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TlzeAlabama 0" (h, Ctwfr ASH Pnsldcllt Wad, II. 1111.,: lfI/I und (IImllll. The cover photOllr~ph Ihow5 1999· 2000 Alabama Sta\~ ElM I'rul dent W~dt It. U;ulc)' and his family on the l)oth~n

Country Ci lib golf CQurse. From left to right are fOn Ilamp J]axl ey. 27, a se:ond·ytar sludent at the Unj\lmi ty 01 Alabama School of I.aw: Mr, ltulc)'; wife Joan Raxley: and IOn Keener Buley, 25, a mutual (und accountAnt with Waddell &I Reed ~'i nancjal Services In Kanw City, Miuouri. Mr. Baxley is the senior partntr in the firm of Ramsey, Buley &: McDouAlt In l>othan. - Photograph b, G6ill~s Photo ServiCff

IN THIS ISSUE RF.MANKS OF' F'REO O. GRAY: PEI't'ERDINE UNIVt:RSm' ScUool. OF !.J\W COHMENCEMEtrr CONVOCATION ••• , ••.• ..... • , • •••••

291 ASS VOI.tJNTt:ER LAwYERS PROGIWI L&AoERSIIIP COUNcn.s .. ... . • .. , .. 312 AIUlITRATION: POST·AwARI) I'ROCEOUIlES , , • , . , .•...•••... .•• •• ...•• 314 !·IF.IPINC CLU:NTS WITH TAX D ~:IlTS ' ' ' ' ' ' ' ' ........ . ............. 325 STRESSI STRESSED! STRt:SSt:D OUT! .............................. 332 ASB PRO BoNO AWARD WINNERS .••....•..........•..•.••...... 335 LITIGATION CosT CoNTROLS AN!) TI-lE PROFESSIONAl. Om.IGATlONS Of! INSURANCE DEFENSE LAvm:1tS ....... ......................... , , 336 WilY AWOMt-:N'S SI'XTION? •• , ••• " • . " .•• " •• , .............. ,. :340 Ft:m:RN. AND STATE TRIAL COURTS ADoI7f STANOARt>S FOR

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Board ol @dlton Robe,. R. Baugh. Bhmhgllam ' Wllt'del J . Chlmbll.., Birmlngllam . Olllkl B. cn.mpII~ , 81rmlng/Wrl ' 0I&11<III O. CadI ..... BI'm~III ' M. 00nII1d Ol.r., jr.. MobIle ' LIrdI a . FI/p9o, Blrmlngllarn ' V~aN J. Frarlklln· Sif.rIOII. 8hrll/rlQllltm . Yiilll~rn G. Glon. BlrrnIr¢.rn · O.-rl V.GlllOt. Mon~ry ' Notrn., Je!rnUrlClHorl, JI.. BI""lngnam • MlcNlei A.. KlrllllllCl. Monloome"" • Deborah S. Maf\UO(l. M"'~ry • Joycll E. MlIY. Mobi'- • Han . Vm~zoltm P. Mc~, MonI~",, · G~ J. McPhef'lOll , MO/Iloomery ' Allin T. Root .... BJrmingl\jlM . ~II/IeW A, Vf(III. 81rnll'lgll6m ' Kovtn Waldjng, Doll1an ' Robitfl M. W\IlntMrg, MO/II~rl O l!~ .. Wadi! H. BaIl.ley. DoIhan ...................................................................................... , ................. ,...... ,. Pr.eldllnl ............................................................ P"*'-ol·Etect S.f'llUtl A. AUITIOfj. Jf.. BIII'III!I\lIIIm...... .................. SatTIIIIII H. F..ol<tln, BI'...ngl\ilm ....... ,... ,,, •• ,, ...... ,, .... ,,,,,,.,,,,, .... ,,,, .. ,,,, ................................................VIce·P'.1IIMn1 KotIIh B. Notman, """Igame.y ................... ............................. .. ..... , ..................... ,," , .... ,,,.,,""''',Stefetal)'

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lSI CIta.IIr, E. MatI< 1!1OII, &.rlt<. 211(1 Clfwir. FrJ,rIIc A, I-IICIUIIIn. GrgetWilf, 3rd CIrCulI. WIIIiMI I. a,ubb. II. Eulaula. 41h Circuli, RIIpII N. HoIIba, SIinI.. SIll CItcuI!, 1':"'"1'" S. Sapp, fir."... ell1 CItM, PIIIee NO. 1. W. soon OonIIkIIon, ~. 61h Cirt:uII, PIIOI NO.2, J. DougIu Mcflvy.~. 7111 arcult, William H. IItoome, ArIr'dI<ln. &1/1 CIrcuiI. WlIIam E. SNnn. Jf.. o-rl\lf. gtt, CIrwII, W.N. W'I8On , Ft~. lOll! CIrouII, " ' - No, 1, s..muet H, Ffeflkllrl. 6ir1'llingl\flm. 10\11 Circuli. " ' - NO. 2 • ..I4rnM W. a-tn. IIirmngtwn. ICII1 ClrWI, PIIOI No. 3. J. MrlrIr WIIIIo, B~II'lngNm. lQ1h Cirwh. " ' - No.4, Cht* R, JohIrI!IO/I, III , 6IfllWlg/lam. 10th CircuIt. PIIOO No. S. Ea..ard P. Me)'ItrKIn, Slrll'llrlglolrn. 10th Ckcu/I, Pt.co No. e, M"" B. 0 - - , ~ 10111 ~, PIIOI No. 7. $1fQheII A. Rowt Blrmlngllam. 10111 CIreuI1. PIIOI No. 8. MU C. ""PI. J, .. Blm\IngI'IMI. 10lIl ClrcuIl, " ' No. t , ClrI)I H. S-rr, BI~m. e.-r...C\I1oQ11. 0t0Ivt M, H~. BfMemIot, 11111 CIrculI. L. aonc., FIortnce. 121t Circuit, .JoIoeptI1':. FIUIk, Tr'O)I. 13111 CIrouII. PIIOO NO. 1, WotNty ~, I.oIoCItt, 131!1 CIreu~, PIIOI No. 2. IJjly c.~, MobI'-. 131!1 CIrwII, PIIOI No.3, Catoe O'RH', III, MoIlIIe. 13th CIrculI, PIIce No.', Ctlift J. COIInt. MOdIo. "111 ClPOOIl. PIIklp P. 1$111 CImAI. PIIOI NO. 1, RobIIf! O. SeoaI, MonIQOme"". 1 ~'" CtrwI, PItoo No. 2. WIIorocta 0. OtYe... u~. ~. 1811\ CIrC\AI. " ' - No. 3. Jcorngs E. W.iIW.orr.-, MonIgorMry. lSIll CI=It, PIaot No, 4, 1'homaf. J. MellMn. Montgl;lnle!)', 15(11 CIrGUI, PIIIC6 No. S, DtYid R. iIrl'/d, MonI!jIII'IIGI'Y. le!h Circuit GeotQrt Po Ford. GadrIden. 17th CIn:uIt. ~ T. "-,,, Jf.. 0am0p0IIe. 18111 CiI'Clllt. JOlIn I!. Mo<.IirrW. ~ m. 19!t1 CIrculI, JOlIn E. E/IIIIrI, Wetumpkl. 2OIt\ Circuit Rut ... R. Smith, Jr., 00Ih0n. 21m Citcuit. I':VI~n. A. ~. j ... Brewton. 22nd CItM. I!.~ V, JO/II'ItOn, 23rd CIraIII. PIIOI No. I. 00nrIfI S. PIrie, HunIIYIIII. 23rd Circuli. PIIOI NO. 2, PrlIJi(:j( H. G....... J•. , H..-ottviIoo. 20Ith CIwII. A, I..arIgIo)\ F"I'I'H •. UIh CfI;UI. Olive, FrvOIf1d! Wood, HM'Mon. 26Ih CIrwII, ~ W. CoIIIfIII, .II., PtIInbc CI!)I. 2"" CIfCuIt. JOlIn C. OuJahO/r'l. ~ 28th a ........ E.e. Il0l. Bay tdlMtIo. :lith CIn;uit, R. ew. LaI:.,.q., ~. );lin CirwIC, W\IItIm J, lIuMtl, ptIt CI1)o, 3111 CIfCuII. W"'-rn K. HewIeI!. l\IICumI:JIL 32fId CiIcuII. Roy W. WJIIIrtma, .It., CuIIrnaII. 33rtI CIfcuII, Hervy F. Lao. III, 0.-. 3-4th CIrwh, I.\l1<o E, ~'. R"""""'Ilt, 35111 ~. JOlIn 8. Bltr... n. III . Montoe'fVll. 36Ih CircuIt TlmoIIT,r O. LIII ..., MauIton. !1111 CIrcuIr., J. TIm Ba.teln, 0peIb. Urn CIrcuIt, S",*"" M .~. $ooII~. Jgoth CifeuIt. Jtrnn M. Corder• .It.. AIt!enI.. 40Ih Circuit JolIn K. JohnIon.

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297 Iluilding Alabama's Courthouses

300 Legislative Wrap·Up

307 f\Jabamll Mediation & Arbily.llion Training

309 Opinions of the Cenernl Counsel 341

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Young Lawyers' Section

347 Recent Decisions 353 Classified Notices 357

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PRESIDENT'S PAGE BU Wado /Jaxley

s we. approac.h the end of Qne century and the bcll;inning of another A In tlliA year of lhe Alabama State n~clIl

Bar. I have debated whether to spl!nd my initial "President's Page" talking about the future dour Ilrofcssion or

Back to the Future

dlscuuing the past. I conclude that we must prepare ourrelves for the 21st cen路 tury by reOecting deeply on where we have bi:en. There is no queilioll that we, as lawyers. stand on the shou lders of giants who halle helped elevate and fine tune our state bar $0 that it is generally and consistently tecQlI;nizcd as one of the lellding bars in the nation, Over the past decade, through my servicl: as a stille oor delegate to the American fiar Association Hou~ of Delegates and as president-elect of the Alabama Stale: Bar, I have had the opportunity to meet formally and socially with repreM:ntaliws of slale. local and specially bars from all over the United States. 1l did 1'101 lake long (or me to realize that our state bar is held up as a model by our brOlher and sisler organizations in olher slales. When I speak of"giants In the legal profenion. I am nol only referring to the state bar leadership over the pasl 99 yeaTS, but also of the leadership of hr......yers in our local communities. Although the image of iaW)lets 115 a whole seems to be taking a beating from Ihe public and the media when viewed on a national basis, I believe that Ihe opposite is true in mosl Alabama cities and towns. In Dothan, lawyers generally have been among the most M

hlllhly respected leaden of the community. J remember with pride Dothan lawyers who innucnced me over the years, including J. Robut Ramsey, L. A. ~'armer, Jr., W. Guy Hardwick, H. Dwight "1c1nish. James Floyd Martin, Allo V. Lee, III, J. Theodore Jackson. and my father, Circuit Judge Keener Baxley. Although we did not know it :u 11 "mcntoring progrllm" In the Wiregrass area of Alabama Ill ihe lime, for yeaTS older laW)lers have advised and assisted younger Iilwytrs in the practice of law, You realty understand the mean. ing of "mentoring" whm you hear someone like United Siaies J)istrict Judge Myron Thompson publicly thank路 Ing reti red attorney Dwight Mclnish fo r being there 10 Oldvi5e and <ls$isl him as a young llUorney in Dottlln. The mentoring of )'Ounger IIlW)lers and the promo路 lion of professionalism must continue if we intend to seeure the respect of the public for our judicilll system, In 1968, I was admitted to practice law by lhe Supreme Court or Alabamll, Over the pasl30 yeaf$, I have witnessed a number of procedural. substantive and technological changes. We have gone (rom common law pleading to notice pleading under the Alabama !tUrfS of Civil l'rocedurt. The NIL has been abolished and the UCC t$tabli5hed to govern commercial transactions. Uniform model statutory codes are now the standard instead of the exception, In 1982, the slale bar adopted "1andalory Continuing Legal Education ("tCl.I::) rules requiring 12 houl1 ofCl.1:: in order for a lawyer to maintain a law

license from year to year. Computers have replaced the old IBM Selectric typewriters which ...-ere formerly the 5tate of the art. Photocopiers of all mnkc5, models lind S pCClJ~ are now uti· Ii:l:ed to make duplicates of briefs, plead· ings. me copies, etc., instead of carbon paper copies. Book~ are becoming obsolett for rapid access to legal research. AdW!rtising by la~rs on radio, televi · sion and billboards is no longer banned and has become widely u t ili~ed. With the advent of voice: mail. there is a 50· 50 chance of talkin/l with a live person by telephone in II m'dor law firm . Unfortunately, it apptars that the prac· tice of law in recent years Is more of II busineu than a pro:esslon. Most of these changes (especially the technolollical ones) are a welcome

relief. but some remain questionable. In IIny eW!nt, the purpose of lhe legal prefesslon essentially remains unchanged over Ule past century. A; staled in lhe preamble of the Alab:tm) Hules of Professional Conduct. "A lawyer Is a representative of cllenls, an officer of the leg,ll system and a public citbcn having special responsibil ity for the qualit)' of j ustjce.~ The officers. commit· let members and permancnt starr lead· ership of Ihe Alabama State Bar over lhe past century have placed our statc bar in lhe (orefront of organized bars throughout lhe nation. We now have the burden and ruponsibHit)' to contino ue this tradition as wt approach and enter the 21st cenlury. I intend to emphasize service and 1'H'0fessionaiism during m)' term as prtsident as well as

Why? Because of the AS!]', "To Serve the I'ublic" Video "rcsciltiition .. II complete pllckalle thai includes an aWI,rd·winning ~ight· mlnute video. speech pOints and even brochures for Ihe audience. It·s suitable (or civic "mups. Khools or any community organi%.ltion. Every local bar Msociation ha$ a cop)' of the presentation or )'QU can just call the ASB (800-354.6154) and rtquut one. Imagine the impact if Alabama lawyers across Ihe slate did just onc presentation in thei r local community. 1'hat's right •. (hHe would be ovcr 10,000 positive mcssages going out about the legal profession! And it is reall), eou)' to do •• no prior preparation is needed. Just pick up the video preuntation package and gol Even i(you still have a little 'stage fright ,' don't worry. You'll end up being as Impressed by what Alabama lawyers do 1I5 \he audience isl

It begins with you.

to promote the excellent programs available to Alabama Ia.wyers through our state bar. Additionally. I will follow the lead of past Presidents 1)~II I~Owt and Vic Loll and continue to promote the Inclusion of specialty bar groups in state bar mee tin~ Il.Ild activities. As mandatory members of a unilled inte· grated bu. we have too many common interests in areas of judicial reform, professionalism. multidisciplinary prac· lice and the administration of discipline to allow a division based upon personal lllterC5ts of specialt)' groups to threaten our profession as a whole. I look forward to serving)lOu as presi. dent and to working with the members of the Board of Rar Commissioners and the administrative staff of Ihe bar duro ing this 1999·2000 fiscal year. _

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U[){]rE LID(lJJ lB3OJJ~ YES, I volunteer to present or to hel p schedul e a presentalion or "TO SERVE THE to groups in my area. Contact me to make arrangements! NAM E _ _ __ _ _ _ _ __ P U B[~ I C"

BAR ASSOCIATION PHONE OR E·MAll _ _ _ _ _ _ __

L _____________________ _

EXECUTIVE DIRECTOR'S R EPO RT BV Keith 8, NOrllum

hree representatives of the Southern Kazakhstan i\s>ociation of Lawyers (SKAL) paid us an extended visit this pllst July. Ralhan KhobdabergcnovD, the exectllJT~!<{tI!I(i __ ••• ~ IJlJ .. <)r lll'lI utive director of I h~ association, visited Mf,""'..,..· .r;r<"lI." _ ,'Ii W IJ"l'II'1ll' with us in March. She returned to ~"..~r..M''T' Ylvtll!l , ,,'/; AI ... VJo'A ~~,.'T,(pII or lJI 1VoJ.IIl'" STA •• A!a!xJma in July with privilte illlorney ~. AlIka r Vi:meAhml :md IlIw $tudcnt lind ""':''':.- ~;: interpreter ThUlLna Chemobil. Thti;ma ~...----:.;::.......... ~ also works as a trll11slator, interpreter , ... ....--..;:.... ...-:.:%-_ .. ....... ~ and program fiSsistant with the American Bar As.sociation's CEEL! ~ -.:..~ -...:=."':.::::. ... .(Central and East European Law -,,~"",::,::: ........- .. 0:.-..... ....-.~ !nitiative). 'it-::-- ..... -.. ,,___.-.:::' Our visitOTSlkld the opportunity to -~_w l - ';'!:'T.... - - ""--::.:+: - - - :--'----...__ • attend the Alabama State Bar Annual ~--"" f.leeting in Birmingham and return , ..... .--_. 1 "" .... =::,. _ ... _. to f.lonlgomet')' to spend a week leMninR more ~I)Ollt OllTjlldicial ""--~ ... :%.. ~:.-.........::"="""" and the operations of the :;:;.,"'='..t:;.-....::"""~-:.=:'.::. .......:..:"~.. system ~ Alabama Stllie Bar. The additional ..-....,:;.":::-_01.. .... time: In f.l 01\t60mct')' illiowed ,...-'.. ~ ........... .".!!J.... ..... IWJ~ Raihan, Askar "1\d 'nlti,U1<l to have ~_'t.:: ::.:: ~-== =..:=,.~"'~'-- me:als III private home~. enjoy boat rides on the Alabama Rive:r and --~ Lake Martin and 3!k ami answer Ques·

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tlons in less (ormiil ~ u rrOu !ldi!l gs. Although there was more time during

SKAL II

this visit for informal gatherings than was the case during thei r Insl visit, there was still much for these bar leaders to obStlVC,lnd leMn. United St<ltes ~1ag illra l e

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folcPherllOII, f.lidd le Districl of Alllbamll, planned an informative program and luncheon nt the federal rour\, Our bar friends had a chance to sit in on part of 11 civil jut')' trial in Chief Judge Harold Albrillol\'l courtroom. Prior to the trial, Chief Judge Albritton took time to explain the case to our g~lests and ~rl~wer questions. Judge McPher$On also arranged for our guests to observe, as a part of a crimillill case, a mock $entencing heating. During their vi~i t to Ihe: middle district, our friends from Kn~,,~kh5tan were welcomed by many of the federal court (nmily including Judge Myron Thompson. United Stales

(far rigli/), a /(luukhslulI IJI/MItJl. shufl.'1 u luugh "#11 U, S. DI~ltk:1 (burl Judt/tt /lurolJ Albritton /J. S. lIlIrmll!,· R!!tldirry Pill ami Iw/slarll U. S. AIIOnK'Jls u!IIru Cumlll und Luuru II'rlghl.

280 !HPUMD!R 1000

Cumberland School of Law Continuing Legal Education Fall 1999 Seminars September

10 17 24

OctOber 8

15 22·23 29 November

5 II

19 D:cembcr

9 10 17 29·30

Developments and Trends in Il ealth arc L.1W 1999 Prosecuting and Dcfctlcting DUI Cases in Alabama CourtS Probate Pr:u:licc Funtbmcnrals 10th Annual Uankrupu:;:y L.1w Seminar: l3ankruplcy Fundamentals Managing The Successful Law Pract icc Today Selecting lind Influenci ng Your Jury wilh Susan E. Jon ~s Fund:uTlenlal L.1wyering Skills Y2K Litig:uion

13th Annual Workers' Compensation Seminar Choice ofElitity: Immediate and Long-Term Impl ications for Your Client Essential Advocacy Skills: The Truth, The Whole Truth, !lnd Nothing But The Truth with Stephen D, !::aslon Persuasive Legal Wriling with !even D. Stark Employment Law Update " Hot Topics" in Civill.itigation " Mobile " Hot Topics" in Civil Litigation . I3irmingham CLE By The Hour

For seminar details, visi t our Web site: hllo"/lcymberlaod.samford ,edu or ,all 1·600·666·7454 (in Birmingham, ,all 726·2391). Brochures are mailed approximately six weeks prior to semInar date. $aoIIo!o """"'.... II ... fw.l ~ IIIIIiIlIIloII ..... wtIr:omII ~ kif .... ...,.",..~ ..... _1ioAII JIIWI1IIIJ 110ft' II IIICIMdIMII . . . . . . .., !III:II, CII!I! ..... 101. 1IIIIIIiIiIy. OfIllllllNl Oftllwilc ot\gIII

Samford

Universi\y

Birntingham , Alabanul

Attorney Redding Pitt and Magistrate Judge John CIIn-oli. In addition to the visit to the federal court, our visitors wanted to return fo r iii visit to the Supreme Court and State 1.111'.' Library. M.l)' t;dge lIonon arranged for Ihem to tour the library and Judicial building. The lawyers In Kllzakhstan rtcogl"lize lhal (or the rule of law to nourish there, establishing accessible and well-maintained law libraries is eMenUal. Although there

were 00 jUry triab Kheduled at the Montgomery Circuit Coon for the week of their visit, Coull Administrator Bob Merrlll llrranged for our Ihree guests to obsel"\le district court proceedings before Judge !..ynn Bright and to learn about mediation, which is being offered in the district court of Montgomety. When our Kazakhstan friends visited in March, their schedule was 50 full with formally planned activities that there was little time for social activities. This time.

whom will you trust with your

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however. our visitors' schedule Included frequent opportunities to visit in homes and meet a variety of people. Sun n Andrei and Liura CallowI)' of the slate bar staff h()$ted our guesu in thei r homes. l.aura also Imallled for Raihlln, Askar and 'latiana to ride a pontoon boat (11"1 the Alal).,ma itiw:r and to visilsew:ral of Montgomery's hisloricallandmarks. Other stale bar siaff who volunteered their lime for tours or 100Ciai activities were Judy Keegan, Uncia Lund, Ed Patterson. and Kim Olh"tr Wud. ~Iootgomery attorney Jim Dtbartldaben invited our friends to his I..:Ike Martin home for boating and swimming atld /I barbecue. Jim had traveled to 51. Petersburg, itu$$ia several years ago shortly after the fall of the "Iron Curtain" and the breakup o( the Soviet Union. The vi ~l t culminated with the signing of a "Memorandum of Understanding" between 5KAL and the Alabama State Bar. This memorandum fo rma li~es thc relationship between our two bars and our e((orlS to help SKAL grow in the years to come as a stNice organitlltion (or the legal profession. •

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REMARKS OF' FRED

D. GRAY

Pepperdine University School of Law Commencement Convocation Receipl of Iionorary Doctor of Laws Degree Malibu, California ' May 21. 1999

1'1

r. lIemill1dez,

Pruldcnl Davenport. Dt:Jn Lynn. members

of the Boord of neQenL~, gradu· aie$, fellow ~lesls. ladies and

gentlemen: 1 am honored. humbled ;md elated by the honor you have bestowed upon me today. [t IS n long WilY from Wl\5hington Park, a ghetto of Nontgomery, Alabama whul! I was born. and 1\.lSkcgu:. Allbama, within Ihe Black lIelt oflhal state, when I haw: livt1l for a substantial part of my adult lift. to Ilepperdine University In Malibu, California. neslled Oelwttn the Pacific O<:can Hnd t.te majestic moun· tains. l am Illlmbly grateful th"t

you have seell fit to honor me with the hlAhest honor of this

prestiltiou5 ~iversity. If [ have been able to 1\551s1 in dC5lroyin~ the ....'alls of se{l-

,.~ O. CNjI

reglltion in uansportal1on. voter reglstrUlM, education. health care with respect to the infamous 1\ukegee Syphilis Study, and In other arens. it is because r had a Christian mother and a Christian wife for 40 yellu. I only wish they could be here to share this occasion. It has been the lawsuits thllt rellily changed conditions in the South and in this naLlon. The demonstrations were important in getting mass pllrticipaLion lind public attention. However, "it was the courts' decisions that made the law, created and interpreted the laws, and gave the rights which made it possible for all Americans to enjoy the riilhl~ and privileges which \\'ere wrillen in our Constitution many years all:O:' Un(ortunatcll, historian$, for the most pllrt, have written lawyers Ollt of the Civil Rights Movement. So, today. I am elated to accept this award on behalf of af/fhl! lawl/ers of the Ciuil Rights [l/o/lUment who

worked hllTd to chanile the .social and racial landscape of this country. I also humbly accept thlJ award on behalf of the unSling heroes, mally o( whom have died and others who yet survive, whose names never appear in print; whose faces never appear on television and, for the mQst part, are not known to (:Xist. J( I were to i\jk, "00 )'ou know Claudette Colvin?M wry few hands would go up. In March 1955, I represented Claudette Colvin in MontgomeT)', Alabama. At that time she was a 15.year-old African I\meriClIIl girl arrested (or refusing to give UI) her Jellt to a white man. nine months before r-1r5. nosa Parks was arrested. Claudette now livu in Bronx. New York. She gave the nloral couragt 10 all of us. including Mrs. Parks, (or whom legislation waS passed II few weeks ago awarding her the Conll:ressional Gold 1>1edal. I( there had been no Claudette Colvin, there may very well have been no Mrs. n05<1 Parks as we know her today, no Montgomery Ilu ~ Boycott as it hlter developed lind no M!lrtin Luther Kln~, Jr. as he 5ubse(]uently became a world lellder Finally, [ say to these outstanding grilduates, you have a tremendous opportunity. You are blessed with wisdom, knowledge Iltld educatiOn. ~'ind your niche in life. Find the wronJl$ that exist lind seek to correct them. Work in the impoverished areas and seck to make them boom. Use your law degree to make a difference. • fred I). CraM is (1 /9$4 admiftee to filii Alabama Statl! 11(lr alJd /Jf(lcficl!s wilh fhe 1l.ts~·l!gfNJ finn of Gray, U1I1lJli)fd, Sall/', McG'owall, eray, & NuflwlIs(JII.

BAR BRIEFS

• The Halt/win County Bu Au odaUon elected new officers at il$ annual meeting (or the 1999·2(I()O term, Tht)' 11ft: prt$id~nt, W. neatty I)earwn or Daphne: vice.president, Daniel C.

lJIackbum of 13.1YHinctte: anti secretary·treasurer, Oliver J. Latour, Jr.. of Iialey,

• Birminghmll attorney Mark While llnd retired

Judge Rlchprd lIolmc8 of f.lonlgomcry ~re honored at the 1999 Alab..lma St.lle • The [999·2000 officers of the Thllapoou County Bar

llar Annual r.lcdinA

Aasodatlon are!

in Birmingham (or

their contributions to turning around neglltive judicial campaigns. Tht

JUt/gll Nidrord IloIm... (Cl'tll....) mill Murlr II'hilot (right) ....'U1f'irl/l /Ill"'''' {rom

1'1<' IMI

honor«s were tach presented wilh a Commissioners' Award (or helping persuade candidates (or local and state judicial office.~ to run fair ilnd non-nclMive campaigns during the 1996 eledion period. \\"hile served as chair of the 12·membtr oversight committee of Ihe Alabama Supreme Court's Standing Committee on Rules of Conduct and Canons of Judicial Ethics. Judge Holmes. retired from the court of civilllPpeals, ser'Ved as vice·chair. The: committee field ed oyer 350 inquiries during the elec· tion cycle and, as II unified voice. bolstered both the public's respect and the candidnle~·. • Jusl.ice lI ugh I\laddo}(. stnior Msocinte justice of the Supreme Court of Alilb;utHL. has been elected to the Boord of Trusttts of the American Inns of Court Foundhtioll. The American Inns of Court. composed of over 20,000 members In 48 stlltes and the District ofColi.. mbia. ellllmine iuues relnted 10 ethics. profcnionai conduct and civility In the field of law. Currently. there are more Jw,1~"'6ddtxt than 300 Inns throughout the United States. Justice Maddox has long been a leader within the American Inns of Court movement. lie founded and is a pa5t president of the Inn that recently was renanl(~d in his honor. the HUAh Maddox American Inn of Court of ~Ion t gomery. and has played a major role in the tslablishment of numerous olher Inns throughout Alabama.

President: Mark Allen T\'eadwell. III Vice·President: nobin Iteynolds Stcretaryfl'l'easurer: Catherine Honcus • The National Board of 1'I'ial Advocacy recently announced that Robert F. Prince ofTu scaloo5a has successfully achieved

board certification as a civil trial advocate throlJsh NBTA. Founded in 1977, lhe National Boord of Trial Advocacy filled a substantial voId in the legal profession by c r~ati ng the first a\lorney cert ification program. • Joseph ~I . Flrley, coullsel to B.l1ch & Bingham. U.P. recently was presented with Ihe Henry DeWolf Smyth Nuclear Statesman Award. This award. jointly established in 1972 by the American Nuclear Society and the Atomic Industrial FOTlnll. hM become a si"nificant annual tradition and repre· sents recognition of 1m individual who hilS ~iven outstanding service in developing and guiding the commercial applications of nuclelLTenergy. • The 1999 Alabama State Bar Locat Bar Award of Achievement. which recognizes local b.1r associations for their outstanding contributions to their COJ'I'I munitks. was pre5\!ntcd to the J'l iorgltl County Ib r ASlociatlon at the ASB Annual J'l leeting in 13irmingtmm. Led by President J. Glynn Tubb of the fi rm of Eyster, Key, 1\.ibb, Weaver & nOIIl. the t>1C8A participated in the Partners in Education program sponsored by the ASI:l. The state bar staff conducted II training seminar for eillhth.grade teachers. principals and 36 ll1wytrs from the MC!)A. beginning in October 1998. E;ach lawytr laught desi"nated subjccl$ on a minimum of four OCCllsions during the academic year.

The culminatina event for the Partnership Program ....'.., held in conjunction with Law I)..y 1999. when approximately 600 eighth-grade students attended oral arAuments before the SUllreme Court of Alabllma, held in the Decatur 1-liAh School auditorium. The MCIlA also Invited 400 12th-grade students from nrea high 1(:hools, thereby exposing 1.200 students to an introductory course on the justice system a~ it occurs at the appellate court lev~ 1. • Alabama Supreme Court Chle( JUl lice IJerry llooper. i\u()( I ~ l t Justice Harold Set. ASB Past President Vic Lott, Birmingham attorney Carol Ann Smith , and Kellh

Norman, ASOeKecutive director, recently attended the National Conference on Public Thust and Confidence in the Judicial System in Washington, I).C. Five hundred leaders from state and fedt'Tal courts. the bar, the ChI«Julli« media and ci titCl1S' groups convened in this I'm"~ 1/oopItr first -ever conference addressing the serious issue of public trust in the Justice system. The conferees addressed five (Iuestions: How serious is the overall issue of pubi ic trust? What are the critical issues affecting public trust? What are the most effective strMegies to deal with Ihe critical issues? What are the barriers to effectuating these strategies? What actions (:3n be taken at the

nationalltllelto help SUTmount the barriers and support effective strategy implementation? FortY-$ix statu senl teams to the conference as did Guam and Puerto nico. Thou addressing the conl'k 1.01/ IM/" Nonnurl ference and leading the workshops included United States Chief Justice William Rehnquist. Ilrofe5sor Charles Oglet ree of Harvard Law School, r--1ario Cuomo. former governor of New York, and A5sociate Supreme COllrt JU5tice Sandra Day O'Connor.

•

New York University School of Law recently honored al\lmnus United States m l trlct Court Judge Sam C. I'olnter, Jr. wilh a dinner in New York, I'olnter. presiding federal judge fo r the Northern District of Alabama, has been on the bench for 29 years. He has earned II nationill reputation with his handling o( complex legal cases, ~lIch as the nationally consolidated silicone breast implant litigation lhat he has over!ecn since 1992.

•

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20~

MEMORIALS Edwin Cary Page. Jr. he AJabam.1 T State Har Ios\ one of its most distinguished ~nd

senior members on J:muotry 21, 1999, upon the

death of Edwin Cary Page. Jr. of

Evergreen, Hr. Page, a scion of many prominent pioneer families, W;1S born in Evergreen on October 12, 1906, the son of Edwin C. Page. Sr, and Jessie Cleere PilJjC, His fiJlher was a noted triallawyeTpracticing cxtcl1sivdy throughout soulh Alabama lind In 191 t llppeared in the Circuit Court of Wayne County, Michigan a5 lead

counsel in a C.1Se Involving title to many th ousand !leres of IlInd in Monroe lind

Conecuh counties. whose owners1ived in Michigan, His mother. Jessie Cleere Page, was a native of nussel1ville, Alabama, who met her husband while they both were students al the University in 1901 . Mr. I'al:!e attended public schools in I'..'vergreen and gradu.lted from Ihe State Secondnry Agricultl.ll'lll School for the 2nd Congressional District located <It tlklt time in Ewrgreen. lie entered the University in the f",11 of 1923 ",t tht age of 16 and gr<ldu. ",ted In 1928. having received both BAlind LLB degrees. Admitted to the lxir shortly after his graduation and spurning several offers to practice with attorneys in Jasper, Al<1b;\rna and I'tnsacola, ~-Iorid;}, he opened his office in ~veTJtreen later lhe same ~ar where he q\lickly became known as n fine I~~r. l'os.~5.~d of <L keen <Lnd <lnalytkal mind. he was able to c$tablish 1\ repul1ltion for giving iIOUnd legal <ldvice. During his time of practice from 1928 through 1999. a tenure inter· rul)led only by his service in the United St.ltes Navy during World War II and a short period oHime when he practiced law with the late BK Jones, he served iI5 county solicitor of Conecuh County from 193<l throuRh 1959. <l$ b.1r commissioner of the AI"b.lma Statc J3<,r from 1965 Ulrough 1981. lIS chairnllll'l of Lhe 81 '"

'M,ii,Ii" i i.

TMA/"/>t>,,,,,""','1/#

CQnecuh County [)tmOCl'll.tic Exttutivt Committee for sevel'll.l years. and as an elder ill U\e Evtrgrttn Presbyterill(! Church and a Rotarian. He was an excel· lent source of information on the land and history of Conecuh County. Much of Nr. rage's library and office furnishings are housed in the ~10nroe County ~1useum, In Monroeville, Alab.1lW. Mr. Palte i5 survived by one daughter. Cal)' Page, and five grandchildren Of l~airfax, Virglnia.l'ledeceasing him were his wife; a daughter. Mary Edward I lllnscn; h i~ l\IIren t~; llI1d two broU,us. Samuel Wilson f'age and Perryman Page. liis colleagues in the bench and bar Hnd his many (riends roourn his passing and the PlIssing of an era in the legal community of this section of the State. - Richart! D.C. Nix. president Conecuh ellUnt)' Dar Association

life: and earned the respect of his fe llow lawyers and all who knew him: and Whereas, Don Alan Howard is sur· vived by his wife. Becky: three daugh· ters, Ashley, u,uren and Kitty: a brother. David Howard, of Cerm~ntown. Tennessee; and his parents. Bud and Ann Howard, of Huntsville, Alab<n'na; lInd WherCiIl;, OQn Alan I-Ioward was a val· ued <lnd rC5ptctcd friend. and a distin· gulshed d lizCrl of thi~ CClTllllunlty: and it Is in grateful memory and appreciation of his contributions to this community. to his profession. and to thiJ association that this resolution be adopted: and Whereas, this association desires to convey to his family Iha: we have also lost a member of our family, a brother: that we share their grief and 10$5; and thal Oon's memol)' will last foreve r in ou r hearts ~nd minds. - Robert C, CamnlOns, pNsldenl lIunl.vilft·Mlldfson Cou nt)' Hilt Association

Don Alan Howard hereas. the Huntsville·Madison W County Bar Association comes together to pay tribute to Don Alan ['Ioward, who ptlS$Ed away on May 29, 1999; and, Wh~reas. DQn Alan Howard Wall 001'1'1 in NiI5hville. Tennessee; and attended undergradu<lte !iChool ill Auburn UniverSity. ilnd Lhe Univtrslty of Alnroma School of u,w in Tuscaloosa. Alab.1ma. graduating with a Juris Doctor degree; and w:t,1 admitted to U,e Alabama State Bar in 1979; and Whereas. Don Abn ]'Ioward began his legal career as a contract specialist with the United States Covernment: then entered the private practice of I<lw in Huntsvi lle, Alabnrnl; he was admitted 10 practice before the courts of this state, Ihe Unil~d SIllies Court of APPClll$. lind the Supreme Court of the United StDles; and was a partner in the firm of Iloward & Aldridge in Huntsville, ~1 adison County. Alabama. from 1955 until his untimely death; and Whereas. Don AI~n Howard established a reputation as a person of inteltrity and diRnity, ilnd distinguished himself ill all aspects of community and profession<ll

Judge Cecil Howard Strawbridge udgc Cecil Howard Strawbridge. I'oIho presided over the 24th Judicial Circuit for nearly a Quarter of a centul)', died June 30 in his hometown of Vernon after a lengthy ill· n~55. I-It Will; 93. "He Will; a splendid judge," said long. time Fayette attorney Louis r-ioore. "I suececdt'd him M circuil solicitor (now dis· trlct attorney) when he became circuit judge in 1953. He "'as very help(ul to me:' Moore said Strawbridge had a remarkable ability to remember names and (aces. "He knew hlst about evcl)'body in the circui\." ~1oore said. lIe added that S trawb r id~e loved gospel mu~ic and sponsored an annual singing [event) in Lamar County.

Lamar Count~ District Judge Ed Go$<!. called Strawbridge "1IlIiant in our pro· fession ,N NUe had a heart for poor people,N Cosa said, "He I)(:liew:d in equal justice and making sure it was available to all,N Strawbridlle was a gradullte of L.1mar County High School and received his undergraduate dcgrte from the University of Alabama in 1929, Judge Strawbridge began his legal carefr aner receiving his law dcgr~'C from the University of Alabama School of Law in 1931. He entered private prnctice in Vernon and later was appoint. ed county attomey. A I<M: of I)OJilic$ prompted him to run for district altorney for the 24th Judicial Circuit, which comprises F"Yette, Lamar and Pickens counties in 1942. After his election, he volunteered for the Air Force and served until the end of World War II. He returned to the circuit after his military service and twice was re·elected district attorney. In 1952, he ran fo r circuit Judlle and won. Judge Strawbridge began that six· ~ar term in January 1953 and would bt re·elected to three more six·~ellr terms before he reached the state's mandator')' retirement at age 70. Judge Strllwbridge continued 10 serve as 5upernumerar')' judge to different counties in the state. l ie also served as vice·president and president of the Alabama Circuit Judges Association in 1967·68, In all, Judge StrawbridJle held public offices for 45 ~ears.

part of a long and distinguished career in the legal field, Cumberland School of Law presented Judge Strawbridge with a "Cumberland Order of Jurisprudence Dfgru~ in 1980. He also received a Certificate of Completion at the National Judicia! College in Reno, Nevada, in !980. Judge Strawbridge is also listed in Who's Who In the South, 1967·68; Who's Who in America, 1965: 11enonalities of the South. 1970: and Community Leaders of America. 1972. In It public service career that spanned several decades, Judge Strawbridge served in numerou5llffllill· tions. Judge Strawbridge served I1S the chairnlan of the Board ()f Directors of the Lamar County i10spilal while it was bting built in 1952. He has also been a member of the Board of Directors of the First State Bar for over 25 ~ears, In addition, Judge Strawbridge was a char· ter member of the Vcrn(ln !(iwanis Club, He WllJl selected "Nan of the Year" b~ the Vernon Lions Club In 1984 and was appointed as a member of the ~Al1ianct Against Drugs~ in 1989. Additionall~, he was president of the Young Democratic Club in 1934 and again in 1935. Judge Str1lwbridge has held memberships in the American Leaion, the Jasl>er Royal Arch Masons Chapler 118, Vernon F&Afol of Alabama Lodge 1tJ89, Birmingham Metro York Rite Ikldies No. 76 RAM" and Zamora1'emple in Binninghwn. Judge Strawbridge was also A$

inducted into OmICTOT\ Della K.1Ppa at the University of Alabama's 1!J9.t Honors I)ay. Most recentl~. Judge Strawbridge was honored with the Award d Gold for his 5O-~ear membership with the VernOTl 1>lason!c I.odge #389, I-Ie was a member of the Vernon First United Methodist Church where he served on tile Administrative Council for many ~ears. Judge Strawbridge was very dedicated to his family. He is survived b~ his wife of 58 ~ars, Auten!e Rector Strawbridge of Vernon: son Ronald Howard Strawbridge, Sr. and daughter·ln· law Pearl Jackson SIr&wbridge of Vernon: dausNcr Shi rley Strawbridge Lllllmer and son-in-law Phillip Car')'Latimer. Sr. of Columbus, Georgia: five grandchildren, Caroline Strawbridge Hains and husband David Edwin Rains of 'JUKaloosa; nonald Howard Strawbridge, Jr. lind wife Audrey Oswalt Strawbridge of I-Ioovl':r: EIi1.abeth Lellth Latimer of Atlanta, Georgia; Patricia Sarah Latimer of Auburn: Phillip Car')' Latimer, Jr. o( Columbus; sister Hazel Allen of Daytona Beach. ,"'lorida; and several nieees and nephews. The legal community suffered 11 great Ion with the passing of Judge Cecil Iloward Str1lwbridge, an outstanding cititen and judJje who played in Impor. tant part in setting up the present judicial system in the state of Alabama, - R(>printed in purt from the Puyette County Times Journal, July 7, 1999

Bradley, lee Carrington, Jr. mnningham Mlllill~: 1921 Died: May /8, /999

Chapman, John lIenry CIA/man Mmlttcd: 19.10 Died: April J/, 1999

Fanner, Jamu Uubut, Jr. Dothan Admitted: /966 Died: Nay 28. /999

lJuliock, Loren Jay Noooor At/mitled: 196'9 Died: Narch 3/, /999

Chason, Cecil Gavin Poley Acimittctl: 1940 Died: April 17, 1999

Formby. John Rt\.'el, Jr. W(!tumpka

Campbell, Orville mnningham Admilled: 1976 Died: Jllrre /7, 1999

Clinton, Joseph Everett Binninghum

AIlmiltl-'(/: 195/ Dietl: I)ecf.!mlx!r 22, 1998

Admittl-'(I: 1972 Died: Dea!moor 21, /998

Grttn, Hlake A. Dothan Admitred: 1985 Died: July 4, 1999

Smith, Elno, Jr. Monrgom(!f'Y

Admilted: 1963 Died: July 3, /999

Stark, Mary Elder Birmin.llham Admitted: 1931 Died: July /4, 1999 Sll'lIwbridge, Cecil lIowaN V""""

Admitted: 1931 Dil-'(}: June 30, 1999

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ABOUT MEMBERS, AMONG FIRMS

Due to the huge increase in notices for "/\bout Members, Among I,'irms," TIItl lIfalxtwa u/wl/ltr wiUno longer publish

address changes (or t.rnu or Ind ividu.~1 practices. II will continue to publish ,mnOUllCernents 01 the for!Tl3lioo of new firms or Ihe opening of solo practices, as \\'cll as the additi(m of new associates or partners. Please continue \0 send in address changes to the membership dC[l.1rtmcllt of the Al~balTl" State Bar.

Patrlcia Kelley /llartin. I).C. announces the opening of her office at 2090 Columbiana Road. Suile 2000, Birminghllfll. 35216. Phone (205) 823· 4552. Nalhanlel IIansrord announces that he is now serving as president of North Ceorgla College and State Uni\'euity. His mailing address Is Office of the President, Price M emo r i~1 J Ib1l, Norlh Georgia College & State University, Dbhlonega. Ceorgia, 30597. Phone (706) 864-1993.

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Dryan S. nlackwell announces lhe Ol)ening of his office at Charles Woods Building, 285 N. FO$ler Street, Suite 312. P.O. Box 2007. Doth,ln 36302.

Among Firm. Pearson, Cummins & Ibrt. 1.I.e. announces that Michelle A. MeUNr has

become associllled with the firm. The mailing addreu is P.O. Ilox 7980, Sp.1nish Fort. :16577. Phone (33-t) 626-2772. Jim I.. I)&!UllnleJaben and Dorolhy Norwood annO\Jm;e Ihat ~tUton J. West!')' has joined Ihe firm which will now be known IlS I)&!Uanklal;len, No,",,'ood & Westl)', I~C. Offices are local at 1505 ft11ldi!l()n Avenue. t-lontgomery, 36107. Phone (:J.14) 265-9306.

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Laurie Brock announces !hllt she has been accepted as a postulant of the ~:piscopal Diocese of the Central Culf Coast in the process toward ordination in the F.piscopal Church as 11 priest. She will begin the Hasler of Diyinity pro· grl1m allhe Cener1l1 Theological Seminary In New York City in Seplember 1999. DaYld R. •' n!l!man announces the opening of his oft1ce al 610 Guadalupe Street. Austin. Tew 78701 -2926. 1II10ne (5 12) 236·0333.

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Drane & Associates Carter H. Drane

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1983, has been named First Secretary and Consul to the American Embau)' in London, Sielner, Crum & Hnki:r announces the continuation of the practice by the name of Sieillllr-Cru m, IJ)'ar8 & !'Ilain, P,C" effective July I , 1999. Omces are located in "lontgomery and Anniston, Kenyan R. Brown announces that he is now 5e l'\'in~ as counsel 10 the Select Committee on Ethics, United Stales Se nlll~ . His mailing addreu is United Stales Senate, Select Committee on Elhics, Hart Senale Omce IJuildinlj, Room 220, Second and Con$titution Avenue, Northeast. Washington, n.C.. 205 10-6425. Phone (2021 224-298 1. Tim IIlortan. district attorney for the 23rd Judicial Circuil.announces that Angela Hedmond Debra has jOillCd hi$ staff as assislant districl llitorney. child support divisiorl, Offices are localed at 200 West Side SqulIre, Suite 912. liunl$ville, 35801. Phone (2561532- 153 1. Jill VerdC)'efl Deer recently joined Uayer Propertlu M lIice-llre~ i(Jc!"IL of dellelopment and general counsel. Omees are located at 2100 16th Allenue, South. Suite III , Birmingham. 35205. Phone (205) 939·3 111. 11111. lilli, Carter, Fl1Inco, Cole & Hlack. I'.C. announces that Elizabeth Urann ~n Carter has become a member nnd I~ rlka Perrone Thtul1l has joined the fi rm as an associate. Omces are located "'t 425 S. I)crry Street , "Ionlgomery, 36104. The mailing address is P.O. Box 11 6. f\-1 Qntgomery, 36101. Phone (334) 8.14-7600. Lange. Simpson , RoblnJon & S()l1I eTVi ll ~ announces that William I" Waudby h<ls i)ecQrnc a partner wit h the firm. Eugenia lIofalllrllann Mullins h~s joined liSQf coulISI!I 11l1d Valerlt T. KI. or, Todd M_ IUgne)'. J. Eric Miles, Derek AtchilOn. and Jacquelyn A. Gonzalu /\alit become associated with the firm. Offices are located in BirminAham. Huntsvi lle, "lonlgomery :md Anniston. Phone 800-239-4999. SRdler, Sullivan, Sharp & Van 'fla8el. I'.C. announces the change of Ihe firm name to Sadlrr Sulll\'.n. P.C. The firm also ,mnounC($ that Marc C. D.wsey hIlS become associated wit h the firm. o mcn are l oc~ted ttl 2500 SouthT'ru$1

TOWi!r. 420 N. 20t, $tretl. Birmingham. 35203-5203. Phone (205) 326-4166. Oe rkowit~, Ldtkovltl. hom & Kushner ;mnounce$ lhat I.ell T. ClanlOll and Andrew n. Chamblen halle become associated wilh Ihe firm. Offices :.re located at 1600 SoulhTt-ust Tower, 420 N, 20lh Slreet. Birmingh:.m, 35203. Phone (2051 328·0480. Walter B. Calion, Michael A. Rulland and John 1'. lIaygood anllOunce the fo rmation of Calton. ifutlalld & lIaygood, LLC with offices located hl312 E. Broad Street. Eufaula. 36027. Phone (334) 687-2407. Con. langy. BrOOks & Smith. LLC announces that Danl L. Thnaher hll$ become a partner in the fi rm, Omces are located at 1901 6th Allenue. North. Suite 41 0, fjjrmin~ ham , 35203, Phone (205) 252-9321. Wainwright & l'ope, II.C. announces lhat Sln'Cn T. 1'IcNeeldn ha5 joined the finn. Offices are Ioc;,ted at Th-'O "lelrOj)lcx ])rive. Suite 305. Bimlingh..1m. 35209. C. AI~n Burdette announces the formation of Burdette & Uurdctte, P.C. with his sister, L. IJrook. Burdette. Offices are located at 1930 Edll.'/ITds I.ake ROlId, Suite 126, Birmingham, 35235. I)hone (205) 661 -1800. Cltr, AJrord, Clauaen & IIlcOonald. LLC announces that Jean III. I'owllr. has become a partner wi lh the firm nnd thaI 111 , LliuNn Lem mon, Thomu III, Itockwell and Chriltlna !'II. Adcock have joined lhe firm as as~ial e5, lkaslC)'. WlllOn. Allen, Crow & IIlelh\in. p.e. annOllllces thai Hobert L. Pillmlln has become a sh..lreholder of the firm and th"l O~na C. Thunton. Scar\elle /II , Thill,)" J. Mark t:lllllchan, Kendllil C. OunllOn, Scoll T. McArdle, Cllnlon C. Caner, TIeman W.l.uck. Ill. lind Ka~n IH !'Ilualin rul\'C btcome associated with the finn. The finn namt tw been changed to 8caalC)', Allen. Crow. Methvin. Ponis & IIU1es, P.C. Offices Me located at 218 Commerce Street. Montgomery, 36103. i'hone (334) 269-2343. Allyson C. Pearce and AndNw Bliiley announce the fo rmation of Pearce &: Balle),. 1.I,P. Offices are located at 222 S. AIslon St reet, Foley, 36536. Phone (33<1) 97 1-2676 or 1·877-I.ATEI.AW,

lIender &: A.IIboola. LLC announces 11\.11 Vicki Gayle Ondley has joined the firm and the firm namt has changed to O('nder, Agboola & Bndle)" 1.I,C. Offices are IOCllled at 711 N, 18th Si reet. I1irnlingham, 35203. Phone (2051324·2 120, W. Stanlll)' Gamer and W. Stanley Climer, Jr, announce the formation of Gamer & Gamer, LLC. Offices are located at lOOA N. Union Avenue, Ozark. 36361, Phone (334) 774-95 11 , Carr. AlllAon. Pugh, Iloward, Oll\'er & Sluon. P.C. announces thnt Caroline T. 1'l')'Or has joined Ihe firm and will practice in the Mobile o{fice. O{fices are also locat~d in Birmingham and Florence. OgletNe, Deakin., Nash. Smoak & Stewart. I'.C. ~nno uncu that Bert J, Nlano and I'aul O. Woodall, Jr. have become associates of the firm. Offic~s are located at Suile 1900, SouthTl'ust Tower, 420 N. 20th St r~et. Birmingham. 35203. Phont' (205) 328-1900. Bond, Ootu, Thornton & Carlson, P.C. announcC$ thilt David S. Clark ha~ become associated wilh the firm. Offb:§ lire iocllled at 67 1 S. Perry Sireet. Suite 503, Montgomery, 36104. Phone (334) 264-3363, C.banlaa, Johnston, Gardner. Dumaa & O'Nelll announces that Nlchllel E. Turner has become lin associate with the fi rm. Omces are located in Blrmi nJlham and Mobil ~. Leitman, Siegal & Payne, I'.C. announces that R. Link Loegler has become as..sociated with the fi rm, Offices are located at 600 N. 20th Slr~et. Suite 400, BirminAham, 35203. Phone (205) 25 1·5900. Norman. f.'lIztlatrlck, Wood &: Kendrkk ttnnounces Ih~1 Celesle K. Poleat ha.s becOIm an a.ssociate wilh the firm. Offices are located al Liberty National Building, Suilt 1500.2001 Third Avt'nue, South, Brrmingham, 35233, I'hone (205) 328·6643, Normlln J. Gille. Jr. and Jcf(I"ilY N. Gale announce the formation of Gale & Glle. I'.C. Omcu are 1000ted at 917 Western America Circle. Suite 205, Mobile, 36609. Phone (334) 460-0400. Samford. Den80n. lIonley & I~ettey announces that Emil F. Wright. Jr. has

joined the firm as an associate and Jlmes E. Bridgu. III has joined as II partner. The firm's new n:ame will be SllIIrord. Denson, Uor. ley. Pettey & Urldgu, Offices bre located al 709 Avenue A, P.O. Box 2345, Opelika. 36803·2345, Phone (334) 745·3504. Lewis, Bl'lIckln & Flowers announces the change of the firm name to Lewis, Brackin. Flowert & Hall, Offices are located OIL 265 W. t>lain Street, Dothan. 36301. Phone (334) 792·5157.

Robert I'. Reynolds. P.C, announces thai RlChel L. \Vebt.er has joined the firm as II.n associll.te in the Thscaloosa office, Offices are located In Thscaloosa and Huntsville. Phone (256) 534·6789. Cordon, Lathllm &: Bunte announces Ihlll Martin E, Burke hM be<:ome woc]· ated with the firm, Offices are loclI.ted II.t 2105 3rd Avtnue. North, Birmingham. 35203·33 14 . Phone (205) 252·8838. Burge•• &: lIale u.c and Lamar. Miller & Norrla announce their mefller. with the new firm name o( i..amar, Uurgeu. Hale, MUler, Norris & Feldman, '~C. Office$ are ioc.1ted al 300 Financial Center. 505 20th Street, North. Birmingham, 35203. Phone

12051326·2945. Dempsey, Sleed, Stewart &: Keever. announces the change of its name to DempsI!)'. Stero & Slcwllrt. ",C. Q((iees are loc.1ted ;It 100 l~iverPoinl Corporate Center, Suite 205, Binninlthllm, 35243. Phone (205) 970-()()3.I. J~ C.

JOAeph A. Morria, Tnt)' W. Cary and Stewn O. Fiseher announce the forma· tion of Morrla, CII'Y &:: FIKher, 1.1£. Offices are located all70 E. Main Street, Dolhan. 36301. I'hone (334) 792-1420. \Val, ton. Wells, Andenon &:: lIalnl, 1.1.1' announces that Jen)' Du n IlIllman has btcome a partner in the firm and thllt Alan fil. Warlleld, Bel\lamln E. Waller and Tncy H. Bnuchllmp have become assoc.illled with the finn, ffices are located at Financ.al Center, 505 20th Street. North. Suite 500, IJirmingham, 35203. Phone (205) 25 1·9600. Janeclcy. Newell, Polls, Wlllon. Smith &:: Millerton, P.C. announces that Jamu W. Kl11lon and Bel\lamin II. Albritton have become members or the firm lind lIarry V. Satterwhite, Edwud

P. ROWi n and C. Mark Erwin have become Il$sociated with the firm. The firm 's name has been changed to Janecky Newell, I'.C. Offices tire located in Mobile, Pensacola and Blrmlnghtlm. "rice Law Firm, P,C. announces that George O. Flowers hll$ Jolned the firm as ,In associate. omcn lITe located at 217 nandolph Avenue, lIuntsvUle. 35801. Phone (256) 536·6000. Wl11lam II . Robertson. r.ul W. Brun. on . Jr. and Gary R. New announce the fo rmation of Robertson, Brun. on & New LLC. Offices are located In Clayton and Eufaulil, Arthur F. File, III and William J. MllIer announce the formation of File &:: Ml11llr. U,C, Offices are located 81400 SoulhTtu$t Bank Buildin", Anniston, 36201. l'hone (256) 23 1·9330. Lucas. Alvl" Wuh &:: l'elwlY, !',C. announces that D. Bruc~ Petway has become a shareholder with the firm and that Kenneth D. Cn,\,u has become U50Ciated with the firm. Offices are located in Birmingham, Sheffield and Mobile. •

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~ul.lmJali,m

Houston County

ouston County W<lS the: 67th and flnal county created in Alabama. It also has the disti!lttiorl of being the Orlly county created in the 20th Century. The Constitution of 1901 provided for the esL.lblishment of tlouslon County in Section 39 which leads, "Ihat out of the cOlmties of Henry, Dale, !lnd Ceneva, 11 new county of le55tl\an 600 square miles may be formed under the provi· siorl! of thi§ article, ~o 1l$ to l cav~ said counties of Henry, Dale, and Geneva with not less than 500 square mnes each." The legislatu re created lhe new county on f'ebrualY 9, 1903 and named it for Governor and Senalor George S. Houston of Limestone County. George Smith Houston, a distant kinsman of Sam Houston of Texas farne, was born in Tennessee on January 17, ISII. The Iiouston family moved to Lauderdale Count}'. Alabama in 182 1. George was educated at the Lauderdale County Academy and attended law school in Kentucky. He returned to Alabama in 183 1 and was admitted to

Houston County Established: 1901

1'he following continues a histor.1I ofAlabama's county courthousestheir orlgins and some orlhe people who contributed to fheir growth. If gou have any photographs of ear(1/ or presC!nt collrthouses, please for-

ward them to; Samuel A. Rumore, Jr.. Miglionico & Rumore. 1230 Brown Marx '!bwer, Birmingham,

Alahoma 35203. 3 00

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the bar at age 20, He was elected to the stat!!: legislature: in 18.12 and served as

district solicitor in Limestone County from 183710 1841. In 1841, at the age or30, Houston

was elected to the first of nine terms in the United States Congress. In 1849, after serving (our terms. he ran for the United Stales Senate, but lost. He r~lurn~d tl) his house $£at in 1851 for five more terms, In 1861, Houston, together with the other Alabama congressmen, resigned from the Ilous~ of Representatives upon the outbreak of the Civil War, He drat'ted the Alabama delegation's withdrawal statement to the Speaker of the House, ThrOU.llhout his political career, Houston was a study in contrasts, He OPPOM:d secession and the dlXtrine of nullification. Still, once Alabama seceded, he resigned (r(lm COr1grc5~. After resigning (rom Congress, he refused to fight in the Confederate Army. But, he also refused to take an oath of alte· .IIiance to the United States. His support

of the Confederate government cost him a seat in the United Slates Senate in 1865 when CongreM refused to rec· ognh..e his election. He remained popular in Alabama and was elected governor in 1874 and re·elected in 1876. Finally, in 1878, he was ele(ted to the Senate again and this lime urvtd until his death on December 31. 1879. Houston i$ remembered as a conservative governor who ended the Reconstruction era in Alabama.. Among the highlightJ of hi5terms in omu were the Alabama Constitutional Con...ention of 1875. the reorgal1i1..ation of the public Khool sy~tem. the establishment of the Alabama Slate Board of Health, and the crution of the st.~tt·$ 66th county. Cullman County. In 1877. Twenty-six years later, the state's 67th county was created and named in his honor. The historical roots of Houston County are found in the history of Henry County. In the 18205. Columbia. a rivtr town in present-day I-IOU$ton County. became the county seat of Henry. The date thill Columbia was u lablishcd is uncertain. However. the Indian! moved away (rom the area before 1820. E. M. Attaway built the first store at the lootion and is credited with being the founder of the town. Columbia was an important crossroads for overland travel. II was also located on the Chattahoochee mvcr making it accessible by water as well. Col umbia served il5 county seat of Henry County until 1832 when the courthouie was temporarily moved to Abbeville, which w;u named the permanent counly sebt town in 1833. Because of it$ location, Columbia continued to prosper as a center of trade and tran$portlllion. Acollege WI\! estbblished there in the 18305, and it conllnued to be the largestlown in the county through the census of 1890. The residents o( southern ~I enry County tried for more than 40 years to have the county seat and courthouse returned to a location convenient to them. EffortJ were made to remove the courthouse from Abbeville In 1845, 1860 and 1879. Each time the election results favored Abbeville. Pinally, in 1885, tht citiuns oI l/enry County voted to hold the second week o( terms 0( the Circuit Court in the southem part of the COllOt)'. Columbia was cho-

sen M the site. The citiuns of Columbia provided a building for we as a courthouse, II tv.'o-story brick ~tructure that had a wooden bell tower on itJ roof. The building served as a branch courthouse until HOU$ton Count)' was created and Dothan became ils county seal. The structure continued its public service by being used M Columbia's $ChQoIhouse (or many ye.lts. The building was later abandoned M a school and was bumtd in a fire. The area that would betome the city of Dothan was known to the Indians 11$ a campground and resting pillee, bolh isolated and pleasant. 11 was heavily wooded with poplar and pi ne trees and had a 1.lrge spring nQWing out. ~rl y pioneers (ound the spot as they traveled the tTllil from Columbia on the Chattahoochee nivH In the east to the Choctawhatchee region in the west. Other travelers journeyed through the site on thtir way from Eufaula in the north to Marianna. Florida in the south. The inter5ectiorl of the two pathways near the spring became known as Poplar Head. looted about 30 miles $Quth of Abbeville. I~y 1858. nine families called Poplar Head home. They petitioned the federal government in Washington for a post office. Official records sltowed that Alabama already had a I'oplllr J-Iclld list-

cd in another county and so the po5t office at Poplar 1·lead in Henry Counl)' was assigned the name l)oth£Jl. Very litlle growth took place in the community during the Civil War. Howt\1tr, in the Reconstruction period, lumbering and sawmill Opt ralion~ brought in new people. Ilnd SttlleTS came into the area to (arm the cleared lands. By 1880, a number of new citizens, including the ~'olkes Ilnd Baxley familie5, which included the grandfather and great·grandfather of Alabama State IJar Pre51dent Wade Baxley. and fo rmer Attorney General and I.ieutenant Governor Bil l Bnxley, moved 10 Poplar Head from the I~oc ky Branch community in Henry COUnly. By 1885 the population had grown enough for the town to be incorporbted. On November 10, 1885. 20 citizens of Poplar Head unanimously voted to incor· porate their town and chose the name o( the po$t office as their oIficial and legal tGYm I'IlIme. Some historical account.s slOl\t that the I'IlIme was given to the town by the Reverend J. Z. S. Connelly, who took the M ine for the place (rOm Genesis 37: 17 which reMis, 'For I heard them say. let us go to Dothan.' Biblical l)othan was a town and a plain located on the main caravan route from upnMoHA •• 1111 1 3D.

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Damascus to Egypt. While Ulis interut· ing story concerning the naming of the town hM been ~etold in seve~al historical accounts, it should be remembered tlml the former I'oplar Head had been called Doth.!:n fo r many years. The correct spelling of the town name was the subject of some debate. An artIcle appear~d in th~ Dothan Light on April 3, 1889, under the headline 'lIow 10 Spell I\.' The slOry read in put: "Our booming liule town is spelled by some D·o·l·h·e·n. and by others D·o·\-h-II-n. Now which is corred has been the object of much dispute. The post office department 5pells it'en' al Washington. We find It 'an' in the Bible, and we think ilthe oldest and besl authority, hence wt spell It I) ·o·l·h·a· n .~

Tht previously mentioned I~everend Connelly became the fi rst mayor of Dothan in 1885, He was followed by It 0, Carroll, In 1886, William J. Baxley, grandfather of Wade and Bill Baxley, became mayor and he served until 1887, Brucley was a blacksmith who later became a lawyer and thtn a justice of the peace. selVing until 1923. Dothan was rapidly becoming the prin· cipal commercilll and population center of the ·;Wiregr.w" region. This growth was sparked by lhe arrival of U1CAJllbarN Midland Rllilway in 1889. Dothan soon became a milroad hub IMlsitioned at the junction of lhe Atlantic Coastline Itallro.1d, successor of Alab.1ffi1l Midland, the Central of Ceorgia Railway, ilnd Ihe Atlanta $/ SI. Andrews r~ nailway.

This laUer railroad hIllI an interesting stol')' as a short line railway cl\cnding from Dothan to the Gulf 01 fo1exico. The town of Harrison, ~'lorida on SI. Andrews Bay .....anted to ri ...al Thmpa as a banana port and freight terminal for cargo transported through the IJannma C<lIla!. The shorlline .....as to be used 10 Ad the freillN to the Illrger lincs al Dothan, To c mpha.~ize its A0.11, the town of Harrison formally changed 11$ nnme to Panama City, Unfortunately, the railroads III Thmpa reduced lhelr freight ra.tes, lea...• ing the banana port at Panama City non· competitivt. Nevertheless, Dothan coo· tinued to h<lvt passenger rail it.lVice to the coast until 1956. And a large mea· sure of the growth and development of bolh Dothan and Panama Cil}' can be attrihuted to the railro., d affectionately called ~Th e Bay Line." On December 12, 189<1 , tht Alhbllma Legislature approved II second branch courthouse for lienry Count)' at Dothan. The citizens of Dothan pro... ided a building lit no c05tlo Henry County and from 1895 to 1903 Uenry County had three courthousu located at Abbe ...ille, Columbia and Dothan, The population of Dothan ....a5 grow· ing dramatically during these years. rising from 2<17 in 1890 to 3,275 in 1900 to 7,016 in 1910. When the Constitutional Convention of 1901 was organized, two Dothan delegates, T. H. Espy, a lawyer, and George H. Malone, a banker. proposed the creation of a new counly which would h<lve Dothan as it.s principal city. Thereafter, as mentioned before, Section 39 of the Constitution of 1901 was adopted, providing that a county with less than the previously mllndllled minimum area could be formed out of th~ count ies of Henry, Dale and Gene...a. Without this dlspens/l· lion in the Constitut ion. It would have been impossible to shape a new county with the required minimum area. In January 1903. /:-;spy, who was Henry County's representative in the state legislature. introduced a bill 10 create a new county out of Utnry, Dale lind Geneva counties. He proposed to call the new county "Uberty· County. His bill was reported fa ...orably out of comm ittee. In order to gain maxilllur'l'l support he stated thlll members of the I·louse could propose other names for the new county if they chose to do 50.

Itepresentative HcDormld of Barbour County offered an amendment to change the name "Libert)''' to "Semmes" to honor Admiral Raphael Semmes. a rmval I\(!ro and commander of the Confederate raider ~Alabama: Hepresenliltive Fulton of OeKalb County offered another amendment and proposed the name of "Hodes" in honor of I~obtrt ~;. Ilodes, II Confederate general from Atab.'lma who was killed at the BaUle of Winchester, Virginia.. Firmlly, Representative Robert Tyler Goodwyn of HontgOmcry suggt:Stcd the name "Houston" to honor Heconslruction·era Governor Georgt S. Itouston who died in 1879 while serving Alab.una as United Stales Senator. Goodwyn's amended bill passed the House by a vote of 52 to 26. On Februllry 9, 1903, Governor William Dorsey Jellu signed the law creating l-louston County. On FebruIII')' 20. 1903, Covtrnor Jelks appointed the firs t officers of the new counly. The next day lhe l~gislature •• m..... A. " ... moN, .Jr. 8ImueI A RumOre. Jr II I "'~ 01 II-. t.JrWtr1ity 01 NoInI

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IJn/Ye!tlly 01 AIIbIme SCI\O()j 0Il..wN He wrvt<I II fOlJtl(j'1\Q chlll'~101'1 or AlfUlmll S111e Bar'l FamII\I Law SectIOn In po-lICIioe In ~ wWI tile N!m 01 MIgIIDrKO" IVnn RumDrto ~ M 1111 ~ ~ lor tile 1011 CkeuiI. pIKe I'IUmt* lour. end 01 ".. ~ LIllYA' EdiIorlAl BoIrd MIl 1Io • ......cI 00I0rIeI1n "" iJnIllod SUiI" Al"'i RItMrYt JNJ COrpf._

u... end"

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named George H. Malone of Dothllll, C. C. Dalton ofWicksburg and H. P. Calhoun of Cottonwood as a commission to call an election to determine the location of the comty courthouse. this election took place on Mllrch 16. 1903, Dothan received 1,986 \IOtes and Ashford retcived 437 \IOtes. l)othan offi· clally became the new county seat. The legislature placed Columbia with· in the boundaries of the new county. Columbia had been a forme r county seat of Henry County and still had a branch courthouse. The legislature mandated thalthe fint seuion of court in the new county would be a spilt ses5ion in the spring of 1903, '!Wo weeks of circuit court wuuhl be held at Col umbia and two weeks .. t Dothan, The I;w()..week fall term of court and all terms thereancr would bt held exclusively in Dothan. in April 1903. the bl'lloch courthouse at Columbia was sold for one dollar to the town of Columbia to be used for municipal purposes, The old county jllil on Main Street in Columbia was restored in later years and turned into II museum. The first eourl$ for the new Houston County were held en the second floo r of a twu·story structure located at the corner of Foster lind Mllio street! in Dothan. These wen only temporary quarters until the \olers adopted a bond i» ue of $60,000 to finance the building of a courthouse, Acontract was sia:ned on November 10, 1904, with M. 1. Lewman and Company of Louisville, Kentucky for the

construction of a courthouse. The architect for the building was Andrew J. Bryan of New Orleans. What is signifi. cant about this collaboration is thai the ytar bcfor~, this s.1me architect and contractor completed tile Honroe County Courthouse in Monroeville. The bluic element! of the two structures are strikingly similar, Roth had a front sec· tion topped by a massive dome, Bolh had oval·shaped middle sections with a two·story circular courtroom. And both hlld a rectamtular third section in the rear of the building. In an article on the courthouse which appeared in Thl! Dothan Eagle in 1973, employees talked about the old structure. One secretary cal1td the court· house ~a mons trosi ty~ and described it iI$ "the most ill-arranged thing you've ever seen. ~ She slated that "there were little bits of space in there you couldn't use for anything. ~ It was IIpparently ~designed for looks rather than uti1ity.~ Another employee recalled that the old courthouse was crowded and that problems were caused by the open windows lind (ans used during the summer. Circuit Judge I{eener Baxley, who had served as both circuit S(llicitor (district attorney) lind circuit judge, recalled that the county had to pay a clock keeper to wind the mechanism on the court· house dome clock before it was replaced with electrical equipment. He stated that som~times the four clock faces show~d four different times. He recalled the circular balcony surrounding the high.cellinged circular courtroom. And in summer. he noted. the courtroom was nois), because the windows wtrt opeMd lind the sounds of traffic came inside. In winter, the courtroom was heated by a coal.burning stove and a jllnitor would often have to come in during a trial to shovel in more coal, This courthouse, which was complet. ed ;n lhe fall of 1905, cost $46,000, In 1938. the county added an annex for offices and a jail under the Federal Emergency Administration of I'ubl;c Works. Ogletree Construction Company was the builder lind Charles ~I . HcCauley was the architect. The co~t of the 1938 annex Wi15 $100,000. By the late 1950$;t became apparent trot tht county needed a new court· house. AgraM jury report dated SePtember II , 1957 cited many needs

for the count)', Ka nlajority of which are imp0$5ible to provide in the present buildin"." On October 27, 1958, another grand jury recommended immediate steps to build a modern courthouse on the lame site. And the grand jury report of ~'e bruary 24, 1959 slaled: "The courthouse as a whole is gerlerally in bad condition lind not adequate for the records and equipment needed to carry on the business of the county." Finally, the grand jury report of August 31, 1959 complained of "instances really too numerous to list in which our records, money, livcs, and future security could be endangered." It dted the present cour'thouu as "dangerous. unclean, uncomfortable. al'ld imp0$5ible of improlltment in IIny reasonable manner." In 1960, counly offices were moved to the form er Sears store which latcr became the Hhodes Furniture store and is now a law office building loc-aled across the street (TOm the courthouse. The old courthouse was torn down and II modem structure was built on the same site. Construction look 27 monlhs and the new courthouse was occupied in April 1962. The architect was Joseph I., Donfro & AsSOCIates of Dothan and the generlll contractor WIIS W. K. Upchurch Construction Company of Montgomery. The cost was approximately

$850.000. The new courthouse is of modern design. four storie$ in height, and is constructed o( reinforced concrele and masonry. Asolid wall on the wtsl facade ....'a! designed to eliminate the afternoon sun and the resulting heat from entering the building. An aluminum solar screen. designed to help reduce air-conditioning loads, protects the glass on the northern and southem sides of lhe building. The courthouse employees moved into this latest Houslon County Courthouse on Confederate r-1emorial Day 1962. • The author acknowledges the assistbnce of Dolhan altorne)'S Wade Iw ley and Dan Whitehead, the HOu$ton Counly Commission, author Wendell Stepp, and the Dothan I..andmarks "'oundation for assistance in obtllinlng material used in this article. SO Ul~C E S: I-liSIQrV of HrmrV Coullly, Alabama, Eva Clyde (Stovall) Scott, 1961; Nub of Ihe Wlregrass-r! flislorv of

Courthouses." T. E. Buntin, Jr" rhe Alabama l.aulyer, IIQlume 39, pages 582-583. October 1978; IIlaliama Magazine, August 9, 1937; The Do/han Eagle, Thesday, October 27, 1953; Article, The /)(I/han Eagle. April, 1973. by Jack Budd; Conslllullnn of Alabama of 1901, Article II. Section 3

COUlltV, Alabama, Fred S. Watson, 1972: HeIlfY, The Mo/her CounIV I816-19ru, Hoyl M. Warrerl, 1976; l)a/han, A PictoriallHslorV, Wendell 11 and Pamela A. Stepp, 1984; "Wircgrass Sagas,riOsar L.. Thompkins, The Alabama Lawyer , IIQlume 3, pages 249-276. July 1942; "I-Iouston County 1-/0IIsion

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LEGISLATIVE WRAP-Up By Hoberl L. r-1cCurlcy, Jr.

n addition to the Judges' Pay Raise Bill, the three Tort Reform Bills. and the Uniform Child Custody Jurisdiction and Enforcement Act that ....'frc mentiontd in the July 1999 Alabama IAWger; the following bills w(:rt enacted into law:

Hou.'II! 8111 7 (Act 99-397).Amends Alabama Code Title 32

Chapter 513, which reQui res the use of seal bell$, now permits Inw enforcemtnl officers to slop vehicles 10 enforce the wearing of scal belt~. Iiouse 8111 13 ('\cI 99·32 1I-Aconstitutional amendment that abolishes Alabama Constitution Section 102, which prohibits interracial marriagu. lIoule 8111 25 (Act 99-436)-AII()W5 grimdparenll to petition the court for visiUltion rights when Ihe child is1iving with both biological patents who prohibit 11 relationship between the grandparent and the grandchild. The statut e does provide (or the appointment of II guardian ad litem for the child. lIouse Bill 26 (Ad 99-447)·AmendJ the Protection of Abuse Act to provide a minimum of 30 days in jail (or a second offense and 120 days in jail for third and subsequent offenses of abuse. 1I0uie Bill 61 (Act 99.403)·Alabama Code 113A·5-<19 is amended to /ldd to the Ii$t of altgravatinll ci rcumstances which impose the death penally to include the murder of two or more individuals in one act or series of intentional killings, House nlll 123 {Act 99.437).When II child is removed from the home and is in tht cart of DHR, the department

must attempt tu place the child with a relative. The relative may receive full f~te r care benefits, lIoun. Bill 144 (Act 99-449).Allows the Secretary of SUIt to appoint intel'TUltional civil law notaries. To become an inter· national civillaw notary a person must have been admitted to practice law in Alabllmll fo r at least five years. 1I0use om 260 (Act 99.582). Requires stale a"encies to pay moving costs, relocation expenses and certain other c0515 to persons who own or reside In II dwelling on real property that is acquired by eminent domain. Iloull Bill 332 (Ad 99·40 I ).Provides U\OIt a state agency nlust notify an tmployee within ten days of any detrimental information placed in the state employee's personnel file. lIou le 8m 333 (Act 99·432) ·Amends Alabama Code 132· 5i\·199 to provide thlli ll perron over 21 yea rs of age, who Is convicted of DUI when a chlld under the age or 14 years of age was present in II vehicle at the lime of lhe offense, will receive a sentence double lhe minimum punishment. Iiouse 8111 383 (Act !l9·314)·Amends Alab.:lma Code 140·18· 160 to clarify thai lhe definition 0( Sub-chapter S Corporations confornu lo rederal income tax law definitions. lIoun nm 425 (Act 99·572).The Community Notification Act p rovlde~ (or notit'ication o( the release o( a sexual offender tel the neighbors around the new residence of the sexual (Jf(ender, This law hIlS been rewritten and lhe old law repealed.

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lIouft Dill 455 (Act 99.390).Provldes (or the distribution of funds received under the tobllcco tax. [t also provides that the Governor of the State of Alabllma wltl [nltlate and se:ule lawsuill involving the State of Alabama. Further. the ~mor will appoint all attorneys who represent the state. except UIOSC who are emplO';ed in the Attorney Ceneral', Office. Uc,)U8I! mil 480 (Act 99-598)·Amends f32 .5A.301 to 132· SA-308 to Rive specifi c guidelines to the proceedings fo r sus· pcn!ion or revocation of drivers licenses ll.5 well as to provide a period fo r IIdminis(rlllive review for a person notified of an intended license $uspension. There Is furthcr a rJghtto judi. cial determination follOWing the administrative h ~aring. lIousf: Blll 491 (Act 99.433).Provldes Ihllt juvcr'l ilc arre$t and conviction records. fingerprinll. photographs. DNA. etc. can be released to law enforcement agencies. victims and schools. This amends 112. 15. 100 et al. lIouse 11111 637 (Act 99-440)·Amends All)bama Code 130-3170,193 and 194 to provide that hunting and fishing licenses will be: suspended or revoked (or nonpayment of child support. IIOU81: 8111 708 (Act 99-589)·Amends the domestic violence shelter IlIw in Alabama Cooe 133-6·1 ct III. Marriage license fees lire increased by $ IS to fund domestic libuse centers. and the definition of abuse is expar,ded and provides for privileged com· munications belWfen the abused and counselors. Senate Bill 127 (Act 99-368)·Amends Alabama Code 1407-2.1 to provide that a tax ;wesser can take ar'lllpplicatiQr'l for 'a homestead exemption from an attorney for the person claiminA the exemption.

Senate 8111 270 (Act 99-371).Provides that in the cV('nt computers or computer software malfunction ~ue 10 Ihe processing datu and times of Y2K, there is limited immunity from dvilliabilit)' granted to the state. county, or municipali. ty, including their independent contractors. Senate lJili 393 (Act 99-.t35)·Amends Alabama Code 12610A·2 t l a1. Provides for the father's implied consent for an adoption If lhe father faib to provide pre·birth finandal or emotional suPt)()rt for six months before birth. Comcllon: The minimum salary for II district Judge begin. ning October 1,2000 will be $99,526. For more information concerning the Institute or any of ill projects, contact Uob HcCurley, director. Alabama. [.aw Institute, P.O. Box 86 1425, 1\Jscaloosa. 35486·(X)l3; phone (205) 348·741 1: fax (205) 348-841 1: or through the Institute's home pagc, www.law.ua.edulali. • Rob41rt L.

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Note: To date. a I courses except those noted havs been approved by the Center, P ease check the Interim Mediator Standards end Regrstration Procedures to make sure course hours listed will sat· Isfy the reglstraton require· ments, For addi \ onal ou t-of-state tralnmg, including courses In Atlanta, Georgia. call the Alabama Center for Disputo Resolution at (334) 269-0409.

CLE Opportunities The Alabama MandllkllY ClE CommlSSIOf"l con1lnually evalualos and aPllrovos n-stals, as wall as mniOf"lwido. programs which lire maintained in a com puler database. All If(!

Identified by sponsor, location, data and spac:llity area FOf a complete listing of (urr8f1t ClE opportunilies 01 a calendar, contact the MCLE CommiSSion office 01 (334)269·1515. e~lension

117 or 158. oryou may viow a complete listing of currem programs 9t the

state bar's Web sile. wwwllillbarOf(). UPl C"'P'[il lOgo I 300

Substance Abuse Statewide Symposium for the Legal Profession and Law Enforcement n OcttiJer 1 lind 2, the Alabama State Bar will join tho Montgomory,based Council on Substance Abuso·NeADD (CaSA·NeAOO) 10 present tho first annual Substance Abuse Symposium for tho Legal Profession and lew Enforcement. It Will be held lit the Grand

Hotol in Point Clear. Joanne Marie leslie, prDgram director of the Alabama Lawyer A$slsUirlce

Program. salVas on the symposium ad~isory commi ttee. The symposil.rn will bring together nationally knewn speaker s to address important issues such as; Economic Effects of Substence Awsll on Society. An Overview of Addiction. Intervention: The First Stop, Treatment: W,ot Works. Resources lor ASSistance, Co· Dependency, E:hlcs: Addiction lind Legal Issues, IIlld Draoger: Alcolesl7710MK tt l. Michael Moore. attorney ger10ral of the Stme of Mississippi, has agreed to bo the dinner's keynot(l speaker, and guosts may accompany conferonce participants for the dinner at II nominal additional cost. Other sponsors of the evnnt are: Alabama's Administrotive Office of Courts, Judicial Collogo, District Attorneys Association, Defense Lawyers Association, Trial Lawyers Association. Lawyers Association. Sheriffs' Association. Association of Chiefs of Police, State Troopers' Association, Peace Officers' Association, Criminal Defense La...,.,lIrs Associa!lon, Beverage Control Enforcement DiviSion. Department of Public Sofety, and Bureau of Investigation, Phone Alice Murphy, CDSA·NCADO e~lItutive director, at (334)262·4526 fOr moro Information. •

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A L ABAMA

ST AT E

BA R

Volunteer Lawyers Program Leadership Councils

he Volunteer Lawyers Program and the Committee 011 Access to [.tglll SClVices of the Alabama

Slale Bar recently recognized and thanked the VL!"s Leadership Councils, The councils are two groups of attorneys,

one In Birmingham lind one in Montgomery. who have assisted in the forming of pro bono com mittee~ and volunteers in the luge fi rms ill the state.

LE'M'ER TO mE EDITOR I rm:OMtly rmu!ltOd hom a sovon·month lour 01aGtMl mlliuliV duty with a dotach· mont Irom my Alabama Army Nationel

Guard utilI Five of those months were sponlln KVW811 portOfming missions n p;jl\ of Operations So~thern Watch and Oosen Fo~ Tho dotBchmont was activated very Quickly lost fa ll. wllh a minimum 01 notice Hrld ti mo to pJupBre. I tOke thiS opponunlty \0 thank the memo

DeIS and stalls Cllr.c L,mostono County Bar AMo<;I81!on, theJudgo$ of lime.'ltooo County. th(j LUTI(!stooo Count'! Coutthouso persoonol and the Alabama Courl of Cllmlnal Appoals and their staff b Ihcu coopmatloo and ~up port during the tOOIC days loading up to the doployment Iw..tchod tOO ilGtlVltlUS 01\110 Alahilma 000ch i lK! tJar eloroly during OperlillonS OIlS!)'1 Shiold and Oosort Storm and was (J~tromely proW of them I carl !lOW

gratfJfully. and v.1th tho cortBinty of oXpofi· onco. report tMlthe pooplo who ero our prolo~ron arc SJ 'oOOy \lnd wlllirlQ to do whatever is reqUitOO 10 suppon tooir reSllMl

compo!lOOl m6lltors lod~y as thll'( wore tNtn They hll ip make It happen l hM~ yOu,

Sinu r. ly. Fr. nk e. An garola Athenl. Alabama

312 lePTH .. IIU \OUU

This year's council members include Allison I.. Alford; Julhl A Beasley; Itobert C. Black, Jr.: Mitchell H. Boles; Carla R. Cole; Charl ~s B. Haigler; James D. Hamleu; D. Mitchell Henry; Shawn Junkin~; Hugh C. Nick~on, III : Karen Sampson; Launice P. Si lls; C. Clay Torbert. 111; Judy B. Van Heesl; and Patrick L. Sefton, all o( Montgomery. Birmi ngham council members ilre

Robert E. RaUle: Donna K, Byrd; Scott Clark: Pau l J. DeMarco: Tammy L. Dobbs: H'clen K. Downs: Michael D. ~mert: Jamcs E Hughey, Ill ; Jane G. Hall: Ann W. Jones: Frances E. King; Roberl M. Lichenstein, Jr,; Kimberly T. Lisenby; Candis A. MtCowan; AlllIte A. Phillips; Stott Salter; Stephen W. Shaw; Victoria FrankHn-Sisson; Lauren E. Wligner; lind Cllrrie P. Wf11 thl'l l1. •

It is hereby ordered that Rule 7, Alabama Rules of Disciplinary Procedure, be, and it hereby is, amended to add subsection (d), which shall read as follows: Old) Terms of Members of Locol GriovlloclI Committees. Members appointed to selV(l 011 a local grie~ar1Ce committee shall be appoinled for the following lorms: one·third 01thll Inillal membors mall bo appoinled for ooe year; ooe·third of Ihe initial members shall bo appomted for twJ years; arid one·lhird 01Ihe initial membors sholl be oppointffiJ fOf Ihme yoars. SubsllQuant appointments shall be for terms of three l31 years. No member wtto h3~ served three IUlllhroo·yoar terms shall be llligible for reappointment 10 the committee within two (2) years alter the arid of that member's mOSI recellt term, Any member appointed 10 sarve on a local griovmlCe committllil. shall, before serving on the committee, attend II training session conducted by the Office of General Ccunscl 01 the Alabama Siale Bar." It is lurthor ordered thallhe follOWing comment be cdded 10 Rule 1: ·Court Commant to Amendm(!nt elfecti~e Seplembor 1, 1999'"The amendment to Rule 7, effective September 1. 1999, added subSfJCli01ld], pro~id· lng for terms of members of local griovaoce committees." It IS further ordered thai the following note from the reporter of decisions to be added to follow Rule 7: "Note from the reporler of decisions: The order amending Rule 7, eHecti~e September 1. 1999. is publishetl In Ihet volume of AI(J/)qma Rapor(er thm contains Alabama cases from SO. 2d: It is furthor ordered thai this amendment and the adopllOn 01the comment be effecti~c Septenlber 1. 1999. Hooper. C,J .. &00 M&ddo~. Houston, Cook, See, Lyons. BrO'Nll. and Johnstone, JJ., concur.

ARBITRATION •• Post-Award Procedures By William fI. flarclie

Introduction It is assumed that a valid written agrecmcnlto arbitrate uisted in a transaction involving Inte r~ tll.te commerce so that the Federal Arbitration Act ("FAA") applies. It is also necessarily a$!umed that there has been II completed arbitrlltion award. There :tre two circumstances under which the parties to an .ubitralion rna)' wish to resort to the courts. First. II party unsatisfltd with the result may petition the court to vacate the award. lind second, the $ucce$$ful party may petition the court to enforce the award against a party who hilS refused to comply with the a....oard. In the latter case, the part)' resisting com· pliance may re!pond with a mOlion 10 vacate the award.

Enforcement of an Arbitration Award A. JurisdictiQn (I) Federal courts Although Section 9 of the FAA appears to grant subject matter jurisdiction to ftderaJ courts for arbitration cases. dicla in Moses If. Cohen Ml!Inorla/ Hospital IJ. Mercuf'JI Constmclioll Co17J" 460

U.S. 1.25 n32 (1983). says otherwise. Con!ll!Quently. federal courts h.we uniformly held that neither lhe ~'M itS a whole, nor Section 9 by itse!f. confers subject matter jurlwiction on a federal court. StJ(J 7'/>1 M(lrketlilg. Inc. /), Art & Jlnliquf!!lJlssocial/!$, L.P.. 803 ESupp. 994. 997-998 (D.NJ . 1992) (listing ca.~s). If other ba5es for fedcrnl jurisdiction, such as federal question or diversity

jurisdiction. exist, then Section 9 of the FAA authorizcs an action in federal court to con!'irm fl.n l'I.rbitrlltion aWllrd. The district in which Ihe award was made i5the exclusive venue for such an action. Ilill I-/arbcr/ Cons/ruction Co. v. Corlez D/i'rd Chips, Inc., 1999 Wl. 12237 19 (11th Cir. 1999), (2) Alabama courts For many years the Alabama Code has includ~d a provision barrin" enforcement of pre·dispute arbitration agreements: "The following obligations cannot be specifically performed: , . . (3) An agreement to submit a controversy to :arbilrlltion;.~ Seellon 8-1-41, Ala. Code (Michie 1993). The PM now preempt! this law (or allrcements involving interstate commerce. See Allied-l1mc/! 1i!rmhlix Cos. v. /)Q/)SQI/, 513 U.S. 265 (1995); Old I?opublic Imuranclt CO. IJ. Lonil1r, 644 So. 2d 1258, 1260 (Ala. 1994). The FM preenlption is not e~pre5$. and the Supreme Court the United States has held that the PM does not renect a conJlressionll.1intent to occupy the entire field of arbitration.

I'ollinformalion Sciences, Inc.

IJ.

1.I11und S/(mford. Jr.

(h,;IJ"

489 U.S. 468. 477 (1989). Therefore, theft Is no federal policy favoring arbitration under a certain set of proctdurat rutes. Id. at 476. Consequently. if the agreement to arbitl'lItf: also incol'poralu a choice of law clause. the arbitration proceduru of the state selected In that clalJse may apply even if the procedures differ from the PAA.ld. at 479. Alabama htls not developed rules for dealing with pre.dispute agreements Independent from the ~'AA, 50 the Supreme Court of Alabama has slated that It would follow

9 U.S.C. Sections J and 4 in connection with the initiation of arbitration based on a pre-dispute agreement. Alfled-Bruce Thnninix Cos. u. Dobson, 684 So, 2d 102, 106 (Alll. 1995). rm rvn1(md from 53 1 U.S. 265 (1995). The court has also relied on Ihe FM for provisions authorizing an appeal from the denial ora motion to compel Ilrbitratlon.ld. at 1()4 n. I. The Alabama court has further stated that when an arbitration contract evidences a transaction involving interstate commerce, "the policit1 and provisions of the PM govern all questions of the vaHdity. interpret.ltion. construction. ami enforce· ability of lhe arbitration agreement. IJ/ount InternatiOllal, Ud. u. James River.Amllington, Illc.. 618 So, 2d 1344, 13"5 (Ala. 1993): Old RqJUblic Insurance Co, u, umior, 644 So. 2d 1258. 1260 (Ala, 1994). Allhou"h the Alabama Code hM prohibited enforcement of pro-dispute agreements to arbitrate, ~uch an agreement is enforceable if it is mllde after the dispute arose. Therefore, since 1852 the Alabama Code has included its own procedures (or enforcing arbitration awards, See Section 6-6-1 through Section 6-6-16, Ala. Code (,.1ichie \993). This leaves open lhe (IUestion, discu~~ed fu rther in connection with tht V<lcatur of awards, of whether Alnbama or ~'M procedures apll]y to pWtaward petitions to confirm an award. H

O. AulhQrily Section 9 of the FAA st."lte$ th..11 lhe award may be entered by Ule court "if the p.lrtiu in thtir ""reement have agreed that a

Jud"ment of the court shllil be entered upon the aW<lrd, , • ," TIlis conditional statement tw raised questions in federal courts whether a judgrnentlmed on an arbitration award can be entered in the absence of I!. specific agrttment for entry o( such a

judgment by the parties. The issue hM not betn condu.sively Te5.Qlved. MO$\ COUtU have held that an explicit agreement between the parties providing for hHliclaJ confi rm<ltioo of an av""rd is not an absolute prerequisite to Section 9 authority to enter judgment on the award. ~pecially if the agreement states Ih.... t the award of the arbitrator shall be "final and binding. SN IJooth /J. l/uffI(I/'lIblishing. Inc.• 902 F.2d 925, 930 (11th Cir, 1990): n'{Jmsters-t.'mploger i.()C(11 No. 94S Pt'luiotJ fund /J. ,Ierne Sanitation Corp, 963 ~:Supp. 340. 346 (D.N.J 1997). This question is instructive to peOON dmftinA arbitrntion ~reemcnts. The fonn recommended by thf American Arbitrntion Association u.ses ~fiT\31 and binding" language aod contains an explicit agreement betwetn the partiC$ (or judicial oonfinnation. The Alabama <lrbitration act states that an award made substantially in compliance with the act is "conclusive" betwetll the parties. Section 6·6-14. Moreover, the procedure for confirmation in circuit court does not contain conditionalillnguage comparable to the FM, ft

C. Timing Section 9 of the ~'M provides that un action to confirm nn Iltbitrlllion award must be brought within one ycar o( the award, If it is not commenced within one year, lhl:n the action to confirm is lime barred in rederal court. The Alabama arbitration act does not provide for a specific period or limitations on commencinll an action to confirm an arbit ration award. Alab.l ma'S six-year limitations period for contracU and spe· cialties might be applicable. 54:ction 6-2-34, Ala. Code (Michie 1993). One federal courl, applying the District of Columbia Arbit ration Act, utili%ed the Districl of Columbia's general

It is ordered that the Alabama State Bar Mandatory Continuing Legal Education Rules and Regulations be amended to add Rule 9, "Professionalism," which shall read as follows: Rule 9. ProfesSIO'lahsm A. "Within twelve :12) montlls of being admitted to tile Bar, Of within twell1l (12) months 01 being licensed to pracllce law In Alabama,

whichENer shall last OCCUI. each lowyer shall complete a six~Sl hour cOlno in pl"Ofessionahsm, B "Tile Alabama Siote Bar shall prOVIde the materials and Instruction 101' t'l8 course In professionahsm. wttich snail be offered at least tour tunes each year C "The charge made for tho course shall not be more than the octual diract costs of cOnducling the course, including securing end reproducing printed metuiols, poying tho instructors. and paying tor the meeting room. o "Trle sanctions lor violating Rule 9 ara contained In Rule 6.8." 1\ ISfurther OI'demd that the fallowing note from the reporter of decIsions be added to follow Rute 9: "Note ffDm the reponer of decisions: The order adopting Rule 9, effective September 1. 1999, is pubhshed In thai volume 01 the AJabamB Roporrer that conta ns cases flom So 2d" It is further Oldorad Ihot this adOPtion of Rule 9 be olfective Septembel I, 1999. Hooper, C.J. , and MAddox. Houston. Cook. See. Lyons. Brown. aM JohnSlOOe. JJ. concur

limitations ptliod. In rlt C<msolidated Rail COrp., 867 ~:5 upp . 25,32 (D.D.C. 1994 ). One reawn to obtain Judicilll confirmlilion, even after a long delay, wou ld bt to eliminate any question about the resjudicata effect of an unconfirmed award. See, e.g.. Jacobson /.I, Fireman's Fund Insurance Co" I II ~~3d 26 1, 266·268 (2d Cir, 1997): Stu/berg II, Inllmnedics Orlhor)(!dics, Inc" 997 f~Supp, 1060, 1068 (N,I), Ill. 1998): JSCSecuri/ies, Inc, /.I, Gebbia, 4 ~:Supp, 2d 243, 250-25 ! (S.I),N,Y. 1998): flunls/litle Coif Ck.w lopmen/, Inc. /I, Aetna CA."uaft.IJ &Sure(IJ Co., 632 So. 2d 459, 461 (Ala. 1994). D, Procedure

(I) The FM The FAA contemp l ate~ Ulat any "party to the arbitration may apply to the court" for an order confirming the award. The court must grant such an order unless the award is vaCllted. modified, or corrected lU prescribed in Ule FAA, 9 U,S.C. Section 9, A party initi~tes proceedings to confi rm an award by fili ng either a petition or motion 10 confirm the award, not by filing a complaint. Booth /I, flume Publishin.r;, /nc" 902 ~~2d 925, 932 (I !th Cir. 1990), Tht document th<lt tommtntes suth iI protedure ~hould be tailed "petition for confi rmation of .ubi· Iration award" instead of a complaint. The petition must include the allplicatioll fo r the order c(/1lfirming the aWl1rd together with the arbitration agreement, the appointment of the arbitrlllor, the award itself and any other papers connected Wilh the application to confi rm, 9 U,S,C, Section 13. Notice must be served on the adverse pouty, TIle "notice" to the adverse J)<1rty is simply a copy of tilt petition, not a summons, There is no compulsion on the adverse J)<1rty to me an answer unless he or she seeks to set aside tht award, 9 U.S.C. Section 9, (2) State la"" The stlllulory procedure for reviewing all IIrbilrlllion aWllrd appears in the Alabama arbitration act. If an action is already pending, the successful party si mply files the award and other papers with the CO\lrt. If no fict ion is pending the successful party files the submission and award with the clerk of the ci r· cuit court of the county in which the award Is made, According to the stalute such an award has Ihe force and effetl of a jud~enl upon which eKctutlon may Issut as In other ca$es. 5(.'ction 6·6· 12, Ala. Code (Michil': 1993). For the successfu l party In an arbitration, th er~ are no particular pllfall$. M we shall see. It i$ the unsuccHsful party who must move quickly to avoid the traps in both the F'AA and state law procedures.

Vacating an Arbitration Award A. JurisdiCli(Jn A$ with the enforcement of an arbitration award, the proce· dures of the FAA are available in fede ral tourt only upon e$tl1blishment of Indepl!lldcnt federal Ju r i.~dic tion. See Kosop v. Fo/gor Nolan Fleming & Douglas, Inc., 166 F.3d 1243, 1247 (D,C. Cir. 1999) (questioning whether federal courts have ju risdiction even when the underlying dispute .. rose under fede ral lllw). Moreover, as with the enfo rcement, the FAA does not preempt statt procedures, Frequently, ~ n arbit ration agreement will contain language that tht ilTbitrator's award is "final," "binding," and "non· J'O

tuP'uMo~n

.......

appealable." Such language d ()l'!~ not. however, bar review and vacatu r for the grounds recognl1:ed under the f'edcral Arbitration Act. See IrUf!rfwllonal 1ldepassp(JrI Corp. /I, USFI, fnc., 89 F', 3d 82, 86 (2d Cir, 1996): M&C Corp, u. ErwIn Behr GmbH & Co.87 F.3d 844. 847 (6th Cir. 1996); DDt Seamless CVlinder IIllemalional. fllc.lI. Gencral F'ire Extinuuisher Corp .. 14 F,3d 1163, 1166 (7th Cir, 1994): Iran Aireraff Indus/ries v, A/ICfJ Corp., 980 ~:2d J4 1, .145 (2d Cir, J992), O. Procedure alld liming

Under both th ~ ~'AA and state law procedure), timing is allimpOrtant fo r the unsuccessful parly seekinlilo vacate :m arbi· tration award, (1 ) Federl1l Arbitl'lItion Act

Under the FM , notice of a motiorl to vacate, modify or correct an award in federal court must be served on the adverse PlITty within three months after the award is filed or delivered, 9 U.S,C. Section 12, Because the successful party hlU one year, the unsuccessful party may nOI simply refuse to comply with the award and await the successful party's action to confirm the award. Several courts have squarely held that the unsuccessful party's fail urt to move to vacate the award within the three-m"nth time precludes him from later seeking that relief when a motion Is mildc tQ conArm tile aw'lrd within (lne ~ar but afttr the. eXpira· tion of three months. See, e,g., Cullen /I, Paine, Webber, Jackson & Curt/s, Inc., 863 F',2d 851, 853-854 (11 th Cir, 1989), CIIrl. denied, 490 U.S, .1107 (1989): F'loraSVIIfIi. /ric, v. Pickllolz, 750 F,2d 171, 175 (2d Cir, 1984), (2) Alabama state court In state court, the time within which to act is even shorter, Notice of the appeal must be fil ed within ten days after receipt of notice of the award. The supreme court has stated that the only method for oppOsing the award under the Alabama arbitration act is an appeal within ten days after receipt of notice of the award, ilnd that appeal is to the "appropriate appellate court, ,md riot the trial court." See Moss v.Upchurch, 278 Ala. 615, 620, 179 So. 2d 74 1. 746 (1965) (the statutory proceduru are the exclusive methods for review of 111'1 award). The CMU, especially recent cases, are not consistent. See Roscoe /I, Jones, 571 So,2d 1043 (Ala. 1990) (no one questioned timing of defendant's motion to vacate nor did the parties follow appellate procedure of Section 6.6.15): Wright /I, lAnd Developers Construction Co., 554 So, 2d 1000 (Ala, 1989) (unsuccessful party did not file notice of appeal in accordance with Section 6·6· 15, and no one objtcttd): H.lA' Puller Com/ruction Co. /I. Illdustrial f)t!lH!IQPment8oard, 590 So. 2d 218, 221 (Ala. 1991 ) (supreme court remanded to comply with Section 6·6·15 and then I1pplied FM grounds for vllClllion Of awllrd), No decision of the Supreme Court of AI3bama has held that a IItlgant in the Alabama stlte cou rts can follow the PM pro· cedure or lime limitation to vllcate an arbitration award, In HL, Puller Cons/rucl/on Co. /I, Industrial Development 8(}(1rf/,

590 So, 2d 21 8 (AI .. , 1991), the unsuccessful party fil ed II notice or appeal wilh the Supreme Cou rt of Alabama which remanded the case to the circuit court for proc~td lngs in

accordance with Section 6-6· 15. Id. LIt 220·221. The unsuccessful party filed a motion to vacate which was denied and the supreme court then accepted the appeal. In Muxus. Inc. lI. Sciacca, 598 So. 2d 1376, 1379 (Ala. 1992), the parties apparently followed the FM procedures in the circuit court of Shelby County to review the award. but the tim· ing is not disclosed. The court sbted: The brood issue before Ihis Court, as fn.med by t>1axus. concerns the standard of review and procedure a court in Alabama is to ulilite In iu review o( an arbiln.lion proceeding. In other words. once the parties havt agreed to arbitrate a particular matter and one party is dis$Iltisfied with lhe results. will this Court apl)ly Alabama law or fedel'dllaw to review the arbitration award? It is only the law to be applied in reviewing the arbitration aWilfd that is in dispute. Maxus contends that this transaction Involved interstate commerce and that the Federal Arbitration Act, 9 U.S.C. Section I e/ SL'Q. (FM). applies. The Sciaccas arj:lue that the FAA is not apll1icable nnd thnt the arbitration award may be reviewed only :!ccording to the AI"b<lma Arbitration Statute. Therefore, In order to deter· mine the applicable Inw to be applied in reviewinA this arbitration award, we must determine whether the FAA applies. (Footnote omitltd).The court then reviewed the transaction and concluded Ihat it did involve inter· state commerce, so It held "that Ule FAA Is applicable here fd. The opinion does not reflect any appreci:ation of Ihe distinclion between the substantive duty to IIrbitrate impoud by the ~'M and the procedural forms to be followed in review· ing the award. Inste:ad. the court's analysis is Delphic. at best Having held that lhe FAA is applicable to this eau. wt point out that itt application is controlled by principles of "substantive federallaw.~ Ex parle Casta & Head, at 1275. In cases governed by the FAA, lhe federal substantive law of arbitration govems, despite contral')' state law or policy. Southlond CoI1J. u. K'Yltillg, 465 U.S. 1. 104 S.C!. 852, 79 U:d.2d I (1984): HI.. f'uffer CollstructiOIl II. InriustriallJewlopmcll1 lJoord of the 'TOIIIII of VinCilll/ , 590 So. 2d 218 (Ala. 199 1). ~'urt he r, the provi.

Q).

sions of Ihe FAA govern all qUUtiOll5 of the validity, interpretation, construction and enforcclibUity of the arbitration agreement. See Moses N. Cone Memorial Hospital II. NfJf(;ury COllstruction Corp .• 460 U.S. I . 103 S.Ct. 927, 74 L.Ed.2d 765 (1983): Wif{oughby Roofing & Supply Co. u. Kojim(lIIlICfllallollol. hie.. 598 F.Supp. 353 (N.D. Ala. 1984), afflrmcd. 776 ~~2d 269 (lIth Cir. 1985). at 1379. The court then referred solely to the grounds con· tained in the FAA for vacating an arbitration aw:!rd. Id. at 1380. It did not orrer any insight on the correct procedul'dl method for obtaining rtvitw. This may be read as an adoption of all FAA procedures for miew d an arbitration award, but the differences in timing and apJlellatt jurisdiction are 50 significant. that one could wish thaI the court had explained ItJelf with mort clarity. In Pructt II. Willillms , 623 So. 2d 1115, 11 16 (AIOI. 1993), the successful party fiI ~d a motion for summary judgment based

'd.

on the arbitrator'sllw:!rd within three days after the issuance of the award. The unsucceuful party filed a crO$$-motion requesting lhe court to vacate the arbilr:ation OIWOlrd OInd within the ten day period also filed an appeal of the arbitrallon award to the Supreme Court of Alabama pursuant 10 Section 6·6·15. The Maxlls decision seems to have been forgotten, and no reference is made to the procedures outlined in the FAA. A number of ca$tS outside Alabama have held thilt stale lim· itOltions tiln bar a motion to vacate even If it wu timely under the FAA. In Ekstrom II. Value Hrufth. Inc.• 68 ~:3d 139 1, 1392 (D.C. Cir. 1995), the court found that Connecticut's shorter limitalion on the time within which to file a petition to vacate was controlling becaust tht agreement specified Connecticut law in a choice of law claust. The court held that the longer FAA period of limitation did not preempt the parties' agreement that CQnnccticut law would apply. Id. at 1395-1396. In N''111 f..'ngftllld Utili/irs u. Ngdro-Qucix.-c, 10 ESupp.2d 5.1, 60 (D. MnM. 1998), the court declined to apply a shorter Mawchuselts period Qf limitation because the corllracl Invoked tht law of Quebec with a longer period o( Ilmitlliioru in ilS arbitration 100w. Nevertheless. the court acknowledged thl'l t the FAA did not preemplshorter state law periods of limitation. Therefore. in Ihe absence o( independ~nt federal jurisdiction, the unsuccessful party In Ahbarna should file a notice of appeal in the circuit court within ten days pursuant to Section 6·6·15. MQreover, even if there is federal jurisdiction, the action to wcate should be filed in federal court within ten days if the arbi· ltation agrCfment invokes Alabama l:aw in a choice of law clau~. The tension btlw«n the fo'M and state law i$ far from resolved. For tJUlmple. in MlJ5troiwono u. Slu!urson Lehman Uulton, Inc.• 514 U.S. 52, 54·55 (1995), lhe Supreme Court of the United States held that 01 contract subject to the fAA permit· ted an arbitrator to award punitive damages despite Nl'W York law that would prevent an arbitration award (or punitive dlun· ages. This issue, however, is more substantive than procedural. C.Crounds for uacatillfl an arbitrallon award

Arbitrators are 1I0t required to make finding~ of fact or conclusions of law. nor are they re(lui red to disclose the fa cts or reasons behind their awards. nt/mllardl u. PO/IIUrflph Co. of Amcrica. 350 U.S. 198,204 n.4 (1956). Moreover. the arbitra· tor's award carries a presumption of correctness. D.wis u. P,,,,IClltiul Securi/ies, 59 ~·.3d J 186, 11 90 ( II th Cir. 1995): /)r()w11/J. Rauscl/ll/!r Pierce Refslles, Inc., 994 E2d 775. 778 (II th Cir. 1993); Robbins u. Duy, 954 t~2d 679, 682 ( I I th Cir. 1992). cer/. dL'IIil!d, 506 U.S. 870 (1992). Therefore. the unsucctssful party faces a heavy burden in trying to overturn an arbitrntor's award. Both the FAA and the AJ3b30'1a arbitration OIct contOlin spe· cific grounds for denying confirmation of an arbitrMiol'l award. All of the grounds contained in the Alabama arbitration act, Section 6·6-14, are also contained in the FAA, 28 U.S.C. Stction 10. The ~'AA also includes additional grounds that do not appear in the Alabama act. UPTe .. na 'OU I

~'7

In addition. the COurt! seem to recognize extra·statutory grounds for vacating arbitration awards. &'fJ Wilko /J, Swan, 346 U.S. 427,436 (1953) (awards may be set aside (or ~ mani · fest disregard o( the law"); Cole /J. Bums Intern. Sec. Seroices, lOS F.3d 1465, 1486 (D.C. Cir. 1999) (listing grounds for vacalinll award), r-1oreover, the arbitration agreement can set out additional grounds on which a court may review the arbilr/rtou' award.IAPille Thchnology Corp. /J, Kyocera Corp., 130 E3d 884, 889 (9th Cir, 1997); C(1lel/lay n'clmo/ogies, Inc, /J, Me! 1/J(l1communications Carp., 64 P.3d 993. 996·97 (5th Clr. 1995): bUl 500 Chicago 'T'y/1Qgraphi"a( Union IJ. Chicago Sun-

Times, IlIc.• 935 F.2d 1501, 1505 (7th Cir. 1991) {parties can· not contract (or judicial review of an award). St.'fJ gl!lllt((1l1y 5, I.. Hayford. "lAWin Disarray: Judicial Standards (or Vacatur of Commercial Arbitration Aw:miJ,M 30 Ca. I.. Rev. 731 (1996). Consequently. the (ollowing statutory and Judicially-fil.$hioned grounds for vacating arbitratIon awards appear to exist: 1. The arbitrator was guilty of fraud in making the award. Section 6·6- 14 . 2. "he arbitrator was guilty of partiality In making the award. 9 U.S.C. Section lO(a)(2); Section 6·6· 14. 3. The arbitrator was guilty o( corruption in making the award. 9 u.S.C. Section 10(a)(2); Section 6·6· 14. 4. The award was procured by corruption. 9 U.S.C. Section 10(a)(I). 5. The award was procured by fraud. 9 U.S.C. Section 10(a)( I), 6. The award wa~ procured by undue: means. 9 U.S.C. Section lO(a)( I). 7. The arbitrlltor was guilty of misconduct in refu5ing to postpone the hearing upon sum· cient cause shown. 9 U.S.C. Section lO(a)(3). 8. The arbitrator was guilty of misconduct in refUSing 10 hear evidence pertinent and material to lhe controvtrsy. 9 U.S.C. Section 10(a)(3). 9. The arbitrator was guilty of misbehavior by which prejudiced the rights of any party, 9 U.S,C. Section 10(a)(3). 10. The arbitrator exceeded hb powm. 9 U.S.C. Seelion IO(~)(4). II. The Ilrbitralor so imperfectly executed his powers that a mutual flnalllnd definite award was not made, 9 U.S,C. Seclion 10(a)(4).I::.g.. Maxl/s, Illc. IJ. Sdac:<:a, 598 So.2d 1376 (Ala. 1992). 12. The award ~iolales fundamental public policy. &'fJ IJroom 11. Rauscher l>ie/"Cf1 Refslles, IlIc.. 994 ~~2d 775 (11th Cir. 1993): Hackett 11. Mi/lxmk. 7I.t'("f..'11 Had/ell & McOJV, 86 N.V.2d 146, 630 N.V.S.2d 274, 654 N.E.2d 95 (1995). 13. The arbUnter acted in manifest disregard of the law. OR. Securities, IIIC, II. ProfessiQnal Plan1ling As$ocs.• Inc. , 857 ~:2d 742, 747 (11t h Cir. 1988). 14. The arbitrator's award was arbitrary and Cal)riciou$. Raiford 11. Morrill I_Vllch, IJ ig/"Cf1, I''i!mwr & Smith, 903 F.2d 1410, 1412 tilth Cir. 1990).

15. The arbitrator's ilward was completely irrat.onal. See Lalfnll 7i.'chllo/ogv CO'7J. 11. Kvoatra Co,.".. 130 F,ld 884. 888 (9th Cir. 1997). 16. The arbitrator's award fails to draw its essence from the partiu' underlying contract. See Jenkins 11, PrudcrllialIlache Securilies. Inc.• 847 ~~2d 63 1, 634·635 (10th Cir. 19881. The cases Interpreting these grounds Dre fact,specific. so the precedent is not aiW/lYs instructive. This leaves ample room for a c reall~e lawyer to fit the facl! into one of these grounds,

Arbitrator's fraud This ground [s (ound in the Alabama arbitration act. Section 6·6-14. In Pruett u. lVilIiams, 623 So. 2d 1115. 1116 (Ala. 1993), the court rejected the unsucce»ful party's claim that the arbitrator had committed fraud in his iward by mis· representing his expertise in the area of construction law, Otherwise, the Supreme Court of Alabama seems not to halle given significant anlllysisto lhls "round. H owe~e r, the Jlrufllt case does give ~ome idea of whal mighl be raised under this ground. The phrase "fraud in making the award" suggest! that there must be some causal relationship between the fraud and the award.

Partiality in making the award This ground appcar$ in both the federal and AlllbllJ'M statutory law, Unfortun,ltely, neither act prollides any statutory guide to the meaninl{ of the phrase "evident JXlrtiaJity." Instead. Justice Black's plurality opinion in ConITTlOl1/t'(.wflh Coatings Cmp. u. Qmlil/t.'1llal Cosl/ally Co.. 393 U.S. 145, 149 (1968). is the beginning of the search for II definition. lie su!Utcsted that "we should. if anything, be Mn more scrupulous to $ol(e!lllard the impartiality 0( arbitrators than judges. since the former have completely fret reign 10 dtcidt the law as well as the fact! and are not subject to appellate review.~ 11lU!, he concluded, arbitrators must avoid evt!n the ~ajlpc/lr:lJ\CC o(bias." /d. at 150. This was not a majorily opinion. however, and the concurring opinion~ rn.~ke it clear that "arbitrators are not automatically disqualified by a business relationship with the JXlrlieJI before them if both ~rlies arc Informed d the relation· ship in ad~ance. or if they arc aware of the facls that the relationship is trivial." Id. (White, J.. concurring). MO$I courts are reluctant to impose Jwtice BlilCk's burden on arbitrators. Typical is the statement of Ole Second Circuit in 1-7orllS!p1/h. IIIC.Il. Pickhoh. 750 F.2d 171. 173-17.4 (2d Cir. 1984): 'The mere appearance of biM that might disqualify ajudge will not disqualify an arbitrator.M See Morclilo Cotu/rudion Corp. u. N(w }'lJrk City Oi.~tricl Cooneil CtJ'1X'11(t.'fS 1J(!llelil Funds, 748 ~:2d 79, 84 (2d Cir. 1984) (the father-son relationship belwctn an arbitrator and the president of an intcmntional union whose local union wMalX\rty to the arbitration is "evident p.ntiality"): Intenl(lliona/ l'rex/llce, Inc. 11. NS RossllaL'f!t, 6J8 r~2d 548 (2d

Cir.), cert. dcnied. 451 U.S. 1017 (1981) (the £act lhat an arbitra· tor WOI$ also iI witness in another arbitration involving the ~me law firms representing the IXlrties in the arbitrlllion in question WOd not "evident partiality"); 1.oca18J4, International fJrolherll()()li of1l!am~!cf$ v. J&B SlIstullls Illstollers & MOllln.r;, Inc., 878 Il.2d 38. 41 (2d Cir. 1989) (stand.1rd requires more than speculation tI'Illt amount5 to a claim that there is an appeal'll.llce of bias); HI.~s Brol.lllrrs. 1m:. v. Cupila{·N{!t'CUrg SIIirt Corp., 962 ~:Supp. 408. 414 (5.D.N.Y. 1997); foIantle v. liw0' Ikdr Co" 956 F.SuPP. 719, 729 (N.D. Tex. 1997) (listing casal. In I)(OOlnt International, Inc. v. CD Ml!dical, Inc•• 68 ~'.3d 429, 433 (1 1th Cir. 1995), the claim of partiality ....'as b;Lsed on cont:lCU between Qne of the arbitrators alld all aliorncy who was employ(!d by the same law firm that represellted the unSUCCt5llful party to the IIrbitration. Some of these contact! were disclosed prior to the arbitrlltion and rejected by the American Arbitration Associlliion as grounds for disqualification but othert were disclosed :iller the IIward. The district court's denial of the defendant!' motion to vacate was affirmed by the Eleventh Circuit. The appellate court characterized these argument! ilS "remote, uncertain, and spccuilltive llarliality or a mere appear· IInce of bias or parltality lU opposed to bias or IXlrtinlity lhat is dlrtct, definite, and Cllpable of demonstration." Id. at 434. In order to vacate on the ground or tvident partiality in such a non-disclmure case, the party challenging the arbitration award must e$tablish that the undisclosed facts create a "rea.sonable impreuion of pa rtiality. ~ MiddleslU Mutual "ISUf'OIIce Co. II. lAvine, 675 F.2d 1197. 120 1 (11 th Cl r. 1982). In HemmeN II. PclneWebbur. fl1C" 32 ~~3d 143. 148· 149 (<IIh Ci r. 1994). c~rt. dl!fl/ed. 130 I.. Ed2d 786 (1995). the court di$cussed the clllim thlltlhe arbitrator'$ conduct toward the party and the arbitrator's ex parte conduct with that party's counsel exhibited biM evidencing partiality. The party alleging bias must establish specific ract! that create a reasonable impres. sion of partiality. See Arizolla t,'IC!Ctric PQwer Cooperative, Inc. v. Ikrkclflg, 59 "~3d 988. 993 (9th Ci r. 1995).

Arbitrator's corruption The term "corru ption" Is not defined in either the state or federal acts. The dielionary defines corruption as ~ imlXlirment of integrity. virtue. or moral principle.~ lI'ebsters Nillth New Collegiate Dictionarg (1 987). No cllm hllve been round defin · ing this term in the context of arbitration.

fraud was materially related to the :lrbitration.A.G. Edwards & Sons. Inc. II. McO>llough. 96H:2d 1401. 1404 (9th Cir. 1992), cert. detlk!d, 506 U.S. 1060 (1993). "10rwver, the fraud must be established by "clear and convincin" evide nce.~ Id.: IJonar II. lk",,, lI'ill(l1' Regrwfds, Inc. , 835 1~2d 1378. 1383 (11th Cir. 1988). Perjury has been asserted u!l~ ucce~5fu Uy as a "round of fraud on which to bll5e the vacation of lin arbitration award. & 1.', e.g., Merrifll.gllch, Pierce. Fenner & Smith. Inc. v. lAmbros , I P.Supp. 2d 1337, 1345 ("1.D. Fla. 1998). IJerjury, thllt is fal se testimony during the courst of a trial, 15 not usuallyI' fraud on the court such l1S to support an action to set aside a judgment. Sl!e Noll v. Noll. 587 So.2d 1198. 1200· 120 1 (AlII. 199 1). quoting Traoolers Imiolmlity Co. (I, Corl!, 76 1 F.2d 1549. 1552 (l Ith Cir. 1985). Therefore. mere perjury, alone, is probably not a sumeient "fraud " on whleh to base a motion to vacate an arbitration "ward. On the other hand. if the succeS5ful party encouraged flllse testimony, then it might qualify. S«l Merriff l.1I"ch, Pierce. Fenner & Smith, lIIe. v. l..CJmbros, I ~:S upp . 2d at 1345.

Award procured by undue means Again, "undue means" is not defined in the PM, In Merrill LV"ch, Pierce. Fenller & Smith. '''c. v. l..CJmbros. 1 ESupp. 2d 1337, 1344 ("1.0. Fla. 1998), the unsuccessful party included such alleged conduct Illi conspiring to secure the unavailability of witnesses, supporting perjury. redacting documents by falsely IIssert ing privilege and procedural maneuvers desi"ned to inhibit the presentation of the IIdverse party's case as "undue mellns." In /loti v. MoZMfX(l, 916 ~:Supp. 510, 517 (D. Hd. 1996) (applying Maryland's arbitration act), the court accepted "oontemplates some type of bad failh in the proccu" as the defini tIon of "undue melins. It Illso concluded that the "me was true with respect to "ml sconduct ~ which must be "something Poltently egregious," such Il.5 an arbit rator sleeping during testimony or having ex parte con t a ct ~. Id. In 1)e(1II foods Co. v. IJnitlt(1 Steelworkers of Amorico, 9 t t F'.Supp. 1116, 11 24· 1125 (N.D. Ind. 1995) (labor arbitration). the court stated: ITlhe plaintiff who alleges thllt an arbitration al,\;ard was procured through "undue mClln$ri must demonstrate that the conduct was (I) not discoverable by due diligence before or during the IIrbltratlon hellring; (2) mate· ri<llly reillted to an issue in the arbitration; lind (l) established by clear and convincing evidence. Further. the court explained that the term "undue means connotes some type of "bad fai th ~ in Ihe procurement of the lI'Nard. ld. The courl rejected the suggestion Ulllt the term "undue means~ should be interpreted to apply to the submission of evidence that i$ merely legally objectionable. Id. M

Award procured by corruption This evidently refers to corruption by a party, wilneu or other person as well as the arbitratOr. Certainly, it would include bribery or other improper conduct intended to innuence the Ilrbilr,ltor. but it also might include bribery of wi I· nC5Ses or other parties.

Award procured by fraud [I seell\5 clear that in order to justify vacating an award because of fraud. the IXlrties seeking vac<ltion must show that the

Refusing to postpone the hearing Under the FM, a court rna)' vacate an a.,.,'ard where the arbitrators wert guilty o( "misconduct" in refusing to pG5tponc the hearing, upon sumeient Co'Iuse shown. This reference to postponement of tht htarin" is one of the most speCific or the

grounds stated In the FM. Therefore, in any ca.~e where. an arbitrator has refused to postpone a hearing, there is potential for an appliClltion to vacate the award. However. the statutory provision requIres interpretation of the term "misconduct" and evaluation of the ~suffieien l cause shown." In Crahams fWrvice, fllc. u. 'nwmstllrs Weal 975, 700 E2d 420.422-423 (8th Cir. 1982), Ihe court concluded that such a refusal would have 10 affect the rillhu ora party to the utent of depriving [t of a fair hearinll before it would apply this ground. It refused to vacate the award on this ground because it concludtd that the arbitrator's re(usalto po!>tpone the hearing did not dej;rive the party of a fair hearing. In Scott /J. Prudential &Curilies, Inc.. 141 F.3d 1007, 1016 (11th Cir. 1998). the court discusses some of the CMeI refusing to apply thIS ground to vaCllte an arbitrator's award. The court ex-pressly rejected the demands of ongoing litigation in another court as a valid ex-cuse for delaying the hearing. ld. at 1016-1017, In /!f(lrsh(11I & Co. /J. /)lIke, 94 1 ESupp. 1207, 1211 -1212 (N.J). Ga. 1995), ulrd. 114 E3d 188 (I Jlh Cir. 1997), cer/. delli/w, 140 I..Ed2d 108 (1 998), the court rd used to vllc"le hn """ilrd based on Ihe r~fU ~ll 10 poslPQne where there hnd been numerOu5 adjo urnment ~ :llld the unsuccessful party repeatedly fail ed to meet obHgatlons with re5pect to earlier hearings. The decision in 7lImrJO Slmln Q)rp. /J, I1ertek, IlIc.• 120 F.3d 16 (2d Cir. 1997), is unique in that the court of alJpeals reversed the trial court and vacated the arbitrators' award on the sole ground lhatlhe arbitrators h3d refused to postpone the hearing in order to hear testimony {rom the former presi· dent of the unsuccessful party. The court staled that the applicable standard was whether the action of the arbitrators was "fun damentally unfair." Id. at 20.

Refusing to hear pertinent evidence The courll do not seem to attribute any particular signifiCMCt to the u~ of the term "pcrtlnent" compared to, say. "relevant" or ~mnterlal. " In fact, "pertinent" $eems to combine the concepts of releVllllce and materiality, See Black's Law Diclio/l/lrll (61h Ed. 1990). It is also interu lillil that the FAA considers it a ground for vacatur to rofuse to hear relevant evidence. but not a ground to admit irrelevant evidence. Evidently, this renects II desire on the part of Congress that partiu to arbitration should be given a full and fair opportuni. ty to present all of their evidence, In Scoll /J. Prudential SI.'Curities, fIl C., 141 t:3d 1007, 1017 (11th Cir. 1998), the court concl uded that the arbitrators had not committed misconduct by refusing to allow one of the parties to participate In the arbitration by telephone because the evidence tendered was irrelevant. On the other hand. in GulfCoost IlIdustrlal Worker.s U"ion fl. Exxon Q)mpally. USA. 70 f:3d 847, 850 (5th Cir. 1995), the appellate court upheld the district court's decision to vacate the award, The arbitrator not only had refused 10 consider evidence of a positive drug test bul he also prevented the employer from presenting addi. tional evidence. Then the arbitrator used the lack of evidence as a predicate for ignoring the test results. The court observed l20

n~u"'lu

""'0

that such misconduct "falls squarely" within the meaning of misconduct and refusln" to hear evidence. In Robbins fl. Dog, 954 F.2d 679. 685 (11 th Cir. 1992). cert. dmicd, 506 U.S. 870 (1992). the court SUIted: A federal court may vacate an arbitrator's award under U.S.C. Section 10(a)(3) only if th~ arbitrator's refusal to hta.r pertinent and material evidence prejudices the right of the parties and denies them a fair hearing. Further. an arbitration award musl not be Jet aside fOr the arbitrntor'S refusal to hear evidence that Is cumulative of irrelevant. The court affirmed the district court's confirmation of the award where the unsuccessful party's representation to the arbitrntor and oPpo!>ition 10 postponement created the circumstances under which the arbitrator was unable to hear the evidence. In Schmidt /J. I-Inlx!'1I. 942 t:2d 1571. 1575 (11th Cir. 1991). the court considered both a refusal to po.stpone and II refusal to heilr evidence claim and rejected them, in PiJrt. on the grouf\d thlll the unsuccessful parties $£eking vacation of lhe award had mnde no offer of the testimony that the witness would have given If the hearing had been conllnued. In PQmpal/o-Willlfll City PurtmlrS, Ltd. /J. Beer Sttwms & Co" 794 F.Supp. 1265, 1277· 1278 (S.D.N.Y. 1992), the court concluded that even if the arbitrators had improperly ex-cluded one witness's testi mony, it was clear from the "wealth of evidence in the record" that the ellclusion did not constitute a denial of Ma fundamentally fair hearingMsufficient to justify vacatur of the award. In Prudential Securilil!S. Inc. fl. DaItOl/, 929 f.SuPP. 141 1. 141 5-14 16 (N.!>' Okla. 1996), the court defined a "f~mdamen tally fair heari nll~: A fu ndamentally fair hearing requires Ihe procedural steps o{ notice, an opportunity to be heard, the opportunity to present evidence which Is relevant and malerial, and arbitrators who are not infected with bias. In C01llux USA Corp. /I. Dixie-Narco, rile.. 929 t:Supp. 269, 274-275 (N.D, Ohio 1996). th~ unsuccessful party claimed that It had been dtnied a fu ndam~nta ll y fair htaring because the arbitrator refused 10 hear evidence after Ihe award in re$ponse to the basis of the arbitrator's award. The court observed thai the (lrbitrlltor had heard all the evidence proffered before making his ruling. The arbitrator was not required to hear newly discovered evidence, and such evidence could not be mllde the b,l$is fo r vacating an arbitration aWllrd. Otherwise. "arbitration awards could never be final." Id.

Misbehavior that prejudices the rights of any party This category is obviously a catch-all for wrongful arbitrator conduct that causes prejudice to one of the parties. It has been the basis for vacating an arbitrlllion award where the arbitrntors rec;elvtd ex parte Information to Ihe prejudice of one of the parties. Setl n'(1msters Locul312 /J. Matlack. Inc. , 11 8 F.3d 985, 995 (3d Ci r. 1997); Mutual FiY1l. Marine & fnland Ins, Co. /I. Norad Reinsurance Co" 868 f:2d 52, 55-56 (3d Cir. 1989).

In Uebman II. Alphagraphics Franchising, Inc., 958 F.2d 377 (9th Cir. 1992) (unpublished) the unsuccessful party to arbitration complained that the arbitrators' rulings with regard to the use of coun!eJ constituted misbehavior. but the court responded: ~Arbitrator decisions which are fair and rational do not constitute misconduct. ~ Inasmuch !1S the restrictions were imposed equlllly on eilch side. the court concluded that there was no misbehavior. In Schmidt v. Hnbcfg, 942 F.2d 157 1. 1575 (11th Cir. 199 1) the courl concl uded that the arbitrators' rdusallo postpone the hearing 10 allow testi. mony by one of lhe parties not only was not misconduct within the meaning of the provision eKpressly related to postponement, but WI!! 1115() not misbehavior by which the right! of the party had betn pl'tjudiced. In 'ftade & rraflsport, Iflc. v. Naturol l\!lrolcum Char/I!Tef'$, Inc., 931 F.2d 191. 196 (2d Cir. 1991). the court ttjected the unsuccessful party's contention that an arbitrator s refu.ul to resign in the face of another arbitrator's death was misbehavior. In fOfsylhe Inlern{llional. S.A, /J_ Cibbs Oil Comlxmy 915 ~·.2d 1017 (5th Ci r. 1990). the court reversed a district c~urt's vilclllur on th ~ Ilround, among others. Ihllt the .. rbitrator's refuSlI1 to take action in response to the succe~Mu l party's misrepresentation constituted misbehavior. The three-member plinel consisted of a representative from each of the two sides and a neutral choscn by the two representatives. Specifically. the unsuccus(ul party complained about discovery abuu by the successful party. The appellate court applied de novo review and found no basis fo r attacking the propriety of the panel's award. In Creen v. MU!fitech Corp .• 12 ~:S upp.2d 662 (E.O. Mich. 1998). the court rejected the unsuccessful party's claim that the arbitrator's delay in rendering his decision wa.~ misbehliVior prejudicial to the party. The award, which was due within 21 dnys of the fillnA of post.arbitratlon briefs. was not i$$\led unlil one year after the deadline. In Ma";III.vnch, Pierce, fermer & Smith. Inc. /J. IAmbros. I ~~SUJlP. 2d 1337. 1343 (1)1.0 . Fla. 1998), lhe court found nl) prejudice in the alleged misbehavior of the arbitrator in striking comments from Ihe record and faili ng to obtain copies of the exhibits. In Arbitralion Be/ween 1h1ns Chemical Ud. and China National MIIChinefglmpoft (lml £xport Corp" 978 ~~Su pp.

266, 306 (S. D. Tex. 1997). the court rejected the contention that an "irrational scheduling order" constituted misbehavior. In Mimlle /J. Uppef D«k Co., 956 ~:Supp. 719. 730. 73 1 (N.J). Tex. 1997), the court failed to find "misbcl1l1vior" in the arbitrator's rcfU5II1Io return exhibits produced during the hearings and lhe arbitrator's review of documents wilhout giving an opportunity to the other party to revlcw the documents. Inadequate notice of a hearing. alone. is not a ground to set n.side an award. but failure to give notice can be raised iI$ misconduct or misbehavior if il rises to that level. See Gingiu Intcmalional, Inc_ u. Bonnet, 58 ~~3d 328. 332 (7th Cir. 1995). Other cases have stated that lack of notice is a ground for vacatur If it prevents a party from presenting evidence. See n'UmSll!fS Wc(11 3f2 /J, Matlack, Inc., 11 8 ~:3d 985. 995 (3d Cir. 1997); Robbhuv. Day. 954 F.2d 679. 685 (1 1th Cir. 1992). cerf. dl!flilld. 506 U.S. 870 (1992). These cases confirm that "misbehavior" is an allract i~ calegory to challenge any questionable conduct by an arbitrator.

butlhe c.ues al$O Confirm that such a challenge is seldom successful.

Arbitrator exceeded his powers Th is is one of the express statutory grounds under the FAA. In resolving question! concerning the authority rI an arbitrator. courts construe the a/,lreemenl and resolve aJi doubts in ravor of the arbitrators who have a great deal of nexibility in f(lshioning remedies. Thus, there is a heavy burderl on those who claim that the arbitrators have exceeded their authority. SL't! 11. f... fuller COIlSifuction Co. v. Induslrial De!.'(IlopmClII

&ani, 590 So. 2d 218, 223 (Ala. 1991). In the P!llIur Comiruction case the unsuccessful party con. tended that the arbitrators had exceeded their ~rs betause they had ruled inconsistently in favor of the petitioner on its claims and the third party defendllnl on its defenses. The Supreme Court of Alab,1ma concluded that It could not .uy thlll the Ilrbitrators had exceeded their powers. but the court declined to analyze the issues in the arbitration sufficiently 10 disclose the basis for its conclusion. It simply observed that under the rules of the American Arbitration Association the arbitrator was empowered to grant :lOy remedy or relief thllt is "just. equitable, and within the terms of the aAreement of the p.utiu." Id. at 22J. Similarly, in Moxus, Illc. /J. Sciacca. 598 So.2d 1376, 1381 (Ala. 1992). the unsuccessful party arg(led that the arbitrator had exceeded his authority by railing to award interest. The agreement out of which the arbitration arose tKpressly provided that interest should accrue on the escrow paynlents in conlention. Therefore, the court concluded, the arbitrator had exceeded his authority under the agreement. ftI. In lIunlSl;il/e Golf /)(!lJ(!lopm(!lI/, Illc. II. IJrimllllY Constfuctioll Co" 84711:Supp. 1551 , 1556 (N.J), Ala. 1992), the court CJ(pl(lined that in determining whether the arbitrators have exceeded their authority under the arbitration contract, the court must give deference to the award when it is reviewed under the FAA. The court explained: "This court is not free to vacate an award based solely on an alleged error in contract interpretation," Instead, the court furthe r n plained: "Where a rational ground for the arbitrators' decision can be inferred from the facts of the case, the award should be conf1 rmcd. ~ Id. f>loreover. 1\n ambiguity In an arbi. lmtor's decision Ilccompanyin~ an award which permits the

'd.

U~H ... I!It'''D l n '

inference that the arbitrator may have exceeded his authority is not a reason for refusing to enforce the award If a contraty inference could also be drawn. l:.'dalmall /). Western Airlim!s. 'TIc., 892 ~:2d 839, 849 (9th CiT. 1989). In /(ahn /). Smith 8an/eJ/ Shearson 115 t:3d 930. 933 (1 1t h Cir. 1997). the court held that the arbitrators had exceeded their powers in rulinl{ on the defendant's statute of limitations defenses si nce anolher court had ruled that the parlii.'~ hOld cho~en to have the limitation~ dtlermination made by the court and not the arbitrators. [n Green /1. Ameritech Corp .. 12 ];O:Sullp.2d 662 (E.D. Mich. 199B), the district court vacated an arbitrator'S award and remanded to a new arbitrator because the original arbitrator had not adhered to the arbitration agreement and failed to explain his decision as required under the agreement.

The United States Court of Appeals for the Elevenlh Circuit recognized tht txis!ence tJf a public policy ground for vac;atur, but refused to apply it in Brown /1. Rauscher Pierce Rdslll!s, l11C" 994 E2d 775. 782 (11th Cir. 1993). According to the court. such a publiC policy must be well-defined and dominant and ascertainable by reference to the laws and legal prece· dence and not from general considerations of supposed IlUblic interest. The law defining statutory damages is not such a public policy that the arbitrator's fHilure to follow it would render an arbitration award subject to vacatur.lIf. It has been held thai although the court must determine whether the arbitration award violates public policy, the court must rely upon the arbitrator's facts. St.'e f)clll/{!T & Rio CrandlJ Westem R. Co. 1.1. Unioll Pacific R. Ca., 868 ~~Supp. 1244 (D. Kan. 1994). aff'd. 11 9 l;O:3d 847 (10th Cit. 1997).

Failure to issue a mutual, final and definite award

Arbitrator acted in manifest disregard of law

In his law review article, Professor Hayford suggests that lerm "mutual" simply means Ihalthe members of a multi· arbitrator panel, or at It,.~t a m,tiority of the panel. m(lst agree to the arbitral mull. S.L. Hayford, lAW In l)isamlJ/: Judicial Stalldards for Vacatl./r of Commercial ArbitratiQn Awards, 30 Ca. L. Hev. 73 1, 751 (1996). Otherwise, the tHms "final" and "~efini le" seem self·ev!dent. In Maxus, Inc. /1. SCidCCQ, 598 So. 2d 1376, 1381 (Ala. t992), the court concluded that the award was indefinite, uncertain and imperfect because it did not finally dispose of all issues, and the ci rcuit court should have set aside the IIward. Similarly. in Wr/flhl IJ. iAmllklJl1lolMrs Omstruction Co .. 554 So.2d 1000, 10Q2 (Ala. 1989), the court observed that the awar~ must be a final determination of the matters submitted or "there is no award." In that case the arbitrators had issued an aw'lrd clearly labeled <IS an interim awar~, so it was not improper for the arbitr<ltors to issue a second. final award.

This ground is also a Judicially-created bbsis for vacnting bn award. Its origin is in dictum from the opinion il'l Wilko 1.1. S/Wl!, 346 U.S. 427, 436 (1953). The Supreme Court has not further elaborated on the meaning and significance of this statement. but it has been developed in the federal circuit I;o... r\$ of ~ppe~I$. A party seekinl{ to vacate an arbitration award on the grolmtl of manifest disrC!lar~ of the law may not proceed by merely obj~cting to the rt$ults of the arbitration. OR. Securities. Inc. 1.1. Professional Plallning Associa/es, 857 ~~2d 742.747 (11th Cir. 1988). When a claim arises under ~pecific I<lws. thl: arbitrators are bound to follow those laws In the absence of a valid and legal agreement not to do so, but that does not mean that arbitrators can be reversed for errors or misinterpretations of the law. An award can be vacated where it was made in "manifest disre· gard" of the 11'Iw. See Montes 1.1. SIIMrSQIl Lehman IJrothers, Inc.. 128 ~:3t11456. 1460· 1461 (11th Cir. 1997) (listing cases). In the Montes case, the 11th Circuit reversed the district court's confirmation of an award because counsel for the successful party repeate~ly argued that the arbitrator was not Cl)mpclled to follow lhe law b\lt could do what is "right and fair and proper." Id. at 1459. This invitation to disregard the law coupled with the w!IIplete lack of support in the evidence fo r the arbitrator's ruling led lhe circuit court tl) find thM tht tlrbitrators had engaged in manifest disregard of the law. In Halligal/ /J. f>iperJarrray. tnc., 148 ~:3d 197.202 (2d Cir. 1998), u rI. denied, 11 9 S.Ct. 1286 (1999), the court obsel'\Oed that to modify or vacate an award for manifest disregard of the 11'Iw, a court must find that (I) the arbitrators knew of a governing legal principle yet refused to Hpply il or ignored it altogether and that (2) the IlIw ignored by the arbitrators was well-defined, explicit and clearly lIpplicable to the case. See DiRussa /1. /Jitan Witt"r RI1J/ntJIds fllc. 121 E3d 818. 82 1 (2d. Cir.1997). In Halligan /1. /liper Jaffrau, IIIC" supra, 149 ~~3d at 204. the court relie~ on the fact that the arbitratOrs had not ~xplaine~ their aWilf~ although. as the court conceded. the arbitrators had no obligation to do $0.

'"C.,

th~

Award violates fundamental public policy This ground of vacatur is a creation of the courb. It is sQmewhtltlttme In view of the fact that the ~'M preempts Alttbama'! strongly expressed public policy ag1linst pre-di$pute arbitration agreements. Nevertheless, it stems to be a wellrecognized ground for vacatur. For example. there Is 11 strong public policy in Alabama against agreements that restrict the ability of a profmional, such as a lawyer. to practice his procession, ilnd an ~greement that restricts a lawyer's ability to practice upon withdrawal from a firm is void as against public policy. SI.'e /li(!rc:e 11. Nand, Ar(!lu/(III, I)"dso{", CrcalJl1s & Johnston, 678 So. 2d 765, 767-768 (Aln. 1996). Consequently, it would not make sense if an arbitrator COll\~ enforce an agreementth1l1l! court COuld not. The application of that public policy Issue ....·as the subject mllller in two cases in which arbitrators' awards were challenged. St'i! WeI:"''! /1. Carpenter t*tllnetl & MorrisscJ/. 143 N.J. 420, 672 A.2d 1132 (1996); Hackel/II. Milbank, 'TWeed, HadleJ/ & McCloJ/, 86 N.Y. 2t1 146. 654 N.E. 2d 95, 630 N.Y.S. 2d 274 (1995).

Award was arbitrary and capnclOus The Elevtnth Circuit has established in a series of recent opinions lhllt it will vacilte II commercial ~rbilration award if the award is deemed to be "arbitrary and capricious." This non-statutory ground was lirst recogniud in Ruiford II. Merrill I.!lnch. Pierce, r0mer & Smith. 903 F.2d 1410 (II th Cir. 1990). bullhe clearest articulation of that ground is fo und in AillSworth II. Skllrtl/ck. 960 1~2d 939, 941 (11th CiT. 1992), terl. df.'I1i,>d. 507 U.S. 915 (1993): "An award is arbitrary and capriclous only if '3 ground for the arbitrator's decision cannot be inferred from the (acU of Ihe case.'" In AlilsllJOrth, the arbi-

tration panel, in the face of an explidt instruction from II federal district court that an award of damalles to Ihe claimant was required under controlling state law, ne ... ertheless, falltd to aWilrd damages, based on its conclusion that the claimant had suffered no harm. " he court reasoned that il was nota que$lion of deciding the: law and getting it wrong; it was a denial of relief with no (actual or legal basIs. In Uk'f;arc Internal/onal, Inc. /I. CD Mru/ical, Inc., 68 E:Jd 429,435 (11th Cir. 1995), the court stated that an arbitration aW.1rd will be ...aC<lted on .1n arbitrary and capricious ground "only if there is no ground wh3lsocver (or the Panel's decl· sion." $('0 Brown II. f?auscher PiIJrce Refsnes, IIlC., 99<'1 1I.2d 775. 781 (11th CiT. 1994): Robbins u. Day, 954 ~~2d 679, 683 (11th Cir. 1992). cerro denied. 506 U.S. 870 (1992).

Award was completely irrational The "completely irrational" ground for vacalur of an award was first mentioned in a commercial arbitration case by the Third Ci rcuit in Swiflilldusrrles II. OotaT/ylndustries, 466 1~2d 1125, 1129 (3d Cir. 1972). In IAPinlJ 1'ItchT/oiogy Com. u. Kyocera Corp., 130 ~~3d 884. 888 (9th CiT. 1997). the court Slated: It is beyond peradventure that in the absence of Iltly con· tractual terms TelUlrding judicial review, a federal court mil)' ...acate or modif)' an arbitration award only if that award is "completely irrational." exhibits a "manifest disregard of law." or otherwise fnlls within one of the grounds set forth in 9 U.S.C, Sections 10 or II. St.'C Mutual Firv "'urille & IlIlalld Insurance Co. v. Norud ReinsurallaJ Co .. 868 ~·.2d 52, 56 (3d Cir. 1989) (an award will not be subject to Judicial re...ision unle" it Is "completely irra· Honal"). The I-;Ieventh Circuit does not Ilppear to have adopted the "completely irrational" standard. but it seems functionally equivalent to the "arbitral')' Imd capricious" standard.

Award fails to draw its essence from underlying contract The "essence of the agreement" test originated in labor arbi· trillion C<lSC$. United IJaper librker.f In/emutionul Union v. Misco, IIlC., 4M U.S. 29, 36 (1987); Ullilt'(l StcelworkilrSIi. t.'ll/qrJ}riS6 Wheel & Cur Corp .. 36..1 U.S. 593 (1960), The Tenth Circuit adopted the "essence of the agreelllent~ slandllrd

despite its precedence excluslvtly in the collecti...e bMgaining context See Jell"h" /I. Prudential·Bache S«urltles. Inc.• 847 E2d 631. 6:M·635 (10th Cir, 1988); Seymour /I, IJlue Cross· Blue Shield, 988 ~~2d 1020, 1022 (10th Cir. 1993). The ~:le ...enth Circuit does not appear to hll\lt adopted this ground for vacating lin arbitration award.

Contractual standards of review In lAPine Thchno/of/II Carp. u. Kyrx:era Com" 130 1;:3d 8&1 (91h Cir. 1997). the arbitration agreelllent obli@ted the arbi· tralon; 10 inue II written award that stated the bases of the award and included detailed findings of fact and conclusions of law, The agreement further authorized a federal district court to ...acale, modify or correct the award where the arbitrator's findings offact were not supported by substantial tvidence or the arbit raton;' conclusions of law were erroneous. The Ninth Circuit held that it W/IS appropriate for the re ...iewinlt court to apply this contractual standard of review. rather than any judi· cial or statutory standards, in eV/duMing an arbitration award, If the parties so agreed. This opinion has been contro...ersial. SLoe A.~~ Lowcnfeld. CUll Arbitratlon Co-exist with Judicitll Neuielvl: ,.1Critiqul! of Lapine .... K}'OCera. Af)N Currenls I (September 1998).

Standards of appellate review The grounds discussed above art the grounds that a federal district court. or in Alabama a circuit court. are to apply in re...iewing lhe propriety of an arbitr:ltion award, The Supreme Court of the United Stales has clarified the standard that an appellate court mU$t apply in reviewing the district court's decision. In reliance on the Supreme Court'$ dccl$ion in First Oplions ofChicayo, /rIC. U. Kaplan. 514 U.S. 938. 9<'17·948 (1995), the Ele ...enth Circuit "dopted II standard b)I which it WOuld rtview II district court's faclual findings in ~ n arbitra· tion cast for "clear error" and ex"minc its legal conclusions de nOlJ(l. LifecurI! International, Illc. u. CD Medical, Inc., 68 F,Jd 429, 433 (11 th Ci r. 1995); Dauls u. Prud('1llial Securities, IlIc.• 59f'.3d 1186. 11 88 (1 Ilh Ci r, 1995). The Supreme Court of Alalmma hllS left w me mystery 115 to how it should review II decision to confirm an arbitration ilward. In NlLt'us. Illc. /I. $ciocca, 598 So. 2d 1376, 1379 (Ala. 1992), the court Implied thM the FAA procedures should be followed. On the other hnnd, in the later decision in f?'lIellll.

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Williams. 623 So. 2d 1115, 111 6 (Ala. 1993). the Supreme Court of Alabama purported to be following the procedures of Section 6-6-15. That section p rovide~ that the notice of appeal together with the award and tht arbitration file must be delivered within ten days to the court to which the award was orig. inally returJ\lIblt. The clerk must enter the award M the judgment of the court. Thereafter. unlcu within ten days the court sets aside the award fo r one of the causes specified in Section 6·6-14. the judgment shall become final and an appeal shall lie as in other cases. If the circuit court seu; the award aside. then that deci5ion is also appealable. It is not clear from the Alabama arbitr"Uon act what SOrt of procedure~ arc ~(miemp lllled. In Commercial Union Insurance Co. /J. Ryals. 355 So. 2d 684 (Ala. 1978), the trial court heard evidence and iuued a judgment confirming the lIward which became Ihe subject of the appeal to the Supreme Court of Alabama. The SU]lreme Court of Alabama has not been clear about what deference. if any, it will give to the ci rcuit court's review of the award. In Naxus. Illc. /J, Sciacca, 598 So. 2d 1376. 1379 (Ala, 1992), the court discussed the "standard of review "nd procedure a court in Alilbama is to utilize in il5 review of arbitration proceedinlt," It did not. however, discuu the relative role of the circuit court .md the supreme court. The supreme court does, however, appear to h'lVe reviewed the arbitration award de nOl!() without giving any parlicu ltlr deference 10 the deci~ ion of the circuit courl. This would be consistent with the Fir.d Options decision of the Supreme Court of the United Sttltes. In the later case of Prul!lI v. Williams. 623 So. 2d 1115. 1116 (Ala. 1993), the court affirmed the circuit comt judg· ment without discussing its standard of review.

Remedy on Remand The district court may mllke an order modifying or correct· ing the aWlird where there W!lS lIny evidence of miscalcultltion. where Ule arbitmton iuued an award upon a matter not sub· mitted to them, or where the award is imperfect in matter of form not affecting lhe merits. 9 U.S.C. Section 11. The FM does not prescribe what action is to be taken if the award is vacated. It does say that where an award is v"cilled, and the time within which the agreement required the award to be made has not expired. lhen lhe court may direct a rehearing by the arbitrlltors. 9 U.S.C. Section 10(a)(5). Th i~ doesn't explain what remedy exi~ts if the arbitrators' award is vacated and the time has expired. In Green II. Amerifech Corp .• 12 ~~Supp.2d 662 (E.D. Mich. 1998), the lime fo r iuuing the award had expired long before the award was issued: indeed. WlIH.mH....... WIIII_m " . "_,..II. fl 6 ~1t\eI With tNt MOOlle !lfm 01 JonnBtone, AlIBmI. ~Iey. Gotooo & HII" t•• L.I.C. arid ~., 8 E ftom Valt iJn/v'I<,uy ~rId '" 1.1..9 !tam thfl Llnlv"tllly 01 \lVg,",a He fI • PII! eM~ 01II"1II AUlrI>aml SUitl BII Buelne.. lOItsllld An1ilf~'t Seetlon and ' ltCently MfV.cI ... j..:~1\y mvmbor 01 tho AOtCLI! &orrinar on 1II1)J1r11ion.

dOg'"

that delay WM one of the: grounds for the petitiOI'! to vtlcate. The district court vacated an arbitrator's award and remanded to II,Itw arbitrator. The court observed that remand to the original arbitrator is available when an arbitration award is "ambiguous." Nevertheless, the ~'M does not compel a rehearing or remand to 3 new panel. In Forsythe Jlltematlolla/, SA /J, Gibbs Oil CcmpulJ.11, 915 ~~2d 1017. 1019-1020 (5t h Ci r. 1990). Ihe di$trict (Qurt V:'Cilted the arbitrators' award and remanded thc matter to a different arbitration panel for furth er arbitration. The court concll,lded thilt if the dinrict court had remilnded the matter to the 5a.nlC arbitration panel for clarification of its award, it would not be ap]!ealnble. ld. at 1020 n. 1. By remanding the clISe to II different arbitrlllion panel. however, the award became appealable.ld. at 1020. The appellate court concluded that circumstllnces did not warrant v/lcatur. so it reversed the district courland did not review the question whether the remand should be to the same or a different panel, In MonIes Il. Shl.'(ITSon l.ehmoll Orolliers, IIlC., 128 F.3d 1456.1464 (11th Cir. 1997), the appellate court reversed Ihe district court's (Qnfirmution of tht IITbilrution awtlrd lind rt manded the case to the district court with instructions to refer the mailer to a new arbitration panel. but the court did not di~cu~~ whether renull'ld to the ~me arbitration panel was an acceptable alternative. In 'TI!amsfers-Em/Jloyor l.ocal No, 945 PlJI'ISion Fund II. Acme Sanitation Corp .• 963 ESupp. 340, 353 (D.N.J. 1997), the arbitrator based his award on evidence presented at a hearing which the unsuccessful pMl), did not attend 3S the result of an "inadvertent misunderstanding." The distrkt court decided to vacate the award (which amounted to iI default judgment) and remanded the case to the original tlrbitrator to reopen the arbitration proceedinltS to allow the un SU ~Ce5sful party the opportunity to pre$tnt it~ defen~es.

Conclusion Although it is frequently repeated that an arbitrator's award is final. the cases discussed above show that there are many grounds for review. Indeed. these cases sl,lggest that if a COl,lrt can be convinced Ih,11 an award is a substantial injustice to the unsuccessful p.lrty, then the court can find It vtlJid ground for vacatur. •

By Marion E. Wynne

toot to auiat the client with serious tax probl~ms. Both Chapter 7 and Chapter 13 have helpful procedures and remedies to relieve the client's laX burdtn.

he American people llre currently burdened by

some of the high· est taxes in history. The median two-income family now pays m.521 in fed · eral. state and loc~1 taxes. This is 38.2 percent of its income. By 1999. taxes will constilute 20.3 percent of CroS$ Domestic Product (CDP). This is the hil/hest lax level on the American people since 1945, the end of World WOlT Il ,' In 1948, the average family of (our paid approximately 3 percent of ilS income to federal taxes. By 1995. this payment had grown 1024.5 percent of the family's Income. The average family of four in 1995 paid about 40 percent of itJ income for fedual, slate and local taxes. Bdore 1913, there was a constitu· tional restriction prohi biting an income tax. The Unltcd SllItt$ Constitution required any direct tax to be appor· lioned among the slales according to popu1n.tion, [n 1913, the 16th Amendment removed this restriction, Later that year the modern income tax took dfecl. In 1913, the total tax per person was $23,35, 8y 1948, it was $349.06. In 1964. the total tax per person was $722.78. By 1983. it was $2,845.38.1 The tax burden has become $0 Itreat thM Ulere is an enormous amount of unpaid taxes due and owing by the American people. The uncollected lax d~bt at the present time is oW!r $40 bi!·

The Installment Agreement lion dollars,' Many hardworking Americans are suffering from Ihe intense and heaV)'.handed collection mta$ures of the Internal Revenue Service (IRS). ~:very day. the IRS is hammering cith:ens who owt back taxes. Some dc:~(>rv(> it... nd $Orne don·t. However, they are all tntilled to representation. ru an attorney, )'UU are in a select chm o( pro(wion:a[s who elm represent clients before the ms. YOu can help your client (oce the ms collec· tion proce" and deal with it In the way that is in his best interest. You can help )'Our client $ave money and resolve his tax debt problem. Tht purpost of this art icle is to dis· cu" ways in which you can help your client who owes the IRS. You can auist your client in negotiating an install· ment agreement or an offer in compromise. You can help your client abllIe penalties and interest. You can direct your client toward compliance and helll him ~tay in (:ompli,mce. The Oankruptcy Code is another available

Section 6159(a) of the Internal Code (I Re) authorizes the ser· vice to enter into installment payment agreements with delinquent taxpayers, An installment agreement is a voluntat')' monthly payment schedule agreed upon by the debtor and the ms. The benefits of the installment agreement are that once it is entered into, wage iIllrnish· ments and blink levies can be reltued. The client will have a set payment plan he can factor inlo his budget. I\J long lIS he makes Ihe plan payments, the ms w11l1(>3,ve him alone. There are risk$ in contactlna the IRS Service Center about an itutallment agreement The scrvict may initiate II fast attack on the client's assets or rfCord a lien once they leam a laX professional is involved.' An itutallment plan dOts not suspend the running of inlerest on the tax debt. Thus, a claim may double or triple in size before it is p.1id 0«, The IRS will wilOt complete nnllncial information on the taxpayer before agreeing to certain payment terms. The [~evenul:

client will halle to fill out Form 433A. which is a financial statement in a form ilPproved by the SeNice. If )'Our client is in business for himself, then he will hilve to complete the Form 433D. The IRS collection procedures determine the monthly amount. These procedures allow the debtor /I ctrtain ilmount for expenses based on national and I()C.\I standards for necessary IIlIing expenses. The me authori:r:el the SeNice to alter or cancel an installment agreement if the taxPtyer prOlllded incorrect financia l information, or i( the taxpayer fails to make the payments 1}5 prOllided In the ngreemenL' Also. the tllxpayer must prollide updated statements of his finllncla l condition upon request.' The inslrlttment IIl:lteemenl SCMI a dif· (erent client than the offer in compromise. The inslal1rr'ent agreement is al)propriate when the i<IXJ)Olytr cannot p.'\y his tax liability in a lump sum and hM 1'10 equity in lISSCt! against which to borrow, but has el'lOuilh income to pay the tax

over a period of time. If the taxpayer has limited lWtlli and insufficient income to pay the tax after paying the necessary loorlU,ly living experue.~. then the offer in compromise is the bettcr procedure. The IRS now encourages U5C of installment agreement! and offen. in compromise when the taxpayer's financial situation milku the procedure! appropriate.'

Offer in Compromise (OlC) If the inS accept! an offer in compromise, the tax debtor will be allowed to pay the tax liability by p~ylllg ,I l e~se r amount lhan the full amount In com· plete satisfaction of the liability.' T h i~ lesser amount will satisfy the tax debt, interest and penalties. If the ms will accept the offer in compromise the tallpayer may be able to avoid filing (or relief under the bankruptcy code. lIoweller. counsel should be alert to the

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unpredil'l.ble "Yoo mly acl r.o:w buSnldt Ih't momll, YOll may ,IIII. A re (CfTIIl S)'Slem. by ~Qllltasl, tlin bunll III I slrady ~(n:lIm or I\I:W chelliS. momh allcl monlh, ~lII lfl~r)'e'" "II f.:cls wenl to 00I1~ 10 (11C' omce evc!)' day huo"''''3 Ihe phone w,lI rill4 and new buslIlc" be un Ihe II~," he SlI~S Ward, who hIlS IPlljjlll h, .crl:1rnl S~!lICm 10 nl"lOSl ("'0 lllol'~'cllftwycn Ihruughout lht US. hYI IMI ~I lawym' markC1in, ii, ":I()IlIC"Mrc MIWlIC'n al/IKlO\l' and 1100' c~I§lml " A. D result, lie 11)10, lhcl laW)'CT ",110 1e1lffl5 even. few simple I1IwkC1.nil 1f(lmiq\lel eM JlMd <lUI f'iom lhcl ron'~IIH:1n MWhC11 IhIt happ!:n,. IIl:1lm, cllcn(I., ellY" Ward III1S WTllIen • rew rq'IOf1 ml,lled, Mil"" To G" More Cllf:llilin A Mo. 11I1·lIu l' .,11 NIl" - Gel All \' u r!M ",11,,11 reveal, IIow any II"')'CI' can usc this "1II1kel.n, 'yJlCt'A 10 IJCl ~ cllml' 1IIId Inm:;ue th: .. income. To gel I FMU : Cop)', eatl 1 -i04).~1462 1 for I 24.ho\lr rftC mordtd message. H

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tolling which is Incurred when lin o(fer in compromise is made. The 240.day period for asseumelll is a time requirement which must be met if 1I particular laJC is to be discharged. This time requirement is tolled during the period an offer in compromise is pending plus 30 days.' The new Taxpayer Dill o( Righl$ (Taxpayer Bill of RighI.!; II I) makes it easi· er than ever for taltp;cytl1t(l get an offer accepted. AJ of July 22. 1998, the illS must adoptaliheral accepl1lnce policy for offen in compromise to pr()llide an incentive for taxpayers to continue to file tall returns and l)'lY their UtlIes, COllgress has instmcted the illS that it should make it easier for taxpayers to enler into offer ill compromise a~ reements, '!Wo principal reasons exist for the mS to I'I cccpt nn OIC. They are (I) doubt as to liability and (2) doubt as to c(lllectibility. If the SeNice determinC5 that the colleclion ability of tht gOllCrnment is good, then the tax debt cannot be compromised, If the taxpayer has assets sufficient to pay the tax Ihis procedure will not work. It will not succeed if the laxpayer has sufficient income to meet necessary lilling ellpenses and pay the tax debt. A necessary lilling expense is defined by the Service, nol by the lax· payer.1I To file an OIC the taxp;l)'tr must submit the offer on Form 656. lie alliO must file a current financia l statement on Form 433-A if he is lin IndillidUll1 taxpayer or a sole proprietor. The finan cial information is pul on rorm 433·B if the taxpayer is a corporlltion or pnrtner· 5hip. Form 433·0 is additionally used (or 4l ~ol e proprietor's business, Coun5cl ~h ou ld siren to the taxpayer the importance of complete honesty in completing the fin;lI\cial forms, 11 is a felony (punishable by II $10.000 fine andior up to three years In prison) to make a false statement on Ihe financial (otm~ or other documents filed in support of the ole. A taxpayer who tries to conceal or undeNalue assets is courting prose· cution. The s.1me is true for one who does not disclose all $Qurcu of income, Ai this writer often tells clients consid· ering bankruptcy, the bankruptcy court

is there to help an honest debtor who makes II full disclo.~ure. But, it is a fed eral fe lony to make a false statement on your bankruptcy 5l:hedulu. The ~me Is true regarding offers in compromise. Once the Service accepu an OIC, it can still be l().!it if the taxPllyer is not careful. The taxPIlyer must file all future returns In a timely manner and pay all estimated taxes when due. If he dots not, the Service clln cancellht agreement lind seek collection of the full In>: debt Ihllt was compromised." The statute of limitations for assessment is suspended for the period of timt the OIC is pending and for one yellr thereafter. The offer is considered pending uillil the compro· mlsed IImount is p.1id In full. The atteplance of Ihe offer terminates the taxpay· er's right to challenge the amount of the lax debt thl\t has been compromised." The ole is 11 tremendous benefit to the client if it i5 successfully COr\\plcted. Your client will be able to SIItisfy past due tax debt. InciudinJ( interest and penalties. (or a fr<w:tion of the actual amount owed. Clients who have offers accepted and who carry out the provisions of the agreement are often able to avoid filing bankruptcy.

Abatement of Penalties and Interest The inS IlSSWe5 penalties fOf many reasons. There is a pen.'lJty for (ailure 10 file a return. filinl! ~ relurn Inte (even 00t do'y late), 5ubslanti~1 underpa}'menl of estimated taxe~ or the final yearly tax OOII(l<llion, ~gJli!ence in filinll the retum. and (or civil fraud. The assessment of pl:nallies can be wted for reasonable cause. ncasollllble COlUU can be serious IIlnes.s, destruction of tax records by casu· alty. inability to oblAin tax records, ilod reliance on advice bv a c.ompdent tax advisor." ThIs is an area that calls (or some c.reativity on the ""rt o( counSel (or the tillCpayer. '11f inS hilS abated pl:n,11t1es for such rea500J as the Culf War, dishonest bookkeepers. alcoholism, drug addic· tion. bad busineS5 dtcisions. and numer· OU$ other reasons. The ms will seriously

consider /looting a IWnalty when lhe failure causing the pen.,lty W1l.S something oot.side the ooolrol of the taxpayer. The request for penalt)' ab.:aternent can be in a [eHer 10 the IRS Service Center. The teller should thoroughly cxpbin the (actors that caused the particular failure. Corroboration of the e-.entJ is helpful. Items such as medical reports and statemenu from fact witnesses will bol.1ler the request. A request for abatement of II penalty based on reliance on erroneous inS advice is made on Form 843 filed with the inS Service Center where the return was nled. A copy of Ihe intorree! written advice (rom the IRS should Ilccompany Ihe form."

The IRS can abate IISsessOlentJ of interest for ~pecific stalutOl)' reasons. See I.Ite. Section 6404. One reason espedally relevant to the Soulh Alaoomallrea is IhM interest on the underpayment o(lnx linbilities can be ab'lted for individuliis living in presidentially declared disasler Ilrea5. 1' It is not within Ihe scope of Ihis a.rl.Jd~ 10 dis· cuss the other reasoOJ interest can be abated. The reader is referred 10 ute. Section 6404.

Taxpayer Remedies in the Bankruptcy Code When the taxpayer does not have enough Income to pay an installment agreement and he cannot get Iln offer in tompromiu which is within his ability to pay Ilnd when the abatement of inter· est and/or penalties is not allowed or is

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not e n (n,1~h to suffidcntly relieve the tax burden, then counsel must look to the l3ankruptcy Court to assist the client. The Bankruptcy Code offers three avenues of relief: Chapter 7, Chapter II and Chapter 13, This article will deal with Chapter 7 ;lnd Chapter 13. The provisions of Chapter I I are best left for another time. We have federal income taxes, state incom~ taxes, l(lcal property taxes lind local sales taxe$. If a business is involved. there are payroll tllXC$, sales taltes, employr'lltnt taxes and Social Security payments. Can these taxes be discharged in oonkruptcy? In some cases, yes. Personal income taxes can be discharged in bankruptcy, if certain criteria are met. In some situations, silles taxes. excise taxes, property taxes and payroll taxes can be discharged, Whilt are the criteria that must be met before personal income taxes C,In be discharged? ri r~ t , Ihe tall mu~t be over three years otd. tn other words, the tax year in questlon must be three years prcceding the fi ling of the bankruptcy." If the return for 1995 taxes is due April

15, 1996, any bankru ptcy filed before April 16, 1999 will rfsult in the tax being non.dischargeable. If an extension is fil ed, then tht time the threeyear period begins to run is also extend· ed. ln fe Gill/eg, 151 B, ll. 952 (,..1.0, Pia, 1992). The second criterion which must be mel for penonal income taxes to be dischilrRcable is that the tax return must haW! been filed at least more Ihan two yCMs before the barlkruptcy i~ filed." The date of ruing Is the date the return is received by the t:u.ing entity. not the dllte the retutn is mailed b), the taxpayer, U.S. Ii. D'AlJ(Jnzu, 132 B.lt 462 (M.D. Fla, 1991). If the tIDl~yer (ails to fil e a retutn and the mS fil es a substituted

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return for the taxpayer. this docs nol count as 8 return filed by the taxpayer to stayt the two·year period runninR. In re Clemun/s. t07 B.lt 767 (Wyo. 1989). The tax rdurn must be filed by the t11xpayer. Third, the tax return fil ed must be non - rr~udulent and the taxpayer must not be engaged in willful evasion of a tax liability," Understatement or income and fai lure to cooperate with the IRS can De considered evidence of fraud, In re IJclmoll, 160 B,n. 385 (D.W)' 1993). III re era/wm, 1994 Hankr. Lexis 1256 (l3krtcy ~~,O, I'a 1994), is a case th,,\ has a thorOURh discussion of fraud and evasion as it relates to tax claims in bankruptcy. The fourth criterion Is that the tax must be assessed more than 240 days prior to the bankruptcy petition being filed. " This period is extended if an offer in compromise has been med. It is extended for the period of lime the offer is pending plus 30 additional days, Knowing the date of asses.sment is extremely impor\,1I1\. An error in determining this date could calise your client's lax debt to b~ non·di~ch<lrge able. The date of filing the tax return is not the dale of assessment within the meaning of the Bankruptcy Code. III re Hayes. 166 B.R. 946 (Bkrtcy, O.NH 1994). The ms makes the assessment by recording the tax debt o(the taxpayer in the Office of the Secretary of the Treasury. me sec. 6203. 11 lhe taxpayer requests. the Secretary must furn ish the taxpayer a copy of the record of assessment. " he date of the a.~sessment is the date the summar)' record is signed by an a$~es$m~n t officer. The summary record gives the identlncalion of the Uulpayer, the character of the liability assessed. the tax period and the amount of the assessment.- The summary record may De obtained by requesting a copy from the local service center or by 11 Freedom of Information request. CO\lI1sel should request this summary record before ming a bankruptcy to discharge tax d ~b t. Thi$ is the only way to be sure the 240-day period is properly calculated, Even if a tax debt meets the (our tri-

terill, the discharge of the tax debt will not bring complete relief to the debtor if II lax lien has betn filed lind lhe debtor has property to which the lien is attached before the fil ing of the bank· ruptcy. In this ClISt the lien secures the tax debt and the IRS can selilhe property subject to the lien with the sale proceeds Ilpplying the tax debt secured by the lien. In re I't!mm , 62:1 1~2d 477 (1980); In re /som. 95 D.R 148 (9th Cir. 1988): 901 ~:2d 744 (9th Cir. 1990). Properly taxes lUsused more than one year before the filing of the bank· ruptcy are dischilrgellble." Ilowever, $ince these taxes are secured by the property they usually are Pllid rC!lilrd· less of the bankruptcy. Debtors who file for bilukruptcy pro· tection under Chapter 13 C4in also discharge taxes. Chllpter 13 differs from Chapter 7 in thllt II Chllpter 13 debtor pays his creditors II percentage of the debt owed. The unsecured creditors must be paid II dividend that is greater than they would get if Ihe debtor was liquidilled. This allows the taxpayer to pay his tax debl ovtr an extended period of up to 60 months.- The taxing author· ity is bound to the payment plan approved by the court. The collection tffOTU of the Iluthority are stayed Il5 long as the debtor is under Ihe protection of the Bankruptcy Court." Under Chapter 13 more types of taxes and penalties may be dischargeable. There are taxes. which are not dis· charged under Chapter 7. but are dis· charged under Chapter 13. Taxes that are nol discharge11ble un~er Chal)ler 7 because of Section 523 of Ihe ilankruptcy Code arc dischargeable under Chilplcr 13 because the tax por· tions of Section 523 do not apply in Chapter 13 casts. Even in Chapter 13 the debtor must pay priority laxes In full with interest. BUI. the debtor may not have to pay non·dischargeable taxes that are non.dischargeable under Section 523. When a \.aJ(payer files for relief under Chapter 13, the IRS may not continue to add penalties to the tax debt owed. In some cases.!!\Itn post.petition interest ceases. Unsecured priority tax debtJ do

not accrue interest under Chapter 13.to Il000vtr. fully ~cu red tax claims are entitled to accrue interest during the Chapter 13.- However. in the Chapter 13 plan the Interest ralf paid 10 the IRS can be substantially less than would be paid on the tax debt outJide of the Chapter 13.In some casts. even payroll taxes and sales taKes ffiilY be discharged. If the Chapter 13 plan provides for full pay. ment of priority tax claims and the IRS fails 10 file a proof of claim before the bar date. the tax can be discharged with no paynlcnl to the ms. This rc~ul t M5urlle~ the lax claim is also unsecured." Thls is also true with regard to the 100 percent penally assessment.- The 100 percent penalty is the name fo r the obligation imposed on the person who is responsi. ble fo r collecting and p,lying employee withholding taxes and fai ls 10 do so. In fact, the 100 percent pen(llty is (I tax.

and it is treated as a tax in the lJankru ptcy Code.As was discussed earlier, under Section 523 taxes for which returns have nol been filed for over \Y.'() yean; before the filing of the bankruptcy are not dischargeable under Chlpter 7. These taxes may bt reduced or even relieved in a Chapter 13 composition plan. A composition plan is a plan in which the unsecured creditors 1Ire paid lusthlln 100 percent of their claims. The 501me is true fo r taxcs that have not been assessed 240 days before the filing of the bankruptcy.

Conclusion Use the Installment I)lan to help a taxpayer whose tax debt is not too large to be paid in regular monUlly payments over 11 reasonable lime. The offer in compromise is the path to take if the

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It is ordered that Rule 6.B., Alabama Mandatory

Continuing Legal Education Rules and Regulations, be amended to read as follows: "B. As SOOn 8S practicable ohm J8flUllty 31 of each yeor, the Chairmafl clthe Commission on Continuing lll{Jll Education silalllllrnish to tile Secretary Of the Alabama Stale Bur 8 list of those a1tomevs v.t1o have foiled 10 Irle either en annual report for the PIIMOUS calendar year, CIS requued by Rule 5. or 8 plan lor making up the dc/iciancy as permitted by Rule 6A In addilioo, 8S SOIlfl as Pl8Cticable altef tho firSI anlllver$ilty 01 an IIttomoy'S admission to tho Bar Of of an attorney's being licensed to pmctico lew in Alabama, the Chairman shall fur· nlsh 10 the Sec:felary 01 the Alabama State Bar a lisl of those ottorn$y$ whowere requirod to complete, but failed to complete, the professionalism course fllquired by Rule 9A "The Secret8fV shell\horeupon forward Ihllslliisu 01attorneys to the ellairman of the OiSClpllfl8ry Commission "Tile Chairman 01 the DISCiplinary Commission shall then SeMI, by COft lied mall, each allOfney whose name appears 00 those tisls wllh an Ofd8f 10 shOw (auUt within si~ty ~50) deys !i.o. Within 60 days from Iho date of Ihe order) why tltt! allorney's liConse should 001 be suspended a' the e~pirallon of the sixty 160) days. AfYoIallorney so nOllhod may Within the sixty (60) days furnish tho Disciplinal'/ Commission wllh an affid<lVit (a) indicaling that the allorney has in fact earned tho 12 required ClE crodil! during tho preceding calooder yertr or has since that dato earned sufficient credit; to make up any deficiency fOf :1Ie previous calendar year or (b) indicaTIng thatlhe allorney has in foct comploted the professionalism course reqUired by Aule 9.A or Ie) SOiling fouh a valid exeu$ll (illness or other cause) for failulO 10 complv With eithor requirement. "As soon as practicable after March 15 of aach yoar. the Chairman of the Commission on Continuing legJl Education sholl furn ish Iha Sec rotary 01 the Al abama Stalo Bar a sup' plementalliSI of eny Ollornoys who filed a deficiency pion as permilled b', Aule6A The same procedures. requirements. and sanctions applicable to the attorneys on Ih,s initial dolinquemlisl shall apply to tho attorneys on this supplemental 11$1. "At the expirati::ll1 of Sl~ty (601 days from tltt! date 01 the order to show couse, the DISClplmary Commission shall onter an ordor suspending 1M law license cf each attorney wtto has not. PUISlI8nt to the third paragraph of thiS Aule 6 e" fried on aUrdavl1 that the Disciphnary Comrnission considers satisfactory. "At any tima within ninOly 190) days altar the order of suspenSion, an attorney may file With tho Disciplinaf)' Commission !In affidaVit indicatif\{l tllat Ihe attornny has earnod 12 approved ClE credits (or the number of cre<lits the attorney was deficient) and wants thOse credits assigned to the year fOl' which the attorney was In noncomp.ooce With Aule 3, or indicating tnal the attorney MS completed tho professiOO8hsm coursa requilOd by Aule 9 A. If the DiiClplinaf)' Commission finds ttlo affidavit SSII$foctory, II $hall forthwith OnHtr an Ofoor reinstatlf\{l the 01l0rflOy. -At any lime beyond nrnety 190) days from the ordlll of suspension. an attorney shall file with Iho Disciplinary Board on alllda~itlike tha t doscrrbed in Ihe preceding paragraph, but such on attorney must frle with thaI allidavlt a petition for rOlnstatement (see Aule 28, Alabama Aules of Disciplinary Procedure). "An attorney may appoallo the DISClplmary Board hom an order of StlSjlOnsion or an ordel denyinQ f8lnstatemerrl onlered by the Disciplinary Commission A(ldilionally. any alfocted attorney may appeal any action of the DISCiplinary Board to the SJpreme Coort In acwrdol'lC1l with 111& Aulos of Disciplinary Procedure It IS further ordtred that Ihe following note from Ihe reporter of decisions be added to follow Aule 6: "NOle from the reporter of docisions: The ordor amondlng Aule 6.B., effective September 1. 1999. is published 11'1 lhat volume of Alabama Reporter that contains Alabama cases hem So 2d" It IS lurther ordued that this ameodment be effective Septomber I. 1999 Hooper, C.J.. and Maddox. Houston. Cook, See. lyons. Brown, and Johnsl')lle. Jj" concUI

ALABAMA LAWVER

Assistance Program Are you watching somEone you care about self-destructing because of alcohol or drugs? Are they telling you they have it under control?

They don't. Are they telling you they can handle it?

They can't. Maybe they're telling you it's none of your business.

It is. People entrenched in alcohol or drug dependencies can't see what it is doing to their lives.

You can. Don't be part of their delusion.

Be part of the solution. For e~ef)' one person with eloohotism. at least fivo other lives are negatively atfecled by lhe problem dflnlGng The Alabama Lawyef Asslstal'lC1l Program is available 10 help m&mbofs 0' the legal profeSSion who sutler from alcohol or drug dependeocios. Information end assistance Is also available lor Ihe spouses. family members and office stat! of such members ALAP is com· milled to developing a greatOf ewaro· ness and understanding of thIS Ilinoss within the logal profession. If you or someone you know needs help coli Jeanne Marie Lestre IALAP d_ectorl at (334} 834·7576 (a confidential direct lina) or 24·hour P8QO at (334) 395·0007 All calls are confrdontial

I~PlU"80Q

lOUD,

3)'

I•

Stressl Stressed! By William C. Freeman, M,D.

siren (slrel' (series) n. 3(1) mcnlal or " hysical tensiOIl or slrain, b) ur(p,mcy, pressure. etc.. caUSi11g this. Strwllllti (strut) ad). adjective describing monifestaliollS of

stress stress.d out (stl'l?$I' aut~ (ldj. tired, l1(!rvous, or (/eJlf{!ssed as a result of OtH!rwork, mClllal pressure, etc. ,1!quiIJ(JI(!1l110 1I0lln 'humour/

Point Lawyers are in 8 stressful occupation. f.1ost people think of their occupalion as stressful. Even lhe guy who tub mattrtSSt$ for sleep com· fort feels slrewd at times. There is even some sense of pri(!e exhibited or felt by most of us who perceive OUI'M.I\I(!~ a..<; I\;)ving a "stressful"job. In reality, though. the leg.l1 profes.~ion is an extraordinarily stressful OCeup;ilion. Qccup.1tional stud· ies have verified Ihis. Studies have alilO veri· fled a signifl<:antly higher incidence of stress· related problcms and bumout in the 1eg.ll profesS'on. So why is being a lawyer so stffMful ? Among the man;, reasons are lhal lawyers deal with people, people who are often in canAiet Imd str~ themselves. 1..aW)'frs face opponents in mo.st endeavors. The pressures to produce. mllnage billing and meel dea(!lines often require long workinlt hours with little time (or family and re<:rcation. There is the ad(!ed stress of ~inll in /I profeuion with iI col· lective bounty in place since Shakes~arelll1 times. The quote, "First, let's kill all the lav.yers" may be an indication thllt IiIwyen are nOl the mOSllovt.'d and respected group ~rouod. For many. this added to the equation makes pra<:ti<:ing law 35 somewhat of a point to be proven as oppo~d to a profession 10 be practiced.

Point Lawyers get stressed. Lawyers cope. Mechanisms o( stress and the stress reaction are basically as fo llows: Aseries of external events interllct with the inler.

01\1 mechanisms of adaptation of the individual which includes the coping strategy of th.l t individual, This resulu in either adequate or inadcquah: management of that stress. Inadequate handling of stress can result in a multilude of problems which include emotional and physical. These, in turn, can produce major di(fic\dties

ill the interpersonnl, occupational and social areas of ont's life, Coping strategies themselves often can <:om· pound the problem. Think about lhe lawyer who turns to alcohol or other substiln<:es in an attempt to cope. As noted previously. external events include Ihe Ihinll:5 that lawyers hllVt to deal wilh on a daily basis, lind. again, these are extraordinary. The internal me<:hanism o( the individual (reactlon5 or methods) which nre, (or the most pllrt, lIulomatic and un<:onstious, kick in when the indlvidulli is st ressed. Apllrt of Ihis is genetically deu: rmin~d and a parI is learned behavior. This part of Ihe me<:ha· nism is possible to change but $()mewhlll difficult (or m05t o( uS to do. External events may also be difficult to alter. This brings us to the third pMt of the equation which is a <:oping strategy, the component that often makes or breaks the individual and also the component that 15 most amenllble to change. A<:ommon term (or this is stress management. Most rJ us prllctice this in varying degrees an(! know the Jleneral rules of exertising consistently. cating right. getting enough rest, and taking bruits. I-Iowever, many of 1.1$ also engage in maladatlti~ stTts! management te<:hniques $u<:h as ex<:eulve use of alcohol or drugs and othcr behaviors that can be detrimental.

Point: Lawyers Need Help. Cenerally, there are two types of stress that are pertinent to this (!i5<:our~c, acute ~tre5S and chronic stress. Acute streu <:an be exemplified by being <:alled on in law 5<:hool. At that moment the ' fig ht or night' rea<:tion be!!:ins. Asmall arca of the brain called the

Symptoms of stress include: PUYSICAL Tension

Fatigue L.1ck o( motivlltion

Ilypcrvigilancy

Physical dl$orders: Ulcers. colitis, hcadachu, alierAiu. aslhmll,

Il.,\U-

Overwhelmed

• Maintain realistic eXllcct;ltif,JI1$ o( yourself, personally and D rofc~ sionally.

I.ow energy Depressioll

Sleep disorders

Fatigue Ifeduced Sfxual drive

Frequent colds/infections

• Ask for help.

OCCUPATIONAL

laic to or absent

(10m

appoint.

mcnlll or CO\lrt llppenrances

Vailure to return phone calls psrr;1I0LOCICAL

Worry

~'orgel(ul

Disorgani7.ed omc!: nnd work

Fear

Isolation (rom colleagues

fliAhVFlight

Sadneu

Panic

Eatin!!: alone or not e.llting

Job pcrformnnce Disconnecti on/isolation

Accident frequency

• If you havc a problem with alcohol or drugs calilhe Alnbanu Lawycr Assistance I'ro"ram for confidential assist.lnce,

Obviously it is in our best interest to learn and practice preventive coping techniques belore stress bf'comu overwhelming.

loclls coorIJIIJ.' starts pumping adren:lline lind the vagus

nerve becomu activated and sends signals to the rest of the body. This aCCounll for lhe rapid heart rate, Swtaty palms, nel'VQus feeling and other reactions that occur under these circumstances, Chronic stres.s, which Initially has a simi lar mechanism, at some point recmill other areas of the brain, Therefore, in addition to anxiety, and the "fight or night" phenomena, Individuals wltl experience symptoms of depression. anxiety and other emotional discomforts that do not subside when the stressor Is removed. l10w one manages the acute stre" dictates the occurrence or nonoccurrence of the chronic stress reaction. I have always bf'en somewhat amazed at how we are able to approach our buslnts.ses in a very efficient manner when it comes to identifying and $Olvin" problems but are not very good at laking our own inventory and treating ourselvcs in the same manner. We are either in denial about the problems we do havt or make excuses not to deal with them, We continue to proceed day to day, month to month, and year to year relying on the Jame old patterns of behavior, expecting relulll to be different unlil we eventulll1y are stressed out or burned oul.

• Set and rllliintain personal and professional boundaries. • Thke C<lre of )'Ourself I)hysitally, mentally and emotionally.

behavior

Confusion

SOt'fAL

Suggestions include: • Break down projects into man· ageable pieces. Thke Ihin"s one day at a time. one piece at a time,

1-lol'£lessness

Increased use of alcohol

SCII. high blood pressure

Symptoms of burnout include:

Get serious aboul mlLnlLl{inl{ )'Our stren. You'll fcel beller. function bettcr and probably see )'Our fam ily and fricnd$ smile more oftt n when they arc .<!round )'OU. •

Point: Lawyers should take inventory and corrective action. It is especially critical and n«es.sary that the indivitLallawytr ptriodically take Ii pcrsonallnvcntory, We need 10 realistically look lit the components or streu, the cxternal factors in our lives. the internal facton of OOallllltioo unique to each of us and Ihe coping mccll.lnisms we employ to Il.lndle strusful situations. Arc they workinll:? If not. why not? \V1l:!t arc some alternatives .....e clin choose? II b always worthwhile to ask two trusted friends or fam · ily member:s who c.m be honest and objective to give)OO feed· back. We moo to apPTOo'ch ourselves like a business. Address the problem areas, and hire a consultant i( needed (slres.s manllJ!e· men! professionaLs), Tht purpose is to identify and inltl'Vt.ne mly to haJllhe procw before things get out of hand and our well·bein" is compromised. Stres.s will al\'.'3)'5 be with ~. • ..."., C,

F - . M,D, "'.0.

WIlIIaom C. .._ . !I In .... ~ pr_D1 gtnlllII~"" MCTllgor'IItIy ~ & AuoelA1M .... hM bWI • ~ III !hoi ~ IMIII Bar IIIr10I 1ge1 IIld It rTWdic:eI dIfwc10r IQr MNd'Iaven EmrllioMI HMI1t'I P\o(j!.... ~ MedIctI <:enIII,

auoc:_

""'¥'.y

ItiPTu .. o~n ".00 I "3

It is ordered that Rule 10, Alabama Rules of Disciplinary Procedure, is amended to read as follows: "Rule 10. Nancompliance With Alabama StaID Bar Mandatory Cominuing lllijal Education AulDS (e) 路Suspension lor Noncompliance. (1) "A lawyer is $ubie<:IIO Ihe comlnulng lellal education (CLE) r8Qulnlment of Aule 3, Alabama Slate Bar Mandatory ContinUing Lagal Education Rules and Ragulations, and to the professionalism leQuirernsrit Of Aule 9A, Alabama State Bar Mandatory Continuing legal Education Rulos and Regulstions. and will be doemed 10 n01 be in compliance with those rules if the lawyer, (AJ "Fails to 88m twelve 112) approved

elE ClCdits by December 31 of 8 particular Vllsr;

(8) "Falls 10 file ,m annual report 8S required by Rule 5, Alabalnl State eSI Mandatory Continuing legal Education Rules and Regulations;

(e! "Fa Is to complete an approved plan for making up ClE credit deficiencies as required ~ Aute 6, Alabama Stete Bar Wlendatory Continuing legal Education Rules and Regulations; Or

(m "Fa Is to complete the professionalism course as required by Rule 9A, Alabama State Bar Mandatory Continuing Legal Education Aules and Regulations. 121 "As soon as IS practicabte after January 31 of a!ICh year, the Chairmen 01 the Commission on Continuing legal EdUClItion shall furnish to the Secrawry of Ihe Alabama SllIle Bal Ihe list 01 those law/ers deemed not in complianca with Aula 3, Alobama State Bar Mandatory Conllnulng leg(ll Educaiion Rules and Regulations, 131 "As soon os practicable after the first anniverS<lry of a 18...-;e(s admission to the Bar 01 of a lawyer's being licensed to p'actice law in Alabama. the Chairman of Iha Commission on Continuing Legal Education shall furnish to the Secretary 01 the Alabama Stale Bar the list 01 thosa lawyers doemed not in compliance wi th Rule 9. Alabama State 8ar Mandatory Continuing legal Education Rulas end Regulations. (41 "The Chairman of the Disciplinary Commission shall then serve, by certified mail, each lawyer whose name appears on the tist com pl1ed pursuant to paragr8pM lallZl and lal (3! above with en order to show cause. within si~ty l601 days, why the lawyer's license should not be suspended at the expiration of the sixty (601 days. Any lawyer so notified may, within sixty (601 days, lurnish to tha Disciplinary Commission an IIffidavit lal indicating that Ihe laWfer has complied with the ClE requirement before the expiration of the sixty (60! days, or Ibl IndiCAting thaI tile ,1II0rney has comple1ed the professionalism course required ~ Rule 9A. or Ie) ~etting forth 0 valid oxcuse for failure to comply with either requirement because of illness or other good cause. l5) "At the expiration of sixty l601 days from Ihe date of the order 10 show cause,1he Disciplinary Commission shall enter an order suspending the license to practice law of each IO'N'fer who fails to file an affidavil satisfactory to Ihe Disciphnary Commission as descrillld in parDl/rDph la! 131 above. IB) "AeinstatlJT"lent. III "At anI' time wilhin ninety 1901 days after the order of suspension, 8 lawyer may file with the Disciplinary Commission an effidavit indlcatWlg compliance wi th Rule J or Rute 9 A.. Alabama Stale Sar Mandatory ConUnuing Legal Education Rules and Regulations. and. if the affidavit is satisfactory to the Disciplinary Commission shall forthwith onter an order reinstating the lawyar. 121 "If a lowyer has been suspernloo by the Disciplinary Commissicn for more than ninelY (901 days, the lawyer shall be reqLlred to file with tha Disciplinary 80ard an affidavit. as described in paragraph la) above. together with e potitlon for relnstatemant cs provided in Aule ZIl of these Rules and Appendix A to thesa Aulas. Ie) "Appeals "A lawyer may eppeal to the Disciplinary Board from an order 01 su.pension or /In order denying reinstatement entered by 100 Disciplinary Commission Additionally. an allotted lawyar may appeal the action 01 tha Disciplinary Board of the Alabama Supreme COUll in aCCOrdance with the procedure set out in Rule 12111 ot these Aules." IllS further oldared thet Ihe fOllOWing nOle from Ihe reporter ot decisions be added to follow Rule 10: "Note from the reporter of decisions: TIle order amending Rule la, efteelive September I, 1999, is published in that volume Df A18b8fT18 Roponsrthat ~ontains Alabama cases from __ So. 2d.It is turther ordered thai thiS amendment shull be effective September I, 1999. Hooper, C.J., and

~J4

UPTU"O~~

1000

Maddo~,

Houston,

Coo~.

See. lyons. Brown, and Johnstone, JJ., concur.

ASB Pro Bono Award Winners F

ive Alabama attorneys provided outstanding service to the Alabama Slate Bar Volunteer L..av.ryers ProQram and were honored with Ihe 1999 I'ro Bono Award at lhe stille bar's Annual Meeting in Birmingham. The recipienlJ o(lhls year's Pro Bono Award are Jamu R. Seale. Kim Oliver Ward lind Melinda !'II. Walers, all of r-1onlgomery: Kenneth C. Handall of Tuscaloosa; and Victor II. loU. Jr. of Mobile. Seale is in privat~ practice in r-1ontgomery with the firm of Robison & Belser and is president of the board of trustees of the Alabama Law Foundation, Inc. Through his work with the Foundation, he has assisted the \ILl' in focusing on its mission of auisting individuals. Ward is the director of lhe state b:lt's Mandatory Continuing !..egal t:ducation Department. She "rved as the .second director o( the VLP, from Aullust 1995 through December 1998. durinl{ which lime the program was expanded into tvtry county in the state. Waters is the executive director of Legal Services Corporation of Alabama. She was director of the Volunteer LaW)'i!rs Program (rom its inception in 199 1 through 1995 ind continues to work with the VLP in the referral of clienlll and through her work on lhe bar's Access 10 Legal Services Committee, the oversight committee of the VL.]l,

Randall is the dean ofthe University of Alabama School of Law. Ue has proÂˇ vided untold support 10 the VLP, not only tilis year but over the past several years. encouraging University staff and student participation in the VI.P. loU is in private practice with the firm of Adams & Reese of Mobile. I Ie recently completed his term liS pre$ldent of the state bar, during which time he championed the access to justice issue, The ASO Volunteer Lm'l)'ers I>rogram provides thouS3nds of hours of (ree legal aS$istanct to hundreds of indigent Alabama citizens each yfar. Program

volunteers provide aceen to lilt justice system which would ot herwi~e be unavailable, â&#x20AC;˘

Of8TOR MANAGfMfNT SOFTWARf UNIOUHY DfSIGN!O fOR COmC1l0NS AnORNm. PRim START AT JUSTSIIOO.

1800817 T457 JS TEC HNOlOGI ES. INC. 1511 WillOWlAWN DRIVI " leHM ONO, VA 23231 www.jllle.CI_

Litigation Cost Controls and the Professional Obligations of Insurance Defense Lawyers By Susan Randall he Disciplinary Commi~ion o( the Alabama State B.1T recentty i~ued 11 formal opinion, Opinion Number RO· 98-02 (rcl>orled in The A/llooma lAwUer', Jam,l<lry 1999), addrC5.lJinll the ethical propriety of cost.cutting measuru impo5{!d by huurance compllnic5 on Ilttorneys retained to represent their Insur~d5 under liability policics. Over the IMt decade, an Increasing percentage liability insurance payments, liS much lIS 40 percent b)I some measures, is attribut· able to dc(ensccosts, In response to risi ng costs, insurance companies have instituted various cost.containment strategies. Some companies require attorneys representing their insureds to submit detailed client bills to third·p.lrty billin" review com· panies (or approval. Insurance companies havt al${l imPQ5ed limitations on insurance defense liligation, inciudinA: ~m.anage ment~ of liligation b)' oon-lilW)'er claintli adjusters who evaluate liability and dllmages, partieipate in seUlcmer\t, lind make recommendations (and in some instances, (loal decisions) concerning prtpariltion and trilll ; restrictions on discovery and use or expel'lS; and prt-approval of travel. litigation sta{(jng, and an)' research eueeding three hours. In reviewing these cost-cutling measures, the Disciplinary Commission orined that II lawyer should oot permit the. insurance company 10 interfert with his or her independent proft5sional judgment in rtndenn" legal service.5 to an insured. Adherence to liti*ltlon management "uidclines which havt that effect conslilulu a violation of the laW)'t:r's profc$$ional obligatiort.~ under the Alabam.l nulcs of Profcssional Conduct. Somt cost control lnillativu are thus permitted b)' tile proressional rules: the insured Is entitled to a defel'lse informed by the lawyer's inocpendent professional judgment- but not to the ITlOSt expensive derense possible. With regard to third.party audits of attorney bills, the Disciplinary Commission further opined that a laW)'er should not disclose sllch information if disclosure could constitute a waiver of client confidentiality or the allQrney-client or work product privileges. These conclusions are basically correct, but the opinion does not provide a complete analysis 0( the potential problenu arising (rom insurance compan)' use of third parly aud ts or litigation management guidelines, and 50 provides only limited guidance for many lawyer5 attempting to assess their professional obligations in huurance defense. The pri-

mal')' problem with the opinion is its premise that only the lnsuted is a cllellt In lin insurance defense. In man)' inst.ance~, this is simply not true, In every instance, the imured is a client: in the absence of a connict of interest, however, both the insurance company and the insured are clients. The I\labama Rules of Professi onal Conduct and Alabama case law recognize that both insurance comp.,ny and insured are client5 in the typical casco Comments to the Alab.lma nules of Professional Conduct 1.8(0 explicitl)' state that both insured and in~urer nrc clients in the normal case. Alab.lma c,ue law similarly holds that an insurance defel\liC typically Involw:s II dual represenl.'ltion. See Mitchum v. l1udgms, 533 So.2d 194, 198 (Ala. 1988); L&S Roofing Supply Co., Jnc. v. St. Pauf!-'ire & Marine Insurance Co., 521 So.2d 1298 (Ala. 1987), Onl)' where tllere is an actual connict of interest does the iruurance company lose ilS client status under Alabama law. Further, recognition or the insurance compan)' a5 a client accords with the realities of the contractual relationship o( insurer and insured. Standard IiclJility policies provide that the insurer has both a "riA:ht and duty" to defend il$ insured and that the insurer has "discretion" to settle $I,lil$ against its insured. In short, by permitting the insurer to exercise substantial control over litigation &g;lil\lit its insured, the insuTlIllCc contract itself suggest.! thai the iruuI'tT is a clienL This article will examine the Disciplinar)' Commission's analysis lind expand upon it in lin atlempt to crfer futthe r guidance to lawyers faced with cost-control tmndates imposed by insurance companies,

Litigation Management Guidelines The Discipllnar)' Commission limits its analysis of the profe$slonal cthical iuues present· ed by insurance comp'lIly cosl-control measures tc lnstances in ..... hich a contliet of interest in insurance ddenst renders the InJured the only or the primary client. Under the one-client view of the insurllnce defense relationship articulated by J)isciplinary Commission, Alabama Hules of Profwional Conduct 1.8, Conflict of Interest: Prohibited Transactions, and 5.4. I'rofessiooal Indcpcndtnee of a 1.aW)'er. COntrol. These rules restrict the ablllt)' of third-P'lrty P'I)'OTS to interfere with. direct or r~gulatt

the lawyer's Independent professional judAment on behalf of a client, Rule 1.8(f) provides: A lawyer shall not accept compenJ;ltion for repreunting a client from one other than the client unleu: (1) The client consents after consultation or the lawyer 15 appointtd pursuantlo an insurance contract; (2) Thert is no interference with the lawyer's independence of professional judgment or with the clientlawyer rel~tionshjp; and (3) lnformlltion relating to representation of a client is protected lS required by Rule 1.6, Hule 5.4(c) prO\'ides: A lawytr shall not permit a person who rtcommends, employs, or pays the lawyer to render legal urvices for another 10 direct or regulale the lawyer's professional judgment In rendering such legal services. Where there Is a connict o( Interest between the insurance company and ilJ inSured, these rules In fact control and the Commission's opinion i~ correct. A lawyer's Ildherence to insurer路imposed litiglltion management guidelines may inter. fere with the lawyer's independent professional Judgment on behalf of his or her only client, the insured, in violation of Rule 1.8(f): such guidelines may also constitute an attempt to direct or regulate the laW)ltr'$ judgment in violation of Rule 5,4(c). A$ the Commiuion conc.luded, An attorney should not allow litigation guidelines, or any other requirement or rUlriction imposed by the insurer. to in any way impair or influence the independent and unfettered exercise of the attorney's best professional judgment In his or her represenUltion of the insured. In reality, however, although there is a notential for conntct in all Insurance derense relationships, no aclual conn lets materialize in many or perhaps most Such relationships. l\1any claims against an insured fall within the substantive coverage provisions of a liability policy as wel1 as the policy's monetary limits, and so dual represent.ltion is possible. Rules 1.8m and 5.4 (e), relied upon in the Commission's opInIon, do not apply to a joint representation where both insured and Insurer are clients. Rule I,8m deals with payment of a lawyer by ~one other than the clien!." Although this language conceivably applies to payment o( a lawyer by a co路client. the more natural reading contemplates II non路cllent a$ thi rd-party payor. The Comments endorse this reading, clarifying that Hule 1.8(0 dots nol apply to a dual representfitlon of policyholder and insurance company. Specifically. the Comments provide: I'aragl'i'ph (0 re<iuires disclosure of the fact that the lawyer's services aTe being paid (or by a third party. Subsection (1) in this paragraph exprusly ruognize5 that in the insurance defense practice, attorneys are appointed by insurers to represent insureds as client!. 1'hf: insurer's authority to appoint counsel springs from [1$ contract with the insured, In the normal insurance deferue rela. tionship where, rQr example, there are no coverage issut$, appoInted counsel has two clients, the insured and the insurer. Hence, the hl5urcr is not (J third partll' (emphasis added).

The Comments to I~ule 1.7 indirectly buttress this conclu. sion, citing as an example of a situation to which 1.8(f) applies, an insurance defense in which ~an insurtr and its lruured have connicting inlerests in a matter arbing from a llability insurance agreement, and the insurer prO\lides special counsel for the insured.~ Slml1llrly, nule 5.4(c) does not apply where both insurer lind insured are cUents. Halso deals with the ~ituation in which a person "recommends, employs, or paY$" II lawyer to render legal services (or Ilnother. In such cases, the person who pays (or the representation cannot interfere with the lawyer's independence and exercise of profeuional judgment on betWtlf of the client. Again, the most IlDturall'fading 0( the prO\lisioo suggests that it applies to non-eJienlJ who pay for legal services for othtrs. and not to a co-ctient ina dual reprtscntation. In a dual client representation, different rules apply and !ht analysis of a lawyer's professional oblig.ltions is more complicated. Most centrally, a lawyer's client, whether singly or jointly represented. hIlS the right to determine lhe scope d the lawyer's representation under R\de 1,2, Scope of Itepre~nlation. Ihile J .2(11) requires the lawyer to permit the cHent to m~ke impor. 1.1nt decisions concerning the representation: A lawyer shall abide by a client's decisions concerning the objectivts of represcntation, subject to paragraphs (c), (d), and (e), lind shall consult with the client as to the means by which they are to be pursued .... Rule 1.2 (c) additionally allOW$ a lawyer to limit the objec> tivts of a representation, prO\liding: "A lawyer may limilthe objectives of the representatiOn if the client consmts after consultation. The Comments (:Iaoorllle: Scope or Repre.entatJon Both lawyer and client hllve authority lind responsibility in the objectives lind mcans of reprcsentation, The client hM ultimate authority to determine the purposes to be served by legal representation. within the limits imposed by law and the lawyer's professional obligations. Within those limilJ, a client also has a right to consult with the lawyer about Ihe means to be used in pursuing those objectives, In questions of means, the lawyer should Wunle responsi. bility (or technical and leg;.1 tactical issues. but should defer to the client regarding 5uch Questions as lhe expense to be incurred.... H

ServIce. Llmil ~ d In Objectives or MUn, The objectives of scope of services provided by a lawyer may be limited by agreement with lhe client or by the terms under which the lawyer's services are made available to the client. . . .The terms upon which representation is undertllken may exclude specific objectivts or means. These nules and CommenlJ make it clear that a client has lht right to determine how much the client is willing to sptnd In defending a litigation, consistent with cost.cutting strategies contained in insurance company litigation management guIdelines. As applied 10 a dual representation, Rule 1.2 ilnd the Quoted portions of the Comments indicate that a client. the insurance company in this context. may Impose various cost controlj on a lawyer's representation of its co. dienl insured,

or"

My such restrictions on the objectivcs dual insurance defense representation, however. must meetlwo criteria. First, the insurtd co-client must consent to the limitation of objectivfS after consultation, under Rule 1.2 (c), Second, any limitation must be consistent with the lawyer's profe$$ional obligations, The insured's consent to a limited reprc~nUltioll, as required by Rult 1.2 (c), cannot be assumed based upon the insurance contrncl. As a matter of contract. the insured cedes to the insurance comllany the basic righls afforded to clienls under R.ule 1.2: the insurance contract gives the insurer substantial righls in controlling litigation against ils insured, including the right to ChOOK defcnse counsel. to require the insured to cooperate in the defense, and to make decisions about settlemert. Ilowcver, the insured's il$$~ nl to the In5urance contract does not constitute consent, under the Rules of Professional Conduct, to a defense restricted in various ways. Even an insured who clITefully read the policy would not likely unde~Llnd lhat the nnture of lhe Insurance defense relation· ship, :md the insurance company's control over the defense, The policy certllinly does not alert a reader to lhe possibility of specific limitations on the defense contained in litigation management guidelines, ~\arther, even if the insurance contr. . ct were clear on lhese polnls, lhe insurance defense lawyer's inde· pendent obligat on to consult with the insured and obtain Ihe insured's consent under nule 1.2 (c) rem.1ins. At a minimum, the lawyer must disclose to the Insured the limited nature of the representation (ttl,lt lhe lawyer's objective is only to defeat or minimize the claim agOlirutthe Insured) and that fact that it is a joint repreunl..'ltion; uplain the insurer's righLS to control the defenst in aocord.1rlu with the Insurance contract; and communiCAte Ihe basic advantages and disadvantOlges of the dual representation. Most insureds are likel)' to consent: a refusal would tt(luire the insured to retain counsel at his or her own expense, Second, the I mited representation must be consistent with the insurance defense lawyer's professional obligations, specifically, the obligations of competence, set out in I~ule 1.1 , and diligence, sct out in Rule 1.3, which must Dr: observed with regard to both clients. The Comments to Rule 1.2 explicitly state that not all limiL'llIons on the scope of representation are permissible: An agreement concerning the scope of representation must accord with the Rules of Professional Conduct and other law, Thus, the client may not be asked to ..gree to representation so limited in scope as to viol .. te Hule J,1 !Competencel, or to surrender the right to terminate the lawyer's 5elVices or the right to settle titillation that the lawyer l1'ight wish to continue, If the lawyer can provide a diligent, competent defense to the insured consistent with insurer. imposed cost controls, then no ethica.l problems arise, However, if insurer-imposed cost controls impair the defense lawyer's ability to provide the insured with a competent. diligent representation, a connict of internt between the two clienl$ arises and Rule 1.7, Connid of Interest, applies, Specifically, Rule 1.7(b) provides: A lawyer shall not represent a client if the representation of that dient may be materially limited by the

lawyer's responsibilities to anolher client unless: (I) TIle lawyer reasonllbly believes the representation will not be adversely "ffeeted: and (2) The client consents after consultation, When representation of multiple clients in a singlt matter is undertaken, the consultation shall include explana, lion of the implications of the common represent.'!tion and tht advantagu and risks involved. A literal reading of the language "may be mattrially limited~ sugges\.s that an insured's informed COllstntto the joint representation under Rule 1.7 (b) would be required In eveTY case, ~ince all dual repreStntations entllil possible conflicts of interest. It seenu clear. however, despite the language of the rule, that informed conStnt should not be required \\;th regard to every theoretically possible connict. Presumably, the nIle is triggered only if there is a substantial risk thai potential conniets will materialize, In such cases, Ihe lawyer must assess the effect of the potentJal conniet on the reprC$Cntation. If the lilwyer reasonably bdievts Ihal tht repre~en tat ion will not be adversely affected under (b)( J), the lawycr lIlay ~cck lhe in~ured's consent to the representlltion under (b)(2). If the lawyer believes that the conniet will adversely affect the repre· scnLltion, the lawyer may not seek the insured's consent under (b)(2): the insured may not waive lhe connic\. If the confl ict or likely connict is not waivable, or if the insured refuses to waive ii, the lilwycr cannol ethically continue the joint represenlation. Whether the lawyer may con!inue to represent any ohhe clients under these: circumstances is determined by Rule 1.9, Connict of Interest: ~'ormer Client, according to the CommenLS to Rule 1.7. Rule 1.9 provides: A lawyer who has formerly represented a client in a matter shall not thereafter: (a) R~preStnt anoth~r person in Ihe "me or II subslIIntillliy relllled mailer in which thlll person's interuts art materially adverse to the interests of the former client, unless the former client consents after consultation. A$ applied to insurance defense, I~ul e 1.9 should be read to require the lawyer 10 obtain the insurance company's consent to the lawyer's continued representation of the insured after a conflict has arisen. ThIs conclusion Is consistent with Ihe clIse law in Alabama, ~ nd in the majority of otner ju risdiclions, which holds that II lawyer retained by tht insurance company represents only the insured w hcr~ thtre is a tonnict of interest, The insurance company is likely to co n~cn t . ~Inc~ it is contractually oblillated to provide its insured with a defense and substituling new counsel fo r counsel already familiar with Ihe case will clearly add to iLS costs. In most ins lances, howevtr, conflicts stemming from insur· ance company strategies to control defense costJ will nol mate· rialize, !f an insurance company's restrictions would prevent a lawyer from adequately representing the insured in a particular case. the lawyer should so inform the insurance company. Several consideriltlons favor the company's acquiescence to necessary defense cosls. First. it is generally in the insurnnct company's interests to oblain a defenSt judgment or to minimize a plainlUrs judgment, and counsel's determination thai particular measures are nteemTY to do so willi kely carry sig,

nifiCllrll weight. S«:ond. any restriction which would prevent adequlIte rCllteSenlllti('l n creates II non-waivable connlct or interest under Rule 1.7{b)(l), which in turn precludes the joint representation of insurance company and insured. Although this precise situation has not becl'llitigated in Alabama.. lhe logic: of the Alabama case law $uggesl$ lhat the insurance company would be required to use separlltc counsel to protect i15 Inleresl$, with attendant expenses; the cost of 5ep;lrate repre· sentalion for insurer and insured would almost certainly ellceed the cost (lHne disputed defense measures. Third, an Insurance company is cont ractually obligated to provide a defense (or its insured, ;md failure to provide defense may subject it to lIabUity (or breach extreme cases, an insurance enee t liability for bad faith. with live damages in f(lY()r of the be adjudicated along the same insurer's f3i1ure to settle a claim ~thi~~r~ such case. tht Al3bama Supreme I/lSlIra/lce lAW and l?-actiCCl ,

S;;;;;,';:.;jir7j

for bad faith which could be applied i The question is always: Did the i ,I.".l/; t t. degree of skill. judgment . and fare of the insured which defender of lawsuits I:::::~:?;~j lion. settlement. 3nd"trl31 expected to utilize? Siale Farm MII/ual Autom()/)iie

;,"""rn~I(:Oi~.

554 So.2d 387. 391 (Ala. 1989). In short, litlgation likely to repruentation represents only Ihe insured is and 5.4(c). to exercise behllif of the Insured. is directly and insurance company lion against the insured. obligation is , very nalure of litigation Illanllgcment guidelines an ethical issue. In contrast. in a dual representation. co·clients share the lawyer's services: the lawyer exercises prof($Sionlll judgment on behalf of both clients. Accordingly. the lawyer's independellcc and the client insurance comp,,'my's control over the representation are not the central ethical concerns. Rather, the ethical analysis centers on adequacy of the representation and iuues of the insured client's consent. The insurllflce company, as II. client. m.ly impose restrictions on the rc pre~e nta tion or control the litigation in V;lrious ways, :u long as the co-client insured consents after disclosure and the resultlng representation is adequate under Rules 1.1 and 1.3. Thus. II lnwyer's adherence to litigation management guidelines may be c nti r~ ly consistent with the professional obligations or competence, diligence and disclosure required in a dual represtntalion of insurer and insured. but is always question.1ble in II. single representation, where Itules or Professional Conduct require the 11iwyer'l exercise of professional Judgment on behalf or the Insured. indcpcmJenl of lhe non-client In5urcr.

Third-Party Audits With regard to third-party audits of ;In insurance defense lawyer's bills. the Disciplinary Commission concluded that: IAl lawyer should not permit the disclosure orinforrnalion relating to the representation to II third puty, such <IS <I billing auditor. if there 15 a possibility that waiver of confid entiality. the attorney-client privilege or the work product privilege would occur. its conclusion. the Commission relied on In Alabama Conducli .6, Confidentiality or I , Connict or interest: Prohibited respectively provide: reveal information relating to repre-

~~:'i~:::;;":~'~ cOIl~ent$

<lftcr thlll are Impliedly the representatlon. ,.,• • , ..,Honfo< representing a client unless: informat ion client is protected as required i I

.""i'? ofwhere litigation management guidethere is a connict or its insured. Ilule 1.6. that rule obligations. fall within the broadlySuch statements consUi of a client." disI of confide,lIiality. I 1.6(a) apply. insurance or explicit consent to breachu to confidentiality. Disclosures of third party are not "impliedly &uthothe representation." unlike, for of a fact that cannot be disputed in the in rtspoose 10 valid i I in anything, the opinion is not enough. hMm to the client is the disclosure not the possibility of waiver. Any disclosure constitutes a breach of confidentiality in contravention of Rule 1.6(a), regardless of the possibility or waiver of Ule Mlorney-clienl or work product privileges. The duty of confidentiality is brooder than the attorney-client and work product privileges, ;lnd breaches or the duty affect and rna) harm the client even if the privileges are not implicated. •

Su"n R_nu ll "' ......or ....... "-"'>1 ___ _ ..... ". ~01 ~SctlCXlloIl.P hi ~

~hIIJO !>Om~~"'!982

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"*""* 01 ... IIIw KIOO

Why Q Women's Section? By Caryl P. Privell

Why has the Alabama State Bar Board of Bar Commissioners created a Women's Section? n April 1998, !hI! Committee on Women in the Profc"ion hosted 11 retreallo consider the concerns of women lawyers in Alabama, This retreat (ocu~d on matters raised by a survey of women lawyers carried out by the com· m ittee in 1996·97, un der the leadership of Celia Collins of ~1ob ile. Women lawy(:u and judges from ea(;h county in lhe slalt and representalivu of law

schools in the state Yo'ere invited. It was

a consensus of those Iluellding the relrealtl\al the greatest need (or women practitioners wa51he creation of a women's section of the state bar. Following the circulation of pelitions and a report and recommendation from the committee, the Board of Bar Commissioners established the section in December 1998.

Background Beginning in October 1993 with the l'1uk ~-orce on Women in the I'rofession, i\ppointed by then-slate bar President Spud Seale, and followed in October 1995 by the Boord of Bar Commissioners creation of the Committee on Women in the Profession, the AS!) has been studying the status of women lawyers In Alabama. At the April 1998 retreat, memben of the Committee on Women in the Prolusion consiJered a number of options, including continuing the committ« structure. crealing a separate bar association. and organizing a new Ketion.

Options The committee structure contained The members and Ihe chairperson of the Committee on Women in the Pr()fC$$ion were appointed annually by the president of the state ~evc ra llim ltlllion 5.

340

UPTOMOU

. un

bar. t>1cmbership on the committee was limited as was Ihe mission and the budget. ~'inlilly. the f!;llt o( lht committee WaJ perceived aJ somewhat limited: sur\/tying and studying tht role and stlltus of women in tht legal pro(uslon. serving in an advisory capacity to other committees, and making recommendations to the Board 0( Bar Commissioners. Another OPtion was organizing a separate women's bar association. There lIre two nnlionwide women's bnr a55ociallon: the Nationlll Auociation of Women Lawyers and the National Conference of Women's Bar Associations. There are separate women's bar wociations in many sUtes and numerous metropolitan areas throughout the United Stales. Both the Women l..awyers Setlion of the Birmingham Bar Association and Ihe Committee on WOll'M!n in Ihe Profession have participated in thc activities of the Nallonal Conference of Women's I)ar Associalion$. African-American lawyers In Alab.'ma have an active statewide association. the Alabama Lawyers Association, and arl active association in Birmingham, the Magic Cit)' Bar Association. The latter haJ a represenutive on the ~xecutive Committee of the Birmingham Bar Association. After reviewing the options, the attendcC$ althe April 1998 retreat proposed the crCl!.lion o( a section. CrCllting:I seclion means ereallng a membership group. 'rhe section Is open to all members of the Alabama State Bar, not a select group of under 50 people. (As of Ihis writing, there are approximately 70 members of the section, with new memo bers joining weeki),.) Creating a seelion means devdopinA programs, committees, membership and a financial base. A comnllttcc ustS funds from the state bar; a secllon has Its own funds. The members of lhe commlltee believed thai the needs of women lawyers In Alabama could most appropriately be

addressed by working within the state bar rather Ihan by establishing a separale organb::ation.

Issues The most significant issue for women practitioners in Ala1xtma, based upon the 1996·97 survey and the 1998 retreat, is how to ~network~ with other women lawyers. This is Illrticularly true (or women who practice primarily outside the metropolitan area.~ of the state. In addition to networkinll, the creIItion of a section would provide tht' opportunity (or women to more fully participate in bar activitiu. Thls belief is based upon observing the activities of the Young Lawyers' Section and the experience of the Women l..awyers Section of the Birmingham Bar. By presenting programs. some in conjunction with state bar prOllrams or other sections and commillees, the WOnl en'~ Section hopes II) broaden lhe resources and learning opportunilies, not only for women lawyers, bul also for all members of the bar.

Opportunities The Women's Section of the Alabama SUit Bar offers new opportunities for women lliwyers in the stille to participlitt in the activities of the bar, to interIIct with each other and to enhance their practices. Members of the Executive Commillee, attendees of the Women's Section's first ~nnual meeting In May, and charter section members are currently working to develop means to communicate effectively among the membership, M well il5 ideas for new pr()grams and projects. Anyone who is interested in joining the iCction is invited to und $20 (or dues to the Women's Section. 115 Office I'ark Dri\/t, Suite 320. Birmingham 35223. • Caryl P. 1+/0011, of Ilr'nn;ngham, ;s the current cllair of tlte AS8 Women:~

S«tion.

• OPINIONS OF THE GENERAL COUNSEL /Jy J. Antholly MeLaill. gellurllf cowlSlI1

Um/crO/ll DR j.J02(Cj,

{(lIt'llltf

could 110t hold himself oul a.~ hUlring a partnership unless Ihl/mullers were, ill fact. par(Il(!rs. Rille 1.501 the curren' A/ahoma Rules of Professional Conduct

Law Firm NameThe Name ofa Law Firm May Not Contain the Names of Members of the Law Firm Who Are Not Partners

dld I10t (!.\1)r/!.fS~lIll'ohibillh/t l/llsa

Iml,/icafioll ill adlNrtlsillg Ih(l/ a Ixut"1..'r'Shil' existed.

Que.tlon: With the current ru"e il1 mind, ,im the name of n law firm contain the names of members of the firm who may not be J),utners? AIt~rnatively, can the name of a law fi rm cont"ln the natllcs of members who are compensated by a percentage of their grl)S5 income produced for the fi rm rather thlln by strict $(Ilary? Answer:

The name of II law firm m:.y not con· tilin the nllmes of men'bers of the law firm who Dre not partners. However, the nilme of the law firm may contain the names of members who life compensat· ed by a percentage of their graM income produced for the firm lather than by strict Sollary, if lhey are partners. DI.cu •• lon: Rule 7.l(a), Alabama nulc5 of Professional Conduct, stllles: "A l;nvyer ~hall not make or cause to be made a fa l~e or misleading communication about the lawyer or the lawytr's services. Acom· munlcatlon is false or mislei1dinll if it: (a)contaim a malerial misrepre· sentation of fact or law, or omil$ a fact necessary to make lhe statement considered lIS a whole not materially mi$lending." Rule 7.5{a). A.H.P.C.. states. in part. that: "A lawyer shall not use a firm name letterhead. or other profcs·

sional designation thOlt violates I~ule 7. 1." While Alab<una did not adopt the pro· visions of Hodel Rule 7.S(d) which expressly prohibited the (alk Implication in advertising thai II partnership or organi1.ation of lawyers existed. prior opinions 01 the Oi.sciplina!"), Commission hallt effectuated just such a prohibition. F'urther.the language of Model nule 7.5(d) seems to he su pe rnuo~ls since any misleading designation would be prohibited either by Rule 7. 1 or 7.s(a). In Ethics Opinion 39 1. the l)isciplinll!"), Commission held Ihnt three attorneys who were 1\0\ partners in the classical sense. i.e .. sharing In fees billed to the firm's clients and also sharing in responsibility and liability. could not u~e thei r last names as a firm name sir\ce the same would be mislead· ing and therefore unethical. In RO·82·564. the Discipl nary Commission held thllt an attorney and an associ/rte who had not been admitted to the AlabiTma State Bllr could not eth· kally open a bank account in the name of "A lind B. Allorneys.~ The Commission reasoned that while the proposed style of the bank account would be circulated to and <lbserved by a limited segment of the publk and thus not he as deceptive to the Aeneral public as would a letterhead (lr profcs· sional announcement. 11 would still be deceptive and misleading. In ItO·86·61. Ihe Disciplirklry Commission held thllt the use of an a55ociate's name in lhe fi rm name, letterhead. billin", etc., was impermissible since the lawyer and associate were not entering into a formal partnership. financia l or olhelWise. Ihus making use of the fi rm name (including the aS5oci· ate's name) deceptive and m sleading to the public. The Commission qualified its holding by slating that if lhe la~r and the associate were enterIng Into arrangements where there \',Quid not be ",..,aMnll

"", :w.

a partnership in lhe traditional cI:wical sense, the associate's name could appear upon the letterhead. but not in the firm name. Tht South Carolina Bar, in Opinion 86-12, held th .. t .. firm may not use an associate', name in the firm name because Ihe relationship Is not a partnership .. nd could misle..d the public. J)iscussion of this issue should also include some mention of the use of trade names by a fi rm. ~'o rme r EC 2-11 stated that: "The name under which a la~r conducts his practice may Ix a facto r In tht uleetion process. The use of a trade name or an assumed name could mislead laymen concerning the identi ty. responsibility, and status of those practicing thereunder. AccordinJtly. lllawyer in private practice should practice only under his O'\I'n name composed of the nnme of one or ITIQre of the lawyers practicing in a partnership, or, if permitted by law, in the name 0( a proressiol'l allegal cor-

poration. which should be clearly designated as such. ~ For many years, some I.. w fi rms have used .. fi rm name retaining one or more names of deceased or retired partners ~nd such practice is not improper if the firm is a bona fid\: succeMor of a firm in which Ule deceased or retired pcrson was a member, If the ust of the name is I\uthorized by law or by contract, and if the public is not misled thereby. However, the name of a partner who withdraws (rom a fi rm but continuu to prac· tice law should be omitted from the firm name in order to avoid misleading the public." I~u rth er.

Rule 7,5(.. ). A.IU'.C., states,

in pilrt: "A trade name may be used by a l~wyer in private prilctice if it does not imply a conn~c tion with a government agency or with a publit or charitable organization and is not otherwise in ·viotation of Rule 7. 1 or Rule 1.4:

The Comm~nt to Rule 1.5 shows the continuation of the poUe)' of allowing the use or the name of a deceased partner in the firm name since such would constitute a trade name. Interpretation of Rule 7.5 also recognizes thal many traditional law firms bear the names not only of deceased p.. rtners. but of former partners. not decea~ed, who arc rctir~d. "of counsel" or may have relinquished their [lQsilion as a partner In the firm but art ~ liIl .. fil'Tll member. The continued use of this traditional name is obviousl>, not misleading under such circumstances, and in no way violates the true spirit of the intent of Rule 7.5, l.awyers sho(dd take care to be clear aboulthe organi%.llion or entity of which their practice consists. The danger to be avoided i§ the possible misleading or deceiving of the general public as to the identity, status and responsibility of lawyers within the firm . The situation proposed in the alternative question would likewise be govemed by the above reasoning and authorities, lnO-91 -041 _

P ;lpJlmonin exphlin' ho\>' neither C brcncc n;lrT0w nm AI I1C II~ FilII h re~mbleJ Ihe ,h~lc -dimcn sion .• \, 1incilr' lhUlk ln~

attorney that '>CCllh to he 1l 1 11W~1 d k h ~ and cpldellllc in the '90s. TIleY \\'\'re IIPt ilhridged vcr~ i ()n~

01 [nwycr,.

rhc.r cl1dle'~ ef(on to un.icrslund ;1Ild ,l pprt:cil1tc th t: wmld vll t ~ .dc the klllr \\,.111, of thdr o(flce, prm'ided h"Llnce \0 lhclr hIes.

They l'l<l1 h \Iurked 11<11'1.1 to

.lcqUlre

type {II

cnh~htc l1 cd Wi-dlllll thm Irl1pr\ll'ed 1heir llvcs nncl the lives of l)cuple Ihey ",:I'I'e.l.

Orthr rCNhI)'1 1-800-"~·9.?9 Ont)' $14,95 ptU) H.OO q,tt rAokl f1o"flob

I", ilJ('f'I.... '1

Notices •

Notice is hereby given to Kenneth Coy Sheets. Jr" formerly of DoUli\n,

thllt he must respond to the formal charges in Disciplinary files ASS 98112(A), 98· 113(A), 98· 157(A). lind 99·06I(A) WIthin 28 days from lhe dllt~ of this publication. September 15. 1999. Fa!lure to respond shall

•

result in further action by the Office o( Ceneral C[)un~cl ilntVor a default judgment to be entered ag.11nsl him. Notice is hereby !liven to l'hUHp Eugene Kinney, who practiced I"w in Montgomery. and whose where· aOOuts are unknown. that pursuant to an Order to Show Cause of the Disciplinary Commission of the Alitbilma Stale !Jllr, dllted Hny 19. 1999, he has 60 days (rom lhe date of thi~ publiC<ltion (September IS, 1999) to come into compliance with the Client Security Fund assessment requirement (or 1999. Noncompliance with the Client Securit)' Fund !1SSe55menl require' ment shall result in a $uspen$ion of his license. [CSF 99.4] Notice is hereby givtn to William Clayton Wallace. who practiced law

A.ln.t.tement.

• Birmingham attorney Jal11et Edmund Odum. Jr. was reinstated to the practiee of Law in the State of Alabilma by o rd~ r of the Alabama Supreme Court dfedive July 16, 1999. [ASS!'e!. No. 99·03J • Gunt~mil1e attorney John Wallace Stame. was reinstated to tile active practice of law by order o( Ihe AIItbnITUl Supreme Court effective June 23. 1999.IASI1 Pel. No. 99·041 DI.b.rment. • Jamu Cannon. Jr. of Delroit, Michigan was disbarred from the prac-

in Gulf Shores, Alabama and whose

wherelloouu arc: unknown. that pursullnt to lin Order to Show Cnuse of the Disciplinary Commission of lht Aillbll!llll Slate 11.1r, dated July 19. 1999. he ha.~ 60 days from the date of this publlcation (September 15, 1999) to come into compliance with the

Mandatory Continllinll Legal Education requirements for 1998. Noncompll ....lce with the HCLI'; requirements shall result In a sus· pension of his license. [CLE 99·3 I I

• Notice is hereby given to J~ n Charlene McLendon, who practiced law in Conway, Arkansas and whose whcr~aOOub are unknown. that I}ursu'mt to an Order to Show Cause of the Di~cipli nary Commission of the Alab<lma State Bar, dated Hay 19, 1999, she has 60 days from the dat~ of this publicalion (September 15, 1999) to coml: into compliance with the Client Securily ~'und assessment require· ment for 1999, Noncompliance with the Client Securily I··und assessment requircment3hllll result in a 5U$ptn.'ion of her license. [CSF 99.5]

lice of law in the State of Alabama by order of the supreme court effective May 28, 1999. The reJpondent nttorney advised his client thal he had settled his case and obtained a jlK\gmflit in his favor in the amount of 13.500. The respondent attorney promised to for~'ard the nct proceed; to the client. but failed to do so. All efforts by tile clienlto communicate with the respondent attorney were unsuccess· ful. The client filed a grievanc~ with the bar, bUllhe respmdent attorney failed or refused to respond to rCpe<lled rtquest.s for informal.on by Ole Offict o( General Coumel. The respondent

•

Notice is hereby given to Joan Charie ne Md.endon, who practiced law In Conway, Ark-1n5M, and whose whcreabouIJ ate unknown, that pur·

suanl to lin Order to Show Causc of the l>isciplinary Commi~ion of the Alabam.'l State B:ir, dolled July 19, 1999. she has 60 days from the date of this publication (September 15, 1999) to come into compliance with the Mandatory Continuing LtitBJ EdUCIltion requirements for 1998. Noncompliance with the HCI.E requiremtnts shall l"t5ult in a sus· pension of her license [CLf! 99·22[

• Notice is hereby given to Greg Fon. line Jones, who practiced law In J.illlan, Alabama and whose wherellbouts are unknown. thnt pursuant to an Order to Show Cause of th ~ Disciplinary Commiuloli of the Alabama State Bar, dated July 19. 1999, he hIlS 60 d.ws from the date of this public.ltion (September 15, 1999) to come into compliance with lhe M~ndlltory Conti nuing Leg(ll Education requirements for 1998. Noncompliance with the r-ICLE requirements Shilll result in D. sus· pension of his license.ICIJ:: 99·17[

Itllorlley's failure to cooperate resulted in the filing of form.11 dmrgC5. After service by publk<ltion. a default judg. ment was entertd against the rupon· dent attorney. The respondent attorney was found 10 have violated Rules 8. 1(b) [bar admission and di5Ciplinary maltC($1 and 8.4 (a) (c) (d) and (gl lmisconduct!. [ASH No. 97.3041 • Pelham attorney William fo: Mllthew" was disbarred from the practice of law in lhe State o( Alabama by order of the Supreme Court effective May 28. 1999. The respondent attorney was retained by a client to represent her and her daughter In related

criminal and juvenile proceedin~. The client paid the. respondent attorney $2,200. Thereafter, Ihe re5pondent attorne)' d!SIIpJ)(!ared, ab<lndoning his clients. The client filed a grievance with the bar. but the respondent attorney failed or refused to respond to repeated requests (or infOrmation by Ihe Office of General Counsel, The respondent attorney's failu re to cooperate resulted in the filing of formal chargu, After service by publication, a default Judgment was entered against the respondent attorney. The respondent attorney failed to appear for the hearing to determine discipline. The respondent attorney was found to have violated Rules 1.3 [di ligence]. 1.4(a) [commu· nication[, 1.l5(d) [declining or terminating representationJ. 8. I(b) [bar admission and di~ciplinary malter$J and 8.4 (a) (c) and (gl Jmisconduct]. [ASa No. 97-344J • On June 4, 1999, the Alabarna Supreme Court disbarred Enterprise attorney Daniel F, Cannlchael. Jr. from the practice of law. This action was in conjunction with the Disciplinary Board of the Alabama State Ilar. The bar's disciplinary rules allow a lawyer who is the subject of .. n invesli~ ..tion or proceeding Involving misconduct to surrender his law license. The bar hu been investigating complaints against Mr. Carmichael concerning his i ssuan c~ of "insufficient fu nds" check$ from his attorney'! trust ..ccount. I\n analysis of the trust account records was perfo rmed by the bar's office of gencr.. 1counsel. This revealed that Mr. Ctlrmichae! hlld been vsin,:: Irvst funds 10 pay various per.sonal expenses. Mr, Carmichael and his allorney

mel with the bar on May 29. 1999. ,lI1d Mr. Carmichael signed the con· sent to disbarment at thai lime. Su.p.n.lon. • Effective Februal')' 9. 1999, attorney Omar Mark Zamon of Phenix City has been suspended from the prac· tice of law in the State of Alabama for noncompliance with the 1997 M:.ndlltary Contim1ing Legal Education Hules of the Alabama State Bar. ]CLE 98·01 I] • Hunt,wille lIttomey Sheila ~ Facemire W<lS ~uspended from the practice of law In the Stale of Alabama for a period of 91 dI'Iys effective May 29, 1999. The suspension Wall based upon the resl>ondent attorney's plea of guilty to violating Rules 1.3, 1.4, and 8. 1(b), A/a/xmm Rulf!s ofrrofessiolJaI ())nducf. Ms. Facemire was retained in six separate matters to represent clienl.$ in various leg,ll matters which included m<ltteT$ involving estate and prob:.te, workers' compensation, wrongful termir\MiOI\ IIr'1d rct.~lil!!ory discharge. Her rellr~ntalion in these motlers began all ~a rly as 1993 and continued through 1996 and 1997. During this time. Ms. ~'acemire admit· ted to doing little to 110 work in any of these matters and further admitled to f..mng or refusin" to communicate with her clients re~ rding their cases. In two of thest cases, when II:ricvances wert filed with the Altlb<lma Slate 13M, Ms. facemire failed or refused to respond to numerous requests for information reg:.rding the grievances from both the Office of Ceneral Counsel of the Alab.lma State Bar and the Huntsville-Madison County Bar Association local grievance committee.

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BMed upon Ms. Facemire's plea of guilty, she was ordered to receive a 91 -day 5uspension which was to be held in abeyance pending successful completion of her probation, While on probation, Ms. Facemire admitted to violating the terms of her probalion. Therefore, her prob<llion WII~ revoked and the 91.day suspension which was being held in IIbeyance w..s placed in effect. ]ASa Nos. 95· 347,97·298,97·352, 9S·108, 98· 158. & 98-2751 • Brenda W. lIardlsoll was suspended

from the practice of law in the State of Alabama for a period of 60 days effective June 2. 1999, for violating Rul~s 2.1 IAdvisor). 4.1(a) [truthfulne.s5 in statements to othersl and 8.4(a) and (g) ]misconducl], Alabama Rules of ProfessiOl1al Q}nduct.

While employ1!d with Legal $crvices Corporation of Alabam<l. the respondent attorney, as well as other attorneys. had represented Willie Marshall and Lynette t>1arshall in various legal m..tters. During the course of the respondent attorney's representation of lhe "1arshalls, she eillaged in an adulterous relationship with Willie Mar~hall. This rc 1ation~ip. combined with other f..ctor$, eventu.. lly lead lO a breakdown of the marriage and the Marshalls were divorced by decree of the Circuit Court of Brlklwin County on Harch 23. 1994. The decree of divorce ..wllrded Mrs. Marshall and her children the marital residence and ordered that her ex·husband, Willie Marshall, continue 10 make the mortg.,ge payments. Subsequent to this order, Mr. MllT$hl\1I failed to pay the mortg..ge l)tlymenlS <IS ordered and the house Wall eventually placed in foreclosure. Mrs. Mal'lOh~1I w..s able to make arrangements to bring Ihe mortgage payment arrearage up to date and stop the foreclosure. However. the respondent atlorney intervened on behillf of Willie Milrshilll ..nd advised the altorne~ representing the mOrtgage company that Mr. Marshall wa~ Ihe mortgagor, and that it was his desire for the forcci()5urc to proceed. Thereaner. the resllOndcnl altorney and "lr. Marshall arranged to have a "straw man" purchase Ihe house at the foreclosure sale with an

understanding that Mr. Marshall would then buy back the residence from the straw man, thm circumventing the court's order entered in the divorce proceeding. [ASIl No. 97. 175[ Public R.......... nd. • Birmingham attorney Scott Johnson lIumphrty reclived a Ilublic repri . mand without general publication on May 2]' 1999 for hllving violi\ted Hules 1.3, 1.5(al, 1.5(b), and 1.5(c), Alabama Rules of Professional Comlllci.

During 1993 and 1994. he was II partner in the fi rm of Slewu!. Davis & Humphrey, P.C. The firm acted as a cIO$ing agent for more than 2,000 real estate cI()$ings. The setllement statements in a substantial number of these closings reported erroneous amOUrlls fo r "government recording and transfer charges." Individually, these errors only resul ted in nominal overcharges or undercharges to the parties to the real estate tran5action. However, collectively, the errors resulted in an accumulat ion of II sub· stantial su rplus of funds within lhe firm's recording trust account with Ihe settlement statemenu or monthly bank statements. Upon diKovery of the surplus funds in the recording trust account. rather than conducting an investiga. lion to determine the cause, respondent attorney and other members in his firm transftrred or allowed these funds to be transferred to the firm's operating account and commingled with the attorney with attorney funds. Additionally, there WM evidence that the recording trust nccount was used or allowed to be used to pay fi rm expenses. The DiKiplinary Commission. In ilJ deposition of this matter, considered that respondent attorney hlld no prior disciplinary history and there wa.~ no evidence of intentional misconduct. The Disciplinnry Commlssiol\ oroored that the respondent attollley receive a 90·day suspension. the ImposItion of said suspension being conditioned on succesdul completion of a two·year probationary period. Other condi· tions of probation were ordered,

indudinJl a condition that respondent attorney and his co·respondenlJ make restitution in the amount of $3 1,000 as directed by the Disciplinary Comm1s5ion. [ASB No. 95.207(1J)[ • IJlrmlngham attorn(y Stephen Kent Stew,1i received a public reprimand without gene rill publication on May 21. 1999 for having violated Rules t .3. 1.5(a). l .s(b) and 1.5(c). Afabama Rules Qf Professiol1al Conduct.

Ourlng 1993 and 1994. he was II partner in Ihe firm of Stewart. Davis & I-Iumphrey, P.C. The firm acted as II closing agenl for more than 2,000 rtal u tate closings. The settlement statements in a substantial number of these closings rcported erroneous amOtnlt5 (or "g(IVCTl1menl recording and tram(er charges." Individually, these errors only rt!U1ted In nominal overcharges or undercharges to the parties to the real estate transaction. However, collectively, the errors resulted in an accumulation of II sub·

stantial surplus I)f funds within the firm 's recording trust account with the setllement $tatements I)r month· Iy bank stlltemen1$. Upon discovery of the surplus funds in lhe recording trust account. rather than conducting an investiga· tion to determine the catat. respon· dent attorney and other membus in his firm transferred or allowed these funds to be transferred 10 the firm 's operat ing account and commingled with Ihe attorney with attorney funds. Addilionally, there was evi· dence that lhe recording trust account was used or allowed to be used to pay firm t:xpenses. The Disciplinary Commission, In its deposition of this mailer. considered that respondent lil!orrley had no prior disciplinary history and there was no evidence of Intentional misconduct. The Disciplinary CommiS5ion ordered that the respondent attorney receive a gO.day suspension, the imposition of said suspension being suspended condi-

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tioned on successful completion of a t'WO-year probationary period. Other conditions of probation ~re ordered. including a condition that respondent attorney and his corespondenu make renitution in the amount of 131.000 as directed by the Disciplinary Commission. [ASIl No, 95·207{A11

•

Dothan attorney Rkhard Ueywood Ramley, IV received a public reprimand without general publication on July 14 , 1999, Mr, Ramsey was appointed by the Circuit Court of Iiouston County to represent a crim· inal defendant. After the client .....as convicted another attorney was aJ)l>ointed to represent the client on ap~al. DC$rite this fact, Mr, Ramsey acctilled $2,000 from the client's wife 10 handle the appeal. Mr. Itam ~ey provided little, If any, legal services in oonnection with the appeal. Wherl the client's wife demanded a refund Mr. Itamsey attempted to justify retaining lhe fee by claiming to have done ....,ork for which he had already billed the St.,te of Alabama in connection with the client's criminal trial. Mr. I~amsey was fo und to have violated Itule 1,5(a) of the Itule! of Prufc$5ional Conduct of the Alaban,,, State Bar which pro· hibits an attorney from charging a clea rly excessive fee, I~ul e 1.5 (0 which preludes an attorney appoint. ed to represent an indigent criminal from accepting any money in the matter (rom the defendant or anyone on the defendant's behalf, Rule 8,4(c) which provides that it is miKonduct inwlving dishonesty, fraud, deceit or mimpresent.\tlon lind nule 8.4 Ill) which provide~ thal it is professional misconduct ror a lawyer to engage in conducllhal adversely reflects on his fitne" to practice law, [n addition to the reprimand Mr, Itam ~y was ordered to refund $2,000 to his client's wife, which he has done, (ASIJ No. 98·156(A)1

• Tuscaloosa a ~ torney Stc\'eJl Franklin lIamlon received a public reprl. mand with general publication before the Bo.ard of Bar Commissioncn of the Alabama Stille lIar on ;'lay2 1, 1999, The reprimilnd was a re$ult o( ;'Ir. Ilarrison's having

misapproprillted and converted to his own use $4,650 in funds ~Ionging to his former client. ChfVron USA. ,.1r. Harrison repaid the mis.,ppropriated funds and voluntarily sus~nded his practice of law for approximately one year durinA which time he received counseling and treatment 111 addition to the reprimand Mr, Harrison was pl~ced on probation for a ~riod of two yeau. (ASII No. 98· 042(A))

• On "'ay 21. )900, Birmingham attor· ney Oavld AI(red Reid received pub· lic reprimands without general pub· IiClltiOn in two $tparate malters, 111ese reprimands wert aJ,lreed to in conjunction with a plea agreement. Itestitution to Ult two clients involved was also agreed to In these matters, In ASJl96·354(A), Mr, Held was hired to defend Spiral Industry, Inc, in a lawsuit filed in Tww:aloosa County, Alabama, lie was paid a retainer of $10.000, In early 1996, he advised the client that ht was closing his office, He referred the c,,~e to other counlCl to handle, After his with· drawa). he fa iled to respond to numerous reque$ts {or the case I1le. Spiral's new lawyer had to reconstruct file materials at great expense to th\! client. Even though he had only repreICnled Spiral for a couple of months. he did not refund any portion of lhe relaintr, Be \!ntered a plea to violating Rule 1,16(d). In ASI3 97·0 11IA), Mr, Ifeid began representing Robert B, Steele in a Chapter 12 bankruptcy proceeding In June of 1996. Mr. Steele paid Mr, Iteid <I retainer of $2,200 which WilS reported to Ule BankruptcY Court. The case developed a number of irregularities and txperlenced undue delays, which the client blamed on Mr. I~eid , Finally, Mr. Stetle directtd ,.1r, neid to dismiss the case on October 15, 1996, After the dismissal of the case, ,.lr, Steele soughl other counsel. I-Ie attempted to get his file (rom 1>1 r. Reid without success, Of the $2,200 retainer p<1id to Mr, Heid, the Bankruptcy Court only approved fees in the amount of $750. Mr. I~eid kept the entire fee , bul$t,450

should have been refunded upon di~missal of the case. This also inwlved a violation of Rule 1.16(d)

• Richard Temll Olvi. received II. publie reprimand without general publi. cation on May 21. 1999 for having violated Rules 1.3, 1.5(a), 1.5(b), and 1.5(c), Alabam(l Rules of Professional Cl)ndllcl.

During 1993 and 1994 , he was II partner in the firm of Stewart. Davis & Humphrey. !l.C. The firm acted as a ciminI!: aAent for more than 2,000 real estate clwings, The settlement statements in a 5ubstlntial number of these closinllS reported erroneous amount! for ~gO\lernment recording and transfer charges," Individually, these errors only resulted in nominal overcharges or underchargu to the parties to the real eslate tran.\llclion. However. collectively, the errors resulted in an accumulation of II sub51antial surplus of funds within the I1rm's recording trust account with tht sdllement statements or month· Iy bank statements, Upon discovery of the surplus funds in the recording trust account, rather than conducting an investiga. lion to determine the C<luse, respon· dent attorney and other members in his firm transferred or allowed these funds to be transferred to the firm's operating account and commingled with the attorney funds. Additionally, there was evidence that the r«ording trust account was used or allowed 10 be used to pay firm expenses, The OiscipHnary Commission consid· ered thlll respondentlillOrney had no prior disciplinary hl.~tory and there was no evidence of int.nUonal misconduct. The Di ~iplinary Commission ordered that the respondent attorney receive a 90.day suspen· sion, the imposition of said suspen· sion being conditioned on successful completion ol a t....,o·year probationary period, Other conditions of probation weN! ordered, Including a condition that reslxmdenl attorney and his corespondents make restitution In the amount of $31 .000 as di rected by the Oisciplinilry Commis.tioll, lASH No. 95·2071CII

•

YOUNG LAWYERS' SECTION By CordOll C. Armstrong, III, YI,s Pre.fidf/nt

he Young UW)'trs' Section of the Alabama State Bar is thriving, and I am proud to say that I have been a.uociated with it section that has re:.chcd out to so many people. I have now served the bllr through my involvement III the YLS since 1991. Yet. whi le my term as president has comt to an end lind I am leu than cnt year away (rom ~aging out~ O\j a young lawyer (as that term is defined). I aMure yOu that the fundamental principle of public service ;s well rooted in lhe YLS. There are many worthwhile endeavors and prOArams sponsored by lhe YLS, of which aJi lawyers can be proud. The YLS organh:cs and runs the admissions ceremony held each spring and fall. Lisa Van Wagner of Montgomery chairs this subcommittee and she dcYOtes a significant amount of time and effort In makIng the cercrll(lf\), fo r rlew admittees a success, [t is not easy scheduling a date convenient fo r the supreme court jus. licu, judges of the cout" of civil and criminal appeals, a federal court judge, state bar officers, and a vtnue for the ceremon)', as well. I.i$il has accompJished all of this thanklessly over the illst several years and deserves your recognition. The YLS also sponsors a minority participation program. This subcommittee is currently chaired by La Harron Boone of Montgomuy, The purpose of this program is to open the door to the legal profeulon as a career choice for minority students. This is accomplished by en"""in" the assistance of successfu l minority lawyers and/or judges who partldp.lte in a ~sympo5i um " for stu· denU. Il is Our belitf that by hearin" from these succusful profusionals in the legal field, a po!itlve impact can be made on the students.

Our Youth Judicilll Progr;un is a jOint project with the Y"1CA. ThIs program is a mock trial competition for high school students and is fXlremely popular statewide. The winners of local countywide competition ascend on Montgomery for "finals." The stnlewltle winners then go to a rellional multi· slllte competition, and. ult imately, nallonal winners are choMm. The studer\ts themselves $t~ as lawyers, witnesses, judges and jurors. Another subcommittee of the YLS that has provided invaluable public service Is the Disaster Legal Services Committee. This 15 our "emergency response co mm lttee~ that Is only called upon when ~'E"1A declares a natural disaster in our state. The committee is co-chaired by Jenelle Evan. of Birmingham and Kim Calamelll of f.10bile, and is "staffed" by volunteer lawycrs of the YLS. Thi~ <lid program offers heir) wilh such l ~ gal concerns as Insurance claims for mtdical bills: loss of property: drawing up wills and other legal pJpen lost in a dis.uter; home repair contracts and contractors: and possible landlord and tenant problems arisi ng from a n<llura! dis.'lster. The most recoJjnizetl program spon. sored by the YLS is the annual Sandestin Seminar. Thh C1.F. opportunity is held tach May at the beautiful Sandestin Resort in Sandestin, Florida. This is a tremendously popular seminar, not only because of the 'amenities," but because of the progrlllrIJ Ihllt are offered and the atmosphere In which It Is held. I encourage aJilawyers to attend this exciting seminar. The new orficen of the YLS for 19992000 were elected at the state bar's annual meeting in July in Birmingh<lm. This year's orficers arc:

Pre.lden!: Thomas 8. AlbrlUon, Andalu. la J'rtlldent_elect: J. Cole Portl•• ~l onlgo mery

Secl'ttary: Todd S. Strohmeyer. ~t o bile fuu urer: ItQbert Gordon Methvin, Jr"

Ulrmingh.am Immtdll te " ..t Prtsldent: Gordon G. Ann. trong. III, Mobile Congratuilltions to each oHhe new o({jcersl •

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Federal and State Trial Courts Adopt Standards for Professional Conduct Thejudg/!$ of the 'fImth Judicial Circuit Court of Alabama and the judges of the Unilud Siaies Distrlcl Court for the Middle District of Alubama recent/II adopted slandords for professional conduct. /Jolh rourts aclmowledged the assistance of Ihl! Alabama {kfl!rlSll I.oWII(.!r$ AsWcialiuli and the Alabama 1'tiall.oU'/lers A.s.MJciuliulI for coming /0 the forefront to promote ell/ility and professionalism within the "'fIul profession, The slondaYds adopted are designed to l.'»COUfa{IC lawvers and j"dges /0 mNI their obligallorls 10 each other, to !ii/guilts and fa the S/lSI'l1l1 otjtis/ice, aM Ihl!rl!by (lchiclIC! the twill goofs of clvili/II and professionalism which /Ira I/uffmarks of (J lean/ed profi'ssion t/c{/icalw 10 public $IJruice. Copies of the stlllldunis Iidopted by I/w courls

are oooilublc /ro", Ihu Clerk of the United Siales Dislriel Court for the Mitltlle District of Alab{llnu in Montgomery and the Clerk of Ihu Tenth Judicial Circuit of Alabama in !Jirmingham.

TENTH JUDICIAL CIRCUIT OF ALABAMA GENERAL ORDER

S T AN

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The undef1igned judges of the Tenth Judicia.l Circuit of Alabama have revi~'ed the attached Stand.mis ror Professional Conduct, Lawyer's Duties to the Court and Court's Duties to Lawyers. The Slllndanis and Dulies after having been considered were unanimously ndopted by Ihe Court on AprilS, 1999. The Alabama

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P R O FES S IONAL

Defense Lawyers and the Alnl).,ma '!Tial Lav.ryers Associations arc to be praised for encouraging lliwyen and judges to promote civility and professionalism within the legal profession. The undersigned judges will make every effort to follow closely the Courl's Outies to Lawyers and will e~pecl the laW)'tl1 to adhere 10 the

CONDU C T

LIlv.ryer's Duties to Other Counsel and I.awycr's Duties to the Court. The judges request Ihallhe Birmingham Bar Associl'. tion, Bessemer Bar Association and Alabama State allr send a copy of this Order to all attor· neY5 who practice ~(ore this Court. Done this the 31st dllY of MolY, 1999 .

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THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA GENERAL ORDER ST A NDARD S

This courl has carefully considered the allilched Standards (or Profe~~i on(ll Conduct which ha\le recently been adopted by the Alabama Thial I..:lwycrs Association and Iht Alabama Defense Lawyers Assoei<ition. The Standards have been reviewed and approved by lhe court's Lawyers Advisory Committee. The court commends the Alabama [k (enle Lawyers Association and the Alabama Trial Lawyers Association (or

FOR

PROFE SS I ONAL

their efforts to promote lind maintain lhe highest slJndards or' j>rofcssiolltll conduct and civility among the Bench and Bar. and hereby adopts the attached Standards (or Professional Conduct. The judges of this courl commit themselves 10 adherence to lhe Couru ' Duties 10 LaWYers contained therein, and JII lawyers practicing before this court are advised that the Lawyers' Duties to Olher Counsel and l..awytrs' Duties to

CONDUCT

the Court Me standards which they ate expected to obseNt. The clerk is Directed to distribute copit$ of this order and lhe attached Standards for l'rofessioNlI Conduct to 1111 attorneys presently admitted to practice before this court, and to furni sh copits to each attomey ildmitted to practice in the future at lhe lime of admis.sion. It Is So Ordered This 8th da.Y of JanuaT)' 1999,

MYRON It mOMPSON Uaicod SIUI DiMct J\idp:

IMPORTANT! Licenses/Special Membership Dues for 1999-2000 All licenses to precticelew, as well as speciel memberships, are sold through the Alabama State Bar heedQullrters. In mid·September, II dual invoice 10 ba used by both annual hcense holders and special members Will be mlliled to every IRwyer currently In good standing with the ber. II you are aClil'ely practic ing or anticipato practicing low in Alabama between Octobar 1, 1999 and Septembar 30, 2000, please be sure thet you purchase an occupetional license. Ucen$e$ ere $250 for thel999·2OQO ber year end payment must be RECEIVED between October 1 end October 311n order to avoid an automatic 15 percont penalty ~S31 ,SO), Second notices will NOT be senti An attornoy not engaged in the private prectice 01 law III Alebamll may pay the special membership 100 01 $125 to be con· sldered a member in good standing. Upon receipt 01 paymeflt, those who purchase 0 license will be mailed II license and a wallet·size liCllnse lor identilicatlon purposes. Those electing special membership will be sent a wallet·slze JD card for both identilic8tion and receipl purposes,

If you do not re ceive an invoice,

p ~ ease

notify Diane Locke, membership services director, at 800·354-

6154 (in-, " " WATSI or 13341269-1515, ext 136, IMMEDIATElYI

IN MEMORIAM

Helen S. Freeman

1903-1999

Ilclen S. Freeman, " longtime employee of the Alabama State Bar. di~d July iI . 19!!9. Mr$. Freeman lind her hll~band of 58 yo:ars, Ed, hlld m(lVi:d (rom Mon tgomery, wh er~ they had lived for 28 ycar~. to be ncar their only child. Wanda ~: Coffman, and her hll~band, Norman Coffman, of Sylacauga.

Mrs. Freem:1n W!lJ employed inllilllly lIS legal secretary to the bar's General COllnsel and later served as the Admissions Secretary 10 the Board of Bar Examiners. the position she held when she retired in October 1977. She was the bar's first employee to reti re under the stale's retirement system.

FEDERAL CIVIL PRACTICE in

THE M IDDLE DI STRI CT OF ALABAMA FEDERAL JUDGES and experienced liligators share the fundamentals of:

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Pleadmg. Federal Jurl,diclion, and Removal Scheduling Con ference. Ru le 16 Scheduling Ordel. MElndetory Disclosures Discovery, Inspootlons end Rule 30 (b) Dispositive Motlun Procedure The Lewyer'& Rule In Cuurt-Annexed Medietiun Nun-July ond Jury Trlols, DllectlClullS Exemlno tlon Civil Appelle te Prectice In The Eleventh Circui t

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Friday, December 3, 1999 Montgomery Civic Center 8:45 a.m. - 4:45 p.m . [Hcgillfnl i on 8tllrt8 III

8:00 a.nl.l

FOR REGISTRATION IN FORMATION , call 334-264-8005.

RECENT DECISIONS BV Rachel So.nders·Cochrarl and !Vi/bur C. SiliH!nllun

Recent Civil Decisions Constltutlona. Law; Alabama Constitution provld•• no g"ar·

a nt •• of aqua' protactlon & purt. PnNJ Mtlof, MI. 1971 900. 1999 WL 339300 (AI•. , May 28.

1999). In this opinion authored by Justice Houston, the Alabama Supreme Court concludes thl\ tht Ailibuma

Constitution of 1901 contains no guarantee of equal protection under the laws of this slale. The court traced the devel· opment of equal protection principles under Alabama law, and noted that delegates aline Constitutional Convention of 1901 $peciflcally refused to carl'}' over Inlo the 1901 Constitution lhe equal protection provision found in Alabama's 1875 Corutituti(ln, with the understand· ing that evel')'thing contained in the deleted provision was cow:rtd by the Fourteenth Amendment to the United Slales Constilution. The Melof court found that, until 1977, the Alabama Supreme Court consistently held that Alabama's Constitution provided no guarantee of equal protection. However, the flut official recognitlon of such a guarantee under the 1901 Constitution occurred in 1977, when the Alabama Supreme Court adopted language iden· tical to that (ound in an erroneous lind unofficial annotation printed in the Alabama Code of 1940 and again in the Code of 1975. Notin~ thallhe annota· tlon had now been corrected, the court declared that there is no equal protec· tion clause in the Constitulion of 1901 and any equal protection guarantee in the State of Alabama must stem solely from the ~'ourteen th Amendment to the United States Constitution.

Evidence . nd medlc.1 m. l· pr. ctlc ej AI.b.."." med ic.' lI.blllt y .ct prohibit. only

p •• lntltls 'rom discovering evl· denc. 0' other .ct. or ami.· slons; 8ct In.ppllc8ble to co-de'endant. Ex part' Pfizer, IIIC. , MI. 1980 155, 1999 WL 3574 15 (All .. June 4. 1999). In Ihis medical malpractice action from ~;scambia County, the plaintiff filed suit again!t a physician and others, alleging medical malprac. tice in connection with a circumcision. In performing the circumcision, the physlc!lIn used.D device manufactured by pfizer and Val1eylab, who were also named as ddendanl$ under a producls liabilily claim. During the course of dis· covery. Pfize r and Valleylab sought to discover evidence o( other acls or omissions by the defendant physician. Tht hospital and physician objected, arguing that Alabama's Medical l,iabilily Act pro· hibited discovery of these materials. The Irial court denied this portion of the mllllu(OIclurers' discovery requests. The AIOIbama Supreme Court grnnted the manufacturers' petition for writ of mandamus, noling that under Section 6.5.551, a plaintiff Is prohibited "(rom conducting discovery with regard to any other act or omission or (rom lntroduc· ing at trial evidence of any other act or omiss;on.~ Because in this ca.se it was nol the plaintiff but II co--d(l((l/l(/lIlIt $teking to discover the information related to other acls or omissions by the physician, the court held that Section 65·551 was inapplicable and the records sought were discoverable.

court's orders remitting seven compen· satory damages aWi\Td.$, in a.mounl$ pri. marlly representing emotional distress damages. This /lction arose from a onecar accident InV('llving ten (llmily members. The plaintiffs claimed that the highway on which they were Iraveling had been improperly paved and finished causing them to overturn. A lhree.ycar· old passenger was killed and the other passengers were injured in varying degrees. Plaintiffs brought. a wrongful death and negli"enc~ claim against the company responsible for the paving work. The jury retumed $5 million on the wrongful death count , and awarded seven o( the plaintiffs compensatory damages that (ar txceeded their actual medical expenses. The defcnlhnt sought judgment as II matter of law or new trial or remittitur. The trial court expressly found that the jury's verdict was support· ed by the evidence and that the verdict was not the result of bias, prejudice or ,,;wion. However, the trial court applied tht lI11mmomllGrcen Oil factors to determine thai the verdlcl$ wtre shock· ingly exussive and must be reduced because the am(lunl~ o( th<»e verdicls greatly exceeded the plaintiffs actual medical expenses and therefore, had to represent primarily pain and 5ufferinll ~mages. The verdicl$ clearly included an amount for emotional dislre.u resulting from the death of the thret.year.old (amily member. The plaintiffs refused to accept remittitur and appealed.

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Po.t.trlal review 01 d8m8ge'i I.te.t d.velopm.nta regard. Ing emollon.1 dlst,.•• d.mages

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Ihmlels II. Bast AluOaltlo Povlng, lllc.. MI. 1970883. 1999 WL 3574 10 (Ala.. June 4. 1999). In Ihis wrongful

death and negligence case from Macon County. the supr/:m/: court again addressed tht issue of r~mittitur o( jury awards (or pain /1M suffering. However, In this case. the court rt\!trwi the trial

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On appeal. the supreme court noted thai Ihe appropriate amount to award a plaintiff for pain and suffering is discretionary with the jury and unless that award is fl awed in some way. a trial court may nolsimply conclude that the amount is exctssive and order a remittitur. [n this cue:, because the Iri,,[ CO(lrt had eMpress[y determined that the jury's verdict Wll5 not fl awed or b i<l~ed or prejudiced in any .....ay. the supreme courl held Ihatthe trial court could not sub· sliMe i15 Judgment in place of the Jury's regarding the appropriate amount of damages to be awarded for pain and suffering. The S\lpreme court held that the evidence supported the verdicts and reinstated all of the original awards, The court also rejected the defendant's claim lhat the JUry improperly awarded plaintiffs Ctllotiollal di stre~ dan1<' l:!c$ resulting (rom the death of the threeyear-old family member, Altho\lgh the CO\lrt recogniud that damages for the mental anguish o( fam ily members is ordinarily not compensable in a wrong· fur death action, in this case, the wroog· fur death claim was tried along with plaintiffs' negligenGe claims, Because the p[ainliffs were physically iniured and were within tht "1:0ne of danller," they were entitled to ~ee k damages for emotional dislress resulting from thc defendnnt's negllgcnce. Thus, evidence of their grief and mental anguish caused by the lhree·year.old's death ¥o'lIS highly relevant to their claim for darmge.s, ~'i na[]y, the supreme court reiteratrd th.ltthe t/tm/lIJ(}ll(I/Grwn Oil factors ~re inappropriittt for consideration when reviewing an award of compelU.'lto· ry damages for txceMiveness, In reviewing an award of compensatory dalTlilges, the (ocus should be on whether the p[aintIff has beell proptr[y compensate(,!. whereas in revi ~wi n g an award of punitive damages, the focus should be on the actions an(,! position of the defendant. l3e<:ause the NommolldlGrwn Oil factors focus on the actions and fiNlntial position of the defendant, those factors are applicable only to awarJs of punitive damages.

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Archflr Doli/ds Mldlalld Co. 11.

1960220, 1999 WI. 424336 (Ala"

flied in the district CO\lrt as assignee o(

June 25, 1999). In this case from Walker County, plaintiffs alleged that Ulf: defendants, all foreign corporations with principal places of b\lsinc!IS outside of A[abama, had engagtd in a compi racy to control the prict of cilric acid shipped into A[abama. Pla !n tlff~ broughl this action in state court a!leg;'lll a vio· lation of A[abama Code Secllon 6·5·60, Tht iss\le before the court was whether Section 6-5·60 provides a cause of action for an allcgcd conspiracy involv· ing interstate commerce. The supreme court concluded that Alabama's antitrust statutes are inap. pllcable when the lran$ilctions at iss\lc involve interstate commerce. The court cited mul tiple justifications fo r its conc[uslon, noting that Alabama's antitrust statutes were enacted III a lime when Congress WllS deemed 10 have the exclu· sive authority to regulate interstate commerce and when II fede ral anlilrust statute was al ready in effect. Other (actors found to S\lpport the court's interpretation of the staMes included the fact that the model for Alabama's antitrust statutes was held to be limited to trarlSllctlons i n~lving intrastate commerce: the origl na[ wording of A[abama's statutes included repealed references to ''within thIs 5111Ie"; A[abama appellate courts have cOll~b· tenl[y interpreted the stat\ltes to govern onl y intrastate commerce: and the fact that, despite the limited reach given to A[abama's antitrust statutes by the Alabama appe[[ale CO\lrts. the legis[a· ture has made no substantive changes to the Sltllues 1it'l ce their enactment.

a judgment of over one million dollars

Recent Bankruptcy Decisions

against Andrews. After an adverse decision agai nst Cadle which held thai it did not legitimtllely own tht judgment, Cadle appealed to the Firl h Circuil. On a motion to dismiss the appeal on lhe ground Ihal Cadle did not own Ihe judgment, the I"iflh Circuit said it need not decide ownership because (or the purpose of the appeal only. [t cO\l[d assume this as a facl. Cadle had claimed frllud between \Vhlltabufger and other of the defendants In corupiring to trans· fe r auets from Andrews and leave Andrews executlon.proof. When Andrews filed a chapter 7 ease on June 14 , 1994. Cad[e fi led several claims seeking to recover on its judgment. The bankr\lPtcy cO\lrl dismissed II complaint based on Ihe judgment slating that the trustee actua[[y owned the claim. Cadle then fil ed the instant complaint in the U.s. District Court claiming RICO viola· tions, fraud, and tortio\ls interference with i t~ right to co[[ed the judgment and to pierce the corponle veil of Whataburger. The defendants contended that the matter WIIS alrudy in bank· ruptcy, and. lherefore. \lnder the fi utto·me rule, the district court had no j\lrisdiction. The dislrictJudge. In dis· m issi n ~ the case, <agreed that he would Ilot interfere with a co[[atera[ attack on a sister CO\lrt . to·wit the bankruptcy court. Meanwhile, the bankruptcy court entered a "lake not h i n~" judgment on all of Cadle's claims, The district cour. dismissing an appeal from the bankruptcy court, held thaI Cadle had no standing. as it did not own the claims, There was then an appeal to the Fifth Circuit on the RICO and fraud claim$ brought originally In the district court. Cadle argued that lhe first·to·file rule should not have been applied beelluse the bank r~lPtcy court never had juris. Wllbw 0 ,

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The CAdll! t;.)ml)(1llfllJ. Whul aburger of Alice, fllc.; M, l,-ou;sI! AlJdrews. 0101" 174 ~::~d 599 (5th Clr. May 7, 1999) 34 BCD 369. The District Court dismissed

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diction. The apptllMe p:lIlel said the rule is a discretionary doctrine. bul Ihal since Cadle queslions lhe contouN of the rule, it would consider the malter de novo. II $aid that it would not consider ownership, but only the district court's decision to leave the matter with the bankruPtcy cou rt where it first orig. ina l~d.

The appellate court first considered the relationship belwten the fi rst-to-file rule and collateral estoppel. In deciding that collateral estoppel did not apply, it rejected Cadle's argument as to lack of jurisdiction in the bankruptC)' court. It said that jurisdictional uncertainty in lhe firsl filed court. standing alone, is no reason not to arply the rule, and therefore the district court was correct in refuSing to Ilcccplihe case. [tthen added a cauea/ that the second filed court should not orlly rlot decide the merits, but should determine whether Ihe case is to be dismissed. stayed or transferred, It was of the opinion that the first filed court should decide If later filed similar issues should proceed before It. Thus, the district court should

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not have dismissed but should have remanded to the bankruptcy court for detennination as to whether the Hcond case should be continued in the bankruptcy court, and accordingly, it remanded the case to the district court with Instructions for remand to the bankru ptcy court Comment: Sometimu I wonder: [s not the bankruptcy courl simply an adjunct to the district court? Was the second case M core" or "related to" jurisdiction? To prevent further appeal. would it have been in the interest of judicial economy for the district courl to recall all of the proceedings concern· ing the controversy? Also, was the dis· trictjudge COrrect in calling the bank· ruptcy court a "sister cou rt," when lhe bankru ptcy court is not an Art icle III courl but a court of li mited jurisdiction? In any event, because of prior rulings, probably it was clear Ihlll the bankruptcy court would not favor Cadle. EI.v.nth Circuit .. we hi • •v.alon dIKh.rg• • xceptlon doee not .ppty to conduct 01

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debtor In ev.dlnt p.ym.nt o' t •• cHIbt Lqyoy Chorll's Crifflth v. t:.S.A., 174 t:3d. 1222 (l Ith Cir. May II , 1999). I am sorry if the heading confuses you. If you are puzzled, then you missed the key word "payment." !-IeTe are the facts. L.eroy owned several corporations which dabbled in adult entertainment. In September 1988, Ihe tlUl court found that he owed a cOl13iderable amount in back taxes, but fraud penaltJes were. not imposed. Shortly thmafte.r, he formed a corporation by the name of Ntw Wave, Inc. with his girlfriend. LInda. as sole stockholder. He later married Linda, and then transferred the shares of stock jointly to the two of them, This prevented a levy to collect the tlUles, because lllise\.s held as tenant in the entirely are not subject to 1f.'V)' unle" the judgment Is against both. Then in January 1993, he filed a chapter 7 followed by a complaint to determine dlKhargeability of his back taxes. The IRS ~screamed bloody murd~r, " relying upon BIlnkruptcy Code §523{a)(1)(E). This subuction prohibits discharge "with respect 10 which the

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debtor made a fraudulent return or willfully attempltd in any manner to defeat such tax. The bankruptcy court agreed with the IRS, holding that ~i n any manner" was broad enough to include con· duct amounting to evasion of paymC71f of tax. Mer the bankruptcy court's holding. the Eleventh Circuit issued III ro (-failS, 48 ~:3d . 1153 (1994), which held lhat the ab~ence of Ihe WQrds "or the P'lymenllhereor' from §523(a)( I)(C), while §6531 (2) of the t.R.C induded such words. mtant that whilt thert Coln· not be a discharge to willfully IItltmpt 10 evade or defeat the !.'IX at the tlSSl'ssmt!1ll 5tage, if such IKtion occurs at the payment stage, discharge is not denied. There was an appeal to the district court which distinguished Haas stating thaI Gri(flth had made fraudulent transfcrs to defeat pllyment of tax. The ~: Icventh Circuit panel dis,lgreed with this reasoning, il stnted that if Conllre!S had intend· ed this disl1nguishing factor, it would have w written the law. llull J/aus is still the law, and that purswnl to the !-Iaas panel, il must reverse. liaving so held, it then commented that it .....as troubled by the result, and that il really fe lt it was wron,l(, but cou'd do nothing else as under procedure it could not reverse ImOlher polne!. In conclusion, it invited 0I'l banc reconsideration: Commenl: If you have a fraudulent transfer with similar facts, be very cau11005 In advice ilS to granting of dbcharge. I suggest we await an en bane decision of the Eleventh Circuil on this point where there is a good chance that the panel's holding will De overturned. Meanwhile, the lower courts have no choice but 10 grant the discharge. M

8.nkruptcy Code neither at.y. nor e.tend. time to .ppe •. t.x •••••• m.nt RoixJrls u. Ccmm. of Jill. ReWlwI!. 1 75~:3d 889(llthCir. May 4,

1999), John and Chel)l RODerts filed an ilPpeal from the U.S. T:lx Court which had determined them liable for additional taxn including fraud penalties for years 1982- 1984. Timely petilions .....ere f'iled with the tax court for re-determination. The lax court entered its decision on Mllrch 23, 1993. Previously, although not knowil by the tax COllrt, on March 1, 1993, chapter I t petitions had been f'iled by the I~obe rts . On July 15, 1993. lM

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the Commissioner, having learned of the prior filed bankruptcy petition. moved to vacate the tax courl decision because bankruptcy was pending at the time of the decision. On July 19, the lax court vacated its prior decision. lIowever, on September 29. 1993, the bankruptcy court lifted the automatic slay to allow proceeding with the tax court CMe "to permit the as~essment. but not collection of any liability deter· mined by the tax court." On November 10, 1993, the bankruptcy court dis· mi.ssed the pending case, only to have another bankruptc), case filed on December 3(), 1993. On March 7, 1994. notices of appeal to lhe Eleventh Circuil were filed from the tax court decisions. On [)fcember 28. 199$, ilpproxilTllltely one)'eM later, the Ek",enth Circuit dismissed the apptll l ~ on the basis thai there was a lack of jllrisdiction because the Ilppeals were untimely. In order to meet this problem, Ihe debtors requu ted that the bankruptcy court lin. the automatic stay, which request WM granted. The case was appealed to the Eleventh Circuil. The opinion of former Chief Judge Tjol1at WilS substantially lIS follows: IRC7482 provides for notice 0( appeal to be flied within 90 d.1}'S "n.er entry o( the tax court's decision. which becomes/inal if no apptal nolice is fli ed. Ilere, the tax courl fe-entered i t~ dcci5ion o( October 27, 1993. Notice of liPpeal was filed on May 3, 1996. some t.....o and II half years later. The Commissioner contendtd that 1362(a)( I)(8) or lOS o( the Bankruptcy Code neither stayed nor extended surficiently the 9O-day period (or apt)eal from the tax court decisioo. The noberU con· vently relied on 1362(a)(I) as slaying the ~com me ncement or continuation ... of f1 judicilll, administrative, or other action or p roc~eding i1g.'inst the debtor... or to recover a claim against the debtor" and that the apptals .....ert continuat ions of the asseument procceding5. The Commissioner assened that §362(a)( I) did not apply because he did not flIe against I~obe rts, but that the Roberts flied a judicial proceeding against him on filinJ{ for a re-determination in the tax court , and that the tax court had no jurisdiction to assist the Commissioner In recovery of his cI~i m . The Eleventh Circuit clted Freeman II. Coli/miSS/Oiler, 799 ~:2d 1091 (51h Ci r. 1986) which held that an appeal from a tax court decision

merely continues a judicial proceeding, initiated by the taxpayer, and. therefore, neither the proceeding nor the appeal is againsl lhe taxpayer. Conversely, the Ninth Circuit had conciuded that such proceedings lire against the taxpayer. The Elevenlh Circuit rejected the reasoning of the Ninth Cl rcuil. The ~: I eventh Circuit stated Ih"t in !-'reylag v. Commissio/ler, III S,Ct. 263 1,2645, it wou held thai a tax court case is an independent judlcilll proceeding, and that the tax court has no execu· ti\o't, legislative or administrative power. It also renected here that the case .....as Initiated by Ihe d~btor, and, therefore, not against the debtor. It equated the Ill); court proceeding with flIing (or a refund, and then trying the case in the district court. Inso(ar lIS the lax o:)urt is concerned, it is a court o( limited jurisdiction and powers, which. alUlough in cer· tain circumstances might enjoin collection, has no stlltutOI')/ authority to aid in Collection: the government must bring suit for collection of a tax in the federal district court or II stale court. Thus. the 9O-day time for apptal .....as oot stayed under 1362(11)(1). The court further dis~d of IIrgumcnU lhat f362(a)(8) applied 115 to stnying proctedings before the U,S, Thx Court on the ground that after the tax courl re·enlered its decision on October 27. 1993. 1here wll.~ nOJlmceedillgthereafter in the tax court. Finally. it determined thai &mkruptcy Code Section 100(a) would nol help RoberU. for although it extended Ihe deadline until Febru/l1'}/28, 1994, the notice of appeal was not filed until 1996. Comment: The Eleventh Circuit rejected the Ninth's hoidillll: on similar facts, lind approved that of the ~·ifth . In Oldie, 174 1~3d 599 (5th Cir. MilY 7, 1999)34 BCD 369, the Finh Ci rcuit termed the bankruptcy court a "sisler court." Both lhe bankruptcy court al'ld tll); court are Article I coutU. /lad the t.1x court here held for the Rober!!, would the Commissioner have bttn allowed to appeal? WOllld the appeal have bun agoainsl the Roberts. and, thus, enjoined? Also, Ihe Eh:venth Circuit equated the procetdil'lg 10 filing (or refund in the U.S. District Court after paying the money. Would the lime for appeal also have run i( bankruplcy hlld intervened? These are merely questions. I have no quarrel with lhe decision.

~-- ~LASSIFIED

NOTICES

Aales: Member. : TWo Ir8e IIslings 0150 words Of leS5 per bar member per calendar year EXCEPT for "posItion wanted" or Mposillon offered" IIslings··S35 per Insertion of 50 words or less, $.50 per additional word; Nonmembers: $35 per insertion of 50 words or less, $.50 per additional word. Classllled copy and payment must be received according to the following publishing schedule: September '99 lssue-deadllne July I S, 1999: November '99 lssue---deadllne September 15, 1999. No deadline exten·

slons will be made. Send classified copy and payment, payable to The Alabama Lawyer, to: AI.lntma LawyerCluslfledl, clo Shannon Elliott, P.O. Sox 4156, Montgomery, Alabama 36101 .

SERVICES • TRAFFIC ACCID ENT RECONSTRUCT1 0N : Evnluation 01

highway deSign. Thll englnoof 1'108

reconstructed OWIr 3,000 accidents In 20 s lolol on highways , streets, rail· roods, and highway construction 2:008S InvoMng \rucl\a , vans, cars, pedestrl· ans, and farm Implements. Com!)Uter animation al1(l CAD drawings prepared to Mlustrale his opoions, 0v0I' 42 yGars' efl9lrlHrtng experience. Registered professional eng","r and lull ACTAR certiflaulon. Contact John T. Bates, P.E.. toN·free (8001 299-5950. OUVDRE EXPERT WITNESS: Expert wilneu In the IoIlow1ng areas: Driving under the InHuence, drug recognition, standard lield sobriety lesll, Operation and malntel'\8nce 01brealh·tastlng devices by a IOrmGr police oHleer (retired) IIr'1d 8 na!ional Instructor lor the National Highway Safety Tramc Administration. Alto 8n Instructor lor brasth·tasllng d8Vices. Chllrles E. Smith (C.E.S. Consulting. Inc.) Phone (561 ) 286·5761, taM (56 1)286·6732 or e.mall: DUICONSUL 0801.com. CN end laes sent upon requasl. FORENSIC OOCUMENT EXAMINER: Hpn(!writ!ng, typewriting, altored docu· menls, medical records, wills, contrac· tors. deedS, checo. llnonymous lat· tars. Court·quaJllltd, 1Wenty years' eMperlence. Certllie<l: American Board of Forensic DocUMent EMamlners. Member: America'! Society ot Questioned Oocum8f1t EMamlner•. American Academy of Forensic Sciences, Southeastern Assoclatlon 01 Forensic Document EMamlnera. Crlmlnlll and civil mattors. carney & Hammond FQrenSIC Document laboratory, 4076 Biltmore Woods Court, Buiord (Atlanta), Georgia

305 19. Phorle (770) fl I4·4440. FaM (770) 271 ·4357. • Y2K COMPLIANCE: Y&e.r 2000 com· pUlar and lagal systems compll8nce, Cortltlod computing prolosslonal, cerll· lied 0018 procossor, ovar 23 yaara' COfI1p;Jter systoms doslgn ond 80IIwara 8lIperience, JD, MBA, BS (accounting). Allorney providing legal assistance lor both vendor and end'user client Issues regartllng Y2K eompliSMCe. ContaCt Phillip G. Est". PhMe (256) 238-6529 or eSlesssOInI8ffl8rtpOrt.nBl. No repre. senlBlion Is made rIl8tth8 qutJliry 01 I6QaI services 10 be perfcxmtJd Is Qf881&r /film /he quality oIlegB1 fUI(. vices 10 be p6t1ormfKi by other lawyers. • LEOAL RESEARCH AND WRfTlNG: Jennifer L, Jones, l!censltd Alabama attorney and member 01 the Alabama Stale Bar, t724 3rd Avenue, North, Bessemer, Alabama. Phone (205) 424t 188. Resear'Ch and writing services on chili and criminal n'atters. No r&pre' senla/llXlls made thal llle qUIJliry of legsl services /0 be p6rformod Is 91'6eler Illsn the quality of legal ser· vlc6s perform9d by o lner lewyers.

HANDWRITING EXPERT: Forensic document oMomlnor. ABFDE certlliad, pll" president Southoastorn Association 01 Forensic Document EMamlnera. American Academy 01 Forensic Sciences Felow. Federal court qualified, Nineteen years' experi· ence, Civil IIr'1d crimlnsl, Haf\dwrlUng comP8rison, for~ry delection, detec· tion 01altered medical recortls and other oocumants. Contact L. Keith Nelson, Stone Mounlaln. Oeor,,18. Phone (770) 679·7224. ELECTRICAL EXPERT WITNESS: 1Wenly·lour years' In tile electrical Industry, Member of BOCA. CABO. IAEI, ICBO, saccI. OSHA·authorized Instructor, LPI certltled tighUng protec·

tlon. Nicer oerUlied. Mastsr electrician/contractor In 39 stata8, FH basis only, Contact Steven J, OWen, electrl· cal consult8nt, Phono (2051987·2502 . FaM (205) 982·9613. FORENSIC DOCUMENT EXAMINATIONS: Sevontoen years' torensle document eM8mlnatlons: 27 years' totol torenlle eMperlence. Retired senior documents sMamlner 1'111(1 discipline COQrdir'l8 tOr, Alabama Department 01 Forer\tlc Sciences. Member, Questioned Document SacUOn·American Academy ot Foren&IC Sciancss: SOIJtheestern Association of Foranllo Docum8f1t ElUlmlnera: SOIJthern AssocIation of Forensic Scientists: Alabama State AsaociatiOn of Forensic Sciences (past prelldant). Contact Richard A, Roper, Ph.D" 7956 Vaughn Road, ',4t , Montgomery 36116, Phone (334) 260· 2552, FSM (334) 260·7929. E·mall; ricflroperOaol.com. CONSTRUCTION MANAGER AND STRUCTURAL ENGINEER; Reglsterod prote.slonal engIneer In Alabam8, Mississippi snd louisIana. M.S.C.E. lWenty·seven yoars' eMparl· ance with chamlc81 pl8nts, pulp 8nd pepar, ro llnerlas, tertiflzer compleMes. petrochemical plants. commarclal and residential. EMtenslv8 eMperience with elruclurallallures and Insurance claims. Compular Elnlmlltlon lor tailed strUCtures. Negoliste construction claim. and medlete conslruct\on dis· p;Jtes. Contractor's Ilo4tnse In AI8bama 8nd Loulsl8n8 Is current. W~llastily. Contact Hal K. Cain, P.E" MobIle. Phone (334) 661·2605. Website: www.hkcsln.com. LEGAL RESEARCH AND WRmNG: Research and wrttlng 6tIrvices, including brlels, trial rTI8I'I'IORInda and oIher docvmanIS, Prompt dGadline 8eIvioes.

Experienced resetlrchtlr and wrltet. LIcensed Alabama anorr'oElY and member 0I1he Alabama Stale Bar Since 1979. Katherine S. Weed, P.O. Box 590104, Birmingham 35259. Phone (205) 941· 1496. No reptDS8fI(8tkx1ls made thallf16 quality 01 /e9lJ1 servk;es to IJe perlofmed Is (JretJIBr (flBn th6 quality of legal 66r· vk»s periorrrtIKJ by olher /swyers.

INSURANCE EXPERT WITNESS: Fee·only expert Wltr'leSS. Twenty years' In risk management Insurance consult· Ing. Pre-IIling 8Valu<l\lon, deposiTion and Trial. Pol cy covera98. C(lpTives, excess. deductlb!es, self Insurance, agot'lCy operations. dir9CI writers. property lOss preparation. Member S.R.M.C. Contect Douglas F. Miller. Employers' Alsk & Insurance Managemen;. Phone (205) 995·0002, Birmingham or WATS (600) 462-5602. TRAFFIC ACCIDENT RECONSTRUCTION AND ROADWAY DEFECTS: Case evaluatIOn. L&9&lles· limony. Vehlde accldant repo rt analy· sis, speed calculations, sighting dis· lance. pave edge drop-oll. scale draw· Ing. etc. Registered ProfessIOnal Engineer. Technical BOCiety member. Over 20 veers' engineering experience. Tra!llc accident reconstruction training. Bacl<ground Includes technical and communlC(lllon skills, adverse rial expe· rlence, and 10g$1testimony <lnd process femillarity. Contect John E. RolnhOrdl. P.O. Box 6343. Huntsville. 35824. PhOne (256) 837·634 1. ESTATE FIREARMS APPRAISALS AND LEGAL SALES: Southern Fil'earma Appraisals. Inc. 01 Homewood can UC8I'lain the true value 01 the rilles. plslols.

8ho\gtXIs and reIMId items indudW'og mill· taria, knives and ~ eoIIecIibIeS. In your

dlenl's COllection (J( estate. Oon~ expose your dlenl's 8$l<Ite 10 vIoI&tlons 01 Federal Area.rms lAws (Brady II). po68lbIe wr0ngful death lawsuits. and oth&r unwanted and UI'1I'MIC8SS8ry PI'ObIOmI by allowing hendguns or long gU'lS to be SOld 01 estate sales without mandatory back· ground check5 on th e buyers. We will appmise and teoa'ly sell the ffrearms tor your "rm O!' dl8f'lt while completing ell of the necessary FBI and BATF reqUmments to protect your ctIont arxvor the estale. We Eire experts on U.S.1IOd lor· eI!11ltraarms and the laws that goo.oern \hair sale, as wailS war tropt'rj fireElrms, swords and mititatoa. Expert witnesses lor 881a1e and insurance purpoees. S8Mng the South lor nine yoars. fully IiconSGd, oourt-e~perleoced, privatEiand law firm referellCEt$ (lV811tW1e. Slave Ihle OOdress: S.FA Inc.. 709 Cell Grove Road. Homewood. Phone (205) 945- 1898. Our hOurs OM l Qa.m.· Sp.m.. Monday thru Saturday. Visit 0tK Web alto at _ .mem· bers.eoI.comISFlrearrns.Alor'odell.htmi O!' email us at SAreermsAOeol.com. TRANSLATION OF DOCUMENTS ANO EDITING: Fluently bilingual (EngliSh end FrElr1Ch) lawyer'. Member of the Bar oltha Province 01Quebec since 1987 and of the Alabama State Bar since 1998. Experienced In trans· lallng and stream'lnlng logal docu· ments. Resumo and foe schodule avail· able upon request, Contact Adole Turgeon Smith. Selma, PhOne (334) 875-511 3. No representa/Ion Is mtJdtJ IM t the quality oIlegal S6rvices to be PflrlorrtI(J(J 1$ {)rSM6r than the quality of

A full service InvBstigative bureau serving the legal community throughout the Southeast (survBillance, backgrounds , asset checks, etc.). Call Coburn Investigative Agency at 1 ·800-CIA~ 0072 or visit ou r web Site at www.cia007.com. Gathering IntelligencB ,

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POSITIONS OFFERED • ATTORNEY POSITION: Montgomery law nrm seeking attorneys With strong cliont counseling skills to become part of a growing statewide \&gal benefit plan practice. 'TWo yeal'S' experience In private or government practice prolorred. Genaral civil and criminal practice backgrounds preferred over "lIpe' cially· pracllce. Competitive ealerles. good bene lit package'. and i'\On-tratlitlonal work environment make this an exciting opportunity. Send confidentIal resumes to: AnO!'ney PosItion, P.O, Bo~ 230254. Montgomery. 36t23. LITIGATION ATTOANEY: Wilkes & McHugh. a growing la....' flrm with oUlces throughOut the SOUtheast U.S .• seeks an associate lOr our Birmingham ollice. Can(ll(lflles to possess a mini· mum of three to live yeR ts' prior legal eXJl&rlenco (criminal prosecution e~ pe rlence Is preferrlKl); be well-versed In all aspects 01litigation. Including prepa· ration and rOlllew of legal dOcuments. Interviewing cllontslwl tnesseslexperls, conducting depositions, and partaking

In hoaringslmedlatlonal'trlall. In addl· tlon. applicants are to be memb$f$ 01 the Alabama Stata Bar and nallA !lxcat· lent academic cr&denllals. We otler a ganerous salaryr'benefils paCkage. Send r"ume and 68lary requirements In confldonce to 830 Franklorcl Drive. Brandon. Florida. 3351 1. EOE. ATIORNEY POSITIONS: Established, growing law Ilrm with corporate client base seeking ,norney' with three 1o six years' experIence In litigation or cor· poralo lOW. Good 001'101111. oxcellonl loog·term careor opportunity. ConllclonUal Inquiries should be direct· ed 10 HIring Manager, P.O. Box 830, Montgomery, Alabama, 36 101'()830. ATIORNEY POSInONS: A&&ocIale and partner IeYellawyers ate noecIed lor openings In AIlbalntl and throoghoollhe South. Practice areas include IltIgatlon, roaI081810, taJc, eorpor1Ite tran68ctions, omploymef1t, and banking law. Strictty confidential. Contacl Richard G. Brod<. Esq. at SpeciElI ~ , PhOne (205) 870-3330. x. 102, tax (205) 870-3337 or .mall to r1ChIIrdOamicuI-8It1fflng.com. ATIORNEY JOBS: Harvard L8W School calts /)(.Ir publlcallon, ·Probably the most comprehensive source 01 nationwlde and InlernaUonal job open· Ings received by our oWce and should be the startfng point 018ny Job search by la\\YGrs looking to chango }obS; Each monthly Issua ¢Qfltalns 500-500 CUffent (publlc/pm'ate ~or }obs), $45·3 months, $75·8 months, Conlact: Legal Employment Report, 1010 Vermont Avenue, NW, Suite 408·AB, Washington, DC 20005, (800) 296· 9611 . Visa/MClAWEX. Webshe: www.81IorneyjObs.com

ATTORNEY POSInONS: Lohman, Siegal & Payne, P.C.1s seeking anorneys In Ihe fields at aslal9 planning, oorpoflllo, taJc and commordal (Gal &$l8le. Three to 30 years' experience IS desired. Send roaume to the IIrm In C8re 01 HIring Partner at 600 N. 20th Slroot, Suite 400, BIrmingham. 35200. Compensation basad on 8)q)8r1ence. TRANSACTION ATIORNEY: Sophl8UcatGd natJonal business practice In smail-firm senlng. (jraot work, com· pensatlon $I"'Id qualty at ~fe. Leo & Associales, Huntsvlle, Fax resume In COtItldoncG to K. Leo, (256) 53906024.

POSITIONS WANTED ESTATE AND TRANSACTIONAL ATIORNEY: Experienced OSlI\10 end

transactional anorney s&eks eareer move to Baldwin or Mobile County. 1991 graduate 01 a top-rated Virginia tllw SChOOl. Admitted to practice In Alabama. Excellent reforence.. Call (770) 886-5890. No ~6s&fl161ion Is

Do You Hale

r"I'IadiJ Ih.lIlho qV(ll/ty of 10f}81 S6rv/c(JS 10 b8 PBrlormild Is grea ter than Iho quality 0116{}S1 ssrvfces to be per· formed by Qlh6r l.tW)'Grs.

More Wurk Th:1II Ti me '!

ATIORNEY POSmON SOUGHT: Sole practitioner, odmlnGd \0 bar In 1994, seeking position with lWllalVmedlur"l'l·slze law firm. Areas 01 practice Include real osl8te, probate, domestic relations and buslnoss law. Strong banking back· ground (15 years' prior experience). Plaase respond 10; Attorney, P.O. Box 1963, Montgomery, 36102· 1963. No mprsssntalion Is madl trill/the quslity 011&g8/ services 10 be perlorm6d Is

If you don't have the time necessary to research your opponent's arguments or write your brief, thell

gfoa/of than Ihe quality of klQal 56!' vices 10 b6 porlormBci by othOf lowyors.

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FOR SALE LAWBOOKS: William S. Heln & Co" Inc., serving ttlO legAl community b more than 70 yea", II 'till your number one source lor ~I!lng IawbOOkS. Save 50 to 70 percenl on slr.gle vol· umes, malar sels, !edend end state, lor· elgrw'\ntemaUonalIaw, rareiantIQuaOOn !<tw. Appmlsal servIoaI available. Phone (800) 496-4346. FaJe (716) 883-5595. Web site: W\+W,wsh6ln.com1Jsed·books. PHONE SYSTEM: Pannsonlc Digital Telephone System &q~pped 101' 16 Incoming Unes and 40 cUgllaJ lele· phones. Expandable 1048 lines and 144 telophones. Includes 19 22'button phones with LCO and .peakerphone and 12 22·bunon phones and hands· Iree answerba,d(. Also Includes one 72· button opemtor console (OSSlBLF). It hils remota access [n torlflce lor ollsllo programming. $12.500. Contact Sandy Brown at (334) 261 ·6104 1.

FOR RENT SOUTHSIDE OFFICE: Five PoInts, Southside Law Ofllce Available for Solo Attorney(s), 111 7 22nd Street. South, Birmingham. "VIrtual" oHlce or ·corpo· rate Image" also all8l1able lor those needing limited conlerence room time, Aeceptlonisl and other ancillary ser· \llces prOllldod. Cell Tom Plouff at (205) 939·0000. •

As an anomey with eighteen yean of cxpcri~nce in te$cnt~h lind writinS I have tbe tUne neOllnllt)' (or the 'us· taineu. unin\lilnupted teSellrch 10 ottcn need6(1 to win 'f;UC. Wh~n you r cue h (ully rucllrched you c an reprcunt your client with mort conn· dcncc IUId be better prepllrcd in court. I IUI\ .vililllbl, (or .hort ruean:b queJtlon. Or lengthier brief•. My nlle Is $35.00 p:t hour. Kath~rln~ S. Weed p, O. Box 5901001 BinnlnJhl&ll1, AL 35Z59 (205) 9" 1. 1"96 Kl weed@lIOl.com

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1999 Fall Calendar SEPTEMBER

10 17 24

OCTOBER

NOVEMBER

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DECEMBER

2 2 3 3 8 9 9 10 15 16 16 17 17

JANUARY 2000 Jan28

Social Security Issues Affecting the Elderly & the DisabledAdult Emerging Issues In Family Law Practice Practical Criminal Defense Real Estate Law Tort Law Family Law Retreat to the Beach Discovery Practice & Settlement of Cases Business Litigation Employment Lawtor Public Sector & Government lawyers Fraud Developments InAlabama Trial Skills Bankruptcy Update Federal Tax Clinic Depositions In Montgomery Motion Practice Depositions in Mobile Estate Planning Jury Selection Alabama Update in Mobile Depositions in Birmingham Alabama Update In Montgomery Depositions in Huntsville Alabama Update In Huntsville Video Replays in Birmingham Alabama Update In Blnnlngham Video Replays in Tuscaloosa

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