 8029

Miscellaneous provisions and pitfa lls Other 1)((Wlsioos of the FDCPA may apply to an attorney's effort$ 10 collect a consumer debt, .AJtorneys who employ skip tracers or InltiLlle skIp tracing activity within their oftice shoold be aw..1re of §1692b relating to debt collectors com· municatlns with l>ersons other Ihall the consumer for the purpose of acquIring locatIon Information. Specific re<lulrements arc placed on thosc seeking loca· Tlon tnformatlon, Sixtl,..'Cn din reOl eKamplcs of false or mlsleadlngrepresenl.Jtions prohibited by Ihe act are foond al §1692e, One of Ihe cKamplcs consldcrt.'<I a violation of the act 15 Hlhe threat to lake any action Ihal cannot legally be taken or thai i$ not intended to be taken" (emphasis added). The proposed commentary IndlCiltl.'S th1ll .1 debt colleclor's Impl1ciltion, as well as a direct statement. of planned legill ac. tion may be an unlawful deception if not ilclually Intended. lack of intent may be The Alabama Lawyer

inferred when the amount of Ihe debt is

so small as to make the action totally unfeasible or when the debt collector Is unable 10 take th£' actiOn because the creditor has not authorized hIm to do so. 51 Fed. Reg. at 8026 Subsection II of § 1692e slates It Is a violation to fail to di~close "d early Irl all communications made to collect II debt or 10 obtain Informat ion about a con. sumer, that the debt COIlc(lor Is attempling to collCCl a debt and Ihal any Infor· mation obtained will be used for that pUipose This may imply Ihal such ty~ of disclosures must be included In the complaint or olher pleadings, The use of any false representalion or dl,..'(eplive means to collect a debt Is another prohibition under §1692e. Ex· aml)les fou nd in the prol)()SOO commen. ta ry show that it Is considered a fal se statement or Impllc~tion when a debl collector slates or implies he has counseled the croditor to sue when he has not. Since some clients Simply want a demand leiter to be sent without any intention of ftling suit, a false implication or stalement in the leller Ihat Suit will be nJcd may be considered a violation. A statement by the attorney lhatlhe entire amount Is due when there Is no ac· celeration clause, or that no p.1rtial payments will be accepted when the iUtorncy Is, in (.Jct, aUlhorlzcd to accept them, are other examples of violations. Before an attorney sends a demand letter on a promisSQry note, it would be wise to verify that it has an acceleration clause or the act may be unWittingly violated. Those attorneys who are an In·house counscl or employees of a jXlrty CO\lCrl,..'<! by the definition of a debt collector may

5eod a consumer an ~aU()(ney-at.law" letterhead without referrIng 10 his em· plO'y'Cr, To do otherwise would imply falsely to the consumer Ihalthe debt col· lector had relalned a private aUorney to bring suit on the accounl, 51 Fed. Res. at 8026 Seaion 1692f prohIbits the acceptance by an al10rncy of ilny check postdated by more than nVl! days unless Ihe debtor is notified in wriling of when the attorney intends to deposit the check. NOlice must be given between three and len business days before the check is deposited, If a consumer owes multiple debts and makes a single pil)'ment 10 the attorney, the payment must not be applied to any debt which Is diSputed by the consumer and the attorney shall apply the payment in accordance with Ihe consumer's di rec. tions. §1692h not

Conclusion When the Fair Debt Collection Prac. tices Act w;u enacted in 1977, il was not intended to apply to attorneys collecting debts on behalf of their clients. With Ihe re(enl amendment deleting the exemption for allOrncys, lawyers whose practices include the coliCClion of consumer debts IIOW face rlCW restrictiorls and petential liability. Further amendments are urgently needed to clarify the ambigui. ties exlSlingln the law's prt5ent form , As il now 5tJnds, all()(neys must changc the ways in which they previously colll."Cted debts. Greater care musl be utiliZed, and office staff who assist in debt collection should be made aware 01 the new restric. tions. Until the law Is amended further, the floodgates of lltigarion may be open. •

WiIIl.1m S. Shulman Is a PIIrtllCr In the (lrm of Fe/belman, Shulman &- lerry In Mobile, and re<:eivcd his underSf'ilduJw lind IllW degrccs from the University of

AI.lbama,

139

Antenuptial Agreements by Hernd on Ingi!,

Ir.

Antenupti<tl or premaril:tl <'IsrcementS

are be<:oming increasingly popular by couples con templating 'l1arl'iagc. Those who have been married previously and haYe considerilble property wish to control itS (iisPQsWon. No longer are

antenuptial agreementS only for an affluent prQ5peclivt;! sPQ\! ~e who 1$ I,JIlCer-

tain whether the forthcoming marriage

will last or WilD questions the equity of conferring a statutory share of the est.lle

140

on the surviving spouse when there are other deserving objects of his OOll"ty. Many couples who have been married before who have children by previous marrias~ can provide both spouses and their children with the assurance that a later marriage can be entered In10 wi th an agreement ( oltcer-ning the disposition of the property of each spouse. In this country where marriage is the culmination of romantic love, prenuptial property dgr~mer"l[S are not standard marital equipmer"ll. Traditionally the l><lrlies 10 marriage, e~ccpt Ir"l Isolated instances, entered Into the b Iss of marriage without a thought of their assets, the f"ct tha t the marriage may fail or Ihilt current laws confer a statutory share of cach spouse's eState on [he survivor. The old rules haV(! ix.'Cn abolished by statute In mosl stilles, irldudlng AI~bama . Alabama sanctions antenuptial or premarital agreements. Barnhill v. Bamhl/l, 386 So.2d 749 Ali.I.Civ.App. (19601 To be valid an agreemenl anticipatf.'S Ihal there is no legal impediml!nl to tht;: prÂ˘posed marriage, it is rele--.ant to the particular marrlagc, thc consideration Is adequate, or in the alternative, there is full and fair di sclosure, the form is correct, there is mutual consent and that the parties are competent. Independent legal counsel is a rt!quircment, :.lthough [his may be walVi!d If there Is a full and com1>lete disclosure by each of the parties and the conslderatlon Is adequate and fair. An antenuptial agreement must be in writing and en tered In to freely,

May 1987

understandably and without fraud by persons legally competent to contract. The pfOYlslons of such agreement must be just and reasonable. The confidential rela tionship which BcneraiJy, though not "Iways, is deemed to CKlst between the prospective husband and wife requlrei the utmost good faUh and a high degree of fairness. Marriage, or an agreement or promise of m<!rriage, is a valu.lble consideration sufficient to suPPOrt an antenuptial contract. Simply 5tal(.'(/. premarital agreements betwccn parties contemplating marriage are defined as agreements betv.ecn prospecti-..e spouses made In contemplation of marriage and to be effective upon marriagf..', The requirement thilt the agreement must be In writing Is to comply with the Statute of Fmuds. Section 8-9-2, Code of AlalMma (1975), Ilrovldes that Ilromlses mnde In consideration of marriage must be In writing and signed by the party to be charged. This pfOYision is in most statutes of fraud$ because ol the risk of hasty and ilkonsidered promises when marriage is contempl"ted. The requirement of a wrhing presumably would reduce these risks. If the consldcmtlon for an antenuptial contrilCt Is either wholly or In pJrt Ihe marriage of the p<lrties, it is unenforceable unless in writing. In BIlrnhillthe court held that ant(.'flu~ lial agreements are valid, and a study of the rel(lted cases gives ample precedent for the lawyer preparing one. However, courts m<IV be called upon to scrutinize such agreements to determine whether they are Juu and ~asonabl(>. An antenu~ tlal agreement ..... ill be held valid as just and reasonable If thc pJrty seeking to uphold the agreement can show certain cond;tlons have been met. If the husband is relying on the agreement, he has the burden to show that the considcr'ltion w.1S adequatc and the (!Iltire transaCtion was fair, Just and (>(fultable (rom the other's point of view or that th(> 3grt.'ement was full y and voluntarily entered into by the other with competent in. dependent advi(e or thc Opportunity to consult with independent counsel and full knowledge of her interest In the estate and Its app"OKlmatc v,llue. M<!eTing the rC<lulremenlS of either of these tests is sufficient to gille effecl to an ant(>nuptial agreement. In Allison v. StevcllS, 269 Ala, 288, 112 So,2d 451 (1959), the court held : the Alabama Lawyer

Hit Is clear that an anlenupllal itgreement 01 one party 10 rele_ righll and Intcrem In the estate cJ tha other PMty In consideration 01 marrIage or ~up !>OrtC<! "" other val\hlble consideration 1$ enlon:eable In equity. lk"Cause of the confidential rtrlatlon!hlp of the two parties, such OOrl1(actS are scnnlnlzed "" the COUr1$ to determine their lustlce and reasonableneu. Where an antenuptial agreement Is asserted a.. barring the wile's share In thl! ~t .. te 01 her husband, the huiOOnd or his rcj",..sen\JtI~ has tile burden 01 sh0wIng that the consldCfiltlon was adeqU8Hl and Ihat the entire transaction was (air, lust and equitable from Ihe wlle'$ poll'll d view 0 1 Ihal the agrl!!!menl was freely and YOlunt<Wily entered Into"" the wife wrth competent 10dependent advIce a'\d full knowledge 01 her Inle~ In thl' estate and its approximate value. Mt,'fctIMU ' N/lf, 81J1lk v. Huhoord, 222 Ala. 518, III So. 723, 74 .... I.. R. 646; Norrell v. Thompson, 252 Ala. 60), 42 So.2d 461; Collier v. TalUm, 2)0 "lit. 2t8. 160 So. 530; 17A AmJuf., 00M.'1 SIn; 26 "mlur., Husb,1nd and Wife S§ 282, 288; 41 CJ.5. Husband and Wife! § 80; 27 A,L,R.2d 883 ~

Though antenuptial agreements are valid in "Iabama they h;'lvc been held to be invalid and not binding on the parties In the event of it divorce if the agreement was unfair to the wife. Reynolds v. Reynolds, 376 So.2d, 732 "la.Clv."pp. (197'9) Therefore, lhe prcp;!r(>r of an antenuptial agreement should make sure It is fair nil<! just In the light of the scrutiny that a court may give it. In "Iabama, trial coutts h!lVe wide discrcrion In making a property division or awarding alimony. This diSCretion is, of course, to be exercised In a judicial and not arbitrary mann(>f and subject to re...1C!W on appeal. The holding nlust not necessarily be equal

but it mUSt be equitable. Therefore, the terms 01 an antt!llupdal agreemc.'nt settling m;mers In m(> event of a dl\oOfCe must be carefully and studiously prepared to insure il is sustained if challenged. Husbands in Alabama f'IO',Y can dissent from the wills of their whcs and the Surviving spouse to homestead allowance, exempt property Of' family allowance and may elecl to waive these righls eilher before or after marriage. The provisions in the antenuptial agft.'Cment conoorni ng these matters should be glvcn care(ul consideration. When either or both parties have been married previously and acquired assels during that marriage they may wish to see the assets go to the children of the first milrdilge. This desire can be ;1(::hi(.'VCd by h.wing the second spouse walvc all statutOry rights to shar(> In the other spouse's CStat(> In a premarital contract. Section 4]·8-72, Code of Alabama (1975) provides thaI: "The right of f!lection of a SUl"llvlng spouse and the rights of lhe SUl"llving spouse to homestead allow-mel!, exempt property and family aUo.v.JllC(!, or any 01 them, may be WOlI"'lld, wholly or partially, before or alter m3rrlage, "" a writtl'fl contrnct, agn..~m(.'I1t Of a w.:rivcl signed"" thc pMy w."Ilving aftci faIr dlsct05ure. UnlllSS II pro.-ldllS to the contrary, a wal\ll'r 01 'all rights' (or cqulYilI~ language) In tM property or estate cJ a present or prO$pectl\ll' spouse ... Is a waiver 01 all rights to (>Iectlve share, homestead allowarl(c, (""Crill)! pfOl)Crty and family allowance "" ellch SPOL.l$(! In the properly of the olher at death and a renunciation by each d all bcoef'iu whkhwould DIke,.. wise pass 10 him from the other by 10testate suexesslon 01" "" virtue 01 the provisions a any will executed before the Wdtvcr or property settlcnlCnt .~

Herndon InSe, Jr., re ce ived his undersradUiJIc lind law de8rees (rom the Unr'vl!f$/ty of Alaooma, He is a plr/n(>r in the Mobile firm of lng€!, McMlIIlln, Adams &. ledyard, and serV€!d

li S presi-

dent 01 th e Mobile Bar ASsociation in 197&

141

Essential parts of the agreement The antenuptial agreement, (..f course, must be in writing and signed by Ihe par· tics. There must be a full and fair dlsf;losure that cor)ttllr) s su ffi ci(!flt financial data giving the other party futl kr)owledgc of hl ~ Or her Interest in the estate and its approximate value. Barnhill v. Barnhill, supra In <lddltion there must be suffi. clent cOr)slderalion. The im~m;lin!j: milr· rla!j:c bctv.oeerl the parties car) satisfy Ihe requirement of cOr)slderatior) for the prOp osed agreement. McDonald v. M cDonald, 215 Ala . 179, 110 So. 291 (1928): Alliron ~ Sleven$, supra Since the parties occupy a confidential relationshi p, each spo u~ should r~eiV(' com· petent Independent advice. Norrell v. Thompson, 252 Ala. 603, 42 So. 2d 461 (1949) An attorney should not auemptto rllf!diate an antenuptial agreement or In any w;r.; undertake to represen t both par· ties. If a party refu ses TO obtain represen· tation, then il should bt> noted clearly in the agreemen t Ihat Ihe p<lrty wa S en· couraged to get representation <lnd knowingly and Willfully waived his or her right to be represented. A.d~uale time is required to represent a clien t in the preparation of an antenuptial agfCemer)l. If an individual f;onsults the lawyer two WC1:!ks or less prior Ie Ihe woposed marriage, there may not be suffif;ient Time to adequately pu t together an agreement. It is not wise Te try te prC!p<lre an agrEement on very shorl neTice and hope that ul!imillely iT will su rvi~ a ch:tllcnjie. You must weigh the question of whC!thcr il lS m(m'l upsetting to tell people they have to canf;el Their >Nedding plans or have a client come b"ck several years later with an agreement that n¢W ii under attack, It may look weak because Ihere wa s not ;)dequale tln)e te negotiate fr(.'C of pressure or duress. The agreement must net be uncolISf;ionabie. The enforceability of the agreemenl, te a large eXTent, will depend upon whether it is fair. It Is difficult for an allern(.'Y te determine when an agfCCment Ix!comt.>s unconsdonable. The best method to accomplish Ihi~ is to try to prepare an agreement you believe is fair and reasonable under all the drcumst.lnces. Consider h(W,l the agreement rn;r.; l()(lk ~af$ from nO'N when a courT Is examining it. If you look at It through the eyes of a court would you

think it wa s \lIlCOnscionablel' If se, it is back te the drawing board. Agrcemellls prior to marriage musl be entered into \()Iuntari ly. Free c.:hoif;e must nOt be lacking, and coerci on and duress can affect \()Iuntarincss. This is related directly to the timing question previously mentioned. An agreement could be hurriedly entered into alld presented to a future spouse ShOrtly before a wedding date. Such an attempt at an an tenuptial agreement does not offer much hell) that it will be blndin!j: in Ihe future.

Conclusion The lilWyer dr;)ftlng the arltel1uptlal agreement must be sure there Is a full understanding of the llgreement by the parties. This essen tially me(lns all of the agreemen ts and promises between the p;)rties are Included in Ihe agr~ment. There must be nething eutslde the scope of the agreement. The parties must have had an epportunity to review the fiMI draft with f;o unsel and h;we all ef Thclr questlens answered. 8efore attempting to Ilrepare an antenuptial agreement the lawyer should look at the requirements of Seclion 43·6·72, Code or Alabama (1975), BMnhifl v. g,lrnhill and the other cases ci ted hemin.

Novv, TH EREFORE, in consideraTi on ef the premises and the mutua! cQ'.'Cnants herein eonl<lined, il is agr~ed ilS follows : 1. Both before "nd after Ihe solem"Itatlor"! of Ihe marriage bet>M.>cn the parties, each shat! separately retain all rlgh ls in his or her O'Nn property, whether now owned or hereafter acquired, including all interest, rents and profils which may accrue er result In any manner (rom in· creases In \lalue ef presen t er fu ture (W,Ined property, and each shall h£l\le the absolute and unrestricted right to diSpose:! of his or her property, free (rom any claim Ihat may be made I:rt the o:her I:rt reason of their marriage, and with the same ef. feet as If ne marrl <lse hAd bt.>en consummated between Them, whether such disposi tion be made by gift, COnveyance, ~ )e, lea~; by will or codicil er o thcr test.:lmenmry means: by laws of intestacy; or Olherwise, other th an set out In paragraph 9 hereof. 2. E<lch pllrly disdaims, waives and releases all rights arld Inll.'I"cst (statutory or o therwise) which ei ther may have or "equire as SUNI \llng spouse In <III property and est;)te of the ether, Including wi thoul limitation: (a) The right to elect te Take against Ihe will ef the elher, whether heretofore or hereafter made;

ANTENUPTIAL AGR EEMENT: SAMPLE

(b) The righ t to takc a distribu tive share In the even t of IntestaCy;

Tl-IIS AGREEMENT made this _ __ , 19_ by and beI ~n ,sometimes hereinafter referred to as husband, and someTimes hereinafTer referred Ie as wife, b oth of _ _ _ _ _ ,' Alabama,

(e) The righl to share in the other's estale by W'<lY of dO'M.!r, f;urlesy, widow's or widower'S allowance, statutery distribu tion, homcstead or otherwise; and

day of

WIT N E 5 SET l"l: WHEREAS, the parties !o thi s agrt..'(,.... ment f;ontemplate enterlnglnte the marrI<lSC rel;.l!ion with each other, and; WHEREAS, eilch of the parties In· dividually owns certain Iilngible and in· tangible prel~rty, a list of which is set ou l hereinafter in Exhibit ''I'<: Ihe nmure and extent of whi ch has been disclest.'<i 10 the other, and each dcslros Ihm all prOllerly nO'N owned er hereafter acquired by eilher shal! be free, for purposes of testamentary disposition, di\()rt:e er otherwise, from ar'y claim of !he o ther Ihal may arise by reason of their contemplated marriagc, other than as sel OUI herein;

(d) The right Ie af;t as an admir, lstrator. adm l nl s tra t ri~, executOr or executrl)( of the eTher's cs tate.

J. Nei ther party shall have nor make any claim againsl the othcr or agalnSllhe l)fQpcr1y or es tate ef the other, as spouse or former spouse, in the event the marriage sha ll become dissolved for any reason, o tht'!r thM Sct ou t in paragraph 9 hereof. 4. Nothing herein f;ontained shall p~nt either IlJrty from maklr"g <lny gift, dc.'lfise or bequest t7t' his or her will Ie er for Ihe other p'l rty, nor <lffecl the validity of same. 5. Each ef Ihe p.,rties sha ll have the sole and absolute right to manage, convey by deed or o therwise dlsl>OSI! of, or May 1987

otherwise deal with, any of his or her properl y now separilteJy owned or hereafter sep.1rately acquired in any manner what$OeVli:r. 6. Each party shall, upon request of th e other, exe<:ute, acknowledge and deliver any addi tional Instruments that may be reasonably required to carry the Intention of thiS agf\!tlfllentlntO effect, Including such Instruments tha t may be required by the 1l'lW'S of any state of jurisdiction, now In effect or hereafter enacted, whi ch may Olf(ect th e property rights of the re spective parties as between themselves or with others, and including any de('(;!s, mortS<l!Ses or leases in whi ch the party upon whom such request is made shall not incur any liability o r obllgOl tlon by complying with such request. 7. Each p.1rty has eXOlmined the (in(lncial statements attached hereto and made a part hereof as Exhibit 'W', and has had th!! oPporlunity to questi o n and exilmlne a ll Items there i n , and acknowlC!dges that fair di sclosure has been milde by the other party as contemplated under the proviSions of Section 43-8-72, Code of Alabama (1975), as amended. Each certifies that he or she has had independent and sep.1rate counsel and has been independently advised and has been 81~1, wi thout I1m!!alion, all info rmation requested. Each fur· ther certifies that co unsel has advised and Informed him or her of the legal ef· fects of this d ocument.

8. Except as provided in p<lragraph 9 hereof, in the (~nt of the death of the husband or wife or the granting a fin<ll divorce decree, neither party shall have any right to any clilim again st the o ther party or his o r her estate based on spou~1 or marital rights including, but not limited to malillcnancc, support, or pro perty settlements, by reason of or o n account of dissolution of the marriage, o r by reilson of death, 9. The other provi sions 01 thi s agreemellt to the con trary notwithstanding, th e (allowing provi~i o n s shall apply: (NOTE: All precedIng paragraphs completely nullify all marital and spousal rights during marriage, In dil,-Qrce ilnd after deilth, The parties mUSt negOtiate any right s to be preserved and set th em forth in thi s paragraph .) A. Durlnglhc period of marriage, the husband shall be obligated to provide reasonable support for the wife, taking Into consideration the finan ciill and economic means aVoliiabJe 10 the husband, etc. (Sct out My other ilgrooments,)

B. In the event of a separa tion or dl\M')rce, the wl(e shall h<M! no right o r claim agaillsl the husbMd for support, alimony, attorney's fees, costs of division of property insofar as such ri8hts may be legally forfeited or w aived, except thilt , , •• (Set ou t here their il8fCement.l

10. The p(lrtie$ hereto reserve the absolute and unconditional fight to alter, "mend or revoke thi S document, in whole or in pM!, at any time and from time to tJrlle, Irl wrlt irlg. 11 . Thi s agreemen t shaU be binding upon and inure to the benefi t of the parties hereto and their respective hei rs, executo rs, .1dministrators, legatees, dev j ~ees, leg<ll representative s al\d assigns. IN WITNE SS W H EREOF, the parties have hereunto set their hands and seals on the day hereinabove fi rst written , _ _ _ _ _ (SEAL)

_ _ __

ISEALj

SEPARATE ACKNOWLEDGEMENT FOR f AGI PARTY CERTifiCATE OF JNDEI)ENOENT COUN SEL I, ccrtlfy tha t I prepared this Instrument as Independent coun sel for my client, and reco mmend h er/his exec Jlion of same. WITNESS my hand this _ _ __ day of , 19_ .

•

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143

The Due Process Rights of Students in Public School or College Disciplinary Hearings by Albert S. Miles

An attorney may be asked to represent a student or a public educ.ulonal Ir\Stitution in a matter illVOtvins a possible student misconduct violation. The due pro-

cess clause of the Fourteent" Amendment of the U.S. Constitution applies 10

public schools as IoYCIi as public col l~8es because Ihe requirement of stale action

Jcctlvc lest" of "shou'd have kn()Y,'n" of the due process rigflts of students is emerging as mOfe important tflan the "good faith" test since the objective lest was recognil.ed in 11ar/ow v. Fitzgerald, 102 S. CI. 2727 (1982). A minor can be represented In a Section 1983 suit by a guardlim .,d litem, as has been done for 11 sixth grade student who WilS suspend.

Is fulfilled in bolh Instances, and both

public school adminiS\r<ltors and their college counterparts lire state officers.

See Nash v. Auburn Univcnily, &21 F. Supp. 948, 955, (M.D. Ala.1985). The fol10000Ing Is a r'eview of the specific requirements of due process for n public

school or college student In such a disciplinary si tuation.

Since the decisi~ of Dixon v. Alab.:Jma Slale Board of Edtu;aIiOll, 294 F.2d 159 (51h Clr. 1961), public school and college students have been consi dclt.'<I by the courts to have constitutional rlghls. The rudimentary rights of due process SCI forth in Dixon are that the student recelYC notice, a hearing and an explanation before bei ng suspended Of expelled (rom a public school. Irl DiKOn, students who had been eJ<pelled without notice or hearing from the Alabama state college cI(lhned that they had a constitutional righ t to d\le process. The court ruled fot the students. The recent decision In Nash v. Auburn Univcrslty. 621 F. Supp. 948 (M.D. Ala. 1985), upholding the due process used by the university in a dismissal for cheiltlng. supports DI)/t)fl and clarifies what specific due process rlghls are due students. If admlnlslrillor; violate the due process rlijhts of students, Ihe administrator and the school or college can be sued under 42 U.S.c. 198J. Sec \I\bod v. Stricklin, 420 U.s. 308 (1975). The "ob-

144

Even if the college is held to be free from suit under the sovere ign immunity doctrine, the individual admini strator may be found to be liable

cd, without a hearing.. for disciplinary reasons. See Cilrey v, Piphus, 98 S. Ct. 1042, 1045 (1978). The court may granl SO'YCrelg" immuni· Iy to a collegc or ulllve(5ity, as did Ihe Alabilma SUI)re rne Court In Sarradtw v. University of South AI~ooma, 484 So.2d 426 (Ala. 1986), but it is not likely il court will glYe ~rci8l'l immunity to It school

district. Even If the college Is held to be frcc from suit under the soYCrelgn im· munity doorlne, lhe individual ildmini. wator may be found 10 be liable, as in Taylor v. Troy Stale Un;ve/"$lty. 437 Sc.2d 472 (Ala . 1983). Taylor held Ihllt sovereign Immunity applll!s to collcges and universities In Alabama bee.1Use of Article I, Section '401 the ConSlltulion of Alilbama 1901, but not to college ad· minlstfiltors who iICt arbitrarily or outside their scope of duty, Tay/Of, at 474, 475. Mandamus can be ordered to require such administrators to ael, the court held. In Pcr!!Z v. Rodriguez 8(», S75 F.2d 21 (1st Clr. 1978), all allQrrlCY fees and othe r costs were ordered to be paid by the Uni· ve(5ity administrator who suspended Slu· dents (or disciplinary reasons without a hearing. while the University was granted immunity. If the administrator should have knoYln the due process rights 0( studl!nts, as SCI forth in GoSs v. lopez. 419 U.S. 56S (197S), then he or she can be held 10 be personally liable for all cOSts which spring from hlSiher violalinlj the student's due process rights, Pcr!!z held. In a case recently decided by the Alabama Supreme Court, PresCO(t II. Pritch· ell No. 85-935 (Ala. Sup. Ct. March 6, 1987), the Court of ciyil 1I1)I>eals had upheld compensatory darnagc!S, Including emotlonallXlirl ilr'ld suffering. againstlwo ofOcers o( a stale agency, whom the plaintiff had sued in a Section 1983 action. The Alabama Suprome Court gran!. ed certior.1ri 10 consider whether the court of civil appeals was corrCCt In holding the petitioners liable under 42 U.S.c. 1983. The court lound there WilS no evidence of a Section 1983 vlolalion, and thus found it unnecessary to address the Issue of whether money damages can be upheld In a Section 1983 action in

May 198 7

Alab.1ma, or other issues raised by the petitioners. Thus, Iml)1icitly, the Taylor prccedCnI, allowing only mandamus and In junctive actions against individuals found to h~ vi(llated Section 1983, was upheld. The tmms procedural due process and $ubS/ilnlive due process are used in this ilrtictc. Procedural dut! process "contem· plllles the rudimentary requirements of fa ir play, which irlcludes a fa ir and (men heari ng." IIlmon If, MorRan County, 245 Ala. 241, 246, 16 So.2d 511, SIS (1946) Substantio,e due procCS5, or the substdi\Ce of the school's decision being reasona· ble, is achlC'v'Cd if the decision is not "a substantial departure from academic norms." ReBenlli of The Universl!y of Mlchi8an v. Ewins. 106 S. Ct. 507 (1985) The following 11 points address the circumstances In which due process Is applicable In a public school or college stu· dent discipli nary hearing and, once II Is determined that due process applies, the specifics of what kind of due process is owt.'(/ 10 s1UdenI5. 1. The generitl rule is that only stude nts in public schools and colleges have due process rights. See !,.gnl.Ook v. Curran, 489 5o.2d 525, 528 (Ala. 1986). The gatCViay to Ihe due process clause in the 14th amendment of the U.s. Constitution Is "state action:' Since Rendell·Baker v. Kohn. 457 U.S. 830 (1982), "stille action" has not been construt'(! as a private school's receiving a great amount of governmenl ~upport, but "stale action" usually applies only to students in public, not privare schools, However, in VdnLook v. Curran, the Alabama Supreme Court neld that while only state action Invokes the procedural due process clause, If a private school's contract wilh the p;lrenl5 or student Includes terms that call for the use of due process, then the private school must grant Ihi! student due prOCess. This Is because the school Included a right to due process In the ICrms of thl! contract, t'\Ien though It did nOI have to. 2. Immediate temporary suspensions comport with due process where a stu· dent's presence "poses a conllnuing

Tim Alabilmil Lawyer

dilnger to persons or propert y or an ongoing threat of disrupting Ihe i1caclem· Ie process'; and if the necessary notice and hearing "follow as soon as Is praclic.lble. Goss If. lopez, at 58] The Goss decision agrees with the diStrict court's guidelines In this case thilt in such il suspension, a hearing should be held within 72 hours of a student's removal. ] , less stringent procedural due process Is re<lulred when there Is an o1o;ademic dismissal, which results from academic evaluations, than when there Is a dismissal for diKiplinary reasons where facts are questioned, such as for cheating or n(ln-academic misconduct . The dismissal of a student fo r poor ao;ademic performance COl'lll>orl5 with the requirements of prOCedural due process if the student had prlOl' notice of the faculty dissmisfaction with h 5 performance and the possibility 01 dismissal, and thede<:islon to dismiss was careful ilnd deliber· ate. No fOrmal hearing is required. The Boord of Curalors of The Universily of Missouri v. Horowitz, 435 U.S. 78, 85 (1978) lust as Norow/tz spoke to the procedural due process required In an aO;3demlc dismissal, Regt'nU o( The University of Michigan v. Ewlns. 108 S. Ct. 507 (1985), addressed substantive due process In ilcaclcmic expulsions. EwinS held that II student's substantive due process rightS are /lOt violriled, if the academic dismissal was not "a substantial dep<\rture (rom academic norms.H Ewing at 514 In I-Iaoorle v. The University of Ala· bama In Birminpm, 803 F.2d 15]6 (11th Cir. 1986), the court mentioned both H

Horowitz imd EwinS and used the procedural due process standards of Horowitz and the substantive due process standards of EwinS to decide this academic dismiss.al case In fiNOt of the University. Recently, a case which held that less formal pre-<flsmissal proceduf(.'S are required whOre the dismissal w.lS for (10;(1demic reasons WilS denied cerllorari by the U.S. Supreme Court. Mlluriello If, UniV(lr~ity 01 Medicine and Oentl$try of New /efSey. 781 F.2d 46 (3d Cir. 1986), cert. denied, SS U,S.l.w. ]232 (U,S. Oct 6. 1986) 4. In dlscipllnilry dismissals, as ~II ilS in nc.ldemlc dismi5sills, ooth substantive and procedural due procen are needed. Slrbstilntlve due process in a disciplinary dismissal WilS considered In Krasnow v. VirSlnl,l PolyU!Chnic Institute, 414 F. Supp. (W.O. Va. 1976). The Court held that the college's use of a rule allowing for disciplinary penalties for off·campus violtllions did not violate a student'S substantive due prOCess "ghts. Dixon'$ "rudiments" of notice, hcarlng and explan<llion are a good guideline to procedural due process. Procedural due process refers to the implementation of the rule's being filir. The Mathl!W5 If, fldridge, 424 U.S. 310, 3]4 (1976), balancl n8 mst i1ppUes here. Due process will ada pt itself to the situation; It is nOt rigid . Nash al 955 makes the point that due process :lpplles to public high school, undergrad· uate and gr3duate students. and allows for variations according 10 the type of student.

Alber! S. Miles is profcuor, adminiSlr,)· l ion In hlihet educMion, ,'lIthe Univer· silY of Alabama, where he received his law dcSfCe, He also is (I sraduate of Duke University funde'8radwle ck.srce), Columbia UniVCfsity (masler's), Cornell University (ph .D) alld Harvard Business School.

145

5. Some notice is required in procedural due process in a school or college di sciplinary setting. Nash holds that as long as the charges and their Implications <He made known before the hearing.. the list of wit rlesses and their expectI.>d testimony can be Hiven to the {lCCU~ studenl at Ihe hearing itself in a case conÂˇ cernlng cheating, Notice can 00 oral or wrillen, and can be given ImmC!dlalely before the hearing. Nash at 954 "The notice should contain OJ statement of the specifi c ch<lrges and grounds." D ixon at

156 6. There usually is no absolute right to hflVe an attorJ'lCV present 10 present the studeJ'lt's case In procC!dural due process, Nash held, at 957. Auburn University allowed pl<lintiffs to have counsel present during the hearing, but the counsel was aJJ(J'IoV(!d only to <I(Jvi se plilin tiffs and WilS not permitted to actively Pflrticipate in Ihe hearing. The Nash court Stat",>d that Auburn, by allowing plaintiffs to have coun sel presenl, afforded Ihe plalnl lffs more due process than the Constitution require s. Nash cites Clibrilowitz v. Newman, 582 F2d 100, 104 (1st Clr" 1976), 10 illustrate that thi s First Ci rcuit rulin g allowed a student to have an attorn(,."Y present during a SChOOl disciplinary hearing bec~ u se the same stud ent was In\()lved In a pcrldlng sepamtc crinlInaillction. In Gabrllowitz, this unusual circum stance justified the attorney's being p~ scn t at thc heilring. Still, the student wa s allowed 10 h~ counsel present only In an adviSOJy cap.lcity to il."$$en the danger of self-Incrimina tion. In Fren ch v. Bashful, 303 F. 5upp. 1333 (E.D. La 1969), the court held Ihal a student had a right 10 have a retained (not appointed) counsel present at a disciplinary h~iIring for suspension or expulsion if Ihe university wa s ~pr(lse nted by a third-year I....... student, or someone else with legal training.

D ixon is silent on Ihe question of legal rcpresent<ltion at student disciplinMy heilrings. 7. rhe rules of II student dlsclpllnary hearing can be informal. Counsel often

14 6

ilre allowed to students during disciplinary hearings, albeit wil h restri ction s notoo aix:r-&, and ohen are reminded of Ihls (Iuote from Board of Curators v. Horowitz, at 66, "(a) school Is an aCildemic Inscitutlon, not a counroom or administrative hel.lring room." In Boykins v. Fairfield Board of fducalion, 492 F.2d 697, 70! (5 th Cir. 1974), lhe Court aJ!(JI.Ye(l the u~ (If heMsay ill a hearing and noted thai laymen in such a student disciplinary hearing arc nOI bound by Ihe common law rules of evidence. Aaron v. Ala bama S1.Jtc Tenure Commission, 407 So, 2d 136, 138, Ala. Civ. API>. (1961) held, "The (he<lring) Board Is all(Jwl.'<ilo ildmit ilnd consider evidence of probative value, Il'o'en tholJgh II mlghl not be admissible in il court of law:' AI the hearing. the Sludent has the right to present his defense against the charges and "to produce other oral tes timony or written affidavits of witnesses in his beh.1lf." Dixon <It 159 8. The form and nature of the heilring Ciln be before one admlniwlttor or il committee, The "llmrng and content of th e notice and the nature of the hearing will depend on approprlale accommodati on of the competing interests Involved." CoS$ v. I.ope~, 419 U.s. 565, 579 (19f'5) The student has a right to <In impartial tribunal, but Nash stales at 957 that "the law 1r1 l h i ~ clrcuil is $l!l1led that previous contact with the Incident and even with Ihe initiallnveslig;l!ion does nOI <lutomaIlcany disqualify one from hearing and deciding a ca se in a col lege disclpllnl.lry proceeding:' 9. No right to cross-examination exists In a siudeni ml~COllduct h/,;'urlng, NaSh states at 955. Nash stales Ihal the D ixon stand ard s do 110 1 requlr<! the OPIJOrtunity of cross-examination. Naslt nOles tnat the procedure Auburn University alIQYI(.od, whi ch was to .111ow the plain tiffs to ask the ildverse witnesses question s by direCting their que~tions through the chief hearing offi cer, W,lS more procedural due process tnan called for in Dixon. Nash al 955 10. Students are entitled to an cxl)lana-

tl on of the results of the hearini:l and the Implications o( the decision. Dfxon held <It 159, "If the heMing is not before the Board (of Education) directly, Ihe results and findings of Ihe hearing should be pmst!rlted In a report open !ei the student's Inspection." Wright v. Texa s Southern Unlvcrslly, 392 F.2d 728, 729 (5 th Clf. 1968), held that af!er the hearing.. the findings should be presented to the student in a report. Also, see French v. Bashful at 1336. 11 . No right to an (lppeal from Ihe decision of a siudent heari ng Is called for, ilCcording to Nash at 957. ';.\11 that due process requires Is notice and an OI)IX)rtunity fo r hearing." and ci tes Coss v. lrJpe~ ilt 579, <lnd Dixon at 158-159. Thus, Nash, at 957 concl udes regarding the plaintiff's complain\ of no meaningful appeal, that " this COurt cann ot find a vi olation of a non-cxistent ri ghl :' Conclusion Na sh v, Auburn University upholds D ixon as the law In this circuit concerning due process in student misconduci h~a ri ngs. Once II public ~chool or coiicge student is given what is seen a ~ fair notice, hearing ilnd explanation for a disCiplinary dismissal, or notice and cilrefr,.rl deliberati on by faculty in an academic dismissal , flO furlher appeal or other procedures ilre necessary In order (or the adrnini strillor or school to afford due process to the student involved. Fililure to obsclVl.! the rupimenls of due process when the a(lminlstr{ltor "knows" or "should h~ known" what th ose rudi ments are can subject bolh the administrator and the school 10 liability, under 42 U.S,c, 1983. Thu s, an administrator is well <ldvised to know, publish and foHow due process as set forth in Dixon, Nash arld by th e U.S. Supreme Court . It Is wi se to realize Ihat due process is not a rig id set of rules, and " fairness" 15 important. Thu s, II 15 a good id/!a f(lr a sch ool or coitege to grilnt as much due p roce~s as it thinks is allowable, gIven a balance between the circumstances, the C!ducatlonal mission of the school and the right s of Ihe ~ tudefl/ . â&#x20AC;˘

MiJ 'I 1987

Recent Decisions by Jo hn M, M illing. Jr., and Dallid 8. Byrnt, Jr.

Recent Decisions of the Alabama Court of Criminal Appeals Balson appl ied

in Alabama Cliff v. SI'IIC. 1 Dill. 246 (Februal'y 24, 19671, Nickerson II. St.lle, 6 Dill. 627 (February 24, 1967), OW'E'S II, Slale, 1 Dill. 226 (FltbrU'.lry 24, 1967)-ln BalSon II. Kenrucky, 106 S. CI. 1712 (1986), the su preme court rull'tl that <I state crimina l defendant could establish il prima facie case of

radal discrimination, viola tive of the Fourteenth Amendment based upon the proseculloo's usc of peremptory challenges to slrlke members of the defendant's race from the jury venire, Ilnd that once the defC:lldanl had made the prima facie showing. the burden shifted 10 the prosecution to come (orwaKl with race-neutral ex-

Applying Barson retroactively, the \rlal court must gi...e the district (1\' torney an opportunity to come forward with race-neulral cxplan(ltions (or his use of peremptory Strikes. If hI;! Is unllblc t(l do so lmd Ihe trial court determines that the f<lel5 established a prima (acie case of purposeful

discrimination, a defendanl is entitled to a new trial. See aha Ell Parle OI\ICns (Ms. 85-1008, January 19, 1987).

1987)-The plaintiff filed Ihis tOrt aclion, and the defendant filed an an路 sINer and nlOtlon for summary judg-

ment based upon the pleadings ilnd an affidavi t, The motion was ~Ct for a hearing. The plaintiff's anornt.>y filed r'IO counter affidil\lit and fai ed to appear at the hc,uing. ilnd the court granted the defendant's motion, The plaintiff obtain\..od new co ... nsel and filed a motion pursuanl [0 Rule 6O(b) (6), ARCp, alleging Inadl'<lu~ te repro-

Recent Decisions of the Supre me Court of Alabama-Civil

sentallon by (Of fllcr COUI1!JC1. The molion was (lVe(ruled and this appeal WilS

C ivil procedure .. . Rule 60(b) Tolleson, 21 A8R 1620 (January 9,

cases relief will

taken. The supreme court affi rmed. The Courl Sli1ted that in ordInary

a complaint d

not

be accorded on

IneffeCIi~ Of

Incompetenl counsel. Re lief may be gran ted

planations (or those challenges.

Thereafter,

the COUrt

determined that

Inc Batson doclslon was to be retroac路

tlvely applied. Crimlh v. Kentucky, (No. 8 5路522 1, January 13, 1987) The Alilb.1m(l Supreme Court also determined Ihat the Bal.son decision Is to be appllKl retroactively under the Alabama Consti lution. Ex Parte Jilckson, (M s. 84-1112, December 19, 1986) _ So, 2d _ (Ala. 1986)

The Alabama Lawyer

fohn M, Milling. Jr, is a member of the firm of Hill, HilI. Carwr, Franco. Cole & Black In Montgomery. !-Ie Is a graduam of Sprlns Hili Collesc and the University 01 Alabamil School 01 Law. MI/Uns CCJ\Ie/1 the civil JXlrllon of the decisions,

David B, Byrne, /r., is a graduate of IhtJ University of Ala路 barna, where he received both his undergraduilw and law dt'srees. He is a member o( the MOfllsomcry firm of Robison & BelsCl' ilnd covers the criminal JXlrlion of the def;islons,

147

only where ClItraoroinmy circumstances exist, as where ',he personal problems or psychological disorders of an atforney C,lUse him to neglect a case to the extent that a default or summary judl:lmer)t Is entered against the unsuspecting clien t:' It Is not enough to point to the mere (act that one's attorney was absent (rom a scheduled hearing or merely negligent.

Ci ... iI procedure •• • J.N.O.V. .... motion for new Irial Luker v. City of Brantley. 21 A8R 1629 (January 9, 19871- ln this case, the supreme cou rt seized the opportunity to discuss the motion for J.N,aV, and the alternative motion for new trial. The court noted that there has been some confusion ilS to the proper use of these tv.Q motions. A motion fat j,NOV. '5 pr0perl y gmnted only when the mQ'olant would be entitled to a directed verdicl. On the other hand, a ne'W trial may be granted merely where the verdict is inconsistent, conlradictOf'y or where erron· eous c hafBe~ are given . The court also announced a nL'W practice on I>cst·trial motions, When a trial cQurtgran ts a mOflon for J.N.O.V., the appellate court may then: (11order entry of judgment on the verdict; (21 order a new trial; or, (3) remand the case to the trial court for reconsideralion of the motion for new trial. Consequently, when: an alternative motion for n(.W trial was made and argued but was not ruled on by the trial court, the appellate courl may cx mcro mow remand the ca se to the trial court with dlrectons to recon sider and rule upon the motion for new trial.

ceased's attCt'lding pIl,osldans. Smith tllStiflcd that the dcce~scd received the medications he ordered and in the appropriate doses. The trial cou rt granted the defendant's motion for summary judgmen t, and Ihe supreme court r('Versed ,

The court stated that Rule S6(el, ARCP requires that evidence In support of motions for summary ju(.l,~ment must be "admissible at triaL" Th'lI Is, the deponent or the person signing Ihe inrerrogatory answcrs must have ~1)Crsonal knowledgti' of the (acls or set forth faclS th at would be admissible In evldenct!, In thi s case, the hospltal administrator was relying ClI· elusively on the hospital records. However, neither the medical records nor ccrllflcd copies thereof were made exhIbits to the Interrogiltory ansWI;lrs. In such case, Rule 56(e) IC(lulr<!S that sworn or certified copies of all documents reIlcd UI>cn be attached to the Inrerroga. tory ans....-ers, Wi thout the hospital records the Interrogatol'j' answers are mere hearsay and Inadmissible at Irlal. RegardIng Smith's dcposiliOfl, the SUI)reme COU rt (ound that his opinions v.'Cre based upon "a review of the ChM" and "Interview'S with hospital personnel " and, consequently, his tl;lSlimony is merely hearsay ococ;ause the chart was not made an exhibit to his deposition and there were no affidavits or depositions of the various personnel he IntervlevlCd- Smlth's ClIpert opinions ....-ere not based upon his exam· Inatlon of the deceaH!d or any matters wi thin his personal ~ nowledge.

Conlrads •. . Ci... il procedure .••

court finds bn:ach ot implied PI"()lTlo

Rule 56(e) \lVcldl 1'. Hou~ ton County H05pilal Board, 21 A8R 1598 (January 2, 1987)MrS. ~Ic h died while II p.'ltient at a hospital owned and operated by the Houston County Hospital Board. Her humand filed suit alleging th at her death wa s the result of the hospital's ncgllgent admin. istration of certilin drugs, The hosplral fl loo Its motion for sum· mary Judgment 5Ulll>ortcd by Its administrator's ans....-ers to the pla lnl lff's Interroga tories. In those answers the administrator listed the drugs given and identi· fled each physici an ordering the drugs. The trial Court ar~ considered the deposition of Dr, Smith, one of the de-

ise nol to hinder or delay pe rformance by other parly cslablishes actual breach of contrac i

148

EIIgcr Bcaver Buick, Inc.

1'.

Burt, 21

ABR 1588 (Janu<ary 2, 1987}-8urt (onlercd Into a 12-menth enlployment con· tract 10 act as the defendant's sales manager. During the course of the con. tract, the defendant told Burt to InstrUCI his salesmen 10 engage in certain IlIe~al and unlawful aclS. Burt refused and the dcfend<ant suggesled that he look for other employment. E..entually, the situation deterlooted to the point where Burt resigned. Sub5equently, he flied suit al leging Nconspiracy and interference wi th a Contrnc;:t." The jury found in fil\lOr

01 Burt (or breach of contract, The supreme court affirmed, Cillng Corbin on Conlfact.s, Sections 571 and 947, Ihe COurt stated that generally contracting I)artlcs Impliedly premise not to hinder, p~nt or make burdensome the olher's performance. A breach of this implied promise may be construed as an actual breK h of lhe COiltr<act, thereby giving the other party a cause of aelion on the contracl. Ills Immateria! whether thc Implied promise Is il fiction o( the court or Is II Justifiable Inference of fael. In some cases, the wrongful condoct may be treated as a tort, In Ihls caS(!, Burt was harassed and antagonIzed to the point he was no longer able to perform his Job and Jt.>ft with no choice but to resign. This amounled to an actual breach of contracl. Torls. , , Section 339, Restatemenl (Second)

of TorlS, again adopled Motes v. Mathews, 21 ABR 1233 (November 9, 1986}-A falher brought suit for the wrongful death of his 12-ycarold son which occurred on premises owned by the deferldant and which had been negligently excavated, leaving large holes with steep embankments. The (Iefencl.lnt med a motion for summary judgment alleging the child was a trespasser and, therefore, his only duty was nOI 10 willfull y or wanlonly Injure him or to ptJ t traps or pitfalls in his W;ly, and 10 warrl him of a known danger only after knowledge of his presence. The tria! court granted the defendant's motion for summary judgment, and the 1)laintiff al)peals. The supreme court 1'CC000lzt!d that the defendant's motion for summary Judgment was b.'lsed upon whou has been callt.'d the "conventional duty" and also recognized Alabama has aPl)lIed thaI theory of liability over the years. The court, however, stated where trespassers YlCre children, and the condition Is arti. ficial rather than nalural, a more human· itarian doctrine should be used, Therefor(', the supreme court stmcd that from henceforth the duty which an occuplcr of prol>crty Q\.VCS to a Itespasslng child is set forth in Section 339, Restatement fSecond, of TorlS, as foll O\vs: ...... posselSor (occupier) of land Is wblect 10 children trespassing thereon caused by an artinclal com/ition upon the l.and If Ma y 1987

-(a) the plac~ where the condition ~ists is ooe upon which the possessor kllOW$ 01 hilli l!!a§OO to kl10W that chil· dren are likely to tresp.l§s, and «{bl tlta conc/tion I~ oned which the pOSSL'Ssor knows or has reason to know and which he realizes or should re~l · ill! will ilMll", an unreasonable rl~ of dealh Or ,;(!rlous bodily harm 10 such children, and -(cl the childltfl because d their )OUth do not dlloCOYef Ihe condilion or realize Ihe rl~ 11lY01~'<I In Intermed· dllng wllh 11 or in coming within Ihe area madtl dM8tlrous by It, and "(d) the utUily to the possessor or maintaining !he condition and Ihe burden d eliminating lilt! danger art stlght lIS ton1XIred with Ihe risk to children InYOIl'ed. and (e) the posses§Or f,.ils 10 ~rclse reasonable earn to eliminate the (bnger or olherwise 10 prolect the children." (en11)hIlSls supplied)

Recent Decisions of the Supreme

Court of Alabama-Criminal Motion for continuance-the legal standard State v. Saranlhus, 21 ABR 1189 (NO\Iember 1966)-Saranthus had sill cases ~Jendlng against him which were docketed for trial on May 2, 1984. k· cording to the motion for continual'lce filed by the defendant's atlorney, the district attorney had represented to her that the Slate \.\Ould not try the instant CilSC on May 2, but would PfOl.:eed on three or fO\lr other cases. Defense coun· sci stated she relied on the district at· torooy's representations and prepal'Cd for the other cases. IV. a bench conference on the motion lor continuance, the defendant testified he needed time to suI>poena t'NO witneS5e5 who 'NOUld give evidence tending to cie:lr him of the chargc. The supreme court, speaklng lhrough Justice Almon, reversed thc conviction and set lorth the legal standard to be a~ plied, as follows : "i\ moIlon for oonllnuance II addressed to the discretion of the Court and Ihe Court's ruling on It will not be disturbed unless mere Is an abuse or discretion. Flefc;hf!r v, Stale, 291 Ala. 67, 277 So.2d 882 (l97J), II the following principles are satisfied, 11 !rIal COUrt sI"tooid gt,ln/ 11 moI/on lor COf)tlnuan« on the ground Ihat iI w lln~s or cvidcoce is ab!cnt: (I) lhe expccmd I!\Oldeoce mu~ be mlllcrial and competent (2) lhe~ mu~ be a probablUty Ih:at The Alabama Lawyer

the evidence will be foI1hc;omlnglftl"oe

use Is continued; ..nd (1) the fTl(J\/lng

party mUSI have I!!!erdsed due diligence to secure thct.... ldeoct!. /(M1Nles v. Blue, 209 Ala. 27, 12, 9S So. 48t, 48S·86 (t921)"

Applying that standard to Ihe fitcts of Ihls case, the trial court'S denial of the continuanC<! was an abuse of diseretion. Justice Almon concluded lhal the district attorney's statement that lhe witnesses did not exist, sl,lndlng alone, was not competent evidence and the trial court should hiNe accordEd it no 'Neight at all.

Prosecutor's closing argument- the hint of missing facts \¥.Ish/ngton v. S1.1Ie, 21 ABR 1225 (December 1966)-Washlnglon was con· victed of t\.',l() offenses of murder and sentenced 10 serve 1\.',1() consecutive 99-~ar terms in prison. The supreme court granted certiorari to determine whether the court correctl y determined that certain remarks made by lhe prosecuto( during closing argumenl did not require reversal. During summation Iyt' the prosecutor, he stilted the (oll()YJing: {Mr, Co,:>elllndj; Al'd there lire Certllin things, ~ause 01 our rules thm we c~rmot p~nlto )00, but you heard Sergeant WiIll,IIT1SMr. tthy: Your ~tonorMr. Copetand: - telling youMr. Ithy: - el(Cuse me. AI. lhls time. may I lIpprOlich the! Bench! Mr. Copeland: ~II , If you'YIl got an obJection, will you(al bench) Mr, Irby: Judge, WI'! lOt an objection 10 lhe OI~rlCI AlI(H'leV "*ll1n8'0 the fact Ihllt under the rules of law, It Is certilln wld~nce that's-undCI tiM! mit'S of law Ihe lury Is belnllfor\)lddCIIto hellf ce.· tilln evidence 10 Inler some II(lS",lve prejudicial remalks towilfds Ihis dt.4endllnt, Mr. Copeland: No, Idldn't Intend it that W".f>/, lilt waS IntelJ)leled tk;tl Wily, }Ou know, I lIpologl1.t!. Mr. lrby: The Inference IYilS made to Ihe Jury and I'd Just like to noto It for the record. The COUll: Okay I OYeffule the oblf!Ction, The Supreme Court of Alabama. speaking through JuSllce Beatty, rt.~rsed

Washington's conviction, The supreme court noted, "It has Ions been Ihe rule in Alabama that, although counsel should be given considerable latitude in drawing reaSOOdble infelences (rom the evldcnce, they may not argue as a (act Ihal which 15 not supported Iyt' Ihe evidence. Brown v. SldtC, 374 So.2d 395 (Ala. 1979); Espey v. SUIre, 270 Ala, 669, 120 So.2d 904 (1960). etc. Notwlthstand· ing thatlatitvde, Justice Beatty, in a sharply-worded opi nion, found that the prosecutor was making reference !O cerlain facts which .......eft"!: not In f..'V idence, bul which, as he argued 10 tht! Jury, he would hiJYe introduced If nol for the (»(istence of our evidentiary rules. H

Recent Decisions of the Supreme Court of the United States

Inve nto ry vehicle

search-i mpounded

Colorado v. Blmine, 93 L.Ed.2d 739;

55 lW 4105 Oanuary 14, 1987)--A Boul· dl.'r, Colorado, police officer arrested Ber· tine (or driving his van while under the Influence of alcohol. After thl.' defl.'ndant WilS taken Into custody and before a tow truck arriYed to take lhe v.m to an im· poundment lot, another offker, <"Cling in accordance with local police practice, inventorit..'CI the van's c()ntl.'r"lts. The officer opened a dosed backpack In which he found various containers holding controlled substances, cocaine, drug pam· phernalla and a large amount of cash. Prior 10 Ber1ine's trial on charges in· cluding drug offenses, the state trial judge granted the defendant's motion to 5U~ press Ihe evidence (ound during the in· ventory search. The stolle coun delermined the seMch did not violate the de. fcndun t's rights uncler the Fourth Amend· ment o( the Federal Constitution , Howcycr; it held tha t the scarch violated the Colorado Constitution. The Colorado Supreme Court "ffirmed on the Federal Constitutional violation. On certiorari, the Supreme Court was asked to decide whether the Fourth Amendment prohibits the state from prO'Jinglhe drug charges with evidence discovered during the Inventory o( Ber· tine's van. Chief JUSlice lIehnquist held Ihat the search d the dosed backpack found In an impounded \lChide during a warral'lliess Il"M:!nlory search of the

14,

\'Chicle did nOl violate the Fourth Amendment of tne Constitution. The Sup~e Court ruled that Bertine's case was con trolled I7t thl.! principles gCM!rnlng Inventory searches of automobiles as set forth In SOUlt! Oakotd v. Opperman, 428 U,S, 364 (1976), and Illinois II. La(aYCfle, 462 U.S. 640 (1983), rather than those governing searches of closed trunks and suitcases conducted solely for the purpose of lrM!Stlgating criminal conduct, See United Sid les v. Chadwick. 433 U,S. 1 (1977) and Arkansas II, Sal1dcrs, 442 U,S. 753 (1979), which were distinguished , Justice Rehnquist reasoned that the policies behind the warrant rpquirement and the related concept of proooble cause are not Implicated In an Inventory search, "which S(,IV('S the strong g(M!rnmental interest in protecting an ov.<ner's property while it is in IlOllce custody, thereby insuring against claims of lost, stolen or vandalized property and guard. Ing the police from danger:" The court futther noted there was no shov.<lng that the police, who v.ere following stomdardiled care-taklng procedures, acted In bad fallh or for the sole PU'llOSC of Investigation. MOf'CO'o'er, the court said that police, before inventorying it container. are not required to weigh the strength of the individual's priliaCY Interest In Ihe conlain· er aga inst the possibility the container might serve as a repository for dangerous or valuable items. Affirmative defense-burden of proof M arl in II, Ohio (February 1987)-May a state require that a defendant bear the burden of proving self-defense In a murder casel The Supreme Court. In a fiYl..'-ta-four decision. s.l id yes. In all states except Ohio and South Carolina. the prosecution must disprove a self-defense claim Ofl«l a defendant has raised II. Those two states haIIC retained the common law rule self-defense is an afflrmatl~ defen'e thilt the defendant must dcmons1tate I't' a preponder,mce of the evidence. (emphasl5 added) The opinion by Justice White upholds the state's right to require the defendaO! to l)rOV(! the c;i<lim o( self-defense by a preponderance of the evidence, Justice ~II. joined by Justices Bren· nan. Ma~hall and 8lackmun. di5sentcd, Powell argued that the rl.'qulrementthat

150

a defendant proo.c selklefense often will conflict with the requirement that the prosecution pfOlle premeditated Intent to kill , Implyins. thereby. i1 shift in the O'v'Crilll burden of proof. Retroac tive effect of Batson Griffith II. KenfUCk)l Brown II. UnllNl 51.111:'5. 55 LW 4089 (J~nuary 13, 1987)In Batson If. Kcmudy. 106 S. Ct. 1712 (19861, the court ruled that a 5Iale crimi. nal defendal"lt could establish a prima fl1cl(.' case of racial discrimina tion vloliltive of the Fourteenth Amendment based on the prosecutlon's use of per· emptory ch<lllengC'S to strike membe~ of the defendant's rac:e from the jury ycnire. Also. once the defend •.mt has made Ihe prima facie soo.vln& the burden shifts to the prosecution to CORle fOfWard with a neutral explanation lor the usc of its peremptory challenges. The Supreme Court, speaking through Justice 81i1ckmun. held Ih<ll <I new rule for the conduct of criminal prosecutions, such as the ruling in 8il1SQn, supra, a~ plies retroacti vely to all cases. $tate or federal. pending on dlr<.'Ct review or not yet final. with no exccl)tlon for cases in which the new rule constitutes a "clear break" with the past, The "clear break" exception creates an equal protection problem of ,lOt trealing Similarly situated defendants the same. "The fact that Ihe new rule may constitute a cleM break with the past has no bearing on Ihe 'ac· tual im..'quity that results' when only one of many similarly ~i t uilled defendants recelllCS Ihe benefit oflhe new rule:' CaRital murder-sympatky instruc· tion California 1', Brov..-n. 55 LW 4155 U.IIlUlllY 27, 1987~Does California's jury Instruction ordering jurors not to be swayed by "mere sentiment. conjecture. sympathy. passion, prejudice. public opinion or public feel l n8~ go too far in narrowing a panel's diKretion in ImposIng Ihe death penaltyl The Supreme Court, in a five-la-four decision, said no. !+. jury found Brov.<n guilty of forcible rape and flrsl.degree murder in his Call· forola Siale Court Irial. At the penalty phase. the trial COurt Instructed Ihe jury to consider and weigh the aggr;1v.1ting and mitigating circumstances, but cautioned that Ihe jury "must not be swayed by mere sentiment.. conjecture, sym-

pmhy. passion. prejudice. public opinion or public fceling." On automatic appeal. the California Supremc Court rC\l(!rsed Brown's deilth sentence, holding that the quottod Instruction viola ted federal Constitutionallaw by denying the defendant the righl to haIIC "sympalhy factors" raised I7t the evidence considered by the Jury when determining an appropri.:lle penalty. A sharply divided Supreme COurt held the inS1ruction did not viola te the Eighth and Fourteenl h Amendmen ts WhO.l gillen during the penalty phase of a cilpltal murder trial. The key \/OtC in lhe case belonged 10 Justice Sandra Day O'Connor. The In· struction standing by itself, she wrote in her concurring opinion, glycs the Jury needed guidAnCe. HO'M.........,. taken in the contex t of the jury Instructions as a whole. along with the prosecutor's closing argument. Justice O'Connor COI\CIuded Ihe anti-5ympathy InstNClion might go too far in reSlricting the jury's ability to take into account ~a ny relevant mltlg.1llns evidenCe regarding the defendan t'S character or bac~8round:'

Miro1nda- advise suspect of all accusations Colorado If. Spr;ns. 55 lW 4162 (J,lnu<1ry 17. 1987}-Mu5t a suspect be Informed of all accusations ~ bout which police will question him for il Ml'r,lnOil wai\o'Cf to be ""Iidl The Supreme Court. split seven to two, said no. In February 1979, Spring and a com· p.lnlon shol and killed Donald Walker during a hunting trip in Colorado. Based upon information recei~ from an infor. milnt regarding the defendant'S involvemenl in Ihe interstate transportation of stolen firearm s. ATF agents set up an undercover purchase of nre~rm s from Ihe defendant tIrld arrcSt(">Q him. After being advised of his Miranda fightS. Spring signed a statement that he understood and waived his rights and was wilting to answer Questions. Thc agents then questioned him i1bout the firearms viola tion thaI led to his i1rrest and, In addition, asked him whether he had ever shot i1nyane, tn answer. Spring Slated that he had "shot another guy once.~ Approx· Imatelya month latcr, Colorado law enforcement officefi agilin ~ Spring his Miranda warnings and he again signed a statement that he unde~tood his rights Mo y 1987

and was willing to waive them. He then confessed to the Colorado murder of Walker and 5Igl1~>d iI statement to thl1\

effect

Spring was charged In a Colorado Statc Court with first-degree murder; he moved to sup press both the March 30 and May 26 SUllenlenlS on th e ground thot his

waiver of Miranda rights was invalid. The trial COUl'! held dlat the ATF agclll$' failure to inform the defendant,

bc(o~

the

March 30 interviev.-, that they would question him aboullhe murder did nOI affe(t the wai\ICf and, therefore, the M arch 30 statemenl shou ld nol be suppressed. The Colorado Court of Appeills reversed holding Ihc defendant'S waiver of his Mir,lnda rights before Ihe March 30 ~t(l tement was invalid because he was nOI informed Ih(ll he would be questioned aooul lhe murder case, and the stale had failed to prove the May 26 statement was not the product of the prior illegal stalement, The Colorado Supreme Court ;lfflrmed. Justice P(,.vell delivered the opinion of the (ourt. In Miranda Y. Arizona, 384 U.S, 436 (1966), the court held that II suspect's waiver of Ihe Fifth Amendmen t priYilege 1l8;linSI self-I ncrlmilliltion Is valid only if it is made voluntarily, kn()'¥Yo ingly and intelligently. Mimnda, ;It page 444 The Spring case p~ents the qlles-

lion of whelher the suspect's awareness of all the crimes aOOl.lt whi ch he may be questioned is relevai"lt in dCH~rmining the yalldlty of his decision 10 willve Ihe Fiflh Amendment prl\llle8~. The Supreme Court held Ihat a suspect's awareness of all the crimes aboul which he may be questiont'CI Is not relevant 10 determining the yalidlty of his decisIon to waive Ihe Fifth Amendment wivilege; accordingly, Ihe ATF agents' failure 10 Inform Spring of Ihe subjl.'Ct mMter of Ihe interrogation could not affect his decision to waive the privll(!g(! in a cOnstitulionilll)' significant mann(!r, ''The Miranda warning tells il suspect thaI 'al')'thll'g' hI'! says mily be used against him . . . thai is warning enough and pollee offlcers need not tell a suSpecl ex;lctly what they Intend to question him about ...."

Mir.1nda- invocation of right to counsel ConnecticUI Y. Barrell, 55 LW 4151 (January 27, 19871-May police question a suspect after he s~ys h~ will milke an oral statement, bUI will not make a wril· ten statement withou t a lawWr? The Supreme Court, divided seven to 1\0\10, said Y"'. Barrell was arrested and charged with sexual assaul t. While i n custody, he WilS ,lI;lvised Ihree times of his Miranda righ ts,

On each occasion, after signi ng and dating an acknowledgment tha t he had been given Ihose righls, Barren indicated to the police he would not make a writ· len stiltemenl, but he wa $ willing 10 fillk aboutlhe incidenl leading to his arres\. On the second and third occasions, he ildded that he \o\IOuld not make a wrlnen statem ent outside the presence of counsel; thereafter, he Ihen orally admitted hi s ilM)lvcmcnt in the sexual assault. Chief Just lc~ ~hl'lqu lsl dell\lC!red the opinion of the court and held Ihat Ihe Constitution did not requ ire Supp(esslon of Barrell's Incrlmlnallng statement. The court reasoned that the defendant's statementS to Ihe poli c~ milde clear his will ingness to talk about the sexual assilult, and Ihere being nO evidence Ihat he wa s "Ihfl!atened, tricked or cajoled" Into speaking to the iX'lIce, the trial court properly fou nd his decision 10 do so constituted a YOluntary waiver of his right to counsel. Specificillly, the defendant's invocation of hi s right to counsel was limited in the opiniOn of the Supreme Court by its terms to the maki ng of written statements and did not prohIbit all further discussion wi th th e police. However, the Supreme Coun noted that "request fo r counsel mIlS! be given bro;ld, illl·inciusive effL.>(:1 only when the defend3Jl!'s words, understood as ordinary people would understand them, are ambiguous:' •

NOTICE Effective M arch 16, 1987, the United States Court of Appeal s for the Eleventh Ci rcuit has returned to its permanent headquarters at the United States Court of Appea ls Buildin g, 56 Forsyth Street, N ,W " Atl anta, Georgia 30303, Offices affected by thi s move include resident ci rcuit judges james C. Hill, Thomas A, Clark and j, L, Edmond son; senior ci rcuit judges Elbert p, Tuttl e and Albert j , Henderson; and the offices of th e circuit executive, clerk of court, staff attorneys

and circuit li bra ry. Pl ease make a note of the new address and ma il ing z ip code.

Th£> Alabilmil L~wyer

lSI

ele opportunities YOUNG LAWYERS' ANNUAL

SEM INAR ON TH E GULF S,mdestin, Oestin Alabama Bar Institu te for ClE (205) 348-6230

19 tuesday tuesday

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31-5

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(2 15) 243-1&00

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NEGLIGENCE CASE The Parkvicw I-Io:el , l'larlford As~odal ion of Trial Lawyers of Ameri ca Cred its: 12.9 COSI: $240 1·600·424·2725

152

thursday

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SOUTHEASTERN TRIAL INSTITUTE SherOlton, Dothan Atabilma Bar Institute for ClE Cred its: 6.0 C0 51: S85 (video replay) (205) 348·6230

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Hy.1II Regency, Chicago AmeriC;iln Bar Association Credits: 14.1 Cost: 5400 (312) 986-5000 May 1987

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15-16 11-12 CONSTRUCTION CONTRACTS AND LITIGATION HolldllY Inn Union Squilrt:, $.ln Francisco Practising law InSliMe Credits: 13.2 Cost: $425 (2 12) 765-5700 MEOICAL MALPRACTICE & RI SK MANAGEMENT Mark l'lopkins fo,otel, $.,n Frilndsco Mcdl.Legal Institute Credits: 13.5 Cost: $425 (8 18) 995-7189 REAL ESTATE INVESfMENT VEHICLES St. Moritz on the Park, New York Practisi ng Law In~lIlU1e Credits: 13.8 COSt: $450 (212) 765·5700

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18 thursday SOUTHEASTERN TR IAL INSTITUTE Holiday Inn, Decatur Alal><:ima 8M Institute for ClE Cred its: 6.0 COSt: $85 (video replay) (205) 348·6230 DISPUTE RESOLUTION L'lW Cenler, Tuscaloo$.1 Alabama Bar hlstltute (Or (If Credits: 4.6 (satellite) (205) 348·6230

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The Alabama Lllwyer

153

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22-26 POST·MORTEM PLA\,NING & ESTATE ADMINISTRATION Wisconsin Law School, Madison American I..1w InstilUle-American Bllr

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UNA Media Center, Fl orence Alabamil Bar InslhuUl for CLf

Credits: 6.0 Cost: $65 (video rcpt:!)') (205) 348·6230

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Credits: 6.9 Cost: $250 (J12) 966-5000 FORECLOSURE AND REPOSSESSIO N

Days Inn, Mobile

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19-21

PractlslnR Law Institute Credi ts: 13.2 COSI: $425

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16-18

25-26 Golden Tulip Bilrbizon, New York Practising Law Institute

Credits: 12.6 (212) 765·5700

Cost: $425

PATE NT LAW INSTITUTE (214) 690-2377

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7.2

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LilW Cenler, TUKalooS<1 Univt:l1ity of Alabama School of law

Hilton Inn, Dallas SouthwesTern Legal foundaTion

ANNUAL MEETING Riverview Pltlza, Mobile Alnb"mil Sttlle Bar

ADVANCED WILL DRAFTING TAKING DEPOSITIONS Omni Parker House, Boston American B(lr Association

ANTITRUST INSTITUTE The Stanford Court, San Francisco

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154

May 1987

Attorney Discipline and the Role of the Local Grievance Committee by Alelll W. Jackson

Assistant General Counsel. Alab.vna State Ba,

Attorney discipline is

subject little

understood by most lawyers. Sw-eeping changes In procedures and responsIbIli-

ties OYer the p.lSI decade have made reeducation desir.1ble for those whose knowledge,

bilsed

UI)Qn experience or

study, Is now out of dale, and for newer lawyers who h~ hdd little access 10 the

Inner 'hOrklngs cJ the disciplinary system. Not 100 many years ago Alabamil elected 10 m<We Inco the "disciplinary

mainstream'" ~ deo.eloping a disciplinary Sysl~ more In keeping with practice in other jurisdictions. The results of this ef(ort ~rc n<:w ethics rules, as embodied In Ihe Code of pfOfcsslonal Responsibility of the Alabama StJle 8M, ilnd fH_OW pn> ct!du t;ll rules ilS embodied In InC Rules

of Disdl)lin;uy Enforcement (ARDE). The Code ilnd the AROE were adopted on May 6, 1974, had an effOClive date of October 1, 1974, and \',(!fC based upon m0dels developed by Ihc American Bar Association. All attorney discipline In Alabama Is subje<:t 10 th e jurlsdlctlor\ of the SUllreme Court of Alnbamn and the Disciplinary BQ<lrd o( the Alabama State Bnr, as established and defined by the ARDE. While the system now utilized is nOt OYerly complex, It Gin be confusing to the uninitiated. Unfortunately, many lawyers first become Involved with the system by ha.... Ing to respond loa grh;'Vo)nce inquiry, and others by serving on a local bar grievance committee, mony without a working knowledge of the Code and the ARCE. Approximately 900 grievances \'Jere filed

The Alabama Lawyer

ag.llnst Aillbamil l~rs last year, A substamlal percentage of Ihese were investigated, at least initially, by local grievance committee-s as authorized by Rule 8(b) of the ARDE. Thus, on sheer numbers '.llone, the local grievance commitlL'C system is a very Import"nt and Integral part of the overall disciplinary process. The ARDE provide that a cln:ult, county or city bar association may form iI griev.mce committee. subject to appro...al by the Alabama State Bar or Its board of commissioners, and Ih.11 any such committcc ShAll have the power and authority 10 Investigate any allcgL>d professional misconduct o( a member of the st.lte bar, whether charges or a complain t are made or referred to the local grievance committee. Rule 8(bK2) goes on to grant to Ihe office of Ihe general counsel parallel authority 10 investigate and/or prosecute charges, stating specifically thill the failure of any local grievance committee to take or /eCommcnd aCtion against an attorney shall not aCI as a bar to the prosecution of charges by the general counsel of the Alabama State Bar. A properly formed local grievance committee has the authority to investigate allegations of profcsslonal misconduct a8-1ln5t any member of the Alabama State Bar, oot just members of Ihe local association. MOSI often this "Iong... rm" jurisdiction applies to acts Of omissions 17)' a nonmember attorney Ihat occur in the City, county or cln:ult where the grievance committee si ts. The rule quite specifically states thel neiTher Ihc grievance commi ttee nor the gcneral counsel need have charges or a specific complain! In order to conduCI an investigation. There is 00 requ rcment thaI a com-

plaint exist, so, o( course, there Is no requirement that the complaint be In writIng. or Ihal it be notari~ed, Of that it be in the (arm o( a legal pleading. all of which are objections frequently raised by llitorneys In their In Ilia I response to a grit.'Vance. The JUStification (or thi s rule Is that the! InltlallflYCStigatory process is a probabl~ cause type of investi gM;on, with procedural rules adopted pursuant to rules 4(gl and 6(b) of the ARDE providing for the prep.lration and submission of 11 writlen repor1 (Form C-) Report o( Comple!I(!d Investlg.ltion and Recommendation) to the Oisclplinary Commission of the Alabama Sldte Bar (or ~n initial determination as to approllriate action. While 11 local grievance commltCce may bring formal disciplinary charges. any other or lesser recommendations by the local commlttcc arc subjoct to the review nnd/or modiflcation by the Disciplinary Commission. The Disciplinary Commission, which is established by Rule 6 of the rules, acts as a grand jury_ tl5 three members review {'Y(!ry grievance flied in Alabama, whether IhAI grievance is 11"1\.'eS(igated by the office of the general counselor by a local grievance committee and, with the exception of those cases In which a I()(al grievance committee determines that formal charges be filed, the commissiOn has Ihe authority to make an initial delermlnation as 10 the ilPproprlate adion to be taken. The commission has a I,lfge range of opl lotrs available, including ou tri ght dismissal, a letter or private in(ormal admonition, a prlv;lIe reprimand, a publiC censure. suspension and disbarment. The commission generally does not conduct hearings, and does not hear

1S5

= live tcstimony, relyin g rather upon the final reports prepared and submlned by the local grievance committees and/or the general counsel. When a grievance has been investigalt.>d, a final report has been $ubmi" ed to Ihe Disciplinary Commi ssion with a recommendation for the Imposition of some form of discipline, with the commission concurring, then, due process con sideration ~ C{lu se th e ARDE to pr()'lide for hearing procedures, and for the fili ng of formal charges which specify with particulari ty altl$OO acts Or omi ssions by the att orney. All hearings are conducted before panels of th e Di sciplinary SO<"Ird, il S established by Rule 4 of the ARDE and th~ panels have subpoena poy.oer, as do the D isciplinary Commission, the general coun~1 and local grievance commi ttees, all as authorized I,Inder Rule 8. Appeal s from orders by tile Di sciplinary BO.lrds are made directly to Ihe supreme court as proylded by Rule 8(d). Given this backdrop the question then becomes what is the role of a local grievance committee ar'ld how should that commiuee -best approach Its taskr The local grievance committees am a,l Investigative arm of the Disciplinary Com· mission . Their role is to investigate allegallons of misconduct, prepare re. l>orlS regardin g those investi gations and submit th ose reports to the commission. The local grievan ce committees have the right to bring formal disciplinary c harg~ against an accused attomey and have the righ t, in cooperation with the general co un ~el , to prosecute 10 decision those chaf'l¢5. BUllaeal grievance committees do r'I ot have final s<1y as to whether discipline is to be iml>osed in a I)articular mailer. Their l'C(ommendations ale considered, but the final determination lies either with the Di;cil)lInary Commission, il panel of the Di.cipllnary BOilrd or the supreme court. Some local grievance committees use a panel system, whereby attorney5, compla inants and other w itnesses are summOIl ed before a p.1nel of lawyerS serving on the committee and statements are tilken. While a res pondent has the righ t

1S6

to 00 rvprescntcd by counsel, these iXlnel " hearings" are not advcrsarial in nature, and cross-exami nation of whnes~es generally Is not appropriate. Some local grievJnce committ ees assign 311lndlvlduill investigMor to a case, who in turn will intervit.>w all orthe parties and submit a report 10 a panel or a Cl)mmltt~ of the grievance committee, which In turn will formulate a report fOr the DiSciplinary Commission. Illvestlg~tors (or local grievance commit tees may compel by sub-poena the attendance of witnesses and the production of documents. Subpoenas $0 issued may be enforced In the circuit court. D iscovery oth{!r.vise generally is governed by the Alabama Rules of Civil Procedure. All di sciplinary Investigations are conndentlal pursuant to Rule 22, and aU p~ coodings remilin confidential until (Ind unless the accused attorney waives con· fiden tiality or th ere is a decision for the Imposition of public di scipline, (public censure, suspension, disbarment), or transfer to disability Inactive sta tus boy- the Disciplinary Commission or a panel of the Disciplinilry Boa rd . All diSciplinary investigation s are to be conducted In ~ u ch a way as to preserve the confidentiality of the proceeding. Complainants are not considered parties to a disciplinary matter and, therefore, are cloaked boythe confidentiality rules. Unless an attorney receives public d iscipline, com· plainants are advised that the miltter has been dl ~ mi ssCtl , or dismissed after "appropriate action has ~ n taken:' but nO specifi c fa ctual findi ngs generally arc pr()'lided. As might be surmised, local grievance committees ilre Clccountilble to the D i$ciplinilry Commission, and should an Investigation fail to Ix! timely concluded, th~ commlsslor'l may request thar the Investigation be taken CNer by the general counsel. Such occurrences are rare, but ha\lt1 OOi!n known to happen. During the course of Its Investigation, locitl grievance commlttcc's primary responsibility is to determine whether the conduct of the lawyef in question has fallcr'l so filr oolow the st<"Indilrds mandat.

cd by the Code as to indicate the necessity for the impoSition 01 discipline and provide to th e Disciplin<lry Commission the factual basis for those fi ndings. The Code contains nine "Canon~:' and each canon contains " Ethical Considerations:' which are aspi ra tional in nature, and "Di sciplinary Rules:' which ilre milnd3tOry in nature. An illlorney mily not be disciplined fOr viola tion of th e ethical considera tions contained In the Code. An a\tomey may be disciplined for acts or omissions which violate the Code of Professional ~sponslbilil Y or the attorney's oath of offi ce, whether the act or omission occurred In the courSe of an attorney-clit!'nt relatio nship. Rule 2 of the "RDE speclfi. cally provides that conduct outside of the course of an allorncy<lient rela tionship may constitute grounds for the imposi. tion of discipline. Thu s, the duty !hilt iln illtorney hilSto comply with the Code extend ~ beyond his clien ts and beyond th e CourtS, although there is no clearly CUi au thority as to exactly how far that duty extends and whatlhe Jurlsdlcrionaillmits

''''.Local grievance committees Clle granted immunity by Rule 9, ilS are attornl!'f$ wh o, actins in compliance with DR 1-103, disclose Information regarding alleged unethical activities by an at· torney. Cleri cal, procedural and legal channels of communication exist between the V{lrious loc.11 committees (Ind olnC!! of the general counsel. The office of th e general counsel Is loca ted in the bar's Cenler for Professional Responslbll. Ity In Montgomery, and disciplinary records are molntalned there for th e Disciplinilry Commission and Oisciplin. ary 60ilrds. Local grievance committees have an important and often misund(!rStood role In the disciplinary process. Investigators (or the local committees provide an In· valuoble service to the Alabama State Bar, and it is through the efforts of all of these volunteers that complaints can be thoroughly investiga ted, Justice can be served and the bar can con tinue Its policy of effective self-regulation. The system • woul d not work wi thout them .

May 1987

Disciplinary Report Disbarment • On February 18, 1987, Dan C. Alexander, an i111Qrney of the Slate of Alabama, was dlsbarrod by consent by an order of the SuprerYlC Court of Alabarlli), The e((e<:tivc date of his disbarment Is 12:01 a.m. January 22, 1987.

PubliC Censures • Tilliadega County lawyer lames J. Clinlon was publicly Cf,mSuu..>d on ~bruary 6, 1967, (or having been guilty of misrepresentation and conduct adversely reflecting on his fitness 10 practice law, and willful neglect of a legal matter. Cll nlon accepted a retainer to !r,ltiate COurt ael;Qn on benltlf of clients, but fai led to Initiate the court <lcl ion, fal sely repreSf.!nted to the clients that he had Inl! latcd ccurt action on their behalf and (ailed 10 refund the retainer until the clien ts had obtilined a coun judgment against him (or the amount of the retainer. IASB NO. B3-400] • Birmingh~m lawyer Charles Eugene Caldwell wa s pub licly CerlSured for willful misconduct and conduct adversely reflecting on r.l s flmess to prilcti ce law, in violati on of tr.e Code of Professional Responsibility of the Alabama Slate Bar. Ca ldwell plead(!d guilty to assaul ting SCVCrl different !>Coons, interfering In tr.e prosecution efforts of otle of the victims by th reat or intimidation "nd failing to obey the lawful order of a police officer. [AS8 No. 85-183] • On February 6, 1987, M obite attorney A. Holmes Whiddotl wa s publicly censured by the presiden t of the Ala· bama State Bar before th e board of commi ssioners for viola· tiOtl of Dlsci plintlry Rule 1-102(A)(G}. It was determined that officers of the Mobile Police Dep.1rtmcnt hild discussed the referral of an accident case with Whiddon and he had failed to adVise those officers that referral of a case might constitute a violation of the Code of Professio nal Responsibility. The Ois(;iplinary CommiS5ion determined that his conduct adversely reflected on his fitness to practice law. IAS8 No. 83·

4601 • On February 6. 1987. 6irmingh(lm attorney Robert Lowell Au stin recei ved a public cen sure for viol,lIion of Disciplinary Rul es 6·101(A), i'-I01(A}(l) and 9-102(8)(4) of the Code of Professional Responsibility. Au stin aCCepted employ. ment in a domestic relations molller and over a period of 5eVe1{l1 months fai led to Ole pleadings reflecting a selliement of the mailer effectuated by the parlies. In addition, hc (ailed to prorrlptly Pily tl) the clerk of the court the court costs paid to him by the parties. [ASB No. 86-246[ Private Reprimands • O n February 6, 1987, a lawyer was privately rtmrimand· ed for having viola ted DR 4-101(8)(1) and DR 5--105{B), by hav.

Tile! Alabam(l l.ilwycr

ing communicated secret or conOdentlallnformatlon concernIng One corporiite client who was eng.lged in mortgage-related activitcs to another corporate client who wa s also engaged III mortg,lge-related activities, after a conflict of interest had d~lopcd between th~ t'M) clients. [ASS No. 85-4 18[ • On February 6, 198i', an Alabama lawyer received a priva te rcprim<1nd (or violotion of Disciplinary Rule 6-I01(A). The Disciplinary Commission determined that the attorney willfully neglected (I legal matter entrusted to him by (ailing to close out a Simple eState in a period of two and a h~lfyears. The Disciplinary Commission further found that there wa s no reasonable excuse for tht! law~r'$ fail\,lre to (let promptly and close the estate. [AS8 No. 85-569] • On Febn,Jary 6, 1987.

a lowyer W.lS privately reprimand-

L>d for having engaged in conduct prejudicia l to th ~ adminlstra· tlon o( justice and that adver;ely renectcd on his fi :ness to practi ce law. Thf! lawyer, in the representation of a client. took ac· tion on behal f of the client when the lawyer knew or whcn It was obvious that such action would serve merely to harass or maliciously Injure another. The Iilwyer prcparOO a deed for a client and acknow!<.'(!gl'(!the client's signature on that deed, by which deed the client ("OnVL>y(.>d certain real property to hi s new wife, despite the lawyer's knowlooge that the client Wil5 requi red, under a IIJlld diloUrce dccf'l'<.', to b<!queath the property in ques tion, In tru st, for the usc arId benefi t of his former wife (lnd his children by his former wife. [ASB No. 85-575J • On February 6, 1987, an AI(lb(lm(l il"orney- received a priva te rel)rimanci for violation of Disciplinary Rules 1}.102(A)(2) and 9·102(8)(1), Tht! DISCiplinary Commission determined that the attorney received (rom the regi ster o( a cl rt;uit ("Qurt in thi s stil te a cash settlement check payJble to the att orney and his dient and that, wi thout the cliell t's kllow lcdgc or con sent, thl! attorney endorsed the check for the client, placed the check In hi ~ tru st account ilnd paid himself a large legal fee. The Disciplinary Comm j ~sion determined that the anomey (ailed to prOmptly notify his client of the receipt of (unds received from the court and, furthermore, that the attorney withdrew from his tru st account funds belonging in part to a clien t ,ltId in part presently Or potentially to the lawyer, wilh the owner. ship thereof being III dispute. The Commission detl!rmined the attorney should receive a priva te reprimand for th ese lIiolation s. [AS6 No. 86· 4381 Reinslatemenl • Charles Jackson Fleming Wil S reinstated by I~nel IV or the Disciplinary 80ard of the Alabama State Bar, dfl;!(tive January 9, 1987.

157

Committees 1986·87 committees report progress R t!!1lly, Pu;!sidl;!nt Scruggs asked commln~ and '<lsk force chairmen for midyear reports, to be used bv thc Com-

miltce on Programs and Priorities and the bar's elected Ie.lders In plannlnglhe 1987-88 bM year. Highlights of some of 1110se Me reported here. Editor RobCfl A. I tuff,lker reporTS The A/.,oorna Lawyer remains on SQ\md fl.

1l00nd,,1 footing with advertising fC\lenUe and the qUilrterly S!.1te bar stipend being

sufficien t to cove' expenses of publication. ~rving with Huffaker Me 16 other volunteer lawyers from Mound the Slate.

Professiona l responsibility classes at Cumburlilnd and Ihc U n l~rsi ty of Ala·

bama Schoob of law have hcen Yisited

by Llwyer Alcohol and Drug Abuse Commillee chairman Walter J. Price, who reporu he WoIS uple.u.mtly surprised by Ihe imeresl ~nd seriousness with which the studen ts responded" to hb till k. Commiuee members have joined thl' Alabama Alliance of Concerned Profe~sionills, a group represen ting sever<ll prok»sions and their commitK'CS on al. cohol <lnd other subSl.lnce abuse. A legislative cuticle has been l)repJred by the Task Force to Consider Proposed Revi sions of Ihc Alabama Constitution of 1901, Chilrles D. Cole, chairman, and Is to be presen ted to the board of bar commissioners this summer. Nlditional arlicles on finance and lax.1tioll a!'ld the executiw branch of slate g()'.Ernment are being dlM!loped. Almost three years In the works, the Future of the Profession CommlttW$

1S8

study of the dCIllOgfJllhlc and ecollOmlc 51<ltus of Alabillllil lawyers Is reported elst.'Where In IhiS Issul!. Chaired Initially by Dr. Richard A. ThilJlCll, then by lames B. Kicrte and nq.y by John A. Owens, tnc commi ttee plans to l'V.lluate the reporl and make rt.>commcllOalion s to the board b.lscd on II. Bar members wishing to make suggestions to the committL'(l may ilddress them to Mary lyn Pike, staff liai· )On to the committee, AlidJ..1mi"l Smc Bar, P.O. Box 671, Montgomery, Alilbama,

36101. Also published elsewhere in this Issue arc rules governing election of the presl· dent-clcct Jnd commissioners, ildopted by the bO..l,d December S, 1966. The product of three years' effort by the Committee on C~nance of the Alabnma Siale BOlt and the board, the rul es implement challgcs In Alabamil st,:u ules 0 11 thc Organlliltion and authonty of Ihe stOlte bOIr. See SectloM 34-3-16 ilnd 34·3·40 throllgh 43, Codf! of Ala/wnw (1975). Siml)ly put, the ch;\ngCli proYide for election of the presldent-ciect by mall ballot, r.lther than by a wle of members regi sttlred for the ilnn...... 1 meeting. and expand repr(.'5entalion on the board of bar commbsioners for circuits having 300 or nlore members. In October 1986, the CommiUee on Meeting Criticism 01 Ihe Bench and Courts, under the leadership of R. Kent Henslee, proposed to the bo..lrd a policy for handling such criticism ilnd it was adol)ted. ~Iopcd in consultation with judgt'S M all levcls of the state's judiciary, the policy is tha t the executive commi ttcc of the bolnd and til e commissioner

from the Involved circuit will develop a response (I) when the crhiclsm is dlrooed toward the Judicial syStem or the rule of IJW that gavetnS the syStenl and (2) when a response pro.oldes tnc oppor· tunity to cducJte the public about an important aspect of the administration of justice and the judicial 5Y51em. The presi. dent of tile bar will nmke the response after consultation with those previously menlioned. No response will be made when the criticism Is esscntiJlly political In natu~, when il is of such a local nature as to haw little or no impJct on the stOlte judici,,1 system or whenlhc commi ttee beIIL>VCS there Is no compl.1i ling reason to make a response.

1987-88 volunteers sought A commiul..'C I~erence questionnaire ,lJ)PCJrs on the next P.1S£!. Presldenl-cl(>(t Ben H. Harris, Jr., ~ks volunteers will Ing to comml tt lmt! and resources to the \.\IOrk of these and other conlmlttees all(! t.uk forces of our bar. If )<lU are Willing to serve, Illease complete the question· naire and mail il to him in CJte or the A I~ bama Stille liar. The 1987·88 COIll 'llIIK'f:Swill conduct their first meeting of th e new bM ~ar during the annu<ll "klck-o(f' brcllkfilSt l0 IX' held duringlhe b..lr'S meeting in Mobile, luly 16-18. AU mcm l)(!IS whoSl! tcuns do not expire in 1987 should mark their c.llendars now for Saturdi.IY morn· Ing, luly 18 at tht! RivtrvlL'W PI373 in Mobile. •

May 19B7

ALABAMA STATE BAR 1967-66 COMMITTEE PREFERENCE QUESTIONNAIRE Dear Fellow lawyerS: Committees ilnd 1ask fa/ells ~ffl Ihl! backbone of our assocl,uloll, developing projects and addressing prOOlenlS for boIh Ihe public and the membership, Voiunll'(!fing lor them means a commitment of lime and may require travel, but the rewards are many. 'f you arc willing 10 JeNe, please use the SPKI! below 10 Inform lhe .t~te b;1r 01 your pIl!ferred asslgnmenu. Because the bar year begins on July 18, 1987. we will rlt.'i!d to hear from you no later thlln JUlie I.

With your help, the AIllbama 5"lle Bar will have aoolhcr p!'odu(live year.

Sincerely yOurS.

a~L~o Prtsidt nl -elc<t

PUBLIC SERVICE Task FOfce on Ahematlv/! Me1MCh of DisPU11l Rl..nlulion 181 Cummhma <;In CQrn.'<llonal Insrl!utlon s and f'roctdu!I:f In Task Poree on Oll/en,hlp (d\JC~'lon (31 Task Force 10 Consider Revllion, 0( lho Cornt,tution of 1901 (J) Commlut'O on a Ctlt'fll Sec:uriry fund !I ) CQommilk!e gn Ace.m 10 Lt'S'Il ~Ice (5) CQommlllt!e on Indi~t Orf~ 14, I.a~r Rt'll!I'r.1 ~rvlce Boa.d 01 T'US1_ In UW O~y Comm uee (6) Committee on Prep.1l(ilt'S'll Sc:rv lcC!'S III

BAR SERVICES, MANACEMENT AND INTEREST CROUPS Military law Committee IS) Federal Tnx Clinic 1"1

BENCH AND liAR TII, I( FQfcC to Con~ldcr f'osl lble RrestluclUrl"1l Appetl~le

T.~ f~e

Ch •• OICIl!r and Fit".." Commlttet 131 Ethla Educ;ulon COmmittllt! (5) Cu",",I!t~ on the FU1UIl! of the l'ror~slon (S) f'rlrmanent CommlMlon on the Code o( Professional RtSlJOl'lJlbU/fy (") CQommlnee 01'1 Pl'oIesstONol ECOI'IOOIia (" ) Committee on Lawvtl' Public RelatloM, Inlonn.:orion & Medii ReI.llon~ (61

01 Alab.om4"

COUIt) III on !hi! f'r~ )udiclill BulldinH Il)

FOCUS ON THE PROfESSION CommIttee On L.wy1!1 Mvr:ni~l nK and Solldlirlon (81 Conlmlttl!e on Li wyt!! Alcohol aod 0'U8 "'Iw~

8o.,rd of E(litors, Tilt> AI~bi",.i (.~ 11) 1he AI~b.lmiI I..:Iwye, 8;1, DI~rOfY Commln~ III FINOCI! Commil1te il) In~~. Progr.itm CQommlnee (6) Lt8lllall~ l iill!O" CQomml n~ ''') LOOII B., Activilio:f, ... ~res Commll1l!t! (5)

'''I

PLEASE RETURN IIV JUNE 1, 1987

N.lIl1C: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ __ _ _ __

~tlency

e"m~":::oy:.:'~.===================================

Office mailins addren:_ firm , Of Dlker

City:

Slale: Officc loiephooe nuntbcr: _ _ _ _ _ _ _ _ _ _ _ _ __ _ _ __ Yes, I would like to

serve. My

Zip Code:

Year of admission 10 bar: _ _ _ __ _ _ __

preferencc!! Me:

1. ------ ------- - - - - - - - -- - ---),--------- --------- -----------2. _ _ _ _ _ __

_ _ _ _ _ _ __ __ _ _ _ __

_ __ __

I am currenlly ~ member of the followlns slate bar comml,,~ Of I~)k force:

Commenl s or sulltleSllons:

MAIL TO: Ben H, Harris, Jr" Presidenf.ele(t Alabama Slate 8ar P.O. 110.11 671 Montgomery, AL 36101

The A/aooma Lawycr

159

A Survey of Alabama Lawyers: 1986 by Samuel H. Fishe r, III Researc:h Associate

'amet C. 510\10111 Co-Director

Patrick R. Cotler Co-Director Capstone Poll University of Alab.lma March 1987

The Capstone Poll is an Independent SUM!y organization jointly sponsored by the Institute (or Social Science Research and the School of Communication i'I1 Ihe

University of

AI~bama.

The authors of Ihls report lire Dr. Piltrick Cotler, usoclate professor of political science and co-direclor of Ihe

Capstone Poll; Dr. JamC$ SI(NaIl, codirector of the Capstone Poll and d irector of the Communication Research and SeNfce Center; and Samuel H. Fisher; III,

research associate for the Capstone Poll. Copies of Ihe fu ll report are aV.lllable from th e Alabama State Bilr, P.O. Box 671, Montgomery, Al 36101.

INTRODUCTION The results of a survey of auorneys In Alabama are presented In this report. In Ihe study. data collected concerned the roclo-demogrilphlc characteristics of law~rs In Alabama, Information about the admlnlstrJtlon and economics of prl. vate law praclices In Alabama, opinions of I~rs concerning a number of Issues related to the legal profession and aui· tudes concerning several topics related to the perform(lnce of the Alabama State Bar. The suf'\o1.'y was sponsored bv the Ala· bama State Bar and conducted bv the University 01 AlaOama's Capstone Poll. The questionnillre used In the suMly was designed bv the Capstone Poll from II list of suggested questions selected by the bar's Committee on the Fulure of the Profession and provided bv the American ailr Association.

160

In the survey; telephone interviews were completed with a random sample of 407 lawyers selected from the In·state membership of the Alabama State Bar. Prior to the study, tne state bar mailed a letter to I~rs selected to participate, explaining its purpose and asking them to participate. Next, Capstone Poll Inter· viewers telephoned each Individual In the sample In order to arrange a time to conduct the Interview. Finally, a Capstone Poillntervl€.Wef called the respond. ents and conducted a 20- to 3O-minuto Interview. The interviews were completed between June 19 and August 1, 19B6. Only four Indlviduills In the sample rcfust'd 10 participate In the !ludy. Many of the reported statistics In the text are the median average which means that half of the reSJXlnscs are "higher" and half are "I~r;" The median average is used since the figlXe is not distorted by extremely high or eKtremely law val· ues. All probability samples conlain some sampling error-the e,.;tent 10 which respondents' views differ from the views held ~ the entire population from which the Silmp1e wtlS selected. Sampling error (an be expressed in lerms of the relativ(! COnfidence one can h~ In a sample ~ul l. For thl! current Capstone Poll su~, one can be 9S percent con· fident a result Is not more than S percent different from that of the entire popula. tion from which the sample was select· (!d. Sampling error does not reflect other sources of error fou nd in surveys.

Figure 1 Race of Alabama lawyers

. . I. .. ,

""'"

Iho attorneys live In ci ties with popula. tions of more than 50,000. The highest concentration of lawyers Is found in Jeff. erson County where about four out of ten attorneys in Alabama ~ide (Figure 3). Substantial numbers of lawyers are also found in Montgomery (11 percenO. M0bile (10 perccnt), Tusc.alooSil (S percent) and Madison (4 percent) counties. The median age of attorneys in Ala· bama Is 38. Aboul three-fifths of the responden ts are 40 years old Or younger, while 9 percent are more than 60 years old (Figure 4). Agu", 2 Sex of Alobama Lawyors

I. SOCIO·DEMOGRAPHIC CHAR· ACTERISTICS OF ALABAMA LAWYERS Lawyers In Alabama are: overwhelm· Ingly white and male. As seen in FlguJ't'5 I and 2 only 11 percent of thc state's at· torneys are female and only I percent are black. Four out of five l(lW';ers are mar· ried. Among those muried, the median number of chi ldren is~; almost onethird (30 percent) have no children. Most Alabama lawyers IiIlC n the state's larger cities. In particular, about 60 percent of

- .-

.....

...

_. May 19B7

Flguro 3

Figura 6 Income of Alabama lawyers

County in Which Law Ofllce is locatad COUNTY

Jefforson

.....

-......

~~-

..,.

Tutcaloosa

.~-

POfCMt

1'.1'''' 1' ....11...,.

Ncarly one-third of Ihe slate's aUorneys

Figure 4 Age 01 Attomoys In Alabama

1,00.'2OIIJ1Q11

hove been adminoo to the bar since 1981 (figure 5) and al\ additional ooe-third (37 percent) were admined during the 19705,

---

thus almost 10 percent of thc lawyers in Alabama \.Vere admined within the ItlSt 15 years (1971-1986), Among those who estimated their annlJlll Income aftCr business CKpenses about one-MIll say thl!)' make less than $30,000 per year (figure 6). About onethird (29 percent) earn more than $70,000 per year. The median annual income of those rl.>spondln8 is about $55,000. About one-hall (48 percent) of these Individuals say all their 1985 in. come came (rom Iaw-relatl.>d work.

MOSt Alabilmill<lW','el'S (72 percent) are in i>rlvate prnClice (Figure 1). Substantial· Iy fCVv'Cf womer] arc in private pr,lctice thM men: three-fourths of Ihe male respondents say they arc in private practice, while only one-half 0( the females are in private prnctice, About 12 pertent of the lawyers In Alab.1ma worle for Ihe judlci af'y or SeNemmenl and .. boul 9 pcrtent work for corporJtlons or businesses. Of those

•

When Alabama Attorneys were Admitted to Iho Bar

Figure 5

Figure 7 Principal Positions of Alabama lawyers 1981 10 present 37

1971 to 1980 1961

---

---.

to 1970

Bolo'O 1960

Pen:clnt

The A/.lbama Lawyer

---

,.,

working for the g<M!rnmenl or the Judiciary, 23 percent work at the federal I~I and 69 pertent are at the state '~1. Appro)(imately one-tenth of the allorneys are employed In a business or corporation. Aboot 2 percent ol law~rs In the sample are retired and I percent are unemployed. Abou t 1 percent work for 1a'N schools and another I percent 'NOrk for non-profit organizations. law~rs in pdv.l1e practice have a higher annual Income than those employed elsewhere. The median Income of those in prlvilte practice Is tabout $55,000. Among other employed anor路 n<...,.s, the mod an Income is about $45,000. The informa tion coll(!clLod concerning the soclo-demogrilph lc characteristics of lawyers suggests a I>refl le of a typical Alabilma altome,-. He is White, marrlt.>d and h..s two children . He is in his UPI>cr 30s and was ...dmltted to the bar in the late 19705. The typical ilUOnley has a private practice in one ci the stilte'S larger metropolitan areas. About 90 percent of his $50,000 Income comes from Icgal work.

II. ADMINISTRATION AND ECONOM ICS OF PRIVATE PRACTICE Area of practicl: Privatc pmctice attorneys In the sample ~re ilsked a number of questions designed to obtain Information about their activities and the administration and economics of the firms (or which they v.Qrk. First, jlfivate practice altorneys ....-ere ilskt>d to sPt'(ify the area of law that represcnts the bulk of their pl'<lctlce (Figure 8). Civil IItigo1lion Is the most frequentl y mentioned arC,l of practice; Olbout 24 I>crcent say this Is their major activity. The second most (rC(luently mentioned area ii re.ll estate (12 percCflIj, follO'M..>d by "general personal maners not otherwise covered" (10 percent). ApproxImately 8 percent are Irwolvcd primarily In "commerclall:MI and con tracts for corporate transactions," another 8 percent work mainly with criminal defense and 8 percent report working In "family law, divor<:~, ildoPliOr'ls, menial health and juV(!niles.." The balance of respondents are scaUcr<.'d In /I wide variety of areas.

162

Figure 8 Major Area 01 Practice Ctvl Uigation

Other 40,0%

Real Estato

FwnlylaW

:;;;~:E~~ ' .00%

commerclall.8W

CrIminal OOfense

'MJrk activities About 72 percent of the lawyers in private practice v.Qrk more than 40 hours a week; most of these work 41 to 60 hours per week. About 13 percent of pd. Vilte pr<lctiOO attomC'1S report clvlllltlgation occupies 100 percent of their time. About a quarter say civil Iitig.llion takes up frem 51 to 99 pt!rcCl1I of their work tim<!. Flfty-four perceflt spent 1 to 50 per_ cent of their work time on litigation while about 6 percent spent no time on civil litigation. About 31 percenl of the priVilte prac路 tice anorneys say they have "more v.Qrk than they can handle." About 60 percent report having "about the righ t amount" of work while 7 ~rcen t feci und拢.lrempJoyt..>d . About 27 percent of lawy..::rs in pri vate practice say their firm has morc work than It can handle. About 6 percent sily their firm does not have enough 'NOrk and 64 pertcnt bellC\'C their organization has about the right amount ol work to do.

Composition of private practice firms The results of the survey show p!'lvate practice 13'N firms in Alabama range from \'Cry small opCTdtiOns tQ I,uge organizations with a variety of positions.

Abou t 43 percent of the private prac路 tlcc aUorneys have worked for their current organization for ten years or more. About the same number (47 percent) have been with their present organization for fI\'C years Or less. When asked about lhe (lumber of solo practitioners or proprietors In their organlzillion, about 60 percef'lt 01 the private practice lawyers say there are none, while 25 pcrcent report one ~Io practITioner or proprietor. When asked how many par1ners or shareholders are In their organil(iltion, 30 percent repor1oo none. About 24 pertetlt say their org.1nizatlon has sl)( or more sha reholders or panners. The median number of Shareholders or par1ners Is IWO. 511ghtly more than half (53 pertent) say their organization has no associates. sw. C!f1Wefl percent say that their organization has one person who Is an associate, while 19 percent repon their organlza. tlon has fiYC or more associates. The median number of assoclat6 in 3 firm is one. Three-quar1ers of the respondents repOr1 having no lawyers ci counsel in their organization. When asked about paralegals and law clcrks In the organll(,u ion, about 62 per-

Ma y 198 7

cel'll report their (jrm has no paralegals and 70 percent say their firm has no law clerks. Abou t 70 pCfcen t of Ihe auomeys S.1y thclr organi1;~tion hilS no non.lawyer admlnlslrluor'S. Twerlty percen t h~ one non.lawyer administrator. A higher number of altorneys say their organization has an accountant and bookkeeper; however, ilooul half 152 percent) of the prlv;l1c practice atlOrnL'VS say Ihcir organIzation does not have an accountant or bookkeeper. An overwhelming majority (94 per· cen t) of the respondents say their Ofganizatioo has one or more people In secretarial orclelicill position5. About 33 percent say their organization has fi~ or more individuills 'Mlrklng In a secretarial or clerical position. Of those lawyers reponing Ihal their organization uses sccrctilriill or cleri cal help, the medliln number of emp\oyccs is three.

,.,..

When asked "bout Ihe number of messengers many (61 pe-CL'fIt) of the lawyer'S say their organlzallon has none. Similar· Iy, mOSt (88 percent) I>rlvate practice lawyers say th eir firm does not employ {lny Investigators.

PriVJte pr<lctice aUornl."'I1 were asked wha t hourly rate they challle their clients (Figure 9), About one-fourth of these lawyers say thcv chnrge betwccn 571 and $80 an hour. About 19 percent chargc betWl'Cn $61 and $70 an hour, while 18 percent say they charge more than $ 100 an hout. The average hourly charge is

Use of p.1r.,legaI5

$75.

The 38 percenl of priVille j)facllcc al· torneys who repon Thilt Ihelr organb:a· tiol1 employs paralegals ~re asked a ser· k'S of questions about hO'W these indivld· uals are used. Seventy-sill percent of Ihesc respondents use p.ualcgals in litigation. More than half usc 1><1r<llegal$ in commCftlallaw (53 pcrcenO and rcal eslilte (55 perccnt). Use of paralegals in cOq>arnte, probate and est.!!c v.'Ork is reportf.-d by about 50 percen t of the respond(1r\ts.

Amorlg the few priVilte praClice allorneys who charge on a dnily oo sis (16 jX!r· cent) abou t 26 percent say th ey charge clients $500 per day. The nverilgc dally chargc is $560. Private practice allorTlC'j'S say the fl105t Important factor affecting Ihe fees which they charge Is the amount of time spent on il prolect. Abou t 64 percent say the amoun t of time Sperlt has a "very impor· tant" Impact on the amoun t il d ient is chargl.>d. The expericnce of the lawyer

Figure 9 Hourly Rates of Alabama Attorneys

30 25%

19%

18%

20 14%

13%

o $50 or less $51-60

$61-70

$71-80

$81-90

$91-100 $100 plus

163

'NOrking on the pro ject is si,lid to ha~ a very im\X)rtilnt Imp.1ct on the amount charged by 29 percent of the responden ts ilnd an Important effect by 58 percent. Additionally, the client's ability to pay, the results or size of ~ltlement and th~ custom of the community are said to have either a very iml)Ort,mt or irnportar\! impact Oil the amount charged by about thrce-quartc~ of the private prJctice attorneys. About 27 percent of the iawyeflln private practice 5<ly they illwilyli uSE! employ. ment CQntracts with Their client s (Figure 10). An additional 50 percent sometimes use employment eontr.lets. Almost nine In ten (86 percent) of the prlvJte practice attorneys S<IY their org,lnization charges clients for triM!1 expenses, About 80 percent bill cll{mts for long-di stan ce telephone charges. Fewer respondents report charging clien ts for time spent 00 the telephone (68 percent), duplicating and photocopying (5 4 percent), extra l>ost.1ge (40 percent), pilfalegals' lime (30 percent} or secretarial and 'NOrd proce5sing time (24 perce!'!t). Ai)Qu1 56 percem of private practice at· lorm:.ys say they keep time records always or most of thc Ilrtlc (Figure 11). An addl· tional 16 percent say they always keep time re(ords except for con tingent fee cases. When asked about uSirlgllme records for billing about 37 percent say they always u~ time record s, while 29 per· cen t use them most of the lime. Many (60 percentJ of the attorneys in private practice say their org:.miz:ttion bills clients on a monthly basis while a smaller number 00 percent} char'Se quar· 1erly (Figure 12). Nearly 40 percent of private practice lawyers say bet....een 1 ilnd 5 percent of their organiziltioll's fees were uncollected during the laSt ~r. T'M'ln ty-sevcn percer\! say between 6 and 10 percent of their organization's charged fees remain un· collected. About 12 percent of these respondents say more than 20 percent of the fee s charged by their organizaTion have not tx.-en coliecK-'d.

There are iI variety of method s firm s use to collect unpaid fees. About threeqUllrtCfl of the private practice allorneys say their organization attempts to negotiate with the client. A slightly smaller rlumber (65 percent) say their organizil. tion ~nd s dunning letters to delinquent clien ts. Abo(rl 29 percent say their orgilnizations sue to collect unpaid fees. Relatively few report that their organlza· tions use fee arbitration (10 percent) or collection agencies (9 percent) to collect unpaid fees. Overh ead Private practioo ;'lItorncys were asked what percMt of theirorganlzmlon'5 gross Income went to covering oycrhead costs {Figure 13}. Thirty percent of these lawye~ say their firm spends 30 percent or less of its income on ~rhead. About 29 percent say their nrm spends between 31 to 40 percent for overhead, while about the same number (28 percent) say overhead consumes between 41 to 50 percent of their firm's Income.

Equipmen' Private pmctice attorneys were asked if their organization owned, rented or ~ hared different types of office equi~ ment. Substantial numbers of respond· eMs say their organization owns or rents a photocopy machlrlc (90 percent), a YoQrd processor (76 percent), an electron· ic or computerized phone system (74 l>ercent), tclt..'conferencing cap<lbility (73 percent) or a r'n:tgnmic-memory Or memory typt.-'Writer (64 percent). Abou t half the respondents 5ilY th eir organization has a postal¥! meter, while 47 percent say their firm has a computer used for data processing or recordkceping. Computerlted legal r~ea rch Aboul 42 percent of Ihe private practice lawyers say their organization used computerized r~eare h scr'Vlce durin!:! 1985, Of tho se who reporled the u~ of such a ~r'Vi ce, about 64 percent saJd their org.1r"!i:arti on u~ Wcstlaw while 20 ~rcent used Le)(is and 12 percent used Juri s.

Figure 10 Use of Employment Contract

Sometimes Always Rarely

Only If client

wishes Never DKhlA

Percent

164

Ma y 198 7

Figure 11 Maintenance and Use of Time Records Figure 12 Billing Cycles

Maintenance of Time Records Never

D""'A

A------,,, No blUing cycle

Weekly Monthly Ouat1arly

Seml-ennUlI

Annuli 12

Other

DIWA

Most of the time

•

'6%

'8%

Always except In

••

contlngont foo casos

Figure13 Percent of Gross Income as Overhead Costs

Use of Time Records DKINA 3%

NeYer

Always

37% 41 ·50%

28%

31-40%

Most at the TIme

,.%

29%

The .... Iabama LaNYt"

165

Docket/calendar cont rol Very few priv,lle practice lawyer5 (6 percent) say their org.lnlzation uses a computerized system to keep track of the docket and the calendar (Figure 14), These lnwycrs are more likely to say their firm uses an o{(jce-wide central calendar 08 percent) or a double diary system (1 4 percent) 10 keep track of such activities.

Salaries The priv;l1e I)ractice lawyers in this surwy were asked several qUl'SIions concerning Ihe starting and ;wcrage sa laries paid to employees In their organization, As seen in Figure 15, about 20 percent of those responding say the st:lrtlng s..llnry for a paralcs,,' In their org.lni~iltion is

between $14,000 and $15,000. About 21 percent report thc beginning Sillary for a parillcgal is bet.....een 515,000 and $16.000 The avcragc beginning salary for a p.1raIC8,,1 Is 514,000, For a paralegal starting 'N()rk in a larger city (over 50,000 people) the mooian starting salary is 515.000, compared to $12,000 for those i n smaller ci ties or lowns. Aboot 19 percent of Ihe private practice attorneys responding say the average annual salary currently paid bot' their organization to paralegals is more than $19,000. The average annual salary IXlld to paralegals is $16,000. Paraleg<1ls In large ci ties hnvc an average salary of $16,000 compared to 514,000 paid to those in smaller cities or towns.

Figure 14 Type of Docket and/or Calendar Control System

Computerlzad system Single diary system Double diary system Office-wide central calendar File card system Other

DKINA

Percent

May 1987

Figure 15 Starting and Annual Salaries of Paralegals Starting salaries

Mor. than $17,000

$16-$16,999 $15-$15,999 $14-$14,999 $13-$13,999 $12-$12,999 Less than $12,000

Percent

Annual salaries

$19,000 plus $18-$18,999 $17-$17,999 $16-$16,999 $15-$15,999 12

$14-$14,999 3

$13-$13,999 $12-$12,999

lass than $12,000

Percent

The Alabama UJwyer

167

Figu re 16 Starting and Annual Salaries for FulloTlme Legal Secretaries About 25 percent of the priViite priiC路

Starting salaries

lice attorneys 5...", Ihe starling salary for a legal secretary in their organization is between $12,000 and $0,000 (Figure 16). . The ~ragc starting salary paid to a legal

More than $17,000

secretary Is S12.000. The average salary

$16-$16,999

currently paid legal secretuies is $14,000.

For both starting and current secretarial sailHics there W,l$ no difference, on the average. between those In large and small cities.

$15-$15,999 $14 $14,999 0

$13 $13,999 0

$12 $12,999 0

$11 $11,999 0

$1G-$10,999 $10,000 or less

Percent

Annual salartes $19,000 plu. $18-$18,999 $17 $17,999 0

$16-$16,999

)l1li------------17 9

$15-$15,999 $14 $14,999 , . - - - - $13 $13,999 0

$12 $12,999

$11 $11,999 0

$1G-$10,999 $10,000 or less

~==~----.---~----~

Percent

168

MilY 1987

Figure 17 Compensation for Beginning Lawyers

$36,000 plus $31-35,999 $26-30,999 $21-25,999 $20-20,999 $19-19,999 $18-18,999 $17-17,999 $16-16,999 $15-15,999 Below $14,000

13 18 18

Percent Figure 18 Method of Compensation of Alabama Law Firm Associates % 01 firm's gross

Salary plus % of nrm's gross

Other,30k

Salary plUS % ot toos they pentOnally U........

As seen in Figure 17, about 18 percent of the private practice atto'ocvs say their firm would pay iI beginning attorney be!'Neen $20,000 and $21,000 per year. An equal number say the salary for a new lawyer within their organiza tion Is betwcen $18,000 lind $19.000. The a~r"'8e salary for a beginning l(lWycr is $21,000. In larger chiÂŁ!:S the ilYeragc starting S<llary Is about $20,000 while In SlThlller cities il is about $18,000. Private prolctice attorneys also were

Salary piUS the possibility or. yearend bonus

2' %

The A/"bilma lawyer

asked on what basis associates were paid Salary only

66%

in their organization (Figure 18), Salilry only 15 the most (re(lucntly rYlcntlom.>d form of compensation for assoclatC5 (66 percent). Abou t 21 percent say salary with the pos~ibiliry or iI year-end bonus is the method used 17( their firm.

169

fringe be-nefitf Private prilctice attorneys 'NCre asked what type of fringe bencllts are provided to the lawyer and non-Iawyer emplar ees In their organlz'-llions. Regarding benefits for attorneo,'S. most of the private prilctice atlorneys say their organization Pm for professional membership dues t72 perceno and educational courses and programs (76 percenO. Paid wcations (66 percent), paid holidays (65 percenl), expenses (or entertaining clients (62 percenO and paid sick leM (60 percenl) are the next most frequentl y provided benefits. Private practice law firms are less likely to pl'O'Vlde dlsabmty Insurance (29 percent), paid sabbaticals (25 percenl), dental Insurance for the Indlvlduill (15 percent) and dental insurance for a lawyer's family (12 percen!). The four most (requently provided fringe benefits for non-Iaw~rs are paid vacation (72 pcrcent), paid holidays (70 percen!), paid slc~ leM (67 percent) and medical insur-mce (5 1 percent). less than half the respondents say their firm provides medical Insurance for the family, dental Insurance, disability insurance, life Insurance, a pension plan, expenses for education cou!ses and programs for f'IOn-l~rs.

Hiring new lawyers The private practice attorneys also 'NCre asked whether their organization plans 10 hire any new lllW)'Crs within the next five years (figure 19). Abou t a third of these rtlspondt;!nts say their firm plans fO hire no new lawyers In the next five years. About 16 perct!nt say their firm will hire one new laY/yer, while 20 percent will hire t'NO Irw.),:!rs. About 6 percent say their of'8llnizatlon will hire more than len new lawyers in the next five years. Lawyers frorn largcr ci ties reported the median number of associates to be added In the next nve years Is two, while those (rom smaller cities said only one associate would be hired. Private practice attorneys also v.'ero asked how many lawyers had left their firm In the past fivc years without being replaced. Abou t three-quartef'S report no unfilled vacancies.

170

Figure 19 Plans for Additional Lawyers More than ten

FIve

One

Nona

20 Percent

Personal problems There are a number of personal problems thai may arise in a I(IW practice. Prl· vate practice attorneys 'NCre asked j( In the past five years any attorney in their office hdd ex~enced a physical disabil· ity, alcoholism or drug dependency, merltal or ernotlonal disability, death or dlyorce. Olyorce 15 the mosl mentioned of the flY(! problems (32 percent). The development of a physical disability (1l per· cent) and death (1l percent) are the next most meOlioned problems. About 6 per· cent report problems Involving alcohol· Ism or drug dependency.

Malpractice Insurance The final topic relate<1 to private pmelice ~'Xamined in the survw Is malpractice Insurance. About 82 percent of the priVOlte practice allomeys report having malpractice Insurance. About IS l>ercent have no insurance.

III. ISSUES FAC ING THE BAR Continuing Legal Education A1torneys gC!nerall y are satisfied wllh the o.erall quality of continuingleg.11~od· oC.1llon programs In Alabama. Nearly a

third of the attorneys rate e l f programs as excellent, and more than hilif say they are good. Only 13 percent say they are either fair or poor. Alabama lawyers are splil over the qut,>stion of increasing the mandatory e lE credits to Include an ethics edl.H';ation requlremenL Some 42 percent sup. port such a change while 56 percent are opposed. Of those who (;M)f an ethics requirement, 36 percent support a oneor IWO-Credit requiremen t, whl1e 36 per· cent want a three-(rt.'(/it requirement and 25 percent fayor a (our- or mo,*! credit ethics requirement. Adverti sing Most Alilb"ma lawyers-nearly three(ourths-oPI>ose advcrtlslng by attorneys (figure 20). Only 11 percent favor It. About 13 percent v.'Ould favor advertiSIng by lawyers If it is policed by the bar. Only 4 percent of the sample report they or their firm has advertised In any manner other Ihan a standard IIstlng In a classified telephone directory. 5pcciali:i:01Uon The question or Implementing a specialization plan has substantial num· bers of supporters and opponenlS among

M ,lY 1987

Figure 20 Attitudes Toward Advertising and Use of Advertising

71%

11%

13% 5%

o Favor

Favor K policed

Oppose

DKINA

Question: Do you favor advertising by lawyers, favor K policed by the bar, or do you oppose advertising by lawyers?

Yes No

94%

DKINA

Question: Have you or your organization done any advertising other than a standard listing In a classified telephone directory?

171

the sample (Figure 21). Slightly mo re than half favor a specializati o n plan, and a third arc oppo!:ed to It. Of thoU! whQ ilrf,l In fayor of It, two-thirds said It should be based on a combln;Hion examina tion and peer review. Only 10 percent said it should be based I)n self-design(llion .

Pro bono servi ces Nearly half the sample (46 percenO say their ~mpl~rs hiM,! il policy thaI encourages them to d/!VOtc time to providing free legal services fo r low income individuals. Abou t 39 percen t sny they hllve no such policy. Am ong those respond. Ing, 72 percent of the lawyers reported spending 50 or fewer hours during the year providing legal services for which no fee Wil S charged. ThiSfigure suggests the typical l aw~r in Alabama spends less thlm o ne hour per \W(!k on pro bono service s.

helpful ilnd wdl-Qf'8an i1.ed . About tWOthi rd s say the Staff is about the righ t size, while 10 percel1l say it is not large f;lnOUHh . Almost half the en ti re sample has visIted o r called the bar office duri ng the pa st year, and an OVI:'!rwhelminlj; number of those (96 peK ent/ WCIl! sa tisfied with that (:ontil(:1.

Annual meeti ngs About 42 per(:ent o f the lawyers have attended at least tVo'O stale bar annual meetings in the 1;I$t five years. H()w(."VI::r, o n~ th lrd h<l'-le not attended any ann ual meetings In the last five years and only J percen t att ended 1111 five meetings. Some 17 l>ercen! of dle sample said they were at the 1985 meeting in Huntsville.

Figure 21 Should Specialization Be Implemented

IV. BAR SERVICES AND RESPONSIBILITIES In the questionnaire Alabama lawyers

Those who did nQl iltt end ~ re ilsked st."\ICral qu ~ti on s about why they did nOt go to the 1985 meeting. A conflict in schedule Is the most frequently ci ted reason. About 66 percent say Ihis is the reason th ey did nOt attend the 1985 meeting. A lack of interest, high c9st of attending. meeting not educatIonal enough and location are cited as the reason for not attendinglJr' fewer than 25 percent of the lawyers. Only 4 percent say the rea son for not attending was poor social events. Finall y, respondents were asked what type of speak!"!r they 'M)Old like to appear at the annual meetings. Nationally recog, nized attorneys (83 peKent), bar le<lders (69 percent), humorous spe<lkers (61 percent) and nation<ll polit!c(ll figu res (60 percent) were mentioned (roquem ly. â&#x20AC;˘

were asked OJ number of questions about

the sta te bar assoclatlor) and its activities. The state's attorneys generally have posItive feelin gs ilbout the ilssociillion,

54%

40 The A/abamd Llwyer 5pcdfic<1l1y, 45 per(cnt say The Ala-

bama L.1wyer Is fulfilling its Il!sponslbili. ty very 'Nell In proYld lrlS lnformation <lnd substantive articles of Interest to members of the assocliltion. Some 51 percent say thi s publiciUion is fulWlinglts responsibility adequately.

20 10 0

Ve.

Ethics enforcement The Sla te's attorneys are satisfied with th e way the bilr invt.!Stlgat~ ar'ld pros~ (:utes ethics violations. About )0 percCI1I say the bar accompll s h~ thi s (esl)QnSI. billty very well, Md another 41 percent say thi s respon sibility is carried out well. There is some dissa ti sfil cti on In thi s roga rd , however; m~a rly 20 l)CrCent SilY the bar is d o inS not ~ry ~II o r not at .,11 well.

BM staff

Nearly two-thirds of the sample SilY they ilre familiar w ith the 5' at~ bM'S st(lff and (unctions. Am o ng these, abou t 90 percent believe the staff Is courtcaus ilnd

172

67%

o Se ll design.

e"am

Peer review Combination

DKINA

May 1987

Young Lawyers' Section Annual "Seminar on the Gulf" Approaches

s In years POlst, thc SandeStin Inn Resort will be th e sening for the Young lawyers' Sec·

tion annual Seminar on the Gult May I S and 16. AnendOlnce has Increased almost every yeilf, {lnd Ih ls year's event promises to be onc of the best.

The comblnalioo of ClE credit ,md so. cia I opportunities milkes Ihls onc of

the most popular annua l seminars. Program Chairman Sid Jackson and Arrangements Chairman Presion Bolt, working with Presldenl-clecl Charlie

Mixon, all of .VIObile, have developed it

substantive program fOl'mat with en·

tertalnmen t guarante«! 10 please all

aUCrldccs. Opening at 9 a.m . on friday, May I S, the elE segment will include Warren lightfoot wi th opening statements (rom the de/enS<! view-

point and Jere Beasley from the 1)13In. t if( viewpoint. In addition, both lawyers wi ll deliver an opening Slatenwn t from a hypothetical c.15e. Selecting t!~perl s in workers' com· pen s.1llon ca~s will be discussed by Roy Scholl. Rick Alvi s and Roger lucas will cover tho topic of underln· sured motorist coverage, and Richard Dorman will speak on recent devel· opments In secured transaction s, UCC ,and bilnklng law. Judge Joel Dubina will advise attendees on what Judges expect from lawyers. FollOWing the Friday program, there will be a golf tournament beginning at I p.m., with prizes (or numerous categories, Including low gross, low net and longest drive. Those oot too exhausted from golfing will have an

The AfilbalT\il lawyer

opponunl ty 10 en joy a Friday night cockt ail pany and hors d'oeuvres, shrimlJ ;'Ind oystcrs poolslde, hosted by H are, Wynn, Newell and Newton, Birmingham beforE hearing ''The Sou th Practitioners," an all-lawyer band. Salurday, the CLE program rcCOflYCncs from 9 a.m. until noon, after which attendees c~n enjoy all the Destin area has to offer, The IClst planned event will be a cocktail par· ty from 5:30 to 7:30, given by Emond and Vines. ClE credit given for the seminar will be six hours. Al though registratloo will 001 be taken by telephone, there will be registration at the door for those: w ithout advance arrangements, For accommodations, call the Snndcs tin Inn Resort at 1-800·8 74·

3110. Results of Youn g Law ye r s' Sec·

tion's poll on specializalion Responding \0 a proposal to the board of bar commissioners by the! Family Law Section, the Young Lawyers' Section recently polled its en tire membership, regarding specializa. tion. Tht! 1>011 and results compilated arc as follows: CERTIFICATION PROPOSAL FOR FAMILY LAW PRACTITIONERS The Family law Section has proposed to the bilr COMmissioners Ihat thc section become Ihe certifying body of Marital and Filmily Law ProlCtilioners. No such certifica tion presently exists for those practitioners. Re-

C laire

YLS

A. Blac k President

quiremenlS haye been proposed as Ihe ba sis for granting Of denying the proposed certification. To assist the Young lawyers' 5c<;tion in respond. Ing to the following proposal s made by the section, plcase Indicate your fallOr or d lsfav()(: 1. At least (lve years of actual praCtice of law of which at least 30 percent has been spent In actlye partlcl. 1)"1 tion In marital and family law. These five years of practice shall be immediately preceding application, AGREE 117 (28%' DISACREE 284 (69%) NO OPINION 11 (lor-) 2. The trial of a minimum of 25 contested marital and family law cases In circuit courls during the fivc years Illlmedlale!ly I>rccedlng application. All such ca ses must have Involved substantial leg.11 or factual issues other than Ihe dissolu tion of marriage. In each of these 25 cases, the al>I)licant shall have been respon · sible fot all or a maiority of the presentation o( evidence and rcpres(!ntalion of the dienl. At least 1L'n of the 25 cases must haye been submitted 10 the trier of fact for resolution of one or more contested issues. On good cau5C shown, for satisfaction in part of the requirement of the 25 contested

I7J

marit... 1and family law cases, the Marl,... 1 and Family L..1W Certifi~'ion Committee may consider involvement in I)rotrtlctcd

litigation. AGREE 91 (22,) DISAGREE 307 (75'%.) NO OPINION 12 13"4)

,......... ..

'''- '

'. ~.

), Within three years Immediately preceding application, the appl1cilnt shall have substantial Involvement In con路 tested marital and family law cases sur路 flclent to demonstrate special competence as a marital al1d family practitioner. Substantlalln\lOllIi!ment IndudeS active participation In client InterviewIng. counseling and In-.titigatingi preparation of pleadings; partlclpJlion in dl sc~ry; taking of testimony; presentation of evidence; negotiation of settlement; drafling and preparation of marital settlement agreements; prel:l311Jtion and drofting of both pre- and postnuptial contracts; and argument and trial of marital and family law cases. SubstilllUallrwolwmen! i11so indudes actl\!(! participation in the aJ)J>cal of mnrital and f,lmlly law cases. fGREE 161 (40"4) DISAGREE 227 (5'''4) NO OPINION 13 ()'4)

Sll~ye Rowe,

past presidelll, Birmingham YLS, .11 Birmingham oowntown firehcwse

she/ler

4" The applkClm shall select and submit names and addresses or siI( lawyers, rtOt assoclalCS or partners, as references to attest to the applicant's InvolY(Jmen! in marital and family law and shall be familiar with the applicant's practice. No less than two shall be Judges of circuit court ~ in the Stale of Alabama before whom the applicant has appeared as an tld芦atl! in CI trlal of a muitalllnd family law case In the two )'Cars Immediately preceding the appIlCCl'ion. In addition, the Marital aod Family law Certification Committee may, at Its option, send reference forms to other attorneys and judges, and make such other Irwcstig3tion as necessary.

AGREE 133 (32"10)

Blrmlnsllam YLS members (left 10 right) Ralph Yielding. Norman lelmundsen, Terri

/.Dram, Chllrlle 10ralll and "Billy OQdson prep.1,.,' meal for sheltty.

174

Dl.>-\GREE 259 (63%)

NO OPINION 16 (4%) 5. The applicant shall make a satisfactory showing that within thc three years Immediately preceding application he has minimum apl)~ postgraduate educational experience In the field of marital ilnd family law. Such eKperience shall be at: (a) teaching a (ourw in marital and family law; (bl completion of a course In marital and family law;

May 1987

Ie) p.uticip<ltion as a p.1nollst or speak. er In a symposium or sim ilar pro-gram in marital and family law; (d)anendance at a Ie<:ture series or similar program conceming marital and family law, sponsored by a qualified educational institution or bar group (c ) authorship of a book or article on marital and family law, publlshlXl in a professional publication or journal; (() such other educational t!)(perience as the Mari!J! and FJmily law Certification Cornminee shall ap~. For appllC<ltions flied In 1987, there shall he a minimum of 40 hOurS, For ilPpllcalioll$ filed in the year 1988 and thereafter, there shall be a minimum of 50 hours. AGREE 93 (23%) DISAGREE 257 (63%) NO OPINION 18 (4%) 7. The ilpplicant's performance of the requirements 5t,lIed In 1-6 alJoy(., as well as the f(.'Vicw and examination requlrlXl, shall be performed by the Certification Committee of the Family 1..1W Section of Ihe AlabJma Stdle aar. AGREE 148 (36"10,1 Dls.-\GREE 229 (56") NO OPINION 35 (8") With the Young LawyeIS' Section now constituting approx imately 45 percent of the entire Alabilma State Bar, the SUM,,!, results are obviously signlficarlt, Each of the family Law Sl!(:tion I)roposals met w ith d lsagreem(!flt from the lawyers Pil l" Ilcip..lling in the SUM"!', Indicating that those respondin g reject the Section's pr0posals by a majority, ranging from a low of 56 perCent to a high of 75 percen\. The results of the survey, In respon$(! to the supreme court's invitation for COrlrmcnts to the pro po~ ilmendmcnts to Canon 2 of 1he Code of Professional Responsibility of the Alabama State Bar regarding advertisi ng of certification, have been submitted to the court.

Indude president-Jay Juliano; presidcn telect-Rebecca ShOlvs; vice-I)resldentScott Boudreaux; SCO't!tary-Bob Norman; trea surerÂˇTom Young, assistant Ireasurerlaura Petro; and eMlCutlve committee members Claire Burse, Jim Gray, Tom Heflin, Roger Lucils, Spin SI)ires, Marda Sydnor, lames Bradford, Jay Rca, Julia Stewart, laBella AI~'ls, Mitch Damsky, William Gant, Tony Miller, Sammye Ray and Steve Shaw. The Birmingham 'rOung Lawyers' Section Is now sponsoring a monthly m~al for residents of the downtown firehouse

$hclter. Local young lawyers prepare and seI'VC the$(! mei1I ~, and they should be congratulated for thi s worthwhile contrlbutioll to their city,

Bar induction ceremony to be held On May 26, the Young Lawyers' Section will sponsor the bar Induction ceremonies In Montgomery. Chaired by laura Crum, Montgomery, the program will Include an address by lee Cooper, Birmingham, who currently serves il5 Alab.lma's delegate to the American Bar Association, â&#x20AC;˘

Birmingham Bar Association Young

L.lwycrs O lncers and Executive Committee members recentlv elected fOr the Birmingham Bilr Associ ation Young lawyers

The Alabama Lawyer

175

Something to be thinking about. • • This year's annua l meeting in Mobile

promises to be one of Ihe best ever, and one rcason is the speaker for the Bench & Sal' luncheon, July 16, 1987. Stephen H. Sachs was oorn In Baltimore January 31, 193 4. He received his undergmdulltEl degffie from Haverford Collegc In 1954, won a Fulbright Scholar-

ship \0 New College, Oxloro Urllverslty and spent two years In Ihe United States Army before graduating (rom Yale law School in 1960. During his las\ year in law school, Sachs W{lS ,m <lssistl.lnt instructor In COn-

Slilulionallaw al Yale. He served as a law clerk to the late ludllC! I'len ry Edgerton of th e U.S. Court of Appeals (or the District of Columbia Circuit from 196(}'61 and In 1961, Morney Gener.;!1 Robert

Swpilen N. Sachs

Kennedy appointed him an assistant U.S. Attorney, He served in thM cClpadty until 1964. From 1964 to 1967, Sachs wa s an associate ar)d partner in the law firm of Tydings, Rosenberg & Gallagher. He served as reporter to the Committee on State Finance and Ta)(ation of the Stale of Maryland Constitutionill Convtontion Commission from 1965 to 1967.

CARLSON, William Tunstall Jr. 400 Pcrydras Street, Suo 2600 New Orleans, LA 70130 IRIS, Herbert Allen 6509 Su~:ar Creek Dr. S. Mobile, AL 36609

176

After appointment as United StaleSAttorne)' for Maryland by President Johnson in 1967, Sachs concentrated on the prosecutiOn of CllSt..'S i(r\.()lving white collar crime and public corruption. From 1970 until his election as attorney general in November 1978, he wa s ir\ private law practice In Baltimore. For the 51)( years prior to hi s election he Wit S a partner in

Winter 1986 Admittees Alabama State Bar

the firm of Frank, Bernstein, Conaway & Goldman. Sachs, a Dl';lmoc;rat, became Maryland's 40th attorney general January 2, 1979 arId was re-elected in 1982. He was admined to the Maryland Bar In 1960 and the Supreme Court Bar in 1965. He has served on the boards of the Baltimore Urban Coalition, Sinai Hospilill, the Enoch Pratt Free library, the Baltimore Regional Red Cross and the Baltimore Bar Foundation, Inc., and taught criminal procedure and trial practice al Ihe University of Maryland Law School from 1969 10 1976. Sachs, a fellow of The American College of Trial I.<IwyefS, is the re(ipien t of awards from numerous civic organizations and educational Im!1tutlons. He Is the author of " The EKcluslonary Rule: A Prosecutor's Defense;' Criminal Justice Ethics, summer/fflll 1982, and the co-author (with John P. Roche) of ''The Bureaucrat and the cnth'-Jsiast: A Study In thl;lleadtarshlp of Social MO\I(!ments:' Western Political Quarlclly, July 1955. Sachs Md w ifc Sheila, an altorney, reside in Baltimore with their t'M) Children, Elisabeth and Leon . •

SMITH, Thomas Verner P. O. Bo)( 2103 Jackson, TN 38302-2103 STEWART, Charles Calloway, Jr. P. 0. Box 70 Blakely, GA 3172]

MANNING, Ke\lin Michacl P. O. Box 208 Abilene, TX 79604

SCHOEN, David 789 Madison Avenue New York, NY 10021

STRICKLIN, Michael wayne Route 1, Box 498A Hanceville, AL 35077

MOOR, Karl Roy 412 Meadow Dri\'C Birrrrin8h~m, AL 35243

SCULLY, William Edward Jr. 60 VVoodwind N. Hinesville, GA 31313

TALKINCTON, XQI! Randall 304()..B Southrnall Clr. Montgomery, AL 36116

RUSS, Susan Ellz<lbeth 1301 S. NlcDonough St. Montgomery, AL 36204

SMITH, James T1mothy 942 5th Avenue N.W. Alabaster, AL 35007

WAGGONER, Mark. ThomflS lB29 Mission Road Birmingham, AL 352 16

May 1987

Profile Gary Carlton Huckaby President-elect 1987-88 tlon Panel fOr U.s. MaslstrJtc, t983, He WJS chosen cnairman of the GricvJncc Committee, 1976; Bencn & Bar Relmion s Commlnee, 1981; COJM)ntion Host Com· mlttee, 1971; and L~w Oily Commilfee,

1968. Huckdby

Sta te bar acti vities Huckaby presently is a member 0( thc

PurSUlllll 10 the Alabam/l SIdle Bar's rules governing rile election of (he pres-

Iclent-elect, the follOWing is II brief b;o8filphical skefch of Cary Carlloll Huckaby 01 Hunf5ville, Alabama, I luckilby is rhe sole qualifyins c.lIldid..lle for the posilion of presidenl-elect of the Alabama SI.lIC Bar fo, the 1987-88 lerm .

Education and earl y career years Iluckaby, iI na! \Ie of LOlneu, Alabam.a, Is a p-1rlncr wi th the firm of Bradley, Aranl, Rose & While. He received his ur\dcrgraduiJrc deglt.>e In 19&0 (rom the University of Alabamilllnd law degree in 1962 from the Un,versl ty's School of Law.

For rlm:.-e years. 1%3·66, he served in the Unit(.'(1Slilles Air Force, IC;Jvlng as a cap-

lain UAG Corps), Local ba r service He has scl'\'ed as president of rhe Huntsville-Madison County 6M Association, 1977-'8, and was a member of the Madison County Judicial Sell.oction COOl' O1isslon, 1975·8 1, and the Judicial 5elec·

ooJrd of bar commissioners (elected In 198 1), and the DiSciplinary Commission;

Ill! also is the chairman of tne MClE Commission (a member since 1981). He cnairt.'<! tne eo.-cmtlnce Commillee, 1983·66. and received the st.l1e bal"s Aw.lfd of MCfit last ~ar for that effort. He also dCYOted time to the editorial ad· visory board of nIL' AI"banlil I.mvyt:'r (1970-71), the Citizenship Education Com· mill(."'e (1971-73) and the ExCCutive Committee (1962·63 and 1984-85).

Ame rican Ba r Associal ion work HuckabYs work with Inc ABA has Included serving as chairman 0( the StandIng Commillec on lawyer Referrill and Illform:lti on Services (1962·85) and the Special Commillee OJI Delivery of Legal Services (1976-79). He also has ser'.«l in the House of [)c1£!gatl.'S (Slate bar reprcscntati~ 1982.present) MKl as a member 0( the ConSOrllum on l egal Services and the Public (1976-79. 1982·85), the Tilsk Force on l' ubl1c Educmlon (1976) and the Standing Commi ttee on Lawyers in rhe

Armed forces (1971-73). He currently is serving on the ABA Anrlual Fund Committee.

Ot her profess iona l and civ i c activities Huckaby has ck.>Yoied time 10 rhe bo.lrd of directors of Ike AI<lbarra law School Foundation (1981·present), the Alilb.lma L:r.vlnstitutc (council mcrrur 1979·prcsen!) and ,1$ iI member of the Am eri can judicature Society and 1977 chairman of rhe Filtrah L..1W SQciety. The Madison County Elected Officials 5.1lary CommissiOn, the Citi zens Com· mittee on Higher Education of Alab.lma. rhe Huntsville High School '~15k Force and the HuntsviUe..Madison County Lo· t al Government Study Committee Oudiclal SectiOI1) have counted him as a member. Huckaby has been a dlrcctor of the Mental Healtn Association of Madi· son COUllty 097Q-761, the Tennessee Vdlley 80( Scouts ol America (1975·79) and the Council for International Vi sitors of I-Iuntw ille-Madison County (1983· prescnt), i1l1d wa s president of 111(.' Ilunrsvlfle-M;ldlson County Ment,,1 "Ie;rhh Board from 1977-80 (member 1974·60) and the MadiSOn County Heart Associa· tlon. lie has 8i~n timl! as scoior warden of tne Episcopal Church of the Nativity in Huntsville. He Is marri ed to the former Jeanne Davey, and they have three sons: Gilry, Jr., John ;md Michael. •

177

Alabama State Bar Rules Governing Election of President-elect and Commissioners Adopted by the Alabama State Bar SOllrd (I f Bar Commissioners and approved Dlocembcr 5, 1986 Stal~ment of Purpose These rules are adopted [0 SO'v'Crn elec-

tion of the l)resldcr'II-cIC(t and commissi oners of the Alabama State Bar, pur-

SUllnt to SCCIIorls 34·3·16 and 34-3-40 through 43, Code of Ai,lb,lnla (1975). In adoptinglhcse rules, the Board of Commissioners of th" Alnbilma Slate 6tH exI>rcsscs Its Intent Ih:1I [hey sUPf;lrsooe (Ill

previOus rules and policies on these matters,

Election of Presidcnt-clcct The prcsldcnt-clect of rhe Alabilma

State Bar Is chosen annually and

take~

office il 5 president-elcct allhe end of Ihe annOill meeting held during the year of such election.

I. Qualilicalil)m of ( i1ndid"les CUldidil1es for the o(fice of presidentelect shall be merllbe~ In good standing of the Alabama State Bar as of M<lrch 1 of the year of the election. They shall possess a current privilege license or SI)C(ttll membel'5hip. II. Nominations Candidates must be nominated by petitiOn of at leas! 25 {twenTy-five} Ala· bama State Bar nu~rnl~r$ in gl)()(! stand· Ing. Such petitions arc to be fited wi th the secretary of the AIIlb.1rrra St;rte Bar on or before March 1 preceding th e electi on. Petitions filed after March 1 shall not be accepted and the member will nOt be (Iualifie<! as a candid.lle for the office of prcsidem-eI(.>(1. III . Publication of candidaq Also I:rt March I, a candidille for the office of p((Sidenl-elf'(t win submit to the secretary biographical and professional datil ilnd a black ilnd white photograph. If received by MMch 1, this inform.lllOrl will be publisht.>d in the May issue of The A/aooma lawyer, as an announcement of thc carl didacy. Any information received

178

ilfter March I shall not be published. IV. Campiligns A. Candidates shall not campaign prior to February' of Ihe election year bUI thQy may (lnnounce their candi dacy at ;1rW time. B. Each candid...,IC shall be (mlitit.'CI to one b.lr-wlde mal!lng of camp<lign litera· ture, at his or her expense, through the stilte bar. Candidates shalt avoid mililings by group~ with which tht."Y may be ilSSO' clated, such as alumni or specitllty bilrs. D. Excessive use of telephone solicita tiOrl by persons Other Ih(1n candidates should be avoided. E. Solicitation by mall or support for iI nominee by an Indiyldual lawyer is proper; provided such letter be on the lawyer's personal stationery or the law firm's stationery, to his or her personal fderlds, at his ()r her (MIn expense. With the exception of rwnspedalty county or circuit b.lr assodmlons, two Of more lawyers sha ll not Jointly solicit Support by milil of ilny c.lndldate. F. Candidates shall refrain from seek· inl! or publicizing endorsements I:rt gro\Jps. With the except ion of rrOrl· ~ I~dalty county or circui t bar associa· tiOrl S, no {;andidate or ;:myone acting on his or her behalf shall solicil \I()\es by maillr1glo selected I!rQups within the bilr or specialty bars. G. The executive council of the Ala· bama Slate Gar shall 5e~ as the elec· tion superylsory Cornmillt.'C 10 ensure compliance wi th th ese c.lmpaign rules.

H. The commi ttee sha ll resolve any complaints or challenges wi th resl>ect to {;ampaign practices. Such complain ts or challenges mUSt ~ in affid;,wit form, filed with thc secretary of the Alabilma State Bar rlO latN tharl 15 (li fft."!!n) oi1Y5 (lfter the close of the annual meeting. V. Election procedures A The secret(1ry shall announce the elC!clion by publication in the )(In\J(lry

ill1<1 March issues of The A/ab..lma I.tlwyer ea{;h ye(lr. In the May issue, biographical ilnd professional data and photographs of the carldldales shall be published. B. The secretary shall p~l)trre a b<llla! con taining Ihe name of each qualified candidate for Ihe office of prcsident-elcct. C. A billiot, plain envelol>C and return envelope with sp.:lce for il signature shall be mailed to eilch member in good st;mding between MilY 15 (lnd June 1 each year. D. Each ballot shall be markt.>d by the recipient mernber, pla(E!d in the plain envelope provided and both shall be plated In the return enllClope provid(.'d. The return envelope shall be slSrled I:rt th~ member, in the sp(lce provided, cer· tifying it a$ thl;! member's vote for the of· fice of president-eiec;:t and certi fying that the nlember Is qualifit.'(llo ~te, i.e. is in good standing with thi! AllIbama State Bar, Only one ballot may he returnt.,(j in each certi(jCiltion envelope. E. Ballots may be mailed or delivered to the Alabamtl State Bar, provided they arc received by 5 p.m. on the Tuesday preceding the ilnnual meeting of the state bar. Ballot ~ re<;eiVl,,>d at state bar heild· quarters after the pr~eding deadline sha ll be null and void. F. The secretary, or desigrlf!t'l, shall maintai n iI poUing list, checking off each member's 0.11101 as Il ls receiyed at state bar headquarters. G. On the third day of the annuill meeting, an elections committee com· posed of two b.1r cunmrissioners aIr pointed by the president <lnd thl! ~ retary. or deslgnC(', shall certify the results of the balloting. VI. Assumption of office, dutie§ The ~uccessful candidate for president. elect sha ll ilssume offi ce ~t the conclu· slon of the annual meeting followin!/. the electlOll arId sha ll Serve as a member of Ihe executive council of the board of commissioners.

May 1987

Election of Commissioners Thc 110ard of Commissioners of the Alabama St,lte Bilr is composed of at least onc mC'mb(!r from (lilch iudidal cir· cuit, a member from that pmt of the Tenth Judicial CircuiT known as the "Bessemer Cut-Qff" eleclorJI district and One addi· tional commissiooer for eJch 300 nlem. bers of the State blr who maintain their principal office in a circuit as of March I of each ~ar, up to ten commissioners per circulI. I. QUJ lific.1tions of candid" tes " nd members A. Each candidilte shJII be a member in good standing of the Alabama State Bar and mainl(lin his or her princip.ll offi ce in thc cin;uil he or she seeks to represent. B. Each commissioner Sh,ll1 maintain his or her princip;ll office in the circuit ~prcsenlcd. Should an incumbent com· missioner's principJl office be removed from the circ;uit represented, the position of commissioner shall be declared v,lcant and the ullc1(pired term shall be flllcod in accordance wi th Section 34·3·43(01)(8) Coele of A/'lbama (1975). II . Nominiltions A. One or more candidates nl,,\), be nominated on one petitlon. Each petillon must be signi'(l by five or more memlJcrs In good standing maintaining their prin. clpal offices In the cirCui ts where the nom inees malnt~ln thcir prinCipal o(flces. B. A member in 9Xld sliInding may become a candidate lrom the circui t 01 his 01 h~r principal offce by filing a wl illen declaration of candidacy. C. Each candidate must be nominated or declared fOr a de~IKna ted posi tion; however, all elections in multl-(ommissioner circuits shall be at.large elCC1ion5. D. Nominating petitions or declarations of candidacy mall be flied with the secretary of the Alabama State Bdr no later than 5:00 p.m. of the last Friday In April of thl! ch.><:tion year and shall be null and YOid after that date. III . Campaigns A. Each candi dat~ and his or her sup' pOrters should make a reasonllble effOrt to represent the candidacy In a dignified manner.

The Alabama Lawyer

B. Each candida te may recel\iC, free 01 charge, a list of those persons eligible to YOte In his or her circuit. Additional lists shall be I)rovlded at reasonable cost. e. The executive council of the Alab.lma State Bar shall resolvc any compl;lints orchallengcs with respect to campoIlgn ~acticcs. Such complaints Or chalhmges must be in ~ffidavit form, flied with the secretary of the Alabama Slate Bar no later Ihan June)O of the election year. tV, EIee:tiQr'l procedures A. By March 15 of each year, the soc· rctary shall certify to the bo.ud the num· ber of members In good standing maintainrng their I)rincipal office In I!ach circuit and in the "Bessemer Cut-o(/" elee:· lora l dlstrl(1. (A home "ddress sha ll be used on ly when the member In good standing maintains no office.) B. Places and Terms I. Based on the census, the secretary shall certify to lhe board thc rlumber of commissioners to which each circuit is cnlh iLod. 2. If a circuit is entitled to fewer commissioners thiln iT h(ld the prC'o'ious year, the most recently creilted place will be elimln,lted as of June 30 of the census year. J. If 3 circuit is el1litk.od to more commissioners than it had the l}roviou5 year. one or more places shall be created alld a commissioner or commissioners shall be elected for a three;.-ear term. 4. Beginning in 1987. places will bed~ signated "PI3(e number \" (the present commissioner position), "Place number 2" (the ne~ t commissioner poSitiOn) and SO on. All elections In multicommir ~Ioncr circui ts shall be at·large elections; hO\'le'.'Cr, each c;andidate mllst be nominated or d(.'Clared for a designated position. 5. Terms of IncumlJcnt commissioners are hereby retairled. Terms of commissioners for a p.lrticular circuit should not @1(plresimultaneously,therefore, for tne 1987 election on ly, commissioners e!t>cl(od to tne follQY,Olng places ~h all be elee:ted for the terms specified. Regardless of Ihe IcmBTh of the Inithllterm, sub~llIent terms shall be three years. Place Number Term I year 2

]

•

2 years 3 years I year

5 2 ycars 6 7 3 years , year 8 9 2 years ) years 10 C. Notice of Election In the Jalluary and March Issues of The Alabama /..awyer each ycar, Ihe secretary shall give notice of the circuits due to elec;t commissioners that year, with a disclaimer thill some places might change as a result of the annual MalCh 1 census. D. Ballot ing 1. After the last Friday In Ai)!'il, the sec· retary shall preparC! a ballOT lor each cir· cuil election. 2. Between May 15 and June I of each year, il ballot, a plain envelope and a return (.'fM!lope with space for a sigmuure shdll be mailed to each member In good standing in the ci rcuits electing commissioners. 3. Each ballol Shilll be marked IYy the reclplenl member and pl~ced in the plilin envelollCS. Both shall be placed in the return envelope ar\d It sh~1I be Signed in the space provided, certifying it as the member's YOte for a commissioner or commissioners and cCftifylng tnat the member is qualified to vote, I.e. Is In good standing with the bilr and mainlalns his or her principal office In the clr· cull where the el(.'Ction is occurring. On· Iy one ballot may be returned in each c;ettific.ltion envclope. 4. Ballots must be received in the office of the Alab..lma StaTe Bar by 5:00 p.m . on the second Tuesday in June of each election year. 8aliots received after the I)recedlng deadline Shilll be null and YOid. 5. The elCCllons committee appointed fOf counting of presldcnt-elect b..ll1ots shall COUllt the 0011015 for commissioners' elections and certify the results on the Monday following lhe second Tuesday In Junc each yeaf. V. ASSUml)tion of office, dulles Successful candidates for commissioner Shilll ~ssumt! office on July I fol IQY,OinS The elecllQl'l .100 carry out those dUTies specified In Section 34-3-43, Code of Alabama (1975), •

179

Legislative Wrap-up by

ThC! 19B7 regular session of Ihe leglslalum began April 21 , 1987. Top on the agenda is " tort reform." The primary

tOtt rerOnll bills Ullder consldcraUon deal with the following subjects: 1. medical malWJCl lce;

"'-(lnve;

a. non.qualified corporations, b. transfer of cases to county morc cO!1venicnI for witnesses and In Imerest of justice,

c. claims arising outside of AlalJ'lma amend Ala. Code SectiOIl 6-5-430; punitive damage cap equal [0 compen satory damages but not greater than $ 100,000; frivolous lawsuits allow judges [0 award attorney

fees and court costs to defendant payable by the S. 6.

plaintiff Or pJain t iff'~ lawyer; abolish scintilla rule; abolish coll<atcral SOu rei"! rule; redu ce statute of limitations for " 1983" aCllons

from six years to two years.

law Insti tut e bills The La w Institute will present five bi11s to the legisl(llUre for consideration. One concerns guardianship, one trade Sl.><;rets ,md thrl.'e reill estille.

Alabama Uniform Guardians and Prot ective Pro路 ceedings Act This comprehen sive bill dlstir)gulshes belwCCll "gullrdiilnS" of the person and " conservators" of the esta te of ward s. PriQr to thi s act Alabama used Olle term, "guardian. " to (haracterize the duties and responsibilities of both oft1ci!s. See Alabama Lawyer, MiHch 1987. for a review of this bill.

Trade secrets The protection of trade secrets in Al abama has been left to the ' OUrlS. At common law Ihe definition of " trade secrets" is not clearly defined; this act does define It. To qualify <IS a trade s(>cret thc SI..><;ret Cl) must be used. or If not used, Intended for use, in iI trade or business; (2 ) must be Included or embodied in a formula, Polltern, com路 pilation, computcr software, etc.; (3) Is rlOt public:aliy

180

Robert l.

M cCurley,

Jr.

known and notgenera11y known in the trade or business; (4) cannot readily be ascertJined or derived from public information; Md (5) hilS signific.)nt economic value. Al so, rea sonable efforts must be made to maintain its secrecy. The act further defines "imprOP(~ r m~;;rns " 01 obtaining the informiltion ilnd whal constitutes mi~ppropri ation of the tradt:! Secret. The !.JCt provides for injunctive relief, recovery of profi ts, attorneys' fccs and t:!xt:!mplary damages.

Deeds in lieu of foreclosure The Real Estate Committee, chaired by Hugh Lloyd of Dt:!mopolis, with Professor Harry Cohen of dle University of Alabama School of Law, completed a statute addressing "Deeds In Lieu of Foreclosure." Professor Cohen explllins that numerous inWumQntS ofum ~ tyled as a " Deed in Lieu of Foreclosure" have bc<!n recOfdcd In Alabama. USUil!ly these dlXuments lIre COlwcyallces from a mortgagor to a mortgagee of the cQulty o( redemption . ihe practi<;e has caused a great deal of confusion among real est;)tC people, lawyers, title cxamlners and the general population. It has been ~i d thcse conveyances are foreclosure deeds, from which the statutory right of redemption emerges, and tha t they preclude other lien holders (rom redeeming the property to protect their interests. There is little doubt these conveyanc:es are 110t foreclosure deeds, ilnd they do not give rise to the sta tutory

Robert L_ McCurley. Jr., Is /fie ciirector of the Alabame Lew Ins/iluta a/ Iha Univ6rslty of Aill bil ma He recelwd his

uncifJfQfeciuelo [Jnci Jew ciegrees from /ho University.

May 1987

riSht of redemption . In 3ddilion, such deeds do not adversely affe<:! the rights of peoons who ilre not parties to Ihe Instrument. The suggcsted St3tule Is an effort 10 e)!. plain 3M rationalize Ihe subsequent release of iI mortsaSOr's equity of redemption to the mortgagee. The statute dearly descr i~ the law which exists, Ihal deros from mortgagors 10 mortgagccs affect only the rlghts and obligations ollhe parties to the deed. BecilUse the instrument Is a private transaction between the mortgagor and the mortgagee, there 15 no foreclosure ol the 5eCUrity interest and no statutory right of redemption arlses. The rights of other lien holders, Judgment creditors or other Interests are not affected. Rcdemption of rcal property This PrQposed act basica lly docs three things: 1) establishes who can redeem and Ihe priority of redemption; (2) defines allowable charges; and (3) provides that for commercial venlures which are forec losed by judicial sale filther than under a poo.yer ol sale, there Is no redemption, providt.od this does not apl)ly to agricultural lo.lns or dwellings wilh one 10 four units occupied by the mort· gagor as a residence. See .MaOOma Lawyer, January 1986, lor a review of this bill.

Introduce Your Clients to a Valuable Service. Refer them to Bus iness Valuation Services for expelT determinatio n of fuir market v:t)uc of busincsscs, and fi nancial analysis and consultation in cases of:

o Estate planning o Marital dissolutions o R.ecapitaliz.:ltions

o Estate settlement o

Employt."t: stock owne.~hip

plans

0 B:mknlptey proceedings 0 Mergers or acquis itio lt~ 0 Buy-seU agreements 0 Dissidcnt stockholder

suits

Contact Dr. Jo hn H . Davis, m 4 Office l\trk Circle . Suite 304 • Ilinningham, Alabama 35223 P.O , Box 7633 A • Binningham, Alab:una 35253 (205) 870-1026

Powers contained in mortgages Published notice of foreclosure has ~n under attack as being constitutionally unsound, but has been upheld where Ihere Is no state official or state aClion inyolved Inlhe foreclosu re. This aCI clarifies this iss\Je for Aillbama for there 10 be no state <lCllon In foredosures. Sec A/ao.lma L.1WYCr, I;lnumy 1987, (or 0;1 review of Ihis bill. Anyone desiring a copy of these prol>Osed revisions may wrlle the Alabama Law Institute, P.o. SOl( 1425, TuscalooS<.l , Alabama 35486. •

1987 Annual Meeting July 16-18 on

MOBILE

rhe Alabama Lalwer

181

Opinions of the General Counsel by William H, Morrow, Ir,

QUESTION, Maya law firm continue to practice under a fi rm name contolinlng the name or nam(os of one or more deceased or retired attorneys if the name or nam(os of one or ml)re of the dece.uoo or retired attorneys of the firm or of a predecessor firm is used in a continuing line of succession, OIl· though no present partner or associate waS evtr a partner or associate of one or more of Ihe deceased or reUred attorneysl

ANSWER: ~, The name or names of one or more deceased or retired attorneys may be Included in thc nrm name If Ihe name or names of one or more of the deceased or retired members al the nrm or of a predecessor firm Is used In a cOOllnuing lioe of succession, althou8h no presenl member or associate of Ihe firm was ever a parTner or assoclil!c of Orle or more of the dcct'ased or retired allorneys.

DISCUSSION:

pertincnt paft, prOllidt.>d: "... If 04herwlsc lawful a finn name may Ule .s. 01 con· tinue to includc in, lis name the name Of names of one 01' morc deceased or reti~ members of the firm a of a predecessor fifO' In a cOl'ltlnulns line ci succesSion ....~ On October 25, 1985, the Supreme Coun 01 Alabama resclndoo Disciplinary Rules 2-101 through 2·106 and replaci..'<1 them wilh cenain Teml)()rary Dlsclplll'llUY Rules, 2·1OI(A) and 2-106(A). Tcml>or.uy Disciplinary Rule 2-10I{A) IJf(NIdes: 'i\ law~r shan not make Of cause to be made 1\ f.lllo(! Ot m!SleJdlllS communication about the lawyer or the I....... ye(~ ser· vices. A COffi(Ilulllc,)t!on Is false: or mblcadlnll lilt: tAl contollns a malerlal ml~~ntatlon ol fi10Ct or 1_, or omits a ract necessary to make che st.:llemenc considered as ,) whole not matefially misleading.'" Temporary Disciplinary Rule 2·105(Al prOVides: tAl HA lawyel ~Jn no! use a firm name, lel1e~ad, Of other profcsslonDI deslllf\~ c ion \h3\ v;olalc~ TempoMry DR 2-101. A tr..de name may be used by a lawyer In "r!,,~tt! 1)I~CljCt! If (I does not Imply a connection wllh a gOYClilment pgeney 01 with a public Ot chari table orsanlzOition and 15 not (llhl!rwiS(l In vlolmlon of Temporary OR 2·101 or Temporary DR 2·104."

In 1937 Canon 33 of the old Cilnons of Professional Ethics of thc American Bar Associalion WolS amended to fe,ld as (Temporary Disciplinary Rule 2·104 dC.lls whh an mtorney's follows: deslgnmlng himself as "p..llent attor!lCY': "admiralty" or "proc"Partnerships among Iawyt'rs for !hl! practice 01 their profestor In admIralty.") sion are very common and ilrc no! to be condemned. In the Prior to lhe amendmenl of old Canon 33 allhe Canons formation 01 pannerships and the u~ oI l)arlnt.·f!.tIlP names, 01 ProIC'isional Ethics of lhe Am(!rican Bar Associ~tion, which c.:Ire should De taken not to vlolillC ~f"f 10M', custOm, or fule ci court locally ilpplicable. Whell' partnershl~ ,ue formed added the language placed in Italics. Ihe Amcrican Bar Asbet~ 1/l<N~rs who arc not all admitit'd to practice In the sociation in Formal Opinion (6) 1925 held that a law fi rm court§ 01 the ~tll1e, C.lle ~hoold be Mken to lMIld af"f mismay contInue to Include in its name the name of a deceased leadinll n~me Of representil!lon which would ctC/lle II fal!.C p..lrtner J( lhe local custom Is 10 do so and such I)!<lctice docs ImJ)rt'S~loo a~ to Ihe pro(essiooal poshion Of prlvllegCi of the nl(!ml)er IlGIloc.llly IIdminL-d. In the fomloliion 01 partnf!f)hlp~ nOt fflS VIt in misleading the public 10 bcllClle that the defor the pr,lellce of l:aw, no f)e1'$C)f1 ~hou ld 00 adml uL>d or held ceased pMtncr is stit! alille and ol fa ctor In thc business of out as a pr~ctilioner I,lr member who IS n011l n1flmlJcr of the the firm . le8<,1 ,'rofenion duly autoorl~cd to I)Mctlce, and amenable One purpose of thi s opinion is 10 clarify Ihe opinion to professional discipline. In the selection and usc 01 a fiulI published In the January 1987 issue of The A/ab.lma Lawyer. name, no fllse, mlste.ldins, d~SUmed Of trolde nilme ~ould be used. The continued use of Ihe f\OIm!l 01 iI decea!tCd or That opinion WdS intended to apply to a llery lInlltoo fact rormer partner, whcn pcrml~~ible by local custom, Is no! un. slluallon. ethical, but a-re should be taken th.J1 no Imposition Of ~ For example: A lawyer or lawyers practice under a specific lion Is priKliced through this ow. \o\1len iI member dtlle finn, firm n(lme, The lawyer Or lawyers dIe or retire and another on becoming ~ judge, Is precluded rrom pr,}(tlClng law, hi~ lawyer or lawyers who have had 1'10 association as partners n",me should 001 be continued In the firm nillllll. "I'Jrtfl(ifShips bet>M!en r~fS and members ci od~1 p~ or associates wilh the deceased or retired lawyer or lawyers ~Ioos or nonpro(esslooal pefsom ~hould not be rorm«! or pe!"' want 10 OCCUI'" Ihe office and continue 10 practice under the milled where any part of thl! partnership's employn'ICfl! COl'\< old nrm name. slsts of Ihe jll'.l("tICe of lilW," (emph~§ls added) The use of a firm name composed or 1he surnames of cer· Prior to October 25, 1985, Disciplini'ry Rule 2·102(6), In taln lawyers who arc dec(!ased or retired, when the present

182

May 1987

partners or assooata5 ~re neYer P.1rt llCrs or associates of the dccca5(.'(i or retired lawyer or lawyers, contemplates a continuity and the use of this name by successl"-"! part1lC1"$. Certainly there are firms practlcln8 under the names of one or more deceased lawyers when none of the present partners or associates were ~r partners or associates al the attorney or attorneys under whose name they practice. This will clarify any mlsunderstandln8 crea ted by the opinion published In The Alabama Lawyer, although on the narrow fact situation con templated we feel th at that opinion is sound, Although the cited opinion of th e American B.1r Association Comml tt<!e on Ethics and Professional Responsibility construed the Canons o f Professional Ethics of the American 8M Association, we find nothlnK In the present Co{/e of

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Profe551onlll Res(X1n sibUlly of the Ala/ulma Stale Bar ..... hlch persuades us to a differen t conclusion .

•

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SOCRHLAND Sl~,tlll:STEMS 163

Memorials Aird, Jilmes Williams-Annls!on

Admitted: 1926 Died: November 24, 1986

M CKin ley, Reuben Floyd-Baldwin Co unty Admitted: 1951 Died: DOCember 22, 1986

Barber, William C.-B irmingham Died : December 14, 1986

iJeinerl, Wesley Cl'Orgl!-Tuscilloosa Admitted; 1934 Died: J;muary 3, 1987

Bewit!y, luther BOQne-Vestavia AdmiMd: 1927 Died: la!'luary 29, 1967 Fletcher, Gordon Augustu s-Mobile

Aclmined: 1931 Died: September 26, 1986 Flowers, Waller Wtnkler, Sr.-Nonhport Adml ned: 1932 Died: Augu st I, 1986

Fortenberry, Joseph Edwin-Wash., D.C. Admitted: 1969 Died: FebrU<lry 3, 1967 Gravts, Euge ne Hamiter, Jr,-Eufaula Admitted: 1950

Died: August 29, 1986 Hilmlet, And y. Jr.-ScolIsboro Admi ned: 1949

M o lloy, Daniel W ilw n, Jr.-MobJle Admitted : 1976 Died: March 22, 1987 M o nagham, 6ernilld AndrewBirminghilm Admil1ed: 1937 Dk-d : ~bruary 22, 1987 Newby, William Arthur-Prattvi lle Adr'l'li nc(l: 1949 Died: January 16, 1987 N ic hols, Alberl HughC1;-Birmil1gham Admilled: 1929 Dit,'(!: November 23, 1985

Roberts, hear

~adsden

Nhl1l l1 ed: 1933 Died: November 16, 1986 Spain, Frank E.-Cn;:en ~OOrQ Died: OClober 22, 198& Spencer, William F.-Birmingham Died: March 4, 1986

Dil>d: June 29, 1986 Holliman, Cecil Rhodes-Birmingham

AdmHwd : 1925

Died: February 17, 1986 Johnston, WiUi.m Edward-Mobile

Admittl.>d: 1939 Died: janual) 12, 1987

Jones, Upshaw Gri ffi ~lL.mlPka Admi tted: 1930 Died: January 3, 1987

184

Sullivan, MiI;hael Harold-Gulr Shores Admilu.-d: 1982 Died: AuguSt 20, 1986 William s, Marvin, Jr.-Birminghllm Admitted: 1940 Died: March 3, 198' Zeanah, Olin Wcatheriord-iuscaloosa Admi tted: 1949 Died: March 18, 1967

Oil .... \\ 1 \1 It IlUO IW /I

\~AlI

March 18, 1987, m.. rked the paSsin!:! of a respecled and distingui shed member of the bar, Olin Weatherford Zeanllh. ZCI,IIlah W.lS born O ctober 26, 1922, and rai sed in Ho lt, Alabama. He served as a company commander in lhe p<l cifit:;: Theatre from 19 43 until 1946 and received lhe Presidenti .. 1Unit Citation. He relurned 1() Tusca loosa and e.. rned his undergradui'lll! degree in chemical engl. nf..'e ring (rom the University of Alabama. Hi'! received his law degree In 1949 ilnd began practice in Tusca loosa thilt year, Zeanah served as di5trit:;:t attorney for Tuscaloosa from 1955 until 1959 when he relurned 10 priViitc pr.ctice 10 begin his own nrm. At thc l ime of his death he was lhc senior partrli'!r In Zi'!anah, !-l ust & Summerford . D uring his career Zeanah served as prcsldcnt of the Tu scoloosa County Bar Association and chairman of the Alabilm .. Stille B.. r CritM:lnr:1:! CQmmi1lce. He also wa s on Ihe Advi!OOry Council of the Alabama Law IllStitulC arld Ihc Na路 tional Parlcl of Arbi tra ti on Association. Zeanah was a Fellow in thc American College of Trial Lilwyers and il member of the Federil\ion of lnsurilnce Counsel, the Internal ional Assexlation of Insurance Counsel, the Farrah Law Society

May 1987

and the Tuscaloosa County, Alabamil State and Amerlc"n Bar Associa tions. He also was admitted to practice before the Unltoo States Court of Claims and the United Statl!S Supreme Court, He was a paSt prl!Skfent of the Tuscaloosa Exchanse Club and the East· wood Parenr/Teacher Association, paSt chairman 0( the Red Cross Blood Drive and a memOOr of the Warrlor·Tombigbcc DeYclopmcnt Associa tion, He served on the ooard 01 directors 0( First Alab.1ma Bank of Tuscaloosa and later on the bo.1rd of directors of First St.1tc Bank of TuscalOOS<l , Zeanah attended Aloorta Baplist Church where he taught Sunday school for many years, He is survived by his wife, Dorothy Ingr<lm Zeanah, and two elaughtl.1rs, Terry Zeanah and Karen Stokes. He was a deVOted husband, (Mher and grarldfather. Olin Weatherford Zeanah will be remembered by (rlcod and (00 alike for his integrity, his superior c<lPilbJliti and his famou s tenacity, He was a living exam· pie of the creed on his office wall that hard work, not cicYcrnnss, Is the s.!<;ret of success.

In 1979, Fortenberry joined the Justice Dcllartment as a trialliIW~r responsible for lovcstigating and prosecuting cases under federal antitrust laws; he h<!lel this position at the time 0( his death . ~ He enjoyed working on antitrust cast.'$. That's why he wanted to work for the justice {)(>partmen t ,~ said his wife, Ashlev Donerty Fortenberry. He was a member of SI. Margaret's Episcopal Church in W,lshington, Ihe American Economic Association and the Selden Society, a legill history organiza. tion. He waS also the author of many ,lr· tlclcs on fl!deral antitrust laws that appeared in various law journals. ..Ie is survived b)' hi s wife and a daughter, Dorothy Fortenberry, both of Washington; his p.uents, NolM rind Mac Fortenberry of Auburn, AI{lbama; and a brother, Ch(ldes Fortenberry of jackson, Mississi ppi . The family suggestS thM expr(''Ssions of sympathy be in the form of contributions to the Washington Oper" GUild. the Yale law School FUlK:i 0 ' the Fortenberry Scholilf5hip Fund, c/o the Political Science Department, Al.Jburn University, Auburn, Alabama. - reprimed frQm The Washington Timl.'S

I Ie was born In Mobile, Alabama, hI 1915, the son of S.1muel McCat- Johnston and Ruth Ulmer JohnstQn, <lnd was edu· cated In Ihe public schools 0( Mobile and received his lL.B. degree in 1939 from the University 01 Alabama. A! Ihe University, he was a member of Delta Kappa Epsilon fraternity, where he was affoctlonately known as "Slugger sill:'

In 1939, Johnston began pr.lCIidng law in Mobile with his father's nrm and CM· tlnued as an active and successful trial lawyer, practicing with hi~ brother and nephWlS, until his death. He was a second lIeullmant In the United States Army and se!\led his coun· try during \M:)rld War II. He was a memo ber of Dauphinway United Methooist Church, actiwln civic tlroups and servt.'d on the Alab.1mil DemOCratiC Executive Committee. johnston also was a mcmber of numcrous committees of the Alabama State and Mobile 60r Associations. I-Ie Is survived by his Wife, Margaret Anne Gibson JohnslOn; too daughters. Anne Johnston Oppenheimer and Melissa lohnston Oswald; fi'o(lgrandchildren; and other relatives.

•

JOSEPH E. FO RTEN BERRY Joseph E. Forterbcrry, 42, a trial lawyer for the United StatlS Justice Department'S anlitrust division and ctKhairman of the D.C. Bar Assocla t on's antitrUSt commit· lee, died of occlusive coronary llIherosclerosis February 3 In Georgetown Unl· versi ty Hospital. He lived In Washington. Fortenberry was born in W,lshlngton, but raised In O)<ford, M ississiPI)i. j'le received a bachelor's dcgree from Har· vard University artd a law dellree from Yale University I""" school. After re<:elvirtll his law dellree, Forten· berry worked for iI year as il law clerk for Judge Jonn c. Godbold of the U.S. Court of Apj)(!als for the Fifth Circuit In Alabama, before Joining the law firm of Rushton, Stakely, Johnston &. Garrell In Montgomery, Atahama, as an associate l.lWyer. !'lis next mO\le was 10 New York as iI seniOr aS5O(iatt! in tnc corporate law finn of Donovan, leisure, Ncwton &. Irvine,

\\lItt\\\ 1D\\ Awn ... I(HI ....... I() '

Wl11Iam EdW3rdS JohnslOn, a member of the Mobile, the Alabama SWte and the AmeriCiin Bar Associations died January 12, 1987.

Th<!se nollces arc published Immedl· ately after reports of death are received. Blographlcallnfofll'la!lon not appearing in this Issue will be publisfled at a later date if infonnatlon is accessible. We ask you to promptly report the death of an Alabama attorney to tnc Alabama State Bar, and \YC 'NOuld aPl>reciatc your asslst,'ncc In providing biogrJphlcal Infor· matlon for The Aillooma Lawyer.

185

IlAfI.1 _ . ""'0..,... _.", Io! ....... _ _ _ _ Of ....._ . . . . . . . . , . IIIffnt1. _ " ... tI "'" _ _ I ", _ III ""' ....... "'" oj 1101 - . '" ... ~ I'so pot oddilloo'!.ol .....t. o..>l1Iod ...... _ ...,.- ...... I>r ~tl lft 0«0Idi<'t to "'" 101.... ,.. pubI".,.". ...1Ied.... ...., '8, ,_ o...lIl ... _ ~ SoIM . .., ~,_ON<I I I"" lUI\' JI ~

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EX PAND ING AV FIRM in north Al a· llama city seeks experienced management 1;1i.lOr !aw~r 10 complemenl existing practice. Al}pl y to: P. O. Box 2006. Huntsville, AL 35604. FIVE·ATTORNEY ATLANTA FIRM wi th sophislicilled commercial and tax prac· rice ~ks two <lssoci;ues, Musl have one to three years' experience. One position In general c:orPOl(ltc ilnd lax, and one posit on in general corporil te, commercial lending and comml!rcial real esta te. Cimdldates rllu st have ex-

186

. .. , 1_ 0 - 11, ... S.

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ccilent acadl!rnic record and writing ability, Forward resume and wriling s,lmple to Jackson, Tyler & Chofnas, 509 Grill'll Building, 44 Broad Street, N.W., Atlanla, Georgia 30303. THE TROY AND ANDALUSIA offices of the legal Services Corporat ion of Alabnmn seek to employ a staff illtOrney andlor a I)aralegal For the paril1egill posi tion, the salmy is $14,261.00 D.O.e., and for the attorn ey position, the salary is $20,296.00 D.O.E. Excellent frln~e benefits. Prefer applicants with pover· ty law experience, but not absolutely necessary. Please serld resume, writing saml)le and three references to: Steven O. Caley, Managing Attorney, legal Services Corporation of Alabama, 161 Soulh O.,tes Street, OQlh.,n, Alabilmil 3630 1. MONTGOMERY FIRM seeking associate In clvll li tigation lind commerdill claims. Top 25 percent of class, clerking experience preierred . Please send resume: All orney Applic'llions, P.O. Box 1402, Monlgomery, Alabama 36102. ATIORNfY JOIJS-Nallonal and Federal legill Employment Report: highly regilrdcd monlhly detailed listing of hundreds of ;,lttorney <lnd law-related Jobs with U.S. Government, other pubIId privatc emplOy(!r5 in Washington, D.C., throughout U.S. lInd abroad. $30- 3 months; $50- 6 month s. Fed· er.,1 ReporlS, 1010 \~rn10nl Avt .. N .W" #406-A6, Wa shington, O.c. 20005. (202) 393-3311, Vis-l /M C

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The Alabama Lawyer

Office of the Cle rk United States District Court Middle District of Alabama The Office of the Clerk Is Now Al:c~)tl llil Applications for the Position of;

!'ro-Se Law Clerk ISP Grade: 9·1()'11·12 S';lning Salary ~r Year: 522,458 to

532,567 CLOSING DATE FOR APPLICATIONS: MAY 30, 1987 OCCUPATIONAL INFORMATION : Pro-se law clerk Is a stMf poSiTion, hired by and reponing to the cleric of the United States District Coun. A pro~e IllW clerk performs dulles and rosponsibillties sllch as the following: ex.:lmlnes .. II prisoner petitions and complaints, including state habeas corpus petitions, motions to vacate sentence and civil rights complaints, determining if th<')' arc proper for fiI· ing: revieY15 and records all COrrt..'Sp(lfld('nce relating to such l)(!lilions and complaints; performs substantive scretlnll1l1 afler fihng of all prisoner petitions and motion~, Including sta te habeas corpus pt."hion~, mOlions to vacate sentence .1nd civil rights com· pl,lints and of other pro--~l'liligillions, such as social security and (!(IUal em· ployment opportunity complaints; drilfts ,Ippropriale recommendations ,HId orders klr the court's sigmllure; reviews ,Ill complaints, petitions and pleadings thilt h~vc oc'Cn filed to determine issues invol'lf.'d and basis for relief; performs rt.~mch as required, to assist the court in prepar· ing opinions; evaluatC!> and deter· mine~ thaI complain ts, petitions Jnd pl~ndln8s meet the re<luirements of federal and local prQCt'(!Llroll rules, form, payment of fetls and service; return s those docurrcnts not conform. inlllO Ihe stol tutes or rule~. wittt in· strUCTion~ for necessary corrccti On Or

compli,lI1CC; corresponds with pcti. tioners and complainants regarding prOCedural requirements, supplying them with appropri3te form s, documents and instructions, as required; aim I)(!rforms necessary cledc.11 work to acconlpllsh other dutie~. MINIMUM QUALIFICATIONS: To <Iuallfy for the pOSition of pro-sc law clerk a pe,..;on must be II law school graduatc (or have compleled ,111 law school studies and merel\' awailing confermenl of degree), for entry level requirements. DESIRABLE EXPERIENCE: This court is interested In an applicant who would <Iualify for the highest grade which would require thalllC1"SOn to be a meml)(!f of the bar of a s'a te, terri· torial or federal court of generJ! jurisdiction, ,lI1d who has at least t....o year.; of sl>cclaliu~1 experience in the prJc, lice of law, legal rescarch, legal ad· mlnlSlr31ion or equiVillent experience received aftcr grOldulltion from law school. SUBMIT APPLICATION AN D RE. SUME TO: Thomas C. Cawr, Clerk. U.s. District Court, U.s. (Ollrthollse, f~O. Box 711, Montgomery, AI3bama 36101. PhOne (205) 832-7308. Names of persons allplying will not be published, and application~ will be con· sidered confidential. AN EQUAL O PPO RTUNITY EM · I'LOYER Applica/ions n.'CeiVf...>d for thi! position m,ly be considered for any SImilar va· cancy which may occur wlthlll 90

daY$.

•

,.7

MeLE

News

by Mary Lyn Pike

Assistant Executive Director

elE now mandated in majority of

stoics

Continuing legilt education is now m<lndmory In 27 slates llnd l>ending Of un(lur study in 12 alhers. In the SQulh and

southeast, TC)(,,1\ LouisIana, Mississippi, Alabama, Georgia, Ter'lnessee, South Carolina, Virginia and ~t Virginia have adopted MelE. Florida's plan is pending !)cfore Its supreme court; ArkanS\lS and Nonh Carolina arc considering adopting il

1986 Alabama compliance data As usual. more than 99 percent of those subject to the ClE requirement met the compliance dl!adlinc or obtalnt.od permission to make up a deficiency and did so. Only 120 Individuals v.-ere cerl i· fied to the DiM:iplinary CommissiOn for noncompliance: " t \e<lSI 20 of these had sufficient carf)lO\lCr credits from 1985 to meet the 1986 rt.>qulrement but /J'Ver· looked Ihc nl!a!Ssity of submitting thc annual report. OYer 150 members look advantage of Ihe new deficiency plan procedure, submilling their plans by Januilry 31 and making up their credi ts by March I. It Is hoped thilt this number will dwindle rather than Increase with thc Imss"gc of time,

Recent MClE Commission decisions AI Its February 6 meeting Ihe man· datory ClE commission look Ihe follow· ing actions: I. \btoo 10 COOStrue Rulc s... as requir. Ing the filing of an annual report only If an ilttOrnt.>y is subjoo 10 Ihe 12-hour requirement. Accordingly, II voted to walYC the 1986 late filing fee for CKCmpt memo 001'5 and modify Rcgul"Iion 5. 1 so thaI flI lng by exempt membel'5 will be 01;1tionnl, unless credits are to be carried fOlWilrd. 2. Commended MClE Commission secretary Diane Wcldoo for her dlllgcnt performance during the admlnlslrator's month-long abscnct.

3. Acknowledged a complaint aboul the Imposilion 01 late compliance and laIC filing fees. 4. Granted t~ walvel'5 of the 1986 Clf requiremenl on Ihe basis of physic,,1 disability and authorlzl!d another on the basis of emotional disability, pending recei pt of a physlclnn's statement. S. Gromted an extension of the 1986 compllnnce deadline 00 the basis of fi· nancial difficulties. 6. Granted a rcu'OOcti\e special membership 10 iI nonpmcticins aMrney who purchased an actiYC license on the incorrect advice of a slate bOIl Slaff member. 7.l\uthol'lzoo return of a lale fiUng fee paid by an exempt altomC'(. 8. Declined to accept a deficiency plan fi led afler the Jnnuary 31 deadline. 9. Awarded I)mtilll leaching credilto an attorney who prepared a handout bUI was unable 10 present It. 10. Continued Ihe apprOYOO sponsor status of the Morgan County Sar Young Lawyers' Section. 11. Approyoo for half credil a seminar on taw office technology (A8IClEJ. 12. AppfO\o'Cd a Franco-American legal study tour (Professionill Semi nar Con$uhants). 13. APProvt.>d ad~rtising of OJ real ~t.lle rcorgal\lzatlOI1 alld foreclosure practice seminar wi thout Ihe "designed primari ly for attorneys" announcement usually required of the sponsor (National Business InsliMe). 14. Set ils next meeting (or 9 Il.m" Fri· day, April J, 1987. •

requ irement.

The plans arc somewhal varied in dl'li1i1 but uniform In substance. The annual requirement varies from a low of eight hours per year In Virginia 10 a high of 15 I>cr year In several st:!tcs. Many SIalCS, especially In the southeast, use a 60-minvte hour for calculating credi ts,

unlike Alabama, which uses a S().minule hour. An increaSingly common feature Is an al'll'lual ethics education requirement. There are two b3sic appro.lches; the first requires an aUorney to earn a cenain portion of the annu.11 credits by taking ethics educ.. !ion courses. The second puts thc burden on Cl Esponsors 10 weave ethics cducmlol' Into tllelr accrOOile(l prOgrJms.

188

1987 Alabama State Bar Annual Meeting

-MOBILEJuly 16, 17 & 18

May 1987

Ex Arguendo ... "A democracy cannot exist as a permanent form of government. It can only exist until the voters discover they can vote themselves largess out of the public treasury. From that moment on the majority will always vote for the candidate promising the most from the public treasury - with the result that democracy will collapse over a loose fiscal policy, always to be followed by dictatorship."

BIRMI NC HAM PUBLIS HI NG COMI'ANY 130 S. 19th Street, Ui l'll1 ingh'lIl1 . AlalJamOl 55233 205125 1路5113 FAX 205125 1-2222

Financial and Legal Primers Since 1910

• USCA II CJOI'I1lI8III. It off. .

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• USCA oonta1n8 the IuIIlext Of ~t CfA regoIatlonl. • ~ USCA proYidee valuable Legialallve History Not81 dIrectng )IOU to specIIIc ~ of the U.s. Code CongreuIoneI and AdrnlllslJ alille New&.

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t1r. WilLi,. D. Col ... " [:.Ip.U , Ho-.rd, Klltbe ~ Cobb. P. O. Bn 2069

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