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BRIEF Volomt 53. Number 3

May 1992

0:0; THE COVE.: Water flaws lJlj.kling blue through \apo:IoA County.

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lNSIDE THIS ISSUE: c....nanl£ Sol 10 Compele In AlIbi....., II M.lled 8g MichtNl L Edavrds and Michael D. f'rffmIm ..................................................... ]80 Now Rilhlf for ,'" Ol ... blt4:

Bg Joh" W.

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Highlight. of Ih. CIvil lI iellt. Act of 199 .

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8/1 R. Tav/or AbiJo/, Jr, ............................................................................................ 200

President's Page ................................. 164 Ex.cuti\/! Di rettor'. R.pOrt ......... ,..... I68 Bar 6.i.f, ............................................ 170

Iluilding f'und Ilonor Roll .................193 CI.E Opportuniti ............................... 210

LtgislaliVl' Wrap.Up ........................... 172

Coruulbnt'. Co"",r ........................... 208 Memorials........................................... 225 Profil~: Ni", Miglionko ..................... 234 CLusifitd Noticu ..... _............... _.. _...236

Building Allbama's CourthousH ...... I76 PTQfiL~: J~mt5 R~rt Suit ............... 179 About Mtmbm. Among .·irms ...... _. 189 Discipiifliry R~port ............................ 191

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162 1 May 1992

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Til E AI.AIlAMA LAWYER

PRESIDENT'S PAGE Interview with Phil Adams, ASB President, 1991-92 (This interview WQS conducted in March of this vear.)

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Phil, 6Ou·,. mo,. Ihon Q"I/:·hDlf_v thmuglr flOUT' tmu" lIS /xrr praidenl. 111rfl1 Qrf _ of/he important proj«l! thai /IOU '!of b«n irwoIood in during Ilia time?

0( public crilicism 0( the

lawy!r disciplinary procus. This criticism CMI<:S n't'n though the Irgal pro/U$ion in my opinion dox5 a better .iob of di.sciplininQ its mrmben than any other profession. I don't think the medial profession or the ac:countlnll. enginttrs, architKb, or any other profession does lhe M<lnu: I think the most ilTlllOfUnt bI.. pro}rct tllis yur his .iob Or hill the commitmtnt for disciplini ... its membeB U bttn the (OInlllttion of lhe thtH and l Iuolr million dol ..... Ia"')'tn do. But th.it has not done ~ with 1M crilici$.m. The ~di\ion to our Jtlte boo. building in Montgomery. We ~ criticism I Nve centers on two prinu.ry arUI. One il that that _ an' going to occupy the new Iddilion by Lit. March. Ia"')'tr discipline is a JtCret. The public I1tYI:r knows wtw's Hopefully. the tntiTt Proitct will be compldtd by mid·June or happening in the disciplifllry procus until irs over and in Ille first 01 July and _'II be through with our renovation. some ~ ___ ~ ....hat ~"" Number two, the disciWe' ... ucittd;!bout thai; we think our building will SCM the plifllry proclW is ,.:If·rtgulattd. ~B ~. of our _mlxrs well inlo Ih. nut r - - - -- --------, regulate lawyers IUld there should be IIY century. The hard thing has bftn to try to memberJ or non·llwyn involvement In 110 oul ;md impress upon the members 01 the disclplifllry proctss. OU r b;or 1M imporl/lnu of th.ir donating rTIOI\ey to Mlp w ~ for this building. A.t.: Do /Iou thinir JtcrtCN Jhould be remooed? A.1,..: /low 11m illi«rl {"mkd? Ada",,, I think that thire is

"dDmJ: We obtained a lOan from Iht

Alabama Retirement Syoterm to construct the addition and whal they ha»e commitltd to a permanent lQlln. ObYiowly, what

we are try;nQ to do ;$ to "in enough money th rough donations and ~ontribu· tions from Ia,,)'trs Klthat \<It don't have to finance J Ia'llt portion 0( the cost.

,U •.: Whallt<U ban In. nspOfIH (rom

Phillip E. Adamll, Jr.

lhebar?

Adllm, : The rtst>Onle from the $mall minority of the membtrs 0( 1M blor hlI bm1 very good. The rrsPQn$l' of the overwhelming majority of the lawycu hill bun very di ... ppotnClnl- .....e liked that rwry IlWyer in the sute contribute I tOliI 0( $300 II SIOO pu)'t1T for thru )'UTI. As of this momtnt. \<It have onl)' ~eivtd pledges iIfId don.otions 0( about S1.2 minion. If rwry lawyer in AlabiolTlil would ~ $100 J )'Ur for the nut thl'ft )'Un. ' « could ~ for this n.tw buildinQ and not have lilY siQllificant fifllncill problems IS far IS 1M buildinQ is ronctmtd. A.L.: fAl:': lalk tJiJout discip/i1lll,¥ prouriura.. T~:': /Jftn a good blr of publi~ rommmi and some public criticism aboul lhe INJrJ diseipli1lllrN proadul'U. Tht INJr hll5 ban criliciud (or 1101 rrwking public d4cipUna'1lllClirms lulrer!

against lawwrs. Have th' diJcip/inarv pr()CtdurtS chrmgtld anll during vo.,r Itnu" and do NOU SII a n~td (I>r 0'111 chanfl'!'? Adllm., I'lIans_r the last qut.ltion first Yu. t do Si!t a n«d

for a change in some of the proceduriS. Thire it 164/ May 1992

an awful lot

I lime when secrecy should be removed and I bellt~ that uc ... cy certainly ought 10 be ...movtd at the end of lhe prOCtss. In othtr wonts. if there is I complaint filed against Il'\e ami lhe process is completed and I am found not guilt)', I don'li« In)'lhi~ wroog .... ith th.it f;oct bti... disd05td. I do not think il ought to be rna.ck public wlltn a complaint is filed. At lhal point. the ...·s too much risk 0( I\;.rmina a Ia"')'tr personally and pro/usiorWly. Tam in fl\lOr 0( fTIOI't Optfll"ltSi in the bwytr disdplirwy prottu.

A.L: 1I<7tQl aboutlhe S«Yf!QI oIlhe ultimol, findings bN lilt botmi, for exrmrplt, .... pu/JlWt in AU"_ IAIJ.YtI' pri. mit nprimands ..-ithoul idmlif¥il1f/ Ih~ nll"'l oflh. /HIT member 11141 got TePrimandtd. 1I-1IJI JIrouldn'rlMI namt be disdostd.mtn a IJqr trItmbtr 4 ~,

T'"

Adilms: I..et me tell )OIl ",-hat has ~ in the ..utts ~t h;.vt opened up the lawyer disciplirwy prtICtsS. I belirw 1M 1U5Of1 the J»'t'S and public critidze bwytr discipline is because they don'l "'-< who!". IIOina on behind th.it MKalltd ·closed door: In the sla.ltswhm that door Iw bun (lpttltd and wht~ the ... Ire non-bwytr mrmbers ;ffI'OMtl in lht d>sciplinlOry ~ Ct.lS. the public criticism lnd the criticism by the press has dlminisht'd oonsiderab1)o because people understand what happened. who'. InvoMtl and the mu lts. A$llQlt chaiTTflln o(lhe Oisciplifllry Board. Tknow the process in Alabama ill good onf and the ... i. no attempt to whitewash or to C(lIItr up. But the public really doesn't know that. and the ... ason thr)- don't know is because it is a semI and there are 110 non·Ia~fS.

TH" AU\BAMA LAWYI':R

... k: Do yoo Ihfnlr WI I1«ri 10 ha.'f! norI'/OU'geJ' tmml>en on 1M discipiino" porw!s.'

"'•• ms: I am in f~vor of non·La~r involvement. This is be,,,, doN in oImr l~tU, and I ~ in I~vor 01 OOI)·Lawy!r i~nt

in It"" disciplirwy pnxa.$, in<:luding non·Lawytn ;lS nwmbfrs 01 di$(iplirwy ~ MKI pantls. Thut' nwmbtn should be xltcttd th~ ~ pl'l'laOl; thot iruum ob;«tivity. ... k : /IofD mudt of yoor lIalem;ml~ n!pr£tl'nl off.dal posi.

lions of 1M bar as O(JfXlf«llo whal Phil Mams Ihinks'

M«ttu: ~:verything I have 5aid i5 m;' perwnal opinion. I have appointed a tuk force to 5tudy th~ disciplinary procus in Alabama. The ta$k force is chaired by former President lIill Scruggs and tht}' are meeting right now. I deddtd 10 form this wk force wMn I rad an ABA report issued by tM Mile' K.i.y Commiuion. A member of the MacKay Commiuion is Justice Osar Adams 01 our supreme court. l1>t 1>Iao<;:K.i.y Com· mission's ~port ~ eritial 01 tho: ~r discip!iNry proc:es5. and made: about 20 proposals for changes. Rather than IooIt at tho: /obc1Uy Commission report from the standpoint 01 trying 10 UIpt .11 01 ils l'tCOITlrnm<Lations, ",., Iooktd at it as a tool to compare !hoM rm)mrnrndatioru to how ..., _~ doing it in

... .L.: Do!lOO think 1M /oat/ grievona commill« S/lSI(m1 lhol WI Iuwe in P/0CfI now has functioned UJ('1l.'

"'<hIm"

I think that it has functioned "'til, howtver. I am per. SONlly in favor of the .Iimination of aU but the larger com· mi ttees and [say that u Phil Adams. an Alabama lawyer, rather than president 0( tM state bar.

....w

"716'

AMntS: We haYc,nrana committees in ALaban\I in circuill with fr.oe:r tlwl 100 lawytrs. I believe !hoM lawytn are doing a good;oll of ilMSlifl,lting complaints liled Ijpirut Iawy«s in !hoM circuits. bul that·s not tho: pc>inl. l1>t point is tho: public perception 01 whit is bt'i"ll doN in lhat sitlJltion. Doa that IooIc lih a "good old boy" situation wt...r. I'm inyutifl,lting

on Monday and )'OlI're invuliglting ITM: on Tuesday and iI's all. secret anyway so it really dotsn't make any differeoce. I think the public perception il enough 0( a ru~ (or u.s to take I r()1 Iuord look at elimillilting all but the largest 0( the local grievance committees. Quite frankly. if all 01 the local grie.aoce commllten in Alabama "'trl eliminated lOIIay, II"" state boor doesn't have tM staff or tho: mont)' to take ovtr that rapon$lbllity. The Ioal grievance committees ilMSl~te and make I recommenocLation to the OiscipliNry Commiuion. l1>t Disciplinary Commiuion rtYiews thoR 1'«ORlmtnocLations and makes tho: final decision iIII to whit the I'tW/TIITICndtd punish· mrnt. if any, will be. So the mt. bar is ..iII mali", the IiNI dtdsion. but an the hKklround .....,rk. an the invutiptive woric to lid the thing In form to be presented to the Commis· sion. is being dom by volunt«r I~Ytrs in ALaIwna. )'00

... k: As IDOl Uri! romiucling Ihix iniert'lew the slullt l.egixlaIUn! is """,ling. The 1000ic. of course. is lax reform tmd one of the ittoms Ihut has b«n ronsidere<i in Ih~ lax reform ptJCkQg4l

THE ALABAMA LAWYER

is u lax on Sert'ia!s, including proftJJiooal smJKa.. HIJ!; lhe bar lu/tm u pt)SiliQn, eil,," in f _ or agunul lho! ~ of kgi..tuliQnJ AM...,,: The boor oIlkially has not Wlen a pOSition in fovor or

opposed to that piKe of legislation. However. Ilppeued bdoft a joint commitl« of tho: House and Sm.ue cmducting ......rings on tho: question of ruing KT'IIicu Last lall. I advised the members of the committee thai although tM board of commissioners had not officially taken a position on the mat· ler. Iwspected tt... board would 0[lI)0it a tal< on proieuional selVices. The basis of this O$lIlOSition, I suspect. is thai it would simply be another tal< on the conlumtr on our stale. I men· tiontd that I did not th ink it would be appropriate to L1x pe". pie Inking to Muin child support for tMi r children Or taxing someone who is seeking disability benefits or someone who has rKeivtd a serious injury or the death 01, lovtd one. Some members of the ltgislativc commitl« IPCIal'fnUy thought that Ihis In wu a \.U: on Lawy!rs rather than on the cli",,~ of lawyers. I am advised that tho Q)IMlitlH rtmOYed the ida of ruing legal KrYicn from the propo6lllO that question is not pending bdoft 1m Legislature at this time. lI~r, I cIon't belie\oc the issue ...il1 go lWlIy. I know that iI's being consid· em! in ottwr .....tu and suc:h ) pfO!>O$.ll actually pustd the Ltgislature in florida and Wis in exlltence for SiK months belore it was repealed as being a bid Idea .

....1. .: Anolher /egis/ulivil ilem is W(j ,k,,'s compensulian rdorm; has Ihebar loken a pOSition on lhol? Moms: Lui year, when tho: IndU5lr;"l lIeLatloru

~partmenl

p1"O]lOstd its work.r's compensation bill, ~ look a position that opposed tho: legislation btaust it cruted an administr.l· live I'.... judge system and relllOYfd .....,rker's compensation from tho: court system. ... .L.: What's IlT'Ong .nth IhIIl'

Nhlms: W. belie\oc that worktr's comptnsation is a national problom. ",.,~ a~ two ,\.IotlS lhat haYc .....,rkor's C<)ITIjltIl$.l' tion o:a.st5 dKidtd in the court system. The otMr 40 statn ha.... ao admioistrative IlIw judge system. So we don't think that taking the worker's comfl(lI$.Ition o:a.st5 out of. the court !)'Stem and placing them in the administrative law judge sys· tem necessarily Curts the problem. We especially don't undtr· stand the Kooomics when )'00 have /I judicial i)'5tem in pron· tion to "ute another syll(m to fuod. We beli.,.., worktr's compensation an be haodltd fairly. efficiently lind consistent· Iy in the uisting judicial system. One of tM major criticisms heard about worktr's comp is that lhell' is not uniformity in deciw"ll cast5 UQUnd the state. that you milht hove /1....- io south ALabirna thot ~ similar to a Qst in north Alabami on ill faclI but have greatly differing muill. AS)'SItnl of lIppelLatt mOew toold Wle those two asu and mOew the bocls and. if """ropriale. mike the mulls similar. Frankly. we think that is a better system than tho lIIministntive law j~ S)'SI(m. ",., state bar's only position has been to oppose tt... administrative la.... judge s)'5tem and we haYc tahn IOmt criticism from the busin~ communlt~ who [ think perhaps "'tTe misinfonned about Our position. May 1992 1 165

"'.L.: Il1>al is the bor doing about/he indigent deff'tlS<! crisis?

""""'$:

This is a wry serious probtrm. Our Indigent Dd.n$\' CommiU.., is WQrking WI)' hard in this area trying to arri"•• t a pTl'>JX)SaI that can holp. I undustand a lawsuit challenging defense tuumel has recently b.en filed in Baldwin County.

.1..,

Other states have addressed this problem. 1 understand that an ArkaMa$lrial judge recently declared a similar statute in ArUIlSM 10 be unconstitutional and ~stablisMd a formula for compensation of lawyers for indigent delendants al an hourly rate. The methodology used by that judge was to Llke the sala!)' of the dislrict attornl'jl$ and the value of the office and staff of the distr ict attorneys divided by 2,000 hours per )'t'ar and determined that if lhe state wcr. paying that amount fo r prOStcutoriallervkes then a similar amount should be ade<juate for defense counsel.

AL: \fhal has Ih~ bar done la Irilio serve Ihe IH'ffi.s of Ih~ lIounger members? Adam" We ha,~ attempled to appoint young lawyer$ who want to leNe on commi ttees and task forces and to allow them to immediately gft involved in bar acti~;ti es. Another thing thai we'w attempted to do i. de,.. lop a program where the sLlte bar can help young lawyers. I appOinted a Ia.Ik force to study the po~ibility of impkmenting a menlor program for young lawyers. The ide. behind the program is to create a group or list of people. of older, more experienced la"),ers who are willing to give their time and talents in teaching young lawyer$ lhe customs and courtesies ami practice of law, how to practice law. how to lei up their office. how to set up your bank account. what to do when you have a problem with a client or a complaint wilh a chent. how to hamile thinll$ in a procedural way as far as the client ;5 concerned. and how to represent a client appropriately in court. Those things we believe can be done through a mentor program that would certainly benefit young lawyers. It coul d benefit older lawyers and the ultimate benefidary in my opinion woold be the pub· lie of Alabama if we could get that done. You Imow, too many

people think differently thlln when you and I started to prac· tice law. They belie ... that the proper way to be a lawyer is to be a young Rambo and to be the meane.t man in to"'n and to attack at evtry opportunity. Now you and [ know that that ;5 not the way in the long run to be a succ~ssrul lawyer. but somebody hal; to deli,..,r that m~e to the person. who are just beginning the practice of law Or they a,.., going to try to acqui .. what I consider to be a bad habit from looking at other follu;.

A.1.., Ha.oe /IOU found Ihisjob 10 be lirmH:onsum;'>g.'

Adan'" The job requirts much more time and aUention than I anticipated. I became a member of the board of bar commis· sion... in 1983. I .erved "' a member 01 the Disciplinary Board. I was chairman of the Disciplina!)' Board. [was chllirman of the MCLE program. [ was chairman of the Disc;· plinary Commi~ion , J ha,~ sefWd on the Executive Commit· te. at least four times prior to becoming president, and [ sefWd two times prior to b«oming president as vice·presi· dent. I served one)'t'ar as pre.ident·,leet. In spite of all this past leNice. I was absolutely flabbergasted at the amount of time the position requi res. The.. is ra .. ly a day that passes that I don't do somfthing for the Alabama Slate Bar. I receive letters from disgruntled clients. I rrcrive telephone calls from people wanting to tell me about a problem they have had with a lawyer or a gripe that they have with the legal system. I"m not complaining because J have immensely enj~d serving as president. [ am sure that the benefits from seNing as state bar president far outweigh the sacrifice of time that I ha~e made. I am very grateful for the oppOrtunit~ to hav~ served in this capacity.

A.1..,

~Ou have 10 hilt'"

u",iersla,uJing law partners, f"m sure?

Adams: E... rybody J know has been understanding. Ill)' law partners. my secretarial staff and my family. Wi thout their suppOrt this job \'\IOuld not have been nearly as much fun as it has brtn. I d«pl~ appreciate their help ami suwort. •

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EXECUTIVE DIRECTOR'S REPORT The Alabama State Bar and Workmen s Camp Reform

receiW<J

tW1)

letter. recently concerning the state

ba,', role in the W<;I.kmen's CQmpensation rdorm efforl. One lawyer described the bar's role as both

"frustrating and disappointing" in Oppoo.ing the govemo"s bill. The other la",~r was disap-

pointed thlll the bar "had ta~en no leadership role" in this crucial, legal-political battle. One lawyer is defen.e·oriented whil e the other i. plaintiff·oriented. ! setm to recall an expression to 1M .ffttt that. "\\'e must be doing something right when both sides view our actiom; as having [a\/(lred the one over the othe.: Po. the record, some facts should be noted for the bar'. wsitiOIl or role in this malte. 10 be accurately reported. From day one - when John Allen. the director of the Industrial Relations Department. a.ked fOT the bar a .. ociation', assistance in addreSSing a "crisi." in the workmen's compensation area - the bar respond~d. W. Harold AlbriUon. III. the statt bar president at that time. appointed a special commiUee to work with a multi-disciplined task force to draft legislation in this area. This task force was never convened by AlI~n. In fact. I am cotwinced he never wanted it to meet. He alread» had "hi, bill" which was fraught with defocts. It took a letter from the presi · dent to Governor Hunt before the bar could be heard. The original bill died in the 1991llegular Session. That bill would ha", done away with the current adjudica· tion in the court system. This was the bar's singular objection. The board of bar commi.. ioners wanted the integrity 01 the court system protected. This has been tht bar's only position in this debate. The Workers' Compensation Law Section of the state bar "lOS formed in 1991. It has a I,g'slati", committee. The original task force. composed of Charles Carr, Steven Ford and Judge James O. Haley. rtrommended tl>< task fo",e be terminated at tl>< July 1991 board meeting, with its function 10 bt assumed by the Ltgislati", CommiUee of the section in any future nego. tiations with respect to workmen's compensation reform. The board appro,'€d this action with the likely prospect that the workmen's oompensation i.. ue would reaP!"'ar in 1992. In Janua!), 1992, the governor's office called the bar to osk that it send ceruin representati",s to meet with the governor to discuss this issue. I, accompanied by Keith Norman, Steven

168 / Mayl992

ford (Worker's Compensation Law Section chair) and Robert W. l..te. Jr. (the section's Legislative CommiU« chair), mel with tl>< govemor and his chief of staff. Dennis Nabors. At this meeling, in response to my direct questioning, the governor upr....d no commitment to the administrati", law judge system which had been proposed in the 1991 depa rtment bill. Thiswu negotiable. Subsequently, a schedule for meetings to draft • bill was determined, and our two ltpresentatives, Fo rd and Lee, began meeting with other interested entities, including the Medical As»::iation 0/ the State 01 Alabama, the Hospital Association. the Labor Council. the Trial Lawyers Association. and representatives of a non· profit g.oup which had been formed for the exp ress purpo.e of dfocting .Ome form of workmen's compensation reform. Under the leadership of Rob Hunter, the governor's special counsel, this group began meeting in hopes of having an agreed-upon pioce of legislation ready for presentation to a 'pedal session of the Ltgislature that was called January 27 for the express purpOse of d<:aling with tl>< workmen's compensation reform. At the first meeting, n.'<;I reprrsentati"es from either the business or insurance interests (they would not identify thtir principalsl announced that tl>< administrati,'€ law judge system in the proposed bill".... a non-negotiable f.aturr, and that any reform legislation must contain such a S)'Stem. Thi. wos not what Gm.'€mor Hunt had told me. I called Dennis Nabors who advised me that the g(}\'€rnor had "apparently changed his mind" on this issue and was supporting the inclusion of the admini.trative law judge aspect in the bill The special .... ion Ia.o;ted from Janua!)' 27 through Pebrua!)' J. Our two repre..tnlati\lts Spent hours in Monlgome!), at the Capitol helping draft legislation, as well as amendments during the legislati''€ process to what "lOS, in my opinion, a department bill even though it was represented that John Allen wos not invol-.'€d in thill particular reform effort. Many participants in earlier "negotiations" found him unwilling to negotiate al all and adamant in his support of his -department bill" without amendment. All partin to the negotiations prrceding and during the legil;lative proce., were extremely complimenta!)' of the contributions made by Ford and 1.«, Their expertise in the technicaliTHE ALABAMA LAWYER

ties and their working undtrstanding lOnd awucil.tion 0( the wormn's comprrlSition liw systf111 as it presmUy aoo was Mdtnt, Thew two mtn, in spite 0( any prTSONI views they may ~ hid to the contr.r.ry, t;1rried out the rnandite of the board of ~r commissioMrs as lOrticubted origil'lilly in July 1991, Nmtly, thit the ~r's int~ ..'as to ;ItlUn the lIIIIinteIIiIn 011 judieW '}'ilem for ....judiaotion ofworkmtn', com, pms;otion cll.ims. The ~r'i lUition ...... ~ upon the rost effectiYer>Ui 0( the turnnt "Y"tem and 1M obviOUi fl'O$ion 01 judicil.l indtjlmdtnce undtr tm prOpOSed administratiYe IlOW system as originally dr.r.ftfd and introduced in 1M ~gislalUn, A bill passtd the SeNte February 3. That bill did maintain the court ,ystem in the process. The bill containfd i number 0( provisions which ..~n contr<l'lltrsial. but, nonttheless, 'Ntn apprO\.. d by the Senate ind stnt to the HOIJst. II confennce committee wu appointed but it was obvious thit no constltlU, could be rnehed beaust of vut diflerenen which many House membeTJ hid wi t h the Senale bill. TI'It Senate ....;oumtd liM ditt and the SpeC;,,1 session mded without any lefIisIlIlion chinging the workmen's compenYlion law "Y"Itm in AIWmi. ~rs .... n bll.mtd for thi$. Workmen's comprrlS.iliOn reform "'gi,tition is turrently prnding in the 1992 Regulu Susion. The measure which sterm 10 hiy.e the besl chance for favorable comidtntion reu,ins the court system. It would Ippu r the uguments ~inst and OJll'O'ition to an .... minist"'Uy.e law judllt f)'$ltm may be havinQ somt inAutn« at this late date in the OfWtlt effort to Imtnd the current workmen's oompensation system.

lSI

• • • •

The Alabama Stale Bar

Ford and ~e nportfd to the baud O(~r commiuionersl.t its medina: February 28. They OIJtlined their ~ivitin ..'hkh had btm reported ngularly to the E.wcutiYe Committee 0( the booord. At the conclusion 01 thei r p.uentltion, they were thIInked by the tntin commission for their efforts.. The '-1'11 agoin re~rm«l its ,upport for the pOIition OPl'O'ing .. ny eha...,. in tho current rourt .ystem handlinll 0( wormn's comptrWIUon ewlNo. Tho! I:Io»rd oppoK$ a n'WlC!;r,tfd adminis-tntiYe determination 0( such dainu.. What I ha,.. tried to COIlYt)' in this oolumn in .... ry limited space is that the bar has not 50IJghl to be partisan in this mat· ler, It has not 0I'P0$td wol'llmen's compell$ation ~form. It has oppoSed , tw..'ewr, an attack upon the court system and the independence of 1M judkil.ry. The prus has betn utnmtly critiaol 01 the role of ~~rs in this proc~ howtv-er. [think the ItlliSlatiYe ..khat., though at times tedious and hi~hly pa.rti$ln, has ~$ulted in a greal~r aw.annw that tho: currmt system is not the "gold mine" it has betn paintfd to k lor Iiwym ,,'ho handle clients with work· men', COI""ellQtion problmlL It has been tvi<knt that mtdi. W costs. as .... tt ;lS somt unique arnnatmtnts which ifftd 1M funding 0( various assilned insur.r.nce ~ play SOfM role in the current crisis which has a bottom·line crisis 0( costs. These an tsClIlating beyond the CUfrtnt syslf111'S ClPKity to deat with tho: 0Ytn1l costs, There is blame enough for all irwolved, but this is not i lawyer problem and the I/OV'TROr admitttd this to me. Hislawyer·bashing in the pre'u dots not represtnt his vi .....-s exprUitd fact to face with me. •

•

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d May 1992 / 169

BAR BRIEFS

Ross hoI-.d •• _ of CU .... rt.nd Alumni of the y _ Fami ly Courl Pruid ing Circuit Judge Sandra Ron w~. honor.d ,. -

eoop.. elected to Americ.n

1992 Oistinguishtd

Lew In_tltute Council

Alumni by CumbtfIJond &1>001 of ,-" SMnIord Uniwnity.

N. L« Cooper fA Birmingham. Alabl· ma. the prutnt cn..ir of the AnM:rian Su A.noci.ltion'S Hou$t of Iklegites. his bren ekcted 10 the Council fA The Americ.an uw Institule for an interim term until the Insl itute's 1992 annu.al lTIHting. His TWnI' tiltn will be ",bmit· ted to tilt Institute's InnuallTlHting in Wullington, D.C. In May for election by the membenhip to a ~gular term. The Council is tile Qoverning body of tht Institute. A partner in the Birmingham firm of MlIyNrd, Cooper, FriellOll &: Gale, p.e .. COOI)tr recetvN both his undergraduate and bw _QrW fTl)m tM UnMrsity of Allbama, whut lie wlS Articles lind ~ Notes Editor of the Alabama Lou> Rtu;tll1. Activt In the Amuican lbr AI.soci.ltion, hor wu ,JI.1te dtlqj.1te fmm 1980 until his e1tction in 1990 to a t...o~lIr term u cn..ir ohhor l-Iouse of Dele· gates. A fonner emir fA the ABA', Litigation Stction, ht chai red its Confertnet of Stction Chairs from 1986 to 19S8. Cooper, a Fellow of the Am.rican Ihr Foundltion, hal aho served ;u a di rector of both the American Bar Endowmtnt and tilt Amtrican Judica· tu~ Society. He is an idvi$tr to ALI's Rtltatement of the Liw Governing

Dickson eppolnt" to stete 1",,'s _ 1 bMoni Nathllll Oicbon,

Birmingham

bwinus.rnaro and IIUomey was sworn in rKrnlly as II member of lilt SUI. ptrIoOnMI boud by Chid Juslie. Sonny Hornsby. Currently Dickson is prui· !knl and chid rllKUl iw offiur of lht Binn~m World Nrwspoptr. A gradual. ol ll(lWlrd Uniwrsity in Wuhing· D.C. &lid Miles CoIlfll'e in Birmingham, Oickwn formerly ..,rwd as _i.\tan! to Gove rnor Hunt fOT minority

ton,

affllirs.

Dic Kson is involved in numerous community seNko ;acliviti., including membership in tho Bett e. Businn. Bu ftau. tilt Naliona! News~pe r5 Publishtrs Assoclulon. tile AI",bam", Rtpublic.l.n Council, arid the Birmingham Chamber of Commerce. A ,,'ell· known public spraker, he is I partici. pant in the ~ Rtpublkan ""rtY'1 Spui<en BulUU .n<J the Robert A. 'WI Institutt It Auburn and the UnMrsity of Ala!»oma in Birminghlm, Ind lias freq uen tly been II gunl on "For The Record: '" public service pmgram on Al lblml Public Ttlevision. He has stMd l.II manager of Vulc.l.n Realty and InWltmtnt Corporation, a subsidiary of

110 1 MiY 1992

law, model codes Ind other prOJ'O"'ls

for Llw uform, Propo. . 1 to. ABA DI_pvte

Re"lutlon Section

unity as one of 1M

The hono'H$ weft l'KI'ljJniud at ~ Wttklw1quet Ktivitia.. Rou ...'U appointed /amity court dis· trict judge in 1980 and was tlKttd circuit judge in 19sa. Silo! i. II form« Jer· ftrson County dtputy district attomt"}l.

Boolcer T. Wuhlngton InsuQnce Com· pan}', manager of lJUD, and an eUtUtiw with C.D.W. Construction Compa· ny, Inc.

-~ Tht Arrwric.an Law Institute "'IS org;o. nized in 1923 "to promote the cbrifiCltion lind simpliflc.l.tion fA the bw and its IIdt.. ;w.bpt.lotion to socii! needs. 10 $ttUU tht better administQtion fA jus· tke. and to encourage and carryon schol.uly and acientific lell/ll work." 1hr Institute drafu (or eoruid ..."tion by its Council lnd ill membersllip and thtn publishes various rutatements of the

The Americin Oar Association's Standing Committee on Dispute Rt_ lution ClIlIir Rob .. t D. Raven an· nounced thlt thor o;ommitlH has urWlimously voted to be,in tilt process of bt<;omilli an ABA SKtion. Section stl· tus will optn up the ABA to the burgeoning number 01 attomt)'l IDd ProfessioNls who hlvoe becornt inYDlvtd in this al'llrOlch to the u solution of dis· putu and wish to actively participate ",·ith the S\vIding CommiUH. Since 1976. the ABA has been a national leader In guiding the disput e resolution lield, fi rst l J th~ Special Committ« on Resolution 01 Mi nor Disputu lnd now u tilt Stlnding Commit· tee on DiJpUte Resolution. If interuted on joining the ABA Dis· putt Rts(llution Section when cruted, or if)'OO "'IIUld like moon information, write or w lu.ry Ray,I2(2) 331-2660, Amuieln Bu ASSOC iation, SllInding Committee on DUpute Resolution, 1800 M Strttt N.W., Suite ZOO, Woshington, D.C. ZOO36.

FOt'd certifie d by NBTA Robtrt It Ford, of tile Birmingham firm of ~:mond " Vines, was certified in Ma rch 1990 in civil trill law by the N'l.IiQNllIoird 01 Trial Advocacy, Requ irements 10' certificat ion in clude: documentltion of at It£<!. 15 tri~ 10 vtrdid o. iudtmmt: 40 ..Jdition.1 contt$ted malltrs; 45 houn of con· tinuing legal educat ion in t he Ihrtt yurs puceding applic.ation (or certifi· cation; submission of a Itll/ll brief for referenets review; provision of (thrtt laW)'tn and tll. ee judges); proof of good stlnding in the legal profession; and a day · long uamination on trial t«hniquts, tvidenct and ethics. •

.i.

THE AlABM" A lAWYER

Notice of and Opportunity for Comment on Proposed Amendments to Addenda Five, Six , and Seven of the Rules of the U.S. Court of Appeals for the Eleventh Circuit and on Proposed Rules Governing Attorney Discipline In the U.S. Court of Appeals for the Eleventh Circuit P~rs~anl to 28 u .s-c. §2071 (b). notice is flereby given 01 proposed amendmants 10 Addenda Five. Si • • and SaV<ln of the Rules of tfle U.S, Cou~ of Appeals 10.- tfle EIe.anth Circuit. Notice is also giV<ln of intent 10 adopt proposed Ru les GOV<l<rNng Anomey D<sci~i "";,, the U.S. Coon 01 Appeals for the EI.wenlh Cjrcuit. The ~oposed amendm811ts to Addendum Saven aod 01 tl1e proposed Rulas Governir.g An<>rney DOscIpline may t>& obtained Wlfhout charge lrom the Office of tha Cieri<. U,S, Coon ot Appeals lor the Ele"""th Circoit. 56 FO/'$ytf1 St.. NW .. A~anla. Georgia 30303 (phone: 1404) 331.(>187]. Comments on too proposed ameodments to Adder>da Five, SI•. and Seven aod on the proposed Rules Governing Attorney D l sd~ i ne may be submrtled In wnting to the CIeri< at the aOOV<l addless priolto Jur>e 30. 1992. Adckindum FiV<l. Secnon (b)l2). first sentence. is proposed to be amended as follows: -Any perron seekIng reI"" under 29 U.S.C. §62t. 42 U.S.C. §1981, 42 U.S,C . §t98.2, 42 U.S.C. §1963. 42 U.S-C. §1985. 42 U.S_C, §t966. 42 U.S.C, § 2000a. 42 U.S.C. §2000d. and 42 U_S.C. §2(lOOe <>r in such other cases as the coun shall determine 10 be appr<>Priate may be eligibie lor represantation." Adckindum S i•. Seclio<1 6.c .. is proposed to be arnerlOOd wnh regard to the extent and maMer 01 circolation 01 cenain back· grouod r&porl. conceming bankrupfcy judge nomin""s and woold read as 1011ows: ' Inlormation race;ved from the FBI aod IRS SIlali be reviewO<! by the chiel judge of the circu~. II the chief jOOge 01 the circutt <:Ietermlnes thaI informati"" in the FBI and IRS repons warrants review. the chie1 judge shall send the reports to tl1e scr""n ing commit!"" <>r to tfle full Coun. If tfle chie1 judge 01 too circuit determines that the FBI and IRS repo<1S contain no negative informatio~. the ch",t jUOQe may issue an orner of appointment"" behalf of too Coun. If tfle IRS r99O<1 is not received i~ a ~mely manner, the chiet judge may waIVe the '6pOf1 , pr0vided thaI the chief Mlge is satisfied, and so r6[X>r!S to the otfler members of the Coon. that tax returns haV<l!leen fited by the selectee as required:

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THE ALABAMA LAWYER

May 19921 171

LEGISLATIVE

WRAP-Up

By ROBERT L McCURLEY. JR. ProMt. procedure The Problllt Codt '''is .tvistd lind bt~mt rlffeli\'! January 1. 1983. ~ proNto committee thtn procuded to draft tilt Uniform Guardianship and Prnlecliw Proceedings Act which wu

The followi", is ~ KClion-by-section mitw 01 the bill ...·hich tw bo:m inlroductd in the HouK 0( Rtprtsentatives by Rep rutnu!lve Jim C~mpbel1 of Anniston and in the Senate by Senator Doug Chee of Anniston:

also pasKd by Iht \.fgi,lature and efftc_ tive Janw.ty I. 19S8.

For the luI _ral years tht probate comminH hill studied Iht procedural s«lions 04 tilt: Uniform Probat. Cod. which wer. dr.fted by t h. NlIt ional

IS. Penonal Rttt"H " lItivt 10 ProctfCI l'Ii thoul Court Ordtr: El<ttptioft A personi] repreHnlllli"" is to procud uprliitiousty wilh the KUlement and dislribution 01. dtudtnt's t.sllte wilhoul court order, but nuy invoke court jurisdiction wIltn ntcnsary.

Conftunct of Commissione rs on Unifonn ~ws. It ~ dettomintd by Jao,.oytrs and iudia IN! thtc most entia! lfUS nmli"'ll rtYiJion ....."' tilt p"rsonaJ rtpI'Q/!nt.lotive duties and pOI«rs. hood iIIld a dtlermiNlion of re.uoI\Iblt compenulian. 1lx commiUH followed iu policy thaI a pt' .sonal . tprUtnLltivt should have urtain proscriMli powers whilt leaving 10 the probate coort to approve addition· al authority. [I fu rther rtducod the amount of bond uQui ••d from double lhe \/;II\It of the watt 10 tqU/llthe ''atilt fI the atilt. Both pn:Msiorq; .....u ton· sUimt ,,;Ih ~r.lblt provisions of. the CUl-rdi"n$hip and P,ol«I;,,,, PrQCtrd-

ings Act. The dtfin ing 0( ruson~ble tompens.lltion is not included in this bill. I'rdwor Tom Jones of \tw: UnioJersity 0( AI~b;\rrwo ha KlWd ill reporter for this rtvision. The C(KnmittH com;,ttd 0/, E.T.Brown, Jr. Judge M i ~e Rolin I'rofe»or Annette Dodd Randy Fowler Keitll.'osttr Norman W. Harris, Jr. LyrnlI1 F. liolland, Jr. Lou.is B. Lu$k Jot ~kE.lrchem Judgt LIonel Noonan

",L_ J~ Gtorgf; Rrynolds Judgt Frank Riddick Kirby Sevier Judy F. Todd IAonard W.rtlltiml'r. III !lob Woodrow. Jr. John N. Wrinkle ]72 1 ~y]m

ec"...

ll)ullts: R. btioa and U. 14. 1IIlll)o 10 "-nonl Inlorul" i" [ l lIte: SlIndln. 10 Sut "IlIe prrsona.l rt"JIreKnllt;,,,, iJ; a fiduc;"ry who musl follow the p~nt prrson standard and if named as Ihe perIIOnal rtpresenllllive btaoUle of 5pi'cia\ s kill S, is under a duty 10 use tllost skills.

16. Ou b' of Penona! R. pre H nllfu...:

II. O, ,,oh,lIo,, of El lalo al Ou th, R.."lullonl Th is s«lion (Odifiu the prestnt liw tlleal upon tht dUlh of i person. tile dtctiStd ptnon·s rul property p;wtS to htirs. ...i1ilt ptTSOlVI property pwes 10 the ptTSOlVI repruentativt 10 lite dis· tribuled to lilt lItirs. Roth rul and ptrsoou.l proptrtylore subject 10 oomestad allo...-anu. rigllts of credilors, elc. 12. Tlmo of Accru I I of I.l u \iu and

,-"

Althougll Ihe duties and poI«"er"S of a penon il reprutntative commence upon lppoinlmcn t. the pOWers relat. N.c:k wilh rtgard 10 KIS wllicllare beneficial 10 Iht eslale performed by the pe rsonal rtprue n, .'i~ prior \0 Ih. appoinlmmt. EVffl prior 10 \tw: ~n\. menl, lhe prTSOlVl reprtwnlilh'<! may aorry out the ...Tilltn i""ructions of the decedenl felliingl" the dectdent·s bcxIy. funtnol and burial.~rntn~ 13 . PrIorll)o Amon, Dlff.n nt Lett ... Tllis ,ec l ion estlblisllu prio rily if more than on. sel of lt ltt .. is iJ;,u.d .

In, ... " torylnd AppnlH me,,1 Unlus Iht will prO\lides oth. rw i,~. the prrsonal rtprtKntative wilt U.lually have 10 file In in ven lory with in two monlhs. The inventory !hall bt ~nt by the peTSOlVI rtpreKnUoti"" lo;my intereslt<! prnon who requests it.

17. Dub'of Pnsonal ReprUe"lIfu...: Supplemenllry 1".... " lory The peuonal rtpft.tn l~ti~ shill malet a suppltmtnl to \tw: inil;"1 iIMn· tory if additional property is m ttd or 10 tlleange erromous markel value. or ~riptionJ.

IS. Ou l)o of Peno....1 R. present.th...: Pououlon of Estltt ~:mp\ as providtd by will. tht pi'rsonal reprurnlllti\t!hall takt p<>S-"'ssion or control of Ihe decedenl's property. ucept. lhat any rca! property Of t;mgiblt

McC-,., h _ _L~.~

.... _<11 ...

-~ ..... ..-... ..

-~ .....

~~.... _ _ !rom .... ~

TH E Al.ABA."IA l.AWYER

pe .. onal prop.. ty rna)' he left with Or surrendered to the person presumptive~ entitled 10 il until the personal represen· tative needs it for purposes of adminis· tration. A personal representativt's written request for deli".,ry is conclusive evidena of its neceMi\), for administration. The personal representative may pay taxes and e~penses necessary to man · age. protect and preserve the proper\)'. 19. Power to ""-oid Trand.u The personal represenlative has the exdusi,~ right to =moe' property that i. nec.,,,,ry for the paymont of decedent's unsecured debu whose transfu the law deems void or voidable as """ilUt creditors. 110. Powen of Personal Repn:aenb· tNu: In Ceneral The personal representative has the

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•Gast,,,,"oIog,

.' 110,

I Ii

'''''' ~ rr . i FIIII_

· N "~oIog,

THE AU\8AMA UlWYER

.am. pOwer over the title to property (subject to section 14 and IS). as own· ers would have. in trust for the benefit of the creditors and other interested P<'rties. Such power can be eo,cut ed without notice, hearing or court ord ... Ill. Improper Exert; •• of POWH; Bro.ch of fiduciary Dub' The perwnal representative'. liability for the imprope r exercise of pOWer is the lo3me as that of a trustee. 112. Sale. Encumbrance. or Tran"clion lnonn'ing Conflkt of Interut; Voidable; Exuptionl A sal. or encumbrance involving a conniel of interest of the personal rep· resentalive, Ih. personal representa · live's spouse. agenl, etc. is voidable unle.s the lransaction is authorized by the will. app roved by the courl after

notice to interested persons or oth..wist authorized by law.

113. PeUOnl ()uling with Personal Reproaenlath-e: PTOltdion A person who duls with a personal representati\'\! in good faith for value i, protect~d if the personal representative propul y uercised the power. Except for limitation endorsed on the Ittte ... nO provision of th e will or court order limiting the pe rsonal represe ntative's powers is effective against any person who does not have actual knowledge. 114. Tnn..ctions Aulhoriud for P.r_ sonal Repn:senlloli"u: Exuplionl Thi s section parallels the conserva· 10T5hip law ;n that it enumerates actiOn> lhat the personal rep,..... ntati'.. may take wilhout prior court approval

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Maylm l 173

un less the will or cou rt ,pecificaJly oth· enoise restricl$ the action. 115. Tnon »elion. Aulhoriztd for Per..,nal RepresentaU,·u; J>ri.o.- Court Appro"l l Thi. seclion para llels the COnServatorshi p laws in Ihat il enumerates action that may only be ta ken wi th prior court app roval unless the will e.pressl~ aulhori... such aClion.

U6. Power. and Duties of SU~flUlor Pel'$Onll Repru entative A suCCeSSOr personal representalive has the same power and duty as the original personal representali"" except as to any powers upressly made pe r· sonal to the person al representative namod in the will.

reslriction does nol apply for recoipt of property, in an emergency when COn· Currence cannot be reasonabl~ obtained or when a cO' representati"" has be.n delegattd to ad for others .

118. Powe.. of Survi,i ng Personal RepreHntatiw. Unless otherwise provided for in the wi ll. aft .. the termination of a personal co· represen tative, tho remaining corepresentative may exercise '''''ry personal representati"" power. f19. Expen... ln E.tate Litigation

The pe rsonal repres.ntati'·e is entitled to receiw. nectuary expense, and di.bursements, inc luding reasonable attorney's fees for defending or prosecuting an action.

0 17. C...."pren ntali"fl: When Joint

UO. Pn:w:ffiIings for Reoiew of

Action Required Unless the will provide. othe""'ise, the concurrence of all co·representative. is ge neral ly required an all acts . Thi,

Emp]oyment of Agents and Compen..tion of Penonal RepreHntal",u and Employeu of E,tate Aft. r notice to all interested partie •.

the court ma~ review the reasonablene.. of the compensation paid out of the estate and order a refund for any excessive componsat;on . 121 Hond

Unl'!' "'aived in the wil l. the pe r· son al repre5e ntat ive must u ecute a bond Or giw. collat ..al g~nerall~ equal to the amount under the personal rep· resentative's control less the value of propu ty unde r . ection ]5 that can only be sold or co nveyed with court authority. Also. the cou rt may waive the bond with the conl(' nt of all inter. ested partie•. Ew.n though the bond is wai""d in a ",ill, it may nevertheless be required under limited circumstances. such as the likelihood of ",aste occurring other· wise. 122. Tenns and Rt(]uirementl of Bond. The section est.ablished the tenos and r.Quirement. of the bond such as the joint and s.t1,·eral liabili ty of the personal representati .... and su reties. U3. Prior UWI Repe. ltd This secl ion enu me rate. those sec· tion.< speci fically repealed . E~i.t;ng E. Iate. Estate. filed prior to the effective date of this act (January 1. 1993) continue under the old law unless they elect to come under the new law.

124. Application to

• •

court room assistance by our clinical reps

GRATIS wriHen report If case evidences no clear

merit or

cause Is poor

• We are simply a referral service. We work closely with you to BUILD YOUR CASE • All medical experts BOARD CERTIFIED

•

fOO" Stal s..rvIce f AA (813) 573-t 333

174 I May 1992

125. A'"(Iiding Conflict of Law. Nothing in this act will abrogate any right conferred upOn a perSO!l<lI repre, sentati". or fiduciary under any other act.

127. Effecti\-e Dat. JanU31')' l. ]993. For further information . contact Bob McCurley, Alabama Law Insti tute. P.O. Box 1425, Tuscaloosa, Alabama 354 86 or call (2(}5\ 348·74 ] ]. • THE AU\BAMA LAWYER

BUILDING ALABAMA'S COURTHOUSES PICKENS COUNTY COURTHOUSE By SAMUEL A. RUMORE. JR.

The following continues () historJl of Alobomo's COunly cQurlhQuses_ their origins and some of Ihe peOple

Th, At.b. .... LeUl., r plans 10 rutl one county's 510' 11 in I!QCh issw ()/ the mug_ oline_ If !IOu haue <mJl photographs of eorlll or present courlhouses. please forward Ihem 10' Samuel A. Rumore,

U'M C01'Ilribuled 10 Iheir {fI'QU.'lh,

Jr.• Miglionim & Rum{ll'f!. 1230 Broun

Marx Tower. Birmingham, Alabama

'"''

II II

Picken , County

he Pickens County Court· MuSe i. prob;obly the but known courthouse in the slale of Alabama. 1I i. not famou~ foJ' 11$ archit~dural style. nOr is it revered fo r a memorable historic ~nt. Inste~d,

il is rena....ned for a sin-

Abo . ., Plehn. Countf Cou,."ou . . ; Rill"" The mywteriouo wlnclow. I.... ..... wl

gle pane of glau in an anie windnw. Many prl'SQll$ b\>lil'\'e that thai pane of

glass contains the face of a ghost. An arrow on the courthouse wall points to the particular pane, ind depending On where One stands below. a viewer can see something in Or on that glass. It appu" 10 be the visage of a man. Before telling the story. some background infonmtion on Pickens County is in order. Pickens County was cruted by the Alabama Legislature On December 19. 1820. There is some confUSion and controversy concerning the identity of the person fo r whom the cGunty wiS named. SGme sGu rces claim that the name hono.. J.o;rad Pickens. the 5«ond elected go..'tmor of Alabama who seOO from 1821 to 1825. lIOW<!Wf, it is not 176 fMayl 9'92

likely that the county would h..... ~n named for him since it was allTlO.';t a full ;'Ur after its creation lhat h. won elee· tion as go....mor. Most historians insist that the cGUnty was named for General Andrew Pickens of South Carolina since a majority of the urly settlers were from that state. According to Willis Brewer in the book Aloixlma: Her Hislory, Resourr:es. War Record. orld Public Men. Andrew Pickens was born in Dauphin County. Pennsylvania in 1739, but his parents settled in South Carolina during his childhood. He fought the Cherokees in 1761. and wGn much distinction as an Anny officer. During the Revolutionary lliar. he r<>.le to the rank of brigadier

general. later he seIVed in Congres.s. and held oth.. dvic honors. He died in 1617. It was quite Mtural for the South Carolina senlers in Alabama to honor his Mme;n their new state. The first court. in Pickens County ~re held at the home of Jacob Dansby. The first jud~ was So lomon Marshall. Little ;5 known of the first courthouse in Pickens County, although a reference was made in an early history of the county to a "little log courthouse." The county seat town was called Pickens CourthGuse. later the name was shortened 10 Pickens when the courthouse was removed. finally. il became known as Pickensville in 1835. Pickensville, Alabama still exim today. THE A\.o\8AMA LAWYER

As Pickens Counly grew. its citiuns domanded a more centraliud c()IJnty _t. On March 5. 1830 tho ftdtnlllO"-emmenl made I irant 0/ 80 leru of ~ in .......1 was the ~e goo. graphic center of Ihe county for Ihe purpose 0( establishing a new county _I. Struts wert JUrveyed. and in 1832 a courthouse: and }iii wert built at It.. new t""'l1 of Carrolltnn. Carrollton wu named for Charlts Carroll of Carrollton in Maryland. Car· roll. who died in 1832. was the last Sur· viving signer of lhe Dtdaratinn of Inde· pend.nce. It il inleruting Ihat he at..1IYS litntd his rwne · Chirles Carroll 01 Carrollton" so tlw the British "o«lUld not confuse him with any other Ch.irlts Carroll. This bra\'( and fier«\y palriotic man u~d the caus. for Amer;can indtpendtnct in mill)' ways. He was a m.mbtr of the Maryland Senate. Ihe Cont inental Congn", and la\(r, Ihe Senat. of ttlt Unilfll 5tateJ. AI It.. timt of hi s dea t h he wll held in g rell ,attem.and mlny places in this country ....... named in hia hooor. Littl. il known concerning the con· struction of the nrst courthou$fc at Car· rollton. Much is known of its dtslruc-

""'.

April ~.

1865 Union lroops under General John T. Croxton md tnlerW the cily of Tuscaloosa. Their miuion was 10 dellrO)' Confederate property. lhtse lroops burmd the Uni\'(f'$ity of Alabama. The nut day, a d.tachlMnl under Captain William A. Sutherland lefl Tuscaloosa Ind enl..ed Pickens C()IJnty in Karch oj information. and as a duO)' for Croxton's Irut intentions, which wert to destroy Ihe railroad bttWffn Dtmnpolillnd Meridian.

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C~pl~in SUlhtriand wrote a report about hi. act ivit~', He notw Iml his IMn cmr&w plr.nlly intn ClTroliton lnd Qplurtd nine Cooftlkrate scouts. Odor. Invlng Ihe lown on April 5. 1865 hi' men burmd the commw..ry depol ,nd Ih e to urlho uu. This du tn.>e:tion look pIKe in lilt ~I wuk of the war. and i00i1 residents cnnttnd 10 Ihis day that the burning of the Pickens County Courlhouse by the Union troops served no useful military pur-

.,..

Pickens County suffered an rconomic drcline in \h( pO$l.Civit War period, but a new tcK.IrtOOuse was built;and tilt cost was bttwftn SI8.000 and S2(l,OOO. ~ citiuns wtle proud 0/. their ...... c:ourthouM. Yet. I~ befell tilt building ~ mnrt. On lilt night of NCMmbtr 16. 1876 the courthcoJK burmd lPin. All of the probite books and 0/. the nttltr record. in the courthnus.: ...·.r. lost. Arson was suspectw. but no one kntw ttlt culprit. Once again th. titiz.nl of Pickens

""*

Counly rebuilt their courthouse. The COIl\tT$IOne was laid on July 4. 1877. According 10 (()IJnt)' rtCnrds. the COr· n ertto ne ( on 117.50 . W.P. Owens removed the brick of Iht old court · house for tht sum 0/. S2 ptr Ihouoand. The new building was cOOlpleted. bul the first court sessions wert not held in the new courlhnuse unlil March 18, 1878. The total COil of Ihis slructu re was 511,675. It is a two-story building, with an attic or 8/lrret. The . rchit.ctural style of Ihe courthouse il Italianate.;and Ihnugh quite small by mod· em standards. It KrveS the citizens of Pickens County to Ihis day. The s\a# is now sd lor lilt Jlory 0/. tht fJ.ct in tho

window. The QUK of lhe second burning of Ihe courlho uit nmained a myslery until January 16, 1878 when, lllTl()5l: by accident. «rt.ain facu were una'lVI:mI. It s.:emw thit a blKk fugitiw named Bill Burkhalter Wli apprehended and confused to I numb .. of crimes in Pickens County, including bu rgla ries

Don't Risk A Valuation Penalty. Introduce Your Clients to Business Valuation Services. Jo hn H. Davis JU. PhD. MAl. SRPA, ASA, president ciBlI5;f\ca Valuation Services Inc., is theonlydes;gnated ASA ~inC15 Valu:uion appraiser in Alabama. BlI5iness Valuation Services provides OOI"ISlIlrntion by the hour, appraisal reportlI and exptrt testimony in casesci:

o Esrntepbnning o Esratuettlement o Marital dis60lutions o R«apitali~ions o EmplO\'C't wck ~ip

o Bankruptcy proceedings o Mergen oucquisilions o Buyo$Cl1 agrttmena o Dissident stockholder wia

pla ns Contact John H . Davis Ill , PhD. MA l , S R PA. ASA 4 Office ParI,; Circle . Suile 305 • Binningham. Alabama 35223 P.O. Box 530733 • Birmingham. Alabama 35253

(205) 8'iU-I026

...100 ... ' '''''

THE ",""BA."IA LAWYER

Ma}' 1992 1 177

and arsons. In hill confeMion he stated that Henry Wells had burned the court· hou ... Deputies were sent to ilrrest Wells who. it WilS reported. tried to escape but was shot twic •. The wound· ed Wells was returned to Carrollton On January 29. 1878. On January 30. 1878 Henry Wells supposedly signed a eonfession. It i. presumed that he eould not read Or write sin"" the confeMion was signed by a "mark." In the conf..sion. he admit· ted hi. involvement in several burglar· ies. He alw admitted breaking into the CQUrthouse with Bill Burkhalter on the night tho building was burned. They had tried to break optn the probate

178 1Mayl992

office safe . but failed. He had left. can· die near some papers. He then cOnfUSfd to 50"'" other cri"",s but did not specifically state that he had torched til\! courthouse. History is cloudy at this point. One version of the story is that a group of citizens, possibly a lynching mob. learned that Wells had been captured and was being held by the sheriff. The wounded Wells was kept in the a!t;c of the newly completed courthouse for his own protection. He peered out Ihe window in Ihe attic at the crowd below. At that moment. the legend st.tes that a lightning bolt from a thunder storm struck the courthouse. and like a pho-

lographic negative, the face of the fear· ful Wells was etched On Ihe window pane. No on. k nows the particulars of Henry Wells· death On Februa ry 3. 1878. It is not certain whether he died of his wounds or whdher he died at the hands of the mob. What is certain is thaI the minutes of the county commis· sion on February II. 1878 reveal that a war ... nt was issued to Watts and Carson in lhe amount of $5 lor making a coffin for Henry Wells. Another war ... nt in tho amount of S2 wu issued to tsaac Bostick for digging his grave. Henry Wells was gone. but his image on th. window pane remained. According to various accounts the image on the p.ne has been scrubbed with soap and rubbed with gasoline. It resembles an oil slain. but depending on the time of da~ one can see the outline of a man's face. with eyes star· ing in terror. The ghostl~ visage remains to this day. and curious visi. tors drive miles out of their wa~ to Carrol lton to catch a glimpse of the lace. Thai pane 01 glan makes the Pickens County Courthouse Alabama·s most famous. There is one additional story con· cerning the Pickens Counw Court house. In 1979. Prob.te Judge Robert H. Kirkse~ applied a 1•• wn from histort and wught assistance for the construction of a new courthouse for his county. Kirksey discovered that Congress in 1884 deeded wme 46.000 acres of land as compensation to the State of Alabama fOT the burning of the University of Alabama by Union Troops. He reasoned that since the Pidens County Cour t house wu burned by the same Union t roops. Pickens County should receive compensation of its own. Kirksey further argued that Pickens was an impover_ ished count~ and eould nOI borrow the money to build a new courthouse eslima t ed at live m illi on dollars. He approached Congressman Tom Bevill w ith his proposal. However. to this date. no reparations have been paid to Pickens County. and the courthouse of 1878 ap~ars virtually the same as it did ",·hen constructed. Perhaps a new tffort should be made to COmpensale the county for this wrong from the past. • THE ALABAMA LAWYER

PROFILE JAMES ROBERT SEALE Pursuant 10 the Alabama Slate Bars rules governing the election of the president-elect. the following biographical sht,h is provided of James R. s.-ale. I. is the wi. qualifying candidot. for the position of president-elect of the Alabama Slate Bar for the 1991·92 term.

s....

BORN:

TEACHING POSITIONS:

MIIrch 6, 1944. N;uhville, Ten~ssee

Business law instructor. University of Alabama School of Commerce and instructor, Jones Law School.

EDUCATION: Emol)' Universit)' and the University of Alabama

PROFESSIONAL ORGANIZATIONS;

Bach.lor of Arts, 1967. Univusity of Alabama Juri. Doctor, 1969. University of

Bench and Bar Lega l Honor Society; The florida Bar. 1973:

Alabama

Alabama Stat. Bar, 1969; Direc· to r. AI~bama Defense Lawyers ,usociahon.

i>III.1TARY: Captain. U.s. Air Forc. Judge Advocat e Cenora l Corp

1%9·1972

CIVIC ORGANIZATIONS:

Majo r. U.S. Air Force Reserve 1973-1983

LAW PRACTICE: Began private practice of law in Montgomery. Alabama in March 1972 and has been involwd in the private prattie< of law for 20 years. Partner in the MontgOmery firm of Robi· son 0; Bel.. r. PA

Served in leadership pOSitioll.l in various ei,·k.• thletic. edu· cational. and charitable activit ies. including: United Way. Montgomery Museum of Fine Arts. Sha kespeare Festival. S.U:.P. Program. and Y~ICA.

CHURCH: BAR ACTIVITIES: Served as secretary of lilt Montgomery County Bar AMocil' lion . 1982·]985; president. Monlgomery County Bar As.soci· alion . 1986; bar commissioner. 1981·pre.. nl; member of Il\.\u rance Programs Committee (brought ,I,]~1 program 10 sl.le bar): chairman. Disciplinary Panel; chairman. MCLE Comm ilSion: Execu t ive Committee. 1988·1990; Disci· plinary Commi"'ion. 1990·91. Various capacities with both county and state bars.

THE ALABAMA LAWYER

Adul! Sunday School ttacher and deacon. Trinity Presbyte· rian Church.

FArtl1LY: Married to former N.ncy Lumpkin of Be55"mer. Alabama. Three children; Shelby. age 22. a senior at Aubum Un;,.. rs;· ty at ~lontgomery: Brooks. age 20. a sophomore at South· em Methodi.! Uni .... r,ity; and Margaret. a seventh·grader.

M.yl991! 179

CO.Yrft..l

COVENANTS NOT To"'>!""·,,, COMPETE IN AILABAMA: REVISITED} By MICHAEL L. EDWARDS AND MICHAEL D. FREEMAN This ~rtide discusses situ~tions in which one person covenants Or contracts with another not to compete. The enforceability of such agreement> is ..stricted by statute in Alabama and many other states. Z Even when the nant is of a tIl'" expre55ly allO'.\...d by the Alabama statute. 3 it still is subject to a jud icially adopted test of rusonableness. This article p. esents examples of different situ~tions in which such agreements ha,.. been used and subbequently con· side~ by the courts. Howt"Wf. the reader Should ,.member that there is no paucity of authority in this area. In jrnt the last ten years. the Alabama Supreme Court has decided over 35 of these cases. As o~ court noted regarding the law on this subjed:

= ..

This is not one of thOSl' qu .. tions on which the legal researcl\{:r cannot find enough to quench his thirst. To the contrary there is so much authority it drowns him. It is a sea - vast and vacillating, overlapping and hewil· dering. One can fish out of it any kind of st ... ined sup. port for anything. if he lives so long. This deep and unsettl.d sea pertaining to an employee's covenant not to compete with his employe r after te rmination of employment is really Seven Sea> .... 4 At lust one judge faced with the duty of decid ing a case involving. covenant not to compete dedined to embark upon this "Seven Seas" of authority: Because of a demanding caseload. family responsibili ties and a de.i re to co~i der other matters in life. this court has been dissuaded from ... ding all of the avail· able authorities.S

The Alabama statute applicable to covenants not to compete provid..: [a) Every contract by which anyone is restrained from exerciSing a lawful profession, trade or business of all}' kind otherwise than is provided by this section is to that extent void.

I SO / May 1992

(bl One who sells the goodWIll of. buolness may agree with the buyer and One who is employed iI5 an agent, servant or employee may agru with his employer to rtfrain from carrying on or engag· ing in ~ similar business .nd from soliciting old cus· tomers of such employer within a specified county. city or part thereof so long iI5 tl\{: buyer. Or all)' person deriving title to the goodwill from him. Or employer carrie. on ~ like business Ihertein. (c) Upon or in anticipation of a dissolution of the partnership. partners may agree that none of them will carry on a similar busine55 within the same county. city or town, or within a specified part thereof. where the partnership brn;ness hilS bten t ... nsacted. 6 The .tatu te l>egi'" in subsection (al by declaring void all contracts by which anyone i. ""trained from exercising a law. ful profession. trade or business. In analyzing a s ituation involving a C(l'Iitnant not to compete governed by Alabama law, one generally should begin with the proposition that all such covenants are void. except as .ubsections Ibl or (c) t.empt the C01... llImt from the blanket prohibition of ,ubbection (a). One also should consider whether the covenant can be characterized as a lawful partial restraint or forfeiture provision not governed by the Alabama statute. Of course. actions on contracts containing covenants not to compete. in addition to satisfying the Alab.lma statute. are subject to the same defenses as any other cont ... ct action. For . xample. a party seeking to enforce a contract containing a covenant not to compete must ha\"t been qualified to do bus;· ness in Alabama at the time the covenant was executed. 7 Uke· wise. to be enforceable the covenant must be mutually binding and provide consideration to both parties. fn H;// u. Rirn,8 the employee dance instructor agreed not to compete after termination 01 his employment. but the employer in the cont ... ct did not agree to provide the employee with any minimum hours or compensation. The Alabama Supreme Court held THE AL\IIA/>IA LAWYER

th~t

the contrac t lacked mutuality at in inception lind relNndtd tilt cut to the circuit court for II determination u to wlltthtr TtuorW>le employment in fact had bttn proVidtd to tilt emplO)ft befou ttrm;N;tion 01 the rtlationsttip. Howe~ r, merely btClun II co\'.nant i. made lit $Ome pOint aftn employmtnl cOmmencU does not necugrily under it invillid for lack of considtration. In Dough/I'll v. Cllpilal Ca. Co .•, a ils comllllny sued ;15 former bTlnch manager · routeman to enforce a covenant ,iined after employmtnt had commenced. The employment continued ror eight month. after execution of the ~nant, at whkh time the employee left voluntarity , The court held that the "continue~ employment" of the emptoyee constituted suffi . d.nt corui~eration.1' Wh ile thi' article ((>CUSts primarily on the validity of cownanu not to compd., puctitionus should be IWIIU tmt li!iption in this aUlI oIIen includes other claifN IIri,ing out of the employment ntll ioruhip lind ils luminalion. For uampl •. in J/lnlft S. Kempn 8: Co. SoulhizaJt./nc, II. CIu 8: Assoc;II'••• Inc .. 11 Ihe former emplo~ r ,utd it, former tmploytt and hi. new empLoye r. ulling for injunctive relid 10 tnforcethe covenant, damage. against the formeremploy· ef for breuh of contrllc\, lind damages Igain,t the new .mpl~r for knowing and intentionli interfeunce with tilt cQ\"tnanl. The Supreme Court 01. AIab.tIN rul~ tmt UI the covenant wn .nforceable by injunction, (21 the former employee Wili liable for damage< for bruch of contract. and (J) the new employer was liabl. for damagu for Intentional and knowing interference wilh the contractual relation.hlp betw.en t he plaintiff former employer lind it. former .mploy«. For purpolu d discuuion. the COYfnan!s nrJI diSiIlOl«d by the Alibl~ iIIItult mI)I be divided into thrtt aote\lOfiu: (II .~ .. mpLoyer. (2) Silt 01 the goodwill d a bIA;nus or I"'rtr>tuhip dislolution. ~ !J) I"'rtw ..,.I.... inlS ~ 100ft;· tuu proYISionJ.

EMPl.OVER-EMPl.OYEE COVENANTS

frequ.ntly. /III , condition of employment or othe""iK. employees will )I/.ree not to compete with their tmploye" after termination of Iheir employment. AlabaTTll courU view such Ttstrlints with disfavor ·~Ust th.y tend not only to deprive the public of efficitnt wvke. but ttnd to imjl(lWri sh the individual ."'1 As the Alabama Supreme Court declared In

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Calho<m v. lJrmdk. Inc.. ' ) "0rK dots not mw ~ unf.tt.ffiI right to be (ree 01. compttition in this counlT)', ~ coolraoclS which seek to rest .... in om in the audK 01. his right to P"'C' liu II bwfullndt or profasion Ire disfllVOTtd." Consistent with the «I\Irt'l g.n ..... IIlUitudt 10000'lIrd postemployment mtr.lints. the employment ~ion to the genern prohibruon oIall contJ'llctS in l't$lnint d tr* is narrowly toIISIrued. For WImple. AIabImI courts will not tnforct II con· tra.ct pl"O\lision restricting the prKtltt of ~ profUSion. This rtfusal 10 tnforu such contTlCIS iJ based on the court's intt rpret.otlon of .~tion (I) to the AIabaTTll Wltult which provid ..: Every cont racl by which anyont i. rtst rain.d from exercising a lawful profusion ... othuwi.u than is provided by this section is to tmt ut.nt void. Neither subwction !b) nor ~tion (e) dthe Jtiotute uemp\ conl1'llCiS , .. tncting the pTKIict of II "profusion.- Applying

thi. inttTJI..,t.>tion, tilt Alibimi Supreme Court consistenlly POJt~pIoymtnt Tf5tnctionJ signed by

tw refused 10 enforce

-profasion"1nd who art "prof".... ion· Alibimi hal ,tferr~ to the b It Dun Roscoe Pound'. dennition found in the Lttwg€r from AllliquillJ 10 Modem TimU: tn defining ...'hat is

,Is: the SU~mt Court d

The term refe~ to a group of ITH!n pursuing a leamed art as a common ca ll ing in the spirit of a public wvke - no Ins i public KMce beColust it <TIll}' incidtnLllly be a me~ns dln..:lihood, Pursuit 01. the Itamed art is the purpOSe. Gaining ~ livelihood is ir.cident.> l. ... hereM. in II business or trade it is Ihe enlire pur · pow)'

TIlt ao!lings the court 1w dtfined as "proltssions" include physiciuls)S \'tt"inuilln •• " lind certified public iecOUn Llnts.'1 ....... 11 M public aaounlllnlJ)' liowev«, in DobIHru D. Gell &terminalan '" AJ.....,.Inc, the court, noting Imt "there an multitudu of bUlinessu but ftw profusions," reject ed the argulTltnt Imt put cootroltechnici.lns wert prof«Jionals by virtue 01. I st.>tute referring to them as "persons tngag~ in proftuional seMcn." The court al.o has corutrued the wording of the Alabama stitute, which allows rtstriclive cownants only as to "an IIStnt, servant or .mployu," to preclude the enforceabi lily d cownan.. tnt.ffiI into by indotpendtnt contrKto~ ind Silts agentJ.- In Pnmkr IndwlriDl CoIJI. D. Marlow." the court ufused 10 enforee covenan.. betwe.n II corporation and i.. "indtptndtnl Siln ......: In dttenninina: whtthtr the indtptndtnt salts OIitnts wUt indtpmdtnt contrKton (cownant not enlorctablt) as opposed to tm~ (COWfWlt enforet'. ~ltl. the courtllpplitd tilt foIloo.ing ttll: For 0fI<' 10 be an tmplo)u. the other party must retain the right to direct the manr>tr in .... hich the bus;nus shall be done. as ....11 ... the rtsuilio be lICtOmplishtd. or in other words. not onl~ .... hat shall be done, but how it shall be don •. 22 May 1992 ' 18 1

Another W3y by which tht C()Urt ~ n,lrrowly constru~d tht uctplioru to tilt AIalwno wtute u to pl'ttlud~ ~nforumtnt of C~!Wlts by anYOM otlltr than th~ plrtiu to thtm. For tDITlpit. in " ¥all Wel*Supp!*Co. D. Industriaf Sal"tl/ll'tod· udJ. Inc~"rJ tht court, rn"tning ItNl j..Jgt •• Iktision ~I. ing injurw:ti~ r~litf. rtfustd to permit a succusor 10 the tmplo)'!r to miora lIO!>COIl"II)eIition ijlrttrTltnts bet~n lilt emplo)'t'u and the prm.culOr empIO)~r. In thi. UK. tilt plaintiff. Industrial Saftty l'roduClll. ~ obWntd _ t s from I number of ill ~mployus. Substqutnt 10 obuining tlltR to:IYfnants.lndwtrial Safety Products engaged in I num· ber of corpOrate reor8anintions whereby it merged wi th another company and teml"lOrarily changed il$ name. It lulm· qutnlly tmerged from thue rtorganinlions as Indust rial Salety Products. I\wIUR tilt court comidertd the I'«Irganlud [OOustr~[ Safety Producl$ a Iotpanlt enlity from lhe Indwtrial Safety Products lheal originally obLain.d the covenant •• il ~fused 10 .nforce lilt ~nants..l< Despil~ tilt disfavor with ",tJith the court Y)"S it views poll. .mployment .gr«..... nts, cO\~""nts hea~ betn enforced in n ...... n)US cut$.. The Alaboma Sup,. .... Court and Court 01 CMI Appal. Nvt mforced _ I S not to compete rTWk by top I.~I ~nking uuuti~.," insurllnce eltcutivu lind .nls. M tdtvi.ion b~en." Qdio :mnoun«n,M news· paper publishen.B II:Mrtising man.agtn.lI gas companyll and dry cle.ning rout~lIItn,3> pest control m.l.rugen Ind technl· dllru.:tl t~1 ~nts,S< and tl'tn coffee salulmn.:IiJ In determining whelM' to enforce a contTliclUloI provi.ion in restraint of employment. the Alabama Supreme Court asks whether:

I. tht employer has i protecubl. interest: 2. tht rutriction is reasonably related to that interut: 3. tht rutriction is reasonable in tilllt ind piKe: ,,00 4. the restriction impons no undue hudship on tht tmployH.31 If thout qutslionI an be __Trtd in tht ilffillTlltivt, thtn tht ijlrttrTlent typically will be tnfon:ed. A. ~ cmp/o)w mUl t IIM<e prot« llbltc intu ut Thc AlaNJ1\I. Suprtlllt Court first held that In .mployer must ha~ a · protecllblt inler..!" befo~ its rovtn;onll will be enforced in the 1982 dtcision of DeV"" u. Chea/ham." In DeYoe. the tmplo)'t'r hired an inupe. itnctd employee and trained the .mploytt to install vinyl tops on automobiles. TIlt tmployn Illtr was diKhear8ed and tht employer lOught to tnfon;c a rutricti"",, c~nant prohibiting the tmploy« from working for a competitor for 1i,,",,)'Un within I SO·miitc TlIdiw of Oecuur. The court held that the rtltriction wu not mlorcuble. btatust the employer hid no prOtffllble inter~. The court W!nt on to uptain IhIt in onler for a prolecublt intfTnt to ... ut, "the tmployer mUlt possess ., 'Ubsllntill! right in ilS busintu sulflC"imtly unique to W3rn11ttllt type 01 prOttction contemplated by Iii ooncompetilion aalftrTlfnt."3I The coun lliled:

If an employe. Is in i position to ga,in confidential information, Kens to setretlisu. Or to develop" clost relationship with clients. lhe employer may N"",, a pro· tectable internt in preventing that employee from

182 1~tay 1992

competing. But in the pl'atnt (lIK, Df:Voe I.amed no more than tht ~l .JI<itl.l of the vinyl top iruWl."olion t~. and he did not tngage in lOIiciting customen. There is no Mdtnce that he cilher develotxd OIl)' ~ cial r.l."otioruhip with tht custOlmfi Or ~ access to illy confKlentiil information or tTlide secrets. A Jimple labor skill . ...iIOOutll"lO«, is .imply not fI\Oll(h to g!vt an .mpIO)~r. substllnt~1 protecublt righl uniljlJe in hi. busineu.. To hold othtrwisoe would piKe ;m uoo~ burden on the ordillirylaborer Ind p,..,...,nt him or IItr from sUPl"lOrting his or IItr family .•

Soon after it! decision in lkYoe. the court was called UpOn again to diKws it! prottctable Interest requlrelmnt. In James S. Kemper.1/{) a lumber industry cuualty insurer sued it! fOfm.r ultlman st.king to enjoin him from competing sLaltwid. for a two·yur period. The evidence .ho..... d the employee hid mn tTliined and tl'tn amed at a toss for _r· al yean 10 that he could build up a climt bast. ind ~ "full supervision" OI'tT his employer·s bwintsl in Al~J1\I. from 1963 10 1981. &Kd on tiltH futs, the Alab.ama S .. pr...... Court mlorced thr ~nant. st.Iting that the emplO)'H ·clearIy hid iICCtSS to valuable t~ inform.l.tion and customer rela· tioruhip$ in the courst of hi •• mployment: and thai "such infoT11'llltion and tho clienlele aCQUloinlllnce involvtd dearly constituteldla prot«lIble interest."" Sine. DeVoe and James S. Kemper, tilt protectable interut requirement ~ brtn the focul of much litigation. In a variety of conlext!. the court hal refused to enforce p(l$t.employmtnt co~nant. where the eml'lO}'ment relatioruhip was of ~hort duntion Or WMre thr court felt the empioyft was mort akin to tilt simple laborer in INVo.e. than to tht insuTlln« salesman in James S. Kemper. Foraample. in its 1986 CoIhourI D. Brmdk. Int;. dtcision,~ tht court rt\I!OO I I~I j..Jgt·s onkr tn.ioining an tmploy« ...-hoM job _ to dwdt and refill fi~ extintruishers. The ern,,1oyn If1l\led il hid I pnlltcUble intnat in boI;h its CUitOfTl« ~lationship$lInd its custOlntr tilt. Disagreeinll with the tmployer. the court IItld thai jUll beaUR an e"1'ioyet may haw talked with customm and cw;tOlntn " ' his faa did not suPlXln the trial COIIn·s finding of a "clost relationship- belWttn tilt employee and tilt employn·. cw;tomers. h for tht cw;tomtr lis\, the court hold theal in order to be prot«table a cwlomer lut "mwt be t~aled in. confi<ltntjal man· nt. by the emplo;'l'r.-..l Be<:.aUH the namU of al11M cmtomen; were hpt on a m.l.gnttic board visible to all empIO)'t' ... the court ruled t~ cwtomer list was not entitled to protection.<4 TIlt court also has found 00 prottctible intuut aOO rdURd to ~nlon;e a c~nant sillTled by an iruunn« agent employed for only on_ )"tar who denitd tlIkin8 customer information with him whm ~ ltft.tS I;(lpier technicians who tht court Wd it but. pO...·I..... simple I.I.ltor s.kills." and a ttlevision st.Ition idYtrtising saltsmln tmployed for only two months.." One Ihould not int.TJ)ret thut dtci.iOlll :as ~ indication of t~ court·, unwillingn.... to enfon;e (l)\.Tnants not 10 oompde made by tmplOytf:l. Wl~re a ~""nt is sillTled by ill employn .... ho had substantial customer contact during his emptoyImnt. or had KetsS to confidential Information possessed by his tmployer. the cOl'tnant will be enfon;ed. For example. in Ja~uatY of this ~r. in Cfark v. Uberl/l Nal"l U{e Iruuran«1 TH£ AU!IAMA UWYER

co....

Ihe All.blma Supreme Courl affirmed l judgment deduing wlid II noocompdilion 19rttmml Jigooi by OM 0( LiMrty N"lionll"l inlurllr>te agents lind ""'",«IinQ dlfNQn lioliosl lilt employtt lor bruch 0( tht to'o'ffWlL The emplo)'. «had worked for UMrty Nltional ill In iIl'nt from 1981 until Ilt nJigrwd on Man;:h 4. 1988. Noti"ll I"'t tht clllploy« Will Liberty ~ltiOfl.l,I"I"sot. contMt" with its poliq-holderl. Ind rt(oQni.in8 thllt these relatiO!Uhip. "..,re I -votluable ~." the court held t"'t Liberty NatioNJ "durly" "'d i protecublt intemt in !hut customtr nLltionships. A few months prior to its Clark decision. the court held Hat employers liso II proletublt intemt warrlnting tnfor«· ment of noncompetition provi.lioos wh~re they impart 10 their employeH confiMnlil1 information. In Cm/OJI /kmc$harlJ of the Sooth. {"c. tJ. Purk"II." the Alabama Supreme Court rewrsed a . r court's decision refusing to enforce stltewidt i C<Mllant betWttn Centw Bank and two 01 its former tOp uecuh'lt~ The Irial court hid enjoined tht emplO)'H1 only from soIidt.", Ce-ntnl Bank'i oistinQ customtrs mol emplovtts. but not from compet'ng in the ~nkinQ bUSiness. In nvcrsinQ. the coort stated:

"''It

While wt iIITft with tilt trill jlldgt thit Ce-ntnl BInk his I prot~le intuu! in its nutomtr nl.iltions Ind nl.iltions wilh ill employees. ".., do not agree thatt"'l prOlectable inlernt il limiled to its cuslomerlllnd tmplO}'eei. As the trial judge indicated. Cenlral Bank has I prominenl po.!ition in the ban king indusll)' in tilt stllte of Alabaml. Mor«M'r. Brannon Ind Puckett. as kf)' emplOytts of Central Bank. had ptCulilr accw 10 all of lhe techniQues /lnd stralegiH of Ihe bank rupon· ,iblt for tNI po.sition. II /In emplO}'tt is inll po.silion to pin ronfidenti.l.l inform;otion. ~ to oK..1 lists. or to ~Icp i cloK nllliooship with clie-nt.s. the emplO}'· rr mlY ha'lt i prot~le ;nterut.'" In ~ition to ~r .. l.iIlionships ind KCUS to conl!dtllli.l.l inlormition.1 prot~le intemt llso ClflIM from lin emplO}'u's in~stment in its ~mpIO)·«s. In ,,'lltionIC;" Mutual fnsunma Co. It.. Cornull." tilt Elnoonth Circuil Court of Appeals. reveninQ II summary judgmenl Qranted to an employH. conducled • thorough analysis of the AlabJma deci· sions discussing tht protectable internt r~Qu;,..,ment. After rnling t"'ll protecUoble inl .... t may ari~ whue the emplO}'. ee is in a position to pin confidential information. access 10 oKrtt lisls. or de~tOp a dOH rel.illionship wilh clienu. the Court recogniud lhal a prottclable internt -can Iiso arise from lilt cmp~r'l in~Jl.mtnl ;n its emplO}'tt. in terms of time. resources ind responsibility.- S: In Tt"ersinQ. the Elnoonlh Circuil mled lhat tht triJol court's ruli", could well lu"e the employer's proltclable "invUlment inleTHt ... unvindiaoltd. "Sl B. Restriction muslilt rusolUhly ~l.iIltcllo tmployn's prottdihle ' ntn.11 E'ltn wi1tre:an emplO)"tr esl.iblUhts the .,.;'ten« of I prottcbble inteml. tither in its rustomt .. or confidential information. the court will only prohibit compelition thit Ihrtll ens lhat proletUohle interesl. This point recently was illustnt· ed in the Cc>trul !.km(3ho ....$ deci'ion where the court stated:

We find that the rt$triction .. prdinQ compel ilion in Iht banking businti.l is nasollibiy rtllted 10 Centnl B.o.nk·s prolecl.ible ;nlerut. beause Ihe rHtriction is dtsigned to proted Ctntnl Bank only in the in" in which it has I Iegltimale inttrut: lhe bankinQ industT)'. The aQrumcnt specifiully prohibIts Brinoon and Puckett from competing in lhe ~nkins business: it dots flO!: prech>Clt Bnnoon lind Puchn from pursuing wori< outside of banking."

If Centrlll B.o.nk had illempled 10 pre~nt these employtts from working in another line of busintn. the rest riction would not haw been enforcelhlt. becauu it would not ha"" bftn rusonably related to Central Ban k's protec lable inttrut.!o.! C_ Ruhiction mUll H reuonallie in time I nd pl.ilce The AJilbama mtule Pf"O"idu I"'t :an "emplO}'tt mayagTft with his emp~r to mnin from eanyi"i on or ~i", in a similar busiTltU MMI from solicitinQ old CUJl.omtn of such emplO)"tr wilhin i specirltd county. city 01" put thrrtd so long IS tht .•. emplO)·tr ClOrria on a lih business tht-rtin." The Abbo .... Suprtmt Court dts<;ribu thu sUtutOl)l Imguajlt ill reQuiring that any restriction 1M: "rtllsonllble in tirM lind place." While the singuln word "counly" is used in the statule. I restriction fNy ~r i much wider lru if nason· Ihlt." Whe .. a r~strittion is ~rly bro.ad or othtrwi~ unreason· able. Alabama courts ha,.. the eQuitable powe r to strik. /lny un .. a.sooahle portion and enforce the remalnder.s1 tn Mason Corp. v. Knmedg. '" Ihe Alib.lma Supreme Court conferm upon trial courU the power to rewrite or -blu. per>til" con· ITKlI in this manner. The court mled: We hold thill coort 01 equity his the power to e-nforu i conlnct liol;OSI corTqldition although the temlOT)' 01" period slipullled mlY be unre.uonable. by gnnli"ll ifl injunction THtnininQ tilt lemplO)o«) from compet· ing for a nuonlble time .nd within a rusonlbl~ lru." Whal con51itutn I ,..,uonabl~ 8tographic lI r fi depends upon the proof 01 whal prottdion the bUSiness needs. IU thr Eleventh Ci rcu it recently advIsed in Com ulI.H "To Secure enforcemenl of a non·compete clause within a particular lerri· tal)'. the ~mplO)'tr must demonstrllte that it continun to e-nPl/<. in that loal •. in the activily I"'t il iiOeks to enjoin."" Applying Ihis logic. lhe Alab.l.ma Supreme Court eodorstd I trill judge', order limitinQ to on. county the territorial restriction to be e-nlorwl by injunction whtre go percent of the .mp~r5 custom.., wtn Ioal~ in lhal counly.Q In two othrr C3StS. the court held ell"\PlO)'rrs eMitled to statewidt injunctions "mn it ""as"-" thit lilt e~rs conduct~ sUot~ busillUll mol tht emplO)ota "'d mt~ mponsi. bility.O As the court rnttcl in applying I o;(Mnanllo tht gel>Qrlphic Uta cowring the tnti re Unit.d Stltts tast of the Rocky Mountains. I cownant nOI 10 compete may prO!>trly indud. part 01 Alabama. ,II of Ala~ma. or -mOrt lerrilory than Ihe .Iate of Alaharm: deptnding on the drcutruSIancn.!I< While few Alabama casu expressly discuss whal period of May 1992 / 183

time is r~awnable lor a valid emplO}'ment ..."triction. it is clear that durations of two )'tars and Ius will pass judicial scrutiny.65 On more lhan one occasion the court has stated. "ITlhere can be no doubtlhat a tworj'\'ar period for the restriction;' rell$On' able: One shnuld be cautinus. hnweveT . in attempting to ~nforct an empl<l}'lTlent oownant fnr a duration of looger lhan two years. In Mason C<np. v. KemK!dIl,61 the court refused In enforce a five·y~ar ewenant againsl a fOrrn<r employee. whe..., the emplnyee already had refrained from competing for two j'\'ars and four months immediately following hi. tennination. D. Rn triction m ... t not impon an undue hanbhip on employee Typically. when the court refusts to enforce a covenant on the basis that the employer tacks a prolectable int • ...,st. it also will find as additional support for its decision that Ih. covenant would place an undue burden or hardship em the employee.M I'or example. in Cha,,",, v. Copll Producls CO,,1& the court. after finding the employer lacked a protectabl. interest. added:

IT lh. "slriction in question places an "undue hard· Ship" On Chavers. Though he is a highly skilled ""J.king man. he is neverthele .. still only a ""Jrking man. and it is undisputed that the only Irade he knows and by which he can support hi~lf and his family is copi.. maintenance and r~pair. >O Similarly. in Sheffield v. Sloudemn;r~ ,11 the court stated. "This r~triction imposes all undue hardship on Stoudenmire. who is fifty years old. married, and J)OMtsses significant finan· cialobligations."72 Howewr. where the covenallt dots not appear to be the product of allY unequal bargaining power Or o\'e"eaching Oil the part of the emplOj'\'r, the court may use th~ fact that the emplnye. rtceiwd cOllsiderable consideration as additional support for its decision 10 enforce a cownant. For example. in Crntro! &mk of the &Juth~. lkoJ;'~!I,1l th~ court recognized that consideration can be an important factor in the undue burden aflillysis. The court stated: Comidering all the circumstances. ~ cam;ol hold that Beasley will suffer undue hardship if the covellant is ellforced according to iU terTll5. As a former direclor and officu of I'irst National. he bargailled for and recei''td owr a quarter of a million dollars for his stock, He is free to accept empl<l}'lTleot in a bank outside of Baldwin County. Or he can accept a IIOn·banking posi· tion within Baldwin County. On March 16. 19S5. he will be totally rree of the noncompelition coveflillll. 11'. do not see how any lesser burden could be placed on Beasley without completely de rogatillg both the COWflilllt'. pu1'Jl'C)Se and iU consideration}' While the Crn/rol Bank case addressed a situation invol"';ng the sale of goodwill, IIOt an agreemenl betw;,en all emplO)'e't alld employer. the court """Illly quoted the abo''e passage as support for iU decision to enforce covenants made by emplny' eos who received appro~imalely $1.8 million and S8OO,OOO for their agreemenU not to compete.7~ 1S4 / ~lay 1992

SALE OF GOODWILL OF BUSINESS OR PARTNERSHIP DISSOLUTION Subseclion (bl of the Alabama statute penni\> the seller of the goodwill of a businus to agree with the buyer to refrain from carrying on Or engagillg in a similar busille ... Subsec· tion (c) of the Alabama statule provides that parllle .. upon or in allticipation of a dissolution of a partnership rna)' agree that nOlle of them will carry OIl a similar business where the part' nership business has been tra","cted. Alabama courts comid· erillg covenants not to com pete extcuted ill such situations have not b<>en nearly so restrictive in comtruillg the agree· menu as they haw b<>en in construillg cownanU executed by emplo),«s. Although never articulated by an Alabama court. this probabl~ is due to the f.,lthat covenants executed in con· nect ion with the sale of goodwill are negotiated betw e~n sophisticaled ind ividuals capable of arms· length bargaining who usuall~ receive greater coruideration for their covenants lhan do emp loyees. In order for a covenant not 10 compete to be valid when ex.· cuted in connectiOIl with the sale of a busine ... it is r.ot neces· sary that the colltract of salt specifically state that the transac· tion includes tht sale of goodwill. It is sufficient if Ihe contract illdicates that the buyer is taking over a gOillg COIlCtTnJ" How· ever. the contl'llcl of sale must contain a provision prohib itillg competilion. because a covtflilllt 1101 to compete never will be implied when a business is being sold.n Just as conlracts restricting the practict of a prof..sion are ,...,id in the employmellt context, so too are such cOlltracts whellexecuted by a professiQflaI in connection with Ihe sale of a busille.. or the dissolution of a partnership. I'or example. in Friddle v. Ragmr.md.78 the Alabama Supreme Court affirrn<d a trial judge 's refusal to ellforct a coveNnt not 10 com""te con· tained in an agreement memoriali~ing Ihe di.. olution of a partnership between two velerinarian5. The Court held. "Because veterinariaru are professionals , they are not «eluded from the sellenl rule prohibiting covenants Ilot to com· pete."7'I Similarly. in Thompso" v. Wiik, Reimer & Swe~I.SII an accountant sold her accounting bUlinen and agreed not to compete for a period of time. during which she was to receive a lhare of the profiU from the purchaser. The contract specifi. cally provided thai the f'l)'ments were not for goodwill. The purchasers failed to milke the payments and the seller sought damages. Th. Court held void the c",,"oant Ilot to compete and the provision for payments for surh c",",nan\. citing ils previous deCisions holding contracts restricting the practice of a professioo void. III 5Ubsequelll decisions. the court has dis, tinguished its decision in Thompson and requiTl'd purchasers to continue to make payments to sellers evell though the sell· ers' CO\'tllanU not to COmpele ,,'ert found void.31 The court justified its rulillg in these subsequent dttilions on the ba.li5 that th ..e wa. sufficient consideration. other than th e covenant. provided h~ the sel ler to 5upporl the purchase price.8:l In First Alabama &mcshare&, />/C. ~. NcCahefIJ alld Cen· Iral Bank of the Sooth v. lkoJ;lel/.'" Ihe court made etear that the purchase of stock can equate to the sale of gOO<h..'ilI.SiI !n IX>th then decisions. the court consid...d transaction5 in which local banks ~re merged into larger ballk holding com·

THE ALABAMA LAWYER

pan ies. In each cas<'. the major stockholders of the local ban k wid th~i r stock to a larger bank holding company and in the process agreed not to compete with the holding company. but then violated thei r C<lVenants. The Alabama Supreme Court rejected the stockholders· contention that the sale of their stock was not a trarufer of goodwill. holding that stockholders of corporations are the equitable ownefl of the assets of the corporation and can thernsel""s transfer thou MSets. including goodwill. In tv.'O instan~s. the court refused to enjoin wives of ..lIefl of businesses from competing with the businesses their husbands sold. In Russell v. Mullis.'" an action was brought agairut a wife to enjo in her from operating a convenience store in competition with lli'O <:on'.. ni~nc. stores her husband previously sold to the plaintiff. Noting that the wife """·as not a party to either contract: and the evidence showed that the convenience store was ·owned and operated solely" by the wife. the court denied the plaintiffs request for injunctive relief <tgairut the wife. The court did recognize that had the facts ShO\l,l1 that the husband assi.t~ hi' wife in QPl'rating the star. or the wife assisted the husband in violating the ~nant. the wife properly could be enjoined." The outcome was the same in Udngsloo v. f)obbs.u where the court refused to enjOin a wife from competing with the purchilSer of her husband·s barbecue busin.s,;. ",.. n though she hold signed a noncompetition clause. The court re.uoned that even though tho wife had agreed not to compete. the agreement she signed was unenfor«able beca"", it did not meet one of the e ~ceptions found in subsections (b) Or (c) of the Alabama statute. The wife WilS not an employee of the purchaser nor did she 0\>11 any of th~ business her husband wId. The court made clear in Files v. &haibielS that it will not tolerate circumvention of valid covenants not to compete through the use of front peopl •. Files wid to Scholibl. the E:llis Red Bam R.. taur~nt in Demopolis. Alabama. In doing so. Files agreed not to compete for five ~ars within fi"" miles of the ~:\lis Red Bam Restaurant. Shortly after t~ sale. a restaurant called Ellis V began operating aCrOSS the street from the Ellis Red Barn Restaurant. Schiible brought suit. Whil. the evi · denee at trial ,hO\>... d that the lease purchol,e agreement for operation of the Ellis V was signed II}' a formor R~ Bam wait· res,; .nd tholt others ...... re involved in financing and running the operation. the court had no difficulty in affirming a jury verdict in the amount of $50.000 against Files where there WilS testimony that Fil es told i number of people that h. had man · aged to find a way to get around the noncompetition agree·

saT}' und.r the particular facts of the case. Put more simply. ' Where did the sold business operate prior to theloale'·'" PARTIAL RESTRAINTS AND FORFEITURE PROVISIONS In various cont~~ts. the court has construed cont ractual provisions as only partial restraints on trade not gowrned II}' the Alabama statute. While many of the .. decisions ..em to conflict with and even contradict other decisions of the court. they can be quite useful in enforcing an otherwise invalid ..straint. In three deci.ioru . the Alabama Supreme Court has held that agreements by employees not to w licit customers are on ly partial restraints of trade not subject to the Alabama statut • .~ For el<3mple. in fJoppe v. Prefer red Risk Mul. 1m. Co .. the court ,tated."A prohibition against wliciting ]eustOmffl] i, the not the SlITIll' iIS. prohibition against engaging in a la"ful profes,;ion. trade or bw iness."'!16 The court reasoned that where an employee is not prohibited from cotnpefl"ng. but merely from soliciting customtT$. the agre.ment only partially restrain, trade and is not even governed by the Alabama statute.91 In glaring contrilSt to these dielsions . the Court held void and unenforceable in CherTJ/. Bekaerl & Holland v. 8,-oo:n'll a provision relluiring an accountant withdrawing from a partnuship to pay a set f« to the partnership for any partnership clients he represented during the fiflt three ~ars after with· drawal. [ .... n though the fee may holve been SO , teep as to pre· vent the withdrawing partner from doing any work for the accounting firm·s clients for the three ~ar period. the provi· ,ion still hold only the effect of preventing w licitation with the partntT$hip·s clients. It ....as not a prohibition on ~ngaging in a lawful profession. Under the rationale employed by the court in Hoppe. it ,,'Ould seem tholt the provision would hol.... been viewed iIS a partial restraint not subject to the Alabama statute. Nonetheless. the court not only applied the Alabama ,tatut. to void the agreement. but charged the .ccounting firm with attempting to ·sub\'ert and circurrn... nt the laws and POlicie. of Alabama regarding ~,,"nts not to compete ."99 There are many types of oth<rprovi5ion5 or agreermnts tholt the court has vie-..~d and labeled part~l restraints. For eX3m· pie. in Tomlinson u. Humana. 11IO the court endorsed the "'" of an exclus;,.. seMet contrad bet ....«n a physician and a hospital. By the terms of the cont ract. the physician was r~Quired to supply all prima!), pathology servicrs needed at three Humana hospital,. The .greement was challenged by

'n,..

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Like post·employment restraints. the court will enjoin com· petition only for a reasonable time and within. reasonable geographic location. Simp ly because the restriction may be ambiguous. vague or O\.. rly broad does not render the entire covenant invalid. Rather. "]T]he court may strtke the unrea· sonable restriction from the agreement or the court can enforce the contract within its reasonable limits ...,1 Agreements not to compete with wId businesses hi,... been enforced in areilS as upansive as the entire United States and Canada for a period of fi,.. ~aT$9'1 to areilS iIS small iIS Baldwin County for two years.'l Again. like post · employm ent rutraints. the guiding light has been what protection is neees· THE: AIABA."IA lAWYER

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~oo\hrr ~thoIOlliJt. Thr Court, characterizing tilt agrttmtnt M "only j ~rtilt rnt""int: hrld thr agrHmtnt enforcubte, braust il illowtd the plaintiff pathologist to work i l othrr hoapibls lind did not ;UIect Ihr public intertSl. Thf Cou,t ruchfd the nmf conclusion in Gorneo II. ~ FIIOd Co.,lfl whrft Uv m;tridion was Ioaottd in a fQll(h~ agrttmtnt lind prcwottd th.t fflllChiKc only from optraling anothtr piwo ~rlor ...ithin fNt miles lor I period 01 18 months. If Ihr court Ilid not construed lhese pnMsions u ~rtill rnt""ints, tMy woutd ~ faited tht AlWma stat ... te, btca"'$e thty Wfre not bttwffn emplo)"''''' and emptoytts, nor did they ;nvol"... the Sile 011 business or tilt diuol ... tion 01 j partne,."hip. Perhaps the but statement of the law regarding partial rtstraints wu Kt forth b)' the co ... rt in A/oiJorml-Terl>N!S&u Nulurul Gus Co. u. Hun/st!ille,'c whore the court upheld i contract 8iving thr City of Huntsville the txdusive right to $ell 8M in Madison County. In tnforcin8 th.t agreement u only lpartill rutnint oIlradt, Ihr court stated:

It is lrue tlw. contn.ct5 in gflKm mlnint oItndt vi0-

Late tilt policy oIlhr IJw and In: tIltrriOft void, but as in Terre Haule Brewing CO. II. McGuver, "["fry contuc\ , h~,·tr, which it III rutrlins Or ftstriclltndt. il not void; il must injuriotuly ilffl!C:l thr p... blic wul: lhal iimil' jffl!(t a few Or sewral individ ... · ils tngagtd in iI Ii"" blUinlM does not rendtr it void. E"...ry contract of purchase and •• Ie to lomt u tenl injun:s other parli.s; that is.;t n«essarily prevents oth· ers from making the sale or sales consummated ill' such cont ract." obst~d

Contl1lKts in p.lrti.o.l r.. tr~'nt 01 tfJde ift itwiYS upheld. whon ~rly rutricltd M to Itrril(lT)', tlmt and ptr. sons, where thry jft supporttd b)' sufflC~nt considenlion.l«I

cases. tilt court his jPPI'OWd oIllindlonl's iIIrHmrnt with j tenant not 10 I&$e spiCe in I shopping cenler to any 01 thr ttnlnt's comptliton.l" and ill agrettmnt in which I rtt.1ilcr ogretd 10 buy III the betr ht nudtd from another fIlIrty)1S Anothrr form of rfil",inl often ~mployW ill' b... sinesses to partially rut",;n or distOlJr~ compttition is a lorf~iture pTO\'i. s;on. Thr Alabama Suprtmt Court has recognized that provisions whutby l/l tmployu agrees to forfeil certain benefits can be valid and tnfor(~""I~ ... lId.. AIabami IaW.11ll Accord'ng to tI>t: court, thae proyisions do not implicate tI>t: AlWma statute. III Courinll106lll. Birmirtg/lam Trusl NaliMol Bank.11T an empk1tu enterrd into ill agrument "ith a Ni1k tlW p~ thlt the empioyft wouldlorftit III of tilt bink', contributions to his iICCOUnt in I profil shiring plan in lhe cwot he look tmploymfnt with I com~tlng bink. Wh,n the employee miW>td .nd took tmploymrnt with a oomptlilOl', the bink rdu$td 10 fillY him its conl ributions to hi, account. The employft sued to I'KCMr the bank's matching contribution. Alter rtYit'o.ing dtc'sions from throughout the United St.1tn, and noting thit "forfe iture-b)'-competllion ciaUHI appur to II. widely used in the business communi ty" and "with few exctptions ... pheld," the court found the emplO)'tt forfeited his

Applying this ""tional, in ~r

benefits by taking employment with one of thr bank's compt!'IoB. I • In Soulhem Form &f"ftJU Uk Ins. C4,~. Mitchell.'" tht A1abimi Court 01 Civil AIJpols iPPf01II:d tI>t: d I /oo1"ritu,.., provision s'milar to the one in CouringlO6l. In /ltild,el/, in in$uQfICI agenfl nnp~nI contnct provided thit he would not he entitJrd 10 rmew.tJ oommissions illlter tennination d his employment if he b.gan reprtKnting Iny othrr insurjnce comPlllY in tI>t: st."Ite 01 AlWma. Alter thr ~nt ""as tmn'nated, and begon RiVIng M an ~nt lor ~r 'll$IlftB. Soutl>t:m Fann Buua ... tURd sending him renewal commimons. Thr iI!Ient s ...td. Thr coort held thai Iht contBct invol1ll:<.l a valid forfeitu,.. provision rather than an invalid damage clause and did not fall within the terms 01 the Alabama s\ltute, One type of partial rntraint the Alabima Supreme Court will not tnlorc~ iJ Ihr "no switch" agreemtnt. A "no switch" atrHtmnt is an arnng.mrnt btlWHn competitOfS wheft each atrtu not to hi,.. tI>t: other', emplo)'tu.ln both Defeo. Inc. v. D«alur CgliTllJer, 1nc.•II' lind DgJOO ~ /ltomlenQflCf!. IrIC. II. Young d! V"nn Supp/6 01.,111 the court rtfuud 10 tfIIo<n Uv$e ~lI. In both tUa, thr emplo)'tn UJlu.rd thit the prv.uions ..... re only p.lrti.o.l rulninll. btause they did nOI for«l.,.. the emp~u from gainful employment elsewhtft. 'The AIab.!.ma SUPTm1t Court disagreed. rusoning tlW in neithrr CUI' had tilt tmployus thrmsel'"ti agreed with their tmpl~r not to be ~mployed by the comr>ttilor. Btcaust the ag,..ements did not meet any of thr uceptions found in t~ Alabama statute. they ~re strock \!own.

REMEDIES FOR VIOLATION Thr normal rtmtdy for one $eeking to enforce a cownant not to compete il an injunction prohibltl~ tht cownantor from violating t~ agrttmtnt.11I In addition to obtaining an injunction prohibiting comptlition. j fIlIT1Y may k enlitled to darni.Qe:s for breach oI lht t(MIWlllil Finally. j new employer may he enjoined from employing the ~rly .agrtting no! to compete, or mil' he iWUStd 11.0".. for inttrftring with the aM1III1t.'1J LAW TO BE APPLIED Quite often, contracts containing COYfMnts not to comr>tlt. like other contncts. provi~e that tilt cont""ct shall be 80\1~mtd by the law of anotlltr statt. Thr court r«ently was confronted with such a sltualion In C""",,, &kuerl & l/oIland . ', Brown.' '' where an accoun\lnt si gned a p;tr\nership agrtemtnt providing th;!t North Ca rolina law would riCmm. Undtr North Carolina Law, thr contract w;u tnforcoble; ... ndtr Alabama Law, il wM not. Thr Ailibama Supreme Court, d«Laring thlt thr CCMnant II ~ "clearly nits dir«tly in thr fin 01 tilt public policy 01 Alaltanli: rdUKd to enloou tilt contrac· ttlll choice d law pnMsion Ind appllrd Alaltanli law to void the .agrttmtnt. '" CONCLUSION As mil' II. tvident from this ilrticle, it is often difficult to predict ... h.ft a tml or lllPtlllltt tOIlrt ~y dQW the filll' line b."'.... n «........abl. protection of In empl~r's Or purchaser'S business and an unftasonabl. rellnlnt on tnde. As thr court cautioned in Robinson u. Compuler Servicenl"s. Inc .. '" THE AlAIlAMA U\WYER

"I[pm ~t1kular eontrID mUlt be ttslro by dtttnnlning on 1M facts 01 the portkulllT CWf whttlltr tilt ~triclion upon one !'at1y Is grt~t" than is nasoo;obly ntctSMry for the pro. te d loo of the oth. r party ." Wh ile this ~rticle Is In no w~y U:haustM, It is hoptd thlot It providq some guidance in tilt drafting of ~slninti on tompet ition UId $Orne ~isl4ollCt to counsel who may be drawn in .tier litig..tion tomrllf1'lCn. •

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CORPORATE COUNSEL SECTION To ,"",8'"""'" lite _ . of corporate attomeys in Alaba",a, too Alabama St"" Bar larmed too Corporal. CW~ ~ Task F.".,. Tile <as!< tQtee .... charte.od to oote,,,,'" ~ tM<e is wflicien1 lnlotost "rTlI>Ilg "'"""'"" of the "'" to ouppott • Co'PO'l'1<I CWosel s..-aI 01 AIaDarna'S ....- . . CCIflOtal ••~ •• 'pressed • """ire to "". - . , ad<lres. the p a _ ...- 01 c:ctpO/al. """"..." The ",oposed .....-. """"" ..,,.. . . .""'"'" 01 the .,.1. bat """ 'ogutariy ",ovIcIo 1egaI...-..Ices to corporal. <IiotrtS. 0tlM< as in·lIoo.., corpo,.,. a."""," '" .. In ","aI' p < _ """ '&gIJlarly ..".... cli/tnl>, The .... " >n!otmal "","0Qati0n has u"""'otod • "'<pOI' ing numbe' of a"OIney. on the SI.1<I wI>ose p<&CbCe InS """ 011 ...... _ "",ono, The _ I,ts 01 part;:;pallOrl in 1M secttoo wookl be numerous. F;"" by ""_'9 WIll> Stmilally'""uaIOd alIOIneys, "",,,,t>o.. """kI 9>eM'9& k>1ormalion a_, i Dta,.,.~ , sample pojcin anti prac\>C8S. _ lOt managing In·nousela ... _ . 1M"",". """'9 and <Io'<oIopment, and olloe, 1Ojlics. S8cono:I. the . - wookl ..... to ~ eo<t1in<.o'9 I<Il)aI """,,,,<ion proora",. which Torus on the ""'" of ""floose """".tl ln Alabama. n ord, a ""a~ . tIy newsletter could _ . "",,en, ... _ 01 inl.. o" 10 in·llou ... counsel . 0Ihe< ~toons ""Il1l1 include •• riooJ. MIl<I< . ...ts _ o d by _ ' " of the _ , and an Alabama Corporal. eoun ... ,·. Oesk RtI.",noo. "n">Ot>g OII>or po"';b!II """"'" acnvitl • • is a """'. PIM' bulletin bOard IlCCOSsib!o by.".,. "",mbots of IIIe ha"'9 the appIopoal. 1<I<:I1nC>IovI.

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Membots """lei conltibut. 10 IIoe _ ' S ~ts by 1'0""""""'9 in commm .. aCId,... sI'9 a'_ "'·l>oIJse atlO<rNly """""""" and development prog'ams. the _Iopmen, and m.,OIonar>ee of "'_legal ""a...; ;".Ilou.. practice Ond~; poiiC>Oo, pr...,..".. and

soc:h ..:

proc_,

"Uti<:.; 10" doe?a~""'nI " " , _ 0 1 : &001"", pubiallooo; and

seclion prog,ams, The li'Ok 1<>"", is now trying 10 ;dentily .. "",mbet. of the " ... b/I, wI>o wool<! bit "".. 0"00 on IIoe """"ion oj such •• """"". H)'OIJ a'" Inte,... I· 00, pia""" oompelo and '~um the . _ 'esponse "'''". TNs does not con",... you '" bocom&. membot oj the . - I~ formod). no' does ~ com"" you to pem,m, ony work tow.,d ",.ating the ......,." RalM<. ~ . imply heIpo the lask 1<>"", dol .. m, ... the _ of ~resl ., fomlng """" a """,""" In a<Idoltoo 10 ,''', ""'..age .. TII8 AJabamB L""l"'r. • mail campaign 10 beong CO<\Ou01od 10 a ~ """,ys vmo may not 1>11 <Io,iICIf)' onvoIw>a .. SIllte bar llC!ivl1>IIs, "'" """ ""'Y wOll1 to partt<>pale on • c:ctpO/al. oounsel ptOgram.

0;,,,,,,

Jud Hennington. T.sk Force Chalfl>ef1Gr"t I WOIJId be "11..",100 ;n join'ng Iho propr)$$(! Co<poral. Coun sel SectIon of lite Alat>ama State Bar.

Ma jing addres •• City. Sial • • ZIPI Please ,etum by June 1. 1992. 10 K"ntt B. Notman,

ISS / Maylim

o;'ec1OI 01 P'og<ams. Alabama Slate Bar. P.O. Bo, 671 . Moolgome'Y, AL 36101, THE AU.IlAMA U.\VYER

ABOUT MEMBERS, AMONG FIRMS ABOUT MEMBERS T... odo ... L Hall anOOUn«5 that lit hu moved his 1<1'" office to 52l Two Office Park. Mobile 36609. Phone (205)

343·8363. x. Stephen Jacnon "mounces the reloc.lllon of his office to 2420 Arling. ton Avenue, Birmingham 35205. 1'Il00. (205) 933-2900. AnthollJ' R. Llvlnl!aton lU'."o.mces

lilt

o~n;ng

of his offi(f il On. Hill

Strnt It Daleville Aw:nu •• Daleville 36322. The mailine ~ms is P.O. IIo:l 445. Iblevill. 36322. Phone (20S) 59·

'539. Ro~erl E. iMoon~ InnOunc"

the

•• 1000100 01 his otfl« to 950 F'in.l.nci.ll C.nltr, 50S Twentidh Strut North. Birmingham 35203·2678. Phone 12()S)

328·9000, Rod,e' K. llnnnum, forme rly of

Price 1.1 Brannum, announces the relocation of his office 10 166 South Main Stmt. Suitt 2ll3· B. rnt.rpr;~ 36330. Phone (205) 393-1666. Marona P_y Innouncts her selection as tM Chid o.:puly Citric for 1M Unitfd Slates 8.vok"'piq Court. North· un Dill,iel of ALabllm.l. He. mailing ~ddrUIi il 1800 Fiflh Aw:nu~ North, Room 108, Binninahlom 35203. Phont (2051731·3742. R!~h.r4 It . It~lIh announe~f Ihf rtloc~lion 0( hi, omee 10 547 Snulh I.,)wrtnet Siretl, Montgomery 36104. !'tlQne (205) 264·6776. OUo A. Tho ... p.on, J •• . formerly CounJtI. U.S. Naval SUpp ly Depot. Yo!cO$.Ukl. b~, Iw been rassigned 10 Ihe pOlition of Coun,.I, U.S. Nanl RegioOlal Conlncting Cent • •. Singl' !'Oft. HId continuu to act u the P..,ifie Aru Courw:I for the N~... I Supply Systems Command. n.~ poIition ~ i civil. iin POlitiOn Wilhin the Offief of the c.m.,,,,1 Courw:I oJ lhe NOW)'. Tho mail· ing addrw il NRCC Sinppom. F1'O AP

96534·2 100. !'hone (65) 221·6266. U na Noble. anOOUncfJ I change: 01 10 I'SC 557. Box 1806. FI'Q AP 96379·1806 , pUTluanl 10 relocalion 10 Okinawa, Japan. add~"

Tm: AI.AHAMA lAWYER

Mnlon P. W.lku lnoounees the opening oJ her finn it Suite 100. 215! Highlind Awnue Birmingham 35205. Phone (205)930-6900. u.ny D. S ... lth announcfJ thai h. ~ctnlly bt<"lImt I founding shareholder in C.... nlll, Bu.k<! '" W.,n.r with omen in Orlando and Tall~. , Flori. <la. Mleh.e! J . WI"".., another mem· ber oJ tilt Alabiima Slate Har. is associat· ed with th. firm. The iddress nf the Orlindn offICe ii Olympii Place, Sui te 1800,800 North Map:llia A'''''' ..... P.O. 8(w: 2513, OrIinOO. fIoricIi 32802-2511 Phont (407) 246·1800.

AMONG FIRMS B.rktr '" J a n«.., announces Iht rel ocat ion of Ihe firm', Birmingham o/foee to Suitt 3]20. AmSouth.Ha,be't Plua, 190] Sixth Avenue Nnrth. Binn· ingham 35203, and that J u d lo n W. Wtll l has bfcome .. member nf Iht finn, lind thai Tho ..... CoI.man, Jr.. Suaan Lee Cunnel.. fo""" r .Wi a\to,· nry lor Kniol" Auocillie Justice Hugh A. Middo1, and O.nld R, KLuln, have btcomt usociattd with tilt firm. RI~h a r' F. Pat, '" Alloela t u ~rmounas lhat AUfO A. Rltehl. and Soan S. Powe ... haw btcomt associ· ~ttd with tilt firm. Tho .... t, Baddl.,.. Jr. and Wen d,. Brookt CYe" announce Ihe merger o>f Iheir practien and the forma· tion of Baddle), a C1'tOf. P.C., Suit. SS!), Park Place Too.«r. ZOOI Park Place North , Sinningham 35Z03. Phone (205) 252-0919. L.nl.r. Por' , Slau... '" Payne ~noouncti thai EIi ..... th Wlllia ... AlNI ;wI Y. Moon, III how btcOll'lt IfIfmt>t" 01 tilt finn ind that J.ffn)' T. K.lb ~ btcomt iJSOCilIttd wilh the firm. Ro .... , ... , 0,, " 11), '" Wllkl", OI.IlOOUl1Ct' the finn'l relocation to 726 SIOIIt Avenue. Suitt A, filladtgi 35160. Phone (205) 362·165(}. Miller, H. .. lllon, Snider '" Odo.. announces lhat Carroll E, BI .... , J . ..

"'lot"

Malth ... C. -'kDona]' and Ma.... J . T.nh ..... r. l. have btcomt ..... mbt" oJ lhe firm ~nd JOM," C. c m , Jr. Iw become of <oul1sel to the firm lond J. m .. R,"'rehak Iw hKome associ· ated with the finn, Beal ]t)', Wil l on , AII.n, Me nde ]· IOhn , J e ml.on '" J . m .. announces that 0",1. W. Vltk<! ... , fo,m~r assi,. lant altorr.tl' gmtral. State of Alabama. lnd L. L.n. " Suton . fnnnfr f\.afl Iitornty to A1'~ml Supreme Court Justice H. ~rk Kennedy have btcomt UKlCilIled ",ith 11\1, firm. Vel, •• '" COlI ~noouneu thit J . R., W''''fO , chairperson, Ala~ml Ethics Commiilion lind fo"""r eb.ims superintendent. S tate Fum Mutual Automobile Insurlnee Comp;>ny. h~f btcornt w«ilIltd wilh lilt firm. J o hn lon '" Co,"), announces Ih.1 Dnld MdllOn Tid_on has beeome an aHociate of Ih~ fi rm , Th. mailing addTeiS ii 300 TWfnty Fiut Siree l North, Binningham 35203. Phone (205) 32&·1414. Han., ""'..... U, BeQoI., Cnna '" Joh ... loo MVIOUnca that H....., T. MorrioMU" Alleo S. R_ . and J. SI.,h.., H.~l' haw btcomt asood· ated with tilt firm. Ar.b . .. hl, J ackto n , OtMou)', C",,", Hoi. . . '" Renu announcn thai Sle,he n R. Co ... I...., Wlllia.. AUllln Mu]hnl .. , III ind T. u E. Tho",.o" have become anociated wilh the fi . m, The mailing add .... is 1300 AmSouth Center. P.O. Bo. 290, MC>bile3600l. RU l hlon, S I.ke l)', Job".lon '" C ...ntl announces lhat He lt n Cra"" W.1I1 hl$ become a member of the firm. The ..... iling address is P.O. 8M 270, Monlgomery 36101-l)270. B.ra,U , NOlale, H. .. t I '" O·N..I lnnouncu th'l O.nlel S, • • ko hu btcorne I mtrriltr oJ tl\l, firm and thai Cecil C. Duffee, m has btccrnt iJ5Dci. lied with lilt r.rm. Th. finn 0WIt has ehan.Qtd 10 Bamett, Nollie, Hana '" S,...kI. Th. address remains at 1600 City ~·ede r. 1 Building, S irmingham

"''' May 19921 189

NOTICE GRADUATE TAX PROGRAM TO BE CANCELLED The UniverSity 01 Alabama

annouOClld recently IMI its Gradu· ale Ta x Proo'am wil l not start anOlhe r cycle Ihis lall. The law school had oondlJClf!(! its Graduate

Ta. program since 1977, olfering lhe lL M. (taxation) dell ..... Tho program operates en a two-y ear cyc", mooring in !he evenings arw:i on weekends. The prog ram has be"n cHu,ed In Birmingham, Mobile, MonlgOln&/)l arid Huntsville. B&<:ause of lundingl imiratlons at Lhe University. too ~,am will not staft another two _year cycle in

/l.ugusll992. The decision does not indicate an end ot lhe Graduate Ta. Program .

The law school hepos 10 '''sume offe, ing the program in the nUr Mure.

• COIlIl"....:1>I .Ii _

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• .'!<dlal .!i ~ ... o F.. !H"I- PC'.

• 0... Tl"",

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6< N""",k, Entry

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Check \\" lIlfII!

• Pro.<., .'JIonlol*. " E,I"'_

Frw Demoost,ation I'l'og.. m Availabl.

f or Information Call (800) 827.M57

, ~ JS TochJJ<>lo9~ Inc. • , " • 5001 West Bu;ad 51. .... Richmond, VA 23230 190 / Mayl992

Yearout, Myul &: Traylor announce. th~t Bryao Scott Tyra has become an associate of the finn. Offices are located at 2100 SouthTrust Tower. Birmingham 35203 Sarah F. Browne ao d Jo AUson TlOJ'lor have relocated their rospectiv. law offices to Suite 725. Brown Marx T"".. r. 2000 First A'oenue North. Birm· ingham 35203. McElvy &: Ford announces that Philip N. UHnby and Mary S. Bu.... haw become aswciated with the firm. Omees are located at 621 Creensboro Awnue. Tusca loosa 35401. Phone (205) 349·2000 and at 122 Court Squan' £ast. Centreville35042. ~ (205) 926-9767. Drinkard. Ulmu. Hlcb &: Leon announces that Win" Faulk has become associated with the form. He also operate, a branch office in Ba ldwin County. at P.O. Box 940. Spanish fort 36527. Phone (205) 626·8051. Hili, Hili. Carler. Franco. Cole" Black announets that Rohrt C. Blaclt, Jr. and William C. McCowin have become usociated with the firm. Omees are located at 73 Washington Avenue. P.O. Box 116. Montgomery 36101·0116. Phon. (205) 834·7600. Wllilami. Harmon &: Hard egru announen that T. Eric Ponder has become associateli with the firm. Offices are located at 1130 Quintard Tower. Suite 403. Anniston 36202. Nolen &: Nolen announces that J. Me~1l Nolen, Jr. has become a member of tilt- firm. Offices an' located at 309 first Awnue. Northeast. fa~tle 35555. Phone (205) 932-3281. Bradl ey. Aranl, Ron " White announces that G. £d .. ard Can ..!y. III. David C. H),mer , Michael O. McKibben and Michael R. Ptnnln,. Ion. all of the Birmingham office . and Senti E. Ludwig of the Huntsville offie< h.."" become partners in the firm. Trlmmler, Atcht.on " Ha)' lu announces that Stephen P. Morlon, Jr. has become assoc i.t.d the fi rm. Floyd. Kunn. Cn . lmano " Roberti announces that GaT}' J. Bone and Philip E. Mile. have become assodated with the firm. Officts are located at 816 Cllt-stnut Stn'et. Gadwen 35901. Phone (205) 547·6328. Wailer, Henle), . &: Lawyer announces that John Elgin McCulley has become a..ociated with the firm.

The mailing address is 2101 Br idge Aloenue. NorthpOrt 35401. Phon. (205) 339-5151. Altman, Krltur &: Luick announces that Elizabeth Holl an d Hnlthlnl has become a partner in the finn. with offices located at 6400 Powers Ferry Ro:ad. Northwest. Powers Ferry Landing . Su ite 224. Atlanta. Ceorgia 30339. PIlone (404) 955·3555. Wllkldl. Bl nkuler, Bliu " W)'One announces that Htlen D. Walton hasjoint<i the firm and will practice in th. fairhope office. 221 Fairhope Awnue, 1'.0. Box 1367••·airhope 36533. Phone (205) 928·1915. Saner &: Littleton announcts that Gre'ory D. Cro.. l1n has bec(}me a member of the firm. located in the ColOnial finance Center, One Commerce St reet. Suite 201. Montgomery 36104. Phone (205) 843·7800. Corley. Honcu t &: Ward announc •• that Kathryn H . SUlllrall has become a partne r of the firm. located at 2100 Southbridge Parkway. Suite 650. Birmingham 35209. Phone (205) 879·5959. Emond &: Vlneo announces that KIn. Dannport has joined the firm as an usociate. The mailing addr ... is 1900 Daniel Building. P.O. Box 10008. Birmingham 35202·0008. Phone (205) 324-4000. Nljjar O"na bur, ann(}unces that Leonard Wertheimer. III has j(}ined the firm as a member. and that Rich ...d W. Thelberl has joined the firm as an associate. The mailing address ;s 2125 Mor ris Avenue. Birmingham 35203. Phone (205)250·8400. O'Bannon " D'Bannon announces that Chrlltopher E. Connolly. for· merly associated with the firm. has become a member of the fi rm. Offices a.. I(}cated at 402 S(}uth Pine Street, Florence 35630. and the mailing add ress is P.O. B(}x 1428, fl(}re"ee 35631. Phone (205) 767-6731. Adami" Ru n announces the opening of a new office in Washington. O.C.. the fourth for the firm. McRight. Jackfon , Dorm a n, Myrick &: Moo,,", announces that Patricia J. Ponder and Duld R. Peeler have be<:ome partntrs in the fi rm. The office is located .t 1100 First Alabama Bank Building, !O6 SI. Francis Street. Mobile 36602. Phone (ztl5) 432-3444 . • THE 1lliI.8AMA u\WYER

DISCIPLINARY REPORT OIab11rment

o8irmingtuom

divorc. and 'ttorn~ 8a~an

Wli

paid a fee of $458.

FOJ: Althoulh III ntcUoSolry dorornmts ....tr.

Jon" Iw been dW»1ffiI from 1M I"Xtiet of ~ pIIl1l,Wll \0 Rule (8)010. Rul~ of Disciplinary Procedure (interim) efftcli~ February 11. 1m.IASB No. 90·8261

signed. Le...·is newT filed the petilion nor did he refund .my portion of tilt fee. ASB 90·39(1 . In Februal)l 1987. Uwl. ....as rotaintd to file I bankruptcy and wu pIIid a fH of $510. Lewis never filed !he Su.pe n.lon. petition nor did he refund any portion of oTuscalOXlu lawyer Richnd Ow en the fee. I'ant. Jr. was swpended from the pracASII 90·588 . In Februal)l 1990. Ltwi. tice of law for 89 d.l.ys by order of the was retained to almin 01 divorce and paid Alabama Supreme Cour t , tffeclive a ffe of 5457. Lewi. never filed Ihe Marth 2(). 1992. The Disciplinary Comminion accepted hnt's conditional divorce ",til ion nor did h. rffund an), portion of lhe fee. guilty plu in the following miners: ASB 90·634 . lAwi. entned into a AS8 88·23 • !'anI prtp;aml and backbartu II"1"lI'I#mtnI with a diml ...t.t..,in daltd a dftd 10 rtll'lCM .w KnS 01 land Lewis wu ptrmlued to leaK tilt dimfs from I blInkruptcy estill. ~t stalts thai hOUR in uchana:. for leQill services. he ""-I known th.t family for, rrumbtr 01 Lewis Ililtd to proWSe tilt agreed-to 1*,,1 ~rs. knew \hty alwa)'i intended \0 ,iw services. The clim! wu forctdlo filt ~n this land to their children. and backdated unlawful detainer action to rtc",""r posthe dttd to httptMm. session of the premisu. AS8 89·806 - Fant contacted a juror ASH 90-719 - In Dctobtr 19M. Lewis after Ihe jury WiIS dismiswd (hung ju!),) .... as appointed to represent a criminal lind uked her flow she voted. When Ihe d.efendan t It trial i1nd on ~ppu\. Th. told him how she \/(lIed, he b«;,,,,,, rude criminal defendant was Hntented to life and profant. .... ithout p,arole Ind. thereafter. tried on ASB 89-119 - I'lint was ~lid a lu of numerous occasionf, unsuccessfully. to 11,500 by the elderly rnothtr 01, criminal conUd Lewi5. l.ewif willfulI)' ..,fused to Ikfendlnt to ptliliOfl for ~ ~h...ring or correspond .... ilh hif clienl. refused to ~ppul to tilt Allbanv Supreme CO...I. p.ovide him with the requeued I.ial ~t d;d ntithtr. IASB NOlo 88·23. 89-806 tnnKript or appellint brid, i1Ad did not ~89· 1l6J -Cull!!W1 IIwytr Eddie L« Lewis wu inform his dimt lhat his conviction ....... susptnded from the practice of law by affirmed. ASH 90·990 . Lewif wu retained. to order oltllt Supreme Court of~. represent a tlitnt in two criminal mat· dlecti,.., Nowmbtr 15. 1991. for a Il'rioo ters and a divoree and was pIIid fet. of of three ~ars. Oisciplinu), cha. ges pendS5.000 and S475. res.ptclively. Lewis proing against Lewis were deemed .dm iUtd vided no legal HrviceJ to his client nor by the l)isciplinary Boord of the Alabama did h. refund any portion of the fee. State flu by virtue of Ltwis' failure to fiI. lASH NOlI. 90 ·32. 90·279, 9O·3go. 90· an ans""u or (l\htr rnponsi,.., pleading.. 588. 91Hi34. 90· 719. Ind 9O-990J The chaf#' ilW(l/w: tht IoIlawing: - Wetumpka auorney Bllh Alan ASfl 96-32 - In August 1989. Leo.is wu C"ell has bten t.mporarily fuspended rtIained to ~Ir a bankruptcy ;and """ paid from the p."tic. of Law b)' the DiSoti. a ~ dS600. On JanWoI)IIO. 1990. Lewis _ infonned by the dimt that he ...-anted pHnary Commission of 1M Alabama State Bu. punuanlto lIulr 2(1, Rulu of Disci· Lewis to withdrlilw sin« he had not filtd plin"y Procedure {lnluiml. effectin the blonk.uptcy. On January 17. 1990. 31. 1m. Lewis. ntWTIhelw. Inslitutech bankrupt· March (liule 2Olll) - Pet. 92-01) cy pr'OCftdina: on bdlilf of his di.nt but wued a worthlw ched< to the Bankrupt. Surrende r of L1cen.e cy Court In ~nt of !he filing f"". - Alhenf aUorney Thom" S. ASB 90·279· In December 1989. Lewis Woodruff. Jr. h.u. in re.ponse to CM'"l!U .... as retained to obtain an uncontested m.d agairut him by the office of Central Till': At.AJlAMA LAWYEII

Counsel d the Alabama State liar. volun· taril)' IUrrendeml his lictnlt to practice La.... in all COUrts of the State of Alabama. tfftctMMarch I . 1m.

Public Re prllNl"d • - On ~·ebruary 28, 1992. Montgomery attomey lIichard C. Rroolq was publicly repritnanded by the Alabama State liar. Brooks had represented a criminal defrn· danl in 1M Montgomel)l County Ci rcuit Court on Kvenl ptnding felony charges. SubKquent to tilt client's enlering a plea of a:uilty, Broob wrote to Ihe dient advW", the clienl thol tht district attor_ neYs offoce was I/Oing to make ~ realmmmdation thlttllt climt feCeM a maximum of 15 ~II"$, and fu rtlltr. that the trial court Judt!i= had lIIIreed to be bound by this ncommendation.Il0'0veVH.lIt lilt sentencing hnring, Brooks made no motion on behalf of his client. and the j~d$, who obviously was n(l\ a p,arty to any pl.I agreement. untenced the client to 50 )'far,. Thereafter. the elient filed a habeas corpus action. During those habeas cor· pUl proxefdinp, it was disclosed that misUjlruentatioru made by Brooks con· stituted ineffKtM wist.ance of counsel. The client ...." lhen reHntenced by the trial court. upon ~Uon of !he Utorney ,eneril 's office. to ~ IS'fU' lerm. 8rooks' ine(ftctl~ usistance 0( counsel "'~ found to hove <:Of\$tituted a violation of 011 7· 101 (Al( I). (failina: to Hek the lawful objectMS of a clientJ. DR 1·I02(A1(5). lengaging in conduct p~j u didal to the administration of justiceJ. and 011 l-l02(A)(6). Ifngaging in conducl whkh aih-erHly .tntcts on hi. fLt· nw to praclice lawl.IAS8 No. 90-3091 - In ASH Nos. 89-268 and go-SOHA). MlthHl Leo Allfup d Cad$den WM publicI)' reprimanded tOr pncticina: ...... in a jurisdiction whm 10 do 50 constiluted a ,ioIation of the rea;ulMions of 1M profu.. sion in that jurisdiction, cont ... ry to os.ciplinal)l Rult 3· 103(8). Alls.up!& license to pracl ice IJW hOld been suspended Septembe r 15. 1987 lor his fililu re to compl)' with the Abbama Statt liar lIul« 01 Mandatory Continuing Legal Educ~· tion. While slill under th~t $~s~nsion. Allsup negoliated emp loymen t as an Maylm / 19 t

attorney with Leon Carmon, attorney·at· law. of Cadsden. Thereafter. for a period of some ten WffiQ:. Albup engaged in the practice of law whil e in the employ of Garmon. Specificall~. in 9O-&OI(A). Allsup negoti· ated a guilty plea on behalf of a criminal defendantlchent of Garmon·s. Al lsup appeared in the Etowah Circuit Court with and on behalf of the dient when the client entered guilty pleas to pending criminal charges. Allsup also appeared with another of Carmon's clients at a preliminary hearing, and sat at coun.el table with the client even though not accompanied by Carmon . At the Februal')' 28. 1992 meeting of the board of commi!05ioners 01 the Alaba· ma State Bar. All sup m:eived a separate public reprilThlnd in each of the abo .... · referenced ASB matters. [ASB Nos. 89· 26S&90·601(A)[ · Birmingham la"~r Jamu B. Morton. II was publicly Yl'primanded by the Alabl.· ma State Bar on Februal')' 28. 1992. Said reprimand was administered to Morton for his willfully negltcting a legal matter entrusted to him. a violation of Rule 1.3, Alabama Rules of ProfeMional Conduct. Morton was contacted by a client request ing that he pursue delinquent child support payments owed to the client by the client', former huoband. Morton agreed to proceed on behalf of the client upon partial payment of his fee. However, even though Morton received said parl ial payment. he failed to proceed in a timely fashion on behalf of the client. The client. being unable to contact Morton and discuss the matter with him, filed a complaint against Mor. ton with the bar. Morton failed to file any written respOn.e to the complaint even though requested to do so on at leut three separate occasions by an invutigator for the Birmingham Bar Association Crievance Committ... [ASB No.914671 ·Robert M. Alton. tit of Montgomery WM publicly reprima~Md by the Alabama State Bar on F~bruary 28, 1992 for col. lecting from a client a clearly exct~ i Vf fee. in violation of Rule 1.6, Alabama Rules of Professional Conduct. Alton had entered into a written employment contract with the client whereby he was to Yl'ceiw an hourl~ rate of $150 per hour. Thereafter. the client insisted that the opposing party be 192 1 May 1992

responsible for Alton', fee. Alton then was continued again until August 18. negotiated a $7.500 attorney's f.e with 1988. Finally. the case was dismi .... d for the opposing party. However. this f•• want of prosecution. Notice of that dis· WM contral')' to the 5150 per hour con· mimI was lent to Waldrop on August 24. tractual agr.ement Alton had with the HI&!. By then. the statute of limitations client. and corutituted a unilateral modi· had run. During this entire period. the fication of the employment agreement dient made numerous calls to Waldrop by Alton. The matter "'as subsequently to find out about the status of her case. settled fo r approximate ly $15,000. of Waldrop intentionally concealed the fact which Atton roceived approximately that the case had been dismissed by fail· $6.200. The end result was that the ing to communicate with her. She only dient received only approximately learned of the dismissal after the filing of $3,000 of the S15,000 uttlement pro· her grit\'ance with the Birmingham Bar ceeds due to Alton's attorneis f.e and Association. [ASS No. 91-175(B)[ • Tuscaloos.a lawyer Oavid A. Reid was certain medical bills which had to be sat· idied from the settlement proceeds, publicly reprimanded .t the Februal')' 28 Upon in .... stigation of the complaint filM meeting of the board of bar commiMionby the client against Alton, Alton was e... Reid was reprimanded for tendering unable to document any reasonable basis a non-sufficient funds trust account for his a\lor~e{s fee, which fee was check to the Sumler County Circuit found to M cluriy nc.ss i..... IASB No. Court in the amount of 5531.01. These funds had previously been deli,'ered to 91·5731 • Huntsville attorney Hilal')' Coleman Reid by a client and deposited in his trust Burton was given a public reprimand on account. In addition to the chffk to the February 28, 1992 for willfully neglecting Sumler County Circuit Court. Reid a legal matt .. entrusted to him. On i!05ued an additional non-sufficient funds September 7. 199(l Burton was hired to tru.t account check for the purchase of represent a client in a garnishment land for a client. Here. also. the money which had been filed by his ex·wife to for the land purchase had been given to reCQVI'r child support arrearage. Burton Reid and deposited in his trust account. Additionally, Reid was requested to took a $250 fee and told his client he would file documents within a week to respond to the bar on thl'« separate occa· have the garnishment terminated .ions and failed to do so. This neceMitated because the child in Question ..... d actual - the taking of Reid's deposition and subly been Yl'siding with his client. poenaing his trust account records. The Disciplinary Commission found AfttT the initial conference. Burton took absolutely no action on this maUer. that Reid failed to safegll/lrd clienl fund5 The client called him numerous times to in violation of Rule 1.5 of the Rul.s of inquiYl' about the status. and each time ProfeSSional Conduct. The CommiMion "'as told that matters had been taken caYI' also found that Reid's lack of cooperation of and that he "'auld have a court date with the investigat ion by the Office of won. In Janual')' 1991. the client \Wnt to Ceneral Counul violated Rule 8.I(b) of the courthouse and lea"",d that nothing the Rules of f'r(IfeMional Conduct. Final· had been done On his behalf. At that ly. the Commission found that Reid's point. $2.283.96 had been garnished conduct involved dishonesty and misrep' from his wages. [ASB No. 9146[ Yl'senta!ion, that it was prejudicia l to the • Birmingham attorney Willi a m administration of justice and that it Ronald Waldrop Wa5 pUblicly reprimand· adv..5tly reflected on hi> ability to prac· ed february 28. 1992 for neglecting. ti~e law. in ,;olation of Rule.! 8.4(c). (d) legal matter and failing to communicate and (g) . [ASS No. 91-111 with his client. On October 20. 1983 Waldrop was Tra nsfe. to Disa b1l1ty Inactive retained to handle a per.onal injury Status oBirmingham la~r \\1mam Edward action. The client had fallen On the premises of a superlThlrket in Birming- R a m le~ was transferred to disability ham. Suit was filed by WaldTO\l on March inactive status pursuant to Rule 27. 23. 1984. Trial was initially set for July Rules of Disciplinal')' Procedure (Inter30. 1986. but continued until April 14, im) . The supYI'me court made this effec· 1981 due to Waldrop's illness. The case tive Februal')' 1. 1992. • TilE ALABA."IA LAIVYER

HONOR ROLL •

Between February I and AprilS, 1992 the follou'ing aUomeys made pledges to the Alabama State Bar Building Fund. Their names will be inc/uded 011 a u:a[/ in lhe portion oIthe building listing all ron/riou/ors. Their pledges are Qclrnou:ledged u;;/h grateful appreciation,

(Fora list oflhose making pledges prior 10 February/, please see previous issues of The Alabama Lawyer.)

Malph Wyatt Adams Barry R. Btnn.tt

Je>hn Colli.. Cullahorn Ron;.ld T.

Ibl fac~

SOian Salonimtr W~gn tr

Joseph Daniell Whitehud

DmdR.Boyd

Bttsy Martin Harri$on

Martin Gordon \\'ooslry

MichKllloyd Rl')'aI1

Marlhll Dur1lnl HeruteSSy

BiIIyC. Burnt)'

Ralph N. Hobbs

Williil/1l C. ~m. III

David Lu JOnfl

Bthtwtr F..." I _April & J992I~ hI/otDing finrfs """" pWga ff/llwa.ildmg lund. 'nwiT _ll'iU. 1M ir>rWdId.., ~ INII in ""ildirlg tWing QI/ conlribu/(lfS. 11>tir "J<dgt4 ,"" Irl....()IJ}/1!dged ",ilk gn:/Hu/ appr;ckslion. (~ .... prru. ousw~ oI TM .41........ lAwpr lor IWi'I/P of/how "",king "",/ribuliooJ ","" 10 F~ I.)

I'" _

...

William John Cal\UY. Jr.

l.ouis Buisch tusk

Jamt$ Edwin Col.

Robtrt t\;lmilton " ' - I I

MichHl Sle'Phm Dampier

JIITlH BlILlrd MeN.ill, Jr.

Alpha Si81N Chlapttr, Siama Drib. KaPPII. Jones School 01 Law

BinnlnaNm LfgIoI S«rmrits AuocW.io.x1

Nancy Jonn om,

Noro!l Scott Rotbuck

Rlchord Edward Fikes

Danny Lane Smith

CunnlnaNm.lIounds. Vance.

THE A~IIAMA I ..... W'(ER

Croweltr & Hr(l«,Tl

May 1992 / 193

NEW RIGHTS FOR THE

DISABLED

What I. tM Amerlcen. with DI.-bIliU•• Act?

ProsiMnt BIUh sign«! The Amtricms with [)iWlilit~ Act (the "/IDA' 0' tM "Act") into ~ on July U. 1990. 1 The

AOA is :an anlidlKrimillltion

which

protects indiVid ... ,1I with disoobililin

from diK riminltion in tmployment . xcess to public buildines. t~· lion. 100 communiations. This comprthmsiYt new ~... ;1 vitwfd ~ moil '" bting thr si&niflQn\ civil rii/lls legislation moct~ by Coni""" in lilt

""*

~25yUrs.

Although the movement towud com,>r,hr,,*,'t prot«tions for indMd-

uals with dinbililitJ IItgln short ly .. ftu the 'elurn of "mulelln troops from the bilUiditld, of World War 11.

The Rules and By JOffN

~v.

HARGROVE

protKtions for the di~ltd prior to the of the ADA wert haphulird at best The Rehabilitation Act of 1973 provided wm. protection for diubltd individuals who sought employment with l.d .... 1.gtndu. gOV!.nrmnt contractors, and other rtdpients of f«ltflll funds. 2 Addilionally. some Io<;~l builu· ing coon included uniform sl~ndards for comlruetion which ~quired I-J)«il· ie ~ccommod.1olions lor ctr\.llin dis.tbled individuals such U Iholt in whftklai ... 3 Today. howowr, Ih"e ~re somt 43 million American. _ ineludina: ~6.000 AI~bami~nl _ wjlh physic~1 and menu.1 dis.tbililiel. T'heM individ. uab now are p.olteud by Iht ADA ..·hkh n .. nlwolly will ~pply to III prj . vue employers with 15 or more employeu. irrupective of whether ~n;w fflkraJ funds. ~gt

and Alab~m~ I~WYfrl no b«omr ,nu.ng~ in compl" MW rtl· ul'tory i.. ut. In.d, ullimately, litip. lion. This irticle i. inlended 10 addre .. the principal com~li;ance ind enforcement i.. ue5 which wiliariK un<kr lhe

'D. The ADA i. divided inlo

r.~ titln. Tille I prohibil$ di$Crimin.llion in pri · vue em ploymen t . and for mOil employers. eomu into effecl on July 26, 1992. The Hcond and fourth tilln apply 10 public employers ~nd teleeom .

194 Mal' 1992

munications .nptetivtly, and the fifth tit~ con~ins miK~niUltOUS pl'OYisjons ,wlic,ble throughout thf ADA. Title III of the ADA ~ontains provi.ions regudinQ discrimination in public Kcommodition. Ind beelme ~ff«lM in ~rt on bnUlry 26. 19n. Titlu I ,nd III. which Ipply to most pri"ate Allbama busineutl l intluding law fiml5 ~. u e thf ",bjtClI of this article. The ruin and rtmedies under Title! wilt be discussed forst below and then will be followed by a similar discussion of Title III.

Tit'- I pnItIlblt. priv.t. .mploy..... from dillCriminating • gIIln.' queUflecllndivlcluel bee...... of diNiMl1ty

RULES I . Introduction Title I 0( tilt ADA prohibill emplO}'trs . e mploym~nt ,gencin and labor unions from disc riminating against a qualified individual beC1lUK 0/ a disability. Tht ADA prw:ribts such diKrimi_ I1.Ition in all terms. conditions OlIld priviltgn 0( employment. S]ltCifiC1llly. Titit

I prOYioJu: No tlJ"tnd mtity shill disaimi· iIflirut I q..... liflfd individu· ~ with I diubility bea_ 0( tho dilolbility 01 such individual in «,prd to job .pplieltion pro«. du«,s. the hirin, Idvancfment. Or dischuge of empIOY'fs. tmployu comptnsation. job training. and OIhfr t~rms. conditions, Ind privil tgu of emplo},ment.4

11.I!c

......... _ ....... _ ... --. ........ _ ....... --._ -......_._w.

-_ .... . . . . _,_...... _01""_. -~

... _ _ aI

P'...... _ " " _

ir1gI-. """ aI ~

oIE-'aI

rho_,-

TIlE ALABAMA w\WYER

The Act provides that the ttrm "discrimil1.ltt" Includes Kgregating OJ ciu· sifyinQ tht diubled in I way thl! adversely afftcts thtir employmtnt OppOr\unit~ ~rtic:ipIoting in contne· t ..... 1 or other unngrments that haw tho dftct 0( ",bjKting I diQbIed individwolto discrimilllHon. utilizing JUndards that haovt tilt dfect 0( diKrimilll' tion. denying tQ .....1job benefits btca_ of a disability. and f,Uing to select and administer te,ts concerning tmploy· mtnt in the mOlt dfectiw mann .. to tnsu" that the tUlI Oltcurattl ~ .. ntet tht sklll5 or aptitude of the disabled individual rIIher than his or her disability.s Dncribed in the nut thrtt sub$tction, Irt tM ddinition$ of the kry ItnlU conuined in Tit~ I's discri .... ination prohibition. Thest are tht ddi· nitions 0( "diilbility: "othtrwist QUllifIN; and "«'~~ ~tion; The finll lub$tction thtn de.cribu iOI1lt otiltr mooliantous s]ltCific provisiOfl$ of Title 1.

2. 1'1'110 II I diilbltd !nd;"'id.w? An individual is an "ind ividual with I diAbility- for the purposes of Titlt I's antidiscrimin,tion proviJion if he or .... mHts one or ITIO", of 1M following criteria: jal lit or .... has a ~ or mentll impooirmrnt that substantially limits ont or more 01 the lIII.;or lif~ ICIivitin 0( tilt individ ..... I.lb~ iIt or silt has a record 0( such ill! impairment. or (el iIt or .... is reprded <IS having such an impooinntnt. 6 Addit~lly, thf ADA makes clear that a ptu"n .... ho has I relatiOfl$hi, or usociation .... ith 0lIl indio vidu,1 who hu a disability under this definition llso i$ protected by tht Act. Cindy I~n. t~ individual$ who cur· rently have a disability. used to ha.... , diilbility. are «'£irded as having I dis· lObility. or naociatt with sorneont "tlo has I disability all are protrcltd by tho

The Itgisiltivt history 0( tho Act indieltes that I "~ lilt activity'" lor tho purpOilot$ oltht stIItutt mtans a function such as caring for ontKlf. ptrfunning man ..... l tuks, Wilking. suing, hearing. spukin&. bruthing. lu.ming. working. or poorticillllli"ll in community actnities. Thus. thf ADA's broad definition of an individual with a disability covers ptr$OOS .... ho trbdi\iOlli.lly have b«n colI$id·

end IS Iwldkippfd, such il$ those with ambulatory. visual or auditory diloabili. t~ Hawrwr. tht definition ~ tlJ"trs ptrsons ....00 om Ins oIMously diilbltd. For twnple, !host indMduals who have I lowtr !>Kit injury, on« had JUl#ry lor a . r bide injury. lr! consideml to 11M: hid I ~k injury. or are fIIIr· ried to 0lIl lndividwol who tithtr Iw or once had • back injury III I1\iy be ccwtred by tilt Act. In filtt. such conditions II obnity or cosmetic di$figurement may be eovtrtd on tht basis that these ir,divid .....1s will be -regarded as- having an imllllirmtnt. The Act dots not includt 0lIl tzhaus· tM list of t~ disabilitits which art eovtrtd by Tit~ I, but ~mplo)'m should ellpfd that the dtlinition 0( disability will inc lude such conditions IS orthopaedic. vis ..... l. spHch. hearing. mustulu, mtntal . tmotional. and It,mi"ll diilbilitits. Such conditions IS canetr. hurt dis ..... lung diKue, cerebral poolsy. t]llltpsy. multiplt scl,rosis, diabetes. and AIDS clearly would be covtred. Allhough individuals who cur· r~ otly Jr ~ engaging in illegal use of dr\llll art r.ot eovtnd by thf Act's defi· nition. rthabi1i~ttd druQ abuser$ and recovered alcoholics a«' covered. 7 Ctrtain "behavioral disorders" specifi· caLly are txcludtd lrom tht dtronition 0( disability. Such conditions includt homow; ..... lity. tnnsvtSlism. tnrusau· II""" compulsivt pmbling. kltptoma· nil.. and pynln\lni.l. 8

3. Who II otilt....; .. qUllifoN? The term "otherwin qualifitd" as used in Tille [',Intidiscrimination provision is an extremely important con· cept under the ADA. The purpose of this concept is to prohibit discrimination og.a.inst an individull with I diJability who has the ability to compl.t, tho pri. miry functions 01 a job. tvtn though that indMd .....1 miaht have diffICUlty or tvtn might be completely UMble to ~rfo rm ocelsional tasks iSsociattd with the job. By way of ~lQmple. an rmpl~ suking to fill 0lIl inside cltrical pos.ition Wlnot rew to hire a ptr· son ..."host diQbility prtvtnll th.1ot ptr· son from obtaining a drivtr's license if. only on an oceuiOlli.I basil, that cleriC1l1 person norm.ally drivts from one com· pany facility to another to ptrform a

May 1992 1195

job-related \uk. Of CQurse, on the other hand. an O\'tr-the -road trucking company would not have to hi re that same perron for a driving position bttause drhing would N the principal function of the ~mployee hired. The ADA rtfers to "essential functio"'!" and """,,-ginal functions" to clarify those job duties which will be sufficient to e. elude an individual from consideration for a job and those which will not be suffident.9 F.~ntial functions ne those functions which art "intrinsic" to a position , Marginal functions are those which are only tangential to the job or are only occasionally associ ated with the job. Although an employer cannot delennine unilaterally under the ADA what job functions are "essential, " the ADA does provide that the employer', judgment should b. giv.n consideration in "",king this determi路 nation, Job descriptions are considered ill evidence of essential functions of a job. especially when those job destriptions delineate essential and marginal functions. 10

4. What il a rtaJonahl. accommodation? The ADA requirts employers to make reasonable accommodations to otherwise QualifIed disabled applicants or employt'e$: ITlhe term includ.. -

not making .eason.ble accOm modation.! to the 1m""11 physical or mental limitation of an otherwile Qualified individual with a disability who is an applicant 0' employee. units> such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the bUliness of such """. ,'", .... II ere d en"" Whether an accommodation is "reasonable " depends upon the conce pt of 路 undue hardship." This inquiry is pure ly cost-based. and the Act sets forth four factors to be evaluated: (al the natu re and cost of the accommodation

FAMILY LAW SEC ALABAMA STATE

196 / MaylWl

"discrimi n ate "

needed. (b) the finanCial situation of the facili ty or facilities invol,w, (c) the overall fin.ncial situation of the emplo~.r. and (dl the nature of the employer's operations. t2 With .ega.d to what types of accommodations may be reasonable. the ADA suggests job restructuring, modified work schedulu, rtassignment. acquisition or modification of equ ipment Or devices. modification of tests or training materials. and the provision of qualified rtadus and intertlrders ,13

5. Other specific pl'O\"is ion. Title J of the ADA CQntains a number of specific prohibitions which are intended to protect further those indio viduals with diS/lbiliti ... For example. the Act prohibits pre -employment medical inqui.ies, including those on emp loyment applications, and also prohibits pre-employment medical examinations .14 Th e only inquiriel employ... may make pre-employment are inqui.ies related to whether an applicant can pe rform the essential functions of th e job applied for, with or ""'thout reasonable accommodation. Medical examinations may be givw after a conditional offer of employment is made. but the results of such ..ami nations must be used conlistent with job-relatedne .. and business necessity .nd must not be used to violate the Act. All employees. not just those with perceived disabilities , must be subject to the exarm, and results must be kept in speci.1 confidential medical foles. Title I contains specific provisions relating to drug programs. The Act provides th.t d.ug t.sting remains legal and that an individual testing positiv. for illegal drugs is not protected b)" the Act. Drug testing programs may not N ustd. however. as a vehicle to evade the pUfJIoses of the Act. For ..ample, an employer may not test for prescription drugs, the detection of which would rewal a protected disabilit;'.IS On. important spec ific prOVision is hel pful to employers. The ADA allows employers to reject applicants if thei r disabili ties "pose a dirtct thrtat to the health or safety of other indi.; duals: 16 Once again. however. this standard is a difficult one to meet. and the risk must

THE ALABAMA LAWYER

be one "ilich cannol: be elimilllllt1l with rusooable KCOIllmodation. 1

REMEDIES Enforcemtnt of tht tmploymtnt dis· crimination provisions of the ADA il vuted with the Eq ual Emplo~ment Opportunity Comminion ("EEOC ") . Li~e lIggTi~d individuillt under Title VII of the CMt Rights Act of 1960t (Title VIII. i penon who clailTl$ d~rimilllltion mlllol lilt i chHgr with tht EEOC within 180 Ib)'l 01 the ;aJ1~d dilCrimilllltory Xl lS Individwols thtn mi)' lilt suit in fedti71l court within 90 dIyIlJi tht ron· elusion of the EEOC·, in~ltigatlon if the EEOC dots not resolve the juue. Prevailing plaintiffs will be entitled to injunctive relief such '" ~ins\.iltemtnt lind. bKkp;ly and will be able to _ r ittorntyf ftes. ~cauu 01 the ADA·, incOrpOrition IJi Title VII procedu~,. which now inelude prOYisjons 01 the ntW Civil Rights Act of 1991. p\.Iintiffs 11$0 w;1l be ent itled to comptnutory lind PIlnitivt damages and jury trials. 19 Emplo~en need to take immedi~te steps to protect themstl~ from futu~ ADA discrimination c~rgti. Employrmnt fomu should bt invtntoritd and illeil' inQuiries deleted. Job delCriptions should be de... loped to define uHnliil ind margil\ll.i iob functions. ifld ufety considerations for exh iob should be considered. Employers ..Iso should be msed to begin CONiderin, what types of accommodations can be made lor the most common typu of diubilitie..

TIt!. III prohibit. pu ...1c accommodlot ...... '""" dl.-

criml_tlng . . .Inst Indlvl. . .t with dlnbillty

RULE S introdudiOfl Titl. III of tht ADA prohibits diKrim· ;NOtion in public lICcommodations. Title 111"1 nondiscriminlltlon prohibition i'flIuiru both tht provision IJi lIUXi1illry lIids ind It",;en lind the remo'lll of ir(hittelui71l and oommuniCltion barriers. AUKilillry lids lind ""'icu if. not required if pr0\1ding tht aids and serviCts fundamentally would alter the

THE Al.ABAMA LAWYER

nature of the good or u",ict btinll offtml or would (.lust ifl "unci... burden.-20 Liktwise. rtlfl(M.l of archit«· turlllllnd communlCltion barriers in nisting fKilitia mUlt be a.c:complishtd only il to do 50 il "rtaclily Khi<v.tbt..""21 Additionally. new con~t ruction and major rtllO'Vatioru mUlt be made readi· ly aCCfuibl. to arl(\ usable by di>.abl.d individu~II.22 Oi$Cussed nut is Title llrs C(JYtragt provisions.. SpecifIC regu· lations IS they IPPIy to lids Mod servicts and the remewlll of barrien then ITe discussed. Following th.>t d~~ion il an O\.. rview of the new construction rtquiremtnu..

C"",ng. Th. r.guilltions su.te lhat Title 1tl"1 IIccessibility rtqu!rtmtnU fo r u;sting fKilitits. lIS OIlpoHd to the MW con· struction rtqlIirtmtnts. "Ally to "pub. He accommodations." The ,...;ulltions further Itilit thllt the requirements obligate I public Kcommodation only with respect to the operation of a "place of public accommodation" and not to III 1000tions. A · place 01 public Kcommodation" is dtfintd IS II facility operated by II privllte entity whose operations .fftel commtn:e and which 1,111 within tht t.IottjOry IJi I ules. Hr· vice Or nnul ullIbUlhment. ,,·hich includes ill businulU open to the pub· lic.n Th, now construction requirements of the ADA apply to I much broader spectrum of facilities than do the iCctI· sibility rtquiremtnts for existing facilitits. SpeciflCllly. tht new construction requinmtnls apply to "commercilll !Kilities" which.lZfTIti71lly SPfIIking. art completed for initilll oc:cu~ncy .. fter Jwwory 26. 1993. A "commtn:i.lI !Kili· ty" is drfintd simply IS a facility which il intended for nonru;dtntilluse and whose Opti71tions will allKI commerce. Thus. the "commercial facility" defini· tion will include all of those manufac· turing. distribution and office facilities ...tlich do no! mett tht "pla.c:t of public: lICCOITImodation" drfinition.2-i

EKilting fKilit;u - .""mary iMls and unittl Th. rellulations conillin specific provisions related to aUKiliary aids and ser·

vi«! and the remcml of barritrJ. With reQlni to lIllliliary aids and Hrvitt$. tht reguilltions ltate: A public ~ccommodation 1h.l.1I take those steps th.I.t may be nee· tn.Iry to ensure th.I.l no individ· ual with a disabili ty is ueluded. denIed se",;cts. segregated or otherwiu truted differently than other individllils btause IJi tht ibsenu IJi ausilillry aids ;and ' .... iul. UniUI tho public aceornrnodation ClII1 demonstrate thit tllking those stepi would fundamtnt.ally alter the IIlItur.1Ji the goodl. urvicel. fidll t iu. privileQes. aon·antages. Or accom· modations being offtred or W<luld result in an undue burden. i.e.• signiflWlt difficulty or p:ptnst.2S

The re,ulliions specifiCllly stile t~t "Ial public accommodation shill fu r. nish Ippropriate ~UlIilillry lIidllrl(\ Hr· victs where neceloSary 10 ensurt erfee· tivt communication with individuals witn disabilities." Examples of auxi1i."1ry ~!ds and services include the following: QUillifitd inttrprettrs. notetaktrs. and computer-aided tranlCription devica; llindset MIlPlifien and other usis· tM listenin, devices; Closed caplton decoders: Telecommunication devictJ for d..( persons ("TD[)S"): Vidtotut dispLi.ys; Qullifitd readen: T~ TKOrdings: Bi7lilltd materials; Acquisition or modiflCltion IJi othtT equipment and dtvicts; and Other similu serviuund actions.

The fe,ulalioru spKifically requirt II public accommodation to ha~ a TOD available if clients are giom tM Oppor. tunity 10 mak. outgoing ttlephone calls on mort t hin an incidtntal conve· n;mu basis.H The (iilure to provide In IUlilillry lid or Hrviu may be UCUKd if til the aid or service would result in II lundamtntal IIlterlition of the nature of the bUlineu services offered. or Iii) the aid or service would ruult in an undue M.l~

1992 1 197

burden. d~fined as a "significant diffi· culty or upens •. " If these circum· stances exist. the pubtic accommQdation must provide SOme "a lternative" aid or uNiee that would not alter the nature of the busin.» UNkes offered or would nol resull in an undue burden.27 The regulations further define the tenn undue burden. Factors to be considered include: The nature of the aClion needt<!; The cost of the action needed; The OV<'r~1I financial rewurces of the . it. invol .... d; The number of perrons employt'd at the site; The effect on expenses and resources; ~gitimate safety requirements;

The impact of the action on the Oper· alion of Ihe site; The geographic uparatene» of the sit. to any parenl company. The adminisl .. tive Or fiscal relation· ship of the site to a parent company;

'"" The overall size. finanCia l resources and operations of any parent com· pany. The Department of Ju.tice has made clear that any companiu basing a defen", upon financial hardship must be p,..,pared to disclose all of its finan· cial reconls.28 Removal of barrien The "removal of barriers" provisions of the ,..,gulations state:

A public accommodation .hall remove architectural barriers in existing facilities. including communication barriers that are structural in natur •. where such removal is readily achievable. i.e .• easily .ccom· pli,hable and able to be carried out without much difficulty or .. penu.29 E""mples given related to the removal of barriers include: Installing ramps: Rearranging furniture and shelving; Repositioning telephones: Adding rai.ed markings on ele"tor control buttons: Widening doors and installing offset hardware: Rearranging toilet stalls: Installing toilet grab bars: Designating parking spaces; RelTlO'ling high pile carpeting; and Installing "ehid. hand controls. 30 The regulatiGns are dear that the", eltamples are not eltClusi ..... The regula· tion5 further define the term readily achievable. Factors to be considered are .irlually identical to the factors listed ahove IG be considered in evaluating · undue burden:3!

MISSISSIPPI VALLEY TITLE (.;]

...... T. __

3'1T_ _ 131101)

'00..-_

:I'mS·ma

.,~

A MinfllJsora rdle Comp3ny

198 ! Mayl992

Now construction Th. ADA requires that new CGnstruc· tion relating to a ·commercia) faciHty" intended for firll occupanC)l after JanU3ry 26. 1~3 must be "readily accessi· ble IG and usable by individuals with disabilities:32 This requirement basi cally means that any .uch construction must mut the Americans with Disabil· ities Act Accessibility Guidelines Ithe "AOAAG"]. The ADAAG are detailed architectural guidelines which ha". the force of regulaHons and which ~ddre,.; a wide variety of canst ruction detailS. such as walkways. hallways. doors. 100· bies. and restrooms. Any alterations affeeting acce,.; to an arta of "primary function" of a facility also must meet the ADAAG. A ·primary function" is a major activity for which Ihe faci li ty is intended. so the regu lations include I!"ces such as offic.. and other work a ...... The new construction prIWisions ha"e a 20 perctnt "disproportionality· THE AlABA."1A LAWYER

provision. t!owt...,r. whkt! providu WI costs iIKM 20 ~rcml oIlht 101,1 cosl oI lht conslruction which othtr· wiu would be required to mrtl the AOMC ~ be ;woided. 34 The reQu~, tions provide th;lt «rtlin Iftu. !1\IIinly p)lh of t", vel ~nd restroom ~rus. should KceiVl' priority in determining which uus .hould m«1 the ~cu$ibil. ity uquirtrTM!nts.

REMEDIES Tht rUpOn.ibility for compliance with Titlt 111. unli~ Title I. mil wilh DO). Any diubled individu~1 who belieVl's tNt h. or .he h&t betn subj«t 10 discrim ination may KqueS\ DOl 10 institute ~n in"utigalion of a businus. Additionl.tly. where tht attormy geMr. allw rt~ to beH ...,., wt thfre .....y be • violation 01 Title Ill. 1M attorney genull may initiite I compliance r~i ..... Following such an invutlga· lion. Of at any othtr lime II tht 1110" My ~M .. rS discretion. DOl ~ insti. tute a civil action ;n feder,1 districl court if the attorney general hu nuon to belleVl' tNt Title III h&t been violat· ed. In soch ases. DO) ~ snk equi· !.Ible relitf. including ~n order requir. ing Iht provision oIll1'fCific kI1il:&ry aid 01' M'Met. !1\IIy request monetary ~s Mr the individmls lIirievtd, mel may ~ civil prnaltiH for up 10 SIOO,OOO. Punitive damagu are nOI Ivallable. 3S More significantly. any prrson .... ho is beinQ subjected to discriminat ion on the buis of a disability in violation of Title III .....y institute a chilloCtion in /ederal diJtrict court and ~ _k tern· ponry and prrTnllnfflt iojunctivf: relief. The attorney gene ...1 may inte","ne in any such suit if he or she determines tNt the CUI' is 01 general public impor' !.In«. Allomo-ys' f..s. litiption exptll$· es and costs are available to prevailing p)aintlffs. 36 Defending companies likely will fxe difficult cun brought pursuant to Title III. If' buiiness Iw ~iltd to prOvilk lU1ili.lfy lid. and "MC" or hu /ailed 10 rtrrocM path oItr1l~1 barriet'S, and tm only defense...-as Wt COlt con· si dn~tions pftv.nttd Ihe IClion ~t iuue. the bu,;ne .. unrting the defense will have to be prepared to expOst the financial condition of the TI lE ALABAMA LAWYER

company and any relited companies. This will be an e1!remely und"irable llternative. elpt:(ially for priv~tely ov."ed COfrIIWIiu. Addiliorv.lly. resolu. tion or prospective tuI'S no doubt will be result·orienled. and it .... ill be ~ry difflcult Mr, company with significant a.lSds and income 10 claim. for exam· pie. thit purchuinQ I telecommunica· tions <kviet for the deaf costing only l. f.,... hundred dollars would N'''' betn III "undue burden." Businessu must dtttrmi ... immedi· ately which lUJ:iliary aids and .. rvicu will be ulily Obllinible ind must in~ntory obvious Ifch,tectural boo .. i. ers. Businesses then should take rU' sonable steps towa,d ~ccomplishing tM required ~ks in SOffit f.:uhion, ...'tn if the most desirable alternati..., is not possible. "or eumple. If a compa,ny's main male and female ,"trooms can· not be made accessible. i unisn mtroom at lealt Jhould be !1\IICIt xas· sible.:u soon as pOSSible. Pri!1\llry ilten· tion should be focUM'd upOn pa,lh of travel areas. Finally. busine.lSes will have to keep in mind the additional expen..s nsoci/lted with the AOAAG's impact on new conttruction when determininQ whether to mixe alter· ations or ilddilions.

ke~ e.pect. 01 compllence and enforcement

Individuals with disabilities now will enjoy the p,olection of fedenl civil rights ~".. ill others N~ for discrimi· IlItion bistd upOn Dl:e. In. age. reli. gion. ind national o riQin. Alabooma e~rs must reiliu that sttreotypi· ca! opinions about th. disabltd iIb$o. lutely must be diuegudtd in !1\IIking fUlure emplo)'mtnt dtcisions. EmplO}'· e.. must nol only avoid adverse employment decisIons Iwtd upOn dis. abilities. but they also must be pre· pared to provide rnsonable acoommoditions 10 diubled Individuals wt!o could nol perform i job othe ..... i... Employert mull take cue to lvoid inquirin. conscious Or unconscious. into the disabililies 01 ils Ipplicants or emplO)'fts. AlIoblo!1\ll lawyers should be aware that individuals disc riminated ~gairut have defined rights and may be

able to obtain substantial dama,e 1W1nh. TiUe I discrimination charges mUlt be filed with the EEOC within 180 <Ia)'l 01 tht discriminatory xt to pre.. rve these rights. Complaints about publk accommoda' tions alrudy ha"" been filed with DOl, most notably against high profilt fl<;ili· tiu such as the Empire Statt Building in New York City. "Tuten" no doubt will be iClive in Alabami IS well. Susi· nuus must tike i common stnlt )ppr~ch to Title Ill's ICCfssibilily requirement. and b,gin makin, the basic. and esptcillily Wible. altentions required. \\1l..lchair ramps. moto, iud (or al lust w;d~ned) doors. and telecommunications deviCes for the dtllf aK but a f.,... e.amples. In castJ in whith individuals hlNe been denied 1oC(t$$ 10 public sales. ren!.ll. Of M'rvict utablishmmts. Ataba!1\ll ~W)'CfJ must be iware thit IheM' pOIent •• 1 client, h.a"f subslintilll rights as well. •

Endnote. ..... L ......'.-'01 ..... mll _ _ .. GII.I.C. tt 1!1I1·1%l0 , _

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May 19921 199

HIGHLIGHTS OF THE

IVIL RIGHT ACT OF 1991 By R. TA YLOR ABBOT, JR.

[I I I[

Nowmber 21,1991 the

United Slat ..

Congr~u

made the most sweepmg

change. in civil rights law$ since 1964. On that day CongreS$ pa... d the Civil Rights Act of 1991. ther.by overturning or modifying no

fewer than five Supreme Court decisions viewed by lOme as unacceptably rulricti .... of employee$' d,'il rights. In doing. CallgTen oponed the flood-

$(I

gates to future litigation refining the roncopt5 and defining the terms U5ed in the 1991 Act This article examines some olthe highlights allhe 1991 Act.

I. Section 1981 suits based on

contract Section 1981 grants to all penon! "the same right ... to make and enfor«

contracts ... as is enjoyed by while per_

sons: 42 U.S.C. § 1981. The Supreme Court had long ago he ld that private employment contracli were among the types of contract proteoted by Stction 1981. Johnson v. Railwall Express Agenq,. Inc .. 421 U.S. 454. 459·60 11975) ("§ \981 atfonb a fede!"lliumedy against discrimination in private employment on the basis of rau"l. The phras.e""to make and enfol« contracts" had been interpreted to include all alpecll; of the employment ulatioruhip lrom hiring to discharge and everything in botween.

200 1 May 1992

The Supreme Court changed that in 1989 with Pallerson u. McLean Credil Union. 491 U.S. Hl4 (1989). The Court there construed the terms "make and enfonce" literally to mean the formation of a contract. but not the tennination 01 a contra ct. Section 1981 thus was d«med applicable to claims of !"lice dis· crimi!l/ltion in hiring and promotion or trarnf.r involving new terms and condi· tions of employment. but not to claims of discrimination in discharge. demotion. Or other terms and conditions. since those processes did not in,olve contract formation. Cong.... shored up the nosion of Section 1981 in the 1991 Civil Rights Act. The \991 Act does away with Pallerson by providing that Section 1981 applies to all alpects of the employment relationship. including discharge. as follows; for purposes of this section. the term 'ma ke and enforce contracll;' includes the making. per· formance. modification. and termination of contract •. and the enjoyment of all benef,ts. pri,ileges. terms. and conditions of the contractual relationship. Se<:.lOllb). Lest then bo any further tinkering by the Supreme Court. the 1991 Act also codifi .. the Supreme Cou r!"s longstanding construction that Section 1981 applies to private as w~1I as public

acts of racial discrimination. (Sec. 10I(cl'. See Runyon v. McCrary. 427 U.S. IGO. 168 U976).

II. Compensatory and punitive damages in Title VII cases T raditionall~. compensatory and puniti.'e damages have not been avail· able in actions brought under Title VlI of the Civi l Right s Act of 1964, 42 U.S.C . if 2000e et stQ. which prohibits discrimination in employment. See Walker u. Ford Motor Co .. 684 F.Zd 135511lth Cir. 19821. It is nol surpri,· ing that in time.s pa>t plaintiffs ""<luld strain to add a Section 1981 claim of ract discrimination to their Title VII race discrimination cla im since com· pensator~ and punitive damages are available under S<!-ction 1981. Su. t.g.. Johnson u. Railu!ay Express Agency. Inc.. 421 U.S. 454. 460 (1975); C/aiborne v. Illinois Cent. R.R.. 583 F.2d 143. 153 (5th Cir. 1978). u ri. denied. 422 U.S. 934 (1979). Ironically. while at the SlIme time expanding the availability of Section 1981 as an awnue to remedy racial dis· crimination. Congress decnased the likelihood that plaintiffs will join s.,ction 1981 claims to their Title VII laW" .uits by permitting recowry for compensatory and punitive damages under Tit le VII in cerlain circumstances. Undtr the 1991 Act. available com~nTHE AUJlAMA LAWYER

HtOry danuges !nclude ' future pecu· niary !osaes. emotioN! pain. sufferin" illCOfMnien«. men~! IIIguish. loss of eflioyment of li~. l!ld O!h« non·pecu· nilry!ossa." (Sec. II)2{bl(3)}. Part oItkt compromin usociattil with the 1991 Ad "'~ tile pi.Ktment of certa in limitllions on the right to recover compensUOry and punitive damages in Titte VlI IClions. First. compenDtory and punitive dlmage. an available only in uses of disparate treatment. IS opposed to disparate impact. Iu is well known •• disparate treatment cau is one inWllving inten· tional discrimination. usuall~ with n'PKt to om individual. The disparate im~t theory. on the other hind. il thlt a fadilly neutr.1 employment prxtice operates to affect. protected clUI dilproportionally. ngardless of intent. Anothtr limitation U the ubblish. ment of ups on the totll lmount of compensatory and punitive damages available. okpending on t~ siu of t~ tmplOYfr. The sum of compensalory plul punitive dam.gu i. n<)t to uceed $50.000 for employers with btt...... n 14 and 101 employeu. 5100.000 for employers with bttween 100 and 201 employeu. $200.000 for employeu with bttwHn 200 and SOl tmployfts. UK! SJOO.OOO for tmployus with mort Ihi n SOO employees. (Seclion Il)2lbl(J)). The final limillllion on the m:owry of COIllptllS.iloo-y UK! punilive damages u INt punilive dimigu an recowrable only if thr employtr enPlled in I dis· criminatory pTictice .... ilh malice or wilh recklw indifftrenu to the f~e",l· Iy protected rights of an aggritvt<i indio vidual." (Sec. 102(bl(] n. It tiln bt antic· ipated tlu.t plaintiffs will euily Mable to reach the danugu cap without 1M

IL T ......

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nfCtssit)' 01 provinQ malice or rtckless indifference. nw oompensalory m:I punili\.., darn· ~ pl'O'lisKMls oIthr ]991 Act will pr0duce a mlJsiw amount of lilig.llion OIItr issutS Idt unrrsoMd by lhr Act. TM constitut ionality of Ihe caps. for eumple . will hI"e to bf: Ttsolwd. In addition. tllfre is no ;ndi~tion in tile Act or iU!tQulitiw hi.ltory .... helM. lhr ~ps apply individually Or conecti"ely with respect to lIch plaintiff Or defen· dant in a lawsuit. N.lther the Act OOr its legislative histo!), inditilte .... heth.r the tilps apply to eath ,llt2.d ct..im 0 ' violati on individlUlly Or colltctiwly. The meaning 0( Ihr phrase -"';th mali« Or with rtcklns indilknnc." will ill(l bt the subi«t 01 dtbIle $ina it i.I nowhrTt okfined in Ille Act.

III . J.,ry tn.l . In Titl. VII • .,it. Prior to th •• lUCtment of the 1991 Act. most COUTU held that jury trials ....ere unavailable under Ti tle VII. SH WallO!! V. COOlin €quipmml Co.. 930 F.2d 924 (II th Ci r. 1991 I. C(!rt dmied. 112 S.Ct. 86 (199]). The ]991 Act per· miU jury trials under Title VII .... hen· ever i plaintiff Helts compenuto!), or punitive d/I~u. (Section ]1)2(,)). It can bf: expected thi! pll;nlilb will routinely claim entitlement 10 COm· peru;ltoo-y and punitive darn;ogn. Tht 1991 Act forbids the court f rom informing tile jury 0I1ht capS on darn·

.....

IV. B.,rd. n of proof In dl ..

p.r.t. Imp.ct c •••• The chid Impetus for the 1991 Civil RighU Act ...... tile 1!<89 Supreme Court cau Wordl Co,,~ PQc/cinfi Co. v. Antonio. 490 U.S. 642 (1989). In that un. the Supreme Court radically alt.m! in _r.1 ~ tile t~itiorwol dlsparau irnpKt mockl r. .... ~ by the Supreme Court in C.iggl 9. Ouk, f'octw Co.. 40] U.S. 424 0971) . Fint. prior to Wards C001f'. i plainliffs obligation to prove discrimination under the disparate impact model extended 10 showing an underlying or bottom·line statistiQI disparity and thr d.fendant w.. then obligated to prove that tach of iu employment practices

w.. not respOnsible for the disparity. "'/Irds Q:w eliminattd this proctu by holding thllt lhr emplO)ft is n~i. ble for isobting and identifying at lhr .... lSI:t lhr qwciroc employmtnt prxti« illegedly responsible for any observed SIlItistical disparilies. 14'<ITIts Co« ilJo es\iblishrd the par. ties' respective burdens 0( proof in dis· parate impooct CUti. Once a plaintiff t5t.lblullfs, prima f(1Ck ClOSt by identi. fying a specific employ ment practice rnulting In disparate impact, Words Cou~ held. the burden , hifts to t he ddend~l1t to ·produce" evid~nce of a busine" ju.stilkltion for the employ· ment practice. with the burden 01 per· lUlSion mnaining with thr plaintiff to Jhow thllt tile chllllell#d practice u no! ju:ltififll by bu.sineu nt~"ity. or tl\i.t ilterTll.tive pno:til:u ....atJld nduc. thr impact. (490 U.S. Itll56-60). nw Civil flights 01 ]99] modifies or reverHII theH holdings. Th. plaintiff must Itill identify the .pedflt employment practice allt~dly rtsulting in du· parate impact . subjtct to the exception that the various elements of the deci· sion·rru.kin8 prOCe" may bt analyud as one whole employment p",ctice if Ihfc pliintiff demonstntu to the court that the elements of the decision·makirtll procns in not CiPibit of Sfparation for analysiS. (Stc l ion 10S(a)). II un be nptCt~ thIIt we will 1ft much lutu", litigation inwlvingthr issue oI",t.ether cltcision·lNking proceduru lrt tilPibIe 0( IotPirlilion for analysis for purposes of showing diSplorate impact. nw only guidanct provided by the 199] Act i, in the In t erpretative Memorandum intended to bt the exclusive legislati". history with rfiptct to the a,mls Coot part>oru 01 the 1991 Act: When a decision· making process includes particulir. functionallyintegrat ed practices which ar. CQI'lIlOIlenU of the same crittrion. w-ndard, mdhod 0( administra· tion. or lut. $UCh is the hright m:I weight rtqlIirtnltfllS ~ to 0TItISUJ't IImJl1h in DothorrJ u. RaU'lmson. 413 U.s. 32] {l977l. t~ Pirticu~r. functiOf\l.lly-inte· ~rattd practi«s may bt analyzed .. one employment practice. (interr reut ive Memorandum. 137 Cong. Rec. S. ]5276). May 1992/ 20 1

The 1991 Act also alters the burden of proofeS\ablishe<! in Wards c:oo.. by pro. viding that an unlawful employment practice is established if the plaintiff dem<,>mtratos that. particular practice results in a statistical disparity. and if the employer fails to "dem<,>nstrate lhal the challenged practi"" is job ,...Iated lor the pOSition in Question and consistenl wilh business necessily." (Sec. 105(a)). The term "demonstrate " is defined by the Act to mtruI "m<el> Ihe burderu; of proouction and persuasion: (Sec. 1041. The terms "business necessity" and "job ,...Iated" a,... intended to ,...lle,t the deronitions of thos. COTICI'pl> as enunciated by the Sup,...m< Court in Criggs v. Duke Power Co .. 40] U.S. 424 (197]), and in other Supreme Court deci.lions prior to Ward< c:oo... See Interpretat;ve Memor:mdum. 137 Congo Rtc. S. 15276.

v. Milled motive c.ses In Price Waterhouse v. Hopkins. 490 U.S. 228 (1 989 ) the Supreme Court held that in the situation of an event which is motivated by both lawful and discrimin.tory reasons . then the emploY'e Can prevail on ly if the employt'r fail' to show that the sam. decision would have been made even in the absence of the discriminatory rU· son. The 1991 Act reverses this decision by providing that "an unlawful employment practice is establish.d when the complaining party demonstrat.. that race. color. religion. sex. Or national origin was a motivating factor for.O)' emp loyment practice. even t hough other factors also mot ivated the practict." (Sec. 107(a)). The 1991 Ad provides some relier. however. to a ddendant who can show that oth~r, non-discriminatory ,....sons m<,>tivated the .mploym~nt d.ci.ion. If the employer would have taken the same action in the absence of the discriminatory faClor. the court can grant declaratory relief. injunctive relief. and attorneys· fees attributable only to the pursuit of the claim with respect to the One discriminatory factor. but cannot order ,...instatem<nt, hiring, promotion or aO}' other damage'.lSec. I07~b)). Re.d in conjunction with the other provisiom; of the 1991 Act. thi! provision provides an avenue which could 202 1 May 1992

permit ddendants to avoid cla iml of comp.nlatory and punitive dam4ge. and . th ..eby. als<> avoid jury trials. If the empl o~r can demonstrate that it would have tak.n the .ame .ction in the absence of the alleged discrimina· tion. there may be a basis for striking the plaintiffs clai .... for comperu;atory and punitive damages and for jury trial.

VI. Ch.llenges to consent Judgments Th. 1991 Act includes a provision .pecifically rev.,.ing the .o-called "Birmingham Firefighters" case. Murlin v. Wilks. 490 U.S. 755 (19891. That case involved a challenge by white flr~fight ers in Birmingham to c.m.. nt decr.e. entered in a law.uit years ago which provided affirmative relief in hi ring and promotions to black roreflghters. y,hite firefighters filed a separate law.uit alleging that employment decisions made on the basi. of the consent decrees wue unlawful because they were based on race. The Supreme Court held that the wh ite fi refighters were entitled to chal lenge the consent decrees in the subsequent, separate lawsuit because they did not participate in the prior case which had produced the consent dec reu and could not be deprived of legal rights in pr~edings to which they we,... not parties. Not sat ilfied with this resu lt. Congr..s in the 199 1 Act limited the circu .... tances under which persons can later challenge consent dec,....s or judg· m.nts ent ...d in civil righh ca •••. Under the 1991 Act. a rorutnt d"',.... Or judgment cannot be attacked by any person: (I) (a) Who had actual notice of the proposed judgment Or order sufficient to apprise him that (il the judgm.nt might advtrsely affect his int.,....1> and that (ii) an opportunity was available to present objections to the order. and (hi who had a rea· sonable opportunity to present objections to the order: or

(21 Whose interests w'" adeqUately represented by another p. rlon who had previously challenged the order or judg-

ment on the same grounds and under similar factua l circum· stances. unless there have been interv.n ing changes in law Or fact. (Sec. 108). These restrictions do not apply to parties to Ihe original action or consent decr.e. including cI'S! members. Perm itted challenge. to consent decrees are to be brought before the judge who tntered the consent decree in the first im\an"". (Sec. 108).

VII . St.tut. of IImit.tlons for ehllll....lng seniority systems

In A I ~bama, which has no stat t .gency dealing with .mployment di.crimination matte rs. complaints of discrimination mu.t be filed with the Equal EmplO)'ment Opportunity Commission (EEOC) within 180 days of tht ~neged unfair employment pr~ctic e. 42 U.S.C. § 2000e·5(c). Confusion can arise ov(T when an "alle ged unf.ir employment prllCtict" occurs.•ince a pract ict can be instituted but not felt by Ihe affected employee for some time. Such practicn might include. for exampl •. changes in seniority .ystel1\ll: an employer can change the way .eniority i. accumulated. and the employee may not feel the effect of that change until it is time for her to relire. "'ell after 180 days from the date of the change. That was the .ituation in Lorance v. AT&T Technologies. 490 U.S. 900 (1989). Th.",. the Sup ,... me Court held that the tim~ lim it for filing Title VII claims began to run from the time of the adoption of a discriminatory seniority sy.te m. and not from the subse· quent tim. that il> elfecl> ",ere felt by .mploy.... This holding caused some cOncern becau.e it required the plaintiff to challenge a seniority system before he "'as ever affected by it. The 1991 Act revenes this cue . Under the 1991 Act. the tim. period for a challenge to a discriminatory seniori. ty system begins to run from the time I) wh.n the seniority system is aoopted. 2) when an individual becomes subj.ct to the seniority system. or 3) ",hen a 1l"rson is injured by the application of the "niority .y.tem. ",hichever of the th,.... i.lattT. (Sec. 112). THE ALABAMA L.\WVER

That new ,\Cernal ruin ~pply only to nnio l ity syst~m$ th~t hiv~ "bun . . .td Iof iI/I intt11tioNlly diKrimiN· tory purpoK." So-c~tt~d "bon, fid~" .eniorit)' systtlT\$ which "I' not inlt11· lionIlly discliminaIOT)"" slill subject 10 lhe I.immct holding.

VIII . Reb_clive eppllceUon Of mo,t immtdi U . concern to employment law praclitioners is tht QlltStion of the ml'Oictivt ippliution oIthtc 1991 Act. Tht Act was sill/ltd into 11 .. on Novtm~r 2]. 1991, wi th Ihe pro...i.ion that. "[xcepl as otherwise sptclfically pfo...idl'd. this ACI and the amendmtnt. made by this Act shall U.k. dftet upon t .... ctrmnt: (Stetion 402lal). It would bt ~ ~rt>N undol'St.:lte· mtnt to liiy t hat t he inue of the mroadiv! lIlPlicalion of tht 1991 Act is dtbiollblt. Connicting ~tiv! his· toT)' and ~ law n guding Ihe stan· dardi for fttroad;"" ipplicllion ptrmit both sidn of Ihis issue to lid"ance tol· o" ble ar~um.nts lor thei r ruptcti,·t pOSitions. and the i.. ue will ultirruolely havt to bt settled by tht Ele.tnth Cir· cuit ind probably the Suprtmt Court, In the rmantirm, practiliontTS ire ~ with m.1most btwildtTin' amy

.. -ays. In tile Irgislativt ClItegory. oIargumtnts iIlCI QSt history IN cutting both

then Irt statemtnlS by StnlltOIli Dolt aM ~nforth. who ..... n rruojor spOrUOn 01 the compromise resul t ing in Ihe 1991 Act, to tht eflect thit the Act dots not apply to cues arising btfo rt ilS effective datto (137 Cong. Ret. S. 15472. 15478; 137 Congo Roc. S. 154831. The s.poNOlli of lhe compromise .1100 pliool in tht Congmsional Rtcord I Sponsors Inltrp relative Memorandum stating thit the Act shall not .pply mroad;""· Iy. \131 COflg. Rec. S. 15483· 15485). On tht other side, we have Senator Kennedy I tating that r"roacti,,;Iy-will bt up 10 the cou rts to dtter· miM ... (1 37 Congo Rec. S. 15485). RtpnKnWiv! Don EdIOOlrd:s 01 ~Iilor· nil llso uprund his vitw on t he rtCOni that it _Iits mroactiwly. tytn though he was not Ihe author of the .fftcti.... date J)I'OYision 01 tht Act. (137 Coni. R~c. H. 9530). The case law is al$O con/using. wilh two li nes of authority upressing differ. Tl tE Al.AaAMA LAWYE R

wt stanc1ar<h for

~ttnninjng rd~·

tivit)'. On OM hind thtr~ is 8ou:m II. CtorgdOll7l fJni.~sil, Hospilal. 488 U.S. Z08 (1988), "ilic:h fi'JOf"S prosptC. t~ ~tiutiOfl ~ ~ thit .oongff:! • sionat ~nattments ~nd .dmini.t rativt rule. will nOI be const m l'd 10 havt rttroacti .... tlTl'el unless thei r languagt fl'quirrs this ..suit." On the otiler haM, we hi.... Brodie, II. School BoQrd of Citll of Richmond. 416 U.S. 696. 711 \ 19741. which htld that courts an "to Ipply thl' I.w in dfeet it tht timt lof theirl decision. unltss doing so would mult in ITIlIni· ftsl injustict or IMrt is Iqjislati .... his· lOT)' to the contrary." The (I"""nlh Cir. cu it in Uniled Slates u. Pep perlree AporlmerJls. 942 F.ld 1555. 1561 n.3 (11th Cir. 19'91) tndonw the Brad/ell lpp~h owr tht ~ approach. Tht result Iw bun a divtril=nct of QSt law. with iOI"I1t ases holding that tht 1991 Act is ntlWKlivt. ind wmt holding that it is not rttlOkli ..... Ruling in favor of retroactivity Irt: LaCour v. I/o"is Counll/. No. H·89·]532 (S.D. T.x. IRe. 6, 199]): Mojico u. Connell Co .. No. go·C·3821 (N.D. III. Nov. 21, 19911. Ruling in fa'IOt of pl'OlSj)tC\~ awliu· lion only iK: I'on Mf'I('I' II. 8aJJr. No. 91· 00Z7 (D.D.C. Dn:. 18. ]991); Iknsd II.

s.,,·;ct

Public Co .. No. 88·B·853 (D. Colo. DK. ]], 1991); iIlCIJoma II. """",• kim Inluno/irmal Rero«rg. I~.• No. 1:89-CV·32] (N.D. Gi. OK. 3. 1991l. In """ilion, tht EEOC issutd i PoIJC)I Cuid · lnet on D«~mbtr 27. 1991 npressing the Commission'. po.ilion thai it will not apply the d<!1l'IOIll<" pl"lWi.ioru rJ tile 1991 Act .. tfOKti .... ly 10 e"enlS O!:(U r· ringbtfort NOMmber 21. 1991. In thtc Northern Oistoo rJ AlibalTlll JudjIt Ibnr:ock Iw rultd thit tile Act Is not to bt Ipplitd mroadiv!ly. $«, ~.g.. C"rroIl D. "'8F Freighl S!I~I~m. /nc., CV·9]· H·2429·S (N. D. All. Feb. 5. 1992); Maddox II. Nrmvood Clinic. Inc.. CV·91.f1. 14.')2·S (N. Il, Ala, Ftb,~, 1992) .

IX. Conclusion \11th tht t11Ictment 01 thtc Civil Righu Act 011991. eong"5$ Itt\ more issun unresolved thin resolve<!. 11 will take lor thtc tourl.S to sort through 1M virious problems and Questions which I re o;trlain to arise under the Act. Mo~· over. tile (EDC will b< hird.premd to hand It t ht demands of alllht ntw cbimmtl, itong with COI1"Ij)binu undor tht new American ...ilh Disibililia Act. in this .... oItighi ftdt~ budgtts. • )'U1'1

r~::::::::::::::::::::::::::;

NOTICE The members of the Alabama State Bar are cordially invited to the dedication 01 the Frank M. Johnson. Jr. Federal Courthouse in Montgomery. Alabama, May 22, 1992 at 2 p.m. Special guests will include United States Supreme Court Associate Justice Anthony Kennedy and members of the United States Court of Appeals for the Eleventh Judicial Circuit.

Ioby ]992/ 203

RECENT DECISIONS Bg DAVID B. BYRNE, JR. and IVIUJUR C. SILBERNAN

SUPREME COURT OF THE UNITED STATES Child .buse.net Sldh Amendment Right of ContronUlUon 1171;/" ... Illinois 90·6113 (JiUlUlry 13. 1m). May juri .. in child ~_ cuu

coru;idu hu ,loay tvid~n«, the out-of. courl lallments made by alteged victims. wlltn t~ children ~rt ilvaillbk to t ..,ify bul tmlS~d from doing It/? The Supreme Court unilnimously

answered ~. The decision goo judg.. gmler disCKlion to prottct childrm from hMng to tHlily ilnd further limits tilt: Silth

Amendment confrontilion rights of ptrsons accused of child abuse. Writing for the Court. Chid Just;"" RrhnquiSI WeI SponWleous dtcbralions MId thoK made whilf rtetivin,g rntdical are admissibl e u exceptions to the rul. 19Iinst huJ'$Oy «ause Ihr)' are hilt!)' 10 be truslW(lrthy. "Tho$e wnf fleton

iI'.

t~t

conlribut. to lilt st."Iltmtn!s' relia· bility QnllOl be rt<aplurtd even by liter

in-coort lu\ilt1Oll}>."

.. _-"' ... .,....lIoio._ -_ ----_... . Doo ...... . ,..... J •.

0....1 Itjrno."'~.

..,... _-..,. ~. -~~

.. at .... "". , • • ...,,"'-,....

_at .... _

WllburO.

".,at "·«oo·"..."at _0"

WiggonI~~.

.... -..,,~-

_Irom ... . . .

_·._at~

204 / ~

1992

SPl'cifically. Whit e ~rguu th at his confrontation right. under the Sixth Ame!'Ol!rMnt weu ..;o(ated by the ~iJ.. sion of Ilour·~ar.old girl 's Jtat ...... nts to flmily and medical altf~nts U!"Idfr the sponUnt<)us dtcla!'3tiOl'l$ and medi· cal elimination uemjltlons to the hnrsay rule . without a finding of ulliVliWNlity. The signifi,ance of this unanimous decision is not limited to child abuu t.UU. The dtcision holds tNt the right of an KCUStd to Cl)nfront iKCUSl:n dars not require that I proucutor-befare wing hea ....y teJlimany in c.ourl--9roduct the spuku or show that Ihe spulcu is ulliVlilablf. II Is thi. "'ritu's opinion that the confrontation clause of t he Si xt h Amendment is lI<!ing efftdMIy written out of uistellCf Ind has opened Ihe door for "trial by uperu. •

Ftfth Ame...nent's . . . pro. c . . . c"u. . lICIt viol.ted by .....r •• v.rdlct In multlp .... obteet conspiracy cher9.s w ..... t ..... I, I ..sufflclent evidenc ••, to _ obteet Griffin /1, UnUtd SlalQ No. 90·6352 (Decembe r 3. 1991). Neither the F'ifth Amendment's due procell dauu nor Uniltd Stalu Suprerrw: Court prtcrdent reQuimr tNt I ~M!'31 verdict of guilty on mu ltiple-object conspi raq be let Hide merely btcauu there il insumclent tvidmc:t u to oroe of the ob;Kts. Criffin lind others wue chu,ed under 18 U.S,C. 1371 (conspiracy) to defraud an agerlql of the ftdeTlll/OWrnmen!. The unli"'ful conspincy '''is llitged to h.iVt hid two objects; (II imPiiring the dforts of the Internal Revenue Se rvice (IRS) to Ututain income lax; Ind 12) impliring the efforts of the Drua Enforumtnt Administnotion to _erUin forleitMlle aJ$tb. The evidence in troduced U Irial implkJted Criffin', co·defendants in

both conspinocy objKu. bul implicated Griffin only in the IllS object On lhat buis. Criffin moved for /I uverln,e which was denied. At the d_ of tM Irial. she propo$<fd instruction. to the effect th.il she could be convicted only if the jury found tNl she .....is lI"'lIU of tt-.. IRS obj«t of the corupirxy and further proposed s~i.;ll interrogatories alking the jury to idenHfy the object Or objects of the conspiricy of which she hid krlcMirdl/t'. The trial o:ourt denied both uquUU. The jury relurned • geM ..l ,~rdict of Quilty_ Juslice Salia delivered lilt Oi>inion of the Court.oo held l!\at neither the due proaso clMlst of the F'ifth Amendment nor Supreme Court prtctdent requires. in a frdt!'3! proueution, that a genml guilly vtrdict on a multiple-objtct conspiracy II<! Kt lJide if the evidence is inadeqUile to support conviction i5 to 00. of the objtctl. The Court rUloned that /I Ju ry is ...~U-fQuipped to determine "iltther a Pirticul.r theory is supparted by the facts. The Court observed tNt "it would gen erall y be prderlble to Qive In instruction removinll from the jury's comideTi tion In Illtrnative basls of rtli.;lbi!ity that dots not have .dequltt evidentiary support, the refUMI to do so dar. I>Ot provide IJI independent bi5is for revtmng in oIhtn.i:sr ,,,lid convic-

tion. "

SUPREME COURT OF THE ALABAMA Rac--.t,.. strik•• mandated III lu, juIry ..-etlan or .1. . Bgrd v. Siale of Alabama, lIo ...... ~. Siale of Alabama 26 ABR 747 IDecem. ber 6. 1991). The Supreme Court of AI;.boolTllgrantrd certioTlri to C(ln$idtr whethu the defendlnts Wert den ied their riQhts to a fair and imparti,1 trial by the PlW«utioo', use of peremptory

THE AUUl.\MA LAWYER

strikn to tlimin~te bluk venirt pt r· KHlI (rom the jury. and whtther Byrd. ~ white dde~nt. had w.ndina to rn..1· ttngt the pr(I$tCUtion'l .... of pmmptory Itriku_ The Supreme Court of AllINm.I answertd both questions in the affil'mlltiYt and rtYtrwd. In the trial of thue tC>nsolidattd tllStl. the Chitf Deputy Distritt Attorlit)' for Montgomery County and anoth· tr wislant used 17 of thtir 20 ptrtmptory striku to eliminate \7 of the 19 black venire memben. The defendants struck one black. thus luvina only one black venire member to serve on the jury. Prior to the Jury's being sworn. both ddendlnts lIIOIIed to qUlISh the panel on tilt grounds that the S~te's UK 01 its peremptory Itrius violated tht tuchi.., of 801.... [n ruching its decision. the supwl"Ie court found I historiCllI "pat· tern in the UK 01 peremptory strikes by the Montgomtry County Di.t rict Attorney', Office: Justice AdlIms criti· clllly noted that th. historic paUffn "i n conjunct ion in t his cast clnrly supports the defendants' contention and raise, an inftrence 01 discriminatory intent." UkewiK. Justice Adams noted tl\;lt "t he bll re al1eiations that a venin membtr [iW$ in a ' hiQh crime' ;un is alloO tonilitutionllly deficient ... Not only do such lIlItglIions Loilto demon· strllte lillY rtl~no;:e to the particular tllK sub jut/itt! but. wert they ii ... n crederoc •. they could se ...... lIS ·con...· nitnt ~[islNlltll tnoruiorming 801son~ prottction ~;nst noc~ discrimination in jury selection inlo In illusion lind the &Ison huring ;nlo an empty ce.e· mony." 26 AlIR III 759. [n thiS Ust. JuSlice Adams sets forth a "bright-line" test lIS lollows: "There· fore. I defendant hlls stllnding to rtqutst I &Ison hn.ing whent\'tr (l) the Stllte hu uerciotd peremptory challmgtlto tKlude membtn 01 a distinct noci.ll group: and (2) tht defendant rtqutsts IlICh .I huring regard[eu of whether he is II member 01 that dWinct group." Onet thi$ th ruhold r~quirt· ......,t has betn met. the ddtndint must thm pr"O'lt a priml facie Ust within the g~ntnol fnomtwork 01 &Ison. Byrd and Warner stopped ,hort 01 r~qulrlng that the racial composition 01 the tril[ ju ry actually corrrsp-ond to

THE AlABAMA LAWYER

that of tht population from which it _ dllWfl. The diYtnity 01 our socitty r~nde:T$ $uch lin endeavor loQi.tic.ally pro/'libitiW!. In other words. "Odendints Irt not mtitltd to a jury of any particulu composition.' finally, Justice /od.anI$ noted, • *. This opinion 5hould be 1W:n only III TtqIliring tMt a white defendant be lIllu..'td standing to challenge. u racilllly discriminatory, the uc[us;on 01 black juro" Ihrough the U5e 01 ptr~mptory strike."

on him if he confmtd or lu.rd on him il he did not. in an tK.lltnt opinion. Justia Maddo~ gi ... , the crimilU.l prKtitiont r a primer on voluntarintsl of confts.sion!.. It is wel1 5eltled lhat "utrajudicill confessions art pri .... fKie invo[untlry and inlldmiuible. and W t the burden is on tilt Stale 10 pr"O'lt that the confts-sion Will m.Idt voluntarily." The TUKlning behind the ~xdusion of conltUions obtained by the promi5I' 01, moard or by a threat wos stated in

w/l"d/ .. Siole. 551 So.2d 1126, I [28 (A1a.Crim.App. 1989l. as follows:

Volunt.rI..... o' conf••• ion prl .... r on O,,_chl"9 Mal/h,M's fl. SIDlt 26 ABR 1770 IFebrwory 7. 1992). "'atthtwl ple~ iuilty to robbery. burtlary Ind theft. Prior to tilt miry 01 his plea, Matthews IIlOIIed to SUpprl'U attain incriminat· -

ing iUtements ~ to po[ke offICers and thl inveltigator lor the dist rict at tornlY's office. At the suppression huring. the rK(Ord v.o-... that tilt 101, lowing Itatlments were made to Matthews before he mad. his incrimi· fIlIting statementl: (I) "There'I' possibility that being an lIccompli(c and not actually doing tilt dttd. you miQhI iet boot camp.. (2) "Let me aplain somtthi.., to YOU. I'm not tilt IlWUIlgilor for this depart......,t. I'm the iO\'tstiptor for the district allomt)'. I Qn l1li Ndt and tell the district lIttomty MlItthews cOOptnottd with me or I till go back and tell the district .llIomty thit Mat\htw$ did not COOptTll!t with me. That"s right. I ......'t tNt option." (3) ·We might cut YOU.l dul." (4) ·You'vt IlOl an OIIPOrtunity right hert ... to tell uS what you kn ow . 11 could make I 101 of dillertnce for you." (5) "You know thert'S two ways to go about things. either you 110 alx>ut it and you don't cooperate and the judg_ knaws tMI I'OU didn't and tilt district altomty k.- I'OU didn·t. 0. you tum 1T0und Ind you did cooperate. you

...

The trill[ court denied Matthews' motion to IUppl'Ui. The court 01 crimi· nal appull confirmed. On certiorllri. Matthews argued thit his confusion _ involuntary bec.aU5e he had given the statements under the imprUlion Il\;It the State w<!uld go easy

Tht abhomnce 01 sodtty to the UK 0/ invo[untllry confusions doe, not turn alone On their inherent untrultW<lrthineu. 11 iI[SO turnl on Ihe deep-rooted letling that lilt poIiu must obey tht IlIw whik tnforo;:ing the taw; lhat in the end Iile and libe rty can be u much endangered from iII.pJ methods used to convict lime lhought to be criminals all from actual criminal. them5e1,'t1.

In the opinion. Justice Maddox nprt$$lyadopts the thr ... Ui/l,..,// fK' 10rl which are to be con.idored in dttennin;.., whtther lilt State has ..... tlined itl burden of proving thlt II dtftn~nrs "consent" WQ 'o'OIuntary. In order to mett thit burden under Uil,

,,..

First. thert must be c1elr and positiYt tutimony that the connn t wu unequil'OClll and specific. Second. the go"ernment must ntablish that Ih. o;:onlcnt WU Qiven without du.ess 0. coe rcion. ~·inal1y. we tVll luat. tho51' first tw<! 't.l~rds with the traditional indulgeroce of the courts 19airl$! II prtlumption 01 wli .... of constitutionill riQhts. 26 AlIR at 1774. Justic. Maddox. in dealini with the conflictina w.ttmtnts 01 Matthews and tht offiars as to ",hat "'U uid, rtlitd upon the lupreme cou rt', dt<:ision in & Par le

JoItnwn. 522 So2d 234. 237

\ALL (988) III follows: • , .• in order to be admiuibk II confeuion muSI be fr... Ind voluntary Ind cannot be the rnult 01 any dir_ct or implied promises.lIowever slight.' Based upon the I.ullre/l standards,

May 1992 / 205

t~ supremr court coocludtd that t~ statements "engineered and eocour.aged" Matthews to think that he would be mOrt favorably dult with if h. lwooldl cool"s. In ~I'$ing the cooviction. JU$\M:t MadcIoJ; critic.ally oottd: The sl.'Ittmenu midt to Matthew. io this cut Ire primr .umplts of WIt.Intnu that tntice a IUSP«l into miking a conf.ui()fl. Matthew's ioc:riminating stat.mtnU w.n not t rustwor t hy. because the stat.m.nts to him strongly sugg"ttd lhat il would be difficult for him if h. did not comt forward with information but would be euitr for him if he did. U ABH at 1776.

BANKRUPTCY Cont ••1 of dIK ....,....blltty In con ... rt~ Chapt., 11 c . . . . &mk 01 Louiskmo ~. f'Q,,/ookh, 51h Circuit Court of Appeals. January 30. 1m, n Il.C.O. S89; _ _ F.2d ~ In tht original Chapter II CUt, the plan of Ttorganlution WH confirmed, but two yun aftu confi rmation th. d.btor stoppfd rmking paym.nts and 1M cut tOrl\Itrttd to I Chapter 7liqui· dation. The Blink of Louisiana then cont.st.d tilt diKhugubility of its debt. The Fifth Circuit held that.il IIKptlition cm!ilo, IO'U bound by tilt confirmation order in Ih. Chipler 11. which prMnl.d it from objtcting 10 dischargt on grounds which oo::urred prior 10 confirmation. for the rtawn that this would be rajudicolo. However, if the debt lTOft Iflff confirmation. and thn. wtr' pOst-confi rln/ltion acts

Richard Wilson & Associates Reg istered Pro fession al Co urt Reporters 17 Mildred Street Montgomery, Alabolma 36t04

264-6433 206 / Ml1yl992

which would mttt the Bankruptcy COOt's ~uirtmrnts for non-<lischaTllt· ability. thto a cm!itor could Ittempt to moil iIKlf aI 1M ~mtdits PnMdtd by lhe &nkruptcy COOt undtr U523 and n7. Such a cm!itor mU$\ ~ mtnd· td MW ""I~ lftu f;On/lnTUl\ion 10 tho dtbtor W in such a sitUition. would lit tntitltd to contnt post·confirmation

iClions. Oblill.tlon 01 Ch.pt., 11 liqul.

uti.,. tN.t •• to til. Income .nd p.y I ••• •

t . . . . .turn s

;;;;"'=

I/~od/ QIrp. v. Smith . • SupCt. ,60LW4159 (FtbNllry 25. lmf. JUSli«; Thomas spokt; for tht U.S. Sup...,.,. Court which WIlnimous· Iy ~rstd tilt Eltwnth Circuirs ruling that i tiquidating trustee undtr II con· firmtd plifl aI rtOrpniution was rool rtspGn.iblt for filing incomt tu returns for lIifolillttd corporations Ind th. individual debtor. or for the p,ay. mtnt of Wts due from sale of proper· ties. In rtvcrting tilt Ele~nlh Cif(:uit. the Court llatn that IRC §WI2{bl(3f rtQuirtl the trustu to In/I~ tht return. due to Ih. fact thlt II such trUlt,. QUlhfits u an usignee of the property. thert it an obliption to pay taxts d~ on tilt indMduil debtor's &SItts by rell· JOI'I aliKe §6CH2(b)(4) ~uiring a fiduciary of a trust to do so. Thit cut is im~t in anothtr ruptd in that it was held that although 1M tIOWmrntnt did not objtct to 1M Chapter II plan. this was roo ucuse for 1M trustttS not to fulfill 1M dutin as mentioned ilbovt. this 10. t~tn t hou gh fl1 4 1 of the Bankruptcy Code statu thaI cffditors Ind the d.btor art bound by the proo.is;on of a confirm.d pl~n. H(l'WtWr . it is impo rtant to nolt that t he ruling ~pplitd to pOO-coofirmation taxts. Tht opinion in the concluding parllgraph conlllined 1M following: E.... n If 11141(1) binds crtditol'$ of tilt corporatt and ind;~idulli d.btGTS with ruptd to clainu that lIfOSI: IxfGrt conIinTUltion. "'" do not Set '"-' it Qrl bind the United 5tatu Or any other creditor with rtsptcI. to posl-oonfirmation c!ainu. Comment: Thus. although t~ inftr. eoct it tlut prt.petition taxes not men· tiontd In the plan might lit barrtd. this Question illtill I.ft Optn.

Po.l_petition tr.ns f_ of funds to p.y p"'peUUon t ••e. U.s. v. "MJic V;II~. Inc.. " " ' " '

SupCt.

(1m); 60

LW 4163.

The SiIth Circuit had htld that whrrtll debtor hId po.lI·petilion trllnslurtd funds to tilt IRS in p;oymtnt of his 01011 individUlI w liability. lhe trusttt "'<IS tntitlfl! to a rtfund of this by reuon of irs bting a pOlI·petition tllnsactiGn covertd by 1549 of tht Bankruptcy Code. JUltlce 5ca)i". author of the moljority opinion. staled that there w"," no clur ltatut. placing the monelar)' liability upon the Unittd Silltn. Ihat Itoo which conctms sow.. ign immu· nity dou not cow. tM fa(tUlI situa· tion. Ind. tlltrdon. the IRS "'as not ordtrtd 10 disiollft the funds. He said tMt a wai~r of _'tr~ign immunity must be coruidtrtd llrictly. not libe""· Iy. lind be un.quivoully uprused. Com .... nt: Thit is lInothtr indication of tho! U.S. Supr~mt Court protecting the tIOWmmtnt on WI millers.. App,ar(nl· !y. in 1M ofttn.ustd wordl:. it "dll take an act of Congr.ss to clunge this altitude.

~tlU_ IRS I.vy on rece i.. abl ••, held vuln • •• bl. Unilm Stutu 01Atneria> u. Challenge Air Inttmtllionu!. Inc.• 22 B.C.D. 89'2 P2d . • (I i Cir. January 30. 1992f. Tht Elrvmth Circuit. ~lying on tilt Unilm Stu/es v. Whiling Pools. 103 S.CL Z309 (l983} held thai the prt·ptlition It"}' on obliQillions owt4 by Amtrican ElqlftSS to the dl:btor did not prtvtnt ~ debtor from rtc.mn, I ~fund. The IRS ~ riud that it had corutructi~ possession of tho fund lIflu tht \rry and be/Ort th. CMpter 11 ming. The Eltvtnth Circuit stal.d that t~ bankrupt tstate ioc:ludts PrGperty Hi~.d by a Hcu r,d credilor btfore tht filing of th~ peti l ion. and tlut 1S42lal rnandltts lhe tu~r to I~ trusteu of property allh. utat•. Th. Unil~d Slatts tritd to show Ihllt Ihis Cut WllS dilffnnt from Whiling Pools as l4'hilirlg Pools was bastd upon a levy on t.angibl. property, whitt this was on c.a.sh fquivll~nt prO!)trty. The go.nnmenl Iiso ,iltd other usu which the Elt~nth Circuit htld ",..,r. not applicable. wtrt distinguislWlle. Or had be.n ovtrrultd by tM 11lliliTl9 cast. Co m mont : It r(mainl to bt s.en

TH~:

ALABAMA LAWYER

whelher the IRS is going 10 lake Ihis UM up a!so in tht belid tl\llt it\w a mom friendly Suprtmt Coort SoulhTrwl Mohik Snvica. f~. D. Scolli<l D. Engtllurl and S4ndra D.

Engelbert. 1992 WL 18326. USOC Northtm Districl d Abba"",. "''''tern Division (llnuu)' 21. 1992). In an opinion of oVer 3' pagel. Judge Acker mltrstd ~ ",nkruplcy Court in I UM involving a mobile home in which Appellant Sou thTruhl h~d • ,uurity Intern!. The Bankruptcy Court h.d allo....ed Iht debtor time 10 cure 1 pOSlpttition default. Judge Acktr ruled Il\IIt by rusons of the ficts. the mobile home qUllified as , reside IKe. Other conclusions 0( law IS dtlermined by Judge Acker Wert: (I) the filing of nolla 01 appul divests the Bankruptcy Court d jurisdiction. thU$ prtlltnting th. Imendlng of Iny pOrtion of the Bankruptcy Coorfl procftding; (2) the automatk Ibyol 1362 appliH to collection d pOSto(:onflr""'tion pa)'nwnts on any debt whether or 1101 mentioned in the plan (3) 11 U.S ,C. iI329(I) expr~..· I), allows the Trustt. as ,,<til as a debtor to m\uut I modification of. Chapler 13 claim: and (4) on Ihe dispO,itive qutStion in this UM. the Coort ru~ in a conflTr'Tltd Cl\llpttT 13 cue. the dtbtor ClInoot indude In an amended plan. ~II for I pait-petition ,mearage on the lkbtor'l principii rniden«. iUId Il\IIt when JUch ilalltmpted. it i. an abuK 01 discrtlion to deny the s«ured lender its request for relief from lilt

,..,.

Fall,,", of admlnl.trative elalmant to name tru.tee a . part, ,endered de fault Judge. ment unenforc.able Bellini ImflOlts II. Mason and Owm /,jnes. 944 ".Zd 199 (41h Cir. 1991). Muon and ~ fi~ a Chapter II peti. lion on March 2'9. 1984. Thereafter. Bellini tT\IIIItd the debtor 10 Irar\SIlOI'I freighl which was dtb.yed in tramit. A trultt. wlS appointed in Ooctmbtr 1984. In June 1985. Bellini sued Ihe debtor Wilhout naming the IruSlee. IItllini ltCurtd i dtfault judgtmml. and ~ltnough "'a.I ,ware 01 the bankruplcy. did not file a proof of cI'im. In March 1986. a plan of reorgan i~lioo "'.. ron·

firmed. When Btllini attempted to enforce tht judgement through slite court procell. the Bankruplcy Court enjoined IItllini IJld further disillowtd the d,;m which IItllini then I1ttmClttd 10 lilt. TIlt Dislricl Court rewrvd the Bank,uptcy COU'I. Ilaling thai Ih. lrustft was not a "«usary party. The Fourth Circuit. on aweat. held thaI the iUlOmitk Iby did not apply to IItllini's suinQ on a post·petilion breach of contrlCt. bullNI Bellini hMI to obtain relief from IllY 10 enforce collection in any aclion 10 proewl against Ih~ alWls of the tltatt_ Thul. lhe Bankruptcy Court wa.l held 10 hlOe been correCI in 001 ilkM1na: a cllim based IOItIy 00 a judgemmt Ulltnlorceablt 19Iinst lhe emit.

Statute .lIow. tru.tee two , .... 10 P""- ~tilion cl.lm. not .ppllc.ble 10 cl.lm••,I.lng batw.en Chlttp-

1. ,,1 filing. and conversion to Chapt.r 7 Independenl Fir&/ Anuranct Ca" """der, 7'rw1N!. 948 F.2d 9as (5th Cir, 199U. More lhan a yur after the Chap. ler 11 was filed. lilt deblor's how.e was dfltroytd b)' fire. The insurance policy contlined • Ont·)'tlr limitalion period

for laking legal aclion. The case was cOn\<trled approximately Ihret weeks alter the Ii~. and a lruslft was oppoinled first IS inlerim and Iller l.5 CUt lrusln. The lrusln filed lu;1 almosl two )'tlrs from awointmtnt. The Dis· Irict C(lurl grlnted sumrru.ry judge. ment 19Iinsl the truslft on the gn.>Und that the UM was barred. The "ifth Circuil affi rmed. slilinil th,t H08(a) Itngthtru the tirTM! of bringin~ suil only if the period had nOI expired p" -I'di. tion. It held thaI il "",de no difference here lhal the Individual deblor w.. "in poueuion" a portion of Ihe one-)'tar pOlicy limilllion. The lrustee furthtr argued thai tl08(I, when vi ....-m in lhe conlnl 01 i:M.8 u • whoIt, 'Wilts only 10 cllims Ijpinst the estatt and 10 tht:tow in behalf of 1M tllilt. Howrnr. tht Court Italtd Ihat Blnkruptcy Code 1348(1). which i$ the $teIion on CQrI'.'!'r· sion. rtveall tIw. {I). (b) IJld (c) do not dislinlluislt belwnn claims againsl or on bel\lll( 01 tht HUite. but thall348(d) """re»ly providts /(Ir special treatrTM!nl of only lho$e Cliinu arising ogairut the utate btfoTt conV>enion 10 Chapter 7. Thul. lhe conV>enlon did nOI change the \late from lhal 01 \Itt original occur· renct. and. Ihtrdore. the "lion Wa.l not filed in lime. •

BAR DIRECTORIES Ext ra copies are $1 5 each. Send checks or mon ey o rders to: Alabama Bar Directory P.O. Box 4156 Montgomery, Al 36101 Miy 19921 207

Consultant's Comer The follou;ing is a rwiew of Imd rommenlO1}l on 1m office outomalion iss"" /hal ha$ rurrrni imporlanCf! 10 /"" /"!Ial romm,milv. prepared bilihe office automation rom;ullanl 10 Ih~ sla/e bar. Paul lk>mslein. who uieu's are not nec<!SStlri1lllhaw of Ihe stale bar. This ~ the 251h article in our "0:m5ullrml"s wmer' series. We would like /0 hear from gOlI, bolh in ailiqUl! of the arlide u;rillm ami fOr suggestions of topics ror fulure ar/icles.

Sole pr.ctltloner check-up Sol. practice is the only segment orthe I'ri"at~ sector that is growing, albeit slowly. The reasons are \,a.1<'<1. from the desire to be you. 0\>11 00ss, to the reality that no One else wants you

due to the current economic outlook. Regardless of the reason. sole practitioners have special problems. in particular, promabilily technology and business development. The$< needs haw 1(1 be dealt with and the $<')Ie practitioner check-up

ma,y be of help.

Proflt.bUlly When,vtr laW)"'rs ,..,tum from g~theri ngs; of th~ir peeTl, be the')' CLE semina .., bar conventions Or law school reunion,. the')' often fall into a "blue funk." convinced the')' are the least productive of th~ir colleagues. The re!llity is thaI laW)"'rs often ~n8a8e in creal ive hypt rbQl. rtgarding thoi r ~arnin8' and prospects. In a word. the')' liel The r.rst step in assessing sole praclice profitabi li ty is to know what is reasonably achievable. consistent with a dec.nt lifestyle. I recommend two .tati~li cs that are fai r predictors of r.nancial success in .ole practice: utilization and realization. Utilization is the ratio of hours bi lled to hours worked. For .ole pracliti oners. it should be at leasl 75 percent. Real; ~ation is the ratio of effective billing rale to budgeted (or stat~d) billing rate, effecti,·. billing ral. itself a ratio of fe. income div ided by hours bi ll ed. It should be "ory near 90 percent. In start-up situations, 1 advise .ole praclitioners to use a pro forma budgel of 55 percent .~penses, 5 percenl reserve and 4(1 perc.nt disl ribulable incom., provided you gro .. aboul $100 ,000. This is the ke y. (By the ,,'ay. grossing SIOO.OOO requires you to bill the equivalent of 1,200 hours al an effective rale of SS(I.) [I there is a secret 10 success in .ole practice, it is Ih(>rO}ugh, ~rupulous. brutally honest t ime-

Expert Assis tanc e In Fire Dcpan mem Rela ted Lawsui ts

FIRE SERVICE CONSULTING, INC. 5622 Lee Road 66 Auburn, Alabama 36830 Ellis Mitc hel! 2(18 1 May 1992

(205 ) 8 26 -3098

keeping. and that means all your time. both billable and nonbillable, Technology Many $Ole practitioners are mislead by colleagues (or sales· peoplel into thinking that t. chnology. in itself, is vital to success. It is an ingredient. but by no means the essern:. of successful practice. (Reread the last sent~nce of Ih~ previous section.1 True, word processin~ is a nec~ssary land by now roulin.1 eomponenl of a $<)10 office : so are a working phone and a copy machine. Beyond that. ho-.~1:r. it gets optional. For e.ample, automated billing is 110 panacea . pa"icularly if your manual billing system is a mus. A fax machine is a n.c~ssity for 50""'. a con .... ni.n« for .orne and a status symbol for others. Dictation equ ipment of 50"'" 50" is required . The point of this is not to denigrate t~chnology as such, far from it, but to put it into perspecti ..... The importanct oftochnology in sole practices is often overrated. True. it i. important. but generally not that important. Busine.s de velopment !f lechnology is OV<.'rrated in importarn:e for $Ole practition.rs. Ihen busine.. devtlopmenl is badly und. rrated. It is critical to a viable $Ole pract ice. as it is to any other practice. but perhaps mOre so. Notice the operative word · viable_" True. Ihere are solo praclices with no awareness of the need for business develop"",nl, but I ha,'e n"VI'r "ocounltred a viable on. without an acute aw" en'" of the i.. ue. Business development is not s;'nonymous wilh lel .... ision ad,-er1;sing and splashy yellow page ads. It ;5 concerned with making sure that your clients know all the services you are competent to perfonn. Many lay people perceive lawyers as they do doctors. specialists in one practice area or another. This may w'l:lI be lrue from $Orne 501os. Urban 5OIos generally ought to specialize in a singl. area. Rural .olos. on the other hand, n",d to g.neralize their practices. as their rural medical counterparts do. What are the implications? I'or both rural and urban 50105 it i5 vital that potential clients in your service area know what it is you do. This can be listings in the general or prxtice-spedfic section of lhe local yellow pages, leiters to other lawyers irwil_ ing reciprocal referrals. or a brochure or pamphlet of 50me 5011. Finally, remember to lhank thoii' who rtfer cl ients to you. !n summary. $Ole pract itioners have special problems and special opportunities, A sole practice check-up may help you to identify both. • THt: AUJIAMA

~\\lYf.R

Request for Consulting Services Office Automation Consulting Program SCHEDULE OF FEES, n:IlMS AND CONDITIONS

Firm Si,t·

Dura1ion··

,'" 2". 3". 4". 5".

,., 45

8·10

Over 10

Avg. (;(lsllll"')""

5500.00 MOO.OO 1333.00

S 500.00

$1,000.00 $1,500.00 $2,000.00 $1.500.00

$307,00 $177,01)

$250.00

"Number of Ia"'Y<" only l<xciuding of coorlMf)

"Duration ..

f." to III< pl>.\ln..t (Kl·pr<mi.. limo .nd d<>o. not include lime

.~nt by tho comoltan! in his ....T1 oif.ct "'hil. pr""r;ng documtntation :and Tt<ommo .....tions.

-------------------------------------------------------------------REQUEST FOR CONSULTING SERVICES OFFICE AUTOMATION CONSULTING PROGRAI'1 SPOn ....... d by AJab,tma Stale Bar THE FIRM

nnm~"'~m<~~~~~~~~~~~~~~~~~~~~~~~~~~~::~~~~~~~~~~~

Address

City Contact person Number of l~w)..,1'$ _ _

paralegab _ _

secrdanes

Telephone ~

ZIP Title others _ _

Offices in othucities?' _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ _ _ _ __ _ _ _ _ _ _ __

rrs PRACTICE Practice Areas (") Litigation

~larilime

Corporate

Real Estate

Colltdions

Esl2lte Planning

...""

Banking

Number of client.'; handled annually

Number of matters handled annually

Number of maUers pfl'stnliy (lpen _ _ _ _ __ _ H()W (lften dO)l<lu bill?

EQUJPMENT

equi~m~~~'~r;~'~""f'~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

Data proc«sing e~uipment (if any) Dictation equipment lif an~) Word procusing eO\ll' equipment (if any) Telep!tom equipment

PROGRAM % of emphasis desired

Admin.Audit (I) WIE

DP Needs Analysis'_ _ __

WP NeedsAnalysis (2) WIE

Mail this request for strvict to the Alabama State Bar for scheduling. Send to the attention of Margaret Boone. executi .... assistant, Alabama Stat. Bar. P.O. Box 671. Montgomery, Alabama 36101. May 19921 2(19

C·L·E OPPORTUNITIES The fQl./(xdnV programs haw bee>! apPl'OIX!d bV the A/aroma Mandatory Conlinu;ngU>gal Education CommisJion for CI.E credil. For informu/ion Yeg<1rding alher available approwd programs, con/oct Diane (1/ (205) 269· 1515. am/a complete eLf: calendar will be mailed /0 !JOU.

\i~loon.

administrative assistant fOr pro-

grams,

JUNE 1 S Frida, ALABAMA SALES Al'l; D USE TAX Montgomery National Bu.in... lrutitutt. Inc.

Credits: 6.0

Cost; SIOS

(?15)B35·S525

2 Tuesday WORKERS COMPENSATION IN ALABAJI\A

Illrmingnam Notional Business Institute. Inc. Credits: 6.0 Cost$]og (7151835-8525

16·17 .'IU1" ICII'AL COURTS CLERKS MOD MAGISTRAn:s CO~' I'ERESCE CulfShores Un; ...... ity of Alabama

C,edits: 3.4

Cost: S90

(205) 348·9066

19 Tuesday ALARA.'IA SALES A.'I;O USE TAX Birmingham

Cost: $108

28 Thursday

E1'.'V1 ROX,\IEII,"Y ALLY DISTRE SS ED PROPERTI ES IX ALABA..'IA

Birmingham. Parliament House National Business Institute,lnc. Credits: 6.0

Cost; $108

(715) 835-8525

29 Friday E1<o'Vl ROS.'IENTALLY DI STRE SSED PROPERTIES IN ALABAJI\A

Huntsville. University Inn National Business Institute. Inc. C~dits; 6.0 Cost: SI08 (7 15) 835-8525 210 Hlay 1992

Huntsville National Business Institute. Inc. Credits; 6.0 COSI SIOS (7]51835-1)525

...

TAX INSTITUTE

National B... ine",lnshtule, Inc.

Credits: 6.0 1715)835·8525

3 Wednesday WORKERS COMPENSATI ON IN ALABA.'IlA

Orange lkach Perdido Hillon Alabama Bar Inslitute for CLE Credits: 9.0 (8001627.6514

.., OIVORCE OX TIlE BEACt! Vl

Culf Sho..s. Culf State Park Alabama State Bar ]>amily law Section (205) 930·9000

18 Thursda, COLL ECT IXC JUDGME~'TS IN ALABA.'IlA

Birmingham National Business Institute. lne. Credits: 6.0 Cost SIOS (715) 835·8525

19 Frida, COLLECTING JUOCM E~'TS IN ALABAt·tA

Huntsville National Business Institute. Inc. Credits: 6.0 Cost SIOS (7]5)835-8525

JULY 1 Wednesday LOAN COLLECTI O~' LI T]GATtOS IN ALABA.'IlA

Mooile Nalional Business Inslitule. Inc. Credits: 6.0 Cost SIOS (7]51835·8525 2 Thursday LOAll1 COLLECTIO~' LITIGATION IN ALABA.'IlA

Montgomery NaHonal Business Institute. Inc. C..dits: 6.0 COit SlO8 (715) 835·8525 16-18 A.\'toiUAL MEETIXC

Birmingham. Wynfrey Hotel Alabama State Bar 1205) 269·1515 21 Tuesda, CONSTRUCTION LAW IN A!.AllAMA

Birmingham National Billiness Institute. Inc. C..dits; 6.0 Co.st SlO8 (715) 835·8525 22 Wednesday CONSTRUCTI O~'

LAW IN AlABAMA

lIuntsvHle National Business Institute. Jnc. C~dits: 6.0 CO!t S\08 1715)835--8525 THIe: ALABAMA LAWYER

CONTINUING LEGAL EDUCATION FACTS -

1991

In 1991. the M~ndatory Continuing Ltgal Eduaolion CornmiMion .....~ J lotll of 2.9-49 progrllms Heking elf:

Iccrellill,ion, Of this nom~r. 2.866 wtft aa:rtdittd.. Of lhe 2.949 progl"lmS offend. 420 wert offered by in -sLIt.

0_-

spon5OfS luld 2,529oot..o(-statt ~ 14 pt.ctnt ~ 86 percent, 'tsptttively.

0 -

0 _ D_ ___

0_.-.0_-

WI. "X in.sL1t. spOniOl'S accounted for 49.4 percent of the totlt elE hours atttndtd by stat. bar mtmbtrs in 1991. Figure 1 indicates the ttn 10\'1 subject INttt. uu. 01 eu: coorHS bawd on the 101,,1 numbu of courus offend whilt figurl 2 shows the top ttn lubj«t mIne. artU ~d On 1;n,'Y" IItttndin« 1lootS. Ow. 47 ptrunt 011.11 CU: p<Ogr;om5 xcrtdittd In ]991 wt"' Mid in tho 1m cities in Fil/Un 3.

00__-

!'inllly, 6,558 or 99 pt.ctnt of tht subject 10 the elE rule. and •• guillian. complied wilh them in a timely fashion or filw I derocienC» plan 11I~n

as permiUW undtr Rule 6 of the rules and rcgu lUi ont. Only S9 lawyers' narnu weu u rtirow to the Disciplinary Commission for noncompliuou.

:::-::":-1

--, , 0 _0_0 -

00 -_ _

........ .. • •

•

L--''''~''

THE ALADANA LAIWER

-- -

May 1992/ 211

NO 'I' I (~

The following is a memorandum from Leslie C. Johnson, administrative director of courts, regarding

recent changes 10 Rules 4 and 7, Alabama Rules of Criminal Procedure. Also included are copies of the Alabama Supreme Court's orders amending these rules. TO:

Presiding Circuit Judges

Circuit Clerks Municipal Judges

r.l unicipal Clerks FROM:

Leslie G. Johnson Administrative Director of Courts

RE:

Changes to Rules 4 and 7, Alabama Rul es of Criminal Procedure

Enclosed arc copies of two orders, dated March 3, 1992, and effective the same

da~,

whereby the Supreme

Court of Alabama amended Rules 4 and 7, Alabama Rules of Criminal Procedure. Particularl y with regard to Rule 7. there were extensive changes. incl uding those summarized below: however.

}'1)U

should carefully

review the amended rules in their entirety.

Rule 4

By memorandum. dated May 15. 1991. ....-e ad~ised you of the decision of the U.s. Supr~m~ Court. in Ri''<!1"sid~ '0. Jlfcwughli". III S.Ct. 1661 IMay 13. 1991). The holding in the Ri,=ide CaS!' requires that probable caUS<! hearings. in connection with u..,.mml· less .....Is. he held within 48 hours. Accordingly. Rule 4.3 (Procedure Upon Arrest) has heen amended to require that probable owe hearing. (in warrantless arrest cases where a defendanl is in jail) he held within 48 hour •. The 72·hourlime limit for iltilial appearance h'aring re mains unchanged. Finally. Rule 4.3 (a) (1) (iii) was am.nded to no longer require Ih. defendant to he brought before the magistrate for the probable cause hearing because there was no constitutional or statutoI)' requirement to do

". Ru le 7 A:;

• • • •

• • •

• •

not.d above. there w€fe •• tensivt changes to Ihis rule. including, adding definitions for 'Professional Surety Company" and ·Professional Bail Company' (M' p. 3. Rule 7.1 (0 &. (g)). requiring a Professional Surety Company to deposit. among other requirements. a 'Certificate of Authority" Or "Certificate of Compliance" from the Department of Imurance (see p. 3. subparagraph (I)). requiring a Professional Bail Company to deposit . among other requirements . a corporate surely bond or escrow agrtement in the amount of $25.000 (see p. 5. subparagraph (I)). the Suarantee of pa}ment. whether by a Professional Surety Company or by a Professional Bail Company, is INr cot",l!! and a company is hable for the full amount of any bond(.) signW. r~gardle~ of other rtqui .. ments wnieh must he met pursuant to Rule 7. e.g .. depos it of $2S.()()() corporate surety bond. annual authorization of presiding circuit judge and approval of the corporate surety bonds or eSCrow agreements by the presid· ing circuit judge art rtquirtd. applies to municipal courts. there is a 6Q·day ·pnase·in" ~riod for Professional Bail Companie. whose corporate surety bonds and escro....· agreements wert previowly apPfO\."I'd by the presiding circuit judge which are not in compliance with Rule 7. as amended. On page 7. subpara, graph (m).lines 8 and 9. the date "December I. 1992" appears to be a typographical error and apparently should be "December I. 1991; as it is on line IS; and there is a 6Q·day "phase·in" period for Profession;ll Surely Companies who ha .... been issued an "order of authorization" which is not in compliance with the rule. as amended. The forfeiture procedurt in Rule 7.6(dJ has heen changed. Now. there is no time limit within which a "show cau~" hearing must he held. A written response 10 a sho....· cau~ notice is required within 28 days of service of the notice (p. 14). the Appendix contains a SIImple "Corporate Surety Bond" and "Escrow Agreement"· (pp. 18 and 18. respecli .... ly).

212 / Mayl992

THE ALABA..'\A I..\WYER

THE STATE OF ALABAr-tA JUDICIAL DEPARTr.1ENT IN THE SUPREr.1 E COURT OF AI..A1W-lA Much 3, 1992

ORDER IT IS ORDERED that Nu ll' 4,3(a}(n, Alabama Rutu of Criminal ProuduTe, be, and it hueby is, amend«! to read a..\ follows' "RULE 4.3 PROCEDURE UPON ARREST M(I) 0.. Arrut Without . Wlmn t "(I) A pu~ .rmtfd ",thout I .....rnnl:

"OJ May lit cilfd by a law mforcemonl off"lCU to~r either al a ~ififd limo iII!d p~ or al ~ limt and p~ u he or she wll lit su~11y notlfifd 0( and ~ lit nltawd: or "WI MOlY be releasfd by I law enforcement officer upon oecution 0( I secured 'ppt,lrelnee bond in m In'I()I.aIIl ~t attordi~ to the ..,heduh' roRlainfd in Rute 2, A.RJA, and diredfd to Ippelr tither III specified limt Ind plitt Or It such limt and pLlu u he or she wll lit subsequenlly notifird 0(; or "(jill Shall be afforded an opportunity to makt bail In accordana with Rule 4.3(b)(31 and u. A judge or magiltl'lte in the county of arrell. shall determine whether probable cauK ui.lll to believt that tilt defendant eommll\td the cru.'lled offenK, by tltllmininQ lny necasal)' witnesses ;n accordance with the procedures for makinQ I probable cause determination provided in Rule 2.4, [f the judge or magistrate finds tlllt there;s probable caUK for the arrest oflhe p"rron, l comptaint shall pr()mptly be prepared, r.ltd, and stMd on the defendant. and the judge or magislrate shall proceed as provided In Rule U for inil;';'l a~al'l1\Ce, If a probab le caust determination il not made by a judge or magistrate without undue delay, and In no ~nl IlltT tllln forty-eight (48) hours .ftu arrest. then, unlw the offense for which the ptTSOfl Will .rrestfd is not I ~lablt offense, the person shall be relt~ upon euculion d m Ippelrance bond in the amount of the minimum bond KI in Rule 2. A.RJA.aoo Wll be dinctfd to awo. tither at I specififd limt and place or at lUth limo)nr.\ pIKe as he or she wll be l ublequently notiflfd of. "(Amended efftct~ March 3. 1992.)" IT IS fURTHER ORO£RED lhat this ~nr.\mtflt shall be efftct~ immrdiately. Itornsby, CJ" aodAimon, Shores. Houston, Slugall. Kmnedy. loo Ingram, JJ .. concur. M~dOl<, J" COIICUrs Ipeci~lIy. MADDOX. J.. CONCUNRING SPECIALLY. I concur with the amendmtnl to Nule 4.3( I) to changt tilt 72·hou. provision 10 48 hours, but r would lIM) change the hour provision in Rule 4.3(b),

n·

I. Robert C. tsdale. IS Cltri< cJ the s..premt Court cJ AbbmIl, do herdly cerlily thai the It>«going is I full. true and comet CGPl' of the instrumrnt(s] herewilh stI out IS wnr lpIItoOli.] of ru:ord in said Court. Wltnus my hand this 3Td daydM.arch 1992.

Clerk. Supreme Court of Alabama

THE ALABAMA LAWYER

Mayl9921 2 tJ

THE STATE OF ALABAMA JUDICIAL DEPARn,lENT IN THE SUPREME COURT OF ALABAMA March 3, 1992

ORDER IT IS ORD£R£D that Rule 7, Alabama Rules of Criminal procedure, be, and it hereby is, amended to IUd in accordance with the ~ppendix ~ttachw hereto. IT IS I'lJRTHER ORDERED that this amendment.hall be effectiw immediately.

Hornsby, C.J .. and Maddox, Almon. Shores, Adams, Houston, Steaga1t. Kennedy. and Ingram, JJ .. concur. I, Robert G. EMlale, iIS Clerk of the Supreme Court of A1abamo. do hOTeby COT· tify that the foregoing i. a full, true and correct copy of the in>trument!s) he..,.,ith sel OUI as same appear!s} of record in said Court. Witntss my hand thi. 3rd dily of Mar<:h 1992.

Clerk, Supreme Court of Alabama

A.PIJENDIX RULE 7. RELEASE. Rul. 7.1 DefiniHont and R«jui"menl, !al p.,."n.1 Ruognizance A reluse on defendant's ""rsona] recognizance" mea", .. lease without any condition of an undertaking Ttlating 10. Or a de]l'OSil of, security. (bl Appean nce Bond An "appearanco bond" i. an undertaking 10 pay to Ihe clerk of lhe circuit. di.trict, Or municipal court, for the use of the Siale of Alabama or the municipality, a specified sum of money upon Ihe failur. of a person releaSl'd to comply with il> conditio",.

(c) Se<um Appelnnco Bond A "secured appe~r~nce bond" is an appearance bond ..curtd by de]l'OSit with the clerk of "curity equal to the full amount thereof. (d) Security ·Security" is =h, cert ified funds. Or a sure ly'. undertaking, deposited with Ihe clerk t~ secure an appear· ance bond. (e) Surety A "surety' is someone (olher lhan the person releaSl'd) who uecut" an appearance bond and binds himself to pay its amount. if the person releilSl'd fails to comply with the conditions. A surety. except one qualified as a professional bondsman, profeMinnal surety company, Or profeMiornl ball company, shall file with an appearance bond an affidavit Or certification, under penalties of perjury,

214 1 May 1992

(II Stating that the surety is not ~n attorney. judicial official, or person autho· rized to !;Ike bail (or if the .urety is an attorney, judicial official, Or person authorized to take bail, then the aff<davit or certification shal l state Ihe surety's relalionship to the penon releasedl. An attorney, judicial offi. cial. or puson autho rized to a"ept an appearanct bond shall no! be precluded from being a surety for a member of hit or her immediate family. For pUTJ)05tS of this rule. the tum "immediate family" shall be limited to include only a spou..: a sibling: a spou..·s sibling: a lineal anceSlor or descendant: a lineal ancestor or descendant of a spouse. a sibling, or a spou$e's sibling: or a minor or incompd~nt pe .. on dependenl upon the surety for more than ont·half (li2) of his or her support: (2) S!;Iting that the surety owns prO!'erty in this state, which propnty, when aggr .. gated with that of other sureties, is worth the amounl of the appearance bond (provided, that the property must be exclu-

THE Al.O.BAMA !.AWY£R

property uempt from uecution and its ""Iue e<ju.r.lini lhe ounounl 01 tho aPPf~" ance bond mUSI bt HMM: and ow, allli.1bili. ties. including lhe iImOUnt of all othe, out· standing "~lIrance bonds mined inlo by tho surtty} and JPfCifying tNl property and the uemptions IIId 1i.1bilitiH IhertOll: IIId si~ of

(3) Sp«ifyini tho numbt, and amount of olher outslanding apptaranco bonds enltrtd inlO by Iht su,tly.

No surely may extCul~ an appearanct bond or bteom, su rety for more than four (4) persons in any Iwelve· (12·) month period (olher than immediale family membtTJ) unless such $Urety qu.r.lifou and n>«ts the requirements 0( .. proftssienal surety company or profn~ional bail ~ny,

In l"I'o(tulo~al Surety C<lmpany A "]IrofUlioNI $Urety company' is an insurance company, .. domHtic Or foreign corpOration, or an oUJOcialion ,npged in the business of insunn«, or a surety, 10 which <H' lowhom hu b«n iJsutd I "Certifocale 01 Authority" Or '~rtirlUlt of Compliance" by the Alabama DtJ>'rtmtnt of lruuran.ct to extcutt iPPUTlln.ct bonds or 10 tTll~1 a surety busi .... ss in the Stalt of Alab.l. ~.

(i) .... ofus lonal Ibil Company A "profusional lurely comp'ny' i, an insurance company, a domestic or foreign cor· pOration, or an ;wocialion engaged in Ike bwirwss of insur· ance, or II SIl rely, 10 wllicll Or 10 whom hu bHn issued II "Cer. lifonte 01 Authority" or "Ctrtifocale of Compliance" by Ille Alaba~ Inparlmtnl of Insuranct to utcule appearlnce bonds or 10 IransKt a lUrtly bwintsll in tho State of AbNma, (h) Profuslo .... RodclsmlJl A "]Iroftssion.r.l bondslTlltl" ilany indMdu.r.1 person or agent ...'ho is employed by I profu. sion.r.llUrtty company or prof~1 Nil DJIIlPiIlY to JOIicit and HK\Jlt lppUnnce bonds o. acti,,,,ly sttk Nil bond busi· nw for Or in behilif of a profwional surdy a.>mJ>'1l)'0, ,, proftuioNl 1»il company, (i) No profusionalsurely company or proftuiOf\llI 1»il comp'ny shall eUCUI~ or becomt Surely on any appearance bond in thil Statt, unltss it has an order granling aulhoriu· tion to becomt profnsion~l surety on IIny such Nil issutd annually by tht pruidinQ circuil judge 0( the counly in which sucll comp,any duiru to extcult such Nil or appearance boncIs. PrIor to tilt judgt'l issuance of such an onItr, profts.ional .urety comp,anin and booil comp,anits musllubmil annually 10 lilt prtSidi", circuil judge tho followina; I( a

profUlioNl SIlrtty company,

An originat o. nrtifitd copy 01 .. "Cerlific .. te of Aulhorily' 0' · Certificate of Compllancc" from the Departmtnt of lruu. · anct o{ the Sute of Alabama rtntcling that the company is qualified to wr itt tilhtr a

TW: AI.AIWlA LAWYER

SIlrt!y or a bail Ii .... of iruuranr:e and lhal tilt com1»ny is in IIood standing; (2) An o.iiinal "Qu.r.lifyini Power of Altom.,.' issued by the profeuioNl surety company, JPfCifyini any appliablt limita· lions and tht IItnts thllt art luthorizt<,l to tltcuU and bind Ih. compiny 10 a bail undertaking, The Qualifying ~r of Allor· IItY cannot name any company, corporalion, or other entity as .. n agent except a person as defined in paragraph (II), lind that person must be a licensed agent of tht company with Ihe Dtpart ment of ln$u rance of I he SUIt of ALl1»ma;

(3) A copy or copiu of Ihe lietnlt

issued by tho DtJ>'rtmenl of Insurance of lilt Stat. of AW>ama of _h ij/rnt who is IIlITIed in Or appointed by Ihe Qualifyi"lll'o\o.. . of AttOn1ty in (2/ abc:M or a kiln or other doc· umentation from lilt Dep.&rtmtnlof Insur· anc.e indicati", tNt SIlch appoinled agtnts ire Itmponrily licenstd oU IItnts of tht professional surely comp'ny for lhose linu of insurance; lind

(4) An affidavit or cuH{,caHon in writing, under oath. txecu\td by .. Iktll$t\l agent of the proftuional su rety company or II li,onsed agent of the profwional sul'ft» COIl1j:W1)' wh:> is the ~r, O"-TIfI' or presidmt of .. COI'llO' TlItion, tompany, p;.rtntl1-hip, or othrr entity that repmmU the po-okssional surety ~. ny, filtd with the cItTk 01 the circuit court of tach a.amty in which tilt professional sul'ft» oornp.>ny ....11 tUCut. o. btcomt lUrdy on ~ bonds. JUling tht ~Iowir-e (II) That III lppurance bonds ....11 be encuted in the name of tht profusion .. 1 surely comp'ny as surety by the agtnts li.ted or appointed in Iht Qualifying Power of Atlome;' prescnted to tht court Of any OIlier Qualifying Powen of Altornt)' foted with the circuil clerk of the county, (b) Th.11111 ij/rnts listed Or lPPOinled in tho Qualifying Powtn of Attorney will be IictlUtd by Ille o.tparlmenl of Insuranc., prior to such IWQinlmtnts.

Ie) That any agmcy, company, DJI'pOI'l' lion, or <.>Ihrr tTllity tNt reptQtnll the pro-

ftssional surety cornpany in lilt CA)Unty, Iw; 00 owntn or other persons havinQ a direct or indirecl flnanci .. 1 inltTtlt In such aitney,

(Coolin""") May 19921 2 15

company. COrporation, Or olher entity, lhat have been convicted of a felony Or a crime inoolving moral turpitude. If any PorIOnS. llaving a direct or indirm financial interest in such agel>Cl'. company. corporation. Or other entity. llave been convicted of a felony or a crime involving moral turpitude. th.n the ill'fidaoit or certification sllall «rtify trot thtre hOt> !>ten ,uch a conviction, providing the name of lilt person conoicted, and shall «rti, Iy that the 1"''500 convicted has bren p;lrdoned Or has had. restoration of civil rights; (d) That the professional surety COmp;lny has no knowledge of forfeitures that have bHn final for more than thirty (30) days that have nOI been paid arising out of surely undertakings , and as to which the professional surety company has no pditions. motioru. or otllt, litigation matters pending; (el That nO agents of the professional surety COmp;lny who have the authority to execute appearance bond, in its hthalf or any person llaving a financial interest, direct Or indirect. in Ihe ownership Or management of any agency. company, corporation, or other entity that rep .... nts the professional surety company in the uecuhon of appearance bonds, is an attorney, a judicial official. a person authori~ed to accept an appearance bond. or an agent of an attorney. judicial official. or person authorized to accept an appearance bond;

(f! The names and addresses of all persons. officers. empl~es. and agents of the agency, company, corporation. or other .nlity that represents the professional su rety company becoming su,tty on appearance bonds who have a direct or indirect financial interest in th. agency. company. corporation. Or olher entity .. pre.. nling the professional surety comp;lny and the nature and extent of tach interest; and (g) That tho,e pe .. ons ,tated in (f) ha,'e not. with in a period of two (2) ;-ears. violated all)' prOVisions of these rules or any court order pertaining to these rules_

If a professional bail company. (I) An original corporate surety bond or escrow agreemo:nt, filed and approvtd by the presiding drcuit judge of the county in which the profes.sional bail campanf shall uecute Or become surety on appearance bonds, in the amount of $25,000. guarantee-

216 1May 1992

ing the p;lyment of all sums of money that may become due b» virtue of all» judgment absolute that may ~ rend ...d agairut said professional bail (ompany on a forfeiture entered b» any court in the county. Corporate surety bond. shall be executed only b» a surety compan\' authorized to do business in the State of Alabama and qualified to write such bonds b» the lruurance Ikp;lrtment of the State of Alabama. Such corporate surety bonds shall provide that it may ht CAnceled as to any future liabili ty by the corporate surety company·~ or the professional bail company's gi~ing thirty- (30-) days prior written notice Q( such can(ellation to the clerk of circuit court in which the bond Or instrument was filed. A bank in the State of Alabama must be a party to all escrow agrttments, and those agreements shall provide thai the agreement may be canceled as to any futu .. liability only by the professional baH company's and bank's giving thirty· (301 days prior written notice of such cancellation to the clerk of circuit court in which tilt escrow agreenwnt or instrunwnt is filed; (2) An original "Qualiffing Power 01 Attorney," leUer, or other document ;s.>ued b» the professional bail company specifying any applicable limitations and specifying the agents who are authorized 10 execute and bind Ihe professional bail comp;lny to a bail undertaking or to appearance bonds. The Qualifying Power of Attorney, letter, or other document may name persons as agents, only; and (3) An original affidavit or certificate in writing, under oath, executed by an ",,-ner or olnc", of a profes.sional bail company. to the clerk of the circuit COUrl of Ih. county in which the professional bail company shal l execute or become surety on appearance bonds. which contains the following: fal Thai all appearance bonds shall be executed in the name of the professional bail company as surety by the agen ts listed or appointed in the Qualifying PO><-'er of Attorney. letter, Or other document p.... nted to the court of any other sO named in any future Qualifying PO'o'o",rs of Attorney. letters. or documents filed with the circuil clerk of J.aid county. (b) That the professional bail company is qualified to do bu.;n• .,.in thi, state and its r"-'ident add ..ss;

THE AlJ\W\A lJ\\\IYf:R

Id) Th.l.t no person ha\'ing II dirtd !II' iodirtd fi....ciJ.1 inttnst in the professional bail rompany tw bn:n tI.lIlVH:led Ii II ~Inny or. erime inYGlving ITII)nl turpilu&o , tlttn tile penon milking tile certilicali'm IIhlli certify th.Itllltre tw btrn such II ~ioo, providing the name 01 lilt person convicted. ,nd shall certify that the person con~icled tw bttn pardoned or has had , restonlion of civil rights; Ie) That the professional bail company 01 any fllrfeilurt Ihll tw b«n m.r.de final/or mOre th.In thirty (30) dII)'Ithlll tw not bten paid uisinQ out of surety undertakingund is til wIlich the profusionlll blil company has no pttitions, mocions, or otl>fr liliption matttTl pending;

no l<nowledllt

If) That there ue no persons. includ· in8 empl~eu, Igents. or pe rsons wilh , finllncilll inlernt in the pro/cHionil bail comi»'ny. who. within a puiod of t.... o (2) )'tIIrs. violated any provi.ioru of thtJe TUlu or any court order peruinin8 10 theJe rules; I.) That no emplO)'to, agen\. or Iny olher pers{ln haYin8 II direct Or indirect financial interest in Ihe profeHional bail rornpany is 1IIl1ttomey, II judicial offICial, I peT$Ol1 lIuthoriztd to KUpt an il$IpellTUlce bond. or In 'ilent of lin IIItomey, judieiJ.1 official, (lr person authorized to Kcep! an allPUTinCt bond; lfKl (h) The namu olIId ~dmm olin offi· ccu, tmploytts, and agent. of the profu· sional bait Company .... ho have a direct or indireci financial interest in the professional bail comPJ.ny and the nature and extent of each Interest.

Ul All proftHionil surety c{lmPJ.nies lfKl all proItHlonal bail compania wit file all original documenu required t{l bt filed pursuant to Rule 7.I ..ith the clerk 01 the cir· cuit court Ii the COUJ\Iy ...-hert such rornpa· nia desirt and intend to b«ome JUTtty on ~TinCt bonds. Such docurn.nts '"'" publie r'KIOrds. (k) All c{l r porale surety b{lnds Ind nc row ,greemenu asset out in Rule 1,1 shall be med with tht ci rcult cierI< of Ihe counly where tilt professional bail company desiru and intends to become surety on THE AlABAMA lAWYER

appurlnce bonds. lind such blinds and escrow lOgfttmmts must bt iPPTO'o'td by the prtsiding circuil judlle u bting sufficient. Any ,urely bonIb, ,scrow 'ill'fl'mtnts, and olher docum,nts pertaininQ or IIttached therrlo..wl bo oriIIinab only. After the doc· umtnU .... ~, the circuit dtrk ..wI uke cmt<)dy 01 the original$ lind me iMm for wel<etp;"II. (1) All corporale lurtly bonds lind escrow agreements shill contain tsJentillly the language Jet out in the forms provided in the appendix to this rule . Corporat. suroty bonds preJented shill haw iUl orillinal Qual· i/ying ~r of Attorney from the rompany attached therdo and II Ctrtiftaote 01 Authori· Iyor Cerlifiule of Compliant< from the inpartment of Insurance of Ihe Slate of Alabima rdltcting tNt the COfllOI'ite surety C(ll'tlPJ.ny is qualified to utCUte su.. ty bonds inAlabima. 1m) All rorpOn1t suTtty bonds md ~I tserow agTHnlOnts tNt have bttn filed md apflTO\Ifd by the probate Judge of lily coonI}' of the State 01 Alabama, for the pUTjlOJt of quaHl»ing bail CO/O/linits, prior to the ado!Ilion of Rulc 7, as lrmnded. shall bt for,,'ard· td to the circuit clerk of Ihe $ame county in which such bond or e$Crow a,greermnt was roltd. T1'K circuit cierI< Ihlil role and main· Uin them for Sifel<uping, Any such corporate JU"I}' bonds {IT HCrow ilI'fl'mcnts not in conformity with thut ruin but thlt have bn:n appl'O"td by the praiding circuit judge {If JUch coonty prior to oe"mbcr 1, 1992. Ihall not afft.ct the prO/t$Sional bail wrnpo. nYs right to utCUte lIflIIUr.ance bonds. but \hos.e professional Nil «HllPJ.niu shill bt OO!ifttd by the circuit clerk by certified mail. return receipt rtqlltsted. th.Illhe documents are not in conformity lnd shall haw sixly (60) days from tilt date of re"iving notice to comply. If the professional bail companies ha,.. not complied within the sixty (60) days provided, the clerk ,hall notify lilt prniding judge of the noncompli.'lnce olIId tM prtsid· ing c1Ttuil judge wll issue .. order of rt\'Oatioo Ii its ordtr of authori:ution. All P...... fessional surely c{lmpanies Ih.it are nol in rompliance with lhut ruin but th.it hlw bttn issued "n ~r 01 aUlhori:ution prior III Dtctmbtr I. 199I.shlllli~ bt noti· fltd by the drcuit clerk md shall bt.allowed sizl}' (60) dIIys to conform lind comply, f"il· ing which tlltir authoril}' wll bt moktd. (n) The presidinll judge (If the circuit court allny t ime may, lind on veri(jed (Ctmlfnued)

MIl)' 1992f 2 17

motion of the prostcutor shall. sub~na the representatives of the professional ,u rety company or professional bail company or other persons for examination under oath concerning mauers reiating to any affidavit or certificate filed. outstanding forfeitures. and all relevant books. ta~ returns. and financial data. Authority to act Ill; a profe.sional surety company Or a professiooal bail company may be revoked or ..... ithh.ld by the court for v;olation of any provi.ion of this rule. for failure to submit subpOenaed documents . for fai lure to an' ..... er truthfully all relevant questions Ill;ked by the court. or in the ewntthe profe.,ional surety company Or professional bail company has outstanding and unpaid final forfeiture(s l. As used here· in. outstanding unpaid final forfeitures shall be those in ..... hich a final order or forfeiture has been entered by the court and thirty (301 days have elapsed ,ince the date of the judgment; provided. ~r. thaI those compa· nies have no petitions, appeals. or other matters of litigation pending of which the court has knowledge.

oath of quali/j>ing information. including that no person have a financial interest in the business hill; been disqualit1 ed for any reason from lxing in the bonding busine». Rute 7.IUl requires certification that the bondsman is not acting for an attorney or other disqualified person. The rule would not necessarily preclude the spa"'" or a close relative of an attorney from acting Ill; a bondsman. but it would cast a 'trong burd~n of showing that there .....as no financial benefit. direct or indirect. accruing to the attorney. The impli. cation would lx otherwi,.. and th~ lxUer practice would lx to avoid the appearance of impropriety. On One hand. the rule kups the anorney from being in a potential connict of interest with his 0Ml client (as. for example. not arguing forcefully for relf.ase on rec<>gni .. n", in hopes of making a bond fee). On the other hand. it rern<">Ve5 the a!lorne}' from the position of ful· ingobliged to make bond for a client who has paid the atlomey a good fee for representation. The language gi"';ng the court power to inquire into the bonding business is "';thin the inher· ent power of th~ (Ourt anl"''a)'. but the rul~ makes it explicit. The district attorney i. given power to initiate an inquiry. which he Or she could do an)'Way through a grand jury investigation, of suspected perjury in the certificate. r'ailure to fu r. nish records or to respond truthfully is sufficient grounds for the court to withdraw Or to withhold authority to make bonds. Rule 7,2 Right to Rein"" on One' , Own Rerogniu nce or on

(Amended effective March 3. 1992.)

COMMI1"fEII COMMEN1'S AS UIENIlHlI TO CONFOIlM '1'0 R(JU~ AS AMENmm EFIIEC'I'IVE MAIlCD 3, 1992 Rule 7.1 provide. det1nitions for"'" within th..., rules and explicitly defines ' professional bond,mm" and impOSeS restrict ions and requirements on the busin"s of making bonds for otheT$ for a fee. It is specifically provided that any surety .hall be liable for the full amount of any bond .igned. regardless of other requirements that must be met pUT$uant to this rule. e.g., deposit of S25.OOO corporate surety bond. Attorneys. as officeT$ of the court. judicial officials. and oft1· cors authorized 10 accepl appearance bonds. should not be making bonds. Su Ala. Code 1975. i 15·13·22. for general qualifications of bondsmen and Ala. Code 1975, ~ 15·13·24. for restrictions against judicial and ministerial officers of the state becoming sureties or signing bonds. Section (h) defines "professional bondsman" as one wOO is employed by a professiooal surety company or profusional baH company to solicit or e~ecute appearance bonds or to actively seek bail bonding business. The court supervises pro· fessional bondsmen by requiring annual certification under 2 18 1 Mayl992

...".

(a) Before Convict ion Any defendant charged with an offense bailable as a matter of righ\.'! may be released pending or during trial on hi. or her personal recognizance. unle» the court Or magistrate determines that such a release will not reasonably assure the defendanfs appearance as required. or lhat the defendant's being at large ..... ill pow a real and present danger to others or to the public at large. If such a determina· tion is made. the court may impose the least onerous condi. tion or conditions contained in Rule 7.3(b) that will reason· ably iS$ure the defendant'. appearance or that ..... ill eliminate Or minimize the risk of harm to others Or to the public at large. In making such a determination. the court ma,y take into ac(Ountthe follOWing:

The ddendant'slength of hi. Or her place of oomicile;

(I)

re,i~nce

(2) The defendanfs employment status and history and financial condition: (3) The defendant's family ties and rela· tionships;

The defendant's reputation. character. and health;

(4)

The defendant's prior criminal record. induding prior releases on recogni .. nce or on .. cured appurance bond •. and other pending cases;

(5)

The identity of responsible members of the community who will vouch for the defendant's reliability. (7) The nalure of the offense charged. the apparent probability of conviction, and the (6)

THEALAIlANA u\WYER

Itnlenu, insof~r U Wit facton ~re ...... oIl'1(lf1appU.rn'Itf:; and (81 Any otht-r bct(M1 ind~tin, the defen· dIonrl ties to tht romml,ll1ity or buring on thf rislc oIwillful failure to a~r. li~1y

n~t to tht

(b) Aner COM'ietion ond Sentencing (I) After a ddendmt ~I b«n ronvid· ed 01 an off~rI$<' for whith thf defendant has betn KIltmud to punishrmnt by death Or by life imprisonment or by imprisonment for a term in ucess of t~nty (20) ~a",. the ddendMit hit not be rt~.

(2) Any defendant who lias been con· viettd of an oileri$<' fOT which the dtftndant has been Itntenced to I tum of imprison· ment of twenty (20) yean or leu may be .elused on appurlnce bond or on t he defendant's Jlff$Oflll rtWlfnir.ance. (i) Upon aPIIlication for rtltMt .... de con· currently with tilt Iiling 011 notice 01 appeal. or If an appliation for prob,ition is madt. (ii) upon applialion for reluse mide al any lirm before probition has b«n ,ranted or dtnied. (c) Denla] of Relea.e Relealt shall be deni.d an tr conviction and sentenci ng if the trial cou rt has rUSOn to belit\'t that the appurance bond 0. conditioN ol reluse will not ~;wtln that tho dtfendanl will not An. or that tho defendant's Ming at Lr.ree posa. rul and pmmt ~r 01 harm to atll' other person or 10 tho publk at ~. or if II lhe lime Knler« "'<>5 nn.ikrtd, tho ddtndant Iiled I notia 01 apptal ind tltdtd to "'Wvo rtluse and to Mgin Itrving otn· tence.

COMlllll"1'EE COMMENTS The Eighth Ammdment to the United Statts Constitu· lion pl'OYidtl; "[l<Ce15i~ b<oil shall not be requi red, nor ueenive fines imposed. no r cruel and unusual pun ish menu infiicttd."

Art. L

f 16, Alaba .... Constitution of 1901.

provides: "1l\;ot ~I ptrsons ihll1, btfort convic· lion. be bailable by suffICient sureties. nupt for capital offmses. ",'11m the proof is tvidmt or tho presumption grut; and iha.t txal5~ booil""ll not in any taU be rtquirtd."

Set liso Ala. Code 1975. f ]5·13-2, and ·3, (or right to b<oil M a mattu of right.

TIlE ALMiAMA lAWYE R

Asswning that thf oIfmse is NiLr.ble. Rule 7.2 is bued

on thf pnsumption 01 il\JlOttrIU 01 the accwed and tho policy that ~ cltftndmt should bt rtLeued ptndlng tria] whenewr possible. TIlt dtkndant is eligible for I recogniLll'ltt nllWt unless the judge dtlerminel that Ihe ddendant'l prueMe would not thtnby bt r&SOnably iWUrtd or iha.1 the defendant posts a n al and prestnt dIongu 01 harm to others. TIlt lilt of facto", to be tonsidend is laken from the ABA, Slandards for Crimi ....1Justiu. Prtlrilll Relnse 10·5.] (2d ed. 1986). St<:lion (b) recognius that lfter conviction the deftn· dlint is no lo"ller prnumtd innocent ~nd i, not entilled admiSiion to Nil M I matler 01 right If tht cltfondanfl otn· ttnU is for twenty (20) yon or less. he an bt Idmitted to Nil, in the judge's diJCntion, unleu the judge has nuon to belit\'t t~t b<oil will not reasonably Mlun that the defen· dlint will not ntt. OT that thert is a rtal and prell'nt danger to othe rs poled by the defend ant's bei ng at larQe. thereby modifying Ala. Code 1975. 112·22·] 70. which uncond itional· Iy all",,·s bail if the Itntence does not uceed twenty (20) )'tlrl.

Undl'r Rule 7.2(b](2)(i), a convicttd defendant may apply for rtleast on an appearar'l« bond or on his pel'lOlll1 r«oe' niJ.anCe at tho time oIliling I notice oj appeal. This changes former pnctiee whtreby appliution for rduse hid 10 be midt with the filing 0( notiu ol appul at the tirm otntence was rendered (i.e .. at the tirm sentence WM prooounced). an unduly ru lricti,,!, unfai r. and technica l trap (or the unwary practitione r. Soe Ex pmll! Dow"er. 44 Ala. App. 77, 203 So.2d (1%7); Ex p<1rl~ Rogen. 53 Ala. App. 245. 298 So.2d 665 (1974); Ex porte Prnninglon, 57 Ab. App. 128, 326 So.2d 6S6 U976). for"Apptal.oIRighl _ Whrn Taken." 1ft A.RJI,pp,P.. Rule 4(bJ. CP. f ed.R.Crim.P.. Rule46(c). Rule 7.2(b){2) atl(JW$1OI'!'It diotretion to the trial iudll< in nleasing thf dtfendant on Nil or on the defendant', pt r· sonal recognizance. If the defendant has initially filed I notice of appeal at the time Itntence WaJ pronounced but elected to waiw rele ..... and 10 begin serving the Itnt~ nce and then lfter reQutSli thaI the otntence bt susptndtd. whether to ,rant Nil is len to the discrtlion 01 the tml court. TIltrt an no aus on this point, and then has bttn some Quotslion "t.ether the trial cou rt reLlli", jurisdiction owr the de/tndant, because the dtftndant will have already btgun otrving sentmce. Howtvtr, it is pmemle that the trial court make the rtLtaot decilion. beQ,US( that court is mort bmiliar with tht taU, btcius( the record is usually . till with thf tN! court, and because _11)' wit· nusts would be more nldily available to that court. Ru le 7.2(b)(2) conforms with t he Alabama Rules of Apptllate Proctdure. Rule 9(b) 0( the appellate rults provides: -Release iftU judgment o( conviction shall be go:M:mtd by Tillr ]5, It 368 and 372 [Ala. CocIt 1975. I 12·22·170[." Rule 7.3 Conditions of RtltaH (I) Mandatory Condition. Ewry ardor 0( nllWt uncler this rule ",,11 rontain the cooditions that the defendant: (1) Appeu to ~1\J\OI~r and to submit to

(Conliliutld)

May]992 / 2 19

the orders and process of the court having jurisdiction of the case; (2) Refrain from committing any crim. inaloffense; (3) Not depart from Ihe stat. wilhoul leave of court; and (4) Promplly notify the court of any change of address. (b) Addilional Con dition l An order of relnse may include anyone or more of the following conditioru; reason· ably necemry to ,",cure a defendanr . appearance; (I) E><Kution of an appearance bond in an amount specified by the court. either with or without re~uiring t hat the delendant deposit with the clerk Sl'curily in an amount '5 required by the court; (2) Exttulion of a SKured appearance bond; (3) Placing Ihe defendant in the cus· tocl» of a designated person or organitation agreeing to superviSl' the defendant; (4) Restrictions on the defendant's travel. aswciatioru;. Or place of aboode during the period of release; (5) Rdurn to custody after specified houn;; or (61 Any olher condilions which the court deems reasonably necessary.

own inili.tive Or on applicalion of either pari)'. modify tM conditions of .. lease. after fin;( giving the parties an adequate oPPOrtuni· ty to respond 10 the propOSed modifications. (c) Re-.' fW by CI",,,II Court By the SK· ond day of each month, the offICials having custocl» of defendants who are being held in jail pending trial or on extraordinary writs ,hall provide the presiding judge. the district attorney. and the clerk of the circuit cou" for the county in which such defendant il being held, the nam .. of all defendanls in their custody. the chuge Or charges upon which they are being held , and the date they were most recently taken into cwtody. The circuit ccurt shall review the conditi ons of ..lease for t\'ery def. ndant who hM been in j.n for morelhan nindy (90) days.. (d) Rtvi ... by ." Iunicipai Cou rt By the ifcond day of each month. the officials hav· ing custody of defendants being held in a muniCipal jail pending Irial Or on utrilOrdi. nary writs shall provide 1M presiding munic· ipal judge. the city attorney. and the munici· pal court clerk. with the names of.lI defen· dants in their custody. the charge or charges upon which they are bei"ll held. and the dale they were most recently taken inlo custody. The municipal court shall .. vitw the condi. tions of ..lease for ewry defendant who has been in the municipal jail for mOre than nindy (90) days.

COMMI1'TEE COMMF.N'fS

COMMl'rl'lm

Rules 7.3(3) provides mandatory conditioru; of release. which apply in "'ery relUle ordn. Rul e 7.3(b) allows the court the fleJIibilily to fashion other conditions of .. lease.

COMMF.Nl'S

Rule 7.4 l'TOcedure for Determination of ReleOlH Conditionl (.j [nilia[ l>ecil ;on If a defendant has not been released from custody and is brought befo.. a court for initial appearance. a determination of the condilioru; of ..lease shall be made. The judge or magislrate shall issue an order containing the condilioru; of release and shall inform the defendant of the conditiOn>. the possible consequences of the ir violation. and that a warrant for ar ..st of the defendant will be issued immooiately upon report of a violation.

(b) Amendm,nl of Condilions If the defendant is in custody, the judge or magis ' trate may. for good cause $heM'Il. either on its

220 1 M.y 1992

Rule 7,4 provides Ihe mechanism for ,",!ling and periodically revifWing release cond itions. The ccnd itions of .. lease will usu. lly be sel On the arrest warrant at the time of its issuance. [f not. or if the defendant cannol meet the condi. tions. the defendant gets iI release hearing at inilial appearance within seventy·two 172) hours of arrest. Th . ...fter. the conditioru; can be modified if neoo be. to be made either more or less stringent. depending on the circurrutar.ces. Sectioru; Ic) and (d) provide a.mans by which the responsi· ble officials will be app ri sed of th e status of long·term holdovers. Rule 7.5 Rtvi"", of Conditions: Rev<>ation of Relea. e (a) l ... uan~ of W.rnnly Upon motion of the prosecu· tor stating with particularity the facts or circumstances consli· tuting a material breach 0( the conditions 0( release or stating ",ith particularity that material misrepresentations of omissions THE ALABAMA UI.\\lYER

n_.

dbet wtre INdt in smJrm, the ddmdant's the coun hiving juriJdiction OYH the ddmdant relased shall iss~ II" arml WImIlt undtr Rule 3.1 tOSKUre the ddmdinI,'spot5l!rD in court. A ropy 01 the motion Wll be xnild ...ith the ...wnnt, U>d I huoring shalt bt held on the motion ...;Ihout undue delay, uetpt in no ..... nt latu thm SM:nty.1wO (72) hours aft~r the Irrt$\ of the <ltfendant rtte~.11$ provided in Rule 4.3(al. (bl linnng: Rovi~w of Conditions: Revocatil>n I>f ReItaN Jr. after a hearing on the maUers set forth in the motion the court finds that the defendant rdraKd has not compl~d ...ith f>r has viobtnl the condit""" d. rtlease. f>r that ma~""1 mi$rtprtsen1»ion5 f>r IlITIiuion$ d bet _ mad. in securing !hoe ddmdlnt"s release. the court may modify !hoe conditions Of rn-olce the reiOK. If I ground alleged ff>r mooation 0( the release is thaI !hoe defendant released has \Iiobtnl the conditim u~r Rule 7.31a)(Z) by committing I criminall>fferIK. or that tl>tre W1l$ a misre presentation or omission con""m ing otl>tr cha~s ptndi ng agairul the defendant released. the court may modify the coodition 01 reltase Of revoIce the reltase. if !hoe court finds that there is probable QlIOt If>r if there has aJrud)' bern • ftndina d probab1e ....... j to bel;"'" tlvot tho: defflldant reltutd committnlthe other oIftnse Of oIrtmts charged.

COMMl'rl' I~ E

(;OMMEN1'S The 72·hour provision for hurin8 on a motion II> revokt releue is in harmony ...ith the policy behind Rule 4.3(111 I1Wi) thil lhere mllSt be 5Ofl"If \ypt d. hearing within ~~nty.two (7Z) hours 0( a,""1 in ordrr II> hold someone. The rule is not intendtd 10 OperlOt. 11$ an lI»oIu~ den~l 0( release wl>tre there is probable cause to beli ..... the defendant committed an offerIK while on release. lI~r. since it is an automatic, mandatory condition 0( release that the defendant not commil an offense. th,n the Sol"'" problems of finding p~lr aUK and what 10 do about it still uist. Rule 7.6 Tnnifn ..... Disposillon of Bond (al Tnnlf.. upl>n Supr rv r ni~ , Indictment An apptal"llllU bond or releaK ord« issunl to mure the defen· ,un!", prtKl>« for poocudinas following lhe filing d. a tOm· plaint sh.alliutomalically b< Irarufurtd to tho! same charge prosecuted by indiclment. even though the complainl is suptrsedtd by return of the Indictment, unless. upon issuance of the urut ....amnt following indicl"",nt, the judge prelid· ing. for good tllISf. Jhall ordcr rtyO(.llion or modifi<"./ltion 0( the condit""" 0( relta.w. all prcMdnl in Ru~ 7.5(;0) ~ (bl. (bl Filing and CUI tHy of Appeannce Bondi and Stcurlty Appuzanct bonds and KCUrity lhall be filtd with the cit.. 0( lhe o;ourt in whith 1M (I$t is ptnding. \\'hnm.~r the (I$t is transferred 10 another court. any awul"llllU bond and security lhall b< transferred allO. leI Surntndn of ~rendut by SURly At any time, a lurtly may lurrender to the sheriff a dden,unt reltased. and the Iheriff shall ct rtify such surrendtr to the court. The dden ·

dant may then obtain othtr lIIrrtin undu lhe SoImr condi. tions 0( release. In munici~1 ordinal>« cases. surntndtr may be to tho! chitf 0( polia d. the municipality. " iIo lhall certify to the court the dtftndin!", lIIm'ndtr. (d) Forir itu", If at any time it apptus to the court that a ddendant fails 10 awear, tilt court shall 110 not ify the prinCipal and any lurrty and shall require the princi~1 and Iny surety to ,how ca use by filing a ....ritten r<sponu with tht cltrk of II>t court wilhin twenty·tight (28) days of the ,ute of Hrvke 0( tht notict .... hy tht bond mould not be forftittd . Tilt notia required by thif lulmction may be x~d in the SoIme manner III providtd in Rule 3.4 fo r the xrvict oh wm· mons II1d must be returned by tilt person serving it. with hif proper return tndorsed thenon. wilhin twenly·eight (28) d.iy$ oIlhe ,ute of iuurlOnce or within f..... (S),uys 0( xMn. .... hkhr:vtr ptriod of time is shorter. If tho! notice is not HNed on Iny 0( Ih. part ir. to the undertaki ng. such olhcr notitu as are necessary may from time to time be issued. bu t two rtlurns o("not found" by the proper offictr Ire equivalent to ptrwnal servin. [f. writttn response is filed wilhin the lime allowed. tilt court lhall Mt • hearing to detenninc whether the bond should lit forftitnl. If at tilt huoring tilt viobtion is not w:ustd for good aUK. Of if, afttr twmty-eight (28},u)'S from the oUt. of Xl"\ia 0( the nolin, no written mponsr his bern filed, tilt court ...-y enter m appropriale ordotr Of final judgment forfeiting all or ~rt 0( lilt amounl of the bond or ash deposit. which shall be tnforceabl. as any civil judg· m~nt.

Ie) Exo ...... tlon At lny time lhat the court finds there is no furth. r nud for an appeara",. bond, tht court sh.all UOrltrlOte tilt """"arlO,,,e bond and orde r tl>t relum of any security drpositnl.

COMMlrn;E COMMENTS Undtr prior PfIclict. bonds did not lWtuu.riiy carry CMr from one court to lnothrr. Und.!r Rult 7.6(11. tilt SoImt bond would <"./Irry CMr from the initial Ippearanct through indictment ~ trial, unleu the presiding judge for good caUK orders revocalion 0( tht reluw upon issuance of the indict· ment. Tht good ause ma~ be Information nol available to lhe Uiltricl attorney urlitr, or whkh ht did not want to reveal until after an indictment WQ returned. The pronss 0( rt\'OtItion is tilt SoIme all in any other Situation. [n my ..... nt. rtYoIc. ing rtlease It this sllgt Ihould not be don~ capr icioully, brao_ in most instancrs no good reason uists to relrrest tilt defmdant md ~ him t>:«lIIe I new rrcogniUllCt bond or mike I new secured bond. This would, of course, apply III well to Iubs\ilutt indictments.

See Ala. Code 1975. 1115.[3-$, .al ,and ·82. wh kh relate to forfeitures. May 19921 221

CORPORATESURETY 80ND

KNOW ALL MEN BY TI-l ESE PRESH."TS. thai wt. (bail C(Im!lan~} . as tht printipal and th~ "",,":;;;;:;;;;0 (surety com!lany). a Corporation. as Surety. duly aulhorited and uisting under and by virtue of the laws 0( the Stalt 01 Alabama and authorized to bfromt sole surely on bonds in the State of Alabama. are held aOO firmly bound unto lhe courts 01 County in the SUtf 01 AI,bama il1ld unto tho SUtt 01 AlabalTllo or all)' political subdi"'. ,iOf! lhereol'. in lho full il1ld just sum 0( T'wtnty路fi'o'!: ThouwId aOO No/loo ($25.000) Oolllrl. LIowful momy 01 the United SUt" for J)I,)'ITItnt 01 which .... ill and truly br mide. wt bioo oursehti. OUT heirs. eucutoTl. admlnistTlltoTJ. so ,,"cesvm. il1ld assigns. jointly and _raJly. firmly by Ih<~ pruenli. nx right 01 Utnlption uooer tho COfIititulion and laws 01 Abbama. is hereby IOI3Ned.

WHEREAS. the principal &siTU to ~ in the bu$inrn 01 making boncb and durging therefor. and whtlUl. the is ftqUirtd to furnish bond with co.pon.tt iurety authoriud to act ... Surety on bonds in this su.te for the amount 01 Twtnty.Fi'o'!: TholJsand and Nolioo (S25.000) DollaTl In xcon1il1lct " ith Rule 7.1. Alibama Rul" 01 Crimin.lll'nluduK. princi~1

NOW. TI-lEREFORE. lho considmtion oftlot ~goi"ll obligation is such tNot may Ix d~ to tilt su.te of ~ or il1lY political subdivision thereof by virtue of any judgmtnt absolute bring rende~ agail\$l"id princ:i!lal. as Surety on said bond or bondl. this obligation to br null aoo YOid. othe,.....;~ to remain in full force and efftc\. This is a continuous bond and sllall remain in tfloct unless cantelled as provided huein. 0( the

l! is expressly understood and agrrnl tllat regardless of the numlxr 0( premiums tllat sllallix payable or paid. tho liability Surety shall not Ix cumulati~ and stull in no ~nt exctfd in tho aggrega~ the sum ofT'wtnty.Fi~ Thousand Dollars.

This bond may be canetlled. as to future liability. by tlot prindpal's or surely's giving no Ius tllan thirty (30) days' noti芦. in writing. to tho cle~ oItho Circuit Coun of County. AI.Uwna.. IN WITNESS WHEREOF. the said principal has hemmto set its hand and seal and 1M said .;;.;;-:=-""~'~Icompa路 nyllw caustd Ihe~ prtstnts to be siSned by its p,..r omen for tho purpose Mted ~bovt on thit day 01

___ ."L WITNESS

~---------------

'''---======--Corporatt Surety Company

BY, _ _ _ _ _ _ _ _ __ ATIQRNEY.1N.FACT. _ _ _ _ _ _ _ __ STATE OF' ALAIlA."IA -::=='udic:~l Circuit _ County Briore mt this _ dq of . 199_, ptl'KlNlly ~ppuml ,who ~~ iu>oI<o'lllo mt and kn.own to mt to be the inclivilhWs described in, rnd who t xtroted the forel/of"ll bond. ~nd \hqI acknowltdgtd to mt thlot they IlUCUted

""~.

NOTARY PUBLIC 222 1 ~

THE ALABAMA LAWYER

ESCROW AGREEMENT STAn: OF AL\fl..\.\IA Judicial Circuit Coo•• It being the cltsiu 01 (Uil com~) to p.>rdIMt Cfrtificm(f} 01 ~ in the Il.lbI ~ oIl'wtnty-r_ Thousand DoIbrs {S2S.ooo} ...'hidl shin be in the name 01 '*>k 01 ~ as E..:row Agtnt for (bail ~. ny) : docu"....nt ;and itf tm,," a.. $Ubmitttd for appn:ml ;and ~ by the Pmiding Judge 01 the Circuit Court 01 the :::;:-;C:,Judicili Circuit. County. AIabama.;and wIltn N.id appl'OYlll;and acapWl« is givt11 by the said Praiding Cir. cuit JL>dg<. then this document and its tums shall constitute the ru .. ty bond or escrow ~rtt"....nt in lICCo~ with and as required by Rule 7.1 01 the Alabama Rules 01 Criminal /'l'ornIuru. &old aP!'fO'ol'l iInd iIICce~ shall be evidtneed by the signa.ture 01 the Presiding Jud~ 01 the Circuit Court 01 County. Alabama.. being u«uttd hertto.

Tht pn)Visions and tenT'll oIthis tsCTOW ;agrmnent shill be as follows:

Upon m:eipt oI~nty· Five ThouWHl OoIlars (S25.000) from (Nil com~) 01 ,A1abam:I shall issue ctrt ificate(s) 01 deposit in the name of bank of • Alabama. as escrow 19tnt for ;;;:;::;;;:" (bail company) . Said certificate/I) of <ltposit may be rei$Sutd from maturity date to maturity date $0 long as the :principal sum(f) shall not be leu than ill tOUI sum of Twtnty·Fi'"e Thousand Dollars /$25.000) omd said rtissuance shall con· form to the Tequiremtntf and tm", of this liTHl"IWn\. bank shall send to the said circuit cttrk copies of the original cortifiate(sJ of deposit as heretofore I"IWntiontd UHI copies of the origiml Cfrtiroa.te(sj 01 deposit I0Il heff:lo1Ore mentioned iInd copies oIl1ny and III reissued Cfrtifocote(s) of deposit ""ued hertUndtr. &old CfrtifitatebJ 01 dlp:Isit ....... in in eicrow lind they ITllIY not bf, withdrllwn or convertod without prior consent of the Presiding Circuit Judge of _ _ _ _ _ _ COUnty, AlabalTlll, and such ronsmt shall be in writing. An interu.\..farned from said cfrtifiClltt(l) of deposit shan '''~'~':;d~'~"~==between (bail company) and bank of_ Tht Wd cuit Judge 01

(bail companyl as ag.ud to

bank. is hereby lIuthoriud 10 pay from loaid CfrtiflCatels) on mript from an order of ~ Pmiding CirCoonty. ~ 10 the SUIt 01 Alabanv. or its political subdivisions.lI1d said paymmt is hereby

~tttd to the full amount of said drpo&it lor T'wmty-rM Thousind Dollars (525,000), .n sums of 1TItIfUts that rmy become due to the Statr of Alabama or any of its politital subdil.isior\s by virtu! 01 J ;udgmmt iIbsoIute being rtndtrtd apinst the said "''''CC", bilillXlfllPllllY on i forfeiture 01 bioil, Thr 199rtgale liability 01 said bank .\hJl1 not tlICftd the said 1'I.,mty-Fivt Thoosand Dollars (S25,000) 50 dtpo!litrd iInd till loaid bank of . bilil 00ffipan». or both. ~ cancel this agreement as 10 omy future liability by givintl thir\)' (3(}) days' wri tttn noti« of C.l1lCfllatlon to the circuit clerk of County.

Upon the approYlll and lICCfptancO by the ?ruidi"i Circuit Judge of effective. ACCEPTfD AND OECl1TED THIS _

DAY OF

County. tllis doc:umtnt shan btcorM 19',L .

STATEOF~

COO"-,, I.

a notary public in and (or N.id Sute and County. do lIereby certify th.l.t • whose name as of bail bond company. is signed to tilt foregoing ill$trumtnt. and who i, known to me. ackrl<lW)' edged be/cre me on this dalI. that being informN of the contents of said instrument, lle/sllr as ,uch officer and with full authority. u«utrd the $.I.me volunUrily for and as the Kt of said bioil company. on the day the same bears date.

CIVEN UNDER MY llANO AND SEAL TIns _ _ DAY OF

. 199_.

NOTARY I'\IBLIC

MIl)' ]992 / 223

MEMORANDUM 1'0:

PrHiding Circuit Judgt Circuil Clerk Municiplol JudgtS

FR().'oi: Lulit C. .k)/m$on

Adminislraliw OirKlO)T of Courts RE :

ClI1culation of Time for Post· Trial MotioN under Rule 24.4. ARC,P

Recently, several queslioru M...e <nisell rtjJarding the timt cakul ation one should ule in determining Wlltll pOol-lri.1 motions l~ dtnied by operation alia", pursuanllo Rult 2U. ARC,P lfonnerly Temporary Rule 13(dll. Rule 24.04, Allerf'. is txpIicil in its ~ $U(int. "No motion fo r new trial o r motion in ,.<tS! 01 j~1 ~l remain peooilllil in lilt lrial tourl for f'I'IOm than sixty (60) days Mltr tho _nco .... nt of HlllelKe. w:~ 1$ pnMdtd in thil section." Thus. jf 1I trial court rliltd to rule on I post-tNt motion ...i thin 60 cb)'S W r tho! sentencing datto tho onoIion is d~med denied on tho w:l idh diy.

(Q,mplt: JUIIg<:> tnten Hlliena for dotfenOanl on Mardi 2. 1992. If the dtftnodanl "''ants \0 me I post-lrilIl motion. he or she m .... t file the motion within 3() d/I)'Ilflu the HlltenCt is pronounct<l 15« Rule 24.l(b), ARCrPI. Thus. defendant has until April I. 1992 [seo Rul. \.3\al. ARCrP. kiT c.alcuilliorls 01 days1 to} fiI~ his po<It·trial rootion. According to Rul. ~U. tM judge must rul. 00 this motion within &0 days afttT pronourlCl!' rTHml ofs;mlmt;f!. which WQUld plaa 1M dtadlint al May I . 1992. Iht 5i~l;elh day, f.ven iftht defendant r.lts on the 30th day. April 1st, the judge only has until May !sIlO rult on Ihe po<It-triol motion. of lh. motion is dwn"d denied. Of course. Rult 24.4 also provides tNt. if both ~rtiu ronKnl. lhe 604ay lime prriOJd litl' constnt mull Ix shown affirlllloliveiy on the rKOnI.

Ix tlItendtd;

~r.

both

~r·

Rult 24 applies 10 district and munici~1 coort pnxHdings; ~r, in district and munici~1 COUrts, the deffndinl has 14 Up .fI", pro_nee_n! of Hd!tnce \0 me I post·trilIl motion. and the coort hu 10 rult on this motion within 14 days 0( sm· ttndne. Thus, if. post·loUl motion iii fi.ld in disttict 01 munici~1 coort on the 141h day. the court must ru~ on itthllt dayor tilt motion il dttmtd dmitd.

An imllOJ\anl uaplion 10 Rule 2... applicable in ~ wlltn: a dtf.ndinllw diff.rtnttrUl and 1~lIlle cou ....1 and ",anl5 to niH In indfective assistan« of counsel clsim in 1M trial court by motion for a new trial, was recognized In €.x parle Carro. {)ewQgr>e Jaclrwn. 1MJ. 1901"38. February 28, 19911. _So.2d _ (All. 1992). In this case. defendant was appointed ont laW)". for Iht trial pnxHdings and Kntencing, but anothtr attorT\f)' WaJ appointed to r<:pn:Knt defendant on a~al. Tht 3O·day period all~ for f,ling a motion for new Irial expired wilh neilher Ihe Irial nor appell.lo counsel handling it. Th. <.:Ourt of Criminal Apprals .ffirmed Ihe conviction, holding thaI dtfendant'l claim of ineffective assistance of counsel was procedurally barred beCiust dtftmW1t failtd 10 rai.. the issue in tht trial court by I motion for new I.ia!. On appeal 10 the Suprtme Court. defendant, argued thill. when appointtd trial and a~llalt counsel difftT, and IP!"'llato COUJUtI must prtHnl an inrffreti'" as.oi$bnco 0( counsel claim via, motion for, new trial. defendint'l pn;octdural dut pr0cts5 rights art denitd if an IP!"'llatt court treats the daim u prOOO.Iunlly barml 00 appal, sinet lilt jpptl1alt courutl may oot ha~ I .tporur'1 tnnscript unlil lIfte. the 3O-dloys for <I motion lor _trial hu run. The $upumt Court creattd;on nctptioo to this rult, hoIdina." •.. if tho trial court appoints _ counsel to ...-prestnl thor dtfendlnt on 1pp01, the trial coort ....11 nok th,1 fkl 00 the tIK klion summary Jhtt\, and shall j!so OOJOIt the time within which to fi~ j motion for antW trial is ntmdtd in wch case •. ,," Thill. Ir _ty appointm COLIn.. 1fit.. a motion within 14 daY' afitT hll appointmtnt n<juOIti..,; the tollin' of the tlm~ within which to file I mollon for new trial, thon "the 31).day pt1'iod wilhln which to filt a motion for I new trial Ihlil IHI computed from the dot. the Aporter'. I",nscript t. film . , • nth", thin tht date of th. pronounctmenl of " nttnct, •• ," If)'Ou ha~ any qUO$tioru. pi"""" call .taff aUornty BOO MaddoJ~ at 1-800·392·80n or ·8078. 224 / May 1992

Tm: ALABAMA lAWYER

• M.E.M.O.R.J.A.L . S • MORRIS CWI'WS MCGEE Morris Clinton McGee passed away Januar~ 18. 1992 at Iht age ot'76. Ite 4id not like hi~ first n~me. and 10 tweak him. occuionally I would addrns him as "Morris: 1)ur. ins the 15 years I serwd on the Un •. wr$ity of Alabama's law faculty with him, he was rtferred to by most of uS .. "McCee." Hi. charming wife of 46 years, Pad4y. ,,'ho devoled hernlr complelely 10 him 4uring hi, Ite~ily debilitating illnu•. preferred ·ClinIon." By Whlle"er name. he " 'U a greal character. and one who inv.ri. ably stOod oul in any group, not b«au~ he w",. sh\YWOff, bul simp I)' btcau~ of his natural magnet ism. McGee's most notable characteristic. and certainly the more obvious. was his superior intellec\. Jlis collegiate Qrtt. Itself bears "itnn.s to thi$. FolLowing hiJ enrollment in thr School 0( Commme lot the Uniwrsity 0( Alwmao he earned eYery scholastic and ser\'Jee honor ot' any note existing at the t ime_Dun'. List, Beta Camma Sigma, Druids, Quadrangle . Ilhu Alpha Tau, and Pershing Rin.s. Aft .. being graduated with a B.S. degru in 1938, McGee entered the law schOOl where he was an academic leader among those electwto the Far. rah Order of Jurisprudence. twill never forQ.t the story h. told m. about I prac t ice court trial he 1011 while a law student. His apptal to the faculty al'!ltllate tribunal was al~ 10$t. Convinced, h",,'e>'... that both deciliOn! ,,'ere unjust, h~ did the unheard· o(-thing by appealing to the ent,re fac· ulty. who. aflu argument. re'o~ ..ed and ren<!fred tke cast. This audacity ".~ tke mUmrt of thr 1lWl. McCn carried thaI trait into law practice wilh the Sinningham finn 01. tudtr, Hill & Tenebaum an.r gradu· ation from law school in 1940. World TH~:

At.I.B.AMA LAWYER

War H inte rrupted that career. For four years. beginning in 1943. McGee se ..... ed in Ihe Army Air Porees as an assistant stall judQe advocate. engag· ing in an ntonlive trial practice throughou t Britain and weSlern EurOpe. It was during thl: laner stage 01 this ptriod that hi: pr<necutW the "Model Case" oItke £uropun Theatre "'hich latu "'as prtM:ntWlo Ike &n· at. Advisory Committee on Military Justice in 1947. The labor of McCte's life. however, began in 1947 wh en he returned to the Uni'.. rsity', Commerce School as a member 0( the bUSiness law faculty. In 1950, he moved to the law school faculty. ThaI was m~ first year as a student in lhe tn.. school. anc.! my $«. ond clau on eath Monday, Wednesday and Frida» was in Mr. McGee's "Criminal Law Class: Having piloled many hair·raising and (rightening combat minions during World War II. I belie ... d I could n.ithu be awed nor frightened. That ",as before McGet. McCee demanded, and usually rece'wd. full preparation. a'liculat e recitation and complete attention. Woe to the student. for example, who had not ust1l the dicti003ry on each unfa· miliar word. or who depended Ul'On "coolies" for his hrief, 0I~. Many a sharp p<ncil ha .... I caughl on th. fly. and aimed at me. while he gesticulated through an elqllanation. lie could, and often did. strike turo. in us and. bec.>U5I' 01 OtJr intptitudt, SGmetimt:. lost hi. temptr. But. as J had mOre courses under McC«. I realiud that il "'as his O\<ITI deep and sincere commit· mentlo our education in this most demanding profeS$ion and hi. desire that " .. should learn the discipline 11«. essary to be good lawyers that prompt. ed his classroom managemt:nt. Sure. he could be Ihort and impati.nt. criti·

cal and conltmptuous. but M ""as ilso patient. furmy and Mlpfu1. In 1M com· pluoty 0( his naturt. ke ""as aho.~ an educator_fully infonn.d on his suI>jecl.\ and ",.II-prep,ared to guide his sludents through them. It "' .. during my 15 yea .. as a

member of the law school faculty. that I came to admi .. McCet e>.. n bey<lnd the r.spect 1 h.ld for him as a teacher. He ",as a high ·standards man. both for faculty and for studtnls, II was not his way 10 use the clall' room lIS a platfonn for the rt<.IrtU 01 weial o. pOlitical ills. to rtlat. inlern~1 facully squabbl .. , or to buh COtJrI.! or j~. Of coors.. he had his likes and dislikes. professional and otherwise, bul his vitv... on such sub· jects were kept out of the classroom. He did not practico ingratiation or obsequiousness t""'ard hi~ suptrior$, ht devoted his time out of clau to the publicat,on 01 law books. to lhe work of tM IItW Criminal Code. of"'hich ke w~s chid reporter, to the Alabama Deftnder Program. and to his conlin· uing role as adVisor to many commlS· sions on law refonn. ~IcC«'1 intertsts were (atholk. For one thing, he was. great storyteller, and he loved jokes, .specially practical )olea (I have been the bult of some 01 tlltm.llle ""as an ...id collector 0( rart coons. stamps. old maps lond documents. ~nd unstamptd letter ""~ ... Ii. admired antique. of all kinds. ~lo:H'e(Mr, he had an expansive collee· l;on 01 Glenn Mille. arrangements. He often t!tICribed hilllStlf as a "pack rat: lIe Im.. led through life On his own ta lent. and hi, inherent curiOSity, qUiet enlhusiasm and firm oonvictiOr\$ mad. him truly a "man for all sn· ~ons." Then qualities and olhers cauK<! tOOse of us ",hom he taught. and ",th ",hom ke worked. 10 respect and admIre him, and to coruit!tr him a friend. AI; the old song goes: "The old friends are always the best. you see. Good pals you fond e>..,ryday: !lut they can't fill th~ plac. or eYer hO\<l't\~r.

...

Like the old fnends oljUterdiy."

Goodb)...

~'cC«. )'01.1 rna(it

our tn.,

dtgretS. and our li-= worth",toilr.

-Sam..t fJeal/ll AJ.wdote Justict (",tired) Alabama Supreme Court May 1992 / 225

• M.E.M.O.R.I.A.L.S • CHARLES S A."I UEL PRI CE Whereas. the Mobit~ Bar As5ociati(w notes with regret the death in Mobile on f'ebruary 9. 1992 of mem_ ber Charl es Samuel f'rice. Now. there fore. be it resol,'~d that Charlie. a. affectionately known. was bo rn in Evansville. Illinois. the 50n of William DeHart and Parlhenia Rou Price. fle obtained hi. I"", degree from the Uni,..,nily of Alabama Schwl of Law in 1933. the Same year he began his practice in ~Iobi le with Curtis ~Ioody. and his membership of 59 ,'e.rs in the Mobite Bar Association and Alarom. State Bar. flis marriage to his devoted wife, Alma Dunn. as well as his legal career. were interrupled by World War lJ and his sorvic< as a naval officer. fl. "ti"d with the rank of U. Cornman-

,,,

On his return 10 Mobile and privale practice, h. distinguished himself by son;"lI his prof.... ion and his COmmunity in many admirable ways , For several years he chaired the Mobile Bar Association's Law Iby ceremonies, for which he r«ei\'l'd a commendolion in 19S4 from the American Bar Association. flis community sorvices included the presidencies of the Civic Round Table. the Catholic Maritime Board and the Civitan Club. Among his many add it ional honors. we note his com · mendation in 1956 b}' Ihe federalgov. emmel'll for his services in helping to eliminate the problem of stowaways in the Port of Hobile. and his ap pointment in 1958 by President Dwight D. Eisenhower to temporary federal service in Vienna , Austria for assistance to Hungarian refugees seeking political asylum in this country. Although a member of Trinity Episcopal Church, he .150 gave of himself OJ; a former member of the boa rd of stewards of Dauphin Way United Methodist ChurCh. 226 1 May 1992

Pollowing World War II. he rdurned to Mobile and briefly opened his law office as a sole practitioner. leaving that pursuit to begin a new care.r which lasted for 36 years as a member of the Federal Dtpartment of Ju.tice. Immigration S.rvice Div ision. Charlie's skill and experti~ in the field of immig'ation WOJ; recognized throughout the ar.a, nOI only for its soundn .... and reliability. but al50 for the cordial and generous sharing of his knowledge and skills with his colleague •. In the passing of Charles Samuel Price. this association "'dly acknowledges the loss of a re.peeted brother lawyer and cordial friend, H. was a devoted husband and falher. flis many contributions to his profession. country and community qualify him as most de~rving of our graleful recollections.

- Je.-ry A. NcDouoe/l

/'resident Mobile Bar ;V;.wcialiQn

RALPH K E!,;Nk 'lER Whereas. Ralph Ken namer, a resp.cted and distinguished m.mber of the Mobile Har Association. died February 17. 1992. and Whereas. this association d~i re. to reeord this memorial of our coll.ague and to publicly recognize 50me of the achievements on his professional car«r, Now. therefore. bt< it resolved that Ralph Kennamer, born in 1910, did his undergraduale ""Ork al David Lip-scomb College in Nashville, Tenn ..see and graduated from the Uni · ,..,rsity of Alabama School of Law in 1935. For many }'ears he worked in various capacities in the federal judi. cial .ystem in the Middle District of

Alabama. with and under the direction of his falher, Ihe late U.S. Di.tricl Judge Charles Kennamer. Ralph also practiced law in Nontgomery for several years bt<fore being appointed U.S. Attorney for the South~rn Districi of Alabama in Mobile by Presi· del'll Eisenhower in 1956, serving in Ihat office until 1961. Thereafter, and until 1991. Ralph practiced law in ~lobile. during which time he sen..,d for s~eral years as city attorney for the City of Hobile and laler as city attorney for the City of Prichard. Ralph Kennamer was a quiet per5On. pOMe...d of. keen wit and sense of humor. fle waS also a student of polities and extremely "..,n· wrsod in history. He enjoyed speaking informally to groups on subjecls upon which he waS particularly well· informed. fle remains acclaimed around the rederal courthouse in Mobile for his exlraordinarily .ffecti.... dosing ..gumenl, to juries in crimi· nal caw;. In 1%0, ..... hile U.S. Attorney. wh~n phr,ically Ihreaten.d by an . rmed mental pat ient at the federal court · houS<'. he had the pre~nce of mind ~nd the fortitude to " ... stle the man to the floor and take his ..... upon away. thus pre .... nting likely physical harm to himsolf and possibll' others. Our coll •• gue i. survived by his wife. Linda Tew Kennamu. three daughters and t,,"O sons, five grandchildr~n. and hi, brolh.r, Or. Rex K.nn.mer of Beverly flil ls , Califor· ni •. Wherefore. be il re50lv.d by the Mobile Bar Association in regular meeting ~ssembled on February 21 , 1992. that ,,'e mourn the death of our distinguished col league. Ralph Kennamer. while we nole with pride his sorvice to the public and to Our pro-. fe"ion and his ach ievements and accompli,hments spanning a leg~1 career of 57 years. - Jerry,t ,1/cDo<L'ell

President Mooilc Bar Associ(1lkm

• M.E.M.O.R.I.A.L.S • 1J-.'\\lS VERSOS CHESSER

CHARLES SA,'IUEL

P RICE

Andalusia

Mabile

Admilled: 1930

Admilloo: 1933

Oled: November 18. 1991

Died: Ftbruary9.1992

1l06EIlT TI~OTflY COX

Jom; ANDREII' R;:VNOIJ)S, JR.

Anniston

IIwtlSliille

;\(/71111100: 1980

Admitltd:

1948

Died: Oct'"' 7, ]991

Dkd: March 8. 1992

W IU.IA.'1 Q\;ll<ITOS KESDALL

JOE STARNES, JR.

Sd=

GUII/<!TSt:ilk

Admit/ed: 1966

Admillro: 1947

Died: January 24. 199'l

f)ied:

March 3, 1992

RALPH Kr:NNA."'~R

LEVIE BURDESHAIV Sn:PIlf:NS

Nobile

MOIII!1om;:ry

Mmilled: 1935

Admit/ro: 1950

Died: r.b ......!)' 17. 1992

DWd: April 6. 1992

W IUJA.'I

E.oo. MCG RIff.

ROOERT BERNARD W1IJilSS

Annis/on

Moo!l/!

Admilled: 1972

AdmillM: ]9.18

Vied: December 31. 1991

Died: Ftb"-"''Y 20. 1m

NOTICE The members of the Alabama State Bar are cordially invited to the dedication of the Frank M, Johnson, Jr, Federal Courthouse in Montgomery, Alabama, May

22, 1992 at 2 p.m, Special guests will include United Slates Supreme Court Associate Justice Anthony Kennedy and members of the United States Court of Appeals for the Eleventh Judicial Circuit.

THE AlABAMA u.wn:R

loLly 1992/ 227

THE STATE OF ALABAMA JUDICIAL DEPARTI>lENT IN THE SUPREME COURT OF ALABAMA March 27. 1!192 ORDER WHEREAS. thi Board ofCommi"ioners of the Alabama State Bar has recommended to this Court that Rule VII, Rules Governing Admission to the Alabama State Bar. be amended: and WHF.RE.AS, the Court has considered the recommended amendment and considers that amendment appropriate; IT IS, THEREFORE, ORDERED that rule VII. Rules Governing Admission to the Alabama State Bar, be amended to read as fol· lows, and that the form a~nded to this order be adopted for use with this rule.

~AD"I SSIO:'I

OF t<;O:"RESIDE1I.'T A'MOIU,EVS PRO HAC VICE

"A. A~anna or Counsel Pm llac \"fC<! Permitted An attorney or counselor·at·law who is not licensed in good .tanding to practice taw in Alabama, but who i. currently a member in good standing oflhe bar of another state, the District of Columbia, or other United States jurisdiction (hereinafter called a foreign attorneyl and who is of good moral character and ""M is familiar with the ethics. principles, practices. CllitOms. and usages of the leg!ll profmion in the State of Alabama, ma)i appear as counsel pro hac "ice in a particular case before any court or adminislratw. agency in tilt State of Alabama upon compl iance wilh this rule. For purposu of this rule. an administrative ~ncy is any board. bureau. commission. department. hearing offiar. or other admini~ trative office or unit of the state. "B. F...,.;gn Attorney Appearing Pm Hac Vi« Subject 10 Local Juriodiction A foreign attorney appearing as counsel pro hac vice before any court or administrative agellC)' of the State of Alabama shall be subj«t to tilt juris· diction of the courts of this state in any matter arising oot of tilt attorney'S conduci in luch proceedings. The a\lorney shall be familiar with and oomply with the ,tandards of professional conduct requi red of members of the Alabama State Bar and ......11 be subj~ to the disciplinary jurisdiction of the courts of this state. of the disciplinal)' tribunals of the Alabama State Bar. and of the Board of c.:.mmissioners of the Alabama State Bar "'ith respect to any acts occurring during the course of the a\torney's a~arana. TIlt judge. hearing officer, or agellC)' lfIIIy examine the fOTf:ign a\lorney 10 satWy the oourt. offIcer, or agency that tho foreign altorney is aware of and will observe the elhical,tandards required of attomeys in this state. 11 the judge. hearing officer. or agency is no! satisfied that the foreign attorney is a reputable attorney and will observe the ethical standards required of attorneys in this state. the court. hearing officer. Or agency may in its discretion revoke the authority of the attorney to appear. Dcept as prO\.ided in Section I below, no foreign attorney is eligible to appear as COIl"",1 pursuant to this rule if thaI attomey (al in reli<lent of the State of Alabama. or (b) is regularly employtd in the State of Alabama. or (c) is regularly engaged in substanlial business. professional. Or other acti,iti" in the State of Alabama.

"C. Auoo;l' tlon or Local COlln101 No foreign allorney may appear pro hac vic. before any court or administrati'.. agellC)' of this .tato unlo .. Iho allome)' has associated in thai cause an attorney who is a member in good standing of Ihe Alabama State Bar and who maintains his or her principal law office in this stale (here. inafter call.d local counsell. The name of local counsel shall appear on all notices, order!, pleadings. and other documents filed in the cause. Local counsel shall personally appear and participate in all pretrial conferences. hurings, trials. and other proc«dings conducted in opon court. unle" sp«ifically excused from such appear· ance by the court or adminislrali,.. agency. Local counsel associating with a foreign attorney in a particular case shall thereby accept joint and st1... ral responsibility with the foreign allorney to the client. to opposing parties and counsel. and to the court or administratiw agellC)' in all mailers arising from that particular cause. "0. Verified Applialion In order to appear as counsel before a court or admini'trative agency in this stale, an applicant shall file with the court or agency where the cause is pending a verified appl icalion for admission to prattia (a form for such an application followl this rule) togeilltr wilh proof of service by mail. in accordance 228 1 May 1992

THE ALABAMA LAWYER

....ith tM Alabama Rules ol Civil Prooolure. ola copy ol the application and ol the notice ol hmiJ1fl UfKll1 the Alab.uni Stite Bar at its Montgomery. Alabami. offict. In the ewnt application is made brio~ Uly defendant in an lCIion his appelrtd, i copy olthe ipplication ind noti~ must also be seMI! UfKll1 suc:h defendant The copy ol the ~Iication ind the notiee ol harinll sef\'fd UfKll1 the AbbIoma Stitt: Bar wI] be ~Ied by a nomtfuno.W!lt $100 llIing ftt. The noti« 01 haring wll be (1Ym ~ Itill. 21 dI:yI. btIon: the time designated lor the harina. unless the .:ourt or igtncy his pmcribtd i shortn period. tn (rimin.1l cast:I iRYOlvinll indigent defendIIntl, the eooT! or ,,*ncy may"'lIM the filiRJI/tt ind noti~ uquiumtnts for good caust shown. "\lfKll1 uceipt 0( any ~Iication for admiuion. the Alabama SUIt Bar shall file with the eoort or Olgtncy and Krvt upon all counsel of ucord. or upon Uly parties not representtd by counsel. and UfKll1 the &pplicant. before the scheduled hearing date. a statement indicating whetMr the applicant or other anomt)' members 01 the firm with "'hich he or she is usociated have prtviously made any application for admission, the date 01 such application, and whether it was granted. No Ipplication shall be grankd before this statement of the Alabama State &r hall b«n filed with the court or ~ncy. Once this statement is m:eived, the court or administrativt ilIleney sh.lll iss~ an order granting or denying the application. A copy 0( • .."h or<kr granti", or denying an application sh.lll be mailed by the local counsel to the Allobill\i State Bar at its Montgomery, AUNII\i, office. "[ . Form of Applicatloo The application ~Quirtd by this Rul< WlI be on a form ~ by the Alabama State 8.I.r (I form lor such application follows this rult) ind wl1 stite: {I) tht applicant's ruidmc:e; (2) the.:ourt or courts to which the ilfJJIlicant his b«n ildmintd to pf¥ti« and. tht date 01 ildmission: (3) tNt the ilPPlicant is i member in good SWldinll 0( ouch court or eoorts; (4) tNt the applicant is not currtntly ~ or disbonnl from pt'llCliee in iroy eoor\; (5) the titlo of the court and cause In ..tlich the applicant or any member 0( the finn ol itlOmeyl with which the ipplicant is iSSOCiited his /il<d an ipplication for idmission ill counsel under this rule in this slile in the PTe<:eding thr« years, tIK dIIte ol e",h application. ind ..ilflher it was granted: (6) the lllme. ~du"" and telephone number «local counstl,"'ho il attorney ol record: ~nd (1) the name of taCh party and tIK n.o.me and add .... « oou"",1 of record who appeared for that party. -lie (ore any application i5 granted, local cou"",1 must or COO$fnt in writing to the """,iation.

ap~ar

as attorney

rKoro in the particular caust

"The Qranting or denial ol an appIk.ation for admiuion ... CQllll.stl ptlmlant to this rule is ~iscutionary with the eoort Or administrat;"~ Olgtnc:y btfort which the applicalion is ma.de. Ab5mt SjXCial eir(\U'J\s\itICts, repeat..! ~ by any person or firm or II\omty$ pursuant to this rule shall be caUK for denial of an application. In any case whtu the fouiJln ~tomty has enlfrtd an ~~~ pro Not vi« in 5 cast:I within the prtttding 365 Illy$. the court or lIdministratiYt 0lgtnCy wll uarnirlt the fouign attomty to establish good ~ lor ICtOfIiing sud! privilege, including fact.s or cin:unutances ilJtctillllthe pmcml or financW ,."Ifl~ of the client and not the ~ttomey. Such IKb may include, but IU not limited to, thelollowing: (I) i showing tNt the cause ilNOMs a compitt fitld of Law in which the Iomgn attomey is I sp«ialist. (1) i icJr'II-SWlding attomey·cIient ~t,tiorWlip, 3) lad< of local COUIlStI with aptrtist in the fitld illYOMd. (4J the aisttrICt 0( Itgal questions invoMllIIlhe Law of the Iortign attorney's home jurisdiction. or (5) the need for UlenWt discovery proatdings in the ~ign jurisdiclion.

"In the event vtnut is tramferred to another court or agency of Ihis SUle or in the ewnt tIK Iction ;s a foreign attorney authorized to appear in a cause pending befort the courl or adminlstrati\lt ilIlency wheu venue ... as originally set shall be deemed admilltd to lhe court or ilIlency to which Ihe cause his been tram/erred or apP'I'alM: p(OIIided, hO"'''lIer, that tht court or ilIl' ncy hailing jurisdiction Oller the tram/erred or ~pptlled ,lust may, for good cause, uvokt tIK authority o( tIK foreign attorney to appear. appeale~ ,

"F. In illal Appunnee Eld on Appellate Court tf the appearance by the foreign aUOI'rltY in the /im imlin« wll be on ipplication btIon: an ~It,tt eoort of this SUtt, the application for admission shall be in tIK form IKTdofort provided lor other courts. 11 the ~liCilion is opposed, the ~It,te court sNJl conduct i harina: othef\<I'iK, tilt matlfr may be oonsidertd Ind ruled upon the ~Ilate court without I haring, -G. Quant r!y Rf'pOrt The ExtcutM Director of tIK AUNII\i Sute lIu wll prepau a Quarterly report list· ing allapplicatioru filed during thit Quarter and during the pre<:eding 12 months and listing the names of the applicants and whether the awlication "'''' gr.lnted or denied, The uport wll be transmitted to the clerk of t",h courl, each circuit and district judge, tM ,Itrlc of tIK Supu"", Court of this Sute, Ind to Juch other per· soru uthe Board of Commi.. iontrs directs. THE ALl.B.A."IA LAWYER

May 19921 229

"H. Suspenlion Or Di,lHonnent Tenninales Penniu ion To Appear Pro

H~c

\i«

"(I I Permission for a foreign attorney 10 appear pro hac vice under the provisions of thi' rule shalt tonni· O/It. upon thai attorney·, swpension or disbarment in any jurisdiction in which th~ foreign attorney has been admitted. The fortign attorney ,halt ha .... the duty to promptly report 10 the court Or adminislrati .... agency of this state before which the attomey i. appearing any disciplin,lfY action that has been taken against the attorney in any other jurisdiction.

"(21 In the ..... nl local counkl in a particular cau i. suspended or disbarred from the practice of law in the Stat. of Alabama, the foreign altorney ,hall, befoT< proceeding further in the pending cause. associate new local counsel who i. in good .tanding to practice law in the State of Alabama and file a .... rilied notice Ihereofwith the court or admi nistrati'~ agency of this .t..lle before whom the foreign attorney is appearing. "I. Excoptj()n. "(I)

Nothing is this rul. shall be con.trued to prohibit an;' attorney from appearing before any court or agency of thUs state on hi5 or her indi,·idtllli behalf in any civil or crimil\ill malter.

admi nistrati,~

"(2) Attorneys reprtknting the United States Government in matters before the courts or administrati .... age""i •• of this state .hall be permitted to appear on behalf of the United St..lte. Government and to repr ..ent its int.... t in any matt.. in which the United Stat. , Governmenl i. interuted without Ihe association of local counsel.

"J. Enforcement "(I) No court clerk Or filing officer of any adminUstrati .... agency of this .tate shall accept for f,ling any pleadings or other documents from a foreign attorney who has not complied with the reQuirements of this rul •. Any pleadings or other documents filed in violation herwf .hall be .tricken from the record upon the motion of any party or by the court or admini.trati .... agern;y Stili sponte.

"(2) The courts and administrati .... ~ncies of this st..lte shall ha .... the duty and authority to enforce the pro"isions of this rule by denying violators lhe right to appear. II a foreign a\torl\£;' engages in prof."ioO/lI mis· conduci during the cour.. of an appearan,". th~ judge or the hearing officer of the ~dmini.trative agency l>efo~ which the foreign attorney i. appea, ing m.ay revoke permission to appear pro hac vice and may cile the attorntY for contempt. In addition. the judge Or hearing officer .hall refer the m.aUer to the Disciplinary Commission of the Alaba!"TI/I State Bar for appropriate action.

"(3) Violation ofthi. rul. Us deemed to be the unl ..wful pr~clice of law. The Alabama State Bar or its desig· nated commissioners shall have the ri"ht to take appropriate action to enforce the .. rules under the provisions of Code of Alabama 1975. § 34-3-43. "(4) The provisioTlS 01 this rule shall be cumulative 10 .11 other .tatut•• and rules providing remedies against the unauthorized practice 0/ law within the State of Alabama.

"K. Ef(edj,~ Date Thi. rule shall become effective on October I. 1m. Fo~ign attorneys now appearing pro hac vice in cauk.l>efo~ the courts or administr.ti .... agencie. of thUs stat. ,hall conform to the.. rules in pending proceedings not later than 30 days following the eIfective date of this rule.

Hom.by. CJ .. and

230 / Mayl992

~taddox.

Almon. Shores. Houston. Steagall, Kennedy, and Ingram. JJ .• concur.

THE ALABAMA LAWYER

APPENDIX

Pb.intiff ~

Def~ndant

Court or Adminislnlivt Agtncyl

\"£II II' IEO APPLICATION 1'0 11 ADlII lSS ION TO PRACTICE UNDER RULE VII 0 .' TilE IIULE S CO\'EIININC AD.'IIISS IOS TO THE AIABA.'IlA STATE BAR

eoo..

______________ . ptlilioMr

I.Pd i tioMr~~il

he~;n. MId ~sprctfu l ly r~prtMnlJ the following: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ __

Stl'ftt AddfUJ Cily

County St.'Ite

Zip CocIt

Ttlf1lhont

2. Pditiootr is In It\Omry Ind I member of the IIII' firm of _______________ ____ • wilh OmC ..

II _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _~-~~-----------------Street Add.eM City

Counly

SUt.

Zip CO<k

Teltp/lont

3. PditiooH has bftn rtblnod pt......wly or Ai' .... mber 01 the ailoo:Jw·namtd ~ firm by 10 provido IcgaJ in coonKIion with lhe ailoo:Jw.wlitltd m.ltler now pmding befort the 1Ibovt· ~ftrm«d court or idministntiw ~ of the Stite of AWwni. ~prtHIltition

• . SillCt court of thtc Sl.>te of

of]9

• ptlitiontr has 1Iftn. MId prtMntly is. a .,.,.mIltr 01 \IOOd slindi..., of the Bar of the highest , .... he~ pttitiontr regubrly practices law.

5. Petitioner Iw been admitted 10 practice belort the following courts: ILi51 all of the following COUrt5 lilt pttiliontr Iw IIftn admitted to pr.ICtke befort: United Stat.. District Courts: United States Circuit Cooru of Appealt: the Suprtme Court of the Uniled Statrs: and court.l 01 other ltates,1 Court:

Dale Admitttd:

Pdiliontr is prtKnt ly , member in \IOOd mlldillll of lhe Ban of tllllK courts listed iIxM. octpi lIS r'IU)' be listtd below: IHert li,1 my court twntd in No.5 thai the ptlitiootr is no looger admiUtd 10 practict befom.1

6. Pd itiontr pUKntly is not subject to any disbinnenl procttd ings.. n«pt Ai providtd below (1M poorticubn . •. g., jurisdic· tion. court, date ):

THE AlABAMA I.AWVEII

May]992 / 231

7. Pelil~r praently if not lubj«1 to any fU$p(ruion procttdings. ~ ill pTOYidtd below (givt ~rtkull.n. e.g.,jurisdic· tion, court, date):

8. Pdit~r nM'r has btm $Ubjed to any disbannent lIfOCffiIings. ~pt as proviI,Itd below (gn'f ~rticulon. e.g.. juris· diction. date 01 prO«-tdingJ. coort, date 01 I"l'irut.lltemmt):

r.ever has bftn .ubjKt 10 any Iwptruion proeHdings, except ill pTOYi<kd below (Qivt ~rticulan. e.g .. jurisdiction. doIte of proceedings. court. date of reiNUttmtnll:

Ptt il~r

10. Petitioner Ilot\>tr has had any u rtific.a.te or privilegr to aPl"'~r and prKt;'e befem: Ill)' rtQulalOf)' Otdminislralivt body Of rmlktd. txCepl ill provided below Igi>'f ~rticull.n. e.g .• dale. administralivt body. date 01 swptNion and ",instate-

stISI)mded mmt):

II. Pditioner. either by resignation. withilf3WIIl. or othtrwist. nt\'fT has ttrminattd 01" "tttmpttd to terminate pttitioner's offICe ill an al\omry in ordn to avoid lKIministn.tivt discipli .... ry. disbannenl. or .JWPtfI'ion proemi"".

12. Petitioner or .. mtmber of ptlit~r's firm has filW applic.a.tion(s) 10 appear ill" coutlSfl under Rule VII during tilt pUt thrtt (3))U" in the following mattt'" Date of Applic.a.tion

COurt or Admini$trati>'f Body

Will Applic.a.tion Granted or Dtnitd?

(If r"lf«Wry. plU$!! altxh st.Jltmml of .&IitioNl appIiations.) 13.1..ou1 Counsel of record lor pttitioner in this INlier is _ _ _ _ _ _ _ _ _ _ _ _ . who Iw off..:u al

StrHt Addm5 City

County

'""

Zip COIk

14. The followi ng accurately rtpl"l'stnts the namu an~ ~ddl"l'5WI of each party in Ihi~ m/lllu. WI tETII ER OR NOT REP-

RESENTE\) IlYCOUNSEL. and tilt n.I.JTIe$ and addresses of each couru.tl of record who apptared for Solid parties: Name of Party Mliling Addre"

Name of CounHI

2:12 I /ob y 199?

TH £ ALABAMA ~WYER

IS. Ptlitioner agrees to comply with the provisions of the Alabama Rules of Professional Conduct of the Alabama Sblte Bar. and petitioner consents \0 the jurisdiction 0/ the courts and the disciplinal)l boards of the State of Alabama . 16. Petitioner respectfully requests to be admitted to practice in the above·entitled court Or administrative agency for this cause only. DATEDthis _ _ _ _

"',oI _ __ .19 _

PETIT10NF.R

I hueby conunt. as Local Counsel of record. to the association of petitioner in this cause pursuant to Rule VII of the Rules Governing Admission to the Alabama Sblte Bar.

DATWthis _ _ _ _ dayof _ _ _ _ .19_.

COUNSEL OF RECORD

"~~":O~'~==~'

COUNlYOF I.

}

do hereby swoar or affirm under penalty of perjury that the il5Urtions of this al'lllicalion are true:

That I am the petitioner in the al>ol>e·ent itltd matter. that I have read the foregoing and know the contents therwt": tllat the same is true 01 my own knowledge except as to those matte .. herein stattd on information and belief. and as to those matters I beliew them to be true. PET ITIONERlAH"lANT

Subscribed and SWOrn to before me this _ _ "" of ,19_. NOTARY PlJBLlC

NOTICE OF HEAR INC The al>ol>e and foregoing application is set lor hearing before the court Or administrative agency appearing in the style hereof on ,., _ _ dayof .19_ .

Pf.TITIONERlAFFlANT

CERTWICATE Of SERVICE ! hereby certify that I ha"" served a copy olthe above and foregoing upon the Alabama State Bar by mailing a copy to Ihe same al the following address: Alabama State Bar. Attn: PHV Admissioo. P.O. Box 671. Montgomery, Alabama 36101. accompanied by my check in Ihe amount of$IOO payable to the same on th;" the day of • 19

Pf.TlTIONERlAFFIANT (Form al'llroved by Alabama State Bar. 1992.) TIlF. ALABAMA lAWYER

May 1992 / 233

PROFILE NINA MIGLIONICO BY SAMUEL A. RUMORE, JR. Nina Miglioni,o is my law partner. Thore of us who ha,-e law partners know that this is a special relatioruhip. It in<;ludes being a coll.ague, confidante and friend. Because of the differtnce in our ages and experience., she ~ also been my men · tor in tlw: law. W. have practiced law together now for almost 18 years. but that does not even cover one-third of her more than 55 ~.rs as a practicing altomey. The Alabama LaWgeT ..,k.d me \0 prom. Miss Nina. 1 was told that she is probably the longesl practicing woman allorney in the histo!), ofth. SUle of Alabama. J would say lhal this I/ivu her "living legend" status. So whal 00-,0 one say about a "living legend"? I know many thing, about her from pe.50nal uperienct, but he. invol"."",nt with the law precedes my own by almost fou , decadu. Some

,..,search was necessary. Nina Miglionico was born in Birmingham 10 Italian immigranl parenls. Her ralher ran a delicalt$Stn. and from her earlieSI days Nina worked in Ih~ family store. Nina was always a good sludtnl, and twke was double·promol· ,d. Sinc~ the lamily lived in Al'Ondale. she attended Woodlawn High School. There was n.... r a doubllhal she would enter college. In faci. her lalh.. lold her Ihat she could do anylhing .he wanled 10 with her life. provided she finished college first. She enrol led al Howard Coliege. forerunner 10 Samford Uni""rsily. then located al Easl I.ake. Her home was on Ihe streelcar lin. to the roll.g~. James Su lzby. in his definili ... history of Samford Uni ... rsi · ty. noted lhat in ]932 Nina Miglioniro participated in a Girls' Gle. Club concert where she played a piano solo. Music and Ihe piano haw always b«n importanllo Mis.. Nina. Her lath.r was a viOlin ist belore he married. an uncle was a uni'l'trsity music profeuor. and other relatives played in orchestras. Her mosl cheriShed pasttime. besides reading, is listening to <>pera. (I will tell}'Qu more aboul her love 01 mll.\ic.) At any rale. her years at H""'ard Coliege wer. productive. Subby recounted lhat she held the highest $Cholastic awrage in her class. II was at this point in her Iii. when Nina made a decision. She was brighl and she wan led 10 do something wilh her HI• . She wan ted to become a lawyer. !Hlpile the fact lhal she only a 19·year-<Jld girl. only S9 inches tall. and with a diffLcult-Iopronounce last name (Mi11 ·y<m ·i·co; the · 8" is .ilent). she 234 1 May 1992

enrolled with Dean Farrah at the Uni""rsily of Alabama School of Law. She was Ihe youngul member 01 her d .... Manyapocryphal stories exi5t conaming lhe ventTable Dean farrah. but Mis.. Nina h.. told one story that I lound to be quite amusing. One day Dean Farrah Saw the diminutive I«nagu and said something to the effect of. "I undersland that you play in the University Orchestra." "Yes. sir." she said. "Well. Mis.. Miglionico. perhap5 we are not keeping you bus;' enough here at Ihe Universi!),. Law $Chool is a place to work. not play." In any evenl. she kepi alive her IOvt lor music as Wfll as for law. She even lound time to . am money leaching piano. There w~re five "'"Omen law students in Ihe Alabama CI... of 1936. It should be remembered lhal al thi. lime many law schools did not .... n accept wOmen stu· den15. And during the Depre5Sion. oppor· luniti•• Wfre not so promising lor any law school graduates. be they male or female. Three of the women students accopted positions with the federal i/OY. tmmenl. One of these rose 10 the posi . lion of senior judge On u.. United State5 Tu Court. The other wOman graduate practiced law with her husband. also a claS5male. lor a number of years and then went inlo banking. Only Nina began a law practice and stayed with it Ovtr the

"'".

The early days in her practice were certainly a struggle. taw firms were nOl hiring women. The only offer for the }'Qung, short, lema Ie. Italian . Calholic attorney with. diff"ocult· to·pronounce la.1 name WM that of a secrelary al SIS per ",·eek. if she could type and learn shorthand. In tha! first year Nina joined with Robert Gordon. a founder 01 t<>dais Gordon. Silber111.Ul firm. in a space·.haring arrange· men\. They decided lhat as lawyers Ihey could either ·starve" .separately or together. They chose Ihe latter. They shared a desk in a private office wilh a reception area. Whenever she had a clienl, he would lea"" the room. and ,ice '·ersa. Late r. Ihey hired a secrelary. One week he paid the salary. 111e next Wttk. she paid the salary. Many nights Bob ate dinnerwilh Nina and her paren15. With delerminalion Nina worked hard an d her practice began to grow. Then World War 11 inte",en. d. When the "drali" was iniliated in 1940. she look Ovtr Ihe practice 01 a }"Oung lawyer who was inducted into Ihe anned loreu Later. when another }'Qung la~r wenl ofl to war. she took Ovtr his THE AJABAMA I.AWYER

UKJ to Ioif~g~rd hi. prKtic~. Ol,l. in, this time thl: word "vaation- was not in hr. YI'loabul.lry. Nillll pined 11 fine ~putalion MId wu I ll.ird worker. SlIt tIN II/fmDI pooi« thaI trfllllwiud W mlItttn. ruJ estate

as" city offICial paTllimt. ~ demands d Birmingham In those tirly days d ~ couroc:il wen great. but as Birmingham PDst·Hnold rtpOTltr Ted Btyant said in ill "rticlf: lIlhe timt d her ntinmenl from the council. she helped to change MId prOb.tlt ~. Slit acquim!a loyal clitnttle. She was partieBirmingham. In 1963. Birmingham .... as koown for police dogs. fire hosn "'''-Tly inlutsted in .......,.,....n·s wut$: Sollaries based on quahfi· and I"lIciil demonstl"lltions. Miu Nil\ll pl"Q'\lided leadership that ations, nol Ctnd..: unifonn diVQrce law; married women's helped citi~ens of Birminghim work together in solving thei r pr~rty rights: jury ~rvice for women; and equal political rightJ with men. She made spetchu in all of Alabama's 67 problem$ with maturity, vision and good judgment. She counties and in many ltates. ruched out to all ..gmenlS of the community. and she was Nillll btamt i~d in II numb(, 01 oreani.z.ations. n....., not afraid to SptaIc out in bbck churches as well as at mw· includtd tht AbIwn.. F.dmtion of Businw and Profession.ll Ings ...i th ""hitts. IItT oulSpokenne56 _ not without some risk. CI"tI6IU were W<)nItn'. Clubs (BPW). the AIab.unlI Women L,ao..·ym Associ.l· lion. the Zonu Club. ilIId the Ammcan Associ.otion 01 UniYer. burned in her )"'Ird. The", were phone threats. A bomb was placed on her front porch. but her bther disro.>l:rtd the bomb lily Wonw:n. Throogh hoT adiviliU. wetd'!H md writin,gs, a numllt. of .... Iabam.l IlIws we •• changed. inciuding allowing and ~d il. ~ firt marshal Mid that her father ·could haw Ixen turned into a pat of bUlltr. " 11owe""r. she continued her women 10 KM on juries in Alabama. In 1958 lh. was honored by htr pun when she was ( I(clt<! service to her city in the same ftarlen .... ay. Again, as Ted pmident <i the National AMoci,tion Ii WOmtn Lawyers. This Bryant stated in hi. article. the original COlIncil"accomplishl:d their goal. often through ptl'S()l1lIl SiCrifice as 0pp!,I3.ed to per· was a Irtmt~ ""hiewn"!"t U $he bffiomt Imown btyood sonaI lI,.Iin." Birminll.ham and AI~b~m'. In the Women Ltltqtn Joumol $he ...-as glowingly deJcri~ Miss Nil1ll HMd as chair of ~ Birming· as follO'o<l'$: "Nil\ll />I iglionico. the new prni· him Park and Recrntion Board. and from 1979 to 1981 she Hrwd as the first woman denl Ii the N'tiol\lll Auoc:lation of Women he only offer I..lwyfr$, i$ a humm dyrwno. Only 5 futllil. president of the Birminghim City Council. shf alone has the SKret for perpetual motion. (or the young, She was lltoO the first woman president d the but what~r shf does. she clots SO I'try well. Alabama Lugue of Municipalities. She She has all the qualifications of leadership, i. retired from the llirmingham City Council In I organi~r, presides .... ith gn« and dig. 1985. At the timt Ii this retirtrntnt she wrote to nity md is blt~ .... ith good health and I tint citiuM of Birmingham. "I hope it can Ix the KIUe Ii humG!'. was thai of a secre~"lth all Ii her Illtnts UId honors. Nil\ll i$ said that 1 P\avt HMd the peopltofthi$ com· g.,ciOl.ls and unauuming, IOft·spoken and lory at $15 per week, munity with intell.rity. independence. and good humor." An t<!itori.ll in USjIOO5e to her dignified. She thinh strlill.ht. works h... d. if she could type and letter slated Ihlt "perhaps more thin any pl.l.ys fair md interprets life in truth. beauty. public official of her era in this Uti. Nil\ll r&lity. frudom. and efficiency. learn shorthand. ~ rntmbm Ii the National Auotiation Ii Miglionico hn bten I voice of .tatoOn l nd Worntn l~wyt l"J can look forward to I succus· stlfle"nt"." ful and harrno)ni(IUJ )'tar ...." A few yurs lII,O Mi" Nina wrote rot, note Her yur as president .... as a good one. but il .... as only I thit I hi"" savtd. It says a lot ibout her r«lings and her phi· btginning. She ...-as elected in 1959 to H~ ll'o<o'o-)'Ur tum in Iosophy. I ""-rt an e:<Ctrpt with you now: the HOOK Ii Dolegatn Ii the Arnerian B.l.r Auoti.otion, and "I hope you ha,.., lound our worki"ll",latiomhip duri"ll the contin~ her work for the Irg.al profwion. She ...-as appoinl· past)UTS as pleasant. enrichillll,. and satislyi"ll as I haw. You ed to the Citizen's Advisory Commill« to the Commissionrr 100 know thaI I "",nt you to contintlt to bt 1 great law)'rr. Ii InteTIIIII Rev!nut. and Prailknt Ktnntdy appointed her to ptrs(ln.l.11y mrichrd by your work. and contributing 10 the life of your community. All of this is the basis for individual the PrtJidential Comrni.. ion on the Slltus of Women. BUI. she ....as lltoO "bit" at this timt by the "political bug: and her gfO\<o'lh and ~IO\lrntnt. and • good. producti,..,. and happy lile." grutest public contributions were yet to COrnt. In 1963. Birmingham was in the midst of 8r~at changO!. Certainly .h. has liVl'd this philOSOphy to the fullest. ~st dwlJlt;$ we", soc;"1 md pOlitical. A new form of gowm· r hive nol rtcounted many of the W<'lnderiul ,torin that could k told cCJnCl:ming her private liw prattice O'o'e r the last rntnt optned the opportunity for Nil1ll to prxtice what she hid b«n prtaChing for toO miI1)')'UB. She had told women O'>l:r the hilf cenlul)'. Hu caretr has Ixen the tqui,... ltnt of a family doc:tor. _she now repramlS the grandchildren d her early )'UTS to Iitl illllOlved in politia. and miI1)' of her friends oow recruited her to ron lor the nt'N Birmintham City Coondl In ditnts who hr....~ with her O'o'e r the )'UB. She has bun the primary election she finW!ed third out d 7S candidates. Sht a wiH. faithful and compwionatt couruelor to lit.rally thou· MIIds d J)(I"SOOS. Todiy Miss Nil\ll is still _inll, clitnlJ on a tooIc her Hat on the origil\ll! couroc:il. and won rt-eiection in daily basis. Her health iJ good, and she loves to tral'tl. pllTlicu· 1965. J969. 1913. 19n. and I98J. HIVing her cit» for O'o'er 22 llrly O'o'er~ ... And. $h~ enjoys ruding. li,ttning to mUlic, pol· It w.u difficult and a challenge to praclice law full time and Itlcs. and yes. practicing law. •

nne

Jel'l't

T short, female, Italian, Catholic attorney ...

•.

,..

THE ALABAMA LAWYER

Maylm l 235

CLASSIFIED NOTICES '* '* _

~ _ ~ " * - _ El<CEI'T b •_ _ ' '" ' _ _ _ _ """"'" _ 135 oor _ UO 001 _ _ . NO •• hoft.e • • ", S35 , * , " " - "'..,-..., '" - . $.50 ~ -.., ,,2'nuo .. _ ........ 31 . '99:1 • .,..... .. 2' _ _ ..... 2Q,'1IOO ••_ ......

.... Tn' 10 . ..... ",

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236 1May 1992

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,elated examinations. lntemalionally coull -qualified expert w,t ness. D, pl omate. Ame'ican Board 01 Forensic Documenl ExamlnelS. Memba' Ame"can Society 01 Ouestooned Document Examine,s. the International ASSOCiat ion fm Ident ,licat'on. t~ e"tlsh Forensic Sci· ence Society and the National Associa· lion 01 Crim,nal Delense la wy elS. Rewed Chief Documenl Examine', USA CI18boratories. Hans Maw ... Gldlon, 218 M ...wmont Orlv., AUlu s la, 0."'111.30901. Phone (706) 860437.

S. rvlc .: Sacu'ill.s expe't w,tnen. Will tes~fy ID .... itabi6ty aoo ctoJm.nfl Fdteen yea ..· experoence 1ft SllCUfities busi· ness. Arbitrator for Nalional AssociatOO of $ec"'ity Dealers . American Albiuation AssociatIOn . Amelican Stocl< Exchange Can assist in COU~ or Bfbitfaoon hea rillg. Memba, Nat io nal FOrensic Cante, Chuck Sehlldhau • • , P.O. Bo. 3033, Oul1 Sho •• a, Al a b a ma 36542. Phon. (205) 968-8111 . S . rvlc .: HeAl 1'1,11 avaluale your cases gratis 101 melll and causation. CI,n,ca l re ps 1'1 ,/1 coma 10 you' ollice graus. II YOU' case has no I\'\BI~ or ~ caU· satOO is pool . we will also provide a free wrmen repoll . State allidavlts super rushed. Please see d,splay ad on pa(19 174. H.alth C.r. Audllor., Inc.,

P.O. Box 22001, St. h l .rsburg, Flo.ld •• Phon . 1813) 519·8054. FAX 513-1333. 5 . ",110. ' InSU'iO)Ce . e xperl wU""sS. S,.er Insurance Consu l tants (since t970Hva iiabie to consu lt andlO' r~ r · nish e>pen testimony in area, at prOPer· ty/casua lly insu raoce. IIrTlpkll"Hl beoo· fIlS and business lile inSlJ<ance. Twenty· ""rson stafl inc~ JUs WIth Insurance industry e'pe<i&nce. Due to firm's core· consultIng practIce wIth cOfpo<ate and gaverrunent clienlS. we are partIcularly qualified for matters invo/Vtng CO'veIage inl erpret9tron, insurance in duslry cu.roms and praclices, profess.ion/II liabili· ty. bad failh , rales and prllrTlilJll'lS, COl>Ir<l">'erled prOPerty Cla ims. c laims-made Iss~es, and insu rer Insolvency In itIal discussion and Im p ress ions oHered w,lhout c h arge C.II Edw.rd W. sr~ • • , CPCU , CLU o. Jim M • • • ah . II, JO , CPCU , ARM.I (813) 517·2780.

5 • • ,,110 . : Research/b r ief wr;t lng/ aSSlstarlC8 in all aspects of case preparation by experienced A labama atto, · ney. Member of state bar since 1987. WESTLAW, includi"ll Shepard' • . Prompl response on research ,equesls, Con· talOt Anna L •• Glalll .. a, 2112 11th Av. nu . , South , Suit. 218, BI.ml"gh.m, AI . b a m a 3 5 205. Phon. 1205) 328·9111. NO tepte· S""l8:tio<l is made ttrat /116 qualily 011llB legal Sl1f"Vices to b6 pgrlormed ,s greeter man Ihe qualily allegal s",vlces Mt· Iotm8d by OIIler IeW)'Olrs. 5 •• ,,110.: Aulomotive e'perl. Thirty years' experience, inc l ~ d ing manufaclUrer's seMCe POlicies and p<ocedures, warranty crarms. collision r epa~. salvage appraisal. se<vice equipment, altarrnar· ket equipment and accessories, tire repa i r, ri re disposal . R look Sh ••• Ro ut. 2, BOI 5. G. dad.n, Alaboo· ma 35903. S.",lc., law library upkHP "<VICe on contr actu al basos. Negotl.'ion WIth publlSM'S lor 'educed upkeep cosls Consu ltioO on all i~lormall()ll resourcas. inc lud ing CO-ROM lor PCs Profession· al experienced law librarian WIth M.L-S. Mambe, Amarican Associalion 01 Law Ubra"a~s. Inltls l e"a l ~atron, includ ing travel. gratrs. Jan.1 Small.w , 1714 15th A".nu., Soulh, Blrml .. g. TH~:

AL.>.6AMA L.>.I'o'YER

h a m , Alabema 35205. Phon e (205)933.1581.

Local Bar Focus

POSITIONS OFFERED Position Off.....: Anomeys wanted. axperrenced in ........ance or subrogatoon for new bus iness 'elerrals Writ . I .. . u .... c . S • • wlc •• G.oup, 413 E •• t Broa d SIr •• I , Columbu •• Ohio 43215 . Phon . 1·800 · 214· 1537. Po.iIion Olt • • • d: Attorney jo bs . National and Federal Legal Employmerlt Rep ort Hig hly regarded monthly detailed listing o! eitornay and raw·relat· eel jobs With the U.S. GO"VerM'l8/'lt, othe r pubbc/prr;ata employers in Washrngton, D,C .. throughCMJl the U.S, and abroad, 5O:'l--OOO r.ew jobs each issue. $34 for 3 montM; $58 lo r 6 mo nths, F . d . r a l R. port •• f010 V . .... oni Av. nu., NW, . 408. AB . W a. hl .. , ton, D.C. 20005. Phon . 1202) 393·3311. VISA . nd Maat.re.rd. Po. ltion Off. . .d, Corporate altor· ney . Company based In BirmH1gham is &&eking altomey WIth e,perOence in real estale and comme rclat transaCllons, some krrowledge 0 1 geoo r81 corpo<ale. secur,ties arid BnUirusllaws also oolpllJl CandldaleS shou ld ha.e oulSland ing academic credentia ls (e .g., top 20 per· C8flt at etass or law review) Two to f;'e years oi a. periet1C8 prelerred . Pl •••• . ubmll ...u ..... In co ..lId.nc. 10 Alto.n. , S ••• lOh, P .O. Bo. 59172, III.mlngh.m, AI.b.m. 35259.

Mobi'"

Po.llion Off.....' sh,pbuild· ing and repai r company seeI<s la"""" to lit l new pOSItion 01 in·house counsel Qualified caooidales musl have three to live years' experience With wong backgroond in C<>r1traclS; experlflllCe in mar· ilime law also prer", red. Salary convne"'" surMa WIth experOence, Sand ...u ..... 10 ~ I ..· h o u •• Coun • • I- , P. O. 11o. 262, Mobil •• AI.b ..... 36652.. Posillo .. Off. . .d, Altorney positior'l availabie. Personal injury, WOIkefs compensatl()ll, baokruptcy and Social Secu--"Iy E" pe<ience p<elened. Inquinas c0nfidential, Send ••• u ..... 10 Rho ..... Ttoont.., Oa"l . . . Goldberg. 19fO 3.d Av . .. u . , No.lh , Suit . 500, BI ....I .. g h.m. A I.b..... 35203. •

The Tu scaloosa County Bar A$lodation hu bten inVOlv ed in a numb .. of activities this year, indud· ing hosting various Clio: programs and sponsoring the Explore r Post. Post members, ages 14 to Zl. h ~ ard speak ~rs ;nvol"ed in various arus of pract ice. visited the University of Alabama School of Law and wil l partiCipate in a moc k trial program this year.

:!J

Ib In the United States District Court for the Northern District of Atabama

NOTICE Tha loc al rules of Ih ls COUll require attorneys to t>a raadm iUed to the t>ar of this court and pay a prescribed fee evory five years. ~ you W9(9 admitted prlo. to Jan· ua ry 1, 1987 and hav9 nol l iled appficalion to continuo as a member In \jOOd slanding in too northeln diSirict of Alabama, contact l he cle""', office of this court at (205) 7310171'1 as soon as possl. bIe . Ou, records Indlcale approxi. mately 1,600 aHornays ha.e oot applied lor readm ission and/ot paid !he lee and 3r9, tharelore, no longer act;'e mllrTlt>ars of this bar. In ordllr to avoid FIOssibie delays ooeurring In filing new cases 0)1' in the prog ress of pending cases. please child< your tecords and ~ yo u have not been readm itted . canl act the clerk's ottice at lhe above number. A n applicat ion form wi" be mailed to yoo.

May 199Z / 23 7

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