commercial M Insurance p a,'practice o ICy
While some malpractice insurance policies can be an incomplete puzzle ... One company puts together all the pieces.
n iii
la bama a ttorneys want coverage where it co unts! Ma ny commercial malprac tice policies contain a penaIty- for-refus alto -se ttle cla use. Thi s clause can be used to force an in s ured to accept a n offer of settlement or, if ['ejec ted, pay the difference between the offer a nd the ultima te verdict. By contras t, AIM's policy gives its ins ureds protec tion a nd peace of mind . AIM will not se ttl e a case without a n insured's co nsen t a nd will not penalize an ins ured for refu sing se ttlement a nd going to tri al. AIM's poli cy even guarantees its insured s a voi ce in se lec ting defense co uns el. AIM does wha t mo s t commercial ins urers refu se to do:
Serve the best interest of Alabama attorneys.
AIM: For the Difference!
O
A芦orne ys Insurance Mutual of Alabama, Inc ,路 22 Invern ess Center Parkw ay S uite 34 0
Blrmlngho m. A lo b& m~ 3524 2 -4820
Telephone (205) 900-0009 Toll Free (SOO) 526路 1246 FAX (205) 980- 9009
.. M E MBE R : NATIONAL A SS O C IAT I O N O F BAR - R E LATE D IN S URANCE CO M P ANI E S .
TId ~[i'@ITiJi)~@[i'@ ~[i'@@](ill©lt@ ~@[i' ® .IC01 SOLID ~O®@®ITiJi)® ~[i'®©lt~©@ NEWt Automobile In surance Law by Davenpon
ll
1989
Criminal Offen ses & Def en ses in Alabama by Chlarkas. CI)I(fJrkas. & Ve/gas
· 1982 Criminal Tria l Pr actic e 2nd Ed. by Chlarkas c 1988 Criminal Trial Practi ce Form s 2nd Ed. by CllIarkas " 1988 Divorce. Alimony & Child Cu stody w / Form s 2 nd Ed. by M cCurley & DaVIS
· 1988 Evid ence by Schroeder. Hoffman & Thigpen e 1987 Equity 2nd Ed . Tilley's by H8nsfordCl1985
Law of Dam ages 2nd Ed. by Gamble 01988 Limitations of A ction s & Notic e Pr ovision s by Hoff 1) 1984
Workm en ' s Compensation by Hood, Hardy & Seed @) 1982
• Including Curre nt Supplem e nt,
jf applicable
.
BONUS OFFER Buy any 2 o f the above Iltles and receive 7 % OFF th e TOTAL RETAil PRIC E. or any 3 - 9 % OFF. or any 4 - 12 % OFF . or any 5 15 % OFF , o r any 6 - 2 0 % OFF
THE
W HARRISON COMPANY, PUBLISHERS 3 110 1:' 0"'''0 hr ~' POlio. )500 , "'McrOII. GA 3OO'I - 1~O
89 ·C3
The Alabama Lawyer
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INSIDE THIS ISSUE ------------~:-::_=_ President 's Page
................................. 132
In an interview with The Alabama L<lIvrer, Alva CJlne reflects upon his tenure as Ilrt.'sident and addn_>5ses o ngoing problems confrontln" Ihe bm of Ihls Slate.
The Relationship Between Divorce and Bankruptcy -by Herndon In~e, III ..... , . . . . . . . . . . . . . . . . . . . . . . . .
142 J
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How docs a divorce h<\ve an im",1ct \Jpon vested ri"hts under a retirement plan?
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Assessing the Legal Needs of the Poor: Building an Agenda for the 19905 - by Patricia Yeager Fuhrmeistcr .......... , .......... .
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In the second of 11 three-part seri1.'S, focus is placed upon the legal needs of the poor. President's Pagc • El<ecutlve Director', Repo rt PronteJPhl ll lp E~ tOf1 Adams, Jr. About Members. Among Flf ms . Buildinll Alaooma's Cou rthouses Ci.E O pport unities. ..
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Report
19' 192
Clmined Notices
M
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h ecutlve 01110<:00' Director of Programs
Ke~l nald
E~t<'IIt1W' .... 'I't~n! .
Membo:,~hip
T. I-I~mnr.'. CA E Keith tl. Norm~n
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Send OKklrcss eh,mgt'!; to Th~ Alabarna Lolwyer, 1',0. 80x 41 56, Mo ntgomrry, Al 3610 1. Posln);lst ~r:
D i ~l p li nary
173
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~ICoonlo!!l As,i~t.>nt
(;('11(',.1 I;Qun~1 A"i.lilnt C.",.,ml Coun",1 M5I!Llnt ~!31 Coon~1
lIobe" W. NO<II~ John A. YunfL, IV Alr~ W. l;ock\(llt I Anthony Mel ","
" M.II F~n ~uth S t,i(:l([ ~ od
Cheryl !bnkin 80nnle M.111lO1
M.1Y 1990
President's Page Interview with Alva Caine The fQllowng interview " f Alabama Stall! Oar Pr(os idcnt C li ne wM conducted by Alabama l.1wytor ooilor Robert HuU.. kct.
10 gCl this done 10 meet the deadline so I went dawr] to the farm one afternoon, got Brandy out of the pasture, washed and clipped him and look him up to rhe hily field (or the plclUre. J hiM:! always lovcd hOf5es, and especially Brandy, because I raised him from il colt right thcfl~ On the farm. I rc~il !t my uncle telling me one time that, ''There is somethins .1I)()ut the outside of tI horse thlit Is good for the Inside CJf a !llan." I guess this is why I will always love wide-open spaces :\Ild horses,
AMooma I thlnk of all th e cO\ICrs that we have had on The Lawyer: ,A,/abama lawyer the one that's drawn the most commen ts has been you on your horse. Tell me
how that came about. Ca illt~ :
I hild originally m..dc the tradi tional law offi ce picture, wearing a dark suit In a library senlng. I sclllli1is 10 Reggie who Immediately called me and sOl id thi s Just wouldrl'l dO, that I wa s an out路
door person ilnd thai I should have a picture made in an olJldoor sening. I only hi'ld twO diIYs
AL:
Now that you're three-quarters rI the way through )'0(1 ' term , in retrospec:;t, wha t do you viev.' as thc major a~~ompli s hments of your administra tionl
Cnl ne:
1 hope tha t Olle accomplishment \.',Quid be to
reu ilitc the bar in making ant...... commi tmeill to supporting the legal process. One of the great pleasures of this job Is to have the opportuni ty to meet and 'h'Ork with lawyers throughout the stale whose practice is different from my own. The Alabilm;l Stilte Bilr, like so many bars across the country, bl'Came deeply divided over the issue of tO ri reform. Thi s resulted In lawyers separating Into groull S whi ch reflected the in路 terest of their own practice with lillie thought to wh,lI mayor may not be in the greater good for society as a whole. II always d i ~turbct:1 me (I S (l 1(lwyer 10 see ou r !)rOfC5SiOn split intOpili intiff and defl'ndant, prosecutor and defense coun sel. Lilwyer5 qultl' ntiturilily hiM! their own areas of practice in w hich they have a special interest. 110000'VI:!r, as J}fofessiol1llls, we must ncvcr forget tha t we servc the Interest of society as a whole rather than the special Interest of our resl>cctillC clients, On many occasions I hall(! witncss(!d (colllinuf'Jd on page 135)
CAINE
132
May 1990
Executive Director's
Report
I don't do elf or licenses
T
he lead to this column Is Imendlld as a play on the TV commer-
dal, "I don', do windows." Every
lawyers secretary would do herself and her boss a big favor If sh(J W()\IJd issue such a declaration on or about October 1st and December 1st of each fl;!iIr concerning license> and continuing legal education, mSJ)ec1ively. You would think Ihe va St number of
secretaries were subjected 10 the MClE rC(luiremcnlslo practice law hI Alabamil. The observation is based upon thc num· ber one elCcuse we receive after we
notify thoS(! perSQns who do nOi submit their annual report or deficiency plans
10 fuUili their MCLE 12-l1our minimum requ iremen t In a timely fashion.
For sometime I havc consldcrt.>d writ· ing a column "In Praise of Secretaries"; howcycr, the number of these "lightning rods" who were blamed for dellnquen! filings this year rell(hed soch proportions I wan ted to remind our members thai your secretary cannOt nrc for you. Our reporting fomlSlire ra ther simple. EaCh lawyer is sen! his or hCr transcript with ci.lfryover credits, as well as those credi ts reported to us. One need only review this transcript, Sign It and return same to the MCLE Commission. If addiIional credits have been earned and not noted OIl the transcript, these may be added and any error notl!d thereon may be corrected, Good secretaries always make copies to backstop our postal sys tem. This reporting requiremen t 15 the responsibility of the bar member- not his
Tile Alabama Lawyer
or her secretary-no maner how efficien tly alw cllp.lbly tha t I>crson performs her responsibilities. I know many of you lely on office personnel to keep up wi th your credit hours, course names and locations; hOWever, cert Wcation of compliance Is your responsibility. Most often the secretllry is made the Hfatt person' when a delln· quency slatus is nl,)ted ,,('cr OUt second or reminder mailing. While, " I though t my secretary took carl) of that when It came in," gets over·worked at MClE time, this is not Ihe only Time the secretary is us«! as the eKcuse for an Import. ant missed deadline. license buying time (October '·31) each year Is :lnOther period in which " my secret.lry must h.. ve overlooked the nolice," Sometimes the S(.'Crel~ry is defcndt'd wi th the gallanl llhrase, " I'm sure my secretary didn't get the notice," and therefore no one is at fJ ult. Section 4012-49, Code o( Alabama, 1975 addresses this I$sut;'. I know we have aU hidden behind Our secretaries on more than one occasion, but I know I alw<lYs fcelguihy doing SQ, t shouldl No one has been blessed with II more dedicated and enduring group of fine secretaries and oominlSlraTlve assistants than I. This liS! goes back to Peggy Br:ldIcy who was Justice Merrill's devoted secreli'lfy al\d who tyrx:d 11 very green law clerk's memos for me. Then Patricia 8ryant spent the better pan of three yea~ keeping a new Air Force Judge AdvocJte from getting coun-mars'lil lll.'<l or WOr$(!.
HAMNER Mrs. Bradley and Mrs. Bry.IIlT are enjoy' Ing well-deserved retirements. Helen Freeman and the late Gr"ce Mciniosh laught me much about lawyers and particularly this bar. While Carolyn Enslen was n(!VCr my St.'Ch.!tdry, 1 know the invaluable assistance she gave judge John Scott during his service "s secretary of the Alabama State Bar and how helpful she W,15 !O me when she mer served as Chief justice Heflin's SI.'Cretary provid. ing the historical connections I often needed. When Mrs. Freeman relired, ithought my world would surely end; however, Alice 10 HendriK was proof the sun docs indeed come up the neKt day. Even though M rS. l-tendriK left to ~e rvc In the U, Governor's office and the clerk's office at the 5UI)reme COurl, she has returned to the bar liS its membership secretary. I have often won(!ere<:! If she \'oOuld have
133
done 50 10 serve a second sentence as my person.,.1 secretary. For O\ICr [en )"ears, Milr~lrcl Booni! has been my capable secretary and adminl· STraTlve assISIJr\l , She na'! Hsuffcred" long. Mrs. Boone Joined the SI,,(( originally as then· Pr~idenl Sonny Hornsby's tern. porary secrelilry: hCMiCYCr, her talents first caught my attention when she filled a tCnll>orary 1X)Sltion in it 8oYCrnm~nt 0(' flee where I performf!d my Air Force Reserve duty, Mrs. Boone Is far more Than my secrelJry. She Is nly sounding board,
my 8r..,nmarian and oftenTimes my safety valve-who also lakes didalion, As the bar has grown and our services lind rt>sponsibllities have exp.lnded. I of!l!n have hild 10 rely on another (Irsl·
elMSsecretary, Dllme Weldon. She first joined us as a co-op StudenTwhile in 11
high school secretarial science class. She nOYJ serves as Ihe execuTive assistant In
the area of progr,lms and aClivi ties. I know those of you who ~rk with her from time to time kn(Mt why we value h/.!r. All of these §!)(,clal people are In large parI to blame for my sl llI disliki ng dictating equipment (They all took-or still take-real shonhandll While I will concede the e(frciCflCY of such rn.'Vices, IOcv arc devoid of the qualities POSseSSl-'d of these wonderful Iildies who cause me to rise In dcflmse (If secretJries. I have yet to sec J dictJllng machine Ih<ll Ciln smile and lift spiri ts as well as C,l U§C me 10 reth ink a bad decision. 1 am sure each of you feels the s.. mc as I abou t your ;ecrctaries, I)aSt and PrL'SCnt. like mine. 'am sure you think yours can do everylhing. but f(:!nu:!nlber, th ey do nol have 10 do ClE or need J Ilcells(! to practi(c law. RTH r.S. It would be rem iss of me if I did nOI acknowled ge those wonderfully capable se<:retilri\:S who have scM,<1 our Alilooma St;Ue Bar presIdents. I often feel I havc two secretaries bee.luse of their Invaluable assistancl' In moving forward the work of the bar with an e(ficlenl oper.. tlon wi thin the preSidenl's firm. •
'34
Notice to Attorneys and Their Staff Your al1cmion is di rected to several I)rovlsions of the appellatc rules which wIll help in processi ng your CilSC. failure to Wlclly comoly wilh Ihese rules may result in the di~miss.ll of your casco Briefs- N umber of c opies, color of c overs, elC.: Regular appl"'als-l 0 copies. Rule ]2, "'RA I~ requires the follOWing color of covers to bc used on briefsappellan!lblue, appellL't'lrcd, intervenor or amicus curi"elgreen, reply/gray. (The fl,Jk!s do not indicate a color for the COVl'!r of rcheMlng briefs, hut whit(' is $ u~stcd .) (Certlfr ca te of ~rvict! ~hould comil ill lIame, address, phonc Ilumber and Ihlrty represented (or all serwd.) Petition for writ of ccrl ior.ui-IO caples of the petillon ,1Od ~upport ing brid. No color for covers is required, hUl If any colOred cowr is uscdl)Ct Itioncrlblue, fl'~ I)Ql\dcntlrcd . Petiti on (or writ of mandamus-IO copies of the pehtion and SUPI)Qrl lng brief. (Certificale of scrvice should cOill"in name, "cldre<is, phone number "nd jXlrly rllJ>feSenlCLI for all ~ervcd.)
l'ctition fOf p(!fmisslonto appeal10 COllies Qf Ih(' petition and supportIng brief. (Certificat(' of service should con tain name. ~ddrcss. ;lnd phone number and p.u!y represented for all
peal (If petition for permls~ion 10 appeal is granled, an additional SSO is due.) Exlension of lime for fil ing briefs on almeal: Onl' seven-day eKlel1slon of time, as j)rovided by Rule 31(d), ARA p, may be granted for th c apI>ellllnt's brief, the appellCf;!'~ brief and thl! aJ)t)Qllant's r('ply brief. Requcst s fOf eK tenSlon will be gr.lOtl-'d ~r the telephone; however. the extension mU51 be confirmed in writing to thi s o((jce, stating the ClI' .l et dJIIl your brief Is due, alld i1 copy o( Ihe con firmation lellef senl to opposing cO(In~I. For CKtenslon~, plcilSc c.. 11 Siwon MeLlin, Rebecca Norris, Dianc I)('mlls or louise livingston . Filing: PilI)C1) shilll be dcerrcd flied on the d,ly of mailing if certified, regiS/ered, or e~pre55 nwil of Ih~ Unifed 51«1,,$ Poswl Service Is u§ed. RIlle 25(a}, ARAP. Noti ce of the Iriitl c:lerk when " Imellee brief is filed: Rull;! ]l(al, ARAP re(luires thilt the appellee give notice of th e filing of appclll'C's brief to thl! clerk of the tri(ll toun. Compliance with this rule is nCCCS53ry in otdel for the t,iill clerk to kn()YI when to forNJ(d Ihe r~ord on ,1DPCal /0 the at>l>cUale court.
served) Binding Ihe briefs-Any cla~I)S, sl,,· I)IC~, or other f<ljlcncf'l used 10 bind the briefs must be covered by tapc so ,1S to 1)I"(!.,.el1t any injury 10 those hal\dling Ihl"' brif!fs. Docke t Fees: $100 Rl'gul.1f ,lppeill SO Peti tion for Writ of Certiora ri to court of ciVil illmeals (No docket fee is requilt.-'d on criminal CMs.) SO Pe/i tlon fOr Wril of M;mdamu5 SO Petition fo' Permission t(l Ap-
Second cop y of rec o rd on appeal or " tllll!nd ix: Rule 30, ARAP, r('(Julres /hal/he par· ties file either i111 appendiK or <l second copy of the record on appeal. Thi~ rule must be complied with before a case can be submill(.'C.i 10 the cour t (or a decision. II you plal1to use tilt! second copy of Ihe ,(.'COrd on apI>cal, YOII should mll~e "",lngcmcn/s with (he clerk of Ille clrcui/ court 10 photocopy Ihe record for you before /h(' Ollglnal record 0'1 .1pPf!al is sen/ /0 IlIrs of(jce. •
May 1990
President's Page
II1.I$t in the legal system Is Imperative If the process is going to work. I am proud to see Ihat AlAbaril<1 l,lW',1}rs ;;rre rededicating themsclo,cs to tht:! ta sk of s~i ng that the leg,11 process works well for all of the l)(!Ople of Alabama .
(colltinued from PIIBC 132) i{IWyCr5 from dj(fcrcnt areas of practice come IOo gether 'lnd, as dedicated professionals. seek solutions 10 problems with the objccliWl of Iry-
ing
AL:
Would time standards require legislation which would set some specific dates by which trials would have to be heidi
Caine:
No. The supreme court, through Its Inherel1t rule-making jXl'NCr, has aUlhority to promulgme rules [0 promote the administr.ltion 0 / courts. TIme standards arc goals (or case processing In the trial COOlts and are dl!Signed to provide clear and undcrst.lndable berlchmarks to measure ef路 fective case m,lnagcment In the coul1:..
AL:
Attorney discipline reri jalns ... ~urn(,>wlwt controversial topiC. Do you believe th.lt Our disdplinary procedures are accomplishing thdr goals and do they nccd to be changed!
Caine:
I think most lawycrs VI(,...... Ihe discil)linary process as it was Intended. Th,lI i ~, to l)rOlcct the public and the b:lr against those f(,'W lawyers who fait to abide by the Profession'll Rules of Conduct. This Is not an easy task. The over路 whelming majority of lawyers af(! $..'ll isfi(!(/ that the proc(!';s WOrks. The Center for Professlooal Responsibility is under the direction of Ceoc,al Robel1 Norris, who has held this poSition (Or alnlOSt tWO years. rhe har's 51il(( of four full -time lawyers receives Inclulries from lao.vyers concernIng potential conflicts which arise In their dally jlractice. The disciplinary staff welcomes the 0 1)portunity to discuss with lawyers any ploblems which they perceiYC might el(lst In a particular factual situation In an attempt to counwl with lawyers on the Rules of Professional Conduct as they might apl>ly to a question raised by a lawyer. For exampl!!, the Office of GenerJI Counsel issues in excess of 120 formall,!thics opinions ij year and delivers In excess o( 1,000 informal telephone opinions. Lawyers are encournged 10 contad the Center at any time Ihey feel unrure as to exactly how the Rules might apply to a potential conflict. I have fOUIld that the bar's disciplinary sta ff Is cager to receive quesl iOl\s frorll l:lwycn. and do Iheir utmost to help the lawyer decide I,!x;tClly how [0 resolve II conniet within the spirit and le11el of the Rules o( Pro(essional Conduc!.
reilch a conclusion which is in Ihe best inlere5t of nil citizens. I believe that if the tOri reform debate laughl the Uilf of Alltbama ilny 10
lesson. II was thai we as profcsilonals must shoulder the responsibility for our O'Nn Image. I rC3rct thaI the public could nOI witness as I
did the impJrtial ilnd dispassionate discussions by 'ifWYl!r5 Trying 10 resolve ;Ill Issue for the greater good of society. Ills my hope ilnd dre,lm thallhis coopcriltive relationship will increase In ~ars 10 come lind thllilhe Alahamil Siale B(I'
wili l ruly become unified In sl)lrit, as well
liS
(lction,
The modern practice Qf law 5uhiecls lawyers 10 l)r~5ures which we have nC'o'er known befOre. Stiltewide ptadice ol a number ollawyen places them in constant conflict wi th trial settings and ilPlleilriinCes in court. The demands placed upon Iilwycrs iHe forever increa sing. mentally, physicall y and fin ancially. I ;]111 convinced that a Strong bar wi th the objective of serving the needs of lawyers and [he legal professlQn is our beSt hope of coping with 路the realities of modern day law Ilraclicc. One of the best eKamllles of [his ren(,'WCd com. mitment to work ing together as lawyers b [he work currently being done on time st,lfldiHds on goals for the processing of cases In the volflous jurisdictions of Alabama's trial court$. " number of l;wyers aCrOSS the state h<l\C WOIked diligently with Judge Joe Phelps 01 MontgOmery and Judge Gerald lOpa,d 01 Birmingham to evalu.lte ex.lCtly how cases are bclngl)rCK.:esseci through the Ifial COUlts and help establb h n(....... proccdurC!S designed to eliminate delay. Olwlously, there is wide dlspilrlty from cl rcult to circuit In the average amount of time required to disllOSe of part cul"r Iypes of cases. It has only been through the cool>crative attitude of lawyers and iudijes througho\l! the stale that a proposed time standard proced ure has been drafted and will be presented to the supn:mc ( OUI1 for adoption. It 15 my hope that [he relation shi p ootween the bench and bar In Alabama will continue to grow so tha1the legal right s of all cltl:wns will be protccted and preserved by the legal prOCesS. Public
The Alabama Lawyer
135
AL:
Wha t is the status of the proposed discipilnary rules that are being considerl>d Uy Ihe supreme r,;vurc/
Caine:
The proposed rules of profe ssional condUCI are currently wIder submission to th e Alabama Supreme Court and a ruling is expected shortly. These ncw rules werc dr;Jflcd by th e Permanenl Code Commi ssion In an effort 10 presenl a (or· ITIal more fmnili ;,r to rtlWy.2(S MId more anune to modern day practice by recognizing multil)le I~yefs of respo nsibility in IlIrgc law firm s, compl(!x anorr\cy/cllcnl rcltltlon shil)S in corporatc sculngs, conflict problems ari sing from lawyers changing firms, IJwycrs enlering private 11mClicc and government sel'llicc, and SIXlu sal c!llployment si1ua1ions. Th e I\lrmtrlltmt COOl" Commis.Sion re<:ei\lf:d direction from Ihe Alabama Supreme Court throu gh Justice Torbert indlCilIing that Ihc prcfcrcnce of thc courl would be to adopt rules of professional conduct more in IInc with til c Amcri can Bar Associ<r ti on Mode! Rules ir\sofar as they were consi stcnt wi th and responslyc to Alilbama pmctice, Early studies by the Permanen t Code CO!'llmis510 11 illdlcated that the existing Code of Professional Responsibi/il y wa s il seriou sly flilWl.>d document, suffering from poor drdftsmnnshlp .1nd internal inr.:onsisten cies. The ABA Model Rules con sis t ImlSely of black Icttcr mandatory niles <lnd commer'ITari cs which are made a part of the rules for assiStan ce In interpretation and to gi llt! SOmcthing of a legi slative and statutory hl ~ tory 10 the various rules,
datory nine specific steps th at are to t>e considcred in setti ng ,I f(!C. Thc rule makes it Improper for an al10rncy 10 charge a dearly e~(essi'IC fl'(! . The rule requires that a lawyer communicate 10 the cllerll, preferabl y in writing, Ihe ba sis of the fcc. The rule re<luircs thaI all cont il1gl~1t fcc mill· lers be covered by a wrin en agreemenl, in· cluding the methods by which the fee Is to be determined, the percenl<lge or percentages Ih,1\ shall ilccruC to <r lawyer in the event of senle· nll~ l1t . trial or appeal, and how e~ pel1 s(! s ale to be handled. h\ addi tion, lawyers <lre prohibited frO lll charging con tingent fee 5 in domestic rclntlon mailers and criminal m'lIIers. Rl)fcrral fees arc stili permitted wi th certain stated guidellllcs. Thc Permanenl Code Commission found Ih .. 1 over SO of the 5't cli ~ci l,li nilry jurisdictiOns In the United States had both rules on compelency and rules on fee s whi ch have been In c ffe<:t for more than a dl'cildc. It Is our hope that by bringing Alabama Rules of Professlonall=onduct into h1lrmony with the maln5tr(!.lm 0' di sciplinary rules M:ross th e country. that resource <lnd rese"rch m:lIerials from other slates 1Ind juriSdiCtions could be utili zed not only by practitioncrs but also by the discil)linary staff in addr('S!ing ethical questions whi ch lawyers mrry erlCoull ter. At:
Ano ther one of the themes of your adminis tratiOrl w,1 S legal education. 0 0 you ft!e l thM our Continuing Legal EdUC1ltion Progmln is accompli shing its gwls1
Cai ne:
I bclievc the bill' S CLE Prollrams get beuer and beller l':aCh yeilr. CLE is mrr rldatory in Alab"ma . Alabama lawyt!rs arc making all exctllent effort to get Ihelr rcqulrcd courses completed each year. M andatory CLE serycs bolh thl' inWrest of the profession and the public very ....'\)11. Wc.111 kr\OW thallhe luw is an ever<hanginSilncJ C\ICIlu· tionary process, and a very effcctlve wily to remain informed is to ill1Qnd mootlngs &Ild discuss n('oW d('VCloprnents as they cvo!\IC on a daily b.:l sis. Th e CLE program re<luircl11cnts arc closely monilorlXi i.lllcJ IIPPrq...,:od by Ihe bar to insure thaI the courses offered to lawyers will be C{iucatiol1al .. nd will ilssisl them in 1heir individual practice.
AL:
As you know, there are several jud ici ~ l races Ihis spring. 00 you think lhat the bar should take a more ilctive role in spoMorlng legislation
Several new rules were implemented whi ch did not exiSt luthe old Code of Profession,ll Respon>fbiliIY. Ollt! of the ncw rules which drC'W much sludy nnd commenl Wil 5 il rvle concerning an ..norney's professional competency. Thi s rlew rul e 5\;1 te5 thill. "A lawyer shall provide competent rcpresent{ltion 10 a cllcnt. Competenl representa tion requirc s Ihe legal knowledge. skill, fairness and prepara tion I'easonilbly n(·c(!ss.lry for Ihe represcn tiltion." Without a rule on coml>Clcncy, dircctly apl)licable to egregious !>I tu<lIions, the bM wa s in the un(ortunatt;1 positl O!l of bclrlg unnble to censor or remove from offi ce an attorney who hild bl>(!n eng<rged irl gross incoml)Ctence within the professi on. Arl Olher new rule receiving much comment deals whh the fees an attorney m..,y charge for profession,,1 sCl'llices. The new rule makes mall-
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May 1990
which would allO'W for nonpmtlsan electiOn of judsesl Caine:
I definitely bellC\le that nonp.1rtlsan election of judfiC$ is something thm i$ going to take pl<lce in the future. I do not bellC\le that anyone who Is dosely wa tching the process of how judges ate curren tly ellX:too can seriously argue that a judge having to sl:.end a million dollars to be elected to tim Alabama Supreme Court Is something that Is good for the courts or for the public. The current election process tends to make the court too poli tical and distr.lcts from its i,-diclal role. Whether this is done by legislation or some other mechanism, I think that nonp.lr1isan cle<:Iion of judges and a merit selection system Is something thilt will be addressed soon In AI<1b<1ma. I do not know whether the curren! 1>oIIticai lltmosphcrl! in Alabama will permit adoption of <1 new systcm at the present time. HCMeVer, I definitely believe that in the not-toodlsti'lllt fUMe ..... Iabama judgcs will be elected on a nonpartlSiln basis.
AL:
The 10 lTA program has been In place now for sevel<ll years. Clve us an upd<1te on the Status of that.
Caine:
The IOLTA progr<lm Is one of the shining lights of Ihe Alabama State Bar. 10lTA firsl became opel'iltiooal in January 1988. To date, 60 l:lCrcent of all eligible l;myers are pa(\lcipatlng. The p.1r_ Iidpation rate 15 among the highest In Ihl;! nation among opt-out programs. Thu s far. 51,570,000 has been re(eiVl.>d from b..lnks on Interest earned on trUSI accounts maintained by .....Iabama law~rs under the IOLT..... progl'<Im. This money is ildminlstered by the Alab..1ma L<IW Foundation which has aw<lrded a t01<l1 or 5900000 in gr.lnts. In 1989, 5237,000 WolS awarded iJnd tlPproximately 56BO,000 has been aw<lrded thi s year. 10l.TA funds can be used for leg.l l aid to the poor, to hell) !>fomote administration of Justice, for Iaw-relilted educatiOn to the public and for local I(IW libr.lrlcs. Becau$(! or the b<lr's IOLTA program, for Ihe Orst time in Alabilma there now exists a source of funding for worthwhile projects d lr~ed toward improvIng the administration or justice. Programs developed by Ihe vilrlOU$ bilr commi ttees nOW can receive funding. In the llast, com路 millet' members oft en were fru str<lted In their
The Alaoilmil
L~wyer
efforts to Implcment the work of the commit1ce because of thc lack of money needed to gct the project start cd. I believe Ihat this new rt'vcnue source will result In gelling more lawycrs In.."lwxI in the real v.'Ork of the bilr becilUse now Instead of just meeting and coming up wilh new programs, funds are flV<lltablc to c,my new projects Into action. I do not think lawyers In Alab..lma fully realize the great potential and benefit of Ihe lOlTA program as it continues to grow on a yeady b<lsis.
AL:
Spetlking of fund ; n~ is there a need rOf additional funding for Ihe administrative staff here OIl Ihe state bar he<ldquarte~l
Caine:
The Alabama Stale Bar headquarters is now operating at CIII).1ciIY. Today, we are In the Silme building where I took the bar exam In 1970. There are approxlmiltely the SlIme number of people v.'Orklngln the btlr headquarters now as there were Ihen, When I began to pt3Ctice. there
137
were less than 5,000 membeD In the Alabama Stille 6"r, Now the stale bar has a membership of over 9,000 1;IW~rs. Sheer numbers mandate triM the filcilities at the state bar hcadqUilrt!!!1 be expandro. ~ have definitely outgrown our spac!!. As thl! numbl!r of lawyers admlttl!d to practicelncreas!!s, the bar also must Increa sc liS staff if the IxIr is to continue to service the needs of the legill community. As the practice of liJW lx.'Comes more complicawd, more information Is needed to be disscminalL'd 10 lawyeB. The SlOIte bar ncadqUa!leB dclinitely nt..'t"!ds 10 00 eJ!panded bOlh on terms of additional personnel and housing space. For eXJmllle, the Cen ter for Profcssional Responsibility Is not now located ,ltthe b"r headquarters. It would detinitely be (In Inlj)rovcment in the qu"lity of service to lolW~rs if the stille bar could house all of its staff lit one 100ation, thu ~ IJrovldlng dlr(.'Ct Communication on a dtlily basis. Until thi s is accompli shed, the stOlte bar will COntlnuc 10 be required 10 wo(k urlder less than satisfactory conditions.
138
AL:
Arc there sufficient funds to increase Ihe staff at the bar headquartcrs or would that requ ire some additional funding souu;;esr
Caine:
II will definitely rt.'quire additional funding. The major revenue source for the M'lIe bar is the is路 suing of I"w licenses to practicing altorneys. Of course, the statc bar has 11 budgct. It must and it does stay within that budget each year. The bar does not receive any fund s from the state that are nol gener,lIed directly by lawyers. Perh:.ps in the near future, it serious look must be "'ken at Increasing license fa'S. This, of course, will nol be a very populilr alt(!rnati~. However; recOllnizing the l.wr-increa slnll cost of ~alilries ~nd supplies, it might become neccssary to incrcase the (OSt of ,I lilw IIcensc.
AL:
When wi!! the work bellin on the addition to tilc Stille b1lr hC<ld<IUattersf
Caine:
Vk hope construdion will belli" mid-July 1990. The funding Cflml)algn Is now underw.ly. Lawyers across the state arc being urged 10 support the buUding camp.llgn with their contributio ns. The new buildIng is going to cost approximately $3 million. II will be constructed al ~ slillhtly higher elevation behind and con-
nccted to the exiSting stru cture. Also, plans are being made to renovate the old building. Wherl completed, the bm headquarte!1 bulfdlngis anticipated to have sufficient space to house all of the v,lrious departments of the slate b.u. The new building wit! offe r increased omce space "nd il much larll(!r m'->eting room. Presently the existIng facilities make It almost Impossible to Ole路 commOOiltc thc nct!ds of a meeting d the bo.lrd 01 bm commi ssior"ICrS if there Is a full attendance. The architects have anticipated In Ihe plans ad路 ditlonal space for expansion as the number of lawyers in the slate Increases. Ai:
The midwinter mccting was completed severJI months ago. \Ncr!:! you satisfied with the p;rr. tlcipationl
C,lne:
~ry well 5.1 ti sfied . The meeting wa s held in conjunCTion with the Bicemennlal celcbr~tion of the American 6ill of Right s with Justice Anthony Kennedy or the United States Supremc Court as
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Ma y 1990
our keynQte s~il ker. The program consisted of presentations by Professor Michael T1~r of the University 0( T~s School of law and Professors Dan Meador and A.E. Dick HowJrd of the UniYelStiy of Virginia law School, 'Ne hild il greilt ill1endilnce. On Frldily, we hild the midwlnttlr meeting of thl! bar, which con· sistoo of commi ttee meetings Mld section meet· Ings, I am hoping that the mldwlrHer meeting of the bar will be rein stated on a permanent baSrs. I feel that because of the ever.lncreaslng sizt' of the bar, there e)llsts a need to meet as an association more than once a year.
respective firms in an effon to instill in tlM!m the long.term value of close perSOnal rela tionships. So much of the practice of law is conducted by a handshake. A lawyer's \.YOrd mUSI be h s or her bond. I (10 nOI think that the practice of law could function successfu lly and e(ficlcntly if everything hlld to blJ redw:ed to writing. In my Judgment, It Is imperiltive that the conc(,lpt of a menior Image In our senior lawyers Is utilized to Its fullest and most valued exterll.
~cellcnt
AL:
One 0( the themes of your administration was to achiL'Yl! a relurn to professlon{llism. As a trial lawyer, do you perceive whill could be called II growing ];u: k (If civility between plaintiff and defense lawycrsl
Caine:
Un!ortunately, 1 do. When I Sttlrted prilCtiCing law In 1970, the bar wa s much smaller. My senlOl partner, Francis Hare, often \.YOuld counsel all of the young lawyers In our (jrm about how to conduct ourselves and, In essence, act as our mentor. The situation that exlSlS today is not as it was back then. law firms arc much larger with little time to develop close, personal relation· ships. When I started practice, I knew thilt the sen or p.lrtners of most defense firms and The senior pilrlners of my firm were close frlerlds, ilnd that if I did not conduct myself professional. Iy, my ~nior pi,lrtners would find out aboul it, I think one of the great problems that we face today as a bar is the lack of mentor Images ilnd role model~ Ihal young lawyers can emulille. I.a\.v firms haw grown to such large numbers and Ihe seniOr p;lrlrlCrs In lhese firms h(JVl;! such great demands placed on their time thQlthey do nOI have time to sit down and counsel young lawyers when Ihe need arises. I_ocal bar ilssociiltions havc adopted codes of professional courtesy which I think Is a step In the right direction. H~r, nothing can replace the counsel and guidance of a senior lawyer. The "Rambo" tactics 0( the late 1970s and 19805 are out there and a number of lawyers hi,l'o1'! emplO'r1!d these tactics, unfortunately becoming successful at it. I hope that the senior members of the bar will accept the responsibility of \.YOrklng with younger lawyers both inside and outside their
The Alabama Lalo'oyer
AL:
How do we alter that atmosphercl
Caine:
Profec;sionaUsm is IndN'(j m(lre than just abiding by a series of rules. It Is and always has been an individual Slate of mind. Ilhink lawyers simply haYC to make up their minds that cenaln con· duct will not be 10Ier-\1ed, When II l aw~r doc'S not conduct hlmsell properly alld professlon"l. Iy, members of the bill' should, in iI very con· slructl'o1'! arId professional Wiry, make their feelings known. It may be necess.lry to remind our fellow lawyers that their conduct Is being watched not just by other lawyers but by the public at larse. lawyers must nOI forget that on· Iy lawyers control their own pubUc Image and that Image Is as defined by Ihe public. E-..!rylhing we do and say and our ilctions towolfd one an· other arc picked up by Ihe p(.bllc. Impressions of the leg.11 profession for the most part are formed IJ,I the public In the w;r.; we conduct our business one with the other. The deep ilnd abiding personal respect which one lawyer holds for his fellow lawyer has always been Ihe foundation on which the practice of law Is conducted on a daily basis. I bellC'lC Ihat lawycrs throughout the stale are conscious of their public image and are dedicilling Ihemselves to enhancing that Image by their words ilnd deeds.
AL:
Give us a preview of whi,ll will be happening ill Ihe Sliltc bar conven tion this summer,
Caine:
We arc excited about the plans for our annual meeting to be held In Mobile luly 19·21. The Mobile Bar Iradltionally has been a grand host, sponSOl'ing many social and cultural ~rUs. The meeting will begin Thursday morning. July 19, with section ~ings, and at noon we will h3\le our Bench and Bar luncheon, Dean John Reed will be our guest speilker ilt the IUllChcon. Dean Rood enjoys a national rcl)ulation as an out·
139
standing Speaker and lesal scholar. This year ~ anticipale a large attendance by Alabama Judges. The Judges will be mcctlng earlier in the ~k atlhclr own Judicial conference at Perdido Bay and have been Invited and encouraged to come \0 Mobile to particl lmle In Ihe ,mnUill mootlr\8 of the st;lIe bar. T.1 sk Force 01\ Bel\ch and Bar Relations Committee has put together an outstanding program, to follow the luncheon, to address bench and 1n1r I)roblems wilh the hope that through Ihis discussion rclillions can be imprtJYe(l throughou t the sta te. It Is our hope Ihat by focusing on and discussIns bench and bar relations the various Judicial districts In the sliIle, including federal courts, can g~ln an Increased aw.!rcness of one another's problems and coml.! tOio.\Clher to seck solutions for the greater good of every citizen in Alabama. It Is ~lml)l y not good enough to h,we some circuits currontin their c.l seload while others <1m straddled with a huge backlog of litigation. Equal access to the courts Is imper,Hive if the administration of justice is to succeed as Intended. Thursday evening will fea ture Ill(! traditional co<;luait rKeplion held 011 Tulip Point at the
Grand HOIel in Point Clear. The Friday program will consi~t of section meetings and programs offering continuing legal education. Friday night, the bar will sponsor an old fa shioned polillcal rJlly. Car\dldJ tes fOf statewide offices who hJVC rt'cel\1.'d their Imrty's nomlnllllons will be Invited to llllend and piJrticip'.lte in wha t Is antlciplrtcd 10 be a fun evening of fellO'NShlp and politiCS. The Saturday program will conclude wllh the prt.'senliltion of a major address bv a natiooal p0litical figure, as well as the regular business meeting Ihe bar, We are looking fOlWard co a large registration of lawyers and judges throughout the stiJte for what we hope to be a most informative and entertaining annual meeting.
or
AL:
Arc you looking {OlWilrd to thc cnd of your terml
Caine:
Well, I do in Ihe sense Ihlll If I don't get bJck to Birmingham I Willl>fobably be ou t of il job. II has been a great pleasure and e~pcrlence for me to serve JS bar president this year. This exl>erience has (!ffordcd me the opportunity to mcct mJny new lawyers across the state and sh,lrc with them the problems which Ihey face In their particular areas of practice. It has caused me to realize Just h(MI narra.v the neld n which I practi ce reany is. The e~perien ce has glvcn me n new ilppredalion for the vJlue of a strong stille bar. I encourage every lawyer to give some of his or her time to the 'NOrk of the stale bar. I bcliLw that only by p<lr1idp<lling l;iln we rcally understand the needs of our profession. There Is a place for every lawyer in Alabama to p.'rt ici pa~e In the wOfk of the st,lIe bar. I kn(MI that you will find ~ur Clt:pcricnce rewarding lind fulfilling as .1 professional . I am grillcfulto th e lawyers of Ihls stale for Ihe opportunity to serve this year. We lire I)rivllegf.:d to have such an oulstanding lawycr as Harold Albrlnon of Andalu siilto SCM! as ~ur Ilfcslden t next yeilr. I knQY.I that thC' members of the bar will give him the SUllpOrt and encouragement which you gave 10 me during my year n office, 1beli~ now mo~ than ever Wore that the call¡ Ing to become a lawyer is divine and that the 'NOrk which wc do as lawyers is essen tial if our democratic (orm of goycrnment Is to survive and prosper, â&#x20AC;˘
140
May 1990
Profile
Phillip Exton Adams, Jr. President-elect, Alabama State Bar 1990-91 Pur~lI;l!11 to the Ali1bamil Slill~' 8M'S
rul('~ !\0\.1.'rnin8 the ch.-'CTlon 01 ,hl' pJl'si· dcnt-cl('Ct, Ih(> foliawin!\ biogr.,phi(".ll ske\(h is provided of Phll!!l) Exton
1\(111111'>, Jr., olOpelika, AI,IIl.lnM.
Ad'l m~
i~
til(' <.Ole qualifying candid.lle for Iht! po~ltion of president·elcci 01 thl' A1.)b,IOl.I St.l W Bar for ,h(' 1990·91 tcrm,
Educallon ,lOd edrly years Phillip L /Id'lm~, Jr., Wol~ born In Alex·
;Jndcr City, AlllbdlTl,l, Dl,.·(:{·mlwr 25, 1943. l ie att ended the I)ublie
sc hool~
of
Alex.lndf'r City .:md grilduillcd (rolll Auburn Uni\o1:>ro;ity in 1965. Ill' rl'C{'i\ll'd hi~ I.IW dCt!f('(' from the Univer~lly of Ala-
b.lma School ot' I,l'>v in 1968 Jnd WJ~ ad· mined 10 the STill(> h.11 ,11<1[ y('Jr, He <;{'rvt.'<l,l~ l.lW d(·rk 10 A\<.OCiate Jus-
tice I\:IIMrll Merrill of lhl.' AI.lh.In1,l Suo prcnw COurl from 19611-09 ,mel h,l~ I~n with Ill{' Opcllk.l firm of W.tlkl·r, t lill, Adams, Umbach & Me.ldO'>V't sineI.' Ilwn.
memlwr of lhl' Supf('ml' COnmlll1l't.>from 19B&-89; dnd (lil the 1.>(liloriJI 1)Q.1f(1 01 Till' '\/.1/),lIun L.IWYi'f from 1982-87.
'985-89;
,I
8M service .md dctivities Acl,ml~ o,cJ'\ll'(1 a~ prt'~id('nt of tl1(- lee County BM Awxiilli()n in 1971 ;md i, a member of !hl! Anwriran UM A,,'iO-
(ourt li.w.on
cialion, A~ a SI.lle b..lr comm i ~"lor1l'r 111' ha~ IX'Cn on the bo.ud ~Inct' 19111 ti e h.l' I}('('n .1 nl('mbcr o( the MClE Comnw.-
Othe r luofession.'II .lml civic JCllvities Ad,IIll' .11"0 hil~ ,('(\'1.'(1 J" .1 munidpal jud!1l' ior tlw City of OI)t'1i~.l ,int(' 1976. II{' i~.1 member of thl' Hf'ol I'fl·"I)'{1('ri. drl Church, !Ill' Opl..'lIk.1 Kiw,mj, Club ,llld Ihe City BOJrd of Dlfl'Ctor, 01 Coloni.ll B.lnk in OjX'llkJ. Ill' I., 1l1.lrrh..'tl to the forn1l'r Chri, Akin 01 lu,kc~ec, AlailamJ, al1(1 111(''1' h,lW two <,Qn~, lo~ h , 11, .1nd Kirk, te·1l •
~ion ~incc
1984
(dl.1irpt~Mn
1967-69); a
ml.'mlx·r of Di'>("il>linary 1',)11('1 V (rom 1983-87 (dlolirpe.r<,on 198·1·87); ,1 mem· ber of Ihe Obdplinilry COll1mi~~lon ~ince 1987 (<.ihll rpcMn 198B-pre'{'nt); ,1 m('m· ber of lhe hccutivc C0l11n1l111'(' irom
The Alabama Lawyer
141
The Relationship Betweer
142
Ma y 1990
Divorce and Bankruptcy maintcn;mce, or support, unless liability is actually in the nature of alimpny, m<1lnten<1nce or Support.
by H£'rndon InKe, III
~uch
The relationship OOtwCC!rl divorce and
bimkrul>lcy has been largely ignort.'d by the divorce as \.WII as rhe bankruptcy J)r1lcritioncr. Since the number of ma rrla gos ending in divorce 1IS vvell as tho number of petSOnill bJnkruptcy peTitions hil\lC drama tically incrca<;{.'CI over the IhiSI ~ra l yeMS, thi s rcla r ion~hip will be gradually recelvlns morc ;menrion. Also. Ih~ S"nkruptcy Reform Act of 1976 enlarged rhe pollmUnl conflicts bcl"""l'en rhe debtor and his former spouse by alio.ving li1e djsch~rge of obligations be-
tWC(!n Such l>artics which were prcylousIy sacrosanct from discharge, There Is
hope, howcYCr, since there is no statute of timi talions (or bringing an action 10 de termine non-di5Chargeablllty of a d i·
vorce-related SUPPOfI obligation.' This ouiline will report on the maior COrlfliclS between divorce and bllnkrupt-
cy 1aY.'S.
Historical background Prior to sta tutory enactment of bank· ruptcy laM, the non-dischargeability of family support oblig.11ions WJS bOIse<! on rhe theory that rhe obJig<ltion ro support a spouse or chad was nol a debt and that only a debt could be discharged. HCl'WC\ler stran ge, the Bankruptcy Act of 1898 did not expressly exeep' from discharge alimony, rllalntenarlce or Support of a bankrul>l's wife or children. The United States Supreme Court quickly cured l Ihis de'Yiation from the common law by finding that debts arising out of a husbaod's nalural duty to support his wife 3nd children was 1101 dischargeable under the Act. Section 523 of the I)(esent BankruPfCY Code Is substantially similar to the 1901 amendments to the original Acl.
Bankruptcy determination of non· dlschargeabi lilY It should first be Slated that the deter· rniMtion of di5Ch:!f8e:!bility of an ali~ ny, maintenance or 5um)()rt obligation is a mallcr of federal r:!ther th,m State 1(lW.J This may c~ plain why most divorce prJC' tltloners arc USUJlly unfamiliM with the relalionshlp between dlllOrc!! and bankruptcy. As Is e~pected , the various bankruptr.y courts are split In their view on the dlschar!!eability of support oblig;l\lons set by a divorce judgment. Th majority view Is to ascertain the Intent of lhe par· ties and the divorce trial jool\e by consulling the SC!:ulement agreement or diyoree judgment as well as the olher surrounding eircumslilnces.• The minority vi(.'W hilS been to give primary consid· eratlon to the form of the obllg;uion by eoml)Jring e:u:;h Individual obligation wilh the cnaraeteri Slies of local t;,M' as evidenced by the divorce Judgment Uself,' Even bankruptcy trial judges with-
Statutory a uthorit y Eteven U.S.C. 52)(a)(5) states: (a) il disch,uge under secti on 727...of thi s Ti tle docs not discharge an in· dividual debtor from ;my debt (5) to a spouse, former SI)()U!itl or
child o( the debtor (or alimony to, malntenarl Cc for, or Support of Sl)()use or child, In connection with a separation agreement, divorce d(."Crce or other order of a court of rccord or property sett lemenr ilgrccment, but nOI to the ex· tent th3t •
Herndon InBC, III, 1$ a graciuale of Ihe Un;vcrsilY of Ihe Soulh and Cum berland School of Law and is In solo Wilelice in Mobile. InBe Is 8 Fellow of the American Academy of Mil/f;monlal Lawycr$.
(B) such debt includes a liabili· ty designated as alimony,
The A/ab.Jma Lawyer
143
charactcrl.wd a~ support, thll t is. whether it is in Ihe nature of sup. port. The l angu~se does not su g· gest a precise inquiry Into the financial circumstances to deter. mine precise ICVI'!ls of nl.oo ()r Support; nor docs the statutory language contemplllte an ongoin!:! assessment of need as clr· c\!ms t[lnces change.
in AI(lb<lm(l ilnd wi thin the Ind ividual districts are split in their view on this Issue, Therefore, the domesti c relations p racti tioner should btl iiware of both vjews to plan accordingly. The Elcwll\h Circuli Court of Appeal s has l)roYided con trolling au thority In th i~ circui t In In re Harrel/, supra, at 907, but l'\ICn this has not clearly adopted the maJority vil.'W:
Thi s Includes the U!e of state low to provide at least 11 ba sic guide for developin!:! it f~>defijl standaro .• Reference to state law Is also necessarf betause there is no federtll common I;'MI of domestic rela· tlons and becaure attorneys generally d r,] ft divorce agreements to express thC! parties' intent in tCrm s of state divorce l.JWl Him-ell further provided thillihe bank· rupTCY trial judge should not duplleMe the functions of the slate domestic relatiOllS COurt ond shQuld Innucnce the state domestic relations Issues "in the most limited manner possi ble." This "simple Inquiry" contemplated in Hllrrell, dcciding whether a p;lrtlcular dlvoreNela ted support obligation Is actually in the nature of alimony, malntella!lCe or support, or actually a property settlemtint, according to the federal Jaws, is usually not Simple .ince it ca n only be lX!rformed on a case-by-case basis.' In Ix:rforming thi s c~ s~by<ilse n:vif.M'. bankrupTCY trlalludges have most often considered: (I) the label s attached to the obliSiltions; (2) the term s of the agreement or d ivorce; (3) the locaTion ()f the obliKa tions in the agreement o· dt.'('ret!; (4) whether there Is a separate division of property;
The statutory ltmguage suggests a simple inquiry as to whether the obligation call legitimately be
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(a) wh(l\her the intent of the state court or parties was to create a sup!}Ort obligation, (b) whether the support provision has
(c) whether the amount of SUPI)()rt Is so cxcessive as to be unreasonable under tradilional concepts of support, and finillly,
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As the federal common law on this issuc develops o ther con sldef<ltlo!lS arc added, but from all thi s the bankruptcy trial cOlm nCt.>d only conclude:
the ac tual effec t of providing nccesSflry support,
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(S) whether the former spouse of the debtor wa s shown, at the time of the divorce, 10 have suffered In the job market or been otherwise d isadv,ln· taged because of a dependent posl· tion held In the ma rriage; (6) t h~ economic disparity OOt'lll'OOn the parties; (7) whether the ob1ig,ltlon termina tC!S on the death or remarriage of the recipient spouse; (6) whether the obligation terminates when dependent children reach the age of m~jority; (9) whether the debtor's fo rmer spouse relinqui shes rish ts and property In ret urn for t h~ ob ligation; (10) whether the debts were Incurred for the living expenses of the former spouse; (11) whether the debt is enforteable I:fto contempt; (12) the relatil,(! incomes of the part ies; (13) the len!:!th of the marriilge; (1 4) the number and ages of children; (IS) the amoun t of obliga tion payable In installments over a substa!l tial per· lod of time; (16) whether the obligation Is payable in installments O'v'er a substantial I>criod of time; (17) the parties' levels of t."(IlIca ti(m; (18) the probable na>d of future SUi>!)Qrt; (19) the age alld health of the parties; atld (20) the property brough t Into the marriage by each party.
Ope li ka. AI. 36803
(2 05) 749-0078
(d) if the amount of suPPOrt is unreasonable, haw much of It should be characterb:cd as nO!I-(!lschargeable for purposes of fedetal bankruptcy law.'
May 1990
The bankrllptcy trial cour t's appropriate "simple inquiry" on divorcerelated support obligations therefore must go beyond the separation agreemen! or divorce judgmelll itself, hence the majority view. This OOl\kruptcy Inquiry Is simply to determine the undCfIy-
Ins purJ)osc of the dcbt, i.e., whether the debt was In ncu of the Ihlymenl of and therefOre In the nature of alimony, maintcn tmce or support or W,lS only a me,ms of dividing the properly of the
parties. II should be remembered that where cases are either clo~ or hiHd, the bankruptcy trial courtS tend 10 find divorce-
related sUPI)Qr' o bligations non-dischargeable'o even though In b,mktuptcy gencf1IlIy, aU debts are assumed dis. chargeable unless it is proven that the obligation under consideration Is speclf. Ica lly within the non·dischargeable class as actually in the nature of alimony, m3intenancc or support." Therciore, 3S the support obllg.1lions related to the milrriage arc assumed di~hargeable unless proven to be alimony, maintenance or support, wi th the proper judicial Inquiry, close calls will be found non-dlschalgeable. Marital debts The most commonly encountered issue on marital debts Is when the husb.1nd Is orderl-'d in the divorce decree, whether following <In unconteSted or contested divorce, 10 pay certain m3rilal debts and then he files a pelition fOf discharge under Chtlpter 7 in bankrupt-
cy, If no Issue Is raised at the b.1nkruplCY court as to the non-dlschargeability of these marital debts, such debts are assumed dischargeable as to the hus. band, who i5 the bankruptcy petitioner, and the third party creditor there3fter pursues collection of the debt (rom the bilnkruplCY J>Clillone(s fOrmer wife, It 15 hoped Ihat OIl first Ilo:lce of her former husbillld's bankruptcy, she seeks leg.11 advice, If the bankruplcy trial court Is called upon 10 determine th ese issues of nondlschargeability of di\.'Orce-relatcd su~ IXHt obligations, the th ird party cred· Itor, uSu.llly a oonk or othl" St."Curcd crt.-'ditor, who was not a party to the divorce action, and therefore not colla terally estopped from Pll(5uing the claim ag.1lnst the former wife, must be dealt with, The bankruptcy practitioner for a bankruptcy debtor should recommend scvcral altcrna tlvt.'S to encourage Iht' 1J<.1nktllptcy Irllll judge to order Ihe divorcc-relatcd support obllgatiOllS dischargellble, He can present evidence and argue to the bankruptcy trial judge thaI the structurIng of the marital debts by assigning responsibility to pay credit card accountS was merely property settlement and nOI 5upport' ~ he can present evidence and argue that the wife of a childless mar· riase WJlvcd alimony, divided debts and agreed to hold the husband hllrmlcss on speCi fi c debts, so such debt allocation could not have been fOI her malntelwnce or support ' ~ or thilt the former husoond's obligation to pay the debts did nOI terminate upon the only minor child's fetlching majority, 50 such obligation
couid not have been for the maintenance aoo support of the children,'" The debt· or can also argue thaI if the divorcerelated debts all! found to be incurred to purchase or sUI>I)()rt IU~Ufies, and not ne<:essities, and Ihat sine!:! the wife waiV!!d alimony, Ihe bankruptcy debtor's obligation to 1><1Y th ese debls could not have bet!n for her SUPl)Or1." If the b,mkruptcy debtor can therefore pr~ the provisions In a dll'Qrcc decree merely divide assets or liabilities or are for luxuriC$. such divorce-related obligation is dischargeilble.1I likewise, if the di· vorce decree includes the ptOOJision that a spouse hold the other harmless for marital debts, It is more likely dischll'llCable, exce,)t whet\ Incurred for PI'L"-di..cfCC necessities.I? On the contrary, If the responsibility for the payment of Ihose milritaillabilitics or trtC proviSion to hold the other spouse h~rm lcss from certilln marital debtS Clln be proven 10 be "i n the nature or alimony, maintenance Of sUI>POrt:' then they will be found nondischargeable,1t
Alimony-in-gross or periodic alimony The allowance of alimony upon srant· ing of a divorce Is provided by Statute in Alllbilma,19 This allowance of alimony may be granted 10 the spouse III either a l)Cri()(llc or a Illmp sum fashion and If gramed In a lump sum fashion, It may be p;lid In Instalim<!nts if the tOlill amount owt>d Is fixc(j.'o Thereforc, installment IAlYments of alimoov-in-grOSs may resemble payments of periodic alimony bUI in
tOb
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bankruptcy tney are very different.
The purpo$e of awarding periodic ali· mony Is to provide (or the current and
continuous SuPl>orl of the spouse while
the award of alimony.ln.gross 15 a lump sum which represents Ihc presen! villue
of Ihc spouse's m;lfilal righ ts which art! being terminilted by thc divorce.)' The former Is for "maintenance and support"
and Ihe lauer Is not. The term "a l lmony.in.gross" is synonymous with a property senlement,n Alld alimony-In'gross. as property sculcmcnl, is dischargcl1blc in bankruptcy as 11 15 not a debt to a former spouse Ii
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(or alimony 10, maintenance for, Or ~up port of such spouse, r.lthcr It Is division of Ihe marital properly, Thercl'ore, lhe bankruptcy lrial Judse muSI determine if Ihe con tesled provision of the divorce judgment is acw,llly "a limony to, m"lnccnance for, or Support of such spouse" or " in the n;Uure of alimony, maintcmmce or support." For an award to constltutc alimony-Ingross It muSt be certain wllh respect 10 both amount and timc of payment and Ihe right to It must be vested .md not sublect 10 modificalio n,JJ This disTincl ion between l)Criod ic alimony o r "Umony-In-gross and property settlement is ohen found In the Mate law cont(>X! where One party seeks modiflrntion of [he allmonv award due to a change In clrcumsta1ceS. This has often been IIl igl"ltOO, .-md fortuna tely, Alilbamil has developed a large body of case law Interpreting thi s d lStirlClion,1' These state divorce court C.lS{.'S ca n assist the bankruptcy co urt In resolving the d ischargeab lllty issues,
Judgments for ""orney fees Though this too Is str;l!1ge, the determinat ion of whether ~ p..lr1icular diVOrtere llltcd obligation to p,ly coun~ 1 fees for services rendered 10 Ihe nondebtor former spouse was In the nalure of alimony, maintenance or supper! Is slrlclly a matter of federall~, Since an award of counsel fees may be essemlal to the nondebtor spouse's ability to commence or delend a marital ilClion o r to collect arrears In support and therefore may be deemed a "necess lt)~' which the b:lnkruptcy debtor was obllgaled [0 provide under his duty of SOPi>orl from the divorce, bankruptcy courts generally have treated counsel fees as being non-dis-
chargeable as long as they are found to be In lhe nature of alimofl':', maintenance and SUI)port.H If the banhUI)tcy debtor C.ln l)rQYC the subject al1orn{.'Y koes were Incurf'L'Cl by the nondebtor spouse to collect properly settlemen t, ilnd not 10 collect alimony, maintenance or support, Then such attorney fees are dischargeilble in bankruptcy,n Following a millOfity ViM, some b.lnkruplCY trialjudgru; have found a diVOrcerelated Judgment to pay counsel fees d ischargeable, even when the al10rncy Ices were 10 collect alimony, since the j udgment was to be I).}id directly to Ihe aTtorney r<lt her than 10 th e spouse, following [he theory that Ihc judgment was to the "wl1)r1g p<¥.'e," Similarly, if the bankru ptcy Irla l Judge ntds ,hat the 0bligation 10 pay counsel Ices was merely ,111 assignment a claim, fo llowlnglhe theory Ihallt is atl "assigned claim" then il lliso will be discharge~ble.u Seclion 523(a)(5) d oes not exclud e from d ischarge those claims payable to other than 3 spouse, fo rmer spouse or child of the debtor nor assigned claims.
or
Practical suggestions Consideri ng the above, the domestic relation s practitioner shou ld li tigate arId draft all se ttlement agreements or judgments with b;lnkruJIICY in mind, Whether Ihe oonkrUI)ICY dcbtor spou se was reprcscntt.'tI i1y an illlorney al Ihe time of setTlement or In a lu lly contested d ivorce trial , all scU!emen t tJ8f(.<emen ts <lnel d ivorce judgments are subjc(TIO r(.... vicw and there is nothing the d ivorce pr3C!WOner can do In stale court at the l ime Ihe divorte decree is entered to ensure his client thai such decree will CSC.ll)C r(.'View In Ihl;! ~nl of bankrvplcy," A, Specific lilnguilge in sellicment agreement o r diV(lrce judgment If the b.lnkruptcy trial judge follows the majority view on non-dlschargcabillty and looks to Ihe substance, nOl form, of the divorce agrCenlcnt 01 JudgmenT, he must makc 1'1 determination whether the panics or dlvorte trial judge intended 10 crea tc a non-disch:;lfgellblc debt, whether the p;aymenl of the subJcct debt was for the payment of necessitiC! of the nondebtOr spouse, and whcther the amount of such p~yment was rcasonllble,» If the b.1nkfuptcy trial judge
May 1990
follows Ihe minorily view and looks to the form of the divorce decree only, Ihe four corners of such decree must clearly reflect the parties' or judge's intention and findings. Therefore, the divorce practitioner should dr<tft all settlement agreementS and judgments specifically Slating that the oblig:ations to pay periodic alimony Is "as maintenance and ~ upport ," which marital debts are lor the payment of necessities and therefore "as mainten,lnce ;md support" and which aro (or paymcot of luxuries or property settlement, and thai the oblig.11ion to pay the spouse's counsel fees is for her "m,l intenancc and support." This specifici ty wi ll assist the bankruptcy Irlal JLJdge In the e'o'enl of a bankruptcy rcvl('W. If the sett lement agreemcot or di vorce Judgment is one Ihat docs not prO'llde for payment of alimony or iI the Iwtles agree thai each walvt.>S any claim 10 alimony, the paragraphs pn::widing (or the l>ayment of child suppon, the debts of the marriage or al· torney f~ should be Included in the divorce Judgment prt.l (ooi ngthe p<l ragr,l ph where the l);lfIles walv<:! any " furth er" claim to alimony. The placement of such proYisions in a settlement agreement or divorce jl.ldgment may be determinative. tn a sctt lement agreement where one spouse intends to pr()\lide periodic main· tennnce arId support or the paymel1l of marital debts as H,l llmoll'(' for income tax l)Urposes, the divorce praclitiooer CM Include additional ~lcts In the testimony depoSition that it is the Intent of Ihe parti~ to CrE!;r!e a maintenance and support obligation, that the P<1Yment of such all· mony, the marital debts or attorney fees is In payment of the "ne<;cssity" of the recipient spouse and the amount of such payment is "reasonabJe.~ These addi· tlonal factof5 can be used to pl'OV(! the "alimony" nalure of such obt!gatlons for Income ta x and bankruptcy di schargeability purposes.
B. Slate diw>rce court determinalion
Q' non-dischargeilblllty
Stille courts have concurren1 Jurisdiction with the b.lnkruptcy courts to determine th~ dischargeability of a divorcerela ted suppon OOligallon;)O the state court must make this determination by applying the federal standard s." Therefore, It has generally been recommended that the divorce practitioner The Alabama Lawver
who oblained the Initial awdrd of support relurn to the SI<lte divorce court for a decision on the non-dischargeabi1lty of thar St1rl\C obligation of support. The state court which Initially entered the divorce judgment directing the support to be paid by the now bankruptcy debtor may be more attuned to Ihe needs of the nondebtOr former spouse and more likely 10 uphold the terms of Its own decree. Practicall y, wherl the nondebtor former spouse receives nmlce of her former husb:tnd'S fi ling of the bankruptcy petition and of the debtor former spouse's ancrop! to havc her support obllStltiOIl ordered dischargeable, the nOlldebtor Sl)/)USC should Immediately me a motion in stille divorce court for a dclCrmlntltion, by the application of the federal standard s, of the dischargeability of the support obligation. Both bankruptcy rules and the doctrine of collater.rl estoppel require that such a judgment In st.1le I;:ourt be adopted by the oonkrUI)tcy coun and accepted as conclusive on Ihe issue of disclwgeabl1l ty of the debt.u Though this Is seldom done, there is clear legal
authorityll and, properly presented, the divorce court should be a more f<M:)rable ballieground. In the event both the state divorce court and the federal b,mkrUI)tcy court are petitionee! to det rmille the dischargeabillty 01 a di...,rce-related SUl>port obligation, It Is IIkcly that lhe fif5t court to 00 "pi:titioned" will be the one which decides the l;:asc,JoI though Bankruptcy Rule 4007 5t,I\(.'5 that if the state dlo,oorte coun makes ils determination prior to any bankruptcy COUrt rullns. the Slate di· vorce covrt's judgment thereon is sum· d ent to dispose of the issue.
C. Additional proof At the trial of a C()(l l~ ted divorce, care should be taken that the record Indude tC!stimony that the marital debts were incurred fOr the support or the wife, that the dcbt s were incu rred for her necc§sltlcs, that the (!ebts are reasonable, that the wife Is unable to repay such debts, and that the husband's obligation to pay those debts Is In the nature 01 support and maintenance of the wife. Thi s
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147
additional proof in addition to the stan· dard testimony regarding "income of the p.1rties.~ "ne«lH and Hability to contribute to th;!t need" may be cri tical In the event a bilnkrul'tcy trial judge 15 Imef called upon to determine non-dlschMgcability.
O. Addilional lindings of fad and ( onclu sions of law The divorce practitioner may consider asklnS lhe divorce trial Judge 10 make ad· dilional flndlngso( f,lCt and conclusions of low In the final decrl'C, whether the divorce judgment is entered follOWing an uncontested divorce scttlement, In which case these additional findings III faCt and conclusions of law are merely voluntary, or follOWing a hli~ted divorce action, where the additional findings of fact Jnd conclusions of law lire entered by the di· '.(lrce Irial Judgc In <lccordnnce with Rulc 52, Alabama RL.lcs of Civil Procedure. SUlmort, the oblig-llion to pay marit'll debts and the obligation to pay the atlorney fees should be covered In these finding!. and OOI'Iciusions. Carl' should be taken to prO\le the support Is for
necess1t1es. nol IUKtKles, and not property settlement. These findings of ~lCI should address the same four-part test:" (a) whether It was the intent of the slaw court (in the event of a con· tested divorce) or the parties (in the eYen! of an uncontested divorce agreement) to create a support oblig.,tion; (b) whether the S~lpport division has the aClUal effect of I)rovldlng necessary support; (e) whether the amount of suppor! Is so eKeessive as 10 be unre,l· !to()OabJe under tracitional concepts of SUPllOrt; and fnally, (d) if the amount III support Is unreOlsonable, how much of it should be characterized as nOll-dischargcablc for I)Urposcs of (eder,,1 bankruptcy law. likewise, Ihe conclusions of law should address this ~me four-p.lft te~t . The former wife's bankruptcy counsel can aJlege additional reason s to find the
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ManchUlcr Prey. P.o. 60x 550103.
6Irmln8h~m.
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CRI!DtTCARD ..
AL lUQ5
divorce-related obligations non-dls· chaf~ablc, e.g. f.!lse pretenses, false representations, actual fr .. ud, use of f.. lse writings, larceny, willful and malicious injury by the debtor 10 the former spouse or her property, failure 10 l>:.ly" governmental fine or penally, failure to pay an eduCational loan m"dc, insured or guaranteed by a 80\1.!rnmental unit or non· profit Institution. a debt on a judgment of liability In a motor vchicltl collision Involving Intoxlcal;on, etc." Additional proof in the uncontcsted diVOrce testimony deposition or allhe contested divorce trial an(l addi tional findings of fact and Conclusions of law also should address these Other exclusions 10 bJnkruptcy dlschargeabil,ty. E. Contempl WMS The fmng of II bankruptcy pcllt/on of· ten Is preceded by or immedIately follcrwOO by a conleml)1 action in slate dl\OfCe court for failure to IliIY an oblig;Jtion croated under a (llvo«e decree.
It Ciln be argued that a post·bankruptcy petition contempt motion flied In Mate courl mlly violaTe the general automatic stilY of section 362 of the BankrupTCY COO(', Ihough iTcan also be afgued that the aUlomatlc stay does nOI apply to an obligation determined to be alimony, maintenance and support under subsec. tion 5, which is specific.lly exempted under sectIon 362. Nevertheless, it 15 recommended Ihal .. detcrmlnntlon of the nillure of the dlVOrCCoreiated SUI)llOt! obligation be made prior to Ihe filing of an action, or before proceeding further In an action already flied, In stale court to enforce the obligaTlor6 under a di· vorce decree or settlement a8rccmentP The former spouse who flies a POSIpelil ion motion in state court or COntinues 10 prosecute a pfl!-pelition en· forcement mOllon without a dclermlnltHon of non-dischargcablilly In bankrupt. cy or In the state divorce COUll is at least at risk whether or not the obligation is later determined to be a dischargeilble one.lf The b.lnkruptcy trial CQlJrt will nol hesi tate 10 fine violators of S(.'Clion 362 Itfld aw,1rd att orn<.'Y'S fL't!s 10 a deblor for his defense of ~ uch aClion.11
The divorce practl tloner representing Ihe bankrupiCY debto(s former spouse is advised to file a stilte divorce court petition 10 determillC non-<!ischa'lleilbitity, as
M,W 1990
nOtC!d in subpJlagrapn B.. .-.boYc, or a motion for relief from Ine automatic Stay'"' In bankruptcy court immediately sccklngthe fight 10 procCl:.'(j witn Inc col· lectlon of the dl'lOrcc·rclatcd SUPPOr1 obligation, imrncdlntely upon the obligor former spouse fUing his ,>Clition in bankruptcy li5lingthe support obllga. tion as II dischalgeable debt and await a decision on non-dischargcability before proceeding with the Slate di'lOrce con· tempt motion. likewise, the di-,Qrcp, pl'ilCtitioner should advise the di'lOrce-tl!latoo support payor to con sult with his b'lnkrUI)tcy counsel to consider filing an adversary proceeding in bJnkruptcy seeking the vetermination Ihat such divorce-related obli801110n Is dischalgeable. The divorce pr;lctlTioner of Ihe former spouse payor should consider notifying the former spouse Pilyee's di· 'IOree cOu llsel of the IJO§sible sanction s for violating the automatic stJy In bank· ruptcy to prevenl the former spouse I>a')'ce from laking any fU r1hcr action in slate COUlt during the pendency of Ihe diseharseability adversary proceeding in bankruptcy court.
F. Mntion to incrcase SUI)port If the former spouse P<l)'Cc negJe(t(.>d to seek legal ad~ice at the time of her former husb.1nd's I>.:inkruptcy, Or if the b.lnkruptcy courl found certain divorcerelated Obligations discharged, or if it is the appfOl)rlate Time otherwi se to s("'ek an increa se In iIlimony or child support, the divorce practltlonflr should finilily consider returning to the state divorce court to increase Ihe amount of rnaineen"nce and support to the former 5llOu!:e or children a~ a result of changL'CI circumst.lnces resulting from the b;lOkruptcy court t:!ntcring the order tn al certain sup· 1>OIt obligations of the divorce judgment wcre discharged." This will reOI)Cn the SUl}llOrt obligations but In some cases is the only available relief. Conclusion The divorce praclhlonef, h~r, should nOI conclude Ihat ll he can "call a cow a horse" by providing that ... property settlement I. deslgnll1cd "in the nature of alimony millntcn,lflce or support;' that he might have the best of all possible worlds. The bankrUI)tcy courl is a court 01 equiTy and usi ng such a d~ vice will ri sk the court's holding that it
The Alabama Lawyer
is a mere subterfuge. Ca!clul planning for senlement or trial and careful drafting of divorce documents and pleadings, considering the relationship between divorce and bankruptcy, will make Ih.lt dif· ference. NOTE : Two definitive articles, Freeburger & Bowles, 'What Divorce COurt Gi~th, 6JIlkruptcy Court Takelh Away: '" Rllview of Ihe DischarscablHty of Mrllital SUPPOr! Obligations," 24 Jour· nlll of Family Law 587 (198S·1986), Jnd Ravin & Rosen, "The Dischargeabllity in BankrupICY of Alimony, Mainlcn,lflce and 5ul>l>oII Obllg.nlons:' 60 American Bankrupley UI\V Joumal I (1986), p~ vldcd primary guidance and were often quoted herein.
BUSINESS VALUATIONS employe.. ,I/,)('k oWO~flhip plans acq uis II iol'LS/di Vel t: nr rei Iwckholdn disJlIIII!S divorces • ch.,iuble liflJ «Illes · incWllibl. UJetJ
Contact :
Member American Society or Appraiscrs PaSt Prtsident·Atlan1.1l ChnJ)tcr The Institute orChancrcd Financial Analyu~
•
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149
Retirement Plans and Divorce: Some Considerations in Planning Settlements by William 8. Sellers
Introduction The world 01 deferred compensation Is
,
a land of cvcr-chiJnging complC!x rules and alphabet soup HIles Inl0 which mOSI law~rs with any concern for their own
'"
Solnlty would just as soon not \lCnture. Indeed, the StatuWS molded by federal legislation and regUlated by the Internal Revenue Service and the Dcp..1l'(ment of \.<Ibor have h\creascd so eXlx>nentiaUy
thaI It Is hard for even the SJ')e(;iillisl 10 keep current.
As the amounts of penSion plan assets ha\le burgeoned 10 Oo'Cr 52 trillion and havc come \0 be leiS of a IUJ(ury and more of II right, Congress has seen fil 10
legislate. And, sinC@ 100 annual tax benefif$ given \0 cmpl짜!S' retirement plans by CongrfSs as Inceotl\6 for emploo,oees afC eslimated 10 be In Ihe billions, Congress has enacted laws 10 make certain
...... ,.".
150
these benefits "ftl nol abused and 10 accomplish a variety of what thC!y sec to be desirable social ilims; Just like kudzo, the regula!ioo of dcllmed compensation has spread Into many areas only tangential. Iy reJat<.>d to providing employees retirement. One such area reached by the gf(mth of regulation is domestic rcliltioos. Congress was concerned that oonefits provided 10 an empl~ should not exclude the Sl)Ouse in the ~n t of divorce. So, while the truSIS thill hold the sums of deferred compenSo'I tion arc spendlhrih by law and Inalienable, there Is one exception and thai Is to a spouse pvt'S uan t 10 dlvorce,1 It Is the purpose of this Miele to fOcus on the law alld regulations of dclerrcd compensation as Ihey relate to diYOfCe May 1990
and see how they funClion whcn there is a divorce. Planning opportunities In this area will be discussed to elucidate these rules for the pmctitloner and to proviele meanlngfu l8u ldcli n~ in represent· Ing p,lrIics in di\()rce,
fits; the spouse now must present a "qualified" domestic relations order to the 1>lan administr;lIor and then, and on· Iy then, would the administr.ltor be Iequlre<l to pay out a portion or the retIrement beneflts.l
Retirement benefits A, Background The Employee Retirement Income Security Ad (ERISA.) of 1974 required bent..fits under a retirement Illan not be assigned or alienated. To qualify for f;w. orOlble tax tre<ltment li S rC(lui red by ERISA, iI retirement plan WoIS tequlrf!d 10 have spendthrift pr(1o<isions to pre\ff!t any person or entity from aUilching the retirement benefits of a participant In a ptan . Because of th~ pl'OYiSions in ERISA., state law was preemptoo, and It was the position of most federal district courts tha t the spouse ofa retirement 1)lan par· t lclp.~n t had no ri ghts to benefits In a retirement plan. Becil\Jse of thc Inequities 01 this position many courts began to chip ~ rUlhls harSh rule and made ex· ceptions for support and alimony payments. As there were differing and VoIried opinions as to the C!Xlent to which ERISA precmll ted some statel:!Wi relating to family $upporl obligntions, the IRS felt compelled 10 respond and attempt SOme uniformity. In ~nue Ruling 80-27, the IRS ruled that the required . pendthrift prOVisions In a retirement plan arc not violated when a pl(ln tru stee complies with a court order mandati ng thc distributions of ~n l!f'l t.s to a pl rticipJn t's spouse or children In Si'ltisfaoion 01 SUI)llOrt obligations.! To further clarify this position, Congress enacted the RCllr~ment Equity AcT(REA) or 1984. This acT accomplished several objectives. The first was a provi· sion rcSIil ting the requi rement that relirement plans have spendt hrift provisions, but an exception was allowed so that bcnt.>fIIs could be anached for family sopport obligations; lest there be any question as to wha t 1!llo1ctly qualified as a family support obligation, Congress defined Ihe procedure for obtaining benefi ts from a retlrement plan. Tht.')' stilled that the only manner for benefits to be attached was by having a Qualified Oom(.'Stic Relations Order (QDRO), It no longer would be enough for the divorced spouse of a plan particip.lnt to obtain a dil,()rce decree and thereby receive bene-
B, AlalliJma law In AlaiJ.lma, retirement plan assets cannot be used to pay alimony In gross or to make a property ~"Iement.· HCJWCVer, it Is I>roper for periodic alimony I>il)'ments to be p.11d froM retirement plan Ih1yments.' The cases under Alabama law n(JY.I cited as precedent were written before REA was p..1ssed. Under current fooera l law, most reti~menl plilns must have the consen t of a spouse to obtain loans and determine the types of payments to be made under the p11ll1,7 In addition, the spouse of a retirement plan pMticlpant must receive a death benefi t unless Ihe spouse has consemed otncrwlse.- Requlr. ing spousal consent ImpliCitly supports the position Ihat Ihe spouse of a p.1rticl· pant has incidents of ownership over II IlOrtlon of the plan. While such an argument hilS never been made In an Alabama case of which this writer Is aw.lfC, the Internal Rt.'Venue Code appears to support the position that spouses of jXlr(icipants In retirement plans possess incidents of ownership and, thus, should be entilled to a portion of the t),fjrti(ip.l nl's rt;:tirernent plan assets. The argument also could be made tha t the sweepln8 larlguage of ERISA SS 14{a) preempts state law and as a f't.osuit, ERISA would require a sta te court to recognize a spouse's right to (eec ve benefits under a retirement plan .'
The AI,lbama Lawyer
Unless such an argumcnt is made and accepted by an Alabama court, a QDRO may only be used in Alabama whcn Ihe participant spouse agrees 10 use his plan assets to p."l)' alimony or as 11 property set· tlement. Thus, until such time /lsthe Alabama courts acknowJt.'CIge a spouse's rights to retirement plans asscts, a QDRO will benefit only those rc'lrcmcnt plan particlp.1nts who consent 10 Its use.
C. RC(IUlrclIlents for a Qualified Domestic Relations Order Wi th the number of retirement plans in existence In the United Stiltt.!5, It 151m· portant for the practitioner representing either side in a divorce to know the requirements for il QDRD. If drafted properly, a spouse may recelYil rt..,ircment benefits under a retiremen t plan, and, If negotiated properly, the I>artlcipan t spouse may receive f;rvorllblc tax trea tment. The mechanics of the QDRO arc straightforwan:l. First, theft! must be II domestic relations order. This is defined by the tax code as Hany Judgment, decree, or order (including approval of a properly settlement) which relates to the provision of child support, alimony pay.ments, or marilal property rights to a spouse, former spouse, child, or Other dependent of a participant and Is made pursuant to a State domestic relations law.... This domestic rclMions order must create or recognize the eKlstence of the spouse's right, or assign to the slXluse a righ t to rCClJive all or a portion of the benefits p."'Iy.!ble to a p<lrtidpant under the retirement plan.'o Thus, to be recognized as a domestic relatiQf1J order under the Intemal RtM!nue Code, i spouse May
WIlliam 8. Sellers 15 an a,Ssoc!:lIe with
the Montgomery firm of Kaufman, Roth· Feder & 8/i,z, P.C. Sellers graduated from Hillsdale Col/elc. Hillsdale, Michlsan, magna cum laude. I-Ie received hi5 law degrcc from I hf! Univcrslly of I\lilwma School of Law 3nd continued his IC8111 education at NEW 'rtlrk Un/vcrsily where he received an a,M, In taxation.
151
have any generic dlyorce decree, bUI wilhin the body of the decree Ihere should be specific language thai Ihe spouse has a right to bcnclhs under Ihe mtiremenl plan If a decree does not mcntion thc righl to receive retirement benefits, then the diyorce decree will not be a domestic rela tions order and the spouse will not be able! 10 r(l(eive benefits. Once It is escablishl..'d Ihat there is a de> m('Stic relations ordcr or when orle Is drafTed, Ihe next step is for the order 10 be qualified . Tile firsl step In qualification Is that the order contain eenain Informallon . This nformation indudes: T) Ihe name and last known (lddress of Ihe retirement plan p.lnic!panl and the mailing address of Ihe spouse; 21thc amount or percentagl;! of the paniclpant's bencllts to be paid to the spouse; 31 Ihe number of p:lyments or the period to which the order :lpplles, and; 4) each retirement 1)lan coycred bv the domestic relations order." In addition, the domestic relations order must nol h3Ytl certain proYisions. The proYisionslhat will disqu ..tlify a domesllc relations order are: 1) any type or form of bcnt.ofits, or a"" option Ihatls not provided In the plan; 2) any prtWlslon requiringthe plan 10 provide increased benefits dcu~rmlncd on Ihe basis o( acwarial ..... Iue, and; 3) any provision requiring the payment of a lx'l1etlt to a spouse thai Is required 10 be paid to another spouse under another QDROI1 This step is probably the most dl/tlcult and requires that all retirement plans under which a particip.1nt spouse benefilS be carefully ek"mined . The section 01 the plan that should be especially examined are the provisions
Richard Wilson & Associates Reg istered Pro fess ional Court Repo rters 17 Mildred Street Montgomery, Alabama 36104
264-6433 152
concerning distribution. Most retirement plans hIM! many forms of distribution. Since Congress did notlhlnk it was fair to force a plan to make a distribution not provided In the plan, a spouse Is limited by the types of distributions drafted Into the plan. The drafter then should be care(ur tO PT'O'lide only for a benefit to be disIdbult.'(i as gi~n in the 1>lan . If nn order were to prO\llde othMVlse, It will bedl squalified. and the spouse will receiYl;l nothing.
o. The rol~ of th~ plan administrator When a domesti( reliltlons order Is drafted as required, SO that it becomes a qualified domestic relations order, the righls of thc spouse do not spring Into existence. Rather, a determination must be made by the plan administrator as to whether the order is in faci a QDRo. Plans are required 10 establish procedures to determine status of Ihe de> mestic rel;ltions order and this is another reason for examininglhe plans 01 the participant spouse to ascertain the proper party to whom a client's domestic rela. tions order be subrrilled. A domestic rela tions order should be sent 10 the plan administrator, and he is required to notify the p.1rticipant and the spouse promptly that he has received the order and given all parties 1I COI1t' o( the plan's l>rocedure5to determ ine If the order is (IUalificcl. This determination Is required to be made within II reasonnble period of time. Durl1g the time It tllkes for the admlni~ralor to make Ihe determination, all monies that would have been paid to the spouse must be placed In a segregated account. If lhe 1)lan adminlWiller dctCrmirll:S that the order 15 a QDRO, then all monl(!§ placed In the segreg.1tl.'tl account may be paid to the spouse. If there Is a delermlnotion that the order Is not a QDRO then the segregated amounts arc Ih1id as they would have been paid under Ihe plan and the spouse can follow appeals procedures.u
me
E. P.-aymCIII of benefits to SIlOuro Benefits for a pMicipant's retirement plan are paid to the spouse when the partld p.1nl would receb'(! benefits. As mention£od above, the payment of the benefit cannot be distributed In a form that 15 not prO\llded hI the pl ~ n . HOWC\o1lr, while there are cerlain limitations on the time when a participant may rcc:eiVl;! bencllt~
there are exceptions for spouses under a QDRO that are more lenient. Some plans require a participant to 5ep<Ir,lte from emplC1(rnent in order to receive benefits. Under the rul(!§ aboYe, in order for a QDRO to be qualified, Ihe spouse would not be entitled to receive a benefit until the partlclp.lnt retired. However, a special ekCel)tion exists for a QORO 50 that a spouse may receive a benefit cycn though the partlclpam ls still employed by the business contribulinll to the plan. The QDRO may prtWlde that the spouse is to receive a benefit when the participant reaches earliest retirement age, even though employment h,15 not bt"-cn terminated. Earliest retirement age is a term of an and Is defined by Ihe 10ternal Revenue Code as the earliest of: 1) the date on which the participant is entilled to a distribution under the plan, or 2) the laler 0(: (a) the date the I>artld. Po,nt attains age 50, or (bl the earliest dale on which the 1).1rtlclpant could begin receiving benefits under the plan if the participant sep.lrJted (rom servil:;e.'· Again, It will be important to consult the plan to determine h<p/ the distribution fe<lture works. It could be that a participant is entitled to re<:ei~ amounts contributed to the plan ~fter tax al any time. If This were the case, then the SpOuse could receive Immedlnte payments (rom the 1>lan. If the parlicip.lnl is not near cady re tirement age, then the benefit of receiving a Ih"Ymellt v.1)I,Jld nQI be immediate and could present a problem. However, there might be a benefit in bargaining 10 receive a benefit that would not begin for some time as this would decrease thc spotse's retirement needs. There 15 authority Ihnt a plan mil)' be amended to prO\lide for paymenl5 10 a SI)()Use before earliest retirement agc." In order to have a plan aml'flded so thaI a distrib(ltion may be made prior to earliest retirement age, a favorable determination letter should be obtained from the Internal Revenue Service. Amending a plan Is not always an easy touk and can be costly. Any amendment would have to follow procedures outlined in the pliln documents and typically mUSt be apprOYed by the plan sponsor. While amending a plan fOr OJ small employer Clln be accomplished speedily, It Is doubtfullhat a 1)lan sponsored by a large ('mployer would be as accommodating. Ma y 1990
Tax planning with QDROs A. Introduction Perhaps the most Interesting aspect of QORQs and the most important In nego. lIating the divortt' scIIll:ment is the abil· Ity to plan for tax I)Urposes. There are a vJrlety o( financial products that can be ulilized to assist a participant spouse In accomplishing his lax planning needs. Instead of being taxed on making with. dr.JWills from his retirement plan, a QORO could give his spouse certain benefits and thus iNOid lax on distribulions. The spouse, h()l\N('V(!r, would have to include these benefits In Income. There are also v.u lous ~cl se taxes that apply to distributions from retirement plans, and since QOROs are given ftwo orable treatment, these can be avoided to the benefit of the p.uticlpant.
B. Distributions from retirement plall§ When a partici pant has reached retirement agc, and begins to receive distri butions under the plan he will be taxed on amounts he receives as if he had an annuity. HO'Ne\Ief, If amounts are distributed
®
to his spouse from the plan, ur'ldN a QORO, then the distribution will not be taxable to the participant, The amounts thaI are distributed wi I be taxable to the spouse as if she were a participant and distributee of the benef" , and she will be ta~ as If an annuity was recei~." This allows (or the partlc,pant to give the spouse benefits from the retirement plan In the QORO and 1'101 be tJl(ed on the amounts.
C. 1RA5 IRAs are !'lOt required by the Internal Rcycnue Code to be spendthrift and may be auached at any time. Therefore, when there is a divorce and one spouse has an IRA, it is not necessary that there be 3 qualified domestic relations order, tRAs have no plan administrator and there Is no t)ccd to provide the same guidelines as there would be for a retirement plan with several emplO'y1!(!s. It is possible, however, to make a tmrlsfer from one spouse's IRA to the other spouse, and this will not be treated as a taxable lran5fer to either Spouse.'1 It is necessary that there be a ""lid divorce decree or a writ-
VERITAS, INC. Seruing the Southeast
OUR SPECIAUTY IS EXPERT WITNESS SERVICE IN THE AREAS OF: • POLICE PROCEDURES • SECURITY PROCEDURES • JAIL & PRISON OPERA T/ONS • ECONOMIC LOSS • JUVENILE JUSTICE OUR EXPERT WITNESSES HAVE EXCELLENT ACADEMIC CREDENTIALS AND EXPERIENCE IN THEIR FIELDS. CALL FOR FREE CONSUL TA TfON AND RESUMES.
PRINCIPALS: WtlltAM A. FOFlMlv, PhD RAYMON~ O. 8l.IMFIAU., PhD
CHI EF JEFIFIV O. FUllEFI (RET.) VERQIl L. WILLIAMS, PhD
(205) 333-9204
2728 LURLEEN WALLACE BLVD. NORTHPORT. AL 35476
The Alabama Lawyer
D. Early distribution I.ll! Under the Internal Revenue Code, if a participant takes an early distribution (rom his wtiroment plan, a 10 percent excise tal( will be imposed on the dlstribution,H Thus, In a situation whero a participant had nOI termin.ted employment, but had reached eilrly retirement age and received a distribution from his retirement pl(ln, he would have a 10 percent excise tal( to pay on the distribution he received. There Is, however, a sl>I..'d at c)lcepUon for QOROs. Any distribution to iI spouse under II QORO is not subject to the 10 percent exr;;ise t;l X. So, If a pMtic1IXltlt gave the spouse II rlghl lo l\.'Celvc amounts (rom his rorir1;'ment plan that would begi n when he reached early retirement age, he could satisfy the obligation from amounts In his retirement plan that he would nOI be able \0 touch wUhOut paying on excise tax."
Affordable Term Life Ins urance from Cook & Associates Com~rc
INVESTIGATIONS TRIAL PREPARATION PRE-SENTENCE INVESTIGATION POLYGRAPH EXAMINATIONS
ing Incident to divorce." So, In the case of a divorce Involving IMs, amounts sa\lCd In the IRA may be Iran$'erred wi th no till( to either the distributing spouse or to Ihe receiving spouse
th," low non .mok,r annUllI ra tu lOr oon· yearly renewable term in&urance;
d« r~a .. ng ,
MALE AGES
"" ..""" " "60
"
S250 .000
,,",.000
248.00 248.00 255.00 298.00
455.00 455.00
3~ 8 .00
430.00
600." 875.00 1,525.00
460.00 M5.00 601 5.00 1110.00 L,l!IO,OO 1,700.00 3,(XH).00
$1.000.000 845.00 845.00 875.00 1.045.00 1.245.00 1 ~ 7S .00
2.255.00 3.355.00 5.'155.00
Renewable 10 age ]00. Female rftlel l ame aI mlIiel sill V'1a rl youn,9llr, AUCOV\1rll!W provicled by eomp."rltl r/l t,d "At " by A M. BeSI Co. FOI a wrl1ten Quotation and pol,cy delCnpton &e nd your dare of birth and amount 01coverage cWlired to·
COOK & ASSOCIATES P.O . Box 8505 17 Mobtle, AltlbarTla 36685·05\7 (205 ) 3<11 -5 168
_ ........
...-"""""~,...,_u.
153
E. Excess distribution tax
F. Planning ideas
To prev(!nt highly compensaled persons from receiving too much of the retirerTIent plan tax subsidy, COllgre ss enacted a provi sion Ihill forces retirees receiving ()I.Ier $112,500 a year (adjusted annually fOf innation) frOrTI retirement plan s 10 p.1)' an excise tax of 15 percent)) H(lWf.'YCf, in computing the $112,500 amount, any retirement di5tribulion to a spou se under a QDRO is no t included. Thus, a wealthy eml,IOyCC receiving reti rement benefit.; CQuid draft the QDRO so that the spouse would get contribution s in excess of Ihe $112,500 am oun!. The spouse's claim 15 satisfied and at the same l ime, thc participant spouse avoids the excise tax he would have paid if he were forced to withdraw th"t amOurll to make a ca sh payment 10 lhe spouse.
tf a spou se will r(!Ccive amounts from a ptrrl lci pant'S retlrerllcnt plan s, lhe amount of the dlstr bution must be in· cluded in gross income as d iscu ssed above. If Ihe spouse wan ted, this tax could be aYOided by having the spou$e rolilhe amo unlS received InlO arllRA or anOlher qualified re tirement plan. The roll(M.!r muSt be accomplished within 60 d¥ of receiving the d istribution. The spouse will not be ta xed until she reaches 70 1/2 and begins to withdrilw money out of the IRA, but in the meantime, th e money would be 1I11(lw(o(1 to grow lax free. Thu s, laking a distribution frum a rt.'tirenlent plan In lieu of the s,1mc ltorTIOur)l In an outright cash settl ement could prcvenlthe spouse (rom paymen t ta x on receipt of the amount and allOW"
Pualtd by the Inulcac les 01 a con strllctlOn dh;pUltt Dr daiml WH n nlulll·d llclpiined
srill of con \lf uction t"xpcrll
~. n help yUu pull ailih e pieces tI)II1!lhe' In lO i dt"i' and mllinlngl",1 piCI",re_ and htlp i I",'y ~ rh ar pkl",.e. 100. If neceUi')'.
the funds to be rolled over into an IRA or other I'Ctlrement plan to be invested lax free until the spou se reaches reTireOlent age,u Conclusion Most people In thi s day and age are participan ts In reti rement plan s, They have con tribu ted money and Ihelr employer has contributed mon(!y SO that their account bal,mce in Ihe plan or the benefit thaT they h;r..oe accrued is substantia! and cou ld easily be the largest asset thl!y htrV(o. As Ihem Is no longer a q uestion as to the means and manner for access 10 retiremen t plan s In a diyorce, practi tioners can assist their client s by conSidering how the acc umu lated amount s in (he retirement plan s will be divided in the ttlemen!. By drafting the divorce decree so It Is a qualifil!d domestic rela tions order, client s can be assured that they have ei· ther a righl hI their participant spouses' retirement plan or tha t their spouse has no right s In the plan, Since qualified domestic rela tions orders are flMlred, the tax treatment afforded to spouses using II QDRO Ciln be \wnefidal. When th e property se ttlement is negotiated the assets in reti rement planS can be used to sa tisfy bolh the curren! and (uture needs of lhe spouses. Care should always be liikcn hI considering the tax aspect s and a QDRO just might be the vehicle to remedy any adverse tax problem .
fOOTNOTES I. IRC §401ja)(IJ).
2. Rev. 1M 8G-2r. 196G-1 C.8. 8. l iRe § 4 01l ~) (1) ). 4. Sl~ Ka /).l cl v. K~WCI. )7) 5o.2d 1144 (Ata.clv.... JlIl., 1979). Sf!f1 alw, T/tomPI(l(l v. Tllompson, 532 So.2d 1021 (A1~.c:i~....,Ip.,
Tile Il rm·s odre ol ll.chllt'Ch. en~lneeIS. COOl
Ichedu le.s. compuler l"'perll an(l fltld CQn.uuclinn ""m.~ns ...u _II i s a ~1~la h sl s.
hOSI 01other spocla llsls•.. h.'"I le .~ mO.I! Ihall ItrOOd l ll~l enllt"g<l l offices nallonwl(lo:. Thl1V h~vtl helped 10 fI,.olvl! Iho",l and s 01 cons truellon C'lles Qn more than $10 bitlion w<!'lh 01 ConS lluCl ion. C. II 0' wr llU IQr i complrmenl.')' t Ol)Y 01 W111 'S lull se. vkes
1988). i SIN! "Illy/Of v. TIlVIor, 37 So.2d 1>45 (AI~ . , 1948). 6. IRC 541r (~1I2) & (4). 1. IIiC §401(a)(1)(B) I nd §417(al(H. 8. ~ Mac~ v. I.IInier CoIle<:Tlons A8<'IlCY & w.
broc hu re roday.
vice, 108 S.Cr. 2182 11968). 9. IRC 5414(1-')(1)(8).
10. IRe § 414 (p)(H("' I.
11. IRC 5414(p)(2), 12. IKe §414(pl(J).
11. IRC 1414(1))\6) alld
(1) .
14. IIiC 5414(p)(4)(81. P,lv.1I(! leui:' RuHnS 8743102 and 874 4023. Iii. I'rlvale !.errer Rull"8 8907062, Sw ~!so, rRC
ts.
§ 4 021~H9) .
v. •• prn •• .... ~ •• copy or ve'" ".o<h•• • W. h •••• p ••• rl ... cou" ... l m~ ,
NA ME n ~ M N~ M I
"IV"ON'· NI)
'54
1'.l'riv~l(: Lt:rr~r 11",111\8
S4OB(d)(6). 18. Id . St'(t ~/w.
8916063. See ~/so, IRC
Tr~~$. Reg~
1,406.4(8111).
19. IKC 571(0.
Sl ~l.(f ~DIlME!rS
e!l v
,Io. cll....' . .. '.I...
UATl
20. !'flvate !.ene, Rull"8 81S10~ o. 21 . Id. S", ~Iro. IRe §402Iil(6Mf). 22. IRC §4961....
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May 1990
Proposed Health law Section Application Thi~ \t.'Clion is open to members of the plaintiff's Jnd defense b..lf who arc inlerestOO or Involved in the everbroadcnlng IntcrfolCC bel\VC("1l law ,lnd hCil llhc,lre, including but not Iln1l1ed 1o V(l riou~ stille and federal issues such JS Medicare fr.lud and abu$C, payment problems, merger and acquisi tion of hcahhc.l rc entities, antl!ruSI, risk m<lllagcment, poor
review, Ilrovidcr malpractice, Indlvidu,11 righ ts, find supreme cour t action s.
This section anlldp.llCS a CLE progr.1m oll Ihe .mnual stOlle bar mooting <lnd other .lPPropriale times. ProPQsed dues ,lre S10 pel yc.lr. Plea)C check on the lillc below if you arc interested in (orming this section, provided a!'ly ol her area of interes t you woul d like to see ;Icicle<! to theft(! 'Ibove.
,lnd add in Ihe 5pt1Ce
I am Inlcre,IL>d in (orming a Health Lllw SeClion of OUI' bar _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
I would likE.' 10 5CC Ihc section description include _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
N.ln1C _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
BM 101/ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ Acld rc~~
Please relurn promplly to:
Grl!Kg B. Everett, Chairperson TMk Forel! for Health Law Secti on Alabama Stilte Bar P.O . Uo...: 1)7 1 Mu ntgomer y, Alabtl ma 36 '0'
The Alabama Lawyer
ISS
About Members, Among Firms ABOUT MEMBERS
North, Birmingh(lm, Alabama )5203.
T. Roe Frazer, II, imnounces a d'fll1!!C of address. The ilL"'" ;uldrcss ;md phone Ilumber are 1."" 85!on & FI'il1.er, One lackson Place, Suite 1356, 1'.0. Box 23307, Jackson, Mississippi 39225-3307. Phone (601) 969·1356.
Phonl! (205) 251-8 44B.
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AMONG fiRMS Smich, H,'nds, Block'!r & Lowther, P.e. announces the reloc,llion of their 10 3500 Independence Dri\/(', Blrmingh,Jm, Alab,una 35209, Phone (205) 679·9595.
offlcc~
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Inge, Twiny, Duffy, Prince & MeKe.ln announces Ihal Agee S. Broughton, III, i ~ now a partner in Ihe firm. Offir;c. arc localed at First Ala· bllma Bank 8ullding. P.O. Box 1109, Mobile. Alab.lma 36633.
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Starnes " Atchiw n ann O un<;('~ till! relocalion of ils offices 10 St..vcnlh Floor, Four M~trl)plex Drive, Blrmlng. h(ll11, Alab,lIna 35209. Pholle (205) 868·6000.
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Balc h & Bingham .lnnounces Ihat
John David Snodgrass ha§ jOined thc (J rm as a p<lrtncr in Ihe Ilunlw llle
offi ce, October I, 1989. The firm also Olnnoun ce~ that l am~ A. Byram, Jr., has jolnt..'Cl the firm as a partner In the MOlllgoll1cry offlee, October t, 1969, and M. Stanford Blanton has become a I>artncr wi th the firm in the Hirm· Ingham office, Jilnuary I, 1990.
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Rog~r L lucas, formerly a parlner wilh Emond & VinC!S, arId te. Rick Alvis ,lIld Robert E. teiroy, Ir., fomlerly a)'>OClates with Emond & Vines, an· r\our\ee !he formation of Iheir prek+ ~I onal corporOition (or Ihe practice of law und<.'f the n,lme Lucas, Alvis & teirby, P,C. Officc$ arc 10calt..'(1 .It 250 P.lrk PI,lce Tower, 2001 PMk Place
1S6
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The (lrm of 1(11'18 & King ;In. noun ces Ihal Randy G. Stt.'Phens,
form erly general counsel of the AI.ll)ama EduCl'llio r'l ASsoci:ulon, h.lS l)('Come associated with the firm, December 1969, Offices are locilted OIl The King Professional Buitding. 713 South 27th Street, P.o. BOle 10224, Birmingham, Alabama 35202·0224. Phone (205) 324·27Ol.
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Cabaniss, Johnston , Gardner, Dumas & O'Neal announces thnt Cecil H. Macoy, Jr., hilS bc<:ome an associate of the firm, with offlces In Birmingham ilnd Iv'obilc.
the Anniston firm of Bolt, lsom, Jack. son & Batley, P.C., nnnounce the form"Iion of a pnrtncr~hlp for Ihe pra<;tice of IOIw 10 ~ kr\own as Wal· lace, WyaU & Davenport. OffiCe<; arc locat(1(j OIl 308 Jclferson Federal Build. Ing, Birmingham, " Iabamil 35203. Phone (205) 324-7635.
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E)'5ter, Key, Tubb, \¥eaver & Roth announceslhill James G. Adams, Jr., ha< become .1 panner in the Orm . Offices ilre 10 c,lIt'(l ,It 402 EMI Moul· ton Slreet, Decalur, AlabillllH 35601. Phone (20S) 353,6761.
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Dominick, Fletcher, ~Iding, WJod & lloyd, P. A. ;Innounc~ IhOlI C. Clalil Collier, formerly senior vic('1lteSidenl with "m$oulh Bank, has joined the firm . Offices are located al 2121 High.. hind A~nut', Birminghilnl, Alabama 35205. Phone (205) 939·0033,
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Sheffield " Sheffi eld, r.c. ;In .. flounces Ihlll R. Wendell Sheffield has becollle a I>artner in the firm and Ih(l\ the nllme of lhl: firm has Ixoen changed 10 Sheffield, Sheffield & Sheffield, P,C. Offices arc localed OIl 730 Frank Nel~n Building. Blrming, ham, "laOOma 35203. I' hone (205) 328·1365,
George P. Ford .1nd I. Gullatte Hunter, III, formerly members of 5im· mon ~, Ford 8. BrlJr'l son, P,A" an· nounce the formallon of fo rd &Hunter, p.c" February 1, 1990.0ffiu..'!. Me loe.lted at 645 Walnut Strl'Ct, Sul!C 5, 1'.0. Box 388, GJdsdcn, AllIh,lIIla 35902. Phone (205 546·5432. Miller, Hamilton, Snider & Odom announcc<; that Dariel B. Graves and Hugh H. Smith ha~ Ix'Corlie memo
bers of Th~ firm, and Alison M. Mac· Donald, M, Frederick Simpler, Ir., and Sus.. n Eliubeth Run h.w(' Ix.'c ome assocIated with the firm . Of.. flees arc loc;)ted in Mobile, Mont· gomery and W;)shington, D.C.
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Michael A. teing, of Helena, Ala· bama, thiS joIned the firm of Cahill, Gordon & Reindel in New YOlk, New 'l\)rk, He was admitted to the "la)><l mo1 5t,lte Bar in "laOOma in 19BB.
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Joe R. Wallace and Richard L. Wyatt, formerly of the Birmingham ((rm of Davies, Williams & W,llJact.', ':lIld W. teirk Oavenj)Ort, formerly of
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The firm of A3ee & Medwtther ,lIlnounces that J. Clenn Cobb, Ir., h.l~ become an a$~ocla t C, IInc! Ih£! nalll€! of Ihe firm has been Chml!!(,<I IO Aget. Meriwtther & Cobb, p.c., P .o. Bo)( 11366, Chickasaw, Alabama 3661l. PhOne (205) 457·2378.
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Douglas I.. Friedman, P.C. an· no unces Ihill I. Craig BOIiley hOls become associated with Ihe firm OIl Suite 535, 200M Soulhbridgc Piuk .. W'IY, Birmingham, Alab.lma 35209. Phonc (205) 879·3033.
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May 1990
The firm of Schoel, Ogle, Benton, Gentle & Cenleno ;mnounces Ih£! w.. localion of l!s officc~ 10 600 Financial Center, 505 North 20th Slrt'el, Birrn. Ingham, A I ~b.lm.l 35203. Th{' new Ielephone number is (205) 521 ..7000. Tht' firm .11!oO i}llllounces tl MI David O. Upsholw IM~ becoll1e associ;Jwd with Ihe firm . Ill' rC(civcd hl ~ lImlt·r.. gradu.lIe deglt.-'C from Auburn Urllwr.. sity in 1986 dnd hi~ liM' dCHrt'i! flOm Florida St.l!c Uni\il!,-.;ity School of Law in 1989,
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Coale, HC'lmsing, l yons, Sims & leach, p.c. d'lnOUnCl'S Ihat Richard E. Davis and S.:mdy J. Crisholm have IX'CQme members of Ihe firm. Offices are loc<llt>(1 at LJClcdc BuildIng, 150 Governmenl Slrcct, Mobde, AI.lI,am<l 36652. Phont· (205) 432·552 1.
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The fi rm of johnston, 8arlOn, PrOCh,r, Swedlaw & Naif Jnnounct;'s Ih<l t Virginia Carruthers Smith ha~ become a s~oc i<l t cd with the firm. O f.. fices arc IOC.lh.'tI ,II 1100 PMk I'lace TOO'er. 8irmtn~hdm, Alab.ml.l 35203. I'holle (205) 32 2-06 16.
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jolmes 8, Notl, formerly .lsslst.lnt couno;el to the NJtlonal FOOlb<lU League, h.1S joined the firm of DolVis, Wright & Trt~ maine, 10C<ltCfl ,It 2600 Century SquMe, 1501 Fourlh Avcnul,), Seaule, W'I ~ b i ngton 98101 .. 1688.
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Thc firm of Ted Taylor ,mnounces Ih.11 jerry D. Roberson, formerly of Rives & Peterson, <lnd leah O. 'fdylor have become p,lrlncrs in Ihe firm and Ihill the firm name has been ('hanged 10 Taylor & Roi>crson, with offlces .1t 114 EJ~t MOli n StrCCt . P.O. Dr.I\o\o'er I I, Praltville, Alabama 36067, and 2112 rirsl AYCIILle North, BirmIIlHh,lIll, AI:I' bama 35203.
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Oliver Fn.>derick Wood, Ralph Wyatl HUWt!11 ,mel C. Harry Gr~n
The ""Iabama Lawyer
announce the furlll.1tlon of iI partner· )hll), c(fective Marc h 12, 1990, ro be known .l~ Green, Wood & Howell. The m.llling <lddrcss i ~ P.D. Box 1597, Hamilton, AlabamJ 35570. Phone (20S) 921.. 2133.
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Stol.es & McAll't! i1nnOLInces the Ieloc,ltlon of their offkc<. to 1000 DownIowrwr Boulevard, Mo bile, AI<lbama 36609. The mailing .lddf\'s~ is P.o. Box 99 1801, Mobile, Alabama 3&691. The rll...... phone numllCr is (20S1 460-l 400.
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William R. Blanchard, 1..1ura A. Coli· IOW,lY .1n(l Boyd F. Campbe ll an..
nounce the fornlalion of Blal1(hard, Calloway & Campbell, P.c., effective April 1, 1990. Omcr~ J«(' IOCilled .11 50S 5. I't-rry Street, Monlgomery, AI".. bam,l. TIl{' mailing i1ddre5S i ~ P.O. Bo~ 746, Montgomery, Alab,mM 36101 .. 0746. Phone (20S) 269 .. 9691 , (20S) 265·6671.
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The (lrnl of Rives & Peterson .In.. 1l0\lOCeS that Cholrles p, Hovis has become of counsd to t'l(.' firm. He is a formN <ldministrallW Judge of The Armed $('rvices BO<lrd o( Contract AI» Ix',ll s <lnd i$ fo rmer dupu ty <lssislanl gener.1I counsel of Ihe PrOCurement Law DivhlOIl of the United S lille~ General i\cwunling Office. ludge Hovis r('C('lved hi ~ undcrgr<ldumc degree (rOil) Er~kl!le College and law degl"Cl.' from GrorHc W,l<hinglon Uni'A!r.. ~ ity National law Center. Ilc will be loc,ltl,'d OIl the firm's omu' ilt Hilton He,rd, South Carolin~ .
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Mary Ht'th Trice hal Joined Ihe firm of Walsh, Donovdn, Lindh & Keech, fOCJted JI 59S Market SUeet, Suite 2000, Soln FranCi!>Co, C.ltifornia 94105· 2631. Phone (415) 957..6700. She is a
member of thl' Alab<lma, C,lIfornlil alld Tt'Xas b :lr$.
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Phillips & Funderburk <lnnou n ct'~ \('V('ral c:h<lng('s. The ncw addm\~, firm name and phone numul.!r M(' Funderburk, DolY & wne, p.o. UO~ 1268, Phenix Ci ty, A abamd 16868..1268. Phone (205) 297.. 2900.
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The fi rm of leo & A~~x:: I .. tes .lIlI'Iounces the a~soci ation uf IdmL~ R. HlnS{ln, Ir" formerl y JSSOCi.1tOO with Armbrec:ht, jackson, DcMouy, CrOWt!, Iiolmes & Rel'V('S In Mobile, Al,l" bama, lind RQherl N. Payne, form erly associated with Martinson & BeJson in Huntsvil le, Alabam<l. The firm'S new office\ ,u(' localed ill 200 Ibndolph Avenue, Suite 200, HUllh.. ville, Alab<lmn ]S601. Phonr (205) 539.. 6000.
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Markow, Walke r, R ('('~e s & Anderson of lackson, Mi so;issilJPI . JnnOlmCC~ 11"11 they h<lvc opened .1 Tu scaloo~ office, cffL'Ctive jamr.lry 1, 1990, Jnd th.1t Edward H . Hubb,ud ,md F. Martin Lester, Jr., h~ b(.'Come a ~wcitlled with Ihe fir m. Thl' offl er ilddress is 700 Energy CemN (Joul,,vard, Suile 405, Northport, Alabdm.! 35476. Phone (205) 349 .. 3500.
•
Lightfoot, Franklin, While & LuCol ~ .mnounces the opcnlllg of I t ~ uffic(' <lt 300 Fin<lncinl Center, 505 10th Street North, BirminghMl1 , Aldb.1 ma 35203.. 2706. Phone (205) 561,0700. The firm'~ I}'lrln('~ are W,men B. Lightfoot, S,lmucil"j. Franklin, ler(' F. White, Ir., William R, lucas, Jr" Mac M. Moorer, John M. johnS(ln, M. Christian King .md E. Glenn WJldrop, Ir. Associates are Adam K Pe<:k, II.rrliltl I. Praler, IV, Michael L. Bell, M.ldcline H. Haikala and WlII ~lm 11. Kill!!. III. •
157
Building Alabama's Courthouses by Samuel A, Rumore,
Ir.
Dr. Edward Gordon Musgrove was an
The fonowing co nti nues a history of Alab.lma's count y courthouses-their orIgins and soml! of the people who ca n· tribu ted 10 their growth. The A /;lbama uwrer plowS to run one county', story in each issue of the magazi ne. If )'(IU have a ny phOIOgfOlphs of CiU' Yor pres{'ol courthouses, please fo rward them to:
early setller in the a le~ of Pfescnt day J a~ per. He ori ";tll'{call'~ from Soum Camo IIna. Musg, " ';"IS.l phY'i ici;,m, .1 o;chol.Jr afld the first urlge Ollhl'! county roUII. It has been re("oun lt>d Ih,11 M U~Kf()\'1' heard cases while ~i tt i n K on.I big rock. The jury I on ,lllUtlu.' I, IMgt'r rock nearby.
offt'IL-d to give I.lnd 10 W,ll kMusgr er County ro m hiSown prol>crty p1ovid-
Samuel A. RunlOr(!, Jr. M lgllonlco & Rumore 1230 Brown Mane Tower
The first Jasper courthouse WJS a log c.l bin. ThiSbuilding w.lS damag«! March e, 1665, whenl he UnlO RJ iders under Gerl(or.ll Jal1ll'" Wil-;on btl ed the counhO\lw, tlw i.lil ,111<1 ,. f("lv () er buildings. Tim courthou"l' WJ ~ rrpai during lhe Rl'("nn.. tru( lioll £r,l hUI bUln <l8<lin July 22, 1677. II w .... WhUll1 "nel onlinued 10'" "" I\IC Ihe county until .1 Ih rd fi re de' Ir<I'),,<1 th t, ulUrthou..c S",p ember 21, 1664, Thl' n l'~ 1 .. tl UO \lrl' to , elVC S iI courthou,t' W,l, ,. lwo-~tOry btick bultdl ng con<, tnlct('>(1 by S hil'ld ~ & wi! n. Our· inK (on ~ If\l ('tio n , Ih(' ori!(inil l frilp1cwork dt'w ayt'Ci by ,\ fir£' 111 188S. Llhim<lteIy 111l' 1.-(1I1\lru(tio" W~ \ fi nl\ lwd nd Ihe
Blrmlngh"m , Aill!>;,"" 1 35203
W, I ~
Walker Counly WJlker County w.lScreatl.od December
26, 1823. It was named for John Willla",s Walker of Huntsville, onl! of Alabama's
ha rdest working ,md brigh1L'St political leilders, who had died only nine months befort!. Walker wa s born In Virginia in 1783. He gradu ated (rom Prince ton University in 1806, pt<lcUced law in I'ctersburg.. Virginia, and then nlO'Y'Cd to Huntsville, Alabama, In 1610 with the fa mi ly of his fathe r-in-law, lelQy Polle. He became speaker of the Terri torial l egislature In 1618, UnltL>d St,llCS Terr itorial Judge In 1619 and president of the first Al aba ma Constitutional Convention. He was <llso Al abama's first United Swtcs Seniltor. Declining heahh forced him to retire from the Sena te N~ mbcr 21, 182 2, and he died March 27, 1823, .11Ihe age of 39. Four of his sons bc<;<l rn l.! IJromlnent ill
Alabama
po lil ic~
The Legislature design1ucd Ihe home of Peter Baker, located In Ihe area between King's Challel and Lost Creek, as the temporary seat of justice for the new county. Two communi ties vied 10 be the slle of a permarent courthouse: I-lolly Grove on lost Creek, <lbout one mile from the present tCM'n of TO'>Ynley, and Jasper. 158
lod Ihat the courlhoUlt' he 1000,l te'd tlwre. !-Ie al comnll'l1ced l -on5truction of .1 co urtl o u ~t! buildir g. T h i~ ,le\ w ••~ enou~ 10 SC<.ure Ihe county $(.'<1 1 fo r I"~ per. 1\ h.u lem'-ml e<! there t,\,\! 1 \ II1 C('. Jas~r WJ ~ named In honor ot' Willi.JIll Jaspe of South elrolin a. HI ~ wa".l POPU· lar n mr IleC<Ul5e ,1 Su b~ t,'n l i,1I numlX'r of I Il~ idf'nt ~ in th e area came frOIll that ~ 1,1Il'. Ja ~ lJCr I ~ bl·li('Yt'd 10 l1,1ve emi8r,\1oo fmm Germany, ~cn lro in Phil, ad h)hhl 111 1767, enliS1l'd in Iht· AtnlY un· de F r.ln ci ~ M.llioll, Mid fOUKhl with thl' Sef0nd South C.110llflil Infantry. J a ~ l)er won recogllition at the B,lllie of Fo~ Mo ultrie in e h. rie,lon I IMbol (I n JII (' 28, 1776, When the Ameri can fl ag wa ~ hol down, J(I ~p('r r('c~red il Olltside Iht, w.lll ~ of lhe b rt ilnd nailed it on all Ihel ~t .l(f. Fur hl ~ heroi r;lll, Ja ~ p('f rc~rIL'dly Wil~ offcrl'il ,I b.mlcfield 'om, ml. slon by GOVCrno· John RUllr,<IK(' of So III C.Hulind. J J~I)(!r tu ld Illl: governQr Iha he was not a '-Chooled man and co Id nOI rt'ad , l ie did not wOl nt to disho r Ihe oliicer COfl~ by))t!\ng amXlinted \0 It~ r<ll1 . '1e lold the 14 rnor th;lI if Of~cf(_'<I, h wO uld ,lCCt'pt the f(lnk of se,.ge..nt In lC ~til1Cntal Army. History remembe himl~ (I rgeant Jasper, lasper continu 10 serve and he died at Ihe Battle of Savannah on October 9, 1779.
buddillK o p('ni'd for u~{' Dp<.cm r 22, 1866. By 1907 J ,l~Il\.' r ,1(1(1W,llkcr Courlty had WOWIl IO,u<.:h an C\lenl thJt ,l ll(OW OUMhou-.e \',m nl"t'(It>d , The CGunly bui t on till' <;'1(11(' 'Ill' ~~ Ih(' prcYiol~ court h scs J cI,l ~,I( gr.l ni1l' rock co u rthou ~ frontF by ,1 portlto, fOUf ("olumn~ and .1 trian gulJf
tX'di f1l (,Ilr.
Th(' Wut tUfE'
W<1
S.1muel t\. Rumof(', Jr.. is a gradu.l !e 01 Ihe Unlycrslry of NCXf(' DamE' and the UnlY('f';iIY of A/.l/);lma School of /,all(. He Jefvcc/lIS founding Ch.llf(1Crson o( Ihe .... 1,l 00ma Slille Bar') (amllf Law St.'C/lon .1Od I! In Il'JClIce In Birmingham wrlh Ihe (rrm of Migllonrco & Rumore.
May 1990
builders v.tere Fosler & CreighTon of NashvilJe. Tennessee, and Birmingham. Their original bid was $69,000 with an additional S15,000 to complete the third floor. On April 3, 1974, JI 7:5 7 p.m . a tornado hit Jasper and severely damOlged the courthouse. However, the building was repaired and a new annb: WOlS added durin!! 197&-77. The architects for the new projecT were Cobb, Adams &- Benton Architl'CtS, Inc, and the general contractor W,l$ Sparks Construction, Inc.•
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VIIa/ker COUIlIY
crowned with a dome conl.llning Ihe courlhouSt! dock. ;lOd it was lOPped by a nag, Early pholQgraphs ollhis building show an lmprossi\oe structure and include views of the landscape(! square, Conk.oder;ue memorial and a gazebo on the grounds over an artesian well , This g.u:obo or b.lndstJlld WilS mO\lCd 10 Ihe campus of Walker College where the structure is preserved for future Walker countlans. Fire struck again January 12, 1932, and for the Mlh lime in Jasper's history the county lost all or pan of a courthouse by fire. VVork begM on a n(.'W courthouse July 4, 1932. The new building W,lS con. structed on the foundmion of the previous courthouse. This building cO/llinues to serve the county. The l)feSent ~Iker County Courthouse was completed lind accepll>d by the courlly in May 1933. Il ls a three-story StruCiure with a nill roof. and Is constructed of while limestone on a sted frame. The interior of the building Is fini shed In white marble. Clock faces appear on the soulh, v.-esl and eu t sides of the buildIng. The courtnouS(> was designed by archltcct Charles H. McCiluley and the The Aillb.1mll La wyer
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Assessing the legal Needs of the Poor: Building an Agenda for the 1990s by Patricia Yl!agc r fuhrmelSler
NOT EV£'"
1\ UTfL£
PRO
\ !,
/ I
Patricia 'mager Fullrmcis/Cr is 11 mana· g;n8 aflome)' with Birmingham Area I.clfJlScrviccs Corpofd!lon. She r«eived hcr unoofsraduare degree from Auburn Un/verslty lind her law de8ree from Ihc University of Alabama School of Law.
Fuhrmeisfcr 15 a member of Ihe Alabama SUIIC 8aT Comm;lIce on Access 10 Legal Services and is immediate paS! president of the Shelby COUnlY BOlT Associ<1fion.
162
May 1990
This i, the second in a serie5 of anlcles by memoon of the Alabama State Btlr Committee on Access to Legal Services. The articles are based on the results of il surwy performed by Davis, Penfield & A$5(lCintes, a Birmingham research firm, on legal needs In Alabama. The surwy wa s commissioned by the Legal Services Corporation of Alilbilma and the CommiUee on Access to Legal Services with fund s from an IOlTA grilnl. The first article dei'll! with responses from low Income residents of Alabama; however, in any study of statcwide lego11 needs, It Is equally Important to examine the attitude. of the individuals available to meet those needs. To that end, Davis, Penfield sur.<eyed OYe' 250 Alabama attorneys and 61 attorneys, p.lralegals and admlnIStr."l\i\.1;! employees of Legal Services' offices across the stme. Not surprisi ngly, nltlrk(..o (lifferences \VCre observed In the basic composi tion of the two groups. The attorn<.'Y sample was ()Y(!rwhclmlngly white and male, while over half the Legal Services' employoos WCre female and oYer 40 percent we,e non-white. Nearly all non-LL>ga1 Services Corpora· tion attorneys su~ were in private practice, and 40 percent were enlpged in a general pr.lctlce. The mean firm's site was over 15 membcr'§, and the Silm· pic W.lScomposed of predominantly urban practitioners wi th nearly 90 percent found In alrmlngh~m, Mobile and Montgomery. legal needs of the poor 60th private altomCyS and 1.(>8<11 Services' employees were questioned as to the existence of Immet legal n<''t.-ds in Alabama and how best to meet those needs. Slightl y morc th,1O one-half of the private bar fl.'1t thM the legal needs of til{! poor were nOt beinll ildequatcl y met, l)Ointlng to the areas of domestic relation s, housing and consumer problems as the most scrlou; of the unmet n(.>OOs. Even more of the ~gal Services employees (75 percent) felt that there were unmet legal needs In Alabama, also citing domestic relations ilnd housi ng, but pointing to strinllent eligibility requirem<!nts and ina(lequ<lte staffing as fUflher b.1rri(!rs. Of the l)riVJte attorn(.-y'S who felt th,lt the legal n<!Cds of the poor W(!r<!, in fact. Thf! Alabama Lawyer
beinll met, most pointed to Leg..ll Ser· vicesll.cl\ill Aid as the primary source of assistance. Most attorneys responck>d thai the poor generally do not know how to seek legal assistance on their own; however; most also felt that thd r community had an effective referral system for directing the poor to an appropriate source of :'ISsistance. Local bar associations, Individual prlv<lte anorneys and social service agencies were prim<lrlly credited with assisting 1(MI lncome persons In gCt· tlng legal ald.
contact was g<!nerally Stronger in rural than in urban areas. Attorneys perceived Legal Services-' Col handlers as handling primarily Ihe same tyP'?S of c.'ISCS which they felt represented the greatest unmet need-domestlc (elations, housing an(l consumer problems; ha.vevel, despite this l)Creepl ion and the fa ct that a!1orney$ generally evaluated Legal Services positively, few regularly referred dlents to Legal SerVices and ;llmost one-third had never made a referral . Referral patterns, just as ;r.vareness and con tact, were stmngest In rural areas.
Awareness of Legal Services Almost all illlorneys SIJ~ were aware of a Legal Al(1 or Leg.ll Services of· Oce in their community and had had actual con tact with ~8al Services. This
COncerns of legal Services' p rofessionals Respondents from the Legal Services communi ty e~pressed genlJlnc concern
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163
as to their ability to meet the unmet leg.l l nL-cdS of the poor. Understaffing was vle'WCd as a problem by <In O\ICrwhelmIng maJority, but accessibility of Icg.ll services olfices and lack of knowledge on the part of potential clients .....-ere also Seen as problems. Significant percen. tages felt th3l1)(lor l>eople were limited In St."Cking legal assistilnce by tran SI)(lrHulon problems and by the fact th<'ll they shnply were not aware that they had a " legal" I>roble m. Legal Services' proleSSiOr\als su~ had bt."'f!n wi th a Legal Services progrJnl an average 01 eight years and over onethird indic.1ted they WQ(,ld probably 5tJy with Legal Services for most of th eir careers. A large m<ljority wcre s(I\isfi1..'(! both wilh Legal Services as a career and with their present position OIl leg.l1 Servi ces; hO\o'.'(!VCr, JT\any expressed a desire for Increased salaries and staffing and less regul ation and bureaucracy. Legal Services respondents li sted cases irlvolving finlln C~S llnd cr~ i l , s()c;"ial services, housing arid domestic rda tions as the majority of their caseload, bUI I)(!rcelved community economic develop-
mem, community educali(')n, childreds righ tS ;.m d hOl)Sing (l!; nC!eds to be reck路 oned with in Ihe fu ture.
Pro bono ISSue One solu ti on to the problem of unmel lega l needs in Alab~ma is the fostering of increased pro bono dforlS among members of the pri va te bar. Before (or路 mulating a strategy or making (ecommendlllionS, hOWCV('r, It Is vllal to gauge attomeys' attitudes and perceptions about pro bono work. BOlh priV(l\e iltlorneys and l.egal Services' employt.'es ..vere questioned about !)fO bono work in their communi ty. W hile similar In some re spe<:IS, f!!sponses varied In Sigrlifi cant areas. Priva te attorneys generally seemed 10 f~1 that l)rO bono work wa s !)fesen! in Ihelr community, and clilimed 10 handle an average of about ten pro bono Cilse5 per year; they also m~pO nded that they 5ho\l ld be doing more pro bono work and Iha t large firm s, l!Spt..'Cially. should Incrca~ their effOrts. About half felt Ihat the 51<'1 1e and local bar associations should play an even more active role in promoting pro bono W(lrk. Abolilthe same
number, though, opposed the establishment of a mandatory pro bono requlremenl . Legal Services' employres responded overwhelmingly that priva te attomeys must be willing \0 increase their pro bono efforts and thaI I;uge firm s and the slale and local bar associations should more .1Clively promole pro l)(Ino work. legal Services responden tS fa'>()red hirIng a stale pro bono coordinator and the es tabli ShrY1em of a CLE voucher system as possible Incentives for Increased pro bono work. By a sligh t ITIiIrgin, the POlY. ment of nominal fees (or pro bono work was also favored . In st,uk contrast to the priva te bilr, three-fo\lrths of legill Servi ces' empl~ favored a mandatory pro bono requirement. II seems appllrent that presen t resources arc r101adequate to address Alabama's unme! legal needs. The solution is less obvious, but clearly must have the S\lI'I:IOr! of all segments 0( the bar to be successful. The final article in this series will make recommendat ions and, it is hoped, will b~ the firSt ~I ~p in a cool>cratlvc effoft 10 provide legal assistance 10 those who need II mos\. .
WE SAVE YOUR
-NOTICE-
T IM E ...
~ arn e ll
Now tcgal r C:;C llrch
i1 ssi ~I~nce
is available when you need it. A t the mo~t rl:-'(,:ent .1nrw,,1 nweling of the American Bd r A~MK..i dl iun, II bHC,rrlW offidal 3s'iOCialion poll<.y to urge .l ll lnwyer~ to fL'gi~t~r ,lnt! vote.
Amerkdn Bar Auoci<llion
Resolution Adopled by Ih" House of ~I ~I~
Augu'it 8-9, 1989 Report No. 1248 Sf' It rewivl.o, thill the Anll'ri c,lr'I Bilr A~~Qdil颅 tion urges all I,Iwyers to rcgbtC!r ,md vote; That a ll l.w/yer~ el\wu ra~e .llld " ~Sbl t'mploYL>e of thrlr ()fficl'~ or firm ~ 10 particip,lte In till' C!1C!cl ion proce~~ by disS('minJting informJtion aboll t regi stration and v<?li ng in loc.11, ~t3 te ,,"d l"'Iion31 rk't:tions. and providlnj.: nPtMS;!ry leave to r{'~ist{'r ,Ind vOIC!.
LEG
A L
R esearch
without the necessity of uddir'lS Ii full -time a ~sOci .,tc or clerk .
With 3CCC~~ 10 Ihe StlllC I. (IW I. ibr:lry lind We:,.; tl:lw. we provide fa ~t and cflicienl service. For deadline work. we eun deliver informat ion to you vin common c ~rricr. pcdcrnl Express. or I: AX.
Fllrncll Legnl Rc sc;Irc h e~:Illlinc~ the issues t~oroughly through qualily rc tiCarch. brief writing and Annl y~i~. Our (ates IIrc minirnlllll.
$3~.OO
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For Rese<lrch Assist<lnce con t<lct;
Sar.. h Kathryn Farnell 112 Moore Bui ld ing
Montgomery, AL 36'104 Call (205) 277-7937
'&4
May 1990
Notice United States Bankruptcy Court Northern District of Alabama Effective APfil 2, 1990, each bankruptcy divisional office in lne \lorthcm District of Alabama will 00 1ICcepling all bankrupt路 cy cases for ming which are within their
r~pecl iye
territories as set oot In local Rule 9(a),
Please check the counties below TO determine which divisional office your pel ilion, pleadings, claims and /tdvCrS.llry
proceedings must be filt.'CI. Honorable l. Chandler Watson, Hankruplc y Judge Anniston (Eas tern Division) compri sed of the following counties:
Calhourl, Chcrok~, Clay. Cleburne, DcKalb, Elowah,
Marshall, 51. Clair, and Talladega.
Ho no rable William E. Jo hnson, Jr., 芦 hapter 11) Bankrup tcy Judge Honorable R. Clifford Fulford, (Chapters 7, 9, 11 a nd 12) Bankruptcy Judge Birmingham (Southern Division) comprised of the following counTies: Blount, Jefferson and Shelby. Ho nor,lblc Edwin D. Breland, Bankru ptcy Judge Decatur (Northern Division) compriscci of the following counties: Colbert, Cullman, Franklin, Jackson, lil ude rdale, L<1wrence, Limestone, Madison, Morgan, and northern Winston. Ho no rablc George S. Wright, Chid JudllC Tuscaloosa (Western and Jasper Divisions) com prls(od of the following counties: Bibb, Fayette. Greene, tilmar, Marlon, f'l ckens, southern Winston, Sumter, TU5(<11005a, <'lnu Walker.
OHiee
Mailing Address
l ocation
Anniston
103 U.S. CounhoulOe Anniston, AL 3620 1 500 South 22nd Streel Birmingham, At 3523 3 P.O. 80)( 1289 Ot.'Calur, AL 35601 P.O. Bo)( 3226 TuscalOOSJ, Al 35403
103 U.S. Counhouse Anniston, Al 36201 500 South 22nd SHl'Ct Birmingham, AL 35233 312 Federal Courthouse Dcciltur, At 3560 I 350 U.S. Courthouse TUSC;lloosd, AL 35401
Birminghilm Decatur Tuscaloosa
All adversMy proceedings, motions and other papers must be filed in the omcc where the bankruptcy case is pending, Any r(!(IUeSI5 for information must be dirccted 10 I~ office where the bankrUI)tcy case is pending.
Wi llia m C, Redden, Clerk U.S. Bankru ptcy Court 500 South 22011 Street Birm ingham, Al 35233
The Alabama Lawyer
165
Index to Summaries of General laws Enacted and Constitutional Amendments Proposed by the legislature of Alabama at the Special Session, 1989 Act No.
8i11 No.
89·965 89·980
S. J S. ,
89-990
H.3 H. 32 H, 39 H. 33 H. 36 S. I
89·991 89-992 89-993 89·994 89·1004 89· 1005 69-1007 69- 1008
S. 7 S. 19 S. 20
Senal!"! BiII§ Special Session 1989
Senate
House Bills SI)ccial Session
1989 House
8ill No.
Act No.
I 3
89- 1004 89-965 89-980 89· 1005 89· 1007 89· 1008
, 7 19 20
Act No.
Bill No. 3 32 33
89-990 89·991 89·993
36 39
89·994
89-992
Summaries of General laws Enacted and Constitutional Amendments Proposed by the legislatureof Alabama at the Special Session, 1989 Act No. 89-%5, S. ) , proposes an amendment to the Constitution rclillin g to Tu scaloosa Coun ty to valida te cerWin laws
regulating com and charges of
CO LIrl
and to validate certain acts and actions taken pursuant
\0
such laws.
Act No. 89-980, S. 4, amends section 8-8-1S, Code or AI<lbama 1975, relating to bad check charges levied by lenders of money ;!nd ex tenders o f other cr(.odit. so as to indude merchants and Iht! assign£!(! of a lender of money. extender of o ther credit. Or merchant. Act No. 89·990, H . 3, adopts and Incorporates IntO the Code of Alaoomll 1975 th ose general and perm;lIle!\1 l a w ~ of the state enacted during the 1988 First and Second Special Sessions and the 1989 Regular Session of the Legi slature.
At ! No. 69·99 1, H. 32, red(Ites thl;! <lppropri<l,ion m~de in Act No. 69·350, 1989 Reglll.)r Session, from the gener')l fund to Court Related Costs Not Otherwise Provided For- l egal Advice ~nd legal Services Program allocated to the Bibb Coun· ty Commission for the fi scal yeM ending September 30, 1990. (coll/lnued on nelft pasc)
166
May 1990
Act No. 89-99 2, H , 39, makes an al>l)ropriation from the Speci al Educational Tru st Furld to the Huntsville City Board
of Edu('ltion fOf th e fi5(;(l1 ye(lf ending September 30, 1990. Ac t No. 69·993, H. 33, makes tin apprOpriil tion from the general fund to the Bibb County Commission for the fiscal year ending September 30, 1990. Act No. 89·994, H. 36, amends section I j ·88·6, Code of AI.1bal/lil 1975, relllling to water, sewer and fire I)rotection au thorities, so as to provide furthe r for the board of directors of such au thorities. Act No. 89·1004, S. 1, amends SC<: tions 41-9-321 and 4 1-9-323, Code of Alilbam,1 1975, rela ting to the Tannehill Furnace and Fourldry COr'r1mISsion. so as 10 provide further for the number and aPl>ointment of members of Ihe commission and the meC!lings of the conwnissl orl. Act No. 89-1 005, S. 7, amends section 10·10- 10, Code of Alabama 1975, rela ting to professional associations furni shing st;llemenlS of members or shMeholders to the Secretary of Staw, so as to provide that such MMemt:!ntS $hllil bl! fvrni shed upon reqvcst of th e Se<:ret llry of State and to remove the S 1 filing fee .
Act No. 89' 1007, S. 19, makes an appropriation from the general (und to the Natiorlal Con fererlCc of Sta te Legislatures fOr m(!miJt:rship dues. Ac t No, 89· 1008, S. 20, makes a sUI)plemental <l1)I)ropriation from the agricultvral fund to the Dep;lrtment of Agri culture and Industries for the fi scal y(!ar (!nd lns S(!pt(!rllber 30, 1990.
Divorce-on the Beach Thi s family law $emin~r is designed 10 provide valu able information for the (~mll y law practllioMr. The f<l cv lty will be discussing bask stratcgles and concern$ that will assist attofr\(!yS hancllinB simllilr situmions with confiden(1! <Ind rel ative ease, Because of the experience and reputations of the facvlty, thoS(! who hOM! pfl.'Viovsly deah with domestic relatlorlS will find valuable insight ;lnd gain procedural skill. RClIlstration fee: FLS Members-S59; N on·member~S75. RI!8iStration fee at the door will be $20 morC! in each category. Pre-registration Is strongly en· covraged. Non·members wlllrcceiw FLS membership by ;lltend lng. TaJ( deduc tibl e: An income tax deduc· tion may be all~ for expenses of ed· uC;ltion (Including travel, meals ;lnd lodging) undert<lken to maintain and 1m-
The A/abamil Lawyer
I)ro-..oe skills. See Tre~s, Reg. §1.162.5,
List of Topi cs
Coughlin v. Comrll tHioner, 203 F.2d 307 (2 nd Clr, 1953). M CLf crroit: The seminar will provide 6.0 hours of Manda tory Continuing Leg.ll Education credi t, It Is th(! reSpon sibility of each al!orncy 10 maintain record s of his or her (IUendilnce, Please note: Make your rescrv.l tions at the Gulf St<lle Pilrk Resort Ho tel as (!arly as possible in that the Family Law Sec· tion cannot assufC accommoo<Jtions w ill be available for rescMtion s made after May 10, 1990. AC li y itj~:
There will be a golf tourna. ment scheduled for thoSt;! desiring to pilr. ticipate, AnrlouncemenlS (IS to time and place will be made at the seminar. Please ha\1! '!'Ollr regi str;ltion in early so we can make arr;lngement5 (o r your partici pation.
- Hot 11ps and Recent Developments -The ABCs of Divorce Tax.J.tion (Spok(!n in Clear English) -Psychological Issues In Divorce: How the Law~r Can Assess and Affect Re;lc· tlons hI lorIS-term Mjvstments in Divorce - Determining the Validity of Allegations of SexV1;l1 Abvse in the Custody and Visita tion COntext
-A Panel DlsCusslorl on the Use of OffIhe-Shelf Computer Software as an Aid in law Ofnce Management for the Small Firm - What Circuil Judges Really W;lnl to Hear from Divorc(! lJrwyerS in the Tria l Of Li tigated Divorce Ca ses
•
167
Marc h 12, 1990 M EM O RANDUM TO:
AHorne ys, court report ers and others receiving indigent defense pa yments
FROM:
Robert L. Childree, Sl ale Comptroller
SU BJECT: Social Securil y Number or Feder.ll Employer Identifica ti on N l,lmber
A~ an enhi'i n(emcntIO Ihe Siale of Alabama's nnancial accounting system, a common vendor file Is being deyel· oped to streamline and improve Ihe payment process. A vendor number will be assigned to every indiyidual or com· pany doing business with the siale. This number will cor\slSI of either th e vend or's social security number or the federal employer Identification number, followed by two digits assigned by my office. In order to Implement the new vendor file, we are requesting your assistance by completing the form at th e bottom of thi s memo and returning it to my office as soon ;:IS possii)le. II Is imper;uiye thai we receive Ihis information, and failure to respond will result in delilyed payments to tho!e vendors who do not furni sh the rC<lucstt.'d data. IXlACH HE RI
Social Security Number 0' Federal Employer 10 Number
Vendor Name
Vendor Address
Return 10:
State C()"lptroller's Office Indigent Ddense 110 Alabama Siale House M ontgomery, AL 36 130
SMALL FIRM SOFlWARE
AUBURN
'011 ,'M .-cos ~NO CO Al P~ rl8lES
o SIIQ'
11 ... . ' Ill~I~1I 111U5T ~CCOU~T I~ \'I II'IT(OIl. TI D , ,"" "~" N II'
Expert Wttne ss Services
0 '99'
o S17I'
lllun
0
"'or. ln I0"... 110" • Mil ,,0 It.. llllln,
E I.clrlc Silod'. • Alillollloth·e/A"I.tloa/M.,ln. Electro.ln • Medleel [k.le. f.lIl1", • COlllpllt. r 5,11."'1 • M.lcro ...... lIuud•• Blollllldical 5,.1••• ·HlIlII . .. M.cblle IoI.rfac•• O••er.1 E1I, i...rI1l, • II . . . . . .d Sod.1 Sclllnc..
Fr. .
n.... _ ..... , ... 00 ."""" 1<1 _
.... 'f'N' 109"1 _ .... '1' will 110.. " .. " """'""0 In .... t1Ian on _ .
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Atlorn~y
SoftwdJ'e, Inc.
-... '" .u.n.,. _ bf ~ 180 1 Australllll\ Ave. So. Suite 101 I~" ~~·:"'·:'/ll!l \ W. Palm Buell. n .3J4Q!1
I m ".~....;;.." j
166
1.800.749.9060
Dr, Michael S. Morse Dr, Thaddeus A. Roppel (205) 826-66 10 217
'.'1111
SlrH', Allbura, AL, 16110 • Rl:5M rt
R.""IIIGII
W.lcom.
M.1Y 1990
Bar Briefs U.S. D ist r ict Judge Gesell c hosen eight h annual Devi u Awa rd winner
Coopl!r nominated 10 chair ABA Ho use of D d ega l es
VctCr;'In u lal Court Judge Gerhard A. Gesell Is the recipient of the Eighth Annual Edw.1rd J. Devitt Distingui shed Service to Justice Aw.ml. Judge Gesell i ~ honored for his contributions to justice as exemplified I.Yt' his service a ~ a member of tile board of the federal Judiciary Center. and it member of the Judicial Conference Commincc on the OpcrJtlon of the Jury System and the Advisory Com· mlttee on Crimi nil I Rules. A United States District Court Judge for the District of Columbia since 1967, Judge Gesell h.u served a~ presiding judge for a number of the natlon'S most closely wil tch~ trials. including several Watmgate trials, the "Pentagon Papers" trial, and mOSt re¢!n tly, the complex lrim Contril and Colonel Oliver North trial s. The awilrd carries an honorarium of $15,000 and is symooli l:l.'d by an inscribed crystal obeUsk. Presentation will be made to Judge Gesell at a time and place to be named later. JlIdije Gesell joins the following win nllrS: Unltt.'(! Stiltes Cl rCLIlt Judge Albert B. Maris of Pt!nnsylvilnilJ (1982); United States District Judge Walter E. Hoffman of Virginia (1983); Chic( Justice W.lfren E. Burger (special award, 1983); United States Circuit Judge Fr.lnk M. John500, Jr.• of AlaQ.lma (I984~ United States Dbtrk t Judge Willianl J. Cilmplx!lI of Illinois (1985); United States Circuit Judge Edwiml A. T,lmm. Washington, D.C. (spedal <l'Nilfd, 1985); Unite<! States DiSTrict Judge Edw'lfd T. Cignoux of Mi'lInc (1986J; United Stales District Judge Elmo B. I tuntCr of M is~uti (1987); and joint recipients United St,1les Ci rcuit Jllvge Elbert P':1rf TUllle 0( Georgia, and United Stilles Circuit Judg~ John Minor WisdOm of l.oulsiaml (1988).
N, lee Cooper, a llartner In the Birmingham firm of Maynard , Coopt.!r, Frierson & Gale, fl.C., recently waSnOrllillatcd to ch,'lr the House of Delegates of the AmcriCilO Bar Association. Cooper's nomination will be voted on at the ABA Annuitl Meeting In Chicago In August. If he is elected, he will take o(fice at the close of that meeting, ,1nd preside OVN SCSSiOriS of the House of Delegates betWl'Cn February 1991 and Augu st 1992. The House of Delegates, with 460 members, meets twice yearly 10 est.,blish as'>OCialion policies. Its mem l~~ fI'1j)reSf!n t Vi\rious ABA. com· ponents, as well as st,l te, local, specialty and ethnic bar associations. Cooper has been a member of the House of Delegatt.'S since 1979, Initially represen ting the Blrmlngh.rm Bar Association and since 1980 represen ting t h~ Alabama Slilte Bilr. As a delegate. he chaired the ,·Iouse Drafting CorYlmiltcc on the Model Rules of Professional Conduct and he currently chairs the Select Committl..'e of the House. He ,1lso Is a form er member of the AHA Commission on ProfessioMlIsm and fo rmer eh;!ir· person of the ABA x'Ctlon of litigation. COOller received d bachelor of science degrcc In 1963 and a law degJl.'(l' in 1964 from the University of Alabama at Birrningh.lm, where he wa \ Dn editor of the A/.1bam<l L"W Review. He is a tru slee of the AlilQ.10lil l.Jw School Foundation and of the F,lt(ilh Law Society of the law school.
C arth elected fellow of co llege Thomas F. Garth, 0( the Mobile firm of lyons, Pipes & Cook, ha) oc't!n elected ,1 Fellow of the Ameri c.m Collegu of Proballl Counsel.
The American College of PrOba t~ Counsel is iln international .lssoclatlon of l;r.vye~ w ho have been rocognll.ed as outst,lndln8 praCl itionufS In the laws of will s, trUStS, cstllte plannin~ and estate administration. The College actively pursues improvemCf'lls Iti the administration in the lax and judicial systl..'fTlSIn these areas of IDw, in addition 10 providing programs of conl lnulng legal edu· cation fOr Its Fell(ffl~. Membership in the Collcg(', which is a posl of honor conferred bot' the pee~ of the newly-elcclro Fellow, is by invitation of the Board of Regen ts. SIMnes adm itlcd to A meri ca n Co llege of Trial Lawyers W. Stancil Stilrnes has become a Fclla.v of the American Col lege of Tllal lawyers. Membership is I1t' Invitation of the board of regents. The College Is a nllIlonal assaciMion of 4,500 Fellows in lhe United States and CanadD. Its PUfj)()SC Is 10 ImprOVll the standards of frial practice, the administration 01 juslice and the cth ics of the profession. The in· dUCllon ceremony took 1)laee during the reccnl annual ban. quet of the American College of Trial L<lwVCrS. More than 1,200 persons were hI atl(>ndi'lnce at this mccting of the Fellows in New Orillars, Looisiana. Starnes Is II partrlcr in the nrnl ofS tilrne~ & N chison In Birmingham, Alabama. Hil Is <III alumnus of Cumberland School of Law. •
169
Consultant's Corner The following is II reyiew of and commentary on an offi ce automation issue Iha l has current importance 10 Ihe 14... gal communi ty, prcll;lfl'tl by Ihc oHi( e automation consult .. n! to the Sl.lh! bar,
P,lul Bornstein, whose views arc nol those of Ihe ""Ie bar.
n eces~ rily
This is the fifteenth .. rUde in our "Consullanl'5 Corner" series. We would like 10 h{'ar from you, both in c ritique of the arUcie wlillen ilnd 5uggl'li1il)ns ur 1011ies for future articles.
I' tioners could share some common form s and the P.1. pracllliOllef) could as well, but d~ this juslffy, much less call for, a networked envlronmenl f The rule of thumb alight to be ~ If the malortty of the lilw~'Crs In iI fi rm use a common dillil base, then networking Is ccrtainly;m option to be considered (further). If there Is no malorit y, then net· workin g. for the sake o f linking te)(1 l)fOCessing. makes liltle ~onom ic sense. There arc other ways to share occasion· ally useful form s ancl documents, as in making a di sk COI1)' ;md loading it on
Networking in small firms-should you? laSI September I wrote an article In which I Sialed Ihal one of the genuine
1l.'Cnnologh:OII brcIlkthroughs of the '90s
W.lS the fact Ihal vendors had finally sol~ the reliability prob1cms of net· works for small firms. They also had
made progress in making them more cost cffective. Thill S<lid. should you con sidN 11 network for your firm?
Rationale for networking The two fundamental reasons for can· sidcrln811 network In 1I smn ll firm (Or any size firm , for th at matter) are the per· celved desil(lbilily of combining t(!);t and data bases, wQ-d procesSing and data processing. if you prcler. let us examine cOl ch reaSOn and then look <II Ihe e<:ol1omlcs.
Word proce~si n g It has almos\ become an article of faith Ihat It is "good" 10 be able 10 share fe)(1 among wQrking (secretarial) stations. Is itt Perhaps, if the text Is common \0 most of the practice. HCMt often Is this the casel Take a hypothetical five-person practice wi th I'M) real estatc pri.JClilionerS, n bankruptcy Pr.1C1itioner and two P.I. practitioners. How commOn Is the tellt baser Not Vl;!ry. True, the re.,1 estate prac·
170
60 rn~ t ci n
each secrelilry's system, or simply wdlk· Ing down the corridor and handing a disk to a co-worker.
Data
processing The wrm is m~ant to Include bill ing as well as other pract ice SUPI)()rl opplica-
lions, soch as docket control, confllct checking. etc. First, billing. Again, it is almost an Mlicle of faith :one 10 whi ch I subscribe) that It Is bolh emcient and 1081cal to h~\IC a secretary enter her law· yer'~ time Inlo whatever billing system ex· Ists (Including a manual one). That S<lid, does this nle""n )'QU hilVll 10 network in order 10 accomplish this vital ta skl Until ft.'ccnlly, perhaps so. NOoY, many of thc billing verldOf'S hllYC developed and relea sed satellite versions of their time slip entry screen formil ts. Thi s means Ihilt stilnd·alone W(lrk stations can be loaded with this sa tcilite progranl, enabllng Ihe keying of lime from each sec· retary's work station w ithout the ne<:essily of networking. Whal Ol oout other practice support applications/ There may be a basiS here. For cK<lmple, a P.1. practice (ni8ht want 10 network to availlhcmselvcs of fl,1. dilla base programs as well i1 S docket contrOl. likewise, an Insurance d(/cnst>practice might find the conflict checking application well worth the effOrt and cost of a network. To tlenerall ze, any specialized firm might hIM! sound rea sons for net· working in order to tilke fldv.lntilge of common practice supPOI1 1II)1)lil;atiO"s. Gelling there from h ere So, a network seems practical, based on a combination of te"l and d<lla processi ng needs. How do you go abou t chooslngl First 01 all, and perhaps laSI of all as well, do not ilsk a vendor if you should network . You might lust as well ask a bartender if he will sell you 11 drink . To be filir, there are some vendors who w ill " turn you down" if Ihey honestly think )Ou do not ~ a network. Do oot count on gelling orle of them on the phone. Gel some help from nnother firm who has gone the nelwotk rou le. SCi! if they are plc;lsed with their decision or somehCMt regret it. Ask about vt!ndof'S they cOflsidered and chose. You cannot
MllY 1990
be too careful In this regard. Do not bu y the eMy solu tion. You can network ten work 5tiu ion~ to an AT clone, bUI th e network will fall to Its knf!f'S whencvcr more Ih.1I1 three or four S4..'Crl.'" tari~ are usinglhe word processing program. !!takes il prtny (all' sized Ole Sl!1\'Cl' to accommodate oolh lext and dat,lWocessing with, say, len Sial ions. Typically, yOu will nt:ed 32 bit architecture, with Ihrc(! or four megl of main memory and 200 10 300 megs of mass memory. V\Qrd processing. In p~rt kular, is il terri ble "COfe hog~ th at put ~ a heavy burden on a file server. Summing up: Irl small environments (five or (ewer SIMians) do not do It even if there Is commonlliity of both text and data. In larger environmen ts, maybe, provldcxl th erl'! is commonl1 lity of Icxt lind data. As in any summllllon, one h.l$ to lump togcthcr lot of sl tulll ions. Sure, there lire undoubtedly c~ccpt lo n s to thc rule. If you think your situation Is somehow ~Irl jque Ihen please seck the adlilce of a colleaglle Similarly si tuarcd before goi ng the rOlfle. â&#x20AC;˘
,I
Mark your calendars for
-MobileWhat: Alabama State Bar 1990 Annual Meeting When: July 19, 20, 21 Where: Mobile's Riverview Plaza
LEGAL RESEA RCHERS UNLIM ITED, INC.
* Legitl rescltr('h find wriling.
* Invcstiglltion .
* seLEXIS rvices uyoihlble * Suret y
b ond
consulting
*' Services pcrrormetl h y ABA, J.D. graduates.
(800) 548-8835 (404) 473-8332 The Alabama lawyer
Robert S. Vance Memorial Fund A fund entitled (he Robert S. Vance Memoria l Fund has been established at the Universi ty of Alabl1mll Law School, the Judge's almn matcr. In Order to endow an academic chair i n thc judge's name, the fund must raise $600,000. Con tributions to the fund arc lax deductible. Checks should be made l)llyable \0 the University of Alabama law School Fmmdation , Indic.ltlng on the check and the COllcr lener that the check is Imended fO r the Vl1l1Ce Fund. Contributions should I~ nltliled to: AlyC(! M . S pr~Jeli Director of law School Dcvclol)mcnt Un iversity o f Alabama Law School P,O. Box 870362 Tu scaloosa, Alabama 35487.())82 QUl!Stions about the fund may be direc ted to Spruell, 31(205) 348--5752, or to Ma ry Nell Terry, at: Chambef1 of Ihe Honorable Robert S. Vance 900 U nited Slates Courthouse B rm ingham, Alabama 35203 (205) 731 ¡ 1086
171
Request For Consulting Services Office Automation Consulting Program
SCHEDU LE OF FEES,
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TE RMS AND CONO ITIONS
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----------------------------------------------------------------------------------------REQUEST FOR CONSULTI NG SERVICES OFF ICE A UTOMATION CONSU LTI NG PROCRAM
Sponsored by Aili bil mil St,l Ie Bar
TH E FIRM
Firnj~"~':m~'~ ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
Mdr(.'Ss Clly
Zip
Conta I person Number 0( l:myers
telephone"
litre
paral~al~
secretaries
others
OffiCes III OIher (111('Sf
ITS PRACTICE Practicc Arl!as ("10)
liTigation Real Estille lilbor
Corporil tC! Esr;l1e Planning Banking
MarITime Collections
r"
Number of clien t5 handled annuaIlY:-::====== Number of matters handled annually
Number of mallcrs pre~"":"~Y_"o~ pe~":.::=====: How oftcn do you blm _
EQU IPM ENT
C<IUi~"~'~'"~~'~(if~ '"~Y~)~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
Diltll processing e<luipmcn t (If any) Dictation equlpmcnt (If any) 'vVord processing Copy t.'quipmcnt (I f any) Telephonc C(lulpmenl
PROG RAM "4 of empha s l~
deSIred
Admin.
Audit
WP Needs AnalYSI)
Prcferrl'Cl !lnlC (I) WIE _ _ _ _ _ _ _ _ _ _ _ _ __
DP Needs Analysis (2) W/ E _ _ _ _ _ _ _ _ _ _ __
Mall this fC(IUcst for S4,!rvlcc to the Alabama State Bar for scheduling. Send to the al1entlon of Margaret Boone, cxecu tive llsslstant, Alabama State Bar, P.O. Box 671 , Montgomery, Al abama 36101. 172
May 1990
Opinions of the General Counsel by Alex W. lacllson, assista nt gener.ll counsel
QUESTION ." ~Ano,her
attorney Md I represent Ihe estilte of an incompe-
lent INOrnan. The time has passed for Ihe Ors! partial
~"Ie
men! and in undcl101king to reconstruCllhe acoounl il a~ars that ,he guardian has converlfxf in Cl«:ess of 580,000 of the ward's money. ':-\ssumlng the guardian ( <1nnol come up with tnc money, Ihc quesUon Is what do we do next. Obviously we cannot Milke ,IllY misrepresentation 10 the COurt bUI If she files a statement under 0.11h In cflcct admitting !he convcrsion then she immediately cxpo>es herself 10 ch'lI and perh'lps crlmin,,1 liability.
ANSWE R: Disciplinary Rule 7-102{A)(5J provides as follows: "(AI In his representation of a dien!,
il
lawyer shall no!;
(5) Knowingly make a false stiJlcment of IIlW or fact:'
Discil)linary Rule 7·102(A)(7) provides as follows : "(Aj In his representation of a clien t, a lawyer shall not
(7) Counselor assist hi s dient In conduct tha t the lawyer knO'NS to be illo!!al or frilUdulent," Discl plln,lry Rule 7-102(8)(1) provides as follows: "(B) A lawyer who receives information clearly establishIng that: (J) His client has, In the course of the ~prcsentation , perl>etr,noo ul>on a person or tribunal shall prompt y call upon his clien t 10 rectify the same, and if his cIien! refuses or Is unable to do so, he shall Withdraw from employmenl,H Disciplinary Rule 2·111{B)(3) I>rovidl'>s as follO'oVS: "(B) A lawyer ~prescn t irl8 a client before a tribunal, with its permission if required by Its rules, shall withdraw from employment, (lnd a lawyer rcprescnlhlHa d l!:!nt In other mattel1i shall withdraw from employment, if:
(3) He has recei\lCd information conh.>mplated by OR 7·102(B)(1)t Disciplinary Rules 4·101(A) and (B)(1) provide as foll()Y.IS; "(AI 'Confidence' refers to information protccu..>d by the allorney-client privi lege under applicable law, and 'secret' refers to other Information g.1Int.>d In the I)rofesslonal relation ship that the client has requestt,'CI be held inviolate or the disclosure of which would be embarraSSing or would be likely to be detrlmen· tal to the client.
The t\/abama Lawyer
(B) hcept as permitted by DR 4-I01(C) a lawyer shall not knowingly: (1) Revcal a confidence or secret of his dlen!."
1M:! ate of Ihe opinion thaI the information you Ilave conthe misappropriation or cOOYersion 01 $80,000 ollhe
c~nlng
ward's money Is a confidence or setret of ~r client, the guardian, and that the same cannot be revcaled other Illan a1 provided by Disciplinary Rule 4-101(C). ~ are of the fur. ther 01)in10111hal you may not prepare or present to the court on behalf of the guardian a partial settlement thm fall s 10 rcflt..>ct the Irue disposition of the ward's funds. In addition, since you now have evidence Ihat clearly est.lbllshes that your client has I>crpctratro il fraud upon a person (the wJrdl you must ca ll upon the guardian to reclify thaI fraud. If 'lle clien t is unable to COrfC(1 the fr<lud or refu ses to do so, ~u must withdraw from employment as provided b( Disciplln<try Rules 7·102(8)(1) and 2·111(8)(3). An attorney may nOI coun)C1Of' assist a clien t in the perpetral lon of a fraud. The Disci plinary Commission, when addressi ns si milar question s in the l>ast, has opined that a lawyer m;ry not rl.'VCal 11'1.11 his client has m(ldc preferential paym<!rlts 10 cmdltorS of the client's wholly owned corporation from monies due to a corl>orale asslgnC(l. The lawyer shou ld call Ul>on the client 10 rcctlfy the situation, ilnd should the client refuse to do so, he then should withdl'llW. (RO-B6-54) In R0-87·56, where Ihe cllem had commiued the crime of Slbom;uion ol l>C1jury, the Disciplinary Commission !)(lid tl'l<lt the lawyer could not tClieallha t infOlmation si nce it was a confidence or secret obtained during the representallon . The commission further held that the lawyer should aSSCfIthe .111· to'ncyfcllent privilege If questioned by police or I)rosecutorlal authorities and could tt..'SIify only after being ordered by a court 10 do so. The commission has held that the Code docs nDt m(lke di.closure of pasl crimes or fraud s by the client mandatory on Ihe pari of the lawyer when, having made a de!n.1nd pursu.mlto DR 7·102(8)(1) on Ihe client to correct the fraud, the clk!nr has refused to do so, IRQ·57·561 [R0-89·771
QUESTION ,2, 'I undertook repfCS(!ntallon of a wife in it divorce action against her hUSb.lnd, Another locallaw~r entered an appear· ance and represenled the husband . This case wa s 1)laced On a tria! docket with parties and their counsel ill>l>carlng atlhe approllrialc lime. Negoli,uions ensued {ll1d till agreement wa s suppos(.>dly rca chtod on all issues except thM of d 1Ud SUIl-
I pon. The Issue of child support was tried and submitted \0 the Dir.trict Md Dolneslie Ret3llons Court Judge of our counly. AI the limtl of renderin g" decision on
the disputed issues, the Judge requested 111m the husb<1nd's !;myer prelh1re a final dC(rI.!Q of divorce. AftN rccelvhlg a
signed copy of this decree I noted SC'JCral areas which did not conform to my un· derstandlng of our agreement. When
Ihese discrepancies could not be comple tely worked out between counsel, I filed a mol ion 10 set aside this dccl\.'(!. '" Ihe hea ring on this motion I p~ldcd Ihe wife wi th othcr counsel. The hus-
b.1nd's I~r pn'lYldcd the husb.lnd with other counsel. I have 1c§l lfioo as to my underswndlng of our i1greemenl ilnd the husband's lawyer is schedu led 10 \(lstify In thc ncar future. "My question Is. should Ihe decree
be
set aside and ,his case be again plact.-d the docket for Hi,ll, will it be mhlc.11 for me 10 fCprcscntthe wife after havIng previously Il.'stHied as noted a~" 00
ANSWER: Disci l)li nary Rule 5·101(6) Sliltcs follows:
as
"(BJ A lawyer shall not accept employment in contcmplatoo or pending litigation if he kno.vs or it is obYious that he or a lawyer In his firm ought 10 be cillled as a witness, except thm he may undertake Ihe employment and he or a la.... yer In his firm may tcs tify: (Il If the testimony will relate solely toan uncontested mat· ler; (2) If Ihe testimony will relate solely to a mailer of formality arId there Is no reilson 10 beIleYe Ihat substantial evidence wi II be offered In opposition to the testimony; (3) If the testimony will relate solely to the nlllurC and v.llue of legal services rendcroo In the case by the lawyer or his (irm to rhe client; (4 ) As to any maller, if ((..>fuSilI would work a substantial hardship on the client Ix>cause of the distinctive value of the liM'yer or his firm as coun$el In the p,lttlcular case."
Riding the Circuits E$Cambia County Bar Association receives certific ate (Th15 lener of January 18, 1990, was recei\lt.'<i by Circuit Court Judge Smdtey E. Byrne of the 21st Judicia l Circui t.) It Is my ple,lsure to Inform you thallhc Escambia County Bar Association has been selected to receive iI Certincate of Recognition In the American Bar Associ· ation's 1989 Law Day U.S.A. Public Ser· vice Award CompetitiOn. The award, a certificate mounted on a walnut plaque, will be sent to you as soon as production of the award Is com· pleted . My hearllest congratulill ions upon winning this award. We apl)reclatc Ihe fine work your organil:ation Is doing to
'74
promote better pub Ic understanding of the American legal system. Mary M . Waller,
Projects Coordinator, Public Service Award ~, American liar AsS()Clalion
Jackson Count y 8ar Association At a t«ent meeting. lhe jackson Coun· ty Bar Association e ccted John F. Porter, III, presldCflt. His mailing address Is 1-1.0. Box 1108, Scottsboro, Alabama 35768.
Morga n Count y Bar Association Norman Roby was recen tl y el(..'CIcd presl. dent of the MQrglln County B;'1r Assocla· tlon. Thc association also I>assed II rcsolutlon mourning the death of the j tonorable Robert S. Vance. •
Disciplinilry Rule 5·102{A) states as follows: " (A ) If, after undertaking enlplcrr mcnt in contemplaloo or pend. Ing litigation, a lawyer leilrns or It Is obvipus that he or a lawyer In his fi rm OU8h1lo be call<.>(i as a wi tness on I}(!half of his client, he sh.,11 wl1hdraw from rhe con· duct of the trial and his firm, if any, shall not continue represen· tation In the trial. except th<ll he may continue Ihe represenlalion and he or il lawyer in his firm may teslify In the cifcumstanccs enumerated In DR 5·101(8)(1) through (4):' We ilre of the opinion th.,t II would be permis~i ble for you 10 represent the wife if, in fact, tho decree Is set IJside and a nLow trial scheduled nnd further p~ided tha t you either offer no additional testimony on behalf of YOllr clienl or that, If you testify, ')QUr testimony falls within lhe categories delineatl.'<i In Disciplinary Rvle 5-101(BJ. As we understand the faClS as presented by you your testimony was to an issue Ihal would be completelydccided upon a determination by the court of the motiOll flied to have the decree sct ilside. For purposes of this opinion we ha~ acted upon Ihe assumption Ihat any dis· agreementS over this decree, and any resulting testimony It'galding the same, will hiM! been resolved bv the court and will not Ix! an Issue In the upcoming trial. If, h(lw(l\lCr, this dispute remains In COntest and your testimony once "gain becomes a necessity, then 'Ne are of Ihe opinion tha t you must carefully review the provisions of the Disciplinary Rules cited hereinabove 10 determine whether it would 00 ~lhlc;l lly permissible for you to proceed <IS trial counsel . In th.lt regard, and in tl\(' f!'\.'Cnl It becomes necess..lry for you 10 withdraw, we would further ildvise you of Ihe provisions of Definition 7 of the Code which state at follows: "(7) Unless the conlext otherwise re<lu irH, wherever In these rutes the conduct of a lawyer is prohibited, all lawyers associated with him arc also prohibiled." IRO·89·49)
•
May 1990
Recent Decisions by John M. Milling,. Ir., and David B. Byrne, Ir.
Recent Decisions of the
Supreme Court of AlabilmaCivil Constitutional law .•. Acl no. 67·162 valid t!vc n though enacted prio r to Amend· ment No. 473 b p;Jrle Soutllern Railway Co. (In re: Mintz II. Soulllern Rai/wily Co., 24 ABR 335 (NO\'Crllbcr 21, 1989), l'eti· lioners are foreign corpora tions qual. Ifled to do business In Alabama and were doing business In Je(fcrsorl County when suits were flied. Respondents are non·residents of Ala· bama secklnK money damages under the FELA for Il'lurj~ suffered outside Alabama, retitionel1 moved to dismiss the camp aints based on amend· ment no. 47] to the Alilbama ConSII· tution ilnd act no. 87·182, Alabama Acts 1987 (forum non conveniens). The! tri al cout! denied the motions 10 dismiss, and defuodan!s filed p(.'1ilions for wri ts of mandamus. The SUI)reme courl granted the wrilS. Acl no. 87·182, mnendcd §6·5·430, Ala. Code (1975) to require the coutts to apply the doctrine of forum non conveniens in detCfmlnlng whether to accept or decline to take iurlsdlcllon of an aClion based on (I dilim arisi ng outside Alabuma. However, act no.
The Alabama Lawyer
87·182 was passed beforc amendment no. 473 was adopted and ra tified. Amendment no. 47] ;mended section 232 of Ihe Alabama ConSlltutlon so that foreign corporiltlons are trea ted like domestic corpor.1t!ons (or pur· poses of V(!nuf!. The supreme cout! was asked to determIne whether the subsequen t adoption of amendment no. 473 now permits act no. 87·182 a field of operon Ion In a case in which foreign corporil!ions arc sued In Ala· bama on a C,luse of acllo11 accruing ou tside Alabama. The supreme cout! recosnlzed that generally (In act of the legislature not authorized by the Con· S1ilutlon OIl th e lime of its p.15sage is absolu tely void, and, if not m'f,!nacted, is not Villida ted by (I subsequent amendment to the ConstitutIon. The
supreme courl noted that thCfil arC f\o\(l exceptioos to this general rule. Af· ter discussing Ihe two general exceptions, the court announced a third exception; Where a statute is enacted In nntlclpatlon of il constitutloll[ll amendment offered simultaneously with it, and the SMlute and rhe proPQS(.>d amendment are debatt.'d and COnsidered together In the same session of the legislnturc, the subSC<luent adol>tion of the amendment by a vote of the people will serve to V<llida tc the stiltute, Municipal corporation $ . ••
county has duty to monitor incarcerated Juvenile offenders to prevent Ihem from injuring them selves
Dallid B. Byrne, /r., ;s a graduJte ofllO
John M , Mi/lins. Jr., is a member of the firm of Hill, HiJ.', CMtCr, Fran·
co, Colc & Black In
University 01 AI/I·
barna, where lie
Is II gradullte of Sprifig Hill College and the Unlwmi,y of Alabama School of law. Mil/ing covers the civil portion
received both his undef8fildudlC and I/lw degrees. He is II member 01 the Mont80mery firm 01 Robison & lklser ilnd covel1 lhe criminal panion oflhe
of tile decisions.
decisions.
Mo",gomery. He
175
Keefon v. Fayrfw County. 24 ABR 552 (December 15, 1989), Keeton, a juvenile, was Incarcerated In the Fayette County Jail. He was subsequently found dead and had apparently hangl..>d himself with his belt. His f<lther SUL>d lilt! coul'lly for hi s wrongful death. The trial court gmnted the county's motion for summary judgment, and plaintiff appealed. The supreme court f'e\.'ersed . The supreme court noted that §11·14.IO, Ala, Code (1975), was amended in 1982 and l)rO'licles Ihilt "eilch county within the State Shil ll !xl required to maintain a jilll within their county.N The supreme court also notoo that It had not Inter· preted the phr.ue "maintain a jail:' The supreme court held that bv using the phrase, the legislature Simply intended to rC(juire the county commission to keep a j(lil and <III c<julpmcnt Iherein in a stntc of repair. Under §14-6-I, Ala. Code (1975), the sheriff has legal custody of the jail and all of its prisoners. Plai ntiff alleged that Ihe county was under a duty to properly supervise, care (or and provide adequate detention for Ihe juvenile, and that It failed to do so. The supreme courl noted that there was evidence th(lt the Jail's audio mo nitoring equipment was not \YOrking. The sUI)rc me COUrt also noted tha t one reason for requiring Ihe monitoring of a juvenile offender confined loa jail c"lI ls to make certa in tha t the JU\o1:!nlle does nOI Injure himself. Therefore, the f~c t tha t juveniles may at· tempt to harm themselves when in· carcerated was reasonably foreseeable as a matter of law and summary judgment was Improperly gran!ed.
Preliminar y injunction , , , petitioner must demonstrate that offending act o r operatio n is nuisance per se McCord v. Gleen, 24 ABR 452 (December 6, 1989), McCord purchased a P.lrce1 of land adjoined by property ()YIned bv Green , McCord informed Green that he intended to build a lumber treiltment plan t Thilt would utilize a coal tnr-creosote SOlutiOn to treat the lumber. After McCord e~sen tl a lly completed the plant, Green filed suit and sought a preliminary injunction on the grounds that the plan! could be a nul$ilnc(>. AI the hearing on prel minary Inju nction, IWO e>cpertS testified thm the plant would p~ 176
dute odors detectilb'e from 4()()'900 fee{ ilWirf. The court granled the injunction and found Ihal the arlt icip.lted nui$ilnce could be enjoined under §6-5-125, Ala. Cock (1975), and implied thn! this section could be utili:ted without sh()Vy'ing that the act was a nuisance per sc. McCord appealed, and the supreme court r£!".'ersed. The supreme court nOted that the granting of I nj un ct i ~ relief In general, and the inj unclion of anticipated nui. sances hI particular, are extraordinary powers thm must be cautiously and sparIngly exercised, "Ithough §6-S-125 authorized the injunction of an tici pated nUIs.lnces, such injunctions should be denied unless the plaintiff shows to a reasonable degree of certainly thin the an· Ilclp.lted aCI or structure will, In filCt, constitute a nuisance, A Iluisance per se Is an act, occupation or structure that is a nuisance at alt times and under any circumstances, regardless of location or surroundings. Where the feared Injury is ill best speculative, an injunction under §6-5-125 would be undul y harsh.
Torts . ..
as it applies 10 modified genera l purpose machine /ohnson v. Niil8<1I'il Machine and Tool ~\brks, 24 AR 247 (Novemoor 17, 1989). Johnson was injured while oporating an Industrial die press mnn ufactured by Niagara, The manuf~Cluring process required JohnSQn to ttmovc waste steel at the cod of the cycle with a hand tool or with the naked hand. Johnson reached the end of thc cycle ~ nd hit the stop butIon and reached in to retrieve the waSle. The l)feSS continued to operate and amIMated his ha nd. He sut!d NlaSolf1l under the AEMLD, The trial court gl<lnled Niagaris mOfion for summary judgment, and Johnson appealed . The supreme court affirmoo. Niag.1ra argued that the press had been substllntlally modified afte r it left Nlag.1ril's control. Nlognra il lso argul>d th nlthe press was sold In a Nnah:d " conflgurJIion and was modified and Integrated into the buyer's particular system, Niagara slated that it was the buyer and nOl the manufaCluttr who designed the system Into wh ich the press was inAEMLD discussed
legrilted . The supreme COUtt noted that il has been the custom in the Industry for the purchaser of a general purpose machine, such as this press, 10 aSS\lme resllOnslbmty (or snfety devices, such as a gunrd, Moreover, AN SI standards and OSI-IA stilndilrds plnce Ihis burden on the purchaser-user of such equipment. The SUI)reme court concluded that Niagara should not be charged with J duty to make safe all possible applic.... lions of Its generil] purpose product. P0ssible applications of general purpose machines in it given nmnufacturlng process, not designed by the manufacturer, are unforeseeable as matters of law,
Recent D eci sions of the
Supreme Court of the United States Grand jury secrecy Bulfcrwonh v. Smith, 58 U,s. lW 4363 (March 21, 1990)-May II stale requirf,l Pl'Ople, who appear before grilnd juries as witnesscs, to keep thei t tl..'Stimony a secret forever? The Supreme Court una n· Imously said no. The Cout!, In an opinIon by Chief Justice Rehnquist, said that Florida's Grand Jury Secr«y Act violated frcc speech rights. The responde!lt, Smith, a reporter; testified before a slate grand jury about alleged Improprieties committed by c;ert ~ln public officials, At the conclusion of his testi mony, he was warrl(.>d that If he revealed his testimony in lilly manner, he would be subject to criminal prosecution under it Florida Slalute which prohibited a witness from (NCr dlscloslnglestimony given before a grand jury. After the grand jury termln~led its in\o1:!sligiltloll, Sm ith wanted to wrile about the Investigation's subject matter, includIng his ONn grand jury tes~ mony. AccordIngly, he nled suit in federal district court seeking II dedaraiion that the Florid~ slatute was an unconstitutional abridgement of speech and an Injunction preYenlinll tht! Sla!C! from prosec uting him. ThC! district court grJllted 5um mary judgmellt In favor of the state. The Eleventh Circuit reversed, holding that the statute was unconstitutional 10 the extent that It applied to witnesses who speak about their ()YIn testimony altel the grand jury inveslillatlon was terminated .
May 1990
The Supreme COUrt's holding gives us a bright·line test regarding Grand Jury Secrecy SlalUtes. Specifically, the Court held that the Florida Grand Jury Se<:recy Act, §90S.27, viol<l,ed the Fll1t Amend· ment Insofar <IS It prohibits a grand jury witness from disclosing his own /eslimony Ilher the 8rand lury term has enckd. The opinion authored IJi Chief Justice Rchnqulst interestingly concludes that the interest advJncoo I1t' Ihe portion of the Florida stJlutes struck down Me not sufnclcnt to ~rcomc a First Amend. ment rlghl to make a truthful stalement of Information lawfully oblalned, and Maled, ''The bank extends not merely to the life of the Grand Jury but Into the Indefinite future." The Court further noted that the federal goYCmment in most states Imposcs no disclosure restrictions on grand jury wi tnesses, apP<1rently not even while <In Investigation Is in progress. The decision does not affect state laws that bar pe0ple (rom disclosing their grand jury testimony while Ihe secret panel's inYCStigation is adl\'e. In it concurring opinion, Justice Scalia said he understood the ruling to leave unanS'AlCred whether a stale could prohibit grar\d Jury wllnesses from disclosing the fact that they were called before the panel Or to disclose what the grand jury Is InYestigating. This opinion strongly suggests Ihat Ala· barna's grand jury secrecy statute also would be unconstitutional and In violation of the First Anlendmer\l to the extent that it prohibits a grand jury witness (rom disclosing th 'r own testimony after the grand Jury's term has ended. Fourth amendmenlnol applicable to foreign searches United Slates v, '.t!rdugo-Urquldel, 58 U.S. LW 4263 (February 28, 1990J-00 United States law enforcement tlgent5 need search warrants before conduCting searches of property owned by nooci tizens and located In foreign COul'ltri(>sl A divided Supreme Court said no. MC)(ican national~ living abroad do nOt have the same Fourth Amendment rights as Unltl.>d Sta tes cit lens or aHens living In this country, the Supreme Court Silid In an opinion authored I1t' Chief Justice Rehnqulst. In holding that the Fourth AmendnlCnt d~ not apply to search lind seizure I1t' DEA agents of property The A/a/Ul ma LawYer
()\.'Ined IJi non· resident aliens and located In Mexico, the Court seemed to be focused on the term ·,he people" con· tained withIn the Fourth Amendmen t. This reasonIng suggests that "the people" refers to II class of persons who arc part of a national communi ty or who have otherwise developed l ufficlent connection with the United States to be considered a part of th"t communIty. The Chief Justice observed as follows: "Situations threatening 10 important American Interests may arise halfway around the globe ... [Ihatj l1.'quire an American response with armed rorte. 1f tht'rejlfC restrldions on searches and seizures which occur In Ident 10 such Ameril.dr1 oiLtlon, they muSt be Imposed IJi the politIcal brancllC!S." Dilution of Chimel v. CiJ lilornia Maryland v. Bule, S8 U.S. LW 4261 (February 27, 1990)-00 pollee need probJble cause to rear for their s"rety to conduct a sWC!(!ping, w"rrilntless search after making an in-home arrestr The Suo preme COUlt, in a SCVCn-to-two decision, said no. In an opinion authored IJi Justice White, the Court said that pollee may search throughout a house when they hiIVC a reasonable suspicion there is a hidden danger to the westing offlcers. Specifically, the Court held that the Fourth Amendment permlts a properly Umilt'd protective sweep In conjunction with an in-home arrest when the searchIng officer possesses iI ~asonable belief based on spe(.iflc: and articulable rads that the area to be swept harbors an individuall>osing a danger to those on the arrest scene. (Citing MlchlSfln v. I.On& 4GJ U.S. 1032; Terry v, 011/0, 392 U.S. 1) White's opi nion, hO\vever, cau tiously note5 as follOW'S: \.YC should emphasile th(lt such a protecti~ sweep 1I1med at protecting the arresting officers, if Justified by the circumstances, is nevertheless not a full search or the premises, but may extend only to a cursory inspection of those sl)(lces where jI person may be (ouod." N• • •
In Chimelv, California, 395 U.S. 752, the Supreme Court held that In the
absence of a search warrant, the Justifl. able search Incident to an In-home arrest could not e)(tend beyond the arrestee's person and Ihe area with n which he might have obtained a weapon. The rule In Ch/mel is distingui shed by Ihe Supreme Court In Bu/c. First, the COurt masoned thaI Chimel was concerned with a full-blown, top-to-boUom search of an entlm house for evidence of the crime ror which the arrCSt was made, nOf the more limited intrusion oontCml)lated by a protective sweep, Second, Ihe Justification for the search Incident to the armst In Chimel was the threat posed by the arrestee, nOI the safety threat l>Osed IJi the house, or more properly by un· seen third parties In the house. WrltinK for himM!lf dnd Justice Milrshall, Justice Brennan said the decision gives police officers too much discretion. "Pollee oWcers searching lor potential ambushers might , , , open up closets, lockers, chcsts, wardrobes, and cars, and peer under beds and behind furniture:' Mandatory death penalty Blystone v. I\mnsy/vania, 58 U.S. lW 4274 (February 28, 1990)- MllY states make the dC<ll h penalty the only possl. ble puni shment (or some murderers without violating past Supreme COUll rulings banning mandatory death senlencesr The Supreme Court, in a sharply divided fi~to-four decision, said
,.,.
Irl an opinion aulhort.'tI by Ihe Chier Justice, the court upheld a P(!nnsylvania llJW that says sentencing Juries ~must" impose a death sentence if they flnd at least one aggriWiIting circumstance and no mitigating circumstances. In discussing the Pennsylvilnla sl"tute, Chief Justice Rehnqulst said the mandatory aspe<;t o( Its language docs not mnke thc law an automatic or mandatory one. "Death ... Is Imposed only afler a determination that the aggravating circumstances outweigh the mitigating (actors and therebot P<lSS Eighth Amendment scrutiny:' The Court, in 8lYSlOne, focu!oCd on that portion of the statute which permits thc capi till sentencing jUry to consider and give effect to all relevant mitigating evi. dence since it d~ not unduly limit the types of mitigating evidence that mlly be considered. DCJth is not automatically Imposed upon convictions for certain types of murder; it is Imposed only after
"7
a detcrmlnaliorl th at the aggravating cir· cumstilOCes ourM;ligh the mitigaling ones prescnt in the particular crime commi t· ted I7t' Ihe pMi<:ular defendant or Ihal there are no i uch mitigating circum· stances, Glvcn the range of the jury's discretion to consider any other mltigat· Ing factor, the Court found thllllhe Penn· sylvania statu te was sufficient, under Lockett v. Ohio, 438 U.S. 586. Twi st o n
8alson
The SUI,reme Court, in 1986, ruled thaI exclUSion of polt!ntial jurors I>ccause th<.'Y arc Ihc Sllme race as the defendant violates Ihe equal pmte<:lion clause, How<.'\!Cr, the justices h;we never said Ihllt race-bOIsed exclusions are unlilWful if Ihe el{cluded prospeclive jurors arc of 11 different ra ce from the ddend,Ult.
Cu stodia l interrogation-ass;lUll on
/-Iolland v, Illinois, 56 U.. lW 4162 (lanuMY 22, 1990)-1$ a dcleodant's Sil{th Amendment right violated when p(()$(... cutors exclude prospective jurors because of tht.!lr ran.>? The Coull, In a five-to-four \/Ote, said no. In an opinion authored by j usti ce Scalia, the Court sa id that such exclu· slons do not violilt e (l defendant's right to a jury drawn from a reprcsel1 t~ t l\IC cross·section ci the community. H(JY.'o l.'W t, justice Anlhony Kerlrledy, who Joi ned that rcwl! in a concurring opln. ion, also IndiC<ltcd that he agrees with the Court's foUl dissen ters th,lI such ell· elusions may \/Cry well viol;lIe a dcfen· danl's Fourteen!h Amendment right to equal protcction.
Michigan v. Ja cksort M lchlgJn v. HarVf)', 58 U.S. LW 4286 (March 6, 199O)- ln Michig;m v. Jackson, 475 U,S, 625 (l986), the Court est"blished a prophylactic rule IhJl once a crimi nal defl!ndant In\/Okes his Sll{th Amcndmcrll right to counsel, a subS(." (IUent W.1i\ler of that right-even if voluntary, knOWing ilt1d Intelligen t under trJdlllonal standard s-iS presulIled Invalid If secured pursuan t 10 pollce.lnl. tfated converSa tion. In that case, the Supreme Court held that statements oblained in viOlil tiOrl of that rule may not be <KImitl~j as subsrantl\le evidence duro ing the prosecution's C<lse-In-chlef. The Issue prcsentC'd 10 the Supreme Court, in Michigan v. Harvey, is whether the prO-
secUlion may use a sliltemeni taken In violation of Ihe lackson rule 10 Im j>each a defendant's fal se or Inconsistent teslimony. In ,m opinion authored by the Chief Justice, Ihe Court said yes. The Court held thai a Stiltement to p0lice I"ken in violiltion of Jackson may be used 10 Impeach a defcndant'S tcstlrnOrly. The /'l cksOfl rul e 15 uascd ul)Qn the Iden· tical "prophylactic rule" announced In Edwilrds v. Ar/l.ona, 451 U.5. 477, in Ihe con tCXt of the Fifth AmerKlmenl lJfivilege against sclf·lncrlm lnatfon during c;;us. todiallntcrrOgJtion, Specifically, the Supreme COlIfT noted that Harris v. New ',brJr. 401 222, and subst.--q~t ~ hold that \/Olunlilry st"tcmcnlS taken In violation of Fifth Amcndrnent prophylactic rules, while inadmissible In the prosecu tion's casc-In-chlcf, neverthelcss may be used to ImilCach the dtlfendlltlt's conflietlng testimony, The m~jority concluded Ihat there was no rC(lSOfl for 11 diffcrent rul e or result in Jackson. The bottom line in these caS(!) 5(.'(>ms to focus on 1he "search for truth in a criminal case" ralionale which outweighs the speculative possibility that exclusion of l ....idcnCc might deter future violations of the rules. •
u.s.
Notice of Federal Tax Lien The Alabama Uniform Federal T.ll{ lien Act I>ec.. me effecti\/C January I, 1990, There are two concerns thaI Ihe Inler. nOli Rcvcnue Service con$lders to bc of intereSlto Ihe memberS of th e AI,,!J:1ma State Bar. Firsl, the act changes Ihe place of fiIlog Notices of Fcdet;ll Tal{ liens as It relates to personal property on the fol lowing entities, from the judge of prob.:ile offices 10 the office of the secrClary state: I. Corpor,ltions or partnershi l)S (as defined by Feder.. llnlernal Rt:"VCnue Ser· vice laws) whole principal exccuti\le offi ce Is In Ih ls slate; and
or
178
2. Estales ,1nd trusts. The place of filing Not ices o f Federal ~rx liens for rcal property on Ihe above> entities con tinues 10 be wi th the ludge of prouatc In til(! COU,1ty where the real prOI>crty Is locmed, Second, the act changed the 1,Iace of indClCing all Noti ces of Feder.. 1Tal{ liens filed with the judge of prob.lte office aftcr janUtlry 1, 1990, to Ihe UnikNm Commercial Code index in the coun ty where the lien Is filed . II Is clearly understood thm the UCC Index has been for personal property In Ihe past, Me! the filln!! of lax liens Into Ihis indel{ could causc puten tial prob-
lems (or tho se researching Iltle to property and encumurances, t11{ liens arc tell1l)Orar ly being crOSs. indexed Into real prOI)Crty records in some counties In order to provide the !!eneral public wi th further notice of the existence of IRS 1011{ liens. O n real prOperty, the tRS considers it to be legally suf· ficien l when a notice is indcl{ed in the UCC records. •
If you have any queslions on this, please conlact Cli ff W'hllely i1t (205) 73 1·1248.
Ma y 1990
Legislative Wrap-up by Robert l. M cCu rl ey, Jr.
The Alilbama Leglslarum has before 11 over 1,500 bill~. The productivity of the lcglsltuurc Is ohen mcasurtod by how rnarl}' bil ls arC passed, hOWC\l(!r, it may also be Judgtod by hOYJ many they kill. We arc like all the Olhor Slales this year, Our legislAtive C'llcndars rclie(1 the Wilf on drugs, Joorl ion, the environmcm, loc<11 leglslalion and curren t hot topics as fillS burning. bombing of officials, etc.
The Governor's program prim;uily is a P3ckagc of bills which concerns criminal 5<1nCIlons for drug and alcohol ,.buS(!. In all there are over 40 "drus" billS. The aborl lon Issue has been thc topic mOSt discussed and <M>ldcd. There are approKimmcly ISO bills concerning abortion Issues. Thousands 01 peoille have descended upon the stale house to show their support or opposition to the legislation. Because abor'1ion is so controYersial it Is doubtful th.t many bills of any kind will be passed this election year. In each of Ihe last few sessions environmenTal i s~l.les hil\ll! increasingly been II topk of concern. The regulation of hnzardous w;lste, recycli ng and lillerlng are all topics of bi lls. Stalutes of limitations haVtl become a popular hem of legislaHon, Architccts, engineers and bl.lildcrs arc seeking a seven-year sr;J1ute of repose, and the materialman <lnd muc h ~ n iC5 liEn statutes are being revised. Service of process for evictions most likely will be modified to I>rovidu th at If personal service Is not pc rfCCIt.>d, therl tI Copy should 00 left at the door of the premises and a copy mailed to the last knO'Nn address of the defendant. St:!cklng immunity frorn liability arc such ""Iunteer organl.l:atlons as volunteer fire depattmems and municipal non-profit organizations, while liability would be limited for other state and local government agencies. The Alabama law Institute has three bills before the legislature. The Adoption bill, which is endo~ by both the probate Judges and the Alabama Department of
The Alabama Lawver
Hum;rn Resources, h:ls drilWn opposition I1t licensed child placing ag(mcles. Amon!!. other things the :ldoption bill rf!quires the licensed agencies to recclve court approval for their charges. lnwycrs may charge nn atlorney's fee for services but may not charge for the placemerl\ 01 a chUd In a private adoption , The Securi ties revision modernizes the law of securities ,md for the first time requires the registr.ll ion of "nnancial advisors." The Institute's third bill is a coml>lete '"CVision of the Condominium law. The laSt day the Legislature could meet was April 23, 1990. The first primary election date is June 5, 1990, with the run-off SCt for June 26, 199Q. For further InfOrmation wrr te Atilb.1ma Law InstiMe, p.o. Sox 1425, Tuscaloosa, Alabama 35486. â&#x20AC;˘
Rooert L McCurley, Jr. Is Iha dlf&CtOl 01
100 Alaooma Law
InS/llvl6 81 IhtJ VniversJl"/ of Alabllms He rectJived hiS
vndorl1radV8te and law
doflr&iJS from file
Vn/versll~
179
WARN Act Requires 60 Days' Notice The Worker Ad justment .;Ind Retrain ing Notification Act (WARN) requires bu sinesses Ihat dose, d islocating 50 or more workers, and buc;i ness€'s that permanently layoff 500 employees or omHhird of their work force (and at least SO people) to give a 60-day written notice to the following three entities (or groups):
Employees or their representa tives, 2) l ocal government to which they pay the most tax, and 3) The Stille Di slocated Worker Unit. 1)
There is no federal, stule or loca l agency charged with respon sibility for en forcement of this law. The Jaw specifically ~tatcs that enforcement will be through the United Siaies di!>lric! courts. When noti ce is required but not given, a suit must be filed by either an employee or the local government, in order to recover pay in lieu of notice or to assess penalties. Many companies, especially smaller ones, 51ill may not be aware of these requirements, which have been in eUect since February 1989. If "ware, they ~till may nul kn(lw whom to notify or the exact content required in the written n ot i ce~. Specific requirements of the WARN Act may be found in the act itself, Public l aw 100·379 (29 U.S.c. 210 1, et seq.). The Depa rtment of labor published final regu l a ti on ~ on April 20, 1969, in the Federa l Register (Vol. 54, No. 75) . The regulaticlns appear £1120 CFR Part 639. The State Di slocated Worker Unit will furni sh information on the act but cannot provide specifi c .1dvice or guidance with re~pect to individua l situations. Shou ld clients request assistance yOll Oldy wdnt to call thi s unit in Montg(llllery (205) 264.8800 for a copy of the acl. Direct the slate notice to: Alabarn<l Department of Economic and Communi ty Affair.; State Di sloca ted Worker Uni t P.O. Box 250347 3465 Norm;tn Bridge Road M(lntgomery, Alabilma 36 125-0347
180
May 1990
Memorials
Charles Sterling 8Jbcock- Sheffl eld Nlmi ucd: 1962 Died : February 11, 1990 William Morris Bec:k. Sr.-fori Payne Admi1ted: 1932 Died: February 26, 1990
Evans Dunn- Birmingham Admitted: 1916 Died: December 20, 1969
leland Gr.lnl Enzor-Andalusia Admitted: 1949
Died: March 9, 1990
Walter Joe lames, Jr.-Haleyville Admitted: 1950 Died: January 19, 1990
(OIONli ( HARII, ,II RIIN(, B路\IH O( K Coloncl Charles Sterling Babcock, 52, died February ]1, 1990, in Sheffield, Ala-
b;lIna. He was a native of Shcmeld and a resident of the city al Ihc time of his
death. Babcock was a gradulltc of ShcfOcld High School. He recel"'-'Cl hi) bachelor's degree from Florence Slilte Collcge (now
The Alabama La wyer
the University of North Alab;lma) in 1960. In 1962 he received his law deg~ from the UniYersilY of I'Ilabama School of law and W,l S a member of Phi D<!ha Phi legal fraTernity. Upon graduarion from I....... school, Babcock f!nlC!roo The United Stales Army Staff Advocate Genera Corps, He was certified as trial ancl cI(.'/'ense counsel In 1963. In 1968 he was certified as a militOlry judge. He was admitted 10 practice before the courts of the State of Alilbllrna, United Stales COUll of Military Appeals, Unltt>d States Army COlirt of Mlllt.Jry Review ancl the United States Supreme COurt. During 8I1bc/Xk's militilry career he served as stilff judge advocate in QUi Nilan and CaM Rilnh Bay, Republic of Vietnam, 1971-72 . He served the Eighth U.S. Army in Korea as a mmtary judge in 1979-80. He was awarded the Nationlli lA>fensc Service Medal, Vietnam S<!rvicl! Mt.'dal (three campilign~) , Vietnam Campaign Mcdal, Vietnam Cross of Callantry with Palm. BrOnte Star, Army Commendation Medal and Meritorious Service Medal. On December 31, 1983, Babcock rt." tired as military judge al Fort Gordon, Gt.'Orglll. He Imrn(.'(!itltely entered the I>rlyate pr.l"ic拢! of law in Sheffield, Alaba mol. lmd remained aclive in the practice of law until his ilIl'lt!ss forced him to relire 11'1 1988. 10 his friends and associates Babcock prcfernxl to be known simply as Chllrles. HI) WilS always eager 10 hell) another l:lerson. judge George E. Carpenter, district court of Colbert County, Alab..1ma, recalled thill, "Chilrles was always interested in how other people 'NCre doing rather than thinking of himsclf." Charles Cf'Irlched all whose Ii~ touched his, He is survi'lCd by his wife, jim, ancl their three children .
- Patl., A, Steele President 17th Circuit Bar Associillion
111('11 \1 (1 ,\Uk. j lldgc leigh M. Clark died at his home In Birmingham AuguSt 11, 1989. Judge Clark was a lifetime residen t of AJill>.lm<1. He W,lS born in Auburn In 1901 lind lilIer attendC!d Highlimd Home College, a junior college located in Highland Home. Judge Clark's father WilS president of the college at [ha t Time. He then at路 tendt>d Alabama Polytechnic Institute (now Auburn) frOIl\ which he received his undcrgmduate degfCe. He received his Iilw degree from the University of Alabama. A modern history of Alabama would not be complere without considerable reference to Judge Clark's family background, His mother, Willie Gertrude little, was the first coed \0 00 admil1ed 10 AlilUilma Polytechnic Institute. Willie Gertrude Ullie and two other young ladies enrolled at Polytechnic blStitult! on the day femilles were fi~t permitted to enroll . Each of them gradu;ucd two YCill'J later. Linle W,lS the oldest of the three and she, for that reason, was permitted to be the nrst onc \0 be admitit'd. She Is now rememoored at Auburn because one of tile campus dormitoric搂 bears her name, Judge Clark's fa ther Hk~se was a grilduate of Alabamil PolytC(hnic In ~' i-
181
lute, and his m~rriage to Ms. Llule constituted the first marrlage betVv1!en t~ graduatl!S 01 that University. Judge Clark's father taught In the college.1t Highland t-tome for many yea~ He also taught in the public 5chools of the State of Alal>.1· ma, Including Auburn Unill(!rsity. He finished hi s work life working for the Alabama Highway Department as nn en· gineer, where he played a big part in the devclol)ment of the state's highway SY5tem . Judge Clark's patcrnol grilndf[lther w,lS a circuit judge in Ceorgla during the reconstruction years following the Civil W<lf. Judge Clark marril!d Evelyn Staggers, and they htld one daughter, JcMI Clark MarShnll. Both ladles surville him. ~ry few lawyers have ever contribut· ed to the legal profession the way that Judge Clllrk did . After h[lving been lid· mined to I)rilctice In 1923, he entered the gcnerill prilctice of law with Rubin Wrigh t in Tuscaloosa. Wright later wa s elected to the circuit bcr'ch, a.,d Judge Clark Came to 8irmlngham and entered a general pract,ce with D,G, Ewin8 and Dan Traywick. In 1934, Judge Clark wa s elected to the circuit bench in JeffelWn County and except for three yea'" of military service for the Judge Advocate Geneml Department during IAIorid W,lf II, served on the bench until 1951, nl whi ch time he voluntarily relire<! to reo sume the prlvJte practice of law, As a judge, he was highly respected by the lawyers for his ~nowledge of the law and his good sound judgment. He wa s made a member ortne firm of Cabaniss, John· ston, Gardner .s. Clark, w~r(J he bl!c.lmc known as an outstanding trial anomey, spccif'llizing to a large degree In the derense of r.lHro.1ds. After he retired from aCllve practice In 1973, he wa s appoint(.>d II supernumerary judge ;lnd WilS aSo Slglled to the Alabama Court of Criminal Appeal s, He rtmained in this capacity until 1988, when he finally retired from all legal aClivilics. Judge Clark's mcmoriurn was written during his life's activities and by those who know him well. For 53 years, Judge Clark taught torts at Ihe 6lrmlng'lam School of 1..1w. He probably could have laught al any law school In Ihe country but he chose to f\!main III the IJIrmin!:Sh<lm UlW School. Af·
182
ter fini shing a hard day in court, he would drive to the courthouse to leach his torts cla ss. He did thi s as long as he was able to drive, and eYen then, Mrs. Clark, who wa s alwlfYS faithful and loyal to him, would drll>t! him to the courthouse and one of his students would drive him home. During these 53 yeafS, he taught scvcral thou sand students. tl is felt thn! cvcry one of his students wa s blessed by Ihe knowledge, character and gcntlene~s of thiSgreat IlIWycr. The 1981 senior class of the Birmingham School of law, In a resolution l>assed In hooor of Judge Clark, correctl y described his character In the following word s: "Judge leigh M . Clark is hereby given an honorary degree of juris doctor from the Blrm· ingham School of Law with all the dghts and priviteges hert.'1O and shnll hnve a permanent place in our hearts for the S(holarly gcnrlcrlcss he hns sh(MIn us. We arc thankful to him for giving us a model to emu laIC in the field of law, one who has coorage bot not tou8h",.'S~ who has kindness but ncvcr weakness, who shows his strength Ihrough his lOY(! for God, his family, his fellow man and the law," Judge Clark's fclll)W circuit Judges hon· ored him by electinll him president the Aillbama Assocla tiorl of Circuit Judges. His fellow !rial lawyers honored him by electing him as a fellow In the presti. glous American College of Trial lawyers. Judge Clark, while working as a special judge on the AI[lbama Court 0( Criminal Appeal s, authored 709 opln. ion~, Each of those opinions was sclK)latly wrilll!n and many of them are considered landmark opinions In the field of criminal law The fi~t opinion he wrote! can be found in 279 So.2d t4S afld the last ("709) In S4 S So,2d 100. The judges of the Alabllllla Court of Criminal Appeal s, in fI.-'C ognitlon of his servic(l to that COUll , WClnt to his home In May 1988 and prC!sented to him il beautiful plaque which read, "Si nce t973, a scholar, a gentlem,ln, our friend, I)rcscntcd In appreciation by the Judges of the Court of Criminal Appeals." Judge Clark 10'Y'ed the law, and he wa s devoted to it, but even so, he reserved time for other wt;lrthwhlle endeavors, For S3 )'Cars he was an active member of the Central Civitnrl Club. He wa s (l devout
or
Chri stian and a memlJcrof the West End Church of Christ in Binnlngham. He was a Sunday school teacher and lay preacher, arld he filled the pulpit of his church aoo other churches on many occasions. He wa s a dynamic speaker, whether he was talking ilOOl,lt law or ilboul reli gion, and he did speak about both on m,my occasions. B~lng Ihe scholar that he wa s, Judge Clark became Intcrested In the history of his church, He devoted much time to a study of that history, Thi5 j>Tompted him to write a church hymn, which is contained In the Church of Christ song book. This hymn expresses much more eloQuently than I can the deep and abiding faith thaI Judge Clark had In the good. ness of his God. The first two verses of that SOrl g read as follc:w.s: "1. wt'S tcll the old, okl story On every hili (lnd plalr'l, The story of 5<1Ivation, throughout God's vas t domain; For welcome Is Ihe SIOry In every honest hl!art; It leads the lost to glory When they, thi s earth depart
2,
lel'~
tilke the old, old story Whereller we can go and bring 1051 souls to JeSu~ whocvcr lows them sol Let's take the old, old story In word, in deed 11r1d thou ght arId bring n'lmklnd's attention To wonders God has wrought Chorus They'll 10IIe to hear the story! And bless the living story The never dying Story of Jesus and his 10Ye."
On Augu st 11, 1989, the God whom Judge Clark had 10\It.>d and worshil>l>cd for so long must have 5.1 .d, "Leigh, YOL.Jr health has failed you . You hllVC truly lold the old, 01(1 Story through every aspeet of a full life. You h:we been a dtM;lt~ fa· mily man; faithful to your Church and CUnirllurlity: yoo hiM;! oc't."fI an ootstand· inglawyer and judge and an Inspiration to all who h,l\IC known yOu. I'm going to take you home now but I will leave in the he,lrt~ of those who halle known you the memory 01 a faithfu l SCfV<lnt. I truSt they will attempt to eml,lllte you In all
May 1990
a~pect S
of their lives." We will be beuer people If we will do thaI. - lamC1l 0 . Halt.,., who studied lorts under him in 1934 and knt'W him from that lime up 10 Ihe dale of his death, Birmingham, AI,lbama.
n! ..cd ,15 one of a distinguished anomC)', dedicated to the service of his country and devoted to his faMily and commu. nity. lIe rt'presented honesty and Integrity in the practice of law, and will be sorely missed by us a I. - lee B. Osborn Staff AIiOrnt.'Y leg;11 Services Co rpor~tion of AI;Iu;Ima
f)AVII> M( (,11 H In IIAII
WHEREAS, on till! 20th day of January 1990, D..... id McCi~rt Hall of EUlaw, Alabama, depart(.'CI Ihis life; and WHEREAS, it is Ihe desire of Ihe 17th ClrcuitSar Association 10 recognize and memorialize his lifelong dedicalion to the legal l)rofession ilnel his record as an aIlOfll(...,.; NOW, TI'IEREFORE, BE IT KN WN that David M. Hall, a Greene County na路 tlve, was a gr<lduate of Greene County High School, and r ei\lCl'l a bdchelorof arts degree from B rmingham Soulhern College in 1931. He rcceive<! an ll.D. degree from Ihe Uni\ICrsity of Alab.lma in 1936 and relUrned 10 begin law practice in Marengo County that year. l ie W;15 elccu.'CIlo the Slate House of RcprCscntatiV(!S In 1935. and scM!(! thclt' four years. In 1938-39, he served as Marengo County District Attorney. Entering World W,H II, Hall serYl.'<I as judge ,1dVOC'l!e ofiicer for the United $lOltr.S In France and Germany. He remained in Ihe Army ReserYe until he relired in 1970. FoilOYling lhe war, he beg.ln a law practice in Grrene County In 1946 and retired <lfter more than 50 yea~ aclive practice In 1968. In 1957, he was elected to the Alabama Senate, and served a t~a r term thetc. He made his home in Eutaw with his wife, the former l idll Meriwether, and their dauijhter, Rogers Hill( Olverson, who nO'tY residc~ In Maul, HilWail. Hall was ,III active member of the Eutaw United Methodist Chur<:h, and had ~rvOO as church school sLI>crintendent since 1938. He was an enthusiaSlic outdoorsman, especially fond of hunting and nshing. NON, THEREFORE, fiE IT RESOLVED, by the 17th Circuit ~ar Association, that the life 01 David McClUert Htlil be rCC::0K-
The Alabama I.Jlwyer
I ARI (. MOR(,AN My father passed away February 19, 1990, lil Ocala. Florida. while returning home from a shorl fishing trip to the FloridiJ K(,oys with my molher. He graduated from the Unlve~ity of Alab.lma law School and was admitted to the Alilb.lma State Bar in 1950. H~ mOSt recently scf'\.1!d as district OltiOrncy of Jefferson County. Earl MOigan was a public servant. lie hOld a prlv.lte law practice for several years early In his ca~r, but spent the remalndet dcclic.lled 10 pubHc seNice. After nni shing law school In 1950, my fa ther served a short time as;1!1 ilssistant city tlttOrlll....,. in Birmingham <lnd prOlCticed wllh his uncle, luther Patrick. He married my mother in 1951 afld ~nt back Into the Air Force as a JAG officer during the Korean War. In 1953, he roturned to Birmingham and eventually mCM.'CI his practice to Tdrr,lnt, where he sclW(l tiS city allorncy and judge. When George Willace w<lSelE!l:tcd gO'o'Crnor In 1962, my father was appointed as his ex-
C(:utive secn~la ry. The tWO and a half years he served In that capacity were ex路 citing. )i:ttrying. as well as critical, in our slate's history. Then, In 1964, Goycrnor WaliOlce appointed my father to nil the unexpired term of the late EmmCII ~try as distriCt attorney of Jefferson County. Dad served as the district attorney of Jef(crson COunty from O(,'Cember 1964 until March 1963. Ho Sf!rvt'(! as president of the Alab.lmil District AlIomeys Association, chilirpcrson of the A abama l..lW Enforcement Planning Agency and on the Board of Directors of the National District Anorneys Association. He had been a supernumerary district attorney since 1983. My father believed that public service was 01 profession and he wlued his friendships th roughou t the bar, government and law enforcement. I guess he was most proud of the peel)li! he worked with in the Jefferson County District Attorney's Office-the secretaries, investl路 ga t O~ and assistant district iI"orn~. Dad new so bombing m sslons O'>'er Europt'! as a night engln(''Cr In 'v\brld War II . He cooched my lillie league team and umpired my sister's softball games al East路 side Park in Birmingham . His two f;M)rite hobbies were fishing with his favorite fi shing partner-my mother-and playing golf with his friends at ~oebu c k, Vestavia or Grayson \!;I lk..,.. He loved his fami . Iy, his friends and his lord. His favorite StOry waS tell n8 how he bcx:Olme a page in Washington ill a very early age. He and his sister lost their parents when they YllCre young and they wcre raised by loving aunts, uncles and grandp.lrents. luther Patrick was dad's uncle and he was seNing in Congress representing Jefferson County. My da<l said that OrlC day he was shoveling out In the bam In his ()'oI(!ralls wncn a letter came from Uncle Luther for him to come to Washington to serve as a page In the U.S. House of ~epresentiltives. His relatiVl:!s washed his oore feet, dressed him In a suit with a tag thilt S<lld, "My name Is Earl Morg;1n and put him on a train 10 Washington. St.wral days later, he was being introduced to President ~It. He always SOlid that could only hal>pcn In our great country. - Dr y,," E~ rl Morgan Montgomer), Alabama H
183
WilliAM HORDI N "'IRI( klA.NI> WHEREAS, W, Borden Strlck.land died in Mobile, Alabama, Janu.lrY 3, t990;
"d
WHEREAS. tile Mobile Bar ASsocltulon desi res to commemorate the life of Bor· den Strickland; BE IT KNOWN Ihat Borden Strickland was born In a.mow, Florida, May 25, 1927, the son of Anna I\!arl Browning SIrickli1l1d and Eddie Strick.land . The fJ· mlly moved to Birmingham, Alabama, when he was a )Olmg 1:NJt, and he ,'ucnd· C!d Woodlawn Cr;1mmilf School and Woodlawn High x hoollhcrc. While he was still in high school he Joined the Uniled States "'erCharlt Marines and served In tIll! Merchant Marines during VWlrld W.u II . Near the end of the WM hc joined the Army and served In the E1C\1Ctlth Alrbome. While he was in thc EI ~n th Airborne he eMne<! not only his Paratrooper Wings but also his Glider Wi ngs.
Aftcr the Jap;lnese surrender he W.15 st;Jtioned in the nO'lhern PMt of Japlln al'ld WilS p..lrt of the p.uade led by Gener· 011 Douglas MacArthur as they marched down the streets of Tokyo when JOII).ln W;JS occupied by United Sta tes Forces. Upon receiving his honor;Jble discharge he returned to IJlrmlngham Ilnd entered HowMd College (now Sll lllford Univt'l'lIlty). He 1.I1I.'r tr.lllsferred to the Uniwrslty of Alabama where he received his undcrgr.,duate and l;'lw degrees. He WJS licensed to IlraCfice law in all courts of Alabama on January 29, 1955. He moved to Mobile where he opcned his law office as a sole p-actitioner In the V.m Antwerp Building. During tM days when Rilyr;nond Burt pt1lyt.>d Perry Mason In the television series, many people, pMticu lnrly the youngsters, fre<luently mistook Borden for Mason and more thilll once people greeted him on the .trcct and rc(crwd to him as Perry Masoo, to whom he bore a suiking resemblance. He maintained a general practice of law and waS a law P.1rtner in the early 1960s of the Honorable Michael Zogh. by, practicing under the fi rm name of Strickland & Zoghby. Strlcklnnd was assoclmed with Tom Deas from 1967 to 1970. He later was associated with Frank Cunningham and shan.'d offices with George Tonsmeire. III , and C h a~e Laurendine. Strickland was an able lawyer and a wonhy Opponelll . Judge Zoghby s.1Id, " [~I)'body loved Borden. He was a WI)' joYia! 1)(!f5()Il. Borden worked hard to up. hold his clients' fights and he lOlled rcprt'5eflting them." His good friend Deas Silid, 'f\t times Borden was cantankerous. mean and stubborn, but he Wi.S also kind, considerate and a vcry caring l>cr. son. ! think hI'! had tI UI\lquc ability to
determine a sense of timing in handling a le8<11 matter.' Strickland was very active in commu· nity and church aff"t~. While he was a member of the Mobilc JII)'Cccs he served a~ co.chalrpcrson of America's Junior Miss Pageant, now known as America's Young Wom.,n of the Year For more than 15 years he W.1S an aClil'C member of Spring Hili B••pt lst Churc:h where he taught Sunday school cl a ~se~. He nwried Jerre ~St, a ccrtWed public aC(ount.mt, in 1966. TImy I)Urch.1Sed the building at 201 N. Conception Street which they restored and used fOf their professional offices. They had two chil· dren, Dale Strickland and Kelle Strick· land, both of whom M l college students. Strickland also had Ih-ec other chll· dren born of a prior marrlagc: Beth Strickland and Bcau Strlcklnnd. who reside in Mobile, OInd Becky Stricklallo Or· (lid, who resides In I'hoen K, Arizona. He is also survived by two Si5tCrs, Elilinc Strickl ano Massimino of Greenville, South C.1rolina, and Su .... n Strickland WJldrop of 8irminghllm . Strickland cootractcd a S(!rioos illness three yeaf5 before he died and wa s In· capaci tated in July 1988, so that he had 10 close his law office. - Richard W. Vollmer, Jr. PrtOSident Mobile 8M Association
Please Help Us ... We have no "'<rot of knQ\.ving when one of our membership is deceased unless we are not ified . Do not wait (or someone else to do it; if you know of the death of one of our members, please let us kna.v. M emorial information musl be In writ ing with name, re turn address and telephone number.
18'
May 1990
Nineteenth Annual Conference on the Environment May 18·19, 1990 Federal v. State Environmental Protection Standards: Can a National Policy be Implemented locally? The ABA Standing Committee on Environmentill lAw announces lis 1990 conference on lhe environ· ment. This year's program will ('Xplore thc emergence of state and federal regulillion on Ilu~ environment
as a slg'liflcant regullllory Issue of the 19905. The progfilm will CXOlminc the evolution of environmEntal protcction ill the Siale ICYCI and Its rela tionship to ft>d(!r;ll liIW ,md regulation . The last len yeal'1 hall(! seen a marked shift (rom fedc rallnilialjllC5 10 Ihose by the stares. These slate-Icvcllnltla!lvcs hll\.'(! led ptlviUtllndustry 10 caU for uniformltv by federal preemption . This trend ccntr,lsts wi th the wi dely-held perception Ihal the st.Clles Me morc readily Influcnce<! to IOWN standards for environmental protcction and th at federal supervision is nec;essary to ensure (air and efficient regulation. Expcns will discuss their expt!riences as state and fcder.ll regulators, and cnvlrol'lmCl'llal O'llilnizations and private Industry will debatc their views of the respective regulatory efforts. By examining thc "tug and pull" between stale and federal agencies In Ihe contex t of radloactiYC and hatardous WoIstCS, as well as air and water quality, the conference will provide 11 flJrum for the debates now occurring in somc of the moS! important areas of environmental law. In addltlol'l 10 prQViding schol;nly papers, presentations and panel discussions. the program will offer opportunities for audience participation with the distinguished I)<mellsts and speakers. The Informal SCItlng of Al die House al so gi~s partic1pJnts the chance to meet and talk with speakers and colleagues durIng meals and breaks. As in the past, the conference proceedings will be I)ublished. Persons Interested In <lllcnding thc program should complete and return the attached form as soon as possible. In addition, registrants desiring overnight accommodations at Alrlle Hou!tC should rcgi Sler early In order to a\lOld disappointment. Progfilm Schedule: May 18: 6 p.m.-Recel)tion, 7: 15 p.m.-Banquet and Speaker May 19: 9 a.m. 10 5 p.m.-Program PersotiS wishing to atten(! should con tad Courtney A. Leyendecker, American Bar Association, 1800 M Street, N.w., Wd shinglon, OC 20036. •
The Alabama Lawyer
185
Midyear Reports of Committees and Task Forces The Alab.::lma Slille Bar's committees
and task forces for the 1989·1990 bar year h~ been busy and IJroduclive as ellCCrpts from the following midyear reports indicate:
Prepaid
Leg~1
Se,,,,icet
Commill~
EdgM C. GenU£!, III, chairperson The commlnoo divided Into 'il5k forces addresslnglhc (01l0'>'l1n8 arcas: {AI pl.tn monitoring; (6) IC8<11 and cthlCilllmpllcalions of plansj Jnd (e ) c~chiln811 of Infor· matlon with American Pre-paid legal
Scrvices lnslilu:e. Under the nrst are", the commhwe made II census and finandal viability J(!View of IhC IJre.pald legal service IJhms Ol)(!ratlngln Alab..1ma . Under this arca, the committee reviewed plall/ attorney and plan/customer COnlraCIS to dClcrrr1ine plan characteristics. including
whether the plans were access or referr,lI plans and whether the 1>I;'In5 plOYided comprehensive or limited coverage, whether such plans covered personal legal maners, business matters or both, and whether they were closed, open or mixL'CI. The committee will rcvicw whether plan documents reflect an unfair trade practice or are otherwise unfJirly misleading. As 10 the second area, the commlttcc identified two tasks, including possible implementJtlon of StilI(! bar diSCiplinary rules for lawyers participating in plans by w()rking with the Permanent Code Commiulon and the slate bar's office of general counsel. The recond til sk includes establishing a dialogue with the InsurJnce del>artment ;lnd the state bar's office of general counsel to determine hOYo' the Insurance dt:!J>artment and the bar should coordinate efforts to monitor and regulate pre-paid legal service plans and Alabama lawyers parllcil>atlng in them. After this review Is completed and the task fOf'Ce con siders antitrust, solicitation and other leg..ll and ethical Issues that h1M! <In impact on plan lawyer disciplinary rules, the commlttcc will make rtJCommendations concerning ethical
166
rules to apply to Alabama lawyers participating in plans. Finally, with re Spect to the third area, it wa s disca.ercd that the American Prepaid legal Services institute docs not t.,ke a census or AIJbama plJns nor does it knOYo' of any AlabJma lawyers who get its newsletters, other th(ln severill members who presemly serve on the committee. Furth~fmorc, the In$titute did not express any Interest In obtJlnlngdJtJ or information from tho cornrnlnee. State l udicial Bui lding Task f{)fceMaury Smith, chairperson Building architects Jnd enginl.'ers haw completed the schematic pl;lOS Jnd dt.... sign for the new judicial bui lding with only minor changes tQ be added. The land on Dexter Mnue has IJe(!n acquired with the extej)lion of four parcels Ihal are currently in litigation. The nexl phase of thc projoo will be the srte preparatiort arId COrlstruClion, scheduled to commence In April. This dllle could be delayed if the Nright to condemnN issue in the Montgomery County Circuit Cour! mandamus proceeding is appealed by thf;l prOpf;lrty Q'Nners to the Alab.lma Supreme Court. Permanent Code Commission-lewis Page, chairperson; William O. Hairston, III, secretary, reporting Following the preparation of a rule-byrule revievv of the proposcci Alllbama Rules of Professional Conduct ,md fl..'Vievv of commentS rili se(! by other sections of the AI;d)..lma St"te 8ar, the committL'C, on 5(lptcmber 12, 1989, $uomitll'd a final proposal of the Alabama Rules of Prof~ siorlal Conduct to the bOJrd of b..lr com· missioners who approved the submission of the prollOSCd rules to the Alabama Supreme Court. The submission con!ained a comparison of the rules of the Alao..ma Code of ,Professional ResponSibilit y. a comp.lrison of the rules of the ABA Model Rules, a summilry of com· ments submi tted to the Alabama Supreme Court and published critici sms
and response of the Permanent Code Commission on behalf of the Alabama State Bar to such ( omments arId criticisms. On October 16, 1969, Chairperson Page, on behalf of the Alabama Stilte Bilr, attended and conducted orJlllrguments before the Alabama Su!>,eme Court concerning the adoption of the proposed Alabama Rules of Professional Conduct. These rules (Ire cr.mently under submission to the Alabama Supreme Court for consideration and adoption. Task Forte on ludiciJI SeICClion- L. Drew Rt>(lden, chairperson This ta sk force has been dormilnt since the fall, 1)r1marlly observing what is geing on In IItigatioo concerning the ~rec tion of judges since those results should more clearly indicate the parameters within which the task foree could acl. Unauthorlu'lf Practice of Law Committl'e-M. Dale Maoo, chairperson; Aiel( W. Jackson, assi stant general counsel. committee liaison, reporting DUring the period of July 1989 through February 1990, the committee opened ninc Ifl\ICStlgatory files and closed 11. The committee received sil( c~ase-and-dcsi st affidavits and successfully concluded and outilined (I fin;!1 judgment In a quo wiltramo action In northeast Alabama. Also, the committee has under active irwes.tig..l. lion t~ other situations that, in iln probability, will Invol\o1l IItig..1tion. Further mt.'<!tlngs to finalize plans regarding poSsible 11t!811t1on are con t ~mplated. Olher than the two investigations currently under aclive Inveslig..ltiQn, the unauthor· Ized practice of law docket is current. Ethic, Education Committee-Iohn D. Clements, chairperson The Initial ta sk of the commillee wa s to ~nd to comments submitted to the SUJ}f(!mC Court of AI.lb..lmll regarding the proposed "Iabama Rules 01 Professional Conduct and support tl-e submission of the Permanent Code Commission. A drafting 5ul)c;ommittec, co-chalred by Dr. May 1990
Richard ThlSI>en and frank House, wa s appolnred and met on sC\'Crill occasions, A draft submission was prepared in sup. port of the proposed Rules of l)rofessioo,,1 Conduct and appftM.>d for filing with the SUI)remC Court. The committee chalrper'SOn OlI)I>carcd, along with the chairperson or the Perma· nent Code Commission, In suppon 01 the proposed Rules of Professional Conduct and ill}IUed their a~>roY'll before the Ala· bama Supreme Court on October 16,
1969. FoII(lwing the supreme court hcaring, a subcommlncc was al>l)Olnted, chaired by jenC!lIC! M . Mar$h and co-chalmd by Jackie Shala, to ma~e rccommC!lldatlons to the commillee for the dissemination of the new rules and a general education pro!!ram on ethics. I;IW OilY Comrniue(.,-Frcd MeC" I· lum, Jr., cha lrr>crson The commlllC!C has had three meet· hlgs, two in Montgomery and one In Birmingham. The committ ee cont inued the projeet started last ~ar to canvass the local bilr associations around the stolle to find out who celebrates law Oily. The committee gathered information on their activities and Included this information in a manual assembk-d by the commit· lee arId mailed 10 all local b.lr associa· tions, along w ith a 1990 Law Day Planning Guide from the ABA. Throughout this process, the commlucc urged local bar associations to hold aJlPfOPriate celebrations of law Day in their respec. tiYe counties. The commil\(.'C also prelhlrod a resolu[ion to be si!!ned I1f Gowrnor Hunt m· cognizing Law Day 1990. ConulIith.oe un local Bar Activit il's and Scrvict.'"S-Loring 5. lonI:'S, IU, chairpcr'SOn The commluee renewed Its 1I:llson with the Youn g Lawyers' Secti on to promote the "Irrwycrs helping lawyers" men· tor progrilm. The committee illso discussed Wil'f1 to seck assistance of local bar associiltions to 51>e<lrhead a I>ublic 1'\.'lations effort countering the lJ(merally negative press attorneys receive. The commltt{'(l will ex.1mlne this matter In more depth In the future.
80.trd o( Editors, A/.lb.lmil LilwycrRobert A. Huffaker, editor The editorial boilfd met during the annual Siale bar convenlion and also con· vened in Birmingham at thl' mld·wlnter meeting in februollY. Sever.. 1 years ago,
The Alab.,ma Lawyer
lhe edilori,)1 boiIrd instil\rte(f iI procedure whereby subcommitTees of Ihe board were aSSigned responsibility fOr procurIng lead articles for designated Issues of the publication. This procedure has continued 10 work well and has resulted in acliYe panicipation by all members 01 the editorial board. The fi nancial welfare of Th(' Alabama liI\Vyer is 50und, with advertising ~nuc, coupled with Stiperlds from the stilte bar, su ffi cient to defray publica tion cos ts. T.1sk force on Legal Education-Orrin K, Ames, III, chJirperson The tJ5k force concentriltcd on fi ve generJI Jreas which Indude I)roblems, if any, with oul-()f-slilte applicants from unaccroo itoo law schools; passlfail rilte Sliltistic5 for out-of-statl! applicants from unaccrt.>di ted law schools; IrlfOrmatl Orl regarding grievances, If any, flied against out-of-st.l te applic.1tlts frOIll unaccredited law schools; law school visi tation; and a survey j)l"cparcd 5CVCfJl years ago by the Legal EduC.l\ion CommillC(l. The task force COnlacted the law S(hool de,ms in Alabama fOr their opinions on a survey con taIning Information regarding curricula at the schools. Only Birmingham School of taw and the Unl· versl ty of Alabama School of Law responded. Regarding sluden[s (rom Alabama unaccredited law schools si tting for the bar eX-1m, rhe commillt.'t has C(lnciuOC'd Ihar it will not study the issue any further. Concerning student s (ro m out-of-state unaccredited law schools takin g the Alabama bar exam, the committee will probably make il recommend ation to lhe bar commissioners tha t the committee not study Ihi s 1 ~5 ue <lny fr,lfth er and that students fro m ou t ·of-st ~ te unaccredited law schools be perm ill(..od to t<lke the bar cX,lm. The task force intends to meet with the deans of the three unaccredited law schools to discuss the deans' perceptions of the role of th is task force and open a dialogue between the task force and respecti ve schools. Finillly, Ihe ta sk fc)rce is Studying a law school visita tion program adoptoo by the TennesS(.O(! Bar Associatron for possible ImplenlcrltO'ltion In Alabama. Pro'cssio",,1 Economics CommitteeWilliam H. Hardie, ch.irperson The committee sponsorccl a joint
seminar \Vlth lhe Alabama Legal Admin· ISlfiltOrs during the admlnislr;ttors' annual conferen ce. More thM 50 lawyers and legal administrators regi stered fot the seminar. Committ(O(! on Corrt.oct i!}n.. 1 Institutions imd Proct."tIurCJ-Ralpn I. Knowl~. Jr., chairperson The commi tt ee held five formal meetings in addition to the Ot8anilational m(.'Cting in Huntsville. The committee's Initial focus has been on problems within the juvenile justice syS tem, specifically the condlllon of juvenile detention f,lcilitles throughout the Sla:e, Members of the commi ttee have visi ted CllCry juvcnHe detention facility in the state. In some cases, lhe f~ci1i ties hilYC bt.'Cn visited more than once. The com. mittec waS shock(.'(i by the conditions discovcrcci at one ll.lrtlcuJar juvenile detcntlon f<lcUlty which was visit£!d early during the committee's Inspection tours. That f,l dllty was recently revisited and the committee learned that the con· ditions are 1VOf5C than before, The committee Is currently evaluilting inspection report s and other documentdrY mattl'rial rclating to those faci lilies. Th(' committee Int('nds to p~nt to the board of bar commissic)ners a prOposal for a resolution, as well as legislation, to address the serious problems that have been discowred. Insurancr Program s Commil1ct'Cooper C. Thurber, chairperson The committee held its first meeting in March for ori('ntation of n(.'\V members and to mcct with Insurance Specialists, Inc., the bar's administrator for health, disability and Hfe Insuranc(' programs. Al so atth;lt meeti ng. the committee met with the I{llnes Group from Chicago, II. linois, to di scuss the l)Ossibility of the James CrOUliSbecoming the stale bar's administra tor for health, dllabillty and life Insurance prOgrams. Thecomminee reeel .......'" 11 progress r('llOr! 01'1 Atlotn(.>y5 Insur.lnce Mutual during this meeting. The reprcscmoltlV(' for lSI promised that it would begin providing the state bar wi th more inform<ltion reg..1rding the various programs thilt they adm inister and also that they would keep the Insurance Programs COrnmitKOC better info rmed about the bar's insurolnce programs. (There was some criticism ('Xpressed regarding the failure of Insurance Specialists to notify the cO'Tlmillee of
187
problcm ~ and m ti dp.1too changt.'S In the programs.) A repft.>Sent;!ti~ of I h~ 1~lIn('s Group offered 10 make a formal prol>osai 10 Ihe Alabama Stale Bar regarding th e ;ldminiSlration of v<1riou~ insur;ll1CC program s. The committee ;lgreed 10 provide what ever information the company nl,.>t..><k-d for its prol>osai. Once the prol>osai is submi lled, Ihe commillee will decide whelher 10 recommend 10 Ihe board of bar commi ssioners thaI Ihe bar continue ilS associa tion wllh 151 or change to Ihe James Group. Indigent Dcf~nsc Comm i u (!(.'-D~nni s N. lJal ske, chairperson the committee reJ>orlf.'Ci Ihal the Administr,ll ive O flice !.If Courts wa s unable 10 compl ele legislation prol>osed by Ihe chief jusllce's Special T.1sk Force on Indigent Defense due 10 Ihe l)rlorilY receiliCd by Ihe chief Justice's juvenile justi ce legislatiQl\, The commi ttee hopes th at thi s legislation concerning indigent defense can be introduced dl,ring next ~ilr'$ legisla t jVl! session. The committee reported thatlx!cause of the high hopes for th e SI;l(.'Cial Ti;l sk Force's rCl>Orl, the commiU(!(! plans to mgroup and work lor the ImplcmenlJtion of the ta sk force's proposal s. Task Force on Propos(.'d CommuniC.ltion s l;lw Sectio n-Bruce 1', Ely, ch;lirpcrson Members of dIe ta sk force met wi th interested allorntlyS ;lI th(' offices of South entral Bell in Birmingham in February. Members of privMe firms, SOu th Cel"!'OII B(!II, BcliSoUlh, magazine publishers and one of the admlni str;l tive law judges for the I'ubllc Service Commi ssion att ended the meeting. The Iilsk force has undertaken a Sl'l"\II!y of the interest of Alabama biH members in the formation of a communiclrtl0r1 5 I(lw section by plaCing in the March edition of The Alabama Lawycr;l form for interested lawyers to complete and rcturn. The t;lsk force will analyze the results and make a report to the bOard of b(lr commissioners. Military law Committee-W.e. Tucker, Jr., chairperso n The Military Law Commillf.'C has had tv.Q meetings I!nd Is v.Qrklng closely with active duty mililary lawyers 111 the SHlle to plan a symposiUm for active duty milItary allorncys. Thi s symposium is ten·
166
tatlvely scheduled for Augu st 1990;11 Ihe University of Alilbomillilw SchO(lI. Thll commillce has formulated a tcnti1 tive agenda ;lnd rost(!r of speakers. Specllli Liaison TM! CommiltceDavid M . Wooldridge, ch;lirperson This Is a regiona l commi tt ee composed of representatives from each state bar In the Intern ~ 1 Rovenl'C Service's southeast region and the head of each division in the IRS regional offke. The commitlf.'C mC(.!ts tri Octo~r to share! Information, ,ri r diffC!renc~ and dL'VClop idC!as for a more satisfactory relationship betWCCn the IRS arid th e tilx bar. Although tllis commillee is fairly nm(OWly focused , it performs a viwl fun c· tion and service 10 the members of th e
Don't let you r Alabama Lawyers
get worn, torn or thrown away. Order a binder (or two!) at $10.00 each from: The Alabama Lawyer
P.O. Box 4156
Montgomery, Al 36101
or call (205) 269-1515
b.l r interasted in tax mailers Md relationships with the IRS. Task Force on Possible ere.l tion ot He.ll th CMe law Section-Gregg IJ. Everell, chairperson Ten members attended the ta sk force meeting February 2, 1990, In Birmlng" hilm. StNeral ta sk force members agreed to assess the inlerest of mC!mbers in their area of Alabama. The ta sk force complmed a tlr.'!ft fif a ~ urvey (cHm ar"ld an ilrlicl e 10 solicl tin!ercst for membership for crea tion of a sec ti on to be published in The Aillb.,mll Lawyer. future of th e Profassion CommitteeMJC M . Moorer, chairperson On February 2, 1990, the commillee Illet in Birmingham. Thl) w~ s the second meC!llng of Ihe commiU<!t!, with the first being h('ld in July:rt tho annua! meetin!l In Huntsvill~. At the February meeting. the commi ttee discussed possible proJcclr.iarcas of focus. There was some COllcern that the issues being eK.lmined mi ght already be the sublect of ongoing prOjeCIS by other committees or task forces, and a list of those items, with the corresponding Sl1lte uar commiltf.>e/ta $k force, wa s submlued 10 Ihe state bar staff for a response. In addition, Ihe proposed Clienl Bill of Right s was discussed, as the commluee's chargc incll,dcs taking .action d eemed al>Propria!e on 1h;1I document. Because the committee hJd previously 5ubmitted prQposl,od clien t bill rj righ ts for consideration to the stale bar and Ihe board of bar COfllllllssioners, r'IO furth er action was deemed appropriate absen t some further Instruction s from ei ther of those groups. The commiuee agreed to work on.lhe possible d~lopment rJ a presenta tion to stale lirw $Iudent ~ aimed at crca ting realistic cxp<.'Ctation s teljarding th e practice of taw in Alabllml!. A suU(Ommill(;iC wa s selC!Clt.>d to develop details of Ihis concepl, with a,,10lTA grant belr"lg considered as a I>ossibie funding source. A 5ubcommiuee wa s establi shed \0 collect current stati sti ca! information regarding the placemen t of 5IJte law students, and, for commi"~ rcvil;w, CXilmplas of cre(.'(is being adoptLod by local bar associa tions. A reporl of the$(! 5ubcommi1lCCSwa s distributed 111 niid-April, alid the cornmillC(! met again In laIC Aprll-early May to review the information and take .. ppmpriJte action. •
,I
May 1990
Polo Match Helps Those With Diabetes
Judicial Salaries as of 1/1/90 (As published in the ABA State Lcsls/ariv€! Report-S.L.R. TAU Y, De<:embef 198911aouary 1990.)
Birmlngham 'sflrst polo Miltch hOSh.'<I
by Ihe Birmingham 1'010 Club will 00 hdd May 12 ill 11 (l,m. at the Polo dub field In Calera, iusl 20 mi les (rom Hoover on 1·65 South. The cost is SS a
car and thc day's acti vities Indvde music, an exhibition match at 11 :30 a.m. and Ihe Birmlngnam Polo Classic starts
the throw·irl al 12:30 p.m. Plan a tailgating picnic and bring a carload of whh
friends for il fun·lliled afternoon watch· Ing thc world's sport of kings. In addllion to an cxd ting polo m(l!(;h, there will be eJCnlbl!s on the flC!ld and great pril:es for the beSt 13ilgatlng party. On May 11 , thc night before Ihc match, a diMer 8<1111, " I;J1<d Tie and Blue Jeans," will be held a! Ihe Shoal Creek Equestrian Ccntcr. Tickets are S100 a person. The proceeds from Ihis wt..'ekend of events will provide funds for diabetes research and educa· tlon programs. Call the American Oia· bctes Association for tickets ill 87().S 179 In Birmingham and 1-800-824-7891 outside Birmingham.
M ark yo ur ca l endars for
-MobileWhat: Alabama State Bar 1990 Annual Meeting
When: July 19, 20, 21 Where: Mobile's Riverview Plaza
The Alabama Lawyer
Salary
SI.'II ~
Rank
(In $)
82,880 85,728 84,000 70,630 115, 161
Alilb;unll
Alaska Arizona
ArkJnsas
California Colorado Cooneclicut
Delaware Florida Georgia Hawaii Id(lho illinois Indiana Iowa Kansas Kentucky Louisiana Maine Maryland Massachusetts Michigan Minnesota Mississippi Missouri Montana Nebraska Nevada New H<lmpshire New Jersey New MeJCico New York North Carolina North Dako!a Ohio Oklahoma Oregon Pennsylvania Rhode Island South Carolina South Dakota Tennessee TeJCas Utah Vermont Virginia Washington West Virginia Wisconsin Wyoming
72,000 66,835 95,200 97,5 18 90,5 14 78,500 65,874 93,266 69,300 78,900 75,052 70,293 76,166 80,392 90,400 90,450 106,610 8<1,011 75,800 85,602 53,452 66,669 7.3,500 84,000 93,000 62, 186 115,000 84,456 63,871 91,750 71,806 74,400 91,500 90,618 87,238 61,618 65,650 89,250 75,000 68,055 94,907 86,700 72,000 82,623 66,500
25 19 24
39 1 37
"45 12 29 4S
7 41
28 32
40 30 27 14 13
3 22
31
20 50 43 3S 24 8 48
2 21 47
9 38 34
10 11
"
49 4'
15 33 42
•
"
37
2. 44
Source: National Center for StAle COurl$
"9
Disciplinary Report Surrender of license • In an order dated December 21, 1989, Edwin Charles G lover of Cu liml1n was stricken from the roll of attorneys
licensed to prat,if:;e t(IW in this slate, efftX:tive December 19, 1989. Gloverfailt.>d to 1'<1)' his 1989 Client Security Fund payment <and Opted to surrender his Iit;CIi$C and resign fmm the Alabama Slat£: Bar rather than submit p:lymcnt {(SF No. 89.051
Suspensions • On Febru.1ry 13, 1990, Ihe supreme ct!urt enter&i ;11'1 ordcr suspending John Lee Hutcheson of Birmlngh3m from the praclice oj law for non-coml)lianoo with the Client 5c(urity Fund Ruling. The suspension became c((ccl lvc February 5, 1990. ICLE No. 89.()7j
• Mobile l.......-yer R~II Simmons has been suspended
by the Supreme Court of Alabama from the pr;lclice of law for 11 l)Criod of onc year, effective February 6, 1990, for con· dm;:! involving di s hon~sty and willful neglect in representing
a dient in a state court civil suit (ASa No. 87-603). Simmons was also ordl!red suspended (or a period o( (our months (or willful negle<t and failure to refund the unearned ponlon of a fee In reWesentlng a client In a federal civil suit, this suspension to run concurrent with the one.year suspension (ASB No. 86-534). Further, Simmons wa s ordered suspended for a term of three months, alSQ to rIm /;onCI,Jrrent with the one-yeilr suspension, for willful neglw in representing a dient in an adOption maner. [ASO No. 88-262J • In an order dated March 26, 1990, the SUllreme Court of Alabama 5usI>cnded Virgil M , Smith from the practice of law In the State of Alab.."lma for a period of 30 days, said suspension to become e((ective April 1, 1990. This suspension wa s based upon the Disciplinary Board of the Alabama State Bar's finding Smi th gUilty of certain violations of the Code of Profess ional Responsibility. [ASa No. 83-278)
Public Censures • On /WIrch 16, 1990, Talladega lawyer Harvey Burk Campbell, Jr., was I)ublidy censured for violating Disciplinary Rules 6-101(A), 7-101(A)(I) and 7-tOHA)(3) of th~ Code of Profen lonal Respol1Sibility of the Alabama State Bar. Campbell had (lied suit h\ district court on behalr of a Cller\! in May 1985 and oblalncd a default Judgment In favor of his client. The matter then was appealed to the circuit court. HCM'CVCr, due to the Inactions (If Campbell, triulln the mauer did not take place until August 1989. Campbell thus was found to have willfully neglt..>(:\ed .;t legil! m<lner entrusted to him, to h{IVC failed to seek the lawful objectives of his client, and to have preludic~ or damaged his client during the course of the profeSSional rela1I000shlp. [AS8 No. 88-680) • On March 16, 1990, Montgomery lawyer J. Eldridge Holt Wil S publicly censured for unpro(esslonal conduct In vIolation of OR iT·l01(A)( I), (2) & (3) of the Code of Professional ResponsibiUty of the Alabama State Bar. On March 14, 1989,
190
Holt wa s suspended from practicing before the United States Bankruptcy Court (or the MIddle District of Alabama (or a period of six months, for being "consistently derelict" in his representation of bankruptcy clients before the court. IAS8 No. 89-164) • On M .. rch 16, 1990, Scottsbor(l law~r Benjamin Lawrence Wesson was publicly censured for unprofessIonal COr\duct In violation of the Code of ProfessiOllal Responslbllily of the Alabama State Bar. Wesson was attorney of record In {lppealing a criminal conviction in J{lckson County Circuit Court to the AI(lbamJ Court o( Crimin(ll Appe~l s, Wesson did not We a timely brief for hi s client, did not respond to {l letter from the clerk of the court of crimin(tl {lppeals, unci ignored repeated requests from the state bar to provide a wrincn explanation of his conduct [ASB No. 89-583] • On March 16, 1990, Birmingham lawycr Wllllam E. BrIght, Jr" was publicly censured for having vlolatoo the Coc/c o( Pro(eS5ionlll Responsibility of the Alabama State Bur by representing a party to a cause after having previously represented an adve~ parly or interest in connection therevvith , Bright o'IgrC(:(1and undertook to ~present iI yo\mg woman in pl(lCing hcr unborn child with adoptive parents. later, at the time of the birth of Ihe child, the yOung WOman changcd her mind and decided not to go through with the adoption. Bright then flied a court action against the young woman, on behalf of her mother and stcpfather, asking the court to terminate his original client's righTS In her newborn chUd, In fayor of her parents. (ASB No. 86-403)
Priv.lte Reprimands
,In
• On March 16, 1990, Alabilm;ll<JWyer reCeived" private reprimand for violation of Disciplinilry Rules (...101(A) and 7-I01(A)(2) of the Code of Profc$slonh1 Respelis/b ilily. The lawyer entered an appearance for a client and was notified by the court that the case w;!s to be dismIssed on a certain date unless action WilS taken by the attorney, The attorney never notified his client of that ilnd as a result of the neglect of the Iilwy(!r ilntl the failure of the Iilwyer to C<lrry through on his contract o( employment, the client's case was dismissed for waut of prose<ution. The Disciplinary COmmiSSion determinl'tf that the lawyer should recei~ a private mprim3r"ld for this violation of the Code. [AS8 No. 88-757] • On March 16, 1990, Montgomery anomcy <lr\d Deputy District Attorney for Montgomery County Eleanor l. Brook<; was reprimanded for milking an e~trJ·j udidal statement to a television stiltion concerning the results of tests on il criminal defendant and YOiting iln opinion on the gui lt of the defendAnt as 1'1 result of those tests in violadon Of DR 7-107(A)(4) and (6). Brooks was also reprimanded for her fallure to COOI>crate with the bar h\ this mailer. The Di sci plinary Commission apprOV(!(f a private reprimand, however, Brooks requested that the reprimand be made public. [AS8 No. 88,70S]
May 1990
• On March 16, 1990, a lawyer was reprim(lnd(.'(/ In IWO sep.1rale matters, In one case, the lawyer was reprimanded fpr engaging In conducllo(lt <ldvcrscly reflected on hcr Otness 10 practice law. Arlcr receiving a fee from the dient, Ihe lawyer undellook representation of the client In a divorce matter. When the client's husb:md failed to timely ilppear at the lawyer's office to ellecule Ihe necess:lry paperwork, Ihe 100wyer Informoo the client thill the client would hOl~ to pay an addi· tlonal fl>e for the lawyer 10 pursue Jhe matter any further. The lawyer did not obt~in Ihe divorce for the client as promised. In the second matter, the lawyer was reprimanded for wilhdrawing from employment without I.lking reasonable sleps to {l\I()ld foresecahlu prejudice 10 Ihe rights o( Ihe client. The lilwyer undertook to represent a client in (I social security ben (ilS matter, The day before the hearing scheduled In the mailer, the lawyer informed the clien t that she had flied a m0tion to withdrtl'oY ascounsel the previous day. The hearing proceeded 00 the scheduled date, with the l3W}(!r fai ling to appeilr on behalf o( Ihe client, and the client eventually being denied the applied·for social security benefits. [ASH Nos, 86· 254 ilnd 88·661) • On March 16, 1990, a lawyer was privately reprimanded (or having willfully neglecTed a legal matter entrusted to him, In vlolratlon 01 DR ().10UA) of the Code of Professional RespollSlbillty. The lawyer WilS retained in the spring of 1983 to handle the estates of two persons who had recently died. The lilWyer had an administrator appointed, and distributed the bulk of the assets of the eslateS, but thcn failed to compll!le Ihe work, and failed to communicate with his client. The CSIiI1 CS remained unscnled unlil October 1989, dcsl>l1e the lael lhm the lawyer had staled in writing. In May 1988, IhM he
would have the final papers concerning the eSlates 10 the client within 60 days. [ASH No. 88·1731 • On March 16, 1990, a lawyer was privately reprimand· 00 (or having engaged In conduct advtlrscly reflecting on his fitness to practice law, having willfully neglected a legal mat· ter entrusted 10 hIm, and having intentionally lal cd to seek thelawlul objectives of his client or failed to carry out a con· tract of employment with a dient. The lawyer underlook 10 repf't.'Sent an insurance salesman In a dispute over commissions owed him for Insurance sold. The I~rdetefmined that a cause 01 action existed for breach of contract, but f(liled 10 file sull (or many months, and did not respolld to ptlrsonal and lchmhone messages from the client Inquiring aboutlhe case. lASH No. 89.3331 • On March 16, 1990, a lawyer was privately reprimand-
ed for willful neglect of a legal matter, in violation o( DR 6-101(A), and for Intentional (allutllto carry out il contrilct of employment, in violation of DR 7·101(A}{2). The lawyer was retaln(.od and p;lid a relalner 10 represent a woman In initiating a divorce acliOll. The lawyer filed lhe divorce action but subsecpJC1'ITly failed TO appc(lt in cor..rrt when the case was SCI 10 be heard, resulting In !Is being dismissed. The lawyer then failed to explain or apologile to the client for his failure 10 appear, and fai led to cooperate with the investigation of the mailer by his local bar's grievance commillce. IASB No. 89-117) Tra nsfe r 10 D isability Inactive Status • In an order d3led March 20, 1990, tM! Supreme Court r:J. Aillbamil Irilns(erred lawyer Thoma§ R. Chrb!ian to dis.1bilify Inactl\f(l Slll!us effeClivc February 26, 1990, [ASB No 87-598) _
-----------------------------------------------------ADDRESS CHANGES ~ I(,il't('
check yoU! tr5tll\~ III Ih(' Cutrcrll 1969·90 AI,11l.1tnil R.I! l)rQ'(.tory and C011plClC rll(" fOtnll)('luw ONLY if thelt' illt' any Ch,lllKn toYOUt li)ting. OUt' to ch,1I1g("; In 111(' ~1~ lutt' govt'tning elecl!Of! of Ihlt c()mmissiollet), WI' now M(' !('quln.od to usc membe~' ofllc~ ,lddr1'i'll:~, Unll'!l~ f1()ne r~ _Hable or .1 tnf>mbf-r Is prohibited flom f~I"I~lnK ~1~1{·b.Jr mail ill the offrce. N ldITlon,)tty, till.' Alilbama Bal OIl1'(tory j~ cornpll('(I from our malting tt~1 and !t rs lI11pe(1,1I1t 10 uw bu§in"" "dd~)('1 for thilt rt'ason. OTE: If WI' do nOI know of i1 change' rn i1ddr~\, ~ ('"nnolma~(' the ncces'i.1ry (h~nll(:~ on our rccortJ~. so plI'J,Sf' nOllfy us when }our ilddress eh,tnllt'S,
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IJusin('S§ phont nlJrn~r
Full N~mt:
Olhn
[Jirthdillr
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omc!.' Sireel
City
The Alabama L.-.wyer
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Yca, 01 adm l~~lon
County AJdr~s~ (If
different)
Zip Code
County
191
Classified Notices
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Office Park Circle, Suite 315, Blrmlng. ham, Alabama 35223.
FOR SALE: Unitctl StalCS Cooe Annotaloo, 1962 00. and Code o( Alabama, 1975 cd. BOlh sets curren! through Mar'C h 1990, and In excellent condi tion,
POSITIONS WANTED
Alabama 36616. Phone (205) 47&-5560. THE LAWBOOK EXCHANCE, LTD:
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FOR SALE
Other book5 available (or sale. Please contilct ill P.O. Pox 160864, Mobile,
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POSITION WANTED: Skilled trial lawyer seeks positioniJ5SOClation. Ex· perienced (lead counsel/plaintiffs and defendnntsl In corporate, commercial, perron1l1 injury, estate, domestic ilnd criminal litigation; alSQ significant genernl l)raClice cXI)Cricncc. Excd lC!nt ac.l dcn"llc credC!rllJals U.O. 1977); strong perronal and writing skill s. MC!mber, Alnbama and Virg nla bars, seeking to relocate. Respond to Attorney, P.O. BOI' 2065 1, AJex<lndria, Virgini<l 22321).0651. POSITION WANTED: Crcat ive high achiever seeks position/association. Experlerlce<! In gcneral corporate, trademark and copyright, regulated industries, commercial transactions. alld gen· eral ci"il practice. Excellent academic creden tials U.O. 1977); strong personal im(l writing ~ kiIi S. Member, Alabama and DC bars, !leCking to relocate. RL'" spond 10 Allorney, P.o. Box 20652, Alexandria, Virginia 22320'()652.
SERVICES EXPERTS IN STATISTICS: Oiscrimlna· tior), EPA or OIher matters. Our experts have oonsuiloo and testifll..'<l on stiltistics arId economics ~r the past 15 years. Plaintiffs or defense. Qualifi ed in many fcder.J 1districts. Full ~rvice consulting firm, not a referral ~rvi ce. Dr. R.R. Hill, An<llylic Services, loc., p.O. Bo~ 571265, Houstl)n, Texas 17257. Ph!)nc (713) 97400043. EXAM INATION OF QUESTIONED Documents: Handwriting, typewriting and related ext.1ln i n~tion s. lnlerll<ltion(llly court-qulllifled expert witness. Diplomate, Ameri can Gamel of Forensic Document Examiners. Member: Amer· !can Society of Questioned Document Examiners, the International Association (or Identification, the British Forensic Science Society 1md the National A~5OCi at ion of Crim inal Defense L..1wyers. Retired Chid Document Examiner,
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USA CI labor;lIories. Hans Mayer GI· dian, 218 Merrymont Drive, Augu sta, Georgia 30907. Phone (404) 861).4267. TRAFFIC ENCINEER: Consultdnt!Ex~11 Wi tness. Graduate, registered, professional engineer. 40 ~ars' experience. Highway and ci ty deslBn, traffic control devices, city zoning. Write or call for sume, fees. Jack W. Chambliss, 421 Bellehurst Drive, Montgomery, Alab<lma 36109. Phone (205) 272·2353.
re-
LEGAL RESEARCH HELP: Experienced attorney, member of Alabama State Baf sInce 1977. Access to slate law library. IM!stlaw M ilabte. Prompt deadline searches. We do UCC-l searches. S3Slhour. s-trah Kathryn F<lrnell, 112 Moore Bl.lilding, Montgomery, Alab.l ma 36104. Call free: 1-800-448-5971. (In MlJntgQmcry: 277-7937). No rcpfl...... scnlilfion i$ made about thc qualit y of the leBal 5eNices to be l:JCtfotmed or fhe expettlre of fM Inwycr pet/ormins such
services. EX PERTS IN VALUATIONS: Los! earnings; PI; businesses; professional prac· hce$; contract (lamagl,ls; patent$, computer progr.lmSor other intellectual properti es. Ol.lr expertS have testJned and consulted on complex valua tions ~r the 1><1St 16 years. QuaUfioo In many federal and st.l!e courts. Full service consulting firm, not a referral service. Dr. R. R. Hill, Anillytic servi(:es, Inc., P.O. Box 571265, Houston, Texas 77257. Phone (713) 974-0043, MEOICALlOENTAL MALPRACfICE EX· PERTS; Our experts successfull y tcsllfy In Alabama. Gratis preview o( your med· lcal records. Health Care Auditors. tnc., P.O. B o~ 22007, St. Pclenburg, Florida 33742. Phone (813) 579·0054. for Stat Svs: FillI: 573-1333. MACH INERY & EQUIPMfNT APPRAISER: 25 years' experience. liquidation, fair market value, and replacement cost for cilpital, refi n<lnclng, b~nkruptcy, in· sur,lnce, etc. Write for free brochure. Phillip D. Bryanl, P.O. Drllwi!r 966, Oll' ford, Mississippi 36655.()966. Phone (601) 234-6204.
May 1990
1989 NEW MEMBERS
$50,000.00 * ot Lite Insurance Protection GUARANTEED ACCEPTANCE! NO HEALTH QUESTIONS ASKED! During This Limited Solicitation Period BEN EFITS INDIVIDUAL CONTRACT Each attorney becoming Insured will receive an INDIVIDUAL policy. NON·CANCELLABLE
Each policy Is NON·CANCELLABLE AND GUARANTEED RENEWABLE to ago 70 as long as premiums llro paid whon due . GUARANTEED RATES Premiums are slated In each policy and cannot be Increased during the llIe 01 tho contract. NO PQl.ICV FEE Policy lees Inflate the actual cost 01 your prolocUon. This policy has no fee. ACCIDENTAL DEATH BENEFIT Double the lace amount will be paid il dea1l1 occurs by a covered accident. DISABILITY PROVISION II you become disabled belore age 60, you make ro premium payments and your lull coverage remains In force lor the duratlon altho disability , up to ago 70.
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CONVERSION PRIVilEGE ThiS polley contains a conversion provision which grants the privilege 01 converting 10 a permanent CASH VALUE polley at any lime beiore you roach age 70 REGAROL.ESS OF YOUR PAST MEOICAL. HISTORV . COMPETITIVE RATES The company cannot guarantee tllal rates will go down In the luturo, but the average cost has dropped steadlly over the lite ot the plan. Those tower costs have boon passed along to policyholdors.
COMPARE THESE LOW RATES • NEW MEMBERS UNDER AGE 50
$50,000 01 Coverage AGE 20-24 25-29 30-34 35-39
40-44 45·49
NET SEMI-ANNUAL PREMIUM $ 15.00
24 .00 39.00 57.00 84.00 123.00
• NEW MEMBERS
AGE 50-69 $25,000 01 Coverage AGE 50-54 55-59 60·64 65·69
NET SEMI ·ANNUAL PREMIUM $99.00 171.00 249,00 424 ,50
You pay only Iht 'NET" pr"mium al alod aboy", Nol premium s aro b080d on Iho oompany'. curronl dlyldond schedule and are 8ublocI 10 chango, Th" gro81 pr"mlum, 810 I ll'Il"d In Iha policy and guruanl""d for Ihe life 01 your policy. R"y iew a plan bi'OChUf" 10f complele fole 8nd pion Inlormalion.
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ThIs special GUARANTEED June " 1990,
Issue offer lor New Members admitted to practice during 1989 will terminate on
PLAN ADMINISTRATOR : William K. Bass, Jr.: Insurance Specialists, Inc, 2970 Brandywine Road, Suite 135, Atlanta, Georgia 30341 404-458-8801 or Toll Free 1-800-241-7753 Underwritten by Northwestern National Life Insurance Company Minneapolis, Minnesota
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