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The Alaooma Lawyer
245
The Alabama
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- by Andrew P. C• .,pbell ............................
272
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Steven T. Marsha ll . .... , .. , ...
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Civil action, brou!!ht under RICO COllllnue 10 drilw Itldlclal ilnd media allention. I'roof 01 tilt' clemcnts ncccss.l ry 10 cSlolblbh RICO i'l'(;ov('ry h,l ~ gem' r"wd (r('qu{,lllly conflrc· tlnM ludlcial o piniOns.
The Improper Ciyil RICO Claim: If Such a Thing Ex ists, (.11111 Be Battled With Sancti ons? - by Elwyn 8urton Spence ............. . ....... . .. . ..
290
With Ihe increa~ing uw of civil RICO clilUll5 in busines~ litigation, dOb ,I ~ucc~~ful def('ndanl h.wt' r(,!l1(.'(lie'> available 10 iml)()<;(! ~ln( l ion\ (or the pro~('(ullon 0(.1 frivolouS RICO Ihroryl 28{) Prl'~idl'nl'~ P,lge loiS C;U OI)lX)ltU"'tll'1 I '~'tuIlYt· D!lt'(tor'~ Rel)Orl Leg,sl.Jhvl' Wr.lll-Up 8.11 Orll'f) OpInions of Ih{' Cf'ner.ll Cou"",,! 30, 251 About Membe~. Among Flrm~ 25 4 ~1'H'11I [)(oc1\IO'" 307 Corhuh.lI1t·S Corner 258 MI-'Il)()r'.ll~ 312 BUlld,,,S "I"b.!m,'·~ Courlhou>l'~ 260 DI'>!:II,lIn.Hy R('I)()!I 3" .1 15 1990 """u.11 M{'t'tonS I'''/thlilthb 102 CI.l~~lht'<l Notl'''''
'"
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SC,:Al'mht'r 1990
ALABAMA BAR INSTITUTE FOR CONTINUING LEGAL EDUCATION Seminar Calender ScctCIlIbt; r
Noyembe r
7 I) 14
• Will Dn1fl ing-Blrmlnllhalll • Oivorte lII_lIlIntJv Ule • [)iVOl'(e L~w_Blnni nNh~m
14 21
DIvorce La_ Mob,le Divorce Law-MQllIgomery ·llow Oflke M an~menl rOu,t Clear 'Ntw Alabama Ruler. 01 Cnm ln"1 Proced ure-
21·22 27
.Trylng and ScI IUnlll hc:
I
PerKMlallnjury ~ Sheffield Rul ~al~Monlaomery
2 8
Real E6talt- Blrmlnvh~m "New Aillbilmil Rulel of C. i m",~l Pfl.)C;~lu._
Mobile
9
• MOIlon PflKlltc-
9
Bl nnhl8hgm • • T.ylnil ~nd So:UH" NIhe
1S
Dothan • Civil PrQI;cdure-
MonljlOmcry
28
'New Ahlb: ...", Rlllo:.t of CrlminHI Procedllrr BlrmlnghQm
I'CflIoIlHllnJury Ca.e_
MOlUl/OIncry
.. . .'!'kw Alabama Rilla 01
16 • Civil ProcedureBirmingham 29 • Trn.I IMUa-i-Iunuvlllc 29 • T"al lDlIQ-Mobilc 30 • Banktupt.cy Law-
Birmingham
C rimim.1 Procedure-
Doth:."
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• .. l)jyOfCC: Law.....shcflldd
S
. "lubanlP Stcu,l\ ltl Law-
Ilrrrmbrr
B,nnlnjthHffi
11
• ""New Ah.b;"nn l~utCi of Crnn hlnl Pr(>I!e(iurc-
IIl/llllvllle 11 • CIIUlI(;tiomlliwBlrn,llljo/hlull
18 • Tryl'lll ~nd Stulinl! the Penonall nJulY C-Montgomery 19 • Trylllil and Sc:ul,nRthe Pf...,.1lI1 hljury c.Blrmlnghnm 16 • Juvenile lliw and PracticeMOII'III,mcry 26
• Admlnlltcrinl! F..um<:.!l ill
6
• Trial [NlIc5-Molllgomcry
7 • TrlRI
I NlIC5-Bl fln lngh~m
7 • F.>un ~ 1'1:lImillll_ Binnlnwhwm II . Alabama Practice U pd~te-Mobllc
11 • Abb;l m~ ~t ite Updatc.--M(luIJ!Otncry I) • Alabanllll>rac:tlcr Updalc--I hmuvllIe 14 1\1:ob:lm~ Pnocticc Update-B,nninl/halll
18 19
AIHbama_ ll lrmlnghr" 1I 19
"I),vorce lliw- TuKllloe»;I • ..New AIMoomR Rulao4' Crlrllhllll ProccdurcUirmh'Khn,n ..TryinG ~1l<1 Seu !!n!! the PCrIOnalln!lIryCa_ T uIClIlOO6II
20 • ·"Ncw AI .. bRmA Rulel oi
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The Alabama I.<lwyt'f
247
President's Page AccepMnce Speech Oel ivcrcd to Alabama Siale Bar Annual Meeting Mobile, Alabama
July 21, 1990
W
e hlM! an exciting year ahead
Ihill is being louted in some states, I also strongly suppol1thc c~pansion 0( wlunt:ary Pr(! bono work by lawyers in Alabama. Our bar's ~t udy this paSt year has shown thill there Is 11 great unmet need for leg:al services to the poor in this state. There are people out there who are homeless. afflicted and In d~pcrale need of legal services through no faul t of their
of us In the Alabama State Bilt. We just nnlshed a breakfast meeting where members 01 over 40 If we oppose, as I do, simply turning committees ilnd task forces began oraver this problem to the federal govemganizing (or the coming year. They are ment to be dealt with by ta~ dollars, and all Important and worthy of mention, but If we oppose requiring l:awyers to work time will only pcrmil mention of a few. without PilY as a condition to their I hope: that by this time next year we will be in an e~panded building on Dexlicense, then we must work harder to meet this need on a voluntary basis. ter Avenue, with everything under one local bars In Mobile, Montgomery, lusroof. We cllrrently have our General ALB RI TTON c:aIOQSa, Birmingham, Huntsville and Counsel's office and disciplinary stllff elsewhere are already doing good work. t>Ol)plng ,II the seams in a separate Our task force h:as recommended, and on V\t>dnesdilY the building on Perry Street, our IOlTA funds director workbo.lrd 0( commissioners supported, the hiring of a (ull-time Ing from a Uric ,..ble in the corner of the Ilbfilry, ilnd when coominator to develop a statewide program for voluntary your president USCi a telephone ills often the onc sitting on lop 01 the mimeograph nl3Chlr\C. Our nCl...ds are critical. dellvcry of legal services to the poor. "" :application for We now have the necessary extra land, a fine set 01 plans, IOlTA funds will be milde i1nd you will hear more about this exciting program during the year. and weare ready to move. With your support we will have AppeJidtc courts-our lask force will con tinue with Its the necesso:lfy funds to make this woject a realhy. efforts to bring aboUl lml)lemcnlalion of irs recommendaIn addition to the expansion of the bar headquarters, tions for restructuring the appellate courtS of this state. thuse are just a fl.""" of the Important Issues with which Judicial selt.'Ction-When I spoke to Ihcannual convt!nour commlll(!(!s and task forces will be deatlng this year: Specialization-Has Its time Cornel A 1.1sk force, aption of state ci rcuit and district judges earlier this ~k at Culf Shores I shared with them my serious concerns pointed last year and continued this year, is studying this qucstlon In dCI)th and will report its recommendations 10 in this area. I have illways fallOred selection of ludges by popular election, but ~ have serious problems which may the board of commissioners during this year. mandate change. FOr example, OUt system of election is profl'1islonalism......lNhat is iI, are we losing It, and what Coln be don(.01 This tflsk fQl'(e will 51udy what Is being done presently utxlcr allack In federal court as being racially In other St.1 ICS, particularly in Virginia, which Is in Its sebiased. Another problem which greatly cOl'lCerns me is the t.owrcond year of a required twtHlay post graduate course as increasing cost of running for Judicial office. More and a prerequ iSite to t:aklng the bar ~m, and will bring recommendations as to things we might do In Alabama. more candldales are (acing e~penslve I>rlmary races and IIro bOtlO-A....l llability of legal services to Ihe poor. then having to run again In the generill election. With this While I strongly oppose the idea of mandatory pro bono has comc the demeaning necessity of judicial candidates (conlinued on P<'IlC 250)
'48
""'0.
Septemoor 1990
Executive Director's
Report
Fun and facts
P
I<lnning for the 1991 annual meeting of the Alal>.1ma 51ale Bar
W;I$ underway before the recent· Iy conciudl.'Cf 1990 meeting in Mobile bcg;lIl. In fact, the 1992 meeting is al.
ready I>ookL'CJ in Birmingham with a reo IUrn 10 the Wynfu:ly,
As hilS been cu~lomary for years, Ihe hospItali ty extended by the Mobile B;n Association and Irs bar auxiliary conlri· bul\.'(1 to another successful convent ion
in the port chy. The complimenlS still beIng paid those v.ho planned the progranlS, §()Cial fun and alumni events have been graCiOUS arId numerOUS. The attendance al all events was outst;mdi ng. Speclallhrmks (Ire due jl.ldge Griffin Bell and Dean John Reed (or the
two of the bcSII)rescnt.ltlollS Ihis writer has heard al bilr conven tions not only in Alabama, bUI in olher jurisdictions. The 1991 meeting format will be dlf· fewnt In several w~ys. These changes aw diClawd hy a ncw and IJrevlously un· visllcd conven tion site fOr the Alabama Stilte Silr- the Perdido Beach Hilton on Alabama's Gulf CoaSt at Orange Beach, Alabama, will be the headquartcrs. President Albritlon want5 Ihls to be a family.and fun-ori entoo meeting, Shlrt~ with tics will be discouraged. OUf evei1!S will be casual. Bcciluse of limitcd meet· Ing Sp.lCC and the need for food fun c· lions, all educational programs will be In a Gencrill Assembly format. M,..etings will begin early-but no sessions will be held to compete v.ith recreiltionili actlv· ities ciI(;h ilftemoon lifter 1 p.m, Pl,lnning 3elivlti('S Me such ~s to ma)(imizc the opportunities to !CSt and rcla)( on our beautiful Gulf coas t. The bar hilS reS('rvcd the entirC hut!,!1
room block-illl 300 .. rooms. Reserva· tions will be available only On the convention regi Stration form s through the bat headquarters. Individual callers to til{' hOlel will be dlroctcd to con taclthe bar, It Is reaSOllable to assu me th;lI the hotel will not be able to accommodllle ,11 those desiring rooms In the hotel. To pl,m for thi s eventuality we hOIJe to have a shull Ie bus to oper~te between Gutf St.lte Park and the Hilton for all registrJnb at lodging sites between thl..'Se points. Convention activities will begin Thursday, July 18, and proceed through Satur· day niSht. July 20. We hope to have the program finalized for pre.reglstrJtion In late spring 1991. lawyer utilization UIJ-<iatc The AmeriCan Bar Fwnd.ltion recently releaSt.'tI an update of its LCgill NCI..>ds Study, 1974. Some Inlt"!resl ing facts are noted In the 1989 update entitled Two Nationwide Surveys; 1989 PI/m Assess· menrs of the Unm{'t legal Need) of the Poor .1nd the Public Cell<'fally. This St.'Cond phase of the orlglnill study was conducted at the request of the ABA '~ COn!.Ortium on Leg.,1 Services and the Public. This new projcct docurnent(!(1changl.'S In Ihree areJS; • use of lawyers for IJersonJI legal problems • methods of Iilwyer selection - methods of payment for lawyers' services Some major findings reiloctcd the following; • 72 percell! of 1989 respondcn ts had consulted IJwycrs for persollal
HAMNER
m"tlers-up 8 percent from 19 74. . 39 percent of 1989 respondents consulted lawyers at teilsi once within three years of the survey-up 12 percenr from 1974, According to the 1989 5UfVey, S4 IJercen t of responden!!; seeking ~lwyers con· su ited nonlawyer friends and rcla tiYes. AllothN 2 t percenl turned 10 rela ti ves and friends who were lawyers. The Yellow Pages were used b~' 4 percent, while 4 percent relied on other forms of advertisements. Only I percent of 1989 lespond<.onts seeking legill hell) melllioned lawyN referr,,! services JS a means of locating a lawyer. The entire survey findings are available from the ABA Order Fulfillment OePilfl· men! for $8.95, plus l>OStJg/' and hand· ling. •
24.
President's Page (continued from P<JSC 248) "no sitting lodges ilccepting- .lIld even secking-campaign contributions from lifWyCrS. polentilllliligml \$ iJ nd $pt.'(ial interests. This is jusl wrong. No one should
have to VVOlldcr whether OJ Judicial decision will be affectoo by whi ch lawyf!r makes the IJrgesl campaign COn!ribulion. Money should nOI be a fJ Clor-elrher real or perceiyed- in the disl>cnsation of Justi ce ilnd
we (;(lnnol loler(l10 rhe (11)-
pear,lntl;! of justice for sillc. Our ta sk force on judjd~1 selection will be taking II fr(>~h look iiI thc$() probli!ms and whether the time has come to seriously
consider such changes as nominating commissions, appointment wi th rClcn· lion ballot. nonpartisan election and fi.
nance restrictions. In addition to the fine IM)rk being done by the Illsk fOrCI!S I hilI.'(! JUSt ml:ntiOnl>(l, I h:l~ Olppolntoo three new task forces thi s y\!ar to work In areas that I believe deserve special :lllcmion. The first Is <l Task Force on Minorit y P,lrlicipJliOn and Opportunity. Thi s is a biraciJI group which will \.\IOrk to in· crCJse partidpJlion in bilr activities by minority lawyers, ~ IOP the "brain drain" of many highly qualified minority ShJdcnts to law schools In other Slates and minority lawy\!rs to jobs In other states, and encourJge the expansion of C.lrcer opportunities for minority lawyers in AIJb;lma. We w;ln t everyone 10 know thaI not only is ~ry lilwycr required to belong to Ihe AlJbama $[;lIC Bilr and pay dues, but also that they af(! an intcgfill I)art of it- their I)arllcipalion Is welcomed and ncroed. The second I~ il Til5k Force on Disastcr Response_ This group will put In plJce plilns for rJpid response 10 sudden disasters, whether rniln-m<lde or naturill. This will Involve l;rwycfS working wi th government,,1 agencies arId others In Ihree ,m~aS- to assist locallawycrs and courtS with personal problems, to I)rovldc legal
250
advice to vktims, ~nd to deter unscrupulous persons, such as bogus cJilims assistilnt s and "parachute" lawyers out to take advarllage of viCtims. Finally, we will haw a nl'W Task Force on Quality of We. Why arC we beginning to hear lawyers say. "Practiclr'g law JUSt isn't fun anymore;' ilnd "Practicing law Is nOI what I eKpected It to be"l Is Ihls juSt the nature of Ihe beast or Coln we identify spt}Clflc problems an(l (10 someIhing about theml That Is wh at we are Boing to try 10 find oul. The practice of law Is cert" inly not for ~'Wryone, II c~ n be a hard, contentious, low p:aying W,ly of milking il li ving. But, for those of U$ who choose thi s way of life It can be llll t h~t wu ~'VI',lr W<lnled il to be. Sure there are the IOWS- r,lnging from the dcvastmlon a young l;rwyer feels when hi s court apl)()intC(i cli ent, In whose cause he hascome to strongly ~ Ii~, is conviCled and senl to Jail, to the pmsonal angui sh felt by a business law ~r whose long and best e((orls to save the busi ness of a client ~nd friend go down the drain in b;lIlkruptcy. There are the long hours, sleepless nights, Ihe str,lins PUt on family, and the aggril\0tiOn of being lold the latest lawyer jokes at parties. Buttherl,l are 31so Ihe highs- the thrill of wlnnlng tht! big c;;ISC in court, Ihe sa ti sfaction of creating just the right estate plar\ or Ihe n('W mechanism that makes a business deal \.\IOrk, fi ndinlJ a "SPoiled hog" case during research in your law library late ar night. or the smi lc on a young filmily's (ace when you have! concluded an adoption. And, you know, as much as we allllkc to make a good livinl:l, the real thrill s In being a law)'i!r are r,'n~ly caused by the money we make. Over a year ago IwO of my sons were working on applications for law school and 'Nt;! were t{llking about the qUC5tions. One was Ihe simple question, "Why do you want to be a lilWyerr' A simple question, but not So ellS)' to ilnSWer, II caused me to think back to my own reasons for wantin g 10 take thi s road. It would be
easy to say that I was attracted to the glil!\\our and integrity of il lawyer couragcously defending an innocent man and proving his ilmocer1Ce. But' remembered a night at home when I was )<lung. Our dining room had been off limits fOr $I;Mlml dil)'S, with the t.1ble piled high wi th books, p;l~ rs and chans. I had been wa tching Illy filther come in from the of. fice with brief cases, eat ~upper with us in the kitchen, and then head for thl! dining room. Th(ll nl8hll had seen him getling up and down from the table and pl1r;ing the (loor. When I s;rw him standing and staring out the window t got up my courage and went in and asked what he w..s doing. I-Ie s(lid, "Well, son, Ihe judge has appointed me 10 defend a man charged wllh murdering his wife:' I asked how it had happened and h(o ~i d, "The witnesses say he chased her around the ht)u$¢, Qut into Ihe yard, shol her Ihree times wi th a sholgun and then broke the stock of the gun over her head. I think he was Insar\e." I lold him I didn't think he handled criminal cases and he said, "I don't and I'm having to do a lot of extrJ 5tudylng to know wha t ,'m doing:' f ~ id, "Did he kill her?" and he said, "Ycs.. I said, ':<\re you making a lot of I\\or'(,), fOr this?" ~nd he said, "I'm not being paid anything." I Silid, "Why are you doing this?" and he said, "Because I am il lawyer," I really didn't know wha t a l;rwycr waS, but righ t then I knew I wanted to be one. Why? That would sound v(!ry Str:lnge to some. I didn't know then and it Is hard to articulate nQ'W, but you all know what I mean. I will SilY this-I have been married to the l;rw (or 30 'y'eil fS now and il Is stili a horK>ym!X)n . And the proudesl moment of tho se 30 years is right now il S I <lCeel>1 Ihe presidency of thi s ilSSOdalion. During the coming year I will do all th,lI I possibly can to make you a good president. You have honored me beyond what words Clln expre ~s-a nd I simply H
'''!Thank you, my brothers :lnd sisters al the bar.
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SCJ)/cmber 1990
,-
Bar Briefs Jackson installed as president-elect, ATP William p, Jackson, jr" a senior partner In the Arlington, Virginl{l, firm of Jacksoll & JCSSUI), WilS insti lled recen tly liS pres路 IdcnH!lect of the A$scx:ialion of Transportation Practitioners. The aSSQ(;iation held Its 61St annual meeting in June in
Toronto, Ont;lIlo. He Is a 1963 8r... duat~ of the University of Alabama School of
Law ilnd served as IllW clerk to ludge Aubrey M. Cates of thc Alabama Court of AI>IX!ills in 1965. He 11;15 been in private practice continuously In Birming-
hom, Alabama, Washington, D.C. , and Arlington, Virginia, since thC!n.
American College of Trial lawyerS'
award for coUr.lgcou5 ildvocacy The Ameri can College of Trial Lawyers periodically grants a prestigious ftWIIrd
for instances of cour.lgcous advocacy by members of the bar, whether or not Fellows of the Col ege. The dennltlon of the conditions of tne iJWilrd Is as foUOYI5: "The award of the College 01 'Courageous Ad\lOC3cy' shall be 81~n for outstanding efforts by n lawyt!r, whl!ther or not a member of the College, on behalf of a contra.oersial causcor client where the representation occurs in the face of actual or possible dlsf3YOr or public unpopularity or ad~rse treatnlent by the media d the lawyer, client or cauSe." Only a handful of awards have been made Oller the ',C3r5. All have been eKeml>lary of the type 01 COUr,lgeous ad..ocacy which rhe College believes should be rewardt.od . The matters handled which rt.'Su lted in the awards have ranged from civil and admlnlS!rari~ matters to criminal cases. The most recent recipienT of the award was Stanton 610001 of Tucson, Arizona, for his pro bono defense of a criminill
The Alab.1ma La\\oYer
case In which there was !!Ireat public outrage about the alleged crime. Nominations for recipients of this award should include a resume of the nominee, copies of My newspaper aCCOuntS of the milller h;mdled by the nominee, and letters of SUPl>ort from members of the bench and bar who are knowledgeable about the mailer. These should be sent to SylVia H. Willbolt, p.o. Box 3239, Tilmpa, Florida 11601.
Max elected 10 leadership Birmingham Alumni Cou ncil The leadership Birmingham Class of 1990 has elected nve of its members to the Alumni Council. Members elected are Rodney Max, Chris \M:)mack, Elise l'enneld, Yvonne 8~skln and Jenny Gauld. Max Is a member of the firm of NaJJar, Denaburg, M(oyerson. Z.1fl!ilUr, Max, Wright & Schw<lrtt, a proit.>ssiOflal corporation. He 15 a gradualC of Cumbcrlan(! School of Law.
UA Syslern nameS Powell nl.'W
ically. The o(fice nOH operilteS as an intcgraled unit in the four locallon5. As general counsel, Poo.YcIi is chMged wllh administra tion, stafnng and org..1nlzation of Ihe systcm-wldc department. The legal office holds diSTInction as the fif5tln.house legal depatln1ent in a uni~rsity or college in the United States. liS origin dates to 1899 when Tuscaloosa allornt.'V Robison Brown was appointed as secrelary of Ihe board of Irusteeli. 8rown boc,1me loan anorney for the Uni. ~rsity In 1925. Clifton Hewitt Penick assumed the position In 1939 and ulllll his death In 1952. J, Rufus Sealie was appointed in 195) ilnd held the position untH his retirement in 1983. Robert Potts became general Counsel In 1984, serving umlllnnuary 1990 when he wa s named Interim prC!sldent of the Unlvcf5lty of North Alabama In Florenc/!. ~II becomes the Mth attorney to hold The position. A graduate of the University of Ala路 bama. Powell received an LL.8, degree from Ihe UA law 5(hool. His profession.
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gener.ll counsel C. Glenn 1'owt!1I ri Tuscil loosa has been named general counsel of The Uni路 ~rsHy of AlabJma SyslCm. The appointment Is effecti~ Immediately, according to an announcemenl by UA System Chancellor Philip E. Austin. Pl::J.M:!II has beeo associated professionally wllh the Uni~rsity since 1972, and became deputy gener~1 counsel for the UA System In 1974. The office dell~rs legal services to all com,>onenl$ of the UA System, which Includes 42,000 students and 17.000 facully and starr, on lhree campuses In Tuscaloosa, Birmingham and t-Iuntsville. The Olnce of Counsel In Its present form wa s created by the board of lru stces In 1986, when offices on each campus and In the system ofnce were consoli路 dated ildmlnislrati~ly but not grogmph-
Pawcll
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al affiliations include the Alabama State Bar, the Amcric;u\ Bar Association and the National Association of ColicHes ilnd University Attorneys. Reeves admiu!!d to American College of Tri;ll lawyerS W. Boyd Reeves has become a Fl;!liow of the American College of Trial L,twyeJ1. Membership Is by invitation of the Board of Regents. The Collegu i$ a national association of 4,500 Fellows In the United States and Canada. Its purpose is 10 improve the $tand<lrds of trial practice, the admini stration of justice and the ethics of the profession, The induction ceremony took place during the I"(!ccnt spring banquet of the Am~rlcan College of Tria! Lawyers. Reeves is a partner in the Mobile firm of Armbrecht, JackSOI"l, DeMouy, Crawe, Holmes & Reeve5 lwd hil ~ been practic· Ing for 30 yeilr$. He 1$ <In aluml\us of Tu lane Schoo! of Law.
Rubin inducted member uf American College of Bankruptcy Professionals Robert B. Rubin, a senior p<:IrtnCr of the Birmingham firm of Sirotc & Pcrmull, p,C , was recently inducted as a charter member of the Americal"l College of Bankr\lP1(;y Professionals. The induction ceremonies took place May 7, 1990, ilt the Supreme Court of the United Sti"ltes 11"1 Washington, D.C. The College is a newly formed organil3tion sponSi)red by the American Bankruptcy Institu te, with the purpose of reco!!nizingthose practl. tioners, professors arId judges who have made a significant contribullon to the field ofbankfuptCY law. Rubin wilt serve li S the Alabama delegate to the 11th Cif· cuit Counsel of the College,
Court of criminal appeal s selects
30, 1990, after 54 years of service. Pur· suant to the court's order, Marin will <lSS\lml;! the office of clerk beginning October 1, 1990. Mann has serwd as director of the legal division of the Administrative Of· nce of Courts since 1979, and alw as
Mann
Jordan
Mann new clerk The Alabama Court of Crimina! Appeals has selected L..me W, Mann Of Montgomery to replilce the long-time clerk, MoUle Jordan, who rcti«..>d April
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director of Alabama's Judicial St\ldy COmmlssiOl"l since his appointment in February 1987 by former Chief Justice e.c. Torbert, Jr. He is the son of ( areer
public servanl Floyd Mann who served in cabinet positions under three gQ\ICr· nors prior to his retirement in 1983 as Vice-president of external affairs for the University of Alabama. Mann is married 10 the former Lana Bush of MOntgomery and they have three daughters, Julie, Katie and Lucy, In addition to his service as director of the lega! division for the Administrative OffiCe of Courts, M(inn's prior empioyment experience Includes service as a slate trooper; a Unlted Stales Paslal In· spector In Philadelphia, Pennsylvania; and an inveslig.1lor for the Law Enforcement Division of the Alabama Attorney General's Office under former Allorney General Bill Baxley; and as a special assistant attorney general under former Attorney Genera! Charle~ Graddick.
Davis presented Dean Thomas W. Christopher Award J. Mason Davis, of the Birmingham firm of Sirote & flermutt. was reccr\lly presented the Dean Thomas W. Christopher Award by the Studellt Bar Assocla· tion of the University of Alabama School of Law. This award was created in 1981 and i ~ presented (lnnually to <l student, alumnus, fa cuity mcmbt!r or friend of the Schoo! of Law who has made a lasting contribution to !eg.1 1education and the University of Alabama School of Law. The genera! purpose of the award Is to recogni7.e lasting contributions for the betterment of t h~ School of l<!w. In l)rCSenling th(> aw:Hd to Davis, SBA Presld(>nt Chris Hughes noted tha t Davis recently participated In a ~ccessfu l fund drive which established the Anhur Davis Shores Scholarship Fund at the School of Law and has served the School of l,(Iw as ,1n adjunct professor of law since 1972. New ABA life Fellows honored S. Eason Balch of Birmingham and M. Roland Nachman, Jr" of Montgomery were honored as new LIfe Fel10ws of th(> Ameri can Bar Foundalion in Los Angeles til the 34th Annual Meeting of The Fel·
September 1990
lows of the Amerlc.ln Bar Foundat1on. Pl aqu~ were presented by Robert M. Ervin, chaiq)Crson of the FellOW'S, alld Wi lilarn G. Paul, the 11CYI1~lected chair· person of the FellQW$. The Fellows Is an honorilry organlza· tion of practicing tl1torn(."(S, judges and
o( Ritchr(>, R(.odrk(>r & Warren (1976·8)1; a professor of law at Cumberlll1ld School of LJW (1980·83); IIJ'Id a professor of law at the University of Alabama School of law (1983·90). Att orney selected fo r diSl ric t judgeship Mobile attorney and Mobile Bar Associa tion President Richard W. \Ullmer, Jr., was recencly selected as United Stat~ District Judge fOf the Southcm District of Alabama. Upon his resignation as president of the assoc;:i(llion, George Fink· bohncr assunlcd the office. \t)lImcr Is a gt3dullt~ of Springhill College in Mobile and the University of Alab<lma School of l..1W (1953). 'Allimer had bee" with the firm of Reams, \killmer, Philips, Killion, Brooks & Schell since 1956.
A BA offers free law pract ice management cal.llog The American Bar Association is giving away copies of Ihe 1990 summer edl· tion of its !..lW Pracficc Mana.\lemcm Pllblicmlons Calil/og to help attorneys kl't;!p up wllh the Ilt.-west trends In 1,IWyfJr mJnagement. The 2o.P8ge multi-colored catalog Is a complete listing of the ABA L.1W Prac· tice Mlln(lgcment Section'S books, lIideos and cassettes. It offers numerous products cOliering a lI.uiely of areas, such as
automation, financial management and analysis, malpractice pr~ntion. market· Ing. sta ffing and office procedures, SI)<lnish
tr;1Il5Iatlor\~
and a special center
gatcfold of the "New BooksH section. Each hC!m includes a short dct.liled summary and a price. The 1990 Law Practice Man"semem
CMaloB is wilil;rble-frcc- upon requcst to the Amerle.ln IJar Assodlllior'l's Order Fulfillment delhlllmenl at (3 12) 988·
law teachers who encourage and support the research l)rogr.Jm of the American Bar Foundation. The objec1ive of the Foundation Is the impl'O'YUml'mt of the legal system through research concerning tile law, the admln· istration of justice and the legal profession.
Spina elecled Fellow The American Boord of Criminal Ulwycrs Mnounces thaI ThomJs J. Spina of Birmingham hM been elected as a Fellow In the AIllerican Board of C,imi· nal LilW)'.!(5, J group of crimi nal attorneys throughout the Unlled SlaW$, C"nada and the Philippines. Spina is a 1978 grJduate of Cumber-
land School of Law.
5555.
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Don 't let your Alabama Lawyers,
get worn, torn or thrown away. Order a binder (or Iwo) al $10.00 each from:
Warren appoi nllod 10 Harold Edw.ud Harler c h.li r Manning G. W;Hfcn. III, recerltly W.lS appointed to the Harold EdwJrd Ilarter Chalro(Commercial L..1watthe Unlver·
The AI.bama Lawyer
sity of louisville School of LilW. W,men Is a grilduate of the University of Ala· b.lma and the George W.:t~hing'on Un I· IICrslty !..lW School.
P.O. Box 41 56 Monlgomery, Al 36101
He served as law clerk 10 Uniwel Statcs District Judge Seybourn lynne; ,Ill associate with the nrm of 6l'i1dlcy, Arant, Rose & White (1974-76); a partner in the (irm
The Alabama Lawyer
Spina
or call (205) 269-1 515
253
About Members, Among Firms ABOUT MEMBERS Augustine Meaher, III, .mnoun(e<o the opening of the offlc(' of Augustine
Meaher, III, P.e. at SUit!' 2118,
Fir~t
Nmiml,lJ 8.1nk ijuilding, MohilC', AI,lbilm,l. Phone (lOS) 4 32-9971.
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Li!kl Hugsins IOll1l't'i Ihi' City of 8irmingharn'~ l,lW d('I),'Jrtlllenl .H i1n iI~\i~t,llll city ,lIlortll..'Y, bl'glnni 11K )U!w
4, 1990. TIll' I;lW dl'P,'I IIl)t.'nl 1~ 10(,It('(1 ,11 600 CIIY I tall, BlrrnlllKhalll . Alillwllil 35201. Phone (205) 2542369.
Energy Service Comp.:my, Inc. of t I Ou~Wn, Tcx<l~, on M,'\y I, 1990, ,lIld has become of counsel to the firm.
The firm's mailing addre'iS is ao,.. 2767. MobilE', AI.lbama 16652. Pholl(' (20S) 432-5521.
The firm of Powell, Puwell 8< Mc K.llhan Mln()Unce<; that C. C rant·
ham Baldwin hilS becom(' a nwmtwr of
Ih~
omce~
firm, effec;:tiV(> Mily 14. 1990. arc ,It 101 NOr!h Couon, Po.
Dr.1W('r 969, AndJlusla, AI"\),1I11.1 36420. Phone (205) 222·4103.
OM.
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Lionel C. Willlam~ i11l1l0unc('~ the rt,'lot'illion of hi\ office' 10 Suit!,! 903, Conlllll'rC(> BuildIng, 116 North ROYdl 51('('1, Mobile, AloJbJmil 36602·3600. PhOll(.' (2051 433-5703.
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AMONG FIRMS Coale, Helmsin"" l yons, Sims & leach .1IlnOJncf'~ ThaI Harwell E. Coale, Ir. , llK.lme gener,lJ COUMl'l to
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Dennis N. Bollslce illld loan V,ln Almcn of Bal ~lce & V.tn Almen In· nounce til{' lelociltion of their offi(e~, (,ftl'ClI"" July I, 1990, to 644 Soulh I\'rry STn"t't, M()IltMomery, AI,lb.lm,r 36104. rhorw (205) 2(,]·4700.
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nue. West, Suite 603, Huntsville, Alii' b:lmil 35801. Phone (205) 5301·2436.
Ritchie & Rcdil.er announcE'S Iho1I l. KrclK hil~ joined Ihe (irm. Offlce~ ilrc ilt 312 North 23rd STrl.'Ct, Birnllngham, AI.lb,II1M 35203·)878. Phone (205) 251·1288.
The IIrm of McFadden, Lyo n, Willoughby & Rouse .1nnounce~ Iho1l Do uglas L. And(.'rson ha .. become iI member of Ihe flfm. Offi(e~ afe 10catC'd ,11 n8 DOYo'IlIowner Ooulev,lfd, Mobill', AI,Il)am,1 36609.
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The firm of Ch-ary, BaUey &
McDowell, p.e. <n,nOlUlces the r('loe.llion of it~ o((jc~, as Of luly lO, 1990, to AmSouth Center, 200 Clinton Ave-
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Carlton M. Johnson, Ir., h;l~ Ix't'n nMd(>.1 ~h,ln.>hOld('r in til(' Pt·n.,.lCol,l, Fl orrd" . firm of Smith, Sau er, DeMaria, PII8h & ,ohnson. Office~ olr(.' loe.lIed o1t 316 South Bayl('n Su(.'{'t, ~ui h.' 600, Pen~.\(()I", Florido1 32501 Phone (90.j ) 414·2761. John<.on i~ ,1 ICJIl6 .1dmiH('(' to the AI,lb,lnlJ Stille
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W.lIlcr J. Price, Jr., JllnOUIl(e~ tho1t Bonnie Row(.' Bennett, formt,..rly with 1111' firm of Rich,lrd\, Llyton $, FinK"f. Wilmington, D(".1WiH~, hil ~ bt>t:orne ,l~soci<ll{'d wilh tIll' firm of Price & Bennell . lhcy 'll!.O ,IIUIOUI1Ce th(> 1(!locahon of their offj(e~ 10 200 'Alest Courl SquOHe, Suite 60, Terrace level, I iunt~vme, AI"bo1rna. 11holl{' (205) 539-7725.
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l..1uren L. Beder ,lr1nounce~ the f('o loc,llion of hN office, "Met icing UIl<lt'f the name of i.Jw O ffices of LIuren L. Becker, 10 8 leno); Pornt{" N.E" ;\t1.1Il1<l, G('(Irgiil 30124·3167. Phon(> (404) 23J.902J.
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Pelers, Lockett & Di.lot, POC. Offlce~ o1re ,II 125 W. Millrl SIreN, P.D. Bo~ 927, Dothan, AIJballlJ 36302. Pholl(.' (205) ;Ot)J·15SS.
ThQma~
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n.tllle of Ramsey & Scales, P.e. and tile iI~~o(i J'ion of I. Michtld Heml· rich, Sr., Jild Rich.lrd S. Sheldon. Officrs (Ire ilt 605 Bel Air Boul("I'uo, Suit!.! 31, r.o. Uox 160647, Mobile. Ala· bama 36616. Phone (205) <179·00·10.
The i.Jw offices of Demetrius C. Nl'Wton ,'nllounce~ that Edward E. May, formerly of 8;trrI«S, Dunning, Mny $, MIiI('r, h,lS Ix'COm(.' n partllcr in the firm, ,1I1d the firm n.Ulll' hll~ OCocn Ch,lIlR('(1 to Nt.'Wlcm & May. Offices .trt' loe.lwd ,11 Suit!.! 207, 1820 SL'VClllh A\lCIlUt:', North, 6imllllgh,1I11, Alab'lmil 35203. PhonC,' (205) 252-9203.
The firm of Cherry, C iven~, Tarver, Aldridge & Diaz ,1Ilnouncc, J mergt.'r With the firm of Peters & loclcett, Poe. The firm will opcmteunder the name of Cherry, Givens, Tdrver, Aldridge,
lhe firm of Pope, McClamry, Kil .. paTrick & Morrison ,1IlnOUIlCeo, thdt Edward H. Kellogg, Ir., p.c. hJS withdro1wn frol1lthe firm, th,lI Earle f. LasseTer, Michael L. McGlamry, SI('\Ien W. Sac(ocda, William I.
Robert S. R.lmst.'Y .md EII ~worlh P. Scales, III, ,tllrlOUIlCe the fOrm,\lIOr) of .1
profes~jonal
cO(()Qriltlon In Ihe
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September 1990
Cornwell, and I.IY F. Hirsch haw become m/.!mbers of the nrm, and thaI loan Swllt Conger ,mel Oaniel W, Sigelmoln have become .IS'iOCiated wilh Ihe firm. Ph('nlx City omce~ are .11 1',0, Box 1430, Pht·nlx City,
Alabama 368&8·1430. 296·7354,
Phon~
(205)
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The fi rm of Miller, Hdrnihon, Snider & Odorn Jnnounce~ that Richard A, Wright and Richard Y. Roberts h~ l)C(ome members of Ih~ firm, ilnd Robert Bruce Rioehilrt .1nd Robert C. lac k~on, Ir" have become JSSOCidted with Ihe firm. Mobil~ offic('s .He OIl 254 Stille Stn~I!t, 1'.0. l:Iox 46, Mobile, Alabama 36603. Phone (205) 432·1414.
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The Birmingham firm of Miglionico & Rumore "rmounce5 tha t Sherry Bro ck Mc Cowin ha s becom(' •I ~'tOCia tl.>d with the firm. Offices are IOC.lll-d ;11 1230 Brown Marx Tower. Birmingham, Alab.1mil 35203. Phone (205) 323·8957.
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The firm ofThoma s. Me.lns & Gillis, P.C., fornwrly 0/901 Soulh !-Iull Str«!t, Montgomery, "Iabama, announ ce~
Ih(' reloca tion of th('ir offices 10 3121 Zelda Court. Montgomery, Alal),1ma 36107, PhOne (2051 270-1033.
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Darrell L. C.lrlwright h.I S rl!Cilnliy joint.-d the firm of Najjar, Denaburg" Meyerson, ZarLaur, Max, Wright & Schwarll, P.C. A graduate of Tulane Unlversily School of l.lW, 'Carlwright al50 holds <In adv,lI1(:cd degree from the Univcrslty of Miami Sthool of 1..1W ill laxalion. l e~Se P. Ev., ns, III, w.1s rl.'CC!nlly n.lmcd I)artner in Ih{' firm . EvarlS i~ d gr.ldual£.' of Ihe Bimlingh.lm School 0(
L;IW. Offin..'S arc loeilted at 2125 Morris Avenue, Birmi rlglhlm, A!;lbillllJ
locdtt.,<1 ill 2205 Morris A\lCnue, Blrm· Inghal11, AI;tbJl11a 35203. Phon (205)
3520j. Phone (205) 25Q.6400.
251·6666.
Rumrell & l ohnson, P.A., announc.es thilt O. Mark Zamora h.1~ bc<:OIl1(, .111 ,lssod:ue of the finn, locale<1 at 2601 Gulf life T()W('r, ),u;ksonville, FloridJ 32201. Zamora I~ .1 ml'm\){'r of Ihe Alal),lm.l .md Florida
Meadows, MeadO'WS & Lillielon Ih.u Patricia W. Hall ha ~ joine<lthe firm, Jr)d the !IJl11e of thl' firlll h"s been changed 10 Meadows, Lillielon & Hall. Offices Me OIl 955 Downlowncr Boulevard, Sulle 107, Mobrle, Alah..lma 36609, Phone (205) 343·7717.
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~talc b.lri.
• al' noun c:c~
thai Todd N. Hamillon has b('l,;omc ,.Ill .Issod.lte of thc firm, Offices arc loe.lled at 2000 Fir<;t Avenue, North, Sui\(! 1212, Brown Mar). Towers, Birm· InghJn1, AI.11)<lma 35203. Phone (205) 25 1·2555. Smith & Taylor
•
R.O. Hughes ilnd Oavid S, Maxey annourlCe Ihe formation of Hughes & Man")" .lnd Ihal Adam...., . Porter and Frederick M. Garfit'ld h.~ bt.'comc iw.oeiated with the nrm. Offlct'S ,ue located at 400 Palk PI..ce TO'M:!r, Birmingham, AlabamJ 35203. Phon(' (205) 323·0010.
•
Hill, Hili, Carler, Frdnco, Cole & Black, P.C. announces Ih .. 1 Terry A. Sidt's h,, ~ Ix'Comc il l)<lfttler in Ihe nrm and Ihm the Hono rdb le Richard L. Holmes (retired) hM lK'(ome of coulJwl 10 the firm . Office~ Jrc loc<JIcd al Ihe liill BuildlnK. 73 Wa~ hlnglon Avenue, 1'. 0. Box 116, Monlgomery, Alab~rn.l 36101· 0116. Phon(' (20S) 834-7600.
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TIl(' firm of Luker & Brewer announces Ih.'1 Jeffrey O. Bramer has Ixocornl' an i\~sociille of the firm ,
•
announCe~
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Wi1ll.lm H. Pickering, formerl~' with Bilkh & Binghilm in Birmingham, has been elecled president of Ihe Ch,}IIanooij" aar Associ ation . Plckerlnij is d partner in Ihe Ch.lllanoogil firm of Chambliss & Bahner, and 1);15 l)r,l(;liced with thm firm since (CtUtrllllg to Chall,1I1OOIP In 1979.
•
The firm of Bland, Bland & H,mis and 111(' firm of Battles & McClellan announce Ihal Ihe fi rms merHl.od, effective July 1, 1990, and Ihe nCW firm shJII be known as Bland, BaUIK, Harris & McClellan. O{fices will be IOC,ltl.,<1<II ·105 Second Avenue, S,W., Cullman, AI"bama, wilh a mailinij address of 1'.0. Drav.'Cf O. CuUm,ln, Alabama 35056. PhOne (20S) 734·" 040.
•
The law Officl'$ of W. Eugene Rulledge & Associolles ilnnounCe5 1he reloc.lllon of its office~, eff<.'<:l iVl! july 2, 1990, 10 O"C I-tlghland Place, 2151 I tiKhlilnd Avenue, SuIte 300, Binning· ham, Alab"m;1 35205. Phone (205) 930-0311.
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255
Albritton" Givhan & Clifton, Anda. lusia, Alabama, announces that WiI· liam 8. Alvel1()n, Jr., hM become ;"l associate ""Ith the firm. O((Jces arc ,It 109 Opp Avenue. P.O. Drawcr 880, Andalusia, AI"bama 36420·0880. Phone (20S) 222·3177.
•
UghHool, Franklin, While & Lucas announces Ihat William S. Cox, III, formerly with l atham & Watkins In San Diego, C.llifornia, has joined the firm as an associ"te, Cox received hi s law degree frol11 the University of Virgini<l School of l,1W in 1966. Offke~ are ilt 300 Fin,mdi"l l Cc:nter, 505 20th Street. North, Birmingham, Alabama 35203·2706. Phone (205) 581·0700.
•
Gary P. Smilh and Chrislopher A. Smilh "nnouncE.' the formillion of a parl ilershipof Smilh & Smilh located ilt 211 South Ct.'<Iar Street. Florence, Alilba,n.l 35630. Phone (205) 7675021.
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The firm of Mclnnish & Brighl, P.C., anr'lOunces Ihe relocation of its offices 10 235 Soulh McDonough St r~I, P.O. Box 52, Montgomery, Alabama 36104. Phone (205) 263·0:l03.
Arlie D. Prite and ROOger K. Srannum ,mnounce the opening of their I,tw offi ce located on thl'! second fl oor of the R.lwls BlIUdlng In En!!.'r· prise, AlabJmil . The mailing addres5 will be P.O. Drawer 1580, F. nterpri ~, AlabilmJ 36331-15BO. Phone (205)
Be,uley, Wilson, Allen, Mendelsohn & Jemison, P.e. announces that Marl.: J. William ~, former law derk to Alabilma Supreme Court Justice H. Mark Kennl..>dy, bt'(imle associated with the firm, effectiw July I, 1990. Offi ces arc Jt 207 t.1ontgomery Street, 10th Floor, Bell Bui lding. r.o. Box 4160, Montgomery, Al.lbJma 36103· 4160. Phone (205) 269·2 3<13.
393-2 532.
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louis C. Rutland and Bradley S. Braswell ,1nnounce the formation of i1 p<lrtner5hip under the rmme of Rutland & BrMwell, with offi ce ~ 10call..>(1 at 20a Nonh Prairie Streel, P.O Box 108, Union Springs, AlabJma 36089. Phone (205) 738-4770.
•
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lohn O. Gleissner .,n(l Herberl B. Sparks, Jr,• •1nnounce the <lssociJtion of Allen R. Trippeer, Jr., with The \..l W Offi ces of John D. Gleissner, 1200 Corpor.l1(! Dri~, Suit!! 105, '.1emlow Brook COrpordt(! PiJrk, Ilinr lnghmn, Alabama 35242. Phone (205) 995· 1713.
•
The firm of Smit h & Taylor announces that Todd HamillQn ha~ b<!come as!)OCii1l(.'1:1 with tnc firm. Offices am IOCJICd ill Suite 1212, Brown Marx Tower, Birmingham, Ala· bama 35203. Phone (205) 25--2555.•
W E SAVE YOUR
TIME . ..
ameli L E G A L R esea r c h
Now leS:11research nSSiSI(lilCe is Ilvuilnble when you need il. without the:: necessity of add ing 11 fu ll·lime nssocime or clerk .
With ,Ieecss to Ihe S t ~ te Luw Libmry lind Wesll:lw. we provide rtl ~ t and efficient scrvi(;c. I~Of dendline work. we cun deliver informal Ion 10 you v j~ COmmon currier, Fedcml ElCPrcSS. or FAX. Farnell Leg~ 1 Reseurc h elC umincs the I ~suc~ thoroughly lhrouSh (IUaIlIY research, brief writing nnd unnlysis. ru tes nre $35.00 J)Cr hour. with II three hour minimum .
O Uf
NOTICE The Alabama Supreme Coun, on May 31, 1990, issued an Order adopting the Alabama Rules of Crimi na l Procedure, to be effective January 1, 199 1. A complete publication of those ne w rule s witl appear in the So.2d advance sheet issued on or about June 28, 1990. That i:ldvi:ltlce 5heel will be a " Special Alabama Edi tion," i:lnd West Publ ishing Company will ma il that ed itiorl 10 lis advance sheet subscribers with Alabama mailing addresses, Before the effective date of those rules, Ihe full text sho uld be avalli:lble in i:l supple ment to West's 1990 AI<lb<lm<l Rules of Court pamphlet, in a Michie replacement Volumes 23 of the Alilbama Code, and in Alabama Reporter.
For Resc<l rch Assista nce con lnct: Sarah Kath ryn Fa rn e ll
'11 2 Moore Building Montgome ry, AL 36104
George Earl Smith Reporter o f Decisions Alabama AppeJli\te Courls
Call (205) 277-7937
September 1990
ALABAMA STATE BAR 1990-91 DUES NOTICE (All Alabama artorney oc(upationallicense and special expire September 30, 1990) membe~hips
Annual License-Special Membership Dues Due October 1, 1990 Delinquent after October 31, 1990
*
Special Member
">.lid directly to the ",Iilbama Siol le Har)
Llcrnse (purchased through the county of prim;uy prilclice) If you are i1dmitt!!d 10 the Alilbama Sliltc Bar and engaged in the pr<lCllCC of law, you art' re(tuired to purchase an annual 0(cupal lorlal license. Section 40.12.49, Code of Alitbama (1975), as amended. This license gives you the right to practice law In the state of Alabama through Sel)tcmbef 30, 1991. The cost of the licensc is $150, 1)lu5 the counlY's nominal issuance fee, and is purchased from tho probaw judge or Ikense commissioner (where al)pl1cable) In the coun ty In which you primarily l)raCtice. In addition to tne stall! lic('nse, all pracl1dng attorneys should check with their municipal rcvcnue departments to be sure that the licensing requirements of the city or town arc also being mel. Please send the Alabama Stille Bill a c:oP't' of the license when It Is purchased and you will receive a wallet-sile duplicate of your license (plClured aboYel (or Identification pur· poses during the 199().1991 license year,
Sp!..ocial membership status i5 acquired pursuant to Section 3....3-17 Or 5c(lion 34-)·18, Code 01 Alabama (1975), as lllTll.>ntled. Federal al)(f SI.lIC Judges. district anorneys. United 51011(>5 attorneys and other gO'lCrnmcnl allorneys who arc prohibited from practicing privately by virluc of their 1>051110ns are eligible (or Ihis membership WIIU5. likewi5C, persons admiued to the bar of Alabama who are nOl cn83800 In Ihc practice of law or are employed In a poshlon nOI otherwise t'C<lulring a license are eligible to be special members. Anorneys admiUed 10 the IxIr of AI,IIJ,.l ma who reside outside the Slate of Alabama who do nol practice in Ihe Slille o( Alabama al!:Kl arc eli gible (or this slalus, \I\~ !h !he eXCCI)!iOn of Slilto attorneys and di striCI alll)rrlf,.'ys, ilnd those who hold a license lit l'Iny timo during the bar year, special members are exempt (rom mandil10ry con tinuing legal education requirement s: hov.'C'lCr, this annu~1 eXeml)t1on must be claimed on the reporting form. Spedal membership dues are I)aid dirL'Ctly to the Alabama State 8ar, In the L'\ICl1t you enter the practice of law during the bar year, which necessitatcs the purchase of an occupation liCt!nse, these dues are not rrlundilblc <lfter December 31, 1990, and no credit will be glycn (or paymenl of special membership dues, Mcmbershil) C<lrds. <IS slwJ.vn in the sample 3i)Qve, are issued upon receipt of tne dues imd are good for the license year. Special membership dues all! $75.
Dues include $15 annual subscrintion to The Alab.lma Llwyer. (This subscription cannot be deducted (rom the dues payment.)
If you haYe any questi ons regarding your prOPer membership st<ltus or dues p.lyment, 1)lc;lse contact Alice 10 Hendrix, membership serYlces din.'ctor, ill (205) 269·1515 or 1·800·392-5660 (in-Slate WA1S),
The Alabam.l Lawyer
2S7
Consultant's Corner The following Is a review of and commentary on an office automation Issue tha i has c urrent imporlance to Ihe lexal
community, prepared by the office aut~ malion consultant to the stale bar, Polul
as well too. Do not be misled. You h3Ve to get In your billable hours like any other successful practitioner, bul you do not hllYC 10 log 2,000 0 1 more per year just 10 earn an appropriate Income, like your urban counierparts.
Bomstein, whose vltwS art not neeHu ril y those of the Iiale bar. This is the seventeenth article in our
"Consultant', Corner" ~ti('i. We would like 10 hear from you, both in crlUque
of the article written ilnd suggestions of IOplcs for future articles.
The rural law firm-what lies aheadl Rural lnw firms, principally solo prncIl-
lioners, are at it crossroads In the '90s, an:dous aboot their viability and coo· ccmed about their clients. Thai dilemma
The lifestyle You (almost) aUlomatically bocome a key person In the community. Along wilh the school principal, the bankers, clergy ;md doctors, you arc the community leaders. You are expected 10 serve orl the local United Way committee, the high school booster'$, civic associations, church go.<!ming boords, chambcfS of commerce and county d~lopment autnorities.
will resol~ itself if they can merge their concernS. Rural pfaCtlce and concern (or
clients is a formula for SUCCt.>s$ In lhe '9Os. Unlike the urban scene wi th liSdramatic
demographic changes, Ihc rural scene will remilln essentially uncharlgoo for the decade and offer liS practitioners an un· common opportunity to prosper and be piliafS of their communities. There Is a
cOt'lnection. The practice Legal pr.tCtice in a ru",1 ilreCl is much like rural mooic.,1 praClice-;ou hiWC to be a Jack of most tl"oIdes, but nOt all. You will be expected to become! expert in tr;mSllctlon oriented law, real estille closIngs (including occasional huge agricul. tuml parcels), wills and probate, famUy law, some civilli~giltion and a bit of (rim. inal defense work (often court·assigned). MatlCtS under the jurisdiClion of a federa l court arc usually refurl't!d to a I~r in an urban art'll hdYlng a federal court, so you generally will not beconle rnvo l~ in ta x and bankruplty cases. The hours are civil ized, on the order of 6 :30 10 5:30. The smalilowns gener;l lly "close up" al SUPl)(.!r time, so you might
258
Bornstein
Political office is more readily an.alnable than In urban areas, be It county commissions, ITliJ)Ofalties Of ~te representati\eS. The net eamlrtgs arc on the order of twothirds Ihm of an urban lawyer. oollhe Cost of living Is much less In a rural area than an urban onc.
The connection Un like your urban counterp.1rt, who h.as two sets of associations, clients and a circle of friends, )(ltJ h~ Just one. Your clients are )(ltJr circle 01 friends and ac· quaintances. You go to church wilh your Clients. you scrve on commi" ees with your clients and )<IUr children go to school wlth ch lld~ of)OUr clien ts. Your clients are your JlCjghbo~ Reciprocally, rural clients t~ to be much more IOY,11 to their lawyer Ihan urban clients. They tend to be more settled and gi~n to generational IOYil lties. Whereas an urb.ln lawyer might fret a good deal about his or her Yellow Page listing. a rurnllawycr frt.>tS m()r(! about real estate title chains. The challenge One does not simply mcM} 10 a small town, hilng 001 a shingle and wall for the clients to call. Most successful rural Iav.-yers pr.lClice in tnc towns where they 'M':!re ,..iscd. Some apl)ly to associate with arl cstabllshed l)r.lCIi tioncr, often an older person who set.'S retirement In the next len ~ars or so. Younger ruml lawyers often will resist t.lklng on alsoclates, fcar· ing thaI today's associate will be tomar· «:A'Is competitor. A rum! 1<M')Cr's spouse (male! or rcmaic) muSI be OO{lpl{lble to rural life for the practitioner 10 be successful. in I'M><.lreer families, finding a sultl'lblc stuation for the spouse can be a real problem. Sure, some rural counties arc losing population to the uroon areas where jobs are percelK'd to be more picntlful. None. theless. JUIlJI popul(ltions are more stable lhan urb.ln ones, which translates to ~JUra l clientele are most stable Ih.TI urb.ln ones.~ This is the ~lUlnc attraction of JUfill practice, 10 develop and nurture long·tenn client relationships In a setting of Interdependence. You have to like doing business with friends and )OU have to be an exceptionallBWYCr to keep both your clients and ~ur friends, since they are one arId the same. •
Sc~embc(
1990
Request For Consulting Services Office Automation Consulting Program
SCHEDULE Of FEES, TERMS AND CONDITION S
., .'"""""
,
DII'.lloo路路
f i,m Sit.,'
,
1 d;ry.
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' Numl,.., <>J I..... ~ '\ onl v I~" judlng 01 ( OUIlit'11 " Du '~l iol\
,ciers 10 Ihe pl. fllI\'II
.0(1 d()C.'llI() l
lnclud\l li m ~
In hll (>Nn 011,(<: wh,l"
on.p~m"e
IImil
lpenl by Ih~ ~ anwl l .lnl
p", p ~rI~g
dOCunlcnl.lI ,()n
,]rI(j If'{Omme OOdfil)nI
REQUEST FOR CONSUlTING SERVICES OFFICE AUTOM ATION CON SUlTING PROGRAM
5pon$Qred by ALlbama State Bar
THE FIRM
ITS PRACTICE Practice Areas (%o j
Li tigation
M,lfi l im~
Corporate
R~al E~t.11e
Colleclions
l"bor
r"
Estate PIJ ll11 lng Banking
Number of cl l e n r ~ nilndloo annually :-;======
Nllmbcr of ma n cr~ handled annuilily
Number of man(!r~ How oile" do you
prese,,":,~'y:...<C0~":'"======
bill r _
EQU IPMENT
(!qUil~"J'~"~",~(if~'~"~Y~)~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
Data proc~ ssin8 equlpm~m (If any) Dictation ~qulpmelll (If any) 'Word pruces$inl:l Copy equlpmenl (If any) Telephone equipment
PIWGRAM % of l'mph'}!I搂 desired
MOl in, Audit
WP Needs An.ll ysis
Preferred !iml! (1) w /E _____________ _
Dr Needs Anillysis (2) W/E _ __ _ _ _ _ _ _ _ __
Mail this reque st for sNvl c~ 10 Ihe AI(lbam(l Stille BlIr for scheduling, Send 10 Ihe anenlion of MargarcI Boonc, executive assistanl, Alabama SIJle Bar, PoD. Box 671, Monlgomery, Alabamil 36101. The Alabama Lll wyer
259
Building Alabama's Courthouses by Samuel A. Rum or!,', Jr.
The (ollowinHcontinues a history of Alabama's counly courthuuses-thelr ori路 gins and som(> of Ih(> p('ople who con路 tributed to the ir growth. Til e Afllbltnla I..1wye r 1)lans to run one count y'S story
in each issue of the magazine. If you have ,lilYphotographs of c1Irl y or prese nt courthouses, please forward them
to: Silm(J~1 A. Rum o re,
Jr.
M iglion lco & Run10rc
1230 Brown
M n r~
Tower
Birlll l11ghJ m, Ala bamil 3520 3
Etowah County
Etowah County Is Ihc smallest county In the st:nc of Alabama, with less Ihan 540 ~uare m!!e~, It is also a rei,uively young county, having been establi shed after the Civil War, but it has
11
rh::h
history. In NO\Iember 1866, Ihe first post-war lCKislalure in Ala bllrl\ll cOIl\'Cned In Montgomery. A slate senator (rom Cher路 okee County presented a petition from residents of Cherokee, CJlhoun, St. CIJir, Blount, Mal'5hJII and DcKalb counties asking for the form\ili ()n of a rif....... COurlly in Iheir Jrea. On Dcccmber 7, 1866, Baine County wa screa ted from larld taken {rOrn the six listed counties. David William Baine was a young Alabama leader whose life was cut short by the Civil War. A native of Ohio, BJine came to Al abam<l in 1646 ilnd settled a l Centre in Cherokee County as a leacher. He studied I;JW al the offr<;c of ThOmas E. Cooper in Centre and was admitted to Ihe bar In 1655. In 1856 6alne and his family moved 10 Hayneville in l owndes County. He became a succeu fullJwyer and rose to politicill prominence. Biline Wil~ a delegate to the Democratic National Convent ion wh ich con\'Cned in Chariest01l, South Carolina. In
260
May 1860. He left thi ~ convention, where St('phcn A. Oouglils W,15 nominmed, and attended In(tci'ld d new convention organized by Southern di$sldcnls ;'Ind held in Richmond, Vlrglr)la. TIMt convention nominatcdJohn C. 81'1.'Ckemidge for president. When Abraham Lincoln ultimately was eli..>(led pre~idcnt, Baine supported Alabama's dl..'c i sion to secede from the Unicm, f In the fall of 1861, 8aintl rtlturncd to Rlchmo'1d .1Sil IiCuiCniln1 colonel of thc 14th Alabamil Infilrllry Reglnlerlt. On June 30, 1862, he led his men In an attilck (It Ff(l1.ier's Farm durlnglhc "Seven Days Sf ule" near Richmond. There he wllSStruck by a minie ball ilnd died on the b<llllefield. Bainc Wi:l ~ Ilnly 32 yea,.. old when he died. I'le was buried ill Hollywood Cemetery in Richmond. When the Ar<lb<lma Lcgisr<lture Creill(o(l the requested county in 1866, th(' Speaker of the Home wa s Thomas B. Cooper, the same man who hild trained David Biline 10 be a I<rNyer. He suggcsted that the new county be namL,<1 for Baine, his young I)(otege from yt!ar'; before. Tre first COurt was beld in Baille COllrlty q>ctober 7, 1867. The site wa s thl.' First Baptisl Church of Gadsden, located ill FUth .1I1d Broad S1reet~. j}ilin(' County existed les~ th.1O one year. R.. dic(li politi(;;i"ns throughoutlhe South systemdti cally nullified lilw5 l)a~$(.>d bY I)r'OIIisillnal gCM.'!rrlnlent~ In the seceding states, indudlnglhe law whi ch crea ted Baine Count)'. That law bc<:.. me a larget because the rlarll e "B.1ine" Wr:l~ controvel'5iill since it mernorialiled il secessionist born ir the North wllil (ou ~ht ilnd rlk>d for the South. The county was ilbolished D~c~ber 3. 1867. On December 1. 1668, the law abolishing Baine County w~ s repealed . Once fl'-Cstablished. the county W,l S given a neW name of EtOW.1h . This name was supposedly d(>riYl,.'(1 from the Cherokee word "ITAWA" which means "strong trt.'<!;' or Hwcll-bc<lri r18 tree." CertJinly this rl3r1l\'! sparked no Corllrovcrsy.
Gadsden, the county seJI of Elowah County, also hM an intere;ting story behind it~ rmme. Early settle? in the region first called the community "Double Sprinl:l~" 1)l'Cau~e of the two springs loe.lted iltthe sile. Itl 1646, Gabriel and
Jmcph I lughes of North Cilrol \nil, together with John S. MQmgn(' of Charleston, South Caronna, purcha~l-'d I~nd in the arca to I<lY out formdl 5trC(!t and blocks (or a town. A perwnil! friend of Morilgn~ WilS j(lmcs O. G(ldsden, ,1 fellow South C.1,0Iini(ln. C(ldsden h.l(-I served in Alabar'a with Andr"."w Jathon durinl:lth(' Creck Indian War. l ie later beCdrne Jachon's
Sam cl A. Rumor('. Jr. , ;5 ,1 of rile Univer);t)' NOire illllle .111d tile Universit y of Aiab/rllJ,l School of (,1W. /-Ic served a ~ founding clwlr/>CflOn 01 tll c A/,l /ul m,l SI<1Ie HM's F,lmily L<lI I' Section .1 11d is 111 pra(llcc In Illrmin8h(lm with rile firm of Migllonico & Rumore. Rumore was recenrly elecred 10 serve as the bar commiss ioner for th u IOlh Cirevif, place no. four.
or
September 1990
1 . l n n l •• 11
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ErC)'IoV,lh County Courthouse aide In the Seminole Indian War and played a leading role in remQ'.'ing rh(l
Seminoles to soulhNn Florida. Colonel Gadsden became president of thc South Carolina Canal and R.lilroad Company. He visited his friend MOfilgne in Alabama, On this visit he W<lS SO im. l)fCSsed by the naMal beauty of the area and the advantages of a location on the Coos.1 River thm he prodiCled a great city would one day emerge there. The founders were so appreciative 0( this prodiction, and the encouragement of
Cadwen, Ihlll they decided to nome their town In his honor.
James Gadsden was ta!cr appointed Iyt' President Franklin Pierce to 5er.oe as Mill> Isu~r to Mexico. He negotiated the pur· chase of land for Ihc construction of a
railroad nne through the southern pariS
of present-day Arizona and New Mexico. Th is acquisi tion lor ten million dollars tOOk pl<lce in 1854 and is kn(MIn in his-
tory as "The
Gadsd~n
The Alabama Lawyer
Pvrchase:'
Thc nrst courthouse In Et(MI;!h County was constructed by Colonel R.ll Kyle and Major W.P. Hollingsworth. The con· tmc! for the building was let on Decem· ber 6, 1869. It W(lS completed about a year latcr and cost S12,990. Thc building W(lS" red brick struc!ure, two StOries in height, of Colonial design, and located between Brood and Locust streets In Gadsden , It had four whitc col· umns In (ront wi th a 5mali lron·rall b..,I· cony under its portico. From hcre a bailiff could call witnesses on the courthouse ijfounds to tcstify when their time came In court. A gr~ of trOOs surroundl.'(i Ihe building. When thc county outgrew this struc· lure, a proposal was made 10 build a Il(.W courthouse in Attalla, With a tie VOIC on the county governing tnc body, Judge JA Tallman broke Ihe lie and voted 10 keep the courthouse in G~d sd en . It has remained there (!VCr since,
In 1890 thi s courthouse was razed In order to make room for" larger building at the samt! slt(o, This second courthouse was three stories in height and contained an Impressive five-story clock tower. Its style was Romanesquc. An addition was madc to :hls courthouse during 1926027. As early as 1938 plans v.ere made for a new courthouse in Gadsden. Public VVorks Administmtion money was ilPO p~, but local funding wa s not forth· coming. Finolly in 1949, construction bt.'g.,n On thc third Et(MIah County Courthou$C. The architect WJ S Paul W. Hofferbert, ;md the contractor was J.F. l-lolley. This build· ing cost ;approximately one million dol· Iilrs, ilnd W<lS dedicated In July 1950. II still serves as the courthouse of Ela.vah County. Thc author th;anks G;adsden aUornC!)' HCI'oYard 8. W.lfren for obtaining research m:neriills used In the prcp;ar.ltion of thi s article. •
26'
1990 Annual Meeting Highlights Mobile, Alabama A,/. Co/cm,ln (Dcc.uur), William B. Mill-
AI,lbJl'llcl StilI(' BJr Commissioners
Ihews fOz,uk} ;.mclBob F,lUlk (Prallvil/e)
N~jJ JohnSlOn (Mobile} presents plaque 10
Craig Knel)(,·J (Monlsomery}
fo,
ou151.1ndin8 scrvICe as 1989.90 dJ.llr, En· yironmenldl Law Secl/on.
2.2
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•
AI Vreeland (TU$Cd/oo.a), 1989·90 chilir, Ac/m;n;Slrative LlN secl lon
September 1990
Bruce Ely (Tu$(,l/ooSd), luaah McMIllIn (Mobilc), Roy Crawford (Blrm;nshaml. 1989.90 chair, Td.... tlOll St'QIOIl, .md lim Sizemore (MOntgomery), commIssioner 01 revenue
Don Slcse/man (Montsomcry), Und.l Friedman (Birmill8ham), 1989路90 chair, Business Torts & Antitrust /..:Iw Sect/on, anel Terry Calv'l1'i (WHhlnswn, D.C.), commissioner, Federal Trade Com路 mission
Gl'orge F;nkbohner, president, MobIle Bar AsSOCMtIQn, Dean Iohn 'Wc>d (WilYne Sfclle UnlVt'r~IIY lAw SchOQI, lkuoiO, Bench & Bal luncheon f>pt'aker, and ASB President A/v'] C. Caine, Bllmmgham
The A/abam<l Ldwycr
Han.
Sonny
Hornsby, Tallassee
Alva Caine and Non . loseph Phelps (Monlgomery), 1989-90Iudiclal Award of Merit recipient
Beth M."lelta-Lyons (Mobile), member, A/iJbam.l House of Rep. resen!<llivcs, and Pt.'nny Davis (Tuscaloosa), assistant dirC.'CIOI', A/,l0.1ma L1W InsllluW
)bung Lawyers' Secl/on OfficeN: (front) limy Slayden (Hunt sStcvt' Emens (Tus,aloosa), di'~lor, 118/Clf, and ChiJmp Lyons (Mobile), recipient oIl'1t.l/fCr P. Gewin award
ville).
(bddJ Keilh Nortndn (MOn/gomcry),
~rcy
8..1dham (Birm-
ingham), jamcsllndcrson (Monlgomery), Sid /dcbon (Mobile), and l.t.>s Ilayes (MOnfgomery)
PMt Presic/cntS, ASB (front) 8/11 rla/hion (Birmingham), Waher Byars (Monlgomcry), lim NOrth (Birmingham), Bill ScruS8s (Fori Pa)m('), and Bt'n I-Iarris (Mobile). /ooek) /. Ed Tllornlon (Mobile), Drew ~dden (Birmingham), Sonny Hornsby (T.l/1assce), O akll:y Melloll (Montgomery), E.r: Bmwn (BJrmJrlg/ltJm), alld Norborne Slolle (Mobile)
Dr. Philip Austin (Tuscaloost!). eho1/Kello(, Universlly of Alilbaltla System
/'Ion. William BOI\I(ln /MOnlsomery) and Hon. Mark Kennedy (MOntgomery)
'6'
5epwm/H:r 1990
80b InlJr,lm (MorJIgomcry), m.Wcr nishI's po/ilk'" rally
Preslden! Caine Non Ihe Sl ump"
E/('Ilnor, K/Ilherl~, Elil.lbclh, lind
Alva Caine, Jr.
Hon , Charles Thigpen (C~nsboro), clJndidalc, court appeals
The Alabama LawYl'f
of cercmonies
ill Friday
Han. B./. Russell (MomSomcry), cand/dille, coun 01civil appeals
of civil
Billy Joe Camp (Monlgomcry), candldalC, SCCfCiary of Slale
265
I-Ion. Kenne rh Ingram (Monrgomery), candidare, associare iusrice, Alabama Supreme Cour!
Jimmy Evans (Mo/1lsomcry), CiJndid,l IC, allorn('y generill
Spencer Bachus (Birmingham), caneJidarc, arrorney gencr'll
Bill Cab.lniU /MounliJi n Brook), Cilndicktrc, U,S. SeniICe
'H, ' ,.J ' RUSSELL .. JUDGE ..
CIVrl AI'fI£ALS
Howell Heflin (Tuscumbia), candld.lre, u.s. Sen.:lle
2••
Fr;d.1Y ni8hr '5 cnlcrl.l;nmcnr, "The Skunk A:u('y Band" Seplembcr 1990
P,wl /1ulJ~rl (Montgomcry), GJnellcialr, 80vcmQr of A/,11J,lnJ;J
Nowell Nefli" I路/on . Griffin Bell Mrlanl.l), formcr U.s, AUomey Gt'nf'riJ/, IliJmld Albrluon (Ane/alusia), Ben 1/,1rriI, Jnd Re8Sle H,1mnt'f (MOI1l80mCry)
Pr(>sldcm (mne presenu
g.lVe/IO incomlns .... SB Presldem W
Harold A/brlUon, 11/
For SO years of mcmiJcrship In Ihe sr"Ie b.1r, cerllflcllles were We5Cnlc(lIO: (I.r) Cecil ChIlSon (Foley!, W, Oew/II Reams IMobile), Kenneth Coapt....- (/Jay MillCtlt<), Mil/colm L. Wheelt'r fBirnJlngh,1m}, Roberl S/m WII/)anks, Jr. (II/('x;mdcr Cil y), and Joe 1-/ ,
Bynum (S.lIIJltnah, CCO'S/d).
I Harold ....Ibrmon,
president, Phil Mams (Opt'lIka),
prt:'S;C/(.'nI-
('Ipc/, ilncl A/Vii Cline, ,mmcd,ale PilS/ presic/cnl The Alabama L/lwyer
'07
Stand Up'-A Lawyer's Passin' by John W. Reed , Bench and Bar Luncheon Speaker
July 19, 1990 Ala bama Siale Ba r Annual Meeting Mobile, Alabama ThUilk you for "our genNQUS hOSI)it<l!i. 'y. It has been said that ,) professo r is d person who would look like a fOf'(!igncr in any limd, but you h,we made nle f~1 'v'I:!ry much ilt home here In Mobile. To come to Alabama has special mear)· Ing for me because of)01Jf leg<ll heritage. Even as a young 11M' studcn1 I learned that your bar associmiol1 was the nali on's first to adopt C;'HlOr)Sof ethics, which influence us all N!n 10 Ihls day. I have always believed Hugo Black's name is one 10 conjure with. Near and dear 10 my heart is Harper lee's "To Kill a Mock· Ingbird." And, on iI higher intellectual
level, I hiM! a colle<;lion of Howell Heflin's "No-TIc t1awklns" stories. AI;!_ bamn has enriched my life. As I was preparing to come here, one of my colleagues at Wayne SI.lte Unj~r· sity called my anentlon 10 a lurn-of-the-century passage in the long-defunct Am('rican 1..11V Review, It was the notice of the death of tha! grea! Michlg.:lO ludge, Thomils M. Coolw. Spe:JKing of the M lchlg:1t1 SUll reme Court in the two dl'Cades after Ihe Ovil War, when Cooley sat, the writer said, ''W!1 doubt whether Ihe IMlchig.ln] c(Jure, as It then existed, h.ld an equal among American st.lte courts outside of Massachuscns, unless It could be found in the Supreme Court of Alab:lm,l, long the r,mking court in the Soulh;' luuSI you will allaN me the pride of that association betwccn my Michigan and ~ur Alabama. Of course, judges then were surer about ~rylhlng Ihan judges n(MI are about anything. My Orst vlsllto your state, other than as a touriSI, was about 20 ye<lfS ago, to 1>.1rl idpale in a judlclaltrJinlng program atlhe UnlV(!rsity of AI<lbama L.1W School, arranged by a man whom some of yell kn(MI: Douglas Lanford. In Ihesc later years I h;we gOllen 10 know a number of your rinest lav.ryels and judges through ,1n organization ~nown as the Interna· 268
tlonal Society of Barristers, which I have the honor to serve as edllor and administrative sccret;lry, Alex Newlon was Ihe president when I was ai>l)Olnted Its editor, and I have aTtended three of his nrm's annual n:tr!;!at s. Other Alabama b,.rrlslCrs I have gotten 10 know Indude W.l ller GyMS {like Alex, n formN pr!!sident), Dick Bounds, Alva Caine, the ROOcrt CunnlnghaOls, scnlor arId junior, "Brother" Hare, the Irrepressible Billy McDaniel, and some of your judges: Chief Justice Horn ~by {right there is a cullUral dlff(Jrence: in Michlg<ln, we wouldn't dare call ourchlef justice "Sonny") l udg!! I·tow<lrd. And I cannot fall to 1>"1)' homage to thl! memory of Bob V.lIlce. I mourn with }'Ou the loss of this great m'ln. We have-all of u ~/x'@n diminished by his dcath, t am I)rivi leged to know these di Stinguished judges and lawyers: through knowing them I IHlvc come to have great reg.l rd for the bench and b,1r of Alabama. And so I am honor(.'(! to be your guest arid yeor 5pe.lker at this Significant meeting. It is particularly good to have so many judges ncre, Wilh both trial and appellate judges present, I am reminded of Justice Scalia's Mil logy to ;lncient wMfare: Triill judges, he S<I)'S, preside over the b.lllle on Ihe plain. Appellate ,udges are a tribe who lives In the hilb ilnd ridl'S dl7>Yn after the baule and shoots the survi~1'S. Supreme Court justices arc like COurt of ,lppcals judges, except tha t they have less compunction Md ~hoot the women and children as VIltlII. I was about to s..ly thaI it is an honor for us lawyerS \Q ml'f.!t wilh Your Honors, BUI then I rcmemOcrt"C:l the late Skelly Wright's account of the time he was presiding over .l lriJI In Mhsissippi federal court, and he noticed that Ihe lawyers kept addressing the witness as "Colonel:' When they wcre about to break for i\ r\;!Ccss, he a~ked the witness what his military service had been . The witness replied Ihat he h.Kln't been in lhe army, thill "colonel" was Just a title that the gO\lCrnor bestOY>'Cd on some of his political supporters. He said to Judge
Wright, "It don't really mean nothing; It's JUSt like when the lawyers call you 'Your Honor," A moment ago I chal(\cl(!rl zed this as a signincant meeting. I say that 1)CC;lUse you who arc lawyers and you who are Judges have decided to resume meelinK logether periodically to eKpress your views and share your concerns and work together on your mutual problems, Our profession will serve the public Inter~t well ooly if all elements of the professioo join together to address its problems and 10 fashion a continuously eo.olvlng vision of Its future, Any eK~rl called In 10 advise you about inlprovlng AlalMma's juslice systcm wlU sound a little like II counsellor speaking to II ftusband and wife whose marriage is lilnguishlng- at the oulSCt he will say, "To begin with, you'\t'C got to learn to communicate better." This year's state bar nll.'cting. keynoted by this lunchl'On, suggests the beginning of a new era of communication, of cooperation between your bench and bar In finding wiser ways to secure to the people of Alabama the blessings of equal justice under law. We've 801 to concede, 01course, that not all COmmunication Is good, Ihal success Is nOt assured ~n though you com. mUI,lcate more, iust as some marriages cannOI be saved by better communication. Indeed, the quality, the clarity of communication, varies widely In different settings. A few years a~, a furniture s.,IL'Sman from Gr,md Itmlds, on his first tdl) to I).uls, 5:11 In a sidewalk cilfe, walch· Ing a pretty woman .11 another table. Since he spoke no French, he .Isked the waiter to give her a note. On It he had drawn a picture of II wlnl! ool1le. She nodded and smiled, and he sent a bot· tie of wine 10 her tilble. .... fter drinking some of the wine, she askl'd Ihe wailer for IWI')(!r and pencil. On it, she drew a picture of I\ brass bt."C:1 .md sent it 10 Ihe sillcsn1111l. And, you know, 10 this day he can't figure out how she knew he was a furniture sal~man. I kIlOYo' not how effectively you l;w.<yers and judges ar!;! communicating with each other. You may or may not be able
SeplCmber 1990
10 fashion new efficiencies; )'Qu may or
may nOI be able to devise procedures Ihat l)rOOUCe fairer rt.'Sults-wha t ~me ont.! c.1IIl'fl "a juslCr justice, a molt! lawful law:' But o ne thing seems CCl'Illir\; the chances for mar~cd ImproYCment are al. most nil if)'Qu do not engage in candid, thougillfu l, earnes t communic alion about the mutual problems of bench and bar, of judge and l~r. Tha t you al~ar to hlllll! begun th~t process anew Is surely caus!! for rcJolcl ng-cause for optimism, for hOI)!! thm Al llbamll's legal profession Is abou t to move to higher level s of service and di stinctio n . You pioneered In fashioning the ethical codes of the nation's lawyers. Vou now have a chance to fa shion new modes of cooper<atlon in addressing the n\yriad J}foblems o f the Justice system. I am sure th,1I I teU you nothing you do 110t III ready know w hen I suggestlhal the tasks we face as Ihe orgJnlzoo bJr are formidable-so formidable Ihat it would be easy to resign oneself to the St..llu SQuo (whic h the country !)re3Cher said was L.."ln for " the mess we Is in"). Many law~rs, though assuredly not all, arc doing well fi nancia lly. ThllY arc learnin g to adjust to the concept o f law practice as a business rather than a profession, And since the problems ;lfe almost intrac· table, why botherl It certai nly is easy to understand why ills d lfficuh to make the ImprOYemcnts in Ihe justice system Ihll1 we kncm OL.lghl 10 be made. Progrllss Is hard. Firsl, all reform is lough to 9chlcw. II is nol a sport ror the shorlwinded. As MtlChla<.(>11I said, "It must be considered thaI there Is nothing more difficult to Cilrry Oul nor more doubtful of success nor more d ,m gerous to h;l'1dle th,m 10 ini ti{llc a new' order of things, for th e reformer has enemieS In all of thme who profit IJy thll old Older alld only lukew;Hm defenders In aU of those who would profit IY)' the new. Sut It Is simply common sense that change will be more acceptable if it is a Joint product of those who will be (IffL>ctoo. \M1 need 10 get aw~ from simply Instituting rules with little Of no dlscussloll . The M ichigan COurl reeel\!Iy promulga led a rule thaI came as some thing of a surprise to the 1>.1r, and a friend 01 mine said Ihe process remind· ed him of the t itl~or a story by Ring ulldncr. The name of lhe slory was "'Shut up; she explained:' H
Tlw A/abamn Lawyer
Se<:ond, when we propose changes and rtoforms in the system, almost cer1ainIy we will gCl only min imal help and even somll oppo sition from Ihe public, bcc,1L.1 se It doesn'l rea lly understand th e meaning of "profession" and doesn't real ly understand such concepts as Ihe adversary system-a public, moreover, which d()('~ not rcgilfd us highly and is re,1dy to think thc worsl of us. ~ conduct eXI)Cnsl~ Surveys 01 popular opinion In various sta w. only to learn In minute detail what Dr. Samuel Johnson pul so SUCcinctly IWO centuries ilgO wherl tll! remarked 10 a friend, "Si r, I do no t mean 10 speilk ill of any man behind his b.1ck, bu t the fact is. he is an attorney." We cannOt expect nlUc h help from a public which ncllh£'r truSI ~ uS nor respects us very much . It 15 easy, of courst, 10 mnke the case IhallilWyers are nOl held in high publiC esteem_ I net.>d nOI read you my list of SM ' castic, and sometimes dewr, put-downs o/Iawyers; you undoubtl'flly have your own collection. It Is er\ough 10 quote Ri chard Moll's sober statement In his new book, The Lure of l ite litw: " Lawyer' in America has come to connote egoism and filbid competltl \ICncss coupl ed w ith gre«!, a seeming del.1(hmenl from issues of right IlIld wrong; .lIld yes-one who Is very brlghl and hardworking but, so of· ten, du ll,~ (M oll Is an equal opportuni ty crillc: He repea ls a tria l lawyer's ~tate ment Ihat "law school professors arc the drones and mOl1idan~ of Ihe profession:1 Vou may hil\le Sl'Cn the item In News· \\lC(Jk repo rl ing that the Dallas Zoo. which has an Adopt an Animall)rQgram, has added sn,1kes to ils list of adoptable animals and has suggcstoo Ih,11 they hi:! named "fler members o f th e bar. I am glad to report tha t lawyers ha\l(! reacted good-muuredly; the Dallas fi rm of Bickel 8. Sr(lW(lr underwroti! the adoption of all the sllakes In Ihe reptilll COlll'Ctlon. And In the los Angeles Zoo, there is a king vulture Ih.lt answers 10 "Senior ParlnC!r. But for all the bad jokes a\)oul lawycrs, Ihe most dis\L,llbing cri ticisms of the legal profession today come, not from laymen, bUI from lilwyers themselves. The criti cisms are not of thc 1.1W bUI oflilWYf.!rs, not of Ihe legal ~YSl cm but of the legal profession. There Is among lawyers an uneasiness, a malaise, a fear, a pesSimism about 1 (lW~rs Ih,l1 is nOlhlng like '1IlYIhing I ha\ll! seen in my nearly halfH
cen tury at the bar or, for that maller, In anything I have about the history of our profession. And thaI I; our third obstacie. Our Q\.','n sel f-Im age has dedln(>d dr,lmallcally In Just a few years. I do nOI eX<lgger,lte when I say that hardly a week goes by without my enCOL.lntering a li1Wyer who expresses d ismay about Ihe profesSion, unhappineiS .bout life a$ a law~r, and thoughts about jl<Xsible chnngc of career, I'~ been around a 10llg time, ,1nd Ihat's new; that's new- at leasl the magnilude of it is new-In the last ten years or so. When the Supreme Court. l..~ry time it is faced with iSSU(.'S of acNer' tising, solici tation and regu latio n, equates Ihe practice of laY! wllh commerce, It Is no wonder Ihat we lawyers begin to view ourselves a; businesspersons whose concern Is mos tl y profi t and lo~s. Thill doesn'l mean thnl we try less hard 10 produce a SL.lperior prO(:!l)(t- that is, superior Il..>gal services. Quite Ihe conIrary; we redouble our efforts to achifM! good I'csuits for our clients. Bu t there is it shlft-sonlelinlcs nOISO subtle-a shift In our moti vati on: a shih fronl service to profit. And also, it seems, ,\ shift in wha l we will do, hQ\.',' far we will go, In order to achiCYe Ihat good resL.lit for the cl ient, wi th a consequt'lnt decline in civility. Since most of us en tered the practice of law with some measure of idealismwith motiYeS of service and carlng- Ihe shi ft In the nature of Ihe profession 1m. poscs enOrm ouS ps~hologicill costs on each of us and all of us. As a consequence, v.'C are unhaplyt'-ranglng from outright despair which Is Ic.lding Increasing numbers to leave thc profession In midcarcer, to vague feelings of unease that take Ihe fun oul of practice. When y,«! arc so concerned a\)out ourselves, our cal,,1cily to Iml>rO\lC the s~tern is diminished, In part because our nlorale Is lower and our moti'IJtlons less generous, but, more importill1tly, because our vision of wha t ought to bc IS clouded by self-Interest. As the Danish theologian Klerkegaartlc OnCl' OOsef\IL'fI, Ihe miljodty of men are objcctive toward all othe rs and subjective tQ\.','ard themse l~s, tcrribly sL.lbJccti\l(l sometimes-but Ihe real task is to be objccti'IC 10000rd oneself and subjective toward all OthCfS. WIlh thesE! and o ther obstacles to im· pra.-emenllll\d rCfOrnl how call we possibly gel anYlhing doncl n,e answer, of
reoo
269
course, is Ih<ll rcrorm begins al home, I can point to the (Julls of others, but, as I learned as a child, when I poinl my ind~ finger al ar\~ne, there arc yet thn.'i! of my fingers pointing back at me. I must look first at myself; my mOlivcs, my tactics, my commitmen t- my continuing commi tment- to I)rofesslonal responsibility. Professional responsibility is not merely Ihe absenCe 01 un(.'t hical conduct, It Is also the pr~Ce of a concern for justice, or, belief yet, a highly dcvcloped sense of injustice, Most of us have Ihtle difficulty seeking whJt we regard as juslice for our clien ts. WhJI is more eIifficult is waging l><Issionatc bailie again~T Inj ustices that arc systemic. If I act rt.o. sponslbly, In the hlghCSt tradhlons of the profession, Ihen I Jm like the organisms Ihat form Ihe coml reefs: I may be only a tiny chJmber beneath the sea, but as ~ all do thi s, one by one, Ihe rt.~f builds and builds, and on\l day breaks through the surface for aUto see. I will work together with (fry fellow l<lwycrs and judges in con cerled efforts to Iml)rOVC the law ,mel its courts and l)rOCOOures, and tha t is Important. 8ul my inescapable, bed· rock responsibility is to do it right myself. Arc Improvement and reform difficultr Always. Is the public rOOling for usr NOI noticeably. Is tnc profession in good emotional healthl Generally not. Is the very concept of prok'Ssion.llism at ri sk? Absolutely. And so there Is ample b.uis for pessimism. But you and I arc not prep.ued 10 give up. ATLA Presldenl Herman recently wrote thaI "lawyers arc lde;ltlsls I:Jy nature, 01)limlSl5 by Inclination, relll ists by choice." R~ l her thnn to give In to IlC5simism and give up Ihe concepl of "pro/essIOr\:' we rnu SI h,Ml tllIllong wind to stay the course. An older friend s., ld 10 me In my youth, "11 Is beller to lose in 1I cause Ihill must fMln1ual ly succeed Ih'lI1 to succeed in J cause thllt must t.'VCntually fall." Benjamin Mays, the Iilte president of Morehouse Coilegt!, put it more IlOCtlcally. Mays said, "Tragedy doesn't lie In nOI reJchlng your goal. Tragedy lies In havi ng no goollo reach. It isn't a cJlamity to die wllh dreams un· fl.llfilled, but It is II calamilY not 10 dream .... Nol failure but low aim is Ihe sin." INe need again and again to articulate, for o\lrselves and for others, the ideals and high principit.'S of our profession. In this skeptical if not cynical age we seem
270
reluct.lnt to speak in gr.lnd terms becJuse thw seem a bll old.fashioned, even corny: term s like "(!qUill Jusl ice under I,,",." 8uI wc need to speak of those things-justice, ethics, morality-because by speaking of them, we are nlOre likely to keep them in our individual and col· lective consciousness. Then, (NCn if we meet high principle only to faa It, we may fail it at an altitude bt=TlI.'f' Ihan all lower successes. And lhere are health benclits from havIng high aspirations! Striving to Ix! a bet· ter professional, and working to bring about a beller profession will keep you young. In a bil of free verse, ThomJSjohn Carlisle wrote of the d..lngers of Silling on the sidelines; "Oischilrge, 0 God, discharge me from all pedIs lInd illl respon s ib i litic~ arid I shall riOt (...-er\ know that I am deJd:'
So, I urge you 10 look alive, to Join the fray. Look to ',(lur own conscience and be sure thai you are practi cing or judging al the highest levels of competency and humanity of which you are capable. Then Join wi th one another, working in COr\cer! \0 produce /Qr the people of Alabama II system of justice that each year Is falrel and Ilobler Ihall Ihe lasl. When, as here, we gather together tIS members of the bar, a fellOWShip of lawyers and judges, Inevitably we find Our. selves thinking ahoul whJl it means to be a lawyer- il good lawyer, il responsible, profeSSional l<tw}er. That's not only /I dUly, I1's also rcwJrding. because It sends us back [0 our dally reSI)()IIslbllltics refreshed by a new sense, or at k'aSI a renewed sense, of wha t we are as l<twyers. In my fi rst rein at W,lyne Stille Law School I invited your own John Godbold to 00 OUr commencemenl speaker. In his address he said [hOlt in the! dllyS bt.oforc he wen! on the bench. he and Mrs. Godbold had a cleaning lady who always called him " l.1wyef Godbold:' C\lCn though she seemed to address no one clse by title. When he asked her why she did thill. she said, "Why, Ihal'S a l\lrm of honort" That lillie STOry brought to mind
Ihe unforgettable courtroom scene In To Kill a Mockingb ird. The jury had JUST come In with a verdlc[ of guilty againSt Tom Robinson for 5CJIual assault against the white girl, despite Ihe courageous defense I1t' Atticu\ who had undC!rtdkC!n the unpopolilf cause. (You undoubtedly visualize Allicus as Gregory Peck.1 The black community was watching from the balconies, where they were requirt.>d to sit. SllIing up there In the hedt with Calpornia, her nallny, was Nticus's daughter, jean louise, beller known OI S Scout. lei me I>ick up Hafl)Cr lee's story at this point, bel1l8 told In Ihe nrst peoon by the young girl. Scoul: J\ldgc Tilylor wa s s..lyinR somelhing. His 8ilvcl was in his fi st, hut he wilsn'I using 11. Dimly, I 5<lW Allicus pushing I>apers from thl! table InlO his briefCllgc. I-Ie sn<tllpt!d it ShUI, went to the court reporter and SOlid something, nodded to M r. Gllnler, and then went to Tom Robinson Jnd whi spered something to him. Atticus put his hand on Tom'S shoulder as he whispered . Atticu s look his COill off the b.'lCk of his chair and pulled it CM!f his shoulder. Then he left the COurlrOOm, but nOI by his usual ~it. He must have wanted to go home Ihe shorl w.ry, because he wJlked quick· Iy down the middle aisle toward the south e)(it. I followed tile top of his head as he made his w;ry TO the door. He did not look up. Soml!One wa s punching me, but I w.l S reluct.lnt to I.lke my (-yes from the people below us, and frO'T1lhe image of Al\icus's lonely walk da.-vn Ihe Jisle. "Miss Je"n Louise?" I looked around, They were standIng. All around us and in the balcony on the opposite willi, the Negroes wcre gellIng 10 their fe!!!. Revererld Sykes's voice was as dlstall1 as Judge Taylor's; "Miss je;ln IDUise, st.lnd up. Your (a· 1her's passin'." Ar1er Judge Godbold's co-nmencement address, one of my facul:y coll!!agucs said to him, "I fee l good again aboul being a lawyeC 1hope you feel good about buing a lawyer, and I pray that those men and women whom you serve will say: "Sland UI>' A l;;lWyer'S pusinl"
•
September 1990
Resolution of the Board of Bar Commissioners of the Alabama State Bar Communications WII(REAS, the decade of the 1990s has beerl called the " Information Decade" and II is anticipated Ihal the draffi;uic growth in this <lfeil of the liM' will directly affect Alabama anomcys and businesses and Ihere wi11 be ;,"d is presently a need (or 3n org.lni1.cd ,md di ~rind grOUI) of mtorneys who Me ~uippcd and trilin(.'C1to meetlh!"! demands of Ihls burgeoning field ; and WHEREAS, after due consideration, J Task Force 01'1 a Proposed Communlc'}·
lions Law Section ("Task Force"! was con· stltuted by order of the then.President of the Alabarnil State Bar, Gary C. Huckaby, and continued by order of President Alva
C. ( .. inc, consisting of M. Roland NilChman, Jr., of Montgomery, Edward S. Sledl!c. III, of Mobile, E. Cu1Ter t-Iughes,
Jr., of Huntsville, Gilbert E. lohnslon, Jr., of Birmingham arld Bruce P. Ely of Tu ~ caloeS<! (chairman): and WHEREAS, the Ta~k force has deter. mlnl,'d by v,uiO\rs mc~m s, including 1)011ing the membership of the state bar, that there 15 a sufficient number of interested lawyers who desire to I)articlpate In, or at least to SUPllOrt, the activities of a CommuniCations Law Section, and Ihat the best Interests of the Alabama State BM ilnd 115 members would be served by the fornliltlon of ~ CommunlCiltlons !..1W Section, and hilSso recommended to Ihis board; ilnd WHEREAS, the sialed purposes and gO<II ~ of Ihis !t(.'Clion would be 10: 0 ) devclO\) a netv.(l(k d exlX!ricrlCed 1I110rllCy!i for the sharing of IIlformallon, the identi· fi cation of kn owledgeable attorneys throughout the slille, ill1d profesSIOnill imprO'lCmcnt and ~cho lilr5hip in the field
TIll! Alabama Lawyer
!..lW
Seclion
of communications law; 12J Ilublish a periodic n(.WSletter dealing wllh communicalions law topics of special interesl 10 Alabdma al10rnl?yS; IlJ present an an· nU31 seminar, either in conjunction with the state bar convention or IlOsslbly with other COJ'rlmunicatiors or ml"Clia groups; and (4) prOlllde legislative overSight, advisory services lind consuhatlon as the need arises: and WHEREAS, the ~rd of b.lr commis.sioners ha~ considered the reporl and recommenda tion of Ihc tMk force and concur~ in Iheir rL'Commendalion; Now. THEREfORE, BE IT: RESOLVED, thaI the Bo.,rd of aar Commissioners of the Alaooma State nar h~11;.' by finds and declares Ihal there Is an Immcdiille need for the formation of a CommunicaTions L.lw Section with the ~TaTcd purposes ilnd gools as PfOllided
above; FURn·1ER RESOLVED, that il secTion of tim Alab;1ma SlilTe BM to be known as the Section of CommunicaTions l.'rN be, and Ihe Silme hereby is, authorized, crc;'lted and establi shed, the Initial membership of The Silid sec1ion TO Immediately be composed of thc members who composed tnc Task force, who are hereby authorized TO org[lflize the said St!Clion's ICildcrshlp, to recruil addlTlonill members fronl aillongihe membership of the Slate bar, and to ploln and implement acTivities and services appropriate to such a se<:l ion; FURTHER RESOLVED, that The Director of flrogrilms of the Alabama Stale Bar (NOiwctOr of I'rograms', be ilnd is hereby .\uthorl~ed and direcll'CI to coerdin'lte with the members of The task force an or-
g,lOlziltionill meel ing of the IlfOposed CommuniCillions law Seclion on or about July 20, 1990, to be held In conIlCClion wllh Il.e .lOnual meeting of the Alab.lma STate Bar In Mobile, Atabdma. ilOd to encourage members or the Mate bilr to join and actively partldlhllC In the funcTions of this section; fU RTHER RESOLVED, that Ihe chair. miln of the lilsk force ilnd/or Ihe director of programs shall make iI written report to thc board of bar commisslooers at iTS nexl regularly scheduled mtlCTing followIng the annual meeling of Ihe state bar, which sh,,11 list the new o((lccrs or the secTion and the names and addresses of those attorneys who have joined the secTion ilTMlY time prior 10 Ihc delivery of Silid fCpor1; fURTHER RESOLVED. that the fOrm of by-laws submitted to Ihe board for ap. prOllal be and the S,1n1C arc hereby (11)proved and ildopted as the Inillill by-Iaws of the secllon; and fURTHER RESOLVED, Thul a copy of this resolUTion shall be published in the ",,'ld edition 01 The A/,ll)affiol lawyer, and thaI a copy hereof be PIl.'scntL'(j at the organizational mL'E!\ing 01 the section to be held 011 or about July 20, 1990. Done Ihls Ihe 181h day of May 1990 al Montgomefy, Alab3llla. AnEST:
lsi Reginald T. Hamner ITS Sccretolr 'l'
BOARD OF BAR COMM ISSIONERS ay:fsf Alv.1 C. Caine Its Presldelll
•
271
RICO in the 11th Circuit after H./., Inc. by Andrew P. Camr1bcll
.'
Anclre-.y P. Campbell,
II
parl ncr ;n fhe
8/rmlnshJm firm of W/lm/ln, Siegal, PdynC &- Campbell, P.C., Is a graduate of Birm;nghim Sou/hem Col/ege, cum la ude, and rhe Un/versify 01 Alabama School of Law w ht'(f! he W.1S II member
of rile Order of the Coif Md Alabama Law Review. He is II polSI chairperson of rhe Business TOfU Ami/rust S(!(lion of Ihc AI,lIJama Sl.<lIc BlIr, a member o( Iht! Ex路 (!(u/;vc Commlflee of the Birmingham 8ar Association ,tnd II member o( IIle Boord of [drlor~ oIThe AI,.,bama
'72
lawyer.
Scp/ember 1990
"It is thiSfactor of continuity plus relationship which combines to produce ;) pattern. RICO's legislillive history reveals Congress' Intent that to prove a pattern of racketeering activity, a plaintiff or proSL'CutOf must sh(MI that the r;)ckellffiring prediciltes tire related and that tlK'Y amount to or pose a threm of continued criminal activity.~ Justice Brennan for the majority In /-1.'., Inc, v, Northwcstern /Jell Telephone Co., 10951.0.2893, 2900 (1989) "rnhe Court counsels the lower courts: 'continuity plus relationship ... : This seems to me about as helpful to the con· duct of their .1(falrs as 'life is a founl"in:" Justice Scali.) in concurrence In I-I./., 5UI1fil, at 2907. Like the proverbi.)1 serpent, Ihe law of RICO fascinates and repels. II Is allrolC· tive alld intelle<:tuilily stimulating to those masochists who delight in the suo preme chatlenge of Htlg;uing a RICO claim to a successful ~o nclu sion with its treble damagcs and attorneys' fees, the spoils aw.llting the victor. At the same time, the stiltute intimidates bccauw of Its shL>(!r complexity borne o( the scope of Its bro.ld tcrm $. Md to this the ewr present threat of Rule 11 for Ihe lill8.ltor who misreads the stiltute and it is no wonder that the nISI vlscerill reaction of many attorneys 10 RICO Is, In the words of Or. Hunter Thompson, one of abjl'<:t " fcar and loathing." For all of RICO's chameleon trails, It call be safely said that In light of the Supr'enle Courl decisions In Sedima SPR L v,~ Imrex Co., 473 U.S. 479 (1985) and more recel1lly In /{/. Inc. v. Northwestern Bell Telephone Co" 109 SO. 2983 (19891, thc Act Is the most l>Otcm \o\('apon for liligating busines~rt!latcd miscollduct In the history of the United Siales, Every attorney who thinks himself equipped 10 har\dlc fraud CiiseS under Alllbam<1 l<1w CMlCS II to his clients 10 understand Ihe basic principles and scope of RICO. For any factual scenario having more than one fraudulent act which In turn Is Cilr· rled out in interstate commerce m;ly yield a potential RICO claim . Coming to grips with the statute and lIS reach is made necessary nOI only by Supreme Court dccisions In Sedima and H.J., Inc., which shielded the SIatvtc's The Alab.lma Lawyer
broad ambit frOm jud clill CQnstrolints. but also by the 11th Circui t which In this author's opinion has consistently adopll"<.l the most liberal Interprctatlon 01 RICO in Ihe country. ThiS j\>risprudence haS reSUltl"Ci In large measure (rom the Court's expanslv<! reading of the s t ~ lute's elements In order to affirm criminal con· vicUons under RICO, primarily those Involving muhiplc defendants cngllgl"<.l in drug i1nd other conspiracies. E.g. , U.S. v. \%It,;hmaker. 761 F,ld 1459 (lUh Clr. 1985), U.S, v, Hartley, 678 F.2d 961 il1th Gr. 19821, CefT. den. 459 U.s. 1170 (1983); U.S. v. 1·lobSOn. 893 F.2d 1267 (11th G r. 1990). It can be argued with merit that prln. clpled declslon.maklng b.lsed on ndclity of the stiltWe and leglslatlvc history has Iilken a back SCill to a policy of uphold. Ing lengthy, arduous ill1d comple. prosecutions of notoriously b.ld people and pulling them behind bars. tf Ihe public can be considered the direct l>eneficlilry of such ludlclal elasticity then thl! sec· ondary beneficiaries o( these criminal d«i$ions and cXp<1nsively applied prin. ciples surely hil\lC been civil plaintl((s whQse burden to establish 3n actionable RICO claim has been reduced in com· mensuratc fashiOn . Th is historicallibct· .lllly of Inlerpretlng RICO claims by Ihe 11lh Circuit makes it important if not potentially l)roOIJblc for onc to dlOVClop a cogcnt understanding of the stJlu\e'S term s. This article will ~k to shed light on Ihe Slate of the lllh Circuit law on RICO In light of the recent SUI)reme Court decl· 51011 In /-1./., Inc. This decision is the benchmark of any review of the law for, as discussed below, the SUI)reme Court attempted to adopt a minimum standard for thc re(luircment of " t)altern of rac· ketccring activity (continuity plus relalionshlp) as requirw by 18 U.S.c. §§ 1961(S) ;md 1962. How wclltheCoun succeedw is open to question, as is the Impact, if any, of H.I., Inc. on the developlng RICO law d Ihis circuit. TIlese questions w II be discusscdbut nOI In a vacuum. If the author has learned anything from coun tless bricfs, Mlicles (mel semi Mrs, holding an audl· ence's ll11enlion to an expoSition of RICO's clements requi res breathing life into dry terms through t~ir appliciltion to everyday life. I will "pUI meal on Ihe !x:lr1es" by the ovcrslmlll lslic usc of hypo-
thctical facts drJ'Nn frOm ty,1} leading civi l cases in this circuit to Illuminate the statutes' requirements, Each clement of RICO will be applied to these hypolhL'IiCOlis. By doing so, It Is hoped three 0bjectives will be achl(lv(od: f~c illtatlng a better underslilndlng of the statutes, predicting the direclion of future decisions, and gc1ting the reader through this anicle without fililing asleep.
I. The hypotheticals A. An outside accounting Orm, which Is a cott)Qratlon, through its accountants l)rCpared financial stllIements and report~ on six occ,,· slons OVI:!r three years on .. com· pany. The st,ltements were mailed 10 the bank and the bank ml\(le S60,000,000 In loans to the compimy on the strength 01 these financial sliltemenlS. The bilnk sued accounting (lrm alld aCCQUnlilnts under RICO, alleging the stiltements 'M'!fl"l falSt! and that they InducL'd the 10.1ns. B.1nk of Amcricil v, Touche Rou &: Co., 782 F.2d 966. B. Defendant-limiled pannershil) is formed to acquire and m.uket a ~ rics of business management video cassettes, Interests iunits) in the limited P.lflncrshlp are sold to in· vestors via priva te placement memor.md\llll. Plaintiffs claimed prosp{.'Clus and I~ter communications COritain«i false and froludulcnt informmion . PI,lintiUs brought suit under RICO. Plalmi(fs alleged In their RICO complaint that one of the plaif'lliffs had invested in simil<1r IImitl>d partnership 0( defendanl where Investors bought Interests in business vidL'O Cilssette \.'CilIum with simi lar Ilurported tax benefits lmd marketed with similar techni(lucs. Durham v. Business Man.lgemem Associates, 847 F.2d 1505 (11th Cir. 1988),
II. Statuto ry underpinnings and si aling the basic RI CO claim Thi s article will focus on 18 U.S.C. § 1962(c}, the most IIlig.lIed RICO section. In sum .)nd §uustilncc, this proYlslon makes it unlawful (and thu, actionable) for any person to participate, directly or indi rectl y, in the conduct 01 i1ffillrs of an enterprise en8<lgl'CI In Interstate com· 273
merce through it ~"111ern of ra cketeering adivity, The civil right of action (18 U,S.c, §(964) and criminal liability (18 U.S,C. § 1963) both arise from violations o( 18 U,S.c. §1962. Accordingly, the statue Is Interpreted the wmc (Of both criminal and civil cases, See Bank or America v.
Touche Ross &, Co., 782 f.2d 966, 970, n.2 (11th Cit, 1986). In Scdima, the Supreme Court held that a pl,ilntiff must plead and p«)oJ(l (1) a person's conduct (21 of an enlerwlse (l) through a panern (4) of racketeering ac· tivity. 973 U.S. at 496. Onc must add the tldditional clement of direct Injury "by reason" of thl! prl.",lcatc acts which, as discussed below, also cremcs standing to bring a clnlm, To fullycomprohcnd RICO In the 11th Circuit, onc must take and review each of the se Illcmllnl ~ within its own separate sl>herc.
III. Whorl do Ihe ele menlS e n· compassl A. Conduct of a person (directly or indirectly in Ihe enterprise's affairs)
A "person" who may be subject to liability as a defend.mt under RICO is stmutorlly defined al 16 US,C. §19GI(1) to Include any individual or entity capable of holding an ownership interest in propf!tty. Hence, corporations 0( panoer· ships arc persons whose condUCt of Ihe entcrprise through a pattern of racketeer. Ing activity exposes them to liability. As discussed hereinafter Ihis b(:(omes Interesting since the 11th Circui t has held that the " person" and "enterprise" may be the ~me. As a rCSlllt, a bu ~in ~ can be: liable for conductrng itself In a cor· rupl fashion . What does "conduct" Il')' a person mean in the 11th ClrctJlt? II extends welt beyond active management of the enter· pri se to mere participation or associa· tion. The Court in Silnk of Amc';C.1, supra at 970, defin~ "conduct" to In· clude "its pcrform ~ nce of ll ctivltle~ necessary {Jr helpful 10 the optlration of the enterprise." Thus, (!1tposed are nOI simply thc centrJl charactcrs, but also the bit players. Any peripheral actor assisting in any phase of operitions of the enter· prise is potentially liable. Outside pro-
The Uni led States Attorney's O ffice, Southern District of Alabama, add ress has changed as fo llows:
U,S, Anomey's Office 169 Oauphin Street, Suite 200 Mobile, Alabama 36602
fcssionals as well as inside management may be caulJht in thi s web. While attor· neys, underwriters and accountants may not be "sellers" within the federal securities laws SO as to Incur liability, they may be ensnared (or the iia01C alleged fraud under RICO. The reach 01 this eleme'l1 was shown by the 11th Circuit Cou rt'S reasoning in U.S. v, WJ/chmaker, 761 f.2d 1459, 1476: The substanliVll proscril1ions oIlhc RICO statute apply to insiders and ouulders-those merely "associ· ated wlth~ an entert}fisc-who !XlrtlclpJtc directly and Indirectly in the enterpri se's affairs through a I)allern of racketeerirg activity .•.. The RICO net Is y,oven tight. Iy to tral) even Ihc ~maUest fl sh, those pcrlphllrally Involved, In H Yl>othctlcal A, the outside ac· countants who prel)are (.l lse financltll 5\i1 tcments for the cOrpolillion c.)n be guilty of RICO violations f the statut e's other rt.'qulrements arc ~hONn . The s,lme is true in l-'yPQtheticill B, where liability will extend to the limited pannershil)' the underwriters nnd broken and " gents
The Supreme Court of Alabama is discon l in uing use of its post offjce box. The maili ng address now is 445 Dex ter Avenue, Montgomery, A labmna 36 '130. Please direct any co rrespondence to this new address.
Robert C , Esdale, Clerk
274
SeFJ/ember 1990
who were Involl'Cd In seiling the units and even the anorneys who PI'C!)Jred the prospcClus. And what of lhe Ilccountlng firm in Hypothetical A which as an entity did nOI engage In wrongful conduct, but whose employees dld~ Do the WOrds " person who conducts" creaTe vicarious IIlIbllity under agency or respondeat superior principles fOf the corpofillion Of p.<'Htnership because its agents partie· Ipmed in rilc keleering activityl MilflY courtS say "No," because RI CO l>olicies arc to puni sh guilty l)Cr~on5 with thc scienter to corrupt, not Innocent corpora· tlons. E.g. D & 5 Aula Pafts, Inc. v. Schwaru:, 838 F.2d 964 (7th Clr. 1988), The 11th Orcu t in U.S. v. Hartley, 678 F.2d 761 (11th C,r.) Cell. denied (1982), seemed to take a different view that a corpora tion could be held vicariously liable for the aCh of Its agents. In riltion"flzing that the corporJUon could be both II "person" and, thus, a defendant as well as the -enterprise," the Court made the following SHlIement: Appellants complJln that Treasure Isle's corporate staws, allowing for the gO'o'Crnment's alleged cmascu· Intion (If the enterprise clement, is "pmti cularly grievous" In vll.'W of the doctrine of corporate liability. 5il'lCe a corpotalion is liable for Ihe acu of ,15 agcnLS and emplQyf!eS, It permits an employee's ac tivities fO serve as proof of the IWO Wedlcdle act5 required by §/961(c). This
is simply ,1 reality [0 be fa ced by corl>ora{c cn(i(ic$. Wi,n the advantages o( IncorpotiJtion mUSf come
the atleneLlnt re5pons,bllities. 678 F.2d at 966·69 (empha sis added). That vicarious liability may apply to RI CO Is suggested by American Sociely o( Mech , Engiflee,s v. I-Iydrolevcl Corp. 456 U.s. 556 (1961) wherein the Supreme Court applied the doctrine of respondeat sUI>crior to the federal antitrust laws, In so doing. the Court held that common law agency princ pies applicable to torts ij<Wernoo anlitrull violators since Con· gress, by text or comment~, had not indio cated otherwise and the St"tut~ was bro.1d and remedial In naturc. ld. at 570. The same consideration s clearly could be applied to RiCa B. The enterprise (conducted by a !>(lOOn Ihrough a pilltern of racketeering activity)
Tnt' AI.1bama
L~wyer
Nowhere is the tlth Circuit's expan sive construction of RI CO more clearly evl· denced than in its approach to the enter. prise l'I.'quiremcnt. The 11th Circuit stands alone IlS the only circuit In thi s country thllt has held that the "person" comJuc· tlng the "enterprise" and the "enterprise" may be the same for purposes of 18 U.S.c. §1962(c). This IUle was cstilblishcd In u.S. Hartley, 676 F. 2d 961, 988 (lith Cir. 1982). In effect, the Court has held Ihat a corl>oratlon which co.,ducts itself with others through a Illlttcrn of r;lckctecrlng activity is liable, IY:.cord Shafl.--d Network Techn%gies, Inc, Y. Tay/or. 669 F,SlIPP, 422, 427 (N.O. Ca. 1967). A rC'liew of legislative history sussests Ihe Courrs train of reasoning has jum(X'd the tracks of iogic and reality. RICO wa s enacted primarily to deter organized criminal syndic,ltes from selzlns control and cor· fUllting legitimate bustnesses {th e enter· prise). Somehow, it seems thai subjecting thc victim corporation 10 liability for toe pcrpctr,ltor's actions is not exactly wh,lt Congress had In mind. Nor does sU('h a conclu sion flow from the clear WOrdS I)f the Slatule, as other courtS hllve held in requiring a IlCrson-entcrprlse d ichotomy. S(!C e.g. B;shop If. Corbetl Mllrlne WJYS, 602 F.2d 122 (5th CI r. 19861: Hllroco 1'. American Nal. 8&T Co. 01 ChicaBO. 747 r.2d 38 4, 400-01 (7th Cir. 19641. These dl'Clsions requ ire proof of lin enterprise separate and ap.lrt from the persons act· ing in concert. But, under H[J(lIey In HYl>othctical A ilnd B, the plaintiff can sue the account· Ing firm and Ihe Iimitl.'CI Il..lrtnership dcf~ants and also allege them to be ooth dcfendanls and the enterprise cor· ruploo through a p.ltlern of racketeering activity. Alternatively in both hypothetl. cals, the enterprises can be the CD-(;onspirJtotS acting in loo>c confedera tion or associa tion in fa ct, Further, in Hypothet. ical A, il plaintiff may allege the enter· prise to be the debtor corporation that borrowed the bank's money based on fa lse flnanclal statements. That a plaintiff may choose is due in p;Jrt to the er' tcrprise definition at 16 U.S.c. §1961(4) which Includes any "per· son, individual, partnership, associ..tion or other le8<ll entity, and any group of In· diyiduals associated n fact though nol a legal entity." In the leading decision of U.s. v. Turkelle, 432 576, (1981) the SUllreme Court InteqlfCII.'d Ihe staTute to
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encompass both legal and Illegal groups assoclat(.'(! in fact While there must be a nexus between the enterprise, RICO vlol;\llons and In:crStilte commerce, in line WiTh modem federal Jurisprudence, this can be minimal. Shared Nelwork Technolo8;es, Inc, v, TlIylor, supr.l at 426, MorCOYer; in the 11th Circuit, the enter. pri$@'nl>ed not receive an economic ben. efit, U.S. Hartley, supra, .11 99()'91. Simply put, In lhe ll1h Circuit, any ongoing association or orgMlzation of I>crsons with common alms will S<llisfy the enterprise require"nent. As noted above, this can be the corpora te dcfend;mt Itself. Moreover; in other criminal decisions liberally cons truing the Sliltutc to affirm convictions, the Court has held thaI proof of the prC!(ji(;'ltC acts ipso "lcto may alw prove thl! crllerpflSC. U.S. v. \Vclmtcln, 762 F,2d 1522, 1527, 1537 (1985); U.S. v. Cas;na, 697 F.2d 915, 921 (1983). Stated diffcrently, the emerprlse need not be identifiable SCI)a'alely from Ihe coconspirator's loose association to com. mit wrongful conduct but can be Infcrt'l'd from the conduct. Cagnina, silpra at 92 1. Nor must it eKist prior to the undertakIng of racketeering activity. ~in$ t/dn, supra, ci ting U.S. \I, EllloII, 5n F.ld 880 (5th Cir,) cert, den. 4]9 U.S. 953 (19731, Under prevailing crimlnill decisions in the 11th Circuit, the Court has virtually wriu(.>f1 thc enterpri se requirement out 01 the law. There is no praCTical drfference betWL'tm an "enterprise" and a common law "consplracy~ between actors to commit D.1d acts. Any defendants acting In concert to comnlit wrongs satisfy the enterprise requirement and Implicate RICO, despite the words of the st,ltute ilnd Its legisliltlve hislory which seem to require somethin!! more. Where one of the ilCtOrS Is il COfj>oration. it may ser'v\! double duty as the entcrpris('. The practica l effect of;")11 of lhls is that civil defendants will enjoy no success In defeating the enterprise requirement as long "s the plaintiff alleges concerted inllOllICmcnt by more th"n one actor and more than one predicate 1Ict, C. Partern of rackctooring activity (through which an enterprise b conducted) Racketeering actlvlly Is statutorily defined at 18 U,S.c, §196tn). While slate felonies such as murder and bribery may serve as predicate aclS, as well as numerous federal crimes. the most commonly
276
11t18"ted racketeering predicates are securities (r,lUd, wire frilud and mali fraud. HOWE.wr, RICO claims founded on fraud ag.linst broker-de.le~, a fertile field In the paSt, I-Wrt! struck a mortal blow at the hands of the ~upreme Court In Shearj on American ExpreS5 \I, M cM(}h,ln, 482 U.S. 222 (1987). The Court held that RICO clilims D.lsed on securities fraud are sub]e(;t to binding arbitration under boilerplate arbitration clauses found In customer il8r~ment$. Henceforth, such customers will find themselves litigating RICO claims for treble damages before unfriendly arbitration p.1nels dominated In many cascs by members of the S(.'CurIlles industry. Certainl r McMahan reinforces the now convenlional wisdom of ilrbi\ration clilu~ in ilny COnlr;")ctu;")1 <"Ifrangcmenl of a commerciallnstltullon ur bus ine~s.
In Sedlma, supra , th ~ Supreme Coun held thilt RiCO does not requi re il prior criminal conviClion or Indlctmenr bawd on the predicate acts prior 10 bringin~ a civil action. 47] U.S. ~t 468. The COurt further rej(!oCted a burdm of proof I>4¥>nd a reasonable doubt In RICO civil cascs. Id. al 491-92. In Hypothetical A, til<! racketeering activity would likely fall under mall and wire f"ud , In HypothetiGlI B, the same indictable offenses could be used with the addition of a claim b.lsed on 5(!(urilies fr.ud. O. The elusive pallNn re<luirement Aftt!r I /J.. Inc: .. there is litlle doubt that nlost future battles CJ\.er civil RICO in the 11th Clrcult will occur on the rilml)(l fts of the "p'l!lcm" and its suf(iclenc;y ufl(ler the law. It WJSdifferent prior to H.I., Inc, The 11th Circuit's stafl(find was easily met. The Court aJ)l>lied the pattern definition of 18 U.s.C. §1961(5) (if ·'al least tWO acts of mcketf1erlng activity" committed within ten years of each other to mean more than one llet, whether or not relaled . In u.s. v. Phillips, 664 F.2d 971 (ll1h Cir, 1961), the Court held Ihat tWO pre<.li cate Jffairs (Jnrelate<.l to each other but relJted to the enterprise sufficed to esl<Jblish RICO criminal liability. The $arne rule was applied In U.S. v. Galles· man, 1724 F.2d 1517 1522 (lith eir, 1984), wherein Ihe C(lurt held that two Isolated sales 0( pirated videotapes oc· curring at different times sufficed to f()fm a pallern. The Court also held that t\NO separate Indictable aC\!l ari sing frOm the s,l me transaction and occurring con tem-
I>or.lncously formed a partern . E,g, U.S, WJtchmaker, 761 F.2d 1459, 1475 (11th Clr. 1985); U.S. v. Phillips, $upra, 664 F.2d at 10]8-]9. In Sedima, decided In 1985. Justice White for the SU I)ff~me Court suggested t'M) acts may not form a pa:tem. 473 U.S. at 496 n. 14 ('lTIwo of anything do not generJlly form a "pallern". The Court also indlc.lted that ~isolat(.od" acts would not suffice; wh.1l was required was "cOotinuity plus rcliltion shlp'· as stated in the RtCO·s legislative history, a chain of related acts occurring over a period of time with a Ihre<rt of continuln!! activity. Id. Despite Indications in Scdlmathilt the I1lh Circuit's standard may be too per. missive, Ihe Court cOn tl nuLod to reild ·'I)"IIern" bro.ldly, In U.S. v. t-Iobson, 82S F.ld 36'1, 366 1'1 .2 (11th Cit, 1987), principled constru ction again accommodated I.'KIx.>dlenc;y In oil drug case as the Court aPI)ll ed Its I)rior rule and found thm two separate crimes constituted two separat€! predicate aclS for purposes of RICO, ilnd thus met the conl inulty requirement. In Bank of America If. Touche Ross &Co., 782 F.2d 966, 971 filth Gr. 1986), the basis of Hypothetical A, the Court Interpreted Sedima 10 hold thilt a pattern requires "a showing of more than one [emphasis added] r;}ckmooring <lctivity ilnd the threat of continuing acti vi ty." In Durh.lm v. BusillC$$ Manasemenl Nsocia/cs. 847 F.2d 1505 (11th Cir. 19881, Hypothctical 8's counterp;rrt In reality, inllOlvlnH the sale of limited partnership Interest In a vldl'() library, the Court ci ted Sedlma as interpreted in B(}nk of America Nal'l Trllst and hC!ld only two wedicate acts were rC<lulrcd to ml'Clthe I)allern requlrcment. Id. at 1512. The Courl found Ihe second act In the £'11e of InlereSt in iI venture using slmil;H methods. Apl)Clhmts correctly asscrted thn! Ihese wcre isolaled, Ifldependent events lind Irwolved, with one exception, wholly different InvestOrS. Id. Moreover, there apparently wa s no showing in the mcow that Ihe prior ven ture was fraud_ ulently rel)!l~senled , Id, Yet tire Court delermln(.'Ci mcre similarity satisfied the "Ihmat of continued actlv t1' requirement. Although the two schemes In this action Involved different lf1Yestors. the acts are sufficiently ~imilar to withstand a motion for summary
Seplember 1990
judgmenl. The usc of buslncss In· structiooal video ca~sene t.lpcs, the IIl1eg<.'(! PfQmiws of t.1X benefils and alleged Inflated a!>l)filisals which led to IRS denial of tax benenlS crea te a dcgrl.'e of slmilari· ty between the tWO schemes. While we recognlle Ihc variou~ facts asscrted by appellants distinguishing the schemes. these cooten tions illustrate that there is an Issue of m,1terial faCIS as to the similarity of the two predic1lle acts. The Dlstnct Courlthcrc(ore I)rOper· Iy denied the molion for summary judgment .
Id,
D(Jrhlllll rightfully can take lis place In history as th e desporille plalntl(('s "lifebe,1t case." When all ilPPC::IfS lost ilnd 11 plaintiff appc'lfS to be sinking under the weight of a defense th.lt no I)attern eK1m, he may cling 10 Durham and !!S(apc th deep Wil ters of summary judgment If he can loc;ue a second "similar" aCI. The only problem is at first glance and at S<!(ond, the decisiOfl appears utterly at odds wilh Scdim/l and Its cmphasis on con· tinuity and multiple a(:ts. Yet Durham
s l~<lks volumes of the 11th Circuit's ex· p<1nsive appro..lch 10 Ihe pattern rC(lulrement and 10 RICO prior to Inc. In I I.'., 1m:;. the Supreme Court made dear wha t It had indicated in Sed!ma, Ihat such il Stilrldard of only two ;lCIS which are barely related and la(:k (:00, tinuity, was insumcient under the statute. The Court, through Justice 6rennan, en· shriMod Hcontinuity plU5 rela tionship" as the rule and attemp:ed to give it leeth. 109 S.Ct. at 2900. To prove a p.lttern, the plaintiff Or prosecutor, a(:coming 10 the majority, Nm ust show th at the rilcketcering I)rcdicates are related arld that th ey amount to or pose a threat of continued (:riminal activity:' Id. In discussing the)!} tWO clements, the Court rejected the con· struction of the 11th Circuit of requiring only tWO j)rl.-dicaltl acts. Id. at 2699. The Court also disagreed wi th oth!!r d rC(Iit rulings (rlghl ly rejected by Ihe 11th Cir. cuil ln Blink of American Nat'/ B,lnkj thaI an <wcrlay of muhlp!e schemes was re<Iulred. Id. In 50 holding Ihe Court slillro as follows:
poused by the COUrt of Appeals for the Eighth Circuli In this case, that wedicate aclS of filckl'tcering may (orm a pattern only when they are P.lr1 of separate ille8~1 schemes. Nor can we agree wilh lhose courts tha t htIIIC suggesled th,lt a p.ll1ern Is established merely by proving tWO predicate acts ... In Our view, Congress had a nlore natural and commonsense approach to RICO's p.lt\ern element In mind, intending a more 51ringent requirement than proof of two prooi(:<ltcs, but also enviSioning a concept o( sufficient breadth that it might (In(:Olnp;tS5 muitlple predicates within a single scheme that were rela ted and that ilmounted 10, or thfeat(med the likelihood of, contlrlued crimi nal activity.
H.'.,
Ie/. What the Court had in mind In defining rela tedness were multiple acts related by Nan external org.lnillng principle." Id. at 2901. Drawing on other non·RICO prO'Jislons of the 1970 Org.lnized Crime Control Act, the Court held thi s common denominator may be "same or similar
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purpoSt.'S, results. pMtic;:iJXlnts, lIittimS or methods of commiS$ion or otherwise reJOlted by distinguishing cha rac:t~r is t ics and not isolated even ts." Id. Sporadic olC· tillity or unreillted acts, prcviously appr<M.'tl by the 11th Circuit, no longe-rwlll form the ba si~ of a Ihlllcrn or predicate acts, Con tinuity or the threat of continuing actillity is a more elusi ve c(lnCcpt. The COl,Jrt held thi s may be prollt.'n in two sepOlra tc but OIICrlappl ng ways. First, con· tinutty is shown by "a series of related acts extending ~r a substantial period of time." Id. at 2902. The majority held that this cloSt.'tl-ended approach did not con template criminal bchl'llliQr occurring (NCr a "few \o\ICeks or months." but "long. term criminal conduct" which by Its '-'Cry longl.... ity suggests con tinuation in th~ future. Id. Th~ second m~m s of prOlling continul· ty was o l">en'cnd!!d where the miscon. duct is ongoing, e H. where the acts h<rve so infected the business M to bocome a normal part of its regular operations. Id. The Court sU88~ted that such predicatl!S ongoing as regu lar business may be fewer in number than the Nclosed period 01 repc,ucd c;:ondUCI" since they, by Ihelr ves ted place in the business, I>OSC ., threat of r~pctltior"l in the fut vre.
Id. While jl,Jstlcc SCdiia in conc;:urrcnce lIi~ the new tes t as Uule more than
rhetor ical nourish. HJ., Inc. may be fairly r~ael to clari fy and considerably tighten the paU(!rn requirement The Court In· dlcated that a RICO pattern requires multiple r(!latcd actS occurring over a lengthy period of time or which are open-ended, ongoing or threaten repetl. tion in the futu re. The emphaSISon lonIjL.... ity and rccu rren ce seemingly would have a profound e((ect on the 11th Cl r· cuit law. Applying continuity plus re lationship to Hypothetical e, our syndicators from Durham, 5UPfil, this RtCO d"lm would go Ou t on summary judgment, Firs t, only two predica te acts are shown and two will not suffice under H.I., Inc. Second, there Is a question 01 the acts' relatedness lind third, they are past acts (doscd-endedl with no threa t of fu ture f(!1>ctltion. O f course, an able IItiglllor might cir~umvent thi s problem by conducting dlKOIICry showinlj elden· dants sold other 5yndlcatlons usl nH the same methods Ilnd from this evidence
276
argue tha t the friludu ent !kIle~ are cur· ren tly ongoing and thereby thr(!ill(!n fu ture repeti tion, In any eYent, on ilSf.lctS, I typothetical 8 does not ilppear to s,1tisfy rl.1., Inc.'s pa ttern reqJirement. Th(! more difficult case is I tYllOthetical A, bl,Jtthe prepara tion or false statements on six prior occasion; over three years may l)aSS muster as ;J pattern . They arc rolillL>d . prepilred for the 5.1mc company for the S<l nle puqlO5e, tO induce finan c· Ins. and with the samellictims. And what of the continuity rcqul'Clllent7 The number of st<ltemenls prepared over a period 01 thrC(! years would suggest a threat of repetition. Here we see how the closedended and open-ended IIlmro.lches proJecting Into the future coolesce. Repea ted JXl5t fraudulent conduct dC;Jrl y Irldicatcs that the accounting p.ll1nCI"$ <Ire oonduct· Ing their business or th,1I of the ditmt (whichever Is the ell t (!rprls~) In a corrupt fashion whi ch likely will be rel)(!ated In the future. HYl>otheti cal A f(!alUring repeated, ongoing conduct, and not sporadic episodes, con tains a suffid(!nt pattern. Utlg.'ltotS mUSt ev~luate con tinuity from both penpt.'clhes to determine whether the predica te! are Simply in the past or eMtend Into the future. What Is clear from H.J., Inc. Is thaI "continuity" will he<;ome the fi rs t line o( defens(! for llllornL')'5 defending RICO claims. They may suC('(.>d (p,lrti C\Jt~r1y with defensemInded courts), if the plaintiff cst<1blishes only a SCries of clOSL'<kndt.'tl proo k<1te acts In the past that occu rred and ended before the Iitig.1tion. The 1)lalntlff blesSt.od wi th few predicates m ..st arguc that the misconduct evinces a regular court of ConduCI, pM of the lifeblood of the busl· ness and thus threat ens rCI>ctition. E. After /-1./.• InC.: Where do we go from h (>~ Wi th the restri ctive patt~tI' require' ment, 11.1., Inc., one would expect th e 11th Clrc:ui tto follow sui t, placing similar constraInts on RICO. ~rhaps it will and then aHilin, perhaps not. In U.S. II. A/eM' ander, 868 F.2d 777 (n h Clr. 1989), the Court interl)reted HJ .. Inc., to require only tWO prediCilte act>. The Court thus affirmed a RICO criminal connection based on lIiol1ltion of the Hobbs Act and the conspirolcy to lIiol,lIe the Act llrlsl ng out of the same sct of transactions. Id . .lI 778. The Court noted the conduct threat· ened future repetition because some of
it had occurred in each of Ihe SC\'CIl years the derendant had held office. Id. The Court appe<lrcd to deviate drastically from 1-IJ..lnc:s leachin, in U.S. /'lobson, 693 F.2d 1267 (11 th Cr. 1990), like Aiel(;Jnder. a decision on remand after being IIJcate<1 by the U.S. SUI)r(!me Court in /'I.{., 11lC. The sole Question wa s w heth· (>r One set of factSproducing two criminal connections, aiding and abt.'lIlnglmportatiOn of dru8~ and .Iidi ng and abetting possessIon of the same drUBS with Int(!n t to distribute, could form a pa tl~rn. 80th acts arose (rom olle episode of conspiracy by Hobson and otllers to smug· gil.' dr\lg~ into Florida. Id. at 1268·69. QUitt.' amal!ingly, the Court fourld a pat· tern . This dubiol,J$ result wa s reacht..ocI notwl tlmarldlllg an .1IJs(!n(C of I /J., lne:s required multiple actS. as opposed to.,n isolated C\lCnt, Cktcndlng (J'.'Cr a sustained period of time. th ereby Indicating long. term crim inal behallior. To affirm under RI CO the 11th Ci rcui t elt'Cted to rely on the second OM!nue 01 con tinuity holding tha'th(> aCl$ projectLod into the future. Id. at 269. To rea ch this far, the Court ciK>d not the two predicate ac:ts flOm the same episode, but re lated non.predlcate, non·indictable fact s such as the defend ant's dcmilnd (or his money back when the mission failed. Id. Wh~rc d(>Cs 11th Ci rcui t lAW st(l1ld in light of 11.1., Inc.l It is hard tl) Sity. hut Hobson and AICx.lndcr fairly SUSHCSlthat the Court may con tinue to require only two predicate acts that are related and give mere lip service 10 H.I" Inc:s heightened con tinuity requirement. If "continuity plus relationship" Is to be hOllored Simply in the breach, the lilW will be basically the s.lme a5 It wa s befOre H.I.. Inc. Thu s, Hypothetlcals A and e, after I-I J., Inc., may stnte a RI CO cla!nl ilfter all . It is evident that as long as the tall of criminal decisions WilgS the dog of cillil jurisprudence, the illlempt to dCIIClop it firm "JXlllern" Il.>quiremcnt will take many Inconsistent twists and turns. WithOUI a consisten t standard b~St.'tl on 1-1.1., Inc., confusion will contInue 10 feign suo preme find any certa inty in the law may prove to be a goal utterly unreachable. F. Standing ;l nd injury No S\tu~l(lto define RI CO's status in the 11th Circuit would be complete wi th just a brit!f mt!nllon of standing ilnd dam· ages. Again Se<lima Is the IOO(.'5t'.1r. the ScpU~mOOr
1990
Court holding thilt the two r~tulren)cn ts Me co-extensive. 47) U.S. at 496. Eighteen U,S.c. §1964IC) I mits rCCO'A".!rles to illler· $On Hir\Jun.>d In his bu siness or prOI>crty by rcawn of a violation of §1962.H The Court in Scdima held th;lI this I)rovi sion g.we standing fOf suit only to personSsuf· fering injury to prolH'!rty or bu siness cau sed by commi ssion of the predicate ,1ets. Id. In other word s, the compen sa· tory dam,1gc His the harm cau sed by I)rcdicalc acts sufficiently related to , on· stitute a pattern:' Id. at 497. The Illh Circuit has held Ihis ~ t .. ndard requires proof tn<ll p rooi ci"lte acts were the proximate C<lu se of 1)lalntlll'5 dam· ages that dircc tl~ re sult frOill their com· mission. MOM S! v. Lance, 807 F. 2d 1211, 1214 (5th Clr. 1987). The 11th Circui t in O'Malley \I, O'Neill, 887 F.2d 1557 (11th Cir. 1989) went as far as to indicate Ihat plaintiffs, to havc sta nding, muSt be HwgetsHof the underlying predicate acls. Id. at 15&3. Thus, an emp loyee who is fiu..>d fOr rciu slng to participate in a RI CO scheme or repolling th e scheme has no direct injury flOWing directly from RI CO viola tions. Id. The de<;isions in Moras t and O'Malley afford a defendant win· dow of opportunity if i t can establi sh plaintiff wa s not an actual "target" of the fraudulent scheme.
t:ven \oVi!1! ~ellied principl es of law will bend. What we ha\!C to do In thi s case Is to find the meaning of some not \!Cry ditfic uit word s. We must try-I hiJVC trled- tQ do it wi th the $<)me freedom of natural and spnn tMI!QUS IntC!rprctatlOr\ that Olle would be sure of if the same <tuestlon arose up:m an indictm ent for a similar act wh ich exci ted no public anention, and was of importance only to a pr $OnCf befo re tht":' cour!. Furthermore, while at times iudges m..'e d for their work the training of ('(:onorni sts or sta tesmen, and must aClln \llew of their foresight of consequences, yet, when their t,1sk is to intcrpret and apply the word s of iI statute, their (lm etion is merely academic to begin wi th - to rt\ld English intci· lil:!cntly-and a cOrlsidNatlon of con sequences comes Into play, If at ail, ollly wher\ the me;1ning of the word s used Is open to reason· able doubt.
''Thc stillutc of whi ch we hiI\IC to find the meaning is a criminill statuti!. The two section s on whi ch Ihe govcrnml.!nt relieS bo th make Certain acts crimes. That Is their 1m· mediate I)urposc and thaI is what Ihey Sily, It is vain to Insist thaI this is not a criminal proceeding. The word s Cilnnot be reild onE! way in " suit whieh is to end In fine and imprisonment arId another wily irl one wh ich seek~ an InJur\ctlon . The con structio n which Is adopted In this case must be adopted In one of lhe other sorl . So! 5ay we must rcad rhe word s before us as if the qUt;!stio n were whether two smilll l'Xporting grocers should go to jail:' These word s were spoken In diSSent from llrl cr\ds-oriel\led con struction the f(!(/eral anlitrusllaws, but they equally apply to RICO counseling judicl;11 restraint and Il rlncipled fidelity 10 leglsl;!tl\!C intent. They should be our guiding rules, setting Ihe C(lurse for dlw!opment of RICO liIW. •
or
,I
VI. Conclusion Until the Act Is dismantled by CongfCSs or struck dCM'n as uncorl stltutionally \I.lgue by the Supreme Court, the efforts of th e 11th Circu it and i t ~ bill to givc meaning to RICO will r;onTinue. Amid ST competinl:! ~od etilllntere~t 5 ,md polidt.>s clarYloring for accommodation in both the ci vil and criminal arena, these efforts, our effo rt s, to properly apply the statute should take into account the timeless ad· monition of Justice Olivcr Wendell Holmes: "Great cases, like hard cases, make bad law. Fo r great ca ses are ca lk>d great, not by rea son of Their real im. porl,lnr;e in shal)ing the law of the futur<!, but becau$e of SOr'ne accl· dent of Immooiate overwh elming IrlterCSI whi ch appeals to the feel · In8s and dlslorts th e judgment. These immediate interests e)(IJrcise a kind of hydraulic pressure which makes what previou sly wa s clear !t(.~m doubtful, <lnd before which
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ATTENTION local Bar Presidents
friday
THE NUTS &
TU ~C.ltOOS.l
Atilb.lmil Triill
thursday
•
QUIZ Falher-a nd·So n Bar Presidents rccenl a s ~umpl ion of
H,m) ld Alb rinon' s
There is an increa sing need for a current li sting of loca l bar presidents, and it is di((icult to keep up wi th all the cha nges since the e lections vary with each associa tion. We arc asking for yOllr assistance in maintaining an up-to-date list. Please let us know as soo n as possible when there is a change within your local group. You may send this information to Alice Jo Hendrix, M embership Services Director, P.O. Box 67 1, MOntgomery, Alabama 36 101 orC<l1I 1-800-392-5660 (in-slale WATS) or 269-1Sl S,
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the presidency makes the fOurth time In the history of Ihc Alab.1ma Stmc Bar Ihllt II son has held the S(1me office previously held by hj ~ fatlwr. Can you name {III four SCIS of (ather·,1nd·son b.lr pr('SidenIS lind
when they served I An swcr5: (16-066 1)
UOUP(IIY
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pue (U ' IL61l 'S
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(95-556 U
a8uI ' f-! sa:)ueJ:I pUI! (5(-1>( 6 11 'r 5a) Ul'J:I (55-1>561) sauo! ' S Jalll'M ,)UI! (t 0-(061 ) apoo9 SI.'WOIj.l
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letlN,O ttaWWl pUI! IZD-I DDIl 'y PJtMP:I
September 1990
An Overview of RICO by Pamela H. Suey and Slewn T. Marshall RICO, Racketeer-Influenced and Corrupt Org.1nfzatlons,' is a prosecutor's
powerhouse and cIvil pJalnUff's dream.
\ '2>\0 R'i
II is also it statute 01 "daunting compl(!X-
Ity."1 P.lSSed in 1970 as part
or a major
ORc:,/>.N\:tE:t> CRIME:
crime flghling bill ~ RICO's stated goal Is to protect the public from "pMtics who
conduct organizations affecllnginlerslJle commerce through a pattern of criminal
ilctlvity:" This arUcle provides it general overview or RICO. The statute has been extended 10 cover 11 wide mnge of conduct: organized
crime,' white col lar crime,. (''Ven Cro.lt1on
lerroriSIS? and "bo"lon clinIc protestors,' The Unll(od SI<IICS Supreme COLIrt has not
'.
been sympathetic when RICO defcn-
dim!s have argued Ihal Ihls broad ilppll. caHon (!l(ceeds Ihe Intended scope of
RICO, stating: "RICO Is to be read broadly. This islhe lesson nOI only of Congress' self-consciously exp.msiYC lan8uage lind O'Yerdll apl)roach .. , but also of Its ex· press admonition Ihat RICO is 'to be liberally construed to eff«luatc its remedial purposes- Since 1970, O'Yer 20 states have passed Sl.ltule$ similar to the federal RICO stalUte," In 1988 a Hmini· RICO" stalute WJ. signed Inlo law In AI .... bama." This statute simply expands thc type of property already forfeitable In connection with controlled subst.lncc of· fenses; II contain. none of the other mOl· jor (eMures o( the (eder,ll RICO statule, One of RICO's unique features Is Ihat itl)l"O'Iides both criminal and civil causcs of action (or a violation o( Its provisions. ThuS, the United Slates Department of Justice" can stock a criminllllndlCtmCnt or file a civil complaint alleging RICO violations. Atlhe sarllf: time, private Il.lr· tics can me a complaint alleging the same RICO violations." RICO has become renwn, In pal1, because of thll stiff S<lnClions il pl"O'Iides: mandatory forfei· lure for il criminal violation, in addition to possible impri'()nmcnt and nn~"'tre ble damages and allorney fees (or a civil violation." The RICO statute Is organlzoo very logically. Seclion 1961 5CtS (orth defini. tions. Section 1962 IIslSIhc four types 01
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conduct that con~tltute a RICO violation. Section 1963 sets forth the criminal penallies; section 1964 sets fOrlh the civil penalties. Sections 1965 through 1966 pfUllidc housekeeping details. Sedion 1965 deals with -.enue and procns. Section 1966 prCNldl!s fOr exr)e(Jitlon of certain civil RICO actions brought by the govcrnrnent. 5e<:lion 1967 gi...-es a court tho dlScretlOrllO close ci vil proceedings to Ihe public. Section 1966 gives the Attorney General the authority to Issue civil investigative defl'ands for documents In cerlain circumstances. There are fOur types 01 conduct prohibited by RICO The gist of all four Is using a business to commit crime. Whether the case Is clvl1 or criminal, the plaintiff must l)rO\le that the defendant commll1ed at least one of these types of conduct. Before discussing the prohibited conduct, it Is necessary to review three of the major RICO definitions. The first significant OOflniUon Is ~racke leering acllvlty:' Section 1961(1l defines ~filCketcerlng activity" as committing any 000 01 specifically IISled crimes, often referred to as "predicate acts.~ The crimes listed in 1961(1) include cerl(lin State felony offenses (murder, kidnapping. gambling, ,mon, robbery, bribery, extortion, obscenity Or narcoti ~) and appro~l mately 55 fcdcr.1 felony offenses. The ( :deral o((cnses include those typically thought 01 as "racketeering" offenses, I.e., the Hobbs Act (interfering with Interstilte commerce through violence or the threat of violence), distribution of illegal narCOlics. bribery, extor1ion, g<lmbling, pr0stitution. Also Included as ~racketeering activity" are many white collar crimes: mall fraud, wire iri'lud, labor union and
r. Marshall
ProfeSSOr Bucy Is
Steven
/In associate pro-
Is a 1987 sr.lC/ume of thC! University of NO/lh Carollnn and a May 1990 8riJdu~rc of the UniversifY of Alabama School o( Law.
fessor of law <II the Univef$ity of AI/Ibama School o( Law where she teaches white co/IIU crime, criminal law and crlminlll procedure. From 198()'87 she served as an ;ulistanf U.S. Allorney in Sf. l.ouI5, Missouri, where she 5f)OCialized in prosecutions of whlw collar crime.
2••
pension fraud, money laundering, and securities fraud ..• One does not commit a RICO offense simply by committing one "racketeering activity," radler, one muSI engage In a "pattern of racketeering activity:" "Pattern of racketeering activity" is defined In Sec· lion 1961(5} (I S "ilt least t~ acls of rackctL'Crlng activity within a tcn.yuar lime pcrlod."'1 The federal COutlS ha...-e strug· gled with this minimal definition. In 19861he United States COUrl of Appeals for the Eighth Circuli gave a narrow Interpretation to "pattern ,~ holding that tv.oo counts (i.e., two mililings) in a mail fmud scheme were so closely related to each other that they constituted only one "mcketeerlng activity" and not a "pallern" of rnckct~rlng activity!· Almost every other federal COUrl of appca s had reJccted this narrow Interpretationl ' when the Supreme Court also rejEcted It In a recenl decision, H,J. Inc. v. Not/hwes/ern Bell T(.·lcphone Co.~G The Suprcnl(! Court allemptcd to clarify Ihe pallern requirement. but as Justice Scalia obsef\.1?d, the Court's effort prOllides meager guldance.11 After examining the legislative hlstoryP the COUrl Sl.lled that "the term 'pallem' itself requires the showing d a relation ship between the predicates ... and of 'the threat of continuing activity."''' AddressIng first the "relatlon5hIp" prong of this defillition, the Court stated that a relationship mtlsts between acts of racketeer· Ing activity If the acts h<l\'C "same or similar purposes, resuhs, panicip.lnIS, victims, or methods of commi ssion .~j · "Threat of continuity: according to the Court, is both a closed- and open-ended concept. "A party allc&ing a RICO viola-
tion may demonstrate continuity over a cloSl?cl period by proYing a series of related predicates extendlnl OYer a sub:stantial period oItime.Hu But, when a RICO action Is "brought befOre con tinuity can be established In this wort, ... lIilbility depends on whelher the threat of con tinuity is demonstrated.~J' Such an open-ended threat can be EXI)licit or impliCit. An Implicit threat could be shown with evidence "Ihatthe predicate acts or o/(en~ arc part of an ongoing COtity's regular wilY of dOing buslness.HJ1 The Court's application d. the "pattern" requirement to the facts of HJ. Inc. Is somewhat iIIu~ra t ive 01 this requirement. The plaintiffs in this case were CUSlomers of one of the RICO defendants, Northwestern Bell Telephone Comp.1ny. BringIng a class aClion suit that Included state claims based upon statulory and common law, the plaintiffs alleged that Vilrious office~ and emploo,<ees of Nor1h· western Bell, as well as members of Ihe state utilities commission, engaged In a pimern of racketeering activity (bribery) causing telephone rates to riSC.II ApplyIng the newly clarified "pattern" definition, Ihe Supreme Courl reversed the district court's dismissal of the RICO complaint, noting thatlhe plaintiffs may be able 10 prOllC thaI the alleged predicate IICIS constituted a "pmtern of racketeetlng ilctlvity." Rela tionship betv.'Wn the predicate aCts could possibly be shown If the alleged acts of bribery "are said 10 be related bv a cOtl'lmon purpose. (that isl to influence the Utilities Com· missioners in ... order to win appf'Oi\l3l of unfairly and unreasonably high rilles for Northwestern Bell.~ " Threat of continuity. the Court noted, may be satisfied with proof that Ihe brib<!ry "occurwd wllh some fre<!ucncy O\ICr at least a 6.ycar pcrlod",IO or alternatively, by a showing that the bribes \Ntre "tI regular way of conducting"" ei ther the business of Nurt1'rwestern Bell or the! utilities (ommission. Although the 5upreme Court's clarifica tiOn of this element may be meager guidance, at the moment It is the best RICO plaintiffs have. sumce It to say that hereafter RICO plalnl lffs should be sure they can prove a "pallern of racketeering activity" by shOWing 11 sufficient "reliltionShlp" between the specific a<:ts of "racketecrlng aCllvity" they h;'l\i(! alleged and a suffi cient "threat o( continuity" (be
September 1990
It Ihe "doscd-ended" or "open-ended" version) belween ~uch acts. The Ihlrd slgnlHcanl definition in RICO is "enterprise. Simply eng;aglng in 11 "pallern 01 rackelccrlng activity" will nO! con· sliMe a IUCO offense. The st.ltute forbids engaging in a IhlUern of racketeering only insofar as an CIlterprise is In<.Ol~.u Section 1961(4) deIlnes enterprise broadly as "any IndiVidual, partnership, cor· por<ltion, associalion, or other legal entity, and any union Of group of Indivld· uals associated In fact although not a legal eruily."" SectiOns 1962{aj.(d) add Ihat the enterprise "must affl"Ct inlerstale or foreign commerce:'I~ This commerce requlrcmerll Is minimal and easily mel.!' To prove the existence of an CnlerprlS(>, the RICO plalntl(( must firSI pl'O\.1l Ihal Ihere e)(i~IS rome Iype of "ongoing orga· nlZation, formlll or inforl11al."u Evidence of JUSt enough (lrganl7ation lImong In· dlvldu;,ls 10 Cimy outlho Ilrt.'dlcatc acts could sulnC€! to !lweI this burden." The RICO plaint)(( mUST also provc Ihat Ihe various associales In Ihls on·golng organizalion "function as a continuing unlt."H This "continuity" can be shown by evl. dence of Ihe commission of Ihe So.1l11e type of acts where the Jobs 10 be per· formed remain Ihe same (even if Ihe pe0ple performing Ihese Jobs change).'· Courts also h:we rc:quired clear proof of nCllus belween Ihe pattern of racketeering activiTY and the enterprise, In The United States CourT of Appeals for the Eleventh Ci'cult, this nexus is shown by "proof that the facilities and services of Ihe enterprise we'C regulilrly and repeat· edly UTilized to make possible Ihe racketeering activity."' · It is not m.'Cessary 10 go further and PfOV(> Ihal the rackeleer· ing activities had "an effect upon the common, ClYCryd<l)' .,rr"lrs of the enter· H
I>rise."" The Unltt.'lI SI0.11e5 Courl of AJ)I>eals for Ihe Eighth Circuit Imposes ilnother re(Iulrcmenl In pfO\'ing Ihe C)(isttmce of an enterprise. It holds Ihal Ihe proof of Ihe enterprise must be di stinct and separale from the proof of the Ihltlern of racketeer· ing aCTiviTy.'l Olner (t.'<Icral courts of appeals,') including the UniTed Slales Court of Appeals for the Elevenlh Circuit," reJeclthls l)OSition and hold that the same evidence can sumce 10 I>rovc Ihe existence o( the enterprise and the panern of rilcketccring activity u,}S long os Ihe proof offered is sufficienl to S<ltlsfy bolh The Alabama Lawyi'f
elements."" U.s. v. Mazzei,u a criminal RICO aCtion broughl against indlviduo.1ls, Including members of the Boston College baskelball team, (or a "point shaving" scheme" helps demonstrate Ihe practiCill significance of this distinction. In thiS c... ~, the gO'lernment used the same l'Vidence (point shaving and ganlbllng) to prove the Cl(islence of the enterprise (a group of Indlvldu<lls associated to engage in a point shaving! g.lmbllng S(heme) and to pr~ thaI pn•.'dicate acts were committed (gambling}. The United Stiltes Court of Appeals (or Ihe St.ocond CircuiT ruled thill using the same evidence 10 prove both com· ponents was nc)t a problem but recog· nlzed Ihill a conlwy holding likely would result using the Eighth Circuit's PQsitlon.4I Ahho\rgh both t'le United Sl,lles Courts of Appe;rls for Ihe Fifth ilnd Third circuits have ;rPI)lied the Eighlh CircuiT'S rcqulremerl\ c)f diS!lnet proof, it Is nO! cle;u how strlngentl'f Ihey do so. The United States Court of Appeals for Ihe Fifth Circuie hinted Ihm if cont inuity is
wovcn In the evidence of the pallerrl of racketccril1g actlvley, Ihls s;rmc proof could su((jcc to demonSlralC the existence of an enterprise.~· Given Ihe Suo preme Court'S subsequenT holding in H J, Inc.~ Ihal proof of (J pallem of rackeleering activity muSI Include proof of con· tlnully," the Fifth CirculI's vicw may now more closely align with that or thc Eleventh CirculI. tn Ihe Third CirculI'S semi· nal opinion, United States v, Riccobene,n lhe finding 01 "disTinceevidence" to IlfOYllthe "enlerprise" after Ihe pattern had bt.>en prCNen was SO brOlld Ihal such evidence will be present In vi rtually every CMe, In Rlccobcne Ihe Third Circuit fOllnd that Ihe cnlerprir.e "sc'"-'<l [asl a clearinghouse and (proo.'ided] a coor· dinatlon function above and beyond that necessary to carry mil ;rny single one o( Ihe ra ckelCl:Jrlng activities charged ag;111151 Indlvidu;rl defcndanls."1J Evi· dence of this functi On W.l ~ held 10 be distinct from the evidence oftlle predicate acts, Common sense lells us Ihal when more Ihan one aCIor is Involved, such "coordlnOllon" will always be necessary
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to commit jlllY aCts, Including RICO predicilul aCI!>. To summarize these definitions: a RICO offense can occur only when there Is a Polltern of racketooring ..cti vily affoo· Ing an enterprise. ~Rackcteerlng activi!y'" is easily determined by referring to thc list of offenses In 1961(1). The Supreme Court's recen t ekplanation In H.I. Inc. of ~relatiooshiP" ;md "Continuity" shoold be uS(!(! to assess whether a "p.lttern of rac· ketccring activity" e~ist s. Depending on which federal court of appeals one Is in, the (oUa....lng Issues must be resolved to determine If a RICO "enterprise" h..s been shown to ekist: I)resence of an "on· going org.lniz3tion" whi ch "functlon(s) as iI continuing unit"; sufficient sha....lrlg of th e nl'kU5 between the enterprise and the pattern of racketeering activity; Md, proof of th e enterprise that is distinct from Ihe proof of the p.ll1ern of rackell'cr· Ing activity. Once these deflnltlon .. 1 hurdles arc met, one can move on to determine if conduct has occurred that Is prohibited by RICO. The four types of conduct prohibited bv RICO lire set fOr1h in four subsections of 1962. Section 1962(a) makes it unlawful for any p(.>rson to "usc or invest" any Income derl~ flOm a pattern of racketeering activity In an enterprise.'· United SfJles If, langU provldC!S an ek.lmple of a 1962(01) offense. lang and Porter were partneB who a....ned oil refining and related businesses. They fa lsified Information about the oil thcy were processing, used the malls to do so and were found to have commi tt ed the r.lcketeer· ing acUvlty of mall fraud ." A 1962(01) vlolmion occurred because Zang and Porter ("I>crsons") fun neled Ihe profitS they m(lde from their mall fraud scheme ("pattern of r<lckelccring ,1cUvhy', Into one of Ihe busincsses ("enterprise") they a....ned. The l'lOrtlon of ,his business auri· butable to the III-gonen profits wa s forfei table property under RICO.,1 Section 1962(b) makes It unlawful for any person to acquire or maintain corltrol of any cnu:rpri se through a pattern of racketeering activity. United St.1tes .... /.IXa/ 560 Inl'/ 6rotherhocxJ Team· sters" provides an eJlample of a 1962(b) acti on, The United States brought a clvit RICO action ag.llnst 12 Individuals, lO(i11 S60 of the International Brother· hood of TeamSters, and local 56O's ~Ifare Fund and Severance Pily Plan. A
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Section 1962(b) viol~!lon occurred because the individuals ("persons" ac· quired an interest in iIOd control of Local 560 ("cnterpri$e" through extortion and murder" ("pattern d racketeering ac· tlvity;. Section 1962(c) makes It unlawful for any person Nemployed by or associated with ,lny enterprise" to conduct the af· fairs of the enterprise through 3 pattern of rdCkCtC<!ring aCtivitv.'" Section 1962(c) offenses are the mOSI common. One study of aU reported RICO cases through 1985 sho.vcd Ih3t92 percent of the cases charged a violation 04 1962(c), or a con· spiracy to violate 1962(c).~ ' Bennetl .... 8erg" provides an Ckolmple of a 1962(c) action. R/!sldents of a retirement community fIIC!d a civil ~o mplainl against numerous i nd ividual~ and corporations alieglngthat bccauseof the defC!ndants' (r<lud. the retirement community wa ~ on the verge of bilnkruptcy and the residen ts fa ced the loss of the services they had paid for <lnd been promi5ed.6l The com· plaint allegf!d violations of 1962(c). asS(!fting tha t some elf the defend,lOts rpcrsons', conducted the affOl i ~ of the retiremen t communltv ("enterprise'') through mall and wire fraud f"!>auern 04 racketeering acti vi ty;. Section 1962(dl makes it unlawful for any j>ClSQn to Cl)nspi~ 10 do any of Ihe aCI$ in 1962(aj.(c)". The usual elements of conspiracy must be proven 10 PfCYilII on a 1962(d) action: the defendants agreed to commit al least one type of RICO conduct as spedfied irl 1962(a)(b) or (c), and at least one conspirator com· mitted at least one overt act In further· .. nce of the conspiracy.u A RICO conspiracy requi res proof of an agr<!CnlentlO viola te $ Ub~ rllnlive RICO provisions.·· The R!CO plaintiff docs not have to I)rovt:! that each defendant also ..greed to pcrsonaUy commit the predicate acts that make up the "pallern of racketccr· Ing activity." but the plaintiff must provt:! thai each defendant personally agreed to the commission by someone of the pred. Ic.lte acts.'1 By Ihe S<lme token, proof only that a defendant agreed to the com· missIon of the p~icale actSwithout further proof of an .lIgrefnlent to violate a substantive RICO offense Is InadequOlte to prove a RICO conspiracy." The following example may help demonstrate what proof is necessary to establish a 1962(d) RICO coospiracy. If
a plainti ff proves Ihat the defendants agreed to coUect insurance proceeds from the arson of scvcral businesSEls and tha t one defendant commillro one overt act in further<'lflcC of this imurance fraud, Ihe plaintiff may have p/O'llen a conspir,lCY to commi t mail fraud (assuming the Insurance cI,lim was mailed). However, unless the plaintiff a so proves an .. grl.'Cment to use or inve~tthe ill-gollen Insurance proce«ls In an enterprise, (a 1962(a) action). or to acquire Or maintain control of one enterpri se through the insur.lnce fr.lud. (a 1962(b) action). or to conduct thc affairs of an enterprise through the Insur-mce fraud, (a 1962(cJ action), no RICO COnSI)ir~cy has been prOVC!n . If. as one court statoo, th e RICO stat· ute Is "constructed On the model of a trea sure hunt ...., Sections t963 and 1964 /He the trea sure. Section 1963 sets forth the criminal pcnilttles. A criminal con· viction subjects the RICO defendant to .. possiblc ~ntence of impri5()nment of 20 yearS,10 substantial fin~,1' ilnd forfeiture of ~<lny interest ... acquired or malntalned In violation of RICO! ' Most 01 section 1963 deals with the forfei ture penalty. The government Is given broad jXM'Cr to seek ~tralnlng orders or per· formance bonds "to preserve the avail· ability of the property subjcct to foriel· ture."" In unusual cases, such ordeB or bonds may be obt3ined before indict· ment, ex l)ilrte and without notice." See· tion 196] also setS fOrth tile procedure 11 bonafide purchaser of Pr'Of~tly subject to forfeI ture should foUa.... to secure her rights to hur property." Section 1964 addresses standIng (or civil plaintiffs nnd civil l>cnllities. It confe~ standing to bring a civi l RICO aCtion on any person injurt.>d In hl$ business Or prOlxmy by reason of a viola tion of 1962"" and sets (orth the damages recoverable: " threefold the damages [sustained] .. nd the cost of the Slllt, including a reasonable attorney's fce.Nl1 N
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Stand ing for the civi l plaintiff In order to maintain a crvi l action, II Is not necessary for a plaintiff to demon· Wate thaI the defendant has been crimi· nally convicted under the RICO statute.n R., ther, the appropriate standing inquiry focuSt.'S upon the injury th<!-t has been suffered 3nd Its relationship to the defendant', RICO violaTion. Sepwmoor 1990
The CO(Irts h(lVQ encountered difficulty in establishing the parameters of the in. jury requirement necessary to gilln standing. The United States Court of Appeals for the Eighth Circuit has construed Injury broildly, 8r~ntln8 winding to plain. tiffs who were not the targets of the racketeering ill;;!ivity iUlO only suffered "indirect" Injury!' The courts of appeal fOr thc 5e(ond, Fifth nrld xwnth drtuits have granted standing only to thoS(> plaintiffs who suffer a "direct" injury arising from the RICO predicate acts,'O The Court of Appeal s for the Eleventh Circuit, while sening forth an ilnalysi s which shuns the indire4;t/direct Injury label, seemingly ~doPts a view of seclion 1964(c} consiStent with the la!!er approach. In O'Malley v. O'Neill,., Ihl! court proffered a three-pM test for stand· ing whereby a plalnti(( must show: "(1) iI violation of 19&7; (2) injury to business Or property; and (3) th(lt the violation ciluSL>d the injury."u If there is only a "le'lUOUS" It!ltJ tiOnshilJ bct'M.."E!n the hurm and the RICO viola tion, the proximatc c.1usatlon re<lulrement Is not satlsncd, under this Eleventh Circuit test, and standing will be denied.1l The court stilted that it Wi'S unwilling to griUl! st(lnd· ing absent a "wong link" between the defendMt's commission of the predicate acts and the plaintiff's i1l1egl."(i injury."
Pleading the criminal or civi l RI CO cause of action u Generally, II RICO complaint mu ~t allege "( I) conduct (2) of an enterprise (3) through a pattern (4J of r(lcketeering <lcl ivity."" The;!;! four requirement s, while seemingly strilightforward, have given risc te) a va st tlmoun t of !/tlgation concerning motions to dismiss (or inad· equate pleading. Each aUegation is Itself a term of art and embodies Its own requirements of particularity.17 For this re(lson, a comprehensive discussion of all RtCO pleading Issues Is beyond the scope of this overview, but scveral recurring issues deserve brief discussion. One Issue which nUlnerous courts have addresscd IS whether a complaint that alleges a fraud offense as a predicate act complies with the requirement s of RulE;! 9(b) of thc Federal Rules of Civi l Procedure (FRCP). In Durham v. Business MtJrltlgf!men! Msoclill(>S, U the United States Court of Appeals for the
Eleventh Circuit, in ex;"\mlningthe sum· ciency of mail fraud allegation In a RICO (omplainl, held that "al1cg.1lions of date, timc, or place satisfy the R(Ile 9(b) requirement tha t the circumstances of the alleged fraud must be pleilded with par· ti cularity,"" However, the court cau· tioned that the particu larity requirement does not abrogate tnc concept of notice pleading embodied in FRCP 8.!O A second pleading Issue th(lt ,uises in 1962(c) RICO actions is whether 1hc cntl!rprlse can also be the "person" committing Ihe crime. Every ft>deral court of appeals, except the Eleventh Circuit. has said no." These courts hold tha t for pur· poses of t 962(c}, the! eillerprise whose affairs are conducted Ih rough a I>attern of rackcteerlng activity cannot al so be the "person" charged. where the enterprise is the " deep pocket," this rule may reduce the chancl.lS for I;;ollecling on any ludgment obtained. Wh~n this is not a problem, this rule Is nOt a difficu lt one to comply with and would rarely impede charging a 1962(c) "ction, In almo~t every RICO action the "I>ersons" charged will include princiP<1ls of Ihe
relevant enterprise. To coml>ly with this rule of pleadirlg, Ihe RICO plaintiff should simply dcll!le the enterprise from the list of persons otherwise ch"rged, A (elated pleading question is whether Ihe "enterpri se" can be named as a "person" committing 1962(a) offenses. Thc Supreme Court has not acXlressed Ihls Issue, but the k"(icr<11 courtS of appeals which have hold thaI this lest/lolon does not apply in 1962(a) actlons.'l ln reach· Ing this conclusion, these courts focus primarily on the difference in the language in ! 962(,,) and (cl. Becill,lse thc pcninentlanguilgc in 19&2(b) is identical to that in 1962(a}, it is also doubtful that thiS ,,1('adinS nuance would apply In 1962(b) actiorls.
Double jeopardy Generally, the Double JoopMdy Clause of the flflh amendmen1 prOtecls a defendant {rom a second prosecution fOf the same offense (afler ,Ill acquittal or conviction) and (rom multipll! puni shments for Ihe same offensc.-;j Several criminill RICO defendants have asserted Ihat a criminal
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RICO prosccutlofl af1er a former trial for a violillion of the predicate acts abridgl.'S th~ prot'X:Ilons d the Double Jeopardy Clause. CourtS hlWe re,ected this ~successlve prosecution" argument, holding that Congress Intended SCpdrate convictions for both the RICO oIfense and the underlying predicate acts." Similarly, courts have rejected RICO defendants' arguments that punishment for bOlh the In· dlvidual prcdicale a<:1S and the RICO offense violates the cumulative punish. ment protection of the Mth amend· men!." These decisions hold that Congress inlended to permit Cumul:1live punishment for subslantlve RICO viola· tions and the predicate crimes, and thus, found no fifth amendment vloIOllon," While the Double Jeopardy Clauw provides Hule protection to a crlmillal RICO defend'Ult, Its prohibition against multiple punishments may I)rovide some relicito some civil RICO defendants, A recent United States SUI)reme Court decl. slarl may illiow tht! Double Jeopardy CIJUSC to limit the n,.'COVCry sought against a civil RICO defendant when the action is broughl by the government. In Unilecl SIMes v. Hal/>er,'7 a former medical service manager, who was previously convicted for violating'the crlm. inal false claims act, was sued by the g~rnment under the civil false claims act. The defendant, conceding liability under Ihe civil St.1tule, contl.'ndl.<d th;lI the severity of the additional penalties under the remedial provlsloos 01 the civil act violilled the multiple punishment protection of the Double Jeopardy Clausc. The Supreme Court agreed that, undwcert,lIn ci rcumstances, such a Mh amendment violation could occur. The Court stilted, "[The] Government may not criminally l)rOSCCUle a defendant, Impose <l <;rimlnol p~nalty upon him, and then bring a Sel)3rate civil action basl!d on the same conduct and receive a Judg· mCfltthat Is not rationally related to the goal of making the Government whole" Thus. after this dcc:ision, a civil RICO defendant may succes~fully argue that the remedy sought by the government in the civil action Is eKcessive and has no relation to making the government whole. H(MIeVI;!r, the Court in I la/per made dear that Its decision did not apply wh<!n the civil action was brought by a I)rlvate plaintiff."
2••
Forfeiture in carrying out the order of forfeiture ag.llnst Ihe defendant. issues arise as to the effect of the forielture order upon pri· Vilte parties nol convicted of a RICO violalion. The RICO statute provides following procl!dure for righl5 of bonafide pur· chasers of property subject to RICO for(eiMe, Subsequent to the cntry of the order ol forieilure, the United States must publish notice of the order In such a manner as directed by the Allorncy General and. if practicable, plOYide notice 10 any perwn knl)Wn to have iln interest In the property subioo 10 forfeiTure.'oo WithIn 30 days o(the final publication of this notice, ar'Y person asWrtlng a legal In· terest In the I)roperty must petilion the court for it hearlrI8,!O' The petition must stilte the (I) nature and CJ(tcnl of the Ilarty'Sright, title, or interest in the property, {2l the time and c i rc~'mstJnces of the party's acquisition of the right, title, or Imercst in the prOperty, (ll any addilional racts supporting the petition, and (4) the relief d(!Sireclpl Thereafter, the court shall, if practicable, hear the peti. lion within 30 days 01 nUng.tO ! III. tbe forfeilure hearing, Ihe court alone will make a determination of the Issues presentl.>d.1i>' In m,lking the deci· sian, the coun will consider Icstimony presented by the petitioning party as well as any relevant portions of the record of the criminal case.IOJ In order to prevail, the petitioning party must convince Ihe court by il preponderance of the evidence that (I) he has a legal right, tille, or IntereSt in the property which ~Slt-'d In the petitioner or was superior to any righ t, title. or intercst d the defendant ill the time the criminal am which g.1\IC rise to forfei ture took plJce, or 12) that he was (l I)On;lfide PUrChilSCr who at the l ime of I)urchase did not rC(lsonilbly believe the I)rop(!rty was subjC(;t to forfeiture.lot If the IlriV.IIC party can demonstrate either that legal thle exislt>d prior to the criminal acts or thai he Is a bo'\afide purchll~r, the COOrl thereafter tn<r,' amcn<l the order of forfeiture and require the goyernment to relinquish its interest In the particular property at issue.'o1 In delermining the scope 01 the order of for/ehure, another issue tnat has arisen is whether funds Intended for use as al· torney's fees are subject to forfeiture. In United SI,lIes v. MaManto,IH the Su-
premu Court addressed thi s issue Md held thai a district court can freeze assets In the defend;mt's posSf!Sslon EM.'n when the defendant seeks to use those assets to rctilln iln anorncy.l~ Burden of proof 5«.oct;on 1964 Is silent as 10 the burden of proof which a civil pillintiff bears in proving Ihe elements 01 RICO, The Supreme COurt has hinted, but 1'101 firmly eSlilblished, what Is the nt.'Ccssary evi· dentiary stalldard.l!o H~r, folicming the Coun's suggestion, the circuit courts are In accord that the I>redicatc acts must be proven by a preponderance of the evidence.'"
Co nclusio n RICO Is a complex statute bUI it provides aclV;lrlt;\ges for both criminal and civi l plillnli(fs. As the criminal plaintiff, the govcrnmCnl can join together dispMate crimes In one indictment, includ· ing crimes over which it otherwise has no Jurisdiction. More significantly, however, the government obtilifls the defendant's property through the forfeiture penalty. With this penalty, the g<M!rn.. menl can hit criminals where it hurts: in their pocketbooks. The Civil plaintiff, meanwhile, gJins immediate federal jurisdictioo, and if successful, ilulomiltic treble damag(.'S for what is often "garden.. variety" fraud otherwise litigated in lhe state courtS wllh only the possibility of punitive damagcs. There <lfe haz;\rds with RICO, hoY.e-JCr. Overuse of RICO bot both criminal and civil plaintiffs has seriously jeopardized tha st;uuu!'s fu t\lfe. During the past five years increasinlJly aggressive efforts have been made In Congress 10 Cllr1all ~I CO's prOVisions by restricllng the prt..'dicate acts for which treble damages are ;'\Vail· "ble."J For the clvll plaintiff, anolher hllzard exists. The courts have been in· creasingly willing to Impose S<lnctions on pilrtics bringing inappropriate RICO ac· Ilons.l1 ,j Applied correctly and In appropriate situation s, RICO scr'YeS as a valuable weapon to both prosecutors and civil plaintiffs. RICO Iltiganls should be ad· vised, however, Ihat the stiltute's future is uncertain and Ihe cQn5(.'q1Jences 01 Its improper use <Ire pOlentially s..!v{!re, September /990
1 R.aocI.elcef.lro/lUM<ed and CO!1"upl Ofllolni~.l'on. (RICOI, III U.S£. UI96J.1 9U (1982 and Supp,j, 2. Lyndl, IIICO: The Cm'", 01 811mS ~ C",,,,,,,,/, P,IIU I ~"d II, 8? Calum. L R"". b6 I.?6~ and f'JrI.l 11/ ~Ild IV, 117 COlum. L Rw. 920-984, al 680 (l98Jl llle!~nart/!, Lynch!. 1. O'Pnl~fd Cfl~ ConuQI ACt d 197t). Tl!1e IX , J>ub. L Nu. 91-452. 84 51.t 94' (19701 ~ tl5 ConlJ. RK.. 9563 (19b91, MM ••uk. 01 X'tul(>l MocCIeIl~n
~, t.II., U,,/11lt! $Ut"j 10( toe.1 560 0/1,,11 8rlJ1~hood dlNnlle's, 550 f.Su,lf). 511 (D.NJ. 191121~'f"d. 7&0 f.2d 267 Ud CI., 191151 cell. denied
50
~ ?6 u.s, ,, ~O U9l'Ib); U"III:(/ $Ll/(" 'I c"mbmll S66 F.2d 414 12d CII. 19m Ci.'/!. di.'nl~d ~ l5 u.s, 952 (19781 6. $tto, e.g.• U,,/Ii:d 5!.11.., v Milk,,,,, C..... \4I No. S 89 CII 4 (s,nNY 1'11191 I!«UUIIM ('~udl " Unitt:d 51.11('110( B.tp."c, ?06 f 2d 4112d CI~) (efI. denied 464 U.s, 84il (19111) 8. NOIliIe.IJI \\bnIeI"'s Cen'e<, I/\C. v McMOrw8~, 614 r.SUIIPo 736((0. Pi, 19851 'J SN/,/N, S.P R.L v Iml1'x Co , 111(" 41'3 U.s, 479. 497-498 1198S1. 10. Srt, <I H·, ;\rj,. Rev. SI," Ann. 5 1).2)12 (1978): c" COIk Ann. t 16·14.1 (191141; Mill. Cotk Ann S 97--01)·1 (19851. 11 AIJ Code: t 2Q.l·93 11988 " 01~ "p'11 18, 19901, 12 IIiCO Guldel,nes, United SI.l~ "'lOtMy'. MJtIo lUI 19·110.000 ('r, . rq 1l. 0 .11 RICO I, . M""omef: Tile! N~ fof C"mln," P/OCl!"duf.1 P'OU.'CI/orls In ,o\(:hom UrHif!. ra U.SC 11964, 1(l(l 1i~rIo( l . Rev 1288. 1m (1987). 14. 16 U,S,C. § 1961(a). U. 18 U.s.C, S 196~1(1 . 16 18 U.S£. § 1%1,11, 11 III U.S.C. § 1961151. 18, Supefiot OUCG' flll~ 785 ~2d 252, 25~58 (11th CI,. t986). 19. 5(>.e, e 1' , UIIilOO 51.111." v. IlId"'~~kIo. 865 f 2d 1310 (ld CIf. 1M'll. 20. HJ. Inc;. 10( NQI1I....('jl('f" &11 kl('phot\e CG, 109 5.(1. 289) (196'1 _ 21. Id ~I 19()6.2'K19 (SI.:~III, J, COI\(' Urlln81_ 22. III at 2902.290S, 23. /(/. it ~\XlO. 2 ~ Id, 31 2'K11 25_ Id. ~I 2902 . l&. 1(/ (emph.uls In OtllJlnall 27. ld 28. Id. at 2897. 29. Id ill 2906.
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J2 . il cnlll!l/~. Belg.!.IIS f,2d lOs)' 1060 (8th 0,. 191m, C('fl (knic</ Jib 110m., P,iidt'llIJJllmUiJoce CG ~. Bl'n"~'u, 4M U.s' 100II (19831 JJ. 18 U,5.C. § 1\1611~ ) ) 4 III U.s.c. is 1962"'1, (bl. (eI, (d) 150 R.A.C.S. CIMIIIIIl', III( 10( lI y~ rr , 114 F2cl 1)S(1. I)Sl(Slh Clf. 19&61; Unlred SWfej ~ Robinson, 7fiJ f 2d 778. 781 (6111 0 •. 19351 36. Un/red 5!.1~ ~ 'urk!"'!!... . 52 U.s' S1&, sal (19811 37, Ser. e 8-. UIIltoo S"'I('1 II C'I/n!n;., 691 f,2d 91S. IIll''Jl} (I1lh CIr.), CM , dcf>1t'fJ, ~ M U.s. 856 (I!laJ); Un/led 5MI..., 1\ M~~w, 100 F,2d 85 (2(1 Cld, ( '/I denHld, ~61 U.S, 945 (l98}) 36, lIj/kt'll(" 452 U.s,. 583 (I981} }9. Un,rro SI.IK'I~, I.cmm, 6-80 f 2d 119)' 119'J (lI!h CI,. 191121 Cf'11 dMiNl459 U.s. 1110 1198})
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4a UIIik'dSIoII('J II U/I(" nl f2d 1514, 152? (1I1h Cn.) ct'ff. deI,,ffl sub. 1I()n'., MOI.IJ II U",rcd SI;rK'S, 469 U.s. 819 (19&11: $«, ~S , Sun s.--Ings and IDan AuocMOon II DI~Itk)tff, e15 F.ld 18?, 195 (91h Clf, 198n Unlled 5/dld v. SeOllo, MI f.2d 47, 54 (2nd Cir. (980), Un/IOO SidlE'S II C.,lock, 606 f. 2d 5)S, 5~ 6 (SIll CIr_ 19861 CM Ikni('d 480 U.s' 949, 119871: UIIlled SIolK'J v ilIJckwood, 768 F.2<I Ill, 1J8(1Ih CI •.). ~n (/('IIiro. 41" U.s. 1020 {l98:SI. "I C!II« nl f.ld ~t 1511. ~2 , $ft, UIIlled SIolIf'J v. 81ed~, 6?~ f2d 641, b6J·665 (6!h Ch.), ( M cknied JW 1l(lIn., PhilljPi \\ Unlled 51BltJ, 459 U.s, 1040 (1982). AJ. 5«0, r H, MIllI.f'/, 100 F.2d at 89; Unjli:d S"' I('J V. B~lInJliol, 665 F.2d 871. 1I'KI-891 191h Clf. 1981l. a'f! denied, 456 U.s. 961 (1982): Uniled Sl~t(') v. Cliff"" 660 f.2d 996, 1000..01 (~ Ih Cn. 19811, (ell dMied, "$4 U.s. 1156. (I~82I, H . C.,fltlY, 697 F.2d ~I 921 4S, M~/~el, 700 F.ld as. 4&. Un,k'dSr.lI.., \\ BIH~e.1OO r2d 10, 73 (2<1 Cltl, ("I dcf>1ed. 464 u.s. 1116 (I98l) 47 Id ~I 8) 46. Id. at 88-89. 49. Monll'Jallo v, S~r" jl C0Il1"'t'f(I~1 C(lIP. , ala f,2d .. 23, ~ 21 (S!h Clf. 1987). so. II.! Inc 109 s.cl 26S) , 51 St"e tfit oKcOtnp.-.nyl", no'I'> 20.)1 'IIP'J. 52. Unl!td S~1!t., \\ Rlccobrm>, 709 f,2d 214 (3d CIf.I, CM . dmftod.w 1IQrr'" C~nc",,/I"/ \( us. 46-4 U,s, 849 (m) l, n Id ill 224 54. 16 U.s.c. § 19(.2(. ). 55. U" I!OO Siale-s~. Z~ng, 70) F. 2d 1166 (lOIh Clf. 191121 , ce'l. denied, 464 U.S, 836 (1983) and $lib. nUll! Unll~'(J S!.1Iel V. Pot~I, 464 U.s. 828 (19831 . 56. Id ilt 1I!13. 57, Id al 1195, 58. IIK~I 56Q. 7110 F.2d 261' 59 Id al 21HH bO. 18 Us£' § 19621c1 61 lynch, W(IIJ II. 2 at n~, 726. l'l l 62 /k'll1ICI1 v Berg. ~S f.ld 105361 Id. • t ID57. b4. 16 U.5.C. f 19b2(d). 65 C~"('f, W f.2d dl 1526 II . 17_ 66. Id. 31 1518 c"lna Unliro S!~re, v Wlotl, 571 F.2d 1160. 902 (S lh CI,.I, «,.1 dcnltd 'lib. nom" (klph \( Unlled SIoII('J, 439 u.s, 95) alld II"'v~in, v_ Unlred SI;rI('j". 09 U,s, 953 (19781 61 C~IIt'(; nl F.2<I.' 15~1 , 68. WOOf/, 511 F.ld "I lIm·9Ql. 69. III( 10( Donav~" COfJ¥JoI""",, ItIC n1 F.ld 64/1, 652 11th Cit 1964). 10. 18 U.S.C. S 1963(11 11. IIICO 1I'()Vld~ ~ m~xlmvm nno 01 U 5.000, 18 U.S.C, § 1962(al, !lu1 thll "1,,'nnllVOl rJ n~ Plt1o'i~on, which alllllll!S to ~II Th l/l 18 offcn~, Impo~ i hllllllll '!rld mo, .. eompl,,oiOnr 'ilU(IUI1' 18 U_SC, ! J571 72 III u.S.C. § 196)(~) 1), 18 U.s.c. t 196)(bHht 14 18 U.S.C. f 196)(dKII\Bf and (dKl). 15. III U.SC. 1 1961(IHmI 76. III U.S.c. § 1964(c)
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11. Id 1/1, Scl:llm~, 41J U,s, 31 4~9. 79. See ~'I1t',~IIy. 1<:.n; dll L1c M,'" v Te'lt; du tac, 111(., 772 f2d ~67 (81h Cit 1985), c"fI_lknj('d, ~ 15 U,s, 1062 (19861 80.~, Cliliom >< H,bem'J NJ/ 'I B.lnk. 8~9 Fld un (51h (I. 19&8); Spe,~ v 8oesk~, 849 F.2d
60 (2d CI,. 19811); Haroa), III(. V. Alt!('(k~n N.11, 8~nk ,00 T,uII. 747 F.ld 384 (?III CI'. 1984), ~f"d, 47) U.S. 60li 119851. til. 887 (. 2d 15S1 (IIlh Cir. 1989), (~rt , denied _ _ U.< _ _ 110 S,C .. 2&2D (1990) . 82 Id. al ISbI. 8), ld 84 Id 85. for a ~I" Iorm eornpI~11"II COfIIilnlnl RICO o1llcio1llont. SH, 2J Am. lUI. 1'1 , I'f Srorl.tM1 (om. mo!"'~ hc~nfl('S. Form 4,2 (SIIpp, 19881. On n!_ 1)llIe UnlY!'O;ly rI "'~b.m~ SdlQOl 01 law It • (011('(llon of RICO C!ll>11llaonli I"d IndiClmeolj mell In '~od~I,,1 co"n, ~MJ1.Hld lhlt coonlry, Ask fa! BIllY, RICO, 86. sro'miI, 4?1 U.s, al 496, 8? U/ioI' v_ fouf~J, 867 Ud 8n 151h CI,. 1'1119). 88. a47 F.2d 1505 (1hh Cif. 19U) 89 Id " 15U (('fllpNsl~ In 01 gln.1) 90. /d. ~I ISII 91. Utti!«1 SYll'i V. tIJ,I/ey. 618 F2d % 1, !IM {IIIh Cil 1982) fM denitd ~S9 U,s. 1110 11983). Coo. (lJ, ell 8t'f\1IC't/1o( U"I!OO SIolICITIIIII CG, no f.2d 308. liS (2d CII, 1965) ce'I. /knl.,u 474 u .s, 10S8 (1986); 8.' . /-I1'ich \\ [mlshl Rcrni"l1 CG, III(. 751 f.2d 628, 6)] Iltd Cil 1964); I/Il /lop 1\ COIb!!1 MJ"1It' I't.ly$ Inc.. 802 f.2d 122. 122IS1h O. 19861; IIJfO(Q Inc., 141 f.2d ., 400.
92 . .set-. 0fI~/J1 Publi<;J/I(III~ 1:1(, \\ K4b/" NrwI CG 8114 f_2d 664, 66II 12d CI. 9891; Rt'yflOkis v l~w ~ ~ CG, II82 Fld 12.91?thC... 19891 9). Unlled SIoIIf'S V. Halper, _ _ U.< _ _ • 109 s,ct. 1892, 1897 (1989) . \1<4, See jp!n('fJIIy. Unjll!d Stll('J 1\ C'.JYSO!I, 795 F,2d 278. 281lJd 0,. 1986), cel/. !ItI!Ied, 479 U.s. lOS4 (1981); UnllOO Sldl", v Boldin, 772 1' 2d n9 (IIlh CI.,). mod on (rfher 810IIII(/), 779 f.ld 618 (19851. 950 Sf'!' (If'llC'tilly. UfIiI«I SUI(') \( ullJn.an, 1110 r2d 54~ (6th CI~ 1981); BoMn, r3d II 1211-10.
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97 109 500 11192 (1989) 911. Id III 190). 99. ld. 100. 18 U.5.C. 101. 16 U.S.c. 102 1(/ 10J. 18 U.s,C. 1O ~ 18 U.s.c. 105. 18 U,s£.
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Supp. VI
t 196)(1)(21.
5 1961ll1(:ll , §
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S 19(111)(6)
108. 109 5.CI. 2651119891 . log. ld.: St.. ",~ UflitooSloill.'S ~ 6iut'lI, 866 F.2d O.l (IIlh Ci l.) «n. <leniN!, 110 5.Ct. 1~6 (1989). 110. Sedim.l, 47) U.S. al 491. 5t-<', flcIK hhi1IX!' V. foclllll'l, 879 F,2d 1290 16th Ci t. 1989); VQ<jldAj,COII/. v R08("~ 834 f.ld li97 17th ell 1981); Wilt.'ux v. ',1>1 IIIk'fI!.Itc fI;I"k 01 Ortl/I0Il. 815 f ,hi 522 (9fh Clf 1981); Cul/& 'I M~'II><>I' 1.1.1111 698 (2<1 C,r.). U'rI. 6enrt'd, 48) 1021 It937I, .At1llCO 11Kils. Ct"edrt COIJ1 \\ SH w.~ Co., 1&2 fJd 4 ~5 j51h Cli 19861: IIK"I S6Q 180 F.2d 261_ 112 _AnlMdlnS 1!If' Ritckt'lei.'f In~lJI'lI(ed ~nd C"'IIIP! o.g.nil.llonf Ai:1 I:I~ II'*! Selldlf' Comm. on tile Iml/f:j.,1'. lObI Cnns., 20 Seu, lAp'!! 24, 1990) 113 Spcnc«', Thtt Implf)f)('l C,vW RICO CI. lm: If Sue/!. 7~lnll h,SfS, Cdll II 8t' 6~l!led w'l/! 5.1nctlolll f The AI. UlV)'f'f (1990)
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The Improper Civil RICO Claim: If Such a Thing Exists, Can It Be Battled with Sanctions? by Elwyn Berton ~nct
Twenty years asP the YIIOrd "RICOH WilS nothing mOil! than the shortened version of the latin name "Ricardo:' NOY.', the utlcr,lnCe of those two syllnbles within car路 shot of anyone connccted 10 the legal profession will bflnglo mind Images of
an explosion in federa l dvillitigation not seen since the passage of the first anti.
lru)\ laws. 6,,;c\ Likewise, 11II8arion <M'!r the approprl. atencss of imposing sanctioos uoocr Rule 11 1 against a110rllC!yS for asserting frivolous claims Is rapid ly on rhe rise. One commenta tor comparing the tWO areas of gf()YIth noted:
"Indeed, many howe said that Rule 11 has replaced dvll RICO actions as the co" agc Industry of the litigalion bar:" Ra ther Illan one replacing the other,
however, il appear> Ihm the two <Ire 'ound in tandem: the civil plalnllff threatening Io/ICO find the defendanl countering with a n.>quest for Rule n Simctions for the Improper uSC of the statute. (As of 1987, securities fraud/RICO cases made up aroUl1d 15 percent of all Rule 11 ca ses, with plaintiffs the target of f(!(llieStS for sanctions In ovel 8'1 percent of these cascs.P Ironically, RICO, which stands for "R.1cketL'Cr Influenced Cornmt Organilat i()nS,~ is 'he title of Chapter 96" of the United States Criminal Code. It Is TItle IX of the Organized Crime Con'rol Act of 1970S and 'hus appears on Its face '0 hilYC been intended as a new Yo('apon fOI the Justice DeparTmen"s continual bat,Ie against the mob. I. is, hOW(.'\ICr, RICO's civil remedies路 th:lt have employed 'he
290
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,
Sepu~mb('r
1990
most lawyers. Civil RICO Is now routinely pleaded, though not always successfully, In areas bearing no relationship what. sower to traditionill notions of mg.1nized crlmc. This ph(!fl()mt'Oa has not been de. scribed SO di s P.l~sionately I)y the courts: " RI CO is just, in my view, a rather sloppily thought out kind o( way to get the Mafia that <Nel)'bociy Jumps on so they can h3\e more fun with (raud:" Because civil RICO e)(poses defendants to huge liabilities in the (arm of tre. blc damages and allOrrley's fc.-cs recoverable bv soccessfLI plalnlif(s,' the mere al. legation of a civil RICO violation can have an in terrorem effect on defendants, thooreticJUy forcrog sctdemcots far in Cl(C~5 of Ihose g~nl!mted I7t the trilditional fmud claIms that afe now g.lthered under the RICO umbrella. (RICO is esseo tiall y a means of punishing repcalt.oQ illegal acts, It targets as defendants those who httve ensased in at leastl\-.u 01 the pn.>dl" lte acts listed 10 18 U.S.c. § 1961111 with. in a period of ten vea fi- the "pallern of racketeering activity" or PRA defioed In 18 USc. §1961[S]. Most civil RICO clnims are ground(!(1 on the various types of fmud found wl :hlothis list 01 predlcale ,1CtS.)- As such, RICO can become a powerful club for plaintiffs. The attempt bv defense lawyers to use Rule 11 as a shield from the blows, however, has posed one enormous difflcuhy: it is ....:!ry <lWkward to describe a RICO claim as frl~lous whcn nl) ooe, not even the COUftS, seems to know exactly whllt RICO is or how to use it. The feder~1 circui ts Me split on their constructiorls of the most b..l sic clements of the statute, making it almost mpossible for even the most diligent of attorneys to nccurntely construct a RICO pleading. The courts do not seem pleased with a SlJtule thill gives rise to such dlSJ)aratc! definitions. The Supreme Coun of the United Slates has p.lssed up two opportunities to clarify the most troub lesome of the stiltute's definitional elements, that of the "pattern of racketeering activity; (PRApO arld other definitions within the statute remain confusing as well," Icavlng the aiJo..e.quoted RICO critic arid (cder... 1district court Judge to e)(pound thusly:
tl)'. like the Flying Dutchman, the statute refuses to be pOI to rest. Be<lting <18<linst the wind, it has Jet· tisoned an effusion of opinion s which bobble in its wake.NIl One such Ol)inlon has CfCilted /I new area of confusion. The use of RICO against ami-abortioo ac tivists has led to debalc (NCr whether lhe defendant enlerprise under the Slillute mUSt be one thaI seeks to m"ke a mone/My l>rofit. The fedeml circuits Me chilrac terl stlcally split on this issue as v.ocll, and the Sup~ Court has thus f"r refused to scttle the milller.1J Failure of the cou rts to ccment these definitions has 100 many business leaders to call on Congress to limit the stJtute so as to e)(clude otherwise legitimate busioess enterprises from RICO's slX!Cial liabilities. As of this writing. the most reccn! move has been the introduction of a bill in the Senate that would nOlllmit the cla ss of dcicndant$, but would reduce civil RICO d amages fr(lm treble to a mere double, and would mise the burden of proof necessary to ~I,lbli s h the predICille acts from a preponderance to the clear and convincing 'evel,!" N this time, however, no action has been taken. With both the courts and Congress failIng to rein In Ihe starute, it COntinues to run free under the steady horsemanship of crea tive and ImaginJtlve 1)lalllti ffs who seek 10 transmogrify otherwise ordinary civil actions into hugely lucrative RICO Judgments. The dlm,lte Is one thl\! en. courages forum shopp ing. .,nd In rhe hearts of the bold, plOmOtes the use of RICO as a reml..->dy for almOSI ;IIlY wrong. On the theory that SOme court, somewhere, has probably sus tained its usc in just such a situa tion.
One dramatic C!xampie can be found In the case of an 011 comp'lr'ry executive who felt he had been wrongfully discharged for his refusal to partici[l(lte in what he felt to be an Illegal scheme. Williams v. HilI/') outlint!s the dllegalions of William M CKay and Harry Williams, both former cxecu ti ves of Ash. lalld all Co. Both men charged that they were fired because they refused to go ;along with Ashland's bribing 01 ~ral officiills of Middle Eilstcm countries in violation 01 the Foreign Corrupt Pmctices Acl"· M cK.'ly and Williams further 111_ leged numerous other predlCJ tc acts under RICO such as mall ft;lud , wire fraud and securities fr,1OO. According to an artide ~ Thomas Harrison In the February 1989 issue of the ABA joUrnal," MCKay and Williams were both succos~ ful at trial. Whe,1 M cKay's actual damagcs from lost wa8~ were trebled, he recelY(!({ an award of $43 mllllo,\. WllIi(lms was awarded a I)altry $23 million, and in Harrlsoo's words, '~ though to add ins(dt to injury, the jury threw In $3 million in punitive damages - presumably in case Asl-Iand f,ll1OO to get the point:'" Numorous other defendants, fl""'" of whom, if ar-r, would be characterized as having anything to do with organized crime, arc gcWnS the 1>olnt. How can thi s bel Was nOi RICO aimed specificilily at the mobr The 5tatl..'(/ pur· pose of rhe Organized Crime Con trol Act'· \.\1)uld seem to indic~ I C that It was: It Is the purpose of thi s act to seek the er(ldicalion 01 organiZed crime In the United States by strengthening the legal tools In the evidence gathering I)fOC~S, by
Efwyn Berton Sp(H1CC is a M<'ly 1990 sri/duMe of the University of Alabama School of talv, and currently ;s with the Birmingham iirm of Lllose, Simpson, Robinson & Somerville.
HRICO Is a recurring nightmare for federal courts across the COun-
The A//Jbamll Lawvcr 291
establishing new penal prohibi. tlon s, and by proYidlng enhanced S<lnctlons and new rcmedlc$ to deal with the unlawful OIC1ivi ties of th ose Cn8i18Cd In ofsan/;:ed crlmC! (cmphOlsis addlod}.'o The stJ tement s rdcrfing specifically to RICO, hOWilWr, were not so IImlled: The proYisions of this title ITiTle IX, Racketeer InflucnClod Corrupt O rgilnizillionsl shaH be lIberally conSlruoo to cffcc/UalC it} remedial purpose (empha sis added),J1
As a result of lIS aUrOl ctl~ civil remedies and a statemenl of purpose commanding COM1S to construe it libetal· 'V, RICO has been the basis of suiTS filed against almost anyone, with only the aforementioned creat ivilV and imagination of plain tiff's lilWYCrs serving as a limIt. As will be ~hown, hOWtMlr, al some eXTremely Indeterminate polnl. creativity and Imagination become frivolity,
" liberally comlrued" or just
plain mcrillcssl The fo llow hlg nrc offered M a brief cil talogue of the dlsparJte uses, cerla inlv not alwJY~ successful but attempted noneth eless, of civil RICO, Afterward, cases IIlYOJving requests for sanctions will be reviewed in order to sec if the Intermlnancy of that 1)OInt of frivolity renders such requests praCTicaliv useless as a means of STemming the civil RICO tide, Saporito v. CO'l1buslion engineering, Inc.u and Crawford v. La 80ucherle 8ern/lrd LId.?' are bJt two of the large and sl ill growing number of caS('S combining
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chargcs of ERIS,," viola tions with RICO dJlms," In Sa/>omo, SC'v'Cr<l1 Cn1llloyc(!S ch,' rged thlll they were Induced to retire earl y under olle pension plan while management wa s concealing Ihe eMISterleC of a second, more lucrJtiYC plan that would be offcn.od 10 olher employees. The plain. tiffs were able to ch aracterize this as a bre<lch of fiduciary duty su ffidenl 10 in· voke the fNlcr'<Il mall and w ire fraud sta· u.J!es 16 as the necessary predlcalC! acts Uhe cou rl noted that plalnllffs had failed to plead the frauds wi th sufficient par· ticularitv but "lIowed ilmendment 01 the complainl n ). In CriJWford, the court found thaI the knowing Illegal tran. fer of retirement phll1 assets s.1Ilsfled the racketl.!ering act lvltv requiremen t of RICO, 1)fl!Sum· ably dispensing wi th the rcC!ulr~nlen l thai l wo such activiti es within 10 years
be
found .'~
IndlXod, the en tire field 01 emplovment and labol law is now being permeated bV RtCO. AlI orn l>yS Ir<l M ichael Shephard, Stephen I-lorn Imd Robert l. Duston of the Washington, D.C .. firm of Schmeltzer, Aptaker & Shepard detail in their article " RICO and Emplovmcnt LlW"" the recenT appliciJtion 01 RICO in civil .!ctiOnS i1gainst employers and unions for wrongful discharge, conTraCI and ERISA ClilllllS. RI CO Is <lIsa being used byempl¥rS, 5i1V the three, nOling tnill employers can use RI CO <lS<l inst employees who have defrOluded the comp.llly or who h<TVe set UI) compel ing business viola tiYl;! of v.lriOUS business tOri laws. Plaintiffs in [ ,r. Hullon MorIgiJlle Co. v, Equlltlble Bank lO attempted to
characteri ze fraud and neg ig~ncc claims against ... bank as RICO chargcs, but the court found RI CO to 00 inappllcable,i' ilS did Ihe court in a similar situa tion described In Buch.ln v. Pcrcrsoll BallkP MinorilY shareholders h;we sued mao lorlty sha reholders under RICO ,lfter char,l ctCrl zing breaches 01 duty as mail and wire fr.tuds," while alleast one comPilIlY hilS tried to sue shareholders of an· other by cnilracterizing an alleged convcr~lon as <l RI CO predicate act .1' The field of securi ti es hlUd has al so I)(.>(ome increMi ngly ,Tn ,Ireil for the use of RICO. Two rccen l t!XiImplcs arc fou nd In Hybcrl v, ShearSOll Lehman/American Exprcss, Inc.,Jt and In re Gas Rocfama· lion Inc. Secur;lies LI/;gJrloll.- In HVi>crl, 1)lain tiffs sued a brokerage house for falsi· lying finan ci al statements as part of a scheme to facili tilte churning. while in the Gas RllClanla!lon caSt) Iht! charge was one of fraudulent misrepresentation in a private plaa:m~nt ITI(!mOr'<Indum offering gas reclamation units (which the court held to be securi ties), tn Shaw v, Rofex ~¥.!Ich. USA, Inc"u a 1)laintiff w.lS able to char.tcterlze as RI CO hi s clilim th at iT company owned by fou' lgn interests had f",sc'y repre~n ted CM'nel'Ship by Uniwd Sta tloscitizens in order to come under the protl!ction of customs laws which \.\OOld ha<.e ,,1ICM'Cd the defend,mt companv to prohibit the impartalion 04' Items bearing lIS mark by the pllli nIl fflim l)IJrtcr. The fie ld of health care is beginning to sec its shilfe of RICO 5ui ts <IS well. In Doos '·60 v. Republic He,l/lh Cilre COfP.,u 60 plaintiffs allcglod d scheme to defr.lud Medic<lfc; a scheme to fraud· ulently sell Republic to American
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Mcdlcallntcrnatlon (AM!); malP~ wire" and securities frauds·' In connt.'(;tion wilh the acquisition of a thi rd corporati on by Republic; fraud In the "laking pr!vale~ of Rcl)ublic; and frilud in denying to Ihe plaintiffs !he lifetime care for which they had contracted . And, !hough apparently unsuccessful, plainlif(s in KtMlml v. Schonbcrscr;" elderly nursing home p..1llents, aneMpied to use RICO to battle their upcoming IlVlction from the home. NOI tNCn products liability has been immune from RICO. Dow Chemical Co, faced RICO charles reccntly in connection with allcgatiorl Sof fraud In Its marketing of two different products, "Sarabond" imd "Roolmate,"·) The foregoinglJt no meilllS ildequately describes thc technlCill aspects of how the RICO st.,tutc works, but It should demonstrat!.! th at enough confusion Slrrrourlds the S\iltutc to mAke the labell ing of Its use in a particular set of circumstances (IS "improper" very difficult. It also should serve as a warning to generill civilli tig.1tors: If you Me not nlready, ~u will soon be seeing RICO in complaints against your cl ients. Whether a mOlion for sanctions is an ll\IiIilable weapon wi th wh ch to deter the plainliff who ci tes RICO merely to up the ante in sett lement talks Is, unfortun ately for defendants. not so cer1ain,
his argument Is wellg/Ounded In filet arid warranted by existing law or a good fai th argument for the extension, modlflca· lion, IY ~1"5<l1 of exiS(ing liM', and 2) !he Interposition of a pleading. motion or other paper fOr an imPrOPer purpose such as 10 harass or to cause unnecessary delay or needless increase in the COSt of Iitig.ltion,4' II would seem to be extremely awkward to tell an attomey thaI his inquiry inlo RICO law is unreasonable simply because he failed 10 underst;md all ofil. The most learned jurhts in the n.. !ion do not lIgn.>(! e)n even the most ba~ic of RICO's clemen ts. Thus, only the most egregious failures to r1!sellrch RICO will qualify Ullder the first prong of Rule 11, leaving the second prong. or the improper PUrl)()SC test, where R\rle 11 imd the vcx.1 ti ous litigation statute ()'A!riap, as the most likely ml.'thod of oblilining sanctions.
that SI927 sanctions could only be imposed against allornt.oyS .. nd decided the case under Rule 11 language instead Ix!CilUse !he case was brought on a pro Sl' motlon.'o Sanctions were requested because the I)I.1intlff had app;\rently allempted to characterize as a RICO claim his belief Ihat he was being conspin.od against In an effort 10 deprive plalntHf of his property. According to the coun. plaintiff had flilod numerous suits charging a conspiracy, all of which were dismissed. It 31)f)Cars !hOlt plaintiff con tinued to refile, adding to hIs list of alleged conspirators all !he court officia ls previously encountered In hIs tlllCml>ts Ie) pro5e(ute the l;lWsUIt.l' Finally, plilint iff described his alleged consplr,ICY In RICO term s. The Damillnl court discussed its impoSition of S;1I1Ctlons in !crm s of bolh prongs of the Rule II test as follO'Ws:
Take, for t'X.lmple, OJm",ni v. Aci.ln1S,·' where defendants asked for both Rule 11 and § 1927 S<lnctions. The court noted
In ZlIld/v", v. City of l.CJs Angeles, supra, 780 F.2d ilt 831, the court
M.C.P. Industries, Inc. DKltl,ll, AIatJamII
has sold Its
How merilless is merill ess eno ugh? Given the Incredible increase in the use of RICO by pl~ l nl i(fs and Its Inherent In wrrorem effect (treble damages c,ln scare even the most Stalwo1ft defendant), defendants have reached for any help they can find . They have seized primari ly upon two mcthod~ of attilck: Federill Rule of Civil Procedure 11" Ilnd 28 U,S,C. § 1927,4' known aSlhe "VCICillious lillgallon stiltutC:' Rule 11 has bct!n charJetcrized <JS a de(erldant'S tool, arId this seems in general to be true." It al1plles to pl eadln g~, motions or other papers a/ Ihc lime of slsnins (Ihls Is important because the! volume! of RICO litigiltioo going on at any 1><1rt1cular moment is such tha t the law In this area changes ralhc!r rapidl y)."' In addition, the rule proscribes baSically two types of mlscooduct: 1) the fa ilure of an attorney to conduct II reasooablc Inquiry of the sori necessary to support his knowlt.od ge, information and betic' that
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•
SouthTrust Bank Investment Banking Bilmingtllm. AIabImI (205}2~-5966
Juna 1990
29J
"[W )e lIffirm tha t Rule !1 SlInctions shall be assessed I( the pal)Cr flied in district court and signed bv <In 1I110rnl'y or an tJllf'f.'presemro pdrty Is frivolou~, legilily unreasonable, or without faClual foundlltion, even though the paper was not flh.>d In suOjective bad faith [Damian i cOurl'S cmohilsls),"
The ZaldIVar court stil ted
"(w]lthout question, successive complaints based upon I)roposilions of law previously rejected mOly conSlilu[e harassment under Rule 11 ••.• For a cldlm of harassment [0 be sus!olined 00 the basis of successl\'(' ming~. there must e~i~1 an ictcnllty of pJflies involved in the ~uc cessivc clJim, and iI dear Indie,llion that Ihe proposition urged in the repeat dalm was rc~r~1 in the eilrller one lcil.llion omilled) :'
The Siandard ~opted bv the Ninth Ci rcuit thus does not require Ih.lt the litigant h.lVC acted in "suble<:tiYe bad (alth." The papers arc to be judged bv an objeclive ~t.lnd ard Id. at 83 1-832. App l yi n g thl ~ 51i1ndilrd to the In· Slant lawsui t, this Court finds thM the Icgal argumen l~ I)roferred by p lll i n l lff~ are frivolous on their filCC. Tht..,. ha~ presented legal arguments alread\' alred, and rejected. In numcrou~ other lilwsultS. If anything, the I)Jpers ~ubmi lt t-'(I by plillntiffs <Ire indiCill ive o( subje<l ive bad (illth (court's emphasIs).
The Courl concludC!S Ihallhe st;md..,d adopted by [he Nlnlh Circuit (lISthe faCIS of Ihe instilnt C.lse IOami.wi) like a glove.'l Thu~.
h ~em S cI(W Ihlllll l)lainliff who l ri£!~ 10 rt:'surrL>Cl an earlier, dismissed, l)rcdlcJ te aCI as a RICO claim wili l>tQb..lbly be subjeel 10 ~nCllons. Unfortunately, Ihis ls nOl Ihe usual occurrence.U
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CRWIT CARD "
likewise, dlsrcg.u ding a clearly appli. cilbl£! SlaWtC of Iim1t<lliOnS is an almos! sure wily 10 draw Rule 11 s.lIlc;: llons. Fred J\. Smll h Lumber Co. v. Edldin u provides a clear example of this in Ihe RICO arcna: " No comlK'tent .morney w ho made a reasonable Inquiry IIlIO the stille 01 Ihe law , •• could have lhought thc Ipleading] had any p0ssible merit. He should haYe known It wa~ lim..... barred:·u The problem here, hOWMr, Is Ihe same one th;l t hilun t ~ i111 of RICO. u llIlI 1987 when thl' Supwm(' Cou,t of the Uniled Slilf(~S dCCidc.-d Asency Holding Corp. v. MtlIlcy-Ouff & A H OC. Inc., " Ihe federil l clrcul ts were i1PI>lying different Statut e~ of lill1llatiOib of RICO." l\st:tlty I/o/dlllg Corp. mJde cleM Ihilt RICO's stalule of limitalions would be borf(N,'f'(1from thaI of i l ~ aneestrill cousin, the Clayton Acl," resuitinK In il (our..year limitalion l)Cr-
100." AI ICil ~t noYl, hCM'CVer, it seems dear thaI dbrcgilrd of the fou r-yt.." stiltute of limita l ion ~ is ;lnother Silnclionable act. As In Ihe C;I~ of re~t ltiVl' claims, howeYer, this problem " Iso does nOI oft en aris.e. The remaining !)foblem 15 one Ihal d()('1; ilrise w ith some frequency. It concerns Ihc illteml)I 10 describe as a violation of RtCO ilets Ihill simply do not fit. This broad cil tegoriZation Cdn be broken down Into S('\I(!(;'II more limited areas, IllOst of which OVCrlilP to J )ignificilnl degree. For inStilnee, If Ihc chil r~c lerilal ion of the dcft:'ndant's acts as predicJ te Jcts under RICO is nOt I!self W(!1i grounded In faCl, Ihcn of course the RtCO allegillion w ill filll.l~ well. Th,l! 1$, If a plill ntiff allempts to descri be as mall fraud an acIlvity which clearly Is nOI mall fraud (nor even, In good fili th, arguably so), In ill'! i1" empl to show Ihal l>"lnicular mail (rJud as il pre<iicMC act under RICO, the enIlrc d.lim 1\ prejudiced ~nd S<lnCllons may well Ix' ImposL'Cl. Brandl v. SChill M sQC., In[..o provid(Js a perfect cx.lmple. Hme, a controlClor sued a construCl lon ma n~ger fo, failure 10 p.1y on a COntrad. The court refused 10 allow the 1)laln /iff 10 lurn whal amounl('(1 10 a simple breach into a fraudulen l scheme of lhe <ort Ihat would September 1990
suppon m .. il (raud, wire (r;lud, robbery or eidOrli on d .. ims. "Fril ud, however;" said the court, " is <I far cry from breach of eon tr,le l,"" The court then wcnt on to impose s.1neti ons against the plaintiff under Rule !1 becilUse the illlegations of fraud were not ~II grounded in (aet.u Likewise, In I:.F. I-/UllOn Ml)f!8ase Corp. II. EQllildble 8,lnk,u Ihe court found Ihal bolh sides had IIlol<llt>d Rule II (b~ cause bolh I)arllcs werc c(lually liablc, the courl Imposed no aclllal sancllons} by cliliming and counlcrcliliming RICO solely for " t[lcl i c~ 1 reil sons,"·· There, the coun hild alreil d~' warned bolh p;lrties 10 kl..'t!p Rule 11 in mind when answering the summtlry judsml'!nt motiOns ag.. in$1 them . Apparently both parti!!s, each of whom were charging the oth(!f with fraud in conncel joll with a rleSI of fa cts that had already resulted In a First Ameri'iln Mortgilge Co, c)(e,utive's pleilding 8uilty 10 fraud ,hillgcs, had lost money On FAM eO's problems and were trying to CUI th eir los~s, cil c;h by suing the olher.
Ac,ording t, the , ourt, when the summary judgmer motions were cross-rued, discO'.'Cry hact oeell LJndcrway for some l ime. The court felt that both parties should have clearly seen Ihat the predicilte (lCISof frilud v.oe~ not well groundt>d in fact and should hiJ\o'l! dismlsS/..'Cl thC!m.ol Note, however, the denial of 5anction5 Irl MOrc/1l II. KI(!in.u There, plaintiffs ilttempted to charactC!(izc the sclf-dealing and siphoning of fund s of the general partner ;lnO top C)(''(ul ives of a clinical lab Ihlrtncrship .15 mail frauds. The 51)(th Ci r, ... it <lgreed thilt th e I)!i\i ntiffs' illiegations of m<lil fraud wcre not well grounded In provalJle fact," lJut fa!lt>c! to In\pose sanctiorls agairlst plain tiffs' .l/torneys because of problems they had encountered In discoYering the Inform.,lion that would h;lIIe 'evealed the frivolity of the ch,lrges,"
This ground for sa ~cti ons, Ihe failure to recognize that the facts of a given si tuatlorl do !'tOt add up to the charge compl<llned of (presumably under clrCUTllstances where r&lsonable diligence on the Iwt of the <I11orney would afford
such recognition). should be distinguished from the ~itua l ion where Ihe ai, legation of predicate ael5, ,-oven if well gfOundl.>d In f.1CI, slill would not result in a RICO claim . In the laller situation, sanctions aplleJr to be mu,h less likely. Note, for Inslance, CfCJUVC Bilth Products, Inc, II, ConnectiC{Jt G~mer;rl ~j(e In$. Co., •• where failure to properl y allcgc a p<1tlt!rn of filcketooring at1ivlty wa s held nOI 10 SUPI)Qrt Ihe impositio" of sanctions under Rule 22: "There is no basis for re(tuiring plain tiffs to hall(! anticipa ted the direction that th is Court's I>ostSec/lma decisiOnS would take; In· deed, we concede that our route may not ha~ been the clearesl ilnd most predictable:"(l Likewise, the COLIrt in Rochester Midland Corp. II. Mesco'! refu;ed to impose Silnctions for failure to adequiltely ,'llege a pattern of rilckeleerin8 activity: "The federa l courts havc struggled for more Ih(ln five yea f~ ~r what cons titute s a civil RICO
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In rare Inst.lnces, the technically 1m· proper pleading of a predicate act will result In sanction s. If Branclt means Ihm trying to cilll an aCI a fraud when il dellr· Iy is not a fraud is S<lnClionable, and Croativt. Bllth de$Cribcs the situa tion where even If thc act Is a fraud, It 5tlll docs not describe a pal1ern sufnclent to sulllXlrt a RICO claim, then Barlow If, Mc/.eod'l is a case offalllng to propelly plead the underlying frilud in a Rule 9(bP' technical sense, regardless of whether the filcts might describe a fraud if correctly pleildl.'d. The Barlow court, ~r, in Imposing sanctions <lgainst lhe plaintiff for jm· prolx:rly pleading liS predicate acts, seemed to reler 10 the Brandt type of fail· ure 10 properly ground Ihe allegation in facl: "[P]laintifrs (omplaint and 01ll)05itlon to thc motion for summary judKment Me woefully lacking in details. The ple.:Jdings consist almost entirely of conciusory allegations .. , , This lack of specificity strongly suggests Ihat counsel had no factual IxIsis for bringing the aclion .. , , The m(lgiSlftlie in this case had flaggl,."<1 this as a polentlal problem in his ... order iml)OSing a dc(au ll judgment against the other defendants for IIOt cooperat· Ing In discovery . ... (T]he mag· istrate noted tha t with regards \0 plaintiff's RICO claim, it 'appears that the plaint iff Is merely hoping that through the produ<;lioo he ffi"Y hit pay din:
-..
"It is clear that Ihe only reason thlSe stmutory clilims ~re allcged wilS bt.'Cal..l$e they contain treble damages provision;. COl,lnsel hilS therefore not only fnll!..·d to make sure the pleadll'8s he signed wer!'! well grounded In fact and warranted by l.:rw, but he has also Intcrposed the pleadings for Improper purposes. Use of the statutory claims In a contt.'X1 such as Ihe in-
stant case smacks of exactly Ihe ki nd of bad failh Rule It san~lions were clcatcU to curb:'" The more usual response to a case involving mmely a technically impcrf(.oct pleading. however, appeals 10 be em· bodied in the OI)lnlon In Beeman v. Ficstcr." Though Ihe Court of AI)peals found the plainllff's complaint to be, quo ting the td,,1 court, "nothing other than a nightmare:'17 the court found no evidence that the plaintiff lacked a good faith belief In the clttension of RICO .md likewise found no Improptr purpose (or the plCildlng: "The basis of Ihe dlstriC! court'S concluslonlhat the complaint W.1S not well grounded in fa cl ls simply a pleading failure. The fJC:ts reasonably discovcrl,.'(1 by plilintiff ilnd his counsel, ;"IS alleged, faill..'(1 to fil within the pattern o( facs to which RICO provides a remedy. This alone, ~r. cannot be ti"lc basis for SilJlCtionSi othelWise e'VCry com· plaint dismissed under Rule 12(b) (6) would be sanclionable."l' likewise, In Omcla/ Publications, Inc, v. K.lble News Co.," Ihe fJ llure to plead pred iciJle <Jcts of fraud which formed the basis for a RICO claim "ith S~j fficlent partlcularilY did not support, in the Sec· and CirculI'S view, the district CO\Iff'S im· 1)OSition of sanctions. Inslead, said the Court of Appeals, plaintiffs should have been allOWl..'(1 10 "replead" their RICO counls~
Note illso thai in Della education, Inc. failure to plead predic.lte acl frauds with sufficient particularity did nOl resu lt In s.wellom.1I Rhoades If. Povtoc/l·' provides a similar exJmpie concer"lng the IrnpropC"!r pleading of a substantive provi!lon of RICO ilself ilS opposed to a badly pleaded I)rlodlcate act. Here, plaintiff h;:ld pleaded the "pcfSOn" and HentCfprise" as lhe same entity In a cir<:uit that had held against thi s construction.·' The court rcfus(.od to imlJOSe Rule II sanctions, nOllng: \I. I1ln810i~1!
''Thl:! defecls In Ih~ RICO cl,lim might be cured by af1'cndmcnl, and the enterprise theory proposed by pl<1itlliffs h<1s fou nd apl)rovalln nt least one reported decision."u The court went on to charaC1erlzc the entire RICO v, Rule II contrQIJCrSy thUSly: Se~tmbcr
1990
"The cour! is cognilant of the in 1C!rrOrem I~r of RICO and tht' nurry of mcrltless RICO claims. bUI ill thi s 5tilge of the proceedings docs not find plainliff's cI.llm so Piltcntly meritlf.:'S5 as to iMlilrd Sllnc· l iCln$. Furth!,!r, Ihe court is <llso iMlal"C of the usc of Rule 11 for mere harassmCr\1, a practice which dulls the spirited ad\lOCacy that is the lifeblood of fooer.ll IlIlgation. AI· though su,h free-wheeling Rule II Drilcticc milY be standard in other feder."!1 dislrict> I)f IhiSSlate, il is not approved by Ihis cour!."u If all it lakl,!s to avuid Ihl,! label of "patenlly merit less" Is fOr the plaintiff's RICO theory to havc found approval In at least one repol ted decision, reg.1rdless of wheth er that decision WilS rendered by il trial coun and subsequently vacated, or wrill en by i1n appetlilte court and later CM!r!urm..>d, it witl bt! difficult indct,(i to Con~truct a sanclion<lbll! RICO com .. plaint, rlO matter how Iml)ropcrly Con .. ceivccl. Fortunately for harried defell .. d,lIlts, failure of the plaintiff to correctly construct /Iny part of th e RIC O pleading stili apt>cars to be worthy of sanctions. Failure 10 adequately plead ~hb prediCalc aCts aionlS with an incorrectly al· leged palter of racketeering ."!Ctivity, as well as a comph~le lack of RI CO i njury·~ was enough to earn sancti ons agai nst the plainTiff's attorney in /--Ienr)! Y. Farmer Cit)! 51,lte 8<lIlk," and similar total fJi lure In light of adYice from the ,ourt itself concemi ng thl,! dt.ofidencies was illlparenTly meritl~ss ~noush In Chris & Todd, Inc . Y. Arkansas Dept. of Fin. &- Admin." Thus, it appears th at RICO Is ro un .. settled an area of I........ that almost, but not quite, any assertion made in connection with it can appear to hilVC been made in good faith fo llowing reasonable inquiry,tO
of th e United Siaies or limited by Congress, defendants looking (or a way to beal back the onslaught of elvil RICO d ,lims will largely be b luffing when tht"!' fight back with request s for Rule 11 and §1927 sanc tions. Glvcn the n(!ar 1m· possibility of determining what a proper RICO cloim is, It sterlls likely thol courts will continue to be very hesitant in char· acterizing one as improper. f oolllClle!l
1 !"ed, It. Clv. 1'. 11. 2. V"If{). Rule HI" C'I!lc~I"tl,llvs,.. It6 F.R.o. 169. (990981) . 1. ld at 201 .. 202 . ~. 18 U.5.C, § 196f.!9&a (19821. 5. t'ull L. No. 91 ·~ S2, 84 SI3!. 921 (1970) , 6, 18 Us.c. S 1964 (1982). 7. In IV Ihe Dow Co. "Sal<lbond·' t'rOOI.'C11l1~bl1l ly Li!lg.ltim., 666 r Supp. 14&6, 1471 10. COlo. 19871
u. lC.,nll quoting hIs own prior ren,a.~~ on the sub-,«1 01 RICOI Ihe.elnafw .S.>,~b<)n<j Li!i8"tion;. 8. 18 U.S.c. § 1')64((). 9. St.oe gene,~!!y Civil RICO Symposium, 21 Cot. Wl. R...... 243 (wlnt!:< 1965) (COMplete discussion r)th<l mechMk' 0( civil RICO In!lllVCf<l1 conle:>.b). 10. ~~,ma, S. PR L \I Iml'ell' (0"'1I-''''Il1II(., 413 U,s, 479 0985) and 11./. In<;. v. NO'I/Twe.w"r 8.::/1 Tdepl!f)n<l Co., _ _ U.' _ _ 11989) lbo.h CdSl!\ consrrul nM Ihv dcllntllon 0( ·1~'IIII.n 0( 'iI(kt1~~'ln~ 1I(!1~"y" ~lUnd ,n 18 U.5.C. S 1961/511. .5«- also Suey arid Marshall, "II Ovt>rvJcw 01 RICa _ _./IIJb;on>J
~_ _ n99O)
Punled by Ihe Inl<ic~ct(l$ 01 ~conWu(l lon dtspu te D' clalml WHI', muhl·d,sclpltned Sia// 01consuuction expelts un hel ll you Ilull allih e pie<:e' l<.>gelh(l' In to a dei' in d mlljnlnglul plcrure-and help a lury see thit ptcru,~, 100, II ne-c:essa<y. the film's cadreot archltllCts, ens'ntO(!,s, CO>! 'chmlulll'j, (Qmpurer C~P<"I' and field conS1fuctlon velt,ans".;U w.::11 as a h~t 01 Ol hl:/ lipt.oCilll ISIS ... hllt! 5erllt!d n"nll I han l,600diff"<~nt 1<"'801 offiCIIS na"<:>nwldc. Th\!)' h~ve holped to 'esolve Ihousands 01 conSiru(llonoSel on more lhan U.o bttllon wurth 01 (On~Iru e t lon. Cill 0' w.lt~ 10' a comphmenlary copy of WHI's lull services b.ochure today. .p-c:clall\t~,
Th£! RICO cases thilt have resulted In sancti ons "gainst 1)laintiffs have almost Ullivcl"sally ocoen the result of conduct concerning an egregious error In dC;lling with the law of the underlying predica te acts, nOI errors In dealing with RI CO itself, unless the errors wcre of such magnitude as to m<akc il obvious th<at RI CO was only bdng used to hike lip I>Oter\ ti:.1 Sell lcmlJnt figures, The upshot Is th at until RICO is more succinctly deOned by the Suprellle COurt
The AI'lbama l. awyer
Idl;C:lnsl",' 01
Ih(l PRfI dcmllnl ,I) "",II ~s Ihe Olhc. clements aI " RICO claim). 11. The definItions of "I)':""n" under 18 U.S.C. § 1961111 ond "tonl~<prl..r under § 196\(41 have ~",cn Po'<.lcula, Irouble, Set' IJlKY and M~rsh,lt , ,up'~ l\O!e 10. 12 $., •. ,booo 1I1lgalion, ft6fi F.Su$lp al 1470. B. Sl~ Nonne.JSI W>men'$ Center. Inc. v. McMonaJllc, 868 F.2d 1342 13d Ci <.) ("II dtln;oo, _ _ U.S - 110 S.C!. 26t 11969) (:xl Ct', hotdln8 no prof/I moHO'(! rmcon,"y, white Whi te, I . dlssenllng to the deni.,t 01 (l'I"!iomtl edited 10.
~'. '~"-<IIr. .
mcoot
297
.. 'eiOlullO!'l 0I1I~ ~II In I.... /OOtor~1 cI..:uln on 11W1 QU("loIIOII, _ _u.S-.-- ~ 110 .oj 2611 I" S. 4la. lObI Cons. , 1'1 St-.. (1989); S,Rcp. No. 26'), tOl)1 Coni, 2d ~ 119901 15. bBl rSuiop. 6J9 1[ .D.Ky 19601 16, 15 U,s.c. §7lIdd.1 1l9112), 17, "~"I>On , look l'lho, I.JJmg RICQ Fro 19119 A IJ.A.), il P.111t' 56, 111, 1(/ 19 Pub. 1 No 91·,152, 64 SMI 922 09701, 2Q, Id, SWlcml!!l1 d I il>l)"'II' al>lil'u'lx>\e, 84 St,,1
s.ct
921. 211(1 , f9041~I, 8~ 51;'1, 94',
12
II~J
r2d 666 13d C,r,
__ U.s._
~
19881,
~.N:~I<od,
S.CI 1306 L--J.
11. 815 fld 11110.(; Ci. 19811. C("I rknif'd, ~84 941 11987J, "'--it) drnlt<!48" U.s' MIlO (1988) 24 [mp~ Rt~11i'ftlml IncOllM' Scoc:uuly Atl 0( 191", 29 u.s.c. II IOOI , I~61 !l962) 2S. X"I' ~~II~, \\to>I..",.nd Soulm·m Me 1m, Co. ~, Smith, 8.' f2d 401 (&111 CIf 19611); I'\mullo ,. SIlII/, Inc, ~ ONn 1'M1t< Rt:ynoId., IfIr., 8041 F2d ~15 181h CI" 1966); In Ie Ch.iINugay C",p., 11)8 r2d 59 (lcJ Clf. 1988~ Ono ~ It.I'hlbk.ol'\rIIlu.l~ tt/(o 1m Co" 814 f 2d !IV, r~'<i . Sec. l R'~~ Po 'n.H) (11h Clf 1"lIfo): ~Omlllef1 Orus ~10l!.·; Co. fmpl(1)'j'v Ptt;ill SIr.trII1H 711m II COf'/II,m lnlc'p'i_ Irte., 19} F,ld 1 ~ 56151" Clf, 1986); O",oo:n"l(on. Whll('''~m, 159 f,ld 151 ~ (111" CI,. 19651. 26. 18 u.S.C , U 1)41 ~nd 1)4) (1982), fffi)('t1.~ly, 2', 5.lpoUIQ, UJ F,2d ~I (7).676. 211. C"""ford, 1115 r,M dl 122, n.ll. SI'e JIIC, 1\'n lion fund·M.d-/f'Ilt'\' T'U(~lnll )nc/ullfY ~ Omnl lundin' CtooA 687 F.5upp. 962 !O.N I 1918) (plillnllff ~ for flaudulenl If....;Ie' 01 elliSA-
u.s.
~CM.'fed
pt'noion 'unci'l.
29 SIwp.t,d, Iltlin an~ DullOn. RICOand lrtl~ /'tIl'nl t..w, 1 fht' ~oo. LIw}'l" 261 (>prinl 19111/. 10. 678 rSllpp. 561 ( o.~'Id 1968) )1 Id 12. Ac(~,lble O!'I ....'e>;llaw(cl, 11966 Wl )5504 (N.D III 1988). JJ. KIJ/~ ~, CommlH"'..'dlll, RNlly T,u", 657 f~uPl~ 94810. Del 1<)61f Itnll"lO,ity ;h~, .. h<>llIc" htollHhl ~ MICO ~1~1", , hJ'lIlnll a~ pft'(jIUII! .ell mill ~nd who"! halK! ""' clWtt'll.'(liOtl w.lh 1110: (II"CI' "on oi ~Inl,)' oplXlflllnlll~ the IIwrp.lIlorl 04 I,u,1 dIYldI!nd. ~nd .UI'rIlI1lI<d \«U,"II(" f'~IK!) )4 JU)()( ",led 1\1ru/toum PIUducIS. IftC, ~ 1""'0 J R.V'PO tnt'fIY COIl' , 692 FSupp. Kl70 IE,D. Mo. 19881 Ipl~lnt.lh .lIl'11f'1ilh~1 ..... riroIdrtl d di!fen. dam C()fp. h;od «()tM'rled 8'" from plAlnnfl\ pllll'lIn('; ( oun held Ihl> did not wl;!.Iy Illf PItA ,e(lulremill'O JS f>IIII P.Supp. 320 i NO. III 19881. J(, 659 rSUIIP. 49) ID.NV 19871. 37. 613 f.Sujlj). 67" (iD.Ny 1987), )8. 6&9 f5ul)l~ 1511 ID.N.... , 1987J,
19 18 U,SC. 5 19fo1(IJl81 (19112) mJ~~ m.)11 f,iItId 118 U,S,C . 11)41) ~ IIiCO pr.'<iIUIII lOti . ~Q 111 U.Sc. i 1961(11(8) (1982) m.)k~ wl~ (1.IUd 118 U.s.c. S I)~ll. RICO prl.'dtCdlC: .tel ~I 18 u.5.C. § 1961(1I(Dl lwlng' >«u"II~ h~II!" Into lhe IIICO !old. 4l 664 (StIPP 54 IE,D.Ny. 1981). H In", Tho Dow Co. -s."b)nd" 1'fOOuc.I' U;obtlny UllgatlO!'l, 666 f.Supp. 1~66ID.colo. 1987) (fmld In ( OOn«I.Q/l with lho nQ.ktllnK ti IWO !oI:Po1'~t .. Ix'OdUi:b >WI held 10 1O,1;!.IV II", PM II.'IIUltt:mt'nII. 4 ~ l"t'(l II Clv, fl. 11 45, 26 U.s.c. § 1921 (981) ~6. \(1111), Rule It A C.,tk:al"'"JIr-i .. 118 f.IUl 1119, 200 119iJ1I1v"ifO's sldllllio Indlulc IMI pl.lnllff. ~'r hil wilh Rulli 11 ~nclion, ~Imo\t fIVllIi"," ~\ 011<'11 al del'end.:lnl'l. 47 ~rnll' Jd.lho fU1l('l.1.s.-.~1Cl' A)WC, 86~ F2d 14~, N7 191h Ci~ 1988), c,' ing. CunnrnjJh.lm \ COolnlr 01 1m I'\flSt'~ 859 F2d 705. 114 191h Clf 19881, ~ .I!O 1\011' 11, 101,. 018. ftod R CI~ ~ 11. Noll." 1h.l\"IOOd f.wth· ..... 1Jtot-n lied 10 1M "~~>OIlible IntrJlI)'~ l!'lil "A I!OOd fa.lh btU,", I" tilt' me", d ~ Il'II'l.'IIVlnenliS.n obiI'(· Ill'll tnndnlon which a conpI!ll'nl ~lIlHnt"Y ~1I~fn' Q/lIV Mli'f ' ~aSOflable InQ~IIY'" I<lng. 862 f.2d ~I 7~4, ( IIilll\. Z~ld ..... , II C"y rJI!.of I'\nS<'/t>~ 1&0 f.2d 611. 610 (9th CI. 1966). 49. 6P (Supp. 1409 (S.D.CIII 19U11 so. Id ~I 1417, 51 Id ul 1 ~ 11-1414 52 Id ~t 1~17·1~11I. .n 8u/ >ee Gotdon v Htlrl,l"n 115 F2d 531 I1l1h a'. 1')61) (1l'Ii1l"ll oIpmYiDuIly dl'lttlfo)t'(llllCO .... '1 kt'Id Irlwtou.J . 54 84S r 2d 1SO (7th CII 19l1li/ 55 Id 011 15) Sf>. _ U.s._ 1(1;1 5.c1. 2159 (19111157. Se.!, I);w,~ II I'\ ,e;, ldwo'f/) ~nd Sonl. Inc., SlJ nd 105 ISIh Ci, 1911n s&. 15 U.S.C. I 15 11982) 1C11I','t0ll Att'\ ItalUle 0( 1.",It.lionll,
59. "'se"l-), Itoldinll CorJl._U,5, ~t ln1 'tC1. .1 l1&2·27fo7. 60. 121 ~RD, )68 IN D. III 1986). 61 Id al 119 6l . Id it 3119, (01. 676 F.Supp. 56' CD. ...·011 1911/11 64 1(/ al587. 6S,1d al 581-S88. ~ .1-.0. CNP,",/n & Cok ~ 11('/ C""I•• fI('f Imr:tn.rlron.>l, 8,V , 116 FR 0 , 5SG 1$.0 Teo<. 19811 (lal1utt 10 dMlIsI.t1tf ~flUmem bec~_ ',idlCukM" Woll JIIQUOd kit Rule 11 wno::llOfIl . ..snJ. 8&5 f2d 676 I51h C« 19f19Jr.oltumcy\ "'-"flI'I',IIJjIl. Iy 10 CondUCI i f~ prefili"I 'rtYrSlllIi<lion I) p;lfllcula,ly IftljlOII.'" .n RICO dljm.. ,. 8(.5 f 2d ,,16651; Vollta Rule II 1'\ C"'l(;oIl""",y).~ 118 ~II D, 189 (V~I,o d,.cu.se. how ,dJlm nv,o "b«on"," ffll'Olou)l: bUI K't', Smith Inll."n.lI.on~llnc V. TeJo.
COHDAT CORPORATI ON ANNOUNCES ITS SOFTWARE INSTAlI,ATION AND SUPPORT DIViSION WE WILL INStALL WOADPERFECT. LOTUS ' ·2·3, £IC ON A PER HOUR FEE BASIS, WE WILl. ALSO INSTALL COMPUTER CABLING FOR SMALL OR LARGE NETWORKS. SUCH AS IBM TOKENRING FOR MORE INFORMAriON CALL (205) 8231905 FOR A BUSINESS OR HOME INSTALLED OUOTE
'98
.t. Comnlt'fte a~nk, 8014 f2d lHJ (51h 01 1968) 1 ~1,lI"IC1' on unclloif ~ 10 allege Ik.It ~ 1).>1' 1.(ul~. proml.1oOfY nOlI' w.t~. '\Kuuty" ~uch th.l ~\ IICllun, ....... YlOI~n\t' 01 \(\C\II'!~ ~
Ihus ~'u~ iClS foo IIICO 'M'ft' nul gr9U,.h found nor 10 1M! i SoKUfUy! 60. 865 Fld '82 (fom CI, 19891 ~rod
/(x Rulli 11 o,;on{IIon twn Ikot.rM~ nore w.H
67, 1.1,
~I
6& Id
~I
785.
185-186 1>9. 11)7 r 2d S(.I (2d Clf 191111) 7Q Id, ~I 564. 71 696 f,Supp, 262 ,e l)' Mlch 191161. n. Iri. al 2611. m .tllO. Slnllh" Curly. 122 F.II .O. 2' IN.D. III 191111) (fJllu~ of 1.1(1/ ~1I~'lI\.'<i to mt'I1I definition of 1'l1.li de~ on ~ 7th CII. 0Pi ... 10M i ..1II!d 25 .Inti 10 d~ l!d,l"" Inquiry could be ~ft''''oOI'I"bJe" ,md ,1111 no4 flrd I~ usn! 13 666 FSupp. 222 (0 D.C 19&61 74 rnl. R CIY I' "bl "In ill oMfltli!lllS 0( If~ud Of m.>t.lI.e, the ( if(utmt.!rx;... t:<IMlnutina f",ud 01 nll~lo>kc ""'" be staled w.lh p.1"lCuldnly" 75. 8.lrlow, 666 f.Supp. 011 229 '6. ilS2 F.2d 206 li'lh Clf, 191181, 17 Ifj il20ll 18.ld JI 211 . kto ~IKll'\lllmt'J Rruown, COIP. v. AMI \t7t'alfM,. "1(:., nl F..s.",,~ 519IS,o,NV, 19691 1II/1)I;II(Is lor dlsmllwl, wllhou' mo~, Dre nol IVO\IlId.1or o;,m;lInn,) and Io.lminl'llnc, II Hum· don /I Co., 107 PII.O. 775 (N ,D. Ind. 1985)
(plr ... hnll' mV_I be Iooklod il U. wholl' In lIule II ,11\.11'1"'" IU'I btc~U'<l i III[ildlns ",Ishl be d.""lso;abJe doe. IlOl m.,~e II "'YI ""'~bi<'! 79. 66~ f2d 66~ 12d CII 19119) eo. Id. ~167Q 81 719 F.Supp. 42 (O.N ti 191191 82 Id, al 51 8J. 6.(4 f.Supp. 6~5 (LD. C~I 1986) 84 See note II. ,uPl~ 65 IlIlo.ldes, 644 r,supp. at 67). SH ~I>o C~"lon ~ lolly. 125 fll 0, ~2J ([ 0. Vol. !9t9111I1alnllff f.illied to pleiJd I!flle!p'I~ ilI\c{lu,lIely u"~Ct 41h Cn. (ll'ln. lon~ '-"" ple,"I(hnll w~~ IlOIlI'lheless Hood f.lith ~I· I;"lp! 10 c.lclKI I"w (If OIIu:t C"tllll., Ihcl('!o,e \oIflCllO!'Is dId nol 1<1'1 , 66. Id "I 61')·674 117. 16 U.S.c. i 1964(d M,'ll"lh~1 ~Ialnr /)t'fSOfl (". lu'l.'d In h.s buSiness or JI'tOIlf!flr by fN>On ri ~ ~,op/~h(ln riK'l'tlOfl 1%1 oIIIl'J C",,~ lemph,l;l! ~)nUjlwe
88.
m FRO, 154 IC.D
III 1911')
119 125 fRO 491 (( 0. .... ~ 1919) 90. Sf'l', ".11.. f'IIdp . v. 1\'1(:"11~ l",1t liNt Oll, 8&6 f 2d 12&211Oth Cit 1'.J6911p1ilnll~ dlltmpl to ckM.tatfi~e • ...".in d ~lltiIt'dly tlt'finilory .nlCle as • p.Uiern or f«~!lIt!l.x:tIV'ly "btN't\(...qPdI OIl be-
.na 1,,1QIov!." bul bec~~ plintllfl'hId ~.oIiW .orrrc '",,'plllJl I" .....,," no ""nellnn_ ""-'It Imllll!«l Id ~! UNI, •
HENDERSON PRIVATE INVESTIGATIONS MATRIMONIAL/DOM[STIC SU RVE ILI..ANCE
CONFIDENTIAL , DI SC RE!!T LlCENSE O· eO N DED ~ Do> 6~ 1 1~ " U J
. .fl.I .... ,.... ,
... tl '"
M'~O"
SepJember 1990
Legislative Wrap-up by Robert L. M cCurley, Jr.
The ..... Iabama law Institute held Its annual meeting ill the Alabama Stale Bar annual mcctlng in Mobile, Arabama. The {ollowing officers and cxecutlYC commillfle
members were elected: President - Oakley Melton, Jr., Montgomery Vice-president - Jim Campbell, Anniston Secretary - Bob McCurley, Tusc.. 100511 Executive Commluce: George Mayrlard, Birmingham
Rick Manley, Demopolis Yetta Samford. Opelika Ryan deGraffcnrled, Tusc.1l00sa
E.c. Hornsby, Tallassee Fri,lnk ElUs, Columbian'" II was reponed Ihal since Ihe last ilnnual meeting of the Law Institute, the legislature passc..'<.'Ithc follO'Ning ,lOS: Condominium Law Revision, Act No. 90-551 Adoption Law Revision, Act NO. 90-554 AI"bilma $e(;uri{ics Act, Act No. 90·527 'I was also noted Ihat the Alabama Rules of Crlmln.11 Procedure were adopted by the Alabama Supreme COUrl to be cffC(lly(I Jar'luary I, 1991. The Alabama Supreme Court, after 15 years of study by the law Ins'itute, has adopted the Alabama Rules of CrimlMI Procedure to be effCCIIW January I, 1991. A (opy of these rule. can be found In 260 So,2d U, dated JUr'le 28, 1990. The Alab.lma Bar Institute for Contlnuln8legal Education and the Cumberland Institute for Contlnuln8 lelpl Educatl~n are offering Joint seminar'!> thiSfall Or'! th~ nt...... rules. legislators recogllized at the annual Bench and Bar luncheon for their sponsorship of Institute bills ~ne Senlltors Ry.lO deGraffcnried. Charles I.Jngford, Frank Ell is, Su.>ve Windom, Jilmes Preultt, and Jim SmUh, and Reprcsentatl~S Jim Campbell, 8eth Marletta.lyons, Michael Bo~, G.'. Higginbotham, Bill Fuller and alit Slaughter. The Alabama 1..1W Institute pre!ICntly has the follOY/ing revi sions under study in the (01lOY/ln8 arC!u: probate procedUft', chaired by E.T. Brown of Birmingham, Professor Tom Jones as reponer; B(Isiness Corporation Act, chaired by Georgc Maynard of Birmingham, Professor Howard W,l lth,,11 alld Profc~sor Richard Thigl>en as c(}oft'I)()f!ers;
The Alabama lolwyer
Rules of Evidence. chaired by Pat GrilYCS of Huntsville, Professor Charles Gamble as reponer; Anlc1e 2A of the UCC, chaired by Bob Fleenor of Birmingham, Professor Peter Alces as rCI)Crrer. Publlcat ion~ recently coml)leTcd by the Institute are: Model City Ordlnanccs-In C(lnjunCTion wi th the League of Munici palities and the Alabama School of 1..1W, the Institute has d~loped a set of model cUy ordinances and a progr,lm whcrel1t small municipalities may request from thc leilglle of Municipalities a 10l'N student to review and (Omp.lre their ci ty's code ror deficiencies. P,lIIern Criminal Jury Insuuclions, 1990-ludge Joe Colquin of lUscaloosa as chief edilor along with a commlnee of circuit Judges mvised The Alabama Criminal Jury InstruCllons. These jury instructions were diSfributcd to each trial Judgc by the Administrative Office of Couns i)nd arc ilV'llillble to practicin8 lawyers through the Ala· bama In ~titu t e of Continuing leg.ll EduC'l!lon. A/,1b,lmll Elcelion H,lndbook, 5th cd. 1990 Alnb:Jlnl1 Government Manual, 8th cd. (available NO\ICll\bcr 1990) Alabam.a TelX Asscs5OfS/TJx COlieclOfS H,lndbool:, 4th ed. (available September 1990) Af,1f)')mJ Leg;slatlon-Cases and Statutes, 2nd ed. 1989 The I£gislarive Process, A Teacher's Gulck to rhe AfJbama 1.e81slalUre, 2nd ed. 1989
•
Robel' L McCur.l9y. J(. IS lhe dtteclOl oJ lhe Alabama Law IfI$tlfl,l!e " ,lie UnMJlSty 01
Alabama He ~ his unc/{JfflrtJdu8ffJ .1Id I8w degrees from ,he University
'99
Standards for Delay Reduction to Become Effective October 1, 1990 Oil June 12, 1990, the Alabama Supreme COurl i'ldOP1~ standard s relilting 10 delay reduction. The delay rrouction Sland,m:ls ildopt(.'(! by Ihc supreme courl were recommended by cOrllmi nccs of circuil CQurt judges ;md district courl judges appointed by (hlei Justice Sonny Hornsby In July 1989. The circuil courl judges ~o m mittee Wil~ c" .. ired by Judge Joseph D. Phelps Qf MOn1gomcry: the di strict COUft Judges committee wa s (hillred by Judge Gcr<l ld S. TOP.1tl of Ulrmingham.
These standards, generally referred to as lime s\:mdards, arc goals for case prQo ccsslng and are designed 10 prOVide
clear, undcBlandablc benchmarks tu mCilsure efrectl~ case Inanagcmenl in the courts. They are not InlClldcd In any Wirf 10 (lfft'Cl, enlMge or limillhe subst.lnlive tights of any p;Jr!y. While the time stand<lrds provide uniform goals for thc entire state, the committees and the supreme court recognize that because of the dlSPMlty from circui t to circuit in the ;!Veragc amount of time recluircd to di ~ pose of p.lnlcular types of C.1S(!S, the starl dOHds In some instances may provide greiltcr lengths (J f time than the average amount 01 time geoerilil y rl'<luired to di ~ pose of a panicular type of case in a particular cirCuit. Tne time Standards are not Intended to be construed to suggest thOl t more time should be t.lken In reference to such cases. In dcvcloplng the recommended time Sl1lndards, the circuit judges and district Judges commi ttees held publiC hearings In Birmingham In N~mber 1989. Court officials. a" omey organlz.1!lons and other in terested parties and agenclcs 'NCre in· vlwd to address the committees. In addition 10 rl.lceiving inl)ut from the publiC hearings, the c0l11mittee$ were assisted bot' national CXP<'rts In the awOl of COl$(! management. The American Bar Association adopted standards relil ting 10 court reductiQIT in August 1984. Alabama Is the 24th state
300
to adopt time standards; scYCral other stalL'S presently arc considering adOPtion of time standard s. The Siale of A labnma-
Judicial Department in t he Supreme Court of A labama lune 12, 1990
Orde r WHEREAS, the Chlcf Justice of this Coun appointed committees of circuit court judg(..'S and district court judges to study and r~om m~nd time standards or g03ls for the proccs§ing of cases in Ala bama's trial courts; and WHEREAS, th~ committees com· plcwd their study amI nled on April 26, 1990, with this Court a "Report of the Ci r· cuit )udlWS Time Standards COrllmlUec and District Judges Time Standards Com· millee;' NOW, THEREFORE, IT 15 O RDERED th" t the follOYo'ing st<lndards rela ting 10 delay rc<luction ~ adopt(...od as guidelines for timely case m'lI1ag<!nl(..'11t In the courts of this St,lIe: 5'.lI1dards Relating to Dciay Rl'tluction: I. ClvilCircuit (Ivil- 9O'" of all circuit civil C<l5eS should be sellied. tried, or otherwi se conclu ded within 18 months of the date of nling; 95% with· in 24 months of fillnij; and the remninder within 30 months of filing, c)(cept for Individual cases In which the court determines, bot written ordCt, that C)(ceptional circumstances cxist and for which a cont inuing review should occur. DiSlrict Clvll- 90% of illl district civil cases should be settled, tried, or Otherwise concluded within 9 m(mthS of the date of filing; 96% w ithin 12 months; and 100," wi thin 15 mQ!lths, Sm,,11 Claims-90"lf. of all small claims actions should be concluded within 4 months of the date of filing;
9B% within 6 months; and 100'" within 9 months. II . Domest ic Relatlolli-
90% of all domestic relations miltters should be selllcd, tried, or otherwise concluded within 6 months of the date of filing; 96'" wi thin 12 months; and 100'Yo within 18 months, e)«ept for individual cases in which the court determines, by written order, th" t eltceplional clrcunlstances exist and for which a continuing review should occur, 11 1. Crimill3lCriminal Felony-90 ~ 01 all circuit felony cases should be adjudicated Or otherwise concluded w thin 9 month~ from the dare of Iml ,'St and l00"la with· in 12 months, e~cepl for Individual ca!;(lS in which Ihe court determines, bot' written oro(l r, Ihal exceptional cir· cumS!.lnces exist and 10, which a C(llltinuing review should occur. Circuit Misdemeanors-90" of all misdemeanor cases in the circuli court should ~ adjudicllted or other· wi sc concluded wi thin 6 months (rom the date the circuit court obtains jurisdiction and 100"10 within 9 months, except for individual Cillses in which the coon determines, by written order, that exceptional circum stililCes C)(lsl and fOr which a continuing review should occur. District M isdem<!ilnors, Tr<lffi c, and Conservatlon- 90% of all misdemeanors, traffle, conservation, other Infractions, and non.felony cases should be adjudicalcd or otherwi $e concluded within J months from the date of the arrest or (itation; 98 ... within 4 months; and 100" wi thin 6 months. Persons In Pretri al CustodyPerson5 detained shou ld have a deter· mlnatlon 0( custodial mtus Or bail set within 72 hours of ju re !. Persons incarcerated before lIi<ll 5hould be af· forded priority for trial. Scpwm/)cr 1990
Preliminary Ile."ings-Where a preliminary hearing Is demanded or otherwise sct, 90% should be held within 2 mont ... s from the dllte of arrest; 96" within 4 monlhs; and 100'" within 6 months.
IV. j uycnilr:>DetenUon and Shelter CMe HeMings- Detention and shelter care hearings should be held nOt more than 72 hours, Including weekend s and holidays, following admission to any detention or shelter care facility. Dellilquency: AdJudic.ltoryrrran sfcr HcaringWhere II child IS detained, 50% of all adjudi catorY/Transfer hearings should be held wi thin I month from Ihe dille of i'ldmiS5ion to dC1entlon; 75% within 2 monlhs; 90% within 3 Illomhs; and 100% within 4 momhs. Where a ch ild Is not being detained, 50"4 of all adJudlca tory/lransfer hearings should be held wi thin 2 months (rom the date of the filing of thc petition: 75% within 4 months; 90"4 within 6 months; and 100% within 9 months. Oependcncy/cHINS: Adjudicatory HearingWhere a child has been remOYCd (rom the home, 50"1. o( all adjudicatory he.ulngs should be held within I month from the d'lt!! of (emoY,ll from the home; 75"1. w it hin 2 months; 90% within 3 n'onths: and 100"'" within 4 months. Wher!! tI child has not been reMoved (rom the hom!!, 50% of all adjudicatory heilflng5 should be held wi thin 2 moml,. from Ihe dille of the (I ling of the I>cti!ion; 75% within 4 months; 90% wl!hln 6 fII0nthi; lind 100% within 9 months, [)(!II nquencylDcl>cndcncylCH IN S: Dispositional f-I(!aring75"" of all dispositional hearings should be held within 1 month of the date of the adjudicatory hNlring; 90% within 2 months; and 100% within J months. [)(!pendency: Review/Determlna路 tion of Reason..,le EUorts-
The
~ltlb.1ma
Lawyer
IOO"i, reviewed
IJt the court, ;xlmin-
istrativcly or formally, andlor determination of reasonable effort!; m"de within 6 month$ dfter adjudication and at least evcry 12 months Of more (reqvenlly as required IJt' law untn the case is closed. Paternity-100;' of all l>aternity cases should be adjudicated or OTherwi se disposed of within either 12 months of {al successful service or (bl the child's reJching 6 months of agc, whichever occurs last. Child Support- 90" of ,111 child support aclions mould be ildjudi<;ilKod o r otherwise concluded within ] months of the date of service; 98% wi thin 6 mon t h~; ilnd 100% within 12 months. Commen t: Time standard s Me goals for case proce sSi nH and are designed to provide dear, undorSlilndablt! benchmarks to measure ef((!ctive case management In the COutts. They are not Intended In allY w~ to affect, enlarge, or limit the substanti...e rights of any party litlg.ln!. Judges must continue to be scosili...e nOT only '0 the <luanTity and timelines~ ()( cases disposed of bu t also TO the mandates of justice. No deft!ndant should be released, nor ,hould any case be dismissed or prejudiced, for the sole reason th.lt trial settings or other disl)()si. Tional action s exceed The time standards herein presEn ted. Nothing herein con tained shall be construL-d to affect thc substantive rights of any party. In devclopingthesc standard s, a guiding principle has been t h~1 there sho(lld be uniform standards for the en tire ~tate. In some in. starlces, thure arc rl!iisons bE,>yOnd the court's control wh ich con tribute to The wide di sparity from circ uiT to circuit If' the average amount of time required to dispose of partic.:ul<lr Types of cases. In re<:ognition of thi s facT, some of the recommendt!d 5t"ndards. therefore, may proyide greater lengths of Time than The average amount of time generally required to disposc of a particular Type of C.lSC In a partie.
ular c.: lrcult. H~r. it is certainly rIot Intended that these standards be construed to SU88~ t that more lime should be t"ken In reference to such cases. Circuit Court Ciyil: WiThin the meaning of these Slilndards, thl! compu tation of Time shall begin upon the court's obtaining jurisdiction by the filing of an original 1>leacling or upon receipt of a case by tran sfer, al>l)C!al, or remand. A case shall be deemed disposed of when the COurt mak~ a final judgment as to the la搂1 remaining party and as to all of the claims. The conlmluees hiM! IdenTified certain cases whi ch might consti路 IUIC e)(ccp tional cases, including, bu t not limltL-d, to: Probatt! c.:ases where there Is protrJcted, on-going administra tion; Cases In which j)rOHtess has been slowed or halted by ancillary declaratory judgrllent actions or rccei...ershlps; Mult protective service cases; Cast'S that h;we late Interventions, substitutions. or additional parties; ColSCS wherein a P.lrty has died and a revival or subSTitUTion of parties Is In order; Cases wherein the benefiTS of the Soldiers' and Sailors' Clyil Relief AcT have been Invoked; Cases wherein mistrials or hung lurk'S arc declared; Complel( professioJlJI liability, j)fOOUCIS liability, or class action cases; and Cases In which the suggestion of bankruptcy hM been made. CircuiT Court Criminal: lime g(l.l1S In criminal cases must be trlggered by the daw of arrest, Public perceplion is focused on the tot~ t lapse: of time between arrest and trial. Therefore, to be meaningful, standards or go.,rs must addrtlSs the entire process. With respect to the time period betwoon ilrrest ilnd preliminary hearinH, attention Is invited to Rule 5.1 0( The Alabama Rules of Criminal Procedure, 3doj)ted M~ JI, 1990, and cffecti~ January 1, 1991, which would allow a defendant ]0 days (rom arrest to demand a preliminary hearing and require that
301
the hearing be held wi thi n 21 d.-lYS from the demand. See Section
15-11-1, Cock! of Alaruma 1975. Rule 5.4(b) of th e Alab,lma Rules of Ctlntl nal Procedure provides thai If probable cau~ Is esl ~ bl lshed o r if 11 heilrlnR Is waived or not demanded, "Ihe dislrld allorney shall I>resenr the com plainl to Ihe grand jury by Ihe t:nd oi lls presenl se~ sion, If Ihe grand jury Is In session or Is subsequently rt!Callcd Into session, bu t in no event hIler than the beginning of its next term." Section 12-1&190, Code of AllIb,lm,l 1975, requires emp.lneling ill least two gr.md juril.>S each year and pf(Pllides Ih,l1 the juries, " when they have conrl)letcd Iheir labors;' may be plaCed In recess subject to recall. If it gr.-md lury Is kept ei ther In session o r on ca ll at all l imes, there should be no problem In prO'>'lding a limciy gra nd jury to which the diSlricl anorney could presen t complaints. " hhough not wi lhin the SCOI>e of this repOiI. the com mittees feel thaI a study sh ould be conducted with a view loward elimina ting the necessity of grime! ju ry action in most crim inal cases. The term ·'.djudicalcd or o therwise concl uck>d" shall be sali sn ed by adjudlcalil:m of gud l. Sen tenc· Ing should be accompllshc.>d expeditiously, pJll lcultlrly when the defendant is in confinement. CJses in w hich rhe defendant is granted treil tMent as a youthful of· fender should be adjudicated or Olhl!rwise conc luded wllhin the Iinte stJ ndaKls ~ t.lbllshed fOr fel ony CJSCs. It Is recognized that eXCCI)tional ci rcu m sta nce. may exist In a limited number of CJSCS which prohibit their conclusion within th e 12·month go~ 1. Examples of cases in which excepTional clrcumslanc(!S may exist include, bUT are not limited to, the followin,,: Cases In which the defendtlnt has been committed to a psychl. arrlc fildUty for evJlua tions Or trea tment; Cases in which the defeodJnt is Incarcer.tt'!d in anOTher juri ~ d iction or has escaped afler ar· res tj a!ld
302
CJses in wnlch I>retrloll apl>eals haYe been filed or which have been continued by the "rand jury after Inhial presentalion. These SI<mdJrds shall in no way affect, enlarge, or limit thl! sub!>tantlve or constltutiO'l.ll rights of c rimInal de(l!ndanrs. Specifically, they are not Intended to, Jnd shall not be cons trued ~s establishing stand ard s for 5PI.'(.'dy trlill s as co ntemplau.'Cl by the ConStiTuTioll o/ the Unitc.-d Stat(!S Or the Constltutio!l of the Stolle of AlabJma. R.lIhl!r, these standard s are a c.lSe mJnagemenl rool whi ch addresses cases In the .1ggK'g.lte and nol in the l>articular. It is rl.'Cogniu>d Ihat each case Sta nds on lt ~ own ments. Circui t Court M lsdcmeilnor: The (Ircuit court obtJins misdemeJllor juri 5(licTion In various wiJY5. For reasons of consiSlency, time ~tan· dJrds for ci rcuit misdemeanors should be lriggered by the dale jurisdiction is obtained. The same consi dera tions (or exceptlOltill circ umst.lnces JS sel forth for circuit cou rt fe lony CJse should apply to misdemeanor CJ~. District Court Felony: The committees recommend that a dlSlrld court lelony case be considered disposed of when the Judge bind s the C<1Se QVf,!r 10 the grand jury or when the 3O-day ti me limit for (iIIng a r(!(luesl for jlfcliminJry hearing has expired wi thout a r(!(Ju(!s1 having been filed or where the defendan t hJS been Indicted. Pret rial Custody: P(!fsons detJined should hJVC a determination of c U 5 todl~1 Stiltu5 or bail set with· In 72 hours of ilfrest. The commi t· tees recommend that In the event a dlslrlct judge is oot available, Ihe l)rC5lding circul i judge should ap. IlOlnt il circuit judge to handll! the pretrial heMlng. One Iml>edlmerlt to prOI>er implementation of the 72-hour heilfing 1>lOv1510n is the facl th,ll a person CM be detJined In n clly lall without notice being senl to the diwlcl courl. The comminee recommend s thJt (,Jch juris.diction adopt I>rocedures to prevem this situillion from occurring.
DomestiC RelJllons The com· minees recommend tlat. for the PUrllOSC of time standard ~, no dis.tinction be made bet.Yeen can· tcsU!d I'lr uncontested J(;tion$, because thl! onl y uncon lested cases which would not be di sposed of Within the proposed time limits would be those whIch presented pracedur.ll or discrelionJry I)roblems of an individualized nature which would not be subject to generJlizc.'il lime st.lndard s. The com mittees also rl.'Commend thJI no distinction be made bet'M:'Cll Ini tial fillng~ or nllngs for modlficJ' tion of prior ac\lOns. becJu~ rhe imtcS and burdens in modlficJtion PfOCCl.>dings ilfe often al difficult as or more difflcuh th~n those presented In inil lal proccl!dlnK~. The comml ttccs do 1)01 r!!Com mend time standard s for temporary/pendente lire heanngs bee,lUse rhe grJntln!! 01 such hearings is discretionary and i ~ to a great e>t tent, del>cndent on court staffin g in various juri sdictions. juvenile: The Samt! bllsic lime sta nda rd s for dispositions should appl y to all juvenile CJses, whether mJllers of delinqul!ncy, dependency, or CH INS, but dlsposllion should be given priority in cases where a child 15 being det.lined or has ix't'n rernQVI.od from Ihe family pending hClilrlng. Review/Determination of ReJ· sollable Efforts: Dependency cases Jre USUJlly before the courl for years afler adjudic,ltlon 10 ensure that these cases ;1(e conlinuilily monitored .md Ihat al)Propfiille reviL'YIS and dC!t(!rnrination of fCilsonabll! l!fforts af(! madl! with regard to reuniting fJrnllies or pr<Niding permJnenl placemenh for children. Considering Ihe e>ttremely wide I/ilrlety of CJ5eS a'ld Indivld· uallzed problems which Me InIIOlved, the cl)m millees do not feel Ihm J percent {actor time sta ndard would IX! Jpproprialc whh regard to review and dctcrminatiOn of reasonJble efforts. Public taw 9&272 sets forth specific st.l!lrurds for reviews and reJsooable elforl s determinations. These {ederal Standards sho uld be mel in ~11 case~.
September '990
Paternity: With respect to pater· nlty C.lses filed under the Uniform Parentage AcI, the commi ttees feel that st;mdards rt..'(julrcd by fedcr;ll lilW <:Irc rcaSOnable, 1>..1rtlcularly considering tbe substantial vclays In such cases required by nt..>eesslty for blood and/or genetic tt..>5ting. The general fcder.ll Slandant Is that all paternity cases bt} disposed of within one year of the luter of {<:II successful service of process or (b) thc chi ld's rea chlrlg six month s of aSe (lJenetic testing Is not ,1V,11 Iable until the child hilS reached six months of agel. Child Support Enforcement: The standards (or ~pedlted process required for Title IV-O child support cuscs by fedeml reguliltlon ;md by Rule 35, AI<lb<lma Rules of luvidal Administration, should al)llly to all child SUI)port actions, and no disUnction should be made between Title IV-O cases and other cases. It Is important to note that the curren t time standards fOr the purposes of expedited process run from the daw of scrvice and not th!.) dilt!.) of filing. The committees, therefore, recommend thattimc standards for all child 5UPJXlrt aClions also run from the date of scrvice, The Court recognizes thaI it may not
be possible IQ achieve tht'SC sIall<lJrcls in every instance; nevertheless, the Court envisions thm judges shalt nwke fNf!ry conscient ious effort 10 meet the se standard s. IT IS FURTHEROROEREO that the fol· la.ving recomme'lda tions of the commi t· lee be implemente(l by the COutts and the npprOI)ri3le agencies of the Unj(ie(l judicial System: I. Cast! Managcmcnt PI;lns
Each circuli arId district court should estab I~h an effective case managemcmt plan which will promote compilance with the rccom· mcnde(l time .tilndards nnd eliminate unnecess,u y delay in the processing of casc~, Such tI casc management plan should provide for: A. Judicia! supervision llnd early and con tinuous con trol of all cases, Including the selling of civil and criminal dockets under the supervision of the trial judge or court adminlstrOltor, where nVOlililble. The Alabama Lawyer
B. Specialized ptOCedures for the handling of CJSCS Involving complC); subs!;!ntlve or procedural issues. C. Interme(!iate time frames for critical events In the processing of cases which can be monl· tored by Ihe court to ensure compliance, D. Trial setting policics which will reasonably assure that cases S(hl'dult..>d for trial on any 81\1('n date will be (Cllchcd. E, Setting of tri als for a date cerrall), F. Strict poliCies on contlnuJnces. G, Where feasible, individual dockets should be adopted in multi.judgc c'rcuits where more than onc judge is assltlnl!d IQ a division of the COure. Comment: Judicial commi tment is cssenl ilii 10 ,\ successful case managemcnt progr.lm , Once action is filed,!! Is the responsibili. ty of the court 10 ensure that the Issue is expedit'ously brought to conclusion. Rt.'$C.lrch indicates that those courts which arc most sue· ces~ful in rt.>dudng Ullilecess,1ry delay arc those which Instigate control at an early point, e.g., time of fil ing, and maintain con tinuous sUI>crvislon through each dlSCrele processing phase. It is equally important that courts rl,.'(lulre nil trials to be SCI for a date certain. Court docketS should be st ruCtured to rellsonably ensure thnt 1111 trlills scht.'tluled for a specific dille will, in (;lCt, be tried. Continuanccs should be granted only in exceptional circumstan ces when substantial good C.luse rl!qulrcs,
,In
11 , hcciltiorlal Cases E~cept lonal cases in which the court's jurisdiction 15 stayed or precluded may be trilmferred from the ac· till(! docket to an administrative docket. For 5lati5tic~1 J)tJrpoSl.'S, a case will be considered "disposed of" when It Is trar\sferl'l!d to the admlnl· s t rml~ docket. When a case Is ready for action, the court must enter an appropriate order for final di sposition or for return to the act ve docket. Return to the acti~ dockCl will not constitute II new case flling. Cases on thl! adminiSltatlW! dockct should be rt....... It..'Wl!d at least once a year,
A.. Circuil and District Court 6Jnkruptcy CaSt$: I( the 5UsgCStOO 01 bankruptcy has been made In a circuit or district COurt caS<!, in lieu of the procedure stated In Ihe J)fcvlous paragr\lph, the cou rt Is authorized to remove the case withou t I)(I!judice from the active docket to be reinstated without CO)ts al Such time the case is no longer stayed by bJllkruptcy, 8. Estate Cases (Gua rdlnn ship, Receivershil), or Pro Ami): Currelltly, thl.! law provides for the tr,1nsfcr of probate CilSCS to circuit court but docs not provide (or their return to probate coun . For the purposes of thl!SC time standard s, such cascs shall not be consider(.>d. Comment: Section 12·11.4 1, Code of Alabama 1975, cou ld be amended to provide for the tran sfet of CJSCS back to prob.:ne court. This changc would alleM' the cOOrt to receive J case from probate cou't, rule on issues at queslion, and rhcn tran sfer the case b.lck to probilte court (or administra tion.
C. Civil SettlcdlPayinlS Docket: An ad· mlnlstrative dO(kcI m.1Y be est,lbIIshed specifically for the settled! p.lying docket. Upon receipl 01 the signt..'(i agreement between the l)dr· lit.'S, the Court would el1\1!r on order removing lhe case from the acti ve dOCket and placing it on the ad· ministrative docket, The clerk should maintain a seP.ltatC docket book (or the cases placed on the settled/pay ing administrative dockel, Upon complelon of the ilgrl,.~ment, the I).lrties 'M)Uld 1I0tify the court and these cases would be remCM..'<l from the adminlstrati.." docket. III. Withdrawing and FUinK of Circuit Criminal Cdses Uniform procedures should be established to prcwicie (or the timely wlthdrilwlng ilnd flUng 01 circuit Court criminal cases. Rlile 16{cl of the AlaI).lma Rules of Judicial Admini ~t rJtion l:tf'Oo'ides thatlhe coon, on hs own motion, may direct the disuict attorney to Wi thdraw and file crimin al cases in which an arrest warrant has ix.>en twice returned "not found."
303
IV. Alias or Capias Warrants in Criminal
C. ...
"II criminal cases In which aliils or
Cal)ia§ w.urants hilVC been Issued should Ix! COunted as disposed of Cilses for statistical I)Urposes. If th~ d~ fendanl is arrested, the case should be adiU(!icmed in the oormill manr.et but should nOI be counted as a disposl. lion. Currently, traffic cases in which an alias and/or UTTC 68 hus been Issued are counl(od as dispoSLod of ,md fu ture resolu tion of th e CMe Is tredtt¥! in the same m,mner. V. Judicial Educa tion The Alabama Judidal College, a division of the Admini strative Office of Courts, should provide orientation ilnd continuing educalion to judgl!s. cmm clerks, and other coun officials on lime stilndiHds and case managemerit procedures. Comment: If courts are 10 establish and mai ntiJin success(ul case marlagement program~, it is essen· lial tnat judges, clerks of court, and
other court o(fidals be provided comprehensi\o1! and continuing ed· ucation on the fund<lmental con· cepts of court management as well "s specific proced ures, processes, and Icchnologles which have been effccti\o1!, Such programs should in· dude education and tr"inlng ser· vices offered by stilte and nillionill or!Vlllb:allons. The SUI)port 04' thc 8ar, district aItorneys, law er1forcemenl, probalion o(ficers, Jnd other officials with interest In the ludiclal process 15 Imporlant to the effecll\o1! opera· tion of courts. The Alolbama ludi. clal CoUt:!ge i~ I<fScd to cooroinltte with representatives of such groups or organlZ,ltlons In dt.w lol)ing cduCil tlon,l1 or lnformatlorlal progrlllTI5 on case management procedllre~,
VI. Reporting and Monitoring The Nlministrat ve Office 0( Courts should develop uniform procedures for the reporting of C.l se actions and
NOTICE The Labor and Employment Law Section o( the Alabama State Bar wi ll hold its almual (all ~e tninar in GlII ( Shores October 5 and 6 at SU n1merch<1 se Condominiums, The seminar incl udes a survey ses~ion for the beginning practitioner or one who wishes to become gencrally familiar wi th the field. Other scs..;io ns will cover i:;5 ues such as Title VII , the Age Di ~crim i n<l t ion in Employmcnt Act, ERI SA, ;)nd other areas of importance for l<lw· ycr\ wi th a general practi ce in the lahor and employment area, The COSt is $125 (or memb r5 and $155 for Mil-members. Regi ster for the semina r by contacting Joseph Spransy, P.O. Box 10406, Birmingham, Alab;)ma 35202. Phone (205) 254·7252. Accommodations are avai lable at the SumIllcrchase Condominiums al P.O. Bolo: 2344, Gulf Shores, Alabama ]6542. Phone (205) 98 1-973 1 or 1-800-722-GU LF.
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the monitoring of the achievement of the time Slandards or goals In each circulI and district courl . Reports should be I)repared ltnd provided all Cou rt~ on no less than 01 semiannual basis. VII . Technical Assistance The Nlmlnlstr.ltive Office of Courts, UIX)Il request, should provld~ lC!(hni· cal assistilnce to any dlslrict or clrcuil court in dC\l'eloping case management plans. Whcfl:l iI court is identified as nOt substan tiall y achieving thc time standards goals, thc Admini strat ive Of, fice of Courts should be available 10 review Ihe court's case management plan olnd operating procedures. Rt.'Commendalions (or ImprO'.«! case rnolnolgcmcnt procedures shall be propolred ilnd submiltlod 10 the court for review and con~id c ralion . This order shall be effective October 1, 1990.
Hornsby, (.1., ;lnd M,lddox, Jones, Almon, Shores, Adams, Houston, Steagall, anti Kt:!nni!dy, JJ.. concur, •
NOTICE The Supreme Court of Alabamo has "dopled new Alabama Rllics of Professional Conduct (sul>erse<lillg the Code of ProfessionaJ Respon$ibilitY)i new Alabama Rules o f Disciplinary Procedu re (Interim) (slJperscding The Alabama Ru les of D isciplinary Enforcement)i and new Alabama Standa rds for Imposing LClwycr Discipl ine. These three new sets of flIle s and standards become effective January I, 1991 . These nIles and ~tandards will be publi shed in a Southern 2d Advance Sheet dated on or aboul Septem· ber 13, 1990, and then in Alabama Reporter, The Southern 2e1 Advance Sheet publi clltion w ill be in a special "A labama Edi ti on" maile<l only to subscribers with Alabama mailing ad· dresses.
September 1990
Opinions of the General Counsel by Robert W, Norris, General Counsel The following aA'! cases l)( Interesllnvolving lawyer discipline
Insurance coml)i\ny. Tne respondent lawyer obtained the
In other stales.
client's medical records, made a settlement offer and acceptoo
Bankruptcy In re AnonymouJ: Bar applicant may not be denied admi~ slon to PfaCtlce 10M' solely because applicant flied petition for bankruptcy. H~ an applicant may be denied admission based on a "lack 01 nnanclal responslblllry:' (N.V. C.APP. No. 251, 11130189). Hippard Y. Californ;iJ SCMc Bar: lawyer may not be denied reinstatement solely because he filed (or b.lnknJl)ICY and therebv discharged debts 10 his clients {lnd to the Client Security fulld, but Slate bar may properly consider as an indiC310r of requisite rclmbllh~llon, absence of ltrWye1's efforts to make any restitution, Reinstatement denied. (CaUf, S.c., No. SOO8378, 12/11189).
Fees E51ale 01 callaghan v. P.ukhurst: ~r rct.llned on COnlingent fee basis and then dlscharsed bv ellen! may sue 10 ~
reasonable value 01 hi~er services to dale of discharge e\1:!fl If client's case has nOl been trioo or set1lcd. This court rejects rule (adopted In Californial that the right to rocoycr legal fees docs not aCCrue until the OCtur~m;e of the contingency, i.e., money damagcs recovered by client. Instead, Court adopts a uOexlble" rule giving trial court the discretion 10 alleM' the lil'N)'er to sue Immediately If the client already has a "ready $OOr(e ci paymcoL" (Illinois App. Ct., 3d Dis!., No. 3-89.0002, 917189). Dlwict d Columbia Bar l.eg.ll Em/a Commlltce: l.avt'ye(s oocthird contingent fee In case resol~ by struc1ural settlement must come from one-third 0( Initial lump sum payment plus onc-thlrd 0( each periodic pt.Jyment rec::elVL'd by the client, unless lawyer and client have agrero to different method of c:.lculallng the fcc. 10pinion 206, 11(21169). Phil<1(/elphia I#r AS5ocliJfion Professional Guidance Com路 miflt'e: Lawyers whose di5solution agreement will form two firms and calls for division of C(l5eS <lnd contingent fees upon termination 0( preent flnn must inform clil.'nts 01 proposed fee. splitting and may I"IOt divide (C('>5 In any case in which a client objects. ,",*st Virginia 51.11(' 8ar Commillee on Legal Fthics v. Gal. la8Cr: Lawyer's 50 percent contingent fcc for Simple IJetSOnal injUlY case, requiring less than 11 hours of work 10 achle\le scltll.'n'l(!11t, was clearly excessive and warrants both public reprimand and restitution. Client who was unable to read and wrlle was Injured while a passenger In her son's car. She did not wish to sue but merely wanted lawyer to negotiate wilh the
The Alabama Lawyer
tnc Insurance romP.loy'S flrst countct-offer. The lawyer's fee was not discussed nor wa5 " written fee contr.aCl executed. rNNa. Sup. CI. App., No. 18701, 1/24/89) (Note: The proposed Rules 0( Prdcssional Conduct 0( the Alab.lma State Bar adopf a Uclearly excesslYe" standard). loons to judges In re Udov: ~r loaned S4.ooo In cash 10 Judge for "cam路 p.algn purposes:' l..'lWycr had no cases before thi! Judg!! il1 the tlme, but two cases were later assigned while the loon was out路 Slanding. While DR iLlIotA.l permits IfMo)'Ct'S to make campaign contributions to Judgcs this was deemed a violation because II WdS made directly to the judge and oot to the Judge's cam路 palgn comminee. The I~r was suspended for sill months. 1544 N.E. 2d 294 (III. 1969)1. In re ChaIZ: I..1wyer loaned judge SS.ooo. Unlike Liebl there was 00 evidence that II was for campaign purposes. Although the record t'e\Ealed no evidence that the lawyer sought f<Mm from the judge, his flrm did h~ cases before the Judge and the Court was "disturbed" that the lawyer did not disclose the loan to opposing counsel in this case. 1546 N.E. 2d 613 (III. 196911.
Loans from clients and othe r business tra n ~ct ions In re Imming: ~r bof~ money from eigh1clients to suppOrt his falling plaSTics manufacturing business. No the time the loans were made lhe lil'\o'IYCr WilS performing some legal services (Of lhem or had performed legal services within a relatively short period of lime. The lawyer did nol advise Ihe clIents of Ihe finrlnclal status of the COnll)i\!lY or h mse1f nor did he advise them to seck the advice of other counsel. The klWyer contc!\dcd thm the Code did not "!>Illy bI.'Causc ilt the time of Ihc loans the p.lrties involved were not In an attorneydlent relationship wllh him. The COurt ruk-d thill misconduc1 \\Quid have I)CCI'I cstabllshed L'VC!\ If the croditors had not Ix.~n clients since his failure 10 disclose the nnandal problems of the COmp;lny to nnandal Investors would have (!Videnced a lack 0( personal honesty. A two-year suspension was Imposed as a "deterrence 10 impress upon the I~r and others the absolute necessl!y 01 full disclosure In business transactions with cllcnIS.~ (Ul. s.c., No. 67138, 91211891. In re Spear: A lawyer was suspended for five yeat\ for entering Into a real estale deal with adIent without Informing the client oIlhe qucslionable legality ci t<lll advice he g<Ml or without glvin8 thc client speciflc advice :about seekins Independent counsel. Thl' Court said, "To minimize ethical I)roblems, no
305
lawyer should allow iI clienlto invest or otherwise parti<;ipati;l in a lawyer's business vcntul'(! unless the dlent obtains Independent legal advice. Nothing else will protectlhe profession's Integri ty and the public interest." (Ariz. S.C., No.
58-88-000900, S116I89l. Mallcr of U,banich~ Lawyer given iI public reprimand whcn he, while engaged In a real esta te venturC! whi ch was in nnanclal difficulty, sold a lot and used Ihe down payment for o ther purposes, In ilddition, he continued to accept deposit$ for Construction of homes he knew, or should have known, would nC!'V(!r be built. The Court silid:
"As this ca se illustrates, lawyers who embilrk em sJ)eCuliltive bu siness ven tures f!Xpose themselves to ri sks not borne by members of the bar who confine themselves to the practice of law, 'INc need not detcrmine the l()\o\IoWater mark (or nonlawyer bu sinessmen to affirm that liIW"r'lrs should ~ ilbove-board in their bu siness tranSilctions. A law. yer who aCls dishonestly di scredi ts the repu tation of all lawyers." [566 A , 2d 814 (NJ, 1989)[ .
0'
said, ''The rt!tenUon legal counsel is fundamen tally different from the purchase and use of ordinary consumer prOducts, , , , The choice of an attorney Is far more Important than thilt of a I" undry detergent or household apl)liance:' [564 A. 2d 8 42 (N,J, 1989)1.
Ca lifo rnia Stllte Bal St.:Indins Commit-
tee o n Professional Responsibility: .A lawyer can not shield improper solici tation from scrutiny by securing a w;'tivcr of such conduct from th~ dlentin the rotalner agrcement. Such a wal~r would not rclleve the lawyer of his professional oblig.ltlons under the Rules of professional Conduct, whi ch are de51gned to protect the public.
Reciprocal discipline In re Allred: Lawycr disbarred by fedcral appeal s court for failure to comply with orders of tha t court. Upon review of fa cts, state court imposed public censure and one-yeilf supervised proba ti on, including condilion th" t l\lWyer abslain from ilicohol use and continue with alcohol coun seling. [777 P. 2d 905 (N, M , 1989)[.
Advertising and solicitation
Disability defense
Rose v. State Bllf: lawycr for accident vi ctim may con ta ct o ther vl ct/m s to Investigate and develop evidence in support of clien l. A Iilwyer who co nta cts victim s for legitimate investigative purpoS(!s is not barred from then representIng th em If lhey request, although unethical to d irectly solidt such employment, [779 P. 2d 761 (Calif, 1989)] , Maller of Cao/a: A lawycr received a public reprimilnd for sending a leller to a prospective c lient containing mi srcp. r<!SCntation of hiSbackground and experience as a crimin al d~fen s@ attorney. Th e lawyer acknowledged that h~ engaged In " puffery:' The Commlt\cc on Adverti sing
In re H oover: law)'C( who misappropriated substanlia l sums of money from his ( Iient suffered from bipolar manic depressive psychosis. Psyc hiatrists believed lawyer M'Naghlcn insane at the time of the misappropriation. Court hl;!kl that mental Illness may be used In mitigation but is not a pcr se bar 10 ImpoSing sa nction s on a lawyer for ethical viol ations. The court al so held that the lawyer Is not deprived of equal protec tion of Ihe law Simply 1ll.'C" u$C he, as with other lawyers, Is subJcct to bar discipline for conduct Ih"t could not havc formed the ba sis for criminal prosecution. [Ariz. S.c., No. 5B-88.Q029-D, 7/28/89)]. â&#x20AC;˘
306
Letters to the Editor I must have sa id thank )"Ou a million times in the last three mon:hs. You might think that after thill many timc$ it W(luld become meanins less, or perfunctory ill best. ~t me tell yOU thaI Is furthe~t from the tru th. I havc grown 10 apprecia te people-some of whom I nl'\li!r knew \!Xisted before March 17. 1990 (when Elba flooded) . I am am azed that help has come so oflen from places least ex¡ pe<:tcd, My parlner, Mark Vaughan, and I hJVC found new reasons to take pride in thi s frilternity of lawyers. Do7,l;.'ns of Our colleilgues have come to o ur aid, ilnd hilvt! providt!d us with val uable tilngibl e aid , I am d ictating Ihis lellcr on a nlach lne that wa s collected from some good law. yer. It ISrl" new, and it Isn't the most modern equipment available, but it works, It helped gcl us bile\< in b\l sines$, and i t is something that we did not hilve 10 buy two months <lgo. Thi s dict;'t ting mach inl! is JUSt one of sc.'VCrlllltem s that have been so generously given,
I ex tend our warmest appreciation and thanks to the AI"bilnlJ State Bar and my fellow lawyers. tn fact, I lMln ex tend my congr;.tuliltions bcciluse I think that an organizatio n Ihat could jlIlrform so well under these circumstan ces deserves congratulating, I take I)rlde In being a member: Roberl E, Cilnno n, Cannon & V.lu ghan, Elba, A I;tbama
ScplcmOOr J 990
Recent Decisions by lohn M . Milling. Jr., and D.lvid B. Byrne, fro
Recent Decisions of the Supre me Court of Alaba ma Civil procedure . . . Rule 4.3(d) (1) rccluircs fac ts showing an avoidance for service by publ ication Fisher v. Amafanenl, 24 ABR 2040 (April 27, 1990). Amaranen l filed suh against the Fishers and eng.lged a pr0cess server to se~ them . The process server made six un)uccessful attempts to serve the Fishers at their residence. Process W,l S C\'Cn tually returned 10 thc clerk's o/nce marked " NQt Found:' Amar;meni filed a mo!lollto h3\le service IJi publicillion under Rule 4.3. A.R.C. P., and execuled an affidavit mentioning rhe si x unsuccessfu l at· tempts at sel'\-Ice and stated "d efen· dants are avoiding service:' The court granted the motion and entered it defauh judgment. Eventually, thc Fishers bec,lme;)Y.'ilre of the dclauh judgment and filed a Rule &O(b)(4), A.R.c.P., m0tion fOr relief maintillnlng that the j udgm~t was \/Oid because Ihey were nol properly SCIVi..'CI . The trial court denied the mo:lon, and the Fishers il~ pealed . The SUI)(emC court rcver5f.,'(I . The Fishers maintained thill Amar· anen! had failed to aver in the af· fidavi ts factS ~howlng that they had avoided serv:ce of l)rOCess. The
The Alllb."lnlJ Lllw'!el'
supreme court agreed . The ofricial comments to Rule 4.J(c1 state. ~More than mere inability to find the deferldant Is requ ired bec:ause the use of the term 'a\/Oidance' of service." The rule requires arl elemen t of culp.1blllty. The conclusory sta tement. made In the af· fid;wit coupled with Ihe process server's filUed attempts to pcrf~t ser· vice and hislilter endorsemen t on the process "Not Found" are insuffici ent to satisfy the requi-ement of rule 4.J{d){1), so thaI servi~ by publiC,llion was Iml)(opcr.
Civil J)rocedure ••• discovery precedes, n o t follows, d eterminati o n of merits of
litigation
FI/ pMle Kershaw, Inc. (Re: Kcrjhaw,
Inc:. V. Kershaw}, 24 ABR 1868 (April 20, 1990). The petitioner soughl re lief In circuit court asking that defendanlS be held In civil con tempt for an alleged violation of a non·competition i1greemenl and an Injunctive order. At thQ same lime, pelilloner SCrw<l lnter· rogatories and a request for production of documents seekins to discO'.'ef information pcrtainingto the transac· tlons alleged In the comemp. peti tlorl. Defendants obj~ed to thc dlsccwery on the grounds of rclcva rlCY and con· fiden tlalllY. PeW/oner flied ., motion to compel the dlsccwery, ano defen· dants produced cena!n docun'ents for an in camera inspection IJi the trial judge. The court statoo il wo"ld look
David 6. B)'roe, If. , is jJ graduate of the Uni~rsity of ... Iaooma, where he received both his
lohn M. Milling, Jr., Is a mem/)cr of the firm of Hili, Hili, CMer, Fr,ln_ co, Colc & Black in M on/gomer y. He Hl'ilc/ullte of Spring ,.,111 Col/esc and the University of School of Llw. MllUn8 covers (he civil portion of Ihe decisions.
is
II
"" ,loom']
undcrgroduawand law degrees. lie Is a member of the M On/gomery firm of Robison & Bclser
and CO'tlCfS the cr;miflJl portioll oI l~ decisions.
307
at [he docunlcrm [0 d(ltNmlne if [he
documcnts cvid(lnced a violation of its Inlunct i~ order. TIle COUft subsequently denied the petitioner's motion. The I>ctl. tioner requested the supreme co\rrl 10 order the defendants to respond 10 lhe discovery and Ihe supreme courtgranled the wri t. The supreme court nOted Ihat when assessing claims of confider)[lallty or privilege In dlscOllery mailers, it Is al>prOI)riatc (or th~ trial judge 10 conduct an in camera inspection of Ihe docu· ments. Where portions of the dOC\lmenls ~re disC;: O'o'Crable, Ihe trial judge might "c1I:dsc" those portions of the documents which II finds to be confidential or prlvlIeg(.>d. This procedure allows Ihe I)arty seeking di scovery to obt<lin the informa· tion helegltlm:l1ely needs, while, at the s..lnle time, preserving the adverse IXlrty's confidences. M;Herials 1'101 prodvc;:e(i should be plac;: ed In a sealed envelope in Ihe custody of the clerk for pre~erva· tion. In [hi s ca ~e, the court did nOt in· speclthe docunlcnts to dctermine if they W(!rc con fidential or privileged, but r.l1her to determine U they vlolmed the Injunction. In doing so, the court reversed the function and purpose of dis· covery in that discovery precedes, not fo llows, a d(Mrminillion of the merits of the litigation.
Municipal law ... $100,000 cap subject to §H-6·10 Elmore COL'm y CommiHion v. R,lgona, 24 ABR 1693 (Apri l 20, 1990). R(lgona obtained a $136,750 judgment ag.li nsl Elmore County and some individual$ In 11 personal injury action. Thc County paid $100,000 in court to s.1Iisfy the judgment. Ragona flied a moliOrl 10 have the $100,000 released to her and 10 h :l~ post· judgment Interest sct under §B-8-IO, Ala. Coele (1975). The county asserted Ihat $100,000 was the ma1l:i mum amQunt rO(:Qvt'rilbl(! from It under §1I-93-2, Ala. C(Jc/e (l97SJ. The triul C;:Q(ir1 rclc<lScd the $100.000 to Ragona <lnd awarded her I>ost.judgment Interest In the amount of 532,3 17.81. The county appea loo and the supreme court affirmed. In a case of Init ial Impression in AI~ barna, the s\rpreme CQurt hl!ld thi,l t thl! $100,000 cap establish!..'!! by §1I·93-2 does not preclude the operation of §8·8·1O, and that the county Is liable for 30,
Intcrest on a $100,000 Judgment even though that would allow at0\i1 1recovery to exciX'd Ihe $100,000 cap. The Suprt!me court rea!;()ned that had the Legislature wanted to limit the effect of §8·8·10 il could have easily done so in §1I·9J·2. The court noted that §8·8·1O is designed to enCt'lurage everyoni(!, c(lvnlicS a ~ well as prl \li'lIC ci tizens, to ilVOid unnecessary litigation arld to prompl ly IXry JudgnlcntS. The supreme court also noted that II has recently held that merest on worker's compensation judgments Is atlOVo'ed because it encourages prom])! payment and discourages long delays <lnd frivolou s appeals.
Rcal property. , • §6·5·2J5, et seq. is remedial and
liber.llly construed Spencer v. \I\t'51 I.Jdooma Properties, 1m':., 24 ABR 2163 (May 4, 1990). West Al abama purchased land (rom Campbell. It paid $10,000 cash and eKccuted a promissory note for lhe balance. 11 secured payment of the nOle by e)(ecuting a mortgage covering 1he land. We ~1 Alau:lma defaulted and Campbell foreclosed and purchased the land at public auCtion . Camplwll sold Ihe land to Spcncer. Orl!! day he/ore e1l:piratiorl of the statutory rcd crll!>llon period, West Alabama filed a complaint InitiatIng redempTion and tendered its personal check 10 red~>ern the lond. The c;:heck W,l Sdcposit<.>cl in an interest-beilring account by order of the C;: Q\rrt. TW(l dilyS :lftcr Ihc redemptive ilCriod Idn, the check was honored by the b'rnk. The trial COurt allowed redemption. Spencer al>pealed maintaining that §§6·5·235 and 238, fila. Code (1975) reQuire "payment" with in [he redemptive period. Spencer (lrgued Ih<11 lender of a check was not (;<1Sh or its equivalent Md was not "payment:' r he supreme court disal\rcOO and :lffirlllcd. The supreme court sta ted that because the word "payment" as used in the statute Is not erltlrely clear, It should be con. strued so thaI neither party is unfairly advantaged. The P\lfPO~1! of Ihi(! Statutc IS \() allow [he defau lting purchaser thc opportunity to rt.'(k'Cnt the property that has been 10SI by foreclosure. The statutory rights of redemption arc intended to "rescue" from "Silcrifice" the property of a debtor. West Alabama made ~ good faith effort to pay the amount due. Slri (:t
interpreta tion of "p;lyment" Vv'Ould serve only to defeat the legislative Intent behind the st(l tute.
Worker 's compensation .•. !ii2S·7·77(a) appl ied Radiology Associate$, P.A. v. SI. Clair Timber Co., 24 ABR 2141 (April 27, 1990). Campbell Injured his back while work· Ing wl thhl the line and scope of his employment. /-'e sued his employer for worker's c;:ompenSiltlorl benents and Imer amended hi s COml)laint to include 5t. Clilir, alleging that he was also <lr'I eml>loyce of 51. Clair. The Ifi<ll C;: O(Jrt eventually cn t(!ll!d a c;: onsent judgment whereby 51. Clair agrC<'d 10 pay all n~· essary medical costs directly related to lhe acc;:ident. Subsequently, R<ldlology Associates, one of Campbell's hea lth care providers, filed suit against St. Clair and ils worker's C;:Qmpen$(1!ion c;:arrier alleg· ing thatth!..'Y were responsible for C(lmpbell's rliedic:11 uills. Deferrd1'lnlS argvl!d that there was rlt'J contractual relationship bet'.'.'Cer1 Ihem and the plaintiff, and the coul"! granted defendants' motion to dis· mi5S. The plaintiff ~ppenled, and the supreme court affirmed . The supreme cou rt noted lha t §25-7·77(a), Ala. Code (1975) gives the cmplO'y1!r the tight 10 selec[ the doC;: lor for the empIOYt!e. j'lowevcr, "if the employee obtains nledical tri!<l\m(!Ilt from it doctor of hi s choice, the cmploy<!r will not be held liable for the cost of treat· ment:' if the enlployee obtaIns his OWIl doctor wi thout the ilPI)fQV,ll of the cmpl,*r. Plilinliff produced no evidence that defendants agreed t h~t plaintiff could trem Campbell at their C1I:pcnS(! or thllt defendants cOrlSen ted to plaimlff's trealm ent of Campbell. Accordingly, defendanlS were nOl contractually liable to PilY Caml)bell's med ic(ll bills.
Recent Decisions of the
United States Supreme Court Double jcol)crdy clau se-new test Cr<l dy 1'. Corb in , 89·474 , 58 USLW _ _ (M;ty 28, 1990)-Ooes the COr)5tilulion's double ·ieop.Hdy clause protect someone against being prosecuted (or an alleged offense based on conduct for which he or she already has
Sepwmbcr 1990
been prosccutl.·c:!1 The Supreme Court, In a fiVl.... to-fOur decision, ansv.t!red yes. In an opinion authored by lustlce William I. Brennan, the Court SCfJpped a double jeopard}' test it had used since 1932. The Court's earlier construction of the double il'Op<lrdy clause held that suc· cesslve prosecutions under sepimue sta· tutes wcre barred If each requ ired the same proof. The new test Is whether the alleged offense is based on the 5.1me conduct. Justice Brennan reasoned that, "The Oo\lble leop..lrdy Clause bill'l any subsequent prOSE(Ul ion in which the g<M.'fnmenl, to cSlablish an essential elem!"!nt of an offense alleged in that prosecution, will pr~ conduct that constitutes an offense (01' which the defendant has already been prosecuted." Justice Scalia Joi ned by Chief Justice Rehn<luist lind l ustice Kennedy dissented with the following words: "If the Double JC.'Op.l rdy Clause gutlrantced tht'! right not to be twice put In jeopard y for the same conduct. II would bar Ihis second prosecution •••• Bul Illal clause guaranlees only the right nOI to be twice put in jeopardy for the Silme offense:'
Pre tria l tlCl cnlion and procedural defects Uniled SUltCS v. Montalvo-Murillo, 89·163,58 USLW _ _ {May 28, 1990) - Must a defendant who otherwise could be held In pretrial detention be freed on ball if not gi ~n a pretrial detention hear. ing at his first Judicial appearance before the m'lgistr.lte as re<1UirOO by the Bail Reform Act of 19841 The Supreme Court, in a si )(-tO-Ihree oc'Cision, said no. Justice Kcnn(XIy, wrtting for the majori. ty, hdd, "The sak~ y of society docs 1'101 beconul forfch to the accident of non· compliance wi th statu tory time limits where the government is ready and i1ble 10 sh()\o\l release on bilil Is nol fea sible." Justice Kennedy said, "Nei ther the time requiremcnt nor any other plitt of Ihe act can be read to require, or C!\ICn suggest, thai a timing error must result In the release of a person who should otherwise be detained:' Invenlory sea rc h o f automobile's closed conlilincrs Florida v. \.o\.1:)lIs, 88·1835, 58 USLW 4454 (Aprl1 18, 1990)- Is phySical evl· dence selled in an Ilwentory search of a car Intpounded by police admissible if The Alabllma Lawyer
there was no official policy goYCrnlng whk h dosed cc)n t ~i ners are to be opened during invenlory searchcsl The Supreme Court, In a unanimous dt.'Ci· sion, answered no. Following his arrest lor DUt 'M!lls g.lIII! the Florldil Highway p,ltrol permiSSion to OI)(!11 the truck of his Impounded CM. An Inventory search of the Cil ' turned up two mmljullna cigarette bults In an ashtray and a locked suitcase In the trunk . The suitcase was (arced open and rcvcaled a garbagc bag con taining a considerable amount of mariiuana The Florida Supreme Court affirmed the sUI>pression of the evidence noting the absence of any highway 1><11rol policy on the opening of closed conliliners found during an Invcnlory search and held that ColorJdo v. Betlinc, 479 U.S. 367 requires the policy to mandate either thaI all containers be ol>cned during In· vemory searches or th.l t no con tainer be opened, leaving no room for discretion on the P.lrt of an ind vidual officer. Chief Justice Rehnqubl said the Florida Supreme Court was correct in excluding evidence seized by the state troopctt duro ing the inventory search of the 1m· I>ounded car. The Chief Justice criti cally noted: "In the present case, the Supreme Court of F lori d ~ (ound that the Florida j'lIghway Patrol hild no 1:tOiley whatsoever with respcct to the opening of ciosl.-d con tainers encountered during an Inlll:n· tory search. Y·i e hold that absent such a policy, the Instant search was not suffi· ciently regulated to satisfy the Fourth Amendment, and that lhe mari juana which was (ound in the suitcase, therefore, w~ s properly suppressed by Ihe Supreme Coun o( Florida." Fourth Amendment limit.llions 10 Pdrtoll Y. New York Nelli York v. Harris, 68·1000, 58 USlW 4457 (April 18, 199OJ- when the 1>oIIce have I>robable CilUse to arrest someone but do not first obtain the conslitutionally mandated Womant bciore arresting him In his horne, Is iI confession he gives aller being taken from his home admissible? A sharply dlyided Supreme Court ilI'Iswcred yes by a marsin of five-to·four. New York City police omcers, hllVi ng prob~b l e cause to oolleve that Harris had commill<.>d murder, cnter<.'(i his home without firSt obtaining a warrant. The of· fleers read Harris his Miranda rights and
purportedly secured an admission of guilt. After he was arrl.'Swd, taken 10 the pollee station and again given his MlrandiJ righls, Harris signed a written Incul· patory stiltement. The New York trial court suppressed Ihe first statemen t under Paylon v. New York, 445 U.s. 573, which held that the Fourth Amendmen t prohibitSthe police from effecting a warran tless ,Ifld nOn Consensual entry InlO a suspect's home In order to make a routine fel ony arrest. Justice White framed the Issue as foll0W5: "The sole issue In Ihls case Is whether Harris's second statement - Ihe wrjllen statemen t made al the stil tion house-should have Ix.>en suppressed l>eciluse police, by enteri ng Harrl s'S home wi thout a warrant and wi thout his Consent, violated Paylon v. New York, 445 U.S. 573 (1960), which held thm Ihe Fourth Amendment prohibits the police from effecling a warrilnt· less and nonconsensual entry into iI SUSpect'S home In order 10 make H iI rOuline felony arrest. JU$tic;e Whi te reilsoned Ihat the rule in Paylon was designed to protec;t Ihe l)hySlcal Integrity of the home, not to grant criminal suspects prowctlon for st.l temen ts made outside their I}remiscs where the police had prol;able cause to make an arrest. In such circumstances, lustice White wrote (or the Coort, the ex· cluSionary rule does not bar use of lhe confe5sion: H8ecause the officers had prob.lble cause 10 ilffest [the defendant] fOf a crime. Harri s was not in lawful custody when he was removed to the sta tion house, givcn Miranda w"'rnings, and allOWlXl to talk." Justice White (ontinued by S<1Ying that, " For Fourth "nll!ndment purposes, the legal iisue is the Silme as il v.ould be had the police arrested the defendant on his door sIep, Illegally entered his home to search for evidence and la!er InterroSJted JhimJ a! the sta tion house.H Fourth amendment slilndingovernighl gues! Mlnn~so/a v. Olson, 88·1916, 58 USLW 4464 (April 18, 1990)- Docs an overnight guest In a l}riviI!e home enjoy the
109
501me Fourth Amendment rights as the host? The Supreme Courl said yes in a SCVf.'n-to-two decision. M lnrleapolis police $uspec:ted Olson of being the driver of the getaway car used hI a robbery-murder. After recove r. ing the murder weapon and arresting the suspe<:tcd murderer, they surround<.-'d the home of two women wl1h whom Ihey believed Olson had been staying. W ith· ou t seek ing I)ermission and wi l h weapons d rawn, the polic:c enlered the home and fOund Olson hid ing in a dose!. They arresl(}{j him. ShQ,tly th erc{lfter, he gJve the I>olice a con fessio n which the trial COurl refused to s u pp re s~
The M inneSOtil Supreme Court reversed and held Ihill Olson had a suffi· cient Interes t In Ihc women's home to challenge the legtliity of his wilrmntlcss arrest. Olson al~o contended tha t the ar· rest was IlIes.... 1 bccllUSC there were no exigent circ:umS[.lnces to lustlfy the wilrrilntlcss entry into the home and Ihat his ~t a tcment was ",inted and should have been suppressed. Ir) PJywn v. NrJW York, supra. the Supreme Court held thilt a suspect should nol be arrested in his house with· out an arres t warra nt, CVCn though there is probably cause 10 arrest him. The purpose o f Ihe decision wa s nOI to protect the person of the suspec:t, bu t to protect his home from entry in the absence of the ma8i mate'~ findi ng of probable cau se. Justice White. w ri ting fOr Ihe miljority, held Ihal OI!KlO's arres t violated the Fourth Amendment. In short, Ihe Supreme Court held th at Olson's status il5 an CM)rnight suest alone WJS sufOclent to ~how that he htld an expectation of prl. vacy Isubj&tive eJ<:pC!(:tation) in the home wh ere he was a gue~ 1 and Ihilt sociely is prepared to rL-Cognlle Ihm as reasonable. See also Rakas v. IIlIno;s, 4)9 U.S. t28,
143·44 (1978).
WhO c. ,n consenl
to search? lIIinoi$ v. Rodriguez, 88·2018, 58 USLW 4892 Uune 21, 1990)-ln Unlled SIJICS v. Ma tlock, 4t5 U.S. 164 (1974), the Supreme Court reafOrmed Ihat a warran t· less entry iln(! seMch bot Inw enforcemenl officers does I10t violate the Fourth Amendment's proscription of "unreason· able searches and liei zure~" if the officers have obtained the consenl of ilthird party
310
who possesses common au thority over the premiSeS. The Rodriguez case presents the issue whic;;h the Court ex· pressly rescf'.'eC1 In Matlock, i.e., whether a warran tless entry Is valid when bilSed upon the c:onsent of a third party whom the 1>o1I( t!, tit Ihe lime of the entry, roa· sonably beliCVt.'<i to possess common iluthorlty over the prem ises, bUI who, In fac:t, does not do so. Rodriguel WJ S arres ted at his apartment by law enforcement officers and Chilrged with possession of Il legal drugs, The police g,lined entry into the apartment w ith the co nSCnt and assistance of Fischer, w ho had llVi...-'d there with the defendarlt several months. Fischer represented to Ihe offfcer;lha t the ap.1rlmt!nt was "ours" ;lI'Id that she had clothes and furni ture there. She unlocked the door wi th her key ilnd g.~ officer; permi ssion to ent",r. AI Irial, thc Judge cOncludt.>d Ihal Fischer was not a "usual re si dent" bu t ra ther an "infrC<luent visitor" at the apartment, based upon his finding tha t Fischer's name wa s not on the lease, tha t she did not con tribute to the ron t, tha t she wa s not allowed to invite others to the ilptlftn1ent on her own, and Ih{lt she did not haw access 10 the apilrtment when Rodril!uez was away. Justice Scalia reversed and remanded the case to the Illinois Supreme Court to determine whether the polic:e reasonably beli(.>ved tha t Fisch!'!r had authori ty 10 con S<!ntto the entry inlO tlw defendant's apartnlenl. Writing for the majority, Scalia nOlL"Cl tha t the record demonstra ted that the Sta te had not satisfied its burden of proving that Fischer had "join t ,1<;cess or con· tro l for most purposes" over Ihe fQspon· dent's al)artment as is required under
United Sta tes v. Matlock, SuprJ. H ~r, the Supreme Court ex tended lIS decision In Matlock and held Ihat a warrantless en try could be valid when based Ul>on the consen t 11 third party whom the police, <It the time of th e entry. reasonably believed to possess common Jutharity over the premi ses, but who, in facI, docs nOt.
or
':.\5 with the many other filctual determinations Ihat must regularly be rllade by g()<,o(!ltIrl1ent agen ts In the Fourt h Amendm!'!nt context, the ' reasonableness' of a police deter-
mlnatlon of consent to erller muSI be judged 1'101 by whether the police wcre (:orreCt ln Ihel r {lssessmer1l. but by the objeclive standard of whether the (tiCtSnvailtlble althe moment would warrant a person of reasonilble cau tion In the belief Ihat Ihe consenting party had iluthority over the premises. If not, then warrantlcss entry wi thout further inquiry Is unlawful unless .l uthorlty actuti lly exists. Bu t if so, Ihe search Is valid.'"
Po l ice sobriel Y checkpoints do no t vi o late Fourt h Amend men t Michigan Slate Police v. SiIZ, 86·1897, 58 USLW _ _ Ollne 14, 19901-00 police sobriety c:hC(;kpoints, where motorists are detilined briefly in the tlbsen(e of any indlvlduall:ted suspicion of drunken driving, viola te the Fourth Amend ment's b;lIl on unreasonable police seizures? The SUI)remC Court , In a six·to-threc d&ision, anWv'Cred no. This dt.'Cision is extremely signi ficilnt ilnd marks the first time that the Supreme CQurl has all~d suspicion less SlOPS by the police In the pursui t of routine law enforcemenl aClivl ties. Chief lustlce Rehnqul Sl delivered Ihe opinion of the Court, 51atlngln pertinen t part as follows: " The balance of the sl~ t e's Inlerest In preventing drUtlken driving ... ;md the degree of intrusion upon individual mOlorists w ho are brief. Iy 5toPl)(!(1 weigh s in favor of the Slate prOgri'lm." The Court's ruling presents a balanc· ing lest belween legitimate stale interest against lhe minimal intrusion CilU Sr..>d by a brief Investi gatory stop.
A n o nym ous te lephone tip ( an furnish rea so n able suspicio n 10 make investi gato r y SIOI) Al,lb,lnJa v. White, 89·789, 58 USI.W _ _ (June II, 1990)- C... n iln tlnonymous lelephane I p whi t:h wa ~ lOOS(!ly (:arrObomted b)' independent police work con s t itut~ sufficienl indicia of reliability to provide re~sonable suspi· cion to make an Inves tlg~tory stop? Tht:> Supreme Court, in a six·to-three decision, an~wered
yes. 5eplcmoor 1990
Under Ad.'lms v. Williams, 407 U.s. 14) , 147, (In informant's lip m"Y c;arry suf· ficien t "Indicia of reliability" to justify a Terry StOp even though it may be insuffi· cient to SUl>llOrl an arrest or search war· ran t. Moreover, in Illinois v. GateS, 462 U.S. 213, 2)0, the Supreme Court adopted the "totality ot the cl r· Clln1stances" test to determi ne w h~t h e r an Informant'S tip establishes probilble cause. In Cate$, the SupreOlI! Court did not completely abandon the two-prong tcst of AsUi/llt and Spinelli whereby the infOimant', Yefacity, rel iability and basis of knowledge are highly relevant consider,ltions. The Supreme Court ,11$0 noted that Ihose same factors wert! rek.. vant in the "reasonable suspicion" cont C~ t although Ih!! COurt f(!i t Ihat an allowance had to be made In al>l)lylng them for the lesser sh()Y,ling requi red to meet the reasonable suspicion stilndard il S opposed to probable cau5C. Montgomery police detectives receivt.od an anonymous telephone tip tha t White would be leaving a pdrtlcular
apartment at d particular time In a Polrtlcular Yehlcle, that sl>e would be going to the Doby Motel 00 the Mobile High. ~ and thaI she would be In possession of c;ocalne inside a brown ,mac;he' case. The dclt'Cti~ imlllf!diatcly pJ'OC(.'('(j<.od to Ihe all..lrtmcnl building .md saw a ~hlc1e mlltchlng the description given by Ihe 111)Slor. They observed an unldenlWcd woman leave Ihe building and enler Ihe vehicle and followed her alon8 1he most dir(.'Ct roule to the Doby Motel. HOWl"v'Ilr, the pollc;e st()PI)(.>d her ~hiclc a l)tJfo~i mately 200 yards SOUlh of the motel. A consensual search of Whi te's vehicle re\\!aled a Sffi,lll quantity of marijuana, and lllter, after she was arrested and booked at police headquarters, three milligrams of c;ocalne were found in her purse. The Alabama Court of Crlmlr1.l1 Appeals reversed her cor1"'lc;tlon holding thai the trial courl should have suppressed the mariju,ma and cocai ne beCause the o({icers did not have Ihe reasonable suspicion nl'Cessary under Terr y II. Ohio, 392 U.S. 1. in order to
JUStify thl! Investigatory Slop of Whi te'S vehicle. Justice White delivered the opinion of the Court and acknowledged that A/Ilb-1ma v. While was an ~tremcly close case. Justice White observed thill standing alone, the anonymous telephone til) was <:oml)letcly lilcklng In the necessary indicia of reli ability since It provided virtually 110thlng from which one might conclude Ihat Ihe caller I'.JS hone~t or his Information reliable; morea.er, the tip gave no Indlc.ltion of the bilSis for the caller's predictions reg.lfdlng White's criminal activities. In concludin& Justice WI-Ite QbseMod, "Although il is a close case, we cooclude thaI under the totalilY 01 the circumstances, the anonymous tlp, as corroborated, exhibited sufflclenl indicia of reliabili ty to justify the Invcstlg.ltOry SlOp of re5lx)!1den!'s car. We, therefore, reverse Ihe judgmem of the Court of Criminal AI>pcals of Alabama ;md ll!'Tland for further procCf!dingi not inconsistent with Ihls opinion:' •
Riding the Circuits NOTICE Based on security measures, the Alabama Court of Cri mi nal Appeal s has decided to dose the post office box used (or many years
and receive mati at the streel address, Judicial
Bui lding, 445 Dexter 36 130.
A venue, Montgomery
Ma rshall
County
Bar Association
On March 21, 1990, the M arshall County Bar Association met and elected the (ollowing individuals os officers: Presiden t-C loud c E. H undley, III , Guntersville Vice-prcsident- lisa Karch, Guntersvi l le
Se<:rctaryltreasurer- T.I. Carncs, Albertvil le
- Judge John Patterson
The AlawOla lawyer
111
Memorials country for throe ~ars during 'M)rld Wilr II and the European Theater.
Upon completlol'l of his nl!litJry
duties, Judge Enzor entered the Univer.
Phila nder Lio nel Buller-Birm lnghJm .A.dmitted: 1950 Died: July 26, 19'JO
Ron.,ld Alan Drummond- ScolISLlOrQ Admitted: 1972 Died: July 22, 1990
Jesse Willard Pienell.l-Tall,lSsee Admitted: 1940 Died: July 29, 1990 Thonms Arnold Scott, Jr.-Scotlsboro Admitted: 1956 Died: May 9, 1990 lohn Kno_ Wino-Cla ylon Mmiued : 1940
Oi{>d: January 4, 1990
III ,,"',Il c, . I
~/()R
Judge lel,md G. Enzor, former probate Judge of Covington County, p.1ssed JW~ March 9, 1990Judge EnTOI VIas born in Covington
County on July 16, 1923, and graduated from Andalu sia High School I" 1941. He altended I1lrm lngham.Southern Coliege on II scholarship, In 1943, Judge Enzor enlcred the Uniled Stales Army, where he served /lis
J12
sity of Alilbilm(l x hool of l aw i1nd c;.rned his law degree. In 1948, he marriL'Ci the former Bonnie Stew. . ,t of the Rose HIli commun ity. After receiving hb law degr(!(>, Judge EnLOI Cilllle home to his bel(M.'(/ Ca.oingIOn County, where he wenl to work for AlateK.... ndilla as personnel director, He held this posiTion for siK and il half yeilrs. t·le was ell!ctcd mayor of Andalu sia ,md sCMXl in this position from 1956 until 1959, In 1958, he riln for IIrld was ell'Cted probate judge of Ca.olngton County. Judge Em!or served as probate Judge for 26 years.. He was re-elected for a mth term by 83.5 percent of the vote, Due to HI health, Judge Enzor retired durIng his Mth term of ornce. UI)()n retirement, Enzor opened a small law pradice in Andalusia. Through his law practice, he helped h i ~ fellOW Covington coun tians, often with linle or no pay, wi th their k>gU1 problems. Judge Enzor was the founder and first president of the Alabamal'roOOte Judges Associil1ion. He was past president of the Alilbilma Mental Heillth Associalion and tho South Central r\labama Regional Alcoholism Coundl.Also, he was chairperson of the Soutt> Central Alabama Mental Health Board. He received the Chamber of Commerce President's Award In 1989. lie was a member of the American Legion, Veterans of Foreign Will'S, Masonic Looge, Sconish Rites and Ih~ Alcaza f Shrine. He was a past prC!:§ldent of the Andalusia Kiwanis Club and the Alabama Juvenile Court Judges AssociatiOll, He served 12 \'Cars In the Army Reserves. Judge Enzor is best remembered (or his abIHty to listen, understand and help all who had an occasion to come befOre him. It can Truly be §."lId that he dcvotl.'d
his life to the service of the people of Covington County, He will be dC<!ply missed and fondly remembered. Judge Lelarld G. Enzor i$ survived by his wife, Bonnie S. Enzor of Andalusia; one daughter, Phala E. IJoney of Bilton Rouge, Louisiana; two sons, Leland C, Enlor, Jr., of Andalusia and Rheu S. Enzor of Montgomery; llIld six grandchildren. -Sherrie R, Phillips, ludIC of Probate, Covington Count y, Alabama
MON( lJlO
(AMI'II~
O ' NI t\l
MOncure Camper O'Ne~l, a highly respected attorney pradlcing primarily in the area of municipal fiIlilOCC, died Saturday, August 5, 1969, in Birmingham, Alabamil, at the age of 82 . O'Neill was born in flOrence, Ala· barna, on April 29. 1907, He was graduated from Coffee High School in Florellce, where he was twice named an all·~tate footbil ll plllyer. He received the
September 1990
bachelor of arts dl!grce from Dilvidson Collcge In 1928, He rccelYCd his law degree from Columbia University In 193J, O'Neal was awarded the lames Kent Scholarship (or di stinction as a scholar dunng his last two yc,lrS at Columbia, He was admil1ed to the bar of the Stilte of New York in 1933 and was admitted to praclice law in Alabama In 1946, He wa s a member of the Birmingham Bar Assocl11lion, Alaooma Swe Bar, Ameri. can Bar Associillion ilnd The Associalioo of thl! Bar of the City of New York. O'Neal began ;'is practice of law in 1933 by serving on the legal slilfl of the Agricultural Adjustmen t AdmlnlstrOltlon. In 1935 he went to work wUh Ihe Willi Slrl!et law firm of ROOI, Clark, Buckner & 8allan tine (currently known as Dewey, 8allantlne, 8ushl7,o, P.llmer & Wood), where he scrvf'!d as an ,Issociate with John M . Harlan, who later Ix!came an associale justice of the United States Supreme Court. During 1941·42, he wa s assistant corporation counsel In Ihe law depilrtmQnt of the City of New York. Fiorello Ilenry La Guardia was mayor of the City of New York i\1 the time. O'Neal S(>rved in the United Stiltes Army from 1942 to 1946. For two and a half years, he trained !rOOf'S In handling and flying barrage balloons at Camp Tyson, ncar PilriS, Tennessee. l'le then served on the leg.ll Slaff of the Chief of Ordnance in the Pentagon. In that posl· tlon he WOlS ~pun,ible for the legal 'M)f\c of the Tank-Autornolivc Procurement Division of Ihe O'tlnance Deparlment.
He retired from the Army Reserve as a lieutenant colonel. At the conclusion d World War II, he returned to Alabama. He nrSt Iilught In the University of Alab~ma School of law at Tuscaloosa for a ye~r. He lhel'l Joined wllh Lawrence Dumas, Ir" and Hubert Hayes to form the fi rm of Dumas, O'Neal & Hayes In January 1947. This firm merged with Ci\banlss, Johnston, Gilrd· ncr & Clark to become Cabaniss, John. Ston, Gardner, Dumas & O'Neal in 1974. O'Neal specialized In rendering legal opinions 00 state, counly and municipal financing. He retired from aclive practice In 1983. O'Neal Wil S milrried to louise Clarke on I.Ulunry 27, 1945. He is survi ved by his wife; three sons, Moncure C.l ml>cr O'Neal, Jr., of Great r-alls, VIrginia, Bertrand Clarke O'Neal of Birmingham, and John Coffee O'Neal o f Cllnlon, New York; one daughter, Marie louise Clarke O'Neal Tucker of Birmingham: and ~n grandchildren, one of whom was b(lm after his death. O'N@al stood in a nOlable tf'ddition. He WJS the son of Edward A, O'Ncal, Jr., a national farm leader and president of the AmeriC.1n Farm Bureau. He was the greM·grandson of former Alabama GoYernor Edward A. O'Neal. The O'Neal Bridge over the Tennessee River in Florence was named for O'Neal's great· uncle, former Alab."\ma GCM.lrnor Emmcn O'Neal. H is hobbies were: golf and genealogy. In addition, in his retirement he made it a practice to spend lirre each 'oYCCk with
his grandchildren who lived In Birming. ham, Instilling in them both a Ir;we for books and his love fot golf. ~I e was a member of and has served as an officer of the Society of Colonial Wars, Sons of the Revolution and Ihe Society of War of 18121n Alabama. He Wil Salso a member of Ihe SI. Frilncis XiJ\Iicr Calholic Church, thtl Mountain Brook Club Md the Down· tOYo'Il Club. I-Us fraternity w~s Phi Gamma Delta. O'Neal: He was a gentleman, O'Neal distinguished himself as a scholar, a skl11ed attorney and a devoted family man. l'ie left a leg.1CY of hoMr. humility and Integrity. It was a I>rivilegc 10 have known him. II is a challenge to follow in his tradition . A scholarship in O'Neal's honor has been established by the filmily althe University of AlaOOma Law School , DOI'Ia· lions may be sent 10 I'le Moncure Camper O'Neill Scholarsh pFund, P.O, Box 870382, Tuscaloosa, AI~b.lma 35487.
•
- Stt.'Ye A. Tucker, (Moncure Camper O 'Ncal') w n·in·law) Cabaniss, lohnslon, Gardner, Dumas & Q 'Ne,l! Hirmi ngh ~ m , Alabama
Please Help Us ... We have no wny of knowing when one of our mcmbcf"'hip i~ dccea~cd unl('~\ we t1(' notified , Do not wait for ~omeO lle el~c to do it; it' you know ot' the dea th of one of ollr rnelllber~, pl ("N~ let u\ know. Memorial informatlo!) must be in writing wilh narne, re tum ,lddrCS5 and tclrphone numb",r.
The AIDbama Lawyer
31J
Disciplinary Report Reinstat ement • Kenn eth Paul Carbo, Jr., wa s rein stated to the practice of law by order of the Supreme Court effective Jlme 26, 1990. (Pet. No, 90.() 4)
Suspe nsion • Hugh Don WJldrop, a TU5Cilloo~ «\torney, is tempor,lfily suspended from the practice of law in the Stille of Alahilma effecti ve immcdi,lIe!y by order of the supreme courl dated May
29, 1990, undl>r Rule 3(e) of the Rules of Disciplinary Enforcement [Rule lie) No. 90.01]
Priva te Reprimands • O n May la, 1990, ,In Alabama lawyer r'<'Cci..ul a private reprimand for viola tion of Disci plinary Rules 6·101(A}, 7-tOl(A}(1), 7-101(A)(2), ;lr\d 7·101(A)(3}. The lawyer WJScontacted by the clien t to file bankruptcy papers and also 10 represent the cli ent against a fina nce company w h ich was seeking 10
repossess the client's mobile home. Tne client pai(! wn(l! she thought to be one-naif of the lil'Nyer's fee. However, tnc lawyer fililed 10 file ilny bilnkruptcy Impel'S Or any Olner pleadings on behalf of Ihe cllen!. Due 10 Ihe lawyer's failure to protect the interesls of Ihe client, the client's mobile home .......5 repossessed,
The lawyer was found guilty of willfull y neglecting iI legal matler entru sted to him, of failing to seek tnc lawfu l objcttivcs t)f his elienl, of falling to carry out a con tract entered Into for professional ~rvi ces, and, of prejudicing or damaging his clien t during the course of tile professional rel .:uionsh ip. [ASS No, 88·297) • On May 18, 1990, (In AI"bilmil lil'Nyer received a pri V(lte reprimand for vi oliltion of Disciplinary Rules 5-I01(A) and o-101(A). Tne Di SCiplinary Commission dewrmined Ihat the lawyer wi1!fully Ileglected a real estate tran saction that he handled and Ihal he allowed hl s l>crsonallntcrem to interfere with his represel\talion of a cli ent, [ASS No, 69·71] • On May 18, 1990, an Alab<lm<l l;rwyer wa s privately rep. rimanded for viola tion of Disciplinary Rules 1-102(A}(2) ilnd 3·103(6}, The Iilwyer in question entered jOlt) a rdalion ship with iI non.lilWyer wnereby the non-lawyer advertised to solidt business for Ine preparation of will s lind Ihell referred th e legal business to Ihe lawyer In question. The Disciplinary Commission determined that this ci rcumven ted the Disciplinary Rules by Ihe actions of another and aided and abened ilnother In th e unauthorized practice of law, all in violntion of the Code. [ASB No. 89·459) •
i~~~~ ~-~~~~-~------------------------------ ~~--~~~-- -------------- - - ------------------~--
ADDRESS CHANGES 1'1, '",,' ~ h," l II"," Du~'
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L ______________ _ _ _ __ _ _ ___ __ _ __ _ ____ __ ________ _ __ _________________________________ _ _ _____ _
' 14
September 1990
_-_ ........_. ,_..... -.....-._ Classified Notices ...,......_-. _,...... _.... .................-__ ................. _-.. _._uo. . __
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FOR SALE FOR SALE by the Tusca loosa County Law Ubr;1ry, one set of each of the (01· lowing: Bender's Foren5ic Sciences "CivlllCriminaI Monon's on B;mkn.lplcy; the Restatement of Ihe law; Words and I)hrases; Proof of Facts; Southeast H
;
death and personal injury cases, Fel· loYI'i of Society of ActUoules. E)(perience in court. Can ilsslstln design of struc· tured 5eulemenr. Call D.wid Cod· ofsky-C&8 Consuhinll Croup, a Corroon & Black company, 1927 1st Avt.'nuc, North, 8irmin!;h.1m, Alabama 35203. Phone (105) 323·7000,
U!igillion Guide; ALR Federal; Wright
and Miller FI.·derall'racllce and Procedure; Shepherd's Causes of Action; Bender's Art of Advocacy; Bender's
Criminal l<lw Nlyocacy. All volumes arc curren! ilnd In cKCclicn t condition.
Please subm it writte n bids to the Law OUices of 0<111 M. Gibson, 29 16 7th Sireet, Tuscaloosa, Alabama 3540 1. Phone (205) 758-5521 . FOR SALE: Alilbama law Blbllo· graphy- Aulhorl1itle In(k>:<, over 325 ell· tries, Subjcct !ndelC, O\'t!r 425 entries. $23.95 (Alabam" s.1Ics t:ax .96JMont· 80mery city and county .96) Make check p<lYilble 10 Barrisler Press. Mail order to IPS/BP, AUM, 7300 University Drive, Montgomery, Alab;ullil 36 11 7.
FOR SALE: Rellring BIfI1l1r18ham lawyer will sell Sou , Rep 2nd compk>fc to date and Alab.lma DiliCSt UI)-Io..d"tc, includ· ing 1990 pocket pMS. Oak shelving included with hooks. PhOll1! (205) 321· 6400.
POSITIONS OFFERED ATTORNEY J0 65: National <lnd Fed· er.ll legal Employment Rel){)rt : highly rcgMdcd monthly dctailed listing of hundreds of altorncy and law-related iobs with U,s. government, other pubIIdwivate empl{ly'ers in Washington, D.C., IhrouKhoUl U.S. and abroad. $32- 3 months: S55-6 months. Fed· crOll Reporls, 1010 Vermont Avenue, NW, 111408·A8, Washington, D.C. 20005. Phone (202)393-33 11. Vis.v'MC.
SE RVI CES WRONGFUL OEATH/PERSONAL IN· JURY-Expert actu.uies will testify to valu<! of lOSt future earnings In wrongful The Alabama I.awler
EXPE RTS IN STATISTICS: Discrimina· tion, E~ or other m.ltlers. Our ex:perts h~ consul led and tcslified on r.taristi(s and economics over the pasl IS years. Plaintiffs or defense. qualified in many federal districts. Full Sf;!rvi( c consulting firm, not a r!.'ferral service. Dr, R.R, Hill, Analytic Services, Inc., P.O. Box 571265, Houston, Texd 77257. phone (713) 974·0043. EXAM INATION OF QUESTIONED Documents: Handwriting. typewriting and related ~miO<ltions. Internationally court-qualified e:pcrt witness. DIp. lomate, AlllerlClm Board of Forensic Document Ello.lllllners. Member: AmerIC;ln Society of Questioned Document Ello.lminers, the InternaTional A~sociil lion for tdenlWcaTion, tnc Brltl~h Forensic Science Society ilnd Ihe National ASM>Clatlon of Crimln~1 Defense l awyers. Relirt.'d Chief Document EXolllllncr, USA CI L1boriltorics. H;uls Mayer G j· dion, 218 Merrymont Drive, AuguSI.1, Gcorgiil 30907, Phone (404) 860-4267. n AFFIC ENG INEER: Consultant/EM' pert Witn us~. GrJduate, rcgisten.>d, professional enllineer. Forty years' experience. Highw;ty <lnd city design, traffic control dt.'Vicl.~, city loning. Write or call for resume, fees. Jack W, Chambliss, 42 1 BelldlUrst Drive, Monll\omery, Alabama 36109. Phone (205) 272-2353. LEGAL RESEARCH HELP: Experienced al1orncy, member of Alab.lma St.lle Bar since 1977. Access to SIMC law library. Westlilw Jvallable. Prompt deadline searc:hl.'S. 'vVe do UeC·1 searches. $lSl hour. SMah K.llhryn Farnell, 112 Moore
Building, Montgomery, Alabama 36104. Coill (205) 277-7937. No rcpre5cnt8!loll Is made ,1/;out Ihe qUlll/t y of Ihe le8al services 10 be performed or Ihe experli5e ol/he lawyer perform;n8
such services. EX PERTS IN VALUATI ONS: LoSI earnIngs; PI; businesses; professional practices; contract damages: patents, computer programs or Olhel intellectual properties. Our experts have testi· fied and con 5ulted on com l>lex ....,Iuiltions over the past 16 years. Qualined in many federa l lind statc courts. Full service consulting nn'l'1, not a refer· ral service. Dr. R,R, Hill, Analytic Servi('~, Inc., P.O. BOM 571265, Houston, Texas 7n57, Phone (713) 97"·0043, MEDICAliDENTALMALPRACTICE EX· PERTS: Our e:cperts successfully testify In Alab.lma. Gratis t1revicw of your medical records. Health eare AuditorS, Inc., P.O. Box 11007, St. Pt.'Iersburg, Florida ]]742 . Phone (813) 579·0054, For 51,'11 Svs: FAX 573-1333. MACH INERY & EQUIPMENT AP· PRAISER! 25 years' cxperi~nce. Li· quidation, f;l l, marker V"I Ull ilnd rcplaC"cment cost for capi",I, refinanc· Ing, bankruptcy, insurJnce, ClC. Wrile (or free brochure. Phillip D. Bryolnt, P.Q Drawer 966, Oxford, MississiPlli 38655·096&, Phone (601) 234·6204, CERTIFIED FORENSIC DOCUMENT EXAM INER: B,S" M.S., graduarc of uni· verslty-based resident school in docu· ment Cl(amination. Published natlinterna!. ~rlleen yc.lfS' trial Cl/;perlence In st;l rc and fcderill courts of Alabama, Forgery, <1lteratlons and document au· thenticity e:camln.'Ilons In non< riminal mailers. AmeriCJn Academy of forensic Sciences, Americml Board or Foren· sic Document EM<1miners, Amer1c"n Society of Questioned EX<lmlners. L.1· mar Miller, P,O, Box 5540S, Birming. hanl, Alab<lma 35255. Phone (205) 988-4158. 315
Classified Notices
Young lawyers' Section
SERVICES co ntinued PHARMACY CONSU LTANT .wailabte to provide assistance in pnarmacy reImcd matters. Consult,l ll\ hils law (11.....
gree .1I1d graduate Ir,linlng in pharmacy, pharm <lCV license and member o f the
AI(lOilma Stille Bi'lr. Vance l. AtclIMdcr, P.O. UOJ( 5'J2 iG, Birmingham, Alab"!llJ 35259. Phonl! (205) 99 1-729 1.
DIVORCE CASES·PENSION EXPERT: ~ ns l on actuary wHi determine present villue of accrued pension right s. Stiln-
dard fee for wrlUen viJluation . In-court tl"!stimony (o r hourly fee. CaU David
Codofsky-C&8 Consulting C rQup, it Corrao n & Btac k company, 19n lsi
Avenue, North, Uirmingham, Alabama 35203. Phone (205) 323-7000. Walk er Percy Badham, III
AU CTION COMPANY-Blrmlnghambased; wlVels south east; experience In
YlS President
h051>il<1 15, hotels, business liquidalions, commerci al and re sidential reill eSlille, Inven tories and ro ll ing Slack. Refer. ences fro m major banks <l nd lilW firms. C(lntact Jack C ro1nger o r Bill Thagard. InveSlrrll!n1 Recovery Auct ion, Inc. Phone (205) 930·9908 or 933·1777.
Don't let your Alabama Lawyers get worn, torn or
thrown away. Order a binder (or two!) at $10.00 each from: The Alabama Lawyer
P.O. Box 4156 Montgomery, Al 36101 or ca ll (205) 269·1515
'"
am truly excited abou t the upconllng year. It Is all hono r and a privil ege 10 have the oppo rtunity to carry th e banner fo r A labama's young la wyers. A long w ilh our on.going projects (Youth Judici al Program , SanDestin Seminar <lnt;! Bri d ge Ihe GilP, etc.), I w antl O focus on the iss ues oi lawyer satisfaction, both professionally and perso nally, and IX'!\l(!r co rn l'l'lunlcatloll abou t w hat yOUllg la..... yers acro ss the st,1\e are doing. I have ilsked Ihe fo llowing people to serve on Ihe eKccutlve commll1ee:
I
Chilrles I.. A nderson Robert R. Baugh Rebecca Show s Bryan l aura l. Cru m D . Ta ylor Flowers Fred D. Gray George W arren Laird, III Fril nk 6. POliS
Barry A. Ragsdale Robert J. Russell, Jr. lames T. Sasser Stephen W . Shil w Am y A. Slayden lilY Smith A lfred F. Smi th. Jr. A lyce Sprue ll W illiam O. W altOll , !II Hal W est Duane A. W ilson Ernesl F. Woodso n In ",dd iliol\, we have some great of· fleers: Keith B. Norman, president. c iCC I; Sid ne y W. J ~ck so n, III , secretary, and A. lester Hayes, III, treasurer. Please feci free to call il ny 01us if you hilve ;my qLl estions, com ments o r idcn . Finillly, I lhii nk Jilmes Anderson fOr hi s oUI slilndlng leadl!rs~ ;p thi s past year. l.u"'(.'5 did a tremendo us job and deserves ou r appreciation . •
September 1990
THANKS TO STRONG MANAGEMENT. WE'VE KEPT OUR BALANCE'FOR NEARLY HALF A CENTURY. MISSISSIPPI VALLEY TITLE INSURANCE COMPANY CONSOUDATED BALANCE SHEET MJlrch 31, 1990 ASSETS CASll AND lNVE$'t1!D /\$SE:r 5
Co.,h
Demand IJqlOSlts ..•.............•.....• Time Ot,lOISitS. , .. , .. Bonds, Ql amortizoo oosllmarkCl, 54,5~8,292) .. , ,
•2.'\29.249 10.9<15 4J07.637
Sl():k$
PrdcfrW, at tOO (nlijrI«.1. 598.5(0) . , , , .. , , , , Common, al m~rkcr (COSt, 5254.638) ........ . MortgaSC loans . . . ......... , ........... . lm'Clilmefl1 in(QIl)l! due DJlIlllCtrtll.!ll .
lbcal ca\h and inl"tSlt-d Wd1 ... , , .. , .. , OTHER NiSI:.,·S Acroumund premiumll r«cil'llble , ... Rc~1 CSMi:. buildiJlji1, furnitufC and t'lluiprfll-,n. ~t cost. less IICCUmul~u.-d oc'Prcdruion of 1696,630 . Tille plamsand r«ortls . . . . . ....... . Inl'('SIITlCflI in alfili~!oo 000lll11nics ......•• , ..• , Sundry ... , ................•...... " .... TOIal OIhcr asseu , ....... , , .....•.... Toul ~S5('lS ...... ,.......... . .... .
104.451 773.041 234.273 1671295 8.226.897 806.'180 381.891 1.0M.926 503.M3 240,228 2.998. 168 $11.225,065
UABILITIES AND SHAREHOLDERS' EQUITY
LIABILITIES CI~im rt:5t.'fVd ,.
• ••••••••••••••.....••...
$ 3.739.133
OFFICERS Rowan 1-1. l~IOf, Sr.
E. Leon S:!nders
r:JJoif .... {,Cf.
V... I'H,W ..
John 'r. Cossar
/Iit..""w ... III
I'H,J..,
J. Monoo Matrick F.utlll •• 1'0 PH,"" ..
,oJs.m"'J
F..« III•• v.... ~JoIolli ,oJ1;"',.,.,
Jo 1ildlock
William T. Blakely
Donald P. W:illkk
PalrkiQ Ihiky Brown
,1\",_/'011. ,uN
v... Pw.....lI At",_,...u.MN
J\-I~htli llc~ '''\~)lUe
V""n.u. ..
1'·.... 1...,;;,0/ Rjdwu A. Ct.'cdll.1tini
Sundry .......... . .............. . Toclli liabilities .................••... SHAREHOLDERS' EQUITY Common ~od:. at SMOO vaillCc4 $1.WI per share. AUlhorin'!:l 1,600 ~ha~; i$!illl.'d 322.6 ~harel ... PlIkI·in CtlpitaJ ..•...............•......... Unl"(':llil.oo ,!:ain on ir\''dtrrll:l1l5 •••••••••• , •••• Rt1ainOO earnings ........................ . tll!lJ!;ury Mock, al COSt, 19.~ Jh~res .....•••.. Toul sharthokk:rs' equity ............. . 'lbtaJ liabilities and shareoolders'
u.-u
t'I]lJily •.•......••••••••••••••••••
722,2)9 4.(>44.410
Carolyn FfC.'l:lTIiUl Vi<t PwJidl ..
DIRECTORS Dudlq 11. IlridgfOrlh. Jr.
Donnie D. Riley
II"...., So..,bI,. .. MS
11"""":1 GoIfr-. MS
Richard A. Ceccoc11ini r.ltl......... c.. o/M,.>w<w
John T. Cossar p..,JJ. ..
4,308,8 12 267.162 U97,877 !93.9~4)
r••" ...,j r....,.,../;.",
6,~8M9~ $11,22~.06~
0.,
Sc/JoD/o/IM., i\\.A.l..ewis, Jr. ~tJJ~ CA/Iqf
111_,
Howard In McMillan. Jr.
"""'.C......" Ot{>OIii
/IIo1.".,11!."
J. Monon Matrick &OCIIIn. I'i<.
..Js.rn"'1
J.M. Sellari
-.
tMc.,n.
v.., p".""..
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