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ALABAMA EVIDENCE INTRODucrORY
PAtel $69 .95 Regul • • 1y 514 9&
bV William A. Schroeder, J erome A. Ho ffman and Richard Th igpen
In thiS compro henSlve examina tion of tho lules o f Alabama EVidenc e, the autho r s plaSM! an in-depth di SCUSS ion 0 1 aU Il oas of oVldontl 8 1~ procedures from Iho rolotlvely simple W8~ S \0 ob ject to oYldence through competen ce. priVileges. relevance. impeachment Ihe beol evidence rule (lnd perol eVidence Many
sec tion s contain B discu8sion 01 Fede/allow lind how It cllmpares to It s AllIbllmo countoq>OJ t ell se low Is thoroughly cited thr oughout \110 book An o)(collonl 1010l 0neo \001 for both the ino)(poriencod and vot eren lawyerl
C_1." • 1981. ~ 88 Pill"" 6". 9 111m "". " .. dbound "' ~ "' .. D....
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, - - - _ Table of Content. _ _ _--, Obillinlng , O••oting 000 Objocl lng 10 E~ldonee ' Competence ' E..em,nlll ,on o. W" ' enes • Relevanc e end Limi tation, on the AdmiSSion o' R&levenl EVidence ' Privllegos • Impeachment • E..pert TO. tlmOny • HOllr l lly • AU(lIOlUi Ct\110n and IdOn" I,ca tlon - Rul ea 00 1, 002, 903 • SpeCial Aulo. Relat,ng ' 0 WII"ng. The Beot Evidonce Rule ond ,he POlO' Ev,oonco RUle ' Roul end oemo n S \l&"~e EVloenee ' J\lolellil No,lce ' Pre sumption. • BUldOns 01 Proo' lind POtBI,I!lSion
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254
September 1987
The Alabama
3",yer
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On the coverBen Harte Harri s, Jr" of Mobile was inslalled al the 1987 annual meeting as Ihe l 111h president of the Alabama Slate 8ar, He Is pictured on the front steps of the bar headquar!crs. ' - -_ _----"...J
Fiat Juslitia Ruat Coelum- by Wil· liam J. Underwood ,." , .. 294
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For many yeaffi lhc trial of the "Scollsboro Boys" has remained a judicial proceeding of fascinating Inlcrest, An oflen forgotten figure In the saga was the Irial jlJdse-James E, Horton, Jr,
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In recent decisions the appellale cour!s of this stnte have d arified the venue provl. slons and other operative fClIlures of the Ad· mlnlstratlve Procedur~ Act,
Attorneys engaged in real estale practice should be aware of recen t reporting requirementS mandated by the Intern al Revenue Service.
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INSIDE THI S ISSUE
Postmaster: Send address ch<anges to The Alab.l nlil lawyer, P.O . 80x 4156, Montgomery, Al3610 1.
President's Page " " " . . Executive Director's Report . " " , About Members, Among Firms ' " Riding the Circuits ........... ,. Consultant's Comer " " " .. , .. , 1987 Annual Meeting " . " " " , de opportunities ........... ". Committees and ACtion Croups . "
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The Alabama Lawyer
256 257 260 263 264
280 284 287
8ar Briefs " " " " " " " " " " Recent Decisions " " " " " " " Young Lawyers' Secl lon , , , , , , , " leglsliltive WraJXII) " " " " " " Opinions of the General Counsel , MClE News " " " , . , .... ,,.,' Classified Notices""".",.", Memorials .... , .. , . , " " " ' "
298 304 308 J 10 J 11 3 13 3 14 3 16
255
President's Page (The foli(M'lng is (Jem Harris' firs! COIIIriburiM to the Lawyer as 1987·88 prcsi. dell! of IIw Alabama SlJlC Bar.)
Our profession at its beSt afford s the mOst noble employmer'lt In whi ch arlyone could engage. A I>coon can be of no gretlter service \0 mankind than in s the Alabama Stare Bar embarks the foremost rank s of the bar where upon a new year, we can do so we are sworn to aid in the administrawith eagerness Jnd confiden ce tion of justice and m<lintain ~ nd defend because of rhe finc ~ample of my those inalienable right s of life, liberty predecessor, Bill Scruggs. As {I bl1r com;md property upon whi ch dl.!pcnds thc missioner, I had the privilcijc of serving strength ;md Yery fabri c of our socl· Undl!f nine state bar prosldents, all of ety. whom $eM'!(! wilh hoilor arId dl stinctlorl, We must maintain a I)/Jrvasive sense but by any standard, Bill Scruggs faced or mission, strong sense of community the most difficult challengcs and suc"nd unsvverving pursuit of excellen ce. cessfully met them all. If we are so commHtoo, I am confidenl When I assumed this office, I asked we will continue to have lawyers espousyou, in th is the year of the bicentennial ing our noblest ilspimtiOn ~ and shaping of the Constitution, to join me in setting (lur !egal sys tem to lhc beSt interest of a CO(Jr~ to rek indle the spirit of professociety. sionalism in the bar. In serving as your lIVe exist not to serve our members prcSidclll-cI('C1and In the process of preHARRIS but to enlist them to serve oth ers. The paring to take omce, I allcnded many objects of thi s service arc the IJeQple of meetings 1n severJI sections of the counthi s $tate and th e administrtltion of justi ce for their sake, try, and In each InstJnce, I noted 01 concern of lawyers and th e bel1er job we do in recognizing that, the more ;lbout professionali sm and one of its key ingredients, 11IWo nearly we obt:,.in the high goal of belrlg a true profesyer competency. sional. We all have definitions of professionalism. Certainly, it I knOYt' to all of us the practice of law is more than a i nVOI~~ the relati(mshll' amon~ the mem~rs of the i}.;lr, mean5 of support . Let us c!(emplify our mission and m-'lke and the relationship betwt.>en the bar and the public. It it clear, by our actions to people in the counroom, In conincludes tI sense of self-worth afld professional integrity. feren ce rooms, in our offices and to our clientS~nd frierrd ~. Our Code of Professional Re sponsibilit y is a In so doing. we will take 11 Itlrge step fOr'wilrd in reklnd· dlstillguishhll! fa ctor. 1\ keeps Our eye Orl lire goal- the ling the spirit of I)rofessionall sm. Let us each Strive to be ultimate goal that we exist \0 render services. It makes us an example of Integrity In competence, In ethics "nd In focus on causes which trJnscend sel f-interest. VVe cOIn peraspiration. mit no COml)romlse becilUse therein lies the greiltness ilnd strength of our profession. Not ~ry situation which a I can think of no bett er goal for this bar in this bicenten· nlal year thiln to remember the hOrror the law has ~ Iilw~r mil)' faCe C(ln I,e foreseen, but fund<Jmen t{l1 ethical principles, as dL>velopcd in our Code, furni sh us with an stowed UPOr'l each of us, and In so dolns. recommit ourselves to bringing honor to the law. r Issue a call to each cffccti<'(! guide. I"'~r. rules of professional conduct arc minimum standards, and higher standard s aro enfofCcable, of you to Join me In maklrl g that pledge to ourselves, our profession and the publiC wh om we serve. not by formal discipline butl1y the expectations peers hold for one another. In order to maintalr'l our focus on thi s effort, I <lskcd your In a recent report, the Minnesota Ta sk Force on ProfespreSident-elect, Gary Huckaby, to head an action group siOlllllism silid of professionalism: on profe5sionalism lmd report to th e bar commission dur"It Is integrity in coml)etence, integrity in ethics, inin8 thi s bar year. Again, I th-'lnk you for giving me thi s opportunity to be tegrity In aspiration : a con5t"nt challenge to attain and retain the highest standards." of servi ce to our profession. •
A
256
September 1987
Executive Director's
Report
The fifth of May is special
M
ay 5 has special signifICance in
my life for it was on that day
In 1965 that I was admitted to practice law In Alabama. May S, 1987,
was doubly special because on that doy Ihe Supreme Court of Alabam;l entered
olders establishing a Client Security Fund and creating an Interest on lAwyers'Tro$! Al:counts program (tOlTA). Both of these
programs have been goals I have held for our state bar and the State 01 Alilbama.
Client Securit y Fund Client security funds are not new in
the legal world. ~at States established such funds In 1960. Alabama, in filCI, established Ont! in 1970-71. Claims IlclualIy were paid lodiclUSwho were Injured by lawyers' misdeeds and/or dishonesty. The Inillill fund was begun with a S] 0,000 grant (rom the Alabama SI;ne Bar Foundation, Inc. In its inf<lrlCY, voc Quickly realized lh;u our Inillal Client Security Fund was un· derfunded. Even though payments were a maUer of grace, potlYllial claims would have depleted Ihe fund if good faith p<lymlYliSof claims W!'re made. When il was determined thm the foundation no long. er could Icg.1lly fund this initial elfort, It WM discontinued. For over 15 years, funding was Ihe big impediment to a vl"ble Alabama program. We have not had a client sccllfity fund for over len years, and have been one of only four stale b.lrs without such a fund. Twenty·four unified state bars with client security funds maintain them through mandatory cOl'ltributiOns from eflch lawyer licensed In the jurisdictions. Twenty.two volunlary !urlsdlctlons aUoca\l! a portion of their du ~ for a
The Alabama Lawyer
funding base. In some states It Is a dimCI assessment, while In others It Is a specified percentage of the annual dues. aUf dues are legislatively mandated and It was not politically feasible to seck a legislative solution to thi s problem. Cerlilin lISpE,'CtS of a legislative 5011.1' tlon could have presl!ntcd a legal problem. OUt Client Security Fund Committee and your board of commissioners askl.'d the supreme court to establish a fund, supported through a mandatory assessment of each lawyer admitted in Ala· bama. The court' s order docs this with a maximum as sml'flt of $ 100 and asScs~ments of no more than $25 in [lny fl sc.11 year. The commiltt..'(l will monitor claims activity to inSLlre only the mini· rl1um funds r)(!cessary to maintain a viti· ble fund arc assessed from the member· ship. The state bar will send Sl<lIemeniS to all lawyers admitlCd to practice In Alab..lma to collect the initial $25 assessment (or the 1987-88 year. Alabama's client security fund, the nation's 47th, i)e(omes opt'Jratlonal Octobet 1, 1987. Approxim.ltt!iy six million dollars In claims wer!! I>'lltl by existing flmd s through 1986. IOLTA The other order of May 5, 198'1, I)rovidl.'S for the implementation of an IOlTA program, to be administered through our new tax-exempl 50 I Ic)!l) entity, the Alabama law Foundation, Inc, Again, Alabama Joins 45 other states and the District of Columbia In Iml)lCnlenting this progressive means of fund· Ing legal needs in our slmc with other· wise Idle funds.
HAMNER
In the regular course of busini;!SS, iIItomeys often receive fund s from their clients to be held In trust (or soll1e fulutl! tranS<tCtiOn. When such are slgnlficant in size or expected to be held for a lengthy l>edod of lime, the attorney customari ly deposlls the funds in an interest.bearing account (or the benefit of the dient, HOWl'VCr, when the funds entrusted to the attorney are small in amount or ClIo IleCted to be held only a short time, it is both impractical and uneconomical for the al\orncy to establish an Individual interest.bearing account for the client. With the amendments to DR 9-102 of the Code of Prokssiollal Responsibility and Ihe addition o( EC 9-'1 to the same code, it mechanism Is In piKe \0 utilize this idle money within the profession. An attorney or firm now will be aUawed to transfer the funds to a negotiable order of wi thdrawa l ("NOW"I checking ac· count which bears a fixed r~te of interest. Thl! financial institution Is noUfied by the attorr\l..'Y that all of the Interest generated by the NOW account Is to be 1><11d 10 Ihe
257
Alabama Law Foundation, Inc.• which then will distribute the pooled interest in. com@ g~nl!ralcd by the NOW accounts deposits to various l(lW-related projects or programs. The board of lrust!!eS of the foundation will make grilnlS to support projects by the legill profession (or the a(lministr;)tion 01 justice. Alabilma's pl;'ln will be an "opt out" pU)gr<lm. A law~r or firm must a(firmal i\l(!ly Ol>t out. that is, slate their desir@ not to partlcJl),1te in the progl'ilm, by Sep. u~mber 1 each year, or PMtidpation durIng the fiscil l year commenci ng October 1 of that year will be required . In those states wirh IOLTA pfOgrilms, Florida hiWingl.>$I<lblished the first IOlTA program in the United States September 1981, to date $110,000,000 hil5 bIffln gen· efilted f(lr use support of the ad· mlnlstr<llion of justice. Of this amOurll,
in
O\f(!r $4S,000,000 has come from Califor· nla, which has a m(lnd,llory program under which all lawyers and law firms must deposit their trust accountS in interest.bearing NON accounts when the amount is not readily and ecorlorlll· c<llIy identifiable to a particular client . Most state progrJms generate less than S1.0oo,000 annuJlly••1nd in m.lny juris· dictions where S\(lft'up is still in its in· IIlall)ha5C5, [lnlicip~ted rC\lCnue during the first '1'f!ar will be s gnificantly less than this amount. R~na M. Teilgueand James S. Ward, bolh of the Birmingham bar, chaired Ihe committees that de<~loped the IOLTA and elfent Security Funds, respec tively. These efforts have e)(tended over several years, with the initial appoinlments made in 1963 by then.pre!ident aill Hairston. Each Slll::Cessive adminiStration has en ·
couragcd the dt.'Velopment of these pro· grams. Teague and Ward were presented the state bar's 1967 Award of Merit (or their splendi(! leadership and service to the bar In bringing these programs to fruition, The implementing orders for the dient security fund ilnd thl! !O~TA program are printed elsewhere in this issue of The Alabama I..awycr. 'vbu should cawfully review them, As with mandatory continuing legal education, while we were not i1monglhc first jurisdictions 10 embrace these programs, it is hoped we have profitted from the collective eJo:periences in those other jurisdictions ~nd these new vistas will reflt.>ct further credi t on the Alabama Stale Bar. May 5 Is a \l(!ry good day. irldeed .•
- Regi nald T, Hamner
Annual License- Special Membership Dues· Due October 1, 1987
Htilltingdoll College cordially iI/viles rotilO aI/end its Sevellth Anl/tialBenefi., Banquet fealuring (onl/er Chiefjllslice warnn Burger al StVen-lhiny in Ihe IM!l1ing on Monday, October Ihe 1"",lfrh Cratu/ Hall, MOn/gmlety Civic Cel1ler Subscription: Olte Hwulrul Dollars, ;'ulividual. One Thousand DolfflrS, rest.rvet/ table of eight For ticket information, call or write 0, David K. Moms HUlltiltf!llol1 College 1500 fast taitview AW:llut' MonrgJmery, Alabama 36194·61.01 (1.05) 265-0511
258
Important Notice Cove rnor H unt has signed into law Act 87-186 in the jegislative package generally referred to as the "tort reform packages:' Your allent ion is directed to this particular act. Thi s act allows the COllrt which was assigned the case to assess COllrt costs and attorney fees against a party or his attorney if the cour! dctermincs that the case or £II" peal lacks substantial iLlstification. The act also establi shes gllidelines for the cou rt to use in determining whether a lawsuit or a certain claim against a party is frivolous. The act applies to suits, claims, defenses or appea ls filed after its effective date and also to s ~lits, claims, defenses or appeals filed prior to the effective date which are not di smissed within 180 days after it becomes l<aw.
September 1987
ALABAMA STATE BAR 1987-1988 DUES NOTICE (All Alabama attorney occupational licenses and spedal memberships expire September 30, 1987.)
Annual license-Special Membership Dues Due October 1, 1987 * Delinquent After October 31, 1987 TH[ ALABAMA STAT[ RAIt
SPECIAL MEMBERSHIP CARD 1987·1988
~
T'I~lSrOC!~lI'vn""l <@~~~~
license
Special Member Special membership slalUS is acquired pursuant to Section
34·3-17 or Secti on 34·3·18, Code of I\I.lbama (1975). Federal and stall;! judgl..'S. district iluorney5, United St(ltes illtorncys ilnd If you arc adrlll Ucd to the Alabam;l St,lte Bar and engaged In the practice of law, you arc rcqulrC!d to purchase
,In ann\JIlI
occupational license. Scclloll 40·12-49, Code of Alabama (I975), as .1mended Thi s license gives you the right to practice law in the swe of Alabama through September 30, 1988. "hc cost of the license is $150, plus the nominal Issuance f(!C, and milY be pu rcha~ from the probatC! judge or license commissioner (where applicable) in the cou nty In which you prj!iiarlly practice. In addition to the state license, aU practicing anornc!ys should chC!ck wilh their municipal rcYefllle depart!ilents to be surc that Ihc licensing rl..'< luiremenls of the dty or lown .. Iso are being mel. By sending the Alabama Stale e"r a COJ7J' of the license when It is purchasC!d, you will rt.>celve if waI1Cl-si7l;! dL)plicilte of your license (pictured a~) for Identifieation purposes during the 1967-88 license year,
other gCM!rnm()nt 1lllorneys who are prohibited (rom practicing priV.lIC!ly by vi rtue of Ih ~lr PQSili(ln$ ill'li: eligible (or thi s mem-
bcrshlp status. Likewise, llersons admi ned to the bar of Alaba!lla who :lre flOt cng.1gcd in the practice of law or arc emplO'y'Cd In a position not othC!!Wise nYJuirlng a liffil'lse arc ellglb le to be special members, Anornc!ys admiltl..'<l to the bar of AI"oama who reside ou tside the st(l(e of Alabama wh o do not practice in the slate of Alabama also arc eligible for this sta tus. With the exception of state anornc!ys and district ;morncys, sped,, ] membt;!(5 are exempt (rom milndiltory continuing leg.'\1 educatiOn rc(tuiremenls; hawevcr, Ihi s annual exemption must be claimed em the reporting form. Special membership dues are I)ald dlrecl ly 10 the Alabama Slate Oar. M embership cMds, as shown In Ihc sample above, arc issul..'<l upon reeci l)I of the dues and good (or the license year,
Dues include a Sl S ann ual su bscripti on 10 Th e Alabama I.awyer.
Ir you ha~ any qu e~Iions reKardinK your proper membership status Of dUC$ pa yment, please C(lnlill;1Alice Jo Hlmdrill, Membership Services Director, at (20S) 269-1515
The Alabama Lawyer
or
1-80j)..392-S660 (in-sl<llc WATS),
259
About Members, Among Firms ABOUT MEMBERS M, Bradshaw Darnall, III, has been promoted \0 assistant vice president, legal affairs, for Service Merchandise Company, Inc., which docs business in 36 slates and Is headQuancred In Nashville, Tennessee. He has been wi th Service Merchandise for four years, and fOl'merly was senior corpo-
r,lle :morney (or Genesco, Inc. lie Is a 1967 graduale of Cumberland
School of Ulw.
•
v. lee PeUrey announces the relocation of his law offices to 519·C Soulh Brundidge Street, P.O. Box 25), Troy, Alabama 36081. Pho ne (205)
566-1965.
•
Kennelh R. lones announces the opening of his omce for Ihe gcneral practice of law. The milillng address
is P.O. BOK 157, Georgiana, Alabama 36033. Phone (205) 376-2225.
•
Thomas H. Brown announces the opening of his office al One lool!pendence plaza b(!(u tlyc Building.
Suite 410, Birmingham, Alabama. Phone (205) 879·1200.
•
DorOlhy F. Norwood, formerly deputy clerk of the SUI)rcme Court of Alabama, nOVo' has Joined Attorney General Don Siegelman's slair as an assista nt attorney general In the appeals divisio n. Her o(fice add ress Is 40 1·1 Alobamil Stale House, 11 S. Union Street. Montgomery, Alabama 36130. Phone (205) 261-7378.
•
D. Dawn t..1 nkfo rd, formerly In the enforcement divisio n of Ihe Atlanla Regional Ornce of the Securlll(.'$ and Exchange Commission, n()Y,lls an associale with the Aclan ta Inw firm of Harkleroad" Hermance. Omces are located al 2500 Cain Tower·Peachtree Center, 229 Peachtree Slrcct, N.E., At·
260
lanta, Georgia 30043. Phone (404) 586-9211.
gomcry, Alabama 36101. Phone (205) 834-3176.
Howilfd C. AICMnder announces his relirement from the practice of law effective September 1, 1987. Please dlrW fUlu re corresplmdcnce and in· quirles to 2021 Fernway Drive, Monlgomery, Alabama 3611 1. Phone (205) 281·2937.
The Binningham law firm of Clark ;md ScOU, P.A., announces thai Carroll H, SuiU v,lIl and Patricia K. Rea have become memOOI'!l of lhe fi rm, and larry Bradford, AntJtony N. Fox and Michael E. Henderson have become associales of the firm. The firm also announces Ihe open· Ing of (IS Mobile office at 56 St. Joseph Street, First Alabamil Ban k Hullding. P.O. Box 1034, Mobile, Alabama 36633. Phone (205) 433-1346.
• •
Domingo Soto annou nce5 his admission to Ihe Tellas 51ale Bar. The firm office of Madde'l & Soto Is I«ated at 465 Dauphin Street, Mobile, AI... bam .. 36602. Phone (205) 432·0380.
AMONG FIRMS The firm of Corley, Moncus, Bynum & De8uys.. p.c. announces that Sleven C. Pearso n has become an associate of the firm, with ofnces at 2100 t6th Avenue, South, A5h Place, Birming. ham, Alabama 35205. Phone (205) 939-0811.
•
Alice M. Meadows announces Ihat her daughter, Sand r.l K. MNdows. has joined her in the general practice of law. Offices are Iocaled OIl Suile 103, Forwood Building, 955 OO'wn. tow ner Bou lcvOl rd, Mo blle, AI<, bama 36609. Phone (205) 343·77 17.
•
The firm of Vickf rs, Rlis, Murr.1Y and Curran, First Alabama Bank Building.. Mobile, A I ~ ba ma, an nounc· es Ihat J. Marshall Gardner has become a member of Ihe fi rm, and Ihat Marion R. Vickers has retired from the practice of law.
•
Webb, Crumpton, McGregor, 5.U· scr, Oavis & Alley announce the refl"l()l.';ll of their offices 10 Ihe Colonial Financial Ceoler, Suite 700, One Commerce St~, P.O. Box 238, Mon t·
•
•
Peter F. Burns announces that Candls A. McGowan now is associated with the flrm, with offices located at 60 51. Emanuel Sireet, PD. 80x 1583, Mobile, Alaba nla. Phone (205) 4320612.
•
J. Gordon House, Ir., and Idd IN, Morgan annou nce thelr aswclalion for Ihe general pr.lclice of law, with offices located at 2651·F Cameron Slreet, P.o. BoJ( n45, Mobile. Alabama 36607. Phone (205) 478-6600.
•
The finn of Springfi eld & 8eckham announces the rulocation of their of· fice to Suite 360 East, Kovach Centre, 2700 Highway 260, South, Blrmlng· ham, Alabama. PhOne (205) 879· 0500.
•
McDavid, Noblin & West announc· es tl,..1 John l. Moore, IV, formerly St.l f( ,l\Iorncy to Judge Sam 'faylor of the Alabama Court of Criminal Appeals, and law clerk to Jusllce Reneau p. Almon 01 the Alabama Suwcme Court, has become an associate with the firm, with offices located at Suile 1000, Security Cent re North, 200 South lam.lr Street, Jackson, Mississippi 39201. Phone (601) 948-3305.
•
SeptembC'r 1987
The firm of L. Dan Turberville and Associates announces that Sharon W. Woodruff has become associated with Ihe firm and that Lillian V. Garda has left the firm. O ffices are located at 2900 Linden A-.enue, Birmingham, Alabama 3&209. Phone (20S)
679-0000.
•
The firm of King a nd King an· nounc~ Ihat Stephen L. Sexton has
become an assoclille of tne firm, with offices localed at The King Profession· OIl Building. 713 South 271h Sireet, P.o. BOK 10224, Birmingham, Alabama 35202-0224. Phone (20S) 324-2701.
•
Kaufman, Rothfcder lit Blitz, P.C., announces that Hense R. Ellis, II, has become associated with the firm, with oH'ices IOC.lted at O ne Court Square, MOntgo mery, Alab-1ma 3&104. Phone (205) 834·1111.
•
Ralph E. Slate 0/ Dec<ltur, Alab",na, announces that Billy E. Cook, 11'., has joined him In the general practice of liM', with offices located on the fourth "oor of the First Fulcral Savings Bank, 405 Grant StJ'C(!I, P.O. SoK 1344, Decatur, Alabama 35&02. Phone (205) 353·7912.
•
The firm of Hubbard, Waldrop, Re yno lds, Davis & Mc ilwain announces that Carole W. oelchamps has become associated with the firm with offices ilt 808 Lurleen Wolllac€! Boulevard, North, Tusc<l'oosa, Ala· bama 35401 . Phone (20S) 345·6789.
•
Billy f. Foxworth, Bob E. Allen, Arlhur E. Elsner and Eugene P. White announce the relocation of their of· fices from 1)8 Adams Awnue, Suite 1, Montgomery, Alabama 36104, to 640 South McDonou8h Street, Mont· gomcry, Alabama 36104. Phone (205) 264.()0I2,
•
Armbrechl, Jac kson, OcMouy, Crowl', HolnlC$ & RI,!t!\'C$announces that Oabnt!}' Stagg Foshee and Edward A. Dean have bc<ome mel'll' bers of the firm , and W. Steele Hoi· man, II, D. Brent Baker, Richard E. Jesmonth and I, Wesley Sowell have be<:ome assoei.lted with th e nrm. Of· (lces are 100000ted at 1300 AmSouth Center, P.o. Boll 290, Mobile, Alabama 36601.
•
Jam es Pallon and William Goodwyn announce the opening 01 a new o(flce at the follOWing address: 22 Inverness Center Parkway, Suite
I
610, Birmingham, Alabama 35243. Phone (205) 995-9501 . The address of the main oI'nce remains: 2074 East Lake BoullNolrd, Birmingham, Ala· bama 35217. Phone (2051 841·6234.
•
The firm of Prince, McGuire & Coogler, p.c., announces that Richanl M, Nok'fl has become associated 'NIth lhe firm with offices locat~ at 2501 6th Street, P.O. Box 128, Tuscaloosa, Alabama 35402 . Phone (2051 3~51105.
J. Ronald
•
Boyd, J. Gary Pate, Rick Fcrnllmbucq Imd Gt.'orge C. OoU81 ~s, Jr., announce th at they have formed th e law firm of Boyd, Pall', fl'rnam· bucq & Douglas, a nd Robin Villlniji Sparks Is an assoclOle of the firm, TIle firm's o(flces nre lociltcd at Suite 302, 2801 Un iversity Boulevard, Birmingham, Alabamn 35205. Phone (205) 930-9000.
•
Joseph O. Whitehead, P.A., an· nounces the relocation 01' j~ Dale\llile o(flce from 230 North Daleville Avenue, DaleYl11e, Alabama 36322, 10 238 North Daleville Avenue, Daleville, Alabama 36322. Phone (20S) 596-3486.
•
·M
UNITED COMPANIES LIFE INSURANCE CO.
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Unlltd Companiel II a one-billion dollar; financial company listed o n NASDAQ. J. Mlchad Shields Phone: Soulhcreft Bldg" Sulle 201 (20!5) 879-0387 1025 Monl3o mery Highway Blnnlngham, AL 352t6
The Alabama Lawyt'r
261
Llwyer Referral Service Report,_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
HELP! by J. Michael Williams, vice chairman, lRS board of Itu§lees You would nOT be a law~r if you did not care abou t kelpinll your (ella.... clll-
len. The
SlaTe
bar lind your profession
havc prO'.'idctl )OU with an excellent means of ell(nlng a 11\111)8. and the cill· lens of Alabama hOM! prOYlded you with courthouse facilities in a unified judicial system and a manner by which yOY may
pracllce Ihat profession. Fonner b.1r president Bill H(!if'$lon, Jr., once described it professional as "one who puts In more than hClakes OUI:' The Lawyer Referral
Service Board of Trustees Is calling for you 10 pay)'OUr "civic ren!" and pUT more time and cUcrl In lO servi ng the
profession. The LRS program began In 1978 under former president Sonny Hornsby (lnd
grew wi th Cluhusiastlc SUPI)()rt of the b.1r, yel, over the past several years, Ihlrticipa11011 In the pr08r~m has declined conslderilbly and there arc a number of Counties with no participants at all. The service needs members from co.ery coon ty, but particularly from these: Au tauga, Bibb, Blount, Bullock, Chclokre, Chrlton, Choctaw, darke, Clay, Cleburne, Coffe(), Colbert, Con<."Cuh, Coosa, C(IYington, Culiman, Oill1a:;. DeK.1Ib, Escambla, ~ Franklin, Gcneva, Greene, Halc, I-Icnry, Jad<son, lawrl.'nce, limestone, lownde~, Macon, Marengo, Marion, MiHshall, Monroe, Mor83n, Pickens, I Russell, St. Clair, Sumter , Washington and Wilcox. arc no piHtleipants In the underlined counties). The cMcep. tlons to this particular call for assistance Me Jdferson, Madison and Mobile counties, whose local bar associations operate
'"
their own referral services, h()w(''Ver, it is COrtaln they also cou ld uSC additional membcl'5. Il ls hard to believe thatlRS is having a problem with Pilrtidpation. Theil! h~ been large numbers of new lawyel'5 en· tering the bar each ~ar, with 32 pereent of our membe~hi p entering the bar since 1981 and 69 percen t .ince 1971. Accord· Ins to the recent suM!y In The A/abilm,l Lawyer, May 1987, 47 percent of the bar report<.'(i income of less than 550,000 per year aod 62 percent r~rted an In· come of less than 560,000. It certai nly aPl)(!ars there 15 a Subst.1ntlnl number of al1orn~ who should be av;lllabic to pay their "civic ren t." I continually hear n number of atlorneys discussing the economics of liM' practice. Why not part icipate in lRS and consider.lbly increa~ your client base? Whnt do you doi' First, call1RS and a~ for Joy M eininger, 1-800-392-5660, to e~press your interest. You pay 537.50 per year to l)<Irticlpate tllld holp cOYer the OIr'Crhcnd of the progl.lm, and you must l)rOYide ploof of professional responsi. bility Insurance wi th CQ\l(ltagc of 5100,OOO/SJOO.ooo. '1ou then sign up for II ma~imum of len arcas of your legal experti se. You arC rt.o(errOO only caSC5in the 1><1rticular nfC!as you lklYC designated. For instance, if you only do ta ~ or corporate work then you will not be referred a D.U.!, or criminal case. I aCCel)t . referrals in the maximum number of areas available to me and hif\le parlicllXlted in the program since entering the bar. It has been a good foundation on which to build iI l>r;ICtlce, and I rcccl\lll an il\Ierage of one referral per working day. In fact, from June 1986-April 1987, thcro IM.'!rc 9A14 (cierr.lls made by lRS. There Is a great demand and need for legal services.
,In
Those who go through the lRS are not \!Cry dlfferont from other clients who seck your scr. . lces th rough other channels, Some clients referred to you will never conl."!ct you, but most will. Some will not sha.v up for their appointment, but mOSt will. You may not Insist on the 520 con·
sultatlon fee, b\1I mOSt will pay it If you make It il policy to colll!Ct this fcc, I generally charge tile consultation (ee because ills a professional Wit)' to establish a legill relationship, and you ccrt(linIy "weed oot" the non-serious elienl. If a problem Is not worth the payment of 520 (or advice, the ellcnt probably did not have a very serious problem , Most of my referrals do require (urther legal services. Abou t 70 l>freent of those requiring furthN service ultimately pay between 51()()'5S00 nod approMim<1tely lO percent result In fees of more than 5500. Almost all my successful social security disability lind worker's compensation cases resu h In fees of OYCr $',000. Some of these cases nlso lead to substan· tial pef$Onal injury cases, The largest fee I recellr'Cd through n lRS referral was approximately S18,000, Our execUlive director tells of one referral case resulting In a 5500,000 fee. Plea$(! participate In this worthwhile program. \Ne do n<.>cd you nnd you will be pleasantly surprised with the business these referral s will dlM!lop for you. The greater reward of this servk:e 15 thilt you will be helping your fella.v citizen. Most referral clien ts have never contacted a lawyer, and they will have a problem or concern that is foremost on their minds, Your counseling miw be all thnt is nC(.'(led to ease their concerns or there may be further services necessary. No matter what the outcome of the initial consultation, though, the neMt time they or their friends or filmily need a lawyer, Ihey will come directly to you . Your \101. unleer service to the bar will have cretlt<.'(\ many n<....... clien ts and Is not that the w.ly 1M.'! build our pr.x:t1cesr •
J. Michael WiJliilms, Sr., is il 1977 graduate of Jones law Institute. He is a sole practitioner In Auburn, Alabama, and SCrvcs as vice chai rman of the L.1wyer Referral Servke Board of Trustees. His report 15 the first of sever~1 to be publish<.'(i In this journal.
Sl'~cmbcr
1987
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Riding the Circuits
Blount County Bar Association
Sumter, Greene and Marengo Counties Bar Associalion
The Blount County 801t Association elccted o(Ocers for the year of July I,
1987, through June 30, 1988,
a$
foilows: President: Michael E. Criswell.
On00/11a
Vice-president: John R.
~t \!th'\MI(e,
Onooflla
The bar association
Scot1r.boro V1ce-p~idcnt:
ROnald Drummond,
S<:otuooro Se<:retary/tre.1Sufcl:
lenlfer Holt, Scotlsbolo
Jr.,
Ikmopolls Nplhan C . WJtkl ns, Jr.,
Olll!onla
Newly-elected officel5 of tile Jack· son County Bar Association are: President: Wallace W. I-taralson,
17th
Greene and Marengo counties. met May 11 and elected the foU<M'ing officers: Presldenl! William T. Coplin,
SccretJry/t,ea$Uffl' : Herbert 8. Spa.k$. Jr"
Jackson County Ba r Association
or the
Judic;i,,1 Circuit. composed of Sumter,
Llvlng,lon SL'Creta ryl1.e asu 11! r:
Pd ua Slllele, EUIllW
State Senator and bar association member Rick Manley was the fca· tured speaker. Senalor Manley rl!viewed the current legislative session with special emphasis on the tort reform Ptlck.l ge.
• 26J
Consultant's Corner The foliowloBls a rf.'View of and com· mCflf.lry on on office /luromarion Issue
with current imporflloce to the Icgill com munity, prep;ired by the office /lulom<1flon c;onsuIWn! /0 Ihc Stale bar,
Paul Bornstein, whose views necesslJrlly
Ill o~e
llre
they offer no return nor do they appreciate In yalue. In fact, they do lillie nlore than use a bit 01 electricity to process data and text more rapidly than a miJOual system. Like ilI1 automobile th<ly (.'\o'entually wear OUI andlor become pro-
no/
of rhe sUite bar.
This Is Ow foullh arlle/e in our Cansull.1m 's Comer series. \o\t> would /Ike /0 hear (rom you. oolh In cril/que of rhe ar-
tic/e wriUcn lind sussestillB (OpiCS for future articles.
Office automation- invcstment or expense One thousand dollars for an IBM S~lcm 321 T'NO thoosafXJ dollars (If you
are lucky) 101' a 341 Foor hundred dollars for a DisplaywritCfI Many owners of this (and other vendors' equipment) arc first
shocked, then quickly angered to find o ut what used hardware will brinli in to-
day's market. 'What happened to my In· \If:SlmCl'IIl~ Is a common complaint and an understandable one. The ansv.-er, although it may appear argumentati~, Is: "Hardware is an expense. Software, and its files of text and data laboriously acI;umulated, arc the In'o(!stment." The anSVvt!r will not milkc It pilSt your accour'ltant or tax adylsor, but It Is the reality. In fact, thetax law generally treats hardware {IS an InYestment, to be depreciated, and software as a cost, to be expensed.
hibi tiyeiy expcnsi,·c to r'llalr\laln. Likewise, their value drops precipitously with age. If you Insist on viewing Ihem as In_ YCstments {I t least ackrlOwlcdge th(.'Y ill!' amonll the IoYOrst you can make. That said, why consider an automation solution at all If II does not produce a decent return?
The expense Computers, their perlpheral attachments and the maintenance costs thereof are an expense. Bluntly stated,
The investment Autom"tion can be a sound inYestment, and d~ yield a decent return, provided you vie-w it as a trinity of hard·
26'
BORNSTEIN
ware, software (designed for law firms) and a supporti'o(!, legal'specinc vendor. I! Is the latter two components of an aUlomation system, software and 'o(!fl(jor, that truly constitute the I~tment. Properly selected, nurtured and managed, they can yield a handsome return. Good, legal.specific software can make a significant contribution to the productiyity of a law firm, and not just to secretaries. Special appl ications, such as conl1lct-of·lnlerest checking, docket control, case management and litigation support, are mllable to Inc 'ease the productivity of the legal priletitioner. A decently computcri7.(.'(/ billing program, with or without an Intt:griltr,.>d genera! ledger, easily can Increase billable hours by 15 minutes a day. (Extend that by 2S0 days a year, at $80 per hour, (or a surprise.) Specialized soltware ekists to sharpen the completeness of chalie accumula· tion and billing for long distance telephone tolls, postage, copies and laser printing. There arc outside data bases thilt Increase professional produclivlty, such as legal research (lexis and WestlilW) and MANn. A knowledgeable vendor who understands your practice can be worth his or her weight In preced(!oIS. A com· petent Io'(!ndor shOuld be able to offer a complete array of teg.ll-specilic products, Integrated where necessary and installed by people who understand law firm OJX!filtions. Strategy Your Investment "stratcgy," when it comes to law nrm automatlOIl, should ( p<Haliel that of securities Investments: - define )'0\1( Investment objectives (wh"t you are allempting to accomplish); - find a broktn with whom you arc comfortable, I.e. a vendor; - accept his or her recommerldatlons, i.e. Invest In software; - pay his or her fee, I.e. buy the necessary hardware.
•
September 1987
Principal Address by Secretary of Transportation Elizabeth Dole Elizabeth Hanford Dole deliyered (hc
principal addre;5 during the SalUrday morning convocation of the 1987 A/a路 bama St.1fe Bar annual meeting. For Ihose unable /t') 11IIend h~r iJddre5S, or Iho5C who did ilnd wanwd /0 tJn;ov it again, Ihe fal/ONiflB is 11 copy or her
remarks.
Alabama Slllh~ Bar Mobile, Alabama luly la, 1987
Let me say at the outset that I feel deep' Iy honored to $rand before Ihl$ dls!;n-
guish<.od meeting of the Alabama Sar ASsoclatiM, Since Its birth in 1679 Ihe Alabama Bar ha~ produced SOMe of the
greatest legal minds on both sides of the Mason路Oixon line. This bar is synonymous with personal ach ievement and pl,lblic service from Th omaS Goode
Jones, former governor, former U.S. District Judge and tlulliur of the first code of professional (IIhies-whlch was used throughout the nation until the 1969 American Bar Association code-to those of you who stood fou r-square for the modern judic;j(,ll <lrtlcle In the AI<Ibamn Constitution. And depending upon whose history book )-VU rt.oad-Alabama'$ or North Dakota's-you have the flrsl unified bar In the nati on, and your assocla路 tion as an agency of the stilte government does an outstanding job as licensor ilnd regulator. I also add my pelWnal congratulations to Bill Scru ggs on an outstanding veMof leadership of this association. I'll tell you how distinguished your outgoing president is. When Bill Scruggs speaks, pe0ple listen. And the ''Alabama'' group sings. I was delighted when Reggie Hamner invited me here today.
The Alabama Lawyer
DOLE And one hilSonly to lOOk out :\1 the female faces in our aud~nce to realize in thi s 200lh year of our Constitution how much has changed -Jusl in the p.lst two
decades. Thirteen percent of Ihe lawye rs
at the bilr in thi s state are women, and 42 l:>ercent of the freshm;ln liIW class at Ihc Uni~r$ity o f Alab<lm a are women.
265
I remember well my first day at Harvard Law School, one of 25 women In a da$s of 550 eager students. I'll ncycr forget being aCCOSloo by a male class. mate who demanded to knOA' what I was doing there. "Oon't)<)u re~lIze,~ he 5.'lld In tones of moral outrage, "Ihat there are men who'd give their righ t arm to be In this law school! Men who would use their Iegill educationl" Obviously, he feit I was taklng lhe place of 11 man, And come to think of it, some may h(lve felt that w;,ry when I became Secretary of Transportation. It's been said that the lawyer's trJde consists of questiOrllng everyth ing. yieldIng nothing and t~lkin8 by the hour. Today, I promise to try to dlmrove Ih ~ t adage. I am reminded of a famous Story aboul Ben FrankUn at the fi nal session of the Constitutional Convention In Phila:delphia, The great sage was utwJell, afflicted with gout and suffering am(iety ~r the fU1Ure of his country. I-Ie pointed
allhe chair occupied by presiding officer George Washington and the sunburst that was ca~ InlO lIS frame. He had often noticed Ihe desl,n, said Dr, Franklin- but only now, with their work done and the historic docurrent itself ready lOr submission to the SIate$, could he conclUSively say Ihal it was a riSing, not a set· ting. sun that he saw. Today I think it is important to put our observance into perspeaive. The Constltution is not merely an artifact, to be ~Iuted like the passing flags on the Fourth of July, or sealed under glass In a marble shrine. It is lhe American-in 1967 as much as In the lense and uncertain summer of 1787. lWo hundred ~ars 8g0, 55 men g.... thereel In what was Ihen kna.vn as the Pennsylv.lnla State House to consider al· terna tives to the existing Articles or CDnfedefiltion. History tells us that whal we know as the Con~l i t u t 'Qnal Convention didn't get under way on time. In fact, it started t'M) ......eeks later-because the
WE WANT YOUTO JOIN OUR SPEAKERS BUREAUl n,. Commit" on t...wyvr PubIK; ReI<It~ !nIOfTTI/Inon and Media Relat.on. .. ir'llt'Mong a Ita'twoc\I
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other inttfu ttc! 8fO\l~ ~QmII'IIn" wiD tompilt ,lit! 01.IIIwy.n In the lI ... t. who a, • .,tc:rtlt.:d., t.trwIi on the Optbk .,', burt ...... lind ..... trxk!1IIIOr to prc:Mde lJ'I'akml from the "Frt COl'llmIJ"'t~ 01' lI'In<:rlli or~1I from whil;1I a r~ft for a weak ... 'II r«flu«!. All requtttl WIll IN! ~ tlll'Oll9h the AiabaITlll Slate &or 1l<!lI(\ql.lllrt'r.. If \I0Il ort Intfruted In MMIl9 !If • ~r 01 t ~ .~I«tr'. bur~II'" pjellH fill out ttl. follow.ng form and rl!· !Urn It to t.... AkiblJlmil SllItll Bar, P.O, BoIl41S6. MonlBQffitry,
AllIlHIlfWI 36101 .
SPEAKER'S BUREAU APPLICATION Name _________________________________________ Fi rm Nllme (If IIppllcable) _____________________________
Add rlU _______________________________________
Chll ______________ State' ____________ Zip ________ Tc~
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rOolds to Philadelphia were 50 badllt took George Washington four d3','S 10 tl'<l\el by carrIage from Mt, Vernon to Philadelphia. Today, that ~me trip on lhe Metroliner t.1kes one hour and 37 minutes. Of course, If the conven tion were held 10day, there'd nol only be men represent· Ing Ihe colonies, but women as well. Two hundred years later, we pause to remember the men of Philadelphia, \/lie may remember little of their dolY"tooay deliberations. And most of the individual signers may be losilo Ihe mists of time. But Ihe Idea that broughtlhern together-thai seminal concept 01 self.gOY(!rnmen! and shared responsibility- of Indi. vidual opportunity wedded to social responsibllitY- Ihls Idea lives on in our fluid, dynamiC, highly competitive yet deeply comp.mlonate society. It live$ on In the law, It lives on in the arena of politiCS. It lives on where anyone holds to a faith in the poo.ver of seemln81y ordinal)' men and \o\()fficn to accomplish extraordinary things, for themselves, their COuntry and their posterity. Madison and the rest of the founding fathers diffused authority among us, Ihe people, In order to preYCn! 100 great a centrnlized authority from encroaching upon our individU<lllibenies. 'ret fOI'such a system 10 work, the people must accept their OA'n obligation to control g<M!rnment and contribute their peoonal ta. lents to the betterment 01 ilii. One recalls the words of a great juri st, Robert H. Jackson, who wrote in 1950, "It Is not the function of our g<M!rnment to keep the citizens from failing Into error, It is the fun ction of the ci tizens 10 keep the 8~mmcnl from fJlUng Into crror:' ThaI Is the challenge and the 8(01)', not only of democracy but of the legill profession Itself. It is the answer to those cynicS who dismiss our profession as an exercise In sclf-cnrlchment, and II remains the central dilemma facing the people of this country in 1967, In the decade of Ihe '70s, many Ameri· cans felt that as individuals they couldn't make a difference. Yet, If we SlOp believing In ourselves. then how could we beIIC11e In Madison's carefully desIgned system of self·goYemmenH
5ep{cmber 1987
As people turned inward, It came as no surprise that writer Thomas Wolfe dubbed the 1970s the "Me Decade:' Happily, In recent years, thc "Me Decade" has been replaced by the "We Decade:' as citizens all across the country have regained confidence in themselves and In this country's mission to SCNe as a beacon of hope on an oppressed 1)lanct, Today Vv'e are witnessing nothing less than an American renalsSllnce, a grassroots revival of those fundamental principles that give character to our land and reality to our dreams. 1M! are renewing the andentldeals of hard work, pride of family, IDYe of freedom and trUSt In God. INc hilYe redi 5C~red our roots-and we art! r<!achlng for the stars, For SS consecUllve months Americans have enjO')'ed the benents 01 economic grO'oYth. Dvring that time, productivity has risen. Inflation had declined to its 1000000st [eYel in a qUiIJ1er-century. Unem路 ployment is at a seven-year low, and over 13 mUHon new Jobs have been creafed. Simultaneously, we Me called on to meet the challenge 01 defending freedom In a dangerous, somellmes desperate, era. Since taking office. President Reagan has made significJnt headway In rebuildIng our defenses ilnd making America more secure. This is no time to rest on our laurels, or let down our guard. Skimping on defense now could undo aU v.oe have achieved since 1980. It could undermine not only our own security, but that o( our closest friends. History reminds us that there Is nothIng new to cries (or less defense and more domestic spending. During one debate in the Constitutionlll Convention, a deleg."e ro~ to his fcct and moved that "the standing army be restricted to 5,000 at any time:' This prompted George Washington, as presiding officer, to suggest an amendmCrlt of his own-to pro-hibll any (orelgn enemy (rom Invading the American soil with more than 3,000 tfOOl)S! But what are 'NCdclendlng? 1M! defend more than factOries-more than shopping malls-more Ihan territory. We de-fend the ~Iues that have blessed this
The AllIbama Lawyer
land and set it apart in the family of nations. And the record 0( the ConstituTion路 al Convention leave! no doubt that (lur n;ltion's founders v.oere sustained by their faith In God. As George WashlngtOr"l once said, "Of all the dispositions and habits which lei'ld to political prosperity, religion and morality are Indispensable supports," This moroJng. I am looking at AmerlC.l 'S nrst and uhimale IInc of de(enS(>. For surely \'Ie share the belief that the source of all our national strength lies in that Inncr strength that forms our attitudes, sha~ OUr ambitions and nurtures our loved ones. But it is not enough to be a passive 0bserver of thtt1imes, or to toss your hat in the air when thc p.,radc goes by. In the words of that greatest of American individualiSTS, Ralph Waldo Emerson, "NO man can have society upon his own terms. If he $eeks iT, he must serve It, too." Each of us is called upon to render service In one fOrm or (lnother. In this land of OPIx>r!unlty, that is the corresponding obligation. In my own life, I haYe tried to make a contribution through public service, In my vi(!W, there Is no greater satisfaction than grappling with Issues and forging poliCies that can make a p0sitive difference in the lives of millions 0( one's countrymen , For the past four years, I've had the rare privilege of directing national transportation policy. It's Interesting to note that to reach the Constitutional Convention, our founding (athers traveled by foot, by horseback and by boot. Getting there In less than (I month's time-that was thc real "miracle at Philadelphia!" To Ihe men and women of 1787, the Internal combustion engine was 11 5 exotic a plpe-dream as moving pictures or the voyager aircraft, Today transportation is an S800 billion industry that Is constantly reshaped by technological breakthroughs. \M;! tf3'Jlll al great speeds to places undreamed of by our forefathers by land, sea, air and , nO'W, space. The challenges posed by such an intricate and sophistkated s~tem have been to me a source 01 unparalleled Intellectual exhilaration Jnd deep personal satisfaction. Rec;ently, a most exciting
event of my life w,lS standing 00 the Ooor of the N(!W York Stock Exchange as eilger Investors bought every last share of the gCM:!rnment's stock in Conrail, our freight railroad . In four years, I h~d witnessed a sickly ward of the state tril/lsformed into a SI.88 billion publidy-traded, privatelyowned railroad. At the same time, v.oe finally transferred thc only two federally-ownoo airportSW"shlngton National and Dulles-to a reglon,,1 authority, Eight previOUS attempts had been made since 1949. I've fought attempts to roll back economic deregulation of the natioo's tfilnsportation Industries-a rclorm that has saved American consumers and producers literally billions of dollars In reduced travel anci shipping costs. ~ have saved IiYeS through grassroots campaigns to ge( drunk drivers off our roads and highw<lys. oar Is the first , outside of the military, to come forth with a comprehensi'o1! drug abuse program, one that Involves t:lndom drug testing. Insures the safety of the tra\'Cling public and safeguards constitutional protection5- It hasn't made me the most popular person around the ACLU, but I am committed to ensuring that the American public has what it demands and deseNCS -a drug.free transportation system. AS I reflect on the challenges that stili lie ahead, I'm reminded of a f"moos story about Justice OJiver W;!ndell Holmes, who once found himself on a train, but couldn't locate his ticket.
GENERAL COUNSEL The Alabama State Bar now ISllcceptlng al)plications by letter with resume from qualified lawyers for the position of General Counsel. These should be addressed to Chairman, Selection Committee, P.O. Bo.. 671, MonlKornery, " 'lIb,una 36101. This I>osition requires .m e~perlenced lawyer with a strong professlona! background. Salary commensurate with experience and maturity. The Alaoomll State Bar Is an equal oppor. tunity employer.
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While the condlJdOf watched, smiting. the 68-year.old Justice Holmes searched through all of his pockets without suc· c@ss. Of course, the conductor recog· nlzed the dlsUnguished justice, so he said, "Mr. Holmei, don" worry. You don't need your ticket. You will probably find it when you get off the tl'llin and I'm sure Ihe Pennsylvania Railroad will trust you to mall It back later." The Justice lool<ed up at Ihe conduc· tor with some Irritation and said, "My dear man, Ihalls not Ihe J)I"Oblem al all. The problem Is nol where Is my ticket. The problem Is where am I goingr Where, Indeed. Where are v.'Il golngr My fellow Americans, In this bicenten· nial year of the Constitution, let us remember that lhe decisions we make 10day can affect the Ii'NSof Other people as dramatically as the founding fa thers' have affecled us. HilVingli...oo With COnstitutiOnal freedom for two cenlurles, 'Ne can all too easily forgel how precious and rare that
freedom is. Our ult mate obligation, then, Is to protect the opportunity that 001' constitution milkl';!S possible. It Is an oblig.ltion we owe not only to ourselves, but to the framerS who ri sked eYCrythlng for freedom, and 10 countless men and women of bravery and vision who hiI\IC bonded thi s nalion with their blood and loll and sacrifice. In closing, let me share with you an eJC· perience that Bob and I had when we visIted lhe Soviet Union a few yearS ago for the U.S.·U.S.S.R. Trade Conference-an eJeperlence I will never forget. At our embassy in Moscow, Ilalked to memberS of two fam lies from Siberia, who had sought ilsylurn from the religious persecution tht."y had l!rlcountered In Iheir own mother country. In attempting to reach our embassy's gatCS, one of the young sons was cllught Iyt' Russian guards, beilten In full sight of Ihe two families and then dragged wway. Three weeks tater, they learned that he had been thlO'Wn on Cl train m.ck to Sj·
beria. II was nearly live years-separated from Iheir friends and family and living In the basement 01 thaI embassy-before the $v.Iiet gQV(lrnment allowed those families 10 emigrate 10 Israel. As we dl"O'v'C up to the alrporlto begin our long trip home and I looked at that airplane sltling on the runway with "United States of America" emblazoned on its side, I thankL.od God I could come home to a country where freedom and democracy are more than Just hQIltM' spaces. E~ry cllii':cn has a stake in g<M!mment that Ii~ up 10 115 noblest promises. Each one of us is obliged to pass on to our children the freedoms that the men of Philadelphia entrusted to us. They created something unique In thc annals of history. leI us not only preserve their past-let us make certain thatlhe present is worthy of preserva tion, so thilt in another 200 years, our descendants can say as proudly as we do too..-.y, "I am an "merican:'
Biographical Info rma tio n _ _ _ _ _ _ _ _ _ __ __ _ _ _ _ _ _ __ _ _ _ _ _ _ _ _ _ _ _ __ On February 7, 1983, Elizabeth Hanford Dote look the o,Hn of offiCe as the (lighlh Secretary ofTransPQrtation of the United Slates. After more th .. n fOur ~ars In of· fi ce, she Is the longest serving secrelary of transportlltlon since the department was created in 1967. As secretary, Dole heads a department with 100,000 emploo,-ees and a budget of approximately $28 billion. She sets pol. Icy direction for the nation's aviation, highway, railroad, mass transit and mario time resources, and 15 the first woman to head a branch of the armed servicesthe U.S. Coast Guard, a leader in the na· tlon's drug interdiction effort. 5e<:retary Dole serves on the National Drug En· forcement Policy Board, and President Reagan appointed her to serve on the vice presldL'I"lI's Task FaKe on TerrOl"ism. Secretary Dole has been a leading ad· vocate of economic deregulation of transportation Industries and currently 15 urging Congress to complete deregula· lion of the truckifllindustry. She also has been in the forefront of privlll ization, with the sale of Conrail, the government'S freight railroad, and the transfer of federal
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airports Cllrclldy completed under her st(.'Wardshlp. The Conrail sale was the largest Initial industrial publiCofferlng In US. hlslory, nelling $1.68 billion for the federal treasury, helping to reduce the feder,]1 delicit. Her departm ent now is leading the gCNernment's efforts in the privillization of commercial space transportation. Dole has accomplished major economic and safety reform s across all modes of transportation. With safety as a top priority, Secretary Dole created the Safety Review Task Force to conduct In· depth reviews of all tr.Insportatlon safety progJllms and led efforts to Impn:MJ the security and safety of International air service. Prior to Joining Pre5idenl Reag.ln's cal> loct, she was assistant to the Presldenl lOr public liaison at the White House. From 1973 unlil 1979, she served as a member of the FOOE!ral Tr3d .... Commission. Her public service also t-as Included presl· dentlal appointments as executiYe direc· tor of the president's Committee on Con· sumer Inlcrests and deputy special assist· ant to the presidenl for Consumer A(.
(airs. Dole graduated with distinction in political science from Duke Unlrersity. She was presidenl of the student body and erected to Phi Beta Kappa, Duke honored S@cretJrY Dole with Its DIstInguished Alumna Award In 1985. She received her law degree from Harvard law School and a master's degree in education and go.oernment from Harvard Uni~rsity.
The secretary is a former member of the board of trustees of Duke University and currently SCMS as a member of the board of visitors for the Duke University School of Business, She also is honorary chairman of the bOilrd of ~rseers althe Duke ComprehensiYe Cancer Center. She is a member of the Visiting Commit· tee of Harvard UniversIty's )ohn F. Ken· nedy School of GcNetnment. She recenl· Iy A:!Celved the Humanltarlan!w.lrd from the National Commission Againsl Drunk Driving. " native of Silllsbury, North CarOlina, the secretilry Is mnrrled to Senate Republican leader Robert Dole, the senior United St,]tes Senator from Kansas.
•
Sep'em/x!r /987
ORDER WI-tEREAS, the BOilrd of CommIssIoners offhe Alabama Stale Bar has recom路
mended IhaC11l1! Court establish 3 etlen! Sec;urily Fund In the State of Alabama;
"d WHEREAS, the Court has consldcfl.-d the recommend.uion and considers the recommendation, with modifications, appropriate;
IT IS, THER EFORE, ORDERED that the 'i'\lilooma Siale Bar Cllcll1 Security Fund
Rules" be adol>:ed effective October 1, 1987, .1nd shall reOld In aCCO(CI;II1CC with Ihc .Ipp(lndix 10 Ihl s order,
IT IS FURTHER ORDERED Ihal ilny Interested per.;ons Shilll hi1vc until September I, 1987, to submit to the clerk or the Supreme Coun, P. O. BOK 157, Montgom. cry, Alabama 36101, wrjllcn objections or comments concerning these rules.
APPEND IX ALABAMA STATE BA R CLI ENT SECURITY fUND RULES I. SCOPE These rules shilligoycrn proceedings conducted 1I1)()n apl>lications for rei mbu~nt from the Client Security Fund of the State Bar established pursuant to Rule of thc Alilbama SUI)rcme Coutt. II . DEFINITIONS For puq)()ses of these Rules, the follawing defi nitions ShilllllllPly: A. The "Committee" Shilll meiln the Client Security Fund Comrnllll..'f. B. The "Fund" sh<lll mean the Client Security Fund of the Alabama State Bar. A " Law~r" shllil mean one who, <ltthe time of thc act complained of, was a member of the Alab.1ma Stilte 8ar, was domicih:d In the Stille of Alnb<lma, and was actually en8ilged In the practIce of law in the State of Alabama.
e.
The faClthill the act complained of took place outside of the Stale of Alabama docs not nccesS.lr1-
The Al.l bama Lawyer
Iy mean thai the lawym was not engaged in the practice of law in Alabama. D. "Reimbursable Losses~ are only those losses d money or other properly of dients of lawyers which meet Ihe follCM'ing tests: (alThe dishonest conduct which occdsioned the loss occurred on or after the effective date of these rules; lind (blThe loss WdS caused by the dishonest conduct of a lawyer acting either as an allorney or as iI fiduciary In the mailer In which the loss arose; and (clThe lawycr shall h:we died; been adjudicated a b.lnkrupt; been adjudicated an incornpcotent; been disbarred or SUSpc!nded from the practice of law; 'IOluntilrily resigned from Ihe practice of law; left the jurisdiction or Carlnot be found; become a Judgmcm debtor 01 the claimant, or shall have been adjudged guilty of il crifTle, whiCh Judgment or judgments shall h<M! been predlcatoo UI)()n the dishonest COnduct of the lawyer; or the Committee shilll have determined that the claim is an approprl;ue case for consideration for reimbursement because the loss was caused by the dishonest conduct of a member of the Alabama State Bar. E."NOn-reimbursable tosses" are as follQW$: (al losses of a spouse, child, pdrent, grandparent, sibling. partner, associate or employee of the attorneyls) causing the losses. (bl Losses covered by any bond, surety agreement or Insurance contract to the extent CO'.'en~ the-eby, including any loss to which any bonds-
man or surety or insurer Is subrogMed to the extent of thllt 5ubrog.llion interest. Icl losses of al'ly fl nand al institulion which could only ~ recOYerable under a "banker's blanket bond" or similar insurance or SUf'Cty contract, whether or not the institutioo had such bond or contract in force. (d)LosSt.'S which are rf!C(M'!rnble from some other source. lel losses barred under any appHc.lble SMlule d limitations. F. " Ol shonest Conduct" shall mean wrongful aCb commiued by a lawyer agtllnst a I>crson in the manner of dei.llcatlol'l Or embezzlement of money, or the wrongful t.. klng or coO\(!rslon of money, I>ropcrty, or mher things of value. C. "CI,1Iman!" means a person who has applied to the fund for reim_ bursement. H. "Client" means a person engagIng the I)rofessional legal services of a lawyer or for whose benefit the lawyer is ilCting in a fiduciary capacity. III . APPLICATIONS FOR REIMB URSEMENT A. The Committee sha I prepare a form of apl)lic3tion for reimbursement. 8. The form shall be sworn to and executed under pc!n.1lty of perjury ilnd shall require. as minimum informallon: la) The name and add ress of the lawyer. Ib)The amount of the alleged loss. (cIThe date or pcodod or time during which the alleged loss Incurred. (d)The elMO upon which the alleged loss W.1S discovered. (e) The nam~ and ilddress of the aJll)tlcanl. (I) A geneti'll statement of {acts retMlve to the i'lpptlciltion. (gl A statement that the appliCant ll.1Sread these Rul~ dnd agrees to be bound bv them. (hiA SlaletnCnllhill the loss was not C<M!red by any insurance, indemnity or bond, or if so
26.
covered, the name anel add ress of the Insur;lOce or bonding (oml)'lny, if kn(MIn, and the extent of such coverage and the amoont of payment, j( any, made. (i) A statement that the al)pli. cant agrees that the resu lt of the investigation together with 311 evidence In connec· tlon therewith shall remain conndenlial eKCept as other· wise PKNided herein. (j) Said ill>P1icatlon shall ei ther be tYIx.'W·iuen o r printed. If not legible, It shall be forthwith returned to the appll. can t. (10 The form or app lication sh:lIl conta1n the following statemcnt In bo ld tY lle: " IN ES1:'\llllSHI NG TI-IE CLIENT SECURITY FUND, TH E A LA BAM A STATE BAR DID NOT CREATE NOR ACKNOWLWGE ANY LEGAL RESPONSIBtllTY FOR THE AC TS O F INDIVIDUAL LAWYERS IN THE PRACTICE OF L.A\IY. Al l REIMBURSEMENTS OF l OSSES BY TH E CLIENT SECURITY FUND SH ALL BE A MAnER OF GRACE IN THE SOLE D ISCRETION OF TH E COMMI'J:. TEE ADMINISTERING TH E FUND AND NOT AS A MAT· TER OF f(IGt IT. NO CLIENT OR MEMBER OF nt E PUBLIC SHALL HAVE ANY RIG HT IN TH E C LI ENT SECU RI TY FUND AS A THI RD PARTY BEN EFICIA RY O R OTH F.RW ISE:'
C. Appllcationsshil ll be ilddrcsscd to the office of th e A lilbama Stilte a(lr locatt,.-'(I at P.O. Box 671, Montgomery, A labama 36101 ;lOd shall forthwith be transmit· ted by such office to the Chair· miln of the Committee. D. All applications shall be OIed no Inter than thrt.--e (3) ~ars after the claimant knew or should have kn(MIn oIlhe reimburs.1ble loss as denned. E. The Chdirf'lldn shall cause a COllY of the application to be served upon the lawyer or his
270
personal representative, In the cycnt the attorney is deceased,
by certified mai l, reMn receipt requested. IV. MEMBERS A. The Committee shall consist of seven (7) members of the A labama State Bal. The Chairman of the Committee shall be the President-elect of the Alabama State 8ar. The remaining six (61 members uf the Committee shall be appointed I1t' the Presl· dent of the Alabama State Bar for initial t.:!rm. a5 (ollows: tWO lawyers for two years; two lawyers for three years; and I'M> lawyer:;; for four years. The Chairman shall vote only In the Lovent of a tie. Subsequent appolmnlents by the Presiden t of the Alabilma Stille Bilr shall be for terms of three (3) 'y'l!ilfS. 8. No appointee who h;'Js served two (2) full terms c)f th(ce (3) ye<lrs shall be eligible for reappoin tment to tnc CommlMe un'il th~ (3) years after the termInation of the most recent term. C. vacancies shall be filled by appointment of the President of the Alabama Slate Har for the unexpired ferm. D. The Commillce Sholl! select a Secretary. E. The Chairman oind the members of tile Committee shall ~rve w ithout compenSJlion bUI shall be entitled to reimbursement of all their expenses ~asonably Incurred in the l:lerfonnancc of their duties. V. MEETING OF THE COMM ITTEE A. The Commit tee shall meet from timc to time upon cal! of th e Chilirmiln pfOYidcd that the Chairman shall cal! a meetlnl:! al ,my reasonable l ime at th e request of at least th rt.>e (3) memo bef'i of the Commiul,.'C. B. The Chairman shill! give the members re<lsonable notice of the time and place of each meeting. C. A quorum at any meeting of the Committee shall be a majority of Ihe full Comnlitlee. No action shall be taken by the Committee In the absence of a quorum.
D. Written reports or minutes of each meeting shall be prepared and l>crmilllCntly maintained.
VI. DUTIES AND RESPONSIHllITIES OF THE COMMlnEE The Commillt,.-'(! shall havtl the follO'NIng dulies alld responsibilities: A. To recel~, evaluate, determine and PJY clllims; B. To promulgate ru les of procedure not inconsistent with these Rul~;
C. To p/'O'lide a (ull repOlt at least annually to lhe bar associa tion and make o ther reports and I)ubllclze its activities as the Committee may deem advisable; D. To employ Md compens., te cons ultants. agenu, legal counsel and other persons as Ileces-
sary: E. To p rosecute claims for res l i t ~I' lion to wh ich the Fund 15 entitled: lind F. To take what~ r action i$ necessary to carry out the provisions of these rules.
VII. PROCESSING APP LICATIONS A. Preliminary Consldelatlon (1) When('"Ver the Committee (eceiYeS an application, it may, in i ts absolute discretion, af· ter lfl\/Cstig.1tion, require f?X. haustlon of some or all civil remedi(.'S before procesSing or adjudicating Ihl! appllca. tlon o r paying claims. (2llf the accused h.IW~r shall be a member in good st<lnd ing of the Stille Bar of Alabama, the applicant's cooperation in gri(.'Vance proct,.>edings by the Bar ,lgllhlSt such law ~r sha ll be a prerequisite to the granting of rollcf to such applican t from the Fund. The Commil1ee m<lY fCquire thil t an applicant prose<:ut(l or (;0operate in appropria te civil proceedings against the a(;cu:.ed lawyer as a prercqul. slle to the granling of relief to such applicant fro m the Fund. B. The Committee willl-aoid such mcctings and conduct such In· vestigations or rwiew as seem neccssary or dcsirablc in ordel
September 1987
to determine whether Ihe claim
Is for a reimbursable loss, and 10 golde the Committee in determining the exlent, j( any, 10 which Ihe claim $11[111 be reimbursecl. (If :he Commit1ee determines that thl! cla im is clearly not fo r a reimborsable loss, 1'10 further investigation need be conduCled and such determination shall constilUle a rejection of the application.) If the Com路 mittee determines thlll It is necessary to hear the claimant and Ihe attorney or \0 rccei ve other evidence on behalf of the claimanl, then and In that CYent the Committee shall requ est the appearance of such individuals and the receipt of such addi tiooal evldence .b may be rt.'<luired. In all cases, the l aw~r ChiHHI.'<i shall be ghen an oppo rtun ity 10 be heard I:tt' the Commiuce If he so requeslS. C. The Committee, In ils sole d isc retion , sllall determine Ihe Olmo unl of loss, if any, wh leh any client shall be reimbu rsed from the Fund. In making such determinatio n, lhe Committee shalt con sider, inter aUa, the fo llOWing:
such
be tran smitted by certified mall to illl p.lrties in interest.
a loss
(I) No reimbursement shall
be
made to any client unless said reimbursement is i1ppr<M!d by a majori ty \I01e o( the Commlnce al a duly held meeling at w h ich .1 quorum is present D. In determining whether or not af'y payment w ill be made on a claim, the Committee may consider:
VIII, The Alabama Sta te 8ar Is authorized to a~S拢!Ss e(lch lilWyCr licensed to pmctlce In Ihe slate an ilnnual fee of $25, The $25 fee may be asS(.ossed for as many as four years, I.e. , for a m;lxi路 mum of $100 per lawyer. Thi s fee shall be used to fund the Client Security Fund, I X. LIMITATION ON PAYMENT A. All paymen ts from Ihe Fund shall be .1 matter of grace and not of rlsht Md shall be in the sole discretion of the Committee. No client or mel'lbcr of the public shall ~ any right in the Fund aS;I third-party bencf1 d ary or olherwi ~. B. The ma/llmum amount which
(a) The condition of the Fund. (b) The nature and size of the claim presented. (c) Such other faCtors as th e Committee may deem lust and proper.
E, Notice of the aclion t"ken by Ih~ Co mmlllec o n any cla im shall
(a) The neg,lgence, j( any, of the client whi c h contributed 10
the loss. (b) The compar.ltlV(! hardship of the clielll suffered by the loss. (( )The lot~1 amount of reim路 bursable losses in the previou s yea~ for whi ch total reo imbursemf,lnt has nOl been made and the total assets of the Fund. (dIThe tot al Amoun t of reimbursable losses of the clients of any one t3Wyer or association o f l;,tWyers. (e) The Commillee may, in its sole d lsoel lon, allow further reimbu rsement of a reimbu rsable loss allO'Wl'(! by it at {I pri o r time w ith rcslX'Ct to II loss which h.15 nOI been ful ly reimbursed ; provided such fu({her rembursement would not be inconsistent or in COilfli ct with any previous delermination with respecl 10
Tlte A/abanw Lmvyer
so 1'10 mlltlor I1l1n~ono
"tOI 10
IInl we r 10 UI '
'II
"
MISSISSIPPI VALLEY TITLE
271
anyone cl;llmcant mily ll..'Covcr from Ihe Fund arising from ;In inSlance or co urse of dishonest conduct is len Thousand Dol· lars ($10,000.00). C. The aggregate maximum amount which all dillmants may rec(M!r arising from an in· stance or cou rse o f dishonest conduct Is Twenty Thou s..lnd Dollars ($20.000.00). X. SU BROGATION A. If reimbursement 15 made, th c Fund shall be subrogatcd In the OImoun t of the reimbursement and the Committee m;ty bring such action as Is deemed advisable against the l"""YCr or the I!lWYCr's estille, Such action may be brought ci ther In the name of the clalm~nt , or In Ihe name o f the committee. Prior to I):tyment of the d,llm, the claimant shall be required to execute! a subrogati o n agreement. Upon commencement of an action by Ihe Committee, pursuant to its subrog.ltion rights, it sh,ll1 ,ld· vise tnc cl"im,l nt, who may then join in such action 10 recover losses In excess of the amount of the reimbursement from the Fund. B. Should the cLlimant bring an ac· tion for recovcry of unrelm· bursed losses directly "gainst the I~r, Of the I~r's (!stille, the claimant shall notify the Committee of such action. C. The claimant Is expected to cooperate in any effort the Com· mittee undertakes to achieve rcimbuf5ement for th e Fund. XI. CONFIDENTIi\lITY A. Application !>' proceedings, and reports Involving applications for reimbursement are conOden· tial until the Commi ttee authori7es reimbu rsemen t of the cl aimant, except .l~ provided below. B. If thc I~r whose alleglod con. duc t g~ rile to the claim ft.'quests that thc maner be made public, the requirement of con· fldenliality It w.lived. C. Section A shall not be construed 10 deny ilcce. s 10 relevant infor· miltion by professional discl-
272
pUne agencies o r o ther lawen· forcement authorities ilS the Comminee shall authorize, or the release of stltlstlcal Informa· tlon which does not disclose the identity of Ihe lawyer or the par· ties. D. Both the claimant and the law· yer shall be advised of the sta · Ius of the Comm ttee's consider· OIlion of the claim and shall be Informed of th e final determination. XII. AnORNEY'S FEES No allorney I'E'pre5e'nting a claimant shall be compensated from any sourte for his or her services. XIII. CONFLICT OF INTEREST A member of the Committee who has or hos had a lawyer<lIent relationship or financia l rela tionship with a claim· ant or lawyer who is the subject of a claim shall not p,lniclpate in the In. vestigation Of adjudication of a claim Invo lving the dalmant or lawyer. XIV. IMMUNITY The members of Ihe Committee and staff persons assisting those memoor5 are absolutely immune from civil liability for all acts in the course of their official dulies. XV. GENERAL PROVISIONS A . The Executive Director of the Alabama State Bar shall act as Ihe Treasurer of !he Committee and shall be an el( o(ficio member of Ihe Committee. B. The Committee !hall not consl· der granting reimbursement for loss or damage resulting from incompetence or ma lpractice, but o nly fOf loss sustained by reason of dishonest acts. C. The Client Security Fund Com· mittee shall not reimburse ;lny person, firm, or associa tion (such as a bonding company, fo r example) for any lou where such person, firm , or a55OClation has been compensated for assuming a risk of loss. XV I. SEVERAB ILITY Tht!'Se Rules are ~rable. If any fule or any part thereof 15 de· clared invalid or uncon stitutional, such declaration shall not affect the rules or portions thereof which remilin. •
COU RSE MATERIALS AVAILABLE $12.50
p(!r set
UpdillC '87: Recent Dcwlopments in Ihe law TopicsTort Reform '87: Its Development and Outcome; Ihe Rol e of the Bar William D. Scruggs, Ir. Fort Payne, Alabama The Prac t ica l Impact of Tori Reform ... . . . O n Defcnsc Pr3( tice Lawrence B. Clark Birmingham, Alabama ... On Plaintiff Practice
Ernest C. Hornsby Ta llassee, Alabama Et h ics: A Sum mary of Recent Disd plinary Ac tiQns, ChOlnge$ in the Rule s o f Condu c t Governi ng Attorneys Gary C. H ucka by ! luntsville, Alabama Till( Reform: Whilt Every PMctitioner Should Know L.B. Feld Birmingh;ml, Alabama Recent Decisions of the Alabama Supreme Court Civil Cases Stephen D. Heninger Birmingham, Alabama Criminal CUM D,w id B. Byrne, Jr. Montgomery, A labama Milrital 1..1W Update: Child Custody and VisitOition Robert F. Prlnce Tuscaloosa, Alabama Insuriloce Practice lk\Idopnents: Su~ rog.l tion, B",1F.llth, Co-cmployee Suits Plaintiff's Perspective M . Clay Alspaugh Blrmlnghllm, Alabama DtlfendilOt'$ Pcrsp(.'C\ive Bert S. Nettles Mobile, AIllhama Over 700 attorneys p..uticlp.1led in this recen l seminar, sponsored by the Young l.a<Nyers' Section, and most fated these materials as excellent. Here Is your opportunity 10 purchase the materials if you were mabie to at· tenel. Please send a check, made PiIV' able to the Alabama Sitli/! Bar, 10: Seminar i\labama Slate Bar P.O. BoJo: 611 Montgomery, AL 36 101 •
September 1987
ORDER WHEREAS, lhe Board of Bar Commissioners of the Alabama State Bar has recommended 10 thi s Court Ihat DR 9-102 of the Code of Professional Responsibility of the A l iI~mil SI<lIe Bar be amended, and EC 9-7 be added to the Code 01 Professional RCiponslblllry of the Ala· bama State Bar; and WHEREAS, the Court has considered thc recommended amendment and the recommended addition and deems It approprtate to adopt the amendment and thc addition; Now, TI-IEREFORE, IT IS HEREBY ORDERED Ihal DR 9-102 of the Code of Professional RCJponslblllry of the AliIbama Slale Bar be, and II hereby is, amended, and EC 9-7 be, and il hereby Is, added to the Code of ProrossionaJ Rcspons,"bility oi Ihe Alabama Slale Bar, \0 read In accord,lnce wilh those appendices A arId B, respectively, which appendices are attached to this order <lnd made a l>art thereof, IT IS FURTHER ORDERED that these amendments shall become effective Oclober 1, 1987, SQ th<ll those'~ or I""" firms that do nol advise thc Exccutlve Director purSuant 10 DR 9-102(D)(3) by Septcmber I, 1988, of an election not to maintain a pooled Interest be<lring In_ sured depositoIY trust account mus! maintain such an account for the fi$<;al year beginning October 1, 1988. IT IS FURTHER ORDERED Ihat any intcrested persons sh<lll have unlit September 1, 1987, t6 submi t to the Clerk of the Supreme Court, M. Box 157, Montgomery, Alabama 36101, wrinen objections Of commen ts concerning this amendment and additioo,
APPEN DIX A CODE OF PROFESSIONA L RE· SPONSIBILlTV O F TH E ALABAMA STATE BAR OR 9-102 Preserving Identity of Funds and Property of
it
Client
Til{' A/l1bama Lawyer
(AI All funds of clients paid to a lawyer or law firm, other than advances for costs and expenses, shall be deposited in one or more Identifiable Insured depository trust ilccounts maintained In thc slate in which the law office Is situated. For purposes of this rule, "insured deposi tory tru st accounts" shall mean gOYernment insured accounts at iI regulated financial inStitution on which withdrawals or transfers c.:tn be made on demand, subioo only to such notice period which the institution Is require(! to reserve by I""" or regulation. No funds belonging to Ihe lawyer or law firm Shilll be deposited therein except as follows: (I) Funds reasonably wmeit'nt to pay scNlce chaiSes l11ay be deposited therein. (1) Funds belonsins In part to a cllem lind In part ,,~n l ly or potentially to the lawyer or 13W firm must be d~posiled therein, bUI the portlgn belonging to the lawyer or t;rw firm may be wlthdr<lWO wht.'fl dlK' unless the right of the LlW)'er or 13W firm to rt(t.~~ it i5di~too I'f the client, In which t:\(!nt the di~ted portion shall no! be withdrawn until the dtspute Is finally rESQlved. (B) A lawycr shall: {I} Prompcly nOtify 11 dlent of the r<!Celptl of hi' funds, securities, or other propenle$. (1) tdentify and label securities and propenics d a c1i1!fl1promptly upon receipt and ptace them In iI!oiIlt! deposit box or OIher pll1Ce d ~ft-L:t.'ep Ins a~ !lOOn il5 pr.Ictlc~ble. III Mlllnlain compl~to records of all fund s, securities, and Other properties ol a client comIng Into the posses~ion allhe law)t!r ~nd ~r appropriate accounu to his cHent regarding them. (4) NO! miSilpproprl~te tke funds oIhis c11('fl1, either l1r failing promptly to pay over mooey collected by him for his client or bv Ol>pfoprlating to his own usc funds entrusted to hIs keeping. 15) Not make dl sbU~n"lCntJ a cli· Cnt's funds from flUSt M:count§ conl;tinlngtke funds 01 more Ihan 000
or
client unless tht! clle~t'5 funds are collected funds. Pn:::wided, ~r, that If a 1~ It;as '" tt,UOflilble and prudent belief that a deposit of an instrument payable at Of throUlih a b..1nk rcprtscntlnllthe cltent'S funds will 00 collected prolllpliy, then the lawyer may. at his own risk, disburse uncollected cli~nt's flnds. tf colleclion does nOl OCCUf, lh~n the lawyer shall, a~ soon M pr.lctlcal, but in no ~t more than fi~ (S) y,ork. Inll dOl)') after nOtice of noncolleclion, replace 5uch funds to the truSt account. (C) Funds (ecelvc'\'.l dlrcctly or indirectly under an approved credit card plan shall be subjecl to (lit of the requirements of thi s di scipli nary ru le. (0) (I) hcep! as may be (luthorll~ by DR 9·102(D){2) and (O)!l), Inlerest earned on insured dcposltoty trUSI accountSIn which th~ funds of cll· en ts IIrc deposited (leiS any d(..duc· tlon for scNice chargu, fees Of the depositO!)' institution, .rl(! laxes col_ lected with rt'SIJoI'Ct 10 lhe deposited funds) shall belOOIl to the cllenu whow funds art' dcpollted and the lawyer or law firm shall h_ no rlSht or claIm to such Intcrt.~t. (11 Unless an election not to do so Is submlllt.<d In accordance with the procedure set forth In DR 9·102 (Olll), a lawyer or I.rw flrm with which he is associated who fl'O'l~ client funds sh<IlI maIntain a pooled intert>5t-bearlngln$UrOO depository IIust itCcount for deposit of client funds that ilrt! nomln~1 In amount or expected to be held for a shon period. Such an account shall comply with the folla,o,olns prO\li~ions: Iu) The a~"(Ou nt shall only Include clients' fVllds whI ch arc nominal In IIfl"IOlflt or are expcctC!d to be held for a short l)eriod of lime. (b) No In te~t from such an account shall be made available to a I~r or law firm. (c) Lawyers or 1;tW firms depositing client fund~ In tin Interestbeatins lnsurt.'<i depo5ltory \lUSt account under this paragrilph ID)(l} shall direct the deposit instltullon:
273
til To remit Intcrest, nct any
to the public; To helpmaintilin PUblic law IIbr'l'lrles; (vi) To nelp malntJin a cll· ent security (und; (vii) To help maintain an inquiry tribunal; and (vlll) For such o tner pr~ grams lo r tne benefit of the public as are
service chilrgt." or k~s, as compJled In accordance wllh the Instltlltlon's sta n.. d.lrd occountinll priICIltt, at Il'aJt quarterly, to the AID' I),lm,..law Foundlltlon j ilOO (II) To tran~it with each remit· lanct:' to me Alabolm.1 Law Foundation a statement $h<1Nln8 the nilme 01 the lawyer or law firm on w~ accoont the remit· UillCel$ sent aOO the rate 01 Interest /lppll«I, with 11 copy ol such stdtement to be tr~n~mi"ed to the IlJWY(lr or the law firm .
(d) AU interest tlansml"oo to the AI· i100ma l.ilw Found,uion shall be distributed by that entity for the (ollOYJing purposes:
To Ilmvide ICHal aid to the poor; (II) To pmvlcle law stu· dent loans; (il l) To provide for the ad· ministration of justice: (Iv) To pmvide I........ related educational programs (I)
I~
(v)
specifica lly approved by the Supreme Court of the St.ale of Ala· bama from lime to time. (l)
Lawyers or law firm, that do 1I0t wish 10 nulnlHln accounts descr j\)(!(/ In DR 9-102(0)(2) for ilny fi r.<:ai year mUSt SO ad~lse the £~ecvtlve Olrt.'c tQr of the Alabama Stllte Bar In writing on or before ~plembcr 1 of thll jln.'Cedinll fiscal \'I!ar, Law nrn\~ that do fIOt so ad"lse the Executlye Director within any such period shall be n.'quln:.od durinll the ensulnll )'Cilr to maintain such accounts In accordance with DR <).1 02(0 ) (2 ),
APPEND IX B CODE OF PROFESSIONAL RE· SPONSI BILITY Of THE ALABAMA
STATE BAR fC 9-7 As to insurod depository trust accounlS, i11awyer should exercise good fa ith Judgment In determining Initially whether funds o ( a client are of such nominal amount or arc expected to be held I:J,o the lawyer for such a short period of time thilt the fund s should not be plat ed in an interest bearing Insurod depos tory truSt account (or the benefit of the client. The lawyer should also consider such o ther (,lctOrs as:
The cost 01 cSIllbllshlnglind milin. Hllnlnll the account, servlCfl charges, accountlnK fee~, ~nd til~ reporling procedures; (b ) The natuill of the Iran~ttl on(s) In\101 ......'<1; and (e) Thu IIkolihood 01 delay In Ihll 1U1t.... "Jilt l)roceedln8s, (a)
A I~r should n.....lew at reasonable Inter. \IiIls whether changed cl rcUmS~lnCes requ ire fUrlhm ilCtlon respecting the oc,lOSit of cl ient fu nds. •
':t.
When wltl\e1SeS, defendanu, beneflctarles, In,ured" policy holders, debtors, hi..." moved and left no forwudlncaddren, we tr.Kk them down on a world·wlde scale. And If wedon't find ~ur person, you don't ~y, Global's basic chlrge lOr a trxe whefl the lut known addreu Is three years old or teu It $180,00.
• Criminal • DornnUc:
• Altorn,p • !Jc:OrI hrvlc:t
• eMt
•
Su~II.nc,
Specl.llzlng Ir. Divorce a. Child Cu. lody 1 _ IlWfltIgMlonl
Call for more Information or to start. tnce today. 1·800· tS63-61441b11 fftIe Al uka a. H awaII CaUI·80Q..04 ... l -6' ...... 9 "m,-7:)O p,m, EST 6~m,- 4:lO p, m PST
-- -
IHh"WYUI C:O'OHUIIVI.I'II"""WO
0".""-p -~ ..... '74
.....
co.
SeJllembcr 1987
Alabama Administrative Procedure Act: The Venue Issue Resolved By Helen CurrIe FoslC!r In 1981, the Alabama ~gj slilture enad·
cd rhe Alabama Adminl slrativc Procedure Act ('l'\APA'1, Ala. Code § 41 -2 2-1 ef sC</. (1975). As could be expected, lhe Orst decisions involving the AAPA centmlod on conflicts bcl'oYCen the MPA and exlsling Statutes go'o'effling stale agencies. particularly as they applied to procedures for appeals from agency dcci sion~ In II December 17, 1986, decision, Ihe Alabama COUft of Civil Appeals (lhc "appeals court'? cleared up serious caMu-
sian OYer applicable procedures bcr.Yeen 100 MI¥. and (p;isting St.ltutes 80Yerning appeals (rom s:ate ilgencies, Ex parfe
Sidle Health PI.Jnning & Development A8t'ncy, 500 So. 2d 1149 (Ala. e i v. App. 1966), denyin8 petition for mandamus in AMI 8rookv.ood Medical CCnler v. SllIle Health Plann;ns & Dcvc/opmcm Agency (hereafter cale(! "Brookwood") In BtOOk~ the State t-teahh Plan· nlnR Agency (''SHPA'')I unsuo::essfuUy at· tempted 10 dodse the AAPA venue provision w hich subjected It to suit In coun· tics o ther than Montgomery County, where It malnt.. ir'lS 115 headquarters. The llPl>eals co urt resolVl'CIthc Issue of prol)Cr \/Cnue for aggrieved persons appeal. Ir'lg agency actions by establishing the primacy of th e AAPA over prior Ngeneral ruk'S" of venue, and also I)riorlty ..s to venue between the AAPA and spe(ific.: agency StAtUles. etlrller appeals court decisions construing the AAPA had left unc.:ertaln not only the que~tion of proper venue, but C\'Cn whether the AAPA gave any new appeal rights to an ag· gricw.d person who had participated in agento)' proct"edir'lgs buT who waS nOt en· titled to tlPI~a[ under a spcd Oc agency statute. The background of thl! case wa s thi s: After the Cert ifICate of Nc<!d Review
Board of SHPA ~ted to grant the Lloyd Nol and Foundation a certlfic.ltc of m..'1..>d ("CON") to build a nLW hospi tal In the South JcrfCrS(ln.. North Shelby County area, five arc.. hospitals (the " Hospi tal s") filed five appeals. Two of the hospitals filed In the circ.:vit court of Jefferson County, Bessemer division; thrC<! med in M ontgomery COVIlIY. All appell .. nls then were made piHties to the OPI>cal flied by AMI Brookwood Medical Center ("Brookwood ") in Bessemer, by motion of Brookwood, and were ordered not to pursue other appeals. None of the hospitals objected to the Bessemer venve. The attOrney for SH PA med a mOlion il5klng the Bessemer court to tran sfer the Bessemer apl>cal to Mon tgomery Coun· ty on grounds of Impropt!r venue. At the same time the SHPA attorney also filed a petition for writ of mandamus In the appeals court to mO'oe the case to MOrlt.. gorncry County (which the appeals coun rc1'used to decide unlll after the Bessemer circuit Judgc rulLod on the tran sfer motlonl. After Ihe Bessemer circuit Judge denied the transfer motion, the appcOlls coun denied SHfWs mandamus pelition. In holding thaI the circuit judge indeed
had discretion to deny SI~PXs mOtiOn 10 tran~fcr fo r improper venue, the al)pt!als court reJeCl(">d SH PXs alternative arguments that the SHPA stalute, Ala. Cotk §22·21-260 C!r seq. (197$), not the AAPA, con trolled venue, or that lhe "gcoeral rule of venue" for actions against state agencies required tha t appeals be filed in Montgomery Coun ty, the counly of 51IPXs headquilrlers, regardless of what the MilA prcrvides. Perhaps llIost lmpor.. tantly, the cOurt rerectcd SH iWs argu· ments that the AAPA w~s Intended to provide only " min imal procedure:" as opposed to at least Ihe "minimum procedure" mentioned In the actl t~lf, and that tnc AAPA venve provl5ion, by requir. Ing SHPA to defend its act ons In a co un.. ty o ther than Montgomery CounlY, c m· ated a "burden" on the Hgcncy which 'N()uld Justify the court's Ignoring the AAPA venue. The specific agency statule 8~rni n g Judidal review of SHM action, Itla. Code 122.. 21 .. 275(14) (1975), Pf'O'Ildes on ly fOr oppeals from ~any ad~rsc decision," Orst throu gh appe:.. 1 via a fllir hearing. then by appeal to the circuit court: "The dc:cision allhe apPeals IIgency mall be considered Inc Clflal decision dlhe Siale agency; proyldtd, thililhe
H elen Currie Foswr r~e;ved her ufl(/er. gf.ldu.lIC degree from Wel/esley Col/ege, master's from the Univcrslty of Tel/as afld law degleE', magna cum laude, from the Ufliversily of MIchigan. She served as an adjuncl professor of law with the Ufll~rsily of Alabama 's Sc.:hool of Law in 1985 alld cur rently is afl assacillle with lhe Birmlngh/Jm firm of Cabaniss, JohflSlon, QrdnCf, Dumas & O'Neal.
al'pllel1l11 may appeal the decision to lhe circuit court 01 the county in whkh the ilwlic!ilnl re$ldes or of the county
In whkh!he appilcafllis situatoo," (emph;uls itdcIed l
Prior O ecision s
The SHI¥\ statute conli'llns no proYlslon fur appeall7( noo-aPPUC.1nIS, such as the nosplt<lls. The M~ re¥lew ptOYlsion, on
the other hand. ~tend5 review rights to ilny "aggrieved" person. Section 41 ·22· 10(01) provides: (a) M A J}e1'SOO who has ~hlltl5lcd all;l(l· mlnl$lr~IIYe reml'dlf'1i ;JY,llli1ble With in the agency (04htorthiln rnhcaring) ilnd who Is ilggr!l;~d by a final de<:lslon In II COfl1esled Cilse Is cnrltlt'<l to ludlchll
fl!'o'lew under !hls chapter. " pmUml-
nillY. procedural, or IntcrJl1(!diaIC agcn-
cy actiOn Or rullnB Is Immedlmely reVICWolbl1l. 1/ review of the f1n~1 agency dL'Cision would not provide
;In
adc-
qUJ)IC remcdy,~
Whill! the "APA does not define "aggrieved;' II docs define "person" broad· Iy In §41·22·3, aod also provides that any " intcreSled person" may inlervene in iI COnleslOO CiiSC under §41-22-14. Nothing in Inc AAPA suggests thai the legislalure intended to IImlllhe rlghllo appeal more rigorously than the right 10 Intervene. Brookwood clar nes SC'YCral key issues. First, the appeals roun held the hospitals 'Here entitled to tlleir choice of the venues provided b¥ the AAPA, bccilUse the SHPA statute did not expressly IJr()Ylde Ih(lt (I nOn-31)lllicaot coul d appeal OIl all, and hence 115 venue proYlslon was InappliCClble. Second, Brookwood makes it clear that Ihe prior ~general ru le of venue," enunciated bv cases holdinglhUl, absent specific statutes, st(l\e agencies were subject to suI! In the counties of their headquarters. hIlS been SUllCrset!t.'<l by the 1\:181 enactm ent of the AAPA. Third, this decision makes 'I cleM that the "mlnlmun' procedure" available under Ihe AAPA nCM' Is available to ap1)Clltlnts who might hiMl lacked stimding under a specific agency statute (i.e. nonapplicants); AAPA 5t,lnding (I.e. "aggrieved person") nCM' controls. To Sol'(! how Brookwood clarifies stMdIng Mel venue under the AAPA requires a look al recent MPA decisions b¥ the appeills court_J Oddly, SHPA is the asen-
27.
cy sp.1Wning the largest number of rePOrted decisions o.)Ostruing the AAPA to dilte_ I, The Mobile Infirm~ ''Y decisiOn The appealS court had left doubts as IQ the extent o( Ihe av.1lllabillty of MPA venue IJtI hoiding In July 1985 that i1n a~ plicant hospilal could appeal a CON decision under only the SHPA statute, not Ihe AAPA, ilnd hence was Iimi1l..>d to the \lCnue pcrmined by the SHPA statute_
Mobile In/;rmary Ass'n. v. Emfinser, 474
So. 2d 73 1 (Ala. eiv. App. 1985) Mobile Infirmary had aPl>caled SHfWs decision to grant a CON to Sprin ghill Memorl ill Hospital to acquire a IIlhmrlptcr. Mobi le Infirmary had applied fo r iI CON for the Slime C(lulpment, bUI SH PA al)l)nrently did nol act on the application. M obile Inflrmflry filed Its appcalln Montgomery County Clrcuil Court, which dismissed for lack of jurisdiction, The appeals coun affirmed, slr\Ce, underthe SHI'A statute, as an applicant the plaintiff could file only in Ihe county of its princlp.ll place of busi ness, Mobile County_In denying the plaintiffs claim Ihat under §41-2 2-IO(b) (Ii the MPA, the coun focuS«! on the 1ntroduclOry language of §41-22.IO(b), which provides: (bI Mbapf in mdlreN kx which JudlCl.Jl ~I(..w ;$ OIMrwlse ptfJIIldcd for by /,lw, all pf()("eed l ng~ for ffl\'lew shall be In~tJtllIed by filing 01 nalice 01 appeal or review and, where r(!(juired by SlllIule, a C05I bond wllh the a~ncy. A petillon shall be filed In the circuit court of thl! county in which Ih~ aseney mall'llalns Its headqumwr'S, Or Lnlcss OthefWl~ mec;l fl cJlly pr(IYlded by stalute, where a pilrly (olher Ihan ~n in u~ rvcnorl re~Idcs or il a party tother !hall un Intcr. ¥enorl, Is II corporation ... then In Ihe county of (I tsl registered office or principal pl~ce of businms ... :' 474 So. 2d al 732 (emphasis the coun'sl According 10 Ihe ilPpeills court, th e phrase " Except in matters (or which ju(!id ill review isothcfWise provided for by law" meant that, since the SHPA statute ~ provide (Or jJdicial review for applicants, the SHPA statUle controlled over the MPA. In den)'ing that the more liberal filing provisions of the MPA
g()l.l(!rncd, the coun In Mobile Infirmary allowed the single Introductory phrilsc of §41-22-2()(b) 10 con tl'Ol ()I.I(!r other MPA language, specifically U41-22-2 and 41-22-25. For eKample, the court quoted §4 1-2 2-25(al In part: (al "This chapl!'!r ~hall be conStrued bfOO\dly to effectu.lttl Its pu'po5CS. Ell. cept as eIIpressly p!Oo'lded otherwise by this chaptCl' Of by aflOlher SliltUUI referrinsto this ch.ll>lCr by n,I!tIt, the rightS created :lIId lhe requlrcment51mposed by Ihls chal)ler shall be In ,KIdition to those creattod' or ImPQ5ed by (,'Ytry other Slilluto in existence Ofl the (I.ne of Ihe pMsage 0( 11'115 chajller or lhereafter enacted. If any olher sMlUte In~ Iswnce on the daw of Ihe p;lu 1I8e of this ch~pwr 01 Ihcre,.ft Ct enacte(l (11 ml illsh!!s any rlghl (:on(errt!d upon a person by Ihls chapter or tllminl ~hcs any requirement Imposed upon an agency by this chapter, this chapter shall rake precedence unless the other stalute expressly provides that It shall take pr edence ewer all or$On~ $pecUled portion d this named chapter." At 733 (emphasis tho court's) The appeals court relied on the emphasized language as re(erTing back 10 the Introductory clause or §41-22-20(b), i1nd refused to be m<M!d by the otherwise bro..ld Iilnguage o( §41-22-2S(a), stating: " Bul for the above emphasized language In 541-22-25(al. one could condvdo that the mo~ Ii~al flling reQuhenlenlS fol Judlclll I'C'o'lew under Ihe MIlA may be foliowOO In addition to lhose 01 §22-21·275(141. This Introductory clause, ~r, speclfica.lIy excepts Ihcxe mailers where lhe AAPA Itself j.!ales an exception to its requlr(!n1Cnts, Such Is the case wilh 541-22-10Ibl. This smtllle lpeclflcally exempt$ from lISJudicial A!Vlew IIIIn8 provisions those mailers 101 whlcll )udlctallt..... t(,'W I~ provided by other lllW."
Id. The OlI>Peals COUtl'S pOSiti on In Mobile Infirmary Is hard to JUStify 81\ICn other language In the AAI'A . The coun mentioned but (,liled 10 discuss §41-22-2, in whi ch the legi$lature Slated thai the! purPOSt.'$ o( the AAI¥. are to Increase agency accountability and Simplify the process of judicial review and ncrease, not decrease, Its ease and ava lability. The
September
1987
court ilPPiHently did not even consi der another AAPA provision, §41-22-26; that provision repeals prior inconsistent statutes and agency ruics and arguably operates to repeal any provisions of the S11A\ Judicial review procedures. as wen as I)rovisions in other agency Statutes, which conmet with the AAPA: "It Is Ihli ClIpress Inlent of Ihe IcglslalUre 10 rtlptace 1I111lrovisions In sta· Mes o( this "ate rclatlnB 10 rulemakInl!, illlency orders, udmlnlwatlvc adJudlc.Won, or ludic/a I review Ihcroof
thaI are InconslMent with the ~i~ oI lhls chapteL Therefore, all laws or !><Irb at 1_ that conAlo with this Ch;l,>llil are heIciJy rcpeilled on October I, t982 ... (emphllSls addedl H
M or(l()lJCr, ,1llother prOVision, §4 1,22·27, suggesTs That excepT for adj udicative proceedings which were ongoing on the ef· fectlve date of The MA\, future adjudi. caTive pmceedlr"lgs must foll(MI AAPA pro.-isions. Section 41·22·27 pKWides that any con tcsted cases which were being conducted prior to October I, 1983, undar Ihe prQVi sions of specific agency statu tes may con tinue under those provisions; hOWC\('I, contested cases which had nOl reached the hearing stag(: by 0<;. tober I, 1983, arc to be conduCted in ac· cord ance with AAPA provisions, if all consent. The impliciltion is that contested caSl!S beginning lifter October 1, 1982, wi ll be g!)ICrn ed by AAPA procedures. Filially, acwrd lng 10 the commen· t:lry to §4 1-22-27, thai section is intended to aUQIN "Ihe procedural protections Intended to be provided by this act [toJ be fully taken advantag(: of <lt the earliesT opportunity:" Arguably such "procedural protections" include ;tV,l llabl lity of AAPA venue, con trary 10 thc al>l>cals court's interpretllliorl. The appeals court's reliance in Mobile Infirmmy on the soillary introductory phrase of §41·22,20(b) thus appeilred to con tradict the express Intent of the legIslature In §41-22·2 to simplify and increase avJilability of rcviW/j It made nugatory the Icgisliltr,rre's express incent In §41·22·26 to repeal inconsistent provl. sions in other 3gtftcy sta tutes, specifical. Iy including pror.<lslons fOr Judicial reo-
The Alabama L<"Iwyt'r
viW/. Mor~r, thc court seemed unjustlfitod in placing such overwhelming em· phasls on the single Introductory phrase In §4 1-22-201bJ, since It cCrl,llnly could be argued that the phrase applies only to the firM sentence, coocerning the ini· tial filing of nOl lce of appeal with the aKency itself, and was not intended to af. fact the venue pfOVl~lons SCt Out in succeedi ng sentences of subsection (b): "Except In mailers (or which ludiclal A......11!W Is otherwise Pfovldcd by I;JW, all Il.,ocft.'djns~ for rwlew shall be in· stltuted by flUns 01 tIO\lcc 01 appeal or "''View and, where requIred by St"IU~, a cost bond, with the agency." NOnetheless, the upshot of MobUe Infirmary wa s that an aggrieved CON appll. C'IIlI W,l $ limiTed 10 seeking Judicial review only in its county of residence, as provided In The SHPA statute and, therefore, where an agency statute provided for appeal in a particular Jurisdiction, no other Jurisdiction wn available. II . The Druid Ci'y dt'Cision On ly three months after Issuing Its oilinion in Mobile Infirm<1ry. the appeals court once again afl'inned a Montgomery County Cll"QJit Court's dismlsSoll 01 an appeal of a SHPA decision. Druid City Nealth Care v. Ala. Stile Heallh Planning & DcvcIOpfTll;)nt A8ency, 482 So. 2d (Ala. Clv. AI>P. 1985), cert. denlcd, No, 85-255 (Ala. Jan. 31, 1986) As In Mobile Infirmary, th e appellant In Druid City WJ~ a competitor of the hO!pital which had received II CON, but this time was not an applicant. The aPl>eals court cUed Its docision in Mobile Infirmary in upholding dismlsstll of the appeal, filed not in the county or th e appellant's principal place of busi· ness, lUsca loosa County, but In Mont· gomery County: .,his «Inclusion Is In tine with the ~11·recosn;ltd prindpic notlld by this coon In Mobile Inn/m,ry that 'where a Sl)l!Clal sTatulory pfOVlslon Is provid· ed as 1m exclusi\.{! method 01 review fo,n t),~nICuln, tyllli Cll!i(', 'no other ~' alU· lOry review Is nvallablc.N> 482 So, 2d at 1223 The court furth~r stated, in elictum, that since the plaintIff wai not an applicant,
and the SHPA Sta tute gave only appli. cants the righ t to judicial review, the plaintiff lacked even standing to appeal: "v.tl not~, h&Never, that it appears to this coun That, In Ylcw dour r.ltlonalc t!lI~sed in Ex piirfe Stllt HCJ/th PI,m· nlns and Ot.'vd~nl Agency. 443 So.2d t239 (Ala. Clv. App. t983), thc circuIt court 'nQUld appear to be cor· rect In concludlns tha t Druid City lacked standlng.~ lei. al 1224 That dictum, had it not been erased by the recent Brookwood occlsion, effec· tively would h~ neg<ltcd the entire AAPA, and defeated the purpose of the AAA\, to Increase ease and availability of ludiclal review. First, Ullder this rationall!, if iln agency statute grants any Judicial review and designates \/Cnuc, the MPA \/Cnue provision does not apply, but If the agenCy pr<:Nision limits avalla· bUlty of review and excludes the appel. lant, the MPA stili docs not apply! The hal)iess plaintiff in Druid City could fi le only in Tuscaloosa County, under The SI-IPA statu\(!, <lnd possibly not even there, given lack of standing under Druid
GIY· As precedenT for its dictum in Druid City the 31lpcals court cited not only Mobile Infirmary but also a prMAPA case, C)( parte Stlle Nea/th Planning and Development !\seney, supra . That case had held that non.apl>llcanl hospitals lacked stand inK to protest a CON decl·
G EN ERAL CO UN SEL The Alabama State Ba. now is ac· cept ing opplica!ions by leller wi th resume from qualified lowycrs (or the posll ion of General Counsel. Thew should be add res~ to Chajrmoln. Sclact lon Committee, P.O. Box 671, M ontgomery. Alabama J6101. This position requires an experienced lawyer with a strong jlfofessionai background, Salary commensurate with experience and m,l turlty. The Alabama Stl.lte Bar is an t'Qual opportunity employer.
277
sion involving another hospital, a holding which should have been legislatively cr..<'rruled by the enactment of the MPA. The appeals coon also relied 00 a case which presented it more serious challenge to the MPA, Moore v. St.llc lMparlmCnI of ReoNnuc, 447 So. ld 744 (Ala. elv. App. 198)}, (Crt, dcnlcd, 447 So. 2d 747 (Ala. 1964). Moo(C, which Involved appeal of a final assessment of personal Income tax, was Inlli,lIed before the effective date of Ihe MPA. The appeals court correctl y ruled Ih:.t AAPA nt· ing provisions were InilPl>ltcilble. The court went on, hONl.~r, to st:.te in dicfum Ihilt the special SI,'tutory procedure provided for aPl:>cals of final ta )( asses~ mellls was ~cl u sIYC, Imd 1hm the plaintiffs could not "drcUnM!'Il'" that provision bv invokln8 .he AAPA. The court cited that dictum in Mobile Infirmary: ''This In'ClprCla,lon 0( §41·22·20(bi Is in itCcord WI th the longstanding rule that wh~ a spocl.ll statulory provision Is pl'OYlded as an C!XCluSiW! method of review fOI a Poll'lleular type Cllse, no OIlll'r statutory A!\'lew Is ;w~ilable: P..r· ron~ v. SI.1W 8oo/lJoi Rt'/lIWillion, 416 So. 2d 10)1, 1013 (Ala. e lv. AI>I).I, CM . denied, IAla. 19a2). Moore v. St,ne Dcp;lrl~n1 of Rt-venue, 447 So. 2d 744, 746 tAla. c.v. Aj)J). 1981). et"fl. defiled, 477 So. 2d 7471A1". t9841. The aOOYe Slated ,ule was noled by Ihls court In Moore In dicQ spt.'Clfically addressed 10 Ihe qutStlon 01 w~t het tke Uber.\! Judlc!;tl te'Ylew pro.-lSIOOS 0( Ihe MPA could be used 10 clrcuJll\lent the requirements 0( thc spt.'Cific slatl/Ie gQYetnll'lg n,lpeah of fina! lax asses~ ments of the Slate Depaltmen t of Revenue. ~ concllll/Lod that It could not be SO used." Mobile infimlilry, al 732-733 The fl aw In Ihe Moore dlClllrn on exeluslv!!y of appeal procedures under an agency 51:.IUle Is clear If onc looks at §41.22.27(f) of Ihe M ~, which expressly names one a8ency, the Alab..lma Dep""t. men! of Environmentill Management, as exempt (rom certain MPA provisions. but fails 10 I.!l«1mpt SHPA or any other agency. The implication 15 Ih;tl agenci(.'S not named in the tl«!mption art! ~r(!d. Funher, the IcglsliUUrt>'S 1986 amend· ment 01 §41·22-20, the appeal pl'OYision
278
of the AAPA, specific,1Uy affecling the scope 01 review of cen~l n laX appeals (Including Ihe type of appeal flied in Moore) strongly sugg~tS lhill lhe legislatu re does intend for MPA procedures to gO\lern tal( cases. Tt-e Moore dlClum, in combination with Druid Ci!ys holding on ~nue and dictum OIl :>I<mding, \\QuId have essentially defeated the purpose of the AAPA, and \\Quid h~ conceivably limited Its field of operOllion to situations where an cl(lsting agency slatute did not pr'{Wide for review at all. left Intact, Druid City would have left the AAPAof no help to Intelested I>crsons who wcre ilffecled bv an "gency decision, but who lacked stand In!:! under an ilgency s1alUtt= providhlg only a limited right of rI.lvlllW. Fortunmcly Brookwood rep.llrs the dilmage. III . The Brookwood decision
In Ihe December 1986 Brookwood decision, the ilPI>Cills court ignoled its diclum in Druid City and correctly ap1'1100 the AAPA to eStablish thllt non-appliColnt hospitals Indred had AAPA standing to protest SHP":s decision to grant a CON to an applicant hospital. Further, the panel said, non.applicants were entitled to AAPA Yenue and hence could filc In Ihe counties o( Iheir principal place of business as pr(Jllidcd by the MPA. Procedurally, as Inc appeals coun stat· ed, "The sole iSSUe before US n(1.V i~ whether the Jefferson County Circuit Court abused Its discretion In denying [SHl¥:sl motion 10 tfansfer Brookwood's ilPPcill to Montgomery County Circuit eoun.~ But the court first decided that Brook'M.XXl indf.oed had $Ianding- undcr the AAPA: ~II appealS to Ihi~ coun lha' Blookwood was t'nlit/cd to ij ppc~l ISI'U'A's] decl· ~Ion. pvrsuant to the .•. AAAA .•. Brookwood, al 3 (emphasis added) The p.lnlll dislinllubhed Mobile Infirm~ry ..i IlMIlving ar appeal filed by anllllp/lC~nt hospltill for which appeal U
procedurt! was alrt!ady "Olherwise pr0-
vided by law" In IIll' SHWo. Statute. As to Mobi/(! Infirmary, thc court slatt'<l: "Unde, ,'I specific ISHPA] sl,)tute, ~ appeal from ISHIW>I mllnllon a CON application (an be broughl 0nly In llw;l (OI.Inly wheoe the CON ,'II>--
pllC.. nt ~Ides or Is 1000a,ed. Ala. Code
(19751. §22·21·27S{14)_ Till' result was til(! dismissal 0( lhe ;J/JI}/IGIn1'5 al>peal. ~In this case, howeYel, we an! nO! dealinll with an applicanl's appe~l . Rillher, 8rOO1<wood and lhe Dlhe, appellant' alt' tn1er.e~ opposed 10 lhe gl';lnl'"8 0( a CON applicalion by [SttA>.l Tht'fe being no S(JMe PI'OYk,t· Inll fOr non-;tl)pllcan" s .ppeal 0( [SHPAIJ]lICTions. lhe proced~res p!OIided by Ihe MPA, Including vi:l1l.11l, are applicable here. At5 As a result of Brookwood, dggrilM.'d persons who are entitled under the AAA'. to file an al>peal, though not Utlder a specific asency statu te, nO'N are ent!lled to the full p;'lIloply of AAPA procedures. Ironically, h~r, an <lppe'lan! enti,If,.'(I to file under lln ilgency stil'ute remains limited by the filing procedules of 'hili St:.lu,e, as a rt'Sult of I1rookwood. Arguably this aspt.'C' of Brookwood Is IncorrL'Ct, since Ihe AAPA ~press ly provides that while iln agcocy can pl'OYide more liberal review prtwiSions than the AAPA, it cannot pl'OYldc less: the legi ~ lature Intended the MB\ at least "a minimum procedural code for the opelOltion 01 all state ilHendes." Section 41·22·2(a) 8rookwood c reaK'S an anomalous sltua· tion where an ilGGrlClt1!d non,applicant party has access to scvcr;ll Yenues in which to appe.ll a SHPAdecision, while a CON applicanl hospital IS limited to one. ThaI aspect of Mobile /rlfirm.lry Sur· vives after Brookwood. NO'N ills at leas. clear that wOcre a per!>On has AAPA st.lndlng to apl>eal an aHency dt'Cl slon, thai perso1 may (jle as provided by §4 1·22·20 of the AAPA even If ,he a8ency stalule did not provide a rlBhl of tlppeal. However, if the person could have fiI(.'C 1 :.n :.ppe<ll under the aHency SMlute, Ihe aBcncy stalule will control filing of the apl>cal. u
IV. Rules of evidence .md KOpe of review ~nue ilslde, It nOY{ is apparen t the "'APA will govern other aSpc(ls of judicial review of agency decisions, includIng applicable rules of evidence and Ihe Slandard of fC'Jicw. These two questions ,lrose in another case decided bv the ap-
SCpll!mi:H!r 1987
peals court, agilln Involving competing hospitals arid the SHPA statute. Regional Dialysis o( Anni510n v, NorlheiJ5t AIDb.:lm.l Kidney Clinic, Inc., 480 So. 2d 1226 (Ala. Civ. App. 1965). InvolV(!(ltwo hospi tals competin g (or CONs (or a dialysis lacllity. (Both CONs were appro.ed; each hI:lspital disputed the 3Wolrd to thc Dlher.) On the issue of scope of rcvi(.w, thc appeals court elabor,ltcd on the nature of "review on the record N : .~ review 10 detcrmiO(! whether from the m::OId. lhere w;lSII proper finding 01 (am and wh<.1her, under the klmlnlwilh-.e PlOCedu~ Acl, Iht' lliw WdS Ilropt!rly appl,ed to those (.leIS. ~ review rhe circuli COM Judgment wilhoUl any pA!SUmprlon 01" COflt"!CtrlCSS, sfocll the court was in no bener poshlon 10 review the order o( Ihe !Joard Ihan IW are .. "
Re8/onal
DilJl~;s.
at 1227
The appeals COUll staled that the orc Wnus rul ed0e5 not apply In a r~icw of circuit court de<ision: since circuit court revIew is on the record of the adrnlnlstr.... tlve procc('(!ing below, the circui lludge has no ad\lOln1~ge over the appellate court. The AAPA Itself sets ou t the standards (or judidoll revlcw. Under §41-22-20(kJ, a coyrt may reverse or modify an agency decision If Ihe agency action was: (1) In vlolmlo' of constitutional or st.ltut ory provlilons; 12/ In /'~CI!!iS 01 the statutory Ru thorl ty of the agency; III In violation 01 arly poe"ln/'nt agency full'; (4 ) m;lde upor unlawful procedure; (S) afleeted by ~alliel tiIW; (61 clearly erroneous!n V,t.'w of Ihe reliable, probati..e and sulx tilntl;ll evi. dence on thC whOle ll.'Cord; or (7) unrellliOnable, arbitrary or capricious or charaCTerized by ,1n abuse of dlKlcrlon Of a dearly onw,mantcd exercise of discrehOfl. In Olher word~, the reviewing court may r~rsc or modiiy for errors of law; for agency action which was .lrbl trary or capricious or ar'l abuse of discretIon; or where the agency decision was clearly erroneous In that It wa s not based on substantial evidence in the record as a whole. Regional Dialysis places the
The Alabama L,lwycr
AAPA in the malnSlream of administratiV(' law with regard 10 Ihc scope of "m\liew on the record:' See, e.g. In RegiorMI Dialy,is the apl>eill~ court also addressed the changc in rules of eYidence dlc1ated by the MPA: 'While administrative a81'llCles hiM! not previOUSly betn reslricted to the leg.ll fules of evidence used In oou" 5 of Inw, ESlcs v. Board o( Funeral Set> ~;ces. 409 So. 2d 603 (Ala. 1982). the Admlnlst"ul-.e Proccdule N.t W«ific<llly provides that tile lUll'S 01" evidence are to be (01la.Yed in contesled cases; 541-22-13, Cock: 1975
Regional
Dia/ysl~, ~t
1228
Here, howt......er, the resu lt may have over·
type documentation, Furthermore, the dt.'Clsion cuts against the basic principle of the AAPA, thaI agencies moly prOVide mom llberalleview than the AAPA, but not less. Noocthelcss, appell;lnts are no.v on notice In.ll while AI300ma courts work Ihrough the notion Ihat the purpose of Ihe AAPA is 10 standard ize and simplify revle'>'l procedures and incre<l5e Ihe case and ;l\lJilability of ludiclal review, the safer course for the pfCS{!nl is to compl y with which~r provl5lon Is the more strlngCnt, whether AAPA or agency. ,OOlNOItS
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Iy restrlcled administrative flexibil ity with reg;ud to evidence. The appeals courl h;ld SI;ltcd : "Thi!tfI m:I"C no dffidilYlIS, depositions or documellls supponing RefjiOfldI) allcgi1tions. As such, Res/ona/ did not ~how '8000 cause' ... •
,""
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The SHPA statute provided that the basis for re-consldcrtllion WilS " written present.ltion of evidence of 'good cause:" Thus, the appeals court looked to the agency's pre-AAPA rules, and applied 10 the agency situation essentiilily the evidentiary standards for summilry judgment in the judicial si luation - I .~" mere allegations were not enough without the type of sUPllOrtlng documentation requIred for It mOllon for summ{lry Judgment. On certiorari, the supreme court agreed with the (Ippe(lls court that by failing to su~ mit suffICient evidence, the plaintiff had fa iled to show "good cause" for its reconsideration request (though the supreme COurt did nole that under tne AAPA an a8~ncy 1$ not necessarily restricted to evIdenCE! 'ldmissible under Ihe rules of evidence: see §41-22.13). The Regional Dialysis holding on rules of t.'\Iidence w.ts not dearly mandated by thc MPA, lIS result was to impose judiclallya standard for an application for rehearing which w.ts arguably stiffer Ihan either the agency's own rules, or the AAPA sl.mdard for reconsldcralion, found in §41-22-17, whIch requires ",luthoritles" and a detailed c)[pl anation bul does no! require wmmary Judgment.
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Alabama State Bar 1987 Annual Meeting 1 Mobile BDr Assocl.uion president Marshall DeMooy welcomed Ihc slate
t
oor 10 Mobile.
2 Vice pres/denl Phillip Adams,
3 Bench and Bar luncheon speaker Stephen Sachs waS presented a $pcclally in-
Opelikd, responded for Ihe ASB.
scribed copy of rIle book Alabama.
5
Rowena Tt,.','8UC, 81rmln811am, ((.'(;clvcd (he ASB Award of Meri/ fOf her IClldcrsltip of the IOlTA commilCce.
6 Amon8 fhe spc lkcrs for ThufSWy'S section meetin8s was paSI pres/elM! William /-Ia irston, Jr., Birmingham, who spoke 10 rhe BankruplCY and Commercia/Law SeC/ion.
a
280
7 Incoming YLS pres/denl Ch.uli:!! R. Mixon, Jr., Mobile, expressed the section's apprcclailOfllo outgoing president Cla ire 81ack, TUSCtl/OOSd ,
September 1987
8 Amon8 the hosts for ThursdJy evenIng's mcm/)er5hip reception was past presitknt E.r. Brown, Birmin8ham, shown here with ASB staff members Margaret Boone (Ief!) and Diane v.t>/don (ri8h!).
9 Presldem Scrll88s, his wife, Kay, and their daughrcr. Shannon, enjayed the hospililliry . ..
10 ... as d,'d ASB BO<Ird of Bar b· amlners Chairman David Boyd, Mom· gomery, and his wife, Gretchen.
11 Clilire Blacle and Sid lackson were ,lmon8 the youn8 lawyers p.Jflying on the US5 Alabafflll.
12 Friday morning. ASB past presiclcms en;C!ye(i their traditional hreakfast ...
15 ... D.lVld ISyrne, Momgomcry. on rCCCIlI crlmilla l ch..dsions ... 13 ... as (he Alabama Law FounclJllon Board of TruStees conducted a meetln8.
14 Over 700 members came 10 "Update '8,.. to hear such speakers as ...
The Alabama Lawyer
16 ... VVcndcll Mitchell, Luverne, on legis/alive dcvelopmcms .••
281
路.,,,, ALABAMA STATE BAR 17 ... and Gary NuckJby, Humsvi/lc, on lawyer
elfllcs.
Cc.
18 Chief Justice
"80" Torber! chlll!ed with P,e~/denr Scru8gS.
I
'WeioO,""'
ALIBA"A SlATE BAR Reception ~oo
100 II"'
.
, 1.. 1 ny
19 Spou ses boarded th e bus for
"
.
. .. 21 A widf! array of lreal~ was the des5cII party . ..
Sp,lnn Milner. preside nt, In surance Specialists. Inc., hOsted Friday nishi's rccepllon.
sm"cad for
23 u.s. Deparlmem of TrdllSporlilfion Secrt'tJry Elizabeth Dole WJS SOftJrd,ly 's keynote spellker. ',,,od,,,,d by former Consressman Jack Ed路 ,-,-"c.-- pictured).
president off-guilrd w/lf!n she
EE
Ifi'nsporlillion 10 their luncheon ill (he
Mobile Country Club.
22 .. , where Birmingham's "Three on entertained.
51"'0,,.
24 The secretary CiI!.lghi Ihe /JU8ged him,
2S lim Ward, Birmingham, received the other ASB award of merit for his service .'IS chairmiln of the CUen! Security Fund Commitlee.
262
26 W.N . "'Rocky" Will son,
ForI
Pilyne,
Wil S
among the QUlgoing board lI1embers wllO received commemornllVC mCd{)llIoll~, , ,
27 .,' as
Wil S
EdWCIrd Boswell,
Cf,lnf,lViI ,
Sf!ptcmbcr 198 7
'''''"Il\
••
E
28 Richard Dorman, Mobile, IJnd othcr oulgolng bar eX1Jminl!rS received tokens of IJ/JPIccialioo for their service.
.
ImmediiJ/C P0151preslden! James L. North, 8irminsh,lm, prese~ed the ScruBSs
family with the traditional sliver presiden/'s pliJque.
", "/
30 Anoehcr paSt presidenl, William 8. Hairs/on, /r. , Birmingham, recosnizcd Pres;· den/ SC'U8B~' c(forU in lort reform by presentins the first "Dilvid and Goliath Award."
31 Pres idem
SC'U88~
rcclred Gary Huc/Qby's QuaJi(;c.lIiOilS /0 SCf\/(' iU
32 New ptesidem Ben 1-1, t'Iarrls, /r., posed with PfCsldenl-eiecl Huckaby and paSI president
Scruggs . ..
president-eJcct 1987-88.
34 President Harris Ihcn
33 .,. lind then with his paren!!, Mr, and Mrs. Ben H. Harris, Sr., wife MIlTtha, )Ofl Ben ~I. II,mls, III, and mother-In-law Mar/hi! Limbelh. The AiabanJ.l (awyer
presided over his firs t board mooring Clnd ,wother en· loyable annual meeling Cdme 10 a close.
283
ele opportunities ESTATE PLANN INC UNDER TAX REFORM ACT OF 1986 Ramada Civic Center Plaza, Birmingham
Cumberla nd Institute lor ClE COS!! $90 (20S) 870-2865
TORT REFORM Ri verview Plala H otel, Mobile Mobile Bar Associa tion Credits: ).0 Cos t: $25
(205) 4)3·9790
24
EVIDENCE Ramada Civic Cenler Pial;), Birmingham Cumberland !J\sti lute for e l E
Credits; 6.6 COS t: $11 5 (205) 870-266 5 FAMILY LAW Civic Cen ter, M ontgQmery
Alabama Bar Institute for ClE
Credits: 7,2
thursday
18
\tin Braun Civic Cen ter, Huntsville Alabama Bar Institute (o r ClE Credi ts: 7.5 COSI ~ $85
(205) 346-6230 ESTATE PLANNING UNDER TAX REFORM ACT OF 1986 Sheraton Riverfront, Mori tgomery Cumberland Institute for ClE Co st: $90 (20 5) 870-2865
25
friday
2
friday
TORTS Civic Center, Monrgomery Alabama BM Institu!!'! for ClE Credits: 7.5 Cost: $75
1205) 348·6230
2-3 Hyal1 Regency, lexington University of Kentucky College of Law Continuing legal Educa ti on
(606) 257-2921
EQUITY PRACTICE
friday
(205) 348·6230
MINERAL LAW
Cost: $85
(20S) 346-6230
TORTS Ramada Inn, Mobile Alabama Bar Institute for ClE Credits: 7.5 COSt: $85
TORTS
17 thursday
1 thursday
Harbert Center; Birmingham Birmingham Bar Association Cr(..'Cli t s~
3.2 (205) 251-8006
COSt: $25
8
thursday
CRIMINAL LAW
CRIMINAL DISTRICT COU RT- THE
BASI CS Criminal Justice Center, Birmingham Birm ingham Bar Association
Croo its: 3. 2
Cost: SIS
TORTS Civic Center; Birmingham AI,rbama InStlrut¢ fOr ClE
aM
Credits: 7.5 Cost: $85 (205) 346·6230
(lvic Cen ter, M on tgomery Ala bama Bar Institute for ClE Credi ts: 7,2 Cost: $65
(20S) 348-6230
(205) 251-8006
ESTATE TAXES Harbert Center, Birmingham
ESTATE PLANNING UNDER TAX REFORM ACT OF 1966
Birmingham Bar Association
Admiral Semmes, M obi le Cumberland Institute for ClE
Credits: 1.0 (205) 251-8006
COSt: $90 (205) 870-2865
Cost: $10
FAMilY LAW Civic Center, Birmingham Alabama Bar Institute for eLE
Credits: 7,2
(205) 348-6230 284
Cost: $65
DRUG TESTING: THE lEGAL ISSUES INyn(roy Hotel, Birmingham Irwin Associates, Inc. Credits: 7.6 Cost: 51S0
(919) 229-9134
8-10 TRIAL EVIDENCE, CIVIL PRACTICE & EFFECTIVE LlTIGAfiON Mill s Ho use Hotel, Charleston American Law Institute-Amcrfcarl Bar Associa tion ( mdIIS: 23.9 COSt: $495
(215) 243-1600
September 1987
WORKER'S COMPENSo\TION Rar'nOOa Civic Center Plaza, 81rmlngham Cumberlnnd Institute for e lE Cost: $90
(20S) 870-2865
9
RUL E 11 AND OTHER SANCTIONS
friday
Hotel Meridien, San Fran cisco
Practi sing law InslilUte
SCHOOL LAW Birmingham Alabama Bar Institute for
Credits: 6.6
Cosl: $275
(212) 765-5700
elE
CredlIS: 7.5 Cosl: S8S (205) 348·6230 CRIMI NAL LAW
18-23
Alabama Bar InsWu te {or elE
EVIDENTIARY PROBLEMS IN JUVEN ILE & fAM ILY COURT
Credits! 7.2 Cost: $BS (20S) 348·6230
National College c:J Juvenile Justice
\r\!ynfrey Hotcl, Birmingham
15
thursday
PROBATE AND ADMINISTRATION OF ESTATES Civic Center, 81rmlngham Alabama Bar InsWute for e l E Credits; 7.1 COSI: Si llS (20S) 348·6210
R~no
(702) 764·6012
21-23 NEGOTIATIONS Unlycrslty 01 North Carolina, Chapel Hill National Institute (or Tri al .Adyocacy Credits: 17.0 COSt: $6050 (600) 225·6462
15-16
22
CONDOMINIUM AND CLUSTER OEVElOPME"TS
OUI Sheraton Riverfront, Montgomery Cumberl and Institute (or e l E Credits: 7.2 COSI: $90 (2051 870-2665
Miami Beach Miami law (cnwr
Cmdi ts! 16.2
thursday
(305) 284-4762
ADMINISTRATIVE LAW LABOR LAW
Westin, Dallas Soulln.vestern legal Foundation
Civic Center, Montgomery
Alabama Bar Instituto for ClE Credits: 7.2 Cost: $85
(214) 690-2377
16
friday
PROBATE AND ADMINISTRATION OF
ESTATES Civic Ccnl<!r, Montgomery Alabama Bar Institute for e lE Credits! 7.1 COSI: $11 5 The Aiabam,l Lawyer
23
friday
CURRENT PROBLEMS IN BANKRUPTCY I'!oliday Inn, Jackson Mi SSlssl P Center for Continu ing legal Educat on Credits: 7.2 Cost: $ 100 (601) 982·6590
I,1
OUI
Admiral Semmes, Mobile Cu mberland InstiMe (or CLE
Cred its: 7.2 CQ$I: 590 (205) 870-2865
23-24 EVIDENCE Civic Center, Birmin gham Alabama 8ar Institute for elE Credits: 12.0 Cost: $ 140
(205) 348·6230
29
thursday
INSURANCE \bn Braun Civic Omter, Huntsville Alabama Bar Institu te for ClE Credits: 6.8 C05t: $65
(205) 346·6230
30
friday
INSURANCE CIvic Center, Birmingham Alabama Bar Institute for ClE Credits: 6.8 Cost: $85 (20S) 348-6230
OUI Ramada (lvlc Center Pla ~a, Birmingham Cumberland Institute for ClE Credits: 7.2 Cost: $90 (205) 348·6230
HOW TORT REFORM AFfECTS YO UR PRACTICE Birmingham Birmingham Bar AS50claUon Credits: 3.2 Cost: $25
(205) 251·6006
285
de opportunities
5
CIVIL PROCEDU RE
thursday
Civic Center,
Credits: 6.3 Cost: $85 (20S) 348-6230
INSURANCE Ramada Inn Airport, Mobile Alabama 8M InstUutc (or ClE
CreditS: 6.8 Cost: 585 (20S) 346-6230 CHARITABLE GIVING AND YEAR路END
WORKER'S COMPENSATION Shenllon RIYCffronl, Montgomery Cumberland InsliMe (or eLE Cost: $90
Ramada Civic Center Plala, Birmingham Cumberland Institute for e lE Cost: $90
(20S) 870-2865
(205) 870-2865
6
Mmlral Semmcs, Mobile Cumberland Institute for
INSURANCE Civic Center, MOnlgorrlery Alabama Sar Institute for
elE
Cost: Sas
(205) 348-6230
TAX PLANN ING
WORKER'S COMPENS.路\TION
friday
Credits: 6.8
M0l'l1g0 fl'lCry
Alabama Bar Institute for elf
elE
Cost: $90
13
friday
CIVil PROCEDURE Civic Cen ter, Birmingham
Alabama Bar Institute for elf Credits: 6.3 Cost: S85 (205) 348路6230
15-19
(205) 870-2865 PROSECUTI ON OF VIOLENT CR IME
12
thursday
The Monteleone Hotel, New O rleans Niltional College of District N1orney$ en31 749-1571
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Y" appointments v dates for long term matters v profeSS ional commitments v other impo rta nt commitments v warnings of upcom ing fi nal due dates
A ssist Docket Control, Inc,
P,O, Box 1856
Mason City, IA 50401
1/8001233路9869
286
SepfcmQer 1987
Committees and Action Groups of the Alabama State Bar Committees: Committee on Lawyer Advertising and Solicitation Chairman:
1987·88
Clenda G. Cochr,'lll-Birmingham
Vice Chairm.ll\:
Gregory O. Colton-Birmingham Members: Stanley E. Munsey- Tuscumbia Ri chard A. 1higpen- TuscalooSJ Thomas A. Carraway-Birmingham Thomas O. McDonald- H untsville Andrew W. Bolt, l1-,4.nnislon
Vreeland C. Johnson-Andalusia lJooker T. forte, Jr.-Eutaw
PJlriciJ M. Smilh-Columblarla
Judy 1\. NCYooComb--Sp..lnlsh Fort Edward Ashton Hill, !II_ Mobile George M. Higginbotham- Bessemer
larry ClinlOfl Odom-Lipscomb A. Allen R.1msey- Blrmlnsham
YLS Rl!presental.i ve: John Terrell McElhcrly-Birminghilm
Stllrf liaison: Alex W. jack;on-Montgomery
Editoria l Booud , The Alabama Lawyer
Chai rman and Edi tor: Robert 1\. Il uffaker-MontgorriCry
Associate EdUor:
Carol Ann Smith _ Birmingham M enlbcrs: Gregory H. Hawley-Birmingham James N . BrONn, III_ Birmingham W. Greg Ward- LaOf!It Kei th B. Normarl- Montgomery GfO\ICf S. McLeod_Birminghi'm P.lIric.:k H . Gr.wes, Jr._Huntsville Champ Lyons, Jr.- M obile lulla Sm<.'<is SU..•.."'ul_ 8Irmingham Frank 8. Potts-Florence SU50.1n Shimek DePaola- Montgomery Samuel N . ClOsby-Bay Minelle Robert P. DermlstOrl- Mobi le Si aff Ullison and Managing Editor: Margaret l..lcey-Montgomcry
Comm itlce o n Access to legal Services Chairman: Anne W. Mitcht!ll - Birmingham vice Chairman: R. Preston Bolt, Ir.-Moblle M embers: Ruth Ellubeth Flanders-Gadsdcn Kearr)CV Dt.oe Huti ler.III- Blrmlngham Margaret M . Edw;trds-Birmlngham J. T. SlmorlclIl, Jt- Homewood Robert L. Gonce-Florence Mary DillOn Torbert- Mobile Fr<.oddl L. Aronov--Blrmlngham Katherine Elise Moss-Huntsville Robert M . Vokinberg- TuscalooSi! Tamar.1 Young Lee-Mon tgomery I, Wilson Mitchell- Florence Gary P. Wilkinson- Florence Rebecca l. ShoY.'$-Monlgomery Cecilia J. (omns-Mobile W. Thomas Gaither-Eufaula Gllbcrt B. Laden- Mobile J. David lord•.m- Moblle Gene M. 1·lamby. Jr.-Shemeld Carol I. Wallace-Tuscaloosa Nancy S. Martin- Bessemer YlS Representa ti ve: Frederick T. Kuykenda11, 111Birmingham Siaff Liaison: Mary Lyn Pike-Montgomery
Advisory Committee 10 the Board of Bar Examiners Chairman: John E. Chasorl-Bay Minette M cml>l'rs: A. I. Coleman-Dec.ltur Phillip A. laird-Jasper Siaff Llaisun: Reginald T. Hamner- Montgomery
Th e Alabama Lawyer Bar Directory Committee C hairman and A5slstant Ed itor: Richard E. FIQ\o'Iers-Columbus. Ga. M f! mbcrs: Paul A. Pilte- H unts~i1!e Edgar C. Gf!ntle-Birmin8ham Susan B. Bevill- 8irmlngham Brenda Smith SlCdham-Annlston Michael l. Brownfield-Fort Payne Edward H . Stevens-Tusealoosa Mary Seth Mantiply-M obile laurie Newman Smith-Huntsville Donald R. Harris-Birmingham laura Ann Call(lVo'ay-Montgomery Romaine S. Seo", III_ Birmingham
YLS Representative: Rebecca L. Shcrws- Montgomery Stolff Liaison: Margaret Lacey-MOfIIgomery
Cha rac ter and Fitness Comm illce PANEL I Chairma n: Wilnda D. Devereaux- Montgomery M embers: Howard A. Mandell- Montgomery Thomas A. Smlth-C~lIm'ln PANEL II Chairman: lames lerry Wood _ .v.ontgomery M embers: P. Richard Hartley-Greenville Robert E. Moorer- Blrmlnghtun PANEL III Chairman: Caroline Wells l-tinds-Moblle Members: Robert W. Barr- Trot David B. Byrne, Jr.-NIOntgomery Alt ernat es - Panels I, II and III : lohn B. ScOIl, Jr.-Montgomery E. Ashton H ili , III- Mobile Sta ff liaison: Norma Jean Robbins- Montgorll(Jry
287 The Alabama Lawyer
Committee on Correcti o nallnstitulions and Procedures Chilirmiln: Frank R. PJrsons-Birmingham Chairman Emeritus: John C. WJtklns- Uniyersity Vice Chairman; Ablgl1il Turner- Mobile Members: Charles R. Gaddy-Millbrook Sydnw Albert Smith- Elba Mary Dllr.orl Torbert- Mobilc Mary K.1Y Laumer- lafayelle Gregg B. E~rell-Montgomery William J. Samford-MI. Meigs Mervyn Mkhacl- Dl.'C.,tur John T. Hilrman-Montgomery William A. Kimbrough. Jr.-Mobile j. NormOln Bradley, Jr.- Huntsville YLS Represcnl.'live: Ronald C. Forehand- Montgomery
Siaff liaison: Mary Lyn Pike-MOntgomery Committee o n Continuit y, Program and Prioriti es Chairman: Jon H. Moores-Decatur Co-Chairman: Thad G, Lons- Blrmingham Members: WilYne l. Williams-Tuscaloosa Mac B. Grl.'.1VCs- Blrmlngham l. Bruce Ables-I路tuntsvllle Winston V. Legge, Jr.-Athens Clarl.'ncc L McDorman, Jr,-Blrming' ham William E. Shinn, Jr.-Occiltur YlS Reprl.'!i(ml<lfi\ e: Charl es R. Mixon, Jr.-Mobile Siaff Liaison: ReginOlld T. Hamnl.'r- MOntgornery Commillee on
a e lil.'nt Security Fund
Chairmiln: James S. Ward- Birmingham Vice Chairman: Lowell A. \l\bmack- TuKilloosa Ml.'mbers: Susan S. Mitchell- Birmingham Milrvin l . StCW;1rt, Jr.-Birmingham Michael E. Ball.lrd- Moblle U.e I-I. Copeland- Montgomery Staff liaison: Reginald T. Hamner-MOntgomery
266
Ethics Educa tion Committee Chilirman: Ernest L. I'tlller- Huntsville Vi,~ Chairman: Jacquelyn E. Shaia- BirmlnghOlm Members: OJi~r P. Head- Columbl .. na Oilniel E. Morris-Annlston Saril Dominick Clark- Birmingham Frank O. House-Birmingham Richard A , Thlgpen- Tuscaloos,l l ynn W. links, III- Union Springs Annella F. Arnold - Birmingham William B. lloyd-Blnnlngham John 0 , ClementS-Birmingham Fred C. CollinS-Mobile PhilJiI) Tl.'(l Colqu lt1- Montgomery Dorothy F. Norwood- Montgomery Ex Officio: Wilbur G. Silberm an- Birmingham YLS Represenlati ve: Stephen A. ~'-Birmin8ham St.,(( Liaison: Alex W. JlIcksorl- MOrltgomery Finance eOmmillee Chairm,lI1: Gary C. Huckaby, president路ell.>(lI-Iunisvilll.' Vice Chilirman; P. Richard HanJey-Grecnvilie Mcmbel'!l: Frederick G. Helmsing-Moblle Cheryl L Price-Montgomery Tl.'rry O. Giliis- Fon P.lyne James C. lianon, Jr.- Birm ingham Henry B. Hardegree- Montgomery IVresl Douglas Herrington-Huntsville Richard S. Manley-DemopoliS YLS Reprt'Senlative: Charles R, Mixon, Jr.-Mobile Staff liaison: Reginald T, Hamner-Montgomery Federal Tax Clinic Committee Daniel 1-1, Markstl.'ln, III- Birmingham jllmes T, Jackson- Montgomery Jerome D. Smith- Montgomery Andrea L. Wilcher- Birmingham Ray D. Gibbons-Birmingham L. Lister lilli- MOntgomery Robert C. Tanner-Tuscaloosa Jackson P. Burwell- Huntsville L. B. Feld- Birmlngham Zl.'bulon M . P. Inge-Mobile Slilff Liilison: Milry Lyn Prke-Montgomery
Future of the Profession Committee Chairman: Bryan E. Morgan- Montgomery Vice Chillrman: Ann English T.lylor- Moblle Members: Thomas M. GogganS-MOntgomery R. McKim Norris, Jr.-Birmingham R. B. McKenzie, III- Montgomery Jarlle5 T. Sasser- MOntgomery Gordon 0. Tanner-MObrle Vanzclla I\lnn McPherson- Montgomery Charles l . SparkS-Birmingham John O. SaxoI'I-W.lShlngcon, D.C. L. Virginia McCorklt'-Birmingham Br.ldley R. Byrne-Mobile Schuyler H. Rlchilrdson, lU-l-tuntsville GreSg B. Everl:ltt- Monlgoml.'ry YlS Representative: GCOfBe WJrren laird, II- Jasper Slilff Liaison: Mary Lyn Pike-Montgomery Indigent Oefense Committee Chilirman: Dennis N. Balske- Montgomcry Vice Chairl1'\1ln: Joel l. Sogol-Tuscaloosa Members: Gl.'orge Albert Nassilnny, Jr.- Tuscaloos.'1 PJul D. Brown-Mobile Kim Rosenflel(t- Birmingham William R. Blanchard, Jr.-Montgomery Rick HarriS-Montgomery D.lnlel R. Farnell, Jr.-Birmingham Eugene P. Whitt, Jr.-Montgomery John E. Rochester---Ashland E. Haml)ton Brown-BirmIngham Nancy S. Martin- Slnningham lames E. Williams- MOntgomery YlS Representative: John M. Plunk"""'-\\hens Staff liaison: Mary Lyn Pike-Montgomery tn surance Programs Committee Chairman: Henry Thomas Henzl.'l- Blrm!ngham Vice! Cha Irman: Cathy S. Wright- Birmingham Members: Gcofge R. Copeland, Jr.-Mobile Cooper C. Thurber- Mobile Chilrles H. Moses, III- Birmingham September 1987
J. Bentley Owens, III- Birmingham Karon O. Bowdre-8lrmingham John T. Moorcsmith- Mobile Edward S. Sk.:.dgc, III- Mobile Thomas E. Eilis-Blrmin ghilm Marlon f. Walker- Blrnllngham Ko1thy Long Skipper- Birmingham Jam(..'S R. Seale-Montgomery Richard W. VQllmer, III- Mobile Tazewell T. Shepard, III- Huntsville William Collins Knight, Jr.-8irmingham Stimley D. Bynum- Birmingham h Officio: Phillip Stano-W,nhlngton, D.C. Staff liaiSOn: Reginald T. Hamner- Montgomery Judicial Conference for the Sli'lle of Alabama Fournier J. G..1Ie, III- Birmingham John F. ProclOr- Sconsboro Dilvid A. Bilgwell- Moblle Committee on Local Bar Activities and Services Chairman: J. Thomas King. Jr.-Birmingham Vice Chairman: Jack Omke-Tu5caloosa MemberS: Ralph A. Ferguson, jr,-Birmlngham Carolyn B. Nelson- Birmingham Laura A. Calloway-Montgomery Jilck W. Seiden- Birmingham William E. Siniard, Jr.-Birmingham Carol Ann Smith- Birmingham D. T,1ylor Flowers- Dothan Roben D. Segall- Montgomery William G. GanU- Birmlngham Charles E. RiChardson, III- I"untsvil le loring S. Jones, III-'kstavia Hills l ames H, Frost- Mobile YLS Representative: 1'1. ThomilS Heflin, Ir.-l1Irmlngham Staff liaison: Mary Lyn Pike-MOntgomery i;Jw Day Committee Cha irman: Carol Sue Nelson- Birmingham Vlc~ Chairman: I-I. E. Nix, jr.- Montl!omery Members: Charles Reeder- Mobile Denise Boone Azar- Montgomery Roben P. MacKenzie, III- Birmingham Jilmes M . Proctor, II- Birmingham Grcgory J, McK(1)'-Blrmlngham The Alabam.1 Lawyer
Mark E. Spear-Mobile W.liter E, McCOY/an- Tuskegee Joanna S. ElliS-Montgomery Michael S. lack;on- Mo",gomery L.lura Crum- Montgomery Alva C. Caine- Birmingham VlS Repr(>S(>ntative! Rebecca l. ShoNs-Montgomery SI_,n Liaison: Mary Lyn Pike- Montgomery
Walter W. Kennedy, III- Oneonta Wi11lam D. Owings- Centreville Marlon Everette wynne, Jr.-Fairhope joel W. R..lmsey--Dothan Margar(!t Harris Dabbs-Jasper Winfred N. Watson- Fort Payne Staff Liaison: Mary Lyn Pike-Montgomery St.'CretMY, Llwyer Refe"," Service: Joy Meininger- Montgomery
legislative liaison Committee Chairman: Dexter HobbS-Montgomery Vice Chairman and 'mung Llwyers' Represenl.llive: James T. Sasser- MOntgomery M(>mbct"$: Thomas T. Gallion, III- MOntgomery Dr;!yton N. HamillOn- MontgomNY james l. Nonh- Blrm lngham Richard Izzl -Birmlngham William M. Beck, Sr.-Fort P.tyne Atley A. Kilchlngs-Birmingham George B, Azar- Montgomery W.llter R. Byars- Montgomery D. P.ltrick Harri ~Mo nlgomery John B. Givh.ln-Andalusla W. Clark Watson- Birmlnghanl Edwin K. lIvln8~ton-Montgomery Alyce Manley Sprucll- Tuscaloo5-J E. Hamlltoo Wilson, Jr.-Montgomery Starr Liaison: Rt!ginald t Hamner-Montgomery
Mil ilary law Committee
Alabama lawyer Referral Service Board of Trustees Ch" irman: M. Douglas Ght.>e-AnniSlon Vice Cha irman: I. Mich{lel William s, Sr.-Allburn Board Mcmbel"$: S. W.1yne Fuller-Cullmall Gary W. L.1ckcy-Scoltsboro J. Anthony Mcl...1 n- Montgomery R. LiJfry Bradford--ThscalOOSll Joseph E. Carr, tV- Mobile Daniel E, Morrls-Annl ~to n Julian L. McPhillips, Jr.-Montgomery Tommy R. Dobson-Sylacauga Rol~rt l. Gonce-Florence Robert Shannon Paden- TU sca loosa John Andrew Caddell, j r.-Decatur James E. Davis. It- Huntsville I'hillip I...1lrd- Jasper John Frilnk Head- Columbiana Terry l. Mock- Tuscumuia
Chairman: Thomas R. Elliott, Jr.-Birmingham Vice Chairn... n: Edwin K, livingston-Montgomery Members: William C. Tucker, Jr.-Birmingham William C. Stevens-MOntgomery john Oliver Cameron- Montgomery James S. Witcher, Jr.-Birmingham Patrick 1'1 . T.lte-Fort Payne William V. Neville, Jr.-Eufaula William A. Shon, jr.-Bessemer Alben C. Bulls, III- Tuskegee Insl. james R. Cliflon-Andalusia Millon C. DilVIs-Tuslwg(..'e Charles P. Hollifield- Montgomery Johl\ C. Fox- Birmingham A. Nell HudgenS-Mobile William B. Wxx::Iward, lr.-Columbia, SC Ira DeMent- Montgomery Staff liilison: Reginald T. H;:Jmner- Montgonlery President 's Advi sory Comm ittee Chairman: Thomas S. Lawson, jr.-Montgomery Secretary: William H. Albrittoll , lV-AndalU5ia M embers: Richard A. Thigpen- Tuscaloosa Alex W. NcYiton- BlrmlngharTl Robert W. O'Neill- Birmingham Ion H. Moores- Decatur Fred D. Gray-Tuskegee Harry W. Gamble, jr.-Selma Jere C. 5el!rest-Dothan I~ Richard Hartlt.>y-Gleenville G. l'lamp Uzz(>lIe, III- Mobile Mitchell G, Lanof- Mouile Warren B. lightfoot- Birmingham Caroline IAlelis Hinds-Mobile Staff Liaison: Reginald T. Hamner-Montgomery
269
Permanent Code Commission (Code
of Professional Responsibility) Chairman: Wilbur G. SI Ulerman-Birmingham Vice Chairman: lewis W Page, Jr,-Birmlngham Members: Wolde H. Morlon, Jr.-Columbiana William B. Hairston, III- Birmingham J. WilHam Rose. Jr.-Birmingham William C. Wood - Birmingham HuSh A. Nash- Oneonta Richard A. Thigpen-Tusc.lloos.1 lynn R. Jackson-CI,\yton William I. Hili, II- Montgomery Oliver P. Head-Columbiana John F. ProClor-Scollsboro Benjamin T. Rowe-Mobile Siaff UJ lson: Alex W. Jackson-Montgomery Professional Economics Committee Chairman: Conrad M . Fowler, Jr.-Columbiana Vict Chairman: Daniel E. Drennen, it- Mobile Members: Charlie D. Wdldrep-Blrmlngham V. Lee Pelfrcy-Troy James E. Tufllb~ch-Gadsden Dayid R. ArendJlI- Birmlnghnm Cheryl L Price-Montgomery Byron l;assiter- Falrhope William T. Coplin, Jr.-Demopolis Williilm H . I-Iardle, Jr.-Mobile Ray O. Noolln, Ir.-Blrmlngham YlS Representat ive: J. Terry McElheny-Bi rmlnghlim Siaff LIaison: Mary Lyn Pike-Montgomery Prepaid lega l Services Committee Chairman: Jack Wilyne Morgan- Mobile Members: Robert E. Sasscr- Montgomery Jack C . Polden- Bessemer William S. Halscy-Anniston William L. Chertault, III- Decatur Mark E. Martin-Birmingham ThomaS M . St!mmcs--.4.nnlston vLS Represt!nlalive: D. Pwlck Harris-Montgomery Staff liaison: Reginald T. Hanmer-Montgomery
290
Committee on Lawyer Public Relalio ns, Information and Media Relation s Chilirmiln: Anthony L. Cicio-Birmingham Vice Chairmlln: Byrd R. latham-AIhens Members: John M . Fr,lley-Binningham John E. Enslen-ÂĽktumpka Thomas D. Mc:Donald-HuntSYllle I. Perry Morgan-Birmingham Dick D. Nave, Jr,-Blrmlngham John H. 'lavette-Birmlngham Kay K. Bains-8irmlngham Edwin A. StricklanQ- Birmingham J. Richard Hynds-Bim\ingham C. Mac:LeÂŤl Fuller- MObile Joe E. Cook- Birmirlgham Mary Beth Malltiply-Moblle YLS Reprt.'SC!nlati vt: W;'Jiter ~rcy Badham, III_ Birming_ ham Siaff liaiSQn: Margaret Lacey-M()Iltgomery CommiUee o n Substance Abuse Chairman: Waiter J. Price, Jr,-Huntw ille Co-<:hairman: I. Michael Conaw.ly-Dothan Chairman Emeritu s! Val l. McGt.'C-OZ.:Irk Members: Carolyn B. Nelson- Birmingham lane C. lillie- Birmingham Dorothy F. Norwood- Montgomery John S. Gonas, Jr.-Moblle Carlton Terrell \r\!yrln- Birmingham Albert D. Ljpscomb- Ik>s~cmer Charles J. Fleming- Mobile James J. ihoml)5()n, Jr.- Birmingham Staff liairon: Mary Lyn Pike- Montgomery The Alabama State Bar CommissiOnerS' Supreme Court Liaison Committee Chairman: W, Harold Albritton, III-'ndatusia Committee Members: Phillip E. Adams, Jr.-Opelika William D. Scruggs, Jr.-Fort Payl'le Staff liaison: Reginald T, Hamner- Montgomery
Special liaison Tax Commitlee for Ihe Southeast Region Cha irm an: Norman W. Harris, Jr.-Decatur Members: Robert C. Walthall- Birmingham David M. Wooldridge-Birmingham Unauthorized Practice of law Committee Chairman: H . Dwight Mclnish - Dothan Vice Chairm an: B. Vaughan Drinkard , Jr.- Mobile Subcommittees: North Alabama H. Harold Stephens- Huntsville Braxton A. Ashe- Tuscumbia YlS Representatiye: Amy A. Slayden- Hurlts"lIle North Central Alabama: Wil liam H . Kennedy- Tuscaloosa Milton E. Barker, Jr.- Birmingham Melinda l. Denham - Birmingham Donald 61alr 80ggan- Blrmlrlgham Middle Alabama: Clevela nd Poole- Greenville Ralph Michael R.llford - Phenlx Chy W. Harold Albrillon, IV- Andalusia Hoyt W. H ill- Opelika Fred w, Tyson- Montgomery South Alabama: Joseph Daniel Whi!ehead-Daleville M . Dale Ma rsh-Enterp rise Action Groups Acti o n Group on Allernalive M ethods o f Dispute Resolutio n ChaIrman: G. Wayne Ashbee- Mobile Vice Cha irman: Cleophus Thomas. Jr.-Anniston Members: Don B. Long, Jr.- Birmingham Rodn ey A, Mox- Blrmlngham James L. Wright-Dothan Pete P.1r1ln - Blrmlngham Lynda Flynt- MorltgOfntlry William Douglas Wise- Birm ingham Paul S. Conger, Jr,-Tuscaloosa Sand ra Jo Grisham - Mobile Anne Laura Parker-OUrk M ary Lee Stapp- Montjpmery Jerrilec Sutherlin- Huntsville Pamela Willis Baschab-Foley Jacquelyn 5, Shala - Birmlngham VLS Represen~tive: Cecilia J. Collins- Mobl'e Staff Liaison: Mary Lyn Pike-Montgomery S~p/tmbl.'r
1987
Aclion Group on Establishment of an Asricultural law Section of Ihe Alabama Slate Bar Chairman: Von G. Memory- Montgomery Vice Chairman: Patricia Allen Conover-Montgomery Membtrs: Harry P. Long-.-\nnlston Thomas J, Knlght-.-\nniston George A. Monk-'-\nnbtOh James S, Hubbard- Anniston Harvey S, campbell, Jr.-Talladega I(obert O. Mc'Nhorter, Jr,-Centre Stephen p, Bussman-Fort Payne lames s. Sledge-Gadsden Warren G. Sartell, Jr.-Itemn Wlllian, S. Poole, Jr.-Dt'!mopolls John B. Scott, Ir,-Montgomery Earl Gillian, Jr,-Montgomery E. Terry Brown- Montgomery Collier H. Espy, Jr.-Dothan Mary J. Camp-Opelika Walter P. ClVo't'nowr-Tuscaloosa Sarah 8, MOOneyham-Montgomery Ruth S. Sulli."... n- Dadcvllle Joe B. Thompson, Jr.- Brewton Stan Ualron: Mary lyn Pike- Montgomery
Action Group to Consider Possible Reslructuring of Alabama's Appellate Courts Chairman: Rolx!rt H. Hmis-Dccatur Vice Chairman: James D. Prueu-Cadsc:lt!n Members:
Ernest C. Hornsby-Tallassee Alc>f W, Newton- Birmingham Beth Marje~ - MobUe Jerry M . White - Dothan Jerome A. Hoffman -Universi ty John F, Proctor- Scottsboro Wayman G. Sherrer-Oneonta William N, Clark- 61rmlnsham Charles O. Rosser- Tuscumbia M . R. Nachman-MOntgomery Charles CltNela nd- Blrmingham Robert 0. CO>f-Floren ce David R, B o~'d - Montgomery G, Sage lyons- Mobile Robert C. Esdale- M onl8omery Foumler J. Cale, III- Blrmin8nam Joseph A, COlquitt - Tu scaloosa
Slaff liaison:
Introduce Your Clients to a Valuable Service. l~fcr
them to Busines..'1 Vahl:ttion Sen'iccs for expelT determination of F.!.ir marker value of blisinl.'SSCS, and fin.lnO:tl an:tlysis and consulrarion in C\SCS of:
o Esbte pl:uming o &tate sr:ttlement o M:uita! dissolutions o Rec3~ilaliz.Uions o Emp oyec stock
o B:Ulkruptcy proc«dings o Mergers or acqlusition.'I o Buy...o;cU agreements o Dissident stockholder
owncl'$hip plans suits Conucr Dr. John H. Davis. m 4 Office Park Cirtle • Suite 304 • Bimlin,t':lIu, Abbal1la 35223 P.O. Box 7633 A • Binningham, abama 35253 (205) 870-1 026
BEABUDDY With lhe nunlb\:1 (II' new i)lIorr'1ey5 IflCrea51ng and lhe oumber 0/ jobt decreasing, mort i)nd more ;llIorr'1ey5 are goong ,nlO prOChce on their own and miSS the beN: fit 0/ the cou~'ing 01 11"10", ,~perlVOl!ed prilCtlhooefi. TN: Al3wrn;, State &r Commltt lli! on locill Bar ACliyitiea and Scrvic~ is .ponl!Oring a "Buddy Pro· gram 10 prOOJidoi! I"II:YX!r bar mltnll,ler, " f~lIow Iawyo'tr thc.-y nlIYJ conlU l! It they ~oofrOI1l a l)fobicm, need to;Wo; II CJJt.'!tioo, or ~Imply ",,,nl directION 10 Ike cou rthouse II you are a Iow.o,ter who Iw. fI..'comlly begun II prllCtlCe and would like 10 meet II I.lwyer In your area to cllll on occlliionafly for II hand, or if you II" the more e>fpc' rlerlCoo priICIoI ,oller "'lth Yllluable ,nformlltlon /md adVICe you're willing 10 Ihnrll, pk:6Se ~omplele ilnd relurn the form below. Your pMIIC' i~11OfI ir'l lhis progrilm "'Ill cert,,'nly bi!11I;lr.t tlw: bIIr ItII II ",hole H
local Bar Activities and Services Buddy Program Applicat ion Name
-
Firm Name (ir IIpplic.. bl~)
-
Addre •• Ci ty
S llote
-Zip
T~lephone
o N~Lllwy~r a Ellpf!:riem:or:d Lllwycr Please rNurn 10: AI"bama St.lle 8ar, P,O. Box 4156, M onlgomery, Alabama 36101.
Mary l yn Pll«~-Montgomery
The Aillb,1ma Lawyer
291
Action Group on the Bicentennia l of th e U.S. Con stitution Chairman: Emily Gassenhelmel- M Ontgomcry Vice Chairman: Charles D. Cole-Birmingham M em bers: Fr,lnk S. James, III- Tuscaloosa John Nathaniel Bryan, Ill- Birmingham Edwin K. Livingston- MOntgomery YLS Representath'e: Charles R. MIllOn, Jr.-Mobile Staff Liaison: Reginald T. Hamner-Montgomery Ac tion Group on Citizen ship Education Chairman: Chris S. Christ- Birmingham Vi ce Chairman: John J. COlem1m, III- Birmingham Mcmbel'lii: Frank S. James, III- Tu scaloosa John R. t.'M.m e- Blrmingham Robert O. McWhorter, Jr.-Centre Carney H. DobbS-Birmingham Michael l. Odom- M Ontgomery S\C\lCn Allan Thomas-Jasper James H. Starnes-Birmingham Carol Ann Ra smussen- Birmingham Bry.1Il K. Pilfker- Birmingham Walter Frankl in M cArdle-Mont. gomcry YL5 R('presenlat lve: Richard E. FikeS-Jasper Staff Liaison: Ma ry Lyn Pikc- Montgomery Action Croup to £Valu.' l e Proposed Revisions of the Alab.lma Constilution of 1901 Chairman: Charles D. Cole-BirmlnglMm
Vice Chairman: Edmon l. Rinehatt-M ontgom!!ry Members: John P. Adam s-Birmingham Joseph H. Calvin-D«atur James M. Campbell-l.nniston R. David Chri sty- Montgomery l.lwrence Dumas, Ir.-Birm lngham Conrttd M . Fowler-~t Point, GA loseph H. John~n , Ir.-Birmingham Joseph F. Johnston- Birmingham Ri ch.-.rd S. Manley-Demopolis Robert l. McCurley-Tuscaloosa William H. Mills-Birm ingham M . Camper O'Neal- Birmingham James D. Pruett- Gadsden Yetl(l G. 5.:1m(ord, Jr.-Opelika SlaH LI(lison: Mary Lyn Plk(!-M(lnlgomery
Ac tion Group On Establishment of Alabama Stat e Bar IOLTA (Interest on lawyers' Trust Accounts) Program Chairman: Rowena M . Tea gue- Birmingham Vice Chairman: Jack Drak(!-TuS(oiIloosa Membel'lii: lames M. Gaines-Hunlsville Kirk C. Shaw-Mobile David P. Broome-Mobile Grorge B. White-Gadsden Martha Jane Pauon- Birmingham Slanley Wei ssman- Montgomery William C. Younger- Montgomery A. Lamar Reid - Blrmingh(lm Robert P. Llne- Phcnix City lawrence B. '.'oil- Mobile Ronald P. DaviS-Mobil!! Robert l. M cCurlcy- Tusc.1IooS3
J. Knox ArgO-Mon tgomery George P. W.llthall, Jr.-PrJUvilie Robert E. Stein!!r, III- M ontgomery
YLS Represent.llive: laurJ L. Crum- Montgomery StaH Li.li5(}n: Reginald t Hamner- Montgomery Acti o n Group on Proposed Judicial Building Chairman: Maury O. Smith- Montgomery Vice Chairm.ln: G. Sage Lyons-Mobile Members: Rober! M . Hili, Jr.-Florence Fred D. Gray- Tu sk!!gl.'C J. Lisler H ubbard- Montgomery Judith S. Criu enden- Birmlngham Charles B. Arendall- Moblle ThomaS N. CarnHhers- Birmi ngham William H. Albrlnon, UI-And.-.l usia Robert E. Steiner, III- Montgomery
Ex Officio: John A. Caddell- DecalUr
YlS Rel>rescnIJUvc: James 1-1 . Anderson- Montgomery Slaff liaison: Mary Lyn Pike- Montgomery Professional Disciplil\c Aclion Group Chairman: OIiYCt P. t-Iead- Columbiana Members: Carol Jean Sm ith- Montgomery Paul E. Skidmore-TUSCaloosa Gary C. Huckaby-Huntw ille John F. Proctor- Scousboro Wilbur Si lberman- 6irm nsham Lewis W. Page, Jr.-Birmingham SlllH Li ~lison : AI!!)!: W. Jackson - Montgomery
•
NOTICE Begin n in g January 1, 1988, a n ew cert ific<lte o f divorce will be required by Ihe Sla te of Alabam<l. A lso effect ive th is date, all attorneys w ill be requ ired to file th is comple ted cerlifi ca te w ilh th e l>eliti o n for divorce. The Bu reau of Vital Statist ics wi ll not accept th e new certificates o f divorce un less all ite m s are comple te, including the confi d ential section. Fores l E. ludden , Ed.D., M .P. H. Sl ate Regis trar and Director Bureau o f Vi lal Stati sti cs
292
September 1987
• When you write wills, trusts, nnd estate plans, you WOnt your sou rces to be ns org:m izcd and ItS com prehensive as possible. Thill'S why AmSoUlh'g all new second edit ion Will and Tl'ust f"Orm Book is bound in scpa mtc V01 UIllL'S of wills and trusts. It includes lwcmy"ninc {,:omplctc dor.:umcnts tnilored to Alabama Inw- far more thnn ony other Alnbnmo form
book gives you.
We also provide you wit h pomllcl commClltaryoll each document, particularly helpfu l in estate planning, Best of all, il'S updntcd rcgU\:lriy to ensure continuing accuracy.
r"Or more informtllion or to order, call the AmSoulh Estate nnd l1'ust Planning Representative in your arc:l, nnd talk to somcone who spe.ks your I, ngu'ge.
Forl6urGmwil1gNcleds.
Annl$l()l1 2.35-9340 IJIrmlnlthmn J2605J90 Oet/Ilur 552-9319 Doihnn 793-..'\I.OJ IlurH~vUlc ~11 Mobile 4311 . &0('9 MonlllOrncry IUI·9'iOO , 1987 AmSoulh IlIInk. N.A.
The Alabanw Lawyer
M~mbct
IUIC .
FIAT JUSTITIA RUAT COELUM J
(" let justice be done though the heavens may fa ll") by William J. Underwood How many limes has learned trial
counsel
sa l
In
COUrl
after his argument
in riM)( of a motion arid known the Judgt! would allow him 10 p~ his point al the
appellate le...et rather than the circuit COUrl level! Pres dent John Kennedy
wrote a book ca llt"" Profiles in Coura8e. Kennedy's theme In the book concerned elected 0(11,1,11 5 "naking dt'Cisions th,!! were Ulll>opular and certain to hurt their politic", Cilmers. AI"oam .. Is very fcrlu路
nale 10 havc had a m;1n who nKOCiS the qualifications of Profiles. James Edward Horton, )r.
"'Iorton was the son of James Edwin
Horton, Sr., and Emily Donelson Horton, born in limestone County, Alab.lmil, ';muary 4, 187& He recel...oo his law degree from Cumberl;md UniversilY In lcb.lnon, Tennessee, in 1899. An irook twist of fOlie and cataclysmic social upheaval of national and world proportions would thrust Horton IntO the center of a vorteJC called the Scottsboro trials. On March 2S, t931, a Memphis <lnd Charleston R.:lllr~d freight trilin (rom Ch.manoog.l to Mcmphis had, <I S unauthorized ridcfi, Victoria Price, Ruby Bates, an unknoYo'n number of hobos and nine black \o<>uths who later would be allrested for the rape of Price alld Bates. The
young black men were Charlie Weems, agc 20; Ozie Powell, Clarence Norris, Haywood P,merSOn and Arldy Wright, all 19; Willie Roberson, (who had cantraclL'CI syphi li is and gonorrhea a year oofQre thiS Incident), 18; OICfl Momgomery (blind in his Jeft eye), 17; and Eugcne Williams and Leroy Wright, (brother to Andy Wright), both 13. Near Stevenson, Alilbama, the white ma les on Ihc fre ight train stolrtlcd the 51alion master "no told hlI1'l they had been beaten up and throvvn 0(( the train by a bunch of blacks. The nc"t SlOp, Paint Rock, over 42 mi les away, was nolified and DepulY Sheriff Ch"rlie Latham rnC!! the Iraln there wilh ten to 15 men specially deputized for the occasion. lalham and his posse searched Ihe 42-car train and fouod one white boy, two while girls (Bates and Price) arxl the nine blacks. Twenty mlnules after the troin stopped Ruby Bates lold Latham she and Price had been raped by the blacks. Three days laler tudge "11'00 E. HawkIns 0( Scottsboro recof'M!nLod a grand Jury and indictments WCrt! handed down against the nine blacks on Thesday, the 31st of March, 1931. The grand jury con路 vened Monday. the 30th, and YOled to Indiet the youths but failed to get the prop-
WU/i(ml J. Underwood received his undergraduale degree (rom the Universlly of AilliJ.Jma and Imv de8ree 'rom the Dclaware /JJw School, where he Wil S iI member of the Delaware l aw Review, tournai of Corporate l aw. ~Ie Is In private pradke in Tuscumbia, Alabama.
er legal identification of all the particip.lnts. Judtlc Hawkins Immediately alll)()inted thc enllre (seven) Scottsboro bar as defense counsel. Sb of the seven fCl>Orted conflicts, such as D.P. Wimberly who, wlth tongue In chec~ , milinI.l lned he represented Ihe A t~ bama I>OWer Company and thcv stood to gain If the boys were electrocuh.'CI.
MHo Moody, aBC 69, and Stephen Raddy, a Chattanooga real c5tatc attorney, rl!presenll,.'d the group, and the trial begiln on the 6th of 1\1)(11, 1931, with legal arguments about a change in venue and prejudice of the Jury li sts. At the trial, Moody and Roddy did not ma~e closing arguments for Clarence Norris and Charles \M:.'cms. They were convicted the 7th of April, 1931. Hay'oYOOd Patterson went on trial imnlLodiatcly a~er the Norris and \.o\\.-crnS Jury had been given ilS jury instructions. Roddy asked for a miSlrlal on Patterson because the aver3,700 onlookefi Inside ,lnd outside the courthouse g<NC oot a thu nderous roa r arxl applause when the guilty ~icl was announced in the Nonis ~nd IM!cms case. Piltterson's jury was out only 25 minutes iJefore convicting him April 9. I}owe ll , Roberson, MQntgonwry, Wright and WilUilms WIlr!! all conviclL'd the 10lh of April, and Roy Wright's trial ended in a mlslrlill because seven jurors w:Wted Ihe dealh penalty and nyc life In prison, C!VC11 though the state had argued for Roy Wright \0 receive a life sentence. Therefore, eight young men stood condemned 10 die by electrocution and one was to be n!trlcd. lhc appeali ~re tdkcn and the Unitt.>d StatM SuprenlC! Court overturned on Ineffec tl\'e defense coonsel. PoNeIl v. Alii/).lm<1, 267 U.s. 56, (1932) This was a landmark decision because for the fifit time it applied the 6th Amenoment via the 14th Amendment due process clause to the stall'S.
September ,987
â&#x20AC;˘
I
lud8â&#x201A;Ź! James E. Horton, /r" al his home, Ma cedon F.lfms, In Madison, Alabama
Judge Edward Hawkins, not wishing (0 fC try Ihe cases, granted it change In
IICnuc March 7, 1933, and Judge Edward Horton of DCC~lur, Alabama, was assigned to them, They \YOuld IX! tried in Ihc Eighth Judicial Circuil Court in
Decatur, Alabama, l-'OrlOn v.,,;)n the immediate respect of Ihe prosecution and defense counsels. Standing <M:?r she fecI tilll and armed with an unflappable nature, he manding figure.
Wil5
(I
com-
The stilte now WJ S represented by
Thomas Knight AI 34 years of agc, Knighl
w.n one of the youngest men to
hold the office of attOfncy general In
Alabama, and he had his eyes on a higher office. The nine blacks Wl!rtl r(lllreSt!nted by Samuel Liebowitz, II Brooklyn attorney
provided by the InternatiOnal Laoor Oefen se, an organiZJtion with known com-
munist sympathies. Liebowitz also was backed, reluctantly, by the NAACP.
Horton's first Order of business March 27, 1933, was to decide if the [iCle(1ive Jury system in Alabama was preJudicial. Judge Horton, at the In itia l court proceedings, called to the bench three Decalur youths iJnd strongly lectured
GENE RAL COUNSE L The Alnbama SWtc Bar now is accepting applicillions by letter with resume from qualified 10lW'\'1!r5 for Ihe I>oSition of Ger\eral Counsel. These should be addressed to Chai rman, Selection Committee, P.O. Box 671, Montgomery, Alabama 36101. This position requires an experienced lawyer with <l Strong professional background. Salary commensurilte with experience and maturity. The Alabama State Bar Is an equal opportunityemployer.
them for passing oul leaflets at the Irial which fOrC(il sted death to the defendants. Ttu.! trial W,lS iI media cxtrav<lganza with o.tlr 100 n~pcoplc In auendam:..:. The Birmingham Ne.v5. in Its March 26 edition, Slated, lo t-lort on is laking an unusually tolerant aUilude tow.ud Ihe quibbling of opposing attorneys and the busling5of newspaper men. I-lis milnner Is easy and he speaks In a slow soft ~1ce:' Horton had his office mail sp(.'<:ial press passcs 10 black reporter Bernard Young of the Norfolk Journal and Guide. Young reported in his ~paper 01 April 8, 1933, that Judge Horton g."Ml him a Wolrm handshake at the beslnnlng of trial that day, m~h to Ihe chYlous dismay of some white Morgan County oll iooke~. l'IOrton, althollgh O\ICrrullng defen~ molions to quash the jury venire lisls because of racial exclusion, opined Ihal the dd'cnse hold shown a ptima facia case of exclusion, thus making a conviction an axiomillic rC\-'ersal by Ihls finding on
295
ap~al. Judge Horlon also alla.vcd defense counsel 10 represenl evidence Ihat Victoria Price had been found guilty of adultery and fornica tion In Huntsville, Alabama, 60 days prior to Ihe alleged rape by the Scoltsboro bI¥-. The evl· dence had been kept out allhe flrsl lrial of Haywood p,lIIerson. The ludge, however; did sustain the slate's objection that Ihe jury disregard the conviction portion of tl'le testimony ;IS being Irrelevant. On April 4, 1933, ..lorton faced his first catharsis 01 the trial. Dr. R.R. Brldgl'S goM! u!'!remarkable testimony aboul moti le sperm and Ihe lIule amount of sperm In· side the women even though they had been r,lped six limes. Attorney General Knighl1hen iISh .'(I ) lorton and Liebowitz, during II rt.'(Css in (ourt, to il ilow the stilte 10 dismiss as II witness Dr. Marvin Lynch because hi s testimony would be redundant 10 Ihal of Bridges. This was agreed 10 by all parties. Lynch, after Ihe allorncys had left, asked Horton 10 lalk 10 him in priVilte. The conversa tion was held in the court· house reslroom where Lynch told Hor· ton the two women had not been rapt.>d. Lynch no\t.'d that I'M! and Bridgcs had eJI· trcme difficulty In nndlng any sperm in· side Ihe women even though they had bee!'! (aped six l imes. Horton asked the doctor to testify, bul was told Ihat It WilS impossible given Inc social climil te and community feelings at Ihis lime. HOrlon confided In an I nt~rvi(!W on April 9, 1966, with Dan T. Carter, author of the book Scoflsboro, thm he thought aboul ordering II rl'istrlaJ, but because of the conflicting t",'Sl imony gi~n by Price, 5t,1tcmcnts of Brld8cs and his personal knowledge of Ihe 12 Jurors, he (cit an ac·
quill,,1 would be Ihc best remedy, Hor10r\ furl her wished 10 prolcct lhe reputa· tlon 01 Lynch. Lynch, later in an intClvicw with u rter in October 1967, denied making those stalements to Horton. Judge Horton had kept the above ac· count privale until Carter had Inter· viCW(l(j him. Rubv Bates later testified at the trial for Ihe defendants. She completely refuted her origil1<ll testimony given at the firsl trial In HI)1. Bales, dresS«! stylishly, recan ted that she had nt.wr been at· lacked by Ihe blacks and InsIsted Ihe whole flasco was a fabrication made up bv VictorIa Price. Attorney General Knight, in healed cross-examination, tried to hilVe Bates ad· mit th<'ll she had been boughl off by Ihe liberal Nt-ow YOrk clers)' and the defense. His croSH!Xllrllln&IIOrl, In somc newspal>cr reports, completely destrayed Bates' tesUmony. Lleba,o,litz had a pJrticular style which made him an inviting largel to the loc.11 citizenry. Horton ~atedJy h.ld 10 go on
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the record and Instruct Ihe courtroom vlsllors and others that he would not loleml/! .111)' punitive aclion against Ihe fiery defense counsel and to cool the tempers of thc southern gentlemen onlookers, ..Ie Informed everyone that the court not only protected the prisoners but the defense counsel, as "VCII. One of lhe most imporlant witnesses for the defense in the trial was Dr. Edward A. Reisman, a 46-year-old Chattanooga gynecologist. Reisman lestlfled tha t six healthy men would have had to leave a large quantity of mOille sperm in a woman if they had rJpcd her in as shorl a span of time as had been admitted at trial. Reisman had no explanation as 10 why the Siale wilnt.'SS, Bridges, could only fhld a trace of sperm In Bates and Price. 111 hIs Cl(pcrt opinion, the PrIce story would h<'lye been untrue because of the lack of sperm found in her. The Irial ended April 9, 1933, with de(ense counsel alone laking OYer four and one-half hours to summarize his case. The Jury look one day 10 deliberate the case, and on Sunday, April 9, 1933, they rClUrned with a 'A!rdlct 01 guilty, wilh the penalty being droth In the electric chair. The Birminsham 1\:)5t, fi ~ days after the conviction, took a brao.e stand and demand",>d thill the conviction of Haywood Patterson be r~ Judge Hor· Ion Immt.'CIialely was faced with a de-fense motion for a IlI.W Irial. 1-11.' studied this motion and even ajlJ1tQached AI· torney General Knight abow "nolle pro5CqU!" the cases of the remaining eight. Horton also asked Knlghl to consider pardoning Patterson; all queries by the judge were refused. Horton's overtures
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The 22nd of June, 1933, proved to be an Inlerestlng day for the defense, for on this day Judge James Edward Horlon, Jr., made a decision thm shook the esl.lblishmenl of the stale. SI~ling th<ll he felt the conviction was not baslod on sufficient crt>dible evidence, Horton ordered a new Irlal. I-l is brief was over 26 pages long and d ted key testimpny of each witness and g;wc lhe Judge's analysis of each indlvidual's testimony. Horton hoped to make such a record as 10 (oresl.lU any fur· ther uials 0f1 the Sco:'lsboro nine, But the bottom line In all 26 pages althe judge's brief W.1S the unsworn·to conve~ation of Marvin lynch in the restroom of the Mor· gan Counly Courthouse. This conversa· tlon fl(M!r appeared In Horlon's 26-page brief, but lynch'S unS\','()rn t<!Slimony was corroborated by defense and prosecuT10f1 witnesses. The r(l;tction st;tTewide was eKaCI and concise, a totill sense of Oulr.lge thilt pcrfllCi'ltOO Ih!'! populace. Except (or the Birmingham Post, which sUPPOrled I-Ior· ton's decision, lile crl tldsm of HOriOn's ruling received frompage billing. lettels to the edito~ in the slate's dailies stung Horton for allowing a circus 10 take place In his courtroom. Politicians of statewide notoriety lined (IP to hCill) Ilbusc on Hor· ton and promised to do everything in their pa.yer to rE!m~ 1-IOllon from any further Scottsboro cues. Much of U.s. Senator Thomas ~Cotton TomN !-leflin's rhetoric against Horton could be at· tributed co the capitali7.allon by him of
che resentment in the stale eNer che ruling. 11 should 00 of no surpris(l thill Ala' bama Supreme Court Justice John C. An· derson ordered Horton to recuse himself from any fUrlher cases because of his bias. They Vt'I!re rea ssigned to Judge Wil· lIam Callahan In the same districi . Horton decided to run for re-election in 1934, He believed that the PL"OI)le would see his 1>oInt In rt'1Cr'Slng the Pat· terwn verdict. He WilS sadly wrong and trounced in the Democriltlc runoff elec· tion that fall. Altorney General Thomas Knight W,l$ ell,.'(tl'<l 10 lieutenant gOYer· nor, propelled IJtI the publicity or the tdal s, Haywood Pal1erson w.u tried and Cl)n· victed two more times. but C\oCntuaJly the Scottsboro boys had Ihe cases dismissed against them or Vt'I!te alloo.ved 10 plead to lesser offenses and be p.1foled for lime ",""",.
Horion v,(!nt into priv.ue practice and worked for thc Tennessee Valley AuthoriTY· Horton never a8(11n offered himself for poIiTic.)1 offi ('e although he had a dis.tinguished career rep~ing LImestone County as a st<lte reprt~i1tive and later as a M'lle senalol bt..ofore being elocted 10 his Jodgeshlp, He never held any bad feelings loward the people of his district for not re-electlng him tothe Judgeship. Horlon stilyc<! aCllve in his civic organj· tlllions and farmoo, raisinSI>urebred Aherdoon Angus urtle at his Macedon farm. Ills philosophy throughout the rest of his life was ~flil l justitia ro.lt coelum", "let Justice be done though the heil\lens may fall." •
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Bar Briefs New officers fo r association The "'abam.:l Trial L.........,ers Association re<:ently announced the selection of l. Andrew Hollis, Jr., of Hardin and Hollis, as pr('Sidenl (or 1987-88. Hollis oblilinoo a law degf\.'e in 1968
from the University of Alabama and has aulhomd numerous, published ICgill articles. Hollis Is a member of the Atabilma Slate Bar, the Amerlc;," Trial lawyers Association, Birmlnghilm Trial Lawyers Association and the f'resident's Council of th~ American TrI,,1 Lawyers Associmion, and is ccrtifled ilS 11 civil tflill adVOCillC by the Nmlorlal BClard of Trial Advocacy.
Hollis was one d scvcr' officers select· ed (or the new tem1. O1hers include larry W. Morris of Alex.lnder City as president. creel, C. Delaine Moun!..lln of "TUscaloosa as first vice-president, Lloyd Gathings. II, mBirmingh.lm as 5C(rC(ary, }ohn Higgin.
bothilm of Florence as treasurer and M. Clay Alspaugh of Birmingham as immed ia u~
past presiden!. The Alaooma Trial ~ Association cooslst.s 0( attorneys Ihl'O!Jghoullhi! stale dedicated to presenling Ihe existing ad· lo"Crs.lry system and protcctlnglhe rlghls of individuals.
Godbold selected direc10r of f«tera l Judicia l Cenler Circuit Judge! John C. Godbold ollhc United States Court of Appeal s (or the Eleventh Circuit, has been named the new dimctor of the Federal Judicial Center in Washington, Codl.lo ld'$ i:lppoin tmcnl WilS an· nouncc..'<.l l7i Chief Justice Wi lliam H. Rehnqul st, chairman of the ct!ntt!r's gO\ll!rrllng board. Godbold will sucCC!<!d A. l eo Lcvhl, who retired July 31 afler morc Ihan a dcc· ade as the center's director. Godbold, who lives In Montgomery, was appoinled Judge 0( the United States Cour1 ol Appeals for the Fifth Circui t In 1966. He seM'd itS chief judge 0( tholt cir· cuit for most of 1961, and later that year bcctlme the fifSt chief judge 0( the newlycrea tlY! Eleverllh Circuit, serving in Ihat position unlll Sep:ember 1986. 298
Prior to hiS appointment to thl' bench, Judge Godbold was in private practice In Montgomery for 16 years. Two of his for· mer law partners 31se h.'r.<e served as fed· eral judges: Judge Richard T, Rives, who served 3S a judge of the Fiflh Circuit Court of Appe31s, and later of the Eleventh Circuit Court of Appeals, (rOm 1951 Unfit his death in 1982, and Judge Tru· man M. Hobbs, who was appointed to the bench In 1980 Md curfently Is chief judge of the Middle District of Al3bama. Godbold Is 3 graduate of Auburn Unl· -..ersityand Horvard Law School. His law school career was interrupted by military scIVice during World WdT 1J in the Uni,· ed Slaies Army. In 1982, he recelvro the Auburn University Alumni Award for Achievemel'lt in Ihe 1·lumanities.
Si rot e. Permult donation provides computer lab A $45,000 gj(t from a Birmingham law firm has made possible a computer laboratory a( Cumberland 5(hool of Law; the new facili ties were o~nt!d offiCially April 16, 1987, The Sirote, Permull, McDermott, SIeplall, Frlerld, Frlt!dnlar'l, Held aocl Apol· insky CompUler L.lbo'310ry, named for itS donofS, will enilble the liM' school 10 develop a new orca of curriculum devoted to coml>Uters and the 13W; the glfl from the 7O-member I~w firm was supplemented wi th Samford funds to equip the lab, which has a total value of $70,000. Wi th 16 compu t ~r terminal s, video I>rojcctor aoo accessories, the lab is the firSl In any law school In the southeast, according to Cumberland Dean p,uham H. Wiliams. The new courses mooe possible l7i the lab will review developing law affected l7i Ihe Increasing use of COml>lJlers in s0ciety, and will help students undefStand the technical uses of the com pliler to 1mpr<we their law~rin g skills. Cumberland introduood its first related course, "Computers and the Lawt three
years ago. Cumberland professer Alex J, 80lla will be director of the computer I,~
Jo hn sto ne, Adams es tabli sh es scholarship and awards at UA Law School The Mobile law firm of Johnstone, Adams, Bailey, Gordon and HllrriS recently eStablished iI full-tuition schol3r· shi p and tWO academic awards at the University of Alabama School of Law. The Johnstone Adtlms Scholarshil> for Academic Excellence will be t!wardL>d annullil y 10 an Incoming flrst·year law stuc\en1 with an outstanding undcrgrad· uMe academic record. Sch..'ction will be made by the office of the dean of the 10lW school. The firm ,lise estilbllshed the Johnstone Adams Award (or Academic hcellence In Admlrt!hy and the Johnstone Adams Award for AcOtdemlc Excellence in Oil and Cas. These SSOO cash ifWiIrdS will be presented annullliy to grxluatlnglaw Mudcnts for the best final papers in these subject areas.
PLS certifiCation program The National Association of legal Sec· rt.'1ariL'S offers legal secretaries the oppor· tun ity to become a Professional Leg31 Secretary (PLS). The lerm Pl5 Is a desig. nation which Is a rccognized stand<.lrd of e~cellence among leg.ll secretaries, and means the legill secretary possesses at least five years' e~pt!rience as tI Icg.11 sec· retary ;lIld p;lssed a coml>rehensive IWOday e)(.1minlltlon determining thai Ihe $t.'cfllIary is qualified to do work which may be required In any size law office, The PLS eXJm Is designed to test the proficiency of legal secmlaries and the only certificallon available to legal socmtilries. Any person having fi-..e years' experience as a legal secretary and who pays the required fee may sit for the ex.amination. The two-day examination consists of SC'VCn parts: written communication skill and knowledge; ethics; legal secrelarial procedures; legal secretari31 accounling; legal terminology, tcchniq\Jes ,:md pro-
September 1987
cedures; exercise of judgment; and legal socretarlal skills. If al least IWO of the seven paru are passed, the ex.1mlnee may retake only the parts ("iled . The PLS exam is gt\.1)11 on the lasl Fri· day and Saturd;ry in $cptember and the nrst weekend of March in each yeilr, ~nd also prl'ceding Ihc NALS annual meetIng. The permar'lYlt h.'Sting . center In Alabama Is Jefferson State Junior College In Birmingham. NALS provides information rtlg<lrding guidelines and recommended study sources. For fu rther Inf~rmilllon, contact Mary 10 Dennis, PLS, ilLS Chairman (Of' the AI .... bama AsKICia tion of legal Secretaries, 12th Floor, W.ms Building, Birmingh;tm, Alabama 3520l (205) 2S2·2889.
Ilonsl, International Association of Defense COurlscl (chairman, Accident, Life and HeJhh InsurJnce Committee).
Scr'.'ec/, U.S. Navy, four years during IM>rld War II, discha~ It!utenant c0mmander, U.S.N.R.
Mcrnlwr, Executive CommillCt.', llirmi nKham Bar Association, 1986-pmsenl; chairman, Jeffer'$On County Historical Commission, 1987-present.
Served as Deputy U.S. Dislrict Anorney and specia l Assistant Attorney General, SI,lle of Alabama. Professor, Birmingham School o( Law, (l'.'Cr 20 years.
Authored articles published in Defense Counsel jouln"I, the /'ofum, for the Defense, Alab."lma and Cumberland law reviews; leclurl.!r, de seminars.
Married 10 former Una Connors; has three children: Una Connors Colem,ln; LIiUtIO lochr.'rl~ Coleman Smith, alumni director, Cumberland School of L'lw; ThomOls Coleman, Cumberl and School of law graduate.
Clark admitted 10 board Robert F. Clark, a Mobile allorney, recen tly was <ldmilled as a fellow of the American Board of Criminal Lawyers. Clark rccei~ his law degree from the University of Alabama School of Law in 1970 and was admitted to Ihe bar Ihal Same year. The American Board of Criminal lawyers Wil5 formed in 1978; requirements for fella.vship include n minimum of Sl.'VCn years' experien(e as a criminal trial or appelillte lil'N'r"Cr, as well as p<"lrt lci~ tlon in ai leasl 35 felony Jury trials or the cquivillent appeU.ue l'!Xpefience.
Bar Commisioners elec l ed New bill commissioners ......ere elected during the month of July. The following are biographica skelches and photographs of edCh incoming commissioner and a listing d incumbent comm l ~ slOrlcrs. 10th Circuit, Place 1i6 OLLIE L. 8lAN, IR., born May 22, 1931, Fort Smith, Arkilnsa s; graduated, Fort Smith lunlor Col ege, 19S1; receiYCd law dcgree from Uni~rSity of Arkansas. 19S4. PJrtrlcr, Birmingham nrm Of Spain, Gillon, Ta te, Grooms & Bian. Vice presidenl, 1983·84, Alabama Defense ~1'5 Association; member, Defense R(>S(larch Institute, Am<....lcan Coun . . ci! of life Insurance (ll'&ill sectionl, American Bar Association (litigation, Anti . . trust, Tort and InsurJnce PrJctlcC! sec· The All/bam.l Lawyer
81an
B(1.'.I/es
19th Circuit JAMES II:. 80 WlES, born OCtober 8, 1944, Tallassee, Alabama; 8r.lduatcd from Auburn University, 1966, Unl\lC!l'Sily of AlabJma School 01 law, 1969. Partner in PicOClla &< Bowles 1971·76, sole pr;lc· thioner 1977-84, partner in BoNI<.os & COflie, 1984-p~scn t . Formercaptaln, U.S. Am\y; VIClnilm vt'!1· er;,". Awarded Bronze Star and Army Commendation Medal . P.lst president, 1978, Elmore County Bar AS!oOCiation; former member, 1977, Indi. gent Defense Commln~, and UnaulhorIled Practice of law Committee, 1986. Member, AmerlCJn Bar Assocl;lIron, Alabama Stale Bar, Elmore County Bar As· sociation, Alabama Trial lawyel'5 Assodation. Married to fOrmer Joyce Perkins, TUSCJloosa; son, John Robert Bowles. 10th Ci rculi, Place ' 4 THOMAS COLEMAN, bom April 11, 1918, Birmingham, Alabama; attended Birmingham Southem College; gradu. OIled from Uni~rSity of Alilbama am:! Unl'>«Sity's School of Law. PJrtn~r, Birmingham firm of Whitmire, Coleman and Whitmire.
Coleman
C"",k
15th Clrcuil, Place 1i2 CHARLES M . CROOK, Darn July 2&. 1938, teared Unioo Springs, AlilbJma; undergr.lduJte degree from Uni..e'Sity of AlabJma, 1960; law degree from Univer· slty's School of Law, 1961. Begall practice In 1964 with Goodwyn & Smith; 1970 became Smith, B(M'm,ln, Thagard, Crook & Culpepper; 1983 merged with Balch & Bingham of Birmingha-n. Captain, U.s. AmY( Judge N!wcate General's Corps, 1962·63; received Army Commendation Medal. Former memher, bo.'lrd o( directors, Montgomery County Oar Assoclalion; Alab.1ma commissioner, 19n-prescnt, National Conference of Commissioners on Uniform Stille Laws. Married 10 fOrmer Edith Rushton John. ston; three children. 10th Circuit, Place 1i7 JULIAN MASON DAVIS, born July 30, 1935, Birmingham, Alabama; grJduale, 19S6, Talladega College, 19S9, StOlte Unl. . 'o(!rsllY of New York School of Law. Senior llartll(..'f, Slrote, Permutt, McDermoU, Slep.
"9
lan, Frlt:;md, Fril>dman, Held & AI>oUnsky; adjunct profcssor, Unl~rslty of Ala· bam<1 School of Law.
Marri(..od 10 former CCt:e FvIICr; i..1Fayclte, Alabama; three children, Amy. Gl'Offrl'Y, Mark.
Member, AlabdrTlJ Stale Bar, Birmingham Bar Assodmion (Immediate p'lst I)resident), National Bar Association, American Bar Association, National Insurance Association (paSt president).
10th Circuit, Place 'S MtCHAEll. EDWARDS, born September 10, 1942, Birmingham, .... ' .. bama; graduale, UniW!rSily d Alab.lma. 1964, University's School of Law, 1966; Mem· ber; Alaooma Law Review, 1964-66. Captilin, U.s. Army Judge Ml.OCale Gencr<ll's Corps, 1966-71.
On bo.. rd of leadership Birmingham, American Red Cross. Talladega College,
Southern Economic Council, Greater Birmingham Community Service Award, Birmingham Airport Aulhority, Downt()YJn Redevelopment Commission, The Relay I-louse, W 8 ~IM Public Radio, the SalVJtiOIl Army, AnlerlC.ln Lung Associa. tlon of North Ccnlfal Alabama, UAB Research Found3lion, Inc., UAB t'rcsidcnl'S Advisory Councll, Birmingham Hlstorl· cal Society, Protl'Clivc Industrial Insurilnce Company of AI.. bama, Inc. (EKecu· tive Committee, vice president/general cO\.lIIsclJ.
Chairman, Business Torts & .... ntitrust Sec· tion, .... Illbama Statt;! SM, 1965-66. GrieV<lnce Committee, Birrningham Bar Association, 1986. f)rilctices with B;ll,h & Bingham, BlnnIngham.
na, Austria. Past president, Mobile Sertorna Club, Mobile Cou1ty Chapl(!r Young Democrats; pa SI member, board of directors, Mobile Area Chamber of Commerce. Senior member, Engel, Walsh & Zoghby, Mobile. J Oth Circuit WILLIAM E. HEREFORD, born October 17, 1939, Birmingham, Alab.lma. Graduate, University of Alabama, 1964; Uni· ~rslty's School of Law, 1970. Partncr, l'lmeford, Blair & Holladil'f, Pel! City. Member, American Bar Association, Alabilmil Slate BM. St. Clair County Bar Assod .. llon (president 1981·M). Married to form!!r P,lula Duncan, Wo:rsh. in810n, D.C.; two children, Gibson ilnd William E., III.
Secretary, slate Democralic EKeCUli\e Commlnee (AlabJma Democratic P.1rty 1978· I. Married 10 former lune Carolyn Fox; lWO children, I(.'uen Mldeline Davis and Julian Milson Davis, III.
Edwards
[ngel
131h Circuit, place I J MYLAN B, ENGEl, SR., bolO July 14, 1923, Summerdale, Alabama. Graduate, University 01 Alabama, 19S2, and Unl'o(!(slly's School of t..'lW. 19S3. A/aoolllil Law ReviC'>.... 1952.
DlIvls
Dillard
10lh Circuil, Place 15 TIMOTHY L DI LLARD, born NO'v'(!rnber 11 . 1946, .'v1ontgomery, .... ' .. bama; graduated, UnlVl'fSity of ....' ..ooma, 1968, Cum· bcrlal\d School 01 Law, 1971. Praclices wilh Haml)(!, Dillard & Ferguson, Birm· ingham. Member, Birmingham Bar As~odation, .... Iabtama Siale 8a~ American Bar ,4,ssoclalion, American Trial Law.,ers Assocla· tion, .... Iabama Trial l..1Wyers Association (Exccutlve Commillee). 300
Served, Alilbilmil Legislature, 1961-70; elected stilte representative, 1961, to fill vac;ancy; rtHllecwd 1962. Elected, State Senate, 1966.
I-Iereford
10lh Circuit, 8t.'Sscmcr Cut-Off GEORGE M. HIGG INIIOTHAM, OOrn NQV(!mbcr 26, 1932, Birmingham, Alabama. Graduated, Blrmln8h.1rl1 Southern Collcge, 1958, University of Alabama School of lilw, 1961 . Served fou f years, South P,ldfic, U.S. Scvcnlh Flcet.
Member, Mobile CounlY Bar Association, Alilbilma Stille Bar, American aar Associalion. PreSident, Mobile Bar Association. 1982; Mobi le Bar Association Grievance Commlttcc (three years), h;. ccUlive Committee (five years).
Licensed minister; scrVLot/ on Commin~ on Substance Abose since Inception.
Served, combat infantryman, \-\Orid W.lf II, FebrUilry 1944-July 1946; awardl'd Comoot Infantryman Hadge, Bronze Star, WWII Occupation Ribbon, Good Conduct M~a l ; hooorabl ydischaril~ 1946; 1946-47, War Department civilian, Vien-
Private I)factice, Birmingham.
Mllfr1cd 10 former Jane Cu~red, Birmingham; three children and th ree grand. children .
Member, Sigma Delta Kappa, American Hat Association, American Trial Lawyers Association, Alabama TriallawycfS Association, Alabama Statc Sar. 5cplcm/)e, 1987
13th Circuit, Place U 8ROOX G. HOLMES, born November IS, 1932. GrilduaH~, University of Alabama, 1954, University's School of Law, 1960, seM!(! in U.S. Morin(' Corps. SInce 1960, prilctlced with Armbrccht, Jackson, DeMouy, Cr~, H olm(!~ & Reeves in Mobile. Served, chajrmln, Alabama State Bar Grievance Comnlltlce; previous member; luuldallnqulryCommlsslon . Pa~t presi. dent, Alabama DefenSC lawyers Associa· !lOll; fellow, American College of Trial L:r. ... yers. MarriNl to l..Jurd Claire Holmes; thrl.'e children .
dnd /'}ycholoBY Review, 1975. Since 1975, prdC!iced with Lyon§, Pipes &-
Cook, Mobile, Member, Mobile Bar Asr.ociMion, ,01.1(1 . bamil Stille BJI', AmerlCilrl 8ar Associa!Ion, Alabama law Institute. Cum!nt chillrman, stOlte bdr$edion on OU, Gas and MlIleral Law; since 19B4, served on Grievance Cornmrtloo, Mobile Bar AsS()o cialion. Served as chail'mJn, bOJrd of dirl.-'Ctors, Downtown YMCA, 1986; cu(rerllly, director, Mld-Continenl Oil 1100 Gas Association (Missiuippi.,4"laoonlJ DI ... islon); treasurer, Metropollt.lIl YMCA of Mobile; member; boord 0( dl'1'CtOrs, ~ Club of Mobile, Inc.; member, Mobl1'! Touch. down Club. Senior Bowl AssociJlion, bOolttl of trustees of Julius T. Wright School for Girls in "'oblle. MMried to fOrmer Austill Samford; two children, Mary AuShll Samforo and Mar. garet WJlsh Samford.
Member, editorial boattl. A//lbJma Trial l"wyers Journal, 1972-77, 1982·83; The AI/lbama I...1wyer, t973·76, 1982-84; House of Representatl'wfl, 1967-70; special MsiSI,mt Attorney General, 19n-79; member, Senale, 197)-75. Member, Conecuh County BM Associalion, Federill Bar Association, American BJr Association, Alaban13 Stilte Oar, Ala· bmna Trial Lawyers AssoclJtlon, Association of TrialLJwyers of America, Ameri· can Judic.llUre Society, International Society of Barristers, American Boord of Trial Ad\.1)Cacy. Member, board of dlrCdon;, Fin;t Alabama BJnk of COllccuh County, Eastern Sleep CorporJlion, Richmond , Virginia. Prlv.1te practice, Evergreen. Milfrioo to former Nancy Miller, BrewIon; two children, Dudley and Richard.
lloyd
Holmes
IOlh (Ircuil, PI"ce IJ JAMES S. LLOYD, born March 2, 1~48, Birmingham, AI,loom". Groluuilwd, 1970, University of Alabamil, 1976, Cumber· larld School of Law. Naval officer, three years, Vlelnam war, Began practice in lloyd, Ennis & lI00rd, Birmingham; metgl.>d with Clark & Scott, lJirmingham, 1984, Served, Ilreslder'lt, YlD, Birmingham Bar Association, 19B3; Execut ive committee, Birmingham BJr; 19B4·B6; presently, chairman, Ethic. Committee, Blrming. ham Bar; member, Alabilma State Bar E th ic~ Commiuee. Milrrled to former NilnCy Hudson; tWO children, Jimmy Jnd lauren, 13th Circuil, PI.c'! 11 VICTOR H. LOTT, JR., born Au8u~t IS, 1950. Mobilt', Aloib,1md. Graduilll.od, cvm 'iW<k, 1972, University of the South; 1975, University of AIJbilma School of Law; founding editor, The AlaOOm.ll...1w Th(' Alabama
1964, Auburn University, 1966, University of Alabama School of law.
L~wy(!r
I.otl
M/lllhews
Melton JJrd Circuit WILLIAM B. MATTHEWS, bam February 12 , 19)1, Memphis, Tennessee. Gradu,ued, 1952, Universi ty of Tenne$s,t.>e, 1956, V.lnderbill UrliVlmlty School of lilW. Pri ...iJle practlr::c, 1956·87, Ozark, A(abama, Served, bar commissioner, 196&-75, 19BI-84; member and chairman, state bar Grievance Commilll.'e, 1977.]9; EKecUllve Committee, 1973-74, 1981·82; Fi· n,met> ComrniUl.'c, 1984·87, Married to former Florenc'! CarroU; three children. 351h Circuit WILLIAM D. MELTON, born Pine Apple, Alaooma, june 30, 1943, Graduated,
O wen.s
6th Circuit, Plilce 112 JOim A. OWENS, born July 7, 1939, Bir· mlnglmm, reared In Gordo, AI.~bama . Grac1l1i1ted, 1961, Uniycrsity of Alllbamil; U,S. Naval Reserve, three yeJrs. Grilduated, 1967, University's School or Law; member; Farrah Order of Jurisprudence. Practiced whh Phelps, (),yens, j(~nklns, Gibson & Fowler, TuscJloosa, slnc'! grilduatlon . SerVl.'d as pre$id'!nt, TuscalooS<l Rottlry Club .lnd Tuscaloosa County Arts and Humanities Council; ...Ice presider\!, City or TuscalOOSil Solid Waste Authonty, (and ~rctary) Tuscaloosa Academy Boord of Directors. 30 1
MemUer, Amcriciln t1'H Association, Alabarrla State Bar, Tuscaloosa County Silr Association.
1966, University of Alrabar'r'ra, 1969, Un Ivcrslty's School Law. Served, 1969¡72, captain,' U.S. Air Force, Judge Advoca te General's Corps; major,. U.s, Air FQrce
Married to form er Dorothy Tl"!rry, Red 1..e\I(!1, Alaboma; "N() children, Apsilah Gc-cr Owcn~ and 1erry Elizabeth Ov.oens.
RI!~er'v1;!.
23rd Circuit, Place It2 S. DACNAl Rffi\lE, born Milrch 2S, 1947, HuntSVille, Alabama. GraduMed, 1969, University 01 Ali1b''r.ma, 1972, University's School oi lilw (president. l"w ~chool student body). Rccelved l..l .M ., 1973, New '\brk UrlVCl'Slty School of Law. Pmcliced with Cle~ry, Lee, Morris, Smith, Ev.'r.ns & Rowe since 1973. Former member, A[abam.1 Stale Bar Board B:u Examiners; editorial <lOlli Sory board, The Alabama Lawyer.
or
or
Practiced, 1972-Aprll 1987, Cal>cll, Howard, Knabe & Cobbs, Montgomery; May I, 1987, began practice w ith Haskell, Slaughter & Yovng, p<1r1ner, Montgomery office. Servcd, borard of dlrl!Clors, M on tgomery County Bar Association; president association, 1966. Member, Alabama State Bar, Th e Florida Bar.
Gr"d(ratecl, 1959, Florence Slate Universi ty, 1966, Okl(lhom(l City Ulw School. tnactiw member, Oklahoma Bar Msoclatlon; active member, AI"bllm" State Bar.
Married to former Nancy Lumpkin; three chi ldren: Shelby, Brooks, Margaret.
Practiced, Florence, Alabama, ten years; Moulton, Alabilma, nine )ll!lIrS,
361h Circuil DONALD R. WHITE, born February 19, 1933, Lauderdale Coun ty, Alabama.
Married to former \krna M . lamon, Trinity, Alabama; I'M> children, Cindy R. White, Shane l. White. â&#x20AC;˘
or
Member, boord of directors, Huntsville Public library, HuntsvlI1E' Board of ZOllIng Adtu stment, Huntsvi lle ROt<rry Club,
Incumbent Commissioners Hometown
Circuit Married to former Melissa I'NO children.
I. Holliman;
IS' 2nd
3,d 4Ih 51h 6,h 7Ih .,h 9,h 10Ih
Row, 23rd Ci rcu il , Place #1 GEORGE w. ROYER, JR" born S(;!P. lember 23, 1947, Aruba. Moved to Alab.lma age 13. Graduated, 1969, UniverSi ty of Alabamu, 1972, University'S School of Law, Served, 1972-78. Assis tant Attorney Gencrill, Stilte of Alabama. Since 1976, with Butler & Royer, Huntsville. Married to former SUS<ln Benson, Mobile; throo children. 15th Ci rcuit, Place #3 lAM ES R. SEALE, born March 6, 1944, Sclnla, Alabama. Attended Emory University, Atlanta, Georgia; graduated,
302
11th 12th 14th 15th 16th 17th 18th 20th 22nd 24th 25 th 26th 27th 28th 29th 31s\ 32nd 34th 371h 38 th 39th
Ed.....(lrr;! P. Turner, Jr. (69) Jerry L Thornton (66) Lynn Robertson Jackson (89) Archie T. RCC\'es, Jr, (68) lewis H . H:tmner (69) Walter 1'. Crown(J'ller (89) H . Wayne love (69) A, I, Coleman (901 WiI,iam D. Scruggs, Jr, (66) Francis H . !-tare, Jr. (68) Drayton N. James (88) Robert M. Hili, Jr. (90) Joe C. Cilss.ady (88) Phillip A, Laird (89) Ri chard H , Gill (89) ludgcr O. Martin {58} Ri chard S. Manley (90) Olivcr P. Hf!ad (90) W.lde 1'1. Baxley (88) W. Haro)d Albritton (90) l. E. Gosa (88) Nelson VInson (89) 80wen H . Br.:lsseU (89) Charles R. Hare, Jr. (88) lohn Earle Ch(lSOn (89) ij, Creg VVood (88) Gorman R. lones, Jr, (90) lohn David Knight (89) WiIU<lm M. Bouldin {90l Phi lli p E. M.:lms, Jr, (89) lohn F. Proctor (88) limmy E. AICX<.lnder (66)
Chiltol11 I-tayneville Clayton Selr'r'ra Roanoke Tuscaloosil (plilee no. Il Anniston Decatur FQrt P;iynt: Birmingham (place no. 1) Birmingham (place no. 8) Flor~mce
Enterp rise Jasper Montgomery (place no. 1) Gadsden Demopolis Columbiilnil [)othan Andalusia Vl!rl1on H.1r'r'rllton Phenix City Albertville Bay Minette Tal1ildegll Sheffield Cullman Russe llvlll~
Opelika SCOlIsboro Athens
September 1987
OF INTEREST IRS Reporting of Real Estate Transactions by E. u nny Crane
Jackson Thornton & Company Certified Public Accountants
Montgomery, Alabama The Internal ~nue Service flnaliy
has Issued the temporary regulations dealing with Code Section 6045-Returns of Brokers. 10 assist rcal estate
closers In complyIng wi th the new reporting re(lulremenls for form 1099·6.
The real estate requirements were added as a resul! of the Tax Reform Act of 1986.
The regulations Indicate that only real estate closi ngs occurring after December
31, 1986, will be subject to Ihe reponing requirement; however, no penalty will be assessed with resped to a transaction thilt closed before MOYt 4, 1967, If the new reporting requirements are nOf met. The regulations for 1967 closings in-
dicate 11'1011 only cenain sales or exchanges of resldCr\Ual real estate will be subJect to the reponIng requirements In thc first year. It 15 anticipated that additional types of real estate transfers; will be required to be reported In the future. The 1987 residential !'Cal estate transfers required to be reported IfWOl~ those classified as Qne-IO-four family real estate. Th is Includes any structure designed for the occul>ancy of from one to four families and arlY appurtenant fixtures, land (lnd associated structures transferred with such structure, certain condominium units and appurtenant l.'Qrnmon elements and stock In a cooperative housing corpor.ll iOn (as defined In Section 216). The regulations exempt <:ertaln types of trttnsactlons and transferors; from the reportln8 requirementS for 1987. Any transfer of real estate involving foreclosures and ttbandonmcnts of security Is CJ(effil)t, ttlon8 with 8ift5 and refinancIngs, The reporting requirements also do not apply 10 corporate transferors and trilllsferors that are governmental units. The A/abam<J lilwyer
The person responsible for making the Inform ation reports to thc IRS is the ~ f(>al estate broker.- The r'f'al estate broker Is identified as the person responsible for closi ng the transactlof'l . If a Uniform Settlement Statement prescribed under Ihe RClll Estate ScUlement Proceduf(>s Act of 1974 is used, the person listed as the settlement agent on the statement Is consldcrt.>d the closer (broker) for report ing purposes. If a Uniform Settlement Statement Is not used, then the person who prepares thc closing staten1£!n! or olher wrillen descriptioo of Ihe disposition of the gross I)roc~d s Is the real estate broker, If no closing slatellW!nt is prepared, the person rt.>sr.onsible for closing the transaction Is a transferee's or transferor's attorney who materially participates in the tr(lnsactlon, The parties, by agreement, m;ty designate a person as the real eslate broker, assuming Ihe pcoon responsible for d osing the transaClioo either Is an attorney for the traf'lsferee or transferor, 11 ti tle or escrow company or a mortgage lender. The actual flUn8 of the Informational reports to the IRS of form 1099-6 must be timely and in a form acceptable to the IRS, Magnelic media r'f'portlng is mandatory for 1967 with two eKcepl lons: fi rst, re;!1 estate brokers who reasonably expect to repon f~r than 250 trttnsoctions for th~ 1987 calendar )'Car may continue to file using paper documents, The second ~xception allO'Wing usc of paper form 1099 includes ob:alnlng a hardship wal\ler, You must prove to the IRS that the magnetic mediil filing requirements would cauS(!: an undue hardship to you or your organization, This waiver re(\uest should be flied on form 8508 with the Nationill Computer (e'lter, Maninsburg. west Virginia. There Is a transitional rule for 1987 that will allow filing on paper forms 1099 if a form 8508 filM in good f<llth indlcl"ucs thc rl'ill estate broker reasonably expects to tile fewer than 500 returns for 1987. The waiver requCSt mUSt be flied by NQ\lCmbcr 30, 1987,10 be effecti\le for 1987.
The fOrms 1099-6 are due to the transferors by January 31, 1988, alld to the IRS by February 29, 1988. The Information to be contained on the form 1099 inciudes thc name, address and tJKpayer Identincation number of thc transferor; a general description of the real eslate; the date of closing; the gross Ilroceecis with respect to the transaction; a dl.'5cription of propetty or services fCC(!ivcd, Or to be received, by the IrilOsferor In addition to caY. in the trJn ~ action; Ihe real estatc broker's name, address and taxpayer Identification number; .wd any other Informatiof'l required by the form 1099 In struction~ •
Turberville wins indigent defense award Birmingham lawyer L. OOln Turberville, Jr., recei\lCd the 1987 Clarence OOlrrQW Award in rccog!1l tion of his rcpr(!st!Otatlon of Indlg(mt cimital defendants. Established In t986 ilnd given du ring the bar's ann ual meeting. the award Is made to a winn(!r chosen by th<= Indigent Oef(!nSi: Committee from "'mons several nominees. Turberville's nomination was based on hi s record hi each of several cilpl tal cases he handled ()J('f the last two years. Although these wer£! COWl appointments, the actual cos t exceeded court reimbursemenl. Turberville obta ined twO Ilfewi thout-parole sentences In second trials, onc remand and a new trial, and one life-without-parole sentence during a first trial. A m(!mber of the bar since 1978, Turberville Is a nalive cI Monroe County, Alabama, a graduate of the Unlvt;lrsity of O(!f'lver (BA, history), Florida State UniverSity (M,S., rehabililation counseling) ~ nd Miles College School of law U.O., 1978).
303
Recent Decisions by John M . M illing. Ir., and Dilvid 8. Hyrne. Jr.
Recent Decisions of the Supreme Court of AlabamaCivil Civil
procedure . .. ru le 54(b) discussed
Precision American Cap. v. le;1$ing Service, 21 ABR 2413 (March 27, 1967)- Prechion leased some eqllipment and assigned Its ri ghts under the lease 10 Leasln8 Service Corporatioll (l SC) with recourse. LSC clefau itro, and Precision and LSC got into OJ dispute ~r the 5COj~ c:I the recourse. Precision sued LSC, and 15C cClInter· claimed for one-half the amount of the leil ~l! and sUi'd for possession of the equipment. l5C moved for partial summary judgment for the ilmount PrcclslOI\ cI~lmcd rcpresenll..>Ci the recourse ob lig~ti o n , but resef"l.-'Cd the ri ght 10 proceed later on the balance of lis countC!rclaim. The trial court granted LSC's motion (or p.lrtlal sum· mary Judgrt'lrot and cert ified the judS' ment Onal under Rule 54(h) A.R.Civ.P. Precision claimed th at the Rule S4 certification Wil S Improper since l SC received summary judgment only on a portion of iI ~ claim. The SUI)reme court agreed. The supreme court s""ed that Rule S4(b} cert ifications should be granted
304
only In exceptional cases and not be entered routinely or as a courtesy to counsel. Rule 541bJ certification is not approprll) le unless it completely disposes of I) clllim SO as 10 mnke that Judgment final. It dees not authorize entry of final judglYlem on 1h1rt of a ~ln8le claim. When ~ ptalnlj(( sues to vindicntc one leg<ll '18hl arld alleges S40Wral clements of damage, only one claim Is presented and certifi ca tion Is not proper. A judgmjmt Cil nnot be considered final as lonl! as It leaves OJ>en the que~li o n of additional dam· ilges. Not all of LSC's counterctl)im had been adjudicated, therefore, issuance of the Rule 541b) certification was erroncous.
loiln M , Milling.
0' nrm 0' Hill, Carler, Friln-
Jr., is cl member lhe
I-MI,
co, Cole & Black In MOnlgomery. He /) a sraduafc of Spring Hill Col/ege i)Od Ihe University 01 A!,l/),lma School
01 wv. Milling CCJ\lefS lhe civtl portion
of the ekeisions.
Ciyil procedure , , • seclion 6·)·2(b)(1) control s when rca l eslate involved Ex P.1fIc: WilNam C. C.1rlnon, Jr. (In Rc: William C. Cannon, If. v, The AI,l' bastcr W,1/crand Gas Boord), 21 A6R 2581 (March 27, 1967)-Petlti oncB, plaintiffs below, sought a wr;~ o( man· dJmu5 to il Jeffeoon County circuit Judge to vacate his order trilnsfcnlng the case from Jefferson Coun ty to Shelby County. Petitioners (f lleged respondents negligently caused iI sinkhole 011 their pfOpcrt ~', which dllmagt.od It, and also caused them to suffel distress and mental anguish. They also ctaimed respondents' conduct cr('n ted a nui~nce and anloun t·
Ddvid B. Byrne. /r., Is a gradu~te 01 the University of Ala· barna, where he received bOlh his unckrgr,IQUa l(> and law dcgl'f..'C1 /·/c /s a mt'mlK'r o( {it(!' Mon\80mt'ry firm o( Robison & 6elser and aM'~ lite Cfim;1ld1 portion oflhe
ekeisions.
September 19B7
t.'d to a tr~p;lSS. In ildditlon to d"mages, petitioners sougl-t InJurlCh'o'e rolie( to prevcnt further damage. All petitioners lived In Shelby County and 311 of the I~nd was In that county. Some Individual respondents resided In Jefferson County, ilnd somc foreign cor· poratlon respondents did bu$ioess in Jef· ferson County. Petitioners contended venue was controlled bv Section 6-3-7, Ala . Code 1915, where respondents claimL-d vcn~le was governed by Section 6-J-2(b}{l), Alii. Code 1975. The trial court ruled with respondents, and the SUllreme CO\Ht agreed. The supreme court noted tholt since the lawsuit related to real estate dnd some of the relief claimed was of an equitable n;l1ure, i.e., injuncllVC relief, Section 6-3-2(b)(l) controls, and Shelby County, where the limd lie~, W.lS the correct venue. SecliOl1 6-3-211»(1) pro.oidcs Ihm in suits of an cquitable nature alplnst Individu· OIls, all actions ir'r.lOlving reill estate mu~t be commenced in the county where Ihe limd lies, The supreme coort s..lld thm the filct thai a foreig~ corporation also was sut.>d did nol change venue.
Discovery . , . hospital incident report may be discoverable Eulyn II. Sims V. Knol/wood p"rk 1-I05Pllill, 21 ABR 2S40 IMMeh 27, 1987) _ Plaintiff, a pallcmt lIt the hospitill, fell from n chair in which she hill;1 been placed and fra ctured her hlp. She sued Ihe hoSpil31 for negligently allowing her to fall . A dispule arose as to whcther the nurse left the pia nlif( 310ne In Ille room when she fell. The hospital preptlred an incident report as was liS cu~tom nnd sent II 10 the ri sk manager. The 1)lalnt)(f sought discoycry of the report 3nd Ihe hospital objected on the grounds the report was "prepared in anticipation oIll1lgalion" and that Ihere was no showing of undue hardship necessary to justify production of the report. The trial (ourt sustained the hospital's obJection. The plaintiff \lPl:lCaled Ihe courl" suppression of Ihe in_ cident report. The supreme court rtMlrst'CI .
The supreme court reasoned that the hospil<lI's objection involved a two-fold an"lysls. The obji'CIlon Is not \\ICII-t"ken unless the document Is made "in ilnliclThe Alabama U"'VYCf
pallon of litlgalion" and thc document is privileged as an attorney's "WOrk product:' The supreme court noted that, If In connection with an event or accident " business ent ilY In the ordinary course of buslnl!SS (ondu(ts;ln Investig.1,lon for its own purposes, the resulting Incident report is discoo.-erable, The fact Ihal a defendant anlicipt11CS the contingency of lltig.ltlon does not aUlomaUcally qualify .In "in·house" report <IS work I)roduct. Further, the report V'ias prepared by the hosplt.ll,md contalrlt'dlnformalion from ilS employees and was not the WOrk preduci of an attorney. The fil Ct thaI an attorney oblained a copy 01 the Incident report did not render II the attorney's work product.
Domestic
relalion ~
.. ,
mol her 's unsuccess ful ptlternity suit docs not bar child's subsequent paternit y sui t under AUPA Ex p.lrtC: Erica IIlexlS Snow (In Re: Sidle of AlaOOm.:J v. [ria "':C'(/s Sno.v), 21 A8R 2870 (April 24, (967)-The child's mother rnstituted a paternity action In 1963 uncler Section 26-12·1 through 9, A/a. Coc/e 1975 IdeCraffCrlried Act), That ;Jct was repeak>d in 1984 and rcplilced by the AI.lOOma Unllorm Parentage Act Section 26-17·1 through 21, ""a. Code 1975 V\UA',J. Under the deGraffenrled Ad, the child was not authorized to file it paternity proceeding, On motion orthe state, the Irial C!)urt delermlned th.,t the child's subsequenl paternity action WilS barred by the previous action and the court dismissed Ihe complaint. The Sup~mt,! court granted certio~rI and revefS@d the coun of appeals and the trial court. The wpreme court stilled thaI the child's suit was not billred by res iudicam bcCilUSC Ihe ( hild and the Olother were not substantially identic,ll pMies with an Identity of Interost. The ( hild was not and could not hiIYC been a party 10 the previous Wit. Privity for purposes of judicial finality does not normally arise from the relationship bet'>Yl!en pilrent and child , The child's Interest in bringing suit was different from the mother's. The SUI)rcmc court held that Section 26-17·14(01), lila. Code 1975, does not bar Ihe present IWgatlon, Since an action under AUPA is a civil action and goYerned by Ihe rules of civil procedure, Ihe concern thilt the putative father may be subjected to a multiplIcity of (ilWSuits is
dlmlnlshL>d because joinder and Inter· Vl.>nlion are available to bring an the Pilr· ties before the court .
Worker's compensation ••• (!mployec barred from suing em· player'S plant managcr for f"ilure 10 oblain benefits for employee Ernc51 E. Garnet" Sf. v. /dmcs L.nvrence Neumann, 21 ABR 2790 (April 27, 1987) - Gamell sued his empl~r's plant manaHer for his alleged failure to obtain worker's cOrllpens<lTion bcncnts (or Garrlelt. The defendoU11 filL'(i II motion for summary Judgment, diliming Ihat the suit was barred by Ihe exclusivity provisions of the Workman's Compensation Act (Section 25-5-52, Ala Code 1975). The supreme court ilgreed, The supreme (OUfI noted il previous-Iy held that Ihe exclusivit)· pf(wislons of the Workman's Compensation Act ex· tended 10 the empl¥r, the WQrker's compens..ltion carrier and the (arrier's emplo-ree. The supreme court now extends the provision to the employer's empl~ for an alleged wl'Ongful failure to Sl'Cure worker's compcnSil tion benenls. The supreme court reviewed ~Idon v. Har/ford Insvrance Croup, 435 So,2d 1271 (Ala. 1983) ilnd found Ihilt It is sound law, Zoning-City of Tus/(el ee V. l..lcey overruled City 01 Fultondil/e v. Gly of B'-'m;n8hi\m, 21 ABR 2662 (April 24, t987)- Fultond;Jlc £Ind Trussville conlrl\(!n(t.>d annex.ltlon proceedings of certain properly subsequently ,mncxed by Blrmlng· ham, To il(:complish the ilnnexatlon, Ful· tondale and Trussville had to creille con· lingulty with their exisling city limits and, therefore, they annexed portions of numerous streets ,lIId highway rights-of·way. This annexation has been ca lled "COrridor" or "strip" ,mnextltion, and such an· nex.,tion was authorized In City of Tus· kegcc v. Lacey. 486 5o.2d 393 (Ala. 1965). Birmingham maintained thill this corridor or strip annexation 15 Invalid and Ihatl.a(ey should bt· OVl!rrulcd. The supreme court ilgreed th£lt the use of public road rights-of-way 10 create contiguity Is unreasonable and invalid as it malter of law and expressly (Jo..'erruled Lacey. The supreme court, hOW(M!r, did not hold that corridor or strip anrl('Xdtion Is invillid
per S9. 305
The supreme court rl'COgnized that most couns dis(3YOI mlp or corridor anneKation approved In City or Dofhan If. Dale Coumy, 324 So.2d 772 (Ala. 1975). Th(!r(!for(!, AlalJama dOl-OS not require that a substantial common boundary exi~t between the city and the annexed territory, as other states have done. H(M'eVCr, in this case and Lacey, public rood rightsof.w.fo/ ilnnl!xed v.ere used merely to create conliguity and, in affect, iWOld the requirements of a touching al some polnl. Th is was not whlll the legi 51ature inlended. Rec ent Decisions of the Supreme Court of the United States Warrantless sea rch by probation offi cer held " reasonable" within mearling of FOurth Amendmenl Grimn v. Wisconsin, Case No. 86-5324, SS U.s. tW 5156 Uune 23, 198n - Do probation officers need a court womant to search the home 0( a person on p robiltlon~ The Supreme Courl, in it fiV\l·to-fou r decision, said no. The Coun up held a Wisconsi n regulallon that al· lows probation officers to search probaIioner's hOmes without w,mants If Ihere are "reasonable grounds Hto believe the homes contain something thaI violates the terms of probation. Justice Sca lia held that lhe w(lrl(lntless search of Griffin's residence was "rcason· able" within the meaning of the Fourth Amendment bec~use it was cOrlduCtl,.>d pursuant to a regulation that Is itself a reasonable response 10 the "specIal needs" o( a prob3tion system. Justice Scalia's opinion uphold ~ lire Wisconsin search regulation because the "specia l needs" of Ihe prob.11lon syStem make the warrant requirement of thc Fourth Amendment Impracticable and justIfy rel)lacement of the probable C.1Use standard with the regulation's Hreasona· ble grounds" standard. The Coun theoriled Ihat the warrant requIrement muld interfere to an npprecll'lblC! degree with the probation system by seiling up a maglStroltc rllther than I)robatlon officer as the d(!tl!rminer of h(MI closely the probJtioner must be supervised, by making It more difficult for probation office~ to rt.>spond quickly to evidence of miscon· duct and by reducing the deterrent t.offect 306
that the possibility of expedrtlous search· es otherwise would create. Predicate requiremenls for admission of co·ccmspirator hearsay 8our/ally v. United 51<110$, Case No. 85·6725, SS U.s. lW 4962 Qune 23, 1987) - Must a court, in weighing whether to admit a statement as non· hearsay under Ft.-dcral Rules of Evidence, 801(d)(2)(E), determine i:rt' indeperrlent evidence that a conspiracy existed Md that the defendan t and the dKlarant were members of Ihe COnSI)lracyl The Supreme Coun, In a slx·to-three opinion, said no. 8e1ore admllling a co-conspirator's st;;lIement o.<er an objection that does not qualify under Rule 801(d)(2)(E), a court must be satisfied Ihat the statement actuall y falls within the definition of Ihe rule. Th ~re must be ('VIdence Ihat there W.lS a corlsplr .. cy Irwolving the dedarant and the non-offering party, and that the statement was made In the course and in funherance ot the conspiracy. Led by Chief Justice RehnqulSl, lhe Court held that when the prelimin<lry (ncl5 relevant to the r\lle arc In dispute, the offering 1)1Irty must prove then by a preponderance of Ihe evidence and nOt by some higher standard. The defendant's challenge centered on the argument thaI in determining whether a conspiracy (!XiS!!. ilnd whether the defendant was a member of II, the court mUSllook only to independent evidence - that Is, t...... idence Other than the statement sought to be admitted. In Sl.Jpport of his challenge, the def(!ndant Il;!lied upon C/asser v. Unlled SIJICS, 315 u.s. 60 (1942), in which the Supreme Coun first mentioned the SO<allcd "bootstrapping rule." Various courts o( appea l had widely adOI)ted Iht! Classer view ilnd held thaI In dctcrmlnlng lhe preli mInary facts rcleva nt to co-consplrators' out-ofCourl statements, a court may rlOt look atlhe hearsay statements th(!l'l'tsclVC!:S for their evidentiary value. in rejecting the crasser "bootstrapI)ing" theory, Chief Ju~ t ice Rehnqulsl's opinion held that: "b the extenr rhat C/IJncr meant that Courts could not look to the hearsay SlatCl1lCllIS1~lves lOr al'l't' PUlpo§e, It has clearly been superseded IYt' Rule 104(.1), Feder.!( Rullos 01 Evidence. 11 Is sulflclenl for too ..... to hold Ihat a Court In maklns a plellmlnary lactua( dele..
mlnadoo under Rule 8Otid)(2J(E), may t'X;Imine the h!!arwy statements §OUsill 10 be itdmirtcd .. . . t\c(ordlng(y, we hold that rhe CQIlfl(lnt.ltlon Clause doos not require iI Coun to embark on an Independent Inquiry Into the reBa· bility of stJtcmenl1that Siliisfy thm requirements of Rule 8OlidX2}(EI." Mail fraud statute covers onl y property c rimes-severe limitation to governmenl prosecut ing political corruption cases McNall), v. United Suites, C.ue No, 86-234,55 u.s. lW 1202 Uune 24, 1987) -Docs Section 1341 of the Federal Mail Fraud Statute prohibit schemes to defraud citizens of their Intangible tlght5 to honest and impartial governmentl The Supreme Court, in a seven·lo-tm decl· slon, said no. The Federal Mall Fraud Statute, 18 U.S.C. 1341, protects only rights In money and property, not intangibles such as the righ t ot the citizenry to good ~mment. This decision wipes out a theory of mall .md wire fraud thaI has been widely used by prosecu tors against state and local government officials, and also <lgain!t prlvilte parties. The statull1, 18 U.s.C. 1341, prohibited usc 01 the mall to execute "any scheme or anlfice to defraud or br obtaining money or property by means o( (alse or fraudulent pretenses, representations or promises:' The federal courU of appe<ll had uniformly Interpreted "any scheme or Mtifice to defr<lud" 10 include a scheme to defraud citizens of Iheir Inlangible rights to honL'St and impanial government. led by Justice White, t'le Court reversed the mall fr<lud conv:ctions o( the defendant whl) p.1niciI1..1tl.-rl in a scheme in which a Slale officer sdC(too an In· su rance agent to provide workmen's comperlsatlon insur;mce for the state on condition thaI the agent share Its com· mission with other named Insurance agencies, one in which the state officer had an ownership intereSt. There WilS no charge th(1t Ihe Slale waS defrauded of any moncy or property or would h<lVC l)<lld a low-er prer))lul'l't In Ihe absence of the alleged scheme. Accordingly, the new rule limits the scope 01 11341 to the protection o( money or property rights and does not extend to the intangible right of ci tll!:ens to good gOYernmCnI. Seplember 1987
Sentencing guidelines trigger ex post fd cto considerations Miller II. Florida, Case No. 86-5344, 107 S.Ct. 2453 (June 15, 196n-Does the Ill)plicllt/()n of iI revised scntencingguidelines law to a convict(.'<i defendant. whose crime1 oc<:urred before the law's effective date, violate the (IX post facIO c!iluse of ankle 1 of the Constitution? A unanimous Svpreme Court s,11d yes. Justice O·Connor. writing for the court, hcld that the rel.'lS(.'(! guidelines "direct· Iy and adversel)" affected tilt:! sentence the defendant had received. The revised guidelines resul:cd In the Imposl.ion of more onerous punishment than the law In effect at the time the crimes ......erc ac· tually committed. The COlll1 rec;:ogni7.t.'(! th,lt no ex post faCIO violation occurs If the change in the law Is merely I>roccdurlll and does not Increa se punishment. HOW(.wr, Justice O'Connor added that Ihe change at Issue, guideline sentence ranges, appears to have little about il ihilt coold be deemed procedUr<1J. Having decided the ca'te, Justice O'Connor ......ent further and held that even If the revised gulddine 1:1W did not "tcchnlcally Increasc the punishment" ilnnelfed to the defendant's crime, It foreclosed his iib lily to challenge the imposition of a sentence looger than his presumptive scn!(~nce guidclines under the old law. Therefore, the petitioner was substantially disadv:rntagl'Cl by the retro-spcctlve application of thl! fl)ViSl>d guidelines to his crltl1C. Hypnotical ly refreshed teslimonyright to present defense Rock v. Arkansas, Casc No. 86·130, 55 U.S. LW 4925 Uune 22, 1987)- Does the Arka nsas rllie lJfohibUlng the admission o( hypnotically refreshed testimony by a criminal defendant violate 1lcr constltu· tional right 10 t~tify in her own behalf? The Coort, In a fi~to.loor dlOCisioo, said ,"",.
Rock was chargcd with manslaughter for shooting her husband. In order to refresh her memory as to the precise det.ll1s of the shooting, she twice under· 'NI!ntllYl)Oosis bya tr<1ined neuropsychol. oglst. ThCSt! sessions 'NI!re tape-recorded. After the hypnosi\ Rock remembered details IndlC,lIlng thaI her gun was defec· tlve and had misfired, which was corroThe Alnbama Lawyer
bor<1ted by an expert witness' testimony. HOW<:\Ier, the Arkansas Irial court ruled that no hypnotically refreshed testimony could be admlned and IImitl'(l Rock's testimony to a reiteration of her state· ments to the doctor prior to hypnOSis as reported in the doctor's not~ The Arkansas Supreme Court affirmed her convic· tion and ruled that the limitations on her testimony did not violale her constitu· tlonal rlghllo t~tify In her own behillf, under the theory that a criminal defendant's hYI>noUcally refreshed !Cstimony is Inadmissible per se, because II Is unreliable. Led by Justice BliCkmun, the COUrt s,1id a stOlte'SlegitimalC interest in barring unreliable evidence does 110t exlend 10 pcr se exclusions ",.. t may be reliable in 1lI1 Individual cast!. The Supreme Court overturned the Arkansas rule Clnd also said i! was nOI I)rep.1rcd to endorse, without qU<llifications, the use of hypnosis as an investigative tool. The Court reasoned that crimif\ill defendants haYe a IlghllO testify in their ONn behalf under the due process clau"{! of the Fourteenth Atnendtnerlt, the compulsory process clJUSC of the Sixth Amendment and the Fifth Amendmen t's privilege against self·lncriminJtion. Although the right 10 present relevant testif'lOfly is not without limitation, the Supreme Court held that
the reslrictions placed 0f1 a defendan(s constitutional right to testify by a state's evidentiary rule may not be arbitl7lry Qr dlsproportlonale 10 the purposes they are desi8ned to SCI""'v'C. Specifical ly, the Court held that Arkansas' per st' rule excluding all hypnotic.111y refre$ht.'d testimony in· fringes Impermi ssably on a criminal defendant's right to testify In his or her awn behalf. Right 10 conflict·' ree counsel BUfg!)r v. Kemp, Case No. 86·5375. U.S. UUrle 25, 1987J-Was a convicted Georgia murderer denied a fair tflJI because his law~r's partner rCI)resented a ccxlefendant1 The COOlt, In a close fiveto-four decision. SOlid 00. Justice Stcvcns. writing for the majori. ty, said that having law partners rcp~erl1 c(>(lefendants is not a pcr sc violation of the constitutional guarantee of effective assistance of counsel. The Supreme Court also rejected the argument that Burger WJ5 entitled to a new sentencln8 trlal because hisl;rwyer failed to present mitigating evidence about Burger's \mhappy and unstable childhood. Justices Blackmun and PQ\.o.IeU wrote separJtC dissents, which were joined by Justices Brennan and Marshall. •
1987 ALABAMA STATE BAR DIRECTORIES $15.00 Call 269·1515 or Write: P.O. Box 4156 Montgomery. AL 36101
307
Young Lawyers' Section Young lawyers' Section convention activities t the Alabama Stille Bar An-
A
retary. James H. Anderson; and trea surer, W . Percy Badham, III.
again cO-Sl)Onsored the annual semi-
Yo u ng Lawyers serve on stal e bar commiUees Alabamil Stilte Bar President Ben H,mis hilS I;:onllnued the traditi on of requesting that young lilwyers serve on the mOSt important stilte bar CommIUe<!s. Those pers()ns scl£!C ted by him will serve as a very Importallt link between the Yl S Jnd the stOlle bar and, in effect, will be represent ing the YI.S on the Vilriou s I;:ommittees. DurIngthe coming year, those representatives will report to t"e YI.S Ext.'(utive Committe<! on the activiti es of their stOlle bar committees, The following appoil\llllel'lts were l'r1ade by Bel'l HJrri s for the coming year: Alternative Methods of Dispute Resoluti on-Celia Collins; Access 10 l egal $ervices-Ril;:k Kuykendall; lawyer Advertising ilnd Sollcl latlon-T~rry M CElhMY; Bieimtennlal of the U.S. Cons titution· Charlie Mixon; Bar Di rectory-Rebecca Shows; Correctional Institution s Jnd Procedure:t-Ron Forehand; CW· :tenship Edul;:atiol'l-Rlchard Fikes; Future of the Profession·Wiltren l aird; Ethics EduC<1liQn-$t(:ve Rowe; Proposed Judicial Building.J~mes AnderSOn; Law Day-Rebl..'CciI Shows; local Bar Activities and Services-Tom II~f lin; I.eglslative liaison-Jim Sasser; In· dig!!nt Defense-John PI(mk; Interest on l awyers' Trus t Accounts·l.awa
nual Meeting in Mobile, the
YOurlS l .. wy~rs' Secllon concluded a bu s~' bar year. The Yl S once nar entitled, "Update '87: Recent Develol>ments ifllhc Law:' The sessions
were well-.;luentJed, .. no illl spe"kcrs did an outstandin8 job. The credit for th is prE!SE!llIa t on goes to StevE! Rowe, YLS elf chailman, and Mary Lyn Pike of the sta te bar. Thursday night, following the gen-
e r,l l membership reception, the YLS, in conju nction w ith the Mobile YL S, ~ ponsored an evening of music and socia l acti vity abo:.rd thc U.S.S, Ala-
bama. The long-awaited rerum to the
battleship wa ~ highlighted by the per· formance of "PcrfC(t Image." The evening wa s a huge success, drawing large croWf), <lnd served 10 get Ille weekend meeting off to a rOil ring start. A mu<:h-dC!servec\ nOte of appreciation shoul d be expressed to Duane Wilson and Donald Par tri d ge of th e Mobi le YLS ,md Sid Jackson of Ihe Alaba ma Slate Bar YL5 for their ef· fort~ ilrrilnging thi s event. Thi s aUrac· tion ha~ betome iI highlight of the st;lIe bar ;u1!1ual ml..'Cting, and every· one Is looking fOrwi'lrd to next year's p.ltly In Birmingham. Thursday afternoon, the YlS held Its annual bu siness meeting. The followIng were eleele<! fo r the coming yea r: presidem, Charles R. Mixon, Jr.; pre<;Ident-elect, N. Gunter Guy, )f.; secil
308
Charles R. Mixon VlS
President
Crum; ProfesslonOlI Economcs-Terry M cElheny; lawyer Public RelationsP~rCy B(ldham; PrePilid legal Services-Pat Harris; Unauthorllt.'CI Practi ce of Law-Amy Slayden. Exec utive Committee appoj nl~ In assuming the role as YlS president, I have had the opportunity to tll)poinl an executive comminee to CJrry ou t the lIctiv1!ies of Ihe section. These mcmbel'$ periorm the reJI work of the Y1.5. Below are listed Ihe names, ileldres~s and telephont';! numbers of the various Execu tive Commlnee chairpcrsol'lS. After !cvll'Wlng the list, 1urgl! you to cOnlact the chairperson of Jny committee on whi ch you wi sh to wo rk ; we ;Ire most interested in in· volving more young lawyels in Ihe work of your seCtion. I know you will nnd tha t involvement in YlS adivities Is it very rewarding experience. Mr. Robert R. Baugh CADDELL & SHANKS Post Office Box 1727 Decatur, AL 35602 353-6401 Grants
Sepwmbe, 1987
( \
Mr. D. Taylor Flowen; LEWIS, BRACKIN & FLOWERS Post OWce BOl< 1165 Dothan, AL 36302 792-5157 Local Bar Li .. isgn·South Mr. R. Preston Bolt, Jr. HAND, ARENDALL, BEDSOLE, GREAVES & JOHNSTON Post Office Box 123 Mobile, AL 36601 432-5511 AnnUJI Seminar on the Gulf, Arrangements Mr. D. PJtrick Harris HARRIS & HARRIS, I~A. 200 South Lawrence Street Montgomery, AL 36104 265·0251 Child Advocacy Ms. Llura Crum HILL, HILL, CARTER, FRANCO, COLE & BLACK Post Office BOl< 116 Montgomery, AL 36195 834-7600 Bar Admi ssions Ceremony Mr. H. Thomas Heflin HARE, WYNN, NEWELL & NEWTON 700 City FederJI Bldg. Birmingham, AL 35203 32B·5330 loc.. 1 8ar lialso.... North Mr. Sidney W. Jackson, Itl Post Office 80l< 894 Mobile, AL 36601 433·6699 Annual Seminar on the Gulf, Speaker and Program Mr. JamCS P. Rea HOGAN, SMITH, ALSPAUGH, SAMPI.ES & PRATI 10th Floor, City FederJI Bldg. Birmingham, AL 3S203 324-5635 Alternate Disputc Resolution
The Alabama Lawyer
Mr. Frederick T. Kuykendall, III COOPER, MITCH & CRAWFORD Suite 201, 409 21st Street Birmingham, AL 35203 32B·9576 A8NVLS liaison Task Force on Legal -\sslstance to Nonprofils and Artists Mr. Stephl:!n A. R(.I'M! LANGE, SIMPSON, ROBI NSON & SOMERVILLE 1700 First Alabama Bank Bldg. 8lrmlnghJm, AL 35203 250-5000
e Lf Mr. G. WlfrI~n laird Po st Office Box 1493 Jasper, AL 35512 221-4383 Issues
Mr. James T. Sasser VVOOD & PARNELL, P.A. 641 South lawrence Street l'ost Office BOl( '1 169 Montgomery, AL 36103 832-4202 Senior Bar Mmini str~tlve liaison Mr. J. Terrcll McElheny DOMINICK, FlETc;:HER, YEILDING, WOOD & LLOYD Post omcc Box 1387 Birmi ngham, AL 35201 939.0033 Meeting Arrangements Mr. Stephen W. Shaw REDDEN, MILLS &, CLARK 940 First Alabama Bank Bldg. Birmingham, AL 35203 322·0457
low_'
Mr. !<ellh NOrman IJALCH &, BINGHAM Post Office Box 78 MOntgomery, AL 36101 834·6500 Youth L.eglslillurc Judicial Program Ms. Rebecca Sh(lwS
KINDERCARE, INC.
2400 Presidents Drive l\lst Office Box 215 1 Montgomery, AL 36197 277-5090 Publica tions Mr. John Plunk ALEXANDER, CORDER Post Office Box 809 Athen s, Al 35611 232-1 130 Bylaws
&,
PLUNK
Ms. Amy Slayden 407 Franklin Street, Suite Two Huntsllille, Al 35801 533·7178 Constitution Bicentennial Mr. Duane A. Wilson CQ\I.E, HELMSING, LYONS & SIMS PoS' Omce Box 2767 Mobile, AL 36652 Disaster Leg.11 Assistance Outlook The YLS Is looking fomMd to a vcr)' exciting And busy ~ar.ln addition to the scvcral CLE programs presented by our Sf..'(:tion, the bar admissions ceremonies and our honored Youth legislAture aocl Judicial Program, we will continue the celebratiOn of the bicentennial of our Constitution, examine the possible In· stitutlon of legal assiS\;Jncc pro~rJm s for non·pronts and arlists, as well as Increasing our eml>hasls In the am1 of child ad· vocacy. We also plan to continue devel· opment of local young I ~rs' sections and look fOlWard to working with young lawyers throughou t the state. Again, I urge you to dcvote some of your lI.ll uablc time to service to the! profession. If you fl!Cl you c.. n do so, please contact me Or any of the other offlcer~ or Exe<:uti\le Commilloo rrembers. Finally, I add a WOld of th~nk5 to CI"ire 6Iack, our immedi,l1e past president. She did an outst.. nding job in leading Our section during the past year, and Clleryone who was In-.<llved wilh YLS extends congratuJutions and thanks 10 her for her service. We look forward 10 Claire's con. tlnut,'(! assistance and adllice during the upcoming year. •
30.
legislative Wrap-up by Robert l. M cCurley, Jr.
legislature adjourns The Alabama legislature adjourned sine die Monday, August J, 1967, ;lfter completing what Is considered by many its most produt:tive regular ~csslon In many years. To!! reform (;aplivarcd the legislature during the flrst third of tho session; the second W.lS as usual, while the final third was embroiled in senate filibu sters, first on seat belts and finally oo.'Cr local funding of education, both of which
failed.
Although Inc legislature has only J few IlIWyers, two of them, Sen;Jlor RYi'1l deGrarrenried, Jr., and Representative Jim Campbell, distinguished thcmsclves as president pro lem of their respectiYC houses.
Institute bills enacted Alal).1m,l Uniform Cuardianship & Protective Proceed-
Ings Act- Act No 87·590 This act revises tile gUOlrdianshlp law by dellncatlnglhe powers, dUlles ilnd appointment of a "guJrdlan" of the pc~ and a "conservator" of the estate. This act beC<lmes effecti~ January I, 1988, and WJ5 spon-
sored 17,0 Rcprescntati\(,'S Mike 8ox, jim Canmbell, Beth Marieui', BiU Slaughter arid Demetrius Newton, and Senator Ryan deGraffenried, Jr. Det.o.ds in Liw of Foreclosure-Senale Bill 141 This sets forlh the follow ing; (a) the transfer rights of mortgagors; (8) no effect on the mortgagee's Hen which he abo could foreclose; te) no right of redemption; (d) no merger of the mortgagors arid mortg.lgees rights; and (e) no ('((ecI on Ihe rights of persons other than mortg.1g0rs. This act is effective Imml'diawly (lnd W,IS sponsored by Senotor Rick Manley and RCI)r(!scnlallvc Jim Cllmpbell. Trade Secrets-Senate 8i11 83 This ad defines tfade secrets ilnd describes the acts which conSlllute misuse. II further pl'()\lldes remedies for the protection of the !lade secrets. This act is effective immediately ,md was sponsored by Senator Jim Smith and Representative SIeve Hettinger.
I.<Iwyer, July 1987, page 237). Three other bills ~ssed Ihe legislature which limltoo liability, Act 87-391 es-ablishLo.d the ...mue (or all civil aclions (or damages for personallnjury, death or property dllmage filed against a county or municll>.'llity to be in the county in whl c;: h thC ad occurred. Other bills limited liability ag.limtl.'tiuciltional eml>IO'y'CCS, the board 0( podlmry and board members of volunteer organizations. Acts 67.393, 87·588 and 5oB. 233, respectively Criminal law-Ahhough thc criminal code enumcr"'tes offenses genetally, each yeilr various groups reek to hiJ\.1! particular ( r1mes specifically enumerilted. This year the spe(ific crimes of dwitable fraud (AcI 87"()()5), timber theft L>quipl1'l(!lll condemnaTion act (S.B. 203), motor vehicle assault (S.B. 212) and shining car lights on rcal property (A£t 87·575) were passed by Ihc legislature. Sever.ll bills dealing with drugs have made their WJo( into law. The most llotl.'WOrthy r1'lO\!l!d the penalties for violating Ihe drug laws from Title 20 Into the criminal code (Act 87·603). Additionally, bills were passed increasing punishment for the sale of drugs on school grounds (Act 87·610), conspiracy to deal In drugs (Act 87-612) ilnd penalties for counterfeit drugs (Act 87-603) and drug trafficking (5.8. 75). Section 15-5-801 the code was amended to aiiOtY for nighto time search warrants In cases where the property to be seiZed includes a conlrollL>d Substance (Act 87-(11). The
.x.
Robert L McCurley. 1$ the d"tK:tor 01 IhIt AIiIb8me L.8w InslrlUle al /he UnlYMiry 01
Alaoama He fI9C8IV6(I hIS tN1d6rgradu"G and /oN d&gtoos 'rom /he Unll'8fsi!y.
Other bills of interest Tort Refornl-Thls Is in addition to the ten bills that originally were ~ part of the tort reform I)llckase passed early In the session and signed June 11, 1987, (see Alabama
310
SCplcmber 1987
Opinions of the General Counsel by William H. Morrow, Jr.
(This opinion origln,llly i1ppeared In the September 1986 edir/on of ,lie lawyer, but because of so mllny inquiries regard. Ins Inc usc of .. dlsclairncr. the seneral coun$el felt II reprint would be heJpful.)
QUESTION, " Is the d iscl~imer conlaint.'<I in Temporary 2·101(E), namely, ' No repl'e$entatlon is made aboullhe qUOility of Ihe legal services 10 be performed or the e"pertise of the lawyer Ptl'-
formIng such services' required in all attornt.'Y advertiseme nts Of only In Ihose describ ing a (ert.lin spcc:iric 'q al service or cettain specific lcgal servlcesl " ANSWER: The disclaimer Is required only in attorney advertisements describing a certain specific Icgal service or certain specific
legal services.
DISCUSSION: Prior to OclOber 25, 1985, Disciplinary Rule 2-102(A)(2)
prO'olldcd: N(A) A lawyer or law nrrn shilll not use professional cards, professional announcement cards, office signs, lellerheads, tclephone dlf'C(;1ory listings, law lists, leg.11 dircctOly liSlings, similar professio""ll ootices or devices or ncwspa)X!rs, cxceptthat the follOWing may be used If they arc In dignified form:
(2) A brief profcssiooal announcement card staling (I) new or 12) changed assoclatio n~ or IJI {lddresses, (4) change of firm nilme, (5) or similar maners, pertainin g to the professional oIftce of a lawyer Of law firm, which may be malll.'tf to lawyers, clients, former clien ts, personal friends, and rela tiYCs. It shall not slate blogr,lphical data except to the extent reasonably necC5§ary to identify the lawyer or to explain the change in his association, bul it may slate the Immediate past position of th e lawyer. It may gl\.'e [he name~ and datl!$ of predecessor firms in a continuing line of Socce5slon. 11 shall not slilte the oalUf(! of [he pr.lclice cxc~))t as permined under OR 2·106:' (p:mmthetlcal numbers added) Prior to January 26, 1963, Disciplinary Rule 2-1021A}(7)(f) pr()lld,-,d: "No ad~rtl~m(!nt §hall be Iwblhhl!d unlen II contains, In legible prll\l, the following la!lguJgu: "No repre§cnt~ t loo I~ made aboot the quality 0( legoll seNk~ to be pcrformOO or the expcnise 01 the iWNyer perform ing w,h SCfViI:;C!S.... On January 26, 1983, Disciplinary Rul e 2-101(A)(7)(f) w,)s amended [0 provide:
The A/sbam,l Lawyer
...
"(7)'" (ij bC~plln an adycnlS(:menl coot.linlng only thai information pclmilled by DR 2-102(A)(2) announcing the Ionnation Of changc of !>'inncDhip or anoclatloll or change In lOCI!'
tiOn of the /lttorney's office, no adycnlsemcnt shall be published unlcs~ it contains In Icglble print, the following language: 'No representation is made about lhe quality 0( the 1cs.11 seNices to be pcrlOl'foc'd Of the (!l(1>cnlse 01 the I~r perfOlmlng such servlccs.''' On October 25, 1985, the Supt'CrrlC Coun eX Alabama fl..oscinded Disciplinary Rules 2-101 through 2-106 and adopted T(.'nlporary Disciplina ry Rules 2-101 through 2-106. Tcmporilry DR 2·101 In JX!rtlncnt PMts provides:
...
'\4, lawyer shllil not make or cau<;c to be madll a false or mlslcadlng communication about (1) the lawyi:r Of 121 the lawyer's !tCNices." (emphasis and parenthetic.. 1 numbeD
added)
Prior to Jilnuary 6, 1986, Temporary DR 2-102(f) provided: "Any lawyer who ildYCtllses concemlnlllcgal r.eNices Shilll ((Imply wlth the follOWing: (EI No conlmunl(,Jtlon COI1Ct!mlng a I~, seNices shall be published or bro.adcast unless il contains lhe IollowIng languagll as ;m Inlcsral and prominent !>'in of the present;uloo: 'No repl'CS(.'nt~ t lon Is n~1dc about thequaU. ty of the (eg.ll 5Crylce~ to be I>criormcd Of the expertise 01 the i;Jl.'o)l!f pcriormlng ~uch seNkes.'" (emph.'si~ added)
On January 6, 1966. the Supreme Coun of Alab."Ima amend· ed Teml)OrJry Discipl1n<lry Rule 2-I02(El to read as follQV.tS: "No comnlunlcatlon concerning a lawyer's scNlces 5hall be pubUihl!d 01' bro.:lOC.1S1 unless it contains In l<'Sible and/or audible IImgua8(! the following: 'No I1!pf1lSCnt.:ltlon Is made about lite (tuality 0( the legal ~Nlcl!S 10 be pl.'rlormed or tho e~pcnlStl of the lawyer performing such seNlccs.'" (emphasis addl-d) The case of Mezrano v. ~Iaooma SLue Bar, 434 So. 2d 732 (1983) Involved a challenge to the consti tutionalty of DR 2·I02(A)(7)(f) tiS it existed subsc(jucnt to Jatluary 26, 1983. The court hcld the dlsclalmcr requirement Is constitutional. The court discussed the C.1Ses or BMe5 v. Sute Bar o( Arizona, 433 U.s. 350 and the casc 01 In the MauerofR.MJ" 455 U.S. 191. Considering the disclaimer, the court ob-
served: ''The alll)(!l!ant l/lWWt In R.MJ. hlld been found SlIlIty 01 1)fl1Ylsions <i the Missouri Canons of Professional Rcsponslblllty, vlQI~t inll-"!lllCrnl ad1,(!f1I~ln8
311
Wrap-Up (Continued from page 310)
penally fOf second degree
filp4!
was In-
creased (Act 87·607). Tne liability of a spouse's signing jointly on an Income t.1X return was limited by Senate Bill 426. Family I.;Iw-ParclllS na.v are required 10 give consent before their daughte, can haw an a!>onion (Act 87·286). Section 12-15-65 has been ilmen(/(!d 10 altOYo' an oul-of.<;our, slatemC!nI, made by a ch ild under thc age of 12 describing Ihe acts of sc>cutll conduc t performed on thc
child, to be admissible in dependency heatlngs (Act 87·j9n, Bus lncss-Consj ~tent wi th the Interstate
Banking Ad which became effecli\.IC this year, Ihe Alilban'l:! Regional Reciprocal
Savings InSlituliorlS Act (Act 87-152) was
p.lsscd to allow Inlerstate t1cquisil ions by S<l\Iings aJ\d loan associations. Central fil· Ing of UCC st:l1cmenlS for farm products was eslabllshe<l (Act 87-410) 10 pfOYide lhlll central filing will be with th e $OC(Ctary of state's office. Transporl.ltion-The spct.'d limit was raised on rural interstate highways to 65 mph (Act 67-408). The Department of Public 5.."Ifety wa5 given the illllhority 10
Opinions l(onllnu\.'(1 from page 311) Inctudlng a requ rcmcnt that 1.'lWyer advertlsement~ Include a specilled disclaimer of ~ertillca t lOll of experti§.(! following il'IY 1I,'lng spt.'cil1c areas of 1Mattke. Although no cllolllcnRC W<i' nlade to the con>litullooatJty of the disctailllCr requirement, the Court did note that the BiI'C1 decision sU8W!StC!d the use 01 dl!iCl~imer requiremenTS to protect the public from misleading hlW~r ad~rtISUlg. The Coun noted: 'Evcn as 10 price advertiSing Ihe /fJatesJ Cou" IUggesll'd thm somc reguiatioo wOuld be permissible, For ClUIm,lle, ... the bar could require dlKlalmers or elCplanatlons to aYOld /.lIse hopt.'S , , , 'Id., 455 U.s. at 200 102 S.(/, III 939, 71 LEd. 2d oil 72, n. II: emphasis addNl) In the case of tvan and Blalock v. Alabama State Bar, 451 So. 2d 1367 th£! couri W,lScalled upon to rule upon the con~t ltutlonality fA DR 2·102(A)(7)(f) prior 10 Its amcndment on January 26. 1983, (the amendmen1 of January 26, 1983, made no substantive change as to the precise Issue In either Meuano or Lyon
or
and Blalock),
312
set penalties for the transportation of hazardous waSIe by rcgulillion (Act 87-6(0). A change also was made 10 the perfecllon of it cerlific,lte of thle of nlotor vehicles to exlt'nd [he flUng dille from len days to 30 days (Act 37-412).
Taxation-Homestead e)(cmptions (or
persons
~r
65 were C)(panded
(Act
87-589), while food stamp pUr(hases 'Nere made exempt from sales tax law (Act 87-580), Two bills concerning the collection of sales tax and the payment of these laxes COUeclt,'<l to Ihe Slate of Alobama were passed on th e last day (S.B. 396 and S.B. 397). Alaooma income lax law was changed 10 mirror the federallilW on deferred Inrome lax plans (Ao 87·622). The person re-recordingll mortgage to correct errors no longer has to pay Ihe ta x on Ihe mortgage 11 wcond tlmc (S.B. 42), There 'Nere increases in circuit and dlwict court costs which are earmarked for the court system. The basic docket fee for district court was increased by $21 while the docket fee for cases in circuit court was Increased by $40, with an additional increa se of S3S when there was a Jury demand, There vvere num~rous local bil ls
In Lyon and Blalock the court again di$Cusscd 8.lfCs v. Swe BM of Arizona, suprJ, and In the MiJtw of R.M./., supra. The court also quoleci fmm the case of Centra l I-Iudson Cas v. Public Service Commission o( New York, 447 U.S. 557 as follows:
-..
"1b aMY!\'r that qut....llon, 'Ml tum lothe test which WilS forrnut,ued In Cenlfill I-Iudwn G.u ... f\jblif: Service Commls)1011 o( New 'lbfk " ~ 7 U.s, 557, 566, 100 S.C!. 230, 2351 65 Ltd, 2d 341 (1980) quotOO In In til{! MIJII~rol H..MJ.. 455 U.s, at 20).()4, tCl2 SO. aI937·)8: 'In commercial ~pt.'C(;h ca~, then, a (our-p;lrt analysis has developed. IV the out~t, ~ mUSI determine whether the e:preslion Is proIt(ltd by the First Amendm~t , For (am. merclal ~pccCh to come within Ihat proYlslon, It al ICMI must concern lawful activity and not be mislead. Ing. Next, wu a~k ~hether the asserted 8<J'ICmmcnut tnterestls sub~t.lntiaL If boIh In(JJlrlC1 yield p0sitive anSWCfS, WI! must determine whelher the n"8utllllQll dlA!(;[ly ad· V.lnc~ 'he g(M!rnO'(!ntat IrMe~ as<;Crted, and whether it is n.oI more
Pilssed. Attorneys may wi.h to consult with th('ir local prob."Ite judge for a review of the local bills ~ ffccting their particular county,
Cod. The legislature is not expected to return for a special session. The next regular session will convene In February
1988. The Alabama l..lw Insti tute and legislatlw Reference Service arc assisting the Lcglsl1l1i'.1.l Council in the rebidding of the Co<ic of Altlbama, It is not expected thai there will be a charlgc In the formal of the code so as to necessitate the im· mediate repurchase of a new set. As we study proposals, any sugge>lions any bar members have would be appreciated. Institute tl nnuaf meeting The annual meeting of Ihe Alabama law Institute was held July 16, 1987, In Mobile during the state b."lr meeting. 0(· ficers ell.'Cted .....ere President Oakley Mchan, Vice president Jim Campbell and Secretary Bob MCCurley, Elected to the exccutl'.1.l committee \.\ere Chief Justice C. C, Torbert, Senator Ryan dC!Craf· (enrled, Senmor Rick Manley, George Maynard and Yetta Samro'!!. • exrenslve lnan is nece5SiWY to serve th.ll Interest,'" In ruling that the discl,llmer provision is constitutional the court observed: " , . , It Is reasonable to usumc Ih"t readers of an ad~lsenlent, such as rhe ()OI! P~'fltly before us, might beUcYC thatlhe il\lOrney Is a specialist or hilS gre,lIer ClCpertise in pcnormlns lhe services iKlvcnl!oCd tholn Attorneys who do nOi ad~nise, Accordingly, ~ upheld thm disclaimer rllQUlremen! in Melrano because ofthc SM', subSlan· tlal Interest ill prevenTing the public: from being mi.led, Thll restl!ctlon ml'(,'IS the requ irements oICe01ri1l Cas and R.M.,. because the disclallllCl 15 direcTly relat~ to thill InteresT, ,1Oc! Is IlOt mom cxtensi'o1llh.ln necessary TO r.crvc thill Interest.~ {emphasis add~J Numerous inquiries have been dlrcc:tl'<l to the office o( the gencfill counsel InClulr!ng as to whcther th e dlsclalmcr Is requi red in cerlaln ad"""'rtisemCfllS, The disclaimer is required only In anorney advertisements describing a cenaln specific legal service or certain specific legal services. This oplOlon may serve to clarify Ihat polnl • ~
Septem/}cr 1987
MeLE
Q : I attended a course not listed on my
Q: Anything else I can do tt) save bilr
transcript. Will I gCT credit for it! If The course was accrt.>ditcd, slmil ly add it to your transcript. Our system stlll Is bollt on ir'ldiyidual honesty, and the commission w ill occcpi your report of attendance, I Think t attended a course but I am not sure, Haw can find ouH Call Or wriTe Ihe ~ponsor of thc course to confirm your attendance. If the courSe Is not on your tr.lrlscripl, thc commission does not have a record of your attendance bUT you are free to add it. I left early bUT you have given me credi t for ilttend(lnce of the whole course. What should I do? Bccnusc the MClE Commission chose nOllO burden sponsors arId attorneys with signoinlsign-ouT sheets, the only solution w,lS to give each registcred anomey credit (or full ill路 tf,!ndilnce. If you missed pm1 of a program, deduct one credi t per 50 mlnult.>i missed and make the correction On Ihe transcript. Ilaught part of one of The seminars li sted. Haw do 1 figure the credi ts~ Give yourself 6.0 credits per hour of presentalioo, if you prepared a Subs!,ln!i,)1 handout, and 3.0 credits ller hour if you did not do 50 {one or two pages do not count.lli54 these a搂 teaching credits, and subtract tht! tJnlc spent on stage from the credrts available for the COUtSC, Gjve yOurself credi t (or whatever time you were in the audience.
moneyl A : Yes. Comply on time, give your secretary sufficient infOmliltion to completc or COrrt!ct your transcript, follow up to SC(! that it Is mailed and, nlost Important. keep a ("J)pV o( the ~porllor your recOrds. Your prolessionillliilbility insurance cilrtier, the IRS, potential emplO')ers and any number of others may asl: you for a copy years from 1I0Y1.
A:
News
Q: A:
Q:
A:
by Mary Lyn Pike
Assistant heculive Director Q:
1987 compliance deadline ncar December )1, 1987, is the deadline for earning 12 appr(llA'(j elE credits. If there
are any doubts about the accreditation of any course laken during Ihe year, is ,he time 10 resolve them,
flOW
Some courses are automatically, I.e.,
presumptively, accredited becilUse Ihey are conducted by apprc:MXI sponsors and meet .. 1t ilCcrcditalion standards. (See the list of approwd sponsors and their telephone numbers.) Olhers must be reviewed UPO,l apl)lIcmion by 5l)Onsors. If an application has nOI lx.'Cn subm1Ucd or is incomplete find nn .morncy has nOI been notified of Jccrrolt;nlon, Ihe course probiJbly has not yet been approved,
e lE IranSeri,)I: new servi ce to members Throughout 1987 Ihc MelE Commis-
sion's secretary h.."lS been cnll~rlng (ourse registra tion 10(onI1II110.1 inlo the bar's computer, compiling Cl f tran SCril)ts for members, The <:ommission authorized These compilations In order to provide a service to anorneys and their secretJries, II is hoped fewer phone calls and letters will be needed this ~ar a~, to forestall some of them, here arc ans\.'o1!rs to some anticipated Questions.
The Alilbama lawyer
A:
If you wcre on
panel, send a copy of the progr,)m sch<:dule to MClE Commission Secretary D l ilnc Weldon and she will figure the credits to which you are emltled. Q : What attachments should aCCDrn路 j}o.lny the tran script when I rcturn It to the commission! A : None-no c~r letlet no certifica tes of lUlendance, no copies of brochure.;, no handout$. Opening.. revit,>wlng and filing over 7,500 reports per year Is a very timeconsuming ta sk Irwolvlng al leaSI three staff members Mel costing you bar dues, Please simplifv your life, our 1i'>eS ilnd your secrc tilry'S life: place the signed t~ nscript in an ~Iope without .my attachments or enclosures. iI
Last, If you receive a reminder letter from the MClE Commission or notice from tile Disciplinary Commission that your report h:as not been recel\lCd, slml)ly submit, Or resubm it, It or go out and carn some credit s lind report them.
1987 Approved Sponsors Administra tive Officc of Courts-Alabama Judicial College
(205) 834-7990 Alabama Sar Institute for Continuing Legal Education
(205) 346<6230 Alab.lmil Consortium of leg.ll Services Programs
(205) 264-1471 Alabama Criminal Defense l.<M'yel$ Association
(205) 26l-0003 Alabama Ocfense Lawyers Association
(205) 265-1276 Alilbilmil District Attorneys A,sociation
(205) 261-4191 Alabaml1 l<1wycrs Association
(205) 731-0608 AlabJma Stilte Bilr and b.lr sections
(205) 269-1515 Alabamil Trial I..lwycrs Association
(205) 262-4974 AmcriCJn sections
Bar Association and bar
(312) 986-5000 American College of Trial lawyers
(213) 879路0143 American Law Institute-American Bar Association (215) 243-1600 Association of Trlall..lwyers (800) 424-2n5
oi America
313
(800) 225-6482
Birmingham Bar Associa tion (205) 251·8006 Commercial law leaguc Fund (or Public; EduC;'l tlon (3 12) 236-1118 Cumberland Institute for Con tinuing Lcg.ll Educa tion (205) 670-2665 Defense Research Institute (3 121 944.()s75
Federal B;Jr AsSO(lation, North Alabama Chapter (205) 876-4237 County
Bar
Association (202) 452·0620 Nalioflal Orgaflitation of Social 5c<:urlty Claimants' Repre5enlativcs (800) 431-2804 National Rural EI~lric Cooperative (202) 857-9500
Library of Congress-Congressional Research Service (202) 287-1757 M obile Bar Associa tion (205) 433-9790 M on tgomery Coun ty 8ar Associa tion (205) 265-4793 LaWyelS
M organ County Bar YOUl1g Lawyers' Section (205) 353-7826 National Associat ion o f Allorneys Ceneral (20 2) 626-0435 National Association of Bond LllWyers (3 12) 920-0160 National Associ ation of Railroad Trial COul'lsel (213) 459-7659 NatiOnal Bar Associa tion (2021 797·9002 National College of District Attorneys (713) 749-1571 National College of Juvenile Justice (702) 784-6012 Nalional Health Lawycfs Association (202) 393-3050
P;lIent Resources Group, Inc. (202) 223-1175 Practising L.1W Institute (212) 765-5700 Southwestern legal foundation (2 14) 690-2377 Transportation L.1Wyers Association (3031 871-6323 Tu scaloosa Coun ty Bar Association (205) 34)-6789 Tuscaloosa Trial L.1Wyers Associa tion (205) 758-9044 •
Classified Notices SERVICES
International Associa tion of Defense Counsel (3 12) 368-1494
MontgonlCry County Trial Association (205) 264-.9900
National Legal Aid Olnd Defenders
A~socla l ion
aar
F«leral AS$OCiatioo, M ontgOmCry ChapTer (205) 567-25 45
Hunt sville -Madiso n MsoclilTion (20s) 533-1666
N;J!lonal Judicial College (7021 784-6747
EXAMINATION OF QUESTIONED Documents: Handwri ti ng, typewriting Md related e:«Iminarions. Intern;JlionalIy court-qualified expert witne ss. Diplomate, Americ.iln Bo.lrd of foren sic DocumCfl t EXAminers. M ember: Amerlcal'l SOcit'!ly of Q~liooed Document Examiners. the International Association for Identif cation, the Briti sh Forensic Science Society and the National Assoda tiofl of Crim inal Defense Lawyers. Retired Chief Document Examiner, USA CI I.iJOOralories. Hans Mayer C idion, 218 M(!I'rymont Drive, Augusta, Ce<'lrgia J0907, (404) 86G4267. FIRE INVESTIGATIONS for attorneys and insurance companies. Our film sl>ecial b:l!s in fire, haud , arson,
subrogatiOrl ar'ld sUr\C!IIarlce. IrlsU"lnCe oockground. Qualified in state afld fed-
LEGAL RE SEA RCH HElP. hperlenccd ,lItorney, member of A tabam;J B;Jr since 1977. Access to law school ilnd stale law libraries. V\kstlaw avai labh.!. PrOmpt deadline serviCE!. S35/hour. Sarah Kalhryn Farnell, 112 MOOre BuildinK, MontHomery, Alabama 36 104, 277-7937. In Jefferson and Shelby coonlies, call fr~: 322-4419. No rcp~entollion i5 mack abouf fhe quality of the legal services to be performed or the experfisc 01 the lawyer performlns such ser· vices. RESEARCHILOBBYINC FIRM AssiStance In dealing with Corlg-ess, Executive Branch (e.g. Depts. of Commerce, State, Defense, Treasury) and Federal Agencies. Oocum(mt ret rit'\'ill. Close to Federal Offices. MARX & KRAME, Suite 900, 1101 Connecl icul Avc., NW, W.lShinHton, DC 20036. Phone (202) 293-1750.
eral court. Refcreflces Jnd rilles will be furni shed upon req uest. James E. Posey, Jr., and linda F. Hand d/b/a Investiga ti ve Services, 4849 10th Avenue, N ., 8irmingham, AIJb.lIlla 352 12 (205) 59 1-1164. VALUATIONS/FAIRNESS OPINIONS Closely-held Busi nesses, Banks. Professionol Practices. For ESOPs, Gifts. Estate PlllIlning. Shareholder Disputes, Dlssol· utions. Economic loss. Experience with hundreds 01 <:ases ilnd many industries. Litigation SupPOrt. Cour! Te51imony. Caillwrhe 10/' our Newsletter. MERCER CA PITAL MANAGEMENT, INC., 1503 UN ION AVE. no I, MEMPHIS, TEN NESSEE 38 104 (901) 725-0352 .
National Institute for Trial NhlOcacy
314
September 1987
~"'
Classified Notices FOR SALE FOR SALE: So. Di8.; Am. Jur, Proof of facts aoo Am. Jur. Proof of faclS 2d; Beoder. ComputCf law (2 'oOIumcs); layson, Handling Federal Tort Claims (3 \.blumes); Dixon, Drug ProductliablUty (2 Volumes); Rilbkin and Johnson, Currenl legal Forms with tue Analysis (22 \btumc.os). I\1i current and complete clIcept Rabkin needs June '87 release, Co ntact Currun C. Humphrey, 549
Quarter Mountain Road, Harvest, AI· abama 35749 (nea r Huntsville), (205) 852-0392, but will be away Sept. 5·27, 1987.
FOR SALE: USED LAW BOOKS Alabama Reports/Appellate Reports, Ala· bama Code, Southern Reponer 1st & 2d, Southern Digcst and more. SAVE 3060"1. We buy, sell & trade. LAW BOOK EXCHANCE (BOO) 325-60 12 P.O. Box 24990, lolck§Onville, Florida 42241· 4990.
FOR SALE: Anticloe Alabama maps. Authenticity guarantet'd. ExcellCnt officc decoration whcn framed. WritC for list and photos. Sol Millcr, P.O. Box 1207, Huntsville, Alabama 35807. FOR SALE: Brother EM·200 Memory typt.owrhcr with disk drive and disks. In excellcnt condi tion. Send incluirles 10 Bowles & COllie, P.O. Box 704, Tallas· see, Alabama 36078. Phone (205) 263· 6548. FOR SALE: One (I) oct of Unih.'d Stol t~ Code Service, like ncYo', very reasona· ble-phone (205) 939-1327 or write 2153 141h Avenue. South, Birmingham, Alabama 35205. FOR SALE: ALR Federal, all yolumcs up-to-date, like new-one-half price of sct. Contilct Cody W,lyne Foote, 1617·8 Second A~nue, Opelika, Ala' bama 36801. Phone (205) 745·7848.
neYI
Tile Alabama Lawyel
-
. . _k_. ""_,. .,__
."'l'> _
NnCl<.ltr.""' ... ""....- -.....- "' ............ _
............ ... ....,... ......
1101_01100< I.loO"", _ _
U I _ ' ' ' - 01
.
~ ~....t~_
~~
'a7 __0N0fi.I<>0 IoIy II _SoofI! .., _ 000dI ... S. JO
No ........ .. _ ..1~ "' ....,. $onoI.1owIiod (""" ..... NI"f_ .... _ to ",.~ IM'I"'< to " ' - I........ ~ c.b _lMf'I< 1'0 ......,., _ '" ~I(/I
LAW BOOKS: ALR, 2d and ALR, 3d, complete, $995 (appraised value, $ 1,600); Am/ur, 2d, with 1983 p.p., $395 (appraised at $890); Am)ur Trials, $1 75 (appraised at $385); AlaOOma Reports, Vois. 200·295, $1,440; Alabama Reporter, \lois. Southern 331-456, $660 (44 yols.). Contact Tom Woodilrd, (20S) 367-8227, P.o. BOl 426, C.urollton, Alabam'l 35447. FOR SALE: Alabama ReportS 1·49, 281·295, 331-497; Southcm Reports 1·200; Southern Reports 2d 1·200; Ala· bama AI'PS 44-57; Alabama Digest (complcte and current). Conlact Howard C. Alexander (205) 28 1·2937. FOR SALE: BCrxler's Southeast Transac· tion Guide and 8ender's Southeast Lit· 19atlon Guide. Both sets are complele with current supplements. Conlact Johnny langley (205) 695-9427, P.O. Box 643, Vernon, Alabama 35592. FOR SALE: COLL£CE lAW by Albert S. Miles. Ph.D., ).D. lusl published; $27.95 hard~; $19.95 sonCCM'r. Order from author, 1406 Universit~ Boulevard, Tuscaloosa, Alabama 35401.
FOIt SALE: One set of Southern Reporter (1 st) and the first 100 volumes of
Southern Reporter (2nd). Also, curren t sct of Code of Alabama. Contact Marvin Rogers, 1521 13th Slrl!ct, Tuscaloosa, AI .. bamil 35401. Phone (205) 349-2652. JURY SELECTION BY GRAPHOANAlYSIS-you can tell from handwriting whether tM person Is conscientious, cautious, conservative, prejudiced, gent!lous, sympathetic, critical, in· depcodent; their goals. organizational ability and much more, totaling 36 In· divldual categories. InSlim! rl.,ference, Pocket-size book. ALT, P.o. Box 229, Independence, Missouri 64051, 515.95, plus I,u; and $2.00 shipping.
POSITIONS OFFERED AnORNEY lOBS-National and Fed· eral legal Employment Report; highly regarded monthly detailed listing of hundreds of anorm:!'j' and law-related jobs with U.S. Government, other publid privale employel$ in W,lshlngton, D.C., throughout U.S. and ~broad . 530- 3 months; $50-6 month~. ft>d· croll Reports, 1010 Vermonl Ave., N.W., *408"'6, WJshlnglon, D.C. 20005. (202) 393·33 11, Vlsa/MC. ASSOC IATE "'OSITION in Mont· gomery firm . PI .. lntlff trial practice. Zero to throo )'Coll$' OIperience. Must be member of Alabama State Bar. Salary ncgotlable. Inclulries held in Strict~St confidence. Please send resumes 10: AI· torney Appl ications, P.O. Box 829, Montgomery, Alabama 36101.0829. BIRM INGHAM LAW FIRM seeks lawyer for position in commercial and retail litig.ltlon department. Experience is preferred. Class sianding in lOp third of class Is required. Apply in confidence 10 P.O. Box 55356, Birmingham, Alabama 35255. POSITION AVAILABLE in sm~1I law firm, one and one-half yeill$ old, (or lawyer with two-four )'Cill$' clperlence ilnd Inte rest In business litigation, cor· porate law ilnd coq>orate bankru ptcy. Alllnquirfes confidcnt!al. Send to: Hiring PMlner, P.O. Drawer 1865, BlrnllnKham, Alaba ma 35201·1665.
,esurnc
EXPANDING AV FIRM In Nonh Ala· bama city seeks eMpcrienced commcr· ciallawycr to compliment existing prJCo lice. Apply 10: P.O. 60x 2008, Hunts· ville, Alabama 35804. Classifit.'d adverlisemenls deadline, for Ihe November 1967 issue Is September 30, 1987. No exceplions will be giVfn.
31S
Memorials k.Hl P,1lI1 I .l( ollr
These notices are published immedi-
you 10 prom ptly report the death of an
" tely (lIter report$ (If deillh i H e received. Biogr;ll>hical information not aJ)lX!ari ng in this issue will be publl ~h~ at a laler dale if information is accessible. ~ ask
Alabama 3norney to th e Alabama Stall! ilar, and we would appreciate ~u r assistance In providing blographlcall nformalion for The Alllbam~ L.lwycr.
Herberl I. Burson, Jr.-Montgomery
George Edwin Slone, Jr.-Mobile Admitted: 1935 Died: April 25, \987
Adm itted: 1949 Died: April 26, 1987
Robert Harold Freeman, Jr.Birmlnghllm Admitted: 1977
Died; June 14, 1987
William Borden StriddandBirmingham Adrnlned: 1955 Died: April 23, 1987
Elliott Graham Gibbons-Mobile Admil100: 1952
Dk'tl: June 13, 1987 M ,uiM
~is
Gwaltney-Montgomery
Admitted: 1942 Died: June 25, 1987 Reuben Kyle King-Ml)ntgllmery Admitted: 1957
Died: June 6, 1987
Jean Paul laCour-Pensacola, Floridil Admitted: 1937 Died: June 13, 1987
Hugh Strother PJllerson, Sr.-Bushnell,
Florida Admittl!d : 1931
Died: July 2, 1986 Shuford Brandon Smyer- Birmingham Admitted: 1912 Died: June 11, 1987
While E. Gibson, Jr., ;11'1 honored member of the Birmingham Bar Associa· ti on for 57 years, died Aprif 30, 1967. He also 'NilS a member of the Alabama State Bar and the AmedCiln Bar Association and practiced wi th the firm of lange, Simpson, Robin son & Somervi lle. Glb· son's prJctl ce covered many areas of law but he particularly WJS known as a rail· road defense counsel. Gibson was born in 1908 and gradu. ated from the Univ<!l'SilY of Alauama School of Law In 1930. He served ir' the United States Army RescM! (or more than 25 years; during World War II , GIbson 'NilSstaff judge ad\OCate of the Founh Infantry Division in Europe and held the rank of colonel. Gi bson is survived IYt his son, White E. Gibson, III, of New Orleans, louisiana. •
O n June 13. 1987, Colonel Jean Paul laCour, United Stales Army (reti red), died. He gmdull1ed in 13W at the University of Alabamil in 1937 an,Jwa s (I member of Alabama's varsity football team. He opened a law office, but wa s soon r1.'(ruitf,.'(i by the FBI, wh (>re ~ ser\li.>d until World War U. He was selected and commissioned a 2nd U.ln Coast Artillery (antl.alrcraft). He laterwastran s(erred to the Corps of Engineers ;md commanded trOOps in combat in V\Qrld War n. He participated in the invasion of Sici ly and the IHi ll:m malnlJnd, and Ih(>reafi(>r he s(>rvcd wilh distinction In other parts of the European Theatre. He was SllIlln the Army during the K0rean operation and commanded a bat· talion after the Inchon landing. He was promoted to colonel, United States Army, November 1, 1954. He retiroo as a Col· onel in the Tran sportJl ion Corps In 1963. He recel~ Ihe following military decorations: American Defense Service Medal , Ameri can Campaign Medal, World War II Victory Medal, Meri t Unit Commendation, EasternlAsiatidEuropean C"mp.lign Med"l, KoreM Servi ce ME:>dal , United National 5l:!rvlce Medal, Nallonal Defense SeNitI:! Mooal, Bronle Star, Oak leaf Cluster to Anl'ly Commendation Medal arld Armed Forces Reserve Medal . After ffltifflment, he accepted employment in the offices of Jones and Welch until h(> could take r he Florida Bar e)(aminal/on. Upon passing the examination al age 70, he became an associate In the firm until his retirement In 1983. The day after his deilth, ~ letter was r1."Ceivc..'(! inviting him to anend his 50th class fflunion al the University of Ala· bama. He was a man of the hight:!st inwgrity and ethics. folt:! W.,S .. credi t to both the legal and military pl'Ofcsslons. I. Mclienry Jones Jones &: Welch
Pensacola, Florida
316
S(>plcmbcr 1987
Ex Arguendo . .. "A democracy cannot exist as a permanent form of government. It can only exist until the voters discover they can vote themselves largess out of the public treasury. From that moment on the majority will always vote for the candidate promising the most from the public treasury - with the result that democracy will collapse over a loose fiscal policy, always to be followed by dictatorship."
131 RM I NC HAM I)U BLI SH I NC COMI'AN Y 130 S. 191h SIr'eel, Uil'lllingham. AIHbamH 352332051251 路 5113 FAX 203/25 1.2222
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