The Alabama
aW"yer
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The Union Bank Trust Department. Your Hometown Advantage.
Schroeder, Hoffman and Thigpen on
ALABAMA EVIDENCE INTRODUC TORY PRLCE
169,95 R&glllatlV $14 96
by W illiam A. Schroeder. J er om e A. Ho f fman and Richard Th igpen
In this comprehensive exa mination o f the rule s o f AIObllrllll Evidence, th e au th ors present an in-depth diScuSSion of all oreos o f evidentiary procedures Ir om th e relatively simple way. to object 10 evrdtlnce thr ough compotenco, ptlYllegas, relevance, Irnpeacllr'ner'\t, the bell evidence rule end p3l01 evidence Many soctlons con tarn a diSCUSSi on o f Federellewand how It compares
to Its Al abama counterpart Ca$8 law IS thoroughly clled throughout the book An 8!Ccollont tol erance tool l or both Iho Ine xpe rlonced lind V8 1eran lawyer l
COJlYO~t
• 1881 4811 page • •
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, -_ __ T.bl. of Content. - --..., Obl lllning. OI l erlOD fino Obrec l ing 10 EVldonce · Corn~ t once • ExeminiUlon o r W,w ouet • Rele ... ance lind L,mIIOllon. on tho Admll llon oJ Rele ... ent Evidence · Pllvllege s • ImpG/tchment • EMpert Te stImony · Hearsay ' Au then tIcatIon and IdontlloClL tlon - RuJea 901. 902. 903 • SpeCIal RuJes Reill tlng 10 Wlltrng s The Belt EVIdence Rule and the PIIIOI EVloonce Aula - Real lind Oemons trllt ive Evidence ' JudiCIal NOllce ' Plesumptl ons Burdons 01 Proot and PafSuasion
About t"e AUlhol'll - - -- - - - -- -- - - W,lh .... A Sc"'_ •. : _ "'I B A &nd J 0 hom '''' U........ ,y al 1II,1\OI1.1Id "'I II t,4 hom H .. ~ .. d lIw School .... " • n'IftI\I)ff or 11..
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Proc~"'. '1Id "kel Adooc.:v ., ,''' vnl~"Ii'y 01 AI,ba .. a l Ion, 1090 10 10$04 S.ne. "'~n I" hIt botn, P,OI,'l<I! " ' L..... I I SOUI" .. n IIh"~' Unl"'I" Iy Sc~ ooI01 l'W wl""ft!'le IIl1C!'Ie. ~_nel ,1111 PI(ICId~I'
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Roc""" Ttrogl*! ."".. _ 110. a A _ t,4" hom 1M Uno_"'y 0' AJ~"", _ 110. J 0 I.om 1M V"' .....,y 01 AJaIWomI SchOOl 0 ' L_ 11to .... 1 ... Ll M hom Vole Uno ...... ,y _ 11110 .n II 0 IHOf\II< .. yll,onI Ihl Un, .... ltyOI Alobo",. Ii•••• member 01 11.. """b.m~ S" 'o h' ..... OCI."Of' H. II cUII.nlly. PlollUor 01 L.w 111M Unl ..... "v ,,1 ""'ban" SChool a l L.w
Buy Schroeder. HoffmBn Bnd Thigpen on Alabama Evidence and ge t 30 % OFF any of th e tr eatises li sted below: GI/mblo & COl/By 'S Alabema law of Damages ·1982 (wI c ur $UPP.) ~9 ::10' $55 ,96 McCur/oy & 081/1S' Alabama Divorce, Alimony & Child Cus tOdy ·1982 (wI c ur supp) -&6790 $47 .55 Hansford's Tilley '. Alabama Equity 2nd Ed. ·\985 -1 '9 sa $34.96 Hoffs Alabama limitations of Actions 8t Notice Provisions . 1984 (wI CUI supp) .$3795 $28.66 Hood, Hardy & Silod's Alabama Workmen' s Compens.tlon · 1982 (wI CUI s upp) 5<44 ~ S3' ,46
1---- AND/O R get 40 % Je ff rl6S & Wllkmson's
OFF any of " Th e Law In , , ." series listed below : - - - - I
Collection of Accounu · '981Iwl c ur supp I $2896 $'6. '6
WSI/hai/,S Corporations - Formation With Forms · \98\ (w I CUI Supp) $~i Q&. S1 6 .16 Holts /on 's Detinue, Exec utions 8. Mec hanics' Uen. ·1980 (wI c ur supp) $2€ 95 $' 6 ,' 5 JOffflBS' Enforcement of Security Interes ts in Pers onl l Property ·1980 (wI CUI supp) '26 ~ $16 . 15 Huskey & E/herfH1ge 's Lendlord 8. Tenant - Breach & Reme dies ·1981 '2695 $16 .15 Jeffries' Wrongful Death Actions · 1919 (wI CUI supp) --$2695 $16. 15
Want fut. 9fflc ifJnt 59rvice '
Call our toll-free WATS
1- 800-241 - 3561
THE l,~'l HARRISON COMPANY. PUBLISHERS 3 11 0 C.o...... P. l k· P 0
ao.
11iOO ' Nore. ou, GA 3OO9 , .16OO
87· A7
185
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,.6
Kirkl"V,I n Orsdel(ncorpoTdled Insur,lnte Services Division The KVl Ccntcrl m Third Stroet Dt.'$ Moines, Iowa 5OJ09
luly 1988
The Alabama
3-w-yer
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Pos tmaster: Send address changes 10 The Alabama l awyer, 1>.0. J)ox 41 56. MonlSomcry, Al 36 101.
The Ali/bi/m.l Lawyer
A Current Overview of Alabama 's Mechanic's and Materialman 'S Lien law- by J. Lister Hubbard . 202
Judge Hugo Black and the firSI Amendmenl: an Alabama Con nectio n-by Hollinger F. Barnard .. __ ..... ___ .. __ 220
Mechanics and matC!rlalmen hilve lonl:l enJoyl'fJ certain preferences .lIull>rlorhles with rL'5pcct to their lien righ ts. '-Iowever, perfection ilnd enforcement of these liens may re(lulre affirmative action by the lien· holder.
Th/! appelia1c opinions ,luthored by Justice ' tu ga Black represen t an eloquent portrayal of hb judicial philosophy_ His concern (or IndividlJOl] ffl'cdomcs I~ best ex· empllfled by his writlng~ on thl! ~afegurds afforded by the First Amendment.
INSIDE TH IS ISSUE tnt('rvl{'W- 8cn I I. Ha rris_ Ir. [~KutlV(' Dlreclor'~
l<epon
Pro4'ile- Kehh B. Norm,)n About Mcmbel\, Among Flrlm Rldlnll the CI«Ults Bar Brlek t tonor Roll - IOLTA Coo'l.'(';tIl111 the R('Com on Appeill
Clf
Om)Ottunl!le~
Con~uhant's
Corner
166 192 19) 197 199
201 209 212 216 2111
BUilding Alabama'!> Courl hou~~ of the GCll('ral CoYn~1 Young l..lWYl'fS· $t>Qion
Op'nion~
l.I.'1Iistd\ive Wral'-Up Commiu('(' N("WS MCLE News Reccnl
Dcddon~
Memori~ls DI~lplinary i(ClJQrt CIII~slfled
Notices
226 228
2)0 232 2]4
236 237 244
246
247
187
Interview Ben Harte Harris, Jr. Tile (ollMins interview of Slaw bar Pres/clem Ben H.1rris was cOlu/llclcci lasl month by Robert I-Iuf(,lker, editor of The "Ii.lbama 1..'lW~r. A I,lbilllliJ Berl, ilS you arc leaving office, I ilm sure you hilVe L,ut/ye f : a sense of S<1tisft1(;l ion of accomplishing some of "fOur goals. In retrospect, Whill do you sec ;15 Ih ~
gre'l1csI strideS Ihm hnve be拢!n made dUfltl8
your administration? Harri s:
Wtll, thert:! are a Ilumber of mil1lerS, most of
other captiYes h:wc gottcn up where Ihey write CO\ICragc up to $3 mllUQrl and I think up in North CarQllrlalhey have gone higher th;1n thilt :II times. But, from our survey'>, it looks like a high pcrCC!ltagc of our bar would be served by a policy with limits of UIM'ards of a million,
wl1l eh I picked UI) (rom my predecessor, Bill
Scruggs, that we rnO'v'Cd forward on. One would be getting the IOLTA progr;arn underwily, gCHing the Client Security ~und re-established. \fit! have al so hired a new gencril l cou nsel and, l>crhilI)S, th~ biggest item on my agendil wa s whether 10 go forward with a captive insurance COml)any.
AL:
Harris:
A L:
Himis:
A L:
HJrris:
188
On April 1, the board of COnirlllSsI0!1C(~ VOted 10 do Ihal, and we now hallC a coml>any orga路 nlred, So I would S<ly those were the malor m",路 lers Ihal we h;wc movt'<.l forward all . Pl us, we have gone 10 work in Ihe <Ire;! of post-conviclion \;ilpilal case rcpresenl,ltiQn, represenlill ion of people on death row. We all ha\le recei ved copies of the mail-outs (rom Ihe bar h/;ladquarIIH$ on Ihe capllw Insurance company. What has been the response of Ihe rnernbcrs of the barl Well, we 'illsed the org<llliz<ltional funds. We have r;!iscd something over $1 75,000 by lawyers giving $125, with O\'Cr 1.400 lawyers responding. So we have Ihe organizational fu nds, and the company has been incorporaied <lnd is known as Attorneys Insurance MUlual of Alabama. Wc hope 10 be in position to begin prumol ing and obtaining Ihe capl1allz,l1ion by Ihe timc>: of Ihe ba r cOllvenl ion In July. What Is Ihe tlmetJble on Irylng to have the In路 surance company In plJce <lnd writing coverage? Reali stic;!lIy it would w ob;!bly lake .1 year. Hopefully, it would be Quicker th,ln Ihil1.1 would hope we cou ld do it within six months; maybe a year 'M,luld bf! more (!:'aiiSlic. Wh;\1 lype5 of co...erage will the company be offering? 11 will be essentially a claims-m ade policy Ilhlnk and with some lIIil 01>tlon5 on It. Some of the
Harris Al: Who w ill administer the processing of the clalmsl Harris: It will be opcrtJteQ like any other inS\jr~ncc comIXlIlY. I would tJntici patc Ih:.tlhe compJny v.ould prob.lbly hire a j)fofcsslonal claIms m~nager. \M::!
/111'1 1988
..tt : Harris:
..tL: Ha rris:
..tL:
Harris:
AL:
Harris:
wilt have a claims commllll..'C on the board of directors which W.1S recently organized, and Bill Scrugg!i is chairman of Ihe boilrd ilnd Henry H enzel is going to be president oI lhe company. You menlioned the ilppolnlmenl 01 a new general counSQI for Ihe stilte bar.. WhQ is thill. and whal will his role be? We were mosl forlunale 10 be able 10 ~ Generill Robert Norris relurn home. GenCoral Norris is presenlly Ihe Judge Advocale General of tnc UniTed Slates Air Force. He is a IWO-Stilr general. an Alabama lawycr who is retiring ef· fccli'l(l luly I, and by AuguSI t or no liller than September 1, he will be on bo.lrd with us.. He has had a ycry b road background in all phases of Inw IhroughoUI his Air Force car~r. He is uplo·d ale on the model rulcs and he Is anxious 10 gel 10 work ilne! w,lnlS 10 milke a high prlorlty milltef gell ing in louch with IOCill bilrs ilnd pilr· tlcu lilrly IOCill grlL....ancc Commi ttees. Will he be ilWOlyt'CIln disciplinary proceedlngsl Yes. Of course, he will be in charge of Ihe offke and wili llilYC I~ or Ihree assiSlanlS under him bUI he will be ilWOl\Il>d in Ihe Investigalion, prosecution of claims and opinion writing . He will h;we, basically. a free hand as 10 how he org.1Alzes his own oroce. You have been on Ihe board of bar commissioners for a number of years and, of course, lx.'Cn Ihe presldenl lhis paSI year; do you sec any trends in our disciplinary proceedingsl I Ihink Ihat ovcrallthe number 01 disciplinilry proceedings hilS Increased as the bar has grown. We do have a very large number of complaints, bUI in Alabama we investl gale everylhlng. Thai Is one reason our numbers, when Ihey arc shown with Olher stales, seem 10 be high. But I lhlnk we alwilyS nc.'t.'d 10 be looking OIl our rules 10 sec how we can make Impr()VCments. Oliver I-te"d Is in chargc of a lask force Ihal is goi ng Ihrollllh Ih"1 l)rOCess now and will be repOrting within thc nexl ft..W monlhs as 10 any rc.'(ornm~n· datiens 10 strengthen our procedures. W hm iH~ Ihe ongoing arcilS Ihllt were not com· plct~ during your tenure Ihal Gary Huckaby will need 10 addrL"Ssl
..tL; H arris:
At: Harris:
AL:
l'l arri s:
A L: Harris:
and 0(( and running will be one of his major iter"ns. Is stock going to be Issued In thai companyl It is goin810 be a mUTual company, bUI people will I)urchasc Ihe debentures. ~ have all read and sccn a 101 aboul Ihe IOllA program . What is Ihe curren t stalus of Ihiltl We have what Is known as an opl-oUI program, and Ihe opt-out dale Is Seplember I, I believe. So everyone who hilS nOI Oplcd-OUl will become a part 011\ SeplI!mbcr I, 1988. The response has been good. As of loday we have had 1,235 I;:rw. vcrs sign up (or Ihe 10LTA program, ~nd we OIl· ready havc $36,500 on hand . I think il is com. Ing along prelly well . You menlloned Ihat amonglhe progrJms established during your adminiSlralion W;l SpOSI,on· yicUon tellfcscntalloll. Tell us a lillie more about Ihe stiltus of that.. Thi s Is a progrilm we gOI Inlo early Ihis yC01f. Chief Juslice Torbert suggested Ihill we look OIl It because we have oYer 90 jX.'Ople on death f(H{, and Ihe counsel ,lV;lllable 10 rcPteS{'l1l them have dwindled. We need Irilined I)l.\ople wl-c;l are will· Inglo lake these cases and do somelhing aoou t the backlog Ihal has developed and see Ihal Ihese people arc I)ropcrly repf~cnIM . What will be the bats role? At Ihis l)Oint. we are trying to get funding and h;we inCOrJ){)rMed Ihe Alabama Cal>il.ll RcprcsenlaTioo Resource Cenler, a corporalion Ihill will be he3<lcd.up by former G~rnor Albert
Of course, Gary's number one l)rojccl is going 10 be capltaliling Ihe Insurance company al· IhouSh It will be done by Ihe board. He, of course, will be very irwolved "nd ycry interesled In It iln<! aiming al $2 .5 10 $3 millioo c"pilaliza· tion. Seeing Ihal the company gelS capitalized
The A/aooma lawyer
189
Ai :
A L:
Harris:
190
Brt,ower who has been chairing our task force. It will be h(lO~ in one of the buildings (lVoiIil,.ble through the Unilll'~hy of AI"b;lma Law School and provide lraining and aSSisto'lnce to lawyers appolmcd In Ihl'S!! COlM.'S and be Involved In recruiting lawyers to take these cases. We hJVC met wilh Chief Juslice Torbert and Justice HOUSlOn of the Alabilma Supreme Cou rt, .. lithe chief federal district judges in Ali\bamJ ilnd Judge Roney, chief judge of Ihe 111h Circuit, to try 10 pul logNher a coordinated process. Ceorgla and Florida already have cstablbht..od l)fOgrams or arc further along than Wi! are, beIng Ihe olher two Stolles In the IUh Circuit. win! is Ihe pr~nl St.ltus of the Clienl SecurilY Fundi There was a m,mdillOry ilSse<;sment of $25 per lawyer for up to four ye,lrs thaI origin<lUy indud路 ed all lilwyers. The order rt..'Cently has bl.>en
amended 10 not Include special Members, bul as oJ thi s dale we have 6,869 I~rs who have made a payment in Ihls year. So we have $171,725 on hoilnd. I think we are WE'll underway In gell ing this program going. Is II operMlonal to the e~lent that dl'llms CM be paid out at Ihls slagel
Harris:
Yes. \oW h<Ml the money. I do not t ~ink lhere has been a claim ~t , bUI I think it is a \I\lry good program. I really knOON of no olher profession Ihat takes on this typ(l of obligaUon. The idea is to cover a gap In client protecllon b4!cause millprilctice policies generally exclude willful thehs of dients' money, and the fund would of路 fer some prolecUon 10 the public. The IXlYments would be a matter of Brace and nOI a matter of right.
A L:
Can ~u provide us illl updme on the Is~u i! of law)'i!r ildvert iSingr
H .. rris:
WI.!, of course, have our rule, a teml>orary ru le in effl'("t. The bo<Ird of commlsslone~ adopted model rules of professional conduct and recommended them to Ihe SUI)reme COll rl , <Jtong with comments, so we ar(! walling for our rules to be adol)ted by tnc court, whether they be classified ilS temporary rules, I think that one of the int!.)restlng Ihings On the horizon at the moment i ~ In rel,l1ion 10 Model Rule 7.3 wllh respt'Cl lo largelL'd direct mail solicilillion. The U.S. Supreme Court ~en ll y gr;mtcd cert In the c,tse of Shapiro v. Kentucky Bar AS$oci,l(iOIl where Kentucky disciplined a lawyer for eng.lglng in taf8eted direct mall soJicllJtion. As I understolnd II, In two eMlier cases federal circui ts apprmeti targeted direct mail solicitation, bUI In this Kentucky case, the Supreme Court has granted ceM. I think ~ ~hould be getting a definill~ answer from the U.S. SUllrtlme Courl on Ihill 500n
Ai :
DO芦..'S the model rule permi t solicitation of this nature?
Hilrris:
The basic model rule doos not . Our version is broader than the model rute 1x.'C,lU5(! of those earlier cases I referred to. So. 11 m.ly be that If Ihe model rule holds up I would think Ihat ~ would move to Ihe model rule. Of course, It Is UI) 10 the Alabama Supreme Court on lhe wording of our rule.
.A i :
What items of legislation did you sec to successful fruition while you wcre In offlcel r did not have a lot to do wi th 11 but the Alilbamil legill Services liability Acl WilS Jl<Issed duri ng
11 i1rrls:
July 1988
AL:
Hilrris:
our Ieeei'll lerm 01 leglslalure. This act creall,.'S one form of aCllon and onc cause of aclion againsl legal services providers, 3!)d we som~ lime rcfcr 10 it as Ihe lawyers' TOri Reform 8111 , The favorable a51:ICCt for l1lWyers Is lhalll short· erlS the statute of limitill lOlls to two years wilh a d lsc~ry period where the .,bsolute outer limit can be fOur years. This wa~ something thaI was Inlroduced lasl ~ar and il did nOt g(>t through the legislalure, and It was brought up again ;lIld has passed. So. Ihis should be illloth· er help along with the captive Insurance com· 1)illlY as to lCM'ering oor I)rofessional liability in· Surance r;I!e$. Is thero any other legislation thill you foresee beIng offNed for thl' benerlt of the bar in the nexl year or sol I gUe5S it will be a question of what Gary Huckaby and Alv.l Caine, cerlillnly what Ihelr Ihoughls will be, but I think there 15 interest
A L:
Hilrris:
A L:
Harri s:
The Al,looma LalVyer
i18i1in in iI non.partlsan elooion of judges. The bar gOt involved in Ihls a fcw ~ars ago :and I Ihink we actually 80t iI blllintroducoo but we were nOI successful, 001 I am hearing grOWing concern (rom l1lWyers abOut the need (or this. t expect the Uniform Arbitration Act to be re·ln troduced. Are there any thoughts thill you w;mt to leave with usl I hll\lC Imd a great experience, really enjoyed this year and had a tremendous amount of nelp from II very finc board of commissioners. Of course, as rcal)Portioned II is a much larger body, but I think It has funClioned eMtremely well. I have had a lot of good task force chairmen who have reall y laken the ball and run with it. which has made I1'T)' ~ar I1"IOSt enjoyable. I am most grateful for having the opporlUnity 10 serve In Ihis ofrl ce. So now you can go back to work, and your law p.1rlners wilt be htlppy 10 see you back. I hope they'll take me back. •
191
Executive Director's Report ,
T
'r
I,
rrel
he Alabama State Bar is completing its firSl yeilf unvcr the exp(lnd-
eel board of b<ir commissioners.
Thirtt..'en new members joint..od Ihc governing body July I , 1987. The goverr\ing
bodies of most bar associations are considerably smaller than even our original J9-member board. Our neighboring stale of Florida, with a lawyer population five t im~ Ihat of Alabiama, h"d Iheon1y other
39-member bo.lrd, tying us for the largest governing body. In 1987, most Clssocialions revil!Wlng their ~IrU Clu res were look-
in8 al reducing their bomd size 10 streamline their operations while we WCI'e about to experience a one-third Increase In size. I was skeptical thallhe expanded board would significantly enhance the Alaooma Stilte Bar opcriltions when weighed 1Ig.1inSI the (0$1of expanding. The ef(I,.'(livl!nt!Ss of the cne-commissioncr-per-circui t boord h ..d .. Iways im l)r~ssed me; I honcstll' felt "bigger" would r)()\ be betler, The quality cJ the new members-in fact the overall caliber of those persons who X1llghr the new poSition:r-was out· standing! ! now am I;onvinl;ed that the extrilordl narlly productive year we are concludir)8 could not have been reallll!(1 without the expandL'Cl board. I cannor recall a Illore active year, arrd do not believe the ach ievemen ts of the past 12 months would have been possible with· out these 3ddition;a1 " working leJders," Consider the folloWing . The CLIENT SECURITY FUND is a r~ality; 6,869 members hiwe made their 1988 paymenb. One thousand two hundred thirteen of these were special members who were iubsequell1ly exempted ;after 1,430 already had paidj only 269 asked for refund s. There Me only 344 members who will require follow·up
192
statements. Even though we created a Client Security Fund in 1971 , il never 31;hievoo viability, Our new board memo bers helped tremendously in educating the bar to th~ Cl i ~ nt Security Fund concept. IOLTA in Alabama has captun..-'d the attention of marly of the oldN arid estilblished program s. The recruitment effort of our board has resulted in our reaching over 1,000 participants in 90 days, and income for the first quarter has exceed· l.-'d $35,000. The real benefits of the program will be malized when the Alabama Law FoulldnriOII, InC., mtlkes its fir~t grants In late 1988. The MODEL RULES OF PROFESSIONAl CONDUCT tire tIIvaltlng action by the Supreme Coun of Alab..lma. Work on the proje(t oog..ln before the e~p(lnded board. The bro.:ld e ~periences of the board members have resuh<.'Ci in a mean· ingful set of praoicili ru!t.os for all lawyers. The Incorporation o f the CAPI TAL RESOURCE CENTER to delll wi th the POStconviction appeal proce5§ fordc ath row inmates wa s accomplished In record time. Broad board Sl,.pport was essential, AIM (A1torneys Insurance Mutual of Alabilm(l) is incorpor<1ted . I hope the be underway In capitalization effort July 1988. In the undcr1 ilking. the leader. ship of the board of commissioners WilS cssentlal, and their con tinued SUJ)jlOrt In the capi tali zation effort will be the key \0 AIM's success. The LEGAL SERVICES LIABI LITY ACT is the bar's key legislative tlccomplish. memo The larger hoMei contributed to the highly 5U1;:cesMul efforts to win pas· sage of rhi s bill. The ooard wa s a key element In the bar's ability to gain inl)ut in the drJftirlg of other legislation wh i~h did nOl pa ss, but which would have been
"m
HAMNER significantly beller after Ine bar's Input, had it been enacted. The addition,,1 members have enabled the bar to fulfill its professional reguI(llory function more effidently. The abilIty to more readily convene (lvr disci· pllnary boards has I>crmlnll(j a mOf(! ex· pedltlous halldling of cornplaints. Mosl bars would like 10 achieve one or two of these goals in an admlnim.l tlve year. Our successes this year afe truly remarkable. The (lelditionill board members hlwe made the bar more represenWtive. I do not thInk any of Ihe new members fully appret;latl!(! the demands on their 5(;h<.>d· ules In serving you. It w as gratifying to see every one of those pcrson s who Wl!W elected (or:l one-year term seck election 10 a full three-year term. The future is a bright one. Fortunil tely, \o\oC have no! yet been adversely affecled by a shrinking voluntel!r b .. se of Cilj)ilble (lnt! willing workers. •
July 1988
Profile
Meet Keith Norman completion of his studies at Duke, he enrolled ilt the University of Alabama School of law, gradu~tlng in 1981.
Norman
eith B. Norm'ln, an Opelika native, joined the 5taff of the Alabama Slilte 8ar in early May as dIrector of I)rogri'lms and activities, bringing a broad rangc of experience 10 thi s positi on, as well as a proven record of voluntccr leadership In the profession.
K
Keith Is a gradu;J,te of Duke Unlversi· ty. He was in the school's Institulll of Pol1c.;y Sciences and Pulllic Affairs. Upon
Following graduation (rom law school. he served as assistant director of the Alabama law Institute. Keith then became sta(( attorney for senior Assod(llc Justice Hugh M!lddox at the Supr(lme Court of Alabama In ] 982, and in 1984, he st;lrled with Balch & Bingham In the firm's real estate and litigation sections in its Montgomery office. Keith has been a member of the board of editof5 of The Alabama Lawyer since 198). He is active In tht.! Montgomery County Bar's Young lawyers' Section and served as pr~ident laSI year; Keith also has servLod on the stMe YOUllg Lawyers' Section EX(lcutlve Commlllcc si nce 1985. His demonstrated interest in the work of our bar, and the profession In general, caused his selection for his new position to be widely acclaimed and very favor·
ably received, and his firsthand working eXI)Crience In bar actlvlti(!S allows him to be ;In effective bar exC(u!lvc. Keith oversees all progrilms and works doseIy with Our committees and sections. In addition he work s with the Mandatory CLE Commission. His prior experience as counsel to the Judi ci ary Committee of both the Alab.lma House (1987) ilnd the Slate Senate (1988) brings a new dimension to our in·house legislative interests. Keith is a member of the First United Methodist Church, the Kiwanis Club and the program bo..1rd of the Montgomery YMCA. He is married to the former Teresa Miller of Dothan, who is a member of the Alabama Slate Bilr, ilnd s:arf allOfllL'Y for Justi ce Oscar w. Adams of !he suo preme courl.
The writer Is p.1rtlculariy pleased to have thi s most able and extremely weUqualified addition 10 the bar head• (!uarter's family.
RTH
The Alabamil LiJlwcr
193
Birmingham Eats Out by Gregory H. Hawley
/ / /
/
welcome, again, to Birmingham and
the Calleri". Tr-is enormous milll en· closes 1.75 million s<juare fcci of shopping spllce, h1cluding ;I skyligh t nearly a quarter of II ITIlle long. and offers many
Stores new to Alabama. For those who have benet lhlngs to do than shop, here Is a sumnmrlzC!d version of the 1986 Alabama Lawyer's lIuldc to
Birmingham . Rcslaurant s The variety oi
~SlilurantS available In Birmingham is greaL The following list
is not exhausth'C, but merely representative 01 f<M:Irite spots 01 the BIrmingham
194
/
/
// ,/
Silt,
For a mo~ complete guide to rest·
au ra nts, consult your local hote l or telephone directory. FAM ilY RESTAURA NTS John's Restaurant
112 21st Street Nort h 322·6014 11 a.m. to 10 I>.m.
Monday-Saturday Closed Sunday The seafood is alwayi fresh , the cornbread is good, the slaw cannot be beat and the steaks (lam lold) are more than adequate_ Do not pass up the softshell <;rabs if ~i1i1ble.
Michael's Si rloin Room 43 t 20th Strcct 322-04 19 Closed Sunday If you want your oilsl, ml!ill lind potatoes f(lrc lind entertain yourself by look· Ing ilt photos of sportSheroes, Mlchocl's Is your place.
LaPolfl!C Restourant 2013 5th Avenue North 251-5936 11 a.m. to 10 p.m. Closc.-d Sunday Like other r(·staur.,mtS of lis kind, It is aJl-too-frcqucntly com,>arcd with John's.
July 1988
Unfortunately for lJlPal'OO, John's usual· Iy wins; some say It Is 11 close call, If John's Is crowded, try laParee,
leo's Seafood and Steak House 401 18th Strcet Soulh 251'()347 Closed Sunday Uke others, Leo's seems to h<NC fol· la.ved the John's modeL If it Is stlllightfor. ward frilod or broiled seafood you want, try leo's. UPTOWN Highland's Bar and Crm 2011 11th Avenue South 939·1400 Closed Sunday
Lunch only on MOllday This Is Ihe place to be seen In Birmingham. Until r~ent l y, It was clearly Ihe
"best" restauranl in town accOIdlng to Birmingham's yuppies. The martinis arc outstanding, !he wine list is rem",k.. blc and the variety of Interestir\g American
and nouvelle cuiSine Is wonh trying. For those who do not want to break tnc bod· get, you should go to the bar, have a mMIlnl and try some of the crab claws. Theil go out and grolb a hamburger or barbe(lue. The Bombay Cafe (corner of 7th Mnuc South and 29th Strl!et}
322·1930 Closed Sunday This is the newest N\)esl" restaurant In Birmingham. Bombay has an imilginali...e menu; the food is ~uperb and the scrvice
lakcvl('W Bar & Grill 744 29th Street S<luth 322·2545 Closed Sunday The iltmosphere at lakevlC'W is l"Vlln more CMual than those above. It Is a very good neighborhood restaurant.
size, 11 was difficult to find 11 seat. But with the recent prolif@ratlon of new restaurants in Birmingham, It has become fairly eilsy to get into Jinky's. Do not let the art deeo fool you, Jinky's has very good food and some say il has Ihe best steaks In town. Christian's Classic Cuis ne
SilY(lrlrOn Cafe 3813 Clalrmon! A-.enul!
591·3707 This rcstilUmnt is popular with the For· est Park (I.e. urban ''yuPl)le''; i.e. high percentage of law'l'!rs: crowd. While Sil. vert ron's food alld service are both more th<ln adequate, lis principal attraction seems to be its location- In walking distanct! of Forest Park. Re~til uran t ilt the Tlilwilcr Tutwiler Hotel Polrk Place & 21st Street
322-2100 O l>en Sunday The Rl'Staurant al the Tutwiler has very good food and is trying hard 10 make a repulJ tlon for itself. In addition, the bar 31 the Tutwiler is second only to H igh.
Embassy Suitt.'S Holel
871·3222 Open Sunday
Reportedly the best French reslauf3nl in Birmingham, il places less emph(lsis on nOUY(llle or American cuisine (lnd more on tooi tional French, with trndi·
tlOMI French prices.
Wi nston's Wyn(r~ Hotel 988·5665 Dinner at Winston-s Is an all-cvening affair. The food is very good, and very well·prepiued. While some Indlcmc thaI service is slow, It seems Ihat the seNice al Winston's Is Intentionally slow-to al· I(W;I IlalmnS 10 eniClf
iI ler~urely
Winston'~ i~ probably Ihc ~t ,II iI holel in Birmingham.
meal. restaurant
land's, Meadowlark ReslJurJnt
Jinky's Bar 8. Grill
2830 7th 324·3126
A~nue
534 Industrial Rood
South
When ,Inky's first ol>ened, l'Yel)Qne went to see wh;n Ihis 11tW, small an dcco restaurant was aboul. Because or its small
Pelham
663·3941 Meadowlark Is Just off Highway 31 about 15 minules south of the Galleria. The owners have turnl!d an old country
is very good. Dexler's on Hollywood (two locaIIOr\S) 354 Hollywood Boulevard B7().5297 Chase lake 1 Chase Corporate Drive H""""
987-8235 Dexter's is a less sell-consclous version of Highlands. It is inlimatc, without 00Ing sh(p.yy, and Ihe service Is usually
Crcsory H. Hawley Is a 8f,ldull!C of liar· vJrd Col/cge analhe Georgelown Uni· \lCrSlly Law Cenler. He clerked for u.w. Clemon, Un/too Sl.1les Districl /udge, and Is an <lSSOClllle with the 8irmln8hDm firm of Mllyn.1,c/, COOpl"!r, Frierson &
Ctlle,
Poe.
good.
The AI<lbam/l lawyer
19'
f':lrmnouse into an extremely pleasant place for il relallCd dinner. Tney Hr'OW all of 'neir nerbs and spices, as well as mOSt of the nO\oYer5, on tne pmmlSM. Wnlle tne preptlriuion of the food occasionally mis5(."i the mark, the atmosphere provld· ed by lIS unl(IUe cotJntry senlng makes up the difference. ITA LIAN Romeo's 711'1 Avenue Sou,h oot~n 21St and 22nd StrCi!ts 252-4381 8e carclul descendinglhe steps 10 the basement of Romeo's. Once you are there, hO\oYever, the Romeo f.. mily will take care of you. Romeo's nas the real fccl of an It.,ltan cantln(l /lnd, after a glass of (hl.,nti and .,n appetizer, you will feel as If you are hardly in Birmingham at aU, Franco's 1318 20th SI'eel Soulh 933·3721 To have a good Italian meal sel'\Ul out· doors under the trees and slars, Franco's may be It. It could be the most charm· ing and frCCluently overlooked dining In BlrminHham, and It certainly makes up with atmosphere what It lacks In prelklril' tion. Rossi's 20th Street South 323·7111 or 2737 Hlgtr.v.rv 280 $Quth 879·2161 While Rossi's claimS to be an II.lllan restaurilnl, it is more like a Michael's thaI seJ'VCs some italian food. I1l1ccus Highway 280 South 991·2895 This Is the ne.vestltalian restaurant In town, and perhaps Ihe best. FERN BARS The follOWing eslablishments cater to the afler-work crowd in scarch of a (Iuick dinner, a slOYi beer and night Hfe In Birmingham.
196
Henderson Fine Arts 2015 Third Avenue North
Billy's 2012 Cahaba Ro.d English Village 879-2238 Closed Sunday
Village Framers 2000 Cahaba Road English Village
Wanda JU!le'S Dell ilnd Wine Shop 2031 Cahaba Road English Villilge 870-02S5 Closed Sunday Dugan's Comer of Highlartd Street 933·9020
A~nue
and 20th
Rube BurtO'NS Five Points South 20th Street 933·5570 Clyde Houstons Five Points South 251-0238 Hopper's Fi~ Points South 251·7243 Cab,lOa Cafe Brookwood Village 870-1390
Art Galleries There are a number of art galleries in the 8irmingham area; some are listed ~10Yi.
M;ml lyn Wilson Gallery 2010 Cahaba Road English Village 879-0582 Cobb Gallery One Cobb lane (ncar Five Points) little House 2915 Linden Homewood
A~lUt!
Antiques Also, there Me numerous places to look for antiques in Birmingham, found prinCipally In three areas: near Magnali.. Park-Five Points South, In Mountain 8rOOk Village aod In Homewood. FIVE POI NTS SOUTH Birmingham Antlque~ Mill! 2211 Magnolia Avenull 10: 30 ".m. to 5:30 p.m, Monday Ihrough Saturday I'lanna Antique Mllil 2200 Magnolia Avenue Tuesday through 5.:,tui'day 10 a.m. to S p.m, Magnolia AnllquCf 2237 Magnolia Avenue Pyburn's Antiques 912 22nd Street South HOM EWOOD Frankie Engel AntlquM 2949 181h Street Antiques South 1722 28th Avenue South Horse of 3 Different Color 1813 291h A."muc South Martin AfIIlques 1923 29th Avenue South MOUNTAI N BROOK King's House AnliquM 2418 Monlevallo Road Danae' liO!l 2701 Culver Road Edward's Galleries 61lA Church Street
• July 1988
About Members, Among Firms ABOUT MEMB ERS Tim W. Fleming announces Ihe rorn()Yal of his o(flce 10 p,o. Box 1459, Highway S9 North, Robertsdale, Ala· bama 36567, Phone (20S) 947·7922 .
•
w. Spencer Frawley announces the opening of hiS office 01 Suire 200,700
28th StrCCt, South, Birmingham, Ala· bama 35233. Phone (20S) 326-0960.
•
Ka thy lucile Marine ;mnounces the establishment of her office on Ihe Courthouse Squnre, P.O. Box 414, Car· rollton, .... labJma 35447. Phone (205)
367·8207,
•
Roland C. Gamble announces the rcmOVilI of his o(fice to P.O. Box 70,
AMONG FIRMS W. Terry Bullard announces that Faulkner E, Brod na ~ has joined him In the practice of law, with o((ices located at 108 East Main Street, Suite One, Houston Place, Dothan, Ala· bamil 36301. Phone (20S) 793·566S.
•
The firm of Corley, Moncus & Bynum, P.c. 3rlnounces the relOOltioo of its offices to 2100 SouthBridge P,uk· wi'fo(, Suite 650. Bimllngham, Alabama 35209. phone (205) B79-5959.
•
JohnSlOn, Hume &. Johnston an· nounces that Tracey l.F, Ben~ict has become ,ln associate with the Arm. Offices are IOCilted at 5 Dauphin Street, Suite 200, Mobile, Alabama 36602, Phone (205) 432·1811.
•
530 Park Road, Pleasant GfO'oIe, Ala· bama 35127'()()70. Phone (20S) 744-
5161, 744·5162.
•
Eugene W. Fuquay announces his recent retiremen t from the f(>dcml goyemment and the opt!nlng of his office al Suite 423, Fr.ank Nelson Building. 20S 20th Street, Birmingham, Ala-
bama 35203. Phone (205) 322·6692.
•
Charles H, Self, Jr., forme rl y Icgtal counsel ror the UniveJiity of Alabama system, orrice of counsel, announces that he has accepu..>d the position of assistant dlrC(tor of risk management and insurance at thc University of Alabama at Birmingham, I-lis new of· flce is located in the Byrd Building, Suite 410, UAS Station, Birmingham, Alabama 35294. Phone (205) 9345382.
•
Charles L Sparks announces the relocation of his offi<;es to 3000 Gal. leria Tawer, Suite 800, HOOYCr, Ala· bama 35244. Phone (20S) 985·)000.
The Alabama Lawyer
Patrick & wcy, P.C. announces that William Milrsn Acker, lII, has becOme associated with the firm . O(fices arc located lit 1201 Financia l Ccnter, Birm· ingham, Alilb..lma 35203. Phone (205) 323·5665.
•
Edward B. Parker, II, and Polul A . Br.l ntll-y anno unte the (ormation of Parker & Urolntlt..-y, with offices at 407 South McDonough Str(.'Ct, Montgom. ery, Alab..'1rl'la 36104. Phone (205) 2651500
•
Hamilton, Oulier, Riddick, Tarlton & Sulliv.ln, P,e, announces that Richard E, Corrigan has become as.sociated with the firm, with offices at Tenth Floor, First National Building, P.O. Ho~ 1743, Mobile, Alabama 36633. Phone (205) 432·7517.
•
Graydon l. NC!Wm~ n and Victor l , Miller, Ir., formerl y of Newman & M111er. PC and Rocco J. leo and Hordce V. O'Neal, Jr.. announce thc
(ormiltion of Newman, MUler, leo & O'Neal, P.c. Offices are IOColted at MC.ldow Brook Corporilte Pilrk, Suite 125, 1200 Corpofilte Drive, Birmingham, Alabama 35242 . Phone (205) 995·6111.
•
Oll ich & Bingham ilnnounces that William S. Wright and Susan B, Bevill havr:! be<:ome partners In the firm, Birmingham offices are 10000tcd at 600 North 1611'1 StrC()t and Financial Cen· ter. 505 North 20th Sl r~I, P.O. Box 306, Birmingham, Alabama 35201. Phone (205) 251-8100. Montgomery offices are at The Winter Building, 2 Dexter Avenue, p.o. 80x 78, Montgomery, Alabama 36101. Phone (205) 834· 6500.
•
The firm of Schod , Ogle & 8('nlon announces that It has changed Its name to 5(1'10('1, Ogle, Benton, Gen· tic & Centeno. The firm also ,m· nounces that Melinda l. Murphy, /ofJ'rwrly law c;:lerk to the HonOfilble George S. Wright, has become as~ clilled with the firm . Offices are 10C;:olted ill Third Floor Woltl$ Building, 2006 Third Avenue, North, Birmingham, Alabama 35203. Phone (205) 324-4893.
•
Hand, Arendall, BedRlle, Greaves & Johnston, 30th Floor; First Nillional Bank Building, Mobile, Alabama. iln· nou nces that Kelly O. R\....osc hilS become assodilled with the firm . Phone (205) 432·5511.
•
Rkhard e, Bentley, formerly of MOrIlSomt:ry, ill1nounces Ihilt he is associated with Rowland & Rowland, p.e., with ofnces located at the Cen· tury Building 312 Gay Street. S,W., Knoxville, Tennessee 37902. t)hQflc (6IS) 637-8210.
197
•
Briskm<ln & Binion, P,C. announCeS lhal Rich,ud E. Browning hilS be(Otrlc a member of the fi rm. The firm will
continue in the name of Br iskm<ln, Binion & Browning, P.e. Offices <Ire
located al 20S Church Street, P.O. Box 43, Mobile, Alabama 36601. Phone (20S) 433-7600.
• Thc firm of Waller, Lansden, DOrtch & Dllvl$ announct:$ Ihil! Joseph A. Woodruff has become assochl!ed wi th the firm . O((ices are located al 2100 Commerce Place, Nashille, Tennessee 37239, I>hone (6IS} 24"-6380) (lnu 809 South Main Street, Columb ia, Tennessee 38401, phone (615) 388-6031.
•
Shaw, Pill mM, Polls & Trowbridge
SUSi'ln E. Baker has become an associ· ate of the firm, with offices located at
307 RMdolph Aven ~, Hun tsville, Ala-
of Washington, D.C., ;mnO\lnI;CS Ihal W. Mike House, former ildminiSlr3tlve assistant to U,S. Senator 1'10Ne1l Hef-
b.,lmil 35801. Pho nE (20S} 533-4534.
li n, has become a f)<lrlncr with the
Beasley, Wi lS(l n, Aile n & M end~ l · sohn, p.e. an nounces the relocation of its offices to 10th Floor Bell Bulld11'1& 207 Montgomery Street, MOn!' gomery, A labama 36104. Phone (205) 269-2343.
• Slone, G ran ade, Crosby & tUack· burn, P.C. announces tha! b lon G. Rarnilrd hos become associllted wil h the firm, wilh offices at P.O. Dr<lwer 1509, Bay M inc1tC, Alabtlli la 36507.
Comparo I ~H low non-smokor IInnU81 rlltll$ lor nondec/easing g/ adod promtum III,·
" "" " "
.. .." eo
S2! G.OOO
$500,000
250.00 252.!0 255.00 330.00
U5 .GO
~ ' UO
5f2.50 810.00 1.355.00 2. 372.50
~&O.OO
' 85.00 515.00 780.00 1.015.00 1.520.00 20535.00 ~ . 38 5 .00
$1 .0001000 870.00 871.50 115.00 110.00 1.127.50 1.510.00 ue7.50 3.nG.00 USa.OO
tlmoll.,., rala, '1I I1Ittl~ hlgh, r)
ROnaw8blO 10 age 100. Femllie ralOS same at m.lo. tOIJr yellr' yOunge,. All coverage provided by companies ra led "A EMcolienl" by A M. BoSI Co. For , wrl ll.n quOtfttlon and poliC y delCrlption lend yOu' dato 01 blnh lind amoun t 01 COIIar,OO dill/eel to.
COOK & ASSOCIATES 2970 COTTAGE HILL ROAD ' SUtTE 201
MOBILE. ALABAMA 36606 (205) 478- 1737
198
firm. Gordon C. Marlin, former leg-
•
AFFORDABLE TERM LIFE INSURANCE FROM COOK & ASSOCIATES
MALI! AOn
•
Brinkley & Ford an nounces that
Islative (lSSistiUlt to Senator Heflin, has become associated with the firm. Of· fices tire located at 2300 N Strcct,
N.W., washington, DC 20037. Phone (202) 663·8000.
•
Th c fl nYl of Johnston, Darton, Proc· tor, 5wcd law & N aif announces that Jo hn O. 5i1,'( on, formerly spocial counsel, U.S. Sen;lIe Armed Services Commillee, has joined Ihl! firm a$ counsel. OffiCes lire located at 1100 p.uk place Tower, Uirminghilm, Alabama 35203. Phone (20s} 322-0616.•
LEGISLATIVE SUMMARY -AVAILABLEEach ye<lr, al the end of the Legislative session, the Legi slative Reference Servi ce compiles il sum mary of the general laws enacted and Con. stituti onal ;Jmendm en ts proposed . The Alabama Slate Bar has received permi ssion from Louis Greene, director of the Alabam<l Legislative Reference Servi ce, to make a copy of thi s summary avail able, w ithout charge, 10 each member o( the Alabama State Bar w ho requests one. For a comp limentary copy, conlac! Ali ce Jo Hendrix, Alab<lma Siale Bar, P.O. Box 671 , Montgomery, A L 36 10 1.
luly 1988
Riding the Circuits Houston Count y Bar Association Recently, the aS5QCi<ltion adopted the (oJlO'W ing Code of Professional Courtesy and Responsibi lity. For more Informat ion, coowel Huey Mclnish in Dothan.
Houston County Bar Associatio n Code of Professional Courtesy
and Responsibility As 11 member of the l-touSlon COurl· ty Bar Association, I ho ld th ese truths
10 be evidence cJ my conduct as a lawyer and my respect for the law: 1. I adhere to Ihc rulc of the taw to govcrn my (>n tiro conduct and I acknowledge thaI the law is ,ll)ovc
me.
2. Rcpresenllng my client In " prCt(essl0I1(11 fI"Iilnner Is my first
Obligation. l. I will familiarize myself with the Rult.'S of Profcsslonal Conduct and will ob~rvc sa me in my daily prilctlcl'l,
4. I will conduct myself as 11 lady or
gentleman and live my personal and I)rof~slonallife by Ihe Gold· en IMe 10 do unlO olhers as I would want Ihem lodo unlo me, 5, I will be honest wilh myself.
6, PrOlcllcing law is an ongoing, hI' leliCClu.:.1 pursuit In which I In· tend 10 adv.ance ill every oppor· tunity. 'l. My word is I1'Iy bond.
6. Although the law, thc American
ty whi ch may be considered as
Bilr Association and the Slill e of Alilbamil Bar Associat ion recog' nlze the legality of public adVC!rlIslng, I will refr~in from placing advmtiscments in the newspaper, radio and tC!levlslon media, deeming same to be contrary to the I>roiessionalhm I auach 10 lhe praC;Iice of law.
solicitation, same being not only
9. Whcn cilch <ldwrs.1ry procct'ding ends, I will shake hilnds with my fellaw lawyer who 15 I1'Iy <ldVC!rsary; and if I lose, I will refrain from unnecessary conder'MOllioo of lhe Court, my adVCrs<lry, or his client, 10. I recognize that procedural rules ilre necesS<.l ry as II last resort to order and df..'(or,lm, therefore, if my advertary is ,<ntilled 10 something. It should be provided without nlotions, briefs, hearings. orders and other formaUtles. If someth ing is a faCl, It should be stipulMcd in writing with out requests for admission, Interrogatories, witnesses and documents. Vigorous advocacy Is not inconsistent with prof6slonal courtesy. I will stay alxM! Ihe belt. EYQn though antagonism may be exI:>cctcd by client s. It Is not part of my duty to my dent. A lawyer Is nol cillh..'d (or licensed) to be obnoxious. 11. I will not solicit clients or leg<Il business or engilge in any aClivi-
uneThical, contrary to the Codc of Professlon,,1 Elhlcs, but is also unprofessional.
12, Ordinarily, I will not noTice a deposition until all eUorl has been made 10 sct II IY,t ag/C!emcnt. 13, I recognize Ihal adversaries should COI\rrnunicille to /lVOld lit· Ig1llion and remember thoir obligation to be courtl'OU S to each other. 14. I will stri ve to lake and return
lawyers' telephone caUs as soon as poSSible, and when a C<lll 15 placed by or for me, I will be on the telepholll} whon the lawyer onswers.
IS. I recognize Ihat advocaey does no! include harassment. 16. I rccognize that advocacy docs not include needless delay. 17. I will be ever mindfu l tim! i11l)' mOl ion, trial, court appearance, depoSition , ple<lding or legal tcchnlcali ty costs someone time and mOney.
18. r believe Ihat orlly attornf..,.,., and not sccretOlfics, paralegals, inYQr Ilgators or olher non.lawyers, should communiclIIe with a Judge or armear before the Judgc on Su bsla nfi~ milllers. These non· lawyers should not place Ihemselves Inside the 8ar In the
last date to get changes in this year's bar directory is August 15, 1988 The Alabama La .... yer
199
Courtroom unless permi ssion to do SO is Hranted by the ludHe then pmsldlrl g. 19. I will Stand to address th c Court, be courlCOLlS and not arguC! with the Court but may, when request· ed [liid permi ssion gral1ted by the Court, state my position 10 Ihe Court.
20. I have the responsibility to advise my client aPI>c;uing in the Court· room of the kind of behavior ex· pected of him ILe" no chewing Hum. no 5vnHlasses, IJrOI)er attire, CIC.). 21. During any Couri prOcet..oding, whether in the Courtroom or Chambers, I will dress In a coat and tie to show my respect for the Court and the law.
22.1 will always be punctual, or sufficiently in advance of the ap. JXIinu,.od timt'!, SrJ that prC!liminary matters may be disposed of In or· def to SIMI the meeting. trial, hearing or conference on time.
2J. IleC08ni7,0 thm
tI Itlwyer 5hould not become too closely assocIated with his cli ent's activltle$, or emotionally involved with hi s client.
24. I ilm thilnkful lor the "bllily ilnd my opportunity to be a law'y'(!r. 25. I appreciate the respect, trU SI ~nd friend ship whi ch other lilw~rs have given me, <lnd I will act al all times 10 prescrve thc mutual fcellng of cil1'I11\IJdc rie amoll8 lawycrs whi ch C)Ci sts in this Bar,
be(:ause without it my clients ;lnd I suffer. ADOPTED MARCH 30, 1966
TaJladega
County Bar Association At ;I recent meeting, the Talladega County Bar Association elected officers (or 1988·89. The officers elected were: President: Edwh B. Living. ston, SyliltilllHiI Vlce-presidem: Huel M. Lme, Sr., T,1l1adega Secretaryl trea surer: R. Blake lazenby, T,111 ade8t1 Bilr associ,lIion pl ;ln~ for the year in. r.;Iuded p<lrticip!ltion with Tilliauega College in celebrntion of Law Day 1988 during the 1;'Ilter parI of April <lnd the first part of May arId The Peoples' L1W School to be held in the f~1I of 1988.•
Estate Planning Newsletter Available A free publication on estate plan ning is avail· ;;Ible from the American In stitute for Cancer Re arch. The quarterly newsletter, Estate Planner, is designed for probate and trust attorneys, bank trust officers and others involved in estate planning. Offered free with each issue are detailed booklets Ihal focus on planning and drafting particular types of estate planning vehicles. To su bscribe, write to Kathryn Ward, vice presiden t, Ameri can Instit ute for Ca ncer Research, 1759 R Street, NW., Washington, D.C. 20009. Pl ease Indicate that you read abou t the Estate Planner in The A/ab<Jmil
Lawyer.
'00
lull' 1988
Bar Briefs Acting UA law dean named to direct school
Hansford
The Alabama Lawyer
Nathaniel Hansford was nllmcd delln of the University of Alabama School of lilW, UA president Dr.loab I.. Thomas an· nounced in April. Hansford, the Williom Alfred Rose Professor of law, has served as acting dean of Ihe school since May 1967, Dr. Roger Sayers, UA academic vice president, said I'lansford was selected after a national ~arch. Hilnsford Joined Ihe UA faculty in 1975. He seMod as vice dean or associate dean from 1982-86 Md was named 10 the RO!J(! Professorship In 1987. I'le is the author of a book, ''11111.'.,..5 Alab.... ma Equity;' (se<ond edition), and numerous law review and bm Journal ilrtlcles, "UCC Transactions Guide," a multl.-.ol· umc treati!J(! he cOoauthomd, will be published this summer, A 1966 graduate ci the University of Georgia School of I.<M~ Hansford earned an LL.M. degree at Ihe University of Michigan In 1980. He rcceived the Outst(lrldlng COll1 milm~ntlo Teilchlng Award I:llven by the UA National Alumni Association in 1982, FollowlnSl:lfJduation from law school, Hansford clerked fOf Judge Le-.vls R. Morgan of the U.S. Court of Apl>eals for the Fifth CIrcuit. He served in the Judge Advoc;.lte General Corps as a captain In the
Army from 1970-73 and was associated with Ihe Dalton, Georgia, law firm of Mitchell, Mitchell, Coppedge and Borell from 1973-75.
Fellows elected to American College of Probale Counsel John A. W,lllace, of .... Ianta, Ceorgi;i, immediate past president of The Ameri· can CoUege of Prob....te Counsel, announced Ihat L. U~ter HIli, of Capell, Howard, Knilbe & Cobbs. P.A" of Montgomery, and William L. Hinds. Jr" or Bradlf!y, Aranl, Rose & White of Birmingham, h<l\l(! be@n <!Iectcd fuUQ'NS of Ihe college. Their electlons took place durIng a recen t meeting of the OOiHd of regents of the coliege In Mnrco Island, FIQrid". The American College of Prob..lte Counsel is an International association of lawyers who h<l\l(! been rtCogI'Iil!:ed <'IS outstanding pf"iictitioners In the laVt'S of wills, trusts, estate planning and estate administration, The College aCIi'.>ely pursues impf'OY(!ments In the administr.Jtion in tax and judldal systems In these areas of law, In addition to providing programs of continuing lel:l1l1 cduca tlor\ fOr its (eIlOW5.
Membership in the College, which Is il POSI of honor conferred bv the peers or the newly-elected fellow, i5 by invitil• tlon of thc board of fCscnlS.
20 1
ACurrent Overview of Alabama's
Mechanic's and Materialman's ..
,
...
t-l You O'lER rOiHEMt\ERE~ A LIEN you~
ON ,
202
f~~~
luly 1988
and purchasers are Interested In maintaining or Obtaining clear title, free (rom the encumbrance of lhese liens. A signifi. cant body of case law hilS dl"o'l,llope(! out of the b;111ling of th~e various interests. Unccrt;linlies in theslillulory provisions
Lien Law by I. Lister Hubbard
I. Introduction Much has been wrillen about Alabama's mechanic's and materialman's lien law, and (or good rca son. COntractors, subCOnll'3Clors and others who perform in connection with th e improve· ment of fcal property ,HC i'lcutely Inter·
which cmate these liens also have proYided a ferl ile field for Judicial construction, as well as iI minefield (or the practiUoner. Sec, e.s., Crane Co. Y. Sheraton Aparlmen/.5, 257 Ala. 332, 58 So.2d 614 (1952). This article Cilnnot begin to cover fully the existing body of case law Inwrprot. Ing thcse statUlOry proYlslons. Rilthef, It will attempt to provide a thumbnail sketch of the Significant elements and current Issues In three bro.1d ilreas: (1) cliliming and pcrfecllng mechanics' liens, (2) priorities .lnd (3) transferring liens to substitute security.
ested In se<:uring 1"1)'mcnt (or tilelr work. Construction lenders likewise are inter-
II . Claiming ,lnd perfecting mechanics' liens
ested In securing repayment of IOilns
A. Nature of lien Mechanics' and materialmen's liens ("mechanics' Uens'1 are purely statutory c:rei1 t ion~, unknown under the common law. CcnQra11 y, such a lien is a lI!."!n on realty In fayor of those who furn ish labor or materials in connection with ImproYements to (I"al propeny. See Emanuel v. Underwood Coal & Supply Co., 244 Ala. 436, 14 So.2d 151 (1943). Being purely a creation 01 sta tute, such a lien can be cstablishQ(i only through wlct adherence 10 the stil!utory requirements found at sectiOns 35·11-210 through 35-11-234, Alab.lma Code. See 1-1.1((ford Accidcm and Indemnity Co. v. ~ merican Coun/ry Club~, Inc., 353 So.2d 1147 (Ala. 1977); first Colored Cumberland Presbytflr;ilO
which enable construction of these 1m· plQYCmenl5 and, more particularly, in maintaining Ihe priority of thdr mort·
gages over these liens. Property OW llCrs
Church v. w.o. \<\bod Lumber Co., 205 Ala. 442, 88 50,4)) (192U. Mechanics' liens are inchootl", I.e., subject to being 10S1 if not perfected accordIng to Sl:rtutc. E~ pMte Dovth il, 480 Sc.2d 547, 555 (Ala. 1985). Consequently. the 1>r.letW orler, whether representing a client perfecting ,1 lien or a ellen! delending a lien, should be thoroughly (amll iar with the st,ltutOry pl'Q\lisions and [heir construction by the courts.
8. types of liens There arc essentially two types of liens under the statutory scheme. First, there Is an "urlp.lid balance" lien as provided in the nrst sentence of S3S-11·21O [emphasis added), lo-wi!: "E-..cry m«hanic. person firm or corporilll00 wh-o ~hilU do or perform any work. or labor upon, Or fum lsh any m:IICfi~1. (j~turc, enlllne, boiler ur machinery lor ,rny building or Improvement oro larl(!, Ot for rfl)'ltrlng. allerlllll Or beautifying the ~nl(', under or by virtue 01 any cootr.u:;t wit! the owner or 1>fOl)fietor the~, or h t~ agem, ar_ chllee1. In.r~ree, conttilctor or subcootractor, upon comptylng with the pmYlsiMS of this divisloo, shalt ha-.oe a tlcn lhrrcfor on Such building or Impr(1.lC!I1em~ and on rhe tarid o~ which the SMIC 15 siwared ... ; or, if empIO)lt'i!~ of tiw comr;)ctor or pellOM furnlshmg roorerl.llto him. the Iren ~hdll eWIend only to the ollllOUn/ of anyunpilid bal· ~n(C dtH! t~ cootraclO' by the own(Of . . . . .
tn Crane, the Cou rt exl)anded the ap. I>!kabili ty of "unpilid balance" liens beyond the literal language o( the statute to cover laborers arid materialmen of a subcontractor as well. Second, there i~ 11 ~(ull prle"," lien in favor of those with 11 dir('Ct con tr,lCt with
J. Lis{Cr Hubbard, a parrner in rhe Monr80mery firm 01 Capell, HCMlard, Knab(' 8. Cobbs, P.A. , rccelwd his unckrsrdduarc degree, masna cum laude, (rom Ihc Unlvcrslly of eeo'yia and his law desree from Ihe Unlvcrsity of Alabama School of 1A,v, /-Ie Is a nlenlber of Ihe Aial).lmll Slale Bar forum on the COM lruetlon Industry ilnd Ihe Alitbi!m/l SIMe Bar S(!Clion on Public Contracl Lal\!'
TII<., Alabama (.:lIvyer
203
Inc owner and, as prOvidC!d by InC second sentence of the slatute, In fiJllOr of a materialman giving advance notice to InC owner prior 10 tne furni sning of materials, to-wil: "6ut I( the pel'S4ln. firm or corporation. before (umlshins any ",aterlal, 5hall notify tM Owner or h i~ agent In writing that such celtili!' ~Hled ma1(!rial will be (umishcd !1( him to the contractor or subcontractor for use In the building or improvemer'lls on the land of the owner or proprietor at certlln specified prices, urllcs§ Ihc owner Or I)roprietor or hiS ilscnt oblect5 tllereto. the (vrnbherol such material shall hlMi a IkTi for tile (ull price thereo!' .... " Strangely enoug!>, the stntvte appears to make the "full price" lien by advance nOlice available only 10 a materialman, as oppost!d to those supplying labor and services. 5('(1 Crane, m 616. A "full price~ lien sl8nlflcantly Incl'Cases the rights of the lienor Jlld, potentially, the Sill.' d his encumbrance on the property. Such a lien Is ba5ed eitner on a direct contract wjth the owner, or a COnstructl\4! contracl crC<lted by tne SIJlutc. When Ihe mated·
alman prq,lides the adv.lflce notice required and Ine owncr faits to notify tne materialman thaI he will not be respon. sible for thc price of the m<lterial. a conS1ructive contract arises belween tnc malerla lman ilnd the owner, obll8atlng the owner for the full price of the materials sUI)plicd. Furthermore, the lien on Ine I)ropeny may be pursued 10 its fult amount and. apparco'ly, wi tn some kind of priority over ~unpa d b.llance" lienors (sec Prlorilies section below). By conlrilst, (In '\Hlp<1id balance" lien, which Is the only lien nV<lllable where the timll hns lapsed lor 81vlnH advance nolice lind wh~ the lienor has no direct contract wi th Ihe ooner, "shall eKteod only to tne amount of tiny unpaid balM ce due the contraelCr by the owncr or proprietor , •.• ~ §35-1 1·21Q. Thus, whet(' there Is no unpilid bi! anea due the con· tractor, no lien may b~ established. Sec Abell·1 lowe Co. v. /ndusullll Developmcfll Bd. of/ronda Ie, 392 So.2d 221 (Ala.
Civ. App. 1980). C. StC1IS to perfection All potential lienor;, with the ('Keep. tlon of an "Original con tractor:' must
REMINGTON Private Placement.
Tt'rm Debt Fln~ndn 8
Project Andy,l. Acqul.ltlon Fln~ncln8
Oebt RetlrncCure But lneu Valu<lllonJ
Lana E. Setters C. Ruffner Page, Jr.
The Re mington Fund, Inc. Ve nlure Cilpitil l Nallonal Bank olCommcR:c Duilding l'usl Office Box 106861 Birmingham, Atabama3S202 1Telephone(:105)324-7709
204
fulnn Ihree basic prerequisite sleps to peO(!(ting his l ien: pro.·ide stoltutOry notice to the owner. me a verUlcd sta tement of lien In th e probate orne'! of the county where the improvement is located and file suil to enforce tile Ben.' Harper v. I &. C rruckins & EKcavatin8 Co.. 374 So.2d a8b (Ala_ Gv. App. 1978), cerro dismissed, 374 So.2d 893 (Ala, 1979). An Horlglnal con tracto( who is a~ solved only from the notice requirement (sec §35·11·2 16), is one wi th a direct contract with the owner and mily I.....-en be a materialman. Sec, c.S., wallouma DrUB CO. V. Kirkp.llfld: Sand & Ccmcnt Co., 187 Ala. 318, 6S So. 825 (t91 4). The lien will be lost If c-ach of Ihe three steps is nOl carc-fu tt y and properly taken. See, e.Il., Security Tr.mspottiJlloos, Inc. v. Nelson EKclIV.llinS lind P.II/ing Co., 55 "Ia. App. 223, 31 4 So.2d 297, eM . dunled, 294 Alii. 766, 314 So.2d 304 (1975); WI' rlil88 IJIdg. Supply, Co. v.I.M. Medlin & Co" 265 Alii. 402, 232 So.2d 643 (1970); /-lome fed. Sail. & Loon Ass'n. v. \fLIil/iams, 276 Ala. 37, 158 So.2d 676 (963). 1. Notice
a. Full price lien SceJ10n 35·11·210 sets oUllhe nOtice requirements (or a futl price lien. IJy its terms, this section requires written noliee to tne owner {hilt "such certain, ~;(;ed material will be furnished by him llhe materialman) to the contractor or subContractor for usc In the building or im. provements on Ihe land of the owner or proprieto r at cert {l ln specified pr;ces . ... " lemphasis addl.."'<l]. NeverIheleo;s. at the end 01 this sc<:tlon. It is provided that "such notice miY be given in the following form, whlen shilll be suffl· cient": To owner or proprietor. T'!ke Notice that the vndct'5lgned Is about to fu.nish , your cootla ctor or $uI)cOntractor. certain matedat fO I the construction, or /or the .epalrlnJJ, ~ltering o. bcilutr/ylns of a burlding or buildings. or Impn::M!mellf~ on tile Iollowlng described Propc!rty: and them will OOcome due to tile vnderslgnl..'d on ~ceount tllcreof the pdct! of said mJtcriJI. lor the I)lrymcrII 01 which the undc!')isned will cI~lm a lien.
Ala. Code §3S.11·21O (1975). As Is appat('nt. the sta tutory form does not SCt lorth "speclfiC!d ma terial~ ill ~Sl>cclfled prices.~ The diKrepanCy has luly 1988
been noted by lhe Alabama Supr@me
Courl. Avondale /J.Jmber Co. v. Hudson, 214 Ala. 128, 106 So. 803, 80 4 (19261. Un(ort urlalely, in Ihe rare instances wh ere Ihe Alabam" Supreme Cou'" ha ~ analY7.ed illld applied the advance nOlice requlremenl, il has not resolvl!d Ihe discrepancy.' St.'CIion 3S·II·210 does not specify how much advance notice Is re<lulrcd to establish a " full price" lien . Presumably, sufficient notfc@musT beBivcn 10 provide the owner rcasollable opportunity to object "before the nlillerlal Is used." The owncr should be wary o( such ..dVilnce notkes and, upon receipt of such a notice, Immediately should nOlify the furnisher in writing before the matcrials are used "Ihilt he will not be responsible for the price thereof." §3S·11·2 10. Failure to do so will create ,I COn trdCI between the furnisher and owner by Imllllcation, which not only increases the potenlial anlOunt of Ihe encumbr'!nce but allows thc lienor 10 take a judgment in pcr· sollam againsl Ihe owner. See Buettncr Bros, v. Goodhope Missionilry B,lpti5t Church, 245 A a. 553, 18 5o.2d 7S (19441; Avondale lumber Co. v, /-Iuc/son, 214 Ala. 128, 106 50. 803, 804 (19261; Morris v. Bessemer lum/)crCo., 217 Ala. 441, 116 So. S28 (1928).
2. Verlficd , tatement of lien a. Form A statutory form for a verified statement of lien, which has been deemed sufficienl, Is set forth In section 35·11·213, AI/lIJ,lma Code. Spc<:lal attention shOuld be paid to the property description required In Ihe statement. Generally. the statute requircs Ihat the description be ~in such a mallner lhat same [the proper. tyl may be located oridcntlficd .... Hid. With regard to any par1icufar situaTion, th e l)f.lctitioner Is Jeiylscd 10 (onS\l lt
§35·11·213 and Ihe interprellng case law closely to determine wh al is s\lfflcient.J As discussed below, the extent altne property encumbered is affcctL>d by the loca· tion or naMe of the property.· I. City or lown When the building or Impl'O\Iefficnl on which the lien is claimed Is located in a city or town, Ihe lien (').Iends to all of the right, litle and Interest of the owner to the building or Imprownlent and the 1'!IId on which it Is sllu;lIed and " 10 the ex tent in area of Ihe erlllre lot or
b. U npaid bal.ance lien As it practical matter, "(ull price" lien notkes arc seldOm given. AI th e beginnins of a project, m1l1crl!llmen Me nol ilt· tuned to collecti on dlfflcultlcs and, even if thl..')' were, Me reluctan t 10 alienate the contractor or Ihe owner with legalistic notices. Even though the lime may have p;lssed to provide the adVilnce notice of a "full l)riCc" 11I.'f'I, the potential lienor may prov ide written nOtice to eslablish (111 " unl),'lld balance" lien as provided in §J5·11·2 18. The only timing provision for such nOlice is thac It be glYC" before Ihe riling of a verified sta tement of lien, the second step for ien perfection as discussed below. Once Ihe notice Is given, any unpaid balance in the hands of the ()'Nner Is hcld subJcct 10 such a lien. §35·11·2 18. With this notice In hand, the owner then C.ln t,l ke al)l)ropriate action In the disbursement of remaining con· tract monies 10 Ihe gener,ll con tractor to insure that thc poten tial licnors are satisfied and the property is not en· cumbered. The AI/lbllm/l L/lwyer
205
l)(Ircel oIli'lfld in it city or 10000n •••. " §J5-11·210. Where multiple buildings an<Vor lOIS Or P<lrc<!ls arC Involved, the lien may attach 10 all of Ihe Iml)fOVemenlS toge ther with Ihe lands upon which they are situated, Ala. Code §35-11·2 17 (1 97S). while old/Jr Alabama cases appeared to require the maletia!· man to seg~le the m,1l(lfials according to the building before he flied his stiltt!ment of lien, ($l'C, <!.g" Rlchdfdson Lumber Co, v, Howcll, 219 Ala, 328, 122 So. 343 [1 929)), curren t authorilY allOW$ a statement merely to claim a lien "separately, severillly, and jointly" as 10 Ihe specified l)arcel~ of land and Ihc speci· fled bufldings and Improvements, o'Crady 1'. Bird, 411 So.2d 97 (Ala. 1981). The proper aliocOillon for each Improvement woul d be determined later by Ihe COurt. Ici. ii, Not in cil y or l own Where the lienor seeks to attach property not located in a ci ty Or lown, the lien ex tendS nol only 10 the bulldirlg or imprOW!ments and thc land on which such Is situated, but also to "one acre in addition to the lalld upon which the building or Improvement Is ~itual' ed .... " AI". Code §35-11.210 (1975). Section )5·1 1·2 17 requires the additional one acre 10 be sel<.ocled from "land surrounding thc said building or Improvement and con tiguous rh('rero," The seleclion must be made prior 10 the filing of the I'Crlfled statement of lien, Id, Where the clalmon t dO€s not havc and c.1nnot reasonably obtain an accura te description of the one acre, his verified statement eli Ii(>n m.1} desc:ribc the building ,mel then claim "one acre of land sur. rounding M el contiguous" to the building, O'Crady 1', Bird, 41 1 So,2d 97 (Ala. 1981). (app.l rently OYerruling a more constrictll'C read ing of the stillutory descri,. _ tlon requirements in Fowler v. Macken· fepe, 233 Ala. 458, 172 So, 266 (1937)). In the enwing action to e!'l force the lien, the court should be l>Ctftioned to order il SUI'Vl.')'Or to determine ,1n accur"te de)cflptlon of the one acre. Id, b. Wh ere to fil e The verified statement of lien must be filed In the office of the judge of proba te of the county where the subject proper· Iy Is locat(.'d. Ala. Code §3S-ll·213 (1975), When Ihe property Is loca ted In more than one county, the statement must be filed In each county where so IOCClCcd,
206
c. When 10 file Different time periods are I)tescribed by stiJtule for the filing 01 the verified statement of lien, depending upon the status of the poten tial lieMr. AlII. Code §35-11.215 (1975). Laborers must file the stateillent within 30 days, original can· traclors must file wi tl-in six months and cvef)' other daimant muSt file within foor months "fter the last ilem of work or m(lterial has been pelformed or furnish· ed. Id. A "fu ll'price" llellor Is considered iln Ori ginal conl ractor w lthl n this st.'<:tion ancl, thus, has silc nonths to file his verified statement of lien. Sourhern Sash o( Hunuv/lle, Inc. 1'. lColn, 285 Ala, 705, 235 So.2d 642 (1970:. 3, Suit 10 enforce lien a. Where to fi le The third and fi nal step Is to file suit In the circuit court (or clistrlct cour t wll(ln the amoun t is $50 or less) of the county where the prollCrty is oc.,tOO, Ala, Code, § 35·11·220 (1975), If the subject proper· ty is loca ted in lWO or more counties, SC'polrate aCl lons mUM be brought in each of the involved counlies, United Supply Co. v, Himon Con51ruction and D(!oJClopmem, Inc., 396 5o,2d 1047 (Ala, 1981). b. wh en to fil e> The action must be commenced "within six mO!'lths aiter the maturity of the enlire Indebtedness secured" by the lien. Ala, Code, §35·11·221 (197S). ThiS has been cons trued to mean the point in time when the debt i ~co n lr;lctually due and 1J..1Y.1!)le to the lienor. I'/omt' ('Cd. Still. & 1.o.1n Ass'n. 1'. Williams, 276 Ala, 37, 158 So.2d 678 {1963:, Express conHact provisions specl(ylng such a due dale will control. Sherrod 1'. Crane Co., 236 Ala, 34 4, 182 So. 48 (1938). If no ~prMS contractual provisions are available, oth('r evidence such as invoice dates, statements and correspondence w ill be considert'd. II ;r l)r>(>a~ the COurts will assume thill the Indebtedness matured on the date of the last Jabor l)Crformed or ICiSI materials furnished unless it is shown that <In agreement e>cislcd for the debt to mature at a different " me. Sec Yeager 1'. Coos/,ll Millwork, Inc., 510 So.2d 188 (Ala. 19B7); Garrison 'f. H.1Ivklns Lumber Co" 11 1 Ala, 308, 20 So, 427 (1896). c. Necessary parties Secllon 35·11-223, Alc1IJiJm.1 Code, pr0vides thai, In aCl ions 10 enforce a lien, "all persons interested in the mailer in contrOYersy, or in Ihl1 prOJ}C'rty charged
wilh the lien, may be made parties; but such as arc not made p.1rties shall nOI be bound by Ihe judgment or proceedings therein:' In other words. If the lien claimant Intends to t!stabllsh a priority OW!r another I)ilrty interested In the prope rt y, such <IS a mortgagee, then rhat other person should be made a party to bind it to lhe Judgment, Sec Sl<lrck If, TKW, Inc., 410 So,2d 35 (Ala. 1982); lily Flags Bldg. Supply Co. 1', I,M, Medlin & Co., 285 Ala. 402, 232 So.2d 6 43 (19701. Tht! oymer or proprietor of thl! subject property Is a neceSSMy party 10 a suit to foreclose on th(' property In sa tisfaclion of the lien.' Sl'C Starck; Lily Flag, Furthermore, where the lien cI.1imant seeks to eslilblish an "unpaid b..llance" lien, the general contrador Is a necessary pilrty. See Williams v. Pyramid /fiNefopmefll Co., 289 Ala. 473, 268 SO.2d 752 (1 9721,
d, WJiver or release defense
To es tablish waiver or release Of a li~n claim, the oefending llarty must show that the lien claimant "knowingly sur· rendered or waived" its righ t to the lien. Nolancl Co. 1'. Southern Development Co., 445 5o.2d 266, 270 (Ala, 198 4}. Further, "all IIgreelllell t by a person ('nritled 10 a lien that he will look exclUSively to the con tractor Of' some person ot h~ th<ln the OWner for the payment of this claim may be a waiver of his rish t to a lien." Id. A Pl'QVision in a contract between the ()Y,'ner and the gen('ral con tractor wah.. ingllll liens Is nOt binding on the laboref5 lind materia lmen of the general contractor unlMS they have actual notiCf;l Ihell..'Qf when they furnish I"bor or material. 8.1ker 5<Jnd & Cral'Cl Co. 1'. Rogcts Plumbing & Hei1lrng Co., 228 Ala. 612, 154 So. 59 t {I934}. By StatUle, the general contraclor may fOrf('i t his right to a lien by failing to provide the owner certain Information or lists 11 5 to materia lmen and laborers on the project or fal!lng to pay such parties ~in accordance with allY special contract made with the own· er, , , , " Ala. Code §)5·11·291 (l975).
III. Priorities A. Prior or subsequent morl,,"gC1 A m<.ochanlc's lien attaches, for pur-
poses of establlshhlg priority over other lI('n~,
nlortgages or encumbrances, ilt the time 01 "the commencement of work on the building or improvement .... " Ala. Code §35·1I·211 \19751. "Commence-
July 1988
men! of the work" has been interpreted to meiln the lime thtl! the materi;!1 for which a lien is sought Is Incorporated in. to tnc building or imp~nt or at least furnished therefor at the conS1luction site. G..lmbles, Inc. v. K,ln5<l5 City TIlle In$Ufilnce Co., 283 Ala. 409, 217 So.2d 923 {1969J. By stJtute, It is prO'o'ided thaI, "(slueh tien as to the IJnd and buildings or Improvements thereon, shall hilYe priority I.l'Y'er all other liens, nlortgages, or Incumbrances [sicl created subsequent 10 the commencem ent of work on the bulld lngorlmpr()\ll:!ment . , , , "Ala. Code §35·1I·2 11 (1975). (emphasis add· edJ. Consequently, cilrl,lful consnuction lendl,lrs should insure that no materials are furnished ;md no WOrk Is performed I)rior to the execution of the construai!)n loan mortgagl;'. tt Is the prior execution of the mortgage, and not its recording, whi ch estJblishcs the priority of the mortgage over mechanics' liens. Kilgore I larc/wilre & BldB, Sup,)Iy, Inc. v. Mul/rn~, 387 So.2d 834 IAla, 1980). Ala. Code §35-11-2 11 (1975) If a potenti al ConStru ction lender determines tha t work has al· ready commenced bt..fore It can obtain execution of the nlOl'1gage, it typlcOllly r~ quires wrillen subordination of all lien rights signed b't' all who have furnished labor 01 materials UI) to Ihm polnl. Failure to ohlOlln such suoordlnation IlgrL"Cments will reSul t in those mechanics and materialmen obtaining a lien with priority over the mortgage. Prior to 1933, with regiHd only to the building or ImprOYCmenl, a mechanic's lien maintJined I)riori ty categorically over prror mOftg,lges and other encumbrances. Consequently, there was little the conStruCtion lender could do to proteet its security l'ltercst in the ImprOVi.:men!. However, a 1933 amendment to the IllcchOlnlc's lien Ijlw (embodied In ~'Ct ion 35-11·211, Al.'lbama Coe/e), as first constrlK!d In Empire Nome /.o.Jns, Inc. v. We. Bradley, Co., 286 Ala. 449, 241 5o.2d 317 (1970), essentially reversed lhiS stolte of affairs to the benefit of COrbtruclion lenders and other mortgagees.. The relevant language of the .lmendment prO'o'idcs: ~ ... ilnd ilS 10 liens. rllor tgagc~, Of en(umbr~nces crc~lcd prior to the com· nll!ncement ol the woO;, the lien for such ....,ork sha I hnvoe tlllOrily only aBllt"St the building or imllrQVCllIent, the pro(/uCt of Jvch wark which Is an entrrely, JI!PJrJl)/i! from the Idnet
buil(/ing (J( implOVffilf.'nt \ubJccI d thl! prior lien, morltl'l8~, or encumbr,1nce, and ....hrch he I'I"movcd therefrom ....,/hout Imp_""ng!he v;r/ue or )('Curi· Iy of lIny prior lien. mOttBaBf.', or (,n.
"In
cum/J/,lnce , .. ,
H
A/it. Code §35-11-2 11. [cmphasis added]. This language was construed by the Empire court as iI qU<lllf cation of IImitalion of the priority of mechanics' liens (Ncr prior, existing mortg.1!!(.'5. Specificallv, the I)riority exists only where the Impr()\.'(!o ment is "separJble" from the building and where It can be rcm~ " without lmP<'liring the value of security" of the prior mortg.lge. As noted In Empire, ''While under the 1933 amendment th e mJtcrlalrnell'$ lind m ~'C haniC5' lien Is yet given priority on the building. such pr!. orily may Indeed be evanescent If the building cannot Ix! ~epilra te<l from the land withoullmpJlrlns Ihe val ue or securily of the prior morl8'lge, for in such situmlons the mort g,lSe ret.llns ib priority:' Id. jll 321. Typically, construction lenders obtain mortg.l ges based upon a Itl/ge percentolge of the Vollue 01 the conWuction when coml>!ete<l; therefore, remOV{l1 and Sol ie of th e Improvement indeed would impair t~e total vilille 01 the mortg.lge. See Over/)cad Door Co. v, F;rSt Noll. Bank of Tusb/OOSCI, 365 So.2d 70 (Ala. Civ. App.J cerr. dClllcd, 365 So.2d 70 (A la. 1976J. (Removal of doors would imp.lir St.'Curit} o/the IXInk's prior mortgJge, (M!n thollSh the value of the l)rQ~rt y wi th doors ICmoved would be $462,000, the balance duC! on debt to !Mnk was $393,740 and doors could hiM! been replilced for only $12,800.) C)early, a cautious cO,lstruction lender has the ul)per hand under the currt!nt law, leolVlng the mechanic's lienor, In most cascs, holding allen of questlonJ' ble value.
8, Subsequent purchasers A mech<lnic's lien has no priority OYer I)Urcllaser of the sublCCl property if il Is purehilsl.'Cl wi th out notice, aewill or constructive. See EI( parte Dou/hit, 480 Sc,2d 547. 552 tAla. t985). (lntercstlngIy, in this case II mortg.lgee tried to "pI8gyb;!ck" on the right!. ollts mortgOlgor, an Innocent purchaser for value wl lhout notice of the lien, but W<lS r\'j(.'Cted by the Coul'1 on the basis of the mortg.lgt! priority proviSion Qf Section 35·11·211.) A purchaser obtains clear a'ld frcc title to Ihe property If the pureha!iC is mJde wrthout
.1
actual or COrl structlvc knowledge of an debt 10 the lienor and prior to the filing of the lien. I-lOWlM!r, this general rule only applies to existing buildings, An exception has been carved out for purchasers of new buildrngs. Sec Sfarek v. TKW, Inc., 410 So.2d 35 IAla. 1962). For new buildings, a mechanic's lien prol>crly flied within the prescribed S!i'ltutory sll(·month period has priority OYer a pur(ha5el' even though the lIen had nO!: been filed prior /0 the purchiJ$e. In short, the "[p]urch1lser of 11 new building Is charged with cons tructive notice during the statutory period and takes subicct to a mCCIl;mi('s lien filed on the property during Ihls period." Ex parte Dot/fhit, 460 Sc.2d at 552. See a/50, CoI/,JfCfil//nveslmenf Co. v. PlIsrrrn, 421 So.2d 1274 (Ala. Civ. App. 1982) la mortgage comp'IIlY Is also Oil constructive notice 01 the poICn1iJ! for filing of lims on a new holll(, duril1J tnc statutory sil(-month periodl. C. COmtlel lng ml'Chllll1cS' ;lIld mat('rial· men's liens With the exception of the "original contractor;" all dOlimilnts under the lll(!(:hi1lli c'~ lien 1a'N "~ t ilrld on an C<IUJI (ootlng" rcgardless of who filed their verified Statement oIliell fi~t (Leer,lIld v, NubbJrd, 216 Ala. 164, 112 So. 826 [1927]), of who gave notice first to the owner (Rayborn v. /-IouSin8 Authorrty, 176 Ala. 498, 164 Sc.2d 494 (1964J) or 01 who began supplyrng m~terlals first to Ihe project (O'CrJdy v. Bird, 411 So,2d 97, 105 (Ala. 1961110dglnill dl.'Cision cor· rected on thi ~ point]). Code §]S,II·228 (1975). Consequenlly, If funds from the sa il! of thc Improved property (together with Ihe unpaid IXIlance due the original contractor) are nsufficlentto sa tisfy all of the liens in full , then they Me distributed pro r.1tJ among each of the nK'Chanlcs and matcrlalmen who obtJln a judgment establishing his lien. Id: KnO)( v, Jonel, 268 Alit. 389, 108 Sc.2d 369 (1959). The unpaid general contrJctor who has established a lien n~rtheless is subordinated to all 01 the claims of his subcontractol1, materialmM, laborers, etc., taking only the unpaid balance due from the owner after full StlUs(action of the other lIenors. 8akc(~ Sa nd & Cr;!vcl Co. v. Rodgers Plumb/nB & /"Iem/llg Co., 226 Ala. 612, 154 So. 591 (1934). On the other haocl, another type of "origtrlal ou t ~tilnding
"'OJ.
207
contractor" (as commen surate with a materialmiln h<lVing a dirl;!ct ( mtr;lct wi th the owner of the " full price" lienor discussed above) appellrs to stand on a (lifferent and more favorable footing than other ll1echanl c'~ lIenors, but the I(IW is I~s than clear 00 thi s point. See lei. at 594, 596. Ta ~ liens Priority bet~n mechanics' liens and general federal lax liens is ~ tabli s hed by the " fi rsHQ- fi le" rul(', A nlechanlc's lien sta t('ment fi led In the probate office before the filing of such a tax lien in that omce CJ'(~a t es a prtority in the mechanics' lien. 26 U.S.C. §6323(a), (I) (1967); see United StlJleS v. Alberc Holmiln I.umber Co., 206 F.2d 665 (5th Cir. 1953.)
O.
IV. Transferring liens 10 subslilule security A 1980 <lmendment to Alabama's mech;mic's lien law prwides a procooure for freclr\8 real prOp('rty of a rnecharllc's lIerl arid transferring the lien to other securi· ty. A/,l . Code §35-11-233(b)(1975). Under this procedure, any peoon with an interest in the real property concerned (such as the ti tle holder or a mortgagoo of the property) or with an interest in the contract under which the lien is claimed (such as a general comractor) may file "with the court In which the acl lon Is brought" a copy of the lien and deposit therein a sufficient sum of money or a sufficient bond e<:l;!cuted by (In accepl<lble surety. The stMute defines what is ~uf ficie nt security and should be closely fl)lIi)V-Ied. Upon receipt of the securi ty, the court is required to "mokc alld rceol'd a certificate showlnglhe tr<ll1 sfer of th<: lien from the real property 10 the security and mail
a COI1r' thereof by registered or certified mail to the lil;!nor ...• §35-11-233(b). The lienor has ten days from the rect!ipt of the certi ficate to move 01 petition the court for a he<'l fing on the suffi Ciency of the security. If he does not. "the real property shall thereupon be released from the lien d nimed and such lien shall be transferred to said security." tf the liel10r does timely move or petition for such a hearing. the real pr(lj)erty shllil be released from the lien and transferred to the securi ty only upon a delermil1ation by the court thrrt the security filed Is su ffi cient and in comll/iance with the statute. Id. Although the Alabama appellate CO\rrts have not e~p l ored the effect of this lien tran sfer procoou re, other jurisdictions with simi\il r StaH,rtes h~. G('rlcra lly, a proper tran sfer of lien from the rcal property allows the dismissal of the owner arid any claim to foreclo se on the property from the jamult; the interest of the O'Wller and the properl y are simply no 10llger at stake in the case. See, e.g., Unco Conscruction Co. \'. Tri-City COIlCf('le. 288 5. E. 2<1 125 (Ga. ApI'. 1982); Dcltona Corp. v. Indian PJlms. IIlC., 323 5o.2d 282 (Fla. App. 1975); Morse Brothers Contractors, Inc. v, CJH Conslruc/;on Co., 675 P.2d 112 2 (Or. App, 1984). One aspect of the amendment nL>t.'Cis clarification by the LeKislnture. Fronl a readinK of subse( tion (b ) of the statute, it appears tha t it contenlplates fi ling the substitut(' security Irl a ci rcuit court where Nan action" is pending to enforce a mechanic's lien. On the other hand, subsection (c) of the st.1tute contemplates a tran sfer of lien prior lo the commencement of (In ilction to enf(lrCe the lien in circuit court, thereby implying that the triln sfer cou ld be effected in probate COurt where Ihe liell Is f(jed . It would
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208
serW L>vcryone's Cor\YCrl lcrl Ce If liens could be transferred to substi tute security in the prob.1te COllrt withovt the necessity of fi rs t filing a su it in circuit court. The writer is aWilfe th(lt, in some co\mties, the pronate court adopts the view th"t it does hayc th!! authority to transfer liens to substitute securities under the statute, and regularly does so. HOWC\Ier, it is also the feKul<lr 1"(I(;tice in other counties to initiate an action in d rcult court to effect the transfer if a lien enforcement aCl ion Is IIOt already pending.
V. Conclusion Alabama's mechanic's 3nd m ~teri(ll· man's lien taw is a male of inconsistent and uncletlr legislation. AI~10UKh Villiant· Iy striving to fill lhc Hell)S and smOOth the tangles, thl;! courtSsimply are not able to discern the legislative InICnt or enunciate (I cie(lr CQurse of public policy. The practitioner is advised to tread carefully un· tU the legislature addresses thi s confusion with a new, up-to-date ilnd com prehensiYe law. • - - - - fOOTNOTES - - - 'If and when tha lien I~ fully pale. Ct'!1Jin "~IUIO<Y llf«edU!~ mu!>r lH! followed 10 ;rckr.owlcdge ~Ii;(;rcl loo of Ihe lien. AI~. Codt 13s-n·u 1I\17SI. 'In Ilaklll Sand 8. CrJvt'1 Co. '" /WI/C-'r$ I'lurnb;rril " 1I~"olrinll Co.. 228 Ala. 612. I S ~ So, 591, 596 (19341, while norlns Ihilllhe~~lulo<ylorm d nQllal does 1\01 meelW'o'llf<l1 f1l<1U;fIl'It1t!n 11 COnlJlned In Ihlllxxly oilhe 'Mu lt. the cou,t coocllKlt'<l. ''We
do not
fc!(!1 aUlllOfl~ed to (u"he< dcplcrCl Ihi, 1m· II()(\~nl ~t~I~11: I1y ~jlllr(jOoo i n8 ~ lIOIice which does notl!'>'!l .11 leJsl rhe informal Ion coolillllt!d In Ihe
p.cscflbOO form 01 notice,"" ~j)I)I:~"lhe,ou n .1pplied the slMurory (\lrm "I a m~,lmum ulHldard. H~. tn a _ J«enl declskln. llle COUll made no memloo dlhe '1~lUt()f)' fo<m in Ib hollll~lI lhal tho plJtpOt1l1(t ",Iv~nr:.. ' lIlIiCf! did not meet ilillUIDfy 't.'1luinlnlc,us. /(,Isore v. flfJt "'uembly of QxJ (hlm:h, 1m:" 477 50.2d WOo lO2 (... 1•. 19851. tn I",t. In /{I/IIO'C", lhe Cc)u,1r.:...,1tl Ihe IWJlce In.urn. cienr. amons other lea'iOOl. OOcilllse It failed to IIsl Hcen~ln ~p«lficd ptlc(!S" al requl'~t by rhe le,n,~ 01 135·t!·210. Id. No IIxplanaliOfl Ii gl~n by Ihe cout! fo, Ihls apparenl shifrin ~and"rd . 'For InSlar>ee. with 'cg;ard 10 p'I>(le.ly localed hi a
,Ity or lown, ·.1,!ew:riprion by hoole Ilumbef. name of W~I and name of city or town" Ii sufflclllnt
under thll statue.
""iI. Code In·t!·213 \1975}.
'The o:><llInl 01 eOodollllnlu.\1 PfOIIeIlY er.cum~red by a lien II \l)l!C1~lIy h.mdtl'« In .. I•. Coda Us-e·t6 (mS1.
¥.itkough Ihe Alabama appel1al~ coum hoM! 1191 addressed whelher an OWrlllr mOlY b'Il dllmin<,:d from tire suir whl:'" Ihl: lien hal bt:o;n 1'~I,.lel'cd 10 .ubltltu1e loI!Cu,l ly urldel Slarulory procedure, other lurlrdlctlons wIth ,Imtl~r It,1tu10ry Khemelo h;we 110 hetd. 5<:\!, ".11., Del,o/l~ (OfP. V. Indlilrl Pdlms..loc .• 323 So,2d 2621Flol. "'pl), t9751: \totlor Co. V. Sur {nwrp,;wl. 206 S.EJd 636 tC~. "'i>Jl.
t\l141.
July /988
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nounces that the following attorneys and law firms have been added to the list of those partidp.11lng In the 10lT", program. The foundation thanks those pM lclp..1"
ins (or Iheir support. BALDWIN Arm strong. V,l ughn & Floyd Ferrell, Kilthryn D. Fleming. Tim W FIO'y'd, J. lMg(Ord Wilki ns, lJankesler & Biles
BARBOUR Jackson, Lynn Robertson
BULLOCK Rullilnd, louis CALHOUN
c.
Burnham, KllncfeltN, Halsey, Jones & Caler Ghee & Associates Long & laBudde
Wilson, Pumroy, Rice & Adams CHAMBERS Revno1cls. Ir., Charl~ C. CHILTON Bowers & Bowers Latham, WiUi"m D,
Moore, Jr., C. Richard Rogers, III, Joel SCOFFEE Mcl.eiln, D. Bruce COL8ERT
Hewlcn 8. Black CONECUH Chapman, II, Wllllilrn T. COVINGTON
Laird. \M!slcy l. CULLMAN Smilh & Smith DALE Kennington, Ray T. DALLAS Williamson & Williamson
DEKAL8 Millican. Carol J. Wa tson & Watson ETOWAH Floyd, Ket!ner, Cusimano & Ro~rts Garmon, Leon Willard, Wi lliam I/:.
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e.
209
MORGAN Chenault, Hammond, Buck & Hall PUCE Pelfrey, V. Lee RUSSELL Legal Services Corporation of Alabama SHELBY JJckson, Ronald E. ShulcvJ, RlchHrd C.
Swatek, William E. W.llden & walden TUSCALOOSA Batlon & Maddox Burns. Ellis, Copeland & Lisenby Cartee, Michilel J. Cockrell & Cockrell Donald, Randall, Dona ld & Hamner l.c<>, Barren, Mullins, Smith & Smilhart
!.egal Services CorporaUon of Alabama Roseft, Harwood, Cook & Sledge Whitehurst & Whitehurst Williams & Pradat WILCOX Bonner, Jr., W.J. WINSTON Richardson, Ann R.
•
Honor Roll of Financial Institutions (as of May 24, 1988) The Alab.lma L1W fOt.mdatioo, Inc. an· nounces that the following fi nancial In-stilutlons arc pMiclpaling In the IOLTA program. The fouowation thar'lks t~ in. stltutior'ls for their participatior'l. AlabJma FederJI SaYings & Loan Association Altus Bank AmSouth Bank· Bank IndclX'ndent, Florence Bank of Albctlyillc Bank of DadcYlUc Bank of Mobile Camden NatIonal Bank Central Bank of the South· Citizen'S Feder.ll SaYings Bank Citizen's Nlltionai B(lnk of Shawmut Coloni(ll Bank· Commerchll 811nk of Olark COYillgton County Bank Farmers & Merchants Bank, Ariton F;lImers & Merchants Bank, L.aF~ne Farmers & Merchants Bank of Russell County First Alabama B~nk· First American Hank, Decatur FIrst American Bank of ~Iham First American Fooeral Savings &- Loan, I"luntwll le
210
First Bank & Trust, GroYe Hill First Bank of Baldwin County First Commercial BiVlk, Birm ingham First Community Bank, Chatom First Federal S3Vin g~ &. Loan, Gadsden First Federal SaYings", Loan of Bessemer First F,-,<Ieral Savings & Lonr'l of Florence First Federa l Sayings & Lo:!n of RUSSllll County First Federal Savings Bank, De<;lIIur First Montgomery B~nk First National Bank, Ashland First National Bank, Brewton First National Bank, Opelika First N,lIional Bilnk of Atmore First National Bank of Columbiana First Niltlonal Bank of Florence First National Bank of Hllmilton First National Bank of Jasper First NationJI Bank of lUskaloosa First National Bank of Union SI>rings First State Bank of Bibb County First State Bilnk of Tuscaloosa Jacobs Bank, Scottsboro National Bank of Commerce, Birmingham Peoples B"lI'Ik & Trust, Selma Pike County Bank ROOctlson Simkins Comp:U\y, Demopolis
Southland Bank, Clayton S00lhlilnd Bank of Ooth~n SoothTrust Bilnk, Auburn SouthTrust Bank of Alabama $QUlhTrust Bank of Andalusia SouthTrust Bank of Baldwin County SouthTrust Bank of Ca lhoun County SouthTrust Bank of Cu llmnn SouthTrust Bank of DOl h~n SouthTruS! Bank of Etowah COUllty SouthTrust Bank of Huntsville $oI..IthTrUSI Bank of Mobile SoulhTrust Bank of Montgomery SouthTrust Bank of Ozark SouthTrust Bank of the Quad CUles SouthTrust Bank of Tuscaloosa County Sweet Water State Btlnk The American Bank, GCI\ev.l The Bilnk ()f t l l1assce The Choct<lw Bank of Butler The Citizens Bank, Enterprise The Citizens Bank of Valley I-lead The Peoples B;mk, East tlllas~ The Peoples Bank & Tru~l, Greenyille The Peoples SaYings Bank, Clanton The Perry County Bank Tuskegee Federal SaYIngs & Loiln Association Union Bank & Trust Company United Security Bank, Butler •
July 1988
Don't let your Alabama Lawyers
get worn, torn or thrown away.
Order a binder (or two!) at $10 each from:
The
Alabama Lawyer
P.O. Box 4156 Montgomery, AL 36101 or call (205) 269·1515 The Alabama lalVyt.'r
IOlTA Participation Deadline Nears The Alabama Interesl 00
~rs'
Trust
Accounts (lOLT....) progfilm hils gotten off 10 a very succ~s ful stilrl. The support of bar members has been overwhelming. wilh 22 percent of those cllHlblc to PJrticil);lIC doing so. As of Mtly 25, 358 tru st accoun'~ representing 1.162 aUornt"{S ""'I!rc C(lnVf}rted to JOLTA accounlS. Rt... ccl pls to date tolal <lpproxlmillcly
$36,000. IOlTA Is a program Allowing attorneys to COlWerl their commingled dient !rUSI accounts to NON 3I:'OOUnlS. The inl(~res' from these accounts Is forwarded, at Icast quarterly. I1tI financial Institutions 10 the Alabama 1..1W Foundation, Inc., which
overSl,.'(?5 Ihe disbu~menl of IOlTA funds. A commi n f.~ of the foundation curren tly Is d(!Vising forms <lnd procedures to usc Irl r'Ilaklng grants with tOLTA fund s. The Supreme Court of Alabama's order authorizlnglOLTA listc<i SCWral ac· ceptable uses of IOLTA Interest which are: " to I)rovide legal aid to the poor; to pl'OYlde I,lw Student loans; to prOYide for the administration of justice: to IlrOYidc lllW"relatcd cduCatiu1al progr"ms to the public: to help maintai n Iwhlic IlIw II· braries; to help maintain a dierlt s(.'(uri. Iy fund: to help malnlaln on Inquiry trio bunal; and for such other programs for 11m benefit of the public as Me speclfl. c,llly apprr;wed b't' the Supreme Court of Alab.lma frum time to time:' Sased on the expetiCtlC~ of Othl,1f jurisdictions the vast majorrty of grant applications the foundation recciYCs arC expected to be from organiZaTions.
All allorneys ildmltted to practice in Alab.lma must make a declslo'l by September I, 1988, concerning their p.1rti. cip.1tion In IOLTA. forms to be used when converting Irust irccounts may be obtained from Tracy Daniel at stMe bar hl!adquiHters. In order to con'v'l;;lrt their trUSt ilCCOllnts 1I110flleys simply complete II conversion form and send one copy to their bank, $end a second copy to the foundation and ke~m a third copy for their record s. Flnancl.1 Institutions throughout the 5t,11e haYe been most cooperatiYe In efforts to imp'ement the program. Their adjuslrIlcnttO the procedures required by [OLTA has gone remarkably
W(!II. Thos!:! allOflll,.'YS not wishing to pilr1i· d pate In the IOLTA Wogram nluSt notify Ihe executive dlre<:lor of Ihe Alabama State Silr by September I. 1988, of their eie<tion not to pMticlpme. This election may be made in the form of a leller and must be done by September I of each
YC-M. As the deildline approaches, SUI>POrt of IOLTA hi both the legil! and bonking communities continues 10 grow. Ala· bamil'S 11rosr;rm is well on the way 10 millchlnglhe success of other IOLTA progrilmS. l'aftidl>"l1lon In IOLTA ({'quires \If!ry lillie effort on Ihe attorney's p..lrt ilnd can enhanr:;e the image of the legal profession while benefitting the 81!neral public. If ~u hiM! not already COf'l\l(!rted your trust account please consider dOing SO; )<)Or SUppor1 will be truly approciatl-d. - Tracy Daniel
• 211
Correcting the Record on Appeal: A Primer by G, Hl)uston Howard, II
I. Introduct io n
Appellate review ordinarily is limited to an examination of rulings made by the
trial court as disclosed by
i\
document
known as the record on appeal.' The record on «Imeal is Ihe official chronicle of the litigation. It cOi lla ln5 the papers flied In the clerk's office and the transcript of Ihe i:Vidcnce and argument pre-
sented In open courU Nevertheless. ju~ like any other chronlcie, It often contains errors and omissions. The jury in$lrl,lction s delivered to the judge milY h;we found their way into some other file. The eloquent but objectionable orMOry may haYe made no im· pression whalsoeYCf on the court reportcr, And I1nally, typOgraphical errQrs
WCaYe their w<f.I through even the best edited chronicle;;, U5uilily In tile most misleading places. Yel, with all of ils Imperfections, Ihe record on appelli rcmliins the sole ac· count of the Iili8~tion th<llthe appellate cout! will consider. If things occurred In the trial COurt that arc not accurately reflected In that chronicle, then it must be corrected, Rule 10(1) of the Alabama Rules of Appellate I>roccdure provides thc mechanism for doing thi s. This MI· ele provides a w(lrking guide to that rule.
II. The Scope of rule 10<0 Rule 1()(1) of Ihe AI;)b;)ma Rules of Appell;)tc Procedure is as foll0W5: If any difference arises as 10 wl\ether the record truly discloses whal occurred In Inc trial court, the difference ~hall be ~ubmi t Icd to Ilild sellioo by thot court arId the record made I() COlllornl to the truth. If IIrrythlng material to ehher p.lny Is omitted lrom lhe re<ord by crror or accident or Is mlsst",ed therein, the P.lf\res by sllpulatlon, or the IIlal COUf! either before or aher the recom is trilnsmltted 10 lhe appellate court, or tMllppcllate court, on proper i uggestlOfl or of Its own Initiative, nllly dlrecl Ihnl the omission or misstatemcnt be COtll'Ctm, and II nccesSilry Ihat a supplemental record be cCrtlnetl "r\d tran smillcd, All other Ituestlons as 10 the Iorm and content altne record shaH be presented to the appellate COUI\,
212
The rule is not designed to allO'N a party to offer on ilppeal ;additional evidence th at he should h~ Ilffert.'<f at trial ,' nor Is it d~ignL'<f to ;a1l<TN a trial court to cooducl subSlantive I>roccedlngs thai it should have conduclOO before elliering Judgmenl ,~
It Is, however, designed 10 allow the appeJ1ate court to rcvll"v\' the trial court's actions bilsed on the s,lnle Informalion lhal was bel'ore the trial court. In determinIng whether materi,d may be included in the recor(!, the test is whether the material was before the trial court.! Of course, milterial is formally placed before the court by filing il in the clerk's office or offering it dlJ'ing a hearing. Yet, motions and ilrguments often are prosentoo Informally In hallways and chambers. The Informality wilh which material Is presented Is not a basis (or re(u slng to memorialize the C\'Cnt in the recor(! as il occurred,' The issue of whether what occurred c(eales any rev;(!W,lble issue is II separate question thai should be of no consequence 10 Ihe trial court. The court's ta sk when ruling on a motion to c()rrcClthQ recor(! is to milke the chronicle as accuratc as Is possible. To this end, a mOtion undur rule 10(f) may be used to correct a hOSI of errOrs thdl occur in the preservallon, transcription, tran smission ilnd deilgnatlon of court record s and proceedings, A. Errors In pr~r yatio n-Rule 10(f) nnds Its widest and perhaps mostlmportant application as a device for crea ting a record of events thJt were not memor· lalized in court record s. Although rule tOld) creiltes a procedure for creating a l1!Cotd ol unrecordt.'tI proceedings? often one docs not discOVf!r that events were nol memorialized until after the time limIt SCI by thm rule has elal)Sed, Rule 10(f) then Is an aVili lable 'Clllcdy. Information that molY be Included In the record under rule 101f) Is 001 limited
to proccedlngs that ',V(lre originally recorded by thc court reporter or 10 documents thai were actually filed In the derk'5office. Requests macE to the ludge in chambers, in the COUf! hillis ;and in unrecorded bench conferences m<l)' be indudL'<f In the record under rule 1O{f).8 Rule IO{f) has been used in conjunctiOn wi th rule IOld) to amend the appellate record to include unrecorded confer· ences,. motions}O openins statements,lI closing argumentS,l1 obJcctions to jury chargesu and agreements between counscl.'~
Similarly, court recordi from other CilSC5 may be Included In the record on apPCill if the trial court considered them in rendering ils decision,ls Fot eXilmple, In Wh ile v. Stale, 378 So.2d 247 (Ala. Crim. API). 1979), the defendant contend· ed that his acquittal In iI related case bilrrcd the present prosecution , The trial judgc had heard the earlier case, ilnd having personal knO'Nledge of the issues in the action, he had QYerruled the pica of double jeopardy. Tile court 01 criminal ;aPf>Cals. however; remanded the case to the trial Court to make find lr'lgs of filet about the Issues In the I>rlor action, A trilil script of the prior acti on wa s prepared and certified to the court of criminal appeals. Some phy5iclll actions thai occur duro Ing a Irial, such as the separ;ltlon of the jury, the absence oflhe judge or a gesture made by a witness, ordinarily do not apI>eM In the record. Yet, such Informiltiun may be relcvilnt to [Ill Issue raised Orl appeal, and when it is, rule 1O(f) may be used \0 Include it in the record ," 8. I:rro rs in t ranscripti on-Rule 10(1) also proYldes a mechanism for correcting routine typographical erroll in trM scriptS and related documents.I' course, the corrections Ihat may be mooe Me limited to those thill arc necessary to milke the record truly reflect what occurred in the circui t court. That is, If t~e documellls filed in the circuit court contained errors,
or
July 1988
then those errors may not be corrected on appeal;" the appellate record must truly disclose Ine documenlS thai were before Ihe trial court, Snider v, St.'lle, 406 50,2d 1008 (Ala. Crim . App. 1961), illustra tes this use of rule IO((). Although the transcript in Snider reflected thai the defendant had been convicted of seIling ma.rljuana, Ihe formal judgment entry adjudged him guilty of Qposses$;on and sale of marijuana:' The COUrt held Ih;lt this was a cterical error rermCl able by 11 motion under rule 1010.19 C, Errol'S in (lfS lgnatlon-ln ellIlI cases Ihe appellanl h requirt'd 10 designate, wIthin se-.en dil)'$ after filing ootice of appeal, the portions of the clerk's record and reporter's transcript Ihat he desires Included In the record. If Ihe appellee W.H1\S to include addWonalltems in the record, then he nluSI designate those addillonal Items within SCl'\ICn days after receiving the appell.-,"!'s designation of the record.lG When one discOllCrs that he needs a pal1lon of record nOltimely designated, rule 10(1) affords a remedy. In 拢1( p;1rte EdW.1fdl, 450 So,2d 464, 466 (Ala. 1984), the supreme court held that "lrJule 10(f) acts as a safety val-..e to allow a pany who has, by reason of 'erR)( or accident: failed to designate a malerlal portion of Ihe reeol'd to re<:tue~t the trial coun or Ihls Coun to permit additional portions of the record to be Il1dudcd.~
O. Errors in transmission-Similarly, rule lOll) 15 also dlC proper remedy when the clerk has Onllllc(l documents from the record on appeal. The court of crimInal appeals hilS relied on rule 10(0 in dlr~t jng trial clerks 10 ccrllfy 10 it affidavits, search ~rfilnts and tal>C rC<:Qrdings thai had Ix'fln omitl(.>d from the record on appeaLl' E. O th er applications-Rule 1010 has been liberally applied In criminal cases to permit the appellate courts to resolllC constitutional Issues.n In some of these C.1SCS, Informal1on Includ(od in Ihe record under rule 10(1) had nCIICr previously becn presen ted 10 the trial court. ForC)(""lmple, in Pei.ll II. Stille, 491 5o.2d 99\ (Ala. Crim. App. 1965). the court of criminal appeals directed the trial courl 10 conduct a hearing to determine whether the slate had breached a discoycry agreement with Ihe dclendant. The
The Alabama LawYl'r
trial COUrt held a hearing at which witnesses testifit!d about the agreement. UI>an return to remand, the coun of criminal appeals found that the stale had breached the agreement, and il rl,.'llCrsed the dc(endllnt's cOl1l'lclion. Since the maners included In the rt!(ord afler remand had nCYer previously been presented 10 the trial court, Peal rel>resents a questionable use of rule 10(1).23 The remand in Peal would ha-..e Ixoen more properly Justified as an exercise of the COllr\'S inherent l>O\-'.'er to direct further proceedings In the interests of Justice.
III. Procedure under rule 10(1) A. Time for filing nlOtlon........ hhough rule 1010 pr(Wides thM a motion to correct the record may be filed "before or aflcr the rl'CQrd Is tr~nsml ltcd 10 the appellate court .. _," it wts no time limit for fiUngthe motion. Prudence dictates that one nte such a mOllon as soon as possible; yet, court decisions establish that a party may, as of right, correcl lhe record on appeal even after the IIp/>cllate COurt Issue$ iu opinionl4 EI( p.1rle Sawyer, 456 So,2d 112 (Ala, 1983), Is IIlu~trativc. Although the appellant In SDwyer had entcrt.>d a plea of guilty, she sought appel late tCIIicw of fhe trial court's action In denying her mO(ion 10 suppress. The COelrt of crtmlnal aplleals refused to review thc Issue, holding th:n she had w(li\'Cd it. After the court issued ilS opinion, the defendant ntcd lin applica tion for rehearIng and a supplementa l record rl>fll}C\ing th;U she had e.!Cprcssly rcscMod her right to present the search and seizure ques.tion on appeal. Thereun of criminal apI>cals OIICrruled Ihe application. The
Alabama Supreme Cour1 granted certiorad and directed the court 0( criminal appeals to rt."(oo5ider the case based on the 5upplenlCntai record. When some document or transcript is omitted from the record, the court frequently refers to Ihls ooli~sion In its opinIon and to the availability of rule IO{f) as a remedy." This is an 1""ltatlon for the loser to 1)r'CScnt the omlncd material to the court with an application for rehear路 Ing.'路
B. place for filing motion-The trial court, not the appellate court, is the proper forum for resolving disputes aboul the factual accuracy of the record on appeal. Rule lOll) e.!Cpressly prQ\lides Ihat "IIJf any difference arises as to whether the record truly discloses whal occurred In the trial COUr1, the dl((crence shall be submitted to and settled by thai court ... " Consequently, one should or路 dlnarily nle a motion 10 correct the record in the trial cour\,11 Although the trial court alone may determine what occurred before It, the appellate court may dire(t the trial court to prCI>are a supplcmentalll,.'Cord o( wha t occurred or Indude omlttt.'<.l documents In the record.11 If one anlicip,atcs difficul. Iy In timely obtaining a supplemental record, one may filea molion to remand In the appellate coul1 asking It 10 direct the Irial COurt to prepMe a supplemental record.J9
C. Content of moti on-A motion to COrrect the r~ord should sta te the sJ)Co clfic defcelln the record ilnd the SI)(!Clfic COrrection SOlIght.lO If a transcript of part of the proceedings Is nOI av.lilable, the nl(P.lant's statement 0( the cyld~ under rule 10(d) should be attached 10 Ihe m0tion," Similarly, If one desires 10 include
C. Houston Howard, II, is a member o( the \o\t>/umpk.l firm of Howard, Dunn, HOWiJrd &. i'fowa rd. He received hl5 undcrgraduDle and law dcgrees from the UniverSity o( Alabama. While in Ii/w school he serYCd as the managing editor of lhe Alab..lma law RelJicw.
213
some omiued (lo<;umenl in Ihe r('Cord, one should illlach Ihal documcnllo Ihe mOllon. A SlImplc mOlion al>llears at Ihe cnd of Ihis article. O. Proceeding! on mollon-Unles~ Ihc parties reach a sllpulalion about what the record should con tain, the Court should give illl ptl Tties an opporlunity to be heard on the molion.1I Witnesses may leslify about what occurred on Ihe Otiginal trial. If mOlions or objections were presen ted to the ludge In chambe~, in bench conferences or In the hallways, then witnesses may testify to the se occurrences,u Although the court has held thaI one may not usc rule IOIO to offer new, subSlantive evldl!l'Ice concerning the merilS of the cas~." In Rogers v. Slale, 491 So.2d 987 (Ala. Crim. App. 1986), the court l>ermillcd a wllness whose testimony had not originally b~'Cn recorded to testify ilgain, The COUl'l then considered this new testimony In review ing the trial court's judgment. Although the procedure used in Rogers seems improper under rule lOCO, al)lhlrently no one obJccted to It. The tcstlmony offered at the hearing should be transcribed ;md certified 10 Ihe ai>l>cllate coun. Addl tion.ll1y, the trial court should enter an order senllng the disl)Ule aboul the contCntS of the rec· ord," even if the parlies reach a SIil)ul ..lion."
IV. Review of lria l couri One mUSI di stinguish factual issue abou t what occurred in Ihe trial COurt from related legill issue aboul Ihe signi(Icance to appellatc (I,'Yicw of those occurrences. The trial court alone has the authorllY Itl r!'sol'li! lac/Uallssues about Wh,'! occurred ~fore II; absenl a shO\N'ing Ih;lt It Intentionally (al slfied Its records, IlS delermination Is conclusive." Yet, once the tdill court resolves the f.lclual issues, the .,ppcl1iltC court is the final authority (01 dClerminlng whether those OCCl.lrren<:es should be considered on al)l>cal, and if so, their legal effect on the Issues rai sed. The tria! court has no authority 10 Include in the record things Ihat admittedly were not originilily befOre It, nor does it hilYe any authority to Cl(clude from the record things that admi ttedly were origin.1l1y before Il.u To challenge the composition of the record In the appellatc court, one firSI
' 14
must challenge the composition of the retard in the triill court. Thi s is ordinarily done by filing a motion to correct thc record In the trial Coort. If the trial court Improperly permits documents to be included In the ffl(Ord, the aggrieved party m~y file a motion to strike the documents in Ihe appellate coun," 01 he may file an ind~ndenl ac· tion for a writ of mandamus In Ihe appellate court.40 No Al~ bama decision explicilly selS fort h the procedu re for obtaining review of the trl.ll court'S rcfu~ al 10 Include th ings in the record. In Finch v. Stale, 479 Sc,2d 1314 (Ala . Crim. App. 19851, the court of cnminal appeals roversed the Irial courl lor refusing 10 supplement Ihe record, 'lotlng that it was " la/iJI)lylng Rule upon suggesl ion of appellant ..• "
10m ...
V. Effect of correcled rec ord A. In general-The corrected record replaces the original record for all pur· poses. The court "must decide .\!'Iy revi(.wable qUC'ilion by whal Ihe record on ;IPI~al now shows, nOl by what It previ. ously )howcd."'1 Similarly, when "no reco rd Is made of the evidence laken at a Irlal and the lriill coun apl)rQVeS a st a t ~.. ment of the evidence •.. !the apl:>ellale court) mUSI accepl th~t $Iatement of Ihe evidence as being trUl'.NH
B. Incomple te record : (I) Civil Cascs- In cilill ca5CS the burden r~IS on Ihc l1ppcllant to pr~ent a retord shewIng the errQr committed by the trial court. If tho record docs nOI con tain suffldent detail or clarity 10 show the 11 1.11 court') error, then the appellale court will affirm Ihe Judgment.'J Unfortunmely. wnetl a transcript 01 the testimony Is not allailJble, It sometimes Is Impossibl{! to obtain [I camp/ell! Stl1 tement of til e evidence under rule IO(d). When the record shoN5 on its (,lce Ih{ll II is incomplete, the ilPpeliale court assumes Ihal the missing evidence supporlS the trial COurt'S judgment; this assumplion prevents a revc~al based on the InsuffiCiency of the evidence.· '
Seidler If. Phillips, 496 So.2d 71 4 (Ala. 1986), a boundary line dispute, represenls .1 harsh appliciltion o( thi s princIple. The court reponer losllhe tran script notes, and the ilPpellanls prepared a Slillemenl of the evidence under rule IO{d}. The appellee apparently filed ad·
d1tloos and corrections. Unable 10 remember specific testimony, the trial court entered an order nQlingthat "it is difficult 10 say Ihat the statement of fads presen t· ed by either party Is Inaccurate." Although the Alabama Supreme Coun <Iuestloned Ihe suffldent)' Ihe evidence, II affirmed based on the insufficiency of the record. The court noled, 'I\hhough there is no clear evidence In lhe record to suppor1 thc trldl court's find· ing of ad~r5c possession ... we muSI assume that Ih€! missIng ~Idence Is suf· flden t to support the judgmenl ••. " In Seidler the appellanls were precluded (rom apl>ellate review 01 the sufficiency 01 the evidence bec.1Use the court reporier had lost the transcript nOles. Certainly thi s Is a ha",h rem(.ody for one who was without fault; a more approprll1 te ((!medy would hl1ve been remandment for retrial. Yet, the Alabama courts hlllle held that Ihe coun reporte(j I~s 01 notes Is not a sufficient basis for aW,lrding Ihe illJI)('lIant II new trial in a civil case." (2) Criminal cases-In criminal Cases the Slale is required 10 proylde a COurl reporter <I I trial wi thout <I requesl from the defen dan l.·~ Further, when a tran· script of Ihl! I!vidcnce Is umwailoble, a statement of the evlde'lce prepared under rule 101d) is not alW3')"l sufficienl to sa ti sfy Ihe dcfendant's righl to due prOcess 01 lilW. In Ex p.lrfe Steen, 431 Sc.2d 1385 ("1.1. 1983), Ihe COlm SCI fOrth Iht! normal procedure when difficulties Mise In obtainIng 11 tr;lI1scripl: "Customarily, where a transcrlpl has not been tlml!ly nled in t~c ~fIp(:U a te COU" , It fCmands the case to the t,lal court to (leu.!,mlne whether the appellant WilS at Iilull In failing to file, TtK! trial court. if it determines th<ll the appellullt W.1 S Without fault, thetl directs the prep.1,atloll of the Ifilllscript or a SUCCinct statement ~ tht! evidence in lil!u of a tran scripl. If preparation Is not fea!olblc, the tllal cour1ls then requIred 10 gfilnt D new trial.·"
0'
VI. Conclusion Rule 10m provides a si mple lind efficient remedy for most of Ihe COmmon problem~ tha t arise in presen ting an accuratc and complete chronicle of 1I11gation 10 an appellate court. If used wisely, II allows one to maintain thllt p,!per Irall from the circuit court to the appellale coun that is necessary for effecl ive ilppell;lIe revi~'W. • July 1988
IN THE CIRCUIT COURT OF _ _ _ COUNTY
Plaintiff
V. OC!fcndanl
Wherefore, the dek!ndanl moves the court, pursuant to rules IO(d) and 10(f) of the Alabama RuJ~ o f Appellate Procedure, 10 correct the record on appeal to include the defendilnl'S objections to Ihe coun's jury charge and the court's rul ing thereon, as shOlNn on CJChlbll one. (Attorney's Signature)
side of the hearing of Ihe COurt reporter, and the judge asked us If we had any exceptions 10 his charge. The plain tiff's attorney stated that he had no el(Ceplions, and I stated in subsl;mce, Yes, you r HOIlOl'. 'M.l object 10 the Court'S instructinll the )ur)' thilt It may
l'IWMd damagcs lOr menIal anguish in !h1 5 (;8oe, Th l$ 1$ an action (or breach c:J contract, and d~malles /armental anlIulsh aro nOI i'(!((M:!rable. Th is case does nOl come within any extepIion to the rule ng., lnSl llWolrdlos dam:lgcs for mental anguish.
Civil Action No. _ _ _ _ __ STATE OF ALABAMA COU NTY O F _ _ _ _ __
MOTION TO CORRECT RECORD ON APPEAL I. Thedctendant filed Mtlce of appeal 10 lhe Alab..1m.l StJpreme Court on (diIte), and lhe couri reporter's transcript waS filed with the circuit clerk on (date). 2. The transcrlpI docs not truly disclose what occurred In thi s court because it does not conta in a rocord of the defend. ant's objections to the jury charge ;md the cou rt's ruling on th ose objections. 1. . Al tached hereto and made a I)arl hereof as CKhlblt one Is the defendanl'S st,lIemenl Ilursu ant 10 rule IO(d) of the Alabama Ru(es 01 A~IIi1le Procedure summarizing the unrocordcd proceedings.
AFFIDAVIT OF (ATIORNEY) Before the undersilJ"led NOlary Public for the Slate 01 Alabama al Large personally appeilred (illtorncy), who says on oalh as follows: I. My name is (Nanle), and I was Ihc trial attorney (or the defendanl In Ihls <letlon. 2. The lrial of this case W<l S held on (dale). Immediately afler the judge In· stru cted the jury ilnd before the jury relift.'ti 10 consider its Wolrdi cl, the judge motlonoo for the plaintiWs attorney afld me 10 approach the side of his bench. 1M! walked to the side of the bench, oul-
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ele opportunities 21-23 A NN UAL MEETINC Wynfrey '"tolcl, Birmingham Alabama State Sar (20S) 269·1515
11-13 5n{MImass Village, SnO\Nm(lSS, Colorodo American Law Institu te-Amcrican Bar
Association Credits: 19.8
28
Mobile
thursday
Cost: SS25
(215) 243·1600
ADM INISTRATIVE LAW FO R THE GENERAL PRACTITIONER
14-15
Courlly Courtho use, MOntgomery Mo ntgomery COLlnty BM Assoclallon Credits; 1.0 Cost: $1 5 Ilonmembers (20S) 265--1793
A RT LAW The I;Vestbury Hotel, New York
Prilctising Law Institute Credits: 113 Cost: $450 (212) 765·5700
29
friday
TH E LAW O F CHECKING ACCOUNTS BLUE SKY LAWS Hilton, New 'fork I'racti sing Law Institute (wdiIS: 11.1 Cost; $375
Resorts InternaliMal, Allanli c City Douglas Whaley & Company Cn.'dits; 5.5 Cost: $150 (614) 899·1998
(212) 765· 5700
14-16
29-2
TOX IC TORTS AND PRODUCTS
NORTHEAST BANKRUPTCY LAW INSTITUTE
Ll ABII,ITY
Snowmass villagii, Sn<wvmass, Colorndo Amerl cll!l Low InstitutMmcrican BM Association
Credits: 21.0
Cost: $475
tuesday
BASIC DRAFTING OF WILLS AND TRUSTS IN ALABAMA
TRIAL EVIDENCE, CIVIL PRACTICE, EfFECTIVE LITIGATION
2
Quebe<:
IIl~titute~ 011 llilnkrupt<:y I.aw Credlls; 16.0 Cost: $450 (404) 535·7722
(215) 243·1600
N.. tional BuSlril!SS Insti tute, Inc.
Credits; 6.0 (7IS) 835·8 525
Cost; S98
3 wednesday BASIC DRAFTING OF WILLS AND TRUSTS IN ALABAMA MOritgomcry Nationill Business In Stitute, Inc. Credits: 6.0 CQst: S98
(71 S) 835·8525
4
thursday
BASIC DRAFTING O F WILLS AND TRUSTS IN ALABAMA Huntsville NmiOnal Business Institu te, Inc, CredilS: 6.0 Cost: S98
(715) 835·8525
4-6 ACQU ISIT ION S AND MERGERS The Stall(o rd Coun, San Francisco Pmctlslng law Institute Credits: 13.3 Cost: $475 (212) 765-5 700
19 tuesday
30-31
6-7
RECENT DEVELOPMENTS IN THE
LITIGATIN G PSYCHOLOGICAL INJUR IES
AIDS-CURRENT MEDICAL AND LEGAL ASPECTS
EM INENT DOMAIN LAW County Courthou se, Montgomery Montgomery Counly Bar Associa tion
Credits: 1.0 Cost: $15 nonmembers (205) 265·4793
216
HY'II! 1 ~ landi a I-Iotel, San Diego The Medl·Legal IIl sti t\lte Credils: 11.8 CoSt: $435 (8181 995·7189
Ho tel Intercontinental, Nt........ Yo rk The MiWl.t.egal In ~l l t u te Credits; 11.3 Cost: $435 (818) 995-7169
July 1988
11
CORPORATE ADV ICE
COlmlY Counhouse, Montgomery
thursday
COMMERCIAL REAL ESTATE ACQUISITION County Courthouse, Montgomery Montgomery County Bar A ssociation
(rt'(HIS: 1.0
COS1: $15 nonmembers
Montgomery Counlv BM AS!oOCi<ltion Credits: 1.0 Cost: $15 nonmembers (205) 265·4793
19
friday
WORKE R'S COMPENSATION Montgomery Nmion;'li Business l n~tltute. Inc. Crcdit~: 6.0 C()!.t: $98 (715) 835·8525
11-12 NORTH EAST REG IONAL TRIA L
ADVOCACY COU RSE l-'o(slr,l University, 1"lcmI»ICild,
25
thursd ay
New York
NaUonal Inslitule lor Trial Advocacy Cred its: 75.0 CO~t: $lASO (800) 225·6482
16
friday
FAM ILY LAW CIvic Center, Birmingham AlabJlllll Bar Insti tute for CI.E (205) 348·6230
19-20 LITIGATION RI SK ANA LYSIS
four St-'a ~ons Clift HOlel. S;1I1 Fr,lIlcisco Litl}t<lIion Ri~k Crt'dlls: 10.8 (415) 854·1104
An;)lysl~,
Inc. Cost: S800
ALA BAMA SECURITI ES ACT County Courthouse. Montgomery Montgomery Count) Bar A~'>OCiation Credits: 1.0 CO'\l: SIS nonmemlx!~ (205) 265··4793
22
thursday
REAL ESTATE
tuesday
Civic Centcr, Monlgomc'Y Alab..lnla 8M InSTiTUTe fOr ClE (205) 348-6230
WORKER'S COMPENSATION Birmingham National Bu sl n(!~ 5 Institute, Inc. CIl.>(!ils: 6.0 (715) 835·8525
16
23
Cost: $98
friday
REAL ESTATE
17
wednesay
WO RKER'S COMPENSATION Huntsvi lle Nation,,1 Busi ness Institute, Inc. Cri..'d i l ~:
6.0
Cost: $98
9
friday
CI VIL PROCEDU RE H,uix'rl Cen tcr, Birmingham Alabama Bar In~t ilute for CI.E (205) 348·6230
(715) 835·8525
18
Civic Center, Blrmlngh,lm AI,lb,lnla 8ar In~titute (01 ClE (205) 348·6230
15
thursday
thursday
29
thursday
TRiAl SKilLS Von Braun Civic Center, HUlllwille Al,lbama Bar Institute (or CLE
(20S) 348·6230
30
friday
WO RKER'S COMPENSATI ON
Mobile Nillionill Business
Credib: 6.0
In~lIIulc,
Cost: $98
(715) 835·8525
The A/,10amll Lawyer
Inc.
FAMILY LAW
TRIAL SKILLS
CivIc Cenwr. MonlgOllwry AIJbama Bar Institutc for CI.E (205) J48·6230
Civic CentCr, Blrmingharr AI,lbillll;) Bar Institute for CLE (205) l48·6230
217
Consultant's Corner Q. Whal Jooul obsolescenl;el The following is it rC\liew of and com· nlenlary o n an office automation issue with current importance 10 the legal community, prep.ned hy the office (lulomatlo n consulta nt 10 the slilte b.u , Paul 8ornsteln, whoS(' views Me not neces-
A. This is obsolescence-proof. It will last forewr. Translation",1 hope it will last vntil l get out of you r office and collect my commission,
saril y those of the stale bOH. This is the e ighth arlicle in our "Con· sultanl's Corner" series. We would like 10 hear from you, both in critique of the art icle written and suggestions of topi cs for fulure articlH.
Translation.. W hat do}Ou want! Be g(Jterul Ihe lights go blink, blink, blink. Q. Are you active in legal research! A. Are we a(tiW'!? ..You must be kidding! TranslaUon ... How did Ihls rlerd find out we are going In Ihe lank nelel weekI Q. Where do you ClePCCI 10 be In len yeiHsl A. Right on lop of Ihe legal market. Tr,lnslatiOfl ... Uruguay. I understand Ihey do nOI h~ t!Xlradition (r'Calles wilh the Unitt.od SliltCS, Q. If we do business with you, will you gUJrJll1ee the resultsl A. AbsolutelyJ
Translation .. 'when were you born? This is Ihe '60s1
Why don't they tell il like it is? Many vendof$ tooay h<M.l dt.'\leloped a
On
remarkable ~rslon of doublc-speak.
They have a litany of "knee-Jerk" responses that cover any sllUiltlon, be 11 an Irmoccllt request fOf information to a nasty reaction to the liltJ'!st glitch. Her<!Wilh, a sampling of the more egregious ones:
Q. When will the ~rslon you promised
me be avallablel A. We are working on it (ight now and It should be in belil testing Ihls moruh. Translation...\M;! h a~ not even begun to work on it yet. 1M! are not going 10 waste our mOnf..'Y on your dumb scheme until we get p<1id to do so. Q. Is this Ihlng <i)()Urs compatible with that thing of thelr'sl A. Absolutely. TrJllslation .. ,1 do not have thc vagueSt Idea. I just hope you do nOl pin me down too hard before we close the deal.
218
11
more serious nole
Walch out for the glib purveyors 01 ~what you want to hear." MOSI of them ha~ (al most) a ~ry shallow corn;cpt of your needs. Your long.term interests He with established vendQrs, lhose with more 10 lose than a tawsUil, flied with an agent of record who lives in ~ poS! office bole. • 80rllitein Q. We ca nnOI sccm 10 get the FrJmis progralll 10 work.
A. I am sure II is juil a minor mailer. Translillion ...Why did you ha~ 10 bring UI) this cheslnul just itS I qualify for Ihe Irip 10 Acapulco? Q. What If Our r'Cqulrements change? A. No I)roblcm, wc MC as close as Ihe phone.
Alabama Bar Directories $15 each (includes poslage) Send check to: Bar Directory P.O. Box 41 56 Montgomery, AL 36101
July 1986
Limited Director8' and Officer8' Liability Come8 to Liie in Over 30 State8!
I
T IIt.:GAN Inst yellr In 1)cIIlWRI'C. ' I'he Slato
11Ilssed Inndmlll'k legislation en· abllng OulnwAr'tl coqxlI"ntiolls to limit UI' lJlimlnfl1U the pel'sonlll linuility of theh' dll'cctors unde.' cUI' laln ch'cutllstnm';cs. Tho ]'CIIC'
lion among thu businuss commu· nlty was o\'(lI'whelrnlng.
So far, 33 other st:lIcS-Arlwnll, Arkansas. CIlliromln , ColorMJo, Gt.'or'gia, Idaho. indiana, lowil , KIIIl~IIS , LIlU I ~il\l Ul , Mlll'Y' 1I11ld, MaUlIchusul1/1, Mich igull. l\linncsoill, r·..lon· I Ul\n , Ncvud a, Nuw JCI'SUY. New r..'Icxi<;o, Nil\\' \'ol'k,
NOI,t ll 01l'ollnll, Ohio, Oklahul1lll , Ol'ugon, Penn-
In onlm' 10 IIdOpl the new proviSions.
sylvania, South Dnk{ltn . 1UnncsS{.'(t, 'lllxllS, u tllh, Vkginla, Washington, Wisconsin and Wyoming hnve pn$St.'d legtslatlon affocling till: IInhility of dlrt-octOI'S alldlOl' ofl1oors.
be dcllghwd to givlJ you llllwyers and thelr' !>.'ll'a,
"ow' local C T ,\ccount Rl.'prcscnllltive will
0111' new PlltJUCllUOn, ('rtwisif)ItS lie/MillS w 'he l.imif/J/iull of IJil'tx,'w/"Ij' (irld/or OjJit"CI'tI ' I JI!bilil)l pl'Ovlde8 II COlllp.tLI'!UillO study of th.., ncw l)J'ovtsions. ,I '''!/JIII/dc,': CT handles thouSllnd$ of IIlIlendment assignments IIllnunlly - f!'Om tYI>ing walvel'S of nulke and una nimous written con· $lIIIt5 1ooompilillg lind filing ool'tlnentc8 uf lIlIlend· men\, ohllllning !'t'<lulred Ctlrlifi,:d copies, llnd effecting 1't'Cotdlng lIndtor pll\Jlicnllon, whe r~ l'cquh"CI.l.
lI:glIlll only, of coUl'sclmol'c Information al>out t ho help we C.11l pJ'Ovldo In (''OIII1I.'(;tion with this IInl)oI'\lII\1 now legi~lll l ion . Why not cull liS today! C 'I': I'm Illmvycl'. PICllse Sllnd me u (''OI'Y of your
nuwes t (',(ll11pllIl11on l'rtJl'illilJltli llc/Uli,1S 10 ,he Limi· of D;I"«lor5' alJ(l/or OffICers' Llllllillty.
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The Alabama Lawyer
219
Justice Hugo Black and the First A "
by Hl)lIi nge r F. Barnard
"
The Firs! Amcndrner\t views o( Justice Hugo 81ack am so wt!1I路known that they require no cllatlon or explanation. He was a Iitcr<lliS1 and an absolutis1, He carried a COl1l' of the United States C01151ill,lti on In hi s vest pocket at all times. He
knew what the ConstilUtion Solid, and he believed it mCilnt whi!.t it $<lid.'
,,'
The First AmcndnH!nlto the Constitution reads as foIlO\'o'5: "Congress shall milke nQ h,IW n!Spectir'18 all cstabllshment of religion, or prohibiting the free eKerelse thereof; or abridging the freedom of spctX:h, or or the press; or the right of the
I>copie peaceably [0 assemble, and to petition the government for iI redresS of grievances:' That is an unequi\lOCal and unconditionill st<ltemcnt, and Justice 91(1ck read il as such. Hc repea tedly wrote, often in dissent or special concurren ce? th,ltlhc First ArYlC!ldmcnt of the United Sta t~ Constituti on meant that In thi s coun try, gO'o'ernment J simply Cilnnot censor speech. As early as his fourth term on the Court, the justice begiln to e~ pffm hi s commi tment to the f!irsl Amendment ri!:lillS. I-Ie wrotc for the COurt in BrldfiCS II. CaJi(orn/~ thi"lt "It is a prized American privilege to speak one's mind, although !lOt i"liways with perfect good laste, on all public Instltulions:'" Black's earlier, unpublished, draft dissent in Ilml case stilted his position more emphatic:ally. "First In the catalogue of human llbenles essential to the life and grcmth of a go.oernmel'll of, fOr, ~nd by the peoplc IIrtlthose liberties wriuen Inl01he First Amendment to our Constitution. They are the pillars UI)()n which populilr8CM:!rnment rests and wl1houl which II 80Yernmcnl of free men ca nnOI survive.'"
Hugo l. Black 1886-1971 220
In the same term as the Bridges declslorl, Justice Black INCnt public with the passion of his poSi tion, Ihis l ime wri ting In dissem, in MilklVagOfl Orivers Union II. MeadfM'moor Dairie$.'
July I ~88
-
-
mendment: an Alabama Connection • • • I view the 8Ui1rantl'C 01 the FIlS! AmCfldment u the foundalion upon
~
which our goycrnmentai structure rC')tS and without whkh it could nOl condnue
to endu/i! as concei\o\'d and planned. Freedom to ~alc and w'~e about public queslions Is a~ Important!O the life of our soYernment as Is the Ilean 01 the human body. In fact, this privilege Is thil heart of our B(Mrnfl1('Ot. If thai lint" be weakened, the resuh Is d(.oblht;lIlon; If It be 5IllIed, the result 1$ death,"· The First Amendment, of course. expresscs nOi one righ t, bUI a group of re-
lated rights: freedom of 5p(!eCh and oIlhe press, freedom of religion and of associa· lion and assembly, and the right to l>eli. lion gOl.1!rnmcnl for redress of grievances. One Hugo Black schol<H has 5uggMIed thaI "[IJo Isolate representative oplnlorlS of Justice Black in the field 01 fret'!
speech, free assembly, free Ilress, and censorship Is, in a way, to I)ull apart a fabric whose threads are carefully inter. woven:'· WIth due recognition that we "pull apart a fabric whose threads ilre carefully intcrwovcn,H this article focuses on three of the Justice's First Amendment opinions to suggest an AI<lb..lma connec· tion to each of those opinions, To suggest an Alabama connection to I lugo Blnck's judicial phllo$()phy and to his published opinions is not cXilctly a radi cal proposal. Hugo Black was, after all, born and reared in Alabama, OOuC<iteel In Alabama and engaged In the practice of Inw In Alabama,'G He was also ... iIified In this statc and is now honored in this state,1I Where his name was once anathema to perhaps the majority of the citizens of this state fOr his consistent support of the rights of black people from the nation's highest bench, his name now is engraved on the new federal court· house in Birmingham, Alabama, In tribute to his couragoous ~dyocacy of civil righ ts for all I>copie In this nill lon, When Hugo Black was appointed to the Supreme Court In 1937, he assumed permanent residence in W.uhlngton, D,C" and never again lived In Alnbnma,
The Alabama
La~vy!"
although he visited occasionally,1l for ten yearS prior 10 the Court appointment, he hnd scl'\lCd as United Slates Senator from Alnbnma and maimained resldcmces (as was and is Ihe practice for United States Senators) In both Binningham and Wdshinglon and divided his time bct\.\lCen tho two places, Despltt'! his absence from the state, hQW\!'Jer, Hugo Black contin\Jed to have contact with Alab:ma, While on the Court, his law clerics Often v.oere Alabanllans.1I His son, Hugo Black, Ir., mOYcd to 61nnlngham to praclice law afler gr.ldualion from Yale I.nw SchooL'· And the Justice'S sister-in· law, Virginia Foster Ourr, returned to Alabama with hor husoond, CUfford DUrr, In 19S1. All of this family .lnd extendL'd family' J kept the justice in touch with his naliYl"! Siolte, It is Justice Black's relationship and cor· respondence with his wife's sister, VirginIa Durr, that suggeSts ilO Alabama conO(,'CIion with alleas\ threeof the justice's published opinions: his dissenting opinIon in Bilfenbllltt If. United Stales In 1959, his concurring opinion in New York Times Co..... Sulli"'Jn In 1964, and his dIssenting opinion In Tinker If. Des Moines School DiSlricf In 1969.
Free association and expression: Bo1rcnbl..llt v. United Slates In Barcnbla/l .... United StaleS'" a teACher at VJssar Collego had been held
in contempt for refU Sing to answer <luestions of the House Committee on UnAmeriCiln Actlviti~ (popularly known as HUAC). The questions deah with the teacher's ollleged associations with Communists, The events that pronlpted the case occurred during the height of the " red·scare" In thi s country, Not surprisingly, "[TJhe Court bJlanced Congress' need to Invesligate against the Individual intere)t of the Instructor In privacy of belief Jnd held Ihat the govcrnmentilJ In· terest must previlll :'" Justice Black WJ5 opposed to such Judicial balancing, especially when First Amendmenl rights were at stake, I'le particularly protcsled the majority's balancing in this case Ix.><:ausc the Court had failed to consider Barenblall's own Individual rights and In... terests in the balance: " , , , th., re~1 IfitereSI In 8arenbl;ltt'$ ~I. lenee, the i!llcl\.'SI dthe people i~ II whole in beinll able to Join organizations, advoColtc causes and ~ke poI,t,c~1 ·mi~takes~ without latcr belnll wbjecloo to lIoYCmment.11 penahies for hil'o'lrlK dared 10 think lor Ihemsclves. tt Is this rillht, 10 err politicdlly, which kt'Cps us Sl'onll a! a Nallon,
"Uhlmlucly .Itt the qUCSllons In th it ca~ re,1tty boll dO'Wn to one-wheller we as 11 people witt try fearfully and futilely to prt'SCMl democracy by IIdoptinlltOlatilar' Ian methods, or whCfOer In a(cord.ll'lCe
/10ll/n8er 1. Barnard Is a Brdduate of Blrminsham·50uthern Col/cBe and the University of Alabama School of L'lw. She Is a member of the Birminghllm firm of Johnston, Barton, Proctor. Swcdl/tw & Naff. She is editOf of Outside the Magic Circle: The Autobiography of Virginia Foster Ourr, which l'I.lS published by the University of Al'looma Press In 1985 and, republish!!d in p;1perback by Simon &. Schuster, Inc., 1987.
221
with our lradltions and our Constitution
we will ~ tM conndence and COUraSe
to he
frre.~11
Throughout the 1950$, Ihe Supreme Couri consistently affirmt.>d Ihc g~rn mentis rlghl to rClqulrc IOYJ ity oalhs and Impose restrl cllons and penalties on those who espoused communist beliefs. Juslice Black ju.I as consistently dissenled; he belieYed thaI Ihese loyallyst.'Curity measures Infringed upon freedom of belief and expression al1d thu s vlolaled the First Amendment," He un. • der5tood that Ihe Court's decisions W()re promllted at least In part by Ihe rOO-scare atmosphere of the tim e, but he had hoped Ihat Hin c~ l mer times when pri!Sent I>re5SUres, p~ sslon s. and fears subside, this or some liller Court will restore the First Amendment liberties to the high
led CUff Durr to cross-ex.lmlne tile Justice Department informanl, Paul Crouch, who W.lS to be the ~rnment's star wit· nI_'SS at Ihe hearing. When pressed on cross-cxamlnatIOll, C!Ouch accused Cliff Durr of al1endlng lop.cchelon meetings of Ihe Communisl PMty In NcYi Yotk?~ Durr effectively exposed Crouch's tcsti· mony as nothing morc than self-aggrJI1diling fan!asy, but he was so Incensed by Crouch's accusations thaI he atlempled to attack Crouch, WdS restrained by (cdcr..,1 marshals and suffered a mild heart attack,ll Justice Black was close to Uo!h Virginia and Clifford DUff, by kinshll), by friendshi p and by cerldin shared beliefs in lhe riSh!s that form the hasls for a free and democratic sociely.l .. He knew thill the Durrs were not Comrl'unists but thill they
... in this dissent, he seems to be on the "wrong" side of the First Amendment issue.
prcferred place where they belong in a free society."'D By the Hnle Juslice Black IlCnncd his dissent in B.uenbltHl he had morc than a theoretical knowledge of the harm done by th e red-Kare iltmosphere ,1I1d the government's loyally-security measures: in MarCh 19S4, his wife's siSler, Virginia Durr, was cal!(!(l to tcstify before !he Senate Inlernal Security SUbcommitI(..'C (the Senille's equl ..... lenl of HUACl. The commillee aid not accu5C Durr of being a Communist, but she was asked to Identify certain nam(..'Ci I)c(mlc as Commun ists. She onnounced Instead Ihal she was s!antllng mute and refused to answer any of Ihe Commince's queslions.11 Virginia's husband, Cliff, represented Aubrey Williams, who alS() was called to testi fy, The commlltce permlt-
'"
were not afrilid !O t,llk 10 people of various political pef'!;unslons." Virginia Durr hdS said; hI think Hugo Iholf&hll was very foolish 10 !olke up wilh stranl!ll iorei!$l,ers In Wa sh·
Inglon, but ht! nt'\'er S3ld nnvlhlng to mil about i1 01 10 Cliff clrhcr, As the cold w~r hemoo up, manv people bcc;OIme H frlghrened of 1111'> rcd-SCdttl mQYemenl In Ihis country as the Dntl-Communlsts ~re frightl'f\ed 0( Russb, bul I\ugo ,~r clltlcl1ed me or Clift lor associating with Iorelgners.HlO Hugo alack did ber,lte Vlrglnlil Durr (or support ing '-lenr)' Wallilce ilnd the Progressive Party In !he presiden!ial elecl ion of 1948, bot not because of the fact that the Walloce c;.mpaign anrdcted Communis! sympalhizers. Black simply "thought [Virglnia( was a 10lal Idiot to
leaY(! Ihe Democratic parl~' and .."Ie for Henry Wallac;e, Hugo was a yellOYl-dog Democrat. i'lc thoughl you had to stlck by thc party. , , , NI1 BU!, as the justice hod Insisted In his 8arenblllll dissent, the First Amendment protects nn indlvidvill's right to Nmake poli tical 'mi stakes' without latcr being subJecIcd co governmenIal penalties for havrng dared !O Ihink for themselvcs.Nn Freedo m of the press: New York
Tim es v. Sullivan In MMCh 1960, a f\JIl-llage ndvcrliseml"Ol entitl ed "Heed rhcir Ri sing \biccsH was publisht'(! in the New York Tlmes.1t The ad was spon50rcd by the Commit. tt.'(! 10 Ocfend Martin luther King and the Struggle (or Freedom In Ihe South,)Q The text of the ad accused Ihe Montgomery, Alabama, po!ice or ringing the campus of a local all-black college (Alabama Slate UnivI;H"Slty) afler studen tS(rom the college Ijalhered on the slate capital sleps !o sing "My Country 'lis of Thee:' of padlocking !he college d nlng 11.111 and of arresting Dr. King seven times. Montgomery Police Commissioner Sullivan sued Ihe 11mes for libel, and il Montgomery cou tny jury aWlHded him $500,000 in damilgcs, Iht! full amount clalmt.od." The Alabama Supreme Court affirmed the jury's vcrdiCl,u but tlte United States Supreme Court reversed, The nalion's highest court quO!ed Judg(' Learned Hand's ringing deciMation th,,! the fi rsl amendment "'presupposes tha t righ! conclusions ilre more likely to be galhered out of a multitude of tongues, than Ihrough any kind of au!hOfllatrve selec. tion. To many this is, and always will be, fOlly; but we have staked upon it our 1l1l:"u The Court concluded Ihat Alabama's libel lilW "is constl1utionally ddicienl for failure [0 prO'<'lcle thl! SOlft!guards for {rt.'f..odom of speech and of Ihe press th at arc required by !he Firs! and fourteenth Amendments In a Ilbcl action broughl l>( a public official against critics of his official conduc! and Ihe Court filsnloned; « , , , IIleder;rllule Ih81 p~hlhlts a public ofOclal from recovering damng!!s for a defamatory falsehood rclillins 10 hl~ official cendue! unless he prCM!S Ihal rhe statement was made wllh '~Iual m;dlc~ rhalls. with knowledge rhat It was false or with reckless disICgard 01 wht'lhcr iI was f"lse 01 notH"
July /988
The Court expressly considered the Sullivan case Nagainst the background of II profound national commitment to the princi ple that debate on public Issues should be unlnhlbltoo, robust, and wideopen, and that it may well Include Ye~nl, caustic, and sometimes unpleasantly sharp al\2ck on government and public officlals."u The N,I(;Wal mallce N lI::st lhal the Court d"",isl>d was necessMy to give the freedoms of expression the breathing space those froOOoms need to sUNlve." Despite the Court'S ringing 'M)rds, Justice Blnck chose to wri te SCI)aralcly in concurrence (joined by Justice Douglas, the other Flrst-Amendmenl ab§Olutisl on the Court OIl the timel.N Black agreed that the -"Iabama Ju'Y verdict should be reversed, but on ~b)Olulisl grounds, base my vote 10 ~~ Ofllhc belief Ihal Founl'tmlh AInCIl(IIlICru~ 001 InCrely 'dellmlt' a Stale's power 10 awaid damages to 'p!.bllc officials agalnsl critics oilhelr official conduCl' OOt completely prohibit a Stale from exercising such power .... Unlike the Coun, therefOle, I vole to fl.'YIlf'SC l.'l«;lu~lvcly on Ihtl ground Ihat the Times and the individual defe.,d· anrs had ,10 absolute, uncondiliollalright 10 publish In the Titnt'! adYMisemenl their criticisms 01 tile Montgomery illjencics and ofOcials.N" "I
the FIrSt ~nd
Such a posh ion wa s 1'10\ new for 3Iack; he long had espouSt.>d an uncondltlollal Interpretation althe free press clause of the (l~t amendment.oo He belieYCd ~laJn unconditional right to say wh<lt one pleases about plAlllcaffalrs , , , to be the minimum guar.lntcc of the First Amend· ment:'·' Wha t Is notlce.lble about Black's con· currl!nce in Sulllv,ln is its emphasis on the "factual background of this casC!.""' Ju stice Black descrii>cs the atmosphere in Montgomery in somedelail, and with some familiarity. "Montgomery II one oIlhe localities In
which widespread hostility to dc!sesrega. lion has bel," nun!fcsled. This ~tlhty has somellmes (>Xt(lIIded !tself 10 persons who liWOr dcscgreljmlon, jhIrliculariy 10 socalled 'outside a~;tatOfl,' D lerm which ciln be n\Olde 10 lit ~ like lhe TImet which Is published In Nl'W 'tUrk. The Kille,ly of t('!;flmony to lho.v that Commissioner 5Y1· llVi'n suffered any aClual d~ma8 at all suggests thM rhe.e fc.-elinjjs of host,l lly hoo 11\ leasl as n\lJ C~ 10 do with nmdilion of this half·mllliOlHloliaf ~ldiCt~' did an appraisal of d.. ma~el. Viewed reall"l cally,
The Alabama Lawyer
Ihls !'eCoid lends wpport 10 an Inference thm Inslead of being dllma8~ Comml~ sloner Sullivan's polltlc~l, soclal, ..1Id IInan. clal presllgc hilS Ii~cly bl'Cn enhanCi!d by the Times' publl c~ t lon ."" -"!though Justice BI ~ck expressly tied his remarks about the factual background al the Sull/v:m case 10 the record before the Co(,rl on appeal, ....'(! knO'N tha t Justice Black had Informll1 ion about the racial atmosphere In Monlgomery from sourc· es other than the record on appeal In Sullivan. Virginia Durr, a lifelong devoted cor· respondent with family and fri ends, wrote 10 her brother·ln·lilW faldy frt."quently after Virginia and Cliff mCNCd back to Alabama." Virginia's leiters sometimes were 101'1& and anguished descriptions al the tension and overt violence Ihat erwcloped the Morilgomcry community as il came to terms with Ihe Brown decision, the bus boycott alld Ihe freedom rlders.u Hugo Black's lell(!rs back to Virginia were brief and discreet eJCprcssions 01 (am ll~' affeclion <lnd snll> pets of family news.'. The justice was
much too circumspect to respond to his sister·ln·law's comments on racial strifc In Montgomery, but his response lcnYes no doubt that he recei~ and read Virginia's letters arId lhal from those let· tcrs he knew quite a bit about the at· mosphere of hostility In Montgomery ilt the time of 'he Sullivan decision.
Freedom of speech: Tinker v. Des Moines School District In rink(!, v, Dcf Moines School D/Wict,'J as In Barenblalt v. United Slates, Hugo Black wrote in dissent, But In this dissent, he SC<!ms to be on the "wron g" side of the First I\mendmC!nt issue,.\s In 8.lronblMt and Sullivan, Justice Black's Alabama connection with Cliff and Virginia Durt PrQlfides a clue 10 Blilck's position In the Tinker dissent, In Tinker, a small grOlJp of students (throe children) wore black armbands to their respe<;l ive schools "to publicize their objections to the h(»tlilties in Viet· n<lm and their support for iI trucc,"" learning of the armb<tnd plan beforehilnd, the Des Moines 5cllool prinCipals
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Nadopted a policy tha t any student loYCar· ing an armband to school would be asked 10 remCM:! it, and If he rofuscd he would be suspended until he returned without the armband:,·t The three children wore their armbands to school, refused 10 remove them ilnd ~re suspended. When til<! children, through their falher1, filC!d a complaint in fcderOiI district court asking for an InjunClion to restrain the schoo s from disciplining the children, the! district court dismissed the complalnt.,a When the Eighth Circuit Court of Appeals considered Ihe case en 1>.lnc, th"l1 court Splill.!qUillly, leaving the district courl ruling Intact." The Unl tl'd Stales Supreme Court found tha t the children's wearing of arm· b;lIlds In Ihe circumstances of this case was entirely divorced from ilctUillly or potentially disruptive conduct by those particlp.ltlng in It. "[Although a type of symbolic slX'eCh]' lilt was closely akin to 'pure speech' which ... Is cnlitll'd to comprehensive protection under the Flrsl Amendment ~'n TIle Supreme Court reversed the lower coun, holding !hil! "the prohibition of ellpression of one par·
ticular opinion [here, opposition to the nallon's Il1\'Olvemenl ln Vietnam), alleaSI wi thout C\'idence thai It is necessary to avoid material and subStantial Inlerfer· ence with schl,X:ll'M)r\( or diSCipline, Is flOt constitutionally permlssible:'u Justice Black dissented, in surprising. Iy passionate language.u He objected prlflk'lrlly to the Court's i)e(omlng the ar· biter d disc;lpline in the nation's schools. He held (ast to his belief' that the content of speech n~r must be subject to cen· sor, but he reminded the majority Ih(lt the Court has clearly, and properl y, relalnt.'<l the rlghl to Umlt speech as 10 time and place when appropri(lle. "While I hiM! always b(l!l~ that under the Firsl and Fourtl!(!nth Amendments neil her the Slale nor the Feder(ll CoYem. ment has any aulhorlty 10 ICgulale or cen· sor Ihe cOOlent o( spreeh. I have nlMlr 00IIcvud thaI ~ny rJef5011 hu .. li8hl l0 give >pecches Or eng.1ge In demonSIr.lIlons where ne plea~ and whefl he pleascs."·~ Justice Black found the children's wear· ing of armbands to ha.-e been diverting. although not disruptive, (lnd he disap-
proved of the diversion." The language of the dissent reveals the justice'S strong disagreement wilh the Court's decision; "W Ihe lime has come .... hen PtJplts c:J stJleoiUpportcd schools. klndcrpr1ens, 8,ammar schools. or high !o(:hools. (.'In defy and rlOUt orders of school officials to keel) Ihelr mInds on Ihelr QlrNn school~rk, It Is lhe bellinning ci a new ~Iu· liomry age 01 pe'mlssl~s in this coun· try Iostcred l1t' the ludlc'iary. "In my view, teOlChe~, In stalc<ontrolted public schools are hired to leach thero ... .Nor are public school r.loocnls senl 10 Ihc schools at public CKpcnse to bro.1dcilSl politIcal 0' any other views to educ.uc aocl In/orm the public ... .II may be lhal Ihc Nation has ootworn thaI old((lshloncd slogan Ihal 'chlldren Me 10 be secn nOt heard,' bul one may, I hope, be IJermlut'CIto harbor the Ihoullht Ihal tax· payt:1S Jend chUdrcn 10 IChoal on Ihe premIse Ihm al their ~ge they need to Icam, nOI lellch. "&hool dl sclptl~, like l)artntal diKiplifl{'. Is an Inleg",1 at~ Importanl pM of l!';lln· Ing oor children 10 be llood d l l~ens10 bo bencr ci t l~cns. ~One does not need to be a prophel or lhe son 0( 3 prophet to kIlO"" Ihal aller the Court's holding today some sludenls In Iowa school~ and Indt!ed ;nall !Ichooh wilt be reildy, able, lind wilting to defy their leachef5 on pr.Icllc.tty.1t ordell. This is the mote unfortunale lor the schools since groups 01 studenls .11 over lhe land ~re already running loose, coodVCIing breakIns. slt·lns, lie-Ins and ~.sh-ins. Many 01 lhese studenl 8fOUpl, as Is ~llloo f<lmiliar 10 all who read the newsp,lpet5 and Winch lhe televlsll)ll news progfilll'S, hiM! ~Iready engaged In rioting, property ~i~uft'S, and d(.'Sttuction.
''l\Jmed loose with lawsuits for damages and InlunCllon~ ag.'ln~t their Ic3Chlll'S as Ihey Me here, It Is nothlMII but wishful thInkIng 10 Im~8lne Ih ~I young. Immature students wilt nOI won believe II Is their rlghllOconlrol thn schools rather Ih~f't Ihe rlghl ollhe StDlilS Ihat COIlK:t the taKeS to hire Ihe tC3chers for Ihe !Jenefit 01 the pupils. This CilJe. thcle/o~, wholly wllh· 001 constitutional reasons 111 my ludgment, wbJccts 311 the pul>llc Khools in the coo". try 10 Ihe whims 3oc1 caprices 0( Iheir Ioodt.ost·moothcd, bUI m~bc rw)t thei, brightc~t . sludenls. I, fOl' one, am not ful. Iy pelSlJaded that school pupils are wise enough, ~ wllh this Court's expen help from W.uhington, to run Ihe 23,390 IXlbIIc school systems In oor SO SlJtes.1 wish, there4ore, wholly to disclaim any purpose on my part 10 hold Ihal tIM" "'-derat Con~titutlon compels the tcachets, parentS, and elected school oIfidals to surrender
224
July 1988
control 01 the American p1JbllC ~hool iyslem to public school students. I dIS\ent.~".
A&.lin, Virginia Dun"s f'(!1:uionship with the Justice pr()l;ides a clue 10 Ihe vehemence of HU8D Black's dissent In Tinker. By all accounts, Hugo Black was a controll!!d and disciplined person who believed h\ the obedience of children and the orderly conduct of the nalion's citizenry." He declared in Tinker IhOlt, HIU]ncontrolied and ur)cOl'lholiable liberty is an enemy to domestic peace:'" What thaI stJtement fails 10 acknowledge, h()Y.'CVer, is Ihal the tension beIwccn peace and Iiber1y is chronic arid un resolvable, as lohn SWar1 Mill has ellh(lustivcly wrilll!n..o A nation can have absolute pcOlee only by foregOing liberty, and ilbsolule liberty only by foregoIng l>eace. In the Tinker dissent, Justice Black reveals his (car of unconlroll!!d liberty, as he had earlier revealed Ih(ll fear to Virginia Durr regarding the civil disobedience crus.1dc led by Dr. Mar1in Luther King. Virginia vlsiled her brother-i n·law "during the time 01 ali the rioting and sit· Ins and marches. Hugo was opposed 10 the marches. He thoughl they were terri·
ble ... (lhatlheyJ create a lot of trouble and may CdUse rloting:'61 When the right of free expression too closely threatened orderly peace, lustice IJlack drew back from his absolutist position on free spt.,«h to permit time ilnd place limiTations 10 thOlt right SO that Ihe Iiber1y of frcc e>:presslon \oYOuld not dcstrtr)llhe na· tion's orderly peace.
B.1tcnbliJ U, Sulliran, Tinker: an Ahlbama connectio nl No claim is made here thai Hugo Black borrowed his f 'r5IAmeooment beliefs from his Alabama (riends and relaTives Cliff and Virginia Dutr. It Is clear that Black's views on the first Amendment were molded early, within his own keen mind, informed by his percepliY(! readIng of Jefferson, BlackSTone, Mill and others.· l The justice's earliesl Supreme Court writings show him to Ix! 11 ",1sSion. ate advocate of both a literalist reading of the first Amcndmenland an absolutist application of the amendment.u Nor is any claim mitde here that Hugo Black's friendship and kinship with fellow Alabamians Cltff and V1rsinia Durr Improperly innuenced the Justice's deci· sian on any case in any wiro(. A$ Virginia
herself has made dear, the justice forbid any mention or discussion of any issue
In a case pending before the Cour1. ~I neYef could hOMl OIl?( pow!lf thf04Jgh Hugo because tile last thins Supreme Court lusllces' relaliws WI do Is speak to them about II case. They recuse themselYCS immedlarely If thM haplXlns. If you were (,~r knQNn to speak ro H~80 aboul a ca'il!, tll~t would be the worst tiling thm COuld happell. In fJct, Hugo a~d SISler's dinner panies were pretty dull because nobody could talk aboul anyrllinglery much. They were lltW"Y' !IO afraid it would come up befor!! rhe S",preme Court. We usually t;'llked about rosef and wnnis.. And sometimes Bill Ooulliu WOuld sing hymns. He W;'IS r;lISl'(! very strictly In the chutch and he knew the most marvelous array of hymnS,,·..
NOlWhhsT'.lnding those caveat$, II Is Indlspulable ,hat Supreme Court justices, Uke all hurn","l beings, nellher create r\or apply Throries In a vacuum. Justice Hugo Black's self·educatlon Ihrough his extcnsiw: re<lding provided p.1rtol the material background against which the justice wrote his opinions. His relationship and communication with feUON Alabamians Clifford .100 Virginia Durr, and olhers. also contributed to the background material for those opinions. •
---------------------------------- fOOT~ OT~S ------------------
'Srlltkl~ntl
(cd.l,
~I"SO
/lIK A .nri th<l
Supn:~
COolrr, O,IIJ,d "Tho 1nd,.ldual arid lhe Bill 01 Abo lOlure !Ilgh,...· (196 11 ~I 9lI . 'lew I>, Anlhony, "lu~lce B~k and Ihe FiO).! Amendmenl." lIS Aw.l. Rev . 289. 30' .... I1<n1n. 'Ju~lk' BloIC:k appllf!d lhe Bill 01 Rishl~ ~I~nt~ 10 11M! ~l.Il~ Ih.ough the Founet1llh Amendmenr by the IncOfjl(M.dion lh<:ory. ThI! Supreme COUfI or<enl .... lly.1doplf!d 1oOfI\t. bulllOl all. 01 BI;,ck·llfl. COIPOfdnon /ht(wy. St.ti\dlrroon~. Calriomq,])2
U.S. 046. 68 (l9" 7I(BI&(k. J.. dl~tlngl. 'J 14 U.S. 252 (194tl;jee alio Lnv, .. lB AI~.l.R .....
ill 289·99.
'O"dSI!S. )14 U.S. 81 270 lfoornota omllll'di. 'QulJr~'!lln
I.ew/I, 38Ala.L.ltev. 31295 ~nd n.) 4. 287, 1691 1941J(Black. I" disstlltlnill.
' )12 U.S. ·Id. ~t 301,
'O,llianl In IIIIHO 81~k .ndl/le Supreme CDim ~r 118-19.
'"SN IIt..ner~lIy Hamilton. v .. Hufj'Q 81K~ r/le AI~m.. I'NrJ 119nl. "Set. e,. BI;M;k, Ir , H., Mr F~lMr 11975) at
211.\2
Cr.cH:. The Alllob!otrr.p./rr 01 Vi'SIII" rOller 011" (I<nIJI at "8~rn.llrd
(ed.l, Ollllkflo 1M
M~sk
307.
"OI«k.My~ .. UI . Nn0n81hosewhoc~
b IltSllce Black III:! tho Iolklwlns AlalNma l,wYefl .nd JudlfeS: ludge Melford CI<M:I~nd : Jerome A. Coop.:.: Jvd8t1 Truman M. Hobb~; O,aylon Nabers. I,.; lan18 L. Nor,h; I. Vernon Par'lck. Ir.: arid D~vld J. VaM.
Thv "'/abama lawyer
"Id. al 106. "Id oil t22. "160 U.S. 109. 1H (I 9S9J11I1I.tCk. L dl,senrlnSl. ''If!Wi\. ]8 AI•.L. llev at JOS. "&itt'tlbl.'t, J~ U.S. Ir 1 ~~. 162 "8~"ll'S,. Men 01 rhe 5up~ COUI1'! PtOliIes of 1~ )ujr~J (1978 ~1 26. "OeMi,~. Unlrftl s.r.res, J41 u.s. ~94, 5;19, 581
c.,
(DI;I(k. ,.• diu<!nlins); Dolli,lf{!
In Hu,o 81~k.nd
rhe S~nlf! Coulr .t III. "lI.iIln.llru led.l. Qualde 1M Mi81e CltC~ III 2S4.6(). "Id. ill 261-62. "Id ~t 26)·6S.
t,.
a,
"SfIoI!, Id. 218 . "Id. ~t 194. "Id. ~I 208·9. "ld at 19b. "hlflnbl;lII, Jf>O U.S. It 144. "N_ YOlk 1'mt'J CO. v. 5ulhin, 376
256 I t%otJ.
U.S. 254,
"New YOlk Times Co. ... SuIlJV~n. 144 So.2d 25 (19621. " SuW". n, 17b u.S. 8t 270(qtJOI,nl UnlledSt.les v. Au«l.1red Press. 52 f.S\4lP. 362, l72 (O.C.N.Y. " 511111 ...1'1. 176 U.S. "ld. • 1 27'.1-80. "ld. 91 270. >lld ~I 2".72.
0' 264·65.
"Id il 29J, (1I IIICk . I.. disl>tfltlng). '·Id. at 293. oo{)llII;l/ll ln HulfO Black ,rid tilt S"'~ Courr 11&,22.
I.
" SuIlJV~n,
"Id. " Id.
i l
li'6 29 • .
u.s. at 297 (emphoosls iIdded) .
·'COf.~ 01 Vllsln~ f C\te1 0 ..... ~ 01 which _In pc)Me»1on 01 theaUlhoI. OrI,ln.IIJs on 0I0p0sI1 In the St:hlftlnser LItH.'Y ..1 R.dcllffll ColI*.
· 'Id.
"'d.
"393 U.S. SO) 119691. "Id. al SQ.4. "Id. Mid.
"ld. 1I1.App!!ndu•. "Id. ar 258, 256.
19043)).
________________
"Id. al 50S. "Id. i l 505-6. "Id. ~r 510.11 . "Id. ir 515 (Bl«k, J., dlnl!nllnal. "/d. • 1 517 ~~i iKIded).
"/d. ar 511. "Id. il 518. 522. 524, S2S, 5U. ...se., /lCf)fII~11y 81K"- Mr ")9)
U.S.
II 524 .
'.rhfl.
"Sec rent'fi//Y Mill. On Ub!;l1y.
"Ba..urd (~ .I, O",rslde rlre Mai'c C/rc~ 1119). "See. e.8 .. While, C. £dw~,d, 11N! Ametkan /udif:I.1 T,id/rloo (1976) IIt1J2. "S~ senerJlly lew Ii, 3IJ .-.11.L.Re'I . 2e9. '-Barnald (ed.l, Ours/de rhl! M~~lc CIICI, al
163.
225
Building Alabama's Courthouses by Samucl A. Rumore, Jr.
for the counly and choose il COltn ty ~eill
The following (ontinues a history of Ala路
site. Until a county seal was S('lecteci.
b.ama's ( ounl y courthouses-their origins and some of the people who con-
courts were held in li1evillc. AllhJltiml' thi s community was loca\ecI on tilt' ('xbting line I~tween Cay and R,mdoll)h counti('~. Sub<,(!quent territor/ill chilnges haw PU~hl>d the line I,Hlher cast, and Li n ~ille tod,1V is well within the Clay Coun ty boundary.
Iribul t,>d to Ihei r growth. The Af"b<l m., Law~ , plans 10 run onc co unl y's ~to ry in each Issue o f the nm gllzinc. If you ha ve any pho logr'l Ilhs of ea rl y o r Ilrescnt (01Irlho u5es, pteltse forwiud then) to:
Samuel A.
Rumore, Jr.
Mlgllonlco & Rum ore 1007 Colonial Bank Building
Birmingham, Alabama 35203路4054
In the 1867 election, '<'O\ers had to choose bctw(o(!n Unc.'IIille and the gooIY'lPhlC center 0( the country (or their permLlnent county seat, The center recci\UI the grCil\('r number 0( '><ltes; ho.vcver; ~ cause a certilln l-lollingswoflh WJ1ts donated to the county 40 acres of land two mill'S east of the actu~l geogrJphic center, Ihe county seat was established ;'It lIS present location. (And, as previously nott.'<l, Ihe town waS called A~hlancl ,l
In 1867, construction began on " onestory 1r.lnlC courthouse in Ashland, Pend.. ing its c.ompll!llon CourtS were held in the old lineville Baptist Ch\Jrch. The first
Clay Count y In 1650 AI(looma w ... ~ divided into 52
counties. No new countlt路s were est.lbfi shed until the lI:f'(;on~lruCllon period. Be tween 1866 and 1868 .he legislature
treated 13 countlC!S and among those was Clay County, wh ich wa~ fOlmally established Dec~mber 7, 1666. The cQunty was rlilnlcd (or 5('n1l101
Henry Clay of Kentucky, the (,lnlOUl. SI{lll!Sman and politic., I ICildcr. The county seat Is Ashland, whi Ch WJ~ named In honor of Clay's phlntiltion home tlt'M l exington, Kentu cky. Since Clay County Wil S established in t866, the coun ty Itsel f had no PM! in the e<lrly history of Alabama. The coumy Is located bct'oYCcn Randolph County on the cast and Tallad('g" County on the wesl and WilS formed from terrilory IJk('n from these IWO (Oltnlte~. The "CI eslabllshlng Clay (OUnlY c.lllccl for an election to be held the Or<ot Monday In March 1867 10 selecl offi c.e~
226
Clay County Courlhouse
July /988
COurlhouse In Ashland served the coun· Iy until Dt.occmber 18, 187S, when il fire destroyed the building and virtually all of the coun ty records, The county conlmissioners levied il tax In 1876 for the c0ll5trudion of the second Clay County Courthouse, This building was formally accepled by Ihe commls· sion May 6, 1878. It waSa 1W()-~IOry brick structure thai had an eltternal stairway leading to the upstairs courlroom. This building served the courlly for almost 30
Black s~ nt CNe.r $1,500 setting up his law office. This represented a large porlion of the Inheritance he received from his p.lrents. His office was located on the second floor of a buildi ng adjoining the courthouse square. rhe brand nl.W courthouse of 1906, which rCrnal ns the pressent Clay Count Counhousc, W,lS the one which greeted the flcdgllnglllWycr In his first cases.
Unfortunatcly, a nre in February 1907 destroyed Black's office and law library. Since he could not afford InsU/ance, the loss was complete. N the IJ8C 0121, 81ack left his hometown to seek his fortune In the booming city of Birmingham. That nrc in Ashland changed the course of Hugo Black's I1fc, (lnd the res t of his life's story was playt,<l out away from the ClilY County Courthouse. •
~ars.
The cornerstone for the present Clay County Counhouse was dedicated August 10, 1906. Chillies W. C,ulton WilS the architect and also designed the neighboring Cleburnt! County Court· house whose comcr'Stonc was laid in 1907, Harper and Barnes were the contractors for the Ckly County Co'lfthouse. The building I, very impressive for a snl.lll county seal town, Its extern(ll materials arc ~l1ow brick and coocrere, and its exterior dlmer'l'lion~ are lOS fcct by 69 feet. The struClure Is thtt"e stories tall, and each corner 0( the building has a minor dome. In the cen ter Is a large elevaled dome with a cI()(k facing in each direction; this silver dome is topped by ,1 bell tow<!r. The Unique fea ture of the courthouse, a symboliC statue of " Blind Jusl ice" holding her ~ca l /!~, b mounled on the lower. The CIIlY County Courthouse contains elements of a number of architectural styll.'S. Each of the four sides contains three ar(hl.!d t!ntranc~iIyS. Over Ihese entranceways are tWO Simple Dori( columns; above the columns are triangular pediments. The most ("mous native 0( Clay County must 00 thc late U.S. Supreme Court Justice Hugo lJIack. Justice JJl<lck WilS born In rurill Clay County, but his family moved to Ashlar1d In DecemlJi!r 1889, before he turned four. 11 has been recounted by one biographer that Hugo alack WilS a freq uent spectator at trials in Clay County from the age of silt, obSt!rving and playing the role of litWyer as , boy. After graduating from the UIlIvt!rsity of Alabama School of Law In 1906, lIulIO Black returned home to hang out his 5hingle at the age of 20. Although he was cOl1siclcrl.'<l il bright fclloo.v, most of the cit izcns of Ashland look their legal cases to olelm lilwytUS.
The AlalJ.1ma Lawyt'r
Samuel A. Rumore, Jr., ;5 a 8faduate of Ihe University of NOire Dame and {he University of Alabama School of Law. He served as (oundlnB chairman of Ihe Alabama State 8ar's Family Law Scc!lon and Is In prilclice in 8irmlnBham with the firm of M iBlionico & Rumore.
Introduce Your Clients to a Valuable Service. Il.cll!r them to BusinCM Valuatio n Services for cx pcn determination of fuir Illarket value of businC5Slll, and finan cial analysis and consult:ltio n in cases of:
o &'tatc: planning
o Estat~ sctt l ~me nt o Marital d.issolutions o Recapitalizations o Employee ~'toc k
0 Bankruptcy
proceedings 0 Mergers o r aequisirions 0 Buy-scU 3.gIttments 0 Dissident stockholdc:."f' ownership plnns suits Contact Dr, Jo hn H . Davis, m 4 Office Park Circle . Suite 304 • Binninghnm, Alabatna 35223 P.O. Box 7633 A • Binningham, Alab:una 35253 (205) 87(1. 1026
227
Opinions of the General
(oun~el
QUESTION,
i111 legal S<!rvices renderf.od relating 10 suc h closlod files?
AUorncy 'X' r!:presenlcd the City of ' H' as its city attorn ey for a peri od in clCcess of 20 years. DuritIS the time of Alto.... ney 'X's' scr",ice as a ci ty attorney, It became the custom a nd practice of Attorney ' X' to retain the originals of a ll detds, co nt racts, writings, bond doc um ents, elc. in hiS law office files. On severa l occasions prior to Cit y Attorney 'X's' being di$c h,u ged il $ city att(l rn l'Y. Ihe City ((lun d l o f Cily of 'H' requested that he lurn over to the clly clerk the original of all deeds, contracts, bond doc uments, etc. in his possession to whic h the elty was a party or to which the cil y was obligated or had rlghls o r privileges a rising therefrom, The doc um ents were nOI wrned over 10 the city clerk. Attorney 'X' was dischilrgcd a5 city allorney. At the lime of disch.uge, Attorney 'X' re tai ned pe nding a nd open files whic h ~ re al th at lime being handled by AnornL'Y 'X's' office a nd all dosed fil es whic h had bC<! n accumulated by Allorl"l ey 'X's' (l WCe dur ing his yea rS of st"t yice as elly at· lo rney (or Cl! y o( ' H ~
2. What rig hts of 11OSsl'Ssion or inteR'St due~ the City o f ' H' have in and 10 all origina l deeds, contracts, bond docu· ments or oth er writing to which the Ci ty is a parl y, is obligated or has any ri ghts or pr ivileges arising therefrom which ha ve been re tained by Attorney ' X' in his law office fi les, assuming Attorn ey ' X' has been fully compe nsated for all legal services re ndered as relales to such filed
The city coun cil has requ ested that Au orney ' X' iurn over to the new (i ty a ttor ney aU pendin g legill nles a nd millle rs wh ich were beIng handlf.-d by Anorl"ll."Y 'X's' oHice allhe lime of his disc hal1e as we ll as Ihe original doc uments ac· cumul illed by Allorn t"y ' X' during Ihe yea rs of his represt"n· tatio n as cily attorney. The Cit y has instructed Ihat Attorney ' X' i~ to ,,,ke no f\lrthe r action in the rel)rCSentation of th e Cit y o f ' H' in any past, prese nt or future milile rs. Assume th at Atto rm.."Y 'X' has been paid in fu ll fo r a lllcsal represenla tion relation 10 a ll closed m ~ in his POSS(!SSil)n. Ass ume furl her th at Attorn ey 'X' has been paid in full fo r a portion o ' th e Ol)en a nd pending fil es in his possessio n OIl Ihe time of his discharge and has submItted statenlenl§ for services rerd ered for th e remaining portio n of the open and pe n· ding fil eli in his IlO$$ession whic h have no t been fuJl y satisfied by Ihe Cit y. Based o n th e hereinabove assumed fac ls, Ihis lett e r wi ll serve M a formal rcql.lest Ihal your o ffi ce issue opi nio ns as to the fo llowing inquiries: 1. What rlgh l§ of possession or inl!"rCSI dot"s Ih t" Cll y of ' H' have in and to the conlents of all closed files whic h have been acclIIllulJted by Attorney 'X' during the time of re present,lllon of the Cit y o( ' H' as their City Att orney, assum ing th aI AII(J rI"I('Y ' X' has b~n full y compensated for
228
3. Wha t rights or prlvfl egt"s does the Cil y of 'H' have 10 ex.1mine o r make cop ies of Ihe contents o f all files re tained by Attorney ' X'I 4. Who should bear the cusl of dUlllicatin g Ihe contents o f any files obtained by Allorney ' X' for whic h Allorn("Y 'X' h as been (u ll y pOIid fo r aU professional services rendered in rela tionshil) to such OI)Cn, dosed or peJldil'lg filesl 5. 8.lScd on the (Oleis sel out aboYe, docs Attorney 'X' have a right 10 an iltlorney's lien on any of the fil es retained by his offi( l;':l If the answe r is in th e affirmative jllease stilte to which fil c§ the att orney lien would attach and wha t rights (lr I,ll.!lig.ilil)n$ are Ilwilrded tl) AlIl) rn ey 'X' upon the attach· me nt of suc h lienl"
ANSWER: Subject to th e attorney's lien p rovided for in Code of
AI.lbanm (1975), § 34·3·61, the attorney must provide cop ies of a cliem's com plete file to the client upon request if it is material delivered to th e lawyer by tho cliont or if it conSists of an origina l d acurllent prepa red by the law~r for the client. A lawyer Is not required to prO\llde ca ples of legal analyses to the dlelll un less he has spedflca ll y agreed to do so previously, and he Is no t requIred to furn ish no tes, resea rch a nd inte r-offi ce me moranda wh ich wen t towa rd th e compl la. tion of the fi na l product unless he has pre-viously agreed to d o so. This is 50 whether the attorney (1J YOlunta rily withdr.r.vs from represellt.lti on unde r I)~ 2·111, (2) is d ischarged by his client, (3) co ntin ues to handle the active matter o r (4) concludes lhe mailer and closl..'S the file. Should the allornL'Y choose to maIn tai n a copy of these rlla terials for his records, he mUSl pay fo r the pholocolJYlng expense. Whe re the allorney has received fu ll com pensation for his setvl ces rendered in connectio n with a given file, he must surrender these ma te rials to the client upon the client's request.
July 1988
DISCUSS ION: All of the a~ (IUestions can be boiled doYo'n to one: To whom do a client's OI~ belong, fhe client or the altorneyr I( the mes belOf1g to the client, they must be turned OYer to the client upon request. If they belong 10 the altorney, then if Is fair to make the cllenf pay for a COIJY of fhe me. I( fhe flies belong to the client, It should be immaterial whether the nles art! dOSt.-d or pending. Curiously, vvc h;tvc i.x>(>n l1ble to find almost no guidl1nce on the subJcct. There are no Alabama cases which directly address the issue, nor has the Disciplinary Commi ssi on Issued ethics opinions on polru. The Code of f'roksslonal Responsihility contains no provl. sions addressing this issue, nor are vvc able to locate any per· tlnent oplnlons issued by the ABA. DR 2·111(A){2) provtdes tha t: (1\) tn Gener,ll (z)
t" any (.'Ve"t, a lawyer shall nOl wlthdlilW (rom employmenl unlll he has taken reasoollble )tep5 10 iMlklloreseeable I)rejud....e 10 fishlS of his ellent, ln. eluding giving due notice to hiS clienl, allowing lime (Of emplovment of olher cou"scl. dellvellng 10 the dlenl all l),lpers and property to whi ch the cllem Is enlilled, and complying with ilppllcable laws and rules. lemllhasls added)
Thus, whe thEr the attorney'S employment Is terminated by his yoluntary ..... ilhdrawal under DR 2·11I(C), 01 whether he is fired by his (lient under DR 2-111(B)(2), our Code of ProfcS5ional ResponslbllllY requlrllS that the iIltorney relinquish to his client " . . • i111 papers and I)roperty to which the clien t 15cn tlt (l.'d." Th e Code Is sl lcnt as to whl:!ther an attorney must turn O\'Cr the client's " papers and property" In other circum· stances, as where the altorney remains in the case until ils conclusion Of where the attorney re tires or dies. Funher, DR 2-111(A)( 2) begs the Question by requiring the attorney to deliver to the cliem papers and j)tol>cny H • • • to which the client Is cntilled.~ In Older to determine the client's entitlement, we must refer to Code of A/.1/)mll1t (1975), 34-3-6 1, which proyldes that: Allorneys.at·law shall have a lien on all P.1PCrs and mooey
01 theil dienh In their possessiOf'l for services rendered
to
them, In rcfen>nce rhe,,~IO. and may retain weh p;aj'ICl"!' unlil said claims art satisfied, ,md may apply such nW)ney to the sallsfactlon of said claims. Thi s slil tute, of course, creates 'he 5O-(all(.'(1"a ttorney's lien" authorizing an atto rney to relaill his client's pal>ers until his claim against the client for services rcndmed is S<l tisficd . When the claim is 5<l tisfied, the slatu tory authorization for
The Alabama Lawyer
reten,lOn of the fileS is wrminated. It fo(lQ'NS then ,hat the files must be surrendered to thc client upon request and therefore constitute the clien t's property. There would be no need 10 c reate a sta tutory lien on the attorncy'i behalf if the files In filct belonged to the attorney. The stJ tute funher bellS the Question, hO'WC\Cr, In applying the lien to " ... all pal)CrS and moncy of tlleir client In their possession ..... Nel lhcr this statule nor any case interpretin ll it defines which papers belong to the client. Does this refer merely to original documents which the client has provided the "'Itome'( In the course 0( representOltion, as $OIlle slOlte bars ha-.oe held! Does It refer additionally 10 coun ple.ldlngs Olnd other documents of publi c recordl Or does it ilpply to the entire file developed I7t the attorney! The sole guidance thll1 vvc have becn able to locll1e Is an order of Ihe Supleme Court of Alabama datl.'tI October I, 1984, which prQ'Vides that a lfiaitrJnscrlpt purchased by the sta te (or use of indigent dc(endants in criminal appeals Is lhe property of the criminal defendanl and must be returned to the defendant upon his Il!(IUC'St. By extension we hcrelJY hold I hat the client Is entlt(ed not only to documents which were fu rnished by the clien t to the lawyer in connect on wi th the n:presentation, but Ollso to lilly material s In the file furn ished to thl! attorney on the clien t's behalf. In addition, and by eKtcnsion, the clienl is also cntltled to original documents prep.1r(.od I7t the l;n.vyer (or the client, such as d(.'eds, wills. pleadings and the like, and to other documents of public
re<:ord. Provided that the a\lorney has bct!n coml>ensa tThe "Opinion of the GenerJI ed by the client Counsel" publi shed In the MOlY for services renIssue of the Lawyer erroneously indered, Ihe matedic;t1ed tha' John A. Yung. IV, and rial s In the file "I(!)( W. J3c kson were the au thors. that are furni shed Former actinll Assi stant General by or for the c llCounsell·tolly L. Wisemiln Issued Cttt lire therefore Ihat particular opinion. the client's IJrOPerl y and muSt be surrendered to the client upon request. It follows that if the attolney chooses to keep a copv of the materials. II must be at hl5 own expens@. Where the a\lorney has nOI ~n fully compen sated, the clien t's possessory lights to the file arc subject to the allorncy's lien stMulory cre;l ted by 5 34·3·61. The Inle'l)rctation of thaI statute is a mailer of taw rather than of ethics and Is nOI one which we are empowered 10 addfes~ •
229
Young Lawyers' Section
D
uring Ihc past bar year, I h~vC! had the privilege of working wiTh many young
auomeys dedicated to the betterment o( their profession. I express my lippreclatlon to cach young lawyer throughout I\I"oomll fOr the privilege of serving as presidcm of Ihls young
lawyers' St.-'dlon. At the annual meet· ing in Birmingham Ihls month, my of·
frdal involvement with YlS eoos, but I leave Ihe office with many fond memories. The achievements of thi s section during the past year were made possible by the hard work of mMy pcrSOrlS, most notably the offl· cers and executive commluee nlem· bers who arc Gunlcr Guy, Mont·
Rowe, Birmingham , CLE; James Sas~r, Montgoml!ry, senior bar ad· mlnl strative liaison; Steve Shaw, Birmingham, Lnw Week; Reoocc,l Shows.Bryan, Montgomery, publica· lions; Amy Slayden, Huntsville, Con· stltution bicentennial; and Duane Wilson, Tusc.. loosa, disastCr legal assistance. I extent! thanks to Slate Bar Presi. dent Ben Harris and Presldcnt-clect Gary l'luckaby (or Ihelr encouragement of YLS aCIII'i lies and 10 the board o( our commissioners and the 51,,(( o( Ihe Alabama Sta te Bar for their continuing support. I t.l ke this oppor· lunity to mention several highlights of the past yeM.
gomery, prC5ldent-elcct; James Ander· son, Montgomery, secretary; Percy
Youth judicial Program
Badham, Birmingham, treasurer;
This project COrlilnucd to nourish under the leadership of Keith Nor· man, This year. over 600 high school students and approximately 80 allorneys were involv(.od in the program. Forty-cight team$ from I J different high schools In Montgom(!ry, Birm· Ingham, Auburn, WetumpkA, Doth· an, Pra1tvllle and Opelika pJl1lclp.ltl:.>d In the mock trial coml)Clition. The program utilized the YLS videotape for recruitment and preparation, and we congrc1tuhM all participants In the program, especially Ihe first place plaintiff's tcam from Woodlawn High School in Birmingham and the lirst place defense team (rom 00lh,1I1 'S Northvlew High School. The Wood· lawn students were assiswd by Ihe Idill advocacy progralll of Cumber·
Claire Black, TU$(aloosa, Immediate past president; Robert Baugh, Birm· Inghdm, grants; Pr(!SIOn Bolt, Mobile, annudl Scminar-on.the-Gul(, social ar. rangcments; Laura Crum, Mont· gomery, bar admissions; Tilylor Flow· ers, Oothiln, local bar lIaison·SQuth; Pal Harris, Montgomery, chilrl IldvoCilCy; Tom Heflin, Tuscumbia, local bar HaisolHlOr!h; Sid Jackson, Mobile, annual Scm l nar-on.lh~ul(, speaker and program: Rick Kuykendall, Blrm· ingham, ABAlYLS Liaison; Warren Lilird, jasl>CI, issues; Terry McElheny, Birmingham, meeting arrangements; Keith Norman, Montgomery, Youth Judicial Program; John Plunk, Athen s, uy·lnw$; Jamcs Rea, Birmingham, al· wrnil1C dlsputc resolution; Steve
230
Charles R, Mi xon, Ir, YLS President
land Law School, and the Northvlew students were k<d by lexa Dowling o( Dothan. Bar admissions The YLS again sl>onsored rwo b;rr admissions ceremonies in Montgom. ery. Laura Crum once again did an outst<'lndlng job in coordinating these events. In October, Rober1 " 0 1lS, cotJnsel to The University 01AlabJma SY5t~m and a former president of the YlS, spoke at Ihe luncheon following lhe Inductlorl, In May, we were hon· ored Ihat Major General RolJcr! Norri s, soon to be general counsel o( the Alabama State Bar, servoo as the speaker. Annual Seminar·on·tht"C ulf With thl! leadership of speaker and l)r(lgrOlr'll chair Sid Jackson and social arrangements chair PreSion Dolt, thl$ May seminar at the SMdeslin Beach RC50rt was again wdl attended. Wilh the cooperation of the Alaoamil Bar Institute (or Continuing Legal Educa· tion, the seminar prt.'SCntcd six hours of CLE Cr0011. In addition, Common. W!!ahh Land Title Insurance Comp.lny sponsored the annual go'l tournament. We were provided with cock·
luly 1988
1984 ed. On~ 100sele~( w)l lime, approx. 1,162 paJ.\('$. tl)85 SUfll>~1" $24; 1987 SUI)plement 126. Current umuhur.'C supplemem pro· vlded free "ilh 1>Ultha.'iC. $90 piuS $4.7S s hipping a nd h :U1dUn~.
m ln lml~llIACOS t
to the com· And stm.....'lI auonlt.')'S are leanllng ho\.\' 10 beneSt !'rom th l~ trend.
Jl~ny.
tall receptions by the Birmingham Orms of Pittman, HooM, Marsh, Dutton & Hal· 115 and Emond & Vines. The COurt ~port·
Ing fi rm of Foshee & Turner of Birming. ham sponsored a Sa!Urday aftcmoon beach party. A traditionill highlight of the seminar is the Friday evening l>arty with music; provided by ''fhe Soul Practi· tioners N of Birmingham, coml)()sed of Bob Normlln, V~ughn Blalock, Jim Bur· ford, John Chiles, Charlie Beavers, John Hall and Mike Wright. This p.lrty was sponsored by the Birmingham firnl of I h:mingcr, Burge & V.ugo. Our thanks to all .m~ndt.'e5 and, panicularly, 100(" very generous sponsors.
Guide 10 Pe n s ion and Profit Sharing I'laos : Thxatlon. ScIcctJon and Oeslgn c~:unlnl'S nil the IntpoMllnl Call toll-I'rl'C for a 30 dJ)' aspt"Cts of structuring ~lld rlsk.free ex:tQllnallon: :tdmlnlsterin& pensions. profit sh:lring or other de· 1-80().525-2474 fcrlt'(t ('QllIrcns~ t ion pl:Uls. In COIOI'!HJO. c:tll colleCt: '577-7707
Continuing legal educa tion Throul!h th(! h(ltd work of chal rmun Steve Rowe of Birmingham, the Young law~rS' Section ag;lin sponsored the Bridg(!'Ihe-Gap ~minar in March. The section Is also sponSOring the NUpdatc '66: Recent Dcvtlol)ments in the lawN seminar OIl the annual mCt!tlng in Birmingh3m this month. This {:\'Cnt, expected to draw a very large cfO'oYd, will include legisll11ur(! update, sports law, recent de· clslons of the AI ~ b(lma Supreme COurt, federal S<!ntcncin~ gu idellne~, de<:eptlvc tr.lde practices act and Model Rules of Professional CondUCt. Other convention highl ighls In addition to the Update '88 Seminar, thi! YLS will hold its annual business mCt!ting Thursday afternoon of the annu· al meeting. We enCOUf,lge the a\lend· ance and I),lftkipi,ltion of 311 young lawyers. Thursday {:\'Cnins, the YLS, in conjunc· tlon with the 8irmingh .. m Young lawyer:;' Section, will host a parly beginning at 9 p.m. at the Birmingham Botanical Gardens. The cost is $7.50 per perwn, .. nd the entertainment will be provided by "The Soul PrilCtilioners." My involvcmcm In the YlS has been one of the highlights of my legal career. I strongly urge eilch young lawyer to 00come more acli'vt! in your profession. 1 Invite you to COntact Gunler Guy, the new president o(YLS, 10 volunteer your time ,lIld energy to your I>rofession . •
The A/ab.lma Lawyer
...'
Guide to Pension and Profit Sharing Plans
Providing Ihc Power of tn(urmluion
b)' D:tvid S. Dunkle
The fu ture of social SC(urhy Isn't SO S\!Cllrc. Informed eAlI)Io)t'l'S arc pl3nnlng their futuf'C$ l1Iore Cllrcfully. l1\t best
D:wld S. Dunkle Is ~ rtlC.lIl1>er of the Al:th:una and Nonh carolina st~1C hars as well as the AIM St.'(tlon un 1!cmlon and cmplo)'CC beneRt.~ committee. He Is a prindp:tl ill the law 8ml of Lc\\1s Manln /JumclI & Dunkle l'rofcsslon:11 Cor-
:md hrlghtest arc demanding more nut of IK:nsion :Ind profit sharlnlt pbns. Sman cnlfJloycrs arc looking fo r rrc,ltil'c ways 10 m:o:hnl/,c em- porJtlon In IlIrm lnRh:uu, plo)'t.'e bene6ts \l'ttUe sllU Alah;ul1a.
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Legislative Wrap-up by Robert L M cCurley, Jr,
The 1988 regul(lr session of the Alab.lma Legisl<1IUre ended without passing lhc gcneral fund or special edUCiI!Ion trust fund. Consequen tl y. there will be at least one, and probably more, speciJI sessions this 'y'\!;lr. Duri ng the regular session 690 Senate bitls and 1,061 "louse bil ls wcre introduced . Only 387 of these bills became law. Of these, 320 (83 percent) 'NCre local acts or limited In appliCil!ion. The followi ng Is a r(l\llew of some of the rcmili ning 67 bills which have statewide concern.
Redemption of real property (act 88-441) This 3C1, drafted by the Alabama law Insti tute, revised the law with rcspecl lO who may redeem property that haS been foreclosed and in what priority. II further provided
for what are allow.lble charges. It leiJ\leS Intact the present one-year ri sht of redemption. This act Ilecame effL'Clive lanuary I, 1988. Leg.. 1 m .. lpracticc (act 88-262) This act revi~'$the "legal 5c",lce Llabllhy" law by establishing slandards of care and requiring the plaintiff 10 prove thc lawyer vlola too the applicable standard. Also, under the terms 0( the act, a two-year statute of limitation is (!Stablishctl. In the CYCnI that an act or omission could not h~ been discoYered wi thin the t\\'O'year period, the plaintiff must file the action within six months from the date of dlscoYery of fact.s indicating an aCI or omission by the at· torney. ~r, in no e-.t"mt may an action be commenced morc than four years aftcr the act or omission occurred. rhe bill furtner provides for seulemcnts of disputes bet'NCCn a pcoon and an attorney by veh.mt,l ry Mbltration and sets out the procedure for the arbi lr<ltion.
pay of 50 times minimum pay ($167,50), This has been revised to 30 limes minimum pay ($100.50), Also, personal property exemptions found in lila. Cock § 6-10-6 ~nd 6·t0-37 have been revised (act 88-294), The leglslalUre fu rther provided for lntcrpret!!(S to be provide(! during judicial pJl)Ccedlr\8Sfor persons dclcctivc In speech or hearing (act 88·538), Fiduciaries may make certain elections 10 dividll or kl!t!p SCI).l/'i1t(! a trust or ~t ale In light of the generation'sklpl)ing transfer talC with rcsl>ectlo transfers In trU5t lind decedents dying on and a(tcr Januilry 1, 1987 (act 88-]40). Ar'l',()OC who Intentionally and without authority dlYerts utility services miIY be civilly liilble for three tlmc§ the loss 0( revenue plus the cost of ropalrs and attorney's fees. This act also provides that anyone convicted under Ala, Cooe S 1)-.'\.8-10 shall "conclusiw ly" be liable under this act (act 86-542). in the criminal law area ~rill bills WCrtl P,lIs<'-'d, The judge may sentence a convicted defendant to "boot camp" operated by the Dep.lf1!nent of Corrections (ael 88-163), Before a criminal defen<l,1nt whO has bct.'n tried and found not guilty by reason of insanity and committed 10 the cu~ tody of Mental Health may be released, the department must al>Pl'ise the court thatth!! defendant no looger is i'TICfl" tally lit and the Courl must set a hearing before release (act 88-581). The legislature amended Ala. Code § 13A-3·1
Olhers of senera l interest The Legislature rema.'l.>d the intcJmt limit on credit cards (act 88·80). They also provided that mortgages which are placed on I>ropcrty are valid, and title will not di~t ffQm the mortgagee unli! all secured obligations are paid out and there is no conlmitment or agreement by thc mortgagee 10 make advances, incur obligations or otherwise 81\16 value under any <lg~ment (act 88-87). Ala, Co<lc § 5-19·15 regarding garnishments has been revised to pr(1o'idc thilt garnishmcr\ts under the "mln l<ode~ will be thc same as that provided other g.lrnlshments, Previously II g.1mlshee WJS guar.\Il tccd a minimum take-home
2J2
Robert L McCurley, .r., Is th$ dlf9C1CH ol the Alaba~ l.ew InSlllul8 at the UnlvOr$ity of
MIasma. He received his
undergraduate .nd law de, ames
',om the UmwJIIlty
luly 1988
to redefine the defense of Insanity to ': ..the defendan~ as a resuh of scvcre menldl disease or defect, was unable to ~mpreci.lte rhe nature alld <Iualhy of his acts ... , .. (Ilct 88· 654). The Institute als.o pfoPO~cd to the Leg. Islature a rtvl slon of the "power of salc" luw. This bill p;l ~wd the Legislature only to receive an eXe(:ut ilJe amendment which ef(cct!\lCly vetoed the bill since It was returned to the leglsl,l1ure with only OIlC day remaining and the Senate locked
In a filibu ster. Also Introduced wa s II
Tr.KIe name law which p.lssed the Senate, but time fan out before It could be con· slderoo In the H O~' 5e of Representiltlves. We arc vtlry ilpprcciarivc of the 1<lW firms that loanl>d a lawyer to work wiTh cerlaln legislative committees. Special thanks this year go to Balch & Bingham fOf Ihe 10iln of Kclth Norman who 'NOrkt..'d with the Senate Judiciary; Rush· ton, Slakdy, Johnston & Garrett for the loan of I tolley KllONles who was counsel
WE WANT YO U TO JOIN OUR I I I ,(
to the House WJo(S nnd Mt!ans Commi t· tee; and to J{lckson Hospilal for the loan of Gregg Eycrcu who asslSled the "louse of Representatives Judiciary.
Annual meeting of the Institute Thl' annual meeting of the Alilbama
Law Institute wilt be held Thursday, July 21, 1988, ill 4 I).m. in the Avon room of the Wyn frcy Hotel during the state bar annual meeting In Birmingham.
l !
The Committee on Lawyer Public Relations, Infor mation and Media Relations is instituting a statewide speaker 's bureau to provide speakers for civic organizations, schools, churches and other in terested groups . The commi ttee will compile a list of all lawyers in the state who are interested in serving on the speak· er's bureau and will endeavor to provide speakers from the same community or general area from which a request for a speaker is .received. All requests will be handled through the Alabama State Bar Headquarters. If you are interested in serving as a member of the speaker's bureau please fill out the following form and re· turn it to the Alabama Siale Bar, P.O. Box 4156, M ontgomery,
Alabama 36101.
SPEAKER'S BUREAU APPLICATION Name ______________________________________________ Firm Name (if applicable) _________________________________
Addre .. ___________________________________________ C ily __________________ State'______________ Zip _________ Telephone ___________________________________________
I
Please list subjects on which you are willing to speak: 1)
2) I
3)
I I I I I I I I
IL__ ____ _____________ _____ ______________ __________ JI The Alabama Lawyef
213
Committee News Insurance Committee AIM is orga ni:i:cd A bo..lrd of directors has been e5lablished and officers elected (or the bar's capliYe Insurance company, kn(J.yn as A1M-.NIOmcys' Insurance Mutual of Alabama, Inc. The first meeting of the bo.Jrd was held May 19, 1988, <lllhe bar headquarters. The directors present IoYere: Claire A, Blnck; Regin(ll(! T. H(lmncr; Ben H. Harris, Jr.; P. Ri chard Hartley; Henry T. I-Ienzcl; l. Tuml{ml Lee, tit; Charles H. Mo~s, III; William D. Scruggs, Jr.; Jere C.
Segrest; Harold l. Speake: Norborne C.
Stone, Jr.; and CaU'Iy S. Wright. The bo.lrd r,ltlflcd articles of incorporation ilnd ilPproved bylilws for the new corporation. In addition, the (ollowlng officers were elected: Ben H. Him is, Jr., chairman of the I)Qard; Henry T. HQn:tcl, I)resldent and vice chairman; Cathy S. Wright, vice president; Charles H. Moses, Ill, secretary; Reginald T. Hamner, treasurer.
JJek Stevenson and Eric Carlton of th~ Burr and form"n (irm werc rct:llnl.'l:l as leg;J1 counsel to h;mdle AIM'slncorporation and obtain Ihi! Ai;lbam;'l DejXlrtmcnt of Insurance's and thl! Alabama Securities
Commission's approvill /or AIM's pro-
posed oper;lIiorl and capitaliz<IIion . McNeary If'l'jur.mce Consu hing Services of Charlone. Nort" Carol na, which has
advi$ed several olher bar associations In the startup of their captives. has been in\()Ived In the Initial organizaTion of AIM
and will continue to serve as consultant throughout Its early operation. The presem timetable calls for AIM to seek approval from the Dcp..lr1ment of Insuram:e and the Securities Comnllssion In time for a July 23 presentation 10 bar members at thiS yetJr's annual meeting. •
. BN
NOTICE
NOTICE
Effective May 13, 1988, legislative ad 88-660 transfers the responsibilities previously delegated to the State Board of I lea llh, by section 32·5A· 194 of the Code of Alabama, to the Department of Forensic Sciences.
To l awyers Negotiating Settlements of Cases Submitted to the Alabama Supreme Court
All inquiries regarding the program (chemical tests; i.ldlll is!>ible as evidence; procedure for valid chemi c., 1analyses; perm its for ir,d ividual s per· formin g analyses; persons qualified to w ithdraw blood; presumptions based on percent o f alcohol in blood; refusal to submit; no liabi lity for technicia n) should be directed 10: Dr. James Buttram, Dep.lnmenl of Forensic Sciences, P.O. Box 231, Auburn, Alabama 36830. Phone (205) 887·
It is the cou rt 's currenl poli cy Ihal if fhe parti es arc negotiating a settlemenl of Ihe case afler submiss ion, they should notify the clerk in writing and request that the submiss ion be suspended, pend in g sa id negot iations. If one of the parties notifies the clerk that a seulement cannot be reached, the case will be resubmitted. Also, if a party objects to the suspension of submission, the case will remain under submission. No apl>eal will be di smi ssed afler circulation o f a proposed opi ni on.
7001.
- Robert B. Finley, staff assistant to State Health Office r
234
luly 1988
MClE News 25 or more credit hours during the calendar ~<ear 1987;
deadline had passed MiHCh 1, 1966;
(2) Declined to wal~ the ta te nling
(11) 'Wtoo to an)end Regulation 5.110
fee of two attorneys for ClE reports received after Mond"Y, FebrUilry 1, 1968;
Any report sen! by cerl/fled,
read as (ollows:
registered or exprt!ss mall of Ihe Unlred St:lICSPos/ill Service and paslmarked JanuMY 31, or Ihe next business day if January 31 is a Sa wrday or Sunday. will be considered timely filed . Al l others must be accompanied by the S50 late filing Icc In the (arm of il c h~ck rnildc P'ly.. ble to the Alabama State Bar. Reports nOI so accoll'lP'lnled will be rerurncd to the atlorn~'S filing them, and those attorneys will be deemed not in compliance until lhe fee is P<l ld.
(3) ApprOllCd an amended deficien-
cy plan which allowed for the eaming of credits after the Marth I deadline on the basis tha t the requcsllng attorney was unable 10 earn the credi ts lisled In his orIginal defiCiency plan because of Sickness; by Kei th B. Norman
Director of Program$
(4)G ranted a request for rille amendment to the 1967 reporting form on a one-Ome basis;
a request for a refund of the late filing icc for a report received after Monday, Febru<lry 1, 1966;
(5) Denied
As dlmetor of progr;JffiS for the AlabAma Stmc Bar, one of my (lutll,lS will 00 to <M!rsee the opel'{ltion of OlJr bar's mandatory elE program. My usc of the word "O\o'efSee" is intentional: the mandatory e LE program i$ essentially scJ(-operatrng
thanks 10 a very fine commission and ad· ministrali'-'C aSSISI<I!ll Diane ~Idon . Also
much prodsc is due 10 Mary Ly" Pike who guided !llllndOllory elf (rom ils Inception through lis Implemcnl<l!lon ilnd who is
largcly responsible for lis success. hldeed, ~ iJffl fortunate to have a program tha t Is admired and respected by b.1r associillions acrOSS the country. To M3ry Lyn, Diane and present and former
members of the Mllnd:l1ory elE Commission, I express my sincerest appreciation for their work In dcvulol)ing and Improving this program ovcr the last six yc.lrs. Their sense of r(.osponslbility 0100 diligence has made my job easier and no doubt more er'\jO)'ilble. At its meeting in Montgomery April 1, 1966, the Mandatory ClE CommissIon: (1) Rec:ogr'\lzcd the Issuance of 1,061
certificate'! to members earning
236
(6) Denied apl)rovat for II seminar
on AIDS bec~use thc program was not design(.od primarily for attorneys and did not focus on substantive law; (7JApl)roved II seminar in Albu· querque, New Mexico, for 6.0 hours' ( rooit, specifi cally for those topics l.lusht by attorneys; (8) Declined to IIpprO'o'C an ap. praYed sponsor's seminar or) leg.11 services milrketlng because It did nOI focus or) substantive legill IssueS; (9)ApprOl.«i for 4.0 hours' credit a seminar Or'\ financial planning and the praClrlloner, sponsored by the Universi ty of North AliIbama Qlfice of Continuing Education; (10) API>roved, retroilctivel y, a 1987 program, for which Ihe approval
(12) Declined a requen for W<llycr of
1.2 hours of Cl E credit. /4J Its May 20, 1966, IT1Ci!ting in Montgomery, the MClE Commission: (1)
Approo.«! three comparaciYC law I)rograms, one submitted by Ihe Unlycrsity of Mis5lsslppl School of t.1W and two by the AmeriCill1 Bar Association;
(2) T.lblcd a requcstl'(!'NO a1torneys (Of credit for presentations made at a pragr;lm nOt designed pri. marily for attorneys. pending receipt of an C'\i~lualion summilry; (3) Tabled a request by an attorney for al1endance of il mixed iludience seminar not designed primarily for aUomeyt pending receipt of (In cwlualiOfl summary; (4) Denied appfO\lCd monsar 5Til t u ~ to an organizatlo'l which markets its le811 I-orienled programs primarily 10 non-bNyers. •
July 1988
Recent Decisions by John M. Milling. Ir., and David B. Byrne, Jr.
Recent Decisions o( the Alabama Court of Criminal Appeals
Proof 01 biilS Jones v. Stale, 1 01\1, 539 (A1)rll 12, 1988)-Thc Alabama Coun or CrimInal Appeals, In a unanimous opinion, reversed the conviction of J~ because d the trial coon's failure to allaN defense coonsello p~ bias Ihll)Ugh prior inconslslenl statements of the witness. Judge Taylor critically noted: .. ... GIl.'iI1 latitude Is to be al. lowed an .tCcus(.'d In an clfon to shOoY the bias 04 an ImpOrtant wit· ness as to conte§lOO Issues In 11 erln'INI ca~:- St. /OlIn \I SliJIt', 358 So.2d 812, 816 tAla.Crlm.App. 1976). "The trial COUrt ha1 \'Cry lillie, II any, dis.clC1lonory right 10 ClIClude frum eYi· dcnc:e an Importanl (aci showin", Ihtl bias 01 a wllness." ProctOf v. Sl.lle, 331 Stl.2d 828, 830 (Ala.Crlm. App. 19761. Ordinarily, the wif'( 10 show bia~ on Ihe l>art or a wilncss Is 10 directly ask him his feelings regarding the accused. If the witness denies bias, then trial defense counsel is enlitled 10 pl'CNC! fact s 10 show such bias. PiJSC v. S!.lte, 487 5o.2d 999, 1003 (Ala.Crim. App.1986); See also C. C.lmble, McElroy's Alab.1'fl.1 Evidence, 5149.01(1) Ud ed. 1977).
The AI.lbama Lawyer
In jones, the lrial court refused 10 .. llow the defendant the opportunhy to independently prove facts tending to show bin on lhe pari of the 5lat(!'s wllness on The ground Tha t the defense wiTness's Testimony v.'Ould be "rank hearsay." The law is [0 Ihc conlrary; the general rule Is ThaI: Prior inconsi~('nT ~Tilt('fTlenlS 04 a witness m..lde OOJI d CWrI are admisSiblE' In eYldence for the IMp!)§Il 01 showing ThaT the WITIlC'IS Is no! w()f. Thy 01 bt!lict-Th~T Is. fof !mpe;w;hmen! purposes. Such wk/toncu Is nor d .med as he.ltWy. (en11)hasls addoo)
Exp.lnsion of automobile exceplion 10 warrant requirement Slanfieid v. Slate, 6 Olv. 300 (April
101m M. Mil/Ins. ,r., is a member of ,he (Irm of Hill, Hill, Cortcr, France. Cole & alllck In MOntgomery. He /s II gfadu;}!e of Spring Hill Col/egc and thc University of Alabama School 01 law. Mil/lnB co.oen the ellIlI portion 01 fhc decisions.
26, 19881- The Alabama Court of Criminal Appeals. through Presiding Judge BooNen, affirmed the conviction of the defend"nt for lro(flcklng In cocaine and OTher controlled slhstances. The defendant argued 0fI appeal ThaT Ihe w.urantlcss sean;;h of his person and his aUlomobile were illeg.ll and in violatiOfl of his Foorth Amendment rights. Judge 8o.vcn·s opinion gives an excellent analysiS of the" exp.1Ilslon of The automobile eKCepT.ion TO the warmnt requirement since Qmoll II. United St.lle$, 267 U.S. 132 (1925). In the Ollinion, Ihe coun observed Ihat the posH982 supreme coun decisions Irwolllins the automobile exrepllon h3\E sent a clear and unmi5lak.lble signal; "No wamant is needed
Dallid B. Byrne, Ir., is a gtaduate of the Un/vcrsity of Alabama, where he received both his undergfcldU.1Ie clnd law cJesrecs. He is a membt-r of the MOn/somery firm of Robison & Belser and covers the crim /nal portion 01 the decisions.
237
even absent true ell igent clrcumstances ... Probab le cause Is suft'lelent In all Inst.lnces to Justify a warrantless search of a -..eh ele .... " Th e Ci\$e~ of United SIMes v. Ross, 456 U.S. 798 (19821, and United Stales v. Johns, 4 69 U.S. 478 {1985}, arc "grounded pri maril y o n a 'lesser expectation of privacy' theory and •.. abandon(edJ C\lCn the pretense of e)[igent circum5tilnces attributclble to the continued mobility of the -..ehide:' The court of cri mi nal ilJ)peals, based upon tha t authority, held as follows: ... CenCt;1l1y, II vehicle MIIY I)e on ploh.lble cause wl!hout a warr.ln\ and without a dcmonStr.ltion 01 3rly exigenl cl rtumst;lIlCCS other Ih~n ~an:: hl!d
Its own Inherent or ready mobility. The l'XCcptlon to thi s general rule applies whcr' tho ~hlcl(! Is IOC~ t!!d on I>fl'lmIses wher!! Ihe del~fldant ha~ n Icgill_ mate eltpeclil\lon 04 privacy."
Illegal de tention wi ll not support conviction of escape (ro m cuslody Vickers II. S!.l(e, 4 Div. 944 (April 26, 1988)-Vlckcrs wa s convicted of escape in the third degree in viol"tion of § IJ-A10-10-33, ( M e of AlaQam" (1975). On oppeal, Ihe defendant flrgucd thm he was Improperly detained for th e act of speeding with a "suspicion of DUI" and, theI'Cfo re, was improperly convicted of escape in th e third degree. Escape in the third degrt.'t! is commil1l.od Where i1 pelWfl "escapes o r allemp ts to escape from cus-
tody." In reversing the conviction, the co urt of criminal <lI>lJeal s relied on its decision in Hays v. City of /acksonville, 516 5o.2d 892 (Ala.Crim.App. 1967). Judge M CMlllol\ reasoned that "the 1»tice have no authority to take a motorist into custody and then require him 10 go to the 10<;011 stillion house When lh,lt motorist has committed ~ misdemeanor traffi c violation bur Is willin g to sign the summons to cour!." Sec also Morton II. Stale, 452 So.2d 1361, 1364 (Ala.Crim. App. 1964). Vi ckers was under arrest only fo r speeding (a misdemeanor lraffic violati on} wh en he ran (rom th e car; thus, he was not pro perl y in custody ilnd could nul be COnviC1L>d of escape from the custody of a I>olice office r. See also Elf pane Talley, 479 So.2d 1305 {Ala. 1965}. Ri ghi of defe ndant to have 'sa mple' fo r independent testing and ana lysis Moton II. SIMC, J D iv. 765 (April 12, 1966)- Th e Alabama Court of Criminal Appeals, in a unanimous decision authorl,'(! by Judge Tilylor, reversed the conviction of M oton for promoting prison cOrwabar\d iI\ the second degree. a,l tiPpeal, Moton contended that the trial court erred In denying his motion to obtain a sample of the COlllrolled substance Jild ha-..e it independently analyzed at Stille Cllpense. The court of crimin!!1 appeals It.wrsed for the failure to permit examina tion of the cOntrolloo Substi'lnce In accordance with Alabama Rules ofCrlmInal Procedure Temp. 18.1(c). S('{' also Ware v. Stale, 472 5o.2d 447 (Ala.Crim. ApI'. 1985).
LOSING YOUR TITLE CAN REALLY HURT Jusl as a prizefighter trains hard for the title fight. you've worked hard to purCh..iSC your propetty. And you wouldn'tgive it up without a fight
When your propelty is insured wilh Mississippi Valley Tille lnsurnnce, that title is backed against all challenges to ~
ownership, making any tille fight a sure win,
MI.. b.lppl VaillY Tilil
·e
Stalt! Officl'l324 Nqt1h 21s1 SI.lI3irm;/lghml1. AL .15203 1M1 Free·1I81J0184.'J.l688I'fi:Mj(lx , //32MJ919IA M blllfSO/a 'I'll//' OmpflllY
236
The law is cle:" in Alaba ma th at a de!fenda nt is clltl tl,..:! to h~ a sample of the al leged contr.lband for tcstillg. The words of the Supreme Court of Alabama in Warren II. Stale, 288 50.2d 626 (AlII. 1973) (Ill;! as follows :
"We think th(l( to derly 111m thiS right pfQCel~, espedally where hi5 motion to produce was made Wl!lIln adv,ln(;e olthe trial SO (hat II cou ld have beefl ruled on bot the court without cau sing any uflduedelay irl the Irial:'
Is 10 deny him due
More rccen tl y, Rule 18.1(c) of th e AlobamJ TCl'nlx)rary Rules of Crimillal Procedu re provides specifically as follow s;
luly 1988
"DQcurrn:nIS and Tangible Objecls. Upon motion 01 lhe dlofendanl, lhe coon shall ordcllhe dl~1I1c1 attorney 10 pelmlt the deit!ndant 10 ~nalyle, In. spect, and copy or photosraph books, p.'ll)(lrs, docum enlS, l>hoIOgl;lph5, Ian· glble oujl'C\S, controlled s(lb,t.1nct'J, buildings Or 1J1.~C5, or IXlnlons 01 any of Ihe~ Ihlnss. which 3ri! wlthtn Ihe IlOS)Cuion, cUltody
01
contlOl of Ihe
Slille""w Recent Decisions of the Supreme Court of Alabama-
Civil Attorney/client , , , A labama Code of Professional R~ sponsibility d oes nol create private c ause of aclion
Terry Cove Nor/h, Inc. v. Ma" & Friedlander, P.c., 22 ABR 985 (February S, 1968). The plaintiff Incorporated [0 dt.'Ytllop land in ~uth Alabama and retained Ihe defendants as Its attorneys. While rel)resent ng the plaintiff, the defendant s l1C!gotiated with third parties (or the purchase of Sl"N(Jr line connec· tions. The Ilegot i~ t jol1s fell Ih rough, and the defendants formed a sewer au thori· ty and agreed to prOYlde the needed services for the plainti'f. The dc fefldants disclosed Disciplinary Rule S.104(A) to Ihe plaintiff :md ~dvised the plaintiff a confli ct of Interest could arise and Ihat 11 could seck Independent counsel. The p laintiff Imer became dlssatisfiQ(/ with the defendants and ntcd sui t alleging breach of rule 5-104 aoo fraud. The plain' tiff alleged thaI rule 5·104 estJbll ~hM a duty oYICd 17( an attorney, the breach of
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which will SUPPOrl a private cause of action. The defendants maintained thaI there is no private ca u ~(! of action for an "lIeged violation of a disciplinary rule and filed {l motion lor summary judg. ment. The motion wa s granted, and the plaintiff apl>ealed. The ~upreme courl afOrmro. The supreme coull r(!Cognlzed Ihat Alabdma has never decided this issue; hOWl."YCr, courts in other Jurisdictions have hald that an alieg{.'(1 violation of a disciplinary rule (lacs not creale {l privJte cause of aCl ion. The court noted Ihatthe Code of Professional Responsibility was designed to be disciplinary In nature. In· deed, rule 3 establishes sl.lltypes of ~d is cl plinc": (I) disbarment; (2) suspenSion for a fixed periocl of time; (31 temporary susl>ensiol1; (4) puhlic censure; (5) private reprimand; and (&) prlv,lte Informal admonition. It does nor creille a priva te cause of ac tion. The ~ole rtlm{.'(ly is the imposilion of these diSCiplinary meaSOles. C ivil procedu re, , . p ending discover y owed by m oving party does !lot always d efeat summary judgment Rf.'C\Ies, CIC. V. PC)rf~r, CI .II., 22 "6R 1118 (February 19, 1983)-R~ nled an action alleging fraud and suppresSion of material facts concerning the sale of a used dwelling. Ree\.es also filed requests for I)roduction of documents and Interrogatories. The defendants did not (lnswcr the diK OVCry and filed a motion for summary judg,ncllt. Reeves filed a response stating that there were IS$ul!s of dlSp!J ted material faclS. Reeves did not move the court to compel discovery Or
request a continuance. The court granted defendants' motion and Reeves' appeals contending that the summary judgment is nOI proper where the pl"ntiH has pending discO'oery I'C<luestS, The suprt.'fl1e court dlSllgreed, The court stated Ihatthe mere penden·
cy of discovery docs nOI bar summary Judgment If the non.movlng party believes that pending discovery contains mailers crucial to the motion for summary j udgment, the non-moving party should file :I rule 561f) mOl lon wl,h appropriate supporting affidavits. The burden is upon the non-moving party to comply with rule 56(f), AIa.R.(iv.P', or to prove that the matter sought by dlSCOVCfY is or may 00 Crucial to Ihe non· moving jXlrty'S case. If the trial court from evidence before it, or the appellate court from the record, can ascertain thilt the mailer 5ubject to discovery was crucial to 'he non.moving party's case, then and only then Is il error for the trial court to gra nt summliry judgment before pending discovery Is completed. Property •. . leaseh old interest in rea l proper· ty c o nsidered perso nal property & parte: NOIfinghilm V. C H. & B., Inc., ele,. 22 "SR 1541 (Ma rch 18, 1988). 11'1 a case of first imPrt.>ssioo In "13bama, the supreme court was askl"ll whether a leasehold interest In real pro perty Is real or personal for the purpose of de'ermin· Ing the proper venue of art aCllon. Reslxmticnt, 1'1 domestic corporation doing business In Dale and Coffee counties, leased spacC! in a motel in Coffee County from the petilioner, a resident of Date
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239
County. The petitioner filed suit In Dale County alleging breach of the lease. The responden t filed a simi lar suit in Coffee COUnly and filed a rule 82(d), Ala.R. Civ.P., mOtion in Dille County on the grounds tha t ooth suits in\lOl...oo real property located III Coffee COUllly. Md, therefore, Coffee County was the correct venue. The triill court gmnted Ihe m()tion, and the petitioner filed thi s petition for wril of mandamus. TIll!' COurt r'lOted that at common law, (!Stales for years wcre cla ssified as chattels real and reg;lrded as personal property. The court also noted that section 1·3·1, Ala. Code 1975, provides that the common I"w con tinlles unless altered iJy the Constitution or Ihe legislature. The court lookl.>d to Other lurisdictlons and author· ities and noted thaI a person who only has the right to the usc or OCCUI)ancy of a building Is nOl commonly regarded as its owner, and his interest is merely con· trilctua!. Since the lease sued upon is per· sonal property, the action is in personam. Si nce respondent is a domestic COfl>ora· lion doing business in Dille and Coff~ countil.>s, :Jnd pelitioner is a resident of Da le COUllty, \lill\ue Is prOpi!r In ci thcr county. Therefore, the plaintiff may elect the CQunty, ilnd when this eleclion is made Yenue will not be disturbed. To rt s ••• malicious prosecutio n premature until appeal process is over 8,mell Mobile Home Transport, Inc. v. McCugin, Ct aI., 22 ABR 1067 (February 12, (966). McCugln sued Barrett for dam:lges arising from a move o( their mobile home. Barrett counterclaimed seeking a deficiency judgment on a notl,!. The jury ruled in fa\lOr of McCugin on its suit and in fa...-or of McCugin OIl BtHrelt's i;ounterr:laim. Barrell flied post· judgment motions and later appealed .
While th ese motions were pending. MeCugin filed this malicious prosecution action. Ultimillely, Barrell lost his appeal. Thereafter, McCullin proceeded wi th this millicious prosecution tlctlon, and Barrett moved to strike, arguing that the acti on was premature In that there had been no (inal determination in McCugin's fa\lOr when it WilS filed. The trial COllrl denied the motion to sl rike, .md, therefore, Ihe supreme court was (OlCed with two issues of nrsl Impression; first, wheth er a claim for malicious prosecution accrues at the time the tri(11 court renders its judgment in the underlying proceeding, notwithsta nding a later air peal from that judgment, and, St.>«md, whether an action for malicious prosecution may be baSf.!{i on a counterclaim filed in Ihe underlyinl:! action. The court recognized Ihill although there Is a split of authority on the t'irst Issue, the weight of authority supports the rule that the pendency of (In ilPpeal procludes a malicious prOSlX:ulion ac· tion. RestMement (Second) of Torts, §674. One of thl.;' elements of the tort Is a judicial determinmion In favor of the person against whom the underlying ilction is brought. The courts also have stated that it would be a wil ste of judicial resources to tlilow the pl{fintiff to proscc:ute his malicious prosecution i1C1ion only to hil\le it rendered meaningless if later the appeal of the underlying action is decided against him. Ar'lother elenlent of the lort Includes "I nitiation or continuation of an original judicial proceeding .•. by or at the Instan ce of the defendant." Barrett argues that a counterclaim does not supply the eleml,!nt. Ttll,l COLlrt clsagreud and noted that it generally has been recognized that ~al1 action for m1lliclous prosecution may be basro upon the Interposition of a malicious cross- claim or counler·
claim ... since interposing such a crossIIction is the equiV".. I~nt of the inStitution of an Independent action." Worker's compensat ion ...
Mcl.iJ in v. G.A.F., CorpOriJlion Overrul ed
Ex poule: Tuscaloosa Cou nty, Alabama, (In Re: Tuscaloosa County v. INA/AIJ/rla III$ur;mce Comp,my), 22 ABR 1050 (February 12, 1988). The Injured em· ployee and the Insurer entered InlO a set· tlement agreement but Ihe agreement wa s nol court approved nor incorpoltlled into a judici,ll det:((,'C and no clilim for medical expenses was filed within ont! year (ollowing th~ last payment of COlI1pcnsation be'le/ils. Consequently, on authority of Me/.oin II. G.A.F. (orpor.,lion, 424 So.2d 1329 (Ala.Ov.App. 19B21, the court granted the Insurer's motion for $ummary judgment. Alth(lugh the legislature did not expressly 1)l'(1Vide a limita· tion for the nUng of a claim for m(o(.!ical expenses, M cLain held that an employ. ee's cl aim for medical expenses Is subject to the limitation sel forth in section 25-5·80, Ala. Code 1975, for compensation benefits. The court (If civil i1ppeals reilsoned that the court had held thilt the St.alute of limitations bars the Hri ght ilSClf;' whi ch includes both compensation and medical e)(penses. On certiorari, the courl rcvcrsed Mcwin and held that an employee's right to sue for accrued medical expenses is totally dependent of his or her right 10 sue for compen5alion beneflt5 i1nd not subjoo lo the statute of limitations. HO\oVCVCr, the court also nOled that the employee stlll must prove that th e Cll1ployee received " notice" of the "accident:' the accident occurrro within Ihe line and scope of the employment and the injur. ies and medical expenses are proximately relal(,>d.
please send your editorials and letters Ill; TRAFFIC ACCID ENT RECONSTRUCTION
ALBERT MEDINA
~
"O.IIOXII331
240
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(-&...-/~.. '~
UONTOOl,j iRV. ........ 11.4....... MIn
.. r!O.'V (lOll tH·Jilt
The AlllbitrrnJ I..1wyer
p.o. Box 4156 Montgomery, AL 36101 Your opinions on sub jects of interest to o th er A laba ma lawyers are al ways welcomed.
July 1988
Worker's coml>ensation ... section 14'5 omission from 25.5-80 does not affect v.llidity Ex parte: Rh/..'Cm M(lnuf.lctur/n8 (in re:
SILlI(! v. Beller/on, 22 ABR 1476 (March 18, 1988}-Bellerton was Indicted for I>OSSf'sslon of cocaine. The testImony at the suppression hearing showed th3lthe defendant and t'NO othcl1 were in the Hodges v, Rhccm Manufacturing), 22 fron t seal of an autoniobile, p.lrked In a ABR 14n (March 11, 1988). l-lodges was park ilt 1:40 a.m. T'NO Gad§dcm police of· Injured Oclober 4, 1984, while actin8 ficers on palrol Spoiled the car and, acwilhin Ihe line and scope of her employcording to one of lhe o((lcers, " v.'(l just meT\!, Allha t tim~, section 25.5·80, Ala. got out to check and see ••• if we could Code 1975, provided thai she had One help them wilh anything." The testimony year from thai dale 10 scllie the case or indic<lted thai the park was a plilOO where fite suit, Effective February I, 1965, sec. one could take his girlfriend or go and lion 25-5-80, 5 Upr~, was amended to give drink a beer in the privacy of their car. Ihe injured emplo,oce IWO years from the The officers, with their bright lights on, date of Ihe accident to file suit. Hodges w.,lk(.'C! up to the occupied car and flied suit October J, 1986, I.e., within Ihe knocked on the driver's window. The lwo-year amended stlllule of limitations. wlndo-.v wa$ opened. and the o((lcer Rheem moved for a summary judgment smelled marijuana smoke. The occu. based on the previous onc-ycar statule o( IX\nts were rernov~xl from the car and limitations and tIle language contalnt.'(i searched. Bellertofl l1ild a small glass in section 14 of the act. Section 14 pr(}o Cl)nt(liner containIng cocaine. vldes that the amendment does not af· fect a cause of nction which arOM! or aC' The trial court gmnted the defendant's crued or ,mplies to an accident which pretrilll motion to sUI)press tile t.'Vldence occurred prior to February I, 1985. The as having been sel:zed without probable trial court found that section 14 con· causc. The court of criminal appeals trolJed and ruled that the amendment did rcYllrscQ and the Supreme COurl of Alilnot apply because the C.1Use of action acbama, through Chie!' Justice Torbert. crued prior to Froruary 1, 1985. The affirmed. coun of civil apPells J"tWfSed, reason ing The Belfer/on case Il)ms on the Issue that since section 14 of the act had nOI of whether a "Stop" or ~sei:zurc" ocbeen codified In seclion 25·5·80, 5upra, curred prior to the poInt at which the and since SOCtion 25·5·80, supra, as police offiCers di~ed Ihe delcndant and codirred ~omcs lhe prevailing 1iJ\.Y, sec· 1115 companions to get out 01 the car In tion 14 Is renderoo Ineffective. which they 'Nere sitting. The defendant On certorinrl, the court reversed the maIntained that the offICers' conduct WilS COUrt of civil appeal~ and held thai the suffi cient show of authority or Implied a (allure of Michie Company 10 iilCorporate restraint to conSlitute a stop or seilOre sedion 14 inlO the Code did not afft.OCI it5 within the Fourth Amendment. validity. The coun reasoned that section In the law of ~<l rch and S(!1:w re, the 14 belongs In a Category of I)rovl sions term "SlOP" refers to il type of temporary that customarily arc not codified but yet detention for investigation. In the l<II1drem,lin viable. In such C.1SI..'S, Michie, mark case of Terry v. O hio, 392 U.S. 1 which is Alab..l mJ's deslgnalC!d "Code (1968), the United St,l1es Sup reme Court conlmlssioller;" customarily refers to Ihe rejected the suggestions that referring 10 ornlued sections In a code nOle. Other . . lemporary detentiorl as a "Stop" tilkes such ornilled provisions, whose v,llidity such police action out of the purvll..'W of is unaffccted, include local laws, sC\'Cra. Ihe Fourth Amendment, The Supreme bility clauscs and repealer clauses. court wrote in Terry: "It is Quite plaIn that the Founh Arn~nd mentgO'JCl"n s' sel:zures' of the person which do not eventuate In a trip to the station house and prosecuRecent Decisions of the lion for crime-..!arrests' in tradilional ter. Supreme Court of Alabamaminology." Crimina l The court acknowledged that a "Terry 5to1)"-a temporary delention of the What kind of investigatory "stop" person- is a "sellure" of Ihat person Iriggers the Fourth Amcndmcnl1 under the protectIons of Ihe Fourth The A labama L.lwycr
Amendment. What make! a pollee en· coullter a "seizure" for the purposes of the FoUlth Amendmenlf The court, in Terry, stated that "when(.'Wr a I>olice of· ficer accosts an Individual and reSlrains his freedom to w,llk away, he has seized thai person." The law is dear that the Fourth Amendment applies to seizures of the persons Including brief iOYeStigatory stops. 'ifllthough a temporary sdzure of the person does not require the probable cause necC5S<1ry 10 Justlly a seiZl)re amounting 10 an arrest, an inYCStlgatory stop muSI be JUStified by some ob/cclive manl(f!5t.1liollthal /he person stopped Is, or is aboul lo bt!, engJgOO in criminal activity." Uniled SI.11es .... Conez, 449 U:S, 411. 417 (198 1). ChIef Justice Torbert app/O\ll"!d the language found In 1..1Favc'slreatise on search and sdzure as follows: "The Il\ere approach and Questioning of persons scated withi n parked 'Nhlcles does not const1tute a sel:zure." In the case sub iudice, the officers merely approached a car parked in a public place, The coun agreed with the
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Court Testimony and
I.R.S. Experience 241
court of criminal al>JX!als Ihallha! action alone did nOI amount 10 such a show of aulhority or in'plled reslrainl as to amount to a seizure of the petitioner. II followed that the subsequent ~izure of the cocaine from Betterton was proper.
Whal price a co nfess io n? McCary v. SMle, 22 ABR 824 Uanuary IS, 1988)- Hclldc~on, an Invcstig3tor with the Chlholl County Sheriffs Department, and Chief Deputy Mims tr.welled to Flagst,lff, Arizona, and Questioned McCary about a robbery. AI the time McCary was QuestiQn«! by the d('PUti~, he was in custody and cha~ onlywlth escaping from the Chilion County Jail. McCary was advised of his Miranda ri8htSbefore questioning began. He admined he had cKaped from the Chilton County Jail but dcnied any knCM'ledge of the robbery. The t......idence i1t the supprt.>$sion heMing Indicated thai after Ihc defendant hild been questioned " for some lime," MinIS asked the defendant. 'Whal j( I lold you thaI we have Thibodeaux (a person II'IYOIYed in Ihe robbery) a.l(! he was found with a bullet between
W~ wl~ dd«Idanu, benflkllrles.lnsured~. policy
Mlders. debtors. hve moved and left no forwal'dlng addreu. we truk them down on a world-wide lQle. And If we don't find your penon. you dOll't pa~ GIob.1I's IMsk charge lOr a traU wNn the last known add~ I, thf'M remold or Ies~ I~ Sl80.oo. call fOf' m_l nrOf'~t lon or to start a trace today. 1·800·66Joo61441b11 ft'ee Allulta .. H awOlU call 1·8(l()..4 41-61 44 9I.m.-7:]O p.m. EST 61.m.·4:10 p.m. PST
r~f ~.
242
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his~; what would you SolY if I laid you Ihal he was foundl" AI. the lime the question was asked, the deputies knew that ThlbodeaulC was nOl dead. Investigator Henderson testified thai the pel itionets reaction was Immediate; the dcferl(!ant swallowed hard and said, "look, let me tell you somelhlng, thilt I didn't kill the man. 1 did nOI pull thll1trigger; Rubyn Smith did !hilt." Aftcr the <jut.>§Iion waS asked, he signed;) statemen! confessing to the robbery; Ihen the defendant was Informed that Thibodeilux was. In faCI, alive. McCary conteoded that Ihe trial court crred In denying his motion to suppress the confession. He ugucd that the confession Wit S the product of coercive pollee ConduCI ar,d, Ihus, was not made volun tarily, knOlNln81y and Intelligl)ntly. The Supreme Court of Alilbama agreed and reversed. The law with regard to the admissibility of a confession is set fOrth In Eakes v. Stille, 387 So.2d 855 (Ala.Crlm.App. 1978): ~A confession is prt.'Sumcd 10 be In. voluntary. Before iI5 admission InlO evidence Ihere mUll be evidence ad· dr!!$sed 10 the Irlal judlle sufficient to rebullhat presumplion and a shr:mlns Ihallhe conf.:lUiOr'l was nll\(le without Inllvence of either hope or of feM, 1.II111l"S Ihe altendlnz clrcumst;!nccs af. Omlalivcly disclose the volvn!adness 01 Ihc COnfession:'
The true lest of delermlnlng whether eJCtraludicial confess ons are volunt,lry is whether the defendant's wil l witS over· borne al lhe time he confessed and lhell}fore nOl the ])fodUCI 01 it r,ationallntelloo and free will. Townsend v. Sa In, 372 U.S. 293,83 S.C!. 745.9 L.Ed.2d 770 (1963). The supreme cour\, In a unanimous opinion, reversed with the following statement; ''\0\\1 vlUw Ihe st~lement o( Chief Depvty Mlms as OOIn8 an affirmatll'C ml ~~rcsemmlon 10 the pelulonel thai he (the petitioner) was su~j)ected oIklllInll Paul Thibode~u~, AI the time the st,)t~nt WilS made to lhe pelrtloner. both Henderson ard Mrms "-1!re well iIw.Irt! Ihal Thlbodeilux W,)$ not dead. The petrtioner, cle.uly t~ken aback. denied the klllins. Ixll apparently con· fessed at some poi"! during the Inter. rogmlon after the mlsrepresentarlon had been made. IIi5app.1lCnt to us that the Intellolliltinll oI'ffccr5 In thiSca~ 'M!Rl tryinS to SCt lhe pelitlOrlcr loeon· less 10 Ihe robbery.1 Marlln's Mercan·
lile by wggesllnll 10 him Ihat Thibodeaux had been killed, the Impllcalion being that the tlClltlooci might avoid prosecution (or the mulde, 01 Thibodeaux If he confessed to the robbcfy, The sl~le failt,'<Ilo Introduce eYidence sufficient 10 show Ihallhe petitioner's will w.n not IWerbome 111 Ihe lime he cOr1fes~-d . The conclusory testimony of 1~llg,ltor I'tenderson lo the effect Ih~1 the petitioner's con fcsslon wa s IIOlun· larlly made Is slmilly not 5uff'lclcnl. unOOr Ihl! undlspult-d filCh In Ihls aSCl, to show Ihm Ihc pelrll0f1(."l"5 con fessIon WilS volunlarlly made. \IW: hold. Ihemfo~, that Ihe 1X!lrtlOfl(!(s con~~ion muSl be deemed not \<OllI1tary, but cocn:ed. Consequently, the trial committed rf..'VCrSlblc errol" In allOWing It Inlo evidel'lCe.~
cou"
Confession by decepl ion Johnson v. SIMe, 22 ABR 812 (March 2], 1986)-Johnson and Glassco were In· Ct\n::eri1ted togClher and escaped from the Uncoln County Jail In Tennessee. The pair tr"velled In a stolen au!Omobile into neighboring Madison County, Ala· bama. The vehicle was ultimately in~Ived in a wrcck subsequenl lo which Ihe defendanl5 were captured. A Tennl.>§5ee 'i ighway pJtrol Trooper ~n l to Ihe Uncoln County Jail to inter· view Johnson and Glassco concerning the wreck. Prior to (juestlonlng Johnson, the trooper advlst.'<.I him of his cons tituHon;] 1righl to remain silent and his right to appointed ICg.ll counsel. Johnson testified, hO'M.".'Cr, that he consented to an~\'Mr the questions only on Trooper Hor· an's assurance Ihat his responses were for uSC in completion of the traffi c accident repon in Tennessee and Ihat those responses would not be used ag..1inst him In any criminal proceeding in Tennessee and Alabama. The statements given by Johnson wcrt! uhima!ely used In his Alabama crimi nal prosecution. Earlier, Johnson refused to answer questions and asked fOr COurlSCI. A unanimous Supreme Coun of Alabama reversed. holding that Johnson's statement to Trooper Hor;an was the pro-duct of deception and, thus. should h~ been suppressed by the Irial court. The supreme court found ample evidence Ihat Johnson's stiltement wJS deceptively Induc«l because Johnson was told that the Inlervlew wa s "strictly" for the ml(pose of investl g.1lion of il !rilffic accident. The law in Alabama Is clear that "in Qrder to be admi$siblc a confession must July 1988
be free and ~I untary and cannot be the resul t of any direct or Implied promises, hov.'CYCr sllghl.H E~kej v. Slate, 387 So.2d 855, 859 (Ata.Crim.App. 1978). The coun also nOtl>d thai Ihe conduct of the trooper violated the teachings of EdwMdj v. Ar/;iona, 451 U.s. 477 (I9811, and the Eleventh Circuit decision In U.S. Bosby, 675 F.2d 1174, 1181 (11th Clr. 1982), because:
"Upon assertion of hIs right to counscl, l/IW enfon:emcnt ofOclals cannot s\lbjl'Ct the defcndont to further (tuustloolng until an anorney haJ been appolntoo for hin and he has bei!n ac· corded the opportunity to consuit • ... H
Test for challenges for cause-not me(;hanical application of " Magic Qut'Stion" Rutledge v. State, 22 A8R 1107 (February 19, 19881- The Supreme Court of Alabnma gr;ml(od Ru tlt.'dge's pet il ion (or writ of certior~ri to review whether the trial court abused lis discretion in denying the defendant's challenge for cause against a prospecti ve juror. Prior to trial, the defendan t, through courlsel, filed a voir clire motiOr) in limine re(luesting lhar the coun prohibit the district attorney from asking the prospective jurors about the Soulhern I'I:M:!r· ty L.1W Center. Defense counsel argued that the types of cases handled by the Southern PtM!rty I.;Iw Center made it UI"II)()pular with a large segment of the population and th(lt those Y(!r'll re persor)s holding rm unfavorable opinion of the center \.\/Ould be potentially preJlldiced tOYiilrd the defer)(\.lnl. On \JOir dire, eighl prospect i~ jurQrs responded that they had heard of the SPl C. One juror further stilted that he W.lS prejudi ced towilfd org.lnlzatlons such as the SPLC and th"t this personal prejudice possibly would affect his ablli· ty to acl asa (air and imp,lrtlal juror. The next day that juror was interviewed 01,11· side the hearing ol the other members 01 the venire. " he trial defense counsel asked Ih~ prospC(livc jUIlJr. "Okay. But you feci tha t you \.\/Ould be prejudiced against l aw~rs (rom thlll kind of organization [referring to the Southem PoYcrty law CenterH" The juror responded, "It's possible:' The CO\II1, in (In efron \0 save the day, asked Ihe juror, HCould you 511on the trial of this case, and regitrdless of who repThe Alabama Lawyer
resented who(sicj, could you still listen to the evidence In the case and base your ~rdlCl In the case solely on the evi, dence, regardless or who the law~rs wcrel" The juror responded, " I \.\/Ould guess I would. I just don't knov.l.' Without response, the trial court denied the challenge for cause and committed reversible error. In revetSlng, t'le Supreme Court of Alabama cited with apProYallrs holding in Ex parte Beam, 512 So.2d n3 (Ala. 1987), wherein the court held : ~No light of a felon Is more liMic than the right to strikea petit jury from a l>:Incl of lilir·mindC<l, Imll.,mial prospcctl~ jUfOl'$,H Be.lm, at 512 So.2d n4.
Applying the principles In Beam to the answers given by the juror, the supreme coun held that the court proccedlr)gs nOl only muSt be filir, but ~Iso must appCllr to be fair. Accordi ngly, the court held \h,l \ the trial cou rt abused in discretion In oot granting the de(erldant's challenge for cause.
Recent Decisions of the Supreme Court of the United S1.1tes 404(b)-l'olher acts" evidence HuddlCjlOn v. Uniled StJles, 56 USlW 4363 (May 3, 1988)......,\I\ust the dimlct court makf.l 11 preliminilry finding that the g(M'!rnment has pt'(lV(!d the "other act" "" a prCI)()odernllce of the evidence before It submits 404(b) evidence to the Jury~ The 5Ullreme Court said no. Federal Rule 01 Evidence 404(b) prohibits the admission of similar acts l.'Vidcnce to sh<m" defendant's bad char·
acter, but lists ~r proper purposes lor which such evidence may be admitted. In IJudd/eSfon, the defendant claimed that he did not knaw th"t the videotapes he sold were stolen. To show Ihal the defendant did, In fact, have the requisite knowledge, the government Introduced evidence thilt the dcfend~n l also had sold stolen television sets and appli. ances. The district court .KImitted the evidence over objection. Chief Justice Rehnqulst, writlr)g for the ",njority, held tha t the district court need not Itself make a preliminary finding that the government had proven the Hother ad" 11)' a preponderance of the evidence before It submits ~siml1ar acts" and other rule 404(b) evidence to the jury. The Supreme Coun reasoned Ihat the requirement of such a preliminary finding would be Inconsistent with the FC(jcr;J! Rules of Evidence, which ali{)Y.Ilhe ildmlsslon of relevan t evidence for a proper purpose subject only to general st nctu~, with rule 404(b)'s plain language and the legislative history behind that rule, The Court concluded that "slmllar acts" evidence should be admlued I(there Is suf· flden t l..... ldence to support a finding by the Jury thilt the dcfcndilnt committed the similar OtC!. H~r, the Court acknONkodgoo the potential pfCJudice of "other actsH evidence, but noted that the rules provide scvcf31 ways in which to guard against .,buse: first, rulc 4().4(b)'s requi rement lhat Ihe evidence be offered (or a proper purpose; rul e 402's provision for Ixllanclng the probative Villuc against UI"IfJlr prejudice; and rule lOS's provision for requesting 3 limited cvidMCe inStruCtion. •
AUBURN
Expert Wttness Se rv ices ElKtrle $hock. Aulomottv./ Avlcrllon / MQrln. ElKtronle •• M.ctlcol o.vk:. Foliur•• Comput., Systel'N • Mlcrowav. Hazards • llorMdlcoi S.,..I~ •• Humon·MoehIM Inl~ac•• G..,.,aI EnglnHflng • Humon and Social Selene• •
Dr. Michael S. Morse Dr. Thaddeus A. Roppel (205) 887-1817 (205) 887-1814 (205) 826-6610
243
Memorials JOHN t:DMlJNIJ ADAMS John EdmUlld Ad,ln1S was bom In Pine
John Edmund Adams-Grove Hill
Admiued: 1919 Dkod: September 9, 1987
Clo pper Almon- Sheffi eld Admitted: 1920 Died: April 10, 1986 Judith Lon8 Banks- Mobile Admitted: 1987 Died: Mlly 22, 1988
Joseph thomas Conwe ll, Sr.-HunISyil h:-
i\drniul>d : 1940 Died: March 29, 1988 W,lllN McQ ueen Cook, Sr.-Mo bile Admitted: 1948 Died: February 18, 1988
Harry YounB Dempsey. HI- Spanish fort Adrni Ued : 1975 Died: May 21, 1988 Wil fred Ga lbraith- Anniuon Admitted: 1941 Died : April 28, 1966 Maxwell Griloove-Hunlsvi lle Adrni ued: 1969 Dk-d: Januilry 15, 1988
Be nja min
H c u~ tis
Kil born, Sr.-Mobile
Admitted: 1954 Died : February 28, 1988
Hobdy Greer Rai ns-Gadsden Admhl!Xl : 1945 Dil'<l: AI)ril 1$, 1986
244
Apple. Alabama, December 26, 1896, .mel died September 9, 198 7, "fttlr !i ving in Chlrke Cou n!y, AI"b"ma, for more than 90 yeal"5. Adam s W,H a grildume of Ihe UI)lversity of Alabama, receiving an bachelor's degree hI 1917, master's degree In 1919 and LL.B . degree in 1919, and wa s a member of Phi Beta Kappa honor.1ry fra路 ternity ilnd Sigmil Chi SOCiil l fraternity. He was a distin gui.hed member of the Alabilma State Uitr, serving as a In!!mOOr of the Grievance Committcc, on the board of bar comml.sionel"5, as vice presIdem and as president of the state bar In 1946. Adams was a member of the First Judicial Circuit Bar Association and the Clarke County Bar Association and served as preSident of the Clark County Bar Associati on (rom 1965 until 198 7. f"h'! W<l S further distinguished by being admitted to practi ce before the United StMes Supreme Court In 1945. He was .1(1 outst<lndlng business and civic leader in CI~rke County, having ~ervcd iI~ iI director (I nd secrelilry of the First B.1nk of Grove Hill, 1965-1984; first mayor of the Town of Grove 1路1111; presid(!I'It of Ihe Civic Club; d(!aoon and trustee of Grove I'lill Baptist Church, and !;Iught men's bible classes (or many ye;us; member of the Democratic Executive CommiUee 1923- 194 1; an aUor. ney for the Clark County Commission for 57 years, attorney for the City of Jackson for 64 yeilfl' and C()()rdin,ltI,)r of ci vil defense for Clarke County in the 19505; and a nwmber of board of dirt'<:tors of Ih~ A!abarlla Law Schoo! FOUlldatioll 1964路 1966. In 1974 he was recognized by the Association of County Commi ssioners 01 AIDbama for distinguished ser路 vic to CO\rnty government in Alabama. and in 1978 was SclCClt'<l as Bos~ of the Year by the Clarke County Legal St'Ot'taries Association. Adam s was a man of extreme modesty and unselfishness who endeavored to
avoid the attention which his abilities and aCCQmplishments merited. He was an ilble and learnt'<l lawyer, a mon of IntcgrUy, a gentleman and II friend to all, and (or 68 year s. wa~ one of the most highly esteemed, respected and beloved members of Ihe bar o( Clarke COUllty, Al ab.1rTla.
JOSfI)H I. ( ONWH 1 Joseph T. Conwell, Sr, aflectionMely known to his many friends as joe, was born In Oakr\lan, Alilbilmil, and died March 29, 1988. Joc gr.ldu'llt>d from Walker County I'!igh School and the Uni. versity of Alab.'\ma School of t..1W; he served his country honorably In Ihe United SIMes Army during 'Norld War II. j'le pructiced 1;tW in jasper, Alabam<l, .1nd 1;:l1er in I'!untsville, AI<lbdma, begi nning In 1955 <Ind, In more reccnt ycilrs, was privileged to practice law wi th his son, Joseph T. COr'lwcll , Jr., in Huntsville. Throughout hi s .ldult life, Joe look an active interest In politics all d the democrilti c system. He wa s a faithful member of Episcop.ll Church of the N<ltivi ty and formerly il member of St. Steph ens Episcop.11 Church in Hunlsville; he loved the outdoors, Including fi shing and hunting. Joe wa s an advocale fo r his clients' ,)Osition in Ihe many cau!{!S In whi ch he I>ilrticipated during hi s lifetlnle but was, at the same time, a f<lir and compasslorlall) m(ln; he gained the respect of the members of Ihe H ~mlsville-Modlson County Gil( Associ ation during the time he practiced raw in Ihis (ommunity and gained many fri(!nds in thi s life Ihrough hi s active partielp.llion in his church, politicoll and professlollal endeavorS. Joe had a warm and friendly personality whi ch endeared him to those who wcre privileged to kn ow him. l eft surviving him lire his son, Josel>h 1: Conwcll, jr.; two brol hers, Willi.:a m W. Conwell of BlrminHham ~nd Dr. Donald T. Corrwell of MassachuS/!tts; his mt)lher, M rs. Joe D. Conwell of Birmi ngham, Alab~ma ; and two gr.lndeh lldren .
July 1988
\\ \I II ~ 'Itt)! II '
(
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Wilher McQueen Cook died In Mobile, Alabama, February 16, 196B.
After attendance at Spring Hili College In Mobile, he obl~ined a bachelor's degree from Ihl! University of Alabama, an Ll.B. (rom Gcorge Wa shington School of l aw In 1947 arid an LL.M, In 1948. That SJmc year he was admitted 10 the
the board of IrU51ees of both Olg,lIllzations: received the Water Conservationist of the Yetll IIw(lrd: was one of the founder'S of the Alabama Wildl ife Endowment, Inc., a non· profit fund fOI the educallon of youth In conserv,lIion: was one of the founders of America's JuniOr Miss Pilgeant and president of ils board of trustees: for many years was legal coun· sel to the bc);nd of trustees of the pageant: wa~ a member of the board of trustees of the Julius T, Wright School (or Girls: and was president of the Mobile Azalea Trail, He was an able la.... yer possessed o( a vignlty, Integrity and ability that were outstanding. He was a Christl .. n semleman, it devoted husband and f.. ther who will be greatly missed by his widow, Norma Rogers Cook: his children, Nor· ma Mcqueen Cook, Julia Melson, W.. I· ter M. Cook, jr., and Kath .. ')'n Sarchfleld; by other relatives: and by his m.lIly friends.
District of Columbia and Ihe At;)b<lma
Stille bars. In 1951 he becal'l1Cilssociatcd wi th the firm of lyons & Pipes, the name of whi c;;h was lalcr changed to lyons, Pipes & Cook. Cook was a member of the Amer-
Ica!l, Alabama and Mobile bar associations: the Defense Resc,lrI;:h Institute: the Federation of Insurance Council and the AlabJma Defense lawyers Association, While being a successful lawyer, he al~ foun(ltime to set a good example of living for others, He serwd as president of the Mobile County Wildlife and ConSi'rvat!on Associillion and thc Alabama Wildlife Fcderalion, lind selVt'd on
Benjamin H, Kilborn, Sr., a dlstin· gulshed member of the Mobile and the Alabama State btl( assodlltions, died February 2B, 1988. Kilborn was bom in Mobile, Alabama, October 9, 1929. He at1ended Catholic Ih1rochJ;1I schools in Mobile and was graduated from McGill InSlltute. He graduatoo from Spring Hill College with an bache lor's degree and from Georgetown University in Washington, D.C., with the ll.B. degree, Kilborn commenced the practice of law over 30 years ago: he was a member of the Mobile County Bar Association, the Alabama State Bar, the American Trial lawyers ASSOCiation and the Alabama Trial Lawyers Association . He wl\lCd as president o( the Mobile County Bar Association In 1985 and, at the time of his deilth, was a senior partner In the (lrm of Kilborn, Redditt and Griggs, During the three decades of his legal caref!f he served as a merrbcr of many leading civic and conservation assocla· tions, Including the Board of Zoning Ad· justment of the City o( Mobile. Ite was a president of the Mobile County Wildlife and Conservation Association and of the Alabilma Wildlife Ft.-deration and was a dcdic,1tl.,(1 member of Moone United. Kilborn was a ~te ran of the United States Army. He was nlaHil.od to the former lynn Edwards of Mobile. They have three children: Nora lynn Kil born, Benjamin H. Kilborn, Jr., and Wtlyne Kilborn. •
Please Help Us ... We have no way of knO\Ning when one of our membership is deceased un less we are notified. Do not wait for someone else to do it; if you know of the death of OI'C of our members, please let us know. Memorial informatlor' musl be in wri ting with name, return address and telephone number.
The Alabama Lawyer
245
Disciplinary Report Disbarment
• The Supreme Court of "Iaooma entered an order March 21, 1968, dlsbiming Birmingham lawyer Cha ri M M. Purvi§, clfooive March 26, 1988, b.'lscd upon the "Consent to Disbar· ment" lhal Purvis flied March 3, 1988, under Rule 15, Rules or Disciplinary Enforcement. (AS8 No. 86-342] Suspe nsion • On M:ry 5, 1968, the supreme court ordered thul Huntsville ilUOrll(lY Lawrence i\ , Anderson be suspended from the prilctice of law for a period of she months, commencing June 16, 1988, without aulon"I!I, reinst'lIcn1enl to the pracl ice of law. Anderson previously had been found guilty by a !>and of the Disciplinary Boord of all Chilrges arising from fi~ sepMale cor'nplalnts brought ag.1lnsl him. He was fou nd guilty of neglecting his clients' legal matters, of ("mng 10 carry out contracts (or the delivery of legal services, of failing to seek the lawful obJOOI~ of his clients, of engaging In conduct that adversely reflected on his filness 10 practice law and of failing to properly wilhdraw (rom those cases. lASS Nos. 64-646, 85-495, 86-228, 66-652 and 67-1561
Pri va te Re prima nds
. On Ap!'iI 1, 1966, a liJW)1!r was priVillely reprimanded for willful neglect of a legal maner entruSled 10 him and Inlentional failure to seek the lawful objectives of a client. The lawyer failed, for a full year, 10 nle any response to dlscO'lCry requcsts that had been nled by the defendants In a lawsui t ini· tiated by Ihe lawyer for a ellent. The f;lllure to respond in ;Jny way 10 Ihe dlscO'lCry req uests resuhcd In the client's lawsuil being dismissed. lASe No. 87-143J • On April I, 1988, a lawyer was privJtely repri man(!ed for willful r."lsconduct, wil lful neglect, Intentlonill fililure 10 carry out a contract of employmcntilnd knowingly making a false stalementof fact . In AI)ri l 1986, Ihe lawyer agreed to oblain (or a client an eKtenslon of time for the fi li ng of the dient's 1985 federal and statc taK returns, and the lawyer further agreed 10 prepare and nle those returns for the client. He was paid a specified auorney's fee In the maller, and subsequen tly informed the client that he had filed both taK returns, and that the client wou d be receiving refund checks, when, in fact, the lawyer had not flied the tax returns. For six Of scYen mon!hs thereafter. the lawyer failed to return repeated telephone calls
to him from the elien!. Appropriate lax returns were ultimately nled, and the client suffered no f1nandalloss, as he did nol CNVf! any additional taxes for 1965. IAS8 No. 67-179J • On April 1, 1966, a lawyer was privately reprima nded for having engaged In conduct that adversely ref1(.-CtOO on his fllness to practice law. !-Ie flied II sui t for il c;lienl, growing out of a mOtor ve hicle accident, but subseq uen tly failed to appear at a docke t call, resulting In the c;lient's suit being dISt'lllssed. (ASB No. 87-36J • On May 20, 1968, a lawyer was privilteiy reprimilnde(! for having violated DR-I-I02(A)(6) and OR-9-102(A}. tn the course of represen ting a dlentln connection wi th motor ve hicle accident InJuries, the lilw~r si gned a wrillcn agtCCmCrll obligating himself to withhold from any selliemen\ proceeds suffic;lent funds to pay Ihe client'S Indebtedness to the trea ting physician . Thereafter, the lawyer rt.'Cclvcd fund s in senlement of the dien t's daim, but deposited the settlement proceeds to a general operating bank account, rather than to a trust ac;count. The Iaw-yer then deducted his fee and disbursed the balance of the funds to the dien t, f"iling 10 with hold the amount due to the physician. IASB No. 67-4(3) • On May 20. 1986,11 lawyer was privilte,y reprimanded for having violated DR 2-IIt(A)(2), by failing to comply wi th ;J dient's request that he withdraw from her case and return to her the papers thill she left In his possession. The taw-yer did not return the p;lpefS to the ellent unlll he had been served by the sheriff with a copy of the complalnlthat i he filed against him with the bar. lASH No. 87-759] • On May 20, 1988, a lawyer was prlvatcty repri manded for with(lr,lwlng from e!llI>loymetlt wit hout taking reawnable steps to avoid foreseeable prejudice to the righ ts 01 his client, for represen ting a party to a cause or his succeswr after having previously represen ted an adverse fXlrty Or interest In (;onncclion therewi th, for willfully ncglec::\1ng a legal mailer en· trusted to him and for (ailing 10 carry out a contract of employnlent entered Into wi th 11 client for profession.ll services. The lawyer. after having been paid to rellresentthe dlent, allowed a default ludgment to be cntc!'L"(! against the elrent In a divorce mOOiflc.ltion counterclaim flied by the client's brmer wife. The ,mOrncy then InfOrmed the dlentlhat he no longer (;001(1 represent the client because he had represented clico"s former wife in the original divorce proceedings. (ASB No. 87-520]
lne
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July 1988
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Classified Notices FOR SA LE fOR SALE: Used 1,lW books, Alabama RcportslAppellmte Reports, Cod~,
Alabama
Southern Reporter 1st & 2d,
~_t
BOOK EXCH ANGE (800) 32S-60 l l
p.o.
FO R SALE: S' x 5' Secretary's desk SI00; 4-dril'NCr lalOral nie, $100; 3100 Xerox copier $750; Q\lerhc<ld projector $100; opaque projector $100; Collins Bank·
rtlptcy·besl o((er. Everything in good working condition. Cont ilc t: 2723286 In Montgomery.
FOR SALE: Antique Alabama maps. mostly pre-l86O, Guar;'lnti!ed iluthentic. hecllenl law office wall decoration when framed , Write for list and photos. Sol Miller, P.O. Box 1207, Hunt§\lille, Alabama 35807. FO R SA LE: Mlllt condition Alabama Code COml)lete with 1987 supplements, Contact Bob Prt$to, P.O. Box 1434, Brewton, Alaluma 36427. (205) 867· 9044. FOR SALE: Alabama specific software on computer disk. N()N available In tnc follOWing areas of the law: civil procedure, criminal pre-trial motions, Interrogatories, corporations, DUls, probate fo rms. Available in INords1;lr, INordperfcct, Displaywrite 2&3, W3ng PC, Mu ltlmnte alld other word processors upon request. Mai lable in 5~ DSDD and 3 1/2 disk formalS. Inquiri(!5 welcomed. Vis.v'MC accepted. LAW TECH, P.O. Box 59903, Birmingham, Alabama 35259.
FOR RENT FO R RENT: Exocutlvc office space for rent/lease-off Red Mountain EKp ress· w.ty. Convcnlelltl0 d()NnlOWn Birming-
The Alabama Lawyer
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ham. l.i'a"8e office with sccretari~1 space; use of law library, phone, copier. three conference rooms alld kitchen. Receptionist available. Secretary negotiable, Phone (205) 879-<l317.
Southcm OigC$t and more. SAVE 30.60 percent. 'NIl buy, sell & trade. LAW Box 24990, J.lcksonville, Florida 32241· 4990.
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POSITIONS OFFE REO ATIORNEY lOBS-Natiooal and ~ erallegal EmplOymen t R(!porl: highly regarded monthly ootalled listing of hundreds of attorney and law-related jobs with U.S. GoYemment, other pubIId prlv;ue employers In WllshlrlgtOrl, D.C., throughou t U.S" and abroad. 530- 3 months; 553- 6 months. Federal Reports, 1010 \/trmont A\le., NW. Jl!408-AB, W.I;Shington, D,C, 20005. (202) 393-33 11 . Vi§3!MC. O PPO RT UN ITI ES IN ATLANTA-Numerous openings in Atlanta In all prac· tlce areas for a1tomeys and I)aralcgats. Candidates must h~ outstilnding Ilcademlc and professional credentials. All rel)lles kept strictly confident!,,1. Contllct: SUSIll1 Penny Coh(m, Callital C!ly Legal Placement, Suite 200, 133 Carnegie Way, Atlanta, Georgia 30303. (404) 525-on5.
ASS ISTANT DISTRI CT ATTORNEYS-Mobile County Di strict Altor· ncy's Office seeks experienced lawyers to conduct criminal prosecutions. Prefer members of AIIlbilm3 State 8ar with at least three years of trial experience. S:Ilary nl!gotiilble, commensuf'ilte with eKperlence. All inq ui ries confidential . S4!nd resume and references 10 Chris Galanos, District Allorney, P.O. 80x 2841, Mobile, Alabama 36652.
SOl( 66727, Birmingham, Alabama 35255. Atte ntio n: Hiri ng P.ulner.
THE UAW LEGAL SERVICES PLAN, a nlltlonal prepaid leglll services organization with ofnces In 19 sta tes, 5eekS a supervising attorney lor Its f'tuntsvi lle area offices to SCf'YC the cll/ll les'll needs of employees of Chl)'Sler and General Motors. Appjicanrs must be ol(lmitled to the Alaooma State Bar, h~ at least years' (lvil priJCIlce experience and management experien ce. Salary: $4 1,000, with liberal fringe benefits. Send resume to Jane Mullican, Offi ce Manager, UAW Legal Ser\llcts Plan, P.o. Box 2416, Decatur, AIIli>.'lnlll 356022416.
nyc
SERVICES EXAM tNAT ION OF QUESTIONED DOCUMEN~ Ilal1(hvritif'6, typewrit. ing and related exhaminations. InternatiOnally court-<luallficd expert Witness. Dlplomme, Amerlcall Board of Forensic Document Examiners. Memoor: American Society of Questioned Document EK..lminers, the Internatlon~1 AsSO(iiltion for ldeotification, the British For(!nsic Science Society and the National Association of Criminal Defen se L-.wyers. R(!tln2d Chief Document h· MIlner, USA CI laboratories. H,lns Mayer Gidion, 216 Merr ymont Drive, August." Georgia 30907. (404) 8604267.
BIRMINGHAM LAW FI RM seeks lawyer for position in commercial and reo tall litigation depal1ment. Two to three years' cll/II trial experien ce is preferred. Class standing in tOI) third of class rCo qulre<1. Apply In confi dence to Sirole, l'ermuII, MeDermoll, Slcplan, Friend, Friedman, Held & Apolinsky, P.e., P.O.
247
Classified Notices LEGAL RESEARCH HElP-ExpcrlCllced
Same day service. Noml nol cost. Free
a11orney, member of Alabama Stille Bar
trial. Kloz and Co., 80x 76140, Birm-
since 1977, Access 10 Ii\w school ilnd state lilW libraries. West law aViJilable.
5858.
Prompt dt!adli ne service. So3S/hour. MC)l)re SMah Kathryn Farnell, Building, Montgome r y, Alabam., 36 104. (205) 262-7763 or 277-7<J37, In
",
WrcrSOn and Shelby counties, call fl't.'C': 322-4419. No fC'prcscmalioll Is m,lc/c
about lilt! quality of (he legill serviCC$ to be performed or the experrise of the lawyer perfomlins such services. EXPERT WITN ESS ASSISTANCE iind case ,->val uations in Medical Oncology (cancer) ;ln el 1·lematolo~y (diseases of blood). Fast scr'Vh.:e. Ab le to tr,h'Cl. Medical school assistant professor. Ri ch.ud J. lilnhilm, M .D., Inc. 42 Fo,... er Road, Dayton, Ohio 45419. (5 13) 294·3165 anytimc, UROLOG IST, FOR EN SI C-exl'crj. f'nCOO, oo"r(!s, professor, M .D., J.D. , (314) 362·734D. REAL ESTATE SALE and loan cl osing stilterncn ts {H.U.D. form } with disuur* ment "d amortization schedules.
South ( Molin" 29606. (803) 292-1450.
in&himl, Alab.1ma 35253. (20S) 870· MED ICAL ECONOM ICS·EXAM INA· l iON and est.,bllshmcnl of ~rcasonablc-
POLICE/PRIVATE SECUR ITY lITlGATION-fQrmer senior poll(:(> official Florida and Mi chi gan and ( alietIC instru ClOr eXIX!rlerlcrt:/ 11'1 law cllforcemClll/privatc security standard s and prJctlccs. Ovcr 35 yc;u s' CXI)CrlCrICC wi th federal , state, cou rlly, municip..11 and private security system s. NAPS and Cpp certified. w.J. lough".'!!, P.O. Rox 4 14, Oclimd, florida 3272 1. (904) 734-6756. CERTIFIED 6US ll\ESS APPRAISAlSl EVALUATl ONS- YOll i1nd your clii!nt both benefit by using our con tacts, training and exp<!riencc. Compliance wi th IRS Revenue Rullrl8 59·60. We help In dlscO\lCry proceedings, Interrosalories and Critiquing o ther appraisals. Economical rate inc/l ldes facility vi sit and interview. Listed with both TASA and the NiJl ional FcJrensiC Center ilS<In e)(pert in businC5S v.11umion matters. Dunald Ri chards, ( SA., RA Financial Scrvices, P.O. 80)( 7016, G reenvillc,
nt.>Ss" nn!dicai bi lls.
~
hav<! h;mds-on
CXIX!dCtlce h\ the health Insuran ce Industry for a 101al of 2S combined years wUh vast technical knowledge of the methodology of est(lblishlng and sub· SIJntiJ!ing rea~n ab l c fees for hospit<ll, physician and other mcd ic(ll ~rvices and supplies. Consultati on ,md expt!rt testimony lIValiaule If rlccdcd. Corltacl : Medical Economics clo Rich;m l W. Vickers, JD, P.O. Box 311604, Birm· inghanl, Alabar'lla 35236. (265) 933· 7661, ex t. 302 or (205) 678·8908.
MISCEllANEOUS MISSING Will- If <Illy person has in· formation concerning a wi I which may have been prepared for Virginia C;uol Blevins (alk/a Carol B. Duchac), who wa s a residenl of Shelby County ti t the time of her death Q(tober 19, 1987, please con tact Paul O. 'Mlodall, 3000 SouthTrust Tl,)wCr, 31rnllngham, Ala· bilma. (205) 251-3000.
Don't let your Alabama Lawyers get worn, torn or thrown away. Order a binder (or two!) at $10 each from: The Alabama Lawyer P.O. Box 4156, Montgomery, Al 36101 or call (205) 269-1515 '46
lufy 1988
I
If your bank merci y dabb les in land management, you may find it lacks the ability to step back and sec the bigger picture. T he rcal potential in timberland, f"ffilland, or mineral deposits. But at AmSouth, we've bcen helping people i.n Alabama manage natural CI983 AmSou,h 8onwrponlllon.
rcscurces profitably for generations. And that's given us somcthing that only comes with cxperience. I~s called perspective. Without it, in fact, we
ANISouTH'
couldn't see the forest for the trees. ror YoorGrowing Needs. Member FDIC.
"mSouth Dank. N."'.