Lawyer 7 85 web

'~t Union &mil, Ire UXJrk hard to

earn YOllr lrllst. " - Henry A Leslie

President and Chief Executive Offic<!r

Union Bank works closely \\~Ih Illilny AI,lban1(1 'IUOl11l.ys in Ihe 'L d rninislr'ltion oftzusls and estates.

QUI' investment c..l p abiJilies have in r.;t"eased

d ramatically in the pas t yem' by the addition of a slale-of-lhe-iu1 carn pUIClil'..ed system. As Alabama's

largest independent bank, we canlm) all OUI' investment pnx;essing within the Trust IJepm1ment 10 assure con stant at ten tion ,lOd t.'ompietc (;onficlen lialiIY fOl' you\"clients.

We invite YOUI' questions about Un ion Bank's trust sc,,~ces. OUf' expe licnced Ill_lsI officels will be glad to

d iscuss any bus iness, financial

orlhe scn~ces we

Of administmlivc

p[O\~de.

60 Commerce S\r~[ ;\;IOlltgOIllClY, A]ilbama 36104 (2051 26S-8201

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THE JULY 1985

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BOARD OF EDITORS

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OFFICERS

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BQARDOFCOMMlSSIONERS

Huntsvillel 1985 Site of the Alabama Stale Bar Annual Convention - pg. 174 Are 1'011 ready 10 "ny high" in the Rockel CiW' Look inside \0 find Oul exactly what's in Slore to enterlain and educal~ ;-oIlJul;- 25-2;.

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The Alabama La wyer is published bimonthly for $15 per year in the United St~tes and $20 outside the United States by the Alabama Slate Bar. 41 5 Dex tcr Avenue. Montgom · ery, AL 36104. Single issues are $3. plus postage. Second~lass postage application pending at Montgomery.

AL. P ost ma s ter: Send address changes to T he Ala ba ma La w _ ye r , P.O. Box n56. Montgomery.

Al 36HH.

On the Cover This is just onc of the lovely S;(es of downtown Ilun(svilie awaiting you when you auend this ;'ear's annual con,-en(ion. This photograph was con· (ributed by Montgomery auomey Tom Mc{iregOr.

Advising Your Corporate Client on A voiding Charges of Sexual Harassment -pg.176 A lawyer's role often in"olves Ten· dering ad.'ice 10 clients in ord~r to pre.'ent "iolation~ of law. "Preventi.·c·· advice i5 panicularly ;mponant in the area of sexllal discrimination _

ISSUE IN BRIEF

A Judicial Perspective: Reimbursement of Appointed Counsel and Effective Assistance of Counsel - pg. 202 Does thl' criminal justice system al low for ad<'qu8\C compensation to appointed counsel while simuhaneously providing the indigent defendant wil h effecti,'e assistance of counsel? Judge

A General Introduction to Patent and Trade Secret Law: A Primer on Intellectual Propeny - pg. 188

Wilham Bowen of the Alabama COUTl of Criminal Appealsshares his thoughts on this doublHdgl'd problem.

Inside This Issue Presidenfs l'~ .... .. ........ 168 Enonive Di rector·$

Report. ..................... 169 Riding the Circuit • ........... 170

About Memlll'rs. Among Fi nns . ..................... 172 Att~s Admitt~ to Bar Spring 1985 ....•...••...... 183

The lawyer " Explosion:·· Employment, Satisfaction.

Salam & Iklaled Dala .•...............•..... 185 Commiufe R.-port ••....•....• 192 CLE Opportunities ........... 194

CLE News ....••...•.......... 199

In the first 01 a IIIlft-part series.

Professor Harold ~ofiM Un""ef1:uy 01 Alabama Law School provides prac_ lical insights ,mo the field of palent and trade secret law.

Bar ~s .................... 200 law Day USA •.... ......••... 204 Young la~rs· 5fction ...... 207 [.egi51ali~ Wf1l.P-Up .•••...••• 208 Rea:n\ Decisions ...........••. 2[0

Opinions 01 the Gellfflll Counsd ................•... 216 [)jsejplinary Rfport ..........• 218

Recognition of Pro Tanto Judgments - pg. 197 Pro la nI0set llemen IS Ireq !lenll y ha '-e proven 10 Ilea lrap for the unwary. The legislature now has pro\'ided a mechanism allowing entry of a pro lanlO judgment.

In Memoriam ....•............ 220 Classified! .................... 222

C;Preside~'s

c;page

Take the Good with the Bad UYARS

T

his is my final TeJlOT! to you as

president of the Alabama Slat e Bar. Again I acknowledge wilh humility lhal you bestowed upon me

;'our highest honor and my greatest honor by choosing me \0 serve as your president. Your Alabama State Bar has had an ex~lIe!l1 year. much has

been accomJllished. but much remains \0 beaccompiished. As I reach the end of my term, [ face the reality Ihal time has run out before the job has been oompleted.

Whate"er OUr accomplishments duro ing the past year. [acknowledge wilh gratitude the support of t~e Slale bar slaff , the board of bar commissioners

and the commiuees and task forces .

Willloul their collective effOTls, lillie if anything would ha>'e been aCC(lmp-

lished. Without excep<ion, themembers of lhe bar slaff have labored long and hard. cooperated fully and kepI our as· sociation on Ihe right track. LikewiSi!. the bar commissioners ha"e been aclively considering and appnwing Ihe long-range and current programs and policies of your bar. Every presidenl muSt rely upon Ihis staff and Ihe bar commissioners 10 providecontinuily of and supporl for programs which could not ht accomplished by any presidenl during a one-year administralion. Both are commended for theirexcellentguidance and hard work.

Passing in review.lhe 1984·85 year has been a success. Conferences with local bar leaders were held in ~'Onjunc· lion with both the annual and midyear meelings. wilh an ex~lIent exchange

,.

of ideas. Additionally. your president has me! with Ihe local bars in Bir· mingham. Calhoun-Talladega. CoffeeDale-Pike, Elowah. Houslon·Henry.

Madison. Mobile and Montgomery counties. Each confe-ren(:e and visit provided the Slate bar representalives with an oppor!Unily to share and exchange ideas and 10 have input from Ihe grass rooiS. As your president. I was especially honored by the OPJXll"!Unily 10 participate in Ihe celebralion of Ihe 1000h anniversary of the Birmingham Bar Associalion _ Of special significance to Ihe bar is Ihe acquisition from Ihe Stale of Alabama of an addition 10 our headquar· lers lot on Dexter Avenue. Your bar has outgrown its exist ing spa"'. and currenl and futu re expansion are <':S' senl ial lo a well·run service organ ization. T he bar is indebted 10 GO"crnor GeorgeC. Wallace for his foresight and cooperation in making OUr needed ex· pansion possible. This gil! from the state will permil Ihe consolidation of Ihe headquaners office and Ihe Cemer for Pmfessional Responsibility. and permit lulureexpansion htuer loserve the bar. Weal! owe a debt 01 gralilUde 10 Ihe task force composed of three former stale bar presidenlS. Oakley Melton.Jr.; Roberl E. Sieiner.ll!: and James J. Carter; to Montgomery lawyers John B. Scott. Jr .• and Jesse Wil· liams.lIl; and 10ChiefJusliceTorhtn for his cooperation.

To finance Ihe expanded services of Ihe bar (wilhoul deficit). your legisla· live counsel. Wendell Milchell and

John Casey. guided the legislation in· creasing license fees 10 SI50 per year and dues for non'practicing lawyers 10 S75annually. and reducing Iheextmption fmm two years 10 Oclohtr I 101· lowing admission_ During 1984·85. Ihe deficilto provide thecurrent programs was projected at a P]lrQximal el y 546.000.

This legislalion, enacled during Ihe special session 1985. assures Ihe defi cit·free operations. ~rtainly in Ihe near future.

We cannot O'o'erlook the multitudeof good work done by Ihecornmiltees and task forces. The reports gi"en al the midyear meeting, which have been collected and published by Ihe bar. speak for themselves. Much additional work and many accomplishments have laken place since tho:se reports. Without inlending too\'eriook Or htliL!le Ihe work of any commiuee or task lorce, Ihis report undertakes 10 review a few of the many outs landing programs.

By Ihe annual meeting. each of you should have T<'\:ei"ed theexcellenl desk book providing lelephone direclories and useful information for the bench and bar of this state. The Desk Book Comminee. co-chaired by Dorothy F. Norwood. depuly derk of the Alabama Supreme Court. and Brenda Smith Sled ham of Anniston. is to ht commended for a job well done. This is Ihe first edition of a desk book in more Ihan 10 years. but is to ht replaced wilh an annual edition furnished wilhoul cost to bar membe!"!l. As a by·product of the preparation of Ihe desk book. for the (CM<1i~_.~

pap

206)

<OExecutive GJ)irector's ~port

It's Going to Get Worse .. . Before it Gets Better

T

he unusually large number of inqu iries I have re-

ceived regarding lawyers' professional liability

coverage, plus the many long hours your Insurance

Programs Committee has spent on our current problem. dictates this allempted explanation 01 a serious problem faced by all lawyers.

Starting in 1972·73. law\'ers experienced the first insta-

bility in our professional liability insurance market ... carriers wilhdrew. jXIlicies were restricted and rates soored.

Thi s phenomenon has ~n occurring about every seven years: six years agO was our lasl experience{until the recent problem) of the tight market and high premiums.

OUT Insurance Programs Committee became very active

in 1973 and really has nO( had a chance to relax since. We had two carriers writing in 1974; the market gradually eased as carriers re-emered the market and again began offering "great policies" at reasonable, competitive rates, As in earlier j'ears, these carriers ha,'e s kimmed the cream and once again are withdrawing, This is nO! peculiar 10 Alabama - it is nationwide, Our former endorsed carrier, ICA of Houston, has stopped writing lawyers' professional liability insurance. T heir last years experience in Alabama was catastrophic, We examined the figures and validated our loss ratio a1277 perrenl undel'lhe lerms of our contract with ICA. Our curren t endorsed ad m iniSlrator ,Professionall.ia bili t y Insurance, Inc, of Wilmington, Delaware, had hoped to /and in fact did contract to) limit to 20 percent any increase in rates for this year. This is not e"en a possibility in the current market, Ou r 1!J85.86 rates are at least 130 percent overoor 1984-85 rates, You ask "What about yoorcontract1" Candidly, in \(lday's insurance market, a guaranteed rate dOO!$ nO! exist. The contract is nO! worth the paper it is writlen on. with respect to rates_If you do not pay the rate, the carrier merely withdraws from the market and refuses to write the coverage,

Our reinsurance through the Lloydsof London syndicate simply will not be available at the lower cont racted rale.

T he London market is very shaky with the volume of law. yers' professional liability co.erage it holds in America. It has Stopped accepting new coverage in this area. Many U.S. carriers have withdrawn again. or those remaining in the market are requiring a new application even for those who have been insured previously over an extended period of time. Surcharges also are being added in cerlain areas of practice, pa"icularly in the areas of IOrts and real estate.

An is nO! had - it could be worse. The Florida Bar r«ent ly advised its members the insurance may nOI be available in that state at any price. Other states are experiencing 300 to 400 percent rate increases. 1know of nostate that is nO! concerned aoout therorrenl state of the market.

Our com mil tee is COn t in u ing to in "est iga te t he possibi lit Y of fQrming a capti"~ h<w,'ever ,ourmost recent known experi· ence indicates theCOSt of such a venture will not be advanta· geous. One of our carriers paid 27 claims last year. These claims arose primarily in t he areas of lortS and real estate law.

I fully anticipate one more year of a restricted market.

U nlil better limes, [ SUggesl the following: (I) Act promptly when a renewal nolice is received. You "ery ,,'elt may be re<]uiTecl to fill OUt a new application and ha"e a totally new policy underwrittcn: (2) Ha" e your agent survcy the avail· able market. We think we are "on lOP" of the markel. but wilh ils frequency of change you may find a good buy elsew here. Do not forget j'our agent can write Ihe policy for Ihe currently endorsed carrier of the Slate har. [ jlel"$Onallj' am convinced of the excellenl quality of the policy, and [ believe its rates are the most favorable in the country for s uch quality coverage. Over the paSt few years, the bar's endorsed programs have suffered a 230 percent loss ralio. and even with the new rate increase. the cost of Our pr0gram is significantly less than the COStS of the other two (Cooo1i ~Mtd

... "",,;g»)

"Itiding the

Circuits Ba ld wi n Count y Bar Associa tio n The Baldwin County Bar Association held its annual business meeting Friday, May 3 in Gulf Shores. The newly· elected officers for the upcoming year are: President: Vice President: SecretaryITreasurer:

Allan R. Chason Marion E. Wynne. Jr. Robert S. Macleod

Dallas Cou n ty Bar Association

of a portrait to be placed in the courtroom over which he presided in the Dallas County Courthouse.

Etow ah Count y Bar Associat ion The Etowah County Law Library and Bar Library Fund sponsored a CLE Spring Seminar April 19. The seminaron damage ClI8eS raised substantial financial support for the law library; this was the first full-day seminar held in Gadsden.

The Etov.·ah County Bar Association recommended to the judges of the ]6th Judicial Circuit it generally favored the creation of a family court exclusively for those cases.

Jackso n Count y Bar Association April 3. at a regular meeting of the Jackson County Bar Association. new officers were elected to take office May].

1985. They were as follows: President: Vice President: SecretaryIT reasu reT:

~lJey.

(l're.ident 01 the DaIbs County bar) R..-II. Hob!:.

Law Day was observed by members of the Dallas County Bar Association at a luncheon held May I.Judge Truman M. Hobbs. chief judgeof the United States District Court for the middle district of Alabama. was guest speaker at the luncheon. Following the luncheon Judge Edgar P. Russell, Jr ., who served as judge of the circuit court of the Fourth Judicial Circuit of Alabama from ]969 until his retirement in 1984, was honored for his years of service by presentation

Charles Dawson Wallace Haralson Ralph Grider

In the early spring. in 3 benefit basketball game held (0} raise funds for the Big Brother·Big Sister Program. the Lawyers soundly defeated the Doctors in Carter Gymna· sium in Scottsboro. Theevent wasa big success and raised a substantial amount of money for the program.

Law Day was observed May I with a dinner at the home of Tommy Armstrong after se'·eral mock trial presenta· tions at va rious schools and places throughout th~ county.

Le e Count y Ba r Associali on The Lee County Bar Association was re(lrganized in February of this year after a period of inactivity . John V. Den·

son was named president; J~mes K. Hayg.x:.j, vice presi· dent; and Andrew j. Gentry. J r., secretary·treasurer. Presi· dent Denson appointed the following committees to serve during 198.5: Program Committee:

Librnry Committee:

Law Day Committee:

Sxial Committee:

Organization Committee:

Jim Haygood, chainnan Whit Wh ittelsey Yetta Samford Bob Harper. chainnan Hoyt Hill Guy Gunter Jacob Walker. chainnan Larry Ray Jimm\' Sprayberry Crawford Mehon. chairman Tutt Barrett Randy Spear TlIomas Samford, chairman Mike Benson Bob Pettey

A series of programs has been set uP. beginning with Cin;uitJudges G.H. Wright,Jr .. andJames T. Gullage speak· ing in March on the state of the judiciary in Lee County. In April, District Attorney Ronald L Myersga"e an (werview of his office and spoke on recent de"eJopments in ctiminallaw and trends for the future.

For Law Day. Dcan Charles W. Gambleof the Uni,",,"ity of Alabama School of Law met with Uni"ersity of Alabama graduates at a luncheon prior to conducting an afternoon seminar on evidence at the new Lee Coun ty Justice Center.

Fifty members of the Lee County Bar Association attended the seminar and received CLE (rWit. [n the evening. Jacob and Jane Walker hosted the bar association members and their spousesat a cocktail buffet at their ho::rne in Opelika,

Hun tsville· Madison Count y Bar As sociation /ltay I the doorll of the Children's Advocacy Center offi· cially were opened , This center is the result of y<'a1"!j of dedicated ellon of Robert E. (Bud) Cramer, Jr .. Madison County's district attorney. The center is the "house" in which children who have been sexually or physically abused will be brought to be inter.:iewed. A detailed discussion of how this center works is contained in volume 46. number I, of the January 1985 edition of The Aldba"", wlI!J'lr in an article by Mr. Cramer. Through national recognition of this effon, centers of this kind soon may be established across the country.

Montgomery Count y Bar Association Twenty Montgomery judges and lawyers volunteerW their time toserve as "judges" at a "Jail and Bail" fundraiseT forthe March of Dimes. Th~nks to these generous men and women. the arresteesand the Montgomery County Sheriffs Depanment, th~ project rais<!d approximately SI7 ,000. Many Montgomery dignitaries ,",'ere arrested. including Walter

020 _ : Byars, the Alabama State Bar president. and Judge H. Mark Kennedy.

April241he monthly luncheon meeting was devoted to the theme of Law Day. "Liberty andlustice For An:' The highlight of this meeting was the presentation of the Liberty Bell Award to Mr. Earl Nix. businessman,commun· ity server- and church leader.

Also at the April luncheon meeting a presentation of a $1.000 scholarship (sponsored by Union Bank & Trust Company and MCSA) was made to Scott Gosnell,a seniOT at Jefferson Davis High School. for his oratorical essayon "'Liberty and Justice FOT All." The Montgomery County Bar Association has in the paSt and continues to emphasize lhe education of our \'OUth, and again this )'car furnished young Iawye1"!j to speak at each public junior high school ;n the county during Law Week.

The MCBA Annual Barbecue held on June I was at La· goon Park, This year the bar had a tennis and golf tourna· ment in conjunction with the barbecue, Talladega Count y Bar Association The Talladega County Bar Association recently elected new officen during il s April meeting. These include: President: Vice President: Secretary/l"reasurer:

B. Greg Wood James M. Sizemore. Jr. Tommy R. Dobson

In addition to the election of officers. Ihe bar association discussed Ihe support of pending legislation which will establish an additional cin;uit court judgeship for the 29th judicial cin;uit.

0

'"

&\.bout Members, &\.mong Firms AboulMe m bers Margaret M cRae Edwards of Birminaham .... as selected by 1M Amffican Bar Auocialion to attend the first national Conferc:na on Legal Awareness ol 0100- Amme:ans held

in Washington, DC, May 28-29.

Edwards CIIrrently" 5el'\ing 00 the Alabama State Bar'. committee on tilt eldtrly, F.dwards is a "" '" IaIUh graduate 01 bolh Agnes Scott

Durant i8 a member of the Advisory Council ((I the ABA'$ Child SuP\Xlrt Pro;tct and is chairman..elect d. t~ Alabama State Bar', family law

I ~ n e G rub"" i. pleased to an· no, mc:e the establishment rJ her liesean:h & Writing ~rvice at 6637 !!emington Drive. Helena. Alabama

section.

35080. Phone 98&8S2\.

Allen C. Jonu is t*ased to an· nounce lhe rtlocation d his dr~ 10 202 Wrst Walnut Street, Troy. Ala· bama 3&61.

College and Cumberland Law School.

An article by Birmingham a ttorney

He nry T. He n~e l wi\1 b/, reprinted in tilt ItlDbtz"", AptKl!J,le IlImdboolt.

"Complyi", with Rule 39(k). A. RAP. (How to S~ on 'CenT also ail"

peaRd in the 5tp!ember 1984 issueol

n.. Alabrll_LA~.

Marilyn S. Ka vanaugh , auOfTley at law. fOl'lTlf!rly an anOl'1ley with the National Aeronautics 800 S~ Ad· minislnllion,;. pleased to announoe the opening 01 her oIfice at 1506 McC ullQo.lgh A"t nut Nonheast.

Huntsville. Alabama 35801. Phone 539-0029.

J ose illt W. lludson. anomey,

has reJocated hi. office to the Blanton Buiklil'l/l. 1810 3rd Avenue. P.O. Box 31 n. Jasper. Alabama 35502-3172.

Montgo::lmefy au"",,,!, Vanzena Penn Durant ~nted a workshop on "Evidentiary Defenses in Paltrnit y Cases" al lilt American Bar As· sociatio.,., National Conference on Child Support Practice April 12·\3.

Ric hu rd K . Mauk. an aSS(lCiate wilh Gordon , S ill>erman . Loeb.

Cleveland & Gordon , has been all' pointed general counstl to the Young Democrats d. Ammca. Mauk is a fonntr pr~idenL 01. the Alabama Young Democr.1I1 and 01. theldfer· 500 County Chapler. and is a gradu· ate d. Cumberland School cLlaw, Samford Uni,·en;ty.

Colonci li. J e re Arms trong re. tirtd from the United States Army'S Judge Advocate General's Corps Sell' tember 1. 1984 , after 2{1 years of ac· tive duty. fie was awarded the Legion d. Merit in ctrtmonies at the Pen tagon upon the occ;uion d his re. tirtmen!. lIis last assignment in the Army wasa5elCKUtive dfla'J'oithe Army's Civil Litigalion [)i"ision in Washington.

Sow living in Annandale. Virginia. and a memberd the Abbama. Di~ tria of Columbia and Virginia bars.

Armstrong was appointed in August 1984 a.counsel to the chief immigra· tion judge in f an. Church. Virginia .

Sarah Ka thryn I' ame ll anooun ·

ces tJw:o rtlocation d her legal rewan:h practice 10 112 Moore Build· ing. MonLgomery, Alabama 36101. phone 284-4958. She also win be affil· iaLed wilh Jones law School in Montgomery.

Amon g firms TJw:o law firm at Martinson & neason announces the association at Amy A. Sla)·d .,n for the prlIClice at law . OfflO!:l art Iocattd at 115 Nonh Side Square.llunt5\·il~. Alabama

35!!01. Phone 533-1666.

The law firm of Thomas , Talia & Murray.

1600 Bank for Savings Building.

Birmingham. Alabama 35203. is pleased to announce George M. Ta ylor, III . has become a partner in the firm . f elT(>, Form a". Burr

Je nnings. Carter 4< Thom pson is pleased 10 announce the relocation at t~r atflO!:l to Suite 1150. Bank for Savings Building. Birmingham.

Alabama 35203. ~nd that Roben J .

Velll hal be<xIrnt a member 01 the firm which wi!! practice under the name of Jen n ings. Carter .

Thont llllOn & Veili. Phone

324-1524. ,_" /!/IIlS

'The Law firm oI lIubbard. Wal· drop. H/:' )'nolds, Davis &: McIlwain it pleated to annoura II. Ed· wa rd P/:' r$Onl has ~ ~S5(> cia.tfd ...ith the firm. Offict$ ~~ 10catfti ~tllO!l Lurletn Wallace Bou~ard. North. Tuscaloosa. Ala· bama 3.'>403. Phone 345-6789.

The law firm 01 O'Oanno n &: O' Oa nnon is pleased to annoullC" the relocation of il1 offices to 402 South Pint Street. ».0 . Box 1428.

FlorellC", Alabama 35631. Phont 767-6131.

J . Doyle Fulle r takes pleasu~ in announcill8 Cand y Yarbray En. glcben has become aHOCiatfd with him in the practice 01 law and also take:! plea5u~ in announcing the reloclItion 01 his offlCtll to 22 Scot t Street. P.O. Box 62. Mont~.

Alabama 36101.

The law firm of Oro wn, Hud gens. Richardson. I' .C.. i$ pleased loannoonct Edwa rd L La ssete r .

J r .. and Vincent A. Nolello. J r .. ha,'c btcome rromIbft's 01 the firm. and C. P a ul Ca"c nde r ~nd J. Langford t:l o)'d ha~ ~ associa.tfd with thoi! firm. Offices aR 10calfd at 1495 Uni,-rrsily Soule\.. rd.

Mobile, Alabama 36609. Phone

Wininge r a nd Lee. P A .. is proud 10 annoura Da vid L Manz

is nowa~ted with the firm for the gtnmIl practice 01 law. OffJre5 a~ loxalfd al 517 North 21 st St~.

Birmineham. Alabama 35200. Phone

"'.-

Bun ti n &: Cobb. P .A.. annouT1Cl5 the TffTIO\'al of ill oIflCtS to 206 North Lena SI~ in Dothan, Alabam~.

Phone 79-1·8526.

The law firm of .I ardin &: Hollis.

P.O, Box 11328, Birmingham. Ala· bama l5202. is pleased to annoura the a!l$OCiation ci St uart F. Vargo.

Tho mas M. Goggans. lI orace N. Ly nn and C. Michae l Mdnnis h a~ ~ to a nnounce the forma· tion 01 their firm for the geroera! practice of Law under the name of Gog. gan!!, Ly n n &: Mcl nnish. OfflttS are Iocatfd at 770 South McDonough Street. MonliQlJ1ery, Alabama 36104, Phone 263-0003.

Siaugbl(' r . Young & Lew;s. P .A.. with oIflCellocatfd al 800 First Na· tional·Southern Natural &ilding.

Birmingham. Alabama 35203. Phone 251·11XXl.

Robert M . Harper and Roben T . Meado w8. 111.01 the firm ci lI a'lK'r &: Meado ws. Auburn, Alabama. a~ pleased to announce Will O. Walt on . III. formerly 01 the MontiQlJ1ery County District Allorney's Office. has b«omc associatfd with thim effl'Clive May 15. The firm maintains itl oIfices at 233 East MagnOlia A,'tout in Auburn.

Jim L Wilson. I'.C.. and George C. Day. Jr .. a~ p!eastd loannounce the formation ci a pannership for lhe genenl practice oIla ...· under the firm name 01 Wi lson &: Da y, with oIfices at The C(lUn>'ard oIf Ninth.

924 Third Avenue. Gadsden. Ala bama 3590I. l'hone 546-6334.

The Law firm of Cabaniss. J oh,,· s ton . Gardne r , Dum" &: O'Ne al is pleased toannounct P a ul D. i\1 )" rick tLas btcome a$$OCialfd with the firm in its MobileciflU. Offices a~ loxatfd" 2210 First N~tional Bank &ildirc. Mobile. AI~bama 36602. !"hone 4J3.6961 .

344·n44 .

McFadden . Riley &: Parker takes pleasu~ in announcing Oelh McFadd e n Houlj(l has become a member of the firm and Douglas L Anderson has become associatfd wilh the firm . Offices a~ Iocatfd at 118 Oowntowner Boulevard. Mobile.

Alabama 36609. Phone 342·9172.

Tht law firm 01 J ohn C. Coggi n.

III . PA .. takes pleasu~ in announc· ing Timothy J. Trac y has bc-wmc an a!l$OCiate 01 the firm. The offICeS a~ Iocatfd at 500 Bank for Savings Building. Birmingham. Alabama 35200. Phone 328-2200.

The law firm ol Donovan &: Hoffn Uln. I'.C., takes pleasu~ in an· nouncing Samuel R. McCord has become a member of the firm. and the firm name has been changed to Donovan . McCo rd &: Uollman.

P .C. Offices are Iocatfd at Suite 100.

1608 13th Avenue South. Bir· mingtLam, Alabama 3S205. Phone

."'.".

The law firm 01 North . Il as keli.

S la ught e r . "()Ung &: Lewis. P.A.. lal<ts pleasu~ in anoouncing Jonathan II. Walle r has re;olned the firm and Jam e!! L Richey and C. Drew D.:!n ... r8y have ~ associatfd with the firm. The firm's name has been changed to Has ke ll .

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The Alabama State Bar 1985 Registralion Information

Hotel Re servatio ns

Bynow, you already haw receiwd materials lor registering for the 1985 Annwl Meetingo/ the A1abamll St~te B<or. This year's meeting will be held in Huntsville. with the Huntsville Hil· ton as the headquarlel'$ hotel and In.. convention activities being held

The convention he3<iquarters in Huntsville will be tr.e newly remcrl· eIed Huntsville Hilton. You will nave an opportunity to maJ<.. YOU' hotel reservations through the state bar at the Ii"", you register for the annual rr>el!ting. The state bar _in will har.dle the hotel reservations. ar.d under our agree"",nt with lhe Hil· ton. lhey will not accept reservations directly f,om the members.

In recent Y<!3rs. we have had diff,. cullies with large blocks of rooms being reserved in tr.e I"\1I1"r"II! 01 OM person or law form ar.d then not be· Lng utilized. with members who de· sired rooms in the hotel turned away.

in the Von Braun Civic Center.

Not only will you $ave money by pre-registering, but time, also, Your tickets to.-1t1<l! social and luncheon functions you choose to attend will be in a p;>eket ready lor you to pick up upon arrival in Huntsville. This

Breakfasts A breakfast for the general memo bership will be held Saturday mOm· ;ngafter the Fun Run. Chher break· fasts. which will be held Friday morn· ;ng. in<:lude: 1985·86 Committee Breakfast. Farrah Order 01 Juris· prudence Breakfast ar.d Cumber· lar.d Law R.Mew Breakfast .

wiU help us bet1er plan lor your conw"tion. CanceUation. with a fuU refund may be rna&! through July 22,

"'"

Those unable 10 prNegister will End a booth set up on Wednes.day a1t<l'lTl(X)l1 and through the remainder oilhe OOIlVIemion in the Von Braun Civic Center to ",gist"., to purchase tickets for special ticketed functions and to.- general information purpOSeS.

Alumni Luncheons As is c ustomary. the Uni ........ ityol Alabama ScIW of Law and Cum· berlar.d School 01 Law will host alumni luncheons on Friday.

General Bus iness Meeting

Fun Run The .etum to Huntsvilk! will see the return o[ the state bar Fun Run. Thisye3r's Fun Run""';U be held Sat. urday ""ming, July 27. TherewiD be a nominal registration Ie<! for the Fun Run, and T -shins will be available for aD participant. who ,*Ier in ad · vance ar.d 6nish the r/ICe.

The Saturday morning general busines.s meeting wiD be held during the grar.d convocation. At the busi· ness meeting. Walter R. Byars wiD p"s.s the 9" ....1 10 his S"':Cess01".

James L. NOI1h of 8irmingtv.m. who will as.sume the presidency of the state bar for the 1985·86 administra· tivll .....ar.

Also. theoorwiUelect its president· elect to s...:ceed Mr. North at In.. conclusion 01 his term 01 offICe. At press time. the fiMi commit· ment 01 the grand cooVOCiltion speak. er had not hem confirmed; how· ever. a ""tionally known figure has been invited to address the la"'Y"rs 01 Aiaooma on Saturday morning.

Membership Reception The popularity d Huntsvillo·s Space ar.d Rocket Center as the site of the 1982 Membership Reception has prompted a return to the center for this .....3r·. membership rece-ption Thursday evening. July 25.

Not only is the Space and Rocket Center Museum an interestingp!ace to tour. but the museum and the Mnd.-on exhibit. as """II 8S the space ~pla;>g1"ound" outside the mu· seum. will make for a most enjoyable evening among the stars. An added feature at this year'. membership recoplion will be an opportunity to view the new movie in the museum's outstanding space tr.eatre. The reo ception will be held bet"""en the hours of 7:30 and 10 p.m. ShuTtle buse. between the Hilton and tn..

Space and Rocket Center will be available.

AsalwaY$. this isa ticketed event. and to assist in our planning and in· $tire adequate food ar.d beverages. we ask that you pre·register ar.d have your tickets picked up at the regi,.. tration desk prior to the reception.

Annual Convention Co ntin ui ng legal Ed ucatio n a nd Seclion Mee tings CLE, in the fonn 01 an all.ruy semion Thursday aM section meet· ingS on Friclay, will provide up to nine eLE credits, depending on the fill.

~lion meelings chosen. Additionally, the supreme court has mandated t.... t 2.0 Cl£ crl!dils be awarded

lor attendance 01 Saturday's business meeting.

"Upd!.te

'85:

presented Thu . ...

day. July 25 by the Yoong Lawyer5' Section, will provide 6.0 credits and focus on re.:ent deveklpmenl. in the law. Workers' compensation (includ· ing co-em~ Ie9oIation); ano""-'Y' client privik>ge aM the work prodllCt

doctrine; comnwrdal and contract law; estate planning; criminal law,

and domestic 'elat",,,s are the planned topics.

Sectioo meeting topics include: attorneys' lees in bankruptcy and c<>mrI"Ier(iai cas<I$; atlOmey!l' fees in divorces: basics 01 representation 01

Dessert Parly and Da nce The success and the poJlI.kity (it ""'" a soId·out """nl) of last year's des· .... rt party wiD be repeated this year in Huntsville. The dessert parry wiD be held at the Von Braun Civic Cen· t'" Exhibition Hall and featvre a wide variety 01 desserts. as wen 11$ a .. make your own sundae" ice cream bar.

Bo Thorpe aro::I His Orchest1<l have been engaged to play for your dane·

Fridaymomire'sgeneralassembly will be a pro/essional sI>ow<:ase, high_ lighlire the work of lwo oIlhe bar's committees and task /orces.

Stafford F. McNamee, Jr., of the NaslMlefumof&.s, Benyand Sims, aro::Ilhe committee on L.wyer Alcohol

Ge ne ral Asse mbly Thursday

semina, entitled "Update '85," c",,· e>ire recent developments in the law. llIose who regularly attend the annual meetire will want to note this evenl al which substantial Cll credit wiU be giwn. An ouistandire pr0gram has been planned wilh numer· ous areas 01 int",esl for every member 01 tho bar.

ing pleasure that """ning. This <)T. chestra is billed as"a band that hasa generation of Americans dancing ilgain." Bo Tho!"pe, a native North Carolinian, aro::I his orchestra have vshered in the rei urn 01 lhe big band era; not only will you have an oppor. tunity to dance to a wide range 01 music, but hisorchest1<l features out· slandire vocalists for your listening entertainment. too. The Bo Thorpe Orchestra has played each year on the anniversary 01 Presidenl Rea. gan's inavguration when he hosts an imuguralanniwrsary baIIat the White House. The orchestra also played al the i""usural baD. 01 both inaugura. tions of Presidenl Reasan. Dinner will beon....,..,. own, but you will have an opport unily to end the evening on a high Il0l0' of a/ter-dinne-r drinks, desserts and r,ne music for your dancing pleasure.

Ge ne ral ASS(l mb ly Friday

oil, 9<'S and mineralle...".s; recent dewlopmenlS i" practice and proce· dure; ~changes in "'wsaffect· ;ng real estale practice: and recent dewK)pmetlts in A.. ooma tax laws_

The 1985 Annual Meeling 011 ....

Ala""""'" Slale BaT begins this y.!ar Thursday morning, July 25 with a

Huntsville!

The Bench and &r Luneheon wiU be held Thursday and willieature as guest speaker Lror.ard Passmore 01 Avstin, Texas. Mr. Passmore is a former assistant attorney general 01 the slate of T U1I$ and retired gen. eral counsel 01 tho Te><as Bankers Association. Prior to tho Bench and &r Lvncheon ther<l will be a Bloody Marypanyin tho pre·luncheon meet· ing " "''' at tho Huntsville Hilton.

aro::I Drus Abuse will present an informative program on lhe p.-obIems lac· ing Iawyo>rs, judges and their families.

Patrick Emmanuel, presi&mt of The Florida &r. will brief bar members on the IOLTA (IntETesl on Lawyers' Twst AccounlS) program in Florida. The Alabama State Bar is considering developire ouch a program; the funds would be used for

charitable aro::I educational JlUfPOS"S. 60lh programs will contribute greatly to your pro/e5$ionaI devef.

Opment and win be of interest to spouses aro::I guests.

Advising Your Corporate Client on Avoiding Charges of Sexual Harassment I"

Fred W. Sugg.s, Jr. Offioe romances and industrial sex frequently lead to practical and legal problems in the workplace. Although workplace romances arecornmonJllace. practical problems related to these liaisons include reduced productivity. slower decision·making. poor quality, accusations of favoritism and open hostility. Moreover. an employer may be faced with litigation because a con· sensual affair of the heart belween a superviso:r and a subordi nate turns sour. because a supervisor uses his or her posilion of authority over a subor· dinate to coerce sexual favors or because of the actiQns of employees or even nonemployees.

If an employer's organi2ational cli· mate cannot lo1erate even consensual romanticentanglemems. management muSt establish and C<lnsistemly en· fwee a policy against these affairs. In many companies. a JIOlicy that no ra. mantic involvement imerfere with work is more realistic. Lawyers should advise management il has the right to expect and require that personal rela· tionships not interfere with per· formance.

1'I1 0re important. however. is what an emJlloyerdoes to prevent workJllace sexual activities tinged with actual Or potential C<lercion. An employer is en·

lilled 10 forbid ils supervisors from en· gaging in sexual relationships with subord inates and to require its super· visors to ensure the work areas over which they have aUlhority are free from sexual harassment byemployees and nonemployees. For the reasons discussed hereafter, all employers should be advised to imJllement, maintain and strictly enforce a company policy against sexual harassment.

An analysis 01 Ihe Equal Employ· ment Opportunity Commission's GuidelinesOn Discrimination Because 01 Sex and the judicial decisions interpreting these guidelines are a good starting pOint for the lawyer who must advise adient interested in dealingef· fooively with the subject of sexual harassment.

Although sexual harassment was judicially recogniu~d fir1!t in 1976. Ihe courts were TCIuctant initially to treat sexual harassment as a violation o1Titie VIl. even though several studies showed a high inci<lence of workplace wnduct which working women viewed as harassing. Unlillhe guidelines ap: peare<J. varioos district courts dis· missed Titlt Vff claims on thegrounds sf'Xual harassment did not conStitute sex discrimination. The mOSt common theory was that acts of sexual ha·

rassment were personal in nature and not solely gender·based since males as well as females could be harassed.

More recem court decisioos have rec· ognized an allegation of sex harassment states a valid claim under Title

VII. He"",m v. Cily<J/ DuM«. 682 F.2d 897,29 FEP Cases 787(11th Cir. 1982) What Type Conduct Constitu tes

Sexual Ua rassment?

The EEOC Guidelines provide as follows: Hara ••ment on the basis of sex is a violation of Sec. 103 of Title VII. Unwelcome sexual adval'lCe$, requests for 6e"ua1favors, and other verbal or ph%ical conduct of a ",""ual nature constitute sexual harassment when (I) submission 10 such conduct is made ";tilerexpliciily or implicitly a term or condition 01 an indivOdual's employment, (2) submission tQ or re· jection of su<:h conduct by an indi· vidual is used as the basis 10..- employment decisions alfecting such indi,idual. 0..- (3) such conduct has the PUrposl! 0..- "flect of unmlS<>na bI y interitring with an indi vidual's work I"'rlormance or "reating an intimi· dating. hostile. or offeTl$ivt "..".king envirQnment.

Under the guidelines. there are tWO types of sex ual harassment - "Force" and "Annoyance." Force is best dO!" scribed as quid pro quo harassment -

,*1985

a ~upHVi~ using his or her position to oom:e ~xual favon. Quid pro quo ~xual harassment forces an employee tochoo5e between yielding toa work· pba superior', sexual demands or suffering such advuse consequences as leu u employment benefits, dem0tion or discharge. Anr>oy:l~ or an 01· fensi~workingenvironment situation (lCru1"$ wlltn unwe~ sexually or· ienttd conduct interferes with an em· plo).·l!e·s worlcingconditio'"i. Both types of sexual harassment arc analyzed under the disparate trtatment theory.

See. e.g .. J/fNJ4" u. City of D,,,,du. SM· pro (citing McDo.t/U1/ Dol<gfas F. Cm".

41 t U.S. 792.:) fEP Cases 965119131 and TUlIS Dq'/ ofQ. ...... uity Affoi,.

•. 8.m/iNt, 450 U.S. 248. 25 fEP Cases 113(l981)~

The guidelines contain such broad and hiahly lub;ec1ive tmIlS that they .-:h virtuaLly any personal encounter one party deems ··unwelcome:' "hoIItile·' or ··ufen!livt." Sexual harassment can be as violent as rape or as subtle as innuendo. An unwelcome sex ual advanet may be paning, fondling or ca· ressing. A request for sexual favors needs no further definition. Other ver' bal or physic-al conduct of a sexual na· ture may include foul language. diny jokes. su~tive lloilon. on app;lrei, pinups. leering and inde<;c>nt exposure.

It should be nottd. howeVff. sexual h.a. rassment.like wuty, uten is in tilt eye uthe beholder. What one person considers a joke may seriously offend another. Indeed. what may be consid· ered funny at the first p;!rt oIthe week may serve as the basis for a sex ha· rassment charit at wtlek's end.

The dassic exampleof quid pro quo sex harassment is the starlet who must s ubmit to the movie producer to obtain a job as.n k1rtSS. &xual h.a. ra$$ment also can (lCrur where a job intHViewer. by mnns 01 a suggestive glana or itSlurt. implies a job is availa~ in return for sexual favon.

Once a n em pIoyee is hired, if the grant· ing or refusal to frlnI sexual favocs is ust<! 1$ I basis for employment deci· sions. then thedecision is bast<! on sex and is by defini tion sexual harass· ment. A common example is that 01 employee$ being denitd promotion while others "sleep their way to the

'"

Under the guidelines. however. any conduct u a ltJ<ual nature interfering with employee job perlormana and creatinga hoIitiltworkingenvironmenl can be lex h.arassmenl. Allhouah the offensivtworkingenvironmentthoory WIS rtje(ttd It first by the couns because of their unwillingness to find a claim actionable unless the grantingof se~ual favOB was made a condition of employment, the theory receivtd judi· cial acceptanct in Bun4y ". Jackson.

641 ftd. 934 (D,C. Cir. 1981). TheTe, the court allowtd the plaintiff to sue for an injunction even though the ha· rassment had not caust<! tilt employee 10 lose tangible job benefits. The plain· tiff. superviS(lr1 requl'$ttd sexual favors. but the plaintiff was not di$" c .... reed for Tdusing their advances and did not quit in response to their requests. The plaintiff complained of her supervi __ ' actions 10 her super· vi __ ' superior, whose only response was. "Any man in his right mind ..".ould want to Tape you."' Tilt COIln expressed COIIctrn that: IU)11tu we ~Itend [prior cases' ] boIdinill~ In empla~er could sex\>· Illy hal"Ul' female ~mployeo with im punit y by am ull ~ Itoppillll short 01 firi". thumployte or takillll any <IIMr lIn,aibie IICtIOlll_illlt t.... in rap:lt\Jt to lin railtlra. t~by CR\Illllllthe ,mpraaion ... thotthe "",pIoyer 4id not lIU the ritual 01 ho,..".._and rtIiiI.ra ....... oIy. [ l ~ may ewn be "",ntleu tortquire themlpioyet to)lnM: that ........,.. istod"tllt horus_nt It Ill. s" torw as tile mlplayer never litmoll y I"""" lexual rmliont 00 the ....,pIoy.... ··rclist.ra" mlY be I moaning!ess alternative lor Mr. If the ....,pIoyndemands nol"tlponle 10 hi. v.... bal or physical J6tUI"tl other than good. natured loitrara. thewoman has no moan, 01 oornmunica,jna- her rojec. tioon. She neither act"",' nor rojo:'~ the odvlJ>Cft: .... simply tndures thml. She m,.t.t be able 10 Contrive proof oI.-.jection by at;ectine to tht ....,pIoyff't odvantel in -... ''ft"J • ... bIo.nd 4rama'lC .... 1. but sht would do 10 ooly II tilt risk d. mak· jill Mr ~fe OIl ,hejob ewn more mismlllle. • . . It hardly helpt. tha, ,lie "'mote pn:1OIPfCt oIlepl Tdid" under [pretWt la .... l ........ insl.,.;lable if .... obj«t. 10 powerfl>lIy 'hal she pro~ ,he employ...- in,o lirina- her. ".. employe. con thus implicitly Ind ~lfecti' e ly make the ~mploy..·s enduranc:t 01 M~~al i"timid.tion a

"CQnd'tioon" 01 her~pIoyment_"" WIIftWl then !.as a CJ"UOI trilornma.

She call end,,", the harasamcnt. She an .UmlpC to IJIlIlC* it. wi,h littlo hope 01.-, tither lept or PIX" tocal. but w,th evfI"J' proI.PfCt 01 mak· illl the job ewn leu toItt1oble I« her.

Or aile can Inve Mr job, "';,h ti,,1e !lope 01 ltpl rtIid Ind the likely pn:1OIPfCt <Ii lnotMr job wllet-e she .... iII f"", iw"Iunlf.H onew.

H

Th~

H

"crueltrilemma" discussed in in which a victim must chOOllt among aajuiCSctna to harass· ment , OppOSition to it or resisnation from her job - rtttntly has been taken a step further in ViltSOlt~. TayfoT,36 rEP Cases 1423 (D.C. Cir. 1985). In Vi_No the coun considered a fourth option - 10 yield and lher~by lose all hope 0I1ep1 redress for being pul into the intolerable positim in the first pIact' if the COUrt w~ to hold that a plaintif!". capituluion to on·tM-;oh se~ual advances worktd a forfeitl>re 01 her opportunity for redTeS5.ln consid· ering this "quadrilemma:' the D.C. Circuit Coun held that "81 victim's 'lIOluntary' s ubmission to unlawful 1sexual harassment1 can ha"'e no bear· ing on the pertinent inquiry: whetlltr ... toleration 01 sexual harassment Iwas made] a condition 01 ... employ· ment."'

Althou&h the fOrtgOiIlll discussion demon.trat~ the brea,lthc/.lhe g'..lidelines' mKh. there are some limitations under the guidelines. Se~ual harass· ment mU!l\ be ··unwekxomed·· in tilt sen~ the aggrievtd employtoe did nOl solicit or incite it and regarded tilt conduct as undesirable and offensive.

The conduct also must affect a "term or rondition of employment" or be a "basis" foremployment decisions. Con· duct which does not affect employ· ment i, outside the ddinition of sexual harassment.

M~er, courts recognize not all conduct .... hich h.a. sexual overtones is sexual I"Iarassment. Often. the deci· .ionol what i,sex iu.rassment is made on the totality 01 circumSllJlCtS ..... hich includes assessing the frequency and seriou$ne:ssc/.t~ conduct. "A cause 01 action does not arise from an isolated incident or ~ flirtation." Rather, oourtslook at such faCiors as: "(1) the extent to which the conduct affecttd theemployee's terms and conditions of

Bu"dy -

employment: (2) whether the C<lnduct was repeated or isolated: (3) whether the conduct waS intended or Jl';!rceived serioosl\' or in jest: and (4) t he degree 10 which the conduct ;s contrary to com munity standards." For example, ;n Wa/ler v. KFGO RadiD, 518 F. Supp.

1309(D.N.O. 1981). the ooun found no sexual harassment e"en if the pla;n' tiffs allegations were true that her suo perior made one inebriated allempl to engage in sexual relations with her. touched her in the breast area and patted her bottom. The coun based its decision on the fact the incidents oc· cu r~ over a long period of time. and the plaintiff admiued then' was no interference with her work and that she was not intimidated b\' her supervisor's conduct.

Notwithstanding the decisions that have found conduct not to C<lnstiullC sex harassment. the broadness of the guidelines jIlIts an employer at consid· erable risk that conduct which an employee claims was "intimidating. hostile or offensive" is sex harassment and win sen'e as a basis for a legal claim against the employer. In advising an employer in this area. lawyers must approach the problem in a practical fashion. No a<;t of congress ever will eliminate from the workplace the topic of sex, off..:olor jokes or sexual overtures. It is implicit in the 10th Commandment that these problems ha"e been with us for a long time and are not likely soon to be eradicated.

However. where common sense shows that employee!! are likely to view con· duct as being "unwelcomed" and "of· fensive" or where an employee com· plains of the conduct. the employer muSt beadvised totake prompt action sufficient tostop theoffendingconduct.

For Whos e Conduct Ma y Emplo yer be Liable?

,In

Su pervisors The EEOC' $ G u idel ines im po.'iO.' strict liabi lity on employers for supervisors who engage in sexual harassment whether the sexual harassment is Quid pro QUO harassment or sexual annoy'

ance: Applying general Title Vll princi· pl.s, an .mployer.• mploym.nt

agency. join t awenticeshi p commit· tH or Labor organiutiOl' .. . is ~ sponsible lor it5 ~s and tho$e 01 it. agents and s~lI"T"isory ,"",plOY_ with respect to .. x~al harass"",nt reg:ardlC$S of whether t~ .pecilic act. compl.in<"d 01 wen: a~thori""" or ,,'en forbidden by th. ,"",ploy ... and regardl .... 01 whether the em· ploy.. \rnev.' or shoo KI ha oe known 01 their OCC\l","K". The Commi..iM will examint the eir<:umsta~ of the particular .mployment ttlationshi pand thejob lunctions performed by the indioK!ual in det~rmining whether an individual act. in ~ther a s~pervisory or agency capacity.

Th~ courts generally agree

with the

EEOC in thearea of quid pro quo se x· ual harassment and impose strict lia· bility for supervi!lOl"S who engage in sexual coercion. Miller v. Bank of

AmErica, 600 F_2d 211 (9th (ir. 1979) is illustrative. There, a wOman was fi~ beca~ .. she would not sublllit to her supervisor's demands for sexual fa· vors. The ooun stated: There is nQlhing in ITitie VIII ",'hich ....en hints at a ~ional inten· tion that the employer i. nOi to be liable if OI'e 01 its employ"",. acting in the cw... of hi . employment. oommit. the tori. Suoh a rule would create an enormous loophole in lhe $lOt~t ... .. . The usual role, that an emplO)"er i.liable for the torls 01 its emplo:,'_, acting in tM of Ihtir employ"",nt. "",ms to us to be iust as appropriate her. as in other casn, ., lea't where, ao hen!. the Odor i. I ~ sU»Or"isor cI t he wr<;>nged employee_

00'"''

...

ATMVT

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Wtconducltl"-I~I ...~

doef no( apply hom.... hom lho KIm complained 01 was IIIaI 01 a supttVi-

_. authoriud 10 ~,~, fire, discilIIineor promot • . or Itltutto p.otlic,p.ott in or r<comm.nd such actions, tv.n though what tho suporvisor i.

1liiie! 10 ....... done violatn company policy.

lIIillff and subso!q~nt castS rely on thefact thatthesupenli_had po....er to adversely affect the employee's job, As a conseq uen~, under Ihe present $talUI olthe law. if a supervisor ustS his.,... her po....er to ad"~ly affect an employee's job in malialion "Pinsl lhe employee I.,... Ipl.lmin& a request I.,... sexual fa, 'ors. the COlIrts .... ill hold the emllloyer liable lor the acts olthe supervisor regardless 01 the employ· er's kllQwl~ 01 the supervisor's actions.

Allhough the guidelill5 im pose strict liability on an employer I.,... olfftlSi"e w.,...k f1Ivironment situations. coo"s lrequently have n'lused to find liabil· ity unless theemployer kr.ewor should ha". known of the situation and failed to take remedial action. Newrthde;s, lanauag(' in Bundy ~. jlldtJlJ" and in l'illSO" •. T<lJIo~indicates somecoorts may loIlow the guidelintl and impose Strict liabilityonemployers whero: there has ~n nosexual harassment beyond Inual annoyance by supervisors, In any event, il is dear COUrtS im(:WllSl! lia· bilily on employers f.,... the acts of $U' penli!lQn which emtt an oll.... si,'t working .... 'ironll'lf1lt il the em~-er had nO(ice of the sexual harnsment and did nothing to r«tily the silua· tion. For example, in BroMm v. City of e u/hi" 2Z FE P Cases 1627 (W.O. Okla. 1980). the court held the poIi~ department liable for t he sexual ha· rassment of a female employee by a pollet lietllffiant (Iev.'d SUiKt$IIonS. Ttmarks and gestures) whtn' I"" plaintiff n'porIed lhe lieutenanl's Ie· tions to the chi~f of po1i~. but he 1001< no action to correct the situation. [n summary. lawyers should ad"i5t their clients they may be held strictly liablefor sexual harassment by super' vi!lQn.. Strict liabililY almosl certainly will be imposed if an employee suffers ad"erse ..... ploymem I:OIlstlQuences at the hands of a rejected lupervisor. 11 the ~mployer knew or s hould have

known olthe sexual annoyance by 1 supervisor. liability IIMI is likely 10 be impoKd. and if coorts follow the EEOC Guidelines, liability will be imposed absent actual or constructive knowl·

""'.

[n ,.jew ol the high standard to which employers an' ""ld for the conduct 01 supervi!lQn. attOl"ntyI should advise thei r corporate clitnts that suo pervisors should be cilollf,n can'fuUy. trained thoroughly and any hi nt of suo pervisory sexual harassmffit promptly investigated.

Co-Employees

I""

In thecaseol CXl-I'1lIpIoyees. both courts and the EEOC agree t"" em· ployer must ha,·c actual or const rue· tive noti~ ol harassment by a nonsu· pervis«yemployee belln theemployer will be held responsible for tbe nonsu· pervi$Ory tnl~"«'. mismndUCI: With """ptCI to<lllnCluct btI ...'...n ftllow employtes.• n em~r i. respomi~ for actt oI .. xual haraument in the workpl.ce where the employ... (or itt qentJ or I Upon1--, "",pIoy_> know. or should "-",, ~n III tho QiXldIlCt. uru.s. it an .how 1"-1 it took imrned>llte and

appropriate COI"HCI"~ 1lCl00IL

In OJ,,/ilWtlul OJ" Co. ~. i\fi"..esoI4, 297 NW.Zd 241. 22 FEP Cases 1808 (Minn , Sup. Ct. 1980), the plaintiff WaS lub;ected to sexually derogatory stat .. ments. ,-erool sexual advances and ol· fensi"e touching 0( a Sl:'xua1 nature.

The plaintiff reponed the conduct to her supervisor. butlhe sUpenlisor tool< no action until aftt<" t ht<"e was a "iolent confrontation. The court held the employer liable. finding that the em· pIoyt<"'s responses wert not timely. [n Kyriazi p. lI'akno EI«. Co.• 476 F. Supp. 335. 26 FEP Cases 413(D.NJ. 191'9). Weslern Electric Company was found guilty of discriminating against Kyriui because her CQow.,...kers sexually harassed her, and two of her suo pervisors knew of the oo-workers' con· duct but failed to stop it. The court described the oondUCI as follows: The CXl-I'1lIpIo)-ee:s Mshot rubberbancls at her.

They engaged in botsterous sptCUla· tion s about he!" virginity. They circu· lated an obscene cartoon depiction of her." The court awarded Kyriui. ~n

engln«r. $100.000 in back JIIIY and di· r«Ied thai she be reinstated. The court also required each 01 Kyriazi's fellow workers who had harassed her to pay Kyriazi SI.SOO each and prohi· bited the company from conlributing to the $1.500 payment. [n discussing the issue 0( sexual ha· ",ssment wilhdients.lawyen; should emphasize the JlOIjsibililY 0( liability f.,... harassment by rank and file em· ployees and should SITesS the employ· er's duty to eliminate w""'kllla~ sex· ual misconduct by employees. When traini", supervisory peT'SOIlnel. law· yers should u~e tM poI .... lial I.,... personal liabililY of supervisors who acquiewe in se~ual harassment by emploj.·ees.

Nonemployee~

Many tmplO)'eTII an' surprised when their counsel inform. them they may be liable for sex harassment by a non· employee. The guidelines PfO"ide: An "",pIoyer may allO be ..... pon.i bI. for lho act. of non.mllloj·..... with rnpect to ...,. ll<lrall .... nt III ~m­ pIoy_ in lho workplaa. wh<u lhe employer (or its IjI<1It' or suporv;· -r "",pIoyuo) k_1 or lhouid "-",, ~n III tho QiXldIlCt .nd fails to \au immedillte .nd appropri"", _II,,, 1lCl1Od. In ~na-lheso til .... tbe Comm,,,;on will consider tho ~.t.nt of the .mploy.,.'. control 100 any OIher Iq;aJ rnpon'ibi~ity wkich tbe "",pIoyn may "-,e wilh r~'ptCt to tk. conduct of s uch

--

CourtS ha"e agreed with the EEOC Guidelines. In EEOC ~. So, Rtdlly OJrp" 5iJ7 F. Supp. 599, 24 FEP Cases 1521 (S,D.N.Y. 1981), a female lobby al!~ndam ina Manhattan office build· ingc1aimed that heremployer had violated Title Vll by forcing her to ,,·tar wllat the employer called ils "Bicen· lenn;al uniform" while performing her duties u a lobby auendant. The uni· form. which the court found to be "short, revealing and sexually prO\'OC' ati,e." solicited unwelcomed sexual (XJItImtnl! and fI'eII urtSl rom passersby.

After ,,·taring tilt uniform for two days. the plaintiff Ttfused to wtar it further. The employer ga'~ 1M plain· tiff a choia: of wearing the uniform .,... being terminated. Instead. the plaintiff quit. The COurt held that the emploj·tJ"

knew of the sexual harassment and did nothing to prevent it. and thus made the plaintiff "remain, as a condition of he.- employment. in a position where she would be subjected to sex ual ha· rassment on the job," It takes litt le effort to imagine situa · tions giving rise to employer liability for the sexual harassment of employee'! by nonemployees. Such nonemployees as vendors. consultants or contractors whom the employer pennilS to enter its workplace can be sexual harassers for whom the employer win be liable.

I'unher. il waiters or waitresses in a restaurant are subjected to sexual harassment by patrons, the emplo;·er. under the guidelines. would have a duty to StOP it . A salesperson who must call on a customer 01 theQpposite sex and who may be s ubjected to sex· ual demand s in return for ordeu. would be a victim 01 sexual harass· ment and the employer could be liable for that sex harassment if the employer knewof it or should ha"e known of it and did nothing about it.

"Revcrse"' Harassment [f a female obtains promotions by granting sexual fa"or5, do those whom she passes by ha" ea claim for sex dis· crimination? The EEOC Guidelines anSwer this question affirmatively: Other related pnl<:t ices: "''here em· pIoymenl opponUnilOes 00" bene/it s are gr;lnted be<;ause O/.n individu · 81', ~ubmi$sion 10 lhe ~p10l'ec's re. quests fOO" ",xual lavors. tt.. em· ployer may bt held liab!. fOO" unl.w· ful sex discriminat ion against OIho-r persons who ",ere qua]ifiod fOO" but deniod t h.t employment oppoc1 u ni t y or be""fit.

ThecourlSagree, In TINIl"ov. Nimmo.

570 F. Supp. 1197.32 FEP Cases 1401 (0. Del. (983). the court found in fa"or of a lemale employee who was not awarded a promotion bocause the pfO" mOlion was given instead to a c0worker who was willing to grant sex· ual favors 10 Ihe supervisor having JXlwer to promote.

Law;'ers must advise their corporatec1ients that an apparently consen· sual sexual affair between a supervisor and a subordinate may res ult in legal problems. Even if the subordinate ne"er raises the issue of sex ual ha· rassment. o>workers may.

Prcve ntion The EEOC Guidelines provide as follows wit h .-..spec! to pre"ention: Prevention IS the ~t toot for the elimin. tion of sexual har;lssment.

An employer ,hould t.k~ .11 stops necessary to lITe"ent sexu.1 harass· ment from o<x:urring. such .s affir· m'l; ,·ct y rai.i ng t he .u bjl!Cl. txprtSl!· ing IlrQng disappTO\·.I. dewlop;ng .ppropri.tt sa net ionl. infOO"ming em· pIoj-ees of their righl 10 raise and h",,· 10 raise 'he i.'~e 0/ harass~nl und.r Title Vlt. and de.eloping methods to sensit;'e all concerned.

The guidelines do not imply. much less guarantee. the adoption of aflir· math'e Steps will immunize an employer from liability. Rather, an em· pI(}yec who knew or shoold haye kno",," about ongoing instances 01 sexual ha· rassment can escape liability only by proving it took effective action to cor· rect the situation. Thus. an emplo;'er can minimize exposure to liabilitj' by instituting a format policy against sex harassment. providing a grie"ance mechanism and taking prompt disciplinary action against offenders.

If a complaint 01 sex harassment is made. both parties should be inter· viev.·e<:! and appropriate action taken - that is. prompt remedial action rea· sonably calculated to end the harass· ment. Investigation may be difficult because charges (}I sex harassment by one employee seldom will be admined by another. Further. improper requests for sexual lavors are not likely to oco;ur in a group. SO witnesses will not be available often to corroborate either pany's contenlions.

Because of the difficulty of determining the truth. lawyers may have to ad vise in novat ive procedural sol u t ions 10 sexual harassment problems. Theie solutions may include transfers. dose management s upervision after sexual harassment complaint s are filed or counseling rather than immediately resorting 10 disciplinary procedures.

H(}wever. where the facts SUpJXlrt a claim 01 sex harassment. management should nOi hesitate to use disciplinary procedures to effect an appropriate remedy up to and including discharge.

Damage awards for sexual harass· ment ha"e been staggering in the past and will continue to be. In (ldrk v.

World AirlO'OYS. f~c.. Z4 FEPCases305 (O.O,C. (980). the plaintiff resigned because of off-color remarks. offensi,'e touchlngand propositions by the company president. The court found no Title Vll violations, but did affirm the jury's "erdict of $52.500 against the employer, W(}rld Airways, lor sexual assault.

These cases also often receive head· line media coverage. Just Ihe filing of a sexual harassment case can be deva s· tating to the employer's public rela· tions and equally devastating to the reputation of the individual wh(} is ac· cused 01 harassment.

If the potential monetary liability and adverse publicity im'oked in sex· ual harassment suits are not sulficient to prod lawyers into advising their clients about the potential dangers of sexual harassment claims. the fact that sex harassment can be a major ,ause of unionizalion among women rna;' do so. One union organizer has Slated sexual harassment ;s "the sin· gle thing in the workplace which radio calires women more than pay."

Since the definition 01 sexual ha· rassment is detennined initially by the

Fred 1\'. Suggs. Jr., iso 1975gradlmleof Ihe U"itOlrsily of Alabama School of IAwa"t/ iStI /XIrl"er iN Ihef;r~1 Qj Ogk· 1m. Drakjns. Nash. Smook & Slell'Orl ofGfflI~ui/k. Sc. Suggs isa member of Ihe Alabama. Hondo alld SoUlh Caro· lina bars,

person bei ng haras!ied . the potenti~1 for abuse is constant . Sex ual harass· ment claims are an ob" ious way for a disgru nt led em ployee to ret~ l iat e.

Simply put . permitting passes \0 be made ;ntheworkplilCeinvite'! a lawsuit.

The potential for expensive lit iga· tion. bad publicity and lowered morale and producti"ity due to distractions caused by sexua l harassment gi" cs at· torneysadeq uat e reawn toadvise their corpora te clients to take a hard line on sex ual harassment. Attorneys should advise thcirclients to ta ke at least the follov.·ing action: 1. Adopt a strong pol icy against sex harassme nt (a lawyer shou ld not recomme nd exactly the same sex harassment policy for each client. but should adapt the policy to the client's particular needs. taking into consideration the size and com position of t he workplace and the general working conditions {e .g .. office "5. factory ~. T op m~nagement should be briefed onthecost of sex harass·

should be defined and the employer's liabi1it~' for the acts of supervisors. co-employees, nonemployees and re,'erse harass· ment shou ld be emphasi>:l:d: 5. Employees should be told of the company's sex harassment pol· icy; a nd 6. The $CX harassment policy must give employees t he opportunity to register complaints of sex ual harassmen t, enSure that all complaints are in~est igated and pro-

vide lor correcti"e act ioo when appropriate.

In condusion, em ployers should be advised that their employees' freedom Irom sex harassment is another "civil right " guaranteed by federal law. Em · ployel"li h a~e no choice bu t to protect t his employee right. Attorneys should ach'iseemp!oyers that "fun and games" on the job a re a lega ll y risky proposi· tion thaI should be stopped. It is not only the Jegalt hing todo, it is the right thing todo 0

Litigntion Section Orgmlization to be Cons ide red As wa s reported in the Ia.t Issue of The Alab,mlG I~,W)'C., Tennent Lee. c hairman of the Tas k Force to Organize a Litigation Secl ion. announced plan s for a meeting open to all int{'1"CSt i.'d attorneys to be condllCted during the bars a nnual meet ing in Hunt s,·ille. July 25·27. litigat ors int erested in attending tile meeting s hould write to Mr. 1.ee at p .0 , Box 68, I [unt $ville. Alabama 35B(),j. Those int~rcsted, but unable to att end, s hould let him know of th~ir in terest so their names can beadded to the list of potential se<:tion membel"li.

tr.

ment: 3. The employer should be a dvised to req ui re all members of man· agement to report known inci· dents of sex harassment to one central sou rce (e.g.. the EEO officer): 4. All .upe,,·isors should be trained.

In the t raining. s-tx harassment

(·Yttlln~ ('I~a"'ycrs' ~ctinn

(Fro ... /HI&'

am

nual affair in the host cit y of the bar COIl'·cntion .

In closing . as our former Alabama Stale Bar President Bill flairston of Ilirmingham stated so eloquentl y on ma ny ocrasions . '"Thegrcatncss of our association lies in the unselfish manner in wh ich its membershipdevOies their time and energies in carrying out its act ivitics." 1 am acut ely aware of the unselfish manner in which OUr memo bership devOled their time and ener· gie'! during my tcnure as president of the Young Lawyers' Section. For this ~'ou are commended! r again than k you lor the privilege and honor of being ablc to $C"'e you.

0

BE A BUDDY With the number 01 new ~nOlTlfYG inc:reostng .nI the number 01,00. de<::reMinS, more- and more IInomeys are gc>ing intO practice on their own and miM the bo!nefit 01 the counsehng of more e Kpenmcecj prllClitiorler$.

Tn.: Alabama State Bar Convni!tee on Local Bar Acttvlll(':5 and SeMces " sponsoring a -Buddy Pr0gram" to provide """""" bar members ~ !dowlawyer they may con&Ult if they confront a problem, I'Iftd to ask II question. Of simp." w.tnt drectionl \0 the courthot.ts.1.

If you are a

"" Local Bar Activities and Services Buddy Program Application

------

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Bur Eltlln. Sta tis tics of Interes t Number Siuing for Exam ..... 184

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Introduc tion During 1984 the Alabama State Bar's Task Force to E""luate the La.wyer E ~· pIo6ion reported ""'ny Alabama attor· neyS believe there has been an explo$ion of lawyen, and that supply exc~ de· mand. It further reported a similar pol'T' Cl"Ption in the ~ of the pubOC. The task force recommended. among other thingS, tn.-t the Alabama State Bar survey bar e xaminees so this infor"",tion could be made available to law schools, member. of the bar and interested com· mitt..e&. Topics recommended were prospective employment. nature of employ.

The Lawyer "Explosion:" Employment, Satisfaction, Salaries and Related Data b, Nancy Ca mpbeU·Goymer

mmt, doesirabiityof empjoymentob!ained, compensation and other pertinent factor.;.

With the appr.....aI of the board of bar commissioners, those sitting for the Julji 1984 bar e><Mnination were surwyed on a voluntary basis. Ninety..eight p.e1Cent of the 40J e xaminees completed in usable form at kMt part of the questionnaire.

S u m mal'J,l Most examinees (about 70 percent) were employed in some capacity. An· other 6 percent were either pursuing ad· vanced Study or not """king employ· ment. Twenty-three percent still were """king employment.

About two-thirds of the e><Mninees were employed fuU time, and 88 percent of those were satisfied with their jobs. $eventy-threepercent of employet!exam· inee. considered their salaries "about light" Sonwwhat discouraging is the fact that those working IuD time in legal positions tended to concentrate in Alabama's 6ve larsest cities (as have those admitted to the bar before them): Sinningham. Mobile, Montgomery, Huntsville and T usca·

Table l. Demographic O"ra and Employment of Bar Examinees (Average number in each category = 386)

'0' 21·30

76 perc."t

"•,

3J.40 41·50

'''' 61

and older

.. "" ,M.....

....

AAC<

67 perc""t ~

Caucosian ,~

,

""-

, <, ,

91 perc.,..t

IT'Pf: U.w SCHOOL ATTENDED Accredited. A1abomo Nonoccn!dited. AIabamo

CU.SS RANK 66 po.call Lower ZS percent

17 8 9

Alabama. unk,..,.,."

AcCfedited. ,,<u·.,c·state

26-49t~ 5Ot~

perc.,,""

per«ntile

51·75t~ perc.,,"" Upper ZS perc""t

EMPI...OYMENT STATUS Empl~"'d

No. Employed

U9ol. full time

5.:l pore"", Still _k>-lg "",pkJymont

Nonlegol. full time legol. part "me/lentpotary

12 4 1

Noniegol. p.m t1me/tempotory

M.....,ed study,low Adv.mcod study, non·law Not seeking "",pkJymont

,

23 po",."t

,

<,

ro

100.0.

A question of particular importance left unanswered is whether, and to what degree, the unemployed and underem· pIoyed examinees had tried to WCure employment prior to taking the bar e x· amination. This "",ner will be addressed in future SUfveY$.

D e m ographic d ata Table 1 sum"",rius the demographic data On examinees . /l.1o5t were between 2 1 and 30 years old, male, Caucasian, graduates of a.ccredited law schools and ranked in the upper 2S percent 01 their classes. (Approximately three·fourths of

\

Nancy wmpbrll·Goymer is an ~Ie profl:3SOr of psychology al Birmingham SoulJwrn vxkge. ~ receivcd her /Jache· lor's dfgJ'fe from Florida Siale Unioer· silyand her master 'sand doclora/t from the UniVilrsily of Aill/Jamo.

She "'as assisted in Ihumalysis of IJw dala for Ihisartick byrolkagu. Dr. Rick McCallum, an assislanl profl:3SOr ofpsy. chology, and BSC sludenl Paul lAl"is.

tl'leexarninra reported they ......... ,anked in lhe upper hal! of lM;r gracluating daMn _ whic;h it poMibIe bul unIil<dy; the daoUl art ~ biMed.J Only 7. 1IlIbO'" !II reponed which.

KhooIlhIy anended. 01 theie, 48 wenl 10 either lhe Uniwnity of Alabama or Cumberland: rOne wenllO unaccrediled schools in Alabama. rrQI 10 the Bir· mingMmSchooi 01 Law; 17 womltoou\· of'ltau! Khoob, mDltly in lhe southeast.

There wer. 24\ ClWClIoSian ~, 108 Caucasian f.,.,w.,., 15 black females. 11 black malea aoo Ii~ from other ra.cial groope. (foor 1T\&Iea, tIIIO females). Fihttn exarnineft did not rl!pOrl lheir ... ~ or ~

and 6 percent Tuscaloou.. Foorteen perceru preferred loiocaleootside thow with Jacklon and Mor9an Coonria being cited molt freq .....tly. TwentI/"" 0001 percent ..... ..ned 10 go OOI..,,-...... te; Florida. Georgia and Wasl-ington, D.C., _cited by three 01" mor,u"""'l'io'led eN uch.

ar-.

n.o.e

eeeking employment. s~ oeekins not /liked "'-"wthef lhey; had anempced 10 IeCUI'I! entpIoymoml, 10 ~ it not known ~ they

1!ITIp.;.ym..,1 "'-'Eft

were hMngdifficultyobtanngaposition.

Thirty-l!ight percent 01 lOOse wah fuD· time legal J)CI'itionI were '-"OI'king in Bir·

minsJwn,

15 "",,cenl in Mobile, 14 per.

cent in Montgomefjl, 6 percent in TuscaIoos& and 2 pen;ent in Huntsville. Twoo, more examinmo (l percent ) had SI!ltJed in each of the following counlies: Cal. houn, CoIberc, 0", Oana.s, Hour.ton, Lauderdalt, Morgan and Walker. N'me(4 percenl) were working OUI 01 Itate, with ~ and Wlllhington, O.C., drawing

mar. than 0001 empioyft each.

Of the ~ 1!l<aI'"

lIale<! a prderenc. (1IOfl\e SUIted mc..-e thanone), 53 percent ....anted to ~te in Birmingham • ....t-.en. 30 po-rc...,t 01 the bar'. memben already are located. rd·

BuIi.-...eN a diltannhird among I!lTlpioyen. Sixlftl"l percent were

em-

1!l<aI'"

Employen

...... than 0001 perGerlt ...... e self-employed

Table 2 ,l-100.0.1 employers of exam· inees. Half of all empkJyed examinees (134) ....... working in law fum&. SiKty "",,cent 01 t 1lOIII (n) wer. in fum& of two to ten iawyen; 800ther 20 percent (27) ....... in II· to 2S-member law firm&. Only ~t oIlkac lJol ckoN KIlo prllCtice.

in~work.

Satisfaction and Salary Tabk3 preaenlltmplcyedexaminees' degree 01 "tisfaction with their pOSitions

and their ulafjl rar>gI!S. Molt (88 percent) ,000000ed being sat·

Table 2. ErnpIoyer-t TYPE O F EMPLOVER

Practice $doC"" I"'i Very ...... firm (2-10) SmaI finn (11·25) Medium finn (~) Lolli' finn (51·100) V ..... t.rgr finn (<Mf tOO)

J>m.AlC

G........,mon, P\Ibk <hi ",",

ProMcucorilll pooirion FedtraI court drrk Start coutI drrk (oppcILooe) SIaM CCU1 dnk (circui:.. diotrict) Ott.... /odonoI pooirion

om..- ItIII<I pooiQon

Other louf pooiQon Public 5«101" ~........,.

Public intoral Pf09'M'

""'"

.. ""'" .....

Accounung firm ~

F"onancioI inIIiNl"'"

......

Military (JAGC) ~

om..-~tch

om..- K

II hi(

ALL EMPlO VEO EXA."IINEES (27(1)

, ",,

50 ....,_nl ~

<>

",, ,,••

, <> ,, , <>

",• ,

BYli .....

Corporation

t.-..,1-1001 faculty wh;)

__ and IcderalIewII..

ployed tiler., kaIf by corporatiQns. T_ perCII\I en\erll!dlhe rriitary, thr... percent went into academic MUngS and

Employmenl, job locll tion lind job pref.ren<:e ApprcixWn&lely 70 P"CI!M ......... I!ITI' pIoyed ......... capacity, "bout 57 ,,",,cent in a legal capacity. (See Table I.J T"'-'O-thirds were employed fuD time, 53 l"1"<'..,t in~ , 12 per<:ent in nonIe9&I pOSitloruo. An additional 5 po-rcent were employed in pa.Tt lime or tl!lTlporafjl pOsi. tion" 4 p<ln;ent in klgal and 1 "",,cent in norJegaI poaIlloruo.

TWIIIlty-tllree "",,cent (91) reponed Ih.ty we .. IliD _king employmenl; the ,at WO!re ell her I"JI"IoW"9 advanced study (10 in tax. 0001 in comparative law), or not

Another burth 01 the examinees (711 hdd gowrnmonl poUtions; IM!1" kaIf 01 tkoN (44)cllOllljl.odiciaf clet"kship$a! the

.._ IIftt."lst

SeIf.., ,,,pIoyed. nonIoogooI

,, ,

, <>, , <>

Mo •• Than Ono Employer

leen petel'lll pre/erred Mobile, 12 per· eent Mont!JOlTWf;l, 7 perc...,t Huntsville

,.

JolJ 1985

isfIed with their positions; OYO!T hall (57 percent) wert highly satisfied with them.

ThoM in fuD.tim£ legal poIirionI _ I ewn more positive; '11 percent _ I MI· isIied with their empioyment. 69 percent higHy IIo!Itisfied Bnd 28 percenl moder· ately latislied. Least satisfied _ l lhoK ill nonlegal po$ilioo$. particlllaorly thoK ' - in pan·time or temporary poIilioni.

Half 01 IhoM ....t.;) werl diaJatislied ciced NIary as lhe reason. Nt'atIy hall ciced Iypeol wori< aod .,....,Iowth, ryp.0I employer. Other ccmploims indudedjob location aod penooaIity conIIictl with (Qlug"et. ()oe.third 01 ..0 .. ><amiron'l repOned Mnuailtarting saIarin in the $20.00] to $26.000 range. However. 43 percent ,ep:>rted makiog low than $20.001 a lIta, . including 1!J percent makiog $16,000 or leN. Aboln 23 JI<'<C<'TII. 1'<'POf1ed rNkiIlg more than m,rm annually. Lookirlg IIpara!" ~ those in fui.tiroe legal ~ tioros, the dala """ ........

MOlt .. xarolnees ........." IAriIfied with theirloabria: 73 percent oIthoKlIIltWer. ing the Question said lheir saIarie:t wer. ~1I00u1

right."

Table 3. Job SatisfactJoo aod Salary AU.. EMPLOVED EXAMINEES IN FULL·n ME

EXAM INEES

LEGAl POsmONS

JOB SAn SFACTIO N

-......... VOfy urosatio6od

2,,*,0..,'

"""

Modtrbloiy unoaIoofitd ,~

W.<~

$8.00). 16.000

~ ~

""

16,001·20.<XXl 2O,oo1.26.<XXl 26.oo1-34.<XXl """'" 34.<XXl

" "", ~

.,

M

IoOgh Ixt.-err>es 01 the salary '/II"IgI!$, in contrast to lhe uIarift 01 eN W"'''ns. wlW::h cUt",td mid·rllngl. The majority 01 out-of·state 6ChooIgrad.oale5appeared in the highest SII1ary rangn. Firoally. reo 9/lrdiog gome-rill job category. lho&<! in the

,

<I percent

sector or in aoc.w:Iemic poeitioos (with. lew notable exctptlont] """'..

IImCinSt the Ioweot·paid ewarniMa; lhoM in bul.ineuor in the mililMylended 10 be the highest ~ 0

public

Analysi.: import allt "ariables Data obtained from the survevdid not dittinguiIb vay wei £mPcyed from un. ompIoyedaoduo .... ,opioyedexar, io III. but two ""riabIa ........... partieuWly iII6SO' daled with job &atis{;>ction: ernp&c.,.mmt statllS and &aIary. Rath<'r predictably. a P'OPOO tioo .. t...... hishor numbef oIlhoK in full·time legal posirioos. ""!re ""'V latis/\ed with their job.. Also. thoK with higher IIIIIMia _ .. more lkeIo,o than thole with ~ IiIbries to bI satisfied with lheir

--

The five variables

~ iII6SO'

dated with saWy. in order 01 impor. tliOCI. _I: clMs rank, race. generaljob

ClIIegoty. twesdn:olarten<ledondful.m./

pan .time employment .tal.... As mighl be e~pecled. the rroajority 01 part.time employea reported oaIariH in lhe two IowHt saWy tarlgi!6. whereas the major. ity 01 ful.tione employea reported I'9>er sa/.)na. bat, ....... in tho! Iowr:r 50 per. cent oIlheir classes (with a few !lOUObIc uceptionl) ~dO.po .........1iooIlitely oIten in the Ioweot salary rangd. III did non ·whit ... and graduat'" 01 nonaccredited 6ChooIs. Salaries reported by blad.. tended locluste. atlhe low and 'fliolively

Introduce Your Clients to a Valuable Service.

Rder them to 8~ Valuation Scrvicc:s tOr open tkttfmimOOo of fair m.mcr value of husifleSS($., and financW :uuI)'5i$ and consultation in CLSeS of:

o Estate plmning

0 Bankruptcy

o

0 M~or:ocquisi.tions 0 Bu)'-6CU~u 0 Dissident stockholder suits

o Estate 5d:tlemmt o Marital ~u tioru o Rtapitaliutions EmpIO)'et stock

~p

pbns

p~

Cont:Kt Dr. Jo hn Davis m, 1926 Fourth Ave. N. , Birmindlam , AL. 35203 (205) 328-3()1}8

A General Practitioner's Introduction to Patent and Trade Secret Law: A Primer on Intellectual Property

b, Harold See

Patent la ..... il a specialiU<! area of practice, The nofHpecialist attorney should not attempt to obtain a patent for a client. but there a re things about patent la ..... tilt allomey should know.

It is hdpfullO begin by distinguishing the major forms of "intel~ual proP" eny."

Definiti o n s T ht three major ClIlCgOriell of intel\ectual properly are patents. copyrights and trademarks. Rough definitions of

these three folio .....; A. 1' ,\TENT Apat""tiufedtn.hUllu· \Or1ly i"l'" ted fI'IOnOPOIy 10 _ ...... or 1111. rnxhi.:. ""'nufaclurc; a oomp:1l<tion d. ""'tier. or • ~

,.

C. TKAJ)EM AIIK A

trad~mark (or tr.l<le ""'mt) il a Ilalc law granled monopoI~ in therighllouSU mark on good. 10 designale them as coming from a particular 1OUret: (or on • OO,i_ 10 identify lhe bu.i".,..~ T~.~ federal and llatc ng;.I ...·

tiort ..:hemtt..

Source o f federal authorit y

The Unittd States Constitution. Ar· ticle [, Section 8. proYides: -n..~lhall ha,~I'owft"

...

Commerce with foreign Nation" and among the 1Ie\'....1 St.tea. andw"h ll>c Indilt n T ribcs .•.

(8) To prnmotetl>c ~ d. ~ and uodul Ani, by otCUring for Iimilt<! T,,,," to AUlhon and ln~n· ton the exclusi.e Right to their ~ I IlK.t,' •• Writ in,. and Discoveries

(3) To ~late

Clause (8) is the source of federal po..... er over patents and copyrights. By application of lhe 5Uprenuocy clause conflicti .. statt law mUSI yield. Clause (3) is the sourceol ftdtntl aUlhorilY for a trademark registrat ion system.

T~fore. although tTlldemark regis· tTlllion il limited to interstate rom· mtroe. patents.nd copyrights a~ nolo Patent la w (35 U's,C.A,

§§ 1·376) II. Who may practia! pat~nt taw?

L. Pn.cIic:e ~ tl>c Pat~nt and Tradml.lrk Offia! (PTO)

Practice befCft the Patent and T fade. mark Office (PTa) require! registration. ~slr.tltion may be as an "attor· ~"or as an "agent." To bea patenl allorne)' ~ must be an attorney in good. I"nding admitted to practice before any United States coun or the lIigoo\ coun 01 any slate or territory 01 the Unittd States.

In addition he or $he shall have submitted a romp/elfd application. es· tablished good moral character and competence. and demonstrated the requisite legal. scientific and technical qualificationl. and. of COUnle. paid the preSCribed fce. To establish the legal.

IcientirJC and ttchnical qllalirlCltions, the applicant must take and pass an examination. The examination iuchedilled in Marcil and September of each )'ear and is given where civil service examinalionl a~ given. Tbere a~ special palenl b;ar ~vie ..... courses designed to pnpare the applicant for the legal. regulatory and tecllnical aspects oIthe uamination. To be admitted to the e~amination the applicant must ha"e "" degreeor the~uiyalent t hereof. from a college or school of recog. niztd standing in one oIthoe following IU~I; Applied Physical Science.

EItctI'l)llQ. Engi nceri ne (Aeronautical.

Agricultural. u.amic, Chemical including E~rochemical. Civil, Electrical. t:ngincering Physics, GeoIogi.

CIlI. Indust rial. Mochanical. Metal· lurgical. Mining. Nuclear. Petroleum), General Chemistry. Marine Techno!· OIlY. Organic CItemiStry. Physics or Te~tile Tocllnology. "'A dcgr~ in .nothfr subjKl may also qu.lify a PCT$Ol110 bt admiut'd 10 take tl>c examination wllHf: I>c has oomplc1e:1 30 .......stet houn; in chcm;ury or 24 _ I f r houn; in pbylic:o or • a:wnbillfd total d. 40 ~ mosl .. houn;;n chcmio.t'l'. physico .nd .,.poem... ~

Cenain biographical &cienoe and ge. nelQ courses may count, as may ex· tended practical engincerine or scien· tiroc experience.

What should bt:clear is that thegen· eral practitioner","Mlobtain a patent for a cli ent. but must refer it. or any other Jl3,tent mat ter befo~ Ihe PTa. to a patent attorney or agent.

2. Practia! btfo.u ~di.tritt C:OOl1 The alx>vt rel\Tictionsoo nol apply to infri~tluil.l in ftdoenl coun. but one should ronsKlft- Disciplinary Rule 6-IOI(A) of the American Bar A$" mation C«ln/ PYo/mio>llll ~i·

hilily: Iawyerlhall not; (I) llandle a 1cea1 ma!l" "'hio::h he knowa orshould know lhal he is not COl"Il~ ttnt to handlt. '';1Il001 aosociating wi.h him a lawy.. who i. COl"Illll't""t to Iulndlt il." ~A

Thi l ltClion of tltt: Uide ..... as deleted from lilt Uid, as adopted in Alabama.

Ahhouah ntt/alive implication might suggest it i$ethical in Alabama tohan· die a matter one is not competent to handle, mnember Alabama did adopt Ditciplinary Rule 6-102(A): "II IawyertJIIlI not IllmIpt to o:xon.... It him,,",f fTOm orlimil hi. liabilIIY 10 hll d~1 for his ~ malpractice."

Pat~nt suits generally are handlfd by patent specialists bt:cause such suits arealmost al ..... ays highly complex and tl'Chnic~1.

B. Whatlhould ,hegmcral practil;.,n.,

k_?

I. What is pate'll •• bIt

.

To bt patent.bIt an invt1ltion mUll (.I) NOVEL ThaI

which alTody is

...,..ally ~n. or is I law 01. ""I,,",. cannot be palCnted; {b)NON.()IIV1OUS Evt1I though ... invention Is no'o"tI. it cannot hc ""t""tf([ if it il mct"fIy a trivial IdvallC\" that would have been otr.iowt to one ~ordi· narily I killed in the an;" (c)USEf1]L Thoein~mionmu'lbe uidul. though il nHd not be btuerlhan what il available. Ulilily i....kIom a ~,HCf1>I in the arnol chemical pnxeII patmll.

2. Who may obtain a patent Only the iNW"/1IT (or inventors if they worked together) may obtain a patent. Noone mayobt.aina patent on anythina un1esa he or she in fact in· ,"tItted it . If more than one person independently invenl.l the same thing. the patenl goes to the fi\""lit to invent.

This priority i8 NCJl determined by priority of filing. or even by priority of completing the invention . but by prior· ityof"~ion ," ConoetlIion requires

theide<o 01 ~ useful rt!;uh togetht.' .... ith ~ 5~fic mean, for achieving that ~ l ult. Whether the lipecific means ....ork il not known until the invention is later "reduad 10 pr;lC1ice," therefore. the date 01 COf1Ct1)Iion must he recoo· Struct~ ]ater. ]t i510r that reason im· portant lor lhe inventor 10 ketp lhorough re:;Qrt!s.

3. Wharthe cliem should b!. advi$ed (al Illhffl: .. any QU8I.ion ..... 1 PIt· tnt

b~.

Allhoui:h n.ovftty Ind non·

oIMousnoss I~ .......iml. remtmbtr Ihll PlI ..." hi"., boom isatled on; IMtI«tri< fl Yll'"-ann (I flashlighl 'l)'J)e handle wil h lleverand swaneunached sowhen lhe I W;lch is nipped the levee CIOu_ I'" I WIIIt1" to I .... ' ). I'" lutomat ic dip Slic k elra_(1 small ~ol_lerial h,,...t on dip lIick n,,:epud.; it an be pul in eunaa wilh In IUIOlJ'lObiIe dip Ilirk 10 il 01";111 I'" oil fTOm the dip $lick when the dip .Iick il wilhdrawn}. and I'" malUi'l' .. ndol (I pI..lic .. ndll with prOln,adi ... knobl thll "li811111

t'"

~ ywr f~ I I you war them'').

(b) Movoe promptly 10 tile a Pllml application. lid aI_ltyan pmrenl an in .. ntor from obtainingl Plt..,l.".,., lhough t'" in •• mOO" him~1f w" the ooly one tod isclo6e I he in,'en tion 00" off.. it for !Mlle. T~ i. a Or>e-yt'I' rrra« period. bul it may be difflCUll 10 ~ "'hm thll period "aned to run.

(e) K~. notebook. TO~II"'le lhal he or she is the in,·"uOI". and illh. fin' inventor. il .. important to k..-p. thorough notebook. II i. liso helpi'ullO hI",,_(fortxample.ICO-~). ... ho is Iwwn toeonf~....1\1..... 1... notebook from t, ~ 10 time. """,.. ach

_

and dallna it. All blank MCliorol

. hould beCToued 0111. and il il

pm......

bIe if the ",itnen understandl the material in t he nocebook. (In,,,,,.uora. IIlqutnt ly Ice Quile ItCretove. T ... ,.;.k 0/ In ida'l beine swim must be bolan<ftl apinll lhe possible n«d 10 IUlhmtialte I date 0/ in''eIllion.)

4. lIow 10 find I patent allomey

Tht Palent and T rademark Offlet 01 I~ U.S. Depanmenl <J. Commera publishes a Ii!\ 01 Alto""''''"'

¥"Is

Rtgislereti III !'Ntliu &/11,., 1M U.S.

Pllle~1 and Trademark Of/let. There an. patenl atlomeyslisted in Binning· ham. T u!lC8Ioosa.I"\orenct. H untsvil~.

Perdido Beach and Phenix City. The ad\'antlij/e of a local anomey is lhe proximi tydlhal anomey 10 you. The advanlageol an Arlington. Virginia. or

Wuhil1l1on. D.C •. ~11~ is the prox. imily \0 the palenl office. The advan· laget of a sole practiliontr or small finn as compaTed wilh a large ""t~nl law firm is t~ same in Ihis as in other technical areas. A Ia'l!(' palenl finn probably an handlt many more pr0blems 15 rouline: on lhe 0Iht.' hand. a patent IWlicalion is much more hkely 10 be handled in a routine manner.

5. Thecost 01 a palenl (I) An ;";tial determInation 0/ PI' .... laboijty. induo!i,," pal...1 -.-dt. ordi· narily Ihou.ld mst no more Ihln a few hundred dollars. CIYmk:a1 in""nlionl probobly will be more (Oftly than mechanical invmlio(os. Mor.. com pIex t<'Ch· r>OIo8Y and unexpoCled probItms Un run the f'«'l .... considenbly hi&hn". (b) A Plunt on • Simple invention. ,f I....... Ice no problems. thoukl run no ~ thin I 1..... lho.."I.nd dollars. ~ u.ually ace IO<I'Ie pn;ibIoml. and. 0/ <:(O.nW. major dilr><:ultios in I'" patent O/flCelor eumple. a priorily fiflht - can run uplhe _t consicImobly.

6. How long will it lake?

Inilial action by the PTO will take from four months to Ihr~ years and issuance from one y..ar to four. wilh two years being Iypical. Efforts are uncle!" to spell(l up t~ procedure.

"'.y

1. Palent infringtment In general. the making. usingor sell· ingofa patem~ invenlion withoutlhe authorilY of the patenl ownrr is In inlrilli'tJllf'nt. Whetht.' the Illegally infringing device is Ihe !lame is det~· min~ by wkether it accomplishes~· senlially Ih" same rellUl1 by ell$entially lhe same means I I thaI s[at~ in the palent claims.

One should distinguish between the patenl and I~ OOoice in .... hich t~ in"enlion is embodied. Once thede,·ice is sold (e .g.. a CUSlomer buys a patenled electric IMV....) the patent OWMr has paTt~ with control ollhal device. and the pur(haser may use it. ~Il ;t.etC..1S he or she SftS IiI . Whallhepur(hastT may "<lido is make. ust or sell anothn shaver like lhe pal"nled one. In addi· tion. one infringes il he or she aClively inducu another to infri~.

C. The trade KCrtt aitemali"e There is an alternative to palenting.

11 is the Slate law dOClrine of trade

KCrttI. Comment "b" to the Rt:tJ4Je. "'~., 11/ Torll giVe!; the lollo .... ing ddinition: ··(J.rfini'iQ" I>/'",<h1«rtl A t.-.de ~ may contill of any formula. ~nern. deYice ar compilalioro <I. in· formation which is ustd in_·.lJua. m.s..and ...hich"_ h.im In".,..,.... tunily 10 <!blain an ad ..... n . _ competitors who do noI kllOW or uK it. It may be a formula for a chemical com\XIUnd. a )lI'"OC""!I 0/ manulactu," ing. tratineorpm;nvingmaterial•. a Plltem lor a machi ... orotherdevio:. or I list <I. ~ It d,flers from other _ infomoation in • busi"", (.... 1759) in that 1t;1 not ,imply information as to lingle or ephemeral ..·tntl in lhe condUCI 0/ I'" bu.inen. I •. for txample. I'" alllOllntorothertcnmo/a_ bid lor a eontrlCl or the salary 0/ oerwn tm~ ar lhe """,,";ty in_menlll made or oonlemplatod. ar the date fixtd for lhe InIKMJroc:.men[ 0/ a new polie)' 00" lor bring;na; 0111 a Mw model or 1M Ii~. A tr.tdc oecrtl isa ~or deYice Ioroontin_ UK in ,be OPtf1Ition 0/ lhe bu.; ...... ~lly it mat .. tO,he pr'IldllCl ....

0/ good •• H. lar txample. I machine or formula lor the prodllClioro 0/ In artie"'. It may. however. celate to ,he ...'" 0/ good. or 10 ot her ope.. tionl in the bu.; ....... such as. code lor de1...... ;niOll ditcoun, .. rtbat.. or ot her mo_ "ions in a priao lilt or ala· Iq,rur. or a List 0/ .pecialiMI cuuo........ or I melhod 0/ bookk"",pina: 00" other o//ioe management:' Trade secret protection applies only 10 lhe improper "king of a trade secret and not to lhe &ecrel ilself: "1757. UABI U TY fOR I)[SCLQ· SURE 011 USE Of ANOTHER'S TIIADE SEC llt:T _ GENEII AL PRINCIPLE Ont who disclosta or UHI .nother·, trade _ ...... Ihoul I privilfsoe to do to. is liable to IheOlher

;,

(a) he discovettd lhe _ by im· PfOIlC1 m~n •. or (b) his dilCJo.u~ or use contl,tut..

• breach 0/ oonfodmoe rtpOItd in h.im br t'" 01 her in disdol,I'C I he _tohim.or (e) he",.med,he_lroml,hird person with notice of the floCll lhal it wa.I ItCrtl.!Id thlllhe Ihird prrton discovutd il br i....

PfOIlC1 ........ or 'hll lhe Ih.ird _·sdilo:lo6u.-ed it ..·.. other· ~ I br8ch 0/ hi, dUly to the other. or (d) he learnod the ItCret wilh notice

j,.q 1985

of the factlillat 11 "'as a S«rtI and lhal '11 (hec:lo5ure ""as made to hIm by mistaloe." for t~ secret lrade secret. i\ lrade I«rd must ~J«rfl ~nd i1 mUSt ~ wstd iff OM's IrudtOTb...ilU:SJ, thereby giving one an "opp::rtunity to 0btain an advanlage over competiIOr'S.·· T he stCTeCy ~uiremmt means steps must be taken to preserve its secrecy.

These s tepll usually lake the form of precaulions against third parties dis· covering the ilecTet and eslablishment 0( a confidential n!lationship with anyone (=pIoy«s. joint ,~murel'$) to whom the secret must bedisclosed.

Mis.:appropnation of. a lrade secret ~ui~ tM t~ secret ~ disclosed or used in a breach of. ronfKl<.'nCt, or lhallhe Inde S«R1 ~ di5CO\'emj by improper ~nl (the use 0( criminal or tortiOlls ~n$, or means tlla! are OIh· erwiseotJtectionable). Di5CO\"ery or use 0( the trade _ret absenl a breach of. confKlenoeorlMuseri improper means dots not constitute trade!leCl'et misappropriation. Thus, independenl research or reverse engineering which discloses the invenlion is pennissible. and 1M original secret owner is without remfdy.

PTOIection lasts only as long as the secret remains 1Iecret. or would 1Ia"e remai!lfd _ absent misappropriation. Thus, whilen a gtnmtJ proposi· tion injunctive mieve and damages are available, they generally are mea· sured by the lift 0( the trade secret.

TradeS«ret law is r«OgIliztd in Ala· bama; Pti rls & &..vict Ci>mpaN), •.

Joy Ala'IIl/aclu ....ng. 439 So. 2d 43 (Ala. 1983).

0 Whal is

~uirm

protection is, fi"I,

~

,,,,de

o..m

ATTENTION! TWO CONTESTS TO ENTER. ..

An ENT.ON ALL POETS

""""gron,.. n. ,...... '--. inst~ad 0/ oubmot'ong!/OUt ohort "ones. ...., One. _ , 17MAbbama Lawyer io oponoonnQ' t ,",,(~Ior members 0/ 'n..AIab;u .... St ... &t II!'Id ~ .. ~ ..

-

...... !/OUt but II!'Id most mfmO<abIo pooofTy. w. ~ ioOU ,o"",.,-! ~oor.: n.:..e ""'onng .. ,her ....... be " .. on good .. anoIOoy 0/ tho ............ Sc .. e &or or .. udent. low ,,,,I>00I

.....

,obe..

"'endons.

Sub!e<I """'" .. compIo1 .... '0 1>A'1>t_'. <'-'9. J>ox.mo ...... be on H' ~ \\._, typ<d onddoul;olo.opoced.

Tho oIeo<h lor ttna .. Sqx",,", 1-' Tho ~ poom, ......:I p::oosib\y others. will iOppoNr "' ,he NcMmbrr 1965_<01 17MAIobamo1.owyooo- I~ .... I,mlted toone (1) pooi>t entry, but"" """Il>A'1io:ipo'~" 17M Alabama L_ _~

»,

"'''"''''''11 ..

""""'~ Part>:opanto""""'. ...e urged to submn ~nt"" 'Mly. r~,her ,han watt un,iI the cloou>g date. s..nd 'WO <opoo to:

17M Alobomo Lawyer PO. Box4156 ~.AL36JO\ .~

i<'clJde...,.. """'" and ~ "'"I' be IT«hed dJms day.

me

,.p ..... .........t.o. ....... ioOU

... TTENTION "'U ... M... T EUR PHOTOG RAPHERS In - . I<> ow ........ _ _ :no. ... """""" t-yo.. otoo 10 TO _~ ... rbotogr. rIov .......... n.... ...... -..,, _ _ or pmto ~ wID ... UoMd .. _.r ohoI. for ,ho jaw""" no. ........... ~opto wLI _ on ,ho _or 0/ ,ho J", ... 'Y ......

0/ tIM ... """""" Lawyer.

Ss> ,tft .!Iono: Pbotogropho moo' ... oIoot ""01IcaDy, to< onLot9&" m••' po.or»Ola. no. Alobamo ~ 10 In ou,doot

In,.,...t'''

-.

"'l.obom.. ... IIOMI _ . l.o""r.1.ot'" ... bj.<1. t.... h • • eo,,,,,,,,,,,," • .. c.) ond .~ W. you I... would m..k. 0. "O}I.<atchlng··

'0

tIM "'Iobamo ~ ...... ttomrt mum aJl ptoologr.pho not UMcl for _ . ~ , _ ..... bu, wID not .....Id lor _ mIopload. So ..... to _ '" Indn card WIth I'<"" ond oubjooct mott .. 0/ oncIo:rud ~opto , 0;:

'"ponstbio ...ror_

~~'­

P.O. Box 4156 MorotvomerY • .oJ. 36101

'PIeuo Lrodoodo _ _ ond mov ... ,eadood dori>g .... <loy.

0

tolorl ... ," .................. you

July is the Month of

Transition for Committees Looking back A511le 1984-85 progT<Im yfaT dlllws loadole. a look al the "uk of the bar'.

37 commiuees and 15 task forces !"evnls thtir commitment to the pursuit of txC('I\ence.

Since August 1984. ] 12 meding~ have b«n conducted. Wil h an average

of 10 per month. or one every 1WO working days. Most have neces!l;laled traveling and giving up a day a1 the offICe - H percent "'c,.., conducted in

Montgomery and 22 pe1UIll in Hir. mi,.ham. Friday was the typia,1 meet· ing day (1S percent) and 10 a.m. the typical ~inglime. Thursday wa.1 distant S«OI1d choice for meeting day (I0 percent).

These volunteers made good U!Ie 01 0\1. bar's facilities: 63 of the 85 MOfllgomtr)' rned.ingS were conducted a1 bar ~lIartffil or the Cenler for

Professional Responsibility. UlW firms in Montgomery and Birmingllam hosI<'d 41 meetings. Takingthtir charge "cry R'riously, the Commill ct: on Cor~Cl ion al lnslitulion" /lnd P ro · cedures chose appropriate meeting lilH: Holman Prison and Ihe Sl ale

Callie Ila.lICh. Nont 01 these 400 btoen reimburstd for

volllnl~

has

ex~

anociattd with meetings.Additionally. tilt')' havedoNttd P<lpeT. post• . l«Mar· ialluppon ,md long-distance telephone call, for the good of the bar .nd the public.

Curre nt e ve nl s

A$ announced in the May issue of thi S ;OUrnal. the official Alabl?_ &, Di.tdory will be published this month .

II will contain alphabetical and ~ graphical listings of atlOl"lW)'S ...·ith add~ and telephone numbers. plus valuable information of daily use by altorneys. One copy will be furnis htd without COSI to each member of the

bar. Additional sub$:riptioos for staff I~ available for $1.50 beI"<n publica· non. Til/, COIIt w,lI nst to 510 after· ....· ard. This dim:tory is the product of the Oes k B ook Cumm illee. c0chaired by DoroI hy F. Norv.·ood. Mont · gomery. and B~nda Smith Stedham.

Anniston.

The Comm itt ee On Lllwyer AI· co hol a n d Oru to! Abuse, as authori~ed by the board. has for~ the C~ Law~ Foundation. Inc ..

I noo·profitc:orporalion. Broadly Sl3ltd. its purposes I~ to tducate the kpl communilyallOl.lt tht distase 01 chern· ical ~ncy: ntablish a oonlinu· ing education J)rqp>lm lor lawyers,

jud~

and thei r families: assist them in I«Uring trultnenl:and publish a nd d'Slnbutt IIlformation on Ihf: natu~of the problem and the availabilit y of htlp. Named as inilial IMlSletS w~ Judgt John M. Palterson.Judgt Vall..

McGee.J. Michael Conaway. Walter J. I'rice.Jr .. and Alabama State liar presi· dcnl-clect James L. North.

The commiltee will host an alcohol· flft t.o.pilality suite during the bar' annual meeting in Hunts ville and in· vi tts Inleresl ttl al tarneys. SPJU!IeII and g\leSlS to vi$it with them.

As rtCOOlmendtd by IhI' P e rm an· ent Cod e Comm ission, tht board hu approved and sent [Q the supreme

Imagine,

You ' re about to erect a spectacular new office tower.

There's just one small hitch, The $lte for t he monumental new office building seem ed perfect . E1::cept for one t hing. The company preferred not to have a traIn running through t he lobby .

But a r;Jllroad held a right of way across the property. and t rain trackS we~ 5c.attered ove r part of an otherwise picturesque scene. A Ilumbef" of other problems threatened to shatter everything.

They didn't. Because Commonwealth worked with counsel and repn!sentativts from the railroad. the city at'ld the company to keep things on the track. SO the Duilding-Instead of the 5 O·Clock e ~ p~ss-arri ved right on schedule.

Wh ether your project Is an office building that"s stretching skyward. or a single·famlly hOme that ·s sitting pretty. call Common wealth. Our service really ~make a difference.

W. turn obSUicleslnto o pportunities.

. . COMMONWEALTH LAND' mu INSlAANCt COHr......

A_e.-_c:-

&

164 St. Francis Street. P.O. Box 2265 Mobile. AL 36652 • (205) 4 33·2534

court for appro"a l a modi fication of Rule 8(c} of the Rules of Discipli nary Enforcemem . T his modifica tion specifically pro" ides that the Disciplinary Board con~ider prior disciplinary offenses in sett ing $u bo;;eq uem disci pli· nary sancti<ms.

Upon approval by th~ board of bar commissioners , President B;'ars has forwa rded the recommendations of t he Fe deral Judi ciary Liai s o n Con,. mitt ee tothe presidi ng j udges in Al a· bama's federal dist ricts. The commit· tee drafted a nd req uested adoption of ~ uniform adm ission to practice rule, un iform rule on a ppoi nt ment of coun· sel in civil rights cases and uniform proced ure on diSCO"ery sched uling_ Further recommendat ions were that: (1) a pilot project bf, established in w hid lawyers wou ld ha ,'e an oppor· tunit y to ask a limited numbf,r of ques· tions during ju ry selection voir dire: (2) jury selection more than one week in advance of trial po!ieS a significa nt a nd serious problem for all parties im'oh"ed in the litigation and should not be reo qu ired: (3) the new criminal justice act hourly rates and case compensation ma ximums be lol1o" 'ed in the th ree districts. a nd compe nsation in indigent cases be au thorized at the maxim um rate.

The Profes s ion a l Eco n o mi cs Co mm ittee has been authorized to i""estigateand reoommend 10 the boord law office management consultants to be endorsed by the bar. Such consul· tams would pro" ide services to Ala· bama State Bar members at reduced rates , Areas of u m sultation would range from f(juipmem to personnel to billing to docket control to lire safety. depending on the allorney's req uest.

Additiona lly, thecom mittce has been au thori zed 10 pursue formation of a legal economics section for membersof the bar, Potential members should write to Chairman David Arendall , 2107 Sth A"en ue North, Suite SOl. Birmingham. Alabama 35203.

As rtque~ted by t he T a s k Foree o n A lte rna t ive Met hods 0 1 Dis p ute Reso lu tion , the boa rd has approved t he concept of loca l mediation centers a nd aut horized the tas k force to assist int~rested commu ni ties in developing such ~nters. It is anticiP<lted the services of such progra ms w ill be a" ailable

on a volun ta ry ba sis to any private cit i~en who ha s a grievan~ against a n· other cit i.en in such mailers as si m pl~ assau lt. nu isance and ha rassment. breach of peace , menaci ng th reats. an imal comrol, t <esP<lSS, la ndlord-ten· ant disput es a nd merchant-ronsumer disputes.

The Co mm itt ee on Program s, P rior it ie s and Lon g -ra nge I'l an. ning recent ly de"oted a Satu rda y to hea ri ng presenta tions on the bar s au · tomation needs. Additiona l presentations wil l be heard. a nd it is lilcdy a preli minary report will be made to the boord during the bar' s ann ual meeting.

Eval uat ing 1wo years' worlc. t he boord recently adopted t he follow ing resol ution:

Be i, resot,·td by lit< Boord of Com· mi5';ione<.o( th~ Atabama St. l" &r that it does formally commer.d tlte State bar. CO,nmilleC on a e li" " 1 Securit y fu nd for thl> dtdicattd

""OI"k perlormtd by it ,

The boo rd continues to s tud y the con· ~pl and propo;.;ed rules and procedures.

Look ing a h e ad Presiden t-elect James L North recently made a ppoimmem s to 47 committees and task forces fOT the 1916-86 program ;'car, Resources a ""il able 10 him in this effort ind uded members' TCS JIOI1 SCS to the com minee preference quest ion na ire a nd eva Iua t ions s ubmit · ted byrommilteea nd tas k force leaders.

All those appointed a'e invited 10 the third annual commin ee brealc!ast Fri day, Ju ly 26, d uring the bar 's ann ual meeti ng in Huntsville. Each com mit· tee and task force will conduct its first meeting of the year at that time and will receive word s of challenge a nd en· couragement from the ba r 's outgoing and incoming leaders.

0 MLP

WE WANT YOU TO JOIN OU R SPEAKERS B UREAU! n..,. Committee on Lawyer Public Relations, Inform,uion and Med", Rela tOon$ IS instItuting a statewide speaker's bureau to Pfovide Spoai<ers for civic organizations, schools, churches otner ;"tc ..... ted groupo!_ The committee will tompile a I;"t of all lawyers in the state who are interested in SCTVing on the speak· er's bmc"u and will endeavor to provide spealcers from the same community or general area from which a reqe>e$t for a Spoaker is received. All requests will be handled through the Alabamll State fur Headquarters. If you a~ 'nterested in serving as a member 01 the Speaker's bureau please fill OUI the foIklwing lorm a nd relurn 11 to 1he Alabamll State Bar. P,O. Box 4156. Montgomery, Alabama 36101.

II i

SPEAKER'S BUREAU APPUCAllON Na~

_______________________________________

I I

Firm Name (il appli.cable ) ________________________________

\ Add,e§s _____________________________________

I C it y _____________ Stale ___________ ",.________ I ____________________________________________ Te ~phone

I II "

Plea ... lis t s ubject s on whic h you a re ..,Oing to spea k

I

I

II I I I

I I

I

I IL___3)___ __ __ _ _ _ _ ___ _ _ _ ___________ J I

cle opportunities ..." •• iso,u"" Uw

1.6 Attcmey'l Fresltllllnl<:upuy..., CoI'iITOIIOIIC2.1 Attomr{l Fees In I 0iI00ta!.., How to Pnwe Them 1.4 ~ 01 Oil. ~ & Mlner.JI Ltsaars - tho - .

22

14-19 ANNUAl. CONFEAENCE G/aI'(l Hotel. Pol", Clear 5p"". . ed by. National CoIt.ge rA.iIfflonIle

.JustIct ¥oil National Coo.MI 01

JINenIIt and f.mly CoIn ~ For InknnItIon: [702:) 784-6012

17 wednesday fEllERAl. COMPRDtE/CSIVE CRIME COtlTAOL N:r OF ocroeER 1964

CIPtaI 0IyCU>. MOo.,,",)'

SpOhn'ed by. I.l00'1900'.' Ccutty S. ASIIodItloI. 0'f(bUt 1.0 Cost: $7 .5OI""",itIeOt;

$22..50/""",_,

For InformItIon: (Z051 265-4793

_W . . . .

--

ao Cost: sea For ~ (205) 261-.4191

cr.M::s:

For

I~

(212) 765--5700

Recent Oe-eIOjA'*,'ts 1.5 F'ropo5ed C/IanoeIII" ~ All'ecdllll fIeIII Estil' F'r1o:tice 1.6 Recent o."oIQpT.,ro '" AIab¥niI Tax L.1wS 1.2 WhIt £WI)' eM! ~ ShooJd

--~

ErMn:h,.rtIIlZNI 12 Cost:: IncII.<Iod .. conwntIan ...."n.tkt,lee For IrftnnItiart (205) 269-1 515

26 friday ElMAONMENTAl.IAW AND REGUlATION

5-9 llIE BANI\RUPTCY COOE RE.£X6.MINfl) ANDUPDATEtI ~oto.e IXMsty ScI'(I(II (;I t-,

..-

1.4u'~y

5poodOOeo tly ~ t-lnmMeAtr.t:Ina..._(AIJ.,olBAj

Spoo .... od by. Jores ScI'o:IoI of law oml:!: SA For InfIlnNtkIn: (205) 272-5820

"'" "'"

18-19 SU MMER CONFVlENCE Gulf SQt, ~ Gulf Shor!s ~""'«I by. ~ DtstI1ct Anomeys

ACE DISCRIMINA1'lOH ~ F<N ~ HaUl s., FrrdIw Spoo ..... ed by. F'rIcliWIO LIw lnmtute CreGkts: 13.8 Cost: S390

July 29-august 2 SHORTCOURSEON ESTATE PLANN ING H<!ton. DMIs Spoo ..... ed by. ~ ~

.......

For IntormrtlOn: (215)243-1600

8-9 PADf'ESSlONAL WABIWTY The FiImloot. SIf1 Fr1nCis<o 5pooSlillCl tly DffenM IIe$Mtt\ 1 _ For InforrrIitiof't (312) 944-0575

for InformItIon: (214) f1iIO.ZH1

13-16

19 friday

LAND USE INSTTWf'E, PlANNING. REGULATION. UT1GA11DN, EMINENT DOMAIN AND COMi'EHSA11DN

..............

COASTAl. IOtIE AEGU\AnoN IN

~(;ICokndD.

__

Credta< 4A Cost: $65 For InknnItIon: (205)861-2 141

5poo .... ijd tly ~ t-11"41rtWMIeraI1a..._(AIJ-A8A) Cndit!: 2.2.5 Cost: S39S For InIarmItlon: (2 15)243-1600

2S thursday

14-18

UPDATE"85: RECENT DEVEl.ClfMEHTS IN THE lAW Vm ar... eM; c.ur. HlIltSWlt Spoo ..... ed by. ......... sme Bir V<U\O

ANNUAL ME£1'IHG "Ih, oupoIis Spa SlIIICI tJy tIItiotIaI A5SOd.ltion (;I

SpoodOOed by. Mirine EiMooo."ehtal

"""" "'""""

~

--

e.o

.,.,.. """"...,.,

CfedII:I: 102 Cost: $35O/rt'IenlbeI1:

S37S/noo 'I oeo 1otoeo s

Cost: InduOeC n tcn'oII!I'Itior

't9RlltIu.1ee For InIo'mItIoo: (205) 269-1515

26 friday SEC'I1ON MEE'TltIGS Yen en.., ow Conte" one! Hilton Hotel.

~Spoo ..... ed by. !Uobaml State Bar SectioI'Is

For

5-6 IHTFIOIllICT1ON TO FlNAIfCtAL ACCOUJmNG FOR LAWYERS ShImorI Oty New York Oty SpJo ..... ed by. f'I'Ict:IsIllII Low Irl!t!tute C/tOIts: lOS Cast: $32!i For InformItIon: (212) 765-5700

s.:r.n.

1~120Z)872.al8B

16 friday HAZARDOUS WASTE LAW MoolbpllbY 5poo SlI eo tly Jcint!I SctoooI (;I Law ~ 4,2

For IntormrtlOn: (205) 272-5620

18-21

23 friday

19 thursday

NATIONAL INST1T\JTE ON CHILO SEXUAl

S CORPORATIONS

PfIACllCAL ASP£CTS Of RE/l.L ESTATE

Sponsored by AiaNma Sodety 01 CPAs

""""ao

County Courthwse, Moo1toome1Y

Cre<lits:

Spoo5ored ~ Mont9Ofl'lflY Crunty Bar

~""

-

!\arms City. Mtssou1 ~ by Natlot\a! C<:N1eqe 01 .J\Mnile FOC InfOlTl'.ation (702) 784-6012

19 monday PA~ONAL

AND SERVIa:

CORPORATIONS MObil. ~ by: AJ.3obama ScdetyolCPAS Cred~ 8.0 Cost: S I05

F(>'" Wormatkn (lOS) 834-7650

20 tuesday TAX PlA NNING IN CORPORATE

UQUIDATIONS MObile Sponsored by Alab3ma Scdety 0/ epAs C/'ed1tSc 80 Cost: 5 105 Fa" Infllrrrlatiof> (205) 834·7650

22 thursday TlPS ON f'EDf:RAL TORT CLAIM

UTlGATlOH Cooni)'

-

Cou1:Mu5e. MOlttgO"lIlIy

Spoosored by: MontgO/'Ile'y County Bar

Credit'l< 1.0 Cost:free/mefl'lt)e(S:

_m

Cost: $95

For Information: (ZOS)83H6S0 ~

Spoosored by: N3tiooaI

~

_ness

2.0 Cost: free/rneII'IberS; S 1SlrIOr1ITIeI1lber For Informatioo: (205) 265-4793

Institute

Credit< 6.6 Cost: S96 FOO" Inkn'natlm (715) B35-B525

PROIllJCTS UA6IUTY Coiiseum Ramadil lrm. Jad<son Sponsored by: Tho UniversIty of M~W1 c..m..,. fa" OlntlrMog l.egiIl

ANATOMY OF AN AlITOMOeILE

ACC1DENTTR1Al Tho Ambassador west CIlicago Sponsored by Prnct\slng law Institute Cred~ 10.5 Cost: $250

ConttrllJlng l.eQaI Educ.ttlm For Infnm'IMIof> (205) 34&Q2:3O

"""-

.._-I

TAX PFlOBI..EMS OF INDIVIDUALS

"""""'

Sponsored by: Alaooma Society 01 epAs Credit5: 8.0 Cost: SIlO

r... InfOC'lTlal:loo: (205) 834·7650

20 friday

27-28

Bjrmingtlam Spoo5ored by. Alabama Bar IrlStiMe 1tr

ESTATEANOClrT TAXATION

Corrtlnufng l.eQaI Edocat!oo For InforTnation: (205) 34&Q2:3O

REALESTATE

--

SpoolSOOed ~ IlJabama soo..ty <A (PM Credits: 16.0 Cost: 5180 For Informatloo: (2\)5) 834·7650

26 thursday REAL ESTATE ,~

Sponsored by. Alabama Bar IMI:ttute for ComiroillQ Legal Edocat!oo For Inl'l::<matioo: (205) 319 62:30

M~"

22-23

REALESTATE Hunts"me SpoosorI'd ~ AJabilma Bar InsdMe lor

Crf(IIt$c 6.0 Cost: $75 for Information: (601)98.2-6590

S 15/1l1WT11'1l'1bers Foc lofOlTJl3t!on: (205) 265-4793

-"..., Spoosoo!d by National eu.;ness 1Mt!tute Credit!: 6.8 Cost: $96 For Ink>rmatim (715) S3~

--

FORECLOSURE

6 friday BASIC HOIJSlNC LAW INS'lTTUTE AUM Utnry Tower. Moo1toome1Y SpoosorI'd by. /Uabarrla Consortium <)f I.e9aI

~­

Credits: 72 For Information (205) 2&H471

26-27 OOVERNMOO UABlUTY The KnIci<ef1x>:l<er. O>icago Sponsored by Deferlse R_lrlStitute, ,~

For Informat\ctl: (312) 944.0575

13 friday

27 friday

For Infurmatiort (212) 765-S700

USE Of MICROCOMP\1TERS IN LAW FIRMS IN 1980s

REAL ESTA'lE

22-24

Birmlngtlam SpoosorI'd ~ AJabilma

SpoosorI'd by. AJabilma Bar Ir\StjMe 1tr Corltinulrlg i.J.'9aI E'4uc.ltion For IrIfom\atJoo1: (205) 34&Q2:3O

TRIAL EVlDEI'lCE. eli'lL PRAC11CE ANO EfFECTlVE IJTlGATlON

ear- IrIStiMe 1tr

Contlflulrlg I.e9aI E.c!ucatim

for

1 ~(205)34M2:30

Ta:HNIQUES i N FrnERAL AND STATE

""''''' ""'-

~

HopI<irlS IflterO:lntil'M'llt3l.

Sponsored by AlI·ABA Credits; 2U! Cost: S4Z5 Foc Informatlon: (2 ' 5) 243-1600

,~>

BASIC HEALTH LAW INS'lTTUTE AUM LitnryTower. M~ SpoosorI'd by Alabama ConsortI\Jm rA I.e9aI s.r.ices I'r<q:'arm

Cred<ts: M For I~ (205) 2&H47 1

BASIC CONSUMER LAW INS'lTTUTE WallaCe san. Commu:'IiI'l College.

Ha"""-'ilil' Sponsored ~ Alabama Cooson;um <A Legal SeMce$ PJogo a" " cn.dKs: 7.5 For Information, (205j2fj4.1 471

,.

-

---

.....,

There are Gulffrom condominiums, and then there is 5eaClwe, TheGreal One, on Ramal Beach between Gulf Shores, Alabama, and PeR:lido key, Florida.

Where high, roiling windswept dunes and 700 feet d su n路bleached white sand meet the ilquamarine sun of the Culf.

'AtIfId class in amenities, which include a manned gale home, skylit pone cochere entran(:l'$, open & sheltered parking.. ~and lobbies, indoor and outdoor pools. frtness center and lighted tennis (QUItS. W~h viCWSoi sea, surf and dunes from within eolCh home sovaS!, soSpeC\.<tCular, that 5eaChase selSa oewSialld.lrd by which Gulf front coodominiums will be meas.ured IOf ye.ars.

In ease of alXesS by Inlel'5lale highways, air and water, as~1I as in consummate luxwy, a vacation homequilc simply beyond comparison.

And if success may speak for itself. consider th is: SeaChase Phase Ii. so ld out. Phase II is selling rap>dly- one year ahead ofschedule. Pha!;e III will beav.J ilablesoon.

So the secret is out; there has flC\Ier before been an opponunitysuch as5eaChilse, and we urge you 10 adllOYV. 1r>SpeCt a model home, or call coiled (205) 981-6922 for addilional informillK:>rl and a color brochure.

THE

GREAT ONE. ROMAR BEACH Post Office Dr_ 2868. Depar1ment E. GuU"5t.ores.

Alabama 36542. (2051981-6922 . ..." N OtIO\' Real!y Company dewlopmenl

e\'~n though there "'as an resen'ation of the claimam's righlS against thejointtonfea!iOl"S who Wf're not panoes to the rt~~ fir" the judgment. The rule ,,'as based on the concept there could be but onecauseof acllon for, s ingle injury, ("o'en though comm,t1ed b)' w.eral pe!WIIS jointly. and Ihat lhe claimant was entitled to only one !I/ItisfaCllon of his claim for thaI mjury. Legal writers have con· cluded this concept was borrowed from I he law appl ied to j<lim estates in property and erroneously applied to the law of obligations Independent of property.'

The results of t1M' rule " 'ere incon· gruous and oIten achieved unjust and unintended re5ults, It WlS not po!\Siblt for thec1almant l o$ttl~ ...·ilh one ton · feasor for less than the full amount of hos damage& because a release of that pmIOn would di$(harge aU Olhers..

Many lIlJul'l'd persons. nOl knowing the eff~t of luch a release, would ac· ~pt less than the full amount of the damageS from Oil!: tQrtfeasor. only 10 find latcr they had ",'alked intoa trap.

The eff~t of the rule also was to give the nonsetllinlltMlfeasors an ad,'an · t . wholl)' inconsistent with the na· ture of their liability. ' O~ legal writf'r has referrtd 10 the rule, as it applied to rtleas.es. as "a s urvh'ing relic of the Colelln ~nod of melaphysics. ..• Pro lanto seu1emenl$ ~ b)' releases ha'-e been &i"en effect in Ala· bama based on lhe prtn' isions of the statute now found as § 12·21·109, At..· INIllla C«It 1975.' This5talute merel)' prtn'ldes Ihat an)' release is to ha"e effect according to the intention of the p.ilrtit$. Relying on this stalute, the

liability, expr~

Recognition of Pro Tanto Judgments b,' J udge Mpn-;n Ch ern e r

) ' B

amendment to § 12·21·109.

AIo/Nlm" Codt 1975. 1M Alabama l,(g1slatull' mado: it clear \hal j..,dgmtnls <'1lteRd pursuant 10 pro tanto selllemeTltJ shall be given "ffecl acoon:Il"lIIOIM"I~sand IIl'emions of the partIes thneto.' Befon the pas~ of lhe amendment. such judgmentt .."trt not valid.

The Supreme COUT! or Alabama has bef,n followmg Ihe common law rule thaI $lIlls/action of a judgment against one joint lorlfeasor operated to discharge or 1l'1it!"e all OIher joint lorl/eaSOf5 olliabilily. even though the judg· ment r«utdthat it wasonlyforpanol the ~a"'IIff'1 damages and express])' r~wd the plaintiffs ,;ghlS against

t""

lhoeother joinllonfea§Or'S.1

In Maddoz r. Ihid City Ha¥iltll

/loon!. Chark$ Maddox. a mioor. claImed that heSU$lalnM injuries while

oo..l"tahz«! when he was given an o,-erd06eol a oml," d",g by his nurse. lie made claim against Druid City

Hospital Board as Ihe cmplO}'cr 0( the nur!leand al$OaKains\ lhe drug manu· facturer, Parke-Davis, alleging it had Improperly labeled t he drug. Aller suit was filed, Druid City Hospital Board made a 1It1llement proposal. Aftf'r lak· ing e,'~~, the trial jud.ge entered judgmnll pursuant to a pn:I tamo!let· tlemcnt ,n fa"or of Maddox against Druid C,ty. T~ judlP'"Hlt prtn'ided that issues as 10 Parke-Da"is, theOlher cltfHldam, ,,:ert 10 be ~I"\·ed. flowe\·er. after I)ru.:l City had I"'id theamount of the judgment ,ntocoun and the Judgment had been satisfied bl' Maddox.l'arke-Da,·is mO"ed for sum· maryjudgmem on Iheground that the satisfaction 01 that judgment eXlin ·

guished any claims against i\. Uphold· ing I1M' trial coun', action in granting t~ iummary judlP'"ent, t1M' Supreme Coon of Alabama again followed Ihe precedtnts esublished by tarlier d«j.

S>OnS in holding thatt~ satisfaction of the judlP'"enl against one tonfeuor opel"i\ted as a discha~ of all other joint tonfN!IOR, In IJllllu ... Gil IJ IJ"l"MS$ Se,."ices, plainti ff Butler sued a number of de· fendants, chargi ng them with having committed various forms of tortious conduct in connection with a fire loss on his house. Butler then reached agreement with one of the defendants under which I1M' lrial cou.n entered an orne.- whICh it enmled, "Consent Pro Tan toJudgment ." The order recited it " 'as a pro tantO judgment for $8.175 apinSt f'ennS)'l\"ania Gertft:al lnw.· a~Company, II operated as a release of that coml"'n)' from all liability and Butler rttalnOO the right 10 prooeed against theothe.-defcndants.

In thaI case. Pennsyll'ania Gern:ral apparently paid the amount of the judgment direct ly to Butler or his al' torney. but no formal entryof satisfac· tion was entered on the record in the clerk 'sofftee. T he supremecoun again affinned the act ion of the lrial court In granting s ummary judgment in f"'M of the Olhe.- defendants concluding tha! the pa)'ment 01 the iud&ment b)' I'ennsyl,·.ni:;l operated as a satisfac· tl(ll1 dl$(hargmllill Olhe.- defendams from habihl)' to Hutler.

Under theOl"lginal common law rule. the sallsfaction of a judgment against one tonfea!l(lror the release of onejoint tortfcasar had the lega l effecl of dis· chargingall 0Ihe.- joint tonfeasors from

f.ul# Mil",,"" C/!enter, oflM f()lllj"dl· cilll rim/II qf Ala"",,",. is II 1947gnuI. "l1lt 0{ NorlhllVt/tnl U"I".rslly 11"" a 1951 /("Od~alt o!lfan.,ytJ UIt! School. /kforr tI«lio~ i~ 197610 his p,.,..,,,t "...III~",

Cht, ut, "'<IS In pri..,lt p'/lc/ia In lJi,minghuJ1I.

,.

supreme COIIrl held a plainliff COIIld releaseoneor more joinl lQr\feaSOJS for a payment of part of the damages claimed and rntn~ lIMo nglu 10 pro~ agaill$l lhe mnainingones-' Unfortunately. the statute "'ill; nQt considered a sufficient ba!lis for Tft:ICl(I. nizilli lhe validity 01 judgments pur· pOrting 10 rtserve the claimant's right 10 p!"(ICffd againsl nonse\lling joint tortfeason.'

T here was no logical reason for mak· ing a dislinclion belween 3 pro 13nlO settlemenl effected by a release and a protanloaell kmtnl exprtsSed by judg· menl . In tnho:T cast. il should have been Jl(I$Si~ to reserve expressly lhe right of lheclannanllo pn:aed against the nonseuhne joinl tortfeasors.

This is lhe po&ition adopted by lhe American I~w InStltUle in Restatement (Seoond) of Judgments § SO. Section50~:

When .. judgmml """ been rendered 'P,n" on.- of .....'niIl perwns taCh of 'O'hQm illia~for a IoAda,me<! in I~ acllOll 0<> "'h"'h lhe judgmenl i. ba"":!: (I) A sali.facllO<> or rew,ase oll~ judg. mtnl. or OOV~nl not to extcU," upon il. or IIIN:r ogre..mtnl Iftminall"S In w"""'or In parllhe jud~nt d.blor·. .,.,hpllOIl. doeI not di",,,,,1V tr..liabil· ill' ollny ollbe IIIN:r _ . llll~ lor lilt l0iii. eJCCe1)l: (a) To 1M extent 1""1 lhe "II,..,,,,,,nl .... y 10 pn>'<ido; aM (b) To lbeu-Ienl r"tqu,~ bpbe la .... 01 IUmy.""p< (2) Any conuS..ra""" rKft"od by lhe j...a,menl creditor in paymenl of lhe j..clemenl debtor' I obIljC>\lO<> d,,":~ 10 lhe eXltnl of lhe amounl 01 ",,1... rea;,·ed. lhe lllllMluy 10 lhe judgmtnl crod,tord all 01",," _ ~ ljab&. fO« lhe

....

The oomment \0 Section 50 indio cates it was intended to give Ihesame rtCOIInition 10 judgments 35 has been given \0 releases affecting a pro tanto settlement, TIMo comment states: a. 1UIn...." Tbe lradltional rule ~ preli.,. Atisfaction ar discb;o~ of a judgrrvnl .pins! on.- 01 .....-er.ol coobi........ thal it dilChafll'd all OIher penonllia .... far 1M lou in q\lCSlion.

Aroord'ncty •• AI jlfact ion ar discha~ 0( • j...a,menl dtbIor ,,1 .. diochargtd lIIiIera liable undtr lhe Ame j...a,menl. liable for I~ same harm undtr ......"'to judgmtnll. or 'Pinll ",hom a claim 01 liability might be a"en.od in a subseQuenl action, The ruleapplicabletoj\lde·

mentl was. counterpart 0( the ruin applicable 10 OXIbIiIon obllp· l>oru had IlOl been mllIC<'!d tojudgmenl.

The lal1ft ruin ,",'ere 1""1 • release of ono tonftlllOr ~Ieued all OIbera l.. bIe lor (be Amt harm. and ,hal a releaseO( ono "joon\" or "joonl aM ....~"'l" prom. iIIor ~ 01",," oudI prnm.-s.

The IlIdlll",,1II rub rqardi!1ll dischal1l<

w""'"

ofOXlbl.... hl""'.-..been"'~ by lhe rule 1""1 In ~menllemtilUlt. ;nllho obliplion 01 ono l uch OXIbIip hal no tffect "" lbe liabili,y 01 another on.- of lhom unln. I~ a(/!Wmenl h.. provISions 10 Ihal tffe.ol. Restate,",nt,

Serond, Tori'

f

885(1); R.. tatement.

Second. CO<>l racl$ § 294. 295. A" IlI>Ijga. ti(,11 "peulllid Ii1 ~jlldp'''1 u.i",p/ys /<l,_IUnI ..,..1111"., 111{ 1111 </4;", "" ../ril/r jl i>IIW, TIIII//«III{dis&/uI'g;1I/: a joulpr,.1 u....1tl11rntfo~ '" lire ... _ ... 1M I//«I II{ dwlul>gi"l 1m frnul obI".,"""- 1M "IlIdtnI nllrfmtits ...

u

Wd (emptwil iIddtd)

Because pro tanto settlements ft· fected by I release were recggnin!d in Alabama over 100 yeaf'll ago, it has been Jl(I6Sible for a claimalll during trial to accomplish a partial or pro tanto settlemtnt with oneor morejoint lonfeason by e~ecuting a releasedi~· charging the aelliing tonfeasors from liabilitY and dismissing the oomplaint as to them while expressly reserving Ihe righl in the release to proceed aglIill!lt the nonseulirlj" tonfeason for thertmaintngdamaaesclaimed by him.

Howf"tr. a pro tanto release could not hl\~ been gi,·tn Ieg;II effect if exeCIlted by a plainnff who wa$ a minor child orin inoompHmt.1t would hl\'~ been necessary that a guardian fiBt h,,'e been appointed to represent lhe estate of the minor child or incompelent. Theguardian then would have to petition t h~ probatecourt for authoritY to agree to a compromise of Ihe claim and execule t he pro tanto release. Af· ter lhe appointment of a guardian ad litem to represent the ward. it "'ould be necessary for lhe probat~ court to heaT evidence ooncernirlj" the propo5ftI pro tanto settlement. If satisfied that the settlement would be u advantage to the " ·I rd. tlMo probate oourt lhen would enter an order aUlhoriring the guardian to execute the pro ta nto rekast and also to lik a motion to dis· miss the complaint as 10 the settling joint tortfeason.'

This procto:Iure, however. contem· plales a hearing before the probate

oourt after at least five days notice and an order by the probatecoun aUlhoriz· ing the oompromi!loe. [f the pro tanto settlement is MgOIiated immediately before or durirlj" trial. il is readily apparent that it would be diffICUlt. if nQt imJl(l$Si bit. from a practical standpoinl tosuspend the lrial for the time needed to obtain authoriution for the execu· lion by aguardian of a pro tan torelease.

The settkmelll of a claim against ,,{{ deftndant$ negotiated O<l behalf of a plaintiff who is a minor child or an inoompetent can begiven binding legal effect by a judgment based on the Irial OOIIr\'sdeiermination from lheevidence presented at a hearing lhal lhe pro. pOSed settlement il just and fai r and in the best internt u tilt plaintiff."

Now thaI. pro tantO judgment can begivm l.epl efftcl. the trial OOllrt itself has the authority to decide after hear· ing evidence ",,,,",Iher il should al>' Pf'O\'e a propo:I&ed pro lanto settlement of a plaintiff who is a minorchild.lf the t rial COIlrt approves the liettlement. il thm mal' mter judgment for theagreed amOUnt againsl thesett1ingdefendant~ while restTvinlllhe plai ntiffs right to pl'lXl!ed against those remaining.

The amend~nt giving Ifgal effec1 to pro tanto judaments thus achieves lhe salutary obj«t u permitting coun approval pro tanto settl.o:rnents in~oIv. ing minors .nd inoompHent persons immediately before and during trial.

Nothing by way of policy or common sertSt' supported tlMo former Alabama rule lhatlhe salisfac:tiooof a judgment against one joinl lortfeasor discharged aU others from liability.

0

u

FOOTNOTES

'Tilt _161,_ ., I

12·21 - 1011, _ ....

C<II»IITiI, .... ~ by "'" NO.85· S11. ~ ...... III _ .... - . . .

- . . tor I :I''''~ 011 ""....,..... OIl

..-

""or

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{"'tt _

am .......

•. ~ m

AIo. $77. ,:s" So. 21:13&0 (I.'t _ •. """" CiI\' Hr»piUI _351 So.2I:I'1 ~ 1o'IL ItT. _ •. GAB ~ 18So.2I:I . . 1o'IL

...

.,

f

_ _ _

'

•__ • _

.....

1~

F.2d 69.15IiJ{O.C. COo.

'irllI: ~ 1M EI/«;I 01 a

_~

Wnh 0... Co.OtII9>r""", .... (lrlr~ 'k; .. 01 1M OI_.S ComoI 1..0, 1 {1 5I!iilJ; _ .

1

U .. 01 rOtl~ Of and ~1 (7I:l Ed. '1/55): 1 _ and ,,"orI_"". lIiOlOtY 01 Eng/iofI La ..

(7I:lU. 1 ~~:3 _ _ WUOtyoilEtIg·

,,,,, 1!/IIlS

/;oil Uo W' (I~l457.~ ~

_.'0

1~

'/kK."". • . AUSlin

CW.l11<31.

F.2d 6I;g ., IIti2 (O.c.

o....JoIf!/ ~ _. 171M. L-

'Wigmo<e.

Ilt'<. 5(13 1111231-

'I/Igm<>f*"' ' ' "' I*t Out otInO>OooA oI<r _

rn.o

e<>notw>I

compeniOn CI ~ "'1"'"1"- m..

1ho , ... mol."_., "'" CI_.. 01

CLE~ews

joint - . 0 . 0 10 • "'OC,,",I/O ., .... 10 Oard knoekt tot.ty. oI,oady oged.nd InflmI. boing quito

_ng .........."'"

He.

._"...;otIc; • ..., ~ 10010. ... 1'IOo.oQ" .. _ ooon No.. ., Ir<>m oe ..... mO<kIing ...

1110_,. ..,fMj,. __ n..1ogioIa.

""",.... Degun., doIlI<iIr 1>10 ..... "' 111m

mo Codool WOOII'l,gl"''' 1 iI028, c.

136.

1 1)."'" ..... lI9oJo1; .. . ... lIJ .... _ _ (4.g..

~

. nd opr_,~.

W._noIDe.an

y"_ 00Qu0I-

_WOol<rportf.for . . . moroIy ........... • "'" 'OliO 01 ..... CoI<iorI P6"io<I oI..,....."n)'l· ~.

WIg"""• • q _ ...." ~01 In frihy •.

Vn/I." S'.,,,, 239 F.2d 101. 105(9tt1 CIf. 11157). ' T"," IdorMical_ fi ... _ o d .. _ _

2282 01 ........._ Coaooll~2'Smilh ._ G.yio. 58 AlII. eoo. _ 11877): Homo To/ephOM Co. •. f~ lM1 AI .. 306, 03 So. Tll 1'907); SIoogd Y. Wri9llt 103 ...... 2001. :lit So. e« 11~J; TIKlmpson Y. N.C & 51 L Roil· way, 160 ...... ~!IO, '9 So. 3010 (1909j.

courl_ . .

b, Mary Ly n Pike Assis tant Exceuti" e Director

"" ~m. Y.""",i.. 265 ...... 5111. 93 So. 2d '28 (1951). ..... oupnome

lis 0IIini0n:

asIi.,_ ..

... The,"""'"" 01 • juOgmenla~n .. .......... i10 I WOIa<:· !ion 0I1ho _ . claim. one! lhelodg·

0>-1><_" .. """" • _ _ _ "Il_ McCoy ' .

L _ ' N.R. ca.. .06A111.333, 00 ~

caMOI De to

So. 10&: sr ............. .. _""-21r ......

105, 11~ So. 2. Who, ,.0 no .. oaicI ............ De """fuNd willl .". .;gh' ..

_ Mom • ., p . pro .. _ _ ..... 10 Enoch ,_ _.~.

01 .". rig/l11O ..... one! held louIo Tho· moo _ for • proporlOono!e owt .. "'" IOIaI am<MJOI 01.". d r . _ ..... tainod_.IuOg ....... ogaIoOl """ S,""",uio , . pro: _ T....",......eo. , . , _ 1~ ...... XJe, 03 So. 7\ 1. By ......... all .... _ "'LIlt De g;..,n ...... ocoorcJjng '" lhe in.....", 01.". ~ SI~ •.

Holland, oupra; S :lit •. T".. 1. Codo 01 19<0. n.._giY.... by OW ... 10. . ._ IIoonoll>ing 10 <10 ",iIh ",""p. pon;oomontCldr._ by judg.....

_nd. ...

"'""" ......... ioin1lO<l" ....... f 28- • •ao. ... _ AI..,.",. Coao 1975. lhe p r _ 00UtI may _ _ .. . g_<Iion .,

~

com~. ,._.·_

..

cIoIm.toIIow·

"'" "'" aw.,;n_ oI';uor<lion"" " - *"<I "'" '-Ing on the meOto 01 "'" compromio&

eo.

... 8iII>op • . Big s.""Y L _ '!III """.

0153, 7. So. g3'll;l1). IIle _ _ """".....0

"'"' lhe ,. "'~ ·CIoIM· at _ "'1 26-"ao. or. .oq.. ..",ludeII cloi"", otioing "'-" 0110<1. .. _ .. "'-" 01 conIrlClt. .. r _ Co.lI.kOIl & R.wOH~v.

Ho_ ;7 ...... 20 • . 12 So. III! (1892): Abovno'/Iy ' . Co/t>oft Hot(JiloJ _,(/, 388 So. 2d .207 V'Ir..'511101-

eo"""

At itsMarch2 meeting in Montgom· ery. the Mandatory Continuing Legal Educalion Commission: I. Granted a wai"er of Ihe cn: requirement to a retired lawyer; 2. Denied credit for '·ideo!aped pres· entations by an awoved sponsor, based on the absence 01 a discussion leader and wrillen materials; 3. App.-o>~AlabamaTriall..awyers· "1985 Austria CLE Seminar. '· April 19 in Montgomery the MC LE Commission; I. Heard a status report on 1984 in· dividual compliance; 2. Reviewed the first quarter report on programs approved and programs denied approval; 3. Denied a request for credil for judging a mock trial competition at a law school; 4. Tabled further discussion of a decision not toapprove in·house seminars; 5. Considered an attorney's objec· tion 10 the requirement that approved courses be designed primarily for attorneys: 6. Declined 10 implement reciprocal

approval of courses appro,·ed by other states· CLE commissions: 7. Denied a requesl to accept for credit unaccredited courses reJ>'.lrled by attorneys nOt subject to the CLE requirement; 8. Tabled a request for reconsidera· lion of a program denied approval; 9. Affirmed a decision not to ap. prove an October 1984 COUTSe submit· ted for approval in March 1985: 10. Voted to certify to the Discipli· nary Commission three additional at torneys for failure to meet the 1984 CLE requirement: 11. Approved two courses on the condition the sponsor offer them pri· marily to attorneys and accountants: 12. Denied approval of a linarn:eand accounting course not designed prima· rily lor attorneys; 13. DeniedapprovaJofthreerourses designed ··10 hone the legislative skills·· of anyone desiring such training: 14 _ Granted half credit lor a work· shopon law oflice partnerships; 15. Approved two continuing legal education seminars olfered by an un· 0 accredited law school.

caloosa County. filling WilSOTl's unexpired term.

Wilson. a 1979 graduate of the Birmingham School of Law. also received a graduate degree in reo habilitation counseling.

Bef~ his appointment todis· tric! judge ;nJanuary 1983. he was in private practice in Birmingham and Tuscaloosa

GHar GHriefs Binningha m ba r rea c he s th e t oo· yea r m ark

T w o new judges a ppointed

n :\ .1 i' II I

=i=i II

In April of this year. Gov. George C. Walla~ appointed two new judges in Alabama: Thomas

, WI LSON

S_Wilson as circuit judge of Tus·

ca100sa County and Barbara W. Mountain as dist rict judge of Tus. Binningh a '" Bar April 15. the Birmingham Bar celebrated its 1000h anniversary with a Founders' Day Luncheon and open house.

Birmingham became the county seat of Iefferson County in 1873 and 12 y..ars later 19 attorneys met at the cou rthouse to adopt a constitution for the bar. as well as elect officers.

The Birmingham Bar has al· most 2,000 members and operates on a yearly budget of Over

SI80.ooo.

Speakers at the luncheon in· cluded Richard Arrington.Ir .. mayor 01 the city of Birmingham; C.C. Torbert, Jr., chief justice of the Alabama Supreme Court: Wai ter R. Byars. president of the Ala· bama State Bar. and J. MaSOTl Davis. president of the Birmingham

1m,.

Mountain is a nat;ve of Tusca· loosa and graduated from Tulane Uni\'ersity in 19n. She is a 19S4 graduale of the University of Ala· bama School of Law and worked in the Tuscaloosa County Public Defenders Office from September 19S4 until she joined her hus· band's practice in January 1985.

Byars honored at law review's annual banquet The Amtrican J(}urn~1 of Trial Ad...xary, Cumberland School of Law. honored Walter R. Byars at its annual banquet April 13. The dinner, held at the Relay House in Binningham. was attended by Alabama Supreme Court justices Jones and Adams and retire:! Cir· cuit judge JamC$ Haley of Bir· mingham. in addit ion to many others. Mr. Byars addressed the members of the law review with a look at professionalism in the legal world . He spoke out against aItOT' r\e)' advertising and cautioned young lawyers about losing sight via the media and commercialism of the American society of the idealism . goals and obje<:tives which brought them into the ficld.

T he A merican JOMr1Ul1 fJ/ Trial Adl'OCllry is a law review devoted to trial practice and waS established at Cumberland in 1977.

Grievance CommiUee and as cbairman of the Ch2Iracter and Fitness Commiuee.

I

I Another leader in the Byars

Washington. D. C. The DAR, founded in October 1890. was chartered in 1896 by an act of Congress. The society's 00. jecti>'cs are the same today as then: historM:. educational and patriotic.

Mrs . Byars has been acti>'e in DAR for man;' years. serving as chapter regent of Anne Phi llips Chapter and as registrar and first vice regent of the Alabama S0ciety. She is aloo an active member of Colonial Dames XVII Century.

Daughters of the American Colonists. Alabama Genealogical Sociel;' and numerous other patriotic and civic org'mi~tions.

The B;'ars ha>'c four children and reside in Montgomery.

family As Alabama State Bar President Walter Byars prepares to "turn O'"I'r the reins" to President-ele<:t j im North . another member of the Byars family is just geuing seuled in her new term of office.

Mickey Byars (Mrs. Walter R.) was installed April 19 as state regent of the Alabama Society.

Daughters of the American Revl>IUlion. T he ceremony was held at the 94th Congress of the Society in

©lEI'Jl I!:.AI(:E

In memory of J.O. Se nte ll,Jr. As a tribute to the latej,Q . Sen tell. United States Senator Howell Heflin entered a statement in memory of him in a recent issue of the Congr~iolllli Reami.

Sentell. who died January 19. served for many years as clerk of the Supreme COUrt of Alabama, in addition to his duties as editor of l"1u! AlI.rbll"", Lawyer (from

1967-82).

!% 5TAT~S

Gel F (()UlSE

Newest bar exa miner a pI)()i med Nidl<llas T . Braswell. m . was appointed recent ly to begin serving a four·year term as a member of the Alabama State Bar Board of Bar Examiners . His term officiall;' begins this month.

Braswell is a native of Demopolis and attended Marion Military Instit ut e_After serv ing in the United Stales Anny for two )"ears. he received undergraduate and law degrees from the University of AI· abama. Since 1966. he has been a member of t he Montgomery firm of Rushton . Sta kely.Joh nston & Garret t.

He has served on the bar's

"'I'LL BE AT A C.LE. COURSE FOR THE REST OF THE DAY."'

~,

A Judicial Perspective: Reimbursement of Appointed Counsel and Effective Assistance of Counsel b, Hon. William M. Bowen. Jr.

The appoin(oo criminal defense at· torney seTW;$ an invaluable function without which our criminal judicial system Ululd not operate. Hov.'ever. il oflen appears that appointed counsel is frustrated by Ihe system served and Ihe indigent defended. On the one hand. counsel is underpaid for his ser· vices which often im'Qlve defending Ihe most heinous crimescomrniued by

wciely's outcasts and renegades. On theOlher hand,counsel often ischarged with being ineffective and incompelent by the client. This article, in summary fashion. highlights rtetnt developments in both of lhose areas.

ParI I June 13, 1984. significant changes became effective concerning reimburse-

ment for appointed counsel. Counsel appointed to defend any indigent defendant for the appeal fr(lm a decision

in any criminal oonviction or j,wenile proceeding is entitled \0 reimburse-

ment for services rendered al lhe rate of $40 per hour "for time reasonably expended in the pros('CUtion of such appeal. and any subsequent petition for writ of certiorari." Alabama Code 1975. § 15-12·22(d} (l984). This $40 JJer hour includes both "in<:ourt" and "out~f-.court" time.

There is no longer a $500 ma ~imum limit on e>tJJen5es incurred in handling

an appeal from a conviction or juvenile proceedings. Section 15·12·22(d). as amended. provides that "counsel shall also be entitled to be reimbursed for any expenstS reasonably incurred in preparing and handling such appeal. to be approved in advance by the appel· late COUrt." This amended section does not limit expenses to a maximum of "one-half of the allowable attorney fees" as did its predecessor. Reason· ably incurred eXJJenses include such items as pOStage fees for the mailing of briefs. oopying and typing fees. and mi· leage (at the present rate of 5.22 a mile § 3&7·22).

The total fees awarded oounsel shall not exceed 51.000 plus expenses for any appeal and subsequent petition for writ of certiorari, § 15-12·22(d), with two exceptions: (I) If the state takes a pretrial appeal, defense counsel also may be reimbursed up to $1.000 plus expenses for handling just that pretrial appeal:(2) If thl" Alabama Supreme Court grants a petition for writ of cer· tiorari. which is automatic in death penally cases. "oounsel shall be en· titled to bill separately for all services rendered after the granting of the cer· tiorari petition, up toa separate limit of $1.000.00 [plus expensesi over and above any funds received for services rendered in the oourt of criminal appeals." § 15-12·22(d) Indigent fees in appeals from the de-

nial of petitions lor writs of habeas corpus and error coram nobis orother pOSt<onviction remedies are governed by § 15·12·23(d). That section does ~ot aUlhorire reimbursement for expenstS because il only provides that the "fee shan be based on the number of hours spent by counsel in working on such proceedings ." An attorney's total fee is limited to a maximum of S600 at the rate of $40 per hour for time expended in court and S20 per hour for out.of· court time. Section 15-12-23 does not provide any add iI ional a mOIl n \ of rei m· bursement in the event certiorari is granted by thesupremecourt. Allhough not specifically provided for, an appeal Irom a revocation of probation is &0'" emed by § 15-12·23.

Part II A criminal defendant on his first appeal as of right has a constitutional right to the effeeti"e assistance of counsel. Evill5 v. Lucey, _U.S._ lOS S.Ct. 830 (1985). The lest of effee'

IVilliam M. BoWfn, jr" the pre:siding judgeD{ Ihe Alabama Court oj Criminal Approl5, iso MtiveojBirmingham. He receivtd his /Jach.IQr', drgrujrom Sam· ford University and hislawdrgrnjrom CumlMrland School 0/ lAw. Be/ore assuming o/fict. in 1977, judge &> ...... n served as an assisla~t al/orney gen""l.

tive assistance presently applied is the standard of "reasonably effOOi"e representation ," Smith v. Wainu;right.

741 F.2d 1248. 1259 (11 th Cir. 1984). cer\.den .. _U.S. _lOS S.C\. 1853 and 1855(1985)_ Counsel need nOl pro. vide peTteet assis(ance and need not brief issues reasonably consideTed to be without merit. Smith. supra. OT "raise issues that he reasonably con· cludes will nOl be considered on the merits by the appeals court." I'rnnrois o. Wainwright, 74 1 F,2d 1275. 1285 (1lth Ci r. 19$4). Appellate counsel has nO constitutional duty to raise every nonfrivolous issue requested by thede· fendant ,jonfS v. Barnes. 463 U.S. 745.

103 S.C\. 33(18, n L.Ed2d 987 (1983) Although. generally. counsel's fail· ureon appeal toadvance errors which only have subsequently gained "judi· cial rec<Jgnition" does nOl constitute ineffective assistance. SuI/ivan v' lVainu.'righl, 695 F.U 1306. 1309 (11 th Cir,). cer\. den .. _ U.S , _ 104 S,Ct_ 290. 78 t ,Ed ,U 266 (1983). see also Reed v_ Ross. _ U.S. _ 104 S.Ct. 2901 (1 984). "there may be some cases in which trial counsel's failure to preserve error will nOl excuse appel· late counsel's failure to raise the error ," Francois. 741 F.2datl286. How· ever. an appellate court should not "second guess reasonable professional judgments" by appel1ate counsel as to what are the most promising issues for appellate review. jOm3 v. Barnes, 103 S,CI. at 331 4. Counsel should raise "all arguably meritorious issues which might lead to the convict's securing of relief unless counsel has a reasonable basis designed toeffectuate his diem's interests for refraining from making the contention." Anno!. 15 A.L.R.4th 582,602(1982) In almost every case. counsel's fail ure to file a brief on appeal constitutes ineffOOi"e assistance. Andert v. Cali· fornia. 386 U.S. 738.87 S,Ct. 1396. 18 L.Ed .2d 493 (l96n. "[T]he failure to file a brief in a nonfrivolous appeal falls below the standard of competency ex· pected and required of counsel in crim inal cases and therefore constitutes in· effective assistance" of counsel. Mylar v_ Alabama. 671 F.2d 1299, 1.).)2 (1 1th Cir. 1982),cert.den.. _U .S. _ 103 S.C\. 3570. 77l.Ed.2d 1411 (1983). As an active advocate, appel1ate counsel is

duty bound to "inform thecoun of er· rors committed at trial" and "provide legal citations and reasoning to suppori any claim for relief."' Mylar. 671 F.Zd at 1~1; PaSSmfJre v. Esl~lk. 594 F.2d 115 (51h Cir.), modified. 607 F.2d 662 (5th CiT. 1979), tert. denied. 446 U.S. 931 (1980) "If counsel finds hiscase to be whotty frivolous ... , he should so advise the court and request pennission to with· draw." Anders. 386 U.S. at 744. The request to withdraw should beaccom panied by a brief referring to anything that arguably might support the appeal. At a minimum. this brief should include a list of adverse rulings in the trial court. Counsel should furnish the indigent with a copy of the brief and request time for the indigent to be al lowed to raise any issue he chooses.

When appettatecounsel fails tolile a brief. it is the policy of the court of criminal appeals to send that attorney a letter informing him of the holding in Mylar. This court does nOt file a com· plaint with the Alabama State Bar

against appellate counsel. Ho,",,'e"er. the bar has requested that it receive a copy of e,'ery Mylar letter. This letter serves three purposes. It effectuates the responsibility of this rourt to ensure the defendant receives the COIlsti· tutionally required assistance of coun· sel. It a"aids the delay associated with an out.of·time appeal which must be granted where thedefendant has been denied the effective assistance of appel1ate counselor his right of appeal.

Ex /XIrte Longmire. 443 So.2d 1265 (Ala. 1982). Finally, the letter serves as a reminder to those attorneys who ha "e negl igen t Iy or inadvertently failed to file a brief.

Appeltatecounsel whorepresent their clients in the best traditions of the profession should claim the ful1 reimbursement to which they are authorized and entitled, Those few who fail in their duties as active ad voca tes s hou Id realize the almost certain risk they en· counter of being criticized before the bench and bar.

0

THIN Wh en you ha ve a personal injury case. THINK STRUCTURE. ThaI's right. Think structured settlement as an a lternative to a lump sum seltlemenl and maximize the cash avai lable lor the claimant al the lowe st possib le cost to the delendant. Calt now for ideas on what creative use of U.S. Treas ury securiti es and annuili es can do lor your seltlemenl needs .

Lama r Newton

Southern Structured Settlements, Inc, 1200 Bank lor Savings Bui lding Birmingham. Alabama 35203 205-328-2666

I

Law Day USA pridt! liberty. ju. tke ", r>d equality u nder "'''''.~ TheN wordI.1p(lbn by Ionno.r United SllIld Presidtrot Dw9>1 D. EisenhoweI' """he procLairnOO the first Uw Day, appear 10 be _ true today as t~ """' .mo.1

and

to , .......,. on what America enjoys buauMd our legaIoystem's gcW 01 iberty and juaric:ot lor r.-erycroe. ~ IoIIowing britllUf'I'It'Nofits relied how _ city and county 00r ~ lions in ~ celebrated this corn""1mIm110 ~ and preserving the

by District Auorney O;wid WhcIltOfll! and AMistMl District Au<>rroey GreeT

Law Day U.S.A. was established in 1958 by ~ U.S. Presidential Proclamation and r.alfirlTle<i Ihr~ Y'!",rs later by • joint resolution 01 congress. Celebrated annually on May I, Law Day's purpOM!;' to ~ a "lP«iaI day 01 cdebfation by the Anwrio;an people- in iIoPIlfeoIItoon 01 lhar ibtnie$ and to prooJicIoo an ...... M;.., for redediarion to I.... ideaII 01 equality and jo.>stice under the L"ws."

"Uberty and Justice for AI." filii Y'!at', thenw. ImOOllraged Law Day programs

American IegailyStem.

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·R~me mbe r ,,';Ih

"' ....

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Baldwin County Throughout the county, numerous _akers and guided lours look pIac. May I. with the majority 01 ..... Iour$ pWoned upeciIIIy lor eiemenra.y school

.-.

An esAy conIes! for junior high stu' dents was won by Robertsdale COOtest· ant$. 6lIIdwin Counw H'1'Iior ecO<lOfJlic and ~ment classes heard lectures

-.

In addition. _allTIIIIYO'" IIfOUnd the

own Law ~ proc.

Leonations; libraries emphMiud the legal ",""it in di5pIays and varioul churches

COUI'Ity SIgI>ecI their

lhe day in different ways,

Butler County

Serion from ... county Kh00i5 wel'8 tre/lted 10 a panel ~ and a quoSlion and answer period with panel mem· ben repruemill9 the lou. IeItet. 01 Ala· bama', jtIdioIIIsystenl.

Justice H,q, Madcb" (~tour1); Judge Tay!or{appe.... coo.t); Judge Ar1hu. E. Gamble, J •. , (circuit cOU,t. ):

s..m

Judgol Joseph N. Poole, Ill. (district courts): and Butler county and municipal officials participated in til<! day's """"ts.

Also included was a sOOn presentation by the local jUV<mil~ probation offICer on local judicial history.

Jac kson Coun ty Mock trials and informative speakers involved studomts throughout the county.

The mock trial ""entually was seen by almost 8IXt st ucients and was held in local COUrtrooms.

Cullman County The county bar association held a u.w D<>y IUr<:heon with allorney James J. Thompson as guest speaker. Otner ac· tMtil>s included a taped di$.cuWort by Ioc3l attorneys James J. Knight. St""en J. Peltit and Assistant District Attorney Charles Neizer regarding Law Day's foundation, rOCent dewloproo nts in Io>gis· lation. etc. Thisdiscussion W/IS aired on 6 local rlldlo station.

Escambia Cou nt y An "actual" criminal case. in which an advisory juryolhigh school students was se~ ted to near and decide the case, was sponsored by the county bar. (The de· fendant was chuged with posse$Sion 01 marijuana and found guilty of the of. fense.) The 12·member jury and two a1. temates represented the four county high schools.

Concluding u.w Week activit iI>s was a lake party and cookout for bar members and spouses.

Hunt sville-Madison County Monday and Tuesday. Apnl29 Bnd30 attorneys went to local high schoois and talked to students on topics ranging from the dewlopment 01 law in society to how students can prepare tnems..tve. for B career in taw.

Law Daywas celebrated withachurch S<mIice at the First Presbyterian Church, with the Honorable So/yboum Lynne, EdwinBreiandandJohn David Srodgras.; heading the nOOn presentation. Follow· ing these1Vice, more than 160 bar memo bers met for luoch and a monthly meeting.

Later that s.ame day, the courtroom 01 the Madison County courthouse was dedicated to the honor and memory of Judge Schuyler H. Richudson.

May 2. the bar, in conjunction with the local federal bar, held its annual Law Day banquet at til<! Redstone Arsenal Offi· cers' Club. wit h featured speaker RobOlrt L. Steed, Atlanta attorney and humorist.

AU law offices closed at noon Friday in the obse<vance of Law Day.

Law Week culminated in the bar·s an· nual banquet. held at the home of H. Thomas Armstrong. county bar presi· demo Public servicot announcements in local newspapers and on a k>cal r<>Clio station helped ensure the successof Law Week.

Laudotrdale County Numerous ",,,mt. for Law Week were schedulM throo.4>out thecOllnty. Among these were the proclamation by the Flor· ence City Commi..ion 01 Law Week for the week of April 28·May 4; a s!>"akers bureau from the local bar going to senior hish. junior hign and elementary $C hoots; and an essay for senior high .tudents using the Law Day theme.

A poster contest. continuing leyal ed· ucation seminar, mock trial. Law Day brunch (sponsored by the L~ Secre· taries Association for local bar members), senior citizens' program and courthouse tours for school groups also ruled Law Week in Lauderdale County.

The McKinley Young Lawyers pre· sented the WiUiam Rotch award to Bar, bara CoItum oIt he county probate judg<!. s <:>ffice for havinggooe"abowand beyond" the call of duty in .... isting lawyers, and the Colbert·Lauderdaie Bar Auxiliary ended Law Week with a picnic and live entertainment.

Marshall County The bar association. in conjur<:tion with the bar amilllary, held a picnic·barbecue fo r members of the bar and legal as.;istants. In another joim effort, bar members and Ie9al assistants pr<"Xlided books for the county law ~brary.

Members 01 the bar visited each high schooi in the county. diSCUSSing topics ,elating to law and the ~ community.

One final cooperative effon (between the bar and bar au ~i!iafy) pr<"Xlided law-reo lated books for obraries throughout the county.

Mobile An information booth at Bel Air Mall,

e~lUbit ing winning entries in the bar au~iI­

iary'5 postercontest, and senior citilens· seminars '-"<lfe just two of the events coordinated by the Mobile bar. In addition. several members 01 the bar spoke to students at a, ea high schools.

TIle week concluded with the tradi· tional naturaliution ceremony in the Honorable W. Br"""rd Hand's courtroom. Almost 60 persons, from 29 coun· tries, became America's r.ewest citizens.

Participating in the prosram """e Theodore High Schoors choir. the U.S .

Marine Corps Color Guard, the Mobile Exchange Club and the Daughters of the American Revolution. An judges 01 the 13th circuit and the southern district 01 Alabama '-"<lfe present; a certifICate 01 app!"ec:iation was presented to Judge Hand for his as.;istance.

Montgomery County A "Day On COUrt." including a tour faT 50 eighth-graders 01 various state and fede ral courts, was sj):)T\SOfed by the bar.

The United States Air Force donated two bU5e$ for transportation. as weU as served as tOUt guides and chapero.-.es.

The day included a naturali""tion cere· mony at the federal courthouse; tour of the Alabama Supreme Court and an ad· dr~ by o ne of the justices; bus tour 01 Ma ~weU AFB and lunch at the OfflC~' Dining Hall; tour 01 the Air Force J AG School. with an address by the comman· dant and vicIeo-taped mock trial coun· martial; and tour of the county court· house, with a talk by Judge Joe Phelps and a look at the county ilIil fadity.

The next day. the bar sponsored a Law Day reception and cocktail hour at the Capital City Club.

Morgan County With the assistance of the Young lawyers' Section, the county bar spon· sored a luncheon recognizing the efforts of PACT (Parent. Bnd Childr~ To> gether), a child abuse prevention associ· abon. PACT T"'Wed a $250 donation from the bar.

In addition. the YLS. in conjunction with the Decatur City Police Department, the Hartselle Police Department and the Morgan County Sheriffs Department, stalfed the finge rprinting 01 many area chikfren.

"J'rcsidcqt's "J'~c (1'",. fi~1

~ 168)

lime lhe rnembenhip rolls of the

Alabama Slal~ Bar are computerized.

We o....e a deb! of gralit~ (0 1M Ad· ministrative OffICe of the Courts for providing the bar wilh acass 10 ill computer. This not only will \ead IOlhe com pull'lizal ion of Ihe membtrship lisi. but all10 the admi"ion dala relating to law students and pn:I!lp!!<:li\"(' lawyers and disciplinary maners relating to memben of OIlT bar.

A priority area has been the study of lhe organization and go'o>emaoce of your bar. incll.lding the election of ill olT~ The c;o..'mu.nct Committee. chaiml byGST)' IhlCkabyof Humsvillo:and aided by Vice Chairmanjohn Proc· lor 01 SroIISboro. and each of its memo berf., h<is conducted exlens;"~ study into the existing structure of the bar. held a public hearing during the mid· year I11t'eting and Jl'f'OIlOSld tQ the bar commissioners a comprehens;,'e noor-.

ganiUllion

or the bar. The bar rom·

missionm have under consideration the commill~ report and minority views. lleel confident the bar will be reorgani~ed 10 prOVide increased repre$tntalion for the "'-rgtr judicial cir-

roils. bul retain rtpresemalion forfOCh 0( the 39 judicial circuits. T he (;o,."ft".

nance Comminee is due a special am· mend~tion for tackli", a diffocult13sk and respond ... in a responsible manner to the bar commiS$ioners.

The Task FotCJe on Judicial E,-a]ua· lion. Election and Selection ncom· mended. and the bar ammissioners appr"O'·('d. p!"Q1XlS('d legislation to provide for non· partisan judicial election lor all Slate COIlrlS and a judicial nomi· nating commission lor state appellate judge!t. BOIh 01 these bills were introduced without Sua:ftS in the 1985reg· olar session. but we ha'·eour 1001 in lhe door. Our able Icgisbni~ counsel have made pn;Igr"HS ...·ith mmlbers 0( the Ifgislat u~ in the pursuit 0( t hese ideals.

The l'rognms, Priorities and I..ong. ... ~ Planning Committee. chaired by Harold Speake 01 Moulton and c0chaired by Thad Long of Binningham. has undertak.-n eKI.-nsh·e studies and made excellent Iong·range recommen· dations lor theoperalion of. your bar as your service arm. This <':Qmmittt!e pro-

..

vided an in'·aluable service 10 an law· in this state. including a comprehensive Itudyoflhtdtc!.ronic mechan· ization of the Madquaners functions.

This commillee·s 1alX:r and fcnsight will acenoe \0 I he btnriil at uSall and of the IUlu~ot our profession.

The special Task Fora on Alcohol and Drug Abuse has fonne<! a non· profit corpontion lor the purpcR of establishing a prOfl:ram to help our fel· lo:JW lawyen. Theinitial bwrdrJOn:emed Lawyers Foundation. Inc .. iSOlmJXOSe(i of the Task ForaChairman.JudgeVal L. McGeeofOurk;ludgelohn Paller· son: incoming PresidentJim North and attorneys Mike Conaway and WalteT pm. J r. The progI"1lm of the Alabama State Bar at its annual mtt{ing in IIUnlsvil1t rd1«ts thelubstantia] n«d in this area and as "..ell the oontinued hard ...·ork 0( Ihis task fora.

Alter almost tWO years· study. the boitrdatbarcommissioners hasao:lop;ed pn:IpOSoed rules for an Alabama Slate Bar Client Security Fund . T hese rules have betn transmitted to the Supreme Court of Alabama wilh a req uest lor their ado]llion. The bo;ord has formally commended the Client Security Fund Committee lor its work. Binningham allornty Jim Ward and his committee have dont the bar and lhe public a great service with their dedicat~ efforts..

During the ]984-85 bar year. t ....o rot'W S«Iions "''ere created - bank· rupCe)' and family law. In addition. ~ litigation S«IIQn il to hold ilsDrWlniza· tional mtt{ing at the annual meeting.

Sections within the bar pennit the uni· ting of legal practilione~ who special· ize in certain areas of the law. all lor the improvement of the services offered to the public.

There Is bad ntW$ on the federal lront afft(\ ing Alabama citizens and both plaintiff and tIelense lawyers invoI,·ed in personal injury litigation. Af· ter apprOximately 30 )"t31"S. 1M Inter· nal Revtnue Str."ice arbitrarily changed its ~Iations to impose federal income tax on awards and 5ettiements of wrong{ u 1death c:a&e$. singling out Ala· bama·s punitive dam;tgl':!l wrongful death stalute in the regulalion. The bar commissioners elected to oppose this di&criminatOlj' move. Your presi· dent wrote requesting the aid and as· )'t1"$

sistance 01 our senators and congreSS. man. After I"t'Ceiving negative responses from the IRS, T om Carruthers and Robert Couch 01 Birmingham w~ reqUl'$t('d to draft an amendment to the Interna] Reo.-enueCode toexempt from taution puniti~da.mages TeCI!i.~ in wrongful death cases. Afler <kv<Iting substantial rHeiIIrdl andoonsideration. these lawyers COOperal~ wilh David Wooldrid~. who .... asemployed by the Alabama Triallawyer!l.a nd proposed corrt(live legis lation has been lor· warded looor congressmen lor action.

I hope we will be suceesslul in our legisla tive endeavors during this year of pI"(Ip(I$td tax reform.

There also is good news on the na· tional !ICtrOI'. A major probIemOlOfronl· iog the orpni.ml bM in this country WISthe attempt by the Federa] Trade CIlmmission to include ...·ithin its TelIU· thorization legislation the pmtmp:ion oJ. lraditional s tale regulation of the legal pn:of~. This allempC recenlly has been defeated in congress. mo:aning the COIlrtS will (:(IrItinue to determint what. if any. jurisdiction the FTC may ha'·eover the profession under Ihe 1914 FTC Act, as limited by tm, state action doctrine of Pa,ktr v. Bro",~. Tm, sue· ct$!jful fight against this ad,'ef"Se legis· Lation "·as initialed and led by the Soul hem Confertn« oJ. Bar Pres.idents. .... hich includes in itl membership the president and president-el«t oJ. the Alabama State Bar ....·"h the joint el· fons oIthe National Confen:nce 0( Bar PresidentS and American Bar Associa· tion.

These acoomplishments point to the continued succtU oJ. the Alabama State Bar in its N'prese!1tation of Alabama lawyers. Yet. I, more than anyone. real· ire lhe magnitude of the job ~It lor futureadminiSlrations. I leave "ith the re:alization. though. that incoming Pres· ident lim North will provide ~ble lead· ership. and he will rt(ti,·e the full mopen.lion and assistance of your bar commlSSionersand stalebar staff. \\'hilt all may not be ...-eI] ...·;thin the prdeslion. radt 0( you c:an expecl ~n OUI· standing administration in 19S5-86. ]n dosing the 1984-85 )·ear. ] thank each oJ. you for theopportunity to st-n·e and foryour work and support in help0 ing me carry out your program .

- Walter R. Byars

1*1985

<>tOung

GLawy:ers' ~eetion

b, Robert T . MeadQws. lit YLS I're!\ident

A

mnl~ from my S«fetary

thaI llot arude for the Young UW>'ff'f Section d 1m, July issue of The AIob.:r"", 1AItty<', is lale again makes me rtali~ time has nown dUrlnglhe paS! year. It has~na busy

-allimes loobusy - ytar. but a "ery satisfying one from the standpoint of having strved lhe bilr. Unfortunately. il seems juSt as one gelS a goo:.! gTlISp (>!lItH! system and its ptOpie. the lime

hascome \0 rtlinquish lhega\'elloan· other individual. Suffice i\\o say Ilhor· oughLy haveenjoytd myOppOrtunity 10 sen~ the yount: L1w)<ffSd this state. and I hopelhal 11)' my ha"ing~ 501

haveconlribuled in some small way \0

the betterment of our prOfession.

I thank all 0( the fine auorneys with whom I ha"e served on the YLS Execu· tive Commit tee. particularly thooe 0/. ficers who have been 50 helpful to me during Ihis year. Without their stead·

fast aid and support, the Young Law. yeu' Section woold not ha"e been nearly as $\ICCt$$ful this year in ils

activilie. Thanks alsogo 10 particular members of lhe eX«1.llive commiuee who ha.~ eont .bove and ~ the call of duty in lheir dfons on behalf of lhe Young l..awyen' Section. Jarnn Ander$on of Montgomery. Ron DoI.;s of Tu scaloosa. ~rnie Branl\3n of Montgomery,Jamell MilltrofBirming· ham, Randy Reaves 01 Mont~ry, Charlts Mixon and Caine O'Rear of Mobile, Dick Richardson of Hunts"iiie, Lynn McCain of Gadsdtn, Pat Harri s and Myra Sabel04 Montgomery,Claire

Black 01 TU KlIIoosa and others too nl,lmerous to mtnlion rontinl,lally have Iwn willing to ,we of tJwomselves and their lime, I would be remiss if I did nQl also txtend my gratitude to Walter ByaTS. president of t he state bar. Walter is a "ery enthusiastic individual when it camelllO promoting his pro/essiQn. and I believe some of his enthusiasm has s pilled over tot he young Ia W}~r1i i n ou r effons to beuer our profession. Walter part icularly has Iwn helpful in limes 01 crisis when d«iSionl had to be made thai wert of Ioni·ra~ rifoct on It..: young 1a,,'ytf'S. and the state bar as. whoole, Of OOUrte, 1\ goes without saying Reginald Hamner and his staff al the Alabama State Bar Ileadquarter1i in Montgomery ha"e done their usual fine job. Withoul Reggie, Mary Lyn Pike, Margaret Dubberley. Diane Wei· don and t he other member1iof the staff. the YOl,lng LawYt!rs' Section would have fallen sltort on several occasions during the year.

By the lime Ih,s article appear.s in lhe hands of the IaWytf'S Ihroughout the state, my lerm will ha'-e ended and Bernie Brannan of Monlgomery ...ill have laken over. BeI,,·etI\ the time of writil18 this .niele and it $ appea.rana in Till AlllbIr_ fA",,", st\'eral pr0jects mnain to be compleled in this year'ucth"tiesof the Young LawYeni' Section. May 11 and 18. the anmlll Sandestin semi nar was held in Sandestin. ApPl'Qximately 200 young and "old" lawyers attended this particular

seminar with 1800f ~hose pre--~ster· ing. T~ sem,nar proarams, u.lgether with lhegal! and tennis toumamems, were well rtce;"ed by all in attendanoe.

One would do well 10 make plans to attend the May 1986 annual Sand~t;n seminar.

In Montgomeryon Wednesday. May 22 the $t('OI\d bar admissions cererTlQIly of the ~'ear was held. Approxi· mately 80 new admiltees to the bar were honored, AI t~ bar luncheon held that day. tho> lion. Fred Gray of ttw, law firm of Gray. Langford. SaW. DoI"is & McGowan of Tuskegee-spoke 10 ttw,new admiltl!n. Mr. Gray. in ad· ditlOO to hav,ng handled a number of very signi!iant cases throughout his years al a PT"Clicing ta ...'yer. ~ntly has Iwn named Pr?Sident of the 1'11· tion~1 Har A!5Ociation, It is s ignificant Ihat Mr. Gray, who graduated from Case W(!$tern Reserve Law School, w;ll be as~uming the presidency of the NBA at appro~imately the same time another graduat e 01 Case We-stern Re-seT'\'t Law School i$ assl,lming the presidency 01 the American Bar ~ ciation.

FOf lhe annual bar ron"ention held in Hl,lnl$vil1t in July, Dick Richardson and his lIunuvilie young lawyers arra~ a party for lhe young lawyers of ttw, Sllte who will auend the ron· venlion. Dick and his c:omrades from the Hunt s,'me Young Lawyffll' Sec· tion are to becommcnded. I hop!' this type of party will continue as an an· (O>Nti~"td Ow pagt

1811

l!E;~SlAi~V!E

WIAp .. gp b, Ro be rt L McCurley. J r.

T

he Alabama Ugislature unanimously approved

and lhe go"ernor signed into law the Eminent D0main Code. This act was one of only a relatively few major bills approved during Ihe 19S5 regular session.

Alsoa pproved wasa bill authorizing prO-lant05ettlements

The following chart is an indication of 1985 legislative enactments to prtor ;·ears.

Perce ntage of Legis lati,"e En act me nts to B ills Inlroduced

(see "Pro Tanto Settlements" by Judge Marvin Cherntr, page 197).

This was the first )'ear Ihe legislature operated under

Yea.."

19 85

"budget isolation," a constitutional amendment approved

by Ihe voters requiring no legislation could be passed until the two budgets were passed and submiued tnthego,·enlOT. The budget isolation amendment did provide an excel> I;On wllich permiued OIhe.- legislation to be considered if a resolution was approved first by a majority of theTe$~tive

,

IlOuse. This provision apparently caused lhe house no problem. The IlOuse bills. with their companion resolution, were considered as usual. The senate required every budgel iSO" lation resolution to be referred to the Senate Rul~ Committtoe. Consequently e'·ery bill once approved by one of the 20 senate committee!!. still required the approval of a resolution from the rules commill~ before it could be considered b;· the senate.

Only 89senale bills (1 2.34 percent) were enacted into law .

Of these 40 were local bills applying toonl;· one county. T he houseof representatives enacted onl;· 251 of which 183 were local bills.

Only lOS statewide bills were enacted during the regular session. Most were of limited scope. applying to only one state agency 01" wert' pay raisesorexpense bills for state and cou nty officials

"'"

217

307

175

688

89.86

84.03

78.86

60

112

169

239

340

87.5

84.61

43.93

49.7

(.J (b,

and 3 spteial !;t$$ions

'"

regular

«,

~ion and 4 special Ci/y '" Bi,,,,ing/uim (which

1 application to be uroconstitu· I)

. (978)

ALABAMA LAWYERS RESEARCH SERVICE Tho Univ .... ity 0/ Al .b.m.> School 0/ l>w Clink.l Program

lECAl MtMCIRA.l'o"OA CCINFlD£I','TlAUY PRfl'ARED AT REASONABlE RATtS BY SEl.ECTlD LAW S1lJl)(NTS lJI',1XR ATTORI'/E'( SUPERVISION.

RI)/)er/ L McC"rlry. Jr.. dif"IXlor 0/ tlrl Alabama wu, I "stilu/t. rf. u;,'fd his H.S. oud LLI1 d"1fl'lY:S from lire U '';I'c1'5i/y 0/ Altzbamo. {II thi.< rq{Uiarroiumll.

Mr. McCur·

ley ,.·i{{ ketp liS "pda/cd ollirgisla· TUK. I..,... AL.!MOt

I;OIIIJ/ ill/ern/alld ;mpor/allce 11./ Alaba ma aI/Qr"l'yS.

, _/y 1985

Emin e n t D o main The Eminent Domain Act (Act No. 85-548). sponsored by Senator Frank Ellis and Representati,·e Jim Campbell. pas~ the legislature and will be effective January I. 1986.

The revision was the work of a committee chaired by the late Maurice Bishop of Birmingham. This bill provides a procedure for handling eminenl domain cases from the commencement of the action through judgment and post judgment. It dCJe$ not change the requirements for the right to condemn. The present Title 18. although slightly modi· lied. is included in this new code.

Pro Tanto Settlements ~tion 12·21·109. C<Jd~ofAillbama 1975. was amended to include '·all judgments enlered pursuanl to pro tanto set· tlements.'· This amendment (act no. 85·517) was effective ~l ay 8. 1985. The bi\1 was sponsored by Representatives Mike Box and Beth Marietta and Senator Jim Smith.

Child Abu s e The legislature also passed eight ··child abuse·· protection bills. Among other requirements these bills require crimi· nal background investigations for fostcr parents and others who work with children. The testimony of children in child abuse cases may be videotaped and the taped testimony u~ at trial.

Taxlltion The legislature pas~ a corporate income tax bill which conforms Alabama·s corporate income tax law provisions with the federal law .It further makes available Subchapter S treatment lor foreign and domestic corporations by dele! · ing the ten million dollar gTOIlS sales limit. It further ...... quires a carrY-Qver basis for gifts and lransfers in trust taking place alter March 14. 1985. Alabama income tax procedure rules also wcreconlormed to their federal coun· terparts by adopting the federal ··timely mailing is limely filing"· rule. The bill also phases Out the $600.000 per yea r corporate net ~r.uing loss rule and now allows a IS-rear net ~rating loss carrr-Qver. This corporate income tax bill was signed into law May 8 as Act No. 85·515.

The Federal Tax Reform Acl of 1984 (P.L. 98-369) became effecti'·danuary 1 and relates to tax trea(ments of alimony. separate maintenance, properlj" seulements and child support. Alabama has not conformed its law. but still treats such payments under the federal law in effect Janua ry 1.

1982. The bill conforming Alabama's law with the federal law was caught in the last day ··log jam.'· but will be re-introduced in an expected special session.

O th e r Legis lation Thek-gal drinking age was raised t021 years of age. This bill did '·grandfather in ·· an those 19 years of age by October 1. 1985. and certain others in the military. This law will become effective October 1. 1986.

The primary election date was mo.-cd from September to June. The 1986elections will hold an initial primaryJune3.

1986. with a run-01f June 24. 1986.

0

"Executive GJ)irector's ~port

(F",,,,pagol69)

programs being offered in Alabama; (3) Carefully evaluate the provisions of any policy for prior acts coverage. Sometimes you find a more favorable basic rate; however. in purchasing your '"Iail"· coverage. you very well may pay more for this coverage than theo,·erall increase in the policy costs under which you currently are insured; (4) WatCh for new restrictions in prior policy provisions. Many insurers are seeking to reduce exposure through this means and remain in the market at.! h~. a compe(i( ive rate.

The American Bar Association Standing Commiufe on Lawyers· Professional Liability and Our own Insurance Programs Committee of the Alabama State &lr are frus· trated by the lack of consistency in this market. ft is hard to realite that 15 j·ears ago this problem was not worthy of a commiuee·s time in either association. much less the neces· sity for full·time staffing of a position within the American Har Association.

One thing is readily apparent. Lawyers are getting sued lor malpractice; judgemen(s and/or selliements are being obtained. Be assured we in Alabama are not paying for the mistakes in other juri$dic(ions; we are paying forour own mistakes as this problem is a pervasive one throughout our profession within lhese United States. [t will get better if history can be relied upon. [ predict an easing in late 1986. but I fully anticipate to find us in the same predicament we are in todar no later than 1993. No one has explained satisfactorily to me Ihecyclical effect that occurs with seeming regularitrevery seven years. Come to think of il. there very well may be a ··!;e>·en·year iICh.'" 0 - Reginald T. lIamner

TO:

_

moM:

IIoOer<O.tIdaIf.,clerJ; 9upromo Co.1I"t of /o.loI:Io.mI.

...-.:I &1" of

/o.loI:Io.mI.

~cent

GOecisions by

J ohn M. Milling, J r. lind I)II " id H. H)·r n e. J r.

,esillnony.

TilE COURT : It'. his opinion. Ask him lbal apln.~

Recenl Decisions of Ihe Alabama Court of Crim ina l Appeals Arson eX l:lC rt cannot te s tify as 10 Ihe ul timate fac t

HIl//mIl" p. Slate. 3rd Div. 915 (April 23, (985) - The Alabama Coon 01 Criminal Appeals re-.·ersed the defend · an\"$ al"$Ol1 conviction based upon the error which occutnd during the exam· ination of John Robinson, assistant fire maJ"$h.all fOf the State of Alabama.

Mr. Robinson. aftH" giving his quali· fiat ions. Itated he made an investiga· tion of the fi~ todetennine if theause d the fire "'"1IS from natural caU$e!l Of had ~ ~ int~tionally. During the aMIne of the dir«t examination. the prOMCUtOf as ked the following ques-

tiona: Q. Oo.,y. Now. 11m aoOne \0 asl< )"001 if you hIove I~ opinioo1 ao to It..CIIU$eof t~ fi~.

1 mun

".1. we.e

~xlly

Wbal male

u5ed . if ony. 10 start Ihe

fi~.

A. Based on It.. e"minalion of acts 01

God and occidI'nlal CIIU_. 1 would

hIove 10 feel 1""1 Ihi. lire ..... inlen· tionallyaused.

Mil. YATES: Yc..r HotIor.1 objea.

TilE COURT: Oot-rruled.

MR. YATES: You. Honor.tbaluU _ lhal', an ult"""y, 13CI 01 iss"" ~. ThIll .. not~pen lesl;mony.

T il E COURT: Oot-rrulell....

Q. So. il is rour drtmninalion lbal 1I

wn a <idib..,lle ar i~I"'lionaJ Ii"":> MR. YATES: Objtocl to Ihll. It as.... far In ullimale fXI in i.."". and il is not subjKl 10 In experl wilneu',

'"

Judat T )'5OIl ..... ritilli for a unanim· ousaMln d criminll appeals, affinned the doctrine ~unciau.·d in HIIghes p. su,k. 41 2 So.2d 296 (Ala.Crim.App. 1982}. ln H.pn. lhe COlIn d appeals held: "11 i. cltar lbal. O\"CI" proper 00;..:. lion.lhe admiuion oIleslimony Ihll a fi ....... 'in len1ional" or'oI i~n' diary origin" i. ""enible error. See CM.i~ •. SWlt. 247 Ala. $5. 22 So.Zd 548 (ls.5~ MomliJoui •. SItlIt. A.....

C•.App. 373 So.U 12.'A1 ( t979~ E.... an ~pt11 may not I"'f an opinioo1on the iu"" till«'~ C&U$e 01. lire il lhe ultin>a~f f3CI in an 1I"10Il cue."

Judae Tyson c ritically lIO(ed: tlNr from

"11

is

t~

record ... that Mr. Robinson was improperly Jl':'rmitted 10 gi,~ his opinion u to the ultimale fact

at ;$$\Ie in thi s anon

ca~.

versible error occurred."

Thu s re-

Recent Decisio ns of t he Su pre me Court of Ala bama-Ci\'il Ad min is tratio n o f es ta tes ... s«tion 26- 12· 7 im'al idatcd for l)urpo8Cs of inhe ritance AbraM'

p.

Whuler. 19 ABR 1451

(March 29, (985) - The issue presented WU whether the two-year slat· ute oIlimilalions on palernity pn::.:ero. ings ~t OUI in §26-12·7. Ala. Code 1975. bars t he child from il/heri/ing from Ihe decment'l Hlate by intestale succes· sion. The5upremeaMIn answered the question in the ntgati,·e. Thedeoedent died intestate INving an ilLegitimate child. The trial court found since the child was m~timale, she was 110( en· titled to inhent 1.$ the judicial deter· mi~lion d paternity ...·as 110( made within tl" Oytarsd thechild's binh as nquired bystaluteand Hl)tragep. Gib·

iOlI. 372 So.2d 829(Ala. 1979}.

The 5upremecourtllattd the rule in E.'fflJgt. is modifitd \le(ause the Unittd Statl'S Supreme Court rectntly has struck down T efllleS$H'ltwo-~r stat· ute of limitations as being in violation d. the tqual protection clause. The ra· tionale is that tile limitation fai~ 10 afford illegitimate children a n adequate opponunity 10 obtain child support while failing 10 be related substn· tially 10 the state intertSl 01 ~enting the litigation d. st ale 0<" fraudulent claims. The supreme court also nottd Ihe Alab;lfna Court 01 Ciyil Appeals in

StIJ/e P.

MIJ,li~.

437 So.2d 1311 (1983).

recnltly inyalidated §26-12·7. SII,TII. for- purposes of suptXlrt. The supreme court reasoned that since a judgment 01 paternity sen·es the same state pur· post. regardless of .... hether ;t pertains to SIIP/JOr / or i Ninliz/' IN<<t:S.Iio". it fol· lo.... s that tile s tatute of limitations like\'li$e discnminatts for- purposes of I'Stabiishing the right to inherit from a putative fat hers intestate I'State .

authorit y by which a probate court can appoint a ro-administrator. Section 432·24 upreuly provides for supplemen· "Iletters/tl/a mt "lizry ··if the disabil· ity of a penon under ~ or of a mar· ried woman ""mN lIS eual/od" ~ k~1I is remcwed."· T he s upreme coun rea· soned that by mentioning only tho!;e IIfu_11n' i" a "'ill. ·· the ltgisbture upressed its intent this stCtion shoou ld apply only to testate estates.

Since supplementallettenu adminis· tration are not mentioned in §43-2·24 nor in any other statute, tile Sll~ court presumed the legisbuurl: ne-·er intended to allow for the issuance 01 luch letters. In a footnote. hO\>.·e~er. tile s upreme court stated it coukt not undtl'lltand why the 1975 Cotk rom· mittftfailed to include administrators in §4J.2·22.

··""mtd

Attorney and clien t ... non-lice nsed a tto rney cannot enforce lie n for fees in

Ad minis tration of estates ... sect ion 43· 2 -24 1I1llllic II on ly 10 testa te es lo tes Ex /JIIrlt: 1IQ/I~dIJY (f n Rt; The E$Iiz/. of CiJldH }trome HoIWd~y. 1~0Sld).

19 ABR 1255 (March 22. 19S5) - In a case of first impression in Alabilma. the SUpremeCOUft was as ked todeeide whett.er- §4J.2·24. Alii. Codt 1975, permits the probate court to issue Itt· tHS 01 administration toa widow, who at the tlmeof t.er- husba nd·s dtath W35 disqualified un<kr" §43-2·22. Ilk Cod, 1975. for- minority. T~ lIo1laday ,,·as only 16 at the time 01 her hus· biln,:]"s death and thus disqualified beCilUse 01 minority. Hrr father·i n·law w35 appointed sole administratO<".

Teresa subsequent ly remarried Ind when her disability 01 non· . was TefflO'o·ed. she filed a petition to have her father·in·law remO'o·ed or in the al· ternative to be appointed ro-adminis· trator. Relying on 143·2·24 the trial court issued s upplemental letten of admini~tration naming the widow as ro-adminislrator. Both parties filed petitions for writ of mand~m UI. The supreme court s tated there is no authority in Alabama by which a probate Ulurt can issue supplemental \et. ters of adminis/ml;o". a nd there is no

Ab\bama Saw}"erv. McRae. 19ABR 1680(April 12. (985) - Sawyer. an Alabama relli· dent. was injured in Alabama. McRae. a Mississippi attorney licensed to prac· tice law in Mississippi but not licensed in Alabama. associated an Alabilma at· torney and filed suit in Alabama. SubKquently, Sawyer discharged. McRae. and McRae filed a motion to fix n tor-· liens. T he trial court granted a lien of $10.000. and this ruling " ·as certified under Rule541b). ARC P. The iuue was woohrr an auOf"l"Ie)' ,,·ho is not licensed topractice law in Alabama is estopped from pursuing a claim for ~·eryol compensation on acontract with a clif,nt. In a ca~ of first impression in Alabilma. the supreme court ruled that an a\lamey who IS unli · ~sed in Alabama cannot enfllrO! a (XIIItract enten'd into to provide legal services in Alabilma. The su~me coun n(lled ;t consistently has held that members of other unlicensed oc· cupations cannot enforce their con· tractS in regard to rendered ~rvioes if they have not complied with Alabama licensi ng requirements. The supreme court could 5« no reason to tf"<!at the legal profession differffitly from other licensed occupat ions in Alabama.

ner·'

Civil procedure .. . n lie9(h),ARCP, req uires the Illaint iff to proceed in a reasonably dili ge nt nm nne r todetennine the true ide nti ty of the defe ndant Ki,uJrli~. C.A. Ktl/y a"d Com/JO"J, 1M.. 19 ABR 1385 {March 29. 1985)Kinard . a tenant. fell In a parking lot and sued the lessor. Kelly and Com· JIiI ny. Inc., August 8, 19l1O. Klnan!"s attorney il sled fictitious parties described as .,.,..~ 01 the prt'mises. AI· though Kinard·s allomey maintained he C(lf11mmced "informal diSOl'"o-ery·' soon aftrr the complaint was filed. the surpremecourtcould find rIOf'lidence of any auempt$ to di!lO;O\·er t he true identities 01 the fictitious JIIIrties until January 1963 when Ki nard propoundtd intefTllKlltories to Kelly and Company.

In rnJlOl\~ to the interrogatories, the identities of the ownen wert revealed. and Kinard ·s allGrnty immediately amended her complaint to s ubstitute the named individuals. Thede/endants filtd motions for summary judgment based upon the statute of li mitatIons. and their motions wcre gran ttd.

The supreme court stated a plaintiff is rtquired to proc«d in a reasonably diligent manner in determini ng the true identity of the defendant. T he court noted that alt hough the rule does not eJlpn'SSl\" requireduedili~nce. the same policy considerations req ui ri ng a plaintiff to a~nd hisC(lf11p1aint within a reasonable timf: after ~aTfling uthe defendan!"s true identity also require the piaintiffto pt .... eed in a reuonably diligent manner in clttermining the true identity of the defendant. T he recakitrant plaint iff cannot use Rule 9(h). ARCP. to gain what otherv.~~ might amount to an open~ stat· ute of limitations.

C;" il proced ure .. . rule 15, ARC» , mod ifies Parker I', Fits mltl SoliS P,iu~.

$oM/itt,." RlJilM'IIj CiJ"'f'IJ"Y.

19 ABR 1303 (March 22. 1985) - On application for f"<!hearing, the supreme court withdrew ilS opinion of Septem· ber 7, 1984. and took this opportunity to address two issues not add ressed directl y by the court since adoption of the Alabama Rules of Civ il Procedure.

'"

First, the COUrt considertd whelheT a ptnOnal injury claim filed by a ptf10Il prior 10 his death m~y be amend«! by hIS ptr$OIIal ~ntam~ to add a daim for wrongful ~ath. T~ supreme court answered this question in tke affirmative, if the personal injury ac' tion survives. In other WO((I$. if the plaintiff had a breach of warranty ac· tion (ex contractu) seeking ptf1OIl~1 in· juries and ditd from those injuries.lhe personal represo-ntativf mal' amend pursuant to Rule 15(d) and add a wrongful deolh action. The s upreme COUrt reoJ&Iliu,j Ihis result runscon· tMlry to Parker ~. Fil:s II>ttI Soou. 243 Ala . 348. 10 So2d 13 (l942). and 5tated /'a. kt. construed T itle vn, §2J9. Alii.

Cod~ 19-10. which has been SU ]ICrseded

by Rule IS. Rule IS allows a party to amend, alleging "'transactions Of ocCUITfIICH or ~em'" whi<,;h ha,~ h.ap~ sulHquenl to lhe dale d lhe original complaint.

The supreme court also considered w~ther lhe " 'ife'scLaim for \oslt 01 con· sortium survi"ed the death 01 heT hus· band. when he died as a result of the injurie$ s ustained. The court also answered Ihis question in lhe affirma· li"e slaling theeause 01 action belong!l 10 her, and lhe loss is hers. not his. T~ luprtmecoun reasoned that sinoelhe consortIum action would ha'~ "ested in the spouse pnor to the de-1Uh, lhe action would not ha,~ belonged to the d~t if ~ had survived and is not affected by the s urvivorsh ip statute.

less Whilden txf(Uled a blanket in· demnity agreement holding J.P. h.arm· less from lIabihty to the LandowneT. Whilden signed theaareement bta.use he needed the money to PlIY off lhe bank loan and because I.P. told him only a few unmarked trees had bten cut. The trial court entered judgment against 1.1'. for the valU(: of the un· marked Irees. but invalidated t~ in· demnity agreement finding il executed under dure5S. The s upremecoun affirmed noting the doctrine 01 economic duress IIOW has ",ined aa:eptanoein manysta\e!i, irx:luding Alabama. T~ are three essential elements to a prima facie case: (I) wrongful acts or lhreats; (2) financial distress caused by wrongful acts or threat': (3) the abserx:e of a ny

reasonable alternative 10 the terms presented by the wTOl1j/lloer. The Re(Sft:o>ttl) of UJlftrutu.. §175 ( 1979). alsoddlnes ~MlOOIl1i<,;distres5"

JItJI~_"1

as follows: "W IIEN DURESS BY THREAT MAKES A CONTRACT VO IDABLE (I) If a party. manifestation of n · .....1 is Ind".,.".t by.n Im(lfOpel"lhrul

by llle OIlier pany thai leaves llle vichm no reosonabltalt...-naun.t he OO.lIracI is voocb.bIt by the vIctim."

T~ supreme court reasoned the lrial roun could have found Whilden had noc~ butlOarnpt thelermsol the indemnity agreement. especially when considered inlight of the superior bargai ning power of I.P.

Ever~boo~ 'Yants .

To Be CreatlVe.

-HunlOvlU"

Tort s ••• doctri n e of economic duress ex p lained

=-:

fNt~.",,'io"'" Pfl{N' UJ1//{ltl1I1 II. lV/I'ildtll. 19 ABR 1S31 (April S, 1985) - International Paper ComPllny (I.P.) conlracted wit h a landowner to pur· chase certain marked tl"ffll. J.P. also COntracted with Whilden to cut those marked trees. Whilden entered into another conlract with J.P. to purcha$e some logs and secured a loan to cover the purcha$e price. A dispute between J.P. and the LandowneT arose bta.u$e numerous unmarktd tr«:S ,,"tf"t CIII. At the conclusion 01 the [imlltr CIII· ting, I.P. owed Whilden SUxxl. Steil u $e r:i t he dis ptH e over I he u n marked tl"ffll. I.P. refused to pay Whilden un ·

'"

,." 1985

Rece nt D ecision s of Ih e S upre m e Cou rt of Alaba m a-Crimina l Im peachme nt by prior inconsistent s ta te me nl , .. a primer E.r 1'Il,~; Sioa",,, [)Willie IValu It. SID~. ]9 ABR 1~8 (April 5. ]985)During the Cr()!.S-txamination of defendant Watts. the state began tG question her abelut a statement she al· legedly made on the night Gf the shOG!· ing. Befon: the $ubsta!'lCe of the state~nt WaS brought 001. Wattsobj«ted on theground thaI the s\ate~nt was involuntary and the Ilate ~bandoned the lineof questioning. In ~buttal. the State put a PGlioe offlOO' on the- stand and alttmpled to introduc:e the stalemffit made by Walts for tile purporeGf impeach~nt. Walts' trial testimony was to the- effect the vietim and her husband had provGked her. The state wanted tGslIow lhat in her statement given to the detectives on the night of the shooting. s he did not mention that she had been provoked.

The 5Upre~court revtf!led thecourt ol criminal appeals and held that a witness first must beconfronted with an ineonsisttf1t Stalemffit and deny making it befon: that witness can be impeached by another witness as to the sublitana: olthal statement.

T he court noted thai thelawisde3r that a statement. not admissible in the proMCut ion'$cast-in<h~r to pro...e the crime charitd bea.use it was obtained in violationof Mimnda o. An,",lUI. 384 U.S. 436 (I966). can nevertheless be used to impeach the accused's trialtes· timony. See Oy(8')" v. Hatl$. 42(1 U.S. 714 (1975).lIowever. such statemffits can be used only if the state affinna· tively s hows the statement to ha\"e been voluntary.

The reason for the prior confronta· tion rule is stated as fol]o,.·5:

' 'The t.tio: rtflOt'I for tllo requ;"'" ment tMt 1110 pr«Iicale queslion lpocity timo. ~. conl""t of 1110 I UIJI)OIaI Slat ...... nl. and 1110 ~ to wl\om ma&-. ilto~bIe tllo I_I· tiel 011110 mind 011110 wilneu 10 be pu11n motion and hillMmoryaided by 1110 l,..in 01 idno which $ucb <:ie· CUmSlal\CH woold be liMly to '''ifnt wilh ~Ierence 10 the 'U~I

mailer under Inquiry.nd ,hereby be ...s.d in recalli,. 10 rMmOr")' whol her

lit m..:Ie lhe Itat .....n!: and. i/ 110 .--lls mak, na: 10....., h,. ""plana, tl(lft 011110 apparmlconflOCl bct ...un hll teJlImotIy and luch pnor Slalf> ment."

'I.

Post com 'ielion hearing cannot be used to d elermi ne \'olun tari ncss aspect of a confe ssio n Situ/a v. Siale 0/ Alabol rna. 19 ABR 648 (March 1985) - Shula was con· victed of first d~ rape. During the trial. a confession was introdu«<! into evidence in which Shula admitted his guilt . The issued«ided by thecourt Gf criminal appeals whetherthe state mtt its burden 01 proving Shula made a voluntary. intelligent and knowing waivrr 01 hi$ constilUtional rights. such proal being a ~uisite to the admissibility 01 the- conffSSion.

The court of. criminal appeals fouoo the sute had IlOI met its burden of proof and the confession was. therefore. nOl properly admissible into evi dence. The court's solution was to leave theconviction intact and remand the case for a post conviction eviden· tiary hearing \0 determine whetheT Shu la, in filoCl. made a ...alid ....ai~er 01 his right s..

The supreme court granted ~io­ rari to review the- court 01 appeals' dis· position 01 the eJlse. The defendant argued that the prope.- remedy is a new trial. nOl an after·the-fact hearing on the admissibility of evidence already entertained by the-jury convicting him.

The IUprt~ COUrt agreed.

A confession Is nOl properly admiss· ible into evidence in a trial without a showing by the state that the defend· ant knowingly. int~nigenlly and vol· untarily waived his or her constitu· tional righlS before making the Statement. MiT/lnda ~. An,",,,,,. 384 U.S. 436 (1966). COI"If~$ are presumed to be involuntary. placing the burden 01"1 lhe s tate 10 prove a valid wai,·n.

No.tlt D"oIiJUl •. &110". 441 U.S. 369 (19'1'9); J)""co .. P. SJ,,~. 176 So.2d 840 (Ala. 196.5). [n lacti(," p. IX,,"o. 378 U.S. 368 (1964). the United Statn Supreme Caurt declllred unconstitutional Ihe "New York rule" governing this de· termination of \"oluntariness. The suo

"'as

premeCOUrt heklthat it wa s a "io!ation oI lhe due process clause 01 the ]4th Amendment 10 allow the convicting jury to determine both the voluntari· n.fSS and thecndibilityof aconfession.

Under lac/tso"

~.

IX ..no. J"ftT/I. then.

separ.1lte tner1 01 fact must determine the \'oIuntariness of 01 confes!;ion for purposes of admissibility on the one hand aoo thetredibility of a confession on the othet'" hand. wi th voluntariness being a factor pennissibly considered as being on ~rcd ibi\ity.

A]abama followlthe "Wigmore" Or '"Orthodox" rule in which the judge hea rs all the evidence and then rules on ''OIuntarineu for the pUl"])05e 01 admissibility ai affecting weight or cndibiJity 01 the confession.

JuSt~ Adami reasoned thaI under the Alabama ru10e the jury considers voluntariness IS being 01"1 c redibility.

Accordingly. the jurors must heaT elJi· der"lClt concerning voIuntarinesslcnd· ibility just a$ the trial ewrt hears e,·i· dence concerning voIuntari nesslad· missibility. Therefore . ~ir\Ct' the jury which convicted Shula wasentit ]ed t Q hear evidenct =rning the circum· stances in which the confession was obtained 15 bearing on vo1unlariness. whichcoukl then be used to ....eigh the credibilily 01 the confession. a post conviction evidentiary hearing is in· adequate. The prope.- R1TH'dy iS3 new trial in which the jury htars the evi· dence as to the voluntarin.fSS of the confnsion.

Thcrc is no shortcut to a llegations 0 1 in cffective nssislan cc of coun sel BooI,,;rigltl •. Slat. 0/ Alabolmll". ]9 ABR 1587(ApriI 5. 1985)- Boat .... right was convicted of lrafficking ;n mario juana aoo sentenced to nine years in prison. The court Gf criminal appeals affinned his con\·iction \\'itOOut Opin· ion; t he supremtCOUrt denied certiorari.

BoiIttwrightLater pe'1itioned the trial COUrt for a writ 01 ~ rom", ..obit.. alleging three stp;l.rate grouoos for relief aoo alloeging he WlU denied lhe ef· freli ve assillar"lClt Gf counsel in viola· tion of ArticLe [of the Alabama Consti· tUlion and the Sixth and 14th Amend· mentl of the United States Consti· tution.

Jn Supp:lft of his petition, Boatwright alleged that his trial COllnsel failed to appear at ceoain hearingS, leaving the petitioner without counsel ,,'ell "ersed in the case. He also averred that his trial defense rou.nsel was representing another defendant on a drug charge at the same time, and as a result of that representation, there was a conflict of interest. Petitioner further alleged his lawyer was guilty of improperconduC\ in waiving a jury trial and stiJ>lllating the admission of the marijuana into evidence.

The trial court dismissed the peti· tion without a hearing_ Thereafter, Boatwrighl appealed Ihe dismissal of his writ to Ihe court of criminal al'" peals which affinned , The COIIrt of criminal appeals, in a blistering opin· ion, nOled: "Boatwright cannot blame hi, 0011vktion on tt.. alleged incompele""" afhi. allorlleYS, flisown Olal""",nto COIlvicl<:d him . .. ."

The Suprerne Court of Alabarna reversed and remanded the case to the trial court with the instructions to hold an evidentiary hearing on the malters contained in Boalwrighl's petition.

The decisions of the <XIurt OJ! crirni nal appeals. as well as the suprerne court, recognize thaI an evidentiary hearing muSI be held on a com'" ~obis petition which is meritorious on ils fact. i.e., one which contains malters and allegations (such as ineffecti"e assistance of counsel) which, if lrue, en· title the pelitioner to relief. Justice Beally, writing for the majQrity. noted thaI allegations of ineffect"'e assistance of counsel, if true, entitle the pe. titioner to rehef: thus. the petition waS meritorious on its face and a hearing thereon was required.

It is important 10 read Justice Maddox's special concurring opinion. Jus' tice Maddox agreed Boatwright was entitled 10 a hearing on his allegation. but is deeply lroubled by the "virtual flood of post-conviction claims made by prisoners in both state and federal pr0ceedings lhallheirconslitutional righls were violated be<:ause of ineffective as· sistance of counseL" Justice Maddox

'"

nOled thaI ineffective assislance of counsel has become a sort of "canned claim" which appears in practically every post conviction pelition filed in the appellate COUrts.

Justice Maddox has advanced Ihe suggestion that Ihe AdviSOry Commitlee on Proposed I'!ules of Criminal Procedure address Ihis problem by requiring an acCl.lsed to raise. at the trial court le"tl. on motion for new trial, any facts known tohim upon which he rou.ld base a claim of ineffective assistance of counsel. "If an accused were required to state at the trial1evel facts within his knowledge that would jus· lify a new Irial be<:ause his counsel was ineffective. il would materially aid all concerned in Ihe speedy, inexpen· sive and just determination of Ihe claim."

risdictiootoconsider a motion loamend a sentenn'o which is filed within 30days after the imposition of Ihe senlence. buI which is nOi presented 10 the trial judge wilhin (he 3O-day period .

The Supreme Court of Alabama held Ihat a mOlion to amend a senlence is one made after the trial and should be (reated as one that need not be pre· sented to the lrial judge within 30 days_ Thecaurt noted il was the intem of Temporary Rule 13, AIaOO",,, Rules 0/ Cri",;,w/ Procedure, 10 abrogale the necessity of presenling to Ihe judge

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Loss o f j u risd ic tio n to amen d se n te nce Myra loon 1'ickro" v. Sltlie of Ala·

00"'". 19 ABR 1163 (March 15, 1985) - The Supreme Court of Alabama granted certiorari todetennine the sole issue of whether a trial rou.rt loses ju·

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cases

at

R ece nt Decis ion s o f the S upreme Court of the U nit e d S ta tes E ffective a ssista n ce of

appe lla te coun s e l on first a lJI)Cal is guaranteed b y the due process clausc o f the 141h Amcndme nt fvillI ~_ Lway. 469 U.s. ~ 83 L.Ed.2d 821 (January 21. 1985) - Lu· cey wasamvicted of a drug-offense in a Kcntuc ky statecoun. and his ~tained coonKL filed a timeLy noticeol appeal to the Kentucky Coon ol Apptals.

1I0....tv~. his appeLLate counseL failed to file the statement of appeal required by the Kentucky Rules ol Appellate Procedu~ when hcWed his brief. The Kentucky COUrt of AppeaLs dismi~ the appeal and Later denied a moIion for reconsidenttion. The Kentucky Supreme Coun affirmed. The defend· ant then soughlluzbuJ~. ~Iid in the fedl'f31 district court cha LLenging the dismissal of his appeal on the ground that it deprived him of the right 10 effeclive 3!;SiSlance of counsel.

The fedl'f3L distn.:1 court granted a oonoiitional wril ri ItabuJ col'fI .... or· dering the defendant's release unless the Commonwohh ellhe<' reinStated his appeaL or retried him . The United States Court of Appeals affi rmed.

Mr. Justice Brenn~n delivered the opimon olthe court which held that the due proces!I clause of lhe 14 th Amendment gua",ntetS. criminal defendant the dfecu~ aSSIStance of counsel on his first appeal as a mailer of right.

Justice Brennan ~asoned that: "Nc"mnat r.-praoentauon on an appeat u a "IIht - blw: DOmlnal ~ presenl.uon altrilti-lloes I'IOlsul.

Ii« «I ~ lilt 1""lC«d1!\p OlftStilutionally adoqual~;' ;-ny ..,~ <lOtIn",,1 is ~nable 10 provwIo l'fIKli~ r.-praoentation is In no bell ... ..,.;1K>n than one .... he hit nocounselal • 11."

TheTefon. the lil'$t appeal granted as a mailer of nght ts not "adjudi· cated" in accordance with the due proctIIl clause if the defendant does not have the effective assistance of an a t· torney. Thepromiseof DoJlgI~IU. (Ali· {a."ill. 372 U.S. 353. 9 L.Ed.2d 811.83 S.Ct. 814. th<ll a criminal defendanl has I right to counsel on hi. first appeal as a right - hke the promise of Gidoo,,~. lI'"i",,·righl. 372 U.S. 335. 9 L.Ed.2d 799.83 S.CI. 792. \hat a crimi· n~ 1 defendant has a right toroun~l at trial- w()Uld be a futilegellure unless it mmpnhended tile right to effective Issillanao d counsel.

Deadly force cannOI be used 10 SlOp a no ndangcrous fleeing felon

n nnessu v. Ga rllt •. 53 U.S. !..W. 44iO (March 27, 1985) - The United Stltn Supreme Coon. in a six tothree

decision. ruled the Tennessee statute .llowlng poIioerif10m lOemploy deadly force to prevenl neeing fdons from e!t. caping is unoonstitutional insofar as it authorizes the usc of such force to stop an appa~ntly unarmed and nondan· gtrO\ls suspect. fw...,tver. the SUprl'me c:ourt stopped short of Striking down lherntire Trn~lIatUte. Thecoun reasoned th<ll ~dly force may be properly used against a fleeing felon whcre it is "necnsary 10 prevent the escape and the officer has probable cause to believe Ih<lt the suspect poses • significant threat of ~thorserious ph)'$ical injury to t he dflOer or ot hers. " Mr. Justice While. ""riting far the majority. pointSO\lt th<lt apprehension by the uscof ~adly force is a "sei,U~" subject to the Fourth Amendment's ~asonableness requirement. After weighing the s uspect's fundamental interest in hisown life,as ""ell as socie-Iy', inlerest in judICial determination of guill and punishment against the gt)"ernmental interest in effective Law enforcement. Justice Wh iteroncluded the use of deadly force is not a suffi· ciently productive means of accomplishing Law enforcement goals to jus· lify lhe killing of a "aN ' vWk,,/ f..sp«l.

The 'Carroll Doctrine' extended 10 Ih e warra n tless search o f a m Ol o r h ome (A /ifontia o.

(A r~u.

U.S . 53 L.W .

4S21 (May 13. 1985) - Federal nal'CO' lics agents did not violate the Founh Amendment when they conducted a warrantltsll search. based on probable cause. of a full y mobile motor home located in a public parking lot. Chief Juslice Burger. "'riling for the major· ity. (Onduded that lhe moIor home. although outfitted tofunaion as a re!li· ~nce. fell "'ithin the "automobile cx· ct'PIion" to lhe warrant reQuirement.

A (lEA agent. who had information the defenda nt 's mobile home was be· ing used to exchange marijuana for sex. watched thedefendanl approach a youth who aro::mpanled him to the moIor home. which was parked in a 101 in downtown San ~ The agent kept the vehicles under sur....eillance and Stopped the youth after he left the motor home . The youth e xplained he hd received marijuana in ~tum for allowing the =pondenl sexual con· tact. AI the agent', reqUesl. the youth returned 10 the motor home and knocked on the door, The defendant s tepped out. Without a warrant or consent. One agent entered the motor home and observed marijuana.

Thesupremecourt. in ~ six to three decision. hekl tht the warrantless &earch oi the defendant's moIor home did nOl violate the Fourth Amendment when a vchicle is being used on the highway or is capable of s uch use and ;s found s tationary in a place nOl used rtguLarly fm- resi~ntial J)lIrpo5eS. The tWO justifications for lhe vehicle ex· ct'PIion come into play. First , the ,·ehi· de is readily mobile and second. there ;s a reduced expectation of privacy $lemming from the pervasi~ regula· tion of vehides capable of traveling on the highway. The majorit y concluded that "'hile the defendant's vehicle pos. sessed some of the "tributes 01. a home. it cltolrly fit within the "ehicle uception.

D

NOTICE

ALL ADS AND ARTI CLES FOIt TIl E St: PTEMIJER ISSUE OF THE ALABilMA LAIVYER MUST BE SUB~UTTED BY

J ULY3 1. 198,';

Opinions of the General Counsel William H. Morrow. J r.

QUESTION:

D ISCUSSION:

" May lin anomey e thicall y pem,;! II re putable III W lis t or legal d irec tory (0 indicate thai the atlo rne y

It has come to the attention of the Office of General Counsel and the Oisciplinary Commission that ManindaleHubbelll<!w Dire<:tory ha~ indicated attor~ys may indicate therein three areas of specialty, This has prompted a number of inquiries from attorneys roncerning the propriety of pennitting such listing.

ha ndles cerla in matters a s II 's peciall)" or 's pecialties' or that the atto rne )' does 'spccia1i?.e · or ·sl)'edltl. ize s ' in ce n ai n areasT'

Ethical Consideration 2·14 pt"O\'ides:

ANSWER: There would be no ethical imJlfOpriety in II lawyer per· milling-a reputable 111'" list or legal directory 10 publish data iru;luding " ... one or more fields of law in which the lawyer

or law finn

con~nlrales

... " and " ... a statement thaI

practice is limited toone or more fields ot law .... ,. HOVo'e"er. since the Alabama State Bar does not have any procedures whf'reby through theoonti'lIIing legal education program OJr otherwise lawyers are certified as specialists. data published in a reputable law list or legal directory should not

give the false impression the lawyer listing his name therein has been cenified as a specialist by the Alabama State Bar or other duly authorized certification authority, and the won1$ "speciahY:' "speciahies," "specialize" or "special· izes" should nO! be used.

SIRLOIN ROO M l\lhN~ S",,"_'mcn Me~r Mrl RAMADA INN HUNTSVILLE 3502 Sou th MemO rial P a rkwa y Hun tsville. Alat)ama 35801 205·881 · 6120

"m

'"

"In some inita.-.ceo a lawyer ooofines "ii pract"" to a panicular field of law. In t"e aboeroe of otate oootrolo to in$un: til< .xi,te~ 01 special compel.""". a lawyer slloold not be pennil1ed \0 hold "imself OUt n a ./>«ialil/ or as h."ing spocial training or .bilil)". lh.n in the histori· caliy e=PIed field. oI'dmi",l1y. tr"""mark, .nd pal""tl ...·... (. mpha~i. added)

Disciplinary Rule 2-102(A) provides: "A laW)-e-r . hall not p<epIi"" cauS< to be prepared. use. or panicip;ue in the uS< of any form of public communication that ooolain$ false, fraudulent , misleadi"1!. de<:epo.i,'e or pr-oIeu;""ally self.laudatory statement._"

Disciplinary Rule 2-102(A) (6) provides: "A Jawyer or law firm sh.1l not use profession. I card',l""of...;""al announcement cards. office

oign.,le1terhead., telephone directory listings.

LOU NGE Happ~'

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la"" h"1I.1tp1 dir«tory liSlillg$. SImIlar proIes· SJOnaI not~ or dt>'iceI or "f"'ilpQpc<II..ha.

1M follo"'-;III may be ustd if .hoy an: '" dign.

f"'" form:

-A laW)'ft" .hall not bold hllnstlf out publicly as • qw;.1i<1 ..... /i.lli", It;. ""00. «apI U p....n"''''' under 0 11 2-102(A) (6)or u fol~s:

• •• ••

(61 A 1101'111'''. n:putabio Ia",' llil or ~I dll...:lory ""111 ~ bi<craphical and othtr informa.".., dala. A law list or d •.-..:tory Ii not n:pulabit ,f ill ma~nl or ""'I..... an: I,ktiy 10 be m .. It3d'1II Of" ,njunous 10 I"" publ", or 10 I"" profession. A Ia,,' list i. oonclu.,,-"'y .. tabl,ohtd 10 be n:putabit if il i. artif"'" by I"" Anll'nClln & r A....,.; .. ion as btllII In romph.~ "'lIh 110 ruin and .Iandani •. T"" pul> hsh«ldat. may includ. ""'y III<: loI\(),.·;ng: 0Ul~. including "aIDe of 10,,· firm and "" ..... of professional UlIOCiattii; add,..,...... and tc-kphonc: numbtra: ~ ... IN "'Q'" {"kh "ill., iM ~·~ic~ l/w ill".,.. IN ill. fir", """"'MI""IIJ; 8 oI."_MI 1""1 ,",,00 ;. li.ilM It> "ow ... ......{H114 <I d.. e and pIaa of bnh: da,und ~ of adm_ to J..r ofllal~ and f..s.ral couns: KhootS aL· I......., . ...·lIh dates of .,-ad .... """.~. and OIhtr IChoIUIIC dlSunrtions; publIC or qu ...· publIC offocn: military wnn: poolS of honor.

Itplluthont..,.: Itpllnrhilll pooiloons; mnn· btnh.Pf. offlCn. commUl ... assign ......11I. Ind t«11Ot1 mnnbtnhip In bar aSSOClalions: ........ benhiPi and offICeS In Itpl fralnn"'.,. Ind Iopl _ l e i : I«hnicaland prof"""ional • ...,. ciI.1OtI and 'oci~lIet.: foreign language abilily: namd Ind odd ......... of ",ftrmen. and. ,,·,th .heir consent. namtt of dient TegIllarly "'preRnted:' (e-mphasil added)

I""

Disciplin<lry Rule 2·100:A) (I) ptO'o'it!es:

"'r.

(I) Ala..,...,.. admmftilo pnc\"'" bri(ft ....

Uniud SuI.. Pat...,t Off"", may use I""~­ na""" Pattnl A1Iomt)'. Pal...,t LaW)"ft". Trademark Au"""'")". or T....,...""rk LaW)'ft". or any combinalion of" lhooo \01"ml "" h,.lttu-rhQd and off"", sii n. Ind I la"")"ft" 1oC1".t1~ ~ in lho admi ....lt~ of" lQCtice may u~ desigra.. l ion Admi .... lt~ or Adm;llIlty I... W)"ft" "" hi,let· Ifrhtad and offICI' ,ilin.'· (emphasi, addtd)

t""

Certain of the Ethical ConsidenllKmS and Disciplinary Rules appear to be somewhal inconsistent. ()isci Jll in<lry Rule 2-I02(A) (6) dots not contain the words "sptcialt y," "specialties:' "sptcialiu" or "specializes." OisciJllin<lry Rules limit ,'''' informalion permittfti upon certain docu· ments to the historicallY ~ptfll fitlds 01 admi",lty, trademark and pat ..... l bw. Disciplinary Rule 2· I02(AX1) (professional ards); Disciplinary Rule 2·102(A) (2) (professional annou...,...,ent ards); DiSCIplinary RuIe2· I02(A)(3) (sign on or near the door of thoe olfa); Disclplin<lry Rule 2· [02(1.) (4) (letterhead); Disciplinary Rule 2-\02(A) (5) (elas$ified !;eCtKmS of telfp/loltt' dir«1ory).

We are of the opinion that noadil1jj: a ll 01 the provisions d the Code d Professional Res~nsibility in pari mal~ria the words "specialty." "sjl«iallies." " sjl«iali~e" or "special· 0 izes" s hould be avoided.

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The following reprimands and censures took place April 19, 1985.

Private Re primands • An Alabama lawyer was reprimanded privately for violation of Disciplinary Rules J.l02(A)(4), 1·I02(A) (:0). 6·101(A), 7·102(A) (:0) and 7·104(A) (2) of the C<>tIt '" Professionol Res/JOouibility. The Disciplinary Commis· sion found the attorney, while representing chents in a bankruptc)" matter, $ent a letter to hiselients' creditors in January 1984 advising those creditors a hankruptcy pelition had been filed and further demanding theered, itors cease and desist collection efforts against the clients. The commission found in fact no hankroptcy petition had been filed at thaI time and no such petition was filed until NO\'ember 1984. Over 10 months after the auorney's letter 10 the clients' creditors. The commis· sion found the attorney's conduct violated the abovestated Rules. and this conduct warranted a private repri· mand. {ASB No. 84·.564J • An Alabama lawyer was reprimanded privately for ma king false accusations about a circuit judge. knowing the statements were false and further know. ing the statements would be published in a newspaper.

Thecommission found the attorney's conduct to be in violation of Disciplinary Rules 8· 101(8) and I, I02(A)(6).

t=c, j

• An Alabama attorney rect'i,'ed a private repri' mand for ,'iolation of Disciplinary Rules 9-102(A) (2)a nd 9-I02(B) (4), A pane1 of the Disciplinary Board deter· mined the attorney remO\'ed funds belonging to his client from his trust account and applied Ihem to a fee owed to the auorney by the client, wilhout the prior approval of the client, in violation of the above-stated rules. The hoard further detennined a private reprimand should be administered in this case, • A lawyer was reprimanded privately for willfully having neglected a legal matler entrosted to him , in violalion of DR 6-101(A) and intentionally failed tocarry out a contract of employment entered into with a client for professional services, in violation 01 DR 7·1 OJ(A)(2).

The attorney accepted a fee of $750 from the mot hero! a prison inmate to take such actions as was poSSible to have the inmale placed on either Ihe work releaSf: program or Ihe supervised intensive restitution prt:lgTam: the attorney then took no action on behalf of the client. other than making one telephone call to the district anomey who had prosecuted the inmate and one telephone call to an employeeo! the State Board of Pardons and Paroles. The attorney then failed 10 make any response 10 numerous efforts by Ihe inmate's mother to rorttaCI the lawyer by lelephone. letter and personal visit to his law office.

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Publ ic Ce n s ures • Clanton IaW)"eI" William P. 1Ioggs " 'aScrf1sum:! publicly for ha"ingHlgagtd in ""i11lul misconduct lniu, dicial to t~ administration d justice and ad,'erstly ~l1«til18 an his fitness to pnctice law. in violalion d Disciplinary Rule \ · 102(A). (Athof PTo/mioNll Rnpolf' 5illili/Jd theAlabama Statt Bar. The atlortley coI1tcted a SS.OOO legal fee from a client he ~presented in a workman' 5 OJmptnsation case. though he was enl itltd loonly a $3.000 fee \Inder Alabama law and undtr the order of the Chilton CounlY Circuit Court.

• Mobile lawyer Majo r E. Mad ison. J r .• was cen· s ur«! publicly for wi1l1ull\' having neglected a legal mauer entrusted 10 him and fOf intentionally having failtd to seek the lawful ob;ectivn d a dil-nllhrough rusonably .,·aiiab!f, mtans. in violalion 01 DR 6-J01(A) and DR 7·101(A)(l). dlhe Codtll/ l'n:Ifa$ioMI RtsJlqMi· bili/Jd the Alabama Siale Bar. Madison undertook to ~nt a dient In connection with a motor vehicle accident and then fai1M Hther tonegotiatea seltJement on the client '. bellalf or file suit on the client's behalf prior 10 the expiration dthe statutory period d limita· tions for s uch $uil.

• Muscle Shoals'lawyer Jame~ II. Stanse ll was ctnsur«! publicly for purposely having caused another tocommunicate wilh ptrS<'!llS he knew 10 be memberaof Ihe vcni~ from which Ihejury was to be selected for the

trial of a criminal case in which he ~presented the ~fendant. in violation of OR 7· I08(A). C«h of PTo/ts· Ji_1 Hnpo.uibili/J d the Alabama State Bar.

• (>heni" City auomey J arnea Cun is Bernard was omsured publicly for violation 01 Disciplinary Run 9·I02(A) and 9·102(8 ) (3) dthe CotU of Proia· JioM'RnpoJUibili/J. Btmard ~vf!d funds an behalf 01 aclient in a ....Ofker"scompmsiUion Cllse and failed to kttp a~uate reoords of the funds r~i"f!d and disbursed on behalf of the clienl: furthertnOr"e. he failed to use an identifiable bank account as ll!Quired by DR 9·102(A).

Dis bannents • Mobile lawyer Wallt:r l.. Davi~ was disbarred . effective April 10. 1965. fOf lIaving miS3ppiopt iatf!d $2,374.9-1. delivered to him in connection " 'jth tile set· tlement 01 a civil ~uit. funds he ,,'as suPPJKd to have poitid to the allomt')' for an insurallt"ecompoitny tbat was a poitny to the suit.

Birmingham la .... ytT Ronald Edward Jackson was disban-ed. eff«tive May 6, for llaving willfully neg!«tf!d a civil suit in whieh he ~pr-esentf!d the plain· tiff. Mr. Jackson PTe"iously had been suspended from the practice of law for a period of thrtt yeau. effective March 15. 1985. for "anous other. un~lated violations of the Code of Professio~al ResJlq~$ibi/ily of Ihe A/aba"", SllIll &r. [83-3331

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AmSouIh Bank N.A. P.O. 60~ tl26

AOOsIon. AI. 3S201

"'"""

ArrSouth Bank NA P. O. Box 399 Gadsden. At 35002

..,.,..

.AmSol.f"IBaril NA P. 0. Box 507 . "'" HtnsVie. At 35004 ........... NA

~BankNA

P. O. Box \628

P. O. Box 1488 DucaIlo". Al35f!01

McJbie. At J6629 E94·t575

"""" AmSouIh Bank NA P. O. Box 1150 00Chan. AL 363:)2

",""

'"

In Memoriam Maurice A. Downing

As a !'fiull. he was sUCCI':SSful in ~ng the establishment 01 the Mobile Grey· hound Park. (rile mechanical ra bbit al the park h.as bttn nalTW!d "C,,!IeY" in m:ognilion ol Mr. Downing's tfforu.)

April 10, 1985, M~urice A. "Ca~)''' Downing. a member 01. the MobiLe and Amman Bar Associations. d~ a\ ~

"'.

In addition 10 hildfectivt: support 01 greyhound oong, he consistently ad· '"(lCIIled thee,;tIbiishmem d. and bIer

lUte and graduated from the Univer·

the continuilljl support of, the UniYeT' sily of Soulh Alabama.

His commitment has been Il(lI. only

Mr. Downing was ~UCatrd at the Catholic Boy. Home and McGill lnsti·

sity 01 Alabama School d Law ,class d 1950. l ie immediattly C(Knmenced the

to Ihe

pracli~ of law

in Mobi le and practictd acth"ely unlil the lime of his death.

He saw aClivecomba\ seTVice in tile Pacific in the United Slates Army in World War II and prior 10 that liIM stn~ in the U,S. Border Palrol and as a Mobile police oIr~.

During his service in the state legis· lature. he 1IIOII&Ored bill after bill to authoriugreyhound racing in Mobile.

1~1

profession. bUI also to the

Mobile C(lmmunit y as a whole. as evi· derl(ed by his participation as a memo ber of the Kn igh t5 of Columbus. t~ Friendly Sons of St. Patrick. the bar association and a major mystic society. lie also was a luder in the efforts 10 ~italUedowntown Mobile.

These notices are publisbtd immediate1r after repOrts c;I death are reo;ei,·e(!. BIographical information IlOl apptanng '" this issue " 'ill be publlshtd at a later date if information IS accessible. We ask ;'OU prom)l\ly r~pon the death of an Alabama a1l0rl\('y to the Alabama State 8." . and we would appreciate your assistance in pro"idi ng biographical information for The Alabama LA~'Y"r.

Cu ><icll. G<"","* CuI",n. J r. lHds - Admlll..:l: I9@.I

Died: Aprit20. 19S5 [)o,,-nlna. Mauri« Albt-n Mobilt - Admluod: 195(l Died: ApnlIO. 1965

Uri,-.,..

Ceoree T a)'1or Tuscaloosa - Admlu..:I: 195(; [)itd; Marcl>3L t985

Ih•.,y. CIlarle" lIa rold

Md :l ee. Earl

Bltn"",ham - Adm",..:!: 1967 Died: 1>1.on;h 24. 1985

illm"ngham- Admillod; 1924 Died: February It. 19S5

li8hlfooc . Benjamin 1I~1lr)\ Sr. Lu'·........ - Adm",od; 1933 I»t<l; Ap,.;I 21. 19S5

s.-m.r -

lIo,,-al"d. f ... t.i.... M. ury. Jr.

1.0 ", " 'illiam BlackAher

Mon~ -

Daph~_

DIed:

~tan:h

Admutod: 1935

20. 1985

Admiu..:!: 1933

o...t: Ap,.;15. 1985

r . II..., J ame" Willia.... J r.

Admmod: 1937 i)ttd: J~nuary S. 19ti5

Tall )". J ""n Benton. Sr. SOOItlOOro - Admitt..:!: 1937 Died: Man:h 'rI, 1985

Mr. Downing lNves s urviving him his wife. Helrn R. Downing; his daugh· t~rs. lIelm l'atricia Yrmm. Creilia O. luker and Mary Margaret Downing; and his sons. Maurice A. DowningJr .• and .Iobn A. Oownlllll:.

TM hfe of Ca sey Downing isl1'!CClg' nited a$ one 01 ~ication to tM bilr and de\"OIion to hi s community and his church. and his death Tepre>;ents a greatloMloeach.

The MobIle liar Association extends ilS deepest s ympathy to the family of Mr. Downing.

Ben H. Lightfoot Mark TWlin. the American humor· ist, once advised us 10 '"so live that when we come to die even the under· taker will be 1OrTy." Thai b1l1ersweel commentary could apply to no one morectrtainly than il did to Ben Light· fOOl of Luverne. whodied April 21 after an illness o! several months. ··Mr. Ben.'" as he was known ~ spectfully and fondly to frifflds and a(h-eI"$Iries alike. truly was without ptffS in hia cho&en profession as an Illomey . In • vtrY real ~n~ he was a gOOd man first and a gOOd law)'er second. T~"'asnomatlerlootrivialor too insignificant for his efforts if il meant Ihat. with some work. things could be righted or made better for a fellow human beir\i. No case was 100 tedious. no mailer too unimportant if i\ was of moment to those affected by

il. Althe same lime. no mailer was too if it was wilhin his pralessional capabilities. In point of fact. ··Mr. Ben" was a la~ ""ell·suited for hiltrade in that practi· ally 111 mailers held an interest for him 10 long as he Willi learning and expanding his hori!Ons. The only areas which held more im· portanct to him than his practioe of law weTe his church and his family.

Ben 5trved as chairman of the admi nistrative board of the I.uverne United Methodist Church for several terms and taught an adul t Sunday school class in the church for approximately 45 years. In immediate ordeT behind his church was his untiring de\"OIion 10 hil family . Ne>"ef" Wl$ an~ more dedicated 10 a marriage partner than was Ben 10 his ,,·ife.lIermione.In fact. in I~ter yt:IIrs a regular fixture in lu· ve-rne wu Ben and Hermione. out for an early morning walk or ~ 1~le afternoon stroll in the beautiful gardens ad· joining their home on Fir'$t Sireet.

Ben was. in many respects. a "'renais~nce man.'" He lolled to travel: he was an avid and regular member of the T hursday afternoon golf team at the country club: his Love for lite-raIUTe was unendina and he had a thi rst for knowledge on any lopic he had not conq~red. He fully ;nvulval himself in local civic affairs and was a respected city fathet" of LU\"e..-ne..

For yoo~. aspiring lawyers. he wal • mode! and an inspiration. all rolled into one. From his days as dis· trict atlomt)' for Crenshaw County (when pleadings were written in long· hand and typewrillen with fi"ecarbon copiel- and one was lucky not to get the fifth copy) and the era of "common law pleadings."' Ben grew in his sta· lUre in the community and his TePUlation in his profession. Without oeasing. heHlCOUTaif'd youngpeopleand seemed to gel a particular thrill from the soccn5eS of those who wer-e coming aft .... him. He was. in e,"trY respect. a bridge to boch the pasl and the fUIUTe. and he Telished e>'tr}' moment of it. '"Mr. Ben" difd at the age of 74. In another life.thil might have meant ~ Iongenduranct test .• survival of time. but in hi! case. it meant the swift pas· sage o! a life wel!·lived and ~ loss loall who knew him. Beyond this. though.

complex or '"too big to handle"

the life of Ben Lightfoot serves to urge us al! toward more and beller Ihings.

He would approve if "'e quoted this pa~ from Olh'er Wendell Holmes: '" ' find the gmllthing in this world is not 50 much w~ we 51~nd as in what dirtction ""e aTe moving: To reach the port of Hea,·tn. we muSl: sail sometimes with the wioo and sometimes against it - but we must sail. and not drift. nor lie at anchor."

Earl McBee Earl McBee died in Birmingham February 12. 1985. I~ was 83.

Mr. McBee allended Birmingham public sc:hooIs and rraduated. fit'" IilMM. from Birmingham Southern Col • • In 1929. he finilhed at the BirmIngham School of Law. Mr. M~ " 'asassociated first with Judges L«k and CTee! ar>d lhen with D.G. Ewina.

After a long and successful career in the private practice of law. he was appointed assistant city allomey for Birmingham in 1960 and continued to serve in that capacity until his retirement in May 1972. lie was recognited al an authorityon equity p!eadingand practice in Alabama Ind wrOle a number of articles on this subjtc!: Mr. ;\kBeealso taught equity pleading ~nd procedUI"e fOf many)"ears at the Bir. mingham School of I.aw.

Mr. McBee was an acli\"e rnernberof Ensley FiTS! United Methodist Church. at one time or another holding e>'cry lay offioe in the church. Ile was "ery aClive in working wilh young people and was one of the organirers and original trustees of Sumatallgll Melh odist Church camp. In recognition of his ....ork with Sumatanga. one of the buildings is named in honor of him.

Hear tltt ""on!s of a poet: \l'Mn unh·. ..11 pictu", i. palnl<d Ind tM rubrs.", t ...,.ted am dried.

Whm tMoWHt colon ha,... ,.....

Ind 1M Y'OUOIIt'I enlOe has ditd.

WuhaU ""'.Ind flith. ""e shall ne<d itLie down 10&' In IItO)tI 0&' 1",-0.

Til lhe MI,ltrol" AU Good WO&'xmen shill pul uilO "'O&'x .ne....

Mr. McSet left surviving him a brother and sister . boc h of Ensley.

~Inssified ~otices FOR SALE: SI<lJllltml

~'Mffl,1

/'I1'1U. ElkJIe _wi Gift Tu

Tu R•.

R~/e>".

BIui_ F1tIItt. iM CMiM c:omplottly updated. Call (2IX;) J26.(;ltl or OO<ItXt DeborlIh BnIdtn at 14a; fin! Alabama Bank Buildi.... Birmin&ham. Alabama

""".

INO UST RIAL SAFETY Consultant. ptrIainina to indul1r"iai ao:iden\$ and 1oC· cidftli preYnllion. fiflY )'Gr!' 6~.

SpeciaI~I'" in ("(II"\Iultllions. ~ tellimony. in_ipti(lno and safely t,,"inire-Contact Frm Melo(. ~ Pamona AvttlUot. I~. Binni",rwn. Alaba ..... lSo209. (205) 87%159.

Allll'Q\Ie!ots for classified ad pLactmtnt muSI be submiued Iypewnllen and are subject 10

FOR S ALE: Am./ur T rial .. c:omplotdy upda t~. S(;OO; Am./ur Pltadina & f'nc.

IU ~·ormt. complelt ly u pd al~. S6OO. Both lei. in new oondilim. Will deli_.

Contact David Howland. P.O. Box 10406.

Ilirrninalllorn. Alablorna 35202. phone (2Q5)

254-7090.

FOR SALE: .o.b.ba ..... ~ $cuI"""" ~ 1 " 2; f ednal ~er 1" 2;

f alcral Suppltmtnt; F.R.D.; U.s. Ltd 1 " 2; Am Jur ZeI. Am Jur lqalform. 201; AUI: 2. 3. 4 " FednaI; Willi","on on Con· IACIt. 3d. c:omple!t IU. ~brary. For all )'GOJr law book notda: The Lawbook Ex· Ud .. buY' '' ..rl •. 135 W. 29th SI~. Nt ... York. New YorI< 10001. (212) 5901-434 1.

wr,aoe.

LEGA L RES EARCIIII ELP At~ with te>~ yell .... uperiern in \eglI\ re_",""''';Ii", . .o..:a:.. to Univn-sity '" AlabamaandCumbcrland libra,..... Wf"lI· raw >vlilable. Prompt deadline scrv;o.. $35Ihour. S.rah Kathryn farnell. 112 Moon: Buildilli. Monlj/Or'l\tl)'. Alabaru J6/Or.l'hone 2&4-4958. N. ",, __ ~ latic~ " """'" . """11101 ~~aJjI)' oJ 1M IIgGI >n!>.... U> H ~_ or 1M ufInriu oJ 1M "' ••,,, ~;>w .If<.....1£1S. LEGA l. RESEARCH AND writilli ~ LirmIeII au.,...,.. B.A. in Elli' lith. t.... ~ .lMOci.att editor. f~ fednal disl..:t CIOUn der\I. former Ala· lama SUpmni! Coun cIcrtt. Four }'arl' tlIptI ... _ .o..:a:.. to Cumberland fitnry. Rile 13&Ihou•. Irtne GT\lbbs.. 2(l5.

988-8S2 l (local aLI to.- &mIler Bir· millilllom.) N. rtf,,_ . l4ticJl " ~ ~,",Ijl)' oJ /101 ~I ".,.,;m /q /Jt. peif,m ,,m or 1M l>'",rl iM oJ lIN lalll)'tr ~rvica.

.""", /I.,

"'F-

'a'''';''' ...c. ser.·ice.

EXAMINATION O rQUESTIO!,-' ED Docurnml'" Hallli writina.lypowritil\i and rtlattd uami .... liont. Internalionally coun-<luaLifltd Uptrl wit"""" Dipbnale.

A.rnman Board '" Formoic Docu rnmt

Ua/ni .......

TilE ALABAMA LAWYER CLASSIFIEDS

~~mbcr:

Arncric:an So::riHy '"

Quesuoned Docurne.lt Enmincn., 1M In· 1....... lional Auoc\allon fa" idmtificalion. lhe Briiioll Fcnnsic ~ Sociery and lhe Nalional Auodalion at Crimi.... l Deferwe La ... )'tIl-. Rttirm Ch~ Docurnmt Eum intr. USA CI Lalloraloria.. Hans Maj't1" Gidion. 218 Merrymant on .... Au·

gum. Georaia 30907. (40-1) 86Q.4267.

SAVE 30-60%

• • • • • •

USED LAW BOOKS U~I

Coop • HII.ri_

~~ .

CobgNn . 0Iher0

• W" , •

•

WE BOY - SEll - TRADE

Law Book Exchange I'. O. Box 17073 Jaclul.otwiUe. FL 322 16

1-800.325·6012

apprt.... al. Alabama State Bar members art 1101 ch.a~ for

classified notices up to , ....'0 in· sertlOnS per calendar ~·<'3r. ex· C<::pt for "posItion wanted" or "position o/lered"" lisli ngs . which are al Ihe regular rate.

Nonmember ad"ertisers m uSt pal" in advance and will recej"e a complimentary copy of n~ Alabo"", i.ll",>," in which their ad'-e-lisement is pul:> hsh(d. Additional copits are

53.00 plus postagt.

RATES: Member$:

Noch.a~

Nonmembers; S35 pel" in51el1ion d filly (50) words or less 5.50 pel" addil>Oll3l word

DEADLINES: Classified copy and payment must be received no later than the first day of the month prior to publication dale. with no exceptions.

MAJLlNG: Sm:i classified ad'ertising cop)' and your dlfCk. malleout to Tlot AIa/>Q...., u"'Y". to: Alabama Lawyer Classifieds do Margartt Dubberley 1'.0 . Box 4156 Montgomery. AI-36IOi

posi t ion~

..

offered

T AX LAWYER WANTED Major MontgOmery law finn seeks ta. lawy~. expenenct .... f.m:d. P\e.1se send rnu~ to P.O. Box 429. Montgom<'ry. Al.bam.

36195.

MEDl UM· SIZED F IRM with litigation praoi<;e _ ' " l.wyer with \1010 \0 five

y.ar!<· • • periffice in lit igation. All inqu;'-· its ""pt ronti"'nti.l. R.ply to Hiring l'artner. roo 60x 16818. ~'obil • . Ala· bama 36616.

AGGR £S!>IV E COR I>ORATION near Mobil<. Alabama. i> ... king • • perienct'd

mol .. t.t •. litigation and regulatory at· torney to handle in·house \tg31 matters.

An equal opportunity employer. R.-ply to 3510 8om.>ughs. P.scagoola. Mississippi

,..,

.."

W"ll:EUA8. the SoaroatSa.rCcmrn1B81onersattha A1&boun&Bt.aUI Sa.r haama.&l I"$X)fIlnl(Indatlona to thl8 00W"t nIf!&rdIng rsvIBlcna at !.he ~ of . . oZ 'OM' ........ lbW"'" of u.. ........ __ Bar and !.he _ of D\sc1pllnAry EnfOrcemen!; at the ~ Bt.aUI Bar. and W"ll:EUA8. the 00W"t 18 Int'!I1'116ted In receiving suggeaUona and o>mments I"fI6&%"d1n6 the pr~ >'U1e8 b'om Intoerestecl pvt1e8 &nil. attorney&.

IT IB, 'I'HEREJIORE.OROERED t.h&I. the attacbed P'~ ruI..... be publl!Ilw1ln the ~llqorler, Seooru! Serle!l..A<lv&nce Sheots, and t.h&I. any co""""nts and BtJUe8Uona be tued wtth !.he Clerk of the SuP"'''''' Court, P.O. Sol: 187, YontgOmelj',AL 36101. byJuI,y;U. 198!I.

The Suprsme Court at ~ PrQ~A.meMment8to!.he ~of_

•

_ibW"," &nil. Rul. at Dl9clp Illlary Enforoement at !.he ~ Bt.aUI Sa.r

Whersaa !.he 8ot.rd atCommlsslcnero at !.he AlllhAm. Bt.aUI Bat hall pr..,poeed the follO'iO'1n4 amenQrnente to !.he ~ of_lD:D.al. J ·'bWl)" and the _ of Dl9clpl\n&l'y E nl"ol"OlOTll8llt at!.he A' ·bem.. 8t8t.e Sa.r, and Whe ......... jurUd1ctl.on 18 V<I6I.e<1 In the Sup reme Court of ~ to .&>pt amendments to the saul of ..... pona1bW."," and Rul.... at D\sc1plln&ry Enforoement., !.he 8ot.rdatCcmmlalllcnera at!.heAl&boun& 8t8t.e Bar prop en !.he follO'iO'1n4 amendments. to-wtt:

a-

_'_·1.

1. It 18 rsoommended. t.Il&I. Ap \>lHldlZ. "A" to !.he Al&boun& Rul. at DIec:Iplln&ry EnfOr-oemenr. be amen<ied to add aftoIr "I&w" In !.he ftrst. aomi.enoe thereof. the followtrlg, to-W1t:

rrU ""eII .. ne"".

ATTORN EY JOBS: ~.tion.1 and Fed· eral [.<gal Employment Report: A monthly "'t.iled listing rI. hundreds 01 attorney and l.w.n:I.ted jobs with the U.S. Go,.. mment and 0100 public/private employ..... in Washington. D.C .. through.

OUt the U.S .• nd .broad. S3Q - 3 months; $SO - 6 mOllth.; $9Il- 12 """'th •. s"nd check to Fed ....1 Reports. P.O. Box 3709.

George!OVo·n Station. WashinglOn. D.C. 2OO(]l.

Ann: AI. (202) 393-3311. Vi~'C.

FOR SALE: Two IBM Mag Caroll rna· chines _ u nder rontract with [B~'­ make oif~. Call 943-1579 bttwoen the hour!< of 8-5.

L\W BOOK DONATI ON S 1lMIed! JOIIts Law School" Al.bama Christian College in MontgOmery needs \tg31 bcd<1. journal>. etc. Pickup can be arrangtd.

Contact Kay Newman. 5345 Atlanta Highway . MOIltgomery. Alabama 361934601 or call (205) 272·5820. ext. 147 (1.

8QO.824-1527 in Alabama). Acknowk>.lg· ment will bt modo: for tax PUrp:.lSH.

", o"who voluntarll,y ""'1gMd. or ~ hlII llOen.ge," a It IS I"8OOIIlJlIelld t.h&I. Rule 6(0) at!.he Rul.... ofDlsclpl\n&l'y Enl"oroement be &mended to lncIu4s, _ !.hepre.nt penultlmlUand \a8t.paragr&ph thereto

"new paragr&ph, &8 follOWll. to-Wlt:

"In t.ho8o """"" whl!", the reep<>nGent 18 fowld to have v1clo.t.ed. !.he ~ of l'nd_1D:D.al -,-lbW",". !.he Dlec:lpI1nary Soaro IIhaIl all"" !.he rtt.tAI bar and the ...-poMent to be _ ~ on !.he ~ of appmpl"18.t.e <I1ac!plJne In !.he matter and !.he Dl9clp l\n&l'y Soaro shall DOIlII1der. in IIO"tt.Ing ~!pllne, &I\Y prlO" vtolat1on8 at!.he CoO. of ..... te.ID:D.al. ponalbW"," by !.he "",prmdent."

3. It IS rsoornmen&ocl. t.h&I. Rule 6(b) ( 2 ) at !.he RuI. at Dl8c1p11nary EnCc..,... ment be&m8ndedby adcIlngAftMthe tlrrtllflnl.enoeandbefono!.he eecond!l8ntenoe the tollowtng. to-wtt: "Th.eGenera\ Oouneel ah&ll rna.Int&In" tile for lit ~ al% ye&I'!I &8 to all chargloo tued wtth It and In""",'gate.t by It and Shall m&lt& the ramo avallable to 6AOh grl8v&nO!O o>rrunJl.I<Ioe upOn flJuneen (1 4 ) da,yB' .... celpt ofwrlWln f'8Q\IeIIT. by 6AOh gt'Iev&nOe OOmml!.tee. prcv1ciod. how· """r. t.h&I. Rule 22 IIhaIl be obe!Irvec1 by saul gr\~ o>mmI!.tee."

4. It 18 """,,,,,,,,,nded t.h&I. Rule I(a) atthe Rul .. atDlsclpl\n&l'y Enforoement be o.mendfd to rs&d ... followa, to-wlt:

.u...

"Any attol'TllO' adrnIWId to pl"ll41Dlll&w In thl8 at.ate, ~ _ _ 4JRrlc:t _ruya, thIJ._ _ _ _ r...,..., .... _ tl"0tJ_ _ ~ u.. anonoq.~ _ _ ~ C - . l , and any I.W>I'TllO' apec1&ll,y adrnIWId by trIt;t~.

any ~ In thl8 Btste fur " putIcu.I.o.r p~ IS 8ullIect to tha e:telUB!ve dIsc1pl\n&l'y ./UrI8d.ICUon at !.he Bup"""" Court of Alab&m& &nil. the DIscIplinary Soaro of !.he

~

Bt.aUI Sa.r. llerMt\ar

establl8hed."

8 . It IS rsoornmen&ocl. t.h&I. Rule 8 of!.he Rul. ofDlsclpl\n&l'y Enforoe""'nt be o.mendfd to lncItW! new ,*""",,ph "'f' whlch would re&4 ... toll0"W8, to-wlt:

FOR RENT: Gulf Shore:! _ house di· rectlyon the Gulf .• Ioeps 10. fully equipped. Call 83&0022. 833-2245 or write for brochun: to Ste-·cllarri •. 7211 - lst North. Birmingham . Alabama

A,,,,, ...

"'"

"(t)

~.....m

o f _ A gMeVILnOII oommil.l<loeata.Ol1'CUIt..

COI.U!I.;y or clt;y bar MSOCI.&l.lcn, a.ppl"<l1lOlCl by !.he ~ Bt.aUI Sa.r, or Ita I:>ou4 at o>mrn1B8lonera. and. tha genera.! COIlll8eI. at the Al&ba.m& StatB Sa.r 8hall Upunge any rs00r4a or til .. rsIatIng to

or lnvolvlng Illl3 ccmplAlnt. or grievance w hlCl'l haa been d18mIMed. wlUloue dIac!pllne by o.n ord/)r of the D1ecI.pllnary CommIB810n or by .. pMel of the DIIoclpllnary Bo&rd of the ~ ~ Bu. -.no. wll8reln .. por1odofuma ofU l_aeven ( 7)years haa &1..pstId IUnOo t.he dato of the order dUlml8s1ng MId. oompl&lnt orgrlev......... C. It 1B reoommended ~ DR .:j-I02(A) (4) of the Co4OI of Pn>1..-Jon" ' " -..nend(I(\ to ~ a!ter t.he 1Jord"flrm" In the !1m!. &(Intenoe

" pon.o1bW.tJ' be

thereof t.he toilow1ng. t.o-wlt.: ". placM of adm'''6Iona to the bani of BIAIUI o.n4

7.

_ra1 oourta."

tMtDR3-IOO(B ) ofthe CoQotPn>1_ lon,J _ _ 1"1l1tJ' be &rMnd/)(!. to read as follmn. t.o-wlt.: It!ll~

"A I ..wyer shali not be "".oMlIINl as .. p-.rtner or otherw1.ee. In the P!'&d.lOO of 1B.. with o.nother po!'llOn who !.O not ~ Uoensed In Alab&m& to p!'&d.lOO ltt..... or who !II then """",,nded or d!Bbs.rrecl !'rom t.hep~of1Bw .Orwhohaa volunt.lLr1ly re6Ig1UIdor!IUr'Nn4ered hlB or her lioellB(l to pre.cuo. ltt.w. nor IIhaI.I .. 1Bwyer employ f1Uch .. ""roon In Illl3 ""pe.e1ty In CCnnect10n with the 1Bwyer·. pre.cuo. of I.... , whether as II8Cl'<ltuy. po.raIegal • .-reh ....!sto.nI., or otherw1ge. provIdi!d thU thUll'Ule IIhaI.I ~ epp!y t.c os • '."on as .. jlUI.nel' Or ot.herw1se. with 1m f.UomQ" of .. 9141.0! other th-.n A1BI:>e.m-. who !II IWUlortzed. t.c prseuoe t.nd !II pracUclng In INCh other at.&te."

--

Jntmtutt Jnutstt!J!!;tinlUl I n~ Cl!nDSuitunta, INC. I/ECONSlRUCION NVESIIGAI IQNS CONOUCIW ~ I ~ lAl'l> AlII Sl:A AAl ACCllENllN\fESIlGAIION ACCDE Nl IlECONSTRUCION

u.s.

~ ~"

INCAPAOTAllNG IN..URY PROOUCTS UAl'IUlY fXPERI v"TNfSS COURT CONSlUANl

w~""""

PIIClP£P PAAlY lW!UlY :e~~TI/l. M .

"',u,

MIN .. a NATIONAl SCOI:TV (;I;

.'

PPOfESSlONAI. ENGINI:HlS

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S I_lo" I An III.t.Omay obta1n8 the _ _ of& seoond III.t.O"""Y In &(IrvIng &cI!ent. In .-un forthe 8861Bt8.nOe the !Imt III.t.Omey t.c ..pUt the fee I'IIOIIIved. for the 8ftl'V1Oe8 f"(l~ The IUllOWlt oft.he SpIlt f"" p&1<1 by the!lmt III.t.OmQ" t.c the -.ond o.u.orney!ll $600. The seoond III.t.Omey 18 &1\ Indlvldu&l o.n4

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18 not & corporaUon. L&wan4~a

Section 6041 ( &) of the Co4OI pr0v!de8 tMt..u per80nB eng&ged In & u..de or buII!ne88 t.nd m&lI:1ng payment, In the 00Ul'ge of such trade Or buIIln068 t.c &nOUler poroon. of rem.. oalarItMI. wag..... Pf"(lmlumll. -.nnultltl8, oomponJatlonS, rem.unel'Ulon&. emoluments or other tlxed or (\8I.(!r-mlnMIltt. gatna. pronta -.no. tnoome of $600 Or 1110"" In any t.u&ble YfJIU' mum. f"(lnder .. true &tid. SOOUl'Ue l'fItUrnaewntfOrth thet.mountofsucll gatna. proflt.!l o.nd InoOme. o.n4 the n-.me IIJld. -.dd1w!8 of the ree!ptent of the J>IIYIIIMIt. 1.6041.1( ..) of the lnoome T&x R.egul&Uona pl"ClV1de8 tMt !'fItUrnII requiredby!ltlCtlOn 6041 ofthe Co4Ol are t.c bemado ea.chcalonda.rYMl'and..nth oel't&!.n o:xoept1ona, are t.c be made on l"ormII 1096 o.n4 1099.

Bect.1on 1.6041.1(4) (2) of the reguI&UonB requires the reporUngoffee8 for profo!l8loMlIlM'V1OeS pe.Id. t.c &t.torneyI; ph,yB1cl&n8 t.nd members of otber prof6llll.l0nB Itpe.ld. by ",,!'8OtUI enpged In .. u..de or buo1ne8s t.nd pe.ld.ln the CCUI'8fI oftMt t.ro.d!! or bu81rIM8.

Un<l<or oect.1on 1.6041-3(0) of the regul&Uona. rsturnlI oflnfOrm&1on are not required with """POCt to ~nts t.c .. ccrpol'Ulcn. ""cop!. t.c .. oorporstlOn engaged In pl'OY1dJng mecI1co.l o.nd heo.lth """'" &(Irv\OeII or engaged In the bllUn4 &tid. oollect.1n4 of ~m" for INCh 9BMOe6. other th&n ~nts t.c oertaIn

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hoopIta!A t.nd exl<9f\CSe1:1 "..,.., 1'&c:\llt1eo.

The payments ma.M by thelltlOrneylnSltuo.t.1on 1 are pa,ymenta In the 0CI\I1'9!I ofhl..ll t.rIIde or l:ruaInes& -.no. are ofS600 or more. The MCOlpIJon for payments to oorporo.tlon.!l daeII not ..pply because. under the !a.ct8. the recipient at.tornI!y !.O not InoOrporsted.

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In S!tuatIon I. the III.t.Orney mal<lnt Pl\.}'ment of & .plUdee of S600 t.c a n Wl!noorpOrated IItIOmey 111 required t.c mMe &1\ Intormat1on return under eect.Ion 6041 of the Co4OI.

AIIORNEY COLLECTION System:

Uses 18,\1 S~tem 36 o r 18.\1 IntamllSTer. sends 3 d ifferenTooll~Iion leltel'S.

fiLes sm all claim s . circu it, d iST ri ct oou n s uits. multiple su its and b.:I.nknlplcy. TOI:lL fees imcrest a nd more. \I:'c Tailor to suit your n«'ds.

Inexpc:nsh'!: ~nd ellSy to Gpel':l.tc. Com"Cllkth

Smitherman ~t Smith.

8unon and Associates.

1800 lfackberry bnc. Suite A. TuscaLO()S~ , A l 35401.

(2 0 5)75 2 -132 5.

al~SMITH , 1EJT~f~:~.~!,5J.~, . ".

• J~ /Y

1985

LEGAL PRINTING Legal and Financial Printers Since 1910 Experienced, Dependable, Responsible, Confidential

Prospectuses, Proxy Statements, Official Statements, Tender Offers, Indentures and Briefs

BIRMINGHAM PUBLISHING COMPANY

130 South 19th Street Birmingham, Alabama 35233 Telephone: 205/251-5113 Contact : Harold Fulton , Vice President

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Th,'l's whefe yuu'll find ("r"" Juri, 5t,un,Iu/ll. The I.!~I w(>rd in leg~1 encyciol'l'di,lS, 11w fir,\ pl.IUto look.

C"P'" juri; 0;.., "n,/''''' nmt,lin, alllh('" 1"",. all tho:> (,,;I({-cptions. All the time.

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W ... , Publi.hmS Company P,O. 80. oI<>l6. S.on, Poul. MIM ...... 105,6t..:w.